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32 Cards in this Set

  • Front
  • Back
Negligence
Duty
Breach of that Duty
Causation
Damages
Duty
Maj: Duty owed to only those that are foreseeable and in the zone of danger.
(Cardozo)
Min: Duty owed to all (Andrews)
SOC (Standard of Care)
Absent special relationship, SOC is one of reasonableness.
Reasonable and Prudent Person in the Same or Similar Circumstances.
Judged objectively.
SOC - Heightened SOC
People entrusted with a heightened SOC are liable for even slight negligence.
Landowners, professionals, and common carriers.
BREACH
Def fails to conform to the SOC.
SOC is one of reasonableness OR heightened SOC.
Breach - Alternate Theories
1. Res Ipsa Loquitur
2. Negligence Per Se
3. Custom and Usage
Causation
Actual & Proximate
Actual Causation
"But for" causation.
The defendant is only liable if the injury would not have occurred but for his negligence.
Proximate Cause
Exits when the act and resulting injuries were a foreseeable result of defendant's conduct or defendant's conduct was a substantial factor in causing the injury.
Damages
Plaintiff must prove damages in the form of physical injury or property damage.
Economic harm alone is insufficient for a claim of negligence.
Defenses
1. Contributory negligence.
2. Comparative negligence.
3. Assumption of risk.
Eggshell Plaintiff - Prox Cause
Per se foreseeable. A pre-existing medical condition that makes plaintiff more susceptible to injury
Contributory Negligence
Also discuss comparative negligence if contributory negligence applies.
Defamatory Statement
Injures a plaintiff's reputation, and tends to subject plaintiff to hatred, contempt, and ridicule or financial injury
Defamation - Common Law
1. Defamatory statement
2. Of or concerning plaintiff
3. Publication
4. Damages
Of or concerning plaintiff
Must establish a reasonable recipient of the information would understand that the statement referred to plaintiff.
Consider COLLOQUIUM if plaintiff isn't explicitly named.
Publication
The statement be communicated to a 3p who understands the defamatory meaning and its application to plaintiff.
Damages
Type of damages depends on the type of defamation.
Consider LIBEL or SLANDER
Libel
Defamation that is written.
General damages are presumed.

Plaintiff may offer actual evidence of damages.
Libel per se
Minority Jurisdictions:
Libel that is defamatory on its face.
Libel per quod
Minority Jurisdictions:
Libel that is not defamatory on its face.
Slander
Defamation that is spoken.
Plaintiff must prove damages unless the defamation is slander per se.
Slander per se
1. Adversely reflects one's conduct in business or profession;
2. Accuses one of having a loathsome disease;
3. Accuses one of a guilt involving crime of moral turpitude; or
4. Suggest a woman is unchaste.
Constitutional Defamation
When defamation involves a matter of public concern, the plaintiff must prove two additional elements:
1. Falsity; and
2. Fault
Matter of Public Concern
Is this a matter of public concern? This is usually debatable. Use all of the facts.
Falsity
Is the defamatory statement false?
Fault
Is plaintiff a private or public figure?
Private: negligence must be shown.
Public: Malice must be shown.
Malice
KNOWLEDGE that the defamatory statement was false or RECKLESS DISREGARD as to the statement's truth.
Negligence (Defamation)
Discuss REASONABLENESS and CARELESSNESS on the part of defendant.
Also applies when the plaintiff is a public figure.
Defenses to Defamation
1. Truth (doesn't apply in const defamation - plaintiff has burden of proving falsity)
2. Absolute Privilege
3. Qualified Privilege
Defense to Defamation: Absolute Privilege
1. During judicial proceedings;
2. By legislators in debate;
3. By Federal executive officials;
4. In compelled broadcast; and
5. In between spouses.
Defense to Defamation: Qualified Privilege
1. Reports of official proceedings;
2. Statements in the interest of publisher;
3. Statements in the interest of the recipient; and
4. Statements in the common interest of the publisher and recipient.