Torts

Front 1

Negligence

Back 1

Duty
Breach of that Duty
Causation
Damages

Front 2

Duty

Back 2

Maj: Duty owed to only those that are foreseeable and in the zone of danger.
(Cardozo)
Min: Duty owed to all (Andrews)

Front 3

SOC (Standard of Care)

Back 3

Absent special relationship, SOC is one of reasonableness.
Reasonable and Prudent Person in the Same or Similar Circumstances.
Judged objectively.

Front 4

SOC - Heightened SOC

Back 4

People entrusted with a heightened SOC are liable for even slight negligence.
Landowners, professionals, and common carriers.

Front 5

BREACH

Back 5

Def fails to conform to the SOC.
SOC is one of reasonableness OR heightened SOC.

Front 6

Breach - Alternate Theories

Back 6

1. Res Ipsa Loquitur
2. Negligence Per Se
3. Custom and Usage

Front 7

Causation

Back 7

Actual & Proximate

Front 8

Actual Causation

Back 8

"But for" causation.
The defendant is only liable if the injury would not have occurred but for his negligence.

Front 9

Proximate Cause

Back 9

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.

Front 10

Damages

Back 10

Plaintiff must prove damages in the form of physical injury or property damage.
Economic harm alone is insufficient for a claim of negligence.

Front 11

Defenses

Back 11

1. Contributory negligence.
2. Comparative negligence.
3. Assumption of risk.

Front 12

Eggshell Plaintiff - Prox Cause

Back 12

Per se foreseeable. A pre-existing medical condition that makes plaintiff more susceptible to injury

Front 13

Contributory Negligence

Back 13

Also discuss comparative negligence if contributory negligence applies.

Front 14

Defamatory Statement

Back 14

Injures a plaintiff's reputation, and tends to subject plaintiff to hatred, contempt, and ridicule or financial injury

Front 15

Defamation - Common Law

Back 15

1. Defamatory statement
2. Of or concerning plaintiff
3. Publication
4. Damages

Front 16

Of or concerning plaintiff

Back 16

Must establish a reasonable recipient of the information would understand that the statement referred to plaintiff.
Consider COLLOQUIUM if plaintiff isn't explicitly named.

Front 17

Publication

Back 17

The statement be communicated to a 3p who understands the defamatory meaning and its application to plaintiff.

Front 18

Damages

Back 18

Type of damages depends on the type of defamation.
Consider LIBEL or SLANDER

Front 19

Libel

Back 19

Defamation that is written.
General damages are presumed.

Plaintiff may offer actual evidence of damages.

Front 20

Libel per se

Back 20

Minority Jurisdictions:
Libel that is defamatory on its face.

Front 21

Libel per quod

Back 21

Minority Jurisdictions:
Libel that is not defamatory on its face.

Front 22

Slander

Back 22

Defamation that is spoken.
Plaintiff must prove damages unless the defamation is slander per se.

Front 23

Slander per se

Back 23

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.

Front 24

Constitutional Defamation

Back 24

When defamation involves a matter of public concern, the plaintiff must prove two additional elements:
1. Falsity; and
2. Fault

Front 25

Matter of Public Concern

Back 25

Is this a matter of public concern? This is usually debatable. Use all of the facts.

Front 26

Falsity

Back 26

Is the defamatory statement false?

Front 27

Fault

Back 27

Is plaintiff a private or public figure?
Private: negligence must be shown.
Public: Malice must be shown.

Front 28

Malice

Back 28

KNOWLEDGE that the defamatory statement was false or RECKLESS DISREGARD as to the statement's truth.

Front 29

Negligence (Defamation)

Back 29

Discuss REASONABLENESS and CARELESSNESS on the part of defendant.
Also applies when the plaintiff is a public figure.

Front 30

Defenses to Defamation

Back 30

1. Truth (doesn't apply in const defamation - plaintiff has burden of proving falsity)
2. Absolute Privilege
3. Qualified Privilege

Front 31

Defense to Defamation: Absolute Privilege

Back 31

1. During judicial proceedings;
2. By legislators in debate;
3. By Federal executive officials;
4. In compelled broadcast; and
5. In between spouses.

Front 32

Defense to Defamation: Qualified Privilege

Back 32

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.