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166 Cards in this Set

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What are the prima facie elements of intentional tort?
"1. Act by defendant; 2) intent [specific intent to bring about the specific conduct or general intent - D knows with substantial certain that the consequences will occur]; 3) Causation [substantial factor test]
What are the prima facie elements of the tort of battery?
"1. Harmful or offensive contact; 2) with plaintiff's person; 3) intent; 4) Causation
What are the prima facie elements of the tort of assault?
"1. An act by defendant that causes a reasonable apprehension (not to be confused with fear) in plaintiff; 2) of immediate battery; 3) intent; 4) causation
What are the prima facie elements of the tort of false imprisonment?
"1. Act or omission by defendant that confines or restrains plaintiff; 2) to a bounded area; 3) intent; 4) causation
NOTE - no damages required but to prove an act or omission by D that confines or restrains P, P must either have knowledge of the confinement or have been harmed by it to prove element
What are the prima facie elements of the tort of intentional infliction of emotional distress?
"1. Extreme and outrageous conduct by defendant; 2) intent or recklessness; 3) causation; 4) damages - severe emotional distress
What are the prima facie elements of the tort of trespass to land?
"1. Physical invasion of plaintiff's real property; 2) intent to enter the land; 3) Causation

NO DAMAGES REQUIRED
What are the prima facie elements of the tort of trespass to chattels?
"1. Act by defendant that interferes with plaintiff's right to possession in a chattel; 2) intent, 3) causation, 4) damages [damage does not necessarily have to be to chattel but to the possessory right]
What are the prima facie elements of the tort of conversion?
"1. Act by defendant that interferes with plaintiff's right of possession in a chattel; 2) interference is so serious that it warrants recovery of the full value of the chattel; 3) Causation

NOTE - NO DAMAGES REQUIRED!!

Remedy = fair market value of the chattel or replevin (possession)
What are the five defenses to intentional torts?
1. Consent; 2) Necessity; 3) Protective Privileges [self-defense, defense to 3rd persons, defense of property]; 4) Privilege of Arrest; 5) Parental Discipline of Children
How much force may a defendant use?"
"When defendant reasonably believes that he is being or is about to be attacked, he may use as much force as reasonably necessary to protect himself
Is the defense of self-defense available to an initial aggressor?
Not generally, but it may be allowed if the other party escalates the fight.
When is the defense of defense of others available in torts?
When the actor reasonably believes that the person being defended could have used force to defend himself.
When is the defense of defense of property available in torts?
Defendant may use reasonable force to prevent commission of a tort against his property. However, defendant must first make a request to desist or leave. Defendant can use force in hot pursuit of a tortfeasor.
Does defense of property allow the use of deadly force in torts?
Not unless the invasion of property also entails a threat of bodily harm.
When must one use peaceful means to recover property in torts?
When the tortfeasor came into possession lawfully, e.g., conditional sale.
What are the prima facie elements of the tort of defamation?
1. Defamatory language specifically identifying P; 2) Publication to 1 or more persons other than P [doesn't require intent, can be negligently published and still be liable]; 3) Damages Maybe
What kind of damages must a plaintiff show in a slander case?
Plaintiff must prove special (pecuniary) damages, unless the slander is slander per se.
What are the four categories of slander per se in torts?
Defamatory statements that 1) relate to P's business or profession, 2) accuse P of crime of moral turpitude, 3) impute on the chastity of a woman, 4) P has loathsome disease
Are radio and television broadcasts of defamatory language slander or libel?
Most courts treat them as libel, even though they're spoken.
What kind of damages must a plaintiff show in a libel case?
There is no need to prove special damages; general damages are assumed.
Who may be liable for published defamation?
The author or speaker, and, to the same extent, the primary publisher (e.g., newspaper, TV station, etc.). A secondary publisher (one who sells papers or plays tapes) may be liable if it knows or should know of the defamatory content.
What are the additional elements necessary for prima facie defamation when the statement is a matter of public concern?
1) Must prove falsity of the statement; and 2) must prove fault

To prove fault:
where P is a public figure - must prove malice (intent or recklessness)
where P is a private figure - must prove negligence
What are the four branches of the tort of invasion of right to privacy?
"1. Appropriation of plaintiff's picture or name: Unauthorized use for commercial advantage [newsworthiness exception - outlets of the media are permitted to use image or name];

2) Intrusion upon P's Seclusion or Affairs - act of prying or intruding must be highly offensive to a reasonable person [must have reasonable expectation of privacy];

3) Publication of Facts Placing P in False Light - attributing views or beliefs to P that he does not hold; must be widespread dissemination and must be highly offensive to reasonable person [but if matter of public concern - malice required];[good faith belief in truth of statement does not get you off the hook]

4) Public Disclosure of Private Facts about P - widespread disclosure of confidential information about P which reasonable person would find highly offensive
What kind of damages must an invasion of right to privacy plaintiff show?
Ordinary damages, like emotional distress and mental anguish, are sufficient. There is no need to show special damages.
What are the prima facie elements of the tort of intentional misrepresentation?
i. Misrepresentation of material fact
ii. Scienter – when D made statement, she knew or believed it was false or that there was no basis for that statement
iii. Intent – to induce P to act or refrain from act in reliance on the misrepresentation
iv. Causation (actual reliance)
v. Justifiable Reliance; and
vi. Damages (pecuniary loss)
What are the prima facie elements of the tort of negligent misrepresentation?
i. D must make a misrepresentation of fact in a business or professional capacity
ii. Breach of duty toward particular P
iii. Causation
iv. Justifiable Reliance;
v. Damages
What are the prima facie elements of the tort of interference with business relations?
"1. Existence of a valid contractual relationship between plaintiff and a third party or valid business expectancy of plaintiff;
2) knowledge of the relationship or expectancy;
3) intentional interference that causes breach of relationship or expectancy;
4) Damages - party breaches contract
Privilege to Induce Breach = when D has special relationship with one of the contracting parties - Advisory Figures - parent, lawyer, clergy, accountant
What are the prima facie elements of the tort of malicious prosecution?
i. Institution of criminal proceedings
ii. Termination in P’s favor
iii. Absence of probable cause for proceedings
iv. Improper purpose
v. Damages
What are the prima facie elements of the tort of abuse of process?
i. Wrongful use of process for an ulterior purpose, and
ii. Definite act or threat against P in order to accomplish an ulterior purpose
What are the prima facie elements of the tort of negligence?
"1. Duty to conform to a particular standard of conduct; 2) Breach of Duty; 3) Causation [Factual and Proximate]; 4) Damages
How do you know if a secondary plaintiff is foreseeable or not for purposes of negligence liability?
Most states hold that a secondary plaintiff can recover if he was in the foreseeable zone of danger, within which a reasonable person would have seen that there was a risk of injury to him under the circumstances.
What is the basic standard of care in a negligence action?
The objective, reasonably prudent person under the circumstances. Mental deficiencies or inexperience are not taken into account, but the reasonable person IS held to have the same physical characteristics as defendant.
What is the standard of care for professionals in a negligence action?
A professional or someone with special occupational skills must possess the knowledge and skill of a member of the profession/occupation in good standing in a similar community.
What is the standard of care for medical professionals in a negligence action?
Standard of care of the average member of that professional practicing in a similar community [city doctors compared to big city; rural doctors compared to rural] [customary practice of the profession is key]. Further, doctors have a duty to disclose risks and obtain informed consent.
EXCEPTION - specialists are evaluated on a nationwide standard - not relation to community
What is the standard of care for children in a negligence action?
Children are held to the standard of others of like age, experience, education, and intelligent. If they are engaged in an "adult" activity, however, they may be required to conform to an adult standard.
What is the standard of care for common carriers/innkeepers in a negligence action?
A very high standard of care, with liability for even slight negligence towards passengers/guests (NOT others).
What is the standard of care for auto drivers to guests in a negligence action?
Ordinary care.
What is the standard of care for bailors in a negligence action?
"It depends.
What is the standard of care for bailees in a negligence action?
"It depends on whom the bailment benefits.
What is the standard of care in emergency situations in a negligence action?
Defendant must act as a reasonable person would under the same emergency conditions. BUT the emergency will not be considered if it is of defendant's own making.
What is the standard of care owed by landowners to those off the premises in a negligence action?
There is no duty to protect one off the premises from natural conditions. There is, however, a duty for unreasonably dangerous, artificial conditions/structures abutting adjacent land. Further, landowners must not act so as to create an unreasonable risk of harm to others off the premises.
What is the standard of care owed by landowners to those on the premises in a negligence action?
It depends on the plaintiff's status.

Unknown Trespassers - No Duty

Known Trespassers - Duty to protect against dangerous, artificial conditions on the land that are hidden/concealed

Licensees - Duty to protect against dangerous natural and artificial conditions on the land that are hidden/concealed

Invitees - Duty to protect against hidden, dangerous natural and artificial conditions on the land that could be discovered by landowner through reasonable inspection
Who is an invitee for purposes of premises liability?
One who enters for a purpose connected with the business of the landowner or enters as a member of the public for a purpose for which the land is held open to the public
What standard of care does a landowner owe to users of recreational land in a negligence action?
None, if he permits the public to use the land for recreational purposes without charging a fee. The ordinary standard of care for "active operations" applies, however.
What standard of care does a lessee owe in a negligence action?
Only to maintain the premises.
What standard of care does a lessor owe in a negligence action?
Duty to warn of existing defects of which he is aware or has reason to be aware, and which he knows the lessee is not likely to discover on reasonable inspection. If lessor has a covenant to repair, he is liable for unreasonably dangerous conditions. If he volunteers to repair, he is liable for negligent repair.
What standard of care does a vendor of realty owe in a negligence action?
A vendor must disclose concealed, unreasonably dangerous conditions that he is or should be aware of, and that he knows vendee is unlikely to discover on a reasonable inspection.
What is the attractive nuisance doctrine in torts?
"A landowner has a duty of ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property. Plaintiff must show:


a. Known Dangerous Condition - a dangerous condition on the land that the owner is or should be aware of
b. Knowledge that Children Frequent Land - owner knows or should know that children frequent the vicinity of the condition
c. Danger B/C Children Won’t Appreciate the Risk - the condition is likely to cause injury because of the children’s inability to appreciate the risk; and
d. Balance Expense of Remedying vs. Harm - the expense of remedying the situation is slight compared with the magnitude of the risk
What is the standard of care regarding negligent infliction of emotional distress?
Defendant must not (1) cause a threat of physical impact that leads to emotional distress, or (2) directly cause severe emotional distress that by itself is likely to result in physical symptoms.
When may a bystander outside the zone of danger recover for negligent infliction of emotional distress?
"If Plaintiff sees Defendant cause physical harm to another and 1) P and the person injured are closely related; 2) P was present at scene of injury; 3) P personally observed of perceived the event

NOTE - in NY you must be in the zone of danger!
When is there an affirmative duty to act in torts?
General Rule - NO DUTY TO ACT
Exceptions:
"1. Assumption of duty by acting - once undertake to aid someone MUST do so with reasonable care; 2) Special Relationship to the Victim [shopkeepers, innkeepers, common carriers]; 3) When you create the peril
What is the doctrine of negligence per se?
A theory of breach of duty in torts. Plaintiff can establish breach as a matter of law by showing violation of an applicable statute. Causation and harm must still be shown.

The statute must be designed to protect: same Class or Persons and Class of Risks involved in the incident
EXCEPTIONS

Where compliance with the statute would be more dangerous than non-compliance!

Where compliance is impossible!
What is the doctrine of res ipsa loquitur?
Method of showing breach when you don't have the exact details of what happened - gets you to the jury. Something that ""speaks for itself."" Plaintiff must show that the accident is normally associated with negligence AND the instrumentality of the accident was within D's control!
What is actual causation in torts?
"But for" causation.
What is the substantial factor test in torts?
A test for actual causation in cases where several causes bring about an injury. If defendant's conduct was a substantial factor in causing the injury, actual causation is satisfied.
What is the test for proximate causation in torts?
The foreseeability test: defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his conduct.
How far does a defendant's tort liability extend, for proximate causation purposes, if his actions directly caused an injury?
Defendant is liable for all foreseeable harmful results, even if unusual (such as medical malpractice, infection or disease after or at the hospital, etc., intervening negligent rescues, intervening reactionary or protective forces).
What is the difference between independent intervening forces and superseding forces for purposes of proximate causation in torts?
"Independent intervening forces may be foreseeable if defendant's actions increased the risk of harm from these forces, causing foreseeable results. They can include negligence, crimes, and intentional torts of third persons, and acts of God.
What is the eggshell skull rule in torts?
"You take your plaintiff as you find him." Defendant is liable for all harm, even if the extent of damages was unforeseeable, as in the case of a plaintiff with an eggshell skull.
What is the last clear chance doctrine in torts?
It is a defense to contributory negligence. The person with the last clear chance to avoid an accident is always liable. For example, if plaintiff is in helpless peril, the defendant will be liable if defendant knew or should have known of plaintiff's situation.
What is the doctrine of assumption of the risk in torts?
"Plaintiff may be denied recovery if he knew about the risk and voluntary acted anyway
When is assumption of the risk implied in torts?
If the risk is one that an average person would clearly appreciate.
What are the prima facie elements of strict liability in torts?
"1. Absolute duty to make safe based on nature of activity; 2) Causation; 3) Damages
When is strict liability imposed in torts?
"1. Trespassing animals or (as to NON trespassers only) wild animals; and 2) Defective Products
What are the five theories of products liability in torts?
"1. Intent; 2) negligence, 3) strict liability, 4) breach of implied warranty of merchantability and fitness, 5) representation
What are the two elements common to any theory of products liability in torts?
"1. A defect in the product and 2) existence of the defect when it left D's control
What are three types of defects in products liability?
"1. Manufacturing defects: The product is more dangerous than it would be if manufactured properly; 2) Design defect - alternative cost-effective, safe, reasonable mode of designing product exists; 3) Warning defect - if can't make safer physically have to warn - must be prominent and clear
Who has standing to sue on a products liability theory?
Any foreseeable plaintiff, so users, consumers, and bystanders can all sue.
What is the "fireman's rule" in torts?
A fireman or police officer is barred from recovering in negligence for injuries caused by the risks of a rescue.
What is a private nuisance in torts?
Nuisance is not a cause of action, but a kind of harm. Private nuisance is a substantial, unreasonable inteference with a private individual's use or enjoyment of property over which he has a right of immediate possession.
What is a substantial interference for private nuisance purposes?
Interference that is offensive, inconvenient, or annoying to the average person in the community. It is not substantial if it is merely the result of plaintiff's hypersensitivity or specialized use of the property.
When must a private nuisance plaintiff show unreasonable interference?"
"Interference that causes an injury whose severity outweighs the utility of defendant's conduct.
What is a public nuisance in torts?
Nuisance is not a cause of action, but a kind of harm. Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community, e.g., using a building for criminal purposes like running a shooting gallery.
When can a plaintiff recover for public nuisance in torts?
Recovery is only allowed if plaintiff suffered unique damage not suffered by the public at large.
What are the prima facie elements of intentional tort?
1. Act by defendant;

2. Intent (either specific or general);

3. Causation; and

4. Harm.
What are the prima facie elements of the tort of battery?
1. Harmful or offensive contact;

2. To plaintiff's person;

3. Intent; and

4. Causation.
What are the prima facie elements of the tort of assault?
1. An act by defendant that causes a reasonable apprehension (not to be confused with fear) in plaintiff;

2. Of immediate harmful or offensive contact;

3. Intent; and

4. Causation.
What are the prima facie elements of the tort of false imprisonment?
1. Act or omission by defendant that confines or restrains plaintiff;

2. To a bounded area;

3. Intent; and

4. Causation.
What are the prima facie elements of the tort of intentional infliction of emotional distress?
1. Extreme and outrageous conduct by defendant;

2. Intent or recklessness;

3. Causation; and

4. Damages - SEVERE emotional distress.
What are the prima facie elements of the tort of trespass to land?
1. Physical invasion of plaintiff's real property;

2. Intent; and

3. Causation.
What are the prima facie elements of the tort of trespass to chattels?
1. Act by defendant that interferes with plaintiff's right to possession in a chattel;

2. Intent;

3. Causation; and

4. Damages (can simply be to the possessory right).
What are the prima facie elements of the tort of conversion?
1. Act by defendant that interferes with plaintiff's right of possession in a chattel;

2. The interference is so serious that it warrants requiring defendant to pay the chattel's full value;

3. Intent; and

4. Causation.
What are the five defenses to intentional torts?
1. Consent;

2. Defense: Self-defense, defense of others, defense of property;

3. Privilege of arrest;

4. Necessity; and

5. Discipline (by a parent).
When is the defense of self-defense available in torts?

How much force may a defendant use?
When defendant reasonably believes that he is being or is about to be attacked.

He may use enough force as is reasonably necessary to protect against injury.
Is the defense of self-defense available to an initial aggressor?
Not generally, but it may be allowed if the other party escalates the fight.
When is the defense of defense of others available in torts?
When the actor reasonably believes that the person being defended could have used force to defend himself.
When is the defense of defense of property available in torts?
Defendant may use reasonable force to prevent commission of a tort against his property. However, defendant must first make a request to desist or leave. Defendant can use force in hot pursuit of a tortfeasor.
Does defense of property allow the use of deadly force in torts?
Not unless the invasion of property also entails a threat of bodily harm.
When must one use peaceful means to recover property in torts?
When the tortfeasor came into possession lawfully, e.g., conditional sale.
What are the prima facie elements of the tort of defamation?
1. Defamatory language;

2. Of or concerning the plaintiff;

3. Publication by defendant to a third person (either with intent to publish or negligently); and

4. Damage to plaintiff's reputation.

Further, if the defamation involves a matter of public concern, there are two more, Constitutional elements:

5. Falsity of the defamatory language; and

6. Fault on the part of the defendant.
What kind of damages must a plaintiff show in a slander case?
Plaintiff must prove special (pecuniary) damages, unless the slander is slander per se.
What are the four categories of slander per se in torts?
Defamatory statements that

1. Adversely reflect on one's conduct in a business or profession;

2. One has a loathsome disease;

3. One is or was guilty of a crime involving moral turpitude; and

4. A woman is unchaste.
Are radio and television broadcasts of defamatory language slander or libel?
Most courts treat them as libel, even though they're spoken.
What kind of damages must a plaintiff show in a libel case?
There is no need to prove special damages; general damages are assumed.
Who may be liable for published defamation?
The author or speaker, and, to the same extent, the primary publisher (e.g., newspaper, TV station, etc.). A secondary publisher (one who sells papers or plays tapes) may be liable if it knows or should know of the defamatory content.
How must a plaintiff prove the Constitutional fault element in a defamation case on a matter of public concern?
It depends.

If plaintiff is a public official or figure, he must show that defendant acted with malice, defined as either (1) knowledge that the statement was false, or (2) reckless disregard as to its truth or falsity.

If plaintiff is a private person, he need only show negligence as to the truth or falsity of the statement, but can only recover "actual injury" damages. If a private person plaintiff can show malice, however, he is entitled to a presumption of damages, and may be allowed to recover punitive damages as well.
What are the four branches of the tort of invasion of right to privacy?
1. Appropriation of plaintiff's picture or name: Unauthorized use for commercial advantage.

2. Intrusion on plaintiff's affairs or seclusion: An act of prying or intruding that is objectionable to a reasonable person, into something that is private.

3. Publication of facts painting plaintiff in a false light: Attributing to plaintiff views he does not hold or actions he did not take. The false light must be objectionable to a reasonable person.

4. Public disclosure of private facts about plaintiff: The public disclosure must be objectionable to a reasonable person. Liability can attach even if the statement is true.
What kind of damages must an invasion of right to privacy plaintiff show?
Ordinary damages, like emotional distress and mental anguish, are sufficient. There is no need to show special damages.
What are the prima facie elements of the tort of intentional misrepresentation?
1. Misrepresentation of a material fact, by affirmative statements;

2. Scienter (i.e., defendant knew or believed his statements were false when he made them);

3. Intent to induce plaintiff to act or refrain from acting in reliance on the misrepresentation;

4. Causation (actual reliance);

5. That reliance was actually justifiable; and

6. Damages (must be actual pecuniary loss).
What are the prima facie elements of the tort of negligent misrepresentation?
1. Misrepresentation by defendant in a business or professional capacity;

2. Breach of duty toward particular plaintiff;

3. Causation;

4. Justifiable reliance; and

5. Damages.
What are the prima facie elements of the tort of interference with business relations?
1. Existence of a valid contractual relationship between plaintiff and a third party or valid business expectancy of plaintiff;

2. Defendant's knowledge of the relationship or expectancy;

3. Intentional interference by defendant causing a breach or termination of relationship/expectancy; and

4. Damages.
What are the prima facie elements of the tort of malicious prosecution?
1. Institution of criminal (or, in most states, civil) proceedings against plaintiff;

2. Termination in plaintiff's favor;

3. Absence of probable cause for the proceedings (either a reasonable person would not or defendant did not believe plaintiff was guilty);

4. Improper purpose (other than bringing someone to justice); and

5. Damages.
What are the prima facie elements of the tort of abuse of process?
1. Wrongful use of process for an ulterior purpose; and

2. Definite act or threat agaisnt plaintiff in order to accomplish an ulterior purpose.
What are the prima facie elements of the tort of negligence?
1. Duty to conform to a particular standard of conduct;

2. Breach;

3. Causation, both actual and proximate; and

4. Damage.
How do you know if a secondary plaintiff is foreseeable or not for purposes of negligence liability?
Most states hold that a secondary plaintiff can recover if he was in the foreseeable zone of danger, within which a reasonable person would have seen that there was a risk of injury to him under the circumstances.
What is the basic standard of care in a negligence action?
The objective, reasonable person standard. Mental deficiencies or inexperience are not taken into account, but the reasonable person IS held to have the same physical characteristics as defendant.
What is the standard of care for professionals in a negligence action?
A professional or someone with special occupational skills must possess the knowledge and skill of a member of the profession/occupation in good standing in a similar community.
What is the standard of care for medical professionals in a negligence action?
Medical professionals are held to a national standard: they must possess the knowledge and skill of a member of the medical professional nationwide. Further, doctors have a duty to disclose risks and obtain informed consent.
What is the standard of care for children in a negligence action?
Children are held to the standard of others of like age, experience, education, and intelligent. If they are engaged in an "adult" activity, however, they may be required to conform to an adult standard.
What is the standard of care for common carriers/innkeepers in a negligence action?
A very high standard of care, with liability for even slight negligence towards passengers/guests (NOT others).
What is the standard of care for auto drivers to guests in a negligence action?
Ordinary care.
What is the standard of care for bailors in a negligence action?
It depends.

If the bailment is gratuitous, the bailor must inform of known, dangerous defects in the chattel.

If the bailment is for hire, the bailor must inform of chattel defects of which he is or SHOULD BE aware.
What is the standard of care for bailees in a negligence action?
It depends on whom the bailment benefits.

Sole benefit to bailor: Low standard.

Sole benefit to bailee: High standard.

Mutual benefit: Ordinary standard.
What is the standard of care in emergency situations in a negligence action?
Defendant must act as a reasonable person would under the same emergency conditions. BUT the emergency will not be considered if it is of defendant's own making.
What is the standard of care owed by landowners to those off the premises in a negligence action?
There is no duty to protect one off the premises from natural conditions. There is, however, a duty for unreasonably dangerous, artificial conditions/structures abutting adjacent land. Further, landowners must not act so as to create an unreasonable risk of harm to others off the premises.
What is the standard of care owed by landowners to those on the premises in a negligence action?
It depends on the plaintiff's status.

Trespasser: No duty to an undiscovered trespasser. For discovered/anticipated trespassers, landowner must warn of known artificial conditions involving risk of death/serious bodily harm, and exercise reasonable care in conducting "active operations" on the property

Licensee (one who enters for his own benefit): Duty to warn of dangerous conditions, whether natural or artificial, and to exercise reasonable care in conducting "active operations" on the property.

Invitee: Same duty as to licensee, PLUS duty to make reasonable inspections to discover nonobvious dangerous conditions and make them safe.
Who is an invitee for purposes of premises liability?
One who enters

1. For a purpose connected with the business of the landowner; or

2. As a member of the public for a purpose for which the land is held open to the public.
What standard of care does a landowner owe to users of recreational land in a negligence action?
None, if he permits the public to use the land for recreational purposes without charging a fee. The ordinary standard of care for "active operations" applies, however.
What standard of care does a lessee owe in a negligence action?
Only to maintain the premises.
What standard of care does a lessor owe in a negligence action?
Duty to warn of existing defects of which he is aware or has reason to be aware, and which he knows the lessee is not likely to discover on reasonable inspection. If lessor has a covenant to repair, he is liable for unreasonably dangerous conditions. If he volunteers to repair, he is liable for negligent repair.
What standard of care does a vendor of realty owe in a negligence action?
A vendor must disclose concealed, unreasonably dangerous conditions that he is or should be aware of, and that he knows vendee is unlikely to discover on a reasonable inspection.
What is the attractive nuisance doctrine in torts?
A landowner has a duty of ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property. Plaintiff must show

1. A dangerous condition on the land that owner is or should be aware of;

2. That the owner knows or should know children frequent the vicinity;

3. That the condition is likely to cause injury because of child's inability to appreciate the risk; and

4. That the expense of remedying the situation is slight in comparison with the magnitude of the risk (e.g., put a fence around your pool).
What is the standard of care regarding negligent infliction of emotional distress?
Defendant must not (1) cause a threat of physical impact that leads to emotional distress, or (2) directly cause severe emotional distress that by itself is likely to result in physical symptoms.
When may a bystander outside the zone of danger recover for negligent infliction of emotional distress?
If plaintiff sees defendant cause physical harm to another and

1. Plaintiff and is closely related to the victim of physical harm;

2. Plaintiff was present at the scene;

3. Plaintiff observed or perceived the injury; and

4. Plaintiff suffered physical symptoms from the distress.
When is there an affirmative duty to act in torts?
1. Assumption of duty by acting;

2. Peril due to defendant's conduct;

3. Special relationship between parties (parent, common carrier, etc.);

4. Duty to control third persons.
What is the doctrine of negligence per se?
A theory of breach of duty in torts. Plaintiff can establish breach as a matter of law by showing violation of an applicable statute. Causation and harm must still be shown.
What is the doctrine of res ipsa loquitur?
Something that "speaks for itself." Plaintiff must show

1. That the accident causing the injury is of a type that would not occur without negligence; and

2. That the negligence is attributable to defendant.

If plaintiff wins on res ipsa loquitur, he has made a prima facie case, and defendant cannot win a directed verdict. The trier of fact can still reject the inference of negligence.
What is actual causation in torts?
"But for" causation.
What is the substantial factor test in torts?
A test for actual causation in casues where several causes bring about an injury. If defendant's conduct was a substantial factor in causing the injury, actual causation is satisfied.
What is the test for proximate causation in torts?
The foreseeability test: defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his conduct.
How far does a defendant's tort liability extend, for proximate causation purposes, if his actions directly caused an injury?
Defendant is liable for all foreseeable harmful results, even if unusual (such as medical malpractice, infection at the hospital, etc.).
What is the difference between independent intervening forces and superseding forces for purposes of proximate causation in torts?
Independent intervening forces may be foreseeable if defendant's actions increased the risk of harm from these forces, causing foreseeable results. They can include negligence, crimes, and intentional torts of third persons, and acts of God.

Superseding forces produce unforeseeable results and are themselves unforeseeable, and therefore break the chain of causation.
What is the eggshell skull rule in torts?
"You take your plaintiff as you find him." Defendant is liable for all harm, even if the extent of damages was unforeseeable, as in the case of a plaintiff with an eggshell skull.
What is the last clear chance doctrine in torts?
It is a defense to contributory negligence. The person with the last clear chance to avoid an accident is always liable. For example, if plaintiff is in helpless peril, the defendant will be liable if defendant knew or should have known of plaintiff's situation.
What is the doctrine of assumption of the risk in torts?
Plaintiff may be denied recovery if he

1. Knew of the risk; and

2. Proceeded voluntarily anyway.
When is assumption of the risk implied in torts?
If the risk is one that an average person would clearly appreciate.
What are the prima facie elements of strict liability in torts?
1. Absolute duty to make safe;

2. Breach;

3. Causation, both actual and proximate; and

4. Damage to person or property.
When is strict liability imposed in torts?
1. Trespassing animals or (as to NON trespassers only) wild animals; and

2. Abnormally dangerous activities: Activities that are (1) dangerous even when reasonable care is exercised, and (2) not a matter of common usage in the community.
What are the five theories of products liability in torts?
1. Intent;

2. Negligence;

3. Strict liability;

4. Express warranty or misrepresentation; and

5. Implied warranty of merchantability and fitness.
What are the two elements common to any theory of products liability in torts?
1. A defect in the product that

2. Existed when it left defendant's control.
What are three types of defects in products liability?
1. Manufacturing defects: The product is more dangerous than it would be if manufactured properly;

2. Design defects: All products in a line are the same but are dangerous; and

3. Inadequate warnings: Failure by manufacturer to give adequate warning as to dangers not apparent to users.
Who has standing to sue on a products liability theory?
Any foreseeable plaintiff, so users, consumers, and bystanders can all sue.
What is the "fireman's rule" in torts?
A fireman or police officer is barred from recovering in negligence for injuries caused by the risks of a rescue.
What is a private nuisance in torts?
Nuisance is not a cause of action, but a kind of harm. Private nuisance is a substantial, unreasonable inteference with a private individual's use or enjoyment of property over which he has a right of immediate possession.
What is a substantial interference for private nuisance purposes?
Interference that is offensive, inconvenient, or annoying to the average person in the community. It is not substantial if it is merely the result of plaintiff's hypersensitivity or specialized use of the property.
What is an unreasonable interference for private nuisance purposes?

When must a private nuisance plaintiff show unreasonable interference?
Interference that causes an injury whose severity outweighs the utility of defendant's conduct.

A showing of unreasonable interference is required for nuisances based on negligence or intent.
What is a public nuisance in torts?
Nuisance is not a cause of action, but a kind of harm. Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community, e.g., using a building for criminal purposes like running a shooting gallery.
When can a plaintiff recover for public nuisance in torts?
Recovery is only allowed if plaintiff suffered unique damage not suffered by the public at large.
What are the 2 types of interference with possessory right to chattel?
Intermeddling - direct damage to the chattel

Dispossession - depriving P of lawful right of possession of chattel
What are the 2 types of consent defenses
Express Consent - must not be procured by fraud or duress

Implied Consent - based on
1) Implied from Customary Practice
2) Implied from Ds reasonable interpretation of P's objective conduct
In NY what is the preliminary requirement for using self-defense
Must try to retreat first EXCEPT if in your home or if a cop
What is the defense of Public Necessity?
It is a defense to the torts of invasion of land, trespass to chattels and conversion where D needed access to the property in order to protect against harm to the public at large - requires weighing of harms. No responsible for damages
What is the defense of Private Necessity?
Necessity of access to property for D's own benefit. Responsible for any damages caused by access to property. D may remain until the dangerous condition has passed. No liability for punitive or nominal damages. Possessor can't eject D until danger gone or else battery
What are the defenses to defamation?
1) Consent
2) Truth
3) Absolute Privilege = arise based on identity of D - Spousal Privilege; Governmental Officers Engaged in Conduct of their Official Duties
4) Qualified Privilege = arises based on when and how the speech is made - when there is a social interest in candor OR when the statement is made to a recipient who has a strong interest in the information and it is reasonable for D to publish the info to them [privilege can be lost if D does not have reasonable belief what he is saying is true or statements are not relevant]
What are the elements to the tort of theft of trade secrets?
1) P must possess a valid secret and 2) P must take the secret by improper means
How do you prove causation where the cause is inascertainable?
Burden shifts to the 2 Ds to prove they were not the cause. If they can't they are both joint and severally liable
What are the 4 equitable remedies in a tort action?
1) Negative Injunction
2) Mandatory Injunction
3) Permanent Injunction
4) Preliminary Injunction
What must one show to get an injunction?
1) no adequate remedy at law [monetary damages will not suffice]
2) tort in question impinges on a property right or protectable interest
3) Injunction is enforceable
4) Balance of hardships tips in favor of P [Benefit to P must outweigh harm to D]
What must one additionally show to get a preliminary injunction?
1) Likelihood of success on the merits; and
2) Irreparable harm
What are the Defenses to Injunctive Relief?
1) Unclean hands, P cause the tort
2) Laches - P delayed in asking for relief
3) First Amendment
How may one sue for vicarious liability?
Employer will be liable if employee was acting within scope of employment

NO liability for intentional torts UNLESS force part of the job, job generates tension or friction, employee acted out of misguided effort to benefit employer

Independent Contractors
- no liability unless injure an invitee

Automobile owners lending car
- no vicarious liability unless driver becomes agent [benefit for owner]

Parents and Kids
- not liable for kids torts, no negligent supervision tort
What is contribution?
Remedy for D who P chose to recover the full damage award from. Can recover from other D's based on their percentage of fault.
What is indemnity?
out of pocket party can recover fully from another based on relationship
What is an action for loss of consortium?
Spouse of victim can bring separate action to recover for loss or services, companionship, sex
What is a wrongful death action?
Action of recovery for spouse or family member of victim to recover for pecuniary loss
What is survival of tort action?
Tort actions that survive death - can bring action for the pain and suffering of the victim he suffered before death