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145 Cards in this Set
- Front
- Back
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whats an act for intentional torts purposes
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a volitional movement
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Specific intent for intentional torts purposes
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the goal in acting is to bring about specific consequences
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General intent for intentional torts purposes
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actor knows with substantial certainty that these consequences will result
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D's intent for an intentiona ltort need only be what?
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A substantial factor
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what makes up a prima facie case for an intentional tort
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Act by D, Intent(specific or general), causation
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when is hypersensativity considered?
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never
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what are the incapacity defenses for an intentional tort
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there are none, anyone can form the capacity for an intentional tort.
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Battery
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harmful or offensive contact to P’s person (harm need not be shown)
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What is P's person for battery purposes
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(i) Includes everything connected to P (e.g. clothing, carrying a briefcase, kick your dog on a leash)
(ii) Need not involve D’s touching (direct or indirect touching) (iii) Does not have to result in instantaneous harm (poison lunch at 9pm, you eat it at noon) |
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Assault
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reasonable apprehension of an immediate battery (i.e., harmful or offensive contact to P’s person),
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(ii) Unloaded gun or D lacks ability to bring attack to function for assault purposes.
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D threatens but cannot consummate the act - depends on P’s knowledge – put yourself in P’s shoes to decide it is an assault. If P knows he can’t be touched, it is not an assault. If P doesn’t know, it is an assault.
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immediate battery in the definition of assault means what?
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(i) Mere words lack the immediacy – mere words are insufficient without overt physical conduct.
Words can negate threat however - if theyre conditional or future. |
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False imprisonment
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an act or omission on the part of D that confines or restrains P to a bounded area
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confinement or restraint
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– (i) physical barriers, (ii) physical force, (iii) threats of force, (iv) failure to release, (v) invalid use of legal authority
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to be falsly imprisoned a P must be what
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Aware he is confined
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Result is confinement in bound area
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must be locked in a bounded area.
NO reasonable means of escape reasonably known by P |
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confinement of shoplifter
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owner is not liable if there is reasonable (i) suspicion, (ii) means of detention, and (iii) amount of time
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4. Intentional infliction of emotional distress
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==> D engages in extreme & outrageous conduct, & P suffers severe distress as a consequence (only intentional tort requiring damages)
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Extreme & outrageous
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– exceeds all bounds of decency tolerated in a civilized society; mere insults are NOT enough; need plus factors (hallmarks of outrageousness)
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Which D's have a hightened sense of extreme and outrageous conduct?
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Common carriers and inn keepers
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(i) Conduct is Continuous & repetitive
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Extreme and outrageous conduct
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fragile class of person thus easier to be victim of extreme and outrageous conduct
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young children, elderly, pregnant women
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IF you know somones weak spot before and exploit it.
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this is extreme and outrageous conduct.
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Trespass to Land
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physical invasion of P’s real property
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TRESSPASS TO LAND = Does D have to know he is entering somone elses property for intent
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No. in fact you can end up there against your will.
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D propels physical objects onto the land
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Tresspass to land
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Tresspass to chattels/conversion can happen 2 ways
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actual damage or depriving owner of property
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Trespass to chattels
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(a) Harm to P’s interests is slight & merely interferes with P’s right of possession (keying a car)
(b) Remedy – actual damages (cost of repair or rental) |
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Conversion – You break it, you bought it`
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(a) Harm to P’s interests is great that it requires D to pay the chattel’s full value (smash car w sledgehammer)
(b) Remedy – treated like a forced sale of the chattel - Full fair market value at the time of conversion; or - Possession (replevin) |
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(i) Conduct is Continuous & repetitive
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Extreme and outrageous conduct
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fragile class of person thus easier to be victim of extreme and outrageous conduct
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young children, elderly, pregnant women
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IF you know somones weak spot before and exploit it.
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this is extreme and outrageous conduct.
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IN NEW YORK Deliberate mishandling o a corpse is EED causing
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SO ya
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Trespass to Land
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physical invasion of P’s real property
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TRESSPASS TO LAND = Does D have to know he is entering somone elses property for intent
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No. in fact you can end up there against your will.
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D propels physical objects onto the land
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Tresspass to land
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Tresspass to chattels/conversion can happen 2 ways
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actual damage or depriving owner of property
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Trespass to chattels
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(a) Harm to P’s interests is slight & merely interferes with P’s right of possession (keying a car)
(b) Remedy – actual damages (cost of repair or rental) |
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Conversion – You break it, you bought it`
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(a) Harm to P’s interests is great that it requires D to pay the chattel’s full value (smash car w sledgehammer)
(b) Remedy – treated like a forced sale of the chattel - Full fair market value at the time of conversion; or - Possession (replevin) |
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IN NY, Good Faith Purchaser of stolen merchandise is not considered a converter.
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So Ya
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COnsent defense
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if lack of capacity, you CANNOT consent (i.e. drunk, insane) (remember lack of capacity can still be found liable of an intentional tort)
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Express (actual) consent
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– words in quotation marks giving the D permission to behave in a certain way
− EXCEPTION – express consent is void if given under circumstances of fraud or duress (you have sex but don’t tell partner you have an STD) |
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Implied consent – can arise from
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(i) Custom & usage – if P participates in an activity where certain invasions are necessary, he’s deemed to consent to those invasions (e.g., whether the behavior is typical or customary)
d. D’s reasonable interpretation of P’s objective circumstances or conduct (you never consider the subjective thoughts of the P) scope of consent, he’s liable |
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2. Protective privilege – includes (i) self-defense, (ii) defense of others, & (iii) defense of property.
3 requirements |
(i) D has to show proper timing – tort (threat
(ii) Scope – if D exceeds the you are responding to) must be either in progress or imminent (no revenge - It is improper if the threat is over and done with) (iii) D must have a reasonable belief that a tort (threat) is genuine − Negative implication – an honest reasonable mistake doesn’t deprive him of the defense |
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rule of symmetry & proportionality under the circumstances
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Protective privledges: if D uses excessive force, he’s liable for battery
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When can deadly force be used for?
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– if necessary to protect human (yourself or 3rd person) but NEVER to protect property
(ii) BUT, you can threaten/pretend to use deadly force to protect property – the assault is privileged |
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IN NY, Duty to retreat
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Duty to retreat before resorting to deadly force; BUT DOES NOT apply (i) you’re in your own home,
(ii) you’re a cop, or (iii) cannot do so safely |
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Necessity defense
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- only a defense to the property torts (trespass to land, trespass to chattel, or conversion)
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Public necessity
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D invades P’s property in an emergency to protect a significant group of people or the community as a whole; D must be acting as an altruist
(i) Absolute defense, & D is immunized from all damage liability |
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IN NY, Good Faith Purchaser of stolen merchandise is not considered a converter.
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So Ya
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COnsent defense
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if lack of capacity, you CANNOT consent (i.e. drunk, insane) (remember lack of capacity can still be found liable of an intentional tort)
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Express (actual) consent
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– words in quotation marks giving the D permission to behave in a certain way
− EXCEPTION – express consent is void if given under circumstances of fraud or duress (you have sex but don’t tell partner you have an STD) |
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Implied consent – can arise from
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(i) Custom & usage – if P participates in an activity where certain invasions are necessary, he’s deemed to consent to those invasions (e.g., whether the behavior is typical or customary)
d. D’s reasonable interpretation of P’s objective circumstances or conduct (you never consider the subjective thoughts of the P) scope of consent, he’s liable |
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2. Protective privilege – includes (i) self-defense, (ii) defense of others, & (iii) defense of property.
3 requirements |
(i) D has to show proper timing – tort (threat
(ii) Scope – if D exceeds the you are responding to) must be either in progress or imminent (no revenge - It is improper if the threat is over and done with) (iii) D must have a reasonable belief that a tort (threat) is genuine − Negative implication – an honest reasonable mistake doesn’t deprive him of the defense |
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rule of symmetry & proportionality under the circumstances
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Protective privledges: if D uses excessive force, he’s liable for battery
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When can deadly force be used for?
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– if necessary to protect human (yourself or 3rd person) but NEVER to protect property
(ii) BUT, you can threaten/pretend to use deadly force to protect property – the assault is privileged |
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IN NY, Duty to retreat
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Duty to retreat before resorting to deadly force; BUT DOES NOT apply (i) you’re in your own home,
(ii) you’re a cop, or (iii) cannot do so safely |
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Necessity defense
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- only a defense to the property torts (trespass to land, trespass to chattel, or conversion)
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Public necessity
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D invades P’s property in an emergency to protect a significant group of people or the community as a whole; D must be acting as an altruist
(i) Absolute defense, & D is immunized from all damage liability |
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Private necessity
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D invades P’s property in an emergency to protect an interest of his own (his own safety or property); D is acting selfishly
(i) NOT absolute defense (ii) 3 legal consequences: (a) D remains liable to harm inflicted on property & must pay for harm inflicted (b) D is NEVER liable for nominal or punitive damages (c) As long as the emergency continues, D entitled to remain on P’s landing a position of safety - Can’t be expelled or ejected (“right of sanctuary”) If D leaves because of P and gets injured, then P must pay |
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Defamatory statement
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(a) Defamatory statement – written or spoken statement that tends to adversely affect P’s reputation (reputation is an intangible asset that can be harmed
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Who can be defamed
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Living people, you cant defame the dead.
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Is name calling defamation
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No. must hurt his reputation. Seem to be a statement of fact.
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IN NY, opinion can be defamatory
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Depending on its tone, purpoe and content.
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Defamation componenents
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1. defamatory statement
2. publication 3. damages a. slander b. libel |
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Publication for defamation
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(a) D discloses the defamatory statement to one or more persons other than P himself
(b) Can be made either negligently or intentionally. |
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Defamation damages?
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(a) Libel – written or printed publication of defamatory language
- NO need to prove damages; presumption of damages (b) Slander – spoken or oral defamation - Slander per se (no need to prove damages) |
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Slander per se catagories
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1. Statement relating to P’s business or profession (one nurse telling another nurse that the doctor left a sponge in a patient)
2. Statement that P has committed a crime of moral turpitude (My neighbor is sexually abusing his daughter) 3. Woman is unchaste – only applies to women 4. Statement that P suffers from a ‘loathsome’ disease – (i) leprosy & (ii) venereal disease |
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IN NY, Slander Per Se additional catagory
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Homosexualitu
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What are the affirmative defenses fo Slander
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→ Statement that P suffers from a ‘loathsome’ disease – (i) leprosy & (ii) venereal disease
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2 Priviledges as defense to defamation
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(a) Absolute privilege – turns on the identity of the speaker
- Communication between spouses - Members of the 3 branches of government in their scope of official conduct – covers lawyers & witnesses (b) Qualified privilege – based on occasion of the speech. We want people to be candid. - (i) socially valuable or useful; (ii) relevant; (iii) statement must be made in good faith (reasonable mistake of fact) (i.e. Letter of Recommendation, Credit & Job Reference, Statements to Police) |
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First Amendment Defamation (FAD)
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b. Elements
(i) Defamatory statement (same as for common law) (ii) Publication (same as for common law) (iii) Damages (same as for common law) (iv) P must prove Falsity – the statement is factually inaccurate - the burden is shifted from D to P (v) P must prove Fault on D’s part – relates to D’s awareness of the falsity |
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Public Figures in a FAD suit
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figures (intentional or recklessness) – if P can show that D had actual malice (i.e., knew the falsity or had reckless disregard as to truth or falsity – made no effort to investigate truth)
- Damages are presumed – punitive damages allowed |
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Private figures in FAD suit
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Damages for only actual injury
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Appropriation ** ONLY NY PRIVAC TORT
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unauthorized use of P’s name or picture for D’s commercial advantage
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Intrusion
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invasion of P’s secluded space(solitude) in a way that would be objectionable to the average person
a. No claim unless truly in a private space & expectation of privacy d. E.g. – wiretapping, surveillance, & any other form of low-tech or high-tech spying (peeping) |
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False light
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(multistate only) ==> widespread dissemination of a major misrepresentation about P that is objectionable to the average person (spreading lies)
(i) Broader damages – not limited to economic damages; can recover for psychological damage (ii) Dissemination – must tell lots of people; not simply someone other than P (iii) Possible for a statement to be non-defamatory yet still be objectionable b. E.g. – mischaracterization of P’s beliefs (telling everyone a religious Jewish person is Catholic) c. NO intent requirement – even a reasonable mistake is not a defense |
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Disclosure
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widespread dissemination of confidential information about P that is objectionable to the average reasonable person
a. Comparison with false light – spreading confidential information that are TRUE b. Academic, Financial, Medical information c. E.g. – D tells everyone about P’s medical records d. Newsworthiness exception – if there is a public reason/interest/justification of knowing the secret; interpreted very broadly |
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Privacy tort defenses
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a. Consent – defense to all 4 privacy torts
b. Absolute & qualified defamation privilege – these are defenses to false light & disclosure, but NOT to appropriation or intrusion |
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intentional misrepresenation
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someone lied to you with the goal of ripping you off, you fell for it and got screwed – 5 elements (NO affirmative defenses):
a. Must be an affirmative misrepresentation of fact – D must misstate a fact in connection with a commercial transaction (silence can NEVER be fraud) b. Intent or recklessness with respect to the misstatement (scienter, i.e. intent) – knowing falsity or reckless manner c. D must intend to induce reliance – not only do you need to know that statement is false, BUT you have to have the intention of luring someone into a deal d. Reliance - P must rely on the information – even expert opinion applicable (i.e. used car salesman says that in his opinion the engine is fine) e. Economic harm – must be actual, pecuniary loss |
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Negligent misrepresentation
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this action is confined to misrepresentations made in a commercial setting, & liability will attach only if reliance by the particular P could be contemplated
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IN NY – Prima Facie Tort (Intentional infliction of pecuniary harm without justification)
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a. Intent to do harm (economic injury)
b. P suffers a commercial harm/disadvantage − If traditional tort has been established or been brought, then not actionable − Similar unfair competition – look for fact pattern where P & D are competitors (i.e. deliberately selling products below cost to drive a competitior out of business |
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Inducing a breach of Contract
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a. 4 Elements
(i) Valid contract between P & 3rd Party (ii) D knows existence of the contract (iii) D approaches and persuades 3rd Party to abandon contract |
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NY – Theft of Trade Secrets
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a. P must posses a valid trade secret
(i) Information that provides a business advantage (ii) Not generally known (iii) Owner takes reasonable efforts to preserve secrecy b. D takes the secret by improper means |
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2 Questions when evaluating a duty
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a. Was the P foreseeable or unforeseeable?
b. If so, what is the applicable standard of care? |
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People you owe a duty to despite unforseeability
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(i) Rescuers – are always owed a duty of care. Have to have a foreseeable type of harm. Danger invites Rescue
(ii) Fetuses (unborn children) – several possible fact patterns: (a) Negligent impact on pregnant mother’s body – leads to injury to the newborn baby thereafter - If baby born alive – infant can then sue D - If baby is born dead – infant has NO cause of action however, it has no cause of action but the mother does (b) Misdiagnoses likelihood of birth defects – parents can recover for economic loss (medical expenses, special costs for caring for the child), but NOT for emotional harm (c) Botched sterilization (wrongful pregnancy) |
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Duty of care
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standard of care)
a. Basic Standard – owe a duty of care of the hypothetical reasonably prudent person (RPP) acting under similar circumstance (compare D with reasonably prudent person) (i) Objective standard (harsh) – inflexible – the same for every person in society - make NO allowances for D’s mental illnesses or deficiencies; |
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Which attributes and are not taken into account with a standard of care?
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Physical = blind. are considered
Mental = mental ilness, defficiency are not considered |
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People who Change standard of care.
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1.Child
2. Professional 3. Land occupier |
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Standard of care for Children
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: customized standard (subjective)
(a) Under the age of 4 – legally incapable of negligence (b) Older children (Age 4-18) – owe the duty of care of children of similar age, experience, intelligence acting under similar circumstances (very flexible subjective standard). Hard to win negligence claim against a child. − EXCEPTION: when a child is engaged in an adult activity – ignore the child standard & apply the ‘reasonably prudent person test’ (e.g. operating something with an engine or motor) |
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Professionals standard of care
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people who have special skill and training and provide services to the public (they often have licenses) empirical (factually based) standard (standards of conformity based on custom)
(a) Standard of care – average member of the profession in good standing in a similar community (b) In a sense, the standard is to do what is customary − EXCEPTIONS: - Specialists – held to a national standard of all those who practice that specialty - Specialist have a duty to disclose risks of treatment |
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defenses to failure to disclose risk of treatement
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1. Commonly known risk
2. Patient declines the information 3. Patient is mentally incompetent 4. Evidence that disclosure of risks will actually be harmful to him |
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Duty of care of Land occupiers
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depends on how entrant got hurt & status of P
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How did entrant get hurt?
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(a) Activities conducted on land by owner or his agents, etc.; &
(b) Encountering a dangerous condition on the property (e.g., going for hike in the woods & getting hurt by hanging tree limb, slipping on loose carpet, etc.) |
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4 Legal status of P on land
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(a) Undiscovered trespasser: (b) Discovered/anticipated trespasser: (c) Licensees: social guests, or people who come onto the land for their own purpose or business (d) Invitees: property has been thrown open to the public at large (e.g., hospital, school, etc
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Duty to Undiscovered Tresspassers
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: people on land without occupier’s knowledge are NEVER owed a duty of care, regardless of how they were injured
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Duty to Discovered/anticipated tresspasser
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: includes not only trespassers that occupier knew about, but also those that he could anticipate (people who take frequent shortcuts across the land)
- Activities – duty of reasonable care - Conditions – D owes a duty of reasonable prudence 4 part test: “known, manmade deathtraps on the land”: |
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duty to licensee
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social guests, or people who come onto the land for their own purpose or business
- Activities – duty of reasonable care - Conditions – owner owes duty where the condition is “all known traps”: → concealed from licensee → occupier knows about condition in advance |
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duty to invites
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property has been thrown open to the public at large (e.g., hospital, school, etc.)
- Activities – duty of reasonable care - Conditions – the duty is a 2 part test “all reasonably knowable traps on the land”: → concealed from invitee → occupier knows about condition in advance, OR COULD discover through a reasonable inspection |
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Firefighter and police rule
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no recovery for injuries that are an inherent risk of their job
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duty to child tresspasser
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: reasonable prudence under all circumstances (attractive nuisance test); child must be hurt
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WHenever a duty for condition = satisfy it by.
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(i) repair the condition; OR (ii) give a warning
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IN NY standard for land occupiers
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– Generic standard of reasonable prudence for all land occupiers
− Legal status of P no longer determines the duty owed − BUT, status remains relevant in connection with foreseeability & nature of precautions required to meet standard of reasonable care under the circumstances |
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Negligence per se
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a. Usually a regulatory or criminal statute can be used as negligence per se (we borrow the standard from the statute rather than using the vague reasonably prudent standard)
b. Two-part Test (“class of person, class of risk”) (i) P must be a member of the class of persons that this statute seeks to protect(ii) P must show that the accident is within the class of harms/risks that the statute seeks to prevent c. EXCEPTIONS – don’t want to borrow statute (use reasonable prudent person test) (i) Compliance is more dangerous than violation – e.g. sometimes a car needs to cross a double-yellow line b/c otherwise he’s hit a pedestrian (ii) Compliance is impossible under the circumstances – D was having a heart attack while he drove through the red light (statutory compliance was impossible) |
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Affirmative duty
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a. NO duty to act affirmatively – e.g. not duty to rescue, no matter how evil D is acting
− NOTE: standard is the reasonably prudent person – never have to put your life at risk to help others b. EXCEPTIONS: (i) D put P in peril, or (ii) Pre-existing relationship between the parties: (i) family (relative), (ii) common carrier/innkeeper & their customers, (iii) land occupier & business invitees If you are required to rescue, you are simply required to do what is reasonable |
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if you volunteer to rescue you must do so to what standard
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reasonably prudent way or will be liable if he screws up
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Negligent infliction of emotional distress
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a. Duty to avoid causing emotional distress (fear or fright) – breached when D creates a foreseeable risk of physical injury to P through physical impact or threat of impact (no direct physical injury)
b. D was negligent AND (i) Subsequent physical manifestations of the distress – emotional distress then physical symptom (e.g. heart attack, miscarriage); OR (ii) Near miss requirement (zone of danger) – although you didn’t sustain any trauma, it was a “near miss.” The distress caused by threat of physical impact (e.g., passengers on airplane with drunk pilot) |
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By stander claim for Negligent infliction of emotional distress
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– P suing for emotion of grief (e.g. negligently inflicted injury on a close family member, & P is right there, on the scene, to observe it)
(i) Intentional infliction – P bystander must be present when negligent injury occurs & P a close relative of the injured person, & D must know these facts (ii) Negligent infliction – P bystander must be within “zone of danger” created by D’s negligent conduct |
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IN NYm Negligent inflcition
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1. Blood relative; and
2. In “zone of danger” (almost gets creamed himself) |
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DOctor mismanages stillbirth
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Mom may sue for emotional distress
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Distinguish betwenn intentional & negligent infliction of emotional distress
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(i) Intentional infliction of emotional distress – requires that D was deliberate & outrageous
(ii) Negligent infliction of emotional distress – requires that D was careless |
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Res Ipsa Loquitor
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==> a doctrine used by P’s who cannot tell us precisely what D did that was wrong, allow P to continue the case by showing 2 part test
a. Accident occurred is of a type which does not normally occur in the absence of negligence – all about probability, reasoning backward from an outcome. b. Accident ordinarily happens by a person in D’s position (D had exclusive control) – P has to show that D is the party most likely responsible for the mysterious screw-up that led to the accident |
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Factual causation
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linkage cause/effect & breach/damage
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But for test
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– builds on the breach by showing that but for the breach, P wouldn’t be injured (D will try to negate factual causation arguing “but for doesn’t apply, because even if D had been careful, P still would’ve sustained its injuries”)
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Merged causation (substantial factor test)
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Mingled Cause Cases - substantial factor test asks whether each D contributed to the disaster in a substantial way; if so, we hold them jointly liable
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(ii) Unascertainable causation
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causation (alternative causation test)
(a) Simultaneous event (only one of which is liable) – true cause is unascertainable (b) Shift burden of proof to D to exonerate themselves by preponderance of evidence – if each D can’t, they are jointly liable |
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2. Legal causation (“proximate cause” – it is just a label)
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this is the ‘FAIRNESS’ element (whether liability is proportional)
a. Foreseeability test – only for foreseeable consequences of their carelessness − Analysis: consider whether the consequences are what your worried about) b. Direct Cause Case: an uninterrupted chain of events from the negligent act to P’s injury – D is liable for foreseeable harmful results, regardless of unusual manner or timing c. Indirect Cause Case: an affirmative intervening force (e.g., an act by a 3rd person or an act of god) comes into motion after D’s negligent act, & combines to cause P’s injury (i) “Intervening causation”- if intervening force is foreseeable, D will be held liable |
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4 intervening cause fact patterns
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(a) Intervening medical negligence
- Doctor remains liable for medical malpractice (there will be joint liability here) (b) Intervening negligent rescue - Rescuer remains liable, unless Good Samaritan law applies (doctor, nurse or veterinarian) (c) Intervening protection or reaction forces: - E.g. crowd try to avoid negligently driven car, stomping on victim who was run over (d) Subsequent accident or disease: - E.g. D runs a red light, after hospital, victim in crutches & falls & breaks his arm (D liable) |
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Comparative fault
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balance P’s fault with D’s fault
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Vicarious Liability – flows from relationships. examples
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employer employee
Hiring party/independent contractor Car owner /driver of a car |
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NY Distinction – Permissive Use Doctrine
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Owner vicariously liable even if the driver is not owner’s agent.
Anyone driving your cat is presumed to be an authorized driver. |
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PArent child vicarious liability
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NO
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Tavern owner/ patron vicarious liability?
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can be vicariously liable for unlawfully serving minor or a drunk (really a ½ relationship)
NOTE: before using vicarious liability, first ask whether negligence applies |
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Joint Tortfeasors
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a. Comparative contribution – jury assigns D relative fault in percentages; out-of-pocket D can recover in proportion to those percentages
b. Indemnification – allows shifting the entire loss (i) Vicarious liability – out-of-pocket D allowed indemnification from active tortfeasor (ii) Strict products-liability – non-manufacturing D’s can get indemnification from manufacturer |
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Wrongful deah
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1. NOT A TORT. Procedural device (not a tort) allows surviving family members to bring a tort action against D – limited to recover only pecuniary damages (i.e., income P would have made if not been killed), NOT pain & suffering
2. Litigation is entirely derivative; in NY |
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Loss of consortium
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if victim of (any) tort is a married person, the uninjured spouse gets a separate cause of action in his/her name to recover for 3 elements of damage:
1. Loss of services (cooking, cleaning, etc.) 2. Loss of society (lost his best friend, etc.) 3. Loss of sex |
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good samaritan statues
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exempting doctors/nurses from liability for ordinary negligence when assuming care of injured P.
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duty to users of recreational land(premesis liability)
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Landowner who permits genereal public to use his land for recreational purposs w/o charging is not liable for injuries suffered by recreational users
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misrepresentation
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1. a misrepresentation of material fact
2.D knew or believeed it was false when made 3.intent to induce P's act in reliance 4.actual reliance |
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interfereance with business relations
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1. valid K
2. D knows of K 3.intentionally interferes 4.damages |
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contributory negligence
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completely barres P's recovery
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Last clear chance doctrine
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P may recoever despite being contributorily liable. the person with the last chance to avoid an accident and fails to do so is liable
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assumoption of the risk
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completely bars recover
D must 1. know of the risk 2.voluntarily proceed in the fae of risk |
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assumption of the risk in intentional torts
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nope, never
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pure comparative negligence
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allows for recovery no matter how negligent plaintiff is
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modified comparative negligence
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plaintiff may only recover if LESS THAN 50% percent negligent
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product liability
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1.defect
2.existance of defect when productl eft D's control |
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who can sue a D in a strict products liability COA
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privity aint required.
1.users 2.consumers 3.bystanders |
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PRIVATE nuisance tort
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a substantial, unreasonable, interferance w/ another private individual's use and enjoyment of property he poseeses
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injunctive relief for nuisance
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court will balance the hardship of the 2 parties
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respondeat superior
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an employer is liable for tortious acts of employe if commited in the scope of employement
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frolic v. detor
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a minor departure from employer's business for personal purposes is still "within the scope of employment"
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D's acting in concert
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where 2 or more D's are acting in concert to injure a P they are jointly and severably liable
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contribution
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when a D has paid more then his share he can get other liable d's to repay him.
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indemnity
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shifting the entrie loss between tortfeasors.
eg. viacarious liabilty, Strict products liability. |
