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72 Cards in this Set
- Front
- Back
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False Imprisonment
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An act or omission by D that confined or restrained P to a bounded area, intent by the D to do so, and causation
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Assault
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D's actions caused the P to be in reasonable apprehension of an immediate harmful or offensive contact and the D intended to cause this reaction
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Recapture of Chattels defense
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for shiopkeepers; Property owner (or agent) allowed to use reasonable force or the threat of force to recapture his chattels from a tortfeasor who has stolen them
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Shopkeeper's privilege
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May reasonably detain individuals whom they reasonably believe to be in possession of shoplifted goods
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Damages in Conversion action
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Fair market value of the chattel converted, as of the time and place of the conversion; Defendant gets title upon the satisfaction of the judgment - effect is a FORCED SALE
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Trespass to land
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An act of physical invasion of P's real property by D, intent on D's part to bring about the physical invasion, and causation
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IIED
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An act by D amounting to extreme and outrageous conduct, intent on the part of D to cause P to suffere severe emotional distress, or recklessness as to the effect of D's conduct, causation and damages (severe emotional distress)
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Trespasser
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one who comes onto the land without permission or privilege; Landowner owes no duty to an undiscovered trespasser; To discovered or anticipated trespassers, landowner owes the duty to WARN of artificial known conditions that involve a risk of death or serious bodily harm and which the trespasser is unlikely to discover
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Licensee
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One who enters on the land with the landowner's permission, express or implied, for his own purpose or business rather than the landowner's benefit
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Invitee
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One who enters onto the premises in response to an express or implied invitation of the landowner; Note that a person loses invitee status if he exceeds the scope of the invitation
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Res Ipsa Loquitor
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P must show that the accident causing his injury is the type that would not normally occur unless someone was negligent, that the negligence was attributable to D, and that the injury was not attributable to P
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Joint and Several Liability
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When two or more tortious acts combine to proximately cause an indivisible injury to the plaintiff, the P can recover the entire judgment from any D
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Contribution
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Any D required to pay more than her share of damages has a claim against the other jointly liable parties for the excess
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Comparative Contribution
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Nonpaying tortfeasors are required to contribute only in proportion to their relative fault.
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Products liability
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Existence of a legal duty owed by the D to that particular P, breach, actual and proximate cause and damages; A commercial supplier who assembles a product from components manufactured by others is subject to the same liability as the manufacturer of the defective component
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Defamation
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P must show that the D published a defamatory statement of or concerning the P that damaged his reputation; If public figure or public concern, P must show actual malice (knowledge that statemet is false or reckles disr as to its truth or falsity)
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Nuisance
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Substantial interference with P's use or enjoyment of his land (average person in the community std)
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Vicarious Liability
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Where one is vicariously liable for the torts of another, the former has a right of indemnity against the latter.
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Kind of force allowable to protect property
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Reasonable, not likely to cause death or serious injury (spring gun)
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Zone of foreseeability
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Palsgraf rule; Majority rule; A plaintiff can recover for the defendant's breach of duty only if she can establish that a reasonable person would have foreseen a risk of injury to her in the circumstances
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Conversion
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The intentional interference with the plaintiff's right of possession in the chattel that is serious enough to warrant that the defendant pay the full value of the chattel; It is conversion if the D was using the chattel w/out permission and it was accidentally damaged (damages=fmv at time and place of conversion)
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Intentional Misrepresentation (Deceit)
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Plaintiff must establish a misrepresentation made by the defendant, scienter, an intent to induce plaintiff's reliance on the misrepresentation, causation (actual reliance), justifiable reliance and damages
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Firefighter's rule
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Bars firefighters and police officers from recovering for injuries caused by the risks of a rescue
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Privilege of private necessity
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A person may interfere with the real or personal property of another when the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and the threatened injury is substantially more serious than the invasion that is undertaken to avert it
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Public Nuisance
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Exists when a property owner is using his property in such a manner that it creates an unreasonable risk to the public in general
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Continuing trespass doctrine
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If a defendant takes property with a wrongful state of mind, but without the intent to commit larceny, and later, while still in possession of the property, forms the intent to steal it, the trespass involved in the initial wrongful taking is regarded as continuing and the defendant is guilty of larceny
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TN - Duty of hospitals to patients
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In Tennessee, hospitals owe a duty of reasonable care to patients and MAY be directly liable independent of any liability of hospital employees or agents
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TN - Retaliatory discharge
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In Tennessee, There must be a clear and definitive public policy. Four examples: 1) Lady fired for filing a workers comp claim. Today, she has a tort action for retaliatory discharge. There is a clear and definitive public policy that people ought to be able to file worker’s comp claims without being fired. 2) Man fired because summoned for jury duty and missed work; 3) Man fired for reporting safety violations by employer; 4)Where fired for reporting violation of legal ethics
NB: Employees alleging retaliatory discharge for refusal to participate in illegal activities need not report the illegality. |
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TN - Governmental Tort Liability Act
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This is how you sue a city or county for the negligence of an employee; There is immunity for planning level decisions, but they are liable (immunity removed) for operational level decisions up to statutory caps; Examples: Planning level decision: To change a bus route; Operational level decision: Bus driver’s decision about where exactly to stop a bus
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TN- Remedies for private nuisance (tree hanging over neighbor's yard)
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Three different remedies are available: Self-help, neighbor can be enjoined to cut back encroaching branches, and damages
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TN - Locality rule in legal malpractice
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All plaintiff’s expert must know is the standard of care in the state of TN (This is a statewide locality rule)
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TN - is gas station liable for selling gas to obviously drunk driver
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Rule: It is negligent to sell and/or help pump gas to an obviously intoxicated driver
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TN - asbestos - Is an Er liable when he lets Ee go home with asbestos on his clothes?
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Yes. Employer who let worker wear asbestos-contaminated clothing home can be liable for the mesothelioma death of worker’s daughter
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TN's comparative fault rule
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49% rule. McIntyre v. Ballantine. P can recover if 49% or less at fault, compared with all tortfeasors
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Absolute defenses that don't work as absolute defenses in TN anymore
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Contributory negligence, Last clear chance, Implied assumption of the risk, The open and obvious rule
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TN - Does comparative fault apply to strict liability claims?
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YES!
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TN - MedMal - limiting psychiatrist's ability to shift fault
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Psychiatrist who failed to protect nurse from violent mental patient cannot charge fault against the non-party patient
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TN - MedMal - Prescribing doctor - shifting fault
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Osteopath who prescribed Antabuse for an unknowing alcoholic who committed suicide cannot charge fault against the deceased patient
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TN - MedMal - J & S liability between Nurse and Nursing home
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Where intentional tortfeasor (abusive nurse) and negligent tortfeasor (nursing home) are joined as defendants, liability is joint and several (you can go after either; but you are going to get your money from the deep pocket nursing home)
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TN - phantom tortfeasor
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Cannot assess fault against an unknown "phantom" tortfeasor
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TN - Some rules that lessen P's recovery
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Rule: Jury can assess fault against judicially-immune STATE doctors (you would normally file a claim with the claims commission against them) when you have OTHER d's in court. This means a P cannot collect as much (because he can't go after them for damages). Rule: Jury can assess fault against tortfeasors protected by a statute of repose. Rule: No fault can be assessed to a patient whose negligence provides only the occasion for medical treatment (if drunk driving put fellow in hospital, that provided the occasion for treatment)
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TN - social hosts at parties w/ alcohol and minors
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Adult social host has a duty of care to the guest even though he did not buy the alcohol. Therefore, the adult host can be comparatively liable with the drunk driver
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TN - Med Mal - What are two locality rules needed for an expert to prove med mal?
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1) Expert must come from either TN or a contiguous state (we have eight border states); 2) Expert must know the standard of care in the defendant doctor's community or in a community shown to be similar
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TN - Med Mal - Notice rules
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P must give notice to the D at least 60 days before filing suit that he plans to file it; SOL's and the statutes of repose can be extended for 120 days to comply with this pre-filing notice provision. In addition to the notice, there must be a certificate of good faith from a plaintiff's expert filed with the complaint
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TN - Med Mal - What must a P file with his complaint?
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A certificate of good faith from a P's expert
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TN - Med Mal - What are two situations when the three year statute of repose will not be tolled
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1) P's mental incompetency, 2) Minority of the Plaintiff
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TN - Med Mal - Can hospital be found vicariously liable for conduct of IC's?
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Even though an ER doctor and a radiologist are independent contractors, a hospital can be vicariously liable on a theory of APPARENT AGENCY
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TN - Products Liability - What must a P show
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Must prove that the product was "in a defective condition OR unreasonably dangerous when it left the control of the manufacturer or seller." There are two bases for proving that a product is unreasonably dangerous. Consumer Expectation test: "dangerous [when manufactured or sold] to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Prudent Manufacturer test: the plaintiff may prove that the product was unreasonably dangerous by showing that "because of its dangerous condition [it] would not be put on the market by a reasonably prudent manufacturer or seller assuming that he knew of its dangerous condition."
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Consumer Expectation Test
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An unreasonably dangerous product is one that is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community of its characteristics.
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Prudent Manufacturer Test
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the plaintiff may prove that the product was unreasonably dangerous by showing that "because of its dangerous condition [it] would not be put on the market by a reasonably prudent manufacturer or seller assuming that he knew of its dangerous condition."
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Common law rule about bartender liability for injuries sustained by customers or their victims (from drunkenness)
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No liability. That's why many states adopted DRAMSHOP acts
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Dramshop act
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Create a cause of action in favor of any third person injured by the intoxicated customer of a bar
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When is contact "offensive" for a battery
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if the P has not expressly or impliedly consented to it. Consent may be implied from custom, conduct, or words or by law. NB: A person is presumed to consent to the ordinary contacts of daily life, which would include contact resulting from assistance to a fellow passenger in a crowded bus
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Defamation - elements
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Defamatory language on the part of the defendant; defamatory language must be "of or concerning" the plaintiff (must identify the plaintiff to a reasonable reader, listener or viewer); publication of the defamatory language by the defendant to a third person; damage to the reputation of the plaintiff; NB: Communication to the third person must be made either intentionally or negligently
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Duty owed to invitee
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To WARN of nonobvious dangerous condictions AND to make reasonable inspections to discover dangerous conditions and make them safe. NOTE: This duty is limited when the invitee goes BEYOND THE SCOPE OF THE INVITATION (like where an owner ropes off a certain area of a lake for swimming)
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Trespass to chattels
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An act of defendant that interferes with plaintiff's right of possession in the chattel; intent to perform the act bringing about the interference with plaintiff's right of possession; causation, and; damages; NB: The act of interference may be either dispossession of or damage to the chattel.
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Interference with business relations
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Existence of a valid contractual relationship between plaintiff and a third party OR a valid business expectancy of plaintiff; Defendant's knowledge of the relationship or expectancy; intentional interference by defendant that induces a breach or termination of the relationship or expectancy; and damage to plaintiff; NOTE: an interferer's conduct may be privileged where it is a proper attempt to obtain business for the interferer, particularly if the interference is only with a prospective business relationship rather than with an existing contract.
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Attractive nuisance doctrine
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Landowner has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on his property. To assess this special duty on the landowner, the following elements must be shown: 1) there is a dangerous condition on the land of which the owner is or should be aware, 2) the owner knows or should know that children frequent the vicinity of this dangerous condition, 3) the condition is dangerous because the child is unable to appreciate the risk, and 4) the expense of remedying the situation is slight compared with the magnitude of the risk
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NIED for bystanders
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P and the person injured must be closely related, P must have been present at the scene of the injury and p personally observed or perceived the event. NOTE HOWEVER, the bystander plaintiff can recover damages ONLY if the D's conduct resulted in some physical injury from the distress; emotional distress alone is insufficient in the usual case
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Multiple causation factors (two fires meeting in the middle)
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Where several causes combine to bring about an injury - and any one alone would have been sufficient to cause th einjury - the actual cause requirement is satisfied if D's conduct was a substantial factor in causing the injury.
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Qualified privilege to defamation action
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When the recipient has an INTEREST in the information and it is REASONABLE for the defendant to make the publication of the statement
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Express assumption of the risk
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This is where a P knowingly decides to take a chance (is not forced to; has a choice). It is a COMPLETE DEFENSE even in comparative negligence jurisdictions
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Duties of commercial dealers in strict liability (as opposed to manufacturers)
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You can hold them strictly liable; The commercial supplier owes a duty not to sell a product that is so defective as to be unreasonably dangerous. NB: This commercial supplier can be liable EVEN IF it had no reason to anticipate that the product was dangerous or had no opportunity to inspect the product for defects.
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Governmental Tort Liability Act - TN
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A municipality can be held liable in negligence for limited damages; Judgments limited to insurance coverage, which municipalities MUST HAVE in the amount of $300,000 per person and $700,000 per occurrence
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How is the "substantial interference" standard in private nuisance actions measured
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By the annoyance to an AVERAGE PERSON in the community. Not P's personal sensitivities. If it wouldn't annoy anyone else - or no one else ever complains - this may indicate that the nuisance isn't a nuisance
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Who has standing to bring a trespass to land claim
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The person with actual OR constructive possession EVEN IF THEY ARE WITHOUT LEGAL TITLE OR RIGHT! (this would include a holdover tenant facing eviction proceedings, for example)
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What is the Common Law rule regarding liability to car owners of torts of their drivers/borrowers
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They are NOT LIABLE. Note: There are two statutory exceptions - 1) permissive use and 2) family car
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What is the key to informed consent cases?
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Would a REASONABLE PERSON have consented to treatment if he knew the risks
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What is a defense to strict liability design defects
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There was no reasonable alternative design - or no reasonable economic alternative... In other words, there was no way we could have done it differently, if used properly there is no risk
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Good samaritan statute
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Protects rescuer from liability for his own negligent rescue
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How are defective food products treated?
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As manufacturing defects
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Can you bring a trespass to land action when you had the right to be there, but it has since expired?
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Yes! Trespass to land may exist when the right to be there has elapsed
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