Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
97 Cards in this Set
- Front
- Back
|
Battery Elements
|
Harmful or offensive contact, to P's person, intent and causation.
*contact judged by reasonable person std |
|
|
Assault Elements
|
An act by D creating a reasonable apprehension in P of immediate harmful or offensive contact to P's person; intent and causation; requires immediacy
|
|
|
False Imprisonment Elements
|
An act or omission on the part of D that confines or restrains P to a bounded area; intent and causation; *time of confinement = irrelev
|
|
|
False Imprisonment; Bounded area?
|
freedom of movement must be limited in all directions; there must be no reasonable means to escape known P
|
|
|
IIED Elements
|
Any act by D amounting to extreme and outrageous conduct; intent or recklessness; causation and damages - severe emotional distress
|
|
|
How conduct that is normally not outragous may become so:
|
1) continous in nature
2) directed toward a certain type of P (children, elderly) 3) committed by a certaind type of D (common carriers/innkeepers) |
|
|
IIED & how a bystander may recover
|
Either show the elements of IIED OR that:
(i) she was present when the injury occurred, (ii) shw is a close relative of the injured person, and (iii) D knew the facts of (i) and (ii) |
|
|
Trespass to Land Elements
|
Physical invasion (person or object) of P's real ppty; intent (just to enter that ppty); and causation.
|
|
|
Trespass to Chattels Elements
|
An act by D that interferes (damaging or dispossession) with P's right of possession in a chattel; intent; causation; and damages
|
|
|
Conversion Elements
|
An act by D that interferes with P's right of possession in a chattel; the interference is SO serious that it warrants requiring D to pay the chattel's full value; intent and causation
|
|
|
Self Defense - Rule
|
when a person reasonably believes that she is being or is about to be attacked, she may use such force as is reasonably necessary to protect against injury.
|
|
|
Modern Trend Duty & Self Defense
|
duty to retreat before using deadly force if this can be done safely, unless actor is in her home.
|
|
|
Defense of Others - Rule
|
one may use force to defend another when teh actor reasonably believes that the other person could have used force to defend himself.
|
|
|
Defense of Property - Rule
|
One may use reasonable force to prevent the commission of a tort against her real or personal ppty; request to desist or leave must first be made unless it would be futile/dangerous
*NOTE: reasonable force - NOT deadly force unless invasion entails serious threat of bodily harm |
|
|
Recapture of Chattels - Rule
|
when another's possession began lawfully, one may use only peaceful means to recover the chattel; force may be used to recapture a chattel only when in hot pursuit of one who wrongfully possesses
|
|
|
Entry on Land to Remove Chattel - Rule for Wrongdoer's Land
|
When chattels are located on land of wrongdoer, owner is privileged to enter on the land and reclaim them at a reasonable time and in a reasonable manner, after first making a demand for their return.
|
|
|
Entry on Land to Remove Chattel - Rule for Land of Innocent Party
|
when the chattels are on land of an innocent, owner may enter and reclaim her chattel at a reasonable time and in a peaceful manner when landowner has been given notice of the presence of the chattel and refuses return.
|
|
|
Entry on land to Remove Chattel - Rule for on Land due to Owner's Fault
|
(negligently wandering cattle) no privilege to eneter on the land; may be recovered only thru legal process.
|
|
|
Privilege of Arrest and Rule for Mistake
-Cops -Citizens |
Cops: may make a reasonable mistake
Citizens: may make a reasonable mistake regarding the identiy of the felon but NOT regarding whether the felony occurred. |
|
|
Necessity - Rule
|
a person may interfere with the real/personal ppty of another when it is reasonably and apparently necessary to avoid threatened injury from a natural/other force and when the threatened injury is subst'lly more serious than the invasion; NOTE: under private necess - actor must pay for any injury caused
|
|
|
Defamation Elements
|
Defamatory lingo; of or concerning the P; publication by D to a third person and damage to P's reputation
|
|
|
Defamation Elements
Addit'l ones for matters of public concern |
Falsity of defamatory lingo and fault on part of D
|
|
|
Inducement and Innuendo
|
if the stmts is not defamatory on its face, P may plead addit'l facts as inducement to estb defamatory meaning by innuendo
|
|
|
Colloquium
|
if the stmt does not refer to P on its face, extrinsic evidence may be offered to estb that the stmt refers to P
|
|
|
Libel
|
written or printed publication of defamatory lingo; P does not need to prove special damages and general damages are presumed
|
|
|
Slander
|
spoken defamation; P must prove special damages UNLESS defamation falls within slander perse categories
|
|
|
Slander per se categories (no need to prove special damages) (4)
|
1) adversely reflect on one's conduct in business profession
2) one has a loathsome disease 3) one is or was guilty of a crime involving moral turp or 4) A woman is unchaste |
|
|
Defamation & Public Figure - requirements
|
Fault on D's part: must prove malice = knowledge that stmt is false or reckless disregard as to whether it was false; if malice = damages are presumed
|
|
|
Defamation & Private Person - requirements
|
NEED NOT PROVE MALICE - only negligence regarding the falsity - only actual injury damages are recoverable
|
|
|
Defenses to Defamation (4)
|
1. Consent
2. Truth (re: private matter) 3. Absolute Privilege 4. Qualified Privilege |
|
|
Invasion of Rt to Privacy: Appropriation of P's Pic or Name
|
it is necessary to show unauthorized use of P's pic/name for D's commercial advantage (ads, promos of products/services)
|
|
|
Invasion of Rt to Privacy: Intrustion Upon P's Affairs or Seclusion
|
the act of prying or intruding must be objectionable to a reasonable person; *private!
|
|
|
Invasion of Rt to Privacy: Publication of Facts Placing P in False Light
|
"False light" exists where one attributes to P views he does not hold or actions he did not take; std- *objectionable to a reasonable person- requires publicity;*if public concern - need MALICE
|
|
|
Invasion of Rt to Privacy: Public Disclosure of Private Facts about P
|
public disclosure of private info about P; std *obejectionable to a reasonable person; ok if stmt=true
|
|
|
Invasion of Rt to Privacy - Damages
|
Emotional distress and mental anguish are sufficient
|
|
|
Intentional Misrepresentation (Fraud, Deceit) Elements
|
-Misrep of a material fact
-Scienter - when D made the stmt she knew or believed it was false or no basis -Intent to induce P to act or refrain from acting in reliance upon misrep -Causation -Justifiable relieance -Damages - must suffer pecuniary loss |
|
|
Negligent Misrepresentation Elements
|
-Misrep by D in a business or profess capacity
-Breach of duty toward partic P -Causation -Justifiable Reliance -Damages |
|
|
Interference w/Business Relations Elements (4)
|
-existence of a valid K relat'ship btw P and 3rd party OR valid business expectancy of P
-D's knowledge of relat'ship or expectancy -intent'l interference by D inducing breach or termination of relat'ship or expectancy and -damages |
|
|
Negligence Elements
|
1) Duty on D to conform to a specific std of conduct for protection of P vs. unreasonable risk of injury
2) breach of D's duty 3) breach = actual and proximate cause of P's injury 4) Damage |
|
|
Duty of Care - 2 inquries to always make
|
1) was P foreseeable?
2) if so, what is the applicable std of care? |
|
|
Cardoza View - of Foreseeability
|
Foreseeable Zone of Danger - must be in it to recover
|
|
|
Andres View - of Foreseeability
|
Everyone is foreseeable
|
|
|
Rescuers & Foreseeability
|
a recuser is foreseeable where D negligently put himself or a third person in peril (danger invites rescue)
|
|
|
Std of Care - Professionals
|
required to possess the knowledge/skill of a member of the profession/occupation in good standing in similar communities; duty to disclose risks of treatment to enable pt to make informed consent
|
|
|
Std of Care - Children
|
held to the std of a child of like age, education, intelligence and experience - subjective * test!
|
|
|
Std of Care - Common Carriers and Innkeepers
|
held to a very high degree of care - liable for slight negligence; for this to apply *P MUST be passenger/guest
|
|
|
Std of Care - Duties owed by bailor
-Gratuitous Bailment -Bailment for hire |
for a gratuitous bailment: bailor must inform of known, dangerous defects in chattel
for a bailment for hire: must inform chattel defects of which he is or should be aware |
|
|
Std of Care - Duties owed by bailee
-sole benefit of bailor -sole benefit of bailee -mutual benefit |
Sole benefit of bailor: low std of care
Sole benefit of bailee: high std of care Mutual: ordinary care |
|
|
Std of Care - Duty of Possessor to Those OFF Premises
|
duty for unreasonably dangerous ARTIFICIAL conditions or structures abutting adjacent land (falling branches)
|
|
|
Std of Care - Duty of Possessor to Those ON Premises - inquries
|
Trespasser?
Licensee? Invitee? |
|
|
Std of Care for Trespassers
-Undiscovered -Discovered/Anticipated |
Undiscovered: NONE
Discovered: LO must (i) warn of or make safe concealed, unsafe ARTIFICIAL conditions known to LO involving risk of death/serious harm and (ii) use reasonable care in the exercising of active operations on ppty |
|
|
Attractive Nuisance Doctrine: What P must show (4)
|
1. dangerous condition on the land that the owner is or should be aware of
2. owner knowns or should know kids frequent the vicinity of the condition 3. condition is likely to cause injury 4. expense of remedying the situation is slight compared to magnitude of risk. |
|
|
Std of Care for Licensees
|
One who enters on the land w/possessor's permission for her OWN purposes/business - social guests. Duty to (i) warn of dangerous conditions (nat OR art) KNOWN to owner that create an unreasonable risk of harm and (ii) exercise reasonable care in conduct of active operations; *NO DUTY TO INSPECT OR REPAIR
|
|
|
Std of Care for Invitees
|
enter for purpose connected w/business of landowner-his benefit; same duties to licensees PLUS duty to make reasonable INSPECTIONS to discover nonobvious dangerous conditions
|
|
|
Std of Car for Users of Recreational Land
|
no fee charged; owner not liable for injuries UNLESS he willfully and maliciouisly failed to guard vs. or warn of dangerous condition/activity
|
|
|
Std of Care: Statutory - when this duty may replace more common law duty (4)
|
1. statute provides crim penalty
2. statute clearly defines std of conduct 3. P is within protected class 4. statute was designed to prevent type of harm P suffered |
|
|
Effect of Violation or Compliance with Statutory Std of Care
|
Negligence pers se = conclusive presumption of duty and breach of duty
|
|
|
Duty Re: Negligent Infliction of Emot'l Distress - 2 cases when physical injury not required
|
1) erroneous report of relative's death
2) mishandling of relative's corpose |
|
|
Negligent Infliction of Emot'l Distress - Zone of Danger Requirement
|
If P's distress is caused by threat of physical impact, threat must be direct at P or someone in her immediate presence *Note Modern Trend - more lenient (presence)
|
|
|
Res Ispa Loquitur (2) Elements
|
the very occurence of an event may tend to estb BREACH OF DUTY - P must show
1) accident causing the injury is a type that would not normally occur unless someone was negligent and 2) the negligence is attributable to D (instrumentality in exclusive control of D) |
|
|
Effect of Res Ispa Loquitur
|
P has made a prima facie case and no directed verdict may be given for D
|
|
|
Causation - Alternative Causes Approach
|
test applies where there are two acts, only one of which causes injury, but it is not known which one - BOP shifts to Ds, each must show his negligence is not the actual cause
|
|
|
Causation - Joint Causes/Subst'l Factor Test
|
where several causes bring about injury, and any one alone would have been sufficient to cause the injury, D's condict is the cause in fact if = subst'l factor in causing the injury.
|
|
|
Proximate Cause (Legal Causation)
|
D is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts = foreseeability test
|
|
|
Personal Injury Damages
|
P is compensated for all damages, BOTH special and general
|
|
|
Property Damages
|
measure of damage is the reasonable cost of repair or if ppty is nearly destroyed - FMV at time of accident
|
|
|
Punitive Damages
|
P may recover them if D's conduct is "wanton and willful," reckless or malicious
|
|
|
Last Clear Chance
|
An exception to Contributory Negligence - permits P to recover despite her contrib negligence; person with the last clear chance to avoid an accident who fails to do so is liable for negligence (*P's rebuttal to defense of contrib neglig)
|
|
|
Assumption of Risk
|
*ONLY in contrib neglig state! P may be denied recovery if she assumed teh risk of any damage caused by D's act- P must have (1) known of the risk and (2) voluntarily proceeded in the face of it. *defense applies to wanton/reckless conduct of D
|
|
|
Comparative Negligence
|
P's contrib neglig is NOT a complete bar to recover; trier of fact weights P's neglig and reduces damages accordingly; *Defense applies to wanton/reckless conduct of D
|
|
|
Partial Comparative Negligence v. Pure Comparative Negligence
|
Partial: allows P to recover ONLY if her negligence was less serious or no more serious than D
Pure: allow recover no matter how great P's neglig |
|
|
Strict Liability Elements
|
1. Existence of an absolute duty on the part of D to make safe
2. breach of that duty 3. breach of duty was the actual and proximate cause of P's injury and 4. damage to P's person/ppty |
|
|
Strict Liability for Domestic Animals - Rule
|
an owner is NOT striclty liable for injuries caused by domestic animals UNLESS he has knowledge of that particular animal's dangerous propensitiies not common to the species.
|
|
|
Strict Liability and Ultrahazardous/Abnormally Dangerous Activities - 3 elements
|
1)activity must involve risk of serious harm to persons/ppty
2)activity must be one that cannot be performed w/o risk of serious harm regarldess of care taken 3)activity is not commonly engaged in in the partic community |
|
|
Extent of Strict Liability - Scope
|
duty owed is the aboslute duty to make safe the normally dangerous characteristic of the animal or activity - owed to all foreseeable Ps
|
|
|
Defenses to Strict Liability
1)Contrib Neglig 2)Assump Risk 3)Comp Neglig |
-Contrib Neglig: no defense unless P knew of danger and unreasonable conduct caused activity to miscarry
-Assump of Risk: good defense -Comparative Neglig: applicable |
|
|
Required Elements (2) under Products Liability
|
1) a defect
2) existence of the defect when the product left D's control |
|
|
Products Liability- 3 types of Defects
|
1) manufacturing
2) design 3) inadequate warnings |
|
|
Govt Safety Stds and Products Liability -Proving a Defect
|
A product's noncompliance with govt safety stds estbs it is defective; compliance with safety stds = evidence but NOT conclusive that product is NOT defective
|
|
|
Required proof for manufacturing defect (products liability)
|
show that product failed to perform as safely as an ordinary customer would expect
|
|
|
Required proof for design defect (products liability)
|
show that the D could have made product safer, w/o serious impact on product's price or utility
|
|
|
Damages available in products liability
|
Compensatory damages and punitive damages
|
|
|
Products Liability based on Negligence - Who can be held liable
|
Commercial suppliers: manufacturers, wholesalers, retailers
|
|
|
Products Liability: Negligence claim - breach of duty 2 elements
|
1) negligent conduct of D leading to 2) the supplying of a defective product
*DIFFICULT to make retailers/whoesalers liable bc could just do a cursory inspection and then no breach |
|
|
Strict TORT Liability -who can be held liable
|
any commercial supplier - NOT casual sellers
|
|
|
Strict TORT liability - how to show breach of duty
|
show that the product is defective; defect makes the product unreasonably dangerous; retailers may be liable even if have no opp to inspect the product
|
|
|
Merchantability - defined
|
whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used
|
|
|
Fitness for a particular purpose - defined
|
arises when the seller knows or has reason to know that particular purpose for which the goods are required and that hte buyer is relying on teh seller's skill and judgment in selecting the goods
|
|
|
Express Warranty - Defined
|
any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates this.
|
|
|
Misrepresentation of Fact - when a seller will be liable re: product - 2 elements
|
1) stmt was of material fact concerning quality/uses of goods and
2) seller intended to induce reliance by the buyer in a particular transaction |
|
|
Private Nuisance - defined
|
a substantial, unreasonable interference with another private individual's use or enjoyment of ppty that he actually possesses or to which he has a right of immediate possession.
|
|
|
Public Nuisance - defined
|
an act that unreasonably interferes with the health, safety, or property rights of the community - to recover P must show unique damage not suffered by public
|
|
|
When a principal WILL be vicariously liable for torts of agents if agent = indep K (2)
|
1) Indep K is enggaed in inherently dangerous activities
2)the duty, bc of public policy considerations, is nondelegable - etc. bldg a fence around excavation site |
|
|
Dramshop Acts
|
create a cause of action in favor of any third person injured by the intoxicated vendee - based on negligence theory
|
|
|
Contribution
|
both Ds must have a measurable degree of culpability --allows D who pays more than his share of damages to have a claim vs. other jointly liable parties for the excess
|
|
|
Comparative Contribution
|
contribution is imposed in proportion to the relative fault of various Ds
|
|
|
Indemnity
|
when one of the parties is much more responsible than the other; involves shifting the entire loss btw/among tortfeasors
|
