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22 Cards in this Set

  • Front
  • Back
Intentional Infliction of Emotional Distress
1) Extreme and Outrageous Conduct, w/ the purpose of really upsetting the P
- Mere insults - don't count
2) Intent or Recklessness (this is special to IIED)
3) Causation
4) Damages: Severe Distress (only intentional tort which must prove damages)
- Factors: Continuous; D is common carrier/innkeeper; P is member of fragile class
NOTE: Hypersensitivity may count if D knows about it and exploits
Trespass of Land
1) Intent - to get to that location, not to defy property rights
2) Physical Invasion - actually enter real estate, or propel a tangible object
3) Land - includes ground below and air above to a reasonable degree
Intentional Torts: Affirmative Defenses
1) Consent - express and implied (custom or D's reasonable interpretation)
2) Self-defense; Defense of Others; Defense of Property
3) Necessity - public (absolute immunity) and private (limited immunity)
Slander (damages?)
Spoken defamation.

Slander per se - no need to show damages:
- Statement regarding prof. or biz
- Crime of moral terpitude
- Imputing chastity of woman
- P suffers from loathsome disease

Non per se - must show ECONOMIC loss
Defamation: Affirmative Defenses
1) Consent
2) Truth (burden of proof on D)
3) Privilege
Absolute - spouses and gov't officers
Qualified - based on context or circumstances of speech
Duty of Care: D's are obligated to give...
...a duty of care to 1) FORESEEABLE P's that 2) a reasonably prudent person would give under similar circumstances (plain standard)

- Superior knowledge
- Physical Limitations of D
Duty of Care: Special Standards (6)
1) Children
2) Professionals
3) Occupier of Land
4) Statutory Standards of Care
5) Duties to act affirmatively
Duty of Care: Discovered Trespasser
includes anticipated trespassers

Activities - plain standard

Conditions - Duty to protect when condition is:
1. Artificial in nature
2. Highly dangerous
3. D had knowledge
4. Condition is concealed

"To protect from konwn, manmade deathtraps"
Duty of Care: Licensee
People entering w/permission, but not generally open to public (e.g. social guests)

Activities - plain standard
Conditions - Duty of protect when condition is:
1. Hidden
2. Known by the occupier

"To protect from all known traps on the land"
Duty of Care: Invitee
Land is open to the public generally

Activities - plain standard

Conditions - Duty to protect if condition is:
1. Hidden
2. Occupier knew, or could have reasonably discovered, the trap

"To protect from reasonably, knowable traps" (i.e. a duty to inspect)
Duty of Care: Occupiers of Land (special cases)
1. Firefighters/police - fall into licensees but doesn't recover based on assumption of risk
2. Child trespassers - applies to artificial conditions (C.23)

NOTE: Remedying hidden problems - 1) Fix the problem, or 2) Post a WARNING sign
Duty of Care: Acting affirmatively
No duty

1) If D caused the peril
2) If a pre-existing relationship exited
3) Rescue has commenced (then held to standard or ordinary rescuer)
Negligent Infliciton of Emotional Distress
1) Breach of some other duty (negligence)
2) A near miss of a physical injury (within zone of danger)
3) Subsequent physical manifestations of injury (physical symptoms, meaning seen and measurable)

Bystander - Physically present; Witness the injury; Family member
Proximate Cause
Direct Cause - easy case

Indirect Cause - intervening events (found to still have prox. cause):
1. Intervening, neg. medical treatment
2. Intervening, neg. rescue
3. Intervening, protection or reaction forces
4. Subsequent disease or accident
Negligence: Affirmative Defenses
1) Comparative Fault - D shows that P is also at fault; jury assigns a %; P's award is reduced by that %.

2) Assumption of Risk - P must know the risk and voluntarily proceed in face of risk
Strict Liability: Categories
1) Animals
- Domesticated (not SL unless knew about viscous past)
- Trespassing cattle
- Wild Animals
2) Ultrahazardous activity
3) Defective consumer products
SL: Consumer Products
1) Strict duty owed by a merchant (includes commercial lessors and chain of distribution)
2) Breach of duty: Product is defective (manufacturing and design)
- Hypo Design: 1) Safer; 2) Economical; 3) Practical
3) Actual Cause: Defect existed at time product left D's hands
4) Prox Cause: Foreseeable user making foreseeable use of the product (foreseeable uses > intended uses)
5) Damages
SL: Affirmative Defenses
Same as negligence (comparative fault)
Vicarious Liability (types of relationships)
1) Employer/employee
2) Hiring party/Independent contractor
- Exception: When invitee gets hurt on land when IC doing a job
3) Car owner/driver - not liable for driver, unless doing an errand for the owner
4) Parents/children - not liable for kids' torts
Intentional Misrepresentation (fraud or deceit)
1) Misrepresentation of a material fact
2) Scienter
3) Intent
4) Causation
5) Justifiable reliance
6) Damages
Negligent Misrepresentation
1) Misrepresentation by D in biz or prof capacity
2) Breach of duty toward a P
3) Causation
4) Justifiable reliance
5) Damages
Products Liability Theories
1) intentional
2) negligence
3) strict liability
4) implied warranties of merchantability
5) representation theories (express warranty and misrepresentation)