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147 Cards in this Set
- Front
- Back
Intentional Tort (Prima Facie Case)
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Act
Intent Causation |
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Act (Intentional Tort)
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Volitional Movement
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Intent (Intentional Tort)
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Specific
General (substantial certainty) Transferred |
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Transferred Intent (limited to)
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Assault
Battery False Imprisonment Trespass to Land Trespass to Chattels |
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Causation (Intentional Tort)
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Legal Cause
Substantial Factor |
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Intentional Torts to the Person
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Battery
Assault False Imprisonment IIED |
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Intentional Torts to Property
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Trespass to Land
Trespass to Chattels Conversion (Nuisance) |
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Defenses to Intentional Torts
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Consent
Defense: self, others, property Privilege of Arrest Necessity Discipline |
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Harms to Economic and Dignitary Interests
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Defamation
Invasion of Right of Privacy Misrepresentation Wrongful Institution of Legal Proceedings Interference with Business Relations |
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Negligence (Prima Facie Case)
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Duty
Breach Causation Damages |
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Defenses to Negligence
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Contributory Negligence
Assumption of Risk Comparative Negligence |
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Strict Liability
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Animals
Ultrahazardous Activities Products |
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Products Liability
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Intent
Negligence Strict Liability Implied Warranties Representation |
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Battery (PFC)
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Harmful or offensive contact
To plaintiff's person Intent Causation |
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Harmful or Offensive Contact (Battery)
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Reasonable Person Standard
Direct or Indirect Consent can be implied |
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Plaintiff's Person (Battery)
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Anything connected to the Plaintiff
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Assault (PFC)
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An act by defendant creates reasonable apprehension
Of IMMEDIATE harmful or offensive conatact to plaintiff's person Intent Causation |
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Apprehension
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Knowledge
Apparent ability sufficient Words alone not sufficient |
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False Imprisonment (PFC)
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An act or ommission on the part of the defendant that confines or restrains plaintiff
To a bounded area Intent Causation |
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Sufficient Methods of Confinement or Restraint
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Physical barriers
Physical Force Threats Failure to release Invalid use of legal authority |
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Insufficient Methods of Confinement
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Moral Pressure
Future Threats |
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Time of Confinement
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Irrelevant
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Awareness of Confinement
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Required
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Bounded area
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No reasonable means of escape
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Intentional Infliction of Emotional Distress (PFC)
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An act by defendant amounting to extreme and outrageous conduct
Intent or recklessness Causation Damages (severe emotional distress) |
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Extreme and Outrageous Conduct
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Continuous in nature
Directed at a certain type of plaintiff (kids, old, pregnant, known hypersensitives) Committed by certain types of defendants (common carriers or innkeepers) |
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Nominal damages
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All intentional torts but IIED
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Bystander IIED
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a) Present when injury occurred
b) Close relative of injured person Defendant knew a) and b) |
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Trespass to Land (PFC)
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Physical invasion of plaintiff's real property
Intent Causation |
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Physical invasion (Trespass)
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Person
Tangible Objects propelled |
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Real Property (Trespass)
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Surface
Air and underground for reasonable distance |
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Intent (Trespass)
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Only to enter (mistake irrelevant)
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Potential Plaintiffs (Trespass)
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Anyone in actual or constructive possession
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Trespass to Chattels (PFC)
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An act by defendant that interferes with plaintiff's right of possession
Intent Causation Damages |
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Types of Interference (Trespass to Chattels)
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Damage
Dispossession |
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Damages (Trespass to Chattels)
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Actual damages required (at least to possesory right)
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Conversion (PFC)
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An act by defendant that interferes with plaintiff's right of possession
The interference is so serious that it warrants requiring defendant to pay chattel's full value Intent Causation |
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Acts of Conversion
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Theft
Wrongful Transfer Wrongful detention etc. |
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Subject Matter of Conversion
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Tangibles
Intangibles reduced to physical form (promissory note) |
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Potential Plaintiffs for Conversion
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Anyone with possession or immediate right to possession
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Consent (questions)
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Was there a valid consent?
Did the defendant stay within the scope of the consent? |
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Consent to criminal acts
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Can't
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Exceptions to Express Consent
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Mistake of defendant that tortfeasor knowingly took advantage of
Induced by fraud or duress |
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Implied Consent (Intentional Torts)
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Apparent consent (custom, usage, conduct)
Consent implied by law (save life, etc) |
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Capacity to commit an Intentional Tort
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Everyone
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Capacity to consent to an intentional tort
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Sane, sober adult
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Defense (self, others, property)
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Reasonable belief about to be attacked (no revenge)
Reasonable force necessary to protect |
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Self Defense
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Duty to retreat before using deadly force
Not available to aggressors May extend to injured third parties unless deliberate Reasonable mistake allowed |
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Defense of Others
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Reasonable belief
Reasonable mistake Deadly force |
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Defense of Property
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Request to leave (unless futile or dangerous)
Hot pursuit Not against one with a privilege Reasonable mistake allowed except as to whether entrant has privilege (unless entered weird) Not deadly force |
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Reentry onto Land
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No self-help
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Recapture of Chattels
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Timely demand
Force only to recover from wrongdoer (reasonable, no deadly) generally only in hot pursuit Mistake not allowed (except shopkeeper's privilege) |
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Entry on Land to Remove Chattel
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Wrongdoers: privileged
Innocent: notice, reasonable time and peaceful manner (liable for damage caused to land) Through owner's fault: no privilege |
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Shopkeeper's Privilege
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Detain suspect for reasonable time
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Privilege of arrest
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Invasion of Land
Liable for subsequent misconduct Mistake 1) Misdemeanor: only for breach of peace 2) Felony: Police may make reasonable mistake. Citizen may make reasonable mistkae regarding ID, but not regarding whether felony occurred. |
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Necessity
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Reasonably and apparently necessary to avoid injury greater than injury of invasion
Public (absolute) Private (liable for actual damages) |
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Discipline
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Parent or teach may use reasonable force to discipline a child
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Defamation (PFC)
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1. Defamatory langage
2. Of or concerning plaintiff 3. Publication 4. Damages to reputation On matters of public concern 5. Falsity 6. Fault |
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Defamatory language (definition)
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1. Adversely affect one's reputation
2. Allegation of facts or opinion based in facts - Name calling insufficient - Additional facts for innuendo - Living person requirement |
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"Of or corncerning" (Defamation)
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Reasonable listener standard
Extrinsic evidence may be offered (colloquium) |
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Group Defamation
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1) All members of small group, each member may file
2) Large group, no members 3) Some members, small group, reasonable person standard |
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Publication (Defamation)
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One person (other than Plaintiff)
Intentionally or negligently Each repitition a new publication Primary publishers as liable as authors |
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Libel (definition)
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Written or printed publication of defamatory language
No need to prove special damages General damages presumed |
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Slander per se
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No need to prove special damages
1) Adversely reflect on one's conduct in a business or profession 2) One has a loathsome disease 3) One is or was guilty of a crime involving moral turpitude 4) A woman is unchaste |
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Defamation on radio and TV
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Libel if sufficiently permanent, premeditated and broudly disseminated
Modren trend: ad libbed still libel |
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Matter of Public Concern (defamation)
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Public Figure must prove malice: knowledge or reckless disregard (ill will not enough)
Private Figure: negligence |
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Defenses to Defamation
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Consent
Truth Absolute privilege (judicicial proceedings, legislative debate, federal executive officials, compelled broadcasts, between SPOUSES) Qualified privilige (reports of official proceedings; statements in interest of publisher- defense of one's actions, property, or reputation; statements in interest of recipient; and statements in the common interest of publisher and recipient) Qualified privilege may be lost if: 1) the statement is not within the scope of the privilege 2) It is shown the the speaker acted with malice |
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Invasion of Privacy (four kinds)
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1. Appropriation
2. Intrusion 3. False Light 4. Public Disclosure of Private Facts |
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Appropriation (definition)
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1. Unauthorized use of plaintiff's picture or name
2. For defendant's Commercial Advantage - Liability generally limited to advertisements or promotions of products or services - Newsworthy exception |
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Intrusion
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1) Invasion by defendant of plaintiff's solitude
2) In a way objectionable to a reasonable person – Has to be in a place where there is an expectation of privacy (no public streets) – Does not require a trespass Examples: wiretapping, covert surveillance, peeping Tom |
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False Light
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1) Widespread dissemination of a major misrepresentation about plaintiff
2) Would be objectionable to reasonable person - If public concern, apply First Amendment tort doctrine - Misrepresentation need not be defamatory - Innocent mistake still actionable |
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Public Disclosure
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1) Widespread dissemination of confidential information about plaintiff
2) Would be objectionable to an average person - Truth inconsequential - Newsworthy exception - First Amendment probably applies |
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Damages (in Invasion of Privacy)
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No need to plead or prove special damages.
Emotional distress and mental anguish sufficient |
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Who holds right of privacy
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Personal right
Not assignable, no family, no corporations, does not survive death |
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Intentional Misrepresentation (PFC)
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1. Misrepresentation of a material fact
2. Scienter 3. Intent 4. Causation (actual reliance) 5. Justifiable reliance 6. Damages (pecuniary) |
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Misrepresentation (definition)
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Of a material fact
Silence generally not enough |
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Scienter (definition)
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Defendant
1) knew or believed it was false 2) there was no basis for statement |
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Intent (Misrepresentation - definition)
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Induce plaintiff to act or refrain from acting IN RELIANCE upon the misrepresentation
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Negligent Misrepresentation (PFC)
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1. Misrepresentation by defendant in a BUSINESS or professional capacity
2. Breach of duty toward foreseeable plaintiff 3. Causation 4. Justifiable Reliance 5. Damages |
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Wrongful Institution of Legal Proceedings
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1. Malicious Prosecution
2. Abuse of Process |
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Malicious Prosecution (PFC)
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1. Institution of criminal proceedings
2. Termination in plaintiff's favor 3. Absence of probable cause for prior proceedings 4. Improper purposes 5. Damages - Prosecutors immune - Most jurisdictions have extended to cover civil cases |
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Abuse of Process (PFC)
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1. Wrongul use of process for an ulterior purpose
2. Definite act or threat against plaintiff in order to accomplish an ulterior purpose |
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Interference with Business Relations (PFC)
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1. Existence of a valid contractual relationship between plaintiff and a third party OR a valid business expectancy
2. Defendat's knowledge of the relationship or expectancy 3. Intentional interference by the defendant inducing breach or termination of the relationship or expectancy 4. Damages - Privileges: proper attempt to obtain business for itself or protect its interest (especially where only plaintiff's expectancy) |
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Negligence (PFC)
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1) Duty
2) Breach 3) Causation 4) Damage |
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Duty of Care (2 questions)
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1) Was the plaintiff foreseeable?
2) If so, what is the applicable standrad of care? |
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Foreseeable/Unforeseeable Plaintiffs
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1) Cardozo: zone of danger/reasonable person
2) Andrews (minority): Everyone - Rescuers always foreseeable |
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Reasonable Person (Standard of Care)
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- Objective standard
- Mental characteristics, inexperience not taken into account - Physical characteristics of defendant are taken into account |
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Particular Standards of Conduct
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1. Professionals
2. Children 3. Common Carriers or Innkeepers 4. Automobile Driver to Guest 5. Bailment Duties 6. Emergency Situations |
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Professionals (standard of care)
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Standard of reasonable expert
Doctors: comparative locality, duty to disclose risks |
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Children (standard of care)
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Subjective (like age, education, experience, intelligence)
Unless adult activity (driving something with a motor) |
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Common Carriers/Innkeepers (standard of care)
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High degree; even slight negligence
Only to guests/passengers |
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Bailment Duties
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Owed by bailor:
1) Gratuitious, must inform of known, dangerous defects 2) For hire, known or knowable defects Duties owed by Bailee: 1. for sole benefit of bailor, low 2. sole benefit of bailee, high 3. mutual, ordinary |
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Undiscoverd Trespassers (duty of care)
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No duty
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Discovered or Anticipated Trespassers (duty of care)
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Activities: ordinary care
Conditions (attractive nuisance): 1. Artificial in nature (built) 2. Highly dangerous (kill or maim) 3. Knew about in advance 4. Concealed from entrant Short Version: Known, man-made death traps Children: 1. Known or knowable dangerous condition 2. Owner should know children frequent vicinity 3. Condition is likely to cause injury (child cannot appreciate risk) 4. Cost-effective to remedy |
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Licensees (duty of care)
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i.e. Social Guests
– Activities: Objective – Conditions: 1. Concealed 2. Known in advance by occupier – Short version: All known traps Modern minority trend: no distinctions |
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Invitees (duty of care)
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– Activities: objective
– Condition: 1. Concealed 2. Knew about in advance or could have discovered through a reasonable inspection (duty to inspect) – Short version: all reasonably knowable traps Modern minority trend: no distinction |
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Users of Recreational Land (duty of care)
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No liability unless wilfully and maliciously failed to guard against or warn of a dangerous condition or activity
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Lessor and Lessee (duties)
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Lessee has duty to maintain premises. If volunteers to repair, negligence standard
Lessor must warn of knowable nonobvious existing defects. Convenant to repair, liable for all unreasoable conditions |
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Statutory Standards of Care
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A statute's specific duty may replace the more general duty of care if:
1. the statute provides for a criminal penalty 2. the statute clearly defines the standard of conduct 3. plaintiff is within the protected class 4. statute was designed to prevent the type of harm suffered by the plaintiff Excuse: compliance would cause more harm than good or beyond defendant's control Violation (majority) negligence per se Compliance does not necessarily establish due care |
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Negligent Infliction of Emotional Distress
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Defendant creates a foreseeable risk to plaintiff of physical injury by:
1) causing a threat of physical impact 2) directly causing severe physical distress that by itself is likely to result in physical symptoms |
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Negligent Infliction of Emotional Distress - Injury Requirement
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Only some physical injury
Unless: 1) erroneous report of relative's death 2) mishandling of relative's corpse |
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Negligent Infliction of Emotional Distress - Zone of Danger Requirement
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Must be within zone of danger of physical injury
Modern trend: 1) Plaintiff and person injured by defendant are closely related 2) Plaintiff was present at the scene 3) Plaintiff observed or preceived the injury |
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Affirmative Duty to Act
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1. Assumption of the Duty by Acting (exception: Good Samaritan Statutes)
2. Peril due to defendant's conduct 3. Special Relationship between Parties (parent/child, innkeeper, public accommodation) 4. Duty to Control 3rd person (authority and ability) |
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Breach of Duty (Proof)
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Custom or Usage
Violation of Statute Res Ipsa Loquitor |
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Special Case for Duty to Entrants
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– Firefighters and police officers considered licensees, but they never recover for inherent risks of the job (assumption of the risk)
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Satisfying Duty owed to Entrants
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– Whenever a duty is owed to an occupier by an entrant, that duty can be satisfied by
1. Fix or repair the dangerous condition 2. Give a warning (changes concealed condition to open and obvious) |
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Res Ipsa Loquitor
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1) The accident that does not normally occur in the absence of negligence
2) Must demonstrate that this type of accident normally happens because of the negligence in the defendant's position - Only PFC, no directed verdict for Plaintiff unless also negligence per se |
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Actual Cause
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– but for test
– Multiple Defendant Scenario and Mingled Causations 1) Substantial Factor Test: did each defendant contribute to the injury/misfortune in a substantial way? 2) Joint and severally liable – Multiple Defendant Scenario and Unascertainable Cause 1) Shift the burden of proof 2) If don't satisfy, joint and severally liable |
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Proximate Cause: Direct Cause Cases
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All foreseeable harm
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Proximate Cause: Indirect Cause
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1) Foreseeable Results Caused by Foreseeable Intervening Forces: always liable
2) Foreseeable Results Caused by Unforeseeable Intervening Forces: usually liable 3) Unforesseable Results Caused by Foreseeable Intevening Forces: not liable 4) Unforeseeable Results, Unforeseeable Intervening Force: not liable 5) Unforeseeable Extent or Severity of Harm: always liable (EGGSHELL SKULL) |
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Common Dependent Intervening Forces
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1) Subsequent medical malpractice
2) Negligent rescuers 3) Efforts to protect property or other person 4) Injuries caused by reactions 5) Subsequent accidents substantially caused by original injury |
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Independent Intervening Forces
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1) Acts of God
2) Negligence of 3rd person 3) Crimes and intentional torts of 3rd persons - liable if defendant's negligence increased the risk |
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Damages (Negligence)
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1. Personal Injury (all)
2. Property (reasonable repair or fair market) 3. Punitive (wilfull and wanton) 4. Nonrecoverable Items (interest; attorney's fees) 5. Duty to Mitigate 6. Collateral Source Rule |
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Contributory Negligence
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1) Complete bar to recovery
2) No defense to intentional tort 3) Exception: last clear chance |
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Assumption of the Risk
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Denied recovery if:
1) Known risk 2) Voluntary proceeded - Can be implied or express - No assumption if fraud, duress, emergency or no alternatives - No defense to intentional torts |
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Comparative Negligence
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- Pure: recover regardless
- Majority: only if negligence smaller - No last clear chance or implied assumption of risk |
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Strict Liability (PFC)
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1. Absolute duty to make safe
2. Breach 3. Actual and Proximate Cause 4. Damge to person or property |
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Liability for Animals
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1. Strict liability for foreseeable damage done by trespass
2. Strict liabilty for Wild Animals 3. No strict liability for Domestic animals, unless known propsensity 4. No strict liability to trespassers (may be intentional tort) |
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Ultrahazardous or Abnormally Dangerous Activities
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1. Involve risk of serious harm
2. Cannt be performed without risk 3. Not commonly engaged in in particular community |
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Defenses to Strict Liability
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1. Apply comparative negligence
2. Assumption of the Risk - No contributory negligence |
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Products Liability (theories)
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1. Intent
2. Negligence 3. Strict Liability 4. Implied Warranties of merchantability and fitness for a particuar purpose 5. Representation (express warranty and misrepresentation) |
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Product Liabilities (common elements)
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1) Defect (manufacturing, design, inadequate warning)
2) Existence of defect when it left defendant's control |
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Manufacturing Defect (definition)
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Product failed to perform as safely as an ordinary consumer would expect (includes food)
Different than all others that came off line Defendant must expect reasonable misuse |
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Design Defect
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Defendant could have made product safer without serious impact on the product's price or utility
- Alternative Design - Cost-Effective - Practical |
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Government Safety Standards (product liability)
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Noncompliance is per se defective
Compliance only evidence |
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No liability in Products Liabiality where
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1) Scientifically unkowable risk
2) Unavoidable unsafe product |
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Who's liable in products liability
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Manufacturers, wholesalers and retailers
- Not casual sellers or providers of services |
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Products Liability - Strict Liability (PFC)
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1. Merchant in chain of distribution
2. Defective 3. Existed when product left the Defendant's hand 4. Foreseeable user making a foreseeable use 5. Causation 6. Damages (physical inury or property damage) - Disclaimers irrelevant |
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Merchantability
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- Merchantability: goods are of average acceptable quality and are generally fit for ordinary purposes
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Fitness
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Arises when the seller knows or has reason to know the particular purposed for which the goods are required and that the buyer is relying on the seller's skill and judgment in selecting the goods
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Implied Warranties of Merchantability and Fitness (5 points)
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1. Buyer, family, household, and guests can sue for personal injury
2. Fault not required 3. Personal injury, property damages, and PURELY ECONOMIC loss are recoverable 4. Assumption of risk and failure to give notice of breach (FCC) are defenses 5. Disclaimers generally rejected |
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Express Warranty
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Any affirmation of fact or promise that become part of the basis of the bargain
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Misrepresentation of Fact (product liability)
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1) Statement was material fact concerning quality
2) Seller intended to induce reliance - strict liability |
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Private Nuisance
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Substantial, unreasonable interference with another private individual's use or enjoyment of property that he actually possesses or to which he has a right of immediate possession
- Balancing Test |
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Public Nuisance
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Unreasonably interferes with the health, safety or property rights of the community
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Remedies for Nuisance
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1. Damages
2. Injunction 3. Abatement by self-help |
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Defenses to Nuisance Liability
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1. Legislative authority
2. Conduct of others 3. Coming to the nuisance (for the sole purpose of bringing lawsuit) - No contributory negligence |
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Employer-Employee (vicarious liability)
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– Respondeat Superior: employer is responsible for torts of employee if within the scope of employment
– Intentional torts normally outside scope unless designed to serve employer's purposes – Also: Negligent Hiring |
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Vicarious Liability
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1. Employer/Employee
2. Owner/Independent Contractor 3. Parent Child 4. Owner/Driver 5. Bailor for Bailee 6. Tavernkeeper 7. Patner/Joint Venturer |
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Owner/Independent Contractor (Vicarious Liability)
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– Not liable
- Unless ultrahazardous – Exception: landowner if invitee hurt on land (non-delegable duty) |
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Parent/Child (vicarious liability)
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- Not liable
- Unless agent - Look for parental negligence |
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Patnerships and Joint Venturers (Vicarious Liability)
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- Liable for conduct within scope and course
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Tavernkeepers (vicarious liability)
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- Not liable unless Dramshop law
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Owner/Driver (Vicarious Liability)
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- Not liable
- Unless agent - Some states: liable for family car or permissive use |
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Contribution
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Allows a defendant who pays more than his share of damages to have a claim against other jointly liable parties for the excess
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Indemnity
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Shifting entire loss between or among tortfeasors
Available in 1) Contract 2) Vicarious Liability 3) Strict products liability 4) Difference in degree of fault (some places) |
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Loss of Consortium
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Whenever married, the uninjured spouse gets a second and separate cause of action in their own right
– Can recover 1) Loss of services (do the laundry, mow the lawn) 2) Loss of society (companionship) 3) Loss of sex - Similar action available for lost child (probably not the sex part) |