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;
103 Cards in this Set
- Front
- Back
|
Intentional Torts
|
1. Battery
2. Assault 3. False Imprisonment 4. IIED 5. Tresspass to Land 6. Tresspass to Chattel / Conversion |
|
|
Intent - generally
|
1. D desired to bring about the forbidden outcome OR
2. D acted with knowledge that the outcome is virtually certain to pass |
|
|
Battery
|
1. Harmful or Offensive Contact
2. With P's person |
|
|
Assault
|
1. D intentionally places P in apprehension
2. Of an immediate battery - overt physical conduct |
|
|
False Imprisonment
|
1. D intentionally commits an act of restraint
2. P knows about it or is harmed by it 3. P is confined in bounded area |
|
|
IIED
|
1. D engages in outrageous conduct - continuous/repetitive; common carrier / innkeeper; P is in fragile class
2. With the objective/purpose to upset P 3. P suffers severe distress |
|
|
Tresspass to Land
|
1. D intended to get to the land
2. Physical invasion - D entered or propelled tangible object 3. Land - air above, soil below |
|
|
Tresspass to Chattel
|
1. D intentionally - intended to do the act
2. Invaded P's personal property - damaged or took it away 3. Modest harm |
|
|
Conversion
|
1. D intentionally - intended to do the act
2. Invaded P's personal property - damaged or took it away 3. Extensive, significant or great damage *Can recover full value of item involved* |
|
|
Affirmative defenses to Intentional Torts
|
1. Consent
2. Self-Defense 3. Defense of Others 4. Defense of property 5. Necessity |
|
|
Consent
|
Sane and sober adult
1. Capacity - not child, drunk, insane 2. Express or Implied (custom / usage or reasonable interpretation) 3. Scope of consent |
|
|
Self Defense / Defense of others
|
1. D has reasonable belief that he is being threatened
2. The threat is in progress or imminent 3. D acts proportionally - can use deadly force if his life is threatened |
|
|
Defense of property
|
1. D has reasonable belief his property is being threatened
2. The threat is in progress or imminent 3. D acts proportionally - no deadly force |
|
|
Necessity
|
1. Public and private
2. Applies only to property torts |
|
|
Public necessity
|
1. D's invasion of property is to protect the community as a whole or a significant group of people
2. Absolute defense |
|
|
PRivate Necessity
|
1. D invades P's property in an emergency to protect a personal interest - can remain as long as the emergency
2. Limited Defense 3. D must pay for actual harm done to P's property; no liable for nominal/punitives |
|
|
Common Law Defamation
|
1. D makes defamatory statement
2. Statement specifically identifies live P 3. D publishes stmt 4. If not slander per se or libel, D must prove economic damages |
|
|
Slander per se
|
1. Re: O's business or profession
2. Crime of moral turpetude 3. Imputing unchastity to woman 4. P suffers from loathsome disease - leprosy, VD |
|
|
First Amendment Defamation
|
IF matter is of legit and genuine public concern
1. D makes defamatory statement 2. Statement specifically identifies live P 3. D publishes stmt 4. P must show falsity 5. P must show fault - if public figure, knowing or reckless; if private, negligent |
|
|
Defenses to Defamation
|
1. Consent
2. Truth 3. Privilege |
|
|
Defense to defamation - absolute privilege
|
1. D only communicated to spouse
2. Officers of govt engaged in official duties |
|
|
Defense to defamation - qualified privilege
|
1. Letters of rec; credit reports; stmts to police
2. D must limit to matters relevant to subject at hand 3. D makes reasonable misstatement of fact |
|
|
Invasion of Privacy - four torts
|
1. Appropriation
2. Intrusion 3. False Light 4. Dislosure |
|
|
Appropriation
|
1. D uses P's name or picture
2. For commercial advantage 3. Exception - newsworthiness |
|
|
Intrusion
|
1. D invades P's solitude - P has a reasonable expectation of privacy
2. In way objectionable to an average person |
|
|
False Light
|
1. Widespread dissemination
2. Of a major misrepresentation about P 3. That would be objectionable to an average person 4. Does not require intent - can be inadvertent misunderstanding |
|
|
Disclosure
|
1. Widespread dissemination
2. OF confidential information about P 3. That would be objectionable to avg person 4. Exception - newsworthiness |
|
|
Duty Std of Children
|
Standard of care that someone of same age, experience, and itelligence
Exception - child engaged in adult activity |
|
|
Duty Std of Professionals
|
Professional must give patient / client the care of the average member of the profession practicing in a similar community
|
|
|
Dute owned to undiscovered trespassers
|
NO DUTY - unforeseeable
|
|
|
Duty to discovered / anticipated trespassers
|
1. Activities - reasonable care
2. Dangerous conditions - known, man-made death trap (artificial, highly dangerous, concealed) |
|
|
Duty to Licensee
|
1. Property not generally open to public
2. Activities - reasonable care 3. Conditions - known traps (concealed, known) |
|
|
Duty to Invitees
|
1. Land open to public or significant segment of public
2. Activities - reasonable care 3. Reasonably knowable traps (concealed, could have discovered thru reasonable inspection) |
|
|
Duty to Child Trespassers
|
1. Higher Std
2. If likely that kids trespass, then have to taek precautions to make area child proof 3. Child does not have to be injured by the thing that lured them |
|
|
How can duty re: condition on land be satisfied?
|
1. Fix or repair the dangerous condition
2. Give a warning |
|
|
Statutory std of care
|
Class of person / Class of Risk
1. P was member of the class that the statute was designed to protect 2. P's accident/injury was w/in the class of risks that statute was designed to prevent 3. Exception - compliance more dangerous; compliance impossible |
|
|
When is there a duty to rescue?
|
1. D caused peril
2. Pre-existing relationship - family member, common carrier or innkeeper; land occupier and invitee 3. Duty to rescue reasonably under the circumstances 4. If rescue negligent - liable |
|
|
Negligent Infliction of Emotional Distress
|
1. Near Miss - D breached other duty; P almost sustained physical trauma (zone of danger); physical manifestation
2. Bystander Distress - physically present; witness neglient injury; to a close family member |
|
|
Res Ipsa
|
1. Duty is reasonable person
2. P lacks info about what D did wrong 3. P must show that accident is of a type that does not normallly happen w/o negligence 4. This type of accident normally happens b/c of negligence of someone in D's position - right person |
|
|
Multiple Defendant, Mingled Causation
|
Substantial Factor Test - did each D contribute to the injury in a significant or substantial way
If yes - joint and several |
|
|
Multiple Defendants, Unascertainable Cause
|
Summers
Burden of proof shifted to Ds to prove they did cause injury If cannot prove - joint and several |
|
|
Well Settled Quartet of proximate cause questions
|
1. Intervening negligent medical treatment
2. Intervening negligent rescue 3. Intervening protection or reaction forces 4. Subsequent disease or accident |
|
|
Affirmative Defenses to Negligence
|
1. Comparative Negligence
2. Contributory Negligence |
|
|
Strict Liability - areas
|
1. Wild animals
2. Ultrahazardous activities 3. PRoducts |
|
|
Injuries caused by animals
|
1. If domestic - if you know animal has vicious propensities - strict liabilty
2. Trespassing cattle - strict 3. Wild - strict |
|
|
Ultrahazarous Activities
|
1. Activity cannot be made safe
2. Activity poses severe risk of harm 3. Activity is uncommon in the area |
|
|
PRoducts - Strict liability
|
1. D is merchant - any merchant in chain of distribution
2. PRoduct is defective - manufacturing defect; design defect 3. Defect existed when product left D's hands 4. P is foreseeable user making foreseeable use of product |
|
|
What are the possible damages for negligence?
(Must be proved) |
1. Personal Injury - past, present, prospective
2. Property Damage - reasonable cost of repair; if property destroyed, fair market value at time of accident 3. Punitives - if D's conduct wanton, willful, reckless, malicious |
|
|
What is not recoverable damages for negligence?
|
1. Interest from date of damage in personal injury
2. Attorneys fees |
|
|
Contributory Neligence
|
1. Negligence by P that contributes to her injuries
2. No defense to intentional torts 3. Complete bar to P's recovery |
|
|
Last Clear Chance Doctrine
|
1. Exception to contributory negligence
2. Person w/last clear chance to avoid accident who fails to do so is liable for negligence |
|
|
Imputed Contributory Negligence
|
Contributory neg of third party only imputed when relationship b/t third party and P is such that court coudl find P vicariously liable for third party.
|
|
|
Assumption of risk
|
1. P must have known of the risk and voluntarily proceeded in face of the risk
2. Knowledge of risk can be implied where avg person would appreciate it 3. P does not assume risk where no available alternative 4. No defense to intentional torts |
|
|
Comparative Negligence
|
1. Trier of fact weighs P's negligence and reduces damage accordingly
2. Majority - P can only recover if neg was less serious or no more serious than D's 3. Minority - PURE comparative neg - allow recovery no matter how great P's neg |
|
|
Common elements in all products cases - negligence, strict liabiltiy, intent, implied warranties, representation
|
P must show
1. Defect 2. Existence of defect when product left D's control |
|
|
Types of defects
|
1. Manufacturing
2. Design 3. Inadequate Warnings |
|
|
Manufacturing Defect
1. What is it? 2. How proved? |
1. Product comes off line different and more dangerous than products made properly
2. D liable if P can show that product failed to perform as safely as an ordinary consumer would expect (D must anticipate reasonable misuse of product) |
|
|
Design Defect
1. What is it? 2. How proven? |
1. All products of a line are same but have dangerous propensities
2. P must show that D could have made the product safer, w/o serious impact on product's price or utility |
|
|
Inadequate Warnings
1. What is it? |
1. Manufacturer fails to give adequate warnings re: risks involved with product and danger not apparent to users
|
|
|
What is effect of govt safety stds on proving liabilty for defective products?
|
1. Noncompliance - proves it is defective
2. Compliance - evidence - but not conclusive - that product is not defective |
|
|
How can P prove existence of defect when product left D's control?
|
1. Inferred when product moved through normal channels of distribution
|
|
|
If D intended injury with unsafe product (intent/substantially certain to occur) - what action?
|
1. Battery
2. Any injured P can sue 3. Punitives avaialable |
|
|
If products action based on negligence:
1. Who can sue? 2. What is the breach? 3. Causation issue? |
1. All foreseeable Ps (user, consumer, bystander
2. Breach - neligent conduct leading to supplying of defective product - Res ipsa - Difficult to get retailers / wholesalers 3. Wholesalers negligent failure to discover defect does not supercede original manufactuerer's neg |
|
|
What is the the duty of retailers/wholesalers re: products?
|
Duty of cursory inspection - very difficult to hold them liable
|
|
|
Damages in negligence products case
|
P must show physical injury or property damage
No recovery if only suffered economic loss |
|
|
Prima facie case for strict liabilty
|
1. Strict duty owed by COMMERCIAL SUPPLIER of product
- Product must reach P w/o substantial alteration 2. breach - defect; defect makes product unreasonably dangerous 3. actual and proximate cause - Actual - defect existed when left P's control 4. Damage |
|
|
In a strict liability products case, can a retailer be held liable even if he did not have opportunity to inspect?
|
YES
|
|
|
Is contributory negligence a defense to strict products liability?
|
1. NO if P merely failed to discover the defect or to guard against its existence OR where P's misuse was reasonably foreseeable
|
|
|
What are the valid defenses to strict products liability?
|
1. Assumption of risk
2. Comparative negligence - states will apply |
|
|
Implied warranty of merchantability
|
Warranty that:
1. The goods are of average acceptable quality and 2. Generally fit for the ordinary purpose for which the goods are used |
|
|
Implied warranty of fitness for a particular purpose
|
1. Seller knows or has reason to know
2. The particular purpose for which the goods are required AND 3. That buyer is relying on the seller's skill and judgment in selecting the goods |
|
|
Who can sue on an implied warranty?
|
1. Buyer, family, household, guests
2. Bailee and lessee |
|
|
Does P have to prove fault in showing a breach of an implied warranty?
|
NO
|
|
|
What are the damages recoverable for a breach of implied warranty?
|
1. Personal Injury
2. Property Damages 3. Purely economic loss |
|
|
Defenses to implied warranty liabilty
|
1. Assumption of risk - using product while knowing of the breach of warranty
2. Contributory negligence - to extent of strict liabilty cases (unreasonable misuse) 3. Failure to give notice of breach is defense under UCC |
|
|
Representation Theories
|
1. Express WArranty
2. Misrepresentation of Fact |
|
|
Express Warranty
|
1. Any affirmation of fact or promise concerning goods that becomes a part of the basis of the bargain
3. Consumer, user, bystander can sue - If consumer - warranty must have formed basis of bargain - If bystander - sufficient that someone relied 2. Disclaimer will be effective only if consistent with warranty |
|
|
Misrepresentation of Fact
|
1. Statement of material fact concerning quality / uses of goods (not puffery)
2. Seller intended to induce reliance 3. Justifiable reliance required - does not have to be V's (can be prior purchaser) 4. Defenses - assumption of risk NO; unreasonable misuse (unless D intentionally misrep) |
|
|
Private Nuisance
|
1. Substantial, unreasonable interference with another private person's use or enjoyment of his property
|
|
|
Unreasonable interference required for private nuisance
|
1. Severity of inflicted injury must outweigh the utility of D's conduct
2. Court will take account that every person is entitled to use land is a reasonable way - considering neighborhood, land values, alternative courses of conduct open to D |
|
|
Public Nuisance
|
1. Act that unreasonably interferes with the health, safety or property rights of the community
2. Private party can only recover if suffered unique damage not suffered by public at large |
|
|
What are the remedies for nuisance?
|
1. Damages
2. Injunction - if legal remedy unavailable/inadequate; ct will balance hardships 3. Abatement by Self-Help - private nuisance - notice to D and refusal to act; only necessary force |
|
|
What are the defenses to nuisance?
|
1. Legislative authority - zoning ordiance - not absolute but persuasive
2. Conduct of others - D can only be liable for its own nuisance 3. Contributory Neg - no good unless P suing in neg 4. Coming to Nuisance - generally no |
|
|
Coming to the nuisance
|
1. Purchasing land next to already existing nuisance
2. Can then pursue an action 3. P will only be barred if came to nuisance only to sue |
|
|
Doctrine of Respondeat Superior
|
1. Employer vicariously liable for acts w/in scope of employment
2. Liable if employee makes minor deviation for his own purposes 3. Not liable if deviation is great in time or duration 4. Employer may be liable for own negligence in selection or supervision |
|
|
When is employer liable for intentional torts?
|
1. Force authorized by employment (bouncer)
2. Friction generated by employment (bill collector) 3. Employee furthering business of employer |
|
|
When is employer liable for independent contractor?
|
General rule - not laible
Exceptions 1. Independent Con engaged in inherently dangerous activities 2. Duty, b/c of public policy, is nondelegable Employer may be liable for own neg in selecting or supervising |
|
|
When is car owner liable for driver?
|
1. Rule - owner not vic liable
2. Family car doctrine - owner liable for immediate family or household members driving with express/implied permission 3. Permissive use - some states hold liable for anyone driving w/owners consent 4. Negligent entrustment - owner may be liable for own negligence in entrusting car for driver |
|
|
Is bailor liable for bailee?
|
Generally no - but may be liable for his own negligence.
|
|
|
When is parent liable for child?
|
1. Rule - not vicariously liable
2. Child acting for parents - will be liable 3. Parent liable for own neligence for allowing child to do something OR if child's past conduct showed tendency to injure |
|
|
When is tavernkeeper liable for acts of drunk patron?
|
1. General rule - NO
2. Dramshop Acts - laible to third person injured by drunk patron 3. May also be liable for own negligence - serving intoxicated person / minor |
|
|
Joint and several liability
|
1. If injury indivisible - each D is liable to P for entire damage
2. If injury is divisible - each D liable only for identifiable poriton |
|
|
Contribution
|
1. Both Ds have measurable degree of culpability for tort
2. D who pays more than his share of damages can claim against other jointly liable parties for excess 3. Majority - proportion to relative fault; Minority - equal shares |
|
|
Indemnity
|
1. Applies where one party is much more responsible than other
2. By contract; vicarious liability; strict products; identifiable difference in fault |
|
|
Survival Action
|
1. Allows one's cause of action to survive death of one or more of the parties
2. Does not apply to defamation, invasion of privacy, malicious prosecution |
|
|
Wrongful Death
|
1. Recovery for pecuniary injury resulting to spouse and next of kin
2. Creditors have no claim against amt awarded 3. Recovery only to extent that deceased could have recovered in action if he had lived |
|
|
Interference with consortium and services
|
1. Brought by either H or W
2. Derivative - if there is a defense that would prevent recovery by injured family member, then can't recover |
|
|
Federal Govt Immunity
|
1. Fed Tort Claims Act - govt waived immunity for tortious acts
2. Still has immunity for assault, battery, false imprisonment, false arrest, mal pros, abuse of process, libel and slander, misrep and deceit, interference w/contract rights 3. Immunity for discretionary acts 4. No immunity for ministerial acts |
|
|
State and local govt immunity
|
Most states and local govt have waived immunity
If there is still immuity - only for govt functions - not for proprietary functions (coudl have been provided by private corp) |
|
|
Charitable Immunity
|
Most eliminated
|
|
|
Malicious Prosecution
|
1. Institution of criminal proceedings against P
2. Termination in P's favor 3. Absence of PC - insufficient facts for reasoanble person to believe P was guilty 4. Improper purpose 5. Damages Prosecutors are immune Extended to civil cases |
|
|
Abuse of process
|
1. Wrongful use of process for ulterior purpose
2. Definite act or threat against P to accomplish ulterior purpose |
|
|
Interferene with Business Relations
|
1. Existence of valid contractual relationship or valid business expectancy
2. D's knowledge of the relationship or expectancy 3. Intentional interference by D induce braech or termination 4. Damages DEFENSES 1. Privilege - proper attempt to obtain business for itself / protect its interests (esp if only P's prospective business) |
