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108 Cards in this Set

  • Front
  • Back
1)conscious desire that result will occur or 2) knowledge that result will occur 3) Knowledge that results is substantially certain to occur.
Assault is the intentional placing of another in a reasonable apprehension of an imminent harmful of offensive touching without consent or privilege
Battery is the intentional harmful or offensive touching of another without consent or privilege.
False Imprisonment is the intentional physical or psychological confinement of another within fixed boundaries for any period of time without consent or privilege
IIED is conduct of an extreme and outrageous nature which is calculated to cause and which does cause severe emotional distress.
Tresspass to land is the intentional entry upon the land in possession of another without consent or privilege
The intentional interference with the chattel in possession of another without consent or privilege. 1) taking of chattel without consent 2) obtaining possession by fraud 3) destroying the chattel 4) barring P’s access to chattel 5) interfering with P’s possession of lease/rented chattel – Remedies diminution in value; reasonable rental value
The intentional exercise of wrongful dominion and control over the chattel of another without consent or privilege.
Defendant may be liable to plaintiff for negligence if it can be determined that the defendant owed a duty of care to the plaintiff and that defendant breached that duty, and that the plaintiffg suffered damages which were actually and proximately caused by defendant’s breach
The duty is created when defendant does an act which creates a reasonable foreseeable risk of harm. If there is such a reasonable risk of harm did defendant act reasonably under the circumstances.
General duty is a standard of care based on the reasonable person test under the same or similar circumstances. Custom not considered a standard of care failure to comply may be; adults and disabilities are held to the reasonable person test and no allowance is made for mental disabilities; Children are judged by age, intelligence, and experience beware of adult standards; experts measured by standard in the trade (Dr national standard unless general practictioners; common carriers=higher standard; Cardozo=foreseeable =zone of danger; Andrews= general duty owed to everyone.
V-GOLD (Violation of Statute; Guest Statute; Omission to Act; Landowner-Occupier; Duties owed by Lessors of Land
ICI+Criminal statute –civil liability;I-Intent of legislature; C- Class of persons to be protected; I-Type of injury suffered +-Evidentiary effect- Negligence per se, Inference of negligence; California presumption of negligence. (violation of statute can be used to prove contributory negligence on part of P
If P is a guest then he must show gross negligence (recklessness ) on part of the driver in order to recover; prevent insurance collusion
No duty found no duty owed; no duty to go to the aid of another in an emergency unless-injured by instrumentality under D’ control,. special relationships, statutory due to act; No duty to control 3rd person unless actual ability and authority to do so (negligent supervision/entrustment); no liability for failure to perform a gratuitous promise(nonfeasance) however, there is a duty to perform a promise if physical harm or property damage results from reliance; gratuitous undertaking no duty however undertaking can not leave individual in a worse situation
Duties owed to person outside land-no duty as to natural conditions; no duty as to artificial conditions except if the artificial condition abuts adjacent land-duty to inspect and maintain such structures in a reasonably safe condition; excavation adjoining a public road require a duty to protect highway users from straying and failing in.
Undiscovered – no duty; discovered – known or anticipated 1) D must use due care in affirmative actions if he knows that trespasser is present 2) If D knows that trespassers are frequent on his land, he must post warning s of known danger
(A Professor You Understand) Artificial condition creating an unreasonable risk of harm; Possessor of land knew or should have known that children are likely to trespass 3) children unable to recognize danger because of their youth 4) Utility of maintaining the condition v the burden of eliminating the risk (children need not have been attracted onto the land by the dangerous condition
Licensees are those entering with permission but not for the purpose for which the property is maintained (social guests, fire fighters, etc); ordinary care require that D must warn of known danger or make safe
Invitess are those entering with permission for the purpose of which the land is maintained. A public invitee enter the land for the purpose for which the land was held open to the public; business invites enter land primarily for business dealings with occupier; ordinary care and D must make reasonable inspection for dangerous conditions and must warn of all danger of which D knows or could have discovered by a reasonable inspection and make safe for protection or invitees who enter
Common law landlord owes no duty to person coming onto land with the consent of the lessee exception: latent defects known to lessor; duty to warn or repair conditions dangerous to persons outside the premises; same duty as invitees if land leased for admission to public; areas retained in lessor’s control duty to safeguard against crime; if lessor covenants to repair must do so with due care
Did D breach a duty through an act/omission exposing others to an unreasonable risk of harm? must prove actually happened and must show that defendant acted unreasonably
The thing speaks for itself/Accident does not normally occur in the absence of negligence; source of negligence must be within the scope of duty owed by D to P instrumentality which caused P’s injury must have been in D’s exclusive control at the time of the injury; P must not have contributed to his own injury; effect of establishing – majority= inference of negligence; minority= rebuttable presumption; minority =disappearing presumption
Actual cause which is the cause in fact; But for (defendant’s act). Take away D act if the injury still occurs then defendant’s act is not the (but for); Concurrent- Use when separate negligence acts concur both D’s are liable but a concurrent cause may be non tortuous; Joint Tortfeasors- several defendants jointly engaged in negligent conduct, each defendant is liable even though only one actually inflicted injury; Successive Tortfeasors – defendant acting entirely independent but whose act have caused successive impacts to P resulting in a single indivisiable injury to P-tortfeasor must attempt to disprove potential responsibility
Proximate Causation
Who should bear the risk of loss with a defendant who has been negligent and who has actually caused damage to the plaintiff?
1) direct causation
2) indirect causation
Direct causation
(domino theory) is where the acts of the defendant have caused the damage to the plaintiff without an intervening cause. Exception Thin Skulled Plaintiff Rule (Egg shell plaintiff)
Indirect causation
The damage in question is caused by the intervening act of a third person, animal, or an act of God
What are the two types of intervening causes?
1) dependent
2) independent
Dependent intervening causes (4)
1) Rescue forces
2) reaction forces
3) checking forces
4) escape forces
Indenpendent intervening causes?
Abnormal response to stimulus created by D's negligence.
1) foreseeable- the fact that the intervening force was not reasonable foreseeable does not excuse D from liability as long as the result was foreseeable
2) Unforeseeable-SUPERSEDING CAUSE-criminal acts;acts of third party abnormal rescue
Cardozo views liability in?
Andrews views liability in?
Cardozo- views liability in the form of duty (D argument)

Andrews- views it as one of causation (P argument)
General Damages
Past, present, future pain and suffering
Special Damages
Past, present, future economic losses, medical bills, loss of wage profit- No = pure economic injury
Punitive Damagese
No recovery in negligence action (actual malice)
Loss of Consortium
Majority- requires loss of companionship and intercourse between husband and wife for a definite period of time.
Minority - extends recovery to parent/child relationship
Avoidable consequence rule
P must act reasonable to mitigate damages
Collateral source rule
D may not show at trial that P received financial aid from other sources to help meet any expenses caused by D's negligence
Joint and Several Liability
Where two or more negligent persons combine inflict an indivisible injury on P, or if two or more persons act in concert to inflict a divisible or indivisible injury on P each is liable for P for the entire damage incurred
Each joint tortfeasor is liable to his own join tortfeasors for his proportionate share and if one tortfeasor pays the whole judgment he has a cause of action for contribution against his fellow joint tortfeasors.
One secondarily liable for entitled to indemnification against defendant primarily responsible
Recovery of full payment(by settlement or judgment) from one joint tortfeasor prevents further recovery from any other joint tortfeasor.
Common law held that a release against one joint tortfeasor was a release against all.
Restatement - ...does not discharge others liability for the same harm unless it is agreed that it will discharge them
Negligent infliction of emotional distress
Duty owed not to subject others to foreseeable risk of physical injury (impact/threat) that may foreseeably reult in emotional distress.

Physical manifestation of the emotional injury is required
exception: erroneous telegram;mishandled corpses
By stander recovery
Majority- a person in the zone of danager is not a bystander and can recover for emotional distress at seeing another person in the zone of danger injured.

Minority-Proximate cause test (D found not liable to child, not liable to parent)
California (Dillon)
Family involved recovery if:
1) close relationship between the parties
2) sensory and contemporaneous observance requiring some shock and time important but not controlling
3) physical proximity
4) defendant aware of presence of third party
California (Dillon) 1989
1) closely related to injury victim
2) is present at the scenew of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim
3) as a result suffers serious emotional distress, a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances
Prenatal injuries
Some courts impose a duty toward any fetus that was viable at the time of injury
Wrongful birth
permits recovery of actual losses only, medicals
Contributory Negligence
1) Conduct on the part of the plaintiff
2) which is contributing cuase to his/her own injury
3) to which he/she is required to conform
4) for his/her own protection
5) complete bar to recovery
6) plaintiff owes a duty to himself
Comparative negligence
1) compares the negligence of plaintiff and defendant
2) solely in terms of blameworthiness
3) and apportions the damages accordingly
Pure - P will recover some damages no matter how great the negligence
Partial- P will be denied recovery where his own negligence equals or exceeds D
Last Clear Chance
1) P's contributory negligence
2) will not be considered a bar to his action
3) if defendant had the last clear chance to avoid the injury
a) helpless peril
b) Inattentive peril
c) Antecedent lack of preparatin caes (failure to inspect brakes)
Assumption of the risk
1) Plaintiff assumes the risk
2) will be considered a bar to his action when he/she knowledge, comprehension, appreciate of a danger
3)and voluntarily chooses to encounter it
4) rescuers do not assume the risk
5) overcome = P = contributorily negligent
Survival Statute
C/L= no COA
Modernly= most courts allow a COA
Wrongful Dealth Statute
C/L= no COA
Modernly= a cause of action has been allowed in favor of decedent's heirs and dependent parents.
Defenses - any appropriate defenses that the defendant could have raised agains the decedent may be asserted against the estate
Intra Family immunities
1) spouses generally may now sue each other for damages to property but not to personal injury.
2) parent- child may sue for injury to property and personal injury in some states
Strict Liability
Strict liability is imposed irrespective of whether anyone was at fault
Animals (Domestic)
One is not strictly liable for injuries caused by a domestic animal (dogs, cats) unless the defendant has scienter of knowledge of the dangerous propensities of the animal. One bit rule
Physical harm done - liabilty only for injuries attributable to the animal's known dangerious propensity
Wild Animals
A possessor of a wild animal is subject to liability to another for harm done by the animal to the other, his person, land or chattels, although the possessor has exercised the utmose care to confine the animial or otherwise prevent it form doing harm (non-delegable duty)
Wild Animals injuries to third parties
1) licenses and invitess may recover
2) trespassers may not generally recover. However, recovery in negligence where the landowner knows of their presence and fails to post warnings.

Strict liability reovery does not apply even to the trespassers for injuries inflicted by vicious watchdogs
Ultrahazardous (abnormally dangerous) activities
The landmark case of Ryland v. Fletcher held that a person who brings something onto the land that involves a non natural use of the land and is likely to casue substantial damage if it escape willbe strictly liable if it in fact escapes and causes harm
Ultrahazardous involves risk?
a serious harm to the persons or property of others which cannot be eliminated even due to care, which is not a matter of common usage (utility v. Risk)
Is some jurisdictions may assumption of the risk prevent recovery?
Yes. Assumption of the risk may prevent/recovery/comparative applicable to some jurisdictions
Abnormally dangerous conditions liable even if reasonable care to prevent such harm has been excerised?
Factors to consider:
1) whether the activity involves high degree of risk of harm
2) the gravity of that risk
3) whether the risk can be eliminated by the exercise of reasonable care
4) whether the activity is a matter of common usage
5) whether the activity is appropriate to the place where it is being carried on
6) the value of the activity of the community
Vicarous Liability
The master is vicariously liable for the torts of servants that occur within the course and scope of their employment
What are the special features re: vicarous liability?
1) public policy demand that employers should bear the risk of loss (look for frolic and detour)
2) the master who borrows another servant will be vicarious liable for the tors of that servant
Independent contractors - vicarious liability
General rule no liablity to employer unless:

1) inherently dangerous activities
2) non-delegable duties (maintain road in good repair maintain automobile, maintain public premises
3) one who entrusts work to an independent contractor but retains the control or any part of the work is subject to liability for physical harm to others
4) Collateral Negligence Rule - employer is only responsible for the risks which are inherent int he work, not for the collateral negligence of the independent contractor
Joint Venture (vicarious liability)
One member of a joint enterprise if vicariously liable to those outside the enterprise for the conduct of other joint enterprisers action within the scope of the enterprise
Automobile Cases (Vicarious liability)
Owner is vicariously liable for injuries resulting from the bailee's negligent operation (third party recovery)
1) Family purpose doctrine
2) Permissive use statutes
Parent/Child (Vicarious Liability)
A parent is not vicariously liable for the tortious conduct of the child at common law. However, most states by statute make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount
Products Liability (Negligence)
P will bring a cause of action against the manufactuer, unless defect is known to the retailer who is under no affirmative duty to inspect.
1) Duty- average reasonable person could foresee that the product would create a risk of harm, then the supplier was under a duty to all foreseeable users.
2) Breach- defective product failed to meet the oridinary commericial expectations of the average reasonable person
3)Three types of breach a) defect in manufacture b) defect in design, c) defect in warning
4) Causation- D was the actual cause and proximate cause of the injuries
4) Damages -limited to personal injury
5) Defenses- Contributory negligence, comparative, assumption of the risk
Express Warranty
When a commerical supplier of chattels make a respresentation of fact innocent or not on which P has relied to his damage. Defense - assumption of the risk
Implied Warranty
1)Implied warranty of merchantability - a merchant selling goods warrants that they are of average and fair quality

Implied warranty of fitness for intended use- If seller knows of buyer's intended use and buyer acting as an average reasonable person relies upon seller's "special knowledge and skills, then liability
Strict Liability
IF a defective product is placed in the stream of commerce the manufacturer will be held strictly liable in tort to all consumers-users for their injuries.
Defendant may assert as defenses assumption of the risk and misuse of product
Am act by D that constitutes a nontrespassory invasion of P's interst in the use and enjoyment of his land, causing P substantial and unreasonable harm
Private nuisance
Unreasonable interference with the possessory interest of an individual in the use of enjoyment of his land
Public Nuisance
Unreasonable interference with a right common to the general public (one must suffer an injury different in kind apart from that suffered by the general public in order to sue
Mispresentation - Intentional
A misrepresentation of an exisiting material fact made knowingly with the intent to induce P's reliance, causing P to jursifiably rely to his damage
Special Features:
1) active concealment
2) scienter is essential for deceit
3) liabilty extends to those whom D intended to induce to rely
4) Damges - benefit of the bargain, out of pocket expenses, punitive damages
Mispresentation - Negligence
A false material representation of a material fact which is made with a lack of due care intended to induce reliance to which proximately cause plaintiffs damage
Misrpresentation - Strict liability
Imposes strict liability for innocents misrepresentatin in sales or leases of land
Injuries Falsehood
Disparagement- the publication of matter derogatory to the P's title to his property, it quality, business, or personal affair,calculate to prevent others from dealing with P
Special features:
1) plead special damages (loss of customers
2) matter to be false
3) competitive privilege allowed
Interference with Contract
Words or actions by D intentionally undertaken to interfer with an existing contract of P causing his damage
Interference with prospective advantage
1) interference with an expectancy only
2) third party not to enter; preventing plaintiff from acquiring relationship
3) interference with contract; non commerical purposes
Malicious Prosecution
Initiation of a criminal proceedings against P that terminated in his favor and for which there was no probable cause and an improper purpose all to P's damage
1) reputation damage
2) emotional distress
Wrongful institution of civil Proceedings
One who takes an active part in the initiation, continuation or procurement of civil proceedings against another is subject to liability to the other for wrongful civil proceedings if:
1) no probable cause
2) terminates in favor of the person against whom it was brought
Abuse of process
Use of criminal or civil proceedings for purpose for which it was not intended, must be intentional misuse for an ulterior purpose calculated to damage P
P must prove that the matter was false and defamatory, published intentionally or negligently by D to a third person, that the third person understood the defamatory imputations applied to P and P suffered damages as a result fo the defamation
Defamation - Understood standard
1) Inducement - extrinsic facts necessary to esblish and understand defamatory meaning
2) Innuendo - meaning which results from the inducement
3) Colloquium - statement that makes no reference to P. P must establish that the person to whom the defamation was published reasonably interpreted it as referring to P
Defamation Damages - Slander (Spoken)
Special pecuinary damages actually suffered need to be proved unless (CLUB)
1) Crime
2) Loathsome disease
3) unchasity
4) Business
Defamation Damages - Libel
If statement is libel on its face specials not required and general damages are presumed
Defamation defenses
1) Consent
2) truth
3) Absolute privileges
4) Qualified privileges
5) constitutional privileges
Absolute privilege
1) judicial proceedings
2) legislative proceedings
3) executive
4) husband/wife
5) Broadcasters
Qualified privilege
1) report of public proceedings
2) fair comment
3) interest of publisher
4) interest of others
5) comon interest
6) communication to one who may act in public interest
Constitutional Privilege
1) Public officials - actual malice. Knowledge of its falsity or reckless disregard for its truth or falsity (New York Times)
2) Private figure - negligence will suffice
Appropriation of plaintiff's name and likeness
1) unjust enrichment through the theft of goodwill
2) appropriate is for D's pecuniary benefit
3) look for defendant promoting products/services
Intrusion upon seclution
1) unreasonable invasion of another's reasonable expectation of privacy-(beware of public places)
2) may include intrusion onto plaintiff's property (bug/trespas) and nonphysical intrusion (Telephone calls/binoculars)
Public disclosure of a private fact
1) highly offensive to a reasonable person and is not legitmate concern to the publice
2) disclosure must involve private facts
3) publicity essential
False light in public eye
1) unauthorized use of P's name or likeness attributing to him/her ideas which are false
2) the actor had knowledge of or acted in reckless disregard as to the falsity
3) highly offensive
4) truth is valid defense
5) damages - no requirement for specials
1) Consent
2) truth
3) newsworthiness
Compensatory damages
General damages - damages that flow naturally from the tort
Special damages (economic)
1) reasonable certainty of money amount
2) proximate cause
3) remoteness
Willful/Malicious conduct
Nominal damages
Declaration of P's right
Restitutions (gains)
1) ejectment
2) detinue/replevin
3) assumpsit
4) constructive trust
5) equitable lien
Constructive trust
1)ID of the res as belonging to P
2) trace the res
3) D has legal title to property which P receives
4) preference over all other creditors
Equitable lien
1) debt owed by D to P
2) ID res
3) trace res
4) Use to prevent unjust enrichment
5) Preference over all other creditors
Injunction (Thomas A. Edison is Pouring himself the drink)
1) Tort
2) adequacy of legal remedy
3) enforceability
4) irreparable harm
5) property rights
6) hardship (bad faith, no balance)
7) type
8) defenses (laches, unclean hands, BFP
Types of injunctions (3)
1) TRO
2) Preliminary
3) permanent
TRO - injunction
1) emergency situation
2) ex parte hearing
3) irreparable harm -pecuniary loss
4) P must post a bond
5) limited to 10 days
Preliminary - injunction
1) hearing with both parties
2) bond if TRO not granted
3) irreparable harm if TRO not granted
4) limited injunction to minimize/eliminate problem
Permanent - injunction
1) mandatory v. prohibitory
2) Balance the hardship