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241 Cards in this Set
- Front
- Back
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What is required to establish a prima facie case for intentional tort liability?
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The Plaintiff must prove:
1. Act by the defendant 2. Intent 3. Causation |
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What does causation require?
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The causation requirement will be satisfied where the conduct of defendant is a substantial factor in bringing about the injury.
*The result giving rise to liability must have been legally caused by the defendants act or something set in motion thereby. |
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What is an act by the defendant?
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Any volitional movement on defendants part.
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What are the intents for tort liability?
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1. Specific: actor intends the consequences of his conduct if his goal in acting is to bring about these consequences.
2. General: actor intends the consequences of his conduct if he knows with substantial certainty that these consequences will result. 3. Transferred: person to person and tort to tort. |
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What are the intentional torts to the person?
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1. Battery
2. Assault 3. False Imprisonment (FI) 4. Intentional Infliction of Emotional Distress (IIED) |
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What are the intentional torts to property?
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1. Trespass to Land
2. Trespass to Chattel 3. Conversion |
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What is Battery?
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An act that is intended to and does cause harmful or offensive contact to a victims person or property.
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What is the rule for transferred intent?
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Rule: Intent can be transferred from:
1. person to person 2. tort to tort (battery, assault, false imprisonement, trespass to land, trespass to chattels) |
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What is an "offensive" contact?
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It is unpermitted contact with a plaintiffs person.
*Remember: Supersensitive Plintiff |
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What is the supersentive plaintiff rule?
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Rule: Plaintiff's supersensities are irrelevant
Exception: Defendant, in fact, knew of the plaintiffs supersensitivities Summary: Treat plaintiff as an "average person" (subject to exception) |
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What constitutes a plaintiff's person?
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Do not have to actually touch plaintiff's body. Includes anything connected to plaintiff's person.
*Construe plaintiff's person very liberally. |
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What is Assault?
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An intentional act by the D creating reasonable apprehension in plaintiff of immediate harmful or offensive contact to P's person.
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What is "apprehension" for purposes of assault?
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-Must be reasonable
-Do not confuse with fear or intimidation -Apparent ability creates a reasonable apprehension. |
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Favorite bar exam fact pattern for apprehension?
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Tiny P and big D.
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Can words alone constitute assault? Why or why not?
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No. Words alone are not enough. You need words coupled with conduct.
Note: Words can also undo conduct and any reasonable apprehension.. they lack the necessary immediacy of threat. GR: a mere verbal threat can never be an assault UNLESS it is accompanied by physical conduct. |
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Can words negate the immediacy required for an action to be an assault?
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YES. Even if there is threatening physical conduct, if there are accompanying words, they can NEGATE immediacy.
Look for conditional words – “If” - “If you weren’t my best friend, I’d hit you right now” Look for words in future tense – a threat to be carried out LATER |
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What is false imprisonment?
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An intent on part of the D to confine or restrain the P to a bounded area and there is an act or omission to act on the part of the D that confines or restrains the P to a bounded area.
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What is Intentional Infliction of Emotional Distress?
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1. An act by the defendant amounting to extreme and outrageous conduct;
2. With the intent to cause the plaintiff to suffer severe or emotional distress, or recklessness as to the effect of defendant's conduct; 3. Defendants conduct actually causes the plaintiffs emotional distress; 4. Damages - severe emotional distrsss |
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What is outrageous conduct?
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The conduct must be extreme!
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Favorite ways to make normally non-outrageous conduct, outrageous.
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1. Conduct is continuous
2. The type of P - young kids, elderly persons, pregnant women, adults with super sensitivities D knows of. 3. The type of D - common carriers, innkeepers. |
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What type of damages are required for IIED?
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Actual damages are required. Physical injury is not required but clear proof of substantial/severe emotional distress is.
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What are the elements to prove trespass to land?
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1. Act of physical invasion by defendant;
2. of plaintiffs real property; 3. with the intent to bring about physical invasion; and 4. the physical invasion was legally caused by the defendants act or something set in motion thereby. |
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What is the intent/causation requirement in Bystander cases for IIED?
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1. P was present when injury occurred;
2. P was a close relative of the injured person; 3. D knew that the P was present and a close relative of the injured person. |
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Does defendant have to physically go on plaintiffs property to establish trespass?
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No. Some physical object set in motion by defendant.
ex. defendant throws rock on plaintiffs land, defendant pushes someone on plaintiffs land. |
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What are the elements for trespass to chattels?
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1. an act by the defendant of intentionally interfering with the plaintiffs right to possession in the chattel;
2. with the intent of bringing about the interference; 3. causation 4. actual damages required |
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Trespass to Chattels v. Conversion. Which to use?
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Some damage --> Trespass to Chattels
A lot of damage --> Conversion |
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Two types of damages trespass to chattels and conversion.
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Physical
Dispossession |
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What are the defenses for intentional torts?
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1. Consent
2. Self-Defense, defense of others, defense of property 3. Necessity |
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What are the steps to defense of Consent?
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1. determine if plaintiff had capacity. If not, consent is invalid. (Limited Exception: where consent is implied by law; emergencies)
2. Determine if the consent was expressly given or is to be implied. 3. Determine if the defendant stayed within the boundaries of any consent given. If not, the privilege may be lost. |
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If there is express consent, what should you look for?
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1. Mistake
2. Fraud 3. Coercion If sufficient, these facts can undo consent. |
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How does implied consent arise?
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Apparent:
1. Custom/usage 2. Plaintiffs conduct Implied by Law: 1. Emergencies |
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What are the defense privileges?
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1. Self defense
2. Defense of others 3. Defense of property |
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What is the analysis for the defense privileges?
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1. Determine if the timing requirement has been satisfied.
2. Determine if the defense step has been satisfied. 3. Determine if the defendant has used the proper amount of force to defend. |
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What is the timing requirement test?
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The tort defended against is:
1. now occurring, or 2. just about to occur *If the tort has already been committed there is no defense. *Note Hot Pursuit Doctrine |
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What is the hot pursuit doctrine?
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If one is in "hot pursuit" of another who has wrongfully taken his chattel, the tort is regarded as still occurring. Thus, the timing test is satisfied.
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What is the defense test for self-defense/defense of others/defense of property?
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One need only have a reasonable belief that a tort is being committed.
*Duty to retreat rule *Modern trend |
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What is the duty to retreat rule for the self-defense/defense of others/defense of property?
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GR: There is no duty to retreat before using self-defense.
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What is the modern trend for the duty to retreat in respect to self-defense/defense of others/defense of property?
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Duty to retreat before using serious force if one:
1. can do so safely; and 2. is not in his/her home |
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What is the proper force rule for self-defense/defense of others/defense of property?
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1. For self-defense and defense of others one may use reasonable force (including even deadly force)
2. For defense of property one may use reasonable force NEVER to include force calculated to bring about serious bodily injury. |
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Bar Exam Tip: "In your own home" fact pattern. What kind of analysis for force?
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This would be a self-defense/defense of others fact pattern. It is NOT a defense of property.
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What are the steps for a necessity analysis?
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1. Make sure the tort defended against is a property tort (most likely it is a trespass to land);
2. Determine if it is a public or private necessity case; |
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Explain "public" necessity.
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This is for the benefit of many and is an absolute, unlimited privilege. No liability.
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Explain "private" necessity.
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This is for the benefit of a limited number and is a limited privilege and the defendant will be liable for actual damage caused.
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Bar Exam Tip: Which trumps which?
Necessity v. defense of property |
Necessity prevails over defense of property.
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What are the requirements to establish the prima facie case for defamation?
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1. Defamatory statement about this plaintiff;
2. Publication; 3. Injury to plaintiffs reputation Add these if First Am. applies: 4. Falsity 5. Fault |
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What is a defamatory statement?
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This requires a defamatory statement of fact. Mere name-calling is not enough.
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When do you use the interpretation process in defamation?
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Used where the statement is:
1. not clearly defamatory on its face and/or; 2. does not clearly refer to plaintiff on its face. |
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If statement is not defamatory on its face, what must the plaintiff plead?
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Plaintiff must please extrinsic facts (inducement) and establish the defamatory meaning from them by innuendo.
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If the statement does not refer to the plaintiff on its face, what must the plaintiff establish?
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Plaintiff must establish colloquium to show that he was the one intended.
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What are the requirements for publication?
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1. there must be communication to a third-person;
2. the communication may be either intentionally or negligently made; 3. the third-person must be capable of understanding the defamatory content. |
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What are the requirements to show injury to plaintiffs reputation?
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1. injury is presumed for every libel and slander per se;
2. injury is not presumed for slander not per se. (in this case plaintiff proves special damages (money damages) to show injury to reputation) |
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What are the slander per se categories?
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1. business or profession
2. crime involving moral turpitude 3. loathsome disease 4. imputing unchastity to woman |
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What are the defenses to defamation?
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1. consent
2. truth 3. absolute and qualified privileges |
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What is the purpose of absolute and qualified privileges?
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This is given where from a societal standpoint we want to encourage someone to speak out without worrying about defamation liability.
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What is an absolute privilege and can it be lost?
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Cannot be lost.
1. communications between spouses; 2. the three govt. branches: executive, legislative, judicial |
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Bar exam tip: The judicial branch is the favorite. Why?
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Anything said in the course of litigation that is reasonably related to it will be absolutely privileged. Absolute is absolute! Let the defendant go!
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When are qualified privileges given and can they be lost?
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-Can be lost if abused.
-There is no definitive test as to when they are given. If you feel that we would like to encourage this type of communication, give the defendant a qualified privilege. ex: reference letter by former professor or employer. |
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When is the First Am. at issue? If the First Am. applies what do we do?
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When the matter is of public concern.
We add two prima facie requirements, and subtract one defense. |
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What must plaintiff prove for falsity?
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Plaintiff must prove that the statement was false (BOP as to truth is shifted from the D to P).
So truth is no longer a defense! |
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What must plaintiff prove for fault?
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Plaintiff must prove that the defendant was at fault.
1. intentional 2. reckless 3. negligent |
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If the plaintiff is a public figure what must they prove?
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He/she must prove intentional or reckless tortious conduct.
NY Times v. Sullivan "Malice" Test - The statement was made either knowing it was false, or with reckless disregard as to its truth or falsity. |
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If the plaintiff is a private person what must they prove?
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He/she must only prove negligent tortious conduct. However, if P can prove malice, they would be allowed to get presumed and punitive damages and not have to prove actual damages.
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What are the four branches for invasion to right of privacy?
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1. Appropriation by D of P's name or picture for D's commerical advantage;
2. Intrusion by D into P's privacy or seclusion; 3. Publication of facts placing P in false light; 4. Publication of private facts about P |
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What is required for appropriation by D of P's name or picture for D's commerical advantage.
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Unauthorized use by D of P's picture or name in for D's commercial advantage.
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Is the D's conduct objectionable to a reasonable person a requirement for appropriation by D of P's name or picture for D's commerical advantage?
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No. It is required in:
2. Intrusion by D into P's privacy or seclusion; 3. Publication of facts placing P in false light; 4. Publication of private facts about P |
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What is required for intrusion by D into P's privacy or seclusion?
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1. Act of prying or intruding on the seclusion of the P by the D;
2. such intrusion would be objectionable to a reasonable person; 3. the thing to which there is an intrusion is "private" |
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How is commercial advatage construed?
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"Commerical advatage" is limited to the promotion of goods or services.
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Compare the publication in defamation to teh publication in privacy actions?
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In invasion of privacy action it requires public disclosure (wide dissemination), whereas in defamation communication to even one person is enough.
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What is required for publication of facts placing P in false light?
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1. publication of facts about P by D placing P in a false light in the public eye;
2. the false light is something that would be objectionable to a reasonble person under the circumstances; 3. malice on part of the D where the published matter is in the public interest |
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What is false light?
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A fact will be deemed to present P in a false light if it attributes to him:
1. views that he does not hold; or 2. actions that he doe not take. |
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What is required for publication of private facts about plaintiff?
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1. publication or public disclosure by D of private information about the P; and
2. the matter made public is such that a reasonable person would object to having it made public. *Note: there is no defamation or "false light" because the statement is true. |
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What are the defenses to invasion of privacy?
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1. Consent
2. Defamation privileges (absolute and qualified) |
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What is Libel?
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A defamatory statement recorded in writing or some other permenant form. (radio or t.v.)
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Damages Rule for Libel?
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General damages are presumed by law for all libels; special damages need not be established.
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What is Slander?
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Spoken defamation.
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Damages Rule for Slander?
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Special damages are required.
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What are the two types of misrepresentation?
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1. Intentional
2. Negligent |
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What are the requirements for intentional misrepresentation?
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1. Misrepresentation by the D
2. Scienter 3. An intent to induce P's reliance on the misrepresentation 4. Causation (actual reliance) 5. Justifiable reliance by P 6. Damages |
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What is Libel?
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A defamatory statement recorded in writing or some other permenant form. (radio or t.v.)
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What is misrepresentation?
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1. Misstatement of material past or present fact, not an opinion;
2. silence is not enough, one must affirmatively misspeak. |
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When is silence misrepresentation? Or when is there a duty to disclose?
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1. D stands in a fidiciary relationship to P as would call for a duty of disclosure;
2. D selling real property knows that P is unaware of material info about transaction; 3. D's prior statements have mislead P, then D will be under a duty to inform P of true facts. |
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Damages Rule for Libel?
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General damages are presumed by law for all libels; special damages need not be established.
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What is scienter? What is the test?
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Scienter = malice
The Test: the statement was made either (i) knowing it was false, or (ii) with reckless disregard as to its truth or falsity. |
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What is justifiable reliance?
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There is no duty to investigate to show reliance is justifiable. Reliance on fact is almost always justified, reliance on opinion usually not justifiable.
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What is Libel?
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A defamatory statement recorded in writing or some other permenant form. (radio or t.v.)
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What is misrepresentation?
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1. Misstatement of material past or present fact, not an opinion;
2. silence is not enough, one must affirmatively misspeak. |
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Damages Rule for Libel?
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General damages are presumed by law for all libels; special damages need not be established.
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What is Slander?
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Spoken defamation.
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When is silence misrepresentation? Or when is there a duty to disclose?
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1. D stands in a fidiciary relationship to P as would call for a duty of disclosure;
2. D selling real property knows that P is unaware of material info about transaction; 3. D's prior statements have mislead P, then D will be under a duty to inform P of true facts. |
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What is Slander?
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Spoken defamation.
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Damages Rule for Slander?
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Special damages are required.
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What are the two types of misrepresentation?
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1. Intentional
2. Negligent |
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What are the requirements for intentional misrepresentation?
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1. Misrepresentation by the D
2. Scienter 3. An intent to induce P's reliance on the misrepresentation 4. Causation (actual reliance) 5. Justifiable reliance by P 6. Damages |
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Damages Rule for Slander?
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Special damages are required.
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What is scienter? What is the test?
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Scienter = malice
The Test: the statement was made either (i) knowing it was false, or (ii) with reckless disregard as to its truth or falsity. |
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What are the two types of misrepresentation?
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1. Intentional
2. Negligent |
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What is justifiable reliance?
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There is no duty to investigate to show reliance is justifiable. Reliance on fact is almost always justified, reliance on opinion usually not justifiable.
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What are the requirements for intentional misrepresentation?
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1. Misrepresentation by the D
2. Scienter 3. An intent to induce P's reliance on the misrepresentation 4. Causation (actual reliance) 5. Justifiable reliance by P 6. Damages |
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What is scienter? What is the test?
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Scienter = malice
The Test: the statement was made either (i) knowing it was false, or (ii) with reckless disregard as to its truth or falsity. |
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What is justifiable reliance?
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There is no duty to investigate to show reliance is justifiable. Reliance on fact is almost always justified, reliance on opinion usually not justifiable.
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What is misrepresentation?
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1. Misstatement of material past or present fact, not an opinion;
2. silence is not enough, one must affirmatively misspeak. |
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What is required for negligent misrepresentation?
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1. misrepresentation by D in a business or professional capacity;
2. breach of duty toward particular plaintiff; 3. causation; 4. justifiable reliance by plaintiff; 5. damages |
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When is silence misrepresentation? Or when is there a duty to disclose?
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1. D stands in a fidiciary relationship to P as would call for a duty of disclosure;
2. D selling real property knows that P is unaware of material info about transaction; 3. D's prior statements have mislead P, then D will be under a duty to inform P of true facts. |
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What elements are required to prove the prima facie case for interference with business relations?
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1. Valid relationship (existing or prespective)between P and a third person;
2. D's knowledge of relationship; 3. Intentional interference; 4. Damage |
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What are the defenses to interference with business relations?
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1. Privileges-the existence of a privilege is a question of fact:
*D's persuasion conduct *Relationship between parties |
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Explain the privilege defense for relationship between parties.
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1. P and D: Are they competitors? If so, there's a competitors privilege to cover interferences with prospective relationships
2. D and 3rd Person: Are they close relatives? Does the D have a financial interest in 3rd person? |
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Important Bar Exam Tip for Interference with Business Relations
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Is is much easier for P to win if the interference if with an existing relationship
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What are the elements for a prima facie case of negligence?
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1. duty
2. breach 3. causation 4. damage |
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(Negligence)
What is the core part of the duty analysis? |
1. A foreseeable plaintiff
2. A standard of care |
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Are foreseeable plaintiff's owed a duty of care?
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Yes. Duties of care are only owed to foreseeable plaintiffs.
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Bar Exam Observation for Foreseeable Plaintiff
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On the bar exam, the plaintiff will almost always be foreseeable
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What is the exception to the forseeable plaintiff fact pattern?
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Unforeseeable plaintiff fact pattern-negligent conduct directed towards clearly foreseeable P ultimately injures someone else.
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Majority Rule for Unforeseeable plaintiff
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Cordozo: Look at P2 and see if they were in the foreseeable zone of danger
If Yes --> foreseeable If No --> unforeseeable |
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What are the two steps to take when analyzing the standard of care in negligence?
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1. determine what standard applies
2. determine what the standard is |
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(Negligence)
What is the reasonable person standard? |
This is an objective test standard
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What is the exception to the reasonable person standard?
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D's physical characteristics will be taken into account
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(Negligence)
What is the children standard? |
Child of like age, intelligencem and experience.
Children under 4 are deemed incapable of negligence, but are liable for intentional torts. |
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(Negligence)
What is the exception to the children standard? |
Where the child is engaged in an adult activity, the reasonable person standard applies.
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(Negligence)
What is the professional standard? |
A reasonable professional in the same or similar communities. We take the expertise of specialists into account.
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(Negligence)
What is the common carrier and innkeepers standard? |
They will be held liable for even slight negligence.
Tip: Injured P in car must prove common negligence, whereas injured P in bus can prove slight negligence. |
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(Negligence)
What are the steps for the owner-occupier standard |
1. Make sure the D is an owner-occupier or in "privity" with one;
2. Determine if the injury occurred on or off the land; 3. Assuming injury is on the land |
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What are some examples of privity?
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Family members, employees, etc.
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"Off-Land Injury Trick"
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Anytime you see an alternative which assigns a status to the injured party plaintiff, ex. trespasser -- discard it because the injury has occurred off the land.
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(Negligence - O/O Standard)
What is the threshold question when we assume the injury occurred on the land. |
Determine if the P is an undiscovered trespasser. If so, there is no duty owing to him/her (hence, no standard of care). This means they always lose! And your analysis is finished.
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(Negligence - O/O Standard)
What is the inquiry if you have some other type of P, such as discovered trespasser/licensee/invitee? |
Determine what caused the injury. Was it an activity or a dangerous condition?
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Define activity for purposes of Negligence - O/O Standard.
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anything your doing on the land, ex. running a machine, waiting on tables, playing baseball.
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Define dangerous condition for purposes of Negligence - O/O Standard.
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Ex. the hole in the groundm the defect in the building wall.
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What is the "Activity" Standard?
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This is an ordinary negligence case and plaintiff's status is irrelevant. The standard is the "reasonable person" standard.
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What is the "dangerous condition" standard?
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Plaintiff's status is relevant because the o/o is responsible for different types of dangerous conditions depending on the type of plaintiff.
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What is the definition of Licensee?
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A licensee is one who enters on the land with the landowner's permission, express or implied, for her own purpose or business rather than for the landowner's benefit.
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What is the duty owed to a licensee?
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The owner-occupier has a duty to warn the licensee of a dangerous condition known to the owner-occupier that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover.
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Does the o/o have a duty to inspect the premises for the licensee?
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No. An o/o has no duty to a licensee to inspect for defects nor to repair known defects.
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What is the definition of Invitee?
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An invitee is a person who enters onto the premises in response to an express or implied invitation of the landowner.
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What are the two classes of invitees?
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1. Those who enter as members of the public for a purpose for which the land is held open to the public, ex. museums, churches, airports, etc.
2. Those who enter for a purpose connected with the business or other interests of the landowner or occupier, ex: store customers, employees, persons making deliveries. |
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What is the duty owed to an invitee?
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The landowner owes an invitee a general duty to use reasonable and oridinary care in keeping the property reasonably safe for the benefit of the invitee.
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What is the test for statutory standard to apply?
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1. P must fall within protected class;
2. Statute must be designed to prevent this kind of harm. |
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Is there an affirmative duty to act?
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No
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What are the exceptions to no duty to affimatively act?
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1. Special relationship between parties;
2. Duty to control third persons; 3. Assumption of duty to act by acting; 4. Plaintiff's peril due to defendant's negligence |
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What is a breach?
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When the D's conduct falls short of that level required by the applicable standard of careowed to the plaintiff, she has breached her duty.
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what are the two steps to proof of breach?
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1. What in fact happened;
2. From these facts the D acted unreasonably |
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What is res ipsa loquitur?
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Means: "the thing speaks for itself" One is presumed to be negligent if he had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened.
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How do you know when res ipsa is at issue?
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The fact pattern will indicate that the plaintiff does not have enough hard evidence to establish negligent conduct on the defendant's part.
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What is the "probability inference" test.
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1. inference of negligence;
2. negligence attributable to defendant; 3. plaintiff not contributority negligent |
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If res ipsa applies, what is NOT the result?
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The plaintiff wins
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If res ipsa applies what is the result?
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The plaintiff's case will survive a motion for a directed verdict and will go to the jury with an inference of negligence. The jury will then decide whether to accept or reject the inference.
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What are the two types of causation?
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1. actual (causation in fact)
2. proximate (legal causation) |
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What is actual causation?
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Did the defendant's negligent conduct actually cause the injury?
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What are the three tests for actual causation?
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1. "But For" Test
2. "Substantial Factor" Test |
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What is the "But For" Test?
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Question: But for defendant's negligent conduct, would this injury have occurred?
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What happens if you ask the "But For" test question and the response is negative for the plaintiff?
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Almost always dismiss the case in defendant's favor. No causation.
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What is the "Substantial Factor" Test?
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Defendant's conduct was a substantial factor in causing the injury.
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What is the "Alternative Causes" Test?
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Two or more negligent defendants, but uncertainty as to which caused injury.
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What happens if there is actual causation?
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Then go to step 2, proximate causation.
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What is the property damage rule?
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Take the plaintiffs property as you find it.
-there is a duty to mitigate -collateral source rule: dmgs not reduced b/c of pymts from other sources, ex. health ins. |
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What are the defenses to negligence?
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1. contributory negligence
2. comparative negligence 3. assumption of the risk |
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What are the two types of contributory negligence fact patterns?
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1. knowing contributory negl./implied assumption of risk;
2. unknowing contributory negl. |
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What is the two part test for implied assumption of risk?
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1. One knew of the risk;
2. One voluntarily proceeded in the face of it. |
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Bar Exam Trick: To recognize the fact pattern where both contributory negl. and implied assumption of risk are available.
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It is where the plaintiff:
1. unreasonably 2. voluntarily takes on a 3. known risk |
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What are the exceptions to implied assumption of risk?
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1. no other viable alternative
2. emergency (p's or another's) |
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Effect of Contributory Negligence
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Contrib. State: Any contrin negl. completely bars recovery
Compar. State: contrib negl reduced the recovery in a pure compar negl state. |
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What is the last clear chance doctrine?
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Contrib negl P successfully contends that after his/her negl. D still had the last clear chance to avoid the accident and, thus, contrib negl should be disregarded a defense. This doctrine is not a defense!!!
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In strict liability what is the negligence standard of care replaced with?
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Absolute duty to make safe
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Who can you successfully hold liable for products liabilty?
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Anyone as long as you can establish two requirements.
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What are the two requirements for a products liability case?
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1. the defect causing the injury must have existed at the time the product left that D's control;
2. P needs a workable theory (negligence, strict liability, warranty liability) |
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What is the rule for the first requirement of products liability?
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Rule: there is an inference the defect existed when it left any given d's control since that time the product has moved through normal channels of distribution.
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What is the negligence theory for products liability?
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Focus is on the D's conduct. negligent design
negligent manufacture negligent warning negligent inspection *Res Ipsa is available |
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Who can be a plaintiff under products liability negligence theory and strict liability theory?
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Anyone who is within the foreseeable zone of risk including bystanders.
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Who can be a defendant in products liability negligence theory?
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Manufacturers: Almost Always
Retailers/Wholesalers? Almost Never |
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What is the strict liability test under products liability?
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Focus is not on defendants conduct.
Test: an "unreasonably dangerous condition" |
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Who can be a defendant in a products liability SL Theory?
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Everyone
Note: indemnification applies |
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What is the warranty liability theory?
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SL, policy-based, D's conduct irrelevant
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Warnings
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Adequate warnings will generally insulate from liability
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What is the feasible alternatives approach?
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If one could have cured a defect for a minor amount of money relative to the risk involved he/she should have done it and a warning will not save them.
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What is a private nuisance?
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Substantial, unreasonable interferences with one's use and enjoyment of land.
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What is a public nuisance?
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Act which unreasonably interferes with health, safety or property rights of the community.
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Who is the proper plaintiff for private nuisance suits?
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Plaintiff must have either possession or the right to immediate possession.
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Who is the proper plaintiff for public nuisance suits?
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Private person may recover only if he/she has suffered unique damage not suffered by the public.
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What is the standard for nuisance suits?
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The conduct must be objectionable to an average person. In short, it's an objective test.
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What is vicarious liability?
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Liability for another's tort
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What is the general rule for respondeat superior?
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Rule: Employers are liable for torts of employees committed within the scope of employment.
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Under respondeat superior intentional torts are not within the scope of employment. What are the exceptions to this.
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1. force is authorized
2. friction is generated by this type of employment 3. employee is trying to further employer's business |
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What is the general rule for automobile owners/drivers?
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Automobile owners are not liable for the tort of other drivers.
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What are the exceptions to the general rule for automobile owners/drivers?
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1. family car doctrine: household members using with permission;
2. permissive use doctrine: anyone using with permission |
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What is a private nuisance?
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Substantial, unreasonable interferences with one's use and enjoyment of land.
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What is a private nuisance?
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Substantial, unreasonable interferences with one's use and enjoyment of land.
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What is a public nuisance?
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Act which unreasonably interferes with health, safety or property rights of the community.
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What is a public nuisance?
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Act which unreasonably interferes with health, safety or property rights of the community.
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Who is the proper plaintiff for private nuisance suits?
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Plaintiff must have either possession or the right to immediate possession.
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Who is the proper plaintiff for public nuisance suits?
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Private person may recover only if he/she has suffered unique damage not suffered by the public.
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Who is the proper plaintiff for private nuisance suits?
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Plaintiff must have either possession or the right to immediate possession.
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What is the standard for nuisance suits?
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The conduct must be objectionable to an average person. In short, it's an objective test.
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Who is the proper plaintiff for public nuisance suits?
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Private person may recover only if he/she has suffered unique damage not suffered by the public.
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What is the standard for nuisance suits?
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The conduct must be objectionable to an average person. In short, it's an objective test.
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What is vicarious liability?
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Liability for another's tort
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What is vicarious liability?
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Liability for another's tort
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What is the general rule for respondeat superior?
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Rule: Employers are liable for torts of employees committed within the scope of employment.
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What is the general rule for respondeat superior?
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Rule: Employers are liable for torts of employees committed within the scope of employment.
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Under respondeat superior intentional torts are not within the scope of employment. What are the exceptions to this.
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1. force is authorized
2. friction is generated by this type of employment 3. employee is trying to further employer's business |
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Under respondeat superior intentional torts are not within the scope of employment. What are the exceptions to this.
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1. force is authorized
2. friction is generated by this type of employment 3. employee is trying to further employer's business |
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What is the general rule for automobile owners/drivers?
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Automobile owners are not liable for the tort of other drivers.
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What is the general rule for automobile owners/drivers?
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Automobile owners are not liable for the tort of other drivers.
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What are the exceptions to the general rule for automobile owners/drivers?
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1. family car doctrine: household members using with permission;
2. permissive use doctrine: anyone using with permission |
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What is a private nuisance?
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Substantial, unreasonable interferences with one's use and enjoyment of land.
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Who is the proper plaintiff for private nuisance suits?
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Plaintiff must have either possession or the right to immediate possession.
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Who is the proper plaintiff for public nuisance suits?
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Private person may recover only if he/she has suffered unique damage not suffered by the public.
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What is the standard for nuisance suits?
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The conduct must be objectionable to an average person. In short, it's an objective test.
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Who is the proper plaintiff for private nuisance suits?
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Plaintiff must have either possession or the right to immediate possession.
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Who is the proper plaintiff for public nuisance suits?
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Private person may recover only if he/she has suffered unique damage not suffered by the public.
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What is vicarious liability?
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Liability for another's tort
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What is the general rule for respondeat superior?
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Rule: Employers are liable for torts of employees committed within the scope of employment.
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What is vicarious liability?
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Liability for another's tort
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What is a private nuisance?
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Substantial, unreasonable interferences with one's use and enjoyment of land.
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Under respondeat superior intentional torts are not within the scope of employment. What are the exceptions to this.
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1. force is authorized
2. friction is generated by this type of employment 3. employee is trying to further employer's business |
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What is the general rule for automobile owners/drivers?
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Automobile owners are not liable for the tort of other drivers.
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What are the exceptions to the general rule for automobile owners/drivers?
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1. family car doctrine: household members using with permission;
2. permissive use doctrine: anyone using with permission |
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What is the general rule for automobile owners/drivers?
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Automobile owners are not liable for the tort of other drivers.
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What is the general rule for respondeat superior?
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Rule: Employers are liable for torts of employees committed within the scope of employment.
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Who is the proper plaintiff for public nuisance suits?
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Private person may recover only if he/she has suffered unique damage not suffered by the public.
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Under respondeat superior intentional torts are not within the scope of employment. What are the exceptions to this.
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1. force is authorized
2. friction is generated by this type of employment 3. employee is trying to further employer's business |
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What is the standard for nuisance suits?
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The conduct must be objectionable to an average person. In short, it's an objective test.
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Under respondeat superior intentional torts are not within the scope of employment. What are the exceptions to this.
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1. force is authorized
2. friction is generated by this type of employment 3. employee is trying to further employer's business |
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What are the exceptions to the general rule for automobile owners/drivers?
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1. family car doctrine: household members using with permission;
2. permissive use doctrine: anyone using with permission |
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What is the general rule for automobile owners/drivers?
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Automobile owners are not liable for the tort of other drivers.
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What is vicarious liability?
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Liability for another's tort
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What is the general rule for automobile owners/drivers?
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Automobile owners are not liable for the tort of other drivers.
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What is the general rule for respondeat superior?
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Rule: Employers are liable for torts of employees committed within the scope of employment.
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Under respondeat superior intentional torts are not within the scope of employment. What are the exceptions to this.
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1. force is authorized
2. friction is generated by this type of employment 3. employee is trying to further employer's business |
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What is the general rule for automobile owners/drivers?
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Automobile owners are not liable for the tort of other drivers.
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What is the general rule for liability of parents for childrens torts?
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GR: parents are not liable for the torts of their children
Exception: intentional torts up to limited dollar amount |
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What is the rule for release?
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A release does not release other tortfeasors unless it expressly does so.
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What is the rule for joint & several liability?
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Where multiple acts cause indivisible injury, each defendant will be potentially liable for the entire judgment amount.
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When is contribution and indemnification used?
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It is used where a defendant, b/c of joint and several liability, has paid more than his/her fair share of the judgment and wants the other defendants to contribute or indemnify.
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What is the rule for contribution?
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Where the defendants are more or less equally responsible, they will share the judgment amount equally.
1) D from whom contribution is sought must also be liable (ex: cannot have an independant defense) 2) N/A to intentional torts |
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What is the rule for indemnification?
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Can get everything back from other defendants
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What are the grounds for indemnification?
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1. The other D is a lot more responsible;
2. Vicarious liability ; 3. Strict liability in product cases |
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What is the rule for comparative contribution?
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Defendants will split up judgment according to relative fault.
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What type of recoveries are survival and wrongful death?
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These are derivative recoveries. This means you will stand in no better position than decedent would have stood in had he/she lived.
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What are the tort immunities?
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1. Intra Family (OUT)
2. Charitable (OUT) 3. Govt. (Mostly out) |
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What is the rule for govt. v. proprietary functions?
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Immunity is available for govt. functions; it's not available for proprietary functions.
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How do you determine whether a function is proprietary?
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Ask: Would a private business normally perform this function? If Yes --> it's proprietary, therefore no immunity.
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What is the Negligence test.
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Defendant must fail to exercise such acare as a reasonable person in his position would have exercised; his conduct must be a breach of the duty to prevent the foreseeable risk of harm to anyone in plaintiff's position; and this breach must cause plaintiff's damages.
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