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131 Cards in this Set
- Front
- Back
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What are the types of Comparative Negligence?
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pure
modified (not as great as) modified (not greater than) slight/gross |
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What is pure comparative negligence?
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the plaintiff's damages are reduced in proportion to percentage of negligence attributed to him, no matter what that percentage
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What is modified (not as great as) comparative negligence?
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plaintiff's damages are reduced by percentage of fault attributable to him, as long as "not as great as" defendant fault
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What is modified (not greater than) comparative negligence?
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plaintiff damages reduced by percentage of negligence attributed to him, as long as "not greater than" defendant fault
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What is Assumption of the Risk?
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defense where plaintiff voluntarily assumes the risk of harm arising from the negligent or reckless conduct of the defendant and cannot recover from harm
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What is express assumption of the risk?
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the defendant no longer has a duty if the risk is assumed, i.e. exculpatory contract clauses
-unambiguous terms of contract? -contract violates public policy? |
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What is implied assumption of the risk?
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where plaintiff konws and appreciates the magnitude of the risk and voluntarily goes forward in the face of it
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Distinguish between a Statute of Limitations and a Statute of Repose.
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L - limits time during which an action can be brought
R - limits time during which an action can arise |
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What are Immunities?
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does not deny tort, only avoids liability in all circumstances due to the status or position of the defendant
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What is non-feasance?
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the omission or failure to perform an act or obligation
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What is misfeasance?
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where the performance on a lawful act occurs in an unlawful manner
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What is the liability to 3rd persons under privity of contract?
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gratuitously or for consideration undertaking to render services to another for protection IF
- failure increases risk of harm - perform duty owed - harm suffered from reliance on the performance |
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Where is there an affirmative duty to act?
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no general duty to act
- common carriers - place of public accomodation - employer - occupier/entrant to land - family members - statutory provision |
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What are factors for determining whether duty of care exists?
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- foreseeability
- opportunity to exercise reasonable care - comparative interests - relationship between parties - public policy and fairness |
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What recovery may occur from Pure Economic Loss?
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no recovery where there is no interest in property, and only a pecuniary loss
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Negligent Infliction of Emotional Distress
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- a definite physical injury from the emotional distress must occur
- burden of proof is on plaintiff - foreseeability test limitations based on relationship, proximity to event, and amount of distress |
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What is the liability of a landowner to individuals outside the premises of property?
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no duty to protect from natural growth
where landowner alters condition of land, must exercise reasonable care for protection of others |
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What is the liability for landowners to trespassers?
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trespasser assumes the risk of harm unless
- trespasser presence known - wilful landowner conduct - frequent trespassers in area - tolerated intruders |
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What is a licensee?
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privileged to enter and remain on land only by virtue of possessor's consent and for licensee's own purposes
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What is an invitee?
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may be public or business
P - invited to enter and remain on land as member of public for purpose for which land held open B - invited to enter and remain on land for purpose connected with business dealings with possessor *changes to trepasser when stays beyond reasonable time for purpose or permission of owner or enters area not included in invitation |
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What is the difference in standards of care for a licensee and an invitee?
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L - reasonable care and duty to warn of hidden dangers known to owner but unknown to guess
I - reasonable care in keeping premises safe; reasonable care for all entrants |
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What is the standard of care for Children entering onto land?
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High
- knows children likely to trespass - knows unreasonable risk of harm - children would not discover or realize risk - elimination of burden slight compared to risk - failure to exercise reasonable care |
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What are the various methods of treating Persons Privileged to Enter Regardless of Consent?
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- licensees
- invitees - depending on highest duty owed to other persons at same time/place - special category and special duty - reasonable care |
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What is Vicarious Liability?
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substituted liability;
performed or exercised in place of another; liability through someone else; liability imputed and based on tortious acts of another and liable for the entire share of comparative responsibility assigned to that other person |
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What is respondeat superior?
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"let the superior answer"; where an employer or principal is liable for the the wrongful acts of an employee or agent during the scope of employment or agency
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What is the "going and coming" rule?
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an employee is outside the scope of employment while engaged in the commute to and from the workplace
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What is a frolic?
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a substantial deviation or abandonment on employee personal business during scope of employment
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What is a detour?
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a deviation related to employment during scope of employment (results in greater chance of vicarious liability)
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Factors to determine a deviation from scope of employment.
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-Departure from normal method
-act Outside enterprise of master -act Commonly done by servants -Time, place, purpose of act -master Expectations act will be done -previous Relations -Apportioned business between different servants -Criminally serious act -Instrumentality furnished by master -Quality of act similar to authorized act |
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What is agency?
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fiduciary relationship arising when a principal manifests assent to an agent that the agent shall act on principal's behalf and subject to principal's control and agent manifests assent
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Principal
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one who benefits from or is affected by acts of another or sponsors and/or controls another
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Agent
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party who serves intermediary function and is controlled by principal
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Fiduciary Relationship
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duty created by undertaking action primarily for the benefit of another regarding that undertaking
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Independent Contractor
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engaged to perform certain service for another accordign to own methods and manner free from control and direction of employer in all matters of performance, except the results
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Examples of non-delegable duties
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-imposed by public authority
-condemning agent to protect parcel of land from damage -construct building safely -employed to do work creating unreasonable risk of harm -landowner maintenance of property -safety labor provisions |
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apparent agency (or agency by estoppel)
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expressly or impliedly represents another party is servant or agent may be held vicariously liable to extent of representation
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Servant
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employed to perform certain services in affairs of another and subject to control or right to control of that other person
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Elements of Joint Enterprise
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- express or implied agreement among groupmembers
- common purpose of group - community pecuniary interest - equal right to voice and control direction of enterprise |
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Family Purpose Doctrine
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owner of an auto may be held vicariously liable when car is negligently driven by a member of the immediate houselhold
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What is Imputed Contributory Negligence?
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bars plaintiff recovery against a negligent defendant where teh plaintiff and a 3rd party relationship exists such that the plaintiff would be vicariously liable as a defendant for negligent acts of that 3rd party
*largely abandoned |
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What is Strict Liability?
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the defendant must pay damages although neither intentionally acted, nor failed to take reasonable care
- plaintiff must only prove causation and damages |
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What are the 3 American rules for trespassing animals?
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"fencing in" - animals must be fenced in or restrained
"fencing out" - properly fenced land, only liable if the animals break out or negligence common law - only applicable to animals likely to roam or do damage |
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What are wild animals?
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animals not by custom devoted to service of mankind at time and place where they are kept
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What are Domestic animals?
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animal by custom devoted to service of mankind at the time and place where they are kept
- owner only liable if animal has dangerous propensities |
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What are factors to classify an activity as Abnormally Dangerous?
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-existence of high risk of harm
-likelihood harm will be great -inability to eliminate risk with reasonable care -not common usage -inappropriateness of activity where carried on -value to community outweighed by dangerousness |
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What are the limitations of Strict Liability?
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- no liability for "acts of God" or 3rd parties
- foreseeability of the risks - statutory sanction for the actions |
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What are defenses to Strict Liability?
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contributory negligence where knowningly and unreasonably subjected self to harm
assumption of risk comparative negligence may reduce damages |
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Products Liability
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liability of manufacturer, seller, other supplier of chattels, to one whom he is not in privity of contract, who suffers physical harm caused by chattel
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Theories of Recovery under Products Liability
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- Negligence
- Warranty - Tort |
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What is Warranty?
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promise that product will meet specified level of performance without defect; assurance; guarantee
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Express Warranty
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purchaser remedy agaisnt manufacturer when failure of goods to comply with manufacturer's representations to existence of qualities goods do nto possess, and absence is not readily discoverable
-must be specific promise -must show reliance on the promise |
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Implied Warranty
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buyer makes known to seller the particular purpose for the purchase and relies on the seller's skill or judgment
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Restatements (Second) 402A
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sell product in defective condition unreasonably dangerous to user or consumer or property is liable for harm
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What is the changes of the Restatements (Third) to product liability?
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engaged in selling or distributing products, sells or distributes defective product
-manufacturing defect -design defect -failure to warn defect |
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Manufacturing Defect
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product departs from intended design though all possible care exercised in preparation and marketing
-strict liability |
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Defective Design
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foreseeable risks of harm could have been reduced or avoided by adoption by reasonable alternative design, and the omission renders the product unsafe
-negligence liability -risk utility analysis (B<PL) |
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Failure to Warn Defect
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foreseeable risks of harm could have been reduced or avoided by provision of reasonable instructions, warnings, and the omission renders the product no reasonably safe
-negligence liability |
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What is "state of the art" in regards to defective design?
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best scientific and medical technology practically and economically feasible at the time the product was made or marketed should be utilized
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What must a plaintiff show for Product Liability?
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- the product was manufactured by the defendant
- product was defective and injury was the result - defect was present at time of sale and not introduced by another party |
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Defenses to Products Liability
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-comparative negligence may reduce damages
-assumption of the risk - unforeseeable abnormal or unreasonable use of product (misuse, alteration, modification) |
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Public Nuisance
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unreasonable interference with a right common to the general public
- conduct involves substantial interference with public health, safety, peace, comfort -of continuing nature or producing permanent effect -actor knowledge of substantial detrimnent to public right |
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Private Nuisance
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unreasonable interference with use or enjoyment of property interest in land to owner or possessor of land that does not require physical entry to land
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Nuisance per se
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act, occupation, structure which is nuisance at all times and under all circumstances, regardless of location or surroundings
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Nuisance per accidens
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by reason of location, manner constructed, maintained or operated
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What are defenses to Nuisance?
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contributory negligence
assumption of risk if discover and deliberately encounters |
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Describe the Self Help doctrine of nuisance.
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similar to use of reasonable force for protection of land against trespass
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Joinder
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plaintiff claim arises from same transaction, occurrence, or series of transactions or occurrences and any questions of law or fact are common to all defendants who may arise in action
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What are the 3 situations where Joinder is applicable?
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- defendants acted independently to cause same harm
- defendants acted in concert - defendants acted independently to cause different harms |
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Joint and Several Liability
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each of several tortfeasors is liable jointly with others for the amount of judgment agaisnt them, and each is liable for full amount and the plaintiff may collect from the group or any defendant
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What are the 3 situations where Joint and Several Liability is applicable?
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- defendants acted in concert
- defendants failed to perform common duty to plaintiff - defendants acted independently to cause indivisible harm |
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Satisfaction
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acceptance of full compensation for injury, but the plaintiff only gets ONE
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Release
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surrender of plaintiff claim, which may be for only partial or no compensation
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Covenant not to sue
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plaintiff contracts not to sue on cause of action and may retain the right, but not enforce it
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Contribution
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SHARE liability based on the relative fault of the parties
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Indemnity
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SHIFT liability and entire cost of judgment
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What is the apportionment of damages for Concurrent Tortfeasors?
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- injury is indivisible
- each defendant is liable for full compensation |
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What is the apportionment of damages for Successive Tortfeasors?
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- unrelated accidents will not join or apportion damages
- related accdients only responsible for damages from own accident |
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Divisibility of Injury where no joint liability exists
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-injuries are factually and medically separable
-liability for all injuries and damages allocated with reasonable certainty |
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Divisibility of Injury where joint liability exists
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-single and indivisible injury
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What is proportion?
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-not always equal amounts
-court adjudicates proportional amount per defendant fault |
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What is pro rata?
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-equal amounts
-divide amount of damages by total defendants and all pay equal amounts |
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Misrepresentation
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fraudulently representing a fact, opinion, intention, or law for the purpose of inducing another to act or refrain from action in justifiable reliance on it
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What is a misrepresentation?
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words spoken or written or any other conduct which amounts to assertion not in accordance with the truth
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What is the duty for disclosure?
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- no general duty to disclose
- exceptions: > fiduciary relationship > selling property > utterance deceives plaintiff |
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Fraud
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false representation made knowingly, recklessly, wiht no belief of the truth
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Scienter
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knows or should know; degree of knowledge giving legal responsibility
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Fraudulent Misrepresentation
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- knows or believes matter not as represented
- no confidence in accuracy of representation - knows no basis for representation |
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materiality of fact
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if a reasonable man would attach importance in determining a choice of action
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fact
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actual, objective, verifiable
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opinion
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subjective, interpretation of fact, not verifiable
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What is misrepresentation of law?
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reliance on representation of matter of law as fact
representation of opinion to legal consequences of facts known to both or asssumed to exist |
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Benefit of the Bargain
(for allocation of damages) |
value represented-value purchased = amount
*usually awards greater damages |
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Out of Pocket
(for allocation of damages) |
value paid-value purchased = amount
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Whom may be defamed?
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any living person
corporation in special circumstances |
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Defamation
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communication that tends to damage the reputation of plaintiff by diminishing respect, good will, confiecne, or esteem, or excite adverse or unpleasant feelings about the person
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What is the pleading for defamation?
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defamatory words
publication inducement colloquium innuendo |
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publication
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communication to a 3rd party through words, innuendo, figures of speech, expressions of belief, allusion, irony, satire, material omissions, juxtaposition of material
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inducement
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extrinsic facts that convey meaning defaming the plaintiff
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colloquium
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formal allegation that words were of and concerning the plaintiff
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innuendo
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allegation of particular defamatory meaning conveyed in the publication of the words
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What is the affirmative defense to defamation?
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true statements
*presumption of falsity to all defamatory statements |
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Libel
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publication of defamatory matter by written or printed words, or embodiment in physical form, or any other written form of communication
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Distinguish libel per se and libel per quod.
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Per se - defamatory on its face
Per quod - defamatory through implication |
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Slander
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publication by defamatory matter by spoken words, transitory gestures, any form of communication other than libel
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What are examples of slander per se?
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-imputations of crime involving moral turpitude
-loathsome disease -business, trade, profession, office -serious sexual misconduct |
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Primary publisher
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original publisher of defamatory material
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Secondary publisher
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only delivers or transmits defamatory matter published by a third person and liable if, but only if, he knows or should know of defamtory character
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actual malice
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knowledge that false or reckless disregard for truth or falsity
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fair comment
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privilege of legal immunity for honest opinion of public concerns on true or privileged statement of facts
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fair reporting
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privilege of immunity for reporting if the report is fair and accurate
-public reports filed by officials -official proceedings of public interest -public meetings |
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Necessary for Defamation:
PUBLIC official (figure) and PUBLIC concern |
actual malice
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Necessary for Defamation:
PRIVATE figure and PUBLIC concern |
actual malice or less
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Voluntary Public Figure
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-access to channels of effective communications
-voluntarily assumed role of special prominence -influence outcome of controversy -retained public figure status at time of information |
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Involuntary Public Figure
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pursued course of conduct reasonably foreseeable that public interest would arise
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Public Official
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appear to public or actually have substantial responsibility for or control over governmental affairs
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Pure Opinion
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facts on which bases opinion and then expresses comment as to conduct, qaulifications, or character
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Mixed Opinion
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apparently based on facts regarding plaintiff but not stated by defendant or assumed to exist by parties, which give rise to inference there are undisclosed facts justifying forming the opinion
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absolute privilege
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complete immunity for false statements, without regard to purpose motive, or reasonableness of conduct
-judicial -legislative -federal public officials -high state public officials |
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conditional or qualified privilege
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immunity qualified on good motives and reasonable conduct that is forfeited when the defendant steps outside the scope of the privilege
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What are remedies for Defamation?
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-damages
-declaratory relief -self-help -right-of-response statutes -retraction statutes -injunctive relief |
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unreasonable intrusion upon seclusion of another
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-intentional intrusion
-on solitude or seclusion of another or private affairs -highly offensive to reasonable person |
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Appropriation of name or likeness
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-appropriates the name or likeness of another
-for own use or benefit |
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Unreasonable publicity given to other's private life
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-publicity to
-matter concerning life of another -highly offensive to reasonable person -not legitimate concern to public |
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Publicity that unreasonably places another in false light before public
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-publicity
-matter concerning another -false light highly offensive to reasonable person -knowingly or recklessly disregarded falsity of matter and false light placed |
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Distinguish Publicity in False Light and Defamation.
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False light not directed at or harmful to reputation of individual
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Malicious Prosecution
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-initiates criminal proceedings against person not guilty of crime
-without probable cause -for purpose other than justice -proceedings terminated in favor of the accused |
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What is an absolute defense to malicious prosecution of criminal proceedings?
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the party is guilty of the crime
-public prosecutors also have absolute immunity |
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Wrongful Criminal Proceeding
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-initiation or continuation of civil proceeding
-without probable cause -purpose other than adjudication of claim -terminated in favor of person brought against |
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Abuse of Prosecution
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civil or criminal proceeding to accomplish a purpose for which not designed to accomplish
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Interference with Business Advantages
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-improperly or intentionally interfering with contract
-inducing or causing party not to enter contract or preventing entering contract |
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Interference with an Existing Contract
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-improperly or intentionally interfering with a contract
-inducing or causing party not to perform under a contract or making more burdensome/expensive to perform |
