Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
130 Cards in this Set
- Front
- Back
|
Transferred intent may be invoked only where the tort intended and the tort that results are....
|
Assault, battery, false imprisonment, trespass to land, and trespass to chattels
|
|
|
Prima facie battery
|
1. Harmful or offensive contact to P's person
2. Intent on part of D to bring about such contact, and 3. Causation |
|
|
Can get punitive damages...
|
if D acts with MALICE (in majority of jurisdictions)
|
|
|
Prima facie assault
|
1. Act by D that creates REASONABLE APPREHENSION in P of IMMEDIATE HARMFUL or OFFENSIVE CONTACT
2. Intent on part of D to bring about such apprehension in P, and 3. Causation |
|
|
Apprehension of IMMEDIATE (not future contact)
|
Reasonabletess. Unless D knows of unreasonable fear in P and uses it to put P in such apprehension, court wont protect P against exaggerated fears.
Apprehension doesnt mean fear - just means EXPECTATION - you can reasonably apprehend immediate contact even if you belive you can defend yourself or otherwise avoid it. D's APPARENT ABILITy to act is suffiicent - dont have to have actual ability to cause injury. Some overt act is required - words alone not enough to constitute assault b/c can't create reasonable apprehensive of CONTACT |
|
|
Prima facie false imprisonment
|
1. Act or omission by D that CONFINES or RESTRAINS P to a bounded area
2. Intent to do so, and 3. Causation |
|
|
Methods of confinement/restraint for false imprisonment
|
Physical barriers, physical force directed at P, member of his family or his property, direct threats of force, indirect threats of force reasonably implied, failure to provide means of escape, invalid use of authority
|
|
|
shopkeeper's privilege
|
To avoid liability for false imprisonment, shopkepers may detain to investigate. Three requirements:
1. Must have reasonable belief as to fact of theft, 2. Detention must be condcuted in reasonable manner and only nondeadly force can be used, and 3. detention must be only for reasonable period of time and only for purpose of making an investiation |
|
|
Prima face intentional infliction of emotional distress
|
1. EXTREME and OUTRAGEOUS act/conduct by D
2. Intent to cause P suffere SEVERE emotional distress or recklessness as to effect 3. Causation 4. DAMAGES - severe emotional distress |
|
|
Intentional infliction of emotional distress in BYSTANDER
|
P must be PRESENT when injury occurred to other person, P was CLOSE RELATIVE of injured person, and D KNEW P was present and a close relative
Note: P doesn't have to show presence or family rlshp if she shows D had a PURPOSE to cause severe distress to P |
|
|
Intentional torts to PROPERT
|
1. Tresspass to land
2.Trespass to chattels 3. Conversion |
|
|
Prima facie trespass to land
|
1. PHYSICAL INVASION of P's real property by D
2. D's INTENT to physically invade (mistake ast o lawfulness of entry NO DEFENSE) No requirement of damages - damage is presumed 3. Causation |
|
|
Who may sue for trespass to land?`
|
Anyone in actual or constructive poessession of land (even if possession is without title). If no one in possession, true owner presuemd in possession.
If ation by a lessee, may recover only to extent that the trespass damages the leasehold interests |
|
|
If D accidentally but negligently hit P's building with tennis ball...
|
D not liable UNLESS P established damages as part of negligence prima facie case.
If D INTENDED to hit tennis ball against P's building, liable for trespass |
|
|
Prima facie trespass to chattels
|
1. D interfere's with P's right of possession in chattel
2. Intent to perform act interfering right 3. Causation 4. Actual Damages (ile. loss of possession) Mistake as to lawfulness of 's action is NO DEFENSE b/c intent to trespass is not required - intent to do the act of interference with the chattel is sufficient |
|
|
Trespass to chattel versus Conversion
|
Conversion grants relief for interferences with a chattel so serious in nature or so serious in consequences as to warrant requiring D pay its FULL VALUE in damages
The longer the withholding period and the more extensive use of chattel, more likely it is conversion rather than trespass to chattel |
|
|
Prima facie conversion
|
1. Act by D interfering w/ P's right of possession that is SERIOUS ENOUGH in nature or consequence to warrant that D PAY FULL VALUE of chattel (not just the damages)
2. INTENT to perform act 3. Causation |
|
|
Sample acts of conversion
|
Wrongful acquisition (i.e. theft, embezzlement), wrongful transfer (selling, misdelivering, pledging), wrongful detention (refusing to return to owner), substantially changing, severely damaging or destroying, misusing the chattel
ACCIDENTALLY causing damage to or loss of another's chattel is NOT conversion, unless D was using it WITHOTU PERMISSION when accident occurred |
|
|
Defenses to intentional torts
|
Consent, Self Defense, Defense of Others, Defense of Property, Reentry onto Land, Recapture of Chattels, Privilege of Arrest, Necessity, Discipline
|
|
|
Defense of property
|
First must request to desist BEFORE usign force (unless circumstances ake it clear the request would be futile or dangerous).
Reasonable mistake ok as to owner's right to use force in defending property where mistake invovles whether an intrusion has occurred or whether a reuqest to desist is required. But mistake not ok where ntrant has a privilege to enter the property that supersedes defense of property right in which case owner liable for mistakenly using force against a privielged entrant unless entrant himself aused the mistake. Used to PREVENT COMMISSION of a trot thus once the D has been permanenty dispossed of the property and commission of trot is compelete, cant use force to recapture (unless in hot pursuit) |
|
|
Reentry on land
|
a CL privilege - a person who had been tortiously dispossed from her land by fraud or force could use reasonable force to regain possession if acted promptly upond discovering.
DOES NOT exist under modern law - most states have summary procedures for recovering possession of real property thus resort to self help no longer allowed. |
|
|
Recapture of chattels
|
Wher antoehr's possession began lawfully (i.e. conditional sale), can only use peaeful means to recover it but force may be used when in HOT PURSUIT only. Must make demand to return it before use of force unless clear demand futile or dangerous.
|
|
|
Necessity defense
|
You may interfere w/ real or personal property of another where interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when such injury is more serious than the invasion
|
|
|
Public necessity defense
|
where act is for public good (i.e. shooting a rabid dog), defense is absolute
|
|
|
Private necessity defense
|
Where act to benefit ANY PERSON (actor, owner of land, some other 3rd party) or to protect any property from destruction or serious injuyr (tying up to a dock in a storm), defnse is qualified (actor must pay for any injury or damage he auses)
|
|
|
Prima facie defamation
|
1. Defamatory lanuage on part of D
2. Such language is of or concerning the P (identify P to reasonable reader, listener, viewer) 3. Publication of such langauge to third person, and 4. DAMAGE to reputation of P |
|
|
Defamation of public figure
|
1. Defamatory lanuage on part of D
2. Such language is of or concerning the P (identify P to reasonable reader, listener, viewer) 3. Publication of such langauge to third person, and 4. DAMAGE to reputation of P 5. Falsity of language 6. Fault on D's part |
|
|
Statement of opinion is actionable as defamation only if...
|
it appears to be based on specific facts and an express allegation of those facts would be defamatory
|
|
|
Repetition of defamatory statements
|
If original defmation is libel, any repetition (even if oral) also libel.
If slander repeated in wrriten form, libel. |
|
|
slander per se
|
injury presumed if the spoken defamation fals within 1 of 4 categories:
1. Business or Profession 2. Loathsome disease 3. Crime involving moral turpitude 4. Unchastity of a woman |
|
|
Even where astatement is true, it may still give rise to liability if it is uttered under circumstnaes sufficient to constitute...
|
intentional infliction of severe emotional distress or invasion of right to privacy
BUT if P is a publi figure who would be barred on 1st Am grounds from recovering for defamation, can't rely on these other tort theories |
|
|
Public officials may not recover for defamatory words relating to his official condut in absence of clear and convincing proof that the statement was made with...
|
MALICE (knowledge that statement was false or reckless disregard as to its truth or falsity)
Recklessness is SUBJECTIVE (not reasonable person standard) - D in fact subjectively entertained serious doubts as to truthfulness of publication same for public FIGURES |
|
|
Who is a public figure
|
Has achieved such pervasive fame or notoriety that he becomes a public figure for all purpsoes and contexts or where he voluntairly assumes a central role in particular public controversy
|
|
|
matters of PUBLIC CONCERN for purposes of defamation?
|
Defamation actions brought by PRIVATE INDIVIDUALS are subject to limitations only when defamtory statment involves public concern.
Prohibits liability without fault and restricts recovery of presumed or punitive damages |
|
|
Defenses to defamation
|
Consent, Truth (in cases of purely private concern where P not required to prove falsity, truth is a complete defense), absolute privilege (judicial proceedings, legislative proceedings, executive proceedings, compelled broadcast or publication, communication btwn spouses), qualified privilege
|
|
|
Invasion of Privacy - 4 kinds of wrongs
|
1. Appropriation by D of P's picture or name for D's COMMERCIAL ADVANTAGE
2. Intrustion by D upon P's affairs or seclusion 3. Publication by D of facts placing P in FALSE LIGHT 4. Public disclosures of private facts about P by D |
|
|
Appropriation of P's Picture or Name
|
Unauthroized use by D of P's pic or name for D's commercial advantage
Limited to use of P's picture or name in connection with promotion or advertisement of a product or service. Mere fact that D is using P's picture or name for own pwersonal profit not alone suffiicent (so the use of a person's name in a magazine story, even if motivated by proit, is not actionable) |
|
|
Intrusion on P's affairs or seclusion
|
Act of prying or intruding on affairs or seclusion, intrusion is smthg that would be objectionable to a reasonable person, and thing to which there is intrusion or prying is PRIVATE
|
|
|
False light
|
Publication of FACTS about P by D placing P in false light in public eye, the false light is smthg that would be objectionable to reasonable person under circumstances, and MALICE on part of D where the published matter is in PUBLIC INTEREST
There must be publicity conerning false light facts - need more than publication than in defamation False light is a fact if it attributes to P a view that he does not hold or actions that he did not take....FALSITY...if it affects P's reputation, defamation |
|
|
Publci disclosure of private facts about P
|
Publication or public disclosure by D of PRIVATE info about the P and the matter made public is such that a reasonable person would object to having made public. If fact is in public record, this is not private.
Even if fact is TRUE, liability |
|
|
Constitutional privilege to public disclosure of private facts abotu P
|
If matter is one of legitimate public interest, publicaiton is privileged if made WITHOUT MALICE.
Mere passage of time doesnt preclude public interest - the life of one formerly in public eye is still public property Absolute privielge if matters republished were from official public records (i.e. rape victim's name obtained from police records or court proceedings used in a newspaper article) |
|
|
Special damages in invasion of privacy
|
Proof not required as long as elemetns are present. Emotional distress and mental anguish are sufficient
|
|
|
DEFENSES to invasion of privacy
|
1. CONSENT (unless exceeded scope of consent)
2. Defamation Defenses - absolute and qualified privilege are aplicable to invasion of right to privacy actions based on publication grounds (false light, public disclosure of private facts) Note: TRUTH is NOT A DEFENSE, inadvertence, good faith, lack of malice not good either. |
|
|
MI Consent defense to invasion of privacy
|
o MI says consent can be express or implied as a defense. Implied consent requires clear unequivocal decisive act.
o |
|
|
MI Statutory cause of action for invasion of privacy (in addition to common law tort)
|
Statutory cause of action (in addition to common law tort of invasion of privacy) – MI prohibits installation of devices that observe, photograph, eavesdrop in private place w/o consent of persons entitled to privacy of that place.
|
|
|
Intentional misrepresentation, fraud or deceit
|
1. Misrepresentation made by D
2. Scienter 3. Intent to induce P's reliance 4. Causation (actual reliance) 5. Justifiable reliance 6. Damages |
|
|
Misrepresentation
|
No general duty to disclose material fact or opinion to one is imposed UNLESS
1. D and P have fiduciary rlshp hence duty of disclosure 2. D selling real property nows P unaware of and cannot reasonably discover material info about transaction 3. Where D speaks and her utterance deceives P, she will be under duty to inform P of the true facts Active concealment of a material fact - duty to disclose |
|
|
Scienter for misrepresentation
|
P must prove D made the representation knowing it to be false or made with reckless disregard as to its truth or falsity
If no scienter, D may be liable for NEGLIGENT MISREPRESENTATION |
|
|
Exception to requirement that you have to intend to induce reliance on your misrepresentation
|
Continuous deception
|
|
|
Third party reliance on misreprsentation
|
D communicates directly to one person and another relies upon the misrepresentation. D is viewed as intending to deceive the person who relies upon the misrepresetnation IF the D could REASONABLY FORESEE tha the P will have such reliance. (i.e. D intentionaly sent false profit statement to a stockbroker and a customer relied on the statement to his detriment - liability)
|
|
|
Justifiable reliance on a misrepresentation
|
Even if it was intended by D that P rely on the representation, P must nonetheless prove it was JUSTIFIED. Usualy always justified. Only where the fats are obviously FALSE is there no justifiable reliance.
NO DUTY ON P TO INVESTIGATE VERACITY OF D'S REPRESENTATION OF FACT EVEN IF IT IS ESY FOR P TO DO SO. HOWEVER< if P does investigate, may not rely on representations by D inconsistent with facts reasonably ascertainable form such investigation. |
|
|
Reliance on OPINION usually not justifiable unless...
|
1. D has superior knowledge of subject matter
2. D is a lawyer who made as tatement of law hence has superior knowledge or if the D is a homeowner who falsely states that hte house she is offering for sale conforms to city requirements 3. Statmeents of FUTURE EVENTS are viewed as opinions and not reliable unless characterized as a statement of PRESENT INTENT (i.e. D promises to pay P 50/month for next two years) |
|
|
Damages for intentional misrepresentation
|
P may recover ONLY if suffered ACTUAL PECUNIARY LOSS
|
|
|
Negligent Misrepresentation
Hint: Confined only to commercial transactions and only if reliance by P could be contemplated (duty owed to P) |
1.1. Misrep made by D in BUSINESS OR PROFESSIONAL CAPACITY
2. Breach of duty toward particular P 3. Causation 4. Justifiable reliance 5. Damages Foresee ability that it will be relied upon THIRD PERSONS not applicable here but it is for deceit |
|
|
Malicious prosecution
|
1. institution of criminal proceedings against P
2. Case terminated in favor of P 3. Absence of probable cuase for prosectuion 4. Improper purpose of D 5. Damages Prosecutor immune from malicious prosecution claims even if acted in bad faith without probable cause |
|
|
Abuse of Process
|
It's a tort to use any form of process, civil or criminal, to bring about a result other than that for which form of process was intended (i.e. D garnished an account to force P to sign a lease)
Wrongful use of process for ulterior purpose, some definite act or threat against P to accomplish ulterior purpose Not malicious prosecution |
|
|
Interference with Business Relations (K, prospective economic advantage)
|
1. Existence of valid K rlshp btwn P and third party or valid business expectancy
2. D's knowledge of rlshp or expectancy 3. Intentional interference by D that induces breach or termiantion of rlshp or expectancy 4. Damage to P D must INTEND to interfere - no recovery for negligent interference with K in absene of some independent tort such as negligent misrepresentation MUST have atual damages and may recover in addition to, distress and puntiive damages UNLESS THERE IS A PRIVILEGE |
|
|
NEGLIGENCE
|
1. Duty of D to conform to specific standard of condcut
2. Breach 3. Actual and proximate cause of injury 4. Damage to P's person or proerty |
|
|
General duty of care
|
One of ordinary, prudent, reasonable person to take precautions against unreasonable risks of injury to other persons
|
|
|
To whom is duty owed?
|
FORESEEABLE PLAINTIFFS
|
|
|
If P is unforeseeable....
|
Problem arises when D breaches a duty to P1 and also causes injury thereby to P2 to whom a foreseeable risk of injury MAY OR MAY NOT have been created at time of original act
Depends on whether P2 was in ZONE OF DANGER |
|
|
Standard of negligence for CHILDREN
|
Child required to conform to standard of care of a child of LIKE AGE, EDUCATION, INTELLIGENCE, and EXPERIENCE
This is a SUBJECTIVE evaluation |
|
|
Children engaged in adult activities
|
Required to conform to same standard of care as an adult in such an activity (i.e. driving a car, flying a plan, driving a boat)
|
|
|
Negligence duties for common carriers and innkeepers
|
Required to exercise very high degree of care toward their passengers and guests
|
|
|
Guest statutes
|
Driver's only duty to a NONPAYING rider is to refrain from gross or wanton and willful miscondcut
Does not apply to passengers (riders who contribute toward expense of ride - owed duty of oridnary care) |
|
|
Duty of possessor to those off the premises
Natural Conditions |
Owner owes NO DUTY to protect one outside premises from natural conditions on the land except for decaying trees next to sidewalks or streets in URBAN areas
|
|
|
Duty of possessor to those off the premises
Artificial Conditions |
NO DUTY for artifical conditions btu 2 exceptions
1. UNREASONABLY DANGEROUS CONDITION - owner liable for dmage caused by unreasonably dangerous artificial condtiions or structures abutting adjacent land 2. Duty to protect passerby - owner has duty to take due precautions to protet persons passing byf rom dangerous conditions (i.e. erecitng a barricade to prevent people from falling into an excavation at edge of property) |
|
|
Duty of possessor to those off the premises
Conduct of persons on property |
Owner has duty to exercise reaosnable care w/ respect to his own activities on the land and to control condcut of others on his property so as to avoid unreaosnable risk of harm to others outside the property
|
|
|
Duty of Possessor to those ON THE PREMISES
To an undiscovered or discovered TRESPASSER |
Owner owes NO DUTY to undiscovered trespasser, but once he discovers presence of a trespasser, under duty to exercise ordinary care to WARN trespasser or to MAKE SAFE, ARTIFICIAL CONDITIONS known to the owner that involve RISK OF DEATH or SERIOUS BODILY HARM and that the trespasser is unlikely to discover. B
|
|
|
Duty of Possessor to those ON THE PREMISES
To an anticipated trespassor |
An anticipated trespasser is where owner knows or should know of presence of trespassers who constantly cross over a section of his land (but if owner posted no trespassing signs, this converts them to undiscovered trespassers)
Same duty to discovered trespassers in most states |
|
|
Infant trespassers - attractive nuisance doctrine
|
owenr has duty of oridnary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on his property - to assess this special duty on owner or occupier of land in regard to children, P msut show:
1. Dangerous ondition on land of which owner is or should be aware 2. owner knows or should know that young person frequent the vicinity of dangerous condition 3. condition is likely to cause injury (is dangerous) b/c of child's inability to appreciate the risk 4. expense of remedying is slight compared to magnitude of risk |
|
|
Duty of easement and license holders to trespassers
|
EEs and independent contractors acting on behalf of landowner have status of landowner, persons with EASEMENT or LICENSE to use the land DO not have status as landoner - they must exericse reasonable care to protect trespasser
ex. power company's liable for injury to an undiscovered trespasser |
|
|
Licensee
|
One who enters on the land with landowner's PERMISSION, express or implied, for her own purpose or business rather than for landowner's benefit
ex: social guests |
|
|
Duty owed to licensee
|
Duty to warn licensee of dangerous condition KNOWN to owenr or occupeir that creates unreasonabel risk of harm to licensee and that licensee unlikely to discover
NO DUTY TO INSPECT for defects nor to repair known defects |
|
|
Invitee
|
Person who enters onto premises in response to an express or implied invitation of the landowner. Two types:
1. Those who enter as members of public ofr apurpsoe for which land is held open to public (museums, churches, airports, hotles) 2. Those who enter for purose connected with the business or other interests of landowner or ocupier (store customers, employees, making deliveries) |
|
|
Firefighters Rule
|
Police officers and firefighters generally treated like licensees rather than invitees based on public policy or assumption of risk grounds - cant recover for landowner's failure to inspect or repair dangers conditions that are inherent risk of law enforcement or firefighting activity
|
|
|
Reversion to licensee
|
Scope of invitation - person loses status as invitee if she exceeds scope of invitation
|
|
|
Duty owed to invitee
|
general duty to use reasonable ordinary care in keeping propery reasonably safe for benefit of invitee - includes duty to warn of nonobviosu dangerous conditions known to landowner plus duty to INSPECT dangerous conditions
Warning may suffice Duty to warn does not exist where dangerous condition is so obvious that the invitee should reasonably have been aware of it |
|
|
Uses of recreational land
|
If owner or oupier of open land permits public to use it for recreational purposes without charging a fee, owner not liable for injuries UNLESS he willfully and maliciously failed to guard against or warn of dangersou condition or activity
|
|
|
Negligent infliction of emotional distress
|
D creates foreseeable risk of physical injury to P by causing a threat of physical impact that leads to emotional distress or directly causign severe emotional distress that by itself likely to result in physical symptoms
P must suffer physical injury, be within target zone or zone of danger Special situatiosn where physical injuyr not required - cases where D's negligence creates GREAT likelihood of distress such as errneous report of a relative's death or the mishandling of a relative's corpse |
|
|
Tort of neglgient infliction of emotional distress not only way to recover damages for emotional distress. I fP is victim of another tort that causes physcal injury..
|
P can tack on damages for emotional distress as a PRASITIC element of his physical injury damages
|
|
|
MI law on conversion of money...
|
D mus thave obligation to return the specific money that was entrustd to his care
|
|
|
MI statutory conversion
|
IN addition to a CL action agianst the converter, MI provides statutory cause of action against those who AID in conversion of property. Remedy against anyone who (a) steals, embezzles, or converts property to her own use, or (b) buys receives or aids in the concealment of stolen, embezzled or converted property with the knowledge that the property is stiolen, embezzled or converted
Actual knowledge is required! P can recover three times amount of actual damages plus costs and atty fees |
|
|
MI self-defense to intentional torts
|
Duty to retreat before using deadliny force unless can't be done safely or actor rightfully in own home
|
|
|
MI defense of others
|
allowed if based upon reasonable blief that third person would have right of self defense
|
|
|
MI defamation
|
requires showing of fault in all defamation cases
|
|
|
MI damages rules for libel
|
MI treats libel like slander -s pecial damages are required unless the statement falls into one of four slander per se categories
|
|
|
MI consent defense to invasion of privacy
|
consent can be express or implied if clear, unequivcoal and decisive
|
|
|
MI statutory cause of action for invasion of privacy
|
prohibits installation/placement of any device that observes, photographs, eavesdrops in private place withotu consent of persons entiteld to privacy
|
|
|
MI innocent misrepresentation doctrine
|
Action for fraud doesnt require scienter IF the parties are in privity of K and loss of party deceived inures to benefit of misrepresetning party
Also, intent to induce reliance automatically satisfied if in privity of K |
|
|
MI malicious prosecution
|
With respect to favorable termiantion elemetn, the following do NOT satisfy it:
1. compromise or settlement, 2. action by accused as a favor that brings about termination of criminal proceedings or 3. act by accused that prevents litigation |
|
|
MI - wrongful birth
|
not recognized. Cant recover cost of raising a healthy child in a wrongful pregnancy where the doctor negligently performed sterilization procedure
|
|
|
MI - in med mal cases, general practitioners are held to standard of...
|
reasonable care in same or similar community
|
|
|
MI - in med mal cases, specialists are held to standard of...
|
care within that specialty considerin gthe facilites avialable int he community or reasonably available
|
|
|
MI - loss of chance
|
In me dmal, P cannot recover for deceden's loss of oppty to survive UNLESS expert testimony shows that the chance of survival absent the alleged negligence would have been greater than 50%
|
|
|
MI - patient abandonment
|
When a medical professional terminates the physician-patient rlshp withotu providing patient reasonable time to find another meidcal professional to provide treatment
|
|
|
MI limits on noncominc loss in med mal cases
|
Jury may nto award more than $280,000 (adjusted annually). But limit is 500,000 if P is partly paralyzed, if injury to P's brain or spinal cord, if P can no longer procreate or injury to P's mental abilities is such that P can no longer care for himself.
No cap on economic damages. |
|
|
MI - minimum age for children capacity to be negligent
|
A child under age of SEVEN is incapable of negligence as a matter of law.
|
|
|
MI - duty owed to INVITEE
|
MI does not extend invitee status to members of the public who enter on land for purpose for which land is held open to the public (museums, churches).
Invitee status must be founded on COMMERCIAL PURPOSE for visiting owner's premises. This is unliek general definition of invitee status |
|
|
MI's version of firefighter's rule
|
Fighrefighters and police officers cannot recover against landowerns for dangerous conditions on land that cuase injuries to them in cours eof their regular authorized duties. But they can recover ONLY IF:
1. LO caused injury by conduct that was intential, willful, gorssley negligent OR 2. LO caused injury by negligent condcut AFTER arrival of firefighter or police officer on sene |
|
|
MI duty owed to invitee and obviousness of danger
|
LO has no duty to invitees for conditions on land that are so open and obvious that the invitee should be expected to discover them, but if special aspects of condition make it unreaosnably dangers, duty to undertake reasonable precautions (i.e. visibly slippery stairway was only exit from premises)
|
|
|
MI - uses of recreational land
|
LO liable to respasser or licensee only for owner's gross negligence or wanton and wilful condcut where trespasser or licensee was on land for purposes of outdoor recreation, using a public trail or gathering agricultural products
|
|
|
MI statutory duty of owners of leased residential property
|
Owners of leased residential property obligated by statue to keep premises in reasonable repair and comply with health and safety laws of the state and local govts. If an invitee is injured as a result of an owner's failure to comply with this stautory duty, owner is liable even if the danger is open and obvious.
|
|
|
MI - negligent infliction of emotional distress
|
Bystanders can recover for negligent infliction of emotional distress resulting in phsical injury even though not within the target zone. To recover P must show that (1) severe distress was reasonaby foreseeable due to gravity of the harm inflicted on the victi, (2) P was present at time of peril or suffered shock contemporaneously and (3) P is member of viitm's immediate family.a
|
|
|
MI good samaritan act
|
health care provider immune from liability for oridnary negligence if had good faith belief that a life threatening emerency existed
subjective test |
|
|
MI - res ipsa loquitor
|
Must be supported by expert testimony or within common understanidng of jury
|
|
|
MI - damages for negligence
|
P must show a present physical injury to a person or property and economic losses resulting from injury (economic losses relatied to medical monitoring to detect a possible future injury not sufficent)
|
|
|
MI - punitive damages
|
No permitted. Exemplary damages are a type of compensatory recovery for injuyr to feeling and available only where D acted intentionally and maliciously
|
|
|
MI - partial comparative negligence
|
Only bars recovery of nonecomic damages. If P's fault was greater than 50% of total fault, P cannot recover for NONECONMIC DAMGES, but may still recover economic damages reduced by her relative degree o fault in all tort actions.
|
|
|
MI - effect of intoxication on partial compartive negligence
|
If P foudn to hav ebeen 50% or more at fault AND under influence of drugs or alcohol, cannot recovery ANY damages
|
|
|
MI - dog bite statute
|
imposes SL if injured person was in a public place or lawfully in a private place (not a trespasser).
Also SL for harm from domestic animals when D is owner or keeper of animal, D knew of anima's dangerous propensity and harm results from such propensity |
|
|
MI product liabiltiy
|
To recover from manufacturer or seller for a defective product that caused death or injury, P must prove product was not reasonably safe at time it left control of manufacture or seller
Reaosnable safety of product determiend from general industry production practices |
|
|
MI - to recover damages for a design defect, P must prove that accoridng ot production practices generally acecpted in that industry
|
1. there was techincially feasiable and practical alternative to design
2. alternative was reasonably avialable at time product left manfuacturer's control 3. use of altenrative would've prevented injury that P sustained, and 5. the alternative wouldnt have significantly compromsied usefullnes or desirability of product |
|
|
MI - rebuttable presumption that if a product complied with recognized industry or govt standards, the product was safe
|
Conversely, fat tha ta product does NOT comply with recognized standard doesnt raise presumption that it is unsafe
If a drug is approved by FDA, there is irrebuttable presumption that the drug is safe unless manfuacturer withheld information from the FDA |
|
|
MI - cap on noneconmoic damages in product liability actions
|
280,00 unless product caused eath or permanent loss of vital body function in which case damges limited to 500,000
|
|
|
MI defenses to product liability D
|
MI's comparative fualt statute appleis to product liability actions and also provides a COMPLETE DEFENSE if:
1. harm was caused by subsequent alteration of product that wa snot reasonably foreseeable 2. product was misued in a way that was not reasonably foreseeable 3. P knew product create dunresasble risk of injury and voluntairly expoed to risk 4. product by its nature is inherently unsafe and cannot be made safe withotu susbtantially comrpomising its utility or desirability |
|
|
Mi products liability - failure to warn
|
no liability for failure to warn if danger was obvious, product provided for sophisitcated users or danger was not known an dreasonably couldnt have been known at time it left D's control
|
|
|
MI products liability - defenses to the seller
|
Seller who is not a manufacturer has no liability for a defective product unless he failued to use reaosnabel care including breach of implied warranty in its selling or seller made and breached express warranties
|
|
|
MI implied warranty of merchantability and fitness
|
MI requires horizontal privity - implied warranty extends to buyer's family househould and guests
|
|
|
MI coming to the nuisance
|
Right to Farm Act - farm over has the coming to the nusiance defense against surroundign landowners when land use of area changes and farm not a nuisance when the land use changed
|
|
|
MI vicarious liability of parent for child
|
Parent liable for up to 2500 for child's malicious injury to persons or property
|
|
|
MI permissive use statute
|
car owner VL for damages negligently caused by driver of owner's car if driver used car with owner's knowledge or consent
Owner's liability applies even when damage is caused by a mechanic to drove the car inside a repair shop |
|
|
MI - joint liability
|
abolished except in med mal cases where P not at fault
Jury must allocate % of liability among parties AND nonparties A finding of fault against a nonparty tortfeasor not admissible against him in a later suit against him |
|
|
MI - release
|
The release of one party does NOT release any other tortfeasor at least where tortfeasors are independently liable.
But if liability based on respondeat superior, release of agent releases principal. If a D gets a release or covenant not to sue is discharged from all liability for contribution to toher Ds who subsequently have to pay a judgment to P |
|
|
MI - indemnity
|
Allowed under active passive negligence doctrine
|
|
|
MI comparative contribution
|
Based on relative fault of joint tortfeasors but depends on degrees of fault
|
|
|
MI wrongful death and survival act
|
combiens into one cause of action any actions for damages suffered by a decedent prior to his death and damages by the spouse and next of kin as a result of death
PR sues on behalf of surviving spouse, next of kin an destate |
|
|
MI - intra family tort immunities
|
MI abolished interspousal immunity
Also abolished parent child immunity except for exercise of reasonable parently authority and discretion in providing care |
|
|
MI govt immunity
|
Retains immunity for exercise and discharge of GOVT FUNCTIONS
No immunity for proprietary functions Operation of a public hospital, city parking lot and garbage collection are governmental functions |
|
|
MI exceptions to govt immunities
|
HIghway safety - govt agency with jurisdition over highway has duty to keep it reasonably safe and liable for damages caused by unreasonably dangerous defets in the highway if the govt agency knew or should'e known
Govt owned cars - govt agency liable for damages resutling from negligent operation of agency's car by govt employee or agent public buildings - govt agency has obligation to repair and maintain public buildings under their contorl if building is for use by the public, injury from dangerous or defective condition, they had actual or constructive knowledge and failed to take action |
