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86 Cards in this Set

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  • Back
What are the affirmative defenses to defamation?
1. Consent (express or implied)
2. Truth
3. Privileges
What are the two types of privileges that serve as affirmative defenses to Defamation?
Absolute Privileges, based on the identity of the speaker, such as spouses or people in govt (obvious case is govt prosecutors)

Qualified Privilege (based on the purpose of the speach, situations where we encourage candor like letters of recommendation or credit report. cannot inject irrelvancies
How must a plaintiff in a defamation proceed if the subject matter is a public concern?
Must bring it under the 1st Amend and prove 2 additional elements:

1. Defamatory Statement
2 Publication
3. Damages, maybe AND
4. Falsity (taken truth as an AD and moved it to the other side
5. Fault (relates to the D's awareness)
What do we mean by fault?
Different standards for a public/private figure.
for a public figure, must prove malice or reckless disregard. For private, just negligence.
What are the Privacy Torts? and which one is recognized in NY?
DIFA= Disclosure of a confidential fact,intrusion, false light, appropriation

What is the tort of appropriation?
D uses the P's picture or name for commercial purposes.

Exception for newsworthiness. The classic violation is Tiger's picture on a cereal box.

In NY the newsworthiness exception is treated very broadly
What is intrusion of physcial solitude?
invasion of P's seclusion in a way that is objectionable to an average person.

eg. wiretapping, secret video taping
What is False Light tort?
Widespread dissemination of a major misrepresentation that would be objectionable to the avg person.
Distinguish Defamamtion from false light
Lots of overlap, but False Light can allow recovery for emotional and psychological damamges. It also can allow recovery of something that is not bad in and of itself and the defendant had a good faith belief in the accuracy.
What is disclosure of a confidential fact?
Its the widespread dissemination of confidential infor about the P that would be objectionable to the avg. person.
What is the exception to the disclosure tort?
Newsworthiness. Star and in touch can do it about celebrities, president cheney.
What are the affirmative defenses to the privacy torts?
Consent is a defense to all 4.
Defamation privileges (absolute and qualified- for socially useful speech) are avaialbe for false light and disclosure.
What are the Economic Torts?
Prima Facie
INterference with Contractual Relationship
What are the elements of fraud?
1. Affirmative misrepresentation
2. Scienter (you know its false)
3. Intend to induce reliance
4. Actual Reliance
5. Justifiable reliance.
6. Economic harm or damage

Classic example is you overpaying for something and getting ripped off
What are the elements of prima facie tort?
1. Intent to do the act that causes harm
2. Allege and prove special damages.

classic case is maliciously selling products below cost to drive a rival out of business. Its a catch-all designed for malicious economic behavior.
What are the elements for interference w. contractual relationship?
1. D knows of a valid K bw P and 3rd party
2. D interfears and persuades 3rd party to walk away (lies, threats, whatever)
3. 3rd party breaches.

Exception is family members and trusted advisors. If they induce you to breach, they Can't be held liable.
What are the 4 elements of negligence?
1. Duty
2. Breach
3. Causation
4. Damages
To whom do you owe a duty of care?
To Foreseeable Victims. No duty to unforeseeable victims. What's an unforeseeable victim? SOmeone outside the zone of danger.
What are the exceptions to the unforeseeable victim rule?
1. Rescuers- they seem far away, but danger invites rescue.
2. Injuries to fetuses- if child is born alive, he has a claim, otherwise its the mom's
3. Doctors fail to diagnose impending birth defects
4. Wrongful pregnancy (not recognized in NY, yes on the MBE)
What is the standard duty of care?
must be as careful as the RPP acting under similar circumstances.
Is the duty of care standard objective or subjective?
Its objective. No allowance for shortcomings like stupidity, mental illness, or amateur hour.
What are the exceptions to the objective duty of care standard, where we do take into account the D's subjective or personal characteristics?
We ratchet up the standard of care for expertise (professional race car driver) and possession of nugget of relevant extra info. (stupid lenny who knows about the dangerous intersection)

We also talke into account physical characteristics- BLind gets RPP who is blind.
What is the special duty rule for children?
Standard is subjective and customized to each kid.

Children under 4 are incapable of negligence. 4-18 get that of a hypothetical chid of similar age, experience, and intelligence. (very flexible and pro-defendant)

Children engaged in adult activity like operating a vehicle, get adult RPP
What is the special duty rule for professionals?
Duty of care is set by the profession. Be a conformist. Owe the patients or clients the care of an average member practicing in a similar community
What is the informed consent rule for doctors?
Doctors must act according to custom and must explain the risks of a medical procedure or treatment prior to going forward.
What is the test for informed consent in NY?
Whether a reasonable person in patient's position would have withheld consent to the treatment if the doc had disclosed. If so, P has a cause of action.
What are the exceptions to the duty of informed consent?
1. Commonly known
2. Patient declines info.
3. Patient is incompetent
4. If disclosure would be harmful to the patient.
Who do common carriers/ innkeepers owe a higher duty of care to?
Their passengers or guests. They will be liable for the slightest negligence.
What is the duty to undiscovered trespassers?
No duty. No matter what
What is the duty to discovered trespassers?
WRT to activities, RPP
WRT to Conditions
- all known, man-made deathtraps
What is the duty of care for a licensee?
Activities = RPP
Conditions, must protect from all known traps. (deathtraps and slightly dangerous)
What is the duty of care for invitees?
invitees are people in airports, stores, hospitals, office buildings

wrt activities, RPP.
wrt conditions- all reasonably knowable traps.
Can firefighters recover for injuries that are an inherent risk of their job?
What type of care are children entitled to?
Attractive nuisance doctrine means RPP if
1. dangerous condition on land
2. owner knows or should know children frequent the vicinity
3. condition is likely to cause injury
4. expense of remedying is sligh compared to magnitude of risk
How do you avoid liability for your dangerous conditions?
Warnings or fix it.
What is the NY distinctions WRT land entrance liability?
Don't use the CL distinctions. Owner must act like RPP under similar circusmtances. Keep the categories in mind when discussing whether the D behaved like a RPP. The Plaintiff's status is relevant to the foreseeability of precautions required to meet standard of RPP.
Explain the statutory standard of care?
The statute becomes the duty of care. Plaintiff can borrow the statute, show that Def breached and ask judge to treat it as negligence per se, ie, conclusive proof of duty and breach
What are two characteristics of the statutory duty of care
The statute in question will not in and of itself provide for civil or tort liability

The statute will be criminal or regulatory in nature
How does a plaintiff get to "borrow" the statutory standard of care?
Must prove: Class of person, Class of Risk
What is the exception to the statutory duty of care?
When Compliance is more dangerous than the violation
There is no duty to rescue. What are the narrowly tailored exceptions to that?
1. Pre-existing relationship (family, common carrier, business invitee)
2. D caused peril
3. Gratuitous rescuer, if you choose, you must do it like an RPP or liable.
4. In NY, a licensed health professional who voluntarily and gratuitously gives emergency is only liable for gross negligence.
Describe the negligent infliction of emotional distress.
Its when you almost got nailed. Its when you don't yourself actually suffer phsyical injury.
What must the P show to get negligent infliction of emotional distress?
1. Def committed negligence
2. You are in the zone of danger.
3. You suffered subsequent physical manifestations as a result of the emotional distress (nightmares don't count bc too easily to lie about)
What is the NY rule on bystander distress claims?
Available only for parents, spouse, or children. P was in the zone of danger and witnessed a negligent injury to a close family member
what is no fault insurance?
Its a system that subplants negligence rules in certain minor car accidents
How does no fault insurance work?
Everyone has to have insurance by law. SO if there's damages less than 50K, you don't go to court, you automatically collect. Everyone, including you, the negligent person, you all collect for your damages
Who is disqualified from collecting in no-fault insurance?
Car thieves, drunk drivers, fleeing felons.
What happens if I don't want to go the no fault insurance road?
WEll, you have to have sufferend an economic loss more than 50k or a serious injury (lost limbs, serious fracture, etc).

Its a risk though because you might get nothing.
How to phrase an essay on breach...
He breached his RPP conduct. He ran the red light and that's not reasonable because a reasonable person stops at a red light.
What do we mean when we say there's an inverse relationship between breach and duty?
The greater the duty, the less we really need to focus on the breach.
Describe Res Ipsa Loquitor?

What must P show? (2 things)
The thing speaks for itself. Guy getting hit with a barrel while walking down the street. Its a burden shifter from proving negligence to the defendant for proving he was not negligent

P must show 2 things
1. Accident is one normally associated with negligence of some kind.
2. Accident that occurred is usually due to the negligence of somebody in the D's position
What are the two types of causation?

what is the analysis used for the first one?
Factual and Legal. Always start in an essay first with factual. Factual is the link between the breach and the injury. The BUT FOR ANALYSIS is used
How do we handle the dilemma of the "but for" analysis with multiple defendants?
Think the two fires started by two D's, each of which would burned the P's house on its own. Instead of "But for" test, you use substantial factor test
How do you treat factual causation in unascertainable causes questions, ie. Summers v Tice who the fuck shot me in the eye scenario?
SHifts the burden of proof. Its up to the D's each to show that their breach was not the cause. If they can't do that, they are jointly liable.
Describe Proximate Cause
Its a legal construct for fairness. It has to do with foreseeability. WE think its fair only to make people pay for the foreseeable consequences of their carelessness
Describe the difference between Direct and Indirect Cause
Direct is pretty straight forward. Be wary of the bizarre and freakish scenario where car hits another car with dynamite in it

Indirect causes are more commonly tested. D commits a breach then other events take place and only after that, P suffers harm.
What are the 4 well-settled and frequently tested scenarios where the D is liabile for indirect causes? IN all of them you are liable because they are foreseeable, despite being remote.
1. INtevening Medical Negligence
2. Interving Rescuer Negligence
3. INtervening Protetion or Reaction Forces
4. Subsequent disease or accident (if you hurt someone and leave them in a weakened condition, you are liable)
What is the NY rule with reagrds to recoveries and insurance
The amount you get for damages from a tortfeasor will be reduced by however much you got from insurance.
What is the eggshell skull principle?
You take your plaintiff as you find them. You pay for all damages you caused. This only arises after all elements of the tort have been proven.

NB: it applies to all torts, not just negligence, including SL and Intentional.
What are the two main axi to view injunctions?
1. Mandatory (rip down fence) vs. Negative (don't do something)
2. Preliminary vs. Permanent
How does one get a permanent injunction?
1. Must establish liability- show all elements of any tort
2. Then a 4 part showing over and above liability
2a) no adequate remedy at law, money is not enough
2b)suffering an invasion of property interest or protectable right (this one is a given
2c) Injunction will be enforceable
(its a given with negative, but can be enforcement issues with mandatory injunctions depend on complexities
2d) balance the hardships
How does one get a preliminary injunction?
Freezes status quo

1 SHow likelihood of success on merits
2. Show that P will suffer irreparable injury if not given it.
Are injunctions and $ mutually exclusive
NO. You can get both.
What are the 3 affirmative defenses against injunctions?
1. Unclean hands (look, you are trying to get the court to do something extraordinary, so you better have clean hands)
2. Laches- it means prejudicial delay that fucks over the D
3. 1st Amend. (sup ct has roundly rejected the use of prior restraint.
Describe the Affirmative Defense of Contributory Negligence
Not a defense to intentional torts.

At CL, any negligence by P would completely bar recovery

Last Clear Chance permits a P to recover despite contrib. negl.
Describe How Comparative Negligence works
D offers evidence that P failed to exercise proper care for his own safety

Jury is instructed to weigh D and P fault against each other and assign a percentage reflecting degree of fault

Reduce P's recovery accordingly
Describe the Pure Comparative Fault system in place on MBE and NY
P always gets some damages, even if he bears the majority of fault.
What do we mean when we allow as an affirmative defense the D to say that the P "assumed the risk"
P must have known risk and voluntarily proceeded in spite of risk

can be express or implied. no assumption of risk when in cases of emergency, there's no alternative. Common carriers and public utilities may not limit liability by disclaimer. Does not apply to members of a class protected by statute and not a defense to intentional torts.
Is there SL for injuries caused by animals?
First bite of a domestic animal, no. Subsequent, yet bc you are on notice. SL for wild dangerous animals as well.
Describe UltraHazardous Activies (NB safety precautions are irrelevent and you get SL)
Its a question of law to be decided by judge.

An activity that cannot be made safe no matter how much care is taken.

Poses risk of severe harm to persons or property

Activity is uncommon in the community where it is being conducted.

Harm is the kind of danger anticipated from the ultrahazardous activity
What are some classic examples of Ultrahazardous activities?
highly dangerous chemicals or biological materials
nuclear energy or radiation.
How does WOrkman's Comp work in NY?
Entitle to recover without having to prove fault

ITs the exclusive remedy for employees hurt on the job.

You get: medical expenses, 2/3 of average weekly wage rate, if you die, statutory death benefits plus funeral expenses
What are the 5 frequently tested workman's comp cases?
1. if soley due to employee's negligence, he gets nothing and will likely get nothign in court
2 if employee intentionally injured himself, no workman's comp
3. If you get hurt in a voluntary, off-duty athletic activity
4. Illegal Activities ARE covered
5. Hose play usually is covered, if not too absurd
How does workman's comp work with claims not against your boss?
You can go after the equipment manufacturer and they can seek indemnity from your employer.

At jobsites with multiple firms, you can go after the ones that aren't yours.
What are the 4 elements of strict liability for products?
1. only merchants will be held SL
2. P has to show that the product is defective.
3. P must show that the product was not altered since it left D's hand
4. P must show that he was making a foreseeable use of the product.
What do we mean by, only merchants will be held strictly liable?
casual sellers are not merchants
service providers are not merchants
commercial lessors (like rental car companies) are merchants
merhcants go up and down the chain and you can sue them all
What are the 2 ways a P can show that a product is defective?
Manufacturing defect (mouse in the coke can)
Design Defect (Hypothetical Alternative Design HAD)
Must show that the HAD is safer, cost neutral, and practical
Can a product be defective simply because it lacks a warning?
Yes, of course.
How can P show that the product was not altered since it left the D's hands?
By showing that the product moved in ordinary channels.
What affirmative defenses are available in a products liability suit?
comparative responsibility, just like any negligence case.
What is a nuisance?
Its a substantial, unreasonable interference with another's ability to use or enjoy property he possesses or has an immediate right to posses

P recovers after balancing the interests, his ability to enjoy his land, other dudes ability to enjoy his land

public nuisance is an act that unreasonably intereres with the health, safety or property rights of the community. Private party can only sue if suffered unique damages not suffered by community at large.
Descirbe the boundaries of employer/employee
Main concept is not liable for things outside the scope of employment. NO INTENTIONAL TORTS LIABILITY Exception is for secuirty guards or tension filled jobs or overzeaalous cashier are action

Frolics, no, detours, yes

And never forget an employer can be liable for negligent hiring, all sorts of other things besides vicarious liability.
Describe vicarious liability in the context of the hiring party/independent contractor.
if indep contractor is on premises and injures invitees, then hiring party is liable.

NB, remember negligent hiring is STILL a cause of action
Describe vicarious liaiblity in context of auto owner and driver
Mainly not liabile on MBE, Mainly yes in NY

Exception on MBE is if doing an errand for driver

Never any liability for car rental companies.
Describe Vicarious liability in the context of parents and kids
Generally not liable, but parents are still liable for their own negligence, like leaving a gun around the house.
What are the three aspects of loss of consortium
Loss of services
loss of society
loss of sex