Torts

Front 1

what are the intentional torts

Back 1

1) battery

2) assault

3) false imprisonment

4) intentional infliction of emotional stress

5) trespass to land

6) trespass to chattel

7) conversion

Front 2

what is battery

Back 2

1) D must engage in harmful or offensive conduct
*bodily conduct is offensive if it is UNPERMITTED by a person of ORDINARY sensitivity (yes to stroking hair, NO to tapping on the shoulder)

2) contact must be with plaintiff's PERSON. (includes anything connected to P (purse, hat, dog on a leash, etc)

Front 3

does the D's body have had to be involved for it to be a battery

Back 3

no, poisoning a sandwich is battery - bodily contact occurs b/w sandwich and mouth

Front 4

does contact need to happen immediately for it to be a battery

Back 4

no, again, poison through sandwich and mouth s a battery

Front 5

what is assault?

Back 5

D must put p in apprehension of an IMMEDIATE BATTERY

Front 6

for assault, what does apprehension mean?

Back 6

knowledge, awareness, understanding NOT fear.

If D threatens, but couldn't actually complete battery (unloaded gun) -- the test is from P's perspective. Did P know gun was empty, if yes no assault; if no, still an assault

Front 7

for assault, what does it mean for it to be an immediate battery?

Back 7

threatening words, alone, lack immediacy and cannot constitute an assault; must be accompanied by conduct (weapons, fist shaking, moving toward someone)

even with conduct, accompanying words can negate immediacy (if you weren't X, i would Y)

Front 8

what is false imprisonment?

Back 8

1) D must engage in an act of restraint

2) P must be confined in a bounded area

Front 9

for false imprisonment, what is an act of restraint?

Back 9

1) typically physical obstructions

2) threats are sufficient restraint - but must act on a person of ordinary sensitivity

3) failure to act can also be an act of restraint if there was a pre-existing obligation to assist P in moving about (handicapped person)

4) act of restraint only exists if P knew about it, or is harmed by it (if neither condition is met, no recovery)

Front 10

for false imprisonment, what does it mean for P to be confined to a bounded area?

Back 10

1) keeping someone out of a space is not confinement

2) not bounded if there is reasonable means of escape that P can reasonably discover. If dangerous, disgusting, humiliating or hidden -- P will win.

Front 11

for false imprisonment, can P recover for damages for humilliation while falsely imprisoned?

Back 11

yes

Front 12

what is intentional infliction of emotional harm?

Back 12

1) D must engage in outrageous conduct, and

2) P must suffer severe distress (not mild annoyance, brief irritation)

Front 13

for intentional infliction of emotional harm, what constitutes outrageous conduct?

Back 13

1) exceeds all bounds of decency tolerated in a civilized society

2) mere insults, without other factors, is never outrageous enough

3) hallmarks of outrageousness include
a) when conduct by D is repetitive or continuous
b) when D is common carrier or innkeeper - can't be hostile
c) P is member of fragile class (kids, elderly, pregnant) and D knows it

4) If there's a particularly senstive P, he doesn't have a claim against D UNLESS D knows of sensitivity and acts for that reas

Front 14

what is trespass to land

Back 14

D must commit an act of physical invasion of land

Front 15

for trespass to land, what is physical invasion

Back 15

1) D can enter land/real estate by foot or on vehicle

2) D need not be aware he's on private property

3) D can throw/propeal tangible object onto P's land.

BUT - if A pushes B onto land, A is trespass

NOTE - physical invasion must be by tangible object, not intangibles (floodlights, music, smells)

Front 16

for trespass to land, what constitutes land

Back 16

1)NOT confined to surface of property. includes air above and soil below - out to a REASONABLE distance.

so, a ball that gets thrown across air in your yard IS a trespass

Front 17

what are trespass to chattel and conversion?

Back 17

intentional invasion of personal property.

intentional damage or taking away from you.

Front 18

how are trespass to chattel and conversion used.

Back 18

it is a mechanism for getting private, money damages for vandalism or theft.

Front 19

what is the difference b/w trespass to chattels and conversion

Back 19

the MAGNITUDE of the harm.

1) if amount of harm is relatively modest, then cause of action is trepass to chattels

2) if harm is significant/extensive, then its conversion

Front 20

So if minor harm, trespass to chattels, what is remedy?

Back 20

cost of repair

Front 21

if major harm, conversion, what is remedy?

Back 21

P gets full market value of asset; not just cost of repairs.

D then gets title at satisfaction of judgment. basically a forced sale.

Front 22

what are the affirmative defenses to intentional torts

Back 22

1) consent (cannot be induced by fraud)

2) protection privileges -- self defense, defense of others, defense of property

3) necessity

Front 23

who can consent

Back 23

Only P's with legal capacity can consent to tortious activities.

Kids can only consent to age appropriate torts

Front 24

what form can consent come in

Back 24

1) express consent

2) implied consent

Front 25

what is express consent to an intentional tort

Back 25

words spoken/written that give D permission to behave in challenged way.

Defense to ANY tort, except in cases of fraud/duress

Front 26

what is implied consent to an intentional tort

Back 26

comes up in 2 ways

1) custom or usage - if P goes to a place wher eminor tortious activities are routine (subway), P consents

2) based on D's reasonable interpretation of P's overt act (substantive thoughts of P are not relevant).

Front 27

what happens if P gives consent, but D exceeds consent of scope?

Back 27

you are liable for the tort. can't exceed scope of consent.

think doctor examples

Front 28

what are protective privileges

Back 28

to have a protective privilege look for

1) proper timing/chronology -- tort that D claims to be responding to must be IMMINENT OR IN PROGRESS (if tort is over, no protective privilege - i.e. no revenge)

2) reasonable belief that tort is about to be committed (reasonable mistake does not deny you the privilege)

Front 29

what does a protective privilege allow you to do

Back 29

use force - but only under the rule of symmetry/proportionality.

1) D can use deadly force, so long as human life is in jeopardy, or you reasonably believe it to be in jeopardy.

2) NY is a retreat state - so you must retreate before resorting to deadly force, unless in your home or you're a cop

3) deadly force is NOT allowed with respect to defending property. no deadly traps

Front 30

what is the defense of necessity

Back 30

1) public necessity

2) private necessity

Front 31

when can necessity defenses be used?

Back 31

only to defend against trespass to land, trespass to chattels, or conversion

Front 32

what is public necessity

Back 32

1) D invades P's property in an emergency to protect the entire community as a whole (confronting crisis, acting altruisitically, on behalf of many people) -- think mad dog in street.

Front 33

what sort of defense is public necessity

Back 33

an absolute defense - pay no damages for harm done to property

Front 34

what is private necessity

Back 34

D invades P's property in an emergency to protect an interest of his own (diverting disaster to self) -- e.g. bull chases you and you go onto someone else's property

Front 35

what sort of defense is private necessity

Back 35

LIMITED DEFENSE. 3 interrelated consequences

1) if harm to property, you pay for it

2) private necessity - D does not pay nominal or punitive damages

3) as long as emergency continues, D has right to stay on land in a position of safety. P can't throw D off land.

Front 36

What are the three elements of defamation

Back 36

1)D must make a defamatory statemetn that specifically identifies P that must adversely effect O's reputation

2)the statement must be published

3) damages, maybe?, depending on category of defamation

Front 37

what does it mean for D to make a defamatory statement that specifically identifies the P

Back 37

1) must adversely effect P's reputation

2) name calling is not enough

3) typically allegation/assertion of FACT that reflects negatively on character (honesty, violence, loyalty, competence, sexual propreity)

4) if opinion - rule is whether a reasonable listener would think factually based

5) statement need not be factually defamatory; additional context can be used to prove that it is defamatory


NOTE - a dead person cannot be defamed

Front 38

what does it mean for a statement to be published, for the purposes of defamation

Back 38

de minimus requirement. D must just tell one other person.

BUT - the more people D tells, the more damage P can get from D.

Publication need not be intentional, NEGLIGENCE will suffice (e.g. negligently leaving on loud speaker)

Front 39

for defamation, are damages needed?

Back 39

depends on the category of defamation (not for libel, or slander per se; yes for all other slander)

Front 40

What are the three types of defamation

Back 40

1) libel

2) slander
a) slander per se
b) other slander

3)*first amendment defamation

Front 41

what is libel

Back 41

Defamation WRITTEN down or otherwise captured in a permanent format (letter to friend, NY times)

*Does not require Damages to get to jury; can be used by P to offer persuasiveness, but NOT required to

Front 42

what is slander

Back 42

spoken defamation

Front 43

what is slander per se

Back 43

any spoken statemetn about P by D pertaining to

1) P's busines or profession

2) that P has committed a crime of moral turpitude

3) about unchasitty of a woman (any sexual activity by unmarried women)

4) statement that P suffers from loathsome disease (STD, leprosy)

5)NY - statemetn imputing homosexuality to someone.


*Does not require Damages to get to jury; can be used by P to offer persuasiveness, but NOT required to

Front 44

what is all other slander?

Back 44

everything else.

*P must prove damages (concrete ECONOMIC HARM) - loss of contract, fired, business deals lost,e tc -- not mental/emotional harm

Front 45

what are the defenses to defamation

Back 45

1) consent (express or implied)

2) truth

3) privileges - two kinds

Front 46

for defenses to defamation, what kinds of privileges are there?

Back 46

absolute privilege
and
qualified privilege

Front 47

for defenses to defamation, what is the absolute privilege

Back 47

based on IDENTITY/STATUS of speaker

1) spouse can defame 3rd person to spouse

2) statemetns made by officers of three branches of the government are privileged
a) this extends to anything said in court by attorneys or witnesses - in briefs, legislative hearings, etc

Front 48

for defenses to defamation, what is the qualified privilege

Back 48

based on PURPOSE of speech. Where there is a public interest in promoting candor.

E.g. letters of recommendation, credit reports, statemetn to cops.

To retain the privilege, D must observe 2 conditions
1) D must have reasonable belief in accuracy of statement (good faith, can't deliberately spread lies) and

2) D can't inject irrelevancies - must limit commetns to relevant matters

Front 49

when is first amendment defamation used?

Back 49

if what D wrote or said is a matter of PUBLIC CONCERN, P can only bring an FAD claim

Front 50

what does first amendement defamation require

Back 50

1) defamatory statement (adverse reputation effects)

2) publication

3) damages maybe

4) falsity of statement - P must prove that statemtn is false (burden shifts to P, not truth to D as affirmative defense)

5) that D acted with FAULT in making statement - other than in good faith or with reasonable basis.

Front 51

for FA defamation, what degree of fault is required in making false statement about matter of public concern?

Back 51

1) If P is public figure - D knew statemetn was false, and made it anyway, or behaved recklessly in making statement (in investigating truth/falsity) -- that is D acted with ACTUAL MALICE

1) IF P is private figure - it is enough to show that D was negligent. in ascertaining truth of falsity fo facts.

Front 52

what are the new york distinctions for when damages are required in case of libel and slander?

Back 52

Special damages are not required for Libel, UNLESS - defamatory only by extrinsic fact (no on its face) and NOT in one of slander per se categories

Special damages ARE required for Slander unless defamatory on its face, and in one of slander per se categories (i.e. not if defamatory on face an dnot slander per se; not if extrinsic fact and per se; not if extrinsic fact and not per se)

Front 53

What right to privacy does NY protect

Back 53

Just Appropriation of one's picture or name.

Action survives death, and may be commenced or continued by estate representatives (but does not protect partnerships/corporatoins)

Front 54

what are the defenses to ny's privacy/appropriation law

Back 54

1) prior wirtten consent

2) photographer exhibiting work unless continued after written objection

3) goods or a literary, musicial or artistic production that the manufacturer, dealer, author, composer or artist has sold or disposed of with his name, pciture, portrait used in connection with it.

Front 55

what are the laws of privacy on the mbe?

Back 55

1) appropriation

2) intrusion

3) false light

4) disclosure of private fact

Front 56

for privacy rights, what is appropriation

Back 56

1) D is going to use P's name or picture for a COMMERCIAL purpose

2) note - use of image/name in TV/magazine story is not enough, even if motivated by profit.

Front 57

what can D get if a violation of appropriation is found

Back 57

an injunction to avoid having picture/name used AND

damages for use

Front 58

what is the exception to the appropriation privacy right?

Back 58

1A implications if it is used for something NEWS WORTHY - then no appropriation

this exception is HUGE in ny.

Front 59

for privacy rights, what is intrusion

Back 59

invasion of P's SOLICITUDE in a way objectionable to the AVERAGE PERSON (spying, eavesdropping, peeping, wiretapping, video surveillance.

*P must be somewhere with expectatoin of privacy (e.g. car.home, NOT whispering at a cocktail party).

*Does NOT require D to trespass -- telescope into someone's apartment is an intrusion

Front 60

for privacy rights, what is false light

Back 60

Facts deemed to present P in false light and if it attributes to him
1) views he did not hold OR
2) actions that he did not take

Front 61

for privacy rights, what is required for a finding of false light

Back 61

1) widespread dissemination of a material misrepresentation about P that would be objectionable to the average person
*this is much more demanding a standard than publication standard for defamation

2) misinformation about P being spread all over town could be defamatory, but could also be non-defamatory statements
*e.g. misrepresenting P's political/ethcial/religious beliefs

nOTE - b/c this is not an intentional tort, good faith belief in truth is NOT a defense

Front 62

for privacy rights, what is disclosure of a private fact

Back 62

DEF - widespread dissemination of confidentional information about P that would be objectionable to the AVERAGE person (e.g. photocopying and passing along medical records).

EXCEPTIONS
1) can be dislcosed if news worthy.

Look for dual fact patterns - in closet at work, not in private life -- this is not a confidential issue b/c go to public rally's!

Front 63

what are the affirmative defenses to privacy claims>

Back 63

1) consent is a defense to all four (express and implied)

2) absolute and qualified defamation privileges are a defense to false light and dislcosure
*absolute - spouse and govt. official
*qualified - public policy in promoting candor

Front 64

what are the economic torts

Back 64

1) fraud
2) prima facie tort
3) inducing breach of K4) other - negligent misrepresentation, etc.

Front 65

what is fraud

Back 65

comes up in commercial transactions, suorrounding purchase/sale of items generally

5 elements, no affirmative defenses
1) D must make a misrepresentation of a fact (silence is not enough, must be an affirmative misstatement)

2) intent or recklessness concerning misstatemetn -- good faith or reasonable misstatement is not fraud

3) purpose of statemetn must be to induce reliance of P - and statement must be central to transaction

4) P must actually rely on statemetn

5) P must suffer economically - must be damages (e.g. you overpaid

Front 66

what is a prima facie tort?

Back 66

intentional infliction of pecuniary harm w/o justification

1) malicious devious activity to hurt someone commercially

2) deliberately selling goods below cost to drive out competition

Front 67

what is inducing breach of K

Back 67

D is aware of K b/w P and 3Ps and meddles in bargain and persuades 3P to walk away from it.

Front 68

what must be proven for inducing breach of K

Back 68

1) must prove valid K, not cancelable at will

2) must be knowledge of K by D

3) D must engage in persuasion, inducement convincing 3P to abandon K

4) there must be a subsequent breach

Front 69

is there ever a defesne to inducing breach of K

Back 69

YEs - usually defense of privilege granted to some people to interfere with Ks- that is people in special relationship to contracting partes

Front 70

what are the four elements of negligence

Back 70

duty

breach of duty

causation (proximate and cause in fact)

harm/damages

Front 71

To WHOM do you owe a duty of care (duty of care is obligation to take safety precautions when you engage in activities)

Back 71

DUTY is OWED to FORSEEABLE VICTIMS of CARELESSNES

but, NOT to
1)unforseeable victims (closer you are, more likely duty)
2) people not in zone of danger created by carelessness
3) BUT resuers are not barred from distance

Front 72

what is ny's rule on fetal injuries

Back 72

If D's negligence causes bodily impact on pregnant women. . .
1) if baby is born with injuries, then child has tort cause of action
2) if baby is born still born/miscarriage - mother can recover for emotional distress

2) medical malpractice - if doctor fails to recognize high likelihood of birht defects, parents can have kid and kid is born impaired
*can recover for cost of caring for child (economic, school, meds), but not for emotional distress

3) botched sterilization procedure on men, no recovery

Front 73

how MUCH care is owed?

Back 73

1) owe ot other peoplethe care of a reasonably prudent person acting under similar circumstances

2) this is an objective standard implemented by jury - it doesn't matter if you're not the average person (if you're stupider, emotionally retarded, etc)

Front 74

Is MORE or LESS care ever owed than that of a reasonably prudent person?

Back 74

YES.

1) superior skills or knowledge - if D possesses superior skill or knowledge, standard becomes reaosnably prudent person with superior skills or knowledge (can be race care driver, or just a guy who knows a corner really well b/c he's lived there for 20 years

2) physical attributes - if blind or in wheelchair, you owe duty of care of reasonably prudent person with physical attribute

Front 75

What are the SIX SPECIAL STANDARDS for how much care is owed?

Back 75

1) kids

2) professional defendants

3) landowners

4) statutory standard of care

5) duties to act affirmatively

6) negligent infliction of emotional duress

Front 76

what is the special standrad of care for kids?

Back 76

1) children under four, owe ZERO standard of care - they cannot be negligent

2) 14-18 -- owe standard of care of hypothetical child of similar age, experience, and intelligence acting under similar circumstances
*very subjective, customized flexible

Front 77

are there any exceptions to the special standard a kid owes

Back 77

yes, if kid is engaged in adult activity. normally driving a motorized vehicle

Front 78

what is the special standard of care for professional defendants (usually med mal and doctor)

Back 78

standard of care from professional to client is care of average member of profession practicing in similar community

Front 79

for special standard of care for professional defendants, what does "average member of the profession" mean

Back 79

real world standard, empirical standard, requires factual investigation

Front 80

for special standard of care for professional defendants, what does "similar community" mean

Back 80

1) similar geographic community - big city v. small city, rural towns, etc.

2) specialists -- community is all specialists in same field across the country.

Front 81

for special standard of care for professional defendants, what is "informed consent" principle

Back 81

dr. must explain risks and procedures so patients can decide whether to go forward.

EXCEPT
1) no need to explain commonly known risks
2) no need to explain if patient declines info
3) no ned to disclose if patient is incompetent
4) no need to disclose risks if dislcosure itself would be harmful.

Front 82

for special standard of care for professional defendants, how do you educate jury on professional standard of care?

Back 82

through expert witnesses

Front 83

For special standard of care, what duty is owed by POSSESSORS OF LAND to those who come onto the land? I.e. someone comes on land, gets harmed, sues

Back 83

Duty comes from analyzing two key issues

1) how did entrant get hurt?

2) what kind of entrant is it?

Front 84

For special standard of care, possessors of land, HOW can an entrant be HURT?

Back 84

1) by activity being conducted on land by a possessor or one of possessor's employees, OR

2) by a dangerous condition on the land

Front 85

For special standard of care, possessors of land, HOW can an entrant ENTER?

Back 85

1) undiscovered trespasser - comes onto land w/o permission; and possesors do not know he's there

2) discovered trespasser - trespasser who should have been anticipated/expected

3) licensee - someone who comes onto land w/ permission for their own purpose and don't confer economic benefit on owner (social guests)

4) invitee - people who enter land for commercial purposes or land is open to the public at large (park, museum, etc)

Front 86

What duty is owed to an UNDISCOVERED TRESPASSERfor harm due to . . .

1) an activity

2) a dangerous condition

Back 86

NONE! No duty of care owed to an undiscovered trespasser! no negligence

Front 87

What duty is owed to an DISCOVERED TRESPASSER for harm due to . . .

1) an activity

2) a dangerous condition

Back 87

Activities:
Possessor owes duty of a HYPOTHETICALLY PRUDENT PERSON STANDARD acting under similar circumstances

Dangerous Condition: Possessor owes duty of care, if 4 part test is met

1) condition is an artificial condition built by a human

2) condition is highly dangerous - can kill/maim someone

3) concealed condition w/r/t discovered trespasser (trespasser cannot see/appreciate danger for self) AND

4) possessor had advanced knowledge of condition

So, possessor owes duty to protect against all KNOWN, MAN-MADE, DEATH TRAPS ON LAND

Front 88

What duty is owed to an LICENSEE for harm due to . . .

1) an activity

2) a dangerous condition

Back 88

Activities:
Possessor owes duty of a REASONABLY PRUDENT PERSON STANDARD acting under similar circumstances

Dangerous Condition: Possessor owes duty of care, if 2 part test is met

1) condition is concealed from licensee(licensee cannot see/appreciate danger for self) AND

2) possessor knew in advance of condition

So, possessor owes duty to protect against all KNOWN, TRAPS ON LAND (natural/artificial; deadly/not)

Front 89

What duty is owed to an INVITEE for harm due to . . .

1) an activity

2) a dangerous condition

Back 89

Activities:
Possessor owes duty of a REASONABLY PRUDENT PERSON STANDARD acting under similar circumstances

Dangerous Condition: Possessor owes duty of care, if 2 part test is met

1) condition is concealed from invitee(cannot see/appreciate danger for self) AND

2) possessor either knew in advance of condition OR could have discovered through reasonable inspection (duty to inspect!)

So, possessor owes duty to protect against all KNOWN, TRAPS ON LAND (natural/artificial; deadly/not)

Front 90

can firefighters and cops recover for injuries on from going onto property

Back 90

No. that is an inherent risk of job.

Front 91

what about kids and land?

Back 91

kids are entitled to a reasonably prudent standard with regard to artificial conditions on the land.

if something invites children onto land -- but can consider the ability of kids to protect themselves.

Front 92

if a duty is owed to an entrant about a condition, how can the duty be satisfied?

Back 92

1) by fixing problem

2) by giving warning

Front 93

NY - What duty is owed to entrant to land by possesors?

Back 93

For all entrant status people,

Duty of reasonably prudent person under circumstances is owed.

Doesn't depend upon status of entrant, BUT reasonably purdent people make greater efforts for paying customers, invited guests, etc. than trespassers

Front 94

special duty standards - statutory standard of care

statute addresses standard of care at issue, but statute is about criminal/regulatory nature, NOT for civil tort suit.

Can P borrow statute? use duty of care for this case?

Back 94

We let P borrow standard of care if
1) P can show he is member of class of person that statute seeks to protect, AND

2) P also has to show that accident which occurred is within the class of risks that statute seeks to prevent

**Class of Person**Class of Risk** TEST

Front 95

are there any exceptions to the rule allowing for the borrowing of a standard in a statute?

Back 95

yes,
1) if compliance with statute is more dangerous than violation, don't borrow even if test is met - e.g. crossing lane to avoid hitting person

2. if compliance was impossible under statute, don't borrow

Front 96

Special situation -
when do you have a Duty to act Affirmatively?

Back 96

1) If D put P in peril, then there IS a duty to rescue, even if D wasn't negligent (careful, but car accident anyway)

2) pre-existing relationship b/w D and P - family, innkeeper/common carrier, employer/employee, land possessor/invitee

3) if D w/o a duty volunteers to rescue P and screws it up
*many states have a good samaritan exception to this rule
*NY - if professional (doctor, nurse, veterinarian), and help out, can't be liable for simple negligence, but can for gross negligence

NOTE - if duty to rescue arises in these situations - it is a duty to use reasonable care under the circumstances (no need to risk your life)

Front 97

special situatoin - negligent infliction of emotional distress (careless D, with no direct trauma to P, but P gets bummed

Back 97

P can recover for emotional duress if
1) P was in zone of danger (near miss) AND
2) P has subsequent physical manifestations of distress
*seconds or weeks later
*heart attack/miscarriage/skin rash

OR

1) Special situations where court allows P to recover in absence of physical injury, e.g. mishandling of a relatives corpse

Front 98

special situation -- NY rule - on bystander distress claim

Back 98

if there is an unpleasant emotion suffered by P (grief/sorrow/horror) - distressed party can recover
1) if had a ringside seat to negligently inflicted injury on close family member
*very narrowly interpreted in NY - close proximity - you must be in the zone of danger
*close family member - spouse, parent, child

Front 99

How do you do the breach analysis on the exam?

Back 99

P must identify specific wrongful conducty by D and explain why wrongful.

P must demonstrate
1) factual wrongful conduct
2) argument for why wrong, even if obvious.

Breach is factual issue flowing from problem.

The more specific the duty, the less you have to say about the breach.

Front 100

what is Res Ipsa Loquitor?

Back 100

if P lacks info about what D did that was wrong (state of factual ignorance/vacuum) - you may need this.

Front 101

what is the rule of res ipsa loquitor

Back 101

1) P must show (argue or appeal to common knowledge) 2 prongs in lieu of direct evidence that D was wrong

a) accident is the kind that is normally associated with negligence (sometimes expert witness will be used, and

b) accident is type that normally occurs due to negligence of someone in D's position (probability argument)
*show that D had control over instrumentality/object causing injury.

If P can prove both, issue goes to the jury (very rarely directs a verdict)

Front 102

Is res ipsa loquitor available where more than one person is control of instrumentality

Back 102

not usually, BUT - if one D had control over entire site, than yes.

Front 103

what are the two prongs of causation

Back 103

1) factual

2) proximate cause.

DO FACTUAL CAUSE FIRST.

Front 104

what is factual cuase

Back 104

P must establish a connection or linkage b/w breach that P identified and ultimate injury

"BUT FOR" D's breach, accident would not have happened.

Front 105

what is the rule for factual cause if there are multiple defendants

Back 105

1) multiple D's and merged causes -- substantial factor test - was D's breach a substantial factor contributing to P's injuries?

If yes, then both jointly liable (think 2 fires combine to burn house down)

2) unascertainable causes - simultaneous acts of negligence make true cause unascertainable - burden shifts to D to prove that he is not responsible. if can't then jointly liable (2 guns, 1 accidentally hit P)

Front 106

what is a superseding force?

Back 106

one that breaks the causal chain b/w the initial wrongful act and the injury and thus the superseding cause becomes the immediate cauase and relieves 1st actor of consequences

Front 107

what is proximate cause?

Back 107

"D is liable for all harmful results that are normal incidets of and within the increased risk caused by his acts"

Serves as limitation in liability situation - liability only in situations where it is fair/forseeable

RULE - something is proximate cause of an injury when it is the forseeable consequence of that action

Front 108

What types of proximate cause are there?

Back 108

1) direct cause - D breaches, P suffers injury immediately -- consequences are almost always forseeable, unless freakish and bizarre result. (intuition here)

2) indirect cause -- D breaches, stuff happens in middle, P is harmed

a) intervening medical negligence - D is still liable

b) intervening negligent rescue - if rescue is forseeable, D is still liable

c) intervening protection or reactive forces - D is still liable of course people freak out

d) subsequent disease or accident - liable for everything, if you leave someone in weakened state - forseeable they will get more injuries

3) REALIZE - independnet intervening forces are still forseeable and DO NOT cut off Ds liability where D's negligence increased the risk that such forces would harm P (whether intervening act cuts off D's liability is determined by forseeability)

Front 109

what is the rule on damages?

Back 109

1) once all elements of a tort are shown, D must pay all damages suffered by P even if great in scope
*take your victim as they come!*applies to all torts*eggshell skull*

2) Collateral source rule - tort recoveries are reduced by sum/awards from other sources (including P's own insurance) -- NY!!! uses!!!

Front 110

what are the affirmative defenses?

Back 110

1) comparative fault, comparative neglignece

Front 111

what is comparative fault, comparative negligence

Back 111

1) D must offer evidence that P failed to exercise proper care for his own safety (reasonable care)

2) if D can do this, jury is instructed to compare D and P's negligence and assign % of fault to each

3) P's recovery will be decreased by % of his own faults

Front 112

what kinds of comparative negligence are there?

Back 112

1) pure comparative negligence (NY) - go strictly by #s ans P always recovers something
*NY - except if P is invovled in serious criminal activity at time of accident, then barred

2) Modified/partial comparative - P's fault <50%, then P's fault reduces recovery; if >50% fault, P gets nothing!

Front 113

what is contributory negligence?

Back 113

under traditional rules, P's contributory negligence, is a complete defense.

If P is at all negligent too, P gets nothing!

Front 114

what is the last clear chance doctrine

Back 114

exception to contributory negligence --

permits P to recover despite his own contributory neglignece, IF D had last clear chance to avoid accident and failed to do so -- if so, then D is liable for negligence

Front 115

when is there strict liability for a cause of action?

Back 115

1) injuries caused by animals

2) ultra-hazardous activities

3) products liabilities

Front 116

what are rules for SL for injuries caused by animals?

Back 116

1) domesticated animals - no SL, UNLESS if you have knowledge of vicious propensities of your domesticated animals

2) trespassing cattle - SL no matter how careful you've been

3) wild animals - SL no matter how careful.

Front 117

what are rules for SL for injuries caused by ultrahazardous activities

Back 117

ultrahazardous if
1) can't be made reasonably safe given existing tech

2) activity imposes a severe risk of harm

3) activity is uncommon in area where being conducted

MBE - Anything with blasting explosives dynamite -- or highly dangerous/toxic chemical or biological agents -- anything with nuclear energy or radiation

REALIZE - if SL, safety precautions don't matter

Front 118

What about Strict products liability? (realize lots of products liability aren't strict)

Back 118

1) D is merchant

2) Product is defective (design or manufacturing)

3) Product was not altered since left D's hands

4) must show P was making a forseeable use of product

Front 119

when will strict products liability be applied?

Back 119

most courts will not extend it to cases where only economic loss is suffered by P (i.e. not accopmanied by a physical harm to P)

Front 120

for strict products liability, what does it mean for someone to be a merchant?

Back 120

merchant is someone who routinely deals in goods of this type

1) casual sellers are not merchants

2) service providers (hospitals, law firms, restaurants, medical officers) even if make goods available are not merchants

3) commercial lessor IS a merchante, even though doesn't part with title to goods (car rental) - is SL

4) every merchant in a distribution chain is merchant and can be SL (multiple D's can be on the hook!) - no privity of K required, can sue anyone up the chain

Front 121

for strict products liability, how do you know if a product is defective -- manufacturing defect?

Back 121

manufacturing defect exists if product is different from all others that came off the assembly line in a way that makes it more dangerous than consumers would expect -- one in a million!

safety precautions are irrelevant.

Front 122

for strict products liability, how do you know if a product is defective -- design defect?

Back 122

design defect exists if there is an alternative way to build product (hypotethetical alternative design).

So, if hypothetical design meets these three tests, this version is defective
1)HAD is safer than product marketed
2) HAD is about the same price as product marketed
3) HAD is practical and doesnt' make product hard to use or undermine its functions.

**IF there is a HAD, product warnings aren't enough to escape liability888

Front 123

for strict products liability, how do you know if a product is defective -- what is the relevance of product warnings?

Back 123

REquried if
1) product cannot be physically redesigned to be safer in cost neutral and practical way AND
2) it has residual risk not apparent to consumers

If it lacks good (clear, big, obvious) warnings, then it is defective

Front 124

for strict products liability, how do you show that product has not been ALTERED?

Back 124

If travelled in ordinary channels of distributoin, it is assumed it was not altered.

Free passon this issue. D must raise it if there is evidence

Front 125

for strict products liability, how do you know if a forseable use has been made?

Back 125

NOT limited to proper and intended use of a given product.

Many technical misuses are forseeable.

Front 126

does comparative neglience apply to SL claims?

Back 126

yes - now all foolishness/failure to follow instructoins, ignoring of obvious/dangerous situation by P will be factored in by jury and % assigned to recovery

ALSO -- assumption of the risk!

Front 127

what is assumption of the risk?

Back 127

Requires P to
1) know of risk, AND
2) voluntarily assume the risk (ignore the warnings)

Front 128

what is a nuisance?

Back 128

D will be found to have committed a nuisance if its activities interfere with P's ability to use or enjoy P's own land to an unreasonable degree

Front 129

for nuisance claims, how do we determine if something is a reasonable use?

Back 129

courts balance the interests -- D also has right to use land as he sees fits, so long as abiding by applicable zoning laws

In fact, conduct consistent with zoning ordinance permits is highly persuasive evidence that it is not a nuisance

Front 130

what sort of mens rea is required by D for a nuisance claim?

Back 130

conduct giving rise to nuisance claim can be negligently, intentional, or even in good faith. D's intent is NOT part of analysis.

Front 131

what is vicarious liability?

Back 131

if X goes out and commits a tort (battery, negligence, defamation) - and victim sues X (primary tortfeasor) and Y (a primary passive party)

Front 132

when does vicarious liability come up

Back 132

certain relationships,
e.g.
1)employer/employee
2) car owner and driver
3) contractor subcontractor
4) parents-kids

Front 133

so what does vicarious liability do?

Back 133

liability flow from relationship bw/ purely passive party and active tortfeasor to victim

Front 134

what is the rule for vicarious liability AND employer/employee relationsihps -

Back 134

employer is liable for acts of employee committed within scope of employment

1) departures from work - frolic v. detour (minor departures are within scope of work, major are not)

2) intentional torts- outside scope of employment, except
a) if boss authorizes employee to use force as part of job, e.g. bouncer
B) job creates friction (debt collector)

3) if employee is acting ot serve employer's purposes, but is misguided or overzealous, still vicarious liability.

Front 135

what is the rule for vicarious liability AND car owner/driver-

Back 135

car owner is not liable for torts of drivers, EXCEPT
1) if driver is doing an errand for owner or
2)if state has permissive use statute

NY - Owner is vicariously liable for all torts committed by drivers driving with permission, EXCEPT in car rental situations.

Front 136

what is the rule for vicarious liability AND independent contractor/hiring party relationsihps -

Back 136

hiring party is not vicariously liable for torts of independent contractor EXCEPT if land possesor hires and independent contractor hurts an invitee

Front 137

what is the rule for vicarious liability AND parents/kids relationsihps -

Back 137

parents are NOT vicariously liable for torts of kids (but realize parent can be liable for kids actions through negligence, etc. if not purely passive party -e.g. leave guns lying around is negligence)

NY - exception for torts with max. of $5k, parents are vicariously liable

Front 138

general note on vicarious liability

Back 138

shouls always be last possible theory. first see if D is liable for his own conduct (neglient entrustment, failure to investigate, etc)

Front 139

multiple co-defendants - what is the rule of joint and several liability?

Back 139

each tortfeasor is liable to for entire damages

realize - note ntirely just - b/c some Ds will not have enough money, or only one will be liquid, etc

Front 140

multiple co-defendants - what is the rule of joint and several liability -- any exceptions (when one D can get all money back from another D)

Back 140

1) vicarious liaiblity - purely passive party can get all his money back from active tortfeasor

2)sl claim for defective product - non-manufacturer can get all money back from manufacturer

Front 141

what is loss of consortium

Back 141

In any case where victim of tort is married, uninjured spouse of victim gets a separate tort claim (gender neutral) which allows uninjured spouse to recover on

1) loss of services - cooking, cleaning housework

2) loss of society, companionship

3) loss of sex

Front 142

what are gratuitous bailments?

Back 142

gift-loan of something. bailor has duty to inform bailee of known dangerous defects

neither slight duty, nor SL

duty is not fulfilled by telling someone else to tell bailee

Front 143

what are bailments for mutual benefit?

Back 143

bailee requried to exercise ordinary due care -- liability on bailee will only be imposed if bailee is negligent

Front 144

when is a bailee liable to owner?

Back 144

liable for conversion if bailee uses chattel in such a amanner as to constitute a material breach of the bailment agreement, e.g. substantial interference with bailor's possession