Torts

Front 1

What torts can transferred intent be applied to?

Back 1

1- Assault
2- Battery
3- False Imprisonment
4- Trespass to Land
5- Trespass to Chattels

Front 2

What are the intentional torts to the person?

Back 2

1- Assault
2- Battery
3- False Imprisonment
4- Intentional Infliction of Emotional Distress

Front 3

Intentional torts require what basic elements?

Back 3

1- Act
2- Intent
3- Causation

Front 4

What is the definition/elements of battery?

Back 4

Harmful of offensive contact to plaintiff's person.
Elements:
1- Act: harmful or offensive contact to plaintiff's person
2- Intent
3- Causation

Front 5

What is the definition/elements of assault?

Back 5

An act by defendant creating a reasonable apprehension in plaintiff of immediate harmful or offensive contact.
Elements:
1- Act creating reasonable apprehension in P of immediate harmful or offensive contact to P's person
2- Intent
3- Causation

Front 6

What is the definition/elements of false imprisonment?

Back 6

An act or omission that confines or restrains plaintiff to a bounded area.
Elements:
1- Act: or omission that confines or restrains the P to a bounded area
2- Intent: of D to confine or restrain the P to a bounded area
3- Causation
~ Plaintiff must know of the confinement or be harmed by it; there must be no reasonable means of escape known to the plaintiff.

Front 7

What is the definition/elemens of Intentional Infliction of Emotional Distress?

Back 7

An act amounting to extreme or outrageous conduct that causes severe emotional distress.
Elements:
1- Act amounting to extreme and outrageous conduct
2- Intent: to cause P to suffer severe emotional distress, or recklessness in that regard.
3- Causation
4- Damages - severe emotional distress (actual damages are required but not physical injury)

Front 8

What is necessary for causation in bystander cases for Intentional Infliction of Emotional Distress?
3 elements

Back 8

When the D intentionally causes physical harm to a third person and the D suffers severe emotional distress because of it, the P may recover by showing EITHER the prima facie case elements of emotional distress, or:
1- The P was present when the injury occurred to Third person
2- The P was a close relative of the injured third person
3- The D knew that the P was present and a close relative of the injured person
~ note that IIED is the only intentional tort to the person that requires damages

Front 9

What are the Intentional Torts to Property?
3 of them

Back 9

1. Trespass to Land
2. Trespass to Chattels
3. Conversion

Front 10

What is the definition/elements of Trespass to Land?

Back 10

Physical Invasion of the Real Property of Another.
Elements:
1- Act of physical invasion of P's real property
2- Intent: on D's part to bring about physical invasion
3- Causation

Front 11

What is the definition/elements of Trespass to Chattels?

Back 11

An act that interferes with another's right of possession in a chattel.
Elements:
1- Act that interferes with plaintiff's right of possession in the chattel
2- Intent: to perform the act bringing about the interference
3- Causation
4- Damages

Front 12

What is the definition/elements of Conversion?

Back 12

An act that interferes with another's right of possession in a chattel that is so serious as to warrant paying the chattel's full value.
Elements:
1- An Act of Interfering with P's right of possession serious enough to warrant payment of full value
2- Intent: to perform the act bringing about the interference with P's right of possession
3- Causation

Front 13

What type of conduct will satisfy the intent requirement for Intentional Infliction of Emotional Distress?

Back 13

Unlike for other intentional torts, recklessness as to the effect of defendant's conduct will satisfy the intent requirement.

Front 14

What type of damages are required for IIED?

Back 14

Actual damages (severe emotional distress), not nominal damages, are required. Proof of physical injury is not required.

Front 15

What are the remedies for Conversion?

Back 15

Plantiff may recover damages (fair market value at the time of the conversion) or possession (replevin).
~ Only tangible personal property and intangibles that have been reduced to physical form (e.g., a promissory note) are subject to conversion

Front 16

What are the defenses to Intentional Torts?

Back 16

1. Consent
2. Self-defense, Defense of Others, Defense of Property
3. Privilege of Arrest
4. Necessity
5. Discipline

Front 17

Defendant is not liable if plaintiff expressly consents to Defendant's conduct. What are the exceptions?

Back 17

(i) Mistake will undo express consent if defendant knew of the mistake and took advantage of it;
(ii) consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter; and
(iii) consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation.

Front 18

WHat is implied/apparent consent?

Back 18

Apparent consent is that which a reasonable person would infer from custom and usage or plaintiff's conduct, e.g., normal contacts inherent in body-contact sports, ordinary incidental contact, etc.
~ Note that Consent implied by law arises where action is necessary to save a person's life or some other important interest or property.

Front 19

What is necessary for Consent?

Back 19

Capacity. Individuals without capacity are deemed incapable of consent, e.g., incompetents, drunken persons, and very young children.

Front 20

What is the privilege of self-defense?

Back 20

When a person reasonably believes that she is being or is about to be attacked, she may use such force as is reasonably necessary to protect against injury.

Front 21

Is it necessary to attempt to escape before using the self-defense privilege?

Back 21

One need not attempt to escape, but the modern trend imposes a duty to retreat before using deadly force where this can be done safely, unless the actor is in her home.

Front 22

Is mistake allowed for the privilege of self-defense?

Back 22

Yes - A reasonable mistake as to the existence of the danger is allowed.

Front 23

How Much Force May Be Used for the privilege of self-defense?

Back 23

One may use only that force that reasonably appears to be necessary to prevent the harm (including deadly force). If more force than is reasonably necessary is used, the defense is lost.

Front 24

When is the privilege of Defense of Others available?

Back 24

One may use force to defend another when the actor reasonably believes that the other person could have used force to defend himself.

Front 25

Is a mistake allowed as to the Defense of Others?

Back 25

A reasonable mistake as to whether the other person is being attacked or has a right to defend himself is permitted.

Front 26

How much force is allowed for the privilege of Defense of Others?

Back 26

The defender may use as much force as he could have used in self-defense if the injury were threatened to him.

Front 27

When is the Defense of Property available?

Back 27

One may use reasonable force to prevent the commission of a tort against her real or personal property.

Front 28

Must a request to desist be made in the Defense of Property?

Back 28

A request to desist or leave must first be made unless it clearly would be futile or dangerous.

Front 29

May the defense of property privilege be used when in hot pursuit?

Back 29

Yes. The defense does not apply once the tort has been committed; however, one may use force in hot pursuit of another who has tortiously dispossessed the owner of her chattels because the tort is viewed as still being committed.

Front 30

When is the right to defend property superseded?

Back 30

This defense is not available against one with a privilege. Whenever an actor has a privilege to enter on the land of another because of necessity, recapture of chattels, etc., that privilege will supersede the privilege of the land possessor to defend her property.

Front 31

Is mistake allowed as to the defense of property?

Back 31

A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required.
A mistake is not allowed as to whether the entrant has a privilege (e.g., necessity) that supersedes the defense of property right, unless the entrant conducts the entry so as to lead defendant to reasonably believe it is not privileged.

Front 32

How much force may be used in defending one's property?

Back 32

Reasonable force may be used. However, one may not use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm.

Front 33

Can one reenter land to recover real property?

Back 33

At common law, one could use force to reenter land only when the other came into possession tortiously. Under Modern law, there are summary procedures for recovering possession of real property. Hence, resort to self-help is no longer allowed.

Front 34

What is the Rule as to the Recapture of Chattels?

Back 34

The basic rule is the same as that for reentry of land at common law: when another's possession began lawfully (e.g., a conditional sale), one may use only peaceful means to recover the chattel. Force may be used to recapture a chattel only when in hot pursuit of one who has obtained possesion wrongfully, e.g., by theft.

Front 35

What is required for a recapture of chattels defense?

Back 35

Timely Demand - A timely demand to return the chattel is first required unless clearly futile or dangerous.
Recovery only from Wrongdoer - The recapture may be only from a tortfeasor or some third person who knows or should know that the chattels were tortiously obtained. One may not use force to recapture chattels in the hands of an innocent party.

Front 36

When is an owner privileged to enter onto the land of a wrongdoer to recover chattels?

Back 36

When chattels are located on the land of the wrongdoer, the owner is privileged to enter on the land and reclaim them at a reasonable time and in a reasonable manner, after first making a demand for their return.

Front 37

When is an owner privileged to enter onto the land of a innocent party to recover chattels?

Back 37

Similarly, when the chattels are on the land of an innocent party, the owner may enter and reclaim her chattel at a reasonable time and in a peaceful manner when the landowner has been given notice of the presence of the chattel and refuses to return it. (As noted above, the chattel owner's right of recapture supersedes the landowner's right to defend his property.) However, the chattel owner will be liable for any actual damage caused by the entry.

Front 38

What about when the chattel is on the land through the owner's fault?

Back 38

If the chattels are on the land of another through the owner's fault (e.g., negligently letting cattle wander), there is no privilege to enter on the land. They may be recovered only through legal process.

Front 39

Is mistake allowed as to the recapture of chattels?

Back 39

Generally, no mistake regarding defendant's right to recapture the chattels or enter on the land is allowed.
~ However, shopkeepers may have a privilege to detain for a reasonable period of time individuals whom they reasonably period of time individuals whom they reasonably believe to be in possession of shoplifted goods.

Front 40

How much force may be used to recapture chattels?

Back 40

Reasonable force, not including force sufficient to cause death or serious bodily harm, may be used to recapture chattels.

Front 41

Is mistake available for misdemeanor arrest?

Back 41

If the arrest is for a misdemeanor, it is privileged only if for a breach of peace and if the action is committed in the arresting party's presence.

Front 42

Is mistake available for felony arrest?

Back 42

For a felony arrest, a police officer may make a reasonable mistake.
~ Citizens may make a reasonable mistake regarding the identity of the felon, but not regarding whether the felony occurred. (the felony in fact must have been committed and the citizen must reasonably believe that the person he arrests has committed it).

Front 43

What degree of force is allowed for felony arrests; for misdemeanor arrests?

Back 43

For felony arrests (police officer or citizen), that degree of force reasonably necessary to make the arrest is allowed; deadly force is available only when the suspect poses a threat of serious harm.
~ Note for misdemeanor arrests (police officer or citizen), the standard is that degree of force reasonably necessary to make the arrest, but never deadly force.

Front 44

What is the standard for the privilege of Necessity?

Back 44

A person may interfere with the real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it.

Front 45

What is the rule on the privilege of Necessity?

Back 45

A person may interfere with the real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it.

Front 46

What are public and private necessity? What is the effect of the distinction?

Back 46

(i) Public - when the act is for the public good; and
(ii) Private - when the act is solely to benefit any person or any property from destruction or serious injury.
~ Under private necessity, the actor must pay for any injury he causes.
~ Note that Necessity is a defense only to property torts.

Front 47

What are the elements of Common Law Defamation?

Back 47

Remembered by D.O.P. and Damages.

Elements:
(i) Defamatory language (on part of D - i.e., language tending to adversely affect one's reputation.)
(ii) "Of or concerning the plaintiff" (i.e., language that would identify the P to a reasonable reader, listener, viewer)
(iii) Publication thereof by defendant to a third person; and
(iv) Damage to Plaintiff's reputation

Front 48

If the defamation involves a matter of public concern, what additional elements does the Constitution require the plaintiff to prove?

Back 48

5- Falsity of the defamatory language
6- Fault on the part of defendant (Malice- knowing the language was false or acting with a reckless disregard for its truth or falsity)
~ In a common law case, plaintiff does not have to prove falsity as part of the prima facie case. Rather, defendant can offer truth of the statement as a defense

Front 49

What is defamatory language?

Back 49

Defamatory language is defined as language tending to adversely affect one's reputation.
~ note that a statement of opinion is actionable only if it appears to be based on specific facts, and an express allegation of those facts would be defamatory. Name-calling is insufficient.

Front 50

What are inducement and innuendo?

Back 50

If the statement is not defamatory on its face, plaintiff may plead additional facts as "inducement" to establish defamatory meaning by "innuendo."

Front 51

What is the living person requirement?

Back 51

Any living person may be defamed. Defamation of a deceased person is not actionable. In a limited sense, a corporation, unincorporated association, or partnership may be defamed (e.g., by remarks as to its financial condition, honesty, integrity, etc.)

Front 52

What is the "Of and Concerning" Element to Defamation?

Back 52

The plaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff.

Front 53

What is Colloquium?

Back 53

If the statement does not refer to plaintiff on its face, extrinsic evidence may be offered to establish that the statement refers to the plaintiff. This is known as pleading "colloquium."

Front 54

What are the rules as to Group Defamation, i.e. in a small or large group?

Back 54

1) If the defamatory statement refers to all members of a small group, each member may establish that the statement is "of and concerning" him by alleging that he is a group member (i.e., everyone wins!).
2) If it is a large group, no member can prove that the statement is "of and concerning" him (i.e., no one wins!).
3) If the statement only refers to some members of a small group, plaintiff can recover if a reasonable person would view the statement as referring to plaintiff.

Front 55

What is the Publication element of Defamation?

Back 55

Publication means communication of the defamation to someone other than the plaintiff.
~ Such publication can be made either intentionally or negligently.

Front 56

Is an Intent to Defame required?

Back 56

No. It is the intent to publish, not the intent to defame, that is the requisite intent.
~ Each repetition is a separate publication.
~ However, for magazines, newspapers, etc., most states have adopted a "single publication" rule under which all copies are treated as one publication.

Front 57

Who may be Liable for Publishing?

Back 57

Primary publishers (e.g., newspapers, tv stations, etc.) are liable to the same extent as the author or speaker.
~ One who repeats a defamation is liable on the same general basis as the primary publisher (even if she states the source or makes it clear that she does not believe the defamation.)
~ One selling papers or playing tapes is a secondary publisher and is liable only if he knows or should know of the defamatory content.

Front 58

What does the type of damages plaintiff is required to prove depend on?

Back 58

The type of damages plaintiff must prove depends on the type of defamation (libel or slander) involved.
~ In some slander cases, plaintiff must prove that she suffered special damages - that is, she must have suffered some pecuniary loss in order to recover anything. But once plaintiff has proved special damages, she may recover general damages as well.

Front 59

What is Libel?

Back 59

Libel is the written or printed publication of defamatory language.

Front 60

What types of damages must P prove in a libel case?

Back 60

Plaintiff does not need to prove special damages and general damages are presumed.
~ The minority position distinguishes between liber per se and liber per quod (not defamatory on its face).
~ For a Non-media Defendant, most jurisdictions: if matter is libelous "on its face", then P doesn't have to prove special damages and general damages are presumed by law; if not libelous on its face ("libel per quod"), most states treat it as regular libel (a few states, like California, require proof of special damages for any libel per quod).

Front 61

What is Slander?

Back 61

Slander is spoken defamation.

Front 62

What types of damages must P prove for Slander?

Back 62

Plaintiff must prove special damages, unless defamation falls within slander per se categories

Front 63

What are the Slander Per Se Categories?

Back 63

Slander per se are defamatory statements that:
1) Adversely reflect on one's conduct in a business or profession;
2) One has a loathsome disease;
3) One is or was guilty of a crime involving moral turpitude; or
4) A woman is unchaste.

Front 64

When it is difficult to determine whether something is libel or slander, what is important?

Back 64

Where it is difficult to determine whether something is slander or libel, look at the permanency, the area of dissemination, and the deliberate character of the publication.
~ Where the original defamation is libel, any repetition, even if oral, is also libel. On the other hand, the written repetition of a slander will be characterized as libel. Radio and television programs are treated as libels if sufficiently permanent, premeditated, and broadly enough disseminated. The modern trend even treats "ad libbed" defamation on radio or television as libel.

Front 65

When the defamation involves a matter of public concern, what must the P prove in addition to the common law elements?

Back 65

(i) Falsity of the statement, and
(ii) Fault on the part of the defendant

Front 66

What does the type of fault P is obligated to prove depend on?

Back 66

The type of fault that a plaintiff must prove depends on the plaintiff's status (e.g., public official or figure or a private person).

Front 67

What must a Public Figure Prove?

Back 67

Under the New York Times v. Sullivan rule, malice must be proved in defamation cases brought by public officials and public figures.

Front 68

What Constitutes a Public Figure?

Back 68

A person becomes a "public figure" by achieving pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy.

Front 69

What is the Definition of Malice?

Back 69

Malice (as defined by New York Times v. Sullivan) is:
(i) Knowledge that the statement was false, or
(ii) A Reckless disregard as to whethere a statement was false.
~ This is a subjective test. Defendant's spite or ill will is not enough to constitute malice. Deliberately altering a quotation may constitute malice if the alteration causes a material change in the meaning conveyed by the quotation.

Front 70

When the statement is a matter of Public Concern but the P is a Private Person, what must the private person prove?

Back 70

Under Gertz v. Welch, where a private person is the plaintiff, only negligence regarding the falsity must be proved if the statement involves a matter of "public concern."
(If not a matter of public concern, constitutional restrictions do not apply).

Front 71

Where the D is negligent on a matter of public concern with a private person, what types of damages are recoverable?

Back 71

In this case, where the defendant is negligent, only "actual injury" damages are recoverable.
~ However, where malice is found, damages may be presumed, and punitive damages allowed.

Front 72

What are the Defenses to Defamation?

Back 72

1. Consent - Consent is a complete defense. The rules relating to consent to intentional torts apply here.
2. Truth - Where plaintiff does not need to prove falsity (i.e., the statement is about a purely private matter), defendant may prove truth as a complete defense.
3. Absolute Privilege - these are for remarks made during judicial proceedings, by legislators in debate, by federal executive officials, in "compelled" broadcasts, and between spouses.
4. Qualified Privilege

Front 73

How can a Qualified Privilege be lost?

Back 73

Sometimes the speaker may have a qualified privilege for the following: reports of official proceedings; statements in the interest of the publisher - defense of one's actions, property, or reputation; statements in the interest of the recipient; and statemens in the common interest of the publisher and recipient.
~ The qualified privilege may be lost if:
(i) the statement is not within the scope of the privilege, or
(ii) it is shown that the speaker acted with malice.
~ Note that the Defendant bears the burden of proving that a privilege exists.

Front 74

What are Mitigating Factors to Defamation?

Back 74

Mitigating factors (e.g., no malice, retraction, anger of the speaker provoked by plaintiff) may be considered by the jury on the damages issue; they are not defenses to liability.

Front 75

What are the Four Branches of Invasion of Right to Privacy?

Back 75

A Flip
1. Appropriation
2. False Light
3. Intrusion
4. Public Disclosure of Private Facts

Front 76

What is Appropriation?

Back 76

Appropriation is: Unauthorized use (appropriation) of plaintiff's picture or name for defendant's commercial advantage

Front 77

What is Intrusion on Affairs or Seclusion?

Back 77

The act of prying or intruding into the private affairs of the plaintiff
~ must be objectionable to a reasonable person.
~ The thing into which there is an intrusion must be "private."

Front 78

Is truth a defense to Appropriation?

Back 78

No - Truth is not a defense or relevant, it's unauthorized use that matters.

Front 79

What is False Light?

Back 79

It is Publication of Facts Placing P in False Light; False light exists where one attributes to plaintiff views he does not hold or actions he did not take.
~ the Publication must be Objectionable to a reasonable person
~ there must be publicity.

Front 80

Is there a First Amendment limitation to False Light?

Back 80

Yes - malice has to be shown on the part of D if the matter is in the public interest.

Front 81

Is truth a defense to False Light?

Back 81

Yes - False Light does require falsity (i.e., truth would be a defense);
for media D, if matter is "newsworthy" the D can't be liable unless it knew what it published was false, or it recklessly disregarded its truth or falsity (malice).

Front 82

What is Public Disclosure of Private Facts?

Back 82

It is Public Disclosure of Private Information about plaintiff
~ objectionable to a reasonable person

Front 83

Is it a defense for Public Disclosure that the information is true?

Back 83

No - liability may attach even though the actual statement is true.

Front 84

What else is a necessary element for the Invasion of Right to Privacy torts?

Back 84

Causation - The invasion of plaintiff's interest in privacy (under any of the four kinds) must have been proximately caused by defendant's conduct.

Front 85

Is Proof of Special Damages Necessary for the Invasion of Right to Privacy torts?

Back 85

No. Plaintiff need not plead and prove special damages. Emotional distress and mental anguish are sufficient damages.

Front 86

What are the defenses to the Invasion of Right to Privacy torts?

Back 86

Some defenses to the right or privacy actions are consent and the defamation privilege defenses. Truth generally is not a good defense; nor is inadvertence, good faith, or lack of malice.

Front 87

What is the prima facie case for Intentional Misrepresentation (Fraud, Deceit)?

Back 87

(i) Misrepresentation of a material, past or present fact.
(ii) Scienter (i.e., when D made the statement, she knew or believed it was false or that there was no basis for the statement);
(iii) Intent to induce P's reliance on the misrepresentation;
(iv) Causation (actual reliance) on the misrepresentation
(v) Justifiable reliance (generally, reliance is justifiable only as to a statement of fact, not opinon); and
(vi) Damages (plaintiff must suffer actual pecuniary loss).

Front 88

What is the prima facie case for Negligent Misrepresentation?

Back 88

(i) Misrepresentation by defendant in a business or professional capacity;
(ii) Breach of duty toward a particular plaintiff;
(iii) Causation;
(iv) Justifiable reliance; and
(v) Damages.
~ Generally, this action is confined to misrepresentations made in a commercial setting, and liability will attach only if reliance by the particular plaintiff could be contemplated.

Front 89

What is the prima facie case for Malicious Prosecution?

Back 89

(i) institution of criminal proceedings against plaintiff
(ii) termination in plaintiff's favor
(iii) absence of probable cause for prior proceedings (insufficient facts for a reasonable person to believe plaintiff was guilty, or defendant, in fact, did not believe that plaintiff was guilty);
(iv) improper purpose (i.e., something other than bringing a person to justice); and
(v) damages. Prosecutors are immune from liability.

~ Note that most jurisdictions have extended malicious prosecution to cover Wrongful Civil Proceedings

Front 90

What is Abuse of Process?
2 elements

Back 90

(i) wrongful use of process for an ulterior purpose and
(ii) a definite act or threat against plaintiff in order to accomplish an ulterior purpose.

Front 91

What is the prima facie case for Interference With Business Relations?

Back 91

(i) existence of a valid contractual or business relationship between plaintiff and a thid-party or valid business expectancy of plaintiff;
(ii) defendant's knowledge of the relationship or expectancy;
(iii) intentional interference by defendant inducing breach or termination of the relationship or expectancy; and
(iv) Damages

Front 92

What is the privilege as it relates to Interference with Business Relations?

Back 92

Defendant's conduct may be privileged where it is a proper attempt to obtain business for itself or protect its interests, particularly if defendant is interfering only with plaintiff's prospective business rather than with existing contracts.

Front 93

What is the prima facie case for Negligence?

Back 93

(i) A duty on the part of defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury;
~ to act as an ordinary, prudent, reasonable person.
(ii) A breach of that duty by defendant;
(iii) The breach is the actual and proximate cause of plaintiff's injury; and
~ D is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. Test is based on foreseeability
(iv) Damages

Front 94

To whom is the Duty of Care owed?

Back 94

A duty of care is owed only to foreseeable plaintiffs.

Front 95

What is the Cardozo View (Majority) on foreseeability?

Back 95

This is based on a Foreseeable Zone of Danger. a reasonable person would have foreseen a risk of injury to the plaintiff under the circumstances, i.e., the plaintiff was located in a foreseeable "zone of danger."

Front 96

What is the Andrews View (Minority) on foreseeability?

Back 96

Defendant owes a duty to anyone who suffers injuries as a proximate result of his breach of duty to someone

Front 97

What is the basic standard of care?

Back 97

The Reasonable Person standard - The reasonable person standard is an objective standard, i.e., one's conduct measured against what the average person would do.
~ A defendant's mental deficiencies and inexperience are not taken into account (i.e., stupidity is no excuse).
~ However, the "reasonable person" is considered to have the same physical characteristics as defendant

Front 98

What kind of test is the standard of care for children?

Back 98

A subjective test - children are held to the standard of a child of like age, education, intelligence, and experience.

Front 99

What is the Duty of a Possessor of land to Those Off Premises?

Back 99

There is no duty to protect one off the premises from natural conditions on the premises;
~ however, there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land.
~ Also, one must carry on activities on property so as to avoid unreasonable risk of harm to others outside the property.

Front 100

What is the duty owed to undiscovered trespassers?

Back 100

No duty is owed to undiscovered trespassers.

Front 101

What is the duty owed as to discovered or anticipated trespassers?

Back 101

As to discovered or anticipated trespassers, the landowner must:
(i) warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm, and
(ii) use reasonable care in the exercise of ""active operations"" on the property.
~ No duty is owed for natural conditions or less dangerous artificial conditions.

Front 102

What duty is owed to trespassers by easement and license holders?

Back 102

~ Easement and license holders owe a duty of reasonable care to trespassers.

Front 103

What is the Attractive Nuisance Doctrine?

Back 103

Most courts impose on a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property. plaintiff must show:
(i) There is an artificial dangerous condition present on the land of which the owner is or should be aware of;
(ii) the owner (or possessor, as in renter) knows or should know that children frequent the vicinity of this dangerous condition;
(iii) The condition is likely to cause injury, i.e., is dangerous, because of the child's inability to appreciate the risk (is a subjective standard); and
(iv) the expense of remedying the situation is slight compared with the magnitude of risk [Balancing act]

Front 104

What is a Licensee?

Back 104

A licensee is one who enters on the land with the possessor's permission for her own purpose or business, rather than for the possessor's benefit.

Front 105

What is the Duty Owed to Licensees?

Back 105

(i) warn of dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover, and
(ii) exercise reasonable care in the conduct of ""active operations"" on the property.
~ The possessor has no duty to inspect or repair.

Front 106

What are Social Guests considered?

Back 106

Social guests are considered licensees.

Front 107

What are Invitees?

Back 107

Invitees enter land in response to an invitation by the landowner
(i.e., they enter for a purpose connected with the business of the landowner or enter as members of the public for a purpose for which the land is held open to the public).

Front 108

What duty is owed invitees?

Back 108

The landowner or occupier owes the same duties owed to a licensees plus:
(i) a duty to make reasonable inspections to discover nonobvious dangerous conditions and,
(ii) thereafter, make them safe.
~ One will lose invitee status if she exceeds the scope of the invitation.

Front 109

What Duty is Owed to Users of Recreational Land?

Back 109

A landowner who permits the general public to use his land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

Front 110

What is the Modern Trend regarding Duty of Care owed to Licensees and Invitees?

Back 110

A strong minority of states reject the distinction between licensees and invitees (and, in a few states, trespassers as well), and simply apply a reasonable person standard to dangerous conditions on the land.

Front 111

What are the duties of the Lessee and Lessor?

Back 111

The lessee - has a general duty to maintain the premises.
The lessor - must warn of existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection.
~ If the lessor covenants to repair, he is liable for unreasonably dangerous conditions.
~ If the lessor volunteers to repair and does so negligently, he is liable.

Front 112

What is the statutory duty of a vendor of realty?

Back 112

A vendor (seller of property) must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and which he knows the vendee is not likely to discover on a reasonable inspeciton.

Front 113

When may a statute's specific duty replace the more general common law duty of care?
4 elements.

Back 113

(i) the statute provides for a criminal penalty,
(ii) the statute clearly defines the standard of conduct,
(iii) plaintiff is within the protected class, and
(iv) the statute was designed to prevent the type of harm suffered by plaintiff.

Front 114

When will there be an Excuse for a Violation of such a statute?

Back 114

Violation of some statutes may be excused where compliance would cause more danger than violation or where compliance would be beyond defendant's control.

Front 115

What is the Effect of a violation or compliance with a statutory duty of care?

Back 115

Under the majority view, an unexcused statutory violation is negligence per se; i.e., it establishes the first two requirements in the prima facie case - a conclusive presumption of duty and breach of duty.
~ In contrast, even though violation of the applicable statute may be negligence, compliance with the statute will not necessarily establish due care.

Front 116

What is the Duty Regarding Negligent Infliction of Emotional Distress?

Back 116

The duty to avoid causing emotional distress to another is breached when defendant creates a foreseeable risk of physical injury to plaintiff through physical impact or threat of impact.

Front 117

What is the Injury Requirement for Negligent Infliction of Emotional Distress?

Back 117

Plaintiff can recover damages only if defendant's conduct caused some physical injury.
~ While pure emotional distress may be insufficient, a severe shock to the nervous system is sufficient.
Two cases in which a physical injury is not required, however, are:
1) An erroneous report of a relative's death; and
2) A mishandling of a relative's corpse.

Front 118

What is the Target Zone Requirement?

Back 118

Most courts require plaintiff to be within the target zone (zone of danger) of defendant's negligent conduct.
~ The "threat of impact" element cannot be established if plaintiff is outside the zone of danger.
~ Note a strong modern trend allows recovery based on foreseeability factors rather than zone of danger where:
(i) plaintiff and the person injured by defendant are closely related,
(ii) plaintiff was present at the scene, and
(iii) plaintiff observed or perceived the injury.

Front 119

What are the exceptions to the rule that Generally, one does not have legal duty to act.

Back 119

a. Assumption of Duty by Acting
b. Peril Due to Defendant's Negligence
c. Special Relationship Between Parties
d. Duty to Control Third Persons

Front 120

How is a Duty breached, generally?

Back 120

Where defendant's conduct falls short of that level required by the applicable standard of care owed to the plaintiff, she has breached her duty.
~ Whether the duty of care is breached in an individual case is a question for the trier of fact.
~ The main problem relates to proof of the breach.

Front 121

What is Custom of Usage as relates to the standard of care?

Back 121

Custom or usage may be used to establish standard of care, but does not control the question of whether certain conduct amounted to negligence.
~ For example, although certain behavior is custom in an industry, a court may find that the entire industry is acting negligently

Front 122

What does Res Ipsa Loquitor require the Plaintiff to show?
2 elements

Back 122

(i) the accident causing injury is a type that would not normally occur unless someone was negligent, and
(ii) the instrumentality causing the injury was in defendant's sole control.
(Plaintiff must also establish freedom from fault on his part.)
~ Where res ipsa loquitur is established, plaintiff has made a prima facie case and no directed verdict may be given for defendant.
~ Plaintiff can still lose, however, if the inference of negligence is rejected by the trier of fact.

Front 123

Once negligent conduct is shown, i.e. a breach of the standard of care owed a foreseeable plaintiff, a plaintiff must show that the conduct was what?

Back 123

Once negligent conduct is shown, i.e. a breach of the standard of care owed a foreseeable plaintiff, a plaintiff must show that the conduct was the cause of his injury.
~ For liability to attach, plaintiff must show both actual cause and proximate cause.

Front 124

What is the "But-For" Test

Back 124

An act or omission is the cause in fact of an injury when the injury would not have occurred but for the act.
~ This test applies where several acts (each insufficient to cause the injury alone) combine to cause the injury.

Front 125

What is the Joint Causes - Substantial Factor Test?

Back 125

Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, defendant's conduct is the cause in fact if it was a substantial factor in causing the injury.

Front 126

What is the Alternative Causes Approach?

Back 126

This test applies when there are two acts, only one of which causes injury, but it is not known which one.
~ The burden of proof shifts to defendants and each must show that his negligence is not the actual cause.

Front 127

What is Proximate Cause?

Back 127

Proximate Causation is legal causation.
The doctrine of proximate causation is a limitation of liability and deals with liability or nonliability for unforeseeable or unusual consequences of one's acts.

Front 128

What is the general rule as to proximate causation?

Back 128

A defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts
~ This is a foreseeability test.

Front 129

In a direct cause case, what is the Defendant liable for?

Back 129

In a direct cause case, where there is an uninterrupted chain of events from the negligent act to plaintiff's injury, defendant is liable for all foreseeable harmful results, regardless of unusual manner or timing.
~ Defendant is not liable for unforeseeable harmful results not within the risk created by defendant's negligence.
~ Most harmful results will be deemed foreseeable in direct cause cases.

Front 130

What is the rule as to independent intervening forces?

Back 130

Independent intervening forces that are not a natural response or reaction to the situation created by the defendant's conduct may be foreseeable if defendant's negligence increased the risk of harm from these forces. Independent intervening forces include
(i) negligent acts of third persons,
(ii) crimes and intentional torts of third persons, and
(iii) acts of God.

Front 131

What is a superseding force?

Back 131

Superseding forces break the causal connection between defendant's initial negligent act and plaintiff's ultimate injury, thus relieving defendant of liability.

Front 132

What is the rule as to an unforeseeable extent or severity of harm?

Back 132

In all cases, defendant takes his plaintiff as he finds him; i.e., defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable.
~ This is also known as the "eggshell-skill plaintiff" rule.

Front 133

What may plaintiff be compensated for?

Back 133

Plaintiff is to be compensated for all his damages (past, present, and prospective), both special and general.
~ Foreseeability of the extent of harm is generally irrelevant; i.e., one takes one's plaintiff as one finds him.

Front 134

What is the measure of damage for negligence for property damage?

Back 134

The measure of damage is the reasonable cost of repair or, if the property is nearly destroyed, the fair market value at the time of the accident.

Front 135

May plaintiff recover punitive damages?

Back 135

Plaintiff may recover punitive damages if defendant's conduct is "wanton and willful," reckless, or malicious.

Front 136

What is the Collateral Source Rule?

Back 136

Damages are not reduced just because plaintiff received benefits from other sources, e.g., health insurance.

Front 137

What is Contributory Negligence?

Back 137

Contributory negligence is negligence on the part of the plaintiff that contributes to her injuries.
~ The standard of care for contributory negligence is the same as for ordinary negligence.

Front 138

What was the Effect of Contributory Negligence at Common Law?

Back 138

Contributory negligence completely barred plaintiff's right to recovery at common law.
~ Most jurisdictions now favor a comparative negligence system (see infra).

Front 139

What is the Last Clear Chance Doctrine?

Back 139

Last clear chance permits plaintiff to recover despite her contributory negligence.
~ Under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence.
(Last clear chance is essentially plaintiff's rebuttal to the defense of contributory negligence).

Front 140

What is Imputed Contributory Negligence?

Back 140

As a general rule, the contributory negligence of a third party will be imputed to a plaintiff (and bar her claim) only when the relationship between the third party and the plaintiff is such that a court could find the plaintiff vicariously liable for the third party's negligence.
Negligence is imputed in master-servant, partner, and joint venturer relationships.
E.g., P (master) sues D, P is vicariously liable for servant's negligence → contributory negligence of servant could bar plaintiff's claim.

Front 141

What is Assumption of the Risk?

Back 141

Plaintiff may be denied recovery if she assumed the risk of any damage caused by defendant's act.
Plaintiff must have:
(i) known of the risk and
(ii) voluntarily proceeded in the face of the risk.

Front 142

What is Implied Assumption of the Risk?

Back 142

Knowledge may be implied where the risk is one that an average person would clearly appreciate.
~ Plaintiff may not be said to have assumed the risk where there is no available alternative to proceeding in the face of the risk or in situations involving fraud, force, or an emergency.
~ Also, common carriers and public utilities may not limit their liability by disclaimer, and members of a class protected by statute will not be deemed to have assumed any risk.

Front 143

Is Assumption of the Risk a defense to intentional torts?

Back 143

Assumption of risk is not a defense to intentional torts, but it is a defense to wanton and willful misconduct.

Front 144

What is Comparative Negligence?

Back 144

In comparative negligence states, plaintiff's contributory negligence is not a complete bar to recovery.
~ Rather, the trier of fact weighs plaintiff's negligence and reduces damages accordingly (e.g., if plaintiff is 10% at fault, her damages are reduced by 10%).
~ A majority of states allow plaintiff to recover only if her negligence was less serious or no more serious than that of defendant (partial comparative negligence).
"Pure" comparative negligence states, however, allow recovery no matter how great plaintiff's negligence.

Front 145

What is the Effect of Comparative Negligence on other doctrines?

Back 145

Last clear chance is not used in comparative negligence jurisdictions.
~ Most comparative negligence jurisdictions have abolished the defense of implied assumption of the risk but have retained the defense of express assumption of risk.
~ In most states, plaintiff's negligence will be taken into account even though defendant's conduct was "wanton and willful" or "reckless," but not if it was intentional.

Front 146

What is required for a prima facie case for Strict Liability?

Back 146

(i) existence of an absolute duty on the part of defendant to make safe;
(ii) breach of that duty;
(iii) the breach of the duty was the actual and proximate cause of the plaintiff's injury; and
(iv) damage to the plaintiff's person or property.

Front 147

Is an owner strictly liable for Wild Animals?

Back 147

An owner is strictly liable to licensees and invitees for injuries caused by wild animals as long as the injured person did nothing to bring about the injury.

Front 148

What are the requirements for strict liability to apply to ultrahazardous activities?

Back 148

(i) the activity must involve risk of serious harm to persons or property;
(ii) the activity must be one that cannot be performed without risk of serious harm no matter how much care is taken;
(iii) the activity is not commonly engaged in in particular community (blasting, manufacturing explosives, etc.).
~ Some courts also consider the value of the activity and its appropriateness to the location.

Front 149

What is the Scope of Duty owed under Strict Liability?

Back 149

The duty owed is the absolute duty to make safe the normally dangerous characteristic of the animal or activity.
~ It is owed to all foreseeable plaintiffs.

Front 150

Is Contributory Negligence a defense to Strict Liability?

Back 150

In contributory negligence states, contributory negligence is no defense if the plaintiff has failed to realize the danger or guard against it.
~ It is a defense if plaintiff knew of the danger and his unreasonable conduct was the very cause of the ultrahazardous activity miscarrying.

Front 151

Is Assumption of Risk a defense to Strict Liability?

Back 151

Yes - Assumption of the risk is a good defense to strict liability.
~ Most comparative negligence states apply their comparative negligence rules to strict liability cases.

Front 152

What are the Five Theories of Liability a Plaintiff may use under Products Liability?

Back 152

1- Intent
2- Negligence
3- Strict Liability
4- Implied warranties of merchantability and fitness for a particular purpose; and
5- Representation theories (express warranty and misrepresentation)

Front 153

To find liability under any products liability theory, what two elements must P must show?

Back 153

(i) a defect; and
(ii) existence of the defect when the product left defendant's control.

Front 154

What are the Three Main Types of Defects?

Back 154

1. Manufacturing
2. Design
3. Inadequate Warnings

Front 155

What is a Manufacturing Defect?

Back 155

If a product emerges from manufacturing different and more dangerous than the products made properly, it has a manufacturing defect.

Front 156

What is a design defect?

Back 156

When all products of a line are the same but have dangerous propensities, they may be found to have a design defect.

Front 157

What are Inadequate Warning Defects?

Back 157

A product may be defective as a result of the manufacturer's failure to give adequate warnings as to the risks involved in using the product.
~ For liability to attach, the danger must not be apparent to users.

Front 158

How does P prove a Manufacturing Defect?

Back 158

For a manufacturing defect, defendant will be liable if plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect (defendant must anticipate reasonable misuse).
~ This test also applies to defective food products.

Front 159

How does P prove a Design Defect?

Back 159

For a design defect, plaintiff usually must show that the defendant could have made the product safer, without serious impact on the product's price or utility.

Front 160

What does noncompliance with Government Safety Standards establish?

Back 160

A product's noncompliance with government safety standards establishes that it is defective, while compliance with safety standards is evidence - but not conclusive - that the product is not defective.

Front 161

How does P prove a product was defective when it left D's Control?

Back 161

The defect must have existed when the product left defendant's control.
~ This will be inferred if the product moved through normal channels of distribution.

Front 162

What is Products Liability based on Intent?

Back 162

D will be liable to anyone injured by an unsafe product if defendant intended the consequences or knew that they were substantially certain to occur.
~ If intent is present, the most likely tort is battery.
~ Privity is not required
~ the Defenses are those available for other intentional torts

Front 163

What is Products Liability based on Negligence?

Back 163

The prima facie case is the same as in any negligence case.
~ Plaintiff must show: (i) duty, (ii) breach, (iii) actual and proximate cause, and (iv) damages.
~ A duty of care is owed to any foreseeable plaintiff.
~ Privity is not required

Front 164

How is breach of duty shown in a Products Liability action based on Negligence?

Back 164

Breach of duty is shown by (i) negligent conduct of defendant leading to (ii) the supplying of a defective product (as defined above).
~ Negligence (breach of duty) is proved the same as in a "standard" negligence case.

Front 165

In a Products Liability case, why is it difficult to hold retailers and wholesalers liable for negligence?

Back 165

It is very difficult to hold retailers and wholesalers liable for negligence since they can usually satisfy their duty through a cursory inspection.

Front 166

In a Products Liability case based on negligence, what does an intermediary's (e.g., wholesaler's) negligent failure to discover a defect mean?

Back 166

An intermediary (e.g., wholesaler's) negligent failure to discover a defect does not supersede the original manufacturer's negligence unless the intermediary's conduct exceeds ordinary foreseeable negligence.

Front 167

What types of damages must be shown for a Products Liability claim based on negligence?

Back 167

Physical injury or property damage must be shown. (Recovery will be denied if the sole claim is for economic loss.)

Front 168

What is the prima facie case for a Products Liability case based on Strict Liability?

Back 168

(i) a strict duty owed by a commercial supplier of a product;
(ii) breach of that duty;
(iii) actual and proximate cause; and
(iv) damages

Front 169

What is D's Duty in a Products Liability case based on Strict Liability?

Back 169

Defendant has a duty to supply safe products.
~ Privity is not required
~ For liability to attach, the product must reach plaintiff without substantial alteration.

Front 170

Does Strict Products Liability apply to services?

Back 170

No, Strict products liability applies only to products.
~ Even where a product is provided incident to a service (e.g., blood during an operation), there is no strict liability.
~ Plaintiff may, however, sue in negligence.

Front 171

Who can be liable under Strict Products Liability?

Back 171

Any commercial supplier can be held liable.
~ Casual sellers will not be held strictly liable.

Front 172

How does P show a Breach of Duty under Strict Products Liability?

Back 172

For breach of duty, plaintiff must show that the product is defective (as defined above).
~ The defect must make the product unreasonably dangerous.
~ Retailers may be liable even if they have no opportunity to inspect the product.

Front 173

How does P show a Actual Cause under Strict Products Liability?

Back 173

For actual cause, plaintiff must show that the defect existed when the product left defendant's control.
~ Proximate cause is the same as in negligence cases.

Front 174

What damages must be shown under Strict Products Liability?

Back 174

Physical injury or property damage must be shown.
~ Recovery will be denied if the sole claim is for economic loss.

Front 175

What Defenses are available in a Strict Products Liability case?

Back 175

In contributory negligence states, ordinary contributory negligence is no defense where plaintiff merely failed to discover the defect or guard against its existence, or where plaintiff's misuse was reasonably foreseeable.
~ Assumption of the risk is a defense.
~ In most comparative negligence states, courts will apply their comparative negligence rules.

Front 176

Are disclaimers effective in Negligence and Strict Products Liability cases?

Back 176

No - Disclaimers are irrelevant in negligence or strict liability cases if personal injury or property damages occur.

Front 177

What are the two warranties that are implied in every sale of goods?

Back 177

1. Implied Warranty of Merchantability
2. Implied Warranty of Fitness for a Particular Purpose

Front 178

What is the Implied Warranty of Merchantability?

Back 178

The Implied Warranty of Merchantability refers to whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used

Front 179

What is the Implied Warranty of Fitness for a Particular Purpose?

Back 179

The Implied Warranty of Fitness for a Particular Purpose arises when the seller
(i) knows or has reason to know the particular purpose for which the goods are required and
(ii) that the buyer is relying on the seller's skill and judgment in selecting the goods.

Front 180

Who can sue under the Implied Warranties?

Back 180

Most courts no longer require vertical privity;
~ most states adopted a narrow version of the horizontal privity requirement - this means the buyer, family, household, and guests can sue for personal injuries.
~ These warranties extend to bailments and leases as well as sales.

Front 181

What Constitutes Breach under the Implied Warranties?

Back 181

If the product fails to live up to either of the above standards, the warranty is breached and the defendant will be liable.
~ Proof of fault is unnecessary

Front 182

How is causation proved in an Implied Warranty case?

Back 182

Actual cause and proximate cause are handled as in ordinary negligence cases.

Front 183

What damages are available in an Implied Warranty case?

Back 183

Personal injury and property damage, and purely economic loss are recoverable.

Front 184

What Defenses are available in an Implied Warranty case?

Back 184

Assumption of the Risk: plaintiff assumes the risk by using a product while knowing of the breach of warranty.
(any resulting injuries are not proximately caused by the breach).
Contributory negligence: to the same extent as in strict liability cases.
~ unreasonable failure to discover the defect does not bar recovery but unreasonable conduct after discovery does bar recovery.

Front 185

What is the Effect of Disclaimers in an Implied Warranty case?

Back 185

~ Disclaimers are generally rejected in personal injury cases but upheld for economic loss.
~ Failure to give Notice of Breach - is a defense under the U.C.C.: U.C.C. section 2-607 requires the buyer to give the seller notice within a reasonable time after the buyer discovers or should have discovered the breach.
~ Comparative negligence: comparative fault notions in warranty cases reduce the damage award in the same way as in strict liability cases.
~ Disclaimers: must be specific and are narrowly construed; contractual limitations on personal injury are prima facie unconscionable

Front 186

What are the Two Representation Theories?

Back 186

1. Express Warranty
2. Misrepresentation of Fact

Front 187

What is an Express Warranty?

Back 187

Any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty.
~ Any consumer, user, or bystander can sue.
~ If a buyer sues, the warranty must have been "part of the basis of the bargain."
~ If plaintiff is not in privity (e.g., bystander), she need not have relied on the representation as long as someone did.
~ This warranty extends to bailments and leases as well as sales.

Front 188

Does P need to show Fault under an Express Warranty theory?

Back 188

Fault need not be shown to establish breach.
~ Plaintiff need only show that the product did not live up to its warranty.
~ Causation, damages, and defenses are treated just as under implied warranties.

Front 189

Are Disclaimers effective in an Express Warranty situation?

Back 189

No. A disclaimer will be effective only in the unlikely event that it can be read consistently with any express warranties made.
~ This has the effect of making it practically impossible to disclaim an express warranty.

Front 190

What are the elements under a Misrepresentation of Fact case?

Back 190

A seller will be liable for misrepresentations of facts concerning a product where:
(i) The statement was of a material fact concerning quality or uses of goods (mere puffery is insufficient), and
(ii) The seller intended to induce reliance by the buyer.

Front 191

What is liability based on in a Misrepresentation of Fact case?

Back 191

Liability is usually based on strict liability but may also arise for intentional or negligent misrepresentations:
~ For Intentional Misrepresentation: P must show that the misrepresentation was made knowingly or with reckless disregard for the facts.
~ For Negligent Misrepresentation: P need only show that a reasonable person should have known such representations to be false when making them.

Front 192

What kind of reliance is required under Misrepresentation of Fact?

Back 192

Justifiable reliance is required (i.e., the representations was a substantial factor in inducing the purchase).
~ Reliance need not be the victim's (it may be a prior purchaser's).
~ Privity is irrelevant.

Front 193

How are Causation and Damages treated under Misrepresentation of Fact?

Back 193

Actual cause is shown by reliance.
Proximate cause is as per usual and damages are the same as for strict liability (i.e., Physical injury or property damage must be shown).

Front 194

Is Assumption of Risk a Defense under Misrepresentation of Fact?

Back 194

Assumption of the risk is not a defense if plaintiff is entitled to rely on the representation.
~ Contributory negligence is the same as in strict liability, unless defendant committed intentional misrepresentation.

Front 195

What is Nuisance?

Back 195

Nuisance is not a separate tort in itself. Rather, nuisances are a type of harm - the invasion of either private property rights or public rights by conduct that is tortious because it falls into the usual categories of tort liability (i.e., intentional, negligent, strict liability).
~ There are two types of nuisance: private or public.

Front 196

What is Private Nuisance?

Back 196

Privante nuisance is a substantial, unreasonable interference with another private individual's use or enjoyment of property he actually possesses or to which he has a right of immediate possession.

Front 197

What is substantial interference?

Back 197

Substantial interference is interference that is offensive, inconvenient, or annoying to the average person in the community.
~ It is not substantial if it is merely the result of plaintiff's hypersensitivity or specialized use of his own property.

Front 198

How is Unreasonable Interference established?

Back 198

To establish unreasonable interference, required for nuisances based on intent or negligence, the severity of the inflicted injury must outweigh the utility of defendant's conduct.
~ In balancing these respective interests, courts take into account that every person is entitled to use his own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courses of conduct open to defendant.

Front 199

How is Trespass to Land distinguished from Private Nuisance?

Back 199

~ In a trespass, there is an interference with the landowner's exclusive possession by a physical invasion;
~ in a private nuisance, there is an interference with use or enjoyment.

Front 200

What is Public Nuisance?

Back 200

Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community; e.g., using a building for criminal activities such as prostitution.

Front 201

When is recovery by a private party allowed for Public Nuisance?

Back 201

~ Recovery by a private party is available for a public nuisance only if the private party suffered unique damage not suffered by the public at large.

Front 202

What are the remedies for Nuisance?

Back 202

Plaintiff will usually be awarded damages.
~ Injunctive relief and
~ Abatement by Self-Help are also possibilities

Front 203

When is Injunctive relief available?

Back 203

If the legal remedy of damages is unavailable or inadequate (e.g., the nuisance will cause irreparable injury), injunctive relief will be awarded.
~ In this case, the court will consider the relative hardships.
~ However, hardships will not be balanced where defendant's conduct was either willful or against an assertion of right by plaintiff.

Front 204

When is Abatement by Self-Help available?

Back 204

In the case of a private nuisance, self-help abatement is available after notice to defendant and his refusal to act.
~ Only necessary force may be used.
~ In public nuisance cases, only a public authority or a private party who has suffered some unique damage can seek an injunction or abatement.

Front 205

Is Legislative authority for nuisance activity a defense?

Back 205

Legislative authority for "nuisance activity" (e.g., zoning ordinance) is not an absolute defense but is persuasive.

Front 206

Is Contributory Negligence a defense to Nuisance?

Back 206

Contributory negligence generally is no defense to nuisance unless plaintiff's case rests on a negligence theory.

Front 207

Is Coming to the Nuisance a defense?

Back 207

One may "come to a nuisance" (purchasing land next to an already existing nuisance) and, thereafter pursue an action.
~ It is generally not a bar to plaintiff's action unless she "came to the nuisance" for the sole purpose of bringing a harassing lawsuit.

Front 208

What is Vicarious Liability?

Back 208

Vicarious liability is liability that is derivatively imposed.
~ In short, this means that one person commits a tortious act against a third party and another person will be liable to the third party for this act.

Front 209

What is the Doctrine of Respondeat Superior?

Back 209

A master/employer will be vicariously liable for tortious acts committed by her servant/employee if the tortious acts occur within the scope of the employment relationship.

Front 210

What is Frolic and Detour?

Back 210

An employee making a minor deviation from his employer's business for his own purposes is still acting within the scope of his employment. if the deviation in time or geographic area is substantial, the employer is not liable.

Front 211

Is intentional tortious conduct by servants within the scope of employment?

Back 211

It is usually held that intentional tortious conduct by servants is not within the scope of employment. Exceptions:
1) Force is authorized in the employment, e.g., bouncer.
2) Friction is generated by employment, e.g., bill collector.
3) The servant is furthering the business of the master, e.g., removing customers from the premises because they are rowdy.

Front 212

Will a principal be liable for tortious acts of her agent if the agent is an independent contractor?

Back 212

In general, a principal will not be liable for tortious acts of her agent if the agent is an independent contractor.

Front 213

What are the Two broad exceptions to the independent contractor situation?

Back 213

(i) The independent contractor is engaged in inherently dangerous activities, e.g.,blasting.
(ii) The duty, because of public policy considerations, is simply nondelegable, e.g., the duty to use due care in building a fence around an excavation site.

Front 214

What is Liability for Negligent Selection?

Back 214

Both in respondeat superior and independent contractor cases, the employer may be liable for her own negligence in selecting the servant or independent contractor (e.g., hospital liable for contracting with physician who negligently treats hospital's patient).
(This is not vicarious liability.)

Front 215

What is the rule as to Partners and Joint Venturers being vicariously liable for the acts of other partners/joint venturers?

Back 215

Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture.

Front 216

How about an Automobile Owner for a Driver?

Back 216

The general rule is that an automobile owner is not vicariously liable for the tortious conduct of another person driving his automobile. In some jurisdictions, courts employ theories other than vicarious liability to hold an automobile driver liable.

Front 217

What is the Family Car Doctrine?

Back 217

In many states, the owner is liable for tortious conduct of immediate family or household members who are driving with the owner's express or implied permission.

Front 218

What is a permissive use statute?

Back 218

A number of states have now gone further by imposing liability on the owner for damage caused by anyone driving with the owner's consent.

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What is negligent entrustment?

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An owner may be liable for her own negligence in entrusting the car to a driver.
~ Some states have also imposed liability on the owner is she was present in the car at the time of the accident, on the theory that she could have prevented the negligent driving, and hence was negligent herself in not doing so. (This is not vicarious liability.)

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Is bailor liable for the tortious conduct of his bailee?

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Under the general rule, the bailor is not vicariously liable for the tortious conduct of his bailee.
As above, the bailor may be liable for her own negligence in entrusting the bailed object. (This is not vicarious liability.)

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Is a parent vicariously liable for the tortious conduct of her children?

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A parent is not vicariously liable for the tortious conduct of the child at common law.
~ Note, however, that most states, by statute, make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount (e.g., $10,000).
~ Courts may impose vicarious liability if the child committed a tort while acting as the agent for the parents.
~ The parent may be held liable for her own negligence in allowing the child to do something, e.g., use a dangerous object without proper instruction.

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What are Dramshop acts?

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At CL, No liability was imposed on vendors of intoxicating beverages for injuries resulting from the vendee's intoxication, whether the injuries were sustained by the vendee or by a third person as a result of the vendee's conduct.
~ Many states, in order to avoid this common law rule, have enacted Dramshop Acts.
~ Such acts usually create a cause of action in favor of any third person injured by the intoxicated vendee.
~ Several courts have imposed liability on tavernkeepers even in the absence of a Dramshop Act based on ordinary negligence principles (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liability.

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What is Joint and Several Liability?

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Where two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable (i.e., liable to plaintiff for the entire damage incurred).
~ If the injury is divisible, each defendant is liable only for the identifiable portion.

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If two or more tortfeasors act in concert to injure plaintiff, what result?

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Where two or more defendants act in concert and injure plaintiff, each is jointly and severally liable for the entire injury.
~ This is so even if the injury is divisible.
~ Many states have abolished joint liability either
(i) for those defendants judged to be less at fault than plaintiff, or
(ii) for all defendants regarding noneconomic damages.
- In these cases, liability will be proportional to defendant's fault.

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What is satisfaction and release?

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Recovery of full payment is "satisfaction"
~ Only one satisfaction is allowed.
~ Until there is satisfaction, however, one may proceed against all jointly liable parties.
Release- surrender of plaintiff's cause of action against the party to whom the release is given;
At common law, a release of one joint tortfeasor was a release of all joint tortfeasors.
~ A majority of states now provide that a release of one tortfeasor does not discharge other tortfeasors unless expressly provided in the release agreement.

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What are contribution and indemnity?

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Contribution and indemnity are doctrines that determine how joint tortfeasors allocate between them the damages they must pay to a successful plaintiff.

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What is contribution?

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The doctrine of contribution allows a defendant who pays more than his share of damages to have a claim against other jointly liable parties for the excess; i.e., it apportions responsibility among those at fault.

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What are the limitations of contribution?

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Contribution defendant must be originally liable to plaintiff. Also, contribution is not applicable to intentional torts.

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What is comparative contribution?

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Most states have a comparative contribution system, whereby contribution is imposed in proportion to the relative fault of the various defendants.
~ In a minority of states, apportionment is in equal shares regardless of degrees of fault.

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What is indemnity?

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Indemnity involves shifting the entire loss between or among tortfeasors.
~ I.e. Vicarious Liability is: where one is held for damages simply because of a specific relationship, this party may seek indemnification from the person whose conduct actually caused the damage.
Indemnity is available in the following circumstances:
(i) by contract,
(ii) in vicarious liability situations,
(iii) under strict products liability, and
(iv) in some jurisdictions, where there has been an identifiable difference in degree of fault
(e.g., retailers who negligently rely on a product's condition may receive indemnification from the manufacturer who negligently manufactured it)

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How does Indemnity work Under Strict Products Liability?

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Each supplier of a defective product, where strict liability rules apply, is liable to an injured customer, but each supplier has a right of indemnification against all previous suppliers in the distributive chain; the manufacturer is ultimately liable if the product was defective when it left its hands.

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How do indemnification and comparative contribution relate to each other?

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As noted above, most comparative negligence states have adopted a comparative contribution system, where contribution is in proportion to the relative fault of the various defendants.
~ This approach also supplants indemnification rules based on identifiable differences in degree of fault.

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What is a Survival act?

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Survival acts allow one's cause of action to survive the death of one or more of the parties.
~ The acts apply to actions involving torts to property and torts resulting in personal injury.
~ However, torts invading intangible personal interest (e.g., defamation, invasion of right of privacy, malicious prosecution) expire upon victim's death.
~ At common law, a tort action abated at the death of either the tortfeasor or the victim.

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What is a Wrongful Death Act?

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Wrongful death acts grant recovery for pecuniary injury resulting to the spouse and next of kin.
~ A decedent's creditors have no claim against the amount awarded.

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In a Wrongful Death suit, does a deceased's contributory negligence reduce recovery?

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Recovery is allowed only to the extent that the deceased could have recovered in action if he had lived (e.g., deceased's contributory negligence reduces recovery in comparative negligence states).

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What is Tortious Interference With Family Relationships?

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Husband-Wife situation: Either spouse may bring an action for indirect interference with consortium and services caused by defendant's (third-partie's) intentional or negligent tortious conduct against the other spouse.
~ Note also that A parent may maintain an action for loss of a child's services as a result of defendant's tortious conduct, whether intentional or negligent.
~ note that A child, however, has no action in most states against one who tortiously injures the parent.

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These tortious interference actions are derivative - what does this mean?

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This means any defense that would prevent recovery by the injured family member, (e.g., her own contributory negligence), will also prevent recovery in the derivative action for interference with the family relationship.

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What are Intra-family Tort Immunities?

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Under the traditional view, one member of a family unit could not sue another in tort for personal injury.
~ Most states have abolished husband-wife immunity.
~ A slight majority have also abolished parent-child immunity (but generally do not allow children to sue merely for negligent supervision).
~ Those that retain the immunity do not apply it:
(i) for intentional tortious conduct, and (ii) in automobile accident cases to the extent of insurance coverage.

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What is the status of Governmental Immunity?

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In varying degrees, federal, state, and municipal tort immunity has been eliminated.
~ Where it survives, immunity attaches to governmental, not proprietary, functions.

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Where does immunity still attach under the Federal Tort Claims Act?

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Under the Federal Torts Claim Act, the United States has waived immunity for tortious acts.
~ However, immunity will still attach for:
(i) assault, (ii) battery, (iii) false imprisonment, (iv) false arrest, (v) malicious prosecution, (vi) abuse of process, (vii) libel and slander, (viii) misrepresentation and deceit, and (ix) interference with contract rights.

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What is the status of Governmental Immunity by state and local governments?

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Most states have substantially waived their immunity to the same extent as the federal government.
~ In municipal immunity situations, contrast "governmental" functions (i.e., functions that could only be performed adequately by the government) and "proprietary" functions (functions that might as well have been provided by a private corporation).
~ Courts limit application of sovereign immunity by not granting it for proprietary functions.

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What is Immunity of Public Officials?

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Public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose.
~ Liability attaches, however, for ministerial acts (which generally involve lower-level officials).

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What are Discretionary and Ministerial acts of government?

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~ Discretionary: that which takes place at the planning or decisionmaking level;
~ Ministerial: performed at the operational level of government (e.g., repairing traffic signals, driving a vehicle).
~ Note that Government Contractors may assert the immunity defense in a products liability case if the contractor conformed to reasonable, precise specifications approved by the government and warned the government about any known dangers in the product.

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What is the status of Charitable Immunity?

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Majority of jurisdictions have abrogated (abolished, done away with) the common law rule of charitable immunity either by statute or decision.