Torts

Front 1

1 - What must P prove to establish a Prima Facie case of intentional tort?

(1 of 2)

Back 1

1. Act by D - Volitional Movement by D

2. Intent
- Specific
- General (actor knows with "substantial certainty" that consequences will result)

2b. Transferred Intent - see next card

Front 2

3 - Transferred Intent Rule

Back 2

- Intent can be transferred from person to person and tort to tort

- Applies ONLY to:
* Battery
* Assault
* False Imprisonment
* Trespass to Land
* Trespass to Chattels

Front 3

4 - The "Supersensitive" Plaintiff Rule

Back 3

- P's supersensitivities are irrelevant.

- UNLESS D knew of them.

- Treat P as an "average person" (unless you know of the supersensitivity)

Front 4

5 - Intentional Torts to the Person

Back 4

1. Battery

2. Assault

3. False Imprisonment

4. IIED

Front 5

6 - Intentional Torts to Property

Back 5

1. Trespass to Land

2. Trespass to Chattels

3. Conversion

Front 6

7 - The "Incapacitated" Defendant Rule

Back 6

- EVERYONE is liable for intentional torts.

- Includes:
* young children
* mental incompetents
* very drunk persons

Front 7

8 - Prima Facie case for Battery

Back 7

1. Harmful or Offensive Contact
* i.e., an unpermitted contact

2. With Plaintiff's Person
* Do not have to actually touch P's body
* Includes anything connected to P's person
* CONSTRUE VERY LIBERALLY

Front 8

9 - Prima Facie case for Assault

Back 8

1. Apprehension
- Must be reasonable
- Not FEAR or INTIMIDATION
- Apparentability creates a REASONABLE APPREHENSION

2. Of an Immediate Battery
- MUST BE IMMEDIACY
- Words alone are NOT ENOUGH
- YOU NEED WORDS with CONDUCT
--> Words can also UNDO conduct

* BATTERY WINS OVER ASSAULT

Front 9

10 - Prima Facie case for False Imprisonment -
Sufficient Act of Restraint

Back 9

1. Sufficient Act of Restraint
Question: Does it look sufficient?
- Threats are enough.
- Inaction is enough IF there has been an EXPRESS OR IMPLIED understanding that that the D would do something.
- Even a VERY SHORT time period will suffice.
- P must KNOW of confinement at that time. EXCEPTION: shoplifting detentions

Front 10

11 - Prima Facie case for False Imprisonment -
Bounded Area

Back 10

2. Bounded Area
- P's freedom of movement in ALL directions limited.
- An area is NOT bounded if there is:
(a) a REASONABLE means of escape, and
(b) P knows of it.

Front 11

2 - What must P prove to establish a Prima Facie case of intentional tort?

(2 of 2)

Back 11

3. Causation - result must have been legally caused by D's acts or something set in motion by him. Satisfied if D's conduct was a SUBSTANTIAL FACTOR in bringing about the injury.

Front 12

12 - Prima Facie case for Intentional Infliction of Emotional Distress

(1 of 2)

Back 12

--> Consider this tort as a "fall back"

1. OUTRAGEOUS CONDUCT
- Must be extreme
- CHECKLIST-->Ways to make non-outrageous conduct outrageous
(a) Conduct is CONTINUOUS
(b) Type of P (young child, elderly person, pregnant woman, supersensitive adult)

Front 13

13 - Prima Facie case for Intentional Infliction of Emotional Distress

(2 of 2)

Back 13

OUTRAGEOUS CONDUCT > Checklist
1(c) Type of Defendant (cont'd)
- Common carriers and inkeepers
- Deal with them HARSHLY
- Only applies if P is passenger or guest

2. DAMAGE - clear proof of substantial emotional distress

Front 14

14 - Prima Facia case for Trespass to Land

Back 14

1. Act of Physical Invasion by D
- Does not require D to personally go onto land (throwing a rock or pushing someone will suffice)
- SOME physical object must go onto land

2. Of P's Land
- Also includes space going up and down from surface

Front 15

15 - Prima Facia case for Trespass to Chattels and Conversion

Back 15

1. Trespass to Chattels = SOME DAMAGE

2. Conversion = DISPOSSESSION

Front 16

16 - Defenses to Intentional Torts

Back 16

1. Consent

2. Self-defense, Defense of Others, Defense of Property

Front 17

17 - Consent

(1 of 2)

Back 17

- Also a good defense to DEFAMATION & PRIVACY
- Three-step analysis
1. Determine if P had CAPACITY. If not--no consent.
2. Determine if consent was EXPRESS or IMPLIED.
- EXPRESS = words
- What can UNDO EXPRESS CONSENT? --> Mistake, fraud, or coercion

Front 18

18 - Consent

(2 of 2)

Back 18

- IMPLIED = CUSTOM & USAGE and/or P's CONDUCT

3. Determine if D stayed within the boundaries of any consent given.
- If not, privilege is lost.

Front 19

19 - Self-Defense,
Defense of Others,
Defense of Property
(3-part test)

(1 of 3)

Back 19

Three-Step Analysis
1. Determined the TIMING REQUIREMENT is satisfied

- Now occurring
- Just about to occur
- "Hot Pursuit" = if in "hot pursuit," tort still occurring. --> Must be a trespass to chattel

Front 20

20 - Self-Defense,
Defense of Others,
Defense of Property
(3-part test)

(2 of 3)

Back 20

2. Determine if DEFENSE TEST is satisfied

- Only need a reasonable belief tort committed
- Generally, no duty to retreat using serious force if:
* Can do safely
* It is not in his/her own
home

Front 21

21 - Self-Defense,
Defense of Others,
Defense of Property
(3-part test)

(3 of 3)

Back 21

3. Determine if D used propert amount of FORCE

- Reasonable Force = Self Defense & Defense of Others
- Reasonable Force = Defense of Property
--> NEVER DEADLY FOR PROPERTY

Front 22

22 - Bar Exam Testing Areas

(1 of 2)

Back 22

1. DETERMINE WHETHER D IS LIABLE TO P FOR ANY GIVEN TORT

(a) Can P establish a Prima Facie case?
* NO? Stop.
* YES? Go to (b).

(b) Can D establish any affirmative defenses?

Front 23

23 - Bar Exam Testing Areas

(2 of 2)

Back 23

2. TO DETERMINE WHETHER A "GENERAL CONSIDERATION" HAS APPLICABILITY TO THESE FACTS, AND IF SO, HOW?

- Vicarious Liability
- Multiple D Issues
- Tort Immunities

Front 24

24 - Necessity

Back 24

Two-Step Process

1. Make sure the tort defended against is a PROPERTY TORT

2. Determine if it is a PUBLIC or PRIVATE necessity case.
* PUBLIC = For the benefit of many. Absolute and Unlimited privilege.
* PRIVATE = For the Benefit of a limited member. -->D liable for ACTUAL DAMAGE caused

*NECESSITY PREVAILS OVER DEFENSE OF PROPERTY

Front 25

25 - Harm to Economic and Dignitary Interests

Back 25

1. Defamation

2. Invasion of Privacy

3. Misrepresentation
(a) Intentional Misrepresentation
(b) Negligent Misrepresentation

4. Interference with Business Relations

Front 26

26 - Prima Facie Case for Defamation

(1 of 3)

Back 26

1. Defamatory Statement about this P

- Defamatory statement of FACT
- Could use "Interpretation Process"

Front 27

27 - Prima Facie Case for Defamation

(2 of 3)

Back 27

2. Publication

- Communication to third person
- Intentionally or Negligent
- TEST: REASONABLE FORSEEABILITY
- Third person must be capable of understanding the defamatory content

Front 28

28 - Prima Facie Case for Defamation

(3 of 3)

Back 28

3. Injury to P's Reputation

- Presumed for every libel and slander per se (most)
- NOT presumed for slander NOT per se
- SPECIAL DAMAGES = $$$

Front 29

29 - Defamatory Statements -
"Interpretation Process"
(list)

(1 of 3)

Back 29

Used where statement:

(1) is not clearly defamatory on its face and/or

(2) does not clearly refer to P on its face

Front 30

30 - Defamatory Statements - "Interpretation Process"

(2 of 3)

Back 30

(1) If a statement is not clearly defamatory on its face, P must plead EXTRINSIC FACTS (inducement) and establish defamatory meaning from them by INNUENDO

Front 31

31 - Defamatory Statements - "Interpretation Process"

(3 of 3)

Back 31

(2) If statement does not clearly refer to P on its face, P must establish COLLOQUIUM to show he was the one intended.

Front 32

32 - Slander Per Se Categories

Back 32

1. Business or profession

2. Crime involving moral turpitude

3. Loathsome Disease (Leprosy and V.D.)

4. Importing Unchastity to Woman - MOST TESTED

Front 33

33 - Defenses to Defamation

Back 33

1. Consent - same analysis

2. Truth - unless 1st Amendment case

3. Absolute and Qualified Cases

Front 34

34 - Truth as a Defense to Defamation

Back 34

An absolute defense to regular defamation

Front 35

35 - Absolute and Qualified Privilege as a Defense to Defamation

(1 of 2)

Back 35

1. ABSOLUTE PRIVILEGES - CANNOT BE LOST IF ABUSED
- Communications between spouses
- 3 governmental branches (executive, legislative, judicial)

Front 36

36 - Absolute and Qualified Privilege as a Defense to Defamation

(2 of 2)

Back 36

2. QUALIFIED PRIVILEGES - CAN be lost if abused

- WHEN to give: if you want to encourage this type of communication - give to D.

- FAVORITE FACT PATTERN: The Reference Letter

Front 37

37 - When is the 1st Amendment at issue in a Defamation case?

Back 37

When the matter is of PUBLIC CONCERN, the 1st Amendment is at issue in a ____________ case.

Front 38

38 - What do we add and subtract if the 1st Amendment applies in a Defamation case?

Back 38

ADD:
1. Prima Facie requirement of FALSITY
2. Prima Facie requirement of FAULT

SUBTRACT
1. Defense of TRUTH because the prima facie case is done BEFORE the defenses arise.

Front 39

39 - Prima Facie requirement of Falsity in Defamation Case

Back 39

- ONLY if 1st Amendment APPLIES

- P must prove statement was false

Front 40

40 - What types of "Fault Conduct" are there for purposes of making a Prima Facie case for FAULT relating to Defamation?

Back 40

1. Intentional

2. Reckless

3. Negligent

Front 41

41 - Prima Facie Requirement of Fault in a Defamation case

(1 of 3)

Back 41

1. P must Prove D was at Fault

2. What else does P have to prove?

- Public Figure vs Private Figure

Front 42

42 - Prima Facie Requirement of Fault in a Defamation case (Public Figure)

(2 of 3)

Back 42

PUBLIC FIGURE = Falsity & Fault
- Must prove Intentional or Reckless
- If PUBLIC FIGURE, assume PUBLIC CONCERN. 1st Amendment applies.

Front 43

43 - Prima Facie Requirement of Fault in a Defamation case (Private Figure)

(3 of 3)

Back 43

PRIVATE PERSON

- Must prove Negligence
- BUT...if P can prove MALICE, then do it-->Punitive Damages

Front 44

44 - Common Law Defamation (analysis)

(1 of 3)

Back 44

COMMON LAW DEFAMATION ANALYSIS

1. Does the statement involve a matter of PUBLIC CONCERN?
--YES-->Go to Constitutional Defamation
--NO-->Go to #2

Front 45

45 - Common Law Defamation (analysis)

(2 of 3)

Back 45

COMMON LAW DEFAMATION ANALYSIS
2. Is the D's statement DEFAMATORY CONCERNING THE P and PUBLISHED (intentionally/negligently communicated to a 3rd person)?
--YES-->Go to #3
--NO-->NO LIABILITY FOR DEFAMATION

Front 46

46 - Common Law Defamation (analysis)

(3 of 3)

Back 46

COMMON LAW DEFAMATION ANALYSIS
3. Is the statement:
- LIBEL or SLANDER PER SE? -->Damages presumed, D liable for defamation
- SLANDER NOT WITHIN PER SE CATEGORIES? If P shows SPECIAL damages, D is liable for defamation.

Front 47

47 - Invasion of Right to Privacy

(1 of 4)

Back 47

4 SEPARATE & DISTINCT TORT BRANCHES

1. Appropriation by D of P's name or pircutre for D's Commercial Advantage - limited to promotion of goods and services

Front 48

48 - Invasion of Right to Privacy

(2 of 4)

Back 48

4 SEPARATE & DISTINCT TORT BRANCHES

2. Intrusion by D into P's Privacy or Seclusion
- Would a REASONABLE PERSON object to this intrusion?
- Consider IIED. If "continuous conduct" is outrageous,

Front 49

49 - Invasion of Right to Privacy

(3 of 4)

Back 49

4 SEPARATE & DISTINCT TORT BRANCHES

3. Publication of Facts Placing P in a FALSE LIGHT
- Wide dissemination
- NY Times v. Sullivan - "malice test" applies where matter is of public concern

Front 50

50 - Invasion of Right to Privacy

(4 of 4)

Back 50

4 SEPARATE & DISTINCT TORT BRANCHES

4. Publication of Private Facts about P.
- Common Sense Fact Analysis - would a reasonable person object to WIDE dissemination?
- Intimate Romantic Restaurant Hypo

Front 51

51 - Defenses to Invasion of Right to Privacy

Back 51

1. CONSENT

2. The DEFAMATION PRIVILEGES
(a) Absolute Privileges
(b) Qualified Privileges

Front 52

52 - Misrepresentation -
Prima Facie case

Back 52

1. MISREPRESENTATION
(a) Misstatement of FACT, not an OPINION unless rendered by someone with superior skill in th area.
(b) Silence is not enough. Must affirmatively misspeak.
(c) EXCEPTIONS: Fiduciary relationship, real property sale where P cannot reasonably discover material facts, D's prior statements have misled P.

Front 53

53 - Misrepresentation -
Prima Facie case

(1 of 2)

Back 53

2. SCIENTER
(a) Malice - statement made either (1) knowing it was false, or (2) with reckless disregard as to its truth/falsity

Front 54

54 - Misrepresentation -
Prima Facie Case

(2 of 2)

Back 54

3. Intent to Induce Reliance

4. Justifiable Reliance
- NO DUTY TO INVESTIGATE

5. CAUSATION/DAMAGES
- NO DEFENSES

Front 55

55 - Negligent Misrepresentation

Back 55

1. Negligence replaces Scienter

2. Can ONLY be used in a COMMERCIAL fact pattern

Front 56

56 - Interference with Business Relations -
Prima Facie Case

Back 56

1. Valid Relationship Between P and 3rd Person
- EXISTING or PROSPECTIVE (*almost never win w/ Prospective)
2. D's Knowledge of Relationship
3. Intentional Interference
4. Damage

Front 57

57 - Defenses to Interference with Business Relations

(1 of 2)

Back 57

1. PRIVILEGES - question of FACT
(a) D's "persuasion" conduct
- Mode of persuasion
- Physical aggression vs. oral suggestion

Front 58

58 - Defenses to Interference with Business Relations

(2 of 2)

Back 58

1. PRIVILEGES - question of FACT (con't)
(b) Relationship between the Parties Facts
- P and D: "Competitor's Privilege" applies to prospective relationships
- D and 3rd person: Does D have financial interest in 3rd person? If so = PRIVILEGE

Front 59

59 - Prima Facie Case for Negligence

Back 59

1. DUTY
- Forseeable P
= Standard of Care

2. BREACH
3. CAUSATION
4. DAMAGES

Front 60

60 - Core Parts of Duty Analysis

Back 60

1. A Foreseeable P

2. A Standard of Care

Front 61

61 - Negligence -
Forseeable Plaintiff

(1 of 2)

Back 61

- Duties of care are only owed to forseeable P's.
- P will ALMOST ALWAYS be foreseeable.
- EXCEPTION-->UNFORESEEABLE P FACT PATTERN (ex: negligent conduct directed toward clearly foreseeable P ultimately injures someone else.

Front 62

62 - Negligence -
Forseeable Plaintiff

(2 of 2)

Back 62

- Approach 1: Andrews - EVERYONE IS FORESEEABLE!
- Approach 2: CARDOZO - FORESEEABLE ZONE OF DANGER. Was 2nd P in the foreseeable zone of danger? If yes, then foreseeable, and a duty is owed.
- MAJORITY RULE = CARDOZO

Front 63

63 - Standards of Care Exam Approach

Back 63

1. Determine what standard applies

2. Determine what the standard is

Front 64

64 - Negligence - Standards of Care (List)

Back 64

1. Reasonable Person Standard
2. Children Standard
3. Owner-Occupier Standards
4. The Professionals Standard
5. Common Carrier & Innkeepers' Standard

Front 65

65 - Neg --> Prima Facie Case --> Duty
The Reaonable Person Standard

(1 of 2)

Back 65

- An OBJECTIVE test standard
- HOW DOES IT WORK?
1. We "invent" an average person
2. We "assign" this person traits & characteristics
3. We "evaluate" reasonableness of D's conduct NOT according to his/her own traits & characteristics, but rather those of our hypothetical person

Front 66

66 - Neg --> Prima Facie Case --> Duty
The Reaonable Person Standard

(2 of 2)

Back 66

--> D's PHYSICAL CHARACTERISTICS will be taken into account

--> DISABLED DEFENDANTS: If D knows of his/her disability, supposed to act as a reasonable person with it would act

Front 67

67 - Neg --> P.F. Case --> Duty --> The Children Standard

Back 67

- Children under 4 are deemed incapable of negligence

- However, LIABILITY POSSIBLE FOR INTENTIONAL TORT

- STANDARD-->Child of LIKE age, intelligent, and experience

- Where child engaged in ADULT activity

Front 68

68 - Neg --> P.F. Case --> Duty -->The Professionals Standard

Back 68

- Mostly doctors

- A reasonable professional in the same or similar communities

- Specialists-->Take expertise into account (expect more from heart specialist working on heart than a G.P.

Front 69

69 - Neg --> P.F. Case --> Duty --> Common Carrier and Innkeepers Standard

Back 69

- Held for even SLIGHT negligence

- P MUST BE A PASSENGER OR A GUEST

Front 70

70 - Dangerous Condition Standards

Back 70

- P's status is relevant

- Because owner-occupier is responsible for different types of dangerous conditions depending on the type of P.

Front 71

71 - The Activity Standard

Back 71

- Ordinary negligence case and P's status is irrelevant

Front 72

72 - Negligence --> Prima Facie Case --> Duty --> The Owner-Occupier Standards

(3 STEPS)

(1 of 2)

Back 72

1. Make sure D is an owner-occupier, or in privity with one (PRIVITY = Family Members, Employees)

2. Determine if the injury occurred on or off the land

Front 73

73 - Negligence --> Prima Facie Case --> Duty --> The Owner-Occupier Standards

(3 STEPS)

(2 of 2)

Back 73

3. (Assuming injury is ON the land):

- THRESHOLD INQUIRY = determine if P is an UNDISCLOSED trespasser. If so, NO DUTY owing them.

- IF ANY OTHER P = determine what cause the injury. Was it an ACTIVITY or a DANGEROUS CONDITION?

-->ACTIVITY: anything you're doing on the land

-->DANGEROUS CONDITION: hole in the ground, defect in the wall

Front 74

74 - Negligence --> Duty

The Type P / Type Dangerous Condition Checklist

Back 74

1. Discovered Trespasser
- O/O responsible for artificial conditions, involving a risk of serious injury, that the O/O knows of

2. Lisensee
- O/O responsible for ALL dangerous conditions, the O/O knows of

3. Invitee
- On Land for owner-occupier purpose (business, public invitees)
- O/O responsible for dangerous conditions the O/O should know of.

Front 75

75 - Discharge of Duties

Back 75

- Duties may be discharged by either warning of or making safe the dangerous condition

- EXAM - lack for whether an adequate warning was issued.

Front 76

76 - Very Obvious Dangerous Conditions

Back 76

- No liability

Front 77

77 - Negligence --> Duty

Infant Trespassers -
Attractive Nuisance Doctrine

Back 77

- Child must be able to show that they DID NOT understand the risk involved.

- Child must be able to show that the dangerous condition ATTRACTED him/her to it

Front 78

78 - Negligence - The Statutory Standards of Care TEST

(1 of 2)

Back 78

1. P must fall within PROTECTED CLASS

2. Statute must be DESIGNED TO PREVENT THIS KIND OF HARM (usually won't be on the exam)

CON'T ON NEXT CARD

Front 79

79 - Negligence - The Statutory Standards of Care TEST

(2 of 2)

Back 79

- If statute inapplicable-->APPLY A DIFFERENT STANDARD OF CARE

- Effect of Non-Compliance with an Applicable Statute - NEGLIGENCE PER SE

- COMPLIANCE DOES NOT AUTOMATICALLY ESTABLISH DUE CARE if the circumstances require more.

Front 80

80 - Negligence Per Se

Back 80

- There will be a CONCLUSIVE PRESUMPTION Of NEGLIGENT CONDUCT on the D's part

- DOES NOT MEAN D IS LIABLE FOR NEGLIGENCE

- Remember: must have non-compliance with an applicable statute

Front 81

81 - Negligence --> Duty

Excuse for Statutory Non-Compliance

Back 81

1. Compliance would be more dangerous

2. Compliance would be impossible

Front 82

83 - Negligence --> Duty --> Duty Problems-->

Negligent Infliction of Emotional Distress

(2 Requirements)

Back 82

1. P must suffer PHYSICAL INJURY. Shock is enough.

2. P must be within the TARGET ZONE of D's negligent conductg

- P can recover if P is (1) a close relative and (2) who perceived the injury (MODERN TREND)

Front 83

84 - Negligence --> Duty --> Affirmative Duty to Act

Back 83

No AFFIRMATIVE DUTY TO ACT
- Exceptions:
1. Special Relationship Between Parties
2. Duty to Control 3rd Persons - Right to Ability to Control (employers/employees, parents/children)
- Know or should know it's required
3. Assumption of Duty to Act by Acting
4. P's Peril due to D's negligence

Front 84

85 - Breach

Back 84

- Breach = Negligent Conduct

- How do you determine if breach? = Seeing whether or not the D has met the STANDARD OF CARE

Front 85

86 - Res Ipsa Loquitor -

How do you know when it's an issue?

Back 85

- Fact pattern will indicate that P does not have enough GOOD EVIDENCE to establish negligent conduct on D's part.

Front 86

87 - Res Ipsa Loquitor -

Probability Inference Test

Back 86

1. Inference of Negligence - this usually would not happen unless someone was negligent

2. Negligence Attributable to D - Evidence connects D with Negligence
- Most often proven by showing the instrumentability causing the injury was within D's EXCLUSIVE CONTROL

3. P not contributorily negligent

Front 87

88 - "Res Ipsa Result" Rules

Back 87

1. If Res Ipsa applies, the P DOES NOT WIN

2. P's case will survive the motion for a Directed Verdict, and will go to the jury with an inference of Negligence

3. D does not have to do anything rebut.

Front 88

89 - Causation

Back 88

1. ACTUAL CAUSATION

2. PROXIMATE CAUSATION (LEGAL CAUSATION)

Front 89

89 - Negligence -

Actual Causation

Back 89

- TRUE CAUSATION

- Q--> Did D's negligent conduct ACTUALLY cause the injury?

- TESTS

1. "BUT FOR" test
2. "SUBSTANTIAL FACTOR" test
3. "ALTERNATIVE CAUSES" test

Front 90

90 - Actual Causation -

"BUT FOR" test

Back 90

- But for D's conduct, would this injury have occurred?

- If answer if "NO," almost ALWAYS DIMISS CASE IN D's FAVOR. No causation.

- Sometimes this answer is wrong because:
(1) Actual Causation, or
(2) Strong Probability of it (in this case, USE ANOTHER TEST)

Front 91

91 - Actual Causation -

"SUBSTANTIAL FACTOR" test

Back 91

- D's conduct was substantial factor in causing the injury

- Ex: 2 hot-rodders simultaneously roar by a horse, causing it to go wild and injure P (rider). EACH DRIVER'S CONDUCT WAS A SUBSTANTIAL FACTOR IN CAUSING INJURY.

Front 92

92 - Actual Causation -

"ALTERNATIVE CAUSES" test

Back 92

- Two or more negligent D's, but uncertainty as to which caused the injury.

- Ex: 2 hunters negligently fire guns in P's direction. P is hit, but can't tell which gun. --> Let 2 shooters try and determine whose gun shot P. If cannot do it, BOTH LIABLE.

Front 93

93 - Proximate Causation -

(Legal Causation)

Back 93

- PROXIMATE CAUSATION is a way for the jury to let off a NEGLIGENT D who ACTUALLY CAUSED an injury, based on lack of FORSEEABILITY.

- DIRECT cause case - uninterrupted chain of events between NEGLIGENT ACT & INJURY (90% of the time, foreseeable result)

- INDIRECT cause case - Between Negligent Act & Injury there is intervening force which combines with prior act to cause injury

Front 94

94 - Two Rules of Proximate Causation

Back 94

1. If result was UNFORESEEABLE, LET D GO!

2. If result was FORESEEABLE, HOLD D LIABLE.
- EXCEPTION = In an indirect cause case, if the intervening force was an UNFORESEEABLE INTENTIONAL TORT or CRIME, D will prevail even though the result was foreseeable. -->Intervening force is NOT enough

Front 95

95 - The "Egg-Shell Thin Skulled Plaintiff" Fact Pattern

Back 95

- Indirect Cause Cases

- NOT an unforeseeable result case

- It is ONLY necessary that one be able to foresee an INJURY, not the EXTENT of the injury.

Front 96

96 - Damages

Back 96

1. Property Damage Rule - Take P's property as you find it.

2. Additional Rules:
(a) DUTY TO MITIGATE
(B) COLLATERAL SOURCE RULE - Damages are not reduced because of payments from other sources (e.g., Health Insurance)

Front 97

97 - Defenses to Negligence

Back 97

1. Contributory Negligence

2. Comparative Negligence

3. Assumption of the Risk

Front 98

98 - Contributory Negligence

Back 98

- In a Contributory Negligence state, ANY CONTRIBUTORY NEGLIGENCE COMPLETELY BARS RECOVERY.

- TYPES

(1) KNOWING Contributory Negligence (in combination w/ IMPLIED ASSUMPTION OF RISK)

(2) UNKNOWING Contributory Negligence

Front 99

99 - Implied Assumption of Risk Test

Back 99

1. One KNEW of the risk

2. One VOLUNTARILY proceeded in the face of the risk

EXAM TRICK: to recognize the fact patter where BOTH Contributory Negligence and Implied Assumption of Risk are available. Where P UNREASONABLY & VOLUNTARILY TAKES ON A KNOWN RISK.

Front 100

100 - Exceptions to Implied Assumption of the Risk

Back 100

1. No OTHER VIABLE ALTERNATIVE

2. EMERGENCY - P's or ANOTHER's

- Example: P jumps in front of negligently driven care and is struck. No P liability.

Front 101

101 - Contributory Negligence System vs. Comparative Negligence System

(1 of 2)

Back 101

1. EFFECT OF P's CONTRIBUTORY NEGLIGENCE

- In CONTRIBUTORY Neg. State - ANY Contributory Neg COMPLETELY BARS recovery.

- In COMPARATIVE Neg. State - Contributory Neg REDUCES the RECOVERY in a Comparative Neg. State

Front 102

102 - Contributory Negligence System vs. Comparative Negligence System

(2 of 2)

Back 102

2. IMPLIED ASSUMPTION OF RISK
- Contributory = YES
- Comparative = NO

3. LAST CLEAR CHANCE DOCTRINE
- Contributory = YES
- Comparative = NO

4. D's TORTIOUS CONDUCT WAS "RECKLESS"
- Contributory = NOT A DEFENSE
- Comparative = OFFSET THE AWARD

Front 103

103 - Last Clear Chance Doctrine

(see Exam Tip)

Back 103

Contributorily negligent P successfully contends that AFTER their negligence, D still had the last clear chance to avoid the accident and, thus, contributory negligence should be disregarded as a defense

- EXAM TIP = NOT A DEFENSE! It is P's argument to get around the defense of Contributory Negligence.

Front 104

104 - "Partial" vs. "Pure" Comparative Negligence

Back 104

1. Partial Comparative Neg State
- NO RECOVERY if one was more negligent than the other party

2. Pure Comparative Neg State
- Even the more negligent party can recover

Front 105

105 - Strict Liability -

Prima Facie Case

Back 105

- Same as for NEGLIGENCE wwith ONE EXCEPTION:

Negligence standard of care replaced by an ABSOLUTE DUTY TO MAKE SAFE

Front 106

106 - Strict Liability -

Defenses

(1 of 2)

Back 106

1. CONTRIBUTORY NEGLIGENCE STATE

- Knowing Contributory Negligence - a COMPLETE DEFENSE-->PLAINTIFF RECOVERS NOTHING

- Unknowing Contributory Neg - NO DEFENSE --> PLAINTIFF RECOVERS ALL

(CON'T NEXT CARD)

Front 107

107 - Strict Liability -

Defenses

(2 of 2)

Back 107

2. COMPARATIVE NEGLIGENCE STATE

- Knowing & Unknowing Contributory Neg - BOTH CAN BE OFFSET against the recovery ---> Plaintiff RECOVERS what they would recover under that state's Comparative Negligence rules (i.e., Pure vs. Partial Comparative Neg.)

Front 108

108 - Strict Liability -

Animals & Ultra Hazardous Activities

(See Exam Tip)

Back 108

1. ANIMALS
- DOGS = One Free Bite
- NON-DOMESTIC "PETS" = Strict Liability (DOES NOT MATTER IF "TAMED")

2. ULTRAHAZARDOUS ACTIVITIES
- "Super Careful" Ds are IRRELEVANT!

*EXAM: Any alternative which refers to D's CONDUCT is part of a FAULT ANALYSIS

Front 109

109 - Products Liability -

Requirements

Back 109

**WHO? Anyone can be held liable so long as 2 requirements met:

1. DEFECT CAUSING THE INJURY MUST HAVE EXISTED AT THE TIME THE PRODUCT LEFT D's CONTROL
- Inference the defect existed when it left any given D's control if since that time the product has moved through NORMAL CHANNELS of distribution.

2. PLAINTIFF NEEDS A WORKABLE THEORY
- Negligence
- Strict Liability
- Warranty Liability (mostly contracts)

Front 110

110 - Products Liability -

Negligence Theory

Back 110

- Focus is on D's conduct
- Negligent Conduct Possibilities
1. Design
2. Manufacture
3. Warnings
4. Inspections
- Res Ipsa is available
- P = Anyone within the foreseeable Zone of Risk, including bystanders
= D = ALMOST ALWAYS Manufacturers. Almost never Retailers/Wholesalers. (This includes those who label or assemble.)

Front 111

111 - Products Liability -

Strict Liability Theory

Back 111

- FOCUS NOT on D's CONDUCT

- An "Unreasonably Dangerous Condition"

- PLAINTIFF = Anyone within the foreseeable Zone of Risk, including bystanders

- DEFENDANT = EVERYONE. Indemnification applies.

- Warranty Breach = Strict Liability.

Front 112

112 - Products Liability -

Exam Tips

Back 112

1. WARNINGS - Adequate warnings will generally insulate from liability.

2. FEASIBLE ALTERNATIVES APPROACH - If one could have cured a defect for a minor amount of money relative to the risk involved they SHOULD HAVE done it --> A WARNING WILL NOT SAVE THEM.

3. PRODUCT USE INCIDENTAL TO PERFORMANCE OF SERVICES - Strict Liability theories unavailable.

Front 113

113 - Nuisance -

Types

Back 113

1. PRIVATE NUISANCE

- Substantial, Unreasonable interferences with one's USE and ENJOYMENT OF LAND (-This is where the action is).

2. PUBLIC NUISANCE

- Act which Unreasonably interferes with the HEALTH SAFETY or PROPERTY RIGHTS OF THE COMMUNITY.

Front 114

114 - Nuisance -

Who Can Bring Suit?

Back 114

1. PRIVATE NUISANCE - P must have either POSSESSION or the right to IMMEDIATE POSSESSION

2. PUBLIC - Private person may recover ONLY IF they have suffered UNIQUE damage not suffered by public.

Front 115

115 - Nuisance -

Standard

Back 115

Conduct must be objectionable to an average person. OBJECTIVE STANDARD.

Front 116

116 - Respondeat Superior

Back 116

- ALL TORT CASES

- RULE - Employers liable for torts of employees committed within the scope of employment.

- Intentional Torts NOT WITHIN THE SCOPE OF EMPLOYMENT
***Exceptions: (1) Force is authorized.
(2) Friction generated by this type of employment.
(3) Employee trying to further employer's business.

--> ON EXAM: "Winning" alternative focused on EXCEPTIONS

Front 117

117 - Vicarious Liability

(1 of 2)

Back 117

- Liability for the torts of others

1. AUTOMOBILE OWNERS/DRIVERS
- Exceptions: (1) Household members usingn w/ permission; (2) Anyone using w/ permission

CON'T ON NEXT CARD

Front 118

118 - Vicarious Liability

(2 of 2)

Back 118

2. PARENTS/CHILDREN - Parents NOT vicariously liable for the torts of their children.
-EXCEPTION: Potential torts up to LIMITED AMOUNTS

--> EXAM = know when VICARIOUSLY liable or when person liable for their own NEGLIGENCE.

Front 119

119 - Releases

Back 119

A _________ DOES NOT release other tortfeasors unless it EXPRESSLY does so.

Front 120

120 - Joint & Several Lightly

Back 120

- Where multiple acts cause indivisible injury, EACH DEFENDANT will be potentially liable for the ENTIRE JUDGMENT AMOUNT.

- ASSUME joint tortfeasorts are jointly and severally liable.

Front 121

121 - Contribution

Back 121

- Used where a DEFENDANT, becuase of J&S Liability, has paid more than his/her fair share of the judgment & wants other DEFENDANTS to CONTRIBUTE.

- Where DEFENDANTS are more or less EQUALLY responsible, they will share the judgment amount EQUALLY.

- NOT APPLICABLE TO INTENTIONAL TORTS

Front 122

122 - Indemnification

Back 122

- Can get EVERYTHING back from other DEFENDANTS

- GROUNDS:

(1) Other DEFENDANT is a LOT MORE RESPONSIBLE
(2) VICARIOUS LIABILITY - get back from actual tortfeasor
(3) STRICT LIABILITY in product cases

Front 123

123 - Comparative Contribution

Back 123

- MAJORITY RULE

- DEFENDANTS will split judgment according to RELATIVE FAULT

- Effectively eliminates Contribution and the first ground for indemnification

Front 124

124 - Survival & Wrongful Death

Back 124

- DERIVATIVE RECOVERIES

- You will stand in NO BETTER POSITION than decedent would have stood in had he/she lived.

Front 125

125 - Tort Immunities

Back 125

1. INTRA-FAMILY = NO

2. CHARITABLE = NO

3. GOVERNMENTAL = Only under ONE condition:
- Immunity available for GOVERNMENTAL FUNCTIONS!
--> NOT PROPRIETARY! (Ask: Would a private business perform this function?)