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269 Cards in this Set
- Front
- Back
- 3rd side (hint)
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6 defenses to intentional torts
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consent, defense, shopkeeper, necessity,authority,justification
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three tort defenses using defenses
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self, others, property
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two types of necessity defense
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public, private
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public necessity defense
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complete defense if reasonable protects public at large
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private necessity defense
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protects small group, limited defense tort not liable, damages yes and no reasonable force to eject
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intentional torts person
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assault, battery, false imprisonment,iied, malicious prosecution, defamation, appropriation of image, intrusion,false light, disclosure
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reputation/privacy torts
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malicious prosecution, defamation, appropriation of image, intrusion,false light, disclosure
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intentional torts to property
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real, economic, personal
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real property torts
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trespass to land, nusiance
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intentional tort P must prove
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act, intent, causation, damages
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intentional torts defendant must prove
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defenses and privileges
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tort intent
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desire to cause consequence or knowledge to substantial certainty consequence will occur
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7 classic intentional torts
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battery, assault, false imprisonment, iied, trespass to land, trepass to chattels and conversion
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battery
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volitional act intent to cause harmful or offensive touching of another where touching occurs
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awareness required for battery
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no- sleeping beauty
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standard for harmful or offensive touching for battery
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objective reasonable person
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lack of informed consent in battery -traditional and modern
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traditional battery but modern negligence
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assault
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volitional act intent to place another in reasonable apprehension of immediate offensive or harmful touching that causes the apprehension
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false imprisonment
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volitional act intent to confine another in boundaries set by D using force or threat of force awareness of confinement or physical injury with no reasonable means of escape
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iied
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VA with extreme or outrageous conduct intended to cause or done with reckless disregard SED that actually results in SED
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trespass to land
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VA intended to cause entry on the land of another - mistake no defense
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trespass to chattels
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VA intended to affect or interfere with chattel of another resulting in minor interference or damage with some actual loss
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conversion
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VA intened to affect exercise dominoin or control over the chattel of another causng major interference with some actual loss -mistake no defense
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conversion damages
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FMV of chattel at time of conversion
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balancing factors for cnversion / trespass to chattels
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extent of damage, length of deprivation, actor's motive (theft always conversion) inconvenience and expense caused to owner
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4 elements of defense for docs
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patient incapable of consent, reasonable person would consent, immediate risk of injury, no religious objecion known to doc
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defense by force majority minority defense of others
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maj reasonable mistake allowed, min defendant steps into victim's shoes
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4 elemnt of recapture of chattel
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immediate deprivation by fraud followed by immediate hot pursuit using non deadly force
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can force be used to regain real prop
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no must do quiet title or ejectment
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two main elements of defense through reasonble force
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is D entitled to use force and was amount of force reaonble
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trespasser must be asked to leave peacefully
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Yes must request to leave
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4 elements of shopkeeper's prv
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reasn belief theft, reasonble time of confinement, reas manner of confinement, for reasonable investigation
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4 types of intentional tort injury
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person, reputation/privacy, economic, property
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liability widening - 5 categories
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sruvival statute, wrongful death statute, Respondiat super, independent contractor, joint enterprise
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general rule for independent contractors and exceptions
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hirer not liable unless nondelegable duties like fixing brakes, subcontractors in construction, abnormally dangerous activity, peculiar risk
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joint enterprise liability
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D gets benefits they must bear costs
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3 liability narrowing categories
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immunities, satisfaction, release
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common law and modern rule for release
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traditional release of one joint TF releases all - modern does not release all unless explicit specified in release
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3 types of D conduct for torts - SIN
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intent, strict liability, negligence
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iied - mere insults insufficient unless 3 cases
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innkeepers and common carriers, particular susceptibility or racial and ethnic insults
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4 problems with scope of consent for intentional tort defense
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exceeds scope, consent canceled, medical practitioners, consent to criminal act
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what is canceled consent for defense to int torts
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induced by misrepresentation must go to nature of touching - if not then collateral consent is not cancelled
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reasonable mistake in defense of property real - split
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if mistake goes to necessity to defend prop then mistake is defense but if mistake goes to right to be on prop then no mistake is allowed
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standard for determining consent as defense to intentional T
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reasonable person
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threshold element in Negligence duty affirmative act - majority and minority
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Maj D owes reasonable care to foreseeable Ps - Cardozo
Minority duty owed to one is duty owed to all - Adrews |
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maj and min positions on consent to criminal act as defense to intentional T
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maj consent is no defense, min can consent limited not include statutory rape
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3 exceptions to duty for affirmative act in negligence
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type of D such as lad occupiers lessors and Govt D's, type of injury such as pure econ loss, wrongful conception, NIED and other options
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defense of self against intentional T - mistake and deadly force
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reasonable mistake allowed for deadly force
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5 elements of negligence
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duty, standard of care, breach, actual cause, legal cause
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force to defend real property against intentional T
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may use reasonable force to protect possession but must ask P to leave peacefully - can only use non deadly mechanical means
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modern view of land occupiers duty
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reasonable care for all entrants
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traditional land occupiers standard of care
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RC warn and correct known conditions and inspect for unknown conditions
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chart for standard of care for land occupiers
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natural artificial activities
OTP no duty RC RC UNT NO NO NO KNWN NO WRN RC LCNS WRN WRN RC INVT RC RC RC where WRN = warn or make safe known dngers OTP = outside the premises UNKN = uknown trepassers KNWN = known trespassers LCN = non business vistor INVT business visitors |
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what are 3 factors for the traditional rule for land occupiers
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source of injury, outside the premises, status of entrant
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Plaintiff must show 4 elements for child trespasser recovery
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child likely to trespass, condition highly dangerous to children, due to age child unable to recognize danger, ris-burden of eliminating
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what is ACHDTTC
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artificial condition highly dangerous to trespassing chldren
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what does landowner owe trespassing child
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as invitee for artificial conditions only
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who are privileged entrants to land for negligence
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invitees licensees
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example of invitee versus licensee
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tax collector, police oficer
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what are lessor's duties or condition at time of transfer
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latent dangers until reasnnble lessor should have discovered condition, active concelament until lessee actually discovers danger, remains liable for danger outside premises and liable when leased for admission of public
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lessor responsible at all times for
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common areas, lease obligation to repair, lessor undertakes to repair
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gov remain liable for discretionary acts
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no
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govt standard for ministerial acts
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duty of RC
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police owes duty to individuals
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not unless they undertake a duty
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duty for economic loss
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no PI or PD loss then no duty
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3 exceptions to no duty for pure economic loss in negligence
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economic torts, negligent misrepresentation, negligent drafting of will
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exception to duty under N for wrongful conception amj, min and small min
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no recovery in MAJ, min can recover medical expenses for pain and suffering of birth and small exception expands to $ to raise child etc
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exception to duty under N for wrongful birth many courts and some courts
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many allow recovery for disabled child and some fpr special expenses offset by benefit of having child
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exception to duty under N for wrongful life many courts and some courts
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I shouldn't be here -courts deny recovery - a few courts allow special expenses after mage of majority
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recovery for NIED direct victim maj and min
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maj will allow recovery for physical manifestation and zone of danger - min must be foreseeable
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recovery for bystander NIEG maj and min - dillon v legg
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maj recovery if physical manifestation, zone of danger and close relationship to injured. minority located near scene, contemporaneous perception on injury causing event and close relationship
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negligent entrustment
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D entrusts car to hell on wheels driver creates direct liability
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alcohol to intoxicate person traditional and modern
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third party who serves is liable
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general rule for omission to act in negligence
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no duty
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4 exceptions to no duty to act creating affirmative duty
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D creates peril, undertake to act, induces reliance, special relationship
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special relationships that create duty to act under negligence for P
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parent/child, common carrier innkeeper, biz invitee,
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special relationships that create duty to control 3rd party
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dangerous propensity jailer, employee employer, parent child under ability to control need and oppty and notice of misconduct
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tarasoff
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duty - therapist learned of danger to identifiable person creates duty to warn
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vicarious liability for torts of children
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no
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general rule for standard of care
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reasonable care under totality of circumstances
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what are attributes of reasonable person under negligence standard of care
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reasonble under emergency unless D created emergency, physical limitations factored in, mental illness NOT FACTORED IN, special knowledge factored in, custom can be factored in persuasively but not conclusively
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three major exceptions for standard of care
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common carrier, child , statute ad professional
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child standard of care for N
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reasonable child of same age , experience, intelligence unless child engages in adult activity
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4 neg per se standards of care
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crim statute adopted, purpose of statute violation of statute = breach , licensing statutes
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3 requirements for neg per se statute
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P in class of persons protected, type of harm anticipated by statute and a measurable standard
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general rule for SOC for professionals
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minimum level of competency of typical member of profession in good standing
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general rule for SOC for expert testimony
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minimum level of competency
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Doctor standard of care traditional/ modern-min/maj
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adheres to local standards / modern minority National standards Majority same or similar communites
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doctor informed consent standard of care
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duty to disclose inherent risks, MAJ dr oriented typical level of compentency min. pt oriented reas disclosure of material risks, breach is failure to disclose, objective reas cause, and damages whe particular risk not informed about manifests
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negligence breach - 3 types
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violation of statute, reasonable person (learned hand totality of circumstances) , res ipsa locquitor
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4 excused violations of statute for breach
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incapacity, danger of violation, ignorant of facts that invoked statute, even with RC ould not have complied
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who has burden of proof for excused violations of statute for breach
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Defendant
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4 factors for learned hand reas person breach
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foresseable probability, foreseeable gravity, burden on D to alter conduct and utility of D's conduct unaltered
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elements of res ipsa locquitor
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ordinarily not occur w/o negligrnce, probably this D negligence - thing under D control, P did not contribute to event
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effect of res ipsa locquitor
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inference of negligence - jury decides
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describe fulcrum in Hand balancing
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Probability and gravity on one side balanced against burden and utility of P circumstances and conduct
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5 types of actual cause for negligence
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but for, substantil factor, special problems of legal malpractice toxic tort or loss of chance for survival, summers v tice and market share
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legal cause (proximate cause)
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look at time line for intervening forces between D's act and P ultimate injury - if none then direct cause
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when to use res ipsa in essay
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when you only have result
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can res ipsa be used for multiple Ds
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generally no except medical malpractice for medical team accountable to unconscious pt
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summers v tice
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2 hunters shot at prey summers lost eye but could not say whether bullet came from x or y - two Ds - shift burden of proof to D to show D did not fire the offending bullet
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actual cause - loss of chance of survival Maj/trad and min
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misdiagnosis - % chance of survival goes down - maj/trad no recovery but min recognizes loss and allows recovery
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do concurrent causes bring about joint TF
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if all are but for causes
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market share actual cause
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typical drug context - DES - each D responsible for their market share - all manufacturer liable to extent of % of MS
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substantial factor actual cause
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two or more TF where one alone would have caused injury but both caused injury - two convernging fires
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how to handle legal malpractice actual cause in essay
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must prove case within case because D must show they would have prevailed
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2 kinds of cause in proximate cause
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Direct (no intervening force) and indirect (intervening force)
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Indirect direct proximate cause how is result foreseeable
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Type of injury (foresight or hindsight )and extent of injury – thin skull
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Under direct cause type of injury Maj and min positions
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Wagon mound foresight and polemis hindsight
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Indirect proximate cause what 2 factors to determine foreseeable result
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Type and extent of injury
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What are 2 types of force when determining if intervening force cuts off D liability
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Independent force and dependent force
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3 examples of dependent intervening force and do they cut off D’s liability
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Rescuers, med malpractice and increased susceptibility – only cut off if abnormal
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Do criminal intervening forces cut off D liability? General rule and exception
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Generally yes but not if D initiated force such as left ladder at open window for burglar
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On essay which 2 systems of negligence should be written about
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Contributory and comparative
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What are 5 D defenses in negligence that stem from P conduct
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Contributory negligence, comparative, comparative fault, assumption of the risk, failure to mitigate
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Effect and methods to shift liability back to D in contributory negligence
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Effect is D is relieved of liability and shifting occurs through last clear chance and reckless D
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Effect of comparative negligence and variations
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Liability is apportioned under either pure where you just do the math and modified (Majority) recover where P is =< D
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Comparative fault jurisdiction
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Broadens comparative neg so that everything is apportioned even under strict liability and intentional tort
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3 types of assumption of risk
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Express or contractual, implied (subjective) confused under comparative neg
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Assumption of risk - effect
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Complete bar of liability
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Express assumption of risk
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P knows contest of K, is injury within scope of release, enforcement contrary to public policy
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Implied assumption of release
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P knew risk, appreciated magnitude and voluntarily assumed risk
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Inconsistent results between comparative neg and assumption of risk
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Apportionment versus complete bar
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Failure to mitigate damages – effect uner Majority
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Maj if not take steps reasonable person would then bar to liability for additional damages
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3 kinds of confusion in confusing in comparative neg and assumption of risk
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Apportionment versus complete bar, primary risk (inherent) (no duty-Firepersons) and secondary assumption of risk
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Contribution under negligence where multiple JTF common law and modern
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Common law direct apportionment – modern spread liability equitably based on responsibility
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Indemnity for negligence under CL and modern
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CL shifts entire loss but modern spreads liability based on equitable cross complaints etc in proportion to fault
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3 branches of strict liability
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animals, abnormally dangerous activities, strict products liability
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SL for trespass-owner liable?
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SL for all damage
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wild animal under SL
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private owners except zookeepers SL for the kinds of injuries that make that animal wild including fear - rattlesnake
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domestic animal - owner SL?
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if owners knows of animal's violent propensity then they are SL
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extent of consequences in SL versus negligence versus IT
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negligence = foreseeable
IT extended consequences SL actual damages |
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factors that are components of abnormally dangerous activities
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high risk of harm, person canot eliminate harm even with RC, inappropriate for are where conducted, not a common activities at that location, low utility for risk
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what is an intervening force in SL abnormally dangerous
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act of God - restatement holds owner strictly liable - majority in not foreseeable then owner not SL
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can assumption of risk give defense in SL - other defenses
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yes but no other defenses hold up
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comparative fault in SL - effect
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apportionment
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product liability - theories under which P may recover
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IT battery fraud, Strict P L, negligence, express warranty, implied warranty of merchantability, implied warranty of fitness for a specific purpose
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what is strongest theory under Products Liability
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SL - defective product is easier to show than breach with fewer defenses
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SPL who can you allege against
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the entire chain, vertical, horizontical
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what are the chains for SPL
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vertical from manufacturer to distr to retail, horizontal
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5 steps for SPL
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proper damage not pure econ loss, proper P and D, standard, causation, defenses
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SPL define
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commercial supplied places a product in stream of commerce in a defective condition unreasonably dangerous
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SPL proper damages
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not pure econ loss actual damages
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SPL proper parties
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P buyer, users, bystanders - D commercial supplier not occasional sellers, seller of used goods, seller of real prop except tract homes, services are not covered, not endorsers because they provide a service, except hybrids
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SPL proper D - hybrid service goods - who is liable
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Restaurant owners, level of expertise = lesser like hairdresser an be strictly liable but doctor likely not
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SPL standard
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defective product unreasonably dangerous - tends to be big issue
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3 defects to discuss on essay for SPL
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design , manufacturing, warning
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manufacturing flaw for SPL
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flaw in that particular discrete product
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design defect for SPL
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all products are the same some defect in design of that product - consumer expectation and danger utility test
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SPL consumer expectation test standard
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is product dangerous beyond expectations of ordinary consumer - strictly liable if so
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SPL dangerous utility test - risk/benefit test definition - majority or minority
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do risks outweigh benefits in fact - this test is MAJ where consumer expect is minority CA follows min
in fact what are the benefits or risks |
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SPL focus on product or conduct
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product
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5 factors used to do SPL risk/benefit analysis for essay
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common sense risks likelihood and severity of harm,
could risks be eliminated, not create new risks, retain benefit of product and not be priced out of market |
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SPL reasonable alternative for defective design
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did manufacturer have a reasonable alternative to avoid SPL in risk/benefit analysis
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exceptions to risk/benefit analysis- majority rule
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unavoidable dangerous products like polio vaccine - extremely high utility - majority includes all prescription drugs
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warning defect for SPL?
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manufacturer has duty to warn of foreseeable - knew of or should have known - significant risks at time of manufacture
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SPL market share?
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i multiple manufacturers then actual cause use market share but look for superseding intervening cause
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2 possibilities for warning defect in SPL
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no warning where required, inadequate warning - skull and xbones versus yucky face
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causation issues that always arise in warning defect in SPL
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actual casue - would user have heeded the warning, learned intermediary rule because warning was given to doc no warning needed to user
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defenses for SPL
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more limited than neg - unforeseeable misuse, assumption of risk know and uses anyway
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comparitive and contribtory defenses in SPL
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no
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negligence for damage from product distinguished from SPL
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breach instead of defect, each D has to be shown to have breached, foreseeable D palsgraf not everyone in SPL, includes any breaching D who is in chain sellers of used goods etc so broader, RC under circumstances not defect risk/benefit test, unreasonable failure to discover defect under - generally no duty to inspect every discrete product but under notice failure is unresaonble - defenses includes SPL defense and conrib compar negligence
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breach of express warranty
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affirmation of fact about goods part of basis of bargain that turns out to be not true then D liable - contract doctrine import
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5 steps for breach of express warranty
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peronsla injury and pure econ loss, proper P in clas who relies and D any person who makes representation include private sellers, standard set by affirmation, cause same as SPL, some contract defenses included such as notice to seller - disclaimer no defense
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implied warranty of merchantibiliy
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pure eco loss and actual damages, proper P purchasers but privity varying by jurisdiction, D sellers merchants, standard set by warranty
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implied warranty of fitness for a particualr purpose
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look at facts - what ever seller said they are liable for, defenses include SPL and notice timely defect to seller under contract law - watch for conspicuous language like as -is
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Overall Tort approach
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Injuries, actual cause- widening narrowing, SIN, SINR, legal cause, damages, defenses
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approach to defamation - 3 steps
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common law elements, fault as to truth (Con law requirement), common law defenses /privileges
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defamations common law elements
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false (burden of proof), defamatory, statement of fact not opinion, attaches to P, published to 3rd party, cause - foreseeable damages - intervening force or republication, damages
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what other torts should be considered with defamation
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invasion of privacy/false light, NIED
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how does defamation attach to plaintiff - 2 avenues
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members of a group or through extrinsic facts such as colloquiam/ innuendo or inducement
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two kinds of damages in defamation
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proof of pecuniary loss or presumed damages
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what are presumed damages in defamation
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slander per se or libel
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slander per se
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business/profession, serious crime, loathsome disease, unchastity
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libel
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written slander - permanence and widespread
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2 kinds of CL privileges in defamation
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absolute or qualified
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does defamation die when P dies
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Yes
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absolute privileges under defamation - as opposed to qualified
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judicial, legislative, executive, between spouses
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qualified privileges under defamation - as opposed to absolute
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fair and accurate reporting, own interest, 3rd p's interest, common/public interest
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CL defamation defenses
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truth, consent
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2 kinds of public figures in defamation
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pervasive fame, limited purpose who is private figure for other issues
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public figure P v. any D requires what kind of intent and what result
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NYT malice - presumed damages possible punitives
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P have to prove actual out of loss for simple slander
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yes
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when, in defamation, does P have to prove actual loss
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simple slander
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constitutional requirement - fault as to truth ?
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indv reputation fulcrum free speech - NYT malice knows falsity or reckless disregard for truth or serious doubts re truth
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Modern D have to prove falsity for defamation
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Yes
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fault requirement for private P v any D - public concern
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for negligence actual damages but under NYT malice damages presumed
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fault requirement for private P v private D - private concern
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negligence presumed damages, Common Law Strict liability
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fault requirement for private P v any D - public concern
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for negligence actual damages but under NYT malice damages presumed
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fault requirement for private P v private D - private concern
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negligence presumed damages, Common Law Strict liability
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invasion of privacy - false light
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publication, false info, highly offensive to reasonable person, fault
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invasion of privacy - public disclosure of private facts
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publication, private facts, not newsworthy
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invasion of privacy - intrusion
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injection into sphere reas person would consider private
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invasion of privacy - commercial apporpriation
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unauthorized use of P for commercial purposes
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7 economic torts - P only loss might be pure economic
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injurious falsehood, intentional misrepresentation, negligent misrepresentation, intentional interference with contract,inten interference with prospective bus advantage, malicious prosecution, abuse of process
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abuse of process
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any intentional misuse of process, for a purpose other than that for which it intended, harm
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malicious prosecution
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crim/civ proceedings against P by D, for improper purpose, w/o probable cause, proceedings terminate on merits for P, harm
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defense for malicious prosecution
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D shows by POE that P in fact did commit crime
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intentional interference with prospective business advantage
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D know of prospective advantage, acts solely to interfere, using improper means
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intentional interference with contract
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D's knowledge of existing K including at-will and uneforceables, act to induce breach, actual breach with financial losses
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two types of privileges against intentional interference with K
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justifiable methods, justifiable purpose
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justifiable methods privileges against intentional interference with K
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protect interest of other, public purpose,existing financial needs
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ustifiable purpose privileges against intentional interference with K
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threats of violence, fraud, defamation, bribery
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negligent misrepresentation - minority
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false statement of past/present fact, by D in business of supplying info, negligence, justifiable reliance by P, damage- econ loss
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who are foreseeable P in negligent misrepresentation
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one to whom misrep is made specific id third-parties
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injurious falsehood
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false statement, known false, published, intent to cause others not to do business, causes specific pecuniary losses
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CL privilege to injurious falsehood
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interest - own/ 3rd p/ common/ public, lose by excess publicity/ knowingly false or reckless disregard/ desire to injure
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intentional misrepresentation
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false statement of material fact,intent to induce reliance, scienter, justifiable reliance by P, causes damages
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intentional misrepresentation - types of false statements
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affirmative misrep, active concealment, nondisclosure
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intentional interference with contract
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D's knowledge of existing K including at-will and uneforceables, act to induce breach, actual breach with financial losses
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two types of privileges against intentional interference with K
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justifiable methods, justifiable purpose
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justifiable methods privileges against intentional interference with K
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protect interest of other, public purpose,existing financial needs
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justifiable purpose privileges against intentional interference with K
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threats of violence, fraud, defamation, bribery
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negligent misrepresentation - minority
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false statement of past/present fact, by D in business of supplying info, negligence, justifiable reliance by P, damage- econ loss
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intentional misrepresentation - maj min active concealment
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min - as is disclaimer no tort but maj active concealment satisfies false statement requirement
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intentional misrepresentation - non-disclosure general rule and exceptions
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no duty unless fuduciary, misleading , subsequent discover must go back and inform, discover reliance must set record straight
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intentional misrepresentation - 2 ways to induce reliance
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reasonably foreseeable, promise to perform in future
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intentional misrepresentation - what kinds of statements can be relied on
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facts,but not opinion unless expert, fiduciary, or hidden interest
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intentional misrepresentation - damages - maj and min
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maj benefit of bargain - min out of pocket loss
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Nuisance - what else to consider
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physical invasion of trespass to land
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nuisance two types and general definition
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public, private - substantial and unreasonable interference with enjoyment of land
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public nuisance fault
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substantial and unreasonable interference with enjoyment of land, fault = SIN
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public nuisance full definition
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substantial and unreasonable interference with enjoyment of land, fault = SIN, community at large, standing is public official or private person with injury different in kind from public, remedy is injunction by balancing hardships
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public nuisance remedy
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injunction through balancing hardships
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private nuisance - how to arrive at substantial and unreasonable interference
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weigh and balance - value of D's undertaking, D's alternatives, nature of locality, extent of P's injury, who was there first
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private nuisance - standing
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possessory interest in the land -not an employer/employee or guest
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private nuisance - remedies 2
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damages or continuing nuisance permanent damages, defacto injunction, injunction where damages inadequate
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kinds of tort remedies
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nominal, compensatory - foreseeable certain and unavoidable, punitive
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tort punitives requirements
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punish or deter so consider wealth, due process limit as to compensatories, conduct required fraud, oppression malice at least reckless
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tort restitution 2 types
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legal and equitable
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tort injunction requirements
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proof of underlying tort, inadequate legal remedy, feasibility, balancing, right in property, defenses
pat is finding bar review delightful |
pat is finding bar review delightful
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compensatory damages personal injury
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general=pain suffering and emotional distress special=must be proven
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compensatory damages real property 3 types
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destroyed improvements, damages or taking
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compensatory damages real property when destroyed
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decrease in value or cost of repair
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compensatory damages personal property 3 types
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destroyed FMV, damaged, taking
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compensatory damages real property when damaged
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decrease in value or cost of repair - how bad is D conduct = may pay more for bad conduct
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compensatories real property taking - trespass to land
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without ouster nominal but with ouster rental value or benefit to D including an offset for benefit D conferred on P
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compensatories personal property - destroyed
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FMV + loss of use
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compensatories personal property - damaged
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decrease in value or cost of repair
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compensatories personal property - taking
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not returned = FMV when taken or returned loss of use or rental value
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tort restitution general rule and two types
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use when D unjustly enriched through disgorge D of benefits conferred by P
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tort restitution legal for RP and PP
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ejectment return RP (trespass) or replevin return PP (conversion)
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tort restitution equitable - constructive trust
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use when prop increases i value and allows tracing
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tort restitution equitable 3 types
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constructive trust, equitable lien or commingling
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tort restitution equitable - equitable lien
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use when prop decreases in value P secured creditor given priority in Bankruptcy
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tort restitution equitable commingling traditional and modern rule
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trad - no recovery
modern may recover up to loss |
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6 steps in tort injunction
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proof of underlying tort, inadequate legal remedy, feasibility, balancing hardships, right in property, defenses
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tort injunction why inadequate remedy
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damages speculative, multiplicity of suits, harm to RP, irreparable harm
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tort injunction feasibility
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supervision problems either prohibitory or mandatory or jurisdictional problems
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tort injunction balancing hardships
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totality of circumstances factors are who best able to absorb loss, activity most important to community, greatest investment, ability to minimize damages
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tort injunction defenses
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laches - compare SOL or unclean hands
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damages by underlying tort - assault, battery, false Imp, iied nied
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nominal, compensatory, punitive ok if acts with malice
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damages by underlying tort - trespass to RP w ouster
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rental value or benefit to D - mense damages
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damages by underlying tort - nuisance for public and prvate
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pub ok if special type injury -private permanent nuisance Dim in value
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damages by underlying tort - trespass to chattels
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dim in value or repair depends on extent of damages
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damages by underlying tort -
conversion |
FMV
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damages by underlying tort - trespass to RP w severance
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dim in value or cost to repair
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damages by underlying tort - trespass to RP w injury
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dim in value or cost to repair
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damages by underlying tort -
negligence |
no punitives but all proximately caused losses, no pure eco loss, no mental distress alone
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damages by underlying tort -
SL |
no punitives but all proximately caused losses, no pure eco loss, limited to damages flowing from dangerous propensity
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damages by underlying tort -
SPL |
depends on theory
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damages by underlying tort -
defamation |
damages to rep for libel for slander per se,, Gertz actual damages, special pecuniary losses always recoverable, maybe punitive
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damages by underlying tort -
privacy by type |
publicity = distress plus special, intrusion =distress plus special, false light = distress plus special, commercial appropriation = benefit to D
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damages by underlying tort -
fraud majority and minority |
maj benefit of bargain, min out of pocket
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damages by underlying tort -
interference w W/K majority and minority |
majority = tort measure and minority = K measure
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damages by underlying tort - prospective advantage
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speculative
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3 kinds of breach in negligence
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unexcused violation of statute, reasonable person, res ipsa loquitor
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res ipsa loquitor 3 requirements
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probably negligence, probably D, and P did not contribute
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negligence causation 2 types and their examples
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actual = but for, substantial factor, summers v. tice, market share
legal = direct -> foreseeable result -> extent, type= polemis hindsight or wagon mound foresight, indirect = foreseeable result extent& type looking for effect of intervening force dependent normal and independent unforeseeable? |
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