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101 Cards in this Set
- Front
- Back
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Torts at First Glance
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- What causes of action exist, and are the elements met?
**Intentional torts, negligence, strict liability, products liabiltiy, defamation, misc. torts** -What defenses apply? -Do any general considerations exist? |
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Intentional Torts & Defenses
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Assault, Battery, Conversion, Unlawful Imprisonment, Trespass to Land, Trespass to Chattels, Intentional Infliction of Emotional Distress.
Defenses: Consent, Defense of Others, Defense of Self, Defense of Property, Prevention of Crime, Necessity and Arrest. |
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Battery
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Intentional Harmful or offensive touching of another.
Elements: -Affirmative Act: Voluntary, absence of mistake, coercion, duress or accident. -With intent to touch another: D must actually intend to make contact or act in a manner substantially certain to cause the touching. -Resulting in actual harmful or offensive touching of P: Touching must be harmful or offensive to the REASONABLE person (Ex: eggshell skull theory) and there must be actual contact with P or something closely connected to P. |
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Assault:
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An intentional act which causes apprehension of harmful or offensive touching.
ELEMENTS: -Affirmative Act: Voluntary, absence of mistake, coercion, duress or accident. -With intent to place P in apprehension -D must actually intend to cause P's apprehension, or intend to touch P. -Of an immediate -Harmful or offensive touching. Reasonable apprehension acn be caused by D's apparent ability to commit battery. |
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False Imprisonment
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An act/omission which confines P to a particular area
With intent to confine him, resulting in false imprisonment. Actual confinement of P (P could not escape by reasonable means) Either awareness of confinement or actual harm. |
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Intentional Infliction of Emotional Distress
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An extreme and outrageous act (D's conduct must have been extrreme--beyond all notions of common decency) with intent to (purposeful or knowing) cause severe emotional distress or recklessness with regard to such injuries--no transferred intent.
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Trespass to Land
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An affirmative, intentional act by D who either enters the land or causes an instrumentality to enter which invades P's possessory interest (actual injury not required) in land.
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Trespass to Chattels
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Affirmative, intentional act whcih interferes with P's possessory interest in movable personal property resulting in injury. Measure of damages: depends on the nature of the trespass--may include value of lost chattel, actual injury to chattel and loss of P's use of chattel.
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Conversion
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Act or omission with the intent to exert control over a chattel which in fact belongs to P, resulting in substantial injury to the chattel. Measure of damages--full and fair value of property
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Defenses to Intentional Torts
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Consent, defense of others, defense of property, self-defense, necessity, arrest
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Consent:
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Actual consent (what did P say)
Apparent consent (what did P do?) Implied consent: Does the law imply consent? Informed Consent (what was P told?) Did D exceed the scope of P's consent? Does P have the capacity to consent? Did P consent to criminal act? (*Tort, please!) Was consent vitiated by fraud or duress (was P pressured or lied to? |
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Defense of Others
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Majority: D stands in the shoes of the protected person. Was protected party entitled to use force?
Minority: Proptects actor's reasonable mistake; What amount of force did D beleive was reasonable. |
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Defense of Property
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D is privileged to defend land or chattels from non-deadly force if:
-Intrusion by other party was not privileged (trespassory) -Actor reasonably believes force necessary to prevent intrusion -Demand made that intruder stop, unless futile to do so. -Force used is proportionate--will not cause serious harm if defending mere property. Deadly mechanical devices are privileged only where D is entitled to use such force in person. Non-deadly mechanical devises are privileged only if they are plainly visible or a warning is posted. |
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Recapture of Property
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D is privileged to use reasonable, non-deadly force IF
-D is entitled to IMMEDIATE possession -Demand for return was made and ignored, or demand was futile. -D in hot pursuit of tortfeasor -Recapture from dispossessor OR from third party having knowledge. |
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Shopkeeper's Privilege
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-Reasonable grounds for suspicion
-Detention only for a reasonable period -Only reasonable, non-deadly force used. -Detention itself must be reasonable. |
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Privilege to Reclaim Property on Another's Land
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-Demand for permission to enter made, unless futile OR emergency situation exists.
-Entry made in a reasonable time and manner Under this privilege, act of G-d or Third party does not excuse liability for tort. |
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Privilege to Reclaim Land
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Self-Help not privileged since other alternatives are available (e.g. quiet title, ouster,etc.)
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Self-Defense
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-D must reasonably believe she's in danger from P;
-The force used appears reasonably necessary to prevent harm (OBJECTIVE TEST) -No deadly force is allowed unless there is danger of death or great bodily injury -MAJORITY: No duty to retreat, even though escape is available, although the modern trend is to impose a duty to retreat before resorting to deadly force unless the actor is in her own home. (not so in AZ) -Not a defense for the original aggressor unless he clearly and completely withdraws. |
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Necessity
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-Public Purpose: No liability if D acts to avoid public disaster
-Private Purpose: D is liable for actual damages -Abate Nuisance: If D owns land affected by actual nuisance, and has made immediate demand nuisance be abated and reasonable force used. **These privileges supersede the right of a landowner to protect land. |
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Arrest
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D may use reasonable, non-deadly force to effectuate a lawful misdemeanor arrest, and may use deadly force to make a serious felony arrest if the suspect poses a serious threat of harm to the person making the arrest.
1) WITH WARRANT: If the warrant is fair and properly executed; 2) WITHOUT WARRANT: -Felonies: Officer can arrest is probable cause exists / private citizen can arrest if felony has been committed and private person has reasonable belief that person arrested committed the felony. -Misdemeanors: If crime involved a breach of the peace AND was committed in arrestor's presence |
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Negligence
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Careless conduct by D against P. "Breach of the duty of due care, which is the actual and proximate cause of P's injuries. "
ISSUE 1: Prima Facie case Duty? What is the standard of care? Did the defendant breach the duty of care? Causation? Damages? Defenses to negligence? Issue 2: Applicable Defenses to Negligence -Contributory negligence -Comparative negligence -Assumption of the risk |
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Duty
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Cardozo (MAJORITY):
Duty of care owed only to foreseeble P or person in zone of danger. Andrews (MINORITY): Duty of care owed to all members of society. |
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Negligence: Any Special Duty Issue?
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-Duty to control 3rd persons
-Duty of owner of land -Duty of lessee/vendee -Duty of auto driver. -Duty to Aid Others -Prenatal Injuries -Negligent Emotional Distress |
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Negligence: Duty to Control Third Persons
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RULE: Where D who has actual ability and authority to control third persons, a duty is owed if:
-D holds public premises open to the public -D is liable as a parent for negligently failing to control their child. |
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Negligence: Duty: Owner of Land
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D's duty depends on the character of land and the nature of the P's presence on the land.
1) Where P outside D's land, no duty of care where injuries are caused by natural conditions (ex. treelimbs) -If artificial condition abuts D's land, D has a duty to inspect and maintain in a safe condition. -If D knows or should know of P's presence on the land, then duty to warn against artificial conditions or dangerous activities on the land. If P is gratuitous licensee (someone who comes on D's land for his own purposes with D's consent--e.g. to swim in D's pond, to hike, or to visit D socially) then D has a duty to warn of obvious dangers. If P is an invitee (business visitor) D has a duty to warn regarding obvious dangers and a duty to inspect. If public servants come on D's land during regular business hours, they are INVITEES. **Many courts reject common law rules and apply reasonable person standard** |
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Negligence: Attractive Nuisance Doctrine
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D is liable under the attractive nuisance doctrine if D knows/should know that:
-Children will trespass -Condition is dangerous to children -Children would not realize risk -Danger to children outweighs D's burden of eliminating danger. |
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Negligence: Duty to Lessee/Vendee
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Where P is outside land, D's duty is limited to conditions involving unreasonable risk of harm until transferee has chance to discover / fix condition.
No duty after transfer of possession unless otherwise agreed, but must warn of unreasonable, obvious dangers. MAJ: D owes no duty to third-persons coming on land with vendee's consent. MIN: Duty the same as that owed to vendee/lessee. |
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Duty of Auto Driver
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D (driver) owes duty to P (passenger) IF:
-P paid, as invitee. -If no $ paid, then passenger is a guest, and D must warn of non-obvious defects in car and drive carefully. -Guest statutes under modern law impose liability of driver to guest only where neligence is wanton or gross. |
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Duty to Aid Others
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-Innkeeper's duty to gues
-Common Carrier to customer -Jailer to prisoner in peril -Where D CAUSED P's injuries or peril -One who undertakes to aid another must then exercise due care. |
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Prenatal Injuries
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MAJ: Duty of care towards viable fetus.
MIN: Extends to non-viable fetus; courts are split over whether a wrongful death action exists if the fetus is stillborn. |
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Neligent Emotional Distress:
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Duty of care not to subject others to emotional distress which coudl foreseeably cause them physical injury through physical impact or threat of physical impact. No duty is owed toward third-person's distress resulting from fear for another's safety, unless:
-Third party is in the zone of danger -Third party is a close relative of the injured person -D had knowledge of 3rd party's presence and relationship to injured party. |
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What is the Standard of Care
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Duty to act as a REASONABLE PERSON would have acted in the same or similar circumstances.
EX: Those with special knowledge/disability: e.g. professionals, children, handicapped held to a like-person standard. -Custom does not establish standard of care, but may be evidence of negligence. Apply standard of care set forth in civil statute, but if cirminal, only if: -Statute defines required conduct; -Legislature intended to protect class from harm, and P is a member of this class. |
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Did D Breach the Standard of Care?
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D breaches the standard of care by engaging in conduct that exposes others to unreasonable risk of harm.
Violation of statute: MAJ: Unexcused violation establishes conclusive presumption of negligence (negligence per se) MIN: Violation raises rebuttable presumption of negligence. In determining whether D's conduct is unreasonable, balance risk to P against utility of D's conduct. |
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Doctrine of Res Ipsa Loquitur
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"The Thing Speaks for Itself."
Elements: 1) Type of accident does not occur unless someone was negligent 2) D has exclusive control over instrumentality 3) P NOT contributorily negligent. Effect: MAJ: RIL creates an INFERENCE of negligence. MIN: RIL creates a rebuttable presumption of negligence. |
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Causation: Whose Fault?
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To be liable, D must be both:
-Cause-in-fact -Proximate cause |
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Cause in Fact (Actual Cause)
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Was D's conduct a cause of P's injury?
TEST: But-for: "But for D's act, P would not have been injured." D is the actual cause. Substantial Factor: If either one of two acts could have caused the injury, it is sufficient if D's act was a substantial factor. Alternative Cause Approach: Where 2 or more persons have been negligent but it's unclear who caused the injury, P must prove that harm was caused by one of them. Burden then shifts to D to prove that it was not HIS conduct that was the cause. |
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Proximate Cause:
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Was D's conduct the legal cause of P's injuries?
-Determine if the case involves: -Direct cause or indirect cause, then apply appropriate test: --If there are no intervening causes that occurred between the D's act and P's injury, then D's act is a direct cause of P's injuries. --If there are other intervening causes occurring after D's act, D's act is said to be an INDIRECT cause of P's injuries. |
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Direct Cause
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Polemis Rule: Is D always liable?
Wagon Mound: D is liable for REASONABLY FORESEEABLE cause consequences. Restatement Rule: D is liable unless it is highly extraordinary that D's act caused P's injury. Exception: Eggshell Skull Rule: You take your plaintiff as you find her. |
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Indirect Cause
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Dependent cause: D liable if the harm was foreseeable.
Independent cause: D not liable if unforeseeable. If a reasonable person would not foresee, but an intervening cause creates a foreseeable result, D is liable unless unforeseeable intervening act involves criminal act, reckless third party takes control of situation, or lapse of time after D's conduct. |
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Damages:
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Actual Damages: Medical expenses, lost wages, pain and suffering.
Future Damages: Future medical bills, lost earnings, future pain and suffering. Non-Recoverable: Atty's fees, punitive damages, pre-judgment interest **Caveat: D must mitigate damages and no attorney's fees are recoverable. |
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Defenses to Negligence
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Contributory negligence
Comparative negligence Assumption of the Risk |
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Contributory Negligence
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If P caused injury and was negligent herself, recovery is barred. However, to avoid harsh results, the following doctrines are applied:
-Last Clear Chance doctrine: Allows P to recover if D could have avoided accident but didn't. -Comparative Negligence |
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Comparative Negligence
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-Pure: P can always recover, even if D is 1% at fault.
-50%: P loses if her fault is equal to that of D. -50% or less: P loses if her negligence is anything greater than 50%. |
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Assumption of the Risk
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P either expressly or impliedly consented to take on the risk that she might be harmed. Recovery is barred if
P recognized and understood the danger (knowing and intelligent) P voluntarily chose to encounter the risk. |
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Strict Liabilty
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Inherently dangerous conduct by D's.
"Liability imposed for a breach of an absolute duty to make safe that which is the actual and proximate cause of P's injuries." |
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Animals
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Domestic animals: D is liable only if she knew of the animal's propensity for dangerousness.
Wild animals: D is strictly liable for harm. ("wild" vs. "domestic" is decided based on species) Trespassers are not protected in the absence of a landowner's negligence unless the injury is inflicted by a vicious animal. |
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Abnormally Dangerous Activities
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One who maintains an abnormally dangerous condition or engages in a dangerous activity is strictly liable for harm. What is "abnormally dangerous" will vary with location and land usage.
CONSIDER: Value of activity to community, location of activity, risk cannot be eliminated by due care, activity is not a matter of common usage, probability of serious harm to others. Causation: Maj: rules the same as negligence. Min: Not even an act of G-d will excuse liability. |
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Defenses to Strict Liability
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Assumption of the risk is a defense, but contributory negligence is not, unless P knew of the danger and negligently caused miscarrying activity. Some states apply comparative negligence.
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Products LIability
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Theories of Products Liability:
-Misrepresentation -Breach of Express Warranty -Strict Products Liability -Implied Warranty -Negligence. |
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Misrepresentation Under Restatement 402:
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1) Misrepresentation of a material fact.
2) P must rely on misrepresentation in using product. 3) Representation must be made by D or fairly chargeable to him. 4) Must be intended or expected to reach a class of which P is a member. 5) D must be a commercial supplier of chattels Defenses: Contributory negligence is not a defense, but assumption of the risk and misuse of product are. |
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Breach of Express Warranty under UCC 2-313
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Same as the tort of misrepresentation except ANY seller is laible, but:
-P a co-habitant or guest can recover for personal injuries. -Extends to anyone who could be expected to be personally injured by goods. -Property damage recoverable. -Entity can sue Defenses: Same defenses as the tort of misrepresentation, but add failure to give notice of breach and inadequate warning. |
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Strict Products Liability
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Restatement 402A:
1) D caused the product to be placed in the market 2) At the time the product left D's control, it contained an unreasonably dangerous defect. 3) P was hurt while using the product in its intended and foreseeable manner. 4) D is engaged in the business of selling/supplying product. |
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Feasible Alternative Test
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Weigh and Balance:
1. Danger imposed 2. Obviousness of danger 3. Cost of improved design/practicality 4. Benefit of product 5. Alternative design. 6. Technology DEFENSES: Contributory negligence not a defense, but assumption of risk, misuse of product, and not following the damned directions are! |
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State-of-The-Art Defense
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1) did a safer mechanism exist?
2) Why didn't D use it? 3) Did others use it? 4) Would use of it at that time adversely affect benefit of product? 5) Feasiblity, scientific knowledge, and practicality |
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Breach of Implied Warranties
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Warranty of Merchantability: Guarantees that goods are fit for the ordinary purposes that goods are used for where D is a merchant of such goods.
Warranty of Fitness for a particular purposes arises if seller recommends a particular product after told by buyer of particular needs regardless of whether D is merchant. Defenses: Assumption of the risk, misuses of product, failure to follow directions, failure to complain to seller within a reasonable time. |
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Negligence: Products Liability
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Same analysis as negligence, but:
1) Duty: Commercial sellers owe a duty of care to any foreseeable P regardless of privity. 2) Standard of Care: manufacturer must use reasonable care in designing and assembling a safe product, and must provide necessary warnings: wholesalers have no duty to inspect, but retailer must if they know product is defective. |
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Defamation:
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Publication to 3rd person by D defaming P, capable of being understood by 3rd persons in a defamatory manner, causing damage to P's reputation.
Prima Facie Case: -Was the material defamatory? -Did D publish the material intentionally or negligently to a third person? -Was the defamatory matter subjectively understood by at least one third person to be of and concerning P, or an exclusive group that P is a part of? Causation? Did P suffer damage? |
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Was the matter defamatory?
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Traditional Test: Exposes P to public hatred, contempt or ridicule.
Restatement 2nd: Adversely affects P's reputation. If not defamatory on its face, then P must explain why. |
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Did D publish the defamatory material intentionally or negligently to a 3rd person?
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The defamatory matter must e communicated in some fashion to at least one person other than P.
Uniform Single Publication Rule: Single edition of book, magazine or newspaper is one publication. |
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Was the defamatory matter subjectively understood by at least one party to be of and concerning P or an exclusive group which P is a part of?
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The defamatory matter must be subjectively understood by at least one person to be of and concerning P. Third party does not have to believe the defamatory matter, but must understand that it applies to P.
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Did P suffer damage?
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If defamation is slander (oral) then special pecuniary damages are required unless the statement qualifies as a slander per se. If the defamation is liable or written, then general damages are presumed.
Statements qualifiying as slander per se are those which: Affect P's business (also known as trade libel) Constitute a serious criminal offense Accuse P of having a loathesome communicable disease, or; Accuse P of being unchaste Law is unclear if unscripted defamatory statements made on radio or television are libel or slander. Note that if the defamatory remarks are scripted, libel's writing requirement is met. |
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Absolute Defenses to Defamation
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Truth: Must be substantially true
Judicial Proceeding: (must be related)/ Legislative proceeding (absolutely privileged)/Made to official (must be related to duty of official) Between husband and wife. Made during political broadcast Consent? |
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Qualified Defenses to Defamation
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1) 1st Am. privilege: For public figure (famous person or voluntary publicity seeker) P must prove constitutional malice (knowledge of falsity or reckless disregard) against media or non-media. Against private person, P must prove negligence and actual damages.
Opinion: Protection of private interest: If reasonable belief that important interest threatened, relevant to protected interest, person hearing statement can protect interest, relationship between D and person published to. Public Interest: Where statement made to protect legitimate public interest Published as a report of public proceeding: |
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Miscellaneous Torts
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=Invasion of privacy
=Nuisance =Harm to P's business relations =Misrepresentation =Malicious prosecution, Wrongful civil proceedings |
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Intrusion of Privacy: 4 Torts
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-Intrusion--highly offensive/outrageous intrusion relating to private facts.
-Public disclosure of offensive private facts -Placing P in false light in the public eye -Apprpriation of P's name or likeness. Defenses: consent, or newsworthiness, but not truth, inadvertence, good faith or lack of malice, First Amendment (only in false light or disclosure) |
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Nuisance:
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Public: Substantial and unreasonable interference with public interest in use of land that offends public's sense of value.
Private: Substantial and unreasonable interference with individual's use of land. Test: Weigh & balance utility of conduct with harm to P. |
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Harm to Business Relations: 3 Torts
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1) Injurious Falsehood, including disparagement: Publication of false assertion of fact injuring P's economic interest with improper intent that is the cause of special damages.
-Interference with K: Act by D with knowledge of K for purpose of interfering with the K right of P. -Interference with Economic Advantage: Same as 2 without K requirement. |
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Misrepresentation
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Two Types:
Intentional and Negligent Both involve misrepresentation of a past or present material fact (made intentionally or negligently) and D intends that P will rely on statement, P justifiably relied on the statement and was damaged by such reliance. Note: Intentional misrepresentation requires scienter--actual intent--while negligent misrepresentation requires a misrepresentation in a business or professional capacity |
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Malicious Prosecution /Wrongful Civil Proceedings
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Initiation of criminal / civil proceedings without probable cause with malicious intent which terminated in favor of D resulting in actual damages.
Abuse of Process: D's misuse of legal process for ulterior motive causing actual injury. |
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General Considerations
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Vicarious Liability
Immunity Recovery for Injury to Another Multiple Defendant Problems Statute of Limitations |
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Vicarious Liability
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1) Parent-Child: Where parent entrusts child with dangerous instrumentality, child acting for parent, parent knows and approves of wrongdoing or fails to exercise reasonable control
2) Ownership of vehicle: Liable if negligent entrustment to another, if car used in family affair, or if owner consent statute applies. 3) Respondeat Superior: Employer liable for all torts of employee within scope of employment. 4) Joint Enterprise: Those who act in concert are liable if committed within scope of enterprise. 5) Dram Shop Acts: Alcohol seller liable for drunk who injures another. |
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Immunity
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1) Charitable Immunity: Abolished in most jurisdictions
2) Governmental Immunity: Liable for ministerial functions 3) Interfamilial Immunity: Majority permits recovery for inter spousal and parent-child torts, but minority j's and common law contra. |
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Recovery for Injury of Another
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1) Spouse can recover for loss of services, loss of consortium; injuries to family members
2) While common law actions did not survive death except where personal property was concerned, statutes allow survival of tort actions after death of injured party. 3) Wrongful death: Not permissible at CL, but allowed under statute 4) Wrongful Life: No cause of action 5) Wrongful Birth: Cause of action allowed. |
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Multiple Defendant Problems
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Joint Liability: Each D liable for entire judgment when logical division of damages impossible; some states hold that liability is proportionate to D's fault where D is judgted to be less at fault than P or where non-economic damages are at issue.
Several Liability: Individual liability allowed when there's a logical basis for dividing damages among D's. Satisfaction: Full acceptance by P of compensation. Release: P surrenders claim against party Indemnification: D who pays claim may recover from another. |
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Statute of Limitations
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Runs from time of injury, not time of D's tortuous act, or omission.
Medical Malpractice: runs from the time of discovery. Modern trend: in all cases, SOL begins to run from time of discovery |
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Torts Remedies: The Big Picture
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1) Damages
2) Restitution 3) Injunction 4) Defenses |
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Damages:
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Compensatory damages
Punitive Damages Nominal Damages Limitations on Damages |
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Compensatory Damages
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Award of $ to compensate P for loss or injury in the past.
General Damages: Compensate foreseeable losses (e.g. pain and suffering) Special Damages: Compensate losses not necessarily foreseeable (e.g. wage losses) and must be specially pleaded |
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Punitive Damages
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Award to punish D's willful, wanton or malicious conduct. Generally limited to intentional torts, although recoverable in cases of reckless misconduct.
--There must be a reasonable relationship between punative and compensatory damages |
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Nominal Damages
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Recoverable where no injury was sustained, but D at fault.
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Limitation on Damages
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Foreseeable: was the damage / injury foreseeable at the time the duty was breached? (proximate cause)
Unavoidable: No recovery for losses whcih reasonably could have been avoided or mitigated by P. Causal: Damages must be caused by D's breach (but-for cause) Certain: Damages cannot be speculative; must be proven with reasonable certainty (sufficient to satisfy a reasonable person) |
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Restitution
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Replevin
Ejection Quasi-K Constructive Trust Equitable Lien |
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Replevin (restitution)
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Legal remedy which allows P to recover possession of specific personal property wrongfully taken.
Measure: recovery of possession of chattel or its value at time of trial plus damages for loss of use. |
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Ejection
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Legal remedy to restore possession of real property from which P was wrongfully ousted.
Measure: Ejectment of wrongful possessor + mesne damages (rental value during that period) |
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Quasi K
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P can waive the tort and sue in assumpsit for the reasonble value of a benefit unjustly retained by D.
Measure: Value of the unjust benefit to D. |
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Constructive Trust
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Equitable recovery wherein equity creates a trust to compel D to reconvey title to property unjustly retained must show:
-That D acquired title to specific property or traceable property -D's retention of the property would result in unjust enrichment. -No adequate remedy at law (some courts) -Equitable defenses apply |
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Equitable Lien
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Equitable remedy which permits a lien on D's property to secure payment of a debt owed to P.
Must show: 1) That his property can be traced to D's property 2) D's retention of property results in unjust enrichment; 3) P has no adequate remedy at law (some courts) 4) Equitable defenses may apply. |
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Injunction
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Inadequate remedy at law?
Property right? Feasibility Problems? Balancing Hardships? Defenses? |
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Inadequate Remedy at Law
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Historically, equity would not act unless the remedy at law was inadequate. Once that meant that there was no remedy at law, but today all tha tis required is that the legal remedy not be as good as the equitable remedy.
LOOK TO: -Threat of multiplicity of suits -Damages that are too speculative or small -Will suffer irreparable injury (e.g. injury to land)( |
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Property Right:
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Is a property right being infringed? (Liberally construed)
Is a constitutional or fundamental right being infringed upon? |
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Feasibility Problems
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Court must have PJ over the parties. Traditionally equity would not act outside its jurisdiction.
Problems in supervision of performance? Is negative or mandatory injunction appropriate? |
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Balancing Hardships
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Never apprpriate where D's conduct is WILLFUL. Where D is "innocent" weigh/balance creatively adn tailor if possible.
Where encroachment and nuisance at issue, and D's conduct innocent, always balance, but weigh in favor of P. |
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Equitable Defenses
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Laches
Unclean Hands Freedom of Speech Freedom of Association Injunction sought against criminal act Injunction sought against prosecution of crime. |
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Laches:Equitable Defenses
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Equity aids the vigilant.
An unreasonable delay in initiating equitable claim which results in prejudice to D. P must knowingly sit on her rights and D must detrimentally change his position |
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Unclean Hands:Equitable Defenses
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He who seeks equity must do equity:
P's unclean conduct must be related to the subject matter of the suit, and D must be injured by P's unclean hands. |
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Freedom of Speech:Equitable Defenses
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"Equity will not enjoin Speech."
Policy reasons include: -Departs from the constitutional right to a jury trial (it takes the case from the jury) May constitute a prior restraint Strong policy favoring free-speech. EXCEPTIONS: Where NATIONAL SECURITY is at stake; Trade / Libel cases: Historically, equity has enjoined trade libel (speech that goes to product/business disparagement) although recent SCOTUS cases cast doubt on the continued validity of this exception, since commercial speech is protected to the same degree as non0-commercial speech. |
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Freedom of Association: Equitable Defenses
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"Equity will not interfere with the internal management of an association."
Exception: Where a property right is embedded in an association membership |
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Injunction Sought Against Criminal Act:
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Equity will not enjoin crime:
Constitutional problems are raised since such a remedy woudl deprive D of procedural safeguards in the criminal justice system (e.g. jury trial, burden of proof) Exception: Equity will act if the crime is also a public nuisance and criminal prosecution is an inadequate remedy |
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Injuntion Sought Against Prosecution of a Crime
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"Equity will not enjoin prosecution of a crime"
Rationale: Adequate remedy at law: D can go to trial and defend his case Separation of Powers: Decision to prosecute is within the executive branch. Exception: Where criminal statute is unconstitutional on its face or has formerly been declare unconstitutional |
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Parties Bound by Injunction
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Only parties, privies and those acting in concert with notice are bound by an injunction. Non-parties acting independently are free to ignore the injunction and cannot be held in contempt.
Exception: But in-rem injunctions run with the land. |
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Enforcement of Injunction
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Civil: Purpose is to coerce D into complying with decree and not to penalize D, since D has the "keys to the jail" in his pocket." D can collaterally attack validity of underlying decree.
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