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37 Cards in this Set
- Front
- Back
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Incapacity - Intentional Torts
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Every D s/b held liable for ITs = no incapacity defenses!
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Intentional Torts - Battery
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Intent by D to cause a harmful or offensive contact and contact results with, to, or upon P's person
- offensive = unpermitted by persons of ordinary sensitivity - does not have to happen immediately or involve P's person (holding, touching, connected w/) |
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Intentional Torts - Intent Requirement
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specific intent or a knowledge to substantial certainty that the consequences will result
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Intentional Torts - Causation Requirement
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Satisfied when D's conduct was a substantial factor in bringing about P's injury
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Intentional Torts - Assault
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D intentionally places P in reasonable apprehension of immediate battery (harmful or offensive contact)
- Apprehension does not mean fear, but knowledge! Words alone not enough - requires overt conduct like brandishing a weapon. |
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Intentional Torts - False Imprisonment
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D intentionally engages in an act of restraint that results in P's confinement to a bounded area, AND P knows of the confinement or is harmed by it.
- Threats c/b sufficient if meaningful to a person of ordinary sensitivity Bounded area = 360 degrees, all directions. - Not bounded if reasonably discoverable and reasonable means of escape (no right to subject P to physical danger) |
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Intentional Infliction of Emotional Distress
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D intentionally engages in outrageous conduct meant to upset P and results in severe ED to P.
- Reckless behavior is enough - Conduct that exceeds all bounds of decency tolerated in a civilized society PLUS factors w/ hallmarks of outrageousness - continuous or repetitive conduct - type of D = common carrier, innkeeper, etc. - P is a fragile class = young children, elderly, pregnant women - Hypersensitive persons IF D knew of the sensitivity (outrageous to target a known emotional vulnerability) |
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Intentional Torts - Trespass to Land
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Intent to enter land (merely crossing a boundary), act of physical invasion to land of someone who is in actual or constructive possession w/o privilege or consent.
- Physical presence or throwing/causing a tangible object to go there - includes air above and below, to a reasonable distance |
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Intentional Torts - Trespass to Chattels and Conversion
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Intentional interference w/ P's right of possession in chattel (intermeddling/dispossession), causation, actual damages.
- Recovery = actual damages from harm to chattel or loss of use, rental value Conversation - intentional act by D interfering w/ P's right of possession in chattel (wrongful acquisition, detention, transfer, or substantially changing, severely damaging or misusing chattel), causation and damages - so serious, it warrants D paying FMV - like a forced sale |
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Intentional Torts - Affirmative Defenses
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Consent - defense if P had legal capacity
- Narrows to scope of consent - Express or Implied Protective Privileges - self-defense and of property Necessity Recapture of Chattels Re-entry onto Land |
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Consent Affirmative Defense
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Express
- giving D permission to behave in the challenged way - void if given under fraud or duress Implied - Apparent by Custom and Usage = participating in activity or going to a place where routine invasions are customary OR D's reasonable interpretation of P's objective conduct - Implied by Law = when action necessary to save a life OR another important interest in person or property |
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Protective Privileges - Defense
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M/b response to conduct in-progress or imminent = in the moment!
Reasonable belief that threat is genuine - reasonable mistake w/n negate availability of defense. Test = D reasonably believes she is being/about to be attacked, use reasonably necessary force to prevent injury, same as to defend 3P, and to protect property IF request cease and desist or tort already committed. - no deadly force to protect property |
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Necessity Defense
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Property torts only.
Public = D interferes w/ P's property to protect community/particular group - absolute defense! Private = D invades P's property to protect his own interests - limited defense - D liable for actual harm done, but NOT nominal/punitive damages - D free to remain on land in position of safety until emergency ends - P m/b liable for ejecting, expelling, etc. |
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Common Law Defamation
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D makes defamatory statement specifically IDing P, publishes it, and damage results to P.
- mere insults are not defamatory - reflects negatively on trait of character - honesty, morality, etc. - negligent publication sufficient DAMAGES - LIbel = d/n/h to prove damages to get to jury. Same for radio and tv broadcasts - Slander Per Se = no need to prove damages for spoken statements concerning P's business or profession, that P committed crime of moral turpitude, imputing on a woman's chastity, or suffering from a loathsome disease - Other Slander = M/show economic harm |
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Constitutional Defamation
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If matter of PUBLIC CONCERN - adds to CL test
- Falsity = P M/show the statement was false (no truth AD) - Fault = P M/show D d/n/h reasonable basis for GF belief in accuracy of the statement - PUBLIC figure = Actual malice standard/proof of reckless behavior or intent by D - PRIVATE figure = negligence standard (did not act as RP to verify the statement) |
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Defamation Affirmative Defenses
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Consent
Truth = if D can prove statements were factually accurate Privilege - Absolute = based on status/ID of speaker - Qualified = based on circumstances of speech and is available to D if: - D spoke in GF AND - D confined herself to matters relevant to the purpose at hand Mitigating factors - retraction, provocation, lack of malice - will be considered on damages issue, but are not defenses |
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Privacy Torts
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Disclosure = widespread dissemination of confidential information about P that w/b objectionable to an average person (underlying information w/b truthful) - sensitive, private
- Newsworthiness and Dual Life exceptions Intrusion = D invades P's seclusion in a way objectionable to average person - P M/h REP; no requirement for physical trespass Appropriation = D uses P's name/likeness for commercial purpose - newsworthiness exception False Light = widespread dissemination of material falsehood about P that w/b objectionable to an average person - not IT; liable even where D has GF belief in accuracy of information AFFIRMATIVE DEFENSES = consent and privileges w/r/t disclosure and false light |
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Misrepresentation Torts
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Intentional Misrepresentation
- fraud and deceit PFC = knowing misrepresentation of material fact intended to induce P to act/refrain in reliance AND actual reliance plus actual damages - No affirmative defenses Negligent Misrepresentation - PFC = D's misrepresentation in a business/professional capacity, breaching a duty to a PARTICULAR P, causation, justifiable reliance, and damages. |
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Wrongful Institution of Legal Proceedings
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Malicious Prosecution
- instituting criminal proceedings against P, terminated in her favor, w/ no PC for prior proceedings (no sufficient facts for RP to believe P was guilty or that D believed so), an improper purpose AND damages - Prosecutor immune from liability Abuse of Process - wrongful use of process for ulterior purpose and definite act or threat against P in order to accomplish the purpose |
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Interference w/ Business Relations
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Existence of valid K relationship or expectation b/t P and 3P
D knows of such relationship/expectancy D intentionally interferes - inducing br/K or termination of expectancy/relationship Damages AFFIRMATIVE DEFENSE - D's conduct privileged if proper attempt to obtain business or protect interest, most especially when interference is w/ P's prospective business |
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Negligence Torts - Elements
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Duty
Breach of Duty Causation Damages |
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Negligence Torts - Duty
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Duty of Care owed to foreseeable Vs - unless rescuers
Standard of Care = reasonably prudent person acting under similar circumstances (objective!) - no external attributes - Exceptions for superior knowledge and physical characteristics (i.e. blindness) |
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Particular Standards of Care
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Children
- Under 4y = legally incapable of negligence and no duty of care - 4-18y = owes the care of a hypothetical child of similar age, experience and intelligence acting under similar circumstances - EXCEPT = engaging in adult activity requires RP standard Professionals/Client Services - M/h knowledge and skill of a member of the community in good standing = owes care of average member of the profession acting in a similar community - National standard of care for medical specialists - Duty to disclose risks of treatment to enable IC. If not and treatment unsuccessful, P can sue and win showing she w/h declined procedure if h/k of risks Common Carriers/Innkeepers Land Possessors |
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Land Possessors' Duty of Care
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ACTIVITIES = get RP care across the board. Conditions:
Undiscovered Trespassers = no duty Discovered/Anticipated Trespassers = protect against all known man-made death traps Licensees (no economic benefit) = protect against all known traps Invitees (economic benefit) = protect against all reasonably knowable traps SPECIAL CATEGORIES: - firefighters, etc. = can never recover for injury, inherent risk of job - Children = RP if presence on land is foreseeable Note: c/discharge by warning or fixing problem |
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Statutory Standards of Care
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P M/demonstrate:
- she is the class of persons statute seeks to protect AND - accident or injury is in class of risk statute protects against EXCEPTIONS - compliance more dangerous than violation or impossible under the circumstances, do NOT borrow the statute |
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Duties to Act Affirmatively
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Generally none - Except:
- Relationship - Assumption = good samaritan statutes exempt from liability for ordinary, but not gross negligence - Third Parties = if you have actual ability and authority to control 3P AND know or s/k she is likely to commit acts requiring exercise of that control - Created the Peril |
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Negligent Infliction of Emotional Distress
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DOES NOT APPLY when P suffers physical trauma to the body b/c of D's negligence.
Must Show: - P was in zone of physical danger b/c of D's act (near-miss!) AND subsequent physical manifestations Bystander Cases/Grief and Sadness - recovery if show proximity along time, space, and relationship |
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Negligent Torts - Breach of Duty
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Res Ipsa Loquitur
- injury normally associated w/ negligence - show D had control of object - crates inference and gets to jury Note: State SOC and any exceptions - specify wrongful behavior and explain why unreasonable ... |
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Negligent Torts - Causation
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Factual/But For = but for breach, P w/h escaped harm
- joint causes = substantial factor test (c/lead to joint liability) - unascertainable = jointly and severally liable Ds if they caused unascertainability Legal/PC = measure fairness by foreseeability - Direct Cause = continuous sequence from D's breach to P's injury (usually - unless results are freakish and bizarre) - Indirect Cause = intervening stuff - foreseeable and fair if Well-Settled Quartet: - Intervening Medical Malpractice - Intervening Negligent Rescue - Intervening Protection or Reaction Force - Subsequent Disease or Accident |
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Negligent Torts - Damages
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Punitive = D's conduct was wanton, willful, reckless, malicious
P has duty to mitigate adn c/n recover attorney fees or interest Not reduced b/c P has collateral sources of recovery Take P as you find her = all damages, even if they are surprisingly great in scope. |
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Negligent Torts - Affirmative Defenses
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Common Law
- Contributory Negligence = all or nothing/any fault = absolute bar to recovery - Assumption of Risk = knew of risk and proceeded anyway - implied if average person w/h appreciated the risk - no AOR if P d/n/h alternatives CURRENT = Comparative Negligence - Jury instruction = assign parties a percentage of fault - Pure = P recovers something, based on percentage - Partial/Modified = P recovers only if she is less than 50% responsible - and proportional reduction Note: Rescuers exposed to certain amount of risk not CN |
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Strict Liability Torts
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Domesticated Animals = when h/k of vicious propensities
Wild Animals = always Abnormally Dangerous Activities - Poses risk of serious harm even w/ reasonable care AND - not a matter of common usage in community Defective Products |
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Strict Liability Torts - Defective Products
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P M/show:
- D was a merchant/commercial seller/Avis (not casual seller or service provider) - Prove defect in product - Manufacturing = safety precautions irrelevant, departs from design in a dangerous way - Design = another way to build/hypothetical alternative that is safer, economical and practical - Information = residual risks consumers w/n/b aware of AND lack of warnings - E that product w/n altered after leaving D's hands (presumed if traveling in ordinary channels) AND - P made foreseeable use of product (not necessarily intended!) AFFIRMATIVE DEFENSES - P carelessness, foolishness, etc. IF P knew of danger - results in percentage of fault and reduction in recovery |
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Nuisance Tort
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D unreasonable interferes w/ use and enjoyment of property
- d/n/h to be intentional Balance the Equities = allow D to use property as she likes while guaranteeing P that he w/n/b unduly interfered with |
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Vicarious Liability
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Active and Passive Tortfeasors = always based on relationship
- ER/EE = w/in scope of ET; intentional torts where negligent hiring or retaining - Hiring parties and Independent K = possessor of land w/b VL if IK hurts an invitee - Car Owner/Driver = owner not VL unless driver is agent and is doing an errand for owner - Parent/Child = never - but look for other tort grounds based on parent's conduct |
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Joint Tortfeasors
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Multiple Ds = P collects all money from one D
Out of Pocket D can get back percentages from other Ds FULL indemnification - From active tortfeasor if VL - From manufacturer if non-manufacturer held SL for product defect |
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Loss of Consortium
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Uninjured health spouse gets second and separate COA:
- Loss of household services - Loss of sex - Loss of society/companionship |
