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191 Cards in this Set
- Front
- Back
elements of a prima facie case
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(i) A duty on the part of defendant to conform to a specific standard of conduct for protection of plaintiff against an unreasonable risk of injury;
(ii) A breach of that duty by defendant; (iii) The breach is the actual and proximate cause of plaintiff’s injury; and (iv) Damage. |
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duty of care is owed to:
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all foreseeable plaintiffs
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standard of duty of care
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depends on applicable standard of care
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majority view for potentially unforeseeable plaintiffs
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P2 can recover only if she can establish that a reasonable person would have foreseen a
risk of injury to her under the circumstances; i.e., she was located in the foreseeable zone of danger |
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minority view for potentially unforeseeable p
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P2 may establish the existence of a duty extending from defendant to her by a showing
that defendant has breached a duty owed to P1. |
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rescuers as foreseeable P
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A rescuer is a foreseeable plaintiff where defendant negligently put himself or a third person in peril (i.e., danger invites rescue)
EXCEPTION: firefighter's rule |
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Intended Beneficiaries of Economic Transactions
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A third party for whose economic benefit a legal or business transaction was made
(e.g., a beneficiary of a will) may be a foreseeable plaintiff. |
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basic standard of care
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reasonable person.
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definition of reasonable person
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objective standard, i.e., one’s conduct measured
against what the average person would do. A defendant’s mental deficiencies and inexperience are not taken into account (i.e., stupidity is no excuse). However, the “reasonable person” is considered to have the same physical characteristics as defendant (but remember, one is expected to know one’s physical handicaps and to exercise the care of a person with such knowledge |
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standard of care for professionals
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A professional or someone with special occupational skills is required to possess
the knowledge and skill of a member of the profession or occupation in good standing in similar communities |
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Medical specialists' standard of care
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national standard
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Duty to Disclose Risks of Treatment
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duty to disclose the risks of treatment to enable a patient to
give an informed consent. A doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent on learning of the risk. |
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emergency situation
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defendant must act as a reasonable person would under the same emergency
conditions. unless defendant created emergency |
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statutory standards of care replacing CL
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(i) the statute provides for a criminal penalty,
(ii) the statute clearly defines the standard of conduct, (iii) plaintiff is within the protected class, and (iv) the statute was designed to prevent the type of harm suffered by plaintiff. |
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violation of statute is____
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negligence per se. namely, establishes there was a duty and there was a breach of said duty
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when there is a duty to act
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Assumption of Duty by Acting,
Peril Due to Defendant’s Conduct; Special Relationship Between Parties; Duty to Control Third Persons; |
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assumption of duty by acting
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One may assume a duty to act by acting. Namely, once the defendant starts acting he must do it with due care.
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Peril due to defendant’s conduct
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One has a duty to assist someone he has negligently or innocently placed in peril
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Special relationship between parties
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A special relationship between the parties may create a duty to act.
Similarly, common carriers, innkeepers, shopkeepers, and others that gather the public for profit owe duties of reasonable care to aid or assist their patrons. In addition, places of public accommodation have a duty to prevent injury to guests by third persons. |
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Duty to control third persons
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Generally, there is no duty to prevent a third person from injuring another. An affirmative
duty may be imposed, however, if one has the actual ability and authority to control a person’s actions, and knows or should know the person is likely to commit acts that would require exercise of this control. |
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rule for when a breach occurs
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Where defendant’s conduct falls short of that level required by the applicable standard of care owed to the plaintiff.
whether it has occurred is a factissue for the trier of fact. |
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proof to establish breach
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custom or usage; violation of the statute; res ipsa loquitor
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custom or usage as proof to establish breach
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it may establish breach, but does not control the question
of whether certain conduct amounted to negligence. |
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violation of the statute
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Existence of a duty owed to plaintiff and breach thereof may be established as a matter of
law by proof that defendant violated an applicable statute (“negligence per se”). Causation and damages must still be established by plaintiff. |
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RIL
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The
doctrine of res ipsa loquitur requires plaintiff to show that (i) the accident causing the injury is a type that would not normally occur unless someone was negligent, and (ii) the negligence is attributable to defendant (i.e., this type of accident ordinarily happens because of the negligence of someone in defendant’s position). This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of defendant. |
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causation requirement
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plaintiff must show both actual cause and proximate cause.
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actual cause (cause in fact) tests
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but for, Joint Causes—Substantial Factor Test, Alternative Causes Approach.
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alternative causes approach
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This test applies when there are two acts, only one of which causes injury, but it is not
known which one. The burden of proof shifts to defendants, and each must show that his negligence is not the actual cause. [Summers v. Tice] |
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proximate cause
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overall rule: defendant generally is liable for all harmful results that are the normal incidents of
and within the increased risk caused by his acts. This is a foreseeability test |
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limitation of proximate cause
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Defendant is not liable for unforeseeable
harmful results not within the risk created by defendant’s negligence. Most harmful results will be deemed foreseeable in direct cause cases.. |
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Foreseeable Results Caused by Foreseeable Intervening Forces
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Defendant is liable where his negligence caused a foreseeable harmful response or reaction from a dependent intervening force or created a foreseeable risk that an
independent intervening force would harm plaintiff. |
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almost always foreseeable intervening forces
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i) subsequent medical malpractice, (ii) negligence of rescuers, (iii) efforts to
protect the person or property of oneself or another, (iv) injuries caused by another “reacting” to defendant’s actions, (v) subsequent diseases caused by a weakened condition, and (vi) subsequent accident substantially caused by the original injury |
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may be foreseeable intervening forces
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defendant's negligence must have increased the risk of harm from this. if
defendant’s negligence increased the risk of harm from these forces. (i) negligent acts of third persons, (ii) crimes and intentional torts of third persons, and (iii) acts of God. |
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foreseeable result caused by unforeseeable intervening force
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defendant liable. Defendant is liable where his negligence increased the risk of a foreseeable harmful result and that result is ultimately produced by an unforeseeable
intervening force. This rule does not apply where the unforeseeable intervening force was a crime or intentional tort of a third person. |
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unforseeable result foreseeable intervening force
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defendant not liable. (most courts)
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Unforeseeable Results Caused by Unforeseeable Intervening Forces
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not liable
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personal injury damages
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compensated for all his damages (past, present, and prospective), both
economic damages (such as medical expenses) and noneconomic damages. plaintiff suffering physical injury also may recover damages for any resulting emotional distress. |
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property damage
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The measure of damage is the reasonable cost of repair or, if the property is nearly destroyed, the fair market value at the time of the accident.
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punitive damage
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Plaintiff may recover punitive damages if defendant’s conduct is “wanton and willful,”
reckless, or malicious |
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duty to mitigate
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plaintiff has a duty to take reasonable steps to mitigate damages (e.g., seek
appropriate treatment). |
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transferred intent creates liability when
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1. the individual commits the same tort intended against a different person
2. the individual commits a different tort against a different person. 3. the individual commits a different tort against the same person. |
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transferred intent doctrine applies to
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1. assault
2. battery 3. false imprisonment 4. trespass to land or 5. chattel |
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incapacity is ____ defense
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not a good defense.
the insane and young are held liable for their intentional torts. |
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elements of battery
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harmful or offensive conduct
to the plaintiff's person intent causation |
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harmful or offensive conduct
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reasonable person standard
Defenses: consent, implied consent if the contact is the type reasonably expected in public life. |
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conduct
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can be direct or indirect
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plaintiff's person
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anything connected to the plaintiff's person, including purses.
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damages for battery
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Nominal damages available
punitive damages for malicious conduct. |
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element for assault
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An act by the defendant creating a ireasonable apprehension in the plaintiff of immediate or offensive contact
intent causation |
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words as assault
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words alone are insufficient for assault, but words which would put a reasonable person at ease can negate assault.
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elements of false imprisonment
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An act or omission that confines or restrains the plaintiff to a bounded area
intent causation |
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confines or restraints
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physical force, barriers, threats of force, failure to release, and invalid use of legal authority.
does not include: moral pressure and future threats |
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bounded area
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freedom must be limited in all directions
no reasonable means of escape known to the P |
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IIED
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An act amounting to extreme or outrageous conduct,
intent or recklessness causation for damages there must be severe emotional distress |
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extreme or outrageous conduct
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conduct so extreme it surpasses all bounds of decency
conduct which normally does not fall into this category may do so if: it is continuous in nature, or directed to a susceptible plaintiff, or by a certain type of defendant (one with more power) |
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liability to third parties for IIED
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if you can prove the prima facie elements
or she was present when the injury occurred AND she is a close relative of the plaintiff AND the D knew the two above. |
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trespass to land
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physical invasion of Ps real property
intent causation NO requirement for damages |
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intent for trespass
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intent to enter the land not necessarily knowing it was owned by another.
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trespass to chattels
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an act that interferes with P's right of possession
intent causation damages |
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damage
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doesn't have to be the chattels but at least to the possessory right.
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elements of conversion
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An act of the defendant which interferes with the P's right of possession in the chattel
interference is so serious that it warrants requiring d to pay the chattels' full value intent causatin |
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damages for conversion
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fair market value or possession
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common law elements of defamation
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defamatory language of or concerning the plaintiff
publication thereof by the defendant to a third person damage to P's reputation |
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Constitutional protections for matters of public record
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In addition to the CL elements
need fault on the part of the D and falsity of the statement -this is a defense not a prima facie element.. |
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Defamation referring to some members of a small group
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P can win if a reasonable person would think the statement refers to him/her.
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Publication [defamation]
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the communication of the defamation to someone other than the P
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intent to defame
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can be intentional or reckless
intent to PUBLISH. SPECIFIC media issue: most states have statutes which mean that every newspaper article is one defamation. rather than every copy being a count of defamation. |
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Liability for defamation
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for the primary publisher to the same extent as the author or speaker. Anyone who repeats the publication even if they make clear they don't believe it on the same ground as the publishers.
HOWEVER: there is no liability for someone who distributes the newspaper or plays the tape unless they should have known about the defamatory content. |
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Damages required for slander
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Must prove special damages namely some pecuniary harm. However, once you prove this can also recover for general harm.
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Slander per se
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Adversely reflect on one's conduct in profession or business;
one has a loathsome disease; one is or was guilty of a crime involving moral turpitude; or a woman is unchaste. |
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defamation on a matter of public concern
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falsity on the part of the statement, and fault on the part of the defendant.
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if P has to prove fault
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then P also has to prove falsity.
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definition of a public figure
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a public figure is someone who has achieved pervasive fame or notereity or someone who has voluntarily taken a central role in a particular public controversy.
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______ is required if it is a public figure
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malice
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Malice
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Knowledge of falsity or reckless disregard about the possibility of falsity
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If actual malice and private figure
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then damages are presumed, and don't need to demonstrate any
Additionally can recover punitive damages. |
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minimum standard for private figure and a matter of public concern
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negligence
-note this is because constitutional standards don't apply if not a matter of public concern. -if not malice then also will need to show damages. |
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Absolute privilege in defamation cases
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statements made in a judicial proceeding, between spouses, in a compelled broadcast, by a legislator in proceedings, by federal executive official.
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Qualified privilege to defamation
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Can be lost through abuse.
reports of official proceeding, statements in the interest of the publisher, statements in the interest of the recipient, and statements in the common interest of the publisher and recipient. |
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Four types of branches for invasion of privacy
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Appropriation of Plaintiff's picture or name;
-usually limited to commercial advantage, advertisements or products, and not just economic benefit. intrusion upon the P's affairs or seclusion -the act or prying must be highly offensive to a reasonable person. publication of facts placing P's in a false light. -highly offensive to a reasonable person under the circumstances public disclosure of private facts about the P -highly offensive to a reasonable person under the circumstances |
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elements of invasion of privacy
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invasion of privacy
causation -proximate causation proof of special damages unnecessary -no special damages necessary. emotional distress and mental anguish sufficient |
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defenses to invasion of privacy
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consent and privileges
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elements of misrepresentation.
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misrepresentatio of a material fact
scienter (knew or believed it was false or there was no basis for the statement) intent to cause the P to actor refrain from acting in reliance upon the misrepresentation. causation (actual reliance) justifiable reliance damages |
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elements of negligent misrepresentation
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misrepresentation in a professioanl or business capacity
breach of duty towards a particular P causation justifiable reliance damages |
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interference with business relationships
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existence of a valid contractual relationship between P and a third party;
defendant's knowledge of the contract or expectancy and intententional interference by the D inducing a breach or termination of contract/relationship/expectancy AND damages |
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privileges for interference with business relationships
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D's conduct may be privileged
when it is a proper attempt to preserve its business or obtain business for itself |
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prima facie case for malicious prosecution
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institution of criminal proceedings against the P, termination in P's favor, no probable cause for prior proceedings.
improper purpose damages NOTE prosecutors immune from liability |
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prima facie case for abuse of process
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wrongful use of process for an ulterior purpose,
definite act or threat against P to accomplish the ulterior purpose. |
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prima facie case for negligence
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1. A duty on the part of the D to conform to a specific standard of conduct for protection of P against an unreasonable risk of injury;
a breach of that duty by D; breach and proximate cause of that injury; damages |
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duty of care
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duty of care is owed to all foreseeable Ps
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Under the Cardozo majority view what happens when the D breaches a duty to a foreseeable P and causes an injury to a third party
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Cardozo=zone of danger
second P can recover only if a reasonable person would have foreseen a risk of injury to her under the circumstances. |
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Minority view on what happens when the D breaches a duty to a foreseeable P and injures a third party
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Liable (Andrews view)
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Rescuers as P in a neglience situation
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D is liable when s/he puts himherself in a position needing rescue negligently.
"danger invites rescue" |
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prenatal injuries
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duty owed to a viable fetus
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intended beneficiary of economic transaction
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A third party for whose benefit a contract was made may be a oreseeable P
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standard of care
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reasonable person standard
an objective standard and though someone is expected to know and acount for their physical handicaps, a person of that person's physical characteristics. |
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standards of care for professionals
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Professionals, other than medical professionals, are held to a community standard
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medical professional's standard of care
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national standard
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inkeepers' standard of care for negligence
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Innkeepers have a very high standard of care requirement.
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If the bailment is for the sole enjoyment of the bailee
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High standard of care
Bailor must inform Bailee of known dangerous defects in the chattel if it is a bailment for hire: must inform bailee of chattel defects of which he is or should be aware. |
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Duty to people off the premises
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No duty with regards to natural conditions;
Duty, however, for unreasonably dangerous artificial conditions, or structures abutting adjacent land. One must carry out activitites so as to avoid unreasonable risk of harm to others outside the property. |
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undiscovered trespasser
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no duty
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discovered or anticipated trespasser
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warn of or make safe, concealled, unsafe, artificial conditions known to the landowner involving risk of death or seriously bodily harm.
AND use of reasonable care of active operations on the property. |
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Attractive nuisance doctrine
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dangerous condition on land that P is or should be aware of;
that children frequent the vicinity of the condition, condition likely to cause injury; and the expense of remedying the condition is slight as compared to the magnitude of the risk |
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duty owed to licensees (which includes social guests)
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Possessor has the duty to warn of dangerous conditions (natural or artificial) known by the owner that create an unreasonable risk of harm.to the licensee and that the licensee is unlikely to discover
AND exercise reasonable care in the conduct of activities NO duty to inspect and repair |
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duty owed to invitees
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Possessor has the duty to warn of dangerous conditions (natural or artificial) known by the owner that create an unreasonable risk of harm.to the invitee and that the invitee is unlikely to discover
AND exercise reasonable care in the conduct of activities AND inspect and repair nonobvious dangerous conditions. |
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owner of recreational land that does not charge a fee
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no duty, unless wilfully and maliciously refuses to warn or guard against a dangerous condition or activity.
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statutory duty of care
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Statute can define additional standards of care if:
statute provides for criminal penalties, clearly defines standard of conduct, P within protected class, and statute was designed to prevent the type of harm the P suffered. |
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An unexcused statutory violation is
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negligence per se (so would just need to show then causation and damages)
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Negligent infliction of emotional distress liability to a bystander
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1. the third party and the person injured were closely related
2. P present at the scene of injury 3. P personally percieved or observed the event. |
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Prima facie elements of strict liability
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The nature of the D's activities imposes an absolute duty to make safe, the dangerous aspect of the activity is the actual and proximate cause of the injury, and the P suffered damage to person or property
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trespassing animals
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owner strictly liable for harm done by trespassing animal
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Wild animals
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Strict liability to licensees and invitees for injury done by wild animals so long as P didn't do anything to bring about injury.
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domestic animals
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NOT strictly liable, unless the owner has knowledge of dangerous propensities of the animal not common to his species.
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vicious watch dogs
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May be liable on intentional torts grounds even to trespassers
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An activity is abnormally dangerous if:
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creates a foreseeable risk of harm even when reasonable care is exercised by all parties. and the activity is not a matter of common usage for the community.
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duty of care when conducting an abnormally dangerous activty
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Absolute duty to make safe the normally dangerous characteristic. Owed to all foreseeable P
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Five theories of products liability
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intent, negligence, strict liability, implied warranty of merchantibility and fitness for a particular purpose, and representation theorites
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elements of any products liability claim
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defect and the existence of the defect when the product left the D'scontrol.
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manufacturing defect
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D is liable if the P can show that the product failed to perform as safely as an ordinary consumer would expect.
when a product is more dangerous than the others. |
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design defect
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D could have made the product safer without serious impact on the price or utility.
when all the products are the same, but dangerous propensities. |
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intent for products liability cases
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rare, but when it happens it is a battery tort.
D needed to intend the consequences, or know that they were substantially certain to occur. |
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who can be liable in a negligence action
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commercial suppliers: manufacturers, wholesalers, and retailers.
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breach of duty in a negligence action
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negligent conduct of the defendant leading to the supplying of a defective product.
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strict liability in a product defect case (the most common and what should be our default)
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strict duty owed by a commercial supplier of the product, production or sale of a defective product, actual and proximate cause, and damages
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duty in a SL PD case
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the supplier owes a duty to provide a safe product.
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Implied warranty of merchantibility and fitness
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the goods are of average acceptable aquality and are generally fit for the ordinary purpose for which the goods are generally used.
Fitness for a particular purpose: when seller knows or has reason to know the particular purpose for which the goods are relying and the buyer is relying on the seller's skills and judgment in selecting the goods. |
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private nuisance
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substantial unreasonable interference with another private individual's use or enjoyment of property that he actually possesses or to which he has the right of imediate possession
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substantial interference
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interference which is offensive, incovenient, or annoying to the average person in the community
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unreasonable interference
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severity of the injury must outweigh the utility of the defendant's conduct.
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public nuisance
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An act that unreasonably interferes with the health, safety, or property rights of the community
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private party recover for public nuisance
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only if the private party suffered a unique damage not suffered by the public at large.
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partners and joint ventures' vicarious liability
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each member of a partnership or joint venture is liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture.
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family car doctrine (many not every state)
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the owner of the car is vicariously liable for the torts of immediate family or household members driving the car with express or implied permission.
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Permissive use (some states)
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liability for torts of anyone driving the car with the owner’s permission
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incapacity as a defense for intentional torts
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Incapacity is NOT a defense for intentional torts.
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contact for battery must be:
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with P's person
however, note extensions of P's person will count. not purse, but if the P is riding a horse slapping the horse will be a battery.. |
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the time element of battery
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Battery need not occur instantly. Namely, you can take an action and it can touch the P later.
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instrumentality of battery
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the D does not have to use his body to effectuate thebattery.
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For assaults: Menacing behavior but no ability to follow through
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common sense answer. you have to think would it put the P in reasonable apprehension.
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conditioning words, in an assault claim
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would defeat the reasonable apprehension element.
no liability. |
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time woulds in an assault claim
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would defeat the reasonable apprehension element.
no liability |
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In a False imprisonment claim
threats |
are sufficient to constitute an act of restraint.
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the erection of a barricade leads/does not lead to a FI claim
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does not, as there are three other directions in which the P can go.
(not i the barricade is right outside the door where the P is inside) |
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An omission in a false imprisonment case
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can give rise to a claim if they have a duty to help the P move around.
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an area is considered bounded if there is an escape but
(FI claim) |
1) the P does not know about it and cannot reasonably discover it
2) it is not a reasonable escape route if dangerous, humiliating or hidden |
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For a FI claim If P is oblivious that act of restraint took place
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there is no liability unless the P is harmed
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Common carrier or innkeeper's liability for IIED
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they have a heightened liabilit as they have a common law duty for courtesy.
if these ppl behave rudely in a deliberate desire to distress passenger or guest their conduct is considered outrageous |
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If the P's actions in an IIED claim are directed towards a fragile P
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It is more likely that their conduct will be found outrageous. note, this fits within the general rule and is about their behavior towards the party.
examples; children the elderly pregnant women (D has to know she is pregnant) |
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the severe distress requirement for IIED
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doesn’t require physical harm
it will be up to the jury to see if this has been satisfied. |
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throwing a tangible item in a claim for trespass to land
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throwing a tangible item can constitute trespass to land even if the item does not land on the property.
note, must be tangible item. |
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Who can make a claim for trespass to land
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this is about interfering with possesory rights. so tenant can make the claim.
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NY distinction with regards to BFP and conversion of land
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a BFP cannot be held liable for conversion.
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Affirmative defenses to all the intentional torts
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consent
express implied Protective privileges Self-defense Defense of third persons Defense of property D will have to show proper timing, reasonable force, and reasonable belief |
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the effect of reasonable mistake on protective privileges
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does not damage it.
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NY distiction with re the use of deadly force
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NY imposes the duty to retreat.
Must retreat if it is feasible to do so unless you are in your own home. |
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deadly mechanical devices to defend your property
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are never allowed
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private necessity when you are helping the P
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creates no liability.
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In an emergency situation, even if it is private necessity, the D has a _____ to stay on the property
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right to stay on the property for the duration of the emergency.
the P can actually be liable for battery if he evicts or ejects the D during the emergency. |
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Name calling as defamation
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Name calling is not defamation
SO LONG as the statement is conclusory. Another exception is if it is facially an opinion but it is such an opinion that the listener would think it was based in fact. |
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character traits that are generally involved with defamation suits.
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:1. Honesty.
2. lack of peacebleness 3-impugn their loyalty. Loyatly to company, religious community, etc 4-impugn morality. Sexual, moral, restraint in matters of the heart. |
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in a libel case
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MBE: no need to show damages.
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in a slander case
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no damages needed if it is slander per se
otherwise, must prove damages damages must be economic harm. in NY: if it is not one of the per se categories AND defamatory impact is not clear on the face of the statement but requires additional evidence |
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Slander per se categories
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remember in NY this is needed for libel if you don't want to show damages to.
1.A statement relating to P’s business or profession 2.A statement that P has committed a crime of moral turpitude. 3.A statement imputing unchastity to a woman. a.Does not require promiscuity but that single woman is sexual active. 4.A statement by D that P suffers from a loathsome disease. a. Leprosy b. Venereal disease |
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Affirmative defenses to defamation
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consent
truth privilege (absolute and qualified) |
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Absolute privileges (defenses to defamation)
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arises based on the identity of the D as it is a function of who the D is.
1. spousal immunity 2. governmental officers engaged in conduct of their official duties. legislators, judges, lawyers. |
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qualified privilege
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determined on a case-by-case basis.
arises when there is a strong social interest in encouraging candor. Defendant must 1. Have a reasonable belief that what he is saying is accurate. 2.Have to stay within scope of privilege. |
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If the P is a public figure then the fault necessary for a defamation case
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intent or recklessness
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If the P is not a public figure, but it is a matter of public concern, then the fault requirement is:
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negligence
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the privacy tort(s) recognized in NY:
|
the ONLY is:
appropriation. |
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the falsehood in a false light privacy tort:
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need not be defamatory.
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intent requirement for a false light tort
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no intent requirement, even a good faith error would subject you to a liability.
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damages in a false light sitution include:
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emotional damages
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IN NY
Prima facie tort |
Intentional infliction of pecuniary harm w/o justification.
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theft of trade secrets (NY)
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1. P must possess a valid trade secret.
a. There must be information that provides a business advantage to the possessor or owner 2. D must take it by improper means. a. Traitorous insider. i. Breach of trust. (implied confidentiality and relationship when the traitor first learned the secret) ii. Initially learned secret legitimately. Industrial spy i. Outsider who tracks through security. ii. Breaking a wall is always improper. iii. Violate ordinary standards of commercial morality. |
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NY Actions for prenatal injuries in negligence
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Impact on the body of a pregnant woman.
a. If the child is thereafter born with injuries, the child has a cause of axn in his own name. 2. Doctor misdiagnoses birth defects a. Parents can recover for the cost of caring for the child that are in addition the costs of raising a healthy child. 3. Doctor botches sterilization. a. No recovery in NY. |
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in a negligence case if someone has some specialized knowledge
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they are presumed to know the specialized knowledge. so it will be added to the reasonable person.
basically it will be a reasonable person with that knowledge. |
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children in a negligence acton
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Children four through eighteen are held to the standard of care of a hypothetical child, of similar age, experience, and intelligence acting under similar circumstances.
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However, if the child is engaging in an adult activity
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then a normal reasonable person standard.
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NY for duties owed for injuries to entrants on the land.
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NY says reasonably prudent person regardless of the person's status as trespasser etc.
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NY's firefighter doctrine
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narrowed. the firefighter' doctrine applies only to employees or coworkers (so the firefighter could sue homewoner)
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NY good samaritan laws
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if you are a specialist trained and you decide gratuitiously to rescue someone no liability. the specialists are: doctor, nurse, vet.
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NY twist on bystander claim for negligent infliction of emotional distress
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the P must be in the zone of danger.
importantly, NY's bias is to narrowing the scope of this tort. something to remember. And in NY the classes are parent, spouse, child. NOT guardian. |
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preliminary injunctions
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rare. have to satisfy the normal requirements for an injxn
AND must show that they will likely succeed on the merits AND that they will suffer an irreparable injury in the absence of a preliminary iinjunction. |
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requirements to be able to get an injunction as a remedy
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1. That there is no adequate remedy at law.
for instance: Impecunious defendant, harm impossible to measure in monetary terms, conduct is ongoing, happens all the time making it onerous to get damages each time. 2. Tort in question impinges on a property interest or protectable right. 3. Injxn is enforceable. a. Courts nervous esp abt this with positive injxn. b. Have to show you can enforce it 4. Balance of hardship tips in favor of P. benefit to him outweighs the harm D would suffer. |
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defenses to getting an injunction
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1. Unclean hands. The argument here is that the D can show the P himself is guilty of some form of misconduct.
2. Laches. Prejudicial delay. (note prejudicial) 3. First amendment. be wary about asking to restrict speech. |
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vicarious liability
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1. employer/employee
scope of employment. but for intentional torts, if the job creates friction between employee and customer. 2. for IC torts if the tort happens to an invitee on the premises 3.3) Automobile owners and drivers. No vicarious liability. UNLESS you lend your car so they do an errand for you, vicarious liability. 1. NY distinction: a permissive use state: 4. parent/child. no liabilit unless statute NY statutorily makes parents liable up to a certain statutory amount. |
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NY's additional slander per se category
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imputation of homosexuality.
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NY defenses to invasion of privacy
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1. prior written consent
2. a photographer exhibiting his work unless continued after written notice of objection 3. .... things the maker has sold or disposed of with his name, picture, or portrait used in connection therewith. |
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NY's rule about who can sue for malpractice
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in NY only the client can sue the attorney for malpractice.
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NY's nps
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violation of a state statute constitutes nps. unexcused breach of a regulation or local ordiance is only some evidence of negligence.
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