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153 Cards in this Set
- Front
- Back
- 3rd side (hint)
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What is an incapacity defense?
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Good question.
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Are there incapacity defenses to intentional torts?
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NO
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Give examples of individuals with limited legal capacities
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Children,
mentally ill elderly (perhaps) |
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What does it mean for an individual to act intentionally?
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A defendant acts intentionally if he desires to produce a legally forbidden consequence
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Describe the transferred intent principle
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If a defendenat desires to produce a legally forbidden consequence, then we hold him liable even if a different consequence occurs
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Name the seven intentional torts
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1) Battery
2) Assault 3) False Imprisonment 4) Intentional inflection of mental distress 5) Trespass to land 6) Trespass to chattels 7) Conversion |
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Name the elements of battery
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1) D must commit a harmful or offensive contact (objective)
2) Harmful or offensive contact must be with the plaintiff's person |
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What is an "offensive" contact?
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Contact that would be unpermitted by reasonable/normal person
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What does it mean to make contact with a plaintiff's person?
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Anything that the person is touching, holding, or carrying
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Name the elements of assault
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1) D places plaintiff in reasonable apprehension
2) That apprehension is of an immediate battery (words alone lack immediacy; needs a menacing gesture) |
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What is "apprehension?"
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Knowledge (ie. P must be aware of the threat to have the cause of action)
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Can a defendant be charged with an assault for a purely bluffing threat?
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Yes, if the P does not know that it is a bluff
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Can verbal threats alone without accompanying physical conduct, result in a cause of action for an assault?
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No.
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Can conditional words negate an immediate threat?
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Yes.
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Can a threat of future harm give rise to an assault cause of actioN?
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Nope. Negates immediacy
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Name the elements fo false imprisonment
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1) D must commit an act of restraint
2) P must be confined in a bounded area |
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What is an act of restraint?
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1) Threats (eg. if you leave,we'll call the cops)
2) Omission (failure to act if D owed plaintiff a duty to assist in movement) 3) Any other act which keeps the plaintiff from moving freely IF 4) P must be aware of the confienment or suffer harm from it |
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What is a bounded area?
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-Area without reasonable means of escape that plaintiff could reasonably discover.
-Dangerous, humiliating, disgusting, etc. is not a reasonable means of escape. -Hidden is not reasonbly discoverable. |
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Name the elements of intentional infliction of mental distress
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1) Outrageous conduct
2) that causes P to suffer severe distress (no physical symptoms required) Note: Mens rea is INTENT or RECKLESSNESS |
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What is outrageous conduct?
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Conduct is outrageous when it exceeds all bounds of decency tolerated in a civilized society. NOT: mere insults, constitutionally protected conduct.
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Name the hallmarks of outrageous conduct
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1) continuous or repetitive conduct,
2) D is a common carrier or an innkeeper, 3) P is a member of a fragile class (eg. children, elderly, pregnant women) 4) D deliberately targeting plaintiff's emotional weakness |
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Elements of trespass to land
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1) Act of physical intrusion
2) that interferes with P's exclusive possession of land (ad coelum) |
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What is a physical intrusion?
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1) D enters land (regardless of whether or not he is aware he did so)
2) D intentionally throws a tangible object on the land |
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What is trespass to chattles?
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Slight/modest interference with P's personal property
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What is conversion?
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Significant interference with P's personal property
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What does it mean to interfere with one's personal property?
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1) Damage item OR
2) Deprive P of possession of property |
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Remedy for conversion?
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Full market value of the item in question,not cost of repair.
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Remedy for trespass to chattles?
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Cost of repair of item in question
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Is a mistake regarding ownership of personal property a defense to trespas to chattles or conversion?
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NO
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Affirmative defenses to intentional torts
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1) Consent
2) self-defense 3) Necessity |
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To what intentional torts is consent a defense?
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All seven
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Elements of consent defense
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1) P had capacity to give legal consent
2) Express or implied consent |
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What is "express consent"?
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Lieteral words spoken by plaintiff giving defendant permission to act in a way that would otherwise be a tort, not by fraudulent means
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What is "implied consent"?
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EITHER
1) consent from custom OR 2) Consent based on D's reasonable interpretation of P'sobjective conduct |
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What is consent from custom?
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If P goes to a place or engages in an activity where certian types of invasions are customary, we assume that they consent tho those invasions
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What if D obtains consent but oversteps?
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D must always stay within scope of consent; not all or nothing
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Elements of self-defense defense
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1) P threatening D
2) D responds to threat immediate threat in real time. 3) D had reasonabl ebelief that the threat was genuine. Must be done "in the heat of the moment" Limited to proportional force |
Double check this one
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Can you use deadly force to protect property?
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NO
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To which torts does the necessity defense apply?
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Property. (conversion, trespass to chattles, etc.)
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What is the "public decessity" defense?
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D interferes with P's property in theevent of an emergency for the purpose of protecting thecommunity as a whole or a significant groupof people.
COMPLETE DEFENSE |
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What is the "private necessity" defense?
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D invades P's property in the event of an emergency to protect aninterest of his own.
PARTIAL DEFENSE ONLY |
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In a private necessity defense....
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D remains liable for any actual harmdoneto the property, no liability for nominal or punittive damages, and P cannot actively throw D off his land at the time.
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Name the elements of defamation
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1) D makes a defamatory statement specifically identifying the plaintiff (not necessarily by name)
2) D publishes that statement 3) Damages AND IF THE STATEMENT IS ON A MATTER OF PUBLIC INTEREST 4) falsity of the statement (effectively, inverts truth defense burden) AND 5) fault (D knew statement was false or was reckless in verifying accuracy) |
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What is a "defamatory" statement?
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A statement that tends to adversely affect plaintiff's reputation.
Typically an allegation or assertion of fact that reflects negatively on a trait of chracter. Mere insults insufficient |
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D issues a defamatory statement about a small group. Who may sue?
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Every member of the group has a claim
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D issues a defeamatory statemen about a large gropu. Who may sue?
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no one
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Can you be sued for defaming a dead individual?
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Nope.
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What does it mean to "publish" a statement for purposes of defamation?
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D shares statement with at least 1 person other than plaintiff
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Can statements/insults/allegations of fact said to an individual in private lead to a cause of action for defamation?
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No
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Does publication need to be intentional for purposes of a defamation claim?
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No, negligence is sufficient.
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How are damages calculated in libel cases?
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Some damages are presumed, but may prove more specifics if desired
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What is a libel case of defamation?
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Statement is written or otherwise preserved in a permanent format
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What is a slander case of defamation?
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Statement is oral only
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How are damages found in slander cases?
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1) Slander per se: Damages presumed
2) Slander not per se: evidence must be presented as to extent of damages |
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What is a "slander pre se" case?
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Any defamation case that deals with one of four topics (not open for expansion):
1) plaintiff's business or profession; 2) plaintiff committed a crime of moral terpitude; 3) Statement imputing unchastity to a woman 4) Plaintiff suffers from a "loathsome disease?" |
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What is a "statement imputing unchastity to a woman?"
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Any statement indicating that a single woman is sexually active.
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What is a "loathsome disease" for purposes of a defamation claim?
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1) Lepresy
2) Venereal diseases of any sort |
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What constitutes damage for defamation claims?
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Economic damage only!
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Name the defenses to a defamation claim
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1) Consent (express or implied)
2) Truth 3) Privileges (absolute or qualified) |
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What is an "absolute privilege" for purposes of defamation defenses?
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Privileges that flow from or are based upon who the D is
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Name the absolute privileges for pruposes of defamation defenses
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1) Spousal privilege
2) governmental officer exercising official duties 3) Fair reporting privilege (media privilege to accurately report) |
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What is a "qualified privilege" for purposes of defamation defenses?
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Privilege based on whent he D speaks- arises when there is a public interest in encouraging candor (Eg. former employer recommendation)
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What is a defendant required to prove to get "qualified privilege" in a defamation suit?
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1) good faith, reasonable belief that statement is true
2) Comments confimed to relevant matter |
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Name the four privacy torts
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1) appropriation
2) intrusion 3) false light 4) disclosure |
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name the elements of "appropriation?"
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1) D uses plaintiff's name or picture
2) for commercial advantage 3) in a context that is not newsworthy (anyone may have this cause of action, not just celebrities) |
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Name the elements of "intrusion"
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1) invasion of P's physical seclusion
2) in a way highly offensive to an average or ordinary person (eg. electronic surveillance, phone call interceptions, etc.) |
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Name the elements of "false light"
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1) Widespread dissemination
2) of a material falsehood about P 3) that would be highly offensive to average person (eg. false gossip; often found along with defamation) |
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What counts as "damages" for purposes of privacy torts?
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Emotional hardship
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Name the elements of "disclosure"
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1) Widespread dissemination
2) of TRULY AND DEEPLY confidential information (even if true) about P 3) that would be highly offensive to an average person. NOTE: crossing spheres of life is insufficient. |
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To which privacy torts is newsworthiness a defense?
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1) disclosure
2) appropriation |
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To which privacy torts is consent a defense?
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appropriation, intrusion, false light, and disclosure
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To which privacy torts are the defamation privileges defenses?
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1) false light
2) disclosure |
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READ OUTLINE ON THE FOLLOWING FIVE TORTS THEN FORGET THEM
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Economic:
1) Fraud 2) negligent misrepresentation 3) induce into breaking contract. Judicial process 1) malicious prosecution 2) another.... something. |
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Name the elements of a "negligence" tort
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1) duty
2) breach 3) causation (proximate and actual) 4) damage |
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To whom does a D owe a duty for their actions?
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Forseeable victims of D's carelessness and no one else.
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What are unforeseeable victims for negligence actions?
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Individuals outside the "zone of danger"
EXCEPTION: rescuer...? |
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What is "duty" for negligence suits?
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Obligation to take the risk reducing precautions with respect to individuals within the 'zone of danger" for your activities as would be taken by a reasonably prudent person under the circumstances
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What is the standard of care for negligence suits
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Reasonably prudent person under the circumstances (objective standard;
makes no allowance for personal shortcomings) |
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Exceptions to the standard of care in negligence suits
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1) If the defendant has superior skill or knowledge, then the standard becomes a hypothetical reasonable person with that superior skill or knowledge (eg. professional driver)
2) If D has some abnormal physical characteristic (pro or con), standard becomes a reasonably prudent person with that physical characteristic |
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Name the six "special duty" scenarios in negligence cases
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1) Negligence against children
2) Malpractice litigation 3) premesis liability 4) statutory standards of care 5) Affirmative duty cases 6) Negligent infliction of emotional distress |
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Standard of care for children
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1) children under 5 have no duty to anyone
2) children 5-18 are expected to exercise the care of a hypothetical child of similar age, experience, and intelligence acting under similar circumstances. 3) if child engaged in adult activity (eg. driving ANYTHING motorized), use reasonably prudent person standard regardless |
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Standard of care in malpractice litigation
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Professional owes patients or clients a duty to exercise the skill and knowledge normally possessed by members of that profession in good standing (relative to REAL WORLD COLLEAGUES, not imaginary ones). Additional duty for mental health professionals to warn individuals if their patients make a specific threat of harm.
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Standard of care in premesis liability
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Varies by type of entrant/P
1) unknown trespassers 2) Known trespassers 3) licensee 4) invitees |
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Describe a premesis liability problem.
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Individual harmed by a static condition on a property
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What is a licensee
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lawful entrants to a property who dont' confer economic benefit on the possessor
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What is an invitee?
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Lawful entrants to the property who confer economic benefit to the posessor OR property open to the public.
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Exceptions to standard of care in premesis liability
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1) firefighters/police officers may not recover for any injury that is an inherent risk of their jobs
2) child trespassers are entitled to the care of a reasonably prudent person with regard to artificial conditions on the land; varies with likelihood of children trespassing 3) Warnings are sufficient to meet duty. |
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What duty of care is owed to a known trespasser?
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Liability for artificial obstacles that are highly dangerous and concealed from the trespassers that the possessor was aware of; aka known man-made death traps.
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What duty of care is owed to a licensee?
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Duty to protect from concealed dangers known in advance by the possessors
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What duty of care is owed to an invitee?
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Duty to protect from concealed dangers known in advance to the possessors OR those that the possesors could have discovered through reasonable [not perfect] inspection.
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What duty of care is owed to an unknown trespasser?
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No duty whatsoever
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What is a statutory duty of care in a negligence lawsuit?
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If criminal statute exists, negligence (duty and breach) per se to violate that statute IF P CAN SHOW:
1) he is a member of the class of persons taht the statute was trying to protect AND 2) accident falls within the class of risks that the statute was trying to prevent. If P fails to show both prongs of this test, back to reasonably prudent person standard |
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Exceptions to statutory standard borrowing in negligence cases
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1) If compliance with statute would be more dangerous than violating it, don't use the statute as the standard even if the two part test is met.
2) if compliance with statute was impossible, dont' use statutes as standard even if two part test is met. |
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When is there an affirmative duty to act?
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Generally, never.
Exceptions: 1) parties have a pre-existing relationship 2) If D put P in peril |
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When is there a duty to rescue
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NEVER FOR STRANGERS. EXCEPTIONS:
1) parties have a pre-existing, formal relationship (eg. inkeeper-guest) 2) If D put P in peril (even if injury was not caused by negligence). In exception cases, there is a duty to take reasonable actions that do not imperil D's case |
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What duty applies to voluntary rescuers?
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-Must exercise reasonable care.
-No duty to rescue, but if you do, you need to do it reasonably (eg. not abandoning mid-stream) |
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What is negligent infliction of emotional distress?
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Because of D's actions, P is emotionally upset but not physically traumatized.
NOTE: DO REGULAR NEGLIGENCE ANALYSIS FIRST, THEN ONCE NEGLIGENCE ESTABLISHED, move to this for damages |
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What is a "near miss" case of negligent infliction of emotional distress?
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Negligence of the defendant put the plaintiff in a zone of physical danger, which caused emotional distress
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What standard of cares applies in near miss cases of negligent infliction of emotional distress?
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??????????
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What is the burden in cases of near miss negligent infliction of emotional distress?
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Burden on P, who must show:
1) that he WAS in a zone of physical danger AND 2) there are later, objective, physical manifestations of distress (although some jdx will allow psychiatric diagnoses) |
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What is a "bystander" case of negligent infliction of emotional distress
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D causes direct, physical injury to someone other than the plaintiff, and P is upset about the injury to the victim
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What is the burden in bystander cases of negligent infliction of emotional distress
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Burden on P, who must show:
1) that he is closely related to the victim AND 2) he was physically present AND 3) he was a contemporaneous witness to the accident (TV doesn't count) |
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What is a "relationship" case of negligent infliction of emotional distress?
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1) Parties are in a pre-existing business relationship AND
2) careles performance will foreseeably cause distress (Eg. lab mixes up patient blood results) |
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What does P need to plead to show breach of duty?
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1) Wrongful conduct AND
2) Why the wrontful conduct fell below the standard of care. WRITE THIS: "Plaintiff will allege that the breach here was [X FACT]. This is unreasonable because [GIVE REASON]." |
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What is the res ipsa loquitor doctrine?
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Special doctrine under the "breach" element. P need not plead specific acts, because the injury would not have occurred if no one was careless.
Instead, P must show: 1) accident is a type ordinarily associated with negligence AND 2) negligence is usually by someone in the defendant's position. |
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What are the two types of the causation element of a negligence claim?
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1) Factual case OR
2) Proximate cause. DO THEM IN THIS ORDER |
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What is "factual cause?"
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D's negligent act was a direct cause of P's injury
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What is the standard for proving "factual causation?"
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"But for" the defendant's breach, would Plaintiff be injured today?
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How is the factual causation analysis affected by merged causes?
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Multiple D's are negligent, but their actions merge to harm the plaintiff.
INSTEAD of "but for," ask whether each breach was 'substantial factor" in P's injury; could D's action alone have caused the P's injury? IF so, liability |
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What is an "unascertainable cause" case?
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Two Ds each take an action which may have caused P's injury, and only one of them dide, but there is NO WAY to determine which one did
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What is the standard for causation in an "unascertainable cause" case
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1) P must plead facts leading to an unascertainable cause case
2) Burden shifts to Ds to prove that their action DID NOT cause P's injury. |
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What is proximate cause?
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D's act indirectly (but foreseeably) caused P's injury; fairness/sanity check
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See engstrom notes
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Standard for proximate cause in "direct cause" fact patterns?
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find liability unless the accident can be classified as "freakish" and"bizarre"
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Standard for proximate cause in "indirect cause" fact patterns (Act + intervening + full harm)
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FOUR CLEAR PRECEDENTS of NO BREAK in proximate cause:
1) intervening medical negligence 2) Intervening negligent rescue 3) intervening protection or reaction forces 4) Subsequent disease or accident (NOTE: intervening actors can also be found liable) |
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What is the eggshell plaintiff rule?
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IF D satisfies all other elements of a negligence claim, he is liable for the entire scope of the harm even if it is surprisingly great in nature.
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When do you analyze for the eggshell plaintiff rule?
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Element of damage in negligence, but applies to ALL CASES OF TORT LAW
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Name the traditional affirmative defenses to a negligence claim
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1) Contributory negligence
2) implied assumption of the risk |
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Name the MODERN affirmative defense to a negligence claim
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Comparative negligence; burden on D to establish that P failed to take reasonably prudent steps to protect himself from harm (eg. follow self-protective statutes)
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How does comparative negligence affect damage calculations?
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1) D puts on evidence
2) Jury assigns percentage of fault to each litigant (no rule on how) 3) Plaintiff's recovery reduced by that percentage |
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What is the difference between pure comparative negligence and modified/partial comparative negligence?
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-Pure: P goes home with some $$, even if he is >50% at fault.
-Modified/partial: If P is > 50% at fault, no recovery |
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Name the three types strict liability claims
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1) Harms caused by (wild) animals
2) abnormally dangerous activities 3) Products liability |
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What is a domesticated animal?
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1) House pets
2) Farm animals |
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What is the standard of liability for harm caused by a domesticated animal?
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Generally, simple negligence reasonable care. HOWEVER, if D has knowledge of animal's vicious propensities, strictly liable for harm unless victim is trespasser on your land.
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What is the standard for liability for harm caused by a wild animal?
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STRICT LIABILITY, regardless of how much care an individual took.
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What is an abnormally dangerous activity?
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Activity
1) creates a foreseeable risk of serious harm even when reasonable care is exercised AND 2) is not a common activity in the place where the defendant engages in it. (eg. blasting, caustic chemicals, anything radioactive) |
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What are the elements of a products liability claims
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1) D was a merchant
2) Product is defective 3) Product has not been altered since it left the defendant's hands (presumed if product moved in ordinary channels of distribution) 4) P must have been making a foreseeable use (or foreseeable misuse) of the product at the time of the injury |
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Can you have a products liability claim and other claims as well?
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Yes. Negligence, implied warranty of merchantability, etc. Pay attention to the cause of action mentioned
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Definiton of a merchant for purposes of products liability cases?
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Anyone who deals with the product of the type in question on a daily basis
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Is a casual/secondary seller a merchant?
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NO
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Are service providers merchants?
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NO
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Are lessors merchants?
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YES, if they are routinely in the business of leasing that product (eg. rental car companies)
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Are resellers merchants?
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YES
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Name the types of product defects
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1) Manufacturing defect
2) Design defect 3) Information defect |
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What is a manufacturing defect?
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Product differs from all the others taht came off the same assembly line in a way that makes it more dangerous than consumers would expect (1: 1,000,000 problem)
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What is a design defect?
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Prodcut could have been built differently.
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Standard for demonstrating a design defect
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Product could have been redesigned.
1) Hypothetical alternative design would be safer than the one that was sold AND 2) HAD would be economical (about the same cost as product in question) AND 3) HAD would be practical |
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What is an information defect?
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Product CANNOT be redesigned AND has residual risks that consumers may not be aware of AND product does not bear an adequate warning.
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Affirmative defenses to product liability cases?
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Comparative responsibility. Any P cockinessor foolishness or unreasonableness reduces their recover as in comparative negligence.
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Describe the standard for a nuisance cliam.
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P's ability to use and enjoy their property has been disrupted to an excessive degree (balance P and D's interest in using their land)
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What mental state is required to support a nuisance claim?
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Irrelevant
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What is vicarious liability?
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Liability imposed on passive party by virtue of a pre-existing relationship with the active tort feasor
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In what relationships may vicarious liability be found?
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1) Employer-employee, if employee committed tort within the scope of employment
2) Independent contractor-hiring party, if independent contractor injures an invitee to the business 3) Principal-agent (eg. owner, driver of car) |
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Can an employer be found vicariously liable for an intentional tort committed by an employee?
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Generally no, but YES IF EXCEPTION APPLIES
1) If job involves use fo force, 2) If job naurally generates friction or tension, 3) If tort committed while trying to serve employer's interest |
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Can a hiring party be found vicariously liable for torts committed by independent contractors?
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Generally speaking, NO, but YES if P is an invitee to the hiring party's business.
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What is the difference between an independent contractor and an employee?
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Who controls the job, who supplies the materials, etc.
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Can an owner of a car be found vicariously liable for torts committed by someoen driving that car?
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NO, unless driver was doing an errand for the owner (aka was an agent of the owner)
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Are parents vicariously liable for the torts of their children?
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No, but they are often the proximate cause, so often there is a negligence claim avaialble directly against them.
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Do you do the vicariously liability analysis if they can be reached directly?
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No. Eg. negligent hiring, negligent entrustment, negligent supervision.
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What is indemnification?
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Out-of-pocket payments must be paid back in full.
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When is indemnity required?
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1) Vicarious liability; principal must indemnify agent
2) Products liability; manufacturer must indemnify reseller |
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What are the elements of a loss of consortium claim?
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????????????
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What is a loss of consortium claim
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Derivative, independent claim by the spouse of an injured party in his or her own name
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What types of damages can a plaintiff recover in a loss of consortium claim?
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1) Loss of services (eg. meals, etc.)
2) Loss of society (eg. I'm lonely) 3) Loss of sex |
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