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38 Cards in this Set

  • Front
  • Back
Questions to ask to determine if an employer is vicariously liable
1. Was a tort committed?
2. By an employee or an independant contractor
ee- was activity within the scope of his employment
and for the employer's benefit? Y-VL. N-argue
Minor deviation/Detour for Y; Horseplay/Frolic
for N.
IC- not liable unless exception.
What factors determine the person is an employee (versus an independant contractor)?
Tortfeasor was performing services, was under the control of employer, had exclusive control over area, was paid by the hour or annually.
What factors determine the person is an independant contractor (versus an employee)?
highly skilled, was involved in a different type of business that person paying him, payment by the job- not by hr.
What exceptions make an employer liable for an independant contractor?
negligent hiring (employer knew IC was unsafe/unskilled), non-delegable duty, act creates a nuisance or is illegal, intrinsically dangerous work, or act would cause probable injury without special precautions that were not taken.
What are elements of horseplay?
abandonment of duty, what extent actions are accepted at work, risk of injury involved in act
What is frolic?
significant detour
What is detour?
minor deviation, expected in course of duties
Scope of employment
Activity you are hired to do
Traveling- if being paid for travel, it is in scope.
Special errand- is in scope
Going and Coming rule- not in scope of employment
when going or coming to work.
Types of Product Liability
1. Negligence
2. Strict Liability
a. manufacturing defect
b. design defect
c. failure to warn
3. Breach of
a. express warrenty
b. Implied warrenty of merchantibility
c. Implied warrenty of fitness for particular purpose
Elements to prove negligent product liability
1. duty owed (duty of care to all foreseeable users)
2. duty breached
3. breach caused injury
4. P suffered damage
OR res ipsa loquiter- thing speaks for itself
Elements of strict product liability
1. D is manufacturer or supplier of product
2. Product contained defect in manufacture, design or
warning
3. Defect existed when it left D's possession
4. Defect was the cause of injury to P
5. P's injury was from use of product that was reasonably forseeable
What is a (Strict liability) manufacturing defect?
did the product differ from other identical units, or from manufacturer's intent?
What is a (Strict liability) design defect?
1. Product fails to perform safely as an ordinary
consumer would expect when used in intended or
reasonably foreseeable manner
2. risk inherent in the design outweighs product benefit
(gravity of danger caused, feasibility of safer,alt.
design)
What is a (strict liability) warning defect?
Reasonably foreseeable use of product could result in substantial danger not readily recognized by ordinary consumer, and manufacturer knows or should have known and did not warn.
Defense to strict products liability
Comparative fault- negligence by P. Only reduces damages by percent he was at fault for.
Breach of Express Warrenty
1. D's product did not conform to explicit promises AND
2. P relied to his detriment upon this warrenty
(provide copy of literature relied on in electing to
purchase D's product)
Breach of implied warrenty of merchantibility
for merchants only
fit for ordinary purpose
fair/average quality
pass without objection by others in trade
Breach of Implied Warrenty of Fitness for Particular Purpose
1. where seller has reason to know particular purpose goods are required for
2. buyer relies on seller's skill or judgment to select or furnish suitable goods
3. implied warrenty exists unless excluded or modified.
Nuisance
Intentional invasion of another's right to use or enjoy land, that is substantial (some signifigant injury/more thna what is reasonably expected to be tolerated; normal people would consider it an offensive invasion) and unreasonable.
Defense to Nuisance
Nuisance was there first
Assumption of risk or contributory negligence
Public nuisance
interferes with rights common to general public
(health- water pollution; saftey- visious dog; morals- crack house; peace- figthing/lous music...)
Defamation
false (presumed false; D must prove they are true as
ultimate defense)
defamatory statements (tend to injure reputation)
publicized to 3rd party w/o privlage who understand defamatory meaning
Damages for defamation
compensatory- if P proves actual harm
special damages- if statement involved crime of moral turpitude/loathesome disease, business inadaquacy, etc.
Defamation: Public person- public matter
Public person- inject self into public eye and opinion

P must prove actual malice (D's knowledge of falsity or reckless disregard for truth)
Defamation: Private person/Private matter
Strict liabilty; truth is defense/D must prove.
Defamation: Private person/public matter
P must prove statement is false, and that D acted with negligence.
Misuse of Legal Process:
Elements of Malicious Prosecution in Criminal or Civil Proceedings
1. intentionally and maliciously instituting a criminal
proceeding (malice: improper motive)
2. brought without probable cause (P lacked reasonable
belief; charged where reasonable person would
investigate more)
3. dismissed in favor of victim of the prosecution
4. D suffered injury or damage (emotional distress,
humiliation, reputation, costs to defend)
(5. minority special injury requirement for Civil- caused by seizure of person or property)
Abuse of Process
1. Process used (court order, etc)
2. for an ulterior purpose for which process was not
designated
3. resulting in damages
Civil Rights: Monrose Requirements
1. Person (does not included state itself, but a person,
city, county or gvmt entities)
2. acting under color of state law (doesn't have to be
actually sanctioned/permitted- ex: unconstitutional
police seach)
3. deprives another of rights, privlages, and immunities secured by federal law or constitution.
Intentional Misrepresentation
1. Concealment/false represenation of a material fact
OR Failure to disclose material fact
EX: D never intended to keep promise at time it was
made.
2. Scienter (intent): knowledge of falsity OR reckless
disregard and intent to deceive.
3. Intend representation to be acted on
4. Actual and justifiable reliance
5. Causation and damages
Negligent Misrepresenation
1. D made false representation to P
2. D had a pecuniary interest in making statement
3. D owed a duty to communicate truthful info
4. D breached duty by failing to exercise due care
5. P actually, justifiably and reasonably relied on
represenation
6. P suffered pecuinary loss as a proximate result
Misrepresentation Exceptions
Expression of opinions- unless known to be false when
made OR unless opinion relates to a material fact.
Representations of future events- unless known to be
false at time it is made.
Concealment
knowing and deliberate failure to disclose where duty exists.
Damages for Misrepresentations
Out of pocket: value of benefit D gave - value of benefit received + consequential loss (fraud by buyer)

benefit of bargain: value promised - value received + consequential loss (fraud by seller)
Interference w contractual relations
1. Knows K exists
2. Intentionally (motive, interest sought to advance)
3. interferes w performance
4. by causing a party not to perform
5. resulting in pecuniary loss
Interference with prospective relationships
1. intentionally and improperly (TX-independantly
tortious)
2. interferes w another's prospective relationship
3. by inducing or preventing 3p to not enter or continue
4. resulting in pecuniary damages
Privacy: Right of Publicity
Protects right of Celebrity to enjoy and control benefits of their fame (labor created persona); exclusive right to license use of their name and face- property rt.
Wendy elements:
1. D uses P identity
2. for own advantage
3. lack of consent
4. resulting injury
Privacy: Misappropriation
Same as right of publicity, but as a privacy tort.