Torts Ii

Front 1

6 Criteria for Ultrahazerdous activity

Back 1

1) high degree of risk; 2) high likelihood of harm; 3) inability to eliminate the risk by using reasonable care; 4) activity is not of common usage; 5) inappropriateness of the activity to the place it is carried forth; 6) value to the community is balanced to the risk

Front 2

6 Criteria for Products Liability

Back 2

1) recovery by the user/consumer; 2) recovery from the seller; 3) seller is engaged in the business of selling the product; 4) physical harm occurred; 5) the harm was caused by the product; 6) the product is unreasonably dangerous

Front 3

Fraud

Back 3

material representation, which plaintiff relied upon to his detriment, and he suffered damages; must be pled with particularity

Front 4

4 types of fraud

Back 4

1) negligent representation- the person thought they were speaking the truth; 2) willful- knew or should have known; 3) intentional misrepresentation; 4)promissory fraud- do not have to prove intent to do something in the future

Front 5

Private v. Public Nuisance

Back 5

Private- 1) Non-physical trespass; 2) interference with enjoyment of property; Public- 1) government will prosecute; 2) harm to your area has to be above and beyond that which the government is responsible in order for a private individual to recover

Front 6

Defamation

Back 6

1) a false statement, 2) of or concerning the plaintiff, 3) published to at least one third person that can understand it, 4) harm to the plaintiff's reputation which might be presumed or proven

Front 7

Slander

Back 7

spoken; plaintiff must prove damages, unless it falls into one of the 4 slander per se categories

Front 8

4 Categories for slander per se

Back 8

1. Reflecting adversely on the plaintiff’s business or profession (e.g, calling a lawyer a shyster, a doctor a butcher, a military person a coward, a chauffeur a drunkard, - anything that discredits someone professionally);
2. Imputing serious sexual misconduct to the plaintiff;
3. Imputing to plaintiff a crime of moral turpitude;
4. Imputing that plaintiff currently suffers from a foul and loathsome disease (e.g., venereal disease).

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Libel (per se)

Back 9

printed words (includes TV and radio); general damages are presumed; defamatory on its face

Front 10

Libel per quod

Back 10

Not defamatory on its face, additional information is needed to know why the statement is defamatory (who and why); special damages must be proven unless the libelous statement pertains to one of the 4 slander per se categories.

Front 11

Sullivan Malice ("actual malice")

Back 11

knowledge that the statement was false or with reckless disregard of whether the statement was false

Front 12

1) Pubic Figure v. Media D=
2) Public Official v. Media D=
3) PF/PO v. Media D w/out matter of public interest=
4) PF/PO v. Regular D + PI=
5) Reg P v. Media D=
6) PF/PO v. Media D w/out PI=

Back 12

1) Sullivan Malice
2) Sullivan Malice
3) Gray Area- must prove at least negligence
4) Sullivan Malice
5) P can recover for neg. regardless of PI but must prove malice for presumed or punitive damages
6) Regular rules apply

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5 Elements for Malicious Prosecution

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1) Institution of criminal proceedings against plaintiff; 2) Termination favorable to the plaintiff; 3) Absence of probable cause for prosecution; 4) Improper purpose of defendant; and 5) Damages

Front 14

4 Elements for Appropriation of Name or Likeness

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1) Defendant used plaintiff's name or likeness; 2) for the defendant's own purposes or benefits; 3) the plaintiff suffered damages; 4) the damages were caused by the defendant's use of the name or likeness

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3 Guideposts from Gore v. BMW

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1) the degree of reprehensibility of the defendant's misconduct;
2) the disparity between the harm suffered by the plaintiff and the punitive damages awarded; 3) the difference between the punitive damages awarded by the jury and the civil penalties imposed in comparable cases.

Front 16

8 Criteria for Independent Contractor

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1) extent of control the master has over the work; 2) whether the actor is engaged in a distinct occupation or business; 3) whether the type of work is customarily performed under the employer's supervision AND the extent of skill required; 4) who supplied the tools, equipment, and place of work; 5) length of employment; 6) how the person is paid (per job v. hourly); 7) whether the employer is in business and if the work is part of the employer's regular business; 8) whether the parties believe they are employees or indep. contractors

Front 17

4 Elements for a Joint Enterprise

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1) agreement; 2) common purpose; 3) pecuniary interest; 4) equal rights