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119 Cards in this Set
- Front
- Back
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Joint and Several Liability
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When two or tortfeasors are jointly and severally liable each defendant is subject to liability for all of the plaintiff's damages. The plaintiff can obtain a judgment against all defendants and then enforce it against any one of them, or partly against one and partly against another.
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Indivisible Injury
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Definition---If the injury was indivisible, you can only collect ONE full recovery
---Each tortfeasor is liable for the whole judgment. Intentional Torts: If the D's commits a tort with intent and the injuries are indivisible, then they are jointly and severally liable. |
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Settlement
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A legally enforceable agreement in which a claimant agrees not to seek recovery outside the agreement for specified injuries or claims from some or all of the persons who might be liable for those injuries or claims.
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Reduction on percentage fault basis.
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A's Damages $100,000
Minus B's percentage of fault $50,000 Equals C's Liability....$50,000 P's recovery= $75,000 |
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Nominal Damages
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Consists of a small amount of money awarded to the P in order to vindicate rights, make the judgment available as a matter of record in order to prevent the D from acquiring prescriptive rights, and carry a part of the costs of the action.
a. We acknowledge the fact that a wrong has been done but no one is harmed. b. "slap on the wrist" c. The amount of award is unimportant. |
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Non-economic (general damages)
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Non-Economic Losses
---Physical pain and suffering, mental anguish Important---for paid and suffering a person must be conscious in order to get damages Loss of function or appearance Emotional distress Fright and shock Litigation induced stress Loss of enjoyment of life Companionship/ loss of consortium |
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Duty to Mitigate reasonable Factors
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1. Risk
a. Most important factor b. E.g. risk that goes along with the surgery 2. Probability of Success a. E.g. success of surgery 3. Money or effort 4. Pain |
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Punitive Damages
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1.The purpose of punitive damages is to punish and deter the bad guy
2. When punishing the D look to his: a. Ill will b. Bad motive c. malice |
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Who counts as a beneficiary?
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1. Spouses
2. Children 3. Parents a. Some jurisdictions say parents can recover only if no spouse or children 4. Step-children if specifically included in the statute |
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Statutes of Limitations V. Statutes of Repose
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1. A prescribed time period within which a claim or counterclaim must be brought
2. Why do we have statute of limitations? a. Evidence could be lost b. Law changes consistently c. Avoiding exacerbating P's conditions or injuries d. Witnesses dying or disappearing |
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Statute or Repose V. Statute of Limitations
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Statute that begins when the D acts and NOT when the injury occurs...
Applies to: Mostly in products liability Because the statute of repose begins when the D sold the product. |
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Charitable Immunities (Not Immunity)
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A charitable institution is liable for its own negligence and for the negligence of its employees acting within the scope of their employment
2 Theories (on why charities should be immune) Trust Fund Theory--- This money given to these organizations and they shouldn't be used to compensate people because of negligence. Implied Waiver Theory--- If you accept the benefits of the organization you waive your right to file suit. |
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Vicarious Liability
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Holding someone else liable for the acts of another person based off a special relationship (e.g. employer-employee)
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Respondeat Superior (Scope of Employment Elements)
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a. Restatement 2d Agen section 228 (scope of employment)
i. Conduct of a servant is within the scope of employment: 1. It is of the kind he is employed to perform; 2. It occurs substantially within the authorized time and space limits; 3. It is actuated, at least in party, by a purpose to serve the master, and 4. If force is intentionally used by the servant against another, the use of force is not unexpectable by the master a. except in cases such as bouncers, where it's part of their job description, etc. ii. Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master. |
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Non-Delegable Duties
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a. For non-delegable duties YOU ARE ALWAYS going to be responsible and held liable
b. Saying that you will be liable for the negligence of an independent contractor c. But you can delegate the task, but you CAN'T delegate liability i. One who by statute or by administrative regulation is under a duty to provide d. You will be the one "on-the-hook" for the liability, but you could still sue this company. e. Responsibility for a negligent failure remains with the owner. |
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Strict Liability
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Definition:
---liability without fault (you did it now pay) Categories... --Animals *Wild *Livestock *Domestic ---Abnormally Dangerous Activities ---Product liability ---Land |
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Liability for Trespass by livestock
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General Rule
---the possessor of livestock is strictly liable for any intrusion (or damage done to a forseeable party/property) on another's property regardless of the use of utmost care. ---possessor is NOT strictly liable if: *Harm done by animals straying onto abutting land while driven on the highway *Harm brought about by the unexpected operation of a force of nature, action of another animal or intentional, reckless or negligent conduct of a 3rd person. *Fencing in an fencing out statute* |
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Contributing Actions of 3rd Persons, Animal and Forces of Nature
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One carrying on an abnormally dangerous activity is subject to strict liability for the resulting harm although it is caused by the unexpectable (you're still liable if it's a result of the 3)
1. Innocent, negligent, or reckless conduct of a third person OR 2. Action of an animal OR 3. Operation of a force of nature |
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Manufacturer's Defect
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A product has a manufacturer's defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.
---P must prove 402A only |
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Design Defect Defenses (2 Defenses)
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State of the Art Requirement
---General Rule: Requirement that manufacturer uses the best scientific and medical technology that is practically and economically feasible at the time the product was made or marketed. Open and Obvious Danger ---General Rule: The fact that danger is open and obvious does NOT bar a design claim against a defendant |
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Allergic Reactions (Warning Defects)
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General Rule: Warning required when the harm caused ingredient is one to which substantial number of persons are allergic
The more severe the harm, the more justified is a conclusion that the number of persons at risk need not be large to be considered "substantial" so as to require a warning |
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Defamation (Definition)
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A communication is defamatory if it tends so to harm the reputation of another so as to lower him in the estimation of the community or to deter third person from associating or dealing with him.
1. The court determines whether a communication is capable of bearing a particular meaning and whether meaning is defamatory. 2. The jury determines whether a communication, capable of a defamatory meaning, was so understood by its recipient. |
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Libel and Slander
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Libel---Written defamation where the statement made was distributed or communicated in writing.
If the defamatory statement is more persistent and wide spread in nature (e.g. unscripted telecast, ad libbed radio show, or any scripted broadcast, etc.) than it is libel rather than slander. Slander----Spoken defamation |
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Public Official
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---Include all government employees who have substantial responsibility in government affairs. In addition, a governmental employee is a public official if there is a public interest in the qualifications for her position apart from the general public interest in the qualifications of all employees. The Plaintiff is not a public official under New York Times unless she holds a position that "would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy. Former officials and candidates for government positions are included.
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Privileges
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1. Consent
2. Truth 3. Absolute Priveleges---when the defamation concerns statements that are made: a. During judicial proceedings b. By legislators c. By government official in official capacity (executive publications) d. Between spouses e. Reporting political candidates statements in compliance with equal access laws. f. Petitioning Government 4. Qualified Conditional Privileges a. Public Interest Privilege b. Common interest privilege c. Fair comment d. Fair and accurate report of public proceedings ---Abuse of privilege destroys privileges---Malice, Actual Malice, Excessive Publication |
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Public Official/Figure-Public Issue
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1. P must prove falsity
2. P must prove actual Malice by CCE 3. Privileges? 4. Actual, Presumed, and Punitive Damages |
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Is it Public Issue?
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Does this concern me?
Is subject hotly debated? How is it communicated is it published to the masses? |
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Duty to Disclose--
5 reasons a party to a business transaction has the duty. |
A party to a business transaction has a duty to disclose:
1. When there is a fiduciary relationship a. Relationship of trust between one another Confidence on one side dominance on the other. 2. Matters known to him when it is necessary to prevent his partial or ambiguous statements of the facts that he knows will make untrue previous misrepresentations that were true or believed to be true at the time he made them. 4. When he learns that a false representation not made in the belief it would be acted upon will be relied upon by the other party. 5. Facts basic to the transaction---if he knows the other party is about to enter a transaction under a mistake as to them and where the other because of the relationship would expect a disclosure of those facts. |
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Negligent Misrepresentation---
Requirements for there to be a duty to give correct information: |
1. Required for a serious purpose
2. Person intends to rely and act upon it. 3. P must rely on representation 4. If false or erroneous, he will be injured in person or property. |
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Reliance---definition
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Cannot justifiably rely on something that is a known falsehood.
Materially: cannot justifiably rely on something that is not material to the transaction |
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Misrepresentation of Intention---definition
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A representation of the maker's own intention to do or not to do a particular thing is fraudulent if he does not have that intention.
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Damages for Innocent Misrepresentation
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Get rescission of the K, rather than damages
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Unreasonable intrusion upon the seclusion of another---definition
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To physically intrude in the solitude of another, or his private affairs. There must have been a reasonable expectation of privacy.
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Post Sale Duty to Recall
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Generally there is no duty to recall
Unless the maker undertakes to recall the product and then fails to carry out the recall in a reasonable way. |
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Goods and Services
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*A product is tangible personal property distributed commercially for use or consumption
---Electricity---not a product until it passes through the meter ----Info----generally not a product. ----Maps & Charts: Should be considered a product. Books---not a product because it is information |
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Joint and Several Liability (Traditional Rules)
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Apportionment required
Indivisible Injury Actions in concert, vicarious liability Contribution |
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Contribution Vs. Indemnity
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Contribution: Third Party action brought by D in order to get his/her fair share from another negligent party
---D wants D1 to pay his fair share. Indemnity: Also a third party action brought by D, where D seeks full reimbursement from the other negligent party rather than just their fair share. ---D wants D1 to pay FULL reimbursement |
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Calculations for Partial Satisfaction
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A's total damages 100
B's percentage fault 50 C's percentage fault 50 B settles for 25 1. Pro tanto/dollar credit rule Simple subtraction (100-25 = C paying 75) non-settling D has to pay the rest of the settlement 2. pro-rata Place a cap on C's liability (25 + C's 50 = A only gets 75) 3. Percentages |
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Damages (types)
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*Nominal---to vindicate rights
*Compensatory---Financial equivalent to loss (intended to make P whole) 2 types of compensatory damages Special Damages (economic losses) General Damages (non-economic losses) *Punitive---Punishment and deterrent |
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Compensatory Damages (Personal Injuries) 5 Factors
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1. Past physical and mental pain.
2. Future physical and mental pain 3. Future medical expenses 4. Loss of earning capacity 5. Permanent disability and disfigurement |
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Remittitur and Additur
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1. Remitter
---Grant of a motion for a new trial on the issue of damages conditioned upon the P's refusal to accept a lesser amount. 2. Additure ---Grant of a motion for a new trial on the issue of damages conditioned upon the D's refusal to pay a larger amount set by the Court. |
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Collateral Source Rule Exceptions (when evidence under this rule is admissible)
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Evidence of Gratuities is admissible in any one of the following situations:
a. To rebut the P's testimony that he was compelled by financial necessity to return to work prematurely or to forego additional medical care. b. To show that the P had attributed his condition to some other cause, such as sickness c. To impeach the P's testimony that he had paid his medical expenses himself. d. To show P had actually continued to work instead of being out of work, as claimed. |
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Wrongful Death and Survival
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Wrongful Death: use pecuniary losses
---wrongful death claim is distinguished from survival claims: 2 entirely separate claims. *Wrongful death claims, the beneficiary brings the claim ---Claim where family members bring suit for damages against D ---Based on the reasoning that family should be compensated by pecuniary losses---can only recover when you have pecuniary losses *Methods of calculating pec ---Creditors cannot touch wrongful death claims, it goes to your beneficiary not through your estate vs. survival claim creditors CAN get to your claims. |
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Survival Claim V. Wrongful Death Claim
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Wrongful death claim involves pecuniary losses after death
1. Survival claim accounts for losses incurred from the time the tort occurred until death. 2. Carrying on of a claim that decedent would have been able to bring had he/she still been alive. |
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Discovery Rule (statute of limitations)
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1. All the elements of the tort are present
2. P discovers, or as a reasonable person should have discovered: a. That she is injured and b. That the D/D's product had a causal role in that injury or there was enough chance that D was connected with the injury to require further investigation that in turn would have revealed D's connection. i. If reasonable minds could differ then the jury is to decide ii. If there is no way a jury could decide otherwise, then the court will decide (to see if a reasonable person would have discovered it) |
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Spousal Immunities (NOT IMMUNE)
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1. A husband and wife are not immune from tort liability to the other solely by reason of the relationship
2. Some jurisdictions have abolished in part: intentional torts/auto negligence/ and other specific types of actions. |
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Governmental---State and Local Immunities: Public Duty Doctrine
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GR: Police and the state owe a duty to the public at large and not to one specific person.
Exceptions: The state and local government does owe a duty to a specific person when.... 1. creation of peril 2. Have a special relationship 3. Statutes or laws 4. Assumption/promise or conduct |
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Respondeat Superior (Definition)
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Employer/employee relationship triggers this duty; employer can be liable for torts committed by the employee
Why? 1. More financially reliable 2. Employer is benefitting from employee's tort. 3. Employer is in control of employee. |
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Respondeat Superior (Going and coming rule)
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a. General Rule---Employer is not liable for torts occurring during the employee's commute to and from work.
ii. Exception: 1. Unless during the drive home, she is impaired because of some action/inaction by the employer *Foreseeability Test: Was the employee's conduct so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of employee's business? |
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Bailments
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1. Giving someone possession of something, but not title.
2. The common law rule on bailment is that the owner will be held liable for the bailee's tortious conduct Family purpose doctrine: e.g. if you let your friend or family member drive your car and they crash into a school bus, you are liable for letting them drive. |
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Wild V. Domestic (strict liability for animals)
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Definition of Domestic Animal
---An animal that is by custom devoted to the service of mankind at the time and in the place in which it is kept. Def of Wild Animal --An animal that is not by custom devoted to the service of mankind at the time and in the place in which it is kept. What to look for... --Location-custom-severity of harm---propensities of the animal |
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Abnormally Dangerous activities factors
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In determining whether an activity is abnormally dangerous, the following factors are to be considered:
1. Existence of a high degree of risk of some harm to the person, land or chattels of others. 2. Likelihood that the harm that results from it will be great 3. Inability to eliminate the risk by the exercise of reasonable care 4. Extent to which the activity is not a matter of common usage 5. Inappropriateness of the activity to the place where it is carried on 6. Extent to which its value to the community is outweighed by its dangerous attributes *all are not necessary to have a dangerous activity |
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2 types of implied Warranties
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1. Implied warranty of merchantability
a. product should work for the intended use you bought it for b. a good is supposed to be fit for the purpose it is sold i. ie. coffee pots, sold for the purpose of making coffee (and if it explodes in your face) 2. Implied warranty of fitness a. warranty that promises the product is fit for its intended purposes i. ie. if you want to use the coffee pot for tea, soup |
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Design Defect
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A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe...
P must prove: 1. 402A, AND 2. Wade factors |
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Warning Defect
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A product is defective because of inadequate instructions or warnings when the foreseeable risks of ham posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller, etc. P must prove:
1. 402A 2. Warning was not display in a way as to reasonably catch the user's attention 3. The warning did not fairly apprise the reasonable user of the nature and extent of the danger, AND 4. The warning did not instruct how to avoid the danger 5. Foreseeable risks could have been reduced or eliminated by reasonable warnings/instructions 6. Presume that if warning was included, it would have been read and heeded. |
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Learned Intermediary Rule (Warning Defect Exceptions)
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General Rule: A prescription drug manufacturer's warning to the dr. who prescribes a drug is sufficient to warn the dr.'s patients as well; if the dr. fails to inform the patient of the risks, the patient has a claim against the dr., NOT the mfr of the drug
Exceptions: 1. Mass inoculations and other instances of unsupervised dispensation of prescription drugs 2. Birth control prescriptions and devices 3. It has also been argued that when prescription drugs are advertised directly to the consumer, direct warnings to the consumer should be given in the same medium |
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Defamation Of and Concerning P (Colloquium)
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1. Don't have to be right in the determination that it is about P belief just has to be reasonable (Colloquium)
2. Don't have to specifically name P can be circumstantial 3. Defaming Groups a. Large----NO i. Unless Specific person identified b. small---Yes |
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Slander Per Se
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Clear on its face so does not have to prove special damages----
One who publishes matter defamatory to another in such a manner as to make the publication a slander is subject to liability to the other although no special harm results if the publication imputes to the other: (a) A criminal offense, or (b) A loathsome disease, or (c) Conduct that would adversely effect one's business, or profession or (d) Serious sexual misconduct |
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Limited Purpose Public Figures
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Most public figures are limited purpose public figures. They are public figures only with respect to some particular controversy or set of events. To prove the P is a limited purpose public figure, the D must ordinarily show that the P voluntarily thrust herself into a public controversy or at least was drawn into it and attempted to influence its outcome.
*The fact that the P is newsworthy is not enough: ---Must be a preexisting public controversy ---The P injected herself into the controversy by voluntary action. AKA Vortex Thruster |
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Remedies
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Damages: A successful defamation P may recover compensatory damages. These can include not only items of pecuniary loss (ie. lost business) but also compensation for humiliation, lost friendship, illness, etc., even though these items would not count as special harm for purposes of slander.
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Private Figure----Private Issue
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1. P must prove falsity
2. P must prove Negligence 3. Privileges? 4. Actual Damages? 5. Presumed Damages without malice 6. Punitive Damages under C.L. don't need actual malice a. C.L. Malice i. ill will ii. Bad Motive |
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Defamation of a corporation
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*One who publishes defamatory matter concerning a corporation is subject to liability if:
---The corporation is one for profit, and the matter tends to prejudice it in the conduct of its business or to deter others from dealing with it. ---If not for profit it depends upon financial support from public and the matter tends to interfere with its activities by prejudicing it in public estimation. |
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Fraudulent Misrepresentation
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Must Show:
1. An intentional misrepresentation (scienter) 2. Of fact or opinion 3. That is material 4. Intended to induce this person 5. Does induce justifiable reliance 6. Causes P harm 7. P has to prove claim with particularity.---have to be very specific to allege each one of these elements. |
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Third Parties---definition
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When you can be held liable for harm caused to a third party as opposed to someone whom you had direct dealings with.
Example: Insurance Companies |
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When are opinions actionable?
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Reliance on opinions based on trust.
Ex. Lawyer regarding opinion of law given to laypersonfor whom he is dealing. ---Yes, because of superior knowledge and expertise |
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Damages for Fraudulent misrepresentation
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Allows Plaintiff to pick recovery based on what they can prove---out of pocket or benefit of the bargain.
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Workers compensations---definition
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1. Provides shield to an employer as an exclusive remedy.
2. Purpose it to insure P recovery without having to show fault. 3. Can still sue a third party non immune tort feasor, even though you can't sue the employer. a. ie. manufacturer of a machine with a design defect. |
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An unreasonable publicity given to the other's private life--definition
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A person who gives publicity to a matter concerning the private life of another if it were:
1. Highly offensive to the RPP; AND 2. Is not of legitimate public concern |
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Defenses
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*Misus
*Comparative Fault *Assumption of Risk *Preemption/Other government Actions ---When state and federal law conflict Federal law trumps or local law. Express---On its face in the statute Implied---Look to Statutory Intent |
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Joint Enterprise (4 Elements)
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Four elements essential to joint enterprise:
a. an agreement, express or implied, among the members of the group b. A common purpose to be carried out by the group c. A community of pecuniary interest in that purpose, among the members, and D. An equal right to a voice in the direction of the enterprise which gives an equal right of control. |
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Actions in concert, vicarious liability
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a. Encouraging, aiding, participating, etc.
b. All participants are acting together in the negligent act to create a situation where great risk was involved c. Don't need to aid the person; encouragement is sufficient to prove that the Ds were acting in conert d. All are liable |
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Partial satisfaction of judgment
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*A Plaintiff sustains an indivisible injury due to B & C's negligence
*A's total damages are $100,000. *B & C are both 50% at fault *B settles for $25,000. |
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Reduction by percentage of fault
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Assume B settles for $75,000
A's damages $100,000 B's percentage fault $50,000 C's liability $50,000 A recovers $125,000 |
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Compensatory Damages (personal injuries)
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Damages sought to restore the P to rightful position using money as a substitute for paid and suffering.
---Awarded for both pecuniary and non-pecuniary losses *economic loss *non-economic loss ---Usually the most common form of damages awarded in torts. ---Compensatory damages are not taxable. |
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Special Damage (Exposure to toxic substance)
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1. to get compensation for fear of disease you must prove:
a. Exposure was proximate cause b. Expert testimony c. Fear must be reasonable d. More likely than not to contract disease 2. To recover for medical monitoring if you can prove: a. Evidence that it will prevent or stop disease b. Significant risk C. Have to find something d. Medical monitoring will lessen harm caused |
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Collateral Source Rule (when evidence under this rule is NOT admissible)
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---collateral source rule is an exclusionary rule which prohibits evidence providing P received gifts or gratuities in treatment to lessen D's damages
---Gratuitous or discounted medical services are a collateral source not to be considered in assessing the damages due to P for personal injury. |
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Punitive Damages Guidepost
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1. reprehensibility: only the reprehensible conduct that is closely related to P's particular harm
a. isolated event or repeated b. intentional or malicious c. how harmful d. ill will or bad motive 2. ratio between compensatory damages and punitive damages a. multipliers <10 is more likely to comport with due process b. Courts can take into account the wealth of the D 3. Compare and contrast the punitive damage award with civil penalties in similar cases |
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Joint Life Expectancy
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1. What is the life expectancy of the beneficiary
a. Also, looks at the life expectancy of the beneficiary b. Takes the shorter of the two |
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2 possibilities when the statute starts running (statues of limitations)
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1. accrual rule
2. discovery rule a. Statute of limitation begins when P discovers or reasonably should have discovered the injury. |
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Immunities from tort liability
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1. Spousal Immunities
2. Parent-child immunities 3. Charitable Immunities 4. Governmental---state and local 5. Governmental---federal |
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Governmental---State and Local Immunities
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1. Local
a. A local governmental entity is immune form tort liability for acts and omissions constituin i. The exercise of a legislative or judicial function, and ii. The exercise of an administrative function involving the determination of fundamental governmental policy 2. State a. A state and its governmental agencies are normally immune from tort liability unless the state waives their immunity b. And if a state is subject to liability they are still immune for i. and ii. above |
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Vicarious liability (types)
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1. Respondeat superior
2. Independent Contractor 3. Joint Enterprise 4. Bailments |
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Respondeat Superior (slight or substantial deviation)
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a. Slight or substantial deviation:
i. employee's intent ii. Nature, time, and place of deviation iii. time consumed in the deviation iv. Work for which the employee was hired v. Incidental acts reasonably expected by employer vi. Freedom allowed the employee in performing his job responsibilities *Criminal and Tortious Acts: An act may be within the scope of employment although consciously criminal or tortious |
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Apparent Authority
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If an independent contractor can reasonably be mistaken for a normal employee due to the similarities in his work and that of normal employees,, then he will be held vicariously liable.
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Strict liability for animals (3 types of animals)
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1. Livestock
2. Wild 3. Domestic |
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Ryland Rule (strict liability)
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Strict liability for non-natural uses of land
D will be liable when he damages another by a thing or activity that is dangerous and inappropriate to the place where it is maintained, in the light of the character of that place and its surroundings. |
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Products liability
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Definitions: liability for defective products that are sold on the market.
Issue/Question: when should we hold companies liable for harm caused by defective products? |
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Manufacturing defects in food (two tests)
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Two tests to determine whether a manufacturing defect in food exists:
1. Foreign/natural distinction a. Some jurisdictions allow SL only if defect is "foreign" to the ingredients in the food product b. However, doesn't allow SL for ingredients such as a nutshell in a product with nuts 2. Consumer Expectations (3rd Restatement test) a. Would the reasonable consumer expect to find this particular ingredient in the food product? b. Would allow SL for the shell because reasonable consumer would not reasonably expect to find it in a product with nuts |
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Design defects in drugs and medical devices
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General rule for drugs: Prescription drugs are NOT defective in design as long as the drugs would be sufficiently therapeutic for any class of patient to prompt a reasonably health provider, knowing of its foreseeable risks and benefits, to prescribe the drug.
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Warning defect exceptions
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1. Open and obvious dangers
a. most jurisdictions say no duty to warn of obvious dangers or risks that are generally known 2. Sophisticated users a. If one is a sophisticated user of the dangerous product and should reasonably know about a risk of harm, then the manufacturer is not liable to him for harm that results. 3. Learned intermediary rule |
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Defamation flow chart...
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1. Defamatory meaning
2. Of and Concerning P (Colloquium) 3. Publication 4. Libel and Slander a. Slander Per Se b. Slander Per Quod i.Must prove Special Damages ii. No Damages no claim 5. Status a. Public/Public b. Private/Public c. Private/Private |
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Libel Per Se
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Any publication which exposes a person to distrust, hatred, ridicule, obloquy, or which has a tendency to injure such person in his office, occupation, business or employment.
The publication must be false, not privileged, and the proximate cause of injury to a person in his personal, social life, etc... |
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All purpose public figure
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*Pervasive power and influence
*General fame or notoriety is known within the community *Pervasive involvement in the affairs of society Examples: Political candidates, major corporations, writers, columnists, religious figures |
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Types of interests protected under conditional privilege
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Protection of publishers interest
Protection of interest of recipient or third person Common interest Family relationships Communication to one may act in public interest Report of official proceeding or public meeting |
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Private figure, public issue
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1. P must prove falsity
2. P must prove at least negligence 3. Priveleges? 4. Actual damages 5. Presumed & Punitive damages if Actual Malice is proven |
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Fact or Opinion
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If it is an opinion you can't bring defamation claim look to language
I think In my opinion, etc... |
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Materially---definition
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A matter is material if it is one to which a reasonable man would attach importance in determining his choice of action in the transaction in question, OR
If the maker of the representation knows or has reason to know that its recipient regards or is likely to regard the matter as important in determining his choice of action, although a reasonable man would not so regard it. |
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Innocent misrepresentation
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1. Typically deals with the recission of a K
2. Typically courts do not allow for damages under Innocent Misrepresentation. |
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opinions----definitions
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A representation is one of opinions if it expresses only:
1. The belief of the maker, without certainty, as to the existence of the fact; OR 2. His judgment as to quality, value, authenticity, or other matters of judgment. |
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Damages---definitions of Benefit of the Bargain and Out of Pocket loss
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Benefit of the bargain: to compensate the P as if the transaction was carried out as planned.
Out of Pocket loss: to put the P in the same place as he was before the transaction. |
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Alternative Compensation System....definition and exception
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Allows workers to recover for injury from employer without having to prove any employer fault.
Exception: If you fall outside of the workers comp box, employer must have purpose or desire to injure the employee (intentional tort). |
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Appropriation of the other's name or likeness---definition
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A person uses another's name or likeness for his own benefit.
*Note: If it is connected to a newsworthy issue, there is no liability. *Note 2: this is the only exception to the living requirement of invasion of privacy; you can't bring a survival claim under invasion of privacy unless it is in the name or likeness; for example: MLK or Elvis |
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Proof of Defect
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Circumstantial evidence can be used to prove a manufacture defect as long as it is proven by a preponderance of the evidence. More likely than not...
Res Ipsa 1. This is something that normally doesn't happen absent a product defect. 2. Was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution |
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Apportionment Required
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Apportionment is required if the harm done by two or more tortfeasors were separable or divisible as where A caused the P's broken arm and B caused the P's broken leg.
Exceptions: 1. Concerted action, and 2. Vicarious liability |
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Satisfaction Vs. Release Covenant Not to Sue
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Satisfaction: Full recovery of damages from harm; can only recover once.
Release: P surrenders claim; P no longer has the right to bring a claim; releases EVERY party from liability Covenant Not to Sue: Plaintiff is not surrendering their claim, they are just waiving their right to sue this particular party |
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Pro Tanto or Dollar Credit Rule
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How damages are given in joint tort feasors cases with joint and several liability.
A's Damages $100,000 Minus B's settlement $25,000 Equals C's liability $75,000 |
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Maximum Recovery Rule
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The judge has to review the evidence and using his knowledge to determine if the amount is sufficient.
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Economic Loss
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*Time losses (lost wages and earning capacity)
*Expenses incurred by reason of the injury (Past &/or Future medical cost) |
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Duty to Mitigate (Doctrine of Avoidable Consequences)
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Does not allow recovery of those damages that P could have avoided by reasonable conduct on the part of the Plaintiff after a legal wrong has been committed by D.
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Physical Harm to Property
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3 Standards
1. Standard of Value a. Fair Market value of property at the time of the tort 2. Highest replacement value rule. a. The highest value which P could have sold/replaced it for between the time of the tort and a reasonable time afterwards (not necessarily the fair market value) 3. Rule of highest and intermediate value a. Highest value which the property has reached during the period from the time of the tort until the trial |
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3 Calculation methods for Pecuniary Loss
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1. Loss to dependence
2. Loss to estate 3. Loss inheritance *Only use 1 of these methods not all |
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Survival Claim
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General Rule...
1. When you are alive and the tort happened before your death and after your death the tort carries over and the executor can claim... Exception... 1. Defamation, if there was defamation to a dead person, then you can't bring survival claim |
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Continuing Negligence
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---If you are receiving constant treatment from someone,if the physician does something wrong, the statute of limitation does not begin running until after the treatment is done being administered
---Because there exists a relationship between P and the physician where P should reasonably expect the physician to correct the condition. |
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Parent-Child immunities
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1. Children who are the age of majority can sue parents for torts.
2. Children who are the age of Minority Can Not sue parents for torts. |
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Governmental Federal Immunities
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GR:
1. A government and its governmental agencies are normally immune from tort liability unless the govt. waives their immunity 2. State provisions give the requisite consent to suit and liability for may types of tortuous conduct. 3. There are no punitive damages against the federal Government. Discretionary Function.... 1. Shields the government from liability based on discretionary function or duty a. E.g. when the US rangers were allowed to use their own judgment the US govt. was Not liable for their actions b. Exceptions: when the ranger is committing some kind of statutory or constitutional violation |
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Respondeat Superior (exam analysis: Questions to ask)
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1. Does an employer-employee relationship exist?
a. Is it an independent contractor? b. Does he/she have apparent authority? 2. Was that employee acting within the scope of their employment? 3. What type of deviation was made? (frolic or detour?) a. Slight or substantial? 4. Do any exceptions to the general rule apply? |
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Independent Contractors
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One who engaged to perform a certain service for another according to his own methods and manner.
Test for determining whether a person is an employee or an independent contractor: 1. The right to control the physical details of the work. 2. If the individual has the right, then he is an independent contractor. 3. If no right, he is an employee. |
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Mary carter Agreements
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--agreement between P and settling Ds to share a properion of the settlement and be paid back for it after trial in return for Ds participation gin the trial and helping P to win against the D who did not join in this agreement.
--generally done in secrecy. |
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Liability of Possessor of Wild Animals
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General Rule
---A possessor of a wild animal or an animal with dangerous propensities is STRICTLY liable for ANY harm done to a person or chattels or land even if he used the UTMOST care ---Possessor is still strictly liable even if the harm results from: *Innocent, negligent, or reckless conduct of a 3d person OR *Action of another animal OR *Operation of a force of nature |
