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77 Cards in this Set
- Front
- Back
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What are the prima facie elements of an intentional tort?
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1. an act by D
2. intent (general, specific, transfered) 3. causation |
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True/False: A battery can be committed when on party slips and falls into another.
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False. There would be no volitional act so we cannot say that the person intended harm to the one she fell on
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True/False: A verbal threat can be an assaut.
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False. There must be overt physical conduct.
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What is this: "If you weren't my friend, I would stab you in the neck"
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Nothing. Conditional/subjunctive words eliminate apprehension.
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What are the elements of intentional infliction of emotional distress?
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1. D intentionally wants to upset P (reckless behavior is good enough)
2. Outrageous conduct by D 3. P suffers severe emotional distress |
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True/False: Saying something mean and nasty to a person that you know is extremely sensitive makes you liable for intentional infliction of emotional distress.
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False. There must be some MAJOR OUTRAGE.
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What is outrageous conduct?
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Conduct that exceeds sall bounds of decency tolerated in a civilized society
1. continuous in nature 2. directect at a certain type of P (children, elderly, pregnant) 3. committed by a certain D (common carrier or inn keeper) |
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Can D be liable to bystanders for intentional infliction of emotional distress?
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Yes. P must show the prima facie elements of IIED, or that 1. she was present when the injury occurred, 2. she is a close relative to the injured person, and 3. D knows facts 1 and 2.
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When would a trespass not be a trespass? (hing: rocket ships)
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If you have no reason to know your act will bring about a physical invasion, there is no intent.
Ex. Rocket tests sends debris onto property 50 miles away. |
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What are the two types of interference for trespass to chattels?
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1. intermeddling (directly damaging chattel) and
2. disposition (depriving P of lawful right to possession) |
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List the intentional torts (6)
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1. battery
2. assault 3. IIED 4. trespass to land 5. trespass to chattel 6. conversion |
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List the acts of conversion
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1. wrongful acquisition (theft)
2. wrongful transfer 3. wrongful detention 4. substantially changing, damaging, or misusing |
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What is implied consent for intentional torts?
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Apparent consent that which a reasonable person would infer from custom and usage or P's conduct
D's reasonable interpretation of P's objective conduct |
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Who cannot consent?
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Those without capacity.
However, minors acquire capacity to different kinds of invasions and conduct at different ages (ex. tackle football) |
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MBE law - Is there a duty to retreat before using any force?
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Not unless you plan to use life threatening force and even then, only if it can be done safely
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Can you use force to protect property?
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Yes and hot pursuit is permitted (purse snatcher) but you cannot use deadly force to protect property.
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Explain how mistake interplays with the privilege of force.
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Reasonable mistakes are permitted as to the existence of danger and whether an intrusion has occurred.
Mistakes are not allowed as to whether an entrant has a privilege (necessity) |
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Are you liable for nominal damages in the exercise of private necessity privilege?
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No and you can't get punitive either. You only have to pay for actual harm done.
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When can you use force to re-enter land that another person came into possession tortiously?
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Only under common law.
Not under modern law (no self-help) |
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Explain privilege as it relates to recapture of chattels.
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You can enter the land of the wrongdoer or innocent party at a reasonable time in a reasonable manner if you provide notice.
You cannot enter land if if the chattel is on their property through your own fault (frisbe on roof) |
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What are the elements of defamation?
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1. D makes a statement of fact that is defamatory and specifically identifies P
2. D publishes the statement 3. Damages may be required depending on the subdivision |
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What is a defamatory statement?
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A statement of fact that tends to injur the reputation of P.
Traits include honesty, peacableness, loyalty, morality (sexual) and others Mere insults are not defamatory |
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Must P be alive for there to be a defamation?
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Yes
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True/False: Publication of a defamatory statement must be intentional
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False. it can be negligent or intentional.
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What are the subdivisions of defamation?
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Libel (recorded defamation)
Slander (spoken defamation) |
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What must you prove damages for a defamation case?
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Only for slander not per se
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What are the categories of slander?
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1. slander per se - damaging statements about: business/profession, crime of moral turpitude (sex abuse), imputing chastity of a woman, loathsome disease
2. Slander not per se |
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True/False: You must prove damages in a case for libel
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False. Only for slander not per se.
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True/False: Emotional distress does not constitute damages, social consequences are not sufficient.
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True. You must establish some ECONOMIC loss like you got fired, lost out on a K, or business volume is down.
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List the categories for slander per se
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1. business or profession
2. crime of moral turpitude - sexual abuse 3. imputing unchastely to a woman (P had sex w/ her BF last night) 4. loathsome disease (leprosy or VD) |
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What is this: I announce to at a college reunion - Erik has herpes.
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Defamation - slander per se b/c its a loathsome disease
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What are the affirmative defenses to an action for defamation?
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1. Consent
2. Truth 3. Privilege |
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What are two types of privilege in a defamation action?
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Absolute - based on status of D
Qualified - based on occasion or circumstance of speech |
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What are the two scenarios in which you can raise an absolute privilege to defamation?
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1. spouses
2. the 3 branches of gov't while engaged in their duties |
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What are the circumstances in which a qualified privilege arises for defamation?
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The speech is socially useful (letter of rec, job reference, statement made to police during invesetigation)
D must 1. speak in good faith with a reasonable basis for the statement and 2. confine himeslf to matters relevant to the purpose at hand 2. |
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What if the defamation is regarding a public concern?
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We apply additional rules to defamation:
1. P must prove falsity 2. P must prove fault |
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What are the standards of fault for defamation of a matter that's a public concern?
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Public Figure - must prove malice - knowledge the statement is false or reckless disregard as to whether its false
Private Figure - fault is established by negligence - failing to act as a reasonable person would in verifying the statement |
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List the invasion of privacy torts:
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FAID
1. false light 2. appropriation 3. intrusion 4. disclosure |
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What are the elements of false light?
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1. widespread dissemination (more than mere publication)
2. material falsehood (either defamatory or not defamatory) 3. that would be objectionable to the average person |
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True/False: P can sue for both defamation and false light.
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True. Defamation would allow recovery for economic harm (fired from job. False light would allow you to recover for social and emotional harm.
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True/False: False light is an intentional tort.
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False. D is liable for false light even if D had a reasonable belief that the information is accurate.
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True/False: Appropriate requires that D have earned a profit.
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FALSE
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What is intrusion?
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an invasion by D of P's seclusion in a way that would be objectionable to the average person (ex. wire tap, peeping tom) while P was in a place with a reasonable expection of privacy
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What is public disclosure?
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The widespread dissemination of confidential information about P that would be objectionable to an average person.
Here the info is truthful (unlike false light and defamation) but private. |
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List the privacy torts and defenses:
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1. false light (consent, absolute/qualified privilege)
2. appropriation (consent, newsworthyness) 3. intrusion (consent) 4. Disclosure (consent, absolute/qualified privileg) |
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What is scienter?
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D making a statement that she knew or believed to be falose or had no basis for the statement
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What is needed for prima facie intentional misrepresentation?
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1. misrepresentation of material fact,
2. scienter 3. intent to induce 4. causation (actual reliance) 5. justifiable reliance 6. damages |
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What is needed for prima facie negligent misrepresentation?
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1. misrepresentation by D in a business or professional capacity
2. breach of duty toward a particular P 3. causation, 4. justifiable reliance 5. damages |
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What is needed for prima facie malicious prosecution?
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1. institution of criminal proceeding against P
2. termination in P's favor 3. absence of probable cause for proceeding 4. improper purpose (something other than bringing person to justice) 5. damages |
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What is prima facie for interference with business relations?
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1. existence of a valid K relationship between P and 3rd party
2. D's knowledge of the relationship 3. Intentional interference by D inducing breach or termination 4. Damages |
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What should and should not be considered in the reasonably prudent person standard?
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Consider - physical characteristics (blind)
Dont Consider - mental deficiencies (stupid) |
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What is the exception to the normal rule of a reasonably prudent person standard? (hint: like the back of my hand)
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Knowledge - if D has superior knowledge or events or action in question, it becomes a reasonable person with that knowledge (ex. I know the intersection of King St. is dangerous)
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MBE law: what is the standard that professionals are held to?
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The average professional in good standing in his field and in his community (big city brain surgeon to big city brain surgeon)
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MBE law: what is the standard children are held to?
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Subjective test - a child of like age, education, intelligence, and experience.
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MBE law: what is the standard owed by common carriers/inkeepers?
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if P is a guest, its a high degree of care so they are liable for slight negligence
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MBE law: describe the 4 primary status positions of individuals on land and the duty of care owed to each.
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1. undiscovered trespasser - no duty owed
2. discovered/anticipated trespasser - protect against known manmade unapparent highly dangerous conditions 3. licensee (social guest) - protect against known unapparent dangerous conditions (no duty to inspect) 4. invitees (customers) - protect against all knowable dangerous conditions (duty to inspect) |
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MBE law: describe the duty owed to Licensees
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Activities - reasonably prudent person
Conditions - protect against known unapparent dangerous conditions (NO duty to inspect) |
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MBE law: describe the duty owed to Invitees.
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Activity - reasonably prudent person
Conditions - protect against all knowable dangerous conditions (duty to inspect) |
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MBE law: Discovered/Anticipated trespassers
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Activity - reasonably prudent person
Condition - protect against known manmade unapparent highly dangerous conditions |
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MBE law: what are the elements of attractive nuisance?
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1. dangerous artificial condition the owner should be aware of
2. owner knows or should know that children frequent the vicinity of the condition 3. condition is likely to cause injury (kids can't appreciate the risk) 4. expense of remedying the situation is slight compared to the magnitude of the risk |
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True/False: MBE law: For liability to attach, the child need not actually be attracted to the land by the condition itself.
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True. Landowners are liable even if the kids are attracted by something else, or are already on the land for something else.
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MBE law: True/False: In an urban area the owner/occupier is not liable for damage caused off the premises by trees on the premises.
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False. Landowner is liable for falling branches if the tree is on his property.
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DE Law: What does the Guest Premises Statute state?
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Private residence owner is not liable to guests for conditions unless the accident was intentional on the part of the owner or caused by wilful or wanton disregard of the rights of others
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DE Law: When must a landowner warn a contractor?
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1. knows or should know of concealed dangerous condition,
2. knows or should know the subcontractor can't reasonably discover/know of the condition 3. fails to warn or remedy the condition |
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When can you borrow a criminal statute for a standard of care in a civil case?
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1. same protected class
2. accident/injury is within the harm sought to be prevented |
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What is the effect of P successfuly establishing that D breached a criminal statutury standard of care?
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negligen per se - this settles the duty and breach elements
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When is there a duty to act affirmatively?
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1. if you begin a rescue, you must continue to do so with reasonable care
2. relationships (family, common carrier, innkeeper, land possessor/invitee 3. Someone is in peril due to your conduct 4. you have the ability and authority to control a 3rd party's actions with knowledge that person would heed your instruction |
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What is DE's Good Samaritan Law?
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If you voluntarily, without the expectation of payment, render emergency assistance then you are immune from negligence (except wilful wanton or reckless)
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Who does DE's Good Samaritan Law pertain to?
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Everyone, including physicians paramedics and educational entites so long as they are not at a hospital or clinic
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True/False: If you intentionally or recklessly put yourself in danger (try to commit suicide), you can be liable for resulting injuries.
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TRUE
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Who are the 2 classes of victims in NIED?
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1. near miss
2. bystander |
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What is required for "near miss" NIED?
(don't forget the exception to (2)). |
1. P was in the zone of danger, and
2. subsequent physical manifestation (heart attack, hives, etc.) exception - erroneous report of relative's death or mishandling of corpse, no need for physical manifestation |
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What are the requirements for bystanders in NEID claims?
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1. time,
2. space, 3. relationship |
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What are the 3 elements of res ipsa loquitur?
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1. accident causing injury is the type that wouldn't normally occur unless someone was negligent (ex. barrel falling from 10th floor)
2. negligence is attributable to D (P shows she's suing the right person, D's control of object is instruuctive) 3. P is withotu falt |
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What does res ipsa loquitur substitute for in negligence action?
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Breach
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What are the effects of res ipsa loquitur?
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P has made a prima facie case and no directed verdict can be given to D
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In DE, what is effect of spoilation/destruction of evidence?
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It creates an adverse interest if done recklessly or intentionally but not negligently
(means we presume the evidence would have proved |
