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120 Cards in this Set
- Front
- Back
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What is the Standard for INTENTIONAL Torts?
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Reasonable person standard (ordinary person)
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Capacity defenses for Intentional Torts
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do NOT exist!!!!
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7 Intentional Torts are:
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(1) Battery
(2) Assault (3) False Imprisonment (4) Intentional Infliction of Emotional Distress (5) Trespass the Land (6) Trespass to Chattels (7) Conversion |
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Defenses to INTENTIONAL TORTS
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1. Consent
2. Protective Privileges (Self defense, Defense of others, defense of Property) 3. Necessity |
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BATTERY where the D must commit a ___ or _____ contact and must be with _____ ______
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Battery: Where D commits a HARMFUL Or OFFENSIVE contact that is with the PLAINTIFF'S PERSON
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PRIMA FACIE BATTERY
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(1) D Brought about HARMFUL/OFFENSIVE contact
(2) INTENT by D to ACT (3) CAUSATION |
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Where can an INTENT to Assault be Transferred (Torts)
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to BATTERY, and can make a Prima Facie Case with assault INTENT
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What is Plaintiff's person?
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Everything connected to plaintiff
(horses included) |
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ASSAULT
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(1) D must place plaintiff in REASONABLE APPREHENSION (P's KNOWLEDGE )
(2) of IMMEDIATE BATTERY (3) By ACTIONS |
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Can Negate Assault's threat of immediate battery by
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WORDS
(a) in Future Tense (3pm, i'll kill you) (b) Conditional Words (If i didnt love you) |
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FALSE IMPRISONMENT
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(1) ACT of RESTRAINT
(2) Confined to BOUNDED AREA (no way out) (3) P AWARE/HARMED by ACT |
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Omission can be an ACT OF RESTRAINT if _____
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PRE-EXISTING DUTY to act
False Imprisonment |
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BOUNDED Areas do NOT exist if
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REASONABLE means of Escape
Not humiliating, hidden or disgusting ones FALSE IMPRISONMENT |
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INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED)
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(1) Act by D of Outrageous Conduct
(2) Intent by D to Cause P to suffer severe emotional distress Or RECKLESSNESS as to the EFFECT of D's conduct (3) CAUSATION (4) Damages |
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IIED does NOT require ____
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Physical Symptoms
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Definitely Outrageous Conduct if:
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(1) Conduct is Continuous/Repetitive
(2) COMMON CARRIER or INN KEEPER (3) Fragile Class: Pregnant Women Kids Old People |
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Person causing IIED for P's PHOBIA is LIABLE if
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he KNEW about Phobia
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TRESPASS to LAND
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(1) INTENT to
(2) PHYSICAL INVASION (3) of LAND |
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Two ways to TRESPASS LAND
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(1) enter it
(2) Tangible Objects come onto Land by D (soap and strawberries) |
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LAND INCLUDES
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Airspace and Soil for Reasonable DISTANCE
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TRESPASS to CHATTELS
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(1) INTENTIONAL
(2) INTERFERENCE with (3) PERSONAL PROPERTY (4) by destruction or theft |
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Remedy for Trespass to Chattel
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Cost of REPAIR
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CONVERSION a.k.a _____
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aka FORCED SALES
(1) INTENTIONAL (2) INTERFERENCE with (3) PERSONAL PROPERTY (by theft or destruction) |
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RECOVERY for Conversion
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FMV at the TIME AND PLACE of CONVERSION (not cost of brand new replacement)
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Consent requires ______
DEFENSE to _______ |
Legal capacity
Defense to INTENTIONAL TORTS |
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Exception to Express Consent Defense
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FRAUD or DURESS
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Implicit Consent comes from _____ Or ____ from D's ___ ___ of P's ____ ____
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Implicit consent from
(1) Custom Or Usage (2) DEFENDANT's Reasonable INterpretation of P's OBJECTIVE actions = JURY QUESTION |
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SCOPE of CONSENT
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Cannot be EXCEEDED otherwise LIABLE for Intentional TORT! (usually battery)
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PROTECTIVE PRIVILEGES are DEFENSES for _____ and ____ WHILE ___ is in ____ and ___ belief that ___ is ____
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INTENTIONAL TORTS ONLY
(1) Acts WHILE threat is IN PROGRESS (2) REASONABLE belief that THREAT is GENUINE |
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Reasonable MISTAKE for Protective Privileges is .....
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Permitted and Protects from LIABILITY
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SHOPKEEPER'S PRIVILEGE requires one to act ________ with a ____ ___ that someone was __ ____ of your ____
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Shopkeeper's privilege = Protective Privilege against INTENTIONAL TORTS
(1) Act in the HEAT of MOMENT (2) Reasonable BELIEF that someone was in POSSESSION of your PROPERTY |
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Shopkeeper's Privilege allows you to
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DETAIN for a REASONABLE TIME a person in order to make a INVESTIGATION
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INTENSITY of FORCE used to Defend PROPERTY (protective privilege) must be
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NON DEADLY (Proportionality Test)
deadly force can be viewed as Battery in order to protect land |
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MD Rule for Force used to Defend against DEADLY FORCE
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MUST RETREAT first unless in your HOME
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NECESSITY is ______ only to ______ Torts for ______
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NEcessity is a DEFENSE to INTENTIONAL Torts for PROPERTY ONLY
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Public NECESSITY is......
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(1) D INVADES
(2) P's Property (3) In EMERGENCY (4) to PROTECT (5) COMMUNITY Or SIGNIFICANT GROUP of PEOPLE |
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Public Necessity does ___ give rise to any _____
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Public Necessity does NOT give rise to ANY LIABILITY
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Private NECESSITY is....
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(1) D INVADES
(2) P's PROPERTY (3) In EMERGENCY (4) to Protect HIMSELF |
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Private Necessity D must pay for ____ he ____ but not for ___ or ___ ____
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Private necessity liable for HARM he CAUSES but NOT Punitive or NOMINAL DAMAGES
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As Long as Private Necessity Continues, D has ___ of ____ and Owner ___ ___ D
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D has RIGHT of SANCTUARY and Owner CANNOT EJECT D
otherwise LIABLE |
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DEFAMATION is a
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(1) Statement that
(2) SPECIFICALLY IDENTIFIES the P and (3) ADVERSELY affects REPUTATION (4) PUBLICATION (telling another person) (5) DAMAGES |
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2 types of Defamation include....
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LIABLE (written)
SLANDER (oral) |
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Publication of Defamation can be
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NEGLIGENT
and still be liable for Defamation tort |
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SLANDER PER SE is....
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ORAL STATEMENTS ON:
(1) P's BUSINESS or PROFESSION (2) P committed CRIME of MORAL TURPITUDE (3) UNCHASTE WOMAN (4)P has LOATHSOME DISEASE (Automatic Liability of Defamation) |
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Defamation damages are only given for ____ loss and ___ for ____ loss
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Defamation damages Only for ECONOMIC LOSS and NOT for social loss
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Defenses to DEFAMATION
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(1) Consent
(2) ABSOLUTE PRIVILEGES (3) TRUTH (4) QUALIFIED PRIVILEGES (5) SPECIAL CASES |
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ABSOLUTE PRIVILEGES ARE....
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(1) SPOUSES - D cannot be liable for what he told Spouse
(2) Govt Officers on Official DUTY: judicial context privileges |
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QUALIFIED PRIVILEGES are ___ ___ where the speaker must have __ __ ___ that what she said was ___ and ___ to what was ___
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Qualified Privileges are HONEST MISTAKES where
(1) Speaker had Good faith belief that she made ACCURATE statements and (2) Words were CONFINED to RELEVANT speech |
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SPECIAL CASES are DEFENSES of __ ___ and must prove ___ and ____
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Public Concern
and must prove FALSITY and FAULT |
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Public Figure Defamation Burden
(MD) |
Falsity and Fault that D KNEW statement was FALSE and
FAULT b/c RECKLESS disregard for it MARYLAND treats every defamation case as PUBLIC figure case |
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PRIVATE Figure DEFAMATION Burden....
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P must show that D was NEGLIGENT in checking ACCURACY of statement
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PRIVACY TORT includes FOUR AREAS of...
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(1) APPROPRIATION
(2) INTRUSION (3) FALSE LIGHT (4) DISCLOSURE |
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Appropriation requires ____ _____ for liability
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COMMERCIAL PURPOSE
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APPROPRIATION
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(1) USE of
(2) NAME or IMAGE (3) for COMMERCIAL PURPOSE (4) Without Consent |
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Newsworthiness Exception applies to which 2 Privacy Torts?
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APPROPRIATION
DISCLOSURE |
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INTRUSION
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(1) INVASION of
(2) Person's SECLUSION (3) that is OBJECTIONABLE to (4) AVERAGE PERSON |
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FALSE LIGHT
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(1) WIDESPREAD Dissemination of
(2) MAJOR FALSEHOOD of P (3) OBJECTIONABLE to AVERAGE Person |
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False light statements do not require FAULT?
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Good Faith Beliefs STILL subject to liability
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DISCLOSURE
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(1) WIDESPREAD Dissemination of
(2) TRUTHFUL CONFIDENTIAL INFORMATION (3) Objectionable to AVERAGE Person |
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Newsworthiness Exception
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Eliminates Liability for Privacy Torts because PUBLIC as RIGHT to KNOW
(1) MisAppropriation (2) Disclosure |
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DEFENSES to PRIVACY Torts
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(1) CONSENT
(2) ABSOLUTE Privileges - NOT applies to INTRUSION Or APPROPRIATION |
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NEGLIGENCE
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(1) D had DUTY to protect P from injury
(2) D BREACHED Duty (3) P suffered ACUTAL INJURY (4) Injury PROXIMATELY RESULTED from D's Breach and (5) DAMAGES |
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DUTY includes
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(1) Foreseeable Victims owed
(2) REasonable Duty of Care (Reasonable Prudent Person) |
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TYPES of DUTY (Negligence)
SIX |
(1) Premises Liability
(2) Respondeat Superior (ER) (3) Physician Duty of Care (4) Statutory Standard of Care (5) Duties to ACT AFFIRMATIVELY (6) Negligent Infliction of Emotional Distress |
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NEGLIGENT PRODUCTS LIABILITY
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(1) D acts as COMMERCIAL SUPPLIER
(2) BREACHES duty when PLAINTIFF Shows a. Negligent Conduct of D LEAD TO b. SUPPLYING a DEFECTIVE PRODUCT |
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RESPONDEAT SUPERIOR requires....
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Negligent Hiring requires REASONABLE STANDARD of CARE
includes background checks on employees otherwise EMPLOYER LIABILITY |
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PHYSICIAN DUTY of CARE
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(1) Duty to Provide Enough Information
(2) For REasonable Person to make (3) Informed Decision/Consent to (4) Proposed Treatment(s) if reasonable person would not have used information in making decision, physician not liable |
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MENTALLY ILL people are measured by ___ __ __ standard for NEGLIGENCE
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REasonably Prudent Person Standards
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PHYSICAL CHARACTERISTICS can
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Physical characteristics can be added to RPP standard
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CHILDREN STANDARD of CARE
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Standard of Care for kids is of a
(1) CHILD in LIKE AGE (2) EDUCATION (3) EXPERIENCE (4) and INTELLIGENCE |
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Premises Liability Exists for (3) Types of People
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(1) Trespassers (Discovered/Anticipated)
(2) Licensees (3) Invitees |
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Undiscovered Trespassers Owed
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NO DUTY
No liability for negligence EVER |
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Discovered Trespassers Owed
ANTICIPATED Trespassers ALSO Owed |
Duty for All KNOWN MAn-Made Death Traps
(1) KNown by D (2) Artificial conditions (3) highly dangerous causing of death/ serious injury (4) Condition was concealed to P (NOT OBVIOUS) |
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LICENSEE enter for their ___ _____ and owed duty of
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Licensee enter for OWN PURPOSE and Owed Duty of:
ALL KNOWN TRAPS (1) D KNEW (2) CONCEALED "TRAP" CONDITION |
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INVITEE enter for ___ ___ and owed Duty of .....
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INVITEE confer ECONOMIC BENEFIT and OWED:
Duty for ALL KNOWN or REASONABLY KNOWN TRAPS (1) D KNew/REASONABLE INSPECTION (2) TRAPS (Concealed) |
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INVITEE under Premise Liability can LOSE THEIR STATUS and become ______ if they.....
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Invitees can become TRESPASSERs if they EXCEED the SCOPE of their Invitation
(usually Undiscovered Trespasser) |
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MARYLAND LICENSEE owed
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Duty of DISCOVERED TRESPASSER- entering for their own benefit
(all known man made death traps only) |
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MARYLAND INVITEE Owed
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(includes business invitees and social guests) owed:
(1) KNOWN or REASONABLY discoverable (2) TRAPS MD section 314A Restatement of Torts* |
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Owner Never Liable for Premises Liability for:
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FireFighters and POLICE = inherent risk in jobs
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Child Trespassers owed duty under Premises liability for
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Artificial Conditions
but in MD* treated as ADULT trespassers |
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Duty SATISFIED under Premises Liability if:
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(1) Fixed Problem
(2) Warned of Problems (traps) |
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Statutory Standards of Care Duty Only allowed if:
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Class of Person/Class of Risk Test Satisfied
Always evaluate b/c stt. duty could not matter in MBE question and then base on ordinary negligence. |
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Statutory Standard of Care for Negligence Cases Establishes
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Negligence Per Se
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Negligence Per Se is....
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Duty and Breach are presumed and P need only show Causation and Damages for Prima Facie Case of Negligence
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*MD Distinction on Statutory Standard of CAre Establishes
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EVIDENCE of Negligence, NOT negligence Per Se
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When NOT to use Statutory Standard of Care
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(1) Compliance with STT more dangerous than Violation Or
(2) Impossible to Comply (heart attack while violating Stt Duty) |
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Duties to Act Affirmatively Exist ONly When
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(1) PRe-Existing RElationship Or Formal Relationship b/c of Law (innkeeper for intentional torts)
(2) D caused the PERIL (3) D VOLUNTARILY RESCUEs (needs to carry it out Reasonably) |
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Md * Good Samaritan law protects rescues from
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(1) Ski Patrol
(2) Architects/Engineers (3) Doctors/Nurses (4) Police/Firefighters/EMT |
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NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
NIED |
(1) Near Miss Case
a. P put into Zone of Danger by D's negligence b. Physical Symptoms of distress manifest 2. Bystander Case a. RELATED to injured Victim and b. P Observed and was Present |
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NEID in Near Miss Cases Requires a
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PHYSICAL MANIFESTATION of SYMPTOMS
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RES IPSA LIQUITOR - BREACH that is...
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(!) proved that the accident associated with NEGLIGENCE
(2) Prove D more likely than not, had Exclusive Control of object |
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RES Ipsa Liquitor used when P has _____ information to ____ the _____ act.
Directed verdicts for res ipsa liquitor? |
Res Ipsa Liquitor shows breach where P has INSUFFICIENT information to IDENTIFY the WRONGFUL ACT
Jury decision so no directed verdict IF P meets requirements |
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FACTUAL CAUSATION
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But FOR BREACH, Injury would not have Happened
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CO-MINGLED CAUSES
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Substantial Factor TEST
which cause was substantial factor to injury? |
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MULTIPLE DEFENDANTS - UNASCERTAINABLE CAUSES
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JOINT LIABILITY unless DEFENDANT can show they were not the Cause
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PROXIMATE CAUSE
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Foreseeable consequence of actions
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PROXIMATE CAUSE - WELL SETTLED QUARTET - 4
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1. INTERVENING MEdical NEgligence
(2) INTERVENING NEgligence RESCUE 3. INTERVENING REACTION FORCES (ppl stampede) (4) SUBSEQUENT DISEASE Or ACCIDENTS |
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DAMAGES for NEGLIGENCE
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(1) EGG SHELL SKULL PRINCIPLE - liable even if P was damaged more than average person
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*MD DAMAGES for NEGLIGENCE
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Pain and Suffering CAPPED but increases $15,000/Yr
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DEFENSES to NEGLIGENCE (3)
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(1) CONTRIBUTORY NEGLIGENCE - no liability to D
(2) ASSUMPTION of RISK - no liability to D (3) COMPARATIVE FAULT a. Modern - if P fault over 50%, no liability to D b. traditional - P gets % of fault D is liable for |
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STRICT LIABILITY = 3 CLIAMS
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(1) WILD ANIMALS
*DOMESTIC ANIMALS IF KNEW Vicious Propensities of Animal (2) ABNORMALLY DANGEROUS CONDITIONS (gas/explosives) (3) STRICT PRODUCT LIABILITY |
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Contributory Negligence is NOT a defense for.....
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STRICT LIABILITY ACTIONS!
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ABNORMALLY DANGEROUS ACTIVITIES are...
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(1) Created Foreseeable risk of serious harm even with reasonable care and
(2) activity not a matter of common usage in community |
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STRICT PRODUCT LIABILITY is...
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(1) D is Commercial Supplier of Product
(2) Product expected to be Supplied to Customers (3) Without Substantial Changes in Condition and (4) D breached Duty by (5) Supplying Defective Product by (6) SELLING or PLACING INTO the STREAM of COMMERCE |
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Product Defects can be 2 types...
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(1) Manufacturing defects - all D in distribution chain are strictly liable
(2) Design defect |
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To prevail on Design Defect, P must show (3 Part TEst)
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(1) Safer version existed
(2) alternative design was economical (3) alternative design was practicable |
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*MD SEALED CONTAINER DEFENSE
to Strict Product Liability |
Non-manufacturer is not liable for Defective products if
(1) No knowledge (2) never altered (3) not discoverable by reasonable care |
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INDEMNIFICATION for STRICT LIABILITY (PRODUCT)
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If Manufacturer is Strictly Liable under
(1) Strict Product Liability Or NEgligence, TORTFEASORS (RETAILERs Or USERS of products) can be indemnified even if they were negligent in (2) failing to discover or guard against (3) the defect Considerable difference in the degree of fault test* |
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MD* RULE DEFENSES for STRICT LIABILITY
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Assumption of Risk
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Affirmative DEFENSES for STRICT LIABILITY
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Assumption of Risk
Comparative Fault NOT CONTRIBUTORY NEgligence |
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NUISANCE is....
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(1) Substantial Interference
(2) With Landowner's ability to use land (3) that is inconvenient, Offensive, or Annoying (4) to AVERAGE person |
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Remedy for Nuisance
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Court balances EQUITIES of each person's land use
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Superseding Forces are...
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mitigators of liability
(1) Unforeseeable force that (2) breaks the causal link between (3) Initial wrongful act and harmful ultimate injury |
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VICARIOUS LIABILITY
4 Types... |
(1) Employer/Employee
(2) Hired Party/Independent Contractor (3) Automobile Owner/Driver (4) Parent/Child |
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Employer - Employee Vicarious Liability
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(1) Tort Committed "Within the Scope of Employment"
Intentional Torts can be REASONABLY ANTICIPATED where: (1) EE has AUTHORIZATION to USE FORCE (2) EE's CONDUCT was to serve ER's Uses |
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HIRED PARTIES and INDEPENDENT CONTRACTOR Vicarious Liability
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(1) LANDOWNER is liable if
(2) IC injures Invitee (3) b/c Customers Owned Duty of Safe Premises (Public policy grounds) |
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Auto Owner/Driver Vicarious Liability
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(1) Owner of car liable if
(2) Driver was doing errand for Owner *Rebuttable presumption in MD |
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Md Statute Parent/Child Vicarious Liability
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(1) Willful or Malicious Torts
(2) up to $10,000 Parent is liable |
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COMPARATIVE CONTRIBUTION is...
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CO-DEFENDANT can get reimbursed for $ given
Md* equal fractional shares b/c no comparative fault system |
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LOSS of CONSORTIUM
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(1) Loss of Services
(2) Loss of Society (3) Loss of Sexual Intimacy *Md - both spouses sign off on sexual intimacy b/c disruption to marriage |
