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63 Cards in this Set

  • Front
  • Back
Intentional Torts General
1) Extreme sensitivity of P ignored in deciding if P has a COA

2) There are no incapacity defenses - i.e. all Ds are liable, drunks, kids, insane

3) Intent is element of every element - D has intent if he desires to produce the legally consequences of that tort, or he wanted to produce any forbidden consequence (transferred intent)
Battery
1) D must commit harmful/offensive conduct (ordinary sensitivity)

2) w/ P's person - anything holding, etc

need not be immediate - poison
Assault
1) D must place P in reas apprehension (knowledge not fear) (David/Goliath) (unloaded gun - if he doesn't know unloaded)

2) of IMMEDIATE harmful/offensive contact to P's person (words alone not enough, even with menacing gesture words can negate, promise of future action (bully) not enough)
False Imprisonment
1) D must commit act of restraint

Threats are sufficient. Don't need to actually look door (you leave I'll kill your son) (threat must affect reas person - Jupiter). Security guard - leave and I'll call cops - sufficient)

Act of restraint only counts if P 1) knows about it, OR 2) is harmed by it (oblivious roommate, but if misses meds)

2) Bounded area - all directions. Reas means of escape that P can reasly discover - notbounded (escape can't be hidden/dangerous/gross).
IIED
D can be held liable if he acted RECKLESSLY (only intentional tort like this)

Elements: 1) Outrageous conduct (exceeds all bounds of decency in civilized society)

Hallmarks: a) repetitive conduct, 2) D common carrier acting rudely, 3) P member of fragile class (young kid, pregnant, elderly)

2) Causes severe distress (jury issue) - in question they will negate this element (i.e. P was only mildly annoyed - that means no IIED).
Trespass to Land
1) D must commit act of physical invasion

2 ways for phys invasion: a) D enter's P's land voluntarily (get a map) (involuntary heart attack doesn't count), or b) throwing tangible object on or over P's prop (rock, hand) (putting another person on the land)

2) P must be possessor of land (includes air above/soil below to reas distance) (tenant usually, not LL)
Trespass to Chattels/Conversion
Both intentional interference of personal property (not buildings/land).

Can either dleiberately damage or steal (temporarily/permanently)

Difference is degree:

Trespass to Chattel - modest interference (get rental/repairs, etc)

Conversion - significant interference - P gets FMV, not just rental/repair costs (forced sale)

NY - BFP of stolen goods not a converter
Affirmative defenses - consent
Defense to all 7 intentional torts

1) Did P have legal capacity to consent? (i.e. drunk guy saying punch is not consent)

Kids can consent to age appropriate activity (i.e. 11 year old can consent to wrestle) (under 17 can't consent to sex)

Two types of consent: 1) express/literal with words (fraud or duress negates consent), 2) Implied - customary practice (i.e. sports, doctor). Based on D's reas interpretation of P's objective conduct (jury test, inner thoughts of P don't matter)

Consent isn't all or nothing - D can exceed scope of consent and be liable (i.e. physician expanding operation to something totally different)
Affirmative Defenses, Protective Privileges
For all, D must show:

1) Proper timing (i.e. threat in progress/imminent)

2) Reasonable belief threat is genuine (on D's part) - don't lose the priv if you make reas mistake
Affirmative Defenses, Protective Privileges

Self Defense
1) Must act when threat imminentn progress,

2) Must have reas belief threat is genuine (reas mistake OK)

3) Must limit to amount of force necessary - proportionality - excess force is a tort.

Actual deadly threat/reas belief - can use deadly force for you or other person

NY rule of retreat - must retreat before using deadly force if reas to do so (doesn't apply to own home)

MS - don't have to run, can shoot guy charging with knife

Cops never have duty to retreat

Defense of property - no deadly force (no spring guns either)
Protective Privileges

Necessity
Only for trespass to land, chattel, or conversion

2 kinds:

1) Public necessity - NL for savior who invades P's prop in emergency to save lots of people/community

2) Private necessity (to save D's safety/possesions)

D must pay actual/compensatory damages to P, NL for nominal/punitive damages, as long as emergency continues D can remain on P's land, can't be ejected (D throws him out - battery). If there's danger (fire) to P's house and D breaks in, NL
Defamation Elements
1) D must make defamatory statement specifically IDing P that adversely affects reputation (name-calling not enough, P must be alive.

Must be allegation or representation of fact - i.e. not opinions, unless one would assume based on fact (i.e. don't trust him w/ escrow $)

2) Publication - de minimis requirement (just 1 person is enough) - negligent publication is enough (i.e. sending letter to wrong person)

3) Damages, maybe

Libel - embodied in permanent format (video, written) - P need not prove damages, so libel only has 2 elements

Slander - oral statement

Slander per se (slander affecting business/professional life, P committed crime of moral turpitude, unchaste woman, STD)

Regular slander - P must prove damages - need economic harm, social rep harm not enough
NY defamation presumed damages rule
Libel - damages not presumed

Proof of damages required if either: 1) not in per se category, 2) defamatory impact not clear on face of statement
Affirmative Defenses in Defamation
1) consent

2) Truth - can prove factually correct (D bears burden of proof)

3) Absolute and qualified privileges
Affirmative Defenses in Defamation - Absolute/Qualified Privileges
Absolute:

Based on identity of D (spouse talking to each other, govt officials in official duties (judges, lawyers, witnesses)

Qualified:

Based on when speech is made - strong social interest in candor (letters of rec, statements to police) - 2 limits: 1) must be relevant, can't just inject irrelevant bad things into LOR, 2) D must have reas belief the statement is accurate)
Affirmative Defenses in Defamation - Absolute/Qualified Privileges - Public Concern Test
If D's speaking/writing relates to public concern matter, add 2 more elements P must prove

1) P must prove falsity of D's statement (burden shifts)

2) P must prove some degree of fault by D (depending on type of P)

P public figure - standard is intent/reckless (D knew false or reckless in accuracy)

P private figure in pub concern case - P must show negligence in D determining accuracy
Privacy Torts

1) Appropriation
D using P's name/image for commercial purpose

Newsworthiness exception - magazine cover, book on Jeter, etc

P need not be celebrity

This is the ONLY privacy tort in NY (not the other 3)
Privacy Torts

2) Intrusion
Invasion of P's seclusion in a way objectionable to average person

Eavesdropping, etc (P must have reas expectation of privacy)

Trespass to land not required
Privacy Torts

3) False light
D making widespread dissemination of major falsehood about P - would be objectionable to average person

Must tell lots of people (unlike defamation)

Falsehood can be defamatory, need not be (telling people I'm jewish)

No intent requirement - good faith error means L (don't gossip)

Damages - only emotional (defamation only economic)
Privacy Torts

4) Disclosure
Widespread disemation of info about P that would be objectionable to avg person

Usually data - med/financial recrods, etc

Newsworthiness exception - pub interest, not a tort

Underlying info revealed must be truly confidential (gay pride parade, tells coworkers - not a tort)
Affirmative Defenses to Privacy Torts
Same as general aff defenses

Consent

Absolute/qual privs available for false light and disclosure
Economic Torts

1) Fraud
1) D must make misrep of fact (silence not enough)

2) Misrep must be deliberate or reckless (mistake by D not enough)

3) Misrep must be intended to induce reliance (material)

4) must be reliance (affect P's decision)

5) P must suffer damage (i.e. pays mor for car)
Economic Torts

2) Prima Facie Tort
(might be on NY, prob not)

Intentional infliction of pecuniary harm. Just need intent and harm (i.e. lying about sales on radio, selling below cost to put P out of buisiness)
Economic Torts

3) Interference with business relationship
Inducing breach of K

1) Must be K b/w P and 3rd party

2) D must know about that K

3) D must try to persuade P to breach K (i.e. offer better deal)

4) P must breach K

3rd party can sue D for interference (in addition to P for breach

Special relationship privilege (i.e. parent, lawyer, accountant can tell you to breach, no tort)
Economic Torts

4) Theft of Trade Secrets
1) P must have valid trade secret (business advantage, not generally known, owner takes steps to keep it secret)

2) D must take trade secret by improper means (traitorous insider, corporate spy)
Negligence Intro
Will be half of MBE (also NY essays tilt toward neg - especially product L)

Neg assumes every time we act, might hurt someone - duty is to take risk-reducing precautions
Elements for Neglience
1) Duty

2) Breach

3) causation

4) Damages
General duty
P must specify the duty owed

1) Duty is owed to foreseeable victims of carelessness (Palsgraff) (unforeseeable victims always lose on test)

Exception - rescuer injured - rescuer P injured helping person who fell b/c of company's negligence, rescuer can sue

2) Duty owed is AMOUNT OF CARE OF HYPOTHETICALLY REASONABLY PRUDENT PERSON ACTING UNDER SIMILAR CIRCUMSTANCES (OBJECTIVE JURY TEST)

No allowance for D's individual characteristics (i.e. doesn't matter if D is stupid, or an amateur skier - owes reas care under circumstances)

2 exceptions where we customize D's standard of care

a) D's physical attributes (reasly prudent blind person

b) D w/ superior knowledge/skill (i.e. race car driver - reasly prudent with that skill). Includes D's knowledge of isolated fact (i.e. held to reasly prudent person who knows the intersection has bad visibility)

REASLY PRUDENT STANDARD APPLIES IN EVERY QUESTION UNLESS WE DEPART FROM THE DEFAULT IN ONE OF 6 SITUATIONS
6 Situations Where We Depart from Reasonably Prudent Person Standard
1) D is a child

2) D is professional service provider (health care, lawyers, etc)

3) Duty of possessors of real estate to entrants who come on land (Premises L)

4) Statutory Standards of Care - i.e. neg per se

5) Duty to Act Affirmatively

6) Negligent infliction of Emotional Duress
Departure 1: D is a child
Children under 4 - incapable of negligence - no duty

Children 4-18 - held to standard of care of hypo child of similar age, experience, and intelligence, acting under similar circumstances (if it's 6 year old, first time rider, stupid - P won't win)

Exception - child under 18 ENGAGED IN ADULT ACTIVITY - then standard reasly prudent person standard (vehicle with engine - things like hunting vary from state to state
Departure 2: Professional Service Provider
i.e. health care, laywers, accountants

Standard for all health care providers:

Standard: Care of average member of that profession practicing in similar community (average, not reasonable - so it's colleagues, fact-based). Conformist - do what other doctors/lawyers do.

Compare similar communities - i.e. small towns to small towns

Specialists compared w/o regard to geography
NY Informed Consent
Doctor's duty in NY includes explaining risks of any procedure - if doctor doesn't and risk materializes it's negligence

Obligation waived sometimes:
1) Commonly known risks (i.e. infection)
2) Patient declines to hear/listen
3) Patient mentally incompetent
4) if disclosure would be medically harmful (i.e. patient has anxiety)
Premises Liability

1) Undisclosed Trespasser
Duty is zero, regardless of whether hurt by D's action or condition.

P will always lose - trespasser is unforeseeable
Premises L

Discovered Trespasser/Anticipated Trespasser
1) If injury caused by act of owner, duty is regular reasly prudent person (just a neg case really)

2) If preexisting injury causes injury, possessor has duty only to protect when 1) condition is artificial (no duty for natural conditions), 2) condition is highly dangerous, 3) condition is conealed/not apparent (no duty for open/obvious dangers, 4) known by land possessor beforehand

Only duty to protect from known, man-made, concealed death traps.
Premises L

Licensee (house guests, solicitors, friends)
Enter with permission, but w/o any purpose of commercial benefit to land possessor

1) for acts by landowner, reasly prudent standard as always

2) for preexiting conditions, duty is triggered when 1) condition is concealed, 2) known by landowner

So must protect licenseee from all known traps.
Premises L

4) Invitees
Enter land to confer commercial benefit or land open to public generally (i.e. store customer, museum, hospital, airport)

1) action by land possessor - reasly prudent standard

2) Dangerous conditions, 2 part test: 1) dangerous condition must be concealed, 2) condition must be one possessor's knows about or could have discovered through reas inspection (cost/benefit - don't have to check every day

Protect from all reasly knowable traps on land.
NY Premises L
All entrants, regardless of how they got hurt, standard is reasly prudent person UNDER THE CIRCUMSTANCES (but use the categories as factors after you say NY abolished it)
Premises L - Firefighters/police rule
Usually can't recover for inherent risks of their job - assumption of risk idea

NY - firefighter rule only applicable against employer/coworker (so can sue them, just not homeowners)
Premises L - Child Trespasser
D must live up to standard of reasly prudent person under the circumstances.

Things to consider:

1) how likely kids will come on land (proximity to school, etc)

2) Is there something that will lure kids in (attractive nuisance) - if so, owners must take more care - still regular standard though)

Factor in age of kids
Departure 4: Statutory Standards of Care
Goal for P is to say D violated some crim or regulatory statute, therefore it's neg per se/that statutory standard should govern

P must demonstrate:

1) P falls w/in class of victims the statute seeks to protect,

2) The injury is in the class of risks statute seeks to protect

Both satisfied --> statute becomes the standard of care in jury instructions instead of reasly prudent (i.e. smoking weed statute/gas light - no neg per se)

Exceptions to statutory borrowing approach where 2 part test is met but we don't borrow for neg per se:

1) Statutory compliance would be more dangerous than violation (crossing yellow line to avoid car, hit pedestrian - just reasly prudent standard)

2) Compliance with statute impossible (heart attack, run red light - but can look at things like whether he took meds under reas care)
Departure 5: Duty to Act Affirmative
Generally no duty to act (Michael Phelps)

Exceptions:

1) Preexisting relationshp b/w D and victim - i.e. property owner/invitee, common carrier/innkeeper, sibling drowning, parent, etc

2) D causes the peril (whether neg or not) - i.e. you skid, not negligently, passenger in car hurt - duty to help)

Undertaking rescue - must rescue as reasly prudent person (no drunk CPR)

NY Good Samaritan law - protects gratuitous rescue by doctors/nurses - NL for simple negligence
Departure 6 - NIED
Your behavior causes emotional distress

3 scenarios:

1) Near miss case - D's neg must 1) put P in zone of physical danger, 2) distress P, 3) distress produced physical manifestation (just miss pedestrian, heart attack)

2) Bystander claim for emotional distress (must be contemporaneous witness to negligent bodily injury on close family member)

NY - distressed P himself must also be exposed to the harm

3) Preexisting relationship b/w D where neg act can foreseeably cause distress (i.e. neg diagnosis - doctor says you have HIV)

IIED (D acting on purpose/reckless versus NIED (negligence)
To satisfy a duty:
1) Whenever duty owed, can fix the problem

2) Give a warning - sign/verbal (good answer on MBE will have a warning)
2) Breach
P demonstrates D fell short of required duty/obligation

Need 2 things in essay:

1) ID wrongful behavior (factual)

2) Reason why that fact falls short of standard of care (argument)

"P will argue it was breach when D took eyes off road. This was unreas b/c reas ppl keep eyes on road).
2) Breach

Res Ipsa Loquitur
P lacks info about what D did wrong (barrel

P must demonstrate:

1) accident is normally associated with neg (probability argument - common knowledge, stats, experts)

2) accident is normally due to neg of someone in D's position (i.e. showing D had control over object)

Doesn't guarantee win - just substitute for jury, jury decides
3) Causation

Factual
Demonstration by P of D's breach/its connection to the injury

But for test (doesn't work when multiple Ds)

Multiple Ds and combined forces merge - merged force hurts P (2 forest fires) - use the substantial factor test:

Was each breach, standing alone, sufficient to cause the injury - if yes, it's a substantial factor, D liable (if both, both D's are liable - J & S liability)

Unascertainable cause - Summers v. Tyce (shift burden to Ds to prove beyond POE)
3) Causation

Proximate
Foreseeability - make people pay for foreseeable breaches of duty, not unforeseeable. If foreseeable result, D is prox cause.

Direct Cause - breach leads to instant injury - most of these will be foreseeable (unless freakish/bizaree accident

2) Indirect - D commits some breach, other stuff happens, P suffers harm

4 settled cases that ARE prox cause (D liable):

1) Intervening medical negligence (doctor makes it worse) - D liable for initial injury + doctor messup

2) Intervening negligent rescuers - the injuries they cause

3) Intervening reaction or protection forces - stampede caused by D

4) Subsequent disease/accident - P later falls while on crutches

Why is it a breach, what are we worried about happening? If that happened, D is prox cause.
4) Damages
Eggshell Skull rule - D liable for all damages, no matter how great (take P as you find him)

This is for all of torts, not just neg
Negligence Affirmative Defenses

Traditional Contributory Negligence (minority)
Question will say in tradtl contrib neg state

If P in neg claim failed to exercise care for his own safety, P barred from all recovery (usually reasly prudent standard, sometimes violating statutory standard) (i.e. drunk driver hits P jaywalking, no recovery)
Traditional Implied Assumption of Risk
MBE would say "state uses traditional defenses"

Conduct by P where we can assume he assumed the risk - bars recovery

1) P must have knowledge/appreciation of the risk

2) P must take on the risk voluntarily (not emergency)

NY - P's failure to wear seatbelt doesn't bar recovery - just lowers damages
Comparative Negligence (majority, including NY)
This is default on exam

P not acting reasly prudent or violating statute

Recovery is REDUCED, NOT BARRED

1) Pure comparative negligence (NY, default for MBE) P 70% responsible, D 30% - P can get 30%

2) Partial/modified comparative neg: a) P less than 50% at fault, damages reduced. b) P more than 50%, no recovery.
Strict Liability

Animals
1) Domesticated animals - generally no SL unless vicious propensities you're aware of (i.e. dog has bitten before/is mean). SL never applies if P is trespasser on your land

2) Wild animals - SL no matter what. Efforts at safety irrelevant (don't get distracted by good cages etc)
Strict Liability

Abnormally Dangerous Activities
2 requirements to be abnormally dangerous:
1) Activity creates foreseeable risk of seirous harm even when reasonable care is exercised

2) Activity must not be common usage in area where D conducts it (i.e. crop dusting would be abnormally dangerous in some towns, not others

If both met, safety precautions irrelevant
Injuries Caused by Consumer Products
4 elements:

1) D must be merchant who routinely deals in goods of this type

a) Casual sellers (ebay, selling car) - no SL

b) Service providers - not merchants of tangible goods that are collateral to their service (i.e. chair in doctor's office (premises L maybe, not SL)

c) Commercial lessors - merchants (i.e. rental company, brakes fail - yes SL)

d) Merchant includes every merchant in distribution chain (Cuisanart, middel man, and Macy's can be L - no privity req)

2) Must be evidence product is defective.

Two kinds of defects:
a) Manufacturer's defect - glitch, differs from others on assembly line - SL for manufacturer's defect, precautions irrelevant

b) Design defect - if there exists safer/practical/cost-effective way to build it. If all 3 met, it's SL (i.e. baby crib with bars closer together)

Some use 3rd category: info defect (we treat as part of design defect) - product has certain risks you can't eliminate, and consumer wouldn't know - seller must issue clear/prominent warning, or else SL (t
SL and Affirmative Defenses
Comparative fault (NY and majority)

Any P misconduct will lead to damage reduction - i.e. you pet the tiger
Nuisance
Type of harm, not really a separate tort

Unreas interference w/ enjoyment of one's property

Can be intentional (music to piss you off), negligent (music happens to piss you off, or with no fault

Exception: Strict nuisance (i.e. factory smoke, even if they took precautions)

Courts balance the equities - compare P's injuries, D's burdens - find answer talking about balancing interests/unreas interference
Vicarious L

1) Emloyer/employee - respondeat superior
Employer VL if

1) employee was acting w/in scope of employment - 3 exceptions a) force is part of job (bouncer), b) job generates tension b/w employee/customers (repo man), c) employee does intentional tort out of misguided effort to advance employer's interest (if one of these 3, employer is VL)
Vicarious L

2) Employer/Independent Contractor
Generally no VL if independent contractor injures someone, except land possessor is VL if independent contractor injures invitee ON THE PROPERTY (so yes for paint falling on guest, no for contractor running red light on way to your house)
Vicarious L

3) Car owners/drivers
General rule - no VL if you lend someone your car (unless they're doing errand for you - like an agent)

NY - permissive use state - you are VL for anyone driving your car with permission, and presumption is they had your permission.

Under fed statute - rental companies not L for people I injure with their car
Vicarious L

4) Parents/kids
Parents not liable for torts of kids (MBE)

NY - VL for parents, but only modest amounts (up to 5k or something)
VL - just b/c it's one of these relationships...
doesn't mean it's a VL case - there might be direct L

i.e. D negligently keeps gun on table, kid shoots neighbor - that's a direct L case, not VL

or giving keys to drunk friend

or negligent hiring
Co-Defendant Remedies
Assume P successfully sues multiple Ds, P gets all money from one D

General rule - proceed by percentages

Jury assigns fault to each D, Ds collect from each other

2 exceptions:

1) out of pocket party can recover 100% he paid to P (indemnification). 2 examples - VL party can get full indemnification from active tortfeasor), non-manufacturer gets full indemnification fin SL products cases (i.e. Macy's pays, can get full indemn from Cuisinart)
Remedy for loss of consortium
any case where V is married, spouse can also get separate COA against all the Ds for 3 injuries:

1) loss of household services

2) loss of society/companionship

3) loss of sex