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102 Cards in this Set
- Front
- Back
Intentional torts to the person
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- Battery
- Assault - False Imprisonment - Intentional Infliction of Emotional Distress Prima Facie Case: Act (volitional movement), intent (specific or general: knows with substantial certainty consequences will result), causation. [Damages only required for IIED] |
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Torts to property
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- Trespass to Land
- Trespass to Chattels - Conversion Prima Facie Case: Physical invasion of π's real property, intent, and causation. [Damages only required for T to Chattels] |
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Elements of Battery
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- Harmful or offensive contact
- To plaintiff's person - Intent - Causation |
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Elements of Assault
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- Act by D creating reasonable apprehension (knowledge)
- Of immediate harmful or offensive contact - Intent - Causation |
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Effect of words to create assault
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Words alone are not sufficient; must be coupled with conduct; can negate apprehension
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Elements of False Imprisonment
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- An ACT/omission by D that CONFINES or restrains
- To a BOUNDED AREA (no reasonable means of escape known to plaintiff) - Intent - Causation - AWARE of confinement OR suffered CONCRETE HARM from confinement |
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Elements of Intentional Infliction of Emotional Distress (IIED - a fallback)
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- Act by D amounting to extreme and outrageous conduct
- Intent or Recklessness - Causation AND - Damages: sever emotional distress |
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Conduct will be Extreme and Outrageous if it:
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transcends all bounds of decendy. Or, if
- conduct continuous/repetitive - D as an inkeeper/common carrier - Plaintiff is a member of a fragile class (children, elderly, pregnant) |
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IIED is the only tort to the person that requires
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Damages (severe emotional distress - proof of physical injury NOT required)
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Bystanders may recover for IIED if
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1. Present when the injury occurred
2. Close relative to injured person AND 3. D knew facts 1. & 2. |
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Elements of Trespass to Land
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- Physical invasion of plaintiff's real property
- Intent (to enter that particular land) - Causation |
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Trespass of intangible matter (i.e. sound, smell) more likely to give rise to claim of
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Nuisance
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"Property" in Trespass to Land includes
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Surface, Airspace, and Subterranean space for reasonable distance
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Elements of Trespass to Chattels
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- An act by D that interfers with Plaintiff's right of possession
- Intent - Causation - Damages (actual damages, includes damages to possessory right) |
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Elements of Conversion
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- Act by D that interfers with plaintiff's right of possession
- Interefence is Serious enough to require D pay full value for chattel - Intent - Causation |
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Subject matter of conversion
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Tangible and intangibles reduced to physical form (i.e. promissory note)
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Potential plaintiff's in an action for Conversion
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Anyone with possession or the immediate right to posession
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Remedies for Conversion
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Damages of FMV at time of conversion
OR possession (replevin) |
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Defenses to intentional torts (3)
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1. Consent
2. Self-defense 3. Necessity |
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There is consent if:
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1. Valid
2. Did D stay within the bounds of the consent |
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How do you determine if there is implied consent? What kinds of implied consent are common?
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Objectively
Apparent consent: through circumstances. OR Consent by law: The law will deem consent to save plaintiff from substantial harm (consent to enter property to stop fire form burning house down) |
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Three questions to ask when dealing with Self-Defense
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1. Is the threat IMMINENT (hasn't already occurred)
2. Does D posses a REASONABLE BELIEF in the tortuous invasion AND 3. Was the PROPER AMOUNT OF FORCE used to counter (rule of symmetry) |
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Defense of others:
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One may use force to defend another when the actor REASONABLY BELIEVES that the other person could have used force to defend himself.
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When may you use self defense to protect your property?
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If you use REASONABLE FORCE in prevention of harm to property.
OR If you use REASONABLE FORCE to regain possession from another who tortiously dispossessed the owner of chattels (hot pursuit). |
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You cannot use self defense against a person who:
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Has a privilege to enter on the land of another b/c of necessity or recapture of chattels.
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You may only use force to recapture chattel from:
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Tortfeasor or some third party with knowledge;
not from an innocent third party |
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Defense of necessity is limited to what kind of torts
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Property torts only
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When is Necessity a defense?
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When it is REASONABLY AND APPARENTLY necessary to avoid THREATENED INJURY that is substantially more serious than the invasion that is undertaken to avert it.
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Public Necessity & Private Necessity
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Public: act is for public good.
Private: Act is solely to benefit a limited number of people. Actor must pay for damages he caused to property. |
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Elements of Defamation
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(i) Publication of
(ii) Defamatory language (iii) "Of or concerning plaintiff" (iv) that is damaging to plaintiff's rep. |
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If the defamation involves a matter of public concern, the π must also establish:
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(i) that the statement is false, and
(ii) that the publisher is at fault. |
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Defamation of a deceased person
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Is not actionable
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"of and concerning" the π if language refers to a group
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Would a reasonable person understand that the defamatory statement referred to the π?
- Small: each can allege "of and concerning" - Large: none can allege |
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Publication requirement for defamation
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It is the intent to publish that is the requisite intent.
Publication must be to someone other than the π. |
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Type of damages for slander
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Plaintiff must prove special damages (pecuniary loss).
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Type of damages for libel
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General damages presumed; no need to prove special damages (radio is libel).
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Slander per se categories that do not require proof of special damages:
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1. Adversely reflect on one's conduct in a business/profession
2. One has a loathsome diease 3. One is/was guilty of a crime involving moral turpitude OR 4. A woman is unchaste |
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No cause of action for defamation if the statement is of public interest and it is:
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True;
Consider instead IIED or invasion of right of privacy (unless plaintiff is a public figure) |
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Defamation of Public Figure, must show falsity (because of public interest) and
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Malice:
- Know the statement was false OR - Reckless Disregard for falsity |
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Defamation of private individual with a matter of public concern must show falsity, and
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Negligence regarding falsity
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Defenses to defamation
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1. Consent
2. Truth (in cases of purely private concern, π is not required to prove falsity, ∆ may prove truth as a complete defense). 3. Absolute Privilege: judicial/executive/legislative proceedings. 4. Qualified Privilege: Public interest, Reports of public proceedings. |
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Invasion of Right to Privacy:
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1. Appropriation of Plaintiff's picture or name
2. Intrusion upon plaintiff's affairs or seclusion 3. Publication of facts placing plaintiff in false light 4. Public disclosure of private facts about plaintiff |
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Appropriation of Plaintiff's picture or name
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UNAUTHORIZED use for defendant's COMMERCIAL ADVANTAGE
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Intrusion upon plaintiff's affairs or seclusion
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Must be private affairs; Prying or intruding that would be highly offensive to a reasonable person.
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Publication of facts placing plaintiff in false light
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Attributing views to plaintiff he doesn't hold or actions he didn't take; must be highly offensive to a reasonable person
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Public disclosure of private facts about plaintiff
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Accurate but confidential information (i.e. medical records); widespread dissemination about plaintiff that would be highly offensive to the average person; newsworthy exception
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Intentional Misrepresentation Prima Facie Case
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(i) Misrepresentation of a material fact
(ii) Scienter (knew or believed it was false) (iii) Intent to induce π to act in reliance (iv) Causation (actual reliance) (v) Justifiable reliance, and (vi) Damages |
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Interference with Business Relations Prima Facie Case:
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(i) Valid K relationship
(ii) ∆ knows of relationship (iii) intentional interference inducing breach (iv) damages |
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Duty of care extends to
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All foreseeable plaintiffs under the circumstances
(including rescuers, viable fetuses, & intended beneficiaries of economic transactions) |
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Standard of care
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Reasonable person - gotta do as a good as a reasonably prudent person
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Particular standards of care
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- Professionals
- Children - Common Carriers & Innkeepers - Emergency actors |
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Standard of care among professionals
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A member of the profession or occupation in good standing in similar communities.
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Standard of care among childen
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Of like age, education, intelligence, and experience; UNLESS engaged in adult activities, then held to reasonably prudent person (adult).
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Standard of care among Common Carriers and Innkeepers
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Plaintiff must be a customer; Held to a high degree of care; Liable for slight negligence
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Duty of possessor of land to those off premises
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No duty regarding natural conditions (except trees, exam favorite);
duty for unreasonably dangerous artificial conditions |
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Duty of possessor land to those on premises - status of entrant
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- Trespassers
- Licensees - Invitees |
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Undiscovered trespassers
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Always lose. No duty is owed to undiscovered trespassers.
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Discovered or anticipated trespassers
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Landowner must WARN or MAKE SAFE
- Concealed - Artifical conditions - Known to the landowner - Risk of death/serious bodily harm |
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Attractive Nuisance Doctrine: Landowner must exercise ordinary care if (4)
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1. Dangerous condition on land owner should know of
2. Owner knows/should children frequent the condition 3. Condition is likely to cause injury (child unlikely to appreciate the risk) 4. Expense of remedy is slight compared with magnitude of risk |
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Licensee: Status and Duty.
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Enters with owner's permission for her own purpose or business rather than for landowner's benefit (social guest, firefighters, police).
Landowner must WARN: - Known conditions - unreasonable risk of harm - entrant is unlikely to discover |
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Invitee: Status and Duty.
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In response to invitation from landowner, for purpose of landowner's business, or land held open to public.
Landowner must WARN: - Known conditions - unreasonable risk of harm - entrant is unlikely to discover AND - make reasonable inspections |
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Lessor/Lessee Duty of Care
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Lessee has a general duty to maintain the premises.
Lessor must warn of existing defects he should know about, and which he knows lessee is not likely to discover. |
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A statute's specific duty may replace the more general common law duty of care if (4)
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Class of Person
Class of Risk 1. It provides for a criminal penalty 2. It clearly defines the standard of conduct 3. Plaintiff is within the protected class AND 4. It was designed to prevent the type of harm suffered by plaintiff. |
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When to not borrow a staute
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- If compliance would be more dangerous (cross double yellow lines)
- If compliance would not be possible (heart attack while driving) |
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Effect of violation of borrowed statute
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Negligence per se: a conclusive presumption of duty and breach, still must prove causation and damages.
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Negligent Infliction of Emotional Distress
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- D creates a foreseeable risk of physical injury to plaintiff. π must be (i) within the zone of danger; and (ii) the π must suffer physical symptoms from the distress.
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Zone of Danger and Physical Injuries reqs not necessary for NIED if:
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1. Closely related parties
2. Plaintiff was present at the scene AND 3. Plaintiff observed or perceived the injury OR 1. Erroneous report of a relative's death 2. Mishandling of a relative's corpse |
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When does one have an affirmative duty to act?
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1. Assumption of duty by acting
2. Peril due to your conduct 3. Special relationship between parties (common carriers, innkeepers) 4. Duty to control third persons (has actual ability to control and knows/should person is likely to commit acts that would require exercise of this control) Example: Ryan is extremely violent, Mitchell knows this, and has the ability to control her actions, so Mitchell has a duty to control a third person. |
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Res Ipsa Loquitur - Plaintiff must show (2)
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1. Accident of type not normally to occur unless someone was negligent
2. The negligence is attributable to the ∆ (in ∆'s possession the whole time) |
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To show negligence attributable to the D in a Res Ipsa claim
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Establish the instrumentality was in D's exclusive control
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Effect of establishing Res Ipsa Loquitur
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π has made a prima facie case for negligence. No directed verdict for the ∆.
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Actual Cause (causation in fact) tests (3)
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- "But for" test
- Joint causes: substantial factor test - Alternative causes approach |
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Joint Cause approach
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Both parties caused the harm;
D's conduct is the cause in fact if it was a substantial factor |
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Alternative Causes approach
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Both parties acted negligently, but only one caused the harm (two hunters fired shots, only one bullet struck π)
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Proximate Cause (legal causation)
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The ∆ is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. FORESEEABILITY. ("plaintiff will prevail IF it was reasonably foreseeable that...")
Limitation on liability |
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If the results are foreseeable, regardless of the foreseeability of the intervening forces:
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D liabile
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Common dependent intervening forces that are foreseeable:
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- Negligence of rescuers
- Subsequent medical malpractice - Injuries caused by another reacting to D's actions - Efforts to protect the personor property - Subsequent disease caused by weekend condition - Subsequent accident caused by original injury |
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Damages for Negligence
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Will not be presumed, no nominal damages allowed for negligence.
π must be compensated for economic and noneconomic harm (pain and suffering). Eggshell Skull says you take your π as you find him. π does have a duty to mitigate. Damages are not reduced just because π received benefits from other sources (like insurance). |
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Punitive damages available where
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D's conduct is "wanton and willfull", reckless, or malicious.
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Cap on punitive damages
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3x actual damages, up to 1 million (except no limit where D was drunk)
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Defenses to Negligence
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Contributory Negligence: traditionally, a complete bar to π's recover. Now, almost all jurisdictions favor (below)
Comparative Negligence: Weigh plaintiff's negligence and reduce damages accordingly; many bar recovery where plaintiff more than 50% liable (partial comparative). Assumption of Risk: if π assumed risk knowingly and voluntarily, denied recovery. |
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Pure Comparative Fault
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Default scheme on the bar. π can recover even if more at faul (greater than 50%) than the ∆.
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Strict Liability Prima Facie Case
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(i) the nature of ∆'s activity imposes an absolute duty to make safe.
(ii) the dangerous aspect of the activity was the actual and proximate cause of the π's injuries AND (iii) the π suffered damage to person or property |
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Common Strict Liability Activities
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Trespassing Animals: Liable for reasonably foreseeable damage.
Wild Animals: liable to licensees and invitees for any injuries caused by wild animals. Domestic Animals: If knowledge of dangerous propensities. Abnormally Dangerous Activities: (i) risk of serious harm even when reasonable care exercised, AND (ii) activity is not a matter of common usage in the community |
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Types of product defect (3)
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1. Manufacturing defect
2. Desgin defect 3. Inadeqaute warning |
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Manufacturing defect
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Product emerges different and more dangerous b/c of the difference; must anticipate reasonable misuse
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Design defect
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ALL products are dangerous There exists a better, hypothectical alternative design that is
- safer - cost neutral - practical |
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Inadequate warning
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Manufacturer's failure to give adequate warnings as to the risks involved in using the product that may not be apparent to users.
Drugs: warnings to "learned intermediaries" (prescribing physician) will usually suffice in lieu of warning patient. |
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Noncompliance with governemnt safety standards
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Will establish defect
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Compliance with government safety standard
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Evidence, but not conclusive, not defective
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Unavoidably unsafe products - not liable if
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- The danger is apparent
AND - No safer way to make the same product |
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Products Liability based on Negligence, Intermediary's duty to inspect
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A wholesaler or retailer's negligent failure to discover a defect does NOT supersede the original manufacturer's negligence, unless the intermediary's conduct exceeds ordinary foreseeable negligence.
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Products Liability based on Strict Tort Liability
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(i) A strict duty owed by a COMMERCIAL SUPPLIER of a product (ii) PRODUCTION or SALE of a defective product (iii) actual and proximate CAUSE, and (iv) DAMAGES
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Products Liability based on Strict Tort Liability - Intermediary's Liability
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Retailer may be liable even if no opportunity to inspect.
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Nuisance
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Private: A SUBSTANTIAL or UNREASONABLE INTERFERENCE with use or enjoyment of property the π actually possesses or has a right of immediate possession.
Public: An act that UNREASONABLY INTERFERES with the health, safety, or property rights of the community. Individual π must suffer unique damages not suffered by the public at large. |
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Doctrine of Resondeat Superior
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An ER will be vicariously liable for tortious acts committed by EE if acts within the scope of the employment relationship.
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Are intentional torts "within the scope of employment"?
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Generally, no. But there are three exceptions.
1. Force is authorized in the employment (bouncer) 2. Friction is generated by employment (bill collector) 3. The employee is furthering the business of the employer (kicking out rowdy customers) |
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Vicarious liability for independant contractors
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Generally not liable, but two exceptions:
Independent Contractor is hired to perform inherently dangerous activities (like blasting). Hired to do a non delegable duty (like the duty to use care in building a fence around an excavation site?) |
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Is the owner of a vehicle vicariously liable for acts committed by a driver?
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Generally, no. But some states have employed specific theories:
- Family/household members driving with consent. - Anyone driving with consent - Negligent entrustment, or negligence when present in car |
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Is a parent liable for the tortious conduct of their children?
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Generally, no. At least not at common law. Exceptions:
- Most states however have made parents liable for WILLFUL and INTENTIONAL TORTS of their minor children up to a certain dollar amount (like $10K) - Child acting as AGENT for parent. - Parent's own NEGLIGENT PERMISSION to do dangerous act. - Parent knows of CHILD'S VIOLENT TENDENCIES but fails to act accordingly. |
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Is a Tavernkeeper liable for acts committed by drunken patrons after they leave?
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Generally, no. But a Dramshop act creates a cause of action in favor of third persons injured by intoxicated patrons.
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When is Joint and Several Liability appropriate?
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Where two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be joint and severally liable (liable to the π for the entire damage incurred).
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