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166 Cards in this Set

  • Front
  • Back
What are the elements of battery?
1. Intentional
2. harmful or offensive
3. contact by defendant with/to/upon the plaintiff's person
What does the battery element "contact w/ plaintiff's person" include?
1. anything the plaintiff is holding, touching, connected with etc.

2. Anything put into motion by defendant (ex. poison)
What are the elements of assault?
Defendant places plaintiff in
1. apprehension
2. of an immediate battery
What does apprehension mean?
Knowledge that a battery is coming. Apparent ability creates a reasonable apprehension if plaintiff knows defendant is unable to commit the battery then not assault (ie plaintiff knows gun isn't loaded)

Watch out for David/Goliath scenario
What must you have to reasonably determine that a immediate battery is about to occur?
Overt Act

Words are not enough without overt act but words can negate an overt act ie conditional words or words that promise action in the future.
What are the elements of false imprisonment?
1. Intentionally (accidental confinement is not False imprisonment)
2. engages in an act of restraint
3. resulting in plaintiff's confinement to a bounded area.
What is an "act of restraint"? (false imprisonment)
1. Threats if a threat would be considered a restraint by a reasonable (not hypersensitive) person.

2. Omission if have prior obligation to help someone move around.
Can a plaintiff be restrained if he doesn't know?
(false imprisonment)
Plaintiff must KNOW of the confinement OR be HARMED by it.
What is a bounded area?
(false imprisonment)
1. plaintiff must be contrained on all sides

2. Area is NOT bounded if there is a REASONABLE means of escapte that the plaintiff can REASONABLY discover. (only way out is dangerous, disgusting or humiliating it will not be reasonable)
What are the elements of IIED?
1. Intentional or Reckless behavior
2. Outrageous Conduct
3. Plaintiff suffers severe emotional distress
What is outrageousness?
"conduct that exceeds all bounds of decency tolerated in a civilized society"

Mere insults are not enough there must be a "plus factor"
What are the three common "plus factors" that make a defendant's conduct outrageous?
1. Conduct is continuous or repetitive

2. If Defendant is a common carrier or innkeeper, he will be held to a higher standard of curtesy and mere rudenesss will be considered outrageous

3. Plaintiff is a member of a fragile class of persons

4. Defendant knew about plaintiff's hypersensitivity/emotional vulnerability.
What are the four classes of fragile persons?
(IIED outrageousness plus factors)
1. Young children
2. Elderly
3. Pregnant women (defendant must know plaintiff is pregnant)
4. Racial, religious, ethnic or sexual minorities if specific derogatory epithets are used.
What are the elements of trespass to land?
1. Intentional (volitional entry doesn't have to have knowledge that act was trespassory)
2. Physical invasion
3. of land of another
What are the two ways to physically invade land?
1. go onto the land
2. throw/propel a tangible object onto tthe land (intangible objects might be nuisance but is not a trespass)
What are the elements of trespass to chattels and conversion?
1. Intentional interference
2. with a tangible item of personal property
What is the difference between trespass to chattels and conversion?
Degree of interference and Remedy

Conversion - Significant or extensive interference (you break it you bought it.) Entitled to full market value of the property.

Trespass to Chattels - modest or slight interference.
What are the three main affirmative defenses to intentional torts?
1. Consent
2. Defense of self, others or property.
3. Necessity
Consent is a valid defense to what intentional torts?
All of them.
Who can give consent?
A plaintiff with legal capacity.
What are the two kinds of consent?
1. Express
2. Implied
What is express consent?
Literal words spoken or written by the plaintiff.
When is express consent void?
1. When it was given as a result of fraud or duress.

ex. consent to sex negated by failure to disclose STD.

2. When defendant exceeds the scope.
What are the two types of implied consent?
1. Consent by custom and usage - plaintiff participated in an activity which is usually accompanied by batteries or other torts ex. drs. office, playing sports (consent to anything that is usual or routine).

2. Defendant's reasonable interpretation of the plaintiff's objective conduct. (plaintiff's subjective thoughts are irrelevant)
When is implied consent void?
When defendant exceeds the scope.
When can defense (of self, others or property) be invoked as an affirmative defense?
1. Timing - plaintiff's conduct is in progress or imminent. No revenge allowed.

2. Reasonable belief that threat is genuine. (reasonable mistake will not invalidate)
How much force can be used in defense?
What is necessary to respond to the threatened tortious conduct but cannot use excessive force.

Can use deadly force when LIFE is in jeopardy. (never available for property)
Necessity only applies to what kinds of torts?
Property torts
What are the two kinds of necessity?
1. Public Necessity
2. Private Necessity
What is public necessity?
where defendant interferes w/ plaintiff's property in an emergency to protect the community as a whole or a significant group of people.

What is private necessity?
Defendant invades plaintiffs property to protect an interest of his own.
What kind of defense is private necessity? What does that mean?
Limited or qualified defense.
3 consequences:

1. Defendant must pay for actual harm done
2. Defendant is not liable for nominal or punitive damages
3. Defendant is privileged to remain ont the plaintiff's land in a position of safety as long as the emergency continues.
What are the elements of defamation?
1. Defamatory statement that identifies the plaintiff
2. Published
3. Damages (maybe)
What makes a statement defamatory?
Allegation of fact pertaining to the plaintifff that reflects negatively on a character trait.(mere insults are not enough)
What is publication?
Defendant must tell at least one other person (doesn't have to be intentional)
How are damages determined in defamation cases?
Depends on the type of defamation.

Libel - don't have to prove damages

Slander must prove economic damages (emotional/mental not enough) UNLESS the slander is per se then don't need to prove damages
What are the four types of slander per se?
1. Business or Profession
2. Crime of moral turpitude
3. loathsome disease - leprosy or vd.
4. imputing unchastity in a woman.
What are the three affirmative defenses to defamation?
1. Consent
2. Truth
3. Privilege
What is absolute privilege?
Based on the identity of the defendant.
1. Statements between spouses
2. Members of the Government while engaged in official duties
What is qualified privilege?
b/c of the circumstances or occasion of the speech ie socially useful or a public interest in encouraging candor. ex. job recommendations, statements to the police.
When does a defendant get to plead a qualified privilege?
1. When the defendant is speaking in GOOD FAITH (ie there is a reasonable basis for statements being made.

2. Defendant must confine himself to the relevant privileged areas.
When does the Constitution become involved with common law defamation?
When what defendant said was a matter of public concern.
If defendant's defamatory statement is a matter of public concern what additional two elements must the plaintiff prove to recover?
1. Falsity - in common law falsity is persumed, now plaintiff must affirmatively prove.

2. Fault - how much fault depends on the type of plaintiff involved:

If the plaintiff is a PUBLIC FIGURE then plaintiff must show that defendant either intentionally or recklessly (malice) made the statement.

If the plaintiff was a PRIVATE FIGURE then the plaintiff need only show that the defendant was negligent ie didn't act reasonably to verify the statement.
What are the four privacy torts?
1. Appropriation
2. Intrusion
3. False Light
4. Disclosure of private facts
What is appropriation?
Defendant uses plaintiff's name or likeness for a commercial purpose.

EXCEPTION for newsworthiness
What are the elements of intrustion?
1. Plaintiff has a reasonable expectation of privacy
2. Defendant invades in a way that would be objectionable to the average person.

Physical trespass is not required.
What are the elements of false light?
1. Wide spread dissemination (distinguishes from defamation)
2. of a material falsehood about the plaintiff (doesn't have to be defamatory)
3. that would be objectionable to the average person.

Does NOT have to be intentional
What damages are allowed in a recovery for false light?
mental and emotional harm (diff from defamation which only allows recovery for economic harm)
What are the elements of disclosuree of private facts?
1. widespread dissemination of
2. confidential information (truthful but sensitive or embarrassing)
3. that would be objectionable to an average person.

Newsworthy exception for journalists.
What are the affirmative defenses to privacy torts?
1. Consent
2. Absolute and Qualifed Privilege (from defamation) apply to False Light and Disclosure claims
What are the elements of negligence?
1. Duty
2. Breach
3. Causation (in fact and proximate)
4. Damages
What are the two parts of the duty element?
1. To whom do you owe a duty?

2. How much care do you owe to escape liability?
To whom do you owe a duty?
No duty is due the unforeseeable victim (ie Mrs. Palsgraf) because they are outside the ZONE OF DANGER. (Cardozo)

How much care do you owe to escape liability?
As much as a REASONABLE PRUDENT PERSON acting under similiar circumstances.

Objective standard ie it doesn't allow for individual attributes or handicaps.
What are the two exceptions to the general statement that the RPP is an objective standard that doesn't allow for individual attributes or handicaps?
1. Superior knowledge - increases the duty the defendant owes to that of a RPP with that superior knowledge. (can be either a body of knowlege ie lawyer or an isolated fact)

2. Physical Characteristics if they are relevant to the case changes the duty the defendant owes to a RPP with that physical characteristic
What are the six special standards of care that trump the RPP standard?
1. Duty of care owed by children
2. Duty of care owed by professionals
3. Duty of care owed by Land possessors
4. Duty of care owed by statute
5. Duty to act affirmatively
6. Negligent Infliction of Emotional Distress
What is the duty of care owed by children under 4 years old?
Children under 4 are incapable of negligence (owed no duty)
What is the duty of care owed by children from 4-18?

What is the exception?
Children from 4-18 owe the care of a hypothetical child of similiar AGE, EXPERIENCE AND INTELLIGENCE acting under similiar circumstances. (extremely subjective and flexible)

Exception: if a kid is engaged in an ADULT ACTIVITY he will be held to the RPP standard.
What is the duty of care owed by professionals?

In order to establish must bring in an expert.
What are the two potential causes of accidents that occur to a person who comes onto the property of another?
1. By an activity of the possessor of his agents

2. By encountering a dangerous condition on the land.
What is the duty of care owed by a land possessor to a person who comes onto the land if that person is hurt by an activity of the possessor or his agents? Exception?

Exception: an undiscovered trespasser is owed NO duty of care.
What are the four types of entrants onto land?
1. undiscovered trespassers
2. discovered trespassers
3. licensees
4. invitees
What is an undiscovered trespasser?
person who comes onto the land w/o permission that the possession doesn't know about.
What duty of care does a land possessor owe to an undiscovered trespasser for an injury due to a dangerous condition on the land?
NO duty.
What is a discovered trespasser?
person doesn't have permission to be on the land but the possessor knew or should have know the trespassors were there.
What duty of care does a land possessor owe a discovered trespasser who is injured by a dangerous condition of the land?
Land possessor has a duty to protect the discovered trespasser if the condition meets a four part test:
1. Artificial condition
2. Highly dangerous
3. Concealed
4. Possessor knew about the condition.

ie Possessor protects from known manmade death traps
What is a licensee?
A person who enters the land with permission but not to confer an economic benefit on the possessor ex. party guest.
What duty of care does a land possessor owe a licensee who is injured by a dangerous condition of the land?
Possessors owe a duty to protect if the condition was:
1. Concealed
2. Known by the possessor

ie Possessor protects from all known traps.
What is an invitee?
person who enters the land to confer economic benefit on the possessor ex. store customer OR because the land is open to the public at large.
What duty of care does a land possessor owe an invitee who is injured by a dangerous condition of the land?
Possessors owe a duty to protect if the condition was:
1. concealed
2. possessor either knew OR could have discovered through reasonable (one that an RPP would make) inspections.

ie Possessor protects from all reasonably knowable traps.
What duty of care does a land possessor owe a child trespasser who is injured by a dangerous condition of the land?
RPP when a child is injured by an artificial condition of the land. When considering what an RPP would do can consider the age and maturity of the kids.
If a possessor owes a duty to protect an entrant onto his land, how does he satisfy the duty?
1. Fix the problem
2. Give a warning (b/c changes the concealed hazard to a known one)
When does a statutory violation (criminal) becomes negligence per se?
1. When the plaintiff is in the CLASS OF PERSONS the statute is designed to protect


2. Accident/Injury was the CLASS OF RISK the statute was trying to prevent.

Class of Person/Class of Risk Test.
What are the two exceptions to the class of person/class of risk test?
1. If compliance wit the statute would be more dangerous then the violation

2. If compliance was impossible under the circumstances.

If either of two exceptions occur then use RPP standard.
What duty does a person have to act affirmatively? Exceptions?

Exceptions which trigger a duty to rescue reasonably under the circumstances:
1. preexisting relationship
2. If defendant put plaintiff in peril
3. If defendant opts to rescue (many states alter this rule with Good Samaritan laws)
What are the two types of negligent infliction of emotional distress (NIED)?
1. Near-miss
2. Bystander
What are the elements of near-miss NEID?
1. Plaintiff was in a zone of phsyical dangeer b/c of defendant's negligent act.

2. plaintiff suffered physical manifestations of their distress
What is bystander NEID?
When a defendant negligently injures person A, plaintiff B is saddened by injury to A.
What are the elements of bystander NEID?
Plaintiff must show proximity in:
1. Time (saw injury to other)
2. Space (right near)
3. Relationship (close family member)
What are the two parts to the breach element of negligence?
1. Identifying the specific wrongful behavior

2. Arguing why the behavior was wrongful

Ex: "Defendant was unreasonable b/c he....This was unreasonable b/c reasonable people...."
What is Res Ipsa Loquitor?
"The thing stands for itself"
When a plaintiff cannot identify the specific wrongful conduct that injured him.

RIL gets you to a jury but a jury is free to reject the RIL inference.
What must the plaintiff show to be able to use Res Ipsa Loquitor?
1. Accident is one NORMALLY associated with negligence

2. The accident is normally due to the negligence of someone in defendant's position. (Typical defendant had control)
What is factual causation?
The connection b/w defendant's breach and plaintiff's ultimate injury.
What is the primary test for factual causation? When is it applicable?
But-for test - but-for the defendant's negligence the plaintiff wouldn't have been harmed. Applicable when there is only one defendant.
What are the two tests for factual causation when there is more than one defendant?
1. Substantial Factor Test - each defendant is liable if their individual breaches were alone capable of causing the injury. (Merging forest fires)

2. Unascertainable cause - if there are two or more defendants and only one is at fault but can't figure out which one, the burden of proof shifts to the defendants to prove that they are not the cause. If defendant's cannot discharge their burden they will both be held jointly and severally liable.
What is legal or proximate cause?
Fairness test ie is it fair for the defendant to be held liable.

Determine fairness by using foreseeablity. It is fair for the plaintiff to be held liable for foreseeable consequences but not for unforessable consequences
What is a direct cause fact pattern and when is a defendant liable?
Defendant breaches then plaintiff gets hurt. Injuries are always foreseeable unless outcome is FREAKISH AND BIZARRE
What is an indirect cause fact pattern and when is the defendant liable?
Defendant breaches then additional stuff happens then the harm.

There are four well-settled categories in which the defendant is liable fore the results. Those four categories are:
1. Intervening medical negligence (dr. is also liable)
2. Intervening negligent rescue
3. Intervening protection or reaction
4. Subsequent disease or accent.

If indirect cause is not on ablve list then look at the breach and ask "what am I afraid might happen if defendant breaches?" If the resulting injury is what you are afraid of then it is foreseeable and the defendant is liable.
What is the eggshell skull doctrine?
Once the plaintiff has established all the other elements of negligence then entitled to any and all damages he suffered even if surprisingly huge.

You take your plaintiff as you find him.
What are the two traditional common law defenses to negligence?
1. traditional contributory negligence - if plaintiff is at all at fault then barred from recovery.
2. assumption of risk

Both theories mostly abolished
What is comparative negligence?
When plaintiff's own failure to be a RPP or follow statutes contributes to his injury. Plaintiff's recovery will be reduced by the percentage at fault he is.
What are the two types of comparative negligence? How do they work?
1. Pure Comparative Negligence: plaintiff's recovery is reduced by the percentage at fault he is, doesn't matter if he's 99% at fault, will recover 1%.

2. Modified Comparative Negligence: if the plaintiff is more than 50% at fault then he will recover nothing, if less than 50% at fault will recover less the % he was at fault.
What are the three categories of activity where strict liability applies?
1. Injuries caused by animals
2. Abnormally dangerous activities
3. Defective products
What theory of liability should the plaintiff use if he is injured by defendant's domesticated animals?
Negligence UNLESS the defendant knew of the animal's vicious propensities then strict liability. (ie if dog already bit someone)
What theory of liability will plaintiff use if he is injured by a defendant's wild animal or trespassing cattle?
Strict liability
What is an abnormally dangerous activity?
(strict liability)
1. Activity poses a risk of serious harm even when reasonable care is being exercised.

2. Activity is not a matter of common usage in the community
When will a defendant be found strictly liable when a plaintiff is injured by an abnormally dangerous activity?
If the injury occurred because of the kind of accident that made the activity abnormally dangerous. (ex. strict liability applies if plaintiff is blown up by dynamite, negligence if plaintiff injured when stick of dynamite falls on his foot)

Safety Precautions are IRRELEVANT
What four elements need to be present for strict liability to apply when a plaintiff is injured by a defective product?
1. Defendant was a merchant (every merchant in the chain of distribution can be held strictly liable)
2. Product was defective
3. Product has not been altered since it left defendant's hands
4. Plaintiff was using the product foreseeably.
Who is a merchant for the purposes of imposing strictly liability for a product defect?
Someone who:
1. routinely deals (casual sellers don't count)
2. in products of this type (sellers who provide this product collaterally don't count ie restaurant not strictly liable for broken chair)

Commercial lessors are merchants
What are the two types of product defect?
1. Manufacturing defect
2. Design defect
What is a manufacturing defect?
When a product departs from intended design in a way that is more dangerous then consumers would expect.

What is a design defect?
1. If an alternate product design is safter, economical and practical then first version is defective.

2. If a product has residual risks that a consumer would not be aware of and fails to effectively warn the consumer.
What is the presumption if a product has traveled in normal channels?
(strict liability - defective product)
Presumption is that the product has NOT been altered if it traveled in normal channels shifting the burden of proof that alteration has occurred to the defendant.
What is the affirmative defense to strict liability?
comparative negligence.
What is nuisance?
When the defendant unreasonably interferes with plaintiffs ability to use and enjoy his property.
What is vicarious liability?
When liability is imposed on someone for a tort committed by someone else.

**before looking for vicarious liability see if defendant can be liable on his own.
When is an employer liable for torts committed by an employee? Exception?
When employee commits the tort WITHIN THE SCOPE OF EMPLOYMENT.

Exception: Employer not liable for INTENTIONAL torts committed by an employee UNLESS: (1) employment involves use of force (bouncer) (2) the job generates friction (repo man) (3) employee commits the tort under a misguided attempt to server the employer's interests.
When is a hiring party liable for torts committed by independent contractors?
Not Liable EXCEPT when an independent contractor injures an invitee (non-delegable duty)
When is an owner vicariously liable for the torts of the dirver of his car?
Not liable unless the driver is running an errand for the owner.
When is a parent liable for the torts of his kids?
When can a joint tortfeasor be fully indemnified (ie get all his money back)?
1. If he was vicariously liable, can get full indemnification from the active tortfeasor.

2. A non-manufacturer can get full indemnification from a manufacturer.
What is loss of consortium?
When a the spouse of a tort victim sues the tortfeasor for:
1. loss of household services
2. loss of society
3. loss of sex.
In DE, can a corporation be liable for battery?
Yes. A corporation is liable for the acts of its president if the present WAS the corporation.
Moore v. Licciardello
What duty does a defendant have to retreat in order to claim self-defense?
Non-deadly force: no duty to retreat
Deadly force: must retreat UNLESS in your own home OR (in DE) your place of work (unless you're the initial aggressor)
What is the theshold in DE for awarding punitive damages in torts?
Defendant's conduct is wanton or a wilful disregard for the rights of the plaintiff
When will punitive awards be reduced?
When they shock the conscience of the court.
In DE, punitive damages for medical malpractice are limited by statute, what is the statute and what does it say?
18 Del. C. 6855 - punitive damages may only be awarded where the injury was maliciously intended or was the result of willful or wanton misconduct.
In DE, if have other reasonable options, can you invoke the doctrine of private necessity?
Berns v. Doan - plaintiff injured when defendant tried to turn around in plaintiff's driveway
In DE, What is the standard of care owed by professionals?
Must possess the knowledge and skill of a member of the profession in good standing.
In DE, what is the standard of care owed by children?
the degree of care which children of the same age, maturity and capacity would be expected to exercise.

In DE, no age where a child is per se too young to act negligently but there is a rebuttable presumption that a 4 1/2 year old was too young.
DE has two statutes that impose vicariously liability on parents for the acts of their children, what are the statutes?
1. 21 Del. C. 6105 - imposes vicariously liability for the negligence of a minor driving a motor vehicle on a highway, to the person that signed his license.

2. 21 Del. C. 6106 - imposes vicarious liability on the owner of a motor vehicle who causes or knowingly permits a minor under the age of 18 to drive the vehicle.
In DE, violation of what is considered negligence per se?
state statutes, and regulations but NOT federal regulations or state licensing statutes.
DE follows the but-for test for causation except where preexisting injuries were aggravated on the job then DE determines causation by....?
Determining if the work conditions were the SUBSTANTIAL CAUSE of the aggravated injuries
In DE, who can claim NEID?
Plaintiff who was in the "zone of danger" and as a result suffered physical consequences.

DE does NOT allowed NEID for bystanders.
What are the elements of intentional misrepresentation?
1. Misrepresentation of a material fact (silence is gnerally not enough)
2. Scienter - when defendant made the statement she knew or believed it to be false
3. Intent to induce plaintiff to act or refrain from acting in reliance
4. causation - actual reliance
5. justifiable reliance
6. damages - actual pecuniary loss
What are the elements of negligent misrepresentation?
1. misrepresentation by a defendant in a business or professional capacity
2. breach of a duty toward a particular plaintiff (or specific class of of plaintiff)
3. causation
4. justifiable reliance
5. damages
In DE, expert medical testimony is required to establish negligence and causation even when Res Ipsa Loquitor is used to establish breach except....
The "duh" cases

1. a foreign object was left in the patient's body
2. an explosion or fire occurred during treatment
3. surgery was done on the wrong patient or body part.

In the above cause a rebuttable inference arises that the injury or death was caused by negligence.
In DE, how is the unascertainable cause test different then the MS?
In a situation where there are two or more defendants and cannot figure out who caused the injury.The unascertainable cause test shifts the burden of proof to the defendants to prove they were not the cause of the plaintiff's injury.

MS: if they can't discharge the burden they are held jointly and severally liable.

DE: recovery is denied.
What is the rule in DE is evidence is destroyed/spoiled?
An ADVERSE INFERENCE could be drawn against a party who destroyed, spoiled or lost evidence BUT ONLY IF THAT PARTY had acted RECKLESSLY OR INTENTIONALLY
Sears, Roebuck and Co v. Midcap.
What is an affidavit of merit and when is it applicable?
Medical malpractice suits alleging healthcare negligence must include an affidavit of merit signed by a qualified medical expert including the experts opinion that there is a reasonable ground for believing the defendant breached the standard of care, and the defendant's breach was the cause of the harm.
What kind of comparative negligence does DE use?
Modified Comparative Negligence - where plaintiff was over 50% negligent cannot recover.
How does DE interpret assumption of risk?
By splitting into two categories:
1. Primary assumption of risk: plaintiff waives defendant's duty by agreeing to take his chances with a known risk.

2. Secondary Assumption of Risk - plaintiffs conduct in encountering a known risk is unreasonable (like comparative negligence)
What is the DE firefighter's rule?
An injured firefighter can't recover from a negligent party UNLESS:
1. failure to warn of pre-existing hidden defects, where there is knowledge of the danger and an opportunity to warn
2. acts occurring after the firefighters arrival or from perils separate from what makes firefighting dangerous
3. the defendant acted intentionally (arson)
In DE, what is failing to wear a seat belt evidence of?
defending against a plaintiff's allegation of defective seat design or some other relevant issue but not relevant on the issues of comparative negligence, assumption of risk or mitigation of damages
What is the Guest Premises Statute? (DE)
States that neither an adult trespasser or an adult licensee have a cause of action for injuries on land of another UNLESS the accident was intentional on the part of the owner/occupier OR was caused by the willful or wanton disregard of tthe rights of others.

Both licensees and trespassers are DIRT.

Restricted to private residential premises and has no effect on public property.
In DE what is a land possessors duty to a child trespasser or licensee?
Attractive Nuisance doctrine of RPP applies but DE hates so will work to find that attractive nuisance doctrine doesn't apply
Who does NOT fall under the Guest Premises Statute? (DE)
1. entrants onto public property
2. children
3. guests of tenants
4. invitees
What duty of care is owed invitees in DE?
Reasonably Prudent Person hinging on foreseeability and what a defendant knew or should have known
In DE, what duty does a general contractor owe an independent contractor on the worksite?
No duty UNLESS the general contractor:
(1) actively controls the manner and method of performing the contract work
(2) voluntarily undertakes the responsibility for implementing safety measures
(3) retains possessory control over the work premises during work.
What liability do commercial or social servers of alcohol have when injury results to the person they served or a thrid person?
Plaintiff is a business invitee AND the drinking created a dangerous condition on the land AND the injury occurred on the premises.
DiOssi v. Maroney.
In DE, a plaintiff seeking recovery for injury from a defective product can recover under what theories? Why?
Negligence or under the UCC breach of implied warranty.

NO strict liability because DE Supreme Court held that when DE adopted the UCC it preempted strict liability for sale of defective goods (if suing for LEASE of defective goods can also sue under strict liability).
What is DE's implied warranty of merchantability?
general warranty that guarantees that the product will be fit for its ordinary uses.
What is DE's implied warranty of fitness for a particular purpose?
Where the seller has reason to know that goods are going to be used for ANY purpose and buyer is relying on seller there is an implied warranty that the goods will be fit for such a purpose.
In DE who may recover for injury by defective products?
All natural persons (therefore corporations can't recover for property damage)
In DE, what may an owner of a defective product recover if he is neither injured nor sustains property damage?
Recovery is limited to contract and implied warranty.
What is the sealed container defense?
Where a product is encased or sold in a manner where it is unreasonable to expect the seller to discover the defect then the seller will not be liable UNLESS: (1) manufacturer is not available OR (2) the seller made express warranties of safety
Describe the DE Workers' Compensation Act.
The exclusive remedy against employers for employees injuries arising in the work context EXCEPT when willful conduct is directed at an employee for personal reasons and not because of employment ie personal animus boots out of workplace context.
In DE, do injuries from workplace horseplay fall under Workers' Comp?
If the court decides that the horseplay falls outside the scope of employment, then workers comp will not apply and the injured party can sue the co-workers.
What is the four factor test the DE Supreme court adopted in Grabowski v. Mangler to test whether conduct was horseplay and therefore just recoverable under Workers Comp?
1. Extent of the Deviation
2. Whether the deviation was part of the performance of a duty (or abandonment of it)
3. the extent to which horseplay was accepted on the job
4. wehther the nature of the job might be expected to include some horseplay.

In DE who has standing to recover for wrongful death?
10 Del. C. 3724

the surviving spouse, parent, children, and siblings OR if none such exist to those related by blood or marriage.
In DE what damages may be recovered for wrongful death?
Pecuniary loss or mental distress.

Mental Distress: parents may recover onlly if there is no surviving spouse or children; and siblings may recover if there is no surviving spouse, children or parents.

spouse/children then parents then siblings
How does DE approach loss of chance?
loss of chance is recoverable when dealing with wrongful death UNLESS the decedent had less then 50% chance of survival to start with
United States v. Cumberbatch
What is DE's survival statute?
all causes of action, except actions for defamation, malicious prosecution or penal statutes shall survive any of the parties' death
Explain DE soveriegn immunity.
State of DE retains sovereign immunity UNLESS expressly waived by the purchase of insurance for the event.
How do you determine if a municipality or county has waived sovereign immunity?
1. Presumption is immunity
2. Decide whether action is ministerial or discretionary.
3. If discretionary no waiver. If ministerial must look to see if action falls with in one of the three exceptions
4. If does fall within exceptions, look to insurance limits.
What is a discretionary act? What is a ministerial act?
(DE - municipal sovereign immunity)
Discretionary act - policy or decisions on how to carry out that require judgment

Ministerial act - carrying out of a policy.
What are the three exceptions to municipal sovereign immunity? (DE)
1. ownership, maintenance or use of any motor vehicle, mobile equipment, trailer, aircraft or other machinery and equipment (interpreted narrowly)
2. construction, operation or maintenance of any public building (NOT sidewalks/highways)
3. Discharge of toxic substances like smoke, chemicals, contaminants.
What is DE's good samaritan law?
one who volutarily helps someone w/o expectation of payment is immune from damages unless the resuer's conduct is wilful, wanton or reckless OR is rendered on the grounds of a hospital or a clinic.
What is the statute of limitations for medical malpracticie claims in DE?
2 years UNLESS the condition was unknown or could not in the exercise of reasonable diligence been discovered, then 3 years from the date of the injury. OR if the injured is under six, he can wait until his 6th birthday.
What is the DE savings clause?
when a writ fails for any reason of form, a new action can be commenced w/in 2 years of the determination of the first action. DOES NOT APPLY TO MED MAL
What is the statute of limitations for injuries unaccompanied by force (ie business related torts)? (DE)
3 years EXCEPT defamation and privacy which have 2 year statutes of limitations
What is the statute of limitations for civil suits based on sexual abuse of a minor?
In DE, when does a statute of limitations begin to run?
once the plaintiff knows of her injury, inability to make causal relationship to defendant's inference has no bearing EXCEPTION if no one in the scientific community could make the causal connection then statute tolls until the connection is made.
Brown v. E.I. DuPont Nemours
What is the Uniform Trade Secrets Act? (DE)
displaces tort and restitutionary remedies for misappropriation of trade secrets.

(1) injunctive relief
(2) damages for actual loss and unjust enrichment
(3) punitive damages for wilful and malicious misappropriation not to exceed twice the amount in (2).
(4) 3 year statute of limitations
What is a trade secret such that the Uniform Trade Secret Act applies? (DE)
something with economic value: developed through effort AND deliberately kept confidential
What are the elements of a claim for inducing breach of contract? (DE)
1. valid contractual relationship
2. defendant knew of the relationship
3. defendant intionally and wrongfully interfered with the relationship
4. plaintiff suffered damages as a result of interference.