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100 Cards in this Set
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14 Bar Exam Torts |
1. Intentional Torts
Battery Assault False Imprisonment Trespass to land Trespass to chattels Conversion 2. Harm to economic and dignitary interests Defamation Invasion of right to privacy Misrepresentation Interference with business relations 3. Negligence 4. Strict liability Liability for animals Abnormally dangerous activities 5. Nuisance (public and private) |
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Intentional Torts |
1. Act
The act is a volitional movement by the defendant (e.g. hitting someone during an epileptic fit would not satisfy the requirement) 2. Intent May be specific or general specific intent: the purpose in acting is to bring about specific consequences general intent: the actor knows with "substantial certainty" that the consequences will result. 3. Causation 4. Injury |
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Intentional Torts |
The intent to commit a tort against one person is transferred tot he tort actually committed or to the person actually injured.
Intent may be transferred from person to person and tort to tort |
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Intentional Torts
Torts that the transferred intent rule applies to |
Only applies if the rot intended and the tort resulting are:
1. Assault; 2. Battery; 3. False imprisonment; 4. Trespass to land; or 5. Trespass to chattel |
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Intentional Torts
Incapacitated Defendant Rule |
Everyone is liable for torts! |
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Intentional Torts
Causation |
The injuries must be caused by defendant's act or something set in motion by defendant's act.
Causation is satisfied if the defendant's conduct was a "substantial factor" in bringing about the injury |
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Battery elements
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1. harmful or offensive contact |
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The Supersensitive Plaintiff Rule |
The plaintiff's supersensitivities are irrelevant
**Exception: if the defendant, in fact, knew of them |
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Battery Damages
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Damages not required.
Plaintiff can recover nominal damages if actual damages are not proved. Plaintiff can recover punitive damages for malicious conduct |
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Assault Elements
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1. Act creating reasonable apprehension in P;
2. of immediate harmful or offensive contact to P's person; 3. Intent; and Causation |
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Intentional Torts
Assault: Apprehension *Apprehension v. Fear |
Not intimidation or fear
Apprehension is judged using the reasonable person test. (e.g. Mike Tyson could be in reasonable apprehension of a child) |
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Intentional Torts
Assault: Apprehension *Apparent ability |
Reasonable apprehension is created even if no harm is possible
D is liable for assaulting P with an unloaded gun. |
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Intentional Torts
Assault: Apprehension *Words alone rule |
Words alone are not enough. (D must say words coupled with action.) |
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**Exam Tip
If assault and battery are both options, which wins |
Battery
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Intentional Torts
Assault: Damages |
No damages required
P can recover nominal damages even if actual damages are not proved. Malicious conduct may permit recovery of punitive damages. |
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Intentional Torts
False Imprisonment elements |
1. An act or omission on the part of defendant that confines or restrains P; |
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Intentional Torts
False Imprisonment *Sufficient and Insufficient Methods of Confinement |
Sufficient include: |
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Intentional Torts |
*Time of confinement not relevant, can be very short
**P must know of the confinement OR be harmed by the confinement |
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Intentional Torts
False Imprisonment *What is a bounded area? |
Bounded area
-freedom of movement limited in all directions -No reasonable means of escape known to P |
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Intentional Torts
False Imprisonment *Damages |
Damages not required.
P can recover nominal damages if actual damages not proved Punitive damages recoverable if D acted maliciously |
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Intentional Torts
False Imprisonment *Shoplifting Detentions |
If:
1. Reasonable belief as to theft 2. Reasonable manner of detention (no deadly force), and 3. Detention for a reasonable period of time NO false imprisonment (all hinges on reasonableness) |
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Intentional Torts
IIED elements |
1. Act by defendant is extreme and outrageous conduct;
2. Intent or recklessness 3. Causation; and 4. Damages--severe emotional distress |
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Intentional Torts |
Conduct that transcends all bounds of decency. Conduct that is not normally outrageous may become so if: |
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Intentional Torts |
Actual damages are required (not nominal).
-proof of physical injury not required. -the more outrageous the conduct, the less proof of damages is required ***IIED is the ONLY intentional tort to the person that requires real damages. |
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Intentional Torts
IIED *Bystander Rule |
D intentionally causes physical harm to a 3rd person and P suffers emotional distress because of it. |
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Intentional Torts
Trespass to Land elements |
1. Act of physical invasion of real property |
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Intentional Torts
Trespass to Chattels elements |
1. An act that interferes with plaintiff's right of possession in a chattel;
2. intent; (no intent to trespass required, D's mistaken belief that he owns the chattel is no excuse) 3. causation; and 4. damages |
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Intentional Torts
Trespass to chattels *Types of interference **Damages |
*intermeddling--directly damaging the chattel, or
dispossession--depriving P of possession of the chattel **Actual damages--not necessarily to the chattel, but at least to the possessory right--are required |
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Intentional Torts
Conversion elements |
1. An act that interferes with P's right of possession in chattel
**Interference is so serious that it warrants requiring D to pay the chattel's full value 2. Intent; and 3. Causation |
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Intentional Torts
Trespass to Chattels v. Conversion |
1. Act by Defendant
TTC: Interference with right of possession C: Interference so serious warrants payment of chattel's full value 2. Intent TTC: Intent to do the act that brings about the interference C: Intent to do the act that brings about the interference 3. Remedy: TTC: recovery of actual damages (cost to repair) C: full fair market value of chattel at the time of conversion |
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Intentional Torts: Defenses
Consent analysis |
D is not liable for injuries to P, if P consents to D's conduct. (Note: you cannot consent to a criminal act.)
1. Did P have capacity to consent? (not a very young child, incompetent, or drunk) 2. Was the consent expressly given or implied? -If consent was given, look for: *mistake *fraud *coercion 3. Did D stay within the boundaries of the consent? |
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Intentional Torts: Defenses
Implied Consent |
Apparent consent
-a reasonable person would infer from custom and usage, or P's conduct (e.g. contact in football) -consent implied by law arises when action is necessary to save a person's life or some other important interest in person or property -you can exceed the scope of consent and be held liable (bring a gun to a boxing match) |
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Intentional Torts: Defenses
Self-defense, defense of others, and defense of property *3-part test |
1. is the privilege available
**only available for preventing the commission of a tort 2. is a mistake permissible as to whether the tort being defended against is actually being committed? 3. was the proper amount of force used? |
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Intentional Torts: Defenses
Self-defense *duty to retreat **initial aggressor rule ***3rd party injuries |
When a person reasonably believes that she is being or is about to be attacked, she may use such force as is reasonably necessary to protect against injury
*No duty to retreat **not available to the initial aggressor unless the other party responds to the aggressor's nondeadly force by using deadly force ***may extend to 3rd party injuries (caused while the actor was defending herself) |
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Intentional Torts: Defenses
Defense of Others |
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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Intentional Torts: Defenses |
One may use reasonable force to prevent the commission of a tort against her real or personal property.
*A request to desist must be made first unless it would be clearly futile or dangerous **the defender may use reasonable force. Defender may not use force causing death or serious bodily harm strictly to protect property |
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Intentional Torts: Defenses
Necessity *Public **Private |
A person may interfere with the real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious that the invasion.
*public necessity: when the act is for the public good. it is an absolute, unlimited privilege, no liability is imposed. **private necessity: for the benefit of a limited number of people. limited privilege and defendant is liable for the actual damage caused. -->necessity prevails over defense of property, but defendant is liable for any real damages caused |
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Defamation elements (common law)
Defamation (constitutional) |
1. defamatory statement about P, 2. publication, 3. damage to P's reputation |
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Defamation
Defamatory statement |
defamatory statement of fact
-language tending to adversely affect one's reputation -reasonably understood to be about P |
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Defamation
Publication |
communication to a 3rd person
*maybe intentionally OR negligently made **negligent communication test: was it reasonable to expect others would overhear it? (reasonable foreseeability) ***the person must be capable of understanding the statement (right language) |
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Defamation
Damage to reputation *libel *slander *slander per se |
Libel: written or broadcast (TV/radio) |
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Defamation Defenses
Absolute privileges Qualified privileges |
Absolute privileges
-cannot be lost -communications between spouses -three governmental branches **anything said in the course of litigation that is reasonably related to it will be absolutely privileged Qualified privileges -can be lost if abused -policy concern: reference letter: letter from former professor or employer. (privileged lying) |
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Defamation (constitutional)
Fault of the Defendant |
Public figure plaintiff: intentional or reckless tortious conduct must be shown (negligence not enough)
**actual malice test: statement was made knowing it was false, or with reckless disregard as to its truth or falsity Private person plaintiff: only has to prove negligent tortious conduct **if conduct surpasses negligence, plaintiff can get presumed damages and/or punitive damages |
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Defamation
Fault of the defendant that must be shown *public figure or public official *private person matter of public concern *private person matter of private concern |
*public figure |
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Defamation defenses
*consent |
consent is a complete defense to defamation. Works similarly to consent to intentional torts. |
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Invasion of right to privacy
*Four branches -appropriation by D of P's name or picture for D's commercial advantage -intrusion by D into P's privacy or seclusion -publication of facts placing P in a "false light" -publication of private facts about P |
1. appropriation of P's picture or name
*unauthorized use of P's picture or name for d's commercial advantage (limited to the promotion goods services) 2. intrusion on p's affairs or seclusion *the act of prying or intruding must be highly offensive to a reasonable person (the thing intruded upon must be private--pictures taken in public places do not suffice) 3. publication of facts placing plaintiff in false light *d attributes to p views which he does not hold or actions he did not take (must be something highly offensive to a reasonable person in the circumstances) 4. public disclosure of private facts about p *public disclosure of private information about P. Disclosure must be highly offensive to a reasonable person. Liability may attach even if statement is true |
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Invasion of right to privacy defenses
*consent *defamation privileges |
*consent (see defamation and intentional torts)
*privileges (see defamation privileges) |
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Misrepresentation
*Intentional Misrepresentation (fraud, deceit) elements |
-Misrepresentation of a past or present fact (not an opinion and silence is not enough); |
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Misrepresentation
*Negligent Misrepresentation elements |
See intentional misrepresentation |
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Interference with Business Relations
*prima facie case |
-existence of a valid contractual relationship between P and a 3rd party, OR a valid business expectancy of P; |
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Interference with Business Relations
*Defenses (privileges) |
Existence of a privilege is a question of fact.
1. D's "persuasion" conduct, 2. relationship between the parties -P and D: are they competitors? if so, privileged -D and 3rd party: are they close relatives? is D a lawyer, advisor, etc.? |
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Negligent Torts
*Prima Facie Case *Duty Analysis |
*a duty on the part of D to conform with a specific standard of conduct for protection of plaintiff against unreasonable risk of injury; breach of that duty; breach was the actual and proximate cause of P's injury; and damage
*Duties of care are only owed to foreseeable plaintiffs (P must be within the foreseeable zone of danger) |
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Negligent Torts
*Breach (standards of care) -the reasonable person standard |
-reasonable person under the circumstances |
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Negligent Torts: standards of care
-the children standard |
-children of like age, intelligence, and experience
*subjective standard *individual intelligence is taken into account **Exception: where the child is engaged in adult activity, the reasonable person standard applies |
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Negligent Torts: standards of care
-the professionals standard |
a reasonable professional in the same or similar communities
*the more specialized training the professional has, the higher standard they will be held to |
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Negligent torts: standards of care
Common carrier and Innkeepers standard |
liability for even slight negligence
*P must be passenger or guest |
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standards of care
O/O of land duty to: *undiscovered trespassers *discovered or anticipated trespassers |
*undiscovered trespassers |
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standards of care
O/O of land *attractive nuisance doctrine |
O/O liable if P shows:
-dangerous condition that D knows or should know of; -O/O knows or should know children frequent the vicinity of the condition; -the condition is likely to cause injury (child cannot appreciate the risk); and -the expense of remedying the situation is slight compared with the magnitude of the risk The child DOES NOT have to be attracted onto the land by the dangerous condition |
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standards of care
O/O of land *duty to licensees |
Licensee: on the land for his/her own purpose with O/O's permission (salesman, social guest) |
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standards of care
O/O of land *duty to invitees |
invitee: on the land for the O/O purpose (e.g. O/O is a store owner) |
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O/O of land
*If unclear if P is an invitee or licensee |
treat P as an invitee
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O/O of land
*discharge of duties |
-adequate warning discharges D's duties, or
-very obvious dangerous conditions |
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Negligent torts: standards of care
*statutory standards *effect of noncompliance *defenses for noncompliance |
for the statutory standard to apply: |
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Negligent torts
NIED elements |
P must suffer a physical injury (shock is enough)
P must be within the "target zone" of D's negligent conduct |
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Negligent Torts
Duty to act (4 exceptions) |
No affirmative duty to act, unless: |
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Negligent Torts
Res Ipsa Loquitur *3-part test *effect of res ipsa loquitur |
1. injury would not happen unless someone was negligent |
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Negligent Torts |
1. D's breach was the but for cause of P's injury; |
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Negligent Torts |
D is liable for all injuries that were the foreseeable result of his negligent actions.
*unforeseeable intervening force: D still liable unless intervening force is crime or intentional tort *eggshell skull P: D takes the P as he finds him. the extent of the injuries do not need to be foreseeable, only that the injury could occur |
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Negligent Torts |
Damage will not be presumed (and nominal damages are not available) |
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Negligent Torts -defense to defendant's violation of a statute |
Contributory negligence: negligence on the part of the plaintiff that contributes to her injuries.
Defense to d's violation of a statute *contributory negligence is a defense to defendant's violation of a statute, unless the statute was designed to protect this class of plaintiffs from their incapacity and lack of judgment. (e.g., a child injured after darting into the street in a school zone getting hit by a D who is speeding.) |
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Defenses to Negligence Assumption of Risk (2-part test) |
Plaintiff denied recovery because she assumed the risk of any damage caused by D's act. Requires that:
1. Plaintiff knew of the risk, and 2. voluntarily proceeded in the face of the risk. |
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Defenses to Negligence Implied Assumption of the Risk *When is risk not implied *Defense to intentional torts |
knowledge of risk is implied where the risk is one that an average person would clearly appreciate.
risk is not implied if there is no alternative to proceeding in situations involving fraud, force, or emergency.
implied assumption of the risk is not a defense to intentional torts. But is a defense to willful and wanton negligence. |
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When is there implied assumption of the risk and contributory negligence? (3-part test) |
Plaintiff: 1. unreasonably, and 2. voluntarily, 3. takes on a known risk |
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Negligence Defenses:Effect of Contributory Negligence 1. Contributory Negligence states 2. Comparative Negligence States 2a. Partial Compartive Negligence 2b. Pure Comparative Negligence |
1. Contributory negligence state: P's contributory negligence completely bars recovery.
2. Comparative negligence state: P's contributory negligence reduces the recovery.
2a. Partial comparative negligence state: P cannot recover if P was more negligent than any other party.
2b. Pure comparative negligence state: P can recover even though P was more negligent than the other party.
***Always assume that you are in a pure comparative negligence jurisdiction on the MBE*** |
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Strict Liability Torts Prima facie case |
No standard of care. P must show 1. D had an absolute duty to make safe; 2. the dangerous aspect of the activity was the actual and proximate cause of P's injury; and 3. P suffered damages |
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Strict Liability Torts Liability for animals 1. Trespassing animals 2. Personal injuries (wild animals, domestic animals, as to trespassers) |
1. trespassing animals: a owner is strictly liable for foreseeable damage done by the trespass of his animals.
2. an owner is strictly liable for injuries caused by wild animals; no strict liability for domestic animals unless the owner knows of the animal's dangerous propensities (one bite free rule); strict liability will generally not be imposed in favor of trespassers in the absence of the owner's negligence |
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Strict Liability Torts Abnormally dangerous activities (2-part test) |
1. activity creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and 2. the activity is not a matter of common usage in the community
*injuries must be caused by the abnormally dangerous characteristics of the activity (D not liable under strict liability claim if a dynamite-filled truck speeds and hits someone but the dynamite does not explode).
**D is liable no matter how careful D was being because it is a strict liability tort!! |
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Products Liability Who can be held liable? |
any commercial supplier if P can show:
1. defect causing the injury existed at the time the product left that defendant's control, and 2. plaintiff needs a "workable" theory: negligence or strict liability |
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Products liability Negligence Theories *duty to inspect |
focus is on D's conduct. Possible negligent conduct: 1. negligent design 2. negligent manufacture 3. negligent warnings 4. negligent inspections (res ipsa is available)
duty to inspect: retailers and wholesalers usually satisfy their duty of care through a cursory inspection |
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Products liability Strict liability elements *who can be a defendant |
1. a commercial supplier of a product, 2. producing or selling a defective product "an unreasonably dangerous condition"
*everyone can be sued! indemnification up the chain applies |
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Nuisance 1. Definition 2. Private Nuisance 3. Public Nuisance |
1.Nuisance is not a tort, it a a type of harm. Nuisance actions can be based on intentional, negligent, or strict liability theories
2. Private nuisnce: substantial and unreasonable interference with one's use and enjoyment of land
3. Public nuisance: act which unreasonably interferes with health, safety, or property rights of the community |
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Nuisance Who can bring the action? |
Private: P must have possesion or the right to immediate possesion of the land
Public: P can recover only if she has suffered a unique damage no suffered by the public. |
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Nuisance Standard |
Objective. The conduct must be objectionable to an average person (e.g., not specific to P's allergies) |
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Nuisance Can P come to the nuisance and win the law suit? |
Yes, it doesn't matter if P came to a preexisting nuisance |
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Nuisance Balancing test |
unreasonable interference if: the severity of the injury to P outweighs the utility of D's conduct |
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Vicarious liability Respondeat Superior Intentional Torts |
Respondeat Superior: Employers will be held vicariously liable for the actions of their employees if the tortious acts occur within the scope of the employment relationship.
1. Intentional torts: generally not within the scope of employment, unless. a. authorized by employer (bouncer), b. generated by employer (bill collector), or c. furthering the business of the employer (removing rowdy customers). |
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Vicarious Liability Car Owners/Drivers |
Car owners are not vicariously liable for the torts of other drivers. Except:
1. family car doctrine: household member using the car with permission, or
2. permissive use doctrine: anyone using with permission |
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Vicarious Liability
Parents/Children |
Parents are not vicariously liable for the torts of their children.
But many states make parents liable for the wilfull and intentional torts of their children by statute (up to a fixed dollar amount). |
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Joint and several liability |
where 2 or more negligent acts combine to proximately cause an injury, each negligent actor will be liable to P for the entire damage incurred.
*if the injury is divisble, each D is liable only for their identifiable portion |
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Ds acting in concert |
where 2 or more Ds act in concert and injure P, each is jointly and severally liable, even if the injury is divisible. |
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contribution |
allows a D who pays more than his share of the damages under joint and several liability to have a claim against other jointly liable parties for the excess (apportions responsibility) |
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Contribution and intention intentional torts |
contribution is not allowed among intentional tortfeasors |
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Indemnification |
D can get entire award amount back from other defendant(s) |
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When indemnifation applies |
1. by contract 2. vicarious liability situations 3. the other D is a lot more responsible 4. under strict products liability |
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comparative contribution |
Defendants split up judgment according to "relative fault" (rather than each D being liable for the full amount) |
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Survival and Wrongful Death |
Derivative recoveries, you will recover no more than the decendent would have if he/she had lived. |
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Survival of torts actions |
allow one's cause of action to survive the death of the party. Applies to torts to property and personal injury torts.
Does not apply to torts invading intangible personal interests (defamation, invasion of right to privacy, malicious prosectution).
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Wrongful death |
grant recovery for $ injury resulting to the spouse and next of kin.
creditors have no claim against amount awarded |
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Tort Immunities
Intra-family tort immunities |
traditional view: one family member could not sue another in tort for personal injury.
ABOLISHED
even in states that retain parent-child immunity: children can always sue parents for a. intentional torts, or b. car accident cases to the extent of insurance coverage |
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Tort immunities
Governmental tort immunity |
immunity is available for governmental functions, not proprietary actions.
Would a private person normally perform this function? If yes, no immunity |