Torts

Front 1

For all intentional torts, ________ is irrelevant

Back 1

duty

Front 2

What are the two types of intent?

Back 2

1. Specific
2. General

Front 3

Reckless intent is sufficient for __________-

Back 3

intentional infliction of emotional distress (IIED)

Front 4

All intentional torts should have ________ causation

Back 4

legal (substantial factor is sufficient)

Front 5

When is damages required in intentional torts?

Back 5

Damages not required except for IIED and property torts

Front 6

Why is the hypersensitivity of a P never considered?

Back 6

Because we always assume that Plaintiff is an ordinary person

Front 7

Which defenses are not available for intentional torts?

Back 7

No incapacity defenses for intentional torts (children, drunks, incompetents, insane: All liable for intentional torts)

Front 8

All intentional torts must be done “intentionally” or with ______________the harm will occur

Back 8

substantial certainty

Front 9

When does transferred intent apply in intentional torts?

Back 9

Always. Applies to assault, battery, false imprisonment, trespass to chattels, and trespass to land and even applies if Defendant intended to hit Plaintiff’s dog

Front 10

What are the intentional torts?

Back 10

1. Battery
2. Assualt
3. False Imprisonment
4. IIED
5. NIED
6. Trespass of land
7. Trespass to chattels
8. Conversion

Front 11

What are the elements of battery?

Back 11

1. Intentional
2. Harmful or offensive contact
3. With Plaintiff’s person
4. Unpermitted by reasonable person (no injury required)

Front 12

Is actual resulting harm required in a battery?

Back 12

No

Front 13

What is contact? re: battery

Back 13

1. Skin, flesh, anything Plaintiff is holding or connected to Plaintiff qualifies as “contact”
2. Contact offensive to human dignity is sufficient

Front 14

Is setting a trap for plaintiff battery?

Back 14

Yes

Front 15

Do we have a battery if there was only an intent to assualt which ends up in contact with the P?

Back 15

Yes

Front 16

When do you not have liability for battery?

Back 16

No liability if Defendant was merely reckless or negligent

Front 17

What are the elements of assualt?

Back 17

1. Defendant intentionally
2. Places Plaintiff in reasonable apprehension (or intentionally tried to commit a battery)
3. Of immediate
4. Harmful or offensive contact

Front 18

For an assault, Defendant must have __________ to commit a battery

Back 18

apparent ability

Depends on what Plaintiff believes, if Plaintiff knows the gun is not loaded: not satisfied.

Front 19

Is fear necessary for assault?

Back 19

No

Front 20

Are spoken words enough for assault?

Back 20

No - must be coupled with conduct

Front 21

Are future threats considered assualt?

Back 21

No

Front 22

What if D intends to commit a battery but misses?

Back 22

Then he has committed assault

Front 23

What are the elements of false imprisonment?

Back 23

1. Defendant intentionally
2. Confines or restrains Plaintiff
3. To a bounded area

Front 24

Plaintiff must know of the _____or ________
re: false imprisonment

Back 24

confinement, suffer harm

Front 25

Excluding P from a place is __________ confinement

Back 25

not

Front 26

___________ threats are sufficient for false imprisonment

Back 26

Present (moral pressure and future threats are not enough)

Front 27

Which P need not be aware of their confinement for false imprisonment?

Back 27

Infant, incompetents need not be aware of the confinement (child lured into car with candy)

Front 28

What does bounded area mean? re: false imprisonment

Back 28

Bounded area means plaintiff cannot reasonably discover and way out, no reasonable escape

Front 29

False arrest can be constituted as __________

Back 29

false imprisonment

Front 30

What is the shopkeeper privilege?

Back 30

no false imprisonment if shopkeeper detains a suspected shoplifter if:
(1)Reasonable grounds to believe theft has occurred
(2)Detention conducted in reasonable manner
(3)Reasonable period of time

Front 31

What are the elements of IIED?

Back 31

1. “extreme and outrageous conduct” by Defendant “exceeds all bounds of decency”
2. Defendant suffers severe distress (damages)

Front 32

What are the e.g. of IIED?

Back 32

1. Fright
2. horror,
3. grief,
4. humiliation,
5. embarrassment,
6. anger,
7. worry,
8. nausea: severe distress (No physical symptoms necessary - crying a lot is sufficient)
9. Exploiting a person’s known fear (Defendant knows Plaintiff is superstitious)

Front 33

In IIEd, unlike other torts ____________is sufficient

Back 33

recklessness

Front 34

Are insults sufficient for IIED?

Back 34

Insults alone are never sufficient

Front 35

How does conduct become outrageous?

Back 35

Conduct that is not normally outrageous may becomes so by:
(1)Takes place in public (humiliation)
(2)Repetitive conduct (repeated phone calls)
(3)Defendant is an innkeeper (hotels), common carriers (buses, planes, trains) liable for even gross insults
(4)Plaintiff is member of fragile class of persons (children, elderly, pregnant woman)

Front 36

What is the only intentional tort to person's body that requires damages?

Back 36

IIED

Front 37

When can a victim sue for IIED?

Back 37

If Defendant intentionally causes physical harm to Victim, Bystander can sue for IIED

Front 38

What are the elements of IIED?

Back 38

a)Bystander present when injury to Victim occurred

b)Plaintiff is a close relative of bystander

c)Defendant knew/should have known bystander was present (must intend to inflict distress on bystander)

d)Defendant knew bystander was a close relative of Victim

e)Bystander can also prove IIED by showing normal IIED elements

Front 39

What are the NV elements of IIED?

Back 39

a)Physical proximity to the event

b)Contemporaneous perception of victim’s injury/accident

c)Close relationship to victim

d)Bystander need not be in zone of danger

Front 40

When do we have a NIED situation?

Back 40

No physical harm to Plaintiff, instead emotional/mental harm

(Defendant runs red light and misses Plaintiff, but Plaintiff is distressed)

Front 41

What are the elements of NIED?

Back 41

(1)Defendant was negligent in creating a risk of injury to Plaintiff

(2)Plaintiff was in a “zone of physical danger” (near miss)

(3)Plaintiff suffers a physical manifestation of distress

Front 42

When can you not have a "physical manifestation" of distress and still invoke NIED?

Back 42

a) Negligent transmission of message misinforming that a family member has died: distress is presumed

b) Negligent mishandling of corpses: distress is presumed

Front 43

What is the impact rule? re: NIED

Back 43

If Defendant causes Plaintiff to break his leg (some type of impact: even dust in the eye) and Plaintiff also suffered mental distress: physical manifestation element is satisfied because of the physical contact

Front 44

How can a bystander recover for NIED?

Back 44

a)Bystander is close relative of Victim

b)Bystander was present at scene

c)Bystander perceived the injury

d)*NV: must be actual family member (fiancé does not qualify)

Front 45

What are the elements for trespass of land?

Back 45

a)Defendant intentionally

b)Invades, remains, or fails to remove something

c)From Plaintiff’s real property

Front 46

Do we have trespass if D thought that he was on his own property?

Back 46

Yes.

Front 47

______ is no defense in trespass

Back 47

Mistake

(only intent to enter is required not intent to trespass)

Front 48

Do we have trespass when you throw something on another's land?

Back 48

Yes, including water

Plus, D or the item need not touch the ground.

Front 49

Causing ________ items to go onto Plaintiff’s land is not trespass

Back 49

intangible

(light, sound, smoke, vibrations: but particles of dust is trespass)

Front 50

The Plaintiff in a trespass case can be anyone with actual or ______possession of the land

Back 50

constructive (lessee, AP)

Front 51

You only have liability when you enter with negligence or recklessness and then _______, otherwise there is no liability.

Back 51

cause damages

Front 52

If Defendant enters _______ but not negligently, thene there is no liability from the trespass, but you do pay for damages.

Back 52

accidently

(Defendant hits golf ball straight down fairway but it hits a tree branch sticking out and lands Plaintiff’s yard causing damage: no trespass but liable for damage)

Front 53

What are the defenses to trespass?

Back 53

a)Private necessity: no trespass but Defendant liable for damage (Defendant docks boat during storm on Plaintiff’s dock and breaks up dock: no trespass but Defendant liable for damage)

b)Public necessity: no trespass and no liability for damage

Front 54

What are the elements of trespass to chattels?

Back 54

a)Defendant intentionally

b)Interferes with Plaintiff’s right of possession

c)To a chattel (must be tangible property - pets are chattel)

Front 55

What are the damages for trespass to chattels?

Back 55

a)Defendant must pay to have property repaired or liable for diminished value of the chattel; or

b)Defendant liable for Plaintiff’s lost use of the chattel

Front 56

What are the elements of conversion?

Back 56

a)Defendant intentionally

b)Interferes with Plaintiff’s right of possession

c)To a chattel (includes intagibles)

d)Interference is serious enough to justify Plaintiff’s right to full value of chattel at the time it is taken

Front 57

What are the damages in conversion?

Back 57

Defendant entitled to full value of the property at the time it was lost (used price)

Front 58

_______ is no defense in conversion

Back 58

Mistake

(Defendant takes Plaintiff’s coat thinking it’s his own and loses it)

Front 59

The longer the ________the more likely conversion not trespass to chattels

Back 59

interference

(Court considers extent and duration of Defendant’s interference ; Kicking Plaintiff’s dog: trespass to chattels; shooting out O’s dog’s eyes with BB gun: conversion )

Front 60

Who can sue for conversion?

Back 60

Anyone with possession or right to possession can sue

Front 61

What are the defenses to intentional torts?

Back 61

1.Consent
2. Defense (of self,others or property)
Necessity
3. Arrest

Front 62

_________ is generally not a defense to intentional torts

Back 62

Mistake

e.g. Defendant sees woman he thinks is his wife from behind and goes up behind her and kisses her: liable for battery

Front 63

Consent is a defense to ____________
BAF

Back 63

battery, assault, false imprisonment

Front 64

What are the two types of consent?

Back 64

Implied and expressed

Front 65

What are the examples of implied consent?

Back 65

a)Plaintiff went to a place or engaged in an activity where certain invasions are “customary” (fan at baseball game, voluntarily play tackle football)

b)Defendant’s conduct was necessary to save Plaintiff’s life (Plaintiff injured and unconscious and doctors performs surgery)

Front 66

When is express consent invalid as a defense to an intentional tort?

Back 66

If procured by fraud or duress.

e.g. Before having sex Defendant failed to tell Plaintiff Defendant has HIV: not a defense to battery

Also, Plaintiff must have capacity to give consent (not a minor, insane, or drunk)

Front 67

What is the limit of a given consent?

Back 67

Consent is to the plaitiff's conduct and not its consequences

e.g. if Plaintiff dies in boxing match: Defendant not liable but if Defendant used lead filled gloves: Defendant is liable

Front 68

What are the elements of self defense or defense of others?

Back 68

a)Threat/invasion is imminent
b)Defense is reasonably necessary
c)Force used is reasonable (not excessive: Defendant can use same force being used on him)

Front 69

When is self defense not a defense?

Back 69

If the agression has stopped - can be revenge.

Front 70

In self defense there is no duty to ____________

Back 70

retreat

*NV: Defendant need not wait to be attacked to use self defense

*NV: if Victim is intruding into Defendant’s residence, Defendant can presume Victim is entering to cause great bodily injury or death: Plaintiff can only recover for wrongful death if “clear and convincing evidence” Defendant’s assumption was unreasonable

Front 71

Force can only be used to recapture chattel if in immediate _______

Back 71

hot pursuit

Front 72

Can a defendant be mistaken to the need of self defense?

Back 72

Yes, but only if the mistake is unreasonable

Front 73

7. If while reasonably defending himself Defendant accidentally shoots third party: no _____unless Defendant was _______

Back 73

liability ; negligent

Front 74

What is the general rule for defense of property?

Back 74

All force must be reasonable- deadly force is NEVER ok to protect property.

e.g. X can use reasonable force to stop shoplifter Y but must have reasonable belief Y shoplifted

Front 75

Necessity is only a defense to _________ torts

Back 75

property
(trespass to land, trespass to chattels, conversion)

Front 76

What are the two types of necessity defenses?

Back 76

1. Private necessity
2. Public necessity

Front 77

When do we have a private necessity defense?

Back 77

Defendant invades Plaintiff’s property in an emergency (Defendant in danger or to preserve Defendant’s property, Defendant lands on Plaintiff’s cornfield because plane malfunction)

Front 78

When there is a private necessity the plaintiff cannot ____ the defendant from his land

Back 78

kick

Front 79

What are the defendant's damages in a private necessity defense?

Back 79

Defendant must pay for any damages/harm but not punitive damages

nothing if no damage

Front 80

What is a public necessity?

Back 80

Defendant invades Plaintiff’s property in an emergency to protect community or group of people

Front 81

What are the damages in a public necessity defense?

Back 81

It is an absolute defense: no liability for harm, trespass, damage

Front 82

When do we have arrest as a defense for an officer if no crime was committed?

Back 82

1. Reasonable mistake as to arresting the right person (ID)

2. Reasonable mistake as to whether or not a crime was committed

(Officer can arrest without a warrant if the crime was committed in the officer's presence)

Front 83

When is arrest a defense for a citizen?

Back 83

(1)Reasonable mistake as to arresting the right person (ID): is a defense

(2)Reasonable mistake as to whether or not a crime was committed: NO defense

Front 84

How are you liable to a third party if X commits an intentional tort against you or your property, and makes the property dangerous for a plaintiff?

Back 84

You are liable to Plaintiff if you don’t fix the problem or if danger to Plaintiff is foreseeable and you fail to reasonably prevent harm to Plaintiff

Front 85

If S is a ______on O’s land, O can break down S’s fence to recapture O’s land

Back 85

squatter. - we have a defense

Front 86

A parent or a teacher can use ___________ on a child as necessary for proper training, control, education

Back 86

reasonable force is a defense

Front 87

Generally, what is negligence?

Back 87

1. It is the failure to act reasonably under the circumstances

2. It is a specific tort: exposing another to an unreasonable risk of harm

3.Can be an affirmative act or omission (family relationship, contract, Samaritan statutes, creation of peril)

Front 88

What are the elements of negligence?

Back 88

1. Duty
2. Breach
3. Causation
4. Damages

Front 89

What is the duty owed in negligence and to whom?

Back 89

1.In doing any act Defendant owes a duty to act as reasonably prudent person:

a)all reasonably foreseeable victims
b)within the zone of danger (Palsgraf - no duty owed to unforeseeable Vs “outside zone of danger”)

Front 90

What is the standard of care in negligence?

Back 90

a)Reasonably Prudent Person (objective):

(1)Defendant must act as reasonably prudent person would under same circumstances

(2)No allowance for mental deficiency (stupid, retarded, insane: no defense)

(3)No allowance for inexperience

(4)If Defendant has “superior knowledge”: Reasonable person with superior knowledge

(5)Defendant’s “physical characteristics” are considered (reasonable blind person): but not if Defendant knows he’s epileptic and drives anyways or Defendant knows he needs to use a cane and doesn’t and falls

Front 91

What is the standard of care for children in a negligence case?

Back 91

It is a subjective standard:

(1)Same standard as a child of like age, education, intelligence, experience

(2)If Defendant is 6, in kindergarten, who had never ridden a bike before: he is compared to the same

(3)Under 4 incapable of negligence

(4)Kids engaged in adult activity (cars, boats): reasonably prudent person

(5)Notwithstanding the above children are liable for intentional torts

(6)Parents not liable for child’s negligence unless negligent supervision

Front 92

What is the standard of care for professionals?

Back 92

a)Same care as an average member of the profession

b)Practicing in the same or similar community (small town, etc.)

c)Specialist held to higher standard than general practitioner

Front 93

What is the standard of care for common carriers?

Back 93

a)Must use a high degree of care

b)Liable for slight negligence

Front 94

What is the standard of care for Driver/Passenger/Guest?

Back 94

a)Passenger: A person that gives an economic benefit (chips in for gas or tolls, etc.)

b)Guest: Gives no economic benefit

c)Guest Statute (most states): driver only liable for gross misconduct

d)Passenger Rule: driver must inspect vehicle and make safe (invitee standard)

e)*NV: no guest statute: each driver owes each guest/passenger normal reasonably prudent person duty

Front 95

A ____ fetus is owed a duty

Back 95

viable

Front 96

What is the standard of care in an emergency?

Back 96

X must act as reasonably prudent person in emergency (unless X created the emergency)

Front 97

What is generally the standard of care for landowners?

Back 97

a)Activity: Always reasonably prudent person (for discovered trespasser, licensee, invitee: all except undiscovered trespasser)

b)Conditions (natural or manmade):

(1)Invitee: knowable traps (duty to inspect)

(2)Licensee: known traps

(3)Discovered trespasser: known man made death trap

(4)Undiscovered trespasser: no duty

- Child Trespasser: reasonably prudent person for condition and activity + attractive nuisance

Front 98

What is the std of care for landowners for discovered/anticipated trespassers?

Back 98

a)Activities: reasonably prudent person

b)Conditions: reasonably prudent person if condition is a “known manmade death trap”:
(1)Defendant knows about condition
(2)Condition is manmade
(3)Condition is highly dangerous (great bodily injury/death)
(4)Condition is hidden or concealed (Plaintiff can’t see the danger)

Front 99

What is the standard of care of a landowners for licensees? (social guests, party, friends)

Back 99

a)O has a duty to warn of hidden dangers
b)Activity: reasonably prudent person
c)Conditions: reasonably prudent person if condition is a “known trap”:
(1)Concealed (Plaintiff can’t see the danger)
(2)Known by Defendant

Front 100

What is the std of care of landowners for invitees ((land open to public, business customer)?

Back 100

a)O must inspect, warn, and make safe
b)Activities: reasonably prudent person
c)Conditions: reasonably prudent person if condition is a “reasonably knowable trap”:
(1)Concealed
(2)Defendant knows/should know by reasonable inspection

(Plaintiff only enters to use bathroom: still an invitee)

Front 101

What is the std of care of landowners for public employees?

Back 101

a)Police/firefighters: no recovery for injury which is inherent risk of job (no matter that Defendant negligently caused the fire)

b)Garbage collectors, postman, building inspectors: Defendant liable for negligence

Front 102

What is the standard of care of landowners for infant trespassers (under 18)?

Back 102

a) Focus on whether children coming onto Defendant’s land is foreseeable:
(1) Should know because “attractive nuisance”, etc.
b)Reasonably prudent person: regardless of activity or condition
c)Reasonably prudent person: even if defendant didn’t know they were there
d)Reasonably prudent person: even if no dangerous condition actually attracted child to the land

Front 103

What is the rule for attractive nuisance? When do we have an attractive nuisance?

Back 103

Rule: reasonably prudent person

(1)Artificial condition on the land
(2)O knows/should know child likely to trespass
(3)O knows/should know harm could result
(4)Child will likely not appreciate the danger
(5)Special risk to kids
(6)Ease of eliminating the danger

Front 104

What is the standard of care in a landlord/lessee relationship?

Back 104

a)Lessor must warn Lessee of hidden defects existing when Lessee takes over

b)Lessor not liable for conditions that come into existence after Lessee takes over

c)Lessor is liable to Lessee or Lessee’s guest for common areas

d)If Lessee’s guest is injured in Lessee’s apt: Lessor may be liable (Lessee can also be liable)

Front 105

How can a reasonably prudent person duty be satisfied?

Back 105

a)Reasonably prudent person duty can always be satisfied by:
(1)Repairing the condition; or
(2)Giving a reasonable warning (oral warning, sign, fence, etc.)

Front 106

What is false imprisonment? (2)

Back 106

[1] Unlawful confinement of a person

[2] without his valid consent.

It’s not confinement to simply prevent a person from going where she desires to go, as long as alternative routes are available to her.

Front 107

What is the standard of care/duty of landowners in NV?

Back 107

(1)Land owner must use reasonable care regardless of whether entrant is trespasser, licensee, or invitee

(2)O: is liable for foreseeable criminal acts of third parties (O apartment owner left vacant apartments open for workers, X criminal hid inside vacant apt until night and then attacked a Lessee: O liable)

b)Exemption for rural (non-residential) lands:

(1)O owes no duty to keep land safe or warn entrants of conditions for people that enter O’s land to participate in “recreational activities” without permission

(2)Even if permission is granted to enter O’s land to participate in “recreational activities”: O does not give any assurance that property is safe and no liability if entrants are injured

Front 108

What are the duties owed when you rescue someone?

Back 108

1.No duty to “rescue”

2.Exceptions:
a)Defendant put Plaintiff in peril; or
b)Special relationship (family, common carrier, innkeeper (fire in hotel), shopkeeper)

Examples:
a)Rescue only has to be reasonable (throw life preserver, call police, not run into burning building)

b)Assumption of duty:
(1)If you choose to rescue you must rescue reasonably

Front 109

What is breach?

Back 109

failure to meet the standard of care: Plaintiff must demonstrate what of Defendant’s conduct constitutes the breach

Front 110

theory of absolute advantage

Back 110

"Hypothesis: division of labor --> (leads to) specialization --> increasing returns. “Every individual and every nation should do what they do best.”
Adam Smith (1723-1790) Scotland one of the most important theories from Wealth of Nations; it does not mean more output.
Conceptualized earlier by
Mencius (372-289 BC)"

Front 111

What is negligence per se?

Back 111

a)Defendant’s breach can be established if Defendant violated a statute (Plaintiff must still show causation + damages)

b)statute says “must stop at red light”, Plaintiff says let’s not use reasonably prudent person standard, instead let’s say if Defendant didn’t stop: conclusive proof of breach

c)elements:
(1)Plaintiff is member of class of people statute is designed to protect; and
(2)accident is the type of harm the statute is designed to prevent

d)Defenses to negligence per se:
(1)statutory compliance would have been more dangerous than violation or was beyond Defendant’s control:
(2)Defendant crosses double yellow line to avoid hitting a child
(3)Husband runs red light to get Wife to hospital to have baby
(4) Defendant with no known heart problems has heart attack causing him to run a red light

Front 112

What are the two types of causation?

Back 112

Factual
Legal

Front 113

What is factual causation?

Back 113

(actual cause):“But For” test: but for Defendant’s breach Plaintiff would not have been harmed

a)Exceptions: 2 men start separate fires which join and burn down Plaintiff’s house (prevents Defendant’s from pointing at each other):

(1)“Substantial factor test”: if both acts contributed: Defendant liable if Defendant’s act was a “substantial factor” in causing Plaintiff’s injury

(2)“Alternative cause test”: (hunting accident) if only one of 2 defendant’s acts caused Plaintiff’s injury but Plaintiff doesn’t know which one: burden of proof shifts to defendants to show that his act was not the actual cause, if defendants can’t: joint/severable liability

Note: Always discuss factual causation and legal causation (do not forget factual causation)

Front 114

What is legal causation?

Back 114

(proximate cause)

a)2 elements of proximate cause:
(1)Defendant is liable to all foreseeable plaintiffs within the zone of danger; and
(2)Defendant is liable for all foreseeable harm resulting from his conduct (resulting harm not foreseeable: Defendant not liable)

b)Terms:

(1)Foreseeable Intervening Event: Defendant liable

(2)Unforeseeable superseding event: Defendant not liable

Front 115

What are foreseeable intervening causes?

Back 115

a)Intervening negligent medical treatment: Defendant hits Plaintiff with his car, taken to doctor, doctor puts on tourniquet too tight and leg must be amputated: Defendant liable (because medical malpractice is foreseeable)

b)Intervening negligent rescue:

(1)Defendant hits Plaintiff with his car, X comes up and tries to help Plaintiff but dislocates Plaintiff’s shoulder: Defendant is liable for the dislocated shoulder (because rescue is always foreseeable)

(2)If Defendant injures X and Y comes to help X and Y is injured in the rescue: Defendant is liable for Y’s injuries too

c)Intervening reaction forces: Defendant hits Plaintiff with car and others in the intersection trample Plaintiff: Defendant liable for the trampling injuries (because trampling is a foreseeable result of Defendant’s act)
d) Subsequent accident/disease: Defendant hits Plaintiff with car, good doctor takes care of Plaintiff’s broken leg, Plaintiff on crutches falls and breaks his arm: Defendant is liable for broken arm (also if Plaintiff hurt on way to hospital if ambulance crashes: Defendant liable; also if Plaintiff contracts deadly disease while in hospital: Defendant liable)
e) if it doesn’t fit one of the specific examples above: not foreseeable

Front 116

What are unforeseeable superceding causes?

Back 116

a)Acts of God
b)Criminal acts of third parties
c)Intentional torts of third parties

Front 117

What is he egg shell skull rule?

Back 117

(unforeseeable extent of harm): if Defendant found liable. Defendant pays 100% of Plaintiff’s injures no matter how surprisingly great they are

Front 118

If ________ is satisfied: factual causation is always satisfied

Back 118

proximate cause

Front 119

If _________is satisfied: proximate cause may or may not be satisfied

Back 119

actual cause

Front 120

What are the general rule for damages in a negligence case?

Back 120

a)Nominal damages are not allowed

b)Punitive damages are not allowed unless Defendant’s conduct was willful or wanton

c)Plaintiff can recover medical damages, property damages, lost wages, pain and suffering but not attorney fees

d)Payments made to Plaintiff from “collateral sources” (insurance benefits, benefits by statute, employment benefits) are not credited towards Defendant’s liability: Defendant must still pay Plaintiff’s full amount of damages (Defendant’s own insurance can pay on Defendant’s behalf):

(1)Defendant injures Plaintiff, Plaintiff is a military veteran, Plaintiff’s injuries are covered through Plaintiff’s veteran benefit: Defendant still liable for full amount of damages

Front 121

What is contribution?

Back 121

a)Each Defendant is assigned a % of fault, if A pays 100% of Plaintiff’s damages

b)A is entitled to contribution from bystander and C

(1)A 60% at fault
(2)Bystander 30% at fault owes A 30% of Plaintiff’s total damages
(3)C 10% at fault owes A 10% of Plaintiff’s total damages

Front 122

What is indemnification?

Back 122

a)X has a right of indemnification if X was not negligent and was forced to pay for the negligence of Y

b)A vicariously liable party (Employer) gets “indemnification” from active tortfeasor (Employee)

c)Any merchant held strict liability for product defect can get “indemnification” from manufacturer

Front 123

When do we have loss of consortium?

Back 123

a)Non-injured spouse of Plaintiff also has cause of action against Defendant

b)can recover 3 types of damages:
(1)Loss of services (mow the lawn, cook food, etc.)
(2)Loss of society (companionship, conversation)
(3)Loss of sex

Front 124

What are the defenses to negligence?

Back 124

1. Comparative negligence
2. Comntributory negligence
3. Assumption of Risk
4. Vicarious Liability
5. Employer/Independent Contractor

Front 125

What is comparative negligence?

Back 125

1.In General:

a)If Plaintiff partially at fault for his injury: jury weighs fault of Plaintiff and Defendant and assigns each a %:
b)Plaintiff’s damages are $100,000, Defendant was 75% at fault, Plaintiff 25% at fault: Plaintiff recovers $75,000
2.2 Types of Comparative Negligence Js:
a)Pure comparative fault: Plaintiff can recover even if 99% at fault (Plaintiff recovers 1%)
b)Partial comparative fault (*NV): If Plaintiff 51% at fault: no recovery
3.Unit Rule: If multiple defendants: defendants’ fault is added up and compared to Plaintiff’s, if defendants’ aggregate fault is less than Plaintiff’s: no recovery in Partial Comparative Fault J; in Pure Comparative Fault J: Plaintiff can still recover

4.*NV follows “partial” comparative fault: Plaintiff’s negligence must be less than Defendant’s or the aggregate of all defendants: otherwise Plaintiff cannot recover (if 51%: no recovery)

Front 126

What is contributory negligence?

Back 126

1.Rule:

a)If Plaintiff has any fault: no recovery

b)Is no defense to strict liability, intentional torts, willful misconduct

2.Last Clear Chance:

a)Only available to plaintiffs as a rebuttal to Defendant’s claim that Plaintiff was contributory negligent

b)If Defendant has last clear chance to avoid the accident and fails to do so: Plaintiff can still recover even if Plaintiff is negligent

c)(applies in Contributory Negligence Js only not in Comparative Negligence Js)

Front 127

What are the rules for assumption of risk?

Back 127

1.Rule: if Plaintiff knew of the risk and voluntarily went ahead anyways: no recovery

2.Elements:
a)Knowledge of the risk (subjective: what Plaintiff actually knew)
b)Voluntary assumption/exposure to the risk
3.always discuss both Assumption of Risk (subjective) and Contributory Negligence/Comparative Fault (objective):
a)Assumption of Risk: Plaintiff knows of the risk and voluntarily exposes himself to it (defense to strict liability)
b)Contributory Negligence: Plaintiff should have been aware of the risk (no defense to strict liability)
4.*NV:
a)Implied assumption of risk does not apply: *NV simply applies Comparative Negligence instead

b)Express assumption of risk: requires a contract expressly relieving Defendant from any duty of care and that Plaintiff has voluntarily consented to bear any consequence involved

Front 128

What are the rules for vicarious liability?

Back 128

1.Employer Master /Employee Servant (“Respondeat Superior”): Master is liable for Servant’s torts even though Master didn’t do anything wrong

2.Elements:

a)Master Servant relationship “authority to control” (assent, benefit, control); and

b)Servant acted within “scope of Servant’s employment”:

(1)Detour (small departure): within scope, Employer still liable

(2)Frolic (big departure): outside scope, Employer not liable

(3)Intentional Tort: outside the scope, Employer not liable (unless in furtherance of Employer’s business: Employee is a bouncer)

c)Exceptions:
(1)Employer’s negligent supervision of Employee (didn’t supervise, perform background check, etc.): Employer is directly liable

(2)Negligent hiring is not vicarious liability, Employer is directly liable for negligence if it failed to conduct reasonable background check

3.*NV:
a)Employer is generally responsible for Employee’s intentional torts; factors:

(1)Unless truly independent venture of Employee
(2)Was not part of Employee’s tasks
(3)Foreseeable considering nature of Employee’s employment

b)Employer pays Independent Contractor as security guard of Employer’s land, Independent Contractor intentionally injures Plaintiff: Employer is liable

Front 129

What are the rules for the employer/independent contractor liabilities?

Back 129

1.Employer not liable for Independent Contractor’s tort

2.Exceptions:
a)Ultra hazardous activity (non-delegable duty)

b)Negligent supervision/hiring

Front 130

What are the liabilities in a car owner/driver situation?

Back 130

a)General Rule: O of car not liable for driver’s negligent driving

b)Exceptions:
(1)“Negligent Entrustment”: O liable if O knows/should know driver is a negligent driver

(2)O liable if driver is O’s family member if using car for family purposes

(3)O liable if driver is running an errand for O

c)*NV:

(1)Spouse 1 can sue Spouse 2 for injuries in a car accident

(2)A child can sue a parent for injuries in a car accident

Front 131

What are the liabilities in a parent/child relationship?

Back 131

a)General Rule: Parent not liable for acts of child (negligent or intentional) unless negligent supervision

b)Before doing vicarious liability always look to see if Plaintiff can get Defendant directly (parent leaves gun on table and child shoots a neighbor: parent directly liable because reasonably prudent person would not leave gun on table)

Front 132

What are the rules for wrongful death claims?

Back 132

A.Victim’s living relative can sue on Victim’s behalf and recover damages

B.Wrongful Death Statute: Plaintiff’s representative can recover on behalf of dead Plaintiff for property damage, medical bills, loss of support, loss of consortium but not pain and suffering

C.Survival Statutes: All of the above plus pain and suffering up until Victim died (paid to Plaintiff’s estate)

D.Defamation and Privacy torts do not survive Plaintiff’s death (third party cannot sue for these if Plaintiff is dead)

Front 133

What are the elements of Strict Liability?

Back 133

A. Elements:
1.Wild animals, ultra hazardous, products

2.Causation

3.Damages

Front 134

What are the SL rules for animals?

Back 134

1.Domesticated Pet: reasonably prudent person unless Defendant knows dog has vicious propensities (bitten in the past, “one bite rule”): strict liability

2.Trespassing Cattle: strict liability for any harm caused by your trespassing cattle
3. Wild Animals: if Defendant keeps wild animals (anything not normally kept as a pet): strict liability for any harm they cause

4.(irrelevant that Defendant trained, de-clawed, used iron cage with 6 locks, checked it 10 times a day: still strict liability)

5.(strict liability even if Plaintiff is injured while fleeing from the wild animal: falls and breaks leg)

Front 135

What are the SL rules regarding ultra hazardous activities?

Back 135

1.Elements:

a)Activity can’t be made safe

b)Activity poses severe risk of harm

c)Activity is uncommon in area where conducted (crop dusting in a city)

2.Examples: storing explosives, dangerous chemicals/gases, crop dusting, using explosives

3.Safety precautions are irrelevant: still strict liability

4.Must be the specific type of harm expected from that activity (Defendant has a bottle of flammable chemical in his trunk, he’s in an accident and chemical spills onto street and Plaintiff walks across the street and slips: no strict liability, this is not the type of harm for which applies, instead Plaintiff must prove Defendant was negligent) (but if de-fanged snake scares a lady and she slips and falls: strict liability because it is likely that a person would run from a snake)

Front 136

What are the SL rules in product liability cases?

Back 136

1.To sue under strict liability Plaintiff must show 4 elements:

a)Defendant is a “merchant”:

(1)Defendant routinely deals in this type of product

(2)service providers are not merchants for items incidental to service (broken chair at restaurant) but commercial lessors are merchants (Hertz strict liability for the car it leases to Plaintiff)

(3)Defendant has to be “a” merchant but not “the” merchant Plaintiff dealt with, every merchant in chain of distribution is strictly liable (mfg, distributor, retailer)

(4)No strict liability for Defendant that doesn’t normally sell this type of product (attorney selling a car)

2. Product is “defective” (3 ways):

a)Manufacturing defect: product that hurt Plaintiff is different from all others that came off assembly line (more dangerous than consumers expect);

b)Design Defect: all are defective, there’s another way to build it that would be
(1)Safer;
(2)Cost effective;
(3)Practical;
(4)Still offers same utility (not more difficult to use)

c)Information Defect: sell product without a warning if consumer not likely aware of the risk

3.Defect “existed” when it left Defendant (mfg or retailer): presumed if product traveled in normal distribution channels

4.Plaintiff’s use of product was “foreseeable”: much broader than intended use; misuse is no defense if foreseeable (standing on a chair, driving over 55 is foreseeable: foreseeable)

Front 137

__________ is a defense to all types of strict liability (can reduce recovery via comparative negligence) but ____________ is no defense

Back 137

Assumption of Risk, contributory negligence

Front 138

______ of Defendant's product after it left Defendant can defeat Plaintiff’s strict liability claim

Back 138

Alteration

Front 139

____________ is no defense to strict liability

Back 139

Disclaimer

Front 140

What kind of damages are recoverable in SL cases?

Back 140

Injury and property damage are recoverable but intangible damages (lost profits, etc.) not recoverable

Front 141

Safety precautions are ___________ in SL cases

Back 141

irrelevant

Front 142

Acting as a reasonably prudent person is __________ in a SL case

Back 142

no defense

Front 143

Who can sue who in a SL case?

Back 143

Any foreseeable Plaintiff (even bystander of person using product) can sue any merchant in the chain of distribution regardless of a contractual relationship between them

1. If X built the product and sold to Defendant (retailer): Defendant is strictly liable if product is defective when sold to consumer

2. Defendant is not liable if it didn’t put the product in the stream of commerce (it was stolen, etc.)

3. If X is a customer and buys a defective product that injures Plaintiff while X is using it: X is not liable for Plaintiff’s injuries under strict liability but might be liable under negligence

Front 144

What are the SL rules in NV?

Back 144

1.Construction projects (houses, apartments, etc.) are not products: no strict liability

2.Warnings must:

a)Be reasonably designed to catch consumer’s attention

b)Fairly and specifically describe the types of risks involved

c)Must correspond in intensity to the degree of risk involved

Front 145

What are the two types of nuisances?

Back 145

1. Public Nuisance
2. Private Nuisance

Front 146

What is public nuisance?

Back 146

1.Substantial and unreasonable interference with public health, safety, peace, convenience

2.Need not be prohibited by ordinance, statute, etc.

3.In order to sue Plaintiff’s specific damage must be a different type than that shared by the general public:

a)If Defendant obstructs highway, fact that Plaintiff used highway 5 times more than others: Plaintiff cannot sue
b)If Plaintiff lives next to whorehouse which is damaging the entire community but specifically bothers Plaintiff because of the loud noise: Plaintiff can sue (Plaintiff’s type of harm is different than that of the public)

Front 147

What is private nuisance?

Back 147

1.Defendant’s substantial and unreasonable interference with Plaintiff’s use and enjoyment of Plaintiff’s land

2.Objective standard:

a)No recovery for hypersensitive Plaintiff

b)Plaintiff works graveyard, sleeps during day, church bells go off during day, Plaintiff can’t sleep: Plaintiff cannot sue

Front 148

What are the defenses to creating a nuisance?

Back 148

1.Plaintiff moves in next to an existing factory: is a defense but not an absolute defense

2.Compliance with statute: is a defense but not an absolute defense

Front 149

What are the remedies in nuisance cases?

Back 149

1.General remedy is money damages but if inadequate court can grant injunctive relief:

a)Example: Plaintiff is only home next to factory emitting smelly gases, factory employs 600 Employees, Plaintiff seeks injunction: court will balance, give Plaintiff money damages but no injunction)

2.Self help: Plaintiff can enter Defendant’s land to abate the nuisance if Plaintiff gave Defendant notice and Defendant refused to act

Front 150

Is physical intrusion required in a nuisance case?

Back 150

No.

1.Nuisance does not require a physical intrusion it only require an interference with Plaintiff’s use/enjoyment of Plaintiff’s land: ex. barking dog, or Plaintiff lives next to Defendant who has tons of cats that cross into Plaintiff’s yard: Plaintiff can sue for Trespass and Nuisance

2.Answer will be flagged by words “Defendant is liable because Defendant’s activity created a substantial/unreasonable interference with Plaintiff’s use of Plaintiff’s land”

Front 151

What are the economic torts? (9)

Back 151

A. Defamation
(1. Libel 2. Slander per se 3. Slander 4. Constitutional defamation 5. Defenses to Defamation)

B. Misrep/Fraud/ Deceit
C. Malicious Prosecution
D. Trade Libel
E. Interference with Business Advantage
F. Invasion of Privacy
G. False Light
H. Public disclosure of private facts
I. Intrusion on Seclusion

Front 152

What are the elements of defamation?

Back 152

1.Elements:
a)Defamatory statement concerning plaintiff

b)Publication

c)Damage to plaintiff’s reputation if slander (presumed if slander per se or libel)

2.Defamatory statement concerning Plaintiff:

a)Oral or written

b)Can be private (conversation / email) or public (newspaper, TV)

c)Must be an alleged statement of fact (“X is embezzling money from his employer”: defamation)

d)Mere insults are not defamatory (“Plaintiff is a jerk”: no defamation)

e)Defendant’s opinion is not defamation (“I think Plaintiff is a thief”: no defamation)

f)Must reasonably identify Plaintiff: if large group of people not defamation but if Defendant says “one of the barbers is a communist” and there are only 3: Each barber can sue for defamation

g)Plaintiff must be living (Plaintiff’s heirs cannot sue on his behalf)

h)Plaintiff does not have to prove Defendant’s statement was false unless Constitutional defamation (matter of public concern)

3.Publication:

a)At least 1 person must hear/read defendant’s statement
b)Statement made only to plaintiff is not publication (unless third party overheard)
c)Publication need not be intentional (defendant negligently leaves copy of letter on his desk)
d)Anyone that repeats the statement is liable to same extent as original speaker/writer (newspaper that prints it, TV show that airs it, etc.)
e)If newspaper repeats what defendant said without reasonable investigation: newspaper also liable unless “newsworthiness”

4.Damages:
a)Presumed if libel or slander per se (even if no actual pecuniary injury)
b)Must be economic (Plaintiff lost his job, house sale fell through, business dropped off)
c)Not Plaintiff is sad or women now avoid Plaintiff

Front 153

What is libel?

Back 153

1.Fixed form defamation (includes written, radio, TV: anything in permanently fixed form)

2.Damages presumed (gets to jury without proving any damage)

Front 154

What is slander per se?

Back 154

1.Oral defamation

2.Damages presumed (gets to jury without proving any damage)

3.4 types of statements:

a)Plaintiff’s improper conduct in Plaintiff’s business/profession (“torts professor doesn’t have a law degree”)
b)Plaintiff committed a serious crime
c)Imputing unchastity to a woman
d)Plaintiff suffers from loathsome disease (VD)

Front 155

What is slander?

Back 155

1.Any oral statement not slander per se
2.Plaintiff must prove damages

Front 156

What is constitutional defamation?

Back 156

1.If Defendant’s statement is matter of public concern

2.Additional element(s) (false + malice if Plaintiff is a public figure)

3.Plaintiff must show:
a)Defamatory statement concerning Plaintiff

b)Publication

c)Damages (presumed if Plaintiff shows actual malice)

d)Statement is false

e)Defendant made statement maliciously:

(1)Public Figure: Plaintiff must show Defendant knew it was false or reckless disregard for truth

(2)Private Figure and Matter of Public Concern:

(a)If Plaintiff shows malice (Defendant knew it was false) → damages presumed

(b)If Plaintiff shows Defendant negligent (Defendant didn’t investigate truth): Plaintiff must prove damages (need not be economic)

Front 157

What are the defenses to defamation?

Back 157

1.Truth
2.Consent
3.Absolute Privilege:

a)Spouses (Husband can defame Plaintiff to his Husband’ s wife)

b)Speech and Debate Clause: government officials in conduct of official duties (prosecutor in court says Defendant is a child molester: no defamation)

4.Qualified Privilege:

a)Defendant speaking in socially useful context

b)Defendant made statements in good faith (reasonably thought it was true)

c)Example: letters of records, info about Plaintiff’s credit worthiness, statements made to police. X is a murderer

d)No defamation if Defendant is testifying in court/proceeding

Front 158

What are the rules for misrep/fraud/deceit?

Back 158

1.Elements:

a)False representation
b)Scienter (defendant knew it was false)
c)Intent to induce plaintiff to act/refrain from acting
d)Reasonable reliance by plaintiff
e)Damages

2.No liability for non-disclosure unless plaintiff and defendant have fiduciary relationship (defendant (40) at baseball card show, plaintiff (12) has $25,000 card, defendant offers to trade 4 worthless cards to Plaintiff: Defendant wins because no fiduciary duty)

Front 159

What are the rules for malicious prosecution?

Back 159

It's using harassing legal behavior against Plaintiff

1.Elements:
a)Civil action against Plaintiff
b)Defendant acted without PC
c)Defendant acted maliciously (no good faith basis)
d)Plaintiff prevailed in the malicious case
e)Plaintiff suffered damages

2. Note: Prosecutors are immune

Front 160

A Δ is incompetent to stand trial if he either: (2)

Back 160

[1] Lacks a rational as well as factual understanding of the charges & proceedings, OR

[2] lacks sufficient present ability to consult w/ his lawyer w/ a reasonable degree of understanding. Δ must show by preponderance of E.

Front 161

What is interference with business advantage?

Back 161

1.Interfering with Plaintiff’s customers, contracts, Plaintiff’s obtaining a job, etc. (inducing someone to breach contract with Plaintiff)

2.Elements:
a)Plaintiff has a business expectancy
b)Defendant knows of the expectancy
c)Defendant intentionally interferes
d)Plaintiff suffers damages

3.Defendant’s motive is a big factor

4.Defense: competition is expected

Front 162

What are the rules for invasion of privacy?

Back 162

1.Appropriation: Defendant’s uses Plaintiff’s name or likeness (picture) for Defendant’s own commercial advantage without permission

2.Exceptions:
a)“Newsworthiness” newspaper article about Tiger Woods without permission: OK
b)Biography about Tiger Woods without permission: OK
3.Example: PMBR student (Plaintiff) does very well and writes letter to PMBR thanking them, PMBR makes poster of letter including Plaintiff’s name: Plaintiff wins (permission must be express not implied)

Front 163

What are the rules for false light?

Back 163

1.Elements:
a)Widespread dissemination
b)Of false or misleading information
c)About plaintiff’s character or background
d)Objectionable to an average person

2.Usually comes along with defamation but allows non-economic damages (depression)

3.Does not require malice: Defendant liable if negligent

4.Truth is a defense

5.Defendant can be liable even if the info is complimentary but untrue

Front 164

What are the rules for public disclosure of private facts?

Back 164

1.Elements:
a)Widespread dissemination
b)Of confidential but truthful info about plaintiff
c)Objectionable to average person

2.Exception: Doctor can publish President Bush had heart attack

3.Examples:
a)College releases grades to everyone, accountant gives everyone your tax records, doctor shares your info with others, etc.
b)Plaintiff must keep that info confidential (consistently kept private)
c)Truth is no defense

Front 165

What are the rules for intrusion on inclusion?

Back 165

1.Invasion of Plaintiff’s privacy objectionable to average person:

a)Eavesdropping
b)Peeping tom
c)Making unauthorized video
d)Obscene phone calls made late at night

2.Plaintiff must be in a place where Plaintiff has Reasonable Expectation of Privacy (REOP)

3.Defendant need not trespass - can be committed from a distance (peeping tom)

Front 166

What are the defenses to privacy torts?

Back 166

1.Consent
2.Truth (except public disclosure)
3.newsworthiness
4.Absolute Privilege (Husband/Wife, officials in official duty)
5.Qualified Privilege (good faith in socially useful context)

Front 167

What are some misc NV rules re: torts?

Back 167

a)No dram shop laws: bar owner has no liability for serving alcohol to an intoxicated person or a minor

b)Joint and Several Liability:

(1)Negligence Cases:

(a)Each defendant is severally liable but not jointly liable to Plaintiff
(b)if Defendant settles with Plaintiff before judgment: that amount is deducted from amount of Plaintiff’s recovery by judgment

(2)Strict liability Cases: defendants are jointly and severally liable to Plaintiff
2. Mandatory Arbitration: case must go to arbitration before trial if; elements:
a) Injury occurred in *NV
b) Damages are $25,000 or less
c) If multiple plaintiffs: each Plaintiff must exceed $25,000, irrelevant that aggregate exceeds $25,000
3. Medical Malpractice:
a) Before filing suit in court for medical malpractice Plaintiff must submit claim to “Screening panel”:

(1)If panel finds for Plaintiff: settlement conference must be held and Plaintiff can file suit
(2)If panel finds for Defendant: Plaintiff can file suit; if Plaintiff loses at court: Plaintiff must pay Defendant’s attorney fees/costs
b)Finding of screening panel is admissible but not conclusive
c)If Victim died: damages are decreased by Defendant’s already diminished chances for survival based on Victim’s condition