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65 Cards in this Set
- Front
- Back
Intentional Tort-Prima Facie Case
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1) Act (Volitional)
2) Intent (specific and general) 3) Causation |
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Transferred Intent
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1) intends to commit a tort
2) Commits a different Tort 3) even if a different person Applicable to assault, battery, false imprisonment, trespass to land; or trespass to chattels |
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Battery
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1) Harmful or offensive contract
2) to plaintiff's person (reasonable person); 3) intent; and 4) Causation |
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Assault
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1) reasonable apprehension
2) immediate harmful or offensive contact 3) intent 4) causation |
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False Imprisonment
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1) An Act that confines or restrains
2) to a bounded area intent 3) Causation |
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Intentional Infliction of Emotional Distress
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1) Extreme and outrageous Conduct (continuous, class of plaintiff, common carriers or inn keepers- gross insults
2) Intent or recklessness 3) Causation 4) Damages-Severe emotional damages |
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Trespass to Land
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1) Physical invasion
2) Intent 3) Causation |
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Trespass to Chattels
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1) An Act by defendant that interferes with P's right of possession
2) Intent 3) Causation; 4) Damages (Rental) |
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Conversion
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1) An Act that interferes with plaintiff's right of possession
2) so serious it requires D to pay the full value 3) Intent 4) Causation |
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Express Consent
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No liable if P consented except
1) mistake will undo express consent if D knew of and took advantage of the mistake 2) Consent induced by fruad will be invalidated if it goes to an essential matter, but not a collateral matter; and 3) consent obtained by duress will invalidated unless the duress is only threates of futre actio nro future economic deprivation |
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Implied Consent
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Apparent consent is that which a reasonable person would infer from custom and usage or plaintff's conduct e.g. normal contacts inherent in body-contact sports ordinary incidental contact. Consent implied by law aries when action is necessary to save a person's life or some other important interest in person or property.
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Capacity Required for Consent
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Individual without capacity are deemed incapable of consent. Incompetents, drunken persons and very young children.
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Exceeding Consent
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If a defendant exceeds the scope of consent and does something substantially different, he may be liable.
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Self-Defense
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When a person reasonably believe that she is being or is about to be attacked, she may use such force as is necessary to protect against injury.
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Defense of Others
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One may use force to defend another when the actor reasonably believes that the other person could have used force to defend himself.
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Defense of Prperty
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One may use reasonable force prevent the commission of a tort against her real or personal property. A request to desit or leave must made unless it clearly would be futile or dangerous. The deense oes not apply once the tort has been committed; however, one may use force in hot purusit of another who has tortiously dispossed the owner of chattels becasue the tort is viewed as still being committed.
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Recapture of Chattels
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The basic rule is the same as that for reentry of land at common law: when another's possession began lawfully, one may use only peaceful means to recover the chattel. Force may be used to recapture a chattel only wehen in hot pursuit of one who has obtained possession wrongfully by theft.
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Defamation
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1) Defamatory Language (adversely on reputation
2) Of or concerning the Plaintiff (Reasonable reader would understand the statement) 3) Publication (to a third person (intentionally or negligently) 4) Damage Public Concern 5) Falsity (malice knowledge of falsity or reckless disregard) 6) Fault |
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Defenses to Defamation
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1) Consent
2) Truth 3) Absolute Privilege 4) Qaulified Privilege |
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Invasion of Right to PRivacy
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1) Appropriation of Plaintiff's Picture or Name
2) Intrusion on Plaintiff's Affairs or Seclusion 3) Publication of Facts Placitn Plaintiff in False Light 4) Public Disclosure of Private Facts |
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Appropriation of Plaintiff's Picture or Name
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1) Unauthorized use
2) Commercial advantage |
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Intrusion on Plaintiff's Affairs or Seclusion
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1) prying or intruding
2) objectionable to a reasonable person 3) Private |
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Publication of FActs Placing Plaintiff in False Light
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1) False light he did not take
2) objectionable to a reasonable person Public interest=malice |
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Public Disclosure of Private Facts about Plaintiff
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1) Private information
2) objectionable to a reasonable person |
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Misrepresentation
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1) Misrepresentation of a material fact
2) Scienter (knew or should have knew the statement's falsity) 3) Intent to induce reliance 4) Causation 5) Justifiable Reliance |
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Negligent Misrepresentation
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1) Misrepresentation in a business or professional capacity
2) Breach of duty 3) Causation 4) Causation 5) Damages |
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Interference with Business RElations
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1) Existence of a valid contractual relationship or valid business expectancy
2) knowledge of the relationship 3) intentional interference 4) Damages |
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Malicious Prosecution
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1) Institution of criminal proceedings
2) termination in plaintiff's favor 3) absence of probable cause 4) improper use 5) damages |
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Negligence
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1) Duty (Reasonable Person)
2) Breach (Did not act as) 3) Causation (Actual-"but for" and Proximate Cause "foreseeable" 4) Damages |
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Standards of Care
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Basic-A reasonable person under similar characteristics under like circumstances
Professionals-Good standards in the same community Children-like, education, intelligence and experience Common Carriers-higher degree of care Owners of land |
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Duty to Undiscovered Trespassers
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No Duty
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Duty to Discovered Trespassers
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1) artificial conditions known to the landowner
2) involving risk of death or serious harm 3) use reasonable care i nthe exercise of active operation |
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Attractive Nuisance
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1) a dangerous condition (D should be aware of)
2) knew or should of knew that children frequent the condition 3) likely to cause injury 4) the expense is light compared to the injury |
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Licensee (permission and her own purpose)
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Artificial-Duty to warn of or make safe known condition if nonobvious and dangerous
Natural-Duty to warn of or make safe known conditions if nonobvious and dangerous |
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Invitee (member of public, business visitor)
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Artifical and natural-Duty to make reasonable inspections to discover nonobvious dangerous conditions and warn or make them safe
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Negligent Infliction of emotional distress
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1) extreme and outrageous conduct
2) Intent 3) Causation and Damages 4) zone of danger A) closely related B) present at ascone C) observe or perseive the injury. |
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Affirmative Duties
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1) Assumption by acting
2) Peril Due to Defendan's conduct 3) Special Relationship 4) Duty to Control Third Parties (right to control third parties--life guards, police officers) |
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Breach
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Falls short of the duty required.
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Res Ipsa Loquitur
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1) injury associated with negligence
2) attributable to defendant 3) causation 4) Damages |
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Causation
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Actual-But for
Proximate Cause-Foreseeable |
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Damages
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Personal Injury
property Damage Punitive Damages (punishing) Nonrecoverable Items Duty to Mitigate Collateral Sourse |
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Negligence Per se
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1) Statute
2) Plaintiff A) Harm B) Class |
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Negligence Defenses
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Contributory Negligence
Implied Assumption of Risk Pure Comparative Negligence Partial Comparative negligence |
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Contributory Negligence
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Plaintiff own negligence contributes to her injury. Plaintiff claim compelty barred. Defense negated by Defendant's last clear chance
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Implied assumption of Risk
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Plaintiff knew orf a risk and injury and voluntarily assumed it
Plaintff's claim is barred |
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Pure Comparative Negligence
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Plaintiff own negligence contriubtes to her injury
Plaintiff damagge award reduced by percentage of fault attributable to her |
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Partial Comparative negligence
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Plaintiff own negligence contribute to her injury
Plaintff damage award reduced if her fault is below the threshold level; otherwise plaintff's claim is barred. |
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Strict Liability
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1) Absolute Duty
2) breach 3) Causation (actual and proximate) 4) damages |
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Animals-strict liability
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1) Trespassing animals (foreseeable)
2) Wild Animals 3) domesticated with knowledge |
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abnormally dangerous activities
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1) serious harm even when reasonable care is exercised
2) not a matter of common usage |
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Products Liability
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Manufacturing Defects
Design Defects Inadequate Warnings |
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Manufacturing Defects
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If a product emerges from manufacturing different and more dangerous than the products made properly, it has a manufacturing defect
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Design Defects
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When all products of a line are the same but have dangerous propensites, they may be found to have a design defect.
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Inadequate Warnings
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A product may be defective as a result of the manufacturer's failrue to give adequate warnings as to the risks involved in using the product. For liability to attach, the danger must not be apparent to users.
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Design Defects-Utility
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product safer without serious impact on the products price or utility
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Implied Warranties of Merchantability and Fitness
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1) Merchanability, goods are average acceptable quality nd are generally fit for the ordinary purpose for which the goods are used; and Fitness for a particular purpose-sellers knows or has reason to know that particular purpose for which the goods are required and that the buyer is relying on the sell'es skill and judgment in selcting the goods.
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Private Nuisance
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1) Substantial, unreasonable interference with another private individual's use or enjoyment of propety that he actually posses or immediate right ot possesion
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Public Nuisance
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1) unreasonable interference
2) health, safety, or property rights of the community |
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Vicarious Liability-Employee/Servant
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Employer/Master vicariously liable if tortious act within scope of employment relationship
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Vicarious Liability-Independent Contractor
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Employer of IC not viciously liable unless activity is inherently dangeorus or duty is nondelegable on public policy grounds
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Partner or Joint Venturer
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Other Partners or joint venturers vicariously liable if tortious act within scope and course of partnership or joint venture
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Driver of Automobile
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Owner of automobile not vicariously liable unless jurisdiction has family care doctrine or permissive use statue
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Bailee of Chattel
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Bailor not vicariously liable
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Child
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Parent not vicariously laible
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Patron of Tavern
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Tavernkeeper not vicariously liabe in absence of Dramshop ACt
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