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32 Cards in this Set
- Front
- Back
Negligence
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Duty
Breach of that Duty Causation Damages |
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Duty
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Maj: Duty owed to only those that are foreseeable and in the zone of danger.
(Cardozo) Min: Duty owed to all (Andrews) |
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SOC (Standard of Care)
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Absent special relationship, SOC is one of reasonableness.
Reasonable and Prudent Person in the Same or Similar Circumstances. Judged objectively. |
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SOC - Heightened SOC
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People entrusted with a heightened SOC are liable for even slight negligence.
Landowners, professionals, and common carriers. |
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BREACH
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Def fails to conform to the SOC.
SOC is one of reasonableness OR heightened SOC. |
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Breach - Alternate Theories
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1. Res Ipsa Loquitur
2. Negligence Per Se 3. Custom and Usage |
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Causation
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Actual & Proximate
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Actual Causation
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"But for" causation.
The defendant is only liable if the injury would not have occurred but for his negligence. |
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Proximate Cause
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Exits when the act and resulting injuries were a foreseeable result of defendant's conduct or defendant's conduct was a substantial factor in causing the injury.
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Damages
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Plaintiff must prove damages in the form of physical injury or property damage.
Economic harm alone is insufficient for a claim of negligence. |
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Defenses
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1. Contributory negligence.
2. Comparative negligence. 3. Assumption of risk. |
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Eggshell Plaintiff - Prox Cause
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Per se foreseeable. A pre-existing medical condition that makes plaintiff more susceptible to injury
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Contributory Negligence
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Also discuss comparative negligence if contributory negligence applies.
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Defamatory Statement
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Injures a plaintiff's reputation, and tends to subject plaintiff to hatred, contempt, and ridicule or financial injury
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Defamation - Common Law
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1. Defamatory statement
2. Of or concerning plaintiff 3. Publication 4. Damages |
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Of or concerning plaintiff
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Must establish a reasonable recipient of the information would understand that the statement referred to plaintiff.
Consider COLLOQUIUM if plaintiff isn't explicitly named. |
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Publication
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The statement be communicated to a 3p who understands the defamatory meaning and its application to plaintiff.
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Damages
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Type of damages depends on the type of defamation.
Consider LIBEL or SLANDER |
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Libel
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Defamation that is written.
General damages are presumed. Plaintiff may offer actual evidence of damages. |
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Libel per se
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Minority Jurisdictions:
Libel that is defamatory on its face. |
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Libel per quod
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Minority Jurisdictions:
Libel that is not defamatory on its face. |
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Slander
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Defamation that is spoken.
Plaintiff must prove damages unless the defamation is slander per se. |
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Slander per se
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1. Adversely reflects one's conduct in business or profession;
2. Accuses one of having a loathsome disease; 3. Accuses one of a guilt involving crime of moral turpitude; or 4. Suggest a woman is unchaste. |
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Constitutional Defamation
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When defamation involves a matter of public concern, the plaintiff must prove two additional elements:
1. Falsity; and 2. Fault |
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Matter of Public Concern
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Is this a matter of public concern? This is usually debatable. Use all of the facts.
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Falsity
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Is the defamatory statement false?
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Fault
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Is plaintiff a private or public figure?
Private: negligence must be shown. Public: Malice must be shown. |
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Malice
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KNOWLEDGE that the defamatory statement was false or RECKLESS DISREGARD as to the statement's truth.
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Negligence (Defamation)
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Discuss REASONABLENESS and CARELESSNESS on the part of defendant.
Also applies when the plaintiff is a public figure. |
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Defenses to Defamation
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1. Truth (doesn't apply in const defamation - plaintiff has burden of proving falsity)
2. Absolute Privilege 3. Qualified Privilege |
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Defense to Defamation: Absolute Privilege
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1. During judicial proceedings;
2. By legislators in debate; 3. By Federal executive officials; 4. In compelled broadcast; and 5. In between spouses. |
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Defense to Defamation: Qualified Privilege
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1. Reports of official proceedings;
2. Statements in the interest of publisher; 3. Statements in the interest of the recipient; and 4. Statements in the common interest of the publisher and recipient. |