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56 Cards in this Set

  • Front
  • Back
First Amendement Defamation
i. Defamatory Statement
ii. “Of or Concerning” the Plaintiff
iii. Publication to a Third Person
iv. Falsity of Challenged Statement: plaintiff bears the burden of falsity.
v. Fault:
Public Figure: actual malice – ∆ made the false statement knowing that it was false or recklessly

Private Figure: negligence – ∆ did not reasonably investigate the accuracy of the statement.
Invasion of Right to Privacy

1. Appropriation: Unauthorized use of P's name or picture for commercial advantage.

2. Intrusion: prying or intruding into private matters that is objectionable to a reasonable person.

3. False Light: Widespread dissemination of a major misrepreentation about P that would be objectionable to the average person.

4. Disclosure: widespread dissemination of confidential information about P that would be objectionable to the ave. person.

Defenses: Consent (all 4), Defamation Privileges (false light & disclosure)
Elements of Intentional Misrepresentation
1. Misrepresenting a Material Fact
2. Scienter (D knew or bel'd it was false)
3. Intent to induce P to act in reliance
4. Causation (actual reliance)
5. Justifiable reliance
6. Damages (P must suffer actual pecuniary loss)

Defenses: None
Negligent Misrepresentation (Elements)
a. Misrepresentation by ∆ in business or professional capacity;
b. Breach of duty toward a particular plaintiff;
c. Causation;
d. Justifiable reliance; and
e. Damages.

Note: this action is generally confined to commercial setting
Interference w/Business Relations (elements)
1. valid contractual relationship b/w Π and 3P or valid business expectancy of Π;
2. Δ’s knowledge of the relationship or expectancy;
3. intentional interference by Δ
4. damages.
Malicious Prosecution (elements)
a. Institution of criminal proceedings (and usually civil) against Π;
b. Termination in Π’s favor;
c. Absence of probable cause for prior proceedings;
d. Improper purpose;
e. Damages
Abuse of Process
a. Wrongful use of process for ulterior purpose;
b. Definite act or threat against Π for ulterior purpose.
Negligence (Elements of Prima Facie Case)
1. Duty
2. Breach
3. Causation (Actual and Proximate)
4. Damage
To whom is a duty of care owed?
A duty of care is owed to all foreseeable victims (zone of danger) – no duty is owed to unforeseeable victims.

1. rescuers are always foreseeable as long as rescue is not wanton.
2. a third party for whose economic benefit a legal or business transaction was made may be foreseeable (e.g., will beneficiary).
General Standard of Care
General Standard:
The care of a reasonably prudent person (with the Δ’s physical characteristics) acting under similar circumstances.

Standard is objective (no excuse for stupid, insane, etc.)

1. superior knowledge or skill: standard of someone with such knowledge and skill.
2. physical disabilities: standard of someone with the physical disability of the ∆.
Standard of Care for Child Defendant
Standard: The care of a child of similar AGE, EXPERIENCE, and INTELLIGENCE acting under similar circumstances.
Exception: adult activity
Standard of Care for Professionals
Standard: Professional must give the care of the AVERAGE MEMBER of that profession practicing in a SIMILAR COMMUNITY.
Standards of Care for Land Occupier (Premises Liability)
How entrant was hurt?
A: activities conducted on land
C: dangerous condition on land

1. Undiscovered Trespasser --> no duty to unforeseen victim
(except children --> default level of care)

2. Discovered/Anticipated Trespasser
C: known, man-made death-traps
A: default

3. Licensee: enters property w/permission (ex: social guests)
C: all known traps
A: default

4. Invitees: enters property open to public generally
C: all reasonably knowable traps (duty to inspect)
A: Default

Note: duty owed re: condition can by satisfied and liability avodided in 2 ways:
1. Fix/Repair the problem
2. WARN (danger no longer concealed)
Attractive Nuisance Doctrine
Landowner has a duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on her property.

P must show:
1. a dangerous condition on the land that the owner is or should be aware of;
2. the owner knows or should know children frequent the vicinity of the condition;
3. the condition is likely to cause injury, i.e., dangerous because of child’s inability to appreciate the risk; and
4. the expense of remedying the situation is slight compared with the magnitude of the risk.

Note: warnings don’t facilitate a child’s appreciation of the risk and are normally not a sufficient remedy.

Note: the child DOES NOT have to be attracted onto the land by the dangerous condition, nor harmed by it directly
Statutory Standard of Care
A statutory violation establishes NEGLIGENCE PER SE if:

i) Π is a member of the class of persons that statute was designed to protect

ii) Π demonstrates that injury is w/in the class of risks that the statute is designed to prevent.

class of persons, class of risks

Exceptions, if compliance is:

1. MORE DANGEROUS than violation
Affirmative Duties
NONE, duties only attach when you voluntarily choose to undertake the activity.

i) If the Δ caused the peril, that triggers a duty to rescue

ii) If there is a pre-existing relationship b/w Δ and Π in peril, there is a duty; (Employer-Employee; Family members; common carrier/Innkeeper and patron; Land occupier and invitee)

Duty triggered by these exceptions is a duty to rescue reasonably under the circumstances

Gratuitous Rescuer: If done so carelessly, Δ is liable for any harm he causes
Negligent Infliction of Emotional Distress
The duty to avoid causing emotional distress to another is breached when defendant creates a foreseeable risk of physical injury to plaintiff, either by (i) causing a threat of physical impact that leads to emotional distress or (ii) directly causing severe emotional distress that by itself is likely to result in physical symptoms.

Plaintiff can recover damages only if defendant's conduct caused some physical injury.

Zone of danger requirement
Breach of Duty
Π identifies the specific wrongful conduct that Δ engaged in and explains why that behavior falls short of the specified duty standard

The more specific the duty standard, the less there is to say with regard to breach.
Π must show:

1. the accident that occurred is of the type that doesn’t normally occur in the absence of negligence; and

2. this type of accident normally happens because of the negligence of someone in the defendant’s position (exclusive control)

Generally cannot be used against multiple Δs.
Actual (Factual) Cause

General Standard and 2 Special Standards
Π must demonstrate a connection or linkage b/w breach and ultimate injury suffered (but-for test).

1)Multiple Δs and mingled causation: Substantial Factor Test

i) Did each Δ contribute to the misfortune in a substantial way?
ii) If yes, both are jointly and severally liable

2) Multiple Δs and Unascertainable Cause:
Burden of proof shifted to Δs to explain their way out of the case; if they can’t --> jointly and severally liable

Proximate Cause

Is it fair to made D pay?

General Rule: D is liable for all harmful FORESEEABLE results
Proximate Cause

Dependent Intervening Forces
Normal, foreseeable responses to the situation created by Δ’s conduct, and thus Δ is liable.

1. Intervening Negligent Medical Treatment

2. Intervening Negligent Rescue

3. Intervening Protection or Reaction Forces

4. Subsequent Disease or Accident
Proximate Cause

Independent Intervening Forces
Independent reactions rather than natural responses

May be foreseeable where Δ’s negligence increased the risk that these forces would harm the ∏

1. Negligent Acts of Third Persons

2. Criminal Acts and Intentional Torts of Third Persons
Proximate Cause

Intervening Cause Analysis
1. What is it about the ∆’s breach that makes me nervous or worried?

2. Look at what happens the plaintiff at the end of the fact pattern – if that’s what you were worried about, it’s a breach.
Eggshell Skull Doctrine
Defendant pays for all harm suffered by the ∏ even if that harm is surprisingly great in scope.

You take your plaintiff as you find your plaintiff.

Note: Not limited to Negligence – applies to EVERY tort in the book
Assumption of Risk
Plaintiff may be denied recovery if:

1) P knew of the risk

2) P voluntarily proceeded in the face of the risk
Strict Liability Causes of Action and Defenses
1) Injuries Caused by Animals

2) Ultrahazardous Activities

3) Consumer Products (Defects)

Defense is comparative fault (including assumption of risk)
Liability for Animals
1) Trespassing Animals: owner is S/L for reasonable forseeable damage

2) Wild Animals: S/L

3) Domestic Animals: no S/L unless owner knows of vicious propensities

Note: S/L generally not imposed in favor of trespassers. However, owning vicious watchdogs may create intentional tort liability.
Ultrahazardous Activities
S/L, safety precautions irrelevant

3 elements:

1) cannot be made safe
2) pose a severe risk of harm
3) activity is uncommon in the area
Consumer Products Liability
Ps often have multiple COAs in these (negligence, breach of warranty, etc.) --> if not specified, use S/L

Common Elements:
1. D must be a merchant
2. defect
3. defect existed when left D's control
4. P is a forseeable user making a forseeable use

Manufacturing defect: product differs from all others

Design defect: there is a hypothetical alternative design that is a) SAFER, b) ECONOMICAL, and c) PRACTICAL.

Warnings can be viewed as HAVs.

Damages: compensatory & punitive
Unreasonable interference w/P's use and enjoyment of land.

1. D can be doing this intentionally, negligently, or w/utmost care

2. Courts balance the interests
Vicarious Liability
Employer-Employee: liable if w/in scope of employment

Independent Contractor: generally no liability. 2 exceptions:
1. inherently dangerous activities
2. non-delegable duty

Automobile owner: no V/L unless driver running errand

Parents/Children: no V/L, no exceptions

TIP: D may be liable on direct liability theories (i.e. negligence)
Loss of Consortium
When victim is married, uninjured spouse gets COA for:

1. Loss of Services
2. Loss of Society (companionship)
3. Loss of Sex
Defenses to Defamation
1) consent --> complete defense

2) truth --> complete defense

3) Absolute Privilege (spouses, gov't officials)

4) Qualified Privilege (if D limits himself to relevant matter, not liabile for reasonable & innocent misstatement of facts
1. defamatory statement
2. of or concerning P
3. publication
4. damage to P's reputation (unless liable or slander per se)
Defamation permanently memorialized

Damages are presumed


Slander Per Se
Spoken defamation

Slander per se:
1. P's business or profession
2. crime of moral turpitude
3. woman's chastity
4. loathsome disease
Recapture of Chattels
1. timely demand req'd
2. recover only from wrongdoer
3. entry on land to remove chattel

wrongdoer's land--> O privileged

innocent party--> O privileged but responsible for actual damage

thru O's fault--> no privilege, must use legal process

Generally, no mistake allowed.

Reasonable force (not deadly or serious)
P must have capacity to consent

D cannot exceed scope

Express (void if duress/fraud)

Implied: custom/usage
Self-Defense, Defense of Others, Defense of Property
1. timing: must be in progress or imminent

2. reasonable belief

3. amount of force that reasonably appears necessary to respond (deadly force can never be used for property)
PUBLIC (Absolute): D invades P's property to protect the community or a significant group of people

PRIVATE (limited): D invades P's property to protect personal interest. D must pay for actual harm (not nominal/punitive damages)
Tresspass to Chattels


Tresspass to Chattels (cost of repairs, loss of use)

1. interference w/P's right of possession
2. intent
3. causation
4. actual damages (chattel or possessory right)

Conversion (full value or replevin)

1. interference w/P's right of possession
2. so SERIOUS that it warrants D paying full value
3. intent
4. causation
Tresspass to Land
1. physical invasion of P's property

2. intent (D got to location on purpose)

3. causation
False Imprisonment
1. act/ommission that confines or restrains P

2. to a bounded area

3. intent

4. causation

(P must know about confinement or be harmed by it)
1. a harmful or offensive touch
2. the the P's person
3. intent
4. causation
1. D creats reasonable apprehension in P

2. of immediate harmful or offensive contact

3. intent

4. causation
1. D engages in OUTRAGEOUS condcut
2. intent or recklessness
3. causation
4. damages- severe emotional distress

Look for:
1. continuous/reptitive
2. common carrier/innkeepers
3. P is a member of fragile class (external attribute)
Bailment Duties
Owed by bailor:
1) Gratuitious, must inform of known, dangerous defects

2) For hire, known or knowable defects

Duties owed by Bailee:

1. for sole benefit of bailor, low

2. sole benefit of bailee, high

3. mutual, ordinary
Shopkeeper's Privilege
Shopkeeper has a privilege to detain suspect is he has a reasonable belief that a theft was committed and the detention is reasonable.

(deadly force cannot be used)
Lessor and Lessee
Lessee has duty to maintain premises. If volunteers to repair, negligence standard

Lessor must warn of knowable nonobvious existing defects. Convenant to repair, liable for all unreasoable conditions
Firefighters Rule
Firefighters and police officers considered licensees, but they never recover for inherent risks of the job (assumption of the risk)
One who enters land w/possessor's permission for her own purpose or business, rather than possessor's benefit.
One who enters land in response to an invitation by the landowner or tha land is held open to the public
Privilege of Arrest
Police: reasonably believe a felony has been committed & that the arestee committed it

Private Citizen: felony must have been committed & citizen must reasonably believe arrestee committed it

Misdemeanor: MUST be a breach of peace and committed in the arresting party's PRESENCE
Public Figure
Achieved pervasive fame or notoriety, or voluntarily assumes a central role in a controversy (present, on-going).
Permissive Use Statute
imposes liability for damage caused by anyone driving with the car owner's consent