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142 Cards in this Set
- Front
- Back
Three main elements of intentional torts |
1) Act by defendant 2) Intent 3) Causation |
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Intentional torts- Act by defendant element rule |
the act requires a voluntary movement by a defendant |
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Intent definition for intentional torts |
intent may be either specific or general (with substantial certainty that the consequences will result) |
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Ways intent can be transferred (3) |
1) commits a different tort against that person 2) commits the same tort as intended but against a different person 3) commits a different tort against a different person |
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Transferred intent is limited to the following intentional torts (5) |
1) battery 2) assault 3) false imprisonment 4) trespass to land 5) trespass to chattels |
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Causation definition |
d's causes the result when his conduct was a substantial factor in bringing about the injury |
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Battery elements (4) |
1) harmful or offensive conduct 2) to the plaintiff's person (anything connected to the plaintiff) 3) intent 4) causation |
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Harmful contact defined |
contact is harmful it causes actual injury, pain, or disfigurement |
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Offensive contact defined |
contact is offensive if it would considered offensive to a reasonable person |
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Assault elements (4) |
1) act by D that creates a reasonable apprehension in plaintiff 2) of immediate harmful or offensive contact 3) intent 4) causation |
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Effect of words on reasonable apprehension |
words alone are not enough. The words must be coupled with conduct |
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False imprisonment elements (3) |
1) an act or omission by D that confines or restrains P to a bounded area 2) intent 3) causation |
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Two common insufficient methods of confinement for false imprisonment |
1) moral pressure 2) future threats |
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Time of confinement rule |
it is irrelevant how short the period of the confinement is |
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Punitive damages in intentional torts |
can be recovered if D acted maliciously |
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IIED elements (4) |
1) d's acts amounts to extreme and outrageous conduct 2) intent or recklessness 3) causation 4) damages- severe emotional distress |
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extreme and all outrageous conduct defined |
conduct that transcends all bounds of decency |
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conduct that is not normally outrageous may become so if...(3) |
1) it is continuous 2) directed at certain type of plaintiff (child, elderly, pregnant woman) 3) committed by a common carrier or inkeeper |
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Causation in bystander cases for IIED |
1) p was present when the injury occurred 2) p is a close relative of the injured person 3) and D knew of 1 and 2 or just use regular IIED elements |
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Trespass to land elements (3) |
1) physical invasion of plaintiff's real property 2) intent 3) causation |
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Physical invasion for trespass |
can be by a person or object, but not an intangible matter such as vibrations or odor |
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Intent for trespass |
D needs to only intend to enter onto that particular space, doesn't matter if he knows who owns it |
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Trespass to chattels elements (4) |
1) act by D that interferes with P's right of possession 2) intent 3) causation 4) damages |
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Two types of interference with trespass to chattels |
1) damaging the chattel 2) depriving the plaintiff of his lawful right of possession |
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Intent requirement with trespass to chattels |
intent to trespass is not required. All that is required is that D intended to do the act. D's mistaken belief of ownership is not a defense |
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Conversion elements (4) |
1) act by D that interferes with P's right of possession in the chattel 2) interference is so serious that it warrants requiring D pay full value of chattel 3) intent 4) causation |
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Replevin |
P recovering possession of a chattel that he has rightful ownership (conversion cases) |
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D is not liable of P gives express consent to D's conduct, unless ( 3 exceptions ) |
1) mistake will undo express consent if D knew of and took advantage of the mistake 2) consent induced by fraud, if to an essential matter 3) consent obtained by duress |
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Apparent consent (type of implied consent) |
consent in that which a reasonable person would infer from custom and usage or plaintiff's conduct |
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Consent implied by law (type of implied consent) |
consent that arises when action is necessary to save a person's life or some other important interest in the person or property |
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Three types of people incapable of giving consent |
1) drunk 2) very young children 3) incompetents |
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Self defense in intentional tort cases rule |
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 |
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Duty to retreat rule |
Majority rule is that there is no duty to retreat. Modern trend imposes that duty when using deadly force, except when D is in their home |
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Self defense by initial aggressor rule |
defense is not available to this person, unless D uses non-deadly force, and P responded with deadly force |
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Defense against property rule |
one may use reasonable force to prevent the commission of a tort against real or personal property |
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Two primary requirements before you can use force to defend property |
1) request to desist or leave, unless it is futile or dangerous 2) must be before the the tort has been committed, or in hot pursuit of another |
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Necessity defense |
person may interfere with real or personal property when it is reasonably and apparently necessary to avoid threatened injury |
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Two types of necessity |
1) public- act for public good, complete defense 2) private- act is solely to benefit a limited number a people (still liable) |
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Discipline defense |
Parent or teacher may use reasonable force in disciplining children |
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Defamation elements (4) |
1) defamatory language 2) of or concerning the plaintiff 3) publication by the D to a third person and 4) damage to plaintiff's reputation |
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Constitutional requirements for defamation |
If the defamation involves a matter of public concern, Constitution requires the plaintiff to also prove the falsity of the defamatory language and fault on part of D |
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Defamatory language definition |
defined as language tending to adversely affect one's reputation |
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Opinion as defamatory |
Opinion is defamatory only if it is based on specific facts that are defamatory |
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Of or concerning the plaintiff requirement for defamation |
P must establish that a reasonable listener/reader would understand that the defamatory statement referred to P |
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Small group defamation (of or concerning) |
if statement refers to all members, each person must just show that there are a group member if statement refers to some members, must meet the reasonable person requirement of or concerning |
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Large group defamation |
No defamation because you can't prove the of and concerning element |
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publication of defamatory statement-definition |
publication means communication of the defamation to a third person who understands it |
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publication of defamatory statement- intent requirement |
publication can be made either intentionally or negligently. It is the intent to publish, not the intent to defame |
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Secondary publishers and liability for defamation |
secondary publishers don't repeat the statement (ex. selling newspapers). They are only liable if they know or should have known of the defamatory content |
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Libel |
written or printed publication of defamatory language |
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Libel damages |
P does not need to prove special damages and general damages are presumed |
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Slander |
slander is spoken defamation |
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Slander damages |
P must prove special damages (pecuniary loss), unless it is slander per se |
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Slander per se categories are defamatory statements that (4 options) |
1) adversely reflect on one's conduct in a business/profession 2) one has a loathsome disease 3) one is or was guilty of a crime involving moral turpitude or 4) a woman is unchaste |
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Radio and television broadcasts are treated as (for defamation) |
Libel |
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Matters of public concern defamation fault (public figure or public official) |
Public figure must prove actual malice by 1) knowledge that the statement was false or 2) reckless disregard as to whether it was false |
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Public figure definition |
a person is a public figure by achieving pervasive fame or notoriety or by voluntarily assuming a central role in a public controversy |
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Matters of public definition fault- (private plaintiff) |
Private plaintiff must prove the defendant was negligent regarding the falsity of the statement |
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Damages for private plaintiff in defamation |
If statement was of public concern and there was only negligence, then you only get actual damages. If there was malice, then there are presumed damages and punitive damages are allowed |
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Defenses to defamation |
1) consent 2) truth of the statement 3) actual privilege (legislatures, judicial proceedings) 4) qualified privilege |
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Appropriation of plaintiffs picture or name |
an unauthorized use of plaintiff's picture or name for defendant's commercial advantage |
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Intrusion on plaintiff's affairs or seclusion |
prying or intruding into P's private matters that are highly offensive to a reasonable person |
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False light |
where one attributes to plaintiff views he does not hold or actions he did not take. Must be highly offensive to a reasonable person |
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First amendment limitation on false light |
if the matter is of public interest, actual malice on D's part must be proved |
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Public disclosure of private facts |
public disclosure of private information that would be highly offensive to a reasonable person of ordinary sensibilities |
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Proof of damages for invasion of privacy |
Don't need to show special damages. Emotional distress and mental anguish is sufficient |
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Intentional misrepresentation elements (6) |
1) misrepresentation of material fact 2) scienter (knew or believed it was false) 3) intent to induce P's reliance on statement 4) causation (actual reliance) 5) justifiable reliance and 6) damages (actual pecuniary loss) |
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Duty to disclose material facts (3) |
1) fiduciary relationship 2) Selling real property and P doesn't know of the fact, or can't reasonably discover it 3) has spoken and her utterance deceives the plaintiff |
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Liability for intentional misrepresentation to third party |
if a third party relies on D's representation, D is liable if they could reasonably foresee that the third party would rely on it |
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Reliance on an opinion |
Generally must be a fact, so no liability, Unless D has superior knowledge of the subject matter |
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negligent misrepresentation elements (5) |
1) misrepresentation by D in a business or professional capacity 2) breach of duty 3) causation 4) justifiable reliance 5) damages |
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Negligent misrepresentation is generally limited to what type of setting |
Commercial setting |
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Interference with business relations elements (4) |
1) existence of a valid contractual relationship between P and 3rd party or valid business expectancy 2) D's knowledge of this relationship 3) intentional interference by inducing a breach of termination of the relationship 4) damages |
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Defense to interference with business relations |
D's conduct may be privileged where it is a proper attempt to obtain business for itself or protect its interest |
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Negligence elements (4) |
1) duty 2) breach of duty 3) actual and proximate cause 4) damages |
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To whom is a duty of care owed? |
To all foreseeable plaintiffs |
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Who is a foreseeable plaintiff? |
If D's conduct creates an unreasonable risk of injury to persons in the position of P, there is a duty of care to them |
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Majority rule on unforeseeable second plaintiff |
P2 can only recover if she can establish that they were located in the foreseeable zone of danger |
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Minority view (andrews dissent) on forseeability |
Everyone is foreseeable |
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When is a rescuer a foreseeable plaintiff? |
When D negligently put himself or third party in peril |
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Firefighters rule |
Firefighters and police officers may be barred from negligence recoveries because of assumption of risk |
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What damages may a parent recover for breach of duty to a viable fetus by a third party? |
1) medical expenses 2) pain and suffering from labor CANT recover child rearing expenses |
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Basic standard of care rule |
You must exercise the amount of care that would be taken by a reasonably prudent person under similar circumstances |
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Standard of care- mental and physical characteristics rule |
1) mental deficiencies and inexperience are not taken into account 2) physical characteristics are taken into account |
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Standard of care- professionals |
A professional or someone with special occupational skills is required to possess the knowledge and skill of a member of the profession in good standing in similar communities |
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Doctor's duty to disclose risks of treatment |
Doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person would have withheld consent on learning of this risk |
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Standard of care- children |
children are held to the standard of a child of like age, education, intelligence, and experience |
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Standard of care- children exception |
children engage in adult activities may be required to conform to an adult standard of care |
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Age where child is deemed incapable of being negligent |
4 |
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Standard of care for common carriers and innkeepers |
Higher degree- liable for slight negligence if P is a passenger or guest |
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Bailee's standard of care depends on what? |
Who benefits from the bailment |
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Bailee's standard of care- for benefit of bailor |
Low standard of care |
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Bailee's standard of care- for benefit of bailee |
Higher standard of care |
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Bailee's standard of care- mutual benefit |
Ordinary negligence |
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When looking at duties of landowner, make distinction between two types of dangers |
1) natural conditions (usually no duty except falling tree branches) 2) artificial conditions |
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Duty owed to undiscovered trespasser |
No duty owed |
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Duty owed to undiscovered or anticipated trespassers |
1) warn of or make safe concealed artificial conditions known to the landowner than can cause serious bodily injury 2) reasonable care in active operations |
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Type of care owed when attractive nuisance doctrine applies |
Ordinary care |
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Elements needed to apply attractive nuisance doctrine (4) |
1) dangerous condition that owner is or should be aware of 2) children frequent the vicinity of the condition 3) likely to cause injury 4) expense of remedying is slight compared with magnitude of the risk |
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Duty owed to licensee's |
1) warn of and make safe dangerous conditions known to the owner and that licensee is unlikely to discover 2) reasonable care in active operations |
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Duty owed to invitees |
1) warn and make safe dangerous conditions that licensee is unlikely to discover 2) make reasonable inspections to discover nonobvious dangers 3) reasonable care in active operations |
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Duties of lessor of land |
Duty to maintain the premises in safe condition. Can be liable to tenant or to tenant's guests |
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Safety statutes may replace common law duty of care if (3 things) |
1) clearly stated specific duty imposed by statute 2) P is within the protected class and 3) statute was designed to prevent the type of harm suffered |
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Excuse for violation of safety statute |
If compliance would cause more danger than violation, no breach of duty |
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To collect on negligent infliction of emotional distress, what are two requirements for P? |
1) Within the zone of danger (threat of physical impact) 2) Physical symptoms (emotional distress not enough) |
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When do you have an affirmative duty to act? |
1) negligence put person in peril 2) special relationship (parent, innkeeper, common carriers) 3) D has ability and authority to control third person from acting |
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Res Ipsa Loquitur elements (2) |
1) accident causing the injury is a type that would not normally occur unless someone was negligent 2) negligence is attributable to D (D was in control) |
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Effect of meeting Rs Ipsa elements (2) |
1) prima facie case of negligence 2) no directed verdict may be given to D |
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Can the trier of fact reject a prima facie case of res ipsa? Whats the result? |
YES! So do not give a directed verdict to either P or D |
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Actual cause tests |
"But for" Substantial Factor - joint causes bring about injury Alternative causes - two acts, only one causes the injury; burden of proof shifts to Ds |
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Proximate cause |
foreseeability test; D is liable for all harmful results that are the normal incidents of and within the risk caused by his acts |
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Damages for personal injury and property damage |
Personal injury - can recover for past, present, and future economic damages and noneconomic damages such as pain and suffering Property - measure of damage is the cost of repair, or if destroyed, fair market value |
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collateral source rule |
damages are not reduced because plaintiff received benefits from other sources (like health insurance) |
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Assumption of risk elements |
Plaintiff knew of the risk and voluntarily proceeded in the face of the risk |
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Contributory negligence |
negligence on the part of the plaintiff that contributes to injuries does not apply to wanton and willful misconduct or intentional tortious conduct last clear chance doctrine permits plaintiff to recover despite her contributory negligence |
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Comparative Negligence |
Plaintiff's contributory negligence is not a bar to recover but instead reduces damages accordingly Partial comparative negligence - bars recover if negligence was more serious than defendant's negligence Pure - allows recovery no matter how great plaintiff's negligence was |
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Strict liability prima facie case |
1. nature of the D's activity imposes an absolute duty to make safe 2. the dangers aspect of the activity was the actual and proximate cause of P's injury 3. plaintiff suffered damage to person or property |
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Abnormally dangers activity requirements |
1. activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors 2. the activity is not a matter of common usage in the community |
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Common elements to impose products liability |
1. defect 2. existence of the defect when the product left defendant's control |
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Types of products liability defects |
Manufacturing - product emerges from mfg different from and more dangerous than the products that were made properly Design - all products of the line are the same but have dangerous propensities Inadequate warnings - mfg fails to give adequate warning as to the risks involved with product that may not be apparent to users |
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Proving products liability defect |
Mfg defect - product failed to perform as safely as an ordinary consumer would expect (anticipating reasonable misuse) Design defect - D could have made product safer without serious impact on the product's price of utility ("feasible alternative") Gov't Safety Standards - noncompliance establishes defect; compliance is evidence, but not conclusive, that product is not defective Unavoidably safe products - no liability for dangerous products if danger is apparent and there is no safe way to make product (e.g., knives) |
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Products liability based on negligence |
1. Duty (owed to all foreseeable plaintiffs) 2. breach of duty (negligent conduct leading to supplying the defective product) 3. actual and proximate cause 4. damage |
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Strict tort liability products liability |
1. commercial supplier of a product 2. producing or selling a defective product 3. actual and proximate cause 4. damages |
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Implied warranty of merchantability |
sale by merchant goods must be of average acceptable quality and generally fit for the ordinary purpose for which the goods are used |
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Implied warranty of fitness for particular purpose |
arises when seller knows or has reason to know the particular purpose for which goods are required and that the buyer is relying on the seller's skill and judgment in selecting the goods |
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Express Warranty |
any affirmation of fact or promise concerning goods that becomes part fo the basis of the bargain |
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Private nuisance elements |
substantial and unreasonable interference with another private individual's use or enjoyment of property that he actually possesses or to which he has a right of immediate possession |
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Substantial interference |
interference that is offensive, inconvenient, or annoying to the average person in the community |
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Unreasonable interference |
severity of the inflicted injury must outweigh the utility of defendant's conduct |
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Public Nuisance Elements |
an act that unreasonably interferes with the health, safety, or property rights of the community |
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Recovery by private party for public nuisance |
private party must suffer unique damage not suffered by public at large |
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Nuisance Abatement/Self-help |
Private nuisance - available after notice to D and his refusal to act; only necessary force allowed Public - only public authority or private party who suffered unique damage can seek injunction or abatement |
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Doctrine of respondeat superior |
master/employer is liable for tortious acts committed by servant/employee that occur within the scope of the employment relationship |
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Liability for intentional supports under respondeat superior arises when: |
1. Force is authorized in the employment 2. friction is generated by the employment 3. employee is furthering the business of the employer |
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Liability for independent contractors |
1. inherently dangerous activities 2. duty, because of public policy, is non-delegable |
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Liability of partners or joint venturers |
Each member is vicariously liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture |
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Liability for automobile owner for driver |
No liability ex - family car doctrine ex - permissive use (driving with owner's consent) ex - liability for own negligence under theory of negligent entrustment |
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Joint and several liability |
Where or two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable (liable to plaintiff for the entire damage occurred) |
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Methods of apportionment for contribution |
1. comparative contribution = imposed in proportion to the relative fault of the various defendants 2. equal shares - minority; apportioned in equal shares regardless of fault |
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Situations where indemnity is available |
1. contract 2. vicarious liability 3. strict products liability 4. identifiable difference in degree of fault |
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Survival of Tort Actions |
Acts that allow one's cause of action to survive death
Recovery goes to estate |
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Wrongful death |
Acts that grant recovery for pecuniary injury resulting to the spouse and the next of kin |