Torts (Bar Prep)

Front 1

elements of a prima facie case

Back 1

(i) A duty on the part of defendant to conform to a specific standard of conduct for protection of plaintiff against an unreasonable risk of injury;
(ii) A breach of that duty by defendant;
(iii) The breach is the actual and proximate cause of plaintiff’s injury; and
(iv) Damage.

Front 2

duty of care is owed to:

Back 2

all foreseeable plaintiffs

Front 3

standard of duty of care

Back 3

depends on applicable standard of care

Front 4

majority view for potentially unforeseeable plaintiffs

Back 4

P2 can recover only if she can establish that a reasonable person would have foreseen a
risk of injury to her under the circumstances; i.e., she was located in the foreseeable
zone of danger

Front 5

minority view for potentially unforeseeable p

Back 5

P2 may establish the existence of a duty extending from defendant to her by a showing
that defendant has breached a duty owed to P1.

Front 6

rescuers as foreseeable P

Back 6

A rescuer is a foreseeable plaintiff where defendant negligently put himself or a third person in peril (i.e., danger invites rescue)
EXCEPTION: firefighter's rule

Front 7

Intended Beneficiaries of Economic Transactions

Back 7

A third party for whose economic benefit a legal or business transaction was made
(e.g., a beneficiary of a will) may be a foreseeable plaintiff.

Front 8

basic standard of care

Back 8

reasonable person.

Front 9

definition of reasonable person

Back 9

objective standard, i.e., one’s conduct measured
against what the average person would do. A defendant’s mental deficiencies and
inexperience are not taken into account (i.e., stupidity is no excuse). However, the
“reasonable person” is considered to have the same physical characteristics as defendant (but remember, one is expected to know one’s physical handicaps and to exercise the care of a person with such knowledge

Front 10

standard of care for professionals

Back 10

A professional or someone with special occupational skills is required to possess
the knowledge and skill of a member of the profession or occupation in good standing in similar communities

Front 11

Medical specialists' standard of care

Back 11

national standard

Front 12

Duty to Disclose Risks of Treatment

Back 12

duty to disclose the risks of treatment to enable a patient to
give an informed consent. A doctor breaches this duty if an undisclosed risk
was serious enough that a reasonable person in the patient’s position would
have withheld consent on learning of the risk.

Front 13

emergency situation

Back 13

defendant must act as a reasonable person would under the same emergency
conditions.
unless defendant created emergency

Front 14

statutory standards of care replacing CL

Back 14

(i) the statute provides for a criminal penalty,
(ii) the statute clearly defines the standard of conduct,
(iii) plaintiff is within the protected class, and
(iv) the statute was designed to prevent the type of harm suffered by plaintiff.

Front 15

violation of statute is____

Back 15

negligence per se. namely, establishes there was a duty and there was a breach of said duty

Front 16

when there is a duty to act

Back 16

Assumption of Duty by Acting,
Peril Due to Defendant’s Conduct;
Special Relationship Between Parties;
Duty to Control Third Persons;

Front 17

assumption of duty by acting

Back 17

One may assume a duty to act by acting. Namely, once the defendant starts acting he must do it with due care.

Front 18

Peril due to defendant’s conduct

Back 18

One has a duty to assist someone he has negligently or innocently placed in peril

Front 19

Special relationship between parties

Back 19

A special relationship between the parties may create a duty to act.
Similarly, common carriers, innkeepers, shopkeepers, and others that gather the public
for profit owe duties of reasonable care to aid or assist their patrons. In addition, places of
public accommodation have a duty to prevent injury to guests by third persons.

Front 20

Duty to control third persons

Back 20

Generally, there is no duty to prevent a third person from injuring another. An affirmative
duty may be imposed, however, if one has the actual ability and authority to control
a person’s actions, and knows or should know the person is likely to commit acts that would require exercise of this control.

Front 21

rule for when a breach occurs

Back 21

Where defendant’s conduct falls short of that level required by the applicable standard of care owed to the plaintiff.

whether it has occurred is a factissue for the trier of fact.

Front 22

proof to establish breach

Back 22

custom or usage; violation of the statute; res ipsa loquitor

Front 23

custom or usage as proof to establish breach

Back 23

it may establish breach, but does not control the question
of whether certain conduct amounted to negligence.

Front 24

violation of the statute

Back 24

Existence of a duty owed to plaintiff and breach thereof may be established as a matter of
law by proof that defendant violated an applicable statute (“negligence per se”). Causation and damages must still be established by plaintiff.

Front 25

RIL

Back 25

The
doctrine of res ipsa loquitur requires plaintiff to show that (i) the accident causing the injury
is a type that would not normally occur unless someone was negligent, and (ii) the negligence
is attributable to defendant (i.e., this type of accident ordinarily happens because of
the negligence of someone in defendant’s position). This can often be shown by evidence
that the instrumentality causing the injury was in the exclusive control of defendant.

Front 26

causation requirement

Back 26

plaintiff must show both actual cause and proximate cause.

Front 27

actual cause (cause in fact) tests

Back 27

but for, Joint Causes—Substantial Factor Test, Alternative Causes Approach.

Front 28

alternative causes approach

Back 28

This test applies when there are two acts, only one of which causes injury, but it is not
known which one. The burden of proof shifts to defendants, and each must show that
his negligence is not the actual cause. [Summers v. Tice]

Front 29

proximate cause

Back 29

overall rule: defendant generally is liable for all harmful results that are the normal incidents of
and within the increased risk caused by his acts. This is a foreseeability test

Front 30

limitation of proximate cause

Back 30

Defendant is not liable for unforeseeable
harmful results not within the risk created by defendant’s negligence. Most harmful
results will be deemed foreseeable in direct cause cases..

Front 31

Foreseeable Results Caused by Foreseeable Intervening Forces

Back 31

Defendant is liable where his negligence caused a foreseeable harmful response or reaction from a dependent intervening force or created a foreseeable risk that an
independent intervening force would harm plaintiff.

Front 32

almost always foreseeable intervening forces

Back 32

i) subsequent medical malpractice, (ii) negligence of rescuers, (iii) efforts to
protect the person or property of oneself or another, (iv) injuries caused by
another “reacting” to defendant’s actions, (v) subsequent diseases caused by a weakened condition, and (vi) subsequent accident substantially caused by
the original injury

Front 33

may be foreseeable intervening forces

Back 33

defendant's negligence must have increased the risk of harm from this. if
defendant’s negligence increased the risk of harm from these forces. (i) negligent acts of third persons, (ii) crimes
and intentional torts of third persons, and (iii) acts of God.

Front 34

foreseeable result caused by unforeseeable intervening force

Back 34

defendant liable. Defendant is liable where his negligence increased the risk of a foreseeable harmful result and that result is ultimately produced by an unforeseeable
intervening force. This rule does not apply where the unforeseeable intervening
force was a crime or intentional tort of a third person.

Front 35

unforseeable result foreseeable intervening force

Back 35

defendant not liable. (most courts)

Front 36

Unforeseeable Results Caused by Unforeseeable Intervening Forces

Back 36

not liable

Front 37

personal injury damages

Back 37

compensated for all his damages (past, present, and prospective), both
economic damages (such as medical expenses) and noneconomic damages. plaintiff suffering physical injury also may recover
damages for any resulting emotional distress.

Front 38

property damage

Back 38

The measure of damage is the reasonable cost of repair or, if the property is nearly destroyed, the fair market value at the time of the accident.

Front 39

punitive damage

Back 39

Plaintiff may recover punitive damages if defendant’s conduct is “wanton and willful,”
reckless, or malicious

Front 40

duty to mitigate

Back 40

plaintiff has a duty to take reasonable steps to mitigate damages (e.g., seek
appropriate treatment).

Front 41

transferred intent creates liability when

Back 41

1. the individual commits the same tort intended against a different person
2. the individual commits a different tort against a different person.
3. the individual commits a different tort against the same person.

Front 42

transferred intent doctrine applies to

Back 42

1. assault
2. battery
3. false imprisonment
4. trespass to land or 5. chattel

Front 43

incapacity is ____ defense

Back 43

not a good defense.
the insane and young are held liable for their intentional torts.

Front 44

elements of battery

Back 44

harmful or offensive conduct
to the plaintiff's person
intent
causation

Front 45

harmful or offensive conduct

Back 45

reasonable person standard

Defenses:
consent, implied consent if the contact is the type reasonably expected in public life.

Front 46

conduct

Back 46

can be direct or indirect

Front 47

plaintiff's person

Back 47

anything connected to the plaintiff's person, including purses.

Front 48

damages for battery

Back 48

Nominal damages available
punitive damages for malicious conduct.

Front 49

element for assault

Back 49

An act by the defendant creating a ireasonable apprehension in the plaintiff of immediate or offensive contact
intent
causation

Front 50

words as assault

Back 50

words alone are insufficient for assault, but words which would put a reasonable person at ease can negate assault.

Front 51

elements of false imprisonment

Back 51

An act or omission that confines or restrains the plaintiff to a bounded area
intent
causation

Front 52

confines or restraints

Back 52

physical force, barriers, threats of force, failure to release, and invalid use of legal authority.

does not include: moral pressure and future threats

Front 53

bounded area

Back 53

freedom must be limited in all directions

no reasonable means of escape known to the P

Front 54

IIED

Back 54

An act amounting to extreme or outrageous conduct,
intent or recklessness
causation
for damages there must be severe emotional distress

Front 55

extreme or outrageous conduct

Back 55

conduct so extreme it surpasses all bounds of decency
conduct which normally does not fall into this category may do so if:
it is continuous in nature, or directed to a susceptible plaintiff, or by a certain type of defendant (one with more power)

Front 56

liability to third parties for IIED

Back 56

if you can prove the prima facie elements
or
she was present when the injury occurred AND she is a close relative of the plaintiff AND the D knew the two above.

Front 57

trespass to land

Back 57

physical invasion of Ps real property
intent
causation
NO requirement for damages

Front 58

intent for trespass

Back 58

intent to enter the land not necessarily knowing it was owned by another.

Front 59

trespass to chattels

Back 59

an act that interferes with P's right of possession
intent
causation
damages

Front 60

damage

Back 60

doesn't have to be the chattels but at least to the possessory right.

Front 61

elements of conversion

Back 61

An act of the defendant which interferes with the P's right of possession in the chattel
interference is so serious that it warrants requiring d to pay the chattels' full value
intent
causatin

Front 62

damages for conversion

Back 62

fair market value or possession

Front 63

common law elements of defamation

Back 63

defamatory language of or concerning the plaintiff
publication thereof by the defendant to a third person
damage to P's reputation

Front 64

Constitutional protections for matters of public record

Back 64

In addition to the CL elements
need
fault on the part of the D
and falsity of the statement
-this is a defense not a prima facie element..

Front 65

Defamation referring to some members of a small group

Back 65

P can win if a reasonable person would think the statement refers to him/her.

Front 66

Publication [defamation]

Back 66

the communication of the defamation to someone other than the P

Front 67

intent to defame

Back 67

can be intentional or reckless
intent to PUBLISH.

SPECIFIC media issue: most states have statutes which mean that every newspaper article is one defamation. rather than every copy being a count of defamation.

Front 68

Liability for defamation

Back 68

for the primary publisher to the same extent as the author or speaker. Anyone who repeats the publication even if they make clear they don't believe it on the same ground as the publishers.
HOWEVER: there is no liability for someone who distributes the newspaper or plays the tape unless they should have known about the defamatory content.

Front 69

Damages required for slander

Back 69

Must prove special damages namely some pecuniary harm. However, once you prove this can also recover for general harm.

Front 70

Slander per se

Back 70

Adversely reflect on one's conduct in profession or business;
one has a loathsome disease;
one is or was guilty of a crime involving moral turpitude;
or a woman is unchaste.

Front 71

defamation on a matter of public concern

Back 71

falsity on the part of the statement, and fault on the part of the defendant.

Front 72

if P has to prove fault

Back 72

then P also has to prove falsity.

Front 73

definition of a public figure

Back 73

a public figure is someone who has achieved pervasive fame or notereity or someone who has voluntarily taken a central role in a particular public controversy.

Front 74

______ is required if it is a public figure

Back 74

malice

Front 75

Malice

Back 75

Knowledge of falsity or reckless disregard about the possibility of falsity

Front 76

If actual malice and private figure

Back 76

then damages are presumed, and don't need to demonstrate any
Additionally can recover punitive damages.

Front 77

minimum standard for private figure and a matter of public concern

Back 77

negligence
-note this is because constitutional standards don't apply if not a matter of public concern.
-if not malice then also will need to show damages.

Front 78

Absolute privilege in defamation cases

Back 78

statements made in a judicial proceeding, between spouses, in a compelled broadcast, by a legislator in proceedings, by federal executive official.

Front 79

Qualified privilege to defamation

Back 79

Can be lost through abuse.

reports of official proceeding, statements in the interest of the publisher, statements in the interest of the recipient, and statements in the common interest of the publisher and recipient.

Front 80

Four types of branches for invasion of privacy

Back 80

Appropriation of Plaintiff's picture or name;
-usually limited to commercial advantage, advertisements or products, and not just economic benefit.

intrusion upon the P's affairs or seclusion
-the act or prying must be highly offensive to a reasonable person.

publication of facts placing P's in a false light.
-highly offensive to a reasonable person under the circumstances

public disclosure of private facts about the P
-highly offensive to a reasonable person under the circumstances

Front 81

elements of invasion of privacy

Back 81

invasion of privacy
causation
-proximate causation
proof of special damages
unnecessary
-no special damages necessary. emotional distress and mental anguish sufficient

Front 82

defenses to invasion of privacy

Back 82

consent and privileges

Front 83

elements of misrepresentation.

Back 83

misrepresentatio of a material fact
scienter (knew or believed it was false or there was no basis for the statement)
intent to cause the P to actor refrain from acting in reliance upon the misrepresentation.
causation (actual reliance)
justifiable reliance
damages

Front 84

elements of negligent misrepresentation

Back 84

misrepresentation in a professioanl or business capacity
breach of duty towards a particular P
causation
justifiable reliance
damages

Front 85

interference with business relationships

Back 85

existence of a valid contractual relationship between P and a third party;
defendant's knowledge of the contract or expectancy
and
intententional interference by the D inducing a breach or termination of contract/relationship/expectancy
AND damages

Front 86

privileges for interference with business relationships

Back 86

D's conduct may be privileged
when it is a proper attempt to preserve its business or obtain business for itself

Front 87

prima facie case for malicious prosecution

Back 87

institution of criminal proceedings against the P, termination in P's favor, no probable cause for prior proceedings.
improper purpose
damages
NOTE prosecutors immune from liability

Front 88

prima facie case for abuse of process

Back 88

wrongful use of process for an ulterior purpose,
definite act or threat against P to accomplish the ulterior purpose.

Front 89

prima facie case for negligence

Back 89

1. A duty on the part of the D to conform to a specific standard of conduct for protection of P against an unreasonable risk of injury;
a breach of that duty by D;
breach and proximate cause of that injury;
damages

Front 90

duty of care

Back 90

duty of care is owed to all foreseeable Ps

Front 91

Under the Cardozo majority view what happens when the D breaches a duty to a foreseeable P and causes an injury to a third party

Back 91

Cardozo=zone of danger

second P can recover only if a reasonable person would have foreseen a risk of injury to her under the circumstances.

Front 92

Minority view on what happens when the D breaches a duty to a foreseeable P and injures a third party

Back 92

Liable (Andrews view)

Front 93

Rescuers as P in a neglience situation

Back 93

D is liable when s/he puts himherself in a position needing rescue negligently.
"danger invites rescue"

Front 94

prenatal injuries

Back 94

duty owed to a viable fetus

Front 95

intended beneficiary of economic transaction

Back 95

A third party for whose benefit a contract was made may be a oreseeable P

Front 96

standard of care

Back 96

reasonable person standard
an objective standard and though someone is expected to know and acount for their physical handicaps, a person of that person's physical characteristics.

Front 97

standards of care for professionals

Back 97

Professionals, other than medical professionals, are held to a community standard

Front 98

medical professional's standard of care

Back 98

national standard

Front 99

inkeepers' standard of care for negligence

Back 99

Innkeepers have a very high standard of care requirement.

Front 100

If the bailment is for the sole enjoyment of the bailee

Back 100

High standard of care

Bailor must inform Bailee of known dangerous defects in the chattel
if it is a bailment for hire: must inform bailee of chattel defects of which he is or should be aware.

Front 101

Duty to people off the premises

Back 101

No duty with regards to natural conditions;
Duty, however, for unreasonably dangerous artificial conditions, or structures abutting adjacent land.
One must carry out activitites so as to avoid unreasonable risk of harm to others outside the property.

Front 102

undiscovered trespasser

Back 102

no duty

Front 103

discovered or anticipated trespasser

Back 103

warn of or make safe, concealled, unsafe, artificial conditions known to the landowner involving risk of death or seriously bodily harm.
AND use of reasonable care of active operations on the property.

Front 104

Attractive nuisance doctrine

Back 104

dangerous condition on land that P is or should be aware of;
that children frequent the vicinity of the condition,
condition likely to cause injury;
and the expense of remedying the condition is slight as compared to the magnitude of the risk

Front 105

duty owed to licensees (which includes social guests)

Back 105

Possessor has the duty to warn of dangerous conditions (natural or artificial) known by the owner that create an unreasonable risk of harm.to the licensee and that the licensee is unlikely to discover
AND exercise reasonable care in the conduct of activities

NO duty to inspect and repair

Front 106

duty owed to invitees

Back 106

Possessor has the duty to warn of dangerous conditions (natural or artificial) known by the owner that create an unreasonable risk of harm.to the invitee and that the invitee is unlikely to discover
AND exercise reasonable care in the conduct of activities
AND inspect and repair nonobvious dangerous conditions.

Front 107

owner of recreational land that does not charge a fee

Back 107

no duty, unless wilfully and maliciously refuses to warn or guard against a dangerous condition or activity.

Front 108

statutory duty of care

Back 108

Statute can define additional standards of care if:

statute provides for criminal penalties, clearly defines standard of conduct, P within protected class, and statute was designed to prevent the type of harm the P suffered.

Front 109

An unexcused statutory violation is

Back 109

negligence per se (so would just need to show then causation and damages)

Front 110

Negligent infliction of emotional distress liability to a bystander

Back 110

1. the third party and the person injured were closely related
2. P present at the scene of injury
3. P personally percieved or observed the event.

Front 111

Prima facie elements of strict liability

Back 111

The nature of the D's activities imposes an absolute duty to make safe, the dangerous aspect of the activity is the actual and proximate cause of the injury, and the P suffered damage to person or property

Front 112

trespassing animals

Back 112

owner strictly liable for harm done by trespassing animal

Front 113

Wild animals

Back 113

Strict liability to licensees and invitees for injury done by wild animals so long as P didn't do anything to bring about injury.

Front 114

domestic animals

Back 114

NOT strictly liable, unless the owner has knowledge of dangerous propensities of the animal not common to his species.

Front 115

vicious watch dogs

Back 115

May be liable on intentional torts grounds even to trespassers

Front 116

An activity is abnormally dangerous if:

Back 116

creates a foreseeable risk of harm even when reasonable care is exercised by all parties. and the activity is not a matter of common usage for the community.

Front 117

duty of care when conducting an abnormally dangerous activty

Back 117

Absolute duty to make safe the normally dangerous characteristic. Owed to all foreseeable P

Front 118

Five theories of products liability

Back 118

intent, negligence, strict liability, implied warranty of merchantibility and fitness for a particular purpose, and representation theorites

Front 119

elements of any products liability claim

Back 119

defect and the existence of the defect when the product left the D'scontrol.

Front 120

manufacturing defect

Back 120

D is liable if the P can show that the product failed to perform as safely as an ordinary consumer would expect.

when a product is more dangerous than the others.

Front 121

design defect

Back 121

D could have made the product safer without serious impact on the price or utility.

when all the products are the same, but dangerous propensities.

Front 122

intent for products liability cases

Back 122

rare, but when it happens it is a battery tort.

D needed to intend the consequences, or know that they were substantially certain to occur.

Front 123

who can be liable in a negligence action

Back 123

commercial suppliers: manufacturers, wholesalers, and retailers.

Front 124

breach of duty in a negligence action

Back 124

negligent conduct of the defendant leading to the supplying of a defective product.

Front 125

strict liability in a product defect case (the most common and what should be our default)

Back 125

strict duty owed by a commercial supplier of the product, production or sale of a defective product, actual and proximate cause, and damages

Front 126

duty in a SL PD case

Back 126

the supplier owes a duty to provide a safe product.

Front 127

Implied warranty of merchantibility and fitness

Back 127

the goods are of average acceptable aquality and are generally fit for the ordinary purpose for which the goods are generally used.

Fitness for a particular purpose: when seller knows or has reason to know the particular purpose for which the goods are relying and the buyer is relying on the seller's skills and judgment in selecting the goods.

Front 128

private nuisance

Back 128

substantial unreasonable interference with another private individual's use or enjoyment of property that he actually possesses or to which he has the right of imediate possession

Front 129

substantial interference

Back 129

interference which is offensive, incovenient, or annoying to the average person in the community

Front 130

unreasonable interference

Back 130

severity of the injury must outweigh the utility of the defendant's conduct.

Front 131

public nuisance

Back 131

An act that unreasonably interferes with the health, safety, or property rights of the community

Front 132

private party recover for public nuisance

Back 132

only if the private party suffered a unique damage not suffered by the public at large.

Front 133

partners and joint ventures' vicarious liability

Back 133

each member of a partnership or joint venture is liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture.

Front 134

family car doctrine (many not every state)

Back 134

the owner of the car is vicariously liable for the torts of immediate family or household members driving the car with express or implied permission.

Front 135

Permissive use (some states)

Back 135

liability for torts of anyone driving the car with the owner’s permission

Front 136

incapacity as a defense for intentional torts

Back 136

Incapacity is NOT a defense for intentional torts.

Front 137

contact for battery must be:

Back 137

with P's person
however, note extensions of P's person will count. not purse, but if the P is riding a horse slapping the horse will be a battery..

Front 138

the time element of battery

Back 138

Battery need not occur instantly. Namely, you can take an action and it can touch the P later.

Front 139

instrumentality of battery

Back 139

the D does not have to use his body to effectuate thebattery.

Front 140

For assaults: Menacing behavior but no ability to follow through

Back 140

common sense answer. you have to think would it put the P in reasonable apprehension.

Front 141

conditioning words, in an assault claim

Back 141

would defeat the reasonable apprehension element.

no liability.

Front 142

time woulds in an assault claim

Back 142

would defeat the reasonable apprehension element.

no liability

Front 143

In a False imprisonment claim
threats

Back 143

are sufficient to constitute an act of restraint.

Front 144

the erection of a barricade leads/does not lead to a FI claim

Back 144

does not, as there are three other directions in which the P can go.
(not i the barricade is right outside the door where the P is inside)

Front 145

An omission in a false imprisonment case

Back 145

can give rise to a claim if they have a duty to help the P move around.

Front 146

an area is considered bounded if there is an escape but
(FI claim)

Back 146

1) the P does not know about it and cannot reasonably discover it
2) it is not a reasonable escape route if
dangerous, humiliating or hidden

Front 147

For a FI claim If P is oblivious that act of restraint took place

Back 147

there is no liability unless the P is harmed

Front 148

Common carrier or innkeeper's liability for IIED

Back 148

they have a heightened liabilit as they have a common law duty for courtesy.

if these ppl behave rudely in a deliberate desire to distress passenger or guest their conduct is considered outrageous

Front 149

If the P's actions in an IIED claim are directed towards a fragile P

Back 149

It is more likely that their conduct will be found outrageous. note, this fits within the general rule and is about their behavior towards the party.
examples;
children
the elderly
pregnant women (D has to know she is pregnant)

Front 150

the severe distress requirement for IIED

Back 150

doesn’t require physical harm
it will be up to the jury to see if this has been satisfied.

Front 151

throwing a tangible item in a claim for trespass to land

Back 151

throwing a tangible item can constitute trespass to land even if the item does not land on the property.
note, must be tangible item.

Front 152

Who can make a claim for trespass to land

Back 152

this is about interfering with possesory rights. so tenant can make the claim.

Front 153

NY distinction with regards to BFP and conversion of land

Back 153

a BFP cannot be held liable for conversion.

Front 154

Affirmative defenses to all the intentional torts

Back 154

consent
express
implied
Protective privileges
Self-defense
Defense of third persons
Defense of property
D will have to show proper timing, reasonable force, and reasonable belief

Front 155

the effect of reasonable mistake on protective privileges

Back 155

does not damage it.

Front 156

NY distiction with re the use of deadly force

Back 156

NY imposes the duty to retreat.
Must retreat if it is feasible to do so unless you are in your own home.

Front 157

deadly mechanical devices to defend your property

Back 157

are never allowed

Front 158

private necessity when you are helping the P

Back 158

creates no liability.

Front 159

In an emergency situation, even if it is private necessity, the D has a _____ to stay on the property

Back 159

right to stay on the property for the duration of the emergency.

the P can actually be liable for battery if he evicts or ejects the D during the emergency.

Front 160

Name calling as defamation

Back 160

Name calling is not defamation
SO LONG as the statement is conclusory.
Another exception is if it is facially an opinion but it is such an opinion that the listener would think it was based in fact.

Front 161

character traits that are generally involved with defamation suits.

Back 161

:1. Honesty.
2. lack of peacebleness
3-impugn their loyalty. Loyatly to company, religious community, etc
4-impugn morality. Sexual, moral, restraint in matters of the heart.

Front 162

in a libel case

Back 162

MBE: no need to show damages.

Front 163

in a slander case

Back 163

no damages needed if it is slander per se
otherwise, must prove damages
damages must be economic harm.

in NY: if it is not one of the per se categories AND defamatory impact is not clear on the face of the statement but requires additional evidence

Front 164

Slander per se categories

Back 164

remember in NY this is needed for libel if you don't want to show damages to.

1.A statement relating to P’s business or profession
2.A statement that P has committed a crime of moral turpitude.
3.A statement imputing unchastity to a woman.
a.Does not require promiscuity but that single woman is sexual active.
4.A statement by D that P suffers from a loathsome disease.
a. Leprosy
b. Venereal disease

Front 165

Affirmative defenses to defamation

Back 165

consent
truth
privilege (absolute and qualified)

Front 166

Absolute privileges (defenses to defamation)

Back 166

arises based on the identity of the D as it is a function of who the D is.
1. spousal immunity
2. governmental officers engaged in conduct of their official duties.
legislators, judges, lawyers.

Front 167

qualified privilege

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determined on a case-by-case basis.
arises when there is a strong social interest in encouraging candor.
Defendant must 1. Have a reasonable belief that what he is saying is accurate. 2.Have to stay within scope of privilege.

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If the P is a public figure then the fault necessary for a defamation case

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intent or recklessness

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If the P is not a public figure, but it is a matter of public concern, then the fault requirement is:

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negligence

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the privacy tort(s) recognized in NY:

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the ONLY is:

appropriation.

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the falsehood in a false light privacy tort:

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need not be defamatory.

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intent requirement for a false light tort

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no intent requirement, even a good faith error would subject you to a liability.

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damages in a false light sitution include:

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emotional damages

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IN NY
Prima facie tort

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Intentional infliction of pecuniary harm w/o justification.

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theft of trade secrets (NY)

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1. P must possess a valid trade secret.
a. There must be information that provides a business advantage to the possessor or owner

2. D must take it by improper means.
a. Traitorous insider.
i. Breach of trust. (implied confidentiality and relationship when the traitor first learned the secret)
ii. Initially learned secret legitimately.
Industrial spy
i. Outsider who tracks through security.
ii. Breaking a wall is always improper.
iii. Violate ordinary standards of commercial morality.

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NY Actions for prenatal injuries in negligence

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Impact on the body of a pregnant woman.
a. If the child is thereafter born with injuries, the child has a cause of axn in his own name.
2. Doctor misdiagnoses birth defects
a. Parents can recover for the cost of caring for the child that are in addition the costs of raising a healthy child.
3. Doctor botches sterilization.
a. No recovery in NY.

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in a negligence case if someone has some specialized knowledge

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they are presumed to know the specialized knowledge. so it will be added to the reasonable person.
basically it will be a reasonable person with that knowledge.

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children in a negligence acton

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Children four through eighteen are held to the standard of care of a hypothetical child, of similar age, experience, and intelligence acting under similar circumstances.

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However, if the child is engaging in an adult activity

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then a normal reasonable person standard.

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NY for duties owed for injuries to entrants on the land.

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NY says reasonably prudent person regardless of the person's status as trespasser etc.

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NY's firefighter doctrine

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narrowed. the firefighter' doctrine applies only to employees or coworkers (so the firefighter could sue homewoner)

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NY good samaritan laws

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if you are a specialist trained and you decide gratuitiously to rescue someone no liability. the specialists are: doctor, nurse, vet.

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NY twist on bystander claim for negligent infliction of emotional distress

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the P must be in the zone of danger.
importantly, NY's bias is to narrowing the scope of this tort. something to remember.
And in NY the classes are parent, spouse, child. NOT guardian.

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preliminary injunctions

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rare. have to satisfy the normal requirements for an injxn
AND
must show that they will likely succeed on the merits
AND that they will suffer an irreparable injury in the absence of a preliminary iinjunction.

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requirements to be able to get an injunction as a remedy

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1. That there is no adequate remedy at law.
for instance: Impecunious defendant, harm impossible to measure in monetary terms, conduct is ongoing, happens all the time making it onerous to get damages each time.
2. Tort in question impinges on a property interest or protectable right.
3. Injxn is enforceable.
a. Courts nervous esp abt this with positive injxn.
b. Have to show you can enforce it
4. Balance of hardship tips in favor of P. benefit to him outweighs the harm D would suffer.

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defenses to getting an injunction

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1. Unclean hands. The argument here is that the D can show the P himself is guilty of some form of misconduct.
2. Laches. Prejudicial delay. (note prejudicial)
3. First amendment. be wary about asking to restrict speech.

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vicarious liability

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1. employer/employee
scope of employment. but for intentional torts, if the job creates friction between employee and customer.
2. for IC torts if the tort happens to an invitee on the premises
3.3) Automobile owners and drivers. No vicarious liability. UNLESS you lend your car so they do an errand for you, vicarious liability.
1. NY distinction: a permissive use state:
4. parent/child. no liabilit unless statute
NY statutorily makes parents liable up to a certain statutory amount.

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NY's additional slander per se category

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imputation of homosexuality.

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NY defenses to invasion of privacy

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1. prior written consent
2. a photographer exhibiting his work unless continued after written notice of objection
3. .... things the maker has sold or disposed of with his name, picture, or portrait used in connection therewith.

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NY's rule about who can sue for malpractice

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in NY only the client can sue the attorney for malpractice.

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NY's nps

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violation of a state statute constitutes nps. unexcused breach of a regulation or local ordiance is only some evidence of negligence.