Torts, Negligence, Contracts

Front 1

1. An affirmative and volitional act

2. With intent to cause a harmful or offensive contact with the plaintiff (or a third person)

OR

With intent to cause an apprehension of an immediate harmful or offensive contact

3. That creates in the plaintiff a reasonable apprehension of said contact

Back 1

ASSAULT

Front 2

1. Defendant intentionally

2. Used Plaintiff’s Identity (Name, Likeness, or other identifying characteristics)

3. For advertising or other trade purposes

4. (Such use must be knowing in order to get punitive damages)

Back 2

APPROPRIATION

Front 3

1. An affirmative and volitional act

2. With intent to cause a harmful or offensive contact with the plaintiff (or a third person)

3. That directly or indirectly causes a harmful or offensive contact with the person of the plaintiff or an object closely identified with the plaintiff’s body

Back 3

BATTERY

Front 4

1. An affirmative and volitional act

2. With intent to exercise dominion or control over the personal property of another

3. Causation

4. The dominion or control must be so great as to require the actor to repay the full value of the personal property (not a bright line rule – though failure to rise to this standard might still be trespass to chattels)

Back 4

CONVERSION

Front 5

1. Publication

2. The statement tends to harm the reputation

3. The statement was of and concerning plaintiff

4. The statement was false

5. Plaintiff was actually harmed

6. (note: no need for plaintiff to prove falsity, but truth is still a defense for defendant)

Back 5

DEFAMATION
(Plaintiff is a private figure AND the matter is of private concern)

Front 6

1. Publication

2. The statement tends to harm the reputation

3. The statement was of and concerning plaintiff

4. The statement was false

5. Defendant was, at least, negligent with regard to the truth or falsity of the statement

Back 6

DEFAMATION
(Plaintiff is a private figure AND the matter is of public concern)

Front 7

1. Publication

2. The statement tends to harm the reputation

3. The statement was of and concerning plaintiff

4. The statement was false

5. Defendant acted with either actual malice or a reckless disregard for the truth or falsity of the statement

Back 7

DEFAMATION
(Plaintiff is a public figure AND the matter is of public concern)

Front 8

a. Consent in Fact
b. Apparent Consent
c. Implied in Fact Consent
d. Implied in Law Consent
e. Informed Consent
f. The Emergency Privilege

(Consent may, in turn, be invalidated by Duress, Fraud, or a Lack of Capacity on the part of the Plaintiff)

Back 8

DEFENSES TO INTENTIONAL TORTS


1. CONSENT

Front 9

Generally, this uses the same analysis as for self defense, except the actor puts herself into the shoes of a third party in peril

Also, some courts will hold the actor liable for their mistake.

Back 9

DEFENSES TO INTENTIONAL TORTS


3. DEFENSE OF OTHERS

Front 10

Generally, like the analysis for non-deadly self defense.

Deadly force is NEVER allowed for the defense of property

Back 10

DEFENSES TO INTENTIONAL TORTS


4. DEFENSE OF PROPERTY

Front 11

An actor is privileged to act when threatened (or when the actor reasonably believes themselves to be threatened) with imminent and serious harm AND the act itself is reasonable

Note: the actor may still be held liable for actual damages arising from their privileged action

Back 11

5. NECESSITY

a. Private Necessity

Front 12

An actor is privileged to act if the public is threatened with an imminent and serious harm and the response to such harm is reasonable.

Back 12

b. Public Necessity

Front 13

An actor may use force that is intended or likely to be deadly, or to cause serious bodily harm, if:

a. The actor reasonably believes that another is about to intentionally inflict upon the actor an unprivileged harmful or offensive contact AND
b. The actor reasonably believes that they are thereby being put in peril of death or serious bodily harm AND
c. The actor reasonably believes that the peril can safely be prevented only by the immediate use of deadly force AND
d. The actor reasonably (or correctly) believes that the peril cannot be avoided safely by retreat or relinquishment of any right or privilege

(However, letter “d” does not apply if the retreat would be from the actor’s dwelling, the right or privilege is to prevent the intrusion upon the dwelling of the actor, or the right or privilege is the right to make a lawful arrest)

Back 13

DEFENSES TO INTENTIONAL TORTS
2. SELF DEFENSE (with deadly force)

Front 14

An actor may use force that is not intended or likely to be deadly, or to cause serious bodily harm, if:

a. The actor reasonably believes that another is about to intentionally inflict upon the actor an unprivileged harmful or offensive contact AND
b. The force used by the actor in self defense is reasonable

Back 14

DEFENSES TO INTENTIONAL TORTS


2. SELF DEFENSE (w/out deadly force)

Front 15

If an actor behaves reasonably, then his or her action is allowed.

Back 15

6. THE UMBRELLA DEFENSE

Front 16

1. An affirmative and volitional act

2. With intent to confine the plaintiff (or a third person) within boundaries set by the actor

3. That directly or indirectly results in such confinement without a reasonable means of escape

4. And plaintiff is conscious of the confinement OR is harmed by it

Back 16

FALSE IMPRISONMENT

Front 17

1. Defendant intentionally

2. Published

3. Which publication placed Plaintiff in a “false light” that would be highly offensive to a reasonable person

4. Defendant had knowledge of, or acted with reckless disregard for the falsity of the publicized matter

Back 17

FALSE LIGHT

Front 18

1. An affirmative and volitional act of representation

2. Of material facts or conditions

3. With knowledge that the representations concerning those facts or conditions are false (or with reckless disregard for their falsity)

4. Coupled with intent to induce Plaintiff to rely upon the representations

5. Plaintiff was justified in his or her reliance upon the representations

6. Plaintiff suffered damages caused by his or her reliance

(But note: “mere puffery”)

Back 18

FRAUDULENT MISREPRESENTATION

Front 19

1. An affirmative and volitional act

2. That is either intentional OR reckless

i. With the purpose of inflicting severe emotional distress OR
ii. With a substantial certainty that severe emotional distress will occur OR
iii. With deliberate disregard for a high probability that severe emotional distress will occur

3. The act consists of extreme and outrageous conduct

4. That causes severe emotional distress for the plaintiff

Back 19

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Front 20

1. Defendant intentionally intruded

2. Via unreasonable or improper means

3. From which intrusion confidential information was (or nearly was) obtained

Back 20

INTRUSION INTO PLAINTIFF’S PRIVATE AFFAIRS

Front 21

1. Defendant intentionally

2. Published

3. Information about the Plaintiff to a wide audience

4. The information was private and a reasonable person would not want it publicized

Back 21

PUBLIC DISCLOSURE OF PRIVATE FACTS

Front 22

Liability for the Employer for acts committed by an employee IF:

1. The act was within the scope of Employment OR
2. The act was explicitly authorized by the employer (or an authorized party) OR
3. The actor was a manager OR
4. The actor was an agent of employer who was unfit for the duty assigned to her OR
5. The act was ratified or approved of after the fact by employer or some other person with the power to so ratify or approve the action.

Back 22

RESPONDEAT SUPERIOR

Front 23

1. An affirmative and volitional act

2. With intent to enter or remain on (or to cause some other person or object to enter or remain on) land

3. That belongs to another

4. (Both defendant’s knowledge of the true ownership of the land and harm to plaintiff are irrelevant – the harm is against the plaintiff’s property interests)

Back 23

TRESPASS

Front 24

An actor who intentionally causes another person harm is subject to liability for that harm.

Back 24

THE UMBRELLA TORT

Front 25

1. Common Sense – did the defendant act reasonably or unreasonably?
2. BPL – the burden of taking precautions must be LESS THAN the probability of harm multiplied by the loss (does the utility of the action outweigh the risk of harm?)
3. Did defendant violate a custom (persuasive, but not dispositive)
4. Did defendant violate a statute or other law (maybe negligence PER SE)
5. Res Ipsa Loquitor

Back 25

BREACH

Front 26

In some circumstances, or with some activities, actors may be held to a Strict Liability standard in which the elements of DUTY and BREACH are not relevant. The law has decided that, for some activities, any harm that results will have liability for the actor, regardless of whether or not that actor was negligent (breached a duty of reasonableness, etc.)

Back 26

STRICT LIABILITY

Front 27

1. DUTY
2. BREACH
3. ACTUAL CAUSE
4. PROXIMATE CAUSE
5. HARM

Back 27

NEGLIGENCE

Front 28

To act as a reasonable minor with the age, mental capacity, and experience of a minor of similar age.

UNLESS the minor is engaged in an adult activity that is INHERENTLY DANGEROUS.

(A child younger than seven cannot be held liable for negligence.)

Back 28

DUTY

For minors

Front 29

To act as a reasonable adult with:

a. Ordinary knowledge and skill AND
b. Any superior knowledge or skill he or she possesses AND
c. Ordinary level of mental capacity AND
d. His or her own physical attributes

Back 29

DUTY

Front 30

To possess (and exercise) the skill and knowledge of an ordinary professional in the field who is in good standing in the national community.

(Note: this standard applies is the person is actually a professional or merely holds themselves out as one.)

Back 30

DUTY

For professionals

Front 31

a. Activities that are adjudged to be ABNORMALLY DANGEROUS are subject to Strict Liability for harms that occur as a direct result of such activities.

Back 31

SPECIAL DUTIES

III. ABNORMALLY DANGEROUS ACTIVITIES

Front 32

a. Wild Animals – Defendant will be held to a strict liability standard if defendant owns or controls the animal

b. Domesticated Animals – Defendant will be held to a strict liability standard only if defendant had reason to know of the animal’s dangerous propensities

Back 32

SPECIAL DUTIES

II. ANIMALS (and Strict Liability)

Front 33

a. Trespassers: An owner of land DOES NOT owe a duty of reasonable care to trespassers but must merely refrain from WILLFUL, WANTON, OR RECKLESS CONDUCT

i. Exception 1: owner knows (or should know) that the trespasser is on the land, the owner must act reasonably
ii. Exception 2: owner must warn of concealed traps
iii. Exception 3: child trespassers incur reasonable care

Back 33

SPECIAL DUTIES

I. DUTIES OWED BY LANDOWNERS TO ENTRANTS ONTO THEIR LAND

Front 34

b. Licensees and Invitees (those who come on to the owner’s land with the consent – real or implied – of the owner):

Owners of land owe licensees and invitees a full duty of reasonable care

Back 34

SPECIAL DUTIES

I. DUTIES OWED BY LANDOWNERS TO ENTRANTS ONTO THEIR LAND

Front 35

a. Generally, there is never a duty to rescue (exceptions: special relationships, instrumentality)
b. A rescue, once begun, must be completed (or attempted to be completed)
c. Good Samaritan laws protect rescuers from liability for harm caused during the rescue

Back 35

SPECIAL DUTIES

IV. RESCUERS

Front 36

a. Three requirements:
i. Release given to defendant must have been CLEAR, UNAMBIGUOUS, and EXPLICIT in expressing intent to release the defendant from liability
ii. The act of negligence that led to the harm must be reasonably related to the purpose for which the release was given
iii. The Release must not be contrary to public policy

b. If all three: TOTAL BAR to recovery

Back 36

DEFENSES TO NEGLIGENCE

III. EXPRESS ASSUMPTION OF RISK

Front 37

a. The Plaintiff voluntarily participated in the activity which led to the harm
b. The harm fell within the “scope of risk” assumed by the Plaintiff (those injury causing events which are either known, apparent, or reasonably foreseeable possible consequences of participation)
c. If both of the foregoing are satisfied: TOTAL BAR to recovery

Back 37

DEFENSES TO NEGLIGENCE

IV. IMPLIED ASSUMPTION OF RISK

Front 38

a. Perform the negligence analysis to Plaintiff’s actions
b. Does Plaintiff’s percentage of fault exceed Defendant’s (51%)?
c. If YES, this is a TOTAL BAR to recovery, otherwise . . .
d. Plaintiff’s recovery is reduced by that percentage attributable to her

Back 38

II. Comparative Negligence (Modified – the 50% rule)

Front 39

a. Perform the negligence analysis to Plaintiff’s actions
b. If all elements have been satisfied, what is the percentage of the harm attributable to Plaintiff?
c. Plaintiff’s recovery is reduced by that percentage

Back 39

I. Comparative Negligence (Pure)

Front 40

The Plaintiff has a duty to mitigate her damages if she can; if she fails to do so, her award can be reduced or denied, based upon the circumstances

Back 40

DEFENSES TO NEGLIGENCE

V. PLAINTIFF FAILED TO MITIGATE DAMAGES

Front 41

a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer.


Unless the means of acceptance is specifically set forth in the offer, the offeree may accept the offer by either words or by performance reasonable in the circumstances.

Back 41

ACCEPTANCE

Front 42

A tells B that she will not be able to perform under the contract they have together, though, to this point in time, she has fully performed.

This is an _____ and, if A’s communication that she will not be able to perform was unequivocal and it would be reasonable to do so, B may treat A’s communication as an immediate breach if she so wishes.

Back 42

ANTICIPATORY BREACH

Front 43

1. Merchant A and Merchant B are negotiating the purchase and sale of 1000 widgets.
2. Merchant A sends a contract to Merchant B for signature.
3. Merchant B adds or alters provisions of that contract and returns it to Merchant A.
4. Is there a Contract?
5. (yes)
6. But what are the terms of this contract?
7. They are whatever terms both versions have in common, plus whatever terms are new UNLESS
8. Those new provisions MATERIALLY alter the contract or are EXPRESSLY objected to within a reasonable time.
9. Missing terms are filled in by the court.
10. “Material Terms are those affecting Price, Payment, Quality, Quantity, Delivery, or Liability/Dispute Settlement.
11. How to avoid this outcome: if possible, expressly condition acceptance upon accepting the contract in its offered state, without modification.
12. What if the contract is between a merchant and a non-merchant?
13. Then the differing or additional terms will be regarded simply as proposals to be separately accepted or rejected.
14. Note: a contract will still exist as to any terms that are not disputed or different!

Back 43

THE BATTLE OF THE FORMS

Front 44

a. Course of dealings between the parties
b. Standards within the industry or economic community
c. Parol Evidence (to aid in interpretation of existing terms or to add a missing term)
i. Note: the parol evidence to be admitted must be contemporaneous with or prior to the contract itself, unless the evidence to be admitted is evidence of a later modification of the contract)

Back 44

COMMON ISSUES IN CONTRACT

1. Ambiguity as to Terms

Front 45

a. UCC 2-207
b. A situation that arises when two ‘merchants’ are contracting
c. A ‘merchant’ in this sense of the word has the meaning of any person or entity that deals in the goods or services to be contracted for on a regular basis.

Back 45

COMMON ISSUES IN CONTRACT

1. The Battle of the Forms

Front 46

1. Contractual modifications require new consideration.

2. Past consideration is no consideration at all.

3. Gifts are not consideration

Back 46

CONSIDERATION PROBLEMS II

Front 47

“I promise to buy as many widgets as I want from you” – the buyer has not legally obligated herself to buy any number of widgets and, thus, has given nothing up.

Back 47

CONSIDERATION PROBLEMS
1. The Illusory Promise

Front 48

it is not consideration to promise to do a thing one is obligated to do, nor to promise to refrain from doing something one is not privileged to do.

Back 48

CONSIDERATION PROBLEMS
2. Pre-existing Duty

Front 49

if a contract would fail for lack of consideration, but one party has been materially, detrimentally hurt by a reasonable reliance on the promise of the other party such that equity demands redress . . . maybe a K anyway.

Back 49

CONSIDERATION PROBLEMS
3. Unjust Enrichment and Promissory Estoppel

Front 50

1. Bargained for Exchange
2. Generally, the law takes no interest in the objective value of what is bargained for; a “mere peppercorn” can suffice (so long as the consideration was not intended to be insignificant on purpose)
3. The parties must do something they otherwise would not have to do or refrain from doing something it is their legal right to do

Back 50

CONSIDERATION

Front 51

an agreement between parties to perform some act (or refrain from performing some act, the enforcement of which will be given the backing of legal authority.

Back 51

CONTRACTS

Front 52

1. Offer
2. Acceptance
3. Consideration

Back 52

The elements of a contract:

Front 53

made in response to an offer act as rejections of the original offer and as NEW OFFERS, to be accepted or not by the new offeree (the original offeror)


(this is an artifact of the original, and now archaic, common law “mirror image” rule)

Back 53

COUNTEROFFERS

Front 54

a. some intervening event has occurred, the nonoccurrence of which was a basic assumption of the contract
b. the occurrence has rendered performance for one party extremely difficult and/or expensive
c. that difficulty is beyond that which was anticipated by the parties

Back 54

5. Impracticability

Front 55

Krell gets a hotel room to watch a parade. The parade gets canceled. Krell can get his money back

Back 55

4. Frustration of the Purpose

Front 56

a. If performance of the contract is ACTUALLY, PHYSICALLY IMPOSSIBLE, the performance is excused.
b. Note: not merely expensive or unexpectedly difficult. Courts take this literally: if there is any possible way, with all the money in the world, to perform, then this doctrine will not apply.

Back 56

EXCUSES FOR NONPERFORMANCE

6. Impossibility

Front 57

1. Offers and Revocations are effective upon RECEIPT

2. Acceptances are effective upon DISPATCH

Back 57

THE MAILBOX RULE

Front 58

a. If both parties to a contract have made a material mistake about the same facts.

Back 58

EXCUSES FOR NONPERFORMANCE

2. Mutual Mistake

Front 59

a. a contract to perform an illegal activity is no contract at all and, thus, is unenforceable, excusing performance.

Back 59

3. Illegality

Front 60

manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his or her assent to that bargain is invited and will conclude it.”

1. Manifestation of present contractual intent.
2. Certainty and definiteness of terms.
3. Communication to the offeree.

Note: Intent to make an offer is required, but the test for whether or not such intent existed is to look to objective manifestations of such intent.

Back 60

OFFER

Front 61

1. A clear and definite promise
2. That was relied upon by the promisee
3. Which reliance was justified (and foreseeable)
4. And to fail to enforce the promise would lead to an unjust result

Back 61

PROMISSORY ESTOPPEL

Front 62

If the offeree rejects the offer, the offer is terminated (at least as to that offeree) unless the offer, by its nature, could only be accepted by performance anyway.

Back 62

REJECTION

Front 63

Acceptance must be made either within a reasonable time or within the timeframe provided by the offer itself, otherwise, no K is formed.

Back 63

LAPSE

Front 64

If either party to a potential contract either lacks the proper capacity (age, mental health, etc.) to contract, or dies prior to the contract being properly formed, then no K.

Back 64

DEATH or INCAPACITY

Front 65

1. Damages (Benefit of the Bargain)

2. Damages (Reliance)

3. Damages (Punitive)

4. Damages (Liquidated)

5. Damages (Nominal)

6. Restitution

7. Specific Performance

8. Legal Fees and Costs


9. Recission
10. Reformation

Back 65

REMEDIES

Front 66

1. Except in the case of an Option Contract (see below), the offeror has the power to revoke her offer so long as acceptance has not yet been made.

2. Revocation should be clear and unambiguous and must be communicated in a reasonable manner to the offeree(s)

3. Option Contract: a contract that, by the terms of its offer, is held open for acceptance for a specified period of time (or a reasonable period of time, if the offer failed to specify).

Back 66

REVOCATION

Front 67

Certain Contracts MUST be in a signed writing to be enforceable:

1. The sale of property interests in land (or leases to be longer than one year)
2. Contracts not to be fully performed within one year (note: if it is POSSIBLE for it to be completed, even if only by Herculean effort, then the S.O.F. does not apply)
3. The sale of goods for more than $500
4. (note: exceptions are made for contracts that have been partly or wholly performed)

Back 67

THE STATUTE OF FRAUDS

Front 68

1. The existence of a valid contract (or business relationship)
2. Knowledge of that contract (or business relationship) by the tortfeasor
3. Intentional efforts on the part of the tortfeasor to induce one of the parties to the K to breach.
4. Breach
5. Harm to the other, non-breaching party

Back 68

TORTIOUS INTERFERENCE w CONTRACT

Front 69

a. Can be either oral or written, generally
b. May be bilateral or unilateral

Back 69

1. Express Contract

Front 70

a. Based on the theory of unjust enrichment
b. Used only when there was no valid contract, but equity demands that the situation be treated as if there were

Back 70

2. Quasi-Contract

Front 71

a. Formal elements of contract not present, but actions of the parties indicate an intent to contract

Back 71

3. Implied in fact Contract

Front 72

a. if the plaintiff has acted in bad faith, equity might prevent their recovery for nonperformance of a contract

Back 72

7. Unclean Hands

Front 73

a. if the plaintiff has sat on their rights for an unreasonable amount of time, equity may not award damages for nonperformance

Back 73

8. Laches

Front 74

a. if the plaintiff engaged in fraud or misrepresentation, equity may not award damages . . .

Back 74

9. Fraud/Misrepresentation

Front 75

a. if the terms of the contract were unfair to one party to such a degree that it shocks the conscience of the court, then nonperformance may be excused.

Back 75

10. Unconscionabilty

Front 76

a. e.g., One party to a contract makes a grave error in the calculation of the purchase price.

b. If that error either was recognized as such or should have been recognized by a reasonable person in the industry, then this can be grounds upon which to either negate the contract or substitute a new, corrective, price term.

c. Note: this is not the same as a ‘business error,’ which variety of mistake does NOT excuse performance.

Back 76

1. Unilateral Mistake