Fast Last Flashcards
Intentional Tort Defense Acronym
CDN
Negligence Defense Acronym
CApp
Strict Liability Defense Acronym
CATWLK
Privacy Defense Acronym
CAnt
Defamation Defense Acronym
CAT
Purpose intent:
“desires to bring about consequence.
Substantial knowledge intent:
“act knowing result will occur to a substantial degree of certainty”
Battery
Intent, P suffered harm or offense, resulted contact with the body
Assault
Intent, reasonable apprehension of battery, imminent
False imprisonment
Intent, act of restraint, results in confinement within bounded area, aware or harm
Trespass
Intent, physically invade, property of plaintiff
Trespass to chattels
Intent, interfere with someones personal property,
Conversion
Intent, interfere with someones personal property, results in damage
intent no matter
Owl crashing through window = It would likely be fashioned as conversion since you want the value or a new window.
IIED
Intent or recklessness, D conduct extreme or outrageous conduct, result in severe distress
Plaintiffs who are not members of the third party’s immediate family cannot recover for their emotional distress unless such distress results in bodily harm. Bodily harm is usually confined to an actual injury to the body or physical pain.
Plaintiffs who are not members of the third party’s immediate family cannot recover for their emotional distress unless such distress results in bodily harm. Bodily harm is usually confined to an actual injury to the body or physical pain. Trauma would likely be viewed as redundant to emotional distress
Breach
Hand/Cheapest Cost Avoider/Res Ipsa Loquitur/ Custom
Action would not have happened but for negligence, D’s Control, P’s actions did not lead to harm
Factual Causation
But For, Burden of Proof Switch, Substantial factor, “loss of chance”
Contributory Negligence
Contributory Negligence
Bars 1%
Last Clear Chance
Assumption of the Risk
Express, “ Ill take my chances’ consenting. It completely bars recovery just like contributory negligence
Implied - knowledge + voluntary
treated as complete bar in strict liability
need “knowing + voluntary” , evidence that P had KNOWLEDGE of risk, and it’s VOLUNTARILY encountered. In jurisdictions that have contributoyr negligence it’s a complete bar. In states that have comparative fault, it is not. It just gets factored into co,parative fault risk %.
Comparative Negligence
Pure Comparative Negligence
Direct %
Partial Comparative Negligence
If 49-50% then bars
Abnormally Dangerous Activity
Activity always poses a severe risk of harm, uncommon in the community
Strict Product Liabilty
commercial seller, product defect (manufacturer defect, warning defect, design defect[ 402a risk utility 402a consumer foreseeable danger, 2b manufacturer didn’thave a better design option]***[circumstantial evidence aka res ipsa test), in commercial chain, forseeable use/defect
courts have required suppliers to anticipate reasonably foreseeable uses
even if they are “misuses” of a product. H
If you are out of strict, you go under negligence
Appropriation
Taking likeness or name of other, for commercial use
Tabloids okay
Intrusion
Intruding on seclusion of other person, in a way that a reasonable person would find highly objectionable
False Light
Widespread dissemination of false facts about a person, that a reasonable person would find offensive
it is a true image or statement but misleading in its implication. It is false in how it portrays someone. That is the very issue that led many states to keep false light rather than merge it with defamation.
Public Disclosure of Private Facts
Widespread dissemination of private facts about a person that a reasonable person would find highly offensive
Defense “newsworthy” aka of legit public interest
revenge porn
Defamation:
A false statement, ABOUT P, published to a third party, results in harm
Slander vs LIBEL
Slander/libel per se = loathsome disease, concerning employment, chastity of women, crime (jury presumes special damages)
Public Concern:
Puclic officials, education/ religious.chaities
1. Prove Falsity 2. Public figures = prove malice, private figures = prove negligence
Public Nuisance:
Interference with the use or enjoyment of land, to a substantial or unreasonable degree, must be unique harm than community
The standard is measured based on what a reasonable person would find to be an annoyance, rather than what a particularly strong or a particularly sensitive person would feel.
Private Nuisance:
Interference with the use or enjoyment of land,to a substantial or unreasonable degree
The standard is measured based on what a reasonable person would find to be an annoyance, rather than what a particularly strong or a particularly sensitive person would feel.
Spite fences
Bars structures that interferes with neighbor’s access to light/air/view for spiteful/malicious reasons
Most states require that spite/malice be teh sole/predominant motivation for its construction
Primary defense for the fence is to show a constructive use of the structure
Aesthetic nuisances/objections - neither substantial nor unreasonable
Attractive Nuisance:
Owner created or maintained potentially dangerous condition on their land
Owner shoudl have known harm to children
Owner shoudl haeve known attractive to children
Vicarious Liability claim:
Employee vs independent contractor
Under “respondeat superior” an employee is liable for all torts committed by employee within scope of employment
Establish frolic vs detour
Defenses intentional torts general outside
Independent contractor not liable
Damages
Compensatory damages are awarded for actual, concrete losses suffered by plaintiffs, while punitive damages serve to punish acts of misconduct and deter their repetition.
A plaintiff may only recover for economic damages based on tort law if it also shows additional harm such as physical injuries or property damage. However, the plaintiff may recover for purely economic damages if it had a contractual relationship with the defendant.
punitive damages. may benecessary because compensatory damages may fail to fully compensate the plaintiff when harm has been done.
Second, punitive damages are necessary to fully ensure future tortious conduct is deterred
A manufacturer has a duty to provide warnings or instructions concerning a product if
A manufacturer has a duty to provide warnings or instructions concerning a product if (1) the product presents a risk of injury, (2) the manufacturer knows of the risk, (3) the risk is present when the product is used in its intended manner, or in any other reasonably foreseeable manner, and (4) the risk is not obvious to a reasonable user. The existence of such a duty is normally a question for the trier of fact.
Socio-Biological legal theory
socio-biological writings as an effort to incorporate biological concepts and values (like DNA replication) into torts like we do economics and other conceptual values. Professor like John Beckstrom argue that such socio-biological studies can explain conduct and can be used to fashion solutions through legal doctrine.
Analyzing Duty
Under the majority (Cardozo)
view, the plaintiff must be within the foreseeable zone of danger from the defendant’s activity to be
owed a duty of care. Under the minority (Andrews) view, the duty of care is owed to anyone.
Analyzing Breach
“When the defendant’s conduct falls below the level required by the applicable standard of care,
he has breached his duty. If a statutory standard of care applies, most courts consider as “negligence per se,”. A
minority of courts hold that the violation is only a rebuttable presumption
Analyze Factual Causation
“The defendant’s conduct is the actual cause of the plaintiff’s injury if the injury would not have
occurred but for the defendant’s conduct. “
Analyze Damages
Damages
A plaintiff is entitled to be compensated from the tortfeasor for all her damages, even if the extent
or severity of the harm is unforeseeable (i.e., the tortfeasor takes his victim as he finds her).
“Patron’s concussion from fainting constitutes recoverable damages”
Design defect: 402a’s vs 2b, circumstantial evidence
402a liability - 2 TESTS:
1- consumer expectation: was something more dangerous than reasonable consumer expected?
- Risk Utility Test: consider risks and whether they outweigh the benefits
- 2b. alternative design
- -jury had to look through eyes of consumer, if it’s more dangerous than they think - circumstantial evidence = res ipsa (a) was of a kind that ordinarily occurs as a result of product defect;
Stand your ground vs Castle Doctrine
Stand your Ground
No duty to retreat (Ex. George Zimmerman/Trayvon Martin)
23 states have it
Generally apply to the home but can be extended to any place a person has a lawful right to be
Person justified in using/threatening to use deadly force if they reasonably believe that using/threatening to use such force is necessary to prevent imminent eath or great bodily harm to themself or another person OR to prevent imminent commission of forcible felony
Stand your ground vs Castle Doctrine
Stand yoru Ground
No duty to retreat from a threat before resorting to deadly force
Generally applies regardless of location
Castle doctrine
Designed for the protection of a domicile or real property
No duty to retreat and statutorily defines use of force as reasonable
Note some states liek missouri adn ohio have extended such protectiosn to personal vehicles or businesses
Make my day laws (castle doctrine)
Majority of states have castle doctrine or “make my day” laws
Protectiosn can extend to teh curtilage (are asurrounding the house)
Some states have “make my day better” laws or extend protections to cars and businesses
When involving property
You must first request the other to leave OR reasoanably believe that such a request to be useless - only fater requesting/making that reasonable assumption can you resort to force to expel them
Rule of 7’s
RUle of Sevens
Age 0-7: children are presumed incapable of negligence
Age 7-14: a rebuttable presumption of incapacity
Age 14 and up: minor presumed capable of forming the requisite intent
Negligence per se exceptions
Party could not comply with a statute because of an incapacity
Ex. you have to do something upon seeing a particular hazard but you are visually impaired adn wouldn’t ahve been able to see it
Eventual defendant did nto know and shold not have known, of the occasion for compliance
Ex. driver who didn’t know a taillight was out while driving
Party is unable, after reasonable diligence, to comply with the statute
Ex. can’t clear property front sidewalk of snow within 24 hours of snow stopping as per the rule bc theres like a 3 day blizzard where snow starts/stops
Cases where sudden emergency prevents statutory compliance
swerve/run a light/make illegal turn to avoid hitting a person
If compliance with the statute would be more dangerous than violation
If see “no duty to rescue” or any IIED =
Bender’s Feminist critique
Leslie Bender = tort law should begin with a premise of responsbiliyt rather than rights feminisr argues why we have “no duty” in rescue cases. Masculine voice discusses righgts autonomy adn abstraction that has led to protect efficiency and profits whereas a feminie voice can design a tort system that encourages behavior that is caring tot oerhs safety adn responsive to others needs aor hurts that attends o human contexts and consequences”
8**torts IS based on huge individuality which leslie bender diagrees with.
Said male-oriented system was based on seapraations rather than connections - it was individualistic, autonomous and self-interest
Wanted recognition in the system that we are all interdependent/connected
There is currently no responsible care/concern for another’s safety/welfare/health
NIED
- Witness injury to a closely related person
- Suffer mental anguish manifested as physical injury
- Be within the zone of danger where he or she is subject to an unreasonable risk of bodily harm from the defendant’s actions
Warning defects
Warning defects = when product lacks reasonable instructions or warnings of *foreseeable harm posed by product an the lack of renders the product not reasonably safe
Common law duty to warn necessitates a warning comprehensible to average user adn conveying a fair indication fo nature/extent of danger to mind of areaonsably prudent person
Defendant is not liable under an implied warranty of merchantibily for failure to warn/provide instructions about risks that were NOT reasonably foreseeable at the time of sale or could nto have been discovered by way fo reasonable testing prior to marketing the product
Defendant is subject to standard of knowledge of an expert in the appropriate filed, but remains subject to a continuing duty to warn (at least purchasers) of risks discovered following sale of product at issue
foreseeable can be missue too
Coase Theorum
In a world without transaction costs, laws will never effect efficiency.. Because aprtie will always bargain their way to optimal behavior.
Legal standards will only impact distribution of wealth!
Ex: railroad sparks are dangerous– without laws farmers would take precaution or railroad will.
