MBETorts Flashcards
IIED: Damages
P must prove distress beyond what rsnble person could endure; if P hypersensitive, liability only if D knew
False Imprisonment as Tort
- D intentionally confines another
- w/in fixed boundaries w/ no rsnbl means of escape
- V aware or actually harmed
Privilege of Arrest as Defense to Intentional Tort
- Private citizen use force if felony in fact committed + rsnbl grounds to suspect
- PO if rsnbly believe felony committed + rsnbly believes D perpetrated
- PO misdemeanor if being committed or about to be in presence; private cit only if also breach of peace
Trespass to Chattel
- Intentional interference w/ right of possession that causes actual harm or deprivation of use for substantial time
- Only need to show D had intent to do interfering act, not intent to dispossess
- Remedy = diminution in value or cost of repair
Abatement of Nuisance
Person may enter another’s land to abate private nuisance w/ rsnble force after giving notice (liable for any damage beyond necessary to abate)
If public, must go to AG unless unique harm
Negligence Actions: Circs in which D Has Affirmative Duty to Act
- D voluntarily aids or rescues
- D places another in peril has duty to prevent further harm
- D w/ actual ability + authority to control another (parent, employer) must exercise rsble control
- Unique relationship, such as common carrier, had duty to protect, aid, or assist
Exception to Physician’s Duty to Obtain Informed Consent
- risk commonly known
- patient unconscious/emergency
- patient waives/refuses
- incompetent (rsnble attempt to get from guardian)
- detrimental to patient
Restatement Factors to Determine Ultra-hazardous Activity
(i) high degree of risk of harm
(ii) extent of likely harm
(iii) inability to eliminate risk by exercise of due care
(iv) rarity of activity
(v) inappropriateness activity to place carried on
(vi) extent to which value to community outweighed by dangerousness
Landowner Tort Liability to Off-Premise Victims (ie: passerby and neighbors)
No liability for natural conditions, except trees in urban areas
Must prevent unreasonable harm from artificial conditions
Actual Causation in Tort Cases When But For Won’t Work
- Multiple + merged causes, breach of each “substantial factor”
- Alternative causation: burden shifts to individual Ds (only if all Ds were tortious + all joined)
- Concert of action
Types of Damages Available in Negligence Actions Generally
- No nominal damages, attys fees, or interest
- If physical injury, can add emotional distress
- Economic loss only if related PI or prop damage
- Punitive only if D acted recklessly or w/ malice
Torts Committed by Independent K’ers: Non-delegable duties
- inherently dangerous activities
- activities that affect public
- Storekeeper or operator of other premises open to public
Contribution in Tort Claims
Generally not available for intentional torts
Assumption of Risk - Exculpatory Clauses in Ks not enforced where…
- disclaiming liability for recklessness or gross negligence
- gross disparity of bargaining power
- party offers services of great importance to public that are practical necessity for at least some members (medical)
- Against public policy (common carriers, innkeepers + employers)
Strict Products Liability: Elements
- Product defective (manufacture, design, of failure to warn)
- defect existed at time left D’s control
- P used product in intended/rsnbly foreseeable way
Strict Products Liability: Design Defect (Two Tests)
- Consumer Expectation Test: product includes condition not contemplated by ordinary customer that is unreasonably dangerous
- Risk-utility test: risk posed by product outweigh benefits + economically feasible, rsnble alternative design was available
Strict Products Liability: Failure to Warn
Foreseeable risks of harm, not obvious to ordinary user of product, that could have been reduced/avoided by providing reasonable instructions or warning
Learned Intermediary Rule: manufacturer fulfills duty to warn by informing prescribing physician (dn apply where likely to be dispensed w/out personal intervention of dr)
Implied Warranty of Merchantability
Product generally acceptable and reasonably fit for ordinary purposes for which being sold
Seller must be merchant w/r/t kind of goods at issue
Implied Warranty of Fitness for Particular Purpose
Only if seller knows the particular purpose for which product being purchased and buyer relies on seller’s skill or judgment in supplying product
Libel
Libel: written/printed/ recorded in permanent form (TV/radio + email)
Need only prove general damages presumed to flow from damage to reputation
Slander
If not per se, must show special damages: 3d party heard and acted adversely to P; typically econ loss (loss of biz), but could be social
If per se/special damages, P also gets general damages
Defense to Defamation: Qualified Privileges
- interest of D (ie: defending own reputation)
- interest of recipient or other 3d p
- affecting impt public interest
- priv lost if abused (ie: D acted w/ malice); D burden to show priv, burden shifts to P to show abused
Public Disclosure of Private Facts
- Communication to public at large of matter concerning private life of another that would be
- highly offensive to rsnble person + not of legitimate concern to public
Gov’t Official Given Unfettered Discretion to Restrict Speech
Void on face; speaker need not apply for permit/be punished prior to challenging