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BAR > other torts > Flashcards

other torts Flashcards

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1
Q

Negligence per se

A
  1. Violation of ordinance/statute with criminal penalty/fines
  2. Injured party is of protected class
  3. Injury is of the type statute was trying to prevent
    - Never pick a negligence answer choice in NPS question
    - must prove causation and damages for negligence
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2
Q

Res Ipsa Loquitur

A
  • Creates an INFERENCE of negligence (duty and breach), if:
    1. Accident would not normally occur unless negligence
    2. D had exclusive control
  • Question about a motion: if jury can infer or not
  • if P establishes res ipsa, D can’t get directed verdict
  • must prove causation and damages for negligence
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3
Q

Attractive nuisance

A
  • Artificial condition causing children to trespass
    1. Owner knows or should know of child trespassers
    2. Unreasonable risk of harm
    3. Children cannot appreciate the risk
    4. Cost of remedy/repair is less than the danger
    5. Owner fails to make safe
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4
Q

Strict liability

A
  1. Possession of wild animals
    - Non-domesticated animals
    - Injury that would normally occur
    - Domestic animals with dangerous propensities
    - Trespassing animals - SL if damage is reasonably foreseeable (not household pets)
  2. Abnormally dangerous activities
    - Excavation, dynamite, toxic chemicals
    Defenses to strict liability
    assumption of risk: Knew and appreciated the risk
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5
Q

Product liability

A
  • A product breaks or doesn’t work properly
  • 3 causes of action
    • Negligence, breach of warranty, strict products liability
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6
Q

Product liability - negligence

A

Negligence in the chain caused the product to break or not work
- claim against retailer or wholesaler will usually fail because can’t prove breach

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7
Q

Product liability - breach of warranty

A
  • Promise about product performance
  • Mostly express warranties
  • Merchantability: product acted as it should
  • Fitness for a particular purpose: product only works for particular purpose
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8
Q

Product liability - strict liability

A
  1. Defective product
  2. Sold by commercial merchant
  3. defect existed when product left D’s control
  4. reasonable foreseeable use by P
  5. damages
    - Inadequate/failure to warn: a type of defective product under strict product liability
    - Strict liability in tort = product strict liability
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9
Q

Defenses to strict products liability

A
  1. Assumption of the risk
  2. Misuse
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10
Q

Private nuisance

A
  • Unreasonable interference with use/enjoyment
  • Objective standard
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11
Q

Public nuisance

A
  • Unreasonable interference to public
  • Brought by government official
  • Private Ps must prove SPECIAL damages (unique harm)
  • Ex: contaminated water, electric lines that are emanating nuclear power
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12
Q

Defamation

A
  1. False statement
  2. About P
  3. Hurts reputation
  4. Publication: heard and UNDERSTOOD by third person
    Damages
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13
Q

Defamation - libel

A
  • Written or printed
    No special/pecuniary damages
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14
Q

Defamation - slander

A
  • Spoken
    Must prove special damages
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15
Q

Slander per se

A
  • Damages presumed
    1. Profession/business
    2. Serious sexual misconduct
    3. Felony / serious crime
    Loathsome disease / STD
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16
Q

Defamation - private/public individual

A
  • private: Standard of proof: negligence
  • public figure
    • Standard of proof: actual malice
    • Knowledge or reckless disregard of the truth
17
Q

Defenses to defamation

A
  1. Truth is an absolute defense
  2. Privileges
    - Absolute privilege: statements made in the course of official proceedings are protected (court appearances or government affairs)
    - Qualified privilege:
    • Statement appears necessary to protect D/public’s interest
    • Honest and reasonable belief of truth
      Ex: request to make a statement on your behalf; letter of rec/character reference
18
Q

Invasion of privacy

A
  • False light: Portray someone in false light
  • Appropriation: unauthorized use of name or image for profit
  • Public disclosure of a private matter: confidential. must not newsworthy
    Intrusion upon seclusion: physical invasion of a private space
19
Q

Misrepresentation = fraud
- Intentional misrepresentation:

A
  • Intentional misrepresentation:
    1. Misrepresentation of material fact
    2. Scienter - knew or should have known
    3. Intent to induce reliance
    4. Reliance
    Damages
20
Q
  • Negligent misrepresentation
A
  1. Negligence
  2. Special relationship
  3. Detrimental reliance
    Damages
21
Q

Tortious interference with contractual relationship

A
  1. Contract exists
  2. Defendant has knowledge
  3. Intentional interference
    Damages/breach of K
22
Q

Malicious prosecution

A
  1. Criminal proceeding
  2. No probable cause
  3. Improper purpose
    Dismissed in favor of accused

BAR (19 decks)

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