Tort Class Special Action

Question 1

Nuisances (4 elements)

Answer 1

only applies to the use of real estates (but not related to trespass - real estate law)

1. Use Of Land in an offensive way as to
2. Unreasonably and Substantially interfere with
3. Another person’s use or enjoyment of their land
4. Proximate cause of its injury (not every jurisdiction requires BUT AR does)

Question 2

2 types of Nuisances (and its difference)

Answer 2

1. Private Nuisance - a plaintiff seeks injunction
2. Public Nuisance - a “class action” suit or Government brings the suit on behalf of the people using “police powers”; interferes with legal rights common to the public
3. The difference is the amount of people effected

Question 3

how is “unreasonable and substantially” determined

Answer 3

offensiveness is determined by applying the “reasonable person standard” - would a person with ordinary sensitivities find the tortfeasor’s land use unreasonably offensive (normally a community standard)

Question 4

Coming to the Nuisance DEFENSE

Answer 4

involves the plaintiff who owns or uses land at a location in which the alleged nuisance activity was already occurring (if the plaintiff came to the nuisance, then they cannot recover - similar to assumption of risk)
*** cannot be use as a defense for Public Nuisence

Question 5

Police Powers

Answer 5

a source of government power which gives them authority to file lawsuits or enact legislation to protect the public

Question 6

5 common types of Public nuisance

Answer 6

Defined by statues or ordinance (can also include many of the same activities as private nuisance)

1. gambling
2. prostitution
3. distribution of sexually explicit material
4. sales of alcohol
5. toxic wast managments

Question 7

Mixed Nuisence

Answer 7

can constitute as both private and public; the greater the number of persons adversely affected, the more likely it will be considered Mixed

Question 8

Remedies (relief) for Nuisances

Answer 8

equitable remedies (NOT remedy at law) - do not involve money; it is where the courts orders the defendant to do (or not do) something

Question 9

Abatement

Answer 9

when the defendat is ordered to cease, or abate, the nuisance activity (often permanent)

Question 10

Temporary Injunctions

Answer 10

also known as Temporary Restraining Orders (TROs); forbids the defendant from conduction an alleged nuisance activity until a court hearing can be held; plaintiff often must post bonds to compensate the defendant if the court or jury later decides that the defendant did not engage in a nuisance

Question 11

Permanent Injunctions

Answer 11

are abatement orders instructing the defendant to PERMANENTLY stop doing the nuisance activity

Question 12

Holding a someone in contempt

Answer 12

if a defendant refuses to stop a nuisance activity upon an abatement, that person can be held in contempt (an act of disrespect towards a court) which can result in monetary fines or imprisonment

Question 13

Wrongful Death Statues

Answer 13

a tort resulting in someone dying, in which the family OR the estate sues directly and Damages awarded goes straight to the family

Question 14

Survival Statues

Answer 14

Differs from a Wrongful Death! - family can sue on behalf of themselves (the claim survived) INHERITING the claim, BUT the estate does the suing; Damages awarded to the estate must go through PROBATE and then distributed according to the “dead hand”

Question 15

Damages for Wrongful Death

Answer 15

statues define the types of damages that plaintiffs may recover

1. lost lifetime earnings potential
2. loss of consortium

Question 16

lost of lifetime earnings potential

Answer 16

damages for the lost income that the victim would likely have earned had not been killed (bases upon income at the time of death) - future time period is based on the victim’s life expectancy (calculated from insurance actuarial tables and adjusted for the victim’s projected living expenses)

Question 17

loss of consortium

Answer 17

damages for the lost love and companionship of the decedent (both economic and intangible benefits) - cant put an money amount on

Question 18

Defenses to Wrongful Death

Answer 18

depends on the tort that resulted in the death: if negligence, intentional tort, etc, Any defense applicable for that specific tort

Question 19

Wrongful birth

Answer 19

an action that exist against a doctor with a child born with defects, the parents are unaware because the doctor did not inform the parents - PARENTS SUE

Question 20

Wrongful life

Answer 20

a CHILD born with serious defect sues the doctor basically saying “I should have never been born” because the doctor failed to inform the parents of the defect