Torts 1 Flashcards
Defamation Elements (General)
- defamatory statement that specifically ID’s the plaintiff
- publish statement to third parties
- falsity
- Fault
- Damages
Defamation - Defamatory Statement / Plaintiff Req
- must adversely affect reputation - must be a factual claim reflecting adversely on character; pure opinion or name calling is not defamatory
- P must be alive not dead, any identifying information will suffice; if small group, everyone has a claim, large group no one has a claim
Defamation - Publish
publish to any third party (de minimus 1 person); publishers are equally liable as the speakers
no intent required, negligence is sufficient
Defamation - Falsity
statement must be false to be defamatory. a true but offensive statement is not defamatory
Defamation - Fault
degree of D awareness to promulgate falsehood
if Private P – negligent considering timing and degree of harm
if Public P – knowledge of falsity or reckless disregard for the truth (malice)
limited public public – only speak in regard to why public figure
Defamation - Damages
Libel - permanent/written/recorded (Damages presumed)
Slander per se: so clearly defamatory that an ordinary person would understand the injury (damages presumed)
1. business/profession
2. serious crime
3. serious sexual misconduct (debasing act would exclude from society or imputation on chastity/adultery)
4. loathsome disease (Lepersy or venereal contagious disease)
All Other Slander: need evidence of economic harm
Defenses to Defamation
Consent
Privileges:
1. Absolute: communication between spouses or officers from 3 branches of government - anything you put in court papers or argue is exempt
2. Qualified: if public interest in encouraging candor (Case by case basis)
Invasion of Privacy Torts
Appropriation
Intrusion upon seclusion
false light
publication of private fact (disclosure)
Appropriation
D uses P name or image for commercial purposes
emotional damages bc right of publicity
Intrusion Upon Seclusion
invasion on P’s seclusion highly offensive to a reasonable person where otherwise have a reasonable expectation of privacy
False Light
widespread dissemination of a material falsehood about P highly offensive to a reasonable person (reckless disregard for the truth)
Publication of Private Fact (Disclosure)
D publicly discloses private information highly offensive to reasonable person
widespread dissemination of confidential info not of legitimate concern to the public and highly offensive
Nuisance
D substantial interference w P use and enjoyment of the land
acting with awareness, not necessarily intent
Product Liability Elements
- merchant
- product is defective
- product not substantially altered since leaving D’s control
- P foreseeable use of the product at time of injury
manufacturing defect
departs from the intended design/different from others on assembly line
design defect
risk with product outweigh the utility of the design. show:
1. alternative design would’ve been safer
2. alternative is practical and won’t defeat the point of the product
3. economically feasible alterantive
information defect - adequate warning if:
hidden risk = defective unless adequate warning. adequate if:
1. prominent attention to user
2. comprehensible
3. provide information re mitigating risk
4. not altered since leaving D’s hands
5. foreseeable use of the product (not misuse)
Product Liability Affirmative Defenses
- traditional: knowingly encounter bars recovery
- comparative responsibility: assign percentages to allocate damages based on fault
Strict Liability Categories
Animals
Abnormally Dangerous Activities
Product Liability
Animal Liability
Wild: Strict Liability if possession
Domestic: not Strict liability except if you know your animal has a dangerous propensity not associated with the species – One bite rue
** NEVER strict liability to trespasser on animal owner land **
SL for trespassing by one of animals if any foreseeable damage results
Abnormally Dangerous Activities
- Not reasonable safe even if ordinary care
- uncommon in area where conducted
(explosives, dangerous chemical bio) material and/or nuclear energy/high dose radiation
Res Ipsa Loquitur
P must show:
1. accident is associated with negligence normally (probability)
2. normally due to negligence of someone in D position
Note: deny the motion if: (1) P establishes re ipsa or (2) presented some other evidence of breach
Battery
- Intent
- Contact harmful (bleeding) or offensive (not allowed by reasonable person)
- with Plaintiff’s Person (anything they’re touching or holding at the time)
Note: doesn’t have to be instantaneous
Assault
- Intent
- Reasonable apprehension (awareness it’s happening)
- of immediate battery (timing)
Note: words alone lack - words can negate conduct and destroy immediacy
False Imprisonment
- Intent
- Act of Restraint (physical bound to prevent from leaving - credible; failure to act suffices if legal duty)
- P confined in bound area (aware + no way out) - NOT bounded if p knows of reasonable means of escape that isn’t dangerous disgusting or humiliating
Intentional Infliction of Emotional Distress (IIED)
- Intent
- Extreme or Outrageous Conduct (exceeds all bounds of decency tolerated in civilized society)
a. repetitive bad conduct
b. D common carrier/in-keeper
c. P fragile class (children, elderly,
pregnant) - severe emotional distress (don’t have to prove by specific evidence)
Note: exploitation of previously known P peculiar sensitivity is per se outrageous
Trespass
- Intent to get to the location and put your foot on it
- Physical Invasion (1. by a person or unaware crossing bounds 2. throwing tangible thing onto land)
- Of Land (includes air above and soil below)
Trespass to Chattels
interference with personal property warranting D damages
** degree of interefernce: small = chattels; big = conversion **
Conversion
intentional interference with P personal property so seriously that D should pay full value
** degree of interference: small = chattels; big = conversion **
Defenses to Intentional Torts (General)
Consent
Protective Privilege
Necessity
Consent
P legal capacity (can be limited to consent about some things but not others)
Express: permits behavior except for fraud and duress (void)
Implied: (1) custom or usage (i.e., team sports) (2) Body Language (handshake) (3) exceeding scope of consent
Protective Privilege
Self defense, Defense of Others, defense of properties (respond to perceived threat coming from D)
TIMING (no preemption and no revenger)
ACCURACY (shoplifting example; baggage claim example)
PROPORTIONAL (no duty to retreat, no deadly force for property, some states presume home invasion = dangerous harm)
Necessity
NOT FOR BATTERY ASSAULT OR FALSE IMPRISONMENT
Public: D acts in emergency to protect public (absolute defense)
Private: D own interest protection (limited defense) Consider:
a. compensatory damages
b. No nominal or punitive damages if no actual damage done
c. can remain as long as emergency continues
Negligence Elements
Duty: legal obligation to take risk reduction precautions for benefit of others to foreseeable victims in the zone of danger
Breach: concrete affirmative action or omission
Cause: factual link between the breach in the injury - would’ve have occurred but for D’s negligence AND the injured party was foreseeable
Damages:
Children Standard of Care
under 5 - no standard of care
5-18 hypothetical child age/experience/intelligence under similar circumstances
if child engaged in adult activity like motorized vehicle, then default reasonable person standard
Professional Standard of Care
same care as average member of the professional providing similar professional services (Average, not reasonable)
Property Possessor’s Standard of Care
- Unknown trespasser: no duty
- known/anticipated trespasser: (known death trap rule) duty if the hazard is (a) artificial (b) highly dangerous (c) concealed to trespasser (d) known by possessor
- Licensee (comes on to land with permission but no financial benefit to possessor) - Duty if (a) concealed from licensee and (b) known by D
- Invitee (enters with permission for financial benefit / open to the public) - Duty if: (a) concealed (b) D knew/could’ve discovered with reasonable inspection at a reasonable time
Satisfy Property Possessor’s Liability
(1) eliminate Hazard (Repair, replace, remove) (2) warn about the hazard (sufficiently complete)
Negligence Per Se
Can borrow criminal statute to show duty and breach if:
(1) P within class of person’s statute is trying to protect and
(2) harm suffered is within the type designed to protect against
EXCEPT:
(1) if compliance is more dangerous than violation OR
(2) if compliance is impossible under circumstances (spontaneous heart attack)
Duties to Act Affirmatively
No Duty unless
1. if you choose to act, be reasonable
2. no duty to rescue UNLESS (a) pre-existing relationship (b) D caused the peril
Negligent Infliction of Emotional Distress
Near Miss: when defendant negligently creates a foreseeable risk of physical injury to the plaintiff (1) negligent D (2) D put P in zone of danger (3) P suffered physical symptoms from the fear/distress
Bystander: D severe injury/death to third party causing P emotional distress (grief). (1) negligence (2) close family member (3) P on scene at injury
Business Relationship: highly foreseeable that careless performance by D will result in distress (patient/medical lab or funeral parlor/customer
Attractive Nuisance
- owner aware dangerous condition on land
- owner knows/should know that children might trespass
- condition likely to cause injury
- expense of remedying situation slight compared to magnitude of risk
Standard of Care Common Carriers and Inkeepers
very high standard of care so liable for slight negligence
automobile driver to guest
ordinary duty of care
minoritity states - liable to nonpaying passengers only for reckless tortious conduct
Assumption of Risk
P knows of the risk AND voluntarily proceeded in the fask of the risk
Implied Assumption of Risk
where risk is one that an average person would clearly appreciated.
NO assumption of the risk if (1) no available alternative OR (2) in situations involving fraud/emergency
NO common carrier limitation by disclaimer and members of class protected by statute will not be deemed to have assumpted the risk
