Torts Flashcards
Defamation elements
(1) defamatory language on the part of the D;
(2) defamatory language was of or concerning the P;
(3) publication of the defamatory language by the D to a 3rd person; and
(4) damage to the reputation of he P
Public figure or matter of public concern:
(5) falsity
(6) fault by D
Where defamation is spoken (slander), P must prove special damages, unless verbal defamation falls within 4 exceptions (slander per se): (1) criminal activity, (2) occupational misconduct, (3) sexual misconduct, or (4) loathsome disease
When is assumption of the risk a defense to strict liability?
if (1) a P discovered the product defect & was aware of the danger; but (2) unreasonably proceeded to use the product
negligence per se (statute)
(1) there was a criminal or other regulatory statute/ordinance/law that imposed a penalty for its breach;
(2) the D violated that law;
(3) the harm caused by the violation was the type of harm that the law was intended to protect against;
(4) the P was in the class of individuals the law was intended to protect; &
(5) the violation of the law proximately caused the harm to the P
attractive nuisance doctrine
a landowner has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children, including trespassing children, caused by artificial conditions on his property
To establish a prima facie case for invasion of privacy based on publication by defendant of facts placing plaintiff in a false light, the following elements must be proved:
(i) publication of facts about plaintiff by defendant placing plaintiff in a false light in the public eye; and (ii) the “false light” must be something that would be highly offensive to a reasonable person under the circumstances.
The prima facie case for negligence requires the plaintiff to show:
(i) a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury;
(ii) breach of that duty by the defendant;
(iii) that the breach was the actual and proximate cause of the plaintiff’s injury; and
(iv) damage to the plaintiff’s person or property.
Rescuer rule
As a general rule, no duty is imposed on a person to come to the aid of another absent a special relationship between the parties. However, if the person gratuitously comes to the aid of the other, the actor must exercise due care in providing the assistance, and must not leave the person in a worse position than he found her.
Duty of special relationship with third person
Generally there is no duty to prevent a third person from injuring another. However, such a duty will be imposed when the defendant had a special relationship with the third person that gave the defendant the actual ability and authority to act, and the defendant knew or should have known that the third person was likely to injure the other person.
abnormally dangerous activity
An activity may be characterized as abnormally dangerous if it involves substantial risk of serious harm to person or property even when reasonable care is exercised.
Question of law that the court can decide on a motion for directed verdict.
2 requirements:
(i) activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and
(ii) activity is not a matter of common usage in the community.
A statute may establish the standard of care in a negligence case if:
(i) the plaintiff is in the class intended to be protected by the statute; and
(ii) the statute was designed to prevent the type of harm that the plaintiff suffered.
However, while violation of an applicable statute establishes a conclusive presumption of duty and breach of duty, compliance with the statute does not establish a conclusive presumption of due care.
Proximate cause
The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. Furthermore, if a particular harmful result was at all foreseeable from the defendant’s negligent conduct, the unusual manner in which the injury occurred or the unusual timing of cause and effect is irrelevant to the defendant’s liability.
A rescuer is a foreseeable plaintiff as long as the rescue is not reckless (“danger invites rescue”). Hence, the defendant will be liable if he negligently puts a third person in peril and the plaintiff is injured in attempting a rescue.
Vicarious liability - Independent Contractor
In general, a principal will not be vicariously liable for the tortious acts of its agent if the latter is an independent contractor.
EXCEPTION: when the contractor is engaged in inherently dangerous activities, such as excavating next to a public sidewalk. Such an activity does not have to be classified as abnormally dangerous for which strict liability applies; it need only be an activity in which there are special dangers to others inherent in or normal to the activity. –> vicariously liable for negligence of IC
