Torts Flashcards
Intentional Tortfeasor Contribution
Contribution is NOT allowed in favor of those who committed intentional torts, even if each tortfeasor was equally culpable
Intentional Tortfeasor Liability
An intentional tortfeasor is liable for all the consequences of his wrongful action, intended, unintended, and unforeseeable, including the negligent action of one who was affected by the wrongful act.
Common Law Right of Publicity
The injury in a right-of-publicity case is based on the commercial exploitation of someone’s name or likeness
Can be violated when an advertisement, viewed as a whole, leaves little doubt that the ad is intended to depict a specific celebrity who has not consented to the use of his or her identity.
Is a π liable for punitive damages in an ordinary negligence case?
NO, not ordinarily available. However, they are available to victims of intentional torts, and victims of reckless conduct.
Actual Fear to Support Self Defense
Actual Fear is insufficient to support the privilege of self-defense. The defendant is privileged to use only that force which is objectively reasonable given the threat.
Landlord Duty
Any duty that the landlord may have is at most a duty to act reasonably.
Tort of Interference with Contract
Provides a cause of action against those who improperly interfere with the performance of a contract between the plaintiff and a third person.
Will time passage in itself give rise to a proximate cause limitation?
NO
Private Necessity
A landowner has no right to forcibly expel a trespasser or a trespasser’s property when the trespasser was driven by necessity to trespass on his land, and the landowner is liable for any damage to property of the trespasser that results from an expulsion.
Is mere negligence sufficient for a defamation action brought by a candidate for public office?
No, the plaintiff must established that the defendant acted with actual malice
Pure Comparative Negligence
In a system of pure comparative negligence with joint and several liability, a plaintiff can recover all the damages due, after discounting for the plaintiff’s negligence, from any one of the defendants, and that defendant must pursue the other defendants for contribution.
Defendant’s Liability for Converstion
Liable for the full value of the chattel at the time of the tort.
Implied Consent Defense
Consent may be implied by taking into account the plaintiff’s conduct, customary behavior in the situation, and other surrounding circumstances.
Defendant’s conduct must fall within the scope of implied consent
Rescuer as a foreseeable plaintiff
A rescuer is a foreseeable plaintiff as long as the rescue is not done recklessly.
“Danger invites rescue”
How can strict liability apply in defective design cases
For strict liability to prevail in defective design, the plaintiff must prevail in a risk-utility balancing test where the plaintiff must show that the risk and severity of his injuries were predictable
Private Citizen Arrest False Imprisonment Defense
For a private citizen to make an arrest without a warrant when a felony has occurred, two things must be true
I) a felony must have in fact been committed; and
II) the private citizen must have reasonable grounds to believe that the person arrest did commit the felony
Duty to warn strict liability action
If the defendant can show that it neither knew nor even in the exercise of reasonable care, should have known, of a particular danger at the time of sale, the vast majority of course hold that there is not duty to warn of an unknowable danger.
What is a Wrongful Birth Action
Parents may recover economic damages for the negligent failure to diagnose a hereditary or congenital condition and, had they known about it, they would not have proceeded with a pregnancy.
What is a wrongful birth action?
When a child brings an action, claiming it would have been better to have never been born, and she is therefore entitled to damages for life.
Pure Comparative Rule Jurisdiction
In a pure comparative rule jurisdiction, the plaintiff may recover his full amount of damages, less he portion attributed to his own negligence. The plaintiff is not barred from recovery by his own negligence, but he will have his award reduce, according to the court’s determination of the plaintiff’s percentage of responsibility for his own injuries due to his excessive speed in driving.
Negligence Per Se Rebuttals
Demonstrating that
I) compliance with the law would cause more harm than violating it
II) the defendant was incapacitated or otherwise could not comply with the law
Slander
Slander is spoken defamation in which the plaintiff must prove
I) defamatory language
II) of or concerning the plaintiff
III) published to a third person
IV) which caused damage to the plaintiff’s reputation
Public Disclosure of Private Facts
Plaintiff must show
1) That the defendant published private information about the plaintiff; AND
2) the information being publicized is non-newsworthy and would be highly offensive to a reasonable person
Not required information be false
Special relationship to Minor Children Duty
Parents have a number of affirmative duties, based on their special relationship to their minor children, including the duty to exercise reasonable care in the control of the parent’s minor children.
