torts Flashcards
Land Possessor Duties of Care
- Modern Rule—must exercise reasonable care under the circumstances to all land entrants, except trespassers
- Trespasser—on the land without consent or permission, duty to refrain from willful, wanton, reckless, or intentional misconduct
- Licensee—enters with express or implied permission for a specific purpose, duty to warn of concealed dangers that are known or should be obvious and use reasonable care in conducting activities
- Invitee—invited as member of the public or a business visitor, duty to inspect and discover unreasonably dangerous conditions and protect the invitee from them
Attractive Nuisance Doctrine (duties)
Liable to trespassing child if:
* An artificial condition exists in a place where the owner knows or should know thatchildren are likely to trespass;
* The condition imposes and unreasonable risk of serious bodily injury;
* The children cannot appreciate the danger due to their youth;
* The burden of eliminating the danger is slight compared with the risk of harm; and
* The land possessor failed to exercise reasonable care to protect children
Landlord Duty to Tenants
Protect from foreseeable attacks by third parties
Duty of general worker in an industry
Evidence of an industry or community custom is admissible as evidence of the relevant
standard of care
Evidence of custom is admissible BUT not conclusive
Duty of Professionals/Doctors
-Professionals, duty to perform at the same level as another practitioner in the same community
-Doctors, duty to perform at the same level as another practitioner in the same community
-Admissible AND Dispositive
Breach of Duty
Burden to Prevent Harm < Likelihood of Harm x Magnitude of Harm
Res Ipsa Loquitur
a) The type of accident would not normally occur absent negligence;
b) The injury was caused by an agent or instrumentality within the exclusive control of
the defendant; and
c) The injury was not due to the plaintiff’s own actions.
* no direct evidence of negligence, may be used to get to jury
Negligence per se
Arises when there is a statute that imposes a specific duty
Plaintiff must be within the class of persons the statute is meant to protect
Plaintiff must suffer the type of harm the statute was meant to protect against
Defendant’s violation of the statute must be the proximate cause the plaintiff’s harm
Negligent Infliction of Emotional Distress (NIED)
- Plaintiff must have been within the zone of danger of the threatened physical impact
- Must have some physical manifestation of the emotional distress
-BYSTANDER outside ZOD may recover IF:
Is closely related to a person harmed by the defendant’s negligence;
Was present at the scene of the injury; and
Personally observed the injury.
Assumption of the Risk
Plaintiff’s recovery may be barred or reduced if she voluntarily and knowingly assumed the risk of the behavior
Abnormally Dangerous Activity (Strict Liability)
-high risk of harm
-that is not commonly found in the community
-which has a risk that cannot be eliminated with due care
* must stem from scope of dangerousness
Wild Animals (Strict Liability)
- Applies to animals and their wild traits
- Applies to domestic animals IF owner knows/has reason to know of a dangerous Propensity
- LIABLE if not kept caged
- NOT liable to trespassers
Strict Products Liability
phuuuuuuuh ok
* Defendant IN THE BUSINESS of selling a commercial product may be strictly liable for a DEFECTIVE product CAUSING FORESEEABLE INJURIES to a plaintiff
* Defendant is anywhere north of river of production chain
* Product is defective in EITHER Manufacturing, Design, or Failure to Warn
-Man: product does not conform to D’s own specifications
-Des: design is dangerous beyond expectation of an ordinary consumer, P must prove that a REASONABLE ALTERNATIVE design that is ECONOMICALLY FEASIBLE was available, and FAILURE to use that design rendered the product dangerous
-FTW: Exists if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which could have been reduced or avoided by providing reasonable instructions or warning
* Actual Cause: The product must have been defective when it left defendant’s control and the defect was
the actual cause of the harm
* Proximate Cause
The defect causing the plaintiff’s injuries occurred when the product was being used in an intended or reasonably foreseeable way.
A defendant may still be liable if the plaintiff misuses the product, as long as the misuse is foreseeable
* Damages: P must suffer personal injury/property damage
Strict Product Liability defenses
a. Contributory Fault
The plaintiff’s contributory fault is generally not a defense to a strict products liability action.
If the plaintiff knows of the defect and unreasonably uses the product anyway,
contributory fault may be a defense to bar or reduce recovery.
b. Assumption of the Risk
Recovery may be barred or reduced if plaintiff voluntarily and knowingly assumed the risk of
using the
c. Negligent Products Liability
analysis is the same as a typical negligence analysis in relation to the product.
Warranties
- Express Warranty
- A promise or guarantee made by the defendant about the product
- If the product does not meet this warranty, the defendant has breached this warranty and plaintiff can recover damages.
- Implied Warranty of Merchantability
- A product that is sold is impliedly warranted to be reasonably useful and safe for average use.
- Implied Warranty of Fitness for Particular Purpose
- If a seller knows or has reason to know of a particular purpose for which some item is being purchased by the buyer, the seller is guaranteeing that the item is fit for that particular purpose.
Defamation
- A plaintiff may bring an action for defamation if the defendant:
-Makes defamatory language (diminishes the respect, esteem, or good will towards plaintiff)
-That is of or concerning the plaintiff;
-That is published to a third party who understands its defamatory nature; and
-That damages the plaintiff’s reputation.
>Damages are PRESUMED for Libel, NOT for Slander
>Slander per se: DAMAGES are presumed when statements involve professional reputation, disease, crimes of moral turpitude, or unchaste behavior
Constitutional Defamation Requirements
The Constitutional defamation requirements apply if:
1) The plaintiff is a public official (e.g., politician) or public figure (e.g., celebrity); or
2) The plaintiff is a private individual, but the statement involves a matter of public
concern.
a. First Constitutional Requirement: Falsity
Plaintiff must prove that the statement is false; and
If plaintiff is a public official or figure, must also prove that the defendant acted with
actual malice
* Malice—defendant either had knowledge that the statement was false or acted
with reckless disregard as to the truth or falsity of the statement
If the plaintiff is a private individual and the defendant’s statement involves a matter of
public concern, the plaintiff is required to prove that the defendant acted with
negligence or actual malice.
b. Second Constitutional Requirement: Limits on Damages
A public official or figure or a private individual and matter of public concern—plaintiff
must prove actual damages
A private individual who can show actual malice may also recover punitive damages.
Defamation Defenses
- Truth
Truth is an absolute defense to defamation. - Consent
Consent is an absolute defense as long as defendant did not exceed the scope of consent. - Absolute Privilege
- Used for remarks during judicial or legislative proceedings, between spouses, or in required publications
- Cannot be lost
- Qualified Privilege
- Affects an important public interest or is in the interest of defendant or a third party
- Can be lost if exceeds the scope of the privilege or the speaker acted with malice
Misappropriation
- The unauthorized use of plaintiff’s name, likeness, or identity for defendant’s advantage
(commercial or otherwise) - Plaintiff must prove lack of consent and injury.
Intrusion Upon Seclusion
- Defendant’s acts of intrusion into plaintiff’s private affairs are objectionable to a reasonable person
False Light
- Plaintiff must prove that defendant published facts about plaintiff or attributed views or actions to plaintiff that place him in a false light and are highly offensive to a reasonable person
Public Disclosure of Private Facts
- Actionable if the publication would be highly offensive to a reasonable person, and is not of legitimate concern to the public
Battery
- Harmful or offensive contact (objective standard)
- With the plaintiff’s person (or anything connected to it)
- Intent by defendant to cause the touching (transferred intent applies)
- And causation
Assualt
- An act or threat (mere words not enough)
- Placing the plaintiff in in reasonable apprehension of imminent harmful or offensive contact with his person,
- Intent by defendant to place plaintiff in apprehension (transferred intent applies)
- And causation
