Torts

Question 1

Tortious interference with business

Answer 1

Make sure to check who is being sued in the question. You must sue the 3rd party. Not the person you are in contract with

Question 2

False Light

Invasion of Privacy

Public Disclosure of Private Facts

Misappropriation of a person’s likeness

Answer 2

False light:
1) facts that are being attributed to the plaintiff about views she does NOT hold to be true OR actions she did NOT take
2) that would be highly offensive to a reasonble person
3) available to the public
4) Defense: TRUTH

Invasion of privacy =
1) D physically intrudes into P private affairs
2) P has a reasonable expectation of privacy
3) A reasonable person would find the intrusion to be HIGHLY offensive
4) Public Disclosure of Private Facts = publication of the actual private acts
5) Newsworthy is something the person puts out in public themselves and is not actionable, like Photos taken in public places,

**Misappropriation of a person’s likeness **= use of a plaintiff’s likeness that has been published to gain a commercial advantage

Question 3

Strict liability

Requirement for assumption of Risk

Answer 3

**Strict liability **
* wild animals
* abnormally dangerous activity if it involves a substantial risk of harm to a person or peorperty even if reasonable care is exercised

Animals
* Animal trespass = Wild animal Owners are strictly liable for reasonably forseeable property damage resulting from their animals trespassing on anothers property.
* Wild animal = just seeing the animal is enough to scare you; Wild animal Owners are strictly liable for injuries caused by their wild animals (lion, bear), even those kept as pets, regardless of the safety precautions taken by the owner.
* An owner will only be liable for a domestic animal (dog,cat, or farm animals) if they KNOW or SHOULD KNOW of their animals dangerous propensities.
* A unknown trespasser can not recover under strict liability and MUST prove negligence.

Abnormally dangerous
* blasting,
* making explosives
* crop dusting
* fumigating for pest control

**Plaintiff must show: **
(1) the nature of defendants activity imposes an absolute duty to make it safe
(2) the dangerous aspect of the activity is the actual and Proximate cause of the injury. Remember: the dangerous aspect of the activity MUST cause the injury otherwise no strict liability
(3) actual damage to person or property

DEFENSE = Assumption of risk = a person unreasonably not seeing the warning signs is not an issue. MUST show the person KNOWS of the risk + Voluntarily assumes the risk

There is strict liability for abnormally dangerous activities.
1. the activity creates a high degree of risk of serious harm to a person or property
2. risk cannot be eliminated by exercise of reasonable care
3. activity is not common usage in the community or appropriate for the location that it is in
4. danger outweighs the value of the activity in the community.

Question 4

Intentional tort of battery vs criminal battery

Answer 4

In the question who is suing for battery? The state or a person?

State = general intent

Person= specific intent and transferred intent applies

Question 5

Protect Property from Trespasser

Answer 5

A person can use REASONABLE force to protect it’s land property or any other type of property

Force that is likely to cause death or substantial bodily harm can NOT be used just to protect your regular property or land property. This type of force will ONLY be allowed if:
1) protecting the dwelling they live in
2) non-deadly force is not sufficient
3) reasonably believes death or serious bodily injury will occur if he does NOT use deadly force

Mistake is NOT a defense to harming someone who has a privilege, right, out of necessity, or to recapture a chattel.

Question 6

Negligent Infliction of Emotional Distress

Bystander

Special Claims

Answer 6

1. D negligently injured V
2. P was in the zone of danger at this time where it would be forseeable that harm would be caused to P
3. P has ED and physical symptomns of it

Bystander
1. D negligently injured V
2. B is closely related to V
3. B was present when the injury occured
4. B viewed or perceived the injury
5. B suffers intense mental suffering, NO physical injury is necessary

Special Claims
A) mishandling of a corpse which causes emotional distress to a close relative to the diseased
B) incorrectly telling a close family member that a person is dead or seriously injured

Question 7

Duty of Care - Firefighter Rule

Answer 7

Applies to Police + Fireman

A professional rescuer assumes the risks of injury that are an INHERENT risk of their dangerous job and can NOT bring a cause of action against someone if they got injured during the rescue

Question 8

Duty of Care
Andrew vs. Cardozo

Answer 8

A general duty of care to act as a reasonably prudent person is owed to all foreseeable plaintiffs.

Andrew = duty of care to ALL people

Cardozo = duty of care is owed to all foreseeable Plaintiffs within the zone of danger created by Ds negligent conduct, where P was foreseeably and actually within that zone.

Question 9

Standard of Care - Child

Parents Vicarious Liability of Child

Answer 9

child of like age, intelligence, and experience

when a child engages in an activity that normally on adults engage in she is required to conform to the standard of care as an adult

Parent will NOT be vicariously liable for their childs INTENTIONAL torts, unless the child was acting as the parents agent to commit it. Many states, will still hold parents liable up to a certain dollar amount though.

Parents will be liable for their OWN negligent supervison of the child 1) they know of their childs propensity, 2) they have the actual ability and authority to control their childs actions.

Question 10

Actual Cause - 3 tests

Answer 10

Actual cause: Defendants breach of duty is the CAUSE IN FACT of the injury.

But for test: but for the defendant’s negligent conduct, Plaintiff’s injury would NOT have resulted

Substantial Factor test: Where multiple defendants are at fault and their conduct combines to cause the harm to plaintiff, they will ALL be jointly and severally liable as their actions were each a substantial factor causing the injury because any one of them alone could have caused the injury

Alternate causes where only 1 act at fault: When there are multiple acts and only one of the acts could have caused the Plaintiff’s injury, but its unknown which act did, the BURDEN OF PROOF SHIFTS to the defendants to each show they didnt cause the harm and the other did. If no defendant can prove the other was liable, all Defendants will be jointly and serverally liable.

Question 11

Proximate Cause

Answer 11

The defendant is liable for all harmful results that are the NORMAL INCIDENTS OF and WITHIN THE INCREASED RISKS caused by, their conduct.

Direct Cause: nothing interrupts the chain of events from the time of D’s negligent act to the time the plaintiff is injured

Indirect Cause: After D’s negligent conduct, an intervening force comes into motion that combines with D’s conduct causing the Plaintiff Injury. D will be liable for the harm caused IF D’s negligent conduct created a foreseeable risk that this intervening force would harm the plaintiff.

Superseding cause: if the intervening force is unforeseeable, it will be deemed a superseding force that breaks the causal connection between the defendant’s negligent conduct and the plaintiff’s injury.

Typically, this includes: acts of god, intentional torts, criminal acts, and negligent acts by third parties, UNLESS the defendant’s breach made it MORE likely for these things to occur.

Question 12

Standard Duty of Care owed

Answer 12

A person has a duty to act as a reasonably prudent person would UNDER the same circumstances, UNLESS a special duty of care applies.

A reasonably prudent person is someone with the SAME physical characteristics as the Defendant, BUT the knowledge and Mental capacity is of an AVERAGE member of the community.

If Defendant has superior knowledge and skills than the average person he is required to exercise the experience.

Question 13

The doctrine of Respondeat Superior

employee Intentional TORTS

Answer 13

Under the Doctrine of Respondeat Superior an employer will be held vicariously liable for torts of (1) their employees (2) who acted within their scope of employment.

However, a person hiring an independent contractor is generally not liable for the independent contractor’s actions, UNLESS: (a) the duty is non-delegable because work occurs in a public place; or (b) the work involves inherently dangerous activities, such that there is a peculiar risk of physical harm to others

The major test to determine whether someone is an employee or an independent contractor is whether the employer has a right to control the method and manner of the work.

Factors a court uses to determine the degree of control include: if pay was hourly or per job, if employer-provided tools or other items to perform the job, if the job was for the benefit of the employer, and the length of the working relationship

Vicarious Liability for your employees Intentional torts are typically NOT in the scope of employement unless:
(a) specifically authorized by employer (bouncer)
(b) employee driven by deisre to serve employer (removing rowdy customers)
(c) was the result of naturally occuring friction in that type of work (bill collector)

Question 14

the agent acts within the scope of the business

Frolic and Detour

Answer 14

An agent acts within the scope of the business if they are (a) performing work assigned by the principal, (b) engaging in a course of conduct that is subject to the principal’s control, and (c) their act was in the same general nature as authorized work. Generally, the scope is broad so long as the agent was acting with the intent to further the principal’s business purpose, even if the act itself is forbidden. Other factors include: if act was the kind agent was hired for and if act occured while “on the job” (time and place bounds of their work)

An employee making a MINOR deviation from their employer’s business for their own purpose is STILL acting within the scope of employment. However, if the deviation in time or place is SUBSTANTIAL, the employer is NOT liable.

Question 15

Breach of duty

Answer 15

When the defendant’s conduct falls below the applicable standard of care they have breached their duty.

A reasonably prudent person [would/would not] [fill in action] because ________.

Question 16

Negligent - Actual Damage Required

Answer 16

Damages requires personal injury or property damage. Damages will NOT be presumed, and Nominal damages are NOT available. Plaintiffs damages can include economic or non economic losses including past, present, and prospective future damages. Plaintiff must mitgate their damage, otherwise they are barred from recovery passed that point. Punitive damages are avaialble only if defendants conduct was Wanton and Willful. Attorneys fees and interest on the money spent are NOT recoverable damages.

Property damage: emotional distress for harm caused to the property courts will likely not give recovery. A person will get the cost to repair or fair market value if almost destroyed.

Question 17

Negligence Per Se

Answer 17

A presumption of care and breach will be made if the plaintiff can show:
1) the law provides a criminal penalty
2) she is in the class intended to be protected by the law
3) the law was intended to protect the type of harm that the plaintiff suffered

Excuses Defendant can use:
(a) compliance with the statute would cause MORE harm than the violation of it
(b) compliance was beyond the defendant’s control

*On the exam you should still show duty of care and breach regardless as a fail safe if court wont apply this

Question 18

Intentional Tort - Assault

Answer 18

1) intentional act, more than violent words
2) causing the plaintiff to be in reasonable apprehension of harmful or offensive contact that is IMMINENT (right then and there)
3) caused by the defendant

Question 19

Intentional Tort - Battery

Answer 19

1) voluntary + intentional
2) application of force (or sets in motion a force)
3) upon another person that results in actually harmful and offensive contact
4) caused by the defendant

A kid or an insane person can be held liable. As long as they INTENDED to make the offensive contact with the plaintiff or intended to put the person in reasonable apprehension of fear. No requirement that they appreciate the risks

Remember = to check the question. who is suing who?

Question 20

Intentional Tort - False Imprisonment

Answer 20

1) intentional act
2) to confine, restrain, or detain P
3) within fixed boundaries
4) with no reasonable way to escape
5) of which P is aware or harmed
6) caused by the defendant

Question 21

Intentional Tort - Intentional Infliction of Emotional Distress

Bystander claim

Answer 21

1) intentional or reckless act
2) making the plaintiff actually suffer severe emotional distress damages
3) caused by the defendant
4) with his extreme and outrageous conduct (bill collectors)

Bystander:
1) physically present and could clearly see it
2) D seriously injured or killed V
3) D knew B was present
4) D acted intentionally or recklessly
5) B is close relative + emotional mental distress; OR
5) B physical bodily harm from the distress

Question 22

Intentional Tort - Trespass to Chattels

Answer 22

1) intentional
2) interference of another use or possession
3) of a chattel
4) creating actual damage or loss of possession
5) caused by the defendant

Question 23

Intentional Tort - Conversion

Remedy?

Answer 23

1) intentional
2) SUBSTANTIAL interference of another use or possession warranting making the defendant have to pay to replace the whole thing
3) of a chattel
4) creating actual damage or loss of possession
5) caused by the defendant

Replevin to get it back OR Full value AT the time of the taking

Question 24

**Standard of Care - **
Business Invitee
Licensee
Unanticipated trespasser
Anticipatd Trespasser

Answer 24

Undiscovered Trespasser = not duty owed

**reasonable care in operations + warn of or make safe non-apparent KNOWN **
Anticipated trespasser = highly dangerous artificial conditions
Licensee = dangerous artificial conditions
Invitee = dangerous artificial conditions + duty to make reasonable inspections of the property to find and make safe non-obvious dangerous conditions within a reasonable time period.

**Anticipated Trespasser **= enters the land without permission, but was expected by the owner is owed

**Licensee **= reasonably believes they can enter the land based on owner’s permission, words, or conduct, for their OWN benefit/purpose (social guest) is owed

Invitee = invited onto the property for the owner’s benefit (business), but exceeding the scope of the invite will make the person become a tresspasser, either anticipated or unanticipated.

Question 25

Intentional Tort - Trespass to Land

vs.

Negligent Trespass to Land

Answer 25

Intention Tort
1) intent to enter the property, NO requirement to actually know that it is someone elses private property
2) Physical invasion
3) of the land of another

**Negligent **
1) Negligent
2) Physical invasion
3) of the land of another
4) damages - liable for any damage to the land

Question 26

Transferred Intent - intentional TORT

Answer 26

FAB TLC

The transferred intent doctrine applies where: (1) Defendant had the intent to commit a tort against one person AND (2) in trying to do that tort he either (a) commits a different tort against the same person OR (b) injures another person by the same or a different tort.

Transferred intent only applies to the Intentional Torts of: Battery, Assault, False Imprisonment, Tresspass to Land, and Tresspass to Chattel.

Question 27

Intentional Tort Defenses

Answer 27

Consent
Self Defense
Defense of Others
Defense of Property
Necessity
Privilege to Arrest
Shopkeeper Privilege
Recapture of Chattels

Question 28

Intentional Tort Defense - Necessity

Answer 28

A person can interfere with someone elses real or personal property if:
(1) it is reasonably and apparently necessary
(2) to prevent great harm to a person or property
(3) because preventing the harm outweighs the interference.

Public Necessity: Defendant is NOT liable and its an absolute defense IF the invasion was reasonably necessary to protect a PUBLIC HARM that effects the overall community or lots of people

Private Necessity: If Defendants invasion of property was to protect himself or someone else then he will have to pay the Plaintiff for actual damages, but wont have to pay nominal or punitive damages. However, if the invasion was for the benefit of the Plaintiff then its an absolute defense and bars recovery.

Question 29

Intentional Tort - Shop keepers privilege

Answer 29

A shop owner that detains a suspect will not be liable for false imprisonment, unless he exceeded his privilege, if he can show:

(1) reasonably believed suspect stole
(2) detention was reasonably done with NO deadly force
(3) Detention was only done for the purpose of investigation
(4) detention was only for a reasonable period of time.

Reasonable time: Typically courts find 10-15 minutes to be a reasonable amount of time.
Investigation: Police must be called for the actual arrest.

Question 30

Malpractice case

Answer 30

1. Professional owed a duty to the plaintiff = A professional owes a duty of care to act with the knowledge and skills that an average member of that profession in good standing would in a similar community.
2. Professional breached that duty
3. breach was the actual and proximate cause of the harm
4. damages resulted from the breach

Damages - but for the lawyer’s negligence he would have succeeded on the actual underlying claim (then to negligence analysis for that claim)

Question 31

Standard of Care - Doctor

Duty to disclose and obtain informed consent

Loss of Chance Claim

Answer 31

A medical doctor owes a duty of care to act with knowledge and skills as an average medical doctor in good standing would based on national standards. This duty extends to patients only.

A doctor has a duty to obtain informed consent from his patient before treatment by disclosing risks of the treatment that a reasonable person would want to know. Failing to disclose a risk that if known a reasonable person would not have consented to surgery is a BREACH of duty by the doctor.

Loss of chance = Allows medical malpractice claims for the percentage of lost chance for survival

Question 32

Standard of Care - Common carrier and Innkeeper

Answer 32

Common carriers and Innkeepers are required to exercise a VERY HIGH degree of care towards their passengers and guests and are liable for SLIGHT negligence. Plaintiff MUST be a passenger or guest.

Innkeepers have a duty to prevent injury to guests from a third party.

This NOT strict liability!!! This just means they are often MORE liable when it comes to negligence claims.
Note = in answering a question about an innkeeper or common carrier make sure there is a duty, breach, cause, and damage
Note = assumption of risk is NOT a full bar when it comes to regular negligence claims.

Question 33

Standard of Care - Emergency

Answer 33

If there is a present emergency, a person must act as a reasonably prudent person would under the same present emergency. However, if the defendant is the cause of the emergency, courts will not look at his conduct under the emergency circumstances.

Question 34

TRAMPOLINE

Standard of Care - Attractive Nuisance Doctrine

Answer 34

A land possessor has a duty to exercise ordinary care to make the property reasonably safe to avoid forseeable risk of injury to children if:
(1) he knows or should know kids frequent his property
(2) he knows or should know of a dangerous condition on the land
(3) the expense to fix the danger is SLIGHT compared to the risk
(4) condition is dangerous because child lacks the ability to appreciate the danger of it due to his age and maturity

Question 35

Duty of Care - Trespasser

Answer 35

Unknown trespasser: Generally, a land possessor has no duty to unknown trespassers or people that go beyond the scope of their right.

Anticipated or discovered trespasser: If land possessor knows or should know of the presence of a trespasser he must exercise reasonable care when actively operating on the property and either warn of or make safe ONLY KNOWN HIGHLY DANGEROUS ARTIFICIAL (man made) conditions.

Question 36

Res Ipsa Loquitur

Answer 36

If facts cannot establish breach of duty because there are circumstances surrounding the event unknown to the Plaintiff then she may use Res Ipsa Loquitur, which means the thing that speaks for itself, to prove breach. If Plaintiff is able to establish Res Ipsa Loquitur, the plaintiff has made her prima facie case and NO direct verdict can be made for the defendant. However, plaintiff CAN STILL LOSE if the trier of fact rejects the inference of negligence because Defendant is able to provide evidence that will rebut this inference by providing evidence that he did exercise his duty of due care or that the instrument was not in his exclusive control.

(1) the event is the kind that ordinarily does not occur in the abscense of negligence
(2) the instrumentality that caused harm to the Plaintiff was in the exclusive control of the Defendant
(3) injury was not caused by plaintiff or anyone else based on evidence

Question 37

Eggshell Rule

Answer 37

A defendant takes his victim as he find him. Thus, he may be liable for all harm a plaintiff suffers as a result of his conduct, EVEN IF the plaintiff suffered from a preexisting mental or physical condition that made the harm different or greater than what a normal person might suffer.

Question 38

Pure Comparative Negligence

Partial Comparative Negligence

Contributory Negligence + Last Chance Doctrine

Answer 38

Pure comparative negligence: A plaintiffs negligent acts will NOT bar recovery, however, it will reduce their damages by the percentage they are at fault. Plaintiff can recoup all charges from 1 person then that person has to go get it from the other

Partial = If a Plaintiff contributed 50% or less to their injury then damages are reduced by their percentage of negligence. However, if they are 51% or more responsible, they recover nothing.

Some Minority courts follow contributory negligence which is a complete bar to recovery if Plaintiff is at fault even just 1%. (same theory under traditional assumption of risk) HOWEVER, under the last chance doctrine, IF defendant would have been able to avoid the injury at the last oppurtunity before the accident and he did not, then plaintiff can recover.
If defendant violated a statute and the statutes very purpose was to protect people like plaintiff from using their lack of judgement then defendant can not say plaintiff contributed.

Question 39

Defense - Assumption of Risk

Answer 39

Defendant can deny Plaintiffs recovery if he can establish plaintiff assumed the risk by showing:
(1) plaintiff knew or should have known the risk based on an objective standard and
(2) plaintiff voluntarily consented despite knowing the risk.

It can be implied assumption if the risk is one a reasonable person would clearly appreciate.

However, it can not be used as a defense against the plaintiff if: there were no alternatives, fraud, force, or emergency.

Question 40

Negligent Hiring

Answer 40

An employer may be found liable for his OWN negligence when they fail to exercise reasonable care in hiring an employee to perform particular duties

Question 41

Joint and Several Liability

Answer 41

• If multiple defendants acts combine to proximately cause a single indivisibile injury then the defendants will be held to be jointly and severally liable and the plaintiff may recover the entire amount from any one of them, whether they acted in concert together or independently. Defendant can then sue other defendants for contribution.
• Recovery of full payment is satisfaction. Only one satisfaction is allowed. Until there is a satisfaction, plaintiff may proceed against all jointly liable parties.
• If 1 defendant is ONLY liable for negligence, but the other defendant is liable for INTENTIONAL TORT then the defendant can seek indemnity from the other guy for the FULL amount
• If 1 of the defendants did an INTENTIONAL TORT he can NOT seek ANY contribution from the other guy

Question 42

Contribution

Answer 42

A contribution suit is a legal action where one party can compel another to reimburse or financially contribute for a shared obligation or liability. Not allowed for intentional torts.

Question 43

Indemnity

Answer 43

Involves shifting the ENTIRE loss between or among defendants. It is available by contract, strict product liability for non manufacturers, or vicarious liability.

Question 44

statutory survival act

Wrongful Death Claim

Answer 44

A statutory survival act allows a tort action to continue even after 1 of the parties dies and allows recovery up to the point of death. Available damages are those the dead person would have been entitled to if she was alive. It does NOT apply to: defamation, right to privacy, or malicious prosecutions.

If someone dies, the exceutor of their estate, wife, or kid may assert a wrongful death claim against a negligent person. Plaintiff MUST prove the underlying tort led to the person’s death. Damages are limited to the loss suffered due to the death, including: loss of support, loss of services, funeral and burial expenses, loss of companionship, and loss of consortium (companionship like help around the house sex). Punitive damages are not available.

The decedent’s creditors have NO interest in the amount recovered under a wrongful death claim.

Question 45

To state a prima facie case for negligent misrepresentation a plaintiff must show:

Fraud

Answer 45

(1) Defendant made a false statement of a material fact in a bussiness or professional capactiy
(2) Defendant acted negligently because there was no reasonable grounds for believing the misrepresentation to be true
(3) with the intent to induce plaintiffs reliance on the false statement
(4) whereby plaintiff justifiably and reasonably actually relied on the false information
(5) causing plaintiff to suffer pecuniary damages

Fraud - that he either KNEW was false or was recklessly indifferent to the truth (scienter)

Defenses: if the misrepresentation was not intentional then contributory negligence is available as a defense

Question 46

Concealment will result into fraud if

Answer 46

Concealment is an affirmative act intended to keep another from learning of a fact and is equivalent to misrepresentation. Generally there is NO duty to disclose information UNLESS:
(a) a fiduciary relationship exists
(b) it is necessary to correct an earlier mistake
(c) active concealment of a material fact occurs
(d) a person is selling real property and knows material facts that affects the value of the property that the buyer is unaware of and cannot reasonably discover

Question 47

Products Liability (strict liability in tort)

Answer 47

Buyers, forseeable users, and bystanders can sue a commercial supplier for strict products liability. There is no privity requirement. Any disclaimer to liability is irrelevant.

(1) Defendant is a commercial supplier
(2) product defect existed AT THE TIME IT WAS SOLD making it unreasonably dangerous
(3) product was not substantially altered from the time it left the commerical supplier to the time it reached the consumer
(4) harm suffered was actually caused by a defect that existed in the product when it left the defendants control (actual cause)
(5) plaintiff used the product in a reasonably forseeable manner (proximate cause)
(6) actual physical injury or property damage, NOT solely economic loss or NOT solely harm to the product itself

Defenses: assumption of risk, comparative negligence IF plaintiff misused the product in an unforseeable way

Defective by design = compare the risks, benefits, purpose of the CURRENT design to those of a FEASIBLE ALTERNATIVE design

Failure to Warn = ONLY if the warnings would have PREVENTED the plaintiff’s harm and it is NOT an obvious danger

Misrepresentation = seller regularly is in this buisness and the seller misrepresented a material fact about the product that the buyer actually and justifiabily relied on which caused harm to him or his property.

Question 48

Malicious Prosecution
Abuse of Process

Answer 48

**Prosecutors are immune from liability. A malicious prosecution requires the following elements: **

(1) Any person, other than a prosecutor, that is actively involved in starting or continuing a criminal or civil proceeding against the Plaintiff (filing a police report or calling the police)
(2) for an improper purpose (other than to obtain justice)
(3) the claim was NOT supported by probable cause (reasonable belief the defendant is guilty)
(4) the claim is dissmissed in Plaintiff’s favor
(5) the plaintiff suffered damages

Abuse of Process
An action for abuse of process occurs when:
(1) one party intentionally uses the courts legal process (deposition, discovery)
(2) against another for an ulterior improper purpose and
(3) defendant committed an act or threat to accomplish this purpose
(4) causing damages to the Plaintiff.

Question 49

Nuisance Claim

Answer 49

Private Claim
1) substantial interference with plaintiffs use or enjoyment of his land
2) that an average person within the the community would find to be offensive, inconvenient, or annoying

Public Claim
1) special unique damages that doesnt apply to everyone else
2)

Question 50

When does a medical or social work professional have an imposed duty?

Answer 50

If they learn of information that the the patient poses a specific danger to a 3rd party

No duty when the professional only has reason to believe that the patient poses a danger to himself
Example: patient commits suicide and dad gets ED

Question 51

Defamation

Answer 51

**Defamation: **
1) Defamatory Statement was made
2) of or concerning the plaintiff
3) that D published to a 3rd party
4) that harms P’s reputation
5) Damage to the reputation is shown based on: libel, slander, slander per se, or public figure

Additionally, if the defamation claim involves a public figure, public official, or matter of public concern 1st amendment considerations arise requiring the plaintiff to also prove:
(7) the statement is false
(8) the intent of the defendant depends on if its a public figure or private person

Defenses: Consent, truth, absolute privilege, qualifed privilege

**Public Figure: A plaintiff is a public figure when he has achieved fame, notoriety, or voluntarily assumes a role in a public controversy. **
* Actual Malice exists when the defendant makes the statement with either: (a) knowledge that it was false OR (b) reckless disregard as to whether it was true or false.
* Damages are presumed if malice is shown and punitive damages are available.

**Private Person about a matter of public concern: Any person or media NOT considered a public figure/official is a private person. A matter of public concern is determined by looking at: content, form, and context of the publication **
* need to prove that the defendant was negligent as to the truth or falsity of the statements published
* Only actual injury damages are recoverable, unless malice exists then damages are presumed and punitve damages are available.

• defamatory statement: A statement that would cast the plaintiff in a negative light or subject him to public ridicule. Someones pure opinion or a true statement is NOT a defamatory statement. Statements of opinion may be defamatory and actionable if a reasonable listener or reader would have reason to believe that the declarant has a factual basis for his opinion. MUST be more than mere name calling. If its not defamatory on its face, plaintiff can provide additional facts as “inducement” to establish the meaning as “innuendo.”
• concerning plaintiff: The statement does not need to name the Plaintiff specifically, but must concern the Plaintiff, where a reasonable person would know the statement is reffering to the Plaintiff. If reference isnt clear on its face, Colloquium evidence can be offered to show reference.
• published to third party: Defendant communicates the statement to a third party and the third party MUST understand the statement to effectuate publication. Its the intent to publish the statement that is neccessary, NOT the intent to defame.
• Reputation: Plaintiff must show the statement either harmed her reputation or if believed could have done so.
• Repeaters of the statement can also be held liable to the same extent, even if they state the source or they dont believe it. The person selling the magazines or replaying the audio files is a secondary publisher and will ONLY be liable if he knows or should know its defamatory.
• Statements of opinion may be defamatory and actionable if a reasonable listener or reader would have reason to believe that the declarant has a factual basis for his opinion.

Question 52

• Libel
• Slander
• Slander Per Se
• Absolute Privilege
• Qualified Privilege
• Statement vs. Opinion

Answer 52

* Libel = Libel is the written or printed publication of a defamatory statement in some permanent format including TV and Radio. Plaintiff does NOT need to prove special damages, and general damages are presumed, unless the statement was not defamatory on its face and it does not fall in one of the slander per se categories.

* Slander = Slander is spoken or verbal defamation and it ALWAYS requires the Plaintiff to prove special damages like some pecuniary loss, unless the statement falls within a slander per se category.

Slander Per Se = Within Slander per se, Plaintiff does NOT need to prove special damages, and general damages are presumed if the statement:
(a) misconduct or incompetence in the platintiffs trade or occupation
(b) alleges the plaintiff has a loathsome disease
(c) criminal activity
(d) imputes serious sexual misconduct to the plaintiff

**Statements of opinion **may be defamatory and actionable if a reasonable listener or reader would have reason to believe that the declarant has a factual basis for his opinion.

**Absolute priviledge **extends to remarks made during judicial or legislative proceedings, by federal government and most state government officials, and between spouses. This privilege exists EVEN IF defendant acted with malice.

Qualified priviledge is allowed if the defendant can prove:
(1) statement is neccessary for a socially useful context (public interest) OR was authorized by the other party and now must protect his own interest
(2) the statements are relevant to and within the scope of the useful purpose for the speech.
(3) the speaker has a good faith belief in the truth of the statements
(4) The priviledge can be lost if statement made not within the scope of priviledge or if speaker acted with actual malice.

Examples: employment reference, credit report, letter of reccomendation, book reviews, statement to parole board, reporting a violation to an agency, reporting facts to the police

Question 53

A commercial seller of a non-defective comonponent will be liable when?

Answer 53

He will be strictly liable ONLY if he SUBSTANTIALLY PARTICIPATED in the integration of the part INTO the design of the unfinished product.

and the INTENTEGRATION of the compoinent is what made the finished product defective.

He is NOT strictly liable for selling a component part that is NOT defective

Question 54

Permanent Injunction

Answer 54

1. plaintiff has an interest in the property
2. legal remedies are inadequate to compensate for the interest
3. injunction warranted after balancing the hardship to each party in the event it would be granted and would not be granted
4. it would be feasible to enforce
5. no legal defenses

Question 55

BEST defense for a products strict liability case

WORST defense

Answer 55

Best Defense = Assumption of Risk or product substantially changed from the condition in which it was sold

WORST Defense = Contributory negligence because it is NOT a defense in products strict liabilty when the person failed to recognize the danger or guard against its existence

The person MUST KNOW + be AWARE + Understand the danger and then that would be assumption of risk

Question 56

What defense is NEVER allowed for an intentional tort?

Answer 56

Contributory Negligence

this ONLY applies to negligence claims

Question 57

Punitive Damages
* Intentional Tort
* Negligence
* Recklessness

Answer 57

Intentional Tort = conduct was outrageous or malicious

Negligence = conduct was wanton + willful, reckless, or malicious (difficult to prove)

Recklessness = showing D’s actions went beyond mere negligence

Question 58

Intentional Torts comitted by Insane people

Answer 58

• insane people WILL be liable for intentional torts ONLY if they are capable of the INTENT to do a harmful act, even if his insanity was the cause of the intent it is irrelevant

Defense = defendant did not know he was striking a person

Defense = defendant did not intend to hit the plaintiff at all

Question 59

Learned Intermediary Doctrine

Answer 59

Insulates manufactures from strict liability who make PRESCRIPTION medication from liability if they provide adequate warnings to the prescribing doctor/pharmacist.

NOT applied to over the counter medication