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2024 DC Bar Exam - UBE > TORTS > Flashcards

TORTS Flashcards

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1
Q

What is required for a prima facie case for intentional tort liability?

A

(Burden of proof => Plaintiff)

1) D’s intent
- Specific (D’s purpose is to bring about these consequences)
- General (D knows with substantial certainty that the consequences will result)
- NO need to intend for injury to occur (as long as D’s intent caused harmful result)

2) Causation
- D’s conduct is ‘substantial factor’ in resulting injury (almost always is)

3) D’s act
- Volitional movement on D’s part (D’s will)

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2
Q

What is the rule for transferred intent?

A

Allows:

1) Intent as to one tort to qualify as intent for another tort, and;

2) Intent as to one person to qualify as intent as to another person; applies to:

  • Battery
  • Assault
  • False imprisonment
  • Trespass to land
  • Trespass to chattel
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3
Q

What is required for battery?

A

1) Intentionally causing

  • Direct
  • Indirect (D’s act sets in motion a force that brings about harmful/offensive contact)

2) a harmful or offensive

Harmful (actual injury/disfigurement)
- Offensive (NO consent implied from reasonable person based on P’s conduct/circumstances, e.g. saving pedestrian from car accident, whether safe to do so)
- Offensive (embarassment)
- NO P’s awareness required

3) bodily contact with another person

  • P’s body
  • Anything connected to P’s body
  • Create situation likely to harm P
  • NOT animals
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4
Q

What is the difference between intentional torts to person and negligence in terms of damages?

A

Intentional torts to person:

  • NO damages required (UNLESS IIED)
  • Nominal damages recoverable (UNLESS IIED)
  • Punitive damages recoverable (D’s malice)

Negligence:

  • Damages required
  • NO nominal damages recoverable
  • NO punitive damages recoverable
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5
Q

What is the difference between intentional torts to the person and IIED?

A

Battery/Assault/False imprisonment

  • Intent required
  • Nominal damages
  • Punitive damages

IIED

  • Intent/Recklessness required
  • Actual damages (for severe emotional distress)
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6
Q

What is required for assault?

A

1) Intentionally placing a person in

2) reasonable apprehension of an

  • NOT exaggerated fears of contact
  • Knowledge of assault required (unlike battery)
  • NO knowledge of D’s identity required
  • D’s apparent ability to commit battery
  • Words + Overt act (otherwise words alone can negate assault)

3) imminent

  • NOT unloaded gun + awareness of unloaded gun

4) harmful or offensive contact

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7
Q

What is required for false imprisonment?

A

1) An intentional

2) act of restraint on another person causing that person’s

  • D’s physical barriers
  • D’s physical force vs P/P’s family/P’s property
  • D’s direct/indirect (reasonable) threat of force vs P/P’s family/P’s property
  • D’s failure to release P when under legal affirmative duty to do so
  • D’s invalid use of legal authority (false arrest)
  • NOT moral pressure

3) confinement within bounded area

  • P’s freedom of movement is limited in ALL directions
  • NO reasonable means of escape + Known to P or harmed by confinement
  • OTHERWISE shoplifer’s privilege allowed
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8
Q

Does the length of time of false imprisonment matter?

A

No

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9
Q

Must Plaintiff resist physical force used in false imprisonment?

A

No

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10
Q

What is required for intentional infliction of emotional distress?

A

1) Extreme + Outrageous conduct that

  • Transcends all bounds of decency tolerated by society
  • NO physical injury

2) intentionally or recklessly causes a person to suffer

3) severe emotional distress

‘Severe’ emotional distress (More outrageous; Less damages required)
- NO physical injury or medical diagnosis required

4) causation
- Actual: Plaintiff
- Proximate: Bystander case

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11
Q

What are examples of extreme and outrageous conduct?

A

Extreme business conduct
- Continuous methods of bill collection

Misuse of authority
- School threats/bullying

Offensive/Insulting language

  • P has special relationship with D
  • D knows of P’s sensitivity

Common carrier/inkeeper’s conduct vs P (patron)

Known sensitivites

  • Children
  • Pregnant women
  • Elderly people
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12
Q

What is required for Bystander IIED?

A

Plaintiff-Bystander must show the D intentionally or recklessly caused severe emotional distress to:

1) A member of the victim’s family who is present at the time, even if such distress does not result in bodily harm; or

2) To any other person who is present at the time, if such distress results in bodily harm

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13
Q

What is the difference between negligent and intentional infliction of emotional distress?

A

NIED

  • Was in the zone of danger (risk of physical harm) and suffered physical symptoms of distress
  • Observed a close relative suffering physical harm
  • D damaged the dead body of the plaintiff’s close relative; or
  • D misinformed the plaintiff that a relative died or was seriously injured

IIED

  • D’s knowledge of P’s presence + close relation
  • Severe emotional distress
  • Extreme + Outrageous conduct
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14
Q

What is required for trespass to land?

A

1) Intentionally entering or remaining on (or causing another person or object to enter or remain on)

  • Knowledge with substantial certainty of objects entering the land (NOT intent to trespass)
  • D’s mental state NOT relevant

2) another’s person’s real property

3) without permission (damage to land is not required and includes the space above/below the ground)

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15
Q

What is the difference between the intentional torts to property?

A

Trespass to land
- NO damage required

Trespass to chattel/Conversion
- Damage required

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16
Q

What is the difference between intentional and negligent trespass over property in terms of damage?

A

Intentional trespass
- NO damage required

Negligent trespass
- Damage required

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17
Q

What is required for trespass to chattel?

A

1) An act that

2) intentionally

  • Cause interference (NOT trespass)
  • D’s mistake of chattel NOT relevant

3) interferes with (less serious than conversion)

  • Intermeddling (direct damage)
  • Dispossession (deprive P’s right)

4) another’s personal property (interference must cause dispossession of, cause harm to, or reduce the value of the chattel)

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18
Q

What remedies are available for trespass to chattel?

A

Direct damage/Loss of use
- Actual damages

Dispossession
- Damages (rental value)

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19
Q

What is required for conversion?

A

1) An act causing

  • Cause interference (NOT trespass)
  • Includes BFP
  • D’s mistake of chattel NOT relevant

2) serious and substantial interference with or destruction of

  • Wrongful acquisition (theft/embezzlement)
  • Wrongful transfer (sale/misdelivery)
  • Wrongful detention (refuse to return)
  • Substantial change
  • Severe damage/destruction
  • Misuse of chattel

3) another’s personal property (substantial interference justifies the defendant pay the full value of the personal property)

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20
Q

What remedies are available for conversion?

A

Damages
- Fair market value (at time of conversion)

Replevin
- Return of chattel

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21
Q

What is the difference between trespass to chattel and conversion?

A

Trespass to chattel

  • Less serious interference (damages < 50% of fair market value)
  • Remedies: Actual damages/Rental value for dispossession

Conversion

  • More serious interference (damages > 50% of fair market value)
  • Remedies: Replevin/Fair market value at time of conversion
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22
Q

What is required for consent?

A

1) Valid consent (capacity)
- Express (NO known mistake by D/NO fraudulent inducement NOT re collateral matter/NO immediate duress)
- Implied (Apparent consent that reasonable person would infer from P’s conduct or custom/Consent implied by law like emergencies)

2) Not exceed scope of consent
- Not to do something substantially different

3) NOT criminal act
- Consent NOT applicable to crimes (majority view)

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23
Q

What is required for self-defense?

A

1) D reasonably believes/mistaken that he will be attacked
- UNLESS duty to retreat ‘safely’ (NOT from D’s own dwelling)
- UNLESS D is initial aggressor (NOT D using non-deadly force then P using deadly force)
- UNLESS injures TP bystander ‘intentionally’ (liable to TP)

2) D may use force as ‘reasonably necessary’ as it appears to prevent harm
- If serious injury likely => Can commit death/serious bodily injury

3) To prevent commission of tort
- NOT already committed tort (NO retaliation allowed)

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24
Q

What is required for defense of others?

A

1) D reasonably believes/mistaken that aided person had right to self-defense
- Even if aided person was initial aggressor

2) D may use ‘as much force’ as he could have in self-defense

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25
Q

What is required for defense of property?

A

Request P to desist/leave first
- NOT clearly futile/dangerous to D

Use force vs P

1) Clearly futile/dangerous to D
2) Either;
- Reasonable force
- Deadly force (if invasion of property involves serious threat of bodily harm)
3) To prevent tort commission (NOT already committed)
4) D’s real/personal property
5) ) Reasonable mistake as to;
- Intrusion
- Request to desist/leave
- Privilege (right of re-entry/necessity) > Supersedes defense of property

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26
Q

What is required for re-entry onto land?

A

Ejectment (modern view) => Recover possession of land

- NOT self-help (common law) => Rejected

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27
Q

What is required for recapture of chattels?

A

1) ‘Timely’ deemed
- UNLESS clearly futile/dangerous

2) Recovery from wrongdoer
- Tortfeasor
- TP with knowledge of tort
- NOT innocent party

3) Entry on land to remove chattel
- Wrongdoer’s land
- Innocent party’s land ((1) Refuses to return; (2) Reasonable time; and (3) Peaceful manner)

4) Reasonable force to recapture chattels
- NOT cause death/serious bodily harm

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28
Q

What is required for shoplifting detention/privilege to detain shoplifters?

A

1) Reasonable belief as to theft

2) Reasonable manner
- Non-deadly force

3) Reasonable period of time

4) Investigative purposes
- OTHERWISE false imprisonment

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29
Q

What is required for privilege of arrest?

A

Felony arrest (by police)

1) Felony committed (reasonable belief)
2) Arrestee committed felony (reasonable belief)
3) Reasonably necessary force/Deadly force (potential serious harm)

Felony arrest (by citizen)

1) Felony committed (NO reasonable belief)
2) Arrestee committed felony (reasonable belief)
3) Reasonably necessary force/Deadly force (potential serious harm)

Misdemeanor arrest (by police/citizen)

1) Breach of the peace
2) Misdemeanor takes place in presence of D
3) Reasonable necessary force (NO deadly force)

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30
Q

What is required for necessity?

A

1) Trespass/Conversion
2) Reasonably + apparently necessary to avoid threatened injury from ‘natural’ force
3) Threatened injury is substantially more serious than necessity

4) Either;
- Public necessity (Protect public good)
- Private necessity (Protect limited number of people)

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31
Q

What is required for discipline?

A

1) Reasonable force
2) By Parent/Teacher

3) On Children
- Age + sex
- Seriousness of their behaviour

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32
Q

What is the difference between private nuisance and trespass to land?

A

Private nuisance
- Possession (Tenant)

Trespass to land
- Ownership (Landlord)

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33
Q

Can landowner use force if trespasser enters land by necessity?

A

NO

- Trespasser’s privilege (Necessity) > Landowner’s defense of property

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34
Q

When may defendant be liable for damages caused by necessity?

A 
Qualified privilege (liability)
- Protecting D (himself)

NOT absolute privilege (NO liability)
- Protecting P (landowner)

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35
Q

Are children/mentally incompetent persons liable for intentional torts?

A

Yes

- Knowledge of harmful result required

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36
Q

What is the duty of care?

A

Defendant has legal duty to act as ordinary, prudent, reasonable person would when engaging in an activity

  • Take precautions against creating unreasonable risks of injury
  • To foreseeable persons
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37
Q

What is required for Defendant to be liable for injuries to rescuers?

A

1) D negligently placed P/TP in peril

2) P was injured in attempting a rescue
- NOT reckless rescue

=> P is foreseeable plaintiff

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38
Q

Does Defendant owe duty to police officers/firefighters?

A

Unlikely (Firefighters’ rule)

  • Public policy
  • Assumption of risk
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39
Q

What is required for Defendant to be liable for wrongful birth?

A

1) Viable fetus (at time of injury)

2) Parent sues for;
- Wrongful birth (failure to diagnose defect)
- Wrongful pregnancy (failure to properly perform contraceptive procedure)

=> Parent can recover damages for;

  • Unwanted labour (medical expenses, pain and suffering)
  • Child’s defect (additional medical expenses, emotional distress)
  • NOT health child (NOT child-rearing expenses)
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40
Q

What is the applicable basic standard of care?

A

D’s conduct is measured against the reasonable, ordinary, prudent person (objective standard) (Reasonable Prudent Person standard)

  • Same physical characteristics
  • Same knowledge/experience as average member of community (or must exercise with superior knowledge as superior person would)
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41
Q

What is required for professionals to exercise particular standard of care?

A

1) Must use superior judgment/skill/knowledge as he actually possesses

2) In good standing in similar community
- National standard

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42
Q

When are doctors liable for failure to disclose risks of treatment?

A

1) Serious risk

2) If disclosure was made => Reasonable person would have withheld consent to treatment

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43
Q

What is required for children to exercise particular standard of care?

A

Normal activities (subjective)

  • Act as child of like age/experience/education/intelligence
  • NOT 5 year old child (NOT likely to be negligent)

Potentially dangerous adult activity

  • Adult standard
  • E.g. Driving vehicles
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44
Q

What is required for common carriers to exercise particular standard of care?

A

1) Plaintiff is Passenger

2) Slight negligence (very high standard of care)

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45
Q

What is required for innkeepers to exercise particular standard of care?

A

1) Plaintiff is Guest

2) Slight negligence (very high standard of care)

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46
Q

What is required for automobile drivers to exercise particular standard of care?

A

Paying guests
- Ordinary care

Non-paying guests

  • Ordinary care (most states)
  • Recklessness (avoid wilful and wanton misconduct) (few states - Guest statutes)
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47
Q

What is required for bailor/bailee to exercise particular standard of care?

A

Bailee’s duty to Bailor

  • Modern view: Ordinary standard
  • Common law: High standard (sole benefit to Bailee); Low standard (sole benefit to Bailor)

Bailor’s duty to Bailee

  • Must inform known defect (sole benefit to Bailee)
  • Must inform known/should have known defect (mutual benefit)
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48
Q

What is required for Defendant to exercise particular standard of care in emergencies?

A

D created emergency

  • Act as reasonable person would
  • Emergency NOT considered

D did NOT create emergency
- Act as reasonable person would in emergency

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49
Q

(Negligence Per Se) What is the standard of care required for statutory standard of care to replace common law standard of care?

A

Negligence Per Se:

  • Criminal law or regulatory statute imposes particular duty for the protection or benefit of others
  • Defendant violated the statute
  • Plaintiff must be in the class of people intended to be protected by the statute
  • Accident must be the type of harm that the statute was intended to protect against; and
  • Harm was caused by a violation of the statute

=> Negligence per se;

  • Conclusive presumption of duty + breach (must prove causation + damages) (majority view)
  • Rebuttable presumption of duty + breach (minority view)
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50
Q

When may compliance with statute excuse violation?

A

Compliance creates more danger than violation

Compliance is beyond D’s control

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51
Q

When does an owner/occupier of land owe duty to those off his premises?

A

Artificial conditions
- Unreasonably dangerous

Conduct of persons on premises
- Avoid unreasonable risk of harm to others

NOT natural conditions

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52
Q

When does an owner/occupier of land owe duty to those on his premises?

A

Trespassers (NO consent)

1) Discovered/Anticipated (NOT undiscovered/’no trespassing’ signs)
2) Warn/Securitize P of concealed, unsafe artificial condition (NOT natural condition)
3) Owner’s knowledge (includes Easement/License holders)
4) Risk of death/serious bodily harm
5) Reasonable care (active operations)

Attractive nuisance (duty owed to children)

1) Owner knew/should know dangerous condition (artificial/natural)
2) OWNER knew/should know children frequent in vicinity of condition
3) CHILD did NOT know dangerous condition
4) Likely to cause injury
5) Risk magnitude > Remedy expense (even slight cost)

Licensee (entered premises for P’s benefit)

1) Warn/Securitize P of concealed, unsafe artificial + natural condition (NOT discoverable)
2) Owner’s knowledge
3) Risk of death/serious bodily harm
4) Reasonable care (active operations)
- NO duty to repair/inspect known defects

Invitee (entered premises for D’s benefit (customer)/open to public)

1) Warn/Securitize P of concealed, unsafe artificial + natural condition (NOT discoverable)
2) Owner’s knowledge
3) Risk of death/serious bodily harm
4) Reasonable care (active operations)
5) Duty to reasonably inspect defects (even if not obvious)

Users of recreational land (general public)

1) NO fee
2) Dangerous condition/activity
3) Owner’s failure to warn/guard against condition was ‘wilful + malicious’

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53
Q

When does a lessor of land owe duty to those renting his premises?

A

Landlord must:

1) Warn of existing defects
- Lessor owes duty to Tenant + Guest
- Tenant owes duty to Guest

2) Lessor/Tenant knew/should know of defect
3) Lessor/Tenant knows Tenant/Guest will NOT likely discover defect by reasonable inspection

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54
Q

When does a sellor/vendor of land owe duty to those purchasing his premises?

A

1) Disclose existing defects
2) Seller knew/should know of defect
3) Seller knows Buyer will NOT likely discover defect by reasonable inspection

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55
Q

What is required for negligent infliction of emotional distress?

A

1) Negligence
2) Either;

Zone of danger

1) P was within zone of danger
2) P’s physical symptoms

Bystander case

1) P was closely related to TP victim
2) P was present at scene of injury
3) P personally observed/perceived event
4) P’s emotional distress

Special relationship

1) P + D had special relationship (doctor-patient, lawyer-client)
2) D’s negligence had great potential to cause emotional distress

Egregious conduct

1) Mishandling/Erroneous reporting of relative’s corpse/death
2) Emotional distress (NO need for physical harm)

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56
Q

What is required for Defendant to have affirmative duty to act?

A

(Generally NO duty to act)

Assumption of duty by acting

  • D places P in peril => D must undertake to aid P (Reasonable care required)
  • Doctor/Nurse must act with ordinary care (NOT gross care) (Good Samaritan statutes)

Placed in peril
- Innocently/Negligently

Special relationship

  • Parent to protect Child
  • Common carrier/Innkeeper/Shopkeeper to aid or assist patrons
  • Places of accommodation to prevent TP harm to guests

TP harm prevention (parent-child/bailor-bailee)

1) D has ability to control TP’s actions
2) D has authority to control TP’s actions
3) D knew/should know TP could cause harm

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57
Q

What is the difference between negligent and intentional infliction of emotional distress?

A

NIED

  • P’s personal observation
  • Emotional distress
  • Negligence

IIED

  • D’s knowledge of P’s presence + close relation
  • Severe emotional distress
  • Intent/Recklessness
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58
Q

What is required for Defendant to be liable for wrongful life?

A

1) Viable fetus (at time of injury)

2) Parent sues on behalf of Child for;
- Wrongful birth defect

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59
Q

What is the difference between wrongful birth and wrongful life lawsuits?

A

Wrongful birth
- Parent sues D

Wrongful life
- Parent sues D on behalf of child

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60
Q

What is the standard of care for doctors?

A

Average doctor in good standing

  • National standard (some states)
  • State standard (some states)
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61
Q

What is breach?

A

D’s conduct falls short of level required by applicable standard of care owed to P
- Trier of fact

By preponderance of evidence

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62
Q

How may custom/usage determine negligence?

A

Establishes standard of care

NOT establish breach (NOT conclusive)

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63
Q

How may statutory law determine standard of care?

A

1) P is in protected class of persons
2) Particular harm to be avoided
3) Statute provides criminal penalties

=> Negligence per se;

  • Conclusive presumption of duty + breach (must prove causation + damages) (majority view)
  • Rebuttable presumption of duty + breach (minority view)
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64
Q

What is res ipsa loquitor?

A

Very occurrence of event may tend to establish breach of duty

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65
Q

What is required for res ipsa loquitor to determine breach?

A

1) Inference of negligence: P must establish that accident causing his injury is of type that would not normally occur unless someone was negligent

2) Negligence is attributable to D based on ‘lack’ of direct evidence of D’s action causing injury
- Modern law: D is more likely than not to be negligent
- Common law: D had exclusive control of instrument causing P’s injury

3) P’s lack of ‘voluntary’ contribution towards P’s injury

=> Establishes prima facie case => Directed verdict for Plaintiff/Defendant

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66
Q

How may motion for directed verdict on res ipsa loquitor be determined?

A

By Plaintiff

  • Granted: Negligence per se proven (violation of statute) + NO proximate causation issues
  • Denied: Generally

By Defendant

  • Granted: NO res ipsa loquitor proven + NO evidence of breach
  • Denied: Res ipsa loquitor/other evidence of breach shown
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67
Q

What is required for causation?

A

1) Actual causation (causation in fact)
- ‘But for’ test
- ‘Substantial factor’ test
- Alternatives causes approach (Summers v Tice)

2) Proximate causation (legal causation)
- Direct cause (NO interruption in chain of events)
- Indirect cause (Interruption in chain of events; Intervening force comes into motion and combines with D’s act)

3) By preponderance of evidence

=> Conduct was cause of injury

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68
Q

What is the ‘but for’ test?

A

Single cause

  • Act/Omission to act is cause in fact of injury
  • Injury would not have occurred ‘but for’ the act

Joint causes

  • Several acts combine to cause injury BUT none of the act standing alone would have been sufficient
  • Injury would not have occurred ‘but for’ the acts
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69
Q

What is the ‘substantial factor’ test?

A

1) Several acts combine to cause injury
2) Either act standing alone would have been sufficient (substantial factor in causing injury)
3) Liable act is known

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70
Q

What is the alternative causes approach (Summers v Tice)?

A

1) Several acts combine to cause injury
2) Either act standing alone would have been sufficient
3) Liable act is NOT known

4) Each D must prove he is NOT negligent (burden of proof => Defendants)
- Otherwise ALL Ds are liable

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71
Q

What is proximate causation?

A

Defendant is liable for all harmful results;

  • Normal incidents of D’s acts
  • Within increased risk caused by D’s acts
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72
Q

How may Defendant be liable for direct proximate cause?

A

Foreseeable harmful result

  • Even if occurred in unusual timing/manner
  • NO uninterrupted chain of events

NOT unforeseeable harmful result
- NO summary judgment (material fact in dispute - foreseeability)

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73
Q

How may original Defendant be liable for indirect proximate cause?

A

Foreseeable intervening force (D’s act created normal response; almost always foreseeable)

  • Subsequent medical malpractice
  • Negligent rescuer
  • Others’ efforts to protect person/property
  • Others’ reactions
  • Subsequent diseases (D places P in weakened condition => Causes diseases)
  • Subsequent accidents (P’s original injury was substantial factor)
  • NOT unforeseeable result

Independent intervening force (D’s act ‘increased’ risk of harm caused by forces => Foreseeable)

  • TP’s negligent act
  • TP’s crimes/intentional torts
  • Act of God

Unforeseeable intervening force

  • Foreseeable result (courts tend to favour foreseeable result rather than unforeseeable force)
  • NOT TP’s crime/intentional tort
  • NOT unforeseeable result (becomes superseding force that breaks causal connection between D’s act + P’s injury)
74
Q

What is the ‘Eggshell-Skull Plaintiff’ Rule?

A

1) D takes P as he finds him

2) D’s act aggravates P’s existing condition
- Extent/severity/unforeseeability of damages NOT relevant

=> D is liable for ALL damages

75
Q

Are damages presumed in negligence?

A

NO (Plaintiff must prove damages by preponderance of evidence)
- Unlike intentional torts

76
Q

What type of damages can Plaintiff recover from personal injury torts?

A

1) Economic damages (past/present/prospective)
- Medical expenses
- Directly from P’s loss (NOT from TP’s loss)

2) Non-economic damages (past/present/prospective)
- Pain, suffering
- Emotional distress

77
Q

Must damages be foreseeable in personal injury torts?

A

NO

- D takes P as he finds him

78
Q

What type of damages can Defendant recover from property damage torts?

A

If damaged => Reasonable cost of repair

If nearly destroyed => Fair market value (at time of accident)

NOT emotional distress

79
Q

When are punitive damages available?

A

D’s conduct was;

  • Wanton and wilful
  • Reckless
  • Malicious

Generally NOT available

80
Q

What effect does Plaintiff’s benefits received from collateral sources have on recovery of damages?

A

None (Collateral Source Rule)

  • NOT reduce recoverable damages
  • E.g. health insurance, sick pay
81
Q

What duty does Plaintiff have in recovering damages?

A

Mitigate damages

  • Personal injury: Seek appropriate treatment to effect cure + prevent aggravation
  • Property: Preserve + safeguard property
  • OTHERWISE NOT recoverable
82
Q

What type of damages are not recoverable?

A

Interest
- Since date of damage (personal injury)

Attorneys’ fees

Nominal damages

  • Even though no harm done, courts would still award small amount of money
  • But NOT in negligence
83
Q

What is the difference between intentional and negligent torts to person in terms of damages?

A

Intentional torts

  • NO damages required
  • Nominal damages recoverable
  • Punitive damages recoverable (D’s malice)

Negligence

  • Damages required
  • NO nominal damages recoverable
  • NO punitive damages recoverable
84
Q

What is the difference between intentional and negligent trespass over property in terms of damage?

A

Intentional trespass
- NO damage required

Negligent trespass
- Damage required

85
Q

How may plaintiff’s contributory negligence bar plaintiff’s recovery?

A

State does NOT adopt pure comparative negligence

  • Plaintiff’s violation of statute
  • Plaintiff’s contributory negligence as defense to Defendant’s violation of statute
  • Plaintiff’s derivative negligence
  • Plaintiff’s assumption of risk
  • UNLESS Defendant’s intentional tort/wanton and wilful misconduct
86
Q

What is imputed contributory negligence?

A

Courts find P would be vicariously liable for TP’s negligence
- Courts may charge P with TP’s negligence

87
Q

Does imputed contributory negligence bar Plaintiff’s recovery?

A

NO

- Plaintiff can sue BOTH D + TP as joint tortfeasors (to extent that each is legal cause of harm)

88
Q

What are examples of imputed contributory negligence?

A

Employer-Employee

  • Employee acted within scope of employment
  • Employee’s negligence will be imputed to Employer (P)

Partners/Joint venturers

NOT Husband + Wife
- UNLESS derivative contributory negligence (negligent Spouse suing on behalf of other Spouse) => Bars P’s recovery

NOT Parent + Child
- UNLESS derivative contributory negligence (negligent Parent suing on behalf of Child) => Bars P’s recovery

NOT Automobile Owner + Driver

  • UNLESS vicariously liable
  • UNLESS Owner is passenger (ordinary contributory negligence)
89
Q

What is last clear chance?

A

Whoever had last clear chance to avoid accident BUT failed to do so => Liable for negligence
- Even if P was contributorily negligent => If D had last clear chance but failed to take it => D is liable

P’s helpless peril

1) P places himself in actual peril
2) P can NOT extricate himself
3) Either;
- D knew/should have known of P’s predicament => D is liable
- D could NOT have known of P’s predicament => P is liable

P’s inattentive peril

1) P places himself in actual peril
2) P can extricate himself (if attentive)
3) Either;
- D should have known of P’s predicament => Liable
- D could NOT have known of P’s predicament => P is liable

90
Q

What is required for Plaintiff’s assumption of risk to reduce/bar Plaintiff’s recovery?

A

1) Knowledge of risk

2) Voluntarily
- UNLESS NO alternative available to proceeding in face of risk

3) Expressly

3) Impliedly (average person would clearly appreciate risk)
- Sports
- D’s wanton/reckless conduct
- NOT common carriers/public utilities (they can NOT avoid liability)
- NOT statutorily protected classes
- NOT fraud/force/emergency
- NOT D’s intentional torts

91
Q

What is comparative negligence?

A

1) P made contributory negligence

2) Trier of fact weighs P’s negligence => Reduces P’s damages accordingly

92
Q

What is the rule for pure comparative negligence?

A

Court offsets D’s damages vs P’s liability (%) => NOT bar P’s recovery

  • P is liable for 30% => P should recover 70%
  • D is liable for 70% => D should recover 30%
  • Court will offset D’s damages vs P’s liability (D’s liability > P’s liability) => P’s net recovery will be 40% (70% - 30%)
93
Q

What is the rule for partial comparative negligence?

A

Single Defendant

  • If P/D’s liability < 50% => P recovers non-liable amount from D (vice versa)
  • If P/D’s liability > 50% => Bars P/D’s recovery (vice versa)

Multiple Defendants (joint + several liability)

  • P’s recovery is reduced by P’s liability
  • P can recover ALL damages from EITHER defendant (each D is jointly and severally liable to one another)
  • D can also recover from P + other D (if D suffered damages)
  • If P’s liability > 50% => Bars P’s recovery
94
Q

What is the difference between pure and partial comparative negligence?

A

Pure

  • NOT bar P’s recovery
  • Presumed

Partial

  • Bars P’s recovery
  • NOT presumed
95
Q

What defenses can/cannot be used towards comparative negligence?

A

P’s assumption of risk

  • Express
  • Implied (D did NOT breach his limited duty of care to P)
  • D’s wanton/reckless conduct

NOT D’s last clear chance
- D’s last clear chance NOT prevent P’s recovery due to P’s negligence

NOT D’s intentional torts
- D’s intentional torts NOT prevent P’s recovery due to P’s negligence

96
Q

What is the difference between common law and modern law contributory negligence?

A

Common law
- Bars P’s recovery

Modern law
- NOT bar P’s recovery

97
Q

What are Defendants’ liabilities if they are (jointly and) severally liable to each other?

A

Ds acting separately (several liability)
- Divisible injuries: Each D is severally (NOT jointly) liable for OWN identifiable portion

Ds acting separately (joint + several liability)
- Indivisible injuries: Each D is jointly + severally liable for ENTIRE damages

Ds acting by agreement (joint + several liability)
- Divisible/Indivisible injuries: Each D is jointly + severally liable for ENTIRE damages

Comparative negligence rules adopted

98
Q

What is joint and several liability?

A

2 or more negligent tortfeasors combine to proximately cause P’s injury

99
Q

What exceptions prevent joint and several liability?

A

Statutory limitations (many states)

  • If P is more at fault than D => D is only responsible for his own liability portion
  • Non-economic damages are NOT recoverable

Satisfaction

  • P can recover from all tortfeasors until satisfaction
  • P recovers ENTIRE damages from one tortfeasor (satisfaction)
  • P can NOT recover more damages from other tortfeasors

Release

  • P’s claim is surrendered vs one tortfeasor (release)
  • If there is express agreement for discharge => Discharges other tortfeasors => Their liability is reduced by either; (a) agreed amount; or (b) paid consideration (whichever is greater)
  • If there is NO express agreement for discharge => NO discharge
100
Q

How may contribution be imposed?

A

Comparative contribution (most states)

  • Contribution is imposed in proportion to other Ds’ relative fault
  • D can reclaim excess payment from other Ds
Equal shares (few states)
- Contribution is imposed equally among other Ds (relative fault NOT relevant)
101
Q

What exceptions prevent contribution recovery?

A

Applicable defense for tortfeasor (e.g. intra-family tort immunity) => Contribution NOT imposed on tortfeasor

Intentional tortfeasor
- If D1 committed intentional tort => D1 can NOT recover contribution from other Ds

102
Q

What is the difference between contribution and indemnity?

A

Contribution
- If one D pays beyond his individual share of responsbilit, he can recover the overpayment from the other defendants

Indemnity
- Shifts entire loss to one tortfeasor from other (unless D is barred by the wrongful nature of his conduct)

103
Q

What is the procedure for indemnification?

A

1) Non-paying Tortfeasor shifts ENTIRE loss to Paying Tortfeasor
2) Paying tortfeasor pays ENTIRE loss to Plaintiff

3) Paying tortfeasor can recover ENTIRE loss (be indemnified by) Non-paying Tortfeasor
- Relieves Paying Tortfeasor

104
Q

What are examples of indemnification?

A

By agreement (contract)

Vicarious liability

  • Employer for Employee’s torts
  • Landowner for Independent Contractor’s torts

Strict product liability
- Supplier for Manufacturer’s defects

Degree of fault (Party (least at fault) for Party (most at fault))

  • Retailer (who did NOT discover defect) for Manufacturer’s defects
  • Secondary duty party for Primary duty party

Intentional vs Negligent

  • Non paying tortfeasor committed intentional tort
  • Paying tortfeasor committed negligent tort
105
Q

What is the rule for survival of tortious actions?

A

Victim can recover damages incurred between his injury + his death

Victim’s cause of action survives Victim’s own death in;

  • Personal injury cases
  • Property tort cases

Victim’s cause of action does NOT survive Victim’s own death in intangible personal interest cases;

  • Defamation
  • Invasion of right to privacy
  • Malicious prosecution
106
Q

Who may recover for Decedent’s wrongful death?

A

Spouse

Next of kin

NOT Creditor

107
Q

How much can be recovered from Decedent’s wrongful death?

A

1) Pecuniary injury
- Loss of companionship/support
- NOT Decedent’s pain/suffering (separate loss in personal injury suits)

2) To extent Decedent would have recovered if alive
- Reduced by Decedent/Beneficiary’s contributory negligence

108
Q

Who can bring action for loss of consortium and service due to plaintiff’s injuries/death?

A

Spouse for Spouse

Parent for Child
- NOT Child for Parent

109
Q

What type of cases does interference with family apply to?

A

Negligence

Intentional torts

110
Q

What defenses apply to interference with family?

A

1) Spouse 1/Parent sues for injuries to Spouse 2/Child (derivative action)
2) Spouse 1/Parent’s own contributory negligence may reduce/bar Spouse 1/Parent’s recovery

111
Q

When does intra-family immunity apply?

A

Spouse can sue Spouse

Family can NOT sue Family

  • Personal injury
  • NOT Property damage (NO immunity)

Parent/Child can NOT sue Parent/Child

  • Negligent parental supervision (Child can NOT sue Parent)
  • Intentional torts (Parent/Child can sue Parent/Child)
  • Automobile accidents (Parent/Child can sue to extent of insurance coverage)
112
Q

When does governmental tort immunity apply?

A

Federal Government

  • Discretionary acts
  • Battery/Assault/False imprisonment
  • Libel/Slander/Misrep
  • Otherwise immunity waived

State Government + Agencies (schools, hospitals)

  • Discretionary acts
  • Legislative/Judicial decision-making
  • Otherwise immunity waived

Local Government
- Public duty (NO special relationship with private citizen)

Public officials

1) Discretionary acts
2) NO malice/improper purpose

113
Q

What is the difference between discretionary and ministerial acts?

A

Discretionary act
- Planning/Decision-making level

Ministerial act
- Operational level

114
Q

Is there charitable immunity?

A

No

115
Q

What is required for vicarious liability under ‘Respondeat Superior’?

A

1) Master/Servant; Employer/Employee; Principal/Agent relationship

2) Acted within scope of employment
- Minor deviation from Employer’s business in terms of time/geographic area (e.g. running personal errand) (NOT substantial deviation/’DETOUR’/no liability)
- Major deviation (substantial deviation/’FROLIC’/liability)
- Employee’s intentional torts (authorized force/friction generated by debt collector/furthering Employer’s business)

116
Q

Scope of Employment Factors

A

1) The employee was hired to do the kind of work the employee was doing when the employee committed the tort;
2) The tort occurred during the time and space of employment; and,
3) The employee’s conduct was motivated by the desire to serve the employer

117
Q

How can Employer be liable for supervision or selection of Employee?

A

1) Employer’s negligence (NOT vicarious liability)

2) Employee acted within scope of employment

118
Q

What is required for Principal’s vicarious liability for Independent Contractor?

A

(Generally NOT liable)

Inherently or unusually dangerous activities

Occurs in a public space

Affects the public or a large group of people

119
Q

How can Principal be liable for supervision or selection of Contractor?

A

Principal’s negligence (NOT vicarious liability)

120
Q

What is required for Partner/Joint Venturer’s vicarious liability?

A

Act witin scope + course of partnership/joint venture (anything involving sharing expenses)

121
Q

What is required for Automobile Owner’s vicarious liability for Driver’s act?

A

(Generally NOT liable)

Family car doctrine

1) Owner’s consent (express/implied)
2) Driver: Immediate family/household member

Permissive use
- Owner’s consent (express/implied)

OTHERWISE check negligent entrustment

122
Q

How can Automobile Owner be liable for Driver’s act?

A

Negligent entrustment of vehicle (NOT vicarious liability)

1) D was present in car at time of accident
2) D could have prevented negligent driving

123
Q

How can Bailor be liable for Bailee’s act?

A

Negligent entrustment of bailed object (NOT vicarious liability)

124
Q

How can Parent be liable for Child’s act?

A

(Generally NOT liable at common law)

Vicarious liability

  • Child’s intentional/wilful tort (up to certain dollar amount)
  • Child acting as agent for Parent

Negligence

  • Consent towards Child’s act
  • Lack of due care despite knowledge of Child’s tendency to injure others on past occasions
125
Q

How may Tavernkeepers (intoxicating beverage sellers) be liable for Buyer’s/TP’s intoxication?

A

Vicarious liability
- Dramshop Act (NOT common law)

Negligent liability
- Foreseeable risk of serving minor/obviously intoxicated adult (NOT Dramshop Act)

126
Q

What type of torts is joint and several liability imposed towards?

A

Vicarious liability

Negligent entrustment

127
Q

What is the purpose of indemnification?

A

Relief towards paying party

128
Q

What is required for product liability?

A

1) Defect

2) Existed when product left D’s control
- Inferred from product’s movement through normal channels of distribution

2) D’s liability
- Negligence
- Strict tort
- Intent (NOT common)
- Express/Implied warranty
- Misrepresentation of fact

129
Q

What type of defects are there?

A

Manufacturing defect
- Product is different from + more dangerous beyond ordinary customer’s expectation/foreseeable misuse

Design defect

  • Product is in same line with dangerous propensities
  • Feasible alternative approach: Product could be replaced with alternative design if there is either; (a) less dangerous modification; (b) economically feasible alternative

Inadequate warnings (Design defect)

  • Manufacturer failed to give clear warnings about risks ‘NOT apparent’ to users
  • Learned intermediary rule: Warning re prescription drug/medical device NOT given to physician (NO need to be given to patient)
130
Q

What exceptions deny existence of defects?

A

Compliance with government safety standards

  • NOT conclusive evidence of non-defect
  • Fed law NOT preempt State product warning law

Scientifically unknowable risk
- NOT foreseeable danger (at time of marketing)

131
Q

What is required for intent liability?

A

(NOT common)

1) D intended/knew consequences would be substantially certain to occur

2) ANY injured P can sue
- NO privity required

=> Most likely seen as Battery

132
Q

What is required for negligence liability?

A

1) Duty of care
- D must be commercial supplier (manufacturer/wholesaler/retailer/NOT repair)
- P must be foreseeable (user/consumer/bystander) (NO privity required)

2) Breach (D’s negligent conduct led to supplying defective product)
- Manufacturing defect (Manufacturer): Res ipsa loquitor
- Design defect (Manufacturer): D knew/should have known of defect (UNLESS NOT apparent until defect reached public)
- Manufacturing/Design defect (Retailer/Wholesaler): Cursory inspection required only

3) Causation
- If NO Intermediary => Manufacturer is liable (actual + proximate causation)
- If Intermediary failed to discover defect but NOT beyond ordinary foreseeable negligence => Manufacturer is liable (actual causation) + Intermediary is liable (proximate causation)
- If Intermediary failed to discover defect + beyond ordinary foreseeable negligence => Intermediary is liable (actual + proximate causation) (superseding cause)

4) Damages
- Personal injury + Property
- If claim is SOLELY for economic loss (requires repairs/not work as well as expected) => Must bring warranty claim

133
Q

What is required for strict tort liability?

A

1) Commercial supplier
- Manufacturer (of that defective component)/Retailer/Wholesaler
- Lessor
- Seller of used products

2) Produce/Sell defective product
- Dangerous beyond customer’s ordinary expectation
- NOT service (BUT could be liable for negligence)

3) Causation (actual)
- Defect existed when product left D’s control (NOT altered by substantial change)
- Even if defect difficult to trace => P may rely on inference that failure ordinarily ‘would occur’ due to defect
- Presumption that adequate warning would have been read and understood

4) Causation (proximate)
- If NO Intermediary => Manufacturer is liable (actual + proximate causation)
- If Intermediary failed to discover defect but NOT beyond ordinary foreseeable negligence => Manufacturer is liable (actual causation) + Intermediary is liable (proximate causation)
- If Intermediary failed to discover defect + beyond ordinary foreseeable negligence => Intermediary is liable (actual + proximate causation) (superseding cause)

4) Damages
- Economic damages (Personal injury + Property)
- NOT economic damages

134
Q

What is the difference between negligence and strict tort liability?

A

Negligence

  • Fault (failure to discover defect UNLESS no reasonable opportunity to inspect)
  • NO economic loss

Strict tort

  • NO fault (NO failure to discover defect, no reasonable opportunity to inspect NOT relevant)
  • NO economic loss
135
Q

What defenses can prevent intentional/negligence/strict tort liability/misrepresentation of fact?

A

Contributory negligence

  • NOT P’s mere failure to discover/guard vs defect
  • NOT P’s reasonably foreseeable misuse
  • NOT intentional torts

Comparative negligence

Assumption of risk

136
Q

What is required for breach of implied warranty (UCC)?

A

1) Product
- Sale of goods
- Leases

2) Plaintiffs
- Horizontal privity required (Buyer’s family/household/guests)
- NO vertical privity required (Buyer can sue Manufacturer)

3) Breach of implied warranty (NO fault required)
- Product failed to live up to standards imposed by implied warranty
- NOT merchantable ((1) Goods are NOT of average acceptable quality + (2) Goods are generally NOT fit for ordinary purpose)
- NOT fitness for particular purpose ((1) S knew/should have known goods’ particular purpose + (2) S knew/should have known B’s reliance on Seller’s judgment or skill in selecting goods)

4) Causation (actual + proximate)

5) Damages
- Personal + property
- Economic (unlike strict tort/negligence)

137
Q

What is the difference between express and implied warranties?

A

Express warranty

  • Seller makes affirmation of fact/promise (warranty) to Buyer relating to goods; that warranty become part of ‘basis of the bargain’
  • NO horizontal/vertical privity required (BUT someone must have relied on Seller’s representation so that it became ‘basis of the bargain’)

Implied warranty

  • Seller implies warranties that goods are merchantable of fit for its particular purpose
  • Horizontal privity required (NOT vertical privity)
138
Q

What is required for breach of express warranty (UCC)?

A

1) Product
- Sale of goods
- Leases

2) Plaintiffs
- NO horizontal/vertical privity required (BUT original Buyer must have ‘relied’ on Seller’s representation so that it became ‘basis of bargain’ => Remote person can sue, even w/o knowledge of representation)

3) Breach of express warranty (NO fault required)
- Product failed to live up to standards imposed by express warranty

4) Causation (actual + proximate)

5) Damages
- Personal + property
- Economic (unlike strict tort/negligence)

139
Q

What defenses can prevent breach of warranty?

A

Contributory negligence

Assumption of risk

Failure to give notice of breach within reasonable time (UCC)

Disclaimer

  • Express warranties (disclaimer to be read consistently with warranties => disclaimer almost impossible)
  • Implied warranties (economic damages only)
140
Q

What is required for misrepresentation of fact?

A

1) Statement of material fact
- Regarding goods’ quality/usage
- NOT mere puffery

2) Seller’s state of mind
- Strict liability: False statement (NO fault)
- Negligence: Negligent re false statement
- Intentional: Knowledge/Reckless re false statement

3) Seller’s intent to induce Buyer’s reliance in particular transaction

4) Buyer’s reliance
- Actual (even substantial reliance is justifiable)
- Proximate

5) Plaintiffs
- NO horizontal/vertical privity required (BUT original Buyer must have ‘relied’ on Seller’s representation so that it became ‘basis of bargain’ => Remote person can sue, even w/o knowledge of representation)

6) Causation (Actual + Proximate)

141
Q

How can multiple suppliers (not identifiable) be found liable?

A

Negligence

  • Alternative causes approach (Summers v Tice)
  • Burden of proof => Each supplier to prove they are not liable

NOT strict tort

142
Q

How can the defendant prevent himself from being ultimately liable?

A

Claim indemnity from supplier above supply chain

143
Q

What is required for prima facie case for strict liability?

A

1) ‘Absolute’ duty imposed on D to make safe
- Based on nature of D’s activity
- NOT duty to exercise reasonable care (negligence)

2) Actual + Proximate causation
- Dangerous aspect of D’s activity => Created P’s injury

3) Damages
- Personal/Property
- NOT economic damages

4) Foreseeable Plaintiff

144
Q

What is required for liability due to Defendant’s animals towards licensees/invitees/landowners (trespassed by D’s animals)?

A

Wild animals (bears, foxes)

  • Even if kept as pets
  • UNLESS public zoos (must show Owner’s negligence)

Domestic animals (farm animals - bulls)

1) Animal has dangerous propensities (NOT common to such persons)
2) D has knowledge of propensities

145
Q

What is required for liability due to Defendant’s animals towards trespassers?

A

Owner’s negligence

1) Discovered trespasser
2) Owner failed to warn of animal

Owner’s intentional tort
- Vicious watchdogs that cause ‘serious’ bodily harm

146
Q

What is required for liability due to abnormally dangerous activities?

A

(Rylands v Fletcher)

1) Operator
- NOT constructor

2) Creates foreseeable risk of serious harm
- Even if reasonable care exercised

3) NOT matter of common usage in community

147
Q

What are examples of abnormally dangerous activities?

A

Blasting

Manufacturing explosives

Crop dusting

Fumigating

Product liability

Nuclear plants

Mining

Toxic waste transportation

148
Q

What defenses can prevent strict liability?

A

Contributory negligence

  • P’s knowledge of danger + unreasonable conduct causing harm to P
  • NOT P’s failure to realise/guard vs defect

Assumption of risk

Comparative negligence

149
Q

What are wild animals?

A

Matter of common knowledge => Naturally;

  • Ferocious
  • Unpredictable
  • Dangerous
  • Mischievous
  • Not by custom devoted to the service of mankind where they are kept
150
Q

Is nuisance a separate tort?

A

NO (type of harm)

1) Invasion of;
- Private property
- Public rights

2) Liability;
- Negligent
- Intentional
- Strict

151
Q

What is required for public nuisance?

A

1) Unreasonable interference

2) Either;
- Government: Community’s health/safety/property rights
- Individual: Unique damage (NOT suffered by public at large)

152
Q

What is required for private nuisance?

A

1) Substantial interference
- Offensive/Inconvenient/Annoying to ‘average’ person in community
- NOT P’s hypersensitivity/specialised use of his land

2) Unreasonable interference
- Severity of injury > Utility of D’s conduct
- D’s conduct’s reasonableness based on neighbourhood/land values/alternative conduct open to D

3) P’s use/enjoyment of land
- Actual possession (Tenant)
- Immediate right to possession of land

153
Q

What is the difference between private nuisance and trespass to land?

A

Private nuisance

  • Use/Enjoyment (Tenant)
  • Intangible invasion

Trespass to land

  • Exclusive possession (Landlord)
  • Tangible invasion
154
Q

What is the difference between public and private nuisance?

A

Public nuisance

  • NOT substantial interference
  • Community’s rights
  • Unique damage

Private nuisance

  • Substantial interference (to average citizen)
  • Tenant’s rights
  • NOT unique damage
155
Q

What remedies are available?

A

Damages (legal remedy)

Injunctive relief

  • Damages NOT available/adequate (irreparable injury)
  • Must balance hardships in granting/denying relief (UNLESS D’s conduct was wilful)

Abatement by self-help (Public nuisance)

  • By public authority
  • By private citizen (unique damages suffered)

Abatement by self-help (Private nuisance)

1) P’s notice to D (enter D’s land)
2) D refuses to stop
3) P can use necessary force (NOT deadly)

156
Q

What defenses are available?

A

Conduct of others (concurrent)

Contributory negligence

  • ONLY vs negligent trespass
  • NOT vs strict liability/intentional trespass

‘Coming to the nuisance’

  • P purchased land next to already existing nuisance
  • P intentionally moved next to nuisance for purpose of harassing a lawsuit (bad faith)

NOT legislative authority (zoning ordinance)
- NOT conclusive defense (persuasive)

157
Q

What is required for a prima facie case for defamation in common law?

A

Common law

1) Defamatory language
- NO falsity need to proven

2) Of/Concerning P
3) Publication
4) Damages P’s reputation
5) Falsity

Constitutional law
6) Matter of public concern

7) Fault re truth of statement

158
Q

What are examples of defamatory language?

A

(Adversely affecting one’s reputation, honesty, integrity, etc)

Inducement/Innuendo

  • Defamatory ‘on its face’
  • Defamatory apparent by adding extrinsic facts during court

Direct/Indirect remarks
- Pictures/Satire/Drama

Statement of opinion

1) Based on specific facts
2) Express allegation of those facts would be defamatory

159
Q

What are examples of defamatory statements of/concerning Plaintiff?

A

(Reasonable reader/listener would understand as referred to P)

Colloquium

  • Statement NOT clearly defamatory towards P
  • P can introduce extrinsic facts to prove it was defamatory

Groups

  • Small groups (Reference to ALL or some (based on reasonable reader’s view))
  • NOT large groups*
160
Q

What is required for publication?

A

1) Intent to publish statement
- NO intent to defame required

2) To TPs
- TP standing in front of D at the time of making statement to P

3) TP understood as defamatory

4) By publisher
- Single publication (various copies)
- Separate publications (different publishers)
- Primary publisher/Republisher (NOT internet)
- Secondary publisher (knew/should have known of defamatory content) (selling papers/tapes)

161
Q

What is required for damage to P’s reputation?

A

1) Plaintiff must be;
- Alive (NOT dead)
- Business

2) Either;
- Libel (written, radio/TV programmes, oral repetition of libel, written repetition of slander) (General damages)
- Slander per se (business conduct/loathsome disease/mortal turpitude crime/chastity) (General damages)
- Slander NOT per se (Special damages)

162
Q

What are the types of damages in common law defamation?

A

General damages

  • General injury to P’s reputation
  • Presumed by law (NO need to proven)

Special damages

  • Pecuniary loss (loss of job/business, NOT humiliation/loss of friends)
  • NOT presumed by law (Must prove)
163
Q

What factors determine a matter of public concern?

A

Content

Form

Context of publication

164
Q

What happens if the statement is not false?

A

1) Private Plaintiff

2) Sue for either;
- IIED
- Invasion of right to privacy

165
Q

What is required for fault over determining truth of statement?

A

Public plaintiff

  • Achieves pervasive fame/voluntarily assumes public controversial role
  • Malice (Knowledge/Recklessness) (NOT intent) (subjective) (New York Times v Sullivan)

Private plaintiff
- Negligence

NOT strict liability (NO fault)

166
Q

What is required to prove damages in constitutional law defamation under First Amendment?

A

Actual injury (NOT presumed) (negligence)

  • Reputation damage
  • Humiliation
  • Mental anguish/suffering

State presumed/Punitive damages (NOT presumed) (malice)
- Only public matter

167
Q

What defenses are available?

A

P’s death

Consent

1) Valid consent (capacity)
- Express (NO known mistake by D/NO fraudulent inducement/NO immediate duress)
- Implied (Custom/Law)
2) Not exceed scope of consent
- Not to do something substantially different

Truth
- (Otherwise sue for IIED/Invasion of privacy)

Absolute privilege

  • Broadcasts (compelled)
  • Judicial proceedings
  • Legislative proceedings
  • Executive proceedings (regarding executive matters)
  • Spousal communications

Qualified privilege (Burden of proof: Defendant)

  • Official proceeding reports (judicial/legislative/executive)
  • Social purpose/Statements in Publisher or Recipient’s interests (job recommendations)
  • UNLESS not within scope of privilege => Privilege lost
  • UNLESS malice => Privilege lost
168
Q

What is the difference in damages between common law and constitutional law defamation?

A

Common law

  • General damages presumed
  • Special damages NOT presumed (slander NOT per se)

Constitutional law
- General damages NOT presumed (negligence)

169
Q

What are not examples of defamatory language?

A

Exaggerations
- NOT reasonably believable

Pure opinions

  • NOT proveable as true/false
  • UNLESS speaker implies knowledge of facts
170
Q

What is required for appropriation of Plaintiff’s picture/name?

A

1) NO consent

2) D’s commercial advantage
- Adverts/Promotion of products/services
- NOT own profit

171
Q

What is required for intrusion on Plaintiff’s affairs/seclusion?

A

1) Prying/Intruding
2) ‘Highly’ offensive to reasonable person
3) Private affairs

172
Q

What is required for publication of Plaintiff’s facts in false light?

A

1) Facts re P
- NOT opinion

2) False light
- Falsely stating P’s actions/views

3) ‘Highly’ offensive to reasonable person
4) (Malice - Matter of public interest only)

173
Q

What is required for disclosure of Plaintiff’s facts?

A

1) P’s private facts

2) ‘Highly’ offensive to reasonable person

174
Q

What is required for prima facie case for invasion of right to privacy?

A

1) Invasion

2) Liability
- Intent
- Negligence
- Strict liability

3) Causation
- Proximate

4) Damages
- Distress/Anguish (NOT presumed)
- Special damages (pecuniary) (presumed)

175
Q

What defenses are there against invasion of right of privacy?

A

Consent

1) Valid consent (capacity)
- Express (NO known mistake by D/NO fraudulent inducement/NO immediate duress)
- Implied (Custom/Law)
2) Not exceed scope of consent
- Not to do something substantially different

Absolute privilege => Publication/Disclosure ONLY

  • Broadcasts (compelled)
  • Judicial proceedings
  • Legislative proceedings
  • Executive proceedings (regarding executive matters)
  • Spousal communications

Qualified privilege (Burden of proof: Defendant) => Publication/Disclosure ONLY

  • Official proceeding reports (judicial/legislative/executive)
  • Publications to one acting in public interest
  • UNLESS not within scope of privilege => Privilege lost
  • UNLESS malice => Privilege lost

Right of privacy NOT extendable to;

  • Family
  • After P’s death
  • Corporations
  • By assignment
176
Q

What is required for intentional misrepresentation/fraud/deceit?

A

1) Misrepresentation
- Material past/present fact
- Opinion (D has superior knowledge, P has NO superior knowledge)
- Failed duty to disclose (fiduciary relationship/real property sale + D knew P could not reasonably discover material info/deceived by utterance)

2) Scienter
- D knew/recklessly disregarded falsity of statement
- OTHERWISE negligent misrep

3) Intent to induce P to act/refrain from acting

4) Causation (Actual reliance)
- By Plaintiff
- By TP (D could reasonably foresee TP’s reliance)

5) ‘Justifiable’ reliance

6) Damages
- Pecuniary loss

177
Q

What is required for negligent misrepresentation?

A

1) Misrepresentation
- Business/Professional capacity (NOT general)

2) Breach of duty
- Particular P
- NOT TP (unlike intentional misrep)

3) Causation (Actual reliance)
4) ‘Justifiable’ reliance

5) Damages
- Pecuniary loss

178
Q

Are defenses applicable to misrepresentation?

A

No

179
Q

What is required for prima facie case of interference with business relations?

A

1) Either;
- Valid contractual relationship (P + TP)
- Valid business expectancy of P

2) D’s knowledge of P’s relationship/expectancy
3) D’s intentional interference => Induces breach/termination of relationship/expectancy

4) Damages
- Actual
- Mental distress
- Punitive

180
Q

When is interference with business relations privileged?

A

D’s proper attempt to;

  • Obtain business for D
  • Protect D’s interests

Commercially acceptable means of persuasion
- NOT illegal/threatening

Competing with P’s same prospective buyers

D’s relationship with TP

  • Financial interest in TP
  • TP sought business advice from D

2024 DC Bar Exam - UBE (8 decks)

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