TORTS Flashcards
What is required for a prima facie case for intentional tort liability?
(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)
What is the rule for transferred intent?
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
What is required for battery?
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
What is the difference between intentional torts to person and negligence in terms of damages?
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
What is the difference between intentional torts to the person and IIED?
Battery/Assault/False imprisonment
- Intent required
- Nominal damages
- Punitive damages
IIED
- Intent/Recklessness required
- Actual damages (for severe emotional distress)
What is required for assault?
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
What is required for false imprisonment?
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
Does the length of time of false imprisonment matter?
No
Must Plaintiff resist physical force used in false imprisonment?
No
What is required for intentional infliction of emotional distress?
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
What are examples of extreme and outrageous conduct?
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
What is required for Bystander IIED?
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
What is the difference between negligent and intentional infliction of emotional distress?
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
What is required for trespass to land?
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)
What is the difference between the intentional torts to property?
Trespass to land
- NO damage required
Trespass to chattel/Conversion
- Damage required
What is the difference between intentional and negligent trespass over property in terms of damage?
Intentional trespass
- NO damage required
Negligent trespass
- Damage required
What is required for trespass to chattel?
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)
What remedies are available for trespass to chattel?
Direct damage/Loss of use
- Actual damages
Dispossession
- Damages (rental value)
What is required for conversion?
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)
What remedies are available for conversion?
Damages
- Fair market value (at time of conversion)
Replevin
- Return of chattel
What is the difference between trespass to chattel and conversion?
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
What is required for consent?
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)
What is required for self-defense?
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)
What is required for defense of others?
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
What is required for defense of property?
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
What is required for re-entry onto land?
Ejectment (modern view) => Recover possession of land
- NOT self-help (common law) => Rejected
What is required for recapture of chattels?
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
What is required for shoplifting detention/privilege to detain shoplifters?
1) Reasonable belief as to theft
2) Reasonable manner
- Non-deadly force
3) Reasonable period of time
4) Investigative purposes
- OTHERWISE false imprisonment
What is required for privilege of arrest?
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)
What is required for necessity?
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)
What is required for discipline?
1) Reasonable force
2) By Parent/Teacher
3) On Children
- Age + sex
- Seriousness of their behaviour
What is the difference between private nuisance and trespass to land?
Private nuisance
- Possession (Tenant)
Trespass to land
- Ownership (Landlord)
Can landowner use force if trespasser enters land by necessity?
NO
- Trespasser’s privilege (Necessity) > Landowner’s defense of property
When may defendant be liable for damages caused by necessity?
Qualified privilege (liability) - Protecting D (himself)
NOT absolute privilege (NO liability)
- Protecting P (landowner)
Are children/mentally incompetent persons liable for intentional torts?
Yes
- Knowledge of harmful result required
What is the duty of care?
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
What is required for Defendant to be liable for injuries to rescuers?
1) D negligently placed P/TP in peril
2) P was injured in attempting a rescue
- NOT reckless rescue
=> P is foreseeable plaintiff
Does Defendant owe duty to police officers/firefighters?
Unlikely (Firefighters’ rule)
- Public policy
- Assumption of risk
What is required for Defendant to be liable for wrongful birth?
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)
What is the applicable basic standard of care?
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)
What is required for professionals to exercise particular standard of care?
1) Must use superior judgment/skill/knowledge as he actually possesses
2) In good standing in similar community
- National standard
When are doctors liable for failure to disclose risks of treatment?
1) Serious risk
2) If disclosure was made => Reasonable person would have withheld consent to treatment
What is required for children to exercise particular standard of care?
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
What is required for common carriers to exercise particular standard of care?
1) Plaintiff is Passenger
2) Slight negligence (very high standard of care)
What is required for innkeepers to exercise particular standard of care?
1) Plaintiff is Guest
2) Slight negligence (very high standard of care)
What is required for automobile drivers to exercise particular standard of care?
Paying guests
- Ordinary care
Non-paying guests
- Ordinary care (most states)
- Recklessness (avoid wilful and wanton misconduct) (few states - Guest statutes)
What is required for bailor/bailee to exercise particular standard of care?
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)
What is required for Defendant to exercise particular standard of care in emergencies?
D created emergency
- Act as reasonable person would
- Emergency NOT considered
D did NOT create emergency
- Act as reasonable person would in emergency
(Negligence Per Se) What is the standard of care required for statutory standard of care to replace common law standard of care?
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)
When may compliance with statute excuse violation?
Compliance creates more danger than violation
Compliance is beyond D’s control
When does an owner/occupier of land owe duty to those off his premises?
Artificial conditions
- Unreasonably dangerous
Conduct of persons on premises
- Avoid unreasonable risk of harm to others
NOT natural conditions
When does an owner/occupier of land owe duty to those on his premises?
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’
When does a lessor of land owe duty to those renting his premises?
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
When does a sellor/vendor of land owe duty to those purchasing his premises?
1) Disclose existing defects
2) Seller knew/should know of defect
3) Seller knows Buyer will NOT likely discover defect by reasonable inspection
What is required for negligent infliction of emotional distress?
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)
What is required for Defendant to have affirmative duty to act?
(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
What is the difference between negligent and intentional infliction of emotional distress?
NIED
- P’s personal observation
- Emotional distress
- Negligence
IIED
- D’s knowledge of P’s presence + close relation
- Severe emotional distress
- Intent/Recklessness
What is required for Defendant to be liable for wrongful life?
1) Viable fetus (at time of injury)
2) Parent sues on behalf of Child for;
- Wrongful birth defect
What is the difference between wrongful birth and wrongful life lawsuits?
Wrongful birth
- Parent sues D
Wrongful life
- Parent sues D on behalf of child
What is the standard of care for doctors?
Average doctor in good standing
- National standard (some states)
- State standard (some states)
What is breach?
D’s conduct falls short of level required by applicable standard of care owed to P
- Trier of fact
By preponderance of evidence
How may custom/usage determine negligence?
Establishes standard of care
NOT establish breach (NOT conclusive)
How may statutory law determine standard of care?
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)
What is res ipsa loquitor?
Very occurrence of event may tend to establish breach of duty
What is required for res ipsa loquitor to determine breach?
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
How may motion for directed verdict on res ipsa loquitor be determined?
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
What is required for causation?
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
What is the ‘but for’ test?
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
What is the ‘substantial factor’ test?
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
What is the alternative causes approach (Summers v Tice)?
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
What is proximate causation?
Defendant is liable for all harmful results;
- Normal incidents of D’s acts
- Within increased risk caused by D’s acts
How may Defendant be liable for direct proximate cause?
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)
How may original Defendant be liable for indirect proximate cause?
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)
What is the ‘Eggshell-Skull Plaintiff’ Rule?
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
Are damages presumed in negligence?
NO (Plaintiff must prove damages by preponderance of evidence)
- Unlike intentional torts
What type of damages can Plaintiff recover from personal injury torts?
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
Must damages be foreseeable in personal injury torts?
NO
- D takes P as he finds him
What type of damages can Defendant recover from property damage torts?
If damaged => Reasonable cost of repair
If nearly destroyed => Fair market value (at time of accident)
NOT emotional distress
When are punitive damages available?
D’s conduct was;
- Wanton and wilful
- Reckless
- Malicious
Generally NOT available
What effect does Plaintiff’s benefits received from collateral sources have on recovery of damages?
None (Collateral Source Rule)
- NOT reduce recoverable damages
- E.g. health insurance, sick pay
What duty does Plaintiff have in recovering damages?
Mitigate damages
- Personal injury: Seek appropriate treatment to effect cure + prevent aggravation
- Property: Preserve + safeguard property
- OTHERWISE NOT recoverable
What type of damages are not recoverable?
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
What is the difference between intentional and negligent torts to person in terms of damages?
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
What is the difference between intentional and negligent trespass over property in terms of damage?
Intentional trespass
- NO damage required
Negligent trespass
- Damage required
How may plaintiff’s contributory negligence bar plaintiff’s recovery?
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
What is imputed contributory negligence?
Courts find P would be vicariously liable for TP’s negligence
- Courts may charge P with TP’s negligence
Does imputed contributory negligence bar Plaintiff’s recovery?
NO
- Plaintiff can sue BOTH D + TP as joint tortfeasors (to extent that each is legal cause of harm)
What are examples of imputed contributory negligence?
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)
What is last clear chance?
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
What is required for Plaintiff’s assumption of risk to reduce/bar Plaintiff’s recovery?
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
What is comparative negligence?
1) P made contributory negligence
2) Trier of fact weighs P’s negligence => Reduces P’s damages accordingly
What is the rule for pure comparative negligence?
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%)
What is the rule for partial comparative negligence?
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
What is the difference between pure and partial comparative negligence?
Pure
- NOT bar P’s recovery
- Presumed
Partial
- Bars P’s recovery
- NOT presumed
What defenses can/cannot be used towards comparative negligence?
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
What is the difference between common law and modern law contributory negligence?
Common law
- Bars P’s recovery
Modern law
- NOT bar P’s recovery
What are Defendants’ liabilities if they are (jointly and) severally liable to each other?
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
What is joint and several liability?
2 or more negligent tortfeasors combine to proximately cause P’s injury
What exceptions prevent joint and several liability?
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
How may contribution be imposed?
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)
What exceptions prevent contribution recovery?
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
What is the difference between contribution and indemnity?
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)
What is the procedure for indemnification?
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
What are examples of indemnification?
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
What is the rule for survival of tortious actions?
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
Who may recover for Decedent’s wrongful death?
Spouse
Next of kin
NOT Creditor
How much can be recovered from Decedent’s wrongful death?
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
Who can bring action for loss of consortium and service due to plaintiff’s injuries/death?
Spouse for Spouse
Parent for Child
- NOT Child for Parent
What type of cases does interference with family apply to?
Negligence
Intentional torts
What defenses apply to interference with family?
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
When does intra-family immunity apply?
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)
When does governmental tort immunity apply?
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
What is the difference between discretionary and ministerial acts?
Discretionary act
- Planning/Decision-making level
Ministerial act
- Operational level
Is there charitable immunity?
No
What is required for vicarious liability under ‘Respondeat Superior’?
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)
Scope of Employment Factors
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
How can Employer be liable for supervision or selection of Employee?
1) Employer’s negligence (NOT vicarious liability)
2) Employee acted within scope of employment
What is required for Principal’s vicarious liability for Independent Contractor?
(Generally NOT liable)
Inherently or unusually dangerous activities
Occurs in a public space
Affects the public or a large group of people
How can Principal be liable for supervision or selection of Contractor?
Principal’s negligence (NOT vicarious liability)
What is required for Partner/Joint Venturer’s vicarious liability?
Act witin scope + course of partnership/joint venture (anything involving sharing expenses)
What is required for Automobile Owner’s vicarious liability for Driver’s act?
(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
How can Automobile Owner be liable for Driver’s act?
Negligent entrustment of vehicle (NOT vicarious liability)
1) D was present in car at time of accident
2) D could have prevented negligent driving
How can Bailor be liable for Bailee’s act?
Negligent entrustment of bailed object (NOT vicarious liability)
How can Parent be liable for Child’s act?
(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
How may Tavernkeepers (intoxicating beverage sellers) be liable for Buyer’s/TP’s intoxication?
Vicarious liability
- Dramshop Act (NOT common law)
Negligent liability
- Foreseeable risk of serving minor/obviously intoxicated adult (NOT Dramshop Act)
What type of torts is joint and several liability imposed towards?
Vicarious liability
Negligent entrustment
What is the purpose of indemnification?
Relief towards paying party
What is required for product liability?
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
What type of defects are there?
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)
What exceptions deny existence of defects?
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)
What is required for intent liability?
(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
What is required for negligence liability?
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
What is required for strict tort liability?
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
What is the difference between negligence and strict tort liability?
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
What defenses can prevent intentional/negligence/strict tort liability/misrepresentation of fact?
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
What is required for breach of implied warranty (UCC)?
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)
What is the difference between express and implied warranties?
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)
What is required for breach of express warranty (UCC)?
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)
What defenses can prevent breach of warranty?
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)
What is required for misrepresentation of fact?
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)
How can multiple suppliers (not identifiable) be found liable?
Negligence
- Alternative causes approach (Summers v Tice)
- Burden of proof => Each supplier to prove they are not liable
NOT strict tort
How can the defendant prevent himself from being ultimately liable?
Claim indemnity from supplier above supply chain
What is required for prima facie case for strict liability?
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
What is required for liability due to Defendant’s animals towards licensees/invitees/landowners (trespassed by D’s animals)?
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
What is required for liability due to Defendant’s animals towards trespassers?
Owner’s negligence
1) Discovered trespasser
2) Owner failed to warn of animal
Owner’s intentional tort
- Vicious watchdogs that cause ‘serious’ bodily harm
What is required for liability due to abnormally dangerous activities?
(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
What are examples of abnormally dangerous activities?
Blasting
Manufacturing explosives
Crop dusting
Fumigating
Product liability
Nuclear plants
Mining
Toxic waste transportation
What defenses can prevent strict liability?
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
What are wild animals?
Matter of common knowledge => Naturally;
- Ferocious
- Unpredictable
- Dangerous
- Mischievous
- Not by custom devoted to the service of mankind where they are kept
Is nuisance a separate tort?
NO (type of harm)
1) Invasion of;
- Private property
- Public rights
2) Liability;
- Negligent
- Intentional
- Strict
What is required for public nuisance?
1) Unreasonable interference
2) Either;
- Government: Community’s health/safety/property rights
- Individual: Unique damage (NOT suffered by public at large)
What is required for private nuisance?
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
What is the difference between private nuisance and trespass to land?
Private nuisance
- Use/Enjoyment (Tenant)
- Intangible invasion
Trespass to land
- Exclusive possession (Landlord)
- Tangible invasion
What is the difference between public and private nuisance?
Public nuisance
- NOT substantial interference
- Community’s rights
- Unique damage
Private nuisance
- Substantial interference (to average citizen)
- Tenant’s rights
- NOT unique damage
What remedies are available?
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)
What defenses are available?
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)
What is required for a prima facie case for defamation in common law?
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
What are examples of defamatory language?
(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
What are examples of defamatory statements of/concerning Plaintiff?
(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*
What is required for publication?
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)
What is required for damage to P’s reputation?
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)
What are the types of damages in common law defamation?
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)
What factors determine a matter of public concern?
Content
Form
Context of publication
What happens if the statement is not false?
1) Private Plaintiff
2) Sue for either;
- IIED
- Invasion of right to privacy
What is required for fault over determining truth of statement?
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)
What is required to prove damages in constitutional law defamation under First Amendment?
Actual injury (NOT presumed) (negligence)
- Reputation damage
- Humiliation
- Mental anguish/suffering
State presumed/Punitive damages (NOT presumed) (malice)
- Only public matter
What defenses are available?
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
What is the difference in damages between common law and constitutional law defamation?
Common law
- General damages presumed
- Special damages NOT presumed (slander NOT per se)
Constitutional law
- General damages NOT presumed (negligence)
What are not examples of defamatory language?
Exaggerations
- NOT reasonably believable
Pure opinions
- NOT proveable as true/false
- UNLESS speaker implies knowledge of facts
What is required for appropriation of Plaintiff’s picture/name?
1) NO consent
2) D’s commercial advantage
- Adverts/Promotion of products/services
- NOT own profit
What is required for intrusion on Plaintiff’s affairs/seclusion?
1) Prying/Intruding
2) ‘Highly’ offensive to reasonable person
3) Private affairs
What is required for publication of Plaintiff’s facts in false light?
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)
What is required for disclosure of Plaintiff’s facts?
1) P’s private facts
2) ‘Highly’ offensive to reasonable person
What is required for prima facie case for invasion of right to privacy?
1) Invasion
2) Liability
- Intent
- Negligence
- Strict liability
3) Causation
- Proximate
4) Damages
- Distress/Anguish (NOT presumed)
- Special damages (pecuniary) (presumed)
What defenses are there against invasion of right of privacy?
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
What is required for intentional misrepresentation/fraud/deceit?
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
What is required for negligent misrepresentation?
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
Are defenses applicable to misrepresentation?
No
What is required for prima facie case of interference with business relations?
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
When is interference with business relations privileged?
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
