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Torts Flashcards

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1
Q

Intent

A

(a) purpose, or (b) knowledge

Purpose = conscious objective to perform act or cause result

knowledge = substantial certainty result will occur

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2
Q

Battery

A

(1) intentional, (2) harmful, or offensive (3) physical contact

harmful = impairs physical condition or causes pain or illness

offensive = offend reasonable person

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3
Q

Assault

A

(1) physical act, (2) intentionally, (3) place victim in reasonable apprehension of (4) imminent battery

  • words alone don’t count, but do count towards reasonable apprehension piece
  • D need not be able to actually carry it out, so long as P reasonably believes D can and will carry out battery
  • no fear necessary
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4
Q

false imprisonment

A

(1) intentionally, (2) confine victim to bounded area, (3) victim knows of confinement or is harmed by it (4) victim doesn’t have reasonable means of escape or should be aware of reasonable means of escape

  • confine can be (a) physical, (b) threat, (c) duress, (d) humiliation
  • escape isn’t reasonable if it would place P in unreasonable danger
  • Defense: D can “citizen arrest” P if (1) felony, (2) D committed it, OR (1) misdemeanor, (2) breach of peace
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5
Q

Intentional infliction of emotional distress

A

(1) extreme and outrageous conduct, (2) intentionally or recklessly, (3) causes, (4) victim to suffer severe emotional distress (5) (some jx: physical symptoms)

  • extreme and outrageous = civilizes society would regard it as intolerable
  • recklessness = consciously disregard substantial and unjustifiable risk conduct will cause victim to suffer severe emotional distress
  • severe = reasonable ordinary firm person could not endure it

BYSTANDER CLAIMS:
- FAMILY MEMBER: (1) V suffers severe emotion distress by seeing 3rd party injured, (2) close family relationship, (3) V present at scene, (4) V sees injury as it occurs, (5) (some jx: 3rd party suffered severe bodily injury/death)
- ZONE OF FORESEEABLE DANGER (1) V suffers severe emotional distress by seeing 3rd party injures, (2) they were themselves within the zone of foreseeable danger
- (NOTE: If D has affirmative defense against 3rd party they injured, then V’s claim is also defeated)

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6
Q

Defenses to intentional torts: Self-defense, defense of others, necessity

A

Defense of self/others: (1) proportionately, (2) physically defend self/other, (3) subjectively believe, (4) objectively reasonably believe, (5) imminent, (6) unlawful force/confinement
- even if mistaken OK if elements met
- deadly force: (some jx: only if no reasonable escape) (BUT: no duty to retreat if in dwelling)
- Initial aggressor can defend if (a) non-deadly force met with deadly, (b) initial aggression has ended, can defend yourself later

public necessity: (1) reasonably believe, (2) serious, (3) imminent, (4) public harm
- TOTAL defense
- tort must be for good of entire public at large, not small segment of public
- proportionate: liable for anything exceeding the damage needed to prevent the public harm

private necessity: (1) reasonably believe, (2) serious, (3) private harm
- PARTIAL defense (not liable for nominal/punitive damages, but must compensate for damage to V’s property)

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7
Q

Defenses to intentional torts/defamation/privacy torts: Consent

A

Consent in fact (Subjective willingness): (1) informed, (2) voluntary, (3) legal capacity
- Capacity: (a) not minor, (b) not mentally deficient
- Mistake destroys consent: (1) V’s mistake, (2) D aware mistake, (3) mistake relates to nature of the experience
- Doesn’t need to be consent directed at actor

Apparent consent: (1) reasonable person, (2) interpret conduct as consent

Consent implied by law: (1) emergency, (2) V can’t give consent, (3) no reason to believe V would decline

(NOTE:
- scope of consent: can only do as much as consent allows, anything further still liable)
- effect of consent: consent flows to all harm down the line resulting from consent, even if unforeseeable (ie consent to punch friend, actually kills them due to unknown defect, complete defense still)

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8
Q

Transferred intent

A

If D intends to commit a tort against one person but accidentally commits same or different tort on someone them or someone else, intent transfers to the unintended victim or tort

  • Ex: D attempts to commit battery on P, misses and puts P in apprehension, D’s intent to commit battery transfers to intent to commit assault on P
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9
Q

Negligence

A

(1) duty, (2) breach, (3) cause (actual and proximate), (4) harm

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10
Q

Who is owed duty generally

A

(majority) Only duty to those in “zone of foreseeable danger” (POV of tortfeasor)

(minority) if conduct puts anyone at reasonably foreseeable risk of harm, then actor owes duty to everyone

  • Duty to rescuers: Danger invites rescue, tortfeasor who puts anyone negligently at risk, DOES owe duty to rescuers (AND LIABLE FOR PHYSICAL HARM CAUSED TO RESCUER)
  • Rescuer’s duty: No duty to rescue in first place, BUT: if you voluntarily rescue, (1) then duty to use reasonable care not to make injury worse, and (2) not have P or 3rd party detrimentally rely on reasonable care to rescue
  • BUT: “Firefighters rule”: actor owes NO duty to (1) public-safety officer (2) resulting from actor’s negligent act (3) which caused officer to come to scene
    ——((my note: BUT if negligence separate from the actual initial cause of what caused officer to come to scene there IS a duty then) (ex: negligent act causes firefighter to respond, and then tortfeasor/someone’s separate negligent act at the scene causes firefighter injury, there was a duty there)
  • unborn fetus: if (1) mother owed duty, (2) fetus viable, then duty owed to fetus
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11
Q

Duty to protect victim from 3rd parties wrongful acts

A

Generally no duty to protect victim from 3rd parties wrongful acts except:

(a) voluntary special relationship to protect,
- UNLESS: patient is capable of appreciating/knowing the risk of their actions

(b) reasonably know/should know conduct creates unreasonable risk that 3rd party may harm victim

(c) business to protect business invitees from 3rd party wrongdoing
- Totality of circumstances test: Duty only if business could reasonably foresee 3rd parties harm victims on premises based on the circumstances
- Balancing test: balances (a) foreseeability and gravity of harm, against (b) burden/expense of preventing and business’s social utility

(d) person in custody and their custodian
- (ex: teacher/students, jailer/inmates

(e) common carriers (taxis, busses, airplanes) and passengers

(f) innkeepers and patrons

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12
Q

Duty to protect others

A

(1) legal custody over third party, (2) know/should know third party will harm others if not controlled

  • jailor and inmate,
  • therapist and client: IF: (1) serious threat, (2) against identifiable individual, THEN MUST: (a) warn V, (b) have P committed, (c) notify police,
  • commercial seller of alcohol not to serve minors/obviously intoxicated patrons
  • parent/child: generally no duty to protect from their children’s acts UNLESS (1) parent knows, (2) specific violent propensity, (3) reason to know of (4) imminent and (5) foreseeable harm
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13
Q

Duty owed if owner/possessor of real property

A

Generally duty of reasonable care to occupants,

but some jurisdictions duty turn on the status of the person visiting the land:

Duty to Invitee: (1) reasonable care to invitee, (2) reasonably inspect, (3) remedy/warn about unreasonably dangerous conditions known/should know, UNLESS: open and obvious risk, UNLESS: reasonably foresee invitee injured despite obviousness
- Business invitee definition: (1) possessor’s express/implied consent, (2) for business dealing
- Public invitee definition: (1) premises open to public, (2) invitee on premises for the purpose for which owner keeps premise open
- NOTE: remains invitee only so long as keeps within invitation’s scope (ex: no longer invitee if (a) wander onto part of property not reasonably related to invitation, (b) remains unreasonably long after purpose terminated)

Duty to Licensee: (1) reasonable care to licensee, (2) remedy/warn about known unreasonably dangerous conditions, UNLESS: open and obvious risk, UNLESS: reasonably foresee invitee injured despite obviousness
- NOTE: DIFFERENCE between invitee/licensee is no duty to inspect for licensees
- Licensee definition: (a) on premises with possessors gratuitous consent (social guest), or (b) legal privilege to be there over objection (first responder responding to emergency)
- NOTE: may become trespasser if (a) wander onto part of property possessor hasn’t consented to, or (b) exceed scope of privilege to occupy property

Trespasser: anyone not (a) possessor, (b) invitee, or (c) licensee

Duty to Undiscovered Trespasser: (1) avoid intentionally or recklessly harming trespasser
- Definition: (a) trespasser is unknown, or (b) possessor neither knows or has reason to know of trespasser

Duty to discovered/anticipated trespasser: warn of known artificial dangers and use reasonable care

Duty to Child Trespasser “attractive nuisance”: (1) injury caused by artificial man-made condition on land (2) possessor knows of condition, (3) possessor knows children likely trespass upon it, (4) possessor knows it poses risk of death/serious bodily injury, (5) child can’t appreciate the danger due to youth (6) balancing test: condition’s usefulness/burden to remove it is slight compared to danger the condition poses to child trespassers (7) possessor fails to take reasonable care to remedy the danger to child trespasser

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14
Q

What is the duty (standard of care)

A

Generally: “Reasonable care”

Adult: objectively reasonable person under circumstances
- NOTE: objective standard means that an adults subjective mental deficiencies NOT taken into account, BUT physical deficiencies are (but it also assumes that actor knew of their own deficiencies and should act accordingly)
- BUT: if D has enhanced attributes then reasonable person with those enhanced attributes is the duty of care
- statute or rule can apply the specific standard of care

Child: subjective standard of care of a child of similar age, intelligence, and experience
- (some jx: under certain age (typically 7), child legally incapable of negligence)
- But adult standard if child engages in “adult activity” (one that carries inherent risk of grave injury if not carried out with care of typical adult) (like driving car)

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15
Q

Standard of care in medical malpractice cases

A

General practitioner: reasonably prudent physician under the circumstances

Specialist: Reasonably prudent physician in the D’s specialist discipline

Lack of informed consent liability: (1) nondisclosure (2) material risk, (3) causation, (4) harm
- BUT don’t need to disclose if: (a) known/obvious risk, (b) disclosure would cause patient to be come irrational/harm them, (c) emergency situation
- causation: (some jx: subjectively would have declined treatment) (some jx: objectively would have declined treatment)
- BAR EXAM NOTE: (P must have expert physician testify since they need to establish standard of care for doctor, so no expert witness, no liability)

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16
Q

Breach

A

Failure to conform to standard of care

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17
Q

Res Ipsa Loquitur

A

“Accident speaks for itself” (P can’t show what act D negligently did, so relies on the harm itself)
- NOTE: ONLY PROVES BREACH, still need to prove duty, cause, and harm

Requirements: (1) type of accident only occurs due to negligence, (2) actor has control over harmful instrumentality, (3) victim didn’t contribute
- control can be (a) direct, or (b) authority/influence
- control can be shared, D’s share of control just need to be the most plausible explanation for accident

  • (ex: P outside warehouse, suddenly barrel falls from window of warehouse, P can’t prove who D is or what D did, just that barrel fell on them, invokes res ipsa)
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18
Q

Negligence per se

A

Negligence automatically established if law violated

Requirements: (1) mandatory specific command from law, (2) criminal penalty, (3) V within class of person’s law meant to protect, (4) law intended to prevent type of harm that occurred
- EXCEPTIONS:
- (a) complying with law more dangerous than alternative (ex: viscous dog forces to walk on wrong side of road)
- (b) can’t comply due to incapacity (ex: heart attack or youth)
- (c) D didn’t reasonably know they needed to comply (ex: tail light out but D wasn’t aware)
- (d) sudden emergency not caused by D (ex: sudden mechanical failure on car, or swerve to avoid child)
- (e) despite all reasonable efforts, D couldn’t comply (ex: snowstorm that takes days to clear, railroad not liable for kid who is injured during that time)

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19
Q

Respondeat Superior

A

(1) employee/employer relationship, (2) tort within scope of employment
- Independent contractors don’t count
- Employee vs Independent contractor test: Does employer have sufficient control such that worker is considered an employee? (factors: permanence, provides tools/training, hourly or by job, on site/off site, etc.)
- Scope of employment test: conduct aimed at serving employer (frolic: substantial deviation, NOT scope of employment) (detour: minor deviation, IN scope of employment)

  • BUT Respondeat superior for independent contractors if:
    (a) inherently dangerous work,
    (b) non-delegable duties ((essentially public interest duties)) (ex: emergency room care: (1) hospital advertised emergency services (2) V sought hospital care not specific physician (3) reasonable person would believe physician was hospital employee) (municipality street repair) (common carrier passenger safety)(landlord repairs)(employee safe working environment)
    (c) “shoddy construction”: (1) IC hired to perform work on structure, (2) IC makes structure/land unsafe, (3) EMPLOYER controls premises when accident occurs BUT NOT IF: (1) IC negligent (2) negligence NOT inherent to nature of the work (3) no reason to anticipate negligence (ex: hire ICs to paint, one drops paint bucket on someone)
20
Q

Strict liability generally

A

(1) inherently dangerous activity, (2) activity unusual, (3) harm foreseeably results from characteristic making it inherently dangerous

  • “inherently dangerous” if: activity creates high risk of harm of substantial harm despite everyone using reasonable care (ex: hauling dynamite)
  • “unusual” if: uncommon in community where it occurs
  • BUT DEFENSES:
  • voluntary engagement: (1) V knowingly, (2) unreasonably, (3) engages in risk of harm from the inherently dangerous activity
  • willful trespass: (1) V willfully trespassed
21
Q

Strict liability for animal owners

A

livestock: (1) animal used for their utility, (2) escapes/trespasses, (3) due to foreseeable event, (4) causes harm typical of livestock
- Exceptions: (a) highway/land adjacent to highway, (b) V didn’t build fence

domesticated: (1) animal NOT used for utility (pets), (2) unusual dangerous propensity, (3) D knows/should know of propensity, (4) V’s injury arises from abnormal dangerous propensity

Wild animals: (1) animal NOT used for utility/not domesticated, (2) V’s injury arises from wild characteristics of animal’s species
- NOTE: objective NOT subjective to determine if wild (aka tamed wild animal still wild animal) (pet used for utility still a pet)

22
Q

Actual causation

A

but-for D’s act, harm wouldn’t have occurred

Concurrent-causes test: (1) multiple forces combine to cause harm, (2) none could cause harm by itself, then all actors caused

Substantial-factor test: (1) multiple forces combine to cause harm, (2) any one could cause harm by itself, (3) impossible to tell which force cause which portion of harm, and (4) D’s negligence was a substantial factor, then D is an actual cause

alternative-causes doctrine: (1) multiple negligent actors, (2) causes harm, (3) impossible to tell which caused, then each actor must disprove their negligence caused or they are liable

23
Q

Proximate cause

A

close enough causal link between breach and harm to justify holding D liable
- Test: harm must be reasonably foreseeable result of D’s negligence (REAL TEST THOUGH: is this act close enough in the chain of events to the ultimate harm that society would deem it fair to impose negligence liability on it?)
- Intervening forces that also contribute won’t end liability if they are also foreseeable
- superseding forces are sufficiently not foreseeable that they break the proximate causal chain

24
Q

Harm (damages): types

A

TYPES: (a) physical, (b) emotional, (c) economic

  • Physical: can always recover
  • emotional: can only recover if
    (a) emotional harm result of underlying physical harm, or

(b) victim establishes separate claim for negligent infliction of emotional distress (1) unreasonable risk of physical harm, (2) physical harm doesn’t occur, (3) V suffers severe emotional distress, and (4) (see below)
- (some jx: (1) PHYSICAL IMPACT, (2) contemporaneous)
- (some jx: NEAR MISS recoverable if (1) reasonable foreseeable risk immediate physical injury, (2) subjectively and reasonably fear for OWN physical safety, (3) ED manifests in physical symptom)
- (some jx: NO physical impact or NEAR MISS required)

(c) “special circumstances” (no underlying physical injury required): (i) mishandle loved one’s corpse, (ii) medical professional negligently misdiagnoses, (iii) D destroys V’s home as they watch

  • economic: can only recover if (a) economic harm traceable to physical harm, or (b) underlying negligence constitutes professional malpractice (but torts other than negligence may allow recover of pure economic loss such as tortious interference with business relations)
  • eggshell-skull rule: If D is negligent, they are liable for the full extent of the damages, even if the P was unusually susceptible to harm thus causing more damages than would normally occur
25
Q

Harm (damages): apportioning among D’s

A

APPORTIONING DAMAGES: multiple parties contribute to harm

(a) D’s acted independently:
– divisible: POSSIBLE to tell who caused what harm = apportion based each D CAUSED
– indivisible: IMPOSSIBLE to tell who caused what harm = apportion based on FAULT PERCENTAGE (Distributed based on whether jx follows “joint and several” or only “several” recovery method

(b) D’s acted jointly: all D’s “jointly/severally” liable for 100% of damages

  • NOTE P’S RECOVERY METHODS:
    – “jointly/severally” liable = P can recover 100% damages from any single defendant REGARDLESS of their fault percentage, but then other D’s have “right of contribution” to sue other D’s for their percentage of fault
    – “several liability” = P can ONLY recover from each D their individual PERCENTAGE fault share, but no more
26
Q

Harm (damages): purpose: compensatory/punitive

A

Compensatory: make victim whole

Punitive: punish/deter outrageous conduct: (1) malice/evil motive (ex: intentional tort) (2) reckless indifference to others rights (disregard substantial unjustified risk harm will occur), (3) valid cause of action entitling at least nominal damages

  • punitive damages totally discretionary
  • constitutional amount limits: “grossly excessive” (a) blameworthiness of conduct, (b) generally not more than 10x ratio between compensatory/punitive, (c) ratio between civil/criminal penalties could be imposed for that conduct and punitive damages
27
Q

Defenses to negligence: Contributory negligence, comparative fault

A

Contributory negligence: (1) victim contributed at all to own harm, (2) no exception applies = victim recovers nothing
- EXCEPTION:
- “last clear chance”: D had last clear chance to avoid harm
- BUT: “discovered-peril rule”:
——(Some jx: (1) victim reasonable way to escape, (2) D subjectively knows of peril, THEN D only liable if last clear chance
——(Some jx: (1) actor subjectively knows of peril, THEN D only liable if last clear chance

Comparative fault:
- Pure comparative fault: V’s recovery reduced by percentage of their fault
- Modified comparative fault: V’s recovery reduced by percentage of their fault BUT if V’s percentage of fault exceeds some threshold of percentage they recover nothing at all (typically 50/51 percent)

28
Q

Defenses to negligence: Assumption of risk, P’s illegal conduct

A

Assumption of risk: (1) V subjectively KNOWS danger, (2) voluntarily proceeds

  • BUT: only applies to risks inherent to activity, so if actor increases risk or cause is outside of the risk, then still liability (ex: falling mirror at a martial arts class not part of he inherent risk)
  • Express or implied
  • Must actually know danger, not just unreasonably fail to appreciate it
  • Complete defense to (a) negligence and (b) recklessness, BUT NOT DEFENSE TO INTENTIONAL TORT
  • BUT: void for public policy if (1) subject matter concerns essential service, (2) no choice by to assume risk because service necessary and needed urgently and disparity in bargaining power

Victim’s criminal conduct: V can’t recover for conduct directly related to their own criminal conduct
- BUT: D breaches duty independent of P’s crime itself
- (ex: V breaks into D’s house, despite D’s crime, V had set up trap that hurts V, D has breached independent duty to not harm trespassers

29
Q

Products liability

A

Injuries arising from defective goods

(1) (i) manufacturing, or (ii) design, or (iii) informational defect (2) caused injury

manufacturing defect = (1) physically departs from intended design, (2) unreasonably dangerous to average consumer

design defect = (1) doesn’t physically depart from intended design, (2) unreasonably dangerous when used or misused in reasonably foreseeable manner
- average consumer test
- reasonable alternative test (1) safer in this situation, (2) not more dangerous in other situations, (3) wouldn’t substantially impair usefulness, (4) technically feasible, (5) economically feasible

informational defect = (1) omits reasonable warnings concerning reasonably foreseeable risk, (2) omission makes unreasonably dangerous, (3) P would have heeded the warning
- warning must be adequate in substance and presentation
- “learned intermediary rule”: if (1) learned intermediary who ultimately proscribes/explains drug/product to user, then manufacturer doesn’t need to provide warnings to patient/user, only adequate warnings to the physician UNLESS: (a) knows/should know there won’t be intermediary, or (b) statute supersedes requirement and imposes duty/no duty (ex: federal tv commercial disclosure requirements on drug manufacturers)

strict liability = (1) commercial supplier of product, (2) defective when left D’s control, (3) no change between time it left D’s control and time of injury, (4) defect actual/proximate cause

LIABILITY APPORTIONMENT when Unknown which company did the harm
- “market share liability” = ONLY IF GOODS FUNGIBLE (interchangeable products because they are essentially the same) THEN, apportion damages based on the market shares of the manufacturers of the defective product

30
Q

Defemation

A

(1) defamatory statement, (2) about P (3) of fact, (4) D intentionally or negligently published to 3rd party, (5) 3rd party understood it, (6) damages (unless libel, or slander per se), AND IF PUBLIC FIGURE: (7) falsity, and (8) actual malice, AND IF PRIVATE CITIZEN AND MATTER OF PUBLIC CONCERN, (9) D was at least negligent as to falsity of statement

  • defamatory = tends to harm V’s reputation
  • defamatory statements are of FACT, NOT insult, hyperbole, or opinion
  • D must prove falsity as prima facie case
  • about P: doesn’t matter who D subjectively intends to refer to, so long as reasonable reader understands it to refer to victim
  • “republication rule”: anyone who repeats defamatory statement is independently liable as primary defamer, BUT NOT (1) secondary publisher, (2) doesn’t know and has no reason to know of the defamatory material

damages:
(a) general = reputational harm (presumed if defamation is libel or slander)
(b) special = financial harm (never presumed)

libel = defamation by print
slander = defamation by orally spoken word
- slander per se: (a) criminal accusation, (b) loathsome disease, (c) character incompatible with D’s profession, (d) sexual immorality

31
Q

constitutional requirements on defamation:

A

Heightened requirements based on (a) V public or private figure, (b) subject is of public or private concern

Public figures: (a) government official, (b) famous person, (c) private person center of public issue or controversy
- Higher standards: (1) prove falsity, (2) clear and convincing burden of proof, (3) prove actual malice (knowledge/reckless disregard)

Private person: (a) preponderance of evidence

AND IF PRIVATE CITIZEN AND MATTER OF PUBLIC CONCERN, (9) D was at least negligent as to falsity of statement

32
Q

Defenses to defamation: Consent and truth

A

Consent

Truth

Qualified privileges: lost if abused
- (a) “Fair-reporting privilege”: fair accurate report of what happened at public/official proceedings (NOTE: even actual malice (knows false) doesn’t defeat this privilege)
- (b) “statement in interest of someone else”: (1) reasonably believe defamatory statement relates to interest of another and that interest is important for law to protect, (2) to protect interest must communicate defamatory statement (3) communicating defamatory statement comports with general standards of decency (meaning by request rather than unprompted and relationship between the parties) (ex: employer asks about reputation of potential employee, speaker says defamatory statement about them)
- HOW TO ABUSE: (a) actual malice (know its false), (b) violates public policy underlying the exception

Absolute privileges: apply even if abused
- (a) “statements made in judicial proceedings” related to proceedings
- (b) “executive branch statements” related to official duties
- (c) “legislative statements” while conducting legislative business
- (d) “between spouses”

33
Q

Economic protections form tort law

A

(a) fraudulent misrepresentation, (b) negligent misrepresentation, (c) tortious interference with business relationship

34
Q

Fraudulent misrepresentation

A

(1) false statement material fact, (2) intend victim to rely, (3) knowledge/reckless disregard of falsity, (4) detrimental reliance, (5) P’s reliance justifiable or reasonable

  • BUT NOT: (a) puffery, (b) opinion, (c) promises (unless actor intended to break), (d) predictions (unless knows impossible), (e) omission (unless legal duty to disclose or active concealment) (or contract: (1) D knows P enter under mistake of fact, (2) fact solely within D’s knowledge, (3) other party couldn’t reasonably discover, (4) P wo)uld reasonably expect disclosure)
35
Q

Negligent misrepresentation

A

(1) false statement material FACT, (2) knows/should know false, (3) foreseeable reliance, (4) financial harm, (5) P’s reliance justifiable or reasonable, (6) relationship that imposes legal duty of reasonable care

  • Relationship: (a) fiduciary/commercial relationship, (b) business to supply info, (c) public duty to supply info
  • BUT NOT: (a) puffery, (b) opinion, (c) promises (unless actor intended to break), (d) predictions (unless knows impossible), (e) omission (unless legal duty to disclose or active concealment)
36
Q

Tortious interference with business relations

A

(1) D knows of contract/prospective economic opportunity, (2) Intentionally and (3) improperly (4) interferes, (5) economic harm

improper: (i) induce breach valid non-terminable at will contract, (ii) illegal conduct (iii) not justified/lawful-competition ((1) competitors, (2) interference concerns subject matter of competition) (ex: lawful competition between parties)

37
Q

Tort Liability for component manufacturers

A

(1) component defective, (2) component causes harm

(1) Component supplier substantially participates in integrating component into final product, (2) integrating component causes final product to be defective, (3) resulting defect causes harm

38
Q

Trespass

A

to Land: (1) intentional, (2) unlawful, (3) physical entry land of another
- **Intent = intend to do some act that happens to produce unlawful entry (ie accidentally)
- physical entry = (a) direct/personal, or (b) indirect = physical object to enter land

to Chattel: (1) intentional, (2) interference, (3) control of another’s chattel, (4) without consent
- interference = so serious that it justifies paying the chattel’s PARTIAL VALUE
- intent = intent to do act that happens to interfere with chattel rights (doesn’t need to knowingly take someone’s property, can be accidental)

Conversion:(1) intentional, (2) interference, (3) control of another’s chattel, (4) without consent
- interference = so serious that it justifies paying the chattel’s FULL VALUE
- intent = intent to do act that happens to interfere with chattel rights (doesn’t need to knowingly take someone’s property, can be accidental)
- DAMAGES: fair market value at time of conversion

39
Q

Privacy torts: Misappropriation of identity

A

(1) D uses V’s identity/likeness/name (2) without consent (3) for purpose of selling product/service

40
Q

Privacy torts: Intrusion upon Seclusion

A

(1) intentionally, (2) physically intrude on (3) PRIVATE seclusion/solitude/affairs, (4) reasonably highly offensive

41
Q

Privacy torts: “False Light”

A

(1) publicizes to large group or small group if special connection, (2) false/misleading information about V, (3) reasonably highly offensive
- Differences between defamation: no reputation harm needed just highly offensive, need to publish to sufficiently large group vs just 1 person,

42
Q

Privacy torts: Publication Disclosure of Private Facts

A

(1) publicize, (2) private, (3) facts about victim, (4) not legitimate public interest, (5) reasonably highly offensive
- Publicize: publicizes to large group or small group if special connection
- private: can’t be publicly known or accessible
- truth of facts not defense to liability

43
Q

Tort of nuisance

A

Public nuisance: (1) unreasonably, (2) interfere, (3) public property right (4) standing ((a) particularized private harm (like livelihood) or (b) representative of public)

Private nuisance: (1) unreasonably, (2) substantially, (3) interfere (4) private property right, (5) standing (possessory interest in property)
- substantial = person of normal sensitives would find it harmful (IE damage can’t result from P’s unique sensitivity/abnormal use of their property)
- unreasonable = objectively reasonable person would find it harmful, not subjective harm
- interfere = harm outweighs the benefit

Remedies:
(a) money, (CAN BE PURELY ECONOMIC)
(b) injunction,
(c) self-help (1) notice, (2) may use reasonable force, (3) enter property at reasonable hour, (4) compensate for harm above necessary

44
Q

Defense/trespass to land

A

A landowner generally may use reasonable force to prevent a trespass to land, BUT can’t if trespasser has a defense to trespass (ie necessity)

45
Q

Option contract

A

UCC: valid without consideration if (1) merchant, (2) writing, (3) 30 days max

Common law: need consideration

Bar Exam (17 decks)

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