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TORTS Flashcards

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1
Q

PRESUMED CONSENT

A

subjective consent not necessary
elements:

Defendant’s conduct justified under prevailing social norms
AND
Defendant has no reason to believe plaintiff would NOT have consented if asked to

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2
Q

RES IPSA LOQUITUR

NEED

A

NEED

Negligence, Eliminated by Evidence, Duty

Plaintiff may invoke RIL when these elements are satisfied:
The event does not ordinarily occur absent negligence
Other possible causes, including the conduct of plaintiff and third persons, are sufficiently eliminated by the evidence
AND
The indicated negligence is within the scope of defendant’s duty to plaintiff

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3
Q

DIMINISHED STANDARDS OF MEETING NEGLIGENCE

A

Negligence Per Se
diminished breach + proximate cause + injury = liable

Res Ipsa Loquitur
diminished evidence + injury = liable

Strict Liability for Abnormally Dangerous Activities
diminished breach + proximate cause + injury = liable

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4
Q

PREPONDERANCE OF EVIDENCE

A

By default, burden of proof in a tort case is preponderance of the evidence
Preponderance of evidence is the basis of truth
50.1% or more probability that defendant is liable based on proof

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5
Q

REASONS FOR JOINT LIABILITY

DEOC

A

DEOC
Design, Encouragement, Own Conduct
An actor is responsible for tortious harm to a third party caused by another when the actor:
Did the tortious act with the other or acted with the other pursuant to a common design (joint venture, joint enterprise, or “conspiracy”)
Knows the other’s conduct breaches a duty, and gives the other substantial assistance or encouragement (“aiding & abetting”)
OR
Gives substantial assistance to the other in reaching a tortious result, and the actor’s own conduct separately considered is tortious as to the third party (i.e. through negligent supervision)

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6
Q

JOINT LIABILITY RELATIONSHIPS

A

Aiding and abetting: one actor’s knowledge of another’s breach of duty and giving the breaching actor substantial assistance or encouragement. Tortious aiding and abetting is not the same as criminal aiding and abetting.
Conspiracy: linked with the notion of Joint Enterprise, a civil conspiracy involved multiple parties involved in a common design, and all the members of the civil conspiracy can be liable for torts committed by just one member of the group in furtherance of the common design
Joint Venture: defendants are in business together
If two business partners are driving somewhere and cause an injury, it is not joint venture unless driving is part of the business
Joint Enterprise: defendants are engaged in a common pursuit (not simply traveling together somewhere, but on a mission or project of some kind, though not for profit, otherwise it would be joint venture)
Exact terminology is “common design” as in a “common design or plan to accomplish a tort”
Passenger negligence applies when passenger’s own actions are the breach and cause of the harm

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7
Q

UCTA

A

UCTA (Uniform Contribution Among Joint Tortfeasors Act) (1939) - called for apportionment when joint liability would be inequitable
Plaintiff’s choice: joint and several liability
Contribution available to defendants
When one defendant settled, others would have their liabilities reduced
Indemnity theories still applied
Only seven states (MA included) still use UCTA

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8
Q

UATRA

A
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9
Q

ASSAULT

AIR

A

AIR

Apprehension - Intent - Reasonable

INTENT
To cause harmful or offensive contact OR
To create the apprehension of offensive contact
Plaintiff is placed in apprehension of imminent harmful or offensive contact AND
Plaintiff’s apprehension is reasonable; i.e. a reasonable person in the plaintiff’s circumstances would experience the same apprehension

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10
Q

BATTERY

A

Intent
To cause offensive contact OR
To cause apprehension of offensive contact
AND
Offensive contact or bodily harm results

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11
Q

FALSE IMPRISONMENT

IFC-CH

A

IFC-CH

Intent, Fixed, Complete, Conscious/Harmed

Intent to confine a person
Confinement is within fixed boundaries
Confinement is “complete”
Person is conscious of confinement OR is physically harmed by it

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12
Q

INTENTIONAL
INFLICTION OF
EMOTIONAL DISTRESS

SEDIO

A

SEDIO
Severe Emotional Distress, Intent, Extreme and Outrageous

Actor bears intent or recklessness as to both volitional conduct AND the harm that plaintiff alleges (“double-duty intent”)
Actor engages in extreme and outrageous conduct AND
Conduct results in plaintiff’s severe emotional distress, manifested in physical symptoms

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13
Q

OUTRAGEOUSNESS

CoRKS

A

CoRKS

Conduct, Relationship, Known Susceptibility

The conduct itself
The relationship between the parties; and
The known susceptibility of the plaintiff

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14
Q

FRAUD

FIRMJI

A

F I R M J I

False, Intent, Rely, Material, Justified, Injury

Defendant made a false representation of fact
Defendant acted with intent or recklessness as to false representation (Recklessness meaning knowledge of falsity or reckless disregard as to truth)
Defendant intended for plaintiff to rely on the false representation
Defendant induced plaintiff’s reliance (subjective), that is, the false representation was material to plaintiff’s decision
Plaintiff’s reliance was justified (objective) AND
Plaintiff was injured as a result of reliance, not merely in dignity, but at least economic loss

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15
Q

MALICIOUS (CRIMINAL) PROSECUTION

PINF

A

P I N F

Prosecution, Improper Purpose, No Probable Cause, Failure

Intentional institution, procurement, or continuation of criminal prosecution
Improper purpose
No probable cause (no reasonable belief defendant committed a crime) AND
Failure of the prosecution

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16
Q

MALICIOUS CIVIL PROSECUTION

LILF

A

L I L F

Litigation, Improper Purpose, Lack of Reasonable Belief, Failure

Intentional institution, procurement, or continuation of civil litigation
Improper purpose
Lack of reasonable belief in the validity of the litigated claims AND
Failure of the litigation

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17
Q

ABUSE OF
PROCESS

JUNH

A

J U N H

Judicial, Ulterior, Not For Intended Purposes, Harm

Use of judicial process (civil or criminal)
Ulterior or improper motive
Process used not for its designed or intended purposes AND
Resulting harm

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18
Q

PRIMA FACIE TORT

LISN

A

L I S N

Lawful, No Excuse/Justification, Special Damages, Intentional

Intentional infliction of harm
Resulting special damages
No excuse or justification AND
The act is otherwise lawful

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19
Q

FALSE ARREST

IFC-CH-LV

A

I F C - C H - L V

Intent, Fixed, Complete, Conscious or Harmed, Legal, Validity

  1. Intent to confine a person
  2. Confinement is within fixed boundaries
  3. Confinement is “complete”
  4. Person is conscious of confinement OR is physically harmed by it
  5. Confinement is effected by asserted legal authority &
  6. “Complete” custody effected by the detained’s submission to the asserted authority
    Because the detained believes the authority to be valid
    OR Because the detained has doubts as to its validity
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20
Q

ARREST PRIVILEGE

A

(defense to false arrest or any applicable)

Reasonably suspected that the detainee committed a felony
Witnessed a breach of peace by the detainee
OR
Acted upon a warrant issued upon probable cause

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21
Q

MERCHANT’S PRIVILEGE

A
  1. The actor reasonably believes that the detained has taken goods from the actor’s premises OR is attempting to leave the premises without paying for goods or services rendered AND
  2. The detention is reasonable with respect to the following
    a. The investigative purpose of the detention (such as summoning law enforcement and recovery of the property)
    b. The area or physical scope of the detention (including the force used to effect detention)
    c. AND The duration of the detention
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22
Q

SELF-DEFENSE

A

Defendant is protecting against a threat of physical harm
The threat is immediate
The harm would result from the intentional or negligent act of the other
AND
Defendant employs force only to the extent necessary to avert the harm (necessity and proportionality)

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23
Q

SELF-DEFENSE
WITH
DEADLY FORCE

A
  1. Defendant is protecting against a threat of physical harm
  2. The threat is immediate
  3. The harm would result from the intentional or negligent act of the other AND
  4. Defendant employs force only to the extent necessary to avert the harm (necessity and proportionality)
    AND
    a. Defendant knew OR (reasonably) should have known that safe escape (retreat) was not possible OR
    b. Defendant knew OR (reasonable) should have known that safe escape (retreat) was possible but defendant is in own home that is not also the attacker’s home
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24
Q

DEFENSE OF
PERSONAL PROPERTY

FRNN

A

F R N N

Force, Request, Not Deadly, Necessary

  1. Plaintiff is exerting force to dispossess defendant of defendant’s personal property
  2. Request for return of property has been made and failed OR would be useless
  3. Force is not deadly AND
  4. Force is employed only to the extent necessary (necessity and proportionality)
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25
Q

DEFENSE OF REAL PROPERTY

IRNN

A

I R N N

Intruding, Request, Not Deadly, Necessary

  1. Plaintiff is intruding on defendant’s real property
  2. Request that plaintiff-intruder leave has been made and failed, or would be useless
  3. Force is not deadly AND
  4. Force is employed only to the extent necessary to repel intrusion (necessity and proportionality)
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26
Q

Torts: CONSENT

PSCN

A

PSCN

Permits, Subjective Consent, Not Substantially Different

  1. Plaintiff permits intentional, otherwise tortious conduct to occur;
  2. Plaintiff’s subjective intends consent AND
  3. Defendant’s conduct is not substantially different from what plaintiff intended
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27
Q

EMERGENCY CONSENT

BIN

A

BIN

Believe, Immediate, Necessary

  1. Defendant reasonably believes the conduct is necessary to protect the life or health of the plaintiff
  2. Immediate action necessary AND
  3. Defendant has no reason to believe plaintiff would NOT have consented if asked
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28
Q

RECKLESSNESS

KRPH

A

KRPH

Knows, Risk, Probability, Harm

  1. Defendant knows OR has reason to know
  2. That defendant’s conduct creates an unreasonable risk of harm AND
  3. That there is a high degree of probability that harm will result AND
  4. Harm results
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29
Q

NEGLIGENCE

BDIP

A

BDIP

Breach, Duty, Injury, Proximate Cause

  1. Duty
  2. Breach
  3. Proximate cause AND
  4. Injury
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30
Q

HAND FORMULA

A

Liability imposed when: B < P X L

B = Burden
P = Probability
L = Loss

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31
Q

LANDOWNER NEGLIGENCE
INVITEE

FRIEND

A

FRIEND

Failed, Reasonable Investigation, Expected Not to Discover

  1. Reasonable investigation of the property would reveal the dangerous condition
  2. Property owner would not reasonably expect the invitee to discover the dangerous condition AND
  3. Property owner failed to exercise reasonable care in making the condition safe or warning the invitee of the danger
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32
Q

LANDOWNER NEGLIGENCE
LICENSEE

FERKN

A

FERKN

Failed, Exists, Reason to Know, Not [Licensee Not Know]

  1. An unreasonably dangerous condition exists on the property
  2. The property owner knows or has reason to know of the dangerous condition
  3. The licensee does not know of the dangerous condition AND
  4. The property owner failed to exercise reasonable care in making the condition safe or warning the licensee of the danger
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33
Q

LANDOWNER NEGLIGENCE
TRESPASSER
RULE A

A

No landowner liability to trespassers

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34
Q

LANDOWNER NEGLIGENCE
TRESPASSER
RULE B

FRED R or D

A

FRED R or D
Failed, Reason, Exists, Discover, Repeated or Death

  1. An unreasonably dangerous condition exists
  2. The property owner knows or has reason to know of the dangerous condition
  3. EITHER The property owner knows or has reason to know of repeated intrusions onto the property OR
    The dangerous condition poses a death risk
  4. A reasonable trespasser would not discover the condition AND
  5. The property owner failed to exercise reasonable care in making the condition safe or warning the trespasser of the danger
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35
Q

LANDOWNER NEGLIGENCE
TRESPASSER
RULE C

FRED D or D

A

FRED D or D
Failed, Reason, Exists, Discover, Discover or Death

  1. An unreasonably dangerous condition exists
  2. The property owner knows or has reason to know of the dangerous condition
  3. EITHER The property owner discovers the trespasser on the property before the accident occurs
    OR The dangerous condition poses a death risk
  4. A reasonable trespasser would not discover the condition AND
  5. The property owner failed to exercise reasonable care in making the condition safe or warning the trespasser of the danger
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36
Q

LESSOR OF PROPERTY NEGLIGENCE

FECK

A

FECK

Failed, Exists, Concealed, Knows

  1. An unreasonable dangerous condition exists on the property
  2. The lessor-defendant knows of the condition
  3. The condition is concealed, i.e.
    The plaintiff does not know of the condition AND A reasonable person in the plaintiff’s circumstances would not discover the condition
  4. AND The lessor-defendant failed to exercise reasonable care in making the condition safe or warning the plaintiff of the danger
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37
Q

FRANCES T. RULE

A

Liability could attach to a defendant whose negligence created an opportunity for the later intentional or criminal actor when the defendant knew or should have known that
The likelihood that the opportunity would be created
AND
That a third person would avail of the opportunity

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38
Q

NEGLIGENCE PER SE

HICH

A

HICH

Hazard, Interest, Class, Harm

Legislation can supersede “reasonable person” test when legislation endeavored:
1. To protect this class of plaintiff
2. To protect the interest that plaintiff alleges was invaded
3. To protect the interest from the hazard the plaintiff alleges caused harm AND
4. To protect the interest from the harm the plaintiff alleges was sustained

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39
Q

SPOLIATION

CAP SAID

A

CAP SAID
Civil Action, Preserve, Suffers, Absence Impairs, Destroyed

  1. Plaintiff has a potential civil action against defendant;
  2. Defendant has a legal or contractual duty to preserve evidence relative to the potential civil action;
  3. Defendant with fault [negligence or intent] causes the evidence to be destroyed or otherwise inaccessible;
  4. Absence of the evidence significantly impairs plaintiff’s ability to prove the potential civil action
  5. AND Plaintiff suffers damages from inability to prove the potential civil action
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40
Q

EXPRESS ASSUMPTION OF RISK

A
  1. There is a risk of negligence or recklessness
  2. Plaintiff has expressly agreed to assume the risk
  3. AND The express agreement is not contrary to public policy
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41
Q

INFORMED CONSENT

COINDiR

A

COINDiR
Consents Otherwise, Injury, Not Divulge, Relationship

  1. Doctor-patient relationship exists [duty];
  2. Doctor-defendant does not reasonably divulge to patient-plaintiff sufficient information for a patient to give informed consent to treatment [breach];
  3. Because of doctor’s omission, patient consents to treatment [proximate cause]
    To which patient otherwise would not have consented AND To which a reasonable person otherwise would not have consented
  4. AND Because of doctor’s omission, patient suffers injury that patient otherwise would not have suffered [proximate cause and injury]
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42
Q

INFORMED CONSENT
REASONABLENESS

BARN

A

BARN

Benefits, Alternatives, Risks, Nature

Nature of the procedure
Risks of the procedure
Alternatives to the procedure
Benefits to the procedure

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43
Q

EAOR

REAP

A

REAP

Risk, Expressly Agreed, Public

There is a risk of negligence or recklessness
Plaintiff has expressly agreed to assume the risk
AND
The express agreement is not contrary to public policy

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44
Q

IAOR

RUSAK V

A

RUSAK V

Risk, Unreasonable, Specific, Assented, Knowingly, Voluntarily

There is a Risk of negligence or recklessness
The risk is
Unreasonable, AND
Specific, AND
The plaintiff Assented to the risk
Knowingly, AND
Voluntarily

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45
Q

Theories of Comparative Negligence

A

Pure Comparative Fault - plaintiff’s recovery is reduced in proportion to plaintiff’s fault

Modified Comparative Fault - plaintiff cannot recover if more than 50% at fault, otherwise it is proportional to fault; some variation exists among jurisdictions, some allow recovery past 50% fault

Modified comparative fault is considered by most to be the happy medium between a system that forces potential defendants to be more cautious (1. simple negligence, then 2. pure C/F) and a system that forces potential plaintiffs to be more cautious (1. contributory negligence, then 2. gross negligence defenses)

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46
Q

Imputation of Negligence

A

Types of Relationships that give rise to imputation
Employment (Respondeat Superior)
Joint Enterprise (Business Partnership for instance) and
Consequential Damages - used to broaden the possible negligence of the defendant(s) by increasing culpable parties or the plaintiff’s contributory negligence
Types of Relationships that usually do not give rise to imputation
Spouse-Spouse
Parent-Child (except when local statutes say otherwise, such as with a child’s debts)
Personal Property Bailee-Bailor
Vehicle Driver-Passengers

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47
Q

ATTRACTIVE NUISANCE

EEPRCRNoDNRUBOF

A

EEPRCRNoDNRUBOF

Enters and Encounters, Place Reason, Condition Reason, Not Discover, Not Realize, Utility Burden Outweighed, Fails

Child trespasser enters on defendant’s real property and encounters a highly dangerous and artificial condition
As to the Place, the landowner knows or has reason to know that children are likely to trespass there
Landowner knows / has reason to know of the unreasonable deadly risk with which children are likely to meddle
The children do not discover the risk because of their youth, & do not realize the risk of entering into the dangerous area
The utility of the condition and the burden of eliminating it are outweighed by the high risk to children AND
The landowner fails to exercise reasonable care to make safe or warn

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48
Q

6 Factors of “Abnormally Dangerous”

NC ILLA LUMP

A

NC ILLA LUMP

Not Common, Inappropriate Location, Limited Ability, Low Utility, Magnitude, Probability

High probability of loss
High magnitude of loss if it materializes
Limited ability of defendant to eliminate risk by exercising care
Abnormal nature (not common usage) of the activity
Inappropriateness of activity to the location
Low social utility of the activity

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49
Q

STRICT PRODUCT LIABILITY

SBDCH

A

SBDCH

Seller, Business, Defective, Caused, Harm

Defendant is a seller of the product
Defendant is in the business of selling the product
Product is defective
Defect proximately caused the harm alleged
AND
The harm was to person or property

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50
Q

DESIGN DEFECT
&
WARNING DEFECT

FANS

A

FANS

Foreseeable, Alternative, Not Safe

Foreseeable Risk - manufacturer knew or should have known
Reasonable Alternative Design - risk vs. utility balancing (or for Warning Defect, “Reasonable Warning Could Have Helped”)
AND
Not Reasonably Safe (tests vary jurisdictionally) - self-referential, Wade factors, or consumer expectations test

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51
Q

NECESSITY

PISTCURN

A

PISTCURN

Protect, Imminent, Serious, Trespass or Conversion, Upon Reasonable Necessity

The primary tort claim is trespass (to real or personal property) or conversion
Defendant acts intentionally to protect person or property from a threat of harm not caused by plaintiff
Threat of harm is Imminent AND Serious
AND
Def. acts upon reasonable necessity

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52
Q

TYPES OF DAMAGES

SPACS CLUNG

A

SPACS CLUNG

Symbolic - a minimum might be set by statute
Punitive - awarded to punish
Actual - provable losses
Compensatory - make a plaintiff whole
Special - “invoiceable”
Consequential - 2ndary, emot. except IIED
Liquidated - “pecuniary,” economic
Unliquidated - no calc. monetary equivalent
Nominal - aka symbolic
General - i.e. money for a lost limb

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53
Q

PUNITIVE DAMAGES AGAINST EMPLOYER

ARMOR

A

ARMOR

Authorized, Reckless, Management, Or Ratified

The employer authorized the wrongful act and the manner of its conduct
The employer was reckless in employing an unfit employee
The employee was working in a management capacity;
OR
The employer or employer’s managers ratified the wrongful act after it occurred

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54
Q

NEGLIGENCE DEFENSES

A

EAOR
IAOR
C/N
C/F
Necessity

Also public policy (all torts)

55
Q

S/L DEFENSES

A

Common Carrier
Cmt. i defense and Cmt. j defense (good whiskey, good tobacco, etc.)

Majority Approach includes:
AOR
C/N
C/F
Also public policy (all torts)

56
Q

INTENTIONAL TORT DEFENSES

A

Consent
Arrest Privilege
Merchant’s Privilege
State of the Art
Self-Defense
Defense of Property
Necessity
Justification (aka Privilege)
Excuse
Emergency (such as in a MedMal case)
Privilege (such as MedMal case, Nishi v. Hartwell)

Also public policy (all torts)

57
Q

ARREST PRIVILEGE (with acronym)

FPW

A

FPW

Felony, Peace, Warrant

Reasonably suspected that the detainee committed a felony
Witnessed a breach of peace by the detainee
OR
Acted upon a warrant issued upon probable cause

58
Q

MERCHANT’S PRIVILEGE
(with acronym)

BLT & DRAID

A

BLT & DRAID

Believe, Taken, Leave & Detention Reasonable, Area, Investigation, Duration

The actor reasonably believes that
detained has taken goods from actor’s premises
OR
attempting to leave prem. w/o paying for goods or services
AND
The detention is reasonable with respect to the following
The investigative purpose of the detention (such as summoning police & recovery of property)
Area or physical scope of the detention (& force used to effect detention)
AND
The duration of the detention

59
Q

SELF DEFENSE
(with acronym)

PHIAN

A

PHIAN
Physical Harm, Immediate, Act, Necessary

Defendant is protecting against a threat of physical harm
The threat is immediate
The harm would result from the intentional or negligent act of the other
AND
Defendant employs force only to the extent necessary to avert the harm (necessity and proportionality)

…W/ DEADLY FORCE added elements:
Defendant knew OR (reasonably) should have known that safe escape (retreat) was not possible
OR
Defendant is in own home that is not also the attacker’s home

60
Q

FRANCES T RULE

A

The act of a 3d party in committing an int. tort or crime is a superseding cause of harm to another resulting therefrom, unless the actor, at the time of his negligent conduct, realized or should have realized (LA, Likelihood, Avail):
The likelihood that such a situation might be created
AND
That a third party might avail himself of the opportunity to commit such a tort

61
Q

PRESUMED
CONSENT

A

subjective consent not necessary
elements:

Defendant’s conduct justified under prevailing social norms
AND
Defendant has no reason to believe plaintiff would NOT have consented if asked to

62
Q

RES IPSA
LOQUITUR

NEED

A

NEED

Negligence, Eliminated by Evidence, Duty

Plaintiff may invoke RIL when these elements are satisfied:
The event does not ordinarily occur absent negligence
Other possible causes, including the conduct of plaintiff and third persons, are sufficiently eliminated by the evidence
AND
The indicated negligence is within the scope of defendant’s duty to plaintiff

63
Q

DIMINISHED STANDARDS OF MEETING NEGLIGENCE

A

Negligence Per Se
diminished breach + proximate cause + injury = liable

Res Ipsa Loquitur
diminished evidence + injury = liable

Strict Liability for Abnormally Dangerous Activities
diminished breach + proximate cause + injury = liable

64
Q

2d Restatement
View of Causation

A

2d Statement Causation: both a question of law and fact
Court decides if but-for causation fails; if not, to jury
As a Matter of Law
Proximity and Foreseeability
When ruled on as a matter of law, “reasonable jurors could not differ on the question of fact
Proximate = “closest in relationship; immediate”
Intervening cause may become a superseding cause that relieves earlier-in-time liability; it would have to be “new and unexpected” and “not foreseeable” to be considered superseding
As a Matter of Fact
Jury: scientific v. legal/substantial causation?
Substantial Causation - function of proximity between defendant’s act and plaintiff’s injury

65
Q

2d RESTATEMENT
SUBSTANTIAL CAUSATION

FLY

A

FLY

Factors, Lapse, Yielded

Is it legal causation? Factors considered:
Other possible Factors and the extent to which they were involved as causal of plaintiff’s injury
Whether the defendant’s action Yielded forces in active and continuous operation up to the time of injury (absent a position of apparent safety)
Lapse of time

Other factors that ought to be considered: lapse of space / physical distance

66
Q

REQUIREMENTS OF
PUNITIVE DAMAGES

A

Requires proof of defendant’s malice (ill will or recklessness)

Ill will = common law malice
Historically, the only way to achieve punitive damages
Recklessness = legal malice
Many jurisdictions use this as the threshold for awarding punitive damages

67
Q

NEGLIGENCE MATTERS
OF LAW VS. FACT

A

Duty: question of law
Circumscribed by Fairness and Public Policy
Breach: question of FACT
Proximate Cause
But-for / scientific causation: Question of Fact
Substantiality: Question of Fact
Foreseeability: Question of Law
Injury: Question of Fact or Law

68
Q

SURVIVAL CLAIMS MAJORITY/MINORITY RULES

A

Majority Rules:
Denies survival claims for instant death
Permits pre-impact fear damages for survival claims
Permits punitive damages against a living defendant

Minority Rules:
Minority rule allows all survival cases, even instant death, and allows general recovery for the life itself
Does not allow punitive damages in survival suits

69
Q

CAUSATION TERMS
SCIENTIFIC CAUSATION
SUBSTANTIAL CAUSATION
LEGAL CAUSATION
ATTENUATION

A

Scientific Causation = Factual Causation

Substantial Causation = Legal Causation

Legal Causation = foreseeability!

Attenuation = lessened, muffled by passing through a limiting medium

70
Q

FIREFIGHTER RULE

A

Disallows recovery for emergency responders injured in the line of duty by an actor’s negligence

Separate And Apart - a rule in some jurisdictions at one time that held that the Firefighter Rule did not apply (in other words, recovery was allowed) when the injury sustained on the job was due to an actor’s negligence that was not related to the emergency that drew the emergency responder to the scene

71
Q

NIED EXCEPTIONS

BIZ

A

BIZ

Bystander, Impact, Zone

Bystander Rule - (MINORITY) recovery permitted according to the Dillon v. Legg (Cal. 1968) rule, later tightened in Thing
Impact Rule - (OVERWHELMING MAJORITY) even slight physical injury can meet the requirement of physical injury that will allow for consequential emotional damages
Zone of Danger Rule - (MAJORITY) if plaintiff was in the “zone of danger,” aka could have been injured, but was left unhurt, recovery permitted

72
Q

BYSTANDER RULE

PARSED

A

PARSED

Present and Aware, Related, Severe Emotional Distress

The plaintiff is closely related to an injured victim (usually immediate family)
The plaintiff is present at the time of the injury-producing event and is then aware that the injury is occurring
AND
The plaintiff as a result suffers severe emotional distress, not abnormal under the circumstances, but as one might expect, beyond that of the disinterested witness

73
Q

RESCUE DOCTRINE

A

Creates a separate tort claim for the rescuer
One injured while rescuing another from a danger created by defendant’s negligence can recover from the defendant
Rescue doctrine eliminates defendant’s otherwise potential “no duty” and “no legal causation” defenses against a rescuer’s claim
Pre-comparative fault, rescue doctrine also eliminated affirmative defenses of AOR and C/N

74
Q

PRIVATE NUISANCE

I FAUL F

A

I FAUL F
Interference, Fault, Avoid, Utility, Locality, Fault
Substantial interference by defendant from its land with plaintiff’s use and enjoyment of its land according to the experience of an ordinary member of the community
AND
One of the following:
Fault, meaning intent to act and knowledge with substantial certainty in the interfering result, and interference that is unreasonable, meaning:
Gravity of harm outweighs utility of the defendant’s conduct
Defendant can avoid harm in whole or part w/o undue hardship
OR
The plaintiff’s use and enjoyment is well-suited to the character of the locality, while defendant’s is not
OR
Fault, meaning defendant’s double-duty intent, recklessness, negligence, or abnormally dangerous activity

75
Q

PUBLIC NUISANCE

PUS

A

PUS

Public, Unreasonable, Statute

Defendant interfered with a right common to the public as a class, not merely to one individual or small group
The interference is unreasonable
AND
The plaintiff’s cause of action is authorized by statute

76
Q

TRESPASS
TO LAND

FERP

A

FERP
Fault, Entry or Remaining, Physical [Harm or Fault]

Fault, meaning intent (to enter onto the land), recklessness, negligence, or strict liability (abnormally dangerous activity);
Entry or remaining on land, or causing another person or object to effect entry to remaining on land, without privilege
AND
One of the following
Physical harm
OR
Fault (supra) that is intent-based

77
Q

TRESPASS TO CHATTEL

FCDH

A

FCDH

Fault, Contact, Dispossession, Harm [or Dispossession])

Fault, meaning intent (to contact or dispossess);
Physical contact with chattel, or dispossession of it;
AND
Physical harm, or dispossession

78
Q

TRESPASS TO CHATTEL

FCDH

A

FCDH

Fault, Contact, Dispossession, Harm [or Dispossession])

Fault, meaning intent (to contact or dispossess);
Physical contact with chattel, or dispossession of it;
AND
Physical harm, or dispossession

79
Q

CONVERSION

FDV

A

FDV

Fault, Dominion, Deprivation

Fault, meaning intent (to exercise dominion);
Exercise of dominion over the chattel of another;
AND
Deprivation to the plaintiff of the full value of the chattel (“constructive dispossession”)

80
Q

CONVERSION

FDV

A

FDV

Fault, Dominion, Deprivation

Fault, meaning intent (to exercise dominion);
Exercise of dominion over the chattel of another;
AND
Deprivation to the plaintiff of the full value of the chattel (“constructive dispossession”)

81
Q

DEFAMATION

PIFF HD

A

PIFF HD

Publication, Identification, Fault, Falsity, Harm, Defamation)

Publication (with fault)
Identification (with fault) (of and concerning the plaintiff)
Expression capable of defamatory meaning (CDM)
Fault as to falsity
AND
Harm
Falsity*

82
Q

TRIGGERING THE FIRST AMENDMENT
IN DEFAMATION

A

Triggering the First Amendment Special Rules occurs when…
Public figure or public official status of plaintiff, such as…
An all-purpose public figure, who is a person pervasively involved in matters of public interest
A limited-purpose public figure, who is a person thrust to the forefront of an issue of public interest, and may include an involuntary public figure
A public official, whose official status is relevant to the expression
OR
Public nature of the matter, or concern, of the expression, determined by the factors…
Content, such as the subject matter of a lawsuit
Form, such as a telephone conversation or a newspaper story
Context, such as overarching public controversy

83
Q

SPECIAL RULES
WHEN PLAINTIFF IS A PUBLIC FIGURE / OFFICIAL

A

When plaintiff is a public figure or public official, the First Amendment requires…
Expression “of and concerning the plaintiff”
Actual malice as to falsity for any damages
Actual malice as to falsity proved by clear and convincing evidence
Plaintiff’s burden to prove falsity of fact
Recovery only for actual damages proved, and no presumed damages
AND
On appeal, independent review of the factual record to ensure that actual malice as to falsity is supported by substantial evidence

84
Q

SPECIAL RULES: PLAINTIFF NOT PUBLIC FIGURE, SUBJECT MATTER PUBLIC CONCERN

A

where plaintiff is not a public figure or official, but the subject matter is one of public concern. Here, the First Amendment requires…
At least negligence as to falsity for any damages
Actual malice as to falsity for presumed damages
Actual malice as to falsity for punitive damages
AND
Proof of actual malice, when required, by clear and convincing evidence

85
Q

DEFAMATION: OPINION OR FACT?

BCLV

A

BCLV

Broader, Context, Language, Verifiable

The specific language used
Whether the statement is verifiable
The general context of the statement
The broader context in which the statement appeared

86
Q

LIBEL PER SE

SLANDER PER SE

A

Libel Per Se
Historic Common Law - all libel was “per se”
Modern Common Law - libel is “per se” when the expression is automatically defamatory, defamatory meaning on its face, without extrinsic evidence/context
Slander Per Se
Slander Per Se exists when the expression asserts that (GUID, Guilty, Unchaste, Incompetent, Disease):

Plaintiff is guilty of a serious crime
Plaintiff has a “loathsome disease”
Plaintiff is incompetent or dishonest in plaintiff’s business, trade, or profession
OR
Plaintiff is unchaste

87
Q

PRIVILEGES TO DEFAMATION

A

Absolute Privilege Defense Scenarios
Judicial proceedings, where related to the proceeding
Legislative Proceedings
Between spouses
Compelled by law
Qualified Privilege Defense Scenarios
In the public interest, when recipient has authority to protect interest
In defendant’s interest, when recipient will protect that interest
In interest of recipient or third party, when defendant should disclose according to generally accepted standards of decency; such as when discussing a candidate for a job (common interest)

88
Q

INVASION OF PRIVACY:
DISCLOSURE OF PRIVATE MATTERS

PPOC

A

PPOC

Publicity, Private, Offensive, Concern)

Publicity
Private life of another
Information the disclosure of which would be highly offensive to a reasonable person
AND
Not of legitimate public concern (aka non-newsworthiness)

89
Q

INVASION OF
PRIVACY:
PUBLICITY IN A
FALSE LIGHT

FOPA

A

FOPA

False [Light], Offensive, Publicity, Actual [Malice])

Placement of another before the public in a false light
Publicity to the false-light portrayal
The false-light portrayal would be highly offensive to a reasonable person
AND
The defendant’s actual malice as to falsity

90
Q

INVASION OF PRIVACY:
INTRUSION UPON SECLUSION

OSS PI

A

OSS PI

Offensive, Solitude Seclusion Private, Intentional)

Intentional intrusion
Intrusion upon solitude, seclusion, or private affairs
AND
Intrusion that is highly offensive to a reasonable person

91
Q

INVASION OF
PRIVACY:
RIGHT OF PUBLICITY

AV

A

AV

Appropriation, Value

Appropriation of another’s name or likeness
Use of the value of identity for one’s own purpose or benefit

92
Q

2d RESTATEMENT DUTY
(NUTSHELL)

A

2d Restatement Duty: Focuses on the relationship between the parties; as reiterated by the Iowa Supreme Court, factors considered in Duty analysis under 2d Res. are relationship, foreseeability (of harm and plaintiffs), and public policy
2d Restatement employs Palsgraf approach, giving the “reasonable person” the knowledge that the actual parties had in the case at issue

93
Q

2d RESTATEMENT CAUSATION
(NUTSHELL)

A

2d Restatement Causation: gives significant distinction between the matter-of-law parts of causation (foreseeability, legal) and the matter-of-fact parts of causation (scientific and substantial), but also because of the foreseeability overlap with duty, the 2d Restatement paves the way for the merging of portions of duty and causation.
Substantiality factors include 1) lapse of time, 2) other causal factors, and 3) the continuous and significant impact, or lack thereof, of defendant’s actions on the injury
Very significant to remember here: Substantial causation is not really the grandfather to “scope of liability” in 3d Restatement, “foreseeability” is. Substantial causation is rather the degree to which we’ll consider the scientific causation.

94
Q

DEFAMATION
Public figure or public official
(Determining Factors)

OLA

A

OLA

Official, Limited, All

An all-purpose public figure, who is a person pervasively involved in matters of public interest
A limited-purpose public figure, who is a person thrust to the forefront of an issue of public interest, and may include an involuntary public figure
A public official, whose official status is relevant to the expression

95
Q

DEFAMATION
Public Nature of the Matter
(Determining Factors)

FCC

A

FCC

Form, Content, Context

Content, such as the subject matter of a lawsuit
Form, such as a telephone conversation or a newspaper story
Context, such as overarching public controversy

96
Q

DEFAMATION:
PUBLIC FIGURE OR PUBLIC OFFICIAL
SPECIAL RULES

BAD APE

A

BAD APE

Burden, Actual, Damages, Appeal, Proved, Expression
Expression “of and concerning the plaintiff”
Actual malice as to falsity for any damages
Actual malice as to falsity proved by clear and convincing evidence
Plaintiff’s burden to prove falsity of fact
Recovery only for actual damages proved, and no presumed damages
AND
On appeal, independent review of the factual record to ensure that actual malice as to falsity is supported by substantial evidence

97
Q

DEFAMATION:
SUBJECT MATTER IS ONE OF PUBLIC CONCERN
SPECIAL RULES

A

At least negligence as to falsity for any damages
Actual malice as to falsity for presumed damages
Actual malice as to falsity for punitive damages
AND
Proof of actual malice, when required, by clear and convincing evidence

98
Q

INTERFERENCE WITH CONTRACT

IC PIPE

A

IC PIPE

Intentional, Contract, [not to] Perform, Improper, Pecuniary, Expensive

Intentional interference
Improper interference
Interference with contract (except to marry)
Interference by inducing or causing a third party not to perform
OR by causing plaintiff’s performance to be more expensive or burdensome
AND
Resulting pecuniary loss

99
Q

INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE

IP PIPE

A

IP PIPE

Intentional, Prospective, Preventing, Improper, Pecuniary, Enter

Intentional interference
Improper interference
Interference with prospective contractual relationship (except to marry)
Interference by inducing or causing a third party not to enter into or continue a prospective contractual relationship with plaintiff
OR preventing plaintiff from acquiring or continuing a prospective contractual relationship
AND
Resulting pecuniary loss

100
Q

IMPROPER FACTORS

PROM SAC

A

PROM SAC

Proximity, Relations, [Interests of the] Other, Motive, Social, Advanced, Conduct

(Chiefly) nature of the actor’s conduct
Actor’s motive
Interests of the other with whom the actor interferes
Interests sought to be advanced by the actor
Social interests in protecting the freedom of action of the actor and contractual interests of the other
Proximity or remoteness of the actor’s conduct to the interference
Relations between parties

101
Q

WRONGFUL TERMINATION

A

Employment relationship existed
AND
Termination was contrary to public policy

102
Q

FTCA EXCEPTIONS

A

Discretionary policy judgments pursuant to legislative directives (number one exception)
Defamation and misrepresentation are excluded in variable culpability as well as for law enforcement
Certain specified activities, such as the postal services
Occurred abroad
Claim arises out of the combatant activities of military or navy during time of war
Certain specified torts, generally those that tend to arise from intent fault, except as to physical abuses by law enforcement officers

103
Q

Foreseeability (Traditional Rule)

DCCRPP

A

(DCCRPP, Defendant’s Conduct Compared to Reasonably Prudent Person)
Defendant’s
Conduct
Compared
To
Reasonably
Prudent
Person

104
Q

Foreseeability Factors (Modern Rule)

LSA

A

(LSA, Likelihood, Severity, Avoiding)
Foreseeable likelihood that defendant’s conduct would cause harm
Foreseeable severity of any resulting harm
Defendant’s burden in avoiding the harm

105
Q

Zone of Danger

ISED

A

Zone of Danger (ISED, Immediate, Serious Emotional Distress)
Defendant’s negligent conduct placed the plaintiff in danger of immediate bodily harm, AND
That danger caused the plaintiff serious emotional distress

106
Q

Bystander Rule

PARSED

A

Bystander Rule - based on the Dillon v. Legg case, where a child was killed by an automobile right in front of mother and mother was allowed to recover for emotional injury. Recovery allowed when (PARSED, Present and Aware, Related, Severe Emotional Distress)
The plaintiff is closely related to an injured victim (usually immediate family)
The plaintiff is present at the time of the injury-producing event and is then aware that the injury is occurring
AND
The plaintiff as a result suffers severe emotional distress, not abnormal under the circumstances, but as one might expect, beyond that of the disinterested witness

107
Q

Special Situations

NACCD

A

NACCD, Negligently, Announcement, Corpse, Contaminated, Distress)
Defendant negligently
Delivered erroneous announcement of death or illness
Mishandled corpse or bodily remains, OR
Contaminated food with repulsive foreign object
AND
Caused plaintiff serious emotional distress
Mishandling of a corpse does not need to be witnessed by the plaintiff

108
Q

Negligent Misrepresentation

NFC RCK

A

Negligent Misrepresentation (NFC RCK, Negligently, False, Course, Relied, Contractual, Known)
Defendant negligently provided false information during the course of their business or profession
Plaintiff justifiably relied upon the false information and suffered pecuniary loss as a result
Plaintiff was in a contractual relationship with the defendant or was a third party known by the defendant as one for whose benefit the information was supplied
A defendant who negligently provides information for a particular purpose is not liable for the plaintiff’s financial loss if the plaintiff used the information for a different purpose

109
Q

Factors for Calculating Compensatory Damages

HC HT HM

A

Factors for Calculating Compensatory Damages (HC HT HM, Harm Caused, Harm Traceable, Harm Mitigated)
Initial Physical Harm caused by defendant’s negligent act
Subsequent Harm (physical, economic, emotional) that is traceable to initial harm
Steps taken by the plaintiff to mitigate that initial harm

110
Q

Intentional Interference w/ Contract
Elements

IIIPL

A

Intentional Interference w/ Contract
Elements (IIIPL, Intentional, Improper, Interference, Perform[/ance], Loss)
Intentional interference
Improper interference
Interference with contract (except to marry)
Interference by inducing or causing a third party not to perform, OR by causing plaintiff’s performance to be more expensive or burdensome
AND
Resulting in pecuniary loss

111
Q

Deadly Force

FPP

A

Deadly Force - the defendant may use deadly force only if the defendant reasonably believes that (FPP, Force, Peril, Prevent):
The plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force upon the defendant
The defendant is thereby put in peril of either death, serious bodily harm, or rape by the use or threat of physical force or restraint; and
The defendant can safely prevent the peril only by the immediate use of deadly force

112
Q

When can Merchant’s Privilege be used

IRA

A

When can Merchant’s Privilege be used (IRA, Investigating, Recapturing, Arrest)
Investigating
Recapturing
Facilitating an arrest

113
Q

A merchant is entitled to Merchant’s Privilege when the merchant

BTP

A

A merchant is entitled to Merchant’s Privilege when the merchant (BTP, Believes, Taken, Pay)
Reasonably believes that the other has wrongfully
Taken/is attempting to take merchandise, or
Failed to pay

114
Q

Merchant’s use of force must be

PRT

A

Merchant’s use of force must be (PRT, Premises, Reasonable, Time)
On or near the premises,
Reasonable, and
For a reasonable time

115
Q

Assault
Elements

AIDI

A

Assault
Elements (AIDI, Apprehension, Imminent, Defendant’s, Intent):
The plaintiff’s reasonable apprehension
Of an imminent harmful or offensive bodily contact
Caused by the defendant’s action or threat
With the intent to cause either the apprehension of such contact or the contact itself

116
Q

Public Nuisance Alternate Elements

PUSH PPVS

A

Public Nuisance Alternate Elements (PUSH PPVS, think: Push Pay-Per-ViewS, Public, Unreasonable, Safety, Health, Peace, Property, Violated, Special)
Condition interfered with a public right (such as a noxious smell)
The interference was unreasonable, meaning it either
Significantly affected public health, safety, peace, or property rights
OR
Violated an ordinance, statute, or administrative regulation
AND
The plaintiff suffered special damages (different from the public at large)

If a private individual brings a public nuisance claim, it must have suffered harm that was different from the public at large

117
Q

Private Nuisance

IFOUSDD

A

Private Nuisance - a thing or activity that substantially and unreasonably interferes with another individual’s use and enjoyment of his land
Elements (IFOUSDD, Interference, Fault, Outweighs, Undue, Suited, Double Duty)
Substantial interference by defendant from its land with plaintiff’s use and enjoyment of its land, according to the experience of an ordinary member of the community
AND
Either
Fault, meaning intent to act and knowledge with substantial certainty in the interfering result; AND interference that is unreasonable, meaning:
Gravity of harm outweighs the utility of defendant’s conduct
Defendant can avoid the harm in whole or in part without undue hardship
OR
Plaintiff’s use and enjoyment is well suited to the character of the locality, while defendant’s is not
OR
Fault, meaning defendant’s double-duty intent, recklessness, negligence, or abnormally dangerous activity

118
Q

Private Nuisance BASICS

SU

A

BASICS (SU, Substantial, Unreasonable) - Liability for private nuisance arises when a defendant’s interference with the use and enjoyment of the plaintiff’s property is both:
Substantial - offensive, inconvenient, or annoying to a normal, reasonable person in the community - AND
Unreasonable - effectively renders the land unavailable for ordinary use or enjoyment by the possessor and satisfies one of the Private Nuisance Subtypes
Thus, a plaintiff who is not bothered by an interference with the use and enjoyment of his property (called a “thick skinned plaintiff”) can still prevail so long as a normal, reasonable person in the community would find the interference offensive, inconvenient, or annoying

119
Q

Private Nuisance Subtypes

PLASM

A

Private Nuisance Subtypes (PLASM, Per se, Location, Avoidable, Severe, Malicious)
Per se nuisance - defendant’s conduct, in & of itself, is a nuisance
Conduct Unsuited to Location - Defendant’s conduct is unsuited to location and plaintiff’s use & enjoyment of property are suited to location
Avoidable Harm - Defendant’s failure to exercise reasonable care regarding risk of harm caused interference
Severe Harm - Plaintiff’s land or fixtures sustained physical damage
Malicious Conduct - Defendant’s activity or condition created by defendant is motivated entirely or almost entirely by malice

120
Q

Special Relationships imposing a duty to protect others

ECC SHIP

A

Special Relationships imposing a duty to protect others (ECC SHIP, Employer, Carrier, Custodian, Shopkeeper, Hospital, Innkeeper, Parent)
Parent/Child
Hospital/Patient
Employer/Employees
Shopkeeper/business invitees
Common Carrier/Passengers
Common Carriers are NOT strictly liable; rather, they are liable for injuries resulting from a failure to provide the highest level of care consistent with business operations
Custodian/Person in custody
Innkeeper/guests

121
Q

SL Intrusion by Livestock

FILTH

A

SL Intrusion by Livestock (FILTH, Foreseeable Intrusion Land, Typical Harm)
Foreseeable intrusion of livestock onto land of another and
Intrusion causes physical harm typical of livestock
Strict liability for livestock is limited to the owner of the livestock, not to the owner of the land on which the livestock is grazing, unless the landowner had the right to possess the animals

122
Q

SL Wild Animals

U LURCH

A

SL Wild Animals (U LURCH, Undomesticated, Likely, Unless Restrained, Caused Harm)
Category of typically undomesticated animal
Likely to cause personal injury
Unless Restrained and
Animal caused physical harm due to animal’s abnormal danger

123
Q

SL Abnormally Dangerous Animals

TKH

A

SL Abnormally Dangerous Animals (TKH, Tendencies, Knows, Harm)
Animal with dangerous tendencies other than what animals in that category typically lack (i.e. rapid dog)
Owner/possessor knows or should know of danger and
Physical harm results from that danger

124
Q

Strict Product Liability
Elements

SBDCH

A

Strict Product Liability
Elements (SBDCH, Seller, Business, Defective, Caused, Harm)
Defendant is a seller/distributing of the product
Defendant is in the business of selling/distributing the product
Product is defective
Defect proximately caused the harm alleged
AND
The harm was to person or property

125
Q

Design Defect Elements

FANS

A

Design Defect Elements (FANS, Foreseeable, Alternative, Not Safe) - no liability for “good whiskey” or “good tobacco,” because while unavoidably dangerous, it is common knowledge
Foreseeable Risk - manufacturer knew or should have known
Reasonable Alternative Design - risk vs. utility balancing
AND
Not Reasonably Safe (tests vary jurisdictionally) - self-referential, Wade factors, or consumer expectations test

126
Q

When the plaintiff is a public figure, the defendant must have acted with actual malice, which requires

KFR DTF

A

When the plaintiff is a public figure, the defendant must have acted with actual malice, which requires (KFR DTF, Knowledge False, Reckless Disregard Truth Falsity):
Defendant either
Had knowledge the statement was false, OR
Acted with reckless disregard as to the truth or falsity of the statement

127
Q

If a child trespasser realizes that a situation is dangerous, how does that impact the situation’s application to the attractive nuisance doctrine?

A

In order for the attractive nuisance doctrine to apply, the child, due to his youth, must not appreciate the danger presented by the condition. Even if there are adequate warnings, if the child does not believe that the warnings are accurate and that instead the situation is actually NOT dangerous, this will serve to help establish attractive nuisance.

128
Q

Does a reasonable mistaken belief about ownership of property defeat a claim for conversion when a party intentionally deprived the owner of their property bought thought it was theirs (defendant’s)?

A

NO.

A mistaken belief (even if reasonable) that the defendant legally possessed the chattel subject to conversion does not absolve the defendant from liability for conversion.

129
Q

What type of harm is required in a strict products liability claim under the economic loss doctrine?

A

The economic loss doctrine prohibits strict product liability claims for purely economic loss. There must be proof of physical harm. Physical harm can include bodily or property damage, but cannot be limited to only harm to the defective product itself.

130
Q

What does a successful libel suit require?

A

Plaintiff must prove:
1. EITHER
…a) The defendant knowingly made a false statement about the plaintiff
…OR
…b) Negligently failed to determine its falsity (failed to use reasonable care)
2. That type of statement would tend to harm the plaintiff’s reputation
AND
3. The defendant intentionally or negligently communicated that statement to a third party

131
Q

Is a service provider using a defective tool that they did not manufacture strictly liable for the defects in the product?

A

NO.

Someone who merely used a defective product to provide a service is not subject to strict products liability for any harm to persons or property caused by the defect.

132
Q

What is a superseding cause and how does it function to relieve the tortious actor from liability?

A

A superseding cause is an unforeseeable intervening cause.

Because it is unforeseeable, it can function to BREAK the chain of causation between the defendant and the plaintiff

133
Q

Can a doctor’s misdiagnosis that causes a patient to go into shock as a result give rise to a Negligent Infliction of Emotional Distress claim?

A

YES.

When a defendant has a special relationship with a plaintiff, such as a doctor-patient relationship, the defendant can be liable for negligent infliction of emotional distress for conduct such as misdiagnosing an illness that causes the plaintiff to suffer a severe emotional reaction.

134
Q
A

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