Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Bar - Civ Pro > Torts > Flashcards

Torts Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

3 elements for a prima facie case in intentional tort

A

(1) voluntary act
(2) intent (specific or general)
(3) causation (but for or substantial factor)

Note on Intent
Involuntarily actions (through a seizure, while sleeping or drugged against one’s will) lack the requisite intent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

2 requirements for the tort of intentional battery

A

(1) Harmful or offensive touching; AND
(2) With the plaintiff’s person.

  • Offensive - without consent
  • Contact need not be instantaneous
  • Indirect contact sufficient (e.g., put something in P’s path to make them fall)
  • P need not be aware of the contact; the tort is the contact.
  • Damages: Actual damages need not be proven. P can recover nominal, or punitives for malice.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

2 requirements for intentional tort of assault

A

(1) Reasonable apprehension of plaintiff; AND
(2) Of imminent battery (harmful or offensive touching)

  • Knowledge is not required.
  • Knowledge of D’s identity or location not required.
  • Words alone are always insufficient

Damages: Actual damages need not be proven. P can recover nominal, or punitives for malice.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

2 requirements for intentional infliction of emotional distress

A

(1) Extreme or outrageous conduct judged by a reasonable standard; AND
(2) That causes severe emotional distress.

Extreme and outrageous - exceeds all bounds of human decency in civil society.
Mere insults and abuse insufficient (unless abuse of sensitivity)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

For IIED what are 4 hallmarks of outrageousness

A

Conduct repetitive in nature

Defendant common carrier or innkeeper

Plaintiff member of a fragile class (young, elderly, pregnant)

D knows of P’s sensitivity and targets it

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What causation and damages are required in IIED

A

Actual cause only for all intentional torts

 Note: Actual emotional damages are required so P must have sought treatment. Physical injury is not required. This makes IIED the only intentional tort that requires proof of damages.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Extra element for public figures and an IIED claim?

A

When public figures, statement must be made with malice.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

3 requirements if a bystander claim for IIED

A

(1) Present when injury occurred;
(2) D knew bystander present; AND
(3) Bystander suffered physical harm or is close relative to victim.

Again, plus actual causation and damages.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

3 elements for intentional tort of false imprisonment

A

(1) Confinement of plaintiff within fixed boundaries;
(2) With no reasonable means of escape known to P; AND
(3) P is conscious of or harmed by the confinement.

Notes
- Failure to act can constitute restraint if legal duty to do so (wheelchair example)
- Threats to P or to his valuable property sufficient
- Moral or social pressure is insufficient
- Not reasonable means of escape
* Dangerous
* Hidden
* Disgusting
* Humiliating
- Mistake of identity nor good faith belief the confinement is justified is an excuse.
- Damages: Actual damages need not be proven. P can recover nominal, or punitives for malice.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Define one rule statement for intentional tort of trespass to land

A

Physical invasion on another’s property.

o Physical invasion of the plaintiff’s land.
Invasion must be tangible
* Light or sound is insufficient (could be nuisance claim)
 Land includes soil and air to reasonable distance
 P must possess the land or entitled to or was the last occupier.

 No harm required
 Mistake concerning title, consent, right to possession, etc., is no defense.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

one line rule for intentional tort of trespass to chattel

A

unreasonable interference with one’s personal property

 No wrongful intent is required. The intent is merely to act on the chattel. Good faith mistake is no defense.
 Dispossession (barring access as an example) even for a short time is sufficient.
 If trespass consists of physical contact, P must prove actual damages. But any dispossession can yield even nominal damages.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

2 line rule for conversion

A

unreasonable interference with plaintiff’s personal property serious enough to warrant D may full value of property

 In essay, run both trespass to chattel and conversion
 Good faith mistake is no defense.
 Damages: P can recover full property value (damages) or possession (replevin)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Define doctrine of transferred intent in torts

A

Under the doctrine of transferred intent, intent will transfer from the intended tort to the complete tort, and from the intended victim to the actual victim. This doctrine applies to battery, false imprisonment, assault, trespass, and trespass to chattel. BFATT

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What are the 3 broad types of defenses to intentional torts?

A

(1) Consent
(2) Necessity
(3) Privileges

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

2 rules for consent

A

(1) Consent valid
(2) Act within scope of consent

Defense to all intentional torts but majority view is that consent cannot apply to a criminal act
o Examples: No fraud, duress, incapacity, etc.
o Implied usage includes custom and usage

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Define private necessity

A

Private necessity is a partial defense where an individual commits the tort to protect himself or a few individuals. The defendant is liable for any property damage though will not be liable for punitive damages. The privilege trumps a landowner’s right to protect one’s land, and the landowner must allow the person to stay on the land until an emergency is over. The landlord may not use force to exclude the defendant.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Define public necessity

A

Public necessity is a complete defense where the defendants acts to protect the public. The defendant is not liable for any compensatory damages.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

3 types of protective privileges for intentional torts

A

(1) Self defense/defense of others
(2) Defense of property
(3) Shopkeepers privilege

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

2 requirements for self defense (same as for defense of others)

A

(1) reasonable belief of imminent harm;
(2) proportionate force.

Note: Cannot be initial aggressor unless other party responds to non deadly force with deadly force

o No duty to retreat
o A request to desist is not required if the request would be futile or dangerous
o Reasonable mistakes are allowed – where the mistake involves whether an intrusion has occurred or whether a request to desist is required.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

general rule for defense of property

A

A person may use reasonable force to protect their property but may not use deadly force

 Includes vicious dogs, traps, spring guns on trespassers

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

rule for when chattel lawfully taken and then kept

A

Owner may only use peaceful means to recover the chattel

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

rule for when chattel wrongfully taken

A

Owner may use reasonable force to recapture chattel, wrongfully and forcibly taken, even under a claim of right. D must be in fresh pursuit, and must first demand return, unless such a demand would be futile or dangerous.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Define 3 requirements for shopkeeper privilege

A

Shopkeeper may detain an individual where
(1) reasonable belief person stole items;
(2) detain for reasonable time; AND
(3) detain in reasonable manner.

Note: Defense to false imprisonment claim and can also work for assault or other tort

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

are the children and mentally insane capable of liability for an intentional tort?

A

yes.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

listen to note on damages for intentional torts

A

o Compensatory damages (e.g., for damages during trespass)
o Punitive damages (e.g., for defendant’s malicious intent and ill will)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

4 elements for a prima facie case of negligence

A

(1) D owed P a duty of care
(2) D breached duty
(3) D actually and proximately caused P’s injury
(4) P incurred damage to person or property.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

general duty rule including who is foreseeable

A

A duty is owed to all foreseeable victims. Foreseeable victims are those within the “zone of danger”

 Rescuers are foreseeable; firefighters and officers will be barred and do not have a claim.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

What is the default standard of care?

A

The default standard of care is that of a reasonably prudent person under similar circumstance. This is an objective standard without regard to one’s shortcomings except for physical disabilities (e.g., a blind person is held to a reasonably prudent blind person under similar circumstances)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

What is the rule for the standard of care for intoxicated and other people?

A

Intoxicated people are held to the same standard of care as sober people unless the intoxication was involuntary

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

what is the standard of care for children?
2 age brackets and an exception

A

0-4 years - not liable
5 -18 years
subjective standard where held to same standard as that of a child of like age and experience under similar circumstances
exception
Child engaged in adult activities held to RPP (e.g., operating a motorized vehicle, boat)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

what is the standard of care for professionals?

A

A professional is held to the standard of care of an average professional in the field, drawn on a national basis.

  • Note: Average, not reasonable. Do NOT say ‘reasonable doctor’
  • Physicians held to a national standard of care and have a duty to disclose the risks of treatment so a patient may give informed consent.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

when 2 elements for when a psychologist has a duty to warn?

A

(1) patient has ability to carry out threat to a third party; AND
(2) potential victim identifiable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

what is the standard of care for one with superior knowledge?

A
  • Rule: A D with superior skill or knowledge is required to exercise that experience.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

regarding premise liability - what are 4 types of groups that can come on ones land

A

unknown trespasser
known or anticipated trespasser
licensee
invitee

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

what duty is owed to an unknown trespasser?

A

no duty is owed.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

what is the duty owed to a known or anticipated trespasser?

A

the owner must warn of
artificial conditions
that are extremely dangerous (death/sbi risk)
that are concealed to the person
and known to the owner

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

define a licensee

A

a licensee enters as a social guest without financial benefit to the landowner

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

what duty to warn or make safe is owed to licensees

A

must warn or make safe of conditions

concealed to guest
known to landowner

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

define invitee

A

invited to land for business purpose or because land open to public

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

what is duty owed to invitee?

A

duty to warn or make safe

concealed to guest
known or could have known to landowner by reasonable inspection

 Note: Repair is not required; warning will suffice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

duty owed to firefighters and police?

A

no duty is owed for those dangers inherent with the job, even if the injuries are caused due to another’s negligence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

4 requirements to be liable under attractive nuisance to children

A

(1) dangerous condition owner knew or should have known about;
(2) owner knew children may trespass;
(3) children due to age do not appreciate the harm; AND
(4) expense to repair is small versus the risk to children

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

what is the duty owed by owners of a recreational land (no fees charged)?

A

Not liable unless maliciously failed to make safe or warn

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

when may a criminal statute replace the standard of care (under negligence per se)?
2 requirements

A

(1) P part of protected class; AND
(2) Statute meant to protect the type of harm P suffered

  • Note: Violation of statute establishes duty and breach. Prove causation & damages.
  • Note: If the statute in question provides for a civil remedy, the plaintiff will sue directly under the statute: i.e., it is not a common law negligence case.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

2 exceptions to where statute will not be enforced?

A

(1) impossible to comply
(2) compliance more dangerous than a violation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

what is the rule on affirmative duty to act?

A

generally, there is no affirmative duty to act.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

in what 3 situations will an affirmative duty to act arise?

A

(1) D created the peril
(2) D attempted to rescue and put P worse off (though Good Samaritan laws will help insulate P from liability)
(3) Special relationship between parties
Common carrier/passenger, innkeeper/guest, family members

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
48
Q

Header sentence for NIED and what must be proved for all them - related to standard of care

A

Negligent infliction of emotional distress occurs where the defendant’s negligence causes the plaintiff severe emotional distress.

For all: D’s conduct was extreme and outrageous (fell below standard duty of care)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
49
Q

3 situations within Negligent Infliction of Emotional Distress (NIED)

A

(1) Zone of Danger
(2) Bystander Not in Zone of Danger
(3) Special relationship

 NIED must be proven in addition to proving causation and damages

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
50
Q

2 requirements for Zone of Danger

A

(1) P within zone of danger; AND
(2) Emotional distress and physical symptoms.

In minority, physical symptoms not required.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
51
Q

4 requirements for bystander outside of danger

A

(1) Bystander outside of zone of danger;
(2) Bystander present at scene and witnessed or perceived injury;
(3) Closely related to person injured; AND
(4) Emotional distress plus physical damages.

In minority, physical damages not required.

Plus actual and proximate cause and damages.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
52
Q

Special relationship - 2 requirements

A

(1) Special relationship; AND
(2) Severe emotional distress.

Examples
- Mishandling of dead bodies
- Providing false medical info

PLUS Actual and Proximate Cause for all 3

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
53
Q

define breach

A

breach occurs where the defendant’s conduct falls below the requisite standard of care

 Breach can be an affirmative act or failure to act

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
54
Q

define the term for when you want to show there is a breach but the plaintiff lacks evidence

A

res ispa loquitor (i.e., the thing speaks for itself)

55
Q

2 requirements for the plaintiff invoking res ispa loquitor

A

(1) Accident is the type normally associated with negligence; AND
(2) Instrumentality causing injury was within D’s exclusive control

Note: Does not mean possession

56
Q

listen to notes on res ispa loquitor

A
  • Establishing res ispa loquitor means there will be no JMOL. The P has made a prima facie case for negligence
  • Res ipsa loquitur does not establish breach of duty as a matter of law. It is still up to the trier of fact to accept or reject the evidence. P can still lose if this inference of negligence is rejected by the trier of fact.
57
Q

define 2 types of causation

A

actual cause
proximate cause

58
Q

define actual cause

A

D’s conduct must be the but for cause of P’s injury where but for the D’s conduct the injury would not have occurred

59
Q

what are two other types of actual cause

A

substantial factor
unascertainable cause

60
Q

when do you use substantial factor test for actual cause

A

where multiple defendants injured the plaintiff, a defendant is liable if his actions were the substantial factor in causing P’s injury. if multiple defendants actions are the substantial factor, the defendants will be held jointly and severally liable

61
Q

when do you use the unascertainable causes test for actual causation and how is it met

A

where multiple defendants exist but it is unclear which caused plaintiff’s injury, the burden shifts to the defendant to show they did not cause the P’s injury

62
Q

define proximate cause

A

P’s injury must be foreseeable to the D. Foreseeable does not mean the P used the product as intended. Acts that are not foreseeable (superseding acts) cut off the chain to any liability

Foreseeability Guidelines
o Passage of time
o Geographic distance
o Prior occurrence
* Example: Acts of criminals could be foreseeable if every day the passenger and the driver commuted through this dangerous neighborhood.

63
Q

4 types of intervening force where foreseeable

A

(1) medical malpractice
(2) negligence of rescuers
(3) protection or reaction forces
(4) subsequent accident or disease

64
Q

what is the general rule on damages

A

A defendant is liable for all damages, even if the extent of the damages are great in scope (i.e., through the application of the egg shell doctrine)

 Note This doctrine is not limited to negligence claims.

65
Q

what kind of damages in negligence are not allowed as sole damages

A

economic damages

66
Q

listen

A

 Personal injury: Economic, non economic (pain and suffering), emotional distress
 Property damage: No emotional distress damages even if another party kills your pet
 Punitive damages: Granted if D’s conduct malicious
 Collateral Source: Damages not reduced just b/c P receives benefits from other sources

67
Q

define the rules for joint and several liability and the rule for contribution

A

Where multiple defendants are jointly and severally liable for the plaintiffs injuries, the plaintiff can collect damages from any defendant she chooses. Such a defendant can seek contribution (repayment) for their fair share of the damages that must be awarded.

Note: Contribution is not allowed in intentional torts

68
Q

define indemnification

A

Indemnification allows a passive tortfeasor who was forced to pay damages to collect full reimbursement from an active tortfeasor

 You can only go up the chain to get reimbursed (e.g., retailer can go to manufacturer; manufacturer cannot go to retailer

69
Q

2 types of cases where indemnification can be applied?

A

(1) strict liability
(2) vicarious liability

70
Q

3 defenses to negligence

A

contributory negligence
comparative negligence
assumption of the risk

71
Q

define contributory negligence and its 2 exceptions

A

Under contributory negligence, a plaintiff is barred from recovery if they are at all negligent. An exception exists where (1) under the last clear chance doctrine where the defendant had an opportunity to avoid injury to the plaintiff but failed to take such opportunity, and (2) the defendant was engaged in willful conduct

72
Q

defined comparative negligence and its two types

A

comparative negligence reduces a plaintiff’s amount of recovery where the plaintiff is also negligence

in pure comparative states, the plaintiff’s recovery is reduced by her amount of fault, which is a decision of the trier of fact

in modified comparative negligence states, the plaintiff is fully barred from recovery if her degree of fault is equal or exceeds the defendant’s degree of fault

73
Q

3 areas where strict liability can apply

A

(1) animals
(2) abnormally dangerous activities
(3) strict product liability

74
Q

header sentence on SL - what duty does it impose

A

strict liability imposes an absolute duty to make safe. the reasonableness of the defendant’s conduct is irrelevant.

Note - STILL MUST PROVE CAUSATION AND DAMAGES

75
Q

rule for domesticated animals and 2 exceptions

A

An owner of domesticated animals is not strictly liable for the injury caused by the animal unless
(1) the owner knew or had reason to know of the animal’s dangerous propensities
(2) the animal trespassed

76
Q

listen to content on domesticated animals

A

 Note: This rule applies even if the animal has never injured anyone.
 Note: Strict liability is not available to trespassers.
 Cross Over Issue – Guard dog bites – go for intentional tort of battery
 Examples: Cattle, sheep, horse, cat, domestic bee, dog, mule, bull, stallion, parrot, goat
NOTE: No duty to trespassers related to domestic animal injuries

77
Q

what is the rule for wild animals and the two exceptions?

A

An owner of wild animals is strictly liable for the harm caused by the animal unless
(1) trespasser
(2) public function (e.g., zoopkeeper)

Note: Injury must be of the type caused by this type of animal.

78
Q

what is the rule for abnormally dangerous activities

A

A defendant is strictly liable to those who engage in abnormally dangerous activity. The harm must be the kind of harm that results from dangerous propensity

79
Q

what defines an abnormally dangerous activity - 2 factors

A

(1) uncommon for the area
(2) nearly impossible to make safe despite precautions

80
Q

What are the 7 legal theories for a product liability claim?

A

(1) Negligence
(2) Strict liability
(3) UCC Implied Warranty of Merchantability
(4) UCC Implied Warranty of Fitness for a Particular Purpose
(5) Express breach of warranty or misrepresentation
(6) Battery
(7) Other intentional tort like IIED - requires showing of damages

Note on representation
* Material fact (puffery OK) and seller intended to induce reliance and plaintiff justifiably relied

Note on battery
* Claim will likely fail, because P will not be able to show that D had the intent solely by making a defective product

81
Q

Define UCC Implied Warranty of Merchantability

A

Merchant warrants that the goods are fit for their ordinary purpose. This means the product should be reasonably safe for average use.

82
Q

Define UCC Implied Warranty of Fitness for a Particular Purpose

A

Seller warrants goods are fit for a particular purpose as provided by seller and relied and reasonably relied upon by buyer

  • Purchaser and their family, household, guests
  • Personal injury and property damage, and solely economic loss OK
  • Disclaimers usually upheld
83
Q

7 elements for product liability

A

(1) Proper plaintiff
(2) Merchant seller
(3) Product defective when left D’s control
(4) Product not materially altered
(5) Foreseeable use of product
(6) Causation - actual and proximate
(7) Damages

84
Q

Define proper plaintiff

A

Under the traditional rule, the plaintiff must have been in privity of contract with the seller. Modernly, any user or foreseeable bystander may be a plaintiff.

85
Q

Define D is a commercial supplier

A

D must be a commercial supplier and a claim can be brought against any commercial supplier in the distribution chain

86
Q

Define 3 forms of product defect

A

(1) Manufacturing
(2) Design
(3) Information

87
Q

Define manufacturing defect

A

A manufacturing defect exists when one item is manufactured differently from the rest.

88
Q

Define design defect and test

A

Under the consumer expectation test, a product suffers from a design defect where the product is more dangerous than the average customer would expect. In doing so, the plaintiff must also prove that a feasible alternative exists (i.e., in cost, practicality)

89
Q

Define information defect

A

An information defect exists where the defendant does not provide warnings about non-obvious risks

90
Q

3 requirements for adequate warnings

A

(1) Prominent
(2) Comprehensible
(3) Provide information about mitigating risk

91
Q

What is the learned intermediary rule?

A

Manufacturers of drugs are not liable under failure to warn claims if they properly informed the physician of the risk

92
Q

on foreseeable use
and on on actual and proximate cause

A
  • Misuse and inappropriate uses can be foreseeable

Negligent failure of an intermediary to discover a defect is foreseeable and thus does not cut off the supplier’s strict liability.

93
Q

define damages

A

for both negligence and SL, personal injury and/or property damage are required

 Note: Disclaimers are irrelevant in strict liability cases

Note on negligence
Intermediaries usually not liable for negligence because they can usually satisfy their duty through a cursory inspection.

94
Q

3 defenses to bring up on any negligence or strict liability claim

A

(1) Assumption of risk
(2) Contributory negligence
(3) Comparative responsibility

95
Q

Define vicarious liability

A

Vicarious liability imposes liability on a passive tortfeasor for the actions of another party based on their relationship

96
Q

5 relationships involving vicarious liability

A

(1) employer employee
(2) independent contractors
(3) business venture
(4) parent child
(5) car owner and driver

97
Q

Define respondeat superior

A

Under the doctrine of respondeat superior, the employer or a principal could be held vicariously liable for an unlawful or unjust act of an employee or an agent. For the employer or the principal to be vicariously liable under respondeat superior, the employer or the agent must commit the wrongful act while working in the scope of the employment or agency.

98
Q

Define frolic and detour

A

A detour, a minor deviation from the course of employment (e.g., to grab lunch) is considered within the scope of employment while a frolic (a major deviation in geography and time) is not within the scope of employment

99
Q

3 situations where employer liable for the intentional torts of their employees

A

(1) IC furthering employer’s purpose
(2) Force authorized by employment (e.g., a bouncer)
(3) Friction generated by the employer (e.g., a bill collector)

100
Q

What claims may arise under an employer’s own negligence?

A

(1) negligent hiring
(2) negligent supervision

101
Q

rule for vicarious liability as it relates to independent contractors and the 2 exceptions?

A

An employer is not vicariously liable for the actions of their independent contractors except when
(1) engaged in abnormally dangerous activities
(2) non delegable duty (e.g., keeping premises safe for customers)

 Example: If IC cleaning store and hurts customer, business owner liable.

102
Q

rule for car owner and driver and 2 exceptions

A

A car owner is not vicariously liable for the negligence of the driver unless
(1) Permissive use jurisdiction (where owner gave permission)
(2) Family jurisdiction (where member of family or household and owner gave consent)

103
Q

rule related to vicarious liability and a parent and child?

A

Parent not VL for child’s torts (but statutes may impose liability for intentional torts)

104
Q

rule related to vicarious liability for partners and joint venturers?

A

Imputation if acting within scope of partnership or joint venture

  • Note: Regardless of whether vicarious liability applies, the defendant can be liable for his own negligence, e.g., negligence in hiring the employee, supervising the child, or entrusting the car to the driver
105
Q

Listen to Survival Statutes and Wrongful Death

A

o Survival statutes preserve a victim’s cause of action after his death, except for torts involving intangible personal interests (e.g., defamation)
o Wrongful death statutes permit a personal representative or surviving spouse to recover damages from a tortfeasor for loss of the decedent’s support and companionship
o Loss of Consortium - claim by spouse of injured party
 Loss of household services
 Loss of society/companionship
 Loss of sex

106
Q

Listen to tort immunity

A

Rule: Traditional view was that one member of a family could not sue another in tort for personal injury. Today, most states have abolished spousal immunity, so spouse can sue other spouse.

Rule: Children cannot sue parents for their exercise of parental supervision

Government
 Most torts: immunity attaches
 Discretionary acts: immunity
 Ministerial acts (do not require judgement, operational tasks): no immunity

107
Q

2 requirements for private nuisance

A

(1) Substantial, unreasonable interference; AND
(2) With the use and enjoyment of property

108
Q

2 requirements for public nuisance

A

(1) Substantial, unreasonable interference; AND
(2) With the rights of the community at large

109
Q

What is required for private individual to sue under public nuisance

A

Unique injuries not suffered by the public at large

NOTES on Nuisance
o P must actually possess or have a right to possession of the property.
o Hypersensitivities are not taken into account in nuisance cases. An objective standard is used.

110
Q

Is ‘she came to the nuisance’ a defense when being sued for nuisance?

A

No. So long as the P purchased the property in good faith and not for the sole purpose of bringing a lawsuit, she might have a viable claim.

111
Q

6 elements to defamation

A

(1) Defamatory statement
(2) Of or concerning the plaintiff
(3) Published to a third party
(4) False
(5) Fault
(6) Damages

112
Q

Define a defamatory statement

A

The statement must adversely affect one’s reputation. Statements of opinion are not defamatory though such statements may be actionable if they imply facts.

113
Q

Define Of or concerning the plaintiff

A

The statement must name the plaintiff or contain sufficient identifying information. Where a small group is mentioned, everyone in the group may have a claim while if a large group is mentioned, this is not the case.

Recall: P must be alive to have a claim.

114
Q

Define published to a third party

A

The statement must be made to someone other than the plaintiff and the third party must understand the plaintiff. Eavesdroppers or others for which their presence is unknown will not satisfy this requirement

115
Q

Define falsity

A

The statements must be fault

116
Q

Define fault

A

The proof required for fault depends on who the plaintiff is.

A private plaintiff must prove that the defendant acted with negligence in making the statement.

A public figure or limited public figure must prove that the defendant acted with malice in making the statement, in that the defendant knew the statement was false or acted with a reckless disregard for the truth.
If the plaintiff is a limited public figure, the statement must be related to the reason why they are a limited public figure, otherwise the fault level defaults to that of negligence.

117
Q

Define damages.

A

The degree of proof of damages depends on the statement.

For libel statements (those in permanent form), damages are presumed.

For slander per se statements, those that are so defamatory that an ordinary person would understand there is injury to reputation, damages are presumed. Slander per se statements constitute those that are in regard to:
(1) Business reputation
(2) Serious crime
(3) Loathsome or communicable disease
(4) Lack of chastity

For other types of slanderous statements, damages must be proven.

118
Q

2 major areas of defense to defamation

A

(1) Consent
(2) Absolute or Qualified Privilege

119
Q

2 types of absolute privilege

A

(1) Communications between spouses
(2) Government officers in connection with their work (e.g., legislators on the floor, remarks during judicial proceedings, federal executives in compelled broadcasts)

120
Q

Rule on qualified privileges

A

A qualified privilege exists where there is public interest in encouraging candor. Such a privilege may be lost if abused.

121
Q

define common interest privilege

A
  • Common interest – qualified privilege for statements made to colleagues at work
122
Q

Cross Over Issues
IIED
Invasion of Right to Privacy

A

On IIED and defamation, public figures may NOT recover for IIED from a media publication unless the statement was made with malice (knowing statement was false or reckless disregard for the truth)

123
Q

4 types of claims related to the privacy

A

(1) Commercial misappropriation
(2) Intrusion on Plaintiff’s Seclusion
(3) False Light
(4) Public Disclosure of Private Facts

124
Q

Define commercial misappropriation and the exception

A

Unauthorized use of the plaintiff’s image for commercial purposes.
Exception - newsworthy item on newspaper

Note: Not limited to celebrities

125
Q

Define intrusion on plaintiff’s seclusion

A

Intrusion on plaintiff’s private affairs that would be highly offensive to a reasonable person

o Examples: Eavesdropping, spying, interception of phone call. Not picture taken in public.

126
Q

Define False Light

A

Widespread dissemination of false information of someone that would be highly offensive to a reasonable person and in matters of public affairs, the plaintiff must prove the defendant acted with malice

127
Q

Define public disclosure of private facts

A

Public disclosure of private facts that would be highly offensive to a reasonable person.

Examples: Sharing medical records or income tax documents

Note: If public figure, might have difficult case because a lot of your information is not private

128
Q

2 Defenses to privacy claims

A

same as defamation

(1) Consent
(2) Absolute or Qualified Privilege

129
Q

4 requirements for fraud (intentional misrepresentation)

A

(1) Knew statement was false;
(2) Intended to induce reliance;
(3) Actually and justifiably induced reliance; AND
(4) Damages

130
Q

General rule and three exceptions on Duty to Disclose Facts

A

Generally there is no duty to disclose facts.
Exceptions
(1) Fiduciary relationship
(2) Selling real property with knowledge that buyer cannot detect issue
(3) Active concealment

131
Q

5 requirements for Negligent Misrepresentation

A

(1) Misrepresentation by one acting in a business or professional capacity;
(2) Breach of duty
(3) Causation
(4) Justifiable reliance
(5) Damages

Note: Applies in commercial setting

132
Q

4 requirements for interference with business relations

A

(1) Valid contract between P and a third party;
(2) D’s knowledge of the relationship;
(3) Intentional interference causing relationship to be breached or terminated;
AND
(4) Damages

o Note: Defendant’s conduct may be privileged if it is a proper attempt to obtain business or protect the defendant’s interests.

133
Q

4 requirements for malicious prosecution

A

(1) Initiating criminal proceeding that prosecution wins;
(2) Lack of probable cause;
(3) MALICE; and
(4) Damages

Bar - Civ Pro (13 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions