Torts Flashcards
Elements of Defamation
Statement specifically identifies the plaintiff
published to a third party
falsity - must be proved in case-in-chief
fault on part of the defendant - public figure/official (actual malice); private person (negligence)
damage to the plaintiff’s reputation
libel - defamation in permanent form (written or printed) no need for special damages, general damages presumed
slander - spoken defamation, must prove special damages unless
- adversely reflect on p’s business or profession
- serious crime
- serious sexual misconduct
- loathsome disease
4 types of invasion of privacy torts
1) misappropriation of name or picture
2) false light
3) intrusion of privacy
4) public disclosure of private facts
Misappropriation of name or picture
1) used plaintiff’s name or likeness
2) used for commercial advantage
Newsworthiness is a defense
False light
1) widespread dissemination
2) plaintiff’s beliefs, thoughts, or actions
3) in a false light
4) that would be highly objectionable to a reasonable person
If a public person or public concern, show actual malice
Intrusion of Privacy
1) intrudes into the private affairs of the plaintiff
2) plaintiff has a reasonable expectation of privacy
3) highly objectionable to a reasonable person
3rd person communication is NOT NEEDED
Public disclosure of private facts
1) widespread dissemination
2) of truthful private info
3) highly objectionable to a reasonable person
Slander
Oral defamatory statement and P always needs to prove special damages UNLESS it is slander per se
Slander per se
1) impugning business integrity
2) serious sexual misconduct
3) loathsome disease
4) crime of moral turpitude
Libel
Defamation in a permanent form and NO need for special damages unless
1) not slander per see
2) defamatory nature of the statement is not clear on its face
Defenses to Defamation
Absolute privilege – complete and applies in judicial proceedings between spouses, executive branch authorities, during legislative proceedings
qualified privilege – conditionally privilege and privilege isn’t abused
former/prospective employers made in good purpose, official proceedings reports, testimony in leg. proceedings, self defense, warn others about a harm or danger
Strict liability – wild and domesticated animals
1) domesticated animal will not be strictly liable for harm caused by the animal UNLESS the owner has knowledge of the naimal’svicious propensities
domestic – cats, dogs, farm animals
2) Wild animals are subject to strict liability for harm caused by animal regardless of safety precautions
also strictly liable for trespass and resulting damage (if reasonably foreseeable) and for harm arising from fleeing your wild animal
Strict liability for abnormally dangerous activity
A defendant is strictly liable for damages caused to a plaintiff when engaging in an abnormally dangerous activity
1) not common usage in the area
2) creates a foreseeable and highly significant risk of physical harm EVEN when reasonable care is exercised by all actors
Strict Products Liability Types
Manufacturing defect
Design Defect
Failure to Warn
Products liability factors
Regardless of wrongdoing or negligence, commercial supplier strictly liable if
1) product was defective from design or manufacturing or failure to warn
2) product not altered when reaches plaintiff
3) caused the injury when it was used for an intended or unintended foreseeable use
4) the defendant is a commercial supplier who routinely deals in the good
Evidence for a Manufacturing Defect
1) evidence product differs from the intended design
2) it is more dangerous than if made properly
Evidence for failure to warn
1) p was not warned of the risks
2) risks were not obvious to an ordinary user
Evidence of design defect
there is a way to build that is
1) safer
2) more practical
3) similar cost
Do nonpurchasers have standing to sue for products liability?
Yes, no privity is required.
Definition of Commercial Supplier
stict products liability claims can only be brought against a commercial seller or distributor of goods
1) engaged in the business of selling goods of the type
not casual sellers or service providers
Applies to all in the distribution chain unless you can show one of them made a significant change to the product
Products Liability – Negligence
requires
1) duty to the plaintiff (reasonably prudent supplier)
2) breach of duty
3) causation (actual and proximate)
4) damages
Who can be held liable for negligence in products liability?
All suppliers, distributors, retailers and it is owed to all foreseeable users and must act as a reasonably prudent supplier
What breaches the reasonably prudent supplier duty?
Causing the defect, a reasonable inspection of the product would have discovered the defect
Intentional interference with business relations
Must show
1) a k or business expectancy
2) defendant knows of the k/expectancy
3) defendant intentionally induces another party to breach the k or terminate the relationship
4) breach happens
5) p suffers damages
Defenses to intentional interference with business relations
Legitimate competitive activity (no dishonest, wrongful or illegal acts)
giving truthful info to another
having a financial interest in the party that breached the k or terminated
Honestly giving requested advice (think special relationships)
Intentional Misrepresentation
1) misrep of material fact
2) d knew the statement was false
3) intent of d to induce the p
4) actual and reasonable reliance by p
5) damages
Negligent misrepresentation
1) misrepresentation by d
2) supplied for guidance of others in business
3) d knew or should have know the info was supplied to guide the p
4) defendant negligent in obtaining or sharing the false info
5) actual and reasonable reliance by the p
6) false info proximately caused p’s damages
Silence generally not actionable unless
1) fiduciary, necessary to correct an earlier mistake, active concealment of facts, or person selling real property and knows material facts that affect property
Nuisance
Public – 1) unreasonable interference with 2) health, safety, or property rights of 3) community
Must show actual damages and must affect a considerable number of people
Private – 1) substantial and unreasonable interference 2) with person’s use or enjoyment of property
Must be offensive, inconvenient, or annoying to a reasonable person
Doctrine of Alternative Liability
Allows jury to find all defendants liable if
1) multiple defendants are negligent
2) it is unclear which one caused the plaintiff’s injuries
Joint and several liability
If multiple defendants are the proximate cuase of a single indivisible harm, then the plaintiff may recover the entire amount form any singe defendant (not double recovery)
Indemnification and Contribution
Indemnification – the defendant is a passive tortfeasor and seeks to assert his claim against active tortfeasor
D entitled to indemnification is entitled to full amount be paid or may have to pay to the p from the active tortfeasor
Contribution – a joint torfeasor may seek contribution from other joint torfeasors if he pays more than his percentage share of liability
Employee v. Independent Contractor
Employee – agent in an agent whom the employer controls (or has the right to control) the manner and means of the agent’s performance of work.
Independent contractor – person who contracts with another to do something for him, but who is not controlled nor subject to the other’s right to control with respect to his performance, The contractor may or may not be an agent.
Vicarious liability for acts of independent contractors
A principal is NOT vicariously liable for the torts of an independent contractor.
May be liable for torts committed by an independent contractor if
1) inherently dangerous activity
2) duty owed by principal is nondelegable
3) though the doctrine of estoppel where the principal holds the independent contract out as his agent to a third-party and third party reaosnbly relied on the care and skill of the contract and the third party suffered harm as a result of contractor’s lack of skill or care
Duty to a Licensee
A land possessor has a duty to warn or make safe hazardous conditions that are
1) concealed
2) known to the land possessor in advance
Duty to a Trespasser
No duty is owed to an undiscovered trespasser
Duty to a Known Trespasser
As to discovered or anticipated trespassers, the land possessor must warn of or make safe any conditions that are
1) artificial
2) highly dangerous (involving risk of death or serious bodily harm)
3) concealed
4) known to the land possessor in advance
Duty to an Invitee
An inviteeis owed a duty regarding hazardous conditions that are
1) concealed
2) known to the land possessor in advance or could have been discovered by reasonable inspection
Trespassing Children – Attractive Nuisance Doctrine
Plaintiff must show
1) dangerous condition that the owner is aware of
2) owner knows or should know that children might trespass the land
3) the condition is likely to cause injury (it is dangerous because of child’s inability to appreciate the risk)
4) expense of remedying the situation is slight compared with the magnitude of the risk
Child does NOT have to have been attracted by the dangerous condition and attraction ISN’T enough for liability
3 Types of Negligent Infliction of Emotional Distress
1) Near miss cases
2) Bystander cases
3) Special Relationship Between Plaintiff and Defendant
Near Miss Case Requirements
The plaintiff must prove
1) they were in the zone of danger
2) suffer physical symptoms from the distress
Bystander Cases
A bystander outside the zone of danger of physical injury who sees the defendant negligently injuring another can recover damages for their own distres as long as
1) plaintiff and victim are closely related
2) the plaintiff was present at the scene and personally observed or perceived the event
Special Relationship Case
A defendant may be liable for directly causing the defendant severe
