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Torts Flashcards

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1
Q

Ejectment?

A

action brought by P to recover possession of real property [restitutionary remedy]. Entitled to have D removed & receive MENSE damages based on loss of the use of land based on rental value of property OR benefit gained by wrongful possessor, whichever greater. No reimburse for improvements

(a) proof legal title; (b) proof P’s right to possession & (c) wrongful possession by D

  • Negligent or reckless entries no liability for trespass, but for damage
  • Non-negligent & unintentional no liability
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1
Q

INVASION OF PRIVACY: Intrusion into Seclusion?

A

D intentionally interferes w/ P’s seclusion

  • Invasion must be highly objectionable to a reasonable person
  • Damages include: emotional distress or punitive damages
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2
Q

Duty: 3rd Parties?

A

no duty to control 3rd party’s conduct, UNLESS

  1. Special relationship exists [parent/child]
  2. Providers of alcohol
  3. Misfeasance/Negligent omission - Δ fails duty
  4. No duty to protect another from 3rd party criminal acts.
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2
Q

Products Liability Warranty Theory: Defenses?

A
  • Disclaimer: UCC enables Def. to disclaim/limit its applicable warranty by sufficiently conspicuous writing [can’t limit personal injury]
  • Failure to notify seller: UCC provides that if buyer fails to notify seller of defect of breach of warranty w/in reasonable time after [should] discover [not applicable to harmed bystanders]
  • Contributory/comparative negligence: similar to strict liability in tort
  • Assumption of Risk: bars recovery
  • Only product harmed: Pl can only pursue breach of warranty claim.
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2
Q
A
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3
Q

False Imprisonment: confinement?

A

P is confined to a bounded area by use of physical barriers, [threats] physical force, failing to release P & by invalid assertion of legal authority

  • Pl. KNOWS OF REASONABLE means of escape then no confinement exists
  • Brevity of confinement is not at issue
  • Threats of reputational harm are generally insufficient
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4
Q

Breach of Duty:

Multiple Ds?

A

Defs acting as group, court can hold all Ds jointly & severally liable unless they can prove they didn’t cause harm

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4
Q

Gratuitous bailment treated as?

Bailment for Hire?

A

Gratuitous bailment: licensee.

Bailment for hire: invitee.

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5
Q

Abnormally dangerous activities?

Recovery?

A

Whether it creates a foreseeable and highly significant risk of physical harm EVEN when **highly significant risk **is exercised.

P can recover if proven:

  1. Def. INVOLVED in activity &
  2. ACTIVITY CAUSED Pl.’s harm

Proximate cause issue: Pl. must be injured by things that make activity abnormally dangerous [not some strange byproduct]

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6
Q

False Imprisonment?

A

intentional confinement/restraint of another against P’s consent & P is aware of confinement or injured thereby [same as False arrest]

  1. intent
  2. confinement
  3. against Pl.’s will
  4. awareness of confinement or injured thereby
    * Awareness isn’t required for young children [infants] & incompetents
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7
Q

Contributory negligence?

A

any fault on part of Pl. bars to recovery

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8
Q

Assumption of Risk?

A

bars recovery

  1. Pl. KNEW;
  2. Pl. UNDERSTOOD; &
  3. Pl. CONFRONTED RISK VOLUNTARILY

only in contribtutory negligence jurisdictions

reduces recover in most comparitive fault jurisdictions

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8
Q

Products Liability Warranty Theory?

A

Focus on warranty & liability arises b/c product not as represented.

  1. warranty existed as to product &
  2. product does not conform to the warranty
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8
Q

Voluntary Act?

A
  • physical manifestation of an actor’s own will.
  • Def. not liableà non-voluntary acts [unconscious, reflex, etc].
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8
Q

Conversion?

A

**intentional exercise of dominion or control over a chattel by Def. that causes destruction or serious & substantial interference w/ Pl.’s ownership rights **

  1. intent
  2. complete dominion & control by D
  3. P’s chattel
  4. serious/substantial interference justly requiring full repayment for value of chattel
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9
Q

DUTY:

Seller of land?

A

transfers both possession & ownership generally no duty, but has duty to disclose any hidden, dangerous natural/artificial conditions which seller [should]know buyer would not discover, then liability/duty held until buyer discovers it OR if seller actively concealed its existence then until dangerous condition actually remedied

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9
Q

Cause-in-fact (Actual Cause): Loss of chance?

A

Pl’s burden of proving more likely than not but for Dr.’s malpractice would not have lost ___% chance of survival

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10
Q

Strict Products Liability in Tort:

Defenses?

A
  1. Misuse - P uses product in manner neither intended nor foreseeable [bars recovery against manufacturer]
  2. Alteration - 3rd party unforeseeably alters a product [bars recovery]
  3. Assumption of Risk - knew, understood & voluntarily [bars recovery]
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11
Q

INVASION OF PRIVACY: Defenses?

A

Truth,

Consent or Privilege

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11
Q

Cause-in-fact (Actual Cause):

Market share liability?

A

generic product & P can’t show who in large group negligent Ds is at fault then may sue all Ds [each only at fault for their share of the market]

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12
Q

Rescuer is not liable to Π for ________–only _________ conduct

A

negligence

reckless, willful or wanton conduct

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12
Q

Design defects?

A

design of product constitutes defect

  • Ordinary Consumer Expectation Test
  • Risk-Utility Balancing Test
  • Hindsight-negligence tes

Some products are exempt from being found defective in design under strict products liability b/c of extraordinary social utilities & no alternative (prescription drugs, vaccines, etc)

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12
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A
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12
Q

DEFAMATION: defense: ABSOLUTE Privilege?

A

not liable for defamation

Privilege ends if someone repeats defamatory statement in a non-privileged situation:

  1. Communication between spouses
  2. Statements made on the floor during legislative session
    • Nature or content of defamatory message or its relationship to any matter before legislature is immaterial to availability of this privilege
  3. Policy making officials of executive branches of state/fed in scope of duties
  4. Statements /participants during judicial proceeding if reasonably related to proceedings
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12
Q

ECONOMIC TORT:

Concealment or Failure to disclose info. not actionable UNLESS?

A
  1. fiduciary relationship
  2. D makes ambiguous misleading statement that causes reliance
  3. D says it thinking its true and learns its not
  4. makes statement not intend reliance and learns P’s relying
  5. P reasonable expects disclosure

No duty to disclose information, UNLESS there is a fiduciary relationship or family members, old friends, stock brokers

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12
Q

ECONOMIC TORTS: Interference w/ Contractual Relations?

A
  1. D knows K between P & 3rd party
  2. D act w/ intent to have K breached OR harder to perform
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12
Q

Cause-in-fact (Actual Cause): but for?

A

“but for” D’s failure to act P would likely not have been injured

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14
Q

Standard of Care: Children?

A

reasonable child same age, experience, skill & intelligence

  1. EXCEPTION: child not behaving as child, involved in adult/ inherently dangerous activity, then treated as adult
  2. Minority: if 5 & under can’t be negligent
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15
Q

ECONOMIC TORTS: Negligent Misrepresentation?

A
  • Gen’l rule: D no duty to avoid negligent infliction of pure economic loss
  • Personal injury or property damage can recover for N.M.
  • EXCEPTION: when there is a special relationship [atty/client recoverable due to fiduciary duty]
  • Who beyond a party who is in privity of contract can recover?
  1. D knows they are acting for the benefit of the 3rd party & aim of their conduct is to benefit third party then 3rd relies & suffers economic loss
  2. In the context of lawyer/client relationships: allow non-client for economic loss in the context of will drafting
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16
Q

DEFAMATION: damages?

A
  • General damages (non-pecuniary aspects such as loss of friends, humiliation, injury to reputation): presumed for libel/slander per se
  • Special damages (specific economic losses: pecuniary (quantifiable monetary losses suffered by P due to injury to reputation)): **required for slander/libel per quod **
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17
Q

DEFAMATION: Standard of Proof: PUBLIC FIGURE:?

A

treated like public officials

  1. All purpose public figures: household names
  2. Limited public figures: inject themselves into particular controversy
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18
Q

Libel?

A

any communication w/ a certain permanence

  • Reputational harm presumed & damages presumed
  • Libel per quod: libel that is not apparent on its fact & extrinsic facts are needed to establish whether libel was defamatory
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19
Q

Strict Products Liability in Tort:

Damages?

A
  1. May be recovered when: personal injury or property damage NOT INTANGIBLE ECONOMIC loss such as lost profits
  2. Where harm only to product itself: only claim available is one of breach of warranty
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20
Q

Assumption of Risk: waiver?

A

Pl. through written/oral agreement waives D’s negligent behavior

  • Unless, Void against public policy when dealing w/ a necessity. [emergency room waiver form]
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21
Q

Trespass to Chattels: Interference?

A
  • Dispossession: direct interference w/ P’s possession
  • Intermeddling: interference w/ chattel that does not directly affect P’s possession [kicking mud on P’s vehicle]
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21
Q

Assumption of Risk: Avoidable consequences?

A

P has obligation to avoid increasing injury

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21
Q
A
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22
Q

Wrongful Conception, Wrongful Birth or Wrongful Life?

A
  • WC: healthy but unwanted child [defective birth control device]. Damages: cost associated w/ birth, pain & suffering for birth, cost for add’l surgery but nothing for raising child
  • WB: unhealthy unwanted child [failure to diagnose birth defect]. Damages: extra-special expenses associated w/ child’s particular susceptibility
  • WL: child suing for being born. [had mom been aware of info, she would have had an abortion] Recovery barred.
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22
Q

Public Nuisance?

A

unreasonable interference w/ right common to gen’l public concerning health, safety or morals of community

  1. have authority to represent state or political subdivision OR
  2. standing as representative of gen’l public, citizen’s action or member of class action &
  3. have right to recover damages

To recover damages in individual action for a public nuisance: must SUFFER SEPARATE/DIFFERENT harm from public at large

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22
Q

DEFAMATION: Publication?

A

some reasonable 3rd person received the defamation & understood it to refer to the P

  • If not intentional, if D negligently permitted it to be communicated to 3rd persons considered published
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23
Q

Standard of Care: Professionals?

A

knowledge & skill of member of profession in good standing in similar locality [if customary practice then deviation is breach]

  • Lack Informed Consent: due to failure to disclose info to Pl. Professional rule: doctor must divulge risks CUSTOMARILY DIVULGED. Minority: Standard of materiality: [Patient Rule] requires doctor to divulge all mat’l risk that reasonable patient would want to know
  • Attys: To prevail in legal malpractice action, P must show: but for atty’s malpractice would have won in underlying CoA
  • Specialist: nat’l focus & Gen’l practitioner: close locality
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24
Q

DEFAMATION:

Standard of Proof:

Public Concern?

A

Constitution requires FAULT & FALSITY on part of Def.

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25
Q

Intentional Misrepresentation (Fraud)?

A

Economic Tort

  1. intentional material misrepresentation
  2. of past or present fact
  3. made with scienter [knows info is false or is reckless as to dissemination]
  4. which the P justifiable relies on causing damages to P
  5. Pecuniary loss due to misrepresentation
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27
Q

Reasonably Prudent Person?

A

Standard of Care; Def.’s conduct measured against reasonably prudent person [same physical characteristics] under similar circumstances in his locale.

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27
Q

WRONGFUL INSTITUTION OF LEGAL PROCEEDINGS:

Malicious Prosecution?

A

D not part of the court system causes criminal prosecution against P & P prevails on the merits

  1. Wrongful Institution of Civil Proceedings [same as A but civil]
  2. Atty’s advice to D to institute proceedings conclusively establishes probable cause in most jurisdictions if D made full & fair disclosure of all relevant facts, & atty competent & duly admitted to practice in jurisdiction or otherwise qualified to render an opinion
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29
Q

Strict Products Liability

in Tort:

Proper Plaintiff?

A

any foreseeable user, consumer or bystander suffering physical injury

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30
Q

Products Liability Warranty Theory:

When are warnings not required?

A

warnings are not required if OBVIOUSLY DANGEROUS (sharp knife)

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31
Q

Vicarious Liability: Parent/Child?

A

not vicariously liable for actions of children, but liable for

  1. child commits a tort while acting as agent for parent
  2. State statutes provide for liability of parents for children’s specific acts (e.g. school vandalism)
  3. Parent approves application for child to get his driver’s license – can be liable under state statute
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33
Q

Pl. not on possessor’s land, but land adjacent to it and injured?

A
  1. Artificial condition on land: Duty of reasonable care
  2. Natural condition on land: No Duty of reasonable care (unless tree in urban area)
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33
Q

Causation?

A

Def.’s conduct caused or set in motion events causing P’s injury

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34
Q

Punitive Damages?

A

punishment willful, wanton, malicious conduct; exemplary damages

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34
Q

Contributory negligence ___________________ a defense to strict liability.

A

is NOT

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35
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A
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36
Q

Extreme & Outrageous Conduct?

A

So outrageous in character & extreme in degree, as to exceed all bounds of decency, & regarded as intolerable in a civilized community

Pl.s w/ KNOWN sensitivities [elderly/children/pregnant women]

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38
Q

Negligence: Unforeseeable Πs?

A

No duty of care owed

i. Exception: Rescuers owed an independent duty

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40
Q

Compensatory damages: TYPES?

A
  1. SPECIAL damages: tangibility: medical expenses, lost wages
    1. GENERAL damages: pain & suffering
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42
Q

Automobile driver DUTIES?

A
  • Automobile GUEST: treated as a LICENSEE [warn known concealed dangers], but under a Guest statute only duty to avoid gross, wanton conduct.
  • Person providing economic benefit: Duty of care rises to level of INVITEE.
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43
Q

INVASION OF PRIVACY: Portrayal in a False Light?

A

D publishes matters that portray P in a false light

  1. publication to a significant # of people
  2. false info
  3. highly offensive to a reasonable person
  4. level of fault [private vs. public official parallel to defamation rules]
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44
Q

Duty: protect another from 3rd party criminal acts?

A

No duty to protect another from 3rd party criminal acts. Unless,

(1) Special relationship &
(2) Heightened level foreseeability of harm

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44
Q

Private necessity?

A

circumstances makes it necessary for a person to harm another or his property to avoid harm to himself or his property & liability for damage is usually available

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46
Q

Attractive Nuisance Doctrine

A

Child Trespassers – [treated as invitee]; possesor may be held liable for injuries to children trespassing on the land if injury caused by a hazardous object/condition on land that likely to attract children who are unable to appreciate the risk posed by the object or condition; factors:

  1. artificial dangerous condition on land
  2. forseeable of trespassing children
  3. D knows of dangerous condition
  4. b/c age/immaturity fails to appreciate danger
  5. risk so great as to outweigh utility of attractive nuisance/dangerous item
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47
Q

Duty: Nonfeasance?

A
  • *failure act/intervene/confer benefit to Π [no duty]; EXCEPTIONS:
  • *
  1. Δ’s tortious conduct creates need for rescue
  2. Comes to aid of Π but leaves Π in a worse position
  3. Δ gratuitously promised aid Π, once attempts to give promised aid, Δ has duty [not just promise]
  4. Special relationship exist [e.g., Employer/employee]
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47
Q

Public necessity?

A

circumstances make it necessary to harm another or his property to protect the public from severe harm [private injury is trumped by public good] & Not Liable for damages

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49
Q

Defect:

Absence of Warnings?

A

no warning or it’s inadequate

  • adequacy of warning: reasonableness of warning [reasonably inform reader of significant warning, size, location, color, etc]
  • lack of warning:
  1. manufacturer must warn about risk [should] know &
  2. gravity & probability of harm
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50
Q

Shopkeeper’s Privilege?

A
  1. store owner has reasonable suspicion person shop lifted &
  2. detention conducted in reasonable manner & for
  3. reasonable period of time to investigate

*Need not actually steal anything,

a reasonable belief will suffice*

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51
Q
A
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52
Q

severe emotional distress?

A

Severity such that no reasonable person could be expected to endure it, not trivial or transitory.

Must be reasonable and justified under the circumstances

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53
Q

Governmental Entity: Duty?

A

duty depends on its capacity

  1. PROPRIETARY function: acting as private actor, then same as private actor
  2. DISCRETIONARY activity: decision involving judgment & resource allocation on part of gov’t D no duty exists
  3. MINISTERIAL function: once gov’t makes decision or acts it is liable for its negligent acts
  4. PUBLIC DUTY DOCTRINE: government agency sued for failure to provide adequate service, courts will find no duty unless, (1) reliance on response of agency; (2) special relationship b/w gov’t & P; & (3) gov’t increases danger to P
  5. UTILITY [water/electric company]: duty limited to only those in privity of contract w/ utility company
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55
Q

Discipline?

A

persons charged w/ maintaining discipline (parent/teacher/ babysitter) may use reasonable force to perform said duty

* Determined by age, sex, maturity & physical condition of the child*

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57
Q

Assault?

A

intentional placing of another in reasonable apprehension of receiving an imminent battery

  1. intent
  2. reasonable apprehension
    • Fear: P need not fear battery, only cognizant that the battery is imminent
    • Not mere threats, UNLESS under circumstances put in reasonable apprehension
    • Actual v. Apparent: not actually capable, just apparently capable to P
  3. imminent battery (no significant delay)
58
Q
A
59
Q

Intentional Torts: Defenses: Authority: Arrest?

A

privilege to arrest w/o a warrant

  1. Officer w/ Warrant as long as valid on its face
  2. Warrantless: Felony: officer may arrest person reasonable believes committed crime if Misdemeanor also needs [imminent] breach of the peace in presence
  3. Private individuals: must observe crime & act at own peril [must be crime]
60
Q

Injurious Falsehood

(Trade Disparagement or Business defamation)?

A
  1. false statement
  2. actual malice
  3. made to another [published]
  4. causing specific economic injury to P
61
Q

Direct Actions - to recover for E.D. P must?

A
  1. be in zone of danger
  2. suffer ED w/ accompanying physical injury [physical impact during event causing ED will suffice for physical injury]

Exceptions:

(a) being told living loved one is dead
(b) mishandling of a corpse

62
Q

NEGLIGENCE?

A

Conduct falling below recognized legal obligation requiring an actor to conform to a certain standard of conduct to protect others from harm

63
Q

Vicarious Liability: Joint Enterprise/Venturers?

A

2+ persons agree to enter into an undertaking where there is a community of interest & mutual right of control; therefore, vicariously liable for each other’s torts

  1. express/implied K;
  2. common purposes;
  3. community of interest; &
  4. equal right of control
64
Q

Abatement/Survival of Action and Wrongful Death?

A
  1. Survival Statutes: allows action to continue after death of decedent & is paid t estate and not beneficiaries directly [pain& suffering]
  2. Wrongful Death Statutes: decedent’s statutory heirs have right to bring an action for their losses based on the decedent’s death [allows recovery for personal injury, cost of death, pecuniary damages, loss of support or consortium but not pain & suffering]
65
Q

Duty: Providers of alcohol?

A

no duty to control 3rd party’s conduct, UNLESS

Dram Shop Act:
Liability commercial establishments that serve a person known to be intoxicated & possibly driving [not Social Host]

Liability is direct, NOT vicarious

65
Q

Duty owed to invitees?

A
  1. search out dangers on property & make safe [if reasonable person would have found them]; &
  2. exercise reasonable care prevent injuries caused by activities conducted on his land.

However, duty of reasonable care owed an invitee does not extend beyond scope of invitation; invitee treated as trespasser in areas beyond invitation’s scope.

67
Q

NUISANCE: Remedies?

A
  • Monetary Damages
  • Injunction
    • Pl. will suffer irreparable harm; & damages inadequate remedy
    • Permanent injunction: P prevailed on substantive claim & shown a need for continuing protection to be eligible for Perm. Inj. Relief, which continues in force until dissolved, but the perm I may not be perpetual – it may be set to expire on its own terms
  • Abatement: Abatement by self help: after notice to D may personally enter upon D’s land to abate nuisance
68
Q
A
68
Q

INVASION OF PRIVACY: Public Disclosure of Private Facts?

A

D unreasonably discloses P’s private true facts to public

  1. disclosure [requires publication or dissemination of info. to PUBLIC]
  2. private facts
  3. disclosure of which is highly offensive to a reasonable person
  4. not news worthy [mere morbid curiosity]

Damages: Injunction might be possible since the information is truthful.

70
Q

Defense of Others?

A

entitled to defend another person from attack by P to same extent that 3rd person would be lawfully entitled to defend himself from P

escape liability if an honest & reasonable belief

71
Q

Design defects:

Ordinary Consumer Expectation Test?

A

if reasonably foreseeable purchaser would not have expected it to present the danger that resulted in his injury

72
Q

Proximate (Legal) Cause: Subsequent negligent conduct [e.g., malpractice, disease]?

A

often not so unforeseeable that it cuts liability

74
Q

Breach of Duty: Slip-and-fall cases?

A

only recover by showing D was negligent by failing to discover & remedy dangerous condition

76
Q

Replevin?

A
  • Pl. post bond [security] against adverse finding for D for immediate possession
  • Damages suffered to chattel
    • Market value [at deprivation] – Market value [at replevin action] OR value of lost use (rental value or lost profits)
    • Judgment for Pl. but chattel not returned, present value for chattel as established at trial
76
Q

Consent? Types?

A

assent by victim of offensive act

[express, implied, or matter of law]

  • Express consent: P affirmatively communicates permission for D to act
  • Implied consent: under circumstances reasonable person would interpret P’s conduct as evidencing permission to act
76
Q

Bystander Actions - to recover for E.D. P must?

A
  1. In zone of danger [Some jurisdictions allow outside zone but on the scene of injury]
  2. Sensory & contemporaneous observance
  3. Close relative
  4. Suffer S.E.D.
77
Q

Cause-in-fact (Actual Cause): Alternative liability theory (Summers v. Tice test)?

A

P’s injury arise from negligent conduct of 2 + independently acting Ds, but only 1 can actually be responsible & P unable to establish which D is in fact responsible, all Ds conduct is regarded as cause-in-fact of injury, unless D can prove otherwise. [burden shifts to Ds then jointly & severely liable]

  1. small # of Ds
  2. each of whom is negligent
  3. all of whom are before the court
78
Q

Licensees?

A

**enter land w/ [ex/imp] consent of land poss. **

Land possessors must warn of known [to licensees] concealed dangers

79
Q

Vicarious Liability: Ownership of a vehicle?

A

if owner [should] know of negative propensity of the driver may be liable for the subsequent acts OR negligently liable for agent/member of family when using auto for family purposes

80
Q

Superseding Cause?

A

unforeseeable, intervening cause that breaks chain of causation b/w initial wrongful act & ultimate injury, & relieves original tortfeasor of any further liability

81
Q

Assumption of Risk?

A

Pl. “assumes the risk” of injury

  1. Pl. KNEW & UNDERSTOOD the RISK
  2. VOLUNTARILY CONSENT of P in confronting the RISK

Subjective unlike contributory & comparative fault (objective)

83
Q

Res ipsa loquitor?

A

“thing speaks for itself”; factors:

  1. would not ordinarily occur in absence of negligence
  2. more likely than not Def was responsible for injury-causing event [exclusive control no longer needed]
  3. Pl. not responsible for event that caused injury

*allows P to make prima facie case allowing jury to draw inference of breach/negligence*

84
Q

intervening force?

A

actively operates in producing harm to another after actor has already committed his negligent act/omission

85
Q

DEFAMATION: defense: Qualified Privilege?

A

communicates a reasonable, honest belief in the public interest or in the interest of others

Privilege lost if:

  • bad intent/malice;
  • exceeds scope of privilege; OR
  • does not believe statement/communication
86
Q

STRICT LIABILITY?

A

Def. liable for Pl.’s injury

despite exercising due care

  • wild animals (Domestic Pet Rule: liability if keeper [should]know of animal’s dangerous propensity)
  • abnormally dangerous activities
  • defective or dangerous products
88
Q

Conversion: Bona fide purchaser?

A

Bona fide purchaser still converter [Vase stolen, then sold to Joe who pays fair value. Original owner can sue Thief, but if Thief unavailable, Joe is a converter as well and can be sued. Either has to pay fair market value again to Owner or return the vase.]

89
Q

Vicarious Liability: Employer/Employee (Respondeat Superior)?

A

employer by virtue of relationship responsible for employee w/in scope of employment;

**Respondeat Superior **

  • Intentional tort committed by employee NOT Vicarious Liability
    • EXCEPTION: employee believes he is acting to benefit employer
  • Employers can be directly liable if negligent in hiring
90
Q

Comparative fault?

A

Comparative fault reduces Pl.’s recovery,

even in a strict liability case.

**[ALWAYS ASSUME APPLIES UNLESS TOLD OTHERWISE] **

Joint & severally liability survives

92
Q

Intentional Torts: Defenses: Types of Authority?

A

Shopkeeper’s Privilege

Discipline

Arrest

93
Q

Proximate (Legal) Cause: EGGSHELL SKULL RULE?

A

still liable if injured person w/ predisposition for injury

94
Q

Intentional Infliction of Emotional Distress: Bystander action?

A
  1. Present;
  2. Def. aware of BS’s presence;
  3. Close relative &
  4. party suffers emotional distress

If none family member must suffer bodily harm from emotional distress

95
Q
A
97
Q

Duty: Misfeasance/Negligent omission - Δ fails duty?

A

Duty owed to any foreseeable Π

98
Q

Trespass to Land?

A

intentional invasion or causing something to enter the land of another

[Nominal damages are recoverable]

  1. intent – need not know land is in possession of another, mere desire to enter land
  2. entry/invasion/intrusion [MUST HAVE FORM …pesticides not smells]
  3. Pl.’s land - anyone in [right to] possession of land
99
Q

Duty: Parent/child Relationship?

A

no duty to control 3rd party’s conduct, UNLESS a special relationship exists, such as Parent/child. Factors:

  1. Has ability to CONTROL child; AND
  2. (Should) Knows of the necessity for exercising such control.
99
Q

Slander?

A

SPOKEN defamation

  1. For Ps to recover have to prove special damages
  2. Exceptions are called slander per se:A) unfit to perform in trade or professionB) crime of moral turpitudeC) loathsome disease [often STD]

** ** D) lack of chastity

101
Q

Necessity?

A

permitted to injure P’s property/person if reasonably necessary to avoid substantially greater harm to public/self/his property

102
Q

Modified comparative fault?

A

if Pl. same amount or more at fault as D then not entitled to recover

104
Q

Strict Products Liability in Tort?

A

Defective product, for which an appropriate Def. is responsible, injures an appropriate Pl. [Focus on product]

  1. Proper Pl.
  2. Proper Def.
  3. Defect
  4. Cause-in-Fact
  5. Proximate Cause
  6. Damages
  7. Defenses
105
Q

Pure comparative fault?

A

Pl. allowed to recover despite level of fault, but subtract his % of negligence

106
Q

Compensatory damages?

A

designed to return Pl. to pre-injury position; factors:

  1. Forseeable
  2. Reasonably certain
  3. Unavoidable
107
Q

Strict Products Liability in Tort:

Defect?

A

product is “in a defective condition unreasonably dangerous”

  • Manufacturing Defect
  • Design defects
  • Absence of Warnings
108
Q

Damages?

A

(MUST be) a cognizable injury & there is a duty to mitigate damages

109
Q

Defense of Property?

A

permitted to use reasonable force

  1. D may never use deadly force to protect property
  2. May use reasonable force to eject a trespasser from personal property after asking them to leave.
  3. Recapture of chattels: when taking is wrongful may use reasonable non-deadly force to get back personal prop if request made or futile OR hot pursuit
  4. Forceable entry on land: another wrongfully entered/remained on land may use reasonable force to enter
110
Q

Proximate (Legal) Cause?

A

owe duty only to foreseeable Ps suffering from foreseeable harm [majority]

112
Q

Intentional Infliction of Emotional Distress?

A

intentional or reckless act amounting to extreme & outrageous conduct causing severe E.D.

  1. intent or recklessness [No Transferred intent, but recklessness provides 3rd parties w/ pot’l claims]
  2. extreme & outrageous conduct
  3. causation
  4. severe emotional distress
113
Q

Design defects:

Risk-Utility Balancing Test?

A

does risk of product as designed outweigh utility to society

Test: Balance the risk of product [harm & magnitude] vs. availability, feasibility & impact of alternate designs

115
Q

Learned Intermediary Doctrine?

A

(2) Learned Intermediary Doctrine: if manufacturer provides warning to doctor then can expect that warning will be passed on

Often analyzed in proximate cause § of a strict product liablity question.

117
Q

ECONOMIC TORTS: Interference w/ Prospective Economic Advantage?

A

protects the probable “expectancy” interests of future contractual relations of a party

P can prevail only by showing that D:

  1. knew of prospective economic advantage
  2. acted to interfere w/ it for improper motives
118
Q

Assumption of Risk: Professional/voluntary rescuers (Firefighter Rule)?

A

Pl.’s professional rescuer & injured doing job w/ inherent risk P will not recover in negligence against D that negligently created risk [not applicable to good deed doer]

120
Q

Invitees?

A
  1. enters land w/ consent of land possessor [scope exceeded becomes tresspasser] &
  2. enter for purpose relating to D’s interest/activities [confer pot’l economic benefit or land held open to the public at large]
122
Q

Negligence Per Se?

A

act is considered negligent b/c it violates a statute/regulation

  1. Pl. in class statute was designed to protect; &
  2. created to protect against kind of harm Pl. suffered

Even if applicable statute standard will not apply if:

  • would have resulted in harm greater than harm by violation; violation of statute does not indicate negligence; impossible or physical infirmity [unless you knew of infirmity]
123
Q

NEGLIGENCE elements?

A
  1. Duty: standard of care
  2. Standard of Care: measure of the duty owed
  3. Breach of Duty: failure to conform to required standard of care
  4. Cause-in-Fact: connects ∆’s breach to Π’s injury
  5. Proximate Cause: sufficiently related to a legally recognizable injury [legal limitation on cause-in-fact]
  6. Damages: harm caused & relief sought
  7. Defenses: Contributory, Comparative & Assumption of risk
124
Q

Design Defect:

Hindsight-negligence test?

A

product defective if reasonable person would not have placed it in stream of commerce

125
Q

DEFAMATION: defense: TRUTH?

A
  1. Historically: falsity presumed, truth had to be proven
  2. TODAY: FALSITY MUST BE PROVED
126
Q

Vicarious Liability: Independent Contractor?

A

Person who hires him is not vicariously liable, UNLESS:

  1. Contractor engaging
    • in inherently dangerous activities
    • Non-delegable duty (Contractor undertakes a duty law does not permit to be delegated to another, e.g., keeping home in good repair).
  2. Negligent hiring/supervision
  3. Employer retains a right of CONTROL over the way indie contractor does work.
127
Q

Private Nuisance?

A

substantial & unreasonable interference w/ Pl.’s use & enjoyment of Pl.’s land [Can’t be Pl.’s hypersensitivity]

  1. Substantial & unreasonable interference; factors: value of D’s activity; alternatives; nature of locality; extent of P’s injury; who was there 1st;
  2. Pl.’s possessor
  3. Def.’s conduct legal cause of interference
  4. intentional OR unintentional & otherwise actionable under rules controlling liability for negligent or reckless conduct
128
Q

WRONGFUL INSTITUTION OF LEGAL PROCEEDINGS: Abuse of Process?

A

Abuse of process exists where using legal system for an ulterior motive that harms P

129
Q

DEFAMATION?

A

D published false reputation harming material

  1. Defamatory statement of fact,
  2. of or concerning P,
  3. publication,
  4. damages, &
  5. standard of proof [fault & falsity: malice, negligence, but not negligence]
130
Q

Compensatory damages: Collateral Source Rule?

A

Pl. compensated from a 3rd-party (insurer/union), but it doesn’t negate a tortfeaser’s liability.

Also applicable to gratuitous services [nurse works for free] Def. still owes fair market value

131
Q

Intent?

A

actor consciously desires physical result of his act or knows w/ substantial certainty that tort will result from his conduct

  • Intent TRANSFERs from intended victim to actual victim & intended tort to actual tort (does not apply to IIED/NIED)
  • Mistake of fact does not negate intent
  • Insanity/adolescence will not negate intent if there was a desire for the tortious conduct
132
Q

Trespass to Chattels?

A

**intentional dispossessing, using or intermeddling w/the chattel of another causing damages **

  1. intent
  2. interference
  3. Pl.’s chattel – tangible personal property in P’s possession or susceptible/right of immediate possession
  4. harm - actual damages have been suffered, not insignificant

Remedy: Damages & Replevin [fair market value of item at time converted]]

134
Q

Recklessness?

A

intentional or reckless act amounting to extreme & outrageous conduct causing severe E.D.

135
Q

Republication Rule?

A

anyone that repeats the defamation becomes a publisher & liable for defamation

136
Q
A
137
Q

Manufacturing Defect?

A

product produced in a condition not intended by manufacturer; factors:

  1. in condition not intended by manufacturer or more dangerous than ordinary consumer would expect when used in intended manner; &
  2. condition existed at time product was put in chain of commerce

*No court has imposed strict liability on D who sold a home he did not construct.

139
Q

DEFAMATION: Standard of Proof: PRIVATE PERSON?

A

Distinguish b/w public & private concern.

  • Public concern: if willing to prove reputational harm …the state may set any standard of fault it wants but never strict liability standard …often NEGLIGENCE
    • Presumed or punitive damages: actual malice is required by clear & convincing evidence
  • Private concern: don’t need malice for presumed or punitive damages merely PUBLICATION
140
Q

Strict Products Liability in Tort:

Proper Def.?

A

anyone in marketing/commerce chain & in business of dealing w/ product

Includes manufacturer, retailer, or wholesaler. Not an occasional seller.

141
Q

DEFAMATION?

Types?

A

statement believed to be true that lowers Pl. in the esteem of the community or discourages 3rd persons from associating with him [Characterized as holding the Pl. up to hatred, ridicule, contempt or scorn]

Libel

Slander

i. Must be defamatory in the eyes of a reputable group.
ii. Large group can’t be defamed, but small group, every member can bring a claim
iii. Must still be alive

142
Q

Trespassers?

Unknown?

Known?

Child?

A

Enters land w/o authority/ex/imp consent of land possessor; Avoid infliction willful/wanton harm

  1. Unknown - No duty
  2. Known/ Frequent - Duty to warn of hidden dangers (artificial) that T doesn’t know of & reasonable care to protect from activities
  3. Children - child Trespassers (Attractive Nuisance Doctrine) – [treated as invitee.]
143
Q

Last clear chance doctrine?

A

Only applies in this context. If P injury could have still been avoided through a subsequent exercise of due care by D, then D had last clear chance to avoid harm, and P’s contributory fault

144
Q

DEFAMATION: Standard of Proof: Public Official?

A

must prove clear & convincing evidence of actual MALICE [D knew it was false]

145
Q

Landlords are not liable unless?

A
  1. COMMON AREA [Landlord still maintains control over [laundry]
  2. NEGLIGENT REPAIRS
  3. HIDDEN, DANGEROUS DEFECT known at time leased; OR
  4. KNOWS tenant going hold property OPEN TO PUBLIC at large
146
Q

Battery?

A

intentional harmful or offensive contact upon the person of another or extension of their person

  1. intent
  2. harmful or offensive contact –
    • would inflict pain or impairment of any body function
    • offensive to a reasonable sense of personal dignity [i.e., Def. knows particular susceptibility of Pl.’s]
  3. w/ a person or an extension of that person
    • [sufficient if D causes contact with something not in Pl.’s possession but comes into her possession, i.e. urinating in coffee that P plans to drink]

Do not need to be aware when battery occur

148
Q

Self-Defense?

A

if reasonably & honestly believe an actual or reasonably apparent threat exist that justifies a necessary use of reasonable force to prevent an imminent, unprivileged harm [subjective]

  1. Must respond w/ proportionate force
  2. Not required to retreat, but once imminent threat diminishes no SD privilege
  3. Imminent attack b/c mistaken identity, SD not privileged if could fix mistake & prevent attack.
  4. If 3rd party injured while defending self no liability absent Negligence
149
Q

Cause-in-fact (Actual Cause): Multiple causes?

A

Substantial factor test: D sub’l factor in causing P’s injury

  1. Must use where multiple negligent Ds
  2. Assume joint & several liability: P sue any # of Ds & collect from which ever D, D made to pay can seek contribution from other Ds
150
Q

Defenses of consent: scope?

A
  1. EXCESSIVE or UNFORESEEABLE/UNANTICIPATED
  2. Fraud; non-collateral; Duress;
  3. Mistake/Misrepresentation:
    • a) product of mistake of fact or law as to nature or consequences of D’s act; &
    • b) D aware of mistake
  4. Incapacity – children & mental disease
151
Q

INVASION OF PRIVACY: Commercial Appropriation of Identity or Likeness?

A

D w/o authority intentionally uses P’s identity/likeness for commercial gains

Commercial purpose, not news worthy purpose

152
Q

Negligence:

Nominal Damages?

A

NOT PERMITTED,

punitive & atty fees are generally not allowed

153
Q

Causation can be thought of as having two components.

What are they?

A

Cause in fact

&

**proximate-cause(“scope of liability”) **

154
Q

What do we mean by cause in fact?

A

If the plaintiff’s injury would not have occurred **BUT FOR **defendant’s negligence, then the defendant’s conduct is a factual cause of the harm. If the injury would have occurred despite the defendant’s conduct, then there is no factual cause.

155
Q

NEGLIGENCE DAMAGES?

A
  • Nominal damages cannot be recovered.
  • Plaintiff must prove ACTUAL HARM
  • Economic-loss rule: Plaintiff who suffers only economic loss without any related personal injury or property damage CANNOT recover in negligence.
156
Q

Parasitic Damages?

A
  • Once a plaintiff has recovered for a physical harm or property damage, he or she can sometimes add categories of damage analogous to emotional distress.
  • The damages for distress are parasitic on the other tort.
157
Q

Parent-child immunity?

A

Traditionally, parents were immune from tort claims by their children; Courts allow liability but NOT in core prenting activities.

**Can sue parents for injuries arising from automobile accidents, sexual abuse, intentional tortious conduct, or when parent is acting in a dual capacity **

158
Q

Charitable Immunity?

A

Traditionally, immune from liability.

  • Most states have eliminated this immunity.
  • Many states cap damages available against a charity.
159
Q

Federal Tort Claims Act?

A

**Federal government WAIVES immunity in tort actions. **Exceptions:

  • Certain enumerated torts - assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, and interference with contractual rights;
  • Discretionary functions - planning or decision making;
  • Assertion of gov’tal immunity by contractor if the contractor conformed to gov’t specifications and government knew about any known dangers; AND
  • Traditional governmental activities (e.g., tax collection, admiralty, military activity, etc.).
160
Q

Immunity: Gov’t Officials?

A
  • Immunity applies if performing a DISCRETIONARY function, as long as those are done without malice or an improper purpose.
  • NO immunity for MINISTERIAL acts
  • Westfall Act: Precludes any liability on the part of a federal employee under state tort law
161
Q

Charitable Immunity?

A
  • Traditionally, immune from liability.
  • Most states have eliminated this immunity
  • Many states cap damages available against a charity
162
Q

1Joint and Several Liability?

A
  • 2+ tortfeasors, BOTH LIABLE, can be liable for a single harm.
  • Pl. can collect all of his damages from either defendant.

Applies:

  1. When the tortious acts of 2+ tortfeasors combine to produce one indivisible harm
  2. 2+ tortfeasors **act in concert **
  3. **Alternative liability **
  4. **Res ipsa loquitur in med mal cases **
163
Q

Indemnification?

A

Shifts **entire loss **from one party to the other; Generally arises under vicarious liability

  • Indemnification available when:
    • Prior agreement b/w parties;
    • Equitable indemnification - a substantial difference between the blameworthiness of the parties, requiring a shifting of the loss from one to the other;
    • There is significant additional harm caused by another tortfeasor; OR
    • Under strict liability, each supplier has indemnification against previous suppliers.
164
Q

Imputed Contributory Negligence?

A

Limit one person’s recovery because of another person’s negligence (employee’s negligent driving may prevent/reduce employer’s recovery from a 3rd-party if employer’s car is damaged)

Does NOT apply:

  • Married Pl. whose spouse was contributorily negligent in causing the harm, in a suit against a third party;
  • Child Pl. whose parent’s negligence was a contributing cause of her harm, in a suit against a third party;
  • Automobile passenger suing a 3rd-party driver if the negligence of driver of car in which passenger was riding also contributed to accident; or
  • Automobile owner in an action against a defendant driver for negligence when driver of owner’s car also was negligent.
165
Q

Consent vs. Assumption of the Risk?

A

**Assumption of the risk applies to negligence, while consent applies to intentional torts. **

166
Q

Exculpatory Clauses in Contracts?

A

Parties can contract to disclaim liability on negligence.

Courts hesitate to enforce exculpatory provisions if:

  • disclaim liability for reckless or wanton misconduct, or gross negligence;
  • gross disparity of bargaining power b/w the two parties;
  • party seeking to enforce provision offers services of great importance to public (e.g., medical services); OR
  • provision subject to K defenses (e.g., fraud or duress).
  • Generally, common carriers, innkeepers, and employers cannot disclaim liability for negligence.
167
Q

What is the “economic loss” rule in negligence cases?

A

Plaintiff who suffers only economic loss without any related personal injury or property damage CANNOT recover such loss through a negligence action.

168
Q

What are the main types of compensatory damages available in personal injury cases?

A

The typical categories of damages recoverable in a personal injury action include:

  1. Medical and rehabilitative expensive;
  2. Past and future pain and suffering (e.g., emotional distress); AND
  3. Lost income and any reduction in future earnings capacity.
169
Q

WILD ANIMALS?

A

Species or class is not by custom devoted to the service of mankind in the place where he is being kept.

170
Q

Owner’s Animals on Another’s Land?

A
  • Owners of any animals (other than household pets) are liable for reasonably foreseeable damage caused by his animal while trespassing.
  • Exception for household pets does not apply if the owner knows or has reason to know the pet is intruding on another’s property.
171
Q

Strict Liability:

Statutory Privilege?

A
  • Party performing an essential public service is exempt from strict liability.
  • Could still be liable for negligence
172
Q

Product Liability:

Substantial Change in Product?

A

The substantial change is a SUPERCEDING cause that cuts off liability.

173
Q

What must be proven to recover for the tort of abuse of process?

A

Abuse of process is the misuse of the power of the court. The plaintiff must prove:

  1. A legal procedure set in motion in proper form;
  2. That is “perverted” to accomplish an ________________ motive;
  3. A willful act perpetrated in the use of process which is not proper in the regular conduct of the proceeding; AND
  4. Causing the plaintiff to sustain damages
174
Q
A

Bar Exam (13 decks)

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