Torts Flashcards

Question

Intentional Misrepresentation (Fraud)?

Answer 1

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

Answer 2

**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 1. standing as representative of gen’l public, citizen’s action or member of class action & 2. have right to recover damages To recover damages in individual action for a public nuisance: must **SUFFER SEPARATE/DIFFERENT** harm from public at large

Answer 3

**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

Answer 4

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

Answer 5

**any foreseeable user, consumer or bystander suffering physical injury**

Answer 6

warnings are not required if **OBVIOUSLY DANGEROUS** (sharp knife)

Answer 7

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

Answer 8

* 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.

Answer 9

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

Answer 10

**is NOT**

Answer 11

**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]

Answer 12

punishment willful, wanton, malicious conduct; exemplary damages

Answer 13

No duty of care owed ## Footnote i. Exception: Rescuers owed an independent duty

Answer 14

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

Answer 15

1. **SPECIAL** damages: tangibility: medical expenses, lost wages 2. **GENERAL** damages: pain & suffering

Answer 16

P has obligation to avoid increasing injury

Answer 17

* 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**.

Answer 18

**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]

Answer 19

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

Answer 20

**No duty to protect another from 3rd party criminal acts. Unless,** ## Footnote (1) Special relationship & (2) Heightened level foreseeability of harm

Answer 21

**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

Answer 22

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*

Answer 23

**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]

Answer 24

**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

Answer 25

1. store owner has reasonable suspicion person shop lifted & 2. detention conducted in reasonable manner & for 3. reasonable period of time to investigate ## Footnote \*Need not actually steal anything, a reasonable belief will suffice\*

Answer 26

**Severity such that no reasonable person could be expected to endure it, not trivial or transitory.** Must be reasonable and justified under the circumstances

Answer 27

**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

Answer 28

* **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]

Answer 29

persons charged w/ maintaining discipline (parent/teacher/ babysitter) may use reasonable force to perform said duty ## Footnote **\* Determined by age, sex, maturity & physical condition of the child\***

Answer 30

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

Answer 31

**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)

Answer 32

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]

Answer 33

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

Answer 34

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

Answer 35

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

Answer 36

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

Answer 37

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]

Answer 38

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**. ## Footnote 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.

Answer 39

**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

Answer 40

* 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

Answer 41

**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.**

Answer 42

**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

Answer 43

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

Answer 44

often not so unforeseeable that it cuts liability

Answer 45

**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

Answer 46

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

Answer 47

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.

Answer 48

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

Answer 49

**enter land w/ [ex/imp] consent of land poss.** Land possessors must warn of known [to licensees] concealed dangers

Answer 50

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

Answer 51

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

Answer 52

**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**)

Answer 53

**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

Answer 54

**"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\***

Answer 55

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

Answer 56

**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

Answer 57

**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

Answer 58

[aka claim & recovery]: a**ction to recover possession of specific chattels that are allegedly wrongfully taken or detained**; [restitutionary remedy applicable to conversion] * 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

Answer 59

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.]

Answer 60

**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

Answer 61

**Comparative fault reduces Pl.’s recovery,** **even in a strict liability case.** **[ALWAYS ASSUME APPLIES UNLESS TOLD OTHERWISE]** **Joint & severally liability survives**

Answer 62

**design of product constitutes defect** ## Footnote * 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)

Answer 63

Shopkeeper’s Privilege Discipline Arrest

Answer 64

still liable if injured person w/ predisposition for injury

Answer 65

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

Answer 66

negligence reckless, willful or wanton conduct

Answer 67

Duty owed to any foreseeable Π

Answer 68

**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

Answer 69

**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 profession B) **crime of moral turpitude** C) **loathsome disease [often STD]** D) **lack of chastity**

Answer 70

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.

Answer 71

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

Answer 72

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

Answer 73

Truth, Consent or Privilege

Answer 74

**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

Answer 75

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

Answer 76

**designed to return Pl. to pre-injury position**; factors: ## Footnote 1. Forseeable 2. Reasonably certain 3. Unavoidable

Answer 77

**product is “in a defective condition unreasonably dangerous”** ## Footnote * Manufacturing Defect * Design defects * Absence of Warnings

Answer 78

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

Answer 79

**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

Answer 80

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

Answer 81

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

Answer 82

**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

Answer 83

**does risk of product as designed outweigh utility to society** ## Footnote Test: Balance the risk of product [harm & magnitude] vs. availability, feasibility & impact of alternate designs

Answer 84

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

Answer 85

(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.

Answer 86

**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

Answer 87

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

Answer 88

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]

Answer 89

**bars recovery** ## Footnote 1. Pl. **KNEW**; 2. Pl. **UNDERSTOOD**; & 3. Pl. **CONFRONTED** RISK **VOLUNTARILY** **only in contribtutory negligence jurisdictions** **reduces recover in most comparitive fault jurisdictions**

Answer 90

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]

Answer 91

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

Answer 92

**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]

Answer 93

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

Answer 94

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

Answer 95

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

Answer 96

**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.

Answer 97

**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

Answer 98

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

Answer 99

**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]

Answer 100

**Pl. compensated from a 3rd-party (insurer/union), but it doesn’t negate a tortfeaser’s liability.** ## Footnote Also applicable to gratuitous services [nurse works for free] Def. still owes fair market value

Answer 101

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

Answer 102

**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]]

Answer 103

* **Disclaimer**: UCC enables Def. to disclaim/limit its applicable warranty by sufficiently conspicuous writing [can’t limit personal injury] * **Failure to notify selle**r: 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.

Answer 104

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

Answer 105

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

Answer 106

**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.

Answer 107

**no duty to control 3rd party's conduct, UNLESS** ## Footnote 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.

Answer 108

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**

Answer 109

**anyone in marketing/commerce chain & in business of dealing w/ product** ## Footnote Includes manufacturer, retailer, or wholesaler. Not an occasional seller.

Answer 110

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

Answer 111

**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.]

Answer 112

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

Answer 113

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

Answer 114

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

Answer 115

**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**

Answer 116

**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**

Answer 117

**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

Answer 118

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

Answer 119

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

Answer 120

**D w/o authority intentionally uses P’s identity/likeness for commercial gains** Commercial purpose, not news worthy purpose

Answer 121

NOT PERMITTED, ## Footnote punitive & atty fees are generally not allowed

Answer 122

**Cause in fact** **&** **proximate-cause(“scope of liability”)**

Answer 123

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.

Answer 124

* 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.

Answer 125

* 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.

Answer 126

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**

Answer 127

Traditionally, immune from liability. * Most states have eliminated this immunity. * Many states cap damages available against a charity.

Answer 128

**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.).

Answer 129

* 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

Answer 130

* Traditionally, immune from liability. * Most states have eliminated this immunity * Many states cap damages available against a charity

Answer 131

* 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**

Answer 132

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.

Answer 133

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) ## Footnote 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.

Answer 134

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

Answer 135

**Parties can contract to disclaim liability on negligence.** ## Footnote Courts hesitate to enforce exculpatory provisions if: * disclaim liability for r**eckless 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.

Answer 136

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

Answer 137

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.

Answer 138

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

Answer 139

* 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.

Answer 140

* Party performing an **essential public service** is exempt from strict liability. * Could still be liable for negligence

Answer 141

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

Answer 142

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