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CA Essay Bar Studies > Torts > Flashcards

Torts Flashcards

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1
Q

Elements of Intentional Torts

A

Requires an act
Intent to bring physical or mental effect
Causation

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2
Q

Intent for Torts

A

Either desire or purpose OR

Knows w/ substantial certainty effect will occur

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3
Q

Transferred Intent Torts

A

Same tort different person
Different tort same person
Different tort different person
Cannot be invoked w/ conversion or IIED

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4
Q

Causation Intentional Torts

A

Need not be direct (i.e. setting in motion)

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5
Q

Assault Tort

A

Intentional causing of an
Apprehension of an
Imminent
Harmful or offensive contact

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6
Q

Apprehension Assault

A

Must be reasonable

Must be aware

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7
Q

Imminent Assault

A

Apparent present ability to
Carry out threat
Not future or hypothetical harm

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8
Q

Harmful or offensive contact Assault

A

Touching that causes pain or bodily damage OR

Offends reasonable person’s sense of dignity

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9
Q

Battery Tort

A

Intentional infliction of
Harmful or offensive
Bodily conduct

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10
Q

Harmful or offensive Battery

A

Touching that causes pain or bodily damage OR

Offends reasonable person’s sense of dignity

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11
Q

Bodily conduct Battery

A

Can be indirect including contact w/

Object closely identified w/ plaintiff’s body

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12
Q

False Imprisonment

A

Intentionally causes
Plaintiff to be confined, restrained or detained to
Bounded area w/ no reasonable means of escape
Plaintiff is either aware or harmed

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13
Q

Plaintiff to be confined, restrained or detained to False Imprisonment

A

Use of physical force, threats, duress,

Invalid legal authority OR refusing safe means of escape

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14
Q

Shopkeeper’s privilege

A

For reasonable time and manner
Detain suspected shoplifter
Typically 10-15 minutes

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15
Q

Bounded area False Imprisonment

A

Can be large and does not have to be stationary

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16
Q

Plaintiff is either aware or harmed False Imprisonment

A

Must be conscious or, if not

Must be harmed in some way

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17
Q

IIED

A

Intentional or reckless infliction of
Severe emotional or mental distress caused by
Defendant’s extreme & outrageous conduct

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18
Q

Intent IIED

A

Desire or
Knows w/ substantial certainty OR
Reckless disregard for high
Probability distress will occur

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19
Q

Severe emotional or mental distress IIED

A

Beyond reasonable person should endure
Can be evidenced by defendant’s conduct
Hypersensitivity
Only liable if defendant knew of sensitivity

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20
Q

Extreme & outrageous conduct IIED

A

Beyond all possible bounds of decency
Usually if defendant in position of
Authority or influence OR
Plaintiff member of group w/ heightened sensitivity

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21
Q

3rd Party Liability IIED

A

Plaintiff physically present & known by defendant AND
Close relation to other person OR
Suffers bodily harm as result of distress

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22
Q

Trespass to Land

A 
Can be brought by anyone w/ legal possession; not just owner
Intentional 
Physical invasion to
Land of another
Mistake of fact not defense
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23
Q

Physical invasion Trespass to Land

A

Entry w/ out permission
Remaining w/ out right to be there OR
Placing or projecting object w/out permission

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24
Q

Trespass to Chattel

A 
Intentional
Interference w/ use or possession
Of chattel
Damages
Mistake of fact not defense
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25
Q

Interference w/ use or possession Trespass to Chattel

A

Owner precluded from using or possessing

Typically temporary

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26
Q

Damages Trespass to Chattel

A

Actual damages
Loss of value caused by loss of use OR
Cost of repair

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27
Q

Conversion

A

Intentional
Interference w/ use or possession that
So substantial warrants full value
Damages

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28
Q

Interference w/ use or possession that Conversion

A

Sells to 3rd party
Refuses to give back OR
Destroys

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29
Q

So substantial warrants full value Conversion

A 
Courts take into account:
Duration & extent of interference
Intent to assert right inconsistent w/
Rightful possess w/ good faith
Expense or inconvenience to plaintiff
Extent of harm
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30
Q

Damages Conversion

A

FMV at time of conversion

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31
Q

Self Defense Torts

A 
Reasonable force to prevent
Threatened harm or offensive contact AND
Threatened confinement or imprisonment
Deadly force:
Only allowed if defendant in 
Danger of death or SBI
Degree of force:
Only degree necessary to 
Prevent threatened harm
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32
Q

Defense of Others Torts

A

Reasonable force to defend
Another when
Reasonably believes that other person
Could have used force to defend himself

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33
Q

Defense of Property Torts

A

Reasonable force to defend against
Tortious harm to property
Warning required unless appears futile or dangerous
Deadly force:
Only if non-deadly force will not suffice AND reasonably believes danger of death or SBI
NO mechanical devices (i.e. Home Alone)

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34
Q

Recapture of Chattel

A

Reasonable force to regain possession if:
Fresh pursuit
NO deadly force

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35
Q

Consent Defense Torts

A

May be express or implied
Scope:
Not beyond what consented to

Express or Implied

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36
Q

Express Consent Defense Torts

A

Must be willing and knowing
Consent by mistake valid defense
Consent by fraud invalid if essential matter

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37
Q

Implied Consent Defense Torts

A

Emergency
Injuries arising from athletic contests
Mutual consent to combat

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38
Q

Defense of Necessity Torts

A

Enters land or interferes with property to
Prevent injury or severe harm

Private or Public

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39
Q

Private Defense of Necessity Torts

A

Must pay for actual damages caused
Not liable for nominal damages
Landowner may not use force to exclude

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40
Q

Public Defense of Necessity Torts

A

When necessary to protect

Large number of people from public calamities

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41
Q

Insanity Defense Torts

A

Generally no defense if able to

Form requisite intent to do so

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42
Q

Negligence Torts

A

Defendant’s conduct imposes
Unreasonable risk upon another
Resulting in injury

Duty
Breach
Causation
Damages

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43
Q

Duty Negligence

A 
Act as reasonable person
Who is it owed to
Foreseeable plaintiffs (majority):
In the zone of danger
Everyone (minority):
Including unforeseeable
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44
Q

Standard of Care Duty

A

Reasonable person under circumstances
Physical characteristics of defendant
Voluntarily intoxicated held to same standard as sober
Not mental characteristics

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45
Q

Special Duties Negligence

A 
Common carrier
Innkeepers
Automobile drivers
Special relationship
Causing the danger
Volunteer assistance
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46
Q

Common carrier Duty

A

Highest duty of care w/

Practical operation of business

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47
Q

Innkeepers Duty

A 
Ordinary negligence (majority)
Slight negligence (minority)
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48
Q

Automobile drivers Duty

A 
Ordinary care (majority)
Refrain from wanton & willful misconduct (minority)
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49
Q

Special relationship Duty based on:

A

Business or landowner holding premises open to public
Landlords and tenants
Or other special relationships

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50
Q

Volunteer assistance

A

Must proceed w/ reasonable care

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51
Q

Professional Duties

A

Required to possess knowledge and skill

Of their profession or occupation

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52
Q

Fireman’s Rule

A

Risk takers are prohibited from suing or

Injuries stemming from assumed risk of profession

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53
Q

Children Duties

A

Conform to conduct of child of like
Age, intelligence, and experience
Exception
Child engaged in adult activity (i.e. driving)

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54
Q

Bailor Duties

A

For gratuitous, bailor must:
Inform of known, dangerous defects in chattel
Bailment for hire
Inform of defects of which should know

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55
Q

Bailee duties

A 
Sole benefit for bailor
Standard is low
Sole benefit for bailee
Higher standard of care
Mutual benefit
Ordinary standard of care
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56
Q

Land Duties

A

Off Premises
Trespassers
Invitee
Licensee

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57
Q

Dutiy to Off Premises Injuries

A

Not liable for injuries resulting from natural conditions

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58
Q

Duty to Trespassers

A

Owes no duty to undiscovered trespassers but

Must refrain from willful, wanton, or intentional misconduct

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59
Q

Duty to Discovered Trespasser

A

Warn or protect against concealed

Dangerous artificial conditions

60
Q

Duty to Undiscovered Trespasser

A 
No duty unless owner should
Reasonably have known trespassers
Entering land
Then use reasonable care
No duty to inspect
61
Q

Attractive Nuisance

A 
Liable to trespassing children if
Artificial condition poses
Unreasonable risk of SBI AND
Because of age, children cannot 
Appreciate danger or do not find
Burden of eliminating danger  
Slight compared to risk of harm AND
Owner fails to exercise reasonable care
62
Q

Duty to Invitees

A 
One who enters land in response to
Invitation by owner to do
Business w/ owner OR
Public invitee for land open
To public at large
63
Q

Non-Delegable Duties

A

Make reasonable inspection to
Find hidden dangers AND
Take affirmative action to remedy

64
Q

Duty to Licensee

A 
One who enters land w/ owner’s consent
For his own purpose (social guest)
Duty to:
Warn to all known dangerous conditions that
Create unreasonable risk of harm that
Unlikely to discover AND to use
Reasonable care in conducting activities
NO duty to repair or inspect
65
Q

Negligence Per Se

A

Criminal or regulatory statute imposes specific duty
Establishes duty and breach
Must still prove causation and damages

66
Q

Req of Negligence Per Se

A

Violation of statute
W/ in class of people intended to be protected
Harm statute intended to protect against
If fails, consider regular negligence

67
Q

Negligence Per Se Excused if:

A

Compliance creates greater risk of harm
Reasonable under circumstances
Statutory vagueness or ambiguity
Violations by plaintiff deemed comparative negligence

68
Q

Breach Negligence

A

When defendant’s conduct fails to

Conform to applicable standard of care

69
Q

Trad Breach Negligence

A

What reasonably prudent person would do

70
Q

Cost-Benefit Analysis Breach Negligence

A

Unreasonableness of risk vs

Utility of act

71
Q

Res Ipsa Loquitur

A

Establishes breach in situations where

Event creates an inference defendant likely negligent

72
Q

Elements of Res Ipsa Loquitur

A

Ordinarily not occur in absence of negligence
Cause w/ in exclusive control
Not due to action by plaintiff

73
Q

Modern Trends Res Ipsa Loquitur

A

Shifts burden of medical holding all jointly and severally liable
Products liability when came from upstream
Generous interpretation of exclusivity

74
Q

Actual Causation

A

But for defendant’s act,

Injury would not have occurred

75
Q

Multiple Tortfeasors/Multiple Possible Causation

A

Substantial factor test
Concurrent tortfeasors acting in concert
Alternate causation

76
Q

Substantial factor test

A

More than one at fault and
Conduct combined caused harm
Negligence was substantial factor to harm

77
Q

Concurrent tortfeasors acting in concert

A

Joint and several liability

78
Q

Alternate causation

A

Two acts of negligence, only one could
Cause injury but unknown
Burden shifts to defendants to show not them

79
Q

Proximate Causation

A

Reasonable foreseeability

Liable for all harm reasonably foreseeable

80
Q

Eggshell-skull plaintiff

A

Liable for unforeseen harm that may be
Increased b/c of plaintiff’s pre-existing
Physical or mental conditions or vulnerability

81
Q

Intervening Causes Proximate Cause

A

Foreseeable, then still liable:
I.e. medical malpractice or negligence by rescuers
Unforeseeable, generally not liable if
Broke chain of causation:
I.e. fender bender, get hits by another car

82
Q

Collateral Source Rule

A

Benefits from outside sources (P’s insurance) not
Credited against liability BUT
D’s insurance is
Modernly statutes have eliminated or modified

83
Q

Negligent infliction of emotional distress (NIED)

A

Liable when defendant engages in
Negligent conduct that causes plaintiff to
Suffer serious emotional distress

84
Q

Types of NIED

A 
Actual impact or threat OR
Zone of danger OR
Bystander but must be 
Related and Personally witnessed OR
Special relationship (i.e. mishandling a corpse or misdiagnosis)
85
Q

Negligence Defenses

A

Contributory negligence
Comparative Negligence
Assumption of Risk

86
Q

Contributory negligence

A

Negligence on part of plaintiff

Bars recovery

87
Q

Comparative Negligence

A 
Negligence on part of plaintiff but
Does not bar recovery
Pure:
Reduces in proportion to fault
Partial Comparative Negligence:
Reduces if less than 51%
Bars if more than 50%
88
Q

Assumption of Risk

A

Bars if assumed risk of damage where
Knew of risk and voluntarily consented
Comparative fault
May reduce recovery but does not bar

89
Q

Strict Liability

A

Held liable for activities regardless of
Precautions taken to prevent harm

Animals or Abnormally Dangerous Activity

90
Q

Trepass of Animal Strict Liability

A

Liable if

Reasonably foreseeable damage

91
Q

Wild animals Strict Liability

A

Not custom to keep type of animal
S/L despite precautions so long as
Arises from dangerous propensity of animal OR
Which owner knows about
S/L for fearful reaction of unrestrained animal
No S/L of undiscovered trespasser
EXCEPT vicious watchdog

92
Q

Domestic animals Strict Liability

A

S/L if knows or reason to know of
Dangerous propensities and harmful results
Public stray, then negligence

93
Q

Abnormally Dangerous Activities

A

High degree of risk or serious harm
Cannot be eliminated by exercise of reasonable care
Danger outweighs activity’s value to community
Not appropriate for location
Not common activity

94
Q

Defenses to Strict Liability

A

Assumption of risk

NOT contributory negligence

95
Q

Products Liability

A

Liability of seller of tangible item, which
Because of defect causes injury to purchaser
User or bystander

96
Q

Intent Products Liability

A

Defendant intended consequences or
Knew to substantial certainty to occur
Defenses same as intentional torts

97
Q

Strict Products Liability Elements

A

Product was defective
Defect existed when left defendant’s control (actual cause)
Caused injury when used in foreseeable way (proximate cause)
Damages

98
Q

Types of Strict Products Liability

A

Manufacturing defect
Design Defect
Failure to Warn

99
Q

Manufacturing defect

A

Product deviated from intended design

100
Q

Design Defect

A 
Consumer Expectation Test
Less safe than ordinary consumer would expect
Risk-utility Test
If risks outweigh benefits
Must show reasonable alternative design
101
Q

Failure to Warn

A 
Foreseeable risk NOT
Obvious to ordinary user
Prescription drugs
Warning goes to doctor UNLESS
Marketed directly to consumers (more common now)
102
Q

Damages Products Strict Liability

A

No recovery for purely economic loss

103
Q

Defenses to Products Strict Liability

A 
Assumption of risk
Comparative negligence BUT NOT
If plaintiff’s neg or misuse foreseeable
Disclaimers not effective
Compliance w/ industry standards NOT defense
104
Q

Negligence Products

A

Retailers and wholesalers rarely liable

Manufacturer likely could be

105
Q

Types of Warranties Products Liabilities

A

Express
Implied Warranty of Merchantability
Fitness for Particular Purpose

106
Q

Express Warranty Products Liabilities

A

Statement of fact or promise concerning goods

Only need to show did not live up to promise

107
Q

Misrepresentation Products Liability

A

Liable for misrepresentation of fact when
Statement was material fact concerning
Quality or uses of goods AND
Seller intended to induce reliance buyer AND
Buyer did in fact rely
Must still prove causation and damages

108
Q

Defenses of Misrepresentation Products Liability

A

Comparative

UNLESS intentional

109
Q

Types of Privacy Claims

A

Misappropriation
Intrusion into Seclusion
False Light
Public Disclosure of Private Facts

110
Q

Misappropriation

A

Unauthorized use of plaintiffs
Picture or name for
Defendant’s commercial advantage

111
Q

Intrusion into Seclusion

A

Intrusion into private aspect of plaintiff’s
Life in private place
Highly objectionable to
Reasonable person

112
Q

False Light

A

One attributes to plaintiff views he does not hold
Objectionable to reasonable person under circum
Publication is public
If public interest, malice required
Truth not defense

113
Q

Public Disclosure of Private Facts

A

Public disclosure of private facts that
Not matter of legitimate public concern
Objectionable to reasonable person

114
Q

Public Nuisance

A

Substantial, unreasonable interference w/
Health, morals, welfare, safety, or prop rights to community
Only if:
Suffered damage different in kind AND
Not merely in degree

115
Q

Private Nuisance

A

Substantial
Unreasonable interference with
Another private individual’s
Use or enjoyment of his land

116
Q

Substantial Private Nuisance

A

Interference offensive, inconvenient OR

Annoying to average person

117
Q

Unreasonable interference Private Nuisance

A

Harm caused outweighs utility OR
Harm caused greater than
Should be required to bear

118
Q

Defenses to Nuisance

A

Legislative authority
Persuasive but not absolute

Assumption of risk and comparative neg IF
Complaint rests on neg theory

Coming to nuisance
Only for sole purpose of
Brining harassing lawsuit

119
Q

Fraud Misrepresentation

A 
Common law fraud or deceit
Misrepresentation of material fact
Scienter
Intent to induce plaintiff’s reliance
Causation
Justifiable reliance
Damages
120
Q

Fraud Misrepresentation Justifiable reliance

A

Obviously false or opinion

121
Q

Fraud Misrepresentation Damages

A

Actual economic loss/consequential damages
No nominal
No damages for emotional distress

122
Q

Negligent misrepresentation

A

Misrepresentation in business or professional capacity
Acted w/ no reasonable grounds for believing misrep to be true
Intent to induce plaintiff reliance
Causation
Justifiable reliance
Defenses
Damages

123
Q

Malicious Prosecution

A

Institution of criminal proceedings against plaintiff
Prosecutors immune from liability
Termination of proceedings in plaintiff’s favor
W/ no probable cause
Improper purpose of accuser in bringing suit
Damages

124
Q

Abuse of Process

A

Intentionally misuses legal procedures (i.e. depos, discovery)
For ulterior motive AND
Defendant committed willful act in wrongful manner
Caused damage to plaintiff

125
Q

Intentional interference with Business Relations

A

Existence of valid contractual relationship OR valid business expectancy
Defendant knew or should have known of relationship
Intentional interference by defendant inducing breach
Damages

126
Q

Vicarious Liability Torts

A

When one person commits tortious act
Against third party AND
Special relationship between tortfeasor & defendant

127
Q

Respondeat superior

A

When employee commits tort
Employee is one who works subject to
Close control of person who hired him

During course and scope of employment
Acting w/ intent to
Further employer’s business purpose
Even if act itself forbidden

Employer liable

128
Q

Independent Contractor Torts

A

One who hires independent contract

Generally not liable UNLESS
Employer neg in hiring them OR duty non-delegable b/c work occurs in public place OR involves inherently dangerous activity

129
Q

Multiple Defendants

A

Jointly and severally liable where

Two or more negligent acts combine for cause

130
Q

Contribution for Multiple Defendants

A

Allows defendant who
Pays more than his pro rata share
To obtain reimbursement for
Amount paid over his share

131
Q

Fed Gov’t Immunity Torts

A

Traditionally immune but
Now limited by FTCA
Waived for intentional torts
Committed by law enforcement

132
Q

State Gov’t Immunity Torts

A

Most states have waived immunity

133
Q

Wrongful Death

A

Recovery for pecuniary injury resulting to spouse AND
Next of kin for wrongful death AND
Allows for loss of support and consortium

134
Q

Defamation

A

Defamatory Statement
Of/Concerning Plaintiff
Published to 3rd Party

135
Q

Defamatory Statement

A

False statement that holds plaintiff
Up to contempt or public ridicule
Opinions or true statements NOT
Advance affect on rep

136
Q

Of/Concerning Plaintiff

A

Plaintiff must be identifiable

137
Q

Published to 3rd Party

A

Heard/Understood
Republication identifying OG
Speaker uncertainty to statement
May still satisfy element

138
Q

Types of Defamation

A

Libel (Written)
Slander per se
Slander

139
Q

Libel (Written)

A

Damages Presumed

140
Q

Slander per se

A 
CLUB:
Crime
Loathsome disease
Unclean woman
Business/Profession
Damages Presumed
141
Q

Slander

A

Must show special damages

142
Q

Private Person/Public Concern

A 
Falsity
Actual Malice OR
Knowledge of falsity or 
Reckless disregard for truth
By clear and convincing evidence
Negligence AND Actual Injury
143
Q

Public Figure/Public Official

A 
Falsity AND
Actual malice
Knowledge of falsity or 
Reckless disregard for truth
By clear and convincing evidence
Damages Presumed
144
Q

Defenses to Defamation

A

Truth
Absolute Privilege
Qualified Privilege

145
Q

Truth Defense to Defamation

A

Don’t have to defend if falsity is element

146
Q

Absolute Privilege Defense to Defamation

A

Remarks during judicial or legislative proceedings
By Fed gov’t and state officials
Between spouses

147
Q

Qualified Privilege Defense to Defamation

A

Affecting important public interest
In interest of defendant OR
Third party
Can be lost if defendant abuses w/ actual malice

CA Essay Bar Studies (15 decks)

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