Torts

Question 2

Types of intentional torts . . .

Answer 2

1. battery2. assault3. false imprisonment4. IIED5. trespass to land6. trespass to chattels7. conversion

Question 3

Elements of battery . . .

Answer 3

a. harmful OR offensive bodily contactb. w/ the P’s personNOTES:a. harmful OR offensive bodily contacti. bar don’t ask a lot of questions about harmful ii. breaks your bones, makes you bleed, go to hospitaliii. substitute the word “unpermitted” for offensiveiv. offensive = unpermitted; by a person of ordinary sensitivity (extreme or hyper-sensitivity is not taken into account)v. ex. we take a break, he’s standing outside; where are the bathrooms? tap a student on the shoulder = not a batteryvi. ex. a form of sexual harassment; touching hair while saying he really likes her= batteryvii. ex. stroke each person’s hair in the room; we don’t pet each other, but not permitted by normal people = batteryb. w/ the P’s personi. anything the P is connected to, holding, that is also considered part of the P’s personii. ex. holding a handbagiii. ex. woman on a horse and slap the rear end of the horse – battery, the horse is considered part of her personiv. NOTE: doesn’t matter how intimate the item is, it is has to be connected to your person (ex. prosthetic leg not attached not a battery)

Question 4

Elements of assault . . .

Answer 4

a. D must place the P in a reasonable apprehension (P DOES NOT HAVE TO BE AFRAID; instead apprehension = knowledgeb. of an immediate battery- words alone are NOT enough - need action- immediacy can be destroyed by accompanying wordsNOTES: a. D must place the P in a reasonable apprehensioni. apprehension = NOT fear or anxiety; INSTEAD = knowledge (apprehend that mother will be making chicken tonight)ii. PLAINTIFF DOES NOT HAVE TO BE AFRAID – they can be calm tranquil or mellow and still have a chance to recoveriii. the unloaded gun problem: what if the threat is an empty threat? conventional approach is to take a trip into the P’s head – if he doesn’t know THE TEST IS: reasonable apprehension (i.e. reasonable belief that you could be battered) .. . reasonable to think that the gun could be loadedb. of an immediate batteryi. words alone lack immediacy; you have to have conduct – a menacing gesture; physical conducto words may sound immediate on their face – “In 10 seconds I’m going to punch you in the face b/c I used to be a professional boxer.” In the eyes of the law, NOT apprehension of immediate batteryo look for display of a weapon or waiving a fist in someone’s face; getting up out of a chair and crossing a room in angerii. when you have certain conduct, the immediacy can be destroyed by the accompanying wordso ex. conditional words; if you weren’t my best friends, I’d beat the crap out of you. = not immediate apprehension

Question 5

_____ are not enough for the apprehension element of battery, but _____ is not required of P b/c apprehension equals ______.

Answer 5

Wordsfearknowledge

Question 6

Elements of false imprisonment . . .

Answer 6

a. act of restraintNOTE: an omission can be a restraint if their was a preexisting duty (i.e. flight attendant leaves immobile person on plane for hours)b. confined in a bounded areaNOTE: not bounded if = i. an area is NOT bounded if there is a reasonable means of escape that the P can reasonably discover - ** TESTED ALL THE TIME (but not if dangerous disgusting or humiliating)c. P knows that they are confined (lock roommate in room and unlock before wake up and P never finds out = not LNOTES:a. act of restrainti. doesn’t have to be physical barrier- threats are sufficient o ex. if you leave this room in the next 30 minutes I’ll shoot you and I display the gun – act of restraint – credible restraint will keep you in the room even the door is wide openo ex. if you leave this immediate area I’m going to keep your keys and wallet = act of restrainto has to be viable – can’t be: I’m going to turn you into a unicornii. an omission can be an act of restraint if there was a preexisting duty o usually will relate to facilitating P’s free movementso ex. P has to fly from LA to MIA; employee takes her inside to get boarding pass; boards plane early; she gets to MIA, the cabin crew does nothing and ignores her entirely; she is trapped for an hour = valid claim for false imprisonmentiii. an act of restraint only counts (for bar) if the P knows about it or is harmed by it o if you are restrained but you are oblivious, no harm no foul (even if I confess the prank to you later)b. confined in a bounded areai. an area is NOT bounded if there is a reasonable means of escape that the P can reasonably discover - ** TESTED ALL THE TIMEo translated: your not locked in if you can get outo the test on the word reasonable – they’ll have D confine P in a space and their will be a way out, but the exit is going to be dangerous, disgusting, humiliating, or hidden = not reasonable

Question 7

T or F; False imprisonment requires physical restraint.

Answer 7

F, threats are enough

Question 8

Not bounded, for purpose of false imprisonment if . . .

Answer 8

there is a reasonable means of escape that the P can reasonably discover - ** TESTED ALL THE TIMEo translated: your not locked in if you can get outo the test on the word reasonable – they’ll have D confine P in a space and their will be a way out, but the exit is going to be dangerous, disgusting, humiliating, or hidden = not reasonable

Question 9

IIED elements . . .

Answer 9

a. outrageous conduct = i. def. in restatement: conduct is considered outrageous if it exceeds all bounds of decency tolerated in a civilized society b. P must suffer severe distressc. NOTE: a D can be held L when behaving recklessly as well as intentionally (ii. the one intentional tort that has it is the name doesn’t have it in the name)NOTES:a. NOTE: a D can be held L when behaving recklessly as well as intentionallyi. you intend something if you intend to bring about the intended result, but here, reckless is also sufficientii. the one intentional tort that has it is the name doesn’t have it in the nameb. outrageous conducti. def. in restatement: conduct is considered outrageous if it exceeds all bounds of decency tolerated in a civilized society (to a NY, nothing exceeds the bounds of decency)ii. guidance on this:o mere insults don’t count; if they are part of other behavior, then may tip the balance, but not by themselveso 4 hallmarks of outrageousness: where the bad behavior is continuous or repetitive in nature (ex. make an explicit vulgar proposition to you at work; is it outrageous? I don’t know; some judges might send to a jury but hard to say, BUT if I do it every time I see you, it is much more likely to cross the line into outrageousness; another ex. is debt collector; course language, threats of physical harm) D is a common carrier or in-keeper (transportation company or hotel) – CL took view that travelers in a particularly vulnerable state – if they are deliberately mean to you = outrageous (ex. you can’t stay here, you are too ugly to stay here) P is a member of a fragile class of persons (3 fragile classes that the law recognizes – (1) young children (lean down to 5 year old child; “you no good scum sucking son or a bitch” = outrageous; even though mere words are not enough); (2) elderly persons – REMEMBER, its not about the person’s reaction, it’s ABOUT THE D’s behavior; (3) pregnant women (does the D have to know that the person is pregnant? YES – “secret tort baby”) D knows in advance that P has emotional weakness and deliberately targets that weakness – “If you exploit a known sensitivity of the P” (you know your co-worker is deathly afraid of kittens)c. P must suffer severe distressi. no specific proof requirement for this element – they can prove this element however she wishes; don’t have to prove with physical symptoms; great if you do, but don’t have to; don’t have to show lost days of work; offer what evidence you got and the jury makes decisionii. how do they test this? they are going to negate the element in the body of the problem in a subtle way = they tell you the outrageous conduct and then say: P was mildly upset. = not going to win.

Question 10

Unlike other intentional torts, a D found L for _____, for acting _____, as well as negligently.

Answer 10

recklesslyintentionally

Question 11

Restatement def. of outrageous for purposes of IIED . . .

Answer 11

conduct is considered outrageous if it exceeds all bounds of decency tolerated in a civilized society (remember that its not about the P’s reaction; its about the D’s behavior)

Question 12

4 hallmarks of outrageousness for IIED . . .

Answer 12

 where the bad behavior is continuous or repetitive in nature (ex. make an explicit vulgar proposition to you at work; is it outrageous? I don’t know; some judges might send to a jury but hard to say, BUT if I do it every time I see you, it is much more likely to cross the line into outrageousness; another ex. is debt collector; course language, threats of physical harm) D is a common carrier or in-keeper (transportation company or hotel) – CL took view that travelers in a particularly vulnerable state – if they are deliberately mean to you = outrageous (ex. you can’t stay here, you are too ugly to stay here) P is a member of a fragile class of persons (3 fragile classes that the law recognizes – (1) young children (lean down to 5 year old child; “you no good scum sucking son or a bitch” = outrageous; even though mere words are not enough); (2) elderly persons – REMEMBER, its not about the person’s reaction, it’s ABOUT THE D’s behavior; (3) pregnant women (does the D have to know that the person is pregnant? YES – “secret tort baby”) D knows in advance that P has emotional weakness and deliberately targets that weakness – “If you exploit a known sensitivity of the P” (you know your co-worker is deathly afraid of kittens)

Question 13

3 fragile class of persons that the law recognizes for IIED/outrageous

Answer 13

(1) young children (lean down to 5 year old child; “you no good scum sucking son or a bitch” = outrageous; even though mere words are not enough); (2) elderly persons – REMEMBER, its not about the person’s reaction, it’s ABOUT THE D’s behavior; (3) pregnant women (does the D have to know that the person is pregnant? YES – “secret tort baby”)

Question 14

How will they test the “severe distress” element of IIED on the bar?

Answer 14

they are going to negate the element in the body of the problem in a subtle way = they tell you the outrageous conduct and then say: P was mildly upset. = not going to win.

Question 15

Elements of trespass to land . . .

Answer 15

a. act of physical invasion (2 ways)o the D can enter P’s property - D does not have to know (hiker from national park land) - law says buy a map- intent to be on geographic location; if has heart attack and falls over, then NO INTENTo throw an object onto the property-land includes space above and space below- throw a rock across yard but never touches still counts for this elementb. landNOTES:a. act of physical invasioni. 2 ways:o the D can enter P’s property  walking on the property or on a vehicle) THE D DOES NOT HAVE TO KNOW HE ENTERED P’s PROPERTY (hiker in national park; no fence, sign, or natural boundary crossed into private land = LIABLE); the law says: buy a map the intent is the intent to be in that geographic location; BUT if you have a heart attack and fall onto someone else’s land, then NOT L. o throw an object onto the property pick up a rock and throw it through neighbor’s window has to be physical or tangible; THUS shining bright lights onto your neighbors land, creating shockwaves to break their glassware, sending odors ARE NOT throwing objectsb. landi. includes the air above and soil below out to a reasonable distance (no on airplanes but kid throws ball that crosses the yard, even though doesn’t touch anything = trespass; not going to recover much, but it is technically speaking a trespass; even taking arm and waiving it over the other person’s land, that’s trespass

Question 16

Elements of trespass to chattels / conversion . . .

Answer 16

a. interference (damage or steal)b. with person property (anything you own other than land or buildings; furniture, data files etc.)c. difference between the two is the amount of harm (degree of interference)i. small; slight harm = trespass to chattels (ex. key car = cost of repair)ii. extensive; great = conversion (ex. sledge hammer to car = not just 8k to fix glass etc., it’s the 15k to buy a new car)iii. conversion gets special remedy = full value of item in question; NOT merely cost of repair; RULE: “conversion operates as a forced sale” – you break it; you bought it.

Question 17

Differences between trespass to chattels and conversion:

Answer 17

the amount of harm (degree of interference) and damagesi. small; slight harm = trespass to chattels (ex. key car = cost of repair)ii. extensive; great = conversion (ex. sledge hammer to car = not just 8k to fix glass etc., it’s the 15k to buy a new car)iii. conversion gets special remedy = full value of item in question; NOT merely cost of repair; RULE: “conversion operates as a forced sale” – you break it; you bought it.

Question 18

Conversion acts as a “_____.”

Answer 18

forced sale

Question 19

What are the affirmative defenses to intentional torts and what torts do they apply to?

Answer 19

1. consent (2 types: express and implied); applies to all 72. the protective privilegesi. self defenseii. defense of othersiii. defense of property3. necessity; only applies to the property torts (trespass to land, chattel, conversion)

Question 20

Elements of consent affirmative defense to intentional tort . . .

Answer 20

a. P had legal capacityb. 2 types of consenti. express consent: explicit words granting D permission to act in a particular way (sane person says hit me = not a battery)o EXCEPTION: not a defense if obtained through fraud or duress; disregarded, invalid ii. implied consent: (2 ways) o via custom: when an individual goes to a place or engages in an activity where certain invasions are typical – the law assumes that you know what is typical and you are cool with it barber’s chair opens up and the barber starts cutting hair = can’t sue barber for battery most common = team sportso via D’s reasonable interpretation of P’s objective conduct / body language consent we are allowed to read the situations and make rational inferences from there nothing that make ultimate act of sex acceptable (coffee after the movie does not equal ok to have sex)iii. NOTE: all consent has a scope; if you exceed that scope you will be L for a tort (if you fall down and someone stomps on your foot = outside scope of consent)o if you consent to an operation on one part of your body, an operation on another part of your body is outside of the scope of consent

Question 21

2 types of implied consent . . .

Answer 21

o via custom: when an individual goes to a place or engages in an activity where certain invasions are typical – the law assumes that you know what is typical and you are cool with it barber’s chair opens up and the barber starts cutting hair = can’t sue barber for battery most common = team sportso via D’s reasonable interpretation of P’s objective conduct / body language consent we are allowed to read the situations and make rational inferences from there nothing that make ultimate act of sex acceptable (coffee after the movie does not equal ok to have sex)

Question 22

Exception to express consent . . .

Answer 22

not a defense if obtained through fraud or duress; disregarded, invalid

Question 23

Drunk person says punch me. Not express consent because _____.

Answer 23

person doesn’t have the capacity to give the express consent.

Question 24

All consent has a _____ that may not be exceeded.

Answer 24

scope

Question 25

What are the protective privileges (affirmative defenses to intentional torts) and elements?

Answer 25

a. Which are they:i. self defenseii. defense of othersiii. defense of propertyb. Elements:i. proper timing: “imminent or in progress” – i.e. NO REVENGE (but note, a second blow may follow the first)ii. D must have a reasonable belief that the threat is genuineo means that a reasonable mistake DO NOT negate a privilege – you can make a mistake in reading the situation so long as it’s a reasonable error (ex. someone else picks up your bag by accident at the terminal and you grab it; he sues you for battery – you say defense of property = you win; I had a reasonable belief that was my bag and that I needed to do that to protect my propertyiii. amount of force is “necessary” force to prevento excessive force = Lo ex. someone goes to punches you in the face, but you can’t take a knife and plunge into your chesto ex. if someone is using deadly force, then you may respond in a deadly fashion; if someone is lunging at you with a knife, you can take out a gun and shoot themo FL DISTINCTION: You are presumed to have a reasonable fear of death/great bodily harm and are allowed to use deadly force if someone enters a dwelling or an occupied vehicle (car jacking). o NOTE: The rule of proportionality prohibits us from using deadly force to protect personal property (no guns to save your laptop)o NOTE: You can’t do by mechanical device what you can’t do in person (no booby trap; deadly mechanical devices)

Question 26

FL distinction relevant to protective privilege

Answer 26

iii. amount of force is “necessary” force to prevento excessive force = Lo ex. someone goes to punches you in the face, but you can’t take a knife and plunge into your chesto ex. if someone is using deadly force, then you may respond in a deadly fashion; if someone is lunging at you with a knife, you can take out a gun and shoot themo FL DISTINCTION: You are presumed to have a reasonable fear of death/great bodily harm and are allowed to use deadly force if someone enters a dwelling or an occupied vehicle (car jacking). o NOTE: The rule of proportionality prohibits us from using deadly force to protect personal property (no guns to save your laptop)o NOTE: You can’t do by mechanical device what you can’t do in person (no booby trap; deadly mechanical devices)

Question 27

When does the necessity defense apply?

Answer 27

a. only apply to the property torts (trespass to land, chattel, conversion)b. 2 situations:i. D invades P’s property in an emergency to protect community as a whole or significant group of people (often a natural disaster; a fire, usually a big one; crazed gunman in a tower picking off people one by one); into this scenario comes a hero - “the savior of the city” – needs some object that doesn’t belong to him ii. D invades P’s property to protect interest of own – not savior of city but saving himself – not treated as generously o 3 legal consequences associated with protecting own interest private necessity remains L for compensatory damages (pay for the actual harm that you do) private necessity actor immunized from nominal or punitive damages while the emergency continues, the P in the case cannot throw a private necessity D of his land; RATHER, the P must tolerate his presence, unmolested, on the land, in a position of safety; in an emergency we all have a right to sanctuary ex. D is a cross country hiker in MN in February; sudden an unexpected blizzard – broken window = pay to fix; door open and walk in, give me nominal damages of $1 out of principle = farmer loses; punitive = farmer loses – the technical trespass is disregarded in an emergency; farmer kicks him out and Dave sustains harm = farmer is L

Question 28

3 legal consequences associated with protecting own interest in necessity defense (as opposed to “hero scenario”) . . .

Answer 28

private necessity remains L for compensatory damages (pay for the actual harm that you do) private necessity actor immunized from nominal or punitive damages while the emergency continues, the P in the case cannot throw a private necessity D of his land; RATHER, the P must tolerate his presence, unmolested, on the land, in a position of safety; in an emergency we all have a right to sanctuary ex. D is a cross country hiker in MN in February; sudden an unexpected blizzard – broken window = pay to fix; door open and walk in, give me nominal damages of $1 out of principle = farmer loses; punitive = farmer loses – the technical trespass is disregarded in an emergency; farmer kicks him out and Dave sustains harm = farmer is L

Question 29

While an emergency continues, the P cannot throw a _______ plaintiff of his land.

Answer 29

private necessity

Question 30

What are the economic/dignitary torts?

Answer 30

1. Defamation2. Privacy

Question 31

Elements of defamation . . .

Answer 31

a. D made a defamatory statement that specifically identified the Pb. “publication” of the statement (the D must disclose the defamatory statement to 1 person other than the P – that’s enough)- DOES NOT HAVE TO BE INTENTIONALc. damage

Question 32

T/F. A defamatory statement can be spoken or written.

Answer 32

T

Question 33

Define a defamatory statement . . .

Answer 33

tends to adversely affect reputation (typically an allegation of fact that reflects negatively on you and causes other people to think negatively of you)

Question 34

A defamatory statement tends to _____ reputation (typically an allegation of fact that reflects negatively on you and causes other people to think negatively of you)

Answer 34

“adversely affect”

Question 35

T/F. Name calling is considered defamatory. “Bill is a no good son of a bitch.”

Answer 35

False

Question 36

T/F. A defamatory statement must identify the person by name.

Answer 36

False. Can by by position, for example. The attorney general of Florida is a . . . .

Question 37

T/F. A dead person can be defamed.

Answer 37

False. person has to be alive; once dead you can speak with impunity

Question 38

The publication requirement for defamation means ____ need(s) to hear the statement.

Answer 38

at least one other person other than Pii. the more people the D tells, the more harm and the more moneyiii. does NOT have to be INTENTIONAL

Question 39

T/F. For defamation, I must intentionally publish the statement.

Answer 39

False. The publication requirement for defamation means at least one other person other than P needs to hear the statement. ii. the more people the D tells, the more harm and the more moneyiii. does NOT have to be INTENTIONAL

Question 40

Damage categories for defamation . . .

Answer 40

1. liable2. slandera. slander per seb. slander not per se

Question 41

Liable relates to the _____ category for ______. A libelous statement must be _____.

Answer 41

damagesdefamationpredicated on written statement or something that is permanently captured

Question 42

If the statement is libelous, then the impact on damages is that _____.

Answer 42

damages are presumed so P does not have to prove them; thus if they offer no evidence of damages, it still gets to the jury

Question 43

Slander relates to the _____ category for ______. The two types of slander are _____ and _____ (include how damage element of defamation must be proved for each)

Answer 43

damagesdefamationo slander per se = same treatment as liable i.e. presumedo slander NOT per se = damages must be proved

Question 44

How do you identify slander per se and impact on proving damages?

Answer 44

o slander per se = same treatment as liable i.e. presumed any statement related to 4 itemized topics (1) relating to P’s business or profession; (2) P has committed a crime of moral turpitude (deceit, dishonesty, income tax fraud physical violence; generally petty crimes like public drunkenness are NOT considered crimes of moral turpitude; (3) imputing un-chastity to a woman (P is a slut; Debbie knows the Dolphins really well; (4) suffering from a loathsome disease (when you have the disease, other people loathe you – there are only 2: leprosy AND venereal disease ** (has been on the exam)

Question 45

If slander is not per se, how does it impact the litigation?

Answer 45

 means that P has to show economic harm (ex. you got fired; can’t get a job; revenues are down at your place of business; trying to negotiate a contract and they walked away from you) SOCIAL HARM DOES NOT COUNT – ex. thrown of the bridge club or no one invites you to dinner does NOT count

Question 46

T/F. Social harm can be used to prove the damages element in a case that is not slander per se.

Answer 46

False

Question 47

What are the affirmative defenses to defamation?

Answer 47

1. consent2. truth3. the privileges (absolute and qualified)4. when the subject matter of the defamation is a matter of public concern

Question 48

Elements of consent affirmative defenses to defamation

Answer 48

same as intentional tort consent affirmative defensea. P had legal capacityb. 2 types of consenti. express consent: explicit words granting D permission to act in a particular way (sane person says hit me = not a battery)o EXCEPTION: not a defense if obtained through fraud or duress; disregarded, invalid ii. implied consent: (2 ways) o via custom: when an individual goes to a place or engages in an activity where certain invasions are typical – the law assumes that you know what is typical and you are cool with it barber’s chair opens up and the barber starts cutting hair = can’t sue barber for battery most common = team sportso via D’s reasonable interpretation of P’s objective conduct / body language consent we are allowed to read the situations and make rational inferences from there nothing that make ultimate act of sex acceptable (coffee after the movie does not equal ok to have sex)iii. NOTE: all consent has a scope; if you exceed that scope you will be L for a tort (if you fall down and someone stomps on your foot = outside scope of consent)o if you consent to an operation on one part of your body, an operation on another part of your body is outside of the scope of consent

Question 49

Elements of truth, which is an affirmative defense to _____.

Answer 49

defamationo D can show that the statement is factual accurateo NOTE: D has the burden of proof for affirmative defenses

Question 50

Elements of absolute and qualified privileges which are an affirmative defense to _____.

Answer 50

defamation (NOTE FL DISTINCTION BELOW)absolute privilege (2 of them) communications b/w spouses (husband writing or speaking to wife and visa versa) officers of the government acting in the official functions that relate to their jobs (in the scope of their employment) – in the judicial branch, extends to lawyers and witnesses as well, not just judges – so anything you say in open court or write in your court papers cannot be the basis of a defamation cause of actiono qualified privilege (where there is a public interest in encouraging candor) (no list – case by case basis) ex. recommendations and references ex. when you talk to police officers who are investigating a crime 2 conditions to retain the privilege: (1) must have good faith belief that the statement is accurate (you made a mistake in the letter of recommendations – honest and reasonable mistake); (2) must confine yourself to matters that are relevant (if you inject extraneous matter then no privilege) o FL DISTINCTION: if media D = will never be presumed damageso FL DISTINCTION: media D gets 5 days advance notice of your intent to sue AND, if they publish retraction within 5 days thereafter, you CANNOT get PUNITIVE damages (can get actual)

Question 51

In a FL defamation case, media Ds gets _____ days advance notice of _____ AND, if _____, you CANNOT get _____ damages, but can get _____ damages.

Answer 51

5your intent to suethey publish retraction within 5 days thereafterPUNITIVEactual

Question 52

2 conditions to retaining the qualified privilege affirmative defense to defamation . . .

Answer 52

(1) must have good faith belief that the statement is accurate (you made a mistake in the letter of recommendations – honest and reasonable mistake); (2) must confine yourself to matters that are relevant (if you inject extraneous matter then no privilege)

Question 53

In a defamation case in FL where the media is the D, damages will never _____.

Answer 53

be presumed; i.e. no slander per se or liable presumption

Question 54

Recent FL case on defamation affirmative defense . . .

Answer 54

FL Supreme Court – attorney made some statements to witnesses that he was interviewing (informal discovery fact investigation; not in the umbrella of a formal court proceeding) – in that situation, they were NOT absolutely privileged b/c too far removed from the proceeding, HOWEVER, they said there was a qualified privilege; if he made false statements but in good faith, then insulated.

Question 55

How can you identify a public concern case for defamation purposes and what impact does it have on the litigation?

Answer 55

when the subject matter of the defamation is a matter of public concern o no hard and fast def.; anything that is newsworthy and wide-spread public interest – know it when you see ito ex. public official taking bribes; athlete taking PEDs IMPORTANT: don’t want to “chill” speech about important matters so we add two elements to their cause of action in public concern case: • P must prove the that statement is false (truth is presumed)• fault (P must demonstrate some degree of culpability; the type depends on the type of P; (1) if the P is a public figure, the statement must be made intentionally or recklessly - you knew in advance that it was fault and published it anyway or you didn’t lift a pinky to investigate (tip from the drunk on the pavement) BUT if private figure = negligence is enough – failure to reasonably investigate the accuracy

Question 56

What are the privacy torts?

Answer 56

a. appropriation: the use of the P’s name or image in a commercial context b. intrusion: an invasion of the P’s physical seclusion in a way that is highly offensive to the average personc. placing the P in a false light: the widespread dissemination of a major falsehood about the P that would be highly offensive to an average person (the tort of false gossip) - FL DISTINCTION: no cause of action in FLd. disclosure: widespread dissemination of confidential information of about the P that would be highly offensive to an average person

Question 57

Which of the privacy torts is not recognized in FL?

Answer 57

iv. FL DISTINCTION – NO CAUSE OF ACTION FOR FALSE LIGHT

Question 58

Appropriation is _____, and is a type of _____ tort. The exception that applies to appropriation occurs when _____.

Answer 58

the use of the P’s name or image in a commercial context privacy tortEXCEPTION: there is a limit for newsworthy; saved a baby and the publish your name or image

Question 59

Intrusion is _____ and is a type of _____ tort. An example is _____.

Answer 59

an invasion of the P’s physical seclusion in a way that is highly offensive to the average personprivacyi. ex. wiretapping or secret video taping; listening a the key-hole or peeping tom.ii. must be in a place where you have an expectation of privacyiii. out on a public street, can’t complain; but hotel room yes

Question 60

False lights is _____ and is a type of _____ tort. It overlaps with the tort of _____, but is _____. An example of false light is _____. The FL distinction for false light is that _____.

Answer 60

the widespread dissemination of a major falsehood about the P that would be highly offensive to an average person (the tort of false gossip)privacy tortdefamationbroaderii. ex. D is telling people that P is embezzling money when he is doing no such thing – this is also defamation; in that kind of a fact pattern, P can sue for both false light and defamation – different damages: defamation = economic damages; false light = emotional or social damagesiii. ex. D tells them that P is Catholic when he’s actually Jewish – not defamation b/c not something to think less of; BUT CAN get false light b/c mischaracterizing religion offensive to himiv. FL DISTINCTION – NO CAUSE OF ACTION FOR FALSE LIGHT

Question 61

Disclosure is _____ and is a type of _____ tort. An example is _____. The exception to this rule is _____.

Answer 61

widespread dissemination of confidential information of about the P that would be highly offensive to an average personi. ex. receptionist at primary care doctor mails medical information to all of your colleaguesii. EXCEPTION: newsworthy exception; if it’s newsworthy you can do it; i.e. if the Miami Herald posts medical records of Mitt Romney even if got by slightly unethical means; maybe not so much today unless he concealed it during the campaign.

Question 62

The affirmative defenses to the privacy torts are . . .

Answer 62

i. consentii. the two defamation privileges: the absolute and qualified (defenses to false light and disclosure)

Question 63

Elements of negligence . . .

Answer 63

Duty, breach, causation (factual and proximate), damage

Question 64

2 questions to address when answering duty of care question . . .

Answer 64

1. to who owed2. how much duty is owned

Question 65

To who do we owe a duty (negligence) and exception?

Answer 65

o modern answer: you owe a duty to foreseeable victims and ONLY foreseeable victims you don’t owe a duty of unforeseeable V’s.  unforeseeable V’s always lose ex. identifying them; 2 guys rushing to catch a train; train slowly exit the station; can make it by jumping on board; one man going to lose his balance; railroad employee helps push through open door; knocks loose a package with an explosive fireworks and injured Helen Palsgraph (Palsgraph) - who do you think might get hurt: himself, the other people (domino effect), drop the package and hurt someone, that’s it. what about the lady standing all the way down by the scales? no way Cardozo: not foreseeable b/c she is “outside the zone of danger” - only people in the zone of danger can recover more than likely an issue of distance first part of duty boils down to this distance issue EXCEPTION: rescuers need not be in the zone of danger (“danger invites rescue”) – once the original accident occurs, people will be drawn in to give assistance – rescuer can recover

Question 66

Under duty, how much care is owed?

Answer 66

hypothetical reasonably prudent person acting under similar circumstances

Question 67

The hypothetical reasonably prudent person is a standard for _____. It is a(n) _____ standard, which means that _____.

Answer 67

duty of care; how much is owedobjective standardo what it means: it is an OBJECTIVE STANDARD – which means it is the same for everyone in society; inflexible, rigid, uniform; everyone subject to the same standard of care . . . THEREFORE we don’t make any allowances for individual shortcomings (in fact, sometimes we demand that people do the impossible) ex. D is stupid; that D has to behave like a reasonably prudent person; he stores gas in a garage and he says I didn’t know better b/c I’m stupid – doesn’t matter ex. D is mentally disabled = law demands the same D is not L b/c he did the best he could = WRONG ANSWER – have to do the reasonably prudent person even if its impossible

Question 68

You have to act as a reasonably prudent person (negligence/duty) even though _____.

Answer 68

it is impossible to do so ex. D is stupid; that D has to behave like a reasonably prudent person; he stores gas in a garage and he says I didn’t know better b/c I’m stupid – doesn’t matter ex. D is mentally disabled = law demands the same D is not L b/c he did the best he could = WRONG ANSWER – have to do the reasonably prudent person even if its impossible

Question 69

T/F. The standard for duty of a mentally disabled person is the reasonably prudent disabled person.

Answer 69

F. You have to act as a reasonably prudent person (negligence/duty) even though it is impossible for you to do so. Ratchet up, never down.

Question 70

T/F. The reasonably prudent person is always the standard for duty in negligence.

Answer 70

F. o EXCEPTION: if the D has superior skill or knowledge, the standard is a reasonably prudent person with that skill or knowledge ex. Dave is a pro race car driver; he needs to drive his car in private like a reasonable person with that superior skill; if he hits a skid, he needs to use all the skill ex. Don dumb but knows that the street has limited visibility b/c lived there for 10 years; he has superior knowledge BUT NOTE: you can ratchet up but not downo EXCEPTION: D’s physical characteristics; where relevant, the reasonably prudent person will have the same characteristics as the D if blind; reasonably prudent person that cannot see if 6’4 and relevant then RPP for person of that height

Question 71

2 exceptions to reasonably prudent person standard for duty . . .

Answer 71

o EXCEPTION: if the D has superior skill or knowledge, the standard is a reasonably prudent person with that skill or knowledge ex. Dave is a pro race car driver; he needs to drive his car in private like a reasonable person with that superior skill; if he hits a skid, he needs to use all the skill ex. Don dumb but knows that the street has limited visibility b/c lived there for 10 years; he has superior knowledge BUT NOTE: you can ratchet up but not downo EXCEPTION: D’s physical characteristics; where relevant, the reasonably prudent person will have the same characteristics as the D if blind; reasonably prudent person that cannot see if 6’4 and relevant then RPP for person of that height

Question 72

6 duty scenarios that do not require the regular standard of care . . .

Answer 72

i. childrenii. negligence claims against professionals / malpracticeiii. premises liabilityiv. Statutory Standards of Carev. Duties to Act Affirmativelyvi. Negligent Infliction of Emotion Distress

Question 73

Standard of care that applies when child is D and result . . .

Answer 73

o under 5 = 0 duty of care, never L for negligenceo 5-18 = owe the care of a hypo child of similar age, experience, and intelligence acting under similar circumstances how alters basic default approach = almost exact opposite of RPP – it is entirely subjective; differs for every kid in our society; turns out to be very pro-D standard of care ex. first time on tricycle considered; if he’s stupid, taken into accounto EXCEPTION: if the child is engaged in an adult activity (for the most part – operating a vehicle with a motor)

Question 74

A different standard of care applies when a child is a D UNLESS _____.

Answer 74

if the child is engaged in an adult activity (for the most part – operating a vehicle with a motor)

Question 75

The standard of care that applies to children Ds in a negligence case is a _____ standard, which is different than the reasonable prudent person standard which is a _____ standard. As a result, the standard applying to children _____.

Answer 75

subjective objectivediffers for every kid in our society; turns out to be very pro-D standard of care

Question 76

What is the standard of care applied to ii. negligence claims against professionals / malpractice and who are professionals?

Answer 76

o STANDARD: professional is obligated to exercise the skill and knowledge by members of that profession in good standing in similar communities (another way of saying it: the pro must exercise the care of an avg. member of the same profession in a similar community) now not with an imaginary person, but with real world colleagues; you open your eyes and good look; it takes a lot of judgment from the jury; rely on real world data; it’s a duty to conform (going to do brain surgery, do it the same way the other brain surgeons do it); demands this b/c collective wisdom on how to do acts and any one pro should conform b/c the group has the greater wisdom DO NOT SAY THAT a doctor must act like a reasonable doctor – reasonable is a legal term of art that implicates an imaginary standard and that’s not it – not pretend will need an expert witness NOTE: 2 types usually: (1) error in execution (slip of the hand, writes wrong dosage = do not raise intellectually difficult questions about duty of care – the custom of the profession is to cut the right nerve; (2) diagnosis or treatment plan = usually more questions b/c doctor using more judgment similar communities = primary care physicians only required to perform similar to similar sized areas – big city doctor compared to big city doctor and small town doctor to small town doctoro governs every professional in our society (doctors, lawyers, architects, and any other exotic one that might come up, chiropractors)

Question 77

T/F. A doctor must act like a reasonably prudent doctor in his area.

Answer 77

F. DO NOT SAY THAT a doctor must act like a reasonable doctor – reasonable is a legal term of art that implicates an imaginary standard and that’s not it – not pretendTHE CORRECT STANDARD IS: a professional is obligated to exercise the skill and knowledge by members of that profession in good standing in similar communities (another way of saying it: the pro must exercise the care of an avg. member of the same profession in a similar community)

Question 78

FL distinctions to standard of care applied in negligence claims against professionals . . .

Answer 78

o FL DISTINCTIONS Civil Procedure: adv. notice of sue and pre-merit evaluation Special no-fault scheme for obstetricians to protect if baby born with neurological – if agree, more speedy and guaranteed recovery NO LOCAL STANDARD OF CARE – Appalachia and Miami doctor treated the same *******

Question 79

How does premises L impact the standard of care? Note special cases and FL distinctions.

Answer 79

o Generally: D possess a piece of property; P comes on to property and encounters hazardous condition; What degree of duty to prevent entrant from getting hurt? (depends into what type of entrant)o 4 types of entrants: undiscovered trespasser = zero duty of care; they always lose• logic: they are an unforeseeable victim discovered/anticipated trespasser (known or should expect would be there) = duty to protect only from those hazards that meet a 4 part test• ex. if there has been pattern of trespassers in the past• Test: (1) condition must be artificial (man-made; ex. of artificial is ice); (2) must be extremely dangerous; (3) must be concealed from that trespasser (they can’t see it for themselves – no duty to protect from open and obvious condition); (4) property possessor had prior knowledge of it (aka. known man-made death trap on the land)• ex. known footbridge is rotten and you know but it looks like its fine licenses: enter with permission or implied permission, but DO NOT confer an economic benefit to the possessor (ex. social guest; girl scout cookie; J witnesses) = must protect from anyone that meets a 2 part test• TEST: (1) concealed from licensee; (2) known in advance by property processor (aka, must protect from ALL KNOWN traps) (ex. an area rug on hardwood floor that doesn’t have pad) invitee: enter with permission and EITHER confer an eco benefit or the property is open to the public generally even if no eco benefit (ex. when you go to the mall; go to your barber; go to visit a friend in hospital) = 2 part test• TEST: (1) must be concealed; (2) possessor must know of the hazard in advance OR could have discovered through a reasonable inspection (aka, all reasonably knowable traps on the land) – knew or should have known (turn on whether a reasonable store would have known – didn’t actually need knowledge)• ex. foreign substance on the floor that is a tripping hazard, slip and fall caseo SPECIAL CASES: firefighter rule: firefighters and police officers never recover for injuries that are inherent risks of their occupation (if you are negligent and as a result, the firefighter gets burned, they can’t recover against you child trespassers: trespassing children are owned a duty of reasonable prudence under the circumstances with regard to any artificial condition on the property• key factor: is there something on the property that would draw children in• FL DISTINCITION: in multistate, could be attracted by object A, but injured by B and they are L; in FL, child must be injured by the thing that lured them on to the lando FL DISTINCTIONS: social guests are called “licensees by invitation” and they are treated like invitees in the multistate system (i.e. they get more protection) other types, called uninvited licensees (the J witness), they have permission but are entering for own convenience = treated like a discovered trespasser (i.e. known man made death traps) in other words, there are no licensee categories any more: only invitees, discovered trespassers, and undiscovered trespassers by statute: a person engaged in a felony on property gets no duty of care; never L to someone committing a felony on your property (that’s the CL rule for the most part b/c most felons are uninvited) o Exam Taking Tip: if you have a duty, the way to satisfy the duty is to either fix the problem OR GIVE A WARNING• aviso piso mojado

Question 80

4 types of entrants for premises L standard of care in negligence cases

Answer 80

undiscovered trespasser = zero duty of care; they always losediscovered/anticipated trespasser (known or should expect would be there) = duty to protect only from those hazards that meet a 4 part testlicensees: enter with permission or implied permission, but DO NOT confer an economic benefit to the possessor (ex. social guest; girl scout cookie; J witnesses) = must protect from anyone that meets a 2 part testinvitee: enter with permission and EITHER confer an eco benefit or the property is open to the public generally even if no eco benefit (ex. when you go to the mall; go to your barber; go to visit a friend in hospital) = 2 part test

Question 81

Standard and test for discovered/anticipated trespasser (entrants for premises L standard of care in negligence cases)

Answer 81

•duty to protect only from those hazards that meet a 4 part test Test: (1) condition must be artificial (man-made; ex. of artificial is ice); (2) must be extremely dangerous; (3) must be concealed from that trespasser (they can’t see it for themselves – no duty to protect from open and obvious condition); (4) property possessor had prior knowledge of it (aka. known man-made death trap on the land)• ex. known footbridge is rotten and you know but it looks like its fine

Question 82

Standard and test for licensees (entrants for premises L standard of care in negligence cases)

Answer 82

 licensees: enter with permission or implied permission, but DO NOT confer an economic benefit to the possessor (ex. social guest; girl scout cookie; J witnesses) = must protect from anyone that meets a 2 part test• TEST: (1) concealed from licensee; (2) known in advance by property processor (aka, must protect from ALL KNOWN traps) (ex. an area rug on hardwood floor that doesn’t have pad)

Question 83

Standard and test for invitee (entrants for premises L standard of care in negligence cases)

Answer 83

 invitee: enter with permission and EITHER confer an eco benefit or the property is open to the public generally even if no eco benefit (ex. when you go to the mall; go to your barber; go to visit a friend in hospital) = 2 part test• TEST: (1) must be concealed; (2) possessor must know of the hazard in advance OR could have discovered through a reasonable inspection (aka, all reasonably knowable traps on the land) – knew or should have known (turn on whether a reasonable store would have known – didn’t actually need knowledge)• ex. foreign substance on the floor that is a tripping hazard, slip and fall case

Question 84

Special cases for entrants for premises L standard of care in negligence cases . . .

Answer 84

o SPECIAL CASES: firefighter rule: firefighters and police officers never recover for injuries that are inherent risks of their occupation (if you are negligent and as a result, the firefighter gets burned, they can’t recover against you child trespassers: trespassing children are owned a duty of reasonable prudence under the circumstances with regard to any artificial condition on the property• key factor: is there something on the property that would draw children in• FL DISTINCITION: in multistate, could be attracted by object A, but injured by B and they are L; in FL, child must be injured by the thing that lured them on to the land

Question 85

FL distinctions in entrants for premises L standard of care in negligence cases . . .

Answer 85

o SPECIAL CASES: firefighter rule: firefighters and police officers never recover for injuries that are inherent risks of their occupation (if you are negligent and as a result, the firefighter gets burned, they can’t recover against you child trespassers: trespassing children are owned a duty of reasonable prudence under the circumstances with regard to any artificial condition on the property• key factor: is there something on the property that would draw children in• FL DISTINCITION: in multistate, could be attracted by object A, but injured by B and they are L; in FL, child must be injured by the thing that lured them on to the lando FL DISTINCTIONS: social guests are called “licensees by invitation” and they are treated like invitees in the multistate system (i.e. they get more protection) other types, called uninvited licensees (the J witness), they have permission but are entering for own convenience = treated like a discovered trespasser (i.e. known man made death traps) in other words, there are no licensee categories any more: only invitees, discovered trespassers, and undiscovered trespassers by statute: a person engaged in a felony on property gets no duty of care; never L to someone committing a felony on your property (that’s the CL rule for the most part b/c most felons are uninvited)

Question 86

If you have a duty, the way to satisfy it is to . . .

Answer 86

fix the problem ORGIVE A WARNING

Question 87

How is a statutory standard used by a P in a negligence case does a statutory standard of care give rise to?

Answer 87

negligence per secriminal statute that regulates behavior that also causes injury and the P will try to use the statute “borrow” the substantive component of the criminal law and use it as the duty standard – instead of with reasonable person, they had a duty to stop at the red light. Violation of that stat command is violation of the duty of care – NEGLIGENCE PER SE negligence per se

Question 88

When does a statutory standard of care give rise to negligence per se and exceptions?

Answer 88

o 2 part test P must demonstrate that he is a member of the class of persons that the statute seeks to protect AND accident is in the class of risks that the statute seeks to prevento cluster of statutes that almost always give rise to negligence per se = motor vehicle statuteo NOTE: motor to obvious; they test on other things: ex. relax, gets stoned, huge explosion, gas had built up into cloud; class A misdemeanor – more than 1 year. What risk criminalizing MJ designed to protect? They weren’t thinking about people blowing up their apartments. Designed to protect user. o EXCEPTIONS: where meets the test but still don’t use statutory compliance would be more dangerous stat compliance impossible under the circumstances

Question 89

FL distinction with respect to statutory standard of care case . . .

Answer 89

o FL DISTINCTION: traffic violation is only evidence of negligence – means D can rebut and explain (my friend was in the car with me and having a heart attack – I behaved like a reasonable person)

Question 90

How do duties to act affirmatively impact the duty of care analysis?

Answer 90

o there are NO DUTIES to act affirmatively – i.e. never have a duty to engage in an activity – if you don’t want to get in the car, you don’t have to; only when you choose to get in your car that you must do so as a reasonably prudent persono on bar: no duty to rescue; they will try to distract you with irrelevancies. appeal to your emotion; D cold heartedo EXCEPTION: if there was a preexisting relationship; historically had to be somewhat formalized (common carrier; innkeeper) / modern trend: two people go to dinner (aka, if stranger, no duty to rescue) if D caused the peril  NOTE: DUTY IS TO ACT REASONABLY UNDER THE CIRCUMSTANCES, but you are not obligated to put your own life in peril. (hotel on fire = call fire department, increase water pressure on sprinkler) if no duty to rescue, but do any way, you could be L; FL DISTINCTION: good Samaritan statute but mostly meaningless

Question 91

T/F. If D caused the peril, D has a duty to risk his life to save yours.

Answer 91

F. NOTE: DUTY IS TO ACT REASONABLY UNDER THE CIRCUMSTANCES, but you are not obligated to put your own life in peril. (hotel on fire = call fire department, increase water pressure on sprinkler)

Question 92

What are the negligent infliction of emotional distress scenarios and how does NIED impact the duty standard? Note any FL distinctions.

Answer 92

creates a duty; generally a careless D, but no physical injury to P 3 scenarios:• near miss: P put in a zone of danger (near miss) + they were emotional hurt by it (almost hits him with the car and felt like he was going to die - anxiety) + suffered subsequent physical manifestation flowing from the incident (he has a heart attack; break out in hives+ FL DISTINCTION: not enough that zone of danger – has to be SOME contact with your body; “physical impact” – the side mirror disturbs his tie; the pellets of gravel hit his body = satisfies• bystander case: D badly injures or kills X, and P is sad b/c P is injured or dead+ different emotion from near miss; sadness vs. anxiety+ must be close family member (spouse, child and parent – don’t worry about the rest) AND+ P must see as it happened (FL DISTINCTION: if you arrive on the scene while the injured party is still there; don’t have to see)• relationship cases: preexisting business relationship + highly foreseeable that careless performance will cause distress+ ex. patient and medical lab; totally foreseeable that lab screw up will cause distress; positive HIV when not positive; or lost stay of execution paperwork

Question 93

How is a “near miss” situation (negligence/duty of care/situations where the duty of care is altered from default/NIED) treated in FL?

Answer 93

• near miss: P put in a zone of danger (near miss) + they were emotional hurt by it (almost hits him with the car and felt like he was going to die - anxiety) + suffered subsequent physical manifestation flowing from the incident (he has a heart attack; break out in hives+ FL DISTINCTION: not enough that zone of danger – has to be SOME contact with your body; “physical impact” – the side mirror disturbs his tie; the pellets of gravel hit his body = satisfies

Question 94

How does P prove breach and alternative?

Answer 94

a. Generally: P must identify specific wrongful conduct + give theory on why wrongfuli. the bad behavior can be action or inactiono action: ex. 8 martinis b/f driving; just give obvious theory . . . reasonable people don’t drink before etc. b. res ipsa

Question 95

What is required of P to use res ipsa?

Answer 95

o 2 part showing: accident was one normally associated with negligence (an appeal to common knowledge; when barrels fall out of windows, something went wrong – maybe they were stacked to high; properly handled, barrels stay in the building) accident probably due to someone in D’s position (evidence: ITEM WAS IN exclusive control of D)o substitutes for evidence of breach BUT DOESN’T ALWAYS MEAN P wins = it’s a ticket into the jury room

Question 96

T/F. Res ipsa means P automatically wins.

Answer 96

False. o substitutes for evidence of breach BUT DOESN’T ALWAYS MEAN P wins = it’s a ticket into the jury room

Question 97

Rules on factual causation . . .

Answer 97

i. where P establishes link between breach and injury sufferedii. NOTE FOR SOUND OF ESSAY: Ds are not factual causes; breaches are factual causes, so when writing: Dave’s breach was a factual cause. ALSO, never say “the cause;” always “a cause.” infinite number of reasons for anything – decision to be in class is b/c went to law school etc. iii. RULE (but for test): P argues that but for the breach, he would be uninjured today. (parallel universe everything happens the same except for the breach)iv. ALTERNATE RULES: o merged causes: 2 negligent Ds; both release a destructive force; the forces merge to hurt P ex. 2 fires; Dave smoking a cigarette creates forest fire (FIRE A); camper (FIRE B); they combine to burn his house TEST: was the breach a “substantial factor”• substantial factor if it could have done it by itself RESULT: joint Lo unascertainable cause case: (Summers v. Tice)  ex. 3 people quail hunting; shotgun; fire in front of Moe; one pellet hits Moe and blind; one D blinded and one caused nothing; who fired the pellet? the fired at the same instance – 50/50 . . . can’t show more likely than not – shift the burden of proof  RULE: it is up to do D to show wasn’t them – joint and several L

Question 98

Merger applies to showing the _____ element of negligence. The test is _____. The result is that _____

Answer 98

causationmerged causes: 2 negligent Ds; both release a destructive force; the forces merge to hurt P ex. 2 fires; Dave smoking a cigarette creates forest fire (FIRE A); camper (FIRE B); they combine to burn his house TEST: was the breach a “substantial factor”• substantial factor if it could have done it by itself RESULT: joint L

Question 99

The unascertainable cause case applies to showing the _____ element of negligence. The result is that _____.

Answer 99

causationRULE: it is up to do D to show wasn’t them – joint and several L

Question 100

The P is trying to prove _____ with proximate cause, and the test for that is _____.

Answer 100

fairness (fair to hold D L)foreseeability

Question 101

The “well settled quartet” with respect to proximate cause are . . .

Answer 101

o intervening medical negligence: D runs red light; cast put on by incompetent doctor; gang green; amp. leg = L for amp. leg – medical malpractice foreseeable.o intervening negligent rescue: broken leg man; drags to side; dislocated shoulder = he’s L for broken leg and shouldero intervening protection or reaction forces: other peds panic and in reaction they stamped to get out of the way; Nike on forehead of P = D is Lo subsequent disease or accident: guy on crutches b/c of accident; falls; D the prox cause

Question 102

What do we have to know about damage element of negligent for purposes of the bar?

Answer 102

a. egg shell scull principle: D L for all harm done EVEN if surprisingly great in scope; take your P as you find you Pi. ex. neighbor invites to cocktail party; drunk; bump into other guest; falls; hurt; Sally Fields with brittle bones = have to pay her for that – Boniva. ii. APPLIES TO EVERY TORT ON THE BAR – INCLUDING INTENTIONAL TORTSb. FL DISTINCTIONS: limits on punitive but not tested

Question 103

The egg shell principle applies to which torts?

Answer 103

all of themegg shell scull principle: D L for all harm done EVEN if surprisingly great in scope; take your P as you find you P

Question 104

Affirmative defense to negligence . . .

Answer 104

1. comparative negligence: any evidence that the P has not been appropriately careful can be introduced by the D (ex. violate a statute like J-walking) – admissible and relevant and weight each by jury; give percentage numbers to P and D; once % made, P reduced damagesa. recovery reduced by own percentage faultb. FL DISTINCTION: if P was drunk + greater than 50% = P recover 0

Question 105

In FL, P was drunk and was greater than 50% L in comparative negligence, then P can recover _____.

Answer 105

0

Question 106

Types of strict L . . .

Answer 106

A. Injuries cause by animals (2)B. Abnormally Dangerous ActivitiesC. SL for Products (don’t assume b/c product its SL)

Question 107

Types of SL for injuries caused by animals, tests, and FL distinctions . . .

Answer 107

a. domesticated animals: house pets and livestock = NOT STRICLY L, HOWEVERi. yes SL if knowledge of vicious propensitieso not occasional kick by horseo usually dog bites; once it has previously bitten = knowledge that vicious propensities (bites 2-infiniti are SL)o BUT NEVER SL if bites trespasserii. FL DISTINCTION: strict L for dogs REGARDLESS of vicious propensity HOWEVER, the rule does not apply to trespasser AND no SL to visitor etc. but has to have two words: “BAD DOG”b. wild animals = SLi. REGARDLESS OF ALL THE SAFETY PRECAUSIONS! Dave with Tiger and a million locksii. what’s a wild animal? it will be obvious

Question 108

FL distinction with respect to SL and dogs . . .

Answer 108

a. domesticated animals: house pets and livestock = NOT STRICLY L, HOWEVERi. yes SL if knowledge of vicious propensitieso not occasional kick by horseo usually dog bites; once it has previously bitten = knowledge that vicious propensities (bites 2-infiniti are SL)o BUT NEVER SL if bites trespasserii. FL DISTINCTION: strict L for dogs REGARDLESS of vicious propensity HOWEVER, the rule does not apply to trespasser AND no SL to visitor etc. but has to have two words: “BAD DOG”

Question 109

Test for “abnormally dangerous activity” for SL purposes and types of well settled “abnormally dangerous activities” . . .

Answer 109

1. TESTa. creates foreseeable risk of harm, even when reasonable care is exercised ANDb. activity not common in community where D conduct it2. Abnormally Dangerous Activitiesa. blastingb. extremely toxic materials (live Ebola virus)c. nuclear energy or radioactive material3. Safety precautions are irrelevant

Question 110

_____ are irrelevant for purposes of SL.

Answer 110

safety precautions (ex. wild animal well chained and in cage that is checked and guarded 24/7)

Question 111

Elements of SL for products . . .

Answer 111

1. ELEMENTS:a. D must be a merchanti. one who routinely deals in goods of this typeo versions:  casual sellers: ebay, garage sale = NOT a merchant service providers: restaurant, doctor, hair salon, makes product incidental to service = NOT merchant for those products (doctor does not deal in chairs) commercial lessors (those who rent) = YES (car rental company) every party in a distro chain is a merchant = YES (Home Depot and Black and Decker) (i.e. no privity of contract requirement)b. product must be defective (3 kinds)i. manufacturing defect: differs from all other on assembly line in a way that makes it more dangerous would expect (aka, the one in a million) – one in a million hair dryer etc. o safety precautions irrelevant - - - we x-ray every can of tuna fishii. design defect (imagined alternative-if we can imagine the alternative then L)o imagined alternative must be safer ANDo economical (about same cost or a little more) ANDo must be practical (can’t make the product hard to use ex. more slats on cribiii. information defecto has residual risks (those that cannot be designed out) that consumer cannot perceive ANDo lacks adequate warnings AND adequate: not all warnings not equal – in pg. 6 of the instructions; bilingual community; pictures instead of wordso product has not been altered AND presumption that it has not been if has moved in ordinary channels of distro (got it from Home Depot and they got it from manufacturer) only relevant if bought used product – have to show it didn’t have the safety guard when it left manufacturers/vendors handso P is making a foreseeable use (need not be an intended use) use a stair to stand out – foreseeable use even though not intended

Question 112

3 types of defects in products and impact, if any . . .

Answer 112

b. product must be defective (3 kinds)i. manufacturing defect: differs from all other on assembly line in a way that makes it more dangerous would expect (aka, the one in a million) – one in a million hair dryer etc. o safety precautions irrelevant - - - we x-ray every can of tuna fishii. design defect (imagined alternative-if we can imagine the alternative then L)o imagined alternative must be safer ANDo economical (about same cost or a little more) ANDo must be practical (can’t make the product hard to use ex. more slats on cribiii. information defecto has residual risks (those that cannot be designed out) that consumer cannot perceive

Question 113

Affirmative defense for SL . . .

Answer 113

i. comparative responsibility: evidence that P acted stupidly, assign percentage and decrease damages accordingly (one in a million toaster that sparks but he doesn’t unplug)

Question 114

Discuss nuisance tort . . .

Answer 114

V. Nuisance (very subjective)A. ELEMENTS:1. interference with ability to use and enjoy property to an unreasonable degreea. most cases: inconsistent land use; smoke factory next to asthma place ORb. shining lights into neighbors propertyB. RESULT: courts balance interestsC. EXAM: find the exam answer that embodies the standard as close as possible; they can’t tell you to decide if something is or is not nuisance

Question 115

What are the misc. topics to consider on torts issues?

Answer 115

1. Vicarious L (** most common and most tested) 2. Co-Defendants (joint and several L)3. Loss of Consortium

Question 116

Types of vicarious liability and impact on litigation . . .

Answer 116

a. employer/employee: employer can be held VL for act of employee when committed within the scope of employmenti. intentional tort in scope of employment = almost always not VLii. BUT, if employer authorized to use force (night club bouncer punches someone for no good reason) = then yes within scope ORiii. job that leads to controversy (repo man) = yes, VLiv. AND, any intentional tort committed in misguided effort to serve the employer – security guard checks every 4th customerb. hiring party/independent contractori. No L, UNLESSii. independent contractor hurts and invitee (painters in route hit someone = NL; but if painting on store and ladder falls = yesc. auto owner/driveri. No L, UNLESSii. you are doing an errand for me (pick up pizzas for me)iii. FL DISTINCTION: you are VL who is using your car with permission (permissive use doctrine; limits damages)d. parents/kidsi. parents not VL for torts of their kids

Question 117

Things to keep in mind with respect to co-defendants of torts . . . (note FL distinction)

Answer 117

2. Co-Defendantsa. FL DISTINCTION: FL has abolished joint and several – jury allocates by percent – no D mays more than fair share (P recovers only amount designated from each D)b. MBE joint and several: P sues T, D, and H – recovers all the money from T, even though more than his fair share . . . jury still assigns percentages . . . 10% to T, 30%, 60% . . . P went after T, then T has to go after D and H. i. EXCEPTION: where out of pocket gets all money backo VL case – indemnification . . . ex. I get 100% back; A sends for pizza in B’s car . . . B VL, A gets all money backo retailer held SL from manufacturer; Macy’s gets the money back from Cuisinart

Question 118

What is indemnification with respect to tort damages?

Answer 118

in a vicarious L case where A gets 100% reimbursement from employer . . . ex. I get 100% back; A sends for pizza in B’s car . . . B VL, A gets all money back

Question 119

What can you recover for in a loss of consortium case?

Answer 119

a. V married; uninjured spouse gets a separate and new cause of action against all the D; it’s derivative meaning that any defense available in V case can be used against spouseb. 3 things can recover for (categories of damage):i. loss of services: no one to cook, clean, lawn, need to hire someone maybeii. loss of society: loss of companionship; no one to talk to; may need to see a shrink I’m so depressediii. loss of sex: I’m not getting laid

Question 120

T/F. Loss of consortium effectively gives a P a separate and new cause of action against the D.

Answer 120

true.