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torts - barbri Flashcards

1
Q

intentional torts have no ____ defenses

A

incapacity (minors can be held liable for torts, same with disabled people, intoxicated people)

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2
Q

7 intentional torts: 5/6 tested

A

1) assault
2) battery
3) false imprisonment
4) IIED
5) trespass to land
6) trespass to chattel
7) conversion

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3
Q

intent (2 types)

A

1) Specific—intent to bring about a specific harm
2) General—substantial certainty that tortious conduct will result from D’s act

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4
Q

transferred intent doctrine

A

we still hold D liable for an intentional tort even though:
1. different victim
2. different tort against diff person
3. same tort as intended but against diff person

for transferred intent to apply, there needs to be intent of the first tort tho!

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5
Q

transferred intent only applies to:

A
  1. assault
  2. battery
  3. false imprisonment

supplies the necessary intent from the first tort to the second.

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6
Q

billie Jean and Bobby are playing tennis. Every time Billie Jean is getting ready to serve, Bobby heckles her. After this had gone on for a while, Billie Jean trotted across the court rapidly and began swinging her racket wildly as she approached Bobby, in order to scare him. As she neared Bobby she slipped and the racket struck Bobby forcefully on his arm, breaking a bone. Billie Jean slipped because the owner of the tennis club had carelessly failed to clean some grease off of the court.​

Does Bobby have a valid battery claim against Billie Jean? Why or why not?​

A

yes because of the doctrine of transferred intent. she meets are the req’s for assault, so her intent can transfer over to Battery.

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7
Q

battery elements

A
  1. harmful or offensive/UNPERMITTED conduct by D
  2. to P’s person
  3. intent
  4. causation
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8
Q

question to ask for battery on whether harmful or offensive conduct

A

contact is offensive when it is unpermitted and if it would be considered offensive by a REASONABLE person and P has not consented (stroking hair)

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9
Q

for battery: to P’s person includes..

A

anything that plaintifff is touching or holding (even if they dont touch your body, anything that you are connected to)

Can be poison in your mouth too (need not be instantaneous)

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10
Q

for a battery, the contact does not need to be

A

instantaneous / there can be a delay. it can be indirect

ex. greasing a floor so that P will slip and fall

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11
Q

elements of assault

A
  1. D places P in reasonable apprehension
  2. of immediate battery
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12
Q

assault: what does apprehension mean

A

P has awareness/knowledge of D’s act and has a reasonable expectation that he is about to face an immediate or harmful/offensive conduct (you have to see it coming, cant be oblivious)

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13
Q

you’re sleeping, I walk about with a stick and am about to hit you. Assault?

A

No, you did not have an apprehension/knowledge that the battery was coming your way.

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14
Q

assault does not require

A

fear

ex. little guy about to hit the rock, rock is calm. but, apprehension is still met and he can recover under assault.

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15
Q

assault: reasonable apprehension requires that plaintiff knows an immediate offensive contact is coming their way. what if they are being threatened with an unloaded gun?

A

take a trip into P’s head and determine whether the apprehension/knowledge was reasonable.

was it reasonable to think that a guy holding a gun is holding a loaded gun? probably yes.

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16
Q

what is not enough for second element of assault?

A
  1. words or threats are not alone bc lack immediacy (words are CHEAP), unless coupled with some overt act (weapon, clenching fists)
  2. threats of future harm/battery not enough (im gonna beat you up tomorrow, not immediate)
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17
Q

raises hand up to slap you, “if you weren’t my best friend, I would slap you.” assault?

A

no, words can destroy immediacy. words negate the conduct

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18
Q

false imprisonment elements

A
  1. act/omission of restraint or confinement
  2. P is confined to a bounded area
  3. P is aware of being confined OR harmed by it (!!)
  4. intent
  5. causation
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19
Q

when can an omission be a restraint for false imprisonment

A

failure to act can be a restraint if there is a legal duty

(ex. airline workers leaving someone in a wheelchair on a flight)

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20
Q

roomie locks your door at night while your asleep, but its unlocked when you wake up, false imprisonment?

A

no - you need to be aware of being trapped.

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21
Q

false imprisonment: an area is not considered “bounded” if

A

there is a reasonable means of escape that P can reasonably discover

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22
Q

false imprisonment: a “reasonable” way out cannot be: 4

A

1) dangerous
2) disgusting (rat infested sewer pip)
3) humilitating (naked only way out is to be in public area)
4) hidden (secret passage way)

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23
Q

remember for ALL intentional torts, what is NEVER considered?

A

hypersensitivity of P is always ignored.

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24
Q

what constitutes restraint? (special! tested)

A
  1. threats
  2. invalid use of legal authority
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25
Q

IIED elements

A
  1. extreme and outrageous conduct by D
  2. severe emotional distress in P
  3. intent/recklessness
  4. causation
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26
Q

IIED: what does extreme and outrageous conduct mean? (MEMORIZE)

A

conduct that exceeds the bounds of decency in society

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27
Q

what is not considered outrageous for IIED?

A

Mere insults alone.

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28
Q

what are hallmarks of conduct that is/may be outrageous for IIED? (non exhaustive)

A
  1. repetitive conduct (debt collection by harassment/threats that is repetitive AF)
  2. defendant is common carrier or innkeeper (flight attendant says your ugly)
  3. plaintiff is member of fragile class
  4. D target’s P’s KNOWN sensitivity (fear of kittens)
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29
Q

outrageous conduct for IIED: plaintiff is a member of fragile class - what is a fragile class? HEAVILY TESTED

A

1) young kid
2) old people (elderly)
3) pregnant women (have to know she is pregnant)

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30
Q

IIED element 2: severe emotional distress - does the P need to prove the distressed caused in anyway?

A

no, no physical symptoms necessary. its a jury question

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31
Q

“Mary was mildly annoyed, so she sued for IIED.” Valid?

A

No, mild annoyance is not severe emotional distress. the test drafters are stipulating to the fact that an element is not met.

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32
Q

3 Intentional Torts to property

A
  1. trespass to land
  2. trespass to chattels
  3. conversion
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33
Q

Trespass to land elements:

A
  1. physical invasion by D
  2. of P’s property
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34
Q

Can you be trespassing to land if you do not know you are trespassing?

A

Yes, awareness not needed.BUT, a deliberate act is required! (just a deliberate act to enter the land)

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35
Q

physical invasion, trespass to land: 2 types that satisfy the first element

A
  1. by person
  2. tangible object (cant be music from speakers, needs to be a rock)
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36
Q

trespass to land: P’s property element, what can this include?

A

land includes air above/soil below to reasonable distance

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37
Q

elements of trespass to chattel and conversion (theft and vandalism)

A

1) D intentionally interferes with P’s right of possession in tangible personal property (chattel)
2) intent
3) causation
4) damages

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38
Q

two big differences between trespass to chattel and conversion

A

1) the difference is the level of interference with P’s property
2) the damages P can recover

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39
Q

difference between trespass to chattel and conversation

A

difference is the degree of interference with P’s property

Trespass—minor interference or damage, small harm

Conversion—significant interference or damage that justifies D paying the chattel’s full value, big harm

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40
Q

difference between trespass to chattel and conversation damages

A

Trespass—P can recover cost of repair or rental value of chattel

Conversion—P can recover full market value at the time of conversion or repossess the chattel (replevin)

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41
Q

3 affirmative defenses to intentional torts

A
  1. consent
  2. protective privileges
  3. necessity defenses
  4. recapture of chattels
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42
Q

consent is a defense to…

A

all intentional torts

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43
Q

to use the consent defense, you need:

A

legal capacity (need to consider what the activity is and whether the circumstances allow the person to validly consent)

ex. drunks, mentally impaired, and young children are incapable of consenting to tortious conduct

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44
Q

Two types of consent for the defense:

A

1) express: P gives D verbal or written consent
2) implied: D can reasonably infer P’s consent based on custom or P’s observable conduct

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45
Q

2 types of implied consent for defense:

A

1) inferred based on custom and usage (ex. customary that ppl will shove you when you’re on a subway)
2) body language consent (observable conduct, ex. an extension of your hand for a handshake)

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46
Q

for implied body language consent, you need to make sure that the consent is

A

reasonable. Think of sexual intimacy situations - this is a jury question/close call

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47
Q

What makes express consent defense void? testable

A

fraud/duress - negates the consent

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48
Q

Scope of consent - defense

A

D can be held liable for conduct that exceeds the scope of P’s valid consent (express or implied)

ex. you give doctor consent to work on your knee, but then doctor says he gave you a nose job)

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49
Q

protective privileges (3)

A
  1. self-defense
  2. defense of others
  3. defense of property
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50
Q

the protective privileges all have the same framework:

A

1) reasonable belief tort is being or about to be committed
2) proper timing (during the event unfolding or imminent)
3) reasonable force - proportionate to threat of harm (not fist with nuclear weapon)

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51
Q

you cannot engage in self-defense…

A

to early (jump the gun) or too late (when no longer in heat of the moment)

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52
Q

shopkeeper’s privilege

A

defense of property - merchant can detain a customer if they have a reasonable belief the person shop lifted. but the

1) detention must be in a reasonable manner and
2) suspect can only be detained for a reasonable time

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53
Q

is there a duty to retreat for self-defense?

A

no duty to retreat in majority of states (stand your ground)

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54
Q

what type of force is NOT allowed to protect property?

A

deadly force is not allowed to protect property (property is less valuable than human life)

ex. spring gun case

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55
Q

even though someone is in their home, and they used deadly force, what may they try to argue in their defense?

A

self defense because there is a presumption that someone coming into your home is a deadly threat, unless the circumstances indicate otherwise.

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56
Q

for self-defense of property, really question whether..

A

the person is in their home (is a garage a home?)

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57
Q

necessity defenses only apply to

A

property torts (trespass to land, trespass to chattel, conversion)

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58
Q

two types of necessity defenses:

A
  1. public necessity: defendant acts in emergency to protect community
  2. private necessity: D acts in emergency to protect own interests
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59
Q

public necessity is a …
private necessity is a….

A

public- absolute defense (P cannot recover ANY damages)
private - limited or qualified defense (D must still pay compensatory damages, but not nominal/punitive damages) – only those damages for things actually harmed to D’s property

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60
Q

Can a trespasser with the private necessity defense recover for being kicked out by the homeowner?

A

yes they are considered privileged- can remain as long as emergency continues (a right of sanctuary)

Ex. trespassing to someones house for a reason that threatens your life, health, etc - blizzard

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61
Q

a landowner must usually do WHAT before defending her property?

A

Request to desist but not required where circumstances make clear that the request would be dangerous.

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62
Q

the only time force may be used to recapture a chattel is when

A

in hot pursuit of the one who has obtained possession wrongfully

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63
Q

recapture of chattels defense

A

D has a legal privilege to use peaceful means to recover possession of chattel taken unlawfully, and to use reasonable

can use non-deadly force ONLY if in fresh pursuit of the chattel-taker

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64
Q

4 elements of negligence

A

1) duty
2) breach
3) causation (factual and proximate)
4) damages

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65
Q

the duty element of negligence is predominantly about…

breach is primarily about…

A

duty - questions of law
breach - facts

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66
Q

what is duty (legally)

A

legally imposed obligations to take risk reducing precautions for the benefit of others

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67
Q

who do you owe a duty to under negligence?

A

foreseeable victims within the zone of danger!!!!!

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68
Q

what is the zone of danger for negligence

A

the area around Ds activities in which a P could foreseeably be injured

ex. if the question says that someone is super far, but they get hurt, they could be outside the zone of danger and cannot recover

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69
Q

where does the rescuer exception apply?

A

under duty (zone of danger) rule for negligence

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70
Q

what is the rescuers exception

A

rescuers are foreseeable and owed a duty of care (they satisfy duty element) - if D puts himself or another in danger and a third person attempts to rescue, D can be held liable for the rescuer’s injuries, even if unforeseeable

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71
Q

default standard of care for duty element of negligence

A

D’s duty is to behave like a reasonably prudent person acting under similar circumstances

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72
Q

the reasonably prudent person is a standard that requires D be compared to a hypothetical person. The RRP is considered to be someone with

A

D’s physical characteristics, but with no allowance for D’s shortcomings (objective standard)

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73
Q

will a mentally disabled / drunk person be compared to the standard of a RRP?

A

yes! it does not matter, RPP is an objective standard.

dont let your heart get in the way

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74
Q

Exceptions to RPP Standard for duty under negligence

A

1) Superior skill or knowledge (will be compared to RPP with the same superior skill or knowledge)
2) where RELEVANT incorporate defendant’s physical characteristics (blind, deaf, if really tall and it is somehow relevant to the case)

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75
Q

the RPP standard is the default for negligence. But, when can this standard be changed?

A

if a special standard of care applies

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76
Q

what are the special standards of care that change the RPP standard

A

1) children
2) professionals
3) possessors of real estate/land

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77
Q

Special standard of care for children

A

1) under age 5 - no standard
2) age 5-18 - hypo child of similar age/experience/and intelligence acting under circumstances (subjective flexible standard)

78
Q

the special standard of care for children ages 5-18 is…

A

pro-defendant/pro-kid.
considers age, experience, intelligence

79
Q

But what is the exception to the special standard of care for children?

A

If the child is engaged in adult activity (then RPP standard)

ex. operating a motorized vehicle, boats, farm equipment, snow mobiles

80
Q

what is the. special standard of care for professionals?

A

must act with the knowledge and skill of an AVERAGE member of their profession in good standing in similar communities - must conform to what is done by other colleagues/custom

(medical professionals/med mal claim)

81
Q

remember, if in a med Mal situation, a doctor is compared to a…

A

average doctor, NOT reasonable doctor/RPP. DONT say reasonable.

82
Q

what is the key word difference for the standard of care for professionals vs RPP standard

A

professionals are compared to the AVERAGE, not “reasonable” RPP.

No longer fictional RPP, we need an average standard for professionals based on fact or research.

83
Q

how do you educate the jury on a professional custom for the special standard for professionals?

A

Use an expert witness representing the national standard of care

84
Q

For the special standards of care for possessors of real estate/land, the possessor does not always need to be the

A

owner of the land (like in apartment situation)

85
Q

The special standard of care for possessors of land establishes the rule for duty to protect from

A

dangerous conditions.

Not activities conducted on land = use ordinary RPP standard of care standard of care

86
Q

duty of care for possessors of land: Unknown or undiscovered trespassers

A

no duty owed

87
Q

who are anticipated trespassers?

A

People that you know have trespassed in the past and have a pattern of trespassing! Seriously highly tested

ex. people that have consistently used your land in the past

88
Q

duty of care for possessors of land: known or anticipated trespassers

A

Duty if:
1) artificial condition (built by humans, not naturally occurring)
2) highly dangerous
3) concealed from trespasser (not open and obvious)
4) prior knowledge of it by possessor

89
Q

duty of care for known/anticipated trespassers: what is an artificial condition vs. naturally occurring condition

A

Natural - snow/ice

90
Q

licensees

A

Individuals that enter land with permission but without financial benefit to possessor (social guests)

91
Q

Test for protecting licensee:

A

duty if:
1) concealed from licensee
2) known by possessor

Must protect from ALL known traps!

92
Q

invitee

A

individual who enters land with permission for financial benefit on possessor

ex. includes when open to public at large

93
Q

test for duty owed to invitee

A

Duty if:
1) concealed from invitee
2) known by possessor or could have discovered through reasonable inspection (note: REASONABLE inspection)

94
Q

how to satisfy premises liability duty

A

1) eliminate the hazardous condition (repair/replace/remove)
2) warn about hazardous condition

95
Q

firefighting and cops are considered to be their own category of entrants. what is the duty owed?

A

No duty owed for risks inherent to job

96
Q

duty owed to trespassing children

A

reasonably prudent care under circumstances to protect from artificial hazards on the land

97
Q

licensee or invitee: who is one that gains entry onto the land giving NO financial benefit to possessor

A

licensee (social guests/EMS)
Invite does enter for financial benefit of possessor (public at large, business guest)

98
Q

What is negligence per se

A

plaintiff trying to show that an existing statute can establish the standard of care and the standard under the statute can replace common law

99
Q

Req’s for negligence per se

A

1) P is within protected class (patients, customers, etc)
2) Harm suffered is within risks statute is trying to prevent (class of risk)

100
Q

if a statutory standard does not apply under negligence per se, what standard of care do you apply now

A

apply the RPP standard

101
Q

exceptions when negligence per se will still not work, even when 2 part test is met:

A

1) compliance is more dangerous than non-compliance
2) compliance is impossible under the circumstances

USE RPP if these exceptions apply

102
Q

generally, there are NO duties to …

A

act affirmatively (no duty to undertake an activity/course of conduct). But, if you choose to act, must do so as reasonably prudent person under circumstances

ex. if you drive the car, gotta comply with RPP. But you have no legal duty to drive a car in the first place.

103
Q

if you encounter someone in peril, you do not need to

A

rescue (no duty to rescue) !!!!!

104
Q

exceptions to where there is a duty to act:

A

1) relationship between parties (innkeeper/guest, formal relationship)
2) defendant caused peril

105
Q

if you fit within an exception where there is an affirmative duty to act, what duty is owed?

A

What is reasonable under the circumstances. NOT a duty to rescue, duty to act reasonably under the circumstances

106
Q

Once you choose to rescue, you need to rescue like

A

a reasonably prudent person

107
Q

Good Samaritan laws

A

insulate negligent rescuers from liability

ASSUME THERE IS NO GOOD SAMARITAN LAW UNLESS SAID OTHERWISE!

108
Q

Negligent infliction of emotion distress

A

P may recover for emotional distress resulting from D’s negligence

109
Q

3 types of cases for negligent infliction of emotional distress where there is no physical harm at all, just emotional

A

1) near miss - almost died
2) bystander and sad
3) business relationship

110
Q

What is a near miss case

A

negligent infliction of emotional distress - no injury but you are messed up after

111
Q

Elements for Negligent Infliction of Emotional Distress - near miss cases

A

1) D’s negligence results in a close risk of bodily harm to P- P was put in “zone of danger”
2) D’s negligence results in P’s severe emotional distress

112
Q

bystander case for negligent infliction of emotional distress

A

D negligently injures 3rd try causing P emotional damages

113
Q

for both types of cases under Negligent Infliction of ED, what is the difference in emotions:

A

1) Near miss - scared bc you almost died
2) bystander - sad/grievance bc you saw someone killed before your eyes

114
Q

Elements of Bystander case for Negligent infliction of ED

A

1) Negligence
2) Plaintiff at 3rd party closely related
3) P was present at the scene and observed event
4) P personally observed or perceived the event

115
Q

Business relationship cases for negligent infliction of emotional distress - what are they

A

P can recover if highly foreseeable that careless performance by D will produce emotional distress AND need some valid business relationship/some type of relationship

ex. patient/medical lab - false cancer diagnosis
customer/funeral parlor - we lost ur family members remains

116
Q

what is NOT a valid business relationship where the ED is HIGHLY foreseeable (business relations)

A

Customer / Dry Cleaners - No recovery bc not highly foreesable emotional damagers

even if some weirdo actually freaked out about this

117
Q

Negligence Breach of Duty Element

A

D breaches his duty when his conducts falls short of standard of care owed under the circumstances

118
Q

Breach for negligence can be

A

an affirmative act or omission that is UNREASONABLE!

119
Q

res ipsa loquitor is ….

A

a substitute by plaintiff to prove breach of duty when they dont have enough evidence

A SUBSTITUTE WAY OF PROVING THE BREACH OF DUTY ELEMENT!

120
Q

elements of res ipsa for P to show:

A

1) accident is normally associated with negligence (would not happen unless someone was negligent)
2) Accident would normally be due to negligence of someone in D’s position (often satisfied by showing the conduct was within D’s exclusive control)

121
Q

if you satisfy res ipsa, what is the result?

A

No directed verdict, you dont ultimately win. You just get submitted to the jury!!!!!!! It just gives rise to an inference of negligence

122
Q

violation of a statute will establish a

A

conclusive presumption of duty and breach of duty

123
Q

negligence: 2 types of causation

A

actual cause: But for
Proximate: foreseeability

124
Q

but for test for causation

A

Injury would not have occurred but for act or omission

125
Q

D’s rebuttal to cause for negligence will always start with

A

even if for but for cause

126
Q

2 special scenarios where but for does not apply and a diff test applies

A

1) merged causes
2) unascertainable causes

Apply substantial factor test for merged causes
unascertainable causes shift the burden of poof to the defendants

127
Q

Merged causes (special case for causation, negligence)

A

2 D’s acting independently each commit a breach combining into single indivisible harm

2 negligently set fires

128
Q

If 2 defendants and 2 breaches, dont apply…… apply…….

A

no but for test, apply the substantial factor test

Defendant liable if breach contributed in signifcant/substantial way to ultimate injury

129
Q

If breach would have been able to cause entire harm if it had been the only breach…. it is a

A

substantial factor

130
Q

if merged cause scenario where both breaches found to be substantial fact

A

defendants held jointly and severally liable

131
Q

What is an unascertainable cause

A

2 acts, only one in which causes injury, but unknown which one

ex. 2 gun shots fired at the same time

132
Q

Unascertainable cause and burden of proof

A

shifts burden of proof to defendants

133
Q

proximate cause is primarily concerned with

A

Whether it is FAIR to hold D responsible for P’s injuries

134
Q

Foreseeability test for proximate cause

A

was outcome a foreseeable risk associated with breach?

135
Q

Foreseeability guidelines:

A

1) passage of time
2) geographic distance
3) prior occurence

These are rough guidelines!

136
Q

common foreseeable intervening forces:

MEMORIZE

A

1) medical malpractice/medical negligence
2) negligence of rescuers
3) protection or reaction forces
4) subsequent disaease or accident

137
Q

Eggshell Skull Doctrine

A

One P has established all other elements of a claim, P receives ALL damages suffered even if suprisingly great in scope

(you take your plaintiff as you find them)

138
Q

Eggshell skull rule applies to…

A

every tort claim (not limited to just negligence, also battery)

139
Q

one defense to negligence

A

comparative negligence

140
Q

what is comparative negligence

A

D shows P failed to exercise proper care for her own safety

141
Q

under comparative fault, jury will..

A

Jury will instructed to assign percentage of fault

142
Q

for comparative fault, P’s recovery will be reduced based on

A

P’s percentage of fault

143
Q

Generally, no strict liability for domesticated animals unless

A

you have knowledge of animal’s dangerous propensities UNLESS a trespasser on your land

ex. dogs biting humans

144
Q

at what point does your domesticated animal have dangerous propensities

A

first time, no strict liability.

Anytime after this, your dog likely has dangerous propensities

145
Q

You will never be strictly liable for a domesticated animal if..

A

there is trespasser on your land

146
Q

strict liability for wild animals

A

strict liability if possessed

147
Q

Abnormally dangerous activities

A

1) cant be made reasonably safe even with ordinary care
2) uncommon in area where conducted

148
Q

common areas of abnormally dangerous activities

A

1) explosives
2) dangerous chemical/biological materials
3) nuclear energy/high dose radiation

149
Q

Products liability claims can vary:

A

1) negligence claim
2) UCC - warranties
3) misrepresentation/fraud
4) strict liability

150
Q

just because you see a product, does not mean…

A

it is a strict liability claim. it can be negligence, UCC, etc.

151
Q

elements for strict liability for products

A

1) D is a merchant (not a casual seller/service provider)
2) product is defective (manufacturing defect, design defect)
3) product was not substantially altered since leaving D’s control
4) P was making a foreseeable use of product at time of injury

152
Q

element 3 to the strict liability for products test tends to drop out/not be tested because

A

there is a presumption that product moved in ordinary channels of distribution has no alteration

153
Q

A foreseeable use does NOT mean

A

intended or appropriate

(ex. standing on chair, vs sitting. the question is whether it is foreseeable that ppl will stand up on chairs - yes it is foreseeable)

154
Q

who is NOT a merchant for strict liability

who IS

A

NOT a merchant:
1) casual sellers
2) service providers

Is a merchant:
1) commercial lessor
2) everyone in distribution chain (retailer/wholesaler/manufacturer)

155
Q

manufacturing defect

A

product emerges from manufacturing different from others and more dangerous than consumers would expect

156
Q

design defect

A

risks associated with product’s design outweigh utility of design

157
Q

for design. defects, P must show:

A

alternative design
1) would have been safer
2) was practical
3) was economically feasible

158
Q

information defect:

A

hidden risks without adequate warnings/instructions - NOTE: adequate

159
Q

when is a warning adequate:

A

1) prominent
2) comprehensible
3) providing info about mitigating risk)

160
Q

affirmative defenses for strict liability torts

If Q says case is litigated in a jdx that applies traditional rules

A

Traditional rule is knowingly encountering dangerous situation bars recovery

161
Q

Unless question mentions traditional rules, what rule will apply for affirmative defenses for SL torts (not a traditional jdx)

A

Jury assigns percentages of comparative responsibility

162
Q

nuisance - what must be shown

A

SUBSTANTIAL/UNREASONABLE interference with use/enjoyment of property

A minor interference is not actionable

163
Q

vicarious liability

A

arises when D commits a tort against P and a third person is held liable due to his relationship with D

164
Q

vicarious liability for employer/employee

A

respondeat superior – employer can be held liable if employee acting within scope of employment at time of accident

165
Q

frolic or detour

A

if minor departure from work: detour and employer is still liable

If major departure: outside scope of employment and employer not vicariously liable

166
Q

intentional torts and vicarious liability

A

intentional torts are generally outside scope of employment

except when:

1) The job requires use of force (e.g., bouncer),
2) The job entails creating friction (e.g., bail bondsman), or
3) The intentional tort is done to further the employer’s goals (e.g., physically breaking up a fight in a store)

167
Q

if you are a bouncer, or an occupation that involves authorizations to use physical force, misuse of that force is

A

within the scope of employment and employer is vicariously liable.

168
Q

Independent Contractors liability and hiring party

A

Hiring party generally not liable for torts committed by IC

But business owner can be held liable if:

  1. for acts that are inherently dangerous or duties that are non-delegable
  2. Businesses that hold property open to the public have a non-delegable duty to keep premises safe for customers
169
Q

Joint and several liability

A

plaintiff can recover full damages from any D

170
Q

comparative contribution

A

defendant seeks compensation from co-defendants, in proportion to their % fault

171
Q

indemnification situations

A

Full reimbursement to out of pocket defendant

available when:
1) vicarious liability
2) strict liability if not a manufacturer

172
Q

loss of consortium

A

claim by spouse of injured party, derivative of injured party’s claim

(loss of household services, loss of society/companionship/ loss of sex)

173
Q

elements of defamation

A

1a) defamatory statement made
1b) that references P (any identifying info is ok)
2) publication (statement must be intentionally or negligently made to a third person)
3) falsity
4) fault (diff standards based on who P is)
5) damages

174
Q

what is a defamatory statement

A

statement that adversely affects reputation - must be based on specific facts

175
Q

can a statement of opinion be defamatory?

A

not generally. can only be defamatory if they IMPLY specific facts or a factual representation

176
Q

is name calling defamatory

A

no because it is not subject to a T/F test, not based on fact

177
Q

what if the person being defamesd is dead

A

not actionable then, you need to be alive at the time the statement is made

178
Q

private convos are

A

not defamation. they are hurtful, but not a valid publication for defamation

179
Q

fault required depends on plaintiff: (DEFAMATION)

A

1) private person: negligence
2) public figure: knowledge of falsity or reckless disregard of falsity (malice)

180
Q

libel and damages

A

defamation embodied in permanent form/writing/print (newspapers) (damages are presumed)

181
Q

slander per se and damages

A

words so clearly defamatory that ordinary person would understand injury (damages presumed) - spoken words

Common categories of slander per se: (if in these categories, damages are presumed)
1) business/profession
2) serious crime
3) serious sexual misconduct
4) P suffers from loathsome disease (venereal disease)

If you dont fall into these categories, you need to prove economic harm for slander other than slander per se.

182
Q

affirmative defenses to defamation

A

1) consent
2) privileges (absolute or qualified)

183
Q

absolute privilege defense to defamation

A

1) between spouses
2) officers of government in connection with official work

184
Q

qualified privilege

A

D’s liability for defamatory statements is limited where:

1) D invites the statement and/or recipient has an interest — e.g., employment reference, credit report, letter of recommendation
2) Statement is in the public interest — e.g., book reviews, statement to a parole board

185
Q

qualified privilege only applies to

A

statements made in good faith and relevant in scope

186
Q

Common interest privilege

A

qualified privilege for statements made to colleagues within the same org

187
Q

appropriation privacy tort and exception

A

Defendant uses P’s name/image for commercial purpose (applies to normal ppl too)

Exception: newsworthiness - no liability for use of Ps name or likeness for the purpose of reporting news

188
Q

intrusion privacy tort

A

invasion of P’s seclusion in way that would be highly offensive to reasonable person (peeping Tom)
need to be in a place of seclusion/private where you have a REP

189
Q

false light privacy tort

A

widespread dissemination of material falsehood about P that would be highly offensive to reasonable person (often a mischaracterization of P’s views or conduct)

not recognized in all states

190
Q

difference between damages between false light and defamation

A

false light: emotional damages
Defamation: economic damages

191
Q

disclosure privacy tort

A

widespread dessimination of confidential info about P not of legitimate concern to public and highly offensive to reasonable person (must be a truly confidential fact, cannot share with anyone)

(ex. if dan park sent your tax returns to a bunch of ppl, also NO disclosure claim when your out to all your friends but not your work)

newsworthiness exception: if matter of public concern, then it is not actionable

192
Q

affirmative defenses to privacy torts

A

1) consent to all 4 claims
2) absolute/qualified privilege for false light/disclosure claims

Bar (13 decks)

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