Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Torts II > Torts II final > Flashcards

Torts II final Flashcards

1
Q

Defamation Elements

A
  1. false statement of fact
  2. of and concerning the P
  3. tending to harm P’s rep
  4. publicized to 1+
  5. complying with 1stA standards
  6. Damages
  7. Defenses
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Publication within a corporation

A

Not a publication if employees of corp talking to other employees within the ordinary course of business

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Republication

A

Republication of defamatory content = liability

except – internet providers via CDA 230

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Distributors

A

Guy who takes the newspapers around and drops them off to people liable if told that the thing has defamatory content

Online distributors immune

Nonprint only liable if actual notice of defamatory content

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

1stA standard analysis

A

P must assert what kind of figure they are and prove D acted with the requisite level of intent/fault

Public officials –> decision making authority, elected or appointed

        Fault: Actual malice + stmt about them not         
        their agency

Public figure
general public figure –> actor, talk show
Involuntary –> wrong place wrong time

  fault: actual malice

Private figure –> ordinary person
fault: at least negligence unless matter of private
concern, then need actual malice to get
punitive/presumed damages

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Damages for libel

A

Presumed if meet PF case

Compensatory if prove evidence of extent of harm suffered

Punitive if show actual malice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Slander damages

A

Must prove special damages unless in 1 of the 5 per se categories

  1. commision of serious criminal offense
  2. loathsome communicable disease
  3. want of integrity in discharge of duties of employm.
  4. lack of ability in business/trade
  5. false accusations of fornication/adultery
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

constitutional defenses

A

must prove did not utter defamatory stmt w requisite fault and can rebut status of plaintiff

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

nonconstitutional defenses

A

truth –> absolute defense
consent –> absolute defense

privilege –> absolute and qualified
absolute:
legislative
high gov official
litigation
officials who make reports in official duty
spouse

qualified:
common interest
fair report
fair comment
employer reference

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

1stA free speech clause analysis steps

A
  1. what action has gov taken affecting speech rights?
  2. content based or content neutral?
  3. facial or as applied?
  4. doctrine of prior restraint applicable?
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Content based

A

specificially restrict speech bc of its discriminatory content. 2 types

viewpoint based: most concerning, allowing some viewpoints, suppressing others

subject matter based: certain categories may be restricted:
defamation
incitement to violence
fighting words
obscenity
child porn
sexually orientated speech
commercial speech
communicative conduct

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

content neutral

A

apply to signs/symbols/ control way can be displayed

permitted so long as justified without reference, to the content of the regulated speech, serve a significant gov interest, and leave open ample alt channel of communication of information

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

facial challenge

A

Can be invalid on face if overbroad or vague

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

as applied

A

discriminatory in how its enforced

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

anti-slapp motions

A

Slapp – legal action designed to intimidate, silence, or censor individuals who engage in public participation or free speech. its a filing of a meriltess lawsuit against D for purpose of burdening them with legal costs and deterring them from expressing their opinions

Antislapp - defense against slapp. can file this early to seek dismissle of the slapp motion

slapp back motion - counteraction taken by D against P to recover damages and fees incurred by meritless claim P filed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

anti slapp motion analysis steps

A
  1. D’s communication covered by anti-slapp statute?
  2. if standard for protected speech met, motion to strike complaint – can be the anti slapp motion
  3. P then must produce PF evidence to rebut AF
  4. D can file slapp back motion
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

False light definition

A

one who gives publicity to a matter concerning another that places the other before the public in a false light, is subject to the other for invasion of his privacy, if: highly offensive to reasonable person and reckless disregard to failsity

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

false light elements

A
  1. publicity – widespread
  2. placing another in a false light
  3. highly offensive to reasonable person
  4. actual malice
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

publicity given to private life

A

one who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy if the manner publicized is of a kind that would be highly offensive to RP and is not legit concern to public

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Publicity given to private life elements

A
  1. publicity – same as false light / widespread
  2. concerning the private life of another
  3. highly offensive to RP
  4. not of legit concern to the public - not newsworthy

if obtain something legally can broadcast under newsworthy privilege even if involves private matters

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Intrusion upon seclusion

A

one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to RP

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

intrusion upon seclusion elements

A
  1. intentional
    knowledge/substantial certainty acts would result
    in intrusion
  2. intrusion
    physical or snooping through
    email etc. can be persistent,
    unwanted phone calls
  3. solitude/seclusion/private affairs
    desire to be left alone, set themselves aside,
    books, records, relationships
  4. highly offensive to RP
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

stalking and following CA statute elements

A
  1. D engaged in a pattern of conduct the intent of
    which was to follow, harm, harass the P
  2. D either violated a restraining order or made a
    credible threat w intent o place P in reasonable fear
    for his safety or safety of his immediate family
    member
  3. P demanded that the D cease and abate his/her pattern or conduct, but the D persisted
  4. P reasonable feared for his/her safety, or the safety of an immediate family member
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Appropriation of name or likeness

A

One who appropriates for his own use or benefit, the name of likeness of another, is subject to liability to the other for invasion of his privacy

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Appropriation of name or likeness

A
  1. Appropriates
    unwanted/unpermitted use, usually ordinary
    person
  2. Own use of benefit – economic way
  3. Name or likeness, including voice of another
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Breach of Confidence

A

D owed P duty of confidentiality, D learned of info of a confidential nature, which was communicated to D in confidence, and D disclosed the info to the detriment of the claimant

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Breach of confidence elements

A
  1. D owed P the duty of confidentiality
  2. D learned of info of a confidential nature
  3. Which was communicated to D in confidence
  4. D disclosed the info to the detriment of the claimant
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Economic loss rule

A

The doctrine that tells us you typically cannot recover for pure economic losses, but there are certain torts that are ways to recover for economic losses via tort

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Inducing breach of K – interference w/ contractual relations elements

A
  1. A valid K existed between P and 3P
  2. The D knew of the existence of this K
  3. Without justification, D intentionally engaged in acts or conduct that induced the 3P to breach K w P
  4. D intended to induce a breach of K
  5. K was in fact breach
  6. Caused damage to P
30
Q

Intentional interference with prospective economic advantage

A
  1. An economic relationship between P and another, containing a probable future economic benefit or advantage to P
  2. D’s knowledge of the existence of the relationship
  3. D intentionally engaged in wrongful acts or conduct designed to interfere with or disrupt the relationship
  4. Actual disruption
  5. Damage to P as a result
31
Q

UCL

A

Prohibits unlawful, unfair, or fraudulent business act or practice, where the private plaintiff has lost money or property as a result of such unfair competition

32
Q

UCL PF case for private P

A
  1. Unlawful OR
  2. Unfair – 2 types of P
    Competitor - tethering test, clear connection btwn
    alleged unfair conduct and a recognized legal
    policy aimed at protecting competition
    Consumer - no def by SCOTUS, 3 dif test
    Tethering
    Balancing
    FTC injury>benefit to consumers?
  3. Fraudulent
    actual deception
    actual reliance
    injury
  4. Business/act practice
  5. Economic injury in fact AND
  6. Lost money as a result
33
Q

UCL PF case for class action

A
  1. Unlawful OR
  2. Unfair – 2 types of P
    Competitor - tethering test, clear connection btwn
    alleged unfair conduct and a recognized legal
    policy aimed at protecting competition
    Consumer - no def by SCOTUS, 3 dif test
    Tethering
    Balancing
    FTC injury>benefit to consumers?
  3. Fraudulent
    Liability exists if members of public are likely to
    be deceived by D’s conduct
  4. Business/act practice
  5. Economic injury in fact AND
  6. Lost money as a result
34
Q

UCL limited remedies

A

Injunctive –> target ongoing wrongful conduct
may be ordered without restitution

monetary relief –> restitution –> order compelling D to return money obtained through unfair business practice to the P. 3 types
money taken - D return money they got through
unfair practice to persons whose property was
taken
vested interest - broad; allow P to recover money in
which has vested interest
disgorgement of profits - any profits D gained
though interest/earnings on P’s money that D
wrongfully withheld

35
Q

Standing

A

Any person who has suffered injury in fact and has lost money or property as a result

36
Q

Civil penalties

A

obtained by prosecutor only, limited to 2.5k per violation

1 violation per victim, as many people who read the advertisement

37
Q

Misappropriation of trade secrets

A
  1. P owned trade secret, D committed misappropriation of it
  2. D acquired the secret
    Through improper means
    Through P’s disclosure of trade secret to D in
    confidential relationship or
    Under other circs in which D owed duty not to
    use/disclose
  3. D used or disclosed secret w/ P’s permission
  4. P suffered harm by actual and proximate cause OR
    D gained from use / disclosure
38
Q

Injurious falsehood

A
  1. D made false stmt of fact
  2. Of and concerning P’s bus/product
  3. Publication – like defamation
  4. P injured – rep injured, defamation of product
  5. Special damages – always show unlike in Defamation w just slander
  6. with actual malice

puffing okay, competitive language okay, just can not publish materially false stmts about competitor’s products or services or raise questions about competitors financial viability unless true

39
Q

Intentional false misrepresentation

A
  1. False misrep
  2. made with scienter
    knowing/reckless
  3. with intent to induce P to act or refrain from acting
  4. which caused P to act
    proximate and but for
  5. in justifiable reliance
  6. resulting in pecuniary damages
40
Q

Types of false misreps under 1st element of false rep

A

misrep of fact –> not just puffing, opinions not actionable

Nondisclosure –> duty when fiduciary, active concealment of material fact, new info contradicting prior stmt when know person relying on prior statement, court created duty to disclose (latent condition. pruchaser acts upon reasonable assumption conduct does or does not excist, special knwolrdge not available to purchaser, material to transaction)

special knowledge

stmts about future events

when people make stmts about the law – lawyers

41
Q

Negligent Misrep

A
  1. False misrep – not bas on omission
  2. negligence
  3. intent to produce P to act or refrain from acting
  4. which caused P to act or refrain
    proximate and bus for
  5. in justifiable reliance
  6. resulting in pecuniary damages

frequently against lawyers

42
Q

malicious prosecution

A
  1. D initiates or procures criminal prosecution
    has to be against the person who started it,
    cannot just be against a witness or false
    testimony
    just filing a complaint is not sufficient unless the
    results
    in legit criminal process
  2. without probable cause
    reasonable grounds
    if lawyer says there’s enough, entitled to rely on
    counsel
  3. primary purpose for other than bringing an offender to justice – malice
  4. Proceedings terminated in accused favor
    initial case could have been dismissed on the
    merits or accused won
    if the initial P plea bargain even though thought
    innocent, no standing for a subsequent tort action

defense – the new D may show the new P actually guilty of the criminal charge

43
Q

Wrongful civil suit elements

A

Same as malicious prosecution but for civil case

44
Q

Abuse of process

A

applicable to criminal an civil actions

used for slapp back motion

can apply even if the underlying action had merit

any person who misuses a legal process may be subject to the tort

  1. misuse of legal process
  2. improper motive
45
Q

Two types of insurance and what they do

A

1st party insurance - provides compensation dirty to the insured individual or business

3rd party insurance - provides compensation to another party when the insured person or business is liable for damages

46
Q

courts only permit person to take out an insurance policy on ___

A

insurable interest

47
Q

Can a person take out a life insurance policy on someone else’s life?

A

no

48
Q

exception to insurable interest rule

A

key person exception: corp can insure the life of a person who plays an important role in company – e.g, the ceo

49
Q

occurance

A

single event resulting in a single insurance claim – fires, break ins, burst pipes, liability claims like dog bite

50
Q

intentional torts + insurance

A

liability policies generally exclude coverage for policyholder’s intentional torts

51
Q

Employers + liability + insurance implications

A

respondeat superior – vicarious liability if employee acts within scope of employment, employer liable, so insurance may cover for punitive damages predicated purely on a respondeat superior theory

if there is negligence in hiring, training, supervision – direct liability, emplyoer directly liable, so no insurance coverage

52
Q

exclusion of intent in policies definition

A

Policies exclude things, and may explain exludes intentional bodily injury etc. the intent definition we use is:

The insured must have intended the act AND intended to cause bodily injury

53
Q

Multiple coverages

A

Keene case – manufacture had dif policy coverages at dif times throughout course of years. insurers are liable for indemnification and defense costs during their respective periods of coverage

54
Q

primary vs excess insurers

A

primary: pay for first portion of victim’s damages up to their limit

second insurer covers risks between first insurer;s limit and higher designated sum

if primary insurer no longer in business, excess insurance does not have to cover that party, only the excess of the limit

55
Q

Dual/overlapping coverage

A

coverage allowed under both insurance policies

56
Q

Policy holder duties

A

timely make a claim

cooporate in any investigation by insurer

coorporate w insurer in lawsuit brought against insured by 3p

Violations of these duties do not negate the insurer’s duties, and matter only so far as they prejudice the insurer. Gruenberg v. Aetna Insurance Co.

57
Q

3p insurance duties

A
  1. duty to defend (arises as soon as insured makes a claim. if breaches, liable not just for cost incurred by insured to defend, but the amount of resulting judgment.
  2. duty to indemnify insured within policy limits (breach mat lead to judgement for policy limits and also for other damages like emotional distress)
  3. duty of good faith and fair dealing (act as if insured interests are your own, violated when insurer fails to defend or indmenify or settle claim within polciy limits without reasonable basis. duty to settle ifclear and unequivocal opportunty to settle within
    policy limitsliability is reasonably clearjudgement is likely to exceed amount of settlement
    demand

policyholders can collect more than contractual
benefits for unreasonable denial/delay

58
Q

1stP insurance duty

A

duty of good faith - bad faith if
1. refusal to pay without reasonable basis
2. fail to investigate a claim properly and timely

in CA for insured to have case to establish bad faith, P must show: benefits were withheld, and the reason was unreasonable or without proper cause

objective standard

59
Q

types of bath faith conduct

A

Deceptive practices, deliberate misrepresentations.

Unreasonable litigation conduct, delay, or failure to investigate.

Improper standards to deny a claim.

Abusive and coercive settlement tactics.

Failing to disclose policy limits or explain provisions.

60
Q

torts against government - abrogation of sov immunity

A

traditionally each level of gov had sov immunity by default, protected gov from being sued w/o their consent

now has been partially lifted in various jursidictions, can be achieved through statutes

to sue lcal gov for a tort must adhere to statutory requirements

61
Q

US constitution exception

A

sov immunity cannot prevent lawsuits based on the US constitution

individuals can sue gov entitled for constitutional violations

62
Q

pre lawsuit claim requirements

A

In California, for personal injury claims, this pre-lawsuit claim must be filed within 6 months.

This process allows the government an opportunity to address and resolve the claim before formal legal action is taken

63
Q

suits against local gov discretionary acts vs ministerial

A

discretionary acts : judgement by government official (taxing, issuing bonds, enforcing ordinances)
municipalities are generally immune from tort suits
for this, as long as not fraudulent or arbitrary

ministerial acts: straightforward applications of pre existing standards (approvimg demolition permits, granting zoning variance)
not immune from negligence in performing
ministerial acts

Cope v. Scott:

Facts:
Cope sued the National Park Service (NPS) for negligence in road maintenance after a car accident.
Alleged failure to maintain the road and provide adequate warning signs.

Holding:
The discretionary-function exception of the FTCA exempts the government from suit if actions involve political, social, or economic policy choices.

A two-step process is used to determine exemption:

(1) Whether the conduct was discretionary, and
(2) Whether the decision involved political, social, or economic policy judgment.

Road maintenance and warning signs involved discretionary choices, and balancing factors like road purpose, safety, and budget allocation.
Government employees have no liability for discretionary functions.

64
Q

local gov - duties to the public

A
  1. municipality does not have a general duty to protect the public. tort liability can be imposed on a gov after sov immunity waived, but must be through legislation
  2. A municipality is generally not liable for a negligent failure to provide police protection unless a special relationship exists
    special relationship exception:
      Assumption of Affirmative Duty: Such as 
   promises or undertaking to act.
 
   Government Agents' Knowledge: They are 
   aware that inaction might lead to harm.

  Contact: There must be contact between 
  government agents and the injured party.

   Justifiable Reliance: The injured party must 
   reasonably rely on the government's 
    assurances.
  3. A public school is not legally obligated to provide a level of care that would lead to liability for negligence when it comes to failing to educate students
65
Q

Road design cases duty

A

Municipalities typically have a duty to maintain streets in a “reasonably safe condition.”

This duty is, however, limited by qualified immunity.

Government actions are immune from liability if they are reasonable, involve choosing between conflicting opinions, studying a problem adequately, or relying on expert opinions.

66
Q

exceptions to road design qualified immunity

A

Inadequate Traffic Study:
If a government traffic study is clearly inadequate, immunity may be abrogated.

Basis-less Decision Not to Repair:
If the government has no reasonable basis for its decision not to repair a road, immunity may be abrogated.

Awareness of Dangerous Condition:
If the state is aware of a dangerous condition but takes no steps to study or remedy it, immunity may be abrogated.

Unreasonable Delay:
Immunity may be abrogated in cases of unreasonable delay in enacting repairs or remedying a dangerous condition, especially if there is a legitimate need for prompt action.

67
Q

Friedman v state of ny

A

Three separate accidents involving different drivers led to individual suits against the state.

In Friedman’s case, the state Department of Transportation had previously studied a road and decided to construct a median barrier. However, it failed to do so before Friedman’s accident.

While municipalities generally have a duty to maintain safe streets, the state benefits from qualified immunity in highway planning decisions. Liability may arise if the state’s study of a dangerous condition is inadequate or lacks a reasonable basis. Once a traffic plan is implemented, the state has an ongoing duty to review it.

68
Q

federal government use of force standard

A

there is a manual providing guidance on use of force in federal agencies

reasonableness is the standard - fact-specific

Judged from the perspective of a reasonable officer
Examined through the eyes of an officer on the scene at the time the force was applied, not the 20/20 vision of hindsight

Based on the facts and circumstances confronting the officer without regard to the officer’s underlying intent to motivation

Based on the knowledge that the officer acted property under the established law at the time

69
Q

Facts to be considered in reasonableness analysis

A

The severity of crime

The nature and extent of the threat posed by the subject

The degree to which the subject resists arrest or detention

Any attempts by the subject to evade arrest by flight

70
Q

Federal torts claim act

A

Waiver of sovereign immunity for certain tort suits against the federal government.

Allows a cause of action for injury or property loss caused by a negligent or wrongful act of a federal government employee.

Federal government is held liable similarly to a private individual.

Torts II (2 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions