Torts II Final Flashcards
Public Nuisance
(1) unreasonable, substantial interference
2. with a right common to the general public
3. interference with public health, safety
DOES NOT HAVE TO INVOLVE INTERFERENCE WITH USE AND ENJOYMENT OF LAND
- If private claim, harm must be of a different kind, not just degree
Private Nuisance
(1) substantial (real and appreciable)
(2) unreasonable (standard of normal persons or property in the particular locality) (hand formula)
(3) Interference with another private individual’s
(4) use and enjoyment of land, which he actually posses or
(5) has the right of immediate possession
What tort theories are for Nuisance?
(1) Intentional
(a) knew with substantial certainty
(2) Negligence
(3) Abnormally dangerous activity
Remedies for Nuisance
(A) Damages (good for private and public)
(B) Injunction (stopping the offending activity may be appropriate, courts will weigh the cost of the injunction) ONLY GRANTED BY JUDGE NEVER JURY
(C) Damages and Injunction
(D) Damages can be assessed incrementally or in a lump sum
(E) Plaintiff has a duty to mitigate
(F) Damages and Injunctions are typically not allowed for merely increasing the risk of harm
(G) Prox Cause and But for Cause – all nuisance actions carry a harm requirement
Defamation - Libel
- Written or printed matter
“communication embodied in physical form” - P does not have to show special harm
- Statement involving a matter of public concern or public figure and recovery is allowed w/out proof of “actual malice” —- presumed damages not awarded
- Private concern: presumed damages awarded w/out showing of actual malice
- Actual malice shown: presumed damages awarded
Defamation - Slander
- Oral statements
- Generally must establish “special harm”
- Generally must be pecuniary in nature
Defamation - Slander per se
“On its face”
4 types of slander that require no showing of special harm: Crook/Clap/Suck/Slut
1. Crime
2. Loathsome disease
3. Business, profession, trade, or office: adversely reflects on P’s fitness to conduct…
4. Sexual misconduct
Invasion of Privacy
- Appropriation
- Intrusion
- Publicity to P’s private life
- False Light
Appropriation
- An intentional use of
- P’s image or likeness
- For a financial benefit
Intrusion
1) Intentionally
2) Intrudes
3) Upon the solitude of another
4) highly offensive to a reasonable person, and
5) facts/issues were previously private
Publicity to P’s private life
- Public disclosure of private information about P.
- Must be “highly offensive to a reasonable person.”
- which is not of legitimate concern to the public; and
- which has resulted in damages.
False Light
- acting with actual malice (only public fig/off)
- the defendant gave publicity to false info;
- which placed the P in a false light
- that would be highly offensive to a reasonable person; and
- which resulted in damages.
Actual Malice
knew the portrayal was false or acted in reckless disregard of whether it was false.
Duty to Trespassers
no duty to warn (unless a known trespasser)
Duty to Licensee
- have owners consent to be on property, no business interest
- social guests
duty to warn of known dangers, no duty to inspect
Duty to Invitee
- invited onto land for business
- those who are invited as members of the public for open to the public use
duty of reasonable inspection to find hidden dangers and must use reasonable care to take affirmative action to remedy a dangerous condition
Modern Landowner Liability
duty of reasonable care to all
Defamation - Public Figure
Can recover only if he shows that D made the statement with “actual malice” which means:
- knowledge that it was false; or
- reckless disregard of whether it was true or false
a. Reckless disregard means that P must show that D in fact entertained serious doubts about the truth of the statement - Clear and convincing evidence
Defamation - Private Figure
- Not required to prove actual malice
Attractive Nuisance
(A) possessor knows or should know that children are likely to trespass
(B) the condition is one that the possessor knows or should know will invoke an unreasonable risk of death or serious bodily harm to the children
(C) the children because of their youth do not discover the condition or realize the risk of danger
(D) the utility if any to eliminating the danger was slight as compared to the probability on injury resulting therefrom (risk of children);
(E) possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children
Strict Liability
(A) act or omission to act (B) an absolute duty to make safe (due to the nature of the activity) (C) Breach (D) cause in fact (E) prox (F) Damages
Defamation - Remedies
- Compensatory damages:
a. Pecuniary (i.e. lost earnings)
b. Humiliation (i.e. lost friendship, illness) - Punative damages
a. Public figure or public interest - must have actual malice
b. Private figure/private matter - only negligence needed - Nominal damages
- Retraction
Joint Enterprise
MAC
Mutuality of Control
Agreement
Common pecuniary purpose
Contributory Negligence
P’s negligence bars recovery
Comparative Negligence
majority: modified
Apportions fault by % of responsibility.
- pure: straight up %ages
- modified: P only recovers if 49% or less responsible
- 50/50: May only recover if 50% or less
Assumption of Risk
- Voluntarily consented to take her chances that harm will occur
- Primary: no duty, inherent risk, (playing sports)
- Secondary: duty, specifically and knowingly undertook risk
Implied Assumption of Risk
P may be held to have assumed certain risks by her conduct
1) actual knowledge of the risk in question
2) voluntarily consented to bear risk
Statute of Limitations
starts when discovered
Statute of Repose
starts when occurred. Absolute bar. (pharm and manufacturers)
What is the modern rule for direct NIED?
“Risk of Impact” -The modern rule for NIED requires the plaintiff exhibit a physical manifestation of severe emotional distress and be within the zone of danger in order to recover under NIED
MAJORITY
What are the elements of the “zone of danger rule”?
MAJORITY RULE
- Plaintiff must contemporaneously perceive
- A severe injury
- Of an immediate family member
- And be within close enough proximity
- So as to fear for his or her own life
What are the elements of the Dillon v. Legg rule?
MINORITY RULE
- Distress must be reasonably foreseeable
- Plaintiff must be near the scene of the accident
- P must have sensory and contemporaneous observation of the accident
- And be in a special relationship with the victim
What is the traditional “impact” rule?
The traditional rule for direct NIED is the “impact” rule, requiring a plaintiff to have experienced physical impact in order to recover for NIED.
MINORITY
Defamation - Absolute Privilege
Absolute privileges protect certain groups of people from any liability for defamation:
- Judicial proceedings: Judges, lawyers, witnesses (within scope of proceeding)
- Legislative proceedings: legislators (within scope of work)
- Government officials (within course of jobs)
- Husband and wife
- Consent of plaintiff
Defamation - Qualified Privilege
Also called conditional privileges, will be lost if D is acting primarily from malice
- D in order to protect his own interests
- D in order to protect the interests of another
- D in order to protect public interest
- Reporting on public proceedings
- Neutral reportage
Defamation - Remedies
- Compensatory damages:
a. Pecuniary (i.e. lost earnings)
b. Humiliation (i.e. lost friendship,
Imputed Negligence
Vicarious Liability
Direct victim’s conduct is imputed to a plaintiff with a derivative claim
What is not imputed
(1) parent and child
(2) spouse and spouse
(3) driver and passenger
Joint liability (joint and several)
May recover 100% of damages from either D, Ds may seek contribution from the other
Several liability
Ds only liable up to their own fault
Contribution
when one D paid more than his pro rata share and seeks reimbursement from the other D
Indemnification
when 100% of liability shifts from one D to another
Defamation - Libel per quod
Based on circumstances
Must prove specific damages
Defamation - Elements
- A false and defamatory statement
- Published to a third party
- Of or concerning plaintfiff
defamatory– tends to harm reputation
publication– a communication to a third party, must be intentional or negligent
Defamation - definition of public official
Who have or appear to the public to have substantial responsibility for or control over the conduct of governmental
Product Liability Elements
(1) the product was manufactured by the defendant;
(2) the defendant is a seller in the business to sell the product;
(3) and that the product is defective;
(4) a product can be defective by 1 of 3 ways:
(a) manufacturing defect; (b) design defect; or (c) inadequate warning
(5) that the defect existed at the time the product left the manufacturer’s control
(6) if SL, no substantial change was made to the product
(7) the defect was the direct and proximate cause of
(8) plaintiff’s injuries
Product Liability - Strict Liability
“Defendant Can’t Conceal Bad Commercial Products”
D: Product must have been in DEFECTIVE condition unreasonably dangerous to user or his property
C: When it left D’s CONTROL
C: Product must not undergo significant CHANGES
B: Seller must be in BUSINESS of selling product
C: Defect must CAUSE the damage (physical or property)
P: PRIVITY not required, duty extends to anyone foreseeably injured
Products Liability - Design Defects
- All products made the same
- Dangerous condition of each product makes them all defective/ unreasonably dangerous
- Requires expert witness to determine
- Plaintiff must show reasonable alternative design
Products Liability - Manufacturing Defects
- Product is produced differently than other identical products
- Making it more dangerous
- Consumer expectation test? 402A?
Products Liability - Warning Defects
- Product is produced correctly but fails to contain
- Effective and
- Clear warnings of dangers that
- May not be apparent to ordinary reasonable adult users
- Need not warn of open or obvious danger
Products Liability - Consumer Expectation Test
MINORITY rule
- Product must be dangerous beyond that which would be contemplated
- By the ordinary adult consumer
- With the ordinary knowledge common to the community
- Used in its intended purpose or reasonably foreseebable manner
Products Liability - Risk Utility Test
MAJORITY rule
~factors~
- To determine if the risk of the product outweighs the utility of the product
U: USEFULNESS and desirability of product
L: LIKELIHOOD and probability of serious injury
S: Availability of SAFER design
E: Manufacturer’s ability to ELIMINATE danger without impairing usefulness, or too expensive
C: User’s ability to exercise CARE in use of product
O: OBVIOUSNESS of product’s danger, or adequate warnings on product
I: Feasibility of spreading loss by setting price of product or carrying liability INSURANCE
GENERALLY FOR DESIGN DEFECTS (per Bev’s slides)
BOP
The plaintiff must prove, by a preponderance of the evidence (more likely than not) ……..
Each party additionally has the burden of production, meaning that they must produce evidence to support their claim.
Each party also has the burden of persuasion, meaning that they each must convince the factfinder to rule in his or her favor.
