Torts II Miderm Flashcards
1
Q
What are the three theories of tort liability in order of blameworthiness?
A
Intentional torts, negligence, and strict liability
2
Q
What are the four elements to negligence?
A
Duty, Breach, Causation (Factual and Proximate), and Damages
3
Q
Define Duty in negligence.
A
A legally recognized relationship between the parties that requires the D to act in a certain way.
4
Q
Define Breach in negligence.
A
The D’s failure to meet the standard of care.
5
Q
Define Causation in negligence.
A
The required nexus between the Defendant’s conduct and the Plaintiff’s harm (both factual and proximate) where factual is but for the D’s conduct, the P’s injury would not have occurred, and Proximate Cause, where the P’s injury was foreseeable, and there was no superseding/intervening cause.
6
Q
Define Damages in negligence.
A
Monetary loss associated with the injury
7
Q
What are the two defenses in Negligence?
A
Comparative Negligence and Assumption of the Risk
8
Q
What are two categories of Negligence?
A
Misfeasance including
Negligent Omission, and Nonfeasance
9
Q
Is there a duty owed in misfeasance and negligent omission?
A
Yes to foreseeable Plaintiffs
10
Q
Define misfeasance
A
Risk creating conduct
11
Q
Define negligent omission
A
Risk creating inaction
12
Q
Define nonfeasance.
A
Inaction
13
Q
What is the general rule for nonfeasance?
A
There is no duty to act (protect, control, rescue).
14
Q
What are the three categories of exceptions to the No Duty for inaction rule?
A
Special Relationships, Undertakings, and Promise with Reliance
15
Q
What are the three categories within Special Relationships?
A
a. Entrustment
i. Ship captain and seaman in distress
ii. Hospitals and patients
iii. Common carrier and passenger
b. Legal Custodian and Charge
i. Jailor and prisoner
ii. School and young student (e.g., being bullied) (not university)
c. Unique Position of Control & Quid Pro Quo
i. Landlord and Tenant
ii. Innkeeper and Guest
16
Q
What is the Tarasoff Rule under special relationships?
A
Therapists may owe duty to warn potential victims of threats posed by patients.
17
Q
Do police have a duty to an individual?
A
Police generally DO NOT have a duty to protect individual citizens from threatened crimes. Police owe a duty to the public as a whole.
18
Q
Define Undertakings where within Special Relationships the D owes P a duty.
A
One person undertakes an effort to aid another. This creates a duty.
19
Q
What are the traditional and modern rules for undertakings?
A
The traditional rule is that one cannot abandon someone and leave injured person in a worse position.
Modern rule is that one must exercise reasonable care in providing protection. Good Samaritan statutes can negate liability for negligent care.
20
Q
Define Promise and Reliance as an Exception to the No Duty rule. Two elements.
A
(1) D promises to take efforts to help P and; (2) P relies on this promise detrimentally.
NOTE: P must rely which requires knowledge. For instance, if parents had known the promise was fake, they would have done differently with their children.
21
Q
What are the three categories in which Strict Liability exists?
A
Animals, Activities, Products
22
Q
What is another term for Strict Liability?
A
Liability without fault.
23
Q
What are the three policy justifications for the liability theory of Strict Liability?
A
- Compensate those injured.
- Spread cost of risky activity to corporation vs. individual consumer.
- Discourage risky activity
24
Q
What are the three types of animals?
A
Roaming/Trespassing
Domesticated
Wild
25
What is the general rule for roaming/trespassing animals?
Owners for roaming animals are strictly liable for harms caused by their livestock (e.g., cows). However there are two exceptions to the rule.
26
What are the two exceptions to the general rule that owners of roaming animals are strictly liable for the harms caused by their animals?
1) Highway exception - if on highway and stray into another land, not liable.
2) Dog and cat exception
27
What is the general rule on wild animals?
Owners of wild animals are strictly liable for harm resulting from the dangerous nature of their species. However, there is one exception.
NOTE: Applies even when knowledge of dangerous animal propensity and reasonable care is exercised. You own a lion, you own a wolf, you own a snake - wild animal - strictly liable, unless the harm does not result from the species for instance tripping on snake and injured, or allergic to wolf, not strictly liable.
28
What is the exception to the general rule that keepers of wild animals are strictly liable for harm resulting from the dangerous nature of the species?
Persons who display animals to the public not strictly liable for the harm.
29
What are the two types of tests for determining whether an animal is wild or domestic and which test is the majority rule?
The majority rule is the service to humankind test. If yes, domestic (honeybees). If not useful to humankind, wild (lion, snake, shark, black widow spiders).
The minority rule is the inherent nature test. Is the entire species untamable? If yes, wild. If one animal tamable, domestic. Note in Burma, elephant not wild.
NOTE: Common Law looks at inherent nature of individual animal for domestic animals and looks at inherent nature of species for wild animals.
30
What is the general rule on domestic animals?
Keepers of domestic animals are not strictly liable UNLESS they knew or had reason to know of their domestic animal's dangerous propensity are strictly liable.
NOTE: No need to show animal has bitten before (no free one bite). Just need to show knew growled all the time, charged people. Dog does not have to be mean - can just be huge/heavy.
NOTE on exam need to analyze both ways where animal is wild or domestic and run analysis all the way through
31
On abnormally dangerous activities, what are the three tests and when is each test applied? In the Common Law, which is the majority rule?
The Blackburn Test
The Cairnes Test
The 2nd Restatement
The Blackburn and Cairnes Test are applied when there is property damage.
The Cairnes test is the majority ryle.
The 2nd Restatement is applied when there is injury involved.
32
What is the Blackburn Test on abnormally dangerous activities?
If an activity is likely to cause mischief and it does, the activity is abnormally dangerous, strictly liable.
Exceptions - P’s default (contributory), act of God, or not a foreseeable consequence
33
What is the Cairnes Test on abnormally dangerous activities?
Abnormally dangerous activities are a non natural use of land. Non natural is not customary for that location and relies on human alterations.
34
What is the 6th factor balancing 2nd Restatement Test on abnormally dangerous activities?
NOTE: There is also a 3rd restatement but it is not widely adopted.
The 2nd Restatement six factors are:
1) High risk of harm (probability)
2) Degree of harm
3) Inability to eliminate risk with reasonable care
4) Uncommon usage (not carried on by great mass of mankind OR by many people in the community
5) Inappropriate location
6) Value to community outweighed by danger of the activity
35
What are nine examples of abnormally dangerous activities?
a. Blasting with explosives
b. Toxic chemical storage and transportation
c. Hazardous waste disposal
d. Pile driving
e. Field burning
f. Crop dusting
g. Fumigation (poisonous gas)
h. Rockets and fireworks
i. Storage of large quantities of water
36
What is the causation analysis for Abnormally Dangerous Activities?
Factual - did the harm result from the inherently dangerous nature of the activity (or the wild animal)? For instance tripping over snake, no. Tripping while running from fear of snake, yes.
Proximate - was there any superseding/intervening force that cuts off causation?
37
What are the two types of defenses to SL?
Comparative Negligence and Assumption of Risk
38
What are the two different types of Comparative Negligence that vary by Jx?
Pure and Modified.
39
What is Comparative Neg. in a pure Jx?
P recovery reduced purely by the amount of P negligence.
40
What is Comparative Neg. in modified Jx?
P recovered reduced until P's percentage of fault falls below a cap and P now cannot recover
41
What is the affirmative defense of Assumption of Risk?
The P knew about the risk and voluntarily took it on. NOTE: This is a subjective test.
Example: P accepts employment to train wild animals. P sneaks into construction site closed off with warning signs. Claim barred. P knowingly stays inside during pesticide sprayed. Claim barred.
42
What are the four steps in analyzing a strict liability animals or activity issue?
1. Identify animal or activity and general rule.
2. Identify if harm within inherent risk posed by the animal/activity.
3. Run causation analysis incl. damages.
4. Run any affirmative defenses.
43
What is the definition of Vicarious Liability?
Negligence of one person is imputed to another person based on the relationship between them
44
What are the similarities between Strict Liability and Vicarious Liability?
Both are forms of liability without fault.
45
What are the differences between Strict Liability and Vicarious Liability?
Vicarious Liability requires a special relationship whereas Strict Liability does not.
46
What are the four relationship types for Vicarious Liability?
1. Employer and employee
2. Employer and Independent Contractor
3. Partners in a Joint Venture
4. Bailor and Bailee
47
What is the general rule for vicarious liability between employer and employee?
If the employee was acting within the scope of their employment, the employer is vicariously liable.
NOTE: Reasonable care is not relevant, so if employer trained employees well and employee hurts someone, employer still V/L.
48
What are the three ways in which an employee is acting within the scope of employment?
1. While performing work for the employer
2. While engaged in personal acts incidental to employment
3. While participating in dual acts
49
Within performing work for the employer, what is the going and coming rule?
An employee is OUTSIDE the scope of employment while commuting to and from work UNLESS the harm arises from the foreseeable dangers “arising from or related to” work
For example: hit someone on way home with no relation to work - employer not VL.
For example: drive drunk coming back from work party. Employer VL.
50
To determine whether the employee was acting within the scope of their employment, how are detours and frolics treated?
An employee is not within the scope of employment while on a frolic (major deviation)
An employee is within scope of employment if on a mere detour (slight deviation)
NOTE: On mere detour v frolic – ask yourself if the act was for the benefit of the company and if it was foreseeable
51
Define Frolic
Personal acts far removed in time, distance, purpose or expectations of the employment
52
Define Mere Detour
Personal acts closely related in time, distance, purpose & expectations of employment
NOTE: Argue both sides (frolic and mere detour) on exam and resulting change in outcome.
53
What is the test called to determine whether an individual is an employee or contractor?
The right to control test.
54
What is the right to control test?
The greater the control over the work, the more likely the tortfeasor is an employee.
55
What are the eight factors to weigh in the right to control test?
a. Control over details of work
b. Similarity of occupation/business
c. Supervision
d. Extent of Skill Required to Perform Job (less skill, EE)
e. Tools & Place of Work
f. Duration of Employment
g. Payment Method
h. Understanding of Parties
56
What is the general rule for vicarious liability of an employer for harm by an Independent Contractor?
Employers are not liable for the torts of their independent contractors.
57
What are the two exceptions to the general rule that employers are not vicariously liable for the torts committed by independent contractors?
1. Nondelegable Duties
2. Inherently Dangerous Duties
58
What is the nondelegable duties exception to the general rule that employers are not vicariously liable for the torts of independent contractors?
Prevents a party that owes a duty to others from evading responsibility by claiming to have delegated that duty to another
Examples:
a. Motorists for car safety maintenance
b. Contractors for safe building construction
c. Landowners for safe property management
d. Hospitals for ER care
59
What is the inherently dangerous duties exception to the general rule that employers are not vicariously liable for the torts of their independent contractors?
An employer may be V/L for torts by an IC for activities that by their nature involve grave risks of harm/inherently dangerous
Examples - crop dusting, pesticides, poisonous chemicals, transporting giant logs, painting lines in middle of road, unloading propane gas, ice cream man hitting a child
60
What is the exception to the inherently dangerous duties exception to VL IC?
The employer is not vicariously liable for collateral negligence of engaged in inherently dang activity if the risk creating conduct is unrelated to the inherent danger of the activity
E.g. Contractor flies crop duster and wing falls off and hurts someone. No V/L.
E.g., Driver transporting logs runs red light. Running red light is associated with any car not from transporting logs. No V/L.
61
Can employers be vicariously liable for intentional torts of employees?
Yes, if if in furtherance of employer's business. Use purely personal test.
Examples
- Bouncer roughs up patron to secure premise. V/L.
- Bouncer shoots patron b/c patron sleeping w/bouncer wife, no V/L.
- E.g., Prof hurts student in class while demonstrating law. School V/L.
- E.g. Prof hurts student b/c hates student. No V/L b/c purely personal.
62
What is the joint enterprise partner test for vicarious liability?
Members of a joint enterprise may be VL for the torts committed by other members of the JV.
63
What are the 4 elements to determine whether joint enterprise exists and thus the members are vicariously liable?
1. Agreement between two members of the supposed joint enterprise;
2. Common goal;
3. Pecuniary purpose (financial interest in the venture); AND
4. Equal right to control over the enterprise.
64
What is the Common Law rule for vicarious liability and the relationship between bailor and bailee?
Bailors are not vicariously liable for the acts of their Bailees.
65
What are the 3 exceptions to the general rule that bailors are not VL for acts of bailees?
1. Car owner with passenger exception (if owner in car, owner V/L for driver's acts).
2. Family purpose exception (if driver is part of family and has consent to drive from owner, owner V/L.)
3. Automobile owner statute exception (if owner consents, then owner V/L)
Example: Mom gives key to kid to drive to soccer practice.
a. Common Law: No V/L for mom.
b. Family Purpose: V/L for mom. Note there implied consent if you know your kid driving and you don’t stop it.
66
What is the difference between vicarious liability and negligent entrustment?
In vicarious liability, the imputed party was not the tortfeasor whereas in negligent entrustment, the D was the tortfeasor
Examples
E.g., You give a kid the keys to car who crashes into someone.
1. First, you sue for V/L. General rule no liability but if you are with the kid and there is an owner exception or with the family purpose doctrine, an exception could apply (if 11-year-old lives in household) or if owner consent statute and she’s a neighbor and you gave her the keys, V/L
2. Second, you sue for negligent entrustment by entrusting car to a girl who is 11 and no drivers license. Careless, unreasonable.
iii. E.g., If hospital hires therapist just out of school and fails to train therapist and new therapist texts during work and client drops weight on chest
a. First, you sue for V/L.
b. Second, you sue for negligent entrustment for hiring someone who then went off and did texting
67
When does product liability arise?
Liability for suppliers of product that cause harm because they were either:
(1) defective; or
(2) did not perform as promised.
68
What are the four different theories of recovery in product liability law?
Negligence, strict liability, breach of warranty, and misrepresentation (will not cover in class)
69
What are the three types of defects in product liability law?
- Manufacturing defects
- Design defects
- Informational/warning defects
70
What is the key difference between manufacturing defects and design defects?
Manufacturing defects apply to one unit whereas design defects apply to the entire line of cars
71
For product liability, what are the four elements to prove for a negligence claim?
Duty, breach, causation, damages
72
How is duty defined in a product liability negligence case?
D must be a product seller (manufacturer, distributor, wholesaler) and P must be a consumer or user
73
How is breach defined in a product liability negligence case?
Defendant unreasonably manufactured the product below the standard of care
Defendant unreasonably designed the product below the standard of care
Defendant failed to adequately warn about the product's dangers
NOTE: Privity no longer required (in negligence cases period) to prove duty in a negligence case against supplier of defective product
74
How is causation defined in a negligence case for product liability?
Factual and proximate
But for and foreseeable plus no intervening/superseding forces
75
Define damages in a negligence product liability case.
P must have suffered a compensable loss due to D’s negligent product.
Punis only if acting with malice.
76
What is a breach of warranty?
An assurance, either express or implied, that a product will function in a promised way
77
What are the 2 types of breach of warranty?
Express and implied.
78
What two elements are required to recover under an express warranty?
(1) Seller affirmatively misrepresents the qualities of a product; AND
(2) P’s injury must have suffered injuries as a result of the product’s lack of those qualities.
NOTE: Privity/legal relationship with product manufacturer not required
NOTE: Look for express representations about the qualities of the product in the fact pattern (Ex: Unpoppable tires, medical cures, etc.)
NOTE: On reliance, use ordinary prudent person test—would reasonable objective person rely on it
79
What two elements are required to recover under an implied warranty?
(1) Seller’s product has a defect that makes it unfit for its ordinary intended purposes; AND
(2) P’s injuries result from using the product for that purpose.
Examples: Tires below industry average quality and pop, food product that contains chemicals, tool that breaks on first use, car rolls over when driving it, etc.
80
Define SL for product liability.
Holds sellers of products liable for injuries even where they exercised reasonable care.
81
What are the three types of defects for SL under product liability?
Manufacturing
Design
Informational/Warning
82
What are the four required elements a P must prove in a Strict Liability products liability case?
1. Proper Parties (like duty)
2. Defect (like breach)
3. Causation (includes damages)
4. No substantial change
83
Define proper parties in SL Product.
P is consumer, D is seller who engages in selling that type of product
* Seller must be a commercial seller, not someone who sells product as a one-off.
84
Define defect in product liability strict liability
Product has defect that makes it unreasonably dangerous
85
Define defect for manufacturing design and the two exceptions.
The product at issue
1. Differs from other products of like design
2. Is more dangerous than other products
3. Defect existed at time product left D’s control
Exception One: Post-sale alterations
Substantial alterations post sale allows for a defense to SL that will likely win if the changes caused the injury
However, “reasonable and proper handling” allows an inference that defect existed at time product left D’s control
Exception Two: Statute of repose
Similar to statute of limitations. Product presumed to be defect free if _______ years have passed between original sale and injury
86
Define defects in design. What are the three tests to determine whether there is a defect?
Occurs when the intended design of the entire product line is unreasonably dangerous
1) Risk Utility Test
2) Consumer Expectation Test
3) Hybrid Test
87
Define the Risk Utility Test for Design defects in strict liability products
o Risk: Risk posed by product’s design
o Utility: Utility of product as designed
* If risk > utility -> S/L applies
USAA v UUFC
Factors to analyze:
o Eight Factors to analyze for Exam:
1. Usefulness and desirability to user and public
2. Safety aspects of the product
3. Availability of a safer substitute
4. Ability to Make Safe without Impairing usefulness to making it too expensive
5. User’s ability to avoid danger
6. User’s anticipated awareness of dangers
7. Feasibility of mfg. spreading loss or getting insurance
8. Consumer expectations (some jurisdictions only)
88
Define the Consumer Expectation Test for Design defects in strict liability products
1. A design defect exists where the product is dangerous to an extent beyond that contemplated by ordinary consumers
2. Turns on “reasonable expectations of users & surprise element of XX”
3. Eg. Adult dives into 3 feet pool and tries to argue design defect, under CE test, claim fails, b/c the danger would be contemplated by an ordinary consumer. But if P was a child and dives in, under CE test, claim still fails, b/c CE test looks at the ordinary average adult consumer
89
Define the Hybrid Test for Design defects in strict liability products
1. A product is defectively designed if proven by EITHER Risk Utility Test or Consumer Expectation Test
2. NOTE: In some Jx, P may or must prove (juris. split) there is some reasonable alternative design (aka practical, cost-effective design precaution that would have prevented the harm)
90
What are the two areas to analyze under a Duty to Warn?
Whether the duty existed and if so whether the warning was adequate.
91
What is the Duty to Warn and its three elements?
Commercial sellers have a duty to warn of product hazards that:
1. Seller knew or should have known about;
2. Existed at the time of manufacturing and distribution;
3. That are not obvious.
92
What are the four exceptions to the Duty to Warn rule?
1. State of the Art defense
2. Obvious hazard doctrine
3. Sophisticated user doctrine
4. Learned intermediaries
93
What is the State of the Art defense where there is No Duty to Warn?
There is no duty to warn where the defendant could not have known of the defect because defect was outside the scope of scientific knowledge at the time of manufacturing.
94
What is the Obvious Hazard Doctrine where there is No Duty to Warn?
The seller has no duty to warn about open and obvious dangers posed by the product (e.g., Driving on meth will injure you; knife is sharp).
95
What is the Sophisticated User Doctrine where there is No Duty to Warn?
The seller has no duty to warn sophisticated users (experts in the use of a product like doctors and medical equipment).
96
What is the Learned Intermediary Doctrine where there is No Duty to Warn?
When the product is distributed to learned intermediaries, there is only a duty to warn the learned intermediary and not the end use. The intermediary then has the duty to warn the consumer.
97
What are the three exceptions to the Learned Intermediary Doctrine to where there is a duty to warn (the end user)?
1. Weak Dr./Patient relationship (administering shots at school)
2. Active patient roles (birth control, chemo pills, retinol where patient has duty to administer his or her own medicine)
3. Direct to consumer (where product marketed directly to the consume like over the counter medicines)
98
What is the Post-Sale Duty to Warn?
Sellers may owe a duty to warn about risks discovered AFTER the sale. The test is reasonableness.
99
What is the Adequacy Rule in Duty to Warn which follows the duty analysis?
A warning must be adequate. This requires that the warning is a) comprehensive, b) gives fair indication of specific risks, and c) must be designed to reasonably catch the consumer’s attention.
100
What are the four required elements of a warning [DARA]?
1. Danger
2. Avoidance
3. Remedy
4. Attention
101
Discuss the causation analysis for Duty to Warn.
- Factual cause: Do “but-for” test
- Proximate cause: Use foreseeable consequences test - was it within foreseeable consequences? If superseding then breaks chain.
NOTE: There must be no substantial change before reaching P.
102
What damages may be awarded in a duty to warn case?
Property damage
Physical injuries
103
What are the five defenses to product liability (manufacturing defects, design defects, warning defects)?
1. Implied assumption of the risk (note express waivers area not a defense) where the P undertakes conduct with full knowledge of harms and consents to it
2. Comparative negligence where P's recovery is reduced
3. Unforeseeable product misuse (like using phone as a hammer)
4. Preemption
5. Unavoidably unsafe products defense
104
What is Implied Preemption?
A federal law passed by congress is so comprehensive that there is no room for a state law claim against a product manufacturer
NOTE: Commonly arises in medical device and prescription drug SL claims
105
What is Express Preemption?
A federal law passed by congress expressly preventing a state law claim against a product manufacturer
106
What is the unavoidably unsafe products defense?
Product is inherently unsafe but so important to society that, in the interest of public policy, manufacturers and sellers are not held liable (e.g., blood thinners)
107
What are the four elements to an Unavoidably Unsafe products defense?
1. The product is unavoidably unsafe (incapable for being made completely safe)
2. Extraordinarily high utility
3. Utility outweighs the dangers
4. Appropriate directions or warnings regarding the dangers
108
What three areas of liability does nuisance encompass?
Intentional torts, negligence, and strict liability nuisances
109
What is the definition of a public nuisance?
An unreasonable interference with a right common to the general public.
110
How is unreasonable interference defined (three elements)?
1. Conduct that substantially interferes with a common right such as public health, safety, peace, comfort, morals or convenience; where substantial means something an ordinary person would take offense to; and/or
2. Conduct prohibited by statute or regulation; and/or
3. Is continuing and permanent and has a significant detrimental effect on a public right
111
What is a right common to the general public?
The interference must be harmful to public health, safety, peace, comfort, convenience, or morals.
112
What is the general concept around the special injury rule?
Private individuals can bring public nuisance claims if they have standing.
113
What are the elements to the special injury rule? (two elements)
1. P must suffer a harm of a different kind than members of the general public
2. While “exercising a right common to the public” that was the subject of the interference.
[e.g., health versus economic)
NOTE: Differences in degree do not count (e.g., log in road bad for public and you are delayed to work - same harm).
114
What is the definition of a Private Nuisance?
An unreasonable interference with a private person's use and enjoyment of their property.
NOTE: If you see use and enjoyment, you know it is a private nuisance question.
115
What are the elements to a Private Nuisance claim?
1. Proper plaintiff
2. Tortious conduct by the D
3. Caused harm to the P
116
Define a Proper Plaintiff.
P and D are neighbors or must live in close proximity of one another
NOTE: Future land owners are not proper private Ps
NOTE: You don't need to own property, just need property interest like rental. Working on property as a contractor does not count.
117
Define Tortious Conduct by the Defendant.
D must act negligently, intentionally or subject to strict liability in causing the nuisance
(E.g., did they fail to exercise reasonable care? Is there activity so abnormally dangerous that would lead to a SL claim (he said livestock exception or do blackburn)
( E.g., Intentional would be oil refinery knows its fumes hurting you)
118
What is the rule regarding Harm to the Plaintiff?
The harm must cause a substantial and unreasonable interference with P’s use and enjoyment of land.
119
Define substantial.
- Real and appreciable harm
- More than a slight inconvenience
NOTE: Ordinary person standard. Hypersensitive plaintiffs will not prevail.
120
Name the two tests for evaluating Unreasonable within Harm to the Plaintiff and which is the majority rule.
Balance of the equities test (majority rule)
Serious Harm Test (minority rule)
121
What are the five risk side factors in balancing the equities (where we look at the plaintiff's circumstance)?
1. Extent and duration
2. Nature/character of harm
3. Location suitability for P's use
4. Burden on P to avoid the harm
5. Social value of P's use of property
122
What are three utility side factors in balancing the equities where we look at the defendant's conduct?
1. Purpose of D's conduct
2. Location suitability for D's use
3. Social value of D's activities
123
What is the serious harm test?
An unreasonable interference may exist if
(1) The harm to the P is serious (though still less than the utility of D's activity),
(2) Payment of damages is feasible (won't put D into bankruptcy); AND
(3) Payment will not put D out of business.
NOTE: Defendant will continue its activities.
124
What is nuisance per se?
- Activity is a nuisance because it violates the law.
125
What are the two elements to a nuisance in fact (per accidens)
Activity that constitutes a nuisance by:
1. Reason of the location of the activity or
2. By the manner constructed, maintained or operated.
126
Define self-help in private nuisance and its three elements.
P may enter D’s land and abate the nuisance. This requires:
1. Imminent harm;
2. Prior notice; and
3. Reasonable force.
127
What are the two types of damages a plaintiff can seek in a nuisance claim?
1. Money damages
2. Injunction
128
What is the indemnification rule regarding injunctions?
An injunction may be issued where the public would be negatively impacted by D’s continued nuisance.
However, if D’s business is forced to shut down in the absence of wrongdoing, P may be required to indemnify (compensate) D.
129
What are the four elements of indemnification?
P brings others to an agricultural or industrial area;
Where foreseeable harm exists;
D is forced to shut down business because of P’s complaint;
D has no other adequate relief
130
What are the defenses to intentional nuisances?
Assumption of the risk
131
What are the defenses to negligent nuisance?
Assumption of the risk
Contributory negligence
Comparative fault
132
What are the defenses to strict liability nuisance?
Assumption of the risk
Contributory negligence
133
What is the Right to Farm defense?
Works as a defense in certain jurisdictions
Right-to-farm laws have been passed to remedy the risks posed to agricultural business by development and expansion of residential areas.
134
How is Coming to the Nuisance defined under Common and Modern Law?
- At Common Law, coming to the nuisance was a complete bar to recovery.
- In the modern law, coming to the nuisance is just a factor in the balancing of the equities test
NOTE: If P is a big developer w lots of community benefits but came to the nuisance, but D is a cattle company that emits odor, P may win because social utility outweighs fact that came to nuisance.
135
What is the umbrella statement/definition to use on defamation?
Defamation addresses harm to reputation from
false & derogatory communications
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What are the two types of defamation and what are the definitions of each?
Libel is written or printed words and statements embodied in physical form.
- There is a Jx split on whether a broadly disseminated TV ad-lib or sound bite constitutes libel or slander.
Slander is oral defamation which includes spoken words and transitory gestures.
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What are the seven elements to Defamation where the last one is only subject to public figures or public matters?
1. Defamatory statement
2. About the Plaintiff
3. Falsity
4. Fact v Opinion
5. Published
6. Plaintiff suffers damages
7. State of mind
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What is a Defamatory Statement?
A defamatory statement is a statement made that diminishes the respect, good will, confidence or esteem in which the plaintiff is held, or excites negative or adverse feelings about P.
The statement must be perceived by either:
- Common Law: 'some number' of people
- Restatement: A substantial minority of people who are "not anti-social."
- Minority Rule: some “right-thinking” people
The Plaintiff may provide Inducement and/or Innuendo.
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What is Inducement?
P may provide inducement, extrinsic BACKGROUND facts to prove a statement IS defamatory when the statement is not defamatory on its face
background (the butcher who sells bacon is kosher).
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What is Innuendo?
Explains meaning of why statement is defamatory (how it hurts the D)
E.g., (a kosher butcher selling bacon is incompetent/unethical b/c violates Judaism)
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What is the rule on About the Plaintiff?
P must be able to show that a reasonable person would know the statement is about the Plaintiff.
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What if the statement is about a group?
* Large group -> No one in the group can sue UNLESS particular circumstances point to a particular P
- Small group -> Everyone can sue if the statement refers to the entire group.
o If the statement refers to some members of the group, jurisdictional split.
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What is the non-natural persons rule for About the Plaintiff?
Non-natural persons (corporate entities) may only sue for defamatory statements regarding the entity’s business character
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What is Colloqium?
Where statement does not explicitly refer to P, P must plead extrinsic facts, known as the colloquium, to demonstrate that a reasonable person would associate the statement as referring to P.
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What is the rule on Falsity?
The statement about the plaintiff must be false.
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What is the rule on Falsity? Include the differentiations.
Under the Common Law, throughout history and up to today, falsity IS presumed (in plaintiff prima facie case).
In modern law, instead of P getting the presumption of falsity, IF you are a PRIVATE or plaintiff in a PUBLIC matter AND its a media defendant, you have to prove the element under a preponderance of the evidence standard. If you are a public figure in a public matter, preponderance of the evidence. Private plaintiff public matter non media, it is unresolved.
Rationale: Ties to Con Law in that you want to raise hurdle for public matter.
NOTE: Common Law still applies today.
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What is the rule on Fact versus Opinion?
Defamatory statements must be factual in nature.
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What is the common law treatment on opinion?
* Under the common law, the general rule is that opinions are not actionable
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What is the modern law approach on opinion?
Under the modern approach, opinions are actionable when they imply false facts (where the statement is made provably false).
A statement is provably false when:
Implies false facts; or
Is contrary to the speaker’s actual viewpoint
NOTE: Statements that cannot be reasonably interpreted as facts about a person are not actionable
SNL skit, hyperbole, parody
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What is the three element rule on published?
Rule: The defamatory statement must be:
1. Negligently or intentionally communicated; (intentional to communicate not to defame);
2. To at least one person other than P; and
3. Understood by the third party recipient.
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What is the rule on Self Publication?
Where P is the one who publishes the statement made by D, P may not recover damages unless the publication occurs within a reasonably foreseeable consultation.
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What is the general rule on Republication? Provide the Common Law and Modern Law approach.
- Under the traditional common law, every repetition of a defamatory statement constituted an actionable defamation claim. [15 times printed, 15 cases].
- Modern courts apply the single publication rule, meaning even in repetitions of publication, such as articles that are printed (one edition) or shows that are repeatedly aired, constitute one single publication and one claim of defamation.
NOTE: Producing a NEW edition with the same defamatory material might give rise to a secondary defamation claim, however.
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What is the rule on secondary republishers?
Secondary republishers are NOT liable for defamation UNLESS they had knowledge or reason to know of the defamatory content.
(e.g., library, bookstore, internet)
If a library adds the book to their collection, they wouldn’t be liable as secondary republisher.
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Under the publication rule, what is the Act on internet providers and what does it provide?
Communications Decency Act
- Providers of interactive websites are NOT treated as publishers of info. that passively lands on their website
* Ex: Twitter not liable for defamatory tweet by user.
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What is the general statement to introduce damages?
P’s entitlement to damages turns first on whether the statement by D constitutes libel or slander.
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What four factors should be considered to understand whether the statement constitutes libel or slander?
o Form (spoken or written)
o Permanence (How long will the statement be published/accessible to others?)
o Dissemination (How many people will observe or discern the statement?)
o Premeditation (Did D know the extent of the statement’s publication?)
NOTE: This is a balancing test.
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What is the general rule on damages for slander?
The general rule is that slander requires proof of special damages before the plaintiff can receive general damages.
* Special damages: Suffered actual economic loss (Loss of job, business, profits)
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What is the exception for the general rule on damages for slander?
o Exception to slander rule, allows for general damages right off the bat (you don’t need to prove special damages first).
o Applies where the slanderous meets one of the following categories:
Accusations of serious crimes
Loathsome communicable diseases
Professional incompetence
Serious sexual misconduct
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What is the general rule on damages for libel?
o Permits general damages right off the bat when the defamatory meaning is understood from the written words alone.
General damages: Compensation for harm to reputation in the community
* Ex: Pain and suffering from emotional distress, loss of friends, humiliation etc.
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What is libel per quod?
Libel per quod is where extrinsic evidence is required to show the defamatory meaning.
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What is the rule on damages for libel per quod?
Some jurisdictions require a showing of special damages before general damages are awarded; others do not and presume general damages.
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When does the State of Mind element apply?
- Public plaintiffs
- Public matters
NOTE: o Free speech considerations require a higher standard for defamation claims regarding public figures and public matters.
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What is the Rule on State of Mind?
In defamation cases where the plaintiff is a public figure OR the defamatory statement concerns a public matter, the Plaintiff must show the Defendant acted with actual malice.
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In what three situations is a Plaintiff determined to be a public figure?
1. Public official: One who is a government employee and has substantial control or responsibility over governmental affairs.
2. All-purpose public figures: Pervasive fame/generally known.
3. Limited public figure
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How is a Limited Public Figure defined (three elements)?
Person where (a) there is a controversy, (b) P must have thrusted himself into the controversy; and (c) the statement relate to the controversy.
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Who decides the Plaintiff's status as to whether he or she is a public figure?
Question of law decided by the judge.
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How is actual malice defined?
A statement made with:
(a) Knowledge that it was false; OR
(b) Reckless disregard for whether it was true or false where Reckless disregard means (a) D entertained serious doubts as to the truth of his publication OR (b) D published with a high degree of awareness of the probable falsity of the statement.
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If the plaintiff is a private plaintiff dealing with a public matter, how does the state of mind requirement shift?
So long as the jurisdiction does not impose strict liability, the jurisdiction can decide whether to use negligence as the state of mind or malice as the standard of liability.
Where the plaintiff is a private figure, the state could require the plaintiff to prove either the "actual malice" standard or that the defendant failed to use reasonable care in determining the truth of the statement.
NOTE: To recover punitive damages, must show actual malice.
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How does the damages element change for PRIVATE Ps in a PUBLIC matter?
o Private P must prove actual damages.
The only time that you vary from the regular rules, is when it is a PRIVATE plaintiff on a PUBLIC matter. In this case, you have to prove your actual damages. Bring in experts. And show HOW damaged. Show me how your business lost value. Have psych come in and testify on your emotional distress. And if you want punitive damages, show actual malice. Showing of actual malice will also get you presumption of general damages.
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What are the four categories of defenses to a defamation claim?
1. Consent
2. Truth
3. Absolute Privileges
4. Qualified Privileges
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What are the three elements to the defense of Consent
1. Consent obtained without fraud or duress;
2. Consenter must be mentally competent; and
3. Publication does not exceed scope of the consent.
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What happens if the D successfully proves an absolute privilege?
This is a complete bar to recovery.
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What are the 5 categories of Absolute Privilege?
1. Executive
2. Judicial
3. Legislative
4. Mandatory Broadcast
5. Spousal
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What is the Executive Privilege?
An absolute bar to recovery that
* Protects statements made by (1) high ranking state and federal officials who are (2) exercising functions of the government.
* The Federal Tort Claims Act protects (1) statements by any federal official (2) commenting within the scope of employment.
NOTE: A statement outside of the scope of employment may be actionable.
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What is the judicial privilege?
Statements that are:
(1) Published in the course of a judicial proceeding; and
(2) have some sort of reasonable relationship to the proceeding
NOTE: Privilege does not protect against a perjury claim.
NOTE: Press statements made in relation to a judicial proceeding are not protected by the judicial privilege.
Test: Ask whether a judge was on the bench when the statement was made.
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What is the legislative privilege?
Statements made (1) during a legislative proceeding (2) as part of the deliberative process (where a legislature conducts hearings prior to making a decision.)
NOTE: Does not need to be related to subject matter at hand.
NOTE: Includes witness statements made during a legislative hearing.
NOTE: Does not include statements made while campaigning
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What is the mandatory broadcast privilege?
An absolute privilege when a radio or television provider is broadcasting a major public event, such as a presidential election debate, the broadcaster is protected from liability from a defamation suit for statements made during the live broadcast.
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What is the spousal communications privilege?
Any defamatory statement communicated solely to your spouse does not constitute a “publication” that is actionable as a defamation claim.
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What is the umbrella statement to make on qualified privileges?
Unlike an absolute privilege that bars suit for defamation, qualified privileges serve as an affirmative defense to defamation claims once litigation begins.
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What are the three categories of qualified privileges?
1. Privilege of Fair Comment (mostly outdated)
2. Reporter's Privilege
3. Interest Privilege
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What is the Privilege of Fair Comment?
*At CL, privilege of fair comment protected comment or criticism on matters of public concern provided the opinion was based on true or privileged facts.
o Protected critiques on scientific or artistic matters and commentary on the actions of celebrities and public figures (People Magazine, for example)
* Privilege was lost if the opinion was not sincerely held, or the opinion was published out of spite or ill-will
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What is the Reporters Privilege (qualified privilege)?
Reports on public proceedings are conditionally privileged so long as the reports are verbatim transcriptions or a fair and accurate summary.
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What are the three types of interest privileges?
1. Common Interest
2. Third Party
3. Self-Interest
4. Public Interest
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What is the common interest privilege under qualified interest privileges?
* Protects D from defamation claim when the defamatory statement is communicated to a person who shares a common interest with D and the statement relates to that interest.
o Clubs, business relationships, churches, unions, or families.
* Examples: Defamatory statements about the boss made amongst members of a union where the statement relates to union rights. Defamatory statements about a priest when communicated amongst parishioners is protected.
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What is the third party privilege?
Conditionally protects defamatory statements where D has a moral or legal duty to 3rd party recipient regarding the subject matter.
o Example: Nurse tells patient not to permit the doctor to administer a medicine because Nurse falsely believes the doctor plans to kill patient with medicine.
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What is the self-interest privilege?
Statements made in D’s self-interest are conditionally privileged.
Example: Storekeeper statement to EEs about customer
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What is the public interest privilege?
* Statements made in the public interest are protected from defamation.
o Example: 911 calls to report an emergency; neighbor call to report child abuse
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Who makes the decisions for qualified privileges?
o Judge determines if the privilege applies.
o Jury decides if the privilege is lost.
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How is a qualified privilege lost?
Qualified immunity may be lost when:
i. excessive publication
ii. knowledge the communication is false
iii. recklessness regard of their truth or falsity
iv. in some juris., D’s acting out of spite or ill will
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What are the four different right of privacy claims?
1. Commercial appropriation.
2. Intrusion into seclusion.
3. Public disclosure.
4. False light.
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What are the two elements for Commercial Appropriation?
1. The unauthorized appropriation for one's own benefit;
2. Of the name or likeness of another.
NOTE: Emotional distress damages NOT allowed.
Example: Photographer took pics of professor using ABC computer.
ABC Computers ran ads: "Best college professor use ABC Computers." The ads also ran the picture of the professor eating his lunch and using the computer.
The Professor was very upset with this use of his picture in the advertisement.
NOTE: This includes the use of a person's name or likeness for someone else's commercial purposes
NOTE: Professor Brilliant has an action for appropriation of his name and likeness for the benefit of another. One frequently reads about people getting paid to endorse products. This Right of Privacy action makes sure that the companies have to pay people for that right. Notice that the next question actually deals with the issue of a celebrity having the value of their talent used.
NOTE: Robin has an action for appropriation. The truck manufacturer took her voice "likeness" and the song and used it for a commercial purpose without Robin's consent.
NOTE: In this form, the claim is sometimes strangely called a right of publicity.
NOTE on Damages:
- Measure of loss for the tort of appropriation is the value of the name or likeness that has been appropriated. Although it would seem that emotional distress or some other personal injury loss should be recoverable, such losses are usually not allowed.
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What are the three elements for intrusion into seclusion?
1. Intentionally intrusion, physically or otherwise;
2. upon the solitude or seclusion of another; and
3. the intrusion would be highly offensive to a reasonable person.
NOTE: No publication required.
NOTE: Differs from trespass in that you do not need to be on the property in an intrusion into seclusion claim.
Example: Guy flies drone over someone's home and snaps photos to prove having affair.
Example: Cop busting into home with no warrant.
NOTE: Intrusion does not require a publication. It is the intrusion which must be highly offensive to a reasonable person that gives rise to the claim. If information is revealed to the public, that may give rise to an additional claim.
NOTE: The tort differs from trespass. A trespass may also be an intrusion, but an intrusion doesn't have to be a trespass. Peeping in windows, wire taps, eavesdropping, and other forms of prying into the private life of another are intrusions.
NOTE: Because it is highly offensive, the conduct must be substantial in order for their to be recovery.
NOTE: The intrusion claim does protect personal dignity, but it is the expectation of privacy that is the major concern. The taking of a photograph in a private setting could be actionable. The taking of a photography of a plaintiff in a public place would not, necessarily, give rise to an intrusion claim.
NOTE: An action could be brought for the searching or intrusion into a person's wallet, purse, bank accounts or safe. It does not require the intrusion into their home.
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What are the four elements for public disclosure?
1. Publication of a matter;
2. Concerning the private life of another;
3. Which is highly offensive to a reasonable person; and
4. Not a matter of public concern.
NOTE: Public matters will be barred. So claim can ONLY come from a private plaintiff and be a private matter.
Example: Business owner puts sign up in window saying Mr. Customer is a dead beat who has not paid bill in two years.
NOTE: Constitutional concern - the defendant may claim a First Amendment right to write, speak, or publish the truth.
NOTE: If, however, the First Amendment allows an action only when the statement is false, then this action may be barred. This means that It is only when the material is of a purely private matter that the possibility of an action will lie.
KEY: When the information being published is already public--i.e., it concerns a public person, a public event or a public issue--no action will lie.
When the information is true, and concerns a public issue, even when it is about a private person, there is a reduced likelihood of recovery.
The only remaining opportunity for recovery would be for purely private information about a private person concerning a private issue.
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What is the rule for false light?
1. Widespread publication;
2. Of a matter concerning another that;
3. places the other before the public in a false light; and
4. would be highly offensive to a reasonable person; AND
5. the actor had knowledge of or acted in reckless disregard as to truth. (ACTUAL MALICE).
NOTE: If private P on public matter, apply intent level per jurisdiction.
NOTE: Where public plaintiff,
Example: Newspaper publishes untrue article about a taxi driver being a crook.
NOTE: MUST be a publication (writes, reports, or publishes material).
Where the plaintiff is a private figure, the state could require the plaintiff to prove either the "actual malice" standard or that the defendant failed to use reasonable care in determining the truth of the statement.
