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Bar Exam: Outline > Torts (MBE/MEE) > Flashcards

Torts (MBE/MEE) Flashcards

1
Q

Intentional Torts: Elements

A

Three elements: Act, intent, causation
* Tortious Conduct: Voluntary act/failure to act
* Intent (Requisite Mental State): Purposeful (or reckless for IIED), or D knows consequence is substantially certain
* Causation: Resulting harm legally (i.e. factually and proximately) caused by D’s conduct

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2
Q

Transferred Intent

A

When intent to commit one tort satisfies required intent for a different tort; this applies when a person commits:
* Different intentional tort against same person that he intended to harm;
* Same intentional tort against a different person; or
* A different intentional tort against a different person

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3
Q

Transferred Intent: Battery, Assault, IIED, False Imprisonment

A
  • Battery: Applies
  • Assault: Applies
  • False Imprisonment: Applies
  • IIED: May apply if if instead of harming intended person D’s conduct harms another, but DOES NOT apply to IIED when D intended to commit a different intentional tort against a different victim
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4
Q

Battery: Elements

A

(1) D intends to cause contact with P’s person (or anything connected to P’s person);

(2) D’s conduct causes such contact; and
* Indirect contact counts
* D’s conduct must be voluntary and affirmative

(3) Contact causes bodily harm or is offensive to P
* Harmful: Injury, pain, illness
* Offensive: Reasonable-person standard (objective), or when D knows contact is highly offensive to P

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5
Q

Battery: Damages

A
  • No proof of actual harm is required
  • P can recover nominal damages
  • Eggshell-plaintiff rule applies
  • Many states allow punitivie damages if D acted **outrageously **or with malice
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6
Q

Eggshell-Plaintiff Rule

A

D is liable for all harm that flows from an accident/intentional tort, even if it is much worse than D expected it to be

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7
Q

Assault: Elements

A

(1) D intends to cause P to anticipate imminent, harmful, and offensive contact, and
* Anticipated contact: No actual contact required
* Imminence: Threats of future harm or threats made by D physically too far away do not count
* Mere words not enough
* Intend: Must intend either apprehension or contact itself

(2) D’s affirmative conduct causes P to anticipate such contact
* P’s apprehension must be reasonable and P must be aware of D’s acts

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8
Q

Assault: Damages

A
  • No proof of actual damages required
  • P can recover nominal damages
  • Punitive damages may be available
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9
Q

Intentional Infliction of Emotional Distress (IIED): Elements

A

(1) Extreme and outrageous conduct by D, which
* Extreme and otrageous: Beyond human decency, outrageous

(2) Causes severe emotional distress to P, and

(3) Intent by D to cause such distress

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10
Q

IIED: Public Figures

A

Public figures/officials must show words contain false statement of fact made with “actual malice,”
* Actual malice: Knowledge that statement was false or with reckless disregard to its potential falsity

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11
Q

IIED: Private Figures

A

Cannot recover if conduct in speech is in the context of a matter of public concern

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12
Q

IIED: Third Parties

A
  • Related Bystanders: D can be liable if he distresses a member of victim’s immediate family who is (i) present at time of conduct and (ii) contemporaneously perceieves the conduct
  • Defendant’s Purpose: If D’s purpose is to cause severe emotional distress to a third party, third party can recover if the distress results in bodily injury to the third-party, regardless of if the third party is a family member or contemporaneously perceived the event
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13
Q

IIED: Damages

A
  • P must prove severe emotional distress beyond what a reasonable person should endure
  • Hypersensitivity: D only liable if D knew of P’s hypersensitivity
  • Physical injury is not required
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14
Q

False Imprisonment: Elements

A

(1) D intends to confine another within a limited area;
* Confinement: Limited area or when P is compelled to move in restricted way (e.g., physical barriers or force, threats, invalid use of legal authority, duress, failure to provide means of escape)

(2) D’s conduct causes P’s confinment or D fails to release P from confinement despite a duty to do so; and
* Length of confinement: Immaterial except as to amount of damages

(3) P is conscious of the confinement

Damages
* Majority: Actual damages unnecessary, P can recover nominal and punitive damages
* Minority: Actual damages necessary only if P was unaware of confinement

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15
Q

False Imprisonment: Damages

A
  • P can recover nominal damages
  • Actual damages are also compensable
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16
Q

Defenses to Intentional Torts

A
  • Consent
  • Self-defense
  • Defense of third persons
  • Defense of property
  • Discipline or control of minor child
  • Protect individuals from self-harm
  • Privilege of arrest and other crime-related conduct
  • Merchant’s privilege
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17
Q

Defense to Intentional Torts: Consent

A
  • D not liable if P gave valid, voluntary consent
  • Types of consent: Actual, apparent, or presumed
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18
Q

Consent: Actual, Apparent, Presumed

A

Actual (express): P is willing for conduct to occur; revoked by clear communication
* D’s conduct may not exceed scope of consent

Apparent: D reasonably believes that P actually consents

Presumed (implied): D is justified based on social norms or D has no reason to believe P would not actually consent if D had requested consent
* Emergencies: Fair to assume someone in need would allow rescuer to help absent explicit consent
* Injuries arising from athletic contests
* Mutual consent to combat

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19
Q

Defense to Intentional Torts: Self-defense

A

D must reasonably believe that force is (i) necessary and (ii) proportionate to the force P is intentionally inflicting
* Defensive purpose: D’s force must be defensive, but defense need not be D’s sole motive for force
* No duty to retreat: Including deadly force
* Withdrawal: D no longer has privilege to use force if P withdrawals
* Initial Aggressors: Generally not entitled to claim self-defense

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20
Q

Defense to Intentional Torts: Self-defense using Non-Deadly Force

A

D reasonably believes that (i) P’s force is intentional and unprivileged, (ii) D’s force is proportional, and (iii) D can prevent P’s force/threat only be immediate force

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21
Q

Defense to Intentional Torts: Self-defense using Deadly Force

A

D reasonably believes that (i) P’s force is intentional and unprivileged, (ii) D is at risk for death/serious bodily harm/rape, and (iii) D can prevail only by immediate use of deadly force

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22
Q

Defense to Intentional Torts: Self-defense and Bystanders

A

D may use nondeadly force against a bystander if (i) the force P is using against D is substantially greater than the force D uses against the bystander, and (ii) D’s use of force against the bystander is immediately necessary

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23
Q

Defense to Intentional Torts: Defense of Third Persons

A

(i) Reasonable belief that defended party is entitled to use force to defend themselves,
(ii) Immediately necessary

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24
Q

Defense to Intentional Torts: Defense of Property

A

D privileged to act to prevent P’s immediate intrusion if:

(i) P’s intrusion is not privileged;

(ii) D reasonably believes P is intruding/about to intrude and D can prevent it by means used;

(iii) D asks P to stop or such request would be useless/dangerous

(iv) Means used are reasonably proportionate to value of interest protecting; and
* Must use legal action to reclaim real or personal property wrongfully taken

(v) Means used are not intended to/likely to cause death/serious bodily injury
* No deadly force allowed (ex. deadly traps)

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25
Q

Defense to Intentional Torts: Discipline or control of minor child

A
  • Parents: May use reasonable force as necessary to discipline children
  • Educators: May use reasonable force to maintain order or safety
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26
Q

Defense to Intentional Torts: Privilege of Arrest for Private Actors

A

Felony: Permitted to use reasonable force to make arrest if (i) felony has actually been committed; and (ii) arresting party has reasonable grounds to suspect that the person being arrested committed the felony
* No defense for mistakes as to identity of felon or whether felony was actually committed

Misdemeanor: Only if committed (i) in presence of arresting party and (ii) in breach of peace

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27
Q

Defense to Intentional Torts: Privilege of Arrest for Police

A

Felony: Must reasonably believe that (i) a felony has been committed and (ii) that the person arrested committed it.
* Not subject to tort liability if officer makes mistake as to whether felony was committed

Misdemeanor: Misdemeanor must have been committed in the officer’s presence

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28
Q

Defense to Intentional Torts: Merchant’s Privilege

A
  • Seller privileged to use force for purpose of (i) investigating potential theft, (ii) recapturing personal property, and (iii) facilitating arrest
  • Use of force must be (i) on or immediately near merchant’s premises, (ii) reasonable (no deadly force), and (iii) of reasonable duration
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29
Q

Trespass to chattels

A

Intentional interference with P’s right of possession by either:
(i) dispossessing or
(ii) using or intermeddling with P’s chattel

  • Intent: Requires intent to perform the act that interferes; transferred intent applies
  • Mistake of law or fact: Not a defense
  • Damages: Actual, loss of use, nominal damages; no loss of use damages without dispossession
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30
Q

Conversion

A

Serious interference with plaintiff’s possession of her chattel that deprives P of the use of the chattel
* Intent: Must only intend to commit act that interferes; transferred intent does not apply (must intend to control particular chattel)
* Mistake of law or fact: Not a defense
* Damages: Full value of property or replevin

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31
Q

Trespass to land

A

Physical invasion of P’s property
* Intent: Enter land or cause physical invasion, not to trespass; transferred intent applies
* Defenses: Private or public necessity

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32
Q

Trespass to land: Private necessity defense

A
  • Qualified privilege for person to enter or remain on land to protect own person/property from serious harm
  • Not liable for trespass but responsible for actual damages
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33
Q

Trespass to land: Public necessity defense

A
  • Absolute privilege to avert imminent public disaster
  • Not liable for damage if actions reasonable or reasonable belief that necessity existed
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34
Q

Private Nuisance

A

A substantial (offensive to average reasonable person in community) and unreasonable (balance the interests of the plaintiff and defendant) interference with another’s use or enjoyment of his land

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35
Q

Private Nuisance: Defenses

A
  • Regulatory Compliance: Incomplete defense; admissible but not determinative
  • Coming to the Nuisance: Does not entitle D to judgment as a matter of law but jury may consider
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36
Q

Public Nuisance

A

Unreasonable interference with a right common to the general public
* Proper plaintiff: Private citizen suffering harm different in kind from general public
* Defenses: Same as private nuisance

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37
Q

Abatement of Nuisances

A
  • Private: Reasonable force permitted to abate; must give D notice of nuisance and D refuses to act
  • Public: Absent unique injury, public nuisance may be abated only by public authority
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38
Q

Negligence

A

A prima facie case of negligence requires proof of:
* Duty: Obligation to protect another against unreasonable risk of injury
* Breach: Failure to meet that obligatin
* Causation: Close causal connection between action and injury
* Damages: Harm suffered

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39
Q

Duty

A

Owed to all foreseeable persons who may be injured by D’s failure to meet reasonable standard of care
* Cardozo (majority): Ps within zone of foreseeable harm
* Andrews (minority): If D can foresee harm to anyone resulting from his negligence, D owed duty to anyone harmed

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40
Q

Duty to Affirmatively Act

A

Generally, there is no duty to act. However, there is an affirmative duty to act in the following circumstances:
* Assumption of duty (e.g., aid or rescue)
* Placing another in peril
* By contract
* By authority
* By relationship (e.g., employer-employee, parent-child, common carrier-passenger)
* By statute imposing an obligation to act

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41
Q

Duty to Rescuers

A
  • D liable for negligently putting rescuer/rescued party in danger
  • Firefighter’s Rule: Emergency professionals barred from recovery if injury results from risk of job
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42
Q

Duty: Standard of Care

A

Reasonably prudent person under the circumstances (objective standard)
* Physical (not mental) characteristics are considered
* D who possesses special skills/knowledge must exercise superior competence with reasonable attention and care

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43
Q

Standard of Care: Intoxication

A

Voluntary intoxicated person held to same standard as sober person, but not if intoxication was involuntary

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44
Q

Standard of Care: Children

A
  • Reasonable child of similar age, intelligence and expereince, unless child engaged in high-risk adult activity, then held to adult standard
  • Children under 5 generally found incapable of negligent conduct
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45
Q

Standard of Care: Common Carriers

A

Highest duty of care consistent with practical operation of the business

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46
Q

Standard of Care: Inkeepers

A
  • Majority: Ordinary negligence
  • Common Law: “Slight negligence”
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47
Q

Standard of Care: Automobile Drivers

A
  • Majority: Ordinary care to guests as well as passengers
  • “Guest Statute” (Minority): Refrain from wanton & willful misconduct
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48
Q

Standard of Care: Bailor

A
  • Gratuitous: Duty to warn bailee of known dangerous defects
  • Compensated: Duty to warn bailee of defects that are known or should have been known by bailor had he used reasonable diligence
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49
Q

Standard of Care: Bailee

A
  • Gratuitous: Liable only for gross negligence
  • Compensated: Must exercise extraordinary care
  • Mutual benefit: Must take reasonable care
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50
Q

Standard of Care: Sellers of real property

A
  • Duty to disclose known, concealed, unreasonably dangerous conditions
  • Liability to third parties continues until buyer has a reasonable opportunity to discover and remedy defect
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51
Q

Standard of Care (Restatement): Trespassers, Invitees, and Licensees

A
  • Reasonable care under all circumstances
  • Trespass considered by jury in determining reasonable care
  • Flagrant trespasser: Duty not to act in intentional, willful or wanton manner causing physical harm
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52
Q

Standard of Care (Traditional): Trespassers

A
  • Refrain from willful, wanton, reckless or intentional misconduct toward trespassers
  • No “spring-guns”
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53
Q

Standard of Care (Traditional): Discovered Trespassers

A

Warn or protect against concealed, dangerous, artificial conditions

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54
Q

Standard of Care (Traditional): Undiscovered Trespassers

A

Generally no duty unless owner should reasonably know that trespassers are entering land, then same duty owed a licensee

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55
Q

Standard of Care: Attractive Nuisance

A

Involves injuries to trespassing children, liable if:
* Artificial condition exists in a place where owner knows or should know children are likely to trespass;
* Condition imposes and unreasonable risk of serious bodily injury;
* Children cannot appreciate danger due to their youth;
* Burden of eliminating danger is slight compared with risk of harm; and
* Land possessor failed to exercise reasonable care to protect children

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56
Q

Invitee

A

Invited to enter for purposes for which the land is held open or for business purposes

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57
Q

Standard of Care (Traditional): Invitee

A
  • Reasonable care to inspect, discover dangerous conditions, and protect invitee from them
  • Non-delegable duty
  • Duty does not extend beyond scope of invitation
  • Recreational Land Use: Only liable if (i) charges a fee or (ii) acts willfully, maliciously, or with gross negligence
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58
Q

Licensee

A

Enters land of another with permission or privilege (e.g., social guest; emergency personnel)

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59
Q

Standard of Care (Traditional): Licensee

A
  • Warn of concealed dangers that are known or should be obvious
  • Use reasonable care in conducting activities on the land
  • No duty to inspect
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60
Q

Standard of Care: Landlords/Tenants

A
  • Landlord: Injuries occuring in common areas resulting from hidden dangers about which landlord fails to warn, on premises leased for public use, as a result of a hazard caused by negligent repair, or involving a hazard landlord agreed to repair
  • Tenant: Liable for injuries to third parties due to conditions within tenant’s control
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61
Q

Standard of Care: Off-premises victims

A
  • No duty for harm by natural condition
  • Duty to prevent unreasonable risk of harm caused by artificial condition
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62
Q

Standard of Care: Sellers of real property

A

Duty to disclose any concealed and unreasonably dangerous conditions

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63
Q

Breach (Modern Approach)

A

Modern factors for determining breach (B<P*L analysis)
* Foreseeability of harm;
* Severity of harm; and
* Burden on D to prevent the harm

64
Q

Breach (Traditional Approach)

A

Compare D’s conduct with what reasonably prudent person would do under the circumstances (objective)

65
Q

Breach: Custom

A

Evidence of custom is generally admissible but not conclusive in establishing proper standard of care

66
Q

Breach: Custom (Professionals)

A

Deviation or compliance with custom is dispositive of breach

67
Q

Breach: Custom (Physicians)

A
  • Majority: National Standard
  • Minority (Traditional): Same or similar locale standard
68
Q

Breach: Informed Consent

A

A physician’s failure to comply with informed consent rquirement is medical negligence (malpractice) unless:
* Risk is commonly known,
* Patient is unconscious
* Patient waives informed consent
* Patient is incompetent, or
* Disclosure too harmful

69
Q

Negligence Per Se: Elements

A
  1. Criminal or regulatory statute imposes a specific duty for protection of others
  2. D neglects to perform the duty
  3. D liable to anyone in the class of people intended to be protected by statute
  4. For harms of the type the statute was intended to protect against
70
Q

Negligence per se: Defenses

A
  • Compliance impossible or more dangerous than noncompliance
  • Violation reasonable under the circumstances
  • Statutory vagueness or ambiguity
  • Compliance with federal regulation preempts common-law tort action
71
Q

Res ipsa loquitor: Elements

A
  1. The type of accident would not normally occur absent negligence;
  2. The injury was caused by an agent or instrumentality within exclusive control of D; and
  3. The injury was not due to P’s own actions.
72
Q

Res ipsa loquitor: Effect

A
  • Does not change standard of care
  • Establishes inference of negligence sufficient to avoid dismissal
73
Q

Res ipsa loquitor: Exclusivity requirement

A
  • Modern trend favors generous interpretation of exclusivity
  • Product Liability: Many courts ignore exclusivity if it is clear that negligence took place during production
  • Medical Malpractice: Some jurisdictions presume each D breached duty of care unless each D rebuts if many mediacl personnel had access to P during surgery
74
Q

Causation

A

But for D’s conduct, injury wouldn’t have occurred

75
Q

Causation: Substantial-Factor test

A
  • Arises when there are multiple causes of harm and each alone would have been a factual cause of P’s injury
  • Conduct of each D is a cause in fact if it was a substantial cause of the injury
76
Q

Causation: Alternative Causation

A
  • Arises when P’s harm is caused by multiple Ds and each D’s conduct was individually tortious
  • Burden of proof can shift to Ds to prove that each was not the cause in fact
77
Q

Causation: Loss of Chance

A

If P’s chance of recovery was <50% before D’s conduct, may be able to recover percentage of total damages equal to difference between chance of recovery before and after D’s negligence

78
Q

Proximate Cause

A
  • Majority: P must show that injury was a foreseeable result of D’s conduct
  • Minority: P’s harm was within scope of liability of D’s conduct
79
Q

Proximate Cause: Intervening vs. Superseding Causes

A

Intervening cause: An outside force that contributes to P’s harm after D’s act
* If foreseeable, will not cut off D’s liability
* If unforeseeable, it is a superseding cause and cuts off D’s liability

80
Q

Negligence: Damages

A
  • Must prove actual injury (bodily harm or property damage), not just economic loss
  • Nominal damages and attorney’s fees not permitted in negligence
  • Pure economic loss: Only recoverable with related personal injury or property damage
81
Q

Collateral source rule

A
  • Traditional Rule: Benefits from outside sources (ex. P’s insurance) not credited against D’s liability; payment by D’s insurer are not from a collateral source and are credited against D’s liability
  • Modern trend: Statutes have eliminated or substantially modified rule to prevent double recovery
82
Q

Punitive Damages

A
  • Requires clear/convicing evidence of malicious, willfull and wanton, or reckless behavior
  • Can include torts that inherently involve this state of mind or behavior
  • Generally cannot exceed single-digit ratio to compensatory damages
83
Q

Negligent Infliction of Emotional Distress: Zone of Danger

A

(i) P was within “zone of danger” of the threatened physical impact;
(ii) Physical impact caused emotional distress; and
(iii) Emotional distress is manifested by physical symptoms (e.g., nightmares, shock, ulcers)
* Minority Rule: Allow recovery without a physical manifestation of harm

84
Q

Negligent Infliction of Emotional Distress: Bystander Recovery

A

A bystander outside the zone of danger can recover if:
* (i) closely related to person injured by D;
* (ii) present at the scene;
* (iii) personally observed or percieved the injury; and
* (iv) manifests physical symptoms of emotional distress

85
Q

Negligent Infliction of Emotional Distress: Special Relationship

A
  • Most common examples are a mortician handling a corpse or a common carrier mistakenly reporting the death of a relative
  • No threat of physical impact or physical symptoms required
86
Q

Wrongful Death

A
  • Compensate family members of the deceased
  • Recoverable damages include loss of support, companionship, society and affection, but not pain/suffering of P
  • Recovery limited to what decedent could recover
87
Q

Survival Actions

A
  • Provide compensation the individual would have received had they not died
  • Permit representative of decedent’s estate to pursue any claims decedent would have had at time of death, including pain and suffering
  • If survival and wrongful death actions permitted, no double recovery allowed
88
Q

Loss Arising from Injury to Family Member

A

Loss of consortium and society for physical/emotional injury to spouse or child

89
Q

Wrongful Life

A
  • Minority allows action by child for failure to perform contraceptive procedure or diagnose congenital defect
  • Damage limited to those attributable to disability
90
Q

Wrongful Birth

A
  • If birth due to failed contraceptive procedure or diagnosis of defect, many states permit parents to recover medical expenses for caring for disabled child
  • Some states allow mother to recover pain/suffering damages and medical expenses for labor
91
Q

Vicarious Liability: Employer’s Liability for Employee’s Torts

A
  • Occurs when employer has a right to control means and methods of employee
  • Tort occurs within scope of employment (acts employee is employed to do or acts intended to profit or benefit employer)
  • Employer may be liable for detour (minor deviation from scope) but not frolic (unauthorized and substantial deviation)
92
Q

Vicarious Liability: Employer’s Liability for Employee’s Intentional Torts

A

Not liable for intentional torts unless:
1. Force inherent to job (e.g., bouncer),
2. Employee motivated to benefit employer, or
3. Authorized to act/speak for employer and position provided opportunity for tort (e.g., fraudulent contract as employer’s agent)

93
Q

Direct Liability: Employer’s Liability for Employee or IC’s Torts

A
  • Employees: Negligent hiring, training, supervision, or otherwise controlling an employee is employer’s negligence
  • Independent Contractor: Negligent selection of independent contractor
94
Q

Vicarious Liability: Independent Contractors

A

Employers generally not liable for IC’s torts, unless:
1. Retention of control,
2. Abnormally/inherently dangerous activity or nondelegable duty, and
3. IC acting under apparent agency

95
Q

Vicarious Liability: Business partners/Joint Enterprise

A

Liable for tortious conduct of each other if committed within scope of business purposes

96
Q

Vicarious Liability: Car Owners

A

Negligent Entrustment: If D knows/should know of driver’s or user’s negligent propensities
Family-purpose doctrine: D liable for family members driving with permission
* Compare with Owner Liability Statutes: Liable for anyone driving with permission

97
Q

Vicarious Liability: Parent/Child

A

Only if child acted as parent’s agent, state statute applies, or if assumed liability on child’s driver’s license application for negligent driving

98
Q

Direct Liability: Parent/Child

A

Primarily negligent if fails to exercise reasonable care to prevent minor child from intentionally/negligently harming third party if parent:
(i) can control child, and
(ii) knows or should know the necessity and opportunity for exercising such control

99
Q

Dram-shop liability

A
  • Recognizes cause of action against seller of intoxicating beverages when a third party is subsequently injured due to buyer’s intoxication
  • If buyer was a minor or already intoxicated, seller may be liable
  • Many states extend liability to social hosts for injuries to intoxicated guest and/or third parties
100
Q

Qualified Immunity: Government

A
  • Immunity limited by FTCA (ex. waives immunity for intentional torts committed by law enforcement officers)
  • Immune from tort liability: Enumerated torts, discretionary functions, gov’t contractor product liability unless failed to warn or conform with government specifications, and most traditional government activities
101
Q

Qualified Immunity: States and Municipalities

A
  • States: Most states have waived sovereign immunity, at least partially, but acts very
  • Municapilities: Usually governed by state tort claims acts; immunity traditionally attached only to governmental functions; see public-duty rule
102
Q

Qualified Immunity: Public-duty Rule

A

No liability to any one citizen for municipality’s failure to fulfill a duty that owed to public at large, nuless special relationship creates special duty

103
Q

Immunity: Government Officials

A
  • Immunity applies if official is performing discretionary functions entrusted by law unless acts with malice or improper purpose
  • No tort immunity for carrying out ministerial acts
  • Absolute immunity from personal liability: Legislators performing legislative functions, judges performing judicial functions, prosecutors
104
Q

Immunity: Intra-family

A
  • Abolished in most states
  • Parent-child immunity generally limited to core parenting activities
105
Q

Joint & Several Liability

A
  • Each D found liable for single indivisble harm liable for the entire harm
  • Note: Default for MBE
106
Q

Pure Several Liability

A

Each D liable only for his proportionate share

107
Q

Contribution

A
  • Tortfeasor who paid more than fair share of common liability generally can recover excess of fair share from joint tortfeasor
  • Not generally available for intentional tortfeasors
108
Q

Indemnification

A

Shifting of loss from vicariously liable tortfeasor to primarily responsible party

109
Q

Defenses to Negligence: Contributory Fault

A
  • P’s fault is complete bar to recovery
  • Not a defense to an intentional tort, gross negligence, or recklessness
110
Q

Contributory Negligence: Last Clear Chance Rule

A
  • P may mitigate legal effect of own fault if D had last clear chance to avoid injuring P
  • D must have actual knowledge of P’s inattention
  • D liable to helpless P if D knew or should have known of P’s helpless peril
111
Q

Defenses to Negligence: Pure Comparative Fault

A
  • Not a complete bar to recovery
  • P’s damages reduced by proportion that P’s fault bears to total harm
  • Note: Comparative fault will not reduce P’s recovery for intentional torts
112
Q

Defenses to Negligence: Partial Comparative Fault

A
  • If P is less at fault than Ds combined: P’s recovery reduced by percentage of fault
  • If P is more at fault than Ds combined: P recovers nothing
  • If P and D are equally at fault, P recovers 50% of his total damages
  • Note: Comparative fault will not reduce P’s recovery for intentional torts
113
Q

Assumption of Risk

A
  • Traditional Rule: Unreasonably proceeding in face of known, specific risks affects recovery
  • Contributory-Negligence: No recovery
  • Comparative-Fault: Reduces recovery
114
Q

Assumption of Risk: Exculpatory Clauses in Contracts

A

Unenforceable if:
(i) Disclaims liability for reckless or wanton misconduct or gross negligence;
(ii) gross disparity of bargaining power;
(iii) exculpated party offers services of great importance to public;
(iv) subject to typical contractual defenses; or
(v) against public policy (e.g., common carriers, inkeeprs, and employers cannot disclaim liability for negligence)

115
Q

Strict Liability: Abnormally Dangerous Activites

A
  • D engaged in abnormally dangerous activity subject to SL for personal injuries and property damage caused by activity
  • Abnormally dangerous activity: (i) high risk of harm, (ii) that is not commonly found in the community, (iii) which has a risk that cannot be eliminated with due care
116
Q

Strict Liability: Wild Animals

A

Owner/possessor is S/L for harm done by wild animal despite owner’s precautions to prevent harm, as long as harm arises from dangerous propensity characterstic of animal or about which owner has reason to know
* Includes injuries caused by P’s fearful reaction to unrestrained wild animal

117
Q

Strict Liability: Abnormally Dangerous Animals

A

Owner/possessor S/L for injuries if knows or has reason to know of dangerous propensities abnormal for the animal’s category and harm results

118
Q

Strict Liability: Trespassing Animals

A
  • Owner/possessor S/L for reasonably foreseeable damage caused by trespassing animal if owner knows or has reason to know that pet is intruding on another’s property in way that has tendency to cause substantial harm
  • Trespasser Exception: Not S/L for injuries inflicted by animals against a trespasser, except, in some states, for injuries inflicted by vicious watchdog
119
Q

Defenses to Strict Liability

A
  • Contributory Negligence: Not a defense; does not bar recovery
  • Comparative-Fault: Negligence may reduce P’s recovery under a S/L claim; courts are divided
  • Assumption of Risk: Bars recovery
  • Statutory Privilege: No S/L for D performing essential services
120
Q

Products Liability: Negligence

A
  • Duty: Reasonable care owed to any foreseeable P by commercial manufacturer, distributor, retailer, or seller
  • Breach: Failure to exercise reasonable care in inspection/sale of product (i.e., defect would hav ebeen discovered if D was not negligent)
  • Causation: Factual and proximate
  • Damages: Actual injury/property damage, not pure economic loss
  • Defenses: Contributory/comparative negligence and assumption of risk
121
Q

Strict Products Liability: Elements

A
  1. Product was defective (in manufacture, design, or failure to warn);
  2. Defect existed when it left D’s control;
  3. Defect caused P’s injury when the product was used in a reasonably foreseeable way
122
Q

Manufacturing Defect

A

Product does not conform to D’s own specifications

123
Q

Design Defect

A
  • Consumer Expectation Test: Dangerous beyond expectation of ordinary consumer
  • Risk-Utility Test: Risks outweigh benefits and reasonably alternative design (economically feasible) was available. Failure to use that design rendered product unreasonably safe.
124
Q

Failure-to-warn defect

A
  1. Foreseeable risk of harm
  2. Not obvious to ordinary user of product, and
  3. Risks could have been reduced or avoided with reasonable instructions or warnings
125
Q

Learned-intermediary rule

A

Manufacturer of prescription drug or medical device typically satisfies duty to warn by warning prescribing physician of problems with the drug/device, unless:
* (i) manufacturer knows drug/device will be dispensed without personal intervention or evaluation of a healthcare provider, or
* (ii) in the case of birth control pills

126
Q

Strict Products Liability: Proper Parties

A

Plaintiff: Anyone foreseeably injured
Defendant: Must be in the business of selling (includes manufacturer, distributor, and retail seller)
* If D provides both products and services, generally liable if product is consumed, not if product is only used

127
Q

“Market Share” Liability

A

If P’s injuries are caused by a fungible product and it is impossible to identify which D placed the harmful product into the market,jury can apportion liability based on each D’s share of the market.

128
Q

Strict Products Liability: Defenses

A
  • Comparative Fault: P’s negligence reduces recovery
  • Contibutory negligence: P’s negligence not a defense if P misused product in reasonably foreseeable way or negligently failed to discover defect
  • Assumption of risk: Complete bar to recovery in contributory -negligence states
  • Unforeseeable misuse, alteration, or modification precludes (contributory-negligence states) or reduces (comparative-fault states) recovery
  • Compliance with governmental safety standards: Not conclusive evidence that product is not defective, but may be considered
  • State-of-the-art standard: Compliance with standard will only bar recovery in some states; not applicable to manufacturing defect claims
  • Statute of limitations: Begins to run against P with personal injury when P discovers, or should discover with reasonable care, his injury and its connection to the product
  • Unforeseeable intervening causes
129
Q

Implied Warranties

A
  • Include implied warranties of merchantability and fitness
  • **Privity **(Alternative A, majority): Allows a member of buyer’s family/household to recover for personal injury (not property damage or pure economic loss)
  • Damages: Personal injury; property damage; pure economic loss
130
Q

Implied Warranty of Merchantability

A

Product is generally acceptable and reasonably fit for ordinary purpose

131
Q

Implied Warranty for Fitness for a Particular Purpose

A
  1. Product fit for particular purpose,
  2. Seller must know purpose, and
  3. Buyer must rely on seller’s skill or judgment in supplying product
132
Q

Express Warranties

A
  • Affirmation fo fact or a promise about product; part of the basis of bargain
  • Seller liable for any breach of express warranty, regardless of fault
133
Q

Warranties: Defenses

A
  • Disclaimers: Limitation of consequential damages for personal injury related to consumer goods is unconscionable. Express warranties can be disclaimed only if consistent with warranty (usually not).
  • Comparative fault and A/R: Same as in S/L claims
  • Contributory negligence: Not a bar except when it overlaps A/R
  • Misuse: Defense to implied warranty of merchantability
  • Lack of Notice: Failure to provide seller with notice of breach of warranty within statutorily required time period or “reasonable period of time”
134
Q

Defamation: Elements

A

P may bring an action for defamation if D:
(1) Uses defamatory language;
* Diminishing respect, esteem, or goodwill towards P

(2) Of or concerning the plaintiff
* Reasonable third party believes language refers to particular P

(3) Published to a third party who understands its defamatory nature; and
* Could be intentional or negligent communication to third party

(4) Damages plaintiff’s reputation

135
Q

Defamation: Falsity

A
  • Public figure/matter of public concern: P must prove defamatory statement is false
  • Private figure/not matter of public concern: Not required to prove falsity; D may prove truth as affirmative defense
136
Q

Defamation: Fault

A
  • Public figure: Actual malice (D knows of falsity/reckless disregard of truth)
  • Private figure/matter of public concern: D acted with fault; either negligence or actual malice
  • Private figure/not matter of public conern: At least negligence
137
Q

Defamation: Libel

A
  • Written, printed, or otherwise recorded
  • Common law allows recovery for presumed general damages that compensate P for harm to reputation
138
Q

Defamation: Slander

A
  • Spoken word, gesture, or any form other than libel
  • Special damages or slander per se required; no presumed general damages
  • Damages are usually, but not always, economic loss resulting from third party hearing comments and acting adversely to P
139
Q

Defamation: Slander Per Se

A

No special damages required and general damages permitted as parasitic damages if:
* Accused of committing a crime;
* Conduct reflecting poorly on P’s fitness to conduct trade/profession;
* Loathsome disease;
* Sexual misconduct

140
Q

Defamation: Constitutional Limits on Damages

A
  • Private person/matter of public concern: Actual malice required for punitive or general/presumed damages
  • Private person/not public concern: Actual malice not required for punitive or general damages
141
Q

Defamation: Defenses

A
  • Truth
  • Consent: Cannot exceed scope
  • Absolute Privilege: For remarks (i) during judicial/legislative proceedings; (ii) by legislators or federal/state executiveofficials in course of official duties; (iii) between spouses; or (iv) in required publications
  • Qualified Privilege: (i) Affects important public interest or (ii) is in the interest of defendant or a third party. Privilege can be lost if abused.
142
Q

Intrusion Upon Seclusion

A

D’s intentional intrusion into P’s private affairs which are highly offensive to a reasonable person

143
Q

False Light

A
  • Publication of facts about P or attributing views/actions to P that place him in false light objectionable to a reasonable person under circumstances
  • Truth not always a defense
  • In matters of public interest, P must show malice
144
Q

Misappropriation

A
  • Unauthorized use of P’s name, likeness, or identity for D’s advantage (commercial or otherwise)
  • P must prove lack of consent and injury
145
Q

Public Disclosure of Private Facts

A
  • Public disclosure of private facts (even if true) about P that would be highly offensive to a reasonable person and is not of legitimate concern to the public
  • Disfavored tort: In tension with First Amendment
146
Q

Invasion of Privacy: Damages

A
  • Proof of emotional/mental distress is enough
  • Special damages not required
147
Q

Invasion of Privacy: Defenses

A
  • Absolute/qualified privilege: applicable to false light/public disclosure
  • Consent, but any mistake re: consent negates defense
  • Truth is not a defense
148
Q

Intentional Misrepresentation

A
  1. False representation of material fact, opinion, intention, or law;
  2. With knowledge or reckless disregard of truth;
  3. With intent to induce P to act or refrain in reliance on misrepresentation; and
  4. Causing P’s actual, justifiable reliance

Damages: Actual economic loss/consequential damages and punitive damages

149
Q

Negligent Misrepresentation

A

(1) D provides false information to P as a result of D’s negligence in the course of D’s business or profession, and
(2) P justifiably relies on the information and incurs pecuniary damages
* Information must be relied on in transaction that D intends to influence or know recipient intends to, or substantially similar transaction

150
Q

Intentional Interference with Contract

A
  1. D knew of valid K between P and 3P;
  2. D intentionally interfered with K in way that substantially exceeds fair competition and free expression, resulting in a breach and
  3. Breach caused damages to P

Defenses:
* (i) Justified if motivated by health, safety or morals
* (ii) K is terminable at will
* D is business competitor

151
Q

Interference with Prospective Economic Advantage

A
  • No K required
  • More egregious conduct required for liability, should be independently tortious; violates federal/state law
  • Business competitor will not be liable for encouraging switching business
152
Q

Theft of Trade Secrets

A
  1. P owns valid trade secret (provides a business advantage);
  2. That is not generally known;
  3. P took reasonable precautions to protect; and
  4. D took secret by improper means
153
Q

Trade Libel

A
  • Malicious publication of derogatory statement relating to P’s title to business property/quality of products, and interference to business relationships
  • Damages: Special damages required and mental suffering damages unavailable
  • Defenses: Truth and fair competition
154
Q

Slander of Title

A
  • Publication of false statement derogatory to P’s title to real property
  • Malice: Required
  • Damages: Special damages as a result of diminished value in eyes of third parties
155
Q

Malicious Prosecution

A
  1. Intentional and malicious institution of legal proceeding for improper purpose without probable cause
  2. Action dismissed in favor of person against whom it was brought

Note: Judges/prosecutors have absolute immunity from liability

156
Q

Abuse of Process

A
  • Use of legal process against P in a wrongful manner to accomplish purpose other than that for which process was intended
  • Willful act: Required
  • Damages: Must prove

Bar Exam: Outline (15 decks)

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