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Proximate Cause
Legal Cause, deals with limitations of liability for unforeseeable/unusual consequences
Negligence
Breach of duty which causes damages
Professionals
Required to possess the knowledge or skill of a good standing member of the profession
Negligent Infliction of Emotional Distress (NIED)
(1) P in zone of danger and (2) must suffer physical symptoms of distress
Vicarious Liability - Parent for child
not liable for forts of child unless acting as agent of parent
Standard of Care - common carriers and innkeepers
high degree of care, liable for slight negligence, P must be guest
Products Liability - Express warranty
an affirmation or promise concerning goods that is not met
Bystander Negligent Infliction of Emotional Distress
(1) P and injured are closely related (2) P was present at scene of injury and (3) P personally witnessed event
Vicarious Liability - Bailor for Bailee
generally not liable
Duties of Bailor
must inform bailee of dangerous defects, if for hire then must notify of defects which bailor is aware
Wrongful Prosecution
initiating a criminal proceeding against P w/o PC for an improper purpose which causes damages
Products Liability - Intent Theory
liability imposed of D intended the consequences or know they were substantially certain to occur
Negligent Misrepresentation
misrepresentation in a business capacity which breaches a professional duty that the P relied on that caused damages
Standard of Care - automobile driver to gues
ordinary care
Nuisance - Injunctive Relief
will be rewarded if legal remedy is inadequate or unavailable
Scope of Foreseeable Risk
proximate cause is limited only to foreseeable risks. not liable for unforeseeable harmful results
Actual Cause
causation in fact to injury.1. But-For – injury would not have occurred but for the act of X, applies with multiple acts2. Joint Causes – several causes bring injury but only 1 alone is enough to cause injury3. Alternative Causes – 2 simultaneous acts and any 1 alone is enough to cause, burden shifts to D to say it wasn’t him
Duties owed by bailee
a. Benefit of bailor – low standard of care (person giving chattel)b. Benefit for bailee – high standard of care (person receiving chattel)c. Mutual benefit – ordinary standard of care
Comparative Neglience
not a complete bar to recovery
Wild Animals Strict Liability
strict liability
Assault
intentionally causing reasonable fear of imminent harm or incomplete battery
Privilege
invasion of land to arrest 3rd party
Personal injury Damages
compensation for past, present, and prospective damages, economic & noneconomic
Negligence Per Se
Statutory Standards of Care – imposed by the law if (1) P is within the protected class and (2) the statute was designed to prevent the type of harm suffered by P, creates presumptive breach of duty. Excuse – may be excused if compliance with statute would cause more harm than violation
Indemnity
shifting the entire loss among tortfeasors. Available by (1) contract (2) vicarious liability situations (3) strict products liability (4) unknown degree of fault
Duty
Owed to all foreseeable Ps to conform to a specific standard of conduct
Duty to Licensees
enter for benefit of owner. (1) Duty to warn/make safe and (2) exercise reasonable care in conduct of operations
Assumptive of Risk
P may be denied recovery if P knew the risk and proceeded in face of the risk
Dramshop Acts
imposes liability based on ordinary negligence principles, also creates cause of action for 3rd person injured by intoxicated vendee
Proving a Defect - Scientifically Unknowable Risks
D is not held liable is dangers are not foreseeable at time of marketing
Vicarious Liability - Frolic and detour
minor deviation is still under scope of employment, if deviate is substantial then not liable
Breach - Custom or Usage
may be used to establish standard but does not control if negligent
Proving a Defect - Design Defect
D could have made the product safer w/o impact on price
Damages
not presumed and nominal damages are not available
Duties to People off Premises
no duty for natural conditions, only artificial if unreasonable dangerous
Bystander IIED
P is present during injury, P is closely related to injured person, D should have known that
Absolute Privilege
(1) remarks made during judicial processing, (2) legislators during proceedings, (3) federal executive in compelled broadcasts, and (4) between spouses
Shoplifting detention
may keep D if there is (1) reasonable belief to theft, (3) reasonable manner and nondeadly force, and (3) for a reasonable period of time for purpose of making an investigation
Discipline
parent or teacher may use reasonable force to discipline a child
Conversion
signification interference of possession of personal property
Last clear Chance Doctrine
person with last clear chance who fails to do so is negligent
Duties to Trespassers
no duty to undiscovered trespassers. If discovered duty to (1) warn/make safe, artificial conditions involving risk of death or bodily harm (2) reasonable care for active operations
Self Defense of Others
If intended target is allowed to use the D can use
Products Liability Theories
5 Theories: (1) Intent (2) Negligence (3) Strict (4) Warranties and (5) Representation
Intrusion upon Seclusion & Disclosure
prying into business that is highly offense to a reasonable person
Manufacturing Defects
comes from manufacturing more dangerous than if properly made
Proving a Defect - Gov. Safety Standards
noncompliance with gov. standard shows product is defective, compliance is not conclusive
Defense to Defamation: Truth
Truth
Duty to Invitees
land held open to public. Duty to (1) warn/make safe, (2) exercise reasonable care in operation, and (3) reasonable inspection
Qualified Privilege
can be lost through abuse (1) if not within scope of privilege or (2) actual malice
Standard Of Care for Medical Specialist
National standard of Care, also duty to disclose risk of treatment
Punitive Damages
not available unless D’s actions are wanton & willful, reckless or w/malice
Intentional Torts
voluntary action by plaintiff
Partial comparative neglience
bars P’s recovery if P is more that 50% negligence
Battery
intentional offensive touch or strike against another
Vicarious Liability - Intentional Torts
generally not liable unless force or friction is generated by nature of the job or furthering business of employer
Vicarious Liability - Automobiles
- Family use doctrine – is liable for household members driving with express or implied permission2. Permissive use – liability imposed on anyone driving with owner’s consent3. Negligent Entrustment – owner liable for own negligence in entrusting car to driver
Self Defense
D reasonably believed he or she is about to be attacked and uses force to protect oneself
Vicarious Liability
employer is liable for torts under employee if within scope of employment
Slander
spoken defamation, special damages required unless about a. Conduct in one’s professionb. STDc. Chastityd. Crime of moral turpitude (common law crimes)
Public Nuisance
act that unreasonably interferes with the health, safety, or property rights of the community
Trespass to Chattel
interference of possession of personal property
Inadequate warnings
manufacturer fails to give correct warnings
Domestic Animals
no strict liability unless D has knowledge of propensity, not duty for trespassers but strict liability for injuries inflicted by watchdogs
Self Defense of Property
may be used to prevent tort against property or in hot pursuit to recapture, D must request to leave/desist
Public Nuisance - Recovery by private party
only allowed if unique damages not suffered to public at large
Consent
allowing the tort to occur, may be expressed or implied
Duty to Act
no duty to act1. Good Samaritan Statues – exempt medical staff for ordinary but not gross negligence2. Peril – duty to assist if one negligently or innocently placed in peril3. Special Relationship – common carriers, innkeepers, and shopkeepers, reasonable care
Intention Infliction of Emotional Distress (IIED)
intentional or reckless extreme or outrageous conduct causing severe emotional distress
Actual malice
(1) knowledge that the statement was false or (2) reckless disregard
Contribution
D who pays more than his share under joint and several liability now has a claim to other liable parties for excess damages paid
Products Liability - Misrepresentation of fact
statement was material concerning quality of goods and seller intended to induce reliance
Products Liability - Strict Theory
(1) commercial supplier (2) produced/sold a defective product (3) that caused (4) damages
Intentional Interference with Business Relations
(1) contract exists (2) that D knew about (3) and intentionally interfered (4) which caused damages.
Duty to mitigate
P must take all reasonable steps to mitigate damages
Proving a Defect - Manufacturing Defect
P must show that product failed to be safe under ordinary circumstances
Pure Comparative Negligence
bars P’s recovery if negligence was more serious than defendant’s negligence
Products Liability - Breach of Warranty Theory
product fails to live up to standards and causes damages
Products Liability Negligence Theory
Commercial supplies were negligent in selling a defective product. Can be rebutted by cursory insoection
Extreme & Dangerous Activity
must create a foreseeable risk of serious harm when reasonable care is exercised and not a common activity
Release
release of 1 tortfeasor does not discharge others unless provided for
Collateral Source Rule
damages are not reduced by insurance
Proving a Defect - Unavoidably Unsafe Products
D not liable is danger is apparent by nature of product & no way to make safer
Design Defect
all products are the same but have dangerous propensities
Standard of Care bailment duties
bailee transfers possession of chattel but not title,
Nuisance
invasion of private property rights or public rights
Private Nuisance
substantial unreasonable interference with one’s use or enjoyment of land
Defamation of Public Concern
add (1) falsity of statement and (2) actual malice
Property Damages
reasonable cost of repair or fair market value at time of incident
Appropriation
using P’s image w/o consent for monetary gain
Trespass to Land
physical invasion of real property
Res Ipsa Loquitur
occurrence of event establishes a breach if (1) accident would not normally occur absent negligence and (2) negligence is attributed to D
Misrepresentation
making a false statement of material fact with for the intent of P to rely on statement which causes damages.
Warranty of Merchantability Theory
whether goods are of average quality and fit for ordinary purpose for which goods are used
Standard of Negligence
Objective. Reasonably Prudent Person
Rescuers
Are always foreseeable Ps
Libel
written defamation, general damages presumed
Satisfaction
recovery of full payment, only 1 allowed
Joint and Several Liability
2 or more negligent acts combined to cause an indivisible injury, each D is jointly and severally liable. If injury is divisible then each D is liable for their portion of injury
Vicarious Liability - Independent Contractor
not liable unless engaged in inherently dangerous activity or duty is nondelegable for public policy considerations
Necessity
may interfere with real or personal property when necessary to avoid threatened injury and threatened injury or substantially more serious than invasion. Public and private (actor must pay for an injury caused).
Contributory Negligence
attributing P’s action which bar recovery
Nonrecoverable Damages
cannot get back attorney’s fees or interest
False Light
(1) attributing highly offensive characteristics to P and publishing it or (2) publishing private info about P
Defamation
(1) defamatory language (2) about P that was (3) publicized to a 3rd person and (4) damaged P’s reputation
Defense to Defamation: Consent
complete defense
Duty of Lessor and Lesee
Lesee has duty to maintain, Lessor has duty to warn of existing defects
Warranty of Fitness for a Particular Purpose
seller knows purpose of what goods are used for and P relied on seller’s skill in selection
Standard of Care - Children
standard of a child of like age, education, intelligence, and experience. Subjective
Strict Liability
(1) absolute duty to make safe (2) the danger of the activity is the actual and proximate cause of P’s injury (3) damages.
Attractive Nuisance Doctrine
(1) owner knows of condition (2) owner knows kids are there (3) condition is likely to cause injury (4) expense of remedying situation is cheaper than risk
Supremacy Clause
Fed and State Law Conflict = federal ALWAYS wins
10th Amendment Police Power
ONLY states have this. Fed gov has NO police power
10th Amendment General Welfare Power
States can make laws for General welfare. Fed gov CANNOT do this
Commandeering
fed gov cannot require state to act.
Dormant Commerce Clause
state is passing law regulating a business, cannot discriminate against out of state business
Dormant Commerce Clause - On its Face Discrimination
SS applies, gov shows compelling interest
Incidental Discrimination
mid level scrutiny, must have and important gov interest and must not have an excessive burden on commerce
when can states discriminate against out of state business?
- when Congress lets them. 2. when state acts as a market participant AKA monopolizes industry
Full faith and credit
judgment on merits in one state are valid in another state
Original Jurisdiction
Congress may not enlarge or restrict the Original Jurisdiction of SCOTUS
Appellate Jurisdiction
Congress may enlarge or restrict
SCOTUS & Congress
Congress CANNOT tell SCOTUS what to do
Lower federal courts & Congress
Congress can create and direct new federal courts
What will stop case from going to federal court?
(1) Mootness(2) Ripeness(3) Standing(4) Independent and Adequate State Ground(5) Political Question/Justiciability
Federal Immunity
states CANNOT sue fed gov1. States CANNOT tax fed gov, but may tax people who work with fed gov2. States can tax private businesses3. Individuals cannot sue fed gov, except when fed gov consents via statute
State Immunity
fed gov and other states may sue individual state1. Fed gov CANNOT tax a state if a gov function2. Fed gov can tax a private business
11th Ammendment
citizens of one state cannot sue its own state or another statei. Gov official may be suedii. Municipality may be suediii. If statute allows citizens to sue, may sue
Interstate Commerce - Balancing Test
Burden on interstate commerce outweighed by legitimate state interest
State Action
Government must be the one doing the discrimination
13th Amendment
Allows suit against private individuals for racial discrimination
Privileges and Immunities Clause
Discrimination based on RESIDENCY
15th Amendment
Racial discrimination on basis of voting
Equal Protection
Discrimination based on classes of people
Strict scrutiny
Race, alienage, and national origin. Gov has burden to show necessary to achieve COMPELLING state interest
Intermediate Scrutiny
gender, and illegitimacy; gov has burden to show it is substantially related to an important gov interest
Rational Basis
everyone else; P has burden to show not rationally related to a LEGITIMATE gov interest
Procedural Due Process
no person shall be deprived of life, liberty, or property w/o due process of law
Procedural Due Process Rights
Notice and Hearing if gov tries to take away jobs, license, benefits, and public education
Substantive Due Process
liberty rights/freedoms of EVERYONE
Fundamental Right
a. Travel Interstateb. Votec. Privacy Rights – Strict Scrutinyvi. Raise Familyd. Free Speech
Privacy Rights - Fundamental
i. Contraceptionii. Abortion – cannot place undue burdeniii. Marriageiv. Procreationv. Education (Private)
Abortion
cannot place undue burden
Non-Fundamental Rights
Rational Basis, everything that isn’t rational basis
State Due Process
14th Amendment
Federal Due Process
5th Amendment
Taking
Gov can take private property for public use as long as just compensation
Just Compensation
fair market value
Public purpose
private person can take property for public purpose
i. Diminished value of property
Also a taking
Establishment Clause
separation of church and state
Lemon Test
(1) secular purpose (2) cannot advance or inhibit religion (3) shall be no excessive entanglement
Free Exercise Clause
(1) Gov must be neutral (2) cannot break law in name of religion (3) look for gov INTENT vs affects practice of religion
Speech
Fundamental Right cannot ban, but can regulate
Content Based Regulation
gov says NO = strict scrutiny applies
Content Neutral Regulation
regulating time, place, and manner, okay if (1) Significant OR IMPORTANT gov interest and (2) leave alternative means of communication
Public Forum
significant or important gov interest w/ alt means
nonpublic forum
ads, reasonable related to legitimate gov interest
Obscenity
– (1) object person applying LOCAL COMMUNITY STANDARDS appeals prurient issues of sex (2) work depicts sex in a patently offensive manner (3) work acts serious literally, artistic, political, or scientific value
Clear and Present Danger
not protected, fighting words, harsh actions, to incite violence
Commercial Speech
if reasonable fit to a substantial gov interest and narrowly tailored
False/Misleading advertisements
not protected
Prior Restraint
gag orders, injunctions, before speech is published, unprotected
Unfettered Discretion
gov official choosing one form of speech over another
Overbreadth and vagueness
statute cannot be overbroad
Bill of attainder
fed or state gove passes a law punishing a named individual or group
Ex post facto
retroactively making something criminal, unconstitutional
Contracts Clause
only when a STATE impairs the right to enter into contract
Offer
an outward manifestation to enter into a contract (1) Intent + (2) specific terms
Advertisements
not an offer, invitation to offer
Termination of Offer
(1) Death(2) Lapse of Time(3) Rejection(4) Counter Offer(5) Revocation
Indirect Reovcation
person receiving offer LEARNS another deal was made
Option Contract
additional consideration to have option contract to make irrevocable
Firm Offer
UCC K (1) between merchant (2) signed writing by merchant1. If no time states 3 months is MAX time valid
Unilateral Contract
a promise for an act1. Offer is Irrevocable when performance begins
Bilateral Contract
a promise for a promise – words enough for K
Acceptance
agree to offer
Mirror Image Rule
acceptance has to mirror offer, Common Law
Acceptance by Silence
effective if offeror know silence is okay
Acceptance by Performance
words or performance to accept
Mailbox Rule
Acceptance is effective when sentException – Rejection 1st, then Acceptance, 1st in time wins
UCC Acceptance
sale of goods1. Can accept even if there is difference
Consideration
bargained for exchange
Ways to be tested on Consideration
(1) Illusory Promise(2) Promise to give a gift(3) Past or Moral Consideration(4) Promise to Pay(5) Forbearance for Lawsuit(6) Promissory Estoppel(7) Accord and Satisfaction
Illusory Promise
not valid consideration
Promise to give a gift
invalid consideration
Past or moral consideration
not enforceable
Promise to Pay a Debt barred by SoL
Valid
Forbearance for Lawsuit
Valid
Promissory Estoppel
promise that induces on to rely to their detriment
Accord and Satisfaction
occurs when there is a debt. Settlement – cannot come after rest of ita. Part payment even though paid in full, still owe remainingb. Debt, can’t pay, settlement, can’t go after remainingc. Not sure if there is debt, make payment, amount is final
Defenses to Enforceability
(1) Age(2) Mental Illness(3) Duress(4) Undue Influence(5) Unconscionability(6) Illegal(7) Mistake(8) Misrepresentation(9) Non-Compete Clause(10) Statute of Frauds
Age
Voidable at option of Minor
Mental Illness
Void
Duress
Wrongful Threat
Undue Influence
Unfair Bargaining Position
Unconscionability
result of enforcing K is unfair
Illegal Contract
not enforceable
Unilateral Mistake
1 party is mistaken about term in K, not a defense, UNLESS (1) other party knew it was a mistake, OR (2) clerical error
Mutual Mistake
defense, no meeting of the minds. Remedy? Rescission