Term
| What are the elements of a battery? |
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Definition
| The D must intend to commit a harmful or offensive contact, and that contact must be with the P’s person |
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Term
| What are the elements of an assault? |
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Definition
| The intent to cause a reasonable apprehension in the P of immediate harmful or offensive contact to the P's person. |
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Term
| What are the elements of False Imprisonment? |
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Definition
| The D must commit an act of restraint and the P must be confined in a bounded area. |
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Term
| What are the elements of Intentional Infliction of Emotional/Mental Distress? |
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Definition
| The D must engage in outrageous conduct and P must suffer severe emotional distress. |
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Term
| What defines outrageous conduct? |
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Definition
The conduct must be such that it would cause a reasonable person to exclaim "Outrageous!" in response.
Some general factors that will persuade that the conduct was extreme and outrageous:
(1) there was a pattern of conduct, not just an isolated incident;
(2) the plaintiff was vulnerable and the defendant knew it;
(3) the defendant was in a position of power;
(4) racial epithets were used;
5) the defendant owed the plaintiff a fiduciary duty.[7][8]
(6) The P is a member of a fragile class of persons. Think pick on somebody your own size
I.e. Little children, elderly, pregant women |
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Term
| What are the elements to Trespass to Land? |
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Definition
| The D must intentionally commit an act of physical invasion and that act must interfere with P’s exclusive possession of land. |
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Term
| What are the elements of Tresspass to Chattels and Conversion? |
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Definition
Chattels
1) the lack of the plaintiff's consent to the trespass,
2) interference or intermeddling with possessory interest, and
3) the intentionality of the defendant's actions. Actual damage is not necessarily a required element of a trespass to chattels claim.
Conversion
- the plaintiff has clear legal ownership or right to possession of the property at the time of the conversion;
- the defendant's conversion by a wrongful act or disposition of plaintiff's property rights;
- there are damages resulting from the conversion.[3][4][5][6]
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Term
| What are the 3 requirements for inter vivos gifts? |
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Definition
(1) There has to be donative intent. Donor means it to be a gift
o(2) Delivery
o(3) There has to be an acceptance by the donee. Silence is considered acceptance. |
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Term
| What is a Gift causa mortis? And what elements are required in order for the gift to be sastisfied? |
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Definition
A gift given in contemplation of death.
(1) There is an imminent risk of death that is likely to occur.
(2) And the donor then actually dies. |
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Term
| What is The defense of Necessity? |
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Definition
It is only a defense to the three property torts. Tresspass to land, trespass to chattels or conversion.
2kinds of necessity.
1.Public necessity-Arises when a D commits a property tort in an emergency to protect the community as a whole or a significant group of people.
I.e. Shooting a ravenous dog that is attacking children.
2.Private necessity-D commits a property tort in an emergency to protect a self-interest. A limited defense that has 3 interconnected consequences.
a.(1) In private necessity consequences the D remains liable for compensatory damages.
b.(2) The D is not liable in a private necessity case for nominal or punitive damages.
c.(3) As long as the emergency continues the D in a private necessity case the D has a right to remain on P’s property in a position of safety. |
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Term
| What are the elements of defamation? |
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Definition
| The D published a defamatory statement that specifically identifies and injures the P. |
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Term
| What are the 5 defamatory statements that fall under slander? |
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Definition
1. A statement related to the person’s business or profession
2. A statement that the P committed a crime of moral turpitude
3. A statement imputing unchastity to a woman. Note: Chastity is virginity.
4. A statement that the P suffers from a loathsome disease: leprosy and venereal disease
5. Ny Only: Calling someone homosexual
You have to prove economic harm from the defamatory statements to complete a valid claim. |
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Term
| What are the Affirmative Defenses to Defamation? |
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Definition
1. Consent
2. Truth
3. Privileges
4. When the subject matter is matter of public concern |
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Term
| What is the NY Distinction for Self-Defense when the Aggressor iniatiates Deadly force? |
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Definition
| In NY You cannot use deadly force if there is a reasonable opportunity to escape. However, On the MBE deadly force is fair game when responding to deadly force. |
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Term
| What is the NY Distinction for slander? |
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Definition
| Calling someone a homosexual qualifies as slander per se |
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Term
| In which instances is a D absolutely privileged from a defamation suit? |
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Definition
The following are Absolute privileges:
i. Statements made by spouses communicating with each other.
ii. Officers of the government. Members of the judicial branch. This includes:
a. Lawyers
b. Witnesses
iii. Members of the media
a.Qualified Privileges-Arises in any situation where there is a social interest that encourages candor.
i. I.e. Letters of recommendation. Ppl that write bad letters of recommendation cannot be sued for defamation.
ii. Speaking to the police
iii.Truth-Must have a reasonable basis for thinking that it’s true. Cannot expect to retain the privilege to use this situation to spread lies.
iv.Confine yourself to matters topically relevant to the purpose of the privilege. If you speak on collateral matters those matters are not privileged. |
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Term
| What does the P have to prove in a defamation suit? |
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Definition
That the D made an intentinoal false statement.
Public concern elements P has to prove: 1.The statement is false. Truth is presumed 2.The statement was made with fault/culpability. If the P is a public figure like a mayor the P must prove that the D knew his statement was a lie, or that the statement was a reckless disregard for the truth. The level of proof for a public figure P is intent or recklessness in a public concern case. If it’s a private figure then the level of proof is negligence. How can it be a matter of public concern with a private figure? If a regular person is a part of the CNN story. Athlete A bought the drugs from law grad LeMont Joyner. |
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Term
| What are the 4 mini torts within the invasion of privacy? |
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Definition
1. Appropriation (Ny only has appropriation)
2. Intrusion
3. False Light
4. Disclosure |
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Term
Invasion of Privacy
(1) Appropriation |
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Definition
To take something that doesn’t belong to you and appropriate it. The D uses P’s name or image for commercial advantage
o Newsworthiness exception to this tort.
o APPROPRIATION IS THE ONLY PRIVACY MINI TORT THAT IS RECOGNIZED IN NEW YORK THE NEXT THREE ARE ONLY ON THE MBE
NY Exceptions to Appropriation:
• Prior written Consent
• A photographer exhibithing his work unless continued after written notice of objection
• When someone sells the person’s image as a result of their ordinary course of business. |
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Term
Invasion of Privacy
(2) Intrusion |
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Definition
MBE Only
Invasion of P’s seclusion in a way that will be highly offensive to an average person.
Example: Someone places a secret camera in the D’s house.
oGot to be in a location where you have a reasonable expectation of privacy. |
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Term
Invasion of Privacy
(3) False Light |
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Definition
(MBE only)- Widespread dissemination of a major falsehood about P that would be highly offensive to the average person. Running all over town and telling lot’s of people a big lie about the P.
oDignitary damages: D feels badly, wounded inside so he gets different damages.
oNote: The falsehood can be nondefamatory. P runs over town saying D is Christian but D is really Jewish. |
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Term
Invasion of Privacy
(4) Disclosure |
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Definition
(MBE only)-Running all over town and telling lots of ppl confidential information about the P that would be highly offensive to the average person.
oP’s CPA posts P’s income tax returns all over town.
oThere is a newsworthy exception here |
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Term
| What are the Elements of Fraud? |
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Definition
| An intentional or recklessly made false statement with the intent to induce reliance. The statement is relied upon and economic damages resulted from the D’s misrepresentation of fact. |
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Term
| What is malicious prosecution? |
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Definition
| The D initiates a criminal/civil proceeding against the P without probable cause. |
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Term
| What are the elements to a Trade Secret? |
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Definition
A Valid Trade Secret contains 3 elements:
a. Information that provides a business advantage to the possessor
b. The information cannot be generally known
c. The owner must take reasonable means to keep it secret.
d. A taking of that secret by the D through improper means.
i.The traitorous insider
ii.The industrial spy who learns of the secret through criminal means. Theft, bribery etc. |
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Term
| What are the duties to an unborn child in a negligent claim? |
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Definition
NY Only: If a person negligently hurts a pregnant woman then the newborn baby has a cause of action against the negligent person.
If the baby dies the mother has a wrongful death claim but the baby’s estate has no claim.
If a baby is born with a defect because the Dr missed diagnosed. something then the doctor is on the hook for covering the cost of care for handling a child with defects. The argument is because the family would have gotten an abortion if the doctor didn’t mess up. |
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Term
| What are the Exceptions to the Reasonable Person Standard? |
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Definition
1. If a person has superior skill or knowledge. I.e. Racecar driver who could have avoided the pedestrian but chose not
2. Body of information-If a person lived somewhere for ten years and knows there’s a hard left turn due to poor visibility. They should know that. But a visitor cant.
3. Physicial characteristics of the actor. If the D is blind then the reasonable person is blind. If the D is very tall then the standard of care is a reasonable very tall person.
Note: Even if a person is mentally ill and has the intelligence of a 5-year old they are still held to the standard of a reasonable prudent person. |
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Term
| What is the Special Duty Standard for Children? |
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Definition
a.Children under the age of 5 hold a zero duty of care to everyone. They can do whatever they want.
b.Standard between 5-18: hold the care of a hypothetical child of similar age, intelligence, and experience acting under similar circumstances
i.If the child is engaged in an adult activity (this doesn’t mean sexual activities but things like hunting are adult activities to some ppl) ignore the special rule and litigate under reasonable person standard. |
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Term
| What is the Special Duty Standard for Professionals? |
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Definition
A professional can be All healthcare providers, lawyers, accountants, engineers, architects.
A professional is supposed to use the care of average members of the profession in similar communities.
a. The custom of the profession sets the standard of care. |
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Term
| What are the Special Duty Standards for Premises Liability? |
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Definition
Undiscovered Tresspasser-Zero duty of care is owed.
Discovered and anticipated tresspasser.-No duty of care for the anticpated tresspasser except the D can't put up man made death traps or spring guns.
Licensees-Only have a duty for concealed conditions and the condition must be one that the D knew about in advance.
Invitees-Only have a duty for concealed conditions and the condition must be one that the possessor either knew about or could have discovered through a reasonable inspection.
Child Tresspasser-reasonable prudence in regards to artificial conditions.
•Attractive nuisances-The thing on your land was so attractive that it invited the child to come in.
•This results in children being treated as invitees.
Whenever there is a duty to a premise liability case. The possessor can make safe the condition and that will satisfy your duty. Or the possessor can give a warning of the problem. |
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Term
| What is the Special Duty Standard for Negligence Per Se? |
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Definition
Applies when the P is a member of the class of persons that the statute is trying to protect and the P has to show that the accident is in the class of risks that the statute is trying to prevent.
Example of Failed Negligence per se:
A person smokes marijuana but accidently blows up her neighbor’s wall because the smoker left the gas leak on. The P wants to use the marijuana statute think class of person class of risk. Was the risk of using marijuana supposed to prevent ppl from blowing up walls Noooo. Was it to protect neighbors noooo. Negligence per se is not met. So P has to use the reasonably prudence standard |
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Term
| What is the near miss cases for NIED, Negligent Infliction of Emotional Distress? |
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Definition
The near miss cases- The negligent D did not cause a direct injury to the P but he almost did. You can recover if the D’s careless act put you in a zone of physical danger. Bystanders can only recover if they were a close family member of the direct victim and the bystander witnessed the near miss event.
NY Distinction: Bystanders can only recover if they too are in the zone of danger. Makes no sense but the bystander has to be within the zone of danger.
Relationship Cases- P and D are in a business relationship where it is foreseeable that negligence will cause distress.
Example: You get a HIV test and they tell you wrongly that you have HIV. This gives you emotional distress you can sue for NIED. |
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Term
| What is the Special Duty Standard for Duty to Rescue? |
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Definition
There is never a duty to rescue unless one of these two exceptions apply:
1.If D caused the peril
2. If there’s a pre-existing relationship between Δ and person in peril.
Types of relationships
a. Family relationship
b. Common carriers (passengers) and innkeepers (guests)
c. Landowner/invitee.
Note: If Δ has no duty to rescue and chooses to rescue nonetheless, a gratuitous rescuer will be held liable if he or she messes up. If you choose to rescue, you must rescue like a RPP would rescue.
NY Distinction: Good Samaritan statute. Insulates a gratutitous resucer for ordinary negligence. Gross negligence they can be liable. |
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Term
| What are the elements of Res Ipsa Loquitor? |
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Definition
| The P must show that the accident causing the injury is a type that would not normally occur unless someone was negligent, and the negligence is attributatble to the D. |
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Term
| 4 Situations they like to test on to the foreseeablility and fairness questions. In all four of these the D is liable. No matter how crazy. |
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Definition
1.Intervening medical malpractice. Ex. A man hits a pediestrian breaks his leg. Pedestrian goes to the hospital the doctor puts the cast on too tight and the leg is amputated. The driver is liable for the amputated leg. The doctor is also liable too.
2.Intervening rescue. Ex. A man hits a pedestrian breaks his leg. A good Samaritan drags the pedestrian off the street and dislocates his shoulder. The driver is liable for the pedestrian’s broken leg and dislocated shoulder
3. Protection or reaction forces. A man hits a pedestrian breaks his leg. A stampede is caused and someone steps on the man’s face and breaks his nose. The driver is liable for the broken leg and broken nose.
4.Subsequent Disease or accident. A man hits a pedestrian breaks his leg. Pedestrian gets crutches, the pedestrian sucks at using crutches falls and breaks his arm. The driver is liable for the leg and arm. |
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Term
| What is the Egg Shell Skull Principle? |
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Definition
| P recovers for injuries no matter how frail or weak the P is. |
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Term
| What is a Preliminary injunction? |
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Definition
Awarded early in the case to freeze the facts preserve the status of quo.
1. Got to show a likelihood on the success of the merits
2. Have to show irrerparable harm.
a. I.e. Someone has stolen trade secrets and threaten to disseminate them to competitiors |
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Term
| What is a Permanent Injunction? |
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Definition
-Awarded at the end of the litigation.
Can order the D: don't do X or go out and do Y |
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Term
| What is the test to determine if an Injunction should be granted? |
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Definition
(1) P must show that he has no adequate remedy at law.
oP has to convince the court that money is not adequate, a monetary judgement will not provide relief. Like if you’re dealing with an insolvent D.
(2) P must have a Protectable right that has been infringed upon in this tort suit
(3) The injunction must be enforceable.
(4) The balance of hardships tips in the Ps favor. The benefit to the P must outweight the harm the D will suffer. |
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Term
| What are the Special defenses a D can exert against injunctions? |
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Definition
1)Unclean hands. The P is guilty of offsetting misconduct. D can say you can’t injunct me for trade secrets because P stole his trade secrets from someone else.
2)Laches. Prejudicial delay. Because of P’s delay in bringing the injunction request the D has changed his position and relied detrimentally on the P’s acquiescence.
a.I.e. A neighbor cannot all of a sudden complain about loud noise when no previous complaints for loud noise were not made throught the last 3 years and the loud noise was constant throughout that time.
3)1st Amednment-Cannot get an injunction for a defeamatory statement that hasn’t been published yet. |
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Term
| What is the NY distinction to assumption of risk? |
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Definition
| Assumption of Risk has been abolished in NY. NY has Primary assumption of the risk and applies only to participants and spectators in formal recreational activities. This means that participants in sports do not owe each other a duty of care |
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Term
| How does Strict Liability apply to Domesticated animals? |
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Definition
D is Not strictly liable for her domesticated animals. I.e. Cows, horses, dogs.
Exception: D is strictly liable to licensees and invitees but not tresspassers if she has knowledge of a domesticated animal's viscious propensities. |
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Term
| How does Strict Liability apply to Wild animals? |
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Definition
| If you keep wild animals you are strictly liable to everyone, period (even tresspassers). We don’t care about your safety precautions no matter what they may be. What counts as a wild animal? Use your common sense. Don’t worry about fuzzy edges on the bar exam. |
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Term
| How does strict liability apply to abnormally dangerous activities- like Anthrax, Plutionium? And how do you determine if an activity is abnormally dangerous? |
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Definition
D is strictly liable to everyone, period (even tresspassers).
(1) whether the activity involves a high degree of risk or harm;
(2) the gravity of that risk;
(3) whether the risk can be eliminated by the exercise of reasonable care;
(4) whether the activity is a matter of common usage;
(5) whether the activity is appropriate to the place where it is carried out on and
(6) the value of the activity to the community. |
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Term
| What is Workers Compensation, and how does it work? |
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Definition
Workers comp is an insurance scheme the exclusive remedy of an employee injured on the job. The employer will be liable regardless of fault even if the employer is fault free. But the flipside is the employee cannot sue the employer in a lawsuit, ever.
•This means ppl on the job get a quicker judgment and more guaranteed money. But the possible outcome in damages is less because there is no pain and suffering claim.
•Can’t sue co-workers during interactions within the job. But can sue for actions outside the job. |
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Term
| Which jobs are not covered by workers comp? |
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Definition
Independent contractor not entitled to workers comp benefits.
Teachers not covered by workers comp
Part-time household employees not covered by workers comp I.e. nannys, maids
Members of the clergy not covered by workers comp |
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Term
| Which injuries are not covered under Workers Compensation? |
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Definition
1.Injured due to your own intoxication.
2.Cannot recover if you intentionally injure yourself.
3.Injured during a voluntarily athletic ability. Think the company softball game.
However, Horseplay can be covered on workers comp. It’s on a case by case basis. |
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Term
| What are the elements for a products liability claim based on negligence? |
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Definition
1. Duty. Note: privity of k is not required.
2. Breach. Breach can be shown by negligent conduct or D supplying a defective product.
3. Causation
4. Damages |
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Term
| What is Loss of consortium? |
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Definition
When the victim of a tort is a married person (It can also apply to parent-child too though). The uninjured spouse can get a separate cause of action against all of the D’s
• Loss of services
• Loss of society/companionship
• Loss of sex |
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Term
| What is Respondeat superior? |
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Definition
An employer is responsbile for the actions of an employee
1. Was the act committed within the time and space limits of the agency?
2. Was the offense incidental to, or of the same general nature as, the responsibilities the agent is authorized to perform?
3. Was the agent motivated to any degree to benefit the principal by committing the act?
NY Distinction:
Punitive damamges are not recoverable in an action against an employer for torts of the employee unless:
1. The employer was grossly negligent in hiring or allowing the employee to work.
2. The employee was entrusted with the general management of the business; or
3. The employer authorized or ratifed the tortious act |
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Term
| NY distinction for Parent of child Vicarious liability |
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Definition
Parents are liable up to a maximum of 5k for the willful and intentional property torts of their minor childern over the age of 10.
Also, there is a duty to protect people from foreseeable harm from an infant's child's crazy ways |
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Term
| What is a duty that Tavernkeepers have? |
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Definition
| The bar owner is responsible for bartenders who serve alcohol to already drunk ppl or underage ppl. |
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Term
| What is the Difference between wrongful birth and wrongful pregnancy? |
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Definition
| The failure to diagnose a congenital defect of the fetus, when the suit is brought by the parents, is known as “wrongful birth,” and the failure to properly perform a contraceptive procedure is known as “wrongful pregnancy.” |
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Term
| What are the elements of a products liability claim based on strict liability? |
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Definition
1. Duty. Remember privity is not required.
2. Production or sale of defective product-The defect must make the product dangerous beyond the expectation of the ordinary consumer.
3. Causation
4. Damages |
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