Term
| Basic Intentional torts elements |
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Definition
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Term
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Definition
Harmful, offensive contact
With person of another
Causation
Damages (no proof of injury req'd) |
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Term
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Definition
intentional
overt act - words not enough, but words + conduct
reasonable apprension of immenant battery
Damages (no proof of actual injury) |
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Term
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Definition
intentional
confine/restrain another person
physical force, barrier, direct/indirect threat
invalid legal authority
no reasonable means of escape
to bounded area
damages |
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Term
| When plaintiff unaware of confinement |
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Definition
| If unaware of confinement, not problem unless harm results. |
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Term
| Intentional Infliction of Emotional Distress |
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Definition
-Intentionally or recklessly - no transferred intent, personal tort
-Extreme or outrageous conduct
-Causes severe emotional distress |
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Term
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Definition
conduct that is intolerable or exceeds bounds of decency
often continous pattern of conduct
heightened sensitivity taken into account |
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Term
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Definition
- family member, in presense of, and D aware of presense
-bystander distressed, if results in injury
-if bystander, not relative = actual physical injury required
-actual emotional distress must be shown |
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Term
| Elements of Trespass against land |
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Definition
Intentional Act - intend to engage in the act whicih causes trespass
physically invade land - entry by object enough
-exceeded consent
-nuisance is different - physical invation
Standing - P posesses rightfully land
Damages - actual damages does not need to be proven |
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Term
| Elements of Trespass against chattle |
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Definition
-Intentionally - engaging in the act that causes inteference
-Interferes with right to posession - intermeddle, completely disposess,
Damages - Actual damages, loss of use
- intermeddle: actual damages |
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Term
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Definition
Intentionally - intend to commit an act that caused interference
- accidental damage when had permission - not conversion
Act of posession or Interference - act of dominion or control
- wrongfully acquire chattel
- Change, damage, destroys chattel
- refusal to return after demand can cause conversion
Deprives P use of chattel (factors)
- Duration and extent of interference
- good faith, expense and inconvenience to P, extent of damages
Damages
- full value of chattel at time of conversion
- or replevin
Damages - value of chattle at time of conversion |
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Term
| Types of defenses to intentional torts |
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Definition
-Consent
(express, implied by law, implied by custom)
-Self Defense (Defense of others, defense of property)
-Privilege
-Parental Dicipline
-Necessity
-Arrest |
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Term
| Defense of property as defense |
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Definition
-deadly force not allowed
-If person has privilege, cannot use force |
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Term
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Definition
Recapture of chattles- reasonable force can be used
Loan - must be peaceful
Land - force cannot be usen at all |
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Term
| Parental Discipline as defense |
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Definition
-May use reasonable force or confinement
-Schools have the same standard |
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Term
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Definition
| to prevent injury more serious than invasion itself |
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Term
| Private and Public necessities |
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Definition
Private Necessity - qualified privilege. actual damages needed
Public necessity - large number of people. absolute defense if damages reasonable |
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Term
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Definition
- must reasonably believe felony took place, and felnoy must have taken place
-public officers; okay if felnoy didnt take place
-misdemeanor: breach of peace must have occurred |
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Term
| How D can subject himself to liability |
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Definition
| special relationsihp, enhancement of risk through carelessness, voluntarily assuming duty |
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Term
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Definition
Maj: Any reasonably foreseeable plaintiff
Min: Any member of public at large, as long as conduct is unreasonable
Do not have to control 3rd parties unless special relationship
Rescuer = foreseeable |
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Term
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Definition
Reasonably prudent person. physical characteristics and disabilities accounted for
customary practice in community - engaged by substantial minority in calling or business |
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Term
| Landowner level of care - invitee, licensee, lessor, recreational |
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Definition
Licensee: known defects unlikely to be discovered by licensee
Invitee: reasonable care for all activities (hidden or not)
Lessor of land: common areas, known defects T unlikely to discover
Recreational space: willful or malicious failure to warn |
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Term
| Landowner level of care to adjacent occupants |
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Definition
resonable care for artificial conditinos
no responsibility for natural conditions
trees in urban areas |
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Term
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Definition
| disclose defects known, and defects unlikely to be discovered by buyer given time |
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Term
| Negligence per se elements |
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Definition
Interest intended to be protected
Harm materialized was one to be protected
Harm arose in way legislature intended |
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Term
| res ipsa loquitor elements |
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Definition
lack of access to evidence needs to be shown:
cannot happen w/o negligence, exclusive control, did not contribute to harm |
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Term
| defense to res ipsa loquitor |
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Definition
| showing evidence of reasonable care |
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Term
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Definition
| but for D's actions, P would not have been harmed |
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Term
| define Proximate/legal cause |
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Definition
| close connection in time and space to cause and injury |
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Term
| unforeseeable intervening force and proximate/legal cause |
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Definition
| negates proximate cause, if harm was also unforeseeable |
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Term
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Definition
Victim at risk of serious harm / death
Reasonable person would suffer emotional distress
Did victim subjectively experience distress
OR V was direct object in distress |
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Term
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Definition
Witnesses harm to other and suffers harm
(zone of danger test)
Physical injury resulted |
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Term
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Definition
Close relationship, D was also at risk, suffered severe emotional distress
Emerging trend: Present, sensory observation of event, close relationship |
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Term
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Definition
| estate Can recover as if D lived. Wages, medical expenses |
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Term
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Definition
Standing: intestate rules heirs
Picuniary and non pecuniary damages avail |
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Term
| What sort of actions cannot be brought under wrongful death and survival statutes? |
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Definition
double recovery under both statutes, except non-picuniary
personal type torts |
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Term
| Interference with family relationsihps |
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Definition
| sue for loss of consortium, services |
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Term
| Factors for vicarious liability |
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Definition
time and space of employment
was EE hired to perform activity
was EE serving E's purposes |
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Term
| What can cause Employer to have direct liability for employee's actions |
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Definition
| neglgent hiring, failure to screen, etc. |
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Term
| Automobile liability (letting others use) |
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Definition
Family member: if used with permission, liable
Permissive use: liable whwnever used with permission
Negligent entrustment: whenever known or should have known operator would haev difficulties |
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Term
| Parent liability to children |
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Definition
-if acting as agent
-dangerous instrumentality (lacking judgement and control)
-child's known dangerous tendencies |
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Term
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Definition
| vendor strictly liable for selling liquor to person who gets drunk and injures third party |
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Term
| When can victim sue municipality |
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Definition
City promised service
city knew not providing service = danger
direct contact with city and victim
victim relied on promise |
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Term
| When municipalities are liable for actions |
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Definition
Proprietary actions (stuff typically done by private company)
Governmental actions: immune. |
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Term
| When are D's Joint and severally liable? |
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Definition
-common plan or prior agreement
-OR causes indivisible injury to P |
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Term
| Last clear chance doctrine |
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Definition
For contributory negligence: when V makes mistake and himself in peril, whoever had last clr chance to avoid incident is liable
Helpless peril: V makes mistake, D knew or should have known of V's helpless peril
Oblivious peril: V made mistake, and V unaware of danger. only if D knew of V's obv. peril |
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Term
| Types of comparative fault |
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Definition
| Pure comparative fault, and modified comparative fault |
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Term
| Implied assumption of risk |
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Definition
Knowingly and voluntarily assumed risk
complete or partial bar to recovery depending on comparative fault or not jr |
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Term
| Strict liability elements |
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Definition
| Duty, Breach, Causation (actual/proximate), damages |
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Term
| When does strict liability attach? |
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Definition
| DAD (Dangerous activities, Animals, Defective Products) |
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Term
| Dangerous Activity definition |
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Definition
| Inherently dangerous. Cannot make activity safe through precautions |
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Term
| Animal liability to trespasser |
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Definition
| no SL unless vicious watchdog |
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Term
| Animal liability to Licensee and invitee |
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Definition
| wild or abnormally dangerous animals, if not exceed scope of invitation |
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Term
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Definition
| liable for foreseeable harm |
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Term
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Definition
| SL for any harm despite precautions, as long as V did not do anything to bring on harm, and injury was characteristic of the wild propensity |
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Term
| domestic animal liability |
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Definition
| no SL unless owner knew or should have known of dangerous propensities |
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Term
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Definition
NO contributory neg
Comparative neg
assumption of risk
Statutory privelege (essential public service) |
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Term
| Negligent Product Liability |
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Definition
Man/Dist/Ret duty to foreseeable plaintiff - purch/users/bystander
failed care in design/man/insp/warning
causation - but for/proximate
damages - injury/property (no economic) |
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Term
| Strict product liability elements |
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Definition
Ret/dist/manu
failure to warn, defect design/manu
-Product manu/design defec
-defect existed leaving control
-defect caused injury
-used reasonably foreseeable way |
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Term
| Strict product liability standards |
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Definition
consumer expectation - dangerous beyond ord. consumer expectation?
Risk Utility - was there available alternative thats economically feasible? |
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Term
| Strict Product liability - failure to warn |
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Definition
does warning put consumer on notice?
mitigate risks not readily recognizable by foreseeable user. |
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Term
| SPL and res ipsa loquitor |
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Definition
| if product destroyed, courts will use this |
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Term
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Definition
injury to person and property
no economic losses |
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Term
| Who are subject to Implied Warranties |
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Definition
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Term
| define Implied warranty of merchantability |
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Definition
| Product is fit for ordinary purpose for which is sold |
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Term
| Implied warranty of fitness |
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Definition
| product is fit for particular purpose if seller knows of the purpose |
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Term
| Implied warranties elements |
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Definition
-no fault needed
-breach of warranty
-damages: injury to property, person, and economic loss |
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Term
| defense to all product liability: |
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Definition
| assumption of risk, comparative fault, product misuse/unforeseen use |
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Term
| defenses to implied warranties |
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Definition
| disclaimer, and failure to provide notice of breach |
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Term
| define Express warranties |
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Definition
| express representation of fact |
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Term
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Definition
| D uses property in way substantially and unreasonably interferes P's use of theirr property (no negligence or intention needed) |
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Term
| Standing to sue for private nuisance |
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Definition
| anyone with posessory right over their property |
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Term
| Define substantial interference and unreasoanbleness for private nuisance |
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Definition
offensive, inconvenient, annoying to average member of community
unreasonable: harm outweighs any utility to D |
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Term
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Definition
| interference that affects right to all membmers of community |
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Term
| Standing to bring public nuisance suit |
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Definition
| only government can bring, unless P suffers unique harm |
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Term
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Definition
private: notice required. reasonable force to abate. liable for damage from unreasonable force
public: only government |
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Term
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Definition
| D uses property in way substantially and unreasonably interferes P's use of theirr property (no negligence or intention needed) |
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Term
| Standing to sue for private nuisance |
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Definition
| anyone with posessory right over their property |
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Term
| Define substantial interference and unreasoanbleness for private nuisance |
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Definition
offensive, inconvenient, annoying to average member of community
unreasonable: harm outweighs any utility to D |
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Term
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Definition
| interference that affects right to all membmers of community |
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Term
| Standing to bring public nuisance suit |
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Definition
| only government can bring, unless P suffers unique harm |
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Term
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Definition
private: notice required. reasonable force to abate. liable for damage from unreasonable force
public: only government |
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Term
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Definition
-use of defamatory language
-about plaintiff
-publication
-damages reputation |
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Term
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Definition
| Libel and Slander (permenant and non permenant) |
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Term
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Definition
| Relates to respect, goodwill, esteem of the P, or deters others from association |
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Term
| Defamation - can dead person be defamed? |
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Definition
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Term
| Defamation - about plaintiff |
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Definition
| reasonable person can understand that statement is referring to P. Does not have to refer to P if easy to discern who it is referring to |
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Term
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Definition
Intentinoally or negligently communicated to 3rd party
not liable if not D's fault it was communicated |
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Term
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Definition
CL: Truth must be proven
1. Public figure/limited public figure - D acted with actual malice (knowing/reckless)
2. Private Figure - negligence enough |
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Term
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Definition
| General damages (from damage to reputation) and special damages (loss of job, etc) |
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Term
| Defamation - Special damages and libel/slander |
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Definition
Libel: If extrinsic fact must be brought in, special damages must be proven.
Slander: must be proven, unless slander per se. |
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Term
| Defamation - Slander Per Se |
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Definition
| Crime, Profession/business/trade, Unchasity, Loathesome disease |
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Term
| Defamation - defenses and privilege |
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Definition
-Truth, consent, Privileges
-Privileges: judicial proceedings, spouses, legislative, media if unaltered |
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Term
| Invasion of privacy torts |
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Definition
IFLAP
-Intrusion
-False Light
-Appropriation
-Private Facts |
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Term
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Definition
-Used P's name/image
-for commercial benefit
-without consent |
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Term
| Does appropriation survive plaintiff? |
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Definition
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Term
| Intrusion (unreasonable intrusion unpon P's seclusion) elements |
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Definition
-physically or otherwise intrude's into P's private affairs
-objectionable to reasonable person
no publication requirement |
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Term
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Definition
-D made public
-facts about P
-subject P in false light
-objectionable to reasonable person |
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Term
| False light (placing) defense |
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Definition
| Truth defense. Matters of public + lack of malice |
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Term
| Private facts (public disclosure of) elements |
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Definition
-Public disclosure of private facts of P
-even if true
-emotional and mental damages sufficient |
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Term
| Defense to private facts tort |
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Definition
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Term
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Definition
Consent
Truth is not defense for IFLAP torts |
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Term
| Intentional Misrepresentation elements |
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Definition
-affirmative misstatement / omission of material fact
-Scienter (knowing/reckless)
-Intent
-Reliance reasonable
-actual damages |
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Term
| Negligent Misrepresentation elements |
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Definition
-neg. misrepresentation
-breach of duty
-causation
-justifiable reliance
-damages |
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Term
| Neg. Misrep. defenses and damages |
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Definition
All negligence defenses available
out of pocket damages
reliance costs |
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Term
| Intentional Inteference with Business Rel |
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Definition
-knew of contractual rel (or prospective econ. damage)
-intentionally acted in a way to cause breach
-damages - actual, punitive, emotional |
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Term
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Definition
Statement directed business/product
-publicatino to 3rd party
-derogatory statement
-relates to business/product
-interferes or damages business |
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Term
| Malicious prosecution elements |
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Definition
-intentionally maliciously institute/cause to institute
-for improper purpose
-legal action w/o probable cause
-action dismissed in fav of V |
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Term
| Damages for malicious prosecution |
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Definition
| legal expenses, lost work, time, loss of reputation, emotional distress |
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Term
| Abuse of process elements |
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Definition
Misuse of power of court- using court to proceed against P in wrongful manner to accomplish purpose not intended
-Ill will or spite not required. |
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Term
| Damages for abuse of process |
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Definition
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