Term
| Malicious Prosecution - Elements |
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Definition
1) Plaintiff institutes civil proceedings against a defendant
2) proceedings instuted for improper purpose
3) resolved in D's favor
4) proceedings instituted w/out p.c. or reasonable basis
5) damages |
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Term
| Abuse of Process - Elements |
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Definition
1) Claim was brought for an improper purpose
2) sufficient act or threat used to accomplish such purpose
3)damages |
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Term
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Definition
1) Defamatory statement
2) Of or concerning the plaintiff
3) Publication
4) Damages - Unless per se defamation
5) Lack of any privilege |
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Term
| Products Liability - Elements |
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Definition
(1) Manufacturer or Dealer
(2) Unreasonably Dangerous product or unreasonably dangerous that could have been made safer w/ adequate warnings
(3) Foreseeable user of the product
(4) Foreseeable use
(5) Causation
(6) Damages |
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Term
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Definition
Duty
Standard of Care - Reas prud person
Breach
Actual Cause - But for
Legal Prox Cause - Foreseeable
Harm/Damages |
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Term
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Definition
1) Inherently dangerous activity
2) Uncommon in geo area
3) Cannot be made safe with the exercise of reasonable care/precautions
4) Risk outweighs social utility |
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Term
Landowners
Duty to known trespassers |
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Definition
| Duty to warn of artificial conditions that present a serious risk of bodily harm |
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Term
Landowners
Attractive nuisance |
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Definition
Exists if:
1) Foreseeable to have children trespassers
2) Child is unlikely to appreciate danger
3) Cost to make condition safe outweighs risk of harm |
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Term
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Definition
| But for the type of harm, P would not have been injured |
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Term
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Definition
Foreseeable plantiff
Zone of danger (Cardozo) or all living persons (Andrews) |
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Term
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Definition
| P aware of risk involved in activity and acted anyway |
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Term
| Products Liability - 5 causes of action |
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Definition
1) Intentional tort (normally battery)
2) Strict Liability - design or manufac
3) Negligence
4) Breach of Warranties
5) Misrepresentation |
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Term
| Products Liability - Strict |
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Definition
1) Proper D (manufacturer or distrib)
2) Proper Plaintiff (intended user or foreseeable)
3) Product left plant in defective condition
4) defective product
5) causation
6) damages |
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Term
| Products Liability - Strict |
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Definition
1) Proper D (manufacturer or distrib)
2) Proper Plaintiff (intended user or foreseeable)
3) Product left plant in defective condition
4) defective product
5) causation
6) damages |
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Term
Design defect
-Theories as to dangerously defective |
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Definition
Consumer Expectations:
More dangerous than avg consumer would reas expect
Feasible alternatives:
Compares design of product w/ other reas alternatives.
Test balances availability of alternatives and their cost against the risk to users and the value of lives saved. |
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Term
| Failure to warn - Strict Liability |
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Definition
Product is defective if the defendant, knowing of a defect or potential harm, fails to adequately warn the consumer.
Warning must tell the consumer of the risk
How risk occurs
How to prevent such a risk
Any other mitigating factors to avoid further injury |
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Term
Breach of Duty
- To whom is a duty owed in std. negligence action |
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Definition
Anyone within the zone of danger (Cardozo)
Anyone within the world (Andrews) |
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Term
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Definition
D violates a law
P is the type of person that the law is designed to protect |
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Term
Negligence - Damages
(Wrongful death type scenario) |
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Definition
1) Future earnings (use actuary table)
2) Particular earnings (must be fairly definite)
3) Loss of consortium
4) Punitive (only if gross negligence/recklessness) |
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Term
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Definition
Interference with health, safety, or well-being of the public-at large.
An individual landowner must suffer an injury unique from public at large in order to sue. |
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Term
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Definition
| D's activity creates substantial and unreasonable interference with plaintiff's use and enjoyment of his land. |
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Term
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Definition
Intent by actor to confine P to a bounded area
P had no reasonable means of leaving the bounded area
Intent not necc if victim suffered harm
DEFENSE: Shopkeeper's Privilege |
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Term
False Imprisonment
Defense |
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Definition
Shopkeeper's Privilege
Storekeeper or employee permitted to detain an individual if reasonable suspicion of theft.
Suspicion and length of detention must be reasonable. Usually not over 30 mins. |
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Term
Negligence Duty
Duty owed to Licensee |
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Definition
Licensee invited onto premises as invited guest.
Must warn of: unreeasonably dangerous conditions; hidden but discovered dangers; artificial and natural conditions |
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Term
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Definition
| Business invitees are invited onto premises for benefit of landowner; all known conditions and owner must make reasonable inspection for unreasonably dangerous conditions that exist upon land. |
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Term
Products Liability
Negligence Action |
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Definition
Duty
Breach of Duty
Causation
Damages
Std. is: Balance utility of the product
against risk of harm to P
Cost to D of eliminating the risk |
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Term
| Products Liability - Battery |
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Definition
| Dealer/distributor sells a defective productive KNOWING it might cause injury. |
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Term
Defamation
- Statement of Opinion |
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Definition
| Statement of opinion is ACTIONABLE for defamation if a reasonable person (reader or listener) would believe the publisher has a factual basis for such opinion. |
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Term
Different Standards for Defamation
- public figure
- Public concern
- private individual |
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Definition
Public figure: Publisher must have acted with either malice or recklessness
Public Concern: Must show Falsity and Fault on the part of the tortfeasor.
Private individual/public concern: Must show negligence
Private individual/private concern: Even good faith publication of defamatory statement is actionable. (I guess this must still be injurious to reputation). |
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Term
| Defamation - Special damages |
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Definition
Actual economic damages
Must be shown in a defamation case under theory for Slander (spoken). Not necc for slander per se or libel. |
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Term
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Definition
Per se defamation for:
- Person's ability to do his job
- imputing inchastity to women
- accusing someone of moral turpitude
- Imputing that a person carries a loathsome disease |
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Term
Defamation
- Qualified Privilege |
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Definition
Available when there is a SOCIALLY useful context for the speech at issue:
Will be privileged if:
1) Speaker has good faith belief in the truth of the statements
2) Statements are relevant to and within the scope of the useful purpose for the speech |
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Term
Defamation
- Absolute privilege |
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Definition
Available as a defense when:
1) Statements made by one spouse to another
2) Statements made by gov't officials in the course of their duties |
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Term
Invasion of Privacy
4 causes of action |
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Definition
Misappropriation - Requires P to show that D used P's name or likeness for commercial advantage. Newsworthiness is a defense
Intrusion- Requires P to show that D invaded space within which P had a reas expectation of privacy
False Light - P must show that D attributed to P actions she did not take, views she did not hold, or comments she did not make
Disclosure of Private Facts- Requires P to demonstrate that D revealed private facts. |
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Term
Defamation
1st amendment defense |
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Definition
1) Publication by a news organization
2) Info can be illegally obtained, broadcaster can even be aware of illegalilty
3) Broadcaster must NOT be a party to illegal acts
4) Public Figure / Matter of Public Concern
5) Info is truthful |
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