Term
| Intentional tort elements |
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Definition
| 1) voluntary act, 2) intent, 3) causation |
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Term
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Definition
-D acts with the purpose of causing consequence or
-D acts knowing consequence is substantially certain to occur
children and mentally incompetent persons can be held liable for intentional torts if they act with requisite intent
transferred intent
-person intends to commit an intentional tort against one person but instead commits: different intentional tort against same person, same intended tort against different person, different intentional tort against different person
-does not apply to intentional infliction of emotional distress |
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Term
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Definition
1) harmful or offensive conduct (person of ordinary sensibilities)
2) to person of another
3) causation
4) D's intent |
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Term
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Definition
act or threat by D intended to cause apprehension of imminent harm or offensive contact
1) conduct or other circumstances (mere words not enough)
2)P must have reasonable apprehension and awareness of D's act
3) imminent threat of harm
4) intent |
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Term
| Intentional infliction of emotional distress |
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Definition
1) intent or recklessness
2) extreme and outrageous conduct by D (beyond human decent, outrageous)
3) third-party liability (distresses members of V's immediate family with or without resulting bodily injury and they know they are there, or other bystander resulting in bodily injury)
4) causation (substantial-factor test)
5) damages: severe emotional distress; physical injury not required (beyond reasonable person's endurance or D knows of P's heightened sensitivity) |
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Term
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Definition
intent to confine or restraint another within boundaries (no reasonable means of safe escape); confinement; V must be conscious or harmed by it
method can be by barriers of force, threats, invalid use of legal authority, duress, failure to provide means of escape
time is immaterial except as to amount of damages
intent: purposeful act or knowing confinement is substantially certain to result
damages: actual damages necessary only if P was unaware of confinement
shopkeeper's privilege: reasonable detention if suspected shoplifter |
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Term
| Defenses to intentional torts involving personal injury - consent |
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Definition
express
-consent by mistake: is valid unless D caused mistake or took advantage of it
-consent by fraud: invalid if it goes to essential matter
-consent obtained under duress: invalid (but threats of economic duress will not make it invalid)
implied; implied consent if
-when a reasonable person would object and you are silent, or
-when you enter into circumstances when you are signaling indirectly your willingness to endure certain conduct
-injuries arising out of athletic competitions: consent is implied and only liable if conduct is reckless (conduct outside normal scope of sport)
invalid due to incapacity |
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Term
| Defenses to intentional torts involving personal injury - self-defense |
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Definition
reasonable force: force proportionate to anticipated harm; reasonable mistake does not invalidate defense
-FL: presumption of reasonable fear if defensive force was a response to unlawful or forcible entry, or threat of such entry, to one's dwelling or occupied vehicle; or attempt to forcibly remove another from dwelling or vehicle (exceptions)
deadly force: okay only if reasonable belief of serious bodily injury/death
no duty to retreat: past trend toward retreating unless in home; recently many statutes extend no retreat to any place D might legally be
-FL: no duty to retreat from place you have a right to be if you reasonably believe force will prevent death, bodily harm, or forcible felony
initial aggressor: generally not entitled to claim of self-defense
not liable for injuries to bystander: so long as injuries were accidental and actor was not negligent
in FL: self-defense is immunity from trial |
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Term
| Defenses to intentional torts involving personal injury - defense of others |
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Definition
-reasonable belief that other person may use force to defend herself; mistake as to third-party danger okay as long as belief is reasonable
-reasonable force: must be proportionate to anticipated harm |
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Term
| Defenses to intentional torts involving personal injury - defense of property |
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Definition
-reasonable force allowed to prevent tortious harm to property
-no deadly force allowed
-reasonable force to prevent intrusion on one's land: okay unless visitor acting under necessity
-reasonable force to reclaim personal property wrongfully taken |
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Term
| Defenses to intentional torts involving personal injury - parental discipline |
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Definition
-reasonable force/confinement okay: considering age of child and gravity of behavior
-educator has same privilege unless parent restricts privilege |
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Term
| Defenses to intentional torts involving personal injury - privilege of arrest |
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Definition
private citizens
-permitted to use force to make an arrest in the case of a felony IF the felony has actually been committed and the arresting party has reasonable grounds to suspect that person being arrested has committed the felony
-reasonable mistake as to identity is permissible, but not a mistake as to wether felony was actually committed
police
-must reasonably believe felony was committed and that person arrested committed it
-officer who makes a mistake as to whether a felony has been committed is not subject to tort liability
misdemeanor
-arrest may only be made if there is a breach of peace |
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Term
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Definition
tangible personal property
requires: intentional interference with P's right of possession by either dispossessing or using or intermeddling with P's chattel
only intent to do the act is necessary and transferred intent applies
mistake is not a defense
damages: actual amount or loss of use
remedy: compensation for diminished value or cost of repair |
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Term
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Definition
D intentionally commits an act depriving P of possession of his chattel or interfering with P's chattel in a manner so serious as to deprive P entirely of use of the chattel
-must only intend to commit the act that interferes
-damages: full value of property or replevin |
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Term
| Trespass to chattels v conversion |
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Definition
conversion: interference to such a degree that D should have to pay full value
courts consider:
-duration of interference
-D's intent to assert a right inconsistent with rightful possessor
-D's good faith
-expense or inconvenience to P
-extent of harm |
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Term
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Definition
intent to enter land or cause physical invasion
-not intent to trespass; transferred intent applies
-physical invasion of property
-no proof of actual damages required
necessity as a defense
-private: qualified privilege for limited number of people to enter land to protect own person/property from harm; not liable for trespass but responsible for actual damages
-public: unqualified/absolute privilege to avert imminent public disaster; not liable for damages if actions reasonable or reasonable belief that necessity existed, even if initial entry was not necessary |
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Term
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Definition
private: substantial and unreasonable interference with another's use or enjoyment of his land
-interference must be intentional, negligent, reckless or result of abnormally dangerous conduct
-substantial interference: offensive to average person in the community
-unreasonable interference: outweighs usefulness of action
-defenses: regulatory compliance (incomplete defense) and coming to the nuisance (does not entitle D to judgement as matter of law but jury may consider)
public: unreasonable interference with a right common to the general public; defenses in private nuisance generally applicable
remedies: damages, injunctive relief (balance equities)
abatement
-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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Term
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Definition
| failure to exercise the care a reasonable person would exercise; breach of duty to prevent foreseeable risk of harm to anyone in P's position; breach must be cause of P's injuries |
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Term
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Definition
1: duty (obligation to protect against unreasonable risk of injury)
2: breach (failure to meet that obligation)
3: causation (close causal connection between action and injury)
4: damages (loss suffered) |
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Term
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Definition
owed to all foreseeable persons who may be injured to D's failure to meet reasonable standard of care
-failure to act: generally no duty to act
-foreseeability of harm to another sufficient to create general duty to act with reasonable care
-foreseeability of harm to P: majority rule: D only liable to Ps within zone of foreseeable harm; minority rule: D can foresee harm to anyone resulting from his negligence and owes a duty to everyone harmed
specific foreseeable Ps
-rescuers: D liable for negligently putting rescuer/rescued party in danger; can apply comparative responsibility if rescuer's efforts are unreasonable; emergency professionals are barred from recovery if injury results from risk of job
-fetuses: duty of care owed if viable at time of injury
affirmative duty to act
-assumption of duty
-FL: Good Samaritan Act: protects from liability anyone, including professional health care providers, who provide emergency care without objection by injured party as long as they act as an ordinary reasonably prudent person
-placing another in peril
-by contract
-by authority
-by relationship (employer-employee, parent-child) |
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Term
| Negligence - standard of care |
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Definition
reasonably prudent person - objective standard
-physical (not mental) characteristics are considered in determining reasonableness
-voluntarily intoxicated person held to same standard as sober person
-child: reasonable child of similar age, intelligence and experience, but if child is engaged in adult activities, held to adult standard; children under 5 usually found incapable of negligent conduct
cost-benefit analysis: factors in determining negligence
-foreseeable likelihood that D's conduct would cause harm
-foreseeable severity of resulting harm
-D's burden in avoiding harm
custom
-evidence of custom is admissible but not conclusive in establishing proper standard of care
-professionals expected to show same skill, knowledge, and care as other practitioners in same community, but specialists can be held to higher standard
physicians
-many jurisdictions have changed to national standard
-failure to comply with informed consent requirement is medical negligence unless risk is commonly known, patient is unconscious, patient waives or is incompetent, or disclosure too harmful
-FL: no recovery allowed in an action brought by a patient without informed consent when reasonable individual would have general understanding of procedure, alternatives and risks given information provided or patient would reasonably have consented had he been so advised
-FL: rebuttable presumption of valid consent is raised when patient signs a writing in accordance with standard practice
standard of care for specific classes of Ds
-common carriers (planes, trains, buses): highest duty of care consistent with practical operation of business
-innkeepers: ordinary negligence
-automobile drivers: absent "guest statute" (minority: refrain from wanton and willful misconduct) ordinary care to guests as well as passengers (majority) |
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Term
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Definition
negligence per se
-criminal or regulatory statute imposes a specific duty for protection of others
-FL: violation of penal statute or ordinance treated as negligence per se, but violation of other rules (including traffic regulations and building codes) is just evidence of regular negligence
elements
-D neglects to perform duty
-D liable to anyone in class of people intended to be protected
-for harms of the type the statute was intended to protect against
-that were proximately caused by D's violation
defenses
-compliance impossible
-violation reasonable under circumstances |
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Term
| Negligence - standard of care for possessors of land |
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Definition
trespassers (traditional approach): refrain from willful, wanton, reckless, or intentional misconduct towards trespassers
-FL: absent gross negligence or intentional misconduct, not liable for damages to trespasser under influence of controlled substance
-FL: never liable for negligence that results in death or injury to person committing or attempting to commit a felony on the property
-discovered trespassers: warn about concealed, dangerous, artificial conditions; FL: must be detected at least 24 hours before accident for duty to discovered trespassers to attach
-undiscovered trespassers: generally no duty unless owner should reasonably know that trespassers are entering land, then same duty owed a licensee; FL: no duty to warn
-attractive nuisance: liable for injuries to trespassing children if artificial condition poses unreasonable risk of serious bodily injury, children cannot appreciate danger, burden of eliminating danger slight compared to risk of harm, and owner fails to exercise reasonable care to protect children; FL: child must be lured by condition that causes injury
trespassers (modern and third restatement)
-reasonable standard of care under all circumstances
-fact of trespass considered by jury in determining reasonable care
-not to act in intentional, willful or wanton manner causing physical harm is only duty owed to flagrant trespasser
invitee (traditional approach): invited to enter for purposes for which land is held open for business purposes
-reasonable care to inspect, discover dangerous conditions, and protect invitee from them
-duty does not extend beyond scope of invitation
licensee (traditional approach): enters land of another with permission or privilege (social guest, emergency personnel)
-correct or warn of concealed dangers that are known or should be obvious
-use reasonable care in conducting activities on land
-no duty to inspect
invitees and licensees (modern and restatement approach): reasonable care under all circumstances to all land entrants except trespassers
-FL: no distinction between commercial visitors and social guests, apply same standard of reasonable care
-FL: business owner has duty of reasonable care to maintain premises in reasonably safe condition for business invitees
landlord and tenants
-landlord liable for injuries occurring 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 hazard landlord agreed to repair
-tenant liable for injuries to third parties due to conditions within tenant's control
off-premises victims
-no duty for harm by natural condition (except trees in urban areas)
-duty to prevent unreasonable risk of harm caused by artificial condition |
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Term
| Negligence - breach or violation of duty of care |
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Definition
burden of proof: preponderance of the evidence
-greater probability than not that D failed to meet standard of care (as shown by custom/usage, statutory violation, or res ipsa loquitur)
-failure was proximate cause of injury and P suffered damages
res ipsa loquitur: circumstantial evidence; doesn't change standard of care
-P's harm ordinarily wouldn't have occurred in absence of D's negligence
-P's injury caused by an agent or instrumentality under D's exclusive control
-P not responsible for injury |
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Term
| Negligence - duty of care |
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Definition
cause in fact/actual cause: but for D's act/omission, injury would not have occurred; substantial-factor test for multiple causes/Ds; if unclear, burden shifts to multiple Ds to prove each did not cause P's harm
proximate cause/scope of liability
-P's who can recover: majority: P can recover if P was a foreseeable victim; minority: P's harm was within scope of liability of D's conduct
-risks for which there is recovery: majority: P can recover when D's acts are direct cause of P's harm; minority: particular risk is foreseeable
---direct cause: uninterrupted chain of events from D's act to P's injury; foreseeability of type of harm does not necessarily preclude liability
---unforeseeable risk: then no proximate cause and P cannot recover
-eggshell skull rule: extent of damages need not be foreseeable
-intervening cause: a cause of P's harm that occurs after D's tortious act
-superseding cause: breaks chain of proximate causation; D not liable; unforeseeable intervening cause is a superseding cause; negligent intervening acts are foreseeable (medical malpractice)
-FL: rebuttable presumption that negligence of rear drive in rear-end collision was sole proximate cuacausee of accident; can rebut with illegal or reasonably unexpected conduct by lead driver, or mechanical failure of rear vehicle |
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Term
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Definition
-actual: must prove actual, not just economic
-compensatory: make V whole
-duty to mitigate
-personal injury: past/future pain and suffering, medical expenses, lost wages/reduced future earnings, eggshell skull rule (liable for full extent of P's injuries and may be increased because of preexisting condition)
-property damage: generally difference between FMV before injury and immediately after
collateral source rule: benefits from outside source not credited against liability (traditional)
-statutes have eliminated or substantially modified rule
-FL has modified (life insurance not treated as collateral source; payments made to P by D's insurer are not considered payments from collateral source and credited against D's liability unless right of subrogation or right of reimbursement attaches to collateral source payments)
punitive damages: clear/convincing evidence, malicious, willful and wanton, or reckless behavior
-FL: punitive damages that are more than 3x compensatory or more than 500k, whichever is greater, are presumed unreasonable
-FL: employer only liable for punitive damages for employee conduct if employee guilty of intentional misconduct or gross negligence and employer knowingly participated in or ratified conduct, or employers gross negligence contributed to injury |
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Term
| Negligent infliction of emotional distress |
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Definition
D's negligence creates foreseeable risk of injury to P and D's action causes a threat of physical impact that causes emotional distress
-threat of physical impact directed at P or someone in immediate presence of P
-bystander must be within zone of danger; if not, may be allowed if close relationship to injured person, present at scene, and personally observed injury
-majority rule: physical symptoms required
-FL: follows common law for bystanders, but requires P to show physical injury/illness or physical impact upon his person |
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Term
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Definition
recovery limited to what decedent could recover, but not pain/suffering of P
-FL: D liable as if death had not occurred, so decedent's survivors and estate recover; can recover losses suffered as a result including pain and suffering
-FL: cannot file wrongful death claim from medical malpractice until investigation shows good faith grounds for negligence claim
-FL: all causes of action survive an may be commenced, prosecuted, and defended in name of person who has died |
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Term
| Loss arising from injury to family member |
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Definition
loss of consortium for spouses, loss of services for injured child
-FL: allows surviving spouse, minor children, and all children if there is no surviving spouse to recover for mental pain and suffering
-FL: D causing permanent total disability of parent of unmarried dependent is liable to dependent; parent can recover when child is totally disabled, but limited to time until child's 18th birthda |
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Term
| Vicarious liability - employer/employee |
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Definition
-liable for tort within scope of employment (acts employee is employed to do or acts intended to profit or benefit employer)
-not liable for intentional torts unless force authorized by job
-employer may be liable for tort committed during detour but not frolic
negligent hiring
-FL: employer presumed not to have been negligent in hiring employee as long as employer conducted background investigation and investigation did not reveal any information that reasonably showed employee's unsuitability for work to be performed; background check must include criminal background check, reasonable efforts to contact references and former employees, written job application, interviews, and DL's record check if driving; but if employer does not do background check no presumption that employer failed to use reasonable care in hiring
torts by independent contractors
-employer not liable for torts committed by independent contractors
-but can be liable if it is an inherently dangerous activity or nondelegable duties |
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Term
| Vicarious liability - business partners |
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Definition
-partners in joint enterprise may be liable for each other's torts
-when two or more parties have common purpose and mutual right of control, they may be liable for each other's torts that are committed within scope of business purpose |
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Term
| Vicarious liability - negligent entrustment |
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Definition
person can be directly liable for negligently entrusting vehicle, gun, or dangerous device to someone who is not in position to care for it
-but need to know/should know of driver's or user's negligent propensities
-FL: recognizes owner liability for actions of any driver
-FL: unless an employer-owned or employer-controlled vehicle is used for ridesharing, or unless standard for vicarious liability is otherwise met, employer is not liable for injuries resulting from ridesharing program
-FL: all motorized vehicles are dangerous instrumentalities and owners may be liable for damages resulting from negligent operation of their vehicle driven by others with owner's knowledge and cosnent |
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Term
| Vicarious liability - parents and children |
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Definition
generally: parents are not vicariously liable for minor children's torts
exceptions:
-parents liable for children acting as parent's agent
-state statutes provide for liability
-parent approves application for child to get license
negligence of parents
-may be liable for own negligence with respect to children's conduct
-parent is under duty to exercise reasonable care to prevent minor child from harming third party provided parent: has ability to control child and knows or should know of necessity for exercising such control |
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Term
| Vicarious liability - dram shop |
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Definition
-limits liability of bars and bartenders for injuries caused when people drink too much and injure third-parties
-form of direct liability; not vicarious liability
FL: provider of alcohol can be liable for resulting tort of another
-minors: one will be liable for injuries caused when one willfully and unlawfully sells or furnishes alcohol to a minor
-habitually addicted person: one will be liable for injuries caused when one knowingly sells or furnishes alcohol to a habitually addicted person |
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Term
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Definition
government: traditionally immune
-Federal tort claims act: federal government waives immunity in tort actions except for assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, and interference with contractual rights; discretionary functions, assertion of governmental immunity by contractor if contractor conformed to government specifications and government knew about any known dangers, traditional governmental activities
-state government: must waive immunity
-FL: liable for employee's negligent or wrongful acts within scope of employment, and government employees only personally liable for acts within scope of employment if acted with malice, bad faith, or wanton/willful disregard
-government officials: immunity applies if performing discretionary function as long as done without malice or improper purpose; no immunity for ministerial acts
intra-family: interspousal immunity extinguished in most states; parent-child immunity generally limited to core parenting activities
charitable: eliminated in most states |
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Term
| Sharing liability among multiple defendants |
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Definition
joint and several liability: each D found liable for single indivisible harm liable for entire harm; two torfeasors can be liable for a single harm
-FL: abolished except for cases of intentioanl torts
satisfaction and release: no double recovery
contribution: tortfeasor who paid more than fair share of common liability can recover excess of fair share from joint tortfeasor
indemnification: employer pays judgment for tort of employee, entitled to indemnity |
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Term
| Defenses to negligence - contributory negligence |
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Definition
-P's negligence is a complete bar to recovery
-not a defense to an intentional tort, gross negligence, or recklessness
-last clear chance doctrine: if D had last clear chance to avoid harm, but failed to do so, then P could still recover |
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Term
| Defenses to negligence - comparative negligence |
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Definition
pure
-judgment against each D must be based on a % of fault
-P's negligence not a complete bar to recovery
-P's damages reduce by proportion that P's fault bears to total harm
-FL: pure comparative fault state except for intentional torts
-FL: D can establish P's contributory negligence as defense by showing P unreasonably failed to use seatbelt, causing or substantially contributing to P's injuries, reducing D's liability by P's percentage of fault
partial
-if P is less at fault than D, P's recovery is reduced by his percentage of fault
-if P is more at fault than D, P recovers nothing
-if P and D are equally at fault, P recovers 50% of his total damages
FL: right of contribution to Ds who paid P over their pro rata share |
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Term
| Defenses to negligence - assumption of risk |
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Definition
-traditionally: unreasonably proceeding in face of known, specific risk bars recovery
-contributory negligent jurisdiction: no recovery
-comparative fault: merely reduces
-FL: pre-injury liability waivers are disfavored but permitted, but waivers of intentional torts or by parents on behalf of minors are unenforceable
-FL: P may not recover in any civil action if he was intoxicated or impaired by alcohol or drugs, and his impairment made him more than 50% at fault |
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Term
| Strict liability - elements |
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Definition
1. absolute duty to make P or his property safe
2. breach
3. actual and proximate causation
4. damages |
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Term
| Strict liability - abnormally dangerous activities |
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Definition
not commonly engaged in; inherent, foreseeable, and highly significant risk of harm (look to gravity of harm, inappropriateness of place, limited value of activity)
strict liability limited to harm expected from activity |
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Term
| Strict liability - animals |
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Definition
wild animals
-owner is strictly liable for harm done by wild animals despite owner's precautions to prevent harm as long as: P didn't knowingly cause injury and harm arises from dangerous propensity of animal about which owner has reason to know
-owner not strictly liable to undiscovered trespasser except for injuries by vicious watchdogs
-owner strictly liable for reasonably foreseeable damage caused by trespassing animal
domestic animals
-owner strictly liable for injuries if knows or has reason to know of dangerous propensities and harm results
-FL: owner always strictly liable if dog bites someone in a public place or someone lawfully in private place, but comparative fault can limit P's damages; if owner posts bad dog sign, only liable if negligent or dog bites someone under 6
-owner strictly liable for reasonably foreseeable damage caused by trespassing animal |
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Term
| Strict liability - defenses |
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Definition
contributory negligence: not complete defense and doesn't bar recovery
contributory negligence does not reduce P's recovery in comparative fault jurisdictions under strict liability claim (majority)
-FL: P's contributive fault does reduce P's recovery in proportion to fault even in strict liability claims
assumption of risk: bars recovery
statutory privilege: no statute of limitations for essential public services |
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Term
| Products liability - negligence |
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Definition
-duty: reasonable care owed to any foreseeable P by commercial manufacturer/distributor/retailer/seller
-breach: failure to exercise reasonable care in inspection/sale of product (defect would have been discovered if D wasn't negligent)
-causation: factual and proximate
-damages: actual injury/property damage
-defenses: contributory/comparative negligence and assumption of risk |
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Term
| Products liability - strict products liability |
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Definition
elements
-product was defective (in manufacture, design, or failure to warn)
-defect existed when it left D's control
-defect caused P's injury when used in a reasonably foreseeable way
defective product
-manufacturing defect: product does not conform to D's own specification
-design defect: consumer expectation test: dangerous beyond expectation of ordinary consumer; risk-utility test: reasonable alternative design that is economically feasible available to D and failure to use that design rendered product unreasonably safe
-failure to warn: foreseeable risk of harm, not obvious to ordinary user of product, risks could have been reduced or avoided by giving reasonable instructions or warnings
P: not required to be in privity of K
D: must be in business of selling
damages: personal injury or property damage, pure economic loss must be brought under warranty action
defenses
-comparative fault: P's negligence reduces recover as will assumption of risk
-contributory negligence: P's negligence not a defense if P misused product in reasonably foreseeable way or negligently failed to discover defect, but assumption of risk is complete bar to recovery
-product misuse, alteration, or modification by user precludes or reduces recovery if not reasonably foreseeable by manufacturer
-FL: assess technology for state of art defense when product sold, not when injury occurred
-FL: if product complied with state regulations/standards when sold/delivered, rebuttable presumption that product is not defective; rebuttable presumption of defect if it violated state regulations/standards when sold/delivered |
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Term
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Definition
merchantability: product is generally acceptable and reasonably fit for ordinary purposes
fitness: product fit for particular purpose and seller must know purpose and know buyer relied on seller's skill or judgment in supplying product
if breach, P need not prove fault
damages: personal injury, property damage, pure economic loss |
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Term
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Definition
-representation of fact about goods; part of basis of bargain
-seller liable for any breach of express warranty, regardless of fault |
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Term
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Definition
disclaimers
-consumer goods: limitation of consequential damages for personal injury is unconscionable
-express: valid only if consistent with warranty
assumption of risk; bars recovery
-FL: assumption of risk will not bar recovery
comparative fault: reduces recovery
contributory negligence: not a bar except when it overlaps with assumption of risk |
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Term
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Definition
1: defamatory language
2: of or concerning P
3: publication
-FL: before civil action may be brought for publication by media D, P must serve D with written notice of alleged defamatory publication; if it was published in good faith and then retracted or corrected, P only gets actual damages
4: falsity
-if statement relates to matter of public concern of P is public figure, P must prove it is false
-other way, P not required to prove falsity, but D may prove truth as an affirmative defense
-FL: requires private individual to prove falsity
5: fault
-public figure: actual malice
-public concern: D acted with fault (negligence or actual malice)
-not a matter of public concern: at least negligence
damages
-public figure: actual damages
-private person/matter of public concern: actual damages but if actual malice proven, punitive or presumed damages
-private person/not public concern: general, including presumed, damages without proving actual malice
defenses
-truth
-consent
-absolute: during judicial/legislative proceedings, between spouses, in required publications; FL: does not apply to attorney's ex parte/out of court questioning |
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Term
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Definition
-applies only to individuals and terminates upon death
-misappropriation: unauthorized use of P's picture or name for D's advantage; lack of consent; injury; FL: estate may bring action for trade purposes within 40 years after death
-intrusion upon seclusion: D's act of intrusion into P's private affairs, objectionable to reasonable person, no publication required
-false light: publication of facts about P or attributing views/actions to P that place him in false light objectionable to reasonable person under circumstances; in matters of public interest, P must show malice
-public disclosure of private facts: public disclosure or 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
damages: proof of emotional/mental distress enough, special damages not required
defenses: absolute/qualified privilege for false light/public disclosure; consent applies to all four types; mistake re consent negates defense even if reasonable; truth is not a defense |
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Term
| Intentional misrepresentation |
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Definition
1: false representation of material fact
2: scienter (knowledge or reckless disregard of truth)
3: intent to induce P to act or refrain in reliance on misrepresentation)
4: causation (actual reliance)
5: justifiable reliance
6: damages |
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Term
| Negligent misrepresentation |
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Definition
1: D is accounting firm or other supplier of commercial information
2: provides false information to P as a result of D's negligence in preparing information
3: P justifiably relies on information and incurs pecuniary damages as result
-P must be in a contractual relationship with D or D knows P is a member of a limited group for whose benefit information is supplied
-information must be relied on in a transaction that D intends to influence or knows recipient intends to |
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Term
| Intentional interference with K |
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Definition
-P must prove D knew of K between P and third party
-intentionally interfered with K, resulting in breach
-breach caused damages to P
defenses: justified if motivated by health, safety or morals; K is terminable at will; D is business competitor |
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Term
| Interference with prospective economic advantage |
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Definition
-more egregious conduct required for liability; independently tortious; violates federal or state law; improper conduct per balancing analysis
-business competitor not liable for encouraging switch in business |
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Term
| FL - breach of fiduciary duty |
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Definition
1: fiduciary duty exists
2: that duty is breached
3: breach causes damages |
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Term
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Definition
-P owns valid trade secret
-not generally known
-reasonable precautions to protect
-D took secret by improper means |
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Term
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Definition
trade libel: publication, derogatory statement relating to P's title to business property/quality of products and interference or damages to business relationships; proof of special damages
slander of title: publication of false statement derogatory to P's title to real property; malice; special damages as a result of diminished value in eye of third parties |
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Term
| Wrongful use of legal system |
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Definition
malicious prosecution: intentional and malicious institution of legal proceeding for improper purpose; action dismissed in favor of person against whom it was brought
-damages can include legal expenses, lost work time, loss of reputation, emotional distress
-jduges and prosecutors have immunity
abuse of process: use of legal process against P in wrongful manner to acommplish a purpose other than that for which it was intended; willful act; proof of damages required |
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