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Definition
1) An agreement 2) A common purpose 3) Community of interest 4) Equal right/authority to control Duty ONLY to third parties - NOT business |
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Term
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Definition
Duty of Care - avoid willful and wanton infliction of harm Ex. - recreational entrant, undiscovered tresspasser |
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Definition
Duty of Care - warn of hidden, dangerous,conditions known to the landowner - "look to open and obvious"
Ex. - social guest, discovered tresspasser, fire/police |
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Term
Invitee mutual benefit OR landowner's business purpose |
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Definition
Duty of Care - reasonable care = reasonably inspect and warn/make safer Invitation - express OR implied Ex. - child tresspasser, business benefit |
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Definition
1) Young child of tender years 2) Tresspass (not already on prop as other catagory) 3) Attracted to entry - thing must entice entry 4) Artificial condition - highly dangerous |
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Term
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Definition
1) Rural/undeveloped 2) Cant charge for entry unless incidental fee 3) Specific recreational activity |
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Definition
| Generally NO duty of care upon lessors with respect to injured tenants or guest |
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Term
Lessors of Real Property Exceptions to General Rule |
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Definition
1) Common Area - landlord retains control, common use by tenants OR necessary for safe use of premise 2) Voluntary Repairs - negligent performance 3) Undisclosed latent defects - duty to disclose if LL knows or has reason to know and tenant does not 4) Premises leased for public use - LL MUST know that it will be used by public |
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Term
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Definition
1) Unreasonable interference with - balance - locality, operation, harm, interest invaded 2) Use and Enjoyment Remedy - injuction and sometimes money damages |
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Definition
Interference with rights enjoyed in common by all members of community at large 1) Standing - Private - must be specific/unique different kind - Public - prosecutor to abate on behalf of citizens
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Term
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Definition
1) Injunction - primary (equity for no adequate legal) 2) Damages - secondary legal remedy 3) Abatement - when P's interest is < public you can have inverse condemnation imposing servitude on land |
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Term
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Definition
1) Slander (oral) - must show damage
- per se - damages presumed (4 catagories) 2) Libel (written, radio, TV) - damage presumed
- per se - on its face determined by court - per quod - other evidence needed for jury
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Term
Common Law Defamation Elements |
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Definition
1) False statement 2) Of and concerning P 3) Defamatory 4) Published to a 3rd person - must hear/understand 5) Damage to P's reputation - presumed in libel and slander per se |
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Term
Common Law Defamation Defenses |
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Definition
1) Truth - absolute defense 2) Qualified/Limited priviledge - must be good faith - e.g. protect legitimate business interest - NOT with malice or reckless disregard 3) Absolute priviledge - motive irrelevant - e.g. legislative debate |
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Constitutional Defamation Elements |
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Definition
1) False Statement regarding public figure/official 2) Of and Concerning P 3) Defamatory - P must prove falsity 4) Published to 3rd party 5) Damage - P must prove by clear & convincing ev - P must prove Actual Malice - knowingly false, or reckless disregard to the truth
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Term
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Definition
1) Intentional - consider motive and manner of invasion 2) Substantial intrusion to P's seclusion - consider P's reasonable expectation of privacy based on circum 3) Highly Offensive to reasonable person |
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Term
| Appropriation of Name/Likeness |
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Definition
1) Appropriation - unwanted/unpermitted use 2) Name or Likeness - similar to property right 3) Economic/Commercial benefit Protects personal privacy and publicity rights |
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Term
| Public Disclosure of Private True Facts |
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Definition
1) Public Disclosure - widespread dissemination 2) Private True facts - different from defamation 3) Highly offensive to reasonable person - look to whether disclosure NOT facts was highly offensive 4) NOT a matter of legitimate public concern - maybe necessary if media D
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Term
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Definition
1) Intent OR Reckless Disregard 2) Public Disclosure 3) Highly Offensive to RP 4) Misleading or false facts Note Times issues with media D
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Term
| Civil Rights under S 1983 |
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Definition
1) Intentional - cant be negligent 2) D acts under "color of state law" - D had apparent/actual authority 3) P is deprived of federally guaranteed right |
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Term
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Definition
1) Bivens - certain gov officials are immune if alternative state remedy or federal remedy exists 2) Absolute - judicial, prosecutorial 3) Qualified - must be good faith |
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Term
| Malicious Prosecution - Criminal |
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Definition
1) Initiated by D 2) Lack of probable cause 3) Initiated or continued through CL malice 4) Termination in favor of accused - NOT nole pros 5) Actual damage |
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Term
| Malicious Prosecution - Civil |
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Definition
1) Initiated by D 2) Lack of probable cause - less than crim req'd 3) Malice - more than implied 4) Termination in favor of accused - NOT settlement 5) Damages - special injury |
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Term
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Definition
1) Ulteriour purpose - not what action was designed to acomplish 2) Abuse of process - e.g. extortion 3) Malice |
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Term
| Negligent Misrepresentation |
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Definition
1) False statement - P must prove 2) Material fact 3) Breach of duty based on parties relationship - limited to commercial interest 4) Reasonable reliance - cause in fact 5) Damages - restitution |
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Term
| Intentional Misrepresentation - Fraud |
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Definition
1) False statement 2) Material Fact - significant in making decision
3) Scienter - knowingly false or reckless disregard - D intended to induce reliance i.e. motive
- Ex. active concealment 4) Justifiable Reliance - MUST be causal and reasonable 5) Damages - restitution and expectation
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Term
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Definition
Generally NO duty to affirmatively act
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Term
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Definition
1) Putting P in positin of peril - D creates situations requiring rescue and has duty to victim and foreseable rescuers 2) Volunary Assumption of duty - must act reasonably 3) Special Relationship with Victim 4) Contractual Duty |
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Term
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Definition
| When D is responsible for making P's position worse by acts of commision (active negligence) |
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Term
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Definition
Generally NO duty unless when special circumstances leave D in position where he should have done something OR launched instrumentality that causes negligence (passive negligence) D creates unreasonble risk of harm NOT based on D's failure to intervene |
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Term
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Definition
Dillon - guidelines - Degree of relationship - Proximity to victim - How observed/learned Modified Dillon - requirements - Close relationship - Physically present and aware - Severe emotional distress Zone of Impact - must be close to victim |
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