Term
| Can a mentally incompetent person or child be held liable for intentional torts? |
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Definition
| If they act with the purpose or know the consequences of their acts with a substantial certainty. |
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Term
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Definition
1. An act that causes a harmful or offensive contact (offensive to a person of ordinary sensibilities) with the person of another
AND
Acts with the intent to cause such contact or the apprehension of such contact. |
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Term
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Definition
| A plaintiff's reasonable apprehension of an imminent harmful or offensive bodily contact with the intent to cause either the apprehension of such contact or the contact itself. |
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Term
| What is intentional infliction of emotional distress? |
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Definition
| Intentionally extreme or outrageous conduct that causes the plaintiff severe emotional distress |
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Term
| If a defendant is liable for intends to inflict emotional distress on a 3rd party, which bystanders is he liable to? |
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Definition
A member of the victim's immediate family (which defendant knows of the familial relation) who is present at the time of defendant's conduct whether or not the distress results in bodily injury.
Any other bystander must be present and suffer bodily injury |
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Term
| What are the elements of false tort imprisonment |
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Definition
1. Intending to confine or restrain another within a bounded area
2. Those actions directly or indirectly result in such confinement
3. The other is conscious or harmed by the confinement. |
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Term
| What are defenses to intentional torts? |
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Definition
1. Express consent
2. Implied consent (sporting events, emergencies)
3. Self-defense
4. Defense of others
5. Defense of property
6. Parental discipline
7. Privilege of arrest |
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Term
| When citizen arresting someone, it's a defense to false imprisonment to be mistaken as to_______ but not________ |
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Definition
| The identity of the felon but not that a felony had been committed |
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Term
| What is trespass to chattels? |
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Definition
Intentional interference with the plaintiff's right of possession by either:
1. Dispossessing the plaintiff of the chattel
OR
2. Using or intermeddling with the plaintiff's chattel |
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Term
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Definition
| Intentionally committing an act which deprives plaintiff of possession of chattel or interfering with the plaintiff's chattel in a manner so serious as to deprive the plaintiff the use of the chattel. |
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Term
| What is tort trespass to land? |
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Definition
| When a defendant's intentional act causes a physical invasion of the land of another. He does not need to know that the land belongs to another. |
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Term
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Definition
| The substantial and unreasonable interference with an individual's use or enjoyment of the land. |
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Term
| When does a physician not need to inform his patient of the risk? |
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Definition
i) Risk is a commonly known risk;
ii) Patient is unconscious;
iii) Patient waives or refuses the information;
iv) Patient is incompetent (although the physician must make a reasonable attempt to secure informed consent from a guardian); or
v) Disclosure would be too harmful to the patient (e.g., would upset the patient enough to cause extreme illness, such as a heart attack). |
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Term
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Definition
i) When a criminal or regulatory statute (or an administrative regulation or municipal ordinance) imposes upon any person a specific duty for the protection or benefit of others;
ii) If the defendant neglects to perform that duty;
iii) He is liable in negligence to anyone in the class of people intended to be protected by the statute;
iv) For any accidents or harms of the type the statute was intended to protect against, and
v) That were proximately caused by the defendant’s violation of the statute. |
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Term
| What standard of care is a common carrier held to? |
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Definition
| Common carriers (e.g., planes, trains, buses) and innkeepers to the highest duty of care consistent with the practical operation of the business. |
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Term
| When are possessors of land liable? |
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Definition
i) Conduct by the land possessor that creates risks;
ii) Artificial conditions on the land;
iii) Natural conditions on the land; |
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Term
| What duty is owed to undiscovered and discovered trespassers? |
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Definition
Undiscovered-to refrain from willful, wanton, reckless, or intentional misconduct
Discovered-Land possessors owe a duty toward discovered or anticipated trespassers to warn or protect them from concealed, dangerous, artificial conditions. |
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Term
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Definition
Liable for injuries to children trespassing on the land if:
i) An artificial condition exists in a place where the owner knows or has reason to know that children are likely to trespass;
ii) The land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children;
iii) The children, because of their youth, do not discover or cannot appreciate the danger presented by the condition;
iv) The utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children; and
v) The land possessor fails to exercise reasonable care to protect children from the harm. |
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Term
| Where is a landlord's tort liability? |
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Definition
i) In common areas such as parking lots, stairwells, lobbies, and hallways;
ii) As a result of hidden dangers about which the landlord fails to warn the tenant;
iii) On premises leased for public use;
iv) As a result of a hazard caused by the landlord’s negligent repair; or
v) Involving a hazard the landlord has agreed to repair. |
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Term
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Definition
i) The accident was of a kind that ordinarily does not occur in the absence of negligence;
ii) It was caused by an agent or instrumentality within the exclusive control of the defendant; and
iii) It was not due to any action on the part of the plaintiff. |
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Term
| Where is the substantial factor test appropriate? |
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Definition
i) There are multiple tortfeasors and it cannot be said that the defendant’s tortious conduct necessarily was required to produce the harm;
ii) There are multiple possible causes of the plaintiff’s harm but the plaintiff cannot prove which defendant caused the harm; or
iii) The defendant’s negligent medical misdiagnosis increased the probability of the plaintiff’s death, but the plaintiff probably would have died even with a proper diagnosis. |
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Term
| WHat are the requirements of alternative causation? |
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Definition
| If the plaintiff’s harm was caused by (i) one of a small number of defendants—usually two and almost never more than four or five, (ii) each of whose conduct was tortious, and (iii) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause-in-fact of the plaintiff’s harm. |
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Term
| When can bystander NIED be substantiated? |
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Definition
When a plaintiff bystander was within the zone of danger of threatened physical impact
Must have physical symptoms |
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Term
| When can a bystander plaintiff recover outside the zone of danger? |
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Definition
When the plaintiff
i) Is closely related to the person injured by the defendant;
ii) Was present at the scene of the injury; and
iii) Personally observed (or otherwise perceived) the injury.
Must have physical symptoms |
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Term
| What is the analysis for respondeat? |
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Definition
1. Employee/Independent contractor
2. Detour/Frolic
3. Delegable/non-delegable duty |
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Term
| When is a parent liable for the torts of the child? |
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Definition
i) The child commits a tort while acting as the parent’s agent;
OR
Negligent supervision |
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Term
| What is the last clear chance doctrine? |
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Definition
| In contributory-negligence jurisdictions, the plaintiff may mitigate the legal consequences of her own contributory negligence if she proves that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so. This doctrine has been abolished in most comparative-fault jurisdictions. |
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Term
| What does strict liability apply to? |
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Definition
1. Dangerous activities
2. Animals
3. Defective products |
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Term
| What is the definition of an inherently dangerous activity? |
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Definition
i) Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised; and
ii) The activity is not commonly engaged in.
III)Strict liability for an abnormally dangerous activity exists only if harm that actually occurs results from the risk that made the activity abnormally dangerous in the first place. |
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Term
| What is the strict liability for wild animals? |
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Definition
A wild animal is an animal that, as a species or a class, is not by custom devoted to the service of humankind in the place where it is being kept. The possessor of a wild animal is strictly liable for harm done by that animal, in spite of any precautions the possessor has taken to confine the animal or prevent the harm, if the harm arises from a dangerous propensity that is characteristic of such wild animals or of which the owner has reason to know.
Strict liability applies to an injury caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal, in addition to injuries caused directly by the wild animal. |
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Term
| What are the defenses to strict liability? |
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Definition
1. Contributory negligence
2. Comparative fault
3. Assumption of risk |
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Term
| What are the three ways to prove a defective product? |
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Definition
1. Defective design
2. Manufacturing
3. Warning |
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Term
| How does one prove up a strict products liability action? |
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Definition
i) The product was defective (in manufacture, design, or failure to warn);
ii) The defect existed at the time the product left the defendant’s control; and
iii) The defect caused the plaintiff’s injuries when used in an intended or reasonably foreseeable way. |
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Term
| WHat is a manufacturing defect? |
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Definition
| manufacturing defect is a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. The test for the existence of such a defect is whether the product conforms to the defendant’s own specifications. |
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Term
| What is a design defect, and how is it tested? |
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Definition
i) Consumer expectation test: Does the product include a condition not contemplated by the ordinary consumer that is unreasonably dangerous to him?
ii) Risk-utility test: Do the risks posed by the product outweigh its benefits? |
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Term
| What is a negligent warning? |
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Definition
| A failure to warn defect exists if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which risks could have been reduced or avoided by providing reasonable instructions or warnings. |
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Term
| Who is not liable for strict liability in the chain of sales? |
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Definition
1. Casual sellers
2. Auctioneers |
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Term
| What are the defenses to strict products liability? |
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Definition
1. Comparative fault
2. Contributory negligence
3. Assumption of the risk
3. Product misuse, modification, alteration
4. Substantial change in the product
5. Compliance with the governmental safety standards (considered as evidence)
6. State of the art
7. Statute of limitations
8. Disclaimers, waivers |
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Term
| What types of warranties are available in tort products actions? |
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Definition
1. Implied warranty of merchantability-Warrants that the product being sold is generally acceptable and reasonably fit for the ordinary purposes for which it is being sold.
2. Fitness for a particular purpose-The implied warranty of fitness warrants that a product is fit for a particular purpose, but only if the seller knows the particular purpose for which the product is being purchased and the buyer relies on the seller’s skill or judgment in supplying the product.
Express warranties-An express warranty is a guarantee—an affirmation of fact or a promise—made by the seller regarding the product that is part of the basis of a bargain. |
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Term
| What are the elements for defamation? |
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Definition
i) If the defendant’s defamatory language;
ii) Is of or concerning the plaintiff;
iii) Is published to a third party who understands its defamatory nature; and
iv) Damages the plaintiff’s reputation. |
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Term
| To prove defamation against a public official or a public figure, the plaintiff must prove... |
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Definition
| Actual malice. If it's a limited public figure, the actual malice requirement only applies to the matter which the person has thrust themself into the public. |
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Term
| To prove defamation against a private individual on a matter of public concern, the plaintiff must prove... |
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Definition
| The defendant acted with fault—either negligence or actual malice. |
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Term
| The libel plaintiff need only prove... |
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Definition
| general damages in order to complete the prima facie tort of libel. General damages are any damages that compensate the plaintiff for harm to her reputation. |
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Term
| The slander plaintiff must prove either... |
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Definition
Special damages require the plaintiff to prove that a third party heard the defendant’s defamatory comments and acted adversely to her. Most often, special damages involve an economic loss to the plaintiff, e.g., loss of employment or loss of business, but they also would include such things as the plaintiff’s fiancé breaking off the engagement or a friend refusing to host the plaintiff in her home after hearing the defamatory comments.
OR
Slander per se
1. Committing a crime
2. Conduct reflecting poorly on plaintiff's trade/profession
3. Having a loathsome disease
4. Sexual misconduct |
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Term
| What types of damages can a public figure or public official recover? |
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Definition
| Only actual damages which are not limited to out-of-pocket expenses, but include compensation for impairment of the plaintiff’s reputation and standing in the community, personal humiliation, and mental anguish and suffering. |
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Term
| What types of communications are privileged from defamation lawsuits? |
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Definition
i) In the course of judicial proceedings;
ii) In the course of legislative proceedings;
iii) Between husband and wife; and
iv) Required publications by radio, television, or newspaper (e.g., statements by a political candidate that a station must carry and may not censor). |
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Term
| To prove the misappropriation of the right of publicity, plaintiff must prove... |
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Definition
i) Defendant’s unauthorized appropriation of the plaintiff’s name, likeness, or identity
ii) For the defendant’s advantage, commercial or otherwise;
iii) Lack of consent; and
iv) Resulting injury. |
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Term
| How does the plaintiff prove the unreasonable intrusion into plaintiff's private affairs? |
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Definition
| The defendant’s act of intruding, physically or otherwise, into the plaintiff’s private affairs, solitude, or seclusion in a manner or to a degree objectionable to a reasonable person establishes liability. |
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Term
| How do you prove false light? |
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Definition
| the defendant (i) made public facts about the plaintiff that (ii) placed the plaintiff in a false light, (iii) which false light would be highly offensive to a reasonable person. |
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Term
| What are the elements of public disclosure of private facts |
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Definition
i) The defendant gave publicity to a matter concerning the private life of another; and
ii) The matter publicized is of a kind that:
a) Would be highly offensive to a reasonable person; and
b) Is not of legitimate concern to the public. |
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Term
| How does a plaintiff prove intentional misrepresentation tort? |
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Definition
The misrepresentation must be of a material fact. Usually the defendant actively misrepresents the facts, such as through deceptive or misleading statements or pictures.
The plaintiff must prove actual economic (i.e., pecuniary) loss in order to recover; |
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Term
| How is an action for Intentional Interference With Contract proven? |
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Definition
i) Knew of a contractual relationship between the plaintiff and a third party;
ii) Intentionally interfered with the contract, resulting in a breach; and
iii) The breach caused damages to the plaintiff. |
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Term
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Definition
i) He intentionally and maliciously institutes or pursues, or causes to be instituted or pursued;
ii) For an improper purpose;
iii) A legal action that is brought without probable cause; and
iv) That action is dismissed in favor of the person against whom it was brought. |
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Term
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Definition
i) A legal procedure set in motion in proper form;
ii) That is “perverted” to accomplish an ulterior motive;
iii) A willful act perpetrated in the use of process which is not proper in the regular conduct of the proceeding;
iv) Causing the plaintiff to sustain damages. |
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