PA: Torts

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PA: Torts
2010-07-25 17:50:08

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  1. Shopkeeper's Privilege
    • GEN: Officer, merchant or merchant's employee must have Probable Cause to believe that retail theft has occurred or is occurring and that the person detained has committed it.
    • >> Reasonable manner, reasonable time -- on or off premises.

    • PURPOSE:
    • (1) Require suspect to ID himself;
    • (2) Determine whether suspect has unpurchased merchandise; OR
    • (3) Inform an officer of the peace or institute crim proceedings.
  2. Lethal Deadly Force and Self-Defense
    GEN: Duty to retreat unless in home or office.
  3. Defamation (Gen)
    • KEY: In addition to all other elements, must show FAULT in all defamation cases.
    • >> P must prove -- even in private concern cases -- at least a showing of negligence on the part of the publisher in all civil actions for libel.

    NOTE: If not public figure/concern, D must prove truthfulness as a defense.
    • (1) Loathesome disease
    • (2) Unchastity and sexual misconduct
    • (3) Indictabl criminal offense -- not just moral turpitude crimes.
    • (4) Profession/biz
  5. Defamation (Malice for Pub Figures)
    GEN: Evidence of MALICE may include a republishing of allegedly defamatory statement AFTER a complaint had been filed alleging that the statement was defamatory.

    DEF: False statement that results in a harm to another party.
  6. Intentional Interference with Business Relations
    • REQS:
    • (1) Existence of an actual or prospective contractual relationship;
    • (2) Intent to harm P by preventing the relationship from occurring;
    • (3) Absence of privilege or justification on D's part; AND
    • (4) Actual damages as a result of D's actions.

    NOTE: If try to induce employees to leave their present employment and take work with you WITHOUT BF intent, then may be okay.
  7. Wrongful Institution of Legal Proceedings
    DRAGONETTI STATUTE: Plaintiffs and their attys liable for wrongfully procuring, initiating, or continuing civil proceedings in "a grossly negligent manner or without probably cause."

    • REQS: The defendant in the original action must prove that --
    • (1) Underlying proceedings were terminated in former D's favor;
    • (2) Former P initiated those proceedings w/o PC or in a GN manner;
    • (3) Former P filed original action for improper purpose (bad faith); AND
    • (4) Former D sustained damages as a result.

    • PC (Lawyers): Exists where attorneys reasonably believe in:
    • (1) the facts on which the action is based; AND
    • (2) the legal theory under which is brought.

    • PC (Lay Ppl): Exists where reasonably believe in:
    • (1) Claim may be valid in reliance on the advice of counsel;
    • (2) Sought in GF; AND
    • (3) After full disclosure of all relevent facts w/in their knowledge.
  8. Medical Treatment: Medical Negligence
    • GEN: When neg is a substantial factor in causing patient's injury, P does not have to prove to a certainty that proper care would have prevented the injury.
    • >> If any possibility of avoiding the injury, and the doctor destroyed that possibility, he is liable.
    • >> Causal Cxn Bwn Injury and Phys Action: can be proved by evidence that the risk of incurring those injuries was increated by the doctor's neg conduct.
  9. Legal Neg
    GEN: Must prove that you would have won underlying action absent att'y neg.
  10. Duties: Unknown Trespassers
    • GEN: Same as reg tort law, but also --
    • Duty to refrain from wanton and/or willful conduct.
  11. Negligent Infliction of Emotional Distress
    • (1) Impact Rule: Where physical injury caused by D;
    • (2) Zone of Danger: P was in personal danger of physical impact from being in the zone of danger of injury; OR
    • (3) Bystander Rule: P observes D cause injury to a close relative.

    • INJURY: Must have a physical manigestation of emotional distress to recover.
    • >> INCLUDE: Depression, anxiety, stress and nightmares.
  12. Good Samaritan Statutes
    GEN: Protects med personnel rendering emergency care or rescue, non-med personnel rendering emergency care/rescue who are certified in first aid, AND volunteers without compensation rendering services (managers, coached, umpires, or referees).

    EFFECT: P must prove GROSS NEG to recover.
  13. Duty to Control Third Persons
    • Employer liability for employees:
    • GEN: employer may be liable to injured third parties for the wrongful acts of a negligently hired or negligently supervised employee.
    • REQS:
    • (1) Employer knew or should have known (reasonable care) of the need to exercise control over the employee to see that he was not dangerous to others;
    • (2) Employer failed to exercise such control;
    • (3) Employee acted in a dangerous manner and employer had notice and acquiesced; AND
    • (4) Third party suffered an injury.

    NOTE: Absence of supervision on the job -- may constitute constructive notice of the employee's behavior.
  14. Last Clear Chance Doctrine
    GEN: None in PA b/c comparative neg jdx.
  15. Assumption of the Risk
    EXPRESS: Accepted as a defense to negligence.

    IMPLIED: Plurality of the PA Sup. Ct has held that there should NOT be an implied assumption of the risk.
  16. Domestic Animals -- Dog Bite
    GEN: No SL, even if owner has knowledge of dog's previous biting.
  17. Product Liability: Existence of a Defect
    * Malfunction Theory *
    KEY: In PA, jury can infer the existence of a defect in a product from evidence that the product malfunctioned with normal use and in the absence of reasonable secondary causes.
  18. Strict Liability Cases and Effect of Defenses
    KEY: Comparative neg doctrine is NOT A DEFENSE in SL actions.

    • RESULT: Defenses -- assumption of the risk, misuse of the product, highly reckless conduct, product alteration, ect. are COMPLETE defenses.
    • BUT: failure to discover or guard against the existence of a defect (ie. ordinary negligence) is no defense for Ds.
    • >> Ordinary negligence evidence NOT admissible UNLESS -- accident solely held to be the result of the user's conduct and not related to the defect in the product.
  19. Nuisance (Per Se and Private)
    • PER SE: Use of land recognized as injurious to the health/welfare of the community.
    • NOTE: Depends on the surrounding circumstances, including the approp. of the location.
    • >> Proof of the act = proof of the nuisance.

    • PRIVATE: Conduct must be --
    • (1) Intentional and unreasonable; OR
    • (2) Unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct OR for abnormally dangerous conduct/activities.
    • NOTE: Remedy requires significant harm.
  20. Parent liability for child
    GEN: Parents can be held up to $2.5K liabl for the tortious acts of their minor children.
  21. Adult Social Hosts and Alcohol
    Minors: If actual knowledge that you're serving a minor, liability for subsequent injuries -- either to himself or a third party.

    Intoxicated Adults: No liability for serving alcohol to an intoxicated adult.
  22. Contribution
    * Joint Tortfeasors and Settlements *
    • GEN: If JT enters into a settlement with P, permitted to seek contribution from other JTs if their liability is also extinguished by the settlement.
    • >> BUT: Cannot seek contribution from those whose responsibility is not extinguished by the settlement -- even if the amount of the settlement turns out to be more than the settling tortfeasor's pro rata share of the judgement...
  23. False Arrest and Gvt Immunity
    GEN: Municipality NOT liable for a false arrest committed by one of its employees.
  24. Immunity of Public Officials
    GEN: Pub officials acting pursuant to a court order are immune from a tort action for false arrest.

    BUT: May have a claim for violation of federal constitutional rights.
  25. Damages: Future Lost Earnings, Loss of Life's Pleasures
    • Future Lost Earnings
    • GEN: To be recoverable, future lost earnings must be reasonably certain and quantifiable.
    • >> Must prove that one's economic horizons have been shortened as a result of the tortfeasor's negligence.
    • >> If too speculative, will not be awarded.

    • Loss of Life's Pleasures
    • GEN: Present evidence that you lost life's pleasures, and the importance of such pleasures.
  26. Sudden Emergency Defense (Neg Cases)
    GEN: When a defendant is suddenly and unexpectedly confronted with a perilous situation that permits no opp to assess the danger and respond appropriately, SED can excuse liability for negligence.

    NOTE: Must show that you (D) did not create the emergency. Usually applied in motor vehicle accident cases.
  27. Strict Liability: Abnormally Dangerous Activity
    GEN: Policy judgment that one who engages in certain activities will be financially responsible to those injured by such activities.

    • TEST:
    • (1) High degree of risk?
    • (2) Likelihood that harm will be great?
    • (3) Inability to eliminate risk with reas. care?
    • (4) Common usage?
    • (5) Benefits to community outweigh its dangers?
  28. Respondeat Superior
    ** Form of VICARIOUS Liability *
    That's it.