Bar 6

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Author:
christinalum
ID:
91154
Filename:
Bar 6
Updated:
2011-06-19 17:43:30
Tags:
Torts
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Description:
Torts
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  1. False Light
    • Elements:
    • 1) Publication of facts placing plaintiff if a false light in the public eye, AND
    • 2) the 'false light' is highly offensive to a reasonable person under the crcmst


    Malice is req'd if the matter is in the public interest
  2. Intrusion on Seclusion
    • Elements:
    • 1) Act of intruding into seculsion,
    • 2) The intrusion would be highly offensive to a reasonable person, AND
    • 3) The object of intrusion is private
  3. Appropriation
    Unauthorized use of one's pictures or name for commercial advantage
  4. Public Disclosure of Private Facts
    • Elements:
    • 1) Public disclosure of private info, AND
    • 2) The matter disclosed is highly offensive to a reasonable person
  5. False Imprisonment
    • Elements:
    • 1) An act or omission that confines or restrains plaintiff to a bounded area,
    • 2) Intent,
    • 3) Causation

    • Except: Shopkeepers privilege to detain for investigation if:
    • 1) There is a reasonable belief of theft,
    • 2) Detention is conducted in a reasonable manner, AND
    • 3) For a reasonable period of time
  6. Intentional Infliction of Emotional Distress
    • Elements:
    • 1) Extreme and outrageous conduct,
    • 2) Intent or recklessness,
    • 3) Causation, AND
    • 4) Damages, ie severe emotional distress; phsysical manifestation not required
  7. Bystanders' Claims for Intentional Infliction of Emotional Distress
    • 1) The bystander was present when injury occurred,
    • 2) The bystander was a close relative of the injured person, AND
    • 3) Defendant knew that the bystander was present and a close relative.
  8. Defenses to Intentional Torts
    • 1) Consent
    • 2) Defense (self, others, property)
    • 3) Reentry onto Land/Recapture of Chattels
    • 4) Privilege of Arrest
    • 5) Necessity (only for property torts)
    • 6) Discipline
  9. Consent
    • Defendant is not liable for tortious act if plaintif consent
    • Types:
    • 1) Express
    • 2) Implied - shown from custom
    • 3) Implied by Law
    • Consent if invalid if:
    • 1) Obtained from Mistake, Fraud, or Duress
    • 2) Consent for criminal acts, UNLESS law seeks to protect members of victim's class
  10. Defamation
    • Elements:
    • 1) Defamatory Statement;
    • 2) Referring to plaintiff;
    • 3) Publication;
    • And, in cases of Slander (but not for libel or slander per se):
    • 4) Damages;
    • And, if statement deals with 'public concern':
    • 5) Falisity of statement;
    • 6) Intent or Recklessness for public figures, and Negligence for private figures
  11. Slander Per Se
    • For defamation claims, damages needn't be proven if it is slander relating to:
    • 1) Business or Profession,
    • 2) Crime of Moral Turpitude,
    • 3) Unchasitity of a Woman, OR
    • 4) Loathsome disease (Leprosy or Venereal Disease)
  12. Torts with Transferable Intent
    • 1) Assault
    • 2) Battery
    • 3) False Imprisonment
    • 4) Trespass to Land
    • 5) Trespass to Chattels
  13. Absolute Privileges for Defamation
    • 1) Spouses
    • 2) Gov't Officials of Judiciary, Legislature, and Executive
    • 3) Media broadcasts and reports of public proceedings
  14. Standard of Care for Children
    Standard of Care of a child with similar age, experience, and intelligence acting under similar circumstances.
  15. Standard of Care for Professionals
    • Standard of Care of a member in good standing of that profession who practices in a similar community
    • EXCEPT: Specialists are held to a national standard
  16. Duty of Care owed to Trespassers
    • If undiscovered and unanticipated: No Duty
    • If discovered or anticipated: Duty to warn if condition is:
    • 1) Artificial
    • 2) Highly dangerous
    • 3) Hidden, AND
    • 4) Known to possessor
  17. Duty of Care owed to Licensee
    • Duty to warn if condition is:
    • 1) Artificial or natural
    • 2) Hidden, AND
    • 3) Known to possessor
  18. Duty of Care owed to Invitees
    • Duty to warn and make reasonable repairs if condition is:
    • 1) Artificial or natural,
    • 2) Hidden, AND
    • 3) Discoverable upon reasonable inspection
  19. Statutory Standard of Care
    • Standard of Care is set by statute if:
    • 1) Plaintiff is a member of class that statute protects, AND
    • 2) Injury is in the class of risk that statue tries to prevent.
    • EXCEPT, If under the circumstances:
    • 1) Obeying statute is more dangerous than violating, OR
    • 2) Compliance is impossible.
  20. To be a claimant for Negligent Infliction of Emotional Distress...
    • Plaintiff must be...
    • ...'Near Miss' victim who is:
    • 1) In the 'zone of danger' AND
    • 2) Suffered physical manifestation from distress;
    • ...Bystander who is:
    • 1) Present at when injury occurred, AND
    • 2) A close relative;
    • ...Or, In a special relationship with Defendant:
    • 1) Mishandling corpse;
    • 2) Death notices
  21. Bailment Duties
    • If bailment benefits bailer, bailee is liable only for gross negligence and bailor owes notice of reasonably knowable defects.
    • If bailment benefits bailee, bailee is liable even for slight negligence and bailor owes notice of known dangerous defects.
    • If for mutual benefit, bailee owes ordinary care.
  22. Wrongful Institution of Legal Proceedings
    • Malicious Prosecution req's:
    • 1) Institution of criminal proceedings against Plaintiff,
    • 2) Termination in favor of Plaintiff,
    • 3) No probable cause for prosecution,
    • 4) Improper purpose of Defendant, AND
    • 5) Damages
    • Wrongful Civil Proceedings req's same as malicious prosecution, except for civil cases.
    • Abuse of Process req's:
    • 1) Wrongful use of process for ulterior motive, AND
    • 2) Definite act or threat to accomplish ulterior motive.
  23. Interference with Business Relations
    • Elements:
    • 1) Valid contractual relationship or valid business expectancy of Plaintiff,
    • 2) Defendant's knowledge of the relationship or expectancy, AND
    • 3) Intentional interference that induces breach or termination,
    • 4) Damage
  24. Misrepresentation
    • Intentional Misrepresentation req's:
    • 1) Misrepresentation by Defendant,
    • 2) Scienter (Knowledge or reckless disregard to falsity),
    • 3) Intent to induce reliance on misrepresentation,
    • 4) Causation (actual reliance)
    • 5) Justifiable reliance, AND
    • 6) Damages
    • Negligent Misrepresentation req's same as intentional, except no scienter and no intent, instead, breach of duty.
  25. Foreseeable Plaintiffs
    • Andrew's Theory: anyone
    • Cardozo's Theory: anyone in a foreseeable 'zone of danger'
  26. Res Ipsa Loquitor
    • When Plaintiff cannot identify the wrongful conduct, RIL will establish prima facie case.
    • Req's:
    • 1) Accident is the type that would not normally occur unless someone was negligent, AND
    • 2) Defendant had exclusive control of the instrumentality of accident.
  27. Strict Product Liability
    • Elements:
    • 1) Defendant is a merchant,
    • 2) Product is defective,
    • 3) Product has been unaltered since leaving Defendant's hands, AND
    • 4) Injury in from foreseeable uses of the product.
  28. Assumption of Risk
    • Plaintiff may be denied revocery if he:
    • 1) Knew of the risk, AND
    • 2) Voluntarily assumed it.
  29. Vicarious Liability
    • Passive party is liable for tort of active party if there is a relationship:
    • 1) Employer-Employee
    • 2) Independent Contractor-Hirer, but only in cases of Inherently Dangerous Activity or Landpossessor-Entrant
    • 3) Partnerships or Joint Ventures
  30. Indemnity
    • Tortfeasor recoops entire loss from co-tortfeasor, in cases of:
    • 1) Vicarious liability,
    • 2) Strict products liability, OR
    • 3) By contract.
  31. Abuse of Process
    • Elements:
    • 1) Wrongful use of process for an ulterior purpose, AND
    • 2) Definite act or threat to accomplish ulterior purpose.
  32. Duty to Act Affirmatively
    • Generally, there is no duty to act affirmatively.
    • Except when:
    • 1) There is a preexisting relationship, OR
    • 2) Defendant caused the peril.
  33. Duty of Care owed to Child Trespassers
    • Reasonable prudence with regard to any artificial condition on the land.
    • If there is an Attractive Nuisance, then there is a higher standard of care.

    Attractive Nuisance - something on land that attracts children
  34. Abnormally Dangerous Activity
    • Abnormally Dangerous Activities are those that:
    • 1) create a foreseeable risk of serious harm even when reasonable care is exercised, AND
    • 2) the activity is not of common usage in the community.
  35. Implied Warranties for Products
    • In every sale of good, there includes the implied warranties of:
    • 1) Merchantability - average acceptable quality and fit for ordinary purposes
    • 2) Fitness for a Particular Purpose - when Seller has reason to know Buyer's particular purpose and Buyer relies on Seller

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