Home > Preview
The flashcards below were created by user
on FreezingBlue Flashcards.
Elements of Negligence
Prima facie case requires showing D owed duty of care to P, D breched that duty, and breach was actual (but for) and proximate cause of P's harm resulting in damages.
LL has duty to exercise reasonable care over common areas such as halls, walks, elevators, that remain under his control. LL is liable for any injury resulting from dangerous condition that could reasonable have been discovered and made safe. Same duty as occupier to guests.
Duty of Good Samaritan
Merely to refrain from reckless or gross negligence.
WA is a comparative fault state, so responsibility will be apportioned between parties. D will only be liable for percentage of fault attributed to him.
- Extends only to harms proximately caused by activity of same type that caused law to classify as SL
- -Animal trespass
- -Wild animals, dog bites in public, domestic animals if scienter
- -Abnormally dangerous activities, regardless of precautions
Desire or knowledge to a substantial certainty that consequence will happen if D does a volitional act
Intentional Torts (List)
- False Imprisonment
- Trespass to Land
- Trespass to chattel
- THEN LOOK FOR:
- defamation, false light, invasion of privacy, intentional interference w/ biz relationship, misrepresentation/fraud, nuisance, bailment
intention infliction of harmful or offensive contact to P's person
D's intentional act causes P to have apprehension of an imminent battery and D has present apparent ability to achieve battery.
D intentionally confines O within an area bounded on all directions with no reasonable escape route of which P is aware and P is either aware of confinement or harmed by it
P suffers severe mental distress caused by D's intentional or reckless behavior that is judged extreme and outrageous by P and reasonable person or P alone and P knows of P's special vulnerablity.
Trespass to Land
Intentional (even if reasonably mistaken) physical invasion of P's land whether on, over, or under land by means of method of invasion
Trespass to Chattels
Intentional (even if mistaken) use of or intermeddling in personal property in P's possession, such that chattel is impaired in condition, quality, or value or P is deprived of chattel's use for a substantial time
Major trespass to chattels. P may elect Conversion ot TTC. If conversion, P enetitle to recover FMV of chattel plus any consequential damages (If conversion, P relinquished chattel for "forced payment")
Licensee (on land for licensee's benefit): Owner owes duty to warn of known dangers.
Invitee (for owner's benefit): Duty to warn abour dangers which he knew or should have known
Trespasser (no permission): no duty to warn trespasser.
Defenses to Intentional Torts
Consent: willingness in fact or apparent consent
Defense of self/others
Defense of property/chattels: never deadly force, no mistake allowed
Authority of Law
Cause in Fact
But for D's act, no harm to P
D liable for all harms that are foreseeable at time of negligent act
Only prima facie showing of negligence. Arises to negligence per se when P w/i class of people to be protected by statute, and suffers from injury statute designed to prevent.
Res Ipsa Loquitor
permissive inference of negligence if P proves accident type that usually does not occur absent negligence, D controlled instrumentality of harm, and P was not at fault.
an event that comes between D's negligent act and P's harm. Can be natural or 3rd party action.
If not foreseeable human or natural intervention, sufficient to break causal chain and relieves D of liability for ensuing harm.
Danger to a rescuer is reasonably foreseeable, and original D liable for injuries suffered in rescue attempt.
damage to bodily integrity and property interests. no liability for purely economic loss.
Negligent Infliction of Mental Distress
Mental distress infliction through negligent action, and symptoms must objectively manifest.
- Fright: P almost suffers physical injury
- Direct Victim: D has actual knowledge of person and likelihood of express distress potentially resulting from negligence
- Bystanders: must be at scene or come shortly thereafer and be close relative of victim
Duty to Mitigate
Concerns remunerative employment for which O is qualified in injured condition and curative or amelorative medical treatment to which RP would submit.
Collateral Source Rule
Damages not reduced for sums received by 3rd parties on account of injuries for which P is seeking compensation.
WA is a pure comparative fault state. Injured P can always recover (unless drunk and over 50% at fault or committing felony). Recovery will be reduced by P's proportion of negligence.
Assumption of Risk
Express: written release
Implied: P has actual knowledge of risk, appreciates magnitude, and volunarily goes forward. D has limited duty of care if risk assumed.
Public & Private Nuisance
Public- D's act unreasonably interferes with health, safety, property rights of entire community and P has special injuries not suffered by public at large.
Private- Substantial and unreasonable interference with P's interest in use and enjoyment of land
Applies if D's product injures P's person or property, and all other remedies preempted.
Product must be sold by product seller (everyone involved in commercial chaid of distribution of new products).
Theories of Recovery Against Non-Manufacturers
- -D's own negligence
- -Breach of D's own express warranty
- -Own fraud regarding product
Theories of Recovery Against Manufacturers
- -Strict Liability for defective construction (compare design with what received)
- -Breach of express or implied warranties (merchantibility, fitness for purpose)
- -Negligence (design defect with reasonable alternative, inadequate warnings or instructions)
Defenses Against Products Liability
- Regulatory Standards
- Compliace with Gov Contract Standards
- Useful Safe Life (presumed 12 years)
- Comparative Fault
Intentional false statement of fact of or concerning a person published to a 3rd person that invites scorn or hatred and damages reputation.
Defendant Fault for Defamation
- Public figure: actual malice (knowledge of falsity or reckless disregard for truth)
- Private figure/public concern: negligence and injury
- Private/private: negligence
Intrusion on P's Private Affairs
act of prying by D and intrusion would be objectionable to RP
Publication in False Light
D attributes to P things P did not do/say and false light would be objectionable to RP.
Public Disclosure of Private Facts
D publicly exposes P's private info, and RP would object to it being made public. Privileged if of "legitimate public interest"
Appropriation of P's Name or Picture
D's unauthorized use for commercial advantage of P's name or likeness.
Consumer Protection Act
Prohibits unfair methods of competition and unfair or deceptive acts in trade or business that affects public interest and injures P in biz or property.
SOL: 4 years
- Employer vicariously liable for employee's negligence if occuring w/i scope of employment and in furtherance of employer's business (no frolic).
- (See also: negligent hiring/supervision)
Car Owner Liability
- No vicarious liability except for family car doctrine.
- (See also: negligent entrustment)
Parent for Child Liability
- None, unless child acting as agent.
- Vicariously liable for intentional torts limited to $5000.
- (See also: negligent supervision)
Knowing false representation of material existing fact with intent to induce reliance and P's ignorance of truth, justifiable reliance, and resulting damages.
Intentional Interference with Business Relations
Existence of valid contractual relationship or biz expectancy, knowledge on part of interferer, and intentional inferference inducing or causing breach or termination of relationship with resulting damage.