Card Set Information

2011-06-27 13:43:33

Show Answers:

  1. Types of Intent
    • 1. acting for purpose (desire to cause resulting consequence)
    • 2. substantial certainity (that conduct will cause result)
    • 3, Transferred Intent
    • 4. MINORS (generally held liable)
  2. Intentional Interference w/ the person
    • Battery
    • False Imprisoment
    • IIED
    • NIED
    • Assault
  3. Battery
    • Must show: 1. Intent of causing harmful or offensive
    • 2. conduct or an imminent apprehension
    • 3. offensive contact w. person directly or indirectly results NO physical harm necessary
    • offenses touches includes anything close or connectedto P
    • Indirectly= D set in motion harm producing force
    • P need not be aware of offensive contact and need not prove damages
  4. Assault
    • Must: Intend to cause harmful or offensive conduct or an imminent apprehension
    • 2. other person is put in such imminent pprehension
    • P must have reasonable apprehesion (must have awareness or knowledge of D's act)
    • If D has apparent ability he can be liable even if D could not have done so
    • Futher threats= No ASSAULT
    • Words alone are sufficient unless accompanied by overt act
  5. False Imprisonment
    • D liable if: 1. Intends to confine a person w/in certain fixed boundries
    • 2. Act results in such a confinement
    • 3. person is conscous of the comfinement or is harmed
    • D may liable if kid or mentally handicap even if unaware
    • confinement may result from: 1. physical force; 2. present threats of force; 3. failure to provid P a means of escape
    • unlawful arrest
    • physical boundries not required
  6. Shop Keeper's Privilege
    • No false imprisonment for shop keeper who detains suspected shoplifter it:
    • 1. Reasonable grounds to believe theft has occured
    • 2. detention is conducted in a reasonable manner
    • 3. detention is limited to a reasonable time period to make a investigation
  7. IIED
    • Extreme and outrages conduct intentionally or recklessly causes severe emotional distress or bodily harm to 3rd parties as result
    • Reqs: 1. Purpose of causing ED intent; 2. knowing ED is substantially certain; 3. D recklessly causes severe ED CP must suufer
    • when conduct is directed to 3rd person, D liable if intends to IIED: 1. Person of immediate family present (irrelevant if harm results)
    • 2. any other person present
    • Knowing of P's peculiar sensitivities if D knows and uses
    • Abuse of position of power
    • Lesser req when common carrier or in keepers (insults my suffice)
  8. 3rd Party recovery IIED
    • Family: presence required, bodily harm nt required
    • Non-Family: presence required, bodiy harm required
  9. NIED
    • Ds negliance cause only mental distrubance w/out physical injury, illness other physical consequences MAJORITY=no recovery
    • applies to all forms of ED: fright, nervous schock, nausea, grief,rage, hmiliation
    • neg transmission of message: mis info that P's family member died
    • neg mishalding of courpses:
    • Mental disturbances w/physical injury: P can recover for both
    • Physical harm must be immediate
    • 3rd party recovery: causing harm to another P must be in : Zone of danger"= in area and is threatned by act
  10. Intentional Interference w/ Property
    • trespass to land
    • trespass to chatells
    • conversion
  11. Duties Owned to Entrants Coming on the Land
    • Status: 1. trespasser/ undiscovered
    • 2. trespasser/known or anticipated
    • 3. lincense
    • 4. invitee
    • Duty owned: NO DUTY warn of kow dangerous conditions, no liablity for obvious dangerous conditions
    • Duty to warn of known dangerous conditions
    • Ordinary care: 1. inspect premise/ land
    • 2. make safe for protection of invtees who enter
    • doesnt extend to areas beyond scope of invitation
  12. IIED and Slander
    harm has to amount to more than 12 "hurt feelings"
  13. Self Defense (mistaken Identity)
    • if persim is about to be attacked but knows the attack is based on a mistake as to the persons identity, the person is not privileged to await the attack: then use force to defend himself if he has time to correct the mistake and prevent the attack
    • If D knows mistake NO S/D privilege
    • H has no S/D privilege is D had time to inform aggressor of mistale
  14. Consent
    • Words alone cannot justfy exceeding the scope of consent and using excessive force
    • i,e S/D-P was talking shit
  15. Defamation
    (Type of statements actionable)
    • only statements of fact can be actionable as being defamatory
    • statement of opinion= No C.O.A
  16. Comparative Fault Defense
    A defense to negligence and strict liability claims concerning product defect
  17. Mistake to Trespass
    • No defense even if mistake is completely understandable and reasonably made it good faith
    • knowledge is irrelevant
  18. (traditional rule)
    Contributory Negligence
    complete defense to neg claims complete bar to S/L claims
  19. Implied Assumption of Risk (traditional rule)
    complete defense to negligence claims and S/L claims
  20. When neg causes only "mental disturbance"
    no recovery will be allowed for mental disturbance alone unaccompanied by physical injury NIED claims
  21. Duty Act for Protection of Others
    • No duty to aid one in peril, absent a special relationship, moral obligation alone not enough
    • once begins to act duty
    • Misfeasance= affirmative act that creates or increases unreasonable risk
    • NOnfeasance= mere failure to take action that would reduce risk or prevent harm
  22. Special Relations Giving Rise Duty to Aid
    • 1. specal relationship that justifies departure from general rule
    • 2. common carriers: special duty passengers
    • 3. InnKeepers: special duty to guest
    • 4. Possesor of Land: one who holds land open to public to members who enter in response to invitation
  23. Good Smaritan Statutes
    Drs and nurses in a position when no duty to act, not liable fro ordinary (not gross) negligence if aids
  24. Children
    (limited duty)
    also: Mental deficiancy and physical disaility
    • standard of conduct= reasonable child like age intelligence and experience under like circumstances
    • children engaging in adult activities= required to conform to an adult standard of care
  25. Artificial Conditions Highly Dangerous to Known Trespassers
    • subject to liability for bodily harm caused to trespassers by failing to exercise R care to warn if: 1. possesor is aware of their proximity to it. 2. Trespasser will not discover it or realize the risk involved
    • Holder of easement or license=same liability
  26. Attractive Nuisance Liability to trespassing kids
    • liable to physical harm to trespassing children caused by artificial condition if: 1. kids are likely to trespass where condition exist
    • 2. condition creates an unreasonable risk of death or SBH
    • 3. Because of youth, kid doesnt discover the condition or realize the risk it presents.
    • 4. maintaining condition or eliminating danger are slight compared w. the risk to kids involved
    • 5. possesor fails to exercise R care to eliminate danger or to protect the kid
    • Natural bodies of water generally not included
    • Based on forseability of harm to kid, not attraction into property
    • Condition must pose unreasonable risk of serious harm in light of particlar childs age
  27. Foreabilty of Harm
    • liabilty only extends to forseeable consequences
    • D not relieved of liability simply because the extent of P's injuries are greater than could have been forseen (thin skull rule)
    • Because the MANNER in which the harm is brought about was unforeseeable (look to see if its the kindof harm to be expected from D's negligence)
  28. Red ipsa loquitur
    • only permiyts an inference of negligence
    • No DV can be allowed for D
    • D doesnt have to have exclusive control over instrumentally, The jury must infer that that injury resulted from D's negligence
    • Infered when: 1. Event ordnary occur w/out neg
    • 2. other resonsibilities causes are sufficiently eliminated by ev
    • 3. indicated neg is w/in scope of D's duty to P
    • D must fail to exercise such care as a R person in his position would have exercised; his conduct must be a breacjh of the duty to prevent the foreseeable risk of harm to anyone in P's position and this breach must cause P damages.
    • Conduct that falls below the standard established by law for the protection of others ahainst unreasonable ris of harm
    • Negligence may be either:
    • 1. an act that R person should reconized as involving an un R risk of causing an invasionvof interest of another
    • 2. Failure to act where a duty is owned
    • Duty+Breach+Causation+damages
  30. Private Necessity
    • Actor will be liable in damages for any harm caused to the property Qualified privilege not liable for trepass but liable for damage to property or chattel
    • Rule: Privileged to enter or remain on anothers land if it is or appears R necessary to prevent serious harm to: 1. the actor, or his land or 2. Landowner or 3rd party
  31. Public Necessity
    • may enter to avert an imminent public disaster
    • even if entry not neccessary entry privileged if the actor R believes its neccessary
    • Absolute defense- actor not liable for trespass or damage to property or chattel
  32. Recapture of Chattles
    • reasonable force allowed where taking is wrongful
    • 1. tortiously
    • 2. fraud or duress
    • 3. refusal to surrender or remove
    • peaceful means req where taking was rightful (no force) actor privileged to enter R upon anothers land to remove. Owner liable for damges caused by his entry ONLY if land belongs to innocent party
  33. Defense of Property
    • R force allowed not intended or likely to cause death or SBIT, if: 1. Intrusion not privilege or intentionally or negligently causes actor to believe its not privileged,
    • 2. Actor R believes that the intrusion can be prevented or terminated by only by force
  34. Defense of Others
    • Actor privileged to defend others from H or O contact under same conditions and by the same mean as those under and by which he is privileged to defend himself, if R or connect believe: 1. Circumstances give 3rd party privilege
    • 2. intervention is necessary for protection of 3rd peron
    • MINORITY 3rd party must actually have privilege
  35. Self Defense
    • Reasonablr force: actor may use force not intended or likely to cause death or SBH against: 1. unprivileged harmful or offensive contact or 2. other bodily harm that no R believes another is about to inflict
    • no duty to retreat
    • not liable to injuries to 3rd parties unless negligent or deliberate
    • if D is mistake as to the nedd of SD the privilege still exist
  36. Defense to Intentional Torts
    • 1.Consent
    • 2. Privilege
    • 3. Self-Defense
    • 4. Defense of other
    • 5. Defense of property
    • 6. Recapture of Chattels
    • 7. Forcible entry on Land
    • 8. Necessity
    • 9. Legal Process
    • 10. Arrest w.outwarrant
    • 11. Discipline
    • 12. Immunity
  37. Conversion
    • Intentional exercise of dominion or control over a chattel that seriously interferes w/ the right of another
    • damages= fair marjet value at time of conversion
    • Factors: 1. extent anf duration of D or C
    • 2. D's intent to asset right inconsistent w/ other
    • 3. D's good faith
    • 4. EXtent and duration of control
    • 5. Harm to chattel
    • 6. Inconvinience and expense caused to P
  38. Abatement Self Help
    • One has privilege to enter D's land and personally abate nuisance AFTER NOTICE call R action necessary even destruction of prop (proportional)
    • Public Nuisance only when it causes or threatens special damages to himself apart from gen pub, only to extent neessary to protect his own interest
  39. Negligence:
    Commercial Sellers
    • may be liable for failing to exercise R care in the inspection or sale of product prox causing harm to P
    • P must show the existence of the defect and that the defect would have beed discoverable upond R inspection
    • standard neg defenses apply warrantly of fitness: seller knows purpose of goods and buy relies on judgement warrantyof Merchantability- warrants that goods are generally aceptable and generally fit for ordinary purpose
  40. Products Liabilty Continued
    • use of disclaimers will not avert liability in S/L or neg
    • damage for personal ijury and prop
    • as a general rule neither a warning notice a post defect warning immunizes a manu. from liability
    • sending a recalll notice would not shift responsibility to 3rd party
    • can be a superceding cause if full responsibility and control of a sitution shifts to a 3rd party
  41. Products liabilty
    S/L for ellers of Defective Products
    • commercial suppliers at all levels,lessors,home developers, sellers of used goods
    • seller liable if: 1. engaged in the business of selling such products; 2. its expected to reach and does the user or consumer applies even when: 1. seller has exercised all possible care in preparation: 2. user or consumer hasnt entered into relationship w/ seller
    • Does not apply to occasonal seller of a product
    • applies to defective components of a product
    • suits apply to by standars and recover
    • MISUSE is not a defense
    • failure to warn may provide grounds
  42. Trespass to chattels
    • comitted by intentionally:
    • 1. Disposing another of the chattel
    • 2. Using or intermeddling w/ a chattel in possession a another
    • P must prove demages:
    • 1. actual amount caused
    • 2. if dispossessession loss of value
    • Mistake to legally no defense
  43. Trespass
    • one is subject to liability,irrespective of harm to legally protected interest of another if D INTENITIONALLY: 1. Enters land in possession of another or cause a thing or 3rd party
    • 2. remains on land; or (3) fais to remove a thing he has legal duty to do
    • intent to enter land sufficient (intent to trepass required)
    • MISTAKE to ownership no offense
    • P must have ACTUAL possession or the right to possessin
    • (Can be non tangible objects) may occur on beneath or above
  44. Defamation Defenses
    • 1. true statements
    • 2. statements in the course of judicial must bear relationsip to proceeding
    • 3. husband and wife conditionally privilege if R belief that Conditional Privileges: 1. stments in D's interes (bank revews); 2. stments in the interest of 3rd persons; 3. statements in the public interest
  45. Defamation
    • flase statement made about the P that is injuries to his rep
    • Libel= written- slander= spoken words
    • special harm not required except whrre extrinsic facts are required to established detamatory meaning private person: 1. knows statements is false and it defames; 2. reckless disregard for matters; 3. acts negligently in failing to ssert them (must prove actual injury)
    • Public person- one is subject to liability if he has knowledge that statement was false r acts w/ reck;ess disregard as to its truth or falsity
  46. Wrongful Death
    • directly compensates surviors for losses
    • pecuniary damages include: loss support loss of services loss of consortium but not pain and suffering
  47. Defenses to S/L
    • assumption of risk (knowledge and voluntary)
    • contributing neg (not a defense)
    • exception when P knowingly and unreasonably subjects himself to risk of harm from activity
  48. Public Nuisance
    Unreasonabe interference w/ aright common to the GP inccludes health,safty,peace,comfort and convience
  49. Private Nuisance
    • an interference w/ P's interest in the se and enjoyment of the land
    • only those withpossessory interest can chain
    • look at reasonableness unreasonablenss
  50. Nuisance Defense
    • 1. contrib neg
    • 2. assumption of risk
    • 3. coming to nuisance will not by itself bar action
    • 4. compliance w/ satute (D conduct consistent w/ stat)
  51. Scienter
    no basis to know if fact true and reliance
  52. Air Crafts
    • trespass only if:
    • 1. enters into the immediate reaches of the air space next to land
    • 2. interferes substantially with others use and enjoyment
  53. Consent
    • to be effective P must have capacity (or must be given by someone w/ authority
    • only effective for particular conduct and cscope it was givn
    • given by mistake is valid defense inless D knew or should have
    • Implied= implied by law or apparent from P's actions
  54. Privelege
    D has privilege and acts w/ in scope and priv exercised reasonably under circumstances
  55. The Reasonable Person
    R person in his position
  56. Intervening Force
    • D is liable for harm caused by foreseeable I.F;
    • 1. negligence of rescuers (not gross or wanton
    • 2. subsequent med malpractice
    • 3. subsequent disease: substained because of P's the impairment of P's health resulting for original injury
    • 4. efforts to protect person or property
    • 5. subsequent accident; if the original injury qas a substantial factor in causing the sencond accident
  57. Cosiderations on determining if a I.F is S.C
    • 1. its intervention brings a diff kind of harm
    • 2. its operation appear after the event to be extra ordinary and foreseeable
    • 3. the intervening force is operating independently of any situation created by the D's negligence
  58. Idemnity
    used to shft the entire loss from the party who was found liable to the actual wrongdoer whowas primarily responsible for the harm
  59. product defect
    sellers can be be strictly liable from harm resulting from the product being in a defective cndition unreasonably dangerous to the user or consumer or property
  60. strict liability (product defect
    • can be imposed on a person engaged in the business of sellers
    • can apply to every entity in the chain of distribution of the product
    • P must show that the defect existed at the time the product left D's hands

    tip: assume pure comparitive neg fault
  61. physician consent
    where patients consent is limited in some menner, the physician muct respect the patients wishes and will be liable for battery if the scope of the patients consent is exceeded
  62. injunction
    • in addition to granting injuction the court may give the following remedies:
    • 1. judgement for dmages
    • 2 recovery of property
    • 3. Declaratory judgement
  63. superseding cause
    • unforeseeable intervening cause that relieves the original tortfeasor from any further liability;
    • examples: 1. acts of god
    • 2. criminal acts of 3rd persons
    • 3. intentional torts of 3rd perons
    • 4. extraordinary forms of negligent conduct
    • D still liable for initial injury
  64. Misperesentation fraud/deceit
    • elements : 1. mis rep of material fact
    • 2. D knewwas false or reckless disregard for truths; 3. D intended for p to rely; 4. P justifiably relied; 5. actual damages resulted
    • no duty to disclose unless; 1. fiducing relation; 2. active concealment; 3. incomplete statements; 4. new inf
  65. wild animals
    • S/Llimited to harm resultng from a dangerous propensity that is characteristic of wild animal of the particular class or which the poseeor is aware
    • no S/L for domestic animals unless owner has scienter of dangerous propesity
  66. liability of lessors of land to person on land
    • lessor not liable to lessee or others for physical harm caused b dangerous conditions after has taken possession
    • when only a portion is leased lessor liable for commom areas
    • lessor has contracted by covenant to reapair; 2. disrepair created un R risk; 4. lessor fails to exercise R care to perform K
  67. respondent superior
    • emploter liable for tortious acts of employess acting w/in scope- futher employes business
    • independent contractors: employer not vicariously liable may be liable for IC: if 1. neg selecting insructing 2. non- delegable duties of the employer
  68. Assumption of Risk
    • P who voluntarily assumes risk of harm arising from neg or reckless conduct D cannot recover
    • can be implied or express
    • key elements: 1. knoweledge of risk (subjective standard
    • 2. Voluntar assumption (manifestation of consent to releive D of his dutyy
  69. Comparative Negligence
    • General rule= recovery reduced in proportion to fault
    • modified: some states P can recover id P's neg is not > D; Other states P can recover unless P's neg isnt > D
    • pure comparative neg- P can recover eben when neg is > D reduce by % of Ps neg
  70. " Last clear chance
    • Helpless P- one whose own neg. has pit him in a position of danger and canot R escape
    • 1. P is helpless; 2. D bcomes aware of Ps peril; 3. D fails to use R care to avoid accident
    • Inattentive P=not helpless one who is in positon of peril bcus hes not paying R attention to own saftey. Can recover if : 1. D is aware of Ps peril; 2. Time to avoid accident; 3. D fails to used R care to avoid A
  71. Contributing Neg.
    • conduct on part of P that falls below R standard that contributes w/ nef of D bringing harm to P
    • P who is 1% neg. is barred from recover
    • Not a defense to: intentional torts, willful misconduct or S/L
  72. Negligence Defenses
    • 1. contributer neg.
    • 2. last clear chance doc.
    • 3. comperative neg.
    • 4. assumption of risk
    • 5. immunity: 1.spovsal; 2. parent-child; 3. btwn siblings; 4. charitable immunity; 5. gov or sovereign; 6. gov officials
  73. Liability of passengers of lang to 3rd parties
    • simply hold the landowner to a duty of R under circumstances
    • the status of the plantiff and natur of entry are simply factore in determining foreseeable reasonableness
  74. immunity
    defenses given to D based upon relationship w/P
  75. POlice and Fireman
    generally treated as licenesees
  76. Forcible entry on Land
    wherw another has wrongfully entered on the land