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QuestionAnswer
3 general propositions for intentional torts 1. Extreme sensitivity NOT relevant 2. No incapacity defense 3. Intent is always an element
Elements of battery? 1. Harmful or offensive conduct 2. Contact w/ P's person
Elements of assault? 1. Apprehension (or reasonable apprehension) 2. of an IMMEDIATE battery
Elements of false imprisonment? 1. D commits an ACT OF RESTRAINT that 2. confines P within a BOUNDED AREA
Elements of intentional infliction of emotional distress? (1) outrageous conduct; (2) SEVERE distress
Elements of FRAUD? D lied [misrepresentation of fact] on purpose [deliberately or recklessly] with the goal of ripping P off [made to induce reliance], P fell for it [reliance], and P got screwed [economic damage].
What is a "defamatory statement"? A statement that tends to adversely affect one's reputation.
Damages in Defamation. If LIBEL (i.e. written), damages are presumed; If SLANDER ("s" is for spoken) and if SLANDER PER SE, P does not need to prove damages. If NOT slander per se, P must prove damages (which must be economic injury).
What are the requirements for using RES IPSA LOQUITOR? What are the consequences of using it? 1. P must demonstrate that accident is one NORMALLY ASSOCIATED with negligence 2. Accident is normally due to negligence of someone in the D's position. Consequences = Jury determines negligence
What constitutes "outrageous conduct"? Conduct that exceeds all bounds of decency tolerated in a civilized society. Hallmark of outrageous conduct ([1] continuous or repetitive conduct [2] common carriers or innkeepers [3] fragile class of persons [children, elderly, or pregnant women])
Elements of trespass to land? 1. Act of physical invasion; 2. Pltff is a possessor of land
Keys to establishing "act of invasion" requirement in trespass to land. Test can try to trick you regarding INTENT. [Ex: "buy a map"--D is hiking. No sign, no fence. D is still a trespasser.]
What is the difference between conversion and trespass to chattel? Key difference = degree of interference. Modest = trespass to chattels; significant = conversion. In conversion, P can recover full mkt value. In trespass, P can recover the rental value or cost of repair. Ex: keying the car hood vs. destroying it.
Is a parent vicariously liable under common law for the tortious conduct of his/her child? Gen not liable. In NY, there is a statutory exception but it's limited to modest dollar amts.
Would a "reasonable person" inform authorities of a child's violent propensity when the child runs away? Yes.
What constitutes an abnormally dangerous activity? Activity must [1] create FORESEEABLE RISK of SERIOUS HARM, even where reasonable care is exercised; [2] not a matter of COMMON USAGE in the community where D is located [Ex: cropdusting in central CA vs. scarsdale, NY]. NB: Safety precautions irrelevant.
What are the two types of comparative negligence? and How are they different? [1] pure and [2] partial/modified. Pure = go strictly on percentage of fault. Partial = if P is assigned more than 50% fault, NO RECOVERY in tort. NY is a "pure" state.
How are public and private figures treated differently in defamation cases? If P is a public figure, P must prove falsity and actual malice (ie knowledge of falsity or reckless disregard for truth). If P is a private figure (in a pub concern case), P must show negligence in investigating the claim
Dave lives with 9 year old son. D has a revolver which he keeps on his coffee table. The 9 yr old picks it up and shoots the neighbor. Is D vicariously liable? NO. Parents not vicariously liable for tortious acts of children. BUT Dave would be liable for his own negligence (b/c he kept the gun w/in easy reach of his child)
Three examples where vicarious liability could be confused with ordinary negligence [1] D leaves gun on his coffee table and his child picks it up and shoot neighbor; [2] D gives car keys to friend who is clearly drunk; [3] Delta hire person previously convicted for assault.
How can a plaintiff establish "physical invasion" in trespass to land cases? Demonstrate either (1) D entered P'sproperty (intentionally); or (2) D THREW a TANGIBLE OBJECT onto P's property.
Attractive Nuissance Doctrine Something on the land that lures the child in. Landowners are expected to take precautions to protect children from the hazard. [e.g. we have different expectations of homeowner w/ in-ground pool across from high school vs. next to a 2 yr old child]
Elements of products liability (1) merchant (2) defective (3) no alteration (4) foreseeable use
Design Defects "There exists a safer, practical, and cost-effective way to build the product." Practical means that alternative design cannot make the product more difficult to use.
Prod Liab for FAILURE TO WARN Think of it as an "information defect" (ie a design defect). If a prod has certain risks that cannot be physically eliminated in cost-effective way and of which consumer would not beaware, then to sell the prod w/o a warning would defectively designed.
To whom does one owe a duty of care in negligence? To foreseeable victims. If not a foreseeable victim, then one does not owe a duty of care to that person.
What is the "palsgraf principle? And what are its exceptions? Exceptions: [1] Rescuers; [2] In NY, there are 3 others relating to pre-natal injuries: (a) stillborn babies in pers inj cases [mother has coa but not baby]; (b) Dr's misdiagnoses of potential birth defects; (c) Dr's botched sterilization
How much care is owed under standard for negligence? Amt of care that would be given by a reasonably prudent person under similar circumstances
Does the duty of care provide allowances for D's personal characteristics such as stupidity or mental handicap? Not generally, but there are two exceptions: (1) physical characteristics (eg D is blind); (2) superior skill or knowledge [specialized training or knowledge of an isolated fact]
What situations could displace the "reasonably prudent" person standard? [1] D is a child; [2] professionals; [3] land possessors [4] negligence per se; [5] duty to act affirmatively; [6] negligent infliction of emotional distress.
Negligent infliction of emotional distress. NY: Plf has to be w/in the "ZONE OF DANGER" at the time of the injury AND be an IMMEDIATE member of the family.
Negligent infliction of emotional distress. Why think of it as a duty problem? In all 3 applicable scenarios, you must find that D violated another standard of care: 1) Near miss; 2)Bystander claim 3)Preexisting relationship [e.g. Dr-Patient]
Assumption of Risk Look for 1) P had knowledge and appreciation of risk; 2)P takes on risk voluntarily.
Assumption of Risk under NY Law Analyze assumption of risk as a duty issue. Could be a complete bar to recovery. Otherwise CPLR refers to plaintiffs "culpable conduct" which could include assumption of risk.
Elements of defamation (IPP)-P must prove that D made a defamatory statement specifically IDENTIFYING P, that the statement was PUBLISHED, and that P suffered DAMAGES (maybe). A "defamatory" statement is one that tends to adversely affect the reputation of the plaintiff.
Qualified privilege in defamation Arises based on when the speech is made. When there is a strong social interest in encouraging candor. Limitations: D must have reasonable belief that the statement is accurate, and confined to relevant matters.
Affirmative defenses in defamation Consent, Truth, Privilege (Absolute or Qualified)
Absolute privilege in defamation Function of who D is. 1) Spouses talking to each other; 2) Govt officers engaged in official duties.
Created by: mdiaz367