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MRD3671-to
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| Question | Answer |
|---|---|
| 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
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