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PRE Torts

MBE Preview

Transferred intent 1. Assault, 2. Batter, 3. False imprisonment, 3. Trespass to land, and 4. Trespass to chattels From person to person, or tort to tort
Damages required 1. Intentional infliction of emotional distress, 2. Trespass to chattels, and 3. Conversion
Assault Act intended to cause reasonable apprehension (expectation) of imminent contact Apprehension = Intended harmful contact Battery can be transferred to assault
Battery Act intended to cause harmful or offensive contact to P or his person (no actual contact, but object connected to person, e.g. chair/bike/dog on walk with owner) Nominal recovery for battery (not negligence)
Acting in concert Creating joint and several liability among all actors Actors must have exclusive control causing harm Must prove concerted action between all Ds
False imprisonment Act by D, intended to confine P in fixed boundaries P must be conscious or harmed by confinement Time of confinement is irrelevant
Intentional infliction of emotional distress Extreme and outrageous conduct (beyond bounds of common decency), intended to cause severe emotional distress Damages required (not just physical harm) Fall back tort, so prove obvious tort first
Private necessity defense Privilege to interfere with real or personal property of another where reasonably necessary to avert reasonable harm Qualified privilege = NO liability for trespass, but YES liability for damages
Conversion Act of dominion and control, intended to cause serious interference with P right to immediate possession Remedy- full value at time of conversion Lost, destroyed, or stolen NEED- tortuous intent (intended consequence of act) Mistake is no defe
Negligence 1. Duty, 2. Breach, 3. Actual cause (but-for), 4. Proximate cause, and 5. Damages If D- want cut off liability goes up so argue duty before proximate cause If P- want impose liability so go down so argue proximate cause before duty
Negligence- Duty D owes ordinary duty to exercise reasonable care under circumstances Test- objective- Reasonable person standard
Negligence- Duty exceptions Physical disability: May be considered so duty changes to duty of reasonable care for a person with that disability Mental deficiency: May NOT be considered so reasonable person standard (stupidity = no excuse)
Negligence- Duty to act G/R: No legal duty to act Caveat: Once D undertakes to give aid, must do so with reasonable care Exception: Doctor/nurse is NOT held liable for ordinary negligence unless acts wanton or reckless
Negligence- Duty to act in an emergency Duty to act as a reasonable person under emergency conditions
Negligence- Rescue doctrine Independent duty of care owed to rescuee, therefore NOT liable to P if rescue negligently causing further harm, unless acting wantonly or recklessly Rescuer may recover if injured during rescue
Directed verdicts P motion generally denied But, look to both motions
Negligence- Duty to act- Conduct of 3rd parties G/R: No duty to control conduct of 3rd parties, unless authority and actual ability to control 3rd party AND knows of need to do so
Negligence- Duty to act- Conduct of 3rd parties Respondent Superior Master is vicariously liable of NEGLIGENT act of servant committed within the scope of employment
Negligence- Duty owed to person coming onto land Obvious conditions Unknown trespasser= NO duty Known trespasser= Duty to warn of KNOWN, DANGEROUS, ARTIFICIAL conditions Social guest (invitee, includes police and fireman)= Duty to warn of KNOWN, DANGEROUS, NATURAL, and ARTIFICIAL conditions
Negligence- Duty owed to person coming onto land Attractive nuisance doctrine Liability for harm to trespassing children if- 1. Artificial, dangerous condition on land, 2. Possessor knows or should know child likely to trespass, 3. Child because of age (immaturity) fails to realize danger or appreciate risk, and
Negligence- Duty owed to person coming onto land Attractive nuisance doctrine continued... 4. Utility of maintaining condition slight when compared to risk Subjective test
Negligence per se Breach of statutory duty of are creating presumption of negligence Defenses- 1. Compliance causes more danger than violation, and 2. D confronted with emergency beyond control
Comparative negligence (majority) P recovery is reduced by percentage of fault attributable to P Liable for full amount (seek contribution) Assumption of recovery not matter what percentage of fault Jurisdiction may modify- P must be less than 50% at fault Last clear chance= a
Comparative negligence (majority)- Joint and several liability 2 or more forces combined produce one indivisible harm so each tortfeasor is liable for full amount of P's harm
Contributory negligence (minority) G/R: P's contributory negligence bars recovery, unless D is more at fault than P by being reckless or wanton Last clear chance= Negligent P avoids liability where D had last clear chance to avoid P harm and did NOT do so, unless, P acted reckless/wanto
Products liability general rule G/R: Commercial seller strictly liable for any defective condition that is unreasonably dangerous and exists at time of sale
Products liability P, D, and damages Who P? Any foreseeable user, consumer, or bystander (no privity required) Class of D? Any commercial seller (distributor, whole saler, etc.) Damages- Personal injury and property loss, but NOT economic loss
Products liability defenses 1. Assumption of risk (not contributor negligence) 2. Product misuse (Reasonable misuse is foreseeable) 3. Adequate warnings (Not always clear, conspicuous, prominently displayed)
Products liability design defect Prove if seller is aware a reasonable economic alternative exists Danger is not apparent until product reaches the public, or else no reason for alternative design if unknown
Strict liability Breach of absolute duty of care, proximately causing harm to P No negligence
Strict liability 1. Abnormally dangerous activities (P harm results from abnormal propensity from abnormally dangerous activity), 2. Ultra hazardous activities, 3. Wild animals
Defamation to privacy 1. Defamatory statement of facts, NOT opinion, 2. Publication to any 3rd person who reasonably understands, 3. Damages- a. General injury to reputation (presumed) b. Special pecuniary loss (not required in lible/slander per se)
Defamation to privacy continued... 4. P has to prove fault AND falsity a. Public official/figure= Must establish malice (knowing falsity or reckless disregard for truth) b. Private person= Public (establish negligence), OR Private concern (just prove publicati
Defamation to privacy defenses 5. a. Truth b. Privilege i. Qualified, or ii. Absolute No negligence if public official P
Privacy action 1. Commercial appropriation, 2. False light privacy, 3. Public disclosure of private facts, 4. Inclusion on seclusion (true privacy action) Publication required for first 3 Truth is NO defense Special damages NOT required Do NOT survive
Privacy action- Commercial appropriation Appropriation of P name or likeness without consent to advertise a service or product
Private nuisance Substantial and unreasonable interference with P's use and enjoyment of his property "Coming to nuisance" is only one of many factors to consider
Created by: dmoore147
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