What are the elements of defamation?
(1) Defamatory language
(2) related / directed / about the plaintiff
(3) which is published
(4) causing reputational damage
What are the additional elements of defamation when a public figure is involved?
(1) the statements are inaccurate, false, untrue
(2) the defendant's behavior was misconduct
What is negligence per se?
Breach is assumed when the standard of care is set by statute and violated.
What are the elements necessary for negligence per se?
(1) Statute on point exists
(2) defendant violated that statute
(3) caused type of harm contemplated in statute, intended to protect against
(4) plaintiff was in the class of protected by statute
(5) violation of law was proximate cause
What is battery?
An intentional, harmful or offensive contact, with the body of another or items connected to their body.
What are the elements of false imprisonment?
(1) Intent
(2) to act or fail to act (omission)
(3) that causes a person/people to be confined
(4) in a defined and specific area
What are the elements of Intentional Infliction of Emotional Harm? (IIED)
(1) Extreme and outrageous conduct
(2) that causes severe emotional distress in the victim
Note: Physical symptoms are not required.
What are the elements for Trespass to Land?
(1) a physical intrusion
(2) on, over, under, the plaintiff's land
(3) intent to commit the act that resulted in intrusion.
Note: intent to commit trespass is not needed, only intent to commit the act resulting in trespass.
What are the elements of trespass to chattels?
(1) intent on the part of the defendant
(2) that substantially damages
and
(3) interferes with the owner's rights in the personal property (chattels)
What are the elements of conversion?
How is conversion different than trespass to chattels?
The severity of the damage and interference is higher with conversion.
What is transferred intent?
An intentional act causing substantial damage, loss, interference with the personal property (chattel) of another
Note: intent to cause substantial damage, loss, interference is not necessary, only the intent to commit the act causing it.
Intent is implied when an act or omission causes damages to a 3rd party that was not intended by the defendant.
To what crimes does transferred intent apply?
(1) trespass to chattels
(2) battery
(3) assault
(4) false imprisonment
(5) land trespass
What is the proper remedy for conversion?
Damages equal to the complete value of the chattel at the time of the conversion
When is defense of one's self, property, or other people allowed?
(1) the defender reasonably believes that an act will damage, harm, deprive
(2) the person, property, 3rd party, or chattel
Is deadly force allowed to protect one's self or another person?
Yes, if there is a reasonable apprehension of great bodily harm or death
Is deadly force allowed to protect property or chattels?
Never.
What is the defense of necessity?
Necessity is a complete defense against the use / damage (any tort) against the property of another.
What are the types of the necessity defense?
(1) Private: act was done to protect only the defendant or defendant's associations
(2) Public: act was done to protect the public at large
What effect does necessity have on the right to defend?
Necessity eliminates the right to defend.
What are a land owner's duties to protect a trespasser?
Where an owner discovers a trespasser, there is a duty to warn / make safe known and manmade dangerous conditions (death traps)
Note: there is no duty to protect undiscovered trespassers
What are a land owner's duties to protect a invitee?
(1) duty to reasonably inspect
(2) make safe and warn about all known man-made and natural hazards
What are a land owner's duties to protect a licensee?
Duty to warn and make safe all known man-made and natural dangerous conditions.
What is res ipsa loquitor?
Breach is implied when
The damages caused are of the type that would not happen without negligence.
Note: usually occurs when the defendant has exclusive control of the situation.
What is partial comparative negligence?
The plaintiff may recover damages, but reduced by the % of the plaintiff's own fault.
What is partial comparative negligence?
The plaintiff may only recover damages if the plaintiff's own negligence is less than or equal to a statutory percentage, usually 50%.
Example: If a plaintiff is 75% at fault and the statutory percentage is 50%, the plaintiff cannot recover anything.
What is contributory negligence?
A plaintiff may not recover if they were at fault in any way.
The standard by which fault is measured is the reasonable person standard.
In what instance is contributory negligence never a defense?
Intentional torts.
What is assumption of risk?
A complete defense that arises when the plaintiff knew of the risk and still engaged in an act causing injury.
In what instances does strict liability apply?
(1) wild animals
(2) abnormally dangerous activities creating a foreseeable risk
(3) statutorily imposed instances
When does products liability apply?
When a commercial entity provides products that are defective and dangerous to the buyer or others.
What is nuisance?
A tort causing an interference with property rights
What is the standard for a private nuisance?
Whether the defendant caused a substantial interference with an owner's use and or enjoyment of their land.
What is the standard for a public nuisance?
Whether the defendant caused a substantial interference with a community's rights.
What types of remedies are available for nuisance?
(1) damages
(2) injunction
What is joint and several liability?
2 or more torts by 2 or more actors proximately cause damages to the plaintiff.
In such instances any single tortfeasor may be held liable for all the damages.
What is contribution?
Under joint and several liability, a joint tortfeasor held liable for all the damages make seek proportional contribution from other tortfeasors.
What are the elements of conversion?
(1) an act causing interference with personal property (chattels)
(2) intent to commit act (note: this is not intent to create interference)
(3) cause
(4) damage
What is extortion?
Using threats of financial, physical, or other types of harm, presently or in the future, to wrongfully obtain the property of another.
The property need not be taken from the plaintiff's immediate presence.
Brief summary of products liability elements?
(1) Commercial seller
(2) Product was defective when it left the control of said commercial seller
(3) cause
(4) harm
Prima Facie case of battery?
(1) defendant acted
(2) and caused an offensive / harmful touching
(3) defendant intended the act
By what standard is intent measured in a battery case?
Whether the harmful or offensive touching would occur with substantial certainty
What is the standard by which intent is analyzed in a intential infliction of emotional harm case?
Whether there was a high likelihood that the defendant's acts would cause emotional distress.
Is mistake a defense to trespass to land?
No. The standard is intent to commit the act that resulted in trespass. As such, a mistake is not a defense.
What are the elements of an attractive nuisance?
(1) there exists a dangerous condition on the land of an owner
(2) the owner is aware that the condition may attract children who may trespass
(3) the condition is a dangerous as the result of the child's lack of capacity to comprehend / understand the danger
(4) the price to fix the condition is substantially low when compared to the risk.
Elements of negligent misrepresentation?
(1) the defendant is a commercial or business entity, or a professional
(2) that breached a duty of care to the plaintiff
(3) that resulted in the plaintiff's reasonable / justifiable reliance
(4) damages
Elements of intentional misrepresentation?
(1) the defendant knowingly or recklessly misrepresented material facts
(2) defendant intended that the plaintiff rely on the misrepresentation
(3) the plaintiff's reliance was reasonable / justifiable
(4) damages
What is wrongful birth?
A tort action (by the parents) that occurs when a healthcare practitioner fails to warn the parents that they could have a baby that is "congenitally diseased."
What is wrongful life?
A child sues a healthcare practitioner in tort for negligently misidentifying or misdiagnosing a condition that resulted in sever birth defects.
Are punitive damages available in a negligence action?
No
Are punitive damages available in a battery action?
Yes
Are punitive damages available in a recklessness action?
Yes
Are punitive damages available in assault action?
Yes
What are the 2 primary elements of negligent infliction of emotional distress?
(1) the plaintiff was in the zone of danger
AND
(2) physical symptoms occur.
Exception: the mishandling of a relative's corpse is still negligent infliction of emotional distress.
Invasion of privacy elements?
(1) intrusion into private affairs / seclusion
(2) intrusion is reasonably seen as highly offensive
(3) the affairs / seclusion was actually private / unknown to the public
Elements of false light?
(1) publication
(2) of facts or assertions relating to the plaintiff
(3) that cause the public to see the plaintiff in "false light"
(4) and the "false light" is highly offensive (reasonable person standard applied)
When is negligent infliction of emotional distress available to a by standard?
(1) closely related to the victim
(2) physically present when injury occurred
(3) plaintiff personally saw or perceived
What is the big exception to strict products liability? Who can't be sued under strict products liability?
One-time commercial sellers
Note: they can still be subject to a negligence claim.
What is malicious prosecution?
(1) The defendant initiates criminal proceedings against the plaintiff
(2) for improper / tortious purposes
(3) without probable cause
(4) the criminal proceedings end without a conviction or a negative impact to the plaintiff
(5) damages
Differentiate comparative and contributory negligence?
Contributory: if the plaintiff is at fault to any extent, they cannot recover
Comparative: damages are awarded proportionally in accordance with fault
When is a defamation case totally invalid?
When the party being defamed is deceased. They must be alive for a defamation case to be valid.
Intentional Infliction of Emotional Harm v. Negligent Infliction of Emotional Harm: Which requires physical symptoms?
Intentional: Does not require physical symptoms, just severe emotional distress.
Negligent: Generally requires physical symptoms (minority of states hold otherwise)
Elements of defamation?
(1) defamatory statement directed at the plaintiff 2) Published t 3) Damage to reputation 4) False 5) Fault the part of the defendant
What is the standard for a plaintiff suing for negligence when a defective product has caused injury?
The defect causing injury would have been discovered with reasonable inspection.
What is the standard for a plaintiff suing in strict liability when a defective product has caused injury?
Just that the commercial entity sold a defective product, and the defect caused injury. Inspection is irrelevant.
Define respondeat superior?
An employer may be held liable for the tortious acts of an employee occurring within the scope of that employee's employment.