1L Tort Law

Duty Owed by Lessees and Lessors of Land:

A lessee is a land occupier and has the same liabilities that any land occupier would have. A landlord owes no duty to a person coming onto land with the consent of the lessee, with the following exceptions: 1) owes a duty if a danger exists at the start of the lease which the lessor knows or should know about and which the lessee has no reason to know about; 2) duty to inspect for and repair dangerous conditions, if he knows the lessee will hold the land open to the public; 3) duty to use reasonable care to make common areas safe; 4) duty to keep the premises in good repair if that is part of the lease contract; 5) duty if he begins repairs and performs them unreasonably or does not finish them; 6) general duty of care in some jurisdictions.

(Duty) Licensee:

A licensee is a person who enters property with the express or implied permission of the land occupier. Such entry is not for the purpose of doing business. Keywords: 1. enters real property of another 2. express or implied consent 3. entry is not for business purpose

(Def. to Int. Tort) Defense of Defense of Property:

A person may use reasonable force that is not likely to cause death or serious bodily harm to protect his or her possession of real or personal property against an apparent trespasser. Keywords: 1. defendant acts to protect his property from being taken 2. taking was apparently trespassory 3. degree of force used was objectively reasonable and not life-threatening

(Def. to Int. Tort) Recapture of Chattel Aspect:

A person may use reasonable force to defend against his or her chattel being taken only if the taking of the chattel was wrongful or tortious, the recapturing person is in fresh pursuit, and the degree of force is not likely to cause death or serious bodily harm. Keywords: 1. defendant's chattel has been taken 2. taking was wrongful or tortious 3. defendant is in fresh pursuit 4. defendant acts to regain his property 5. degree of force was a. objectively reasonable and b. not life-threatening or likely to cause serious bodily harm

(Def. to Int. Tort) Re-entry Upon Land Aspect:

A person may use reasonable force to re-enter real property only if the taking of the property was tortious or wrongful and the re-entering party is entitled to immediate possession. Ordinarily, a demand must be made for the occupier to vacate unless such a demand would be a total exercise in futility. Only force not likely to cause death or serious bodily harm may be used. Keywords: 1. defendant's real property has been taken by another 2. taking was wrongful or tortious 3. defendant made a demand for the property to be vacated (unless futile) 4. defendant acts to retake possession 5. degree of force was a. objectively reasonable and b. not life-threatening or likely to cause serious bodily harm

(Duty) Duty Owed by a Good Samaritan:

A person who embarks upon the performance of services for another, whether gratuitously or for consideration, is under a duty to render those services with due care. This person, however, is under no duty to complete the performance of the services unless abandonment would prejudice the other party's position. The rendering of aid in an emergency constitutes the performance of services, and a duty of care is imposed upon those who undertake to render such aid. Some jurisdictions have enacted statutes designed to encourage physicians to render emergency aid, by limiting the liability that could otherwise be imposed upon them. Generally speaking, liability can be imposed upon them only for reckless or wanton misconduct. Keywords: 1. person rendering services owes a duty of care to recipient of services 2. abandonment is allowed unless it results in prejudice to the other party's position

(Def. to Int. Tort) Defense of Defense of Others:

A person who reasonably believes another to be threatened with immediate bodily harm may use whatever degree of force is apparently necessary to protect the personal safety of the other person. Keywords: 1. objectively reasonable belief of threat to another of immediate bodily harm 2. degree of force is apparently necessary

(Def. to Int. Tort) Defense of Self-Defense:

A person who reasonably believes himself to be threatened with immediate bodily harm may use whatever degree of force is apparently necessary to protect himself. If the attack is with so-called "deadly force" the majority rule is that the one attacked may defend with "deadly force" if deemed reasonable under the circumstances. The minority rule requires that the one attacked retreat if there is a safe means of doing so, unless the victim of the attack is in his "castle"(i.e., home). Keywords: 1. objectively reasonable belief of threat to self of immediate bodily harm 2. degree of force is apparently necessary

(Duty) Duty Owed to a Person Injured by a Drunk Driver

A person who serves alcoholic beverages to one who is intoxicated is not, in the absence of a statute stating otherwise, liable for the damages done by the intoxicated person. However, in those jurisdictions which have statutes traditionally referred to as dram shop acts, an owner, a bartender or other persons serving alcoholic beverages to a person who is intoxicated can be held liable for the foreseeable damages caused by the intoxicated person. Keywords: 1. no duty to avoid serving alcohol, even if recipient is intoxicated 2. exception: under dram shop acts, persons serving alcohol owe a duty of care to those injured by one who is intoxicated

(Duty) Duty Owed to a Rescuer:

A person whose negligence creates a situation in which he needs to be rescued may be held liable for injuries incurred by his rescuer. Keywords: 1. a person who creates situation in which rescue is needed owes a duty to rescuer

(Def. to Int. Tort) Defense of Prevention of Crime:

A person, whether a police officer or a private person, may use reasonable force to prevent the commission of a crime which is apparently being attempted in his or her presence. Keywords: 1. reasonable belief that a crime is being committed in defendant's presence 2. defendant acted to prevent the crime 3. degree of force used was objectively reasonable

(Dam.) Negligent Infliction of Emotional Distress:

A plaintiff may recover damages for negligent infliction of emotional distress if there was a physical impact to the plaintiff's person, or if the plaintiff physically manifests emotional distress caused by either the defendant's endangerment of the plaintiff who was within the zone of danger, or by the defendant's injuring of the plaintiff's close relative while the plaintiff was present and aware of the injury happening. Keywords: 1. if physical impact to plaintiff: emotional distress presumed 2. if no physical impact to plaintiff: a. plaintiff physically manifests emotional distress, and b. i. plaintiff was in zone of danger or ii. plaintiff was present and aware during injury of close relative

(Duty) Public Invitee:

A public invitee enters property in the possession of another for the purpose for which the property is held open to the public. It is not required that a business purpose be involved. Public employees acting within the scope of their official duties are included in the category of public invitees. Keywords: 1. enters real property which is open to public 2. for purpose land is open 3. no business purpose required

Defamatory:

A statement is defamatory if it holds one up to hatred, contempt, disgrace, ridicule, or causes shunning or damage in occupation.

Successive Tortfeasors:

A successive tortfeasor is one whose negligence follows an initial injury and adds to, or aggravates, the existing injury. Under the rules of proximate causation, if the second tortfeasor's negligent act did not break the chain of causation set in motion by the first tortfeasor, then the first tortfeasor can be held liable for both acts. However, if the second tortfeasor's negligent act did break the chain of proximate causation, the first tortfeasor can only be held liable for his own negligence. Keywords: 1. two or more negligent acts, one following the other 2. first tortfeasor may be held liable for the added or aggravated injury caused by the second tortfeasor when the second tortfeasor's negligence resulted from a dependent intervening act

Superseding Cause:

A superseding cause is an intervening act which is sufficient to prevent the defendant's negligent act from being determined to be the proximate cause of the plaintiff's injury. Thus a superseding cause relieves the defendant of liability. Generally, only an unforeseeable independent intervening act or a highly unforeseeable dependent intervening act will break the chain of causation and be established as a superseding cause. Keywords: 1. intervening act 2. sufficient to break chain of causation, thus relieving defendant from liability

(Vic. Lia.) Scope of Employment:

A tort is committed within the scope of employment when the employee was acting with an intent to further his employer's business interests, even if the employee acted indirectly or unwisely, and even if the employer forbade the employee from such an act. Keywords: 1. employee commits act 2. intent of employee is to further employer's business interests

(Duty) Trespasser:

A trespasser is someone who enters the real property of another without express or implied consent. Keywords: 1. enters real property of another 2. no consent

Actual Cause or Cause in Fact:

An actual cause is the cause which starts, ignites or makes possible the result which follows, and which satisfies the "But For" or Substantial Factor Test. Keywords: 1. starts or ignites chain of events 2. satisfies "But For" or Substantial Factor Test

Special Damages for Defamation:

As the term is used in the law of defamation, special damages are those of a pecuniary nature, such as loss of a job or loss of customers or business. Keywords: 1. pecuniary damages, such as loss of a job, customers, or business

Intentional Torts:

Assault Battery False Imprisonment IIED Trespass to Land Trespass to Chattel Conversion

(Int.Tort) Assault:

Assault is the intentional threatening of another with battery and the creating of reasonable apprehension of immediate bodily harm in the victim. Key words: 1. intentional 2. threat of battery 3. creating reasonable apprehension of immediate bodily harm

Husband-Wife Immunity:

At common law, husband-wife immunity prevented one spouse from maintaining an action against the other. It was argued that such suits between spouses would disrupt domestic tranquillity. Modernly, husband-wife immunity does not exist in most jurisdictions. Keywords: 1. spouses cannot sue each other 2. rationale: preserve domestic tranquility

Pre-Natal Injuries:

At common law, pre-natal injuries could not be the basis of a suit by a child against a tortfeasor. It is now generally held that the child, if born alive, should not be denied a cause of action merely because the injury occurred prior to birth. However, in some jurisdictions, the child must have been viable at the time of the injury, that is, capable of living independently of the mother. Keywords: 1. child is born with an injury caused while in utero 2. child can bring suit after birth

Concurrent Tortfeasors:

Concurrent tortfeasors consist of two or more persons who are not acting in concert with each other but whose acts combine to produce a single indivisible injury to the plaintiff. In some jurisdictions, joint and several liability is applied in a pure form, holding each concurrent tortfeasor liable for the full amount of the harm. However, a majority of jurisdictions will apportion damages by using a comparative fault system. Vicarious liability does not apply. Keywords: 1. two or more persons 2. act independently of each other, but produce a single injury 3. joint and several liability is imposed

Contribution:

Contribution relates to a claim by one concurrent tortfeasor against another concurrent tortfeasor, requesting reimbursement of the other's proportional share of a court judgment. It is typically used after joint and several liability has been found and one defendant has had to pay the plaintiff more than his pro rata share of the damages. Keywords: 1. claim brought by one concurrent tortfeasor against other concurrent tortfeasors 2. seeks reimbursement for pro rata share of judgment

(Int.Tort) Conversion:

Conversion is an intentional assumption of dominion and control over the chattel of another, resulting in a substantial interference with the plaintiff's possessory rights. Keywords: 1. intentional 2. dominion and control of a chattel 3. possessed by another 4. substantial interference with possessory rights

Defenses - Crazy, Silly, Double, Dealing, Dirty, Dog, Leave, Right, Now, Never, Return, Ever

Crazy Silly Double Dealing Dirty Dog Leave Right Now Never Return Ever Consent Self Defense Defense of Others Defense of Property Discipline Detention for Investigation Legal Authority Reentry of Land Necessity (public) Necessity (private) Recapture of Chattel Entry to Abate a Nuisance

(Duty) Andrews Rule on Duty:

In the Palsgraf case, Justice Andrews gave a dissenting opinion which has been applied as the majority opinion in other cases. Andrews argued that if the defendant owes a duty to anyone, then he owes a duty to everyone who could foreseeably be injured by his action. Thus, Cardozo looked at the issue from a perspective of identifying whether a duty is owed, while Andrews considered the issue as one of proximate causation. Keywords: 1. liability imposed upon defendant for any harm proximately caused by defendant's act

MacPherson v. Buick:

In the landmark case of MacPherson v. Buick, Justice Cardozo dispensed with the previously applied requirement of privity of contract in products liability cases and extended the manufacturer's duty of care to include the ultimate consumer of the product, whether or not the consumer was the actual purchaser of the product. Later cases extended the duty to include not just the purchaser or the ultimate consumer, but to include all persons and property likely to be endangered by the product's probable use, such as the consumer's family or guests, or even near bystanders. Keywords: 1. privity of contract no longer required in products liability cases 2. MacPherson case extended duty to ultimate consumer 3. later cases extended duty to all who could be foreseeably harmed

Indemnity:

Indemnity is a shifting of the liability from a defendant who is only secondarily or vicariously liable to the party who is primarily liable. Where it applies, indemnification allows the secondarily or vicariously liable defendant who has paid a court judgment to obtain full reimbursement the from party who is primarily liable. Some jurisdictions, including California, have adopted a rule of partial indemnity on the basis of relative fault of the parties. Keywords: 1. defendant paid a judgment to the plaintiff, and a. defendant was found secondarily liable and paid the judgment for which another is primarily liable, or b. defendant was held vicariously liable and paid the judgment for another's tortious act 2. defendant seeks reimbursement from the tortfeasor

Inducement:

Inducement is the extrinsic facts necessary to understand the defamation.

Innuendo:

Innuendo is the connection between the inducement and the defamation which explains why the statement is defamatory.

(Int.Tort) Intentional Infliction of Mental Distress:

Intentional infliction of mental (or emotional) distress, is the intentional causing of severe emotional or mental distress in another through extreme and outrageous conduct. Keywords: 1. intentional 2. causing another person severe emotional or mental distress 3. extreme and outrageous conduct

Interference With an Economic Relationship:

Interference with Economic Relationship is a broad cause of action alleging an intentional interference with one's business relationships. Included are interferences with contractual relationships, expected commercial relationships, and intimidation of employees, clients, etc. To prevail, the plaintiff must prove that the defendant intentionally and unlawfully interfered with the plaintiff's business or enterprise, and that the defendant's act resulted in commercial or economic harm to the plaintiff. Key words: 1. plaintiff had a business or economic interest with a third party 2. defendant knew of that interest 3. defendant acted intentionally to disrupt the relationship 4. plaintiff proves economic harm

Interference With a Prospective Advantage:

Interference with a Prospective Advantage is a form of Interference with Economic Relationship. The difference between this tort and Interference with Contractual Relationship is that there is no contract required to prevail in an action for Interference with a Prospective Advantage. The plaintiff need only prove that there was a current or potential business relationship about which the defendant had knowledge, and that the defendant intentionally disrupted that relationship, causing economic harm to the plaintiff. Key words: 1. plaintiff had an economic relationship with a third party which included a. potential economic benefit to the plaintiff 2. knowledge of the relationship by the defendant 3. defendant acted to disrupt the relationship 4. plaintiff proves economic harm

Survival Statutes:

Survival statutes allow a decedent's pre-existing cause of action against another to continue after the death of the parties originally involved. At common law, the death of either party to a lawsuit prior to judgment for whatever reason, terminated all tort causes of action, except in the case of torts involving personal property. Keywords: 1. decedent was involved in a lawsuit at time of death 2. suit may continue despite the death of a party

"But For" Test:

The "But For" Test is used to establish actual cause. To apply the test, the plaintiff must show that but for the defendant's act, the plaintiff would not have been injured. Keywords: 1. used to establish actual cause 2. but for defendant's act, plaintiff would not have been injured

Applying the "But For" Test to Multiple Acts:

The "But For" Test may be applied where concurrent acts together produce an injury which would not have occurred but for the concurrence. Where the concurrent acts are performed by different persons, both persons are liable as concurrent tortfeasors. Keywords: 1. two or more concurrent acts produce one injury 2. but for the concurrence of acts, the injury would not have occurred 3. joint and several liability is imposed

(Duty) Attractive Nuisance Doctrine:

The Attractive Nuisance Doctrine, recognized in most jurisdictions, imposes a duty upon land occupiers for the protection of young children whose trespasses are to be anticipated and whose immaturity renders them particularly susceptible to injury from dangerous conditions on the land. The land occupier owes a duty of reasonable care to eliminate a danger or to otherwise protect children when the following elements are present: 1) foreseeability of trespass, 2) foreseeability of serious harm, 3) the child is unaware of the danger, and 4) the benefit to the owner of maintaining the condition in its dangerous form is slight when weighed against the risk to children.

Fair Comment Privilege:

The Fair Comment Privilege is a common law rule derived from the First Amendment rights of free speech and free press. The privilege applies to statements of opinion which have been made in good faith on matters of public interest. Covered by this privilege are opinions about newsworthy persons, events, products, art, works, etc. Key words: 1. good faith opinion 2. on matters of public opinion

Substantial Certainty Doctrine:

The Substantial Certainty Doctrine holds that if the defendant does an act with the knowledge that it is substantially certain to produce a particular result, the defendant is deemed to have intended the result and is liable for his act. Keywords: 1. defendant acts 2. defendant knows his act is substantially certain to produce result

(Duty) Duty Owed to an Invitee:

A land occupier owes a duty of ordinary care to invitees, which includes reasonably inspecting the land for dangerous conditions and repairing those dangerous conditions which a reasonable inspection would reveal. Keywords: 1. land occupier owes duty of care to invitee: a. inspect land b. repair dangerous conditions

(Duty) Natural Conditions:

A land occupier traditionally owed no duty to others for the care of natural conditions on the occupied property. However, the recent trend may be to impose a duty of reasonable care as to natural conditions, at least in those situations where the condition is known to the landowner. Keywords: 1. traditional rule: land occupier owes no duty to care for, repair, or warn of dangers related to natural conditions 2. recent trend: duty may be owed to give reasonable care for safety of others related to natural conditions

(Duty) Duty Owed to a Licensee:

A landowner owes a duty of ordinary care to licensees, which includes either 1) warning licensees of known dangerous conditions, unless they are obvious or already known to the licensee, or 2) repairing dangerous conditions to make the property safe. Keywords: 1. land occupier owes duty to licensee: a. warn of dangerous conditions known to occupier and not known to licensee, unless obvious, or b. repair dangerous condition

(Duty) Duty Owed to a Trespasser:

The land occupier generally owes no duty of care to the trespasser unless the trespasser is a constant trespasser upon a limited area or a child to whom the Attractive Nuisance Doctrine applies. Keywords: 1. land occupier owes no duty to trespasser 2. exceptions: a. constant trespasser upon a limited area b. Attractive Nuisance Doctrine

(Duty) Duty Owed to a Constant Trespasser Upon a Limited Area:

The land occupier owes a duty to a constant trespasser upon a limited area of warning him of known dangerous artificial conditions unless such conditions are obvious. Keywords: 1. land occupier owes duty to constant trespasser upon a limited area: a. warn of dangerous artificial conditions known to land occupier unless obvious

(Duty) Duty Owed to a Person Off the Premises:

The land occupier owes a duty to maintain the premises in a reasonably safe condition for the protection of passersby and occupiers of adjoining premises. This includes the duty of inspection to discover and correct those defects which a reasonable inspection would reveal. Keywords: 1. land occupier owes duty to those outside his property: a. inspect for defects b. repair defects that should have been discovered by reasonable inspection

(Duty) Duty Owed to a Child Trespasser:

The land occupier owes no duty to a child trespasser unless he is a constant trespasser upon a limited area or unless the case is one in which the Attractive Nuisance Doctrine applies. Keywords: 1. land occupier owes no duty to child trespasser 2. exceptions: a. constant trespasser upon a limited area b. Attractive Nuisance Doctrine

(Def.) Last Clear Chance Doctrine:

The last clear chance doctrine limits the contributory negligence defense so that even if the plaintiff was contributorily negligent, he will be permitted to recover if the defendant had a superior opportunity to avoid the accident and failed to do so. For example, if the plaintiff, through his own negligence, is in a position of helpless or inattentive peril and therefore unable to avoid an impending accident, and the defendant could have avoided the accident through the exercise of due care, but failed to do so, then the plaintiff's contributory negligence will not bar his recovery from the defendant. Keywords: 1. applies in contributory negligence jurisdictions (as an exception to the bar against the plaintiff's recovery) 2. doctrine available for use only by plaintiff as a counter defense to the defendant's defense of contributory negligence by plaintiff 3. defendant's negligence causes injury to plaintiff 4. plaintiff is found to be contributorily negligent 5. defendant had a superior opportunity to avoid causing injury and failed to do so

(Vic. Lia.) Respondeat Superior:

The literal translation is "let the superior answer." The doctrine applies in employment situations to hold the employer vicariously liable for his employee's torts which are committed within the scope of employment. Keywords: 1. employee commits tort 2. during the scope of employment 3. employer is held vicariously liable

Collateral Source Rule:

Under the Collateral Source Rule, if a third party provides benefits or reimbursement to the plaintiff for losses caused by the defendant, no evidence of the money or benefits from the collateral source may be introduced by the defendant to try to diminish the amount of damages he owes to the plaintiff. Key words: 1. third party provides money or benefit to plaintiff for losses caused by defendant 2. neither benefits nor money can be used as basis for set-off of damages owed by defendant

Doctrine of Avoidable Consequences:

Under the Doctrine of Avoidable Consequences, a plaintiff must act reasonably to mitigate his or her damages. If the plaintiff fails to act reasonably to minimize his loss or injury, the amount of damages he or she recovers may be reduced. Key words: 1. plaintiff has duty to mitigate damages 2. recovery reduced when the plaintiff fails to mitigate

Gertz v. Robert Welch, Inc.:

Under the Gertz case, a person does not become a public figure just because he is involved in a controversy which is heavily covered by the media. Public figures are those who "usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy." Key words: 1. public figure has greater access to means of countering false statements

Loss of the Benefit of the Bargain Theory (Misrepresentation):

Under the Loss of the Benefit of the Bargain Theory, special damages for misrepresentation are calculated by considering the value received by the plaintiff as compared to the value that the defendant stated the plaintiff would receive. Keywords: 1. special damages 2. difference between value promised and value received

(Def. to Int. Tort) Shopkeeper's Rule:

Under the Shopkeeper's Rule, a business person has a limited privilege in some jurisdictions to detain a suspected thief, e.g., shoplifter or embezzling employee, to investigate the shopkeeper's claim to the goods, even though it may be determined that no wrongful taking has been committed. Keywords: 1. defendant is a business person 2. objectively reasonable belief that a chattel has been taken by the plaintiff 3. fresh pursuit 4. defendant is charged with false imprisonment for detaining the suspected thief 5. detention was for a reasonable length of time to conduct a reasonable investigation

Thin Skull Plaintiff Rule:

Under the Thin Skull Plaintiff Rule, also called the Eggshell Plaintiff Rule, an exception is made to the general rule that an unforeseeable result of the defendant's act may break the chain of causation and negate liability. The defendant "takes his plaintiff as he finds him" in that the defendant will be liable even where his act produces an unforeseeable result if that result is due to the plaintiff's uncommon reaction or physical defect. Keywords: 1. plaintiff has uncommon reaction to defendant's act, which results in unforeseeable injury, or 2. plaintiff has physical defect which results in harm being caused by defendant's act even though a person without such defect would not have suffered the harm

(Def.) Assumption of the Risk:

Under the defense of assumption of the risk, a plaintiff assumes the risk of harm if he voluntarily subjects himself to a known and appreciated risk. Such consent may be expressly created by agreement between the parties, or it may be implied by the plaintiff's conduct. At common law, assumption of the risk is a complete bar to recovery in a negligence action. Keywords: 1. plaintiff voluntarily accepts risk of danger 2. risk is known and appreciated by plaintiff 3. acceptance of risk is express or implied

(Duty) Negligence Per Se:

Under the doctrine of negligence per se, the elements of duty and breach are proved when a defendant violates a safety statute which was intended to protect the class of people to which the plaintiff belongs from the kind of injury the defendant caused. In California, a presumption of negligence arises. Keywords: 1. defendant violates safety statute 2. plaintiff is a member of the class that the statute was designed to protect 3. injury to plaintiff is the type the statute was enacted to prevent

Rylands v. Fletcher:

Under the landmark English case of Rylands v. Fletcher, one who brings something onto his land which is non-natural and likely to cause injury if it escapes, is strictly liable for all damages resulting from an escape. Keywords: 1. land occupier brings something non-natural onto his land 2. likely to cause injury if it escapes 3. strict liability imposed

(Def.) Contributory Negligence:

Under the minority doctrine of contributory negligence, if the plaintiff's failure to exercise reasonable care for his own safety is a contributing factor to his own injury, he is barred from recovery for the defendant's negligent action. Keywords: 1. defendant's negligence is proved 2. plaintiff's negligence also contributed to his own injury 3. complete bar to plaintiff's recovery

Appropriation of Likeness:

Under the theory of appropriation of likeness, the plaintiff alleges that the defendant has committed an invasion of privacy through the unauthorized use of the plaintiff's name or likeness. Most commonly, the suit arises from the use of the plaintiff's name or likeness to promote a business or product, however most jurisdictions do not require a commercial use. Key words: 1. defendant used plaintiff's name or likeness 2. use was not authorized

Intrusion upon Seclusion:

Under the theory of intrusion upon seclusion, the plaintiff alleges that the defendant has committed an invasion of privacy through an intentional and unreasonable interference with the plaintiff's private affairs or an invasion of a location in which the plaintiff has a reasonable expectation of privacy. Key words: 1. intentional 2. a. unreasonable interference with plaintiff's private affairs, or b. intrusion into place where plaintiff reasonably expects privacy

Public Disclosure of Private Facts:

Under the theory of public disclosure of private facts, the plaintiff alleges that the defendant has committed an invasion of privacy through the publication of information relating to the plaintiff which is not of legitimate concern to public, in a way that would be highly offensive to a reasonable person. Key words: 1. publication of information relating to plaintiff 2. no legitimate public concern 3. highly offensive to reasonable person

(Vic. Lia.) Vicarious Liability:

Under the theory of vicarious liability, a defendant who is not charged with personal fault or wrongdoing may be held liable for the tortfeasor's act because of the defendant's relationship to the tortfeasor (e.g., the defendant is an employer, joint venturer, car owner, bailor, parent, etc.) A defendant who is held vicariously liable has the right to indemnification by the tortfeasor. Keywords: 1. defendant is not personally at fault 2. defendant is held liable for another's act because of a special relationship or circumstance 3. defendant may seek indemnification from the actual tortfeasor

Products Liability:

Under tort law, a manufacturer or seller who releases an unreasonably dangerous product into the stream of commerce is liable for harm caused by the product. In order to recover, it must be proved that the product was defective in design, manufacture, or warning, and one of four separate and distinct theories of liability must be asserted: intentional, negligence, breach of warranty, or strict liability. Keywords: 1. release of product into stream of commerce 2. injury to property or person caused by defect in product 3. defect must be shown in: a. design, b. manufacture, or c. warning 4. must assert at least one of four theories: a. intentional, b. negligence, c. breach of warranty, or d. strict liability

Abuse of Process:

Under tort law, a person is liable for abuse of process if he previously initiated a legal proceeding against the plaintiff, with an ulterior motive, and for an improper purpose. Key words: 1. defendant previously initiated a legal proceeding against plaintiff 2. defendant had an ulterior motive 3. defendant initiated the previous proceeding for an improper purpose

Defamation:

Under tort law, defamation is a false and defamatory statement, published intentionally or negligently to a third person, that the third person understood applied to the plaintiff, and which caused damage to the plaintiff. In order to recover damages, in addition to proving each element of defamation, the plaintiff is required to show that he or she has made a demand for a retraction from the defendant that would be given equal publicity, and the plaintiff must show that the defendant has refused to give the retraction. Keywords: 1. false statement 2. defamatory 3. published to third person 4. understood by third person in defamatory sense 5. damages 6. retraction demand made and refused

Special Duties - V-GOLD:

V-GOLD - Violation of Statute Guest Statute Omission to Act Landowner-Occupier Duties Owed by Lessors of Land

Sine Qua Non:

Sine qua non literally means "without which not." The term relates to the "But For" Test in that if a defendant's act is the sine qua non of a plaintiff's harm, then the plaintiff's harm would not have occurred in the absence of that act. Keywords: 1. act without which the plaintiff would not have been injured

Slander Per Se:

Slander per se results from a slanderous statement that is sufficiently serious to allow the plaintiff to recover without proof of special damages. The slanderous statement must allege criminal behavior, loathsome disease, unchastity, or improper business practices. For slander per se, the plaintiff is not required to prove special damages in order to recover general damages. Keywords: 1. defamation published through the spoken word 2. alleges: a. criminal behavior b. loathsome disease c. unchastity d. improper business practices 3. no need to prove special damages in order to recover general damages

Slander:

Slander, which is defamation that is published through the spoken word, requires proof of special pecuniary damages that flow directly from the defamation. Once these are proved, general damages are recoverable. Keywords: 1. defamation published through the spoken word 2. must prove special damages in order to recover general damages

(Tort Damages) Special Damages:

Special damages are pecuniary in nature and related to specific costs incurred due to the particular circumstances involved in the tort. Special damages must be specifically claimed and proved. Examples are lost wages, medical expenses and other "out of pocket" losses. Key words: 1. pecuniary 2. related to particular circumstances 3. must be specifically claimed by plaintiff 4. amounts must be proved

Strict Liability:

Strict liability is liability without fault. It is imposed against a defendant even though the defendant has done nothing intentionally wrong and has not acted unreasonably under the circumstances. Such liability is imposed, traditionally, for the keeping of dangerous animals, and the carrying on of abnormally dangerous activities. Keywords: 1. liability without fault 2. defendant has not done anything intentionally wrong nor unreasonable 3. traditionally relates to: a. keeping dangerous animals or b. abnormally dangerous activities

Products Liability (Strict Liability):

Strict liability may be imposed against a manufacturer or seller of a product which is defective and thereby unsafe for its anticipated use, or for failure to warn the consumer of an inherent danger involved in the use of the product when put to an intended or foreseeable use. To prevail in a products strict liability action, the plaintiff must prove: 1) manufacture or sale of the product was by defendant, 2) the product was defective, 3) the product and its defective aspects were the actual and proximate cause of the plaintiff's injuries, and 4) the defect existed at the time the product left the defendant's hands.

(Int.Tort) Trespass to Chattel:

Trespass to chattel is the intentional interference with a person's use or possession of a chattel. Keywords: 1. intentional 2. interference with chattel 3. possessed by another

(Int.Tort) Trespass to Land:

Trespass to land is an intentional entry upon real property in the possession of another. Keywords: 1. intentional 2. entry upon real property 3. in possession of another

New York Times v. Sullivan:

Under New York Times v. Sullivan, the U.S. Supreme Court held that a public official cannot recover damages for defamation bearing upon his or her qualifications for a position unless he or she can prove by clear and convincing evidence that the statement was made with actual malice. Later cases extended the rule to public figures. Key words: 1. applies to statements about public officials (and also public figures) 2. actual malice must be proved

(Duty) Cardozo Rule on Duty:

Under Palsgraf v. Long Island Railroad Co., Justice Cardozo's majority opinion held that a defendant owes a duty only to those who could foreseeably be endangered by the defendant's negligent act. Therefore, according to the rule, there is no duty owed to a plaintiff who is in a position of apparent safety when the defendant commits a negligent act. This is the so-called "orbit of danger" test. Keywords: 1. duty owed to foreseeable plaintiffs in the "zone of danger"

(Duty) Rowland v. Christian:

Under Rowland v. Christian, the court eliminated the distinction between business invitee, licensee, and trespasser, and found that the land occupier owes a duty to act as a "reasonable man" for the purposes of rendering the occupied property safe for others. Keywords: 1. land occupiers must act reasonably to keep their property in safe condition

Summers v. Tice:

Under Summers v. Tice, if there is clear evidence that two or more parties were negligent, but only one could have caused an injury, and if it cannot be shown which of the negligent parties caused the injury, then the burden of proof is on each defendant to show that he did not cause the injury. Absent such evidence, the negligent parties may be held jointly and severally liable for the damages. Keywords: 1. two or more persons act negligently 2. only one act produces injury 3. burden of proof switches to defendant 4. if it cannot be determined which act produced the injury, then joint and several liability is imposed

Qualified Privilege:

Under a qualified privilege, the defendant has immunity from liability for defamation if he is acting for the following socially desirable purposes: 1) to protect the defendant's own interests 2) to protect the interest of others 3) to protect a common interest 4) to protect a public interest 5) to offer an opinion within the Fair Comment Privilege A qualified immunity can be lost if the statement was irrelevant, made with malice, with a bad faith belief, or if it was excessively publicized.

Wrongful Death Statute:

Under a wrongful death statute, when the defendant's intentional or negligent act causes the death of a person, the surviving members of the decedent's family can bring an action to recover for their loss. At common law, no such cause of action existed for the surviving members of the decedent's family. Keywords: 1. death caused by defendant's intentional or negligent act 2. suit may be brought by decedent's family members

Absolute Privilege:

Under an absolute privilege the defendant has complete immunity from liability for defamation, even if he defames maliciously, knowing the statements to be untrue. Absolute privileges exist for statements: 1) during judicial proceedings, 2) during legislative proceedings, 3) during executive government functions 4) which are official statements of government officials, 5) between husband and wife, or 6) which are broadcast under the equal time doctrine.

Duties Owed to Persons Coming Onto Land - A Professor You Understand:

A Professor You Understand - Artificial condition creating an unreasonable risk of harm Posssessor of land knew or should have known that children are likely to trespass Children unable to recognize danger because of their Youth Utility of maintaining the conditin vs. burden of eliminating the risk

Breach:

A breach is the failure to perform one's duty. Keywords: 1. failure to perform duty

(Duty) Business Invitee:

A business invitee is a person who has express or implied permission to enter business property to do business with the land occupier. Keywords: 1. enters business property of another 2. for business purpose 3. express or implied consent of occupier

(Duty) Constant Trespasser Upon a Limited Area:

A constant trespasser upon a limited area is a trespasser whose presence is known, or should be known, to land occupier because of the trespasser's repeated acts of trespassing. Keywords: 1. enters real property of another repeatedly in same area or manner 2. no consent 3. land occupier is aware of trespass or should be aware

(Def. to Int. Tort) Defense of Consent:

A defendant who acted in accordance with the plaintiff's informed and voluntary assent, whether express or implied, is not liable for the resulting harm so long as the plaintiff had legal capacity. Keywords: 1. informed 2. voluntary 3. express or implied assent 4. legal capacity

Dependent Intervening Act:

A dependent intervening act is one which would not have occurred in the absence of the original negligence. It is nearly always considered to be part of the chain of events set in motion by the original negligent act. Therefore, a dependent intervening act breaks the chain of causation only if the act was highly unforeseeable. Keywords: 1. intervening act 2. would not have occurred without negligent act 3. normal reaction or part of chain of events started by defendant 4. breaks chain of causation only if highly unforeseeable

(Duty) Duty Owed to a Guest Passenger:

A driver of a motor vehicle, in the absence of a statute otherwise, owes to persons riding in the vehicle a duty of driving with due care. However, a number of jurisdictions have statutes that provide that a guest passenger in an automobile cannot recover from the owner or operator of the automobile unless the owner or operator is guilty of willful misconduct, recklessness, or intoxication. Keywords: 1. drivers owe a duty to passengers to drive with due care

(Duty) Family Purpose Doctrine:

A parent who furnishes a vehicle to the members of his or her family for customary convenience, assumes liability for the tortious acts committed by those persons when the car is being driven for a family purpose. Keywords: 1. parent owes duty to those injured by family members who use vehicle 2. vehicle used for family purpose

(Def. to Int. Tort) Defense of Recovery of Property:

A person may commit an act which would otherwise be tortious if he or she is acting in fresh pursuit and with a reasonable degree of force to regain possession of his or her property. There are three separate aspects to this particular defense: re-entry upon land, recapture of chattel, and the Shopkeeper's Rule. Keywords: 1. defendant's property has been taken 2. defendant is in fresh pursuit 3. defendant acts to regain his property 4. degree of force was objectively reasonable and not life-threatening or likely to cause serious bodily harm

(Def. to Int. Tort) Defense of Legal Authority:

A person may commit an otherwise tortious act if it is done under legal process or is otherwise authorized by law. It is a defense that is usually used by police officers or private persons who have made an arrest either with or without a warrant and who are now facing charges of false imprisonment in relation to their having made the arrest. Keywords: 1. defendant acts under legal process or otherwise authorized by law

(Def. to Int. Tort) Defense of Necessity:

A person may commit an otherwise tortious act if that person is acting in an emergency situation to protect himself or others from a threatened injury to person or property. The person claiming the defense of necessity may act on appearances. A reasonable mistake is permitted. Keywords: 1. defendant acts to protect himself, others, or property 2. defendant had an objectively reasonable belief that his act was done during an emergency situation

Proximate Cause:

An actual cause of harm is the proximate cause of that harm if the act occurs in a natural and continuous sequence of events, unbroken by unforeseeable, independent, intervening acts and results in the harm. When a defendant's act directly causes injury to the plaintiff without any intervening causes, the majority of jurisdictions hold that act to be the proximate cause of harm unless the harm is unforeseeable. However, in some jurisdictions, if the defendant's act directly causes harm, his act is the proximate cause regardless of whether the harm was foreseeable or unforeseeable. When a dependent intervening act occurs, the chain of causation is broken only if the result of the dependent intervening act is highly unforeseeable. When an independent intervening act occurs, the chain of causation is broken unless the result of the independent act is foreseeable. Keywords: 1. act is proven to be an actual cause of plaintiff's harm 2. act occurs in a natural and continuous sequence of events 3. a. sequence of events is unbroken by an intervening act, or b. intervening act occurs, but it is dependent and produces a result that is not highly unforseeable, or c. an intervening act occurs, but it is independent and result is foreseeable

Independent Intervening Act:

An independent intervening act is one which would have occurred even in the absence of the original negligence. It breaks the chain of causation unless the act or its result was foreseeable in light of the original negligent act. Keywords: 1. intervening act 2. would have occurred even without defendant's negligent act 3. breaks chain of causation unless its occurrence or result was foreseeable

Intervening Act:

An intervening act is one that occurs after the defendant's act and before the plaintiff's injury.

(Duty) Invitee:

An invitee is a person who has an express or implied invitation to enter property for the purpose for which the property is maintained. Keywords: 1. enters land of another 2. for purpose related to express or implied consent of owner

(Duty) Omission to Act:

An omission to act to prevent injury, or "nonfeasance", does not give rise to tort liability unless there is a special relationship or special circumstance which creates an affirmative duty requiring the defendant to act to protect the plaintiff. An affirmative duty to act may arise when there is a close familial relationship, such as parent and child or husband and wife; when the defendant and the plaintiff are co-venturers; when the defendant caused the plaintiff to be in danger or injured; when the defendant has begun to render assistance to the plaintiff; when the defendant fails to perform a duty to control the behavior of others; when the defendant is an innkeeper; or when the defendant operates a common carrier such as a plane or ship. Keywords: 1. no duty is owed to act to prevent injury to another 2. exceptions: a. parent/child b. husband/wife c. co-venturers d. innkeeper/guest e. common carrier/passenger f. person who creates danger/person so endangered

(Int.Tort) Battery:

Battery is the intentional, harmful or offensive touching of another. Key words: 1. intentional 2. harmful or offensive 3. touching of another person

Slander per Se (proof of specials not required, generals presumed) - CLUB

CLUB - Crime Loathsome Disease Unchastity Business

(Duty) Owner Liability Statutes:

Certain statutes impose liability upon owners of vehicles for the tortious acts committed by persons to whom the owner intentionally furnishes the vehicle. Keywords: 1. vehicle owner may owe duty to those injured by person to whom vehicle was loaned

Charitable Immunity:

Charitable immunity traditionally prevented non-paying recipients from suing a charity. However, paying recipients could sue the charity because, as to them, it was not a charity; it was a business. Modernly, the trend is to abolish the immunity and to hold non-profit organizations liable to the same extent as any other wrongdoing defendant. Keywords: 1. recipients of a charity cannot sue the charity 2. exception: paying recipients can sue

Colloquium:

Colloquium is the offer of extrinsic evidence to explain the defamatory sense of the defendant's statement, and is included in a complaint when a statement is not defamatory on its face.

(Bus. Tort) Disparagement:

Disparagement, or trade libel, is the publication of an untrue or misleading statement about another's business or product in an attempt to influence a person not to deal with the business. Key words: 1. untrue or misleading statement 2. publication 3. intent to harm reputation or business

(dam.) Damages for Negligence Actions:

In a negligence action, the plaintiff may not recover damages unless he first proves that he suffered physical harm. Once this is established, he may recover most categories of damages, except for punitive damages, which are generally not available for negligence, unless the defendant's conduct was reckless or outrageous.

(Int.Tort) False Imprisonment:

False imprisonment is the intentional confinement of the plaintiff by the defendant. Keywords: 1. intentional 2. confinement of another person

(Duty) Special Duty:

In addition to the general duty which everyone owes, special duties may be imposed due to a special relationship or circumstance. Keywords: 1. special relationship or circumstance may raise a special duty

(Def. to Int. Tort) Fresh Pursuit:

Fresh pursuit relates to the requirement that a person recapturing a chattel or a shopkeeper detaining a suspected thief must do so without unreasonable delay after discovering the loss.

(Tort Damages) General Damages:

General damages are non-pecuniary in nature and are presumed by the law to be incurred based upon the commission of the tort. General damages need not be specifically claimed and proved. Examples are pain, suffering and inconvenience. Key words: 1. non-pecuniary 2. presumed to flow from the tort 3. amount not required to be proved

Invasion of Privacy:

Generally, causes of action for invasion of privacy relates to the violation of one's right to be let alone. One of four theories must be charged: appropriation of likeness, intrusion upon seclusion, public disclosure of private facts, or false light. Key words: 1. violation of right to be let alone

Governmental Immunity:

Governmental immunity has been applied to prevent suits against a governmental entity unless that entity has consented to the suit. A substantial number of jurisdictions have totally abolished the immunity of municipal governments, and in several states, the immunity of the state government has also been terminated. Keywords: 1. cannot sue a government entity without consent of the government

Violation of Statute - ICI+:

ICI+ - Intent of legislature Class of persons to be protected type of Injury suffered + evidentiary effect (negligence per se [maj.], inference of negligence [mmin.], presumption of negligence [CA]

Statute of Limitations for Personal Injury:

If not otherwise specified, the statute of limitations for personal injury is two years, and it begins to run at the time of injury or discovery of the injury. Keywords: 1. generally, statute of limitations is two years for tort actions 2. statute of limitations begins to run at whichever of the following occurs first: a. time of injury, or b. time of discovery of injury

Actual Malice in Defamation:

In defamation, malice does not necessarily mean ill will. It means that the publication of the defamation was made with either knowledge that the statement was false, or with reckless disregard of whether or not it was true. KEY WORDS AND PHRASES: 1. defamatory statement 2. scienter or reckless disregard for truth

Products Liability (Negligence):

In order for a plaintiff to recover under a negligence theory of products liability, the plaintiff must prove duty, breach, causation, and damages. A duty of care originally extended only to those in privity of contract, but under McPherson v. Buick, the duty was extended to all foreseeable users. To establish breach, the plaintiff must show that the product failed to meet ordinary commercial expectations. Damages are limited to personal and property. Keywords: 1. defendant is a manufacturer, distributor, supplier, or retailer of the product 2. duty (must show that the plaintiff was a foreseeable user) 3. breach (must show that the product failed to meet ordinary commercial expectations) 4. causation (product's defect caused harm to the plaintiff) 5. damages limited to personal and property

Products Liability (Intentional):

In order for the plaintiff to recover on a theory of intent (battery), the plaintiff must prove that the manufacturer, distributor, or supplier knew the product would cause harm at the time the product was released into the stream of commerce. Keywords: 1. defendant is a manufacturer, distributor, supplier, or retailer of the product 2. product was created as intended 3. product is dangerous 4. defendant knew of the product's danger

Intent Requirement for Intentional Torts:

In order to find that a tortious act was done with intent, it must be established that the defendant had a conscious desire that the result would occur, knew that the result would occur, or knew that the result was substantially certain to occur. Keywords: 1. conscious desire to produce result, or 2. knowledge that result will occur, or 3. knowledge that result is substantially certain to occur

Intentional Misrepresentation:

In order to recover for intentional misrepresentation, or deceit, the plaintiff must prove that the defendant made a false statement of material fact with scienter and with an intent to induce the plaintiff's reliance, and that the plaintiff justifiably relied, causing the plaintiff damage. Keywords: 1. false statement 2. material 3. scienter 4. intent to induce reliance 5. justifiable reliance 6. damages

Negligent Misrepresentation:

In order to recover for negligent misrepresentation, the plaintiff must prove that the defendant breached his duty to exercise due care in acquiring and transmitting information, and made a false statement of material fact, with an intent to induce the plaintiff's reliance, and that the plaintiff justifiably relied, causing the plaintiff damage. Keywords: 1. false statement 2. material 3. negligence in acquisition and communication 4. intent to induce reliance 5. justifiable reliance 6. damages

(Def. to Int. Tort) Reasonable Appearances Jurisdictions (Defense of Others):

In other jurisdictions, a person defending another in good faith and in ignorance of the fact that the person being defended is the aggressor and not entitled to use self-defense is nevertheless justified when acting upon reasonable appearances. Sometimes it is further required that the person being defended is one whom the defender is authorized by statute to protect. Keywords: 1. defendant claims defense of others 2. defendant acted in good faith 3. objectively reasonable ignorance of fact that person being defended was aggressor

(Def. to Int. Tort) Step-In-Shoes Jurisdiction (Defense of Others):

In some jurisdictions a person is not allowed to use the defense of "defense of others" unless the person being defended was not the aggressor and had the right to use self-defense. Keywords: 1. defendant claims the defense of others 2. person defended was not aggressor 3. person defended was entitled to use self-defense

Joint and Several Liability:

Joint and several liability is imposed upon joint and concurrent (but not successive) tortfeasors. This means that each is responsible for the full amount of the plaintiff's injury and the full amount of a related court judgment. Judgments for the full amount may be obtained against any of the tortfeasors, but the plaintiff is not entitled to recover more than the total judgment. Thus, satisfaction from one tortfeasor will discharge the liability of the others to the plaintiff. Keywords: 1. imposed against joint and concurrent tortfeasors 2. each tortfeasor is responsible for full amount of judgment awarded to plaintiff 3. plaintiff can collect full amount of judgment from any or all tortfeasors 4. plaintiff cannot collect more than full amount of judgment 5. satisfaction of full amount discharges remaining liability to plaintiff

Joint Tortfeasors:

Joint tortfeasors consist of two or more persons who join together to commit a tortious act. Their status is similar to that of co-conspirators in criminal law, and each is vicariously liable for the acts done by the other in the furtherance of the common design. Keywords: 1. two or more persons 2. join together to commit tort 3. vicarious liability is imposed

(Vic. Lia.) Joint Venturers:

Joint venturers are similar to partners except that joint venturers share only a short, specific purpose, such as a trip or single transaction. Joint venturers are generally vicariously liable for each other's torts in furtherance of the venture. Keywords: 1. two or more persons who join together to accomplish a short specific purpose 2. vicarious liability is imposed for torts in furtherance of the venture

Products Liability (Breach of Warranty):

Liability can be imposed against the manufacturer or seller of a product based upon the buyer's reliance upon an express or implied warranty that the goods are of merchantable quality or are fit for their intended purpose. Keywords: 1. defendant is a manufacturer, distributor, supplier, or retailer of the product 2. a. product is not of merchantable quality, or b. product is not fit for its intended purpose

(Negl.) Negligence:

Liability for negligence requires proof of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and that the breach was the actual and proximate cause of damages suffered by the plaintiff. Keywords: 1. duty 2. breach 3. causation 4. damages

Libel Per Se:

Libel Per Se is a statement which is clearly defamatory on its face, meaning that inducement and innuendo are not needed to establish the fact that the statement is defamatory. For libel per se, proof of special damages is not required, and general damages are presumed. Keywords: 1. defamation published in written form 2. defamatory on its face 3. no need to prove special damages in order to recover general damages

Libel:

Libel is written defamation. Keywords: 1. defamation published in written form

Libel Per Quod:

Libel per quod is not defamatory on its face but is defamatory only when viewed in light of outside circumstances, meaning that the inducement and innuendo are needed to establish the defamation. Libel per quod requires proof of special damages in some jurisdictions. Keywords: 1. defamation published in written form 2. not defamatory on its face 3. statement understood in defamatory sense only through use of inducement and innuendo 4. must prove special damages in order to recover general damages in some jurisdictions

(Tort Damages) Loss of Consortium:

Loss of consortium means a loss of the benefits that one spouse is entitled to receive from the other spouse, including companionship, cooperation, aid, affection, and sexual relations. In a minority of jurisdictions, loss of consortium is also available related to the loss of a child. Key words: 1. loss of benefits 2. shared by spouses (companionship, etc.)

Malicious Prosecution:

Malicious Prosecution is a cause of action against a defendant who previously filed criminal or civil proceedings against the plaintiff without probable cause and with malice. The original proceeding must have ended in favor of the party who is now suing for malicious prosecution. Key words: 1. plaintiff in a prior suit sued with malice and without probable cause 2. defendant in that prior suit won the case 3. defendant from prior suit now becomes plaintiff in a new action

(Def.) Comparative Negligence:

Modernly, the doctrine of comparative negligence has replaced contributory negligence, so that liability is apportioned according to the relative degrees of fault of the plaintiff and defendant. In a pure comparative negligence jurisdiction like California, the plaintiff will recover some damages no matter how great his own negligence was. In partial comparative negligence jurisdictions, the plaintiff will not recover if his own negligence equals or exceeds the defendant's. Keywords: 1. defendant's negligence is proved 2. plaintiff's negligence also contributed to his own injury 3. damages will be apportioned between plaintiff and defendant

Causation:

Proof that the defendant's act is the actual and proximate cause of the plaintiff's harm is required in order to establish that a defendant should be held liable for that particular harm. Keywords: 1. plaintiff must prove defendant's act is actual cause of harm 2. plaintiff must prove defendant's act is proximate cause of harm

(Duty) Negligent Supervision:

Negligent supervision is a cause of action which is brought by a plaintiff who suffered injury because a child or other person was inadequately supervised by one who owed a duty of supervision. Most commonly, it is brought against parents who failed to exercise ordinary parental discretion as to the manner in which their child is supervised or cared for. Modernly, a child may bring an action against his or her own parents for injuries sustained by the child because of lack of proper supervision. Keywords: 1. person who is obligated to supervise a child owes a duty to those injured by child 2. person who is obligated to supervise a child owes a duty to the child

Out of Pocket Damages (Misrepresentation):

Out of Pocket damages are usually considered to be the same thing as special damages since they are pecuniary in nature. However, in an action for misrepresentation, out-of-pocket damages are calculated by comparing the difference between what the plaintiff paid, to the value of what the plaintiff received. Keywords: 1. special damages 2. difference between amount paid and value received

Private Nuisance:

Private nuisance results from an act by the defendant which unreasonably interferes with the plaintiff's use or enjoyment of his or her property. Key words: 1. act by the defendant 2. unreasonable interference in plaintiff's use or enjoyment of property

Damages in Products Liability:

Property damage is recoverable under negligence and strict liability in tort, but not under breach of warranty in some jurisdictions unless there was accompanying personal injury. Intangible economic harm is not recoverable under negligence or strict liability in tort theory, unless the intangible economic harm is combined with personal or property injury. Intangible economic harm is recoverable by a direct purchaser who is suing for breach of warranty, including consequential damages and lost profits. However, intangible economic harm is not recoverable by a remote purchaser or a non-purchaser suing for breach of warranty. Keywords: 1. property damage: a. recoverable for negligence and strict liability in tort b. not recoverable for breach of warranty in some jurisdictions, unless i. property damage is accompanied by personal injury 2. intangible economic harm: a. not recoverable for negligence or strict liability in tort, unless i. property damage is accompanied by personal injury b. recoverable by direct purchaser for breach of warranty c. not recoverable by remote purchaser nor by nonpurchaser

Public Nuisance:

Public nuisance results from an act or conduct by the defendant which is injurious to the public in general. Key words: 1. act by defendant 2. injurious to public

(Tort Damages) Punitive or Exemplary Damages:

Punitive damages, also called exemplary damages, are awarded to the plaintiff for the purpose of punishing the defendant for malicious or reckless conduct. The intent is to make an "example" of the defendant's conduct so that such conduct will not be repeated. Key words: 1. granted as punishment 2. malicious or reckless conduct

(Def. to Int. Tort) Reasonableness:

Reasonableness is a concept that permeates all of the defenses to intentional torts. It is the standard by which the amount of force used or the time and manner of a re-entry, recapture, or detention is judged

Res Ipsa Loquitur:

Res Ipsa Loquitur is a rule of evidence which aids the plaintiff in proving the element of breach of duty when the plaintiff is unable to establish by other evidence that the defendant acted unreasonably. The doctrine proceeds upon the theory that the occurrence itself speaks of negligence and it is unnecessary for the plaintiff to show the exact circumstances whereby the defendant breached his or her duty of care. The plaintiff must prove: 1) the defendant was in complete control of the instrument that caused the harm; 2) the plaintiff is not guilty of contributory negligence; 3) the defendant is in a better position to explain what happened; and 4) injuries of this type do not normally occur absent such negligence. 5)The literal interpretation is "the thing speaks for itself."

Substantial Factor Test:

The Substantial Factor Test is used to establish actual cause where more than one act contributes to the plaintiff's harm. The defendant is said to be an actual cause of the plaintiff's harm if the defendant's act is a substantial factor in bringing the harm about. This means that the defendant's act contributed in more than a trivial degree to the plaintiff's injury. The test applies where two or more acts combine to produce a single indivisible injury regardless of whether either or any of the acts by itself would have caused the injury. Where more than one act could have caused the injury by itself, then each actor may be held jointly and severally liable. However, where an act would not have caused the injury without the other contributing acts, liability may be apportioned between the tortfeasors. Keywords: 1. used to establish actual cause 2. more than one act is involved in producing single indivisible injury 3. defendant's act contributed to injury to more than a trivial degree

Transferred Intent Doctrine:

The Transferred Intent Doctrine is applicable when a defendant, while in the process of committing a tort against one person, unintentionally harms a third person or commits a different tort. In such a case, the defendant's wrongful intent is transferred to include the unintended victim or tortious act. Keywords: 1. defendant intends to commit a tortious act 2. a. result is harm to a different victim than intended, or b. result is a different tort than intended

(Duty) General Duty:

The general rule of duty holds that everyone owes a duty to exercise due care so as not to subject others to unreasonable risks of harm. Keywords: 1. everyone owes duty of due care 2. not to subject others to unreasonable risks of harm

Parent-Child Immunity:

Traditionally parent-child immunity has been applied so that a parent and minor child are immune from suits against each other in tort action. However, suits involving interference with property interests have been freely allowed. Many jurisdictions have abolished parent-child immunity. Keywords: 1. parents and children cannot sue each other 2. exception: suits related to interference with property interests

False Light:

The theory of false light is not recognized by some states and in these states, the plaintiff must prove defamation to recover damages. However, in those states which recognize false light, the plaintiff must prove that the defendant has committed an invasion of privacy through the publication to the public of offensive, untruthful or misleading information about the plaintiff. In California, where the publication involves a false statement, an action is brought for defamation; where the publication involves a false implication, an action is brought for false light. Key words: 1. publication by defendant to the public (not just to one person) 2. implication about plaintiff which is untrue or misleading 3. highly offensive to reasonable person

Interference With Contractual Relationship:

Tortious interference with a contractual relationship is one of the common forms of the tort of Interference with Economic Relationship. This tort is narrower in scope and requires the presence of a contract between the plaintiff and a third party, and an intentional inducement to breach that contract by the defendant, resulting in damages to the plaintiff. Key words: 1. existence of a valid contract between the plaintiff and a third party 2. knowledge of the contractual relationship by the defendant 3. intentional inducement of a breach of contract by the defendant 4. plaintiff proves economic harm

Trespass Ab Initio:

Trespass ab initio is an entry upon the real property in possession of another under a conferred legal right, and the subsequent abusing of that conferred legal right through the commission of an assault, battery, false imprisonment, or trespass. Keywords: 1. legal entry upon another's property 2. abuse of right of entry by commission of tort

Design Defect:

When a product is defective in design, it means that the product was produced as intended by the manufacturer, but because of its design, the product creates an unreasonable danger to consumers. However, a defense may exist where the product is unavoidably unsafe and its benefits outweigh its dangers. Keywords: 1. product is created as intended 2. product is unreasonably dangerous 3. product's lack of safety was not unavoidable 4. product's benefits do not outweigh its dangers

Manufacture Defect:

When a product is defective in manufacture, it means that the product was not made as intended. Instead, due to an error in the production of the particular item at issue, the product is aberrant. Note that other products of the same type may not be defective. Keywords: 1. product is not created as intended 2. error in production caused a defect

Warning Defect:

When a product is defective in warning, its design and production are as intended, but the product poses a danger that is not apparent to the reasonable customer. Keywords: 1. product is created as intended 2. product is dangerous 3. reasonable customer would not be aware of danger

Wrongful Birth:

Wrongful birth actions have been accepted in an increasing number of jurisdictions. They usually relate to a claim of negligence against a physician or laboratory related to the failure to supply information concerning potential birth defects or claimed negligence involved in the failure to prevent birth by contraception, abortion, vasectomy, etc. Keywords: 1. child is born and 2. a. parents used preventative medical techniques, or b. child has a birth defect which could have been disclosed in time for termination of pregnancy 3. lawsuit may be brought by parents against medical professionals