L201 Exam 2

Express assumption of risk

when a plaintiff has acknowledged, before the injury, that he or she is aware of the risk.

Implied assumption of risk

when a plaintiff knows that there is a risk and exposes him or herself to it anyway

Comparative negligence formula

Plaintiff's recovery=defendants % share of negligence * plaintiff's proven damages

Breach of duty

Defendant failed to act in the way that his duty required • Breach of duty must be proved by plaintiff

What makes an activity abnormally dangerous?

• "Abnormally dangerous activities" [Note: this is a legal term that has a different meaning than the English meaning) o High risk o Inability to make activity safe even when careful o Serious harm threatened o Value to community not as great as its danger o Activity not appropriate to its place o Not a common usage

Writ of Certiorari

• A writ by which the Supreme Court can call up for review the record of a proceeding n an inferior court "To be informed of"

Intrusion on Solitude or Seclusion

• Invasion of privacy IF that intrusion would be highly offensive to a reasonable individual • May be physical or nonphysical • MUST BE A REASONABLE EXPECTATION OF PRIVACY (Searching through someone's mail)

Misuse of legal proceedings (3) just be aware!

• Malicious prosecution: affords a remedy for the wrongful institution of criminal proceedings • Wrongful use of civil proceedings: designed to protect people from wrongfully instituted civil suits • Abuse of process: imposes liability on those who initiate legal proceedings, whether criminal or civil, for a primary purpose other than the one for which the proceedings were designed

Modern premises liability (invitees, licensees, trespassers)

• No distinction is made between duty owed to licensees and invitees (reasonable care for both) • Duties toward some trespassers (such as children or frequent or known trespassers)

Fromm six

• Self-Awareness: having a highly developed sense of self (aware of self values, goals, likes, dislikes, needs, drives, strengths and weaknesses and the effect they have on your behavior) • Active Listening: the ability to fully comprehend information presented by others through careful monitoring of words spoken, voice inflections, paralinguistic statements and non-verbal cues • Questioning: possessing the art and skill of how to ask for information • Empathy: sensing and perceiving what others are feeling and being able to see their perspective • Communication/Presenting: the ability to assertively present compelling arguments respectfully and sell one's ideas to others (knowing how to speak clearly and in a way that promotes complete listening) • Resilience: (the ability to deal with difficult situations calmly and cope effectively with stress)

False Light Publicity

• Unreasonable and highly objectionable publicity attributing to a person characteristics or beliefs that she does not possess • THIS IS BASICALLY LYING ABOUT SOMEBODY IN A HIGHLY OFFENSIVE WAY • TRUTH IS A DEFENSE TO LIABILITY, i.e., if the Defendant can prove that it was NOT a lie, Defendant can have the case dismissed

Public Disclosure of Private Facts

• WIDESPREAD communication of private details that would be highly offensive to a reasonable person (Internet would suffice). • Truth is not a defense, because the tort is giving unjustified publicity to purely private matters

Conditional privilege

A statute given to store owners to stop suspected shoplifters

Defamation/public figure

"false and defamatory" statement published to the public concerning a public figure

Egg shell plantiff

"take their victims as they find them" The negligent defendant is liable for he full extent of her victims injuries if those injuries are aggravated by some preexisting physical susceptibility of the victim

Trespassers

(historically) no duty to exercise reasonable care, only not a duty to willfully or wantonly injury trespassers (currently) higher duty to children known to trespass o Enters property for own purpose w/o consent

Negligence claim

1) the defendant owed a duty of care to the plaintiff 2) the defendant committed a breach of this duty 3) this breach was the actual and proximate cause of injury experienced by the plaintiff (unintended)

Elements of Negligence

1. DUTY: D was under a legal duty to behave in a certain way for the protection of P 2. BREACH OF DUTY: D failed to behave in the way that the law required 3. INJURY: P was injured 4. ACTUAL AND PROXIMATE CAUSE: D's conduct brought about P's injuries in a way that was foreseeable

Invasion of privacy

1. Intrusion on Solitude or Seclusion 2. Public Disclosure of Private Facts 3. False Light Publicity 4. Commercial Appropriation of Name or Likeness or Right of Publicity

Tort

A civil wrong that is NOT a breach of contract (interferes with another's person or property) o Intent o Recklessness o Negligence o Strict liability

Recklessness

A conscious indifference to a known and substantial risk of harm created by one's behavior "Willful and wanton conduct" -Defendant fires gun in a crowded subway station and injures the plaintiff. The defendant had no desire to hit anyone but knew this could be a result from his behavior

Transferred intent

A defendant who intends to injure one person but actually injures another is liable to the person injured, despite the absence of any specific desire to injure him

Actual malice? (clear and convincing standard of proof)

A defendant who makes a "false and defamatory" statement about a public official plaintiff will not be held liable unless the public official proves that the defendant made the statement either (1) knowing it was false or (2) recklessly Must prove by "clean and convincing evidence"- higher standard of proof than the preponderance of the evidence standard

Direct liability

A legal obligation that results from someone's personal actions Ex. Someone who breaks a window is directly liable for the breakage of the window and can be obliged to pay for a replacement.

Intervening Causes

Absolves the defendant of liability for hard that resulted directly fro the intervening cause

Ultra hazardous

An activity or process that presents an unavoidable risk of serious harm to the other people or others' property, for which the actor may be held strictly liable for the harm, even if the actor has exercised reasonable care to prevent that harm. "Abnormally dangerous activity"

Defamation -know the elements

An intentional tort that prohibits the publication of false and defamatory statements concerning another • Unprivileged • Publication • False and defamatory • Statements concerning another

Private Nuisance

An interference with a person's enjoyment and use of his land-does not involve any physical invasion of the plaintiffs property - Odors - Noise - Smoke - Light - Vibration

In rem jurisdiction

Applies when property that is the subject of the dispute is located within physical boundaries of the court's authority

Assumption of the risk

Assuming the risk for a given activity • Assuming risk for jumping out of a plane to skydive but NOT assuming risk hat parachute is broken

Effect of committing a tort that is also a crime

Can be tried in both criminal and civil court

Standard of proof

Clear and convincing (actual malice must be present)

Actual cause

Defendant's negligence played a substantial role in bringing about the harm; if it weren't for defendant's negligence, plaintiff would not be harmed "But-for" test

Intentional torts

Describes a civil wrong resulting from an intentional act on the part of the tortfeasor (alleged wrongdoer).

Punitive damages

Designed to punish flagrant wrongdoers and to deter them and others from acting similarly in the future (Not intended to compensate victim for losses-Reserved for the worst kinds of wrongdoing)

Intent

Desire to cause certain consequences or the substantial certainty that those consequences will result from one's behavior -Defendant pulls trigger of a loaded gun while aiming it at the plaintiff for the purpose of killing him

Negligence

Failure to use reasonable care, with harm to another party occurring as a result -Defendant accidentally fires a gun he thinks was unloaded but injures plaintiff.

Conditional Privilege

Gives the defendant a defense unless the privilege is abused

Slander per se

Includes false statements that the plaintiff: • has committed a crime involving of moral turpitude (potential imprisonment) • has a loathsome disease • is professional incompetent or guilty of professional misconduct • is guilty of serious sexual misconduct

Intentional infliction of emotional distress (IIED)

Intentional or reckless "outrageous" conduct - so extreme in degree, beyond all possible bounds of decency - that would cause a reasonable person "severe" distress

Strict liability

Liability irrespective of fault (P need not prove intent, recklessness, negligence or any other kind of wrongfulness-fault)

"Reasonable person" test ("Reasonable care" standard)

Members of society have a duty to behave in ways that avoid the creation of unreasonable risks of harm to others. Each person, therefore, must act as a reasonable person of ordinary prudence would have acted under similar circumstances. Breach of this duty requires the plaintiff to establish that defendant failed to act as a reasonable person would have acted.

Compensatory damages

Money awarded for the harms resulting from defendant's harmful act (physical injuries, medical expenses, lost wages and benefits, loss of privacy, injury to reputation, emotional distress, loss of consortium)

Proximate cause

Plaintiff's harm was foreseeable in light of the risk that defendant was creating (a reasonable person thinking about defendant's act or omission should anticipate the kind of harm that happened to plaintiff)

In personam jurisdiction

Requires that the defendant be a resident of, located within, OR have committed acts within the physical boundaries of the court's authority

Absolute Privilege

Shield the author of a defamatory statement regardless of knowledge, motive, or intent

Res ipsa loquitur

Special doctrine that helps plaintiff prove breach of duty when there's a strong inference of negligence but all the facts are within defendant's control ("the thing speaks for itself")

Negligence per se

The defendant's violation of such laws may create a breach of duty and may allow the plaintiff to win the case if the plaintiff: 1. Plaintiff is within class of persons intended to be protected by the law AND 2. Plaintiff suffered harm that statute is designed to prevent

Deceit/fraud (contractual) later

The formal name for the tort claim that is available to victims of knowing misrepresentations

Battery

The intention and harmful or offensive physical touching of another without his consent (physical contact)

False imprisonment

The intentional confinement of another person for an appreciable time without his consent (person must be aware)

Standard of care applicable to children/persons with physical disabilities/persons with special knowledge

The person in question must act as would a reasonable person of similar age, intelligence, and experience

Comparative negligence (new law)

The plaintiff's failure to exercise reasonable care for her own safety • Mixed • Pure

Property torts

Trespass to land Private nuisance Conversion

Assault

When there is an intentional attempt or offer to cause a harmful or offensive contact with another person, if that attempt or offer causes a reasonable apprehension of imminent battery in the other persons mind

Merchants

Under the Uniform Commercial Code, one who regularly deals in goods of the kind sold in the contract at issue, or holds himself out as having special knowledge or skill relevant to such goods, or who makes the sale through an agent who regularly deals in such goods or claims such knowledge or skill

Minimum contacts standard

Used in the United States law of civil procedure to determine when it is appropriate for a court in one state to assert personal jurisdiction over a defendant from another state

Nuisance law

When the plaintiff landowner has sustained a particular harm of sort that pertains to his own property and is not a harm common to the public generally • Can be either public (also "common") or private.

Commercial Appropriation of Name or Likeness or Right of Publicity

Without consent, commercially using someone's name, likeness, or identities for commercial purposes

Crime

a wrongful act that the state or federal government has identified as a crime

Slander

all other defamatory statements-mainly oral defamation (damages are to be proven-not permanent)

Trespass

any unauthorized or unprivileged intentional intrusion upon another's real property • Physically entering the plaintiffs land • Causing another to do so • Remaining on the land after one's right to remain has ceased • Failing to remove from the land anything one has a duty to remove • Causing an object or other thing to enter the land • Invading the airspace above the land or the subsurface beneath it

Presumed damages (under the common law for what?)

damages that are presumed under law to result naturally and necessarily from a tortious act and that do not require proof • slander per se

Special Damages

financially compensate the injured person for losses suffered due to the defendant's actions

Contributory negligence (old law)

how different from comparative negligence: Effect of plaintiff's negligence: complete bar to liability (Obsolete in most states now)

Respondent superior

is a legal doctrine that states that, in many circumstances, an employer is responsible for the actions of employees performed within the course of their employment.

Invitees

is to take reasonable steps to protect an invitee against dangerous on-premises conditions that he knows about or reasonably should discover, and that the invitee is unlikely to discover o Business visitor (customers, patrons, delivery persons) o Public invitees (in a public park to play, in library to read)

Licensees

is to warn licensee (door-to-door salesman, solicitors of money) of dangerous on-premises conditions that they are unlikely to discover o Enters property for own purpose w/consent o Door-to-door salesperson

Pure

o Figure out amount of P's harm o Compare relative negligence of P and D in % o D is responsible for % he caused and P is responsible for % he caused

Mixed

o Figure out amount of P's harm o Compare relative negligence of P and D in % o Is P responsible for 50% or more? If so, P gets nothing o Is P responsible for less than 50%? If so, D is responsible for % he caused and P is responsible for % he caused

Conversion

the defendant's intentional exercise of dominion or control over the plaintiff's personal property without the plaintiffs consent -Acquisition (theft, fraud, purchase stolen property) -Removal (moving the P's car without consent) -Transfer (selling stolen goods) -Withholding possession (refuse to return after repair) -Destruction or alteration of P's property -Using the P's property (Ferris Bueller's Day Off)

Duty

the law requires a person in the defendant's position to behave in a certain way for the benefit of plaintiff Common sources of duty 1. Statutes 2. Special relationships (in a legal sense) 3. Voluntarily engaging in an activity 4. Contracts

Libel

written or printed defamation or to other defamation having a physical form (damages are ASSUMED-don't have to prove)