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29 Cards in this Set
- Front
- Back
Negligent infliction of mental distress + physical harm
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Most jurisdictions hold that recovery for negligent infliction of mental distress can be had only when P has actually sustained physical contact
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Nominal damages
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Awardable in intentional tort cases NOT in negligent tort cases
Battery -- no physical harm or actual damages required (just intentional, unpermitted, offensive contact) |
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Res Ipsa Loquitur and > 1 party
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does not apply when more than one party may have been in control of the instrumentality causing the injury
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False imprisonment & length of time
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Length of time irrelevant to false imprisonment action;
Lack of actual damages also irrelevant |
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Private necessity & committing trespass
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If you have a private necessity defense, then you have not committed a trespass
But you are still liable for damage done to the property (so in that sense, the property owner will "win") |
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Complete loss of a chattel
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Conversion, not trespass to chattels (because too serious)
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Duty to rescue if you caused another's injury
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If D places another person in peril or causes his injury (even if not negligently), D has duty to make reasonable efforts to rescue victim or render aid
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Intentional torts and vicarious liability
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Normally employer not liable for vicarious torts of employee (except in jobs like bill collector or club bouncer)
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Licensee who should have noticed dangerous condition himself
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Then no duty to warn
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Negligence per se
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Standard of care in negligence case can be established by proving that a statute imposing a specific duty applies
Class of persons / class of events You're not held to statutory standard of care if compliance is impossible or more dangerous --> no prima facie case of negligence |
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Contributory negligence & reckless/wanton conduct
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Contributory negligence (minority rule): P's negligence bars recovery but NOT where D
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Joint and several liability
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Each defendant is liable for combined liability of all defendants
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Parent brings action on behalf of child
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Parent's contributory negligence is NOT imputed to child
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Products liability suit in negligence
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Helpful for Defense to show that no one had complained before (so no reason to know)
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Inadequate warning --> strict liability
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(1) product presents unreasonable risk of injury to users and bystanders
(2) no sufficient warning of the danger |
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Driver drives straight at pedestrian intending to scare her, but pedestrian does not notice because playing music
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NO liability for assault, which requires that pedestrian reasonably apprehend an immediate harmful contact
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Employers seeking indemnity
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Employer can recover 100% of judgment from negligent employee under common law indemnity rules
It is enough that the employee's negligence caused the injury and that the company was liable for the judgment solely because of its relationship to the plumber |
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Qualified privilege in defamation cases
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(1) Recipient had an interest in the information and
(2) it is reasonable for D to publish the statement (E.g., bank telling customer why account was overdrawn, even if erroneous) |
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Misdiagnosis
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Can be negligence
Dr's breach of duty of care could cause patient to continue to suffer from untreated condition (+ emotional distress from thinking condition was worse than it was) Cannot recover for negligent infliction of emotional distress if ONLY suffer damages, but can recover for emotional distress if P ALSO suffers physical injury |
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Infliction of emotional distress & zone of danger
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In most jurisdictions, bystander does not need to be within the zone of danger to recover
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Firefighter's rule
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Generally precludes a firefighter from recovering for injuries occurring on duty from risks inherent to his job, even if caused by another's negligence (e.g., dangerous conditions on land)
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Attractive nuisance doctrine
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No prima facie case if the child appreciates the risk (one of the elements is that the condition is dangerous because the child is unable to appreciate the risk)
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Defamation + mens rea
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publication to third party may be either intentional or negligent
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Using car in a way that constitutes material breach of bailment agreement
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A lends car to B who lends it for a long time to C
B then tries to give car back to A A can sue and recover fair market value of car (conversion) B is liable for conversion because he used the car in such a way as to constitute a material breach of bailment agreement Substantial interference with car = material breach |
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Contributory negligence + strict liability action
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Contrib negligence jurisdiction
Ordinary contributory negligence (failing to discover defect/guard against its existence) is NOT a defense to products liability action based on strict liability Assumption of risk (voluntarily and unreasonably encountering known risk) IS defense to strict liability |
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Wrongful pregnancy
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E.g., if doctor does not succeed in tying fallopian tubes and patient has baby.
Unclear whether parent can recover future child rearing expenses. CANNOT recover additional expenses of treating child's disease. CAN recover damages from pregnancy itself; impaired earning capacity as a result of pregnancy |
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Painting car the wrong color, causing racer to lose endorsements
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Racer can recover for trespass to chattels
(1) D's act interferes with P's right of possession in the chattel (2) Intent to perform the act (3) Causation (4) Damages |
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Publication in negligence action
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must be made either intentionally or negligently (e.g., must be reasonably foreseeable that defamatory statement would be overheard)
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Dramshop Act
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Create cause of action against vendors of intoxicating beverages in favor of a third person injured by drunk vendee
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