Torts Flashcards

Question

Extreme and Outrageous Conduct | IIED

Answer 1

This is conduct that transcends all bounds of decency. - Mere insults are not considered outrageous - Conduct that is repetitive in nature, defendant is a common carrier or innkeeper, plaintiff belongs to a fragile class of persons (young, elderly, pregnant (you have to know the woman is pregnant)) Conduct that is not normally outrageous may become so if: * It is continuous in nature * It is committed by a certain type of defendant (common carriers or innkeepers may be liable even for mere “gross insults”) OR It is directed toward a certain type of plaintiff (children, elderly persons, someone who is pregnant, supersensitive adults if the sensitivities are known to defendant)

Answer 2

Unlike for other intentional torts, recklessness as to the effect of the defendant’s conduct will satisfy the intent requirement.

Answer 3

Intentional infliction of emotional distress (“IIED”) is the only intentional tort to the person that requires actual damages, not nominal damages. To recover, the plaintiff must show that they suffered severe emotional distress, but proof of physical injury generally isn’t required. The more outrageous the conduct, the less proof of damages is required.

Answer 4

When the defendant’s conduct is directed at a third person, and the plaintiff suffers severe emotional distress because of it, the plaintiff may recover by showing either the prima facie case elements of emotional distress or that 1. they were present when the injury occurred; 2. the distress resulted in bodily harm or the plaintiff is a close relative of the third person; and 3. the defendant knew these facts.

Answer 5

1. Physical invasion 2. Of the plaintiff’s real property

Answer 6

The invasion may be by a person or object (for example, throwing a baseball onto the plaintiff’s land is a trespass). If intangible matter (for example, vibrations or odor) enters, the plaintiff may have a case for nuisance, but not for trespass since those things are not considered physical.

Answer 7

The plaintiff can recover without showing actual injury to the land.

Answer 8

Real property includes not only the surface, but also airspace and subterranean space for a reasonable distance. Note that the trespass claim belongs to the person with the right to possess the property, and not necessarily the owner, meaning that if you enter a rented apartment without permission, the tenant has a claim against you, not the landlord.

Answer 9

The defendant need intend only to enter onto that particular piece of land. The defendant need not know that the land belonged to another.

Answer 10

Act by the defendant that interferes with the plaintiff’s right of possession in a chattel

Answer 11

The plaintiff can recover without showing actual injury to the land.

Answer 12

The interference may either be an intermeddling (that is, directly damaging the chattel) OR a dispossession (that is, depriving the plaintiff of their lawful right of possession of the chattel).

Answer 13

Intent to trespass isn’t required; intent to do the act of interference is all that is needed. The defendant’s mistaken belief that they own the chattel is no defense.

Answer 14

Actual damages—not necessarily to the chattel, but at least to a possessory right—are required. **GEORGIA DISTINCTION:** Georgia law does not require proof of damages. If a plaintiff makes out a case for recovery except for the proving of actual damages, they will be entitled to nominal damages.

Answer 15

* Act by the defendant that interferes with the plaintiff’s right of possession in a chattel * Interference is serious enough in nature or consequences to warrant that the defendant pay the chattel’s full value

Answer 16

Acts of conversion include wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing a chattel.

Answer 17

As with trespass to chattels, mistake as to ownership is no defense; the only intent required is the intent to do the act that interferes with the plaintiff’s right of possession.

Answer 18

The longer the withholding period and the more extensive the use, the more likely it is to be conversion. A less serious interference is trespass to chattels.

Answer 19

Only tangible personal property and intangibles that have been reduced to physical form (for example, a promissory note) are subject to conversion.

Answer 20

The plaintiff may recover damages (fair market value at the time of conversion) or possession (replevin).

Answer 21

Small harm = Trespass to chattels Big harm = Conversion

Answer 22

- Defense to all intentional torts - Capacity Required

Answer 23

A person may interfere with the real or personal property of another when it is reasonably and apparently necessary in an emergency to avoid injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it

Answer 24

The defendant is not liable if the plaintiff expressly consents to the defendant’s conduct. Exceptions: 1. mistake will undo express consent if the defendant knew of and took advantage of the mistake; 2. consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter; and 3. consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation.

Answer 25

Apparent consent is that which a reasonable person would infer from custom and usage or the plaintiff’s conduct, for example, normal contacts inherent in body-contact sports, ordinary incidental contact, etc. Consent implied by law arises when action is necessary to save a person’s life or some other important interest in person or property.

Answer 26

When a question involves the defense of self, others, or property, ask the following three questions: *Is the privilege available? These privileges apply only for preventing the commission of a tort. Already committed torts do not qualify. *Is a mistake permissible as to whether the tort being defended against (battery, trespass, etc.) is actually being committed? *Was a proper amount of force used?

Answer 27

When a person reasonably believes that they are being or are about to be attacked, they may use such force as is reasonably necessary to protect against injury. The majority rule is that there is no duty to retreat. A reasonable mistake as to the existence of the danger is allowed. One may use only that force that reasonably appears to be necessary to prevent the harm (including deadly force). If more force than is reasonably necessary is used, the defense is lost.

Answer 28

One may use force to defend another when they reasonably believe that the other person could have used force to defend themselves. A reasonable mistake as to whether the other person is being attacked or has a right to defend themselves is permitted. The defender may use as much force as they could have used in self-defense if they were the one threatened with the injury.

Answer 29

One may use reasonable force to prevent the commission of a tort against their real or personal property. A request to desist or leave must first be made unless it clearly would be futile or dangerous. The defense does not apply once the tort has been committed; however, one may use force in hot pursuit of another who has tortiously dispossessed the owner of their chattels because the tort is viewed as still in progress if the defendant is in the act of fleeing. This defense is not available against one with a privilege. Whenever an actor has a privilege to enter onto the land of another because of necessity, recapture of chattels, etc., that privilege will supersede the privilege of the land possessor to defend their property. A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required. A mistake is not allowed as to whether the entrant has a privilege (for example, necessity) that supersedes the defense of property right, unless the entrant conducts the entry so as to lead the defendant to reasonably believe it is not privileged (such as by refusing to say what the necessity is). Reasonable force may be used. However, one may not use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm. Many of the “home defense” cases are really self-defense cases. The same principle makes it impermissible to set deadly mechanical devices or traps (such as spring guns) to protect property.

Answer 30

GEORGIA DISTINCTION A person is justified in using deadly force in defense of habitation when, based on reasonable belief: (1) the entry is made or attempted in a violent manner and entails a serious threat of bodily harm to an occupant; (2) the force is used against the person who is unlawfully and forcibly entering the habitation and the person is not a member of the household; or (3) the entry is made or attempted for the purpose of committing a felony and such force is necessary to prevent the felony. Deadly force may be used in defense of property other than habitation based on a reasonable belief that it is necessary to prevent the commission of a forcible felony.

Answer 31

A shopkeeper has a privilege to detain a suspected shoplifter for investigation. For the privilege to apply, the following conditions must be satisfied: *There must be a reasonable belief as to the fact of theft *The detention must be conducted in a reasonable manner and only nondeadly force can be used *The detention must be only for a reasonable period of time and only for the purpose of making an investigation

Answer 32

At common law, one could use force to reenter land only when an intruder came into possession tortiously, such as by a trespass. Under modern law, there are summary procedures such as ejectment for recovering possession of real property. Hence, resort to self-help is no longer allowed.

Answer 33

A person may interfere with the real or personal property of another when it is reasonably and apparently necessary in an emergency to avoid injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it

Answer 34

A person may interfere with the real or personal property of another when it is reasonably and apparently necessary in an emergency to avoid injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it

Answer 35

A defendant can raise public necessity as a defense if they acted to avert an “imminent public disaster.”

Answer 36

Private necessity can be a defense when the action was to prevent serious harm to a limited number of people. Under private necessity, the actor must pay for any injury they cause (unless the act was to benefit the property owner). - Must pay compensatory damages, but not liable for nominal/punitive damages

Answer 37

*A duty on the part of the defendant to conform to a specific standard of conduct for protection of the plaintiff against an unreasonable risk of injury *A breach of that duty by the defendant *The breach is the actual and proximate cause of the plaintiff’s injury *Damages

Answer 38

A duty of care is owed only to foreseeable plaintiffs. Have to be inside the zone of danger to be a foreseeable victim.

Answer 39

A rescuer is a foreseeable plaintiff when the defendant negligently put themselves or a third person in peril (danger invites rescue). They still have to establish all other elements of negligence. **Firefighter's Rule** - Firefighters and police officers are barred by the “firefighter’s rule” from recovering for injuries caused by the inherent risks of their jobs.

Answer 40

All persons owe a duty to behave with the same care as a hypothetical reasonably prudent person in the conduct of their activities to avoid injuring foreseeable victims. The reasonably prudent person standard is an objective standard. A defendant’s mental deficiencies and inexperience are not taken into account (in other words, low intelligence is no excuse). **Exception**: While the reasonably prudent person standard sets a minimum level of care, a defendant who has knowledge or experience superior to that of an average person is required to exercise that experience. **Exception**: The “reasonably prudent person” is considered to have the same physical characteristics as the defendant if those physical characteristics are relevant to the claim (but remember, one is expected to know one’s physical abilities and to exercise the care of a person with such knowledge—for example, a blind person should act as a reasonably prudent person who cannot see and not attempt to, for instance, drive a car).

Answer 41

A professional is required to possess the knowledge and skill of an average member of the profession or occupation in good standing. For doctors, most courts apply a national standard of care to evaluate their conduct. * Average, not reasonable * Compare to the real world, not imaginary * Empirical standard * Conform to colleagues * Custom of profession sets standards

Answer 42

A doctor has a duty to disclose the risks of treatment to enable a patient to give an informed consent. A doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent on learning of the risk. **GEORGIA DISTINCTION** Georgia applies informed consent only to surgical procedures and specified diagnostic procedures.

Answer 43

Under the traditional rule followed in many states, the duty owed a plaintiff on the premises for dangerous conditions on the land depends on the plaintiff’s status as unknown trespasser, known trespasser, licensee, or invitee.

Answer 44

No duty is owed to an undiscovered trespasser. So, an unknown trespasser always loses a premises liability case.

Answer 45

Limited duty of care. As to discovered or anticipated trespassers, the land possessor must warn of or make safe any conditions that are: * Artificial, * Highly dangerous, (involving risk of death or serious bodily harm) * Concealed, AND * Known to the land possessor in advance. ______ **Anticipated Trespasser**: Someone who has a pattern of trespassing in the past, people who take a shortcut through your property, etc.

Answer 46

A licensee is one who enters onto the land with the possessor’s permission for their own purpose or business, rather than for the possessor’s benefit. Social guests are considered licensees. As to licensees, the land possessor has a duty to warn of or make safe hazardous conditions that are: * Concealed * Known to the land possessor in advance The land possessor must exercise reasonable care in the conduct of “active operations” on the property. The possessor has no duty to inspect or repair.

Answer 47

Invitees enter onto the land in response to an invitation by the possessor of the land (meaning they enter for a purpose connected with the business of the land possessor or enter as members of the public for a purpose for which the land is held open to the public). An invitee will lose invitee status if they exceed the scope of the invitation. The landowner or occupier owes a duty to invitees regarding hazardous conditions that are: * Concealed * Known to the land possessor in advance or could have been discovered by a reasonable inspection

Answer 48

No duty owed for risks inherent to job Firefighter's Rule

Answer 49

Most courts impose on a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous artificial conditions on their property. To establish the doctrine’s applicability and prove that the defendant’s actions were unreasonable, the plaintiff must show: * A dangerous condition on the land that the owner is or should be aware of * The owner knows or should know that children might trespass on the land * The condition is likely to cause injury (it is dangerous because of the child’s inability to appreciate the risk) * The expense of remedying the situation is slight compared with the magnitude of the risk For liability to attach, the child does not have to be attracted onto the land by the dangerous condition, nor is the attraction alone enough for liability.

Answer 50

A landowner who permits the general public to use their land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

Answer 51

There generally is no duty to protect someone off the premises from natural conditions on the premises; however, there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land. Also, one must carry on activities on the premises so as to avoid unreasonable risk of harm to others off the premises.

Answer 52

The lessee (tenant) has a general duty to maintain the premises. The lessor (landlord) must warn of existing defects of which they are aware or have reason to know, and which they know the lessee is not likely to discover on a reasonable inspection. If the lessor covenants to repair, they are liable for unreasonably dangerous conditions. If the lessor volunteers to repair and does so negligently, they are liable. If the guest of a lessee is injured, the lessor may be liable. However, the lessee may also be liable to the guest because of the lessee’s status as the owner/occupier of the premises.

Answer 53

A vendor must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and which the vendor knows the vendee is not likely to discover on a reasonable inspection.

Answer 54

A clearly stated specific duty imposed by a statute providing for criminal penalties (including fines for regulatory offenses and ordinances, such as for speeding) may replace the more general common law duty of due care if: * The plaintiff is within the protected class * The statute was designed to prevent the type of harm suffered by the plaintiff

Answer 55

GEORGIA DISTINCTION Georgia provides that a tort cause of action will not be implied from the violation of a criminal statute enacted after July 1, 2010. The right to a civil action must be expressly stated in the statute or exist independently of the statute for a tort action to be brought.

Answer 56

Violation of some statutes may be excused where compliance would cause more danger than violation or where compliance would be beyond the defendant’s control. Use reasonable prudent person standard

Answer 57

A special relationship between the parties (for example, parent-child) may create a duty to act. Similarly, common carriers, innkeepers, shopkeepers, and others that gather the public for profit owe duties of reasonable care to aid or assist their patrons.

Answer 58

One has a duty to assist someone they have negligently or innocently placed in peril.

Answer 59

A special relationship between the parties (for example, parent-child) may create a duty to act. Similarly, common carriers, innkeepers, shopkeepers, and others that gather the public for profit owe duties of reasonable care to aid or assist their patrons.

Answer 60

One may assume a duty to act by acting (for example, once the defendant undertakes to aid someone, they must do so with reasonable care). Exception to exception: Many states have enacted Good Samaritan statutes, which exempt doctors, nurses, etc., from liability for ordinary, but not gross, negligence.

Answer 61

GEORGIA DISTINCTION Georgia’s Good Samaritan Statute exempts from liability for ordinary negligence not only members of the medical profession but also members of the public who act voluntarily and gratuitously to render emergency treatments.

Answer 62

Generally, there is no duty to prevent a third person from injuring another. An affirmative duty may be imposed, however, if one has the actual ability and authority to control a person’s actions, and knows or should know the person is likely to commit acts that would require exercise of this control.

Answer 63

Common carriers and innkeepers are held to a very high degree of care, meaning they are liable for slight negligence. For the higher common carrier and innkeeper standards to apply, the plaintiff must be a passenger or guest.

Answer 64

A guest in an automobile is owed a duty of ordinary care. In the few guest statute states, one is liable to nonpaying passengers only for reckless tortious conduct.

Answer 65

In a bailment relationship, the bailor transfers to the bailee possession of the chattel but not title (for example, bailor loans their car to bailee). **Duties Owed by Bailee** The bailee’s standard of care depends on who benefits from the bailment: 1. for a sole benefit of the bailor bailment, there is a low standard of care; 2. for a sole benefit of the bailee bailment, there is a high standard of care; and 3. for a mutual benefit bailment (typically a bailment for hire), there is the ordinary care standard. The modern trend applies a duty of ordinary care under the circumstances, whereby the type of bailment is just one factor taken into account. **Duties Owed by Bailor** For a sole benefit of the bailee bailment, the bailor must inform the bailee of known, dangerous defects in the chattel. For a bailment for hire, the bailor must inform the bailee of chattel defects of which they are or should be aware.

Answer 66

A defendant must act as a reasonably prudent person would under the same emergency conditions. The emergency is not to be considered, however, if it is of the defendant’s own making.

Answer 67

In addition to negligence, must show: - Plaintiff was in zone of physical danger - Plaintiff suffers physical symptoms from distress

Answer 68

The plaintiff will be considered to be within the zone of danger of the defendant’s negligent acts when the plaintiff is sufficiently close to the defendant such that they are subject to a high risk of a physical impact.

Answer 69

In a near miss case, most courts require that the emotional distress caused by defendant’s conduct manifest itself in physical symptoms (note that severe shock to the nervous system that causes physical symptoms will satisfy this requirement). A growing minority of states have dropped the requirement of physical symptoms.

Answer 70

In addition to negligence, must show: - Plaintiff and 3rd party are closely related - Plaintiff was present at the scene and observed event ________________ A bystander outside the “zone of danger” of physical injury who sees the defendant negligently injuring another can recover damages for their own distress as long as: * The plaintiff and the person injured by the defendant are closely related * The plaintiff was present at the scene of the injury and personally observed or perceived the event

Answer 71

GEORGIA DISTINCTION Georgia does not permit recovery of mental distress damages by a bystander who witnesses injury to another, even if the bystander was in the “zone of danger.” In Georgia, actionable mental distress must result from impact on, or conduct directed toward, the plaintiff. However, when a parent and child sustain a direct physical impact and physical injuries through another’s negligence, and the child dies as the result of such negligence, the parent may recover for serious emotional distress from witnessing the child’s suffering and death.

Answer 72

Plaintiff can recovery if it is highly foreseeable that careless performance by Defendant will produce emotional distress given the nature of the relationship The defendant may be liable for directly causing the plaintiff severe emotional distress when a duty arises from the relationship (typically commercial in nature) between the plaintiff and a defendant, such that the defendant’s negligence has great potential to cause emotional distress (for example, doctor’s misdiagnosis that patient has terminal illness; mortuary’s negligent cremation of deceased contrary to family’s instructions). Most states drop the requirement of physical symptoms in this situation as well.

Answer 73

Concrete, specific behavior by Defendant that falls short of relevant standard of care. Breach can be by: - Custom or Usage - Affirmative act - Omission - Violation of Statute - Res ipsa loquitur

Answer 74

When the standard of care is “reasonable prudence,” evidence of the custom or usage of others may be used to establish how a reasonable person should have behaved under the circumstance. However, this evidence is not conclusive on the question of whether certain conduct amounted to negligence. For example, although certain behavior is custom in an industry, a court may find that the entire industry is acting negligently.

Answer 75

Where the duty of care is set by a statute under the rules that govern using statutes in negligence litigation, proof of violation of the statute is conclusive evidence of breach of duty. This is known as “negligence per se.” Causation and damages must still be established by the plaintiff.

Answer 76

In some cases, the very occurrence of an event may tend to establish a breach of duty. The doctrine of res ipsa loquitur requires the plaintiff to show that: * Accident is normally associated with negligence * Accident would normally be due to the negligence of someone in Defendant's position This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant. Establishing res ipsa loquitur means no directed verdict for the defendant.

Answer 77

GEORGIA DISTINCTION The rule of res ipsa loquitur applies only to ordinary negligence cases. It may not be used to establish breach of duty in a medical malpractice case. It is presumed that medical or surgical services were performed in an ordinary and skillful manner.

Answer 78

Where res ipsa loquitur is established, the plaintiff has made a prima facie case and no directed verdict may be given for the defendant. The plaintiff can still lose, however, if the inference of negligence is rejected by the trier of fact.

Answer 79

Causation in Fact and Proximate Causation

Answer 80

"But for" Test An act or omission is a factual cause of an injury when the injury would not have occurred “but for” the act or omission. A defendant can refute this by showing that the plaintiff would have still been injured “even if” the act or omission did not occur.

Answer 81

Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, the defendant’s conduct is the cause in fact if it was a substantial factor in causing the injury.

Answer 82

This test applies when there are two acts, only one of which causes injury, but it is not known which one. The burden of proof shifts to defendants, and each must show that his negligence is not the actual cause. Distinguish these last two tests: Under the merged causes approach, both parties caused the harm. Under the unascertainable causes approach, although both parties acted negligently, only one caused the harm.

Answer 83

A defendant generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts. This is a foreseeability test.

Answer 84

The following intervening forces that are normal responses or reactions to the situation created by the defendant’s negligent act are almost always foreseeable: * Medical malpractice * Negligence of rescuers * Protection or reaction forces to the defendant’s conduct, including efforts to protect person or property * Disease or accident substantially caused by the original injury Intervening forces that are not just a natural response or reaction to the situation created by the defendant’s conduct may be foreseeable if the defendant’s negligence increased the risk of harm from these forces. These intervening forces include (1) negligent acts of third persons, (2) crimes and intentional torts of third persons, and (3) acts of God.

Answer 85

Intervening forces that produce unforeseeable results (results not within the increased risk created by the defendant’s negligence) are generally deemed unforeseeable and superseding Superseding forces break the causal connection between the defendant’s initial negligent act and the plaintiff’s ultimate injury, thus relieving the defendant of liability.

Answer 86

Damage is an essential element of negligence; thus, damage will not be presumed (and nominal damages are not available).

Answer 87

In all cases, the defendant takes the plaintiff as they find the plaintiff; meaning, the defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable. This is also known as the “eggshell-skull” plaintiff rule.

Answer 88

The plaintiff is to be compensated for all their damages (past, present, and prospective), both economic damages (such as medical expenses and lost wages) and noneconomic damages (such as pain and suffering). A plaintiff suffering physical injury also may recover damages for any resulting emotional distress.

Answer 89

The measure of damage is the reasonable cost of repair or, if the property is totally or nearly destroyed, its fair market value at the time of the accident. Emotional distress damages generally cannot be recovered for negligent harm to property. Under this last stated rule, a person cannot recover for emotional distress if another party negligently injures or kills their pet.

Answer 90

Punitive damages generally are not available in negligence cases. However, a plaintiff may recover punitive damages if defendant’s conduct is “wanton and willful,” reckless, or malicious. **GEORGIA DISTINCTION** Georgia limits the recovery of punitive damages to a maximum of $250,000 in all cases except products liability actions and cases in which the defendant acted with the specific intent to cause harm or while under the influence of alcohol or drugs.

Answer 91

Nonrecoverable items include: 1. interest from the date of damage in a personal injury action (sometimes called “pre-judgment interest”), and 2. attorneys’ fees.

Answer 92

As in all cases, the plaintiff has a duty to take reasonable steps to mitigate damages (for example, seek appropriate treatment).

Answer 93

Damages are not reduced just because the plaintiff received benefits from other sources (for example, health insurance).

Answer 94

Contributory negligence is negligence on the part of the plaintiff that contributes to the plaintiff’s injuries. The standard of care for contributory negligence is the same as for ordinary negligence. Also, the plaintiff’s violation of an applicable statute may be used to establish their contributory negligence.

Answer 95

GEORGIA DISTINCTION In contrast to the age requirement in a negligence action against a child (discussed previously), there is no minimum age for determining a child’s standard of care when the child (or the child’s parents) is bringing the action. Whether a child under the age of 13 can be found contributorily negligent depends on that child’s mental and physical capabilities, making it a question for the jury. However, most cases have held that a child under the age of six cannot be found contributorily negligent.

Answer 96

Contributory negligence is a defense to negligence proved by the defendant’s violation of an applicable statute unless the statute was designed to protect this class of plaintiffs from their incapacity and lack of judgment (for example, a child injured after darting into street in school zone and getting hit by speeding car of the defendant).

Answer 97

Contributory negligence is not a defense to wanton and willful misconduct or intentional tortious conduct.

Answer 98

Contributory negligence completely barred the plaintiff’s right to recovery at common law. However, almost all jurisdictions now favor a comparative negligence system

Answer 99

Last clear chance permits a plaintiff to recover despite their contributory negligence. Under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence. (Last clear chance is essentially the plaintiff’s rebuttal to the defense of contributory negligence.) **a. Helpless Peril** In many states, if the plaintiff is in “helpless peril,” the defendant will be liable if they knew or should have known of the plaintiff’s predicament. **b. Inattentive Peril** In “inattentive peril” situations (that is, where the plaintiff could have extricated themselves if attentive), the defendant must actually have known of the plaintiff’s predicament. **c. Prior Negligence Cases** For the last clear chance doctrine to apply, the defendant must have been able, but failed, to avoid harming the plaintiff at the time of the accident. If the defendant’s only negligence occurred earlier, the doctrine will not apply.

Answer 100

As a general rule, the contributory negligence of a third party will be imputed to a plaintiff (and bar the plaintiff’s claim) only when the relationship between the third party and the plaintiff is such that a court could find the plaintiff vicariously liable for the third party’s negligence. Negligence is imputed in employer-employee, partner, and joint venturer relationships. Negligence is not imputed between spouses, parent and child, and automobile owner and driver.

Answer 101

The plaintiff may be denied recovery if they assumed the risk of any damage caused by the defendant’s act. The plaintiff must have: * Known of the risk and * Voluntarily proceeded in the face of the risk

Answer 102

Knowledge may be implied where the risk is one that an average person would clearly appreciate. The plaintiff may not be said to have assumed the risk where there is no available alternative to proceeding in the face of the risk or in situations involving fraud, force, or an emergency. Also, common carriers and public utilities may not limit their liability by disclaimer, and members of a class protected by statute will not be deemed to have assumed any risk.

Answer 103

The risk may be assumed by an express agreement.

Answer 104

Assumption of risk is not a defense to intentional torts, but it is a defense to wanton and willful misconduct.

Answer 105

Defendant shows Plaintiff failed to exercise proper care for own safety. In comparative negligence states, the plaintiff’s contributory negligence is not a complete bar to recovery. Rather, the trier of fact weighs the plaintiff’s negligence and reduces damages accordingly (for example, if the plaintiff is 10% at fault, their damages are reduced by 10%). A majority of states have adopted partial comparative negligence, which still bars the plaintiff’s recovery if their negligence was more serious than the defendant’s negligence (or in some states at least as serious as the defendant’s). If more than one defendant has contributed to the plaintiff’s injury, the plaintiff’s negligence will be compared with the total negligence of all the defendants combined. States that have adopted pure comparative negligence allow recovery no matter how great plaintiff’s negligence was.

Answer 106

GEORGIA DISTINCTION Georgia has adopted a “partial” comparative negligence system by statute. Under this system, a plaintiff may not recover if they are 50% or more responsible for the injury or damages claimed.

Answer 107

GEORGIA DISTINCTION Georgia still recognizes the last clear chance doctrine. In “helpless peril” situations, Georgia requires that the defendant have actual knowledge of the plaintiff’s peril. It is not sufficient that the defendant “should have known” of the situation.

Answer 108

GEORGIA DISTINCTION Implied assumption of risk is still a separate defense that will totally exculpate the defendant. Also, a plaintiff will be completely barred from recovery when the plaintiff, through the exercise of reasonable care, could have avoided the consequences of the defendant’s prior negligence. Implied assumption of risk does not apply to rescuers that are volunteers or bystanders, unless the rescuer’s actions are so imprudent and beyond reasonably appropriate means that they must be classified as reckless or wanton. Exception: Trespassing Animals An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals.

Answer 109

An owner is not strictly liable for injuries caused by domestic animals (including farm animals) unless they have knowledge of that particular animal’s dangerous propensities that are not common to the species. Injury caused by the normally dangerous characteristics of domestic animals (for example, bulls or honeybees) does not create strict liability.

Answer 110

GEORGIA DISTINCTION Georgia’s “dog bite” statute has been interpreted as requiring the plaintiff to show that the animal’s owner had prior knowledge of the animal’s dangerous or vicious propensities. The plaintiff can establish vicious propensity by showing that the animal was required by ordinance to be at heel or on a leash, and the animal was not at heel or on a leash when the incident occurred.

Answer 111

**Wild Animals** An owner is strictly liable to licensees and invitees for injuries caused by wild animals (even those kept as pets). **Strict Liability Not Available to Trespassers** Strict liability will generally not be imposed in favor of trespassers. To recover for their injuries from a wild animal (or abnormally dangerous domestic animal) a trespasser must prove the owner’s negligence.

Answer 112

Courts generally impose two requirements for finding an activity to be abnormally dangerous: * The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors * The activity is not a matter of common usage in the community As with negligence, the defendant’s liability extends only to foreseeable plaintiffs. Also, the harm must result from the kind of danger to be anticipated from the dangerous activity (or animal) including harm caused by fleeing from the perceived danger. Strict liability does not apply when the injury is caused by something other than the dangerous aspect of the activity (for example, a dynamite truck suddenly blows a tire and hits a pedestrian but does not explode).

Answer 113

Products liability refers to the liability of a supplier of a defective product to someone injured by the product.

Answer 114

There are five theories of liability that a plaintiff may use: 1. Intent 2. Negligence 3. Implied warranties of merchantability and fitness for a particular purpose 4. Representation theories (express warranty and misrepresentation) 5. Strict liability

Answer 115

To find liability under a strict liability theory, the plaintiff must show: * The defendant is a merchant (in other words, a commercial supplier of the product) * The product is defective * The product was not substantially altered since leaving the defendant’s control * The plaintiff was making a foreseeable use of the product at the time of the injury

Answer 116

GEORGIA DISTINCTION Georgia has imposed strict liability by statute on manufacturers, but a distributor of a defective product is not strictly liable in tort. Furthermore, Georgia does not recognize the “ostensible manufacturer” doctrine (where the seller or distributor puts its brand name on a product actually manufactured by another) as a means of extending liability to a mere seller or distributor.

Answer 117

Someone who routinely deals in goods of a type Casual seller is not a merchant Service providers are not a merchant Includes commercial lessors (people who rent products, rather than sell) Included entire distribution chain - manufacturers, wholesalers, and retailers.

Answer 118

Manufacturing Defect Design Defect Information Defect

Answer 119

If a product emerges from manufacturing different from and more dangerous than the products that were made properly, it has a manufacturing defect. The defendant will be liable if the plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect (the defendant must anticipate reasonable misuse). (Note this also applies to defective food products.)

Answer 120

When the risks associated with product's design outweigh the utility of design. When all products of a line are the same but have dangerous propensities, they may be found to have a design defect. Manufacturers will not be held liable for some dangerous products (for example, knives) if the danger is apparent and there is no safer way to make the product. The plaintiff usually must show that the defendant could have made the product safer, without serious impact on the product’s utility or price (the “feasible alternative” approach).

Answer 121

A product’s noncompliance with government safety standards establishes that there is a defect, while compliance with safety standards (including labeling requirements) is evidence—but not conclusive—that the product is not defective.

Answer 122

Hidden risks without Adequate Warning/Instructions A product may be defective as a result of the manufacturer’s failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent to users. May need to have information on how to mitigate the risk. For prescription drugs and medical devices, warnings given to “learned intermediaries” (for example, the prescribing physician) will usually suffice in lieu of warnings to the patient.

Answer 123

The plaintiff must show that the product has not been significantly altered since it left the defendant’s control. If the product moved through normal channels of distribution, it will be inferred that the product was not altered and that the defect existed when the product left the defendant’s control.

Answer 124

The plaintiff must have been making a foreseeable use of the product at the time of the injury. A defendant will not be held liable for dangers not foreseeable at the time of marketing. A “foreseeable” use does not mean an “intended” or an “appropriate” use. Many products are commonly misused in ways that could be considered foreseeable.

Answer 125

Physical injury or property damage must be shown. Recovery will be denied if the sole claim is for economic loss.

Answer 126

Disclaimers are irrelevant in strict liability cases if personal injury or property damages occur.

Answer 127

In contributory negligence states, contributory negligence is no defense if the plaintiff has failed to realize the danger or guard against it. It is a defense if the plaintiff knew of the danger and their unreasonable conduct was the very cause of the harm from the wild animal or abnormally dangerous activity or defective product. Assumption of the risk is a good defense to strict liability. Many comparative negligence states apply their comparative negligence rules to strict liability cases. **GEORGIA DISTINCTION** Georgia does not apply its comparative negligence rules to strict liability actions. Hence, the plaintiff’s failure to discover or guard against the existence of a danger is no defense, while assumption of risk is a complete defense.

Answer 128

A nuisance is an invasion of property rights by tortious conduct. There are two types of nuisance: private and public. Interference must be substantial

Answer 129

Private nuisance is a substantial, unreasonable interference with another private individual’s use or enjoyment of property that the other individual actually possesses or has a right of immediate possession.

Answer 130

Substantial interference is interference that is offensive, inconvenient, or annoying to the average person in the community. It is not substantial if it is merely the result of the plaintiff’s hypersensitivity or specialized use of their own property. Routine and relatively innocuous activity that is merely annoying (such as using a lawn mower early in the morning) also does not constitute substantial interference.

Answer 131

To establish unreasonable interference, required for nuisances based on intent or negligence, the severity of the inflicted injury must outweigh the utility of the defendant’s conduct. In balancing these respective interests, courts take into account that every person is entitled to use their own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courses of conduct open to the defendant.

Answer 132

In a trespass, there is an interference with the landowner’s exclusive possession by a physical invasion; in a private nuisance, there is an interference with use or enjoyment. Additionally, trespass to land requires a physical invasion of the plaintiff’s property, which does not include intangible forces such as smoke or foul odors. However, a claim for nuisance can be based on those types of intangible forces.

Answer 133

Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community, for example, using a building for criminal activities such as prostitution. Recovery by a private party is available for a public nuisance only if the private party suffered unique damage not suffered by the public at large.

Answer 134

**Damages** The plaintiff usually will be awarded damages. I**njunctive Relief** If the legal remedy of damages is unavailable or inadequate (for example, the nuisance will cause irreparable injury), injunctive relief will be awarded. In this case, the court will consider the relative hardships. However, hardships will not be balanced if the defendant’s conduct was willful. **Abatement by Self-Help** In the case of a private nuisance, self-help abatement is available after notice to the defendant and their refusal to act. Only necessary force may be used. In public nuisance cases, only a public authority or a private party who has suffered some unique damage can seek an injunction or abatement.

Answer 135

**Legislative Authority** Legislative authority for “nuisance activity” (for example, a zoning ordinance) is not an absolute defense but is persuasive. **Conduct of Others** No one actor is liable for all damage caused by concurrence of their acts and others. **Contributory Negligence** Contributory negligence generally is no defense to nuisance unless the plaintiff’s case rests on a negligence theory. **Coming to the Nuisance** One may “come to a nuisance” (purchasing land next to an already existing nuisance) and, thereafter, pursue an action. It is generally not a bar to the plaintiff’s action unless the plaintiff “came to the nuisance” for the sole purpose of bringing a harassing lawsuit. **GEORGIA DISTINCTION** In Georgia, agricultural facilities such as farms are not subject to public or private nuisance actions if the facility has been in operation for two years or more unless the nuisance results from a negligent, improper, or illegal operation.

Answer 136

Vicarious liability is liability that is derivatively imposed. This means that one person (the active tortfeasor) commits a tortious act against a third party and another person (the passive tortfeasor) will be liable to the third party for this act.

Answer 137

GEORGIA DISTINCTION Georgia refers to the concept of “vicarious liability” as imputable negligence. For the negligence of one person to be properly imputable to another, the one to whom it is imputed must stand in such relation or privity to the negligent person as to create the relationship of principal and agent.

Answer 138

An employer will be vicariously liable for tortious acts committed by their employee if the tortious acts occur within the scope of the employment relationship. This concept is also known as the “doctrine of respondeat superior.” **a. Frolic or Detour** An employee making a minor deviation from their employer’s business for their own purposes is still acting within the scope of employment. If the deviation in time or geographic area is substantial, the employer is not liable. **b. Intentional Torts** It is usually held that intentional tortious conduct by employees is not within the scope of employment. **Exceptions:** * The employee is furthering the business of the employer, for example, removing customers from the premises because they are rowdy * Force is authorized in the employment, for example, a bouncer * Friction is generated by the employment, for example, bill collector **c. Liability for Own Negligence** Employers may be liable for their own negligence by negligently selecting or supervising their employees. (This is not vicarious liability.)

Answer 139

In general, the hiring party (the principal) will not be vicariously liable for the tortious acts of an independent contractor (the agent) when the hiring party does not control the manner and method in which the independent contractor performs the job. There are public policy exceptions, however, for example, where a duty is simply nondelegable, such as the duty of a business to keep its premises safe for customers. **Liability for Own Negligence** The employer may be liable for their own negligence in selecting or supervising the independent contractor (for example, a hospital may be liable for contracting with an unqualified and incompetent health care provider who negligently treats the hospital’s patient). (This is not vicarious liability.)

Answer 140

Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture.

Answer 141

The general rule is that an automobile owner is not vicariously liable for the tortious conduct of another person driving their automobile. In some jurisdictions, courts have developed exceptions to this rule to hold an automobile owner liable under specific circumstances.

Answer 142

In many states, the owner is liable for tortious conduct of immediate family or household members who are driving with the owner’s express or implied permission. **Permissive Use** A number of states have now gone further by imposing liability on the owner for damage caused by anyone driving with the owner’s consent. However, under a federal statute, rental car companies are not vicariously liable for the negligent accidents of their customers even if they do business in a “permissive use” state. **Liability for Own Negligence—Negligent Entrustment** An owner may be liable for their own negligence in entrusting the car to a driver. Some states have also imposed liability on the owner if they were present in the car at the time of the accident, on the theory that they could have prevented the negligent driving, and hence were negligent in not doing so. (This is not vicarious liability.) **Driver Acting as Agent for Owner** The car owner will be liable if the driver is acting as the owner’s agent, for instance using the car to perform an errand for the owner.

Answer 143

GEORGIA DISTINCTION Georgia has adopted the family car doctrine, whereby the owner is liable for the negligent driving of a family or household member using a “family” car with permission. Georgia has not enacted a “permissive use” statute.

Answer 144

Under the general rule, the bailor is not vicariously liable for the tortious conduct of their bailee. **Negligent Entrustment** As above, the bailor may be liable for their own negligence in entrusting the bailed object. (This is not vicarious liability.)

Answer 145

A parent is not vicariously liable for the tortious conduct of their child at common law. Note, however, that most states, by statute, make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount (for example, $10,000). **Child Acting as Agent for Parents** Courts may impose vicarious liability if the child committed a tort while acting as the agent for the parents. **Parent Liable for Own Negligence** The parent may be held liable for their own negligence in allowing the child to do something, for example, use a dangerous object without proper instruction. Furthermore, if the parent is apprised of the child’s conduct on past occasions showing a tendency to injure another’s person or property, they may be liable for not using due care in exercising control to mitigate such conduct, for example, by allowing the child to play with other children that they have a history of attacking.

Answer 146

GEORGIA DISTINCTION Georgia makes every parent or other person having custody of a minor child liable up to $10,000 for the child’s willful or malicious acts that result in reasonable medical expenses to another and/or damage to the property of another.

Answer 147

**Common Law** No liability was imposed on vendors of intoxicating beverages for injuries resulting from the patron’s intoxication, whether the injuries were sustained by the patron or by a third person as a result of the patron’s conduct. **Modern Law** Many states, in order to avoid this common law rule, have enacted Dramshop Acts. Such acts usually create a cause of action in favor of any third person injured by the intoxicated patron. Several courts have imposed liability on tavernkeepers even in the absence of a Dramshop Act. This liability is based on ordinary negligence principles (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liability.

Answer 148

GEORGIA DISTINCTION While the language of Georgia’s Dramshop statute imposes a scienter requirement, case law has established that actual knowledge is not always required. If, in the exercise of reasonable care, one selling alcoholic beverages to a minor should have known that the recipient was a minor and would be driving soon, the seller will be deemed to have knowledge of that fact.

Answer 149

Under the traditional common law rule, when two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable (that is, liable to the plaintiff for the entire damage incurred). If the injury is divisible, each defendant is liable only for the identifiable portion. **Defendants Acting in Concert** When two or more defendants act in concert and injure the plaintiff, each is jointly and severally liable for the entire injury. This is so even if the injury is divisible **Statutory Limitations** Many states have abolished joint liability in cases based on fault either 1. for those defendants judged to be less at fault than the plaintiff, or 2. for all defendants regarding noneconomic damages. In these cases, liability will be proportional to the defendant’s fault.

Answer 150

GEORGIA DISTINCTION Georgia has eliminated joint liability for all claims involving multiple tortfeasors. In such a case, the trier of fact must apportion fault among all persons who contributed to the injury, including nonparties. Hence, a defendant will be liable only for the damages charged against them, and there is no right of contribution.

Answer 151

Recovery of full payment is a “satisfaction.” Only one satisfaction is allowed, so a plaintiff cannot pursue other defendants in the case once their damage claims have been fully paid. Until there is satisfaction, however, one may proceed against all jointly liable parties.

Answer 152

In most states, a release of one tortfeasor does not discharge other tortfeasors unless it is expressly provided for in the release agreement.

Answer 153

Contribution and indemnity are doctrines that determine how joint tortfeasors allocate between them the damages they must pay to a successful plaintiff. Neither of these doctrines affects how much the plaintiff receives. Rather, they deal with claims by a defendant against other joint tortfeasors to determine how much of the total award each of them ultimately must pay.

Answer 154

The rule of contribution allows a defendant who pays more than their share of damages under joint and several liability to have a claim against other jointly liable parties for the excess; in other words, it apportions responsibility among those at fault. *Methods of Apportionment * **Comparative Contribution**: Most states have a comparative contribution system, whereby contribution is imposed in proportion to the relative fault of the various defendants. * **Equal Shares**: In a minority of states, apportionment is in equal shares regardless of degrees of fault. * Contribution Tortfeasor Must Have Liability The contribution defendant must be originally liable to the plaintiff. If the contribution defendant has a defense that would bar liability (such as intra-family tort immunity), they are not liable for contribution. *Not Applicable to Intentional Torts Contribution is not allowed among intentional tortfeasors.

Answer 155

Indemnification involves shifting the entire loss between or among tortfeasors. Indemnity is available in the following circumstances: * In vicarious liability situations * Under strict products liability for the non-manufacturer For contribution to apply, generally both defendants must have a measurable degree of culpability for the tort; on the other hand, indemnity usually applies when the paying defendant is much less responsible than the nonpaying defendant or is liable only vicariously because of their relationship with the nonpaying defendant.

Answer 156

As noted above, most comparative negligence states have adopted a comparative contribution system where contribution is in proportion to the relative fault of the various defendants.

Answer 157

Either spouse may bring an action for indirect interference with consortium and services caused by the defendant’s intentional or negligent tortious conduct against the other spouse.

Answer 158

A parent may maintain an action for loss of a child’s services and consortium as a result of the defendant’s tortious conduct, whether intentional or negligent. A child, however, has no action in most states against one who tortiously injures their parent. GEORGIA DISTINCTION In addition to recovery for loss of services, parents can recover against a person who provides intoxicating beverages to their minor child or engages the child in a game of chance for money or valuables without parental consent.

Answer 159

Actions for interference with family relationships are derivative. Hence, any defense that would reduce or bar recovery by the injured family member also reduces or bars recovery for interference with the family relationship.

Answer 160

Survival acts allow one’s cause of action to survive the death of one or more of the parties. The acts apply to actions involving torts to property and torts resulting in personal injury. However, torts invading intangible personal interests (for example, defamation, invasion of right of privacy, malicious prosecution) expire upon the victim’s death. **GEORGIA DISTINCTION ** Unlike in most states, a pending libel action in Georgia will survive the death of the plaintiff and be actionable under the state’s survival statute.

Answer 161

Wrongful death acts grant recovery for pecuniary injury resulting to the spouse and next of kin. A decedent’s creditors have no claim against the amount awarded. Recovery is allowed only to the extent that the deceased could have recovered in an action had they lived. Hence, the decedent’s contributory negligence reduces the wrongful death recovery in comparative negligence states. Similarly, a potential beneficiary’s contributory negligence reduces their share of the recovery in comparative negligence states. **GEORGIA DISTINCTION** The measure of recovery in Georgia for wrongful death is the full value of life of the decedent, which includes loss of support and loss of companionship. In cases where the death resulted from a crime or from negligence, funeral, medical, and other expenses may also be recovered.

Answer 162

Under the traditional view, one member of a family unit could not sue another in tort for personal injury. Today, most states have abolished spousal immunity. A slight majority have also abolished parent-child immunity (but generally do not allow children to sue merely for negligent supervision). Those that retain parent-child immunity do not apply it in (1) cases alleging intentional tortious conduct, or (2) automobile accident cases to the extent of insurance coverage. **GEORGIA DISTINCTION** Georgia still follows the traditional views with respect to intra-family tort immunity. However, if the plaintiff can show that the traditional policy reasons for applying immunity (for example, preservation of marital harmony and avoidance of collusion) are not present, the doctrine will not be applied. Furthermore, in wrongful death actions, the interspousal immunity doctrine violates the constitutional right of equal protection.

Answer 163

In varying degrees, federal, state, and municipal tort immunity has been eliminated. Where it survives, immunity attaches to governmental, not proprietary, functions. **Federal Government** Under the Federal Tort Claims Act, the United States has waived immunity for tortious acts. However, immunity will still attach for (1) assault, (2) battery, (3) false imprisonment, (4) false arrest, (5) malicious prosecution, (6) abuse of process, (7) libel and slander, (8) misrepresentation and deceit, and (9) interference with contract rights. Immunity is also not waived for acts that are characterized as "discretionary" (those involving considerations of political or economic policy, usually made by senior officials); acts termed "ministerial" (those performed at the operational level of government) are not immune from liability.

Answer 164

GEORGIA DISTINCTION Under Georgia’s state tort claims act, the state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment. This waiver applies only to actions brought in a Georgia court and does not apply to units of local government. Sovereign immunity is retained for a variety of activities, including: (1) conduct by a state officer or employee exercising due care in the execution of a statute, regulation, etc.; (2) performance of a discretionary function by the state officer or employee; (3) legislative, judicial, quasi-judicial, or prosecutorial action or inaction; (4) failure to provide police or fire protection; (5) various intentional and quasi-intentional torts committed by state officers or employees (for example, assault, battery, false imprisonment, defamation, malicious prosecution); (6) inspection, licensing, planning, and financing functions; and (7) activities of the Georgia National Guard or organized militia while on duty (except vehicular accidents). Recovery for a single person for a loss arising from a single occurrence is limited to $1 million. The state’s aggregate liability per occurrence is $3 million. Punitive damages are not allowed.

Answer 165

GEORGIA DISTINCTION Georgia retains its municipal immunity to some extent. Counties and municipalities that purchase liability insurance for the ownership or operation of motor vehicles waive their immunity up to a specified statutory limit. Purchase of insurance coverage above the statutory limit further waives immunity to the extent of the insurance purchased. Immunity is also waived for ministerial duties (for example, repairing streets) but is retained for the exercise of discretionary acts and legislative or judicial functions. Municipal immunity is also retained for the torts of police officers and other officers while engaged in their official duties, subject to the limited waiver through purchase of insurance discussed above. Despite the general immunity for torts of police officers, a city may be liable for the nonfeasance of its police department where there is a special relationship between a person and the city that sets that person apart from the general public and engenders a special duty owed to that person. The existence of such a “special relationship” is determined by: (1) an explicit assurance by the city, through promises or actions, that it would act on behalf of the injured person; (2) knowledge on the part of the city that inaction could lead to harm; and (3) justifiable and detrimental reliance by the injured person on the city’s affirmative undertaking.

Answer 166

Public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose. Liability attaches, however, for ministerial acts.

Answer 167

GEORGIA DISTINCTION In Georgia, a state officer or employee who commits a tort while acting within the scope of their official duties or employment is not subject to liability for such tort. No such immunity attaches to conduct outside the scope of official duties or employment. Employees of municipalities may be liable for injuries and damages caused by the negligent performance of their ministerial functions, as well as for their intentional torts. Otherwise, such employees are not liable for the performance of their official functions. Georgia also makes officers or employees of fire departments immune from liability for acts done while fighting a fire, except for willful negligence

Answer 168

The majority of jurisdictions have eliminated charitable immunity. **GEORGIA DISTINCTION** Georgia still recognizes the concept of charitable immunity. However, the charity will be subject to liability for “administrative negligence” (for example, failure of the charity to exercise due care in selecting competent employees).

Answer 169

Plaintiff Has to Show: 1. A defamatory statement that specifically identifies the plaintiff 2. Published to a third party 3. Falsity of the defamatory language 4. Fault on the part of the defendant 5. Damage to the plaintiff’s reputation

Answer 170

A defamatory statement is one tending to adversely affect one’s reputation.

Answer 171

An opinion is only actionable if it implies that is is based on an underlying but undisclosed fact. in other words: A statement of opinion is actionable only if it appears to be based on specific facts, and an express allegation of those facts would be defamatory.

Answer 172

Name-calling is insufficient, not actionable. Not subject to true/false tests.

Answer 173

If the statement is not defamatory on its face, the plaintiff may plead additional facts as “inducement” to establish defamatory meaning by “innuendo.”

Answer 174

Any living person may be defamed. Defamation of a deceased person is not actionable. In a limited sense, a corporation, unincorporated association, or partnership may be defamed (for example, by remarks as to its financial condition, honesty, integrity, etc.).

Answer 175

The plaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff.

Answer 176

If the statement does not refer to the plaintiff on its face, extrinsic evidence may be offered to establish that the statement refers to the plaintiff. This is known as pleading “colloquium.”

Answer 177

* If the defamatory statement refers to all members of a small group, each member may establish that the statement specifically identifies them by alleging that they are a group member * If the statement only refers to some members of a small group, the plaintiff can recover if a reasonable person would view the statement as referring to the plaintiff. *If the statement is about a large group, no member can prove that the statement specifically identifies them

Answer 178

Publication means communication of the defamation to a third person who understands it. Such publication can be made either intentionally or negligently. It is the intent to publish, not the intent to defame, that is the requisite intent.

Answer 179

Each repetition is a separate publication. However, for magazines, newspapers, etc., most states have adopted a “single publication” rule under which all copies are treated as one publication.

Answer 180

If the defamatory statement is made only to the plaintiff, the general rule is that there is no publication and thus no defamation. A third party must hear and understand the defamation.

Answer 181

Primary publishers (for example, newspapers, TV stations, etc.) are liable to the same extent as the author or speaker. One who repeats a defamation is liable on the same general basis as the primary publisher (even if she states the source or makes it clear that she does not believe the defamation). One selling papers or playing audio files is a secondary publisher and is liable only if he knows or should know of the defamatory content. Under a federal statute, an Internet service provider is not treated as a publisher when a user of its service posts defamatory content.

Answer 182

Under traditional common law, the plaintiff did not have to prove that the statement was false. Rather the defendant was obliged to prove truth as a defense. Many states have altered that rule, however, and now require the plaintiff to prove falsity as part of the case-in-chief. Even in states that still follow the traditional rule, the plaintiff must prove falsity in any case where the plaintiff is constitutionally obligated to prove fault.

Answer 183

The status of the plaintiff (public figure or private person) traditionally determined the degree of fault based on constitutional limitations. A majority of states require a showing of fault on the part of the defendant (at least negligence) in all cases, regardless of the plaintiff’s status.

Answer 184

Defendant's awareness that the statement is inaccurate.

Answer 185

Plaintiff must show that statement was made with knowledge or reckless disregard that the statement was false. Actual malice must be proved in defamation cases brought by public officials and public figures. Rule: a public figure must show that the statement was made with malice, which means knowledge that the statement was false or reckless disregard.

Answer 186

Actual malice is: * Knowledge that the statement was false OR *Reckless disregard as to whether it was false This is a subjective test. The defendant’s spite or ill will is not enough to constitute malice. Deliberately altering a quotation may constitute malice if the alteration causes a material change in the meaning conveyed by the quotation.

Answer 187

Actual malice is: * Knowledge that the statement was false OR * Reckless disregard as to whether it was false This is a subjective test. The defendant’s spite or ill will is not enough to constitute malice. Deliberately altering a quotation may constitute malice if the alteration causes a material change in the meaning conveyed by the quotation.

Answer 188

The defendant failed to exercise reasonable care to verify the accuracy of the statement. When a private person is the plaintiff, only negligence regarding the falsity must be proved if the statement involves a matter of “public concern.” If the statement is not a matter of public concern, constitutional restrictions do not apply (but note that many states require a showing of negligence as a matter of state law). DAMAGES: If the defendant is negligent, only “actual injury” damages are recoverable. However, if actual malice is found, damages may be presumed, and punitive damages allowed.

Answer 189

Actual injury is not limited to economic damages. It may include damages for impairment to reputation and personal humiliation as long as the plaintiff presents evidence of such damages (in other words, no presumed damages).

Answer 190

To determine whether the defamatory statement involves a matter of public concern or private concern, the courts will look at the content, form, and context of the publication.

Answer 191

The type of damages the plaintiff must prove depends on the type of defamation (libel or slander) involved. Damages generally are presumed under the law of libel. In some slander cases, the plaintiff must prove that they suffered special damages—that is, they must have suffered some pecuniary loss in order to recover anything. But once the plaintiff has proved special damages, they may recover general damages as well.

Answer 192

Libel is a defamation that is embodied in permanent form. It is often a written or printed publication of defamatory language. Defamation in radio and television programs is treated by most courts today as libel. The plaintiff typically does not need to prove special damages to recover and general damages are presumed.

Answer 193

Statement is defamatory on its face

Answer 194

Statement is not clear on its own, plaintiff must provide additional facts to prove defamation

Answer 195

GEORGIA DISTINCTION Georgia follows a variation of the minority rule wherein libel damages will be presumed only for statements that are libel per se or for any statements published in newspapers or magazines. In these cases, special damages need not be proved. However, where the defamatory words do not constitute libel per se or fall under the statute, special damages, such as loss of employment, income, or profits, must be pleaded.

Answer 196

GEORGIA DISTINCTION Under Georgia’s “defamacast” statute, a plaintiff must prove actual injury for defamatory statements made in radio or television broadcasts (in other words, presumed damages are not permitted). In addition, if the broadcaster or its employees are being sued rather than the speaker of the defamatory statements, a plaintiff must establish negligence in failing to prevent the utterance of the statement.

Answer 197

Slander is spoken defamation. The plaintiff must prove special damages, unless the defamation falls within one of the slander per se categories.

Answer 198

Spoke words so clearly defamatory that ordinary person would understand injury, treated as libel, so damages are presumed. Any statement that: * Adversely reflect on the plaintiff’s business or profession * State that the plaintiff has committed a serious crime (this includes most common law crimes and is sometimes referred to as crimes involving “moral turpitude”) * Impute that the plaintiff has engaged in serious sexual misconduct * State that the plaintiff has a loathsome disease

Answer 199

Consent - complete defense. Affirmative defense. Truth - Complete defense. Affirmative defense. Privilege - Absolute or qualified.

Answer 200

Can Never Be Lost The defendant may be protected by an absolute privilege for the following: * Communications between spouses * Remarks made during judicial proceedings, by legislators during proceedings (even if not related to the proceedings), by executive officials, in “compelled” broadcasts

Answer 201

Can Be Lost Through Abuse A qualified privilege arises only when there is a public interest in encouraging candor. The defendant bears the burden of proving that a privilege exists. Whether a speaker has a qualified privilege will be determined on a case-by-case basis. The qualified privilege may be lost if the statement is not within the scope of the privilege or it is shown that the speaker acted with actual malice. Some possible examples include: * References and recommendations * Reports of public hearings or meetings * Statements made to those who are to take official action (for example, statements made to a parole board about a prisoner) * Statements made to defend one’s own actions, property, or reputation

Answer 202

Mitigating factors (for example, no malice, retraction, anger of the speaker provoked by the plaintiff) may be considered by the jury on the damages issue; they are not defenses to liability. GEORGIA DISTINCTION Georgia’s retraction statutes limit the plaintiff’s defamation recovery to actual damages if the defendant proves that: (1) the statement was made without malice; (2) within seven days after receipt of a written demand (three days if the statement was broadcast), a retraction was published (or broadcast) in as conspicuous a manner as the original statement; and (3) if requested by the plaintiff, the retraction was accompanied by an editorial repudiating the statement. Recovery is similarly limited if the defendant instead proves that the plaintiff never made a written request for a retraction. This applies to publications on an Internet bulletin board; hence, the plaintiff must request a retraction or be precluded from obtaining punitive damages.

Answer 203

The right of privacy is a personal right and does not extend to members of a family, does not survive the death of the plaintiff, and is not assignable. The right of privacy is not applicable to corporations. The invasion of the plaintiff’s interest in privacy must have been proximately caused by the defendant’s conduct. The plaintiff need not plead and prove special damages. Emotional distress and mental anguish are sufficient damages.

Answer 204

It is necessary to show unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage. Liability is generally limited to advertisements or promotions of products or services.

Answer 205

Mere economic benefit to the defendant (not in connection with promoting a product or service) by itself is not sufficient. So Sports Illustrated using an Athlete's photo after the broke a record would not be actionable

Answer 206

This claim forbids such acts as eavesdropping, spying, interception of phone calls or electronic communications, and other similar conduct. The act of prying or intruding must be highly offensive to a reasonable person. Furthermore, the thing into which there is an intrusion must be “private.” Must be a reasonable expectation of privacy. Photographs taken in public places are not actionable.

Answer 207

“False light” exists where one attributes to the plaintiff views they do not hold or actions they did not take. The false light must be something highly offensive to a reasonable person under the circumstances. For liability to attach, the defendant must circulate the statement to the public at large. Sharing the statement with only one or a few persons will not be sufficient to trigger liability. First Amendment Limitation If the matter is of public interest, actual malice on the defendant’s part must be proved.

Answer 208

Defamation -> Economic Damages False Light -> Emotional damages

Answer 209

This wrong involves public disclosure of private information about the plaintiff (for example, matters of public record are not sufficient). The public disclosure must be highly offensive to a reasonable person of ordinary sensibilities. Liability may attach even though the actual statement is true. First Amendment limitations probably apply if the matter is of legitimate public interest. Newsworthiness exception applies

Answer 210

Some defenses to the right of privacy actions are consent and the defamation privilege defenses. Truth generally is not a good defense, unless it is a false light claim; nor is inadvertence, good faith, or lack of malice.

Answer 211

To establish a prima facie case for intentional misrepresentation requires: *Misrepresentation of a material past or present fact *Scienter (when the defendant made the statement, they knew or believed it was false or that there was no basis for the statement) *Intent to induce the plaintiff to act or refrain from acting in reliance upon the misrepresentation *Causation (actual reliance) *Justifiable reliance *Damages (the plaintiff must suffer actual pecuniary loss) There are no defenses to intentional misrepresentation. No General Duty to Disclose There is no general duty to disclose a material fact, unless the defendant (1) stands in a fiduciary relationship to the plaintiff; (2) is selling real property and knows the plaintiff is unaware of, and cannot reasonably discover, material information about the transaction; or (3) has spoken and their utterance deceives the plaintiff. Physical concealment of a material fact may also constitute a misrepresentation. Third-Party Reliance If a third party relies on the defendant’s representation, the defendant will be liable if they could reasonably foresee that the third party would so rely. Reliance on Opinion Reliance generally is justifiable only on representations of fact (and the plaintiff is under no obligation to investigate the fact). Reliance on opinion is justifiable only if the defendant offering the opinion has a superior knowledge of the subject matter.

Answer 212

GEORGIA DISTINCTION In Georgia, a plaintiff cannot justifiably rely on a defendant’s statements without independently verifying them, unless the defendant stands in a fiduciary relationship to the plaintiff.

Answer 213

A prima facie case for negligent misrepresentation requires: *Misrepresentation by the defendant in a business or professional capacity *Breach of duty toward a particular plaintiff *Causation *Justifiable reliance *Damages Generally, this action is confined to misrepresentations made in a commercial setting, and liability will attach only if reliance by the particular plaintiff could be contemplated (for example, for negligent misrepresentation, foreseeability that the statement will be communicated to a third party does not make the defendant liable to the third party).

Answer 214

To establish a prima facie case for interference with business relations, the following elements must be proved: *Existence of a valid contractual relationship between the plaintiff and a third party or valid business expectancy of the plaintiff *The defendant’s knowledge of the relationship or expectancy *Intentional interference by the defendant inducing a breach or termination of the relationship or expectancy *Damages

Answer 215

GEORGIA DISTINCTION To establish a prima facie case for tortious interference with business relations, the plaintiff must prove that: (1) the defendant acted improperly and without privilege; (2) the defendant, acting purposely and with malice with the intent to injure, induced a third party not to enter into or continue a business relationship with the plaintiff; and (3) such action by the defendant caused the plaintiff to suffer some financial injury. “Malice” connotes a knowledge of the plaintiff’s rights and the intent to interfere with those rights. The interference must be without legal justification or excuse. Personal ill will is not essential.

Answer 216

Privileges The defendant’s conduct may be privileged if it is a proper attempt to obtain business for itself or protect its interests. A privilege is more likely to be found if the defendant: (1) interfered only with the plaintiff’s prospective business rather than with existing contracts; (2) used commercially acceptable means of persuasion rather than unlawful or threatening tactics; (3) is a competitor of the plaintiff seeking the same prospective customers; or (4) has a financial interest in or responsibility for the third party, or is responding to the third party’s request for business advice.

Answer 217

Plaintiff cannot recover if more than 50% at fault

Answer 218

Plaintiff cannot contribute if even 1% at fault

Torts Flashcards

(242 cards)