1
Q
What are the three core elements of any intentional tort?
A
- Voluntary act (or omission where duty exists)
- Intent
- Causation
These elements are essential to establish liability in intentional tort cases.
2
Q
What are the two ways to satisfy intent in intentional torts?
A
- Purpose to cause the consequence
- Knowledge that the consequence is substantially certain to result
Children and mentally incompetent persons can be liable if they possess this intent.
3
Q
Does transferred intent apply across intentional torts?
A
Yes
Intent to commit one intentional tort satisfies intent for another, whether against the same or different victim, except for IIED when intending a different tort against a different victim.
4
Q
What are the elements of battery?
A
- Defendant causes harmful or offensive contact with plaintiff’s person (or anything connected to it)
- Defendant intends to cause the contact or apprehension of contact
These elements must be proven for a successful battery claim.
5
Q
Is actual injury or consciousness required for battery?
A
No
Harmful contact equates to injury, pain, or illness; offensive contact is based on ordinary sensibilities.
6
Q
What is the eggshell plaintiff rule in battery?
A
Defendant liable for all harm flowing from the battery, even if much worse than expected
This rule emphasizes that defendants are responsible for the full extent of harm caused.
7
Q
What damages are available in battery?
A
- Nominal damages (no actual harm required)
- Compensatory for physical harm
- Punitive if outrageous or malicious
Different types of damages can be awarded based on the circumstances of the battery.
8
Q
What is the consent defense to battery?
A
No battery if plaintiff gave express or implied consent
Examples include consent in sports or medical procedures within the scope of consent.
9
Q
What are the elements of assault?
A
- Act causing reasonable apprehension of imminent harmful/offensive contact
- Defendant intends to cause apprehension or the contact itself
These elements must be established for an assault claim.
10
Q
Is actual contact required for assault?
A
No
Only apprehension is necessary; the plaintiff must be aware of the act.
11
Q
What makes apprehension sufficient for assault?
A
Must be reasonable and of imminent harm
Threats of future harm are insufficient; mere words generally do not constitute assault.
12
Q
What damages are available in assault?
A
- Nominal damages (no actual harm required)
- Compensatory for resulting physical harm
- Punitive in appropriate cases
Similar to battery, different damages can be awarded based on the case specifics.
13
Q
What are the elements of IIED?
A
(1) Defendant intentionally or recklessly engages in (2) extreme and outrageous conduct (3) that causes (4) plaintiff severe emotional distress.
IIED stands for Intentional Infliction of Emotional Distress.
14
Q
What is ‘extreme and outrageous’ conduct?
A
Conduct exceeding possible limits of human decency — entirely intolerable in civilized society.
More likely if defendant in position of authority/influence over plaintiff, or plaintiff in hypersensitive group (e.g., young children, elderly).
15
Q
What intent/recklessness suffices for IIED?
A
(1) Purpose to cause severe emotional distress, or (2) recklessness (disregard of substantial risk of causing severe distress).
Recklessness involves a conscious disregard for a known risk.
16
Q
Can third parties recover for IIED?
A
Yes in limited cases: Immediate family member who is present and contemporaneously perceives the conduct can recover (even without bodily injury).
For non-family bystanders, transferred intent generally does not apply if defendant intended different tort/different victim.
17
Q
What additional limits apply to public figures/officials in IIED claims?
A
Must prove the conduct involved a false statement of fact made with actual malice (knowledge of falsity or reckless disregard).
This is a higher standard due to the First Amendment protections.
18
Q
What must plaintiff prove for damages in IIED?
A
Severe emotional distress beyond what a reasonable person would endure (physical injury not required, but often used as evidence).
If plaintiff is hypersensitive, defendant liable only if they knew of the hypersensitivity.
19
Q
How does IIED differ from negligent infliction of emotional distress (NIED)?
A
IIED requires extreme/outrageous conduct + intent/recklessness; NIED involves negligence (often zone of danger or special relationship).
NIED typically does not require the same level of conduct as IIED.
20
Q
What are the elements of false imprisonment?
A
(1) Defendant intends to confine/restrain plaintiff within fixed boundaries, (2) actions (or omissions) directly/indirectly result in confinement, and (3) plaintiff is conscious of the confinement or harmed by it.
False imprisonment can occur without physical barriers.
21
Q
What constitutes confinement?
A
Bounded area (can be large; need not be stationary, e.g., moving vehicle if cannot exit).
Methods include physical barriers/force, threats, invalid legal authority, duress, or omission (refusal to provide safe escape).
22
Q
What is the merchant’s privilege (shopkeeper’s privilege)?
A
Merchant may detain suspected shoplifter for reasonable time and in reasonable manner (investigation/detention).
This privilege allows merchants to protect their property while balancing the rights of individuals.
23
Q
Does transferred intent apply to false imprisonment?
A
Yes — intent to confine one person transfers to another.
This means if a defendant intends to confine one person but accidentally confines another, the intent still applies.
24
Q
What damages are available in false imprisonment?
A
Nominal damages; compensatory for actual harm (physical/emotional).
Nominal damages can be awarded even if no actual harm is proven.
25
Is time of confinement or area size **material**?
No — immaterial as long as there is confinement within bounded area.
## Footnote
The key factor is whether the plaintiff was confined, not the duration or size.
26
What are the two types of **consent** in intentional torts?
* Actual (express) consent
* Presumed (implied) consent
## Footnote
Actual consent is when the plaintiff manifests willingness by words or actions; presumed consent is when the plaintiff's silence or continued participation is reasonably construed as consent.
27
When is **consent invalid** in intentional torts?
* Obtained by fraud
* Mistake
* Lack of capacity
## Footnote
Consent is invalid if it is obtained by fraud (essential matter), mistake (valid unless defendant caused it), or lack of capacity (e.g., youth, incompetency, intoxication).
28
What is the rule for **self-defense** in intentional torts?
Defendant may use reasonable, proportionate force to defend against offensive contact/bodily harm
## Footnote
No duty to retreat in most jurisdictions; deadly force only if reasonably believed necessary.
29
Can **self-defense** be claimed against initial aggressors?
No
## Footnote
Initial aggressor not permitted to claim self-defense unless other party responded with deadly force.
30
Are defendants liable for injuries to **bystanders** in self-defense?
No
## Footnote
If injury is accidental and actor not negligent toward bystander.
31
What is the rule for **defense of others**?
Defendant may use reasonable force to defend others
## Footnote
If that person would be entitled to self-defense.
32
What force can be used in **defense of property**?
* Reasonable force to prevent tortious harm
* Deadly force never allowed
## Footnote
For recapture of chattels: reasonable force only after first requesting return unless futile.
33
What are the rules for **force to regain possession of land**?
* Common law: reasonable force permitted
* Modern rule: force no longer permitted
## Footnote
Use legal process instead.
34
What is **parental discipline privilege**?
Parents may use reasonable force if necessary to discipline children
## Footnote
This privilege allows parents to maintain authority while ensuring safety.
35
What is the **privilege of arrest** for private citizens?
* Reasonable force to arrest for felony if felony actually committed
* Reasonable grounds to suspect person committed it
## Footnote
Mistake as to identity is not a defense; for misdemeanors, no privilege unless breach of peace.
36
What is the **police privilege of arrest**?
Reasonable belief felony committed and person arrested committed it
## Footnote
Not subject to tort liability for mistake as to whether felony committed.
37
What is **necessity** as a defense to trespass?
* Available to prevent injury or severe harm
* Private necessity: liable for actual damages
* Public necessity: no liability for damages
## Footnote
Property damage not compensable in public necessity cases.
38
What are the elements of **trespass to chattels**?
* Intentional interference with plaintiff's right to possess personal property
* Intent only to do interfering act
## Footnote
Mistake is not a defense.
39
What damages are available in **trespass to chattels**?
* Actual damages
* Nominal from loss of use
* Cost of repair
## Footnote
For use/intermeddling: only actual damages.
40
What are the elements of **conversion**?
* Intentional act depriving plaintiff of possession/use of chattel
* Intent only to commit the act
## Footnote
Mistake of law/fact is no defense.
41
What damages are available in **conversion**?
Plaintiff recovers full value of chattel at time of conversion
## Footnote
This reflects the seriousness of the deprivation.
42
How do courts distinguish **trespass to chattels** from **conversion**?
* Duration/extent of interference
* Defendant's intent to assert inconsistent right
* Good faith
* Inconvenience to plaintiff
* Extent of harm
## Footnote
More extreme interference is more likely to be classified as conversion.
43
What are the elements of **trespass to land**?
Defendant intentionally causes physical invasion of another's land
## Footnote
Intent is only to enter land or cause invasion; wrongful trespass not required.
44
What constitutes **physical invasion** in trespass to land?
Causing objects to invade
## Footnote
Not just personal entry.
45
Who can sue for **trespass to land**?
Anyone in possession
## Footnote
Not just the owner.
46
What damages are required for **trespass to land**?
None
## Footnote
No proof of actual damages needed.
47
How does **trespass to land** differ from **nuisance**?
Trespass always involves actual physical invasion/intrusion
## Footnote
Nuisance may or may not involve such invasion.
48
What is **private nuisance**?
Activity that substantially and unreasonably interferes with another's use/enjoyment of land
## Footnote
Examples include loud noises and foul odors.
49
What is not a **private nuisance**?
Blocking sunlight/views
## Footnote
Exception: spite fence/wall with no other purpose.
50
What defenses apply to **private nuisance**?
* Compliance with state/local regulations
* 'Coming to the nuisance'
## Footnote
Compliance is evidence of reasonableness, not a complete defense.
51
What is **public nuisance**?
Unreasonable interference with right common to public as a whole
## Footnote
Examples include blocking public highways and pollution.
52
What are the four elements of **negligence**?
* Duty
* Breach
* Causation
* Damages
## Footnote
These elements must be established for a successful negligence claim.
53
What is **duty** in negligence?
Legal obligation to act a certain way
## Footnote
Generally owed to foreseeable persons injured by conduct.
54
Is there a general duty to act **affirmatively**?
No
## Footnote
No duty to act, even if failure is unreasonable, but exceptions exist.
55
What is the **standard of care** in negligence?
Reasonable care in most cases
## Footnote
Exceptional standards like utmost care apply for common carriers.
56
What are the exceptions creating an **affirmative duty to act**?
* Assumption of duty
* Placing another in danger
* By authority
* Special relationship
## Footnote
Not a Superman duty — only reasonable care to aid/prevent foreseeable injuries.
57
Does **foreseeability** of harm create a duty?
No
## Footnote
Foreseeability alone does not create duty; most courts emphasize it when evaluating existence of duty.
58
What is the scope of duty to **unforeseeable plaintiffs**?
No liability to unforeseeable plaintiffs
## Footnote
Majority view: duty only to class of foreseeable persons.
59
What categories of plaintiffs are **foreseeable**?
* Rescuers
* Crime victims
## Footnote
Rescuers are considered foreseeable victims of original negligent conduct.
60
What is the general **standard of care** in negligence?
Reasonable prudent person under the circumstances — an objective standard.
## Footnote
This standard is used to evaluate the actions of a defendant in negligence cases.
61
How does the **standard of care** apply to defendants with **mental or emotional conditions**?
Objective standard — same as everyone else; specific mental/emotional conditions do not modify it.
## Footnote
Defendants are held to the same standard regardless of their mental state.
62
How does the **standard of care** apply to defendants with **physical characteristics**?
Modified standard — defendant compared to a reasonably prudent person with like physical characteristics (e.g., blind person evaluated against reasonably prudent blind person).
## Footnote
This acknowledges that physical characteristics can affect behavior.
63
What is the **standard of care** for **intoxication**?
Objective standard — held to same as sober people, unless the intoxication was involuntary.
## Footnote
Intoxication does not excuse negligent behavior unless it was not voluntary.
64
What is the **standard of care** for **children**?
Modified standard — reasonable child of similar age, intelligence, and experience. Exception: Children engaged in high-risk adult activities (e.g., driving a car) held to objective adult standard.
## Footnote
This recognizes the developmental differences in children.
65
What is the traditional **standard of care** for **common carriers** and **innkeepers**?
Utmost care — highest duty consistent with practical operation of the business.
## Footnote
This reflects the special responsibility these entities have towards their customers.
66
What is the modern trend for **common carriers** and **innkeepers**?
Liable only for ordinary negligence (not higher standard). Majority continue higher standard for common carriers; now hold innkeepers to ordinary negligence standard.
## Footnote
This shift reflects changes in legal interpretations over time.
67
What was the traditional liability for **automobile drivers** to **guests and friends**?
Liable only for gross, negligent, wanton, or willful misconduct (often under 'guest statutes').
## Footnote
This limited liability was designed to protect drivers from excessive claims.
68
What is the modern rule for **automobile drivers' liability** to **guests and friends**?
Most jurisdictions apply general duty of reasonable care.
## Footnote
This change reflects a more equitable approach to liability.
69
What is the **standard of care** in **bailor-bailee situations**?
Bailee (temporary possession of bailor's property). Common law: Bailor must warn gratuitous bailee of known dangerous conditions. If bailee receives sole benefit, lesser duty; if bailor receives benefit, higher duty (even slight negligence can result in liability).
## Footnote
This establishes the responsibilities of both parties in a bailment.
70
What is the **standard of care** in **emergency situations**?
That of a reasonable person under the same circumstances.
## Footnote
This standard accounts for the urgency and unpredictability of emergencies.
71
What are the two approaches to **possessors of land's duty**?
(1) Traditional tripartite: Standard depends on entrant's status (invitee, licensee, trespasser). (2) Modern (California): Reasonable care under all circumstances for all entrants (one-half jurisdictions follow each).
## Footnote
These approaches reflect differing philosophies on landowner liability.
72
Who is an **invitee** under the traditional approach to possessors of land?
Someone on land for material or economic purpose, or public invitee (land held open to public, e.g., state fair).
## Footnote
Invitees are owed the highest duty of care.
73
What duty does a possessor owe to **invitees** (business visitors)?
Reasonable care to inspect property, discover unreasonably dangerous conditions, and take reasonable steps to protect invitee. Non-delegable — cannot avoid by assigning to independent contractor.
## Footnote
This duty is crucial for ensuring safety in business environments.
74
Who is a **licensee** under the traditional approach?
Enters land with express or implied permission (e.g., social guests, allowing neighborhood children to walk across property to school).
## Footnote
Licensees have a lower standard of care owed to them compared to invitees.
75
What duty does a possessor owe to **licensees**?
Make property reasonably safe or warn of hidden dangers. No duty to inspect for dangers. Must exercise reasonable care in conducting activities on the land.
## Footnote
This reflects the limited expectation of safety for licensees.
76
Who is a **trespasser** under the traditional approach?
On land without consent or privilege.
## Footnote
Trespassers have the least protection under the law.
77
What duty does a possessor owe to **undiscovered trespassers**?
No duty. Exception: Refrain from willful, wanton, intentional, or reckless misconduct (e.g., use of spring gun or trap results in liability).
## Footnote
This highlights the limited responsibility for unknown trespassers.
78
What duty does a possessor owe to **discovered or anticipated trespassers**?
Duty to warn or protect from hidden dangers.
## Footnote
This duty acknowledges the awareness of the trespasser's presence.
79
What is the '**attractive nuisance**' doctrine for child trespassers?
Possessor liable if: (a) Artificial condition in place where owner knows or has reason to know children likely to trespass; (b) Knows or reason to know condition poses unreasonable risk of death or serious bodily harm; (c) Children, due to age, do not discover or cannot appreciate danger; (d) Utility of condition slight compared to risk of injury; (e) Fails to exercise reasonable care.
## Footnote
This doctrine protects children from dangers they cannot understand.
80
What is the '**flagrant trespassers**' rule under the Third Restatement §52?
Reasonable care under circumstances, except for 'flagrant trespassers' (only duty to not act in intentional, willful, or wanton manner to cause physical harm). Not widely adopted.
## Footnote
This rule reflects a more lenient approach to certain types of trespassers.
81
Under the **California (minority)** approach to possessors of land, what is the duty?
Reasonable standard of care under all circumstances for all entrants; circumstances include reasons the person is on the property (e.g., trespassing fact may be considered by jury in deciding if possessor exercised reasonable care).
## Footnote
This approach emphasizes a more uniform standard of care.
82
What duties does a **landlord** owe to **tenants**?
Maintain safe common areas; warn of hidden dangers (especially for premises leased for public use); repair hazardous conditions. Note: Tenant continues to be liable for injuries arising from conditions within tenant's control.
## Footnote
This establishes the responsibilities landlords have towards their tenants.
83
For **off-premises victims**, what is a land possessor's liability?
Generally no liability for injuries from natural conditions. Must prevent unreasonable risk of harm from artificial conditions to persons not on the premises.
## Footnote
This limits liability for conditions outside the property.
84
What is **breach** in negligence?
Violation of the standard of care.
## Footnote
Breach is a key element in establishing negligence.
85
What is the traditional approach to determining **breach**?
Reasonable person standard — common-sense approach of what reasonably prudent person would do under circumstances.
## Footnote
This standard is widely accepted in negligence cases.
86
What is the **cost-benefit analysis** for breach?
Hand Formula: B < PL (Burden of precaution < Probability of harm x severity of Loss). Note: Two ways to reach same result as reasonable person standard.
## Footnote
This formula helps assess whether a breach occurred.
87
What role does **custom** play in breach for general situations?
Evidence of custom is admissible but not dispositive (jury determines if negligent).
## Footnote
Custom can inform but does not dictate the outcome.
88
What role does **custom** play in breach for **professionals** (e.g., lawyers, doctors, accountants, electricians)?
Custom is admissible and dispositive (compliance = no breach; deviation = breach).
## Footnote
This reflects the higher standards expected of professionals.
89
What is the traditional rule for **physicians' locality** in standard of care?
Physician in the 'same or similar' locality.
## Footnote
This rule acknowledges regional differences in medical practice.
90
What is the modern trend for **physicians' standard of care**?
National standard.
## Footnote
This trend reflects the increasing standardization of medical practices.
91
What is **informed consent** for physicians?
Patients must give informed consent; doctors must explain risks of medical procedures. Exceptions: Risks commonly known; patient unconscious; patient waives/refuses information; patient incompetent; disclosure would harm patient (e.g., cause heart attack).
## Footnote
Informed consent is crucial for patient autonomy.
92
When does violation of a statute constitute **negligence per se**?
(1) Criminal/regulatory statute imposes particular duty for protection/benefit of others; (2) Defendant violated the statute; (3) Plaintiff in class of people intended to be protected; (4) Accident must be type of harm statute intended to protect against; (5) Harm caused by violation of statute. Negligence per se applies (violation = breach).
## Footnote
This doctrine simplifies proving negligence.
93
How is a plaintiff's violation of a statute treated?
Counts as comparative or contributory negligence.
## Footnote
This reflects the principle that all parties can share liability.
94
Does compliance with a statute mean no **negligence**?
Generally does not constitute reasonable care; does not mean the person was NOT negligent (e.g., complying with speed limit but driving carelessly may still be negligent).
## Footnote
Compliance is not an absolute defense.
95
What **defenses or excuses** apply to **negligence per se**?
(1) Complying would be more dangerous than violating; (2) Compliance impossible or emergency justified violation; (3) Incapacity (physical disability); (4) Exercised reasonable care in trying to comply; (5) Vagueness of statute.
## Footnote
These defenses provide avenues for defendants to avoid liability.
96
What is the general principle of **res ipsa loquitur**?
In some cases, circumstantial evidence of negligence is sufficient evidence of negligence
## Footnote
This principle allows for the inference of negligence based on the circumstances surrounding an accident.
97
What are the traditional elements of **res ipsa loquitur**?
* Accident of a kind that does not ordinarily occur in the absence of negligence
* Caused by an agent/instrumentality within the exclusive control of the defendant
* Not due to any action on the part of the plaintiff
## Footnote
These elements help establish a prima facie case of negligence.
98
What is the **modern trend** (Third Restatement) for **res ipsa loquitur**?
* Accident is a type that ordinarily happens as a result of negligence of a class of actors
* Defendant is a member of that class
## Footnote
This trend applies the elements more generously and emphasizes circumstantial evidence.
99
What procedural effect does **res ipsa loquitur** have in most jurisdictions?
Creates a permissible inference of negligence that allows the case to go to the jury
## Footnote
The jury may infer negligence but is not required to do so.
100
What happens if the plaintiff lacks direct evidence of negligence under **res ipsa**?
Defendant may move for directed verdict
## Footnote
Res ipsa loquitur allows circumstantial evidence to establish a prima facie case of negligence.
101
In medical malpractice cases, how is **res ipsa loquitur** applied?
Small number of jurisdictions shift the burden by holding all defendants jointly and severally liable unless they can exonerate themselves
## Footnote
This approach helps protect patients in complex cases.
102
What are the two components of **causation** in negligence?
* Cause in fact (actual cause)
* Proximate cause (legal cause)
## Footnote
Understanding these components is crucial for establishing liability.
103
What is the **'but-for' test** for cause in fact?
Plaintiff must show the injury would not have occurred 'but for' the defendant's negligence
## Footnote
This is the most common way to determine actual causation.
104
When is the **'but-for' test** problematic?
* Multiple tortfeasors
* Multiple possible causes
* Loss of chance
## Footnote
These situations complicate the determination of actual causation.
105
What is the **'substantial factor' test** for cause in fact?
Used when there are conceptual problems with causation due to multiple causes
## Footnote
The defendant's tortious conduct must be a 'substantial factor' in causing the harm.
106
In cases with **multiple tortfeasors**, how is causation handled?
All defendants jointly and severally liable if acting collectively or in concert
## Footnote
This ensures that plaintiffs can recover damages even if causation is unclear.
107
What is **alternative causation**?
Plaintiff's harm caused by only one of a few defendants, and each was negligent
## Footnote
Courts shift the burden of proof to defendants in these cases.
108
What is **loss of chance of recovery** in medical misdiagnosis?
Physician negligently reduces plaintiff's chance of survival; plaintiff can recover for the lost chance of recovery
## Footnote
Plaintiffs cannot recover full damages but can recover the portion representing their lost chance.
109
What is **proximate cause** (legal cause)?
Person is liable for the kinds of risks that made her conduct negligent
## Footnote
The issue is whether the injury that occurred was within the scope of the defendant's breach.
110
What is the **foreseeability of harm test** for proximate cause?
Majority rule: No liability for an unforeseeable type of harm
## Footnote
This test helps determine the remoteness of a consequence of negligence.
111
How do courts handle **intervening versus superseding causes**?
Intervening causes do not break the chain of causation; superseding causes do
## Footnote
The real issue is whether the injury is within the scope of what made the conduct negligent.
112
What is the extent of **damages rule** (eggshell plaintiff)?
Defendant liable for the full extent of plaintiff's injuries, even if unusual or unforeseeable
## Footnote
This rule emphasizes that defendants are responsible for all consequences of their actions.
113
What are **compensatory damages** in negligence?
* Purpose: Make plaintiff whole again
* Costs of physical injuries
* Emotional damages (i.e., "parasitic damages")
## Footnote
Compensatory damages aim to restore the injured party to their original position before the injury.
114
What is the **mitigation of damages rule**?
Plaintiff must take reasonable steps to mitigate damages
## Footnote
This rule can be considered a duty but is more of a limitation on recovery.
115
What categories of **compensatory damages** apply to personal injury?
* Medical expenses (past and future)
* Lost income and reduced earning capacity (past and future)
* Pain and suffering (past and future)
## Footnote
These categories encompass various aspects of damages that a plaintiff may claim.
116
What are the rules for **property damage** in negligence?
* Difference in market value before and after injury
* Cost of repair or replacement value as an alternative measure
## Footnote
These rules determine how damages are assessed in property-related negligence cases.
117
What is the **traditional collateral-source rule**?
Benefits or payments to plaintiff from outside sources not credited against liability of any tortfeasor
## Footnote
For example, if a plaintiff's health care costs are covered by insurance, the defendant cannot claim damages reduced by that amount.
118
What is the **modern trend** for the collateral-source rule?
Most states have passed statutes that eliminate or substantially modify to avoid double recovery
## Footnote
This trend aims to prevent plaintiffs from receiving compensation from multiple sources for the same damages.
119
What is **pure economic loss** in negligence?
Plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover in negligence
## Footnote
This principle limits recovery to cases involving physical harm.
120
What damages are available for **loss of consortium**?
Allows recovery for loss arising from injury to a family member
## Footnote
Family members, typically spouses, can claim loss of consortium or companionship.
121
What is a **survival action**?
Brought by representative of decedent's estate on behalf of decedent for claims decedent would have had at time of death
## Footnote
Claims include damages from personal injury or property damage.
122
What is a **wrongful death action**?
Brought by decedent's spouse or representative to recover losses suffered as a result of decedent's death
## Footnote
Can include loss of economic support and loss of consortium.
123
What are **wrongful life** claims?
Claim by a child for defendant's negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect
## Footnote
Few states permit "wrongful life" action, limiting recovery to special damages attributable to the disability.
124
What are **wrongful birth** claims?
Claim by parents for defendant's negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect
## Footnote
Many states permit recovery for medical expenses of labor and additional expenses for caring for a child with a disability.
125
What are **punitive damages**?
* Purpose: Punish and deter future conduct
* Available if defendant acted willfully, wantonly, recklessly, or with malice
## Footnote
Availability may be limited by statute; U.S. Supreme Court mandates punitive damages must be within single-digit ratio of compensatory damages.
126
What is the common law rule for **NIED** (pure emotional harm)?
Plaintiffs could not recover for NIED absent a physical injury
## Footnote
This rule has evolved in modern law to allow recovery under specific circumstances.
127
Under modern law, when can plaintiffs recover for **NIED**?
In specific circumstances: * Zone of danger
* Bystander recovery
* Special relationship
## Footnote
These conditions allow for emotional distress claims without physical injury.
128
What is the **zone of danger rule** for NIED?
Plaintiff can recover if: * Within the "zone of danger" of the threatened physical impact
* Threat of physical impact caused emotional distress
## Footnote
This rule is analogous to assault, involving apprehension of contact.
129
What are the requirements for **bystander recovery** in NIED?
* Closely related to the person injured by defendant
* Present at the scene of the injury
* Personally observed the injury
## Footnote
Proximity requirements include relational, geographic, and temporal aspects.
130
What is the **special relationship rule** for NIED?
Negligent mishandling of a corpse; negligent medical information (e.g., negligent misdiagnosis)
## Footnote
This rule recognizes specific contexts where emotional distress claims are valid.
131
Do most jurisdictions require **physical manifestation** for NIED?
Yes — require some physical manifestation of distress (such as nausea, insomnia, or miscarriage)
## Footnote
This requirement serves as a threshold for emotional distress claims.
132
What is the **exclusivity rule** in products liability?
Many courts ignore the exclusivity requirement when clear that defect originated upstream of the package's wrapping
## Footnote
This rule addresses liability in cases where the defect is evident.
133
How do **comparative-fault jurisdictions** apply to products liability?
Many loosely apply the third element (i.e., harm not caused by action by the plaintiff)
## Footnote
This approach allows for shared responsibility in liability cases.
134
What is **vicarious liability**?
One person held liable for another's negligence (e.g., employer for employee's torts)
## Footnote
Responsible party still liable for own negligence; employer also liable (joint and several liability).
135
When is an **employer vicariously liable** for an employee's negligence?
If occurred within scope of employment
## Footnote
Distinction: Direct negligence (employer liable for own negligence); vicarious liability (employer liable for employee's actions).
136
What is **respondeat superior**?
Employer held vicariously liable for negligence of employee if occurred within scope of employment
## Footnote
This doctrine establishes employer liability for employee actions during work-related tasks.
137
When is an employee's conduct within the **scope of employment** for vicarious liability?
* Direct negligence: Employer liable for own negligence
* Vicarious liability: Employer liable for employee's conduct
* Intentional torts: Generally not liable unless within scope
* Detour: Liable
* Frolic: Not liable
## Footnote
Distinctions help determine employer liability based on employee actions.
138
Are **employers liable** for torts of independent contractors?
Generally not liable
## Footnote
Exception: If employer retains right of control over work, courts treat as employee.
139
When is **vicarious liability** applied to independent contractors' torts?
* Non-delegable duties: Inherently dangerous activities
* Duties to public or specific plaintiffs
* Apparent agency: IC treated as employee if injured person accepted IC's services based on reasonable belief
## Footnote
These conditions establish employer liability for independent contractor actions.
140
Can **business partners** be liable for other partners' torts?
Yes, if committed within scope of business's purpose
## Footnote
This liability ensures accountability among partners for actions taken in business context.
141
When are **automobile owners vicariously liable**?
* Negligent entrustment: Owner directly liable for negligently entrusting vehicle
* Family-purpose doctrine: Owner vicariously liable for tortious acts of family member driving with permission
## Footnote
These doctrines hold vehicle owners accountable for actions of those they allow to drive.
142
Are **parents vicariously liable** for children's torts?
General rule: Parents generally not vicariously liable
## Footnote
Parents liable for own negligence with respect to child's conduct (e.g., negligent supervision).
143
What is **dram shop liability**?
Commercial establishments liable for injuries when people drink too much alcohol and injure third parties or minors
## Footnote
In many states, limited to serving intoxicated or visibly intoxicated individuals.
144
What is **social host liability**?
Liability for serving alcohol to guest who injures another
## Footnote
Statutes vary, often limit to serving alcohol to minors. Claim for vicarious liability does not relieve actual tortfeasor from direct liability.
145
What is the traditional **immunity** for federal and state governments?
Immune from tort liability
## Footnote
Immunity waived by statutes, allowing for certain legal actions against government entities.
146
What does the **Federal Tort Claims Act** do?
Expressly waives immunity, allows federal government to be sued for certain torts
## Footnote
Exceptions include discretionary functions and certain enumerated torts.
147
What is the immunity status for **state governments** and municipalities?
Most states waived immunity to some extent
## Footnote
Governmental functions (e.g., police) - immunity applies; proprietary functions - immunity waived.
148
What immunity applies to **government officials**?
* Discretionary functions: Immunity applies
* Ministerial functions: No immunity
## Footnote
Westfall Act precludes personal liability on part of federal employee under state tort law.
149
What are **intra-family immunities**?
Largely eliminated; family member can sue for negligently injuring another
## Footnote
Core parenting activities - immunity still applies.
150
What is **charitable immunity**?
Eliminated in most states, though some still limit recovery
## Footnote
This doctrine historically protected charities from liability.
151
What is **joint and several liability**?
Two or more defendants each liable for single indivisible harm to plaintiff
## Footnote
Each subject to liability for entire harm; plaintiff can recover all damages from any negligent party.
152
When does **joint and several liability** apply?
* Two or more tortfeasors
* Tortfeasors acting in concert
* Alternative liability
* Res ipsa loquitur against multiple defendants
* Vicarious liability
## Footnote
These conditions establish when multiple parties can be held liable for the same harm.
153
Can multiple defendants be **jointly and severally liable** with apportioned fault?
Yes, even if jury apportions different percentage of fault
## Footnote
Some jurisdictions limit if defendant's fault less than 10% - liable only for share.
154
What is **contribution among joint tortfeasors**?
Defendant who paid more than share can seek contribution from others
## Footnote
Example: One pays full, has right of contribution against other for paying more than share.
155
What is **indemnification**?
Party held vicariously liable may seek indemnification from directly responsible party
## Footnote
This process allows for recovery of costs from the party primarily at fault.
156
What is the traditional rule for **contributory negligence**?
If plaintiff negligent in some way, completely precludes recovery. Old common-law rule, still in handful of states.
## Footnote
This rule emphasizes that any negligence by the plaintiff can prevent them from recovering damages.
157
What is the **'last clear chance' doctrine**?
Allows negligent plaintiff to recover if shows defendant had last clear chance to avoid injuring plaintiff but failed.
## Footnote
This doctrine provides an exception to the contributory negligence rule.
158
What is **imputed contributory negligence**?
Generally disfavored. Does not apply to:
* Child whose parent's negligence contributing cause of harm
* Married plaintiff whose spouse contributory negligent
## Footnote
This concept addresses how negligence can be attributed to another party.
159
What is **comparative fault**?
Plaintiff's negligence does not completely bar recovery; limits plaintiff's ability to recover. Most jurisdictions adopted comparative fault approach.
## Footnote
This approach allows for a more equitable distribution of damages based on the degree of fault.
160
What is **pure comparative negligence**?
Plaintiff's recovery reduced by plaintiff's percentage of fault.
## Footnote
This means that if a plaintiff is found to be partially at fault, their compensation is adjusted accordingly.
161
What is **modified comparative negligence**?
If plaintiff more at fault than defendant, plaintiff cannot recover. Some jurisdictions: If plaintiff and defendant equally at fault, recovery barred.
## Footnote
This variation sets a threshold for recovery based on the plaintiff's level of fault.
162
How does **comparative negligence** apply to multiple defendants?
If more than one defendant, plaintiff's negligence compared with total negligence of all defendants combined.
## Footnote
This ensures that the plaintiff's recovery is adjusted based on the collective fault of all parties involved.
163
What is the relationship to other defenses in **comparative negligence**?
Most comparative negligence jurisdictions no longer use last clear chance doctrine. Comparative fault not a defense to intentional torts. If defendant's conduct rose to willful, wanton, or reckless, plaintiff's recovery may still be reduced by portion of own negligence.
## Footnote
This highlights the evolving nature of negligence defenses in law.
164
What is **assumption of the risk**?
Party knowingly and willingly embraces risk for some purpose. Analogous to consent in intentional torts. Can be express or implied.
## Footnote
This principle can limit or bar recovery based on the plaintiff's acceptance of risk.
165
What is **express assumption of risk**?
Typically writing (exculpatory clause in contract). Parties can disclaim liability for negligence. Courts ask:
* Waiver clear?
* Enforceable?
* Not enforced if: Disclaims reckless/wanton misconduct; gross disparity of bargaining power; offers great public importance services (e.g., medical); subject to contract defenses (fraud, duress); against public policy.
## Footnote
This type of assumption of risk is often formalized in contracts.
166
What is **implied assumption of risk**?
Participants/spectators athletic events: Cannot recover because knew and accepted risks. Unreasonably proceeding face known specific risk: Plaintiff voluntarily encounters known risk. In contributory negligence/minority comparative-fault: Total bar. Most comparative fault: Merged into comparative-fault analysis, reduces recovery. Issue: Whether plaintiff unreasonably encountered risk.
## Footnote
This concept applies to situations where the risk is inherent to the activity.
167
What is **strict liability in general**?
Defendants liable no matter how careful. Three categories:
* Abnormally dangerous activities
* Animals
* Defective products
## Footnote
This principle holds defendants accountable regardless of their level of care.
168
What is the basic rule for **abnormally dangerous activities**?
Defendant strictly liable for personal injuries/property damage caused by activity, regardless of precautions to prevent harm.
## Footnote
This rule emphasizes the inherent risks associated with certain activities.
169
What factors determine an **'abnormally dangerous' activity**?
Creates foreseeable/highly significant risk of harm even with due care; severity of harm; appropriateness of location; great value to community.
## Footnote
These factors help courts assess whether an activity warrants strict liability.
170
What is the scope of liability for **abnormally dangerous activities**?
Defendant liable for harm flowing from risk that made activity abnormally dangerous.
## Footnote
This ensures that liability is directly linked to the inherent risks of the activity.
171
What is **strict liability for wild animals**?
As species/class, not customarily kept in service of humankind. Owners strictly liable for harm from animal's dangerous propensities. Injuries to licensees/invitees: Strictly liable; trespassers: Not strictly liable (exception: vicious watchdog).
## Footnote
This rule reflects the unpredictable nature of wild animals.
172
What is **strict liability for domestic animals**?
If owner knows or reason to know particular animal has dangerous propensities, strictly liable. 'Dog-bite' statutes: Many states hold dog owners strictly liable (vary widely).
## Footnote
This emphasizes the responsibility of pet owners regarding their animals' behavior.
173
What is **strict liability for trespassing animals**?
Owner strictly liable for reasonably foreseeable damage by animal trespassing on another's land. Exceptions:
* Household pets (unless knows intruding harmfully)
* Animals on public roads (negligence standard).
## Footnote
This principle holds owners accountable for their animals' actions on others' property.
174
What defenses apply to **strict liability**?
Contributory negligence: Does not bar recovery. Comparative negligence: Jurisdictions vary (some not bar; others/Third Restatement diminishes recovery). Assumption of risk: Complete bar to recovery.
## Footnote
These defenses illustrate the complexities involved in strict liability cases.
175
What are the **four elements** of a defamation claim?
* Defendant made a defamatory statement
* Statement is of or concerning the plaintiff
* Statement was published to a third party
* Damage to the plaintiff's reputation results
## Footnote
Each element must be proven for a successful defamation claim.
176
What constitutes **defamatory language**?
Language that diminishes respect, esteem, or goodwill toward the plaintiff
## Footnote
Defamatory statements must be false to be actionable.
177
When is a statement **'of or concerning'** the plaintiff?
A reasonable person must believe the language refers to the plaintiff
## Footnote
Statements to a group are actionable if the group is small or context indicates it refers to a member.
178
What is **publication** in defamation?
The statement must be communicated to a third party
## Footnote
Repeaters of a defamatory statement are liable.
179
What are the types of **plaintiffs** in defamation for constitutional purposes?
* Public official
* Public figure
* Private individuals
## Footnote
Each type has different standards for proving defamation.
180
What constitutional limitations apply to **public officials/public figures** in defamation?
Plaintiff must prove actual malice
## Footnote
Actual malice means the defendant knew the statement was false or acted with reckless disregard for the truth.
181
What constitutional limitations apply to **private individuals** in defamation?
* Matter of public concern: Prove statement false and negligent
* Not a matter of public concern: Varies by state
## Footnote
Some states may not require proof of negligence.
182
What damages are available in **libel**?
* General damages
* Recovery without measurable harm
## Footnote
Libel involves written defamation, which is generally considered more harmful.
183
What damages are available in **slander**?
* Must prove special damages (economic loss)
* Exceptions for slander per se
## Footnote
Slander per se includes serious crimes, unfitness for trade, loathsome diseases, and severe sexual misconduct.
184
What constitutional limitations apply to damages in defamation for **public figures/officials**?
Actual malice standard = various types of damages available
## Footnote
This standard allows for broader recovery options.
185
What constitutional limitations apply to damages in defamation for **private individuals on public concern**?
Negligence standard = actual damages only
## Footnote
Actual malice standard allows for presumed damages.
186
What constitutional limitations apply to damages in defamation for **private individuals on private concern**?
Negligence standard = general damages without proving actual malice
## Footnote
Most states require at least negligence.
187
How do you **review a defamation claim**?
Ask if plaintiff is a public official/figure or private individual
## Footnote
This determines the standard of proof required for recovery.
188
What is the **truth defense** in defamation?
Absolute defense; a truthful statement cannot be actionable
## Footnote
Truth is a complete defense against defamation claims.
189
What is the **consent defense** in defamation?
If you consent to the defamation, you cannot sue
## Footnote
Consent negates the claim of defamation.
190
What **privileges** apply to defamation?
* Absolute privilege
* Conditional (qualified) privilege
## Footnote
Absolute privilege includes statements in judicial and legislative proceedings.
191
To whom does the **right of privacy** apply?
Individuals, not corporations
## Footnote
Typically terminates upon the death of the plaintiff.
192
What are the **four invasion of privacy causes of action**?
* Intrusion upon seclusion
* False light
* Appropriation
* Public disclosure of private facts
## Footnote
Each cause of action has distinct elements that must be proven.
193
What is **intrusion upon seclusion**?
Defendant intrudes upon the plaintiff's private affairs in a highly offensive manner
## Footnote
Examples include phone tapping and voyeurism.
194
What is **false light**?
Defendant makes public facts about the plaintiff that place them in a false light
## Footnote
This must be highly offensive to a reasonable person.
195
What is **appropriation of the right to publicity**?
* Appropriates another's name
* For defendant's advantage
* Without consent
* Causes injury
## Footnote
Appropriation must be exploitative but need not be commercial.
196
What is **public disclosure of private facts**?
Defendant publicizes a matter concerning the private life of another that is highly offensive and not of legitimate public concern
## Footnote
This tort is difficult to prove due to broad definitions of legitimate public concern.
197
What damages are required for **privacy torts**?
Plaintiff need not prove special damages; emotional or mental distress is sufficient
## Footnote
This differs from defamation claims where economic loss may need to be proven.
198
What defenses apply to **privacy torts**?
* Consent
* Qualified/absolute privilege
## Footnote
Truth is not a defense to privacy torts, unlike defamation.
199
What are the **three main types** of claims a plaintiff can bring in products liability?
* Negligence
* Strict liability for defective products
* Breach of warranty claim
## Footnote
Each type requires different elements to be proven by the plaintiff.
200
What are the **three types of product defects** in strict products liability?
* Manufacturing defects
* Design defects
* Failure to warn
## Footnote
These defects can lead to liability if proven.
201
What are the **elements** of a strict liability claim for defective products?
* The product was defective
* The defect existed when the product left the defendant's control
* The defect caused the plaintiff's injury
## Footnote
The product must be used in a foreseeable way.
202
In strict liability, to whom does the doctrine apply (chain of production/sale)?
Multiple parties in the chain of producing and selling the product
## Footnote
This includes manufacturers, distributors, and retailers.
203
How is a **manufacturing defect** established?
* The product deviated from its intended design
* The product does not conform to the manufacturer's own specifications
## Footnote
This shows that the product was not made as intended.
204
What are the **two tests** for establishing a design defect?
* Consumer expectation test
* Risk-utility test
## Footnote
These tests assess the safety and practicality of the product design.
205
When is the **risk-utility test** more likely to apply in design defect claims?
The more technical the product, the more likely experts are required
## Footnote
This test evaluates whether the risks of the product outweigh its benefits.
206
What are the **two questions** to establish failure to warn as a defect?
* Was there a foreseeable risk that was not obvious to an ordinary user?
* Were the steps taken to warn about that risk reasonable?
## Footnote
These questions help determine if adequate warnings were provided.
207
What is the **Learned Intermediary rule** for prescription drugs in failure to warn claims?
Manufacturers of prescription drugs must warn the prescribing physician
## Footnote
This rule recognizes the physician's role in informing patients.
208
What is the **exception** to the Learned Intermediary rule?
Drugs marketed directly to consumers
## Footnote
In these cases, manufacturers must provide warnings directly to consumers.
209
How can a **defect** be proven if the product is destroyed?
Courts may allow proof of a defect by circumstantial evidence
## Footnote
This is especially applicable when the defect causes the product to be destroyed.
210
What plaintiffs can bring a **strict liability claim**?
Anyone foreseeably injured by a defective product
## Footnote
This includes purchasers, other users, and bystanders.
211
Who are potential **defendants** in strict liability?
Anyone who sells the product when it is defective
## Footnote
Must be in the chain of distribution and in the business of selling.
212
Are **casual sellers** strictly liable?
No, casual sellers are not strictly liable
## Footnote
They may still be liable for negligence.
213
Can a seller seek **indemnification** in strict liability?
Yes, the seller may seek indemnification from another party
## Footnote
This could be the manufacturer or another seller.
214
What types of **damages** are recoverable in strict products liability?
* Personal injury
* Property damage
## Footnote
These damages must be directly related to the defect.
215
Is purely **economic loss** recoverable in strict liability?
Generally not recoverable under strict liability theory
## Footnote
May be brought as a breach of warranty claim.
216
Does **contributory negligence** completely bar recovery in strict liability?
Courts hesitate to allow the plaintiff's negligence to completely bar recovery
## Footnote
This means some recovery may still be possible.
217
How does **comparative fault** affect recovery in strict liability?
The plaintiff's own negligence will reduce any recovery
## Footnote
This applies in strict-products-liability actions.
218
What is the **assumption of the risk** defense in strict liability?
If the risk is known and voluntarily chosen by the plaintiff, they will not recover
## Footnote
This defense limits liability based on the plaintiff's knowledge.
219
When is a manufacturer/seller liable for **product misuse**, modification, or alteration?
Liable for foreseeable misuse, modification, or alteration of a product
## Footnote
This includes uses that are not intended but could be anticipated.
220
Does **substantial change** in the product bar recovery in strict liability?
Yes, substantial change in the product can bar recovery
## Footnote
This means the product is no longer in its original state.
221
Is compliance with **government standards** a defense in strict liability?
Compliance with safety standards is admissible evidence but not conclusive
## Footnote
It may help demonstrate that a product is not defective.
222
What is the **exception** to compliance with government standards as evidence?
Federal preemption
## Footnote
This occurs when Congress has preempted regulation in a particular area.
223
What is the **'state of the art' defense** in strict liability?
In some jurisdictions, the relevant state of the art at the time of manufacture is evidence that the product is not defective
## Footnote
In others, compliance with the state of the art is a complete bar to recovery.
224
Do **disclaimers, limitations, and waivers** bar recovery in strict liability?
Generally do not bar recovery in strict-liability claims
## Footnote
These are often deemed unenforceable in such cases.
225
How are **warranty claims** brought in products liability?
Warranty claims may generally be brought up and down the distribution chain
## Footnote
Direct privity in contract is not required.
226
What are the **two types of implied warranties**?
* Merchantability
* Fitness for a particular purpose
## Footnote
These warranties ensure products meet certain standards.
227
What are the **four elements** a plaintiff must prove in a defamation action?
* The defendant made a defamatory statement
* The statement is of or concerning the plaintiff
* The statement was published to a third party
* Damage to the plaintiff's reputation results
## Footnote
Each element must be established for a successful claim.
228
What constitutes **defamatory language**?
Language that diminishes respect, esteem, or goodwill toward the plaintiff
## Footnote
This can deter others from associating with the plaintiff.
229
Must **defamatory statements** be false?
Yes, defamatory statements must be false to be actionable
## Footnote
Truth is a complete defense to defamation.
230
Is an **opinion** actionable as defamation?
No, an opinion is not actionable unless it implies a basis in fact
## Footnote
This protects free speech.
231
What does 'of or concerning the plaintiff' mean in defamation?
A reasonable person must believe that the defamatory language referred to this particular plaintiff
## Footnote
This establishes the connection between the statement and the individual.
232
When can a **group member** bring a defamation action for statements referring to the group?
If the group is so small or the context is such that the matter can reasonably be understood to refer to that member
## Footnote
This allows for individual claims in small groups.
233
What is **publication** in defamation?
The statement must be communicated to a third party
## Footnote
This is essential for establishing liability.
234
Is a person who **repeats** a defamatory statement liable?
Yes, a person who repeats a defamatory statement may be liable
## Footnote
This includes sharing statements made by others.
235
Are **internet service providers** and platforms liable as publishers for defamation?
No, federal statute provides that they are not publishers for purposes of defamation
## Footnote
This protects platforms from liability for user-generated content.
236
What are the **three types of plaintiffs** in defamation for constitutional requirements?
* Public official
* Public figure
* Private individuals
## Footnote
Each type has different standards for proving defamation.
237
What is a **public official** in defamation?
A person who has substantial responsibility or control over a government office
## Footnote
This includes political candidates.
238
What is a **general purpose public figure**?
A person of persuasive power and influence in society
## Footnote
This includes celebrities and influential leaders.
239
What is a **limited purpose public figure**?
A person who thrusts himself into a particular controversy
## Footnote
This can include individuals involved in specific public issues.
240
What must a **public official** or **public figure** prove for constitutional limitations in defamation?
The person who made the statement either knew that it was false or acted with reckless disregard for the truth
## Footnote
This is known as the 'actual malice' standard.
241
What does '**actual malice**' mean in defamation?
The defendant either knew that the statement was false or was reckless with regard to the truth
## Footnote
This does not refer to motive.
242
For a **private individual** in defamation, what must be proven if the matter is of public concern?
The plaintiff must prove that the statement is false and that the person who made the statement was negligent
## Footnote
This establishes a lower standard for private individuals.
243
For a **private individual** in defamation, what constitutional limitations apply if not a matter of public concern?
Unclear whether constitutional limitations apply; most jurisdictions require at least negligence
## Footnote
This varies by state.
244
What is **libel**?
A written, printed, or recorded defamatory statement
## Footnote
This includes TV/radio broadcasts, e-mail, and electronic communications.
245
What is **slander**?
A defamatory statement that is spoken
## Footnote
This is distinct from written defamation.
246
What damages can a plaintiff recover in **libel**?
General damages (i.e., recovery without measurable harm)
## Footnote
This allows for compensation without specific proof of loss.
247
What damages must a plaintiff prove in **slander**?
Special damages (requires a showing of economic loss)
## Footnote
This establishes a higher burden for slander claims.
248
What are the **exceptions** to proving special damages in slander (slander per se)?
* Commission of a serious crime
* Unfitness for a trade or profession
* Having a loathsome disease
* Severe sexual misconduct
## Footnote
These statements are considered harmful without needing to prove special damages.
249
What damages are available to **public figures/officials** in defamation?
Actual malice standard = various types of damages available
## Footnote
This allows for broader recovery options.
250
What damages are available to a **private individual** for a matter of public concern in defamation?
Negligence standard = actual damages only; actual malice = presumed damages available
## Footnote
This reflects the lower burden for private individuals.
251
What damages are available to a **private individual** for a matter of private concern in defamation?
Negligence standard (most states require at least negligence) = general damages, including presumed damages
## Footnote
This allows for recovery without proving actual malice.
252
What is the **truth defense** in defamation?
Absolute defense; a truthful statement cannot be actionable as defamation.
## Footnote
This defense protects individuals from defamation claims when their statements are true.
253
What is the **consent defense** in defamation?
If you consent to the defamation, you cannot sue.
## Footnote
Consent negates the possibility of a defamation claim.
254
What are **absolute privileges** in defamation?
* The speaker is completely immune from liability for defamation
* Includes statements made in the course of judicial proceedings
* Includes statements made in the course of legislative proceedings
* Includes statements made between spouses
## Footnote
These privileges protect certain communications regardless of their truthfulness.
255
What is **conditional privilege** in defamation?
* Plaintiff must show a higher level of culpability
* Includes statements made in the interest of the defendant
* Includes statements made in the interest of the recipient of the statement
* Includes statements affecting some important public interest
## Footnote
Conditional privilege allows for certain statements to be made without liability under specific circumstances.
256
What is the requirement for **conditional privilege**?
The statement is made in good faith pursuant to some duty or responsibility.
## Footnote
Good faith is essential for this privilege to apply.
257
In required publications by radio and TV (e.g., statements by a political candidate), what **privilege** applies?
The station must carry and may not censor.
## Footnote
This ensures that political candidates have a platform to communicate their messages.
258
To whom does the **right of privacy** apply?
Applies to individuals, not corporations; typically terminates upon the death of the plaintiff.
## Footnote
The right of privacy is a personal right that does not extend to corporate entities.
259
What are the **four separate causes of action** for invasion of privacy?
* Intrusion upon seclusion
* False light
* Appropriation of the right to publicity
* Public disclosure of private facts
## Footnote
Each cause of action addresses different aspects of privacy violations.
260
What are the elements of **intrusion upon seclusion**?
Defendant intrudes upon the plaintiff's private affairs in a manner that would be highly offensive to a reasonable person.
## Footnote
This tort focuses on the invasion of personal privacy.
261
What are the **three elements of false light**?
* Defendant makes public facts about the plaintiff
* That place the plaintiff in a false light
* Which would be highly offensive to a reasonable person
## Footnote
False light claims involve misleading representations of an individual.
262
What are the **four elements of appropriation of the right to publicity**?
* Someone appropriates another's name or likeness
* For the defendant's advantage
* Without consent
* And causes injury
## Footnote
This tort protects individuals from unauthorized commercial exploitation of their identity.
263
Must **appropriation of the right to publicity** be exploitative?
Yes, the appropriation must be exploitative, but it need not be commercial.
## Footnote
Exploitation can take various forms, not limited to direct financial gain.
264
What are the elements of **public disclosure of private facts**?
* Defendant publicizes a matter concerning the private life of another
* The matter publicized is highly offensive to a reasonable person
* The matter is not of legitimate concern to the public
## Footnote
This tort addresses the unauthorized sharing of private information.
265
Why is **public disclosure of private facts** difficult to prove?
Courts broadly define 'legitimate public concern.'
## Footnote
This broad definition can make it challenging for plaintiffs to succeed in these claims.
266
Does a plaintiff need to prove **special damages** in privacy torts?
No, emotional or mental distress is sufficient.
## Footnote
This allows for recovery even without quantifiable economic losses.
267
What **defenses** apply to privacy torts?
* Consent
* Qualified and absolute privilege
* Truth (NOT a defense to privacy torts, as opposed to defamation)
## Footnote
These defenses can protect defendants from liability in privacy claims.
268
What are the **six elements of intentional misrepresentation (fraud)**?
* False representation about a material fact
* Scienter (defendant knows it is false or acts with reckless disregard)
* Intent to induce plaintiff to act in reliance
* Causation (misrepresentation causes plaintiff to act or refrain)
* Justifiable reliance
* Damages (actual, economic, pecuniary loss)
## Footnote
Each element must be proven for a successful fraud claim.
269
Is there generally a **duty to disclose** material facts in intentional misrepresentation?
No, generally no duty to disclose material facts to other parties.
## Footnote
This principle limits liability in many situations.
270
When may there be an **affirmative duty to disclose** in intentional misrepresentation?
* There is a fiduciary relationship
* The other party is likely to be misled by prior statements
* The defendant is aware that the other party is mistaken about basic facts
## Footnote
These situations create exceptions to the general rule.
271
Are **nominal damages** available in intentional misrepresentation?
No, nominal damages are not available.
## Footnote
Plaintiffs must demonstrate actual damages to recover.
272
What is the **measure of damages** in most jurisdictions for intentional misrepresentation?
Recovery is the 'benefit of the bargain': the difference between the actual value received and the value that would have been received if the misrepresentation were true.
## Footnote
This measure aligns with contract-like damages.
273
What measure of damages do some jurisdictions allow in **intentional misrepresentation**?
Out-of-pocket losses or the cost of conforming.
## Footnote
This provides alternative recovery options for plaintiffs.
274
What are the **elements of negligent misrepresentation**?
* Defendant provided false information to a plaintiff
* As a result of the defendant's negligence
* During the course of a business or profession
* Causing justifiable reliance and pecuniary loss
* The plaintiff is either in a contractual relationship with the defendant or is a known third party
## Footnote
Negligent misrepresentation focuses on the defendant's failure to exercise reasonable care.
275
Must justifiable reliance cause **pecuniary loss** in negligent misrepresentation?
Yes, the justifiable reliance must also cause the plaintiff to suffer pecuniary loss.
## Footnote
This requirement ties the reliance directly to the damages claimed.
276
What **defenses** can be raised in negligent misrepresentation?
Negligence defenses can be raised.
## Footnote
These defenses may include contributory negligence or other relevant arguments.
277
What damages are recoverable in **negligent misrepresentation**?
Reliance (out-of-pocket) and consequential damages if the negligent representation is proven with sufficient certainty.
## Footnote
This allows for recovery based on the losses incurred due to reliance on the misrepresentation.
278
What standard of care does **negligent misrepresentation** use?
The same standard of care as negligence, but it is a different cause of action.
## Footnote
This standard applies when there has been no personal injury or property damage.
279
What are the **four elements of intentional interference with a contract**?
* A valid contract existed between the plaintiff and a third party
* The defendant knew of the contractual relationship
* The defendant intentionally interfered with the contract, resulting in a breach
* The breach caused damages to the plaintiff
## Footnote
Each element must be established to prove this tort.
280
What is the nature of the **contract required** for intentional interference with a contract?
Must be a valid contract; cannot be terminable at will.
## Footnote
This ensures that only enforceable agreements are protected.
281
Can interference with **performance** other than inducing breach be actionable?
Yes, defendant may be liable when it prevents a party from fulfilling its contractual obligations.
## Footnote
This broadens the scope of liability for interference.
282
What limit applies to **defendant's conduct** in interference with performance?
The defendant's conduct must exceed fair competition and free expression.
## Footnote
This ensures that legitimate business practices are not penalized.
283
What are the **elements of interference with a prospective economic advantage**?
The elements are the same as for intentional interference with a contract, but the conduct must be independently wrongful.
## Footnote
This tort protects potential business relationships from wrongful interference.
284
What are the **three elements of misappropriation of trade secrets**?
* Plaintiff owns information that is not generally known
* Plaintiff has taken reasonable precautions to protect it
* Defendant acquires the secret by improper means
## Footnote
This tort safeguards confidential business information.
285
What are the **five elements of trade libel**?
* Publication
* Of a false or derogatory statement
* With malice
* Relating to the plaintiff's title to his business or quality of products
* Causes special damages
## Footnote
Trade libel addresses false statements that harm a business's reputation.
286
What are the **five elements of slander of title**?
* Publication
* Of a false statement
* Derogatory to the plaintiff's title
* With malice
* Causing special damages
## Footnote
This tort specifically targets false statements about ownership.
287
What are the elements of **malicious prosecution**?
A person intentionally and maliciously institutes or pursues a legal action for an improper purpose, without probable cause, and the action is dismissed in favor of the person against whom it was brought.
## Footnote
This tort protects individuals from wrongful legal actions.
288
What are the **two elements of abuse of process**?
* The defendant sets in motion a legal procedure in the proper form but has abused it to achieve some ulterior motive
* Some willful act perpetrated in the use of the process that is not proper in the regular conduct of that proceeding
## Footnote
Abuse of process focuses on the misuse of legal procedures.
289
Must conduct in **abuse of process** cause damages?
Yes, the conduct must also cause damages.
## Footnote
This requirement ensures that only harmful actions are actionable.
Florida Bar Exam
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