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CBX TIPS If tort not named, pick likely cause of action: (1) Is there an intentional tort (ABC FITT)? (2) Do facts support S/L (PAW)? (3) If neither of these, then negl (DBCDD) NB: If Π fails to prove prima facie case (or all 4 elements of negl) look for crime, K, etc. theory INTENTIONAL TORTS ABC FITT Intent – 3 ways to establish (ASCT) Actual (PAT): Purpose Act Tort Substantial Certainty: consequences tort Transferred:– different person/tort (not w/ IIED) ASSAULT (IRI) Intent RP Apprehension (knowledge) of Immediate Battery (weapon display; hasty movement) NB: Mere words not enough; words may negate immediacy BATTERY (IHP) Intent Harmful or offensive contact w/ Person (or thing attached) NB: Hypersensitivity not recognized Future intent ok (set bomb timer) CONVERSION see trespass FALSE IMPRISONMENT (ICBE) Intent Confine Π (& Π knows) w/o Consent to Bounded area RP means of Escape m/b known to Π FI DEFENSES (LISP) Lawful Imprisonment Shopkeeper’s Privilege RP BFT RP Belief, Force & Time INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IOES) Intent Outrageous & Extreme conduct Severe emotional distress NB: Mere insults not outrageous If continuous, by common carrier/inn keeper, or if Π fragile class (old, young, pregnant, minority) c/b outrageous TRESPASS TO LAND (POPE) Physical Invasion Of Land By Person or tangible object (includes subsurface & air space) Entry can be: (INA) Intentional (mistake of ownership no defense) Negligent/reckless (damage req’d for liability) Accidental - no liability TL DEFENSES (CARN) Consent of one in lawful possession Abate public/private nuisance Reclaim prop Public/private Necessity (must pay) TRESPASS TO CHATTEL*/CONVERSION (IDP)## Intent Damage To Personal Prop TCC DEFENSE: Consent (ERN) Express, implied or by law Requires legal capacity Negated if obtained by fraud or duress *Chattel is all things owned other than real estate ## Difference is degree of invasion If slight, use trespass If extreme, use conversion FMV at time of damage & can keep prop DEFENSES TO INTENTIONAL TORTS (CND2) CONSENT (CEIW) Capacity Express OR Implied (custom/conduct) W/n Scope
Sullivan) avoids chill on 1st DEFAM DEFENSES (CTP) Consent .Δ burden unless FAD Privilege (AQ) Absolute Spouses Govt officers (working) Qualified Letters of rec Communication w/ police Socially useful speech PRIVACY (FIMP) FALSE LIGHT (MOD) – publication creating false light Misrep (major) Objective standard Disseminated widely NB: Mistake no defense Allowed economic & emotional recovery INTRUSION (ISO) – of privacy in seclusion Invading Solitude Privacy expected No trespass req’d Objectionable to average person MISAPPROPRIATION – taking Π’s name/picture for Δ’s commercial advantage Newsworthiness exception PUBLIC DISCLOSURE OF PRIVATE FACTS (CDON) Confidential Info – (ex: medical) Disseminated widely Objectionable to average person Newsworthiness exception PRIVACY DEFENSES (CPN) Consent Privileges false light & PDPF only No defense mental handicap. unless malice proven Falsity – Π’s burden Fault – Δ aware of inaccuracy NB: One w/ honest RP belief not liable for FAD (Times v. insanity.NECESSITY (ELP2) Emergency Landowner must allow in or be liable Public (may pay) Private (will pay . or stupidity NEGLIGENCE DUTY (DBCDD) . rep.only actual. emotional NB: Mere name-calling not defamatory SLANDER PER SE (LUMP) Loathsome disease Unchaste character Moral turpitude Profession/business FIRST AMENDMENT DEFAMATION (DπPCDF2) Defamatory Statement Of & Concerning Π Publication Causation Damages . express/implied Truth .capacity.no nominal/punitive) DEFENSE OF Self/Others/Property (ADT) Accuracy (RP) Degree of Force (equal) Timing (in progress or imminent) DISCIPLINE Parent/teacher RP DEFAMATION (CL/FAD/PRVCY) COMMON LAW DEFAM (DO&CπPCD) Defamatory Statement (harm to rep) Of & Concerning Π (m/b alive) Publication (to at least 1 other) Causation (intent not req’d) Damages – special.
unless Δ had last clear chance Pure Comparative compare % faults Partial Comparative compare % fault. Π injured 4 well-settled fact patterns (MRPD) . something happens.Δ always liable here Intervening Medical negl Intervening negl Rescue Intervening Protection/reaction forces Subsequent Disease/injury Other decided cases: Acts of nature not 4cable Suicide only 4cable if result of Δ’s negl Subsequent crim/intentional torts rarely 4cable DAMAGES .e. Physical.Π Assumption of Risk . statutory compliance impossible Special duties: (CPL) Children (subjective. if (ATIU) Artificially dangerous condition Kids likely to Trespass Immature. Emotional NEGL. DEFENSES (CP2A) Contributory recover nothing.Must prove damages (remember the eggshell Π): LOU. rescue someone in peril) UNLESS: Caused peril Pre-existing relationship Began rescue.Π may not recover if: Knew of risk & Proceeded anyway STRICT LIABILITY (PAUD) PRODUCTS LIABILITY (MDE4CH) Merchant in chain of sale Defective product (made/design) Existed when it left Δ’s hand 4Cable user. LOW.Obligation to reduce injury to others (4CSoC) To whom is duty owed? (4Cable) All 4Cable (Andrews) Zone of danger (Cardozo) How much duty is owed? (Standard of Care) C/L Standard: RPP in similar circs (unless Δ has superior knowledge) Statutory Standard: negl here = negl per se if two conditions are met (PC): Member of Protected class & Class of risk law designed to protect Exception: If compliance more dangerous than violation. making 4Cable use Physical Harm NB: Argue Hypothetical Alternative Design (SEP): Safer than market version Economical . can’t stop can’t leave Π worse than found BREACH Π must identify Δ’s conduct & show it to be unRP Remember: Res Ipsa Loquitor (“thing speaks for itself”) accident like this doesn’t happen in absence of negl & Δ in position to cause injury CAUSATION (A&P) ACTUAL CAUSE (“But For Test”) M/h link b/n breach & injury If multiple Δs: Mingled Causation – both Δs contributed substantially (two fires) Unascertainable Causation – each Δ’s burden to prove his innocence (two bullets) PROXIMATE (Legal) CAUSE: Liable if injury 4Cable: Direct – no intervening causes b/n negl & injury Indirect – Δ acts. so fail to appreciate danger/risk Utility risks Professionals – duty of average pro in similar community Land Occupier: (DULI) Discovered/Anticipated trespassers (KMH): (1) Known (2) Man-made (3) Hidden death traps Undiscovered trespassers (No duty) Licensees (social guest): (1) known (2) hidden traps Firefighters/Police: licensees who assume risk of job Invitees (store customer) (RPHD): (1) RP knowable (2) Hidden traps (3) Duty to inspect Duty to protect satisfied in 2 ways: Fix dangerous condition OR Warn No duty to act affirmatively (i.. similar age/experience/IQ/circs) No negl if under 4 Adult standard if adult activity Child Trespassers (aka: “Attractive Nuisance Doctrine”) Duty to protect. m/b > than 50% .
liability for damage by anyone driving with auto owner’s consent PARENT/CHILD: NO vicarious liability INTERFERENCE WITH BUSINESS RELATIONS (VKID) Valid known K/expectancy Intentional interference causes breach Damages ok NUISANCE ELEMENTS (PUB/PRIVT) PUBLIC: Unreasonable interference with health. nuclear energy or radiation S/L DEFENSES (CA) Comparative Negl Assumption of Risk NB: defective product & ultra-hazardous condition – safety precautions irrelevant WARRANTIES (E/IM/IF) EXPRESS WARRANTY: (SPS) Statement/promise/description/floor model No Privity req’d S/L if rep untrue IMPLIED WARRANTY OF MERCHANTABILITY: Goods fit for ordinary purpose IMPLIED WARRANTY OF FITNESS FOR PARTICULAR PURPOSE: (SB) Seller knows buyer wants fit goods & Buyer relies on seller’s judgment DEFENSE . or prop rights of community Remedy is usually an injunction PRIVATE: Substantial interference with another private individual’s use or enjoyment of prop that he actually possesses Remedy can be injunction or money damages DEFENSES: (CA) (1) Contributory negl (2) Assumption of risk MISREPRESENTATION OF A MATERIAL FACT (Intent’l/Negl. Frolic HIRING PARTY/INDY CONTRACTOR: NO vicarious liability EXCEPTION -.) INTENTIONAL (MKIRCD) (1) Misrepresentation (2) Knowledge (3) Intent to induce P (4) Reliance (5) Causation (6) Damages (actual $ loss) NB: Non-disclosure not actionable unless fiduciary relationship NEGLIGENT (MBRCD) (1) Misrepresentation (2) Breach (3) Reliance (4) Causation .if K’or harms invitee on land OR ind.Liability on one for acts of another based on relationship EMPLOYER/EMPLOYEE (Respondeat Superior): Responsible for employee torts if w/in scope of employment Detour v. contractor engaged in non-delegable duty OR ind.not strictly liable for dog bites unless known propensity Trespassing Cattle Wild Animals (S/L) ULTRA-HAZARDOUS ACTIVITIES (CSU) Cannot be made safe Severe risk of harm Uncommon in area Ex: explosives. highly dangerous chemicals or biological substances.Disclaimers (m/b conspicuous) NB: Limitation of PI damages automatically unenforceable VICARIOUS LIABILITY (EHOP) . contractor involved in ultra-hazardous activity OWNER/DRIVER: Owner liable when driver acts as agent Permissive use doctrine . safety.Practical ANIMALS (DTW) Domesticated .
Non-manufacturer can get indemnification in product case . if one D pays it. entitled to contribution for amount not responsible for from other D’s Exceptions: Contractual agreement.(5) Damages LOSS OF CONSORTIUM (SSS) Uninjured spouse has separate cause of action LOC: (1) Loss of Services (laundry/mow lawn/cook) (2) Loss of Society (companionship) (3) Loss of Sex CO-DEFENDANTS RIGHTS/COMPARATIVE CONTRIBUTION DEFINE Jury assigns numbers.
Abbreviation Key RP reasonable. reasonable person MPC Modern Penal Code Δ defendant Corp corporation Circs circumstances V victim m/b must be K contract Juvi juvenile peremps peremptory challenge admiss admissible SOL statute of limitations PC probable cause DP due process unRP unreasonable person 3PB third party beneficiary B4 before en4able enforceable P’or promissor Op operation Uni K unilateral contract TPΔ third party defendant CA California Rules SH shareholder w/ with G’ee grantee RPP reasonably prudent person SP separate property Q question Cong congress/congressional CEC CA Evidence Code COI conflict of interest NG not guilty Tx treat Ex: example usu. knowing & intelligent cred credibility Ev evidence DJ double jeopardy CBX California Bar Exam B buyer h/b/d had been done! QK quasi-contract S seller Det detrimental P’ee promisee SJx supplemental jurisdiction D Directors S/L strict liability GP general partner b/c become(s)/became OOS out of state Prej prejudice IS intermediate scrutiny T testator T’ary testamentory o/s outstanding Prom/E promissory estoppel PJx – personal jurisdiction SMJx – subject matter jurisdiction JNOV J not w/standing verdict JMOL J as a matter of law RJMOL renewed JMOL MSJ motion for summary J Depo deposition RFPs requests for production RFA requests for admission Rogs interrogatories C/O court order priv’d privileged Pub publication Ct court CQ common question X cross COA cause of action T/O transaction/occurrence J Justice FED Federal Rules nat’l national PCV piercing the corp veil W/o without G’or grantor Cov’t covenant CP community property W witness/Will Punis – punitive damages CPC CA Probate Code Dispo disposition LOW loss of wages . usually C/L common law m/h must have m/h/h must have had M modernly/married prelim preliminary FM felony murder Q question! S&S search & seizure Wrnt warrant ID identification GJ Grand Jury B/Benies beneficiaries/benefits rq’d required P/Ev parol evidence Bi bilateral r’cd received 3P third party S&C summons & complaint O Officer/Owner BOD Board of Directors Pship partnership RAP Rule against Perpetuity Mort mortgage QCP quasi community property SS strict scrutiny Exec executive branch DRR dependent relative revocation IWC informed written consent ALI American Legal Institute 4cable foreseeable NB nota bene (note well) Stat statutory Ø against w/not/h would not have s/h/b should have been Jx jurisdiction MisD misdemeanor GBI grievous bodily injury VKI voluntary.