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Bar Review

TORTS & TORTS REMEDIES (Summary Flowcharts)

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TORTS
(Overview) Personal injury PERSON Emotional distress

Libel Reputation Slander Intrusion WHAT IS BS INJURY? Publicity Privacy Deceit Economic False Light Comm. Approp. Malicious prosecution/ Abuse of process

Contract (Interference) Negligence Strict Liability Real PROPERTY Personal Vicarious liab Duty to control Contribution Indemnity ACTUAL CAUSE

B
LIABILITY WIDENING IS THE TARGET ) A RESPONS. )?

B
LIABILITY NARROWING Death

Wrongful death action Survival action Survival Intent Subst. Certainty

INTENTIONAL: )s Volitional Act and State of Mind IDENTIFY

BS THEORY(IES)

STRICT LIABILITY: )s Abnormally Dangerous Activity, Defective Product or Animal NEGLIGENCE: )s Unreasonable Conduct

INTENT

Wanton Reckless

NEGLIGENCE

STRICT LIABILITY

19E

Substantial certainty INTENT Transferred intent

INTENTIONAL
Assault

Body

Battery False Imprisonment

Person

Emotions Reputation/Privacy

Defamation (Libel/Slander) Invasion of Privacy Malicious prosecution/ Wrongful institution of civil proceedings/Abuse of process

Intrusion Public disclosure False light Commercial appropriation

INJURY Real

Trespass Public Nuisance Private Conversion Property Personal Trespass

Deceit Business Inducing breach of contract/Interference w/ prospective business advant.age

Consent

Exceeds Scope Fraud Illegal Discipline Arrest Shopkeeper Self Others Property Public Felony Misdemeanor Prevention

Authority DEFENSES Defense

Necessity Private

Body Tort ) s Act Emotional Distress (Fright) Negligent Effect of Mistake

Emotional Distress Intentional: Serious & outrageous Zone of danger Physical injury Bystander ?

19F

NEGLIGENCE
Reas. care to foreseeable Bs Affirmative Act Exceptions DUTY Bystander Omission to Act Good Samaritan Special Relationship Land occupiers Emotional distress Wrongful life General Rule: No Duty Creates the peril Reliance Duty to care Duty to warn Duty to control Conduct Promise

B in class
Statute STANDARD OF CARE Reasonable care under the circumstances Professional Carrier Child (Adult activity?) Emergency Custom Mental Illness DUTY OF
LAND OWNER Trad: Status of B Modern: Reasonable

Type of harm Excuse

Natural Conditions
Who is the

Aritficial Conditions RC No Duty


Warn or Make safe Known Dangers Warn or Make safe Known Dangers

Activities RC No Duty RC RC RC

B?

Outside the Premises Unkown Trespasser Known Trespasser License Invitee

No Duty (except trees) No Duty No Duty


Warn or Make safe Known Dangers

RC

RC

19G

Unexcused violation of statute Gravity/ Likelihood BREACH Reasonable person Probably negligence Res ipsa loquitur Probably Burden/ Utility

B did not contribute

But For Actual Substantial Factor Summers v. Tice Market Share CAUSATION Direct Foreseeable result? Type WagonMound Legal Foreseeable result? Indirect Effect of Intervening Force Dependent Independent Abnormal? Unforeseeable? Extent Type Extent Polemis

DAMAGES Last Clear Chance Contributory neg Reckless ) Pure Comparative neg Modified Express Assumption of Risk Implied

DEFENSES

B s Conduct

19H

STRICT LIABILITY
Domestic Animals Wild High Risk ) 's ACTIVITY Abnormally Dangerous Cannot Eliminate Risk Uncommon in Area Intentional (Battery) Negligence Defective Products Strict Liability Implied Warranties Express Warranty Merchantability Fitness for particular purpose

B:
Parties

Buyer / User / Bystander Mfr / Retailer / Assembler Franchisor

New Goods Real Prop Services Used

): ):

Manufacturing (Flaw)
STRICT PRODUCTS LIABILITY * Also Discuss: 1) Negligence 2) Warranties

Consumer Contemplation Defect Design


Danger/Utility (Feasible Alternative)

Warning (Lack of)


Personal Injury Damages Property Damage Economic loss Foreseeable Product Misuse Unforeseeable Defenses Product Itself Other

B 's Fault

Contrib/Comparative Fault Assumption of Risk

19I

DEFAMATION
Defamatory Statement of Fact Reputational harm Fact vs. opinion

Also consider:
INVASION OF PRIVACY EMOTIONAL DISTRESS Intentional Negligent

Individual/Group
Common Law

Concerning

B
Use of extrinsic facts

Innuendo Inducement Colloquium


Intentional ok ) s Fault Negligence ok Strict Liability No Initial Publisher Responsible ) s Repeaters Disseminators

Published to 3d party (Communicated)

Ordinary slander Damaging to B Slander per se Libel

Business/Profession Unchaste woman Disease Crime

Constitutional Law Overlay (Approach)

1. 2.

Is the B a public figure or private person? Is the subject matter a public or private concern? -- Standard -- Damages

3.

Was the standard violated? A. B. Public figure B v. Media ) Public figure B v. Non-Media ) New York Times Malice New York Times Malice Negligence - actual damages Malice - presumed damages Negligence -presumed damages Strict Liability ? ? ?

C. Private B v. Media ) (Public Non-Media ) concern) D. Private B v. Non-Media ) (Private concern)

Truth Defenses Retraction Consent

Trad. view - B/P on ) Modern - B/P on B C/L Privileges

Absolute

Spousal Govt. Reporting Interest Fair Comment

Conditional

19J

TORT REMEDIES
Personal injury

D R I

General TYPES OF DAMAGES Nominal Compensatory Punitive Property (Real/personal) Special Destroy Damage Take
Foreseeable Certain Unavoidable

ASSAULT BATTERY FALSE IMP. MENTAL DISTRESS

- Nominal ok - Compensatory - Punitives ok if ) acts with malice

Rental value or Ouster TRESPASS TO R.P. Mesne damages Diminution in value or Cost of repair Diminution in value or Cost of repair Public NUISANCE Private OK if special type injury Permanent nuisance-Diminution in value Loss of use, enjoyment Yes, depends on nature, extent of damages (dim in value or cost of repair) Yes, FMV All losses prox'ly caused Caveat: economic loss Caveat: mental distress alone STRICT LIABILITY (No punitives) All loses prox'ly caused Caveat: economic loss Limit: Damages flowing from dangerous propensity Depends on Theory: See above Benefit to )

Severance

Injury DAMAGES

TRESPASS CHATTEL

CONVERSION

NEGLIGENCE

(No punitives)

PRODUCTS

19K

DEFAMATION

Damage to reputation Presumed? Libel/Slander Per Se Caveat: Gertz - Actual Damages Special Pecuniary losses always recoverable Punitive-maybe Publicity - Distress plus special damages Intrusion - Distress plus special damages False light - Distress plus special damages Comm. approp. - Benefit to ) Maj: expectation (benefit of bargain) Min: out of pocket Maj: tort measure Min: K. measure Caveat: speculative

PRIVACY DAMAGES (continued) FRAUD/DECEIT INTERFERE W/ K PROSP. ADV.

Ejectment

Legal
RESTITUTION

Replevin

Equitable (Quasi-K)

Constructive Trust Equitable Lien

Tort liability theory Damages Ejectment Replevin Jurisdiction Feasibility


INJUNCTION TRO Prelim. Inj. Perman. Inj.

Speculative Multi suits Real property Irrep. injury

Inadequacy of Legal Remedy

Mandatory vs. Prohibitory When?

Balancing

Who? What torts?

Property Rt.

Traditional view Modern view Laches Unclean Hands

Defenses

Personal Business Nat. security

Free speech Criminal acts

19L

LAW SCHOOL BENEFITS*


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subjects including Wills, Trusts, Community Property, Business Associations (Corporations, Agency, Partnership & LLCs), Civil Procedure and Professional Responsibility.

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$1000 down payment locks in Tutorial Program tuition & entitles Enrollee to the above, plus: 1. Upper Division Program, including:
a. iPod - Enrollees receive an iPod containing over 32 hours of substantive review, including lectures covering Constitutional Law, Criminal Procedure, Evidence, Wills, Trusts, Community Property, Business Associations (Corporations, Agency, Partnerships & LLCs) and Professional Responsibility. b. Upper Division Volume - This book contains flowchart handouts for the review lectures contained on the iPod. The flowcharts are designed to be used with the review lectures to give students a visual framework for learning and organizing the law. They can also be used to develop issue-spotting approaches and help to simplify exam outlining.

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*Effective 08/11/09; subject to change without notice.