You did that on purpose!
Elements of Assault
1) Intent
2) Apprehension of a harmful OR offensive contact, AND
3) Imminence
Elements of a Negligence Claim
1) Duty
2) Breach
3) Causation: BOTH "but-for" and proximate
4) Damages
What is an affirmative defense?
Who has the burden of asserting the affirmative defense?
It is an argument by the Defendant that for reasons beyond the elements of the claim, the Defendant should still prevail. Essentially the Defendant did the act...but so what.
The Defendant has the burden of asserting an affirmative defense.
What is the standard or type of "intent" that must be proven when a Defamation suit is brought by a Plaintiff who is a public figure?
To avoid self-censorship, the plaintiff can
only prevail by proving by clear and convincing evidence that the defendant either knew that the statement was false or recklessly disregarded whether the communication was false (a fault standard known as “actual malice”).
Negligence is insufficient.
Under Negligent Infliction of Emotional Distress, what is the "Zone of Danger" (majority rule)
The defendant is liable for causing emotional
distress if the plaintiff was in the zone of danger and could have been physically contacted, but was not contacted, suffering only emotional distress.
Explain the difference between a single intent jurisdiction and a dual intent jurisdiction...
If you were a Defense lawyer, which jurisdiction would you prefer and why?
Single: Intended to commit the act
Dual: Intended to commit the act AND intended the contact to be harmful or offensive
As the Defense, you would want a dual intent, because the Plaintiff would have to show your client intended to commit the act AND intended for it to be harmful. This is an added layer for them the Plaintiff to prove.
Standard for children:
What type of actions can a child engage in that would change this standard?
Held to a reasonable child standard-they have a duty to act with level of care as a reasonably prudent child of the same age, intelligence, education and experience
-Dangerous Adult Activities
Two elements of self-defense and defense of other:
1) Used force or threat of force to protect themselves or a third party from an actual or what they reasonably believed to be an immediate threat of harm or offensive contact; AND
2) the amount of force used was reasonable
Cannot use disproportional force against the aggressor.
What is an "abnormally dangerous activity"?
And if it is...what type of liability is it?
(1) is not a matter of common usage; and
(2) presents a highly significant risk of harm (extreme dangerousness) to other persons or their property
that can’t easily be mitigated through the exercise of reasonable care.
Explain what an alternative cause is under the Factual Cause ("Cause in fact")
Plaintiff having difficulty proving the "but-for" against one particular defendant because multiple defendants were involved.
In a case involving alternative causes, once the plaintiff has shown breach
(unreasonable conduct) by all defendants, the burden shifts to each individual
defendant to prove that they did not cause the harm. So, more than one defendant
can be found liable (so-called joint and several liability).
Elements of False Imprisonment
1) Intent
2) Confinement or restraint, AND
3) In a bounded area
What is the Hand Formula?
Can you give me an example of how it would work in the real world?
A way to determine reasonableness.
A reasonable person decides how to act based on three variables: 1) probability of harm (P), 2) the magnitude or harm or loss (L), and 3) the burden of avoiding the harm (B).
Defendant acts unreasonably when B is less than L multipled by P.
Elements that Defendant must prove for Secondary Implied Assumption of Risk
(1) the plaintiff had knowledge of the particular risk;
and
(2) the plaintiff voluntarily chose to accept that risk.
Three types of Defective Condition for Products Liabilty
(1) manufacturing defect; an unintended flaw in the product due to production errors or
random chance, in which one unit of the product departs from its intended design.
(2) design defect; a flaw in the product's design,
(3) warning defect, a lack of adequate warning accompanying the product about the risks
involved in using the product.
Ways a Plaintiff can prove a Defendant acted unreasonably...meaning breach.
1) the Hand Formula
2) violation of statute (Negligence per se)
3) deviation from customary behavior
4) circumstantial evidence (res ipsa loquitor)
Elements of IIED
1) Extreme or outrageous conduct
2) Intentionally or recklessly
3) Causes severe emotional distress
Negligence per se doctrine:
1) person violates a statute
2) without excuse
3) and the statute is designed to protect against the type of accident the person's conduct causes, and
4) the victim is within the class of persons the statute is designed to protect
Five types of Consent
1) Actual consent (subjective)
2) Apparent consent (objective)
3) Sustitute consent
4) Implied-in-law (constructive consent)
5) Emergency doctrine
Defenses to Plaintiff's Strict Liability Claims
(1) plaintiff’s misuse of the product; and
(2) the substantial alteration of the product.
A product is not in a defective condition when it is
safe for normal handling and consumption.
If the product was altered or modified after sale in a way that was not reasonably foreseeable, and the alteration or modification caused the plaintiff’s injury rather than any defective condition of the product prior to the alteration or modification, then the seller is not liable
How do you know an animal is considered a "wild animal" for purposes of strict liabilty?
An animal that:
(1) is not generally domesticated; and
(2) if not restricted, is likely to cause injury.
Look at the surrounding facts to determine this.
Types of evidence that can be used to prove Severe Emotional Distress
-Physcial manifestations: Ex. heart attack, headaches, weight loss...
-Psychological manifestations: Ex. evidence of nightmares, anxiety, excessive crying spells...
-Treatment and/or diagnosis: Plaintiff has sought treatment or been diagnosed with medical or psychiatric disorder such as PTSD
What is a licensee?
What duty is owed to them?
Licensee: A person who enters property with the express or implied permission of the owner/occupier.
There are only two kinds of persons who are licensees: social guests and traveling salespersons.
An owner/occupier has a duty to warn licensees (social guests and traveling salespersons before the owner/occupier has agreed to transact
business with them) of known artificial and natural concealed dangers (irrespective of whether they pose risk of grave harm or death).
No duty to warn of open and obvious dangers.
Three approaches to Comparative Negligence
(1)Pure comparative negligence: Plaintiff’s negligence is never a bar to recovery, no matter how high the percentage of fault;
(2) Modified 49% rule: Plaintiff’s claim is barred if fault is 50% or greater;
(3) Modified 50% rule: Plaintiff’s claim is barred if fault is 51% or greater
Elements of Public Disclosure of Embarrassing Private Facts
(1) Defendant publicizes information about the plaintiff;
(2) The publication would be highly offensive to a reasonable
person; and
(3) The information is not of legitimate public concern.
Note: Unlike defamation, the information disclosed does not have to be false (indeed, public disclosure can only be based on true information). And, unlike intrusion upon seclusion, the public disclosure of embarrassing private facts does not require that the information be obtained in any particular way.
Difference between intervening and superseding causes
Intervening cause (definition): An event (including an action of the plaintiff, an action of a third party, or a natural force) that occurs after the defendant’s wrongful act.
Superseding cause: An intervening cause that was (1) so “highly improbable” and “extraordinary”
(2) as to bear no reasonable connection to the harm threatened by the defendant’s wrongful act.