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Terms in this set (62)

COMMON LAW ELEMENTS (1-4):

1. DEFAMATORY LANGUAGE
- Opinions/name-calling insufficient. Must allege facts.
- If not defamatory on face, pltf can plead additional facts to show innuendo.

2. OF OR CONCERNING THE PLAINTIFF
- Plaintiff must be alive. Can't defame a dead person.
- An entity may be defamed, in a limited sense.
- Plaintiff must establish that a reasonable person would understand the statement to be about the plaintiff.
- If statement does not name plaintiff on its face, plaintiff may show extrinsic evidence to establish that the statement is about him (called pleading "colloquium").
- Group Defamation
(a) if statement refers to all members of small group, each member may establish the statement is about him merely by asserting that he is a member of the group (easy)
(b) if statement refers to large group, no member can prove that the statement is about him (auto lose)
(c) if statement refers to some members of small group, plaintiff can recover if reasonable person would view statement as referring to him (regular)

3. PUBLICATION BY DEFENDANT TO A 3RD PERSON
- either intentional or negligent communication to a third person who understands it.
- The intent must be to publish; not to defame. Each intended publication is a separate offense of defamation
- Trick Question - if the defendant makes the defamatory statement to the plaintiff only, that is not publication and thus no defamation.
- Primary publishers (newspaper) are liable to same extent as author/speaker
- Secondary publishers (seller of newspaper) are liable only if she knows or should know of the defamation

4. DAMAGE TO A PLAINTIFF'S REPUTATION
(a) if Libel, the plaintiff does not need to prove special damages. General damages are presumed.
- Note: radio and TV are considered libel, not slander.
(b) if Slander, the plaintiff must prove special damages unless it is Slander Per Se.

IF THE DEFAMATION INVOLVES A MATTER OF PUBLIC CONCERN, THE CONSTITUTION REQUIRES PLAINTIFF TO PROVE TWO ADDITIONAL ELEMENTS (5-6):

5. FALSITY OF THE STATEMENT

6. FAULT OF THE DEFENDANT
(a) If Plaintiff is Public Figure/Official - Actual Malice
- "public figure" = has achieved pervasive fame or notoriety or has voluntarily assumed a central role in a particular public controversy.
- "Actual Malice" = Knowledge of Statement's Falsity OR Reckless Disregard as to its Truth.
(e.g. deliberately altering a quotation if it causes a material change in the meaning conveyed)
- Damages = actual are presumed, and can get punitive.
(b) If Plaintiff is Private Person - Negligence
- Damages = actual damages only
Two Parts:

(1) TO WHOM IS THE DUTY OWED?
- Foreseeable Victims.
If the defendant's conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, the defendant owes that plaintiff a duty of care. Defendant must take risk-reducing precautions.
- Unforeseeable/Palsgraf Victims.
(a) Majority View: plaintiff can recover if she can establish that a reasonable person would have foreseen a risk to her under the circumstances, i.e. she was within the Zone of Danger
(b) Minority View: everyone is foreseeable, i.e. the plaintiff is owed a duty if she can show the defendant breached a duty to a foreseeable plaintiff.
- Exceptions/Caveats:
(a) a rescuer is a foreseeable plaintiff where defendant negligently put himself or a third person in peril
(b) Prenatal Injuries - In cases of failure to diagnose a congenital defect or to properly perform a contraceptive procedure, the child may not recover for "wrongful life", but the parents may recover damages in a "wrongful birth" or "wrongful pregnancy" action for any additional medical expenses and for pain and suffering from labor.
(c) Intended Beneficiaries of Economic Transactions
A third party for whose economic benefit a legal or business transaction was made may be a foreseeable plaintiff.
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(2) HOW MUCH DUTY IS OWED?

THE REASONABLY PRUDENT PERSON STANDARD = Default
- Definition: an objective standard; one's conduct is measured against what the "average" person would do.
- "Average Person": we do not make allowances for a defendant's particular shortcomings. In effect, rule is harsher on some people, e.g. an adult who is mentally 8 years old will still be held to the standard of an average adult with average IQ.
- Exceptions:
(a) if the defendant has superior skill/knowledge, he is judged against a reasonable person with that same skill/knowledge (e.g. professional racecar driver is expected to drive private car on public street with more skill) driving private car on public streets is held to higher standard)
(b) if the facts make them relevant, defendant's physical characteristics may be taken into account (e.g. a blind defendant negligently flying a plane. A reasonable blind person would not do that)

SPECIAL DUTY STANDARDS = Displace the Default
1. Negligence Claims Against Children
2. Standard of Care for Professionals
3. Premises Liability
4. Statutory Standard of Care
5. Duty to Act Affirmatively
6. Negligent Infliction of Emotional Distress
Arises when someone enters property and gets hurt by a dangerous condition while there.

RULE: The amount of duty owed depends on the type of entrant.

1. Undiscovered Trespassers - ZERO
- Entrant: those who come on land without permission and landowner does not know they are there
- Duty: ZERO

2. Discovered Trespassers - KNOWN MAN-MADE DEATH TRAPS
- Entrant: those landowner knows about or should know about (i.e. anticipated trespasser)
(e.g. schoolkids use your yard as shortcut - you can see tramped grass and cigarette butts, beer bottles, etc.)
- Duty: must protect trespasser from Known, Man-Made Death Traps
(a) Known = possessor has prior knowledge
(b) Man-Made = condition is artificial (e.g. NOT ice patches)
(c) Death = highly dangerous condition
(d) Trap = condition concealed or hidden (i.e. latent defect)

3. Licensee - KNOWN TRAPS
- Entrant: those who enter land with permission but do not confer any economic benefit on possessor
(e.g. social guest, girl scouts selling cookies at your door)
- Duty: must protect licensee from known traps.

4. Invitees - REASONABLY KNOWABLE TRAPS
- Entrant: those who enter land with permission and do confer economic benefit on possessor, OR the property is open to the public at large
- Duty: must protect invitees from all reasonable knowable traps.
("reasonably knowable" - possessor could have discovered the condition with reasonable inspection)

EXCEPTION: Attractive Nuisance Doctrine
- Applies where possessor's land is likely to be trespassed upon by children, AND there is something on his property that is especially appealing to children. Possessor owes the child reasonable prudence in protecting them from the condition.

DEFENSE - IN ANY CASE, YOU AVOID LIABILITY IF YOU EITHER (A) FIX THE PROBLEM AS SOON AS YOU KNOW ABOUT IT, OR (B) GIVE A WARNING.
Definition: plaintiff's negligence contributed to her injuries.

Rule: completely bars plaintiff's right to recovery (common law. Now, most jurisdictions follow Comparative Negligence)

Exception: Last Clear Chance
Rule: The person with the last clear chance to avoid an accident and fails to do so is liable for negligence.
(Thus, even if plaintiff was contributorily negligent, if she was not the person with the last clear chance then she may still recover)
Caveats:
(a) Helpless Peril - if plaintiff is in helpless peril, defendant will be liable if he knew or should have known of plaintiff's predicament
(b) Inattentive Peril - if plaintiff could have extricated herself if she was paying attention, then defendant is only liable if he actually knew of plaintiff's predicament
(c) Prior Negligence Cases - defendant must have been able, but failed, to avoid harming plaintiff at the time of the accident. If defendant's only negligence occurred earlier, the doctrine will not apply.

Imputed Contributory Negligence: the contributory negligence of a third party will be imputed to a plaintiff and bar her claim only when the relationship between the third party and plaintiff is such that the court could find plaintiff vicariously liable for the third party's negligence (e.g. employer-employee, principal-agent). No imputing of negligence between parent-child, husband-wife, car owner-car driver.

Available as a defense to defendant's violation of a statute UNLESS statute was designed to protect this class of plaintiffs from their incapacity and lack of judgment.
(e.g. child runs into street in school zone and gets hit by speeding car).

NOT available as a defense to intentional torts.
Prima Facie Case:
1. The nature of defendant's activity imposes an absolutely duty to make safe
2. The dangerous aspect of the activity was the actual and proximate cause of the plaintiff's injury
3. plaintiff suffered damage to her person or property.

Specific Liability Examples:
1. For reasonably foreseeable damage done by a trespass of one's animal onto another's property
2. Injuries caused by wild animals to invitees and licensees, regardless of whether the wild animal is a "pet"
3. Injuries caused by domestic animals ONLY IF owner had knowledge of the animal's dangerous propensities that are not common to the species. Not strictly liable if the action is characteristic of its species (e.g. bee sting)
4. Abnormally Dangerous Activities: (a) the activity created a foreseeable risk of serious harm even when reasonable care is exercised by all actors, AND (b) the activity is not a matter of common usage in the community.

Extent of Liability:
- Trick Question - Remember that NO AMOUNT OF REASONABLE CARE exercised by the defendant can absolve him of liability in strict liability cases.
- The injury must be caused by the dangerous aspect of the activity in order for strict liability to apply. E.g. dynamite-filled truck blows a tire and hits a pedestrian, but no dynamite explodes = regular negligence rules apply)

Defenses:
- Assumption of Risk = good defense
- Contributory negligence is no defense if plaintiff has failed to realize the danger or guard against it. It is a defense if plaintiff knew of the danger and his unreasonable conduct was the very cause of the harm.