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Defamation: - Was statement false? Was it published? Do you need to prove special damages? (specific) -Per Se?

(1) Criminal conduct (2) Implying bad business (3) Sexual Misconduct (4)Disease -Is the harm caused obvious on its face? (also per se) -General harm: apportioned by jury based on what they think you deserve -Is this an opinion? (provable, good/bad words) -Does opinion imply privately known facts? Does it show facts that opinion is based on? -Is it obvious parody? (not even believable) -Was it published to a third party? -Was publication absolutely privileged? (court, spouse, attorney) -Was publication qualified privilege? No actual malice involved. (special social, morale, legal obligation/no excessive publication/no actual malice/objective, reasonable to believe) -Is the P a public official? Was actual malice involved? (reckless disregard for the truth) -Is the P a public figure? Was there negligence in regards to truth? -If public figure? Was actual malice involved. If so, can recover punitive damages.

Duty of Property Owners: -Original classification system is outdated, unable to differentiate anymore (Rowland) -Moving towards negligence system. (no one is less entitled to due care because of property status) __________________________________________________________________________________________________________________________________ Invitee: you and owner have joint interest. Usually business related. -Owed utmost care, duty to warn about concealed/hidden dangers __________________________________________________________________________________________________________________________________ Licensee: someone you allow on your property (regular person guest, you implicitly allow by not forcing off) -Duty to warn of concealed, hidden dangers ___________________________________________________________________________________________________________________________________ Trespasser: someone you have no interest in being on land, made effort to keep them out -No duty except to not willfully/wantonly hurt them __________________________________________________________________________________________________________________________________ Attractive Nuisance Doctrine -Infant trespassers can recover when lured onto Ds premises by some tempting condition D created/maintained

Defenses: Comparative Negligence -Was Ps negligence part of the cause of injury? -Some jurisdictions 50% CN, no recovery ________________________________________________________________________________________________________ Self Defense: -Was Ds response to proportional? -Did D deliberately kill or try to inflict gross bodily harm upon P? (Katko) -Did D set a trap for P? ________________________________________________________________________________________________________ Assumption of Risk: -Did P KNOWINGLY and willingly assume the risks at issue? (primary) (no recovery) -Does P enter a known risk imposed by Ds breach of conduct? (secondary) (CN) -Was the specific risk known to the D the one that caused the injury? -Was P in best place to make individual cost/benefit analysis? _______________________________________________________________________________________________________ Necessity: -Was risk to person/society worth more than your property? (public ) (may not recover) -Did P use your property for private necessity? (must pay you back) (Lake Erie) -Was P forced to use your land by necessity that he did not cause? (Putnam) ________________________________________________________________________________________________________ Consent: -Did P acknowledge that she was aware of the risks and would not sue? -Was P actually aware of the risks involved -Was D in a better position to know the risk involved? Privacy: -Intrusion Upon Seclusion- Was method used unreasonably invasive? AND -Was info sought confidential in nature (not available thru normal inquiry/observation) -Private Disclosure Private Facts- one gives publicity to private facts that would be (1) highly offensive to reasonable person (2) not of public interest -False Light- One who gives publicity to a matter that places him in a false public light if (1)false light placed in would be highly offensive to reasonable person (2) person acted intentionally or recklessly as to publicized matter and its likely perception. Emotional Distress: -Was the risk to P foreseeable? 1. Proximity to acc. 2. Relation to victim 3. Directness of harm (Legg) -3RST: Can recover in cases where course of activities/relationships likely to cause ED. -Foreseeability is what make these actions negligent -Ex. doctors wrongful STD diagnoses. Other cases of professional misconduct.

Proximate Cause: -Was Ds action a substantial in bringing about Ps injury? (Andrews in Palsgraf) -Was it a but for cause? -Was Ps harm the result of what made Ds conduct tortious? Palsgraf -Was the victim in the class of persons who could have been foreseeably harmed? (Harm within the risk) Palsgraf ___________________________________________________________________________________________________________________________________ -Was Ds injury foreseeable? (only liable for foreseeable harms b/c being careful wouldnt have helped you) -Forward Looking Approach- Was chain of events natural, probable, foreseeable at time D committed action? -Directness Approach- Start with injury and move backward and see if third party/act of god severs chain. ___________________________________________________________________________________________________________________________________ -Intervening action by third party (esp. criminal) can break causal chain unless this intervention is what made act negligent in the first place

Nuisance: -Is your action preventing someone else from use and enjoyment of their land? -Is the action unlawful? -Was nuisance intentional? RST: 1. Acts for purpose of causing it 2. Either knows it is/ or probably will result from conduct -Was it unreasonable? RST: Gravity of harm outweighs utility of creating it -If intentional/unreasonable-SL, if not- negligence -Should this be solved a better way? Ie. Zoning law. (Fountainbleu) -Is P of ordinary sensibility? -Who could solve this problem more easily (least cost avoider) -Did you assume the risk by buying property? (got it at a discounted price) -Did you come to the nuisance? -Is this a public harm? (Did P suffer individual, peculiar harm) (If not, cant recover) -If beneficial activity but a nuisance, court can order compensation for continuing nuisance w/o injunction (Atlantic Cement) -Duty over actions of guests (Bealieu)

Vicarious Liability: (SL) -Did D have a right/duty to restrict activities of violator? -Was negligent act of employee within scope of business? (Done to help master) Strict liability, Resondeat Sup.) -Was action by employee authorized or connected to an authorization by employer? (Can be liable for mere detours) -Did employee control the manner, means, and planning of service provided? Ind. Contractor. -Was this a non-delegable duty? -RST: NDD= Owner will be liable for the contractor's negligence in the performance of a work "involving special danger to others which employer knows or has reason to know to be inherent in or normal to the work -Was the agency in question implying authority? (Petrovich)

INTENTIONAL TORTS: -D intended to commit the act (doesnt mean he intended for damage to happen) -D can recover for even unforeseen harm in an intentional tort -Was act wrongful? -Was the act the proximate cause? -Defenses: Assumption of risk, CONSENT, self-defense, necessity NEGLIGENCE: -Governed by reciprocity principle. (What goes around comes around) -Use negligence when we want you to do something, we just want you to be careful -Must show DUTY, BREACH, CAUSATION, DAMAGES -Did P owe D a duty to conform his conduct to avoid unnecessary risk to others? -Did Ps conduct by act or omission fall short of the standard of care? (reasonableness) -Was Ps action the proximate cause of Ds harm? -Did P expose D to unnecessary/substantial risk? -How would a REASONABLE/ORDINARY person have acted in that position? _____________________________________________________________________________________________________ Per Se: -Is there a statute that says that this activity was negligent? -Is this the class of persons protected under the statute? -Was this the type of harm the statute was enacted to protect against? -Did intervening conduct by third party (esp. criminal) sever causal chain? -WAS THE POSSIBILITY THAT A THIRD PARTY MIGHT INTERVENE THE REASON IT WAS NEGLIGENT? (then causal chain not broken) ____________________________________________________________________________________________________ Res Ipsa Loquitur: -RST (2) TWO CONDITIONS: -1. Is this the type of harm usually caused by negligence? -2. Did D have exclusivity of control over the situation? -Is P in a situation where he cant acquire evidence to determine exactly what happened? -Is P in position to determine exactly who committed the crime against him? -Can D show that something other than negligence caused the damage? ____________________________________________________________________________________________________ Calculus of Risk: -If the harm could be avoided for less than the cost of the harm, the precautions shouldve been taken. -P(probability of loss) x L (gravity of loss) must be greater than B (burden of precautions) to create a duty. -Rational, cost-minimizing individual will not spend more on precautionary measures than the harm that they prevent. ___________________________________________________________________________________________________ Custom: -What is the typical standard of care in the industry? -3rd RST: Following custom is evidence of no negligence but doesnt bar neg. conviction -Is it possible that lagging behind is self-interested way of avoiding caution? -Should we hold you accountable to your own heightened rules? (usually yes) -Were people relying on your increased criteria? -Was your increased criteria the reason you were chosen to do business with? -MEDICAL PROFESSION ESTABLISHES ITS OWN STANDARDS OF CARE ____________________________________________________________________________________________ Damages: (no only liable for foreseeable harms) -Defendant liable for all damages resulting from negligence (Polemis) -Must take D as you find him if foreseeable (Vosburg)

STRICT LIABILITY: -Imposition of liability without showing of negligence or intent -P only needs to show that the tort happened -Would this activity be considered inherently dangerous to members of the community? -Does this activity have the potential to be dangerous even if all precautions are taken? -Is this the appropriate location for the activity? -Is this an activity whos activity level we want to restrict? (cost-internalization) -Is this is a complicated situation where a jury would have a very difficult situation determining if you were negligent? -Is this is a common activity or use? -Is this activity creating a positive externality that you cannot tap into? (reason against SL) -Would imposing SL incentivize you to do this more safely? -Are you abusing reciprocity by exposing everyone else to this? -Was this the proximate cause? -Defenses: Assumption of risk, Comparative Negligence (products liability), Necessity DANGEROUS ANIMALS, BLASTING, PRODUCTS, NUISANCE

PRODUCTS LIABILITY: -Is the possibility of injury probable? -Was the seller engaged in the business of selling? -Governed by strict liability but buyer negligence can defray the damage award -Often third party will act negligently and increase danger. Should this have been reasonably expected? ______________________________________________________________________________________________________________________________________ Manufacturing Defect: -Is this the type of product that would dangerous if negligently made? Is yes, there is a duty. -Was the product different from the intended design? -Was the defect what made the product more dangerous to you? -Is the defect the result of poor materials/shoddy workmanship? -Accidents inevitable no matter what you do, internalize/disperse cost to control activity level _______________________________________________________________________________________________________________________________________ Design Defect: -Was the injury foreseeable (probable) based on the design of the product? -Does the design of this product make it inherently dangerous no matter how much care was taken? -Does the product fail the consumer expectation test? (Is it more dangerous than consumer expected) -Does the product fail the risk utility test? (Could it have feasibly been made more safely) -Does the risk posed by the product outweigh its benefits? _______________________________________________________________________________________________________________________________________ Duty to Warn: -Is there a non-obvious risk that could be mitigated with a warning? -Are you marketing directly to the customer? -Was the warning comprehensible to the average person? (blood clot/stroke case) -Did the product meet appropriate standards at the time it was made? (state-of-the-art) -Even if it did, should the producer have known about the probable dangers? (producers are held to be experts in field) ________________________________________________________________________________________________________________________________________ Defenses: -Did you know exactly what you were getting? (assumption of risk) -There was choice in the market, you made decision -Product Misuse (negligence) -Unable to show better design? -Risk was open and obvious

Special Relationship: -Was there a duty to protect someone from causing harm to someone/himself? -Was there a duty to protect a third person from another person? [Landlord/Tenant, Kline] [Dr. Tarasoff] -Was the damage foreseeable?

Gratuitous Undertaking: -Has a promise been made? With consideration? (contractual issue) -Has D commence action on a promise? (must give reasonable care) [Thorne, Montgomery] - Is person worse off than before you started helping? -Was harm caused by reliance on Ds promise? (promissory estoppel) [Erie RR, Thorne] -If you put someone in harm, must save them