Find study materials for any course. Check these out:
Browse by school
Make your own
To login with Google, please enable popups
To login with Google, please enable popups
Don’t have an account?
To signup with Google, please enable popups
To signup with Google, please enable popups
Sign up withor
1. The extreme or hypersensitivity of plaintiff is IGNORED in deciding whether P has a CoA: Assume dealing with an average person.
2. NO Incapacity Defenses in intentional torts --> referring to categories of people who lack the ability to act in other areas of the law, i.e. children, mentallydisabled, etc.
3. Transferred Intent: If one of the five major trespass torts (battery, assault, false imprisonment, trespass to land, trespass to chattels) can transfer intent: same tort/different person; different tort/same person ,different tort/different person.
1) Defendant must commit a harmful or offensive contact
2) The contact must be with the plaintiff’s person
1. Harmful: A contact is harmful if it impairs the condition of your body
2. Offensive: Contact is offensive if it is unpermitted by a person of ordinary sensitivity
a. Test: Would a normal person be ok with this touching?
1. P’s body
2. Anything that is connected to P: Anything P is holding or touching is a part of plaintiff’s person as a matter of law.
a. Note:It has to be connected. It is irrelevant whether the item is an intimate item
1) Defendant must place the plaintiff in reasonable apprehension
2) Of an immediate battery
1. Apprehension = KNOWLEDGE (fear not needed)
2. Reasonable apprehension: An apparent ability creates a reasonable apprehension
a. Unloaded gun problem: D threatens a battery, but has no present ability to commit a battery. Focus is on PLAINTIFF’S knowledge -->if unaware that gun is unloaded, it is reasonable to think that a gun pointed in your direction MIGHT be loaded, can recover for assault.
1) The defendant commits an act of restraint
2) Plaintiff is confined in a bounded area
1. Threats are sufficient --> physical restraint not required
a. Hypersensitivity not taken into account
b. Test: The threat must be one that would operate in the mind of a normal person
2. Omissions/failure to act: Can be an act of restraint, but ONLY if there has been a preexisting duty between plaintiff and defendant
3. Knowledge by P required: An act of restraint only counts if the P knows of it OR is harmed by it, otherwise, no recovery
2. “Reasonable”: If the means of escape is dangerous, disgusting, humiliating or hidden, NOT a reasonable means of escape, and P has a valid claim for false imprisonment.
3. Hidden:If a reasonable means of escape is not reasonably discoverable (i.e. hidden staircase), then P IS confined.
1) Defendant must engage in outrageous conduct
2) P must suffer severe emotional distress
reckless or intentional conduct will show fault element
1. Definition: Conduct is defined as outrageous if it exceeds all bounds of decency tolerated in a civilized society.
2. Two Negative Rules
1.Mere insults are NOT outrageous
2. Conduct protected by the 1st Am is NOT outrageous: Snyder v. Phelps
3. Indicators of Outrageous Behavior: (not certain markers, but can make a bad case worse)
a. The conduct is continuous or repetitive in nature: Mere repetition of something that standing alone would not be outrageous, can be outrageous
b. Defendant is a common carrier or innkeeper: Owe customers a duty of courtesy
c. Plaintiff is a member of a fragile class of persons: Targeting someone w/ external attributes of fragility could label conduct outrageous
1. Young children
2. The elderly
3. Pregnant women
- Special Knowledge about plaintiff: If the defendant knows that plaintiff is particularly upset by something and does that thing anyway, that is also considered outrageous
1. Proof of distress: Plaintiff does not have to introduce any particular form of evidence to prove the distress.
2. Exam Tip: When the examiners test on this element, they negate the element in the body of the question, but do it subtly --> “P was mildly annoyed by this conduct” or “momentarily irritated,” “briefly put upon,” or “mildly chagrined.” -->negates this CoA.
1) The defendant must commit an act of physical invasion
2) That act must interfere w/ P’s possession of land.
Special rule: A trespass is privileged if you are entering someone else’s property to reclaim your own property from a wrongdoer
1) Enter the propertya. Knowledge of trespass by D NOT required: D need not know that he crossed the boundary line.
Intent is satisfied by putting one foot (or tire, or horseshoe, etc.) in front of the other going to that location.
2) Throw something onto the land
a. Rule: The thing thrown onto the land has to be PHYSICAL or TANGIBLE in nature.
b. Intangible invasions are not a trespass
1. Important Principle: Right of possession includes not just the surface of property, BUT the air above, and the surface below, but only out to a reasonable distance.
a. Consequence:Airlines don’t trespass when plane flies above your property, but boy who throws ball over it does
1. BOTH deal with an intentional interference with personal property
2. Personal property: Everything you own other than land and buildings (including currency)
a. ALSO includes electronic files or data
3.Interference: A defendant can interfere w/ personal property in one of 2 ways:
1) Deliberately damage that item: Bend it, break it, scratch it, crush it
2) Deprive you of possession (steal it)
a. Significant: CONVERSION
1. Usually, a 50% of more reduction in value will put you in conversion world
b. Relatively minor: Trespass to chattels
c. Reason for division: In order to give conversion victims a special remedy
1. Conversion: P entitled to fair market value of item, and D keeps the chattel (forced sale)
a. Legal capacity to consent required: If defendant wants to invoke consent as a defense, PLAINTIFF must have legal capacity, bc only a person with legal capacity can give a valid consent
1. Children:Not totally disabled from consent, but can give consent to age appropriate invasions (i.e. two 11 year old boys can agree to wrestle)
Two types: Express and implied
Scope: If D exceeded the scope of consent, he goes back into a position of tort liabilty
- Medical consent: If you consent to surgery on one part of the body, the doctor exceeds the scope of consent by operating on a remote part of the body
An explicit declaration, usually spoken, but sometimes written, giving the D permission to behave in a way that would otherwise by a tort.
a. Fraud or duress: Express consent is ignored if it was obtained through fraud or duress. (one-night-stand STD cases --> guilty of battery, and no consent defense).
a. Consent implied by custom: If a P goes to a place or participates in an activity where certain invasions are routine, that P is considered to consent to those invasions. (i.e. sports,barber shop)
b. Implied consent based on the defendant’s reasonable interpretation of plaintiff’s objective conduct and other surrounding circumstances (aka Body language consent): We are entitled to rely on what we see and what we hear and rely on social conventions and norms in acting reasonably. Vaccine case
1. Proper Timing: The defendant isresponding to a threat which is in progress right this minute, or is imminentlyabout to occur
a. D must be acting in the heat of themoment
b. NO REVENGE: if the threat is over anddone w/, no longer have a privilege to act
2. D must have a reasonable beliefthat the threat is genuine
a. Reasonable mistake will NOT destroy the privilege. Still a defense if you misread the situation
Merchants detaining suspected shoplifters are protected from false imprisonment liability if they have a reasonable belief that the person is shoplifting.
1. Maryland: A shopkeeper or his agent may, w/oincurring civil liability, detain a person against his will if the shopkeeper has probable cause to believe that the person committed the crime of theft. “Probable cause” is tested as of the time of detention.
2. General Rule: Limited to the force necessary under the circumstances -->rule of proportionality.
a. Deadly force: If you find yourself in a life-threatening situation, or encounter a third party in a life-threatening situation, you can use deadly force.1. MD Distinction: In MD, you are obligated to retreat before using deadly force if you can. You do not have to retreat w/in your own home
a. Public Necessity: A public necessity scenario is one where D invades the plaintiff’s property in an emergency to protect the community as a whole, or a significant group of people. ABSOLUTE DEFENSE
b. Private Necessity: D invades P’s property in an emergency to protect an interest of his own
1) D remains liable for actual harm to the property --> compensatory damages
2) No liability for nominal or punitive damages
3) As long as the emergency continues, the plaintiff property owner must tolerate the presence of the trespasser until the emergency is over
1) Defendant must make a defamatory statement that specifically identifies the plaintiff
2) There must be a “publication” of that statement
3) There must be damages (can be presumed sometimes)
a. Defamatory Statement: A statement is defamatory if it tends to adversely affect reputation
1. Namecalling NOT defamatory
2. Typical defamatory statement takes the form of an assertion of fact that reflects negatively on a trait of character
b. Statement must specifically identify Plaintiff
1.NEED not use P’s name if P can be identified by other characteristics
2. Groups: Small group: everyone in the group has a claim; Big group: no one has a claim
Living plaintiff required
a. Definition: Disclosure to someone other than the plaintiff
b. Minimum: In order to get to the jury, plaintiff needs to show ONLY that the statement was shared with one other person besides the plaintiff -->enough to be a publication.
c. Negligent publication is ENOUGH: need not be intentional
1. Libel cases: A libel case is any case where the defamatory statement is written down, or otherwise captured in a permanent format (i.e. taped, filmed, etc.)
a. In a libel case, damages are presumed: P does not have to offer evidence of damage to get to the jury
b. Two element case: Prove defamatory statement + publication to get to the juryc. Maryland Distinction: All libels are actionable w/ pleading special damages. However, a plaintiff must plead "actual injury" (damages will not be presumed)
Oral or spoken defamation
a. Slander per se: Treated the same as libel --> creates presumed damages. Any slander that falls into 4 specific categories(closed list)
b. Not slander per se: P must actually offer evidence of damage to get to the jury.
1. Damage= economic harm: got fired from job, contract fell through, revenues down
2. If you have economic harm, can recover for emotional harm as well
1. A spoken statement relating to the P’s business or profession will be slander per se
2. A statement that P committed a crime of moral turpitude (a very serious crime)
a. Any crime involving dishonesty
b.Most crimes of violence
3. A statement imputing unchastity to a woman
a. Unchastity = sexually active as an unmarried person
4. A statement that the plaintiff suffers from a loathsome disease. Two:
b. Venereal disease
5. MD Distinction: MD does NOT permit presumed damages for slander per se.
a.D will bear the burden of proof
3. Privileges: see separate card
1) Absolute Privileges: Based on WHO is speaking
a. Spouse: If a married person is conversing with his or her spouse, that conversation cannot be the basis of a defamation lawsuit.b. Officers of the 3 branches of government in the conduct of their official work
1. Judicial Branch: Privilege covers not just the judge, but lawyers and witnesses as well.
c. Media entities “fair reporting privilege”: Allows them to repeat what was said at public proceedings with absolute immunity so long as factually accurate
1. Maryland: Not limited to media entities: The fair reporting privilege can protect out of court statements made by a witness regarding his in-court testimony. The out of court statement must be a fair and substantially accurate report of the in-court testimony
Arises in any situation where there is a public interest in encouraging candor. Decided on an ad hoc, case by case basis.
Qualified: D must observe two conditions in order to retain the privilege:
1. Must have a good faith belief that the statement made is truthful: Must be an honest mistake
2. Must confine yourself to matters that are relevant: If interject irrelevances, lose the privilege
If the subject of the defamatory statement is a matter of public concern, courts make it harder for the Plaintiff to win, by insisting on proof of some extra elements: Falsity and Fault
a. Falsity: P will have the burden of proving that the statement that was made was inaccurate as part of its casein chief
b. Fault: Statement was made other than in good faith
1. Public figure, public concern case: Statement was made deliberately or recklessly (actual malice)
2. Private figure, public concern: Sufficient to show simple negligence
MD: EVERY defamation plaintiff must prove fault AND falsity
D uses P’s name or picture for commercial purposes
1. Newsworthiness exception: If Sports Illustrated puts Tom Brady on cover of magazine, not liable for a tort even though do it for commercial gain2. Not limited to celebrities: Have a CoA if someone uses YOUR image for commercial gain
An invasion of plaintiff’s seclusion in a way highly offensive to an average person
1. Example: Wiretapping, covert video surveillance, interception of electronic communications, listening at keyhole, peering in through windows
2. Exam caution: MUST be in a place where you have an expectation of privacy, i.e.can’t complain ab someone taking your photo while walking down street
Falsehood: Can be, but doesn’t have to be defamatoryDifference: Damages
1. Defamation: economic damages
2. False light: dignitary damages
Maryland: Widespread dissemination must be really widespread
1. Internal doc w/in corporation not widespread enough even though a lot of people w/ org saw it
Widespread dissemination of confidential information about plaintiff highly offensive to an average person
1. Note: Unlike defamation and false light, which deal with falsehood, this tort deals with truthful information, but truthful information is intimate and sensitive, and of a type would not like to be widely shared
Newsworthiness Exception: It is a tort if WaPo chose to publish your medical records, but NOT a tort to publish Mitt Romney's
Underlying facts have to be truly private: Quasi-private facts not protected
1. Consent: A defense to all 4 privacy torts
2. Defamation privileges will be defenses to false light and disclosure
a. Factual cause
b. Proximate cause
a. Rule: I have an obligation to take risk-reducing precautions as I engage in various activities
b.Beneficiaries of these precautions
1. Rule: The duty is owed to foreseeable victims, and ONLY foreseeable victimsa. Unforeseeable victims ALWAYS LOSE: Unforeseeable victims are victims that were OUTSIDE the zone of danger
a. Rule: You must exercise the amount of care that would be exercised by a hypothetical reasonably prudent person (RPP) acting under similar circumstances
1. Applies automatically in all negligence cases UNLESS displaced by a more specific rule
2. D’s conduct is compared to the conduct of a reasonably prudent person: NO allowances are made for D’s personal attributes or shortcomings.
- Objective standard: Applies to everyone equally without variation and w/ no flexibility
a. Superior Skill or Knowledge: Will be held to the standard of care of a reasonably prudent person w/ the superior skill or knowledge
b. Physical characteristics: If relevant, RPP with same physical characteristics
a. Mini-Rule: Children under the age of 5 owe the rest of us ZERO duty of care, and thus can NEVER be liable for negligence. IMMUNE.
b. Standard of care: These children owe the rest of the world the care of a hypothetical child of similar age, experience,and intelligence acting under similar circumstances (children 5-18).
c. Exception:If a child is engaged in an adult activity, special standard of care is not used, rather RPP standard is used.
1. Adult Activity: Operating a motorized vehicle, i.e. farm equipment, recreational vehicles
1. RS of Torts: A professional is required to exercise the skill and knowledge normally possessed by members of that profession in good standing in similar communities.
2. Summary:Professionals should exercise the care of average members of his profession in similar communities.
- Empirical standard: Custom of the profession sets the standard of care
- Similar communities
1. Locality Rule: Traditional rule compared big city doctors to other big city doctors and small town doctors to small town doctors
2. MD Rule: Does not follow the locality rule; Will be held to the same standard of common practice
In MD, before you can commence a medical malpractice claim, have to include w/ a complaint an expert’s certificate. Get a doctor to vouch for the validity of your claim in a piece of paper. If omitted, complaint will be dismissed w/ prejudice.
Someone who enters property w/o permission, and without the possessor’s knowledge
a.Duty: NO duty of care. Undiscovered trespassers ALWAYS LOSE
a. Bar tip: A possessor of land should anticipate trespassers when there has been trespassing in the past.
Summary of Duty: A possessor must protect a discovered trespasser only from known, man-made death traps on the land
Enter land w/permission. but do not confer any economic benefit on the property
a. Examples:Social guests, solicitors (girl scouts, religious people, politicians canvassing)
Summary of Duty: Possessor has to protect the licensee from all known traps on the property (not just deadly, man-made)
Someone who enters property not as a social guest, but for his own convenience (i.e. solicitors) or come onto your property for THEIR recreational purposes
1. Rule: Bare licenses are owed the same duty of care a discovered trespassers
2. Duty of Care: Possessor must protected a bare licensee only from known, man-made death traps on the land
Enter w/ permissionand confer economic benefit on thepossessor, or enters land that is generally open to the public
a. Examples: Mall, supermarkets,barber, airport, free museum, places of worship.
Summary of Duty: The possessor mustprotect from all reasonably knowable traps on the land
Cannot recover for injury that is an inherent risk of their job when on another’s land
a. MD:Not limited to premises cases --> Will bar recovery for firefighters regardless of where it occurs.
Entitled to the RPP standard with regard to artificial conditions on land.
a. Attractive nuisance doctrine: When there is something on your property that attracts children (i.e. a swingset), thus putting you on notice that children might trespass, as a RPP, you must take steps to make your property safe.
b. Note: No requirement that the child be injured by the thing that attracted him.
c. MD Distinction: Treats trespassing children identically to trespassing adults. No attractive nuisance doctrine
1) Fix the problem,eliminate the hazard
2) Give a warning: Warnings satisfy duties (wet floor signs)
Available when: P satisfies the following:
1) P must show he is a member of the class of persons that the statute is trying to protect
2) P must show that the accident is in the class of risks that the statute was trying to prevent.
Result: If P satisfies the class of person, class of risk test, the criminal statute will become the duty in this case only.
a. Violation is a breach per se
b. Plaintiff must prove causation & damages
c. If statute does not apply: Apply RPP standard of care
MD Distinction: If a statute meets the 2 part test, violation is NOT negligence per se, it is some evidence of negligence
1. If statutory compliance would have been more dangerous than statutory violation, we will not borrow the statutea. Swerve to avoid kid, hit someone else
2.Compliance was impossible under the circumstances
a. Have heart attack while driving car
NO DUTY to rescue a stranger in peril
a. Preexisting relationship triggers a duty to rescue, i.e. innkeeper/guest,common carrier/passenger, friendships/other informal relationships
b. Defendant caused the peril: If D put P in a position of peril in the first place (need not be negligent), then D has a duty act reasonably under the circumstances to aid the party in peril (need not put own life in peril)
c. Duty to Warn: Tarasoff: Duty to warn/call the cops if you know someone has a propensity to commit violent acts
d. Voluntary Rescue: If you choose to assist a stranger, must act reasonably, prudently
1. MBE: Assume there is no statute
2. MD Statute: Does not protect all rescuers,, but rather only protects specific occupational categories --> professional caregivers
a. Doctors and nurses
b. Firefighters, police officers, and EMTs
c. The ski patrol
Defendant acts negligently, but there was no infliction of any trauma on the body of P. Recovery permitted in three cases
1) Near miss cases
2) Bystander cases
3) Relationship Cases
Physical manifestation of of distress required: Physical symptoms are required to recover for NIED
1. Mishandling of bodies
2. False death reports
a. Can’t recover if outside the zone of danger.
b. HAVE TO ALSO SHOW: Subsequent physical manifestations of the distress in order to recover
1. Physical manifestation: Something we can observe2. Subsequent: right after, days after
Negligent defendant will actually injure someone, X, who is not involved in the case. X is badly injured or killed, and as a result, P is emotionally upset.
1. Distressed P and X must be close family members: spouse, parent, and child good enough in just ab every jx
2. P must see the injuries to X as they occur: Must be physically present and watch it as it occurs
1. Faulty conduct: Can be an affirmative act that D committed, or an omission2. Essay: Not enough to show faulty conduct, must also give a reason.
Used by P when the plaintiff cannot pinpoint exactly what the defendant did wrong
a. Two Prongs
1. Show that the accident that occurred is of a type normally associated with negligence
a. Normally: Ordinarily, this accident would not have happened unless someone was negligent
2. An accident of this type is normally due to the negligence of someone in D’s position
a. D must have had control over the injury causing object
1. If prongs are not met, and P cannot show evidence of D’s negligence, a motion for a directed verdict for D may be granted.
1. In writing, must also speak of the breach as the factual cause, and never speak of the defendant as the factual cause
2. When speak of factual cause, do NOT use the word: THE. SAY: The breach was A factual cause of the injury.b. Test: But for test: But for the breach, plaintiff would be uninjured today
a. Test: Ask whether each of the breaches was a substantial factor
1. A breach is a substantial factor if it COULD have produced the entire harm all by itself
2. If both are substantial factors, we hold the Ds jointly liable
Multiple Ds, all were negligent, but only one’s negligence caused the harm, and it cannot be established whose negligence caused the injury.
a.Burden of proof shifts to each D to prove he did not cause the injury
Every ACT has an infinite number of consequences. PC is where we require the plaintiff to demonstrate that imposing liability on D is fair.
a. Rule: To demonstrate that imposing liability would be fair, plaintiff must show that his injury was a reasonably foreseeable consequence of the breach.
1. On essay, if obvious write: “The injuries to P are self-evidently foreseeable here, so there are no proximate cause issues.”
b. Two Types of Proximate Cause Issues
1. Direct Cause Questions
2. Indirect Cause Problems
D commits the breach and then bam, P suffers the injury, nothing in the middle. Almost always fair to hold D liable and consequences almost always fx.
a. Rule:In a direct cause case, should only ccl that liability is unfair if the results can only be characterized as freakish and bizarre. Foreseeable that someone would be injured, but type of injury not fx (Palsgraf)
D commits a breach,and thereafter, some additional events occur. Only after the ccl of the additional events, does the P suffer the full injury. In these cases, certain scenarios have come up over an over again: PRECEDENT. The well-settled quartet: Cts hold that outcome is fx, liability is fair, and P wins.
1) Intervening medical negligence
2) Intervening negligent rescue
3) Intervening protection or reaction forces: If D creates a dangerous situation, it is foreseeable that people will panic to protect themselves and make the situation worse
4) Subsequent Disease or Accident: Fx that if you leave someone in a vulnerable state, they will incur further injury
On essay: Ask why you are calling the breach a breach? What am I afraid might happen through this conduct? Then look at what happened: If it is a match, there is fairness and fx
1. Personal injury
a. MD: Has a cap on non economic damages
4. Eggshell Skull Principle: Once D has committed the other elements of the tort, defendant is liable for all damage suffered by the plaintiff even if it is surprisingly great in scope.
a. Short version: Take your P as you find your P.
b. Applies to EVERY TORT on the bar
1. Rule: In MD, if a plaintiff is careless, and fails to take care for his own safety, that P is barred from any recovery.
Last Clear Chance Doctrine: . In a last clear chance scenario, first D will be negligent in a way that creates a dangerous situation. Then P will be careless for his own safety. Then D could still avoid harm but blows it. D's negligence is subsequent to P's contributory negligence.
P knew and appreciated the risk of negligent conduct, and chose to encounter that conduct voluntarily. Absolute bar to recovery.
Treats P’s carelessness, or assumption of the risk as a reason to reduce recovery,NOT an absolute bar.
1. In the MBE world, the jury will be instructed to assign % to P and D reflecting their degree of fault, and P’s recovery will be reduced based on the percentages.2. Two kinds
1. Domesticated animals: House pets and farm animals
a. On bar: Dog bite cases
b. Rule: You are not strictly liable if your domesticated animal injures another person, UNLESS you have knowledge of your animal’s dangerous/vicious propensities -> strictly liable.
c. NEVER applied when P is a trespasser on your property
2. Wild animals: The person who keeps a wild animal is ALWAYS strictly liable. Safety precautions are irrelevant
a. Two part test
1.Creates a fx risk of serious harm even when rx care is exercised.
2.It is not a matter of common usage in the community.
b. Always applies to the following activities:
1. Blasting: See a D using explosive, SL
2. Handling toxic chemical or biological material
3. Anything involving nuclear energy or high dose radiation:not MRI, CAT scan, X-Ray, BUT nuclear reactors
Note: If someone is hurt by a product, may beable to sue on a negligence theory, or breach of warranty under the UCC (IWM,IWFPP), or a strict liability claim.Read the question: If the question mentions a specific theory of recovery, apply that theory!
a. Merchant: Someone who routinely deals in products of the type that hurt the plaintiff
b. Casual sellers are NOT merchants
c. Service providers: Someone who makes a product incidentally available in connection with a service is NOT a merchant
d. Commercial lessors ARE MERCHANTS and can be held strictly liable (i.e. rental car company)
e. Chain of distribution: Every firm in the distribution chain is a merchant and can be sued for strict liability
1. Manufacturing Defect
2. Design Defect
3. Warning Defect
A product has a manufacturing defect if it differs from all the others that came off the same assembly line in a way that makes it more dangerous than the P would expect.“One in a million”
a. RS3d: A product has a manufacturing defect if it departs from its intended design.
b. Safety precautions are no defense --> could say that D exercises utmost amount of control to prevent bad products from getting onto marketplace
A product has a design defect when there is another way that it could have been built: REASONABLE ALTERNATIVE DESIGN (RAD)
1. Risk/utility Test: Compare the design chosen with the RAD, balancing the risks and utilities of both to determine whether the the design as chosen was reasonable. Utility factors must be relevant to the risk factors
2) Consumers would not be aware of those risks
3) Product lacks adequatewarnings about those risks
Note: Not all warnings are created equal. p. 3 of instruction bookletmay not be good enough. It is always a subject of litigation whether thewarning was adequate. If a product has a design defect, it will not escape liability by slapping a warning on it. If the product can be re-designed, we want you to re-design it.
a. Presumed satisfied if the product traveled in ordinary channels of distribution.
1. If you bought it from a conventional resaler, who got it from the manufacturer, presumed satisfied
b. Up to D to give evidence of alteration
c. Second-hand products: Have to prove non-alteration
Comparative negligence model. Assigning %s. The only distinction is that it is called Comparative Responsibility
a. Used for all three categories of SL
b. Sealed Container Defense: A retailer is NOT liable for selling a defective product in a sealed contained if he didn’t alter it, and he had no knowledge of the defect, and he could not have discovered the defect by rx care.1. Insulates retailers of mass market products from liability
1. An interference w/ one’s ability to use and enjoy real estate to an unreasonable degree.
2. Commission of nuisance: Deliberate act, careless act, or no fault -->not relevant
a. About harm produced, not D’s state of mind
3. Courts try to balance interests: A D should be free to use his land as he sees fit, so long as it is in compliance w/ zoning laws, is legal. But a plaintiff should be free from being miserable, and D has no right to make adjacent pieces of land uninhabitable.
Where someone other than the active tortfeasor is held liable for the injury caused due to a special relationship
1. Employer-employee: scope of employment
2. Hiring Party/Independent Contractor: Only if if an invitee is injured by an IC on his property.
3. Automobile Owner/Automobile Driver: ONLY
if driver off on an errand for the owner of the car
MD: Presumption that anyone driving your car is doing an errand for you. Burden of proof on the car owner to disprove agency in order to avoid vicarious liability.
4. Parent-child: Parents are NOT vicariously liable for the torts of their kids
MD Statute: Imposes vicarious liability for willful and malicious injuries inflicted by children up to a cap of $10,000
1. Mult-state: Comparative Contribution: All about assignment of %s. Jury instructed to assign Ds % fault numbers. If Tom is30% to blame, Dick 20%, Harry, 50% --> if Tom pays $100K to P, can get $20K from Dick, $50K from Harry, only out $30Ka. Exceptions: D can get full indemnification:
In any case where the victim of a tort is married, the uninjured spouse also gets a separate and additional CoA in his or her own name against all available defendants. Recovery of 3 categories of damages
1) Loss of services:argument --> with my spouse injured, no one to cook, do laundry, mow the lawn
2) Loss of society:companionship. Emotional distress kind of recovery.
3) Loss of sex
Note: Any defense that can be raised against the injured spouse can also be raised against the consortium plaintiff
1. Husband-Wife: Abolished
2. Parent-child: Abrogated where conduct is intentional, or malicious, or, in the case of a motor vehicle accident, to the extent of insurance coverage
3. Governmental Immunity
a. Maryland Tort Claims Act: MD has waived immunity with respect to a tort suit brought in a Maryland state court
1. MD has also waived immunity of local government units with respect to tort actions arising from an employee's action or inaction
4. Charitable Immunity: MD retains the role of charitable immunity for charities whose assets are held in trust in furtherance of their charitable purposes
Sign up for free and study better.
Get started today!