pierceb's version from 2015-07-27 12:33



Question Answer
What are the elements to defamation?(i) a defamatory statement (that is false); (ii) "of or concerning" the plaintiff; (iii) publication to a 3rd party; and (iv) damages to the plaintiff's reputation.
What are the four exception categories to the slander per se special damages requirement?(i) impuning one's TRADE or PROFESSION; (ii) accuse plaintiff of committing a CRIME; (iii) plaintiff has a LOATHSOME DISEASE; or (iv) impute UNCHASITY to women (not in NC)
What are the two addition elements needed to prove defamation concerning a matter of public concern? (FIRST AMENDMENT consideration)(i) falsity of the defamatory language and (ii) fault on the part of the defendant (that he was negligent)
Public figure B.O.P?By clear and convincing evidence that defendant made the statement with ACTUAL MALICE.
What is actual malice?Actual malice is (i) knowledge that the statement was false or (ii) reckless disregard as to its truth or falsity.
Private person (non-public figure) in a matter of public concern B.O.P.AT LEAST negligence with respect to Defendant's knowledge of truth or falsity.
What is libel?Defamation in written form, which can be wither (i) libel per se or (ii) libel per quod.
What is "libel per se"?Libel per se is a writing that (i) is obviously defamatory; (ii) cannot be ambiguous; and (iii) is understandable without extrinsic evidence. Damages are presumed.
What is "libel per quod"?A defamatory statement that is evident only with reference to EXTRINSIC EVIDENCE, and requires showing of special damages.
What is slander?Slander is spoken defamation. A plaintiff must show special damages unless defamation constituted slander per se (4 categories).

Invasion of Privacy


Question Answer
NC: What is Appropriation?Appropriation is use of plaintiff's name or picture for "commercial advantage" WITHOUT permission. Limitation: Plaintiff's likeness must be used for advertising, promotional, or labeling purposes.
NC: What in Intrusion?Interference with a plaintiff's seclusion in a way that would be "highly offensive to a reasonable person." Limitation: Plaintiff must have "expectation of privacy" Fallback: IIED
Which two Invasion of Privacy actions are NOT recognized in North Carolina?(i) False light and (ii) Public disclosure of private facts
What is False Light (NOT IN NC)The widespread dissemination of information that is in (i) some way inaccurate AND (ii) that would be highly offensive to a reasonable person.
What is Public Disclosure of Private Facts (NOT IN NC)Widespread dissemination of "factually accurate information" that would normally be confidential, and the disclosure of which would be highly offensive to a reasonable person.
What are the defenses to Invasion of Privacy?(i) Consent; (ii) Absolute and qualified privileges (which only apply to false light and public disclosure of private facts.)

Traditional Rules of Landowners and Possessors of Land


Question Answer
What duty is owed to an "UNDISCOVERED TRESPASSER"?Activity: No Duty - Condition: No Duty
What duty is owed to a "DISCOVERED TRESPASSER"?Activity: reasonable care - Condition: Make aware or make safe artificial conditions known to the landowner that involve a risk of death or serious bodily harm. Make aware of "man-made death traps"
What duty is owed to a "LICENSEE"?Activity: reasonable care - Condition: Concealed and known to owner or occupier
What duty is owed to an "INVITEE"?Activity: reasonable care - Condition: Concealed and knew or could have learned about by reasonable inspection.
Has NC abolished licensee and invitee?Yes. NC only recognizes INVITEE.
What is a licensee?One who enters onto land with the owner's permission for her own purpose or business rather than for the owner's benefit. A friend, someone you like, a social guest.
What is an invitee?Anyone who comes onto land held open to the public at large. An invitee is a person who enters onto the premises in response to an express or implied invitation of the landowner.
If an entrant (plaintiff) is injured by an OPEN AND OBVIOUS CONDITION, who will likely prevail?The landowner. Plaintiff will almost always lose the negligence action.
How can a person lose his/her status on the land?Scope. a person will lose his status as an invitee if he exceeds the scope of the invitation—if he goes onto a portion of the property where his invitation cannot reasonably be said to extend.
Attractive Nuisance elements(i) a "DANGEROUS CONDITION" on the land that the owner KNOWS or SHOULD KNOW about; (ii) the owner KNOWS or SHOULD KNOW that "CHILDREN FREQUENT THE VICINITY" of the condition; (iii) the condition is "LIKELY TO CAUSE INJURY" to which the children cannot appreciate the risk; and (iv) the EXPENSE of REMEDYING the situation is SLIGHT compared with the magnitude of the risk.
DUTY: What is attractive nuisance doctrine?A landowner has the DUTY to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property.

Negligence (Causation)


Question Answer
The 3 tests for Actual Causation(1) But-for; (2) Joint Causes - Substantial Factor Test; and (3) Alternative Causes Approach
What is the "But for" testAct or omission is the cause in fact of an injury when the injury would not have occurred "but for" the act.
What is the "joint causes - substantial factor test" ?Several causes bring about injury, and only one alone would have been sufficient to cause the injury.
What is the Alternative Causes Approach?When there are two acts, only one which causes injury, but it is not known which one. The burden shifts to defendants, and each must show that his negligence is not the actual cause.
In NC, when may punitive damages be recovered?If: (i) defendant is liable for compensatory damages (which includes nominal damages) AND (ii) those damages are related to one of the following aggravating factors: (i) fraud; (ii) malice (a sense of personal ill will), or (iii) willful or wanton conduct.
What is willful and wanton conduct?A conscious and intentional disregard of and indiferrence to the rights and safety of tohers, which the defendant knows or should know reasonably likely to result in injury or damage (this is more than gross negligence.)
NC Good Samaritan Statute?Person who render emergency medical treatment are NOT liable for damages they cause UNLESS the damages were caused by GROSS NEGLIGENCE, WANTON CONDUCT, OR INTENTIONAL WRONGDOINGS.

Negligent Infliction of Emotional Distress (NIED)


Question Answer
What is NIED?When a defendant's negligence is deemed to have caused the plaintiff "physical harm" brought upon emotional distress. (NC-NO physical harm requirement)
What must plaintiff prove in NIED claim?That defendant was negligent in creating risk of physical injury to plaintiff.
A bystander who suffers distress from seeing injury to another must prove,(i) he is closely related to the injured person; (ii) he was present at the scene; and (iii) he observed or perceived the injury.
What is the defining characteristic between IIED and NIED? In North Carolina?For Negligent Infliction of Emotional Distress, a "PHYSICAL INJURY" is required. In NC, a PHYSICAL INJURY is NOT required in a NIED claim. // NIED, knowledge of the third party's presence is NOT AN ELEMENT.
Elements for NIED in NC?(i) defendant negligently engaged in conduct; (ii) "reasonably foreseeable" that such conduct would cause the plaintiff sever emotional distress; (iii) the conduct "IN FACT" caused severe emotion distress (any type diagnosed by a trained professional). PHYSICAL INJURY NOT required.
What are some factors to consider when determining whether the emotional distress to plaintiff was foreseeable?(i) Plaintiff's proximity to the negligent act, (ii) the relationship between the plaintiff and the injured party; and (iii) whether the plaintiff personally observed the negligent act. Knowledge of the hird party's presence is NOT AN ELEMENT of a NIED claim.



Question Answer
Elements for prima facie case of strict liability (liability without fault).(1) The "NATURE" of the defendant's activity imposes "AN ABSOLUTE DUTY TO MAKE SAFE;" (2) the "dangerous aspect" of the activity was the "ACTUAL" and "PROXIMATE" cause of the plaintiff's injury; and (3) the plaintiff suffered "DAMAGE" to person or property.
Liability for animals, general rule.One who keeps an animal and knows or should know of the animal's vicious propensities will be liable for injuries caused by that animal.
Abnormally dangerous activities?A person who carries on an abnormally dangerous or ultra-hazardous activity is subject to strict liability for harm resulting from the activity (the hazard must be associated with the harm), even if the person is careful as possible in undertaking the activity.
What are the 5 theories under which a products liability claim may be brought?(1) intent; (2) negligence; (3) strict liability; (4) implied warranties of merchantability and fitness for a particular purpose; and (5) representation theories (express warranty and misrepresentation).
Elements for a prima facie case of NEGLIGENCE in products liability(1) existence of legal duty; (2) breach; (3) actual and proximate cause; and (damages)
Elements for STRICT PRODUCTS LIABILITY(1) defendant is commercial supplier; (2) product was defective (manufacturing defect, design defect, warnings); (3) defective product was ACTUAL and PROXIMATE cause of plaintiff's injury; and (4) plaintiff suffered damages.
Who may be a merchant(commercial supplier) for strict products liability purposes?Manufactuer, retailer, assembler, or wholesaler.



Question Answer
Does strict products liability apply in North Carolina?NO! North Carolina has abolished any strict products liability. NC used the North Carolina Products Liability Act under Chapter 99B
What is the statute of limitations for a claim under NC Chapter 99B?SOL=3 years; Statute of repose= 12 years from date of purchase
What does NC Chapter 99B apply to?Applies to all plaintiffs' claims for personal injuries resulting from inter alia the manufacturing...processing---and/or selling of ANY product.
If NC does has abolished strict products liability, how can a party bring a claim for injury due to a product?Under common law negligence or breach of warranty theory under NC's adoption of the UCC... IN ADDITION TO NC Chapter 99B. Chapter 99B does not create any new independent cause of action; rather the Act sets governing parameters and limitations on all products liability actions.
How do you claim products liability under Breach of Implied Warranty of Merchantability and Fitness?Assert that (i) the goods bought and sol are subject to an implied warranty of merchantability; (ii) goods were defective at time of sale; (iii) casuation-defective nature of goods caused injury, and (iv) damages.
Who may sue under nC Chaprter 99B?Horizontal privity: buyer's family, household, and guests.
What are some defenses to a NC Chapter 99B claim?(1) SOL 3 years; (2) Statute of Respose 12 years from date of purchase; (3) sealed container, when product was acquired and sold by the seller in a sealed container, they are not liable; (4) reasonable opportunity to inspect; (5) contributory negligence; (6) alterations/modifications no consented to by manufacturer; (6) plaintiff used product in manner inconsistent with warnings; and (7) plaintiff knew of the defect.



Question Answer
What is malicious prosecution?(i) institution of criminal proceedings by plaintiff against defendant (e.g., arrest, warrant indictment); (ii) termination favorable to the plaintiff; (iii) NO probable cause; (iv) improper purpose for bringing suit (malice); and (v) damages.
What is NC Owner Occupier Doctrine?Negligence of a driver is imputed to the owner who is a PASSENGER at the time of the accident . Rationale: owner had the right to control the operation of the vehicle.
What is NC Family Purpose Doctrine?NC is a family car state. An owner is liable for members of the SAME HOUSEHOLD if the car was provided to the driver for the USE, PLEASURE, OR CONVENIENCE of the household.
Independent contract liability?Generally, there is no vicarious liability. Unless the independent contractor is engaged in a "INHERENTLY DANGEROUS ACTIVITY" or there is a public policy doctrine (non-delegable, such as duty to keep premises safe for customers)).
Parent-child liability?Generally, parents are not vicariously liable for the torts of their children. NC imposes liability on parent for up to $2,000 in damage if the child "willfully" destroys another person's property.
What is a wrongful death claim?SOL 2 years at the time of death. The next of kin may bring an action for recovery (usually in grounded in negligence). A wrongful death claim is a derivative claim, i.e., recovery is allowed only to the extent that the deceased could have recovered in the action if he has lived. Thus, any defenses that the defendant could have raised against the deceased can be raised in the WD action.
What is negligent entrustment?In an automobile setting, occurs when the owner of the car entrusts its operation to a person whom he knows or should know to be a dangerous driver, making the owner liable for the negligent operation of the automobile.
What type of immunity exists in NC?NO husband-wife immunity from tort. Parent-child immunity is recognized, thus an unemancipated minor cannot bring suit against his parents for personal injuries, UNLESS personal injury or property damages from negligent operation of a motor vehicle.
Immunity: Public Officers v. Public EmployeePublic officer: positions are created by the constitution or statute, and public employees' are not. Immunity extends to a public official being sued in his individual capacity provided that he is acting within the scope of his employment and is performing a discretionary function. Public employees, on the other hand, are always regarded as engaging in ministerial acts and therefore have no immunity.
Governmental immunity?City and county governments still maintain gov't immunity when the activity is a gov't function. If the activity giving rise to injury was a part of a proprietary function, the government may be liable. (e.g., activities of school boards are deemed to be gov't functions) This immunity is waived if the school board holds separate liability insurance.