aa_torts_20230208184416 Flashcards

Question 1

Q

Range of torts

Question 2

Q

To establish PFC for any intentional tort

Answer

A

<ol><li>Act by a defendant</li><li>Intent by a defendant</li><li>Causation of the result to the P from the D</li></ol>

Question 3

Q

You are acting intentionally if:

Answer

A

you are acting on purpose

Question 4

Q

3 basic guidelines for intentional torts

Answer

A

<ol><li>Hypersensitivity of P is ignored</li><li>No incapacity defenses</li><li>Liable under transferred intent</li></ol>

Question 5

Q

The act required is a

Answer

A

volitional movement by the D

Question 6

Q

Transferred intent doctrine applies when

Answer

A

D intends to commit a tort against one person but

<ol><li>Commits a different tort against the intended person</li><li>Commits the same tort against a different person, -OR-</li><li>Commits a different tort against a different person</li></ol>

Question 7

Q

Transferred intent applies only if:

Answer

A

Intended tort + tort that results is "ABFLC"

assault, battery, FI, trespass to land, trespass to chattel

Question 8

Q

Causation is satisfied if:

Answer

A

D's conduct was a substantial factor in bringing about P's injury

Question 9

Q

What is a tort

Answer

A

civil wrong which causes injury to a person or their property and results in legal liability.

Question 10

Q

Types of torts

Answer

A

<ol><li>intentional</li><li>based on carelessness</li><li>damaging someone's reputation</li><li>strict liability (liability based on nature of action instead of fault)</li></ol>

Question 11

Q

What are the Intentional Torts to the Person

Answer

A

<ol><li>Battery</li><li>Assault</li><li>False Imprisonment</li><li>IIED</li></ol>

Question 12

Q

PFC for battery

Answer

A

<ol><li>ACT - direct or indirect - by the D that will bring about harmful or offensive contact to the P - direct or indirect<ol><li>Contact is with P's person - anything connected to P …purse, clothing, body</li></ol></li><li>INTENT of D to bring about the harmful or offensive contact to P's person</li><li>CAUSATION</li></ol>

It is not necessary to show that the defendant intended to cause injury or harm by that contact. The contact need not be brought about by a direct application of force. It is sufficient if the defendant sets something in motion which ultimately produces unpermitted touching, such as putting poison or other deleterious ingredients in the plaintiff’s food.

Question 13

Q

What damages can be recovered for battery

Answer

A

<ol><li>actual - not necessary to show</li><li>nominal - if actual arent recovered</li><li>punitive - for malicious conduct</li></ol>

Question 14

Q

PFC for assault

Answer

A

<ol><li>ACT: D's act creates reasonable apprehension in P of immediate battery (harmful or offensive contact) to P's person<ol><li>aka fear is something that a reasonable person would foresee as being harmful to them</li></ol></li><li>INTENT to bring about this reasonable apprehension in P of an immediate battery</li><li>Causation</li></ol>

Question 15

Q

fear in regards to assault:

Answer

A

not required, P just needs to be aware that touch is imminent

Question 16

Q

What is needed to show apprehension for assault

Answer

A

P aware that touch is imminent

Question 17

Q

Is fear of imminent assault enough to establish a reasonable apprehension in P (and thus charge someone with assault)?

Answer

A

YES!

Question 18

Q

Are words enough to commit assault?

Answer

A

NO! need words + conduct!

Question 19

Q

What can words defeat in terms of assault

Answer

A

reasonable apprehension/immediacy on part of the D

ie D says I will hit you tomorrow defeats P's apprehension because act not immediate

Question 20

Q

What damages can P recover for assault

Answer

A

<ol><li>actual - not necessary to show</li><li>nominal - if actual arent recovered</li><li>punitive - for malicious conduct</li></ol>

Question 21

Q

PFC for False Imprisonment

Answer

A

<ol><li>ACT: D commits an act of constraint or refinement of P and P confined to bounded area - P aware of confinement or harmed by it</li><li>Intent to confine</li><li>Causation</li></ol>

Question 22

Q

Sufficient acts of restraint for FI include:

Answer

A

<ol><li>Physical barriers</li><li>Physical force against P, immediate fam, or personal property (ie bag)</li><li>Direct threats of force</li><li>Indirect</li><li>Indirect or implied threats of force</li><li>Failure to release the P when under legal duty to do so</li><li>Invalid use of legal authority (ie false arrest)</li></ol>

Question 23

Q

The act of restraints only counts for which type of intentional tort

Answer

A

False Imprisonment

Question 24

Q

Insufficient acts of restraints for FI include

Answer

A

<ol><li>moral pressure</li><li>future threats</li></ol>

Question 25

Q

What is not considered a reasonable way out

Answer

A

<ol><li>Dangerous</li><li>Disgusting</li><li>Humiliating</li><li>Hidden</li></ol>

Question 26

Q

What damages are available for false imprisonment

Answer

A

<ol><li>actual, not necessary to show</li><li>nominal, when cant get actual</li><li>punitive, malice</li></ol>

Question 27

Q

PFC for IIED

Answer

A

<ol><li>Act by D amounting to extreme and outrageous conduct - only a tort if the conduct is extremely outrageous</li><li>Intent - D intentionally (purposeful or knowledgeable) or recklessly (reckless disregard of the risk causing P the IIED) causes P severe emotional distress</li><li>Causation</li><li>Damages - severe emotional distress</li></ol>

Question 28

Q

Conduct is outrageous when

Answer

A

“exceeds all bounds of decency tolerated in a civilized society”

Question 29

Q

Conduct becomes outrageous when:

Answer

A

<ol><li>Continuous in nature</li><li>Committed by a certain type of D (ie common carriers, innkeepers may be liable even for mere gross insults</li><li>Directed towards a certain type of P (kids, elderly, pregnant, supersensitive adults )<ol><li>have to know person is pregnant</li><li>doesnt matter if D knows person is supersensitive</li></ol></li></ol>

Question 30

Q

What intent is needed for IIED

Answer

A

reckless is enough

Question 31

Q

What types of damages can be collected for IIED

Answer

A

actual damages are required

physical injury NOT required severe emotional distress is enough

Question 32

Q

PFC for bystander in IIED

Answer

A

<ol><li>meet PFC for IIED -OR-</li><li>present when injury occurred</li><li>distress resulted in bodily harm to bystander OR P is close relative of bystander; and</li><li>D knew these facts</li></ol>

Question 33

Q

A private person may make an arrest without a warrant if

Answer

A

a felony has been committed and he reasonably believes that the person confined is the felon.

Question 34

Q

A father enrolled his seven-year-old son in an older level baseball league by falsifying his son’s age. During a ball game, the father was infuriated when his son was called out on strikes and shouted in a loud voice, “Kill the ump!” The son, who was still holding his bat, swung it at the umpire and hit him in the arm. In an action by the umpire against the father for battery, will the umpire prevail?

Answer

A

No, because the father did not intend to commit a battery against the umpire.

Question 35

Q

A private citizen may make a felony arrest without a warrant:

Answer

A

Only if a felony has in fact been committed and the citizen has reasonable grounds for believing that the person arrested has committed it.

Question 36

Q

Which of the following constitutes sufficient confinement for false imprisonment?

A - A threat of future harm against the plaintiff’s family

B -Reasonable restraint of a suspected shoplifter

C- An indirect threat of force against the plaintiff’s property

Answer

A

C- An indirect threat of force against the plaintiff’s property

Question 37

Q

A prima facie case for intentional infliction of emotional distress requires

Answer

A

proof of extreme and outrageous conduct.

Question 38

Q

For a prima facie case of assault, \_\_\_\_\_\_\_\_\_ will satisfy the element of apprehension.

A - Threat of future contact

B - An apparent ability to act

C - Words alone

Answer

A

An apparent ability to act will satisfy the element of apprehension in a prima facie case of assault. To establish a prima facie case of assault, the plaintiff must prove there was an act by the defendant that created a reasonable apprehension in the plaintiff of immediate harmful or offensive contact

Question 39

Q

For an intentional tort, the intent element may be satisfied:

Answer

A

If the actor’s goal is to bring about certain consequences or the actor knows with substantial certainty that certain consequences will result

Question 40

Q

A prima facie case for assault requires \_\_\_\_\_\_\_\_\_\_:

Answer

A

Awareness of the force set in motion by the defendant’s act

Question 41

Q

A prima facie case for intentional tort liability requires proof of \_\_\_\_\_\_\_\_\_.

Answer

A

a volitional act

Question 42

Q

The defense of consent is not available if:

A The plaintiff consented due to threats of legal action.

B The plaintiff’s consent was induced by fraud as to a collateral matter.

C The plaintiff consented due to a mistake induced by the defendant.

D The plaintiff is not capable of consent because she is unconscious.

Answer

A

The plaintiff consented due to a mistake induced by the defendant.

Question 43

Q

A golfer and her instructor were playing golf in a foursome when the golfer became very annoyed with critical comments made by the instructor. To show the other golfers in the group how annoyed she was with her instructor, the golfer stood a few yards behind him while the instructor was teeing off and swung a club at him. The instructor, who was focusing on his shot, was not within range of the club but unfortunately the club slipped out of the golfer's hands and struck the instructor in the head, injuring him.

If the instructor brings a battery action against the golfer, will he recover?

A Yes, because the golfer acted intentionally and caused harmful contact to her instructor.

B Yes, because the golfer intended to cause the instructor reasonable apprehension of imminent harmful contact.

C No, because the golfer did not intend to cause harmful or offensive contact.

D No, unless the golfer acted unreasonably in swinging the club at her instructor.

Answer

A

C No, because the golfer did not intend to cause harmful or offensive contact.

The golfer will not be liable because she did not intend to cause harmful or offensive contact. The prima facie case for battery has the following elements: (i) an act by the defendant that brings about harmful or offensive contact to the plaintiff's person; (ii) intent on the part of the defendant to bring about harmful or offensive contact to the plaintiff's person; and (iii) causation. Here, the golfer did not have the intent to cause harmful or offensive contact.

(A) is incorrect because even though the golfer had the intent to swing the club, she did not have the intent required for battery-to cause harmful or offensive contact to another.

Question 44

Q

doctrine of transferred intent

Answer

A

when D sets in motion the action which brings about the subsequent damage/harm they can be liable for the intentional tort

for ex: D can be liable for battery even if initial intent was assault if D sets in motion the force to bring about the assault which then rises to a battery

i.e. motorcyclist saw his classmate walking and wanted to scare her by driving the motorcycle towards her and then swerve away. As motorcyclist attempts to swerve, his tire blows and he ends up falling with his motorcycle on the classmate. Classmates sues for battery. Is the suit valid?

Yes because the motorcyclists intended to scare the classmate (assault). So here, the intent to assault transfers and becomes a battery for which the classmate can sue

Question 45

Q

Can a P recover humiliation damages under FI?

Answer

A

yes!

humiliation is an actual damage that P can recover for

Question 46

Q

PFC for trespass to land

Answer

A

<ol><li>ACT of physical invasion by a person or object of P's real property by D</li><li>intent to enter … dont need to know land belonged to another</li><li>causation</li></ol>

Question 47

Q

the physical invasion onto a P's land must be by what type of act?

Answer

A

a deliberate act

Question 48

Q

If an intangible matters enters one's property (ie vibrations or odor), is it a trespass?

Answer

A

NO. but it could be a case for nuisance

Question 49

Q

The trespass claim belongs to the person with the right to?

Answer

A

right to possess the property

Question 50

Q

What type of intent is needed for trespass to property

Answer

A

D only need to intend to enter do not need to know that land belong to another

Question 51

Q

What kind of damages for trespass to land

Answer

A

P can recover without showing actual injury to land

Question 52

Q

PFC for trespass to chattels

Answer

A

<ol><li>ACT by D that interferes with P's right of possession in a chattel</li><li>INTENT Intentional act that interferes with P's personal property</li><li>Causation</li><li>Damages</li></ol>

Question 53

Q

What types of "interference" can be done D that are considered to affect P's right of possession in the chattel

Answer

A

<ol><li>D directly damaging P's chattel -OR-</li><li>D deprives P of their lawful right to possession of chattel</li></ol>

THEREFORE, A plaintiff can recover for loss of use of the chattel without proof of actual harm (eg, damage to the chatte

Question 54

Q

What type of intent is needed for trespass to chattels

Answer

A

Intent to do act that brings the interference

NOTE: a mistake of law or fact, that he/she was privileged to act is no defense to a trespass-to-chattels actioneven if the mistake was reasonable.

Question 55

Q

What kind of damages for trespass to chattels

Answer

A

A plaintiff can recover for loss of use of the chattel without proof of actual harm (eg, damage to the chatte

Question 56

Q

PFC for conversion

Answer

A

<ol><li>Act by D that interferes SO seriously with P's right of possession that D has to pay P full chattel's value</li><li>Intent to do act that brings about interference w P's right of possession</li><li>Causation</li><li>Damages</li></ol>

Question 57

Q

For conversion, the defendant must have the intent to \_\_\_\_\_\_\_\_\_\_ with the plaintiff’s right of possession.

Answer

A

Perform the act that interferes with P's right of possession.

iow: the intent involved refers to the physical act that results in the conversion, not to the defendant's desires regarding the ultimate disposition of the property.

NOTE: good-faith is irrelevant in a conversion action (i.e. D took a boardgame that he, in good-faith, believed was his)

Question 58

Q

Small harm? think -

big harm? think -

Answer

A

chattels - smaller because 8 letter

conversion - bigger because 10 letters

Question 59

Q

conversion vs. chattel - think of conversion as being more than a 50% damage to the property

A college student borrowed his roommate's notebook computer without permission because he needed to write a term paper that was due the next day. While the computer was sitting open on the student's desk overnight, a water pipe in the ceiling began leaking and water dripped down on the computer, rendering it inoperable. A computer repair service estimated that it would cost $500 to repair all the damaged components. At the time it was damaged, the computer was worth $700.

If the roommate sues the student for the damage caused to the computer, what will be the extent of his recovery?

A Nothing, because the damage occurred through no fault of the student.

B Loss of use damages for the time it was in the student's possession.

C $500 in damages.$500 in damages.

D $700 in damages.

Answer

A

D $700 in damages.

Here, the student interfered with the roommate's right of possession in the computer by taking it without permission, and it sustained damages of over 70% of its value while in the student's possession. Hence, the student has committed a conversion.

Value of computer - $700 (half of that is $350)

Value of repair - $500 (which is greater than the 50% value of the computer, which is $350)

Question 60

Q

What remedy for conversion

Answer

A

fair market value at time of conversion

Question 61

Q

What remedy for chattels

Answer

A

cost of repair

Question 62

Q

When a chattel is located on the land an innocent party, the owner is privileged to

Answer

A

Enter the land and reclaim chattel at a

<ol><li>reasonable time and</li><li>peaceful manner</li><li>when landowner has been given notice of the presence of the chattel and refuses to return it</li></ol>

Question 63

Q

When a chattel is located on the land of a wrongdoer, the owner is privileged to

Answer

A

Enter the land and reclaim chattel at a

<ol><li>reasonable time and</li><li>in a reasonable manner</li><li>usually need to demand return of the chattel from the wrongdoer before entering land</li></ol>

Question 64

Q

When a chattel is located on the land of another through the owner's fault, the owner

Answer

A

has NO privilege to enter upon the land and can only recover chattel through legal process

Answer 64

A

YES, the owner will be liable for actual damages that are caused by entry onto the innocent party's land when the owner enters the land to reclaim his respective chattel

Answer 65

A

No, it is not a defense as long as the D intended to enter upon that piece of land.

REMEMBER: the intent sufficient enough to find a claim for trespass is intent to enter

Example: Farmer relies on boundary markers placed by a reputable land surveyor. Farmer clears land for cultivation which he believes is his. In fact, he is mistaken, and he clears land that belongs to his neighbor. Farmer is liable to Neighbor for trespass

Answer 66

A

The seriousness of the interference with the plaintiff’s possession.

Answer 67

A

Directly damages a plaintiff’s chattel

Answer 68

A

When faced with a civil action involving a tort, a D may assert various defenses to escape liability.

Answer 69

A

<ol><li>Consent</li><li>Privileges</li><li>Necessity</li></ol>

Answer 70

A

<ol><li>express/actual consent</li><li>implied consent</li></ol>

Answer 71

A

the person affected by the tort (P) gave consent to the tortfeasor (D) to engage in the otherwise wrongful conduct

Answer 72

A

<ol><li>was there valid consent</li><li>did D stay within boundaries of consent</li></ol>

Answer 73

A

P expressly consents to D's conduct

Answer 74

A

<ol><li>mistake</li><li>fraud</li><li>duress</li></ol>

Answer 75

A

P expressly consents by mistake to D's conduct

UNLESS

D caused mistake or knows of mistake and takes advantage, then defense won't apply

Answer 76

A

<ol><li>Defense applies - expressly given consent induced by fraud as to a collateral matter</li><li>Defense does not apply - expressly given consent induced by fraud as to an essential matter</li></ol>

Answer 77

A

Consent obtained by duress invalid unless duress is for a:

<ol><li>future action</li><li>future economic deprivation, in which case it does not constitute legal duress sufficient enough to invalidate express consent</li></ol>

Answer 78

A

<ol><li>apparent consent</li><li>consent implied by law</li></ol>

Answer 79

A

Consent which a reasonable person would infer from the P's conduct

example: reasonable body language consent, P extends hand and says “nice to meet you”

Answer 80

A

Example: tackling someone in football is implied consent

BUT NOTE: that such consent cannot exceed what is customary. So, in a football game, there is implied consent for tackling but no implied consent for violence clearly outside the scope of the game even if it is during the game. One player shooting another player during the football game would be outside the implied consent for violence in a football game and so, implied consent would not be a defense for such an action

Answer 81

A

Arises when action necessary to save person's life or property interest

Example: firefighters enter your land to extinguish fire without consent but not trespassing on to your land because entering to save your house

Answer 82

A

<ol><li>Individuals without capacity cannot consent<ol><li>incompetents, infancy, inebriation (I³)<ol><li>NOTE: being part of the I³is NOT a defense to committing a tort</li></ol></li></ol></li><li>Individuals with limited capacity can consent but only to things within their capacity</li><li>Criminal acts<ol><li>Majority - cannot consent, so no defense</li><li>Minority + Restatement - defense valid<ol><li>consent to an act that is a breach of the peace is not effective, meaning that the defendant cannot avoid liability. </li><li>acts that are not a breach of the peace, consent is effective, meaning the defendant could avoid liablity</li></ol></li></ol></li></ol>

Answer 83

A

D is liable

Answer 84

A

<ol><li>Did D have proper timing?<ol><li>was threat imminent, in progress, or about to happen?</li></ol></li><li>Does D have a reasonable belief that threat from P is genuine?</li><li>Did D use the proper amount of force?</li></ol>

Answer 85

A

person reasonably believes that they are being attacked OR about to be attacked

Answer 86

A

<ol><li>Reasonable belief of attack</li><li>Retaliation not allowed when there is no longer threat of injury</li><li>Retreat not necessary</li><li>Not available to initial aggressor unless other party uses deadly force</li></ol>

Answer 87

A

<ol><li>Majority rule: no duty</li><li>Modern trend: duty to retreat before using deadly force if retreat can be done safely UNLESS actor is in their home</li></ol>

Answer 88

A

If the other party uses deadly force against initial aggressor who had only used nondeadly force, then initial aggressor CAN defend himself with deadly force against the other party's deadly force.

Remember: Usually, the initial aggressor may not defend himself against the other party’s reasonable use of force in self-defense.

Answer 89

A

only amount of force reasonably necessary to prevent harm.

cannot use deadly force unless reasonable belief of danger of serious bodily injury

Answer 90

A

yes, defense applicable if injury was accidental.

if injury to bystander was deliberate then defense likely won't apply

Answer 91

A

yes - reasonable mistake as to the existence of the danger

Answer 92

A

B That a reasonable person in the same circumstances would have believed that the woman was about to shoot.

If the man prevails, it will be because the jury determined that he acted reasonably under the circumstances.

One may act in self-defense not only where there is real danger but also where there is a reasonable appearance of danger.

An honest but mistaken belief that the woman was about to shoot would justify the use of deadly force by the man if a reasonable person would have acted similarly under those circumstances.

The test is an objective one-an honest belief alone is not sufficient.

Answer 93

A

Has a reasonable belief that the person being aided has the right of self-defense

Answer 94

A

Yes, The defender may be able to use deadly force

Answer 95

A

yes is reasonable mistake

meaning that even if the person the D aides did not have the right of force/self-defense (i.e. they were the initial aggressor), D will not be liable as long as he reasonably believed, EVEN MISTAKENLY, that the other person could have used force to defend themselves

Answer 96

A

to prevent commission of tort to ones property…should try to desist or leave first unless futile or dangerous

Answer 97

A

when tort has been committed* unless in hot pursuit

*remember - defense of property is only to prevent the commission of a tort

Answer 98

A

<ol><li>Reasonable belief that theft has been committed</li><li>Detention committed in a reasonable manner</li><li>Only nondeadly force can be used</li><li>Detention only for a reasonable period of time</li><li>Detention only for purpose of making an investigation</li></ol>

Answer 99

A

A person can be/use/interfere with another person's property when necessary to avoid injury from natural force or other forces

Answer 100

A

<ol><li>private necessity</li><li>public necessity</li></ol>

Answer 101

A

D acts to protect the public

ex: D sees a fire, breaks into a Acme Fire Extinguisher Co → Acme sues for trespass → D can use defense

Answer 102

A

When used to prevent serious harm to them, a limited group of ppl, or property from serious harm

Answer 103

A

Type of private necessity

ex #1: D enters house b/c snowstorm outside. If P kicks out D, D could sue for frostbite. P has to let D stay to prevent serious harm

ex #2: D ties up boat to P' s dock during storm. If P kicks out D, P pays damages to D. However, D could be liable pay damages if boat ruins P's dock even though it was a necessity to tie it up.

Answer 104

A

regaining possession of land

Answer 105

A

C Force may never be used to regain possession

Answer 106

A

B That a reasonable person in the same circumstances would have believed that the woman was about to shoot.

If the man prevails, it will be because the jury determined that he acted reasonably under the circumstances.

One may act in self-defense not only where there is real danger but also where there is a reasonable appearance of danger.

An honest but mistaken belief that the woman was about to shoot would justify the use of deadly force by the man if a reasonable person would have acted similarly under those circumstances.

The test is an objective one-an honest belief alone is not sufficient.

Answer 107

A

a legal obligation to take risk-reducing precautions in ones activities to avoid injuring other ppl and the duty to use such reasonable care is owed to all foreseeable plaintiffs

Answer 108

A

under 5: no standard

ages 5-18: subjective standard (which is pro defendant)

children engaging in adult like behavior held to an adult standard (usually operating a motorized vehicle even farm craft, boats, RVs, jet skis etc)

Answer 109

A

required to possess the knowledge and skill of an average member of that profession

Answer 110

A

no duty

Answer 111

A

Land possessor must warn or make safe any conditions that are:

<ol><li>Artificial - constructed by people (no duty owed to natural conditions i.e. ice on front steps)</li><li>Highly dangerous involving risk of death or serious bodily harm</li><li>Concealed - AND -</li><li>Known - last known condition</li></ol>

Answer 112

A

Duty to warn or make safe conditions that are:

<ol><li>Concealed<ol><li>Condition does NOThave to be likely to cause death or serious bodily injury</li></ol></li><li>Known to land possessor in advance</li></ol>

Answer 113

A

Duty to inspect and warn or make safe conditions that are:

<ol><li>Concealed</li><li>Known to land possessor in advance OR could have been discovered through inspection</li></ol>

Answer 114

A

<ol><li>Repair</li><li>Replace</li><li>Remove</li></ol>

Answer 115

A

Duty imposed on landowners to eliminate reasonably foreseeable risk of harm to children

Under the attractive nuisance doctrine, a child trespasser who is injured by a dangerous artificial condition need not have been attracted onto the property by the condition.

Answer 116

A

<ol><li>dangerous condition on land that owner is or should be aware of</li><li>owner knows or should know that kids might trespass on land</li><li>condition likely to cause injury</li><li>expense of remedy slight in comparison to magnitude of risk</li></ol>

Answer 117

A

<ol><li>P is within protected class</li><li>Statute designed to prevent they type of harm suffered by P</li></ol>

Answer 118

A

negligence in it of itself

Answer 119

A

<ol><li>Compliance with statutes is more dangerous</li><li>Compliance is impossible</li></ol>

Answer 120

A

B A five-year-old trespasser who fell into a mineshaft from which the owner had removed all warning signs, but the plaintiff was not attracted onto the owner's land because of the mineshaft.

Under the attractive nuisance doctrine, a child trespasser who is injured by a dangerous artificial condition need not have been attracted onto the property by the condition.

(A) is wrong because generally there is no obligation for a landowner to warn trespassers, whether they are children or adults, of dangerous natural conditions.

(C) is wrong for the same reason.

(D) is wrong because, as a licensee, the plaintiff need only be warned of dangerous natural conditions of which the landowner is in fact aware and which are unknown to the licensee or unlikely to be discovered by her, and here the landowner did not know of the hole.

Answer 121

A

<ol><li>Near miss</li><li>Bystander</li><li>Special relationship btwn P and D (ie business/commercial relationship)</li></ol>

Answer 122

A

<ol><li>P is within zone of danger</li><li>P must suffer physical symptoms from the distress (ie heart attack after almost being run over)</li></ol>

Answer 123

A

<ol><li>P and person injured are closely related (spouse, parent, child)</li><li>P present at scene and personally saw or perceived event</li></ol>

Answer 124

A

P has a business or commercial relationship with the D that creates a high risk of emotional distress if D acts negligently

Answer 125

A

C The daughter, because she personally observed the injury to her mother.

Answer 126

A

<ol><li>custom or usage</li><li>NPS: violation of statute</li><li>Res ipsa loquitur</li></ol>

Answer 127

A

the thing that speaks for itself

Answer 128

A

<ol><li>Accident would not normally occur unless someone was negligent</li><li>Negligence is probably attributable to D</li></ol>

Answer 129

A

directed verdcit

Answer 130

A

always deny except where P has established NPS through statute violation AND no issues of proximate cause aka chain not broken

Answer 131

A

actual + proximate

Answer 132

A

<ol><li>but for test</li><li>substantial factor test - aka cause in fact test</li><li>unknown cause test</li></ol>

Answer 133

A

P's injury would NOT have occurred but for the D's act or omission

Answer 134

A

“even if”

P would have still been injured “even if” D's act or omission did not occur

Answer 135

A

If D's negligent conduct was a substantial factorin causing the harm, its deemed an actual cause of the harm

Answer 136

A

Two or more defendants who's actions combine to harm the P but each D's individualaction alone could have caused the P's injury

Answer 137

A

BOP on the defendants to prove that they were not the cause for the P's injuries

and if cannot prove then both are jointly and severally liable

Answer 138

A

an event sufficiently related to an injury that the courts deem the event to be the cause of that injury

Answer 139

A

P has to prove that it is fair to hold the D liable because such injuries were a foreseeable consequence of the breach;

There is a causal connection btwn D's initial negligent act and P's ultimate injury such that the act set of a chain of events that end in P's injury.

Answer 140

A

foreseeability test

Answer 141

A

jury finds this was a foreseeable risk of … "

Answer 142

A

D Yes, because the freight line's violation of the braking statute was not the cause in fact of the accident.

The court should grant the motion because the driver did not establish the cause-in-fact element of his prima facie case against the freight line.

The primary test for cause in fact (actual cause) is the "but for" test: An act is the cause in fact of an injury when the injury would not have occurred but for the act.

Even though the freight line had a duty created by the statute to be able to stop its train within 200 yards of first braking, and breached that duty (establishing the first two elements of the driver's prima facie case), it must still be shown that the collision would not have occurred in the absence of the breach. Because the car was only 150 yards from the point of braking, even a train in compliance with the statute would have struck it. Since no other evidence of negligence has been presented, the motion should be granted.

(C) is not correct because the court will not reach the issue of the plaintiff's contributory negligence in this case because the prima facie case for the defendant's negligence has not been established.

Furthermore, establishing the plaintiff's contributory negligence by violation of a statute uses the same rules that govern whether a statute can establish the defendant's negligence.

Hence, the driver's violation of the crossing statute may be excused if the trier of fact determines that compliance was beyond his control because his car stalled.

Answer 143

A

D takes P as they are meaning that D is liable for all damages including aggravation of an existing condition even if unforeseeable

Answer 144

A

When P has established all other element of the claim (duty, breach, causation)

and P can also use ESP rule for other torts outside of negligence like battery, assault etc., just need to establish the elements of those torts first and then use ESP rule

Answer 145

A

<ol><li>Economic</li><li>Noneconomic<ol><li>Include emotional distress</li></ol></li><li>Damages to property<ol><li>But no recovery for emotional distress</li></ol></li></ol>

NOTES:

<ol><li>If D is liable to P, then D liable for full extent of P's harm</li><li>Punitive damages - generally cannot recover in negligence cases<ol><li>Punitive damages are awarded to P to punish D</li><li>Can only recover if D's conduct was "wanton and willful", “reckless", or malicious</li><li>Can only recover under intentional torts (BAFL² iied)</li></ol></li></ol>

Answer 146

A

<ol><li>Affirmative defense</li><li>Contributory Negligence</li><li>Comparative Negligence</li></ol>

Answer 147

A

D isn't challenging whether P can meet duty, breach, causation, or damages but rather introducingNEW evidence that if believed by fact-finder either absolve D of liability OR mitigate damages

Answer 148

A

When P fails to use relevant standards of care to protect self against foreseeable risks of harm

Answer 149

A

CL barred P's right to recovery

Answer 150

A

Court will compare the amount of negligence from each side to determine damages

Answer 151

A

<ol><li>Partial comparative negligence</li><li>Pure comparative negligence</li></ol>

Answer 152

A

<ol><li>P cant recover if atMOREfault than D (and D can recover)</li><li>P can recover if atLESSfault than D<ol><li>Recovery is reduced by percentage of fault</li></ol></li></ol>

Answer 153

A

P can recover against D no matter percentage of fault (even if 99% responsible)BUTrecovery will be reduced by percentage of fault (so 99% reduction in recovery)

Answer 154

A

P knew of a risk of injury and voluntarily assumed it

Answer 155

A

<ol><li>No duty to protect - D does not owe duty to protect P because P assumed risk</li><li>Contributory negligence - P unreasonably encountered a known risk, which reduces or bars damages P can get</li></ol>

Answer 156

A

The doctrine considers which party had the last opportunity to avoid the accident that caused the harm.

Therefore, a negligent plaintiff may recover damages if they can show that the defendant had the last clear chance to avoid the accident…but P's negligence regarding intentional torts is NOT a defense D can use to limit his liability

Answer 157

A

Contributory negligence

Answer 158

A

<ol><li>Implied AOR</li><li>Pure comp neg</li><li>Partial comp neg</li></ol>

Answer 159

A

a plaintiff to take reasonable steps to mitigate damages.

In personal injury cases this means seeking appropriate treatment to effect a cure or healing and to prevent aggravation

Answer 160

A

A Yes, because the worker knew that the patron was drunk.

The worker impliedly assumed the risk of injury when he voluntarily allowed the patron to drive him home knowing that the patron was drunk. In jurisdictions applying pure comparative negligence, implied assumption of risk is usually treated as a variant of contributory negligence.

If the plaintiff unreasonably assumed the risk of injury, as the facts indicate here, he will be considered contributorily negligent and his damages will be reduced.

(C) is incorrect. While the patron and the other driver were both proximate causes of the accident, the worker's fault in accepting a ride from an intoxicated driver also contributed to the injuries he suffered, and the jury will reduce his recovery accordingly.

Answer 161

A

Owner has knowledge of animal's dangerous propensities that are NOT common to the species (ie a golden retriever being a dog that likes eating humans)

Answer 162

A

When owner's animals trespass onto another's property and trespass and damage were reasonably foreseeable

Answer 163

A

licensees and invitees

Answer 164

A

NO unless trespassers proves owner's negligence

Answer 165

A

<ol><li>activity creates foreseeable risk of serious harm even when reasonable care is exercised by all actors to eliminate risk</li><li>the activity is NOT one of common usage in the community (common usage =common activity that is used by the community to achieve a goal)</li></ol>

common examples: blasting, manufacturing explosives, storing or transporting dangerous or biological chemicals, anything involving radiation or nuclear energy

Answer 166

A

foreseeable Plaintiffs

Answer 167

A

harm resulted from danger that was anticipated from the activity or animal includes harm cause by fleeing from perceived danger

Answer 168

A

NO! will still be strictly liable

Answer 169

A

<ol><li>Intent</li><li>Negligence</li><li>IWM - implied warranty of merchantability</li><li>IWF - implied warranty for fitness for a particular purpose</li><li>Representation theories - misrepresentation of fact and express warranty</li><li>Strict Liability</li></ol>

Answer 170

A

Strict liability

Answer 171

A

<ol><li>D is a merchant</li><li>Product is defective</li><li>Product was not substantially altered since leaving D's control, and</li><li>P was making foreseeable use of product at time of injury</li></ol>

Answer 172

A

<ol><li>commercial lessors</li><li>commercial suppliers in the distribution chain</li></ol>

Answer 173

A

<ol><li>casual sellers</li><li>service providers</li></ol>

Answer 174

A

NO!!

and a yes answer (yes K relationship required) is a fav wrong answer

Answer 175

A

<ol><li>Manufacturing defects</li><li>Design defects</li><li>Information defects</li></ol>

Answer 176

A

product failed to perform as safely as an ordinary consumer would expect

USE: “products departs from its intended design”

Answer 177

A

<ol><li>dif. design would have made it safer</li><li>dif. design would have been practical</li><li>dif. design would have been economically feasible</li></ol>

Answer 178

A

lack of adequate warnings for user or “learned intermediaries” (ie prescribing physician)

Answer 179

A

foreseeable

Answer 180

A

<ul><li>P fails to realize danger or guard against it - NO CN DEFENSE for D to use</li><li>P knew of danger and unreasonable conduct was cause of harm - CN DEFENSE APPLIES for D to use</li></ul>

Answer 181

A

<ol><li>D is a commercial supplier</li><li>D produced or sold a product that was defective when it left the D's control</li><li>product actually and proximately caused damage to the P's person or property.</li></ol>

Answer 182

A

D Wild animals, domestic animals, and trespassing animals

Answer 183

A

D is a dog with known dangerous propensities.

The owner of a dog or other family pet with known dangerous propensities will be held strictly liable for damage caused by the animal. Normally, the owner of a domestic animal is not strictly liable for injuries it causes. Strict liability will attach, however, if the owner knows of the domestic animal's dangerous propensities, i.e., propensities more dangerous than normal for that species. This rule applies even if the animal has never injured anyone.

If an animal commits an unforeseeable trespass, the owner of the animal will not be held strictly liable for damage caused by the animal. The owner is strictly liable for damage caused by the trespass of her animal only if it was reasonably foreseeable.

Answer 184

A

<ol><li>damages</li><li>injunctive relief</li><li>self-help available for private nuisance</li></ol>

Answer 185

A

the defendant substantially and unreasonably interfered with the use and enjoyment of the plaintiff’s real property.

NOTE: the P must own or rent the property in order to pursue a private nuisance claim

Answer 186

A

the severity of the inflicted injury must outweigh the utility of the defendant’s conduct

Answer 187

A

an interference with the right of the community at large

Answer 188

A

<ol><li>Active TF - party whose affirmative conduct caused the harm</li><li>Passive TF - party held vicariously liable based on relationship to active TF</li></ol>

Answer 189

A

another way of saying that employer will be held liable for tortious actions of employee who's tort occurs during scope of employment

Answer 190

A

YES

Answer 191

A

NO

Answer 192

A

FROLIC - MAJOR deviation

detour - minor deviation;

Answer 193

A

<ol><li>Employee furthering business of employer</li><li>Force authorized - ie a bouncer</li><li>Friction part of employment - ie a bill collector</li></ol>

Answer 194

A

<ol><li>engaged in a distinct business of their own;</li><li>controls the manner and method by which they perform their tasks;</li><li>is hired to do a particular job;</li><li>supplies own tools and materials;</li><li>is paid a given amount for the job; and</li><li>is hired to do a short-term, specific job.</li></ol>

Answer 195

A

<ol><li>The independent contractor is engaged in inherently dangerous activities; -OR-</li><li>The principal has a duty that is nondelegable on public policy grounds (e.g., a land occupier’s duty to keep his land safe for business invitees).</li></ol>

NOTE: a principal can be held liable for his own negligence in selecting an incompetent independent contractor.

Answer 196

A

D - A defendant may be both vicariously liable and directly liable in the same action

Answer 197

A

DMay be liable for an intentional tortious act committed by an employee

Answer 198

A

Cif the independent contractor is engaged in inherently dangerous activities

Answer 199

A

D The employee was negligently supervised by the employer.

Answer 200

A

B Yes, because the landlord was aware of the manager's habitual drunkenness and propensity for violence.

Answer 201

A

C She will prevail, because the maid's failure to lock the door created the risk that someone might enter and take the homeowner's valuables.

Answer 202

A

A Yes, because the contractor's employee left the level in the aisle.

(B) is wrong. As part of the duty owed to customers, the store employees have a duty to make reasonable inspections of their premises to discover unsafe conditions (such as if a customer had spilled something slippery in an aisle). However, regardless of whether they had a reasonable time to discover the level, the store is liable because it is responsible for the carpenter's conduct

Answer 203

A

D No, because the barber had no opportunity to oversee the contractor's actions.

The customer is not likely to prevail because the barber had no opportunity to oversee the contractor's work. A property owner owes a duty to those adjacent to the premises to take due precautions to protect them from dangerous conditions, and a business owes its customers a duty to make reasonable inspections to discover and make safe any dangerous conditions. Further, that duty cannot be delegated to an independent contractor; the owner remains vicariously liable. However, nothing in the facts establishes that the barber breached his duty to the customer. There was nothing wrong with the brackets evident from a reasonable inspection, and the awning collapsed without warning. Further, the barber was not involved in hiring or supervising the contractor and would not be responsible for the contractor's negligence. Hence, because no facts point to negligence by the barber, the customer is not likely to prevail.

(C) is incorrect because it is irrelevant. Had the barber hired the contractor, the fact that the contractor contractually assumed all of the risks of liability would not preclude the customer from recovering against the barber.

Answer 204

A

<ol><li>Defamatory statement the specifically identifies the P</li><li>Published to the 3^rd party</li><li>Damage to P's reputation</li><li>Falsity of defamatory language - true/false test</li><li>Fault of part of D</li></ol>

Answer 205

A

how aware was D (person who made statement) that statement was false

good-faith belief it was a true statement - NO fault

Answer 206

A

actual malice

Answer 207

A

<ol><li>Knowledge that statement was false -OR-</li><li>Reckless disregard as to whether statement was false</li></ol>

Answer 208

A

only negligence

Answer 209

A

<ol><li>C: commercial appropriation</li><li>L: false light</li><li>I: intrusion into ones seclusion or solitude</li><li>P: public disclosure of private facts</li></ol>

Answer 210

A

C Yes, because the actress had not given her permission to use the poster.

The proprietor has used the actress’s picture to promote the sale of hot dogs. The actress did not in any way consent to this use by the proprietor of her picture. Therefore, the “CLIP” elements that the actress needs to prove are present, and she will prevail.

(D) is wrong because there is no requirement that the defendant have actually profited from using the picture. The proprietor is liable for this tort simply because he used the actress’s picture without her permission to promote and advertise the hot dogs.

Answer 211

A

B No, because the bank representative made the statements for the wife’s benefit.

the bank representative’s statements were made under a qualified privilege. To prove defamation, the husband must show: (i) defamatory language by the defendant (ii) of or concerning the plaintiff (iii) published to a third person (iv) that causes damage to reputation, (v) falsity of the defamatory language, and (vi) fault on the defendant’s part.

Answer 212

A

C It may diminish the damages that the man would be entitled to recover.

The girlfriend is liable for defamation because she made a defamatory statement about the man to a third person. As long as it is understood in its defamatory sense, an accusation need not be believed to be actionable. Because the statement that he was stealing at his job constituted slander per se, damages are presumed, completing the prima facie case. Nevertheless, the stated fact will diminish the amount of damages that the man will recover because his reputation was not likely harmed in the eyes of his boss.

(D) is wrong because the fact that the new boss did not believe the statement does not prove lack of basis for the girlfriend to have made it.

Answer 213

A

B False light publicity.

To establish a prima facie case for invasion of privacy based on publication by defendant of facts placing plaintiff in a false light, the following elements must be proved:

<ol><li>publication of facts about plaintiff by defendant placing plaintiff in a false light in the public eye; and</li><li>the "false light" must be something that would be highly offensive to a reasonable person under the circumstances.</li></ol>

The large picture of the salesman flanked by two bulky police officers could suggest that the salesman committed a crime because it looked like pictures that newspapers often print of alleged criminals being taken into custody. This "false light" would be highly offensive to a reasonable person under the circumstance

Answer 214

A

must be for the promotion or advertisement of a product or service

Answer 215

A

<ol><li>publication of facts about plaintiff by defendant placing plaintiff in a false light in the public eye; and</li><li>the "false light" must be something that would be highly offensive to a reasonable person under the circumstances</li></ol>

Answer 216

A

<ol><li>an act of prying or intruding on the affairs or seclusion of plaintiff by defendant</li><li>the intrusion must be something that would be highly offensive to a reasonable person; and</li><li>the thing to which there is an intrusion or prying must be "private."</li></ol>

Answer 217

A

<ol><li>publication or public disclosure of private information about the plaintiff, and</li><li>the matter made public is such that its disclosure would be highly offensive to a reasonable person.</li></ol>

Answer 218

A

the defendant is a commercial supplier, 2. the defendant produced or sold a product that was defective when it left the defendant’s control,3. the defective product was an actual and proximate cause of the plaintiff’s injury, and 4. the plaintiff suffered damages to person or property.

Answer 219

A

was foreseeable

Answer 220

A

C Require that suppliers have an opportunity to inspect.

Answer 221

A

C The failure of a retailer to take action after discovering a dangerous defectWhen the intermediary’s conduct becomes something more than ordinary foreseeable negligence, it becomes a superseding cause. Hence, the conduct of a retailer who discovered a dangerous defect and then took no action *(such as alerting the manufacturer, warning the consumer, or removing the product from sale) *constitutes more than ordinary foreseeable negligence and may cut off the manufacturer’s liability.

Answer 222

A

A The defendant cannot avoid liability by showing negligent failure of an intermediary to discover the defect.

Answer 223

A

C The retailer of the defendant manufacturer’s product discovered the defect during the course of an inspection but failed to warn the buyer.

Answer 224

A

B Yes, because the car he was driving was dangerously defective.

Answer 225

A

C The man, because the steering failed due to a defect present when the boat left the manufacturer.

Answer 226

A

B Recover, because the consumer’s failure to recognize the improper assembly does not cut off the store’s liability.

Answer 227

A

A It has no legal effect on the manufacturer’s liability.It has no legal effect on the manufacturer’s liability.

Answer 228

A

<ol><li>C: commercial appropriation</li><li>L: false light</li><li>I: intrusion into ones seclusion or solitude</li><li>P: public disclosure of private facts</li></ol>

Answer 229

A

consent

Answer 230

A

C The company's duty in respect to the movement of its soil on the highway was delegable.

The general rule is that a principal will not be liable for tortious acts of its agent if the agent is an independent contractor. However, a broad exception will impose liability on the principal if the duty is nondelegable because of public policy considerations. As long as the company was not subject to a nondelegable duty, it would not be liable for the negligence of the excavator's employee in the transportation of its soil.

(A) is not as good an answer as (C) because the fact that the accident was caused by the negligence of the independent contractor's employee does not necessarily excuse the company from liability.

(C) supplies the additional factor that enables the company to avoid liability.

(B) is incorrect because the possession of a license by the excavator would not excuse the company from liability.

(D) is incorrect because the fact that the transportation of soil was common to the area is relevant only for a strict liability action for abnormally dangerous activities, and the transport of soil by truck is not such an activity.

Answer 231

A

C The motorist was contributorily negligent.

Because the motorist was not driving attentively, the motorist was contributorily negligent. Under traditional rules, plaintiff’s contributory negligence is a complete defense to negligence; i.e., it completely bars plaintiff’s right to recover.

Here the motorist is contributorily negligent because he was not paying attention to his driving. If he had been paying attention, the facts indicate that he would have had adequate time to either stop his car or swerve to avoid the driver’s vehicle.

Answer 232

A

B Yes, because the driver’s negligent driving was a cause in fact of the collision.

The plaintiff will prevail because the driver’s negligence was a cause in fact of the plaintiff’s injuries. But for the driver’s negligent act of colliding with the plaintiff’s car, the plaintiff would not have been injured, regardless of the fact that the airbag was defective. Note that there can be more than one cause in fact of an injury. (A) is incorrect because the corporation’s negligence would not qualify as an intervening act, because it occurred earlier in time than the driver’s. An intervening force comes into motion after the time of the defendant’s negligent act and combines with it to cause injury to the plaintiff. (C) is incorrect because the fact that the defective airbag violated a statute may establish a breach of duty by the corporation, but it does not relieve the driver from liability for negligence. (D) is incorrect because the “but for” test is used to establish liability in concurrent cause cases, not limit another’s liability. As stated above, there may be more than one cause in fact of an injury.

Answer 233

A

C No, because the accusation is absolutely privileged.

The plaintiff cannot sue the defendant in a defamation action because the accusation is absolutely privileged. All statements made by the judge, jurors, counsel, witnesses, or parties in judicial proceedings are absolutely privileged. Absolute privileges are not affected by a showing of malice, abuse, or excessive publication, unlike qualified privileges. Because the defendant was testifying in court regarding the plaintiff’s conduct, the statement is absolutely privileged regardless of its truth or falsity. It also does not matter whether the defendant was lying or testifying out of malice towards the plaintiff

Answer 234

A

May be vicariously

Answer 235

A

<ol><li>Existence of a valid contractual relationship btwn P and a 3rd party or a valid business expectancy of plaintiff</li><li>D's knowledge of the relationship or expectancy</li><li>Intentional interference by defendant that induces a breach or termination of the relationship or expectancy; and</li><li>Damage to plaintiff.</li></ol>

Answer 236

A

The trespasser was threatening only the property interest of the electric company, so the use of deadly force was not be privileged.

By leaving the power (after landowner had discontinued operations on the land) on to prevent theft, the electric company was using indirect deadly force to defend its property where such force could not lawfully be directly used. Hence, it will be liable to the trespasser for his injuries.

Answer 237

A

B Yes, because the other driver violated the speeding statute, and the motorist's damages will not be reduced despite his violation of the headlight statute.

No excuse for violating the speeding statute is present in the facts; thus, violation of the statute establishes negligence per se.

(A) is incorrect because, while an applicable statute may establish plaintiff's contributory negligence, the headlight statute does not apply here. Even though the statute was intended to protect drivers against cars being driven without headlights, it would be very difficult to show that it was designed to prevent rear-end collisions during the day, or that violation of the statute was a cause of the motorist's injury.

Answer 238

A

B The associate justice made the statements knowing they were false.

(C) is incorrect because, even if the associate justice hated the chief justice and wanted to harm him, he would not be liable for defamation if the statements were true, since a public official such as the chief justice must prove that the statement was false. Thus, it would not be enough merely to show that the associate justice had bad motives.

(D) is essentially the same answer as (C)

Answer 239

A

C Yes, because the bear is a wild animal.

An owner of a wild (i.e., nondomestic) animal, even one kept as a pet, will be strictly liable for the damage caused by the animal. A bear, even a very tame one, will be classified as a wild animal.

(B) is wrong because the injury the girl suffered was within the "normal dangerous propensity" of the animal. Strict liability for wild animals includes liability for the harm that results when a person is attempting to flee from what is perceived to be a dangerous animal

Answer 240

A

C The backpacker did not conduct himself as a reasonably prudent person in carrying out the rescue of the hiker.

(A) is an incorrect statement of the law - a rescuer is not strictly liable for a victim's injuries, but rather is liable only for negligent acts. (Here, the backpacker was negligent in his driving.)

(B) is an accurate statement of the law but does not take into account that the backpacker must be negligent to be liable at all.

Answer 241

A

B The patient, regardless of whether she establishes damages at trial.

The patient can establish a prima facie case for battery regardless of whether she establishes damages at trial.

Here, the surgeon's performing the operation would be offensive contact because it was unconsented to: The patient had selected her doctor to perform the operation and did not consent to the surgeon's participating in the procedure.

(A) is incorrect because damages is not an element of the prima facie case for battery. Even if the patient cannot establish damages, she can obtain a judgment in her favor and at least nominal damages.

This question differs from card 17 because here there was a lack of consent to the different physician performing the procedure whereas in the other question on card 17, there was consent of to the surgery and the use of local anesthetic

Answer 242

A

D No, because the child suffered no harm from use of the anesthetic.

One of the duties that doctors, dentists, and other health professionals owe their patients is the duty to provide a patient with enough information about the risks of a proposed course of treatment or surgical procedure to enable the patient to make an "informed consent" to the treatment.

If an undisclosed risk was serious enough that a reasonable person in the patient's position would have withheld consent to the treatment, the health care professional has breached this duty. However, breach of duty is only one element of a cause of action for negligence. The plaintiff must also establish actual and proximate cause and some damage to plaintiff's person or property. Damage means actual harm or injury

Here, the mother consented to the surgery and use of a local anesthetic, so battery is not applicable. Further, the child's dental work was completed without any problem and no other injury is apparent from the facts; the mother's possible distress at not being informed of the risk is not, standing alone, a compensable injury.

This Q is different from card 16 because here there was consent to the dentistry vs the app'y surgery where there was no consent for a different doctor. While both questions are the same in the fact that neither patient suffered actual harm, the difference is the lack of consent which creates a claim for battery. There was an offensive contact which was NOT consented to.

Answer 243

A

B The company did not sell or place into the stream of commerce the defective parachute.

To establish liability in a strict liability action based on a defective product, the plaintiff must prove that the defendant is a commercial supplier of the product in question and that the product is expected to be supplied to the consumer without substantial change in the condition in which it is supplied.

Here, the company produced the defective parachutes but did not place them into the stream of commerce and did not intend to do so. Thus, it is not liable to the member with regard to the defective parachutes.

(D) is incorrect. There is no indication that the member knew that the parachutes might be defective just because they were sold on the black market. Even in jurisdictions that apply their comparative negligence rules to strict products liability actions, the member's conduct, if considered negligent, would at most reduce the estate's recovery by a small amount.

(B) is a better choice because it totally negates the company's liability.

Answer 244

A

A The engineer knew of a better design that he could have used that would have prevented the failure.

(C) is incorrect. An activity is characterized as abnormally dangerous only if it involves a substantial risk of serious harm to persons or property, even when reasonable care is exercised by all actors, and the activity is not a matter of common usage in the community. Designing an aeration system for a wastewater treatment plant would not constitute an abnormally dangerous activity under this test

Answer 245

A

A No, because the guest did not have invitee status when he was climbing over the gate.

In jurisdictions following the traditional landowner liability rules, the duty owed by an owner or occupier of land to those on the land depends on whether the person on the land is characterized as a trespasser, licensee, or invitee.

An invitee is one who enters onto the premises in response to an express or implied invitation from the landowner. A person loses his status as an invitee if he exceeds the scope of the invitation.

Here, the guest was an invitee while on the grounds of the resort, but he lost invitee status when he began climbing over the gate to get into the closed bar. He became a trespasser because he clearly did not have express or implied permission to climb into the bar, and a landowner owes no duty to an undiscovered trespasser.

Here, while the guest can argue that he was an anticipated trespasser because others had climbed over the gate in the past, there is no evidence that the resort knew of the dangerous condition of the brackets, so the resort has breached no duty to the guest under these facts.

(C) is incorrect because, as discussed above, the resort's awareness of previous thefts from the bar may make the guest an anticipated trespasser rather than an undiscovered trespasser, but it does not make the resort liable to the guest under these circumstances.

(D) is incorrect because the failure to inspect or discover the dangerous condition does not make the resort liable here. The guest could argue that the resort operators should have known of the dangerous condition of the gate, but that would not establish liability here. The landowner must know of a highly dangerous artificial condition to be liable to trespassers, and nothing indicates that any resort employee knew that the gate would collapse.

Answer 246

A

B Yes, because the factory owner intended to conduct the activities that caused the particles to fall on the farmer's land.

Here, note that the farmer had complained to the factory owner. The factory owner continued his activity knowing with substantial certainty that the flakes would continue to fall on the farm whenever the wind was right. Thus, it can be found that the factory owner intended to bring about the trespass.

Answer 247

A

C That the steering mechanism was in a defective condition unreasonably dangerous to users, and the defect could have been discovered and corrected if the component manufacturer had exercised reasonable care in its quality control process.

PFC of negligence in a products liability case, the plaintiff must show: (i) the existence of a legal duty owed by the defendant to that particular plaintiff; (ii) breach of that duty; (iii) actual and proximate cause; and (iv) damages.

The duty of care arises when the defendant acts as a commercial supplier of products. A commercial supplier who assembles a product from components manufactured by others is subject to the same liability as the manufacturer of the defective component. To prove breach of duty, the plaintiff must show (i) negligent conduct by the defendant that leads to (ii) the supplying of a defective product.

Here, because the snowmobile manufacturer assembled the snowmobile from component parts, including the steering mechanism manufactured by the component manufacturer, and sold the snowmobile as its own product, it will be liable for the negligence of the component manufacturer.

(A) would be correct if the plaintiff were suing the snowmobile manufacturer on a strict liability theory, BUT the facts of the question indicate that the plaintiff is suing in negligence. In products liability actions, always make sure you are applying the appropriate theory of liability.

(D) is incorrect even though the snowmobile manufacturer may have had a duty to inspect the steering mechanism before assembly. Nothing in (D) indicates that either the component manufacturer or the snowmobile manufacturer was negligent.

The existence of a defect does NOT by itself establish negligence, and the snowmobile manufacturer's failure to inspect the mechanism before assembly is not actionable negligence if the defect would not have been discovered even with a reasonably careful inspection. It becomes actionable negligence, however, due to the existence of the defect, the failure of the component manufacture to exercise reasonable care, the snowmobile's failure to inspect, and most importantly, the fact that BOTH snowmobile AND component manufacturer are BOTH in the chain of commerce thus, making the snowmobile manufacturer liable for the component manufacturer's negligence.

IOW: cannot claim negligence if even reasonable inspection would NOT have revealed the defect…because inspection would probably negate the claim of negligence (because someone took the time to reasonably inspect so, they would not be negligent). Have to show that defect was discoverable. Therefore, (C) is a better choice because it supplies the negligence element, which (D) does not.

Answer 248

A

D The failure of the machinery company to inspect the tunnel has no legal effect on the electronics company's liability.

Even if an inspection would have disclosed the defect, the machinery company's failure to do so would have no legal effect on the electronics company's liability.

Regardless of whether the technician's survivors are using a negligence theory or a strict liability theory (both theories must be considered because the call of the question does not supply the theory of liability), an intermediary's negligent failure to discover a defect is NOT a superseding cause, and the defendant who supplied the defective product will be held liable along with the intermediary. Thus, even if the machinery company's failure to inspect were negligent, it would not relieve the electronics company of liability.

(A) is incorrect because it is a reversal of one of the situations in which indemnity is available. Where strict liability rules apply, each supplier of a defective product is liable to an injured person, but each supplier has a right of indemnification against all previous suppliers of the defective product in the distribution chain.

Here, both the machinery company and the electronics company would be liable in a strict liability action as suppliers if they supplied a defective product. However, the electronics company, as the previous supplier in the chain, would be liable to the machinery company for indemnity, rather than the machinery company being liable to the electronics company for indemnity.

Answer 249

A

C No, because the injury did not arise from the dangerous aspect of the activity.

The motorist is not likely to prevail in a strict liability action because her injury did not arise from the abnormally dangerous aspect of the freight carrier's activity.

Strict liability does not apply to harms that were not caused by the normally dangerous aspect or propensity of the activity. The scope of liability extends only to the dangers that would be anticipated from the activity involved.

Here, the carrier's activity is subject to strict liability because of the danger of explosion from the truck's cargo, but not from a crash by itself. Because the motorist's injuries were not caused by an explosion from the explosives in the truck, strict liability does not apply.

The carrier would be liable for the injuries from the crash only if the motorist established negligence…but here the question asks about strict liability.

(D) is incorrect. It is questionable whether the negligence by the local authorities could be considered an intervening force, which must come into play after the culpable conduct by the defendant. Even if it were an intervening force, it likely would not be considered so extraordinary as to be an unforeseeable intervening force. Hence, it would not constitute a superseding force that would break the causal connection between the motorist's injury and the carrier's actions.

Answer 250

A

B Yes, because the negligence of the parking attendant created the opportunity for the theft.

The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts.

In indirect cause cases, an independent intervening force may be foreseeable where the defendant's negligence increased the risk that these forces would cause harm to the plaintiff.

Even a criminal act by a third party will not cut off the defendant's liability if the defendant's negligence created a foreseeable risk that a third person would commit the crime.

Here, the parking company's employee negligently left the key in the ignition when she parked the owner's car on a side street away from the restaurant, creating a foreseeable risk that the car would be stolen. But for that negligence, the car would not have been stolen.

(A) is incorrect because, under pure comparative negligence rules, the car owner could recover some of his damages even if his negligence was deemed to be greater than the defendant's.

(D) is incorrect because superseding cause analysis does not apply to the plaintiff's negligence. Rather, it is an issue of contributory negligence.

Answer 251

A

a landowner to regain real property after being tortiously dispossessed

Answer 252

A

B Yes, if the manufacturer knew that its television was sometimes mounted on ceilings rather than walls.

Courts in a strict liability case require a commercial supplier to anticipate reasonably foreseeable uses even if they are misuses of the product. If the manufacturer knew that members of the public were sometimes mounting the television on the ceiling, marketing the product without including either warnings against the practice or appropriate hardware and instructions on how to safely do so made the product so defective as to be unreasonably dangerous if it were improperly mounted. Under a strict liability theory, the manufacturer is liable for supplying a defective product. As a guest of a purchaser of the product, the woman is a foreseeable plaintiff; thus, the manufacturer may be liable to her. The defective product actually and proximately caused the woman to suffer serious injuries. Therefore, the manufacturer is liable to the woman in a strict products liability action.

(A) is incorrect because the facts do not establish that the manufacturer was under a duty to include the warnings in its manual. Such a duty would exist if the manufacturer knew (as (B) states) or should have known that the television was being mounted on ceilings.

Answer 253

A

C The volunteers, because the guest cannot establish which of the volunteers breached her duty of care.The volunteers, because the guest cannot establish which of the volunteers breached her duty of care.

Here, the volunteers each owed a duty of care to anyone consuming the food they prepared, including the guest. The facts indicate that at least one of the volunteers breached that duty by improperly preparing or cooking the ground beef. That breach of duty caused the guest to become seriously ill. However, he cannot establish which of the volunteers breached the duty of care and was a factual cause of his injury. Absent additional evidence, the guest will not prevail.

(B) is incorrect. The alternative liability or unascertainable cause approach of Summers v. Tice applies when two or more persons have been negligent but it cannot be determined which one caused the plaintiff's injury. The court will shift the burden of proof to each of the negligent defendants to show that his negligence was not a factual cause of the injury. Here, however, there is no evidence that all of the volunteers were negligent; most likely, just one of them was. Hence, the volunteers will not be required to prove that they did not cause the guest's injury.

Answer 254

A

C The landlord's conduct was not the proximate cause of the nephew's injuries.

To establish proximate cause in indirect cause cases, where an intervening force combines with the defendant's conduct to cause the plaintiff's injury, the plaintiff must show that the defendant's negligence caused a foreseeable harm or caused a foreseeable reaction from a foreseeable intervening force. Intervening forces that produce a harm outside of the scope of what would normally be anticipated from the defendant's negligence are generally deemed unforeseeable and superseding. Such a superseding event will break the chain of causation and relieve the defendant of liability. Here, it is ultimately a question for the jury whether the landlord's failure to fix the water heater was a proximate cause of the nephew's injury. However, the jury could very well find that the landlord's failure to do so, even if negligent, is not a proximate cause of the nephew's burn injuries because the conduct of the nephew and the tenant are superseding forces.

(A) is incorrect. Not only the tenant but also the landlord owes a duty to the tenant's nephew. The landlord's duty to maintain hot water in the tenant's apartment extends to guests of the tenant as well.

(B) is incorrect. The tenant's conduct was not the only actual cause of the nephew's injuries under the "but for" test for actual cause. The landlord's failure to repair the water heater promptly was also an actual cause, because but for his failure to do so, the tenant would not have been carrying a pot of hot water to the bathroom.

(D) is incorrect. Under the rule that a tortfeasor takes his victim as he finds him, it is irrelevant that the extent or severity of the plaintiff's injuries was unforeseeable. If the landlord were liable to the nephew, he would be liable for all of his injuries even though some were not foreseeable.

Answer 255

A

D The jurisdiction has abolished joint and several liability.

If the plaintiff recovers only $25,000, it will be because the jurisdiction has abolished joint and several liability. Under joint and several liability, when two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortfeasor is liable to the plaintiff for the entire damage incurred. Hence, the plaintiff could recover $50,000 from the defendant if joint and several liability applied (her total damages reduced by the amount of her own fault that contributed to her injury). The facts do not state what percent of fault was assigned to the defendant, but given that the other choices are incorrect, the defendant's fault must have been determined to be 25%, so that $25,000 would be the plaintiff's recovery in the absence of joint and several liability.

(A) is incorrect regardless of whether joint and several liability applies. If the defendant's fault were less serious than that of the other tortfeasor, he would be liable to the plaintiff for less than $25,000 in the absence of joint and several liability. If joint and several liability did apply, he would be liable to the plaintiff for $50,000-the full amount of her damages.

(B) is incorrect because the fact that the plaintiff's fault equals the combined fault of the other two tortfeasors is relevant only in a partial comparative negligence jurisdiction. It is irrelevant in a pure comparative negligence jurisdiction.

(C) is incorrect because the rule of contribution, regardless of whether it is based on a pro rata approach or a proportional fault approach, does not affect how much the plaintiff receives from a defendant. Rather, it enables a defendant who has paid more than his share of damages to the plaintiff under joint and several liability to seek recovery against any other joint tortfeasor for the excess paid.

Answer 256

A

C) $40,000.

The pedestrian can collect $40,000 from the driver. In a pure comparative negligence jurisdiction, the plaintiff can recover even if he was over 50% at fault.

Thus, (A) is wrong. The recovery will be limited to the percentage of damage attributed to the defendant(s), in this case 40%.

The jurisdiction retains the rule on joint and several liability. Therefore, each defendant is responsible for the combined liability of all defendants. (C) is therefore correct and (B) is wrong.

(D) is wrong because, in a comparative negligence jurisdiction, the plaintiff's recovery is reduced due to his negligence.

Answer 257

A

the intentional and unlawful confinement of another* against that person’s will (eg, by force, threat, or fraud)* coupled with either moving or hiding that person.A perpetrator need only move the victim a short distance—even a few feet—to satisfy the movement (ie, asportation) element of kidnapping. However, for a kidnapping to occur incident to the commission of another offense, the movement of the victim must be more than is necessary to complete the other offense.* Otherwise, the perpetrator cannot be convicted of kidnapping.

Brainscape's Knowledge GenomeTM

aa_torts_20230208184416 Flashcards

Brainscape's Knowledge Genome^TM