Chapter 6: Tort Law

Question 1

Torts

Answer 1

Two types:

• Intentional
• Unintentional (negligence)

Question 2

Elements of Negligence

Answer 2

• The defendant owed a legal duty of care to the plaintiff
• The defendant breached the duty of care to the plaintiff
• The defendant’s negligent act was the proximate cause of the plaintiff’s injury or damage
• The plaintiff suffered actual injury or damage

Question 3

Proximate Cause

Answer 3

Rules to determine proximate cause:

• “But for” rule
• Substantial factor rule
• Proof of defendant’s responsibility
• Forseeability rule

Question 4

Defenses Against Negligence

Answer 4

• Comparative negligence
• Releases and exculpatory clauses
• Immunity
• Statues of limitations and repose
• Tortfeasor’s capacity

Question 5

Comparative Negligence

Answer 5

Four variations of the application of comparative negligence:

• The pure comparative negligence rule
• The 50% rule
• The 49% rule
• The slight versus gross rule

Question 6

Immunity

Answer 6

Four major classes of immunities:

• Sovereign, or governmental, immunity
• Public official immunity
• Charitable immunity
• Intrafamilial immunity

Question 7

Intrafamilial Immunity

Answer 7

Two principal categories;

• Interspousal immunity
  
  • has been abolished, in whole or part, by all jurisdictions
• Other family relationship immunities
  
  • Some jurisdictions still recognize parent-child immunity

Question 8

Intentional Torts

Part 1

Answer 8

Common types of intentional torts:

• Battery
• Assault
• False imprisonment or false arrest
• Intentional infliction of emotional distress
• Defamation (libel and slander)
• Invasion of the right of privacy

Question 9

Battery

Answer 9

Defenses to Battery:

• The plaintiff consented to the act
• The act was in self-defense or defense of others
• The act was one of physical discipline

Question 10

Slander & Libel

Answer 10

Defenses:

• The statement was true
• The defendant made or printed a retraction
• The statement had absolute privilege
• The statement had conditional or qualified privilege

Question 11

Torts Involving Use or Disclosure of Information

Answer 11

• Public disclosure of private facts
• Publicity placing plaintiff in a false light
• Unauthorized release of confidential information
• Appropriation of plaintiff’s name or likeness

Question 12

Defenses to Invasion of Privacy

Answer 12

• The plaintiff previously published the information
• The plaintiff consented to publication
• The plaintiff is a public figure, or the information is public knowledge
• The Information was part of a news event
• The publication would not offend an individual of ordinary sensibility
• Matters are disclosed in judicial proceedings
• The Information is of public interest, such as the public’a right to know

Question 13

Intentional Torts

Part 2

Answer 13

• Fraud
• Bad faith, or outrage
• Interference with relationships between others
• Misuse of legal process
• Trespass
• Nuisance
• Conversion

Question 14

Defenses to Fraud

Answer 14

• The statement was not false
• The statement did not relate to a material fact
• The defendant did not know clothe statement was false
• The defendant did not indent to deceive
• The plaintiff did not rely on the statement
• The plaintiff suffered no harm or loss because of relying on the statement

Question 15

Defenses to Bad Faith

Answer 15

• No intent or recklessness was involved
• No outrageous or extreme conduct occurred
• The defendant did not reach any implied duty of good faith and fair dealings
• If contract damages are involved, the defendant owned no contractual duty to the plaintiff
• In an insurance case, no valid insurance contract existed

Question 16

Interference with Relationships Between Others

Answer 16

• Injurious falsehood
• Malicious interference with prospective economic advantage
• Unfair competition
• Interference with employment
• Interference with copyright, patent, or trademark
• Interference with right to use one’s own name in business
• Interference with family relationships

Question 17

Misuse of Legal Process

Answer 17

• Malicious prosecution

- Malicious abuse of process

Question 18

Malicious Prosecution

Answer 18

These acts bar a lawsuit for malicious prosecution:

• Defendant’s action on advice of counsel
• Plaintiff’s guilt of the crime
• Probable cause

Question 19

Trespass

Answer 19

Defenses:

• The plaintiff did not own or possess the property
• The plaintiff consented to the defendant’s entry
• The defendant did not enter onto or take control of the property

Question 20

Conversion

Answer 20

Defenses:

• A plaintiff’s failure to establish the right to possession of the property
• A plaintiff’s refusal to demand return, followed by the defendant’s consequent refusal to deliver

Question 21

Ultrahazardous Activities

Answer 21

• It has a high degree of risk or serious harm
• It cannot be performed without the high degree of risk
• It does not normally occur in the area in which it is conducted

Question 22

Products Liability

Answer 22

Based on one or more of these legal principles:

• Misrepresentation
• Breach of warranty
• Strict liability and negligence

Question 23

Types of Product Defects

Answer 23

• Defect in manufacture or assembly
• Defect in design
• Failure to warn

Question 24

Product Liability Defenses

Answer 24

• State-of-the-art defense
• Compliance with statues and regulations defense
• Compliance with product specifications defense
• Open and obvious danger defense
• Plaintiff’s knowledge defense
• Comparative negligence versus the assumption-of-risk defense
• Misuse of product defense
• Alteration of product defense

Question 25

Damages in Tort Suits

Answer 25

Two broad categories of damage: - Compensatory damages - Punitive damages (exemplary damages) by

Question 26

Punitive Damages

Answer 26

Can be awarded only in certain situations for ordinary negligence: - The defendant actually intended to cause harm - The defendant acted oppressively, maliciously, or fraudulently

Question 27

Punitive Damages

Answer 27

To assess punitive damages, courts usually consider three factors: - Nature of the defendant's actions - Size of the defendant's assets - Purpose of punitive damages

Question 28

Misuse of Legal Process

Answer 28

- Malicious prosecution | - Malicious abuse of process

Question 29

Malicious Prosecution

Answer 29

These acts bar a lawsuit for malicious prosecution: - Defendant's action on advice of counsel - Plaintiff's guilt of the crime - Probable cause

Question 30

Trespass

Answer 30

Defenses: - The plaintiff did not own or possess the property - The plaintiff consented to the defendant's entry - The defendant did not enter onto or take control of the property

Question 31

Conversion

Answer 31

Defenses: - A plaintiff's failure to establish the right to possession of the property - A plaintiff's refusal to demand return, followed by the defendant's consequent refusal to deliver

Question 32

Ultrahazardous Activities

Answer 32

- It has a high degree of risk or serious harm - It cannot be performed without the high degree of risk - It does not normally occur in the area in which it is conducted

Question 33

Products Liability

Answer 33

Based on one or more of these legal principles: - Misrepresentation - Breach of warranty - Strict liability and negligence

Question 34

Liability Concepts Affecting Tort Claims

Answer 34

- Joint tortfeasors - Expanded liability concepts - Vicarious liability - Good Samaritan issues - Class actions and mass tort litigation

Question 35

Expanded Liability Concepts

Answer 35

- Enterprise liability (industry-wide liability) - Alternative liability - Market share liability - Convert of action - Conspiracy - Joint venture

Question 36

Vicarious Liability

Answer 36

- Principle and agent - Employer and employee - Parent and child

Question 37

Class Actions and Mass Tort Litigation

Answer 37

A trial court considers four features to certify a suit as a class action: - Numerosity - Commonality - Typicality - Adequacy of representation