Essay

Question 1

Environmental Trespass Issue

Answer 1

The issue is whether D is liable to P for trespass due to [facts about intangible things entering land]. Traditionally, trespass to land required entry of persons or intangible objects, but some courts now recognize the tort of environmental trespass caused by intangible matter.

Question 2

Environmental Trespass Elements

Answer 2

To be successful at an environmental trespass claim, P must prove that

1) D caused intangible things to enter land that interfered with the owner’s exclusive right of possession,

2) P possessed the land,

3) D intended to cause the intangible thing to enter the land, and

4) P suffered damages due to the trespass.

Question 3

Environmental Trespass First….

Answer 3

First, P must prove D caused something intangible to enter land, such as gases or particulate matter. Here, P caused something intangible to enter the land because [facts].

Question 4

Environmental Trespass Second…

Answer 4

Second, P must prove she possessed the land.

Possession is determined not by ownership but by who has the right to control the land over all others.

Here, P possessed the land because [facts] indicate she had the right to control the land at the time.

Question 5

Environmental Trespass Third…

Answer 5

Third, P intended to cause the entry if he acted with the purpose of causing the entry or knew with substantial certainty that the entry would occur.

Here, D intended to cause the entry because [facts] indicate he [acted with the purpose of causing][or knew with substantial certainty it would occur.

Question 6

Environmental Trespass Transferred Intent

Answer 6

Under the doctrine of transferred intent, D intended to cause entry on P’s land if he intended to enter the land of another but instead entered P’s land. Here, D intended to enter P’s land because [facts].

Question 7

Environmental Trespass Mistake as to possession

Answer 7

Mistake as to who was in lawful possession of the land does not relieve D’s liability. Here, D is still liable for entry on P’s land even though he thought the land belonged to [facts].

Question 8

Environmental Trespass Fourth…

Answer 8

Fourth, P must prove the trespass damages.

Unlike trespass to land due to tangible objects which requires no damages, P cannot recover for tresspass due to intangible things unless the trespass caused substantial harm.

Here, P suffered substantial harm because [facts].

Question 9

Environmental Trespass defenses

Answer 9

Consent, private and public necessity

Question 10

Private Nuisance Issue

Answer 10

The issue is whether D is liable to P because D did [facts] which interfered with P’s use of her land.

Question 11

Private Nuisance definition

Answer 11

A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.

Question 12

Private Nuisance Elements

Answer 12

To succeed in a private nuisance claim, P must prove with a preponderance of the evidence that

1) D interfered with P’s private use and enjoyment of his land,

2) the interference was substantial,

3) the interference was unreasonable, and

4) D intentionally or negligently caused the interference, or caused it while engaged in an abnormally dangerous activity.

Question 13

Private Nuisance First…issue only

Answer 13

First, P must prove D interfered with her private use and enjoyment of her land.

Question 14

Private Nuisance First…possession

Answer 14

P must have a possessory or non-possessory right to the land, or right to a profit or easement. Here, P had a right to the land because [facts].

Question 15

Private Nuisance First…use and enjoyment

Answer 15

Rights to use and enjoyment of land include broad rights for any personal or business purposes, and right for land not to be impaired by physical changes.

Here, D’s actions of [facts] interfered with P’s use and enjoyment because [facts].

Question 16

Private Nuisance Second…

Answer 16

Second, the interference must be substantial. Interference is substantial when it is more than merely offensive, inconvenient or annoying to an average member of the community.

Question 17

Private Nuisance Second…actual injury

Answer 17

An interference that causes property damage or personal injury is always substantial. Here, the interference was substantial because [facts].

Question 18

Private Nuisance Second…abnormally sensitive

Answer 18

However, an interference is not substantial if it results because of P’s abnormal sensitivities. Here, the interference is not substantial because [facts].

Question 19

Private Nuisance Third…issue only

Answer 19

Third, the interference must be unreasonable. An interference is unreasonable when the gravity of the harm outweighs the utility of D’s conduct, or P’s harm is greater than what P should have to endure without compensation.

Question 20

Private Nuisance Third….balancing test

Answer 20

In considering whether the gravity of the harm outweighs D’s conduct court’s consider many factors including:

property rights and values
neighborhood type and zoning,
cost of eliminating the nuisance
social benefits of D’s conduct.

Here, the gravity of the harm does/does not outweigh D’s conduct because [facts].

Question 21

Private Nuisance Third…harm greater than P should bear

Answer 21

But P’s harm is still greater than what she should have to bear without compensation because [facts]. Thus, the court will likely find the interference was unreasonable.

Question 22

Private Nuisance Third…action taken for spite

Answer 22

An action taken for spite or for annoying or injuring P is likely to be considered unreasonable.

Here, the interference is likely unreasonable because [facts] indicate D’s conduct wa for the purpose of [facts].

Question 23

Private Nuisance Fourth….intentionally

Answer 23

Fourth, D must intentionally or negligently cause the interference, or through conduction of an abnormally dangerous activity. D caused the harm intentionally if he acted with the purpose of causing the interference or acted knowing with substantial certainty it would occur. Here, D intentionally caused the interference because [facts].

Question 24

Private Nuisance Fourth….negligently

Answer 24

Fourth, D negligently caused the harm if he breached the standard of care owed to D. Here, D negligently caused the interference because [facts].

Question 25

Private Nuisance Fourth…strict liability

Answer 25

Fourth, D is strictly liable because he engaged in an abnormally dangerous activity (ADA).

An ADA is one that creates a substantial and foreseeable risk of harm even if D is not negligent, and is not one of common usage in the community.

Here, D was conducting an abnormally dangerous activity because [facts]. This activity caused the inteference because [facts].

Question 26

Private Nuisance defenses

Answer 26

Consent, contributory or comparative negligence, private and public necessity

Question 27

Private Nuisance coming to the nuisance

Answer 27

D may argue that P knowingly and voluntarily subjected himself to the risk because [facts] mean he “came to the nuisance’.

However, coming to the nuisance is not a complete defense and is only one factor to be considered in determining if the nuisance is substantial.

Here, this argument will likely fail because [facts].

Question 28

Private Nuisance remedies

Answer 28

P may be entitled to compensatory damages and/or an injunction.

Question 29

Public Nuisance definition

Answer 29

A public nuisance is an unreasonable interference with a right common to the general public.

Question 30

Public Nuisance elements

Answer 30

To succeed in a public nuisance claim as a private plaintiff, P must prove with a preponderance of evidence that:

1) D interfered with a right common to the general public,

2) the interference was substantial,

3) the interference was unreasonable,

4) D either intentionally or negligently caused the harm, or it was caused by D conducting an abnormally dangerous activity, and

5) P suffered a different harm than the public at large.

Question 31

Public Nuisance First…

Answer 31

First, D must interfere with a right common to the general public.

Rights common to the general public include rights to public health, safety, peace, comfort or enjoyment.

(He says people come everyday)

Here, D interfered with a right common to the general public because [facts] interfered with the public right to [insert].

Question 32

Public Nuisance Second…

Answer 32

Second, the interference must be substantial. Interference is substantial when it is more than merely offensive, inconvenient or annoying to an average member of the community.

Question 33

Public Nuisance Third…

Answer 33

Third, the interference must be unreasonable.

An interference is unreasonable when

1) the gravity of the harm outweighs the utility of D’s conduct, or
2) P’s harm is greater than what P should have to endure without compensation.

Question 34

Public Nuisance Fourth….

Answer 34

Fourth, because P is a non-governmental plaintiff, he must suffer a different harm than the public at large.

Here, P suffered a different harm than the public at large because [facts].

Question 35

Public Nuisance Fifth….intentionally

Answer 35

Fifth, D intentionally caused the harm intentionally if he acted with the purpose of causing the interference or acted knowing with substantial certainty it would occur.

Here, D intentionally caused the interference because [facts].

Question 36

Public Nuisance Fifth….negligently

Answer 36

Fifth, D negligently caused the harm if he breached the standard of care owed to P.

Here, D negligently caused the interference because a reasonable person would do [analysis].

Question 37

Public Nuisance Fifth…strict liability

Answer 37

Fifth, D must intentionally or negligently cause the interference, or though conduction of an abnormally dangerous activity.

An abnormally dangerous activity is one that creates a foreseeable risk of harm even if D is not negligent and is not one of common usage in the community.

Here, D was conducting an abnormally dangerous activity because [facts].

This activity caused the inteference because [facts].

Question 38

Public Nuisance defenses

Answer 38

Consent, coming to the nuisance, statutory authority, contributive negligence, private and public necessity

Question 39

Strict Liability Wild Animal Issue

Answer 39

The issue is whether D is liable to P because P’s wild animal caused harm.

Question 40

Strict Liability Wild Animal Definition

Answer 40

Strict liability due to harm caused by a wild animal is liability without fault.

Question 41

Strict Liability Wild Animal Elements

Answer 41

To succeed, P must prove with a preponderance of evidence that 1) D owed her a duty to do no harm because of his possession of the animal, 2) D breached that duty, 3) P was harmed by the breach; 4) D’s breach was the actual cause of the harm, and 5) the proximate cause of the harm.

Question 42

Strict Liability Wild Animal First…

Answer 42

First, D must owe P a duty to do no harm because he possessed a wild animal.

A wild animal is a category of animal not generally domesticated and that is likely to cause personal injury if not restrained.

Here, P’s [animal] is a wild animal because [animal] is not generally domesticated. [Animal] is also likely to cause personal injury if not restrained because [facts].

Question 43

Strict Liability Wild Animals First..tame animal

Answer 43

The danger is based on the species, not the particular animal. The fact that D’s [animal] was tame, as indicated by [facts], does not make his [animal] a domesticated animal for purposes of tort law.

Question 44

Strict Liability Wild Animals Second…

Answer 44

Second, D breached his duty to do no harm if the animal caused harm.

Here, D breached his duty because [facts].

Question 45

Strict Liability Wild Animals Second…license or permit

Answer 45

The fact that D has a license or permit does not relieve him of liability.

Question 46

Strict Liability Wild Animals Third…

Answer 46

Third, P must suffer recoverable harm. For strict liability torts, recoverable harm includes property damage or bodily injury.

Here, P suffered [property damage][bodily injury] because [facts].

Question 47

Strict Liability Wild Animals Third…pure economic loss

Answer 47

P’s pure economic loss of [facts] is not harm for purposes of strict liability.

Question 48

Strict Liability Wild Animals Fourth…but for

Answer 48

Fourth, D’a animal is the actual cause of P’s harm if the harm would not have occurred but for D’s wild animal.

Here, [animal] is the but for cause of P’s harm because [facts].

Question 49

Strict Liability Wild Animals Fourth…chain of events

Answer 49

Fourth, D must be the actual cause of P’s harm. D is the actual cause of P’s harm if the wild animal started a chain of events that would not have occurred but for the wild animal’s conduct. Here, but for [animal] [x, y and z] would not have occurred and P would not ahve been harmed.

Question 50

Strict Liability Wild Animals Fourth…concurrent causes

Answer 50

Fourth, D must be the actual cause of P’s harm. If there were multiple actors or actions and the conduct of one party alone would not have caused the harm and the harm is indivisible, both parties will be jointly liable unless they can prove what portion of the harm was caused by each. Here, D and [actor] caused the harm but the harm is indivisible because [facts]. Thus, both will be considered the actual cause of P’s harm.

Question 51

Strict Liability Wild Animals Fourth…substantial factor

Answer 51

Fourth, D must be the actual cause of P’s harm. If there were two or more actors and any one actor’s conduct was sufficient to cause the harm, both actors are liable for P’s harm. Here, D’s wild animal and x both contributed to P’s harm because [facts]. [Facts] indicate either would have been sufficient to cause the entire injury. Those both will be considered the actual cause of P’s harm.

Question 52

Strict Liability Wild Animals Fourth…alternative cause

Answer 52

Fourth, D must be the actual cause of P’s harm. If two or more actors contributed to P’s harm but it is impossible to tell which caused the injury, each will be liable for the full extent of the harm. Here, because [facts] indicate both D and X contributed to the harm and it is impossible to tell who caused the injury, both will be considered the actual cause of the harm.

Question 53

Strict Liability Wild Animals Fifth..Issue

Answer 53

Fourth, D’s wild animal must be the proximate cause of P’s harm. The wild animal is the proximate cause of P’s harm if the harm results from a dangerous propensity that is characteristic of [animals] or of which D knows or has reason to know.

Here, D’s [animal] is the proximate cause of P’s [harm] is within the scope of harm that results from dangerous propensities of [animal]. [Animals] are dangerous because [facts].

Question 54

Strict Liability Wild Animals Fifth…fear

Answer 54

A wild animal’s propensity to cause fear in humans is within the scope of the risk that makes possessing a wild animal dangerous. Here, P’s [harm] was caused because [animal] created fear. Thus, D’s wild animal is the proximate cause of P’s harm.

Question 55

Strict Liability Wild Animals Fifth…remote

Answer 55

However, D’s possession of [animal] is not the proximate cause of P’s harm if it is too remote in time and space. Here, D’s possession is not the proximate cause because [facts] mean the harm was too remote in time or space.

Question 56

Strict Liability Wild Animals Fifth..intervening

Answer 56

D’s animal is not the proximate cause of P’s harm if there is a superseding intervening cause.

Negligence of third parties, forces of nature, and conduct of another animal are not superseding causes for strict liability torts.

Question 57

Strict Liability Wild Animals Fifth…eggshell skull

Answer 57

Foreseeability of the extent of harm is not required. D is the proximate cause of all harm sustained by P even though [facts] made her harm greater than that of an ordinary person.

Question 58

Strict Liability Wild Animals Fifth…deliberate contact for benefit

Answer 58

However, D’s wild animal is not the proximate cause of harm P suffered if she made contact with D’s wild animal for the purpose of securing some benefit from the contact. Here, D’s wild animal is not the proximate cause of P’s harm because [facts].

Question 59

Strict Liability Wild Animals Fifth…obligated by law

Answer 59

However, D’s wild animal is not the proximate cause of P’s harm if D possessed the wild animnal in pursuance of an obligation imposed by law.

Here, D’s wild animal is not the proximate cause of P’s harm because [facts].

Question 60

Strict Liability Wild Animals Fifth..examples of obligations of law

Answer 60

Common carrier shipping animal, public official assuming control of wild animal in the wild

Question 61

Strict Liability Wild Animals..Defenses

Answer 61

Duty to mitigate, contributory negligence, assumption of the risk, comparative responsibility

Question 62

Strict Liability Wild Animals…Defenses Duty to Mitigate

Answer 62

D may argue that he is not responsible for all or some of P’s harm because P failed to fulfill her duty to mitigate the harm. Here, P had a duty to mitigate harm that could be avoided. P did not do [facts], so D will not be liable for [x].

Question 63

Strict Liability Wild Animals..Defenses Contributory Negligence

Answer 63

If the jurisdiction recognizes contributory negligence, D may argue that because P did [facts] she was contributorily negligent which absolves his liability. However, this argument will fail because contributory negligence is not a defense to strict liability.

Question 64

Strict Liability Wild Animals..Defenses Assumption of the Risk

Answer 64

However, in those jurisdictions, D may be able to assert a defense of assumption of the risk if he can show P knowingly and voluntarily came into contact with the wild animal. Here, [facts] indicate P knowingly and voluntarily assumed the risk because [facts].

Question 65

Strict Liability Wild Animals…Defenses Comparative Responsibility

Answer 65

If the jurisdiction recognizes comparative responsibility for strict liability torts, D will argue that his liability should be reduced because P was also negligent. He will argue P was negligent because [facts]. This argument will likely succeed because [facts].

Question 66

Strict Liability Wild Animals…Defenses Comparative Responsibility Impact

Answer 66

In a pure comparative negligence jurisdiction, P’s recovery will be reduced by the percentage of the harm attributed to her. In a modified jurisdiction, P’s harm will be reduced by the percentage of the harm attributed to her. However, if her percentage exceeds 50%, she will not recover.

Question 67

Strict Liability Domestic Animal Issue

Answer 67

The issue is whether D is liable to P because P’s Domestic animal caused harm.

Question 68

Strict Liability Domestic Animal Definition

Answer 68

Strict liability due to an abnormally dangerous domestic animal is liability without fault.

Question 69

Strict Liability Domestic Animal Elements

Answer 69

To succeed, P must prove with a preponderance of evidence that 1) D owed her a duty to do no harm because of his possession of the animal, 2) D breached that duty, 3) P was harmed by the breach; 4) D’s breach was the actual cause of the harm, and 5) the proximate cause of the harm.

Question 70

Strict Liability Domestic Animal First…issue and domestic

Answer 70

First, D owed P a duty to do no harm if he possessed an abnormally dangerous domestic animal.

A domestic animal is a category of animals generally devoted to the service of mankind, including as for livestock and companionship. Here, D’s animal is a domestic animal because [facts].

Question 71

Strict Liability Domestic Animals First..abnormally dangerous

Answer 71

A domestic animal is abnormally dangerous if he has dangerous propensities of which D knows or should have known. Here, D’s animal is abnormally dangerous because [facts].

Question 72

Strict Liability Domestic Animals Second…

Answer 72

Second, D breached his duty to P if the animal caused harm.

Here, D breached his duty because [facts].

Question 73

Strict Liability Domestic Animals Third…

Answer 73

Third, P must suffer actual harm - property damage or bodily injury. actual harm.

Here, P suffered [property damage][bodily injury] because [facts].

Question 74

Strict Liability Domestic Animals Third…pure economic loss

Answer 74

P’s pure economic loss of [facts] is not harm for purposes of strict liability.

Question 75

Strict Liability Domestic Animals Fourth…but for

Answer 75

Fourth, D must be the actual cause of P’s harm. D is the actual cause of P’s harm if the harm would not have occurred but for D’s abnormally dangerous domestic animal.

Question 76

Strict Liability Domestic Animals Fourth…chain of events

Answer 76

Fourth, D must be the actual cause of P’s harm. D is the actual cause of P’s harm if the abnormally dangerous domestic animal started a chain of events that would not have occurred but for the Domestic animal’s conduct. Here, but for [animal] [x, y and z] would not have occurred and P would not ahve been harmed.

Question 77

Strict Liability Domestic Animals Fourth…concurrent causes

Answer 77

Fourth, D must be the actual cause of P’s harm. If there were multiple actors or actions and the conduct of one party alone would not have caused the harm and the harm is indivisible, both parties will be jointly liable unless they can prove what portion of the harm was caused by each. Here, D and [actor] caused the harm but the harm is indivisible because [facts]. Thus, both will be considered the actual cause of P’s harm.

Question 78

Strict Liability Domestic Animals Fourth…substantial factor

Answer 78

Fourth, D must be the actual cause of P’s harm. If there were two or more actors and any one actor’s conduct was sufficient to cause the harm, both actors are liable for P’s harm. Here, D’s Domestic animal and x both contributed to P’s harm because [facts]. [Facts] indicate either would have been sufficient to cause the entire injury. Those both will be considered the actual cause of P’s harm.

Question 79

Strict Liability Domestic Animals Fourth…alternative cause

Answer 79

Fourth, D must be the actual cause of P’s harm. If two or more actors contributed to P’s harm but it is impossible to tell which caused the injury, each will be liable for the full extent of the harm. Here, because [facts] indicate both D and X contributed to the harm and it is impossible to tell who caused the injury, both will be considered the actual cause of the harm.

Question 80

Strict Liability Domestic Animals Fifth..Issue

Answer 80

Fourth, D’s Domestic animal is the proximate cause of P’s harm if the harm is within the scope of the risk created by the dangerous propensity of the animal.

Here, D’s [animal] is the proximate cause of [harm] because it is within the scope the risk of harm that results from dangerous propensities of [animal]. [Animal] is dangerous because [facts].

Question 81

Strict Liability Domestic Animals Fifth…fear

Answer 81

An abnormally dangerous domestic animal’s propensity to cause fear in humans is within the scope of the risk that makes possessing a Domestic animal dangerous. Here, P’s [harm] was caused because [animal] created fear. Thus, D’s Domestic animal is the proximate cause of P’s harm.

Question 82

Strict Liability Domestic Animals Fifth…remote

Answer 82

However, D’s possession of [animal] is not the proximate cause of P’s harm if it is too remote in time and space. Here, D’s possession is not the proximate cause because [facts] mean the harm was too remote in time or space.

Question 83

Strict Liability Domestic Animals Fifth..intervening

Answer 83

D is the proximate cause of P’s harm even though the danger created by the [animal] resulted in harm he had no reason to expect due to negligence of a third-party , force of nature or conduct of another animal. Here, D’s [animal] is the proximate cause of P’s harm because [facts].

Question 84

Strict Liability Domestic Animals Fifth…eggshell skull

Answer 84

Foreseeability of the extent of harm is not required. D is the proximate cause of all harm sustained by P even though [facts] made her harm greater than that of an ordinary person.

Question 85

Strict Liability Domestic Animals Fifth…deliberate contact for benefit

Answer 85

However, D’s Domestic animal is not the proximate cause of harm P suffered if she made contact with D’s Domestic animal for the purpose of securing some benefit from the contact. Here, D’s Domestic animal is not the proximate cause of P’s harm because [facts].

Question 86

Strict Liability Domestic Animals Fifth…obligated by law

Answer 86

However, D’s Domestic animal is not the proximate cause of P’s harm if D possessed the Domestic animnal in pursuance of an obligation imposed by law. Here, D’s Domestic animal is not the proximate cause of P’s harm because [facts].

Question 87

Strict Liability Domestic Animals Fifth..examples of obligations of law

Answer 87

Common carrier shipping animal, public official assuming control of Domestic animal in the Domestic

Question 88

Strict Liability Domestic Animals..Defenses

Answer 88

Duty to mitigate, contributory negligence, assumption of the risk, comparative responsibility

Question 89

Strict Liability Domestic Animals…Defenses Duty to Mitigate

Answer 89

D may argue that he is not responsible for all or some of P’s harm because P failed to fulfill her duty to mitigate the harm. Here, P had a duty to mitigate harm that could be avoided. P did not do [facts], so D will not be liable for [x].

Question 90

Strict Liability Domestic Animals..Defenses Contributory Negligence

Answer 90

If the jurisdiction recognizes contributory negligence, D may argue that because P did [facts] her negligence contributed to the harm, which absolves his liability. However, this argument will fail because contributory negligence is not a defense to strict liability.

Question 91

Strict Liability Domestic Animals..Defenses Assumption of the Risk

Answer 91

However, in those jurisdictions, D may be able to assert a defense of assumption of the risk if he can show P knowingly and voluntarily came into contact with the Domestic animal. Here, [facts] indicate P knowingly and voluntarily assumed the risk because [facts].

Question 92

Strict Liability Domestic Animals…Defenses Comparative Responsibility

Answer 92

If the jurisdiction recognizes comparative responsibility for strict liability torts, D will argue that his liability should be reduced because P was also negligent. He will argue P was negligent because [facts]. This argument will likely succeed because [facts].

Question 93

Strict Liability Domestic Animals…Defenses Comparative Responsibility Impact

Answer 93

In a pure comparative negligence jurisdiction, P’s recovery will be reduced by the percentage of the harm attributed to her. In a modified jurisdiction, P’s harm will be reduced by the percentage of the harm attributed to her. However, if her percentage exceeds 50%, she will not recover.

Question 94

Strict Liability Abnormally Dangerous Activity Issue

Answer 94

The issue is whether D is strictly liable to P for harm caused by [D’s activity].

Question 95

Strict Liability Abnormally Dangerous Activity Definition

Answer 95

One who engages in an abnormally dangerous activity is strictly liable for any harm proximately caused by the activity even if D exercises reasonable care.

Question 96

Strict Liability Abnormally Dangerous Activity Elements

Answer 96

To succeed, P must prove with a preponderance of evidence that 1) D owed her a duty to do no harm because D conducts an abnormally dangerous activity, 2) D breached that duty, 3) P was harmed by the breach; 4) D’s breach was the actual cause of the harm, and 5) the proximate cause of the harm.

Question 97

Strict Liability Abnormally Dangerous Activity First…issue

Answer 97

First, D owes P a duty to do no harm if he was engaged in an abnormally dangerous activity.

An abnormally dangerous activity is one that
a) creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors, and
b) the activity is not one of common usage.

Question 98

Strict Liability Abnormally Dangerous Activity First…foreseeable risk

Answer 98

Here [activity] creates a foreseeable and highly significant risk of physical harm because [facts]. This risk exists even if reasonable care is exercised by all actors because [facts].

Question 99

Strict Liability Abnormally Dangerous Activity First..common usuage

Answer 99

An activity is a matter of common usual if it is customarily carried on by the great mass of mankind or by many people in the community. Here, [activity] is not one of common usage because [facts].

Question 100

Strict Liability Abnormally Dangerous Activity Second…

Answer 100

Second, D breached his duty to do no harm if the abnormally dangerous acitivity caused harm. Here, D breached his duty because [facts].

Question 101

Strict Liability Abnormally Dangerous Activity Third…

Answer 101

Third, P must suffer recoverable harm. For strict liability torts, recoverable harm includes property damage or bodily injury. Here, P suffered [property damage][bodily injury] because [facts].

Question 102

Strict Liability Abnormally Dangerous Activity Third…pure economic loss

Answer 102

P’s pure economic loss of [facts] is not harm for purposes of strict liability.

Question 103

Strict Liability Abnormally Dangerous Activity Fourth…but for

Answer 103

Fourth, D must be the actual cause of P’s harm. D is the actual cause of P’s harm if the harm would not have occurred but for the abnormally dangerous activity. Here, the ADA is the actual cause of P’s harm because the harm would not have occurred but for the ADA. If D had not be doing [activity], [x] would not have occurred.

Question 104

Strict Liability Abnormally Dangerous Activity Fourth…chain of events

Answer 104

Fourth, D must be the actual cause of P’s harm. D is the actual cause of P’s harm if the ADA started a chain of events that would not have occurred but for the ADA. Here, but for the ADA, [x, y and z] would not have occurred and P would not have been harmed.

Question 105

Strict Liability Abnormally Dangerous Activity Fourth…concurrent causes

Answer 105

Fourth, D must be the actual cause of P’s harm. If there were multiple actors or actions and the conduct of one party alone would not have caused the harm and the harm is indivisible, both parties will be jointly liable unless they can prove what portion of the harm was caused by each. Here, D and [actor] caused the harm but the harm is indivisible because [facts]. Thus, both will be considered the actual cause of P’s harm.

Question 106

Strict Liability Abnormally Dangerous Activity Fourth…substantial factor

Answer 106

Fourth, D must be the actual cause of P’s harm. If there were two or more actors and any one actor’s conduct was sufficient to cause the harm, both actors are liable for P’s harm. Here, D’s ADA and x both contributed to P’s harm because [facts]. [Facts] indicate either would have been sufficient to cause the entire injury. Those both will be considered the actual cause of P’s harm.

Question 107

Strict Liability Abnormally Dangerous Activity Fourth…alternative cause

Answer 107

Fourth, D must be the actual cause of P’s harm. If two or more actors contributed to P’s harm but it is impossible to tell which caused the injury, each will be liable for the full extent of the harm. Here, because [facts] indicate both D and X contributed to the harm and it is impossible to tell who caused the injury, both will be considered the actual cause of the harm.

Question 108

Strict Liability Abnormally Dangerous Activity Fifth..Issue

Answer 108

Fourth, D’s ADA is the proximate cause of P’s harm if the harm is foreseeable and within the scope of the risk created by the dangerous propensities of [ADA].

Here, D’s ADA is the proximate cause of P’s [harm] is within the scope of harm that results from dangerous propensities of [activity]. [Activity] is dangerous because [facts].

Question 109

Strict Liability Abnormally Dangerous Activity Fifth…remote

Answer 109

However, D’s ADA is not the proximate cause of P’s harm if it is too remote in time and space. Here, D’s possession is not the proximate cause because [facts] mean the harm was too remote in time or space.

Question 110

Strict Liability Abnormally Dangerous Activity Fifth..intervening

Answer 110

D is the proximate cause of P’s harm even though the danger created by the ADA resulted in harm he had no reason to expect due to negligence of a third-party , force of nature or conduct of another animal. Here, D’s ADA is the proximate cause of P’s harm because [facts].

Question 111

Strict Liability Abnormally Dangerous Activity Fifth…eggshell skull

Answer 111

Foreseeability of the extent of harm is not required. D is the proximate cause of all harm sustained by P even though [facts] made her harm greater than that of an ordinary person.

Question 112

Strict Liability Abnormally Dangerous Activity Fifth…deliberate contact for benefit

Answer 112

However, D’s ADA is not the proximate cause of harm P suffered if she made contact with the ADA for the purpose of securing some benefit from the contact. Here, the ADA is not the proximate cause of P’s harm because [facts].

Question 113

Strict Liability Abnormally Dangerous Activity Fifth…obligated by law

Answer 113

However, D’s ADA is not the proximate cause of P’s harm if D pursues the ADA due to an obligation imposed by law. Here, D’s ADA is not the proximate cause of P’s harm because [facts].

Question 114

Strict Liability Abnormally Dangerous Activity Fifth..examples of obligations of law

Answer 114

Common carrier shipping animal, public official assuming control of Domestic animal in the Domestic

Question 115

Strict Liability Abnormally Dangerous Activity..Defenses

Answer 115

Duty to mitigate, contributory negligence, assumption of the risk, comparative responsibility

Question 116

Strict Liability Abnormally Dangerous Activity…Defenses Duty to Mitigate

Answer 116

D may argue that he is not responsible for all or some of P’s harm because P failed to fulfill her duty to mitigate the harm. Here, P had a duty to mitigate harm that could be avoided. P did not do [facts], so D will not be liable for [x].

Question 117

Strict Liability Abnormally Dangerous Activity..Defenses Contributory Negligence

Answer 117

If the jurisdiction recognizes contributory negligence, D may argue that because P did [facts] she was contributorily negligent which absolves his liability. However, this argument will fail because contributory negligence is not a defense to strict liability.

Question 118

Strict Liability Abnormally Dangerous Activity..Defenses Assumption of the Risk

Answer 118

However, in those jurisdictions, D may be able to assert a defense of assumption of the risk if he can show P knowingly and voluntarily came into contact with the Domestic animal. Here, [facts] indicate P knowingly and voluntarily assumed the risk because [facts].

Question 119

Strict Liability Abnormally Dangerous Activity…Defenses Comparative Responsibility

Answer 119

If the jurisdiction recognizes comparative responsibility for strict liability torts, D will argue that his liability should be reduced because P was also negligent. He will argue P was negligent because [facts]. This argument will likely succeed because [facts].

Question 120

Strict Liability Abnormally Dangerous Activity…Defenses Comparative Responsibility Impact

Answer 120

In a pure comparative negligence jurisdiction, P’s recovery will be reduced by the percentage of the harm attributed to her. In a modified jurisdiction, P’s harm will be reduced by the percentage of the harm attributed to her. However, if her percentage exceeds 50%, she will not recover.

Question 121

Strict Liability Mfg Defect Issue

Answer 121

The issue is whether D is strictly liable to P because [product] caused P harm

Question 122

Strict Liability Mfg Defect Definition

Answer 122

Commercial sellers are strictly liable for harm caused by products they manufacture or sell even if they exercise all reasonable care.

Question 123

Strict Liability Mfg Defect Elements

Answer 123

To succeed, P must prove with a preponderance of evidence that 1) D was a commercial seller who owed her a duty to do no harm, 2) D breached that duty, 3) P was harmed by the breach; 4) D’s breach was the actual cause of the harm, and 5) the proximate cause of the harm.

Question 124

Strict Liability Mfg Defect First…issue

Answer 124

First, D owed P a duty to do no harm he is a commercial seller of the product that causes her harm.

A commercial seller is anyone in the line of distribution of the product, and who regularly sold the product that caused P’s harm.

Here, D was a commercial seller of [product] because [facts].

Question 125

Strict Liability Mfg Defect First…line of distribution

Answer 125

All commercial sellers in the line of distribution are liable. No privity is required. Here, D owes a duty to P even though he [facts].

Question 126

Strict Liability Mfg Defect First…casual seller or used goods

Answer 126

Casual sellers and sellers of used goods are not commercial sellers. Here, D is not liable because [facts] means she is a casual seller.

Question 127

Strict Liability Mfg Defect Second…mfg defect

Answer 127

Second, D breached his duty to do no harm if a mfg defect caused the harm.

A mfg defect exists when:
1) the product departed from its intended design,
2) even though all possible care was exercised, and
3) the defect made the product unreasonably dangerous.

Here, [product] had a mfg defect because [facts]. The defect made the product unreasonably dangerous because [facts].

Question 128

Strict Liability Mfg Defect Second…substantially same condition

Answer 128

The product must have been in substantially the same conduct when it reached P as when it left D’s control. Here, the product was in substantially the same condition because [facts]. Thus, D breached his duty of care.

Question 129

Strict Liability Mfg Defect Second…presumption of defect

Answer 129

Circumstantial evidence may allow a presumption of defect (similar to res ipsa loquitor in negligence).

A) P’s harm must be of a kind that normally occurs as a result of a product defect, and
B) it was not solely the result of causes other than the a defect existing at the time of sale or distribution.

Here, P can argue that [harm] does not ordinarily occur absent a product defect because [facts].

Further, there are no facts indicating that the harm could have been the result of a cause other than the product defect at the time of sale or distribution. [Facts] indicate that nothing P or another party did caused the harm.

Question 130

Strict Liability Mfg Defect Second…statute governs product

Answer 130

Violation of a statue may be proof of breach, but adherence to a statute does not prove there was no breach. Here, P can argue that D’s violation of the statute is prove of breach because [facts].

Question 131

Strict Liability Mfg Defect Third…

Answer 131

Third, P suffers harm if she has damages to her person or property.

Here, P suffered [property damage][bodily injury] because [facts].

Question 132

Strict Liability Mfg Defect Third…pure economic loss

Answer 132

P’s pure economic loss of [facts] is not harm for purposes of strict liability.

Question 133

Strict Liability Mfg Defect Fourth…but for

Answer 133

Fourth, the mfg defect must be the actual cause of P’s harm. A mfg defect is the actual cause of P’s harm if the harm would not have occurred but for the defect. Here, the defect is the actual cause of P’s harm because the harm would not have occurred if [facts]. Thus, the defect is the actual cause of P’s harm.

Question 134

Strict Liability Mfg Defect Fourth…chain of events

Answer 134

Fourth, the mfg defect must be the actual cause of P’s harm. The mfg defect is the actual cause of P’s harm if the defect started a chain of events that would not have occurred but for the defect. Here, but for the defect, [x, y and z] would not have occurred and P would not have been harmed.

Question 135

Strict Liability Mfg Defect Fourth…concurrent causes

Answer 135

Fourth, the mfg defect must be the actual cause of P’s harm. If there were multiple actors or actions and the conduct of one party alone would not have caused the harm and the harm is indivisible, both parties will be jointly liable unless they can prove what portion of the harm was caused by each. Here, the mfg defect and [actor] caused the harm but the harm is indivisible because [facts]. Thus, both will be considered the actual cause of P’s harm.

Question 136

Strict Liability Mfg Defect Fourth…substantial factor

Answer 136

Fourth, the mfg defect must be the actual cause of P’s harm. If there were two or more actors and any one actor’s conduct was sufficient to cause the harm, both actors are liable for P’s harm. Here, the mfg defect and x both contributed to P’s harm because [facts]. [Facts] indicate either would have been sufficient to cause the entire injury. Those both will be considered the actual cause of P’s harm.

Question 137

Strict Liability Mfg Defect Fourth…alternative cause

Answer 137

Fourth, the mfg defect must be the actual cause of P’s harm. If two or more actors contributed to P’s harm but it is impossible to tell which caused the injury, each will be liable for the full extent of the harm. Here, because [facts] indicate both D and X contributed to the harm and it is impossible to tell who caused the injury, both will be considered the actual cause of the harm.

Question 138

Strict Liability Mfg Defect Fifth..Issue

Answer 138

Fourth, the mfg is the proximate cause of P’s harm if the harm is foreseeable and within the scope of the risk that made the product unreasonably dangerous.

Question 139

Strict Liability Mfg Defect Fifth…remote

Answer 139

However, the mfg defect is not the proximate cause of P’s harm if it is too remote in time and space. Here, D’s possession is not the proximate cause because [facts] mean the harm was too remote in time or space.

Question 140

Strict Liability Mfg Defect Fifth…misuse

Answer 140

The mfg defect is not the proximate cause of harm if it results from P’s unforeseeable use of the product. Here, D’s use of the product to do [facts] was unforeseeable because [facts].

Question 141

Strict Liability Mfg Defect Fifth..intervening

Answer 141

The mfg defect is the proximate cause of P’s harm even though the danger created by mfg defect resulted in harm he had no reason to expect due to negligence of a third-party , or force of nature. Here, the mfg defect is the proximate cause of P’s harm because [facts].

Question 142

Strict Liability Mfg Defect Fifth…eggshell skull

Answer 142

Foreseeability of the extent of harm is not required. The mfg defect the proximate cause of all harm sustained by P even though [facts] made her harm greater than that of an ordinary person.

Question 143

Strict Liability Mfg Defect..Defenses

Answer 143

Duty to mitigate, contributory negligence, assumption of the risk, comparative responsibility

Question 144

Strict Liability Mfg Defect…Defenses Duty to Mitigate

Answer 144

D may argue that he is not responsible for all or some of P’s harm because P failed to fulfill her duty to mitigate the harm. Here, P had a duty to mitigate harm that could be avoided. P did not do [facts], so D will not be liable for [x].

Question 145

Strict Liability Mfg Defect..Defenses Contributory Negligence

Answer 145

If the jurisdiction recognizes contributory negligence, D may argue that because P did [facts] she was contributorily negligent which absolves his liability. However, this argument will fail because contributory negligence is not a defense to strict liability.

Question 146

Strict Liability Mfg Defect..Defenses Assumption of the Risk

Answer 146

However, in those jurisdictions, D may be able to assert a defense of assumption of the risk if he can show P knowingly and voluntarily came into contact with the Domestic animal. Here, [facts] indicate P knowingly and voluntarily assumed the risk because [facts].

Question 147

Strict Liability Mfg Defect…Defenses Comparative Responsibility

Answer 147

If the jurisdiction recognizes comparative responsibility for strict liability torts, D will argue that his liability should be reduced because P was also negligent. He will argue P was negligent because [facts]. This argument will likely succeed because [facts].

Question 148

Strict Liability Mfg Defect…Defenses Comparative Responsibility Impact

Answer 148

In a pure comparative negligence jurisdiction, P’s recovery will be reduced by the percentage of the harm attributed to her. In a modified jurisdiction, P’s harm will be reduced by the percentage of the harm attributed to her. However, if her percentage exceeds 50%, she will not recover.

Question 149

Strict Liability Design Defect Issue

Answer 149

The issue is whether D is strictly liable to P because [product] caused P harm

Question 150

Strict Liability Design Defect Definition

Answer 150

Commercial sellers are strictly liable for harm caused by products they manufacture or sell even if they exercise all reasonable care.

Question 151

Strict Liability Design Defect Elements

Answer 151

To succeed, P must prove with a preponderance of evidence that 1) D was a commercial seller who owed her a duty to do no harm, 2) D breached that duty, 3) P was harmed by the breach; 4) D’s breach was the actual cause of the harm, and 5) the proximate cause of the harm.

Question 152

Strict Liability Design Defect First…issue

Answer 152

First, D owes P a duty to do no harm if he is the commercial seller of the product that caused P’s harm.

A commercial seller is anyone in the line of distribution of the product who is in the business of regularly selling the product that caused P’s harm.

Here, D was a commercial seller of [product] because [facts].

Question 153

Strict Liability Design Defect First…line of distribution

Answer 153

All commercial sellers in the line of distribution are liable. No privity is required. Here, D owes a duty to P even though he [facts].

Question 154

Strict Liability Design Defect First…casual seller or used goods

Answer 154

Casual sellers and sellers of used goods are not commercial sellers. Here, D is not liable because [facts] means she is a casual seller.

Question 155

Strict Liability Design Defect Second…Design defect

Answer 155

Second, D breached his duty to P if the product caused harm due to a design defect.

Depending upon the jurisdiction, either the risk/utility test or the consumer expectation test will be used to determine whether a product has a design defect.

Question 156

Strict Liability Design Defect Second…risk/utility defined

Answer 156

Under the risk utility test, a design defect exists if the foreseeable risks of harm posed by the product could have been avoided by adopting a reasonable alternative design and the omission of the RAD renders the product unreasonably dangerous.

Question 157

Strict Liability Design Defect Second…risk/utility balancing test

Answer 157

D breached his duty if the burden of taking adequate precautions did not outweigh the probability of harm mulitipled by the severity of the harm because there existed a RAD.

Here, D will argue that the product could have been designed to [RAD description] and failure to use the RAD made the product unreasonably dangerous.

Question 158

Strict Liability Design Defect Second…risk/utility RAD

Answer 158

For the alternative design to be reasonable it must
1) make the product safer for all reasonably foreseeable uses,
2) not substantionally impair the product’s usefulness for its intended purposes, and at the time of sale or distribution it was
3) technologically feasible, and
4) economically feasible.

Here, P’s proposed alternative design…..

Question 159

Strict Liability Design Defect Second…risk/utility low social utility/high risk

Answer 159

If the product has low or no social utility and high degree of danger, the product may be found to have a design defect even absent proof of a RAD.

Here, [product] has low social utility because [facts]. It poses a high degree of danger because [facts]. Thus, a court could find that it has a design defect even though P has not put through a RAD.

Question 160

Strict Liability Design Defect Second…Consumer Expectations Test defined

Answer 160

Under the consumer expectations test, a design defect when it fails to perfom as safely as an ordinary consumer would expect.

Question 161

Strict Liability Design Defect Second…Consumer Expectations conclusion

Answer 161

An ordinary consumer would expect [product] to do [x] and be [y safe]. Thus, because the product had [dangers] which the ordinary consumer would not expect, the product has a design defect if this test is used.

Question 162

Strict Liability Design Defect Second…unavoidably dangerous

Answer 162

D is not liable due to a design defect for unavoidably dangerous products.

A product that cannot be made safe without changing its fundamental characteristics is unavoidably dangerous.

Here, [product] is unavoidably dangerous because [facts].

However, P may still be liable if the product has a failure-to-warn defect which will be discussed infra.

Question 163

Strict Liability Design Defect Second…CE test - obvious dangers

Answer 163

D may argue there is no design defect because the dangers are obvious. Dangers that are obvious to any reasonable consumer generally are not found to cause a design defect. Here, [danger] would be obvious to the ordinary consumer because [facts].

Question 164

Strict Liability Design Defect Second…risk/utility test - obvious dangers

Answer 164

D may argue there is no design defect because the dangers are obvious. Under this test the obviousness of a danger is not dispositive and is only one factor to consider. Here, a design defect will be found to exist if P can show that there was a RAD that would render the product safe.

Question 165

Strict Liability Design Defect Second…risk/utility test - unknown dangers

Answer 165

D has no duty to design around unknown dangers at the time of manufacture or distribution of the product. Here, [danger] was unknown at the time of manufacture/distribution to P because [facts]. Thus, D had no duty to design around it so did not breach his duty to do no harm.

Question 166

Strict Liability Design Defect Second…substantially same condition

Answer 166

The product must have been in substantially the same condition when it reached P as when it left D’s control. Here, the product was in substantially the same condition because [facts]. Thus, D breached his duty of care.

Question 167

Strict Liability Design Defect Second…D redesigned product

Answer 167

P may argue that D’s redesign of the product after her purchase proves the product she purchased was unreasonably dangerous. However, most courts find this evidence is inadmissible because it discourages sellers from making safety improvements to products. Thus this argument will likely fail.

Question 168

Strict Liability Design Defect Second…defect existence at time product left D’s control

Answer 168

Proving the defect existed at time product left D’s control can be difficult. However, courts are generally lenient and allow P’s testimony as evidence P had not tampered with the product.

Question 169

Strict Liability Design Defect Third…

Answer 169

Third, P must suffer recoverable harm. For strict liability torts, recoverable harm is property damage or bodily injury. Here, P suffered [property damage][bodily injury] because [facts].

Question 170

Strict Liability Design Defect Third…pure economic loss

Answer 170

P’s pure economic loss of [facts] is not harm for purposes of strict liability.

Question 171

Strict Liability Design Defect Fourth…but for

Answer 171

Fourth, the design defect must be the actual cause of P’s harm. A design defect is the actual cause of P’s harm if the harm would not have occurred but for the defect. Here, the defect is the actual cause of P’s harm because the harm would not have occurred if [facts]. Thus, the defect is the actual cause of P’s harm.

Question 172

Strict Liability Design Defect Fourth…chain of events

Answer 172

Fourth, the design defect must be the actual cause of P’s harm. The design defect is the actual cause of P’s harm if the defect started a chain of events that would not have occurred but for the defect. Here, but for the defect, [x, y and z] would not have occurred and P would not have been harmed.

Question 173

Strict Liability Design Defect Fourth…concurrent causes

Answer 173

Fourth, the design defect must be the actual cause of P’s harm. If there were multiple actors or actions and the conduct of one party alone would not have caused the harm and the harm is indivisible, both parties will be jointly liable unless they can prove what portion of the harm was caused by each. Here, the design defect and [actor] caused the harm but the harm is indivisible because [facts]. Thus, both will be considered the actual cause of P’s harm.

Question 174

Strict Liability Design Defect Fourth…substantial factor

Answer 174

Fourth, the design defect must be the actual cause of P’s harm. If there were two or more actors and any one actor’s conduct was sufficient to cause the harm, both actors are liable for P’s harm. Here, the design defect and x both contributed to P’s harm because [facts]. [Facts] indicate either would have been sufficient to cause the entire injury. Those both will be considered the actual cause of P’s harm.

Question 175

Strict Liability Design Defect Fourth…alternative cause

Answer 175

Fourth, the design defect must be the actual cause of P’s harm. If two or more actors contributed to P’s harm but it is impossible to tell which caused the injury, each will be liable for the full extent of the harm. Here, because [facts] indicate both D and X contributed to the harm and it is impossible to tell who caused the injury, both will be considered the actual cause of the harm.

Question 176

Strict Liability Design Defect Fifth..Issue

Answer 176

Fourth, the design defect is the proximate cause of P’s harm if the harm results because of the unreasonably dangerous nature of the defect.

Question 177

Strict Liability Design Defect Fifth…remote

Answer 177

However, the design defect is not the proximate cause of P’s harm if it is too remote in time and space. Here, D’s possession is not the proximate cause because [facts] mean the harm was too remote in time or space.

Question 178

Strict Liability Design Defect Fifth…unforeseeable misuse

Answer 178

The design defect is not the proximate cause of harm if it results from P’s unforeseeable use of the product. Here, D’s use of the product to do [facts] was unforeseeable because [facts].

Question 179

Strict Liability Design Defect Fifth..intervening

Answer 179

The design defect is the proximate cause of P’s harm even though the danger created by design defect resulted in harm he had no reason to expect due to negligence of a third-party , or force of nature. Here, the design defect is the proximate cause of P’s harm because [facts].

Question 180

Strict Liability Design Defect Fifth…eggshell skull

Answer 180

Foreseeability of the extent of harm is not required. The design defect the proximate cause of all harm sustained by P even though [facts] made her harm greater than that of an ordinary person.

Question 181

Strict Liability Design Defect..Defenses

Answer 181

Duty to mitigate, contributory negligence, assumption of the risk, comparative responsibility, State-of-the Art, as safe as competitors

Question 182

Strict Liability Design Defect…Defenses State-of-the-Art

Answer 182

D will likely raise the State-of-the-Art defense, which provides that if D can show at the time the product was manufactured, the state of the art did not allow for the production of a safer product at an acceptable price, the product will be found nondefective. Here, [facts] indicate the state-of-the-industry did not allow for production of a safer alternative at a lower price because [facts]. Thus, D will likely be successful and will not be strictly liable for P’s harm.

Question 183

Strict Liability Design Defect…Defenses safe as competitors

Answer 183

D will likely argue that the design is not defective because it is as safe as the same product manufactured by competitors. However, this defense will most likely fail because most jurisdictions do not recognize this defense. It is not a reasonable defense because the entire industry may have been lagging in installing safety devices.

Question 184

Strict Liability Design Defect…Defenses Duty to Mitigate

Answer 184

D may argue that he is not responsible for all or some of P’s harm because P failed to fulfill her duty to mitigate the harm. Here, P had a duty to mitigate harm that could be avoided. P did not do [facts], so D will not be liable for [x].

Question 185

Strict Liability Design Defect..Defenses Contributory Negligence

Answer 185

If the jurisdiction recognizes contributory negligence, D may argue that because P did [facts] she was contributorily negligent which absolves his liability. However, this argument will fail because contributory negligence is not a defense to strict liability.

Question 186

Strict Liability Design Defect..Defenses Assumption of the Risk

Answer 186

However, in those jurisdictions, D may be able to assert a defense of assumption of the risk if he can show P knowingly and voluntarily came into contact with the Domestic animal. Here, [facts] indicate P knowingly and voluntarily assumed the risk because [facts].

Question 187

Strict Liability Design Defect…Defenses Comparative Responsibility

Answer 187

If the jurisdiction recognizes comparative responsibility for strict liability torts, D will argue that his liability should be reduced because P was also negligent. He will argue P was negligent because [facts]. This argument will likely succeed because [facts].

Question 188

Strict Liability Design Defect…Defenses Comparative Responsibility Impact

Answer 188

In a pure comparative negligence jurisdiction, P’s recovery will be reduced by the percentage of the harm attributed to her. In a modified jurisdiction, P’s harm will be reduced by the percentage of the harm attributed to her. However, if her percentage exceeds 50%, she will not recover.

Question 189

Strict Liability Informational Defect Issue

Answer 189

The issue is whether D is strictly liable to P because [product] caused P harm

Question 190

Strict Liability Informational Defect Definition

Answer 190

Commercial sellers are strictly liable for harm caused by products they manufacture or sell even if they exercise all reasonable care.

Question 191

Strict Liability Informational Defect Elements

Answer 191

To succeed, P must prove with a preponderance of evidence that 1) D was a commercial seller who owed her a duty to do no harm, 2) D breached that duty, 3) P was harmed by the breach; 4) D’s breach was the actual cause of the harm, and 5) the proximate cause of the harm.

Question 192

Strict Liability Informational Defect First…issue

Answer 192

First, D owed P a duty to do no harm if he is a commercial seller.

A commercial seller is is anyone in the line of distribution of a product who regularly sold the product that caused P’s harm.

Here, D was a commercial seller of [product] because [facts].

Question 193

Strict Liability Informational Defect First…line of distribution

Answer 193

All commercial sellers in the line of distribution are liable. No privity is required. Here, D owes a duty to P even though he [facts].

Question 194

Strict Liability Informational Defect First…casual seller or used goods

Answer 194

Casual sellers and sellers of used goods are not commercial sellers. Here, D is not liable because [facts] means she is a casual seller.

Question 195

Strict Liability Informational Defect Second…Informational defect

Answer 195

Second, D breached his duty if the product caused harm due to failure-to-warn (FTW) defect.

A FTW defect exists when the foreseeable risks of harm could have been avoided:

1) by the provision of reasonable instructions or warnings, and

2) omission of the instructions or warnings renders the product unreasonably dangerous.

Question 196

Strict Liability Informational Defect Second…adequate warnings/instructions

Answer 196

Adequate warnings or instructions should:
a) alert P to the existence and nature of the risks posed by the product,
b) instruct P how to use it safely, and
c) describe dangers that exist if P misuses the product in a reasonably foreseeable manner.

Here, [product] had a FTW defect because [facts].

Question 197

Strict Liability Informational Defect Second…unreasonably safe absent a warning

Answer 197

No breach exists unless the product is unreasonably dangerous absent the warning. Here, the product was not unreasonably dangerous absent a warning because [facts].

Question 198

Strict Liability Informational Defect Second obvious dangers

Answer 198

No breach occurs if D did not warn of obvious dangers. D may argue that the dangers of [product] are obvious and thus he should be not be strictly liable because he had no duty to warn. However this argument will likely fail because [facts].

Question 199

Strict Liability Informational Defect Second…. unknown dangers

Answer 199

D has no duty to FTW around unknown dangers at the time of manufacture or distribution of the product.

Here, [danger] was unknown at the time of manufacture/distribution to P because [facts]. Thus, D had no duty to FTW around it so did not breach his duty to do no harm.

Question 200

Strict Liability Informational Defect Second…substantially same condition

Answer 200

The warnings or instructions must have been in substantially the same conduct when it reached P as when it left D’s control. Here, they were in substantially the same condition because [facts].
Thus, D breached his duty of care.

Question 201

Strict Liability Informational Defect Second…unknowable dangers

Answer 201

D had no duty to warn of dangers that were unknowable at the time of manufacture or distribution of the product. Here, D had no duty to warn of [danger] because [facts].

Question 202

Strict Liability Informational Defect Second…defect existence at time product left D’s control

Answer 202

The FTW defect had to exist at the time the product left D’s control. Here, the FTW defect did not exist at the time it left D’s control because [facts].

Question 203

Strict Liability Informational Defect Third…

Answer 203

Third, P must suffer recoverable harm. For strict liability torts, recoverable harm includes property damage or bodily injury. Here, P suffered [property damage][bodily injury] because [facts].

Question 204

Strict Liability Informational Defect Third…pure economic loss

Answer 204

P’s pure economic loss of [facts] is not harm for purposes of strict liability.

Question 205

Strict Liability Informational Defect Fourth…but for

Answer 205

Fourth, the FTW defect is the actual cause of P’s harm if the harm would not have occurred but for the defect.

Here, the defect is the actual cause of P’s harm because the harm would not have occurred if [facts]. Thus, the defect is the actual cause of P’s harm.

Question 206

Strict Liability Informational Defect Fourth…heeding presumption

Answer 206

Most court’s allow an inference that P would have read and heeded the warning if it had been adequately included. This is a rebuttable presumption and actual causation will not be satisfied if D presents evidence that P would not have read the warning.

Here, there is no evidence that P would not have read or heeded the warning if it had been included thus the FTW defect will be determined to be the actual cause of P’s harm.

Question 207

Strict Liability Informational Defect Fourth…chain of events

Answer 207

Fourth, the FTW defect must be the actual cause of P’s harm. The FTW defect is the actual cause of P’s harm if the defect started a chain of events that would not have occurred but for the defect. Here, but for the defect, [x, y and z] would not have occurred and P would not have been harmed.

Question 208

Strict Liability Informational Defect Fourth…concurrent causes

Answer 208

Fourth, the FTW defect must be the actual cause of P’s harm. If there were multiple actors or actions and the conduct of one party alone would not have caused the harm and the harm is indivisible, both parties will be jointly liable unless they can prove what portion of the harm was caused by each. Here, the FTW defect and [actor] caused the harm but the harm is indivisible because [facts]. Thus, both will be considered the actual cause of P’s harm.

Question 209

Strict Liability Informational Defect Fourth…substantial factor

Answer 209

Fourth, the FTW defect must be the actual cause of P’s harm. If there were two or more actors and any one actor’s conduct was sufficient to cause the harm, both actors are liable for P’s harm. Here, the FTW defect and x both contributed to P’s harm because [facts]. [Facts] indicate either would have been sufficient to cause the entire injury. Those both will be considered the actual cause of P’s harm.

Question 210

Strict Liability Informational Defect Fourth…alternative cause

Answer 210

Fourth, the FTW defect must be the actual cause of P’s harm. If two or more actors contributed to P’s harm but it is impossible to tell which caused the injury, each will be liable for the full extent of the harm. Here, because [facts] indicate both D and X contributed to the harm and it is impossible to tell who caused the injury, both will be considered the actual cause of the harm.

Question 211

Strict Liability Informational Defect Fifth..Issue

Answer 211

Fourth, the FTW is the proximate cause of P’s harm if the harm results because of the unreasonably dangerous nature of the defect.

Question 212

Strict Liability Informational Defect Fifth…remote

Answer 212

However, the FTW defect is not the proximate cause of P’s harm if it is too remote in time and space. Here, D’s possession is not the proximate cause because [facts] mean the harm was too remote in time or space.

Question 213

Strict Liability Informational Defect Fifth…unforeseeable misuse

Answer 213

The FTW defect is not the proximate cause of harm if it results from P’s unforeseeable use of the product. Here, D’s use of the product to do [facts] was unforeseeable because [facts].

Question 214

Strict Liability Informational Defect Fifth..intervening

Answer 214

The FTW defect is the proximate cause of P’s harm even though the danger created by FTW defect resulted in harm he had no reason to expect due to negligence of a third-party , or force of nature. Here, the FTW defect is the proximate cause of P’s harm because [facts].

Question 215

Strict Liability Informational Defect Fifth…eggshell skull

Answer 215

Foreseeability of the extent of harm is not required. The FTW defect the proximate cause of all harm sustained by P even though [facts] made her harm greater than that of an ordinary person.

Question 216

Strict Liability Informational Defect..Defenses

Answer 216

Duty to mitigate, contributory negligence, assumption of the risk, comparative responsibility, State-of-the Art, as safe as competitors

Question 217

Strict Liability Informational Defect…Defenses State-of-the-Art

Answer 217

D will likely raise the State-of-the-Art defense, which provides that if D can show at the time the product was manufactured, the state of the art did not allow for the production of a safer product at an acceptable price, the product will be found nondefective. Here, [facts] indicate the state-of-the-industry did not allow for production of a safer alternative at a lower price because [facts]. Thus, D will likely be successful and will not be strictly liable for P’s harm.

Question 218

Strict Liability Informational Defect…Defenses - as safe as competitors

Answer 218

D will likely argue that the FTW is not defective because it is as safe as the same product manufactured by competitors. However, this defense will most likely fail because most jurisdictions do not recognize this defense. It is not a reasonable defense because the entire industyr may have been lagging in installing safety devices.

Question 219

Strict Liability Informational Defect…Defenses Duty to Mitigate

Answer 219

D may argue that he is not responsible for all or some of P’s harm because P failed to fulfill her duty to mitigate the harm. Here, P had a duty to mitigate harm that could be avoided. P did not do [facts], so D will not be liable for [x].

Question 220

Strict Liability Informational Defect..Defenses Contributory Negligence

Answer 220

If the jurisdiction recognizes contributory negligence, D may argue that because P did [facts] she was contributorily negligent which absolves his liability. However, this argument will fail because contributory negligence is not a defense to strict liability.

Question 221

Strict Liability Informational Defect..Defenses Assumption of the Risk

Answer 221

However, in those jurisdictions, D may be able to assert a defense of assumption of the risk if he can show P knowingly and voluntarily came into contact with the Domestic animal. Here, [facts] indicate P knowingly and voluntarily assumed the risk because [facts].

Question 222

Strict Liability Informational Defect…Defenses Comparative Responsibility

Answer 222

If the jurisdiction recognizes comparative responsibility for strict liability torts, D will argue that his liability should be reduced because P was also negligent. He will argue P was negligent because [facts]. This argument will likely succeed because [facts].

Question 223

Strict Liability Informational Defect…Defenses Comparative Responsibility Impact

Answer 223

In a pure comparative negligence jurisdiction, P’s recovery will be reduced by the percentage of the harm attributed to her. In a modified jurisdiction, P’s harm will be reduced by the percentage of the harm attributed to her. However, if her percentage exceeds 50%, she will not recover.

Question 224

Intentional Misrepresentation Issue

Answer 224

The issue is whether D is liable to P for making a misrepresentation of a material fact when he did [facts].

Question 225

Intentional Misrepresentation Defined

Answer 225

One who by a fraudulent misrepresentation or nondisclosure of a fact that it is his duty to disclose causes physical harm to the person or to the land or chattel of another who justifiably relies upon the misrepresentation, is subject to liability to the other.

Question 226

Intentional Misrepresentation Elements

Answer 226

To prove fraudulent misrepresentation, P must prove with a preponderance of evidence that

1) D misrepresented a material fact to P,

2) D knew the representation was false or he did not have the knowledge he claimed to have,

3) D intended to induce D’s reliance on the misrepresentation,

4) P actually relied on it,

5) the reliance was justifiable, and

6) P suffered damages.

Question 227

Intentional Misrepresentation First…material fact

Answer 227

First, D misrepresented a material fact to P if he mislead P about a fact concerning the quality, nature or appropriate use of the product on which a normal buyer may be expected to rely.

Here, D misrepresented a material fact because a normal buyer would expect to rely on [what]. But D did [facts].

Question 228

Intentional Misrepresentation First…puffery

Answer 228

Puffery and statements of opinion are generally not sufficient. Here, D’s statements were puffery because [facts].

Question 229

Intentional Misrepresentation First…failure to disclose

Answer 229

Failure to disclose a fact does not result in misrepresentation unless
1) D had a fiduciary duty,
2) failure to disclose resulted in a half-truth,
3) subsequent information would make previously disclosed facts inaccurate, or
4) the fact was basic to the transaction.

Here, D’s failure to disclose [fact] did not result in a misrepresentation because [facts].

Question 230

Intentional Misrepresentation Second..

Answer 230

Second, D must have intentionally misrepresented the material fact, or recklessly misrepresented it because he did not have the knowledge he claimed to have.

Here, D [intentionally][recklessly] misrepresented the material fact because [facts].

Question 231

Intentional Misrepresentation Third….

Answer 231

Third, D must have intended to induce D’s reliance on the misrepresentation. Here, D intended to induce D’s reliance on the misrepresentation because [facts].

Question 232

Intentional Misrepresentation Fourth…

Answer 232

Fourth, P must have actually relied on the misrepresentation.

Reliance may be found where the misrepresentation was a substantial factor in P’s reliance.

Here, P actually relied on the misrepresentation because [facts].

Question 233

Intentional Misrepresentation Fourth…no reliance

Answer 233

No liability exists if the misrepresentation is not known or does not influence the transaction. Here, the misrepresentation [was not known][did not influence the transaction] because [facts].

Question 234

Intentional Misrepresentation Fifth…

Answer 234

Fifth, P’s reliance must have been justifiable. Reliance is generally justifiable unless P overlooked an obvious falsity. Here, P’s reliance was justifiable because [facts].

Question 235

Intentional Misrepresentation Fifth..duty to inspect

Answer 235

P generally has no duty to investigage the truth of the information provided by D.

Question 236

Intentional Misrepresentation Fifth..damages

Answer 236

P can recover for intangible financial loss due to D’s misrepresentation.

Question 237

Negligent Misrepresentaiton Definition

Answer 237

One who by negligent misrepresentation or nondisclosure of a fact that it is his duty to disclose causes physical harm to the person or to the land or chattel of another who justifiably relies upon the misrepresentation, is subject to liability to the other.

Question 238

Negligent Misrepresentation Second…

Answer 238

Second, D negligently made the misrepresentation if a reasonable person should have known such representations to be false when making them.

Question 239

Strict Liability Misrepresentation Definition

Answer 239

One engaged in the business of selling chattels who makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm.

Question 240

Strict Liability Misrepresentation Second…

Answer 240

D is strictly liable to P for misrepresentation because [facts] mean he is a seller of chattels.

Question 241

Damages Compensatory Damages Goal

Answer 241

The goal of compensatory damages is to put P as close as possible to the position he would have been in had the harm not occurred.

Question 242

Damages property damage

Answer 242

P suffered property damage because [facts]. Thus, P may recover compensatory damages for the damage.

Question 243

Damages personal injury scope of damages

Answer 243

Because P suffered physical harm of [facts], P may recover compensatory damages for

a) past and future physical and mental pain,
b) past and future medical expenses,
c) loss of earning capacity,
d) permanent disability and disfigurement,
e) shortened life expectancy,
f) loss of enjoyment of life, where applicable.

Here, P may recover [category] because [facts].

Question 244

Damages personal injury unconcious

Answer 244

Consciousness is generally required for recover of pain and suffering and loss of enjoyment of life. Here, P will not be able to recover for these because [facts].

Question 245

Damages personal injury PV

Answer 245

Courts will generally instruct the jury to aware the plaintiff the present value of these losses, especially where lost future earnings and future medical expenses are concerned. PV is equal to the future value over 1+ an assumed interest rate, raised to the number of years in the future.

Question 246

Damages personal injury inflation

Answer 246

Many courts do not allow the jury to consider the impact of inflation.

Question 247

Damages personal injury taxation of award

Answer 247

Any recovery for personal injury is tax-free at the federal level.

Question 248

Damages reimbursement by third-parties

Answer 248

The collateral source rule provides that P can recover for out-of-pocket expenses even if she is reimbursed for those expenses by a third-party.

However, no double dipping is generally allowed. The third-party is usually subrogated to the rights of P and has the right of reimbursement by P out of any damage award.

Question 249

Damages duty to mitigate

Answer 249

P has a duty to mitigate damages and cannot recover for any damages she could have avoided.

Question 250

Damages pure economic loss

Answer 250

A majority of jurisdictions do not permit recovery for pure economic loss in negligence and strict liability claims. Economic loss is damage to a product itself or monetary loss caused by a defective product which does not cause personal injury or damage to other property.

Question 251

Damages consequential economic loss

Answer 251

However, P may be able to recover for consequential economic loss that is a result of financial harm to P as a result of physical harm or property damage.

Question 252

Damages - workman’s compensation

Answer 252

D’s injury while in service of his employer is generally limited to recovery only by workman’s compensation insurance.

Workman’s compensation does not allow recovery for pain and suffering.

However, P can recover in tort if the employer intentional caused the harm or if a third-party caused the harm while P was in service of his employer.

Question 253

Defamation Issue

Answer 253

The issue is whether P can recover from D for defamation because D did [facts].

Question 254

Defamation Definition

Answer 254

One who publishes a false and defamatory statement that injures another’s reputation may be liable for the injury.

Question 255

Defamation Elements

Answer 255

To prevail in a defamation claim, P generally must prove with a preponderance of evidence that

1) D published a statement;

2) the statement was false and defamatory,

3) the statement was of and concerning P, that

4) D acted at least negligently as to the falsity of the statement, and

5) there is either actionability without special harm, or the existence of special harm.

Question 256

Defamation Type of P/type of matter

Answer 256

Due to 1st Amendment Constitutional concerns, the rules applicable to some of the elements of the claim depend upon whether P is a public plaintiff and whether the matter is one of public concern.

Question 257

Defamation - public official/figure

Answer 257

A public official or figure is someone who has a policymaking role in government or who voluntarily thrusts himself into the public spotlight.

Here, P is [not] a public official or figure because [facts].

Question 258

Defamation - public matter

Answer 258

A matter is of public concern if it relates to a matter of social or political concern or is the subject of legitimate news interest. Here, the matter is of public concern because [facts].

Question 259

Defamation - type of P/matter impact on proving falsity

Answer 259

Because the matter is not of public concern courts can require D or P to prove falsity of the statement.

Or

Because the matter is of public concern, P must prove falsity of the statement.

Question 260

Defamation - type of P/matter impact on fault

Answer 260

Claims involving public officials and matters of public concern require actual malice.
Claims involving private plaintiffs and private matters require negligence.

Question 261

Defamation - type of P/matter presumed damages

Answer 261

Finally, [a libel or slander per se claim is actionable without the existence of special harm.][P must prove special harm unless she proves D acted with actual malice].

Question 262

Defamation First…

Answer 262

First, D published a statement if he communicated, by words or actions to someone other than P who understood the statement.

Question 263

Defamation First…intent

Answer 263

D intentionally published a statement if he acted for the purpose of communicating it to a third person or with knowledge that it as substantially certain to be so communicated. Here, D intentionally published the statement because [facts].

Question 264

Defamation First…negligently

Answer 264

D negligently published a statement because he failed to recognize an unreasonable risk that the statement would be published to a third-party.

Here, D negligently pubilished the statement because [facts].

Question 265

Defamation First…mistaken identify

Answer 265

The statement was published even if D intended to publish it to someone other than the person to whom it was published.

Question 266

Defamation First…republishing statement of another

Answer 266

D is liable for republishing a statement made by another.

Question 267

Defamation First…republishing by another

Answer 267

D is also liable for the republishing of the statement by another party.

Question 268

Defamation Second…falsity

Answer 268

Second, the statement must be false and defamatory. [P][D] must prove falsity in this case. Slight inaccuracies are immaterial provided the statement is true in substance. Here, [D][P] will argue [facts and argument].

Question 269

Defamation Second… defamatory meaning

Answer 269

A statement is defamatory if it a) might arouse Scorn, Hatred, Obloquy, Contempt, Shame in right thinking people, or

2) it tends to harm P’s reputation in the community or deters third parties from associating with her.

Question 270

Defamation Second…factual statement

Answer 270

Statements of fact are always capable of defamatory meaning.

Question 271

Defamation Second….opinion

Answer 271

Opinions are not capable of defamatory meaning unless they imply the allegation of undisclosed defamatory facts as the basis for the opinion.

Question 272

Defamation Second…meaning of statement

Answer 272

The meaning of a communication is that which the recipient correctly or mistakenly but reasonably understands that it was intended to express.

Question 273

Defamation Second…ambigous

Answer 273

If the statement is ambiguous and capable of multiple meanings, its meaning is that which a reasonable person would interpret it to be.

Question 274

Defamation Second…context

Answer 274

The defamatory meaning must be determined in context with the entire publication.

Question 275

Defamation Second…analysis

Answer 275

The meaning of the statement is defamatory because [facts] would tend to [arouse hatred, contempt, scorn or shame in right-thinking people because [analysis].

Question 276

Defamation Second…name calling

Answer 276

Mere name calling is opinion and not defamatory.

Question 277

Defamation Second…hyperbole

Answer 277

Hyperbole is generally treated as opinion, not a statement of fact that can be proven true or false, especially in reviews of books, movies or restuarants.

Question 278

Defamation Second…defamatory only to a few

Answer 278

It is enough that the communication would tend to harm P’s reputation in the eyes of a substantial and respectable minority of the community.

Question 279

Defamation Second…actual harm not required

Answer 279

It is not required that P’s reputation actually be harmed for the statement to have defamatory meaning.

Question 280

Defamation Second…social misfits

Answer 280

Communications that would harm P’s reputation only to a group whose standards are so anti-social that it is not proper for the courts to recognize them are not actionable defamatory statements.

Question 281

Defamation Second…dead plaintiff

Answer 281

A statement made about a deceased individual is not defamatory because I t is not legally possible to defame someone who is deceased.

Question 282

Defamation Third…issue

Answer 282

Third, the statement must be of and concerning P.

The statement was of and concerning P if the recipients correctly, or mistakenly but reasonably understood that it was intended to refer to P.

Question 283

Defamation Third…ref to large group

Answer 283

P is not identified if she is part of a large group that is identified by the statement. Courts generally find a group of more than 25 to be a large group.

Question 284

Defamation Third…ref to small group

Answer 284

P may be identifiable if she is part of a small group that was being defamed. Courts generally find a group of 25 or less to be a small group.

Question 285

Defamation Fourth…issue

Answer 285

Fourth, D must have acted with [actual malice][at least negligence] as to the falsithy of the statement.

Question 286

Defamation Fourth…actual malice definition

Answer 286

D acted with actual malice if he either knew the statement was false or acted with reckless disregard as to the falsity.

Question 287

Defamation Fourth…reckless disregard

Answer 287

D acted with reckless disregard if he consciously disregared serious doubts as to the truth of the statement.

Question 288

Defamation Fourth…negligence

Answer 288

D acted negligently because his conduct created a reasonable risk that the statement was false. D acted negligently unless he acted reasonably in checking on the truth or falsity of the statement before publishing it.

Question 289

Defamation…Fifth

Answer 289

Fifth, the claim must be actionable without proof of special harm, or P must prove special harm.

Proof of special harm is required in cases involving public plaintiffs and/or public concerns unless P proves actual malice as to the falsity of the defamatory statements.

For all other cases special harm is required for cases of slander that do not qualify as slander per se.

Question 290

Defamation Fifth…libel vs. slander

Answer 290

Libel is written or otherwise permanent defamatory communications.

Slander is spoken material that is not otherwise permanent.

Statements published over radio or television broadcasts are always libel even if spoken.

Question 291

Defamation Fifth…slander per se

Answer 291

Statements that are slander may still be actionable without proof of special harm if they are “slander per se”.

A statement is slander per se if it accuses P of

a) a crime of moral turpitude,

b) having a loathsome disease,

c) gross sexual misconduct, or

d) unfitness for employment or position.

Question 292

Defamation Fifth…special harm required?

Answer 292

P will [not] have to prove special harm because [reasons].

Question 293

Defamation Fifth…special harm defined

Answer 293

Special harm is harm of a pecuniary nature.

Question 294

Defamation and Invasion of Privacy Defenses

Answer 294

Consent, Absolute privileges, qualified privileges

Question 295

Absolute Privileges -types

Answer 295

1) Judicial proceedings,
2) Legislative proceedings,
3) Executive,
4) Compelled communications,
5) spousal communications

Question 296

Absolute Privileges - judicial

Answer 296

Judges, witness, attorneys, jurors and other court offices are absolutely privileged to defame another if the defamatory statement was made in the course of judicial proceedings and related to the proceedings.

Question 297

Absolute Privileges -legislative officer

Answer 297

Legislative offers are absolutely privileged to defame P if the defamatory statement was made in the course of federal or state legislative proceedings, even if it did not relate to the matter being discussed in the proceeding.

Question 298

Absolute Privileges - executive

Answer 298

Executive governemental officers are absolutely privileged to defame others in statements made in the course of their role as an executive.

Question 299

Absolute Privileges - compelled

Answer 299

One who is compelled to make publications by law are absolutely privileged to defame.

Question 300

Absolute Privileges - spousal

Answer 300

D is absolutely privileged to make defamatory statements to his spouse.

Question 301

Qualified Privileges - types

Answer 301

1) fair reporting,
2) fair comment,
3) public interest,
4) private interest

Question 302

Qualified Privileges - fair reporting

Answer 302

A member of the news media has a qualified privilege to publish defamatory statements if he is fairly and accurately reporting on or summarizing an official proceeding or public meeting that dealt with a matter of public concern. The privilege is abused if the report is not fair and accurate.

Question 303

Qualified Privileges - fair comment

Answer 303

One has a a qualified privilege to defame if the statement is:

a) an opinion or criticism,

b) based on facts disclosed or generally known,

c) the facts were true, assumed or gleaned from a prior statement, and

d) concerned matters of public interest.

Question 304

Qualified Privileges - public interest

Answer 304

One has a qualified privilege to defame if the statement was communicated to a public official regarding a matter of public interest that falls within the official’s duties.

Question 305

Qualified Privileges - private interest

Answer 305

One has a qualifed privilege to defame if the statement was made in support of the private interests of himself or a third party if he reasonably believed

a) the matter pertains to a sufficiently important private interest, and
b) communicating the statement is necessary to proctect the interest.

Most statement made upon request will be privileged.

Courts also consider the relationship between the parties.

Question 306

Qualified Privileges - abuse

Answer 306

Qualified privileges can be abused if D:

1) published the statement with actual malice,

2) excessively,

3) an unrelated purpose, or

4) if the publication was not reasonably necessary to protect the interests D purported it will protect

Question 307

Defamation Damages

Answer 307

P will be able to recover actual damages. If there are no actual damages, he may be able to recover nominal damages Because she proved actual malice she will also be able to recover punitive damages.

Question 308

IOP Misappropriation - Issue

Answer 308

The issue is whether P can recover from D because D [facts].

Question 309

IOP Misappropriation Definition

Answer 309

One who misappropriates the name or likeness of another for their own benefit without consent is liable for invasion of privacy.

Question 310

IOP Misappropriation Elements

Answer 310

To prove misappropriation, P must prove with a preponderance of the evidence that 1) appropriated her name or likeness, and 2) D did it for his benefit.

Question 311

IOP Misappropriation First…

Answer 311

First, D appropriated P’s name or likeness if he invoked P’s reputation, prestige, social or commercial standing, public interest or other values of P’s name or likeness.

Question 312

IOP Misappropriation First… use of Ps name

Answer 312

P’s name is not appropriated by the mere mention of it in reference to it in connection with his legitimate public affairs.

Question 313

IOP Misappropriation First…non-advertising media content

Answer 313

P’s name or likeness is not appropriated if used in non-advertising content by a media defendant.

Question 314

IOP Misappropriation First…advertising

Answer 314

Use of P’s name or picture in advertising for a book periodical, movie or broadcast is not appropriation unless P is not associated with them.

Question 315

IOP Misappropriation First…broadcast of performance

Answer 315

Broadcast or publishing of details of P’s performance or act is not appropriation. However, broadcast of the entire broadcast may be.

Question 316

IOP Misappropriation Second….

Answer 316

Second, the appropriation must be for D’s commercial, financial or personal benefit, whether pecuniary or non-pecurniary.

Question 317

IOP Misappropriation Second…taking Ps name

Answer 317

Mere adoption of the same name as P is not appropriation unless D passes himself off as P and otherwise seeks to obtain for himself the value or benefits of P’s name or identify.

Question 318

IOP Misappropriation Second…media D reported public info

Answer 318

D’s engagement in the business of publication for profit is not enough to make an incidental publication a commercial benefit of name or likeness.

Question 319

IOP Intrusion Issue

Answer 319

The issue is whether D is liable to P for invasion of privacy because he [facts].

Question 320

IOP Intrusion - definition

Answer 320

One who intrudes upon the seclusion of another is liable for invasion of privacy.

Question 321

IOP Intrusion Elements

Answer 321

To prove intrusion upon seclusion, P must prove with a preponderance of evidence that:

1) D intruded upon P’s seclusion,

2) the intrusion was intentional,

3) the intrusion would be highly offensive to a reasonable person.

Question 322

IOP Intrusion First… issue only

Answer 322

First, D must intrude upon D’s seclusion but intruding upon P’s seclusion, solitude or private affairs or matters.

Question 323

IOP Intrusion First…manners of intrusion

Answer 323

Intrusion can be physical, by use of D’s senses or by some other form of investigation into her private concerns but must be into what is and what is entitled to remain private.

Question 324

IOP Intrusion First….physical intrusion

Answer 324

A physical intrusion can be into P’s home, hotel or hospital room or any other place where she has an expectation of privacy.

Question 325

IOP Intrusion…First…using senses

Answer 325

The use of wiretaps, video cameras and other kinds of secret electronic surveillance, or computer hacking involve the use of D’s senses to intrude into a private place.

Question 326

IOP Intrusion…First….investigation

Answer 326

The mere gathering of information about an individual is not itself an invasion of privacy. The investigation must conducted in a manner that invades P’s private matters to satisfy this element.

Question 327

IOP Intrusion First…public records or info

Answer 327

There is no liability for examination of public records or of documents P is required to keep and make public upon request.

Question 328

IOP Intrusion First…no publicity required

Answer 328

D is liable for intrusion even if he does not give publicity to or otherwise share private information he learned while intruding upon P’s solitude.

Question 329

IOP Intrusion First…analysis/conclusion

Answer 329

Here, D intruded upon Ps seclusion by [method] because [facts]. The invasion was into a private place because [facts]. Optional: The fact that he did not share with any others the information learned does not relieve D of liability.

Question 330

IOP Intrusion….Second…issue

Answer 330

Second, the intrusion must be intentional. D acted with intention if he acted with the purpose of intruding upon P’s seclusion, or acted knowing with substantial certainty it would occur.

Here, D acted [with the purpose of][knowing with substantial certainty ] intrusion upon P’s seclusion because [facts].

Question 331

IOP Intrusion….Third….issue

Answer 331

Third, the intrusion was highly offensive because it was substantial and achieved by conduct a reasonable person would object to.

Question 332

IOP Intrusion…Third….persistence

Answer 332

The persistence and frequency of an intrusion is relative to whether it is highly offensive. If the persistence and frequency because a substantial burden to P’s existence, they are highly offensive.

Question 333

IOP Intrusion…Third…annoyance

Answer 333

Mere annoyance is not sufficient to result in highly offensive conduct.

Question 334

IOP Intrusion…Third..media and newsworhty info

Answer 334

D’s status as a member of the media gathering news worthy information on a matter of public concern may allow for a higher threshold before the conduct is considered highly offensive.

Question 335

IOP Intrusion Third..analysis/conclusion

Answer 335

Here, D’s intrusion was highly offensive because a reasonable person would object to [facts]. It was substantial because it was persistent and of sufficient frequency to put a substantial burden on P’s existence because [facts].

Question 336

IOP Intrusion Defenses

Answer 336

Consent, absolute privileges, qualified privileges

Question 337

IOP Public Disclosure Issue

Answer 337

The issue is whether D is liable to P for [facts indicating he disclosed infor about P].

Question 338

IOP Public Disclosure Definition

Answer 338

One who discloses a private fact about another without permission is liable for invasion of privacy.

Question 339

IOP Public Disclosure Elements

Answer 339

To prove invasion of privacy by public disclosure of private facts, P must prove with a preponderance of evidence that:
1) D disclosed a fact about P,
2) the fact was private,
3) the disclosure would be highly offensive to a reasonable person, and
4) the private fact did not relate to a matter of legitimate public concern.

Question 340

IOP Public Disclosure First…issue

Answer 340

First, D must disclose a fact about P.

Question 341

IOP Public Disclosure First..publicity

Answer 341

D discloses a fact when he gives publicity to it by communicating it to the public at large or to so many persons that the matter is substantially certain to become one of public knowledge.

Question 342

IOP Public Disclosure First..small group

Answer 342

It is not disclosure to communicate a fact to only one person or a small group.

Question 343

IOP Public Disclosure First…media

Answer 343

Any publication through mass media or broadcast results in giving publicity even if the audience is small.

Question 344

IOP Public Disclosure First…internet posting

Answer 344

Disclosure on a public website or any site that can be accessed by many people likely results in giving publicity to a fact.

Question 345

IOP Public Disclosure First…journalist

Answer 345

Knowing disclosure by D to a journalist who is expected to publicize the fact may be sufficient.

Question 346

IOP Public Disclosure First…identify P

Answer 346

P must be identifable as the person to whom the fact pertains.

Question 347

IOP Public Disclosure First…about 3rd party

Answer 347

D’s disclosure of a fact about another person may result in publicity if P if the fact relates to P and P is identifiable by the disclosure.

Question 348

IOP Public Disclosure First..analysis/conclusion

Answer 348

Here, D disclosed [facts] to the public at large because [facts]. P was identifiable as the person to whom the fact pertains because [facts]. Thus, D disclosed a fact about P.

Question 349

IOP Public Disclosure Second..issue

Answer 349

Second, the fact must be private. Private facts are facts not known or available beyond a small number of people.

Question 350

IOP Public Disclosure Second…not private

Answer 350

Facts which are a) part of public record, 2) noticeable when P is in public, or 3) widely shared by P are not private.

Question 351

IOP Public Disclosure Second..P shared with small group

Answer 351

P sharing a fact with selected neighbors, friends, family, medical providers or public officials involved in an issue does not make a fact public.

Question 352

IOP Public Disclosure Second…analysis/conclusions

Answer 352

Here, the fact D shared was private because [facts].

Question 353

IOP Public Disclosure Third…issue

Answer 353

Third, disclosure of the private fact is highly offensive it a reasonable person would feel justified in feeling seriously aggrieved by it.

Question 354

IOP Public Disclosure Third…scope

Answer 354

Liability is generally limited to disclosure of the most intimate, sensitive, or embarassing personal matters.

Question 355

IOP Public Disclosure Third…not offensive

Answer 355

The ordinary, reasonable man would not take offense to disclosure of facts about his normal day-to-day activities.

Question 356

IOP Public Disclosure Fourth..issue

Answer 356

Fourth, the issue must not be one of legitimate public concern.

Matters of legitimate public concern are generally matters considered newsworthy.

The defintion of newsworthy is broad an includes matters of popular appeal, even if distasteful, for education and for amusement.

Question 357

IOP Public Disclosure Fourth..fact connected

Answer 357

A fact is of legitimate public concern when it has some connection with a topic of legitimate public concern.

Question 358

IOP Public Disclosure Fourth…P connected

Answer 358

An individual’s connection with a topic of legitimate public concern is usually newsworthy.

Question 359

IOP Public Disclosure Fourth..P is public

Answer 359

A person’s status as a public official/figure extends the definition of facts of legitimate public concern to include matters that may not otherwise be newsworthy.

Question 360

IOP False Light Issue

Answer 360

The issue is whether D is liable to P for [facts indicating he put P in false light].

Question 361

IOP False Light Defintion

Answer 361

One who discloses information in a manner that puts another in a false light is liabile for invasion of privacy.

Question 362

IOP False Light Elements

Answer 362

To prove a false light invasion of privacy claim, P must prove with a preponderance of evidence that:

1) D gave publicity to a matter concerning P,
2) the publicity placed P in a false light,
3) the false light would be highly offensive to a reasonable person, and
4) D acted with negligence unless actual malice is required due to 1st amendment concerns.

Question 363

IOP False Light 1st amendment

Answer 363

As with defamation, the fault requirement depends upon P’s status as either a public or private plaintiff and whether the matter is of public concern. Here, since P is a public figure/official or the matter is of public concern, P must prove actual malice.

Question 364

IOP False Light First…issue

Answer 364

First, D must give publicity to a matter concerning P. D gives publicity to a matter when it is communicated to the public at large or to so many persons that the matter is substantially certain to become one of public knowledge.

Question 365

IOP False Light First..small group

Answer 365

It is not disclosure to communicate a fact to only one person or a small group.

Question 366

IOP False Light First…media

Answer 366

Any publication through mass media or broadcast results in giving publicity even if the audience is small.

Question 367

IOP False Light First…internet posting

Answer 367

Disclosure on a public website or any site that can be accessed by many people likely results in giving publicity to a fact.

Question 368

IOP False Light First…journalist

Answer 368

Knowing disclosure by D to a journalist who is expected to publicize the fact may be sufficient.

Question 369

IOP False Light First…identify P

Answer 369

P must be identifable as the person to whom the fact pertains.

Question 370

IOP False Light First…about 3rd party

Answer 370

D’s disclosure of a fact about another person may result in publicity if P if the fact relates to P and P is identifiable by the disclosure.

Question 371

IOP False Light First..analysis/conclusion

Answer 371

Here, D disclosed [facts] to the public at large because [facts]. P was identifiable as the person to whom the fact pertains because [facts]. Thus, D disclosed a fact about P.

Question 372

IOP False Light Second…issue

Answer 372

Second, the publicity must place P in a false light. Publicity places P in a false light when it attributes to him attributes, beliefs or conduct that are false and which put him before the public in a false position.

Question 373

IOP False Light Second…analysis/conclusion

Answer 373

Here, the publicity put P in a false light because [facts] attributed to him an [ABC} that was false. This attribution was false because [facts].

Question 374

IOP False Light Third..issue

Answer 374

Third, the false light is highly offensive if a reasonable person would be justified in the eyes of the community of feeling seriously offended and aggrieved by the publicity.

Question 375

IOP False Light Third…damage to reputation

Answer 375

Statements that are not defamatory can still place P in a false light.

Question 376

IOP False Light Third…minor errors

Answer 376

Most minor errors would not be highly offensive to a reasonable person.

Question 377

IOP False Light Third…analysis/conclusion

Answer 377

Here, the false light was highly offensive because [facts] would justify a reasonable person feeling seriously offended and aggrieved. A reasonable person would fee this way because [facts].

Question 378

IOP False Light Fourth…actual malice

Answer 378

Fourth, D must have acted with actual malice. D acts with actual malice if he acted with knowing the publicity would place P in a false light, or recklessly disregard a high-risk of placing P in a false light.

Question 379

IOP False Light Fourth….reckless

Answer 379

D recklessly disregarded a high risk of placing P in a false light if he consciously disregard serious concerns he had entertained regarding the potential of false light.

Question 380

IOP False Light Fourth…negligence

Answer 380

Fourth, D acted negligently as to the falsity of the publicity and the false light in which it placed P if he created an unreasonable risk of harm because he did not act reasonably in checking on the truth or falsity of the matter or the manner in which the publicity would place P.

Question 381

IOP Damages

Answer 381

P may recover for a) harm caused by the invasion, b) emotional distress of the kind caused by such invasion, and c) actual har of which the invasion is the factual cause.

Question 382

Survivors vs. Wrongful Death Statute

Answer 382

Survivor statutes allow the victim’s estate to file a claim after the victim’s death for harm to the victim prior to his death.

Wrongful Death Statutes allow certain survivors of the victim to collect for their own harm due to the death.

Question 383

Survivor Statute - type of recovery

Answer 383

Recovery is generally limited to pain and suffering, loss of earnings, and actual medical expenses up to the victim’s death.

Question 384

Survivor Statute - instant death

Answer 384

Many states prevent recovery if the victim’s death was instant.

Question 385

Wrongful Death Statute - who can recover

Answer 385

Recovery is generally limited to spouse or children. Some states allow parents to recover for loss their children.

Question 386

Wrongful Death Statute - who cannot recover

Answer 386

Step-children and unmarried co-habitants likely cannot recover.

Question 387

Wrongful Death Statute - types of recovery

Answer 387

Damages are usually limited to those of pecuniary value including:
1) economic support they would have received
2) value of household services which the decedent performed
3) Loss of companionship
4) Loss of consortium
5) Moral guidance

Question 388

Wrongful Death Statute - defenses

Answer 388

D can assert any defense that he would have been able to assert against the victim, if D is alive.

Question 389

Punitive Damages - when appropriate

Answer 389

Punitive damages are generally limited to intentional torts, or when D acted recklessly or with actual malice.

Question 390

Punitive Damages - limitations

Answer 390

An punitive damage award will violate the due process clause of the federal constitution’s Fourteenth Amendment if it is “grossly excessive.”

Question 391

Punitive Damages - ratio to compensatory damages

Answer 391

The higher the ratio of punitive damages to compensatory damages, the more likely the award violates due process.

Question 392

Workman’s Comp - employer’s liability

Answer 392

The employer is liable for on-the-job injuries even though these occur completely without fault on the part of the employer.

Question 393

Workman’s Comp - employee’s negligence

Answer 393

Employee’s negligence does not reduce the statutory benefits.

Question 394

Workman’s Comp - exclusive remedy

Answer 394

The WC statute is the employee’s sole remedy against the employer.

Question 395

Workman’s Comp - pain and suffering

Answer 395

WC Statutes do not allow for pain and suffering.

Question 396

Workman’s Comp - intentional harm

Answer 396

If P can show that the employer intentionally injured him, the employee may pursue a tort action.

Question 397

Workman’s Comp - injury by 3rd party

Answer 397

P can file a tort action against a 3rd party that injured him while on-the-job.

Question 398

Damages - Additur

Answer 398

Increases the amount of damages awarded—used in some states for punitive damages.

Question 399

Damages - Remititur

Answer 399

Reduces the amount of damages awarded—used in all states and the federal courts.

Question 400

Damages - Impact of Additur or Remittitur

Answer 400

The court is required to give the party adversely affected by the additur or remittitur the opportunity to consent to it as an alternative to a new trial.

Question 401

Damages - Maximum Recovery Rule

Answer 401

If D moves for a remittitur, the Maximum Recovery Rule will come into play. The standard is whether the verdict of the jury exceeds the maximum amount which the jury could reasonably find.

Question 402

Damages - Maximum Recovery Rule - how it works

Answer 402

Court adds up the highest possible award for each element of damages, and if the total actual award is below this number, the remittitur is not granted.

Question 403

Damages - other factors courts consider for excessive

Answer 403

Courts also consider:
1) Whether it “falls outside the range of reasonable and fair compensation”
2) Whether it “results from passion or prejudice”
3) Whether it “shocks the judicial conscience”

Question 404

Damages - consequential economic loss

Answer 404

Damages for economic loss related to personal injury or property damage can be recovered.