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Final Torts II Flashcards

1
Q

Horizontal Privity

A

Who is the proper P?

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2
Q

Vertical Privity

A

Who is the proper D?

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3
Q

Elements of Products Negligence

A

Duty, breach, causation (actual and proximate), damages

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4
Q

Possible Defenses for Products Negligence

A

Contributory, comparative, assumption of the risk

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5
Q

Possible Sellers Liable for Products Negligence

A

All sellers

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6
Q

Express Warranty Elements (4)

A
  1. Assertion of fact is basis of the bargain
  2. Breach
  3. Causation
  4. Damages
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7
Q

Express Warranty Element 1 (with meaning)

A

Assertion of fact as a material representation of the product’s composition, durability, safety as the basis of the bargain that proceeds or accompanies the sale

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8
Q

UCC Assumption for Express Warrant Assertion of Fact

A

UCC presumes buyer’s reliance

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9
Q

Express Warranty Element 2 (with meaning)

A

Breach - product lacks the promised quality

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10
Q

Express Warranty Element 3 (with meaning)

A

Causation - lack os product’s quality is causally linked to a foreseeable harm

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11
Q

Express Warranty Element 4 (with meaning)

A

Damages - PI, prop damage, pure economic loss

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12
Q

Warranty Defenses (4)

A
  1. Lack of reasonable notification after discovering breach
  2. Limitations of liability by D
  3. Comparative negligence
  4. Assumption of the risk
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13
Q

Warranty Horizontal Privity Option 1 (from UCC 2-318)

A

Warranty extends to buyer’s immediate family, household, and guests

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14
Q

Warranty Horizontal Privity Option 2 (from UCC 2-318)

A

Warranty extends to any natural person expected to use, consume, or be affected (covers PI)

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15
Q

Warranty Horizontal Privity Option 3 (from UCC 2-318)

A

Most liberal - extended from Option 2 to cover non-natural person and does not require PI

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16
Q

Difference between SL, Warranties, & Negligence in Products

A

SL focuses on the product
Negligence focuses on the seller’s representation
Warranties focuses on the D’s conduct

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17
Q

SL Products Rstmt 2d 402(a) Elements (4)

A
  1. Commercial seller
  2. Defective condition is unreasonably dangerous (design, manuf., warning)
  3. Causation
  4. Damages
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18
Q

SL Products (2nd element): Manufacturing Defect Meaning

A

Product departs from its intended design and the departure makes product more dangerous

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19
Q

SL Products (2nd element): Manufacturing Defect Application

A

Compare conforming product’s design against non-conforming unit that injured P

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20
Q

SL Products (4th element): Damage types

A

Physical injury, prop damage, - no economic loss unless it flows from phys. or prop. damage

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21
Q

SL Products (2nd element): Design Defect Meaning

A

when the foreseeable risks of harm could have been reduced or avoided by the
adoption of a reasonable alternative design and
the omission renders the product not reasonably
safe- seller may have to recall

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22
Q

SL Products (2nd element): Design Defect 4 Approaches

A
  1. Hindsight risk/utility*
  2. Ordinary risk/utility*
  3. Consumer expectation
  4. Hybrid approach - CA
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23
Q

SL Products (2nd element): Design Defect Risk Factors (9) for Hindsight and Ordinary Approaches

A
  1. Usefulness and desirability of the product
  2. Product’s safety aspects
  3. Availability of safer substitute
  4. Ability to improve (without price or usefulness change)
  5. User’s ability to be careful
  6. Awareness of danger
  7. D’s ability to loss spread
  8. State of the art
  9. Availability of alt. design
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24
Q

SL Products (2nd element): Design Defect - HINDSIGHT RISK/UTILITY APPROACH

A

Based on what the D knows now at the time of trial

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25
SL Products (2nd element): Design Defect - ORDINARY RISK/UTILITY APPROACH
Based on what the D knew at the time of manufacturing
26
SL Products (2nd element): Design Defect - CONSUMER EXPECTATION APPROACH
Gasp Test/Is the product more dangerous than an ordinary consumer would expect?
27
Acronym for Risk Utility Factors
USA I Caught Donald's Larynx
28
Implied Warranty Elements (4)
1. Merchant/commercial seller 2. Breach 3. Failure of warranty 4. Damages
29
Implied Warranty Element 2 (with meaning)
Breach - sale of a good not fit for ordinary purposes
30
Implied Warranty Element 3 (with meaning)
Failure of implied warranty (kinda causation)
31
What section of the UCC determines a proper P and D for warranty actions?
2-318 3 options for P D commercial seller
32
Pro/Con of Warranty Theories
Pro: don't usually need experts so cheaper Cons: notice, limitations of P
33
Tort Rtmt that gives elements for SL Products
Rstmt 2d 402a
34
SL Products (2nd element): Warning Defect - 2 Approaches
1. when D is MANUFACTURER 2. when D is RETAILER
35
SL Products (2nd element): Warning Defect - MANUFACTURER D
D knew or should have known of risks associated with the product
36
SL Products (2nd element): Warning Defect - RETAILER D
D knew or had reason to know of the risks associated with the product
37
SL Products (2nd element): Warning Defect - Sub-rules (5)
Fact specific: 1. state of the art relevant to "knowability" 2. obvious hazards 3. sophisticated users 4. learned intermediary rule 5. post-sale duty to warn
38
SL Products (3rd element): Causation meaning
Defect is actual and proximate cause of P's injury Defect existed when product left D's control (manufacturing Rix ex)
39
Acronym for defamation factors (7)
Doesn't Actually Sniff For Poop, Maybe Diarrhea
40
Public Nuisance Definition
Unreasonable interference with a common right to the general public
41
Examples of common rights for Public Nuisance
Health, Safety, Peace, Comfort, Connivence, Preservation of Community Morality
42
Ways for a private party to have standing for Public Nuisance
Other than a city atty, a private party suffers harm of a different kind from that suffered by the other members of the public
43
Showing of a "substantial unreasonable interference" for Public Nuisance (3)
1. P shows substantial interference with public right 2. P show's D's conduct violates a statute or regulation 3. P shows D's continuing conduct is likely to produce permanent or long-lasting effect & is a substantial detriment to the public
44
Private Nuisance Definition
Non-trespassory invasion in another's interest in the private use & enjoyment of land
45
Elements (2) for Private Nuisance
1. Intentional, negligent, or SL act 2. Act causes a substantial & unreasonable interference with P's use and enjoyment of property
46
Meaning of "substantial" for Private Nuisance
An ordinary landowner would take offense
47
Interpretation/test for "unreasonable" for Private Nuisance Damages (2)
(1) Balance equities (gravity of harm to P > utility of D) OR (2) One time payment because it's more than P should bear without compensation
48
Interpretation/test for "unreasonable" for Private Nuisance Injunction (1)
Balance equities (gravity of harm to P > utility of D)
49
2d Rstmt test for "unreasonable" for Private Nuisance Damages
One time payment because it's more than P should bear without compensation
50
Balancing Equities (7) Factors for "Unreasonable" in Private Nuisance ($ & Injunction)
1. Extend of damage 2. D's conduct = intentional or good faith 3. D's efforts to avoid harm 4. Financial investments 5. Economic hardships of granting or denying relief 6. Public interest in D's activity 7. Who was there first
51
One-time Compensation (5) Factors for "Unreasonable" in Private Nuisance ($)
1. Extent of the interference 2. Character of the interference 3. Social value of P's use of property 4. Suitability of P's use of property to that locale 5. Burden on P to minimize the harm
52
Defense to Public/Private Nuisance - Intentional
Assumption of the risk/consent
53
Defenses to Public/Private Nuisance - Negligent
1. Assumption of the risk 2. Contributory 3. Comparative
54
Defense to Public/Private Nuisance - SL
1. Assumption of the risk 2. Comparative
55
Defamatory Statement (Element 1) Rule
Statement that diminishes the respect, good will, confidence, or esteem in which the P is held OR excited adverse feelings about the P. -(impact among any substantial minority of respectable people)
56
Defamation - Element 1 Sub Rules (2)
Innuendo = statement + inducement
57
About the P (Defamation Element 2) Rule
P must establish that a reasonable person would understand the defamatory statement to refer to P
58
Defamation - Element 2 Sub Rule
Colloquium - When statement does not explicitly refer to P, colloquium demonstrates that a reasonable person would understand the statement as referring to P
59
Falsity (Defamation Element 3) Rule
Essential sting/thrust is untrue. Is the sting/thrust of the statement the same as what happened?
60
Fact v. Actionable Opinion (Defamation Element 4) Rules
1. Verifiable as true or false 2. Actionable opinion when it implies an assertion of objective false facts
61
Publication (Defamation Element 5) Rule
Statement is communicated to a third person and that person hears or reads and understand it
62
Publication (Defamation Element 5) SOM
Intentional (receiving by 3rd party) or negligently (in allowing communication to reach third person)
63
Relevance of Section 230 for Publication (Defamation Element 5)
Interactive computer service immune to liability as long as the content was provided by another
64
General Damages (Defamation Element 6)
presumed by law, need not be proven, compensation for injury to reputation
65
Special Damages (Defamation Element 6)
must be proven, covers pecuniary loss
66
Slander Per Se 4 Categories
1. crime of moral turpitude 2. loathsome disease 3. business, trade, profession 4. unchastity of married woman
67
State of Mind for public officials/figures/candidates for office (Defamation Element 7)
Actual Malice (NYT)
68
State of Mind for Private P on Public Concern (Defamation Element 7)
Negligence (Gertz)
69
State of Mind for Priv P on Priv Concern (Defamation Element 7)
Mostly negligence (Dunn & Bradstreet)
70
Public Official for Defamation Rule
Gov employee who has or appears to have substantial responsibility for or control over government affairs
71
All Purpose Public Figure for Defamation Rule
People who have such pervasive fame that they are public for all purposes
72
Limited Purpose Public Figure for Defamation Rule
a. public controversy b. P thrusts themselves into the controversy c. the defamatory communication concerns the issues related to the controversy
73
Public or Private Concern for Defamation Rule
a. content - what speech is about b. form - how speech is transmitted c. context - how many people did it reach
74
2 Defenses to Defamation
Truth and consent
75
Absolute Privilege for Defamation
Gov proceedings- exec, leg, judicial
76
Conditional Privileges for Defamation
Interest privileges, reports on public proceedings, fair comment
77
False Light Elements (3)
1. Publicity of false facts placing P in false light 2. Highly offensive to a RP 3. Actual Malice
78
Appropriation of Name or Picture Elements (3)
1. Unauthorized use of P's name or pic for D's commercial advantage 2. The invasion is caused by D's conduct 3. Damages - general and special (special need not be proved)
79
Intrusion on Seclusion Elements (3)
1. Prying or intruding into the private affairs or seclusion of P in a way that would be highly offensive to a RP 2. The invasion is caused by D's conduct 3. Damages - general and special (special need not be proved)
80
Public Disclosure of Private Facts about the P Elements (3)
1. Public disclosure (publicity) of priv facts about P that is highly offensive to a RP and not legit public interest 2. The invasion is caused by D's conduct 3. Damages - general and special (special need not be proved)

Torts II (2 decks)

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