MBE Torts Flashcards
A prima facie case in Products Liability based on Strict Liability requires:
“Commercials Produce or Sell Defects with Actual Damages to People or Property” / CPS APD
Imagery: “A commercial supplier sitting in a coffee shop, drinking a mug he produced and sold that has a defect, and the defect causes another to suffer actual and proximate damages to his person and his car (property)”
(1) the defendant is a COMMERCIAL SUPPLIER;
(2) the defendant PRODUCED OR SOLD a DEFECTIVE product;
(3) the defective product was the ACTUAL AND PROXIMATE CAUSE of the plaintiff’s injury;
AND
(4); the Plaintiff suffered DAMAGES to person OR property
In order to prove a defective product –> Courts use a “Feasible Alternative Approach” balancing test –> In a inadequate warning case, Would the injury still have occurred even if there was a Legally Sufficient Warning? Yes –> No recovery
In order to prove a defective product for purposes of Products Liability based on Strict Liability, Courts use a
“Feasible Alternative Approach” balancing test
One of the factors includes AVOIDABILITY OF THE INJURY BY CARE IN USE (including the role of instructions/warnings)
E.g. If injury would still have occurred even if there was a legally sufficient warning –> Can’t prevail on a inadequate warning claim
For a party that was mistaken about the need for force in defending others to still be able to invoke the defense-of-others defense to a claim for battery or another intentional tort, what has to happen?
the mistake MUST have been REASONABLE
If the defendant makes a negligent mistake about whether the third party is in physical danger (i.e. unreasonably believes the third party is in danger) or about whether the proposed physical contact will help avoid danger –> Defendant will not be able to invoke the defense-of-others defense
A plaintiff and a defendant were in the habit of playing practical jokes on each other on their respective birthdays. On the plaintiff’s birthday, the defendant sent the plaintiff a cake containing an ingredient that he knew had, in the past, made the plaintiff very ill. After the plaintiff had eaten a piece of the cake, he suffered severe stomach pains and had to be taken to the hospital by ambulance. On the way to the hospital, the paramedic, who was driving the ambulance, suffered a heart attack, which caused the ambulance to swerve from the road and hit a tree. As a result of the collision, the plaintiff suffered a broken leg.
In a suit by the plaintiff against the defendant to recover damages for the plaintiff’s broken leg, the plaintiff will
A: prevail, because the defendant knew that the cake would be harmful or offensive to the plaintiff.
B: not prevail, because the paramedic was not negligent.
C: not prevail, because the defendant could not reasonably be expected to foresee injury to the plaintiff’s leg.
D: not prevail, because the paramedic’s heart attack was a superseding cause of the plaintiff’s broken leg.
A: prevail, because the defendant knew that the cake would be harmful or offensive to the plaintiff.
BATTERY –> INTENTIONAL TORT –> DEF. KNEW CAKE WOULD BE HARMFUL/OFFENSIVE –> No defense of Consent or Privilege present
*“were in habit of playing practical jokes” is a RED HERRING, doesn’t change liability absent consent or privilege
If an actor consents to a private photograph by an amateur, can the amateur then sell that photo to a company that wants to advertise its product (that is in the photo) by using the pic of the actor and writing that he enjoys the product?
NO.
CLAIM FOR INVASION OF PRIVACY
Commercial appropriation of actor’s likeness for company’s benefit is subject to damages in a claim for INVASION OF PRIVACY
But he said yes to the pic? Yes but Actor consented only to the pic but not to the commercial exploitation of his likeness by Vineyard.
An 80-year-old woman who had been a zoologist for most of her life suffered from Alzheimer’s disease. Due to changes in her brain chemistry caused by the disease, the woman often had false perceptions of objects. One day, a guest at the woman’s senior citizen home approached the woman while wearing a furry coat. The furry coat worn by the guest caused the woman to hallucinate and believe a lion was about to attack her. To protect herself, the woman hit the guest in the head with her cane. The guest sued the woman for battery. The applicable jurisdiction follows the “single-intent” rule for battery.
What is the woman’s best defense?
Answers:
A) The woman believed that she was hitting a lion with her cane.
B) The woman did not comprehend the wrongfulness of her act.
C) The woman did not intend to harm the guest.
D) The woman was trying to protect herself from the guest.
Answer choice A is correct. A defendant is liable for battery if (i) the defendant intended to cause contact with the plaintiff’s person, (ii) the defendant’s affirmative conduct caused such contact, and (iii) that contact caused bodily harm or was offensive to the plaintiff.
In this case, the woman hallucinated and believed the guest was a lion about to attack her.
When she hit the guest with her cane, the woman believed she was hitting a lion, not a person, to protect herself.
Therefore, the woman’s best defense is that she believed she was hitting a lion with her cane.
A mentally impaired individual who does not appreciate the wrongfulness of their act (M’Naghten) may still be liable for an intentional tort if the individual
(i) acts with the purpose of causing the consequences of the act
or
(ii) knowing that the consequence is substantially certain to result.
This is true regardless of whether the individual comprehends the wrongfulness of the act.
PRODUCTS LIABILITY / STRICT LIABILITY
Where it is feasible to install a safety device, a manufacturer does not fulfill its obligation to make a safe product by
warning the purchaser that the product is unsafe
*Feasible = It costs slightly more to make the safer product
(Feasible Alt. Approach)
Under the Restatement (Second) of Torts, ordinary contributory negligence is not a defense in a strict products liability action where the plaintiff merely failed to discover the defect or guard against its existence, or where the plaintiff’s misuse was reasonably foreseeable.
An eight-year-old child went to the grocery store with her mother. The child pushed the grocery cart while her mother put items into it. The child’s mother remained near the child at all times. Another customer in the store noticed the child pushing the cart in a manner that caused the customer no concern. A short time later, the cart the child was pushing struck the customer in the knee, inflicting serious injury.
If the customer brings an action, based on negligence, against the grocery store, the store’s best defense will be that
A: a store owes no duty to its customers to control the use of its shopping carts.
B: a store owes no duty to its customers to control the conduct of other customers.
C: any negligence of the store was not the proximate cause of the customer’s injury.
D: a supervised child pushing a cart does not pose an unreasonable risk to other customers.
D: a supervised child pushing a cart does not pose an unreasonable risk to other customers.
This answer choice states that fact in the language of negligence law: the store simply was not acting negligently on the facts of this question because the child presented no unreasonable risk of harm to customers.
A is incorrect. Customers who enter the business are invitees, and the business owes them a duty of care.
B is incorrect. The grocery store has a duty to take reasonable steps to make the conditions on the premises reasonably safe, to conduct active operations with reasonable care for the presence of its invitees, and, under limited circumstances, to protect its customers against the acts of third persons or animals.
C is incorrect. This answer choice states a fairly weak defense. It was foreseeable that a young child pushing a grocery cart could cause injury to other customers. If the other elements in the claim against the grocery store were met, proximate cause would not alone be a strong defense for the store
A business, e.g. a grocery store, owes its invitees a duty of care to
– take reasonable steps to make the CONDITIONS on the premises REASONABLY SAFE
– to conduct ACTIVE OPERATIONS w/ REASONABLE CARE for the presence of its invitees,
and,
– under limited circumstances, to protect its customers against the ACTS OF THIRD PERSONS OR ANIMALS
A defendant generally has no affirmative duty to act.
But such a duty arises when:
– Assumption of Duty (d voluntarily aids or rescues another has Duty to use reasonable care when rendering aid or performing rescue)
– Creation of Risk (d whose conduct creates foreseeable risk of harm or places another in peril has Duty to exercise reasonable care to prevent further harm by rendering care or aid)
– By Contract (Duty to use care when performing contractual obligations)
– By authority (Duty to exercise reasonable control over third party whom defendant has actual ability & authority to control, E.g. parent/child, custodian/person in custody, employer/employee, mental-health professional/patient)
– By relationship (Duty to protect, aid, or assist plaintiff with whom d shares unique relationship, e.g business proprietor/patron, common carrier/passenger, innkeeper/guest, employer/employee, parent/child)
– By statute (Statute imposes obligation to act for another’s protection)
– Land possessor (Duty to mitigate risks posed by natural or artificial conditions on land)
INTENTIONAL (tortious) INTERFERENCE WITH A CONTRACT
What are the required elements?
“Courts Kill Interfering Parties”
(Contract, Knowledge, Intentional Improper Interference, Pecuniary Loss)
– A VALID CONTRACT existed between the plaintiff and a third party
– the DEFENDANT KNEW of that contractual relationship
– the DEFENDANT INTENTIONALLY and IMPROPERLY INTERFERED w/ the contract’s performance
and
– that INTERFERENCE caused the plaintiff PECUNIARY (i.e. monetary) loss
CONVERSION
In a conversion action, does mistaken belief (even if reasonable) that the defendant legally possessed the chattel protect the defendant from liability for conversion?
No.
(E.g. landowner gets four trees cut off reasonably and honestly believing all four are on his land, but one is his neighbors –> He is liable)
A possessor of land is not required to exercise reasonable care to make his land safe for
trespassers
