Missed Book Questions Flashcards
What is fraud, deceit, intentional misrepresentation?
one party to a commercial transaction is liable to the other party if D intentionally makes a misrepresentation of fact to induce P to consumate the transaction and P suffers pecuniary loss from doing so.
Res ipsa loquitor
the factfinder may infer that the defendant has been negligent when the accident causing the plaintiff’s harm is a type of accident that ordinarily happens as a result of negligence of a class of actors to which the defendant is a member.
Business premises
when business premises are open to the public are owned and operated by the defendant (a hospital), the defendant has a nondelegable duty to maintain the premises (ex. doors).
Defense of others
affirmative defense where an actor is privileged to defend a third person from a harmful or offensive contact or other invasion of his interests of personality under the same conditions and same means as those by which he is privileged to defend himself if the actor correctly or reasonably believes that a) the circumstances are such to give the third person a privilege of self defense and b) he intervention is necessary for the protection of the third person.
Self-defense by force
an actor is privileged to use reasonable force not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.
Confine another person for self-defense
an actor is privileged to intentionally confine another or to put him in apprehension of a harmful or offensive contact for the purpose of preventing him from inflicting a harmful or offensive contact or other bodily harm under the same conditions and same purpose.
Abnormally dangerous activity
an actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity an activity is abnormally dangerous when
1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors and 2) the activity is not one of common usage.
Alternative liability doctrine
When the plaintiff sues all of multiple actors and proves that each engaged in tortious conduct that exposed the plaintiff to a risk of harm and that the tortious conduct of one or more of them caused the plaintiff’s harm but the plaintiff cannot reasonably be expected to prove which actor or actors caused the harm, the burden of proof, including both production and persuasion, on factual causation is shifted to the defendants.
Reed, a pedestrian, was injured by a sofa that was negligently or intentionally thrown from an upper-story hotel room during the celebration of a NCAA basketball championship. Reed sues all of the occupants of the 47 rooms from which the sofa might have been thrown. Is the alternative liability doctrine helpful here?
NO, Reed has not shown which of the defendant was responsible for throwing the Sofa and he has not shown that the occupants of each of the 47 rooms acted tortiously or in concert
What is the situation where alternative liability might show up?
Ybarra case. Guy woke up with paralyzed arm and sued all the doctors and nurses in the operating room.
Interference with dead bodies
One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body. ie. severe emotional distress
What is the exception to strict liability of an abnormally dangerous activity?
a person who knowingly and voluntarily chooses to encounter the hazardous activity for the person’s own benefit will be deemed to have assumed the risk of injury and will be precluded from recovery.
Joint and several liability of a indivisible harm
If multiple defendants each of whose tortious conduct is a substantial factor in causing an indivisible injury to the plaintiff the defendants will be jointly and severally liable.
Is using toxic chemicals for pest control an abnormally dangerous activity?
Yes. Courts have often held that the use of toxic chemicals for pest control is an abnormally dangerous activity thus imposing strict liability. Court held fumigation is not a common usage.
What is a maybe successful defense to a strict liability action for abnormally dangerous activity?
assumption of risk. The plaintiff’s assumption of risk of harm from an abnormally dangerous activity bars his recover from harm.
