Negligence & Other Torts

Question 1

What is negligence?

Answer 1

The failure to exercise the care that a reasonable person in that situation would exercise and acting in a way that breaches the duty to prevent foreseeable risks of harm to others

The unreasonable breach of the duty must be the cause of plaintiff’s harm.

Conduct that falls below the minimum degree of ordinary care imposed by law to protect others against unreasonable risk of harm

Traditional approach: What would a reasonably prudent person have done under those circumstances?

Question 2

Elements of Negligence:

Answer 2

Duty, Breach, Injury, Cause in Fact, Proximate Cause

Question 3

Generally, there is a legal duty owed…

Answer 3

to all foreseeable persons who may be injured by the defendant’s failure to follow a reasonable standard of care.

Question 4

Is there a duty to act affirmatively? (To Help Others)

Answer 4

No. Even if that failure to help turns out to be unreasonable.

Question 5

If acting affirmatively, the ______ of the harm to others is enough to give rise to this general tort duty of reasonable care.

Answer 5

foreseeability

Question 6

Are rescuers foreseeable plaintiffs in a negligence action?

Answer 6

Yes. A person who comes to the aid of another is a foreseeable plaintiff.

Question 7

What is the firefighters rule?

Answer 7

Certain emergency personnel may be barred from recovering damages.

Question 8

A person has no affirmative duty to voluntarily aid another. However, if a person does assume such a duty…

Answer 8

then they are liable for any injury caused by the failure to act within reasonable care in the performance of that aid or rescue.

Question 9

A person has no affirmative duty to aid another unless…(3)

Answer 9

(1) They place another in danger, (2) They have the ability and actual authority to control another, (3) The defendant has a special relationship with the plaintiff. (eg. Business-patron or common carrier-passenger)

Question 10

The negligence standard is an objective standard. We think about what a reasonably prudent person would have done. The defendant is presumed to have average mental abilities and knowledge. But what about if the defendant is blind or deathf? What if the defendant is drunk? What if the defendant is a child?

Answer 10

Blindness and deafness are worked into the objective standard. We say, what would a reasonably prudent blind person have done? We don’t expect blind people to be able to see. Also, we take drunkenness into account if the drunkenness was involuntary, but if it was voluntary, we do not.

If a child, we ask what would a reasonably prudent child of that age do? However, if the child is engaged in an adult activity, then we don’t take into account the child’s age.

Question 11

What is cost benefit analysis?

Answer 11

Ask: Whether there is a reasonable, efficient, inexpensive, sensible precaution that should have been taken in light of the foreseeable risks?

Courts take into account the foreseeable likelihood of harm, the severity of the harm, and the burden.

Question 12

How is custom relevant to the negligence standard?

Answer 12

It’s relevant evidence that someone has complied with what is customary.

Question 13

How is someone’s profession relevant to the negligence standard?

Answer 13

Expected to exhibit the same skill and knowledge as another practitioner in the same community. Specialist may be held to a higher standard. (This is another way of using custom)

Question 14

If someone is a physician is that relevant to the negligence standard?

Answer 14

Physicians are expected to exhibit the same skill and knowledge as another physician in the same or similar locality. The Modern trend is to use the national standard. A particular requirement for physicians is the requirement of informed consent.

Question 15

Define: Informed Consent

Answer 15

Requirement that a physician explains the risks of a procedure to a patient. Not required if risks are commonly known, patient is unconscious, patient waives/refuses the information, patient is incompetent, or the patient would be harmed by disclosure (e.g., it would cause a heart attack)

Question 16

What is negligence per se?

Answer 16

It is making reference to statutes or regulations to find a standard of care.

A criminal law or regulatory statute imposes a particular duty for the protection or benefit of others.

Statute will establish the standard of care.

Plaintiff must be in the class of people intended to be protected, the accident must be the type of harm that the statute was intended to protect against, and the harm was caused by a violation of that statute

Question 17

Defenses to Negligence Per Se

Answer 17

(1) Compliance with the statute was impossible or (2) An emergency justified violation of the statute.

Defendant must show that complying with the statute would be even more dangerous than violating the statute.

Question 18

Which of the following is NOT an element of negligence?

A
Breach of duty

B
Causation

C
Duty

D
Intentional Act

Answer 18

d

Question 19

Which of the following statements is FALSE regarding the standard of care in a negligence case?

A
Intoxicated individuals are held to the same standards as sober individuals, unless their intoxication was involuntary.

B
You Selected: Generally, a specialist is held to the same standard as a general practitioner.

C
Evidence of custom is relevant evidence to determine the proper standard of care.

D
A person’s particular physical characteristic, such as blindness, is taken into account in determining the reasonableness of the defendant’s behavior.

Answer 19

B

Question 20

Common Carriers and Innkeepers traditionally have a special duty of care. What is it?

Answer 20

Traditional Duty: A higher duty of care, consistent with the practical operation of the business. These classes of people could be held liable for slight negligence.

Modern Duty: However, modern law has kept the higher standard for common carriers, but not for innkeepers.

Modern Affirmative Duty: Courts have found that common carriers and innkeepers have an affirmative duty to act based on the special relationship with passengers and guests.

Question 21

There is such a thing called a “guest statute” in some jurisdictions. Many jurisdictions have abandoned this. What is it?

Answer 21

It’s a limitation on liability running from the driver to guests in the drivers car to situations where the driver is more than negligent.

Question 22

Traditional common law had weird rules for bailment. What are the rules now?

Answer 22

The duty of care depends on the circumstances in light of which conduct is measured by the standard of reasonable care.

Question 23

In an emergency situation, what is the standard of care?

Answer 23

A person should take the level of care in an emergency that an ordinary person would take in such a situation. In other words, an emergency is just one of the circumstances considered.

(It is considered less if the defendant has given rise to the emergency.)

Question 24

What is the duty of care owed to people who come onto land which is not their own and get hurt in traditional jurisdictions? In modern jurisdictions?

Answer 24

Traditional: The standard of care is different depending on the status of the person on the land. A person can be categorized as either an invitee, a licensee, or a trespasser.

Modern: A duty of due care is owed to all invitees and licensees, but generally a different duty is owed to trespassers.

Question 25

A trespasser is one to whom you owe the lowest duty of care under the traditional approach. What is this duty?

Answer 25

The possessor is obligated to refrain from willful or wanton misconduct, or reckless harm.

As to discovered or anticipated trespassers, there is a duty to warn or protect them from hidden dangers, but there is no duty to warn them from natural conditions or artificial conditions that don’t cause the risk of death.

As to undiscovered trespassers there is no duty at all.

Question 26

What is the attractive nuisance doctrine?

Answer 26

Possessor of land may be liable to injuries to children trespassing on the land if:

i) An artificial condition exists in a place where the owner knows or has reason to know children are likely to trespass;
ii) The land possessor knows or has reason to know the artificial condition poses an unreasonable risk of death or serious bodily harm;
iii) The children, because of their youth, do not discover or cannot appreciate the danger;
iv) The utility to the land possessor of maintaining the condition is slight compared to the risk of injury; and
v) The land possessor fails to exercise reasonable care.

Question 27

What is a licensee?

Answer 27

Someone who the land possessor gives permission to come onto their property for their own purposes.

Question 28

What duty is owed to licensees?

Answer 28

The land possessor has a duty to either correct or warn them of concealed dangers on your property. There is no duty to inspect for dangers, but land possessor must exercise reasonable care in conducting activities on the land.

A social guest is likely considered a licensee.

Question 29

What is an invitee?

Answer 29

Someone who comes onto the land for your purpose, a mutual or joint purpose.

A customer is likely to be considered an invitee.

Question 30

What duty of care do you owe to an invitee?

Answer 30

A duty of reasonable care.

NOTE It is a Non-delegable duty: Cannot avoid the duty by assigning care of your property to an independent contractor

Question 31

As to landlords and tenants, when is the landlord liable?

Answer 31

When there is an injury in a common area, an injury from hidden dangers about which the landlord did not warn the tenant, injuries from premises that are leased for public use, or injuries from a hazard the landlord has agreed to repair.

Question 32

As to landlords and tenants, when is the tenant liable?

Answer 32

As occupier of land, the tenant continues to be liable for injuries arising from conditions within the tenant’s control.

Question 33

Land possessors are generally not liable for injuries resulting from natural conditions, with the exception of

Answer 33

trees in urban areas.

Question 34

Land possessors are generally not liable for artificial conditions, however,

Answer 34

they must prevent unreasonable risk of harm to persons not on the premises.

Question 35

Sellers of real property have a special duty to buyers. What is it?

Answer 35

Duty to disclose concealed and unreasonably dangerous conditions known to the seller.

This duty continues until the buyer has a reasonable opportunity to discover and remedy the defect.

Question 36

What are the elements of res ipsa loquitur

Answer 36

(1) The accident was of a kind that usually does not occur in the absence of negligence.
(2) The accident was caused by an agent or instrumentality within the defendant’s exclusive control; and
(3) The accident was not due to the plaintiff’s own fault.

Question 37

What happens when res ipsa is applied to medical malpractice cases?

Answer 37

Sometimes in medical malpractice cases where there are a bunch of defendants, and all have had contact with the plaintiff, but the plaintiff cannot figure out who is negligent, sometimes courts will shift the burden to the defendants because it is unfair to think that an unconscious plaintiff is going to be able to figure it out. In that case, the defendants are all joint and severally liable unless they can exonerate themselves.

Question 38

Which of the following statements regarding the standard of care for common carriers and innkeepers is FALSE?

A
Under the traditional rule, common carriers owed the highest duty of care consistent with the practical operation of the business.

B
Under the traditional rule, innkeepers could be held liable for slight negligence.

C
You Selected: A majority of courts today hold innkeepers to the highest duty of care standard.

D
A majority of courts today hold that innkeepers are liable only for ordinary negligence.

Answer 38

c

Question 39

Which of the following describes a landowner’s duty to a licensee?

A
The normal duty of care

B
None, except to avoid “willful and wanton” disregard for safety

C
The duty to warn about known, hidden dangers

D
The highest duty of care

Answer 39

c

Question 40

Regarding the attractive nuisance doctrine, which of the following statements is FALSE?

A
The doctrine applies only to children.

B
The doctrine applies only to artificial conditions.

C
You Selected: The doctrine applies regardless of whether the landowner knows or has reason to know that children are likely to trespass.

D
When the doctrine applies, the landowner owes a duty of reasonable care to the trespasser.

Answer 40

c

Question 41

FILL IN THE BLANK. The traditional characterization of persons for purposes of determining a landowner’s duty toward them has, in some jurisdictions, been replaced by the ________.

A
duty to warn

B
You Selected: duty of reasonable care

C
duty to not intentionally hurt

D
duty of utmost care

Answer 41

b

Question 42

Under which of the following circumstances is a tenant responsible for injuries associated with property?

A
Injuries in common areas

B
Injuries arising from conditions within the tenant’s control

C
Injuries from hidden dangers about which the landlord did not warn the tenant

D
Injuries arising from premises that are leased for public use

Answer 42

b

Question 43

Which of the following statements regarding res ipsa loquitur is TRUE?

A
Res ipsa loquitur shifts the burden of proof as to issues of negligence to the defendant.

B
You Selected: Res ipsa loquitur requires the defendant to have had exclusive control of the instrumentality that caused the harm.

C
Res ipsa loquitur requires the harm suffered by the plaintiff to be of the type that would have occurred despite any negligence.

D
Res ipsa loquitur may apply when the accident was due to the plaintiff’s fault.

Answer 43

b

Question 44

I negligently damaged the brakes in your car. You are sitting in your driveway and adjusting the car radio before you are about to drive, when a giant meteorite crushes your car. Am I liable?

Answer 44

I am not liable because my negligence did not cause your harm.

Question 45

How do you show the “Cause in Fact” prong of causation?

Answer 45

Plaintiff must show that the injury would not have occurred “but for” the defendant’s negligence.

The “but-for” test can be problematic in the following circumstances:

There are several tortfeasors and it cannot be said that one particular defendant’s tortious conduct was necessary to cause the harm;

There are multiple potential sources of the harm and the plaintiff cannot prove which defendant caused the harm; or

There is a negligent misdiagnosis in a case where it is likely that the plaintiff would have died anyway.

Question 46

When the tortious acts of two or more defendants are each a factual cause of one harm, then __________ applies.

Answer 46

joint and several liability

Question 47

I negligently hang up my laundry on a stop sign on a road. Someone else negligently drives too fast. As a result, a person is hit. Who can the victim collect from?

Answer 47

Both acts were the causes of the harm. Thus, joint and several liability applies and the victim can collect in whole or in part from either of the two tortfeasors.

Question 48

A difficult situation arises when there are multiple defendants, any of which could have been the sole cause of the harm. (think about the case of the bird hunters. The bird hunter got shot in the eye by bird shot. Either of two hunters was the sole cause, but the victim couldn’t prove which) Generally, a plaintiff cannot recover unless they know who caused the harm. However, in the situation where you have multiple negligent parties before the court, the court will often…

Answer 48

Shift the burden of proof to the defendants and force them to exonerate themselves or else face joint and several liability.

Question 49

What happens in a situation where there are multiple tortfeasors acting together, and collectively they cause the plaintiff’s harm?

Answer 49

All defendants will be held jointly and severally liable although no one of them was absolutely necessary.

Question 50

A couple people have a drag race and someone runs another person over. Are either negligent parties liable?

Answer 50

Both are liable because they were acting in concert negligently.

Question 51

Some fraternity brothers throw a piano off the roof of the frat house as a prank. An injury occurs and those fraternity brothers are all liable because they acted __.

Answer 51

in concert.

Question 52

What is the loss of chance doctrine?

Answer 52

A patient has a 20% chance of survival. The doctor negligently treats that patient by misdiagnosing the patient’s condition. The patient now has a 10% chance of survival. Ordinarily, the patient would lose if the normal causation rules applied. Under the loss of recovery rule, the patient’s chance of recovery must be less than 50% even prior to the negligent misdiagnosis.

But if a physician negligently reduces the plaintiff’s chance of survival, then that plaintiff can recover for that harm.

Question 53

The proper measure of damages in a lost chance case is

Answer 53

the percentage of your damages that correspond to the likelihood that the defendant’s negligence caused your harm.

Question 54

Defendant’s liability is limited to those harms that result from the risk that made the defendant’s conduct ______

Answer 54

tortious

Question 55

How do modern courts define proximate cause?

Answer 55

Defendant’s liability is limited to those harms that result from the risk that made the defendant’s conduct tortious. They use the phrase “scope of liability” Ask - Is this the kind of harm that made us decide that you are negligent?

Question 56

In terms of causation - if the harm that resulted from the kind of risk that your negligence resulted in resulted in a significantly worse injury, then

Answer 56

the eggshell plaintiff rule applies…you are liable.

Question 57

An intervening cause is

Answer 57

a factual cause that contributes to the harm

Question 58

A superseding cause is

Answer 58

an intervening cause that breaks the chain of causation. Certain kinds of unforeseeable intervening causes are superseding causes, which sever the connection.

Question 59

Property Damage Recovery:

(1) General Rule ____
(2) Harm to Personal Property ______
(3) Harm to Household Items _________

Answer 59

(1) Difference between market value b4 and after the injury.
(2) Cost of Repairs
(3) Replacement Value

Question 60

Payments to plaintiff from plaintiff’s own insurance are _________.

Payments to plaintiff from defendant’s insurance are ___________

Answer 60

(1) nondisclosable

(2) disclosable

Question 61

When a plaintiff thinks they are about to suffer physical harm due to another’s negligence and as a result they suffer emotional distress, what tort is this?

Answer 61

NIED

Question 62

Generally, the plaintiff can recover for negligent infliction of emotional distress if he is within the ________

Answer 62

zone of danger (but see exceptions)

Question 63

The zone of danger rule has exceptions. What are they?

Answer 63

Bystander recovery - personally observing at the scene a closely related relative become injured.

Physician misdiagnosing a disease

A funeral home mishandling a body

Question 64

What are parasitic damages?

Answer 64

Once a plaintiff has recovered for a physical harm or property damage, he or she can sometimes add categories of damage analogous to emotional distress.

The damages for distress are parasitic on the other tort.

Question 65

What is the difference between a wrongful death and a survival action?

Answer 65

Wrongful Death
 Decedent’s spouse, next of kin, or personal representative brings suit to recover losses suffered as a result of the decedent’s death under actions created by state statutes
 Damages include loss of support and income and loss of companionship and society.
b. Survival Actions
 Brought by the representative of the decedent’s estate
 Actions on behalf of the decedent that died
 Claims include damages resulting from personal injury or property damage

Question 66

What kind of recovery can be had for loss of a parent or loss of a child?

Answer 66

Parent can sometimes recover for the loss of services if a child is injured.
 Parent can recover for loss of companionship in a wrongful death action if child is killed.
 Many jurisdictions allow the child to recover for the parent’s companionship in a wrongful death action.

Question 67

Wrongful Birth claims are mostly ________, but wrongful life claims are mostly ________.

Answer 67

permitted; not permitted. Wrongful life is when contraceptive treatment doesn’t work, wrongful birth is when there is failure to diagnose a defect.

Question 68

Which of the following statements regarding parents and children is TRUE?

A
Parents typically are vicariously liable for their minor children’s torts.

B
A parent has the duty to exercise reasonable care to prevent a minor child from harming a third party as long as the parent has the ability to control the child and knows or should know of the necessity for exercising such control.

C
When a child commits a tort while acting as an agent of her parent, only the child is liable.

D
A parent is not vicariously liable when the parent approves the child’s driver license application and the child causes damages while negligently driving a car.

Answer 68

b

Question 69

Regarding respondeat superior, which of the following statements is FALSE?

A
Respondeat superior is a way of holding an employer liable for his own negligence.

B
Under respondeat superior, employers are liable for the torts of its employees.

C
An employer may be liable for a tort committed by the employee during an employee’s detour.

D
An employer is not liable for an employee’s frolic.

Answer 69

a

Question 70

In which of the following circumstances is an employer NOT vicariously liable for a tort committed by an independent contractor?

A
The activity performed by the independent contractor is an inherently dangerous one.

B
Non-delegable duties

C
A storekeeper hired an independent contractor to keep the business premises in a reasonably safe condition for the public.

D
Delegable duties

Answer 70

d

Question 71

Which of the following statements regarding damages is TRUE when there are multiple defendants who are liable for a single and indivisible harm to the plaintiff?

A
Each defendant is liable to the plaintiff for the entire amount of the harm.

B
A defendant who has paid damages to the plaintiff may seek to shift the entire loss to another defendant through contribution.

C
A defendant may be entitled to indemnification from the plaintiff.

D
The plaintiff is entitled to recover double the damages.

Answer 71

a

Question 72

Which of the following statements regarding immunities is FALSE?

A
Government officials are immune for ministerial acts.

B
As to government officials, immunity applies when they perform discretionary functions, so long as they are not done with malice or an improper purpose.

C
The federal government has NOT waived immunity in certain enumerated torts such as false arrest.

D
Most states have eliminated charitable immunity.

Answer 72

a

Question 73

Under which of the following circumstances will a court NOT allow parents to be liable for a tort claim brought by their children?

A
When the parent is acting in a dual activity

B
For injuries arising from automobile accidents

C
Core parenting activities

D
Intentional tortious conduct

Answer 73

c

Question 74

What is the last clear chance doctrine?

Answer 74

Even in a regime where the slight negligence of a plaintiff would prevent him from recovering from a negligent defendant; if the defendant had the last clear chance to avoid the harm but failed to do so then the plaintiff could still recover.

Even under the traditional rule, if the defendant had an opportunity to avoid the accident they should do so, or avoid liability.

Question 75

Rejecting the all or nothing rule, almost all jurisdictions have comparative negligence. What is this?

Answer 75

Apportioning liability between plaintiff and defendant based on their proportional fault

Question 76

Pure Comparative Negligence is?

Answer 76

Plaintiffs contributory negligence is not a complete bar, but the damages are reduced by the extent to which the plaintiff contributed to the harm. Even if the defendant was only 10% at fault, the plaintiff still recovers, but just 10% of the damages.

Question 77

Most comparative fault jurisdictions are uncomfortable with allowing p to recover when the accident was mostly their fault. These jdns have modified compared fault. What is this?

Answer 77

If the plaintiff is less at fault than the defendant, plaintiff’s recovery is reduced by his percentage of fault. But if the plaintiff is more at fault than the defendant: plaintiff cannot recover.

Question 78

Imputed Contributory negligence follows logically from contributory negligence. What is it?

Answer 78

It is when you limit one person’s recovery because of another person’s negligence. Not usually available. An example is when an employee’s negligent driving may prevent or reduce an employer’s recovery from a third-party if the employer’s car is damaged.

There are specific places where it cannot be used:
A married plaintiff whose spouse was contributorily negligent in causing the harm, in a suit against a third party;
 A child plaintiff whose parent’s negligence was a contributing cause of her harm, in a suit against a third party;
 An automobile passenger suing a third-party driver if the negligence of the driver of the car in which the passenger was riding also contributed to the accident; or
 An automobile owner in an action against a defendant driver for negligence when the driver of the owner’s car also was negligent.

Question 79

What is assumption of the risk?

Answer 79

Plaintiff has knowingly and willingly accepted a risk of harm and as a result cannot recover.

I have a fancy motorcycle that I have been experimenting with. Another motorcycle racer saw me experimenting on the bike and wants to try my motorcycle on the track. I tell him, “I would love for you to try it. But I tried this new steering and I’m not sure if it’ll be stable.” The racer still wants to try it. If the racer uses my motorcycle and gets in an accident, he would lose in a lawsuit because he assumed the risk. In addition, I was not negligent to him.

Question 80

Exculpatory Clauses in Contracts are ok, except when:

Answer 80

Courts will hesitate to enforce exculpatory provisions if:
 They disclaim liability for reckless or wanton misconduct, or gross negligence;
 There is a gross disparity of bargaining power between the two parties;
 The party seeking to enforce the provision offers services of great importance to the public (e.g., medical services); or
 The provision is subject to contract defenses (e.g., fraud or duress).
o Generally, common carriers, innkeepers, and employers cannot disclaim liability for negligence.

Question 81

Which of the following statements regarding strict liability for injuries caused by animals is FALSE?

A
If the plaintiff is aware of the dangerous propensity of an animal and taunts the animal, he may be prohibited from recovering.

B
Owners of a wild animal are liable for reasonably foreseeable damages caused by his animal while trespassing.

C
Owners of household pets are liable for reasonably foreseeable damages caused by his animal while trespassing.

D
A plaintiff’s contributory negligence may reduce recovery in comparative fault states.

Answer 81

c

Question 82

Product Defect in Manufacture is defined as:

Answer 82

The product deviates from what the manufacturer intended.

Question 83

Product Defect in Design is defined as:

Answer 83

If the product deviates from the intended design and that deviation makes it more dangerous and causes your harm, then the defendant is liable even if the defendant acted reasonably.

Question 84

Product Defect in Design can be proven by two alternative showings:

Answer 84

Consumer Expectation Test:

Risk Utility Test:

Consumer expectation test: Product is defective in design if it is less safe than contemplated by the ordinary consumer.

Risk-utility test: Product is defective in design if it could have been made safer by additional safety features.

For the latter, Plaintiff must prove there are reasonably, feasible, safety features – alternative designs that would have made the product safer, then the failure to include those features makes the product defective.

A design defect case is essentially a case of negligent design.

Question 85

Which of the following statements regarding warranties is TRUE?

A
Generally, the defenses that may be asserted in a strict products liability claim can be asserted in a breach of warranty claim.

B
An implied warranty is an affirmative guarantee of the product’s safety.

C
There is no tort for breach of an implied warranty of merchantability.

D
A warranty claim may prevail even if the plaintiff failed to provide the seller with notice of the breach of warranty.

Answer 85

a

Question 86

Claims for strict liability for products can be pursued against…

Answer 86

anyone in the business of selling the product that is defective. This includes the manufacturer, the distributor, or the seller of a defective product.

Question 87

What are the elements of a products liability action?

Answer 87

Plaintiff must show:

1) The product was defective (i.e., manufacture, design, or failure to warn);
2) The defect existed at the time the product left the defendant’s control; and
3) The defect caused the plaintiff’s injury.

Question 88

What is the test for a manufacturing defect?

Answer 88

Does the product conform to the defendant’s own specifications? If the product deviates from the intended design and that deviation makes it more dangerous and causes your harm, then the defendant is liable even if the defendant acted reasonably.

Question 89

What are the tests for defective design?

Answer 89

Consumer expectation test: Product is defective in design if it is less safe than contemplated by the ordinary consumer.

Risk Utility Test: Product is defective in design if it could have been made safer by additional safety features.

Question 90

What is the learned intermediary rule?

Answer 90

Manufacturer does not have a duty to warn the consumer directly, but satisfies that duty by warning the doctor who prescribes the drug.

But if the manufacturer is aware that the drug will be given directly without the personal intervention of doctors or health care providers, that is an exception to this rule. (Birth Control Pills)

Question 91

Who can be a plaintiff in a products liability action?

Answer 91

Anyone foreseeably injured by a defective product - purchasers, subsequent users, and even bystanders.

Question 92

Who can be a defendant in a products liability action?

Answer 92

Anyone in the business of selling - manufacturer, distributor, retailer, but not a casual seller.

Question 93

In a comparative fault jurisdiction, plaintiff’s own negligence does what for a products liability action?

Answer 93

Reduces recovery.

Question 94

In a comparative fault jurisdiction, misuse or modification of a product will

Answer 94

reduce but not eliminate recovery.

Question 95

In a contributory negligence jurisdiction, product misuse, if unforeseeable, will

Answer 95

completely bar recovery

Question 96

Contributory Negligence Jurisdictions have weird rules about products liability - what are they?

Answer 96

Contributory negligence is NOT a defense when the plaintiff is negligent in failing to discover the defect.
 It IS a defense if the plaintiff unreasonably proceeded in the face of a known defect.

Question 97

A substantial change to a product is a

Answer 97

superseding cause that cuts off liability

Question 98

What are the elements of defamation?

Answer 98

Defendant:

(1) Made a defamatory statement
(2) That is of or concerning the plaintiff
(3) The statement is published to a third party who understands its defamatory nature; and
(4) damaged the plaintiff’s reputation

The statement must also be false.

Question 99

There are heightened burdens for certain types of defamation because of the Constitution. What are they?

Answer 99

As to matters of public concern, the plaintiff must show that the defendant was at least negligent with regard to the falsehood.

If the plaintiff is a public official or public figure, the plaintiff must prove actual malice.

Question 100

What is a defamatory statement?

Answer 100

Language that diminishes respect, esteem or good will towards the plaintiff, or that deters others from associating with the plaintiff.

Question 101

How do we know whether a statement is made “of or concerning” a plaintiff in a defamation action?

Answer 101

A reasonable person must believe the defamatory language referred to this particular plaintiff.

If it refers to a group, a member of a group can only bring an action if the group is so small that the matter can reasonably be understood to refer to that member.

Question 102

What does the publication element of defamation require?

Answer 102

The statement must be communicated to a third party who understood the content. A person who repeats a defamatory statement may be liable for defamation. Federal statute provides that ISP’s are not publishers for purposes of defamation.

Question 103

What makes a statement false for the purposes of defamation?

Answer 103

Opinions are not actionable as defamation, but opinions can be actionable as defamation if the person who states the opinion implies that they have objective facts to support it.

Question 104

What if the plaintiff is a public official?

Answer 104

The official must show that the statement is false, and that the statement was made with actual malice.

Actual malice is knowledge that the statement was false or acting with reckless disregard with regard to the truth of the statement.

A public official is someone in the government hierarchy or someone who has responsibility over governmental affairs.

Question 105

A public figure for purposes of defamation is…

Answer 105

Not a government official, but is in the public eye
 General purpose public figures – occupy positions of pervasive influence and power
 Limited purpose public figures – if they have thrust themselves into a particular issue
 Public figures must show actual malice to recover for defamation.

Question 106

A private individual for purposes of defamation is…

Answer 106

Matter of public concern
If the plaintiff is neither a public figure nor a public official but the statement involves a matter of public concern, the defendant is entitled to some limited constitutional protections.
2) NOT a matter of public concern
If the plaintiff is a private individual and the statement is not a matter of public concern, there are no constitutional limits.

Question 107

As far as falsity goes

Answer 107

Constitutionally, if the defamatory statement relates to a matter of public concern or if the plaintiff is a public official or public figure, the plaintiff has to prove that the defamatory statement is false as part of his or her case, rather than having truth as a defense. Without these requirements, constitutionally, there is no falsity requirement, however, many states now have a falsity requirement. For those who dont, truth is a defense.

Question 108

As far as burdens of proof go in defamation actions…

Answer 108

Public officials or figures must prove the defendant acted with actual malice.

Private Individuals who speak on a matter of public concern must show that the defendant acted with at least negligence.

Private Individuals who speak on matters which are not of public concern are not covered by the constitutional requirements, however most states require at least negligence.

Question 109

Libel is ________, slander is ________.

Answer 109

written; spoken

Question 110

Regarding damages in a defamation action, what is the difference between libel and slander?

Answer 110

Libel plaintiffs can get general damages, but slander plaintiffs can get special damages. (Special damages are a more specific, higher burden)

Question 111

Private Individuals speaking on matters that are not of public concern can get what type of damages?

Answer 111

General, which include presumed damages.

Question 112

Public Officials, Public Figures, and Private Individuals speaking on matters of public concern can recover what type of damages?

Answer 112

Actual

Question 113

Which of the following does NOT qualify as slander per se?

A
A statement that plaintiff is unfit for his business.

B
A statement that that plaintiff has committed a crime of moral turpitude.

C
A statement that that plaintiff has a disease.

D
A statement that plaintiff has committed severe sexual misconduct.

Answer 113

c

Question 114

Which of the following statements is TRUE regarding defenses to invasion of privacy?

A
The defense of absolute privilege applies to misappropriation of the right to publicity.

B
Truth is not a defense to invasion of privacy.

C
The defense of conditional privilege applies to unreasonable intrusion upon the plaintiff’s privacy.

D
Generally, consent is not a defense to invasion of privacy.

Answer 114

b

Question 115

Truth is an absolute defense to defamation, but not a defense at all to…

Answer 115

invasion of privacy

Question 116

In the following four situations, you can never be liable for defamation

Answer 116

In the course of judicial or legislative proceedings

Between a husband and wife

In required publications by radio and TV

Question 117

Invasion of Privacy, as a tort, is divided into four causes of action. What are they?

Answer 117

Misappropriation of the right to publicity; Unreasonable Intrusion upon the Plaintiff’s private affairs; False Light; Public Disclosure of Private Facts

Question 118

The business tort of intentional misrepresentation’s elements are:

Answer 118

False Representation; scienter; intent; causation; justifiable reliance; damages

For the False Representation element: there is generally no duty to disclose, but false representation can arise where the defendant has concealed a material fact, if there is an affirmative duty such as a fiduciary relationship, or the other party is likely to be misled, or where custom suggests the defendant should have cleared something up

For the Scienter Element: Defendant must have knowledge or recklessness with regard to the falsity

For the Damages Element: Must show actual economic, pecuniary loss - in most jdns the recovery is the benefit of the bargain

Question 119

What is negligent misrepresentation?

Answer 119

The defendant who provides false information to a plaintiff as a result of the defendant’s negligence in preparing the information may be liable for pecuniary damages caused by that plaintiff’s justifiable reliance only if there is either a contractual relationship with the defendant or the plaintiff is a third party known by the defendant to be a member of the limited group for whose benefit the information is supplied and the information must have been relied upon in a transaction that the supplier of info intended to influence or at least knew the recipient of the info intends to influence.

Question 120

An accountant conducts audits and furnishes financial statements and opinion that are routinely relied on by lenders and investors. This accountant will not be liable unless she is informed that a particular third party will be using that statement for a particular purpose for what tort?

Answer 120

Negligent Misrepresentation

Question 121

Negligent Misrepresentation defendants are liable for

Answer 121

out of pocket and consequential damages

Question 122

What is intentional interference with contract?

Answer 122

Defendant knew of a contractual relationship between a plaintiff and a third party, and intentionally interfered with the k, resulting in a breach and the breach caused damages to the plaintiff.

NOTE that the contract must not be terminable at will and must be valid.

NOTE that the defendants conduct must exceed fair competition and free expression, and the defendant may be liable when he prevents a party from fulfilling its contractual obligations or substantially adds to the burden of performance.

Question 123

Persuading a bank not to lend money to a competitor can be

Answer 123

intentional interference with business relations

Question 124

Interfering with business relations can be justified if

Answer 124

motivated by considerations for health, public safety or public morals

Question 125

What is misappropriation of trade secrets?

Answer 125

Plaintiff owns a valid trade secret that is not generally known, plaintiff has taken reasonable precautions to protect it, and defendant has taken the secret by improper means

Question 126

What is trade libel?

Answer 126

Statement that injures a plaintiff’s business or product. Proof of special damages is required. The statement DOES NOT need to be defamatory.

Elements:

Publication;
Of a derogatory statement;
Related to the quality of the plaintiff’s business or products;
That damages the business relationships;

Question 127

You publish an article in the paper stating, “I would like to congratulate my long-time friend and competitor who retired, closed his business, and moved to Chicago. I look forward to serving all of his customers.” If this statement is false and damages the business, this can be actionable as what tort?

Answer 127

Trade Libel

Question 128

What is slander of title?

Answer 128

False statements that call into question a plaintiff’s ownership of real property.

Elements: 
Publication; 
Of a false statement; 
Derogatory to the plaintiff's title; 
With malice; 
Causing special damages; 
Diminishes value in the eyes of third parties.

Question 129

What is malicious prosecution?

Answer 129

A person intentionally and maliciously institutes or pursues a legal action for an improper purpose without probable cause and the action is dismissed in favor of the person against whom it was brought.

Question 130

What recovery can be had for malicious prosecution?

Answer 130

Damages proximately caused by this conduct including legal expenses, loss of time, loss of reputation, and emotional distress.

Question 131

Can you sue a prosecutor for malicious prosecution?

Answer 131

Not civilly, they have absolute immunity. But you can try for criminal liability.

Question 132

What is abuse of process?

Answer 132

Some willful act perpetrated in the use of legal process which is not proper in the regular conduct of that proceeding, and that the conduct caused damages.

Question 133

A local school board of education sued a teacher’s union and subpoenaed 87 teachers for a hearing in order to prevent the teachers from walking a picket line during a labor dispute between the union and the board of education. What tort is this?

Answer 133

Abuse of Process

Question 134

Punitive damages are available when…

Answer 134

A plaintiff may be entitled to punitive damages if he can establish by clear and convincing evidence that the defendant acted willfully and wantonly, recklessly, or with malice. Punitive damages are also available for inherently malicious torts (such as intentional infliction of emotional distress, which requires outrageous conduct).