OD Notes

Question 1

3 Theories to Show Proof of Breach

Answer 1

1. Custom or Usage
2. Violation of Statute (neg. per se)
3. Res Ipsa Loquitor

Question 2

Under res ipsa loquitur, the fact that an injury occurred may create an inference that the defendant breached his duty.

Three requirements:

Answer 2

1. The accident causing the injury is a type that would not have occurred absent negligence.
2. The negligence is attributable to the defendant (usually because the defendant is in exclusive control of the instrumentality causing the injury).
3. The injury was not attributable to the plaintiff’s own conduct.

Question 3

The standard of care in a common law negligence case may be established by proving the applicability of a statute that provides for a criminal penalty, NOT a civil penalty. If the statute applies, the ________ will replace the ________.

If the statute in question provides for a civil remedy, the plaintiff will sue directly under the statute: i.e., it is not a common law negligence case.

Answer 3

statute’s specific duty will replace the more general common law duty of care

Question 4

The standard of care in a common law negligence case may be established by proving the applicability of a statute that provides for a criminal penalty, NOT a civil penalty. If the statute applies, the statute’s specific duty will replace the more general common law duty of due care.

For a statute to apply, the specific duty imposed by the statute must be clearly stated. The plaintiff also must show that:

Answer 4

(i) She is in the class intended to be protected by the statute; and

(ii) The statute was designed to prevent the type of harm that the plaintiff suffered.

Question 5

In negligence per se, plaintiff establishes a conclusive presumption of ____________ by showing a violation of an applicable statute. Plaintiff still must establish ____________ to complete the prima facie case for negligence.

Answer 5

duty and breach of duty

causation and damages

Question 6

In negligence per se analysis, a violation of an applicable statute may be excused if:

Answer 6

(i) compliance with the statute would cause more danger than a violation
(e.g., a defendant drives onto the wrong side of the road to avoid hitting children who dart into his path), or
(ii) compliance with the statute would be beyond the defendant’s control
(e.g., a blind pedestrian crosses against a light)

Question 7

Is assumption of risk a defense to negligence per se?

Answer 7

No.

Under the defense of assumption of risk, a plaintiff will be denied recovery in a negligence action if he either expressly or impliedly knew of the risk of injury and voluntarily proceeded in the face of the risk.

However, courts refuse to permit an assumption of risk defense in some situations because of public policy considerations. When a statute applies and is enacted to protect a class, members of that class will not be deemed to have assumed any risk. 

Question 8

A landowner [may/may not] use force to regain real property after being tortiously dispossessed.

Answer 8

may NOT

Question 9

An owner of chattel [may/may not] use force to recapture the chattel.

Answer 9

MAY

An owner may use reasonable force to recapture a chattel when in “hot pursuit” of the tortfeasor. A demand for return of the chattel must be made before force is used, unless the demand would be futile or dangerous.

However, force can be used only against the tortfeasor or a third party who knows that the chattel was tortiously obtained. If an innocent third party has obtained the chattel, the owner is no longer privileged to use force to effect a recapture of the chattel.

Question 10

An owner may use reasonable force to recapture a chattel when in ________ of the tortfeasor.

A demand for return of the chattel must be made before force is used, unless the demand would be futile or dangerous.

Answer 10

hot pursuit

Question 11

A citizen may use force to effect a misdemeanor arrest. However, the citizen is allowed to use only ________________.

Answer 11

the amount of force necessary to effect the arrest and never deadly force

Question 12

________ is the only intentional tort where recklessness is sufficient to prove intent & P had to prove damages.

Answer 12

IIED

Question 13

When is a reasonable mistake allowed as to a property owner’s right to use force in defense of property?

Answer 13

A reasonable mistake is allowed as to the property owner’s right to use force in defense of property, where the mistake involves whether an intrusion has occurred or whether a request to desist is required.

A mistake is NOT allowed as to whether an entrant has privilege.

Question 14

If P establishes res ipsa, D [can/cannot] prevail on a motino for directed verdict.

Answer 14

CANNOT

Question 15

Remedy for Conversion

Answer 15

Fair Market Value @ time of conversion

Question 16

In addition to having ____________ as to the fact of theft, a shopkeeper is required to conduct the detention in a reasonable manner and detain the suspect for a reasonable period of time for the privilege to apply.

Answer 16

a reasonable belief

Question 17

In addition to having a reasonable belief as to the fact of theft, a shopkeeper is required to ________________ and detain the suspect for a reasonable period of time for the privilege to apply.

Answer 17

conduct the detention in a reasonable manner

Question 18

In addition to having a reasonable belief as to the fact of theft, a shopkeeper is required to conduct the detention in a reasonable manner and ________________.

Answer 18

detain the suspect for a reasonable period of time for the privilege to apply

Question 19

Shopkeepers Privilege Elements

Answer 19

1. There must be a **reasonable belief **as to the fact of theft;
2. The detention must be conducted in a reasonable manner and only nondeadly force can be used; and
3. The detention must be only for a reasonable period of time and only for the purpose of making an investigation.

A shopkeeper is NOT required to notify the police in a reasonable amount of time to avoid liability for false imprisonment when detaining a suspect for shoplifting.

Question 20

Although ____________ usually applies as a defense to a false imprisonment action, it is equally applicable as a defense to other intentional torts.

Answer 20

shopkeeper’s privilege

Question 21

Trespassers cannot recover for injuries inflicted by the landowner’s abnormally dangerous domestic animals in the absence of __________. 

Answer 21

negligence

Question 22

Persons who enter the premises for a purpose connected with the landowner’s business are ________. 

Answer 22

invitees

Question 23

____________ include those who enter the premises for a purpose for which the land is held open to the public.

Answer 23

invitees

Question 24

A person loses his status as an invitee if he _________.

Answer 24

exceeds the scope of the invitation

*if he goes into a portion of the premises where his invitation cannot reasonably be said to extend. *

Question 25

Under the “firefighter’s rule,” police officers and firefighters are generally treated like ________, based on public policy or assumption of risk grounds.

Answer 25

licensees

They cannot recover for a landowner’s failure to inspect or repair dangerous conditions that are an inherent risk of their law enforcement or firefighting activity.

Question 26

A ________ is one who enters on land with the landowner’s permission, express or implied, for her own purpose or business, rather than for the landowner’s benefit.

Answer 26

licensee

Question 27

**Res ipsa loquitur **requires that the plaintiff present evidence connecting the defendant with the negligence that occurred in order to support a finding of liability. This requirement can be satisfied by showing that the instrumentality that caused the injury was ____________, but actual possession of the instrumentality is NOT necessary.

Answer 27

in the exclusive control of the defendant

Question 28

The doctrine of res ipsa loquitur is a means of establishing ________; it does not require a showing that the defendant’s conduct was the sole cause of the plaintiff’s injury.

Answer 28

breach of duty

Question 29

Res ipsa loquitur [does/does not] establish breach of duty as a matter of law.

Answer 29

does NOT

It is still up to the trier of fact to accept or reject the evidence.

Question 30

Does res ipsa loquitor switch the burden of proof to the defendant?

Answer 30

No

One of the effects of res ipsa loquitur is that no directed verdict may be given for the defendant, because when the res ipsa element has been proved, the plaintiff has made a prima facie case for negligence.

The doctrine, however, does NOT switch the burden of proof to the defendant and does NOT create a presumption of negligence. Furthermore, it does NOT require the defendant to present evidence of due care in rebuttal.

If the jury elects not to infer negligence, it may find for the defendant even if the defendant presents no evidence on that issue.

Question 31

Does res ipsa loquitor create a presumption of negligence?

Answer 31

No.

One of the effects of res ipsa loquitur is that no directed verdict may be given for the defendant, because when the res ipsa element has been proved, the plaintiff has made a prima facie case for negligence.

The doctrine, however, does NOT switch the burden of proof to the defendant and does NOT create a presumption of negligence. Furthermore, it does NOT require the defendant to present evidence of due care in rebuttal.

If the jury elects not to infer negligence, it may find for the defendant even if the defendant presents no evidence on that issue.

Question 32

Does res ipsa loquitor require the defendant to present evience of due care in rebuttal?

Answer 32

No.

One of the effects of res ipsa loquitur is that no directed verdict may be given for the defendant, because when the res ipsa element has been proved, the plaintiff has made a prima facie case for negligence.

The doctrine, however, does NOT switch the burden of proof to the defendant and does NOT create a presumption of negligence. Furthermore, it does NOT require the defendant to present evidence of due care in rebuttal.

If the jury elects not to infer negligence, it may find for the defendant even if the defendant presents no evidence on that issue.

Question 33

Does compliance with a statute establish due care?

Answer 33

Compliance with an applicable statute does not necessarily establish due care, because due care may require more than is called for by the statute.

Nevertheless, compliance with a statute is admissible as evidence that a defendant may have acted with due care.

Question 34

Defamation is presumed if:

Answer 34

1. libel (in writing or other permanent form)
   or
2. slander per se (business or profession, loathsome disease, crime of morel turpitude, unchastity of woman)

Question 35

4 categories of slander per se:

Answer 35

1. business or profession
2. loathsome disease
3. crime of morel turpitude
4. unchastity of woman

Question 36

In what defamation cases must a plaintiff prove that the statement was false?

Answer 36

1. P is a **public figure **
   or
2. defamation involves a matter of public concern

Question 37

Intentional Misrepresentation (Fraud)

Answer 37

Misrepresentation by the defendant with scienter (knowledge of falsity or reckless disregard as to truth/falsity) and intent to induce reliance, causation (actual reliance on misrepresentation), justifiable reliance, and damages

Question 38

Negligent Misrepresentation

Answer 38

Misrepresentation by the defendant in a business or professional capacity, breach of duty to the plaintiff, causation (actual reliance on misrepre-sentation), justifiable reliance, and damages

Question 39

Interference with Business Relations

Answer 39

A valid contractual relationship or business expectancy of the plaintiff and a third party, the defendant’s knowledge of the relationship, intentional interference by the defendant inducing a breach or termination of the relationship, and damages.

Question 40

For discovered and anticipated trespassers, the landowner owes a duty to ____________ known highly dangerous artificial conditions if not obvious to the trespasser.

Answer 40

warn or make safe

Question 41

For discovered and anticipated trespassers, the landowner owes a duty to warn of or make safe ________________ if not obvious to the trespasser.

Answer 41

known highly dangerous artificial conditions

Question 42

When two acts bring about an injury and either one alone would have sufficed, either of the acts is an actual cause of the injury if it was a ____________ in bringing it about.

Answer 42

“substantial factor”

Question 43

A product has a ____________ defect when it varies from the other productsin the manufacturing process and is dangerous beyond the expectation of theordinary consumer

Answer 43

manufacturing

Question 44

A product has a ________ defect when all products of the line have dangerous characteristics because of mechanical features, packaging, or inadequate warnings, and a less dangerous modification or alternative was economically feasible.

Answer 44

A product has a design defect when all products of the line have dangerous characteristics because of mechanical features, packaging, or inadequate warnings, and a less dangerous modification or alternative was economically feasible.

Question 45

The general rule is that a principal is not vicariously liable for the torts of an independent contractor, unless:

Answer 45

1. The independent contractor is engaged in inherently dangerous activities
2. The principal’s duty cannot be delegated because of public policy considerations

Question 46

Regardless of whether vicarious liability applies, the defendant can be liable for ________.

Answer 46

his own negligence

e.g., negligence in hiring the employee, supervising the child, or entrusting the car to the driver

Question 47

If joint and several liability applies, ________ allows a tortfeasor who paid more than his share of the damages to recover the excess from other tortfeasors in proportion to their fault.

Answer 47

contribution