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Virginia Bar Torts > Other Torts Issues > Flashcards

Other Torts Issues Flashcards

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1
Q

Strict Liability and Domesticated Animals

A

For injuries caused by domesticated animals, there is no strict liability.

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2
Q

Strict Liability and Domesticated Animals Exception

A
  • The possessor is strictly liable if he has knowledge of the animal’s vicious propensities
    • Measured by every particular animal, not by the species.
      • e.g. a dog that bites humans without provocation.
    • What gives possessor knowledge?
      • If dog bit someone before. First bite is not SL, but on notice after that
  • Exception to the exception: even if you have knowledge of animal with vicious propensities, no liability if P is trespasser on land
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3
Q

Strict Liability and Wild Animals

A
  • If a person keeps a wild animal, strict liability is imposed.
  • No need for knowledge of viciousness.
  • Doesn’t matter if animal keeper took precautions to cage up animals.
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4
Q

Abnormally Dangerous Activities

A

A defendant is strictly liable when he engages in abnormally dangerous activities.

Must be:

  • One which creates foreseeable risk of serious harm even when reasonable care is being exercised.
  • Uncommon in the area where it is being conducted.
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5
Q

Three typical types of abnormally dangerous activities

A
  1. Anything involving blasting or explosions
  2. Toxic chemicals/biohazard
    1. Contained viruses
  3. Nuclear stuff/anything involving high doses of radiation
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6
Q

VA law on products liability

A
  • Virginia has not allowed strict liability for injurious products.
  • But, if a plaintiff is injured by a defective product, Virgnia allows the plaintiff to assert a breach of warranty of merchantibility claim against the seller or anyone in the distribution chain (no need to prove privity).
  • The plaintiff can then be compensated for pain and suffering.
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7
Q

Defective Products MBE Tip

A

If MBE question specifies a legal theory, apply the theory that is specified.

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8
Q

Four products liability elements (MBE)

A
  1. D must be a merchant
  2. P must establish that the product is defective
  3. There must be a showing that the product has not been altered since it left D’s control
  4. P must show that he was making a foreseeable use of product at the time of injury
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9
Q

Products Liability Element 1 (MBE)

D must be a merchant

A
  • Goods merchants only
  • If they also do a service, they are only strictly liable for goods they sell in addition to that service
  • Commercial lessors are merchants and strictly liable.
  • Parties up the distribution chain are merchants and strictly liable.
    • no need to prove privity of contract
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10
Q

Strict Liability Element 2 (MBE)

P must establish that the product is defective

A
  • Main issue in most real-world cases
  • Often stipulated in exam, just by calling the item defective.
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11
Q

Products Liability Element 2 (MBE)

P must establish that product is defective

3 different kinds of defects

A
  1. Manufacturing defect
  2. Design defect
  3. Information defect
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12
Q

Products Liability Element 2 (MBE)

P must establish that product is defective

3 different kinds of defects

A
  1. Manufacturing defect
  2. Design defect
  3. Information defect
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13
Q

Products Liability Element 2 (MBE)

P must establish that product is defective

Defect Type 1- Manufacturing defect

A
  • Product is a defect when it differs from all other products that came on that assembly line in a way that makes it more dangerous than consumers would expect.
  • Alternative (interchangeable) test: defect when it departs from its intended design
  • Product is one in a million, bad one that slipped thru

(Easiest and most common on the exam because it’s the only defect that involves true SL and non-controversial laws)

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14
Q

Products Liability Element 2 (MBE)

P must establish that product is defective

Defect Type 2- Design defect

A
  1. Design defect if there is another way product could have been built that would have been less dangerous
    1. i.e. safer alternative design
  2. Risks of product’s design outweigh its benefits
  3. P must show Alternative way to build product that has same utility with far less risk.
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15
Q

Products Liability Element 2 (MBE)

P must establish that product is defective

Defect Type 2- Design defect

3 Alternative Design Tests

A

P’s alternative design must be:

  • Safer
  • Economical- doesn’t cost much more to make
  • Practical-doesn’t make product hard to use
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16
Q

Products Liability Element 2 (MBE)

P must establish that product is defective

Defect Type 3- Information defect

A
  • If risk is not obvious to user, product is defective without adequate warnings and instructions
  • Not all warnings are created equal
  • If product can be redesigned to be safer at low cost without sacrificing utility, p not immunized from liability by giving adequate warnings.
    • i.e. design defects cannot be cleansed by adequate warnings.
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17
Q

Products Liability Element 3 (MBE)

Presumption of Unaltered Product

A
  • Presumption that product that has moved ordinary channels of distribution in the same condition it was when it left earlier party’s hands.
    • If D rebuts presumption, P must show that the product hasn’t been altered since it left D’s control.
  • Up to D to show it wasn’t in same condition.
    • This is not an element unless D pleads it in the case.
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18
Q

Products Liability Element 4 (MBE)

Foreseeable Use of Product

A
  • P must show that he was making a foreseeable use of product at the time of injury
    • Some misuses are still foreseeable, e.g. standing up on a chair.
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19
Q

Products Liability Defense

A
  • Comparative Responsibility (comparitive negligence)
  • P assigned percentage of liability and reduction of damages
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20
Q

Nuisance Definition

A
  • An unreasonable interference with your ability to use and enjoy your own real estate because of sights, sounds, odors, etc…
  • More about a type of harm than a claim.
  • You sue for nuisance but it’s not its own legal theory.
  • Most problems involve inconsistent land use (bad neighbors), commercial properties typical.
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21
Q

Intent Requirement for Nuisance

A
  • You can sue if party who creates this harm is acting either intentionally or negligently in connection with the harm.
  • Intentional: concluding to do something with knowledge of consequences.
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22
Q

Nuisance Elements and Considerations

A
  • Nature of the nuisance has to be “intolerable”.
    • More than normal friction of living in crowded societies. e.g. mowing lawns early, churches ringing bells
  • Courts balance interests
    • D has right to use land as he sees fit so long as it is legal and within zoning, but should not render neighboring parcels uninhabitable.
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23
Q

Vicarious Liability Definition

A

Relationship between tortfeasor and passive party.

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24
Q

4 Types of Vicarious Liability Relationships

A
  1. Employer and Employee;
  2. Independent Contractor;
  3. Auto Owner and Auto Driver
  4. Parent and Child
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25
Q

Employer and Employee Vicarious Liability

A
  • Employer vicariously liable for employee’s torts within scope of his employment
    • Scope of employment: employee acting during business hours to advance boss’s agenda.
  • If employee commits intentional torts, outside the scope of employment
    • However, there are cases where intentional torts are in the scope of employment, like if the job generates tension, e.g. repo man.
    • If use of force part of job, intentional torts are within the scope of employment e.g. nightclub bouncer.
  • Even misguided efforts to serve employer are within the scope of employment
26
Q

Independent Contractor Vicarious Liability

A
  1. General rule: No vicarious liability
  2. Independent contractor operating at a business
    • business owner liable for independent contractor’s negligence (non-delegable duty doctrine)
27
Q

Auto Owner and Driver Vicarious Liability

A
  • Owner of car not vicariously liable for torts of drivers.
    • Exception: driver is doing owner’s errand. They’re owner’s agent.
    • VA: no exceptions
28
Q

Parent and Child Vicarious Liability

A
  • Parent not vicariously liable for torts of kids. Kids covered by homeowners ins. and often have prop in their own name.
  • In VA: Parent liable when the child commits willful or wanton prop damage.
29
Q

Joint/Several Liability

A
  • Juries assign defendants percentages based on their degree of fault.
  • P is not bound by the jury’s numbers, can get all damages from any of the defendants.
    • But, D2 is bound to D1 to contribute its share. Comparative contribution.
30
Q

Joint/Several Liability Exceptions

A
  1. If first defendant vicariously liable can get 100% of money back from active tortfeasor
  2. Retailer strictly for product can get indemnity from manufacturer
31
Q

Joint/Several Liability In VA

A

No percentages. Equal fractional shares only. Classic contribution.

32
Q

Loss of Consortium

A
  • Spouse of victim entitled to seperate cause of action against tortfeasor
  • Can get compensation for:
    • Loss of services (things spouse used to do)
    • Loss of society (companionship)
    • Loss of sexual relations
33
Q

3 Defamation Elements

A
  1. P must show D made a defamatory statement that specifically identidies the plaintiff.
  2. Statement must be published
  3. Damages
34
Q

Defamation Element 1

Defamatory Statement Definition

A
  • Statement that adversely affects reputation.
  • Lowers the subject in the estimation of the community, or deter third persons from associating with them.
    • i.e. Purportedly factual in nature and reflects adversely on some trait of character.
  • Statements of opinion usually unactionable.
    • Only opinions that imply an underlying factual basis can be defamatory.
    • Mere name calling is not defamatory
35
Q

Defamation Element 1

“Specifically Identifies”

A
  • Specifically identifies P does not mean you have to say his name
  • P must be alive for statement to be defamatory.
36
Q

Defamation Element 2

Statement must be published

A
  • Must be shared with the public.
    • Public can be one person other than P and D.
    • Likely to recover more money the more widely broadcast the statement was
  • Publication does not have to be intentional, can be negligent
    • Every person who repeats defamatory stmts are subject to liability as republishers
37
Q

Libel

A
  • Any defamatory stmt recorded in writing, digitally, etc
  • No damages need be proven. Damages are presumed.
  • But, the more you prove the more you get. Presumed damages will likely be small.
38
Q

Slander

A
  • Defamatory stmt that is spoken or oral in nature
  • Two groups:
    1. Slander per se
    2. Slander that does not fit per se requirements
39
Q

Slander per se

A
  • Same presumed damage treatment as libel.
  • 4 types of Slander per se stmts:
    1. any stmt relating to P’s business or profession
    2. stmt that P has committed a serious crime (serious determination can be fuzzy)
    3. Stmt imputing unchastity to a woman
    4. Stmt that P suffers from a loathsome disease (when you have the disease, someone loaths you) only two diseases—leprosy, venereal disease
40
Q

Slander not per se

A

If slander does not meet per se requirements, P must prove damages

41
Q

Slander damages

A

Economic harm. You lost a job, contract, etc… because of the stmt.

42
Q

Libel/Slander in VA

A
  • Libel and slander are treated the same.
  • Presumed damages for libel/slander only for the 4 categories.
  • Otherwise you must prove damages
43
Q

3 Defamation Defenses

A
  1. Consent
  2. Truth
  3. Privilege
44
Q

Defamation Defense 1

Consent

A

Same as in Intentional Torts

45
Q

Defamation Defense 2

Truth

A

If D can show that the statement is factually accurate, he defeats the claim

46
Q

Defamation Defense 3

Privilege Types

A

2 types:

  1. Absolute privilege
  2. Qualified privilege
47
Q

Absolute Privilege

A

Based on the identity of the D.

2 types:

  1. For communication between spouses
    1. Defamatory stmts between spouses about someone else privileged.
  2. Officers of the 3 branches of the gov’t in the conduct of their official work
    1. Most importantly applied in judicial branch. Extended to the judge, lawyers, and witnesses. So anything in court papers, pleadings, trial, etc… cannot be basis for defamation lawsuit
48
Q

Qualified Privilege Definition

A
  • Only applies if there is a public interest in encouraging candor
  • Decided on a case-by-case basis
    • Ex: References and recommendations
49
Q

Qualified Privilege Elements

A
  1. Person invoking privilege must have a reasonable and good faith basis for making the stmt.
    • Cannot make stuff up and get the privilege. Any mistakes must be honest ones
  2. Must be making relevant statements to the subject at hand, confined to relevant material
50
Q

Special Area of Defamation Law

Matter of Public concern

A
  • If subject of D’s stmt is a matter of public concern, additional rules apply
    • Courts haven’t defined what public concern is.
    • Likely newsworthy and widespread public interest and likely to be public discourse.
      • g.g. public officials.
51
Q

Additional Public Concern Rules

A
  • P must prove falsity of the stmt.
    • This just puts BoP on P, whereas falsity is presumed in other cases and it’s BoP on D to prove truth.
  • P has to show some degree of fault
    • Fault= stmt not made in good faith
    • Public figures must show stmt was made knowing it was false or of reckless disregard of truth or falsity i.e. malice
52
Q

Matter of Public Concern

Private figure in matter of public concern

A

If private figure in public concern, statement can be made negligently.

53
Q

Defamation in VA

A

All defamation Ps must show falsity and at least negligent fault

54
Q

4 Privacy Torts

A
  1. Appropriation
  2. Intrusion
  3. False Light
  4. Disclosure
55
Q

Appropriation

A
  • D uses P’s name or image for a commercial purpose without permission
  • Applies to everyone, not just famous people.
  • Newsworthiness exception- images can be put in newspapers, magazines, etc.. if it’s a newsworthy event
  • VA: This is the only privacy tort VA recognizes
56
Q

Intrusion

A
  • Invasion of the P’s seclusion in a way that would be highly offensive to a reasonable person
    • e.g. eavesdropping, wiretapping
  • Must have a reasonable expectation of privacy
57
Q

False Light

A
  • Widespread dissemination of material falsehood about P that would be highly offensive to the average person
  • Similar to defamation but here you get emotional/dignitary damages not economic ones.
  • Falsehood doesn’t have to be offensive, just the average person would be offended.
    • E.g. someone said you’re catholic when you’re jewish Many false light claims arise out of accidental behavior, but they’re still actionable.
58
Q

Disclosure

A

Widespread dissemination of confidential information that would be offensive to a reasonable person

59
Q

VA Governmental Tort Immunity

A
  • VA permits tort suits against the commonwealth and transportation districts.
  • Cap is either 100k or policy limits.
  • VA municipalities immune when engaged in governmental functions but may be liable when carrying out proprietary functions
60
Q

VA Charitable Immunity

A

Charitable institutions are immune from lability for negligence arising from acts of their servants and agents if due care has been exercised in their selection or retention

Virginia Bar Torts (10 decks)

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