Review

Question 1

What are the most common theories of suit?

Answer 1

Step 1

1) Intentional tort
2) Negligence (esp. when they don’t tell you)
3) Strict liability

Step 2

Recall the basics

Intentional tort - elements and defenses

Negligence - Elements and attention to care

Liability - Strict plus possible defenses

Question 2

What is tortioustransferred intent?

Answer 2

As long as ∆ has requisite intent at beginning of an intentional tort, the intent req is satisfied even if:

(i) a DIFFERENT PERSON gets hurt OR
(ii) a DIFFERENT TORT is committed

Question 3

Bad answers

Answer 3

(1) Not liable bc someone else is liable

Question 4

What are the 2 elements of battery?

Answer 4

1) Intentionallycommit a harmful ORoffensive contact

Intent = is satisfied as long as the ∆ knew with substantial certainty that the harmful/offensive contact would take place

Offensive = violates a reasonable sense of personal dignity(i.e. if it’s unpermitted by a person of ordinary sensitivity)

2) Contact must be with the π’s “person”

“Person” includes anything that is connected to the π (what’s he’s holding, touching, etc)

NOTE: damages are not required (π can recover nominal damages)

Question 5

What istrespass to chattels?

(versus conversion?)

Answer 5

Trespass to chattels:
∆ intentionally interferes with π’s right of possession in a chattel

Types of interference =

(i) intermeddling (directly damaging chattel); OR
(ii) dispossession (depriving π of lawful right to possess)

∆’s mistake as to ownership will not insulate from liability

Remedy: Cost of repair

Conversion:
Requires interference so serious that it warrants requiring ∆ to pay FULL value

Factors of serious interference:
(i) the withholding pd;
(ii) the extent of the use/damage
Remedy: Full mkt value (a forced sale) at the time of the CONVERSION

Question 6

When can private necessityexcuse toa ∆’s intentional tort to property (land, chattels, conversion)?

Answer 6

If there is an emergency, which requires protection of∆’sprivate interest

The ∆ IS liable for actual damages to π’s property, BUT is not liable for nominal/punitive damages

As long as the emergency continues, the ∆ CANNOT be expelled, evicted or ejected; there is a “right of sanctuary”

Question 7

What’s difference between IIED and NIED?

Answer 7

NIED
Damages - Physical harm

IIED
Damages - Emotional distress

Question 8

What are the 3 elements of negligence per se?

NOTE: NY Distinction

Answer 8

1) the statute provides for criminal penalty that clearly defines std. of conduct
2) π is w/ in class of ppl that the statute is meant to protect
3) the statute was designed to prevent the type of harm suffered by π EXCEPTIONS:

(i) compliance more dangerous than violation (e.g. cross yellow lines to avoid hitting child); and
(ii) impossibility of compliance (e.g. heart attack caused violation)

NY DISTINCTION:ONLY state statutes (NOT local ordinance/reg.) will establish negligence per se (otherwise only some evidence of negl.)

Question 9

When is there an affirmative duty to act (the failure todo so constituting breach)?

NOTE: NY Distinction

Answer 9

General Rule: NO affirmative duty to act

3 Exceptions, which necessitatesdoing what’s reasonable under circumstances(no requirement of martyrdom)

(i) Preexisting relationship: family member; common carrier; innkeeper; business owner/invitee
(ii) Δ created the danger
(iii) ∆ assumed responsibility (attempted to rescue)&raquo_space; liable for negligent rescue

NY Distinction: For medical professionals, an attempted rescue is only actionable if grossly negligent (Good Samaritan Law)

Question 10

10 Different Standards of care

Answer 10

1 - General

Reasonable person

2 - Child

Reasonable for a child

3 - Professional

Member of community in good standing; exercise sp knowledge if not held by others

4 - LO as to trespasser

No duty by condition on land

5 - LO as to known trespasser

Warn about concealed, known artif condition known to cause death/ serious injury

6 - LO as to child trespasser

Reasonable care to prevent harm from dang artif cond on property

7 - LO as to licensee (soc. guest/ workmen)

Warn about concealed, known condition known to occupier

8 - LO as to invitee (customer and their kids)

Warn about concealed dang condition occupier knew or should have known

9 - Common carrier

High degree of care (slight negligence is a problem)

10 - Manufacturer

Question 11

Dir verdict

Answer 11

1 - ID tort

2 - Recall elements of tort

3 - Check facts to tort

Question 12

How does comparative negligence work?

Answer 12

π’s negligence is not a complete bar to recovery, but her recovery is reduced to the extent (%) that she is negl. in causing the injury; two types…

Pure (default): π’s recovery is reduced by % of her fault

Modified/partial: if π is ≥ 50% negligent, then she get’s NO recovery

NY DISTINCTION: π may recover even if the π’s negligence % is greater than the ∆’s (BUT if π’s conduct was illegal, NO recovery)

Question 13

What is the prima facie case forstrict products liability?

Answer 13

1) Merchant ∆ that routinely deals in this type of a product

Traps:

(i) casual seller is NOT merchant;
(ii) service provider (i.e. they offer products incidentally to services)is NOT merchant of products used;
(iii) commercial lessors ARE merchants (e.g. car rental company); (iv)every party in distribution chain IS a merchant

NOTE: Privity is not required (users, consumers and bystanders can all sue)

2) Production OR sale of a defective product
(a) Manufacturing defect: aberration/anomalyin batch from same assembly line
(b) Design defect: (i) hypothetical alternative design is (1) safer, (2) economical, AND (3) practical

NOTE: Failure to conform to a gov’t regulation is CONCLUSIVE proof of a defective design (BUT compliance with gov’t regulation is NOT conclusive evidence of a non-defective product)

NOTE: Can be LEGALLY DEFECTIVE if unreasonably dangerous

(c) Inadequate warnings defect:exists if
(i) the product has residual risks that cannot be designed out;
(ii) the consumers will not be aware of the risk; AND
(iii) the product does not have adequate warnings

3) Not altered in any way (i.e. defect existed when it left Δ’s hands)

Presumed if product moved in normal distribution chain If π buys secondhand, then he’d have to prove non-alteration

4) π’s FORESEEABLE use of the product

NOT limited to intended uses, but to foreseeable uses (e.g. chair to change lightbulb)

NOTE: products liability can be brought under OTHER theories of tort [intent, ordinary negl., warranties of merchantability/ fitness, and representation (warranties)]

Question 14

What are strict liability non-defenses?

Answer 14

1) Defendant was very careful
2) Contrib negligence
(3) Misuse (if foreseeable)
4) Pl didn’t purchase the product directly/ indirectly

Question 15

What are the 2basicstrict liability fact patterns?

Answer 15

1) Injuries Caused byWILD animals

Domestic: ONLY S/L if Δ knew of dangerous propensity; Wild: S/L for wild animals kept by Δ

NOTE: doesn’t matter if the animal is COMMON or UNCOMMON for the community

EXCEPTION: ∆ would never be strictly liable for trespasser on property (even if domestic animal has vicious propensity and the owner has knowledge)

2) Ultra-Hazardous Activities Elements:
(i)creates a foreseeable risk of serious harm, EVEN when reasonable care is exercised (i.e can’t be made safe);
(ii) uncommon activity in area where occurring
E.g. blasting/explosives; toxic chemicals; nuclear, brakes, cancer treatments

NOTE: the dangerous aspect of the activity has to be the actual/proximate cause of π’s injury for S/L to stick

Question 16

What are the 5 elements of defamation?

NOTE: NY Distinction

Answer 16

1) Defamatory language of OR concerning the π

Defamatory = if it adversely affects the reputation the subject of that stmt (i.e. name calling&raquo_space; never; fact-based opinion&raquo_space; maybe) Has to be concerning a living person

Stmts abt a group:

(i) large group = NO one is defamed
(ii) small group = π may recover if it can be reasonably be associated with π

2) Publication (intentionally OR negligently)by ∆ to a 3d person (NOT just π)

NO de minimis req: revealing to ONE 3d person is sufficient for publication

Primary publishers (newspapers, etc) are ALWAYS liable;

Secondary publishers (newspaper stand, etc) MAY be liable (if they knew of defamatory content)

3) Damage to π’s reputation (type depends on type of defamation)
(a) Libel (written/printed/broadcasted publication of defamatory language):

Damages - General damages are PRESUMED; no need to prove special damages

(b) Slander (spoken defamatory language): UNLESS slander per se [(i) related to π’s business/profession; (ii) π has committed crime of moral torpitude (e.g. fraud); (iii) the woman π is unchaste; (iv) π has loathesome disease (leprosy; or STD)]

Damages - π has to prove special economic damages

NY DISTINCTION: there is an additional slander per se category available: imputation of homosexuality

[1st Am reqs] ONLY IF matter of “public concern”…

4) Falsity of the defamatory language

If stmt is TRUE, then NO c/a for defamation

5) Fault on ∆’s part (depending π’s status)

If π is PUBLIC OFFICIAL OR FIGURE, π has to prove:

(i) malice (knowledge that stmt is false OR reckless disregard as to its truth) to get damages

If π is PRIVATE PERSON (AND matter of PUBLIC CONCERN), π has to prove at least negligence as to stmts falsity to get damages for ACTUAL INJURY

NOTE: liability for IIED for defamatory speech MUST meet the defamation stds and CANNOT exist for speech otherwise protected by the 1st Am

Question 17

Invasion of privacy takes what 4 forms?

Answer 17

1 - Use of name/ pic for commercial adv w/o intent

2 - Unreasonable into priv area

3 - Statements unreasonably putting π in false light

4 - Unreas pub of priv facts even if they’re true

Question 18

*What are the 3 theories of breach of duty?

Answer 18

1) Custom or usage to define standard of care: if ∆ acts differently from the custom that everyone else follows NOT controlling as to whether as to whether conduct was negligence (as the entire industry/sector/etc may be negligent)
2) Violation of statute (Negligence per se): if the ∆ violates a duty as established by statute
3) Res Ipsa Loquitur:π can’t specifically explain what Δ did to cause the injury (e.g. barrel mysteriously falls from warehouse); If π can prove3 elements (inference of negligence), it goes to jury (i.e. no summary judgment)…

Accident of type that doesn’t normally occur in the absence of negligence

Negligence is usually committed by someone in Δ’s position (Δ had exclusive cntl of instrument of injury)

π was not contributorily negl. in the injury

Question 19

What rights to parents have for loss of child? Children for loss of parents?

Answer 19

Parents claim - Loss of services

Child’s claim - none

Question 20

What acts are waived from gov’t immunity?

Answer 20

Ministerial (not discretionary)

Question 21

What are the government’s immunities?

Answer 21

Following actions:

(i) malicious prosecution;
(ii) assault;
(iii) battery;
(iv) false imprisonment;
(v) false arrest;
(vi) abuse of process;
(vii) libel and slander;
(viii) misrepresentation and deceit; and
(ix) interference with contract rights.

Question 22

What is public duty doctrine?

Answer 22

Doctrine that limits the scope of government liability.

Std: Requires a special relationship between the municipality and the plaintiff.

Question 23

What does municipal immunity immunize and not immunize?

Answer 23

Immunize - Discretionary/ government functions/ ministerial

Excluded - Proprietary functions

Question 24

How can survivors of a π recover under wrongful death?

NOTE: NY distinction

Answer 24

Thisis NOT a tort; procedural devise allows family members to stand in shoes of deceased

Pecuniary damages ONLY (money deceased would have earned if lived); NOT pain & suffering

If affirmative defense could have been asserted vs. deceased, then it can be asserted vs. survivors

NY DISTINCTION: must be brought w/in 2 years of death; NO loss of consortium; punitive damages ARE recoverable

Question 25

What is the apportionment method used by the majority of states for contribution?

Answer 25

Tortfeasors pay in proportion to relative fault

Question 26

What is release?

Answer 26

Plaintiff surrendering claim ag a Def

Question 27

What are products liability cases based in intentional torts?

Answer 27

Not common.

Defendant will be liable to anyone injured by an unsafe product under an intent theory if he intended the consequences or knew that they were substantially certain to occur.

Damages - includes punitive and compensatory

Question 28

What are relevant factors in determining if alternative design was available?

Answer 28

1. Usefulness and desirability of the product;
2. Availability of safer alternative products;
3. The dangers of the product that have been identified by the time of trial;
4. Likelihood and probable seriousness of injury;
5. Obviousness of the danger;
6. Normal public expectation of danger (especially for established products);
7. Avoidability of injury by care in use of the product (including the role of instructions and warnings); and
8. Feasibility of eliminating the danger without seriously impairing the prod

Question 29

When does an express warranty arise?

Answer 29

When a seller or supplier makes an affirmation of fact or promise to the buyer relating to the goods in question that becomes part of the basis of the bargain.

Question 30

What are the 5 theories of prod liability?

Answer 30

1) Intentional tort
2) Negligence
3) Strict liability
4) Implied warranties of merchantability and fitness for a particular purpose; AND
5. Representation theories (express warranty and misrepresentation).

Question 31

What are the 3affirmative defensesto prima facie negligence (duty, breach, causation, damages)?

NOTE: NY Distinction

Answer 31

1) Contributory negligence: negl on part of π that contributes to her injury that COMPLETELY bars π’s recovery

Contributory negl. is a minority rule

Contributory negl. is NOT a defense to wanton/willfull misconduct or intentional tortious conduct

Imputed contributory negligence: Allows defendant to use the contributory negligence of a third party as a defense against the plaintiff, where the plaintiff and the third party stand in a particular relationship.

Last Clear Chance Exception: π is STILL able to recover n/w/s being contributorily negl. if ∆ had last chance to avoid the accident

2) Assumption of risk:

π is denied recovery if she assumed the risk of any damage caused ∆’s act

NOTE: Most comparative negl. jx have ABOLISHED the separate defense of “implied assumption of risk”→ would just analyze the π’s conduct under comparative negl. principles

Assumption of risk is NOT a defense to intentional tortious conduct (but it IS A DEFENSE to wanton/reckless misconduct)

Yes - baseball park (no breach)
No - common carrier disclaimer

NY DISTINCTION:assumption of the risk has been abolished, but cts still use label, “primary assumption of the risk”, which applies ONLY to participants or spectators in sporting/recreational activities

3) Comparative negl.: π’s negligence is not a complete bar to recovery, but her recovery is reduced to the extent (%) that she is negl. in causing the injury; two types…

Pure (default): π’s recovery is reduced by % of her fault

Modified/partial: if π is ≥ 50% negligent, then she get’s NO recovery (MAJORITY)

NY DISTINCTION: π may recover even if the π’s negligence % is greater than the ∆’s (BUT if π’s conduct was illegal, NO recovery)

Question 32

What is theEggshell Skull Rule AND the Collateral Source Rule?

NOTE: NY Distinction

Answer 32

Eggshell Skull Rule: the ∆ takes π as she finds him…if ∆ is negligent (i.e. duty, breach, causation), then Δ pays for ALL damages

Collateral Source Rule: damages are not reduced just b/c π received benefits from other sources (i.e. health insurance)

NY DISTINCTION: NY has abolished the collateral source rule; π’s damages are REDUCED by collateral pmts

Question 33

What are the 2 elements of false imprisonment?

Answer 33

1) ∆ must commit act of restraint/confinement

Sufficient restraint/confinement =

(i) physical barriers;
(ii) physical force;
(iii) actionable threats of immediate force;
(iv) failure to release; and
(v) invalid use of legal authority

Act of restraint only counts if π knows of it OR is harmed by it (if π is unaware AND unharmed, then there can be no tort c/a for false imprisonment)

2)π must be confined in a bounded area

An area is NOT bounded, if there is a reasonable way to escape that π can reasonably discover (If it’s disgusting, hidden, humiliating OR dangerous, then it’s NOT reasonable)

Amt of time confined is IRRELEVANT

NOTE: damages are not required (π can recover nominal damages)

3) Intent
4) Causation

Question 34

What are the 2 elements ofnegligent infliction of emotional distress?

NOTE: NY Distinction

Answer 34

1) π is in zone of danger
2) Serious subsequent physical manifestation

EXCEPTION 1: if π is not in zone of danger, but witnesses injury to 3d party; this requires:

(i) close relationship b/t π and 3d party;
(ii) the presence of π at scene of injury AND π’s observing (sight, sound, smell) the accident

NY DISTINCTION: w/ this exception, π STILL has to be w/in zone of danger AND have a immediate family relationship (nuclear family, not extended)

EXCEPTION 2: if π is not in zone of danger, but is in a special relationship w/ ∆where it is very foreseeable that carelessness will cause distress (e.g. Dr. negligently telling patient he has AIDS when he doesn’t)

Question 35

How does π establishproximate/legal causation?

Answer 35

1) Direct causes:π’s injury a immediately foreseeable result of Δ’s breach; ∆ is not liable for unforeseeable harmful results not within risk created by ∆’s negl.
2) Indirect causes: when there are intervening causes (increasing π’s injury),original Δ IS STILL liable for intervening (a) negligent medical treatment (e.g. malpractice); (b) intervening negligent rescue; (c) intervening reactions to protecting property/person; (d) subsequent accident/disease to π; (e) foreseeable independent intervening forces if ∆ increased the riskof harm by that force(e.g. theft, acts of God, etc)

Superseding cause

(1) Unforeseeableindependent intervening forceOR
(2) Intentional tort by 3d person

Result: No ∆ liability)

Question 36

What are the 2 elements of trespass to land?

Answer 36

1)PHYSICAL invasion

Physical Invasion =

(i) physical entrance onto property;
(ii) propelling/throwing/tossing something physical onto land;

BUT NOT (iii) intangible forces (light, smells, sounds, etc)

2)Must interfere w/ π’s exclusive possession of real property

Real property = includes not only the surface BUT ALSO airspace and subterrain (at reasonable distances)

Belongs to person in possession, not necessarily the owner (the lessee)

NOTE: Damages are not required (π can recover nominal damages)

Question 37

What is valid consent to an intentional tort?

Answer 37

1) Express consent= spoken/written “words” by π, giving ∆ permission to behave in a certain way

Express consent is not a valid defense if obtained via fraud (as to essential matter), duress (threats);OR π’s mistake (if ∆ took advantage of that mistake)

2) Implied consent = two types…

Apparent consent = Consent based on ∆’s reasonable interpretation of π’s objective conduct/body language (NOTE: this applies ONLY to NORMAL contactinherent in sports, ordinary incidental contact like on a train, etc)

Consent implied by law = arises when it’s necessary to save a person’s life (or other important interest in person or property)

NOTE: Incapacitated individuals (incompetents; drunks; etc) are DEEMED INCAPABLE of consent; BUT children can consent to an age appropriate invasion of their person

NOTE: All consents have a scope, and if ∆ exceeds the scope, then he will be liable for the tort

Question 38

Who are 2 victims’s who are presumptively foreseeable(so are owed a duty whether or not actually foreseeable)?

NOTE: NY distinction

Answer 38

1) Rescuers: Injuries to rescuers are ALWAYS (presumptively) foreseeable (“danger invites rescue”)

E.g. Reckless pl. that endangers self

2) Fetuses: negligent Δ injures pregnant lady
(a) If fetus is born dead: mother has a claim, but baby’s estate CAN’T bring claim
(b) If fetus born alive w/ defects: injury to baby is foreseeable&raquo_space; (i)baby can recover; (ii) parents can recover for marginal costs given defects
(c) If there is a botched sterilization (“wrongful birth”): can get damages for child rearing expenses

NY DISTINCTION: parent’s CAN’T recover b/c “joy of new child outweighs marginal expenses”