Review of MBE subjects -- torts Flashcards
What level of scienter is required for the “publication” requirement in defamation?
Negligence is enough.
Absolute privileges for defamation are
- anything said only to spouse can’t be subject of claim
2. anything said in court or filings can’t be subject of claim.
Intrusion is
the tort of invading a plaintiff’s seclusion in a way that would be highly offensive to the average person. Applies only if you have a reasonable expectation of privacy where you are.
False light invasion of privacy is
widespread dissemination of falsehood about P that would be highly offensive to the average person.
tort of “false gossip”
Are there defenses to intentional misrepresentation?
NO.
Negligent misrepresentation applies only in
the business context.
Elements of interference with business relations
- existence of a K or business expectancy
- knowledge by D of that K or expectancy
- intentional interference inducing breach
- damages
**in MA, must prove interference was improper in motive or means.
Customizations of the reasonable person standard
operate as a ratchet: only one way (up but not down – unless kids)
Children under ____ owe no duty of care.
5
A person is liable for damage caused by attractive nuisance if
- he knew/should’ve known kids frequent the area
- the expense of fixing the problem was slight compared to the risk
- dangerous condition on the land of which landowner should have known, AND
- child was unable to appreciate the risk.
**Note that it doesn’t matter whether kid was lured onto land BY the nuisance.
Off-premises liability: Landowners have a duty to protect people off the premises from
unreasonably dangerous artificial conditions or structures abutting adjacent land.
In urban spaces, owner or occupier is liable for damages caused off premises by trees on the premises (falling branches).
foreseeability: intervening medical malpractice
FORESEEABLE.
foreseeability: intervening negligent rescue
FORESEEABLE
foreseeability: intervening protection or reaction force
FORESEEABLE
foreseeability: subsequent disease or injury from weakened state after first injury
FORESEEABLE
In negligence cases, damages will
not be presumed.
In comparative negligence jurisdictions, express assumption of the risk is
still a complete defense.
In comparative negligence jurisdictions, P’s negligence is _______ when D’s conduct was willful or wanton, and is _______ when D’s conduct was intentionally tortious.
taken into account; not taken into account (i.e. no defense)
Assumption of risk is NOT a defense to
intentional torts, but it is a defense to wanton or willful misconduct.
Last clear chance doctrine is
plaintiff’s rebuttal to a charge of contributory negligence. If defendant had the last clear chance to avoid the accident, plaintiff can win even if she was contributorily negligent.
Contributory negligence is NOT a defense to
wanton or willful misconduct or intentional torts.
Damages ARE/ARE NOT reduced when P receives benefits from another source (like insurance)?
NOT reduced.
Test for abnormally dangerous activities that get strict liability is activities that
create serious risk of harm even when reasonable care is exercised by all, AND
activity is not a matter of common usage in the community.
A prima facie case for strict liability is made out by proving:
- absolute duty to make safe
- causation (actual & foreseeable)
- damage to person or property
Liability for animals:
- strict if they are wild
- not strict if they are domesticated, unless owner knows of their dangerous propensity – but normally dangerous acts by domesticated animals don’t qualify as “dangerous propensity” (e.g. honeybees, bulls)
- Strict liability for animals is NOT typically available for trespassers – owner must have been negligent.
- GUARD DOGS – may be liable even to trespassers under an intentional tort theory, but not if the trespasser knew you had a vicious dog and entered anyway.
Where an abnormally dangerous activity is involved, a plaintiff’s own negligence
may reduce recovery. (In contributory negligence states, recovery won’t be barred just because P failed to discover the problem or misused product in a reasonably foreseeable way, but assumption of risk is a defense.)
For strict products liability, must have these four elements:
- seller is a commercial supplier
- product must be defective (design, manufacturing, warning)
- product must NOT have been altered since leaving merchant’s hands
- plaintiff must be injured while making a foreseeable use of the product.
A dealer of products who buys from a reputable manufacturer can avoid negligence liability for defects of the product if she
makes a cursory inspection.
Disclaimer of liability is
never a defense in personal injury or property damage cases based on negligence or strict liability.
The protections of an implied warranty on a good extend to
buyer’s family, household, and guests who suffer personal injury.
For warranty theories, you need not prove ______ and you can recover ______ damages.
fault; purely economic (in addition to property damages and personal injury)
The protections of an express warranty on a good extend to
anyone – consumers, users, bystanders. Warranty must have been basis of bargain if buyer sues, but if bystander sues, it’s fine as long as someone relied on the warranty.
Sellers are liable for misrepresentation of fact when these elements are met:
- statement was of a material fact concerning quality or uses of goods (not “mere puffery”).
- seller intended to induce reliance by the buyer in a particular transaction.
In nuisance cases, self-help is
permitted after notice to defendant and D’s refusal to act, but only necessary force may be used.
Buying land next to an already existing nuisance
does not limit your ability to recover.
Family car doctrine:
a person is liable for torts of immediate family or household members who drive with the owner’s permission.
