Themis Essay - Torts Flashcards
Strict Liability
A defendant engaged in an abnormally dangerous activity will be held strictly liable – without any proof of negligence – for personal injuries and property damage caused by the activity.
o Elements—absolute duty, breach, causation, damages, & defenses
o Abnormally dangerous activities
o Animals—wild and domestic (if owner knows of dangerous propensities)
Exam Tip 8: Strict liability focuses on the danger of the activity, regardless of how careful the defendant acts. If the activity is abnormally dangerous, a defendant will be held strictly liable for injuries.
Products Liability
o Strict products liability
Product defective when sold—manufacturing or design defect, and failure to warn
Actual & Proximate Cause
Damages & defenses
o Negligence—duty, breach, causation, & damages
Defamation
o Defamatory language
o Of or concerning P
o Publication by D to a 3rd person
o Damage to P’s reputation
o Matters of public concern
Falsity (private figure = negligence; public figure = malice)
Fault
o Defenses—truth, consent, and absolute/qualified privileges
o Warranties—implied and express
Invasion of Privacy
o Misappropriation
o Intrusion upon seclusion
o False light
o Public disclosure of private facts
Intentional Torts
o False Imprisonment
o Trespass to Chattels
o Battery
o Conversion
o Assault
o Trespass to Land
o IIED
o Nuisance
Landowner Duties
- Modern approach: a standard of reasonable care applies to all land entrants except trespassers
- Traditional approach: the standard of care owed to land entrants depends upon the land entrant’s status as an invitee, a licensee, or a trespass
o Invitee – public invitee or business visitor (e.g., customer in a store)
o Licensee – someone who enters with the land possessor’s permission or with a privilege (e.g., social guest)
o Trespasser – someone who lacks consent or privilege to be on the land
Children Duty
standard of care is that of a reasonable child of similar age, intelligence, and experience—unless the child is engaged in a high-risk activity characteristically undertaken by adults
Attractive Nuisance
often arises when a trespassing child is injured by an artificial condition on the land
Physical Characteristics Standard of Care
(e.g., blindness) and custom are taken into account
Professionals – subject to a heightened standard of care
Res Ipsa Loquitur
a doctrine that allows the trier of fact to infer the existence of a defendant’s negligent conduct in the absence of direct evidence of such negligence, is unlikely to be tested.
Negligence Per Se
When a statute imposes upon any person a specific duty for the benefit or protection of others, a violation of the statute will constitute negligence per se.
Exam Tip 4: If there is a statute provided in the facts, you should always discuss Negligence Per Se.
a. Statute
1) Class of person:
In order for the statute to apply, the plaintiff must be in the class of people meant to be protected by the statute.
2) Type of Harm:
The plaintiff must also suffer the type of harm the statute intended to protect against.
3) Proximate Cause:
If the statute applies, the defendant will be liable to the plaintiff if his violation of the statute proximately caused harm to the plaintiff.
Negligence - Causation
a. Cause in fact/actual cause
To prove actual causation, plaintiff must show that but for defendant’s act, plaintiff’s injury would not have occurred. If there are multiple causes, defendant will be a cause in fact if he was a substantial cause of plaintiff’s injury.
b. Proximate cause
The plaintiff must show that her injuries were the foreseeable result of defendant’s conduct.
c. Intervening cause
An intervening cause is an outside force/action that contributes to the plaintiff’s harm after the defendant’s act/omission has occurred. If the intervening cause is unforeseeable, it is a superseding cause and defendant’s liability will be cut off.
Exam Tip 6: There can be more than one intervening cause in an exam question. Address each intervening cause separately and analyze whether they are foreseeable or unforeseeable.
Negligence Defenses
Exam Tip 7: Only discuss the defenses that apply, and if none apply, simply state this in your answer.
a. Contributory negligence
In a contributory negligence jurisdiction, plaintiff’s negligence is a complete bar to recovery.
In a pure comparative negligence jurisdiction, plaintiff’s negligence is not a complete bar to recovery, but her damages are reduced by proportion that plaintiff’s fault bears to the total harm.
b. Assumption of the risk
Plaintiff’s recovery may be barred if she voluntarily and knowingly assumed the risk of her behavior.
Abnormally Dangerous Activity
An abnormally dangerous activity is one (1) with a high risk of harm, (2) that is not commonly found in the community, and (3) that has a risk that cannot be eliminated with due care.
Exam Tip 9: Be sure to address all three of the elements of abnormally dangerous activity in your analysis. Consider writing a separate paragraph for each element. Examples of abnormally dangerous activity include using explosives, fumigating, disposing of hazardous waste, and storage of chemicals.
a. Causation
To be liable, the abnormally dangers activity must be both the actual and proximate cause of plaintiff’s injury.
b. Damages
To recover damages, plaintiff must prove actual injury and not just economic loss.
c. Defenses
1) Assumption of the Risk
Plaintiff’s recovery may be barred if she voluntarily and knowingly assumed the risk of her behavior. Assumption of the risk is not the only defense, but it is the best defense.
Wild Animals
Strict liability also applies to owners of wild animals or domestic animals if the owner knows of the dangerous propensities of the domestic animal.
Exam Tip 10: If a wild animal or domestic animal with dangerous propensities is involved, the analysis of causation, damages, and defenses is the same as abnormally dangerous activity.
Products - Strict Products Liability
A defendant who is in the business of selling a commercial product may be strictly liable for a defective product causing foreseeable injuries to a plaintiff. To establish a prima facie case for strict products liability, the plaintiff must prove that defendant had an absolute duty as a commercial seller of the product, that defendant produced or sold a defective product, actual and proximate causation, and damages.
a. Causation
1) Actual causation
To be the actual cause of plaintiff’s injury, the product must have been defective when it left defendant’s control.
2) Proximate causation
To be the proximate cause of plaintiff’s injury, the defect causing plaintiff’s injuries must have occurred when the product was being used in an intended or reasonably foreseeable way. A defendant will still be liable if the plaintiff misuses the product and is injured if that misuse is foreseeable.
3) Damages
Plaintiff must also suffer personal injury or property damage.
b. Defenses
1) Contributory negligence
* In a contributory negligence jurisdiction, plaintiff’s negligence is a complete bar to recovery when the plaintiff’s fault consisted of unreasonably proceeding in the face of a known product defect.
* In a pure comparative negligence jurisdiction, plaintiff’s negligence is not a complete bar to recovery, but her damages are reduced by proportion that plaintiff’s fault bears to the total harm.
2) Assumption of the risk
Plaintiff’s recovery may be barred if she voluntarily and knowingly assumed the risk of her behavior.
Absolute Duty
A defendant who is in the business of selling a commercial product—including manufacturers, distributors, and retail sellers—is under an absolute duty to provide a safe product.
Exam Tip 12: Discuss here whether defendant qualifies as in the business of selling a commercial product (as opposed to a casual or occasional seller of this particular product).