Tort Flashcards

Question

Conversion

Answer 1

Conversion is the interference with plaintiff’s right of possession in personal property that is serious enough in result to warrant that defendant pays the full value of the personal property.

Answer 2

IIED requires: (1) the defendant's intentional or reckless (2) commission of acts constitute extreme and outrageous conduct and (3) causes severe emotional distress. | google+ST

Answer 3

1. Privilege 2. Defense of Others 3. Defense of Property 4. Consent 5. Authority 6. Necessity 7. Self-Defense POPCANS

Answer 4

D is entitled to defend another from an attack by P to the same extent that a third person would be lawfully entitled to defend himself, but D is liable for a mistake.

Answer 5

D can use reasonable force to defend real or personal property, including ejecting the person off the property after asking them to leave. D may **never** use deadly force to protect personal or real property.

Answer 6

Defendant may use reasonable, non-deadly force to get back one's own personal property if: a) defendant, seeking to recapture, first requests its return or a request would be futile; and b) D is in hot pursuit.

Answer 7

P affirmatively communicates permission for D to act. But, D’s actions cannot exceed the scope of consent. ## Footnote Usually a defense for battery and assault.

Answer 8

A reasonable person interprets P’s conduct as evidencing permission to act.

Answer 9

Mistake can negate consent when it goes to the consequences or nature of the act. *---* a) E.g.,[undisclosed STD] - Dale and Penny are about to have sex when Penny asks if Dale has any sexually transmitted diseases. Dale knows that he has herpes, but he lies and denies it and then sleeps with Penny without using any protection. Penny gets herpes and sues Dale. Penny will not be deemed to have consented because of Dale’s deception. b) E.g., [counterfeit bill is not the essence of the deal] - Vivian is a sex worker who engages in sexual relations with Mark. Mark pays Vivian with a counterfeit bill. In this case, there is still consent because the counterfeit bill is a collateral matter.

Answer 10

1. Arrest [Crime prevention], see false imprisonment 2. Shopkeeper Privilege, see false imprisonment 3. Discipline - Parent/teacher may use reasonable force to discipline a child.

Answer 11

D is permitted to injure P’s property if it is reasonably necessary to avoid a substantially greater harm to the public, self, or D’s property. *---* two types: 1. Public Necessity 2. Private Necessity

Answer 12

D commits intentional tort to protect the public at-large from severe harm. Public necessity serves as an absolute defense, and a defendant is not liable for any damages caused by his trespass.

Answer 13

D commits an intentional tort to protect himself. If a reasonable person would believe the action taken was necessary to avoid the harm, D is privileged even if D made an honest mistake in that regard. D is not liable for the technical tort but will have to pay for harm D caused. *---* Principle: better to commit tort than risk the consequence D is not liable for the technical tort but will have to pay for harm D caused.

Answer 14

D honestly and reasonably believes that D used reasonable force to prevent P from engaging in an imminent and unprivileged attack. There must be an imminent existing threat. Once the threat is over, the defense will not apply. *---* Deadly force cannot be used against non-deadly threat.

Answer 15

a) Some jurisdictions require retreat before using deadly force. b) One never has to retreat from their own home.

Answer 16

Abuse of process involves: (1) using a legitimate process (such as filing a complaint, service, discovery, etc.), (2) for a wrongful purpose, and (3) an act or threat against the plaintiff to accomplish the wrongful purpose. This prohibits the use of any form of process to bring about a result other than that which the process was intended.

Answer 17

Malicious prosecution requires: (1) the initiation of civil, administrative or criminal proceedings without probable cause, (2) for a wrongful purpose, and (3) favorable termination of the proceedings on the merits (including a dismissal with prejudice).

Answer 18

The five elements of negligence are duty, breach, actual cause, proximate cause, and harm.

Answer 19

1. Ordinary duty 2. Specialized duties --Duties of landowner/possessor --Duty to rescuer --Duty in emergency --Professionals (doctors, lawyers, accountants, etc.) 3. Statutory duty (negligence pe se) 4. Children

Answer 20

Minor defendant’s conduct is assessed according to what a reasonable child of the same age, experience, education, and intelligence as Defendant would have done. But, children engaging in adult, inherently dangerous activities are held to an adult standard of care

Answer 21

There is a duty to act reasonably towards foreseeable persons under the circumstances and defendant's conduct is assessed according to a reasonable prudent person. Tip on Creating the Rule for Ordinary Duty. - Don’t be general but instead state the circumstances and indicate to whom the duty is owed by Incorporating the standard of care and to whom the duty is owed, without having a separate section on standard of care. e.g., “Defendant had a duty to drive the vehicle reasonably in order to avoid injuring other drivers, pedestrians, or property.” A person has a duty to act reasonably in interacting with their customers. A proprietor of an establishment has an ordinary duty to keep their premises safe for customers.

Answer 22

Plaintiff within Zone of danger --> foreseeable plaintiff If plaintiff is not a foreseeable plaintiff (not in the zone of danger of negligent act), discuss Cardozo/Andrew split under duty: 1. Cardozo – plaintiff must be in the zone of danger 2. Andrew – [my rule]The plaintiff who was harm was a foreseeable plaintiff, unless the harm was too attenuated from the cause to be foreseeable. --- [MM] focus on the foreseeability of harm/whether harm is too attenuated from cause e.g., Under Cardozo’s analysis, Patron was obviously not in the geographical zone of danger since she was nowhere near Homeowner’s home at the time of the burglary, and thus was not a foreseeable plaintiff in that sense. Under Andrews’ analysis, foreseeability is an issue of whether either policy or other considerations make the chain of causation too attenuated to be foreseeable. ## Footnote If the harm is from defendant’s conduct unusual or unexpected --> discuss that as an issue of proximate cause.

Answer 23

Generally, there is no duty to foresee a criminal act unless the breach of duty itself foreseeably increases the risk of the criminal act occurring. (If so, then the duty exists and is adequately foreseeable.) e.g., leaving unsecure gun in the house at the bedside not uncommon --> break-in and leading theft not foreseeable --> not foreseeable plaintiff

Answer 24

Generally, a landowner owes no duty to protect someone outside the premises from either natural or artificial conditions on the land.

Answer 25

There is a duty to maintain trees, so they do not cause harm to persons off the premises.

Answer 26

There are two major exceptions: 1. a duty to protect from unreasonable dangerous artificial conditions and 2. a duty to take precautions to protect people passing by from dangerous conditions.

Answer 27

The liability of landowners and possessors, directly or through their employees, depends on the classification of the person coming onto the land: as invitees, licensees, or trespassers.

Answer 28

Duty depends on classification of person coming onto land 1. Invitees 2. Licensees 3. Trespassers

Answer 29

Definition: An invitee is someone on the premises for the business purposes of the land owner or possessor. Rule: Owner and Possessor holds a duty to an invitee to inspect, discover, repair and protect against **known or discoverable dangers** only if owner and possessor: 1. **Knows or by the exercise of reasonable care, should have discovered,** the **condition** and should realize that it **poses an unreasonable risk of harm to invitees**; and 2. Should expect that the **invitee will not discover or realize the danger** or **will fail to protect themselves against it**. | DRIP - discovery, repair, inspect, protect ## Footnote could be customers - ---e.g., movie goers and customers to a gas station Note: even if plaintiff could have done it, doesn’t excuse the defendant from its duty

Answer 30

Definition: A licensee is someone on the premises for their own purpose, e.g, social guest, of the land owner or possessor. Rule: The owner and possessor holds a duty to a licensee to repair and protect against known dangers only if owners and possessor: 1. Knows or has reason to know of the condition and should realize that it involved an unreasonable risk of harm to the licensees and should expect the licensees will not discover or realize the danger; 2. The licensees do not know or have reason to know of the condition or the risk involved; and, 3. Fails to exercise reasonable care to make the condition safe or to warn the licensee of the condition and the risk involved. ## Footnote Note: even if plaintiff could have done it, doesn’t excuse the defendant from its duty

Answer 31

Definition: A trespasser is someone on premises without owner’s or possessor’s consent Rule: The duty to known trespassers is to adequately warn of non-obvious artificial dangerous conditions maintained by defendant. Rule: The duty toward unknown trespassers is not to use wanton and willful force. *---* If the possessor knows that a limited part of the land is constantly traversed by trespassers, the possessor will be liable to those trespassers for bodily harm if the artificial condition is one the possessor created or maintains, it is likely to cause death or serious bodily harm, is not likely to be discovered by the trespassers, and the possessors have failed to exercise reasonable care to warn trespassers of the condition and the risk involved.

Answer 32

To assess a duty to prevent harm under the attractive nuisance doctrine, plaintiff must show: (1) the owner is or should be aware that there is a dangerous condition present on the land; (2) the owner knows that young persons frequent the vicinity of the dangerous condition; (3) the condition is likely to cause injury because of the child’s inability to appreciate the risk; and (4) the conditions's utilities and expense of remedying the situation is slight compared with the magnitude of the risk.

Answer 33

The rule bars firefighters/police officers, on public policy or assumption of risk grounds, from recovering for injuries caused by special risks of doing their job or a rescue

Answer 34

Common carriers, such as airlines and similar modes of travel, have a heightened duty to use the highest degree of care to aid and assist their passengers. It is not strict liability.

Answer 35

A rescuee is liable to a rescuer who is injured in the course of the rescue if the rescuee’s own negligence put them in the position of requiring a rescue. Subrule: In addition, third parties who foreseeably place rescuers in danger are similarly liable.

Answer 36

No duty to rescue or aid except: 1. person opts to undertake a rescue, even if he/she doesn’t have a duty to do so, he/she must act reasonably. P may be further protected by Good Samaratian Laws unless reckless or intentional wrongdoing. 2. Special relationship of dependence or mutual dependence (carrier/passenger, inn keeper/guest, captain/passengers, drinking buddies). 3. [negligent entrustment] When D gives something dangerous to someone D knows or should know is not competent to handle it (i.e. Father gives gun to a small child who shoots P).

Answer 37

There is no duty to control the third party's conduct to prevent harm to another unless there is a special relationship between D and the third party, which gives the third party a right of protection or imposes a duty on D to control the third party’s conduct.

Answer 38

1. Traditional Rule: Purveyor [providing alcohol] not responsible for DUI injuries. 2. Dram Shop Acts: Impose liability on establishments when they know, or should know, a patron is drunk and that person drives while intoxicated and harms a third party. *---* These acts typically do not apply to social hosts, but only to those who are licensed to sell alcohol.

Answer 39

Generally, there is no duty to protect another person from third-party criminal conduct (nonfeasance) unless: a) Special relationship: landlord/tenant, business/invitee. b) Some jurisdictions only find duty where there is a special relationship and prior similar incidents, that make the third-party criminal conduct particularly foreseeable.

Answer 40

D is Governmental Entity: Whether the govt has a duty depends on function. 1. Proprietary Function (acting in a private area): Treated as any other D for duty analysis. 2. Discretionary Activity (using judgment and allocating resources i.e. setting policy): Courts will not find a duty. 3. Ministerial Function: (route responsibilities – stamp the paper) a) Duty once the government has undertaken to act b) Ex: stop sign installed incorrectly leading to accident. 4. Public Duty Doctrine: Courts find no duty when professional rescuers (police officers/firefighters) fail to provide an adequate response, except when: a) there is a special relationship between P and the agency; or b) the agency has increased the danger beyond what would otherwise exist.

Answer 41

Custom or usage in an industry or trade may be introduced as evidence of a duty or lack of duty.

Answer 42

1. Medical malpractice: Physicians are required to possess and use the knowledge, skill, and training of other physicians in good standing in the relevant geographic community. a) specialists - national standard b) general practioner - local standards 2. Lawyers, Architects, Accountants: So long as the professional complies with custom, the professional cannot be found to have breached their duty - deviation from custom means breach of that duty. Exceptions: court may reject customs that are outdated and/or unreasonable.

Answer 43

1. Traditional (battery): Physician is liable for battery if no informed consent about risks. Lack of disclosure negates a patient’s case. Doctor is liable if there is a gross deviation from actual consent. (ex: P agrees to tonsillectomy, but leg is amputated instead). 2. Traditional (negligence): (professional rule) - Physician must divulge risks that are **customarily divulged by a physician** in the similiar circumstances 3. New Trend – Standard of Materiality: (patient rule) - Physician must divulge all material risks, which means risks that a **reasonable patient** would want to know in deciding whether to undergo the procedure or treatment.

Answer 44

Generally, there is no duty to prevent emotional distress in the absence of physical harm and plaintiff must usually be within the zone of danger from the negligence and suffer physical symptoms from the emotional distress. Three exceptions to bypass zone of danger and physical harm requirements are: 1. Plaintiff and victim were closely related, the Plaintiff was present (at the scene), and Plaintiff perceived the injury; 2. Duty arises from special relationship between the plaintiff and defendant, so that the negligence has great potential to cause emotional distress; or 3. Defendant mishandle relative's corpse or Erroneously states that relative has died. ## Footnote e.g., special relations - doctor-patient

Answer 45

Three Exceptions where the zone of danger and physical harm requirement is not needed: 1. Plaintiff and victim closely related, the Plaintiff present (at the scene), and Plaintiff perceived the injury; 2. Duty arises from special relationship between the plaintiff and defendant, so that the negligence has great potential to cause emotional distress; and 3. Defendant mishandle relative's corpse or Erroneously states that relative has died.

Answer 46

A breach of duty means a failure to exercise reasonable care.

Answer 47

Where the defendant’s behavior falls short of that level required by the applicable standard of care -- Not enough to say “Defendant Breached her duty” --Learned Hand factors 1. What is the **probability of harm** occurring from D’s conduct? 2. What is the **likely magnitude of the harm** going to be? 3. What is the **burden** on D to **avoid the harm**? *---* Standard won't take any characteristics to account except: a) **Physical conditions** (blind, deaf, amputee). In this case, D will be held to the standard of a RPP with that condition. b) **Emergencies** not of D’s own making considered by jury (e.g., rushing to hospital because child is dying). Jury can consider emergency to determine if D acted reasonably under the circumstances. c) **Children standard** of same age, experience, education and intelligence unless children engaged in adult, inherently dangerous activities. d) **Statutory Negligence**: Statutes that provide civil liability supersede common law of torts

Answer 48

After discussing ordinary duty, then discuss the breach of any specialized duties, such as the duty of a landowner/possessor, duty based on custom, and breach of statutory duty-negligence per se. ## Footnote may combined breach of ordinary duty and specialized duty: look at outline

Answer 49

Fact finder can infer negligence (a breach of duty) only if: (1) defendant had control of the instrumentality of the harm; (2) the harm would not have occurred in the absence of negligence; and (3) plaintiff did not contribute to the injury.

Answer 50

RIL can be used in medical malpractices cases. If plaintiff established RIL and a medical team is acting as a unit, the multiple defendants will be held jointly and severally liable unless the individual defendants prove that they did not cause the injury. *---* 1. Common Knowledge Exception: When equipment is sewn into a P or a sponge is left inside a P after surgery, you do not need experts to establish that this is negligent conduct. 2. Usually cannot use in multiple D cases, except where a medical team is acting as a unit. In such as case, Ds will be held jointly and severally liable unless the individual Ds prove that they did not cause the injury.

Answer 51

Rule: For a defendant’s violation of a statute to have any legal effect: (1) the statute or ordinance must be a criminal statute (including traffic, regulatory or safety statute) ; (2) the plaintiff must be a member of the class of persons intended to be protected by the statute; and (3) the claimed harm must be the type of harm intended to be protected against by the statute. A finding of negligence per se results in the conclusive presumption of breach and duty in the majority of states. ## Footnote NPS is NOT a separate cause of action. It is only an alternative type of standard of care – a statutory standard of care. So, even if you find NPS, discuss all five elements of negligence as though NPS is not established.

Answer 52

A finding of negligence per se results in the conclusive presumption of breach and duty in the majority of states. *---* The violation of a statute that establishes a statutory duty of care gives rise to negligence per se, i.e., conclusive presumption of duty and breach of duty.

Answer 53

Actual Casuse is usually “But for” Test. Only use Substantial factor test when there are joint/concurrent causes and either cause alone is sufficient to have caused the harm. Format for But for: “But for D’s breach, P would not have been injured.” Format for Substantial factor test: “Even if the negligence of one did not occur, the harm would still have occurred”

Answer 54

1. Not a majority rule 2. P must show that but for the medical malpractice, P would not have lost chance/died. 3. Many jurisdictions now recharacterize injury in these cases as the loss of a chance and reduce damages, but do not extinguish them.

Answer 55

Alternative liability theory applies when plaintiff sued all the defendants, which is just a few, who are tortious or negligent. If plaintiff successful, the burden shifts to defendants to show they were not the cause. If defendants cannot do so, they will be jointly and severally liable. *---* Alternative liability theory applies when: a) All Ds are tortious/negligent; b) All Ds are being sued together (can’t use if one D is left out); and c) Small number of Ds. If so, Burden shifts to Ds to show that they were not the cause. If Ds cannot do so, they will be jointly/severally liable. *---* Summers v. Tice – two hunters shoot at quail and P, who is clearly in the line of fire, gets hit. However, it is not clear which hunter actually fired the shot that hurt P!)

Answer 56

1. **Generic product** - P cannot show which of a large group of negligent Ds were responsible for manufacturing the product that caused her harm. P can sue those who might have caused her harm and each D is responsible based on its market share. 2. **Several liability**– X had 10% of the relative market; X will pay 10% of P’s damages unless X can show it could not have made the product that harmed P.

Answer 57

Proximate cause is use to determine whether the type of harm plaintiff suffered from was foreseeable from the Defendant’s type of conduct.

Answer 58

If the defendant’s negligence created a foreseeable risk that a third party would commit a crime or intentional tort, the defendant’s liability would not be cut off by the third party’s crime or tort.

Answer 59

Defendant is liable for all Plaintiff’s injuries foreseeably caused by D’s tort or negligence. [D has to take the victims as D find them.] It does not matter if P is susceptible to greater harm because of P's peculiar characteristics, like an eggshell skull.

Answer 60

1. Just before the harm occurs, imagine you have stopped the action. 2. Who would you reasonably and normally expect to be injured, and how would you expect them to be injured? 3. If the actual person injured is different, then discuss this under duty to a foreseeable plaintiff, as discussed above. 4. **If the manner of injury is different, you may have a proximate cause issue.** These tend to be pretty obvious: a string of unlikely circumstances occurs, and the harm that is at the center of the problem is a long way down the road.

Answer 61

A superseding cause is an unforeseeable and intervening cause that breaks the chain of causation between the initial wrongful act and the ultimate injury. A superseding cause relieves the original tortfeasor of liability for lack of proximate cause. *---* (1) Unforeseeable criminal acts (2) Unforeseeable torts of third parties, (3) highly extraordinary harm arising from D’s conduct, including gross negligence by third parties, and (4) acts of nature.

Answer 62

The element is the nature of the harm

Answer 63

1. Contributory Negligence – complete bar 2. Comparative Fault 3. Assumption of the Risk 4. Emergency

Answer 64

Defendant will claim that Plaintiff was contributorily or comparatively negligent. But this requires Plaintiff to have a duty to act, and to have failed to act with reasonable care.

Answer 65

Contributory negligence of the plaintiff is a defense and a complete bar to recovery.

Answer 66

A plaintiff may invoke the last clear chance doctrine - defendant has last opportunity to prevent harm - to avoid a finding of contributory negligence.

Answer 67

Although plaintiff caused the dangerous condition because of his own negligence, plaintiff could recover if the defendant could have prevented the harm by using reasonable care. | bad definition - had to take it from law firm website

Answer 68

Two types 1. Pure comparative fault reduces the recovery by the percentage attributable to plaintiff’s fault. (damages reduced by % of negligence) 2. Non-pure comparative fault bars recovery if plaintiff is at least (exceeds?) 50% at fault.

Answer 69

Plaintiff is denied recovery if he or she knows of the risk and voluntarily assumes it. The particular risk must be apprehended and understood, not a generalized risk of harm. Moreover, there are certain risks that are not assumed: the risk of traveling on a common carrier; where a statute protects class, and in cases of fraud, force, or emergency. ## Footnote --Merely venturing into traffic or driving a car is not an assumption of the risk – the particular risk must be apprehended and understood, not a generalized risk of harm. --Certain risks are not assumed: the risk of traveling on a common carrier; where a statute protects class, fraud, force, or emergency.

Answer 70

[this is an issue of the standard of care, and thus duty, but a number of states characterize it as a defense]. So long as defendant did not create the emergency, the duty is to act as a reasonable person would under the same emergency. *---* The duty is to act as a reasonable person would be under the same emergency unless the defendant created the emergency. ## Footnote Analytically, this is an issue of the standard of care, and thus duty, but a number of states characterize it as a defense. Discuss this when the facts state something like, “Defendant suddenly swerved to avoid …” So long as defendant did not create the emergency, the duty is to act as a reasonable person would under the same emergency

Answer 71

Trespass is the entry onto or remaining upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise. Mistake is not a defense. Where trespasser has the privilege of necessity and causes harm, (1) defendant is still liable for actual damages but not punitive damages; and (2) landowner may not eject trespasser or their property by use of excessive force.

Answer 72

Two types of nuisance: 1. Public nuisance 2. Private nuisance

Answer 73

Public nuisance interferes in a common public interest. Private party bringing this action must suffer harm that is different in kind from that suffered by members of the public in general.

Answer 74

1. public health; 2. public safety; 3. public convenience; 4. public comfort or public peace; or 5. it involves the violation of a statute, ordinance or regulation (often involving common public safety or health – such as anti-pollution statutes).

Answer 75

Private nuisance requires: (1) an unreasonable invasion of another’s interest in the use or enjoyment of his or her land; (2) and the invasion is either (a) intentional; or (b) unintentional and otherwise actionable as negligence, recklessness, or an abnormally dangerous condition or activity. The invasion to another’s use and enjoyment in the land must be unreasonable to a reasonable person. | Unreasonable invasion is an objective test ## Footnote If the invasion is intentional and unreasonable, the court will not balance the harms in considering an injunction. Otherwise, it will do so.

Answer 76

Strict liability describes liability without fault for harm proximately caused by certain categories of conduct.

Answer 77

1. Animals 2. Abnormally dangerous activities 3. Product liability -- Manufacturing defects -- Design defects -- Failure to warn defects Defenses to SL -- Comparative negligence and assumption of the risk is defenses -- Contributory negligence is not a defense to SL

Answer 78

Owners and possessors of livestock and wild animals are strictly liable for the harm caused by the animals, including both property damages and personal injury. Thus, a plaintiff [in a strict liabiltiy case] must show that: (1) Defendant owned (2) a wild animal (3) that caused harm to plaintiff of a kind typically caused by the wilderness of the animal. *---* Note the act affect P determine type of standard: a) Tiger eat person --> SL b) Tiger walks on street and car swerve to avoid the tiger --> negligence | Note: public zookeepers are only liable for negligence.

Answer 79

[The traditional rule is that] an owner of a domestic animal is liable for the harm done by the animal only if the owner knows, or has reason to know, of the animal’s vicious tendencies.

Answer 80

The elements of strict liability for abnormally dangerous activities are: (1) the carrying on of an abnormally dangerous activity, (2) that actually and proximately causes harm, (3) the risk of which makes the activity abnormally dangerous.

Answer 81

The definition of an abnormally dangerous activity are: 1. The high degree of risk of harm, 2. The gravity of the harm; 3. The inability to eliminate the risk using reasonable care; and, 4. The activity is not of common usage in the community

Answer 82

There are three distinct significant legal theories of liability: strict products liability, negligence, and breach of warranty. *---* The liability of commercial suppliers may apply to everyone in the vertical chain of distribution of the product – designer, manufacturer, distributor, retailer.

Answer 83

The elements of SPL are: (1) Defendant is in the business of selling or distributing products; (2) defendant sells or distributes a defective product (places it in the “stream of commerce”) [that remains unchanged when it gets to the consumer]; (3) defect must exist at the time of the sale or distribution—remains unchanged by the time it reaches to the end use [its condition has not changed by the time it reaches its end use]; (4) the defect [actually and proximately] causes harm to a foreseeable person. ## Footnote element 2 is where we talk about types of defects

Answer 84

1. Defendant is commercial supplier 2. Defendant sold Defective Product a. manufacturing defect b. design defect i) risk/utility theory ii) reasonable alternative design iii) CA consumer expection 3. Warning Defect 4. Product remains unchanged 5. actual cause 6. proximate cause 7. harm Defenses - not contributory nelgience - comparative neligence and assumption for risk are

Answer 85

Definition of the business of selling or distributing products includes all commercial entities in the vertical chain of distribution - manufacturers, wholesalers, retailers, distributors– but does not apply to causal seller.

Answer 86

Three categories of product defects, any of which must exist at the time of sale or distribution, are manufacturing defect, design defect, and inadequate instructions or warnings.

Answer 87

A manufacturing defect is one where the product departs from its intended design. The product contains a flaw not part of the design. | Error on the assembly line

Answer 88

There are three types of design defects: 1. risk-utility test 2. reasonable and feasible alternative design, and 3. consumer expectation test *---* Either a defect that creates an **“inherently unreasonable risk**,” or a defect where “**the foreseeable risks of harm** could have been **reduced** or **avoided** by the adoption of a reasonable alternative design and the omission of the alternative design renders the product not reasonably safe.” Three types of design defect 1. Risk/utility - or 2. Reasonable and feasible alternative design 3. Consumer expectation aka reasonable expectation test (CA only) ## Footnote common to the entire product line, causing the products to be generically dangerous

Answer 89

Plaintiff shows that the product’s design defect is inherently unreasonable risk because the risk of harm is **significant** and there is little to no utility. ## Footnote OG: Generally, a plaintiff must prove that there is an inherently unreasonable risk because the risk of harm is significant and there is little or no utility to the product.

Answer 90

A plaintiff shows that there is a reasonable and feasible alternative design that would have been economically and technologically feasible and safer.

Answer 91

The product’s compliance with applicable government safety standards (including labeling requirements) is evidence that the product is not defective, but it is not dispositive.

Answer 92

Plaintiff shows that the product dangerously fails to perform in contrast to what a consumer would expect it to; such failure is a design defect. ## Footnote Case law – When a motorist applied the brake, the car accelerated instead of stopping.

Answer 93

A manufacturer is liable for failure to warn if defendant (1) knows or has reason to know that the product is likely to be dangerous for the use for which it is supplied; (2) has no reason to believe that the users of the product will realize its dangerous condition; and (3) fails to inform the users of the product’s dangerous condition or of the facts which make the product likely to be dangerous.

Answer 94

The duty to warn regarding prescription drugs and medical devices is satisfied if the manufacturer gives adequate warnings to the patient’s physician.

Answer 95

To prove actual cause, the plaintiff must trace the harm suffered to a product’s defect that existed at the time the product left the defendant’s control. Any substantial alteration in the product’s condition after it left the defendant’s control may negate actual cause.

Answer 96

If there is a warning defect, plaintiff can rely on a presumption that an adequate warning would have been read and heeded.

Answer 97

To prove proximate cause, the plaintiff must show that the type of injury she suffered was foreseeable at the time the product was placed into the stream of commerce. An injury from a foreseeable misuse of the product may be foreseeable.

Answer 98

1. Comparative negligence and assumption of the risk are defenses to strict products liability. 2. Contributory negligence and reasonably foreseeably misuse of product are NOT defenses to strict product liability

Answer 99

The elements of products liability negligence are duty, breach, actual cause, proximate cause, and harm.

Answer 100

**Duty** 1. Duty is owed to the immediate purchaser and to all other persons whom the manufacturer foreseeably knows will use the product without further inspection or tests 2. Duty is owed when defendant knows that, in the event of negligence, product is reasonably probable to cause injury. 3. But retailers are only liable for negligence if they actually become aware of a defect and still sell the product – generally there is no duty of a retailer to inspect each product they sell. No privity is required between plaintiff and defendant.

Answer 101

1. Duty - to make products or maintain products carefully -- Duty is owed when defendant knows that, in the event of negligence, product is reasonably probable to cause injury -- Duty owed to purchaser AND to others than immediate purchaser if: (a) Reasonably certain to imperil user (b) Likely/foresseeable to be used by others without inspection/tests (c) But retailers are only liable for negligence if they actually become aware of a defect and still sell the product – generally there is no duty of a retailer to inspect each product they sell. 2. Breach - failure to meet standard of care 3. Actual cause - but for the breach, plaintiff would not have been injured 4. Proximate cause -- Plaintiff/harm are foreseeable; -- Andrews: Harm is foreseeable and no independent intervening cause; not remote 5. Harm - generally personal injury or property damage). Defenses 1. Contributory negligence 2. Comparative negligence 3. Assumption of the Risk

Answer 102

The manufacturer of a product owes a duty to all foreseeable users or bystanders, whether they are immediate purchasers or not, to make the product carefully. The requirement of privity has been eliminated. The products were negligently made if it is reasonably certain to place users in peril. Reasonably certain means that the danger is probable. The manufacturer knows or should know that the persons other than immediate purchaser would use the product without further tests or inspection. Retailers do not have a duty to inspect each product they sell. But the retailer is only liable for negligence if they actually become aware of the defect and still sell the product.

Answer 103

Three types of Breach of Warranty 1. Express warranty (§2-313) 2. Implied warranties of merchantability (§2-314) 3. Implied warranties of fitness for a particular purpose (§2-315) ## Footnote Negligence v. warranty: even if the defendant did everything right, if the goods that the defendant sells are not as warranted, defendant is in breach and owes plaintiff damages

Answer 104

my rule: The elements of an express warranty are: the making of an express warranty; Plaintiff's reliance on the warranty, and breach of warranty that results in harm to a foreseeable person. *---* The elements of an express warranty are the **making of an express warranty**, which is one that is an **affirmation of fact** concerning the goods, **reliance by the consumer** on the warranty, and a breach of the warranty that **causes harm to a foreseeable person. ** Elements: 1. Defendant makes promises/affirmations of fact that describe the product and are part of the basis of the bargain 2. Plaintiff relies on promises/affirmations of fact in purchasing the product 3. Promises/affirmations of fact are not fulfilled 4. Plaintiff is harmed as a result of the failure of the promises/affirmations of fact

Answer 105

my rule: The elements of the implied warranties of merchantability are: 1. the implied warranty exists; 2. the purchaser relies on the warranty; and, 3. the breach of the warranty proximately caused the loss sustained. Merchantability means the products are sold by merchant in the goods of the kind. The products must be of fair average quality and fit for the ordinary purpose for which such products are used; they are adequately packaged or labeled and they conformed to the promise made on the container or label, if any. *---* The elements of the implied warranties of merchantability are the existence of the warranty and reliance on it by the purchaser, the breach, and that the breach of the warranty proximately caused the loss sustained. Elements: 1. The product is sold by a merchant in goods of the kind (Existence of warranty). 2. Implied warranty that the products are of fair average quality and fit for the ordinary purposes for which such products are used, are adequately packaged or labeled, and conform to the promises or affirmations made on the container or label, if any (Scope of warranty) 3. Breach—products are NOT of such quality and fitness 4. Breach of implied warranty caused the loss (generally personal injury or property damage). 5. No privity is required between plaintiff and defendant.

Answer 106

Merchantability means that the goods are sold by a merchant in goods of the kind, that goods must be of fair **average quality** and **fit for the ordinary purposes f**or which such goods are used, are **adequately packaged** or labeled and **conform to** the **promises or affirmations** made on the container or **label**, if any.

Answer 107

my rule: The elements of the breach of the implied warranty of fitness for a particular purpose are: 1. the implied warranty exists; and, 2. the defendant’s breach of warranty caused the loss sustained. There, the seller must know of the buyer’s particular or special needs at the time of the sale, and must recommend the product with that knowledge. *---* The elements of breach of the implied warranty of fitness for a particular purpose are the existence of the warranty, the breach, and that the breach of the warranty proximately caused the loss sustained. There, the **seller must know of the particular or special needs of the buyer** at the time of the time of the sale, and must **recommend the product with that knowledge. ** Elements 1. Seller does or should know of the particular or special needs of the buyer at the time of the sale, and must recommend the product with that knowledge (existence of the warranty). 2. Breach—products are not fit for such particular purpose 3. Breach causes the loss (generally personal injury or property damage).

Answer 108

1. Intrusion 2. Public disclosure of private facts 3. False light 4. Appropriation of commercial identity

Answer 109

Intrusion upon affairs or seclusion requires: 1. defendant was prying or intruding on the plaintiff’s affairs or seclusion; 2. the thing that the defendant had intruded or pried upon is private; and, 3. the intrusion would be highly offensive to a reasonable person. *--* To make a prima facie case for instrusion upon affairs or seclusion, plaintiff must prove that: a) There was an act of prying or intruding by the defendant on the plaintiff’s affairs or seclusion; b) That the intrusion would be highly offensive to a reasonable person; and, c) That the thing to which there was an invasion or prying is private.

Answer 110

PDPF requires: (1) public disclosure (2) of a private fact (3) that would be offensive and objectionable to the reasonable person and (4) that is not of legitimate public concern. Constitutional limit on PDPF (strict liability): if the press publishes **truthful information that it has lawfully obtained**, **civil or criminal punishment** may lawfully be **imposed**, if at all, only when **narrowly tailored to achieve a compelling state interest**. *---* Liability of PDPF exists when: a) The details are so personal that its disclosure would offend a reasonable person even if the information is true; b) The details are not generally known to the public; c) The details are not newsworthy; and d) The details are widely communicated.

Answer 111

A fact is private if the plaintiff has made reasonable attempts to keep the matter private.

Answer 112

A three-part test for newsworthiness considers: 1. the social value of the facts published; 2. the depth of the article’s intrusion into ostensibly private affairs; and 3. the extent to which the party voluntarily acceded to a position of public notoriety.

Answer 113

Appropriation protects the person’s pecuniary interest in in the commercial value of their identity. The elements are: (1) an appropriation or use (2) of the plaintiff’s identity (3) by the defendant (4) for the defendant’s commercial purposes. *--* Elements 1. An appropriation or use 2. Of the plaintiff’s identity 3. By the defendant 4. For the defendant’s commercial purpose ## Footnote Note: 1. appropriation is not like the other 3 privacy torts, which protect the person’s interest in emotional peace and mental calmness 2. This is not limited to celebrities

Answer 114

False light invasion of privacy requires: (1) Defendant **publicizes a private matter** concerning **plaintiff** (2) that **places** the **plaintiff before the public** in a **false light** (3) that would be **highly offensive to a reasonable person** (4) and, if it involves a matter of **public interest**, defendant **acted with malice** (knowledge or reckless disregard of the falsity of the matter and the false light). *--* Elements 1. Defendant publicizes a private matter concerning the plaintiff 2. That places the plaintiff before the public in false light 3. That would be highly offensive to a reasonable person 4. And, if matter of public concern, defendant acted with malice (knowledge or reckless disregard for the truth of the matter and the false light)

Answer 115

4 types of misrepresentation 1. Intentional misrepresentation 2. Deceit (concealment) 3. Negligent misrepresentation 4. Promise made without intent to perform

Answer 116

The elements of intentional misrepresentation are: (1) Defendant made a false representation concerning a presently existing material fact (2) that the Defendant either (a) knew was false or (b) made recklessly, knowing that he had insufficient knowledge on which to base the representation (3) for the purpose of inducing the other party to act on the representation; (4) that the other party, acting reasonably or justifiably and in ignorance of the falsity of the representation, actually relied on it (5) and was thereby induced to act to his injury and damage.

Answer 117

The elements of negligent misrepresentation are: (1) Defendant made a false representation concerning a presently existing material fact (2) that the Defendant makes false statements, honestly believing them to be true, but without reasonable ground for such belief (3) for the purpose of inducing the other party to act on the representation; (4) that the other party, acting reasonably or justifiably and in ignorance of the falsity of the representation, actually relied on it (5) and was thereby induced to act to his injury and damage.

Answer 118

Concealment means that (1) the Defendant omits a material fact, and the omission makes what the Defendant said misleading or untrue (2) that the defendant knew was misleading (3) for the purpose of inducing the other party to act on the representation (4) that the other party, acting reasonably or justifiably and in ignorance of the falsity of the representation, actually relied on it; and was thereby induced to act to his injury and damage.

Answer 119

Five separate elements to a claim for intentional interference with a contract: (1) interference (2) which is intentional and (3) **improper** or **unlawful** (4) in a contract between two other persons (5) causing one of them to not perform the contract. Interference requires some act, and not merely a refusal to do something. Interference must be unlawful and unprivileged. Thus, it is not a tort to interfere in, or induce breach of, an illegal contract. The interfered contract must be between two other persons. Thus, a party to a contract cannot be sued for intentionally interfering with his or her own contract.

Answer 120

Five separate elements to a claim for intentional interference with prospective economic relations, plaintiff must prove: (1) an economic relationship between plaintiff and third parties; (2) knowledge by the defendant of the existence of the relationship; (3) intentional, wrongful acts, independent of the interference itself, designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) damages proximately caused by the acts.

Answer 121

Tort damages must be (1) causal, (2) foreseeable, (3) reasonably certain, and (4) unavoidable (duty to mitigate damage). *---* * Economic loss is generally not recoverable in a negligence action unless there is also either physical injury or injury to property. * Punitive Damages are only recoverable if the Defendant’s conduct was malicious, willful or reckless.

Answer 122

Where there is joint and several liabiltiy, and comparative fault, contribution allows a tortfeasor who is required to pay more than their share of the damages to have a claim against the other jointly liable parties for the excess he paid. Where joint and several liability has been abolished, contribution is not necessary since a tortfeasor is only liable for his or her share of the harm.

Answer 123

Indemnity shifts the liability the entire loss (100%) from one defendant to another. Indemnity is available where: 1. It is provided by contract; 2. a party is only vicariously liable; 3. under strict products liability, supplier is liable to the injured plaintiff, but each supplier has a right of indemnification against all previous suppliers in the distribution chain; 4. there is a considerable difference in degree of fault

Answer 124

Defamation requires: (1) a defamatory statement; (2) of or concerning the plaintiff; (3) publication, which means communication of the statement to a third person; and (4) harm to reputation (unless defamation per se)

Answer 125

Libel on its face

Answer 126

A defamatory statement is one that holds the plaintiff up to ridicule or harm to reputation. Opinion is not defamatory unless the opinion is necessarily founded on asserted facts. Defamation is a strict liability tort. Two types of defamatory statements: 1. Slander – oral defamation 2. Libel – written or broadcast defamation (radio and TV) 5 categories of Slander: 1. Accusation of crime 2. Imputes presence of contagious or loathsome disease 3. Tends directly to injure in respect to office, profession, trade or business 4. Impotence or a want of chastity 5. Statement that causes actual damage ## Footnote There is no recovery for slander absent proof of special damages unless it is slander per se

Answer 127

Of and concerning the plaintiff means the hearer or reader reasonably understands that the statement is defamatory and refers to the plaintiff.”

Answer 128

LPQ requires proof of extrinsic facts (inducement) and the defamatory meaning in light of those facts (innuendo), or colloquium. Most libel is obviously libelous and thus libel per se.

Answer 129

There’s publication when defendant communicated the statement to a third party.

Answer 130

Each person who publishes the statement or republishes it, after hearing it from another, is liable for defamation. However, a person is not liable for a subsequent, voluntary and unauthorized republication unless the republication was the natural and probable consequence of the communication.

Answer 131

Definition: The harm required is harm to reputation Special damages requires proof unless it is defamation per se, where damages are presumed. -- Libel per se carries presumed damages so no special damages is required. -- Libel per quod requires proof of special damages before general damages will be awarded.

Answer 132

1. Truth – complete defense 2. Privilege – absolute or qualified 3. 1st amendment defenses

Answer 133

Truth is a complete defense to defamation. However, truth does not applied if P [is not public figure, but] is private person of private matter.

Answer 134

1. Absolute Privilege 2. Qualified Privilege

Answer 135

In absolute privilege, it does not matter if statement is false or is made with malice. Absolute privileges covers statements made in: (1) the proper discharge of an official duty; (2) legislative proceeding, (3) judicial proceeding, (4) in any other official proceeding authorized by law, or (5) in the initiation or course of any other proceeding authorized by law. Under constitutional law test, feature debate clause in the Constitution is defense to defamation [questionable clause]

Answer 136

Qualified privilege covers the statement that is made without malice, and to a person interested therein: (1) by one who is also interested, or (2) by one who stands in such a **relation to the person interested** as to **afford a reasonable ground** for **supposing the motive for the communication to be innocent**, or (3) who is **requested by the person interested** to **give** the **information**. The defendant has the burden to prove he is covered under the privilege; if successful, then the plaintiff bears the burden of proving that the privilege has been lost through abuse. *---* to Maniero, QP applies in: a) recommendation, b) rating interest, c) people having mutual interest in the topic

Answer 137

If 1st amendment defenses were raised, the elements are: 1. Defamatory statement, 2. Of and concerning the plaintiff, 3. Publication, 4. The requirement of harm (or its absence due to presumed damages), 5. **Falsity of the defamatory language**; and 6. **Fault** ## Footnote Rule: Plaintiff must also prove that statement was **false**, and defendant **acted with malice** (knowledge that it was false or reckless disregard for the truth)

Answer 138

1. What is the status of P (public official, public figure, private figure)? 2. What is the subject matter of the statement (public or private concern)? 3. What damages does P seek? 4. What is the status of D?

Answer 139

If plaintiff is public official or public figure, Plaintiff must also prove that **statement was false,** and defendant acted with **malice** (knowledge that it was false or reckless disregard for the truth). For plaintiff to recover **presumed damages**, such as when the defamation is slander per se or libel per se, or punitive damages, plaintiff must still prove **malice** Public Figure: A public figure includes one who voluntarily injects themself, or is drawn (is a “central figure in the controversy”) into the forefront of a public controversy to influence the resolution of issues, or, by reason of their pervasive fame or notoriety through achievements, shape events in areas of concern to society at large. *New York Times v. Sullivan* *---* Required to prove false statement and actual malice ## Footnote NYT v. Sullivan - the First Amendment requires that a public official may not recover damages of any kind for a defamatory falsehood relating to his official conduct unless he proves that the statement was false, and was made with actual malice: knowledge that it was false or reckless disregard of its falsity.

Answer 140

if plaintiff is private citizen and the defamatory statement involves a matter of public concern, Plaintiff must also prove that **statement was false,** and defendant acted with negligence" to recover actual damages. P still requires **malice** to recover **presumed and punitive damages**. *---* Public Concern: The defamatory statement involves a matter of public concern when the statement is false and that the defendant makes the false statement at least through negligence in order to obtain actual damages. *Gertz v. Welch * *---* P required to prove false statement by **negligence** for actual damages Required to prove actual malice for presumed and punitive damages

Answer 141

if plaintiff is private citizen and the defamatory statement involves a matter of purely private concern, only the first four elements of defamation are required, and malice is not required in any form. Instead, P prove damages, presumed dmages and punitive damages by strict liability.

Answer 142

To determine whether the matter is a public or private concern, the courts will look to the content, form, and context of the publication.

Answer 143

Special damages are actual pecuniary losses that must be specifically pleaded and proven. Whether special damages must be alleged as part of the prima facie case depends on the type of defamation. [look at the damage chart]

Answer 144

Type of Case * Actual Damages * Presumed/Punitive Damages *---* 1. Public Official or Public Figure * Actual Damage by Actual Malice by clear and convincing evidence * Presumed/Punitive Damage by Actual Malice *---* Private citizen with public concern/Media * Actual Damage by Negligence * Presumed/Punitive Damage by Actual Malice *---* Private with private concern: * Strict Liability for actual damages * Strict Liability for Presumed Damages/Punitive Damages