Torts

Question 1

Negligence

Answer 1

A prima facie case of negligence requires proof of a duty, breach, causation, and damages. In general, a duty of care is owed to all foreseeable persons who may foreseeably be harmed by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances.

Question 2

Professional Person

Answer 2

A professional person is held to a national standard and is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner

Question 3

Strict Products Liability

Answer 3

Under strict products liability, the manufacturer, retailer, or other distributor of a defective product may be liable for any harm caused by the product. The plaintiff must prove: (1) the product was defective (in design, manufacture, or failure to warn); (2) the defect existed at the time the product left the defendant’s control; and (3) the defect caused the plaintiff’s injuries when used in a reasonably foreseeable way

Question 4

Manufacturing Defect

Answer 4

A manufacturing defect is a deviation from what the manufacturer intended the produce to be that causes harm to the plaintiff. The test is whether the product conforms to the defendant’s own specifications.

Question 5

Implied Warranty of Merchantability

Answer 5

The implied warranty of merchantability warrants that the product being sold is generally acceptable and reasonably fit for the ordinary purposes for which it is being sold. Any product that fails to live up to this warranty constitutes a reach, regardless of any fault by the defendant.

Question 6

Market Share Liability Doctrine

Answer 6

Under the market share liability doctrine, if the plaintiff’s injuries are caused by a fungible product and it is impossible to identify which defendant placed the harmful product into the market, the jury can apportion liability based on each defendant’s share of the market.

Question 7

Alternative Liability Doctrine

Answer 7

Under the alternative liability doctrine, if the plaintiff’s harm was caused by (i) one of a small number of defendants, (ii) each of whose conduct was tortious, and (iii) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff’s harm.

Question 8

Concert of Action Doctrine

Answer 8

Under the concert of action doctrine, if two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the plaintiff’s harm, then all the defendants will be held jointly and severally liable.

Question 9

Battery

Answer 9

In a battery action, a plaintiff must show that the defendant caused a harmful or offensive contact with the plaintiff’s person or an intent to cause such contact. A defendant’s contact is intentional if he acts with the desire to bring about the contact or knows it is substantially likely to occur. . A defendant intentionally causes the contact if he means to bring it about or engages in action knowing that the contact is substantially certain to occur. The D only need to intend to bring about the contact; he need not intend that contact to be harmful or offensive (called the single-intent rule). .

Question 10

Vicarious Liability

Answer 10

Vicarious liability is a form of strict liability in which one person is liable for the negligent acts of another. An employer is liable for the tortious conduct of an employee that is within the scope of employment.

Question 11

Negligence Precaution

Answer 11

In determining whether a specific precaution is warranted, a jury must weigh the probability and the gravity of the injury against the burden of taking such precautions. Evidence of custom in an industry may be offered to establish the standard of care, but such evidence is not conclusive.

Question 12

Eggshell Plaintiff Rule

Answer 12

The defendant is liable for the full extent of the plaintiff’s injuries due to the plaintiff’s preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable.

Question 13

Abnormally dangerous activities

Answer 13

Defendants engaged in abnormally dangerous activities may be held strictly liable for damages caused by that activity, even in the absence of negligence. Activities are abnormally dangerous if they create a foreseeable and highly significant risk of physical harm even in the exercise of reasonable care and the activity is not commonly engaged in.

Question 14

Compliance with statutory standards

Answer 14

An actor who has complied with all statutory standard may still be found negligent if his conduct is not reasonable under the circumstances.

Question 15

Rescuer Foreseeability

Answer 15

Liability extends to foreseeable plaintiffs. A person who comes to the aid of another is a foreseeable plaintiff. If the defendant negligently puts either the rescued party or the rescuer in danger, he is liable for the rescuer’s injuries.

Question 16

Independent Contractor

Answer 16

Those who engage an independent contractor are not vicariously liable for the torts of that IC. The person who hires an IC will remain liable for any abnormally dangerous activities performed by the IC.

Question 17

False Imprisonment

Answer 17

False imprisonment requires that a person acts with intent to confine or restrain another person to a bounded area and those actions directly or indirectly result in such confinement. The plaintiff must be aware of the confinement or suffer actual harm. The confinement may be physical but may also be accomplished through threats, failure to provide a means of escape, or invalid use of legal authority. A plaintiff is not imprisoned if he consents. An area is not bounded if there is a reasonable means of safe escape.

Question 18

Negligent Infliction of Emotional Distress

Answer 18

A plaintiff can recover for negligent infliction of emotional distress (NIED) from a defendant whose tortious conduct placed the plaintiff in harm’s way if the plaintiff can demonstrate that she was within the zone of danger and the threat of physical impact caused emotional distress. Generally, the distress must exhibit physical symptoms. To recover as a bystander, the plaintiff must be closely related to a person injured, be present at the scene, and personally observe the injury.

Question 19

Medial Malpractice

Answer 19

An actor is liable for any reasonably foreseeable harm suffered as a result of her negligence; generally medical malpractice is a foreseeable intervening cause and will not break the chain of defendant’s liability

Question 20

Res Ipsa Loquitor

Answer 20

Under the doctrine of res ipsa loquitor, the trier of fact may infer the existence of negligent conduct in absence of direct evidence of negligence. The plaintiff must prove: (1) the accident is of a kind which ordinarily does not occur in the absence of negligence; (2) the harm was caused by an agent or instrumentality within the exclusive

Question 21

Joint and Several Liability

Answer 21

Under the doctrine of joint and several liability, each of two or more defendants who is found liable for a single and indivisible harm is subject to liability to the plaintiff for the entire harm. The plaintiff may then elect to collect the entire judgment from one defendant or portions from each, so long as the entire recovery does not exceed the full amount of the judgment.

Question 22

Strict Liability - Manufacturing Defect

Answer 22

To prevail on a strict liability claim based on a manufacturing defect, the P must show: (1) the product was defectively manufactured; (2) the defect existed when it left D’s control; and (3) the defect caused the P’s injury when the product was used in a reasonably foreseeable way.