TORTS

Question 1

public nuisance

Answer 1

A public nuisance is an unreasonable interference with a right common to the general public.

Note: A private citizen has a claim for public nuisance only if that citizen suffers harm that is different in kind from that suffered by members of the general public.

Unlike a private nuisance, a public nuisance does not require that the plaintiff have possessory rights in real property.

Question 2

learned intermediary rule

Answer 2

Under the learned intermediary rule, the manufacturer of a prescription drug or medical device typically satisfies its duty to warn by informing the prescribing physician of problems with the drug or device rather than informing the patient taking the drug. For drugs that cannot be legally obtained without a prescription, the drug maker is generally not required to provide a warning directly to the patient, but may instead rely on the learned intermediary rule.

Question 3

negligence- purely economic lost

Answer 3

A plaintiff who suffers purely only economic loss without any related personal injury or property damage cannot recover such loss through a negligence action

Question 4

res ipsa loquitur

Answer 4

o obtain a res ipsa loquitur jury instruction, a plaintiff must prove that :

(i) his injury was caused by an instrumentality or agent within the exclusive control of the defendant,
(ii) the accident was of a kind that ordinarily does not occur in the absence of negligence, and
(iii) the harm was not due to any action on the part of the plaintiff.

Question 5

conversion

Answer 5

The defendant intentionally commits an act depriving the plaintiff of possession of her chattel or interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff of the use of the chattel.

Note: The plaintiff’s damages are the chattel’s full value at the time of the conversion.

Question 6

Foreseeability

Answer 6

Cardozo (majority) view - a duty of care is owed to the plaintiff only if she is a member of the class of persons who might be foreseeably harmed (sometimes called “foreseeable plaintiffs”) as a result of the defendant’s negligent conduct.

Andrews (minority view) - if the defendant can foresee harm to anyone as a result of his negligence, then a duty of care is owed to everyone (foreseeable or not) harmed as a result of his breach.

Question 7

Private Nuisance

Answer 7

A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual’s use or enjoyment of his land.

Statutory or regulatory compliance is not a complete defense, but may be admitted as evidence as to whether the interference with the plaintiff’s use and enjoyment of her land is unreasonable.

Question 8

Recovery Products Liability?

Answer 8

Only personal injury or property damage. A claim for purely economic loss must be brought as a breach-of-warranty action.

Question 9

defamation

Answer 9

A plaintiff may bring an action for defamation if:

i) The defendant’s defamatory language;
ii) Is of or concerning the plaintiff;
iii) Is published to a third party who understands its defamatory nature; and
iv) It damages the plaintiff’s reputation.

For matters of public concern, the plaintiff is constitutionally required to prove fault on the part of the defendant. If the plaintiff is either a public official or a public figure, then the plaintiff must prove actual malice.

If either (i) the defamatory statement relates to a matter of public concern or (ii) the plaintiff is a public official or a public figure, then the plaintiff must also prove that the defamatory statement is false.

Question 10

Reclaiming chattel

Answer 10

A person may use reasonable force to reclaim personal property that another has wrongfully taken. Before using reasonable force, the person must request the return of the chattel unless the request would be futile.

Note: If the original taking was lawful (e.g., a bailment) and the current possessor of the property has merely retained possession beyond the period of time to which the owner consented, then only peaceful means may be used to reclaim the chattel.

Question 11

When can a bystander outside the zone of danger recover for NIED?

Answer 11

NIED recovery for plaintiffs outside the zone of danger is allowed if the plaintiff:

i) is closely related to the person injured by the defendant
ii) was present at the scene of the injury; and
iii) personally observed (or otherwise perceived) the injury.

Question 12

What is the majority rule for proximate cause?

Answer 12

A defendant is liable for reasonably foreseeable consequences resulting from his conduct. In addition, the type of harm must be foreseeable, although the extent of harm does not need to be foreseeable. A defendant’s liability is limited to those harms that result from the risks that made the defendant’s conduct tortious, within the scope of liability of the defendant’s conduct.

Question 13

Defective product

Answer 13

A product is defective when, at the time of the sale or distribution, it contains a:

i) Manufacturing defect: A deviation from what the manufacturer intended the product to be that causes harm to the plaintiff (the test is whether the product conforms to the defendant’s product specifications);
ii) Design defect: A defect in the design of the product as determined under the consumer expectation test (unreasonably dangerous beyond the expectation of an ordinary user) and/or the risk-utility test (a reasonable alternative design that was economically feasible was available to the defendant and the failure to use that design rendered the product not reasonably safe); or
iii) Failure-to-warn defect: There is a foreseeable risk of harm, not obvious to an ordinary user of the product, which risk could have been reduced or avoided by providing reasonable instructions or warnings, rendering the product not reasonably safe.

Question 14

When does an intervening event (an act or event occurring after the defendant’s tortious act and before the plaintiff’s injury) cut off a defendant’s liability?

Answer 14

An intervening event that breaks the chain of proximate causation between the defendant’s tortious act and the plaintiff’s harm is a superseding cause. An unforeseeable intervening event is generally treated as a superseding cause, while a foreseeable intervening event generally is not.

Question 15

intentional interference with a contract?

Answer 15

plaintiff must prove that:

i) A valid contract existed between the plaintiff and a third party;
ii) The defendant knew of the contractual relationship;
iii) The defendant intentionally interfered with the contract, causing a breach; and
iv) The breach caused damages to the plaintiff.

Question 16

strict-products-liability- comparative fault jurist.

Answer 16

In most comparative-fault jurisdictions, the plaintiff’s own negligence reduces his recovery in a strict-products-liability action in the same manner as in a negligence action. In those jurisdictions, a plaintiff’s conduct that amounts to an “assumption of the risk” is treated as comparative negligence in order to reduce, but not eliminate, recovery.

Question 17

Firefighter’s rule:

Answer 17

An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent in the job.

Question 18

IIED

Answer 18

Conduct is extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society. The character of the conduct must be outrageous and the conduct must be sufficiently unusual to be extreme.

Note: While liability generally does not extend to mere insults, threats, or indignities, a defendant’s abusive language and conduct may be sufficiently “extreme and outrageous” if the defendant is in a position of authority or influence over the plaintiff, or the plaintiff is a member of a group with a known heightened sensitivity.

Question 19

Battery vs. Assault

Answer 19

1) Bodily contact is not required for assault.

2) The plaintiff must be aware of or have knowledge of the defendant’s act or threat for assault.

Question 20

MOST IMP DUTY

Answer 20

1. Trespasser - A land possessor is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers. (Note: Land possessors generally owe no duty to undiscovered trespassers, nor do they have a duty to inspect their property for evidence of trespassers.)
2. Licensee - A land possessor has a duty to either correct or warn a licensee of concealed dangers that are either known to the land possessor or that should be obvious to her. (Note: The land possessor does not have a duty to inspect for dangers, but must exercise reasonable care in conducting activities on the land.)
3. Invitee - A land possessor owes an invitee the duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them. (Note: The duty of reasonable care owed to an invitee does not extend beyond the scope of the invitation, and the invitee is treated as a trespasser in areas beyond that scope.)

Question 21

two or more defendants may have contributed to a plaintiff’s indivisible injury,

Answer 21

Substantial-factor test: In cases in which the conduct of two or more defendants may have contributed to a plaintiff’s indivisible injury, each of which alone would have been a factual cause of that injury, the test applied by most courts is whether the defendant’s tortious conduct was a substantial factor in causing the plaintiff’s harm.

Note: Under the minority rule of the Third Restatement, each such cause or act is regarded as a factual cause of the harm. Together they are designated as “multiple sufficient causes.”

Question 22

What defenses are available to a defamation action?

Answer 22

1) Truth is a complete defense.
2) Consent is a defense, provided the scope of the consent is not exceeded.
3) Absolute privileges exist for statements made:
(i) In the course of judicial proceedings by the participants to the proceeding or legislative proceedings by witnesses to the proceedings;
(ii) Between a husband and wife; and
(iii) As required publications by radio, television, or newspaper.
4) Qualified (conditional) privileges exist for statements:
(i) Made in the interest of the publisher (defendant), such as defending his reputation;
(ii) Made in the interest of the recipient of the statement or a third party;

or

(iii) Affecting an important public interest.

Question 23

What is the effect of a plaintiff’s establishment of res ipsa loquitor?

Answer 23

If the plaintiff establishes a prima facie case of res ipsa, then the trial court should deny the defendant’s motion for a directed verdict, and the issue of negligence must be decided by the trier of fact. In most jurisdictions, res ipsa does not require that the trier of fact find negligence on the defendant’s part. It simply establishes an inference of negligence sufficient to avoid dismissal of the plaintiff’s action

Question 24

“eggshell skull” rule?

Answer 24

The defendant is liable for the full extent of the plaintiff’s injuries that may be increased because of the plaintiff’s preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable.

Question 25

!!!!!!!!!MEMORIZE!!!!!!!!

Answer 25

A Plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover such loss through a negligence action

Question 26

Trespass to Chattels & Conversion

Answer 26

Trespass to Chattels: (1) D intentionally interferes with
personal property (damage, preventing using), AND (2)
amount of damage is small. (P needs bio show actual damages though)

Conversion – (1) D intentionally interferes with personal
property (damage, preventing using), AND (2) amount of
damage is substantial.
- P can recover full market value of property