Torts

Question 1

Strict Liability: Ultra-Hazardous/Abnormally Dangerous Conduct

Answer 1

Elements to be shown:

1. D was engaged in ultrahazardous or abnormally dangerous activity;
2. P was a foreseeable plaintiff;
3. The harm was actually and proximately caused by the dangerous nature of the activity;
4. P suffered damage to PERSON OR PROPERTY.

Question 2

Ultrahazardous Activity

Answer 2

Where the activity:

1. Creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and
2. It is not a matter of common usage in the community.

Whether an activity is ultrahazardous is a question of law for the Court.

Question 3

Malicious Prosecution

Answer 3

Includes civil and criminal proceedings. Requires showing:

1. Institution of proceedings against P;
2. Termination in P’s favor;
3. Absence of probable cause for the prior proceedings;
4. Improper purpose; and
5. Damages.

Question 4

Malicious Prosecution: Absence of Probable Cause

Answer 4

May be shown by:

1. Insufficient facts for a reasonable person to believe liability, OR that the D didn’t actually believe P was liable;
2. If D initiated the proceedings on advice of counsel after disclosure of all facts this establishes probable cause.

Question 5

Strict Products Liability

Answer 5

Elements:

1. D is a commercial supplier
2. D produced or sold a product that was defective when it left the D’s control
3. The defective product was the actual and proximate cause of P’s injury; and
4. P suffered damages to person or property.

Question 6

Design Defect

Answer 6

All products of the line are made according to manufacturing specifications, but are in a defective condition unreasonable dangerous to users because of their components or packaging.

Elements:

1. Less dangerous modification or alternative was economically feasible
2. Product may be defective if it does not have clear and complete warnings.

Negligent failure of an intermediary does not cut off liability of negligent supplier.

Question 7

Warning/Learned Intermediary

Answer 7

1. If P claims that one of the defective conditions was the lack of an adequate warning she can rely on a presumption that an adequate warning would have been read and heeded.
2. A warning given about a product to the prescribing physician will usually suffice.

Question 8

Actual and Proximate Cause in Products Liability

Answer 8

Actual Cause: P must trace the harm suffered to a defect in the product that existed WHEN THE PRODUCT LEFT THE DEFENDANT’s control.

Proximate Cause: Must show the injury was foreseeable at the time product placed into stream of commerce. Remoteness does not make it unforeseeable.

Question 9

Negligence: Products Liability

Answer 9

1. Normal elements for negligence.
2. A duty of care is owed by a commercial supplier of products to all foreseeable plaintiffs.
3. Breach of duty is shown by: (i) negligent conduct that leads to; (ii) supplying the defective product.

Question 10

Implied Warranty of Merchantability

Answer 10

1. When a merchant who deals in a certain kind of product, there is an implied warranty that it will be merchantable, i.e., generally fit for the ordinary purposes for which such goods are used;
2. If the product fails to live up to the warranty, the defendant may be liable for any injuries caused by the product.

Use this in products liability cases.

Question 11

Express Representation & Misrepresentation

Answer 11

Express warranty: Arises where seller or supplier makes any affirmation of fact or promise that buyer relies upon relating to the purchase of the goods.

Misrepresentation: Liability for misrepresentation/breach arises where: (i) it is a material fact; (ii) intended to induce reliance by buyer; and (iii) in fact does induce buyer.

Question 12

Duty of Care: Professionals

Answer 12

1. Knowledge and skill of a member of the profession in good standing.
2. For physicians this is held to a national standard of care.
3. Doctors proposing treatment have a duty to provide patient with enough information about the risks in order for the patient to provide informed consent.
4. If a doctor fails to disclose a risk that was serious enough that a reasonable person would have withheld consent to the treatment, the doctor has breached his duty of care.

Question 13

Attractive Nuisance

Answer 13

Elements:

1. Dangerous condition present which owner is or should be aware;
2. The owner knows or should know that young persons frequent the area;
3. Condition is dangerous BECAUSE of the child’s inability to appreciate the risk; and
4. The expense of remedying the condition is slight compared to the magnitude of the risk.

Question 14

General Standard of Care

Answer 14

1. Reasonably prudent person, to avoid unnecessary harm to others.

Question 15

Design Defect

Answer 15

Typically, in design defect cases, the Plaintiff must establish that there is a feasible alternative, i.e., a less dangerous alternative that is economically feasible. Factors that are considered include:

1. Usefulness and desirability of the product;
2. Availability of safer alternatives;
3. The dangers of the product identified at time of trial;
4. Likelihood and probable seriousness of the injury;
5. Obviousness of the danger;
6. Normal public expectation of the danger;
7. Feasibility of eliminating the danger without impairing utility or making it unduly expensive.

Question 16

Vicarious Liability

Answer 16

1. Employer vicariously liable for the torts committed by her employee within the scope of the employment relationship, but will NOT be vicariously liable for the torts of an IC unless the IC is engaged in inherently dangerous activity or is non-delegable for public policy reasons.
2. Factors making an agent an IC:

(i) short duration/definite period;
(ii) personal task of the principal rather than for business;
(iii) compensation was task based rather than time based; and
(iv) parties intent/belief.

Question 17

Negligent Infliction of Emotional Distress

Question 18

Defamation

Answer 18

1. Defamatory statement;
2. Of and concerning the plaintiff;
3. Publication to a third person; and
4. Damage to the Plaintiff’s reputation.

A defamatory statement is one that adversely affects a plaintiff’s reputation.

Question 19

When a Defamatory Statement is Actionable

Answer 19

1. Must generally be a statement of fact;
2. A statement of opinion may be actionable if it appears to be based on specific facts and an express allegation of those facts would be defamatory;
3. Whether a published statement is one of fact or opinion depends on the circumstances surrounding the publication and nature of the words used;
4. Generally, the broader the language used, the less likely it will be reasonable interpreted as a statement of fact or an opinion.

Question 20

Defamation: Standards of Proof

Answer 20

1. Public Figure or Public Official: showing of fault, meaning it must have been made with actual malice.
2. Private Figure but of Public Concern: Negligence as to truth or falsity.
3. Purely private concern: No fault requirement.

Court looks to the content, form, and context of publication to figure out which.

Question 21

Defamation: Damages

Answer 21

1. Special damages are pecuniary losses that usually must be specifically pleaded and proven.
2. In most states, for all libel and for slander that falls within a slander per se category, special damages do not need to be pleaded and proven.
3. The plaintiff need only allege harm to reputation to recover general damages, which are presumed at law.

Question 22

Defamation: Qualified Publication Privilege

Answer 22

1. In certain situations a speaker may say something defamatory without being liable because of a qualified privilege.
2. One situation where QP exists is where the recipient has a legitimate interest in the information, and it is reasonable for the D to make the publication.
3. Because the privilege is only qualified, it may be lost through abuse, such as if the statement is not within the scope of the privilege or was made with malice.
4. The D bears the burden of proving the privilege exists.
5. If the D establishes the privilege, the P bears the burden of proving it has been lost through abuse.

Question 23

Contributory Negligence, Comparative Negligence, Assumption of the Risk

Answer 23

1. A Plaintiff whose negligence was found to have contributed to her injury was completely barred at common law from recovering under the traditional contributory negligence rules;
2. A plaintiff who knowingly and voluntarily assumed the risk of injury from the defendant’s conduct was similarly barred from recovering damages.
3. Most states have replaced this with comparative negligence.
4. Traditionally, ordinary contributory negligence was not a defense to strict liability, whereas assumption of risk was a defense.

Question 24

Products Liability: Retailer

Answer 24

In a products liability action based on negligence, a retailer who buys from a reputable manufacturer, with no REASON TO ANTICIPATE that a product is dangerous will not be liable.