Torts Flashcards

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1
Q

What torts does transferred intent apply to?

A

Only applies to battery, assault, false imprisonment, trespass to land, and trespass to chattels

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2
Q

What is the rule/elements of battery? (tort)

A

Rule: D causes harmful or offensive contact with P’s person or something closely connected to P

i) Intent: D must either:
(1) Desire to cause an immediate harmful or offensive contact; or
(2) Know that such contact is substantially certain to occur

ii) Harmful or Offensive Contact
(1) Inflict pain or impairment of any function of the body
(2) Offensive to a reasonable person
(3) P need not be aware of the contact (unlike assault)

iii) To the person or something physically closely connected thereto
b) P does not have to prove injury; will get compensatory damages just by showing the elements

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3
Q

What is the defense to battery?

A

consent

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4
Q

What is the rule for assault? (Tort)

A

Rule: D intentionally causes P to be in reasonable apprehension of an immediate harmful or offensive contact

i) Intent - D must:
(1) Act with the desire to cause an immediate harmful or offensive contact or the apprehension of such contact, or
(2) Know that such a result is substantially certain to result

ii) Reasonable Apprehension – objective (Reasonable Person) standard
(1) If the apprehension is reasonable, it doesn’t matter whether D could actually carry out the threat.

iii) Imminent Battery – Must be able to occur almost instantly

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5
Q

What is the rule/elements for false imprisonment?

A

Rule: D intentionally causes P to be confined in a bounded area against P’s will and P knows of the
confinement or is injured by it

i) Intent
(1) D desires to confine or restrain P in a bounded area, or
(2) Knows that such confinement is virtually certain to result

ii) Confinement in Bounded Area
(1) Physical barriers, threats of force, failing to release P after duty to release arises, or the invalid assertion of legal authority
(2) No duration requirement
(3) If P knows (actual knowledge) of reasonable means of escape, then no confinement and no liability
(a) Reasonable = no threat of harm to P or property; can’t expose P to risk of embarrassment

iii) Against P’s Will – Consent is a defense
iv) P is aware of confinement OR injured thereby (harm/damages)

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6
Q

What is the rule/elements for Intentional Infliction of Emotional Distress? (IIED)

A

Rule: D engages in an intentional or reckless act amounting to extreme and outrageous conduct that causes P severe emotional distress

i) Intentional or Recklessness
(1) Intentional = D acts with the desire to cause severe emotional distress or knows that such severe emotional distress is virtually certain to occur
(2) Recklessness = D acts in conscious disregard of a high degree of probability that emotional distress will follow

ii) Extreme and Outrageous Conduct
(1) Conduct exceeds all bounds tolerated by civilized society
(2) Offensive or insulting language generally not enough, except when:
(a) D is a common carrier/innkeeper;
(b) D knows of P’s particular sensitivity; or
(c) D is an authority figure using racial/ethnic slurs against a subordinate

iii) Severe Emotional Distress
(1) P does not have to prove physical injury, but distress must be severe – greater than reasonable person (objective test) would expect to endure
(2) Must be substantial/long lasting as opposed to trivial/transitory

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7
Q

What is the rule/elements for trespass to land?

A

Rule: Intentional act that causes invasion of P’s land, interfering with P’s possessory interest in the land

i) Intent
(1) D desired to enter the land/caused something to enter, or
(2) D knew that land entry was substantially certain to result
(a) Mistake is not a defense

ii) Entry
(1) D enters or causes someone/something to enter (ex: bullet hypo)
(2) D enters the land lawfully but then refuses to leave when required
(3) D fails to remove/eject from P’s land when under legal duty to do so

iii) P’s Land—anyone in possession can bring claim (landowner, tenant, adverse possessor)

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8
Q

What is the rule/element for trespass to chattels?

A

Rule: D interferes with P’s chattel, causing damages

i) Intent
(1) D intentionally performs the physical act that interferes with P’s chattel
(2) Liable even though D did not intend to trespass (i.e., does so with good faith)
(3) Mistake is not a defense

ii) Interference = Uses or borrows without authorization
iii) Plaintiff’s Chattel = P’s personal property

iv) Actual Damages – Unlike trespass to land, proof of actual damages is an element of the cause of action for trespass to chattels. Actual damages to the chattel itself are not necessary; however, actual damages would include the value of loss of use of the chattel
during a dispossession or the cost to remedy an intermeddling

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9
Q

What are the remedies for trespass to chattels?

A

Damages: Cost of repair, fair market rental value, and potentially punitive damages if D is a particularly bad actor (willful, wanton, or malicious conduct).

Replevin: Get back personal property of which one has been wrongfully dispossessed

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10
Q

What is the rule / elements for conversion?

A

Rule: Intentional act by D, where D exercises dominion or control that causes the destruction of,
or serious and substantial interference with, P’s chattel

i) Intent
(1) Mistake no defense – liable even if acting in good faith and no intent

ii) Dominion and Control (Bona Fide Purchaser)

iii) Destruction or Serious and Substantial Interference = the exercise by D of dominion and
control over the chattel
(1) Interference with P’s property interest is more significant than trespass to chattel. Longer
period of interference and greater use by D leads to conversion

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11
Q

What are the remedies for conversion?

A

Remedies

i) Forced sale (common) – Market value at time converted
ii) Replevin – Action brought by P to get personal property back

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12
Q

What are the defenses and privileges to intentional torts?

A

POPCANS

  • Privilege
  • Others (defense of)
  • Property (defense of) - reasonable force; no deadly
  • Consent - express/implied (reasonable); Mistake can negate consent when it goes to the consequences or nature of the act
  • Authority (arrest; shopkeeper’s privilege)
  • Necessity
  • Self-defense (honest and reasonable belief; proportionate force)
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13
Q

What are the elements of negligence?

A

Duty, breach, causation (actual and proximate), damages

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14
Q

What is the duty of an ordinary person to others?

A

D has a legal duty to act as an ordinary, prudent, reasonable person taking precaution against
unreasonable risk of injury to others

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15
Q

What is nonfeasance?

A

Failure to intervene/confer benefit on the P

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16
Q

No duty to rescue or aid, except when:

A

(1) D’s tortious conduct creates need to rescue;
(2) Undertaking to act—at common law, you do not have to intervene but if you do, must act
reasonably (many states have enacted Good Samaritan statutes—rescuer protected unless
rescuer is reckless or engages in intentional wrongdoing)
(3) Special relationship of dependence or mutual dependence (carrier/passengers, inn
keeper/guest, captain/passengers, drinking buddies)

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17
Q

Do providers of alcohol have a duty to control their customers?

A

(a) Traditional Rule: Purveyor not responsible for DUI injuries
(b) 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

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18
Q

What is negligent entrustment?

A

When D gives something dangerous to someone D knows, or should know, is not competent to handle it (i.e., Father gives gun to infant who shoots P)

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19
Q

Generally, there is no duty to protect another person from third party criminal conduct (nonfeasance) unless:

A

(a) Special relationship – Landlord/Tenant, Business/Invitee
(b) Some jurisdictions only find a duty where there is a special relationship and prior similar incidents that make the third party criminal conduct particularly foreseeable

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20
Q

What is the duty of a government entity with a Proprietary function (acting in private area)?

A

Treated as any other D for duty analysis

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21
Q

What is the duty of a government entity doing Discretionary activity/function (using judgment and allocating resources i.e., setting policy)?

A

Courts will not find a duty

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22
Q

What is the duty of a government entity doing a ministerial function?

A

Duty once government has undertaken to act (e.g.,: stop

sign installed incorrectly leading to accident)

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23
Q

What is the Public Duty Doctrine?

A

Courts find no duty when police officers/firefighters fail to provide an adequate response, except when:

(a) Special relationship; or
(b) Agency has increased the danger beyond what would otherwise exist

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24
Q

What are the elements of Negligent Infliction of Emotional Distress (NIED)?

A

D engages in negligent conduct and, as a result, P suffers emotional distress + some sort of physical manifestation

(a) Most jurisdictions require P to be in the zone of danger – At risk of physical harm
(b) P must have suffered a physical manifestation of the emotional distress, proving genuineness

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25
Q

What are the exceptions to the general requirements for NIED?

A

(i) D negligently shares information about the death of a loved one
(ii) D negligently mishandles a corpse

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26
Q

When can a bystander recover for NIED?

A

Physical harm occurs to a close relative and P suffers emotional distress as a result of injury to the close relative

(a) P was located near the scene of the incident
(b) P suffered severe emotional distress
(c) P had a close relationship with the victim (immediate family member)

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27
Q

What is an invitee and what duty does a Landowner have to them?

A

Invitees = Enters onto D’s land at D’s express or implied invite and for a purpose relating to D’s interest or activities

-D has a duty to exercise reasonable care to prevent injuries caused by activities conducted on D’s land

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28
Q

What is a licensee and what duty does a landowner have to them?

A

Licensees = Enters D’s land with D’s express or implied permission and are not there for a purpose benefiting D or D’s activities, nor is the land held open the public (i.e., social guest)

-duty: Must warn of known concealed dangers (just warn, not cure)

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29
Q

What is a trespasser and what duty does a landowner have to them?

A

Trespassers = Enters without express or implied consent of land possessor

-Duty to avoid infliction of willful or wanton harm

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30
Q

What is the duty of a landowner who is engaged in an activity on the land?

A

Duty of reasonable care owed to all except trespassers

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31
Q

To whom does a landowner have a duty to reasonably search out dangers on the property?

A

Invitees only

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32
Q

What is the duty of a landowner who has known or frequent trespassers (must be obvious- e.g., a well-worn path)?

A

Duty to warn of concealed dangerous artificial conditions

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33
Q

When does a landowner have a duty to child trespassers? (Attractive Nuisance Doctrine)

A

A heightened standard of care may apply as to artificial conditions on D’s land. Even though the child is trespassing, if the below prerequisites are met, the child will be treated as an invitee:

(1) Too young to appreciate the danger;
(2) D knows, or has reason to know, of trespass;
(3) D knows of the dangerous condition;
(4) Condition is artificial (fountain, pool, equipment that looks fun to climb on); and
(5) The risk of danger of the artificial condition outweighs its utility and burden to fix it

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34
Q

What is the duty of a landowner to plaintiffs not on the land but adjacent to it?

A

(1) Artificial condition on land –> duty of reasonably care

(2) Natural condition from land –> no duty except trees in urban areas

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35
Q

A landowner is not liable to a tenant for negligence, except in the context of:

A

(a) Common area over which LL retains control;
(b) Negligent repairs;
(c) At time of lease, LL knows of a concealed dangerous condition; or
(d) LL knows that T is going to hold property open to the public

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36
Q

In measuring the standard of care of a Reasonably Prudent Person (RPP), the law does not take into account mental ability, speed of reflexes, or mental health. The law does take into account:

A

(a) Physical conditions (blind, deaf, amputee) –> D held to the standard of a RPP with that condition (ex: RP blind person)
(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 whether D acted reasonably under the circumstances

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37
Q

Breach of duty = Failure to act as a RPP – Factors to analysis of breach:

A

(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?

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38
Q

How is a child’s conduct analyzed/measured for breach analysis?

A

Majority Rule: Minor D’s conduct is assessed according to what a reasonable child of the same age, experience, education, and intelligence, as D, would have done
(1) Exception: Children engaging in adult, inherently dangerous activities are held to an adult standard of care (ex: driving)

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39
Q

What is the effect of statutory negligence?

A

Statutes that provide civil liability supersede common law of torts (ex: A state law says anyone injured in a car accident not wearing a seatbelt cannot recover in tort. Thus, if P was not wearing a seatbelt when injured in a car accident, P cannot recover in a negligence action)

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40
Q

What is negligence per se and when is it applicable?

A

Where D’s conduct also violates a statute that does not provide for civil liability (criminal statute), that statute can establish the standard of conduct for breach of duty purposes(ex: crim traffic law)

Applicable if:

(1) P is member of a class the law is designed to protect; and
(2) Injury caused by D’s conduct is the type of statute sought to protect

If statute applies –> (majority rule) unexcused violation of the law establishes D breached duty to
P. P still needs to prove proximate cause, damages, etc.
(1) Exception: Excused statutory violation, like an emergency not of D’s own making, or
when it’s more dangerous to comply with the law
(2) Exception: Licensing statutes – Not having a license does not create liability
(a) Expired driver’s license is not negligence per se

When statute does not apply à statute will not set standard of care, case proceeds under RPP,
not under negligence per se

41
Q

What is the standard of care for physicians?

A

Medical Malpractice: Physicians required to possess and use the knowledge, skill, and training
of other physicians in good standing in relevant geographic community
(1) Specialists = National standard
(2) General practitioners = Locality standard

42
Q

What is the standard of care for Lawyers, Architects, Accountants?

A

so long as professional complies with custom, cannot be found to have breached duty—deviation from custom means breach of that duty

43
Q

What is the effect of lack of informed consent to medical care?

A

(1) Traditional (battery): Physician is liable for battery if no informed consent about risks; consent is negated because of lack of disclosure - still the case when there is gross deviation from actual consent (ex: P agrees to tonsillectomy, but leg is amputated instead)
(2) Traditional (negligence / physician rule): Physician must divulge risks that are customarily divulged

(3) New Trend – Standard of materiality / patient rule: Physician must divulge all material risks, risks that a
reasonable patient would want to know in deciding whether to undergo procedure. Failure to
divulge material risk is malpractice IF P can show that P would have refused procedure if risk was divulged

44
Q

when is a duty breached in a slip-and-fall case?

A

Slip-and-Fall Cases: P must show that D was negligent for not discovering, and repairing, the
dangerous condition—dangerous condition was present long enough that D should have noticed it (Ex: Slipped on rotten banana peel)

45
Q

What is Res Ipsa loquitur?

A

Allows jury to infer D’s breach based on the nature of the accident and D’s relationship to it

(1) Only used to show breach
(2) P needs to show:
(a) This sort of thing does not occur absent negligence;
(b) D is probably the responsible party because D had control over instrumentality of harm; and
(c) P did not contribute to the injury

46
Q

How must a plaintiff show cause-in-fact / actual cause?

A

P shows that, more likely than not, but for D’s negligence, P would not have been injured –>
other reasons don’t matter. Preponderance matters as long as more than 50%, then D is liable for full
extent of damages under “the but” for test

47
Q

When is the substantial factor test used?

A

Multiple Causes—Substantial Factor Test (instead of “but for” test) = Used when 2 Ds cause harm, but each D alone would have been sufficient to cause the entire harm –> each D is a cause-in-fact if D was a substantial factor in causing the harm (Ex: Two arsonists’ fires burn down same mansion)

–Assume joint and several liability = P can sue one or both Ds and collect entire amount from one D alone; D found liable can seek contribution from other D

48
Q

What is the loss of chance in re: to causation?

A

(typically medical malpractice situations) (not a majority rule)

(1) P must show that but for the medical malpractice, P would not have lost chance/died (e.g., if Doctor found the cancer, P would have had a 40% chance of survival—P would lose because there was a 60% chance P would have died)
(2) Many jurisdictions now recharacterize injury to loss of chance and damages are reduced but not extinguished

49
Q

When is alternative liability theory applied and what is its effect? (Summer v. Tice – two hunters shoot at quail and hit P)

A

(1) When to apply:
(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

(2) Burden shifts to Ds to show that they were not the cause. If D cannot do so, they will be jointly/severally liable

50
Q

When is market share liability applicable?

A

(1) Generic product—P cannot show which of a large group of negligent D’s was responsible. P can sue those who might have caused P’s harm and each D is responsible based on its share of the market
(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 product that harmed

51
Q

What is the eggshell skull rule?

A

Eggshell skull rule: Take your victims as you find them. It does not matter if P is susceptible to greater harm
because of a unique susceptibility, like an eggshell skull

(unforeseeable extent of harm does not cut off liabiilty)

52
Q

When is a cause superseding? (and thus cuts of liability)

A

Superseding Cause – Unforeseeable, intervening cause that breaks the chain of causation
between the initial wrongful act and the ultimate injury –> Relieves original tortfeasor of liability for
lack of proximate cause
i
-The more culpable the intervening force, the more likely it supersedes

-Subsequent negligent conduct is generally not so unforeseeable that it cuts off liability. Look for
passage of time to gauge whether the conduct moves from intervening to superseding (at some
point liability is cut off)

-Examples of superseding causes: Unforeseeable criminal acts or torts of third parties, highly
extraordinary harm arising from D’s conduct, including gross negligence by third parties, and acts
of nature

53
Q

What are the general categories of damages that are available for negligence?

A

a) Personal injury and property damages are recoverable
b) Compensatory damages – return P to pre-injury position

Nominal damages are not available; Punitive damages are not available for just negligence

54
Q

What must a plaintiff show to to recover compensatory damages and what are the 2 general types?

A

Requires:

(1) Type must be foreseeable (not the extent, but the type of damage);
(2) Must be reasonably certain (not speculative); and
(3) Not avoidable

Two categories:
(1) Special Damages – Pecuniary (medical costs), lost wages, and cost of repair
(a) Can recover past, present, and future damages (future reduced to present value)
(b) Collateral Source Rule – The fact that P has insurance does not mean D does not
have to pay up. Also applies to gratuitous services
(2) General Damages – More controversial because intangible and difficult to measure
(a) Pain and suffering

55
Q

When can punitive damages be recovered and what considerations are relevant for the amount?

A
Punitive Damages – never recoverable just for negligent conduct – D’s acts must be more culpable 
than negligence (like willful, malicious, or reckless)
  • Wealth of D is highly relevant
    (1) The Due Process Clause limits the amount. Generally, more than 10% ratio to compensatory damages is considered to be unconstitutional
56
Q

What are the 3 general defenses to negligence?

A

1) contributory negligence and comparative fault
2) assumption of risk
3) avoidable consequences - P must take reasonable steps after injury to not increase/exacerbate

57
Q

What is the effect of a P’s negligence in a contributory negligence jurisdiction?

A

Any fault by P bars recovery

58
Q

What is pure comparative fault?

A

[Assume pure comparative fault where joint and several liability applies, unless told otherwise (default)]

(1) P can recover no matter how much P is at fault. Recovery is the amount of damages minus
the percentage that P is at fault
(2) Joint/several liability applies if multiple negligent D’s, and P is also at fault. Subtract out P’s percentage of fault and P can sue one or more Ds to get full remaining amount. If P sues only one D, the D found to be at fault can then seek contribution from the other Ds

59
Q

What is Modified Comparative Fault?

A

P is barred from recovery if P is as much at fault or more at fault than D

60
Q

What is the last clear chance doctrine?

A

(generally the wrong answer!)

(1) Only applies in context of contributory negligence
(2) If D’s negligence occurs after P’s, so D had the last opportunity to avoid, P is entitled to full recovery

61
Q

When is assumption of risk as a defense not permitted?

A

not allowed for necessities (E.g., LL rents an apartment or a hospital provides care)

62
Q

What must D show to establish an implied assumption of risk defense?

A

Recovery will be barred, or reduced, if D can establishes that P:

(1) Knew of and appreciated the nature of the risk;
(2) Appreciated the specific danger that injured him; and
(3) Voluntarily chose to subject himself to that danger

63
Q

What is the firefighter rule?

A

where P is a professional rescuer, and is injured
due to an inherent risk of that job, P cannot recover in negligence against the person who created the need for rescue
(1) Different from Good Samaritans—we want to encourage Good Samaritans to rescue so the
law allows them to sue for negligence

64
Q

What constitutes an abnormally dangerous activity, for which there is strict liability if the activity causes the harm?

A

Abnormally dangerous when:

(1) There is a high risk of serious harm to other +
(2) D cannot engage in the activity without risk, and cannot eliminate the risk with care+
(3) It is not a commonly undertaken activity in the community

ii) P can recover absent proof of fault as long as D was involved and the activity caused the harm
iii) Proximate cause = P must be injured by the risk that makes the activity dangerous

65
Q

Contributory negligence is generally not a defense for strict liability, except when:

A

P knew of the danger that justified imposition of strict liability and his contributory negligent action caused exactly that danger to manifest

-Here, P could be said to have assumed the risk; P will be completely barred from recovery

66
Q

What are the 3 theories under liability may be imposed for a product in an unreasonably dangerous
defective condition?

A

i) Manufacturing Defect (easiest) = Manufactured in a form other than intended by manufacturer. P must show that Product is in a condition not intended by manufacturer and defect existed when leaving manufacturer’s hands
ii) Design Defect = Made as intended by manufacturer but still presents a danger of personal injury or property damage to P because of a flawed design.

ii) Warning
(1) P is asserting a warning is inadequate –The test here is reasonableness. Does the warning reasonably inform a reader of the risks of the product and how to reduce them? Look at language, placement, size of font, and clarity
(2) P is asserting there is no warning – manufacturer has to warn about risks of which it knows or should know. Consider the gravity and probability of harm
(a) 1% risk of death – should warn
(b) 1% risk of tooth discoloration – probably not

67
Q

What are the 2 tests for design defect theory of product liability?

A

(1) Ordinary consumer expectation test – Product is more dangerous than would be contemplated by the ordinary consumer who possesses ordinary knowledge common to the community

(2) Risk-utility balancing – Jury determines whether the danger the design threatens (cost in human injury and property damage) outweighs its utility to society. Product will be found defective if an alternative design could have reduced the danger at about the same cost.
- Questions to ponder: How easy would it be to swap out the defective design for the alternatives? How high is the likelihood of harm and how bad would the harm be if it happened? How important/useful is the product?

67
Q

What are the 2 tests for design defect theory of product liability?

A

(1) Ordinary consumer expectation test – Product is more dangerous than would be contemplated by the ordinary consumer who possesses ordinary knowledge common to the community

(2) Risk-utility balancing – Jury determines whether the danger the design threatens (cost in human injury and property damage) outweighs its utility to society. Product will be found defective if an alternative design could have reduced the danger at about the same cost.
- Questions to ponder: How easy would it be to swap out the defective design for the alternatives? How high is the likelihood of harm and how bad would the harm be if it happened? How important/useful is the product?

68
Q

When are damages recoverable in a product liability suit?

A

Recoverable when there is personal injury or property damage other than to the product itself

  • Where the harm is only to the product itself, can only claim a breach of warranty.
  • Consequential/subsequent economic losses are not enough

Example: Car won’t start; lose $5k in deliveries. Not enough for strict product liability unless for example, the car blew up and also damaged the garage

69
Q

What are the defenses to strict product liability?

A

i) Misuse—P’s use of the product is neither intended nor foreseeable
ii) Alteration—Employer removes safety devices to increase efficiency
iii) Assumption of the risk— Where P has used the product with knowledge of the risk

70
Q

How is Product Liability on Negligence Theory analyzed?

A

a) Any foreseeable P can bring an action
b) Analyze the conduct of each D and ask whether D acted reasonably (This is different from strict
products liability, which focuses on the product—not the actions of D)
c) Res ipsa loquitur takes the place of manufacturing defect in negligence theory (e.g., toe intobacco)
d) All negligence defenses apply

71
Q

what are the 2 types of warranties under which a product liability on warranty theory claim can be brought?

A

a) Express Warranty: Where D makes a specific representation as to the quality/nature of the
product which becomes a basis of the bargain
-Any seller can make this warranty (manufacturer, distributor, seller)
-Can occur via advertising, during negotiations, or as a contract provision

b) Implied Warranty / Warranty of Merchantability: Where a merchant deals in goods of a particular
kind, the sale of such goods constitutes an implied warranty that those goods will be merchantable -
i.e., the goods are of average quality for goods of that kind and are generally fit for the purpose of
which such goods are normally used
-Warranty of merchantability = Fit for intended use
(1) Requires privity and notice
(2) Can be disclaimed by contract

c) Where harm is to the product itself, the only claim P can pursue is for warranty

72
Q

What is a public nuisance?

A

An unreasonable interference with a right common to the general public (e.g., health, safety, and morals of community)
-Typically brought by a governmental actor, such as the Attorney General

73
Q

What is a private nuisance?

A

A thing, or activity, that substantially and unreasonably interferes with P’s use and enjoyment of P’s land

74
Q

What are the 5 factors for balancing whether a nuisance is a substantial/unreasonable interference? What is the remedy if a nuisance is found to be substantial/unreasonable?

A

5 factors for balancing substantial/unreasonable interference:

i) Value of D’s activity;
ii) Whether there are alternatives;
iii) Nature of locality;
iv) Extent of P’s injury; and
v) Who was there first? (Used to be a defense, now just a factor)

Remedy = Injunction (equitable relief) – P must persuade a judge that:

i) P is suffering, or will suffer, irreparable harm + damages are an inadequate remedy
ii) Judge will then do balancing test

75
Q

What must P establish in a defamation claim?

A

P must establish that D published defamatory material concerning P that caused reputational harm

Defamatory Message = Subjects P to scorn, ridicule, or deters others from dealing with P, causing reputational harm (Ex: accusing of heinous crime)
-Must be one that can be believed as truthful and reputation harming (hyperbole and opinions are not defamatory)

Publication = Someone other than P read, saw, or heard the defamation
-P must show that D either intentionally published the information or was negligent in publishing
the information
-Republication Rule – In addition to D, who originates the defamatory message, other persons who repeat the defamatory message are potentially liable as well

76
Q

What are the types of slander and their definitions?

A

i) Libel = Defamatory message embodied in any relative permanent form (usually written) – Reputational harm
is presumed, but the damages have to be proven

ii) Slander = Defamation in spoken form, rather than written form – To recover, P must prove special damages (specific economic losses that flow from the slander). P can also receive reputation damages

77
Q

What are the categories of slander per se?

A

(a) Slander which imputes to P behavior or characteristics that are incompatible with the
proper conduct of P’s business, profession, or office;
(b) Slander that imputes to P commission of a crime involving moral turpitude or infamous punishment (prison/death);
(c) Allegations P has some loathsome disease; and
(d) Falsely imputing lack of chastity to a woman

78
Q

What are the common law privileges to defamation?

A

1) truth - P must prove falsity as part of P’s prima facie case (Exception: P is a private, not public figure, and the matter is a private concern)
2) absolute privilege
3) qualified/conditional privilege

79
Q

What are the contexts for absolute privilege to a defamation claim?

A

(a) Communications between spouses;
(b) Statements made on the floor of the legislature;
(c) Between high ranking executive officials; and
(d) Made in conduct of judicial proceedings

Privilege ends if someone repeats in a non-privileged situation

80
Q

Under what conditions is D is qualifiedly immune from liability for defamatory messages (among others)? And how may D lose that privilege?

A

(a) Comments are made in a communication that appears reasonably necessary to protect, or advance, D’s own legitimate interests;
(b) Comments were communicated on a matter of interest to the recipient of the communication, or a third person; and
(c) Comments were communicated concerning a matter of public interest to an individual empowered to protect that interest

Will lose privilege if:

(a) D has bad intent, acts out of malice, or is reckless as to the statement’s truth/falsity
(b) D does not believe the truth of the defamatory communication

81
Q

If defamation is related to capacity as a public official or public figure, what must P prove?

A

P must prove actual malice by clear and convincing evidence –> D knew it was false or recklessly disregarded the truth or falsity

82
Q

If P in a defamation case is a private figure, what must they show if the subject matter of the defamation is of public concern?

A

D must be shown to have exhibited some degree of fault higher than strict liability, which presumably means
negligence
(1) To be awarded presumed or punitive damages, actual malice is required

83
Q

If P in a defamation case is a private figure, what must they show if the subject matter of the defamation is of private concern?

A

P does not have to prove actual malice to get presumed or punitive damages
(NOTE: - not settled; not tested)

84
Q

What is intrusion into seclusion?

A

D unreasonably intrudes into P’s seclusion (zone of privacy)

i) Intrusion must be highly objectionable to a reasonable person (e.g., wiretapping, stalking)
ii) Damages include compensatory damages (e.g., mental distress) and if bad enough, punitive damages

85
Q

What is Commercial Appropriation of Likeness or Identity?

A

Unauthorized use of P’s name, voice, or likeness for D’s commercial advantage. Newsworthy purpose of P’s likeness, or identity, is exempt

86
Q

What must a P prove for the tort of Public Disclosure of Private True Facts?

A

i) P must prove: Disclosure of private facts that is highly offensive to a reasonable person and is not newsworthy
ii) Look for passage of time – 20 years pass, less relevant
iii) Need some sort of publication/dissemination of information
iv) Injunction is possible because the information is true (unlike defamation)
v) If D gets information from public records, D cannot be liable for sharing that information

87
Q

What must P show for Portrayal in False Light?

A

i) Publication + divulging of false information that is highly offensive to a reasonable person +
some level of fault (parallel to defamation rules – actual malice, etc.)

D publishes matters portraying P in a false light—i.e., attributing to P views P does not hold or attributing actions to P that P did not take.

88
Q

What is Malicious Prosecution?

A

Criminal proceedings instituted by D for an improper purpose and without probable cause, that terminate favorably for P and cause P damages (P must prevail on the merits)

89
Q

What are the elements of intentional misrepresentation?

A

(1) Intentional material misrepresentation by D;
(2) Of past or present fact;
(3) Made with knowledge; and
(4) On which P justifiably relies to P’s economic detriment

Mental State (key) - D must intend P (or class of persons which P belongs) to rely (act or fail to act in reliance on D’s misrepresentation)
(1) Scienter present when D knew statement was false or was reckless as to veracity
90
Q

In an intentional misrepresentation claim, misrepresentation can be a false, affirmative assertion of fact (engine is new) or an active concealment (roll back odometer) Failure to disclose is not enough unless:

A

(1) There is a fiduciary relationship;
(2) There is an ambiguous or misleading statement that causes reliance;
(3) D makes an assertion, believing it is true, but then discovers it was false (or circumstances changed) and fails to disclose;
(4) D makes a false assertion not intending reliance but discovers P relied; or
(5) P reasonably expects there would be disclosure

91
Q

Generally, D has no duty to avoid negligent infliction of pure economic loss. The exceptions (where P can bring a negligent representation claim) are:

A

1) When there is a special relationship, like a fiduciary duty, or 2) if D knows that they are acting for the benefit of a third party, and the 3rd party relies and suffers economic loss

Ex: Lawyer prepares a contract for Client and drafts it negligently, causing Client to lose $1M. Client sues for malpractice—Lawyer cannot avoid liability because it’s purely an economic loss. There is a fiduciary duty.

Ex: Lawyer drafts will for Client. Non-parties can only recover, if the will was negligently drafted leading to economic loss for the intended beneficiary.

92
Q

P can prevail in a claim for Prospective Economic Advantage only by showing that D:

A

i) Knew of prospective economic advantage; and
ii) Acted to interfere with it for improper motives
- D can act to protect own competitive interest

93
Q

In an Injurious Falsehood claim, P must prove:

A

i) False statement;
ii) Actual malice, or D knew statement was false or recklessly disregarded veracity;
iii) Made to another or published;
iv) Causing specific economic injury to P;
NOTE: Not about reputational harm but about economic loss

94
Q

Employee vs. IC status (for the purpose of determining employer liability) depends on:

A

whether the employer dictates the means, method, and
manner of the work. The more control exercised, the more likely the person is an employee and not an independent contractor

95
Q

Parents are not generally vicariously liable for the torts committed by their child, absent a statute saying otherwise. Parents can be liable for:

A

their own negligence, negligent supervision, or entrustment

96
Q

What are Wrongful Death Statutes?

A

All jurisdictions statutorily provide for an action by which either heirs of a deceased victim, or the personal representative of the victim’s estate, may bring an action for wrongful death for their own losses resulting from the victim’s death (e.g., wages the victim might have earned over their lifetime, damages such as the victim’s medical expenses)

96
Q

What are Wrongful Death Statutes?

A

All jurisdictions statutorily provide for an action by which either heirs of a deceased victim, or the personal representative of the victim’s estate, may bring an action for wrongful death for their own losses resulting from the victim’s death (e.g., wages the victim might have earned over their lifetime, damages such as the victim’s medical expenses)

97
Q

What is loss of Consortium?

A

Where a spouse is killed, the surviving spouse may bring a claim for intangible injuries of loss, comfort, companionship, etc