Torts Flashcards

Question

Does P actually have to be damaged to sue for IIED?

Answer 1

Yes - has to be actual not nominal damages (the more outrageous the conduct the less emphasis on proving harm/damages) Must be ACTUAL SEVERE emotional distress (no physical symptoms required but they help) IIED is the only intentional tort that requires proving damages

Answer 2

If D's conduct is directed at a 3rd party and P (bystander) suffers severe emotional distress P can recover by showing the prima facie case of emotional distress OR prove all of (1) that they were present when the injury incurred (2) the distress resulted in bodily harm or the plaintiff is a close relative of the third person (3) D knew of the above

Answer 3

1) Physical invasion 2) of the plaintiff's real property 3) intent to enter the land (but not intent to trespass) 4) causation

Answer 4

Must be tangible - can be a person or an object thrown onto land Intangibles like vibrations and odors might be nuisance but are not trespass

Answer 5

It is the person with possession of the land that has the right to sue for trespass (so the T not the LL)

Answer 6

D only needs to intend to enter the land - does not need to know that the land belonged to someone else. Operating a soap factory with knowledge with substantial certainty that soap flakes will drift onto neighbor's property is good enough

Answer 7

No - invasions under the surface or in the air (out to a reasonable distance) are also considered trespass to land

Answer 8

No - no need to actually show injury to the land

Answer 9

1) D interferes with P's right to possess a chattel 2) intent to do the act of interference (but not intent to wrongfully interfere; mistakenly taking something supports liability) 3) causation

Answer 10

1) Could be damaging the chattel | 2) could be dispossessing P of the chattel

Answer 11

D only needs to intend to do the thing that causes the interference *Mistaken belief that they own the chattel is no defense

Answer 12

Yes - must prove damage to the chattel or some other damage caused by the dispossession

Answer 13

1) D interferes with P's right to possess a chattel 2) interference is so severe that D should pay the chattel's full value 3) intent and causation

Answer 14

1) theft 2) wrongful transfer/detention 3) substantially altering/damaging/misusing the chattel Look for duration and intensity of the interference to move something from trespass to chattel to conversion

Answer 15

D only needs to intend to do the thing that causes the interference * No requirement to deprive the owner is required * *Mistaken belief that they own the chattel is no defense

Answer 16

Only if tangible (reduced to physical form - e.g. a promissory note)

Answer 17

Can recover damages (FMV at time of conversion) or can get the property back (replevin) If successfully sue for conversion but owner still has some remnant of the original property, the one who converts gets to keep the remnant

Answer 18

1) Consent 2) Defense of self/others/property 3) Public/Private Necessity

Answer 19

1) Can't consent to a criminal act | 2) P must have capacity

Answer 20

1) Was there valid consent? 2) Did D stay within the scope of the consent? --------------- Must be informed of material facts (facts that a reasonable person would want to know)

Answer 21

If no capacity -> no valid consent (drunk people young children) If limited capacity -> Can consent to things within their understanding (mild mental disability older children)

Answer 22

Everyone has the capacity to commit a tort | But not everyone has capacity to consent to have tort committed upon them

Answer 23

1) D knows P's consent was mistaken and took advantage of it 2) D induced consent by fraud on an essential matter (but consent valid of fraud on a collateral matter) 3) consent obtained by duress (unless the threat was only a future or future economic threat)

Answer 24

A reasonable person would infer consent from custom/usage or P's conduct (e.g. getting in the boxing ring or a new york subway)

Answer 25

When action is necessary to save a person's life or some other important interest in their person or property

Answer 26

1) Does the defense apply (only applies to prevent a tort - already committed ones don't apply) 2) Is a mistake permitted as to whether the tort being defended against is actually being committed? 3) Was proper force used?

Answer 27

The threat/harm has to be coming from the Plaintiff (unless bystander case) to be able to assert self defense against them.

Answer 28

When a person reasonably believes that they are being or are immediately about to be attacked they can respond with reasonably necessary force

Answer 29

No but minority view imposes a duty to retreat before suing deadly force (unless inside the home)

Answer 30

Self defense is not available to the initial aggressor unless the other party responds to nondeadly force with deadly force

Answer 31

D is only liable to the third party if D deliberately injured the third party in an attempt to protect themselves

Answer 32

Yes as long as the mistake is reasonable

Answer 33

Only the force that appears necessary to prevent the harm (including deadly force)

Answer 34

D can use reasonable force to defend V to the same extent they reasonably believe V could use force to defend themselves

Answer 35

Yes - reasonable mistake as to if V was entitled to defend themselves is allowed

Answer 36

IF first verbally request to desist (unless clear it would be futile or dangerous) THEN can use reasonable force to prevent the commission of a tort against their real or personal property

Answer 37

D cannot invoke the defense for actions taken after the tort has already been committed against them but D can use reasonable force in hot pursuit of another who has converted D's property b/c tort is ongoing

Answer 38

necessity recapture of chattels etc.

Answer 39

Generally Yes BUT mistake is not allowed if the person has a privilege (like necessity or recapture of chattels) unless the person causes D to reasonably believe the action is not privileged (e.g. won't disclose the necessity)

Answer 40

Reasonable force but never force that causes death or serious bodily harm unless it's a trespass that also poses a threat of serious bodily harm. This means no traps, spring guns, vicious dogs to protect only property (can't use force indirectly that you can't use directly) Also can't leave the electric current on to prevent people from stealing your transformers. Doesn't matter if thief or trespasser or whatever

Answer 41

If a shopkeeper/security guard of a shop reasonably believes there was a theft, they can use reasonable force (probaby need to verbally request first) to stop the suspect and detain them for a reasonable time to investigate (probably <30 min)

Answer 42

At common law yes | Modern law no (use summary action for ejectment - can't use self help)

Answer 43

Can only retake by peaceful means unless in hot pursuit then can use reasonable force

Answer 44

Can commit an intentional tort against another's PROPERTY when: 1) it is reasonably and apparently necessary to do so 2) in an emergency (harm imminent) 3) to avoid injury that is substantially more serious than the harm caused The party claiming necessity cannot have created the choice between evils, but this seems to be narrowly construed on the bar exam - more likely a red herring when you see a "reasonableness" answer

Answer 45

Public necessity [absolute defense] is when D acts to avert a public disaster (D does not act out of self interest/preservation - saving a bus full of kids is not public necessity) Private necessity [limited defense] is when D acts to prevent harm to a limited number of people probably including himself. D must pay compensatory damages for any injury they caused unless the act was to benefit the owner of the property. D does not have to pay nominal or punitive damages.

Answer 46

No. The trespasser has a legal right to be there for the duration of the emergency because of necessity. If homeowner throws them out and they do get hurt homeowner could be liable.

Answer 47

Duty (Law) Breach (Facts) Causation (logic/policy) Damages (Facts and law)

Answer 48

1) to whom do I owe the duty | 2) What is the duty owed?

Answer 49

D owes a duty to not create any unreasonable risk of harm to foreseeable victims

Answer 50

Those victims in the "zone of danger" - Unforeseeable victims will never win

Answer 51

A rescuer is a foreseeable victim when D negligently put themselves or a 3rd party in danger ("danger invites rescue") But firefighters and police officers cannot recover under this theory because the dangers of rescue are inherent in their jobs

Answer 52

There is a duty owed to a viable fetus If there is failure to perform a contraceptive procedure the child cannot recover for wrongful life but parents can recover for wrongful birth (medical expenses and pain during labor but not child rearing)

Answer 53

A third party who is an intended economic beneficiary of a deal is a foreseeable victim

Answer 54

The reasonably prudent person standard applies unless displaced by some alternative standard

Answer 55

Reasonable person is an objective standard but tailored to the similar circumstances - D's stupidity or inexperience are not taken into account - this is the classic jury question

Answer 56

Standard of care is not adjusted downwards for informed drunk stupid amateur or even mentally handicapped defendants Standard of care is adjusted upwards for those with superior knowledge or experience even if they are not in a professional setting. e.g. race car driver has to drive his passenger car to a higher standard e.g. engineer who knew of a better system but failed to implement it

Answer 57

It is altered if those physical characteristics are relevant to the claim (BUT people are expected to know their physical limitations and act accordingly - blind person can't drive a car)

Answer 58

5-18 children are held to the standard of a child of like age intelligence and experience acting under similar circumstances - SUBJECTIVE test (it's different for every child - this is defendant friendly). <5 cannot be negligent Exception: Children engaged in potentially dangerous adult activates (driving a motorized vehicle) may be required to conform to an adult standard of care

Answer 59

Professional is required to possess the knowledge and skill of an average member of the profession in good standing providing similar services - Swaps "average" for "reasonable" so it's an empirical comparison is to real world peers. DON'T SAY REASONABLE ON AN ESSAY - SAY AVERAGE Doctors apply a national standard

Answer 60

In a professional negligence case standard practice IS the duty In ordinary negligence cases standard practice is persuasive but the jury can disregard it (maybe the whole industry is negligent)

Answer 61

Must disclose all risks that are serious enough that a reasonable person would have withheld consent if they learned of the risk - otherwise there is no informed consent

Answer 62

Depends on the status of the plaintiff on the land (unknown trespasser known trespasser licensee or invitee)

Answer 63

Unknown trespasser = someone who comes on the land without permission and without the possessor's knowledge No Duty

Answer 64

Known trespasser = discovered or anticipated trespassers (usually history of trespassing) The possessor must warn OR make safe any conditions that are ALL OF: - Concealed/nonobvious - Artificial (manmade) - Involve a risk of death or serious bodily harm - Known to the possessor of land in advance (no duty to inspect or repair) (known manmade death traps)

Answer 65

One who enters onto the land with the possessor's permission (express/implied) and do not confer any financial benefit on the possessor. Social guests and solicitors are licensees Duty to warn OR make safe any conditions that are BOTH: - Concealed/nonobvious - Known to the possessor of land in advance (no duty to inspect or repair) (all known traps)

Answer 66

No duty of care regarding risks that are inherent in their jobs. One of the inherent risks is that the property was negligently maintained.

Answer 67

Someone who enters land with permission and provide possessor with a financial benefit (customers govt health inspector to renew a restaurant's license). Really for any purpose connected with the business. Under modern rule anyone who enters a location open to the public at large is an invitee even if no financial benefit. Duty to warn OR make safe any conditions that are BOTH: - Concealed/nonobvious - Known to the land possessor in advance or could have been discovered on reasonable inspection (all reasonably knowable traps)

Answer 68

They are not longer invitees and at best becomes a licensee and maybe some kind of trespasser.

Answer 69

UT:No Duty KT: Known artificial nonobvious serious injury L: Known nonobvious I: Reasonably knowable nonobvious

Answer 70

No - the status of the entrant still determines the duty owed under the same 4 tiers

Answer 71

Duty of reasonable prudence with regard to artificial conditions to trespassing children. P must show 1) owner knew or should have known that children would be reasonably likely to trespass (kid magnet or otherwise) 2) dangerous artificial condition the owner knew or should have known of 3) condition is likely to cause injury and is dangerous because children will not appreciate the risk 4) expense of remedying the situation is slight compared with the risk of harm The jury

Answer 72

Invitee. Just have to enter with some purpose connected with the store's business (e.g. to browse or return an item)

Answer 73

No - this is not sufficiently obvious

Answer 74

When there is a hazardous condition If the hazard is an activity being conducted on the land then it follows the "active operations" rules and there is a duty of reasonable care to everyone except undiscovered trespassers.

Answer 75

A duty of reasonable care is owed to discovered/anticipated trespassers licensees and invitees (everyone but undiscovered trespassers)

Answer 76

There is no duty to inspect for a licensee but there is a duty to inspect for an invitee.

Answer 77

Landowner not liable unless willfully and maliciously failed to guard against or warn of a dangerous condition or activity

Answer 78

Must conduct ACTIVITIES on the land to avoid unreasonable risk of harm to those off the land. If NATURAL condition on the land -> no duty If ARTIFICIAL condition on the land -> duty to protect from unreasonably dangerous artificial conditions or structures abutting adjacent land

Answer 79

The lessee

Answer 80

Must warn of defects they knew or should have known of IF the tenant is not likely to discover them on reasonable inspection Covenant to repair makes them liable for unreasonably dangerous conditions

Answer 81

The landlord and the tenant. | The possessor is always on the first one on the hook for premises liability.

Answer 82

Seller must disclose latent unreasonably dangerous defects that vendor knows of or has reason to know of and which the buyer won't discover on reasonable inspection.

Answer 83

If there is: - a clear duty specified in a criminal statute - P is within the protected class (class of person) - statute was designed to prevent the type of harm suffered by P (class of risk) then the circumstances don't matter

Answer 84

It borrows a duty from a criminal statute and uses it to replace the reasonable person standard. So if negligence per se applies reasonableness no longer matters what matters is if the statute is violated (and the criminal statute could have a strict liability mens rea)

Answer 85

1) Must convince the judge as a matter of law that the criminal statute should replace the reasonable person standard of care (Legal step) 2) Must convince the jury that the defendant violated the statutory standard of care (factual step)

Answer 86

Litigates under the reasonably prudent person under he circumstances test - there is no disadvantage to trying and failing to invoke negligence per se

Answer 87

If compliance would cause more danger than violation OR compliance is out of the defendant's control or impossible If one of these applies then you litigate under the reasonable person standard of care.

Answer 88

Violation satisfies the first two requirements: Duty and Beach Compliance will not establish that due care has been taken

Answer 89

No but if you choose to do so you must act like a reasonably prudent person

Answer 90

Generally no duty to rescue but exceptions include: 1) special relationship between parties (parent-child common carrier innkeeper-guest shopkeeper employer-employee family members) 2) D creates P's peril (regardless if negligent or innocent) 3) if D undertakes to rescue must do so with reasonable care 4) Professional rescuer (firefighter, police) Even under the exceptions there is no duty to rescue - this is just a duty to act reasonably under the circumstances. It is never required that you put your own life in jeopardy

Answer 91

If someone undertakes a duty by coming to someone's rescue they are ordinarily liable for negligence in their rescue Good Samaritan statutes eliminate liability for ordinary (but not gross) negligence by licensed medical professionals gratuitously rendering their services. Assume there is no good Samaritan statute unless the question states otherwise

Answer 92

No but exceptions include: 1) places of public accommodation have a duty to prevent injury to guests caused by third parties 2) If one has actual ability and control over another's actions and knows/should know that the person is likely to do something that would require them to control their actions

Answer 93

Held to a very high degree of care to PASSENGERS AND GUESTS. Liable for very slight negligence. But remember P must be a passenger or guest

Answer 94

Owed duty of ordinary care But some states have "guest statutes" that make the driver liable to nonpaying passengers only for reckless torts

Answer 95

Bailor transfers possession of something to bailee. The transfer could be to benefit the bailor or the bailee.

Answer 96

Depends on who benefits from the bailment. If only bailor benefits -> low standard of care If only bailee benefits -> high standard of care If mutual benefit -> ordinary standard of care

Answer 97

Depends on who benefits from the bailment. If bailment for hire -> bailor must inform bailee of defects that they know or should know about the property If only bailee benefits -> must inform bailee of known dangerous defects in the property

Answer 98

Must act as a reasonably prudent person under similar emergency circumstances BUT the emergency is not considered if D created the emergency

Answer 99

1) Near Miss case 2) Bystander Case 3) Special relationship case

Answer 100

D IS NEGLIGENT AND creates a foreseeable risk of physical injury to P and - P is in the "zone of danger" (high risk of physical harm) - [majority view] P suffers physical symptoms from the distress (minority view does not require physical symptoms)

Answer 101

A bystander case when P (the bystander) is outside of the zone of danger and sees D negligently injure another. P (bystander) can recover IF: - P and person physically injured are closely related (parent/minor child/spouse) - P was present at the scene and personally observed/perceived the event (No physical symptoms required)

Answer 102

If P and D are in a special (usually commercial) relationship where it is highly foreseeable that D's negligence will cause emotional distress (e.g. negligent misdiagnosis of terminal illness negligent cremation) (No physical symptoms required)

Answer 103

There is no direct physical injury. If there was direct physical injury then it would be a regular negligence case and emotional distress could be tacked onto the physical injury.

Answer 104

D's conduct must fall short of the level required by the applicable standard of care. This is a fact question for the jury.

Answer 105

No - D did not breach his duty because he had no history of heart problems.

Answer 106

Customary practice (if reasonable person standard of care; custom is not conclusive because everyone might be acting negligently) Feasibility of Precautions Negligence per se (this is conclusive) Res Ipsa Loquitur (not conclusive)

Answer 107

Breach is established if: - the accident causing the injury is normally product of negligence - this type of accident usually results from the negligence of someone in D's position (often shown by exclusive control over the thing that caused the injury) ----------- Res ipsa is only the issue of there is uncertainly about how the breach occurred, who breached, or when the breach occurred

Answer 108

Not necessarily. P has made a prima facie case and thus cannot lose on directed verdict but can still lose if the jury doesn't buy the inference of negligence (i.e. accident occurred->negligence somewhere->negligent D). Res ipsa does NOT shift the burden of proof and does NOT create a presumption of negligence Also P cannot win on directed verdict because there is still a factual question on breach with res ipsa

Answer 109

When P has established negligence per se and there are no issues of proximate cause. (Rare) ---------- P has to prove duty and breach

Answer 110

Negligence per se conclusively establishes duty and breach (must still prove causation and damages) Res ipsa may establish breach if the jury agrees with the inference of negligence

Answer 111

The defendant's negligent conduct caused the injury. | Must be cause in fact and proximate cause

Answer 112

But for test applies when several acts (each of which alone would not cause the injury) combine to cause an injury An act/omission is a factual cause when the injury would not have occurred "but for" the act or omission. Imagine an alternative universe where D was not negligent - in this world would P still have been injured? (there are an infinite number of but for causes)

Answer 113

Starts with "Even if" | EVEN IF D hadn't been negligent would P still have been injured?

Answer 114

The substantial factor test applies when 2 defendants and "multiple sufficient causes" or "merged causes" exist (each cause alone would cause the injury). The defendant's conduct is a cause in fact if it was a substantial factor in causing the injury. If a breach would have been able to cause the harm all by itself it's definitely a substantial factor but beyond that the doctrine is unclear

Answer 115

Joint and several liability. Can sue either or both and collect all or part from either.

Answer 116

Unascertainable causes approach applies when 2 defendants and 2 acts BOTH of which were negligent but only one of which actually causes the injury but it is not known which one. (remember >1 act must be negligent for this - casserole question) The burden of proof shifts to the defendants and each must show that their negligent conduct is not the actual cause. Joint and several liability among the defendants who cannot meet this burden.

Answer 117

A defendant is generally liable for all the foreseeable harms. If a particular harmful result was foreseeable, an unusual manner or timing of how the injury was caused does not make a difference. The purpose is to ensure it is fair to make the defendant pay (usually satisfied)

Answer 118

The jury so if there is any question of proximate cause summary judgment should be denied

Answer 119

Defendant's negligence is a proximate cause if the outcome was one of the foreseeable risks associated with the breach. Pause at the moment of the breach and ask what kind of injuries you're worried about.

Answer 120

If D's conduct increased the risk of harm from an intervening force OR the intervening force was foreseeable the conduct is a proximate cause. Intervening causes occur only after D's negligent act

Answer 121

Natural reactions to the situation created by D's conduct 1) Medical malpractice 2) Negligence of rescuers 3) Efforts taken to protect person or property in response to D's conduct 4) Disease or accident following from the original injury (e.g. break guys leg guy trips while on crutches and breaks his arm) OR If D's conduct increased the risk of: - negligence of a third party - crimes and intentional torts of third parties - acts of God

Answer 122

A superseding force is an intervening force that creates a harm that is not within the risk increased by D's conduct. Superseding forces break the causal chain and defeat proximate cause

Answer 123

No - P has to prove damages

Answer 124

The rule that a negligent defendant takes the plaintiff as they are with all of their preexisting conditions and delicacies. NOT LIMITED TO NEGLIGENCE - applies to all torts.

Answer 125

Yes can recover medical expenses lost wages etc. (economic) and damages for pain and suffering including emotional distress (noneconomic) P does have a duty to mitigate damages (e.g. by seeking appropriate medical treatment)

Answer 126

Can recover cost of repair or FMV of property at time of accident (economic) Can NOT recover emotional distress resulting from negligently caused property damages including killing a pet P does have a duty to mitigate damages (e.g. by replacing the property promptly)

Answer 127

P may recover punitive damages if D's conduct is "wanton and willful" reckless or malicious

Answer 128

1) pre-judgment interest from the date of damage in a personal injury action 2) attorney's fees

Answer 129

Yes - the "Collateral Source Rule" says that damages are not reduced just because P received benefits from other sources

Answer 130

Negligence by P tat contributes to the P's injuries Contributory negligence is judged on the same standard as ordinary negligence (so a the standard of care for a rescuer is adjusted for the circumstances requiring the rescue and P's violation of a statute can be use to help establish contributory negligence)

Answer 131

Contributory negligence is a defense UNLESS the statute was meant to protect this class of plaintiff from their own negligence (e.g. speeding in a school zone and child darting into the street)

Answer 132

If Defendant is wanton or reckless in a contributory negligence regime P's negligence is not a defense BUT if D is wanton or reckless in a comparative negligence regime. P's negligence IS a defense

Answer 133

Common law says that if P is at all contributorily negligent then P has no right to recover

Answer 134

It is a rule that allows P to recover despite being contributorily negligent if the person with the last clear chance to avoid an accident negligently fails to do so. Last Clear Chance NEVER applies in comparative negligence jurisdictions

Answer 135

Only when a court could find P vicariously liable for the third party's negligence (e.g. employer-employee partner joint venturers - NOT parent-child spouses car owner/driver)

Answer 136

P must have KNOWN* the risk and VOLUNTARILY proceeded in the face of the risk *knowledge can be implied where the risk is one that an average person would clearly appreciate

Answer 137

Express assumption of risk = a complete defense Implied assumption of risk = probably a limitation on duty owed to P (e.g. D has no duty to prevent P from being hit by a foul ball at a baseball game)

Answer 138

P cannot be said to voluntarily assume the risk when P has no alternative but to accept it P also cannot be said to voluntarily assume the risk in cases of fraud force emergency

Answer 139

``` Users of common carriers and public utilities Members of a class protected by statute ``` But P can assume the risk of harm from an inherently dangerous activity (and allow D to dodge liability)

Answer 140

No - assumption of risk is NEVER a defense to an intentional tort

Answer 141

Comparative negligence is the modern majority rule Contributory negligence is the old outdated rule

Answer 142

The TRIER OF FACT IN THEIR DISCRETION weighs P's negligence and D's negligence and assigns % fault. ------------ Yes, subject to partial comparative negligence limitations. Just because a party is willfully/wantonly negligent does not preclude recovery entirely.

Answer 143

Partial comparative negligence [Majority] = bars P's recovery if their negligence is >50% at fault compared to the negligence of ALL defendants. If D counterclaims they can recover their damages reduced by the % of THEIR fault (not the aggregate fault of all Ds) as long as their negligence is less than 50%. Pure comparative negligence [Minority] = P can recover regardless what % at fault they are but their recovery is reduced by their % fault ---------- Assume pure comparative negligence applies unless the question states otherwise

Answer 144

No unless the owner has knowledge of that animal's dangerous propensity that is not common to the species (if abnormally dangerous then strict liability) injuries caused by normally dangerous characteristics of domestic animals (e.g. bulls bees) does not create strict liability (but remember vicious watch dogs can create intentional tort liability)

Answer 145

Yes - owner is strictly liable for reasonably foreseeable damage of a trespassing animal. If the trespass is not foreseeable, then not liable

Answer 146

Yes - owner is strictly liable for injuries to licensees and invitees but owner must be negligent to be liable or injuries to trespassers. Injuries caused by those fleeing from the animal are part of the dangerous propensity of the animal. No - commonality in the community is only a factor in abnormally dangerous activities

Answer 147

Same standard as the owner of a wild animal - strict liability to licensees and invitees - liable on a negligence standard to trespassers

Answer 148

1) The activity can't be made safe even if due care exercised AND 2) The activity is uncommon in the community where it is conducted The court decides

Answer 149

Strict liability BUT the plaintiff must be foreseeable and the harm must result from the kind of danger that makes the activity dangerous (including harm caused by those fleeing from the perceived danger) The same causation rules that apply to negligence also apply to strict liability (e.g. superseding forces cut off liability)

Answer 150

1) Explosives 2) Dangerous chemicals/biological agents 3) nuclear energy/high dose radiation

Answer 151

1) Intent 2) Negligence 3) Implied warranty of merchantability or fitness for a particular purpose 4) Representation theories (express warranty or misrepresentation) 5) Strict liability Beware that a plaintiff may have more than one cause of action - read the question and do not assume strict liability Only foreseeable plaintiffs can sue - so this includes more than just the buyer and less than everyone

Answer 152

1) Defendant is a MERCHANT (commercial supplier of the product) 2) Product is DEFECTIVE 3) Product was NOT SUBSTANTIALLY ALTERED since leaving D's control 4) P was making a FORESEEABLE USE of the product at the time of injury

Answer 153

1) casual seller (especially a seller of used goods) | 2) Service providers providing products incidentally to the service

Answer 154

No even when the product is provided incident to a service there is no strict liability (e.g. blood in an operation) - but P can sue for negligence

Answer 155

Yes (e.g. rental car company)

Answer 156

NO - customers, bystanders, users (foreseeable plaintiffs) can sue manufacturers wholesalers and retailers

Answer 157

1) Manufacturing defects 2) Design defects 3) Noncompliance with Government safety Standards 4) Information/Warning defects

Answer 158

A manufacturing defect can exist even if P misused the product because the defendant must be able to anticipate reasonable misuse

Answer 159

If the product is made differently from those that were made properly and is more dangerous than an ordinary customer would expect.

Answer 160

P must be able to prove there was a "feasible alternative" where D could have made the product safer without serious impact on the product's utility or price Manufacturers will not be held liable for some dangerous products if the danger is apparent and there is no safer way to make the product. Simply putting a warning label on a defectively designed product is not good enough

Answer 161

No - product can comply with government safety standards and still be defective

Answer 162

Manufacturer failed to give ADEQUATE instructions or warnings as to the risks involved where those risks may not be apparent to users. Not all warnings are adequate - warnings should be prominent understandable might need to provide information about how to mitigate the risk

Answer 163

Sufficient warnings given to "learned intermediaries" (like the prescribing doctor) will be sufficient instead of warning the patient

Answer 164

There is a presumption that if the product moved in ordinary channels of distribution it has not been substantially altered P can rely on an inference that such a product failure ordinarily would occur only as a result of a defect (similar to res ipsa but not)

Answer 165

Yes - P does have to prove proximate cause Personal injury and property damage. Economic loss alone is not sufficient for recovery

Answer 166

Nothing. Disclaimers are irrelevant in strict liability cases if personal injury or property damage result

Answer 167

Foreseeable uses are not always intended/appropriate uses (e.g. eating cookie dough standing on a chair)

Answer 168

Should sue manufacturer because retailer and wholesaler can usually satisfy their duty through cursory inspection of the good In contrast, strict liability products cases can succeed against wholesalers and retailers even if they had no opportunity to inspect

Answer 169

No - not unless the wholesaler or retailer's conduct exceeds ordinary foreseeable negligence

Answer 170

Any foreseeable plaintiff - no privity required

Answer 171

Physical injury property damage. No recovery for pure economic loss

Answer 172

Nothing - disclaimers are irrelevant in negligence products cases

Answer 173

Goods that are likely to injure users even when used properly

Answer 174

When the seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller's skill and judgment in selecting the goods

Answer 175

the buyer (or lessee) family household guests

Answer 176

NO - D could have acted perfectly responsibly and still be liable

Answer 177

Yes - actual and proximate cause must be satisfied

Answer 178

Personal injury property damage AND pure economic injury | ability to recover for pure economic injury is unique to breach of contractual warranties

Answer 179

1) assumption of risk (e.g. using a product while knowing of breach of warranty 2) contributory negligence 3) failure to give notice of breach under the UCC

Answer 180

Disclaimers are not effective as a defense to personal injury but are effective for pure economic loss

Answer 181

1) Express Warranty | 2) Misrepresentation of fact

Answer 182

A representation was made concerning goods that was part of the basis of the bargain. If someone other than the buyer sues they don't have to have relied on the express warranty as long as someone did Fault does not have to be shown

Answer 183

Same as for implied warranties

Answer 184

There was a statement of material fact concerning quality/uses of the goods The seller intended to induce reliance by the buyer in a particular transaction then liability is usually based on strict liability but can also be for intentional or negligent misrepresentations

Answer 185

Yes - if buyer is suing they must prove they relied on the misrep. If someone other than buyer is suing they must prove that someone relied on the misrep.

Answer 186

Same as for strict liability

Answer 187

if P knowingly encounters a dangerous situation P is barred from all recovery (applies in all strict liability cases wild animal products abnormally dangerous activities cases) This is an old rule - only apply it if the case says the state follows the traditional rule

Answer 188

Yes - but P must have known of the defect/danger and acted unreasonably in response to that knowledge

Answer 189

Substantial and unreasonable interference with a private individual's enjoyment of their land - The private individual must actually possess the land or have right to immediate possession - Ds intent (awareness establishes intent) or negligence is required

Answer 190

Must be offensive inconvenient or annoying to the AVERAGE person If the plaintiff is just hypersensitive the interference is not substantial

Answer 191

The severity of P's injury must be weighed against the utility of D's conduct. Court's balance interests looking at the location property values and alternative courses of conduct available to D

Answer 192

Private nuisance is a nonphysical invasion that interferes with use or enjoyment Trespass is a physical invasion that interferes with the owner's right to exclusive possession

Answer 193

An act that unreasonably interferes with the health safety or property rights of the community. - private parties can only recover if they suffer a harm that is unique from the damage suffered by the public at large

Answer 194

1) Usually damages 2) if damages are unavailable or inadequate injunctive relief can be granted (court will balance relative hardships unless D's conduct is willful)

Answer 195

1) legislative authority for nuisance activity (not an absolute defense but is persuasive) 2) No one actor is liable for all damage caused by the concurrence of their acts and others (e.g. I polluted the stream but so did 100 others. I can't be held liable for all of the damage)

Answer 196

Generally no - unless P bought the property for the specific purpose of bringing a harassing lawsuit

Answer 197

If the tort occurs in the scope of their employment ("respondeat superior")

Answer 198

If it is a minor detour yes | If the deviation from the scope of employment is substantial in time or geography (frolic) then no

Answer 199

Generally no but the exceptions are: 1) employee furthering the business of the employer 2) Force is authorized in the employment (e.g. bouncer) 3) friction/tension is generated by the employment (e.g. bill collector)

Answer 200

No - unless EITHER: - contractor is engaged in inherently dangerous activities OR - the duty is nondelegable for public policy reasons (e.g. contractor working on the business premises and hurts a customer - the duty to keep its premises safe for customers is non delegable)

Answer 201

Each partner is vicariously liable for the torts of other partners that were committed in the SCOPE AND COURSE of the partnership

Answer 202

Generally no but some states have changed this by statute under some circumstances such as… - Family Car Doctrine (owner liable for driving torts of family members that use the car with express/implied permission) - Permissive Use (owners liable for all drivers they permit to drive their car) this is all separate from the non-vicarious liability of negligent entrustment and absent an agency relationship (e.g. driver is running an errand for owner)

Answer 203

Generally no - but bailor can be liable for their own negligence in entrusting the bailed object

Answer 204

Generally no - but most states make parents vicariously liable for intentional torts of children up to a certain dollar amount This assumes that the child is not acting as agent for the parent Parents are more likely liable for their own direct negligence in allowing the child to do something (or if they know the child has a propensity to do something failing to supervise it)

Answer 205

At common law NO - regardless if the injuries were sustained by the patron or by a third person as a result of the patron's conduct

Answer 206

Yes - most states have Dramshop Acts which usually create a cause of action in favor of any third parties injured by the drunk patron. Dramshop acts operate through vicarious liability but some courts have found bars directly negligent under ordinary principles

Answer 207

Joint and Several Liability when two or more negligent acts combine to proximately cause an indivisible injury (both Ds joint and severally liable for it). When the injury is divisible each D liable only for their portion UNLESS they acted in concert then they are jointly and severally liable even if the injury is divisible

Answer 208

Some states have modified the common law rule such that there is no joint and several liability for… - those Ds judged to be less at fault than P or - all Ds regarding noneconomic damages

Answer 209

Satisfaction is recovery of full payment (until satisfaction can proceed against all jointly liable parties) Release is when P agrees not to pursue one D. A release of one D does not discharge other Ds unless it expressly says so

Answer 210

These doctrines determine how jointly liable defendants allocate damages between them

Answer 211

Allows a defendant who pays more than their share to P to recover from other jointly liable parties. 1) Comparative Contribution (Majority) : contribution imposed in proportion to relative fault 2) Equal shares (Minority): Equal shares regardless of relative fault

Answer 212

1) The party from whom contribution is sought must have been jointly liable to P. If the contribution defendant has a defense that would bar liability to the original P they cannot be liable for contribution 2) NOT available for intentional torts

Answer 213

When one D is fully reimbursed by another D Indemnification available: - in vicarious liability situations (vicariously liable party can seek indemnity from the tort feasor) - under strict products liability for the non-manufacturer (retailer seeks indemnity from manufacturer)

Answer 214

Comparative contribution supplants indemnification

Answer 215

Loss of consortium. It grants the spouse/parent a "derivative" cause of action against the same defendants (where these Ds can assert all the same defenses as they have to the original claim) for loss of consortium.

Answer 216

When P was injured (INTENTIONALLY OR NEGLIGENTLY) and P was married and P's spouse lost out on 1) household services 2) companionship or 3) sex

Answer 217

When a child (P) was injured (INTENTIONALLY OR NEGLIGENTLY) and P's parent loses out on 1) child's services 2) consortium BUT child does not have a COA for loss of consortium if parent is injured

Answer 218

Allow a COA to survive the death of P Apply to personal injury. Do not apply to torts invading intangible personal interests (defamation invasion of right of privacy malicious prosecution)

Answer 219

Grant recovery for financial injury to the spouse/next of kin instead of the estate so the decedent's creditors have no claim to it. Recovery allowed only to the extent the decedent would have recovered if they had lived.

Answer 220

1) Intra-family tort immunities 2) Governmental tort immunity 3) Charitable immunity

Answer 221

Old Rule: family members could not sue another in tort for personal injury Now: Spouses can usually sue each other Some states allow children to sue parents (but never for negligent supervision). But all states allow children to sue parents for intentional torts and in car accident cases to the extent of insurance coverage

Answer 222

Immunity exists only when the government performs governmental and not proprietary functions Under Federal Tort Claims Act USA has waived tort immunity for torts except for most intentional torts and discretionary acts involving political policy. States an most municipalities have done the same Public officials are immune from tort liability for discretionary acts done without malice/improper purpose

Answer 223

When a municipality has waived its immunity to tort liability a duty owed to the public at large is not owed to any individual absent a special relationship between government and citizen

Answer 224

Most jurisdictions have abolished it

Answer 225

DPDPD 1) Defamatory statement (falsity) 2) Published to a third party 3) Damage to p's reputation (need special (financial) damages unless slander per se or libel) 4) specifically identifies P (also consider type of P: public fig, private fig public concern, private fig private concern) 5) Defenses (truth/privilege)

Answer 226

A factual claim that adversely affects P's reputation. Name calling not good enough only if the opinion implies a basis in specific facts and if those facts were said directly they would be defamatory

Answer 227

P can plead additional facts as "inducement" to establish defamatory meaning by "innuendo"

Answer 228

A dead person cannot be defamed - person must be alive at the time the statement is made. A corp/partnership can be defamed if defamatory statements are made about its financial condition honesty etc.)

Answer 229

P must prove that a reasonable reader/listener/viewer would understand that the statement referred to P If the statement does not facially implicate P P can introduce extra information (pleading "colloquium") to establish that the statement applies to them.

Answer 230

If statement refers to all members of a small group-> each member satisfies the requirement by alleging that they are a member of the group If the statement refers to some members of a small group -> each member satisfies the requirement by alleging that a reasonable person would view the statement as referring to them If the statement refers to members of a large group -> the members of the group cannot satisfy the requirement

Answer 231

The defamation must be communicated to a THIRD PARTY that understands it. Can't harm reputation with a communication only from D to P but if one third party is looped in it's defamation Can be made intentionally or negligently (negligence to publish is what matters not negligence to defame) Usually each repetition is a separate publishing but most states have provided that if defamation is in newspaper etc. all copies are treated as one publication ("single publication" rule)

Answer 232

1) speaker 2) primary publishers (newspapers Tv stations etc.) to the same extent as the speaker 3) those who repeat the defamation (even if repeater states the source and says they don't believe it) 4) Secondary publishers that play audiofiles or sell newspapers are liable only if they know or should know of the defamatory content (ISP is never treated as a secondary publisher of a user's posts)

Answer 233

If Libel -> general damages (nonfinancial reputational) presumed If Slander -> P must prove "special damages" (some FINANCIAL loss) unless it's slander per se. But if P can prove special damages they can recover general damages also

Answer 234

Libel is defamation in permanent form (written/printed) including TV and radio. Any repetition of libel (oral or written) is also libel Slander is spoken defamation

Answer 235

LUMP 1) State that P has some loathsome disease 2) Statement/implication that P has engaged in serious sexual misconduct 3) Statement that P has committed a serious crime 4) Statement adversely reflects on Ps business or profession The effect is that there is no need to prove special damages as a prerequisite to general damages

Answer 236

``` Under common law: P did not have to prove falsity instead D could prove truth as a defense Modern View (and as required by the Constitution): P must prove falsity as part of their case ```

Answer 237

Public figure = achieving pervasive fame or notoriety OR by voluntarily assuming a central role in public controversy Limited Public Figure = private figures thrown into the public eye because of some newsworthy development (crime etc.) are considered public figures only if the statement relates to the reason they are in the public eye Must prove actual malice (knowledge of falsity or reckless disregard for falsity). This is a subjective test

Answer 238

Only if the alteration causes a material change in the meaning conveyed by the quote

Answer 239

P must prove that D was negligent in publishing the false statement Public concern is determined by content form and context Can only recover for "actual injury" (economic damage + damage to reputation and humiliation if those are supported by evidence) But if there is actual malice then damages are presumed and punitive damages are allowed.

Answer 240

Differences in the degree of fault required of D - Public figure plaintiff - must prove malice (knowledge of falsity or reckless disregard) - Private P Public concern - must prove negligence - Private P Private Concern - only need to prove publication

Answer 241

1) Consent (same rules as intentional torts apply) 2) Truth (in cases where P is not already obligated to prove falsity) 3) Privilege (can be absolute or qualified)

Answer 242

1) communications between spouses 2) statements during judicial proceedings by legislators during proceedings (even if not related to the proceedings) federal executive officials Absolute privilege is privilege that is never lost

Answer 243

When D proves there is a public interest in encouraging candor. Whether a particular speaker has privilege is determined case by case. (common situation is references/recommendations and the "common interest" privilege for statements made to colleagues in the same org) Privilege is lost if the statement is not in the scope of the privilege or if the speaker acted with actual malice

Answer 244

No malice retraction anger provoked by P Mitigating factors (not defenses but can be considered by the jury to reduce damages)

Answer 245

No (emotional and mental distress are enough)

Answer 246

CLIP 1) Commercial appropriation of P's picture or name 2) false Light 3) Intrusion on seclusion 4) Public disclosure of private facts ---------- Publication is required for CLI but not for Public disclosure of private facts ------------ Special (financial) damages are not required - reputational damages or emotional damage can be enough ------------- NO- except for false light

Answer 247

P's picture/name must be used without authorization to D's commercial advantage Putting someone on a newspaper doesn't count (newsworthiness exception) Does not have to be a celebrity.

Answer 248

The goal of appropriation is to compensate for emotional damages The goal of the right of publicity is for P to recover the economic damages

Answer 249

Must be an intrusion on P's PRIVATE affairs (not in public place) that is highly offensive to a reasonable person e.g. eavesdropping spying interception of phone calls etc.

Answer 250

IF: - D with knowledge of falsity or reckless disregard to truth - attributes views/actions to P that P does not actually hold/take - The matter must be highly offensive to a reasonable person - The defendant must circulate the statement widely (one or a few people is not enough)

Answer 251

The same behavior can be defamation and false light but Defamation->economic damages False Light -> Emotional damages

Answer 252

Under the first amendment if the matter is of public concern then P must prove D acted with actual malice

Answer 253

Must prove: D must have disclosed private information about P that is highly offensive to a reasonable person and not of legitimate concern to the public (but if you have shared the info with some people it's not truly confidential) (tabloids reporting on celebrities is not public disclosure of private facts because they are of legit public concern - but might be false light if not true) *liability may attach even if the statement is true

Answer 254

Under the first amendment if the matter is of public concern then P must prove D acted with actual malice

Answer 255

1) Consent (same rules as intentional torts apply) 2) Privilege (can be absolute or qualified - same as defamation) *Truth is usually not a good defense! Good faith/lack of malice/inadvertence are also not usually good defenses!

Answer 256

Fraud or Deceit

Answer 257

1) Misrepresentation of a material fact (past or present) 2) Scienter (D knew or believed a statement was false when it was made or had no basis for it) 3) Intent to induce P's reliance 4) Actual reliance/causation 5) Justifiable reliance 6) Damages (p must show actual financial loss)

Answer 258

1) D is in a fiduciary relationship with P 2) D is selling real property and knows P is unaware and cannot reasonably discover material info about the transaction 3) D has spoken and their utterance has deceived P 4) Physical concealment of a material fact

Answer 259

Only if B's reliance on the statement was foreseeable to D

Answer 260

Only if the D offering the opinion has superior knowledge of the subject matter

Answer 261

1) Misrepresentation by D in a business or professional capacity (COMMERCIAL SETTING) 2) breach of duty toward a PARTICULAR P 3) actual reliance/causation 4) justifiable reliance 5) damages The statement must be made TO P (even foreseeable retransmission not actionable) and it must be foreseeable that P would rely

Answer 262

1) Existence of a valid contractual relationship between P and a third party OR a valid business expectancy of the plaintiff 2) D's knowledge of that relationship or expectancy 3) Intentional interference by D with that relationship or expectancy (e.g. inducing breach) 4) Damages

Answer 263

If it is a proper attempt to obtain business for itself or to protect its own interests which is usually the case IF…. - interference is only with P's prospective business (rather than an existing contract) - commercially accepted means were used rather than illegal/threatening tactics - D is a competitor of P seeking the same customers - D has a financial stake or other responsibility for the third party or the third party requested their advice

Answer 264

If you see one of these, they are probably testing you on your recognition of the fact that reasonableness is a defense and that normal negligence concepts apply

Answer 265

By asking about directed verdict. If the plaintiff has presented no evidence of breach and there is no res ipsa, defendant gets a directed verdict. P never gets a directed verdict unless there is negligence per se and no issue of causation.

Answer 266

Weeds are natural - hedges are artificial

Answer 267

No - does not cut off liability for the manufacturer

Answer 268

P must prove that the defect existed when the product left D's control

Answer 269

All three are liable to P, BUT the defendants can seek indemnity from anyone up the chain from them until the liability comes to rest with the manufacturer However, even if retailer negligently failed to inspect, mfg cannot seek indemnity from retailer because retailer is down the chain