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CA Bar Prep 2022 > Torts > Flashcards

Torts Flashcards

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1
Q

What is necessary to make a prima facie case for intentional tort?

A

(1) Act by the defendant (2) done with intent (3) causing harm to plaintiff as a substantial factor.

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2
Q

What types of intent are required for tort?

A

(1) General: acting with substantial certainty can cause harm(2) Specific: acting with actual intent to cause harm(3) Transferred: any harm resulting to another person from a specific intent tort.

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3
Q

What are the torts eligible for transferred intent?

A

(1) Assault, (2) Battery, (3) Trespass and (4) False imprisonment

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4
Q

What damages are available for intentional torts?

A

(1) General (2) Specific (aka economic) (3) Punitive

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5
Q

What are the elements of assault?

A

(1) An act by the defendant creating a reasonable apprehension in the plaintiff (2) of immediate harmful or offensive contact to P’s person(3) Intent(4) Causation

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6
Q

What is a “reasonable apprehension “?

A

(1) Plaintiff perceives or knows defendants act and (2) the act has an apparent ability to result in harmful or offensive contact.

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7
Q

What is insufficient for immediate apprehension of harm?

A

Words alone.

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8
Q

What are the elements of battery?

A

(1) Any harmful or offensive contact by the defendant(2) to the plaintiff’s person(2) with intent(3) causing injury.

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9
Q

What is the test for “offensive” contact?

A

(1) Any inappropriate contact a reasonable person would take offense to and (2) without consent.E.g. Hypersensitivity is ignored.

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10
Q

What counts as a “contact of person” for battery and assault?

A

(1) The body and anything(2) anything directly connected to the body.E.g. clothes.

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11
Q

What is sufficient causation in battery or assault?

A

(1) Any direct harm or (2) indirect harm through instruments or other forces.

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12
Q

What are the elements of false imprisonment?

A

(1) Any (a) act or (b) omission resulting in the plaintiffs restraint or confinement (2) to a bounded area (3) intended and(4) caused by defendant.

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13
Q

What are the types of acts producing restraint or confinement?

A

(1) Physical(2) threats(3) commands of apparent authority.

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14
Q

What is necessary in confinement to be actionable?

A

(1) Awareness or (2) harm by confinement (3) limitation to freedom of movement (4) ignorance of any reasonable means of escape.

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15
Q

What are the elements of Intentional Infliction of Emotional Distress? (IIED)?

A

(1) Extreme, outrageous, or targeted conduct(2) eliciting severe emotional distress in Plaintiff(3) intended or with reckless disregard (4) caused by the Defendant.

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16
Q

What is extreme and outrageous conduct?

A

(1) Exceeding bounds of decency and (2) beyond mere insults.

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17
Q

What types of non-outrageous conduct may be liable?

A

(1) Targeting known sensitivities, phobias, or weaknesses.(2) Continuous or repetitive obnoxious conduct. (3) Directed at a member of a fragile class such as children, elderly, or pregnant women.(4) by an innkeeper or common carrier.

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18
Q

What are the elements of bystander IIED

A

(1) Defendant’s conduct seriously injured or killed a 3rd person, (2) plaintiff is close to the injured person, (3) plaintiff was present for injury, (4) defendant knew of plaintiff’s relationship and presence, (5) plaintiff suffers distress

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19
Q

What is required for severe emotional distress from bystander IIED?

A

No physical manifestation required if a family member, otherwise physical manifestation is required.

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20
Q

What are the elements of trespass to land?

A

(1) Physical invasion into the plaintiff’s real property by the defendant (2) Intent (3) Caused by plaintiffs conduct

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21
Q

What suffices for “invasion” of property?

A

(1) Bodily intrusion or(2) projectiles or placement of tangible object onto (3) land surface, reasonable subsurface or airspace. Light & sound are insufficient.

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22
Q

When does a plaintiff qualify for trespass of land?

A

When they have actual or constructive possession. No ownership required.

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23
Q

What type of intent is required to suffice for trespass of land?

A

Just the intent to enter the property, intent to trespass is not required.

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24
Q

What damages are available for Trespass to Land?

A

General and specific damages. Specific is sufficient, but not necessary.

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25
Q

What are the elements to trespass to chattle & conversion?

A

(1) An intentional (2) interference with the possession of personal property, (3) causing (4) damages.

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26
Q

What is the distinction between trespass & conversion?

A

Trespass is a minor interferance. Conversion is a significant or substnatial interference or damage justifying a remedy of the entire value of the chattel. If the interference is a prolonged use that may also qualify.

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27
Q

What kind of damages must be proven for trespass & conversion?

A

(1) For trespass, a plaintiff may recover cost of repair or rental value when chattel is unavailable. (2) Conversion requires showing a loss of the FMV at time of conversion or repossession. (3) Replevin or repossession for property out of possession.

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28
Q

What are the types of consent defense for intentional torts?

A

(1) Express and (2) Implied

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29
Q

What forms of express consent are permissible?

A

(1) Verbal and (2) Written

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30
Q

When is express consent void?

A

If there is (1) Durress, (2) Fraud, or (3) Mistake

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31
Q

When can implied consent to a battery be infrered?

A

(1) Participation in an activity where minor torts are common, (2) entering area where minor torts are common, (3) ordinary contacts of daily life, (4) plaintiff’s conduct allows a reasonable inference.

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32
Q

What is the scope of consent?

A

Both implied and express consent are always limited in scope and may be exceeded giving rise to liability.

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33
Q

What are the elements to defenses of self, others, or property?

A

(1) A reasonable belief of an imminent or actual tort, (2) properly timed during the threat, (3) reasonable and proportional force in response.

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34
Q

What are the conditions of self-defense?

A

(1) No duty to retreat in many jurisdictions, (2) proportional to the threat, (3) may be deployed by the initial agressor if the defendant responding to non-deadly force escalates to deadly force.

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35
Q

What are the conditions of defense of others?

A

(1) The defendant must have a reasonable belief the third-party victim has the right to self-defense, (2) same level of force permissible as if for self.

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36
Q

What are the elements for defense of property?

A

(1) Reasonable non-lethal or severe force, (2) on an unprivileged intruder, (3) aand reasonable mistake only if intrusion occured, not if privilege existed.

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37
Q

What are the types of necessity?

A

(1) Private and (2) Public

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38
Q

What are the elements of necessity?

A

(1) Defendant’s interferance with plaintiff’s property must be reasonably necessary to avoid an immediate threatened injury, and (2) Threatened injury must be greater or more serious than the interferance to avoid it.

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39
Q

What are the elements of public necessity defense?

A

(1) Invasion or interference or trespass (2) to protect the community or a large group of people, (3) based on a reasonable necessity to protect.

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40
Q

What are some examples of public necessity?

A

Stealing a fire extinguisher to put out a spreading fire. Driving a runaway truck off the highway to prevent a major accident.

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41
Q

What are the conditions on private necessity?

A

(1) Defendant invades plaintiffi’s property to protect the self or a small group, (2) based on a reasonable necessity.

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42
Q

What is the scope of necessity defenses?

A

(1) Public is absolute, (2) Private is limited to actual damages, not punitive or nominal unless defendant’s act benefitted plaintiff

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43
Q

What are the liabilities upon the property owner for necessity?

A

If an owner repels or expels a trespasser who interferes or invades out of a valid necessity, the owner will be liable for damages to the party with a valid necessity.

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44
Q

What are the elements to recapture of chattels defense?

A

(1) Defendant owner must make a timely demand for return unless futile or dangerous, (2) intrude the property in a reasonable time and manner, (3) use of force must be reasonable, non-lethal or seriously dangerous.

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45
Q

When may a defendant capture from third-parties?

A

(1) Any time the third-party knows the property was wrongfully obtained, (2) if innocent after first giving notice.

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46
Q

When is a recapture privilege unavailable?

A

If the property to be recaptured is on an innocent person’s property because of the defendant’s fault.

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47
Q

What may a defendant do if an innocent landowner refuses entry for replevin?

A

The defendant may enter at a reasonable time and in a peaceful manner.

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48
Q

What are the elements of defamation?

A

(1) A defamatory statement, (2) concerning the plaintiff, (3) published, (4) harmful to reputation, (5) that is false, (6) if a public figure, actually malicious, (7) damages.

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49
Q

What is a defamatory statement?

A

Adversely affects the reputation based on specific facts and not mere opinion.

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50
Q

When does a statement concern the plaintiff?

A

Either (1) expressly, of (2) implicitly through a reasonable inference.

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51
Q

What is sufficient for publication?

A

Intentionally or negligently communicated or received to a third person.

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52
Q

When is a statement harmful to reputation?

A

If it lowers the esteem, trustworthyness, or opinion of the plaintiff in a community whether public or minority.

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53
Q

What is the scope of liability for a publisher who republishes?

A

To the same extent as the original publisher.

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54
Q

When must a plaintiff show actual malice in defamation?

A

When the plaintiff is: (1) A public figure, (2) public official, (3) private individual speaking for a matter of public concern?

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55
Q

What is a public figure?

A

A person with pervasive fame or notoriety or who voluntarily assumes a central role in a public matter.

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56
Q

Who is a public official?

A

Anyone who holds a public office.

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57
Q

What is necessary to prove “actual malice”?

A

(1) Falsity of the statement, (2) Fault in so far as the publisher knew the statement was false or acted with reckless disregard.

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58
Q

What is the standard for public figures?

A

(1) Falsity, and (2) Negligence

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59
Q

When is it unnecessary to show actual malice?

A

(1) Private figure and (2) private matters.

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60
Q

What are the distinctions between the forms of defamation?

A

(1) Libel is written or recorded (2) Slander is spoken.

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61
Q

What damages are available for libel?

A

(1) General without special, (2) Special

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62
Q

What damages are available for slander?

A

(1) General only with (2) Special economic loss [e.g. losing a job] unless slander per se

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63
Q

When is slander slander per se?

A

(1) professional or business reputaion, (2) loathsome disease, (3) crime or moral turpitude, (4) unchaste lady

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64
Q

What are the defenses to defamation?

A

(1) Consent, (2) Truth, (3) Privilege

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65
Q

What are the types of privilege for defamation?

A

(1) Absolute for government officials acting in an official capacity, and (2) Qualified.

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66
Q

What are the types of qualified privileges for defamation?

A

(1) Invites the statement or recipient has an interest. (2) Statement is in the public interest. (3) Public hearing.

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67
Q

What are the elements of Appropriation?

A

(1) Unauthorized use of (2) plaintiff’s name or likeness for (3) commercial purposes other than news reporting.

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68
Q

What are the elements of False Light?

A

(1) A widespread publication of (2) a falsehood or material misrepresentaion (3) about the plaintiff, (4) that would be highly offensive to a reasonable person.

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69
Q

What are the defenses to false light & appropriation?

A

(1) Consent, (2) Privilege for false light. Truth is not a defense for privacy claims.

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70
Q

What are the elements of intrusion upon seclusion?

A

(1) Plaintiff must have a reasonable expectation of privacy, (2) Intrusion by defendant must be highly offensive.

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71
Q

What are the elements of disclosure of private facts?

A

(1) High offensive to a reasonable person, (2) Publicized, (3) Not newsworthy

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72
Q

What are the elements of malicious prosecution?

A

(1) Defendant brings a frivlous charge or claim after a prior criminal or civil litigation against plaintiff, (2) plaintiff won prior suit, (3) no probable cause for the cases, (4) defendant had an improper purpose for bringing suits, (5) damages.

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73
Q

What are the elements of abuse of process?

A

(1) Wrongful use of process for an ulterior motive, (2) Definite act or threat against plaintiff to accomplish an ulterior purpose.

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74
Q

What are the six elements of Intentional Misrepresentation?

A

(1) False past or present material fact, (2) known or believed false, (3) intended to induce action or reliance, (5) victim justifiably relies, (6) and incurs specific monetary damages as a result.

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75
Q

What are the elements of Negligent Misrepresentation?

A

(1) Defendant misrepresents a material fact in a business setting, (2) Breach of duty of care owed to a particular plaintiff, (3) Actual and justifiable reliance by plaintiff, (4) Plaintiff has actual monetary damages

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76
Q

What are other names for “misrepresentation”?

A

Fraud or deceit

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77
Q

What are the elements of intentional interference with business relations?

A

(1) Plaintiff has a valid contract or business expectation with a third party, (2) Defendant knows of the relationship or expectation, (3) Defendant intentionally interferes with that relationship, (4) Defendant’s interference causes a breach or termination in plaintiff’s contract or expectancy, (5) Damages to plaintiff.

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78
Q

What defenses are available for intentional interference with business relations?

A

Privilege if the defendants conduct is a proper attempt to obtain business or protect his interests.

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79
Q

What is another term for intentional interference with business relation?

A

A “tortious interference with contract.”

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80
Q

What are the elements of negligence?

A

(1) Duty of care, (2) Breach of Duty, (3) Causation [actual and proximate], (4) Damages

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81
Q

What is the standard for negligence?

A

A reasonable person under similar circumstances.

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82
Q

What is the duty standard for negligence?

A

Outside of special standards of care that of a Reasonably Prudent Person (RPP)

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83
Q

What are other terms for actual cause?

A

A “cause-in-fact” or “factual cause.”

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84
Q

What are other terms for proximate cause?

A

“Legal cause”

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85
Q

What aspect of the defendant is considered in the RPP standard?

A

In a RPP standard the defendant’s physical characteristics are part of the question, but the mental capacity is that of an ordinary person.

86
Q

A person is owed a duty of care if they are:

A

a foreseeable plaintiff or in the zone of danger.

87
Q

What is considered the zone of danger?

A

All of the area around the defendant’s activities in which a plaintiff could be foreseeably be injured.

88
Q

What is the “rescuer’s exception”?

A

If the defendant puts himself or another in danger and a third person attempts to rescue, then the Defendant may be held liable for the rescuer’s injuries regardless of how unforeseeable.

89
Q

What are two special classes of people owed a standard duty of care.

A

(1) A viable fetus, (2) intended economic beneficiary or third party beneficiaries where the harm is foreseeable.

90
Q

What standard of care do children owe?

A

The same stndard of care a like child of similar (1) age, (2) education, (3) intelligence, and (4) experience.

91
Q

What duties are owed by children under age 6?

A

Young children lack capacity to be negligent.

92
Q

What exceptions are there to child standard of care?

A

If the child is engaging in an adult activity they are held to an adult standard of care.

93
Q

What duty of care is owed by innkeepers and common carriers?

A

An “utmost” standard of care. Liable for even a slight negligence to passengers or guests.

94
Q

How does custom or usage in industry affect the duty of care?

A

Can be used to be establish a standard of care, but failure is NOT automatically give rise to a breach.

95
Q

What standard are professionals held to?

A

Professionals are expected to act with the care of an AVERAGE professional memeber in good standing in similar communities.

96
Q

What are the standards for medical specialists?

A

A national standard.

97
Q

What are the standards for a medical professional?

A

A duty of care only to their patients.

98
Q

When does a statutory standard of care apply?

A

(1) Statute imposes penalties, (2) conduct is clearly defined, (3) Plaintiff within intended protected class, (4) statute designed to prevent harm suffered by plaintiff.

99
Q

A statute may be violated without penalty if…

A

(1) Compliance is more dangerous than non-compliance OR (2) Compliance is impossible under the circumstances.

100
Q

What are the elements of “Negligence Per Se”?

A

(1) A statutory standard of care, (2) causation, (3) damages.

101
Q

What is the effect of regulatory compliance on negligence?

A

Compliance with a statutory standard of care does NOT automatically clear liability.

102
Q

What are the classes of people to whom a land owner owes a duty?

A

(1) Unkown or undiscovered trespassers, (2) anticipated trespassers, (3) invitees, (4) licensees.

103
Q

What duties are owed to unknown/undiscovered trespassers?

A

None. [except California]

104
Q

What duty is owed to anticipated or foreseeable trespassers?

A

(1) Duty to use reasonable care in carrying out activities on the property (2) Duty to make safe or warn of known or concealed man-made (artificial) hazards.

105
Q

What is the attractive nuisance doctrine?

A

An owner must take reasonable care to eliminate dangers on property or protect children from dangers if (1) knows or should be aware of a dangerous condition, (2) knows or should know of children in the vicinity, (3) condition is likely to cause injury given a child’s inability to appreciate the risk, and (4) magnitude of the risk outweighs its utility or the expense of remedy.

106
Q

What is a licensee?

A

A person who enters land with the owner’s permission for the benefit of the licensee.

107
Q

What are the duties owed to licensees?

A

(1) Reasonable care for activities, (2) Duty to warn or make safe dangerous conditions

108
Q

What is an invitee?

A

A person who enters the land held open to the public or who enters with the owner’s permission for the commercial benefit of the land holder.

109
Q

What are the duties owed to invitees?

A

(1) Reasonable care for activities, (2) Duty to warn or make safe dangerous conditions, (3) Duty to Inspect

110
Q

What is an example of a licensee?

A

A social guest, friend, or relative.

111
Q

What is an example of a invitee?

A

A customer or a client.

112
Q

What duties may not be delegated by a person that holds property open to the public?

A

A non-delegable duty to keep the premises safe for their customers.

113
Q

What is the scope of duty?

A

For invitees & licensees the duty extends ONLY to the areas where one is permitted.

114
Q

Are first responders licensees?

A

Yes, however no duty is owed if injury is suffered in line of duty even if caused by the defendant’s negligence.

115
Q

How can a tort plaintiff show a breach?

A

(1) RPP, (2) Per se negligence, (3) Special standard, (4) community or professional custom (not automatic), (5) Res Ipsa Loquitur.

116
Q

What is “Res Ipse Loquitur”?

A

A breach standard where the very occurence of the accident causing the plaintiff’s injuries suggests negligent conduct where if facts cannot establish breach due to circumstances surrounding the event are unknown.

117
Q

When is “res ipse loquitur” used?

A

When a plaintiff suffers an injury and reasonably suspects it arose as a result of negligence but does not have sufficient facts available to show breach in the pleadings.

118
Q

How can a plaintiff make a case for “res ipse loquitur”?

A

(1) Type of injury normally occurs from negligence, (2) defendant is probable cause, and (3) not the victim.

Usually arises from an instrument under the exclusive control of a defendant.

119
Q

When is an inference of negligence valid?

A

When the injury suffered by the palintiff would not normally occur in the absence of negligence. e.g. a barell falling out of a window of a department store.

120
Q

How can attribution of negligence be satisfied?

A

When the instrument of injury was in the defendant’s exclusive control.

121
Q

What is the test for “actual” or “factual” cause?

A

“But-for” the alleged breach of duty the plaintiff would not have sustained injuries.

122
Q

What is the substantial factor test?

A

A test applied when there are multiple causes of the plaintiff’s injuries.

123
Q

When is the substantial factor satisfied?

A

When the facts indicate the defendant’s breach “substantially” contributed to the injury. e.g. starting a fire that spreads and destroys plaintiff’s land.

124
Q

What is the burden-shifting test for multiple defendants in tort?

A

Where there are (1) Multiple contributing defendants where (2) only one caused plaintiff’s injries and (3) it is unclear which defendant caused the injries, then (4) defendants must show one of the other defendants is liable otherwise, (5) they will all be held jointly and severally liable.

125
Q

What standard is used to establish foreseeability for a proximate cause?

A

Whether it is reasonably predictable, not whether it is probable. e.g. we can predict a loose bumper could hurt a pedestrian, however unlikely.

126
Q

What is a direct cause in torts?

A

If the plaintiff’s injuries are the direct result of the defendant’s conduct the defendant is liable unless it is truly bizarre or unpredictable.

127
Q

What is an indirect cause?

A

An intermediary force occuring after the defendant’s conduct which in turn causes the plaintiff’s injuries.

128
Q

When is a defendant liable for an indirect cause?

A

When the injuries are foresseable and either (1) it is a normal response or reaction to the defendant’s negligent conduct, or (2) defendant’s negligence increased the risk of an intervening force giving rise to harm.

129
Q

What injuries are considered generally foreseeable?

A

Any injuries to rescuers in responding to a negligent act by defendant.

130
Q

What is the “eggshell plaintiff rule”?

A

The defendant is liable for the full extent of injuries suffered by plaintiff even if it is unforeseeable that a peculiarity will lead to greater injury. “You get what you see”

131
Q

Who determines the proximate cause?

A

The jury, it is a question of fact.

132
Q

What can be subject to damage.

A

(1) personal injuruy and (2) property.

133
Q

What are the types of damages?

A

(1) special or economic damages, (2) general damages, (3) punitive damages.

134
Q

What types of damages are recoverable for personal injury?

A

(1) special or economic damages, (2) general damages, (3) punitive damages.

135
Q

What types of damages are recoverable for property damage?

A

(1) special damages and (2) punitive damages.

136
Q

What damages are non-recoverable?

A

(1) interest from the date of the damage in a personal injury case, (2) attorney’s fees.

137
Q

What is the duty to mitigate?

A

A plaintiff must take reasonable steps to mitigate damages.

138
Q

What is comparative negligence?

A

A partial defense where the defendant can show that the plaintiff’s injuries are at least partly the result of the plaintiff’s own negligence.

139
Q

What does comparative fault or negligence affect?

A

Damages.

140
Q

What are the types of comparative negligence?

A

(1) Partial [modified], and (2) pure comparative negligence.

141
Q

What is partial or modified comparative negligence?

A

A plaintiff may only recover damages if he was less than 50% at fault.

142
Q

What is pure comparative negligence?

A

A plaintiff can recover damages even if at more than 50% fault.

143
Q

What is contributory negligence?

A

A defense barring recovery if the defendant shows the plaintiff’s negligence contributed to their injuries.

144
Q

What is the “last clear chance” defense?

A

A plaintiff may rebut the defendant’s contributory negligence claim by alleging the defendant had the last clear chance to avoid the injury-causing accident.

145
Q

What is “assumption of risk”?

A

A defendant can completely deny recovery if the plaintiff assumed the risk of damage from the defendant’s act.

146
Q

What is required for the assumption of risk?

A

(1) Plaintiff knew or should have known of the risk (objective) and (2) Plaintiff voluntarily proceeded in the face of that risk.

147
Q

What are the types of assumption of risk?

A

(1) Express assumption via exclpatory clause in a contract or (2) implicit by engaging in conduct that is known to cause certain injuries.

148
Q

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

A

(1) When defendant’s negligence results in a close risk of bodily harm to plaintiff, (2) negligence results in severe emotional distress, (3) plaintiff exhibits some physical manifestation attributable to emotional distress.

149
Q

What conditionsin common law allow a plaintiff assert NIED?

A

When they are in the zone of danger.

150
Q

When may a plaintiff claim “bystander” NIED?

A

If (1) an injured party is a closely related to the plaintiff ,(2) plaintiff was present at the scene of injury, and (3) plaintiff personally observed or perceived the event.

151
Q

What special circumstances give rise to bystander NIED?

A

(1) False report of loved one’s death, (3) false diagnosis of a terminal disease, or (3) mishandling of corpse,

152
Q

How does bystander NIED differ from bystander IIED?

A

(1) the defendant must have known of the relationship and the presence of the plaintiff and (2) plaintiff need not suffer physical symptoms.

153
Q

What are the elements of a prima facie case for strict liability?

A

(1) Nature of defendant’s activity imposes absolute duty of safety (2) Actual & Proximate Cause of (3) Damages to Plaintiff’s property or person.

154
Q

What are the types of cases that are subject to strict liability?

A

(1) Ultrahazardous or abnormally dangerous activity, (2) dangerous or vicious animals, (3) products liability

155
Q

What are defenses to strict liability?

A

(1) Assumption of risk (total) and (2) Comparative Negligence (partial)

156
Q

What is an abnormally dangerous activity?

A

Any activity that (1) presents a severe risk of harm, (2) that cannot be made safe, (3) uncommon in the community.

157
Q

What are examples of uncommon dangerous activities?

A

(1) explosive materials, (2) toxic waste, and (3) biohazardous materials.

158
Q

What is required for the liability from strict liability?

A

The injury must arise from a foreseeable risk associated with a dangerous condition.

159
Q

What liabilities are attached to trespassing animals?

A

Animal owners are strictly liable for foreseeable damage. Does not apply to household pets.

160
Q

When is an owner liable for personal injury from animals?

A

When (1) the wild is animal or (2) a domestic animal is known to be vicious.

161
Q

How is an animal determined to be vicious?

A

An owner may be held liable in negligence if the animal has not bitten someone previously, but if it is known to be prone to biting or has bitten the owners are strictly liable.

162
Q

When is an owner exempt from liability?

A

When injuries arise from an unforeseeable trespass onto their property or if there are clear warnings or obvious dangerous.

163
Q

What are the core elements to products liability?

A

(1) Defendant is a commercial supplier or mechant, (2) product is defective, (3) defective product was actual & proximate cause of plaintiff’s injury, (4) plaintiff used product in a foreseeable manner.

164
Q

When is a defendant a merchant or commercial supplier?

A

A merchant is anyone who (1) routinely deals (2) in the kinds of goods at issue, (3) including a distributor or retailer.

165
Q

What are the types of plaintiffs who have standing in products liability? ⏹

A

(1) Foreseeable users, (2) bystanders, (3) household members, (4) guests.

166
Q

What damages are available for products liability?

A

(1) Specific damages for personal injury or property damages, but not solely economic (2) general, and (3) punitive if malicious.

167
Q

What are the types of product defect?

A

(1) Manufacturing defect, (2) design defect, and (3) warning defect.

168
Q

What is a manufacturing defect?

A

A product that (1) departs from its intended design (2) causing it to be more dangerous than designed and (3) failed to be safety expectations of an ordinary consumer.

169
Q

What is a design defect?

A

Product must (1) create an unreasonable risk of danger, (2) due to faulty design when (3) there is an economically feasabile alternative design or modification.

170
Q

What is a warning defect?

A

A manufacturer fails to warn when there’s (1) a foreseeable danger from proper use or misuse (2) creating risks that cannot be eliminated by a redesign and (3) consumer would not ordinarily notice the risk.

171
Q

What is an “unavoidably” unsafe product?

A

Any product that cannot be made safe for ordinary use such as firearms, chain saws, etc.

172
Q

What must be included with unavoidably unsafe products?

A

(1) Proper instructions for usage and (2) adequate warnings of known dangers.

173
Q

What are the elements for a negligence theory of products liability?

A

(1) Duty of care from commercial suppliers to foreseeable users & bystanders, (2) Breach of duty leads to supplying defective product, (3) Causation, 4 Damages

174
Q

What may a retailer or wholesaler do to avoid liability under negligence theory?

A

Inspect the product.

175
Q

What other tort may be associated with negligent products liability?

A

Battery

176
Q

What are the two warranties for products liability?

A

(1) Merchantability and (2) Fitness for a particular use.

177
Q

What is the warranty of merchantibility?

A

(1) Seller implicitly warrants that (2) goods are of average acceptable quality and (3) generally fit for their ordinary purpose.

178
Q

What are the elements of warranty of fitness for a particular purpose?

A

If a seller (1) knows or has reason to know of the particular purpose motivating a purchase and (2) the buyer relies on the seller’s skills or judgment, then (3) seller implicitly warrants goods are fit for said purpose.

179
Q

Who is a legitamate plaintiff if implied warranties?

A

Implied warranty extends to the buyer, family, household, and guests who may suffer injury.

180
Q

What are the elements to succeed on a claim on implied warranties?

A

(1) Warranty, (2) Breach, (3) Causation, (4) Damages

181
Q

What defenses are there for implied warranty?

A

(1) Assumption of risk, (2) contributory and comparative negligence.

182
Q

What are the elements for liability based on representation?

A

(1) An express warranty relied on by purchaser, (2) breach, (3) causation, (4) damages.

183
Q

What is an express warranty? 🔽

A

(1) A statement of fact or a promise (2) regarding the goods sold that (3) becomes the basis of the bargain.

184
Q

Who has standing to sue in product liability from a representation theory?

A

Any injured person including bystanders who may not have relied on the express warranty so long as the original purchaser did.

185
Q

Does an injured person in implied or express warranty need to have relied on a warranty to sue?

A

No. So long as the original purchase relied on the warranty that is sufficient to give standing.

186
Q

What are the elements for misrepresentation of fact for representation products liability?

A

(1) Seller made a misrepresentation concerning the quality of the goods, (2) seller intended to induce reliance by the buyer, (3) misrepresentation induced justifiable reliance.

187
Q

What defenses are available for misrepresentation of fact for representation products liability?

A

No assumption of risk. However, contributory negligence may be available if the misrepresentation was not intentional, but negligent.

188
Q

What are the types of nuisance?

A

(1) Private nuisance and (2) Public nuisance

189
Q

What are the essential elements of private nuisance?

A

(1) A substantial and (2) unreasonable intereferance with (3) another individual’s use or enjoyment.

190
Q

What is a “substantial” interference?

A

(1) Offensive, annoying, or inconvenient to (2) the average person (3) in the community.

191
Q

What is an “unreasonable” intereferance?

A

The severity of the plaintiff’s injury must exceed the utility of the defendant’s conduct.

192
Q

What does the court take into account for nuisance?

A

Who has temporal priority. One cannot go to the nuisance.

193
Q

What are the remedies to private nuisance?

A

(1) Money Damages in Law, (2) Injunctive Relief in Equity

194
Q

What are the elements of a Public Nuisance?

A

(1) An unreasonable interference (2) with health, safety, or property rights (3) of the community at large.

195
Q

What remedies are available for nuisance?

A

(1) money damages, (2) injunctive relief.

196
Q

What are defenses to private nuisance?

A

“Coming to the nuisance.” and contributory negligence.

197
Q

What is “respondeat superior”?

A

An employer is liable for torts committed by an employee within the scope of their employment.

198
Q

When is an employer responsible for the intentional torts of an employee?

A

If (1) the job requires the use of force, (2) entails creating friction, (3) done to further the employer’s goals.

199
Q

How may an employer be liable for independent contractors?

A

Generally not liable unless (1) for acts inherently dangerous or (2) non-delegable duties or (3) under direct control or command.

200
Q

What is the liability between partners?

A

Each partner is vicariously liable for any other partner’s torts committed within the scope of the partnership.

201
Q

When is a parent liable for the conduct of their children?

A

In general, parents are not liable unless parents are separately negligent if they knew or should have known to know of a child’s propensity to injure or they facilitated the tort.

202
Q

When is a bar or tavernkeeper liable for the conduct of patrons?

A

Only if serving alcohol. Then only if the tortious patron was negligently served alcohol.

203
Q

When does joint and several liability arise?

A

When the acts of two or more defendants combine to produce a single indivisible injury.

204
Q

What is the effect of joint & several liability?

A

Each defendant is jointly and severally liable for the entire harm if his actions were a factor in bringing about the injury.

205
Q

What is the effect of defendants acting in concert resulting in injury?

A

Each defendant will be liable for the entire injury regardless if the individual culpability is divisible.

206
Q

What is satisfaction in joint & several liability?

A

If a plaintiff recovers the entire remedy from one defendant they may not recover from a jointly liable defendant.

207
Q

What is the rule of contribution in joint & several liability?

A

A defendant who pays more than their share of damages may assert a claim aginst jointly liable parties for the excess of the amount they paid.

208
Q

When does contribution not apply?

A

When there is an intentional tort.

209
Q

How is contribution assigned?

A

Each defendant is apportioned the proportion of their relative fault.

210
Q

What is indemnity?

A

The shifting of the entire burden of liability to another party or co-defendant. Indemnity is usually from contract, in vicarious liability, under strict liability, or insurance.

211
Q

What is the only defense a negligent tortfeasor may make if a rescuer is injured trying to help them?

A

If the rescuer is injured in trying to rescue through recklessness.

CA Bar Prep 2022 (14 decks)

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