Torts Flashcards
Duty to Rescue
While one whose conduct places another in a position of peril has a duty to assist the person, there is no general affirmative duty to rescue, except by a professional rescuer.
Also, once any person decides to assist in a rescue, he must act as a reasonable person in an emergency situation.
Products Liability Cases based on Strict Liability
Do not require that suppliers have an opportunity to inspect.
Thus, for a case based on the sale of a defective product, a retailer in a strict liability action may be liable for a manufacturing or design defect simply for being a commercial supplier of that defective product, even if it had no opportunity to inspect the manufacturer’s product before selling it.
What may prevent establishing causation against a manufacturer in a strict products liability action?
The failure of a retailer to take action after discovering a dangerous defect.
- The negligent failure of a retailer to discover a dangerous defect does not cut off the supplier’s strict liability.
- On the other hand, when the intermediary’s conduct becomes something more than ordinary foreseeable negligence, it becomes a supervening cause.
- Hence, the conduct of a retailer who discovered a dangerous defect and took no action (such as alerting the manufacturer, warning the consumer, or removing the product from sale) constitutes more than ordinary foreseeable negligence and may cut off the manufacturer’s liability.
Prima Facie Case in Products Liability based on Strict Liability
(1) D is a commercial supplier, (2) D produced or sold a product that was defective when it left D’s control, (3) the product was the actual and proximate cause of P’s injury, and (4) P suffered damages to person or property.
- Examples of commercial suppliers include manufacturers, retailers, wholesalers, and assemblers.
- The second element is established by proving that the product is in a defective condition unreasonably dangerous to users. P need not prove that D was at fault in selling or producing a dangerous product.
- To prove actual cause, P must trace the harm suffered to a defect in the product that existed when the product left D’s control.
Prima Facie Case for Battery
(1) An act by D that brings about harmful or offensive contact to P’s person, (2) intent on the part of D to bring about such harmful or offensive contact, and (3) causation.
- Intent may either be specific (i.e., D’s purpose in acting is to bring about the consequences of his conduct) or general (i.e., D knows with substantial certainty that the consequences will result).
Prima Facie Case for Negligence
Requires P to show: (1) a duty on the part of D to conform to a specific standard of conduct for the protection of P against unreasonable risk of injury, (2) breach of that duty by D, (3) that the breach was the actual and proximate cause of P’s injury, and (4) damage to P’s person or property.
Doctrine of Respondeat Superior
An employer is vicariously liable for tortious acts committed by his employee within the scope of the employment relationship.
Duty of Care
Whenever a person engages in an activity, he is under a legal duty to act as a reasonably prudent person engaged in the same or similar activity.
If D’s conduct creates an unreasonable risk of injury to persons in the position of P, the general duty of care extends from D to P.
-To be owed a duty, P must be within the foreseeable “zone of danger” from D’s activity.
Can a defendant be both vicariously liable and directly liable in the same action?
Yes. A defendant may be both vicariously liable and directly liable in the same action. Vicarious liability is liability that is derivatively imposed.
Because of the special relationship between the parties (e.g., employer-employee), if one person commits a tortious act against a third party, the other person can be liable to the third party for this act. This may be so even though the other person played no part in it, did nothing whatever to aid or encourage it, or indeed had done everything possible to prevent it.
In addition to being vicariously liable because of the relationship between the tortfeasor and the defendant, a defendant may be liable for her own negligence in dealing with or supervising the tortfeasor.
Can an employer be liable for an intentional tortious act committed by an employee?
Yes, under the doctrine of respondeat superior.
While the general rule is that intentional tortious conduct by employees is NOT within the scope of employment, courts will find intentional tortious conduct to be within the ambit of this relationship when: (i) force is authorized in the employment; (ii) friction is generated by the employment; or (iii) the employee is furthering the business of the employer.
When will a principal be vicariously liable for the tortious acts of her independent contractor?
In general, a principal will not be vicariously liable for tortious acts of an independent contractor.
Two broad exceptions exist, however:
(i) The independent contractor is engaged in inherently dangerous activities, e.g., excavating next to a public sidewalk, blasting; or
(ii) The duty, because of public policy considerations, is simply non-delegable, e.g., the duty of a business to keep its premises safe for customers.
What duty does an employer owe to customers in employing an employee?
An employer owes a duty to all those who may foreseeably come into contact with his employee to exercise due care in the hiring, supervision, and retention of the employee.
What duty does a business owner owe his customers?
A business owes its customers a duty to make reasonable inspections to discover and make safe any dangerous conditions. Further, that duty cannot be delegated to an independent contractor; the owner remains vicariously liable.
What duty does a property owner owe to those adjacent to the premises?
A property owner owes a duty to those adjacent to the premises to take due precautions to protect them from dangerous conditions. Further, that duty cannot be delegated to an independent contractor; the owner remains vicariously liable.
The Substantial Factor Test
Where several causes combine to bring about an injury—and any one alone would have been sufficient to cause the injury—the actual cause requirement is satisfied if defendant’s conduct was a substantial factor in causing the injury.
Negligent Infliction of Emotional Distress
A duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff.
For a bystander who is outside the zone of danger from the risk of physical injury but who suffers emotional distress from seeing the defendant negligently injure another, most states allow recovery only if:
(i) the plaintiff and the person injured by the defendant are closely related;
(ii) the plaintiff was present at the scene of the injury; and
(iii) the plaintiff personally observed or perceived the event.
Note: Such a claim requires a threat of physical injury; threat of property damage does not suffice.
When will strict liability be the basis for a nuisance action?
Nuisance is an invasion of private property rights by conduct that is either intentional, negligent, or subject to strict liability.
Strict liability will be the basis for a nuisance action (sometimes called an “absolute” nuisance or a “nuisance per se”) when wild animals or abnormally dangerous domestic animals are involved, or when defendant is engaged in an abnormally dangerous activity.
Elements to Establish a Prima Facie Case for Invasion of Privacy
To establish a prima facie case for invasion of privacy involving public disclosure of private facts about the plaintiff, the plaintiff must show:
(1) that the publication was of private information about the plaintiff; and
(2) that its public disclosure would be highly offensive to a reasonable person.
–Note: There is no liability for publication of matters occurring in a public place.
What is considered a “public place”?
A “public place” is not limited to property owned by public authorities; it includes all areas open to the public, including the entrance to a business’s premises.
Elements to Establish a Prima Facie Case for Trespass to Chattels
Trespass to chattels requires:
(i) an act of defendant that interferes with plaintiff’s right of possession in the chattel;
(ii) intent to perform the act bringing about the interference with plaintiff’s right of possession;
(iii) causation; and
(iv) damages.
Necessity
Pursuant to the privilege of necessity, a person may interfere with property of another where it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and where the threatened injury is substantially more serious than the invasion that seeks to avert it.
–In cases of private necessity (where the act is solely to benefit a limited number of people rather than the public as a whole) the defense is qualified, so that the actor must pay for any injury she causes.
Elements for Defamation
1) A defamatory statement that specifically identifies P (doesn’t have to identify by name)
2) Published to a third party (this means communication to a 3rd person who understands it — doesn’t have to be intentional)
3) Damage to P’s reputation (depends on type of defamation; libel = damages presumed, slander = presumed if slander per se, otherwise P must prove economic harm)
4) Falsity of the defamatory language
5) Fault on the part of D (private person = negligence; public figure = actual malice)
Libel
Defamation that is embodied in permanent form.
—Often written or printed publication of defamatory language
—Most courts today also include defamation in radio and television programs
—General damages are presumed
Slander
This is spoken defamation. P must prove special damages (economic harm) unless the defamation falls within one of the slander per se categories.