Torts

Question 1

Duty to Rescue

Answer 1

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.

Question 2

Products Liability Cases based on Strict Liability

Answer 2

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.

Question 3

What may prevent establishing causation against a manufacturer in a strict products liability action?

Answer 3

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.

Question 4

Prima Facie Case in Products Liability based on Strict Liability

Answer 4

(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.

Question 5

Prima Facie Case for Battery

Answer 5

(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).

Question 6

Prima Facie Case for Negligence

Answer 6

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.

Question 7

Doctrine of Respondeat Superior

Answer 7

An employer is vicariously liable for tortious acts committed by his employee within the scope of the employment relationship.

Question 8

Duty of Care

Answer 8

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.

Question 9

Can a defendant be both vicariously liable and directly liable in the same action?

Answer 9

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.

Question 10

Can an employer be liable for an intentional tortious act committed by an employee?

Answer 10

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.

Question 11

When will a principal be vicariously liable for the tortious acts of her independent contractor?

Answer 11

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.

Question 12

What duty does an employer owe to customers in employing an employee?

Answer 12

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.

Question 13

What duty does a business owner owe his customers?

Answer 13

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.

Question 14

What duty does a property owner owe to those adjacent to the premises?

Answer 14

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.

Question 15

The Substantial Factor Test

Answer 15

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.

Question 16

Negligent Infliction of Emotional Distress

Answer 16

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.

Question 17

When will strict liability be the basis for a nuisance action?

Answer 17

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.

Question 18

Elements to Establish a Prima Facie Case for Invasion of Privacy

Answer 18

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.

Question 19

What is considered a “public place”?

Answer 19

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.

Question 20

Elements to Establish a Prima Facie Case for Trespass to Chattels

Answer 20

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.

Question 21

Necessity

Answer 21

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.

Question 22

Elements for Defamation

Answer 22

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)

Question 23

Libel

Answer 23

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

Question 24

Slander

Answer 24

This is spoken defamation. P must prove special damages (economic harm) unless the defamation falls within one of the slander per se categories.

Question 25

Defamation cases brought by public officials and public figures

Answer 25

Actual malice must proved (knowledge that the statement was false or reckless disregard as to whether it was false).

— Subjective test

—Deliberately altering a quote May constitute malice if the alteration is material

—D’s spite or ill will is not enough

—A person is a public figure by achieving pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy.

Question 26

Defamation Cases for Private Persons of Matters of Public Concern

Answer 26

When a private person is P, only negligence regarding falsity must be proved if the statement involves a matter of “public concern.”

—If D is negligent, only “actual injury” damages are recoverable (economic damages + damages for impairment to reputation and personal humiliation) (no presumed damages)

—However, if actual malice is found, damages may be presumed, and punitive damages allowed.

Question 27

What is a Matter of Public Concern?

Answer 27

To determine whether the defamatory statement involves a matter of pubic concern or private concern, the courts will look at the content, form, and context of the publication.

Question 28

Slander Per Se

Answer 28

Spoken defamatory statements that:

1) Adversely reflect on P’s business or profession
2) State that P has committed a serious crime
3) Impute that P has engaged in serious sexual misconduct
4) State that P has a loathsome disease (venereal disease)

Question 29

Pure Comparative Negligence

Answer 29

Under pure comparative negligence, which you should assume is the rule unless the question specifies otherwise, the plaintiff may recover no matter how great her negligence. Each defendant is jointly and severally liable.

–Absent a statute, damages are not reduced or mitigated because of benefits received from collateral sources (e.g., health insurance).

Question 30

When will a principal be liable for the tortious acts of an independent contractor?

Answer 30

Under vicarious liability rules, a principal will be liable for the tortious acts of an independent contractor if the duty is nondelegable on public policy grounds; included is the duty of a possessor of land to keep its premises safe for its invitees.

Question 31

Can a rescuer sue the person in peril if he the rescuer becomes injured while trying to help that person?

Answer 31

Yes. A rescuer is a foreseeable plaintiff as long as the rescue is not reckless; hence, the defendant is liable if he negligently puts himself in peril and the plaintiff is injured attempting a rescue. A plaintiff may take extraordinary risks when attempting a rescue without being considered contributorily negligent. The emergency situation is one of the factors taken into account when evaluating the plaintiff’s conduct.