Torts

Question 1

Missappropriation

Answer 1

the unauth use of the π’s pic or name for the ∆’s commercial advantage

Question 2

Intrusion on π’s solitude

Answer 2

the intrusion into a private aspect of the π’s life in a private place that is highly objectionable to a RP.

Question 3

False Light

Answer 3

Where one attributes to π views they do not hold or actions they do not take, the which is objectionable to a RP under the circ, and the publication is public. If the matter is of public interest or the π is a public figure, malice mb proven.

Question 4

Publicity of private life

Answer 4

The public disclosure of private facts that are not a matter of legit public concern, the release of which is objectionable to a RP where the disclosure is communicated to the public at large, and not just to a single person or small group of persons.

Question 5

Negligence

Answer 5

To prevail in a negligence action, the πmust show ∆owed her a duty of care, ∆breached that duty, the breach of duty was the actual cause and the proximate cause of the harm and the πsuffered damages.

Question 6

Duty of Care

Answer 6

A person has a duty to act as a RP. Maj of cts hold that a duty is only owed to foreseeable πs in the zone of danger (Cordozo), while Min of cts hold that a duty is owed to everyone including unforeseeable πs (Andrews). ∆ gen has no duty to take aff action to help π unless there is a special relationship, such as a bus or LO holding premises open to the public, or LLs and Ts; when ∆’s conduct placed π in danger; or where ∆ vol begins to render assistance to π, he must proceed w/ reas care.

Question 7

Neg per se

Answer 7

Neg per se can est the duty and breach elements of negligence through vio of a statue. πmust show that he is in the class intended to be protected by the statute, and the statute was intended to prevent the type of harm that the πsuffered.

Question 8

Actual Cause

Answer 8

Actual cause means but for the ∆’s act, the injury to π would not have resulted.

Question 9

Prox cause

Answer 9

Gen, ∆ is lia for all harmful results that were RF. ∆ lia for any addtl harm to π caused by a susceptibility of the ∆ bc the ∆ takes his π as he finds him. ∆ is lia for all foreseeable intervening causes but not lia for superseding causes that are not normal response or not RF reaction to the situation created by ∆’s conduct

Question 10

Damages - Negligence

Answer 10

Damages require an actual injury to the π and nominal damages are not available.

Question 11

CL Contributory Neg

Answer 11

At CL, a πwhose neg was found to have contributed to her injury was completely barred from recovering under traditional cont neg rules. Contributory neg has been abolished in most jdx.

Question 12

Comparative neg

Answer 12

Comparative neg applies when the π’s own neg has also contributed to his injuries, but doesn’t completely bar recovery. Lia divided between the π and ∆ in proportion to their relative degrees of fault.

Question 13

Pure Comparative Neg

Answer 13

allows recovery in proportion of fault regardless of how neg π was, but the π’s recovery will be reduced by his proportionate neg.

Question 14

Partial comparative neg

Answer 14

Bars the π’s recovery if his neg was more serious than the ∆’s, if more than 50%.

Question 15

Assault

Answer 15

To est a PF case for assault, πmust show:

(1) Reas apprehension in the πof immediate harmful or offensive contact;
(2) Intent;
(3) Causation

Question 16

Battery

Answer 16

To est PF case for battery, πmust show:

(1) an act by ∆ that brings about harmful of offensive contact;
(2) Intent;
(3) Causation

Question 17

False Imprisonment

Answer 17

To est a PF case for FI, πmust show:

(1) act or omission by ∆ that confines or restrains πto bounded area;
(2) Intent to confine π;
(3) Causation

Question 18

IIED

Answer 18

To PF case for IIED reqs:

(1) act by ∆amounting to extreme and outrageous conduct;
(2) Intent by ∆ to cause πto suffer severe emo distress, or recklessness as to the effect of the ∆’s conduct;
(3) Causation;
(4) Damages (severe emo dist).

Question 19

Trespass to Chattels

Answer 19

(1) Act by ∆that interferes w/ π’s right of possession;
(2) Intent to do the act that brings about the interference;
(3) Causation;
(4) Damages.

Question 20

Conversion

Answer 20

To est a PF case, πmust show:

(1) an act by ∆interfering w/ π’s right of possession in chattel that is serious enough in nature to warrant that the ∆ pay full value of chattel;
(2) Intent to do the act that brings about the interference;
(3) Causation

Question 21

Licensee & Duties

Answer 21

Licensee is one who enters land w/ the owner’s consent for his own purpose (social guests). LO has duty to warn of all known dangerous conditions that create an unreas risk of harm that the licensee is unlikely to discover and to use reas care in conducting its active operations on the prop. No duty to repair or inspect the premises

Question 22

Invitee and Duties

Answer 22

Invitee is one who enters the land in response to an invitation by the owner to do bus w/ the owner or as a public invitee for land open to the public at large. LO has duty to make a reas inspection to find hidden dangers and take aff action to remedy a dangerous condition.

Question 23

Strict Products Lia

Answer 23

To prevail, πmust est:

(1) the ∆is a commercial supplier;
(2) the ∆ produced or sold a product that was defective when it left the ∆’s control;
(3) the defective product was the actual and pros cause of π’s injury;
(4) πsuffered damages to person or prop (econ damages not recoverable).

Question 24

Commercial Supplier

Answer 24

A commercial supplier is one who places products in the stream of commerce, doesnt apply to casual sellers. Includes many, wholesalers, assemblers, distributors and retailers.

Question 25

Actual cause - SPL

Answer 25

To prove actual cause, πmust trace the harm suffered to a defect in product that existed when the product left ∆’s control. Any subst alteration in the condition of the product after it left ∆’s control may negate actual cause.

Question 26

Prox cause - SPL

Answer 26

πmust show that the injury she suffered was foreseeable at time the product was placed into the stream of commerce. An injury is foreseeable when it arose from foreseeable misuse of the product.

Question 27

Trespassers and Duties

Answer 27

LO gen owes no duty to make the land safe or warn of dangerous conditions to undiscovered trespassers or invitees/licensee that go beyond the scope of their invitation. Except there is duty to warn known trespassers of known dangers and artificial conditions that pose a risk of death or serious bodily harm

Question 28

Manufacturing defect

Answer 28

Manf defect exists when a product produced is different and more dangerous than all the others because this particular product deviated from its intended design.

Question 29

Design Defect

Answer 29

Design defect exists when all products of a line are the same and they all bear a feature whose design itself is defective and unreas dangerous. Such a defect can be est under the consumer expectations test and risk utility test: (1) Under the consumer exp test, a product’s perf must meet the min safety expectations of its ord users when used in a reas foreseeable manner. Consumer misuse is RF. (2) Under the risk utility test, a product is defective if the risk of danger inherent in the design outweighs the benefits of such design and the danger could have been reduced or avoided by the adoption of a reas, cost-effective alt design.

Question 30

Warning Defect

Answer 30

Warning defect exists when the maker fails to give adequate warnings as to a known (or should have known) danger in the product or in a particular use of the product that is nonobvious. Cts apply the risk-utility test and consider the specificity and conspicuousness of the warnings.

Question 31

Implied warranty of merchantability

Answer 31

implied in every sale of goods, warranting that they are fit for the ordinary purpose for which the goods are used

Question 32

Express warranty

Answer 32

Any stmt of fact or promise concerning a product. If the product does not live up to the warranty expressly made about the product, the party expressing the warranty may be lia. The warranty must have been made at the time of purchase.

Question 33

Fitness for a particular purpose

Answer 33

When the S knows or has reason to know that the B wants the goods for a particular purpose and the B relies on the S’s judgment to recommend a suitable product.

Question 34

CL Defamation

Answer 34

Occurs when a false and defamatory stmt of or concerning π is published to a person other than the π causing damage to the π’s rep. The stmt must hold the π up to contempt or public ridicule. Pure opinions or true stmts are not def stmts. The π mb ID’able The publication mb made to a 3rd party and the 3rd party must understand the stmt to effectuate publication. The stmt need not have actually harmed the π’s rep, but the π must show that it would have had it been believed.

Do not have to allege malice or neg if not public figure or matter of public concern.

Question 35

Libel

Answer 35

Written or printed publication of a def stmt (includes TV or radio broadcasts). The π doesn’t need to prove special damages and gen damagers are presumed.

Question 36

Slander

Answer 36

Slander is spoken or verbal def. For slander, the π must prove special damages, which means the π has suffered some pecuniary loss as a result of the slander, except damages are presumed for slander per se

Question 37

Slander per se

Answer 37

Damages are presumed. Slander per se is est for language that:

(1) adversely reflects on the π’s fitness to conduct his bus or profession;
(2) alleges the π has a loathsome disease;
(3) imputes morally culpable crim behavior to the π; or
(4) imputes serious sexual misconduct to the π.

Question 38

Public Figure - Defamation

Answer 38

A π is a public figure when he has achieved pervasive fame or notoriety or vol assumed a role in a public controversy. When the π is a public figure, actual malice mb proven and then damages are presumed.

Question 39

Trespass to Land

Answer 39

Trespass to land is the intentional physical invasion of the land of another. Intent can be satisfied by the desire and purpose to voluntarily invade the land of another. However, ∆ need only intend to invade the land he actually invades, he need not intend to invade the land of another so a mistake as to land ownership will not provide a defense. Physical invasion does not req that the land be harmed by the invasion and includes entry onto another’s land w/o permission; remaining upon the land w/o the right tb there; or placing or projecting an object upon the land w/o permission.

Question 40

Breach

Answer 40

When the ∆’s conduct falls below the level req’d by the applicable standard of care, she has breached her duty.

Question 41

Respondeat Superior

Answer 41

An ER will be vic lia for torts committed by her EE w/in the scope of the employment relationship. ER will not be vic lia for torts of an IC, unless the IC engaged in inherently dangerous activities or the duty is nondelegable.

Question 42

Factors that make agent more likely tb an IC

Answer 42

(1) employment is for short and/or definite period;
(2) employment was for personal task of the principal rather than for her business;
(3) compensation was tasked based rather than time based; and
(4) parties didnt believe the arrangement tb an ER-EE relationship

Question 43

NIED

Answer 43

(1) πand person injured are closely related;
(2) πwas present at the scene of the injury; and
(3) πpersonally observed or perceived the event.

Question 44

Qualified Privilege - Defamation

Answer 44

Extends to stmts made to protect the publisher’s interest if the defamation relates directly to those interests or to act in the public interest.

Question 45

Con Law Defamation - Matter of Public Concern

Answer 45

If stmt involves a matter of public concern he must allege that the stmt was made w/ at min, neg as to its truth or falsity.

Question 46

Assumption of Risk

Answer 46

πmay be denied recovery if he assumed the risk of any damages caused by ∆’s act where he knew of the risk and voluntarily consented despite the risk.

Question 47

Ultrahazardous/Abnormally Dangerous Activities

Answer 47

An activity is abnormally dangerous if it is:

(1) an activity that creates a high degree of risk of serious harm;
(2) risk cannot be eliminated by the exercise of reas care;
(3) the activity is not common;
(4) the activity is not appropriate for the location; and
(5) danger outweighs the activity’s value to the community.

Question 48

Attractive Nuisance Doctrine - Standard of Care Owed By Landowners

Answer 48

A LO must exercise ordinary care to avoid foreseeable injury to children if:

(1) the LO knew or should have known that the area is one where children trespass;
(2) the condition poses and unread risk of serious injury or death;
(3) children dont discover the risk or realize the danger due to their youth;
(4) expense to the remedy the condition is slight compared to the risk; and
(5) LO fails to use reas care to eliminate the danger.

Question 49

Malicious Prosecution

Answer 49

(1) Institution of crim proceedings (and civil in most jdx) against π;
(2) Termination of proceedings in π’s favor;
(3) Absence of PC for the institution of the proceedings;
(4) Improper purpose of the accuser in bringing suit; and
(5) Damages suffered by the accused.