Torts

Question 1

Vicarious Liability for independent contractors

Answer 1

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.

Ex: If the workers, independent contractors, were negligent in leaving the ramp blocked without providing another means of exiting, the fact that they were not city employees would not absolve the city of liability; hence, their identity would be of no help to the city’s defense.

Question 2

Wrongful death

Answer 2

Can only be nought to the extend the deceased could have recovered in a personal injury action had he lived.

Question 3

Interesting:

Answer 3

The captain’s estate can recover from the dealer on a strict products liability ground because the captain was a foreseeable bystander and the dealer is a commercial supplier. Recovery in a wrongful death action is allowed only to the extent that the deceased could have recovered in a personal injury action had he lived. The captain could have recovered from the dealer in a products liability action based on strict liability because the dealer is a commercial supplier of the boat and is liable if it sold a product that was so defective as to be unreasonably dangerous. The defect in the assembly of the gas tank was unreasonably dangerous because it allowed gas to leak out and collect where it could be ignited. The dealer would be liable to the captain, despite the fact that he was not in privity with the dealer, because he was a foreseeable plaintiff. The disabling effect of the gas leak made it foreseeable that someone passing by would come to the boater’s assistance and thereby come within the zone of danger from the leak (i.e., danger invites rescue). The explosion that resulted from the leak was the actual and proximate cause of the captain’s death. Therefore, the captain’s estate can recover damages from the dealer.

Question 4

Dram shop act

Answer 4

CL: no liability for tavernkeepers for torts committed by patrons

Modern law: Many states, in order to avoid this common law rule, have enacted Dramshop Acts. Such acts usually create a cause of action in favor of any third person injured by the intoxicated patron. (tavernkeeper liable under vicarious liability)

Modern law w/o dramship act: Several courts have imposed liability on tavernkeepers even in the absence of a Dramshop Act. This liability is based on ordinary negligence principles (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liability.

Question 5

Emotional Distress

Answer 5

While recovery for emotional distress is restricted when there is no other injury caused by the breach, these restrictions do not apply when plaintiff is the victim of another tort that causes physical injury. Plaintiff can recover damages for emotional distress that arise from the tortious conduct.

Question 6

Implied warranty of merchantability

Answer 6

• In every sale of goods, unless expressly disclaimed, there arises a warranty that the goods will be merchantable, which means that they will be fit for the ordinary purposes for which such goods are used
• To be merchantable, goods must be adequately contained, packaged, or labeled according to the contract and must conform to any promises or affirmations of fact made on the label.
• **This is an absolute liability argument, not negligence.
• DISCLAIMER: to be effective, a disclaimer must be part of the offer and acceptance process or must be agreed to by the buyer as a modification. Here, the “disclaimer” was in the box, and the consumer did nothing to accept the disclaimer.

Question 7

Rescuers

Answer 7

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

Question 8

Parents’ liability for their children

Answer 8

• At common law, parents are not vicariously liable for the torts of their child. (Statutes in most states allow for limited liability for intentional torts, but there is no indication of such a statute here.)
• Parents can be liable, however, for their own negligence, i.e., in not exercising due care under the circumstances. Thus, if the parents know their child may be violent, they could be negligent if they do not take precautions to prevent that behavior or injury from that behavior. However, if the parents have no reason to know their child could be violent, they have no duty to protect against such behavior.

Question 9

IIED

Answer 9

Intentional infliction of emotional distress requires:

(i) an act by defendant amounting to extreme and outrageous conduct;
(ii) intent to cause severe emotional distress or recklessness as to the effect of defendant’s conduct;
(iii) causation; and
(iv) severe emotional distress-damages.

Exception: plaintiff claiming IIED based on actions directed towards third-party

Must demonstrate:

(1) the plaintiff was present when the injury occurred to the other person; (2) the plaintiff was a close relative of the injured person; and (3) the defendant knew that the plaintiff was present and a close relative of the injured person

Question 10

Trespass to Land

Answer 10

The tort of trespass to land requires:

(i) an act of physical invasion of the plaintiff’s real property by the defendant,
(ii) intent by the defendant to bring about a physical invasion of the property, and
(iii) causation.

The intent required is the intent to enter on a particular piece of land, rather than intent to trespass. Also, it is not necessary that the defendant personally enter the land. It is sufficient if the defendant’s act or something set in motion thereby causes a physical invasion of the property.

Question 11

Conversion

Answer 11

(i) an act by defendant interfering 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-an interference that is serious enough in nature or consequence to warrant that the defendant pay the full value of the chattel.

Question 12

Duty of Rescuers

Answer 12

1. As a general rule, no legal duty is imposed upon any person to affirmatively act for the benefit of others. However, one who gratuitously acts for the benefit of another, although under no duty to do so in the first instance, is then under a duty to act like a reasonable person.
2. Many states have “Good Samaritan” statutes that exempt those who gratuitously render emergency assistance from liability for other than gross negligence, but most of these statutes apply only to health care providers rendering emergency medical assistance.

Question 13

Intervening forces and negligent acts of third parties

Answer 13

The homeowner will prevail because the maid’s negligence increased the risk of criminal conduct by a third party. Criminal acts and intentional torts of third persons are foreseeable intervening forces if the defendant’s negligence created a foreseeable risk that they would occur.

Question 14

Common carriers/inkeepers

Answer 14

Liable to passengers only

have a very high duty of care, so even slight negligence will cause a breach

Question 15

Firefighter’s Rule

Answer 15

As a general rule, a defendant is liable if he negligently puts himself in peril and the plaintiff is injured in attempting a rescue. However, the “firefighters’ rule” will bar firefighters and police officers, on public policy or assumption of risk grounds, from recovering for injuries caused by the risks of a rescue.

Language Barbri used: rule applies if inherent and foreseeable risk of the job.

Question 16

Assumption of Risk

Answer 16

Express assumption of risk is a complete defense.

Implied assumption of risk is analyzed as either: (1) a limitation on the duty owed to the plaintiff (meaning the defendant does not owe a duty to protect the plaintiff against known risks such as being hit by a foul ball at a baseball game); or, more commonly, (2) contributory negligence (meaning, the plaintiff unreasonably encountered a known risk, thereby reducing or barring their damages under the state’s comparative negligence rules).

Question 17

Slander per se + damages

Answer 17

As long as it is understood in its defamatory sense, an accusation need not be believed to be actionable. Because the statement that he was stealing at his job constituted slander per se, damages are presumed, completing the prima facie case. Nevertheless, the stated fact will diminish the amount of damages that the man will recover because his reputation was not likely harmed in the eyes of his boss. (A) is wrong because, as stated above, the man can establish a prima facie case for defamation even though the defamatory statement was not believed. (B) is wrong because actual injury encompasses not only damage to reputation but also humiliation and mental distress, for which the man could recover even if his reputation was not damaged. (D) is wrong because the fact that the new boss did not believe the statement does not prove lack of basis for the girlfriend to have made it.

Question 18

Actual malice

Answer 18

defined as knowledge that the statement was false or reckless disregard as to truth or falsity. Reckless conduct is not measured by whether a reasonable person would have investigated before publishing; rather, there must be a showing that the defendant in fact (subjectively) entertained serious doubts as to the truthfulness of his publication.

Question 19

False Light (Invasion of Privacy Tort)

Answer 19

To establish a prima facie case for invasion of privacy based on publication by defendant of facts placing plaintiff in a false light, the following elements must be proved:

(i) publication of facts about plaintiff by defendant placing plaintiff in a false light in the public eye; and
(ii) the “false light” must be something that would be highly offensive to a reasonable person under the circumstances.

Question 20

Intrusion upon seclusion

Answer 20

This branch of invasion of right to privacy, intrusion upon plaintiff’s affairs or seclusion, requires

(i) an act of prying or intruding on the affairs or seclusion of plaintiff by defendant;
(ii) the intrusion must be something that would be highly offensive to a reasonable person; and
(iii) the thing to which there is an intrusion or prying must be “private.

Question 21

Appropriation for commercial purposes

Answer 21

It is necessary to show unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage. Liability is generally limited to advertisements or promotions of products or services.

**Mere economic benefit to the defendant (not in connection with promoting a product or service) by itself is not sufficient. (as in a newspaper, if its not an advert)

Question 22

Duty to prevent third-party from injuring another

Answer 22

1. Generally no duty to prevent a third person from injuring another
2. such a duty will be imposed when (A) the defendant had a special relationship with third person that gave the defendant the actual ability and authority to act, (B) and the defendant knew or should have known that the third person was likely to injure the other person.

Question 23

Last clear chance doctrine

Answer 23

A PLAINTIFF’s rebuttal to a defendants claim that P was contributorily negligent

Question 24

Strict Liability: Products Liability

Answer 24

A products liability action based on strict liability requires the following:

(i) the defendant is a commercial supplier;
(ii) the defendant produced or sold a product that was defective when it left the defendant’s control;
(iii) the defective product was the actual and proximate cause of the plaintiff’s injury; and
(iv) the plaintiff suffered damage to person or property.

Note: a plaintiff is entitled to the presumption that, if the warning label included X, they would have heeded the warning.

Question 25

Strict Liability: Abnormally Dangerous Activity

Answer 25

1. the activity must create a foreseeable risk of serious bodily harm, even when reasonable care is exercised by all actors.
2. The activity is not a manner of common usage in the community.

• Contributory negligence is a defense
• Assumption of risk is an affirmative defense!

Question 26

Multiple Defendants

Answer 26

Generally:

• A plaintiff has the burden of proving that the defendant breached a duty owed to the plaintiff and that the breach of duty caused the P’s injury.
• If multiple defendants are acting in concert or jointly engaging in tortious conduct, all of the D’s can be held jointly and severally liable for injury.
• Even if using Res Ipsa, generally must establish evidence connecting a particular defendant to the negligent conduct.

Multiple causes:

If there are two or more defendants, use the substantial factor test. If the D’s breach was a substantial factor in causing the harm, the defendant is liable.

Alternative causes:

plaintiff must show that all potential defendants are joined in the lawsuit and all defendants are negligent. Burden will then shift to each defendant to show its breach of duty was not the actual cause (but for cause) of the harm.

Question 27

Indirect Causes

Answer 27

In indirect cause cases, where a force came into motion after defendant’s act and combined with it to cause injury to plaintiff, defendant will still be potentially liable for foreseeable intervening forces that are within the increased risk caused by his acts. Even if the intervening force is independent (i.e., not a natural response or reaction to the situation), it will be foreseeable where defendant’s negligence increased the risk that the independent force would cause harm.

Question 28

Negligence per se

Answer 28

A statute may establish the standard of care in a negligence case if (i) the plaintiff is in the class intended to be protected by the statute, and (ii) the statute was designed to prevent the type of harm that the plaintiff suffered

**while the violation of an applicable statute establishes a conclusive presumption of duty and breach, compliance with the statute does not establish a conclusive presumption of due care–if there were unusual circumstances or increased danger beyond the minimum that the statute was designed to meet, it may be found that there is negligence in not doing more.