Torts

Question 1

Strict liability

Answer 1

there are only three ways a defendant can be strictly liable (i.e., liable without regard to fault
or intent):
1. by keeping a wild animal;
2. by conducting an abnormally dangerous activity; or
3. by selling a defective product (strict products liability)

Question 2

res ispa loquitor

Answer 2

It establishes a prima facie case of negligence only where direct evidence of the circumstances of the injury is lacking. If
you have direct evidence of how a result came about, res ipsa loquitur will not apply.
In order for res ipsa to establish a prima facie case of negligence, these
three elements have to exist: (1) the event causing injury would normally not have occurred in the absence of negligence; (2) the
defendant was in exclusive control of the instrumentality that likely caused the injury; and (3) the plaintiff must not have voluntarily
contributed to the event causing his injury

Question 3

Defamation

Answer 3

Show special damages ( economic damages like loss of job, inheritance gift etc.) for slander. Slander does not fall within the below 4 categories of slander per se:
not falling within any of the
following four slander per se categories:
1. statements accusing someone of a crime;
2. statements alleging that someone has a foul or loathsome disease;
3. statements adversely reflecting on a person’s fitness to conduct her business or trade; and
4. statements imputing serious sexual misconduct to someone (almost always to a woman).

B. Publication: Defamatory statements to be communicated to other than P. speaker needs to have spoken in front of someoneelse

C. Strict liability is not permitted: intended to communicate or negligent publication of statement to third person.Watch
out for situations where a third person learns of the statement through no fault of the defendant; in this situation, the plaintiff cannot recover damages for the defendant’s statement.

So if a defendant reasonably (but erroneously) believed the statement was true, he can’t be liable for negligence, and he therefore can’t be liable for defamation, even if the
plaintiff is a private figure suing over a private matter
In case P is a public figure and issue is of public interest, P has to prove that D knew statement was false or evidenced a reckless disregard of truth or falsity.The public figure
plaintiff (a category that includes a “candidate for high political
office,” as we have here) must show that the defendant made his statement with “actual malice.”

Question 4

Invasion of privacy

Answer 4

invasion of privacy is not a tort itself, but, rather, is an
“umbrella” tort covering four separate, distinct claims: (1) appropriation of plaintiff’s personality for a defendant’s own commercial advantage; (2) intrusion on a plaintiff’s affairs or seclusion; (3) publication of facts that place a plaintiff in a false light; and (4) public disclosure of private
facts about a plaintiff

Question 5

strict liability for products

Answer 5

DEFECT: The product must have been defective;
2. CONTROL: The defective condition must have existed when the product left the defendant’s control;
3. CHANGES: The product must not have been expected to
undergo significant changes before it got to the user (or, it must not actually undergo significant changes);
4. BUSINESS: The seller must be in the business of selling the
product (that is, he can’t be a casual seller or a user, even one
who uses the product while performing a paid service that does not incorporate a transfer of the product);
5. CAUSATION: Damage must result from the defect (a defendant is liable for any harm to persons or property);
6. NO PRIVITY: The defendant’s duty extends to anyone
foreseeably endangered by the product (this means there’s no
privity requirement).

compensate for damage caused by the extraordinary
risks created by certain enterprises. If the consequences are outside the extraordinary risk that created absolute liability, the defendant won’t be liable

Question 6

Negligence

Answer 6

The heart of proximate cause. Remember that intervening causes relieve the original tortfeasor of liability only if the results of the intervening causes are unforeseeable. Think of intervening causes as insulation, and decide whether they create enough of an insulating barrier to justify the
plaintiff’s not recovering.

For example: if D1 puts P in jeopardy, and D2 negligently
injures P while trying to rescue him, D2’s negligence won’t get D1 off the hook unless D2 has behaved really bizarrely — “danger invites rescue,” so D2’s negligent attempt at rescue will likely be viewed as a foreseeable consequence of D1’s placing P in danger.

Question 7

Proximate cause

Answer 7

If conduct is the proximate cause of damage, it must be a cause in fact as well. If there aren’t any intervening acts, proximate cause must exist (as long as the defendant was negligent, of course). In fact, the only time you should be concerned with proximate cause is when remote
possibilities are involved.

Question 8

assault

Answer 8

does not need actual physical contact or imminent apprehension of a harmful or offensive touching. It’s not enough that the plaintiff learns of the
threatened contact after the threat has passed — “An attempt to inflict a harmful or offensive contact or to cause an apprehension of such contact does not make the actor liable for an assault if the other does not become aware of the attempt before it is terminated.

Question 9

Rule of rescuer

Answer 9

Where the defendant’s negligence places one person at physical risk, it is quite foreseeable that another person might come to the rescue, and herself be injured. When this happens, the negligence by the defendant is deemed to be the proximate cause of the injuries to the rescuer

Question 10

Negligence and Strict liability: rental agency bomb no known threats

Answer 10

The fact that an activity is abnormally dangerous is only relevant to an action based on the special, narrow, doctrine imposing strict liability (not negligence liability) for conducting such abnormally dangerous activities. Second, even if we were not told that the suit was brought in negligence, the agency would still not be liable based on the abnormally dangerousness of the car, because this form of strict
liability applies only where the defendant intentionally carries out an activity known to be abnormally dangerous.

Question 11

pharmacy prescribed wrong dosage and man had a heart attack

Answer 11

but for cause: the much more straightforward theory on these facts is one based on negligence.
But no matter which of these two theories was used, the plaintiff would bear the burden of proving that the pharmacy’s error was the cause in fact of the heart attack. (If the man would probably have had a heart attack anyway, even without the error, then no matter how negligent the error was, and/or no matter how “defective” the product
was under a strict liability theory, there could be no recovery

Question 12

Common carriers

Answer 12

Common carriers (including airlines) are required to exercise a
very high degree of care toward their passengers and guests, which is to say they are liable for even slight negligence. But they do not have strict liability.

Question 13

Privilege of necessity

Answer 13

First, a person has the privilege of “private necessity” to enter
another’s land, if that entry is or reasonably appears to be necessary to prevent serious harm to the person or his chattels
the owner was under a duty to allow the entry to
continue until the danger had passed
the possessor of the land is under a duty to permit him to
come and remain there and hence is not privileged to resist his entry

Question 14

Hotel/business premises possesor duties

Answer 14

First, all courts agree that when a business or other land-possessor holds its land open to the public, the land-possessor owes the public a duty to use reasonable care to keep the property in a safe condition.

That duty cannot be delegated to an independent contractor who will do repairs, at least if the possessor retains possession of the premises during the repair activity

An invitee is a person who enters onto the premises in response to an express or implied invitation of the landowner. The landowner owes the invitee a general duty to use reasonable and ordinary care in keeping the property safe for the benefit of the invitee. That duty includes the duty to inspect for and correct hidden dangers and
defects

Question 15

Pure contributory negligence
Joint and several liability

Answer 15

When we say that “pure comparative negligence” applies, we
mean that the plaintiff’s recovery will be reduced “in proportion to the share of responsibility the factfinder assigns to the plaintiff.” Rest. 3d (Apport.), § 7

Next, when we say that there is “joint and several liability,” we
mean that “the injured person may sue for and recover the full amount of recoverable damages from any jointly and severally liable person.” Rest. 3d (Apport.), § 10

Question 16

Conversion

Answer 16

Conversion is “an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.” Rest. 2d Torts § 222A. One form of conversion occurs when a person is initially legitimately in possession of the chattel, but then unjustifiably refuses to return it upon rightful demand by the owner. Id. at § 237
you pay the full value of chattel and then

Question 17

Can auctioneer be considered a seller for purposes of strict liability

Answer 17

Strict liability, as usually imposed, applies only against one who is “engaged in the business of selling” the type of product involved. A court would almost certainly conclude that an auctioneer acting at the behest of a creditor to sell various mortgaged items, one of which happens to be a tractor, is not “engaged in the business of selling” tractors.

Question 18

Private nuisance

Answer 18

enjoyment and interference with private property is substantial so you need not show value is diminished.
The way you analyze this,Since the
interference with plaintiff’s use of his land must be “unreasonable,” the severity of the inflicted injury must outweigh the utility of the defendant’s conduct. You do a cost benefit analysis

Question 19

reporter accurate and fair reporting when is privacy intruded

Answer 19

the reporter has the privilege of making a fair and accurate
report of the events of a public proceeding. the privilege to give a truthful report of matters discussed at a public meeting exists independently of whether the speaker (or the person on whose behalf the speaker spoke) consented.
A plaintiff must show two elements: (1) that defendant published private information about defendant, and (2) that the matter made public is one that a reasonable person would object to having made public

Question 20

negligence per se

Answer 20

1.The statute provides for a criminal penalty;
2. The statute was formulated to prevent the kind of harm suffered by the plaintiff;
3. The plaintiff is a member of the class the legislature intended to protect with the statute; and
4. The statute is clear as to the standard of conduct expected, and from whom and when.

Question 21

Landowner-Trespasser duty

Answer 21

The general rule is that a landowner owes no duty to a trespasser to make his land safe, to warn of dangers on it, to avoid carrying on dangerous activities on it, or to protect the trespasser in any other way.
The most important exception to the general rule of non-liability to trespassers is that once the owner has knowledge that a particular person is trespassing on his property, he is then under a duty to exercise reasonable care for the latter’s safety.
ex vitner balloon and trespasser he had no knowledge that the trespasser was present in the premises

Question 22

Intentional infliction of emotion distress and defense to IIED

Answer 22

(1) an act by the defendant amounting to extreme and outrageous conduct;
(2) intent on the part of the defendant to cause the plaintiff to suffer severe emotional distress, or recklessness as to the effect of the defendant’s conduct;
(3) causation; and
(4) damages.
no reasonable person could conclude that the conduct here satisfied requirement (1)’s “extreme and outrageous conduct” standard
Physical injury suffered by a plaintiff is not an element of the
prima facie case for intentional or reckless infliction of emotional distress.
because the law does not recognize a claim for damages for emotional distress incident to negligently caused property loss

Third parties can recover for emotional distress, where someone else is intentionally physically harmed, if:
1. They are present for the physical harm;
2. They are closely related to the injured person; and
3. The actor knows of the third party’s presence, and must be able to reasonably anticipate the third party’s distress that will result from the actor’s conduct.

Question 23

Negligence per se

Answer 23

The “negligence per se” doctrine states that when a safety rule has sufficiently close application to the facts of the case at hand, an unexcused violation of that statute is “negligence per se.” However, even where the statute is applicable to the facts of the case, the“negligence per se” does not make the defendant liable unless the plaintiff shows that there is a causal link between the act constituting
the violation and the resulting injury. Here, since the presence of the boats would have made no difference, this causal relationship is lacking.

Question 24

Misrepresentation

Answer 24

This qualifies because it satisfies all
the requirements of a misrepresentation:
1. Defendant’s misrepresentation of a material past or present fact;
2. Defendant’s knowledge of falsity or reckless disregard for
falsity;
3. Defendant’s intent to induce plaintiff’s reliance;
4. Plaintiff’s actual, justifiable reliance; and
5. Damages

misrepresentation requires some form of
active concealment beyond mere silence. Exceptions to this rule
include:
1. An affirmative duty to disclose (due to a half-truth, subsequent
information making the prior statement misleading, or
knowledge of undisclosed facts basic to a transaction);
2. The plaintiff’s specific query about the matter; or
3. Existence of a special (e.g., fiduciary) relationship between the
parties.

Question 25

Duty owed to forseeable P’s

Answer 25

This means that a duty of care is owed if a defendant engages in conduct that creates a risk of foreseeable harm to a person in the particular plaintiff’s position. In addition, if a defendant’s negligent act injures someone or places someone in danger, the defendant generally owes a duty not only to that person, but also to any rescuer who attempts to help the injured or imperiled person. This is because it is always foreseeable that someone will come to the aid of another who is in distress. Exceptions to this rule are sometimes made if the rescuer recklessly disregards his or her own safety, or if the rescuer is obligated to assist the person in distress (e.g., firefighters or police officers are injured aiding someone in the course of their duties).

Question 26

Does a person owe duty to rescue

Answer 26

Under either of these views, the defendant must be engaged in an activity or conduct of some kind that creates a foreseeable risk of harm to someone. Here, the woman doesn’t appear to have been engaged in any conduct at all by merely sitting on the park bench. At any rate it is unlikely that she was engaged in conduct that a reasonable person would foresee could harm someone.

An affirmative duty to act may be imposed where (1) there is a special relationship between the parties, such as a teacher’s relationship to a student, or (2) one has promised to aid another in danger or has begun to aid another in danger, in which case the duty would be to follow through and render non-negligent aid.

Question 27

Reasonable care offered by child

Answer 27

One of the elements of an ordinary negligence claim is whether the defendant acted with reasonable care under the circumstances. This means, in a negligence action, courts generally measure the defendant’s conduct against that of a reasonable man. If a child is engaged in an activity typically only engaged in by adults, and if the activity is one that creates a significant risk of harm to others, then the child is held to the adult standard of care. Adults are held to an objective reasonable-person standard of care in negligence lawsuits

Question 28

reasonable standard care

Answer 28

his means, in a negligence action, courts generally measure the defendant’s conduct against that of a reasonable man. Although a reasonable man is deemed to have the same physical characteristics as the defendant, a reasonable man is not always deemed to have the same mental characteristics as the defendant. Rather, the reasonable man is always deemed to be sane and have the intelligence and knowledge of at least an average person. Thus, even if the defendant is insane, has below-average intelligence, or knows less than the average person, the defendant might still be expected to conform his conduct to that of a person of average intelligence, knowledge, and sanity. However, one exception to this general rule is if the defendant can show that he has a genuine mental disability, especially one linked to a biological or physiological cause, like a traumatic brain injury. Because the reasonable man is deemed to have the same physical characteristics as the defendant, if the defendant has a physical condition or disease that causes a mental disability, then that disability should be considered when determining what a reasonable man is for that case.