Torts Flashcards
State the negligence test entirely and accurately.
1) Unreasonable; 2) Breached to foreseeable; 3) Breach caused injury
A defendant must (1) fail to exercise such care as a reasonable person in his position would have exercised; (2) his conduct must be a breach of the duty to prevent the foreseeable risk of harm to anyone in the plaintiff’s position; and (3) this breach must cause the plaintiff’s damages.
What are the four requirements for Res Ipsa Loquitur to apply?
1) no direct evidence of how D behaved in connection with the event
2) the event causing injury would not normaly occur without negligence
3) D was in exclusive control of the key instrumentality; and
4) Plaintiff does not voluntarily contribute to the event.
Is slander oral or written?
Slander is oral defamation.
Is libel written or oral?
Libel is written defamation.
When is the only situation where a P must prove special damages in a defamation claim?
Only when there is a slander and the statement does NOT fall in the following Slander per se:
1) accusing of a crime
2) accusing of a foul or loathsome disease
3) accusing of unfit to conduct business
4) accusing of serious misconduct
What is the advantage of a P suing for Libel or Slander per see instead of a “regular slander”?
P doesn’t need to prove special damages.
What is special damage?
Pecuniary damages as loar job, inheritance, gift, customer, etc.
Is there strict liability in defamation cases?
No. P always need to prove that D either intended to publicize or negligently publicized the statement.
How does truth apply to a defamation claim?
Truth is a complete defense to defamation.
Invasion of privacy is a tort umbrella to which types of claims?
1) P’s personality appropriation for profit
2) Affairs or seclusion invasion
3) Facts placing P in false light
4) Private facts disclosure
Three only instances of strict liabiliity?
1) keeping a wild animal (or domestic known dangerous)
2) Abnormally dangerous activity
3) Defective product
Product liability 6 must knows?
1) Defect
2) Exclusive control
3) Not substantially changed
4) In the business of selling the product
5) Causation
6) No privity needed
3 types of product liability claims?
1) Strict product liability
2) Breach of warranty
3) Negligence
Easiest to prove product liability claim?
Strict product liability since D can be liable for defects created by those who came before him.
In product negligence claims what is the importance of how obvious the defect was?
D cannot be liable for product negligence unless the defect was discoverable by reasonable means.
What happens if customer doesn’t install a known available safety add-on?
Purchaser may be found at fault for not installing reducing liability in a comparative-fault jdx.
In which two types of product liability claims privity does not matter?
In strict liability and negligence.
What is the minimal damage required for an IIED claim?
emotional distress
When mishandling of a corpse may hold D liable?
When mental distress results from the intentional or reckless mishandling of a relative’s corpse.
How customs are applicable to negligence cases?
Customs may be considered, but they are never dispositive of a case.
How is Nuisance qualified?
Nuisance is a D’s unreasonable interference with
P’s use or enjoyment of property. Examples include
noise, light and odors.
What are the factors analyzed when deciding a nuisance claim?
1) Harm/Utility Balance
2) Res/Comm area
3) Freq/time of day
4) Substantial to average person in the community.
5) Loss of use or enjoyment needed
How is compliance with a required statute applicable to negligence cases?
Compliance with a statute is relevant but not conclusive. A reasonable person may have to go beyond a statute’s requirements.
How is P’s secondary injury resulting from a primary injury caused by D qualified in torts?
Uninterrupted chain of events -> direct cause -> proximate cause
Proximate cause can be proven by direct cause, where there is an
uninterrupted chain of events from the time of the D’s negligent act to the time of P’s injury.
Does strict liability apply to services?
No, strict liability does not apply to services.
Is there strict liability for unavoidably unsafe products?
No, there is no strict liability for unavoidably unsafe products. Examples include knives and many drugs.
Does strict liability recovers economic damages?
No, strict liability recovers for only physical injury and property destruction.