Torts

Question 1

Torts

Analytical Approach

Answer 1

Overall Approach
1. Divide first by parties, THEN
2. Within each party/group, in order, list each tort and the appropriate defenses

When Call of Question Focuses of Defense or Specific Issue
* Start by discussing the relevant cause of action in full, THEN
* use separate major headings for each call of the question–answer all specifically

Discuss defenses only after discussing all the torts by a particular party

Question 2

Torts - Vicarious Liability

Vicarious Liability

Guidelines/Analytical Approach

Answer 2

This is an agency issue that comes up in Torts
.
Discuss VL before analyzing the torts (unless otherwise directed by the call of the question)
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1. the principal is only liable if. . .
2. detour v. frolic
3. [employee tort analysis]

Employee Negligence
Principals are vicariously liable for the negligence of their employees while the employee is acting within the scope of their agency.

Principals are liable for employees’ negligent acts when the act was a detour from their agency, but not when it is a frolic.
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Independent Contractor
Principals are not generally liable for the torts of independent contractors, UNLESS
1. The independent contractor is engaged in inherently dangerous activities, OR
2. The duty is nondelegable
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Inherently Dangerous Activity generally refers to blasting

Nondelegable duty generally means maintenance of something (like a car or floors etc)
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Intentional Torts
A Principal is liable for the intentional torts of agents (employees and independent contractors IF
1. force is authorize by employment,
2. friction is generated by employement, OR
3. the agent is furthering the business of the principal AND acting with express, implied, or apparent authority

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Agent Liability
Not a Defense for Agent
An employee is not absolved of liability simply because the employer is also liable, they are generally both liable
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Agent Liable to Principal in Indemnity
Under common law, employees are liable to the plaintiff AND liable to the principal in indemnity.

Question 3

Torts - Intentional Torts

General Requirements

Answer 3

All intentional torts require:
1. Volitional Act
2. Intent to do the act (not necessarily the harm)
3. Causation

Question 4

Torts - Intentional Torts

Intent

Answer 4

Intentional torts require intent to bring about the forbidden consequence, not the intent to cause the tort itself or the particular harm
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Transferred intent applies where the defendant intends to commit a tort against one person but instead:

1. commits a different tort against the same person,
2. commits the same tort against a different person, OR
3. commits a different tort against a different person

In which case, the intent to commit a tort against one person is transferred to the other tort or injured person for the purpose of establishing a prima facie intentional tort

Applies to FIVE Torts:

1. Assault
2. Battery
3. False Imprisonment
4. Trespass
5. Trespass to Chattels

Question 5

Torts - Intentional Torts

Causation

Answer 5

Defendant’s act must be the cause of plaintiff’s harm.

Proximate cause is generally not an issue with intentional harm.

Factual cause is established where defendant’s conduct is a substantial factor in bringng about plaintiff’s injury

Question 6

Torts - Intentional Torts

Assault

Factors

Answer 6

To establish a prima facie case for assault, there must be:
1. a volitional act
2. with intent to cause either
* harmful or offensive contact, OR
* apprehension of imminent harmful or offensive contact,
3. that actually or proximately causes the reasonable apprehension of harmful or offensive contact.

NOTE: Actual harm is not required for nominal or punitive damages
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Reasonable Apprehension
1. An immediate expectation of physical contact (not limited to fear)
2. That is reasonable (not exaggerated fears of contact–ignore hypersensitivity)
3. The plaintiff is aware of the threat from defendant
4. Defendant has the apparent ability to commit battery
5. More than just words alone (but words can negate a reasonable apprehension)

Question 7

Torts - Intentional Torts

Battery

Answer 7

To establish a prima facie case for battery, there must be:
1. a volitional act
2. with intent to cause either
* harmful or offensive contact, OR
* apprehension of imminent harmful or offensive contact,
3. that actually or proximately causes harmful or offensive contact.

Question 8

Torts - Intentional Torts

Offensive & Harmful Contact

Offensive Contact

Answer 8

Offensive Contact
Contact is offensive if it would be offensive to a reasonable person (objective test).

Contact is only offensive if it has not been permitted.

NOTE: there is implied consent to the ordinary contact of everyday life (not unreasonable)
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Harmful Contact
Actual injury, pain, or disfigurement.

Includes even the slightest physical change in condition
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Indirect Contact
1. Causing contact with something else (Ex. Forcing someone to move out of your way and then they get hurt)
2. Causing contact with an item in close physical connection (Ex. hitting something out of someone’s hand without actually touching them.

Question 9

Torts - Intentional Torts

False Imprisonment

Answer 9

To establish a prima facie case of false imprisonment, there must be:
1. an act intending to confine someone within boundaries fixed by the actor
2. directly or indirectly resulting in confinement, AND
3. the confined person is either aware of or harmed by the confinement.

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Confinement
To constitute confinement, there must be no reasonable means of escape.
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Includes:
1. Denial of the means to leave the boundaries set by the defendant,
2. Threats of immediate force,
3. Failure to release the plaintiff while under a duty to do so (Ex. cab driver)
4. Invalid use of legal authority (False Arrest)

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Does NOT Include:
* moral pressure or future threats.
* length of time is irrelevant
* walls are not required

Question 10

Torts - Intentional Torts

Trespass to Chattels & Conversion

Prima Facie Factors, Requirement, & Remedial Options

Answer 10

To establish a prima facie case for trespass to chattels or conversion, there must be:
1. An act of intermeddling (directly damaging) OR dispossession (depriving the right of possession,
1. Of the personal property of another
1. That causes harm to, or the loss of use of, the personal property.

Requires: Actual Damage required.
* Dispossession = Damage.
* No dispossession = must have actual damage to chattel

Does NOT Require: Intent to trespass (can be mistake)

Remedies: Damages or Replevin. Restitution in conversion when chattel is sold to another.
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Conversion
Conversion requires that the intereference be serious enough to warrant requiring the defendant to pay the full value of the chattel at the time of conversion.

Question 11

Torts - Intentional Torts

Conversion

Answer 11

Conversion requires that the intereference be serious enough to warrant requiring the defendant to pay the full value of the chattel at the time of conversion.

Question 12

Torts - Intentional Torts

Intentional Infliction of Emotional Distress

Answer 12

Establishing a prima facie case for IIED requires:
1. An act that constitutes extreme and outrageous conduct
2. That caused severe emotional distress
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Extreme & Outrageous Conduct
Extreme and outrageous conduct is conduct that trancends the bounds of all human decency.

Conduct not normally considered extreme and outrageous may be considered extreme and outrageous if it is:
1. Continous in nature
2. Commited by a certain kind of defendant, OR
3. Directed towards a certain kind of plaintiff (Ex. Children, elderly, persons with known sensitivities)

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Third Party IIED
To establish a prima facie case of third party IIED:
1. The third party must be present when the injury occured
2. The distress resulted in bodily harm OR the plaintiff is a close relative of the third party, AND
3. The defendant was aware of these facts.

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Damages Requirement
Actual damages are required (no nominal damages)

The more outrageous the conduct, the less proof of damages needed.

Physical harm is not required (only required for NIED)

Question 13

Torts - Intentional Torts

Abuse of Process

Answer 13

To establish a prima facie case of abuse of process, there must be:
1. Use of a legitimate civil process (service, filing of complaint, discovery, etc)
2. For a wrongful purpose (harassment, waste time, etc), AND
3. An act or threat against the plaintiff to accomplish the wrongful prupose.

The purpose is to prohibit any use of any form of process

Question 14

Torts - Intentional Torts

Malicious Prosecution

Answer 14

To establish a prima facie case for malicious prosecution, there must be

1. Initiation of civil, administrative, or criminal proceedings
2. Without Probable Cause
3. for a wrongful purpose, and
4. the favorable termination of the proceedings on the merits in favor of the current plaintiff.

.

Favorable Termination

• Includes dismissal with prejudice.
• Is satisfied when the malicious prosecution ends favorably for the nonmalicious party
  .

Biggest Defense: Attack probable cause
.

Lawyer Liability: The lawyer may be held liable if no reasonable attorney would sue on the basis of the claim brought.

Question 15

Torts - Defenses to Intentional Torts

Consent

Umbrella Rule, Scope, & Capacity to Consent

Answer 15

Plaintiffs consent to Defendant’s conduct is a defense.
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The majority view is that one cannot consent to a crime.
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Scope of Consent
Defendant may be liable if they exceeded the scope of consent given to them.
.
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Capacity to Consent
Those **without capacity ** are deemed incapable of consent (drunks, very young children, etc)
Those with limited capacity can consent to things within the scope of their understanding (older children, mentally disabled persons, etc)
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Express Consent
Defendant is not liable if Plaintiff expressly consents to Defedant’s conduct, UNLESS

1. Plaintiff was mistaken and Defendant knowingly took advantage
2. Consent was induced by fraud regarding an essential matter (not collateral); OR
3. Consent was obtained by duress (not including economic duress or future threats).

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Apparent Consent
Apparent consent is consent that a reasonable person would infer from custom and usage or Plantiff’s conduct

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Consent Implied by Law
Consent is implied by law when the action is necessary to save a person’s life or some other important interest in persons or property

Question 16

Torts - Defenses to Intentional Torts

Protective Privileges

List

Answer 16

1. Self Defense
   
   • Initial Aggressor
   • Third Party Injuries
   • Mistake
   • Reasonably Necessary Force
2. Defense of Others
3. Defense of Property
   • Hot Pursuit
   • Privilege
   • Reasonable Force

Question 17

Torts - Defenses to Intentional Torts

Protective Privilege:
Self-Defense

Umbrella Rule & List

Answer 17

If Defendant reasonably believes Defendant is being attacked or is about to be attacked, they may use force reasonably necessary to defend themselves.
.

Majority Rule: No duty to retreat
.

Modern Trend: Duty to retreat before using deadly force if it can be done safely (unless Defendant is in their own home)
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Subrules
1. Initial Aggressor
2. Third-Party Injuries
3. Mistake
4. Reasonably Necessary Force

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Initial Aggressor
The protective privilege of self-defense is not available to the initial aggressor, UNLESS the other party responds to the initial aggressor’s nondeadly force with deadly force.
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Third-Party Injuries
The protective privilege of self-defense is available to the defendant when they injure a third person while trying to defend themselves.
(Third person uses transferred intent)
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Mistake
The protective privilege of self-defense may be available where the defendant was reasonably mistaken as to the existence of danger.
(applies also to the defense of others)
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Reasonably Necessary Force
Reasonably necessary force includes deadly force only when necessary

Question 18

Torts - Defenses to Intentional Torts

Protective Privilege:
Defense of Others

Answer 18

A person may use force to defend another person if they reasonably believe the other pwerson could have used force to defend themselves

Question 19

Torts - Defenses to Intentional Torts

Protective Privilege:
Defense of Property

Answer 19

A person may use reasonable force to prevent a tort against their personal or real property, BUT must first request to desist or leave, UNLESS it would clearly by futile or dangerous.
.
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A person may use deadly force to defend property ONLY when there is a serious threat of bodily harm, which extends to deadly mechanical devices or traps.
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Subrules
1. Hot Pursuit
2. Privilege
3. Reasonable Force

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Hot Pursuit
Hot pursuit cannot be used as a defense if the tort has already been committed
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However an owner can use force while in hot pursuit of another who tortiously dispossessed chattel because the tort is still ongoing while the tortfeasor is fleeing.

An owner can only use peaceful means to recapture chattels if their own possession began lawfully
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Priviliege
Defense is not available to a person with privilege, necessity, recapture of chattles, etc.. (Supersedes right to defend land).
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Reasonable Force
A person can use reasonable force but cannot use deadly force to defend property UNLESS invasion of privacy also entails serious threat of bodily harm. Extends to deadly mechanical devices or traps

Question 20

Torts - Defenses to Intentional Torts

Defenses to False Imprisonment

Answer 20

Shopkeeper Privilege

1. A shopkeeper
2. With reasonable grounds to believe a person has committed theft
3. May detain a person
4. For the purpose of making an investigation
   • for a reasonable time and
   • in a reasonable manner (no deadly force)

.
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Crime Prevention (by a Private Person)
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Misdemeanor
Private persons may arrest someone for misdemeanor if

1. They have a reasonable belief that a crime has occured that involves a breach of the peace, AND
2. IT has been committed in their presence

.
Felony
Private persons may arrest someone for felony if they have reasonable grounds for believing the felony has been committed.
(no in the presence requirement)

Question 21

Torts - Defenses to Intentional Torts

Necessity

Answer 21

A person may interefere with personal or real property of another when reasonably and apparently necessary in an emergency to avoid injury from natural or other force which would be substantially more serious than the evasion taken to evade it.
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Public Necessity
Public necessity is a complete defense when it is to avert an imminent public disaster
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Private Necessity
Private necessity may be a defense to an intentional tort when the action was taken to prevent serious harm to a limited number of persons.
The actor must still pay for injury caused, UNLESS the act was to benefit the property owner.

Question 22

Torts - Negligence

Umbrella Rule

Answer 22

To establish a prima facie case for negligence, the plaintiff must show:
1. Duty
2. Breach
3. Actual Cause
4. Proximate Cause
5. Harm

Question 23

Torts - Negligence

Duty

List

Answer 23

1. Default Duty of Care
2. Children
3. Professionals
4. Possessors of Land
5. Special Duty Issues
6. NIED

Question 24

Torts - Negligence

Default Duty of Care

Answer 24

When a person engages in an activity, they owe to foreseeable plaintifffs a duty of care to act as a reasonably prudent person
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Mental Deficiency; Physical Characteristics; Superior Skills
Although mental deficiencies and inexperience are not considered,
Physical characteristics (blindness) can be considered relevant.
Persons with superior skills are required to exercise it
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Unforseeable Plaintiffs
If the plaintiff is not a foreseeable plaintiff (not in the “danger zone” of the negligent act), discuss the Cardozo/Andrews split under duty:
* Majority View: Under Cardozo’s view, the duty of care is owed to foreseeable plaintiffs–those who are in the **zone of danger **of the negligent act
* Minority View: Under Andrew’s view, the duty of care is owed to anyone, and foreseeability is an issuer of whether policy or other considerationsmake the chain of causation too attenuated to be foreseeable.
* Unforseeable Harm: Discuss unforeseeable plaintiffs in duty. Discuss unforseeable harm in proximate cause.

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Criminal Act
Generally, there is no duty to foresee a criminal act unless breach of duty itself forseeably increases risk of criminal act occurring
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Multiple Types of Duty
Possible to discuss multiple types of duty. Discuss all applicable duties after the ordinary duty under the duty header.
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Specific Duty
Not enough to say “defendant had a duty to act responsibly, instead say: “defendant had duty to drive vehicle reasonably to avoid injuring drivers, pedestrians, or property

Question 25

Torts - Negligence

Duty: Children

Answer 25

Children are held to standard of a child like age, intelligence, and experience (subjective test). However, child engaged in potentially dangerous adult activites (operating motor vehicle) may be held to an adult standard of care.

Children under the age of five generally do not have the capacity to be negligent.

Question 26

Torts - Negligence

Duty: Professionals

Answer 26

A professional is required to possess knowledge and skill of the average member of the profession/occupation in good standing.

Physicians
Most courts apply a national standard of care to evaluate their conduct.

Physicians have a duty to disclose risks of treatment. It is sufficient to enable the patient to give informed consent. It is breached if the risk is serious enough that a reasonable person in patient’s position would have withheld consent on learning risk.

Question 27

Torts - Negligence

Duty: Possessors of Land

Answer 27

Discuss this duty when plaintiff is injured by dangerous conditions on someone else’s property.

When plaintiff is injured by an activity on defendant’s land –> ordinary standard of care
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Duty to:
1. Persons Off Premises
2. Persons On Preferences

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Active Operations
For all classifications, the duty of reasonable care is applied to activities on the land
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Attractive Nuisance
Landowner has a duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on their property if:
1. The landowner knows or should know of the dangerous condition
2. The landoner knows children frequent the area
3. The condition is likely to cause harm (it is dangerous due to childrens’ inability to appreciate risk, AND
* 4. The expense of remedy is slightcompared to the level of risk

Question 28

Torts -

Duty: Possessors of Land
Persons Off Premises

Answer 28

Generally, a landowner owes no duty to protect someone outside the premises from either natural or artificial conditions on the land, EXCEPT:

Natural Conditions Exception- Trees:
Duty to maintain trees so they do not cause harm to persons off the premises
.

Artificial Conditions Exceptions:
Exceptions for artificial conditions include
1. Duty to protect from unreasonably dangerous artificial conditions, and
2. Duty to take precautions to protect passersby from dangerous conditions

Question 29

Torts - Negligence

Duty: Possessors of Land
Persons On Premises

Answer 29

The owner/possessor of land owes a duty to those on the premises depending on the classification of the person coming onto the land.
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Classifications
1. Invitees
2. Licensees
3. Trespassers

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Invitees
An invitee is on the premises for the business purpose of the owner/possessor.

Duty to Invitee
The possessor/owner owes a duty to invitee to inspect, discover, repair, and protect against known or discoverable dangers IF the owner/possessor:
1. Knows or by reasonable inspection should have discovered the dangerous condition
2. Should realize it involves an unreasonable risk of harm AND
3. Should expect invitee will not discover/realize the danger OR will fail to protect themself against it.

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Licensees
A licensee is on the premises for their own purpose, rather than for the possessor’s benefit (Social Guests).

Duty to Licensee
The possessor/owner owes a duty to a licensee to exercise reasonable care to make the condition safe OR warn of the condition and risk if the possessor/owner:
1. Knows or has reason to know of the condition
2. Should realize it involves an unreasonable risk of harm
3. Should expect invitee will not discover/realize the danger, AND
4. Licensees do not know or do not have reason to know of the condition/risk involved.

Solictors: Solicitors and licensees unless you have a no trespassing or no soliciting sign or a locked gate.
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Trespassers
A trespasser is on the property without the consent of the owner/possessor

Duty to Trespassers
The possessor/owner’s duty to trespassers only extends to artificial dangerous conditions
* Known/Anticipated Trespassers: Duty to adequately warn of highly dangerous (involving risk of serious bodily harm or death) artificial conditions created or maintained by the owner/possessor that are non-obvious/concealed AND known by the owner/possessor.
* Unknown Trespassers: The duty is limited to not engaging in wanton or willfull harmful conduct

only give the rule for the applicable classification

Question 30

Torts - Negligence

Special Duty Issues

Answer 30

Firefighter’s Rule
Firefighters, police, and other first responders are prohibited from recovering for injuries caused by the special risks of doing their job.
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Rescuers
Defendant is liable to a rescuer who is injured during a rescue if the defendant’s negligence put either defendant or third persons in the position of requiring rescue. Rescuers are foreseeable because danger invites rescue.
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Common Carriers
Common carriers (railroads, airlines, etc) owe a hightened duty to use the highest degree of careto aid and assist their passengers
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Custom
Custom or usage in an industry or trade may be introduced as evidence of a duty or lack of duty.
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Generally No Duty of Affirmative Action
Generally, there is no duty to act or rescue EXCEPT:
1. Special Relationship (Parents, innkeepers, common carriers, shopkeepers, etc.)
2. Peril Due to Own Conduct
3. Assumption of Duty (Applies once a person starts taking rescue action)
4. Duty to Prevent Harm by Third Persons One who (1) has actual ability and authority to control someone’s actions, AND (2) knows or should know the person is likely to commit acts that would require exercise of this control

Question 31

Torts - Negligence

Duty: NIED

Answer 31

Generally, there is no duty to prevent emotional distress UNLESS plaintiff suffers physical harm

To establish a duty the plaintiff usually must:
1. Be within the zone of danger AND
2. Suffer physical symptoms from the emotional distress

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Exceptions (Doesnt Require Danger Zone or Physical Symptoms
1. Plaintiff and victim are closely related + Plaintiff was present + Plaintiff perceived the injury
2. The duty arises from a special relationship between plaintiff and defendant, so the negligence has great potential to cause emotional distress (physician and patient)
3. Defendant mishandles relative’s corpse
4. Defendant erroneously states a relative has died

Question 32

Torts - Negligence

Breach

Answer 32

1. General Breach
2. Res Ipsa Loquitur
3. Negligence Per Se

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General Breach
Where defendant’s conduct falls short of the level of care required by the applicable duty

Custom: When the standard is reasonable prudence, evidence of a custom or useage of others may be used to establish how reasonable person would behave.
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Res Ipsa Loquitor
The fact finder can infer breach if:
1. Defendant had control of instrumentality of harm AND
2. Harm would not normally have occured in absence of negligence

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Negligence Per Se
Plaintiff may establish conclusive presumption of duty AND breach where
1. Defendant violated a criminal ordinance or statute,
2. Plaintiff is a member of the** class of persons** the statute intends to protect, and
3. Plaintiff suffered the type of harm the statute intends to prevent.

• Compliance Dangerous or Impossible: violation of a statute may be excused if compliance is (1) more dangerous than violation OR (2) beyond defendant’s control
• Conclusive Presumption: A finding of negligence per se results in the conclusive presumption of duty and breach
• Compliance Does Not Establish Due Care: Compliance itself does not necessarily establish due care (just establishes duty and breach)

Order of Analysis (If NPS)
1. Ordinary Duty
2. Specialized Duties
3. Ordinary Breach
4. Breach of Specialized Duties
5. Negligence Per SE
6. Actual Cause
7. Proximate Cause
8. Harm

Question 33

Torts - Negligence

Factual Cause

Answer 33

“But-For” Test
But for defendant’s breach, plaintiff would not have been injured.
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Substantial Factor Test
Where there are several causes of plaintiff’s injury, and of which alone would have caused plaintiff’s harm, plaintiff can establish factual causation by showing defendant’s conduct was a substantial factor in causing plaintiff’s harm.
.
Unascertainable Cause Test
Where there are two or more negligent acts, only one causes the injury, but it is unknown which act caused the harm, then the burden shifts to the defendants and each defendant must prove their negligence did not cause the harm

Question 34

Torts - Negligence

Proximate Cause

Answer 34

Generally, proximate cause is established where the type of harm plaintiff suffered was a foreseeable result of defendant’s conduct.
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Foreseeable Intervening Events
* Medical malpractice
* Negligence of rescuers
* Reactive forces
* Disease or accident
* Defendant’s conduct increased risk of harm

Question 35

Torts - Negligence

Harm

Answer 35

One sentence:
“Plaintiff was harmed because she suffered a broken leg”

Question 36

Torts - Negligence

Defenses to Negligence

Answer 36

Only discuss if there is time and they are reasonable.
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Discuss both contributory and comparative if either may apply.
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1. Contributory Negligence
2. Comparative Fault
3. Assumption of Risk
4. Emergency

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Contributory Negligence
1. Complete Bar to Recovery
2. Last Clear Chance
3. Inattentive Plaintiff (Plaintiff could have discovered, but Defendant knew, should have known, etc. but failed to fix)

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Comparative Fault
1. Pure Comparative Fault - Reduces the recovery by the % of plaintiff’s fault
2. Non-Pure Comparative - Bars recovery if plaintiff’s fault exceeds 50%

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Assumption of Risk
Plaintiff is denied recovery if
1. They know of the risk,
2. They voluntarily assume the risk OR proceed in the face of the risk, AND
3. They understood the risk.

NOTE: Certain risks are not assumed: traveling on a common carrier, protected by statute, fraud, force, or emergency

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Emergency
1. Defendant did not create the emergency
2. Defendant acted as a reasonable person under the same emergency

Question 37

Torts - Nuisance

Nuisance

Answer 37

Public Nuisance
Plaintiff must show:
1. Interference with a common public interest (health, safety, property rights, etc), AND
2. If a private party, there mst suffer a harm different in kind from the harm suffered by the public in general.

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Private Nuisance
1. An unreasonable invasion of another’s interest in the use and enjoyment of their land AND
2. The invasion is either:

• Intentional OR
• Unitentional and otherwise actionable as negligence, recklessness, or abnormally dangerous. (Court will balance harm)

Question 38

Torts - Trespass

Trespass

Answer 38

Trespass to land requires:
1. Entry onto or remaining upon
2. Land in the possession of another
3. without the possessor’s consent or a lawful privilege

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Physical Invasion can be by a person or their object and includes subterranean and air space
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Mistake is not a defense
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No Harm Required for nominal damages absent threat of repeated trespass
.
Under the Necessity Defense, the defendant is liable for actual damages, but not punitive damages
.
Typical Remedy = Injunction

Question 39

Torts - Strict Liability

Strict Liability

List

Answer 39

1. Animals
   
   • Domestic
   • Wild
2. Abnormally Dangerous Activities

Question 40

Torts - Strict Liability

Domestic Animals

Answer 40

1. An owner of a domestic animal
2. Is liable for the harm done by the animal
3. Only If:
   • They know or have reason to know
   • Of the Animal’s vicious tendencies
   • That are not common to the species

Includes:
Cats, Dogs, Pigs, Horses, Sheep, Goats, Bees, Etc.

.
Common tendencies for livestock may include kicking, charging, or trampling.

Question 41

Torts - Strict Liability

Wild Animals

Answer 41

Owners and possessors of wild animals are Strictly Liable for the harm caused by those animal.

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Plaintiff must show:
1. Defendant owned/possessed
2. A wild animal
3. That caused harm to plaintiff
4. Of a kind related to the wildness of the animal

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Includes: All non-domestic Animals
.
Tresspassers must prove negligence of owner

Question 42

Torts - Strict Liability

Abnormally Dangerous Activities

Answer 42

1. Defendant carried on an abnormally dangerous activity
2. Which actually AND proximately causes harm
3. The risk of which makes the activity abnormally dangerous

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Abnormally Dangerous Activity Factors
1. The high degree of risk/harm
2. The gravity of the risk
3. The inability to eliminate risk through reasonable care, and
4. Whether the activity is not of common use in the community

Question 43

Torts - Products Liability

Analytical Approach

Answer 43

1. Three Theories
   • Strict
   • Negligent
   • Breach of Warranty
2. Strict Product Liability –> Product Defects
   • Manufacturing Defect
   • Design Defect
   • Failure to Warn
3. Negligent Products Liability
4. Breach of Warranty
   • Express
   • Implied
   • Fitness for Particular Purpose

Question 44

Torts - Products Liability

Three Theories

Answer 44

1. Strict
2. Negligent
3. Breach of Warranty

Liability applies to everyone in the vertical chain of distribution

Cover ALL THREE theories

Question 45

Torts - Products Liability

Strict Products Liability

Answer 45

1. Defendant is in the business of selling/distributing products
2. Defendant sells/distributes the defective product
3. The defect exists at time of sale/distribution and the product remains unchanged, AND
4. The defect actually and proximately causes harm to a foreseeable person

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Defendant in the Business: Commercial suppliers – manufacturers, wholesalers, retailers, distributors. NOT casual sellers.

Product Defects
Manufacturing Defect
A manufacturing defect occurs where the product departs from the design–such as an assembly line error
.
Design Defect
1. Risk Utility

Plaintiff must prove:
	* **Inherently unreasonable** _and_ **significant risk**, _AND_
	* The product has **little to no utility**

2. Alternative DesignPlaintiff must prove:
   * Reasonable and Practical alternative design
   * That would gave been economically feasible and
   * Would have been safer

NOTE: Only discuss if a low-cost alternative design is mentioned

Failure to Warn
A manufacturer is subject to liability for failure to warn if the manufacturer:
1. knows or has reason to know the product is likely to be dangerous for its intended use
2. Has no reason to believe users of the product will realize the danger, AND
3. Fails to adequately warn users of either:

* The product's **dangerous condition**, OR
* **Facts** which make the product **likely to be dangerous**
* NOTE: Consider the **obviousness** of the risk

Question 46

Torts - Products Liability

Negligent Products Liability

Answer 46

1. DutyThe manufacturer owes a duty to all foreseeable users and bystanders, if when negligently made, the product:
   • Is reasonably certain (probable) to imperil user, AND
   • If the plaintiff is not immediate purchaser, but manufacturer knows product is likely to be used by persons other than the immediate purchaser
2. Breach
3. Actual Cause
4. Proximate Cause
5. Harm
6. Defenses

Question 47

Torts - Products Liability

Breach of Warranty

Answer 47

Three Types:
1. Express Warranty
2. Implied Warranties of Merchantability
3. Fitness for Particular Purpose

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Express Warranty
1. Warranty made expressly
2. Relied on by purchaser, AND
3. Breach causes harm to foreseeable persons

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Implied Warranty of Merchantability
1. Existence of warranty
2. Reliance by buyer
3. Breach
4. Breach is proximate cause of loss
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Merchantability
Merchantability means that goods sold by a merchant who sells goods of the kind must:
1. be of fair average quality
2. be fit for ordinary purposes for intended use
3. be adequately packaged/labeled, AND
4. conform to any promises or affirmations made on the container/label

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Fitness for Particular Purpose
1. Existence of Warranty
2. Breach
3. Breach is proximate cause of loss
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Fitness
1. Seller knos of plaintiff’s special need, AND
2. Recommends product with that knowledge

Question 48

Torts - Defamation

Defamation

Answer 48

Strict Liability where:
1. Defamatory statement
2. Of or concerning the plaintiff,
3. Publication, AND
4. Harm

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Defamatory Statement
* statement that holds the plaintiff up to ridicule or harm to reputation
* Opinion not defamatory unless necessarily founded in asserted facts

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Slander
1. Oral Defamation
1. No recovery absent proof of special damages, UNLESS slander per se:

* Accusation of a serious crime
* imputes presence of contagious or loathesome disease
* tends directly to injure in respect to office, profession, trade, or business
* impotence or a want of chastity (and serious sexual misconduct)
* statement that causes actual damage

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Libel
1. Written/Broadcase defamation
2. Libel Per Se (on its face, damages presumed)
3. Libel Per Quod (requires proof of extrinsic facts and the defamatory meaning in light of those facts)

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Of or Concerning Plaintiff
The hearer or reader reasonably understands that the statement is defamatory and refers to the plaintiff
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Publication
Requires communication to a third person. Includes anyone who publishes or republishes.
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Harm
1. Harm is to reputation.
2. Requires proof of special damages unless per se defamation

Question 49

Torts - Defamation

Defamation Defenses

Answer 49

Two major defenses: truth and privilege
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Truth
Truth is a complete defense to defamation.
.
Consent
Consent is a defense to defamation.
* Express
* Implied
* Scope
* Capacity to Consent

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Privilege
(1) Absolute
Includes statements between
1. spouses and
2. Those made in:

* The proper discharge of an official duty (legal duty imposed on government official)
* Legislative Proceeding
* Judicial Proceeding; _OR_
* In the initiation or course of any other official proceeding authorized by law.
NOTE: Doesn't matter if there was malice/falsity

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Qualified
A qualified privilege exists if the statement is made without malice, to an interested person, by someone who:
1. Is also interested
2. Stands in relationship with interested person as to afford reasonable ground for supposing an innocent motive for communication, OR
3. Is requested by person interested to give information

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First Amendment Defenses

Question 50

Torts - Defamation

First Amendment Defenses

Answer 50

Plaintiff is Public Official/Person
Plaintiff must also prove:
(5) The statement was false
(6) Defendant acted with malice (knowledge that it was false or reckless disregard for the truth)
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Private Plaintiff + Matter of Public Concern
Plaintiff must also prove:
(5) Falsity and
(6) That the defendant make the false statement, either:
* negligently in order to obtain actual damages, OR
* With malice to recover presumed or punitive damages

Question 51

Torts - Invasion of Privacy

Invasion to Privacy

Answer 51

1. Intrusion into Secusion
2. Public Disclosure of Private FAct
3. False Light
4. Appropriation

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Intrusion to Seclusion
1. Defendant unreasonably and seriously interferes with plaintiff’s interest in not having affairs known, AND
2. Defendant should have realized their conduct would offens person of reasonable sensibilities

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Public Disclosure of Private Fact
1. Public disclosure
2. Of a private fact
3. That would be offensive or objectionable to a reasonable person
4. That is not of legitimate public concern

**Private Fact:** a fact is private if the plaintiff has made **reasonable attempts** to keep the matter private
	**Newsworthiness**
	1. Social Value
	2. Depth of Intrusion
	3. Voluntarily acceded to public notoriety

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False Light
1. Defendant publicized private matter concerning plaintiff
2. That places plaintiff before public in false light
3. That would be highly offensive to a reasonable person, AND
4. If it is a matter of public interest, that defendant acted with malice (knowledge or reckless disregard of the falsity of the matter and the false light)

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Appropriation
1. Appropriation or use
2. Of Plaintiff’s identity
3. by Defendant
4. For Defendant’s commercial use

Question 52

Torts - Misrepresentation

Misrepresentation

Answer 52

Intentional Misrepresentation
1. Misrepresentation of material past or present fact
2. Scienter (Knew or Believed statement was false or had no bases)
3. Intent to Induce plaintiff to act or refrain from acting in reliance on misrepresentation
4. Causation (Actual reliance)
5. Justifiable Reliance
6. Damages (Actual Pecuniary Loss)

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Concealment
(1) Requires an omission of material fact that makes defendant’s previous statement misleading or untrue OR they had a duty to disclose (+ remaining IM elements.)
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Duty to Disclosue
No duty to disclose, UNLESS
1. Fiduciary to plaintiff
2. Selling real property knowing plaintiff is unaware/cant reasonably discover, OR
3. Defendant’s words have deceived plaintiff

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Negligent Misrepresentation
(2) Scienter requires that defendant:
* Made statement honestly believing them to be true
* But without reasonable ground for such belief

Question 53

Torts - Interference with Economic Relationships

Interference with Economic Relationship

Answer 53

Interference with Contract
1. Interference (Action, not Omission)
2. Which is Intentional and
3. Improper or Unlawful (and Unprivileged),
4. In Contract between Two Other PErsons,
5. Causing one of them to Not Perform on Contract

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Interference with Economic Relationship
1. Economic relationship between Plaintiff and third party;
2. Defendant knows of relationship
3. Intentional wrongful acts, independent of interference itself, designed to disrupt relationship
4. Actual disruption of relationship; AND
5. Damages are proximately caused by acts

Question 54

Torts - Damages

Tort Damages

Answer 54

Purely Economic Loss
Generally not recoverable in negligence, UNLESS there is also injury to person or property
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Punitive Damages
Only recoverable if Defendant’s conduct was malicious, willful, or completely reckless
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Tort Damages
1. Causal
2. Foreseeable
3. Reasonably Certain, and
4. Unavoidable

Question 55

Torts - Contribution

Contribution

Answer 55

Where there is joing-and-several liability AND comparative fault, contribution allows any tortfeasor who is required to pay more than his share of the damages to have a claim against the other joint tortfeasors for the excess he paid.

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Does not apply in non-JSL jurisdictions.

Question 56

Torts - Damages

Indemnity

Answer 56

Shifts liability 100% from one defendant to another.
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Available under:
1. Vicarious Liability (when only one party liable)
2. Strict Products Liability
3. Considerable Difference In FAult