Torts Flashcards
1
Q
Intentional Torts: General Elements
High
A
- Intentional tort actions require: (1) a voluntary act; (2) committed with intent (either specific or general intent); AND (3) causation (“but for” causation or conduct was a substantial factor).
- Specific intent exists when a person desires that his conduct cause the resulting circumstances.
- General intent exists when a person is substantially certain that his conduct will cause the resulting circumstances.
2
Q
Doctrine of Transferred Intent
Medium
A
- Under the Doctrine of Transferred Intent, the intent to harm one party can be transferred when: (1) the defendant had the intent to commit a tort against one particular individual; AND (2) in the act of trying to accomplish that tort either (a) commits a different tort against that person or (b) another person is injured – whether by the same tort intended or a different tort that resulted.
- The doctrine of transferred intent only applies to the intentional torts of battery, assault, false imprisonment, trespass to land, and trespass to chattels.
3
Q
Battery
High
A
- A defendant is liable for Battery when there is (1) an intentional, (2) harmful or offensive contact (causation), (3) with the plaintiff’s person (including anything connected to the plaintiff).
- Bodily harm is the physical pain, illness, or physical impairment to another’s body. A bodily contact is offensive if it **offends a reasonable sense of personal dignity **(analyzed under the reasonable person standard).
- A claim may be supported by nominal damages; plaintiff need not suffer actual damages.
4
Q
Assault
Medium
A
- A defendant is liable for Assault when there is (1) an intentional act, (2) that causes the plaintiff to be placed in reasonable apprehension, (3) of imminent (4) harmful or offensive contact (5) with the plaintiff’s person.
- The reasonable apprehension element requires the plaintiff to be BOTH: (i) aware of the defendant’s act; AND (ii) believe that the defendant is able to commit the act.
- A claim may be supported by nominal damages; plaintiff need not suffer actual damages.
5
Q
False Imprisonment
Medium
A
- A defendant is liable for False Imprisonment when he (1)
intentionally acts, (2) to restrain plaintiff to fixed
boundaries (one with no reasonable means of escape), AND
(3) the plaintiff is conscious of the confinement or is
harmed by it (the extent of the false imprisonment is
generally not relevant). It is immaterial whether the act
directly or indirectly causes the confinement. - The restraint may be accomplished through threats, and
DOES NOT need to be physical or stationary (only in one
place). - A claim may be supported by nominal damages;
plaintiff need not suffer actual damages.
6
Q
Intentional Infliction of Emotional Distress
High
A
- A defendant is liable for Intentional Infliction of Emotional
Distress if: (1) the defendant acted intentionally or
recklessly; (2) the defendant’s conduct was extreme and
outrageous (conduct that transcends all bounds of decency);
(3) the defendant’s act caused extreme emotional distress
(causation); AND (4) the plaintiff actually suffered severe
emotional distress (damages). An act is reckless if it’s a
deliberate disregard of a high risk that emotional distress
will follow. - Where such conduct is directed at a third person, the
defendant is liable if he intentionally or recklessly causes
severe emotional distress: (a) to a member of such person’s
immediate family who is present at the time (whether or not such distress results in bodily harm); OR (b) to any other
person present, if such distress results in bodily harm.
7
Q
Trespass to Land
High
A
- A defendant is liable for the intentional tort of Trespass to
Land if (1) he intentionally, (2) either (a) enters the land in
the possession of another; (b) causes an object or a third
person to enter the land of another; (c) remains on the land;
or (d) fails to remove an object from the land that he is
under a duty to remove. - Intent to trespass is NOT required; the ONLY intent
required is that the defendant intended to enter/remain
on the subject land. The plaintiff must be a possessor of the
land at the time the trespass takes place (i.e. owner or tenant). - A claim may be supported by nominal damages; plaintiff
need not suffer actual damages. If plaintiff suffers actual
damages, he may recover either: (a) the decrease in value of
the property; OR (b) the **cost to repair **the property.
8
Q
Trespass to Chattels & Conversion
High
A
- A person is liable for Trespass to Chattels when he (1) intentionally interferes with another’s personal property
(including damage or preventing a party from using the property), AND (2) the amount of damage is small. - A person is liable for the tort of Conversion if the amount of interference is substantial, in which the converter is liable for the full market value of the chattel involved.
- To determine if there is substantial interference, the court will consider the following factors: (i) extent and duration of dominion/control; (ii) intent to deprive the owner of possession; (iii) the tortfeasor’s good faith; (iv) extent and duration of resulting interference; (v) harm done to the chattel; and (vi) inconvenience and expense caused.
-
Mistaken ownership of the property is NOT a defense to
either tort.
9
Q
Intentional Tort Defenses: Consent
Medium
A
- Consent is a defense to intentional torts, and may be express or implied through words or conduct. Consent need not be communicated to the actor.
- Apparent consent is an effective defense when words or conduct are reasonably understood to be intended as consent, such as with customary practice or the person’s failure to object. Implied by law consent occurs under certain special circumstances, such as medical emergencies.
- Defendant’s actions CANNOT exceed the bounds of the consent given. The consenting party must have capacity, and consent may be withdrawn at any time. Some courts hold that a person cannot consent to a criminal act.
10
Q
Intentional Tort Defenses: Self-Defense/Defense of Others
Low
A
- A defendant is NOT liable for harm to the plaintiff if he: (1) reasonably believed that the plaintiff was going to harm him
or another; AND (2) used reasonable force that was necessary to protect himself or another.
11
Q
Intentional Tort Defenses: Necessity
Low
A
- A defendant is NOT liable for harm to the plaintiff’s real or
personal property if defendant’s acts were (1) necessary (or
reasonably appeared to be necessary), (2) to prevent serious
harm to a person or property. Necessity is applicable only
to intentional torts against property. - Public necessity is when the defendant acts for the public
good and is a complete defense. - Private necessity is an incomplete privilege (the defendant will be liable for any damages caused unless the purpose of his acts were to help the plaintiff), and occurs when defendant is protecting his own or a few other’s property interests.
12
Q
Intentional Tort Defenses: Shopkeeper’s Privilege to Detain for Investigation
Low
A
- In most jurisdictions, shopkeepers have the privilege of (1) temporarily detaining, (2) a person reasonably suspected of theft, (3) in or near their store, (4) for the purpose of an
investigation. This privilege is a defense to false imprisonment. Reasonable non-deadly force may be used to detain the individual, when a request to remain has been made and refused.
13
Q
Negligence Elements
High
A
- A prima facie case for negligence requires: (1) a duty owed to the plaintiff by the defendant; (2) a **breach **of that duty; (3) the breach was the actual and proximate cause of the plaintiff’s injuries; AND (4) damages. To make a prima facie case, a party must offer sufficient evidence so that the trier of fact could reasonably find that ALL of the above elements have been met.
14
Q
Duty: To Whom a Duty is Owed
High
A
- Under the Andrews view, a duty of care is owed to all foreseeable plaintiffs.
- However, under the Cardozo view, a duty of care is only owed to foreseeable plaintiffs who are within the zone of danger.
15
Q
Duty: Affirmative Duty to Act
Medium
A
- Generally, there is **NO duty **to act affirmatively. However,
an affirmative duty to act will arise in certain circumstances: (a) a pre-existing relationship between the parties (i.e. parent-child, landowner-entrant); (b) the defendant put the plaintiff in peril; (c) the defendant has undertaken to render aid or rescue the plaintiff; OR (d) a duty is imposed by law.
16
Q
Standard of Care: Reasonable Person Standard
High
A
- Every person owes a duty to act as a reasonable prudent person would under like circumstances. A reasonable prudent person takes appropriate measures to avoid foreseeable risks.
- Following community customs and statutory requirements may be relevant as to what conduct is reasonable, but are NOT dispositive. Statutory compliance DOES NOT establish reasonable care or freedom from fault; it is merely evidence of reasonable care.
- The reasonable person standard also applies to business entities.
17
Q
Standard of Care: Children
Medium
A
- Children are capable of negligence, but are held to a different standard than adults. Children are held to the standard of care of a hypothetical child of similar age, experience, and intelligence acting under similar circumstances.
- If a child is engaged in an adult activity, the child has a duty to act as a reasonable adult would under the circumstances with respect to that activity. The following are deemed adult activities: driving a car, tractor, motorcycle, or other motorized vehicle (such as motorbikes/scooters and snowmobiles).
- Specific Rules for Very Young Children: Under the Restatement (Third), children under 5 years old are exempt from negligence liability. Some jurisdictions hold that young children (typically under 7 years old) are presumed incapable of negligence.
- Instructions Received: When a child receives instructions from a parent about taking necessary precautions, the child can be found negligent for failing to follow those instructions.
18
Q
Standard of Care: Medical Doctor
Medium
A
- A medical doctor is held to the degree of care and skill of
the average qualified practitioner. Most courts analyze the
doctor’s conduct under national standards rather than those
in the doctor’s locality or community. - A doctor has a duty to obtain informed consent from his patient before treatment, which requires the doctor to disclose risks of treatment that a reasonable patient would want to know.
19
Q
Standard of Care: Professionals & Attorneys
Low
A
- A professional (lawyers, accountants, engineers, architects, psychologist/psychotherapist, nurses) owes a duty to act with the knowledge and skill as an average member of that profession practicing in a similar community.
- Expert testimony is generally required to show that the professional complied or breached the standard of care.
- One holding himself out as a specialist should be held to the standard of care and skill of the average member of the profession practicing the specialty, taking into account the advances in the profession.
20
Q
Standard of Care: Land Owner/Posessor’s Duty to Entrants
Medium
A
- MODERN: Require landowners to exercise reasonable care to ALL entrants upon his land to take appropriate measures to avoid foreseeable risks.
- TRADITIONAL: Determine what duty of care is owed by a landowner by considering the type of person (trespasser, licensee, or invitee) is on the property.
- Undiscovered Trespasser (one who enters the land of another without permission): In most jurisdictions, no duty is owed by the landowner.
- Anticipated Trespasser (one who enters the land of another without permission, but which may be expected by the landowner): The landowner must: (1) use reasonable care in operations on the property; AND (2) warn of (or make safe) highly dangerous artificial conditions that the landowner knows of.
- Licensee (invited on the owner’s property as a social guest): The landowner must: (1) exercise reasonable care in operations on the property; AND (2) warn of (or make safe) dangerous conditions that are known to the landowner, but are not apparent to a guest. A person is a licensee if he reasonably believed, based on the owner’s conduct or words, that he was permitted to enter the owner’s land.
-
Business Invitee (invited onto the property for the owner’s benefit, such as a business): The landowner owes all the duties he would to a licensee. In addition, the landowner has a duty to make reasonable inspections of the property to find and make safe non-obvious dangerous conditions. A landowner is liable for
failing to warn of dangerous conditions that would have been discovered upon reasonable inspection. Generally, a landowner is allowed a reasonable time period to discover a dangerous condition and remedy it. Courts have held that when food is sold through self-service, the business must take greater precautions and make more frequent inspections.
21
Q
Standard of Care: Attractice Nuisance
Low
A
- Under the Attractive Nuisance Doctrine, a land
owner/possessor owes a duty to child trespassers to make
the premises reasonably safe or warn of hidden dangers
on his land. - A land owner/possessor is labile for the harm to a trespassing
child if: (1) he knows (or should know) of a dangerous
artificial condition on his land that is likely to cause death or
serious bodily injury; (2) he knows (or should know) that
children are likely to frequent the area; (3) children are
unlikely to discover the condition or appreciate the risks
involved; (4) the risk of harm outweighs the expense of
making the condition safe; AND (5) he fails to exercise
reasonable care in eliminating the danger or protecting
children from it. The attractive nuisance doctrine is less
likely to apply if the child engages in an adult activity.
22
Q
Negligence Per Se
High
A
- Under the doctrine of negligence per se, a statute may be used to substitute the duty of care. If applicable, the duty and breach elements are established when the defendant breaches the statute. Then the plaintiff need only prove causation and damages.
- To use negligence per se, plaintiff must show: (1) that the statute’s purpose is to prevent the type of harm that the plaintiff has suffered; AND (2) that the plaintiff is in the class of persons the statute seeks to protect.
- There are two exceptions when the standard of care will NOT be substituted for the statute even when the above test is met. The first is when the defendant’s compliance with statute would have been more dangerous than the violation of it. The second is when compliance with the statute is impossible.
23
Q
Res Ipsa Loquitor
Low
A
- When the breach element of negligence is very difficult to prove, the court may allow a plaintiff to use the doctrine of “res ipsa loquitur” (which means the thing speaks for itself) to prove the breach element.
- Res Ipsa Loquitur is applicable when: (1) the event is of a
kind that ordinarily does not occur in the absence of
negligence; (2) the **accident is attributable to the defendant **(other causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated); AND (3) the indicated negligence is within the scope of the defendant’s duty to the plaintiff. Plaintiff need not show that reasonable care would completely eliminate the risk; only that it ordinarily does not occur in the absence of negligence.
24
Q
Causation: Actual and Proximate Cause
High
A
- A plaintiff must show that the defendant’s conduct was BOTH the actual and proximate cause of the injury. Actual cause is the “but for” cause – but for defendant’s negligence, plaintiff would not have been injured. Under the Substantial Factor Test, something that is a substantial factor in bringing about the injury is an actual cause (even if the injury had multiple causes). Proximate cause is the legal cause, which means that the injury must have been a foreseeable result of the breach. A defendant is NOT liable for harms that are too remote from the defendant’s conduct.
25
Q
Causation: Intervening Causes
High
A
- Any act that occurs after the defendant’s breach that contributes to the harm is an intervening cause. Intervening
causes that are dependent on (a natural reaction to) the defendant’s wrongful acts are usually foreseeable. If the intervening cause resulted in an unexpected injury to the plaintiff, it is usually deemed unforeseeable and will absolve the defendant of liability to the plaintiff. - Intervening medical malpractice is ALWAYS deemed foreseeable.
- Intervening criminal acts are usually not foreseeable UNLESS: (a) the defendant should have anticipated the criminal act; OR (b) if the defendant’s conduct makes the criminal act more likely to occur. Courts have held that injuries sustained from a plaintiff running from the danger are foreseeable. Similarly, an injured rescuer’s injuries have been deemed foreseeable under the “danger invites rescue” doctrine.
- Liability for Increased Harm Caused by Rescue Efforts: A negligent tortfeasor who causes the initial injury is usually liable for increased/enhanced harm caused by others providing aid (including negligent and non-negligent rescue efforts). Such rescue efforts are typically NOT deemed a superseding cause of the enhanced harm if the risks and/or injury caused is part of a normal rescue attempt.
26
Q
Causation: Eggshell Plaintiff
Medium
A
- The Eggshell Plaintiff Rule means that a tortfeasor takes his
victim as he finds him. Thus, a defendant is liable for ALL harm a plaintiff suffers as a result of his conduct, even if the plaintiff suffered from a preexisting mental or physical condition that made the harm different or greater than what a normal person might suffer.
27
Q
Comparative Negligence & Contributory Negligence
High
A
- Under pure comparative negligence, the plaintiff’s negligence or assumption of risk will NOT bar recovery. However, it is a factor in determining the percentage of fault of each party, and will reduce the plaintiff’s recoverable damages by the percentage of his own fault.
- In a partial comparative negligence jurisdiction, if a plaintiff contributed less than 50% to his own injury, then his damages are reduced by the percentage of fault that is attributable to him. However, if the plaintiff contributed more than 50%, then the plaintiff’s claim is barred.
- In a contributory negligence jurisdiction, a plaintiff CANNOT recover damages if he contributed to his own injury. However, two exceptions to this rule exist: (a) when the defendant had the last opportunity to avoid the accident; OR (b) if the defendant was reckless. Contributory negligence is only applied in a few states.
28
Q
Assumption of Risk
High
A
- Assumption of risk is a defense to negligence, and applies if the plaintiff (1) voluntarily assumed (2) a known risk. The
assumption of risk may be: (a) express – by agreement; OR
(b) implied – where an average person would appreciate the risks involved. - Under the Professional Rescuer/Fireman’s Rule, a professional rescuer or firefighter CANNOT bring a cause of action against someone whose negligence caused injuries to the rescuer (i.e. a fire). The professional rescuer assumes the risk of injury related to the job. This rule also extends to police officers.
29
Q
Negligent Infliction of Emotional Distress
High
A
- Generally, there are three scenarios where a plaintiff may
recover for negligent infliction of emotional distress: (a) a
zone-of-danger claim; (b) a bystander claim; or (c) in certain situations where a pre-existing relationship exists. - In order to recover in a zone-of-danger claim: (1) there must be negligence by the defendant, (2) which creates a foreseeable risk of physical injury, (3) the plaintiff must be in the zone of danger, AND (4) the plaintiff must manifest physical symptoms.
- In order to recover in a bystander claim: (1) there must be
negligence by the defendant; (2) the plaintiff must be a
contemporaneous witness to a negligent bodily injury
inflicted on a close family member (i.e. parent, child,
spouse); AND (3) the plaintiff must manifest physical
symptoms (some jurisdictions do not require this). A few
jurisdictions require that the plaintiff be in the zone of danger to recover. - The last scenario where a plaintiff can recover is where: (1) there is a pre-existing close relationship between the plaintiff and
defendant; AND (2) the negligent act can foreseeably cause distress. Recovery is rare, and is usually only available in
egregious situations. E.g., mishandling of a corpse, death/health information, contaminated food with a foreign object.
30
Q
Vicarious Liability of Employer: Respondeat Superior
High
A
- Under the doctrine of respondeat superior, an employer is vicariously liable for an **employee’s negligent acts **if the
employee was acting within the scope of employment. - An employee acts within the scope of employment when: (a) performing work assigned by the employer; OR (b) engaging in a course of conduct subject to the employer’s control. Factors to determine if conduct is within the scope of employment include whether: (i) it is the kind the employee is employed to perform; (ii) it occurs substantially within the authorized time and space limits; and (iii) it is motivated (in whole or part) by a purpose to serve the employer. Additionally, conduct is within the scope of employment if it is of the same general nature as that authorized, or incidental to the conduct authorized. Conduct
is NOT outside the scope of employment merely because an employee disregards the employer’s instructions. - An employee’s act is NOT within the scope of employment when: (1) it occurs within an independent course of conduct; AND (2) is not intended by the employee to serve any purpose of the employer.
- An employee’s intentional torts are NOT generally within
the scope of employment UNLESS the act: (a) was specifically authorized by the employer; (b) was driven by a desire to serve the employer; OR (c) was the result of naturally occurring friction from the type of employment.
31
Q
Vicarious Liability: Employee v. Independent Contractor
Medium
A
- A party is generally NOT vicariously liable for the torts of
an independent contractor. An independent contractor is a
person who contracts with another to do something for him, but who is not controlled nor subject to the other’s right to control with respect to his performance. The contractor may or may not be an agent. - Generally, if the principal has the right to control the manner and method in which the job is performed, then the person is deemed to be an employee of the principal. In contrast, a person subject to less extensive control is considered an independent contractor. Other important factors include: (1) the degree of the employer’s control; (2) whether the pay was hourly or by the job; (3) whether the employer furnished the tools or other items needed for the job; (4) whether the job was for the benefit of the employer’s business; AND (5) the length of the working relationship.
32
Q
Joint & Several Liability
Medium
A
- In a jurisdiction permitting joint and several liability, if **multiple defendants are the proximate cause of a single indivisible harm, then the plaintiff may recover the entire amount of his damages from any single defendant **(but may not receive a double recovery). A defendant who pays more than his fair share of the damages may bring an action for contribution against the other defendants for the difference.
33
Q
Survival Acts & Wrongful Death Claims
Low
A
-
Statutory Survival Acts: permit a tort action to continue after
the death of one or more of the parties, and include recovery
of damages up to and until the party’s death. Available
damages are those that the deceased would have been
entitled to if he/she had survived. -
Wrongful Death Claim: The executor of a decedent’s estate
(or the decedent’s spouse/children), may assert a wrongful
death claim against a negligent tortfeasor for damages
resulting in the death of the decedent. The party asserting the
claim must prove that the underlying tort led to the
decedent’s death. Damages are limited to only those suffered
from the loss of the decedent, and include loss of support,
loss of services, loss of consortium, funeral and burial
expenses, and loss of companionship. Punitive damages are
NOT recoverable is a wrongful death claim, and damages
DO NOT include those that are recoverable under a survival
action.
34
Q
Defamation
High
A
- The elements required to prove a prima facie case of defamation are (1) a false defamatory statement (a statement that tends to harm the reputation of another), (2) of and concerning the plaintiff made by the defendant, (3) publication by the defendant to a third party, AND (4) damages. The statement must be one of fact, NOT a statement of opinion. Since the statement must be false, truth of the statement is a defense to a defamation claim. A person CANNOT be found liable for defamation of a dead
person. - For slander (an oral defamatory statement), the plaintiff
ALWAYS needs to prove special damages, unless slander per se. If the statement falls within a slander per se category, then the plaintiff DOES NOT need to prove special damages, unless the defamatory nature of the statement is not clear on its face. - The four slander per se categories are: (a) impugning the business integrity or skill of the plaintiff, (b) a statement of serious sexual misconduct, (c) a statement that the plaintiff has or had a loathsome disease, or (d) attributing to the plaintiff a crime of moral turpitude.
- For libel (defamation embodied in some permanent format),
the plaintiff does NOT need to prove special damages, unless
(1) the statement does not fall within one of the slander per se categories AND (2) the defamatory nature of the statement is not clear on its face. - If the plaintiff is a public official or public figure (either having injected herself into a public controversy or having achieved widespread notoriety) there is a heightened standard to prove defamation, which requires the plaintiff to prove: that the defendant spoke with either (a) recklessness as to the truth of the statement, or (b) with knowledge of its falsity. Negligence is insufficient to subject the speaker to liability.
- If the plaintiff is a private figure speaking about a matter of public concern, the plaintiff must also prove that the speaker was negligent.
- A party can claim qualified privilege as a defense to defamation when their speech serves a socially useful purpose. Examples where a qualified privilege would be valid are when an individual is recommending an employee, someone is reporting a wrongdoing to an agency, or reporting facts to a police officer. But, the speaker must be speaking in good faith AND must not be reckless as to the truth of his statement or say something affirmatively untrue. An absolute privilege exists for defamatory statements made about the parties or those participating in a judicial proceeding. In such situation, the declarant is immune from civil liability for defamation.
35
Q
Misappropriation of Name or Picture
Low
A
- Misappropriation of name or picture occurs when the defendant (1) used the plaintiff’s name or likeness, (2) for the defendant’s commercial advantage (usually limited to promoting a product or service). Newsworthiness is a defense to misappropriation.
36
Q
False Light
Medium
A
- False light occurs when the defendant (1) causes widespread dissemination, (2) of the plaintiff’s beliefs, thoughts, or actions, (3) in a false light, (4) that would be highly
objectionable to a reasonable person. If a plaintiff is a **public figure **or involves a matter of public concern, the plaintiff MUST show actual malice (knowledge of the falsity or reckless disregard). Since false facts must be publicized, truth of the facts is a defense to a false light claim.
37
Q
Intrusion of Privacy
Medium
A
- Intrusion of privacy occurs when: (1) the defendant intrudes into the private affairs of the plaintiff; (2) a plaintiff has a reasonable expectation of privacy; AND (3) the intrusion is highly objectionable to a reasonable person (i.e. reading private mail, illegal wiretapping). Communication to a third-party of the private affairs is NOT needed for the claim to be actionable.
38
Q
Public Disclosure of True Private Facts
Medium
A
- Public disclosure of private facts occurs when the defendant
(1) caused widespread dissemination, (2) of truthful private
information, (3) that would be highly objectionable to a
reasonable person. Newsworthiness is a defense unless actual malice is present. The defense of absolute privilege applies for information taken from official public documents.
39
Q
Intentional Interference with Business Relations
Low
A
- To state a prima facie case for intentional interference with
business relations, a plaintiff must show that: (1) there was
a contract or business expectancy; (2) the defendant knows of the contract/expectancy; (3) the defendant intentionally induces another party to breach the contract or terminate the relationship; (4) a breach occurs; AND (5) the plaintiff suffered damages. - Defenses: Defense of legitimate competitive activity (no dishonest, wrongful, or illegal acts were used); Giving truthful information to another; Having a financial interest in the party that breached the contract or terminated the relationship; and Honestly giving requested advice (usually in the context of a “special relationship” such as attorney and client, parent and child, or clergy and penitent.
40
Q
Intentional & Negligent Misrepresentation
Medium
A
-
Intentional Misrepresentation: To state a prima facie case
for intentional misrepresentation, a plaintiff must show: (1)
misrepresentation of a material fact by the defendant; (2)
the defendant knew that the statement was false (scienter);
(3) **intent of the defendant to induce **the plaintiff; (4) actual
and reasonable reliance by the plaintiff; AND (5) damages. - Negligent Misrepresentation: To state a prima facie case for negligent misrepresentation, a plaintiff must show: (1) a misrepresentation of a material fact by the defendant; (2) supplied for the guidance of others in a business transaction; (3) the defendant knew or should have known that the information was supplied to guide the plaintiff in his business transactions; (4) the defendant was negligent in obtaining or communicating the false information; (5) actual and reasonable reliance by the plaintiff, AND (6) the false information proximately caused plaintiff’s damages.
- Concealment (an affirmative act intended to keep another from learning of a fact) is equivalent to a misrepresentation (a false statement of fact). Generally, there is no duty to disclose information, UNLESS: (a) a fiduciary relationship exists; (b) it is necessary to correct an earlier mistake; (c) active concealment of a material fact occurs; OR (d) a person is selling real property and knows material facts that affect the value of the property (that the buyer is unaware of and cannot reasonably discover).
41
Q
Abuse of Process
Low
A
- An action for abuse of process is available when (1) one
party wrongfully uses the court process, (2) against another
for an improper purpose, (3) an act or threat is used to
accomplish that purpose, AND (4) damages result.
42
Q
Malicious Prosecution & Wrongful Civil Proceedings
Medium
A
- A claim for Malicious Prosecution requires the following
elements: (1) initiation or continuation of criminal proceedings against the accused (i.e. filing a police report); (2) the claim was initiated for an improper purpose (any purpose other than to obtain justice); (3) the claim was NOT supported by probable cause (reasonable belief that the defendant was guilty); (4) the claim ended in the plaintiff’s favor; AND (5) the plaintiff
suffered damages. Prosecutors are immune from liability. - A claim for Wrongful Civil Proceedings requires the same
elements as above, except that it requires the initiation or
continuation of civil proceedings against the plaintiff.
43
Q
Public and Private Nuisance
High
A
- A public nuisance is (1) an unreasonable interference, (2)
with the health, safety, or property rights, (3) of the community. To recover damages, the injured party MUST show actual damages. To constitute a public nuisance, the nuisance must affect a considerable number of people or an entire community or neighborhood. - A private nuisance is (1) a substantial and unreasonable interference, (2) with a person’s use or enjoyment of her property. The nuisance must be offensive, inconvenient, or
annoying to a reasonable person. - Plaintiff will be entitled to damages or an injunction to prevent the nuisance (if damages are insufficient). The primary defenses to the tort of nuisance are: (1) Coming to the Nuisance – a residential landowner knowingly came into a neighborhood with the nuisance; and (2) Statutory Compliance.
44
Q
Strict Liability: Abnormally Dangerous Activity
High
A
- A defendant is strictly liable for damages caused to a plaintiff when engaging in an abnormally dangerous activity (known as an ultrahazardous activity). An abnormally dangerous activity is one that: (1) is not of common usage in the community; AND (2) creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors.
- Examples of an abnormally dangerous activity include blasting and the use of explosives.
45
Q
Strict Liability: Wild & Domestic Animals
Low
A
- An owner of a domestic animal will NOT be strictly liable for harm caused by the animal UNLESS the owner has knowledge of the animal’s vicious propensities. Domestic animals include dogs, cats, and farm animals.
- However, an owner of a wild animal is subject to strict
liability for harm caused by the animal, regardless of the
safety precautions taken by the owner. - An animal owner is strictly liable for the trespass and resulting property damage caused by his animals (if reasonably foreseeable).
46
Q
Strict Products Liability: Liability for Manufacturing Defect, Design Defect, & Failure to Warn
High
A
- Under Strict Products Liability, a commercial supplier of a
**defective product **is subject to strict liability for any harm
caused by the product. A claim for strict products liability requires the plaintiff to show: (1) the product was defective(manufacturing defect, design defect, or failure to warn) when it left the hands of the manufacturer or seller; (2) the **product was not altered **when it reached the plaintiff; (3) the product caused an injury to plaintiff when it was being used in an intended or unintended foreseeable use; AND (4) the defendant is a commercial supplier who routinely deals in
goods of this type. - The plaintiff DOES NOT have to be a purchaser of the product to assert a claim for strict products liability (no privity is required). Damages for personal injuries and property damage may be recovered. Recovery solely for economic loss is NOT allowed.
- Evidence of a manufacturing defect requires that (1) the product differs from the intended design (some defect in manufacturing/production); AND (2) it is more dangerous than if made properly. A harmful ingredient in a food product constitutes a defect if a reasonable consumer would not expect the food product to contain that ingredient.
- Evidence of a failure to warn requires that (1) the plaintiff was not warned of the risks regarding use of the product, (2) which are not obvious to an ordinary user but known to the designer/manufacturer. A warning must be proportionate to the risk involved with normal use of the product.
- A design defect exists if there was a way to build the product that: (1) is safer; (2) is more practical; AND
(3) has a similar cost. Use: Alternative Design Test and Risk Utility Test. - Definition of Commercial Supplier: A strict products liability suit may only be brought against a commercial seller or distributor of goods. A commercial seller or distributor is any person or entity who is engaged in the business of selling goods of the type (routinely sells such goods). Casual sellers and service providers are NOT commercial suppliers, and a strict products liability action CANNOT be maintained against them. Any commercial seller in the distribution chain (including a retailor or wholesaler) is deemed to be a
commercial supplier, and a strict products liability action may be brought against them regardless if there is privity with the plaintiff.
47
Q
Products Liability: Liability for Negligence
High
A
- A negligence claim based on a defective product requires: (1) a duty owed to the plaintiff; (2) a breach of that duty; (3)
causation (actual and proximate cause); AND (4) damages. - Product suppliers (manufacturers, distributors, retailors, sellers) owe a duty to all foreseeable users of its products, and MUST act as a reasonably prudent supplier of the same type of product. A breach will be found when a supplier’s negligence results in the supply of a defective product. Suppliers are liable for ALL foreseeable misuses of their product; a misuse will only cut the chain of liability if it was not foreseeable. Any manufacturer or seller may be liable, BUT it must be shown that their conduct was negligent (i.e. caused the defect, their reasonable inspection of the product would have discovered the defect).
- Damages for personal injuries and property damage may be recovered. Recovery solely for economic loss is NOT allowed.
48
Q
Products Liability: Liability for Breach of Warranty
Low
A
- A products liability case may be based on a breach of express warranty or an implied warranty.
- The Implied Warranty of Merchantability requires that ALL goods sold by a merchant (a person dealing in goods of the kind) MUST be fit for their ordinary purpose. In such action, the only issue is whether the product was merchantable when sold (fault or how the product became unmerchantable is irrelevant).
- An Implied Warranty of Fitness for a Particular Purpose is created when: (1) a seller knows or has reason to know of the buyer’s particular purpose for which the goods are required; AND (2) the buyer relies on the seller’s skill or judgment to select or
furnish suitable goods. If the above elements are met, the goods MUST be fit for the particular purpose of the buyer, otherwise there is a breach of warranty. - A seller is liable for a breach of an Express Warranty she makes to a buyer. An express warranty is created when (1) a seller makes an affirmation of fact, promise, or description, or provides a sample, (2) which relates to the goods, and (3) it becomes part of the basis of the bargain.
- When a breach occurs, the seller may be held liable for any damages resulting from personal injury, property damage, and economic loss. Disclaimer of a warranty is usually not effective for a personal injury action.
49
Q
Products Liability: Indemnification
Low
A
- Where there is more than one tortfeasor, responsibility for
damages may be shifted among those involved. For example, in a products liability case, a retailer may receive indemnification from the manufacturer if: (1) both are held jointly liable; AND (2) the manufacturer is responsible for the defect.
50
Q
Products Liability: Compliance with Government Regulations
Low
A
- A manufacturer’s failure to comply with a government regulation conclusively proves a defect.
- However, compliance with a government regulation is NOT conclusive, but rather evidence that the product is not defective.
