Torts Flashcards
1
Q
What is the effect of a plaintiff’s establishment of res ipsa loquitur?
A
If the plaintiff establishes a prima facie case of res ipsa, then the trial court should deny the defendant’s motion for a directed verdict, and the issue of negligence must be decided by the trier of fact.
In most jurisdictions, res ipsa does not require that the trier of fact find negligence on the defendant’s part. It simply establishes an inference of negligence sufficient to avoid dismissal of the plaintiff’s action.
2
Q
When does a plaintiff’s participation in an athletic activity (e.g., football) not amount to apparent or presumed consent?
A
- the defendant’s conduct violates a safety rule of the sport
- the conduct does not typically occur during the activity, and/or
- the conduct involves significant risk of very serious injury or death.
3
Q
Four established intentional torts involving personal injury
A
battery, assault, intentional infliction of emotional harm, and false imprisonment
4
Q
Tortious Conduct
A
For battery and assault, the defendant’s tortious conduct must be an act. The act must be voluntary, meaning that the defendant must have directed the physical muscular movement.
For false imprisonment and the intentional infliction of emotional distress, the focus is on the defendant’s conduct. A defendant who fails to act when having a duty to do so may be liable as well as a defendant who affirmatively acts.
5
Q
Causation
A
Causation exists when the resulting harm was legally caused by the defendant’s conduct.
For the defendant conduct to be the legal cause of the harm, the defendant’s conduct must be both the factual cause and the proximate cause of the harm.
6
Q
Factual cause
A
Generally, a defendant’s conduct is a factual cause of harm when the harm would not have occurred absent the conduct (i.e., the “but for” cause).
When there are multiple acts, each of which by itself would have been a factual cause of the harm at the same time in the absence of the other acts, each act is a factual cause of the harm.
7
Q
Proximate cause
A
Proximate cause limits a defendant’s liability.
A defendant who intentionally or recklessly causes harm is not subject to liability for harm the risk of which was not increased by the defendant’s intentional or reckless conduct. However, a defendant is not relieved from liability merely because the harm was unlikely to occur.
In addition, a defendant who intentionally or recklessly causes harm is liable for a broader range of harms than the defendant would be if only acting negligently.
8
Q
Harmful or Offensive Contact
A
Contact is harmful when it causes physical injury, illness, disease, impairment of bodily function, or death.
Contact is offensive when…
- Objective Test: a person of ordinary sensibilities (i.e., a reasonable person) would find the contact offensive.
- Subjective Test: the defendant knows that the contact is highly offensive to the plaintiff’s sense of personal dignity, and the defendant contacts the plaintiff with the primary purpose that the contact will be highly offensive, unless the court determines that imposing liability would violate public policy.
9
Q
Anticipation of Contact
A
A plaintiff must be aware of or have knowledge of the defendant’s act. (ex. An individual kisses a sleeping stranger. The individual is not liable for assault, even though the individual may be liable for battery.)
Majority rule: objective standard—the plaintiff’s anticipation must be reasonable; a reasonable person (i.e., a person of ordinary ability or courage) must have anticipated a harmful or offensive contact.
Minority rule (Restatements): subjective standard—the plaintiff must actually have anticipated a harmful or offensive contact; recognizes that a plaintiff’s subjective anticipation of an imminent offensive contact cannot override the legal definition of an offensive contact.
10
Q
Participation in an Intentional Tort
A
A defendant who knowingly and substantially instigates, encourages, or assists another person’s commission of an intentional tort involving personal injury is subject to liability for that tort, even if the actor’s conduct does not independently satisfy all elements of the underlying tort.
11
Q
Does the plaintiff have to be aware of the contact when it occurs to recover for battery?
A
No.
Ex. An operating room attendant inappropriately touches the patient while she is under the effect of anesthesia. The attendant is subject to liability for battery, even though the patient was not aware of the touching.
12
Q
Indirect Contact
A
The harmful or offensive contact need not be with the defendant himself.
Ex. D throws a rock that strikes P; D pushes another individual into P
13
Q
Purposeful Infliction of Bodily Harm
A
When there is no contact with the plaintiff’s person, the defendant is not liable for battery.
In rare cases, when the defendant’s conduct is particularly culpable, the Restatement 3d of Torts would impose liability on the defendant for the purposeful infliction of bodily harm. Under the Restatement’s position, the defendant’s conduct could be either an affirmative act or a failure to act when the defendant has a duty to act.
Ex. The neighbor of an elderly individual knows that the individual has left the neighbor a small inheritance in his will. When the neighbor is present in the individual’s home, the individual has a heart attack. The neighbor attempts to reach for a phone to call 911. The neighbor, motived by the inheritance, seizes the phone before the individual can reach it and watches the individual die. The neighbor is not liable for battery because the neighbor has not made contact with the individual but is liable for the purposeful infliction of bodily harm.
14
Q
Assault
A
A defendant is subject to liability to the plaintiff for assault if:
i) The defendant intends to cause the plaintiff to anticipate an imminent, and harmful or offensive, contact with the plaintiff’s person; and
ii) The defendant’s affirmative conduct causes the plaintiff to anticipate such contact with the plaintiff’s person.
15
Q
Intent for Intentional Torts
A
Majority Rule: merely requires a defendant to intend to cause a contact. While the contact must be harmful or offensive, the defendant need not intend that result (i.e., the single-intent rule).
Minority Rule: requires a defendant not only to intend to bring about a contact, but also to intend that the contact be harmful or offensive (i.e., the dual-intent rule).
16
Q
Prima facie case for any intentional tort
A
proof of the tortious conduct, the requisite mental state (intentionality), and causation.
17
Q
When is use of force in defending others justified?
A
When the defendant has a reasonable belief that the circumstances are such that the third person has a privilege of self-defense against the plaintiff and the defendant’s intervention is immediately necessary for the protection of the third person. The third person need not be related to the defendant but may instead be a stranger.
18
Q
Substantial-factor test
A
In cases in which the conduct of two or more defendants may have contributed to a plaintiff’s indivisible injury, each of which alone would have been a factual cause of that injury, the test applied by most courts is whether the defendant’s tortious conduct was a substantial factor in causing the plaintiff’s harm.
Note: Under the minority rule of the Third Restatement, each such cause or act is regarded as a factual cause of the harm. Together they are designated as “multiple sufficient causes.”
19
Q
When is a person who engages an independent contractor vicariously liable for the independent contractor’s torts?
A
Those who engage an independent contractor are generally not vicariously liable for the torts of the independent contractor.
A person who hires an independent contractor is vicariously liable for certain conduct, including:
i) Abnormally dangerous activities;
ii) Inherently dangerous activities;
iii) Non-delegable duties arising out of a relationship with a specific plaintiff or the public (i.e., activities that are inherently risky or that affect the public at large, such as construction work adjacent to a public highway);
iv) The duty of a storekeeper or other operator of premises open to the public to keep such premises in a reasonably safe condition; and
v) In a minority of jurisdictions, the duty to comply with state safety statutes.
20
Q
Elements of a prima facie case for strict liability
A
i) An absolute duty to make the plaintiff’s person or property safe;
ii) Breach;
iii) Actual and proximate causation; and
iv) Damages.
21
Q
3 Applications of Strict Liability
A
DAD: Dangerous activities, wild Animals, and Defective products.
22
Q
Elements for Strict Products Liability
A
The plaintiff must plead and prove:
i) The product was defective;
ii) The defect existed when it left the defendant’s control; and
iii) The defect caused the plaintiff’s injury when the product was used in a reasonably foreseeable way.
23
Q
When may someone use deadly force to defend property?
A
Deadly force may not be used merely in defense of property. A person may never use a deadly mechanical device (e.g., a spring-loaded gun) to defend property.
24
Q
In negligence actions, what standard of care is imposed upon a child?
A
The standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience.
Note: A child engaged in a high-risk activity that is characteristically undertaken by adults, such as driving a car, is held to the same standard as an adult.
25
What is the definition of trespass to land?
The defendant's intentional act causes a physical invasion of the land of another.
Note: The defendant need only have the intent to enter the land or to cause a physical invasion. The defendant need not know that the land belongs to another. Mistake of fact is not a defense.
26
Private Nuisance
A private nuisance is a thing or activity that **substantially** and **unreasonably** interferes with another individual's use and enjoyment of his land.
## Footnote
Statutory or regulatory compliance is not a complete defense but may be admitted as evidence as to whether the interference with the plaintiff's use and enjoyment of her land is unreasonable.
27
When will a court hold a child or a mentally incompetent person liable for an intentional tort?
A majority of courts hold that both children and those who are mentally incompetent can be held liable for intentional torts if they **act with the requisite mental state.**
28
Generally, when may a defendant act in self-defense and how much force may the defendant use?
A defendant has a privilege to use force against the plaintiff for the purpose of defending himself against the plaintiff's unprivileged use of force if the defendant **reasonably believes** that the force is both **necessary** and **proportionate** to the force that the plaintiff is intentionally inflicting or about to inflict. The use of force must be for a defensive purpose and should not be significantly greater than the force used by the plaintiff.
## Footnote
A person's mistaken belief that he is in danger, so long as it is a reasonable mistake, does not invalidate this defense.
29
Firefighter's Rule
An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional's injury if the injury results from a risk inherent in the job.
Does not bar professional rescuers from recovering for harm that resulted from a land possessor's failure to warn them about concealed dangers known to the land possessor.
30
What is the effect of an exculpatory clause in a contract under which the defendant disclaims liability for negligence?
An exculpatory clause in a contract can constitute an express assumption of the risk by the plaintiff that operates as an **affirmative defense** to a negligence action. Many courts now hold that disclaimer of liability by contract negates the fact that the defendant owes a duty of care to the plaintiff in the first place, causing the plaintiff's prima facie case to fail, rather than operating as an affirmative defense.
31
In what situations will courts refuse to enforce exculpatory provisions?
Courts will not enforce exculpatory provisions:
i) Disclaiming liability for reckless or wanton misconduct or gross negligence;
ii) When there is a gross disparity of bargaining power between the parties;
iii) When the party seeking to apply the exculpatory provision offers services of great importance to the public that are a practical necessity for some members of the public such as medical services;
iv) If the exculpatory clause is subject to typical contractual defenses such as fraud or duress; or
v) When it is against public policy to enforce agreements that insulate people from the consequences of their own negligence.
32
What are the elements of false imprisonment?
1) The defendant intends to confine or restrain the plaintiff within a limited area;
2) The defendant's conduct causes the plaintiff's confinement, or the defendant fails to release the plaintiff from a confinement despite owing a duty to do so, and
3) The plaintiff is conscious of the confinement (in a majority of jurisdictions, a plaintiff who was not conscious of the confinement may still recover if harmed by the confinement).
33
What are four invasion of privacy torts?
**1) Intrusion upon seclusion:** Highly offensive & intentional intrusion on plaintiff's solitude, seclusion, or private affairs
**2) Misappropriation of the right to publicity:** Unauthorized use of plaintiff's name or likeness for personal benefit—e.g., commercial advantage.
**3) Public disclosure of private facts:** Publicity given to highly offensive & private matter concerning plaintiff that is not of legitimate public concern & results in damages
**4) Publicity in a false light:** Publicity given to false information about plaintiff with actual malice that places him/her in highly offensive & false light & results in damages
34
Misappropriation of the right to publicity (i.e., appropriation of name or likeness)
Arises when:
1. A defendant uses the plaintiff's identity—i.e., name, likeness, or item closely associated with the plaintiff—without authorization;
2. the defendant obtains a benefit (e.g., employment) from that use, and
3. plaintiff suffers an injury as a result.
35
When may a private actor make an arrest?
In most jurisdictions, a private actor is privileged to use force (e.g., commit a battery or false imprisonment tort) to make an arrest in the case of a felony if the felony has in fact been committed and the arresting party has reasonable grounds to suspect that the person being arrested committed it.
36
What are two ways in which assault differs from battery?
1) Bodily contact is not required for assault.
2) The plaintiff must be aware of or have knowledge of the defendant's act or threat for assault.
37
What does it mean to be "confined within a limited area" for the purposes of false imprisonment?
The plaintiff must be confined within a limited area in which the plaintiff's freedom of movement in all directions is constrained. The limited area may be large and need not be stationary. A plaintiff may also be confined when compelled to move in a highly restricted way.
## Footnote
An area is not bounded if there is a reasonable means of safe escape of which the plaintiff is aware.
38
What are six circumstances in which a defendant has an affirmative duty to act?
1) **Assumption of duty:** A person who voluntarily aids or rescues another has a duty to act with reasonable ordinary care in the performance of that aid or rescue.
2) **Placing another in peril:** A person who places another in peril is under a duty to exercise reasonable care to prevent further harm by rendering care or aid.
3) **Contract:** There is a duty to perform contractual obligations with due care.
4) **Authority:** One with actual ability and authority to control another, such as parent over child and employer over employee, has an affirmative duty to exercise reasonable control.
5) **Special relationship:** A defendant with a unique relationship to a plaintiff, such as business proprietor-patron, common carrier-passenger, innkeeper-guest, employer-employee, or parent-child, may have a duty to protect, aid, or assist the plaintiff and to prevent reasonably foreseeable injury to her from third parties.
6) **Statutory obligation:** A statute that imposes an obligation to act for the protection another but does not expressly or impliedly create or reject a private cause of action may give rise to an affirmative duty to act.
39
What is the traditional rule for contributory negligence?
The plaintiff's contributory negligence (i.e., failure to exercise reasonable care for her own safety) is a complete bar to recovery, regardless of the percentage that the plaintiff's own negligence contributed to the harm.
40
Name the three types of entrants to whom a possessor of land owe a duty and and the duty owed to each.
**1. Trespasser:** A land possessor is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers. Land possessors generally owe no duty to undiscovered trespassers, nor do they have a duty to inspect their property for evidence of trespassers.
**2. Licensee:** A land possessor has a duty to either correct or warn a licensee of concealed dangers that are either known to the land possessor or that should be obvious to her. The land possessor does not have a duty to inspect for dangers, but must exercise reasonable care in conducting activities on the land.
**3. Invitee:** A land possessor owes an invitee the duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them. The duty of reasonable care owed to an invitee does not extend beyond the scope of the invitation, and the invitee is treated as a trespasser in areas beyond that scope.
41
What is a "Good Samaritan" statute?
A "Good Samaritan" statute protects doctors and other medical personnel when they voluntarily render emergency care. These statutes exempt medical professionals from liability for ordinary negligence; however, they do not exempt them from liability for gross negligence.
42
In what ways may a plaintiff be confined resulting in false imprisonment?
The defendant may confine the plaintiff by the use of physical barriers, physical force or restraint or the threat of physical force or restraint, duress other than by threat of physical force or restraint, or by the assertion of legal authority.
43
When is the owner of a wild animal strictly liable for harm done by the animal?
A defendant is strictly liable for harm that
(1) is caused by a plaintiff's fearful reaction to the sight of an unrestrained wild animal, or
(2) directly results from the wild animal's abnormally dangerous characteristics, despite any precautions the possessor has taken to confine the animal or prevent the harm.
44
To which three torts does the doctrine of transferred intent apply?
1. Battery
2. Assault
3. False imprisonment
45
Are words sufficient to establish a prima facie case for assault?
For assault, words alone are insufficient. However, words coupled with conduct or other circumstances may be sufficient if the plaintiff reasonably anticipates that a harmful or offensive contact is imminent.
46
When is the use of deadly force justified in self-defense?
The defendant may use deadly force only if the defendant reasonably believes that:
i) The plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force upon the defendant;
ii) The defendant is thereby put in peril of either death, serious bodily harm, or rape by the use or threat of physical force or restraint; and
iii) The defendant can safely prevent the peril only by the immediate use of deadly force.
## Footnote
Same standard for use of deadly force in defense of third parties.
47
What is the definition of trespass to chattel?
The defendant intentionally interferes with the plaintiff's right of possession by either:
i) Dispossessing the plaintiff of the chattel; or
ii) Using or intermeddling with the plaintiff's chattel.
Nominal harm is inferred when the interference is through dispossession. When the interference is through use or intermeddling, the plaintiff must prove actual damages through one of the following:
1. actual harm to the chattel (i.e., impairment of its physical condition, quality, or value)
2. substantial loss of use of the chattel or
3. bodily harm to the plaintiff.
48
When is an employer vicariously liable for an employee's torts?
An employer is liable for the tortious conduct of an employee that is within the scope of employment.
Conduct within the scope of employment includes acts that the employee is employed to perform or that are intended to profit or benefit the employer.
Generally, an employer is not liable for the intentional tort of an employee unless such force is inherent to the job or the employee is authorized to act or speak for the employer and the position provided an opportunity for the tort.
An employer may be liable for an employee's detour but not an employee's frolic.
49
What is the definition of a public nuisance?
A public nuisance is an unreasonable interference with a right common to the general public.
A private citizen has a claim for public nuisance only if that citizen suffers harm that is different in kind from that suffered by members of the general public.
50
What are the rules regarding the use of force by parents in disciplining a child?
A parent is privileged to use reasonable force, threat of force, or confinement against the parent's minor child for the purpose of disciplining, educating, controlling, or otherwise promoting the welfare of the child.
51
3 ways a product may be defective
A product is defective when, at the time of the sale or distribution, it contains a:
**i) Manufacturing defect:** A deviation from what the manufacturer intended the product to be that causes harm to the plaintiff (the test is whether the product conforms to the defendant's product specifications);
**ii) Design defect:** A defect in the design of the product as determined under the consumer expectation test (unreasonably dangerous beyond the expectation of an ordinary user) and/or the risk-utility test (a reasonable alternative design that was economically feasible was available to the defendant and the failure to use that design rendered the product not reasonably safe); or
**iii) Failure-to-warn defect:** There is a foreseeable risk of harm, not obvious to an ordinary user of the product, which risk could have been reduced or avoided by providing reasonable instructions or warnings, rendering the product not reasonably safe.
52
Risk-utility test
A product is defective by design when:
1) the design creates a foreseeable risk of physical harm, and
2) that risk could have been mitigated by a reasonable alternative design (e.g., a modification that reduces the risk for a reasonable cost).
53
What is the "eggshell plaintiff" rule?
The defendant is liable for the full extent of the plaintiff's injuries that may be increased because of the plaintiff's preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable.
Applies to negligence and intentional torts
54
What test is generally applied to determine whether a defendant's conduct was the actual cause of the plaintiff's harm?
"But for" test: If the plaintiff's injury would not have occurred but for the defendant's tortious conduct, then the defendant's conduct is a factual cause of the harm.
55
What is the majority rule for proximate cause?
A defendant is liable for reasonably foreseeable consequences resulting from his conduct. In addition, the type of harm must be foreseeable, although the extent of harm does not need to be foreseeable. A defendant's liability is limited to those harms that result from the risks that made the defendant's conduct tortious, within the scope of liability of the defendant's conduct.
56
What are the four elements of negligence?
A prima facie case of negligence consists of four elements:
i) Duty, the obligation to protect another against unreasonable risk of injury;
ii) Breach, the failure to meet that obligation;
iii) Causation (factual and proximate), a close causal connection between the action and the injury; and
iv) Damages, the loss suffered.
## Footnote
The plaintiff must establish all four elements of negligence by a preponderance of the evidence.
57
What qualifies as contact with the "plaintiff's person" for the purposes of battery?
Contact with anything connected to the plaintiff's person qualifies as contact with the plaintiff's person for the purposes of battery (e.g., a person's clothing, a pet held on a leash, a bicycle ridden by the plaintiff).
58
What is the "merchant's privilege?"
A merchant is privileged to use force against another for the purpose of investigating, recapturing, or facilitating an arrest.
To be entitled to this privilege, the merchant must reasonably believe that the other has wrongfully (i) taken/is attempting to take merchandise; or (ii) failed to pay.
In addition, the merchant's use of force against the other must be (i) on or near the premises, (ii) reasonable, and (iii) for a reasonable time.
59
When does an intervening cause cut off a defendant's liability?
When it is a superseding cause.
**Superseding cause:** an *unforeseeable* intervening act or force that breaks chain of causation between defendant's tortious conduct & plaintiff's harm.
A foreseeable intervening act or force that contributes to plaintiff's harm does not break the chain of cuasation and the defendant remains liable. Negligent intervening acts are typically regarded as foreseeable and therefore do not break the chain of proximate causation.
## Footnote
Intervening Event: an act or event occurring after the defendant's tortious act and before the plaintiff's injury
60
What are the elements for intentional interference with a contract?
To establish a prima facie case for intentional interference with a contract, the plaintiff must prove that:
i) A valid contract existed between the plaintiff and a third party;
ii) The defendant knew of the contractual relationship;
iii) The defendant intentionally interfered with the contract, causing a breach; and
iv) The breach caused damages to the plaintiff.
## Footnote
Cannot be a contract that may be terminated at will.
61
Who may be a defendant in a strict products liability action?
The defendant must be in the business of selling or otherwise distributing products of the type that harmed the plaintiff, which includes the manufacturer of the product, its distributor, and its retail seller.
Service providers are not subject to strict products liability. (ex. dentist and defective tooth implant). Nor are one time sellers who do not regularly deal in the product.
## Footnote
No seller liability in GA, only manufacturers.
62
In a negligence action, when are damages for economic loss allowed?
If a plaintiff has proven non-economic injury, he is entitled to recover both economic and non-economic damages.
A plaintiff who suffers only economic loss without any related personal injury or property damage generally cannot recover such loss through a negligence action.
63
What defenses are available to a defamation action?
1) **Truth** is a complete defense.
2) **Consent** is a defense, provided the scope of the consent is not exceeded.
3) **Absolute privilege**
4) **Qualified privilege**
64
What statements are subject to absolute or qualified privilege as a defense to defamation?
**Absolute privilege exists for statements made:**
(i) In the course of judicial proceedings by the participants to the proceeding or legislative proceedings by witnesses to the proceedings;
(ii) Between spouses concerning a third person; and
(iii) As required publications by radio, television, or newspaper.
**Qualified privilege exists for statements:**
(i) Made in the interest of the publisher (defendant), such as defending his reputation;
(ii) Made in the interest of the recipient of the statement or a third party; or
(iii) Affecting an important public interest.
65
What is the learned-intermediary rule regarding prescription drugs and medical devices in the context of strict products liability?
The manufacturer of a prescription drug or medical device typically satisfies its duty to warn the consumer by informing the prescribing physician, rather than the patient, of problems with the drug or device.
66
How does product misuse affect the recovery of damages in a strict products liability action?
The misuse, alteration, or modification of a product by the user in a manner that is neither intended by nor reasonably foreseeable to the manufacturer typically negates the manufacturer's liability.
67
What elements must be established for violation of a statute to constitute negligence per se?
1) A criminal or regulatory statute imposes a specific duty for protection of others;
2) The defendant neglects to perform the duty;
3) The plaintiff is in the class of people intended to be protected by statute; and
4) The harm is of the type the statute was intended to protect against.
Even when negligence per se is established, the defendant still must prove that the plaintiff's violation of the statute caused the plaintiff's harm.
## Footnote
In a minority of jurisdictions, violation of the statute is merely evidence of negligence (a rebuttable presumption as to duty and breach rather than a conclusive presumption).
68
What effect does evidence of custom have on the standard of care in a negligence action?
Evidence of a custom in a community or an industry is admissible as evidence to establish the proper standard of care, but such evidence is not conclusive.
69
What is the doctrine of "transferred intent?"
Transferred intent exists when a person intends to commit an intentional tort against one person but instead commits the intended tort against a different person.
Exists when a defendant intends to commit a battery (i.e., intends to cause a contact with the person of another) and instead commits an assault (i.e., causes the other to anticipate an imminent, and harmful or offensive, contact with his or her person).
- Ex. An individual throws a ball in the direction of a friend, intending only to scare the friend. The ball hits the friend. The individual's intent to commit one intentional tort (i.e., assault) satisfies the intent requirement for another intentional tort (i.e., battery).
Generally does not apply to intentional infliction of emotional distress, but may under limited circumstances.
## Footnote
Does not apply to transfer intent from an intentional tort based on personal injury (e.g., battery, assault) to an intentional tort based on harm to property (e.g., trespass to land).
70
When may a defendant be liable to a third-party victim for IIED?
A defendant who causes harm to an individual may be liable when his intentional or reckless conduct also causes severe emotional distress to a close family member of the individual who contemporaneously perceives the defendant's extreme and outrageous conduct. The close family member need not suffer bodily harm.
If the defendant's design or purpose was to cause severe distress to the third-party victim, the victim need not have contemporaneously perceived the conduct or be a close family member of the harmed individual.
71
What is the effect of a plaintiff's negligence on a strict products liability action?
In most comparative-fault jurisdictions, the plaintiff's own negligence reduces his recovery in a strict-products-liability action in the same manner as in a negligence action. In those jurisdictions, a plaintiff's conduct that amounts to an "assumption of the risk" is treated as comparative negligence in order to reduce, but not eliminate, recovery.
In some comparative-fault jurisdictions, the plaintiff's recovery in strict products liability is not reduced by the percentage that the plaintiff's fault contributed to causing her injury.
72
Recklessness
A defendant acts recklessly if:
i) The defendant knows of the risk of harm created by the conduct or knows facts that make the risk obvious to another in the person's situation; and
ii) The precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the defendant's failure to adopt the precaution a demonstration of the defendant's indifference to the risk.
73
What level of force may be used when recapturing one's personal property?
A person is generally not privileged to commit battery, assault, or false imprisonment to regain possession of personal property.
Under the "fresh pursuit" exception, when a plaintiff wrongfully takes personal property from a defendant's possession, the defendant may use reasonable, nondeadly force to regain possession of the property if the defendant acts promptly.
74
What are the elements of battery?
1) The defendant intends to cause a contact with the plaintiff (or transferred intent)
2) His affirmative conduct causes such a contact, and
3) The contact causes bodily harm or is offensive to the plaintiff.
75
What is the imminence requirement for assault?
The threatened bodily harm or offensive contact must be imminent, i.e., without significant delay.
Threats of future harm are insufficient, as are threats made by a defendant too far away to inflict any harm; but threat of future contact can satisfy the imminence requirement in some circumstances.
76
What types of damages are permitted for strict products liability claims?
Only personal injury or property damage. A claim for purely economic loss must be brought as a breach-of-warranty action.
77
What are the elements of defamation?
A plaintiff may bring an action for defamation if:
i) The defendant's defamatory language;
ii) Is of or concerning the plaintiff;
iii) Is published to a third party who understands its defamatory nature; and
iv) It damages the plaintiff's reputation.
For matters of public concern, the plaintiff is constitutionally required to prove fault (negligence) on the part of the defendant. If the plaintiff is either a public official or a public figure, then the plaintiff must prove actual malice.
If either (i) the defamatory statement relates to a matter of public concern or (ii) the plaintiff is a public official or a public figure, then the plaintiff must also prove that the defamatory statement is false.
78
Elements of Res ipsa loquitur
**Traditional approach (majority)**
(1) The accident was of a kind that ordinarily does not occur in the absence of negligence;
(2) It was caused by an agent or instrumentality within the exclusive control of the defendant; and
(3) It was not due to any action on the part of the plaintiff.
**Third Restatement (minority)**
(1) Accident that caused plaintiff's harm is type that ordinarily happens due to negligence of class of actors
(2) Defendant is relevant member of that class
79
Duty to use ordinary care
Ordinary care is the care that a reasonably prudent person would use under the circumstances. (RPP standard)
80
When is conduct considered extreme and outrageous for the purposes of IIED?
Conduct is extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society. The character of the conduct must be outrageous and the conduct must be sufficiently unusual to be extreme.
While liability generally does not extend to mere insults, threats, or indignities, a defendant's abusive language and conduct may be sufficiently "extreme and outrageous" if the defendant is in a position of authority or influence over the plaintiff, or the plaintiff is a member of a group with a known heightened sensitivity (e.g. pregnant woman).
Examples:
- Abusing position of authority (school principal verbally assaulting student)
- Exploiting known special vulnerability (harming someone's beloved pet)
- Repeated or prolonged conduct (repeated threats of violence, stalking)
- Going beyond bounds of human decency (secretly videotaping person undressing)
81
What are the Andrews and Cardozo views regarding the foreseeability of a plaintiff?
**Cardozo (majority) view** - a duty of care is owed to the plaintiff only if she is a member of the class of persons who might be foreseeably harmed (sometimes called "foreseeable plaintiffs") as a result of the defendant's negligent conduct.
**Andrews (minority view)** - if the defendant can foresee harm to anyone as a result of his negligence, then a duty of care is owed to everyone (foreseeable or not) harmed as a result of his breach.
82
What are two situations in which a plaintiff's express consent will not constitute a defense to an intentional tort?
1. The defendant caused or knew of the plaintiff's mistake in granting consent
2. Defendant's use of physical force or threat of present action (duress) to obtain consent.
If consent is obtained through any of the above means, the consent is invalid.
83
What is the last clear chance doctrine?
In contributory-negligence jurisdictions, the plaintiff may mitigate the legal consequences of her own contributory negligence if she proves that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so.
Helpless plaintiff
- Plaintiff, due to contributory negligence, is in peril from which plaintiff cannot escape
- Defendant is liable if defendant knew or should have known of plaintiff's peril & harm could have been avoided but for defendant's negligence
Inattentive plaintiff
- Plaintiff, due to contributory negligence, is in peril from which plaintiff could escape if plaintiff was paying attention
- Defendant is liable if defendant had actual knowledge of plaintiff's inattention
The last clear chance doctrine has been abolished in most comparative-fault jurisdictions. Instead, the plaintiff's negligence is considered in determining the recovery to which the defendant is entitled.
84
What are the elements of assault?
1) Plaintiff's reasonable apprehension,
2) Of an imminent harmful or offensive bodily contact,
3) Caused by the defendant's action or threat,
4) With the intent to cause either the apprehension of such contact or the contact itself.
85
Special relationships imposing higher duties of care
- Parent/child
- Hospital/patient
- Employer/employees
- Shopkeeper/business invitees
- Common carrier/passengers
- Custodian/person in custody
- Innkeeper/guests
86
Trespass to chattels v. Conversion
**Trespass to chattels**
- Minor intentional interference with plaintiff's right to control chattel
- Liable for actual damages—e.g., cost of repairs, loss of use
**Conversion**
- Substantial intentional interference with plaintiff's right to control chattel
- Liable for fair market value of chattel at time of conversion
87
What is the definition of conversion?
An intentional exertion of dominion or control over the plaintiff's chattel that so seriously interferes with the plaintiff's ownership rights that the defendant is liable for the fair market value of the chattel at the time of the conversion. Alternatively, the plaintiff may bring an action for replevin to recover the chattel and any difference in value.
A defendant who initially uses the plaintiff's chattel with permission commits conversion when the defendant:
(1) intentionally uses the chattel in a manner that exceeds the scope of permission and
(2) seriously violates the plaintiff's right to control the chattel.
88
Land possessor's duty to land entrants (modern approach)
land possessors owe a duty of reasonable care to all land entrants except flagrant trespassers (ex. burglars).
89
Land possessor's duty to land entrants (traditional approach)
**Invitees**
- Inspect for unknown dangers, make safe or warn, & prevent harm from active operations
- An invitee is a a trespasser if that person intentionally enters an area without permission
**Licensees**
- Warn of known latent defects & use reasonable care in active operations
**Known or anticipated trespassers**
- Warn of known artificial dangers & use reasonable care in active operations
**Unknown or unanticipated trespassers**
- No duty
90
Duty to a known or anticipated trespasser
The land possessor owes a limited duty to:
- warn the trespasser about, or protect the trespasser from, hidden, artificial dangers that are known to the land possessor but unlikely to be discovered by the trespasser, and;
- use reasonable care in active operations conducted on the land.
91
Libel v. Slander
**Libel** is defamation by words written, printed, or otherwise recorded in permanent form.
**Slander** is defamation by spoken word, gesture, or any form other than libel.
Generally, and subject to constitutional restrictions, presumed damages may be awarded for libel, but slander requires proof of special damages unless it constitutes slander per se.
92
IIED of a Public Figure
A public figure may recover for intentional infliction of emotional distress based on the defendant's publication if the defendant (1) acted in an extreme and outrageous manner, (2) intentionally or recklessly caused the public figure severe emotional distress, and (3) published a false statement of fact with actual malice.
93
What are the elements of intentional infliction of emotional distress (IIED)?
1) The defendant's intentional or reckless,
2) Extreme and outrageous conduct,
3) That causes,
4) The plaintiff severe emotional distress.
## Footnote
Intentional infliction of emotional distress (IIED) occurs when the defendant intentionally or recklessly causes the plaintiff severe emotional harm by engaging in extreme and outrageous conduct.
94
In negligence actions, what is the general standard of care?
The general standard of care imposed is that of a that of a **reasonably prudent person** under the circumstances.
- The standard is an objective one.
- Under this standard, the defendant is presumed to have average mental abilities and the same knowledge as an average member of the community, but a defendant's particular physical characteristics (e.g., blindness) are taken into account.
If a defendant possesses special skills or knowledge, she is held to a higher standard, i.e., she must exercise her superior competence with reasonable attention and care.
95
What is the "zone of danger" rule for negligent infliction of emotional distress (NIED)?
A plaintiff can recover for NIED from a defendant whose tortious conduct placed the plaintiff in harm's way if she shows that:
**i)** she was within the "zone of danger" of the threatened physical impact (feared for his own safety); and
**ii)** the threat of physical impact caused emotional distress (usually via physical symptoms).
96
What is the most important thing a plaintiff must prove to be awarded damages in a negligence action?
The plaintiff must prove actual physical harm (bodily harm, property damage) to be entitled to damages for negligence. Nominal damages are not available.
97
In negligence actions, what standard of care applies to a professional?
A professional person (e.g., doctor, lawyer, or electrician) is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community.
A specialist may be held to a higher standard than a general practitioner because of his superior knowledge.
## Footnote
Establishing negligence by a professional person generally requires expert testimony to establish both the applicable standard of care and the defendant's deviation from that standard. But when the defendant's negligence is so apparent that a lay person could identify it expert testimony is not required.
98
When is the owner of a domestic animal strictly liable for harm done by the animal?
A domestic animal's owner is strictly liable for injuries caused by that animal if he knows or has reason to know of the animal's dangerous propensities, and the harm results from those dangerous propensities.
99
What are two major forms of comparative negligence? Define each.
**Pure comparative negligence:** The plaintiff's full damages are calculated by the trier of fact and then reduced by the proportion that the plaintiff's fault bears to the total harm.
**Partial (Modified) comparative negligence:**
(i) If the plaintiff is less at fault than the defendant, the plaintiff's recovery is reduced by his percentage of fault, just as in a pure comparative-fault jurisdiction;
(ii) If the plaintiff is more at fault than the defendant, the plaintiff's recovery is barred, just as in a contributory-negligence jurisdiction;
(iii) In the vast majority of modified comparative-fault jurisdictions, if the plaintiff and the defendant are found to be equally at fault, the plaintiff recovers 50% of his total damages. In a few modified comparative-fault jurisdictions, the plaintiff recovers nothing when the plaintiff and the defendant are equally at fault.
## Footnote
Georgia applies modified comparative-fault and the plantiff recieves nothing if he is 50%or more at fault.
100
When will a defendant's actions be considered intentional?
The defendant acts intentionally if:
i) The defendant acts with the purpose of causing the consequences of that act; or
ii) The defendant acts knowing that the consequence is substantially certain to result.
101
What is the doctrine of joint and several liability?
Under the doctrine of joint and several liability, each of two or more tortfeasors who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm.
The plaintiff has the choice of collecting the entire judgment from one defendant, the entire judgment from another defendant, or portions of the judgment from various defendants, as long as the plaintiff's entire recovery does not exceed the amount of the judgment.
## Footnote
Always apply joint and several liability on the MBE unless the facts instruct you to apply a different test.
102
When can a bystander outside the zone of danger recover for NIED?
NIED recovery for plaintiffs outside the zone of danger is allowed if the plaintiff:
i) is closely related to the person injured by the defendant
ii) was present at the scene of the injury; and
iii) personally observed (or otherwise perceived) the injury.
103
When is a landlord liable to a tenant or third party for injuries suffered on the leased premises?
The landlord is liable for injuries to the tenant and others occurring:
i) In common areas such as parking lots, stairwells, lobbies, and hallways;
ii) as a result of hidden dangers about which the landlord fails to warn the tenant;
iii) on premises leased for public use;
iv) as a result of a hazard caused by the landlord's negligent repair; or
v) involving a hazard that the landlord has agreed to repair.
104
What are the elements for intentional misrepresentation (i.e., fraud, deceit)?
To establish a prima facie case of intentional misrepresentation (i.e., fraud or deceit), the plaintiff must show that:
- the defendant **knowingly or recklessly** misrepresented a material fact with the **intent to induce the plaintiff's reliance** *and*
- the plaintiff **reasonably relied** on the misrepresentation and suffered **pecuniary loss** (i.e., monetary loss) as a result.
The elements for intentional misrepresentation are:
i) The defendant made a misrepresentation of a material fact or failed to disclose a material fact when under an affirmative duty to do so;
ii) The defendant must have known the representation to be false or must have acted with reckless disregard as to its truthfulness (scienter);
iii) The defendant must have intended to induce the plaintiff to act (or refrain from acting) in reliance on the misrepresentation;
iv) The plaintiff must have actually relied on the misrepresentation;
v) The plaintiff's reliance must have been justifiable; and
vi) The plaintiff must prove actual monetary damages (nominal damages are not awarded).
105
Abnormally Dangerous Activity
An activity that:
i) Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised; and
ii) The activity is not commonly engaged in.
In addition to these requirements, in evaluating whether an activity is abnormally dangerous, courts often consider the gravity of the harm resulting from the activity, the inappropriateness of the place where the activity is being conducted, and the limited value of the activity to the community.
Strict liability for an abnormally dangerous activity exists only if harm that actually occurs results from the risk that made the activity abnormally dangerous in the first place.
| Ex. Blasting
106
Implied Assumption of the Risk
Generally, a plaintiff must **voluntarily **encounter a **known, specific risk** in order to have impliedly assumed that risk. Most courts hold that the voluntary encountering must also be unreasonable.
Acceptance of a risk is not voluntary if the defendant's tortious conduct left the plaintiff with no reasonable alternative but to proceed despite that risk.
In most comparative fault jurisdictions, this form of assumption of the risk has been merged into the comparative-fault analysis and merely reduces recovery. In the few contributory negligence jurisdictions and in a minority of comparative-fault jurisdictions, this form of assumption of the risk remains a total bar to recovery.
107
When may someone use force to defend property?
A person may use reasonable force to defend her property if:
i) The intrusion is not privileged;
ii) The defendant reasonably believes that:
a) The plaintiff is intruding or imminently will intrude on the defendant's property; and
b) The intrusion can be prevented or terminated only by the means used;
iii) The defendant first asks the plaintiff to desist, and the plaintiff disregards the request or the defendant reasonably believes that a request will be useless or dangerous or that substantial harm will be done before the request can be made;
iv) The means used are reasonably proportionate to the value of the interest the defendant is protecting; and
v) The means used are not intended or likely to cause death or serious bodily injury.
108
Tort liability of parents
**Negligence:** Liable for failure to use reasonable care to prevent minor child from causing *foreseeable* harm to others
- Parents owe a duty to exercise reasonable care to prevent their minor child from causing foreseeable harm to others.
- Ex. parent fails to warn others about child's violent tendencies
**Vicarious liability:** Generally no, but liable for child's tort committed when:
- child acts as parent's agent (ex. child trespasses on stranger's lawn while working for parent's landscaping company)
- state statute imposes liability on parent (ex. child vandalizes school or commits school violence).
109
Consent as a Defense to Intentional Torts
Most jurisdictions have not decided which party bears the burden of proof with respect to the issue of consent, and the Restatement (Third) of Torts has not taken a position.
Of the jurisdictions that have addressed the issue, most jurisdictions have placed the burden of proof on the plaintiff to prove her lack of actual consent.
For battery, a plaintiff is generally precluded from recovery if the plaintiff consents either to the contact that is harmful or offensive or to the conduct by which the actor intends to cause such a contact.
For assault, a plaintiff is generally precluded from recovery if the plaintiff consents to (i) the anticipation (including fear) of an imminent harmful or offensive contact, (ii) the contact itself, or (iii) the conduct by which the defendant intends to cause such an anticipation or contact.
When a plaintiff places a limiting condition on her actual consent (e.g., on time or place), the consent is legally effective only within the limits of that condition.
## Footnote
Consent may be express or inferred from the facts.
110
IIED of a Public Figure
A public figure may recover for intentional infliction of emotional distress based on the defendant's publication if the defendant (1) acted in an extreme and outrageous manner, (2) intentionally or recklessly caused the public figure severe emotional distress, and (3) published a false statement of fact with actual malice.
111
Defenses to Strict Liability
**1. Assumption of the Risk:** The plaintiff’s assumption of the risk bars his recovery in a strict-liability action. With animals, if the plaintiff is aware of the dangerous propensity of an animal and taunts the animal, he may be prohibited from recovering under the doctrine of assumption of the risk.
**2. Statutory Privilege:** Performance of an essential public service (e.g., construction of utility or sewer lines) exempts one from strict liability; however, liability may still exist under a negligence theory.
**3. Trespasser:** In states that continue to classify property entrants (i.e., invitee, licensee, trespasser), a property possessor is not strictly liable for injuries inflicted by his animals against a trespasser, except, in some jurisdictions, for injuries inflicted by a vicious watchdog.
Contributory negligence is not a defence in strict liability actions. Comparative negligence may not be a defense at all, or may proportionately reduce recovery, depending on the jurisdiction.
112
Doctrine of Avoidable Consequences,
| A.k.a. Duty to Mitigate Damages
A plaintiff seeking to recover under a theory of negligence must take reasonable steps to mitigate damages after the defendant commits a tort.
In comparative-negligence jurisdictions, the plaintiff's failure to mitigate damages reduces the plaintiff's recovery by the amount of damages that could have been avoided had the plaintiff used reasonable care after the defendant's tort was committed.
113
Doctrine of Avoidable Consequences,
| A.k.a. Duty to Mitigate Damages
A plaintiff seeking to recover under a theory of negligence must take reasonable steps to mitigate damages after the defendant commits a tort.
In comparative-negligence jurisdictions, the plaintiff's failure to mitigate damages reduces the plaintiff's recovery by the amount of damages that could have been avoided had the plaintiff used reasonable care after the defendant's tort was committed.
114
Nondelegable duties
(duties that cannot be assigned to another to avoid liability)
Maintain safe conditions on premises open to public (eg, store, restaurant)
Safely perform activities that:
- are abnormally or highly dangerous
- infringe on private property right (eg, nuisance, trespass)
- are regulated by law or
- are conducted in public place.
115
Privileges to Trespass
**Public Necessity**
- an intrusion that is, or reasonably appears to be, necessary to protect a large number of people from a public disaster (e.g., hurricane, oil spill, spreading fire)
- Damages are not recoverable
**Private Necessity**
- an intrusion that is, or reasonably appears to be, necessary to protect oneself, third parties, or property
- Actual damages are recoverable, as long as the entrance was not for the land posessor's own benefit
- Nominal and Punitive Damages are not recoverable
116
Rescue doctrine
Rescuers can recover for injuries sustained while attempting to rescue another if that person's peril was caused by defendant's negligence
## Footnote
Firefighter Rule is an exception
117
“Dog-bite” statutes
Statutes that hold owners of dogs or other domestic animals designated in the statute strictly liable for damages resulting from personal injuries.
118
Trespassing Animals
The owner or possessor of any animal, wild or domestic (other than household pets), is strictly liable for any reasonably foreseeable damage caused by the animal while trespassing on the land of another.
The exception for household pets (the 3d Restatement specifically mentions dogs and cats) does not apply if the owner knows or has reason to know that the dog or cat is intruding on another’s property in a way that has a tendency to cause substantial harm.
The general negligence standard applies if an animal strays onto a public road and contributes to an accident there.
119
Privilege of fair competition
A defendant who intentionally causes a third person to either (i) not enter into a contractual relationship, or (ii) terminate an existing at-will contract, is not liable for improper conduct if:
i) The contract concerns a matter in which the plaintiff and defendant are competitors;
ii) The defendant does not use wrongful means;
iii) The defendant does not create or continue an unlawful restraint of trade; and
iv) The defendant's purpose is, at least in part, to advance his own interest.
120
Duty of reasonable care
A defendant's duty of reasonable care is breached when the defendant does not take reasonable steps to reduce the risk posed by his/her conduct.
121
Standard of Care of an Intoxicated Person
Same as a person who is not intoxicated unless their intoxication was involuntary.
