Torts Flashcards
A plumber working for a company providing plumbing services to commercial and industrial establishments was required to be “on call” for emergency plumbing services 24 hours a day, and was required to drive his company van home each night so he would have all of his tools and equipment at hand for any calls. However, he was not permitted to use the company van for personal errands. On his way home one afternoon, he took a detour toward a supermarket a few blocks away to pick up some items for dinner. While entering the supermarket parking lot, he drove negligently and struck a pedestrian, seriously injuring him. The pedestrian filed suit against the plumber’s company in a jurisdiction that maintains traditional common law rules regarding contribution and indemnity, and the jury awarded him $100,000 in damages, which the company paid.
If the company sues the plumber to recoup its loss in the lawsuit, which party will prevail?
The company will recover 100% of the judgment because the plumber was negligent and the company was only required to pay because they were vicariously liable for the plumber’s actions.
A motorist was negligently driving close to the shoulder of a highway when his vehicle skidded and hit a support column of a bridge that crossed over the highway. The impact from the car caused structural damage to the support column, which caused the bridge to drop 18 inches. The sag of the bridge was clearly visible from the highway. The motorist died in his heavily damaged car as a result of the accident. A rescuer, who had been five miles away at the time of the accident, came on the scene and pulled his car off the road to see if he could render assistance. Shortly thereafter, a trucker approached the scene of the accident. The trucker saw that an accident had occurred, and had adequate time to slow down or stop, but he proceeded ahead without reducing speed. Under ordinary circumstances, his truck could have passed easily under the bridge, but the 18-inch drop caused the top of the truck to strike the bridge. A chunk of concrete fell from the bridge, striking the rescuer in the head and seriously injuring him.
If the rescuer sues the motorist’s estate, who will prevail?
The rescuer will prevail.
Once the motorist negligently put himself in peril on the highway, he created a foreseeable risk that a rescuer would be injured in some way by the negligent act of another motorist while the rescuer was assisting the motorist.
A pilot was flying his airplane, which he always kept well maintained. Due to a flock of birds that suddenly got in his way, the pilot was forced to seek an emergency landing area and glided toward a field where children were playing. As the pilot made his landing, he was unable to avoid striking and injuring one child.
If the parents of the child bring an action against the pilot to recover for the child’s personal injuries, what is the pilot’s best defense?
That he used reasonable care in the maintenance of his airplane (i.e. that he was not negligent).
When will a principal be liable for the tortious acts of an independent contractor?
If the duty is non-delegable on public policy grounds.
The plaintiff was exiting from a parking garage owned and operated by the city when he discovered that the exit ramp was blocked by construction barricades and a pile of broken-up concrete. No workers or detour signs were around and the plaintiff was in a hurry, so he backed up and drove down an entrance ramp that was clearly marked as such. As he came around a corner, his car was broadsided by a pickup truck. The plaintiff was seriously injured in the collision. A statute in the jurisdiction requires drivers to obey all traffic directional markings in both public and private parking lots and garages. The jurisdiction retains governmental immunity for municipalities.
If the plaintiff brings a lawsuit against the city to recover for his injuries, which of the following facts will be LEAST helpful in the city’s defense?
(A) The plaintiff was aware that another exit on the other side of the garage was open.
(B) The construction workers responsible for blocking off the exit ramp were employees of an independent contractor rather than the city.
(C) The city does not collect fees or make a profit in the operation of the garage.
(D) The pickup truck driver could have avoided the plaintiff but recognized him as an old enemy and deliberately ran into him.
B is the least helpful. A principal will be liable for the tortious acts of an independent contractor if the duty is nondelegable on public policy grounds, such as the duty of a possessor of land to keep its premises safe for its invitees.
A is helpful because it establishes contributory negligence.
C is helpful because it suggests that the city was acting in its governmental capacity rather than a proprietary capacity (thus governmental immunity might apply).
D is helpful because it is an example of a superseding cause.
A wife who maintained a joint checking account with her husband was surprised by an alert from her bank that their account was overdrawn. When she called the bank for an explanation, the bank representative told her that the transaction records showed a large amount of funds withdrawn from the account through a debit card for local escort services, which according to media reports were being investigated by the authorities for prostitution offenses. The wife told the bank representative that the bank must have made a mistake, but he insisted that the records were accurate. After the call, the wife confirmed that her debit card was in her purse and that her husband’s was in his wallet. She went out to her husband’s car and smashed the headlights with a baseball bat and carved her name in the leather seats. She then accused her husband of infidelity and threatened a divorce. He denied being responsible for the charges and claimed that the bank must have made an error. Because the bank had just closed for a holiday weekend, the husband endured a couple of days of strained relations with his wife before he could go to the bank and have the transaction records reviewed. On further review, the bank discovered that the charges were erroneous and should have been charged to another account.
Can the husband recover damages from the bank for defamation?
No, because the bank representative made the statements for the wife’s benefit.
A qualified privilege is recognized where the recipient has an interest in the information and it is reasonable for the defendant to make the publication of the statement.
A man who was a trick shot artist persuaded a college student to audition as his partner in his trick shot performances for a show. The man drove the student to an open field to practice his shooting, but in talking with him, she soon realized that he was no longer a part of that show and refused to participate any further.
If the student brings an action for false imprisonment against the man for the time she was in his car, which of the following would be the man’s best defense?
His best defense would be that the student consented to get in the car. Although the man fraudulently induced the student to practice with him, this fraud (that he was no longer a part of the show) went to a matter collateral to the student’s consent to be confined in the car.
A photographer trying to get a photo of a celebrity without her sunglasses on picked up a small rock, approached the celebrity, and poised the rock as if he were about to throw it at her. He called to her, “Take off those glasses or I’ll let you have it.” The celebrity was frightened and took off her glasses.
May the star recover from the photographer in an action for assault?
Yes. A conditional threat does not negate assault.
What is a landowner’s duty with regard to guests on his land?
A landowner has a duty of ordinary care to control the acts of guests on the property.
When may a private citizen make an arrest?
Only if (1) a felony has in fact been committed and (2) the citizen has reasonable grounds for believing that the person arrested has committed it.
A failed arrest by a private citizen is false imprisonment.
What are the elements for the tort of interference with business relations?
(1) existence of a valid contractual relationship between plaintiff and a third party or a valid business expectancy of plaintiff; (2) defendant’s knowledge of the relationship or expectancy; (3) intentional interference by defendant that induces a breach or termination of the relationship or expectancy; (4) damage to plaintiff
When is conduct privileged against an interference with business relations claim?
When it is a proper attempt to obtain business for the interferor. Consider the type of business relationship involved (prospective vs. existing contract), the means of persuasion used, whether the defendant is a competitor of the plaintiff, and the defendant’s relationship with the third party.
Under the last clear chance doctrine, a defendant will be liable despite the plaintiff’s inattentive peril only if ______.
she had actual knowledge of the peril.
What are the elements of intentional misrepresentation?
(1) misrepresentation by defendant
(2) scienter (knowing or reckless disregard as to truth or falsity of statement)
(3) intent to induce plaintiff’s reliance on the misrepresentation
(4) causation (actual reliance on the misrepresentation)
(5) justifiable reliance on the misrepresentation
(6) damages
What are the elements of negligent misrepresentation?
(1) misrepresentation by defendant in a business or professional capacity
(2) breach of duty toward a particular plaintiff
(3) causation
(4) justifiable reliance
(5) damages
In a products liability case based on negligence or strict liability where personal injury resulted, when may a disclaimer of liability be raised as a defense?
Never.
When is contributory negligence a defense in a strict liability tort action for an abnormally dangerous activity?
When the plaintiff knew of the danger of an abnormally dangerous activity and his unreasonable conduct caused the harm from the activity.
How is an action for breach of express warranty different from an action for breach of the implied warranty of merchantability?
An express warranty need not be made by a merchant (it applies to all sellers).
Horizontal privity is present in a products liability action when the injured plaintiff is the buyer of the product rather than a family member or bystander.
What is the majority rule regarding horizontal privity in actions based on breach of implied warranties of merchantability and fitness?
Most states extend implied warranty protection to cover a buyer’s family, household, and guests who suffer a personal injury.
What is the causation standard for intentional torts?
The conduct of the defendant must be a substantial factor in bringing about the injury. An intentional tortfeasor is liable for all consequences of his tort even if they are brought about by another person’s negligence or are not reasonably foreseen
When is a person liable for injuries of a rescuer?
When the person negligently put himself in the situation requiring rescue and the rescuer did not act recklessly.
A law student rented a furnished apartment. His landlord began to solicit his advice about her legal affairs, but he refused to provide it. The landlord then demanded that he vacate the apartment immediately. The landlord also engaged in a pattern of harassment, calling the student at home every evening and entering his apartment without his consent during times when he was at school. During these unauthorized visits she removed the handles from the bathroom and kitchen sinks, but did not touch anything belonging to the student. The lease has a year to run, and the student is still living in the apartment. The
student has sued the landlord for trespass to land.
What remedies is the student likely entitled to?
-compensatory damages for removal of faucets and emotional distress
-punitive damages due to landlord acting with malice
-injunctive relief because trespasses are repeated and ongoing and the lease is still in effect
While an equestrian was riding her horse on what she thought was a public path, the owner of a house next to the path approached her, shaking a stick and shouting, “Get off my property.” Unknown to the equestrian, the path on which she was riding crossed the private property of the shouting owner. When the equestrian explained that she thought the path was a public trail, the man cursed her, approached the equestrian’s house, and struck the horse with the stick. As a result of the blow, the horse reared, causing the equestrian to fear that she would fall. However, the equestrian managed to stay on her horse, and then departed. Neither the equestrian nor the horse suffered bodily harm.
What torts may the homeowner be held liable for?
Assault and battery.
The defendant is not privileged to use any type of force against the equestrian unless she was a threat to the owner’s personal safety.
May a plaintiff bringing a nuisance claim recover for solely economic damages?
Yes.
