Torts Flashcards
What are the elements of battery?
A prima facie case for battery requires that the plaintiff show that
(i) the defendant intended to cause contact with the plaintiff’s person,
(ii) affirmative conduct caused such a contact, and
(iii) the contact caused bodily harm or was offensive to the plaintiff.
A defendant intentionally causes the contact if he acts with the desire to bring about the contact or engages in action knowing that the contact is substantially certain to occur.
In most jurisdictions, the defendant need only intend to bring about the contact, not that the defendant intends the contact to be harmful or offensive (often called the single-intent rule).
What is vicarious liability?
An employer is vicariously liable for an employee’s torts if the employer has the right to control the activities of the employee.
What is a defense to battery?
Consent is a defense to battery and can be express, apparent, or presumed. Apparent consent exists and a defendant will not be liable for otherwise tortious conduct if the defendant reasonably believes that the plaintiff actually consents to the conduct, even if the plaintiff does not.
When may a seller or distributor of a defective product be held liable?
In a cause of action based on strict products liability, the seller or distributor of a defective product may be liable for any harm to persons or property caused by such product. A product is defective when, at the time of the sale or distribution, it contains a manufacturing defect, a design defect, or inadequate instructions or warnings.
What are the elements of a manufacturing defect claim?
To prevail on a strict liability claim based on a manufacturing defect, the plaintiff must show that (i) the product was defectively manufactured, (ii) the defect existed when the product left the defendant’s control, (iii) the defect caused the plaintiff’s injury, and (iv) the product was used in a reasonably foreseeable way.
What are tests used to prove a design defect claim?
Consumer-expectation test—P must prove that product is dangerous beyond expectation of ordinary customer
Risk-utility test—P must prove that reasonable alternative design that is economically feasible was available to D, and failure to use that design rendered product unreasonably dangers.
When is a manufacturer liable for a failure to warn?
Exists if there were foreseeable risks of harm, not obvious to ordinary user of product, which could’ve been reduced or avoided by providing reasonable instructions or warnings.
If for something like prescription drugs, then duty to warn is the duty to warn the doctor, not the patient directly.
What are the elements of negligence?
A prima facie case of negligence requires proof of a duty, breach of that duty, causation, and damages.
To who is a duty of care owed to?
In general, a duty of care is owed to all foreseeable persons who may foreseeably be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances.
What is the implied warranty of merchantability?
The implied warranty of merchantability warrants that the product being sold is generally acceptable and reasonably fit for the ordinary purposes for which it is being sold. Any product that fails to live up to this warranty constitutes a breach, regardless of any fault by the defendant.
What is the market share liability doctrine?
Under the market share liability doctrine, if the plaintiff’s injuries are caused by a fungible product and it is impossible to identify which defendant placed the harmful product into the market, the jury can apportion liability based on each defendant’s share of the market.
What is the alternative causation doctrine?
Under the alternative causation doctrine, if the plaintiff’s harm was caused by (i) one of a small number of defendants, (ii) each of whose conduct was tortious, and (iii) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff’s harm.
What is the concert of action doctrine?
Under the concert of action doctrine, if two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the plaintiff’s harm, then all the defendants will be held jointly and severally liable.
What is the balancing test for deciding whether specific precautions are warranted?
In determining whether a specific precaution was warranted, a jury must weigh the probability and gravity of the injury against the burden of taking such precautions.
The modern trend is to perform a cost-benefit analysis to determine whether the defendant has acted in accordance with the standard of care. This analysis considers:
(i) the foreseeable likelihood that the defendant’s conduct would cause harm,
(ii) the foreseeable severity of any resulting harm, and (iii) the defendant’s burden in avoiding the harm.
Evidence of custom in an industry may be offered to establish the standard of care, but such evidence is not conclusive.
When is an activity considered to be abnormally dangerous such that the defendants must be held strictly liable?
Defendants engaged in abnormally dangerous activities may be held strictly liable for damages caused by that activity, even in the absence of negligence. Activities are considered abnormally dangerous if they create a foreseeable and highly significant risk of physical harm even in the exercise of reasonable care, and the activity is not commonly engaged in.
