Torts

Question 1

Who does a defendant owe a duty to?

Answer 1

Foreseeable plaintiffs

Question 2

What must be taken into account for duty?

Answer 2

Defendant’s physical characteristics, age, superior knowledge.

Question 3

If a defendant is a child, what factors do you need to examine for duty?

Answer 3

Age, intelligence, experience

Question 4

What duty is owed to an undiscovered trespasser?

Answer 4

No duty of care is owed

Question 5

What duty is owed to an discovered trespasser?

Answer 5

land
possessor must warn of or
make safe any known
unreasonably dangerous
artificial concealed
conditions.

Question 6

What is a licensee?

Answer 6

A social guest

Question 7

What duty is owed to a licensee?

Answer 7

Land possessor must warn of or make safe any known dangerous conditions.

Question 8

What duty is owed to an invitee?

Answer 8

Land possessor must warn of or make safe any dangers he knows or should know of.

Question 9

What is negligence per se:

Answer 9

Defendant
violated a statute without
excuse and caused injury to a
plaintiff that was in the class of
persons that the statute was
trying to protect and who received
the type of harm that the statute
was trying to prevent. (This is
conclusive proof of duty and
breach, if proved.)

Question 10

When is a defendant liable for harm?

Answer 10

A defendant
must breach
his duty in
order to be
liable for the
harm.

Question 11

What is res ipsa loquitur?

Answer 11

It means “the thing speaks for itself.” It’s used when something clearly shows negligence just by what happened, without needing more proof.

Question 12

What do you have to prove with actual cause?

Answer 12

One must prove that if
the breach did not
happen the harm would
not have occurred.

Question 13

If there are alternative causes what do you need to show? (actual cause)

Answer 13

If there are alternative
causes, show all
defendants are joined
and they are all
negligent (then the
burden shifts to the
defendants to show
they are not negligent).

Question 14

If two people are acting in concert, what test do you use? (actual cause)

Answer 14

substantial factor test. which states that as long as a defendant’s actions were a substantial factor in the crime, then that defendant can be found guilty.

Question 15

What is proximate cause?

Answer 15

Proximate cause is the main reason an event happens. It shows a direct link between an action and the result, like in an accident.

The harm that occurred
must be foreseeable.
(Note: the harm must be
foreseeable—not
necessarily the manner
in which it occurred or
the extent of harm
sustained.)

Question 16

When is proximate cause present?

Answer 16

Proximate cause is
present if a disease or
subsequent accident
occurs after an accident,
medical malpractice
occurs after an accident,
rescue efforts occur, etc.

Question 17

When is the plaintiff compensated for all of his damages for personal injury actions?

Answer 17

For personal injury
actions, the plaintiff is
compensated for all of
his damages including
both economic
damages (medical
expenses, lost wages,
etc.) and noneconomic
damages (pain and
suffering, etc.). There must be an
actual injury.
Punitive damages are
not recoverable for
conduct that is merely
negligent

Question 18

What is the eggshell skull rule?

Answer 18

Plaintiff recovers all
damages even if they
are larger than
defendant would have
anticipated.
Foreseeability of the
extent of harm is not
required; just that
some harm is
foreseeable.

Question 19

What is key factor for something to be an intentional tort?

Answer 19

Intent is key. If the defendant doesn’t have the intent to engage in the behavior, then there can be no intentional tort.

Question 20

What are examples of intentional torts?

Answer 20

Battery, assault, false imprisonment, intentional infliction of emotional distress, trespass to land, trespass to chattels or conversion

Question 21

What’s a battery?

Answer 21

Act with intent to cause contact or apprehension, contact occurs.

Question 22

What’s an assault?

Answer 22

Act with intent to cause contact or apprehension, apprehension occurs.

Question 23

What is false imprisonment?

Answer 23

Act with intent to confine and confinement occurs

Question 24

IIED

Answer 24

mnemonic = RES (defendant Recklessly or Intentionally engages in extreme or outrageous conduct and Severe emotional distress results)

Question 25

Negligent Infliction of Emotional Distress

Answer 25

Negligent injury, someone is in the zone of danger or sees a close family member get hurt, and suffers a physical manifestation

Question 26

What is Trespass to land

Answer 26

Defendant intends to be where he is and it is someone else’s land

Question 27

Trespass to chattels or conversion

Answer 27

Defendant intentionally interferes with the property of another and damage results. Trespass=minor damage. Conversion=major damage.

Question 28

What are defenses to intentional torts?

Answer 28

Consent, self-defense, necessity (public or private. for a private necessity, plaintiff must show unique harm)

Question 29

What do you need to show for defamation for a private figure?

Answer 29

The plaintiff needs to show at least negligence

Question 30

What do you need to prove for public figure defamation?

Answer 30

Plaintiff needs to show malice

Question 31

Privacy torts (mnemonic = FAID)

Answer 31

False light
Appropriation
Intrusion
Disclosure

Question 32

False light

Answer 32

Widely disseminating info that is true but makes plaintiff look dumb and embarrassed, even if it isn’t harmful to your reputation

Question 33

Appropriation

Answer 33

Using someone’s name/likeness for commercial benefit

Question 34

Intrusion

Answer 34

Invading privacy without permission like secretly spying

Question 35

Disclosure

Answer 35

Widely disseminating confidential information

Question 36

Strict liability torts applies to what three claims

Answer 36

Wild animals, abnormally dangerous activities, strict products liability

Question 37

When does Strict products liability apply

Answer 37

Applies when the defendant is a merchant, the product is defective
(manufacturing defect, design defect, or lack of warning/instructions), and
plaintiff makes foreseeable use of the product. On the MBE, the plaintiff may
sue everyone in the chain of distribution.

Question 38

Nuisance:

Answer 38

a substantial and unreasonable interference with the plaintiff’s use and enjoyment
of his land.

Question 39

Multiple Defendant Issues:

Answer 39

• Employers can be vicariously liable for the torts of their employees.
• Principals are not usually liable for the torts of independent contractors unless it is a
  nondelegable duty (i.e., concerning safety, like keeping the premises safe)
• Joint and several liability applies on the MBE. The plaintiff may sue either or both defendants
  for the full amount of damages (but can only recover once).
  o Indemnity is when one defendant seeks 100% of the damages from the “actively
  negligent” or guilty party (e.g., an employer can seek it from his employee).
  o Contribution: defendant seeks to be paid his or her share of damages from a liable
  co-defendant.

Question 40

General rule for independent contractor liability:

Answer 40

General rule: A principal is not generally liable for torts of his
independent contractor because he has less control over the
independent contractor. The less control that an employer has
over a worker, the more likely they are to be an independent
contractor rather than an employee.

Question 41

When may the princinpal be liable for the acts of the independent contractor?

Answer 41

(1) Nondelegable duty or inherently dangerous activity:
(a) Example of a nondelegable duty: A landowner has a nondelegable duty to keep
her premises in safe condition. Thus, if the contractor she hires is negligent and
someone is injured on the premises as a result, the landowner will be liable.
(2) Direct liability: A principal may be liable for his own negligence in hiring, firing, or
supervising his agent. This is direct liability.
(a) Ex.: A pizza delivery company hires a 14-year-old as an independent contractor to deliver pizza
without inquiring as to his age or doing a background check. If the 14-year-old gets into an
accident, the pizza company may be directly liable for failing to do a background check.

Question 42

Nondelegable duty or inherently dangerous activity

Answer 42

(1) Nondelegable duty or inherently dangerous activity:
(a) Example of a nondelegable duty: A landowner has a nondelegable duty to keep
her premises in safe condition. Thus, if the contractor she hires is negligent and
someone is injured on the premises as a result, the landowner will be liable.

Question 43

Direct liability

Answer 43

A principal may be liable for his own negligence in hiring, firing, or
supervising his agent. This is direct liability.
(a) Ex.: A pizza delivery company hires a 14-year-old as an independent contractor to deliver pizza
without inquiring as to his age or doing a background check. If the 14-year-old gets into an
accident, the pizza company may be directly liable for failing to do a background check.
iii) Note: an employer is not vicariously liable for the torts of his customers (but he may be
directly liable for his own negligence).

Question 44

Joint and several liability:

Answer 44

Means that the plaintiff may recover all of his damages from either defendant (but cannot recover twice!)

Applies on the MBE unless stated otherwise.

Doesn’t apply if the harm to the plaintiff is apportionable and the defendants were not acting in concert.

Question 45

Several liability:

Answer 45

Each defendant is only liable for his percentage of fault.

Question 46

Contribution

Answer 46

if defendants are jointly and severally liable and one defendant pays the
entire amount of damages owed, then he can seek the percentage owed by other
defendants (this is called contribution—i.e., the defendant is “contributing” to the total
damages amount).

Question 47

Indemnity

Answer 47

This is when one defendant can seek 100% of the damages from the other
defendant. This usually occurs when there is one obviously “actively negligent” party. This is
generally seen in two scenarios: (Feb 2015)
(1) Vicarious liability: for example, if an employer is sued after his employee
negligently trips a customer, the employer could seek indemnity from the employee,
the actively negligent party.
(2) Products liability: if a retailer is sued in strict liability, they may seek indemnity all
the way up the chain until the manufacturer ultimately pays.

Question 48

Is a principial generally vicariously liable for its indepndent contractor’s torts?

Answer 48

No, a principal is generally not vicariously liable for its independent contractor’s torts.

Question 49

When is vicarious liability imposed for an independent contractor? When they breach what?

Answer 49

Vicarious liability will be imposed when the independent contractor breaches a nondelegable duty of care owed by the principal—e.g., a land possessor’s duty to keep the premises safe for business visitors.

Question 50

A trespass is excused when it arises from a private necessity, but when is the trespasser liable?

Answer 50

Although a trespass is excused when it arises from private necessity—i.e., an intrusion that is, or reasonably appears to be, necessary to protect oneself, third parties, or property—the trespasser is still liable for actual damages caused by the trespass unless the entry was for the landowner’s benefit.

Question 51

What’s a private necessity?

Answer 51

an intrusion that is, or reasonably appears to be, necessary to protect oneself, third parties, or property

Question 52

What’s a public necessity?

Answer 52

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)

Question 53

What duties does a land possessor owe an invitee?

Answer 53

Land possessors owe invitees a duty of reasonable care. This includes the duty to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from those conditions.

Question 54

What duty does a land possessor owe to a trespasser?

Answer 54

A land possessor owes no duty to trespassers—i.e., persons who intentionally enter another’s land without permission—unless the land possessor discovers or has reason to anticipate their presence.

Question 55

What’s the mnemonic for “special relationships” that have a duty to protect others? And what does it mean?

Answer 55

Please Help Eliminate Safety Concerns Causing Injuries

Parent/child
Hospital/patient
Employer/employees
Shopkeeper/business invitees
Common carrier/passengers
Custodian/person in custody
Innkeeper/guests

Question 55

Under the doctrine of joint and several liability, when multiple tortfeasors cause the plaintiff indivisible harm, what is each tortfeasor liable for?

Answer 55

Under the doctrine of joint and several liability, when multiple tortfeasors cause the plaintiff indivisible harm, each tortfeasor is liable for the total amount of the plaintiff’s damages.

Question 55

When is a product defective due to inadequate warnings or instructions?

Answer 55

A product is defective due to inadequate warnings or instructions when (1) it poses a foreseeable risk of harm that is not obvious to an ordinary user and (2) reasonable instructions or warnings could have reduced that risk.

Question 56

When does assumption of the risk arise?

Answer 56

Assumption of the risk arises when a person voluntarily engages in an activity with the knowledge that it carries inherent risks. A finding that the plaintiff did so can reduce or bar the plaintiff’s recovery. Here, while it is arguable that the student assumed the risk of a bicycling-related injury by riding while intoxicated (e.g., falling), it is unlikely that he also assumed the risk of being run over while lying in the street.

Question 57

Establishing a profession’s applicable standard of care—and a defendant’s deviation from that standard—typically requires expert testimony. But when is expert testimony not required?

Answer 57

Establishing a profession’s applicable standard of care—and a defendant’s deviation from that standard—typically requires expert testimony. But when the defendant’s negligence is so apparent that a lay person could identify it, expert testimony is not required.

Question 58

What’s a risk-utility test?

Answer 58

A risk-utility test in tort law is a way to determine if a product or action is unreasonably dangerous.

The risk-utility test involves asking these questions:

How severe are the risks? How bad could the injuries be if something goes wrong?
How likely are the risks? What is the chance that someone will get hurt?
What are the benefits? How much do people enjoy or find your bicycle useful?
Can the risks be reduced? Is there a way to make the bicycle safer without losing too many of its benefits? For example, adding better brakes might make it a bit heavier but much safer.

Question 59

When does trespass to land occur? And what intent does the defendant need?

Answer 59

Trespass to land occurs when a defendant intentionally enters—or causes something to enter—another’s land. The defendant need only have the intent to enter or cause a physical invasion of the land—not the intent to commit a wrongful trespass.

Question 60

What is assumption of the risk and when does it not apply?

Answer 60

Assumption of the risk (i.e., the plaintiff’s voluntary acceptance of a known risk of harm) is a defense to negligence. But this defense does not apply when the defendant’s tortious conduct left the plaintiff with no reasonable alternative but to proceed despite that risk.

Question 61

What are nondelegable duties?

Answer 61

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

Question 62

Are parents strictly liable for intentional torts of their minor children?

Answer 62

Parents are not strictly liable for the intentional torts of their minor children. Instead, a parent can be (1) liable for his/her own negligence for failing to use reasonable care to prevent the child from causing foreseeable harm or (2) vicariously liable for a child’s actions in certain circumstances (e.g., when a statute imposes that liability).

Question 63

Respondeat superior

Answer 63

The doctrine of respondeat superior is a legal doctrine in tort law that holds employers liable for the wrongful acts of their employees or agents if those acts occur within the scope of employment. Respondeat superior is a doctrine that holds employers vicariously liable for torts committed by their employees—not independent contractors. An independent contractor is one engaged to accomplish a task but not subject to another’s right to control the method and means by which the task is performed. Since the landscaper here fits this description, respondeat superior is unlikely to apply.

Question 64

Explain what a plaintiff can recover under a comparative negligence doctrine and under joint and several liability.

Answer 64

Under the pure comparative-negligence doctrine, a negligent plaintiff’s recovery is reduced by his/her proportionate share of fault. And under joint and several liability, any one of multiple tortious defendants who caused the plaintiff indivisible harm can be held liable for the plaintiff’s total amount of damages.

Question 65

What are the elements of assault?

Answer 65

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

Question 66

What is the effect of a plaintiff’s negligence on a strict products liability action?

Answer 66

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.

Note: 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.

Question 67

What qualifies as contact with the “plaintiff’s person” for the purposes of battery?

Answer 67

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).

Question 68

When may a private actor make an arrest?

Answer 68

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.

Question 69

What are the elements of false imprisonment?

Answer 69

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 minority of jurisdictions, a plaintiff who was not conscious of the confinement may still recover if harmed by the confinement).

Question 70

In what ways may a plaintiff be confined resulting in false imprisonment?

Answer 70

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.

Question 71

In what circumstances does a landlord have negligence liability to a tenant or third party for injuries suffered on the leased premises?

Answer 71

“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.”

Question 72

What level of force may be used when recapturing one’s personal property?

Answer 72

A person is generally not privileged to commit battery, assault, or false imprisonment to regain possession of personal property.

Question 73

When may someone use force to defend property?

Answer 73

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.

Question 74

Who may be a defendant in a strict products liability action?

Answer 74

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.

Question 75

What is the effect of a plaintiff’s establishment of res ipsa loquitur?

Answer 75

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.

Question 76

When determining whether contact is offensive for the purposes of battery, what are the objective and subjective tests?

Answer 76

Objective test: contact is offensive when a person of ordinary sensibilities (i.e., a reasonable person) would find the contact offensive.

Subjective test: contact is offensive when 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 liability violates public policy).

Question 77

What are the Andrews and Cardozo views regarding the foreseeability of a plaintiff?

Answer 77

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.

Question 78

Must the plaintiff be aware of what is happening for an act to constitute assault or battery?

Answer 78

For assault, the plaintiff must be aware or have knowledge of the defendant’s act or threat. However, there is no such requirement for battery.

Question 79

What are six circumstances in which a defendant has an affirmative duty to act?

Answer 79

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 of another but does not expressly or impliedly create or reject a private cause of action may give rise to an affirmative duty to act.

Question 80

What is the majority rule for proximate cause?

Answer 80

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.

Question 81

What is a “Good Samaritan” statute?

Answer 81

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.

Question 82

Difference between ordinary and gross negligence.

Answer 82

Being convicted of negligence generally means there was a careless mistake or some inattention that resulted in an injury. Gross negligence is a reckless or deliberate disregard for the reasonable treatment or safety of others.

Question 83

What are the elements of defamation?

Answer 83

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 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.

Question 84

Name the three types of entrants to whom a possessor of land owes a duty and and the duty owed to each.

Answer 84

1. Trespasser - A land possessor is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers. (Note: 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. (Note: 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. (Note: 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.)

Question 85

What are the rules regarding the use of force by parents in disciplining a child?

Answer 85

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.

Question 86

What does it mean to be “confined within a limited area” for the purposes of false imprisonment?

Answer 86

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.

Note: An area is not bounded if there is a reasonable means of safe escape of which the plaintiff is aware.

Question 87

What are the elements of res ipsa loquitur under the traditional approach?

Answer 87

Under the traditional standard for res ipsa loquitur, the plaintiff must prove that:
i) The accident was of a kind that ordinarily does not occur in the absence of negligence;
ii) It was caused by an agent or instrumentality within the exclusive control of the defendant; and
iii) It was not due to any action on the part of the plaintiff.

Question 88

When may someone use deadly force to defend property?

Answer 88

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.

Question 89

What is the traditional rule for contributory negligence?

Answer 89

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.

Question 90

What is the firefighter’s rule?

Answer 90

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.

Question 91

What types of damages are permitted for strict products liability claims?

Answer 91

Only personal injury or property damage. A claim for purely economic loss must be brought as a breach-of-warranty action.

Question 92

How does product misuse affect the recovery of damages in a strict products liability action?

Answer 92

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.

Question 93

What are two ways in which assault differs from battery?

Answer 93

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.

Question 94

Negligent infliction of emotional distress occurs under the special-situations theory when the plaintiff suffers serious emotional distress because the defendant negligently what?

Answer 94

Negligent infliction of emotional distress occurs under the special-situations theory when the plaintiff suffers serious emotional distress because the defendant negligently (1) delivered an erroneous announcement of death or illness, (2) mishandled a corpse or bodily remains, or (3) contaminated food with a repulsive foreign object.

Question 95

What must a plaintiff prove for res ipsa loquitur

Answer 95

Under the traditional standard for res ipsa loquitur, the plaintiff must prove that (i) the accident was of a kind that ordinarily does not occur in the absence of negligence, (ii) it was caused by an agent or instrumentality within the exclusive control of the defendant, and (iii) it was not due to any action on the part of the plaintiff. Even under the traditional requirements, courts often generously interpret the “exclusive control” requirement.