Torts Flashcards
Negligence
A prima facie case of negligence requires proof of a duty, breach of that duty, causation, and damages. 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.
Doctor Standard of Care
A physician is held to a national standard and is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner.
Strict Product Liability
Under strict products liability, the manufacturer, retailer, or other distributor of a defective product may be liable for any harm caused by the product. The plaintiff must prove (i) the product was defective (in manufacture, design, or failure to warn), (ii) the defect existed at the time the product left the defendant’s control, and (iii) the defect caused the plaintiff’s injuries when the product was used in an intended or reasonably foreseeable way.
Manufacturing Defect
A manufacturing defect is 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 own specifications.
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.
Market Share Liability
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.
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.
Concert of Action
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.
Private nuisance
Private nuisance is a substantial and unreasonable interference with the use and enjoyment of the plaintiff’s property. An interference is substantial if a normal, reasonable person in the community would find the interference offensive, inconvenient, or annoying—even if the plaintiff is not personally bothered by it.
Res Ispa Loquitor
negligence can be inferred in the absence of direct evidence if (1) the plaintiff’s harm would not normally occur absent negligence, (2) the defendant had exclusive control over the thing that caused the harm, and (3) the harm was not due to the plaintiff’s actions.
Last Clear Chance
In a contributory negligence jurisdiction, the last clear chance doctrine allows a plaintiff to recover despite his/her contributory negligence if the defendant (1) had the last clear chance to avoid the plaintiff’s injury but (2) failed to use reasonable care to do so.
Strict Product Liability
Any commercial supplier or seller in the chain of distribution may be subject to strict products liability if (1) the product contained a defect when it left that commercial supplier’s or seller’s control and (2) the defect caused the plaintiff’s harm.
Invasion of privacy based on publicity in a false light
the defendant publicized false information about the plaintiff.
Invasion of privacy based on public disclosure of private facts
requires that the defendant publicly disclosed truthful information about the plaintiff.
