Torts

Question 1

Abnormally dangerous activities

Answer 1

1) High risk of serious harm to others

2) D cannot engage in the activity without risk

3) Risk can’t be eliminated by being careful

4) Not commonly undertaken in the community

Question 2

Causes of action for product liability

Answer 2

1) Intentional tort

2) Strict liability for defective product
-Design defect
-Manufacturing defect
-Inadequate warning

3) Negligence

4) Breach of warranty
-implied
-express
-warranty of merchantability

Question 3

Design defect

Answer 3

Test 1) Ordinary consumer expectation
Product is more dangerous than the ordinary consumer who possess ordinary knowledge common to the community would expect

Test 2) Risk-utility test
Product is defective if there is an alternative design that would have reduced the danger at about the same cost

Question 4

Manufacturing defect

Answer 4

P must show that the defect was not intended by manufacturer and that it had the flaw when it left manufacturer’s hands

Question 5

Inadequate warning

Answer 5

Failure to warn a plaintiff that a product presents a threat to personal injury. P must establish:

1) Manufacturer knew/should have known about the danger

2) Manufacturer failed to take steps that a reasonable person would take to warn of the danger

Question 6

Warranty of merchantability

Answer 6

Product is fit for its intended use

Question 7

Learned intermediary doctrine

Answer 7

If you warn a “learned intermediary” about the dangers of the product with the expectation that they pass the info to the conusmer, and then they don’t, then the learned intermediary becomes the intervening superseding cause and the manufacutrer is no longer liable

Question 8

Defenses to strict product liability

Answer 8

Learned intermediary

Unforeseeable unintended uses

Alteration of product

Assumption of risk

Contributory negligence – look for misuse

Question 9

Defamation - tort

Answer 9

1) Defamatory message

2) Can be believed as truthful (hyperbole/opinion doesn’t count)

3) harms reputation

4) Publication - third party hears it

Question 10

Libel

Answer 10

Defamation but written

reputational harm is presumed but damages must be proven

Question 11

Slander

Answer 11

Defamation but spoken

Must show actual economic losses

Question 12

Slander per se

Answer 12

Slander about:

Job performance

Heinous crimes

Having a “loathsome disease”

Lack of chastity to a woman

Question 13

Defamation defenses

Answer 13

Truth (exception: private individual + topic of private concern)

First amendment

Absolute immunity categories (communications between spouses, courts proceedings, legislature floor)

Qualified immunity categories - (comment about public interest made to person who can protect that interest, matter of interest to recipient of communication, communication reasonably necessary to protect D’s interests)

Question 14

Economic torts

Answer 14

Intentional misrepresentation

Negligent misrepresentation

Interference with contract

Interference with future economic advantage

Injurious falsehood

Question 15

Negligent misrepresentation

Answer 15

Requires fiduciary relationship, or D knows they’re representing a 3rd party and P relies on and suffers loss (like lawyer/accountant)

Question 16

Public nuisance

Answer 16

Things that cause harm to general public health and safety

Question 17

Private nuisance

Answer 17

Substantially and unerasonbly interferes with P’s use and enjoyment of her land

Factors:
1) Value of D’s activity

2) alternatives to D

3) nature of locality

4) extent of P’s injury

5) who was there first (come to the nuisance)

Question 18

Nuisance remedy

Answer 18

Usually an injunction – must show IRREPERABLE DAMAGE if activity continues and that $ are inadequate

Question 19

Elements of an unintentional tort

Answer 19

1) Duty

2) Breach

3) Causation
-Actual (but-for)
-Proximate (foreseeable)

4) Damages

Question 20

Negligent infliction of emotional distress

Answer 20

D engages in conduct and P’s emotional distress has some sort of PHYSICAL MANIFESTATION
-P must be in ZONE OF DANGER, risk of physical harm
-physical harm occurs to a CLOSE relative and P suffers emotional harm as a result of the injury to the close relative

Question 21

Suing the government?

Answer 21

Gov acting as private person = liability

Ministerial duties = liability once undertaken to act

Gov agency/pro rescuers = no duty

Discretionary function = no liability

Question 22

Duty to rescue

Answer 22

Special relationship (parent/child, drinking buddies, captain/passenger)

You started to rescue already

You created the hazard

Question 23

Invitees

Answer 23

Express invite + for landowner’s benefit (customers)

Landowner has duty of REASONBLE CARE and must SEEK OUT dangers

Question 24

Licensees

Answer 24

Express invite + not for landowner’s benefit. Social guests

Must warn of CONCEALED DANGERS that are NOT OBVIOUS

Question 25

Trespassers

Answer 25

No willful/wanton harms – aka no setting traps

If there are REPEAT TRESPASSERS, must warn about KNOWN ARTIFICIAL DANGERS (e.g. illegal hiking trail through yard)

Question 26

Attractive nuisance

Answer 26

Child trespasser = invitee if there’s an attractive nuisance.

Factors

1) Child too young to appreciate danger

2) D knows/has reason to know of trespass

3) D knows of danger

4) Dangerous condition is artificial

5) risk of danger outweighs utility/burden of fixing it

Question 27

Doctor standard of care

Answer 27

General practitioner – same care of physicians in good standing in the geographic community

Specialist – national standard of care

Question 28

Negligence per se

Answer 28

1) P is member of class law is designed to protect, and…

2) type of injury incurred is type of injury law is designed to prevent

Defense: excused violation

Question 29

Res ipsa loquitor

Answer 29

This type of accident doesn’t usually happen without negligence

Factors:

1) this type of thing doesn’t happen without negligence

2) D has control over instrumentality of the harm

3) P did not contribute to injury

Question 30

Alternative liability

Answer 30

Summer v. tice “who shot him” problem

1) All Ds negligent

2) All Ds sued

3) Small number of Ds

Result: Burden shifts to Ds to prove their innocence

Question 31

Collateral source rule

Answer 31

If P has insurance to cover harms, D still has to pay in full

Question 32

Punitive damages

Answer 32

Granted for willful/reckless conduct

Question 33

Comparative fault

Answer 33

Pure: Damages - P’s percentage of fault (default)

Modified: If P >50% at fault, no recovery

Question 34

Assumption of risk

Answer 34

P relieves D of responsibility to be non-negligent

Doesn’t apply to recklessness/gross negligence

Question 35

Implied assumption of risk

Answer 35

1) P knew and apprecaited nature of risk

2) P knew specific danger to him

3) P voluntarily chose to subject himself to that danger

Question 36

Intentional tort requirements

Answer 36

1) Voluntary act

2) Intent

3) Causation

4) Harm

Question 37

Battery - tort

Answer 37

Harmful/offensive contact with P or with something closely connected to P’s person

1) Intent – desire to cause harmful contact or know with substantial certainty that it would happen

2) Harmful / offensive dontact – offensive by standard of reasonable person

3) to person or something physically connected thereto

Question 38

Assault - tort

Answer 38

Intentionally cause to have a reasonble apprehsnion of an imminent harmful or offensive contact

Words rarely enough

Question 39

False imprisonment - tort

Answer 39

D intentionally causes P to be confined to a bounded area against P’s will and P knows of the confinement or is injured by it

Question 40

Intentional infliction of emotional distress

Answer 40

D engages in intentional or RECKLESS (notice that’s an exception to normal intentional tort rule!) amounting to extreme and outrageous conduct that causes severe emotional distress.

–A very high bar

1) Intent or recklessness

2) Extreme and outrageous conduct
–conduct exceeds all bounds tolerated by civilized society
–offensive or insulting language typically not enough UNLESS
—-D is common carrier/innkeeper
—-D knows of P’s particular sensitivity
—-D is an authority figure using racial/ethnic slurs against subordinate

3) Distress must be severe
-Greater than what a reasonable person would be expected to endure
-Must be substantial and long-lasting

Question 41

Trespass to land

Answer 41

Intentional act that causes a physical invasion of P’s land and interferes with P’s possessory interest in the land (and that interest includes “stay off my land”)

Mistake is no defense

Question 42

Trespass to chattels

Answer 42

P interferes with D’s chattels and causes damage
—MISTAKE IS NO DEFENSE

Question 43

Conversion

Answer 43

Intentional act by D where D exercises DOMINION and CONTORL that causes the DESTRUCTION of, or serious and substantial INTERFERENCE with, P’s chattel
—-MISTAKE IS NO DEFENSE

Remedies:
Forced sale
Replevin (give stuff back)

Question 44

Defenses to intentional torts

Answer 44

POPCANS

Privilege - D has privilege to behave the way they did

Others (defense of)
– liable for mistakes

Property (defense of)
–Can forcibly eject trespasser after asking them to leave
–Can recapture chattel if you ask for it back first unless asking would be futile + you’re in hot pursuit

Consent

Authority (e.g. cops can arrest people, store owners can detain suspected thieves)

Necessity
-Private necessity – reasonable person belies they need to commit tort to avoid greater harm (still liable for compensatory damages)

Self-defense
–Force proportionate