Torts

Question 1

Battery

Answer 1

(1) D causes harmful or offensive contact w/ person of another; and
(2) acts w/ intent to cause that contact or apprehension of that contact.

Causation–must result in contact

Offensive–to a person of ord sensibilities (lack of express/implied consent indicates offensive).

Contact–does not need to be direct; contact w/ anything connected to P’s person qualifies as contact w/ the P’s person for purposes of battery.

Intent–only reqs intent to contact, not offense.

Transferred intent applies–i.e. the defendant’s intent to commit a battery against one person may be transferred to a different person.

Damages–eggshell-P rule applies so D liable for all harm that flows even if much worse than D expected (but no proof of damages req to prevail).

Question 2

Assault

Answer 2

(1) D causes reasonable apprehension of imminent harmful or offensive bodily contact; and

(2) D intends to cause apprehension of such contact or to cause such contact itself.

Apprehension–must be reasonable and P must be aware of D’s action (unlike battery).

Question 3

IIED

Answer 3

D intentionally or recklessly engages in extreme and outrageous conduct that causes P severe emotional distress. Public figures must also prove publication of a false statement made w/ actual malice to recover for IIED.

Extreme and outrageous–conduct exceeds possible limits of human decency, so as to be intolerable in civilized society (more likely if D in position of auth over P or P is young child/elderly).

Severe ED–if P is hypersensitive and experiences severe ED unreasonably, then there is no liability unless D knew of P’s heightened sensitivity.

Intent–to cause ED or act w/ reckless disregard as to risk of causing ED.

Damages–P must prove severe ED beyond what reasonable P should endure:

General damages–naturally flow from injury; e.g. medical bills and pain and suffering.

Special damages–need to be proven and include damages such as lost wages due to the tort.

3P–A defendant whose extreme and outrageous conduct has harmed a third party may be liable for intentional infliction of emotional distress if:
(1) the plaintiff contemporaneously perceived that conduct;
(2) the plaintiff was closely related to the third party, and
(3) the defendant knew of the plaintiff’s presence and that relationship.

Question 4

False Imprisonment

Answer 4

(1) D intends to confine or constrain another w/in fixed boundaries.

(2) the actions/inactions directly/indirectly result in confinement; and

(3) P is conscious of confinement or harmed by it.

Methods–use of physical barriers, physical force, threats (NOT future threats), invalid invocation of legal auth, duress, or refusing to provide safe means of escape (omission).

Intent–D must act w/ purpose of confining P or knowing P’s confinement sub certain to result.

Damages–nominal and actual available, just like other intentional torts.

Shopkeeper’s Privilege–Store must have reasonable grounds to believe that the customer was stealing, the detention must be for a reasonable period of time, and it must be conducted in a reasonable manner. If all of these elements met then no FI claim.

Question 5

Trespass to Land

Answer 5

D intentionally causes physical invasion of someone’s land w/o prop owner’s permission.

Intent–only reqs intent to enter land, NOT intent to commit wrongful trespass.

Can include:
Physical invasion–includes causing objects to invade land; OR
Intangible invasion–i.e. smoke or vibration–but only if it causes physical harm/damage.

Rightful P–anyone in poss of land

Damages–no proof of actual req

Question 6

Trespass to Chattels

Answer 6

Intentional interference w/ P’s right to poss personal prop by:

–dispossessing P of chattel;
–using or intermeddling w/ P’s chattel;
–or damaging chattel

Intent–only reqs intent to do act, not intent to interfere.

Mistake about legality NOT a defense.

Damages–actual/nominal/loss of use and/or cost of repair.

Question 7

Conversion

Answer 7

Intentionally committing an act depriving P of poss of his chattel or interfering w/ P’s chattel in a manner so serious as to deprive P entirely of use of chattel.

Intent–only reqs intent to commit act that interferes.

Mistake–of law/fact not a defense.

Damages–full value at time of conversion.

Conversion also occurs even when D originally has permission from P but EXCEEDS the scope of that permission.

Question 8

Defenses to Intentional Torts–Consent

Answer 8

Actual (express)–The P by words or actions manifests the willingness to submit to the D’s conduct; D’s conduct may not exceed scope of the consent.

Presumed (implied)–P is silent but in context their silence and continued participation can reasonably be construed as consent–e.g. emergencies, athletic contests and mutual consent to combat.

Watch out for lack of capacity–e.g. youth/incompetency which undermines consent.

Question 9

Defenses to Intentional Torts–Self-defense

Answer 9

Use of reasonable force (i.e. proportional/not excessive) to defend against offensive contact/bodily harm.

Duty to retreat–modern maj rule no duty to retreat before using self D.

Can’t be initial aggressor to claim self-D; injury to bystander ok as long as D not neg toward bystander.

Question 10

Defenses to Intentional Torts–Defense of Others

Answer 10

One is justified in using reasonable force in defense of others upon a reasonable belief that the defended party would be entitled to use self-defense, i.e., that the person was in danger of the imminent use of force. The amount of force exercised must be proportionate to the anticipated harm. Additionally, the defendant is not liable for acting on a mistaken belief that the third party is in danger as long as his belief is reasonable

Question 11

Defenses to Intentional Torts–Defense of Property

Answer 11

Reasonable force may be used if the person reasonably believes it is nec to prevent tortious harm to prop.

NO deadly force allowed in defense of prop, including deadly mechanical devices.

Question 12

Defenses to Intentional Torts–Recapture of Chattels

Answer 12

Reasonable force may be used to reclaim personal prop that has been wrongfully taken, but only if D first reqs its return, unless that would be futile.

Never permitted to regain poss of land.

Question 13

Defenses to Intentional Torts–Privilege of Arrest

Answer 13

Private citizen–D permitted to use reasonable force to make an arrest in the case of a felony if:

(1) felony has actually been committed; and
(2) arresting D has reasonable grounds to suspect P being arrested has committed felony.
—if mistake as to identity of felon or whether felony committed, NO defense.

Misdemeanor–arrest by private P may be only be made if there is a “breach of the peace.”

Question 14

Defenses to Intentional Torts–Insanity Defense

Answer 14

Mental impairment is generally no defense to an intentional tort. So long as the defendant was able to form the requisite intent to do the act, he can be liable.

Question 15

Defenses to Trespass–Necessity (private/public)

Answer 15

Gen available to someone who enters someones’s land to prevent injury or other severe harm.

Private nec–D not liable for nom damages but still liable for actual damages if entered land for D’s benefit (this defense supersedes defense of prop defense to intentional torts)

Public nec–nec to protect large # ppl from public calamity; not liable for any damages.

Question 16

Affirmative Duty to Act

Answer 16

No affirmative duty to help others except:

1) Assumption of duty–P who vol aids another has a duty of reasonable care.

2) Placing another in danger

3) By auth–i.e. P w/ ability and actual auth to control another has duty of RC; e.g. parent/child.

4) By special rel–e.g. common carrier/passenger; hotel/guest; hospital/patient; duty to protect/aid P and to prevent reasonably foreseeable injury to P from 3Ps.

Question 17

Private Nuisance

Answer 17

Activity that sub and unreasonably interferes w/ another’s use and enjoyment of land.

Interference–must be annoying to an ord reasonable person.

Cts balance–the interference w/ utility of nuisance.

Blocking views–not nuisance unless done w/ no other purpose except to block neighbor’s view.

Defenses–compliance w/ local regs used as evidence to determine reasonability; or “coming to nuisance” is another factor.

Remedy–typically injunction to stop nuisance.

Question 18

Public Nuisance

Answer 18

A public nuisance is an unreasonable interference with a right common to the general public.

Typical examples of public nuisance include air pollution, pollution of navigable waterways, interference with the use of public highways, and interference with the public’s use of parks or other public property.
A private citizen has a claim for public nuisance only if she suffers harm that is different in kind
from that suffered by members of the general public (e.g., physical injury).

Question 19

Negligence–Elements

Answer 19

–Duty–ob toward another P
–Breach–failure to meet that ob
–Causation–cause in fact (actual cause) and prox cause (legal cause)
–Damages–loss suffered; Prop damage–no ED damages allowed; PI action–P may sometimes “tack on” non-econ damages including damages for ED; but must first show physical injury.

Question 20

Negligence–Duty

Answer 20

A legal ob to act a certain way.

Duty of care gen owed to all Ps who may foreseeably be injured by D’s course of conduct.

SOC–the level at which one performs their duty; i.e. gen reasonable care.

Scope of Duty:
Maj (Cardozo)–considers whether P member of class of persons who might be foreseeably harmed by conduct; P must show foreseeable risk to prove D owed duty to her–i.e. that P was w/in the D’s “geographic zone of danger.”

Min (Restatement)–any time conduct could harm someone there is a duty to everyone (foreseeability of P examined under prox cause).

Question 21

Negligence–SOC

Answer 21

SOC–reasonably prudent person under the circumstances–obj standard.

Mental/emotional characteristics–same standard as everyone else.

Physical characteristics–modified standard; i.e. RPP w/ like characteristics (e.g. blind).

Intoxication–intoxicated individuals are held to the same standards as sober individuals unless their intoxication was involuntary.

Children–modified standard; i.e. children of similar age/intelligence; UNLESS engaged in adult activity–e.g. driving–then held to RPP standard.

Professionals–A professional person, like an electrician, is expected to exhibit the same skill, knowledge, and care as an ordinary professional in the same community.

Question 22

SOC for Possessors of Land–Traditional Approach

Answer 22

Invitees:
–Enters land for material/econ purpose–e.g. public invitee or business visitor (not req to intend to purchase anything to be classified as invitee); LP owes duty of RC to inspect prop, discover unreasonably dangerous conditions and take reasonable steps to protect invitee–non-delegable duty.

Licensees:
–Express/implied permission (i.e. typically social guests); no duty to inspect for danger but duty to warn of known hidden dangers (or make prop reasonably safe).

Trespasser:
– NO duty RC; but still can’t engage in willful, wanton, intentional misconduct.
–Anticipated trespassers–still duty to warn of hidden non-obvious dangers;
–Attractive Nuisance Doctrine–liable to children for: 1) artificial conditions where LP knows likely to trespass; 2) the risk is one the owner knows or should know involves an unreasonable risk of death/sub bodily harm; 3) the risk is one that children would not realize b/c of their youth; and 4) the owner/occupier’s utility in maintaining the dangerous condition and the burden of eliminating danger are slight compared to the risk to children.
*Cts now reject the trad req that the child must be “lured” onto the premises by the attractive nuisance.

Question 23

SOC for Possessors of Land–CA Approach

Answer 23

Reasonable SOC under ALL circumstances for ALL entrants.

Trespassing is something jury can consider in deciding if LP exercised RC.

Flagrant trespasser–only duty is to not act in intentional, willful, or wanton manner.

Question 24

Common Carrier/Hotel SOC

Answer 24

Modern approach:

Common carriers–held to highest SOC; i.e. held liable for “slight neg.”

Hotels–held to lower ord SOC (i.e. RPP) and liable only for “ord neg.”

Both still have affirmative duty to act based upon special rel they have w/ their customers.

Question 25

L&T SOC

Answer 25

L MUST:
–maintain safe common areas;
–warn of hidden dangers; and
–repair hazardous conditons.

Off premise victim:
–LP not liable for injuries resulting from natural conditions.
–Artificial conditions–LP must prevent unreasonable risk of harm to persons not on premises.

Question 26

Negligence–Breach
Trad Approach and Cost-Benefit Analysis

Answer 26

Trad Approach–reasonable person standard; what would RPP do under circumstances

Cost-Benefit Analysis (i.e. Hand Formula)–Burden < Prob of Harm x Severity of Loss (B<PL)

Both of these work and get you to the same result.

Question 27

Breach of Duty–Shortcuts and Specific Rules

Answer 27

Custom–evidence of custom is admissible but not dispositive.

Professionals–custom admissible AND dispositive; breach entirely depends on compliance/deviation from custom.

Physician custom–modern trend is national standard; patients must also give informed consent to risks of medical procedures UNLESS:
–risks commonly known; patient unconscious; P waives/refuses info; P incompetent or P would be harmed by disclosure.

Question 28

Breach of Duty–Statutes (Negligence Per Se)

Answer 28

The standard of care can sometimes be determined by statute.
–Most JX–the violation of such a statute establishes negligence as a matter of law (a conclusive presumption as to duty and breach).
–Min JX–hold that violation of the statute is merely evidence of negligence (a rebuttable presumption as to duty and breach).

Elements:
(1) law imposes duty for protection of others;
(2) D violated statute
(3) P in class of ppl intended to be protected by statute;
(4) Accident must be type of harm statute was intended to protect against (this will be most debatable element on exam).
(5) Harm caused by violation of statute.

Defense–excuse if compliance impossible or even more dangerous than compliance.

Question 29

Res Ipsa Loquitor

Answer 29

Where circumstantial evidence of neg is suff evidence of neg.

Elements–trad approach:

(1) accident was of a kind that does not ord occur w/o neg;
(2) caused by agent/instrumentality w/in exclusive control of D; and
(3) it was not due to any action on part of P.

Modern Trend–more generous to P b/c does not req proving that D had exclusive control:
(1)Accident is a type of accident that ord happens as a result of neg by class of actors and
(2) D is a member of that class.

Q for the jury to decide if neg can be inferred–if can go either way (i.e. neg could be inferred or not inferred) then SJ NOT approp.

Question 30

Negligence–Causation: Cause-in-Fact

Answer 30

“But-for” test–P must show injury would not have occurred “but for” D’s neg; most common way to determine actual causation.

Multiple tortfeasors/possibile suff causes
–Sub factor test–was D’s tortious conduct a “sub factor” in causing P’s harm?

Joint/Several Liability–Ds can be held J&S liable only if their CONCURRENT neg acts brought about the harm to P, including:

–Alternative Causation (e.g. 2 shooters neg fire guns and don’t know whose bullet hits P)–Cts shift burden of proof to Ds and impose J&S liability on them unless 1 D can show he did not cause harm.

Concert of Action–2 or more TFs acting collectively and cause P harm–all Ds J&S liable.

Question 31

Negligence–Causation: Prox Cause

Answer 31

i.e. Scope of Liability

Issue is whether the injury that occurred was w/in the scope of D’s breach–i.e. the harm that occurred needs to be w/in scope of the risk such that the consequences of D’s actions were reasonably foreseeable.

Also foreseeability of harm–i.e. is this what made the conduct neg to begin with? IF not then particular consequence of neg too remote.

Intervening causes–do NOT break chain of causation–e.g. train drops off P past his stop in high crime area and gets mugged; foreseeable and w/in scope of risk.

Superseding causes–BREAKS chain of causation; e.g. D speeds down street and P jumps out of the way and gets mugged–NOT foreseeable.

Question 32

Negligence–Damages

Answer 32

In a negligence action, a plaintiff can recover compensatory damages based on:
(1) the plaintiff’s initial physical harm;
(2) any subsequent harm (physical, econ, emotional) traceable to that initial harm; and
(3) steps taken to mitigate the initial harm.
*But the plaintiff’s actions prior to the defendant’s negligent act are NOT a factor in determining damages.

D liable for the FULL extent of damages, regardless of foreseeability, once P meets all the elements for neg.

E.g. if jury finds that P’s fall down a flight of stairs was a natural consequence of original injury, then P may recover damages for both injuries regardless of whether the fall was foreseeable.

So D liable for subsequent injuries even if not foreseeable, as long as jury can find the original injury is a sub factor in causing subsequent injuries.

Question 33

Duty to Mitigate Damages

Answer 33

The plaintiff must take reasonable steps to mitigate damages. Although sometimes phrased as a “duty to mitigate,” this “duty” is not an obligation that the plaintiff owes to the defendant but instead is a limitation on the plaintiff ’s recovery due to the failure to avoid harm that could have been reasonably avoided after the tort was committed.

Question 34

Collateral-Source Rule

Answer 34

Benefits or payments to P from outside sources (e.g. insurance) are not credited against the liability of any tortfeasor.

*Most sts have passed statutes that eliminate or sub modify this rule.

Question 35

NIED–Zone of Danger

Answer 35

P can recover for NIED if:

–The P was w/in the “zone of danger” of the threatened physical impact; and
–The threat of physical impact caused ED.

Question 36

NIED–Bystander Recovery

Answer 36

A bystander can recover for NIED if the bystander:

–is closely related to the P injured by D;
–was present at the scene of the injury; and
–personally observed the injury

Question 37

NIED–Special Relationship

Answer 37

–Neg mishandling of a corpse
–Neg medical info (e.g. neg misdiagnosis)

Most JX req some physical manifestation of distress to claim NIED–but NOT in these cases of special rel; it is enough that D’s neg creates great likelihood of ED.

Question 38

Pure Economic Loss

Answer 38

P who suffers ONLY econ loss (e.g. someone neg damages a road and business owner loses business) w/o any related personal injury or prop damage cannot recover in neg.

Question 39

Loss of Consortium

Answer 39

Typically a spouse can claim loss of consortium/companionship arising from injury to spouse.

Question 40

Wrongful Death and Survival Actions

Answer 40

Survival Action–brought on behalf of decedent’s estate for claims decedent would have had (e.g. PI or prop damage).
Wrongful Death–brought by decedent’s spouse/rep to recover losses suffered by the spouse/rep.

Question 41

Wrongful Birth/Life

Answer 41

Wrongful Life
o Claim by child for defendant’s negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect
o A few states permit a “wrongful life” action, but they limit the child’s recovery to special damages attributable to the disability.

Wrongful Birth
o Claim by parents for defendant’s negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect
o Many states do permit recovery for the medical expenses of labor as well as for pain and suffering.
o In the case of a child with a disability, may be able to recover damages for the additional medical expenses.
*In come cts–if the reason for preventing the pregnancy (via sterilization) was not due to the risk of genetic defects, the surgeon may not be regarded as the prox cause of any damages resulting from baby’s genetic problems–i.e. req that the surgeon at least be on notice that genetic defects are possible.

Question 42

Respondeat Superior

Answer 42

Employer is held vicariously liable for the neg of an employee if it occurred w/in the scope of employment

Question 43

Scope of Employment–Frolic and Detour

Answer 43

Detour–minor deviation from scope of employment; employer still liable.

Frolic–major deviation from scope of employment; employer not liable.

Question 44

Indp Contractors’ Torts

Answer 44

Gen employers NOT liable for torts committed by indp contractors.

Indp contractor vs employee–if the employer retains a right of control over the way employee does work, then ct will treat that person as an employee.

Vicarious liability for indp contractor’s torts if:

–Non-delegable duty–i.e. inherently dangerous activity or duty to public / specific Ps.
E.g. owner of restaurant has non-delegable duty to ensure food cooked safely;
E.g. owner of store has non-delegable duty to maintain safety of premises.

–Apparent agency doctrine–IC treated as employee if injured P accepted IC’s services based on reasonable belief that IC was employee, based on manifestations from the putative employer, and IC’s neg is a factual cause of harm to P and such harm w/in scope of liability.

Question 45

Joint and Several Liability

Answer 45

Two or more Ds each liable for a single and indivisible harm to P; each D is subj to liability to P for entire harm–DEFAULT system of liability on MBE.

i.e. two or more TFs; TFs acting in concert; alternative liability; Res ipsa loquitur against multiple Ds; vicarious liability b/t employer and employee.

Question 46

Negligence Defenses–Contributory Neg

Answer 46

*Old CL rule and only a few states still follow this.

If P was neg in some way, that neg completely precluded P’s recovery.

Last Clear Chance Doctrine–allows a neg P to recover upon showing that D had the last clear chance to avoid injuring P but failed to do so.

Question 47

Negligence Defenses–Comparative Fault

Answer 47

Unliked contrib neg does not completely bar recovery–just limits P’s ability to recover.

Pure Comparative Neg (CA approach)–P’s recovery is reduced by P’s % of fault

Modified Comparative Neg–If P is more at fault than D, then P cannot recover.

If more than one D, then P’s neg is compared w/ the TOTAL neg of all Ds combined

Most comparative neg JX no longer use last clear chance doctrine; comparative fault not a defense to intentional torts; if D’s conduct rose to willful, wanton, or reckless the P’s recovery may still be reduced by portion of P’s own neg.

Comparative fault is a JURY Q–so motions for SJ must be denied.

If one D is neg and another D is an intentional tortfeasor (e.g. D neg puts loaded shotgun in his truck and other D uses it to intentionally shoot someone)–then comparative faults does NOT apply; intentional TF is liable for ALL consequences stemming from his actions.

Question 48

Negligence Defenses–Assumption of Risk

Answer 48

Applies when a P knowingly and willingly embraces a risk for some purpose of his own.

Express:

–Typically a writing such as exculpatory clause in K
–Typically enforceable unless: 1) waiver disclaims liability for reckless misconduct; 2) gross disparity of bargaining power b/t the Ps; 3) P seeking to enforce provision offers important public services like medical; 4) typical K defenses such as fraud/duress; or 5) enforcement against PP.

Implied:

–Participants in and spectators of athletic events–cannot recover b/c P knew of the risks and chose to accept risks.

Unreasonably proceeding in face of known/specific risk–Most comparative fault JX–this type of assumption of risk merely reduces recovery; Contrib neg JX–this type of assumption is a total bar to recovery.

Question 49

Strict Liability–Abnormally Dangerous Activity

Answer 49

A D engaged in an abnormally dangerous activity will be held strictly liable for personal injuries and prop damage caused by the activity, regardless of precautions taken to prevent harm.

Abnormally dangerous activity–i.e. abnormally dangerous if 1) activity creates a foreseeable and highly significant risk of serious harm to P even when the actor exercises reasonable care; and 2) activity is not a matter of common usage in the comm–e.g. utilities.

Scope of liability–D liable for the harm that flows from the foreseeable risk that made the activity abnormally dangerous.

Question 50

Strict Liability Defenses for Abnormally Dangerous Activity

Answer 50

Contrib Neg–P’s contrib neg does NOT bar recovery
Comparative Neg–in some JX P’s neg does not bar recovery; in others P’s neg will diminish recovery
Assumption of Risk–P’s assumption is a COMPLETE BAR to recovery.

Question 51

Strict Liability–Wild Animals

Answer 51

The owner of a dangerous animal–i.e. not gen domesticated and likely to cause injury unless restrained–is strictly liable for damage done by the trespass of that animal as long as it was reasonably foreseeable.

Owner of dangerous animal also strictly liable for harm that:
(1) is caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal; or
(2) directly results from the wild animal’s abnormally dangerous characteristics

–If the accident/injury occurs b/c of a factor that is unrelated to the “dangerous propensities” that are typical of the species–NO strict liability.

Question 52

Strict Liability–Domesticated Animals

Answer 52

The owner of a domestic animal is generally not strictly liable (i.e., liable without proof of fault) for any physical harm caused by the animal. However, strict liability will be imposed when:

(1) the owner knew or had reason to know about the domestic animal’s dangerous propensities (i.e., behavior uncommon for its species) and

(2) the plaintiff’s harm arose from those dangerous propensities.

Question 53

Products Liability based on Strict Liability

Answer 53

Prima facie case for products liability claim based on strict liability includes:
1) commercial supplier of product;
2) producing or selling a defective product;
3) actual and prox cause (i.e. consumer’s use was foreseeable); and
4) damages

P must show:

1) Product was defective in manuf, design, or failure to warn;
2) Defect existed when the product left D’s control; and
3) Defect caused plaintiff’s injury when the product was used in a foreseeable way.

Manuf Defect–Product deviated from intended design and does not conform to manuf’s own specifications.

Design Defect:
1) Consumer expectation test–product is less safe than ord consumer would expect;
2) Risk-utility test (more technical products)–risks outweigh benefits; must show there is a reasonable alternative design.

Failure to Warn–there was a foreseeable risk that was not obvious to ord user and steps weren’t taken to warn about that risk.
*Learned-Intermediary Rule–a manufacturer of a prescription drug or medical device will not be held strictly liable for inadequate warnings or instructions if the manufacturer warned the prescribing physician about the risk of harm associated with that product.

Ps–no privity req; can sue up and down chain of production; also bystanders can sue.

Ds–only commercial suppliers/sellers; i.e. D must be in the business of manuf/selling/distributing product–NOT merely a service provider (e.g. dentist/barber).

Question 54

Products Liability based on Strict Liability–Damages and Defenses

Answer 54

P can recover for PI or prop damage (but not for purely econ loss).

Defenses:

–Contrib neg JX–cts will not allow complete bar to recovery for P neg using product in reasonably foreseeable way, even if not intended by D–i.e. if product misuse foreseeable then D still liable for strict product liability (but could still be valid grounds to dismiss neg claim).
–Comparative fault JX–P’s own neg will reduce recovery in both SPL claim and neg claim.
–Assumption of risk–P NOT allowed to recover if SUBJECTIVELY knew about and vol chose risk (i.e. defeats the arg that the defective product was the actual/prox cause of harm).
–Compliance w/ gov standards–compliance admissible as evidence but not conclusive.
–State of the art–In some JX relevant state of the art at time of manuf/warning evidence product not defective; other JX compliance w/ SOA complete bar to recovery.

Question 55

Products Liability claim may also be based on–Breach of Implied Warranty

Answer 55

Warranty claims may gen be brought up and down distribution chain.

Implied W of Merchantability–product is suitable for ord purpose for which it is sold.

Fitness for particular purpose–seller knows particular purpose for which product being sold and buyer relies on seller’s skill/judgement.

Question 56

Products Liability claim may also be based on–Negligent Misrepresentation

Answer 56

Similar to standard neg claim. To prove neg misrep the P must show:

1) D made a misrep in a business/professional capacity (i.e. D in the business of selling this product);
2) D breached a duty owed to P;
3) P justifiably relied on the misrep;
4) The misrep caused harm to P; and
5) damages (if no pecuniary loss then no claim)

Question 57

Invasion of Privacy

Answer 57

P can recover for four types of wrongs:

1) appropriation by D of the P’s picture or name for commercial advantage;

2) intrusion by D upon P’s affairs or seclusion–no publication req to establish liability, unlike other forms of invasion of privacy

3) publication by D of facts placing P in a false light; and

4) public disclosure by D of private facts about P–cts will weigh social value/newsworthiness of disclosure vs invasion of privacy.

Question 58

Defamation–Slander / Libel

Answer 58

Can be spoken (slander) or written (libel) in which P must prove:

Private P / NOT a matter of public concern:
1) defamatory (i.e. false) language that diminishes respect/esteem
*NOT statements of opinion unless factual basis–e.g. “In my opinion P is thief” is actionable b/c implies P stole something vs “P is a lousy artist” NOT actionable b/c ppl can disagree regarding quality of P’s paintings;
2) of or concerning P;
3) negligently/recklessly/intentionally published to a 3P (not strict liability);
4) which caused damage to P’s reputation.
*Only causes damage to P’s reputation if a 3P’s reasonable interpretation of that statement would tend to do so–i.e. does NOT req 3P to actually believe defamatory statement; merely req’s 3P to understand defamatory nature of statement.

If defamatory statement is about a matter of PUBLIC CONCERN P must also prove Fault–i.e. negligence as to falsity of statement for private figure and actual malice for public figure–i.e. knowledge statement was false or reckless disregard as to whether it was false.

Slander typically reqs proof of special damages–most often econ damages– unless the statement falls into one of four categories of exceptions for slander per se:

1) crim activity;
2) misconduct or incompetence in P’s trade/occupation;
3) sexual misconduct;
4) P having a “loathsome” disease

Question 59

Intentional Interference w/ K

Answer 59

Intentional interference with a contract requires proof that:
(1) a valid contract existed between the plaintiff and a third party;
(2) the defendant knew of that contractual relationship;
(3) the defendant intentionally and improperly interfered with the contract’s performance; and
(4) that interference caused the plaintiff pecuniary loss.