Torts Flashcards
What is comparative contribution in a joint and several liability context?
Under a joint and several liability system, contribution allows a defendant who pays more than his share of damages to recover the excess from the other jointly liable parties; responsibility for the total damages is thus apportioned among those at fault.
Watch out for incorrect answer choice apportioning fault amongst other defendants for liability to the PLAINTIFF.
What are the two theories a plaintiff may use to support an NIED claim?
A duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. This can happen in two ways:
First, one could claim distress flowing from fear for her own safety, but she may prevail only if the defendant’s negligence placed her in a zone of danger. (Near Miss)
Second, she could claim distress as a bystander. For a bystander who is outside the zone of danger from the risk of physical injury but who suffers emotional distress from seeing the defendant negligently injure another, most states allow recovery only if:
(i) the plaintiff and the person injured by the defendant are closely related;
(ii) the plaintiff was present at the scene of the injury; and
(iii) the plaintiff personally observed or perceived the event.
Is Indemnity available in a vicarious liability case?
Yes. Indemnity is available in vicarious liability situations, where one party is held liable for damages caused by another simply because of his relationship to that person.
EG - a plumbing company that has been held vicariously liable under the doctrine of respondeat superior for an employee’s car crash can obtain indemnification from the employee (the plumber) whose conduct actually caused the damage.
Does a plaintiff have to intend to cause serious interference in another’s property to commit a conversion (or trespass to chattels)?
A conversion occurs when the defendant intentionally causes serious interference with the chattel of the plaintiff. The intent involved refers to the physical act that results in the conversion, not to the defendant’s desires regarding the ultimate disposition of the property. Thus, a party is guilty of conversion when she intentionally (i.e., volitionally) takes the property resulting in its loss, even when they did not intend to lose it or even realize they had taken the property of another.
What must be established to show negligence in product design? What circumstances would establish a strong defense for a manufacturer?
To establish negligence in product design, the plaintiff must show that those designing the product knew or should have known of enough facts to put a reasonable manufacturer on notice about the dangers of marketing the product as designed.
Negligent design is not shown, however, if the danger of the product becomes apparent only AFTER the product reaches the public. Hence, the absence of any previous complaints about a problem would be a helpful defense for a manufacturer.
Is physical injury required in IIED or NIED?
No, there is no physical injury requirement for intentional infliction of emotional distress; severe emotional distress is sufficient. Physical injury is an element of negligent infliction of emotional distress in most jurisdictions, but that tort only arises when the defendant negligently creates a foreseeable risk of physical injury to plaintiff, typically through threat of physical impact;
May an employer still be liable for the conduct of an employee even if they are acting outside the scope of employment?
Yes, through negligent entrustment.
Under the doctrine of respondeat superior, an employer is not vicariously liable for the acts of an employee outside the scope of his employment. However, the employer may be liable for its own negligent selection if it has some reason to be on notice that the actions that resulted in harm were likely to occur.
EG - an employer will be liable for the conduct of an employee with a long criminal history who shoots people if a reasonable employer would have discovered the prior convictions.
When is indemnity appropriate?
Indemnity involves shifting the entire loss between or among tortfeasors, and is available where:
(i) there is a contractual promise to indemnify;
(ii) there is a special relationship between the defendants that would allow for vicarious liability; or
(iii) the defendant is a supplier in a strict products liability case who is liable to an injured customer, thus giving the supplier a right of indemnification against previous suppliers in the distribution chain.
In addition, some states allow a joint tortfeasor to recover indemnification from a co-joint tortfeasor where there is a considerable difference in degree of fault.
How does indemnity differ from contribution?
Contribution allows a defendant required to pay more than his share of damages to recover from the other jointly liable parties for the excess.
Whereas indemnity involves shifting the entire loss between or among tortfeasors.
Elements of Interference with Business Relations Claim (4)
To establish a prima facie case for interference with business relations, the following elements must be proved:
(i) existence of a valid contractual relationship between plaintiff and a third party or a valid business expectancy of plaintiff;
(ii) defendant’s knowledge of the relationship or expectancy;
(iii) intentional interference by defendant that induces a breach or termination of the relationship or expectancy; and
(iv) damage to plaintiff.
How do you satisfy the publication requirement in a defamation claim?
The publication requirement is satisfied when there is a communication to a third person who understands it. Further, the communication to the third person must be made either intentionally or negligently; if it was not reasonably foreseeable that the defamatory statement would be overheard by a third party, the fault requirement for the publication element is not satisfied.
What must a bystander plaintiff prove in an NIED claim?
An action based on negligent infliction of emotional distress for injury to another when the plaintiff is a bystander outside the “zone of danger” requires the plaintiff to show that she:
(1) is closely related to the injured person,
(2) was present when the injury occurred, and
(3) personally observed the harm.
What is the Firefighter’s Rule?
The “firefighters’ rule” will bar firefighters and police officers, on public policy or assumption of risk grounds, from recovering for injuries caused by the risks of a rescue.
