Torts

Question 1

Intentional Torts: Prima Facie Case

Answer 1

1. Act by D (some volitional movement)
2. Intent (may be specific or general)
3. Causation (D’s conduct must be a substantial factor in bringing about resulting harm)

Question 2

Transferred intent doctrine

Answer 2

Arises when D acts with the intent to commit a given tort but:
a) commits orginal tort against a different person than intended,
b) commits a different tort than intended against original person, or
c) commits different tort against different person than intended.

Applies only to: assault, battery, false imprisonment, trespass (to land or chattels)

Question 3

Assault

Answer 3

1) Act by D that creates a reasonable apprehension in P (“reasonable apprehension” = P has awareness of D’s act and has a reasonable expectation that it will result in immediate harmful or offensive contact to P’s person)
2) Of immediate harmful or offensive contact to P’s person (P must apprehend an immediate or imminent battery, words or threats are usually insufficient, unless coupled with some overt act)
3) Intent
4) Causation

Question 4

Battery

Answer 4

1) Harmful or offensive contact by D
2) To P’s person
3) Intent
4) Causation (indirect contact is sufficient)

Question 5

False Imprisonment

Answer 5

1) Act (or omission) resulting in P’s restraint or confinement (does not have to be physical [threats of force, invalid use of legal authority], duration is not important, brief confinement will suffice)
2) P is confined to a bounded area (P must be aware of or harmed by the confinement, P’s freedom of movement must be limited, P must not be aware of any reasonable means of escape)
3) Intent
4) Causation

Question 6

False Imprisonment: Shopkeeper’s Privilege

Answer 6

A store may detain a suspected thief if:
1) Store has reasonable cause to believe that theft occured;
2) Store detains suspect in a reasonable manner (only non-deadly force permitted) for purposes of investigation; and
3) Detention is reasonbale in length and scope

Shopkeeper may be held liable for any harm caused by acts exceeding the privilege.

Question 7

Intentional Infliction of Emotional Distress (IIED)

Answer 7

1) Extreme and outrageous conduct by D
» Conduct that exceeds the bounds of decency in society (mere insults alone are insufficient)
» Conduct must be outrageous to a reasonable person unless:
a) D targets P’s known sensitivity or weakness,
b) D’s conduct is continuous or repetitive,
c) D targets a P who is a member of a “fragile” class (e.g., elderly, children, pregnany women), or
d) D is a common carrier or innkeeper

2) Severe emotional distress in P
» Physical symptoms are not necessary

3) Intent or recklessness
» Recklessness = D disregards the liekly consequences of his acts

4) Causation

Question 8

IIED: Bystander Claims for Emotional Distress

Answer 8

(IIED Elements: 1) Extreme and outragous conduct by D, 2) Severe emotional distress in P, 3) Intent or recklessness, and 4) Causation)

Additional requirements:
5) P was present at the time,
6) P was a close relative of the third person, or distress resulted in bodily harm, and
7) D knew these facts

Question 9

Trespass to Land

Answer 9

1) Physical entry of P’s real property by D
»D enters P’s property or propels an object onto it
»P need only have lawful possession of the property - ownership not required
»Must be physical invasion (invasions by light, sound, smell are not trespass)
»P’s real property includes surface space, immediate airspace, and subterranean space to a reasonable distance

2) Intent
»Intent to enter the land will suffice, even if by reasonable mistake (D does not need to know the land belongs to another)

3) Causation

Actual damages not required

Question 10

Trespass to Chattel & Conversion

Answer 10

Trespass to Chattel:
1) D intentionally interferes with P’s right of possession in tangible personal property
»Interference usually occurs through dispossession
»Minor interference or damage

2) Intent

3) Causation

4) Damages - P must have some loss of use
» P can recover cost of repair or rental value of chattel

Conversion:
1) Significant interference or damage that justifies D paying the chattel’s full value
»A longer and/or more damaging use of P’s chattel gives rise to conversion

4) P can recover full market value at time of conversion or repossess the chattel

Question 11

Defenses to Intentional Torts

Answer 11

1) Consent
2) Self-Defense, Defense of Others, Defense of Property
3) Necessity
4) Recapture of Chattels

Question 12

Defenses to Intentional Torts: Consent

Answer 12

A defense to all intentional torts - if P consents to D’s otherwise tortious conduct, D is not liable for that act
»Capacity is required to consent
»Consent may be express or implied
»Scope of consent - D can be held liable for conduct that exceeds the scopt of P’s valid consent

Question 13

Defenses to Intentional Torts: Self-Defense, Defense of Others, & Defense of Property

Answer 13

Requirements for all defenses:
1) Reasonable belief - D must reasonably believe a tort is being or about to be committed
2) Proper timing - tort must be in progress or imminent
3) Reasonable force - must be proportionate to threat of harm (Deadly force - allowed if D reasonably believes a life is in danger - never permitted to protect property alone)

Self-Defense:
»No duty to retreat (minority - duty to retreat before using deadly force if retreat can be done safely)
»Only available to intial aggressor if initial threat has terminated or D responds to non-deadly force with deadly force

Defense of others:
»D must have reasonable belief that the person he is aiding would have the right of self-defense
»D may use as much force as he could have used if the injury was threatened to him

Defense of Property:
»Reasonable force may be used, but force that is deadly or causes serious bodily harm is now allowed for defense of property alone
»Unavailable if initial actor had a privilege to enter land
»Reasonable mistake only allowed as to whether an intrusion occurred, not whehter privilege existed

Question 14

Defenses to Intentional Torts: Necessity

Answer 14

Requirements:
1) D’s interference with P’s property must be reasonbly necessary to avoid an immediate threatened injury
2) Threatened injury must be more serious than the interference undertaken to avert it

Public necessity - absolute defense
»D’s invasion of P’s property msut be reasonably necessary to protect the community or a large group of people
»P cannot recover any damages

Private necessity - limited defense
»D invades P’s property to protect his own property or self or small group
»P can usually recover damages for actual harm to D’s property, unless D trespassed for P’s benefit

Property owner liability - if an owner repels or expels a trespasser who interfered with or invaded owner’s property out of a valid necessity (e.g., P seeks shelter from terrible storm), owner will be liable for any damage cuased

Question 15

Defenses to Intentional Torts: Recapture of Chattels

Answer 15

D has a legal privilege to use peaceful means to recover possession of chattel taken unlawfully, and to use reasonable, non-deadly force if in fresh pursuit of the chattel-taker
»Also a defense to assault and battery and false imprisonment

Limitations & Requirements:
»D-owner must make a timely demand for return of chattel (Exception - not required if making demand would be futile or dangerous)
»D-owner may recapture from original wrongdoer or a third person who knows the chattel was wrongfully obtained (recapture is not available if chattel is in the hands of an innocent party)

Use of Force:
»Reasonable foce may be used to recapture chattel only if in fresh pursuit of one who has wronguflly obtained possession
»No deadly force or serious bodily harm permitted

Question 16

Defamation

Answer 16

Common law elements:
1) A false (constitutional rules impact whether P has burden to prove falsity or D has burden to prove truth)
2) Defamatory statement (adversely affects P’s reputation - must be based on specific facts)
3) Concerning P (must be reasonably understood that the statement concerns a living P or a very small group of P’s)
4) Publication (statement must be intentionally or negligently made to a third person)
5) Harmful to P’s reputation

Liability for republication - the republisher of a defamatory statement is libale to the same extent as the original publisher

Damages - P’s burden of proving damages relies on the type of plaintiff, if the statement is a maetter of public concern, or if it is slander per se
»Truth is a complete defense
»No requirement at common law for P to prove fault

Question 17

Defamation: Constitutional Considerations

Answer 17

1st Amendment considerations arise when defamation invovles a public figure, public official, and/or a matter of public concern.

Public figures/Public officials:
»public figure = one who has pervasive fame or notoriety, or who voluntarily assumes a central role in a public matter
»public official = public office holder

Additional Elements:
1) Fault - P must prove D was at Fault
»Standards differ for public vs. private figures:
»»Public official or figure - actual malice standard (knowledge of the statement’s falsity or reckless disregard to whether it was false)
»»Private figure - negligence standard

2) Falsity
»Public officials and public figures must prove falsity
»Private figures must prove falsity only if speech pertains to matter of public concern
»If private figure/private speech, states may require D to prove truth

Question 18

Defamation: Damages Considerations

Answer 18

Damages depend on the type of plaintiff, content, and whether the defamatory statement constitutes libel, slander, or slander per se.

Libel - a written defamatory statement
»Public figures and public officials who prove “actual malice” may recover “presumed damages” for reputational harm without any proof
»Private figures who prove negligence may recover “presumed damages” only if the speech related to a matter of private concern
»If public concern, private figures may recover only proved actual damages
NOTE: TV and radio broadcasts are considered libel

Slander - a spoken defamatory statement
»P must prove “special damages” unless the statement constitutes slander per se
»special damages = a specific economic loss
»Slander per se - a defamatory statement that either:
»»a) Adversely reflects on P’s business or professional reputation,
»»b) CLaims that P has a loathsome disease,
»»c) CLaims that P committed a crime or moral turpitude, or
»»d) Imputes a woman’s chastity

Question 19

Defenses to Defamation

Answer 19

Consent, truth, and privilege may be valid defenses to defamation.

Consent - P consents to one or more required elements (e.g., P may consent to an organization investigating her and sharnig its findings with potential employers)

Truth - allegedly defamatory statement is true
»Truth is a complete defense to a defamation claim

Privilege - certain types of statements are privileged
»Absolute privilege - protects statements by govt. officials in their official capacity
»Qualified privilege - D’s liability for defamatory statements is limited where:
»»D invites the statemetn and/or recipient has an interest (e.g., employment reference, credit report, letter of recommendation)
»»Statement is in the public interest (e.g., book reviews, statement to a parole board)

Question 20

Types of Invasions of Privacy

Answer 20

Appropriation, False Light, Intrusion Upon Seclusion, Disclosure

Question 21

Appropriation, False Light, & Defenses

Answer 21

Appropriation - inauthorized use of P’s name or likeness for commercial purposes
»Newsworthiness exception - no liability for use of P’s name or likeness for the purpose of reporting news

False Light - widespread publication of a falsehood or material misrepresentation about P that would be highly offensive to a reasonable person
» Includes mischaracterization of P’s views or conduct
»Matters of public concern - P must prove actual malice or reckless disregard for the truth of the matter publicized
»No newsworthiness exception

Defenses:
»Consent - valid defense, although D may be liable if his actions exceed the consent given
»Privilege - may be availabel as a defnse to false light if D has an absolute or qualified privilege to publication
»Truth is not a valid defnse to invasion of privacy claims

Question 22

Intrusion Upon Seclusion, Disclosure, & Defenses

Answer 22

Intrusion upon seclusion - intrusion upon P’s private affiars in a manner that would be highly offensive to a reasonable person
»Requirements:
»»1) P must have a reasonable expectation of privacy (No reasonable expectation of privacy in public)
»»2) Intrusion must be highly offensive to a reasonable person (e.g., peeping, eavesdropping, or using hidden cameras in P’s domain)
»No newsworthiness exception

Disclosure - public disclosure of P’s private information
»Requirements:
»»1) Highly offensive to a reasonable person (Public activities are not actionable - e.g., no liability for announcing acts that occur in public)
»»2) Publicized - made available to a public audience
»Newsworthiness exception - no liability if private facts are newsworthy

Defenses - consent is a calid defense; privilege is a valid defnse to disclosure

Question 23

MIsrepresentation

Answer 23

Intentional misrepresentation (fraud, deceit) elements:
1) D misrepresents a past or present material fact
2) D knows or believes the misrepresentation is false
3) D intends to induce P to act or refrain from acting in relance on the misrepresentation
4) Actual reliance by P (causation)
5) Justifiable reliance by P
6) Damages (P must suffer monetary loss)

Negligent misrepresentation elements:
1) D misrepresents a past or present material fact in a business or professional setting
2) Breach of duty of care owed to a particular P (i.e., D knew P could rely on the misrepresentation)
3) Actual and justifiable reliance by P
4) Damages - P must suffer monetary loss

Question 24

Negligence: Elements & Standards

Answer 24

Elements:
1) Duty of care
»D owes a duty to P to conform to a specific standard of care
»Reasonably prudent person - D’s duty is to behave like a reasonbly prudent person under the circumstances presented (in certain situations, an alternative standard of care applies)
2) Breach of duty
3) Causation
»Actual cause and proximate cause
4) Damages

Standards:
Analyzed under an objective standard by comparing D’s actions to a reasonable person under the same or similar circumstances

Question 25

Duty of Care

Answer 25

D owes a duty of care to all foreseeable plaintiffs.

Default standard of care - reasonably prudent person (RPP)
»D’s duty is to behave like an ordinary, reasonably prudent person under the same or similar circumstances with regard to foreseeable plaintiffs
»»RPP is considered to be someone with D’s physical characteristics (including disabilities), but with the knowledge and mental capacity of an ordinary person

Foreseeable plaintiffs - those within the zone of danger
»zone of danger = the area around D’s activities in which a P could foreseeably be injured
»Rescuer’s exception - if D puts himself or another in danger and a third person attempt to rescue, D can be held liable for the rescuer’s injuries, even if unforeseeable (does not apply to emergency personnel if their injury results from a risk inherent to the job)
»Prenatal injury - a duty of care is owed to a viable fetus

Question 26

Specialized Standards of Care: Children

Answer 26

held to the standard of care of a reasonable child of similar age, education, intelligence, and experience
»generally, young children (under 7) lack capacity to be held negligent
»Adult activities exception - children engaged in adult activities must conform to an adult standard of care in that activity

Question 27

Specialized Standards of Care: Common carriers & innkeepers

Answer 27

held to an “utmost care” standard
»liable for even lsight negligence to passengers or guests

Question 28

Specialized Standards of Care: Custom or usage in an industry

Answer 28

can be used to establish a standard of care, but failure to adhere does not automatically give rise to a breach of duty, nor does complieance with an industry custom automatically establish a lack of negligence

Question 29

Specialized Standards of Care: Professionals

Answer 29

must act with the knowledge and skill of a member of their profession in good standing in similar communities
»Medical professionals - held to a national standard of care

Question 30

Specialized Standards of Care: Statutory standard of care & negligence per se

Answer 30

Requirements - statutory standard of care will apply if statute satisfies three criteria:
1) P must prove that harm suffered is the type the statute was meant to prevent,
2) P is in class of victims statute was meant to protect, and
3) Statute applies a standard of conduct

Statutory standard of care does not apply if:
a) compliance is more dangerous than non-compliance, or
b) compliance is impossible under the circumstances

Negligence per se - violation of statute means P must only prove causation, not breach of duty
»majority - violation of the statute establishes a conclusive presumption of duty and breach of duty
»compliance does not automatically clear D of liability

Question 31

Specialized Standards of Care: Owners/Occupiers of land

Answer 31

Owners/occupiers of land have a differing standard of care based upon the classification of P

Unknown or undiscovered trespassers - no duty owed

Anticipated trespassers - where owner has reason to believe of trespassers on her land
»activities - owner has duty of reasonable care in carrying out activities on her property
»dangerous conditions - owner has duty to make safe or warn of any known, concealed, man-made hazard (RARE - look for spring guns, traps, etc)

Attractive nuisance doctrine for child trespassers - owner must take reasonable care to eliminate dangers on her proprety or protect children from those dangers if:
»1) She is aware or should be aware of a dangerous condition on her property;
»2) She knows or should know children are in the vicitinty;
»3) The condition is likely to cause injury given a child’s inability to appreciate the risk; and
»4) The magnitude of the risk outweighs its utility or the expense of remedying it

Licensee - one who enters land with owner’s permission for his own purpose or business (i.e., not for landowner’s benefit) (e.g., relatives, friends, social guests)
»acitivities - reasonable care
»known dangerous conditions - duty to make reasonably safe
»No duty to inspect
»scope: limited to scope of license - owner’s duty extends only to those areas where one is a licensee

Invitee - one who enters land held open for the public or who enters with owner’s permission to confer a commercial benefit
»acitivities - reasonable care
»known dangerous contitions - duty to make reasonably safe
»duty to inspect - owners have duty to conduct a reasonable inspection for non-obvious dangers and make them safe
»non-delegable - businesses that hold property open to the public have a non-delegabel duty to keep premises safe for customers
»scope of duty - limited by the scope of the invitation (owner’s duty extends only to those areas where one is an invitee)

Question 32

Breach of Duty

Answer 32

D breaches his duty when his conduct falls short of the standard of reasonable care owed under the circumstances. To demonstrate a breach, P can argue: (a) D breached the applicable standard of care, or (b) res ipsa loquitur.

(a) D breached the applicable standard of care - includes: RPP standard, Negligence per se, Specialized standard of care, or custom usage in an industry (not automatic breach, but may be relevant)

(b) Res ipsa loquitur - the very occurrence of the accident causing P’s injuries suggests negligent conduct
»Arises if facts cannot establish breach of duty b/c circumstances surrounding the event are unknown to P
»Requirements - P must show:
»»1) inference of negligence - the harm would not normally occur absent negligence
»»2) Attributable to D - this type of harm normally results from negligence by one in D’s position (Often satisfied by showing that the injury-causing instrument was in D’s exclusive control)
»»3) Injury was not attributable to P

Question 33

Actual Cause

Answer 33

Establishes a causal connection between the alleged breach of duty and the resulting injury.

“But-for” test - but for D’s alleged breach of duty, P’s injury would not have occurred

Substantial factor test - for multiple causes of P’s injury
»D’s breach is an actual cause if it was a substantial factor in bringing about P’s injury
» Application - used if multiple causes bring about P’s injury and one of them alone would have caused the injury

Burden-shifting test - for several possible causes of P’s injury
»Application - used if multiple Ds act (often simultaneously), only one causes P’s injury, but it’s unclear which D caused the injury
»Burden of proving actual cause shifts to Ds
»»If no D can prove another D was responsible, all Ds are jointly and severally liable

Question 34

Proximate Cause

Answer 34

Establishes that it is fair under the law to hold D responsible for P’s injuries.

Foreseeability - measuring stick for proximate cause
»D is liable for the foreseeable outcome of his conduct
»Note - an outcome does not have to be likely to be foreseeable; if it’s reasonably possible, it’s probably foreseeable

Direct causes - if P’s injury is the direct result of D’s negligent conduct, D is liable unless the outcome is unusually bizarre of unpredictable

Indirect causes - intervening forces that occur after D’s conduct to cause P’s injuries will not cut off D’s liability if they are foreseeable
»An intervening force is usually foreseeable if either:
»»a) it is a normal response or reaction to D’s negligent act, or
»»b) D’s negligence increased the risk that an intervening force would cause harm to P
»Injuries to rescuers are usually considered foreseeable

“Eggshell Plaintiff Rule” - D takes P as he finds him and is liable for the full extent of P’s injuries, regardless of whether they are foreseeable

Question 35

Damages

Answer 35

P must prove damages, which are not presumed in negligence cases; nominal damages are not available.

Types of damages:
»Personal injury - D must compensate P for all damages
»»Includes past, present, and prospective damages
»»Economic and non-economic damages are recoverable
»Property damage - P can recover reasonable cost of repair
»»If property is irreparable, damages = full market value at the time the accident occurred
»Punitive damages - only recoverable if D’s conduct is wanton and willful, reckless, or malicious
»»usually not available in negligence cases; more common with intentional torts

Non-recoverable damages - P can never recover for interest from the date of damage in personal injury cases and attorneys’ fees.

Duty to mitigate - P must take reasonable steps to mitigate damages

Question 36

Comparative & Contributory Negligence

Answer 36

Comparative negligence - D can establish that P’s injuries are at least partially the result of P’s own negligence
»Fact-finder apportions fault between P and D by percentage and reduces P’s recoverable damages accordingly
»Partial/modified comparative negligence - P can only recover damages if he was less than 50% at fault
»Pure comparative negligence - P can recover damages even if he was more than 50% at fault

Contributory negligence - P is barred from recovery if D establishes that P’s negligence contributed to her injuries
»Last clear chance defense - P can rebut D’s contributory negligence claim by provind D had the last clear chance to avoid the injury-causing accident

Question 37

Assumption of Risk

Answer 37

D can deny P’s recovery by establishing that P assumed the risk of dmaged caused by D’s act

Requirements - D must show:
1) P knew of the risk (subjective standard; but knowledge can be inferred from facts); and
2) P voluntarily proceeded in the fact of that risk

Question 38

Negligent Infliction of Emotional Distress

Answer 38

P may recover for emotional distress resulting from D’s negligence.

Elements:
1) D’s negligence results in a close risk of bodily harm to P (P must be in “zone of danger” to recover)
2) D’s negligence results in P’s severe emotional distress
3) P exhibits some physical manifestation attributable to her emotional distress

Bystander claims - P-bystanders outside the zone of danger may recover for emotional distress resulting from D’s negligence if:
1) P and the injured person are closely related;
2) P was present at the scene of the injury; and
3) P personally observed or perceived the event

Special situations - if above elements are not met, P may still recover where D’s negligence creates a great likelihood of emotional distress. (e.g., erroneous report of relative’s death, mishandling of corpse)

Question 39

Strict Liability: Prima Facie Case

Answer 39

Under strict liability, D can be liable without fault (Allows P to establish D’s liability for P’s injuries without proving D acted negligently.

Strict liability is limited to cases involving:
1) Ultrahazerdous and/or abnormally dangerous conditions
2) animal conduct
3) proudcts liability

Prima facie case:
1) Nature of D’s activity imposes absolute duty to make safe
2) Causation - actual and proximate cause
»Dangerous aspect of D’s activity caused P’s injury
»D generally liable only to foreseeable Ps
3) Damages to P’s person or property

Note - no amount of due care will relieve D of liability under strict liability

Defenses - assumption of risk, comparative negligence

Question 40

Strict liability: Abnormally Dangerous Conditions

Answer 40

Requirements - abnormally dangerous activity/condition exists if:
1) Severe risk - condition or activity imposes a severe risk of harm to persons or property
2) Cannot be made safe - it cannot be made reasonably safe (cannot be perfomred without a serious risk of harm even when all actors use reasonable care)
3) Uncommon - condition or acitivity is uncommon in the community

Question 41

Strict liability: animial conduct

Answer 41

Property damage from trespassing animals - animal owners are strictly liable for reasonably foreseeable damage resulting from their animal’s trespass on another’s property
»does not apply to household pets

Personal injuries
»Wild animals - owners are strictly liable for unprovoked injuries caused by their wild animals, even if kept as pets
»Domestic animals - no strict liability unless owners know of their animal’s unusually dangerous propensities
»Trespassers cannot recover - trespassers are generally not entitled to recovery under strict liability

Question 42

Strict Liability: Products Liability

Answer 42

Elements:
1) D is a commercial supplier - supplies have a strict duty to supply safe goods
»Commercial supplier = one who routinely deals in the product sold, including any merchant in the stream of commerce
»»casual sellers, service providers are not suppliers
2) Product is defective - defect must made product unreasonably dangerous
3) Defective product was actual and proximate cuase of P’s injury - product must not be substantially altered between leaving commercial supplies and reaching consumer
4) P used the product in a foreseeable manner - P’s misuse of the product can be foreseeable

Who can sue - foreseeable useers or bystanders

Damages - P can recover for physical injury or property damage, but not solely for economic loss

Question 43

Strict Liability: Products Liability: Types of Products Defects

Answer 43

Manufacturing Defect - product departs from its intended design, causing it to be more dangerous than all fo the manufacturer’s other products of the same kind
»Requirements: P must show that the product failed to perform as safely as an ordinary consumer would expect

Design defect - product creates an unreasonble risk of danger due to its faulty design
»Requirements - P must show a technologically and economically feasible alternative design or modification that would be safer as to the risk at issue

Inadequate warning - manufacturer fails to adequately warn of a non-obvious risk associated with a product’s use
»Includes duty to warn of foreseeabel dangers from misuse
»Requirements - P must show that the product failed to have clear and complete warnings of any dangers that would not have been ordinarily apparent to consumers
»Unavoidably unsafe products - if a product cannot be made safe for its ordinary use (e.g., chainsaw, firearms), manufacturer must give: (1) proper instructions for use; and (2) adequate warnings of known dangers
»D is not liable for risks that were unforeseeable at the time the product was marketed

Question 44

Products Liability: Negligence Theory

Answer 44

P may establish liability for a product defect under a negligence theory
»Note: a product defect is almost always easier to establish under a strict liability theory

Elements:
1) Duty of care - each commercial supplies in the stream of commerce owes a duty to all foreseeable product users and bystanders
2) Breach of duty - D’s negligence leads to the supplying of a defective product
»Retailers and wholesalers satisfy due care by a cursory inspection of the product (this makes it difficult to hold them negligent for product defects)
3) Causation - P must show actual and proximate cause
»Note - an intermediary’s negligent failure to discover a defect does not absolve the upstream commercial supplier of liability
4) Damages - P must show physical injury or property damage (economic loss alone is not recoverable)

Defenses - all standard negligence defenses are available

Question 45

Implied Warranties

Answer 45

Implied warranties:
»Merchantability - seller warrants that goods are reasonably fit for their intended purpose
»Fitness for a particular purpose - if a seller a) knows or has reason to knwo the particular purpose for which buyer is purchasing, and b) knows that buyer is relying on seller’s skills or judgment in selecting the product, seller implies that goods are fit for that purpose

Who can sue - implies warranty protection extends to a buyer’s family, household, and guests who suffer personal injury

Elements
1) Warranty - existence of an implied warranty
2) Breach - product fails to live up to applicable warranty
3) Causation - actual and proximate
4) Damages - personal, property, and economic are all recoverable

Defenses - assumption of risk, contributory and comparative negligence

Question 46

Products liability: Express warranty & misrepresentation of fact

Answer 46

D may be liabel if a product falls short of an affirmative representation made to buyer.

Express warranty - a statement of material fact or promise regarding goods sold that becomes part of the basis of the bargain.
»Any consumer or bystander can sue for breach (bystanders need not have relied on the express warranty, as long as the original purchaser did)
»Elements (same as for implied warranties)
»»1) Express warranty - relied upon by purchaser
»»2) Breach - product fails to live up to warranty
»»3) Causation - actual and proximate
»»4) Damages - personal, property, and economic loss
»Defenses - assumption of risk, contributory and comparative negligence

Misrepresentation of fact - seller will be liable for any misrepresentation made in the course of a sale if:
1) Seller made a misrepresentation regarding a material fact concerning the quality or use of the goods;
2) Seller intended to induce reliance by buyer; and
3) The misrepresentation induced justifiable reliance
»Note - for strict liability, the buyer need not rely on the misrepresentation for the seller to be liable

Question 47

Nuisance

Answer 47

An intentional invasion of either public or private property rights that substantially and unreasonably interferes with the peaceful and quiet enjoyment of these rights.
»Note - nuisance is a harm caused by tort, not a tort itself

Private nuisance - a substantial, unreasonable interference with another individual’s use or enjoyment of her property
»Substantial interference - must be offensive, annoying, or inconvenient to the average person in the community
»»Interference is not substantial if P is hypersentitive or using property for a specialized, abnormal purpose
»Unreasonable interference - severity of P’s injury must outweigh the utility of D’s conduct
»Note - an interference can be substantial, but not unreasonable

Public nuisance - unreasonable interference with health, safety, or property rights of the community at large
»Recovery is only available to a private party is she suffered
»Govt. usually bring public nuisance suits

Potential remedies - money damages, injunctive relief

Defenses - P cannot recover if he “came to the nuisance” (e.g., he bought property next door to a copper smelting plant)

Question 48

Vicarious Liability

Answer 48

Arises when D commits a tort against P and a third person is held liable due to his relationship with D.

Respondeat superior - employers are held liable for torts committed by employees within the scope of their employment
»Intentional torts - usually outside of the scope, unless: a) the job requires use of force, b) the job entails creating friction, or c) the intentional tort is done to futher the employer’s goals

Independent contractors - employers are generally not liable for torts committed by independent contractors, except for acts that are inherently dangerous or duties that are non-delegable
»Businesses that hold property open to the public have a non-delegable duty to keep premises safe for customers

Partnership - each partner is vicariously liable for any other partner’s torts committed within the scope of the partnerhsip

Parent-child - parents are not liable for their children’s torts
»but parents may be separately negligent if they had reason to know of a child’s propensity to injure or they facilitated the tort

Tavernkeepers - business serving alcohol may be liable for injuries caused by intoxicated patrons if it was negligent in serving the patron, usually depending on workding of state’s “dram-shop” statute