Torts

Question 1

Elements of Defamation

Answer 1

Statement specifically identifies the plaintiff

published to a third party

falsity - must be proved in case-in-chief

fault on part of the defendant - public figure/official (actual malice); private person (negligence)

damage to the plaintiff’s reputation

libel - defamation in permanent form (written or printed) no need for special damages, general damages presumed

slander - spoken defamation, must prove special damages unless

• adversely reflect on p’s business or profession
• serious crime
• serious sexual misconduct
• loathsome disease

Question 2

4 types of invasion of privacy torts

Answer 2

1) misappropriation of name or picture

2) false light

3) intrusion of privacy

4) public disclosure of private facts

Question 3

Misappropriation of name or picture

Answer 3

1) used plaintiff’s name or likeness
2) used for commercial advantage

Newsworthiness is a defense

Question 4

False light

Answer 4

1) widespread dissemination
2) plaintiff’s beliefs, thoughts, or actions
3) in a false light
4) that would be highly objectionable to a reasonable person

If a public person or public concern, show actual malice

Question 5

Intrusion of Privacy

Answer 5

1) intrudes into the private affairs of the plaintiff

2) plaintiff has a reasonable expectation of privacy

3) highly objectionable to a reasonable person

3rd person communication is NOT NEEDED

Question 6

Public disclosure of private facts

Answer 6

1) widespread dissemination
2) of truthful private info
3) highly objectionable to a reasonable person

Question 7

Slander

Answer 7

Oral defamatory statement and P always needs to prove special damages UNLESS it is slander per se

Question 8

Slander per se

Answer 8

1) impugning business integrity
2) serious sexual misconduct
3) loathsome disease
4) crime of moral turpitude

Question 9

Libel

Answer 9

Defamation in a permanent form and NO need for special damages unless

1) not slander per see
2) defamatory nature of the statement is not clear on its face

Question 10

Defenses to Defamation

Answer 10

Absolute privilege – complete and applies in judicial proceedings between spouses, executive branch authorities, during legislative proceedings

qualified privilege – conditionally privilege and privilege isn’t abused

former/prospective employers made in good purpose, official proceedings reports, testimony in leg. proceedings, self defense, warn others about a harm or danger

Question 11

Strict liability – wild and domesticated animals

Answer 11

1) domesticated animal will not be strictly liable for harm caused by the animal UNLESS the owner has knowledge of the naimal’svicious propensities

domestic – cats, dogs, farm animals

2) Wild animals are subject to strict liability for harm caused by animal regardless of safety precautions

also strictly liable for trespass and resulting damage (if reasonably foreseeable) and for harm arising from fleeing your wild animal

Question 12

Strict liability for abnormally dangerous activity

Answer 12

A defendant is strictly liable for damages caused to a plaintiff when engaging in an abnormally dangerous activity

1) not common usage in the area
2) creates a foreseeable and highly significant risk of physical harm EVEN when reasonable care is exercised by all actors

Question 13

Strict Products Liability Types

Answer 13

Manufacturing defect

Design Defect

Failure to Warn

Question 14

Products liability factors

Answer 14

Regardless of wrongdoing or negligence, commercial supplier strictly liable if

1) product was defective from design or manufacturing or failure to warn

2) product not altered when reaches plaintiff

3) caused the injury when it was used for an intended or unintended foreseeable use

4) the defendant is a commercial supplier who routinely deals in the good

Question 15

Evidence for a Manufacturing Defect

Answer 15

1) evidence product differs from the intended design

2) it is more dangerous than if made properly

Question 16

Evidence for failure to warn

Answer 16

1) p was not warned of the risks
2) risks were not obvious to an ordinary user

Question 17

Evidence of design defect

Answer 17

there is a way to build that is

1) safer
2) more practical
3) similar cost

Question 18

Do nonpurchasers have standing to sue for products liability?

Answer 18

Yes, no privity is required.

Question 19

Definition of Commercial Supplier

Answer 19

stict products liability claims can only be brought against a commercial seller or distributor of goods

1) engaged in the business of selling goods of the type

not casual sellers or service providers

Applies to all in the distribution chain unless you can show one of them made a significant change to the product

Question 20

Products Liability – Negligence

Answer 20

requires

1) duty to the plaintiff (reasonably prudent supplier)
2) breach of duty
3) causation (actual and proximate)
4) damages

Question 21

Who can be held liable for negligence in products liability?

Answer 21

All suppliers, distributors, retailers and it is owed to all foreseeable users and must act as a reasonably prudent supplier

Question 22

What breaches the reasonably prudent supplier duty?

Answer 22

Causing the defect, a reasonable inspection of the product would have discovered the defect

Question 23

Intentional interference with business relations

Answer 23

Must show

1) a k or business expectancy
2) defendant knows of the k/expectancy
3) defendant intentionally induces another party to breach the k or terminate the relationship
4) breach happens
5) p suffers damages

Question 24

Defenses to intentional interference with business relations

Answer 24

Legitimate competitive activity (no dishonest, wrongful or illegal acts)

giving truthful info to another

having a financial interest in the party that breached the k or terminated

Honestly giving requested advice (think special relationships)

Question 25

Intentional Misrepresentation

Answer 25

1) misrep of material fact
2) d knew the statement was false
3) intent of d to induce the p
4) actual and reasonable reliance by p
5) damages

Question 26

Negligent misrepresentation

Answer 26

1) misrepresentation by d

2) supplied for guidance of others in business

3) d knew or should have know the info was supplied to guide the p

4) defendant negligent in obtaining or sharing the false info

5) actual and reasonable reliance by the p

6) false info proximately caused p’s damages

Silence generally not actionable unless

1) fiduciary, necessary to correct an earlier mistake, active concealment of facts, or person selling real property and knows material facts that affect property

Question 27

Nuisance

Answer 27

Public – 1) unreasonable interference with 2) health, safety, or property rights of 3) community

Must show actual damages and must affect a considerable number of people

Private – 1) substantial and unreasonable interference 2) with person’s use or enjoyment of property

Must be offensive, inconvenient, or annoying to a reasonable person

Question 28

Doctrine of Alternative Liability

Answer 28

Allows jury to find all defendants liable if

1) multiple defendants are negligent
2) it is unclear which one caused the plaintiff’s injuries

Question 29

Joint and several liability

Answer 29

If multiple defendants are the proximate cuase of a single indivisible harm, then the plaintiff may recover the entire amount form any singe defendant (not double recovery)

Question 30

Indemnification and Contribution

Answer 30

Indemnification – the defendant is a passive tortfeasor and seeks to assert his claim against active tortfeasor

D entitled to indemnification is entitled to full amount be paid or may have to pay to the p from the active tortfeasor

Contribution – a joint torfeasor may seek contribution from other joint torfeasors if he pays more than his percentage share of liability

Question 31

Employee v. Independent Contractor

Answer 31

Employee – agent in an agent whom the employer controls (or has the right to control) the manner and means of the agent’s performance of work.

Independent contractor – person who contracts with another to do something for him, but who is not controlled nor subject to the other’s right to control with respect to his performance, The contractor may or may not be an agent.

Question 32

Vicarious liability for acts of independent contractors

Answer 32

A principal is NOT vicariously liable for the torts of an independent contractor.

May be liable for torts committed by an independent contractor if

1) inherently dangerous activity
2) duty owed by principal is nondelegable
3) though the doctrine of estoppel where the principal holds the independent contract out as his agent to a third-party and third party reaosnbly relied on the care and skill of the contract and the third party suffered harm as a result of contractor’s lack of skill or care

Question 33

Duty to a Licensee

Answer 33

A land possessor has a duty to warn or make safe hazardous conditions that are

1) concealed

2) known to the land possessor in advance

Question 34

Duty to a Trespasser

Answer 34

No duty is owed to an undiscovered trespasser

Question 35

Duty to a Known Trespasser

Answer 35

As to discovered or anticipated trespassers, the land possessor must warn of or make safe any conditions that are

1) artificial

2) highly dangerous (involving risk of death or serious bodily harm)

3) concealed

4) known to the land possessor in advance

Question 36

Duty to an Invitee

Answer 36

An inviteeis owed a duty regarding hazardous conditions that are

1) concealed

2) known to the land possessor in advance or could have been discovered by reasonable inspection

Question 37

Trespassing Children – Attractive Nuisance Doctrine

Answer 37

Plaintiff must show

1) dangerous condition that the owner is aware of

2) owner knows or should know that children might trespass the land

3) the condition is likely to cause injury (it is dangerous because of child’s inability to appreciate the risk)

4) expense of remedying the situation is slight compared with the magnitude of the risk

Child does NOT have to have been attracted by the dangerous condition and attraction ISN’T enough for liability

Question 38

3 Types of Negligent Infliction of Emotional Distress

Answer 38

1) Near miss cases

2) Bystander cases

3) Special Relationship Between Plaintiff and Defendant

Question 39

Near Miss Case Requirements

Answer 39

The plaintiff must prove

1) they were in the zone of danger

2) suffer physical symptoms from the distress

Question 40

Bystander Cases

Answer 40

A bystander outside the zone of danger of physical injury who sees the defendant negligently injuring another can recover damages for their own distres as long as

1) plaintiff and victim are closely related

2) the plaintiff was present at the scene and personally observed or perceived the event

Question 41

Special Relationship Case

Answer 41

A defendant may be liable for directly causing the defendant severe