Torts

Question 1

What are the elements of Battery?

Answer 1

When there is:
1) An intentional,
2) Harmful or offensive contact (that offends a reasonable sense of personal dignity),
3) With the plaintiff’s person (including anything connected to P).

Intentional = (a) a desire to bring about the harm/contact; OR (b) knowing the harm/contact is substantially certain to occur.

Bodily harm is the physical pain, illness, or impairment to another’s body.

Priority: HIGH

Question 2

What are the elements of Assault?

Answer 2

is an (1) intentional act, (2) that causes P to be placed in reasonable apprehension, (3) of an imminent harmful or offensive contact with P’s person.

Intentional = (a) for the purpose of causing such apprehension; OR (b) with knowledge to a substantial certainty that the apprehension will result.

Reasonable Apprehension = P must be aware of D’s act AND believe D is able to commit the act.

Priority: Medium

Question 3

When is a defendant liable for False Imprisonment?

Answer 3

is an (1) intentional act,
(2) to restrain P to fixed boundaries (with no reasonable means of escape), AND
(3) P is aware of the confinement or harmed by it.

Intentional = (a) purposely bringing about the confinement; OR (b) knowing the confinement is substantially certain to occur.

Restraint → by physical force or through threats.

Priority: Medium

Question 4

What are the elements of Intentional Infliction of Emotional Distress?

Answer 4

(1) intentional or reckless conduct,
(2) that was extreme and outrageous (transcends all bounds of decency),
(3) that causes extreme emotional distress (causation), AND
(4) P actually suffers severe emotional distress (damages).

Intentional = the person (a) desires to inflict
severe emotional distress; OR (b) knows that
such distress is certain or substantially certain to
result.

Reckless = a deliberate disregard of a high risk
that emotional distress will follow.

Priority: Medium

Question 5

Intentional Infliction of Emotional Distress to a Third Party

Answer 5

If conduct is directed at a third-party, D is liable for intentional/reckless infliction of emotional distress caused to:
a) A member of such person’s immediate family present at the time; OR
b) Any other person present, if it results in bodily harm.

Question 6

When is a defendant liable for Trespass to Land?

Answer 6

D is liable if: (1) he intentionally,
(2) either :
(a) enters the land physically (or remains on the land) or
(b) propels physical objects or a third person onto the land (or fails to remove an object he is under a duty to remove).

Intent to trespass is NOT required – only the
intent to be on the land is required.
− P must be the possessor of the land at the time
of the trespass.

Damages – P may recover the:
a) decrease in value of the property; OR
b) cost to repair the property.

Priority: Medium

Question 7

When is a person liable for Trespass to Chattels?

Answer 7

liable when:
1) D intentionally interferes with personal property of another (damage, preventing use by the owner); AND
2) The amount of damage is small.

Priority: Medium

Question 8

When is a person liable for Conversion?

Answer 8

liable when:
1) D intentionally interferes with personal property of another (damage, preventing use), AND
2) The amount of damage is substantial.

*P can recover the full market value of the property.

Priority: Medium

Question 9

Doctrine of Transferred Intent

Answer 9

The intent to harm one party can be transferred when:
1) D intends to commit a tort against one particular individual; AND
2) Either:
a) commits a different tort against that person; OR
b) another person is injured by the same or different tort.

*Applies to battery, assault, false imprisonment, trespass
to land, and trespass to chattels.

Priority: Medium

Question 10

Intentional Tort Defenses

Consent

Answer 10

Consent may be express or implied through words or conduct.

CANNOT exceed the bounds of the consent given.
− P must have capacity to consent.
− May be withdrawn at any time.
− P cannot consent to a crime (some courts).

Priority: HIGH

Question 11

Intentional Tort Defenses

Apparent Consent vs. Implied by Law Consent

Answer 11

Apparent Consent: When words or conduct are reasonably understood to be intended as consent (such as customary practice or a person’s failure to object).

Implied by Law Consent: Occurs in special circumstances, such as medical emergencies.

Question 12

Intentional Tort Defenses

What is the defense of Privilege?

Answer 12

It is conduct that under ordinary circumstances would subject the actor to liability, BUT is excused under the circumstances.

Priority: HIGH

Question 13

Intentional Tort Defenses

What are the different Privilege defenses?

Answer 13

Privilege includes:
1) Necessity (acts were necessary to prevent serious harm).
2) Self-defense/defense of others.
3) Defense of property.
4) Recapture of chattels.
5) Detention for investigation (shopkeepers privilege).

Priority: HIGH

Question 14

Intentional Tort Defenses

Necessity

Answer 14

D is NOT liable for harm to P’s property if D’s intrusion was (or reasonably appeared to be) necessary to prevent serious harm to a person or property.

− Applicable only to intentional torts against
property.
− Public Necessity (compete defense) → when D
acts for the public good.
− Private Necessity (incomplete defense) → when
D is protecting his own (or a few others) property
interests. D is liable for damages UNLESS the
purpose was to help P.

Question 15

Intentional Tort Defenses

Self Defense/ Defense of Others

Answer 15

D is not liable for harm to P if he:
1) reasonably believed P was going to harm him or another; AND
2) used reasonable force that was necessary to
protect himself or another.

Question 16

Intentional Tort Defenses

Defense of Property

Answer 16

may use reasonable force to defend property, but CANNOT use deadly force.

Question 17

Intentional Tort Defenses

Recapture of Chattels

Answer 17

An owner of wrongfully taken chattels may take prompt action and use reasonable, non-deadly force to recover the chattels from the wrongdoer.

− Force is deemed unreasonable without first
making a demand to return the item UNLESS
the demand is dangerous or futile.

Question 18

Intentional Tort Defenses

Detain for Investigation (Shopkeeper’s Privilege)

Answer 18

Shopkeepers MAY
(1) temporarily detain,
(2) a person reasonably suspected of theft,
(3) in or near their store,
(4) for the purpose of investigation.

− When a request to remain has been made and
refused, reasonable non-deadly force may be
used to detain.

Question 19

What are the elements for a prima facie case of Negligence?

Answer 19

1) A duty owed by the defendant to the plaintiff to conform to a specific standard of conduct;
2) A breach of that duty;
3) Causation (the breach was the actual and proximate cause of the plaintiff’s injuries); AND
4) Damages.

Priority: HIGH

Question 20

Affirmative Duty

Answer 20

There is NO general duty to act affirmatively EXCEPT IF:
a) A special pre-existing relationship exists between the parties (i.e. parent-child,
landowner-entrant);
b) D put P in peril;
c) D has already undertaken to rescue P (but liable only if it increases the risk of harm or harm is suffered because of reliance on the person providing help); OR
d) A duty imposed by law.

Priority: HIGH

Question 21

When is a Rescuer liable for injuries caused to another person?

Answer 21

If they fail to exercise reasonable care, AND:
a) The failure increased the risk of harm; OR
b) The harm is suffered because of reliance on the person providing the aid.

**A rescuer is liable if the aid is discontinued and the person is left in a worse position.

Priority: HIGH

Question 22

What is the Reasonable Person Standard?

Answer 22

Every person owes a duty to act as a reasonable prudent person would act under similar circumstances.

− Following community customs & statutory requirements are relevant, but not dispositive. It is merely evidence of reasonable care.

Physical Disability → must act as a reasonable person
with the disability would act.

Mental Disability or Below Average Intelligence →
must act as a reasonable person WITHOUT the disability
would act.

Priority: HIGH

Question 23

What is the Standard of Care for Children?

Answer 23

must act as a hypothetical child of similar age, experience, and intelligence acting under similar circumstances. Children under 5yrs old are usually without the capacity to be negligent.

EXCEPTION → If engaging in an adult activity, the child has a duty to act as reasonable adult.

Priority: HIGH

Question 24

What is the Standard of Care for Professionals?

Answer 24

Must act with the knowledge and skill as an average member of that profession participating in a similar community.
− Professional → doctors, lawyers, accountants, engineers, architects, nurses.

Specialist – If holding oneself out as a specialist, then
must act as an average member of that profession
practicing that specialty.

Medical Doctor – Held to the degree of care and skill of
an average qualified practitioner under a national
standard.

Psychologist / Psychotherapist – Also have a duty to
warn victims when their patient makes a credible threat
if:
(1) the therapist believed the patient posed a real risk,
(2) of serious physical violence,
(3) to a readily identifiable victim, and
(4) failed to take steps to warn the victim.

Priority: HIGH

Question 25

What is the Standard of Care for Landowners?

Answer 25

A landowner’s standard of care under traditional rules usually depends on the status of the type of entrant (trespasser, licensee, invitee)

*Some states hold that a landowner/possessor must exercise reasonable care under the circumstances to ALL entrants.

Priority: HIGH

Question 26

Undiscovered Trespasser vs. Anticipated Trespasser

Answer 26

Undiscovered Trespasser: NO duty is owed by the landowner. But premise possessor cant act wantonly or willfully.

Anticipated Trespasser (without permission but expected):
(1) must warn of (or make safe) highly dangerous artificial conditions that the landowner knows of and is not obvious to the trespasser

Priority: HIGH

Question 27

What is the Attractive Nuisance Doctrine?

Answer 27

Landowner/Possessor owes a duty to child trespassers to make the premises
reasonably safe or warn of hidden dangers on the land.

Will be liable if:
1) knows (should know) of a dangerous artificial condition – likely to cause death or serious bodily injury;
2) knows (should know) children are likely to frequent the area;
3) children are unlikely to discover the condition or appreciate the risks; AND
4) the risk of harm outweighs the expense of making the condition safe.

*Attractive nuisance doctrine DOES NOT apply if the
child is engaging in an adult activity.

Priority: HIGH

Question 28

Licensee vs. Invitee

Answer 28

Licensee(those who come onto the land with express or implied permission but for their own purpose, includes social guests):
(1) Landowner/possessor of land must warn of (or make safe) dangerous artificial and natural conditions that are known to the landowner/possessor of land and that is not obvious to the social guest
-duty is the same as for anticipated trespassers, but it applies to all dangerous artificial AND NATURAL conditions

Invitee(enters for the owner’s benefit, shop, or business): Landowner owes all the duties he would to a Licensee, PLUS the duty to reasonably INSPECT for dangerous conditions

Priority: HIGH

Question 29

Landlord’s Duty to Tenants

Answer 29

Landlord generally has NO duty to maintain the leased premises (unless
provided for by law or contract).
− But, landlord MUST warn of latent defects.

Duty to Make Premises Safe from Criminal Acts:
− Common Law → Landlord has NO duty to
provide a safe premises so that tenants are safe
from criminal acts of third-persons.
− Modern View → Landlord has a duty to take
reasonable precautions to protect a tenant
against foreseeable attacks.

Question 30

When does Negligence Per Se apply?

Answer 30

The elements of duty & breach are established when D breaches a statute.

To use Negligence Per Se, P must show:
1) Statute’s purpose is to prevent the type of harm P suffered; AND
2) P is in the class of persons the statute seeks to protect.

Two Exceptions:
▪ Exception #1 → Compliance with the statute would have been more dangerous than the violation of it.
▪ Exception #2 → Compliance was impossible.

Priority: HIGH

Question 31

Res Ipsa Loquitur

Answer 31

Can be used when the breach element is difficult to prove.

Restatement (Second) Test – Plaintiff must show that:
1) the injury is of a kind that typically does not occur in the absence of negligence;
2) the negligence is attributable to the defendant (usually because the defendant is in exclusive control of the instrumentality causing the injury)

• if P can show res ipsa loquitur, it means the case should go to trial and no directed verdict should be entered for D. IT DOES NOT NECESSARILY MEAN THAT P WINS HIS CASE.
  *res ipsa loquitur basically only creates an inference that D breached his duty

Priority: HIGH

Question 32

Causation

Answer 32

P must show that D’s conduct was BOTH the actual and proximate cause of the injury.

Actual Cause:
a. Usually established by the “but for” test—an act is the actual cause of
an injury when it would not have occurred but for the act
b. Merged causes—when two acts bring about an injury and either one
alone would have sufficed, either of the acts is an actual cause of the
injury if it was a “substantial factor” in bringing it about
c. Unascertainable causes—when two acts were negligent but it is not
clear which was the actual cause of the injury, the burden shifts to
each of the negligent actors to show that his negligent act was not the
actual cause

Proximate Cause → injury must have been a foreseeable result of the breach.
− D is NOT liable for remote harms caused.

Priority: HIGH

Question 33

What is an Intervening Cause?

Answer 33

Is an act that occurs after the breach that contributes to the harm.
− Intervening causes that are dependent (a natural reaction to) D’s wrongful acts → usually deemed foreseeable.
− If the intervening cause resulted in an unexpected injury → it’s usually deemed
unforeseeable and D is NOT liable.

Medical Malpractice → is ALWAYS deemed foreseeable.
Criminal Acts → usually NOT foreseeable UNLESS:
a) D should have anticipated the criminal act; OR
b) D’s conduct makes the criminal act more likely.

Priority: HIGH

Question 34

What is the Eggshell Plaintiff Rule?

Answer 34

“Take P as you find P”

D is liable for all harm P suffers as a result of his conduct, EVEN IF P suffers from a pre-existing mental or physical condition that makes the harm worse than what a normal person might suffer

Priority: HIGH

Question 35

What is the Eggshell Plaintiff Rule?

Answer 35

A tortfeasor takes his victim as he finds him. The tortfeasor is liable for ALL harm a plaintiff suffers as a result of his conduct, even if plaintiff suffered from a pre-existing condition making the harm greater.

Priority: HIGH

Question 36

Pure Comparative Negligence
vs.
Partial Comparative Negligence
vs.
Contributory Negligence

Answer 36

Pure Comparative Negligence → P’s negligence (or assumption of risk) will reduce his recoverable damages by the percentage of his own fault.

Partial Comparative Negligence → If P is 50% or more
at fault, then P’s claim is barred.
− If P is less than 50% at fault, then damages are
reduced by the percentage of his own fault.

Contributory Negligence → P’s claim is barred if he
contributed to his injury.
− Exception #1 → D had the last opportunity to
avoid the accident.
− Exception #2 → D was reckless.

MBE / MEE Tip → Only apply pure comparative
negligence (unless explicitly instructed otherwise).

Priority: HIGH

Question 37

Assumption of Risk

Answer 37

Is a defense to negligence, and applies if P voluntarily assumed a known risk.
− May be express (by agreement) OR implied (an average person would appreciate the risk).

Question 38

What are the 3 instances a plaintiff can recover for Negligent Infliction of Emotional Distress?

Answer 38

1) Near Miss Case: (1) D’s negligence, (2) created foreseeable risk of physical injury, (3) P is in zone of danger(sufficiently close to D such that they are subject to a high risk of a physical impact), AND (4) P manifests physical symptoms.

2) Bystander Claim: (1) D’s negligence, (2) P is a contemporaneous witness to negligent bodily injury inflicted on P’s close family member( parent, child, spouse), AND (3) P manifests physical symptoms.

3) Pre-Existing Relationship: (1) a Pre-existing relationship between P and D, AND (2) D’s negligent act foreseeably causes distress.
-Recovery is rare; only available in egregious situations.

Priority: HIGH

Question 39

Respondeat Superior Doctrine

Answer 39

An employer is liable for an employee’s negligent acts if the employee was acting within the scope of the employment.

Employee acts within Scope of Employment when:
a) Performing work assigned by the employer; OR
b) Engaging in a course of conduct subject to the
employer’s control.

Intentional Torts – are generally outside the scope.
EXCEPTIONS:
a) Employee is further the business of the employer (i.e. removing customers from premisses because theyre rowdy);
b) Force is authorized in the employment (i.e a bouncer) OR
c) Friction is generated by the employment. (i.e bill collector)

Question 40

Liability if Respondeat Superior Doctrine is Inapplicable

In what situations is a principal still liable despite the doctrine of respondeat superior being inapplicable?

Answer 40

A principal / employer will be liable for an agent’s acts outside the respondeat superior doctrine if:
a) Principal intended the conduct / consequences;
b) Principal was negligent or reckless in selecting, training, supervising, or controlling the agent;
c) It is a non-delegable duty; OR
d) Agent had apparent authority, the agent’s actions taken with apparent authority constitute the tort (or enable it to be concealed), and the third-party reasonably relied on such authority.

Question 41

Vicarious Liability

Employee
vs.
Independent Contractor

Answer 41

Employee: Employer controls manner/method of the employee’s performance of work. Employer IS vicariously liable for negligent acts of employee (within scope or employment).

Independent Contractor: The hiring party DOES NOT control the manner and method in which the independent contractor performs the job. Principal/employer is generally NOT liable for torts committed by an independent contractor.
Exceptions:
a) the independent contractor is engaged in inherently dangerous activities
b) the principal’s duty is simply nondelegable ( i.e. duty of a business to keep its premises safe for customers)

Priority: HIGH

Question 42

Vicarious Liability

What determines whether a person is an Independent Contractor or Employee?

Answer 42

Whether the principal had the right to control the manner and method in which the job is performed.

(If the principal had substantial control, it’s likely the person will be deemed an employee).

Priority: HIGH

Question 43

Vicarious Liability – Respondeat Superior

Acts Within Scope of Employment
vs.
Acts Outside Scope of Employment

Answer 43

Within Scope: When preforming work assigned by the employer OR engaging in conduct subject to the employer’s control.

Outside Scope: Conduct is NOT within the scope if it’s unrelated and not intended to serve any purpose of the employer.
− BUT see exception below.

Priority: HIGH

Question 44

Joint and Several Liability

Answer 44

If multiple Ds are the proximate cause of a single indivisible harm, then P may
recover the ENTIRE amount of damages from any defendant.

− BUT, any D who pays more than his share of the
damages may bring action against the other Ds
for contribution.

Question 45

When is a defendant entitled to Indemnification?

Answer 45

A passive tortfeasor can assert its claim against an active tortfeasor to recover the FULL amount it paid (or may have to pay) to P.

indemnity usually applies when the paying D is much less responsible than the nonpaying defendant or is liable only vicariously because of their relationship with the nonpaying party

Indemnity is available:
- in vicarious liability situations
-under strict products liability for the non-manufacturer

Priority: Medium

Question 46

When is a defendant entitled to Contribution?

Answer 46

If joint and several liability applies, contribution allows a tortfeasor who paid more than his share of the damages to recover the excess from other tortfeasors in proportion to their fault

Priority: Medium

Question 47

What is the Doctrine of Alternative Liability?

Answer 47

It allows the jury to find ALL defendants liable if:
1) Multiple defendants are deemed negligent,
2) But it’s unclear which one caused the plaintiff’s injury.

Priority: HIGH

Question 48

What is the Doctrine of Joint Enterprise?

Answer 48

It allows the negligence of one defendant to be imputed to other defendants if:
1) Multiple defendants were engaged in a common project or enterprise; AND
2) All defendants made an explicit/implied agreement to engage in tortious conduct.

Priority: HIGH

Question 49

What is the Doctrine of Market Share Liability?

Answer 49

ALL manufacturers (of products identical to the one that harmed P) are liable to their proportional share of the market when the following factors are present:
1) All the named Ds are potential tortfeasors;
2) The harmful products are identical and share the same defective qualities;
3) P is unable to identify which D caused the injury; AND
4) Substantially all of the manufacturers that created the defective products during the relevant time period are named as Ds.

Priority: HIGH

Question 50

Defamation

What are the elements of Defamation?

Answer 50

The elements to prove a prima facie case of defamation are:
1) A false defamatory statement about P ( a statement that tends to harm the reputation of another),
2) published to a third party;
3) Fault (at least negligence) by D, AND
4) Damages.

Priority: Medium

Question 51

Defamation

Slander and the four Slander Per Se categories?

Answer 51

Slander (an oral defamatory statement) → need to
prove special damages (pecuniary loss).

UNLESS its Slander Per Se –> defamatory statements that:
1) adversely reflect on P’s business/profession
2) A statement of unchastity if P is a woman
3) A statement that the plaintiff had/has a loathsome disease.
4) Attributing a crime of moral turpitude to the plaintiff.

Priority: Medium

Question 52

Defamation

Libel

Answer 52

Libel (defamation in writing or other permanent format) → DO NOT
need to prove special damages (pecuniary loss), damages are presumed

Minority of courts will presume damages only if the statement is defamatory on its face.

Question 53

Defamation

Who is deemed a Public Figure?

What heightened standard applies if plaintiff is a Public Figure or Public Official?

Answer 53

If person is a Public Figure or Official, then a heightened defamation standard applies.
P must also prove: Actual malice ( recklessness or knowledge of falsity)

Public Figure = Either (a) injected himself into a public controversy; OR (b) having achieved widespread notoriety/fame.

Priority: Medium

Question 54

Defamation

If plaintiff is a Private Figure on a Matter of Public Concern, what standard applies?

Answer 54

Plaintiff MUST ALSO PROVE negligence.

Priority: Medium

Question 55

Defenses to Defamation:

Absolute Privilege

Answer 55

a complete defense
− Applies to statements made → in judicial
proceedings, between spouses, by executive
branch officials, and by legislators during proceedings

Question 56

Defenses to Defamation

Qualified Privilege

Answer 56

qualified privilege only arises when there is a public interest in encouraging candor.
It applies when (1) the statement is conditionally privileged, AND
(2) privilege is not abused (did not act with actual malice).

applies to statements:
- by former/prospective employers made in good faith for a legitimate purpose (references/recommendations)
- in gov’t reports of official proceedings
- made to defend one’s own actions, property, or reputation

Question 57

What are the Invasion of Privacy torts?

Answer 57

1) Misappropriation of Name or Picture.
2) False Light.
3) Intrusion of Privacy.
4) Public Disclosure of Private Facts.

Priority: Medium

Question 58

What are the elements of Misappropriation of Name or Picture?

Answer 58

When defendant:
1) Uses plaintiff’s name or likeness,
2) for commercial advantage (promoting a service/product)
*Newsworthiness is a defense.

Priority: Medium

Question 59

What are the elements of False Light?

Answer 59

When defendant:
1) Causes widespread dissemination,
2) Of plaintiff’s beliefs, thoughts, or actions,
3) In a false light,
4) That would be highly objectionable to a reasonable person.

If a public figure or matter of public concern →
MUST show actual malice (knowledge of falsity
or reckless disregard).

Priority: Medium

Question 60

What are the elements of Intrusion of Privacy?

Answer 60

When:
1) D intrudes into the private affairs of P;
2) P has a reasonable expectation of privacy; AND
3) The intrusion is highly objectionable to a reasonable person.

− Examples → reading private mail, illegal
wiretapping.

Priority: Medium

Question 61

What are the elements of Public Disclosure of Private Facts?

Answer 61

When defendant:
1) Caused widespread dissemination,
2) Of truthful private information,
3) That would be highly objectionable to a reasonable person.

*Newsworthiness is a defense UNLESS actual malice (knowledge of falsity or reckless
disregard) is present.

Priority: Medium

Question 62

What are the elements of Intentional Interference with Business Relations?

Answer 62

1) There was a contract or business expectancy;
2) D knew of the contract/expectancy;
3) D intentionally induced the party to breach or terminate the contract/relationship;
4) A breach occurred; AND
5) Plaintiff suffered damages.

Defenses:
− Legitimate competitive activity (no dishonest, wrongful, or illegal act used).
− Giving truthful information.
− Having a financial interest in the party that breached or terminated.
− Honestly giving requested advice, usually in a special relationship (i.e. attorney-client, parentchild, clergy-penitent).

Priority: Medium

Question 63

What are the elements for Intentional Misrepresentation (fraud/deceit)?

Answer 63

Plaintiff must show:
1) Misrepresentation of material facts by D;
2) The defendant knew the statement was false (scienter);
3) Intent to induce P;
4) Actual and reasonable reliance by P; AND
5) Damages.

Priority: Medium

Question 64

What are the elements for Negligent Misrepresentation?

Answer 64

Plaintiff must show:
1) A misrepresentation (false statement of material fact);
2) Supplied for the guidance of others in a business transaction;
3) D knew (or should have known) that the information was supplied to guide P in his
business transactions;
4) D was negligent in obtaining or communicating the false information;
5) Actual and reasonable reliance by P; AND
6) The false information proximately caused P’s
damages.

Concealment = an affirmative act intended to keep another from learning a fact.
− Concealment is deemed a misrepresentation.

Priority: Medium

Question 65

Negligent Misrepresentation

When is there a duty to disclose information?

Answer 65

There is NO duty to disclose information UNLESS:
a) a fiduciary relationship exists;
b) it’s necessary to correct an earlier mistake;
c) active concealment occurs; OR
d) a seller of real property knows material facts that affect the value of the property (that the buyer is unaware of and cannot reasonably discover).

Question 66

Public Nuisance vs. Private Nuisance

Answer 66

Public Nuisance: (1) an unreasonable interference, (2) with the health, safety, or property rights, (3) of the community (a considerable amount of people or an entire community/neighborhood)
-P must show ACTUAL damages.

Private Nuisance: (1) a substantial and unreasonable interference, (2) with a person’s use/enjoyment of her property.
-MUST be offensive, inconvenient, or annoying to a reasonable person

Priority: Medium

Question 67

Defenses to Public/Private Nuisance

Answer 67

-Coming to the nuisance (residential landowner knowingly came into a neighborhood with a nuisance).
− Statutory compliance.

Question 68

Common Law Strict Liability

Wild & Domesticated Animals, Trespassing Animals

Answer 68

Domestic Animals – Landowner is NOT strictly liable UNLESS he has knowledge of that particular animal’s vicious propensities that are not common to the species.
− Includes dogs, cats, & farm animals.
- bulls or honeybees does NOT create strict liability

Wild Animals – Landowner is strictly liable for injuries caused by foreseeable harms caused by wild animals

Animal owners are strictly liable for the foreseeable damage done by a trespass of his animals.

Question 69

Common Law Strict Liability

What is an Abnormally Dangerous Activity?

Answer 69

An activity that:
1) Is not of common usage in the community; AND
2) Creates a foreseeable and highly significant risk of physical harm (even when reasonable care is exercised).

Priority: Medium

Question 70

What are the elements for Strict Products Liability?

Answer 70

A commercial supplier is strictly liable for any harm caused by its product.
Elements:
1) Product was defective when it left the hands of D (manufacturing defect, design defect, or failure to warn);
2) Product was not altered when it reached P;
3) Caused an injury to P when it was being used in an intended or unintended foreseeable use; AND
4) D is a commercial supplier who routinely deals in goods of this type.

Priority: HIGH

Question 71

What 3 theories are available to prove Strict Products Liability?

Answer 71

Manufacturing Defect: Product differs from the intended design AND is more dangerous than if made properly.

Design Defect: Exists if the product can be made or manufactured safer, more practical, and at a similar cost.
− Trier of fact MUST balance the alternative designs available (incl. cost & utility) vs. the risk to consumers.

Failure to Warn: Plaintiff was not warned of the risks of the product, which are not obvious to an ordinary user, but known to the designer/manufacturer
* the warning MUST be proportional to the risk.

Priority: HIGH

Question 72

Strict Products Liability

What is the definition of a Commercial Supplier?

Answer 72

Any person/entity who is engaged in selling goods of the type (routinely sells such goods).

*A strict products liability suit may ONLY be brought against a commercial supplier of goods.
-Casual sellers and service providers are NOT commercial suppliers.
Priority: HIGH

Question 73

Strict Products Liability

What Damages are available?

Answer 73

Recovery for personal injury and property damage is allowed.
− Recovery for solely economic loss is NOT allowed.

Question 74

Products Liability – Breach of Warranty

What is the Implied Warranty of Merchantability?

Answer 74

requires that all goods sold by a merchant (a person dealing in goods of the kind) MUST be fit for their ordinary purpose.

Priority: Medium

Question 75

Products Liability – Breach of Warranty

When is an Implied Warranty of Fitness for a Particular Purpose created?

Answer 75

Created when:
1) A seller knows (or has reason to know) of the buyer’s particular purpose for the goods; AND
2) Buyer relies on seller’s skill or judgment to select/furnish suitable goods.

*A breach occurs if the goods are NOT fit for the
particular purpose.

Priority: Medium

Question 76

Products Liability – Breach of Warranty

When is an Express Warranty created?

Answer 76

Creat when:
1) A seller makes an affirmation of fact, promise, or description, or provides a sample;
2) Which relates to the goods; AND
3) It becomes part of the basis of the bargain.

Priority: Medium