Torts Flashcards
Will abnormal sensitivity rise to a nuisance violation if it cause him to find the interference offensive, annoying, or intolerable when a normal person in the community would not?
No, an interference with a plaintiffs use, and enjoyment of his or her property is not substantial and will not support a nuisance claim if it’s based off of a plaintiff’s , abnormal sensitivity, causing him to find that the interference was offensive, annoying, or intolerable, a normal person in the community would not
What duty of care does an actor have if they know a reasonably should know that their conduct has exposed others to an unreasonable risk of harm from a third-party
Have a duty to use reasonable care to protect others
What is the emergency doctrine
A Plaintiffs consent is presumed
1 - the purpose is to prevent or reduce risk
2 - the defendant reasonably believes that his/her conduct is necessary to prevent or reduce risk that substantially out weighs the plaintiffs interest in avoiding the conduct
3 - the defendant reasonably believes that immediate action is needed
AND
4 - he/she has reason to believe that the plaintiff would have actually consented
Is there a duty under the foreseeably harmed defendant theory to unborn viable children?
Yes, a pregnant women can have a claim for the child too
A defendant who has permission to use the plaintiff’s chattel commits conversion when he/she
(1) intentionally uses the chattel in a way that exceeds the scope of permission and (2) seriously violates the plaintiff’s right to control the chattel
When a defendant has committed conversion what damages can be recovered?
the defendant is liable for the fair market value of the chattel at the time and place of conversion
Can the duty to keep premises safe for business visitors be delegated?
No, it cannot. Even for an independent contractor? - correct, the store will still be on the hook as keeping the premises safe for business visitors is a nondelegable duty
What is a wrongful birth claim
allows parents to recover for the birth of an unhealthy child if they can prove that (1) the doctor negligently failed to inform them of the substantial risk that their future child may have a birth defect and (2) had the parents known about that risk, the child would not have been conceived or born
Define
Libel
Libel is a defamatory statement that appears in written or other physical form.
What must a Plaintiff prove for Libel?
1) the defendant knowingly made a false statement about the plaintiff or negligently failed to determine its falsity
2) That the type of statement would** tend to harm t**he plaintiff’s reputation
3) that the defendant intentionally or negligenly communicated that statement to a third party (Key to a defamation claim)
Is Consent a defense to Libel/Defamation?
Yes, it can be apparent, actual or implied
Is pecuniary loss an element of libel?
NO - it is however an element of slander (spoken defamation)
If damage occurs during trespass to chattel even through it was justified by private necessity - can the property owner recover for damages?
Yes, because the damage is trespass to chattel and a person who enters anothers property and because damage even for private necessity must pay for the actual damages cause
What duty is owed to anticipated trespassers?
to protect them from concealed, dangerous, artificial conditions.
Need to warn them
Generally, a plaintiff can recover for negligent infliction of emotional distress only if the defendant’s action causes a threat of physical impact that results in some kind of bodily harm (e.g. heart attack). What is the exception to this rule?
there is an exception to the physical-injury requirement in cases of misinforming someone that a family member has died.
What is pure comparative negligence
the plaintiff’s fault reduces the award by the percent of the plaintiffs fault.
Example: Plaintiff is 30% at fault, Defendant 1 is 30% at fault, and Defendant 2 is 40% at fault.
Plaintiff can recover 70%
Under a strict products liability theory, can a plaintiff recover for solely economic loss?
NO.
Publication of defamatory matter is
intentional or negligent communication to the third party (other than the person being defamed) who understands its defamatory nature.
A commericla supplier of a component that is integrated into a defective prodict is subject to strict liability when
1) the component is defective or
2) the supplier substantially participated in integrating the component into the product’s design and that integration caused the product to be defective
if a supplier gave specific instructions and then the manufacture does something else - the supplier is not strictly liable
Which of the following are assault?
1) Words only
2) words and act
3) act only
1) no assault
2) Assault
3) Assault
Define
Fraud
intentional misrepresentation or deceit
1) the defendant knowingly or recklessly misrepresents a material fact with the intent to induce the plaintiff’s reliance, and
2) the plainiff reasonably relies on that misrepresentation and suffer pecuniary loss
What are nondelegable duties?
1) maintain safe conditions on premises open to public
2) safely perform activites that are
- abnormally or highly dangerous
- infringe on private property (nuisance, trespass)
- are regulated by law
- are conducted in public place
If the defamation claim is in regards to a politician - what is the extra element that must be proven?
Actual malice
Under a defective product (strict liability) when must the product be defective and who can be held liable?
The product must have been defective at the time of sale or distribution.
A retailer and a manufacture can be liable even when a retailer is not responsible for the defect or negligent in any way
To recover under a theory of public disclosure of private facts, the plaintiff must show:
1) the defendant gave publicity to a matter concerning the private life of another
2) the matter publicized is of a kind that would be highly offensive to a reasonable person and
3) is not of legitimate concern to the public
Does an IIED claim require phsysical injury?
No, it only requires that the defendant was a least reckless as to the risk that their extreme or outrageous conduct would cause the plaintiff severe emotional distress
For defamation or libel brought by a public official or figure what elements must be proven?
1) false statement was made with actual malice (knwing or reckless disregard of the statement’s falsity)
2) statement was the type that would tend to harm Plaintiff’s reputation
3) the defendant intentionally or negligently commincated that statement to a third party
Under the majority approach, who can have standing to sue for a product warranty?
Those in privity. A purchaser or members of a purchaser’s family or household
Minority view extends thise to anyone reasonably expected to be affected
Can punitive damages be awarded for negligence?
No, Punitive damages are awarded to deter outrageous, malicious, or evil conduct which includes intentional or reckless conduct
negligence involves mere unreasonable conduct
To establishe a prima facie case of intentional misrepresentation (fraud or deceit) the plaintiff must show:
1) the defendant knowingly or recklessly misrepresented a material fact with the intent to induce the plaintiff’s reliance AND
2) the plaintiff reasonably relied on the misrepresentation and suffered pecuniar loss (monetary) as a result
Does assumption of the risk apply to strict liability?
YES, including stict products liability
What is the modern approach to land entrants? (as opposed to the traditional approach)
land possessors owe all land entrants (except flagrant trespassers) a duty of reasonable care
When acting in self-defense, when would a defendant be liable to a bystander for an intentional tort?
a defendant may be liable to a bystander for an intentional tort if the defendant intentionally uses force against the bystander
