Torts Flashcards
VL
An employer is liable for an employee’s torts if the employer has the right to control the employee’s acts and the tortious conduct is committed within the scope of employment.
False Imprisonment
False imprisonment requires that
(i) a person intend to confine the plaintiff within a limited area,
(ii) the person’s conduct causes the plaintiff’s confinement or the defendant fails to release the plaintiff from confinement despite owing a duty to do so, and
(iii) the plaintiff is conscious of the confinement.
The confinement may be physical, may be accomplished through use of threats, by failure to provide a means of escape, or by invalid use of legal authority. A plaintiff is not imprisoned if he submitted willingly to confinement. A plaintiff is not confined if he knows of a reasonable means of safe escape.
NIED
A plaintiff can recover for negligent infliction of emotional distress (NIED) from a defendant whose tortious conduct placed the plaintiff in harm’s way if the plaintiff can demonstrate that she was within the** zone of danger and the threat of physical impact caused emotional distress. **
==>** Generally, the distress must exhibit some physical symptoms. **
==> In virtually all jurisdictions, emotional distress must result from sensory and contemporaneous observance of the accident itself, not the receipt of news relating to the accident.
To recover as a bystander, the plaintiff must be closely related to a person injured by the defendant, be present at the scene of the injury, and personally observe or perceive the injury.
Special cases
Negligence
To prove negligence,
1. the plaintiff must establish that the defendant owed a duty,
2. that it breached that duty,
3. that its actions were both the actual and proximate cause of injury,
4. and that damages resulted.
Duty owed to invitees (ppl that come in for business reasons)
Def =
1. Enters land open to public (eg, churchgoer)
2. Enters land for business purpose (eg, store customer)
Duty =
- a duty to use reasonable care to conduct reasonable inspections of the property,
- discover unreasonably dangerous conditions,
- and protect the invitee from them.
==> Such a landowner is liable for negligence that causes an invitee to be injured due to unsafe conditions.
What constitutes reasonable care?
In determining whether conduct lacks reasonable care, courts consider
(i) the foreseeable likelihood that the person’s conduct will result in harm,
(ii) the foreseeable severity of any harm that may result, and
(iii) the burden of precautions to eliminate or reduce the risk of harm.
Duty owed to Licensees
Def: Enters land with permission (eg, social guest)
Duty: Warn of known latent dangers & use reasonable care in active operations
Duty owed to Trespassers
Duty ==> depends
Known or frequent trespassers: warn of known artificial dangers & use reasonable care in active operations
Unknown or unanticipated trespassers: no duty
Trespass
- **Intent to enter land or cause physical invasion, **not to trespass; transferred intent applies
- **Physical invasion **of property
- Proper P—anyone in actual or constructive possession of land
Necessity as defense to trespass
* Private—qualified privilege for limited number of people to enter or remain on land to protect own person/property from serious harm; not liable for trespass but responsible
for actual damages
* Public—unqualified/absolute privilege to avert imminent public disaster; not liable for damage if actions reasonable or reasonable belief that necessity existed, even if initial entry not necessary
Elements of SL
- Absolute duty to make P’s person or property safe
- Actual & proximate causation
- Damages
What gets SL?
DAD
Dangerous activities, Animals
and Defective/dangerous products
Abnormally Dangerous Activities
Not commonly engaged in; inherent, foreseeable, and highly significant risk of harm (look to gravity of harm, inappropriateness of place, limited value of activity)
==> S/L limited to harm expected from activity
Animals
1. Wild animals
R2d includes all animals not by custom devoted to the service of humankind where it is being kept; R3d excludes animals that pose no obvious risk of causing substantial personal injury
Owner/possessor is S/L for harm done by wild animal despite owner’s precautions to prevent harm, as long as harm arises from dangerous propensity characteristic of animal or about which owner has reason to know
Owner/possessor S/L for injuries caused by P’s fearful reaction to unrestrained wild animal
2. Abnormally dangerous [domestic] animals
-The owner or possessor of an animal is strictly liable for injuries caused by that animal if he knows or has reason to know that the animal has dangerous propensities abnormal for the animal’s category or species, and the harm results from those dangerous propensities.
-Otherwise, at common law, the owner of a domestic animal is generally liable only for negligence. e
3. Trespassing animals—owner/possessor S/L for reasonably foreseeable damage caused by trespassing animal
Trespassers—property possessor not S/L for injuries inflicted by his animals against a
trespasser, except, in some jurisdictions, for injuries inflicted by a vicious watchdog
Strict Products Liability
Elements
1. Product was defective (in manufacture, design, or failure to warn)
2. Defect existed when it left D’s control
3. Defect caused P’s injury when the product was used in a reasonably foreseeable way
Damages = personal injury or property damage, pure economic loss must be brought under warranty action
==> “Market share” liability—for fungible defective products produced by multiple manufacturers, jury can apportion damages based on manufacturer’s market share
Defendants = must be in the business of selling (includes manufacturer, distributor, and
retail seller)
* If D provides both products and services, generally liable if product is consumed, not if product is only used (i.e., hospital not generally liable as a distributor of defective implants)
* Casual sellers, auctioneers, P’s employer, and service providers generally ==> not S/L
* Retail distributors of a prescription drug/device may be liable for own negligence, ==> but only S/L for manufacturing defects
Manufacturing defect =product does not conform to D’s own specifications
Design defect
o Consumer expectation test—dangerous beyond expectation of ordinary consumer
o Risk-utility test—risks > benefits and reasonable alternative design (economically feasible) available; failure to use that design rendered product unreasonably unsafe
Failure-to-warn defect
o (i) Foreseeable risk of harm, (ii) not obvious to ordinary user of product, and (iii) risks could have been reduced or avoided with reasonable instructions or warnings
==> Learned-intermediary rule—manufacturer of prescription drug or medical device typically satisfies duty to warn by warning prescribing physician of problems with the drug/device, unless (i) manufacturer knows drug/device will be dispensed without personal intervention or evaluation of a healthcare provider, or (ii) in the case of birth control pills
Goods Warranties
Implied
Merchantability—product is generally acceptable and reasonably fit for ordinary purpose
Fitness—product fit for particular purpose; seller must know purpose and buyer must rely on seller’s skill or judgment in supplying product
Damages—personal injury; property damage; pure economic loss
**Express** * Affirmation of fact or a promise about product; part of the basis of bargain * Seller liable for any breach of express warranty, regardless of fault
Defenses
Disclaimers
a. Consumer goods—limitation of consequential damages for personal injury is unconscionable
b. Express warranties—valid only if consistent with warranty (usually not)
Comparative fault and A/R—same as in S/L claims
* Contributory negligence—not a bar except when it overlaps A/R
* Misuse—prevents recovery under the implied warranty of merchantability when the
product is warranted to be fit for ordinary purposes (majority)
* Claim generally fails if P fails to provide seller with notice of breach of warranty within the statutorily required time period or “a reasonable period of time”
Privity requirements
o Alternative A (majority)—allows a member of the buyer’s family/household to recover for personal injury (not property damage or pure economic loss)
o Alternative B—anyone reasonably expected to use, consume, or be affected by the product may recover for personal injury only
o Alternative C—Alternative B + recovery for property damage and economic loss
