Torts Flashcards

Question

# IV. Product Liability 2. Negligence liability

Answer 1

Besonderheiten im Vergleich zu normaler Negligence: 1. Duty of care: Any foreseeable Π. Standard of care of reasonably prudent commercial seller 2. Breach: Reasonableness of Δ’s conduct whose failure resulted in supplying a defective product, Res ipsa loquitur may be invoked by Π 3. Causation: Actual cause and proximate cause. Learned intermediary rule may also apply, Includes negligently failing to inspect, with evidence that would lead a reasonable person to do so 4. Damages: Physical injury or property damages. Purely economic losses NOT recoverable 5. DEFENSES: Same as in a general negligence action

Answer 2

Wer? anders als nur Käufer bei Mängelfällen auch family, household, guests, vertial privity not required **1. Merchantability** (breachable by seller of goods) refers to whether the goods are of average acceptable quality and fit for the ordinary purpose the goods are used for **2. Fitness for a particular purpose** refers to whether a seller of goods knows or has reason to know the particular purpose for the goods and that the buyer is relying on the seller’s judgment in selecting the goods **3. Breach:** If product fails to meet either of above standards, warranty is breached. No need to show fault **4. Causation:** Actual + proximate cause as in general negligence **5. Damages:** Personal, property damages. Purely economic losses are recoverable **6. DEFENSES:** (1) assumption of risk (using while knowing breach) (2) contributory negligence if Π discovered defect (3) failure to give notice of breach (under UCC)

Answer 3

Δ makes representation affirming a fact or promising to the buyer as to the product that becomes the basis of the bargain. No need to show breach, just that product did not live up to warranty. Causation, damages, DEFENSES are treated as they are under implied warranties

Answer 4

To establish a prima facie case for defamation, the following 4 or 6 elements must be proved: **1. Defamatory language** tending to adversely affect one’s reputation. Opinions must be based on specific facts to be actionable **2. Of or concerning Π:** Reasonable person would understand that the statement referred to Π (incl. w/in small group) **3. Publication:** Someone other than Π received and reasonably understood the defamatory matter due to Δ’s negligent or intentional publication (intent to publish, not to defame) **4. Damage to Π’s reputation:** must be proved depending on type of defamation (libel or slander) a) Libel: Any comm’n that has some permanence (e.g., writing, radio, TV, photo). General damages presumed b) Slander: Spoken, oral defamation. Π must prove special (pecuniary) damages, unless slander per se (impute improper conduct in Π’s trade, accusation of crime involving moral turpitude, current loathsome disease, lack of chastity of woman) Constitutional issues (further analyze on top of above elements if defamation involves matters of public concern) **5. Falsity:** Π must prove that the statement was false. If not, Π may still raise IIED or privacy torts **6. Fault of Δ:** If Π is… a) Public official or figure? A public figure has achieved fame or notoriety or has voluntarily assumed a central role in a public controversy. Π must show malice (knowledge of falsity of statement or reckless disregard as to truth or falsity) b) Private person, public concern? Π need only prove negligence regarding falsity and actual injury c) Private concern? Constitutional restrictions do not apply. Prove publication only 7. DEFENSES (1) Qualified privilege: Comm’n that appears reasonably necessary to protect Δ’s own legitimate interests or is of interest to recipient, e.g., past employer’s reference, reports of public hearings, newsworthy events EXCEPTIONS: Δ loses privilege if acted with malice (know falsity or recklessly disregard truth) or statement is outside scope of privilege (2) Truth: If Δ can prove substantial truth, it would be a defense (Π’s burden to prove falsity) (3) Absolute privilege until repeated in a context where there is no privilege: Statements made by legislators (or aides) on floor, between federal executive officials, judicial proceedings, comm’n between spouses

Answer 5

Fraudulent misrepresentation: Material misrepresentation made with intent or knowledge to mislead, and Π reasonably relied on the misrepresentation ii. Negligent misrepresentation: Material misrepresentation made with negligent or innocent scienter, and Π reasonably relied on the misrepresentation iii. Fraudulent nondisclosure: Silence when there was a duty to disclose a material fact, and Π reasonably

Answer 6

(not a tort in itself but a type of harm by negligent or intentional action) A. Private nuisance is a substantial and unreasonable interference with Π’s use and enjoyment of possessed land by intentional, negligent, or abnormally dangerous conduct 1. Substantial: Offensive, inconvenient, or annoying to an average person in the community (not a nuisance to block access to sunlight!) 2. Unreasonable: Severity of injury > utility of Δ’s conduct B. Public nuisance is an unreasonable interference with a health, safety, moral right common to the general public, Suit typically brought by gov’t actor. Private party can bring action if he suffered unique damage

Answer 7

**A. Commercial appropriation:** Unauthorized (no permission or negligent in verifying) use of Π’s picture or name for Δ’s commercial purpose. Π need not be identified by name so long as clear that the ad is meant to depict that person **B. Intrusion into seclusion**: Δ intentionally interferes with Π’s zone of privacy in a manner offensive to a reasonable person (for example, eavesdropping, wiretapping, stalking) **C. Public disclosure of private true facts:** Disclosure of true facts that 1) would be highly offensive to a reasonable person and 2) is not newsworthy **D. Portrayal in a false light:** Publication of false information that would be highly offensive to a reasonable person

Answer 8

1. Vicarious liability of employer or supervisor 2. Wrongful institution of proceedings 3. Interference with contractual relations 4. Loss of consortium and services 5. Survival action 6. Wrongful death

Answer 9

Fallgruppen: a) Respondeat superior: If an employee is negligent within scope of employment, under employer’s direction, or while serving employer’s interest, then employer is vicariously liable for employee’s tortious acts - Frolic and detour: An employee making a minor detour from the employer’s business for own purposes is still acting within the scope of employment - Special relationships such as university-student may be within the scope AUSN. Intentional torts by employee are outside the scope, UNLESS authorized or furthering the business (e.g., bouncer, bill collector) b) Independent contractor (IC): Person who hires IC is not vicariously liable for negligence of IC UNLESS (1) IC is engaged in inherently dangerous activity (excavating) or (2) duty is non-delegable as a matter of public policy or safety Abgr. Employee vs. IC: IC if payer has right to control result of the work but not what or how it will be done Abgr. Negligent hiring/supervision: Employers may be liable for own negligence by hiring or supervising an employee or IC. This is not “vicarious liability” c) Joint venture (undertaking to carry out objectives that associates have equal voice to direct the enterprise): Act of any associate w/in the scope of the enterprise is vicariously liable against the rest d) Child: A parent is under a duty to exercise reasonable care to control his minor child as to prevent intentional harm or risk of harm to others, if the parent 1) knows or has reason to know that he can control his child and 2) knows or should know of the necessity and opportunity for exercising such control 1. Parents are **not** vicariously liable for their children’s tort, UNLESS the child committed a tort while acting as the agent for the parents 2. Negligent supervision/entrustment: Parents may be liable for own torts where they had a reason to know of any propensities of the child; they owe a duty to those who might be injured by the child

Answer 10

**2. Wronful institution of proceedings:** a) Malicious prosecution: Institution of criminal/civil proceedings against Π (former Δ) without probable cause, without proper purpose (malice), where Π prevailed on the merits, and Π suffered damages b) Abuse of process: Wrongful use of process for an ulterior purpose + act or threat against Π to accomplish purpose **3. Interference with contractual relations:** Δ knew of valid K between Π and 3P + acted with purpose of having K breached or made harder to perform + damages **4. Loss of consortium and services:** Π spouse may recover against Δ for injuring Π’s spouse and depriving the benefits of the spousal relationship, including the loss of companionship, comfort, society, and sexual relations **5. Survival action:** Cause of action that survives the death of a party, only applicable to injury to property and person, not to personal interests (e.g., defamation, privacy, malicious prosecution) which expire upon death **6. Wrongful death:** Actions based on wrongful death provide monetary relief for injury resulting to the spouse and next of kin (but not to creditors). Recovery is allowed to the extent that the deceased could have recovered in an action had he lived; e.g., decedent’s contributory negligence reduces wrongful death recovery in comparative negligence jx

Torts Flashcards

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