TORTS Flashcards
Who is strictly liable for injuries caused by abnormally hazardous activities?
The person engaging in the activity, unless the plaintiff knowingly and voluntarily assumed the risk.
What are the elements of negligence?
(1) Duty;
(2) Breach of duty;
(3) Causation (actual and proximate); and
(4) Damages.
What is a manufacturing flaw under product liability?
A product manufactured differently than intended, causing injury, makes the manufacturer strictly liable.
What intent is required to establish false imprisonment?
Intending to confine a person within certain boundaries, resulting in actual or perceived confinement
Under what circumstances can a bystander recover for intentional infliction of emotional distress?
When witnessing an intentional tort causing physical injury to a close family member or associate, and the defendant knows the bystander is present.
What is the “eggshell plaintiff rule”?
A defendant is liable for the full extent of a plaintiff’s injuries, even if unforeseeable, caused by the defendant’s actions
What must public figures prove in a defamation claim?
That the false statement was made with actual malice (knowledge of falsity or reckless disregard for truth).
What is required for a disclaimer of risk to be valid?
(1) Plaintiff is aware of its terms;
(2) the injury is within the risks disclaimed; and
(3) it does not violate public policy.
What constitutes conversion versus trespass to chattels?
Conversion involves severe interference justifying full compensation for the property, while trespass to chattels involves minor interference requiring actual damages.
What is required for liability in a negligence case when harm is unforeseeable?
The defendant is still liable under the “eggshell plaintiff rule.”
When is a defendant not liable for torts committed by an independent contractor?
A defendant is not liable if they did not control the contractor’s activities beyond directing where the work should be performed.
When is an employer not vicariously liable for an employee’s tortious acts?
When the act occurs outside the scope of employment, such as moonlighting or personal activities.
Under what circumstances is an employer liable for an employee’s tortious acts?
If the acts are committed within the scope of employment and cause injuries or property damage to a third party.
What is an injurious falsehood?
A false statement made to another, intended to cause economic harm to the plaintiff by discouraging business relations.
How does group size affect liability for defamatory statements?
A defamatory statement about a large group does not create liability for individual members unless it specifically identifies a particular individual.
What determines the apportionment of damages under comparative negligence statutes?
Damages are apportioned based on the respective degrees of fault of the parties involved.
What is the legal effect of negligent entrustment by an employee?
The employer may be held liable for the resulting harm through imputed negligence.
When can someone be held liable for trespass to land, even without causing harm to another’s legally protected interest?
A person is liable for trespass to land if they:
- Intentionally enter land in another’s possession or cause a thing or third person to do so.
- Remain on the land.
- Fail to remove a thing they are under a duty to remove.
In the case of the wind causing a kite to land on another’s property, the owner of the kite has a duty to remove it upon request. Failure to do so makes them liable for trespass to land.
When is a defamatory statement about a group “of or concerning” a particular person?
A statement about a group can be “of or concerning” a specific person only if:
- The group is small enough for the statement to reasonably refer to the plaintiff.
- Circumstances suggest a reference to a particular member of the group.
If the group is large (e.g., 250 judges), no single member has a cause of action for slander. This is a strong defense in such cases.
📌 Is the cable covered by the warranty of fitness for a particular purpose, and why or why not?
✅ No, the cable is not covered by the warranty of fitness for a particular purpose:
The warranty of fitness for a particular purpose ensures that goods are fit for the specific purpose the buyer intends.
The warranty applies when the seller knows the buyer’s particular purpose and the buyer is relying on the seller’s skill or judgment to select appropriate goods.
✅ Why the Cable is Not Covered:
The store knew the particular purpose for which the homeowner needed the cable and that the homeowner was relying on the clerk’s expertise.
However, the store negated the warranty by providing a written letter stating it was not responsible for goods that did not fit the buyer’s purpose.
The letter was conspicuous and understandable by a reasonable buyer, thus negating the warranty.
What is the likely outcome if a young man parks his truck next to a homeowner’s house, and the homeowner sues for damages caused by a collision, despite the truck being parked in an area restricted by statute?
Judgment for the young man, because his parking his truck next to the homeowner’s home was not a negligent act.
The statute prohibiting vehicles over a certain weight on certain roads aims to prevent damage to roadways, not to protect against the type of injury that occurred in this case. Parking the truck next to the homeowner’s house did not foreseeably increase the risk of a collision, and the young man is entitled to rely on the assumption that other drivers will operate their vehicles prudently. Since his act was not negligent, the homeowner has no basis to recover damages.
If the owner of the parked car sues the real estate agent for the damage caused by the collision, what is the most likely outcome?
The real estate agent will not prevail, because she is the owner of the car.
In this case, the son, who was driving the car, was performing a task for his mother (the real estate agent) when the accident occurred. Since the car was being used for a “family purpose” (running an errand for the mother), the real estate agent, as the car owner, would be vicariously liable for the son’s negligence.
What did the plumber’s refusal to pay the carpenter for the armoire upon delivery constitute?
A total breach, if the carpenter had properly or substantially completed the armoire.
In this case, the plumber’s refusal to pay was based on a minor flaw in the armoire’s finish, which was not a material breach by the carpenter. Since the plumber’s non-payment was an unjustified suspension of her performance, it constitutes a total breach of the contract.
What is the likely result if a man is injured by a dog while attempting to rescue a boy from the yard of a property owner who has warned of the dog’s dangerous nature?
The likely result is a judgment for the man, because the owner is strictly liable for injuries caused by her animal. Landowners are strictly liable for injuries caused by vicious watchdogs, even to unknown trespassers. In this case, the man is not a trespasser because he was on the property to rescue the boy, a privileged act by necessity. Therefore, the owner’s liability applies.
Will the collector prevail in a strict products liability suit against the lamp manufacturer after the lamp exploded when misused?
No, the collector will not prevail, because she misused the lamp. Misuse is a defense to a strict products liability action, and the use of a stove to heat the lava lamp is not a foreseeable or intended use. Therefore, the manufacturer can defend against the claim by showing that the collector’s actions were not within the intended use of the product.
Under what circumstances can a bartender be held liable for a boy’s injury in a negligence claim?
A bartender can be held liable for a boy’s injury if the bartender negligently created an apparent risk of injury to the boy. In a negligence claim, the plaintiffs (the boy’s parents) must prove that the bartender acted negligently and that this negligence caused the boy’s injury. If there was no negligence, the court does not need to consider causation, and the bartender would not be held liable.
A professor recently moved to a new home in a distant state. She decided to explore her new neighborhood on foot.
Several blocks from her house, the professor saw what she believed was a footpath across public land. In actuality, it was a
footpath that led onto private property. Over the years, the landowner had been annoyed by the number of people who used the
footpath to enter onto his land thinking it was public property. For that reason he set up a device that contained a sensor that
was triggered by movement on the footpath. When the sensor was activated, the device would emit a loud noise that sounded
like a gunshot. The landowner’s intent was to frighten anyone walking on the footpath into thinking they were being shot at so
they would not return. When the professor walked along the footpath, she activated the sensor and the loud noise was
activated. The professor was momentarily startled by the noise and stepped back, tripping over a tree root. The professor fell to
the ground, suffering several bruises.
Can the professor recover from the landowner for battery?
The correct answer is:Yes, because the landowner intended to frighten anyone walking on the path.
Discussion of correct answer:The landowner intended to place anyone walking along the footpath in reasonable
apprehension of an imminent harmful contact. This is sufficient intent to support liability for assault. Generally, if a defendant
intends to commit assault, battery, false imprisonment, trespass to land or to chattels, and inadvertently commits a different
one of these other torts, his intent will “transfer” to support the tort appropriate for the result achieved. Therefore, because of
transferred intent, the landowner is considered to have intentionally caused a harmful contact, which makes the landowner
liable for battery.
A strict mother routinely sent her 6-year-old son to his bedroom whenever she believed he needed a “time-out.” As a result,
the rambunctious and often disobedient son frequently spent up to four hours per day in his room.
One day, the mother had a business appointment in the city and hired a babysitter to watch her son. After only an hour, the boy
began to misbehave to the point where the babysitter decided that he needed a time-out. The babysitter locked the boy in his
bedroom, where he remained until the mother returned several hours later. Playing happily in his room, the boy was unaware
that his bedroom door was locked.
Will the babysitter face liability for confining the boy?
The correct answer is:No, because the babysitter believed that the boy needed to be confined.
Discussion of correct answer:A nonparent who has been legally given or has voluntarily assumed the control, training, or
education of a child is privileged to apply such reasonable force or to impose such reasonable confinement as she
reasonably believes to be necessary. A parent may, however, restrict the privilege of one to whom she has entrusted the
child. Here, the babysitter was hired to babysit the boy, and there is no indication that the mother restricted the babysitter’s
ability to confine the boy as to a time out. As long as the babysitter reasonably believed that the boy’s confinement was
necessary, and so long as she used reasonable force to impose such confinement, the babysitter’s actions will be privileged.
Given that the facts indicate the babysitter believed that the boy needed to be confined, she will most likely be successful in
asserting that her actions were privileged.
With permission of his single mother, a 10-year-old boy drove his bicycle along the side of a busy highway to his
grandmother’s house. It started to rain, and a passing driver negligently skidded into the boy, killing him.
If the applicable jurisdiction has adopted the rule of contributory negligence and the mother brings a suit against the driver for
wrongful death, what is the likely result?
The correct answer is:She can collect only if neither she nor the boy were negligent.
Discussion of correct answer:In jurisdictions that apply contributory negligence, either the decedent’s negligence or the
plaintiff’s negligence could prevent a recovery in an action for wrongful death. In this question, negligence by either the
mother or the boy would bar all recovery.
A retailer sells kitchen appliances. A large corporation (which is the manufacturer) has begun selling a new blender. The retailer has never sold products from this corporation before, but would like to begin carrying this new blender. The corporation has a reputation for producing high-quality goods. When the first shipment of blenders arrives at the retailer’s store from the corporation, the employees eagerly unpack them and place them right on the shelves. Within a few hours, all of the blenders have been sold. A woman buys one of the blenders and uses it that evening to make smoothies for her friends. However, the
blender malfunctions when the blade, which is very loose, flies off and hits the woman in the face. The woman now seeks to
sue the retailer for products liability under a negligence theory, because the retailer breached its duty of care owed to the
woman. The retailer asserts that it cannot be held liable under this theory because it did not breach its duty of care to the
woman.
Who is correct?
The correct answer is:The retailer, because failure to inspect packaged goods for defects is not a breach of duty if the
goods come from a reputable manufacturer or distributor.
Discussion of correct answer:Regarding a products liability case based on a negligence theory, in general, a failure to
inspect packaged goods for defects is not a breach of duty if they come from a reputable manufacturer or distributor. If the
goods are manufactured or otherwise supplied by a previously unknown or questionable source, defendant’s unreasonable
failure to inspect is a breach of duty. It would, however, probably be a breach of duty not to inspect a particular product as to
which defendant had received or become aware of customer complaints. In this case, the retailer purchased the blenders
from a manufacturer with a reputation for producing high-quality goods. Therefore, the retailer’s failure to inspect the
packaged blenders is not a breach of duty, and this answer choice is correct. Note that the retailer could be liable on a strict
liability theory because it is in the distribution chain, even if it is without fault.
A man and a woman were investment bankers who had known of each other for some time. They went for a business lunch at a trendy little place packed with other financial professionals. The woman said, “I’ve heard so many good things about you. What would it take to get you to come work at my office?” The man yelled, “I would never work with you! You’re an unethical lowlife.” Several other
financial professionals who were eating lunch overheard his reply.
Will the female investment banker prevail in a defamation suit against the male investment banker?
Yes, because it was reasonably foreseeable that someone would overhear the statement.
Discussion of correct answer:To prevail in a defamation action, a plaintiff must establish that a defendant published defamatory
material concerning that plaintiff, which caused damage. The message must be communicated to a third person. While the
defamatory message must be understood by the person who receives it, the recipient need not believe the defamatory message or
have a rational reaction. If it is reasonably foreseeable that a third party might overhear a defamatory message, and one does so,
there is sufficient publication to bring suit. Given that the male investment banker yelled out his defamatory remarks at a crowded
lunch spot, it was reasonably foreseeable that his statement might be overheard. Therefore, there was publication, and the female
investment banker is likely to prevail.
At 11:30 p.m. a police sergeant of the city police stopped a driver for speeding on a major city thoroughfare. The driver
appeared to the sergeant to be intoxicated but passed all the normal field sobriety tests. In spite of this, the sergeant insisted
that the driver let her male passenger drive the vehicle. The sergeant did not ask the passenger to take any sobriety tests, nor
did he take any steps to ensure the passenger was a licensed driver. After issuing the speeding ticket to the driver, the sergeant
permitted the couple to depart with the passenger at the wheel.
Approximately 10 minutes later, the vehicle driven by the passenger crossed the centerline of the highway and smashed head
on into a car driven by a young man. Both the passenger and the young man were killed in the collision. Blood alcohol tests
taken after the accident showed the driver’s blood alcohol level was .05, within legal limits, while the passenger’s blood alcohol
level was .15, presumptively intoxicated in that jurisdiction. Moreover, the passenger’s driver’s license had been suspended for
a drunken driving conviction.
If the young man’s heirs sue the police sergeant and the police department and sovereign immunity does not apply, what is the
probable outcome?
The young man will prevail, because the sergeant insisted that the passenger drive.
Discussion of correct answer:The sergeant owed the young man a duty of reasonable care if the sergeant’s acts placed the
young man at risk of greater peril than he would have otherwise faced. By insisting that the passenger drive, the sergeant
placed an unlicensed, highly intoxicated individual at the wheel of a potentially deadly instrumentality. The sergeant replaced
the driver, who had passed the field sobriety tests, with the passenger, who had not taken them. This increase in risk
imposed a duty of due care on the sergeant. Although the question does not address the further issue of breach, the
sergeant’s breach could be shown by the fact that he changed the risks without taking reasonable steps to determine what
those new risks would be.
A fertilizer plant was producing lawn-care treatments for residential use. Unfortunately, due to an errant setting on the assembly
line, several chemicals were being mixed into bags that should have remained separate. Two weeks later, each of those bags of
fertilizer began spontaneously combusting, and the purchasers of those bags brought a strict liability lawsuit against the fertilizer
company.
Which of the following, if established, would provide the fertilizer company the best defense?
The correct answer is:The harm the buyers suffered would not have resulted but for the abnormal fragility of the buyers.
Discussion of correct answer:Strict liability may be imposed on one who carries on an abnormally dangerous or ultrahazardous
activity. The entity will be liable for harm resulting from the activity even if he exercised the utmost care to prevent the harm. The
plaintiff must prove, however, that the defendant’s abnormally dangerous activity was both an actual and proximate cause of the
plaintiff’s harm. This means the defendant will be strictly liable only if the harm results from the risk that makes the defendant’s
activity abnormally dangerous. Strict liability will not be imposed if the harm occurred only because of the abnormal sensitivities of
the plaintiff’s activities. Thus, this answer choice is correct.
A reality TV star wrote about her new co-star: “I guess they will let anyone on the show, even this stupid jerk.” The co-star, an
intelligent and well-educated woman, claims that the reality star defamed her.
Is the co-star correct?
The correct answer is: No, because the message is not defamatory.
Discussion of correct answer: A message is defamatory if it lowers a plaintiff in the esteem of the community or discourages others
from associating with the plaintiff. Only statements of fact are generally actionable as defamation; statements of opinion are not
defamatory. The reality star’s tweet is not defamatory because it is not detailed and specific and cannot reasonably be interpreted
as a statement of fact. Test Tip: Even if a statement is offensive, it will not be defamation if it is merely an opinion. Always focus on
whether all the elements of a tort have been met. If not, make the defendant not guilty even when the defendant is unsympathetic.
Remember sometimes grandma loses and sometimes the bad person wins
Citizens of a state were horrified by the disappearance of a young nurse who had been vacationing in the state and vanished while walking along a popular waterway frequented by residents and visitors alike. One week after her disappearance, friends conducting their own search located her remains in a shallow grave several miles from where the woman was last seen. At the time the friends were searching, a local news team was following and filming them for a news update planned for the six o’clock broadcast. The day after the woman’s body was found, the state’s largest circulation newspaper published a still photograph of the woman’s remains taken from the film shot by the broadcast news team. In a front-page article below the photograph, it was reported that the woman had been raped and described her cause of death. The woman’s mother and only surviving family member was appalled at the insensitivity of the newspaper and brought suit for invasion of privacy against the newspaper for its publication of the picture.
If the newspaper raises the First Amendment as a defense, the court, in examining the merits of the case, will apply what standard?
Citizens of a state were horrified by the disappearance of a young nurse who had been vacationing in the state and vanished while walking along a popular waterway frequented by residents and visitors alike. One week after her disappearance, friends conducting their own search located her remains in a shallow grave several miles from where the woman was last seen. At the time the friends were searching, a local news team was following and filming them for a news update planned for the six o’clock broadcast. The day after the woman’s body was found, the state’s largest circulation newspaper published a still photograph of the woman’s remains taken from the film shot by the broadcast news team. In a front-page article below the photograph, it was reported that the woman had been raped and described her cause of death. The woman’s mother and only surviving family member was appalled at the insensitivity of the newspaper and brought suit for invasion of privacy against the newspaper for its publication of the picture.
If the newspaper raises the First Amendment as a defense, the court, in examining the merits of the case, will apply what standard?
A government official is being investigated for allegations of expense fraud and retains a lawyer to defend the case. A newspaper runs a story which alleges that the lawyer has taken illegal bribes in the past. The lawyer produces evidence demonstrating that she has not taken bribes, and sues the newspaper for libel. At trial, it is revealed that the newspaper reporters made a negligent mistake in accusing the lawyer. Before the case goes to the jury, the lawyer moves for summary judgment, over the First Amendment objections of the newspaper.
Should the motion be granted?
The correct answer is:Yes, because the First Amendment does not shield the press from liability when it negligently defames non-public figures.
Discussion of correct answer:In this case, the lawyer is not a public figure or public official, so therefore does not need to prove actual malice. Proving negligent defamation suffices to hold magazine liable [Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)].
