Torts Flashcards
How can a defendant rebutt a statutory prima facia case of negligence?
By showing (undisputed evidence) that compliance with the statute was beyond the defendant’s control.
Does slander per se require any pecuniary loss? What is slander per se?
No, slander per se does not require pecuniary loss.
Defamation is spoken (slander) and slander is slander per se when it falls into one of these categories: (1) criminal activity; (2) occupational misconduct; (3) sexual misconduct; or (4) loathsome disease.
When are punative damages available in torts?
Generally, only available in intentional tort cases where the defendants conduct is outrageous or malicious.
However, sometimes available in negligence cases if the defendants conduct is wanton and willful, reckless, or malicious.
What are the damages available for conversion?
The full value of the property at the time of the conversion.
What are the four types of invasion of privacy?
(1) Appropriation by the defendant of the plaintiff’s picture or name for a commercial advantage;
(2) Intrusion by the defendant upon the plaintiff’s affairs or seclusion;
(3) Publication by the defendant painting the plaintiff in false light; and
(4) Public disclosure by the defendant of private facts about the plaintiff.
When are defendants liable for the criminal actions of a third party?
When the criminal actions are a reasonably forseeable result a the time of negligence.
(Like a history of crime in the area.)
In a strict products liability case, could the defendant be liable even if it had no reason to anticipate that the product was dangerous?
Yes. Under strict liability, the defendant is liable simply because it is a commercial supplier of a product with a dangerous defect. Does not need reason to know or have no opportunity to inspect the product for defects.
What are the five theories of products liability claims?
(1) Intent
(2) Negligence
(3) Strict Liability
(4) Implied Warranties
(5) Express Warranties
What constitutes a defective warning on a product?
A warning is inadequate if it does not provide users with clear and complete warnings of dangers which may not be apparent.
What are the elements of strict liability (non-products)?
(1) The nature of the defendant’s activity imposes an absolute duty to make it safe;
(2) The dangerous aspect of the activity is the actual and proximate cause of the plaintiff’s injury; and
(3) The plaintiff suffered damage to person or property.
Can a defendant still be liable for conversion if they originally came into possession of the chattel legally?
Yes.
When is a landowner liable for nuisance?
Only when their invasion of another’s use and enjoyment is both substantial and unreasonable.
When does a false imprisonment plaintiff need to show actual injury?
Only when the plaintiff was unaware of confinement. Does not need to show injury if they are aware of the confinement.
Does strict liability apply to the performance of services?
No.
What is one of the exceptions for employment liability for independent contractors (not negligent hiring)?
If the contractor is performing abnormally dangerous work, the duty is non-delegable and triggers strict liability.
In general, are landowners and occupiers strictly liable for injuries to their business invitees?
No.
In a case where one defendant is negligent and the other is an intentional tortfeasor, will the negligent defendant be able to get indemnity from the tortfeasor?
Yes, for the full amount. Intentional tortfeasors are liable for ANY and ALL consequences stemming from their actions.
Is contributory negligence a defense to a strict products liability action?
No.
Does an injury need to be forseeable in order for a plaintiff to recover for an intentional tort (like battery)?
No, the defendant is liable for all consequences of the wrongful action even if they are unintended and unforeseen.
Is physical injury required for an intentional infliction of emotional distress claim? What is the prima facia case for IIED?
No.
(1) An act by the defendant amounting to extreme or outrageous conduct;
(2) An intent by the defendant to cause the plaintiff to suffer severe emotional distress, or a recklessness by the defendant as to the effect of their conduct;
(3) Causation; and
(4) Damages in the form of severe emotional distress.
