Torts Flashcards

Question

Privacy Tort - Public Disclosure of Private True Facts

Answer 1

Public disclosure of private info about P which would be objectionable to a reasonable person of ordinary sensibilities. Must have widespread dissemination.

Answer 2

All privacy torts require: 1. Causation 2. Damages - emotional distress and mental anguish are sufficient Defenses - consent or privilegesm, truth generally insufficient.

Answer 3

A prima facie case for fraud or deceit requires (1) misrepresentation of a material fact, (2) scienter, (3) intent to induce P to act/refrain from acting in reliance, (4) P actually relies (causation), (5) P's reliance was justifiable, and (6) P was damaged thereby.

Answer 4

A prima facie case for negligent misrepresentation requires (1) a misrepresentation by D in a business or professional capacity, (2) breach of duty toward a particular P, (3) causation, (4) justifiable reliance, and (5) damages.

Answer 5

A prima facie case for malicious prosecution requires (1) the institution of criminal proceedings against P, (2) termination in P's favor, (3) absence of probable cause for prior proceedings, (4) improper purpose, and (5) damages.

Answer 6

A prima facie case for Abuse of Process requires (1) wrongful use of proceedings for ulterior motive, (2) act or threat against P to accomplish that ulterior motive.

Answer 7

A prima facie case for interference with business relations requires P demonstrate (1) existence of a valid contractual relationship between P and 3rd party, (2) that D knew or had reason to know of that relationship, (3) intentional interference by D resulting in the breach of contract or termination of business , and (4) P was damaged thereby.

Answer 8

No amount of due care by D will relieve them of strict liability. Existence of an absolute duty on the part of D to make safe, breach of that duty, actual and proximate causation of P's injury, and damages to P's person or property.

Answer 9

Injuries caused by domestic animals - No strict liability, just negligence standard. Injuries caused by wild animals held in captivity - strict liability

Answer 10

Requires that (1) the activity involves risk of serious harm to persons or prop., (2) the activity be one that cannot be performed without risk of serious harm no matter how much care is take, and (3) the activity is not commonly engaged in in that community.

Answer 11

In a contributory negligence state, contributory negligence is no defense to strict liability if P failed to realize the danger or guard against it. It is a defense if P knew of the danger and his unreasonable conduct was the very caused of the ultrahazardous activity miscarrying. Assumption of risk is a good defense to SL

Answer 12

Products Liability refers to the liability of a supplied of a defective product to someone inured by that product. To hold a supplier/manufacturer liable under any products liability theory, P must show (1) a defect and (2) the existence of the defect when the product left D's control.

Answer 13

Manufacturing Defect - D is liable if P can show that the product failed to perform as safely as an ordinary consumer would expect. D must be able to anticipate reasonable misuse and warn against it. Design Defect - D is liable if P can show that D could have made the product safer without serious impact on the product's price or utility. Gov. Safety Standards - Any product which did not comply with gov. safety standards is presumed defective.

Answer 14

A prima facie case for products liability sounding in negligence requires P demonstrate (1) a duty of care D owed P, (2) breach of that duty by D, (3) actual and proximate cause, and (4) damages to P's person or property (no claim for pure economic loss). Breach is established by showing negligent conduct of D leasing to supplying the defective product. As concerns causation, an intermediary's negligent failure to discover a defect does not supersede manufacturer's negligence unless intermediary's conduct exceeds ordinary foreseeable negligence.

Answer 15

A prima facie case for products liability sounding in strict liability requires P demonstrate (1) a strict duty owed by a commercial supplied of a product, (2) breach of that duty, (3) actual and proximate cause, and (4) damages to P's person or prop. To demonstrate breach, P must show that the product was defective in a way that was unreasonably dangerous.

Answer 16

There are 2 warranties implied in every sale of goods: 1. Merchantability - whether the goods are of average acceptable quality and are generally fit for ordinary purpose for which goods are used. 2. Fitness for a Particular Purpose - when the seller knows or has reason to know the particular purpose for which the goods are to be used and that the buyer is relying on the seller's skill and judgment in selecting the goods for that purpose.

Answer 17

Express warranty - any affirmation or promise concerning goods that become part of the basis of the bargain. Misrepresentation of Fact - A seller is liable for misrepresentation concerning a product where (1) the statement was of a material fact concerning the quality or uses of goods (mere puffery is insufficient), and (2) the seller intended to induce reliance by the buyer in a particular transaction.

Answer 18

Private - A substantial unreasonable interference with another private individual's use or enjoyment of prop. that he actually possess or to which he has a right of immediate possession. Public - an act that unreasonably interferes with the health, safety, or prop. rights of the community

Answer 19

An employer will be vicariously liable for tortious acts committed by their employee if the act occurs within the scope of the employment relationship. Does not include acts which occurred during frolic (shirking employee duties) or detour (employment actions bookended by personal actions). Intentional torts are usually not within the scope of employment, unless it can in som way be seen as part of the persons job.

Answer 20

There is no vicarious liability for an independent contractor's tortious action, unless the contractor is engaged in abnormally dangerous activity.

Answer 21

Where 2 or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable. Contribution - both Ds must have a measurable degree of culpability for the tort. Indemnity - usually one party is much more responsible than the other.

Answer 22

A duty of care is owed to all foreseeable Plaintiffs. Two questions to be asked in establishing duty are: 1. Was the Plaintiff foreseeable? 2. If so, what was the applicable standard of care?

Answer 23

To be liable for negligence, D must fail to exercise such care as a reasonable person in his position would have exercised, his conduct must be a breach of the duty to prevent foreseeable risk of harm to anyone in P's position, and this breach must cause P's damages.

Answer 24

Cardozo Majority Rule - D owes a duty of care to P's in the foreseeable zone of danger (threat of physical danger). Andrews Minority Rule - D has a duty of care to everyone.

Answer 25

There is no duty to take steps to rescue or provide aid, except where such affirmative duty is established via (1) special relationship, (2) D's conduct creating the peril, (3) D' undertaking the action of P's benefit, (4) D's creating reliance, or (5) contract. Rescuers are foreseeable if rescued party (D) negligently put himself or a 3rd person in peril. As long as rescuer's behavior was not reckless, D is liable for rescuer's injuries caused by the rescue. Dram Shop Rule - Actions of a 3rd party which injure P are foreseeable by a business owner if (1) the served customer harms another person and (2) special relationship.

Answer 26

D owes a duty to act as a reasonably prudent person in same or similar situation (who has D's relevant physical characteristics), absent negligence per se or a special relationship.

Answer 27

A statute (including one the provide for criminal penalty) defines the standard if P is in the class of person the statute was designed to protect and injury is the type of injury the statute was designed to prevent. An unexcused violation of the statute constitutes negligence per se and a breach of duty.

Answer 28

Invitee: Someone who enters land open to the public with potential to confer economic benefit. The landowner owes a duty to the invitee to exercise reasonable care to prevent injuries by (1) inspecting the premises regularly and (2) making safe any dangerous conditions of the premises.

Answer 29

Licensee: Someone who enters land not open to public not to confer economic benefit (guest) The landowner owes a duty to the licensee to warn or make safe any known dangers.

Answer 30

Trespasser: Someone who enters the land without express or implied consent. The landowner owes an ANTICIPATED/KNOWN trespasser to warn or make safe any known dangers. artificial, highly dangerous conditions on the premises. The landowner owes no duty to an UNANTICIPATED/UNKNOWN trespasser.

Answer 31

A landowner has a duty to exercise ordinary care and avoid foreseeable risk of harm to children caused by artificial conditions on the property if (1) dangerous condition the owner is/should be aware of, (2) owner knows children frequent the vicinity, (3) condition likely to cause injury, (4) expense of remedying the danger is outweighed by the risk.

Answer 32

Landlords owe tenants a duty to exercise reasonable care to discover and repair known defects. Landlords are liable for common areas, negligent repairs, and known hidden defects.

Answer 33

A professional owes a duty to conduct themselves in accordance with the knowledge and skill of a member of the profession in food standing. Medical specialists are held to a national standard. Other professionals are held to a local standard. Custom or usage in a professional field may be evidence of a standard of care, but Courts can find entire industries to be negligent.

Answer 34

Duty is breached when D's conduct falls below the applicable standard of care owed to P. Can be determined by either: Hand Formula - Balance the burden of avoiding harm against the probability of harm and the magnitude of potential loss. Negligence per se Res ipsa loquitor - creates an inference of negligence where (1) the type of accident is one which would not normally occur in the absence of negligence, (2) the accident is attributable to D, and (3) P did not contribute to their own injury. (may be rebutted by D with evidence)

Answer 35

"But For": P must show it was more likely than not that, but for D's negligence, P would not have been injured. Substantial Factor (Multiple Causes): Each D's conduct alone would have been sufficient to bring about P's indivisible injury. Assume joint and several liability (P can recover damages from either or all Ds; D may sue another for contribution.) Alternative Causes (Multiple Acts): Where there are multiple acts, only one of which could have caused P's injury but which one is unknown, each D must show that his negligence is not the actual/legal cause.

Answer 36

D is liable for harmful results caused be his acts if they were foreseeable in any manner for any harm. D takes his P as he finds him (eggshell skull doctrine).

Answer 37

A superseding cause is an unforeseeable, intervening cause that breaks the chain of causation and becomes the proximate cause. The more intentional the intervening cause, the more likely it is superseding. BUT if D should have realized the risk, he may still be liable for intentional 3P acts

Answer 38

Subsequent medical malpractice, negligent rescuer, subsequent diseases caused by weakened condition, subsequent accident substantially caused by injury.

Answer 39

P is entitled to economic damages (medical expenses), noneconomic damages (pain, emotional distress), punitive damages (if D's conduct was reckless or malicious), and property damage. There is no recovery for pure economic harm except for NIED cases. Collateral Source: Damages are not reduced by benefits from other sources (insurance, workers comp.), but other D's can reduce. Duty to Mitigate: P has a duty to take reasonable steps to mitigate damages (seek treatment).

Answer 40

Pure Comparative Negligence - P's recovery is reduced by his fault. Modified Comparative Negligence - Bars recover if P is over 50% at fault. Contributory Negligence - Any fault by P bars his recovery. If D had last clear chance to prevent his injury, P can still recover.

Answer 41

Recovery may be reduced or barred if P knew the risk specific to D and voluntarily assumed that risk. Express: Clear written or oral release from negligence is a complete bar to recovery. Firefighter's Rule: if professional (including volunteer) rescuer is injured by risks inherent in occupation from D's negligence, recovery for negligence is barred. Avoidable Consequences: P fails to take reasonable steps to mitigate damages.