Torts

Question 1

Intentional Tort Elements

Answer 1

1. voluntary act
2. sufficient intent
3. causation

Question 2

Voluntary Act

(Intentional Tort)

Answer 2

Defendant must have the state of mind that directed the physical movement

• not voluntary if physically moved by someone else

Question 3

Intent

(Intentional Tort)

Answer 3

Defendant acts

• with the purpose of causing the consequence, OR
• knowing the consequence is substantially certain

Need not intend the particular harm, merely the tortious act

• children and mentally incompetent persons can form sufficient intent

Question 4

Transferred Intent

Answer 4

Sufficient intent exists even if a person

• commits a different intentional tort against the same person
• commits the same intentional tort against a different person
• commits a different intentional tort against a different person

Applies in cases of

• battery
• assault
• false imprisonment
• trespass
• trespass to chattels

No transferred intent for intentional inflication of emotional distress

Question 5

Causation

(Intentional Tort)

Answer 5

Defendant’s conduct was a substantial factor in creating the harm

Question 6

Battery

Answer 6

Defendant causes a harmful or offensive contact with the person of another and acts with the intent to cause that contact OR the apprehension of that contact. Plaintiff need not be aware of the contact.

• harmful: causes injury, physical impairment, pain, or illness
• offensive: a reasonable person would find the contact offensive (or where the defendant is aware that the victim is hypersensitive)
• person: the person or anything connected

Question 7

Battery - Damages

Answer 7

Defendant is liable for all damages, even if the extent is unforeseen

• nominal damages: no proof of harm needed
• actual damages: even if beyond extent foreseeable
  
  • eggshell plaintiff rule
• punitive damages: if D acted with malice or outrageously (some jurisdictions)

Question 8

Assault

Answer 8

Plaintiff’s reasonable apprehension of an imminent harmful or offensive bodily contact caused by the defendant.

• intent: to cause either apprehension or actual contact
• apprehension: must be aware of defendant’s act
  
  • need not be afraid, merely apprehend
• imminent: without significant delay
  
  • threats of future harm not sufficient
  • mere words do not constitute assault unless couple with circumstances that indicate imminent threat

Question 9

Assault - Damages

Answer 9

• nominal damages: no proof of actual damages required
• actual damages: including physical harm flowing from the imminent apprehension
  
  • example: heart attack

Question 10

Intentional Infliction of Emotional Distress (IIED)

Answer 10

Intentional or reckless extreme or outrageous conduct that causes severe emotional distress.

• intent: intent to cause severe emotional distress or recklessness as to risk of causing such
  
  • no transferred intent!
• extreme or outrageous: exceeds the limits of common decency so as to be intolerable to society
  
  • mere insults, indignities, or threats not enough
• severe: beyond what a reasonable person can endure

Question 11

IIED - Proof

Answer 11

Courts are reluctant to find IIED. More likely to find where:

• defendant is in position of authority or influence over plaintiff
• plaintiff is a member of a group that has heightened sensitivity that defendant knows of

Question 12

IIED - 3rd Parties

Answer 12

IIED may be found even where conduct is directed at a 3rd party rather than the plaintiff

If the conduct is directed at a member of the victim’s immediate family, the victim is present at the time of the conduct, and the defendant is aware of the victim’s presence, defendant may be liable for IIED.

If the victim is merely a bystander, the defendant is aware of the victim’s presence, and the distress results in bodily injury, then the dendandant may be liable for IIED.

Question 13

IIED - Damages

Answer 13

• May get damages even if no physical injury results, except where where a mere bystander claims IIED for
• typically merits the highest amount of punitive damages

Question 14

False Imprisonment

Answer 14

Defendant acts with intent to confine or restrain the victim within boundaries fixed by defendant and the victim is aware of the confinement OR harmed by it.

• acts: use of physical barriers, force, threats, invalid use of legal authority, duress, or failure to provide safe means of escape
• intent: purpose or substantial certainty
  
  • does not include negligence
• confine: victim’s freedom of movement limited
  
  • may be large area
  • need not be stationary

Question 15

False Imprisonment - Damages

Answer 15

• nominal damages: available if victim was aware of the confinement at the time
• actual damages: available where plaintiff aware of or harmed by confinement

Question 16

Consent

(Defenses to Intentional Torts)

Answer 16

Plaintiff, by words or actions, manifests a willingness to submit to the conduct.

• conduct must not exceed the scope of the consent
• plaintiff must have capacity to consent
  
  • youth, intoxication may invalidate
• consent by mistake is valid unless defendant caused the mistake or knew of it and took advantage
• consent by fraud is invalid if it goes to an essential matter
• consent by **duress **is invalid
  
  • does not include economic duress
    *

Question 17

Implied Consent

(Defenses to Intentional Torts)

Answer 17

Implied consent exists where plaintiff

• is silent where a reasonable person would object
• enters into circumstances that indirectly signals willingness to endure certain conduct
  
  • athletic competitions
    
    • conduct that exceeds the normal scope of the sport exceeds consent

Question 18

Self-Defense

(Defenses to Intentional Torts)

Answer 18

A person may use reasonably proportionate force to defend against an offensive or harmful contact.

• reasonable mistake does not invalidate defense
• most courts require retreat prior to deadly force
  
  • some courts don’t require retreat in home
  • some jurisdictions have “stand your ground” statutes if in a place where legally entitled to be
• initial agressor not entitled to self-defense
• defender not liable to bystanders for accidental injuries

Question 19

Defense of Others

(Defenses to Intentional Torts)

Answer 19

May use reasonable force to defend another if reasonably believe that the other would be entitled to use self-defense

Question 20

Defense of Property

(Defenses to Intentional Torts)

Answer 20

May be used where one reasonably believes it is necessary to prevent tortious harm to personal property or recapture personal property

• may not use deadly force, including mechanical
• only peaceful means may be used to reclaim property that was (originally) lawfully taken
• may not use force to reclaim real property (modern rule; traditionally could)

Question 21

Parental Discipline

(Defenses to Intentional Torts)

Answer 21

Parents may use reasonable force or impose reasonable confinement as necessary to discipline their child

• age, gravity of behavior determine reasonableness
• may delegate to teacher, caregiver

Question 22

Citizen Arrest

(Defenses to Intentional Torts)

Answer 22

Private citizens are permitted to make an arrest for a felony where

• a felony has been committed
  
  • mistake as to commission invalidates defense
• the arresting citizen has reasonable grounds to suspect the person being arrested has committed the felony
  
  • reasonable mistake as to identity of felon does not invalidate defense

Question 23

Police Arrest

(Defenses to Intentional Torts)

Answer 23

An officer may make an arrest where reasonably believes a felony has been committed.

• reasonable mistake as to commission or identity does not invalidate defense

An arrest may only be made for a misdemeanor if there has been a breach of the peace

Question 24

Trespass to Chattels

Answer 24

An intentional interference with the plaintiff’s rights to chattels either by dispossessing plaintiff OR using or intermeddling with the plaintiff’s use of the chattels

• intentional: D need intend only the act, not the interference
  
  • mistake not a defense

Question 25

Trespass to Chattels - Damages

Answer 25

• Disposession: may recover actual damages caused and for loss of use
• Use or Intermeddling: may only recover actual damages, measured by
  
  • including diminution in value, or
  • the cost of repair, or
  • replacement value

Question 26

Conversion

Answer 26

An intentional act depriving plaintiff of possession of chattel OR intefering with chattel in a manner so serious as to deprive the plaintiff entirely of the use of the chattel

• intentional: intent to commit the act constituting the tort
  
  • mistake is not a defense
• interference: exercise of dominion or control over chattel inconsistent with plaintiff’s rights, beyond trespass
  
  • duration/extent of the interference
  • intent to assert right inconsistent
  • defendant’s good faith
  • expense or inconvenience to plaintiff
  • extent of harm to chattel

Question 27

Conversion - Damages

Answer 27

Plaintiff may recover:

• full value of the chattel at the time of conversion, OR
• replevin
  
  • if defendant originally acquired property lawfully, must request its return before suing

Question 28

Trespass to Land

Answer 28

An intentional physical invasion of another’s land

• intent: need only have intent for the movement
  
  • mistake of fact or law not a defense
• physical invasion: defendant’s self or a physical object
  
  • includes failure to leave when lawful right has expired

Question 29

Trespass to Land - Damages

Answer 29

No proof of actual damages required; may get nominative damages

Question 30

Necessity

(Defense to Trespass)

Answer 30

Available to a person who enters land or interferes with chattels of another in order to prevent in injury or another severe harm

• private necessity: an incomplete privilege; plaintiff must pay for actual damages
• public necessity: where necessary to protect a large number of people from public calamities, not liable for any damages to the property

Question 31

Nuisance

Answer 31

An activity that substantially and unreasonably interferes with another’s use and enjoyment of land

• activity: may be intentional, reckless, or negligent
• unreasonable: where intentional, more than plaintiff should have to bear (vague)
  
  • negligence standard for unintentional conduct
  • blocking sunlight is not a nuisance
    
    • exception: spite fence
  • mere decline in property value is not enough - must be substantial and unreasonable

Question 32

Nuisance - Defenses

Answer 32

• assumption of the risk or comparative negligence (if conduct is negligent)
• compliance with state or local regulation (partial defense - constitutes evidence of reasonableness)
• coming to the nuisance - not a defense but may be a factor

Question 33

Public Nuisance

Answer 33

Plaintiff must prove:

• an unreasonable interference with a right common to the general public
• special harm to the plaintiff different from the public

Question 34

Nuisance - Remedies

Answer 34

• injunction: typically where value of the activity is not great compared to the harm created
• damages: usual remedy for harm
  
  • temporary or permanent
• abatement: a person may enter another’s land to abate nuisance so long as notice has been given and defendant has refused to act
  
  • proportionate reasonable force
  • only public agency/authority may abate public nuisance

Question 35

Negligence

Answer 35

Failure to exercise the care that a reasonable person in the situation would exercise constituting a breach of the duty to prevent foreseeable risk of harm to others, causing the plaintiff’s harm

• what would a reasonably prudent person do under the circumstaces?

Question 36

Negligence - Duty

Answer 36

A legal duty exists to all foreseeable persons who may be injured by the defendant’s failure to follow a reasonable standard of care

• no duty to act affirmatively unless
  
  • rescuing - must act with care once begin
  • where placed victim in danger
  • in exercise of authority or control
  • where a special relationship exists (reliance)
• rescuers of victims are foreseeable plaintiffs
  
  • some emergency personnel are exempted (firefighters’ rule)

Question 37

Negligence - Standard of Care (Adults)

Answer 37

What a reasonably prudent person would do?

• cost/benefit analyses
  
  • cost, ease, efficiency of precautions (burden)
  • likelihood and severity of harm (risk)
• custom is relevant evidence - not complete
• defendant held to standard of average mental ability and knowledge
  
  • intoxication does not change standard unless involuntary
• particular physical characteristics are taken into account as part of circumstances

Question 38

Negligence - Standard of Care (Child)

Answer 38

What would a reasonably prudent child of that age/maturity do?

• exception: children engaged in adult activities held to adult standard

Question 39

Negligence - Professionals’ Standard of Care

Answer 39

Duty to act with same knowledge and skill of another practitioner in the same context or community.

• specialists may be held to a higher standard

Question 40

Negligence - Doctors’ Standard of Care

Answer 40

Traditional rule: the standard in the “same or similar locale”

Modern trend: (national) professionally established standard

Also duty to procure informed consent

Question 41

Informed Consent

Answer 41

Informed consent exists where doctor explains risks. Failure to obtain informed consent constitutes medical malpractice.

Exceptions:

• commonly known risks
• patient unconscious
• patient waives/refuses information
• patient is incompetent
• patient would be harmed by disclosure

Question 42

Negligence Per Se

Answer 42

Negligence per se may exist where a criminal law or regulatory statute imposes a particuar duty and

• plaintiff is in the class of people intended to be protected
• the harm is the type that the statute tries to avoid
• the harm was caused by a violation of the statute

Question 43

Negligence Per Se - Defenses

Answer 43

• Compliance was impossible
• An emergency justified violation
  
  • Defendant must show that compliance would have been more dangerous that the violation
• Violation by plaintiff (contributory or comparative negligence)

Question 44

Negligence - Common Carrier/Inn Keeper Standard of Care

Answer 44

Traditional Rule: highest duty of care consistent with practical operation of the business

Majority Rule: both have duty to act affirmatively or protect based on special relationship with passengers or guests, but

• common carriers held to higher standard
• inn keepers not held to higher standard (ordinary negligence standard)

Question 45

Negligence - Automobile Drivers’ Standard of Care

Answer 45

Modern trend: The ordinary standard applies to non-commercial automobile drivers, unless a

**Guest statute jurisdictions: **Drivers are only liable to guests and friends in the car for recklessness, gross negligence, or wonton/wilfull misconduct.

Question 46

Negligence - Standard of Care towards Trespassors

Answer 46

Traditional: Duty to refrain from wilfull or reckless misconduct or harm

• duty to warn **anticipated **or discovered trespassors of hidden dangers
  
  • artificial conditions
  • natural conditions that cause risk of death

Modern trend: duty of care owed to all, depending on circumstances

** Permitted trespassors may become licensees - different duty of care

Question 47

Negligence - Standard of Care towards Licensees

Answer 47

Licensee: a social guest or other who enters the land with express of implied permission.

Traditional rule: duty to either correct or warn licensee of concealed dangers

• no duty to inspect

Modern rule: due care depending on circumstances

Question 48

Attractive Nuisance

Answer 48

Land possessors may be liable to trespassor children if:

1. an artificial condition exists where the owner knows/has reason to know children are likely to trespass,
   
   • ​e.g., not ​restricted access retirement homes
2. he knows/has reason to know that the condition poses an unreasonable risk of death or serious bodily harm,
3. the children, due to youth, do not discover or cannot appreciate the danger,
   
   • ​​might apply even where children can read warnings
4. utility of maintaining the condition is slight compared to the risk, and
5. the land possessor fails to exercise reasonable care

Question 49

Negligence - Standard of Care Towards Invitees

Answer 49

Invitees: persons who enter property for owner’s purpose or a mutual purpose (customers)

Traditional Rule: **non-delegable **duty of reasonable care

*** Not liable for assaults of one customer on another customer

Question 50

Negligence - Landlord/Tenant Standard of Care

Answer 50

The landlord is liable for:

• injuries in common areas
• injuries from hidden dangers that the landlord did not warn the tenant of
• injuries on premises leased for public use
• injuries from hazards the landlord has agreed to repair

Tenant is liable for injuries arising from conditions withing his own control

Question 51

Negligence - Property Owner Standard of Care

Answer 51

Property possessor must exercise reasonable care with regard to off-premises persons when he is conducting activities on-premises.

• generally not liable for injuries resulting from natural conditions
  
  • exception: trees in urban settings
• duty to prevent unreasonable risk of harm from articificial conditions

Question 52

Negligence - Real Estate Sellers’ Standard of Care

Answer 52

Sellers of real property have a duty to disclose to buyers concealed and unreasonably dangerous conditions that are known to the seller.

• duty continues until the buyer has a reasonable opportunity to discover and remedy the defect

Question 53

Res Ipsa Loquitor

Answer 53

Direct evidence is not necessary to prove negligence; where the harm speaks for itself, circumstantial evidence alone is enough for the jury to infer negligence. Must establish:

• an accident of the kind that usually does not occur without negligence
• caused by agent or instrumentality within defendant’s exclusive control
• not due to plaintiff’s fault

Medical malpractice: extended res ipsa where all defendants are jointly and severally liable unless one can exhonerate himself

Question 54

Negligence - Cause-In-Fact

Answer 54

Plaintiff must show that the injury would not have occurred but-for defendant’s negligence.

• multiple contributing tortfeasors are jointly and severally liable
• tortfeasors acting in concert are jointly and severally liable
• alternative tortfeasors, where few, are jointly and severally liable unless one can prove the fault of the other/disprove his own fault (burden shift)
• where lost chance of recovery, if original chance was at least 50%, tortfeasor is liable for percentage of damages equal to likelihood of responsibility

Question 55

Negligence - Proximate Cause (3rd Restatement)

Answer 55

The scope of defendant’s liability limited to those harms resulting from risk that made the conduct tortious.

• is this the kind of harm that makes the conduct negligent?

Question 56

Negligence - Proximate Cause (Andrews’ Factors to consider in deciding proximate cause)

Answer 56

• is there a natural and continuous link between the cause and effect?
• was it a substantial factor?
• was there a direct connection without too many intervening causes?
• was the cause likely to produce the effect?
• could the defendant have foressen the harm?
• was the cause too remote in time?

Question 57

Negligence - Superseding Causes

(Proximate Cause)

Answer 57

An intervening cause that breaks the chain of causation.

• both the intervening cause and the harm must be unforeseeable [?]
• conduct of a 3rd party may (some courts)
  
  • if the intervening negligent or criminal conduct is foreseeable, does not supersede

Question 58

Negligence - Intervening Cause

(Proximate Cause)

Answer 58

A factual cause that contributes to the harm.

Question 59

Negligence - Damages

Answer 59

Plaintiff must prove actual harm to persons or property in order to recover, and must take steps to mitigate damages.

• nominal damages: not available
• actual damages: may not recover merely for economic harm, but if personal or property injury is proven, may recover both economic and non-economic damages
• punitive damages: available where there is clear and convincing evidence that defendant acted wilfully, recklessly, or with malice

Question 60

Negligence - Personal Injury Damages

Answer 60

Plaintiffs may recover:

• medical expenses
• pain and suffering
  
  • emotional distress
• lost income

Spouses may recover loss of consortium

Parents of minor plaintiffs may sometimes recover for loss of services of injured child

Question 61

Negligence - Property Damages

Answer 61

• Generally: plaintiff may recover the difference between the market value of the property before and after the injury.
• Personal Property: most courts allow the recovery of the cost of repairs as an alternative
• Household Items: courts often measure damages by the replacement value

Question 62

Collateral Source Rule

Answer 62

Traditionally: payments to the plaintiff from outside sources, such as medical insurance, are not credited against the liability of any tortfeasor.

• evidence of insurance not admissable at trial

Modern trend: most states have eliminated the collateral source rule to prevent double recovery.

All jurisdictions: payments by the defendant’s insurer are credited against his liability

Question 63

Negligent Infliction of Emotional Distress

Answer 63

Plaintiff can only recover where he is in a zone of danger created by defendant’s negligence, he believes he is about to suffer imminent harm, and as a result suffers emotional distress.

Bystanders may recover if:

• the injured person is closely related,
• the bystander is present at the scene, and
• the bystander personally observes the accident

Plaintiff may also recover where a physician misdiagnoses a disease or where a corpse is mishandled, even if no physical injury.

*** Some jurisdictions have abandoned zone of danger test.

Question 64

Wrongful Death

Answer 64

Decedent’s spouse, next of kin, or personal representative may sue to recover losses suffered due to decedent’s death

• loss of income
• loss of companionship/society (spouses, parents, children - depending on jurisdiction)

Question 65

Survival

Answer 65

Survival statutes typically enable the personal representative of a decedent’s estate to pursue any claims the decedent herself would have had at the time of her death, including claims for damages resulting from both personal injury and property damage. Such claims often involve damages resulting from the tort that injured the decedent and later resulted in her death

Question 66

Wrongful Life

Answer 66

Most jurisdictions do not permit a plaintiff to bring a wrongful life claim where a pregnancy results from failure to properly perfomr a contraceptive procedure.

Question 67

Wrongful Birth

Answer 67

Many states permit recovery for failure to diagnose a defect.

Question 68

Respondeat Superior

Answer 68

Employers are vicariously liable for their employees’ torts if they occurred within the scope of employment.

• liable even if tort is part of a detour made by the employee
• not liable where employee is on a frolic

Question 69

Joint Enterprise Liability

Answer 69

Business partners or other engaged in a joint enterprise may liable for eachother’s torts where

• common purpose
• mutual rights of control
• acting within the scope of the business purpose

Question 70

Negligent Entrustment Liability

Answer 70

A person may be liable for entrusting a dangerous object to another who is not in a position to care for it.

• automobile
• gun

Question 71

Parental Liability

Answer 71

Parents are generally not liable for the torts of their children. Parents may be liable where

• the child is acting as an agent of the parent
• fail to exercise reasonable prevention of harm to others by the child where the parent
  
  • has control
  • knows or should know of the necessity of exercising such control
• state statute provides liability
  
  • e.g. incurs liability when signs for driver’s license

Question 72

Federal Tort Claims Act

Answer 72

The U.S. government has waived tort immunity, except for:

• assault, battery, FI, FA, malicious prosecution, abuse of process, libel, slander, misrepresentation, and interference with contract
• discretionary functions (planning/decision making)
• government contractors
• inherent government activities (taxing, military, admiralty)

Question 73

Parental Immunity

Answer 73

Trend: parents have limited immunity against their children in core parenting activities. No immunity for:

• automobile accident injuries
• sexual abuse
• intentional tortious conduct
• acts of dual capacity (parent is dentist)

Question 74

Charitable Immunity

Answer 74

Most states have eliminated charitable immunity, but may cap damages available against a charity.

Question 75

Joint and Several Liability

Answer 75

Plaintiff can collect all damages from either defendant where:

• tortious acts of two or more combine to create indivisible harm, or
• multiple tortfeasors act in concert
• alternative liability exists
• medical malpractice *res ipsa *situations

In **pure several liability **jurisdictions, each tortfeasors is only liable for his percent of fault in the harm

Question 76

Contribution

Answer 76

Where tortfeasors are subject to joint and several liability to same plaintiff and one has paid more than his share of the damages, he can sue the other for contribution

• some jurisdictions allocate share by fault
• some allocate share pro rata

Question 77

Indemnification

Answer 77

Where a party that has a judgment against it can sue the party that is actually at fault or who has assumed the liability.

• vicarious liability situations
• where a prior agreement to indemnify exists
• equitable indemnification, where there is a substantial difference in blameworthiness
• strictly liable suppliers against prior suppliers

Question 78

Contributory Negligence

Answer 78

In a three jurisdictions, the plaintiff’s failure to exercise due care eliminates any chance of recovery.

However, if defendant had the last clear chance to avoid harm but failed to do so, plaintiff can still recover

• helpless plaintiff: defendant is liable if he knew or should have known of the peril and could have avoided the harm
  
  • ​watch for sce​narios where D couldn’t avoid
• inattentive plaintiff: defendant liable only if he had actual knowledge of danger

Not a defense to strict liability

• in products strict liability, unforeseeable misuse is a complete bar to liability
  
  • failure to discover defect does not reduce damages

Question 79

Comparative Negligence

Answer 79

In most jurisdictions, damages are reduced by the plaintiff’s contribution to the harm.

• pure: plaintiff’s fault, however great, is never a complete bar (majority)
• modified: if the plaintiff is less at fault than all of the defendants combined, his damages are reduced by his percent of fault
  
  • majority: where fault is equal, plaint may recover half
  • minority: where fault is equal, plaintiff gets nothing

Does not reduce damages in strict liability (majority).

• in products strict liability, misuse or modification may reduce liability

Question 80

Imputed Contributory Negligence

Answer 80

Where one person’s recovery is reduced by the negligence of another. Does not apply where:

• plaintiff’s spouse contributed to harm caused by third party
• minor plaintiff’s parents are contributed to harm
• plaintiff was passenger of a car where the driver contributed to harm
• plaintiff was the owner of the car where driver contributed to harm

Question 81

Assumption of the Risk

Answer 81

Plaintiff cannot recover where he knowingly and willingly accepted a risk of harm, even in strict liability cases.

• exculpatory clauses: generally permitted, unless
  
  • disclaim liability for recklessness, wantoness, or gross negligence
  • gross disparity of bargaining power
  • enforcing party offers important public services
  • there is a contract defense
• athletic events: participants and spectators at sporting events have assumed the risk of some accidents inherent to the activity, especially if there are warning signs.
• in products liability, use of product with knowledge of defect may be assumption of risk and a complete bar to recovery in contributory negligence jurisdictions
  
  • courts hesitant to find carelessness to be assumption of risk
    
    • will instead be a partial bar in comparative negligence jurisdictions

Question 82

Strict Liability - Abnormally Dangerous Activities

Answer 82

Strict liability exists for harms caused by abnormally dangerous activities where those harms are caused by the abnormal danger. Factors test:

• whether there is a foreseeable and highly significant risk of harm even when due care is exercised (most important)
• the gravity of the harm is high
• the activity is not commonly engaged in
• whether there are positive externalities for the community
• whether is is appropriate to the location (not in 3rd R)

Aeroplanes are not subject to strict liability.

Bursting reservoirs are subject to strict liability (Rylands v Fletcher)

Parties performing essential public services are exempt from strict liability.

Question 83

Strict Liability - Wild Animals

Answer 83

Possession of animals of a class that is not by custom devoted to the service of mankind creates strict liability. Contributory negligence may reduce recovery but does not eliminate (in any jurisdiction).

• in some jurisdictions, dog bite statutes create strict liability
  
  • in most, only liable if negligent or knew of dangerous propensities
• owners of any animals other than household pets are strictly liable for foreseeable damages caused by the animal trespassing
  
  • also liable if know or have reason to know household pet is trespassing
• Taunting may bar recovery as assumption of risk

** not liable to undiscovered trespassors unless the injury is caused by a vicious watchdog

Question 84

Products Strict Liability

Answer 84

Anyone in the business of selling a product may be strictly liable if it is defective, the defect existed when it left seller’s control, and the defect caused the plaintiff’s injury.

• class of plaintiffs includes any foreseeable person
  
  • purchasers, subsequent users, bystanders
• circumstantial evidence (res ipsa) may be sufficent to infer defect
• only personal injury and property damages may be awarded under strict liability - no purely economic harms
• a substantial change in the product is a superceding cause that cuts off liability

Question 85

Products Strict Liability - Manufacturing Defect

Answer 85

Test: defendant is liable even if acted reasonably where:

• deviation from the manufacturer’s own design
• such that the product is more dangerous
• causing harm

Question 86

Products Strict Liability - Design Defect

Answer 86

Consumer expectation test: product is defective in design if it is less safe than contemplated by the ordinary consumer

Risk-utility test: product is defective in design if it could have been made safer by additional safety features

• plaintiff must prove there are reasonably feasible safety features or alternative designs that would have made the product safer

**State of the Art **defense applies

**A warning will not necessarily prevent a product from being deemed uncreasonably dangerous

Question 87

Products Strict Liability - Failure to Warn

Answer 87

Where product does not include an adequate warning, especially where design cannot be changed to be safer, e.g. prescription drugs

Learned intermediary rule:

• in the case of prescription drugs
• generally: manufacturer does not have duty to warn consumer directly but instead warns the doctor who prescribes the drugs
• exception: where manufacturer is aware that the drug will be given directly without personal intervention of doctors or health-care providers

State of the Art defense applies

Question 88

Products Strict Liability Defenses

Answer 88

• Assumption of risk: a complete bar to recovery in contributory negligence jurisdictions, but not in most comparative fault jurisdictions
• Contributory negligence: not a defense in contributory negligence jurisdictions, but does reduce recovery in comprative negligence jurisdictions
• Substantial change: a superceding cause that cuts off liability
• Compliance with government standards: usually evidence but not a complete defense
  
  • state tort claims might be pre-empted by federal regulation
• State of the art: in most jurisdictions evidence but not a complete defense in a failure to warn or design defect case

Question 89

Products Liability - Warranty

Answer 89

1. Express
2. Implied
   
   • implied warrant of merchantability (cannot be disclaimed)
   • implied warranty of fitness

Operates like a contract claim, with defenses similar to those of strict products liability.

Question 90

Defamation

Answer 90

Where defendant:

• made a defamatory statement
  
  • false
  • diminishes respect, esteem, or goodwill or deters others from association
• of or concerning the particular plaintiff
  
  • reasonable person’s understanding standard
  • if directed at a group so small as to be understood as directed at the particular plaintiff
• published to a 3rd party who understands defamatory nature
• damaging plaintiff’s reputation

Question 91

Vicarious Liability - Independant Contractors

Answer 91

Generally not liable for the torts of independant k’ors, as defined by

• terms of agreement
• employer’s right of control

One is liable for torts of independent k’ors where

• K’or is engaged in an inherently dangerous activity
• there is a non-delegable duty
• one is an operator of a premises with a duty to keep it safe for the public
• duty exists to comply with safety statute

Question 92

Libel

Answer 92

• Defamation by words written, printed, or otherwise recorded in permanent form is libel
  
  • Defamatory radio and television broadcasts are libel
  • Most courts have held that email can be libel, texts and tweets aren’t cleer
  • Need only prove general damages (damages that compensate the plaintiff for harm to her reputation)

Question 93

Slander

Answer 93

• Defamation by spoken word, gesture, or any form other than libel is slander. To recover for slander, the plaintiff must plead and prove:
  
  • special damges - a third party heard the defendant’s defamatory comments and acted adversely to her.
  • Slander per se - need not prove special damages if the statement accuses the plaintiff of
    
    • commiting a crime
    • conduct reflecting poorlly on the plainitff’s trade or profession
    • havinga loathsome disease
    • sexual miscondut

Question 94

Misappropriation of the RIgh to Publicity

Answer 94

• i) The defendant’s unauthorized appropriation of the plaintiff’s name, likeness, or identity (Most often commercial appropriation cases involve the use of the plaintiff’s name or picture, but this is not required;
• ii) For the defendant’s advantage, commercial or otherwise;
• iii) Lack of consent; and
• iv) Resulting injury

Question 95

Unreasonable Intrusion Upon the Plaintiff’s Private Affairs

Answer 95

• Many states recognize an action for unreasonable intrusion upon the plaintiff’s private affairs (also referred to as intrusion upon seclusion). The defendant’s act of intruding, physically or otherwise, into the plaintiff’s private affairs, solitude, or seclusion in a manner or to a degree objectionable to a reasonable person establishes liability.
• Publication is not required

Question 96

False Light

Answer 96

A minority of jurisdictions recognize a separate tort of false light. The plaintiff must prove that the defendant

• (i) made public facts about the plaintiff that
• (ii) placed the plaintiff in a false light,
• (iii) which false light would be highly offensive to a reasonable person.

Question 97

Public Disclosure of Private Facts

Answer 97

• To recover, the plaintiff must show that:
  
  • i) The defendant gave publicity to a matter concerning the private life of another; and
  • ii) The matter publicized is of a kind that:
    
    • a) Would be highly offensive to a reasonable person; and
    • b) Is not of legitimate concern to the public

Question 98

What are the elements of an intentional tort?

Answer 98

1. Act
2. Intent (specific or general or transferred)
3. Causation

Note: Everyone is capable of intent; lack of capacity is not a good defense.

Question 99

What is a battery (torts)?

Answer 99

Battery requires the intent to bring about or cause harmful or offensive contact with the plaintiff or a logical extension of the plaintiff.

Question 100

What constitutes intentional infliction of emotional distress?

Answer 100

IIED involves intentionally (or recklessly) extreme and outrageous conduct by the defendant resulting in severe emotional distress to the plaintiff. Note: IIED may be the correct answer choice if a prima facie case for another tort has not been met.

Question 101

What are the defenses to intentional tort claims?

Answer 101

• Consent
• Self-defense
• Defense of others
• Defense of property
• Necessity

Question 102

Define duty for purposes of negligence:

Answer 102

Duty is defined as the duty of care owed to all foreseeable plaintiffs, based upon the applicable standard of care:

• The reasonable person
• Professionals
• Children
• Owners/occupiers of land

Question 103

What are the majority and minority views regarding whether a plaintiff was foreseeable?

Answer 103

• Cardozo/Majority View: A plaintiff can recover if he was in the foreseeable zone of danger, meaning that a reasonable person would have foreseen a risk of injury under the circumstances
• Andrews/Minority View: Everyone is a foreseeable plaintiff

Question 104

What is the common carrier/innkeeper standard of care?

Answer 104

The common carrier/inkeeper standard of care is a high standard of care that holds common carriers/inkeepers laible for even the slightest bit of negligence that causes harm to passengers/guests.

Question 105

What is the duty owed to trespassers?

Answer 105

No duty is owed to an undiscovered trespasser. A landowner owes a duty to discovered and anticipated trespassers to warn and make safe concealed artificial conditions known to the landowner. Landowners must also use reasonable care in the exercise of active operations on the property.

Question 106

What is the duty owed to child trespassers?

Answer 106

Landowners owe child trespassers a duty of ordinary care to avoid reasonably foreseeable risks of harm caused by artificial conditions on the property. If there is a dangerous condition and the owner knows children frequent the area and that the condition will likely cause injury, the landowner should remedy the situation provided that the cost is relatively low in comparison to the harm the condition would cause.

Question 107

Who is a licensee? What is the duty owed to licensees?

Answer 107

A licensee is a person who enters property, for his own benefit, with the permission of the landowner. A landower has a duty to warn of any dangerous condition known to him that the licensee is unlikely to discover on her own, and to use reasonable care in operations on the premises. Note: There is no duty to inspect or repair.

Question 108

Who is an invitee? What is the duty owed to invitees?

Answer 108

An invitee is a person who enters the premises with the owner’s permission, for the benefit of the owner/occupier. Because landowners owe the highest duty of care to invitees, they are responsible for inspecting and repairing the property, warning invitees of dangerous conditions they know or should know of, and using reasonable care for operations on premises.

Question 109

What is actual causation? What are the two tests to determine whether actual causation exists?

Answer 109

Actual causation is defined as cause in fact.

• “But for” test: Would the injury have occurred but for the defendant’s actions?
• Substantial factor test: If an injury can be attributed to multiple causes, actual cause is determined by asking whether the actions were a substantial factor in bringing about the injury

Question 110

How do you determine liability in indirect cause cases?

Answer 110

If a foreseeable intervening cause combines with the defendant’s actions to cause the plaintiff’s injuries, the defendant is liable. If there is an independent and unforeseeable intervening cause which results in an unforeseeable injury, the defendant is not liable.

Question 111

What recovery is available through an award of personal injury damages?

Answer 111

A plaintiff may obtain past, present, and prospective damages to compensate him for his personal injuries.

Question 112

What recovery is available through an award of property damages?

Answer 112

An award of property damages holds a defendant liable for the reasonable cost of repair or the fair market value of the property at the time of the accident.

Question 113

When are punitive damages available?

Answer 113

Punitive damages are available when the defendant’s actions were willful and wanton.

Question 114

What types of damages cannot be recovered in tort?

Answer 114

• Interest on damages
• Attorney’s fees

Question 115

What are the defenses to negligence?

Answer 115

• Contributory negligence
• Comparative negligence
• Assumption of risk

Question 116

What is the impact of contributory negligence on damages?

Answer 116

Contributory negligence serves as a complete bar to the plaintiff’s recovery.

Question 117

What is the impact of comparative negligence on damages? Differentiate between pure and partial comparative negligence.

Answer 117

In a jurisdiction using comparative negligence, a plaintiff’s own negligence is not a bar to recovery; rather, damages will be reduced by the percentage of plaintiff’s negligence.

• Pure comparative negligence allows a plaintiff to recover whatever proportion of the damages that the jury finds is not attributable to the plaintiff
• Partial comparative negligence allows a plaintiff to recover only if she was less then 50% at fault

Question 118

To prove liability in a products liability case the plaintiff must show:

Answer 118

A defect in the product that existed when the product left the defendant’s control.

Question 119

Does negligent conduct need to be established to prove strict products liability?

Answer 119

Negligent conduct need not be shown to hold a commercial supplier liable if there is:

1. A strict duty owed by a commercial supplier
2. Breach of that duty by selling an unreasonably dangerous product
3. Actual and proximate cause
4. Damages

Question 120

What type of damages are required to recover for IIED?

Answer 120

The plaintiff must have suffered actual damages (not merely nominal) to recover. There need not be physical damages, but there must be severe emotional distress. Note: Punitive damages may be recovered in situations where the defendant had an improper motive.

Question 121

What types of interference with possession of personal property are serious enough to amount to conversion?

Answer 121

• Theft
• Selling property that one does not own
• Refusing to return property
• Altering property in a substantial manner
• Destroying or damaging property such that it is devoid of nearly all value
• Misusing property

Question 122

What are the requirements for a plaintiff to recover in an action for negligent infliction of emotional distress?

Answer 122

The plaintiff must show that:

1. He suffered physical injury from the emotional distress
2. He was in the “zone of danger” or “target zone,” unless the person injured was closely related to the plaintiff, who was present when the injury occurred and actually perceived the event

Question 123

How do you determine liability when there is an independent intervening cause?

Answer 123

• If there is a foreseeable harm caused by an unforeseeable intervening force, the defendant is usually liable
• If there is an unforeseeable harm caused by a foreseeable intervening force, the defendant is not liable
• If there is an unforeseeable harm caused by an unforeseeable intervening force, the defendant is not liable

Question 124

What is strict liability? How is it established?

Answer 124

Strict liability imposes liability regardless of whether the defendant was at fault. In order to impose strict liability, the plaintiff must show an absolute duty to make safe, breach of that duty, actual and proximate cause, and damages.

Question 125

What is an owner’s liability for damages caused by animals?

Answer 125

An owner is strictly liable for damage done by his trespassing animals so long as the damage is foreseeable. Owners of wild animals are strictly liable for any harm caused by their animals. Owners of domestic animals are not strictly liable for their pets.

Question 126

What are ultra-hazardous activities and what level of liability applies to them?

Answer 126

Ultra-hazardous activities:

1. Involve a risk of serious harm to individuals or property
2. Cannot be performed without this risk
3. Are not activities that are people normally participate in in the community

Note: The exercise of reasonable care will not negate liability for an ultra-hazardous condition/activity.

Question 127

Is there any defense to strict liability?

Answer 127

If the plaintiff knew of a danger then acted unreasonably in the face of the danger and his own actions were the cause of his injury, then contributory negligence may serve as a defense to strict liability.

Question 128

Who may bring a strict liability claim for damages caused by animals and what must be shown?

Answer 128

Licensees and invitees may bring strict liability claims for damages caused by animals. Trespassers who wish to bring strict liability claims, however, must show negligence on the part of the animal owner. Note: When a landowner has a public duty to keep the animals, all plaintiffs must show negligence.

Question 129

To whom is strict liability owed, when applicable?

Answer 129

In most states the duty is owed to foreseeable plaintiffs

Question 130

What is the limit on strict liability?

Answer 130

The harm must be a result of the type of danger anticipated from the animal or ultra-hazardous activity.

Question 131

What must be shown to establish a prima facie case in a products liability case based on strict liability?

Answer 131

The plaintiff must show:

1. Strict duty by a commercial supplier
2. Breach of that duty (that the product was unreasonable dangerous)
3. Actual and proximate cause (defect existed when the product left the defendant’s control)
4. Damages (personal injury and/or property damage)

Question 132

Who may bring a claim for negligent products liability and what conduct is actionable?

Answer 132

Any foreseeable plaintiff may bring a cause of action against any commercial supplier. Any negligent conduct in the manufacturing, supplying, or retailing of a product is actionable. A plaintiff may recover for personal injury and property damage.

Question 133

Who may bring a claim for products liability based upon implied warranties and what types of damages may be recovered?

Answer 133

A purchaser or member of the same household may sue a merchant who deals in goods of a particular kind for the sale of goods that are not fit for their ordinary purpose. The plaintiff may recover for personal injury or property damage and may also recover for economic loss.

Question 134

What must a plaintiff show in order to prevail in a products liability action based on manufacturing defects?

Answer 134

The product was dangerous beyond the expectation of the ordinary consumer due to the discrepancy between the intended design and the actual product.

Note: Food product defects are analyzed as if they were manufacturing defects.

Question 135

What must a plaintiff show in order to prevail in a products liability action based on design defects?

Answer 135

An economically feasible alternative existed that would have made the product less dangerous.

Question 136

What effect does compliance with a government safety standards have on the determination of whether a product was defective?

Answer 136

Failure to comply renders a product defective. Compliance provides nonconclusive evidence that the product is not defective.

Question 137

When will a defendant liable in a products liability action based on intent?

Answer 137

A defendant will be liable to a person injured by a defective product if the defendant intended for an injury to occur or knew that the injury was substantially certain to occur.

Note: If an intentional tort is involved, it is likely battery.

Question 138

Who may bring a claim for products liability based upon an express warranty and what must they establish?

Answer 138

Any consumer, user, or bystander may bring suit; however, the plaintiff must show that the product did not live up to its warranty, not fault on the part of the defendant.

Question 139

Does products liability based on misrepresentation of fact require a particular mental state on behalf of the defendant?

Answer 139

Liability usually arises under a theory of strict liability, but may also be based on intentional misrepresentation or negligent misrepresentation.

Question 140

What are the two theories of products liability based on representations? How do those differ from other theories of products liability?

Answer 140

The two theories are:

• Express warranty
• Misrepresentation of fact

They differ from the other theories of liability because they involve an affirmative representation by the defendant.

Question 141

What are the defenses to products liability based on intent?

Answer 141

Intentional tort defenses are available; however, negligence defenses are not.

Question 142

What are the defenses to products liability based on negligence?

Answer 142

Negligence defenses are available.

Question 143

What are the defenses to products liability based on strict liability?

Answer 143

It depends on the jurisdiction.

In contributory negligence states, it is a defense if the plaintiff voluntarily or unreasonably assumed a known risk. In comparative negligence states, each state applies their comparitive negligence rules. Disclaimers of liability, however, are generally ineffective.

Question 144

What are the defenses to products liability based on implied warranties?

Answer 144

• Assumption of the risk
• Contributory negligence, to the same extent as strict liability cases
• Failure to give notice of breach

Question 145

What are the defenses to products liability based on representations?

Answer 145

The defenses available for express warranties are the same as under implied warranties.
Contributory negligence is a defense for negligent misrepresentations, but is not a defense for intention misrepresentations.

Question 146

For design defects, the court will consider the following factors in determining whether a feasible alternative existed:

Answer 146

• The usefulenss of the product
• Availability of safer alternatives
• Whether dangers posed by the product that have been discovered by the trial date
• Likelihood of serious harm
• Whether the danger was noticeable
• Expectation of danger
• Whether the injury could have been avoided by using care or adequate instructions
• Whether eliminating the danger would substantially interfere with the product’s function or make it unreasonably expensive

Question 147

What effect does compliance with a government safety standards have on the determination of whether a product was defective?

Answer 147

Failure to comply renders a product defective. Compliance provides nonconclusive evidence that the product is not defective.