TORTS Flashcards
1
Q
In an indivisible injury (no clear way to discern which D caused which portion of injury) caused by two defendants, how is liability apportioned?
A
Joint and several liability - meaning each defendant can be liable for the full amount.
2
Q
When there are two defendants but the injuries to P can be apportioned, is D1 liable for a portion of D2’s damages if D2 is bankrupt?
A
No. Without joint/several liability (and where damages are apportioned to each D), there is only causation (and liability) as to the injury specifically caused by the individual.
3
Q
D1 negligently hits P and breaks P’s leg. At the hospital, D2 negligently amputates P’s leg. In suit against D1 and D2, the jury awards $500,000 in damages for loss of the leg. What is the judgment amount against D1?
a) the full $500,000
b) $500,000-damages for amputation
c) damages only for amputation
d) requires knowledge of % of apportionment of fault
A
A) the loss of the leg is an indivisible injury - so there is joint and several liability unless the jury apportions damages.
4
Q
P suffers one injury at the hands of D1 and D2. Jury awards $100K but also finds P 10% comparatively at fault. How much is D1 liable for?
a) more info needed
b) $45K
c) $90K
d) $100K
A
a) more information is needed! The jury’s finding that P was 10% liable means that the jurisdiction follows comparative fault (majority rule) and so a percentage of fault of each D must be made by the jury.
5
Q
How are damages apportioned against defendants in a case where the plaintiff is partially at fault?
A
All the defendants must be named and present to determine fault, and the jury has to determine the percentage of liability for all tortfeasors (even those not named). Distinct from J/S liability!
6
Q
What are the preconditions to joint and several liability?
A
(1) Plaintiff cannot be partially at fault and (2) the injury has to be indivisible (not capable of apportionment between Ds).
7
Q
How are damages apportioned against two defendants in a case where the P is not at fault but the injury is not indivisible?
A
In this case, the jury would have to apportion damages and find the % of contribution of each defendant.
8
Q
Under what circumstances can a parent be liable for a tort committed by their child? (3)
A
“SAD” (and it IS sad, isn’t it?)
(1) aware of dangerous proclivity and fail to Supervise
(2) Agency: kiddo performs task for “family purpose”
(3) Dangerous instrument furnished to kiddo
9
Q
P alleges that D breached a duty of care owed to P. Which of the following could be true?
- D is not liable because there are no damages alleged.
- D will be held liable because there is general duty of care to prevent foreseeable Plaintiffs from foreseeable harm
- If D is accused of an intentional tort, P could recover
a) 1 only
b) 1 and 2
c) 1 and 3
d) 3 only
A
c) - actual damages must be alleged for a negligence case but are not needed to be proven for intentional torts
10
Q
When can pre-judgment interest be awarded to a plaintiff?
A
When it is a liquid sum not subject to jury discretion - e.g. past medical bills.
11
Q
D hates P. D swings a stick at P’s head but P ducks down to tie his shoe and misses the blow. Later on, P’s friend tells P about what happened and P becomes frightened and faints. What tort did D commit?
a) assault
b) battery
c) IIED
d) none
A
c) this was “extreme, outrageous, reckless intentional conduct” by D (2) causing P (3) to suffer severe emotional distress that (4) manifested by objective symptoms (physically))
12
Q
Which of the following will require P to prove actual damages in a trespass to land action?
a) D flies over P’s house at low altitude
b) D chases some kiddos onto P’s property
c) D enters P’s land to avoid a charging bear
d) D refuses to leave after being ordered to do so
A
c) When it’s to escape an emergency situation (in other words, defense of necessity applies), then D is not liable for nominal damages but only actual damages (burden is on P to prove).
13
Q
D’s dog bites P. which of the following is least correct regarding D’s liability?
a) D will only be liable if his dog had previously actually bitten someone
b) if plaintiff is an adult trespasser on D’s property, D will not be liable even if dog had previously bitten someone
c) D will not be strictly liable if he was unaware of his dog’s actions
d) D will not be liable if his dog had never before demonstrated dangerous propensities and P was bitten after she had broken open the dog’s kennel and let the dog out
A
a) dog owners are strictly liable for their dogs only after they become aware of the dog’s dangerous propensities
14
Q
Which of the following is true regarding res ipsa loquitur doctrine?
a) proof of breach need not be shown under res ipsa loquitur.
b) to establish res ipsa loquitur, P must prove the injury was the type that would not occur in the absence of someone’s negligence and that D had notice that such injury might occur
c) Res ipsa loquitur establish P’s prima facia case for negligence against D.
A
a) - res ipsa means you don’t have to prove the breach. b) is wrong because P needs to establish that it’s the type of accident that wouldn’t occur without negligence and that the operative instrument was under D’s control - notice is not an element. C is wrong because res ipsa only removes the breach and causation elements required for a prima facie case
15
Q
D was angry that motorcycles were speeding down the public road in front of his house so he strung a rope across the public road. P was later injured when he rode his bike into the rope after not paying attention to where he was going. What result if P sues D?
a) No recovery if the accident occurred in a contributory fault state.
b) no recovery if D can prove that P saw the rope and had an opportunity to avoid the accident
c) P can recover 100% of his injuries if the accident occurred in a comparative fault state?
d) P can recover in a comparative fault state only if she can show D was reckless
A
C - neither comparative nor contributory fault is a defense against intentional torts or reckless, willful, or wanton misconduct by D.
16
Q
Which of the following is an incorrect statement?
a) truth is not a defense to the tort of publication of private facts
b) damages for the tort of commercial appropriation of likeness is determined by the actual commercial losses suffered by P
c) the tort of publication in a false light requires that D intentionally publicized a false attribution which case a highly offensive light on P
d) the tort of intrusion requires that the intrusion be highly offensive to a reasonable person.
A
b) the proper amount of damages for commercial appropriation of likeness is D’s commercial advantage, not P’s commercial disadvantage
17
Q
P is injured in an auto accident when thrown from his vehicle due to a defective door latch. P sues the auto manufacturer. Which of the following is the D’s best defense in a strict products liability action?
a) P could have avoided the injury by locking his car
b) P operated a shuttle service using the car. For that reason the car door was opened & closed far more often than is typical.
c) P could have discovered the defect had he performed an inspection of the door
d) A recall was issued over a year ago notifying all purchasers of the defect - P failed to replace his latch.
A
d) a recall suggests that P assumed the risk by not replacing the latch – note that operating a shuttle service was probably foreseeable…
18
Q
D sends P a letter accusing him of sexual misconduct. P’s spouse opens the letter and leaves P as a result of the false facts in the communication. In a defamation suit, P will:
a) prevail because D’s accusation constitutes libel per se
b) Not prevail unless D knew that P’s wife was in the habit of opening P’s mail
c) Not prevail unless D made the accusation with knowledge of its falsity
d) Not prevail because there is an absolute inter spousal immunity
A
b) to be defamation, the statement needs to be publicized.
19
Q
What are the four categories in which damages will be presumed in a defamation case where P is a private figure?
A
LUNI: Loathsome disease, Unchastity, Notorious Criminal allegation, Injury in trade, business, or profession. *note that the plaintiff still has to prove falsity and a certain amount of intent
20
Q
What are the elements of defamation?
A
FPID: False statement, Publicized to 3rd party, Intent/negligence element (varies depending on the figure/subject matter), and Damages result
21
Q
What are the defenses to strict product liability?
A
SCAAM: State of the art, Comparative fault (not a plaintiff-harsh contributory negligence rule), Assumption of risk, Alteration (downstream retailer), Misuse/overuse
22
Q
What kinds of torts/instruments can give rise to strict liability? (5)
A
Wild animals, Abnormally-dangerous activities, Statute imposes, product liability, worker’s comp
23
Q
What are the main defenses to tort liability based on negligence?
A
Contributory negligence (including “last clear chance”), comparative fault (not for intentional torts), and assumption of risk
24
Q
What are the defenses/privileges applicable to intentional torts?
A
Consent; Defense of Self, Others, or Property; Recapture of chattels; Necessity; Under Color of Law; “Justification” (catch-all)
25
Which intentional torts can the intent element transfer (among the torts themselves)?
(BAFTT): Battery, Assault, False imprisonment, Trespass to land, Trespass to chattels
26
Which intentional torts require not proof of damage?
(BAFTD): Battery, Assault, False imprisonment, Treslass to land, Defamation (if LUNI subjects)
27
Which of the following is incorrect?
a) truth is not a defense to the tort of publication of private facts
b) damages for the tort of commercial misappropriation is determined by the actual losses suffered by P
c) the tort of publication in a false light requires that D intentionally publicized a false attribution which case a highly offensive false light on P
d) the tort of intrusion requires that the intrusion be highly offensive to a reasonable person
b) the proper amount of damages for commercial misappropriation is D's gain, not P's loss
28
Under which of the following circumstances will an action for interference with contracts lie?
a) D was aware that Betty had signed a 1-year contract to provide daycare services for P. D offers Betty double pay to take care of D's kiddo instead. Betty breaks her contract with P.
b) D was angry with P for not coming to her party and for gossiping about her. D tells Betty that P is impossible to work for and probably won't be able to pay her. These comments induce Betty to break contract with P.
c) Same facts as in B, but Betty and P hadn't agreed to the terms of their one year contract yet
d) Betty hears from a friend that D is paying twice as much for daycare and breaks her contract with P.
b) - remember that the interferer must have knowledge of the contract. And these other fact patterns are just "Good clean fun"
29
Some frat dudes were drinking and decide to shadow box. A new frat pledge, Tim Timid, was in the room where the games were about to begin. A frat bro said "shadow boxing is about to begin - anyone who doesn't want to participate should leave the room!" A frat bro then picked Tim Timid up, not realizing he had a "glass jaw" and tapped TT lightly on the chin. When TT's jaw was broken and he sues frat bro for battery, frat bro's best defense is:
a) he did not intend to injure TT
b) If TT had a normal jaw, no damage would have resulted from the tap
c) TT consented to the damage by not leaving the room when fighting began
d) TT assumed the risk by not leaving the room when fighting began
c) It's not rock-solid but is the best defense: remember that assumption of risk is a defense for negligence actions, NOT intentional torts like battery!
30
Sharon was shopping at Store A, which closes at 9:00 p.m. She took a bunch of outfits into the dressing room at 8:45 and the store manager decided to close up shop at 8:55. Everyone forgot Sharon was in the dressing room. At 10:40 after trying on every combination of outfits she had, Sharon laid down on the couch in the dressing room for a nap. She woke up at 7:00 a.m. to the sound of the store opening, learned about her confinement, and decided to file a legal claim for false imprisonment. What is the defendant's weakest defense?
a) The store manager didn't know he was confining Sharon
b) Sharon had no knowledge of her confinement
c) Sharon can show no actual damages
d) The false imprisonment did not set physical boundaries as she could have moved throughout the entire store.
D is the weakest - knowledge is necessary, intent by the manager, and actual damages must all be proven for Sharon's claim to succeed.
31
Doug and his wife Sue were driving one day. Sarah Speeder wasn't paying attention and failed to stop at a stop sign and collided with the couples' car. Had Doug been more alert, he might have been able to swerve or stop in time to avoid the accident. Sue was injured in the crash. If Sue brings suit against both Doug and Sarah, she will:
a) not prevail against her husband Doug because of intra-family immunity
b) prevail against her husband only if Sarah is determined to have no fault
c) Prevail against both her husband and Sarah in proportion to their relative fault
d) prevail against her husband and Sarah for J&S liability
C is the best answer because recovery would be against both Defendants in proportion to their relative fault. D is incorrect - the fact pattern doesn't imply that the two Ds were acting in concert which is necessary for J&S liability. However, the contributory negligence of one D can be asserted by the other.
32
Larry Lawnmowers sole new and used lawnmowers. They offered trade-in credit for used lawnmowers. When Nancy traded in a mower Larry's mechanics inspected the mower and found that its rotary blade could fly off if the mower was inspected. The store wrote a sign on it that said "As is - may be dangerous if operated." Mike Motor bought the mower for the motor (not to use as a mower). When he started the machine to see how it ran, the blade flipped out and cut his ankle. If Mike sues Larry Lawnmowers for his injuries, the court will likely find for:
a) Mike because the lawnmower was not fit for its ordinary purpose
b) Larry, because Mike purchased the title to the lawnmower "as is"
c) Larry, if Mike had the last clear chance to avoid the injury
d) Mike, if it was unreasonable for Larry's to sell the lawnmower without a detailed warning of the drive shaft problem
D - "as is... may be dangerous" may not be a detailed enough warning! ("as is" may defeat a warranty of merchantability but not a negligence claim)
33
Billy Boozer was drunk and at a bar and ordered two beers. The bartender suspected he was drunk but served him anyway. Billy began to drive home after the two beers.
Unbeknownst to anyone involved, the beers had been subject to a freak mistake and had a tasteless toxic solvent in them. While driving home, Billy was affected by the solvent and passed out, and he ran into Phillip Pedestrian. If Phil brings suit against the bar, the most effective argument the bar can make is:
a) the 2 beers didn't make Billy intoxicated
b) serving two beers to Billy was not the cause-in-fact of Phil's injury
c) the statute was not intended to prevent injuries from people drinking beer that contained toxic poison
d) the mistake at the bottler was a superseding cause of the injury in question
c) The most effective defense argument since establishing liability under a statute requires that P's particular injury be among the harms or risks which the statute was intended to prohibit. The injury didn't occur because of alcohol but the toxic solvent. Remember C isn't a good option because superseding causes which relieve the original defendant of liability must unforeseeably occur after the "in fact" cause (solvent happened earlier)
34
Sobriety Forever was a city with a statute which stated, "any business or individual who sells alcoholic beverages to a minor shall be liable to any party injured by that minor while intoxicated." Dick Drinker was 17 but looked older (he had a beard, yo!) so he easily got into certain bars. He spent all night at two bars - one named Tuesday's and the other Friday's. After 2 drinks at Tuesday's, Dick became "relaxed" and was talked into going to drink more at Friday's. After leaving Friday's, he got into a car accident based on his cumulative intoxication. Tuesday's did not serve him enough alcohol to make him intoxicated, and the alcohol that Friday's gave him would have been enough to make him drunk even if Tuesday's had not served him at all. If the injured party sues, the court should hold that:
a) Tuesday's is liable under the statute even if their conduct did not cause Dick to become intoxicated
b) Tuesday's conduct was a cause of Dick's intoxication, but not a cause of the injury because his driving superseded their statutory violation
c) Tuesday's conduct was not the sole cause of Dick's intoxication because Friday's conduct was a substantial factor in making him intoxicated
d) Tuesday's conduct was a cause of the injury because Dick would not have become intoxicated at Friday's if Tuesday's did not sell him alcohol.
D is the best answer because of the "but for" test. The injury would not have occurred "but for" Dick's intoxication which would not have occurred "but for" Tuesday's. A is not the best answer because the statute indicates that liability depends on the causal relationship between Tuesday's conduct and Dick's intoxication.
35
Larry Lone ranger, an off-duty police officer, was sitting in his truck and observed a masked man, Ryan Robber, running out of a bank carrying money bags & a shotgun. Larry had just heard on his police radio that a robber had knocked over the bank and shot two tellers. Larry grabbed a rifle off his truck gun rack. As Ryan ran by, Larry yelled, "Stop or I'll shoot!" Ryan heard him, crouched down, and fired a round a Larry. Larry took careful aim and shot Ryan and killed him. If Ryan's personal representative brings suit for battery, the least effective defense is that Larry Lone ranger believed the fleeing suspect:
a) posed a threat of death to him
b) had just committed a felony
c) posed a threat of serious physical injury to others
d) had evidence significant "serious dangerousness" due to the weapon and shot aimed at Larry
b) is the least effective defense. Without more, commission of a felony is not grounds to use deadly force in the context of a battery.
36
Billy Bullly started a fist fight with another 10 year-old named Jack DeLong whom Billy thought was a weakling. Unknown to Billy, Jack had been working out and was hella strong. Ike Intervenor, a 25-year old man, was out for a walk when he saw Jack strike Billy twice. Billy fell back and Jack stepped forward to strike him again. Ike thought Jack was the aggressor and to protect Billy he stepped in and threw Jack into the adjoining river. Jack's arm was broken and he almost drowned. He brought suit against Ike for damages. Ike's best defense is:
a) He thought Jack was the initial aggressor
b) Billy had a valid defense if Jack sued him
c) the force Ike used was not excessive
d) he had no intention of injuring Jack, only to stop Billy's beating
b). Under the defense of others, the intervenor steps into the shoes of the victim (note that this is the case for torts... in criminal law this "stepping into the shoes" is the minority rule with the majority rule being... is it reasonable based on the intervenor's own perception)
37
Sue Swimmingpool lived in a house with a swimming pool in the backyard. The neighbor's 19-year old sun, Stan, asked Sue if he could swim for free if he vacuumed the pool once a week. Sue agreed. Without mentioning it to Stan, Sue drained the pool one morning. Stan came home at night after playing a baseball game and wanted to cool off by swimming. In the dark, Stan ran into the pool and broke both his ankles. The jurisdiction has a comparative fault (negligence) statute. If Stan asserts a claim against Sue, the likely outcome is that the claim should:
a) prevail because the pool was an artificial attractive nuisance
b) not prevail, if a reasonable person in Stan's position would have known the risk of diving into a swimming pool at night
c) Not prevail, because Stan was a trespasser
d) Prevail, if it was unreasonable for Sue to drain the swimming pool w/o warning Stan
D. Stan would likely receive a partial recovery under a pure comparative fault statute in proportion to the relative fault of the parties. A landowner owes a duty of reasonable are to an invitee, there is SOME liability for the duty to warn.
38
Evan Experiment was poor. He saw a sign in a medical clinic seeking volunteers for mild surgery in exchange for $500 from a federal program. He signed up immediately. The Doctor took his explication and made a detailed disclosure of the risks involved. Evan signed a form consenting to experimental surgery. The surgery resulted in complications. AND the federal program expired so Evan didn't get paid. If Evan sues the doctor and the medical clinic for battery, the likely outcome is that Evan will:
a) prevail if the doc was negligent
b) not prevail because Evan consented to the operation
c) Not prevail unless the doc knew the statement of receiving $500 compensation was false
d) prevail if evan would not have consented to the operation had he known the truth that gov't funding would run out
b). Evan may have to sue for breach of contract for not getting the $ but that is collateral to the battery. He consented to the surgery with informed disclosures to the battery suit is going nowhere.
39
While Frank was working his sales route for Waxford Manufacturing Company and driving a company owned car, a truck collided with Frank. He was injured and applied for worker's comp under state law. Waxford doesn't want to pay the claim. The best argument Waxford can advance is:
a) any injuries suffered by Frank did not arise out of and in the course of employment
b) a route salesman paid on a commission basis is an independent contractor (automatically) and therefore excluded from worker's comp coverage
c) Frank himself was grossly negligent in driving and therefore he assumed the risk
d) The injury did not occur on the employer's premises and was due to the negligence of the truck driver
A - if true - would be the best defense. There is not an automatic rule about whether agents are considered employees or independent contractors
40
National Nuclear operated 3 nuclear power plants creating a lot of electricity. One was located alongside the Columbia River where some scientists believed earthquakes could occur frequently. The reactors generated a lot of heat which created an explosion hazard. To reduce the risk, National pumped water from the Columbia and circulated it in the reactors, cooling them. After cooling, the water was highly radioactive and required extensive cooling to reduce the toxicity, so the "hot" water was stored in large holding tubs for a long time before being drained back into the river.
There was an unexpected earthquake and the holding tubs cracked. Massive amounts of water flooded Nancy Neighbor's farmland. If she asserts a claim against National Nuclear for strict liability for an abnormally dangerous activity, the court should find for:
a) National b/c the unexpected earthquake was an act of God
b) Nancy, because operating a nuclear power plant is an abnormally dangerous activity
c) Nancy because it was unreasonable to operate a nuclear power plant in a geographic location prone to earthquakes
d) Nancy, because "hot" water in large quantity is an element that is foreseeably likely to create harm to neighbors if it should escape from its containers
d) using the land in a non-natural way, here where storage of the "hot" water was reasonably foreseeable to cause danger - triggers strict liability
41
David Driver was driving on an interstate to his home 200 miles away. At a road stop, Henry Hitchhiker came up to him and asked for a ride. David agreed. Henry got into the driver's side back seat and fell asleep, without wearing a seat belt. David snoozed at the wheel and ran into a ditch. This jurisdiction has a guest statute. If Henry sues David, the court will likely find for:
a) Henry if he can prove that David failed to exercise ordinary care
b) David because Henry failed to fasten his seatbelt
c) Henry only if he can prove that David was grossly negligent or reckless
d) David because a hitchhiker assumes the risk
C. A guest statute eliminates driver liability to nonpaying passengers unless the driver was grossly negligent, reckless, or intoxicated.
42
What is the effect of a "guest statute" and what does it relate to?
A guest statute eliminates driver liability to nonpaying passengers unless the driver was grossly negligent, reckless, or intoxicated.
43
Harry Healthcare held himself out as a "natural doctor" by listening this title on his business card and relevant advertisements. He did not have a license to practice medicine or render treatment, however. He still gave Peter Patient chiropractic treatments and "prescribed" medicines to him. Harry's treatment did not help Peter, who became worse and filed a lawsuit. The trial court instructed the jury that non-compliance with the mandatory medical doctor state licensing law could be considered as "clear evidence" of negligence. This instruction:
a) was proper b/c Harry was practicing medicine without a license
b) was improper b/c failure to obtain the required medical license did not cause Peter Patient's injury
c) was improper, because the lack of the required license here is negligence 'per se' as contrasted to merely 'clear evidence' of negligence
d) was proper, since practicing medicine w/o a license is conclusive evidence of malpractice
b) is the best answer because failure to obtain a real doctor's license was not the cause of P's injury, allowing the jury to consider it to be "clear evidence" is erroneous. The jury would likely be allowed to consider violating the statute to be "some evidence" of incompetence.
44
Reliable drug company created an experimental drug intended to right and/or slow down HIV's progression into AIDS. The company did as much testing prior to release as possible including requesting assistance from competitors. Unfortunately, a number of patients died from cancer, which was a consequence of drug treatment unknown at the time of release. When these results became apparent, Reliable redesigned the drug components thereby correcting the previous cancer-causing side effect. A class action lawsuit was filed against Reliable. Reliable's defense strategy will lease likely include which of the following?
a) file a motion in limine to exclude at trial any evidence of subsequent remedial measures
b) defend on the basis that the drugs were state of the art at the time of release so it was not technically possible to design the HIV-AIDS drug with additional safety
c) Argue that strict products liability should not apply
d) Argue that the drug purchasers assumed the risk
d) the least likely argument because patients did not know the side effects and could not have assumed the risk! All the rest are valid strategies!
45
Douglas Driver was driving north on Park Place Road at 40 miles per hour. Fred Follower was driving behind Douglas in an old car with his prized laptop computer system on the passenger seat. Douglas braked quickly when a light turned yellow. To stop in time and avoid hitting Douglas' car, Fred had to jam on his brakes. In the process of the rapid braking, Fred's prized computer was thrown into the windshield and destroyed. Fred jumped out and he and Douglas got into a verbal argument. Douglas was particularly abusive in this argument.
After a few minutes, they both got back into their cars and continued down Park Place Road. This particular section of Park Place was alongside an elementary school and there was a posted sign that "speed limit is reduced from 40 to 25 mph during school hours." Neither driver slowed down. One block later, a schoolboy ran out in the road and Douglas slammed on his brakes. Fred was still upset about the previous incident and was not paying close attention. When he realized he had to stop quickly, he slammed on the brakes but was too late to avoid running into Douglas's car.
If Fred brings suit against Douglas for the damages to his computer, the most helpful fact supporting Fred's recovery would be that:
a) Douglas had a history of stopping suddenly
b) Fred will not recover the full among since he was partially at fault
c) Douglas could have probably gotten through the intersection before the light turned red
d) Douglas was abusive in the discussion following the incident
C is the most helpful defense because Douglas had the "last clear chance" to avoid the accident
46
Peter Pornography applied for a business license to operate a topless dancing establishment. The application process involved numerous public hearings and many in the community loudly complained. One neighbor, Patty Pure, who lived in the same block as the proposed establishment, was especially vocal. At a public hearing she stated, as her research indicated, that these types of establishments were run by organized crime. She further stated that they hire prostitutes, many of whom are addicted to illegal narcotics and that some of the establishment's customers are rapists who often vandalize the community and attack single females. Based upon her complaints, the city license department denied Peter Pornography a business license. If Peter sues Patty for defamation, Peter will likely:
a) Recover, because he incurred monetary damages
b) Not recover, because Peter was a public figure
c) Not recover, because Patty reasonably believed her statements to be true
d) Not recover, because Patty's statements of fact did not refer to Peter
C. Patty is protected by a privilege as she is a neighbor conducting her own affairs in a manner concerning her own interest. She was speaking in good faith and this fair comment standard is that of a reasonable neighbor.
47
Cathy Consumer purchased an automobile on contract from Fly-By-Night Auto. The car proved to be an absolute lemon and Fly-By-Night was unable to repair the automobile. They also refused to rescind the sale or reduce the balance Cathy owed on the purchase contract. Cathy finally dropped off the car in their parking lot and wrote Fly-By-Night a letter in which she stated she would not make any more payments on the account. She also filed a written complaint with the Better Business Bureau. The letter stated that Fly-By-Night was unethical, dishonest, and would not repair the lemon automobiles they sold. The Better Business Bureau published Cathy's statements in the local newspaper, causing Fly-By-Night to lose sales.
Fly-By-Night wrote back to Cathy stating that they disagreed with her complaint and were going to begin collection action on her account. Their collection agent, named Tommy Thug, went out to Cathy's home. Cathy was holding a birthday party for her mother in the back yard and most of her family, friends, and business associates were in attendance. Tommy went into the back yard screaming that Cathy was a deadbeat who did not pay her bills. Everyone present heard the statements.
Cathy was very embarrassed by the statements and fainted. When she regained consciousness, she was very distressed and ran into her house. Tommy followed closely behind Cathy, continuing to yell the insults loudly. When Cathy saw Tommy was following her through the doorway, she became very angry and slammed the door in Tommy's face. The force of the door slamming into his face broke Tommy's nose.
If Cathy sues Tommy for outrage or the intentional infliction of emotional distress, Cathy will:
A) prevail, because Tommy was trespassing on her property
b) prevail, because Tommy's actions were extreme and outrageous
c) Not prevail, because words alone are never sufficient
d) Not prevail, because the statements were true since she did not pay the balance of her account
B. Outrage requires the D's conduct be outrageous/extreme. In this case it is!
48
Oscar Owner operated an automobile repair garage containing, among other equipment, a gasoline tank and pump. Tracy and Tony Thief were driving in the neighborhood and ran out of gas. They saw the garage, which was closed at the time. They found a locked side door which they forced open and then entered the building. They located a large glass container and filled it with gasoline from the pump. Tracy turned suddenly and dropped the glass container, which broke and started a large fire. The fire trapped Tracy and Tony in the building. Ryan Rescuer saw the fire, called the fire department on his cell phone, ran into the building, and pulled Tracy to safety. He decided not to go back into the building to try to save Tony. In the process, Ryan received significant burn injuries, but the fire department saved the building.
Tony died in the fire. His personal representative brought suit against Ryan Rescuer for wrongful death. The likely outcome of this lawsuit is that the personal representative will:
a) Prevail, because once a rescuer begins the rescue, there is a full duty to complete
b) Not prevail, because a trespasser assumes the risk of not being rescued
c) Not prevail, because an uncompensated by standard has no duty to go to the rescue of a stranger
d) Not prevail, because a thief assumes the risk of not being rescued
C. is the best answer (A is incorrect because Ryan did not "begin" to rescue Tony... it's a separate rescue!
49
When a tire of a motorist’s car suffered a blowout, the car rolled over and the motorist was badly injured. Vehicles made by the manufacturer of the motorist’s car have been found to be negligently designed, making them dangerously prone to rolling over when they suffer blowouts. A truck driver who was driving behind the motorist when the accident occurred stopped to help. Rescue vehicles promptly arrived, and the truck driver walked along the side of the road to return to his truck. As he approached his truck, he was struck and injured by a speeding car. The truck driver has sued the manufacturer of the injured motorist’s car.
Is the truck driver likely to prevail in a suit against the car manufacturer?
(A) No, because the car manufacturer’s negligence was not the proximate cause of the truck driver’s injuries.
(B) No, because the truck driver assumed the risk of injury when he undertook to help the motorist.
(C) Yes, because it is foreseeable that injuries can result from rollovers.
(D) Yes, because the car manufacturer’s negligence caused the dangerous situation that invited the rescue by the truck driver.
(D). YES. It is well established that injury to rescuers is sufficiently foreseeable to support proximate cause. As Cardozo said, “Danger invites rescue.”
50
D borrows P's lawn mower without permission, intending to return it. However, D fucks up the lawnmower on accident, causing $200 worth of damage. The lawnmower was originally worth $400. What tort has been committed and how much can P recover?
Though this started as trespass to chattels, by damaging 50% or more of the value, it becomes conversion. P is entitled to full recovery of $400.
51
What are the contribution and indemnity? And when can they be asserted among who?
Contribution is where there are co-defendants and one pays more than his/her share of the judgment based on his/her relative fault (fault would have to be apportioned by the trier of fact)... the over-paying co-D can go after the other for contribution of her share. Indemnity is where one party is held liable for something for which they were not very much at fault - they can then go after the more at-fault party (maybe a co-D, maybe wasn't even party to the suit to begin with) to recover. NEITHER contribution nor indemnity are available for intentional tortfeasors.
52
Does res ipsa loquitor apply to strict liability cases?
No. Res ipsa loquitor, if applicable, provides a prima facie case for negligence. Strict liability is a different pathway to liability.
53
If there is evidence on point of negligence, is res ipsa loquitor a viable route to establishing tort liability?
No. Res ipsa short-cuts the plaintiffs case regarding duty and breach - if there is actual evidence of the defendant's negligence this is a traditional route to liability separate from res ipsa.
54
What are the elements of public disclosure of a private matter?
1. Broad publication to the public of
2. Private information (reasonable person would expect to remain private)
3. Subject matter = objectionable to a reasonable person (not a legitimate public concern)
4. Truth ≠ defense
55
What are the elements of appropriation of a commercial likeness?
1. Unauthorized use of P’s name, picture, likeness
2. For D’s commercial advantage/to promote D’s product/service
3. Damages = reasonable value gained for the use of P’s likeness
56
What are the elements of publication in a false light?
1. Publication of a false attribute that casts false light on P in public’s view
2. False light = highly offensive to reasonable person
3. False light must result in actual damages
4. Note similarity to defamation
57
What are the elements of intrusion upon seclusion?
1. Physical intrusion by D into P’s private affairs or seclusion
a. Physical intrusion includes peeking, unwanted phone calls, examining private records
2. Must violate a reasonable expectation of privacy
3. Must be “highly offensive” to a reasonable person
58
What are the specific torts that are also proven under a negligence theory?
Public disclosure of a public matter, appropriation of a commercial likeness, publication in a false likeness, intrusion upon seclusion, defamation (depending on the figure/subject matter), nuisance, negligent misrepresentation.
59
What are the elements of negligence misrepresentation?
1. Blend of negligence/fraud
2. False statement negligently made by D (not intentional, which would trigger fraud)
3. D has to have particular status (professional/business person)
4. D knows that P is relying on D’s statement
5. D can still be liable if actually thought the statement was true/accurate
6. P suffers monetary damages
60
How does the law handle the "reasonable person" standard for defendant's with unusual conditions (e.g. mental illness, physical handicap)?
i. Hot-tempered, developmentally disabled, mentally ill, careless, unintelligent ≠ different standard (still held to reasonable person standard)
ii. Extreme insanity might relieve D of intent requirement finding for intentional torts
iii. Physical impairment – deaf, blind, or physically handicapped
1. How would a reasonable person with that physical impairment act under the circumstances?
61
Do tort claims survive the death or the plaintiff and/or the defendant? What type of claim can be brought if the would-be plaintiff was killed?
i. Tort claims (and, incidentally, contract claims) survive the death of either party (deceased plaintiff’s claim brought by personal rep, PR)
ii. Wrongful death suit: PR can bring a suit for damages
1. Damages include loss of future earnings
2. Often include loss of consortium
3. Can also often include pre-death anguish, suffering
4. But the defendant’s defenses survive also!
62
At what age(s) do most jurisdictions begin to hold children liable for torts they commit?
a. Almost all jurisdictions say people under 4 are not liable for tort
b. Most say 7-14 there is a presumption against liability but this can be rebutted
63
What standard of care is applied to children who commit torts?
1. Conduct normal for a child?
a. Standard = Reasonable child of same age, education, intelligence
2. Engaging in adult conduct/inherently dangerous?
a. Standard = of a reasonable adult
64
When does joint/several liability apply and how does it work?
1. Plaintiff cannot be at fault
2. Multiple defendants cause P's injury
3. Must be an “indivisible” injury (harm is not capable of accurate apportionment between defendants)
4. Even when percentage of fault is assessed, P can go after either D for the full amount of damages
5. Defense: If neither D was individually negligence, but combined actions create unforeseeable harm – no liability
65
How does pure comparative fault operate?
1. Plaintiff can still recover even if partially at fault
2. Even if plaintiff is more than half at fault, can still recover (e.g. 90% at fault, can still recover 10%)
Note - this is the majority rule/default on the UBE!
66
How does modified comparative fault work?
Plaintiff can recover if slightly at fault but has to be less than 50%
67
How does contributory negligence operate?
Plaintiff may NOT recover if at all at fault
68
For which intentional torts are damages presumed (and need not be shown)?
a. Battery
b. Assault
c. False imprisonment
d. Trespass to land
e. “per se” defamation (LUNI subjects)
69
What sorts of damages are recoverable in most torts (both intentional and negligence)?
1. Property loss
2. Economic loss
3. Pain/suffering
4. Mental distress
5. Future damages – e.g. lost earnings
a. Recoverable if they are foreseeable
b. Cannot be too speculative
c. Accounted for using present value (and allowing for inflation)
6. Interest – pre-judgment interest NOT typically allowed
a. Would have to be an exact amount known at the time (akin to liquidated damages)
7. Plaintiff has a duty to mitigate damages (failure to do so limits P’s recovery)
70
For what torts might an injunction also be a source of relief (money damages alone are inadequate)?
Continuing trespass, nuisance, conversion, invasion of privacy.
71
What are the typical statutes of limitations for torts (and which torts would have which SOL?)
1. Typically 2 years for short-lived torts (e.g. assault, battery, false imprisonment, defamation, nuisance)
2. Typically 3 years for other torts
72
When does the statute of limitations begin to run for tort actions? When might it be tolled? What is the other "statute" to consider in this analysis?
a. At the time of injury, OR
b. If injury accrued over time – last exposure or date where injury sufficiently discoverable
c. Discovery can be actual/constructive
4. Tolled if D outside the state or P is personally disabled
5. Statute of repose:
a. Maximum period during which a person can be exposed to liability
73
Among which intentional torts may intent be transferred? In other words, intent to voluntary take actions that cause one of these torts can be transferred if the outcome is another one of these torts...
1. Battery
2. Assault
3. False Imprisonment
4. Trespass to land
5. Trespass to chattels
74
Under what standard will the court measure whether a defendant's conduct was harmful/offensive?
Harmful/offensive contact is a requirement to prove a case for some intentional torts
i. Harmful/offensive contact = contact that an ordinary person would find objectionable
1. Super sensitive plaintiff’s reaction may not be reasonable, so wouldn’t satisfy harmful/offensive contact requirement
a. UNLESS D was aware of phobia/hypersensitivity
75
What are the elements of battery? What need NOT be proven? What's an easy defense to a battery claim?
1. Intentional harmful contact with the dignity/body of P
a. Dignity/body = including the clothing, something they are holding, a bike they are riding, etc.
2. Non-emergency medical surgery w/o consent = battery
3. Apprehension of injury not necessary (can be asleep and still be battered)
4. Damages proof not required
5. Defense: contact consent (implied in many situations e.g. getting bumped on the subway train)
76
What are the elements of assault?
1. Intentional, unprivileged act
2. Results in P’s apprehension of imminent harmful/offensive contact
a. P’s apprehension must be reasonable
b. Threat must be immediate
c. Words are not usually enough
3. Unwanted sexual advance counts
77
How does false arrest work? What's the difference between when a private citizen or a police officer connects a false arrest?
a. Private citizen can only arrest if felony committed in her presence
i. Mistake is NO defense
b. Police can arrest w/PC
i. Even if mistaken about facts/ID of perp, so long as reasonable, excused
78
What are the elements of false imprisonment?
1. Intentional, unprivileged confinement/restraint of P’s liberty
a. Confinement/restraint of liberty – P does not know of any method of escape
2. Against P’s free will
3. D must have knowledge that she is doing the confining
a. Intent to set physical boundaries
4. P must be aware of confinement (cannot be asleep)
79
What is defense to false imprisonment for a particular set of people?
"Shopkeeper privilege" -
a. Shopkeeper can detain a suspected shoplifter
b. So long as requirements met, even a mistake is defensible:
i. Reasonable basis to suspect theft by the detained person
ii. Reasonably temporary time
iii. Reasonable degree of confinement
80
What are examples of actions that would constitute trespass to land?
Includes actual physical entry, crossing over land, flooding from your land, tunneling under your land, a low-flying airplane, throwing an object over land, or my animal trespasses onto your land
81
What are the basic elements of trespass to land?
1. D intentionally physically invades or wrongfully remains on P’s land
a. Includes holdover tenants
2. Good faith irrelevant
82
What damages must be shown in a trespass to land case?
a. Intentional trespass – no damages required to be shown
b. Negligent/defensible trespass – actual damages must be shown
c. Note that injunction may be available for continuing trespass
83
What are the elements of trespass to chattels?
1. Intermeddling w/personal property possessed by P
2. Used/taken w/o permission
3. Actual damage results required – either to the chattel itself or resulting from P’s deprivation of it for that time period
4. Only minimal intent requirement (even picking up the wrong suitcase on accident = trespass to chattels)
5. (Converts to conversion if 50% of the chattel’s value or more is destroyed)
6. *note that if your chattel is taken, you are privileged to use reasonable force to recover it and/or go onto the trespasser’s land (“hot pursuit”)
84
What are the elements of conversion?
1. Wrongful exercise of dominion/control over the personal property of another
2. Includes: theft, embezzlement, improper transfer/retention, damage/destruction of the thing
3. Damages – P gets full fair market value of the asset + consequential losses
4. D must have actually intended to convert the item
5. Title of stolen goods does NOT pass even to BFP; original owner can get it back (replevin)
6. Remember – requires more than “intermeddling” like trespass to chattels; involves intent to exert dominion/control over the property
7. Possible remedy – injunction if money damages alone inadequate
85
What are the elements of "outrage" (intentional infliction of emotional distress)?
1. Extreme, outrageous, and reckless intentional conduct by D
a. Conduct that “shocks the conscience and exceeds all possible bounds of common decency” (geez)
b. Words along are not enough unless you are a common carrier/innkeeper (and even then the insults would need to be pretty bad)
2. Causes P to suffer severe mental/emotional distress
a. No transferred intent: D must have intended to distress this particular plaintiff
b. D in position of special trust e.g. babysitter, employer, outrageous bill collector? Duty of care raised
3. P’s distress is manifested by objective symptoms (medically ascertainable e.g. fainting spells, illness, heart attack)
a. Actual damages required
b. P measured by ordinary person standard: if P is hypersensitive, D’s duty of care is only raised if knew of sensitivity
86
How does negligent infliction of emotional distress differ from intentional infliction of emotional distress (in other words, how is the burden of proof on the plaintiff different)?
The actual damages must be more serious - physical symptoms in the plaintiff such as a miscarriage or nervous breakdown would need to be shown. But, obviously, intent on the D's part would not need to be shown but just negligence.
87
Can a plaintiff consent to a criminal act?
4. Even consent to a criminal act would be a defense
a. BUT P cannot consent to criminal act that was meant to protect people like the P (e.g. you cannot “consent” to statutory rape and so would still be able to sue for battery)
88
Under what standard is consent measured?
3. Would a reasonable person in D’s shoes have interpreted P’s actions/words as consenting?
a. Even if mistaken, reasonable assumption is defensible
b. UNLESS D’s fraud or misrepresentation caused P’s consent
89
How does the defense of recapture of chattels operate?
1. Reasonable force is fine, but mistaken belief that person has taken your property is no defense
a. And, if you went on their property and were mistaken, you are liable for trespass to land
2. Must be in fresh, “hot pursuit”
3. Non-deadly force only
90
What's the difference between public and private necessity?
Public necessity - to protect the public from a serious threat = absolute privilege, no liability for any injury to P
Private necessity - to save yourself? Still a defense but liable for actual damages done to the P
91
To what torts does the "under color of law" defense apply and how does it operate?
1. Applies to battery or false imprisonment
2. Includes legitimate arrests by officers (including mistaken), shopkeeper’s privilege
3. Also grounds to stop a fleeing suspect so long as reasonable force
a. Deadly force is okay to stop a fleeing suspect who poses a threat of death or just engaged in serious felony
92
Who may assert a disciplinary privilege to tort liability?
Parents, teachers, and military officials
93
What is the general duty of care that people owe others? How would a court assess the question of whether a given defendant exercised that duty of care?
1. How would a reasonably prudent person act under similar circumstances?
2. General duty to protect foreseeable parties from foreseeable risks (Palsgraf)
3. Learned Hand balancing test –
a. ‘Cost’ of prevention < harm x likelihood → should exercise the precaution
4. Experts can help testify regarding whether a given defendant was reasonable
94
What are the professional standards of care for health care professionals?
a. Generally – ordinary standard of a reasonably prudent medical professional
b. If Board-certified – slightly heightened: reasonably prudent specialist standard
95
What is the professional standard of care for attorneys?
a. Most states – attorneys held to a consistent standard, not a local standard
b. Plaintiff trying to prove malpractice would have to show ‘but for’ malpractice of attorney, would have had near certain victory in underlying case
96
When might consent be implied for a health care professional?
Life-threatening medical emergency and patient cannot give consent… it will be implied
97
What is express informed consent and who has to get it?
Health care professionals must get express, informed consent from patients. Failure to do so = negligence.
i. D has to make full disclosure of risks/dangers and possible alternatives
ii. P must show that would not have consented had she known the risks
98
If consent is given to a health care professional, but he exceeds the scope of the consent, what tort has he committed?
Battery
99
What standard of care is owed by rescuers?
1. No common law duty to be a rescuer
2. But if a rescuer initiates, could be liable for
a. Negligently increasing the risk of harm
b. Negligently making P’s injury worse
c. Abandoning the rescue once underway (esp if an alternative rescuer decides not to intervene b/c rescuer 1 appeared to be on it)
100
How does the law protect rescuers?
3. Protections for rescuers:
a. Original tortfeasor liability – “danger invites rescue”
i. Original tortfeasor is liable for harm to victim and to the rescuer (AND harm caused by rescuer)
b. Good Samaritan statutes
i. Ordinary negligence by rescuers is excused
ii. If there is a G.S. statute, rescuer would have to be more than negligent for victim to recover against the rescuer (and victim can always go after the original tortfeasor for a foreseeable danger that invites rescue)
101
What is the professional rescue doctrine?
Original tortfeasor’s liability does not extent to police/firefighters who injure themselves during rescue
102
How does the duty to rescue operate with the person who created the harm?
4. Duty to rescue if you created the harm
a. Harm creator is not protected by Good Samaritan statutes -- so can still be held liable for additional harm caused by the rescue even if only ordinarily negligent
103
How is the duty to/not to rescue changed in a co-venture?
Co-venturers sometimes have a duty to rescue each other (depending on jurisdiction)
104
What is the duty of care in an emergency situation?
1. How would a reasonable person behalf in a similar emergency? (lower standard of care)
2. Defendant cannot claim this lower standard if:
a. Caused the emergency
b. Set the forces in motion that caused the emergency
105
What is a joint enterprise and how are members in joint enterprise liable to each other in tort?
In a joint enterprise, the common purpose may be general, such as research, non-profit activities, or leisure activities. The common purpose in a joint enterprise may even be illegal, in which case the actors will share the guilt or liability of others.
Members of a joint venture are vicariously liable for torts committed by others w/in the course/scope of joint enterprise
106
How is a joint enterprise different from a joint venture?
A joint enterprise is a general common purpose; a joint venture requires a business purpose.
107
What is a guest statute and what does it do?
Guest statute = eliminates driver liability to non-paying passengers unless driver grossly negligent, reckless, intoxicated
108
What are duties of care owed by drivers/owners of vehicles?
1. Right-of-way (driver to the right at intersection)
2. Rear-end collision (follower liable to front car)
3. Last clear chance
4. Crosswalks – yield to peds
5. Violation of DUI statute?
a. Presumptively unreasonable
6. Violation of traffic statute (e.g. speeding)
a. Just something to consider… not presumption of negligence
7. Negligent entrustment: duty not to let negligent, reckless, drunk drive use your vehicle
8. But guest statute = eliminate driver liability to non-paying passengers
109
What is a landowner/possessor's duty of care regarding the outside/external portion of her property?
1. Not generally liable for injuries that occur outside the premises – e.g. not liable to pedestrians who are hurt outside property via natural conditions (E.g. icy public sidewalk)
a. But liable for:
i. Artificial falling objects they control (e.g. bricks fell from your building)
ii. Falling overgrown trees
110
What duty of care does a landowner owe adult trespassers on her lad?
i. General rule: trespass @ own risk
ii. If owner knows of constant trespass, may create the duty to correct/warn of known dangers
iii. May not use willful negligence or excess force
1. E.g. bear traps w/no warning
2. Spring guns – usually strict liability
iv. Owner may also be liable to rescuers created by owner’s creation of harm (“danger invites rescue”)
111
How are a landowner's duties of care different when the victim is a kid?
i. “Attractive nuisance” doctrine – near strict liability for kiddos, requires:
1. Artificial condition that was left exposed in a lace where kiddos could see/access
2. Victim is young enough not to understand the risk/danger
ii. Natural conditions – usually no liability unless owner could easily avoid injury w/simple precautions
iii. Owner may have to reasonably inspect for open, easily discoverable natural hazards – hidden ones, no liability even to kiddos
112
What is a licensee and what duty of care do landowners/possessor owe to one?
i. Someone w/express or implied permission to be on premises for non-business purpose
ii. E.g. social guest
iii. Landowner liable for damages from visible/known dangerous conditions (duty to warn of known dangers)
iv. No duty to inspect for unknown dangers
113
What is an invitee and what duty of care does a landowner/possessor owe to an invitee?
i. Public invitee – facility open to the public e.g. retail store, church, library
ii. Business invitee – for business purposes for the owner (including employees, business customers, mail carriers)
iii. Landowner duty to inspect and remedy/warn of hazards that are reasonably discoverable
iv. Unawareness on the owner/possessor is no defense
v. But an invitee can leave the scope of invitee status (e.g. goes behind “employees only” door and is now a trespasser)
114
What is a landlord's liability for injuries that occur on a leased premise (under tenant's control)?
a. Not liable for injuries that occur on a tenant’s watch, unless
i. Hazard known to landlord but not tenant
ii. Injury occurred in common tenant area
iii. LL made negligent repairs
115
What is the standard of care for owners of domestic animals?
a. Dogs – “one free bite”
i. After gaining knowledge of a creature’s vicious propensities, strict liability imposed
b. All others – duty of ordinary care.
116
What is the duty of care for owners of wild animals?
Strict liability - even if the animal is domesticated.
117
What duty of care do land owners owe to possible buyers?
1. Common law – caveat emptor “let the buyer beware”
| 2. Modern rule – sellers must discloser latent conditions/dangers not discoverable upon reasonable inspection
118
What duty of care do commercial vendors of bottled/to-go liquor owe people who suffer injuries at the hands of their patrons?
None!
119
What duty of care do commercial hosts who serve liquor owe people who suffer injuries at the hands of their already-inxocated patrons?
Serving liquor to an already intoxicated person triggers potential liability to foreseeable victims (but not to the drunkard who only hurts herself)
120
What duty of care do social hosts who serve liquor owe people who suffer injuries at the hands of their guests?
Bo duty unless serving to minors (negligence per se unless consumed in parents’ presence)
121
How does violation of a statute intersect with a demonstration of breach of duty in tort?
1. Violating a statute can be considered a breach of duty of care
a. Violates criminal statute – negligence per se if violated a criminal statute (establishes duty + breach)
b. Civil statute – violation is just evidence of negligence
i. Is this the type of harm the statute was meant to prevent?
ii. Is P in the class of persons the statute is meant to protect?
2. Not strict liability unless statute says so
3. Still need to establish causation!
122
What is res ipsa loquitur and how does it work?
1. “The thing speaks for itself” if
a. Injury would not ordinarily occur absent negligent
b. Instrumentality under D’s exclusive control
2. Not conclusive – just shortcuts duty and breach; causation and damages must still be shown
123
What is the difference between an intervening and superseding cause and which one will sever a defendant's liability for plaintiff's injury?
a. Intervening = “we expected this” (e.g. a series of people after your accident act like jackasses e.g. the EMTs and the doctor) – doesn’t necessarily sever liability
b. Superseding = we didn’t expect this (you get in an accident and then your EMT is Batman and injures you while you are en route to the hospital because engaged in fight with the Joker)
i. A superseding cause removes the harm/results from the reasonable chain of risk created by D’s original act
c. In other words, an intervening cause will only break the chain of liability if it is a “superseding cause”
124
What are the two types of assumption of risk?
1. Express – includes signing a waiver
| 2. Implied – P has actual knowledge of specific future risk and voluntarily proceeds/ignores warnings
125
What is nuisance?
1. Substantial, unreasonable interference with property
2. No physical invasion necessary
3. P need not prove bad intent on the part of defendant
4. Possible remedy of injunction, not just $
126
What is a public nuisance and who can bring a public nuisance suit?
a. Actions that interfere w/health, safety, public peace, or other rights of the community or neighborhood
b. Suit typically brought by gov’t entity
c. Private party can bring suit if special damages different in kind from the general public at large
127
What is a private nuisance?
a. Substantial, unreasonable interference w/individual or small group’s use/enjoyment of private real property
b. D’s conduct could be negligent, abnormally dangerous, or irrational
c. Includes loud noises, offensive odors
128
How much interference w/use of one's land needs to be shown in a nuisance case?
a. Interference must be more than mere annoyance
| b. If usefulness to the D’s behavior, balancing test
129
What are the defenses to a nuisance action?
a. Coming to the nuisance
| b. Extra-sensitive plaintiff
130
What are the defenses to defamation?
TEMPR:
a. Truth
b. Express/implied consent (including calling the interview, can’t be made about the light in which the report is shed)
c. Mere subjective opinion
d. Privilege
i. Absolute: made in the court of judicial proceedings, legislative proceedings
ii. Qualified: fairly made in the discharge of public/private duty or in conduct of one’s own affairs
e. Retraction
131
What are the elements to fraud?
1. FIRD elements
a. False statement of fact (With actual or constructive knowledge of falsity)...Not mere puffery, unless fiduciary duty exists
b. Intent to induce P to be misled/act upon the statement
c. Reliance ((a) Would a reasonable person rely on this statement? (b) Did P in fact rely on this statement?)
d. Damages – “benefit of the bargain”
132
What is fraudulent concealment (what's an example)?
1. E.g. “let the buyer beware”
2. Requires some sort of fiduciary duty to the plaintiff
3. Seller fails to disclose/conceals a serious defective condition
133
What are the elements of interference w/contract or business expectancy?
a. A bona fide existing contract
b. Interferer has knowledge of the contractual interest
c. D plays an active role in bringing about the breach
d. Actual damages
e. Not simple competition (which is “good clean fun”)
134
What is the tort of product disparagement?
1. Defamation in a competitive business environment
2. Publicized false statement to 3rd parties that disparages/casts doubts about P’s business, product, or service
3. Nominal damages recoverable, but other losses also recoverable (loss incurred via drop in sales)
4. Truth is a defense
135
What is required to show an abuse of a criminal proceeding?
1. Malicious criminal prosecution – e.g. w/out probable cause
a. Malice requirement – no good faith
2. Privilege for judges, police, and D.A.s
136
How could one show abuse of a civil legal proceeding?
P must show special/actual damage to reputation by bringing a frivolous claim (more difficult to prove the lack of justification than in criminal)
137
What are the "alienation of affection" torts and under which legal system are/were they recognized?
These are common law torts... may not be recognized anymore:
a. Criminal conversation – homewreckers
b. Loss of consortium – D messed up your spouse (e.g. paralyzed) and robbed you of their affection, support, income, etc.
c. Parents may have a claim against D for death/abuse of their child
138
How does strict liability for abnormally dangerous activities operate and what are defenses to it?
i. An activity that cannot usually be conducted safely so risk is eliminated
1. Liability imposed whether or not defendant used reasonable care
ii. Ex: storing toxic chemicals, nuclear reactors, crop dusting, mining activity, public firework displays
1. Not included: firing a gun, driving a car
iii. Defenses: assumption of risk (when trespassing) after reading warning sign; public necessity/comparative fault (partial defenses)
139
What are the ways strict liability can be created in tort?
(1) by statute, (2) workman's comp, (3) wild animals), (4) abnormally dangerous activities, (5) product liability
140
What are the three theories under which strict liability can be extended to products liability?
Design defect, manufacturing defect, failure to warn
141
How does a design defect theory of strict products liability work?
1. Design itself is faulty
2. Court will consider the cost of implementing a safer reasonable alternative design against the risk/extent of potential injury to customers
a. Not unlike the Learned Hand test!
142
What sort of factors should you look for in identifying a manufacturing defect? What sorts of duties might be imposed on manufacturers to prevent such defects?
1. Production problems (with packaging, handling, etc.)
a. Was it possible to produce the item correctly w/o the defect?
2. Manufacturer has a duty to inspect before shipping
3. In some industries, requiring testing also okay
143
What does it mean for a jurisdiction to recognize a cause of action for "loss of chance of survival?"
Traditionally, to prevail against a medical malpractice case, the plaintiff would shave to show that it was more likely than not (greater than 50%) that the decedent would have survived if not for the hospital/doctor's negligence. If a jurisdiction recognizes "loss of chance of survival" as a cause of action, a representative can recover just for the loss of chance of survival.
