Torts

Question 1

Main ? to ask..

Answer 1

Is this D going to be liable to this P for the tort at issue?

Depends on the facts

Question 2

Always ask..

Answer 2

Can P prove elements of prima facie case?

Are there any affirmative defenses available to D?

Question 3

Are P’s super sensitivities taken into account?

Answer 3

NO, unless D knows about them in advance

Question 4

Who is liable for torts?

Answer 4

Everyone can be liable for tortious conduct

GA: Children under 13 are statutorily immune from liability

Question 5

When does a person intend for the consequences of his actions to happen?

Answer 5

A person intends for the consequences if it was his purpose to bring about the consequences OR if he was substantially certain of the circumstances

Question 6

Baseball player throws a bat into the stands, it hits a woman. Did he intend to hit her?

Answer 6

Yes, he was substantially certain that throwing a bat into the stands would hit someone. It doesn’t matter that he didn’t necessarily intend to hit her.

Question 7

Transferred Intent

Answer 7

Intent can be transferred

1) from an intended victim to the actual victim
2) from the intended tort to the actual tort

Unavailable in intentional infliction of emotional distress cases

Question 8

Battery

Answer 8

Elements:

1) harmful or offensive conduct
2) with the person of P

Offensive = unpermitted

P’s person = anything connected with P

Consequences dont have to be instantaneous. Time lag = ok

Question 9

Assault

Answer 9

Elements:

1) apprehension of
2) immediate battery (harmful/ offensive conduct of P’s person)

Question 10

If someone points an unloaded gun at you, does this create a reasonable apprehension?

Answer 10

Yes, because an apparent ability creates reasonable apprehension.

H0wever, if you knew the gun was unloaded there is no apprehension.

Question 11

Apprehension

Answer 11

Apprehension = must be reasonable
- Apparent ability creates apprehension

Apprehension does NOT = fear/intimidation (those go to damages). Don’t need to be afraid or intimidated in order to be apprehensive.

Apprehension = knowledge/awareness (absolute certainty is not needed)

Words alone = insufficient

Words + conduct = sufficient

Words + conduct can UNDO sufficiency (Smile while you say it rule”: Laughing while shaking your fist saying “If you weren’t my best friend, I would punch you in the mouth”

Question 12

False Imprisonment

Answer 12

Elements:

1) sufficient act of restraint
2) within a bounded area

Threats =sufficient (future threats = insufficient)

Inaction is enough if there is an understanding that D would act (does D have a preexisting duty to help P move about?)

P must be aware of the confinement

Confinement length of time = irrelevant except for damages

Question 13

Bounded Area for FI

Answer 13

Mere inconvenience is not enough

Area = NOT bounded if there is

1) a reasonable means of escape
2) P is aware of this means of escape

Question 14

Shoplifting Detentions and FI

Answer 14

GA: By statute, a shopkeeper in Ga may detain a person for a reasonable amount of time upon reasonable suspicion of shoplifting

Question 15

Intentional Infliction of Emotional Distress

Answer 15

Elements:

1) Outrageous/Extreme Conduct
2) directed at P
3) some manifestation of the distress (most likely physical)

Damages: proof of severe emotional distress is required

Intent: no intent to create emotion distress, just Conduct MUST be directed at the P
Recklessness can suffice
No transferred intent

Question 16

Intentional Infliction of Emotional Distress Outrageous Conduct

Answer 16

Conduct = outrageous if it exceeds all bounds of decency tolerated in a civilized society

Continuous conduct may rise to the level of being outrageous if it is repeated often enough. (One time occurrences of this conduct normally isn’t outrageous by itself)

Insults alone= insufficient (but could become sufficient if it is continuous)

Question 17

Types of Ps susceptible to Intentional Infliction of Emotional Distress

Answer 17

1) Young children
2) Elder people
3) Pregnant Women

Super sensitivities of these Ps are not taken into account unless D knew about them*

Question 18

Types of Ds susceptible to Intentional Infliction of Emotional Distress lawsuits

Answer 18

1) Common carriers
2) inn keepers
3) People in a professional/confidential relationship

Question 19

Trespass to Land

Answer 19

Elements:

1) act of physical invasion
2) to land or real property

Just show that the D was on P’s prop without permission.
–No need to show knowledge of crossing a prop. line.

Propelling an object onto the prop = sufficient (must be a physical object to sufficient, propelling light/sound is insufficient for trespass to land claim)

Land = includes airspace & subsurface so long as owner an reasonably use the space

Mistake of boundary lines = no defense

Question 20

Trespass to Chattels and Conversion

Answer 20

Elements:

1) act of physical invasion
2) to personal property

–If there is only damage, then its Trespass to Chattels (vandalism)

• -If there D took possession of prop, its Conversion (stealing)
• —-»>Conversion damage can include serious interference with possessory rights (slashing tires & breaking windows = conversion. If the damage is severe then its no longer trespass to chattels. Look at the severity)

Personal Prop = anything you can own other than land/buildings

Question 21

What are the intentional torts?

Answer 21

1) Battery
2) Assault
3) Trespass to Land
4) Intentional Infliction of Emotional Distress
5) Conversion
6) Trespass to Chattels
7) False Imprisonment

Question 22

Defenses to Intentional Torts

Answer 22

1) Consent
2) Self Defense
3) Defense of Others
4) Defense of Property
5) Necessity
6) Discipline

**There are no incapacity defenses

Question 23

Consent: defense to an intentional tort

Answer 23

Affirmative Defense

IF P consents to the conduct, D is not liable for it.
If D exceeds the scope of the consent, then D can be liable.

P must have capacity to consent
–Ppl who lack capacity = children, mentally disabled, ppl forced/coerced to consent, ppl consenting through fraud/mistake

Children can consent to age appropriate invasions of their interest. Ex. Two 8 year olds can wrestle w/out it being battery**

Can be express or implied (arises from custom and usage OR through P’s own conduct)

Question 24

Self Defense

Answer 24

Affirmative Defense to an intentional tort

A person is justified in using reasonable force to prevent what she reasonably believes to an imminent threat of force against her.

Threat must be in progress or imminent (about to happen)–No revenge

Question 25

What is reasonable belief for self defense purposes?

Answer 25

A reasonable person in the defendant’s position would have believed that he was in danger

Question 26

What force can be used in self defense?

Answer 26

A person may use only the degree of force reasonable necessary to avoid the threatened harm.

Use of deadly force is reasonable only when the defender reasonably believes that he faces a threat of death or serious bodily injury.

Retreat?

• -General rule: U have a duty to retreat unless in your own home
• -GA: No duty to retreat when death or serious personal injury is threatened, including injures to TP. No duty to retreat regardless of where you are.

Question 27

Defense of Others

Answer 27

Affirmative Defense to an intentional tort

A person may defense another person in the same manner and under the same conditions as the person attacked would be entitled to defend himself.

Threat must be in progress or imminent (about to happen)–No revenge

Mistaken Belief: Defender is not liable if he reasonably believes that another person was endangered, even if that other person was not in fact in danger.

Question 28

Defense of Property

Answer 28

Affirmative Defense to an intentional tort

A person may use reasonable force to defend his real or personal property.

Threat must be in progress or imminent (about to happen)–No revenge

Use of Deadly Force

• -General Rule: May never be used to defend prop. alone
• -GA: Stand Your Ground rule: allows the use of deadly force to protect owner’s habitation or personal prop (including businesses & automobiles) and all other prop when necessary to prevent the commission of a forcible felony.

Question 29

Necessity

Answer 29

Affirmative Defense to an intentional tort

Only used on intentional torts ag. prop!!!

Types:

1) Public Necessity
2) Private Necessity

Question 30

D shakes his fist in P’s face and says, “At the end of the day, I’ll beat you!” Has an assault occurred?

Answer 30

No, while these gestures seem to indicate an immediacy needed for an assault, the words itself negate that immediacy. Thus, no assault.

Question 31

Jailer refused to release a prisoner at the end of his jail sentence. Is jailer liable for FI?

Answer 31

Yes, jailer had an affirmative duty to take steps to release prisoner. Breaching this duty = sufficient for a cause of FI.

Question 32

For FI, ones means of escape is not reasonable if it is ??

Answer 32

1) dangerous
2) hidden
3) disgusting
4) humiliating

Question 33

Is it possible to be on another’s land unintentionally and not create a claim of trespass to land?

Answer 33

Yes, when D didn’t mean to be in that place but D was propelled to that place anyway.

Ex. D walking down sidewalk. D has a heart attack. D falls onto P’s prop without P’s permission.

Question 34

Public Necessity

Answer 34

Arises when D invades P’s prop in an emergency to protect the community as a whole OR a significant group of ppl.

Question 35

Private Necessity:

Answer 35

arises when D invades P’s property in an emergency to protect an interest of his own which includes physical safety of himself or his own prop.

Not an absolute defense.
D remains liable for actual harm to P’s prop., & D is never liable for nominal/punitive damages & prop owner can NOT expel/eject D from the prop as long as emergency continues (called sanctuary)

Question 36

Discipline

Answer 36

Defense to an intentional tort (not affirmative)

Allowed for parents or teachers

No liability for corporal punishment of minors so long as it is not excessive.

Question 37

Defamation

Answer 37

Elements:

1) defamatory statement (can be written or oral)
2) of and concerning the P
3) publication to TP
4) damages

It must injure the P’s reputation

Must reasonably be understood to refer to the P (no group defamations)

Publication to TP: Tp must be capable of understanding the statement, publication must be at least negligent if not intentional

Question 38

Defamation Damages

Answer 38

Defamation = spoken = SLANDER= P must prove special damages

Defamation = written = LIBEL= presume damages

• -Ga requires special damages unless its
  1) against a trade/office or profession
  2) accuse P of a serious crime
  3) accuse P of a loathsome disease
  4) “disparaging words productive of special damages”

Question 39

When can a P presume damages in a slander case?

Answer 39

When its slander per se.

Slander pre se =

1) against a trade/office or profession
2) accuse P of a serious crime
3) accuse P of a loathsome disease
4) statement imputing unchastity to a woman

GA: only recognizes the first 3 plus a category of “disparaging words productive of special damages”

Question 40

Defenses to Defamation

Answer 40

1) the Truth: D bears the burden of proving truth
2) Absolute privileges (rare): applies no matter how bad D is
a. Judicial proceedings
b. Statements made in legislative debates
c. Communications between spouses
3) Qualified privileges–can be overcome by showing malice
a. Public duty (legal duty)
b. Private duty (e.g. K duty)
c. Statements made in furtherance of your own interest
d. Comments of counsel
e. Statements about public figures

Question 41

Constitutional limitations on Defamation

Answer 41

1st Amend. protects speech on matters of public concern.

If claim involves speech of public concern, Supreme Ct added to additional elements:

1) falsity; P must prove statement was false
2) Fault: P must prove some level of fault
- –Public P: must prove actual malice = knowledge of falsity OR reckless disregard for the truth
- –Private P: prove fault amount to @ least negligence

Damages: At least against media Ds, all Ps must prove actual malice to recover presumed or punitive damages.

Question 42

Appropriation

Answer 42

Invasion of Right of Privacy claim

Define: Use of P’s name/picture for commercial advantage without permission.

P’s likeness MUST be used for advertising, promotional or commercial purposes

Damages: to recover you will probably need to show economic loss by D using your likeness.

Question 43

Intrusion

Answer 43

Invasion of Right of Privacy claim

Interference with a P’s seclusion in a way that would be objectionable to a reasonable person.

P must be in a place where she has a reasonable expectation of privacy

Question 44

False Light

Answer 44

Invasion of Right of Privacy claim

The dissemination of information that is in some way inaccurate AND that would be objectionable to a reasonable person.

Isn’t always necessarily limited to be shown in a bad light. Someone who is upheld to being hero made have a claim for false light b/c that person has a right to control the way the public sees him.

Question 45

Public Disclosure of Private Facts

Answer 45

Invasion of Right of Privacy claim

Dissemination of

1) factually accurate information that
2) would normally be confidential and
3) the disclosure of it would be objectionable to a reasonable person

Newsworthy disclosures are NOT actionable

Question 46

Defenses to Invasion of Privacy

Answer 46

1) Consent (remember need capacity to consent)
2) Absolute privileges–applies ONLY to False Light/ Disclosures
a. Judicial proceedings
b. Statements made in legislative debates
c. Communications between spouses
3) Qualified privileges–applies ONLY to False Light/Disclosures
a. Public duty (legal duty)
b. Private duty (e.g. K duty)
c. Statements made in furtherance of your own interest
d. Comments of counsel
e. Statements about public figures

Question 47

Fraud

Answer 47

Elements

1) Falsity
2) Scienter: knowledge of falsity by D
3) inducement/intent to induce P to act/not to act by D
4) reliance by P and reliance must be justifiable
5) damages

**Exception to notice pleading, must be plead w/ PARTICULARITY

Need an affirmative misrepresentation (silence is not enough unless the transaction involves the sale of residential real estate and seller knows of the defect. In those cases silence becomes actionable for fraud)

Intention to indue reliance: statement must be material

Question 48

When is it justifiable to rely on a statement by D?

Answer 48

It is normally justifiable to rely on the opinion of one who has superior skill or knowledge in the subject matter of the transaction.

GA: Absent a confidential relationship, P generally has a duty to investigate D’s statements tot he extent reasonably possible. This includes the duty to read a K b4 signing.

Question 49

Negligent Misrepresentation

Answer 49

Liability confined to commercial transactions

Liability confined to a particular P whose reliance is contemplated. (confined to a P who is in privity with the K)

Question 50

Intentional Interference with Business Relations Types

Answer 50

1) Inducting Breach of K: occurs when an intentional act causes a TP to breach an existing K with P
2) Interference with K Relations: D may be liable if interference with P’s K relations make performance more difficult, even if the interference doesn’t actually cause a breach

3) Interference with Prospective Economic Advantage: D may be liable for interfering with P’s expectation of economic benefit from TP, even in the absence of an existing K.
- –GA: has two additional requirements: D must be a stranger to K (no relation to K parties) and malice must be shown (intent to harm)

Question 51

Malicious Arrest/Prosecution

Answer 51

deals with criminal proceedings

Does NOT deal with false arrest or false imprisonment

Question 52

Abuse of Process

Answer 52

Involves civil proceedings

GA: Replaced Abuse of Process with Abusive Litigation Statute

Question 53

Abusive Litigation Statute

Answer 53

Specific to Ga

Requires underlying litigation be 1) malicious & 2) without substantial justification

Safe Harbor: must provide opposing party 30 to withdraw the abusive litigation before you can proceed.

The underlying litigation MUST BE terminated before/prior to any claim under this statute (this is a pre-req to the claim)

Question 54

Negligence

Answer 54

Elements

1) Duty
2) Breach
3) Causation
4) Damages

Question 55

To whom is a duty owed?

Answer 55

You owe a duty to ALL people who are foreseeable VICTIMS of your failure to take precautions.

As a matter of law: rescuers and viable fetuses are foreseeable Ps.

Question 56

How much care must you exercise?

Answer 56

Must exercise degree of care that a reasonably prudent person under same/similar circumstances would

D is expected to use superior skill or expertise for P’s benefit

D’s physical disabilities are attributed to the reasonably prudent person

Reasonably prudent person standard = fixed–apply the standard to the circumstances then/there prevailing.
–Ex. if its raining while driving, then the standard = what would a reasonably prudent person do while driving in the rain?

Question 57

Gross Negligence

Answer 57

May mean either

1) absence of slight care or
2) recklessness (deliberate and conscious disregard of a known high probability of harm to another)

applies to

1) releasees (sign a release),
2) guest passengers,
3) bailments for the benefit of the bailor,
4) naked depository

Question 58

Slight Diligence

Answer 58

Common Carrier Doctrine: imposes a greater duty on those companies and their employees who are common carries towards their passengers. Even insulting lang can sustain an action under this doctrine

applies to

1) bailments for the benefit of the bailie,
2) innkeepers (care to guest prop), and
3) carriers of passengers

Question 59

Child’s Standard of Care

Answer 59

Majority Rule: Child must exercise a degree of care that a reasonable child of like age, intelligence, and experience under similar circumstances would exercise.

GA: Children under 13 are statutorily immune from liability.

Question 60

Child Standard of Care Minority Rule

Answer 60

Rule of 7s:

• -child under age 7 = incapable of negligence
• -child between 7-13 = rebuttable presumption of being incapable of negligence
• -child 14 yrs or older = rebuttable presumption that child is capable of negligence

Question 61

Children engaged in Adult Activities: duty of care

Answer 61

A child engaged in an adult activity is held to the adult standard

(Except if in Ga and under 13, child is still statutorily immune)

Question 62

Professionals: Standard of Care

Answer 62

A professional is required to possess and exercise the knowledge and skill of an ordinary member of that profession in good standing.

This is a general/national standard (doesn’t matter where you are)

Ga: Same except that for facilities you apply the locality standard (E.g. suing a hospital–hospital’s standard of care would be compared to other similarly situated hospitals.)

Question 63

In Professional Negligence Actions: Ga requires what?

Answer 63

Special pleading requirement, Ga requires that the P attach an affidavit of an expert specifying at least one act of negligence and the facts supporting such a conclusion.

Question 64

Informed Consent

Answer 64

Majority Rule: requires informed consent in medical practice. Failure to obtain it would be the basis of a med mal. negligence action.

GA: Does NOT recognize the need for informed consent. Informed consent is only needed for diagnostic and surgical procedures.

Question 65

What must P prove in a legal malpractice suit?

Answer 65

P must prove causation. Called a case within a case.
P must prove she would have won the underlying case but for the lawyer’s neg.

Lawyer’s defense: underlying case = un-winnable

Question 66

Besides negligence, what tort occurs when a doctor operates on the wrong leg of a patient?

Answer 66

Battery

Question 67

Premises liability: Duty to Undiscovered Trespasser

Answer 67

Duty on Activity: Cant set up a death trap

Duty on Conditions: No duty to repair or warn

Question 68

Premises Liability: Duty to Discovered Trespasser

Answer 68

(knows or should know trespasser is there)

Duty on Activity: can’t injure them willfully or wantonly

Duty on Conditions: No death traps

Question 69

Premises Liability: Duty to Licensee

Answer 69

Duty on Activity: ordinary care

Duty on Conditions: No duty to inspect, Duty to warn/repair

Question 70

Premises Liability: Duty to Invitee

Answer 70

Duty on Activity: duty to inspect & ordinary care

Duty on Conditions; Ordinary care & duty to inspect

Question 71

Who is a licensee?

Answer 71

Someone whose presence on the premise is expected or anticipated. Not at owner’s invitation

Question 72

Is a social guest on the property as a licensee or as an invitee?

Answer 72

Licensee

Question 73

Premises Liability: What must P show about the hazardous condition?

Answer 73

P must show land possessor’s knowledge of hazard was superior to P’s.

Question 74

In a static condition question, a land possessor can satisfy her legal obligations how?

Answer 74

1) repairing

2) positing a warning

Question 75

Children and Attractive Nuisance

Answer 75

Ordinary standard of care

This involves a child TRESPASSER and an ARTIFICIAL condition amounting to an attractive nuisance (e.g. swimming pool = artificial condition, pond = NOT an artificial condition)

Question 76

If the entrant is injured by an open and obvious condition, who will win?

Answer 76

The D. The entrant will almost always lose.

Question 77

What is the standard of care owned to people on recreational property?

Answer 77

Owner is liable only for willful and wanton misconduct.

HOWEVER, recreational prop must be

1) made available to the public
2) at no charge (can’t be charged to use the recreation, can be charged for parking, etc.)
3) must be for recreational purposes

Question 78

Statutory Standard of Care

Answer 78

Negligence Per Se

To apply must be within class of person protected by the statute and the risk must have been contemplated by the statue.

GA: No tort action implied from criminal violation

Question 79

Defenses to Negligence Per Se

Answer 79

1) Compliance with the statute is more dangerous than violating the statue
2) Compliance is impossible under the circumstances

Question 80

GA on Negligence Per Se

Answer 80

No tort cause of action is implied from the violation of any civil or criminal statute.

Liability must flow from

1) public duty recognized as a CL tort duty
2) private duty (K created)
3) express statutory authorization for liability–only applies to statutes enacted after July 2008.

Question 81

Affirmative Duty to Act

Answer 81

1) No duty to rescue
Unless
a) D put P in peril
b) Relationship between P and D is either close family relationship, common carriers/innkeepers or invitors

Duty to Control TP: D must have actual ability and authority to control.

Volunteers: One under no duty to act who volunteers to act must do so in a non-negligent manner

Question 82

Negligent Acts when Volunteering are:

Answer 82

1) volunteered response = unreasonable
2) volunteer increases the danger
3) volunteer misleads P into thinking danger is gone
4) Volunteer deprives P of other help

Question 83

Negligent Infliction of Emotional Distress

Answer 83

No duty —- thus no liability

Exception

1) Zone of Danger: If P is in the zone of danger and has a physical manifestation, then P can recover.
* **GA doesn’t follow this!! GA has the Impact Rule requiring there to be a physical impact on the person of P which result in a physical injury OR other personal injury besides emotional distress.

2) Bystander Recovery: P can recover if P personally observes it, is in close relation to the victim and has physical manifestation as a result of witnessing the act.
* ***GA applies Common Force Rule instead. This requires that a bystander may recover for emotional distress only if the bystander is a parent who witnesses the death of a child and is also herself impacted but the common force.

Question 84

Zone of Danger

Answer 84

Exception to the bar of recovery for negligent infliction of emotional distress

If P is in the zone of danger and has a physical manifestation, then P can recover.

***GA doesn’t follow this!! GA has the Impact Rule requiring there to be a physical impact on the person of P which result in a physical injury OR other personal injury besides emotional distress.

Question 85

Bystander Recovery

Answer 85

Exception to the bar of recovery for negligent infliction of emotional distress

P can recover if P personally observes it, is in close relation to the victim and has physical manifestation as a result of witnessing the act.

**GA applies Common Force Rule instead. This requires that a bystander may recover for emotional distress only if the bystander is a parent who witnesses the death of a child and is also herself impacted but the common force.

Question 86

What must P show in a breach of duty

Answer 86

P must point to a specific conduct–either an act or omission

Question 87

How to prove specific conduct?

Answer 87

1) Evidence of Custom: always admissible (private guidelines/policy come under this rule)

2) Res Ipsa Loquiter: P MUST prove:
a) event is one that doesn’t ordinarily occur in the absence of negligence
b) injury causing instrumentality was within D’s exclusive control

Question 88

Res Ipsa Loquiter

Answer 88

used by P who dont know what happened

P MUST prove:

1) event is one that doesn’t ordinarily occur in the absence of negligence
2) injury causing instrumentality was within D’s exclusive control

P must be free from any contributory negligence

GA: Res Ipsa = inapplicable in med mal. P must show a breach of professional duty in med mal. established by expert witnesses.

Question 89

Causation; How to establish it?

Answer 89

Step 1: Cause in Fact

Step 2: Proximate Cause

Question 90

Cause in Fact

Answer 90

But for Test: A D’s conduct is the cause in fact of an injury when the injury would not have occurred but for D’s act or omission.

Question 91

Substantial Factor Test

Answer 91

Use in place of But For test when

1) multiple Ds
2) causes = commingled

Question 92

Burden Shifting

Answer 92

Use in place of But for Test when

1) multiple Ds
2) cause = unknown

Question 93

Proximate Cause

Answer 93

Limitation on D’s liability. A person is only liable for those harms that are within the risk of his activity.

Question 94

Proximate Cause: Direct Cause by D

Answer 94

if the result of the D’s negligent conduct is foreseeable then D = liable

Question 95

Proximate Cause: Intervening Cause between D’s negligent act and injury

Answer 95

Four Situations:

1) Foreseeable Result + Foreseeable Intervening Cause = P Wins, D = liable
2) Foreseeable Result + Unforeseeable Intervening Cause = Jury ?, D more likely to win
3) Unforeseeable Result + Foreseeable Intervening Cause = Jury ?, P more likely to win
4) Unforeseeable Result + Unforeseeable Intervening Cause = D wins

Question 96

Examples of when an intervening cause will almost NEVER cut off liability (D = proximate cause)

Answer 96

Subsequent Medical Malpractice (D could foresee that the P might need subsequent medical treatment, and that treatment might be negligent/go wrong)

Negligent Rescue ( D could foresee that a TP might try to rescue P and that rescue might be negligent/go wrong)

Reaction Forces (e.g. D screams Fire, crowd scatters and crowd tramples P. D = proximate cause)

Subsequent Diseases or Accidents

Question 97

Will D be held to the proximate cause of a TP’s intervening negligent act against P?

Answer 97

Yes, if D could anticipate the TP’s intervening negligent act

Question 98

Is D the proximate cause of intervening criminal conduct against P?

Answer 98

No, unless P can establish prior similar instances of criminal conduct which would make D aware and able to foresee the possibility.

GA: requires evidence of substantially similar prior criminal conduct. Meaning that crimes against property cannot be used to show foreseeability of crimes against person, and vice versa.

Question 99

Is D the proximate cause of P’s injuries when there is an intervening act of God?

Answer 99

Yes, if D can foresee the intervening act of God

Question 100

Defenses to Negligence

Answer 100

1) Contributory Negligence
2) Assumption of the Risk
3) Comparative Negligence

Question 101

Contributory Negligence

Answer 101

Defense to negligence

A P’s failure to use the relevant degree of care for his own safety.

Under CL: ANY negligence by P bars recovery completely.
Modern: P = contributorily negligent when his negligence is equal to or greater than D.

Related doctrines: last clear chance and avoidance of the consequences

Question 102

Assumption of Risk

Answer 102

Defense to negligence

Types:
1) Express: “I’ll take my chances”–completely bars recovery unless if barring recovery violates public policy

2) implied: Test = 1) Actual knowledge of the risk AND 2) voluntarily encountered by P.
- –absence of an alternative destroys voluntariness
- –emergency situations destroy voluntaries

Not available for intentional torts. Instead for intentional torts look for evidence of consent

Question 103

Comparative Negligence

Answer 103

Types:

1) Pure = P recovers amount of D’s damages
2) Modified = P recovers nothing
- –Ga = modified comparative negligent state

When it exists, comparative negligence supplants all other affirmative standard of care defenses except assumption of the risk.

Question 104

Strict Liability Animals

Answer 104

Domesticated: No strict liability unless D knows of 1) dangerous propensity OR 2) there exists a leash law that was violated

Livestock: ordinary care

Wild Animals: strictly liable unless the animals are indigenous (not owned by D)

Question 105

Family Immunity

Answer 105

Modern Trend: Abolish spousal immunity, limit parental immunity in negligence cases. No immunity for intentional torts

Question 106

Charitable Immunity

Answer 106

Abolished in most jurisdictions

Ga: retains it to the extent of charitable assets (insurance is not assets)

Question 107

Governmental Immunity: Multi-state

Answer 107

Modern Trend: Lessening immunity for ministerial acts. Immunity still in effect for discretionary acts

Question 108

Tort claims against the US are governed by what?

Answer 108

Federal Tort Claims Act

Question 109

Georgia Governmental Immunity

Answer 109

Varies with type of governmental entity involved

1) State Entity: governed by Ga Tort Claims Act–non-libailiy for discretionary decisions, allows jury trials, 12 mo. anti-litem notice requirement, damages limited to $1 mil per person & $3 mil per claim. No punitive damages
2) Counties/School Districts: immune from tort claims except for auto injuries and nuisances (only if property damage occurs from the nuisance)
3) Municipalities: Not liable for torts except for auto injuries, nuisances (limited to prop damage) and applicable insurance
4) Hospitals: No governmental immunity except for punitive damages
5) Officials Immunity: Same level of immunity as entity they represent, generally only liable for ministerial or malicious acts.

Question 110

What is a ministerial act?

Answer 110

An act that is clear, direct, specific, and leaves the official no discretion concerning the actions to be taken.

Question 111

Notice requirements for claims against governmental entities

Answer 111

Atem litem notice to the responsible entity.

For state & counties, notice must be given w/n 12 mo of injury.

For municipalities, notice must be given w/n 6 mo. if injury.

Question 112

Strict Liability in Abnormally Dangerous Activity

Answer 112

An abnormally dangerous activity is one that is incapable of being conducted except with a high degree of risk and if harms occurs, the injury will be severe. The activity must be uncommon in location.

Harm must be within D’s risk.

Question 113

Strict Liability in Product-Related Injuries

Answer 113

Elements;

1) D must be merchant-seller (GA: D must be a manufacturer)
2) product must be defective
3) defect existed when product left D’s hands
4) P made a foreseeable use of the product (includes a foreseeable misuse of the product) (foreseeable is not the same as intended use)

Question 114

How can a product be defective in a products liability case?

Answer 114

Can have either a
1) manufacturing defect: the product itself is an anomaly and the difference between eh product in hand and all the other products is what causes it to be defective.

2) design defect: a problem is common to each unit which could have been eliminated though a reasonable alternative design.
* *when a question refers to a feasible alternative to make a product safer, it signals that the D might be liable on a design defect theory.

Question 115

Defenses to Product Liability

Answer 115

1) traditional jurisdictions: conduct that is the equivalent of contributory negligence will not bar recovery, conduct that is equivalent of assumption of risk will bar recovery
* **This is the GA rule

2) Comparative fault jurisdictions: apply comparative fault principles in products liability cases

Question 116

What can insulate a D from strict liability?

Answer 116

An adequate warning label

Question 117

When is strict liability unavailable?

Answer 117

When the product use is incidental to the performance of a service

Question 118

Ga Breach of Warranty Cases

Answer 118

Ga retains the requirement of privity, except for products causing personal injury to a buyer’s family, household member and guests.

Question 119

Private Nuisance

Answer 119

conduct that causes a substantial and unreasonable interference with the use and enjoyment of real estate

Remedies: Ct will weigh the equities of the parties in deciding whether to enjoin D’s activities

Question 120

Public Nuisance

Answer 120

Conduct that causes physical or moral harm to the public in general

Question 121

How can a private P maintain a public nuisance claim?

Answer 121

Private P must show that he suffered injuries different in nature than what the rest of the community suffered.

Question 122

Vicarious Liability: Employer Employee (Respondent Superior)

Answer 122

Employer is vicariously liable or employee’s torts committed within the employee’s scope of employment.

Tort committed during a mere detour = employer still liable

Tort committed during a frolic = employer not liable

Employer is NOT liable for employee’s intentional tort `

Question 123

Vicarious Liability: Independent Contractors

Answer 123

Employer not liable for independent contractors

Except:

1) independent contractor is engaged in inherently dangerous activity
2) non-delegable duties

Question 124

Vicarious Liability of Automobile Owner/Driver

Answer 124

Generally no vicarious liability

Except

1) when driver is performing an errand for owner (liability based on agency principles)
2) family Car states: owner is vicariously liable for torts of members of his household driving w/ permission (GA is a family car state)

Question 125

Vicarious Liability: Parent Child

Answer 125

No vicarious liability

GA: Parents may be vicariously liable for up to $10,000 in medical expenses an/or prop damages resulting from child’s willful or malicious acts

Question 126

Joint and Several Liability

Answer 126

Applies to joint tortfeasors

Joint tortfeasors = two or more ppl whose separate and independent acts of negligence combine to produce a single indivisible injury. In such cases, each D can be liable to P for the entire damage incurred.

Concert of Action
Indivisible Harm

Question 127

Joint and Several Liability in GA

Answer 127

Ga has eliminated joint and several liability when he P is at fault to some degree. —-> in such cases, trier of fact shall reduct P’s recovery by the % of P’s fault

Cases involving more than one D, trier of fact shall apportion fault among all person who contributed to the injury, including non-parties.

Question 128

When can the fault of nonparties be considered for liability?

Answer 128

Only in Ga

Only when P has reached a settlement with the nonparty

OR

Only when D gives notice of intention to apportion to a nonparty at least 120 days prior to trial. Burden of proving nonparty’s degree of fault is on the D.

Question 129

Indemnity

Answer 129

A passive (not really at fault) D can receive full reimbursement from active (really at fault) D.

Ex: Employer who has to pay full judgement can seek indemnity from at fault employee.

Question 130

Contribution

Answer 130

Traditional Rule: Paying D recovers proportional shares from other Ds.

Comparative Contributions: Recovery is based on the relative fault of each tortfeasor

GA: No right of contribution. However, contribution may be available in the absence of apportionment, as when P’s cli a was resolved by settlement.

Question 131

What do the rules of apportionment not apply to?

Answer 131

Apportionment do not apply to relationships such as employer-employee, principal-agent, ect. These relationships give rise to vicarious liability.

Question 132

Wrongful Death Action

Answer 132

Lawsuits brought by a decedent’s beneficiaries for their own loss of support and companionship from decedent.

Question 133

Ga Wrongful Death

Answer 133

Combines two types of claims: survival statute and full value of decedent’s life

Order of Claimants:

1) Spouses
2) Children
3) Parents
4) Personal Representatives

Damages = full value of decedent’s life measured from decedent’s standpoint

• –Solatium damages = not recoverable, (pain/suffering of survivors–Common Force exception)
• -Hedonic Damages = recoverable (intangible damages, e.g. loss of chance to see grandkids, etc)

Question 134

Wrongful Death Damages Pre and Post Death in GA

Answer 134

Claims for damages up until moment of death blond to estate and pass according to decedent’s will. (These damages include special damages flowing directly form the death like funeral expenses)

Claims for damages after death belong to the statutory P and pass to decedent’s heirs at law. (this includes the full value of the life)

Question 135

Survival Actions

Answer 135

Lawsuits brought by a decedent’s estate based on claims that decadent could have brought if he lived and are maintained by the deceased P’s personal representative.

Multi-State: applies to all pending tort claims—not limited to tort claims arising out of specific conduct relating to the death. However, claims pertaining to intangible personal interests do not survive the decedent’s death (e.g. defamation claim would die with decedent)

GA: Applies to all pending claims including claims related to intangible personal interests of decedent. (E.g. defamation claim would not die with decedent)