TORTS

Question 1

PRODUCTS LIABILITY

Answer 1

There are five theories of liability upon which to base a products liability claim. Here, the facts give rise to the following 5 theories:

1. Strict Liability
2. Negligence
3. Implied Warranties
4. Misrepresentation
5. Intent

Question 2

Products Liability - Strict Liability

Answer 2

Has the following 4 elements:

1. Commercial Supplier
2. Production or Sale of Defective Product
3. Causation
4. Damages

Question 3

Strict Liability - Commercial Supplier

Answer 3

An entity that regularly deals in the manufacturing and/or distribution of a product and places it in the stream of commerce.

Question 4

Strict Liability - Production or Sale of a Defective Product

Answer 4

There are 3 types of defects: 1) manufacturing, 2) design, and 3) inadequate warning. Here, the facts give rise to an analysis of the following __ defects:

Question 5

Strict Liability - Production or Sale of Defective Product

Manufacturing Defect

Answer 5

Exists when a product emerges from manufacturing different from and more dangerous than the properly made products. D will be liable if P can show that the product failed to perform as an ordinary consumer would expect it to.

• This test applies to defective food products.

Question 6

Strict Products Liability - Production or Sale of Defective Product

Design Defect

Answer 6

Exists when all products have dangerous propensities because of poor design. Plaintiff must prove that a safer product was economically feasible without serious impact on the price or utility at the time of production.

Question 7

Strict Liability - Production or Sale of Defective Product

Inadequate Warning

Answer 7

Defect results from the manufacturer’s failure to give adequate warnings as to the risks involved in the product. The risk cannot be apparent to the user. There is a presumption that adequate warnings would have been read and followed.

Question 8

Strict Products Liability - Causation

Answer 8

Actual Cause – the defect must have existed when it left defendant’s control. A substantial alteration in the condition of the product after it left D’s control may negate actual cause.

Proximate Cause – the foreseeable causal chain of events between D’s act or omission and P’s harm.

Question 9

Strict Products Liability - Damages

Answer 9

Plaintiff must prove that she sustained damages in the form physical injury.

Question 10

Products Liability Defenses

Answer 10

Here, the facts give rise to an analysis of the following defenses:

Contributory Negligence / Comparative Negligence – when a plaintiff’s unreasonably conduct contributed to his injuries, the defendant may have a complete defense of contributory negligence. In some jurisdictions that follow comparative negligence, courts apportion fault between the plaintiff and defendant and reduce plaintiff’s damages in a comparative fashion (pure) or will completely bar plaintiff’s recovery if she is found to be more at fault than defendant (partial). Plaintiffs are also held to the standard of a reasonably prudent person.

Mitigation – all plaintiffs must takes reasonable steps to mitigate their damages.

Assumption of the Risk – a plaintiff who knowingly and voluntarily assumed the risk of injury from defendant’s conduct is barred from recovery. For the undertaking to be voluntary, there must be another reasonable course of action available to P.

Question 11

Products Liability - Negligence Theory

Answer 11

Has the following four elements:

1. Duty
2. Breach of Duty
3. Causation
4. Damages

Question 12

Negligence Theory of Products Liability - Duty

Answer 12

A manufacturer has a duty to supply safe products to all foreseeable plaintiffs. There is no requirement for contractual privity so the duty extends to all users, consumers, and bystanders. The standard of care is a reasonable manufacturer under same or similar circumstances.

Question 13

Negligence Theory of Products Liability - Breach of Duty

Answer 13

Occurs where the negligent conduct by D leads to the supplying of a defective product. P must show that there were enough facts to put a reasonable manufacturer on notice of the dangers of placing the product in the stream of commerce as designed.

Question 14

Negligence Theory of Products Liability - Causation & Damages

Answer 14

The elements of actual cause, proximate cause, and damages are analyzed the same as in the strict products liability action above.

Question 15

Products Liability - Implied Warranty of Merchantibility

Answer 15

When a merchant sells a product, there is an implied warranty that the goods are generally fit for the ordinary purposes for which they are to be used. The following elements must be met:

1. Breach – occurs when the product fails to perform as an ordinary consumer would expect it to.
2. Causation - The elements of actual cause and proximate cause are analyzed the same as in the strict products liability action above.
3. Damages – Plaintiff may recover for personal injury, property damage, and purely economic loss.

Question 16

Products Liability - Implied Warranty of Fitness of Purpose

Answer 16

P mus prove:

1) seller knew or had reason to know the particular purpose for which buyer is purchasing;
2) buyer relied on seller’s skill or judgment in selecting the goods; and
3) the product failed to live up to that warranty.

Question 17

Products Liability - Representation Theories

Misrepresentation

Answer 17

Exists when the manufacturer misrepresents a material fact about the product, intended to induce reliance, and the plaintiff relies on it.

The elements of actual cause, proximate cause, and damages are analyzed the same as in the strict products liability action above.

Defenses – Here, the facts give rise to an analysis of the same defenses discussed supra under strict liability (Contributory Negligence / Comparative Negligence; Mitigation). NO Assumption of the Risk

Question 18

Products Liability - Representation Theories

Express Warranty

Answer 18

Arises when a seller or supplier makes any affirmation of fact or promise to the buyer relating to the goods that becomes the basis of the bargain.

The elements of actual cause, proximate cause, and damages are analyzed the same as in the strict products liability action above.

Defenses – Here, the facts give rise to an analysis of the same defenses discussed supra under strict liability (Contributory Negligence / Comparative Negligence; Mitigation). NO Assumption of the Risk

Question 19

Products Liability - Intent

Answer 19

Exists where defendant intended the consequence or knew that they were **substantially certain to occur. **

Question 20

DEFAMATION

Answer 20

Defamantion is a defamatory statement of or concerning the plaintiff, published to a third party that causes damages to plaintiff.

Question 21

Defamation - Defamatory Statement

Answer 21

• A defamatory statement is one that tends to lower plaintiff’s reputation in the community.
• A defamatory statement generally must be a statement of fact to be actionable. However, a statement of opinion may be actionable if it appears to be based on specific facts and an express allegation of those facts would be defamatory. Whether a statement is based on fact or opinion depends on the circumstances and the nature of the words.

Question 22

Defamation - Of or Concerning P

Answer 22

Statement must identify plaintiff to a reasonable reader/listener.

Question 23

Defamation - Publication to a 3rd Party

Answer 23

Publication can be intentional or negligent (intent to publish).

Question 24

Defamation - Damages

Answer 24

P’s damage depends on whether statement is libel or slander.

Libel – P does not need to allege special damages for cases involving libel (written defamation).

• TV and radio broadcasts included

Slander Per Se – P does not need to allege special damages for cases involving slander per se, spoken statements that either:

• concerns and adversely reflects on P’s business or professional reputation;
• imputes unchastity to a woman;
• accuses P of committing a crime of moral turpitude;
• claims that P has a venereal disease.

Slander – Special damages (specific economic loss) must be alleged in cases involving regular slander.

Question 25

Defamation - Constitutional Considerations

Public Figure / Official

Answer 25

Public Figure/Official is one who holds public office or voluntarily puts herself in the public eye (actor, politician, athlete). If the plaintiff is a public figure or public official, he must prove that the statement is false and made with actual malice, defined as knowledge that the defamatory statement was false or reckless disregard as to its falsity.

Question 26

Defamation - Constitutional Considerations

Private Figure & Public Concern

Answer 26

If P is a private figure, but the statement involves a public concern (statement relates to a community interest or concern), he must prove that the statement was false and made with, at minimum, negligence as to its truth or falsity.

Public Concern - To determine if a matter is of public concern, the court will look at the content, form, and context of the publication.

If the statement involves a matter of purely private concern, there is no fault requirement.

Question 27

Defamation - Defenses

Answer 27

Consent - is a complete defense.

Truth - In cases where plaintiff does not need to prove falsity, defendant may prove truth as a complete defense.

Absolute Privilege - protects statements by gov’t officials in their official capacity and communications between spouses.

Qualified Privilege - is recognized when the recipient has an interest in the information and it is reasonable for D to make the publication.

• i.e. credit report, letter of rec., statement to police

Privilege may be lost if: 1) The statement was beyond the scope of the useful purpose; or 2) it was made with malice (knowledge of falsity or reckless disregard for its falsity)

Question 28

Public Nuisance

Answer 28

P must prove that D unreasonably interfered with the health, safety, or property rights of the community.

Private Party Claim - Recovery only available if the private party suffered unique damage not suffered by the public at large.

Question 29

Private Nuisance

Answer 29

P must prove that the D unreasonably and substantially interfered with P’s use and enjoyment of his property. (Ex. Odor, noise)

• Interference is unreasonable if the severity of the injury outweighs the utility of D’s conduct.
• Interference is substantial if it is offensive, inconvenient, or annoying to an average person in the community. Not substantial if it’s due to P’s hypersensitivity or specialized use of property.

Question 30

Nuisance Defenses

Answer 30

“Coming to the nuisance” is not a good defense.
Legislative Authority - D’s conduct consistent with zoning ordinance is persuasive, but not conclusive.

• Ex. Zoning ordinance

Conduct of Others - One actor is not liable for all the damage caused by concurrence of his acts and others

• Ex. 10 steel mills polluting a stream. Each mill is responsible for the pollution it causes.

Question 31

NIED

Answer 31

P may recover for severe emotional distress resulting from D’s negligence if:

1) P was in the zone of danger - There was a close risk of bodily harm to P;
2) P suffers severe emotional distress; and
3) P exhibits some physical symptoms from her emotional distress (heart attack, miscarriage)

Question 32

Bystander NIED

Answer 32

A plaintiff outside the zone of danger may recover for severe emotional distress from seeing D cause injury to another if: 1) plaintiff is closely related to the injured party; 2) plaintiff was at the scene of the injury; and 3) plaintiff personally observed or perceived the event.

Question 33

INTENTIONAL TORTS LIST

Answer 33

Assault
Battery
False Imprisonment
IIED
Intentional Interference with Business Relations
Trespass to land/chattel

Question 34

Intentional Torts - Assault

Answer 34

P must prove:

1) Act by D that creates a reasonable apprehension in P
2) of an imminent harmful or offensive contact,
3) with intent, and
3) causation.

There must be physical conduct, mere words do not constitute assault.

Question 35

Intentional Torts - Battery

Answer 35

P must prove:

1) harmful or offensive contact by D;
- RPP standard
2) to P’s person;
3) intent by D to cause such contact, and
4) causation.
- indirect contact sufficient (greasing floor)

A person may recover for battery even if she is not conscious of the harmful or offensive contact.

Question 36

IIED

Answer 36

P must prove:
1) D engaged in extreme and outrageous conduct;

• conduct exceeds all bounds of decency

2) D intentionally or recklessly
3) caused P to suffer
4) damages - severe emotional distress

Question 37

Bystander IIED

Answer 37

To recover for severe emotional distress from seeing D intentionally cause harm to another, P must prove: 1) P is closely related to the injured party; 2) P was present when the injury occurred to the other party; and 3) D knew the P was present.

Question 38

Intentional Torts - False Imprisonment

Answer 38

P must prove:

1) An act or omission by D that confines or restrains P;
2) to a bounded area,
- there can be no reasonable means of escape
3) intent to confine or restrain, and
4) causation.
- Physical barriers, threats of force, invalid use of legal authority
- P must know of or be harmed by the confinement
- It is immaterial how short the time period of the restraint was.

Question 39

Intentional Torts - Shopkeeper’s Privilege Defense

Answer 39

A store may detain a suspected shoplifter on store property for a reasonable period of time in a reasonable manner if they have reasonable cause to believe detainee stole or attempted to steal.

• Limited duration: store may only detain suspect for a short period of time and only for purposes of investigation

Question 40

Intentional Torts - Trespass to Land

Answer 40

P must prove:

1) physical invasion of P’s land by D;
- only physical invasion (no sound, light, smell)
- D must enter property or propel and object onto it
2) D’s intent to bring about the physical invasion; and
3) causation.

A trespass to land can occur when D remains on the land after a lawful right of entry has lapsed.

Question 41

Intentional Torts - Trespass to Chattel / Conversion

Answer 41

The issue is whether D will be liable for conversion or trespass to chattels. The difference is the level of interference with P’s property and recoverable damages.

P must prove:
1) an act by D that interferes with P’s right of possession in the chattel,

• Conversion - if the interference is severe enough to warrant payment of the full amount

2) Intent to do the act that interferes with possession,
3) Causation, and
4) Damages.

• Trespass - cost of repair/rental value
• Conversion - FMV at time of conversion

Question 42

Intentional Interference with Business Relations

Answer 42

To establish a case for interference with contract or prospective economic advantage, P must prove:

1) existence of a valid K or valid business expectancy between P and 3rd party;
2) D’s knowledge of contract/expectancy;
3) Intentional interference by D that induces breach or termination of relationship; and
4) damage to P.

• Damages may be speculative

Question 43

Intentional Torts Defenses

Answer 43

Consent
Self Defense
Defense of Others
Defense of Property
Necessity (Property Torts)
Recapture of Chattels

Question 44

Intentional Torts Defense - Consent

Answer 44

Consent is a defense to all intentional torts.
If P consents to D’s conduct, D is not liable. P must give express or implied consent by custom or usage, and must have capacity to consent.
D may be held liable if he exceeds scope of consent.

Question 45

Intentional Torts Defense - Necessity

Answer 45

D’s interference with P’s property must be reasonably necessary to avoid an immediate threatened injury that is substantially more serious than the invasion that is undertaken to avoid it.

Public Necessity - is an absolute defense when the act is for the public good. P cannot recover damages.

Private Necessity - D is privileged when the act is solely to benefit an individual or small group. P can recover actual damages, but not punitive or nominal damages unless D’s act benefited P.

Question 46

Intentional Torts Defense - Self Defense

Answer 46

Self Defense requires:

1) D to have a reasonable belief that attack is imminent; and
2) must use reasonable force proportionate to the threat of harm.

Question 47

Intentional Torts Defense - Defense of Others

Answer 47

Defense of others requires a reasonable belief that the other person could have used force to defend himself.

Question 48

Intentional Torts Defense - Defense of Property

Answer 48

Requires a reasonable belief that a tort is being or about to be committed on the property. One must first ask D to cease and desist the tort being committed before using force, unless dangerous or futile to do so.

Deadly force is never allowed.

Question 49

Intentional Torts Defense - Recapture of Chattels

Answer 49

D may use peaceful means to recover possession of chattel taken unlawfully.

1) D must make timely demand for return of chattel unless making the demand would be futile or dangerous;
2) Privilege to enter land depends on possessor:

• Wrongdoer’s property - D may enter at a reasonable time in a reasonable manner
• Innocent party’s property - D must first give notice
  
  • If owner refuses, D may enter at a reasonable time in a reasonable manner

Question 50

INVASION OF PRIVACY

Answer 50

There are 4 different torts that comprise the tort of invasion of privacy. To prevail, P must prove only 1 of the 4 torts:

1) Tort

• Appropriation
• False light
• Intrusion upon seclusion
• Public discourse of private facts

2) Causation
3) Damages

4) Defenses - Absolute & Qualified Privilege; Newsworthiness Exception

Question 51

Invasion of Privacy - Appropriation

Answer 51

Use of P’s name or picture for D’s commercial advantage without P’s consent.

Newsworthiness exception - No liability for use of P’s name or likeness for the purpose of reporting news.

Question 52

Invasion of Privacy - False Light

Answer 52

False light exists where:

1) D gives publicity to P concerning views he does not have or actions he did not take; and
2) the false light is highly offensive to a reasonable person.

If it is a matter of public concern, actual malice must be proven.

Defense - Truth

Question 53

Invasion of Privacy - Intrusion Upon Seclusion or Private Affairs

Answer 53

P must prove:

1) D intruded upon the seclusion of another OR private affairs that is
2) highly offensive to a reasonable person.

Private Affairs - private med. records
Seclusion - place (room, car, etc.)

• Photos taken in a public place are not actionable.

Intrusion can be physical or D’s use of senses (binoculars, eavesdropping) or by prying/investigation

Question 54

Invasion of Privacy - Public Disclosure of Private Facts

Answer 54

P must prove that D publicly disclosed private information about P that is highly offensive to a reasonable person.

• Public figures have a lessened expectancy of privacy.

Newsworthy Information - if obtained through public means, is a complete defense

Question 55

Malicious Prosecution

Answer 55

Arises when:

1) D initiates criminal/civil proceedings against P
2) Proceeding terminated in P’s favor
3) Absence of probable cause for prior proceedings
4) D had an improper purpose in initiating proceedings
5) Damages

Question 56

Abuse of Process

Answer 56

Arises when D uses the legal system as an ulterior purpose to threaten or act against P to accomplish that ulterior purpose.

Question 57

Vicarious Liability

Answer 57

An employer will be vicariously liable for the torts of her employees within the scope of their employment, but will not be liable for the torts of independent contractors unless the IC is engaged in an inherently dangerous activity or the employer’s duty is non delegable (Ex. duty of business to keep premises safe for customers).

Employer will be liable for minor deviations, but is not liable if the deviation is substantial in time or geographic area.
Generally, intentional torts by employees are not within the scope of employment.
- Exceptions:
1) Force is authorized in the employment (bouncer);
2) Friction is generated by employer (bill collector);
3) Employee is furthering the business of the employer

Question 58

Negligent Hiring

Answer 58

Employer may be liable for her own negligence is selecting or supervising the IC.

Question 59

Joint and Several Liability

Answer 59

Arises when the acts of 2 or more Ds combine to produce a single indivisible injury. Each D is jointly and severally liable for the entire harm.
If P recovers fully from one D, she may not recover from another D.

Question 60

Contribution

Answer 60

A D who pays more than her share of damages under joint and several liability can assert a claim against jointly liable parties for the excess paid.

Question 61

Indemnification

Answer 61

Shifts entire loss among tortfeasors. A passively negligent D can recover indemnification from the active tortfeasor (must have significant difference in degree of fault).
Available in:
1) contract
2) vicarious liability - where employer is held liable for employee under respondeat superior
3) strict products liability

Question 62

Malpractice

Answer 62

A lawyer may be sued for malpractice if she breaches a duty to her client and this breach results in a harm to the client. P must prove:

1. Duty - Lawyer had a duty to act in a competent manner and as a reasonable attorney
   under the circumstances.
2. Breach of Duty - Lawyer’s conduct fell below that of any other attorney practicing in the locale
3. Actual Cause - but for lawyer’s conduct, P would have not been harmed;
4. Proximate Cause - Foreseeable causal chain of events between lawyer’s conduct and P’s harm.
5. Damages