Torts Flashcards
A company owned and operated a private golf course. One of the fairways on the course ran parallel to a navigable body of water. The company was aware that golfers frequently but unintentionally hit golf balls into the water when playing that hole because there were no barriers to prevent the balls from going into the water. A 12-year-old child, while sailing on the water, was struck by one such ball and suffered a serious physical injury. The injured child’s parent has filed a public nuisance action against the company, on behalf of his child, to recover for his injuries. Is the plaintiff precluded from recovering?
No, because the child was seriously injured while on navigable water due to the company’s negligence.
In order for a private citizen to successfully maintain a public nuisance action, that person must suffer a special injury that is different in kind to that suffered by the general public. The plaintiff’s physical injury here constitutes a special injury. In addition, with respect to the use of a public passageway, the plaintiff’s injury must arise from the use of that passageway and the defendant’s conduct must interfere with, obstruct, or render the passageway dangerous for passage.
In December, a contractor was hired by a power utility company to perform repair work on a large transformer. The contractor performed the work negligently and as a result severely damaged one of the conducting coils in the transformer. The damage resulted in a two-day power outage in a town with a large industrial park. An electronics manufacturer was a tenant in the industrial park, and the power outage crippled its ability to meet the strong demand for its products during the critical holiday buying season. While none of the electronic manufacturer’s machines were damaged, it can prove with certainty that the power outage directly caused it to lose $750,000 in business. The electronics manufacturer sued the power utility company and the contractor for negligently causing its sales losses. If, at the end of the plaintiff’s case, both defendants move for summary judgment, and all the foregoing facts are undisputed, how should the court rule on the motions?
Grant both motions, because the electronics manufacturer suffered no tangible injury to its equipment or employees.
A plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover such loss through a negligence action. Here, the electronics manufacturer’s $750,000 loss is purely economic, so any negligence claim is improper.
An adult woman was vacationing at a friend’s house on a lake. One afternoon, the woman watched her friend maneuver his motorized personal watercraft around the lake; the friend took a particularly violent spill that temporarily knocked the wind out of him but left him otherwise unharmed. The next morning, without the friend’s knowledge, she decided to take the personal watercraft out on the lake herself. Due to her inability to control the vehicle, it flipped over. As a consequence, the woman suffered serious physical injuries. The woman brought a lawsuit against the friend to recover damages for her injuries. The applicable jurisdiction has adopted comparative negligence rules. Prior to the submission of the case to the jury, the friend requested that the court specifically instruct the jury on the assumption of the risk defense. Should the court grant this request?
No, because assumption of the risk is not recognized as a separate defense.
n a comparative negligence jurisdiction, assumption of the risk is not recognized as a separate defense—it has been merged into the comparative fault analysis and merely reduces recovery. The plaintiff’s awareness of the risk of her conduct is generally taken into account in determining the degree to which she is at fault, but it can also be considered in determining the reasonableness of the plaintiff’s or the defendant’s actions.
A pest control company fumigated one of two buildings in an apartment complex with a toxic gas in order to eliminate unwanted insects. Even though the company exercised reasonable care, the gas escaped into the other building, which adjoined the fumigated building, where the gas caused serious illness to a tenant in that building. The tenant had received a written advance notice about the fumigation that advised the tenant of the need to vacate his apartment during the hours the fumigation was conducted. The tenant chose instead to remain there in order to watch a favorite television program. The applicable jurisdiction treats fumigation as an ultrahazardous activity. The injured tenant filed an action against the pest control company. Who will prevail?
The pest control company, because the tenant assumed the risk.
Although the pest control company, by engaging in an abnormally dangerous activity, is strictly liable for harm that results from the conduct of that activity, assumption of the risk is a defense to strict liability. The tenant’s decision to remain in the apartment and thereby possibly expose himself to the gas was both knowing and voluntary.
A father was an avid golfer who often practiced chipping the ball in his backyard. To facilitate this practice, he always left a golf club, a wedge, and a bucket of golf balls inside the house next to the back door. One afternoon, the father’s 15-year-old son—an experienced golfer—came home from school, saw the golf club next to the back door, and decided to take some practice swings. On the son’s second swing, the golf club slipped out of his hands, flew into the next yard, and struck a neighbor in the head. The neighbor collapsed in pain, and was later diagnosed with a concussion. If the neighbor sues the father for his son’s actions, which party should prevail?
The father, because his actions were reasonable.
The father is not liable because his actions were reasonable. The son was an experienced golfer of an advanced age, and the activity of swinging the golf club is unlikely to be considered a particularly dangerous activity. Thus, a reasonable person under similar circumstances would be unlikely to take precautionary measures to restrict the son’s access to the golf club or to supervise his use of it.
In reporting on the death of a city official whose bullet-ridden body was found in a barren apartment, a newspaper attributed the death to a “drug deal that went sour.” The newspaper reporter who filed the report had serious doubts about the official’s involvement with drugs. Later, the newspaper determined that the official neither used nor sold illegal drugs, but instead was killed because he had been involved in a fraud scheme that went awry. The executor of the official’s estate brought an action for defamation against the newspaper. The executor is unable to establish special damages. Who will prevail?
The newspaper, because the city official was dead.
A deceased person cannot legally be defamed. The estate of the deceased official cannot maintain an action for defamation because the defamatory statement was made after the official’s death.
A borrower owed a substantial sum of money to an unsavory lender. One afternoon, the lender knocked on the borrower’s door. When the borrower opened the door, the lender was holding a baseball bat and said, “If you don’t get me the money you owe within the next two hours, I’ll break your legs.” The borrower was extremely frightened, and immediately gave the lender the cash needed to satisfy the debt. If the borrower later sues the lender for assault, will the borrower prevail?
No, because the lender gave the borrower two hours to deliver the money.
To recover for assault, a plaintiff must prove that the defendant’s intentional action or threat caused the plaintiff to experience reasonable apprehension of an imminent harmful or offensive bodily contact. Here, the lender threatened the borrower with harm two hours later in time; thus, the threatened harmful bodily contact was not imminent, and an assault claim cannot prevail.
