Torts Flashcards
Child swings bat at person, misses, and hits third party. What can the person sue for?
Assault. Children liable for intentional torts.
Patient operated by a doctor who performs a successful surgery on another part of body. Tort?
Battery - no consent, even if surgery is successful
Several people involved in fight in which A is hurt and sues all the people. Can A recover for damages if he was not the first aggressor?
No, does matter. Need concerted action to impose liability on all the people in the fight.
B intends to keep A in room and physically blocks A in room. A escapes. What can A sue B for?
False imprisonment. Short time is immaterial.
Patient operated by a doctor who performs a successful surgery on another part of body. Can patient recover nominal damages for negligence?
No. Nominal damages not available for negligence need actual damages.
Can sue for battery and recover nominal damages.
B is a noisy neighbor and tells A that he will cut her throat if A calls the police. Is physical harm needed for an intentional infliction of emotional distress?
No. For conduct that is extreme and outrageous it is intentional and no physical harm needed.
A enters B’s land to avoid a fire and damages fence. Will B be successful in a claim?
Yes. Private necessity is a defense to trespass. Still liable for damages caused by trespass.
A mistakenly takes an item of B believing it to be his. The item is stolen. Can B bring an action against A?
Yes. Conversion. Intend to take item is irrelevant. Action of substantial interference is required.
Thief by another does not relieve A of liability.
B is a teenager with 10% vision in one eye. B fails to see A and hits A. If A prevails against B it is because?
B failed to exercise care a person with B’s disability would have exercised.
B drives car into A and breaks A’s leg. B tries to help. B goes to get help but forgets. A develops pneumonia. What can A recover against if B is not negligent?
Pneumonia only not for the broken leg. B’s action placed A in peril and has a duty to act even if not negligent.
10 year old trespasser is swept away by a river. Can trespasser sue landowner?
No. No duty of landowner to warn trespasser of natural condition.
Child status does not matter.
19 year old trespasser is swept away by a river. Can trespasser sue landowner?
No. No duty of landowner to warn trespasser of natural condition.
10 year old niece steps in an obscured animal hole and breaks leg. Landowner knows of the animal hole. Can niece sue landowner?
Yes. A duty to warn licensee (social guest) of a natural condition of which landowner is aware.
Under pure comparative negligence, A is 60% at fault, B is 30% at fault, and C is 10% at fault. What can A recover from C?
40% if the jurisdiction has joint and several liability.
7 year old child enters land and falls into abandoned mine shaft. Landowner removed warning signs. Child was not attracted onto land. Can child sue landowner?
Yes. Attractive nuisance doctrine requires child to be injured by dangerous artificial condition. No need to be attracted onto land.
Under contributory negligence what must plaintiff show to recover even if they were also partially negligent?
Defendant’s conduct was wanton and reckless. Example: drinking before hunting.
Under contributory negligence, A is 60% at fault, B is 30% at fault, and C is 10% at fault. What can A recover from C?
Nothing.
Several people, who do not know each other, are involved in fight in which A is hurt and sues all the people. A does not know who hit him. Can A recover for damages?
No, cannot prove that they acted in concert.
Concerted action creates joint and several liability.
What is the best defense for manufacturer in a negligent product liability?
No reports of prior accidents. Plaintiff needs to show manufacturer knew or should have known of danger product.
Parent is in a wreck and infant is injured when car seat fails. Parent violated statute driving. Parent brings a negligence product liability action on behalf of infant. Is the violation of the statute a defense?
No. Contributory negligence not imputed to infant.
Parent is in a wreck and infant is injured when car seat fails. Retailer was negligent in failing to notice defect. Parent brings a negligence product liability action on behalf of infant. Can manufacturer use retailer’s negligence as a defense?
No. Intermediate negligence does not relieve manufacturer of liability.
A is hauling dynamite in boxes. A box falls off the truck due to defective truck latch and breaks B’s foot. Dynamite does not explode. B sues A for strict liability. Result?
B will lose, no liability for A. Strict liability only for dangerous propensities. Dynamite did not explode.
A rocket company is testing rockets in a remote area. When launching the rockets, they rockets cause a large cloud of debris to travel over and onto a farmer’s land. The farmer sues for trespass to land. What is the best available defense?
Rocket company had no reason to anticipate that the test would cause debris to travel onto the farmer’s land. Trespass require an intent to enter the land of another.
B lends A her car to go to pick up an pizza. A drives to the mall and browse through several stores, then goes to pick up the pizza. After getting the pizza, another person hits the parked car causing damage. B sues A for negligence and damage caused. Result?
A. Mere delay does not create foreseeable risk of car being hit.
A manufacturer produces a product that an association recommends. A purchasers uses the product, but it malfunctions. The purchaser brings an action against the association. What is the theory that they are likely to recover?
Negligence.
Cannot sue for express warranty, implied warranty of merchantability or strict tort liability (require a commercial supplier of item)
10 year old niece steps in an obscured animal hole and breaks leg. Can niece sue landowner?
No. Niece is a licensee. Only a duty to warn of a natural condition of which landowner is aware.
A hiker bought a water bottle, and while hiking a thief stole the bottle and become sick. Test showed the bottle contained impurities. The thief sues the manufacturer for negligence. What would be helpful to manufacturer in defense?
Manufacturer bottle water in compliance with statutes that regulate processing of water - compliance is not conclusive that manufacturer complied with duty, but evidence of compliance.
A breeds horse on his property. B open dump next door. Smell causes breeding to tamper off. Would A be successful if it operated the horse farm for many years before B opened the dump?
No. Nuisance requires a substantial interference with the use and enjoyment of land. Prior ownership does not establish nuisance.
Company ABC employed a well known scientist. A competitor wanted to hire the scientist and told him statements that were not true. The scientist’s employment agreement was terminable at will. ABC sued the competitor for intentional interference with business relationship. ABC is likely to?
Recover, if damages shown, because competitor used improper means to hire the scientist. Privilege to hire at-will employee does not extend when improper means are used.
Same result if scientist was an independent contractor.
A hurricane was going to strike an ocean town. A tourist in the hotel was told by the owner to go to higher floors. The tourist panicked and headed into the rising waters. The tourist was swept away. The tourist’s estate brings an action against the hotel. Likely result?
For the hotel. No duty to the tourist was breached by hotel. Innkeepers have a higher duty, but no evidence of a breach of that duty.
Homeowner hung a basket using 20-lb fish line, that sportfishers knew meant it could support stresses up to 20-lb. A friend visiting the homeowner was struck by the basket when the line broke. Will the friend prevail in a suit to recover damages?
No. Friend is an licensee (social guest) and homeowner owes a duty to warn of known dangerous conditions. Homeowner did not know that the line was not strong enough to hold basket.
A man borrows a truck from its owner. After the man takes the truck, the owner remembers there is a problem with the steering. The owner calls the man’s wife and tells her. She forgets to tell the man. Later the man drove around a curve and the steering failed, causing an accidence. Man sues owner. Likely result?
Man will prevail. Gratuitous bailment, the bailor owes a duty to inform of known dangerous defects. Wife’s act in not telling is not a superseding cause.
Shopper sues a store for slip and fall that caused a broken ankle. Shopper stepped in water from a malfunctioning freezer. Shopper had testimony that floor around water appeared dirty. Does the shopper need evidence that the employee’s of the store knew the freezer was leaking to survive a motion for summary judgment?
No. Shopper is invitee and store has duty to warn of nonobvious dangers and make reasonable inspectations to discover dangers and make them safe. Knowledge of leaking freezing is not required.
A driver asked a paint shop to paint his grey car yellow. The paint shop instead paints the car pink. The driver was subject to ridicule, but the car functioned. The driver sues the paint shop. Likely result?
Driver will prevail because value of car was reduced - trespass to chattels. Act of interference with plaintiff’s right of possession. Damages would have to be shown.
Due to doctor’s improper surgery a woman becomes pregnant. The women sues a doctor to recover: 1) medical expenses for pregnancy and her pain and suffering during labor; 2) her lost future earnings because of her disability; 3) future cost of raising a child; and 4) extraordinary medical expenses to treat child’s disease. What is least likely to be recovered?
future cost of raising her child - least certain.
Newspaper runs an article that the general manager of a sports team raised ticket prices to support his gambling habit. The general manager is well known in the community. What facts does the general manager have to prove?
Statement by newspaper was false and newspaper acted with actual malice.
Libel - damages are presumed
B loaned her car to C. C loaned B’s car to D, without telling B. D took the car on a 900-mile trip. B asked for car back, but C could not give the car until D returned two weeks later. C attempted to return the car, but B refused and sued for conversion. There was no damage to the car. Likely result?
B can recover for conversion because there is a serious interference with possession. Amount of damages is fair market value of car. C is bailee and liable for conversion if there is a material breach of the bailment.
B berates C and accuses C of shoplifting. B negligently forgot that the public address system was on, and the statements were made to all people in the area. In an defamation action can C recover?
Yes. Publication can be intentional or negligently.
In defending liability under the attractive nuisance doctrine, can the defendant use the child’s knowledge of the danger as a defense?
Yes - need to shown dangerous condition that children are unable to appreciate the risk.
Driver was fed up with pedestrians and drove straight at one intending to make them jump. Driver hit the horn, but the pedestrian was listening to music and did not see the driver. A bystander rushed to save the pedestrian. The bystander fractured her knee when saving the pedestrian. Pedestrian sues the driver for assault. Likely result?
Driver will prevail. In assault need to place the party in apprehension of fear and pedestrian did not see the threatening acts of the driving.
An officer carelessly pulls on reins of horse, which causes horse to be scared and runs off into a crowd. The horse hits and kills a bystander. In a suit by the estate of the bystander, the officer defends on the ground that his actions are not the legal cause of the bystander’s death. Ruling.
For bystander. Officer’s action are the legal (proximate) cause of the death because. Foreseeable.
