Torts

Question 1

Battery (tort)

Answer 1

1) D must commit a harmful or offensive contact

2) Contact must be with P’s person

Question 2

Assault (tort)

Answer 2

1) D places P in reasonable apprehension of immediate harmful or offensive contact to P’s person
2) Intent to bring about P’s apprehension

• apprehension = expectation of immediate contact
• knowledge of act required
• some overt act required - words alone are insufficient to create a reasonable apprehension of immediate harmful or offensive contact
• if words + act create a conditional threat to P - this is assault

Question 3

False imprisonment (tort)

Answer 3

1) D must commit an act resulting in P’s restraint
- - can be a threat
- - Can be failure to act where D had a duty to (e.g., if P has come under D’s control and it is impossible to leave without D’s assistance)
- - physical force directed at P, direct or indirect threat of force against P

2) P must be confined within a bounded area (no reasonable means of escape that P can reasonably discover)
* *P must be aware of the act of restraint OR harmed

3) Intent: D intended to confine/restrain P
4) Causation

Question 4

Intentional infliction of emotional distress

Answer 4

1) Either: intent that P suffer severe emotional distress, OR just recklessness - aware that there was a high likelihood that P would suffer severe emotional distress from her conduct
2) D must engage in extreme and outrageous conduct
3) Damages: P must suffer severe distress - but physical symptoms not necessary

Question 5

What are typical cases of outrageous conduct for liability for intentional infliction of emotional distress?

Answer 5

1) continuous or repetitive behavior
2) common carrier or innkeeper
3) P is fragile class: young child, elderly people, or pregnant
4) Knowledge and deliberate exploitation of known sensitivity

Question 6

Trespass to Land

Answer 6

1) Act of physical invasion (enters property or causes some physical object to land on property)
2) Act must interfere with P’s possession of real estate (incl. air above and soil below)
3) Intent to cause some physical thing to enter one’s land
- - **NOT the intent to harm - D does not need to intend to HARM the land

Question 7

Trespass to chattels

Answer 7

Intentional interference with P’s personal property - deliberately damaging or stealing
Slight interference

Remedy: Cost of repair

Question 8

Conversion

Answer 8

Intentional interference with P’s personal property - deliberately damaging or stealing

Significant interference
Remedy: fair market value of item at the time of conversion

Question 9

Affirmative defenses to intentional torts

Answer 9

1) consent
2) privileges
3) necessity

Question 10

Consent: Defense to tort

Answer 10

P consented to D’s tortious conduct

1) P must have capacity
2) Express consent - EXCEPT: under fraud or duress
3) Implied consent:
a) from custom & usage
b) implied consent from body language & surrounding circumstances

D’s conduct cannot exceed scope of consent.

Question 11

Defense to intentional tort: D’s actions were privileged (requirements?)

Answer 11

1) Proper timing
2) D must have reasonable belief that P’s threat is genuine
3) Symmetry:
- only allowed to use force proportional to the threat
- In a life threatening situation, you can use deadly force
- in cases of defense of property, deadly force is NEVER permitted
- cannot use deadly mechanical/automated devices to do what you are forbidden to do yourself

Question 12

Necessity defense - when can you use it? What liability results?

Answer 12

• Only available if tort alleged is a property tort: trespass to land, trespass to chattels, or conversion
• Public Necessity - D invades P’s property in an emergency, but does so to protect community or a significant group of people
• -> absolute defense - no liability for damages
• Private Necessity - D invades P’s property in an emergency, but only to protect D’s own interests (or family, or one single person)
• -> liable for compensatory/actual damages, but not for punitive/nominal damages

Question 13

Defamation

Answer 13

1) D must make a defamatory statement about P
2) Publication to a 3rd party
- - intentionally OR negligently (but only if it was foreseeable that a third party would overhear)
3) Damages:
- Libel - damages presumed
- Slander per se - damages presumed
- Other slander - P must prove damages, some economic loss

Public concern cases - P must prove 2 additional elements:

4) Falsity
5) Fault
- if P is a public figure: D’s statement was made with knowledge that it was false
- if P is a private figure - D made statement negligently

Question 14

What is a defamatory statement?

Answer 14

Tends to adversely affect P’s reputation, generally sounds factual in nature - not pure subjective opinion

Question 15

Defenses against defamation claims

Answer 15

1) Consent
2) Truth
3) Spousal privilege (absolute)
4) Qualified privileges

Question 16

Appropriation

Answer 16

Privacy tort: ∆ uses ∏’s name or picture for commercial purposes without permission

Exception: Newsworthiness

Question 17

Intrusion

Answer 17

Privacy tort: an invasion of the ∏’s seclusion in a way that would be highly offensive to the average person

∏ must be in a place where there is a reasonable expectation of privacy

Question 18

False light

Answer 18

Tort of false gossip

Widespread dissemination of a material falsehood (lies) about ∏ that would be highly offensive to the average person

Question 19

Disclosure Tort

Answer 19

Widespread dissemination of intimate, confidential personal information about ∏ that would be highly offensive to the average person

Exception: Newsworthiness

Question 20

2 Exceptions to ordinary standard of reasonable prudence

Answer 20

1) If ∆ has superior skill or knowledge regarding subject matter, then compare ∆ to a reasonably prudent person with superior kill or knowledge
2) where relevant, will incorporate physical attributes of ∆ into the reasonably prudent standard of care

Question 21

6 Special Duty Scenarios

Answer 21

1) Negligence claims against children
2) Negligence claims against professionals
3) Premises liability cases
4) Statutory standards of care/ Negligence per se
5) Duties to act affirmatively
6) Negligent infliction of emotional distress

Question 22

Negligence claims against children - what is the standard of care?

Answer 22

Usually, children under the age of 4 owe no duty of care (cannot conform his conduct to standard of care)

Older children: children must behave as a hypothetical child of similar age, education, experience, and intelligence acting under similar circumstances
– subjective standard, different for each child

Exception: When child is engaged in an adult activity, child is held to the adult standard of care - ordinary standard of the reasonably prudent person under the circumstances

Question 23

What is the duty owed to unknown/undiscovered trespasser?

Answer 23

Def: ∏ comes onto land without permission and ∆ has no idea that ∏ is there
➢ NO duty of care
➢ Unknown trespasser ALWAYS loses

Question 24

What is the duty owed to known/anticipated trespassers?

Answer 24

Def: ∏ is trespasser that the ∆ possessor knows or should know to be on the land

Standard: A possessor must warn the trespasser of, or make safe, any known, artificial (manmade) death traps (concealed, involve risk of death or serious bodily harm) on his land

Owes duty if condition is:
1) artificial; 2) extremely dangerous; 3) concealed; 4) known to D

Question 25

What is the duty owed to licensees?

Answer 25

Def: ∏s who enter property with permission for her own benefit/purpose, but do not confer economic benefit to landowner

Standard: ∆ owes a duty to licensees to warn of, or make safe a condition that is:
1) dangerous, 2) known to D, 3) nonobvious to licensee

Question 26

What is the duty owed to invitees?

Answer 26

Def: ∏ enters with in response to an express or implied invitation of the landowner

1) When premises are held open to the public for free - ex. churches, airports, museums
2) Enter premises for purpose connected with the business of the landowner - ex. stores

Standard: ∆ owes a duty to the invitee to:

1) warn of or make safe any nonobvious, dangerous conditions known to D
2) to make reasonable inspections to discover dangerous conditions, and make them safe (or warn)
- - Duty doesn’t exist where dangerous condition is SO obvious that the invitee reasonably should have been aware of it

Question 27

Negligence claims against professionals - what is the standard of care?

Answer 27

Standard of care: professional is obligated to exercise the skill & knowledge of average members of the same profession
➢ “conform to the professional practice” → collected wisdom in the profession
➢ the custom of the profession

2 important points:
➢ ∏s need expert witness to establish standard of care
➢ WRONG to say standard of care is to behave like a “reasonable doctor” → must behave similarly to their average colleagues

Question 28

What is the duty owed to child trespassers?

Answer 28

Possessor ∆ owes duty of ordinary reasonable care to prevent child trespassers from getting hurt

ASK: How likely is it that kids will trespass?
➢ Is there a kid magnet?
➢ If so, this is an “attractive nuisance” and possessor must take steps to make the land reasonably safe - will depend on how old the kid is

Question 29

In premises liability cases, how can D satisfy duty?

Answer 29

D has satisfied duty, and therefore no liability, if:

1) D fixes the problem – eliminate hazard
2) D gives a warning (yellow caution signs for spills!)

Question 30

Test for negligence per se

Answer 30

If D’s conduct violates a CRIMINAL statute (incl. fines) and this statute applies, this statute might replace the more general duty of care. For statutory standard to apply:

1) ∏ must demonstrate that he/she is a member of class of persons that statute is trying to protect
2) ∏ must demonstrate that the accident that occurred is within class of risks that statute is trying to prevent

• • this establishes a presumption of duty & breach
• • P must still prove actual & proximate causation to establish prima facie case

*Not civil statutes - ∏ should just sue directly under the statute

Question 31

Exceptions to negligence per se

Answer 31

Test for negligence per se satisfied, but we don’t use statute as standard of care if:
• statutory compliance would be more dangerous than statutory violation
• compliance was impossible
→ instead, use reasonably prudent standard

Question 32

When is there a duty to act affirmatively (rescue)?

Answer 32

NO DUTY to rescue anyone EVER no matter how egregious
• Gratuitous rescuers must behave with reasonable prudence - if careless, they can be liable for any harm they cause
(assume no Good Samaritan laws unless it says so)

EXCEPTIONS: There is a duty to rescue if:
1) If parties have a preexisting (formal) relationship
– Duty of common carriers
– Duty of places of public accommodation
2) If ∆ caused the peril
⇒ Then ∆ has a duty to use reasonable care to aid or assist, but never obligated to put your own life at peril

Question 33

Negligent Infliction of Emotional Distress

Answer 33

Duty: D has duty to avoid negligent infliction of emotional distress
Breach: ∆ behaved negligently
Causation: ∆’s conduct caused ∏’s distress
Damages: ∏ did not suffer any physical harm, but suffers physical symptoms from the distress

• • Near miss (Zone of Danger) cases - ∏ must show:
    i) ∆ created a risk of physical injury to the ∏ b/c ∏ was in the zone of physical danger (that ∏ almost got hurt)
    ii) Damages: MUST suffer physical symptoms from distress
• • Bystander cases – ∏ must show -
    i) direct victim and ∏ are close family members
    ii) ∏ was there when it happened; and
    iii) personally witnessed, observed, or perceived (heard) the incident as it happened
    iv) ∏ suffered physical symptoms from the distress (most states)
• *But modern trend is that physical symptoms are NOT necessary

– Relationship cases
∏ and ∆ are in a preexisting business relationship and it is highly foreseeable b/c of nature of the transaction that ∆’s careless performance will cause significant distress
Ex. false positive medical diagnosis by laboratory, negligent behavior by funeral establishment

Question 34

Res ipsa loquitur - what must ∏ show? And what is the result?

Answer 34

∏ must show:

i) the accident was a type normally associated with negligence
ii) accident which occurred would normally have been due to the negligence of someone in ∆’s position
- - Ex. showing that ∆ had exclusive control over the object

Result if ∏ succeeds: ∏ has made prima facie case and case must go to the jury to decide– doesn’t guarantee victory for the ∏

Question 35

Merged causes - how do we show factual causation?

Answer 35

Def: each negligent ∆ is responsible for a destructive force, the forces join together and both forces together hurt ∏. Each cause alone would’ve been sufficient to cause injury.

Substantial factor test: ∆’s breach was a factual cause if ∆ conduct was a substantial factor in causing the ∏’s harm

Question 36

Unascertainable causes - how do we show factual causation?

Answer 36

Def: multiple negligent parties that may have caused ∏’s harm, only ONE could have caused ∏’s harm, but it’s unclear which ∆ caused the harm

Result: Shifts burden of proof to each ∆ to show he’s not liable – if ∆s cannot do that, then they’re both jointly liable

Question 37

Proximate cause - 4 scenarios that are foreseeable as a matter of law:

Answer 37

These scenarios are foreseeable - proximate causation satisfied

1) intervening negligent medical treatment
- -> D is liable for additional injuries
2) intervening negligent rescue (Danger invites rescue)
- -> A rescuer is a foreseeable ∏ - if D negligently put himself in a position of danger that might invite rescue and rescuer gets injured, D is liable
3) intervening reaction/panic/protection forces
4) Subsequent disease or accident (leaving someone in a weakened condition, and P suffers second injury)

Question 38

Eggshell skull principle

Answer 38

DAMAGES

once ∆ has committed the other elements of the CoA, this ∆ is liable for ALL harm suffered by the ∏

Question 39

Pure vs. Partial/Modified comparative negligence

Answer 39

Pure comparative negligence – [RULE ON MBE]

• • ∏ can recover even if her fault is greater than that of the defendant’s fault
• • determine recovery strictly by the percentages, no matter how little
• • Ex. if ∏ was 90% negligent, she will recover 10% of her damages.

Partial/Modified comparative fault –

• • where ∏ can only recover if her fault is less than that of D’s fault
• • if ∏’s fault is over 50%, this is an absolute bar to recovery, gets nothing.
• • If ∏’s fault is less than 50%, her recovery is reduced by the percentage she was at fault

Question 40

Strict liability - 3 situations

Answer 40

1) Animals (with known peculiar dangerous propensity, or wild)
2) Abnormally dangerous activities
3) Defective Products

Question 41

4 Elements for products liability case based on strict liability

Answer 41

1) D is a merchant
- - one who routinely deals in the product sold - any merchant in the stream of commerce
2) Product is defective (manufacturing, design, information)
3) defect existed when product left D’s hands (presumed if product moved in ordinary channels of distribution)
4) P used the product in a foreseeable manner at the time of injury (not just the intended use, but any foreseeable uses)

Question 42

Who is a merchant? (Products liability)

Answer 42

NOT merchants:

a) Casual sellers – normal ppl
b) service providers – make products available to use collateral to the service, but the focus of transaction is the service being provided

Merchants:

c) Commercial lessors (rent goods/products to others) ARE considered merchants
d) All parties up the distribution chain

Question 43

Employer/employee - Vicarious liability?

Answer 43

Employer is vicariously liable for torts of employees committed within scope of employment, but not for intentional torts

Exceptions: employer IS vicariously liable for employee’s intentional torts if:
• If force is part of job (security guard, bouncer)
• If job generates friction/animosity (debt collector, repo man) and this person loses temper & commits intentional tort – there is vicarious liability
• If employee engages in intentional tort out of a motive of serving boss’s purpose

Look for: Employer can also be individually liable for negligent hiring

Question 44

Hiring party/Independent contractor - vicarious liability?

Answer 44

No vicarious liability -
EXCEPT hiring party IS vicariously liable if an independent contractor hurts a customer/invitee on the property (nondelegable duty) or IC’s acts that are inherently dangerous

Question 45

Automobile owner / driver - vicarious liability for driver’s torts?

Answer 45

At common law:
Car owner is NOT vicariously liable for torts of the driver

EXCEPT if there is a Principal/agent relationship → if driver is driving car to do an errand or something for the owner – then owner is vicariously liable

Now: many states have statutes that impose vicarious liability for torts of an immediate family member driving the car, or anyone driving the car with owner’s permission.

Question 46

2 situations of indemnification for tort liability

Answer 46

if ∆1 paid ∏ in full - can get indemnified if:

a) If ∆1 was held vicariously liable and paid the ∏, and active tortfeasor is in the case, then the vicarious party can get $ back from the active tortfeasor (vicarious party gets indemnified)
b) products liability cases – ∆1 is a retailer, can get indemnity from the manufacturer

Question 47

Attractive nuisance doctrine - What does ∏ need to show?

Answer 47

The ∏ must show that

(i) there is a dangerous condition present on the land of which the owner is or should be aware,
(ii) the owner knows or should know that young persons frequent the vicinity of this dangerous condition,
(iii) the condition is likely to cause injury, i.e., is dangerous, because of the child’s inability to appreciate the risk, and
(iv) the expense of remedying the situation is slight compared with the magnitude of the risk.

Question 48

If D is engaged in an abnormally dangerous activity, who will D be liable to?

Answer 48

• only foreseeable plaintiffs - would’ve foreseen a risk of harm to this person
• and harm must result from the normally dangerous propensity of the activity involved (the kind of danger to be anticipated from this activity)
• even if P was not directly injured by the activity, but was injured indirectly by the dangerous propensity (ex. injuries resulting from feeling from the danger of that activity)

Question 49

Elements of Nuisance Cause of Action

Answer 49

Def: Unreasonable substantial interference with plaintiff’s use and enjoyment of his land

a) Unreasonableness: P’s harm > D’s utility
b) Substantial = offensive or annoying to the AVERAGE person -
* *∏’s hypersensitivity is NOT considered
- - if this would not disturb an ordinary person, then there is NO nuisance

Balancing of interests and undue interference with ∏’s ability to use and enjoy his real estate → ∆ should be free to use his property as he wants to, but also shouldn’t have right to make neighbor miserable or render their property useless

Question 50

In a defamation case involving a public figure, what must plaintiff show in addition to regular defamation elements?

Answer 50

1) Falsity of the statement
2) Fault of the defendant – actual malice =
a. Knowledge that the statement was false; or
b. reckless disregard as to its truth or falsity (subjective test) – not measured by whether a reasonable person would have investigated, but whether this defendant entertained serious doubts as to the truthfulness of the publication, and then published recklessly anyway

Question 51

3 situations in which an employer is responsible for the intentional torts of the employee

Answer 51

1) force is part of the job
2) job generates friction/animosity and employee loses temper
3) employee engages in intentional tort out of motive of serving boss’s purpose

Question 52

When will a hiring party be liable for acts of an independent contractor?

Answer 52

• inherently dangerous activities
• duty is non-delegable b/c of public policy considerations

Otherwise: general rule is that hiring party is NOT vicariously liable for independent contractor

Question 53

Is one who republishes libel also liable for defamation?

Answer 53

Yes - doesn’t matter if she relied on the original defamatory statements

Question 54

In a defamation case involving a public concern but a private figure, what must plaintiff show in addition to regular defamation elements?

Answer 54

1) Falsity

2) Fault of D - negligence = D should have investigated the accuracy of his assertions but didn’t

Question 55

When are tortfeasors jointly and severally liable?

Answer 55

Merged causes situation:
When 2 or more tortious acts combine to proximately cause an INDIVISIBLE injury to P
- each was the actual and proximate cause of injury, and cannot quantify how much each tortfeasor contributed to the injury

Question 56

When you have a case with multiple defendants in a partial comparative negligence jurisdiction, how do you determine damages?

Answer 56

Each is entitled to recover as long as their fault is less than 50% (must be less than the combined fault of the other parties)

• then take each of their damages and reduce by the percentage of their own fault

Question 57

When is force allowed to recapture a chattel?

Answer 57

• only if it is in hot pursuit of one who has obtained possession wrongfully - only allowed to use reasonable force
• if owner lends someone something (person’s possession of the owner’s chattel began lawfully), owner can only recover it by peaceful means

Question 58

When will the owner of wild animals NOT be held strictly liable?

Answer 58

• *Strict liability imposed only if injured person is a licensee or invitee as long as injured person did nothing to bring about the injury
• • if injured person was a trespasser - no strict liability imposed
• *Trespassers can only recover under negligence theory:
• undisclosed trespassers are owed no duty - cannot recover under either strict liability or negligence
• known trespassers might be able to prove negligence - where landowner knows that trespassers are on land and fails to warn them of the animal

Question 59

Will a court grant a directed verdict for the defendant because of plaintiff’s own negligence?

Answer 59

No - court only reaches issue of P’s negligence after first establishing prima facie case of defendant’s negligence
- P’s negligence comes in when assessing P’s recovery/damages

Question 60

Who can be liable under a strict products liability action?

Answer 60

ONLY a merchant - for placing in commerce a product that is so defective (manufacturing, design, or warning) to be unreasonably dangerous
– a user of a defective product is NOT held to this same standard of liability - would need to prove user’s negligence

Question 61

What is the normal applicable standard of care?

Answer 61

Duty to behave like a reasonably prudent person under the circumstances

• • same physical characteristics as the D
• • but insanity, low IQ and lack of knowledge are not considered - deemed to have knowledge of things known by the average member of the community.
• EXCEPT: if D has superior knowledge, then expected to use that knowledge

Question 62

What special duties do doctors have?

Answer 62

– Duty to possess and exercise the knowledge & skill of a member of the profession (national standard)

– Duty to disclose risks of treatment - to provide patient with enough information about its risks to enable patient to make an informed consent to the treatment. If an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent to the treatment, the doctor has breached his duty

Question 63

Duty of care owed by common carriers and innkeepers?

Answer 63

• Duty to exercise a very high degree of care toward their passengers and guests
• Liable for slight negligence

Question 64

In a bailment relationship - what are the duties owed by the bailee?

Answer 64

If bailment is for sole benefit of the bailor - bailee is liable only for gross negligence

If bailment is for sole benefit of the bailee - bailee is liable even for slight negligence (ex. borrowing a car for free)

Mutual benefit - ordinary due care (ex. bailment for hire)

Question 65

In a bailment relationship - what are the duties owed by the bailor?

Answer 65

If bailment is for sole benefit of the bailee - bailor must warn bailee only of known dangerous defects in the chattel.
**NO DUTY with regard to UNKNOWN defects

If it is a bailment for hire - bailor owes duty to inform bailee of defects he knows of or SHOULD have known about from reasonable diligence
ex. loaning car to bailee for a fee

Question 66

Duty of care owed by landowner to people OFF the premises

Answer 66

Natural conditions - NO DUTY

Artificial conditions - generally, no duty, except:

1) Duty to prevent unreasonably dangerous artificial conditions/structures abutting adjacent land
2) Duty to take due precautions to protect passersby from dangerous conditions
* *Ice falling from the roof would fall under this

Question 67

Duty of care owed by landowner who opens his land to the general public for recreational purposes WITHOUT charging a fee

Answer 67

Landowner is NOT liable for injuries unless landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity

Question 68

What is landlord’s duty to tenant?

Answer 68

Only to WARN tenant about existing defects in the premises known to the landlord or has reason to know, and knows tenant is unlikely to discover it on reasonable inspection
– does not have to repair unless landlord covenanted to make repairs

Question 69

If plaintiff is trying to prove negligence per se b/c D violated a statute, when will D’s violation of the statute be excused?

Answer 69

• where compliance w the statute would cause more danger than the violation
• where compliance would be beyond D’s control (e.g., blind person crossing against the light)

Question 70

3 Requirements for finding an activity to be abnormally dangerous:

Answer 70

Requirements:

1) activity must create a foreseeable risk of serious harm
2) activity cannot be made reasonably safe - even when reasonable care is exercised by all actors; and
3) The activity is uncommon in the community

Question 71

Strict Liability - Requirements for prima facie case

Answer 71

1) Nature of D’s activity imposes an absolute duty to make safe
- - Abnormally dangerous activities, wild animals, products liability

2) Dangerous aspect of the activity is the actual and proximate cause of the plaintiff’s injury; and
- - harm must result from the “normally dangerous propensity of the activity”
- - Injuries caused by running away from the animal counts
- - D is liable only to foreseeable plaintiffs
- - Liability can be cut off by unforeseeable intervening forces

3) Plaintiff suffered damage

Question 72

Defenses to strict liability - Negligence of the ∏

Answer 72

Contributory negligence states
– if ∏ KNEW of the danger and his unreasonable conduct was the cause of the harm from the wild animal or abnormally dangerous activity, then this is a complete defense and ∏ cannot recover

Comparative negligence states
- will apply same comparative negligence rules as normal negligence

Question 73

Negligent hiring theory of liability

Answer 73

If employer hires employee and employee causes injury to third party, employer can be liable under negligent hiring theory
– ∏ must show that employer was negligent in hiring this employee – then employer is liable regardless of whether the injury occurred within the scope of employment

Ex. “A reasonable employer would have discovered the guard’s prior convictions and would not have hired him”

Question 74

Wrongful pregnancy action - Duty & damages?

Answer 74

Duty to the woman to properly perform contraceptive procedures

Damages: recovery for medical expenses, pain & suffering for labor, medical expenses to treat child’s disease
– Courts differ on recovery for future costs of raising the child

Question 75

What are the qualified privilege defenses to defamation?

Answer 75

The speaker was privileged in making the statement (i.e., no liability) if:

1) reports of official proceedings
2) statements were made in interest of speaker: defense of one’s actions, property, or reputation
3) statement made in the interest of the recipient (recipient requesting the information)
4) statements in the common interest of the publisher + recipient

Question 76

Cause of action: Intentional interference with business relations

Answer 76

1) There was a valid contractual relationship btwn ∏ and 3rd party (or valid business expectancy - no existing contractual relationship)
2) D knew of this relationship/expectancy
3) D’s intentional interference induced breach/termination of this relationship/expectancy
4) Damage to ∏

Defense: D’s actions might be privileged if he used proper attempt to get business - more likely in cases where it’s just a prospective business relationship/expectancy instead of an existing contract

Question 77

If a doctor did not get consent to do a medical procedure - what cause of action does the ∏ have?

Answer 77

Battery

Question 78

Intentional misrepresentation/Fraud vs. Negligent misrepresentation

Answer 78

Intentional misrepresentation / Fraud: 
1) D made a misrepresentation 
2) D was aware that statement is false 
3) D had intent to induce ∏'s reliance on the misrepresentation 
4) ∏actually relied on it (causation) 
5) Justifiable reliance
Issue: future events - cannot justifiably rely on a future event that is not under D's control
6) Damages 

Negligent misrepresentation:

• D owed duty to ∏
• Breach of duty = D negligently makes misrepresentation in a business/professional capacity
• ∏’s Justifiable reliance on misrepresentation
• *Confined to commercial transactions

Question 79

When does an intervening force cut off proximate cause?

Answer 79

• D’s conduct must be the proximate cause of ∏’s harm.
• A D will be liable for all harmful results that are the foreseeable results of his acts.
• An intervening force is one that came into motion after D’s negligent conduct, and also caused injury to the ∏.
• An intervening force will cut off D’s liability if it is determined that the intervening force was not foreseeable.

Question 80

Last clear chance doctrine

Answer 80

Applies only in contributory negligence state
- If ∏ was contributorily negligent, ∏ can rebut by arguing that D had the last clear chance to avoid the accident and failed to do so - so D is liable for negligence

1) Inattentive peril - where ∏, through his own negligence, puts himself in position of harm but COULD have avoided the harm.
– D is only liable if he had ACTUAL knowledge of ∏’s predicament
Ex. ∏ was crossing the street while texting and didn’t look

2) Helpless peril - where ∏, through his own negligence, puts himself in position of harm and cannot get himself out.
- - D is only liable if he had actual knowledge or should have known of ∏’s predicament

Question 81

Manufacturer’s defenses in STRICT products liability action:

Answer 81

1) assumption of risk - ∏ voluntarily and unreasonably encountered a known risk
2) product misuse
3) adequate warnings

**contributory negligence is NO defense to SL - if ∏ merely failed to discover defect, or ∏’s misuse was reasonably foreseeable - manufacturer is still strictly liable.

Question 82

What is the common law rule for vicarious liability of car owners for torts committed by another person driving his car?

Answer 82

At common law: no liability for torts committed by the driver

Now: many states have statutes that impose vicarious liability for torts of an immediate family member driving the car, or anyone driving the car with owner’s permission.

Question 83

Property damage from trespassing animals

Answer 83

Owner of trespassing animals is strictly liable for property damage they cause as long as it was reasonably foreseeable

Question 84

In a strict products liability action, what effect does ∏’s own contributory negligence have on manufacturer’s liability?

Answer 84

In comparative negligence states: apply regular comparative negligence rules to strict products liability actions –> ∏’s own negligence reduces his recovery

In contributory negligence states:

• • ∏’s negligence in failing to discover or guard against danger is not a defense.
• • If ∏ voluntarily & unreasonably encountered a known risk = Complete defense

Question 85

What must ∏ show in a products liability action based on negligence?

Answer 85

∏ must show:

1) negligent conduct by the D leading to
- - For retailers and wholesalers: due care is satisfied by a cursory inspection of the product
2) the supplying of a defective product by the D
- - e.g., manufacturing defect, design defect
- - Defective food products are treated as manufacturing defects

**Intermediary’s negligent failure to discover defect does not cut off manufacturer’s liability

Question 86

Duties of a Lessor - Exceptions

Answer 86

General rule: lessor is not liable for unreasonably dangerous conditions (this tort liability comes with occupation/control)

Exceptions: Lessor/LL will be liable for -

• • Covenant to repair - if LL covenants to make repairs, he will be liable for unreasonably dangerous conditions
• • Common areas - unreasonably dangerous conditions
• • Latent defects - LL must warn T of existing defects in the premises of which LL knows or has reason to know, and knows that T is not likely to discover on reasonable inspection
• • Assumption of repairs
• • Public use / short-term lease - if LL leases premises knowing the lessee intends to admit the public, the LL is subject to liability for unreasonably dangerous conditions existing at the time he transfers possession, and length of the lease indicates that T will not repair