Torts

Question 1

Intentional Torts: General Elements

Answer 1

• Intentional tort actions require: (1) a voluntary act; (2) committed with intent (either specific or general intent); AND (3) causation (“but for” causation or conduct was a substantial factor).
• Specific intent exists when a person desires that his conduct cause the resulting circumstances. General intent exists when a person is substantially certain that his conduct will cause the resulting circumstances

Question 2

Doctrine of Transferred Intent

Answer 2

• Under the Doctrine of Transferred Intent, the intent to harm one party can be transferred to another party that was injured when:

(1) the defendant had the intent to commit a crime or a tort against one particular individual; AND
(2) if in the act of trying to accomplish that tort another person is injured. The doctrine of transferred intent only applies to the intentional torts of battery, assault, false imprisonment, trespass to land, and trespass to chattels

Question 3

Battery

Answer 3

• A defendant is liable for Battery when there is (1) an intentional, (2) harmful or offensive contact, (3) with the plaintiff’s person (including anything connected to the plaintiff).
• Bodily harm is the physical pain, illness, or physical impairment to another’s body. A bodily contact is offensive if it offends a reasonable sense of personal dignity (analyzed under the reasonable person standard). A claim may be supported by nominal damages; plaintiff need not suffer actual damages

Question 4

Assault

Answer 4

• A defendant is liable for Assault when there is (1) an intentional act, (2) that causes the plaintiff to be placed in reasonable apprehension, (3) of imminent harmful or offensive contact with the plaintiff’s person.
• The reasonable apprehension element requires the plaintiff to be BOTH: (i) aware of the defendant’s act; AND (ii) believe that the defendant is able to commit the act. A claim may be supported by nominal damages; plaintiff need not suffer actual damages

Question 5

False Imprisonment

Answer 5

• A defendant is liable for False Imprisonment when he (1) intentionally acts, (2) to restrain plaintiff to fixed boundaries (one with no reasonable means of escape), AND (3) the plaintiff is conscious of the confinement or is harmed by it (the extent of the false imprisonment is generally not relevant). It is immaterial whether the act directly or indirectly causes the confinement.
• The restraint may be accomplished through threats, and DOES NOT need to be physical or stationary (only in one place). A claim may be supported by nominal damages; plaintiff need not suffer actual damages

Question 6

Intentional Infliction of Emotional Distress

Answer 6

• A defendant is liable for Intentional Infliction of Emotional Distress if: (1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct was extreme and outrageous (conduct that transcends all bounds of decency); (3) the defendant’s act caused extreme emotional distress (causation); AND (4) the plaintiff actually suffered severe emotional distress (damages). An act is reckless if it’s a deliberate disregard of a high risk that emotional distress will follow.
• Where such conduct is directed at a third person, the defendant is liable if he intentionally or recklessly causes severe emotional distress: (a) to a member of such person’s immediate family who is present at the time (whether or not such distress results in bodily harm); OR (b) to any other person present, if such distress results in bodily harm

Question 7

Trespass to Land

Answer 7

• A defendant is liable for the intentional tort of Trespass to Land if (1) he intentionally, (2) either (a) enters the land in the possession of another; (b) causes an object or a third person to enter the land of another; (c) remains on the land; or (d) fails to remove an object from the land that he is under a duty to remove.
• Intent to trespass is NOT required; the ONLY intent required is that the defendant intended to enter/remain on the subject land. The plaintiff must be a possessor of the land at the time the trespass takes place (i.e. owner or tenant).
• A claim may be supported by nominal damages; plaintiff need not suffer actual damages. If plaintiff suffers actual damages, he may recover either: (a) the decrease in value of the property; OR (b) the cost to repair the property

Question 8

Trespass to Chattels & Conversion

Answer 8

• A person is liable for Trespass to Chattels when he (1) intentionally interferes with another’s personal property (including damage or preventing a party from using the property), AND (2) the amount of damage is small.
• A person is liable for the tort of Conversion if the amount of interference is substantial, in which the converter is liable for the full market value of the chattel involved. o To determine if there is substantial interference, the court will consider the following factors: (i) extent and duration of dominion/control; (ii) intent to deprive the owner of possession; (iii) the tortfeasor’s good faith; (iv) extent and duration of resulting interference; (v) harm done to the chattel; and (vi) inconvenience and expense caused.
• Mistaken ownership of the property is NOT a defense to either tort.

Question 9

Intentional Tort Defenses: Consent

Answer 9

• Consent is a defense to intentional torts, and may be express or implied through words or conduct. Consent need not be communicated to the actor. o Apparent consent is an effective defense when words or conduct are reasonably understood to be intended as consent, such as with customary practice or the person’s failure to object. Implied by law consent occurs under certain special circumstances, such as medical emergencies.
• Defendant’s actions CANNOT exceed the bounds of the consent given. The consenting party must have capacity, and consent may be withdrawn at any time. Some courts hold that a person cannot consent to a criminal act

Question 10

Self-Defense/Defense of Others

Answer 10

• A defendant is NOT liable for harm to the plaintiff if he:
(1) reasonably believed that the plaintiff was going to harm him or another; AND (2) used reasonable force that was necessary to protect himself or another

Question 11

Necessity

Answer 11

• A defendant is NOT liable for harm to the plaintiff’s real or personal property if defendant’s acts were (1) necessary (or reasonably appeared to be necessary), (2) to prevent serious harm to a person or property. Necessity is applicable only to intentional torts against property.
• Public necessity is when the defendant acts for the public good and is a complete defense. Private necessity is an incomplete privilege (the defendant will be liable for any damages caused unless the purpose of his acts were to help the plaintiff), and occurs when defendant is protecting his own or a few other’s property interests

Question 12

Privilege to Arrest

Answer 12

• A privilege to arrest is a defense to false imprisonment. A privilege to arrest is generally regulated by statute, but is more likely to occur when the crime is serious (a felony) and if the defendant directly observed the crime when making the arrest.
• To make a citizen’s arrest for a misdemeanor, the detainee must have (1) committed an act that constitutes a breach of the peace, (2) in the presence of the arresting citizen

Question 13

Shopkeeper’s Privilege to Detain for Investigation

Answer 13

• In most jurisdictions, shopkeepers have the privilege of (1) temporarily detaining, (2) a person reasonably suspected of theft, (3) in or near their store, (4) for the purpose of an investigation. This privilege is a defense to false imprisonment. Reasonable non-deadly force may be used to detain the individual, when a request to remain has been made and refused

Question 14

Negligence Elements

Answer 14

• A prima facie case for negligence requires: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty; (3) the breach was the actual and proximate cause of the plaintiff’s injuries; AND (4) damages. To make a prima facie case, a party must offer sufficient evidence so that a reasonable jury could find that ALL of the above elements have been met

Question 15

Duty: To Whom a Duty is Owed

Answer 15

• Under the Andrews view, a duty of care is owed to all foreseeable plaintiffs. However, under the Cardozo view, a duty of care is only owed to foreseeable plaintiffs who are within the zone of danger

Question 16

Duty: Affirmative Duty to Act

Answer 16

• Generally, there is NO duty to act affirmatively. However, an affirmative duty to act will arise in certain circumstances: (1) A pre-existing relationship between the parties (i.e. parent-child, landowner-entrant); (2) The defendant put the plaintiff in peril; (3) The defendant has undertaken to rescue the plaintiff; OR (4) A duty is imposed by law

Question 17

Standard of Care: Reasonable Person Standard

Answer 17

• Every person owes a duty to act as a reasonable prudent person would act under like circumstances. A reasonable prudent person takes appropriate measures to avoid foreseeable risks. This duty of care is owed to all foreseeable plaintiffs. Following community customs and statutory requirements may be relevant as to what conduct is reasonable, but are NOT dispositive. The reasonable person standard also applies to business entities

Question 18

Standard of Care: Children

Answer 18

• Children are capable of negligence, but are held to a different standard than adults. Children are held to the standard of care of a hypothetical child of similar age, experience, and intelligence acting under similar circumstances.
• If a child is engaged in an adult activity, the child has a duty to act as a reasonable adult would under the circumstances with respect to that activity. The following are deemed adult activities: driving a car, tractor, motorcycle, or other motorized vehicle (such as motorbikes/scooters and snowmobiles)

Question 19

Standard of Care: Medical Doctors

Answer 19

• A medical doctor is held to the degree of care and skill of the average qualified practitioner. Most courts analyze the doctor’s conduct under national standards rather than those in the doctor’s locality or community.
• A doctor has a duty to obtain informed consent from his patient before treatment, which requires the doctor to disclose risks of treatment that a reasonable patient would want to know

Question 20

Standard of Care: Professionals & Attorneys

Answer 20

• A professional (lawyers, accountants, engineers, architects, psychologist/psychotherapist, nurses) owes a duty to act with the knowledge and skill as an average member of that profession practicing in a similar community. Expert testimony is generally required to show that the professional complied or breached the standard of care.
• One holding himself out as a specialist should be held to the standard of care and skill of the average member of the profession practicing the specialty, taking into account the advances in the profession

Question 21

Standard of Care: Land Owner/Possessor’s Duty to Entrants

Answer 21

• Some states require landowners to exercise reasonable care to ALL entrants upon his land to take appropriate measures to avoid foreseeable risks.   
• Other states still determine what duty of care is owed by a landowner by considering the type of person (trespasser, licensee, or invitee) is on the property. o Undiscovered Trespasser (one who enters the land of another without permission):  In most jurisdictions, no duty is owed by the landowner. o Anticipated Trespasser (one who enters the land of another without permission, but which may be expected by the landowner):  The landowner must:  (1) use reasonable care in operations on the property; AND (2) warn of (or make safe) highly dangerous artificial conditions that the landowner knows of.
o Licensee (invited on the owner’s property as social guests):  The landowner must:  (1) exercise reasonable care in operations on the property; AND (2) warn of (or make safe) dangerous conditions that are known to the landowner, but are not apparent to a guest.  A person is a licensee if he reasonably believed, based on the owner’s conduct or words, that he was permitted to enter the owner’s land. o Invitee (invited onto the property for the owner’s benefit, such as a business):  The landowner owes all the duties he would to a licensee.  In addition, the landowner has a duty to make reasonable inspections of the property to find and make safe non-obvious dangerous conditions.  A landowner is liable for failing to warn of dangerous conditions that would have been discovered upon reasonable inspection. 
• The same rules apply to a possessor of land (i.e. a tenant or tenant business owner

Question 22

Attractive Nuisance Doctrine

Answer 22

• Under the Attractive Nuisance Doctrine, a land owner/possessor owes a duty to child trespassers to make the premises reasonably safe or warn of hidden dangers on his land.
• A land owner/possessor is labile for the harm to a trespassing child if: (1) he knows (or should know) of a dangerous artificial condition on his land that is likely to cause death or serious bodily injury; (2) he knows (or should know) that children are likely to frequent the area; (3) children are unlikely to discover the condition or appreciate the risks involved; (4) the risk of harm outweighs the expense of making the condition safe; AND (5) he fails to exercise reasonable care in eliminating the danger or protecting children from it. The attractive nuisance doctrine is less likely to apply if the child engages in an adult activity

Question 23

Negligence Per Se

Answer 23

• Under the doctrine of negligence per se, a statute may be used to substitute the duty of care. If applicable, the duty and breach elements are established when the defendant breaches the statute. Then the plaintiff need only prove causation and damages.
• To use negligence per se, plaintiff must show: (1) that the statute’s purpose is to prevent the type of harm that the plaintiff has suffered; AND (2) that the plaintiff is in the class of persons the statute seeks to protect.
• There are two exceptions when the standard of care will NOT be substituted for the statute even when the above test is met. The first is when the defendant’s compliance with statute would have been more dangerous than the violation of it. The second is when compliance with the statute is impossible

Question 24

Res Ipsa Loquitor

Answer 24

• When the breach element of negligence is very difficult to prove, the court may allow a plaintiff to use the doctrine of “res ipsa loquitur” (which means the thing speaks for itself) to prove the breach element.
• To be applicable, a plaintiff must show: (1) that her injury is of a sort that typically does not occur in the absence of negligence; (2) the thing/object which caused her injury was in the defendant’s exclusive control; (3) the negligence is within the scope of duty defendant owed to plaintiff; AND (4) that the plaintiff DID NOT cause or contribute to the injury – in most jurisdictions

Question 25

Actual and Proximate Cause

Answer 25

• A plaintiff must show that the defendant’s conduct was BOTH the actual and proximate cause of the injury. Actual cause is the “but for” cause – but for defendant’s negligence, plaintiff would not have been injured. Under the Substantial Factor Test, something that is a substantial factor in bringing about the injury is an actual cause (even if the injury had multiple causes). Proximate cause is the legal cause, which means that the injury must have been a foreseeable result of the breach. A defendant is NOT liable for harms that are too remote from the defendant’s conduct

Question 26

Intervening Causes

Answer 26

• Any act that occurs after the defendant’s breach that contributes to the harm is an intervening cause. Intervening causes that are dependent on (a natural reaction to) the defendant’s wrongful acts are usually foreseeable. If the intervening cause resulted in an unexpected injury to the plaintiff, it is usually deemed unforeseeable and will absolve the defendant of liability to the plaintiff.
• Intervening medical malpractice is ALWAYS deemed foreseeable. Intervening criminal acts are usually not foreseeable UNLESS: (a) the defendant should have anticipated the criminal act; OR (b) if the defendant’s conduct makes the criminal act more likely to occur. Courts have held that injuries sustained from a plaintiff running from the danger are foreseeable. Similarly, an injured rescuer’s injuries have been deemed foreseeable under the “danger invites rescue” doctrine

Question 27

Eggshell Plaintiff Rule

Answer 27

• The Eggshell Plaintiff Rule means that a tortfeasor takes his victim as he finds him. Thus, a defendant is liable for ALL harm a plaintiff suffers as a result of his conduct, even if the plaintiff suffered from a preexisting mental or physical condition that made the harm different or greater than what a normal person might suffer

Question 28

Comparative Negligence & Contributory Negligence

Answer 28

• Under pure comparative negligence, the plaintiff’s negligence or assumption of risk will NOT bar recovery. However, it is a factor in determining the percentage of fault of each party, and will reduce the plaintiff’s recoverable damages by the percentage of his own fault.
• In a partial comparative negligence jurisdiction, if a plaintiff contributed less than 50% to his own injury, then his damages are reduced by the percentage of fault that is attributable to him. However, if the plaintiff contributed more than 50%, then the plaintiff’s claim is barred.
• In a contributory negligence jurisdiction, a plaintiff CANNOT recover damages if he contributed to his own injury. However, two exceptions to this rule exist: (a) when the defendant had the last opportunity to avoid the accident; OR (b) if the defendant was reckless. Contributory negligence is only applied in a few states

Question 29

Assumption of Risk

Answer 29

• Assumption of risk is a defense to negligence, and applies if the plaintiff (1) voluntarily assumed (2) a known risk. The assumption of risk may be: (a) express – by agreement; OR (b) implied – where an average person would appreciate the risks involved.
• Under the Professional Rescuer/Fireman’s Rule, a professional rescuer or firefighter CANNOT bring a cause of action against someone whose negligence caused injuries to the rescuer (i.e. a fire). The professional rescuer assumes the risk of injury related to the job. This rule also extends to police officers

Question 30

Negligent Infliction of Emotional Distress

Answer 30

• Generally, there are three scenarios where a plaintiff may recover for negligent infliction of emotional distress: (a) a near miss case; (b) a bystander claim; or (c) in certain situations where a pre-existing relationship exists.
• In order to recover in a near miss case: (1) there must be negligence by the defendant, (2) which creates a foreseeable risk of physical injury, (3) the plaintiff must be in the zone of danger, AND (4) the plaintiff must manifest physical symptoms.
• In order to recover in a bystander claim: (1) there must be negligence by the defendant; (2) the plaintiff must be a contemporaneous witness to a negligent bodily injury inflicted on a close family member (i.e. parent, child, spouse); AND (3) the plaintiff must manifest physical symptoms (some jurisdictions do not require this). A few jurisdictions require that the plaintiff be in the zone of danger to recover.
• The last scenario where a plaintiff can recover is where: (1) there is a pre-existing relationship between the plaintiff and defendant; AND (2) the negligent act can foreseeably cause distress. Recovery is rare, and is usually only available in egregious situations

Question 31

Vicarious Liability of Employer: Doctrine of Respondeat Superior

Answer 31

• Under the doctrine of respondeat superior, an employer is vicariously liable for an employee’s negligent acts if the employee was acting within the scope of employment.
• An employee acts within the scope of employment when: (a) performing work assigned by the employer; OR (b) engaging in a course of conduct subject to the employer’s control. Factors to determine if conduct is within the scope of employment include whether: (i) it is the kind the employee is employed to perform; (ii) it occurs substantially within the authorized time and space limits; and (iii) it is motivated (in whole or part) by a purpose to serve the employer. Additionally, conduct is within the scope of employment if it is of the same general nature as that authorized, or incidental to the conduct authorized. Conduct is NOT outside the scope of employment merely because an employee disregards the employer’s instructions.
• An employee’s act is NOT within the scope of employment when: (1) it occurs within an independent course of conduct; AND (2) is not intended by the employee to serve any purpose of the employer.
• An employee’s intentional torts are NOT generally within the scope of employment UNLESS the act: (a) was specifically authorized by the employer; (b) was driven by a desire to serve the employer; OR (c) was the result of naturally occurring friction from the type of employment

Question 32

Vicarious Liability: Employee vs. Independent Contractor

Answer 32

• A party is generally NOT vicariously liable for the torts of an independent contractor. An independent contractor is a person who contracts with another to do something for him, but who is not controlled nor subject to the other’s right to control with respect to his performance. The contractor may or may not be an agent.
• Generally, if the principal has the right to control the manner and method in which the job is performed, then the person is deemed to be an employee of the principal. In contrast, a person subject to less extensive control is considered an independent contractor. Other important factors include: (1) the degree of the employer’s control; (2) whether the pay was hourly or by the job; (3) whether the employer furnished the tools or other items needed for the job; (4) whether the job was for the benefit of the employer’s business; AND (5) the length of the working relationship

Question 33

Joint and Several Liability

Answer 33

• In a jurisdiction permitting joint and several liability, if multiple defendants are the proximate cause of a single indivisible harm, then the plaintiff may recover the entire amount of his damages from any single defendant (but may not receive a double recovery). A defendant who pays more than his fair share of the damages may bring an action for contribution against the other defendants for the difference

Question 34

Survival Acts & Wrongful Death Claims

Answer 34

• Statutory Survival Acts permit a tort action to continue after the death of one or more of the parties, and include recovery of damages up to and until the party’s death. Available damages are those that the deceased would have been entitled to if he/she had survived.
• Wrongful Death Claim: The executor of a decedent’s estate (or the decedent’s spouse/children), may assert a wrongful death claim against a negligent tortfeasor for damages resulting in the death of the decedent. The party asserting the claim must prove that the underlying tort led to the decedent’s death. Damages are limited to only those suffered from the loss of the decedent, and include loss of support, loss of services, loss of consortium, funeral and burial expenses, and loss of companionship. Punitive damages are NOT recoverable is a wrongful death claim, and damages DO NOT include those that are recoverable under a survival action

Question 35

Defamation

Answer 35

• The elements required to prove a prima facie case of defamation are (1) a false defamatory statement of fact of and concerning the plaintiff made by the defendant, (2) publication by the defendant to a third party, AND (3) damages. The statement must be one of fact, NOT a statement of opinion.
• For slander (an oral defamatory statement), the plaintiff ALWAYS needs to prove special damages, unless the statement falls within one of the slander per se categories. If the statement falls within a slander per se category, then the plaintiff DOES NOT need to prove special damages, unless the defamatory nature of the statement is not clear on its face. o The four slander per se categories are: (a) impugning the business integrity or skill of the plaintiff, (b) a statement of unchastity about an unmarried woman, (c) a statement that the plaintiff has or had a loathsome disease, or (d) attributing to the plaintiff a crime of moral turpitude.
• For libel (defamation embodied in some permanent format), the plaintiff does not need to prove special damages, unless (1) the statement does not fall within one of the slander per se categories AND (2) the defamatory nature of the statement is not clear on its face.
• It is important to note that if the plaintiff is a public figure (either having injected herself into a public controversy or having achieved widespread notoriety) a heightened standard is applied to prove defamation, which requires the plaintiff to prove that the statement was false AND that the defendant acted with malice (recklessness as to the truth of the statement or with knowledge of its falsity). • If the plaintiff is a private figure speaking about a matter of public concern, the plaintiff need only prove that the statement is false and that the speaker was negligent.
• A party can claim qualified privilege as a defense to defamation when their speech serves a socially useful purpose. Examples where a qualified privilege would be valid are when an individual is recommending an employee, someone is reporting a wrongdoing to an agency, or reporting facts to a police officer. But, the speaker must be speaking in good faith AND must not be reckless as to the truth of his statement or say something affirmatively untrue. An absolute privilege exists for defamatory statements made about the parties or those participating in a judicial proceeding. In such situation, the declarant is immune from civil liability for defamation

Question 36

Privacy Torts: Misappropriation of Name or Picture

Answer 36

• Misappropriation of name or picture occurs when the defendant (1) used the plaintiff’s name or likeness, (2) for the defendant’s commercial advantage (usually limited to promoting a product or service). Newsworthiness is a defense to misappropriation

Question 37

Privacy Torts: False Light

Answer 37

• False light occurs when the defendant (1) causes widespread dissemination, (2) of the plaintiff’s beliefs, thoughts, or actions, (3) in a false light, (4) that would be highly objectionable to a reasonable person. If a plaintiff is a public figure or involves a matter of public concern, the plaintiff MUST show actual malice (knowledge of the falsity or reckless disregard)

Question 38

Privacy Torts: Intrusion of Privacy

Answer 38

• Intrusion of privacy occurs when: (1) the defendant intrudes into the private affairs of the plaintiff; (2) a plaintiff has a reasonable expectation of privacy; AND (3) the intrusion is highly objectionable to a reasonable person (i.e. reading private mail, illegal wiretapping). Communication to a third-party of the private affairs is NOT needed for the claim to be actionable

Question 39

Privacy Torts: Public Disclosure of Private Facts

Answer 39

• Public disclosure of private facts occurs when the defendant (1) caused widespread dissemination, (2) of truthful private information, (3) that would be highly objectionable to a reasonable person. Newsworthiness is a defense unless actual malice is present. The defense of absolute privilege applies for information taken from official public documents

Question 40

Intentional Interference with Business Relations

Answer 40

• To state a prima facie case for intentional inference with business relations, a plaintiff must show that: (1) there was a contract or business expectancy; (2) the defendant knows of the contract/expectancy; (3) the defendant intentionally induces another party to breach the contract or terminate the relationship; (4) a breach occurs; AND (5) the plaintiff suffered damages

Question 41

Intentional & Negligent Misrepresentation

Answer 41

• Intentional Misrepresentation: To state a prima facie case for intentional misrepresentation, a plaintiff must show: (1) misrepresentation of a material fact by the defendant; (2) the defendant knew that the statement was false (scienter); (3) intent of the defendant to induce the plaintiff; (4) actual and reasonable reliance by the plaintiff; AND (5) damages.
• Negligent Misrepresentation: To state a prima facie case for negligent misrepresentation, a plaintiff must show: (1) a misrepresentation (false statement of a material fact) by the defendant; (2) supplied for the guidance of others in a business transaction; (3) the defendant knew or should have known that the information was supplied to guide the plaintiff in his business transactions; (4) the defendant was negligent in obtaining or communicating the false information; (5) actual and reasonable reliance by the plaintiff, AND (6) the false information proximately caused plaintiff’s damages.
• Concealment (an affirmative act intended to keep another from learning of a fact) is equivalent to a misrepresentation (a false statement of fact). Generally, there is no duty to disclose information, UNLESS: (a) a fiduciary relationship exists; (b) it is necessary to correct an earlier mistake; (c) active concealment of a material fact occurs; OR (d) a person is selling real property and knows material facts that affect the value of the property (that the buyer is unaware of and cannot reasonably discover).

Question 42

Abuse of Process

Answer 42

• An action for abuse of process is available when (1) one party wrongfully uses the court process, (2) against another for an improper purpose, (3) an act or threat is used to accomplish that purpose, AND (4) damages result

Question 43

Malicious Prosecution

Answer 43

• A malicious prosecution claim requires the following elements: (1) initiation of criminal proceedings against the plaintiff (i.e. filing a police report); (2) the claim was initiated for an improper purpose (any purpose other than to obtain justice); (3) the claim was NOT supported by probable cause (reasonable belief that the defendant was guilty); (4) the claim ended in the plaintiff’s favor; AND (5) the plaintiff suffered damages. Prosecutors are immune from liability

Question 44

Public and Private Nuisance

Answer 44

• A public nuisance is (1) an unreasonable interference, (2) with the health, safety, or property rights, (3) of the community. To recover damages, the injured party MUST show actual damages. To constitute a public nuisance, the nuisance must affect a considerable number of people or an entire community or neighborhood.
• A private nuisance is (1) a substantial and unreasonable interference, (2) with a person’s use or enjoyment of her property. The nuisance must be offensive, inconvenient, or annoying to a reasonable person.
• Plaintiff will be entitled to damages or an injunction to prevent the nuisance (if damages are insufficient). The primary defenses to the tort of nuisance are: (1) Coming to the Nuisance – a residential landowner knowingly came into a neighborhood with the nuisance; and (2) Statutory Compliance.

Question 45

Strict Liability: Abnormally Dangerous Activity

Answer 45

• A defendant is strictly liable for damages caused to a plaintiff when engaging in an abnormally dangerous activity (known as an ultrahazardous activity). An abnormally dangerous activity is one that: (1) is not of common usage in the community; AND (2) creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors. • Examples of an abnormally dangerous activity include blasting and the use of explosives

Question 46

Liability for Manufacturing Defect, Design Defect, & Failure to Warn

Answer 46

• Under Strict Products Liability, a commercial supplier of a defective product is subject to strict liability for any harm caused by the product, regardless of any wrongdoing or negligence. A claim for strict products liability requires the plaintiff to show: (1) the product was defective (manufacturing defect, design defect, or failure to warn) when it left the hands of the manufacturer or seller; (2) the product was not altered when it reached the plaintiff; (3) the product caused an injury to plaintiff when it was being used in an intended or unintended foreseeable use; AND (4) the defendant is a commercial supplier who routinely deals in goods of this type.
• The plaintiff DOES NOT have to be a purchaser of the product to assert a claim for strict products liability (no privity is required). Damages for personal injuries and property damage may be recovered. Recovery solely for economic loss is NOT allowed.
• Proving that the product was defective is based upon one of three theories of strict products liability: (a) manufacturing defect, (b) failure to warn, OR (c) design defect.o Evidence of a manufacturing defect requires that (1) the product differs from the intended design (some defect in manufacturing/production); AND (2) it is more dangerous than if made properly. A harmful ingredient in a food product constitutes a defect if a reasonable consumer would not expect the food product to contain that ingredient. o Evidence of a failure to warn requires that (1) the plaintiff was not warned of the risks regarding use of the product, (2) which are not obvious to an ordinary user but known to the designer/manufacturer. A warning must be proportionate to the risk involved with normal use of the product. o A design defect exists if there was a way to build the product that: (1) is safer; (2) is more practical; AND (3) has a similar cost. When a design defect is alleged, the jury or court must balance the alternative designs available (including their cost and effect on utility) against the risk to consumers.
• Definition of Commercial Supplier: A strict products liability suit may only be brought against a commercial seller or distributor of goods. A commercial seller or distributor is any person or entity who is engaged in the business of selling goods of the type (routinely sells such goods). Casual sellers and service providers are NOT commercial suppliers, and a strict products liability action CANNOT be maintained against them. Any commercial seller in the distribution chain (including a retailor or wholesaler) is deemed to be a commercial supplier, and a strict products liability action may be brought against them regardless if there is privity with the plaintiff

Question 47

Products Liability: Liability for Ne

Answer 47

• A negligence claim based on a defective product requires: (1) a duty owed to the plaintiff; (2) a breach of that duty; (3) causation (actual and proximate cause); AND (4) damages.
• Product suppliers (manufacturers, distributors, retailors, sellers) owe a duty to all foreseeable users of its products, and MUST act as a reasonably prudent supplier of the same type of product. A breach will be found when a supplier’s negligence results in the supply of a defective product. Suppliers are liable for ALL foreseeable misuses of their product; a misuse will only cut the chain of liability if it was not foreseeable. Any manufacturer or seller may be liable, BUT it must be shown that their conduct was negligent (i.e. caused the defect, their reasonable inspection of the product would have discovered the defect).
• Damages for personal injuries and property damage may be recovered. Recovery solely for economic loss is NOT allowed.

Question 48

Liability for Breach of Warranty

Answer 48

• A products liability case may be based on a breach of express warranty or an implied warranty. o The Implied Warranty of Merchantability requires that ALL goods sold by a merchant (a person dealing in goods of the kind) MUST be fit for their ordinary purpose. In such action, the only issue is whether the product was merchantable when sold (fault or how the product became unmerchantable is irrelevant). o An Implied Warranty of Fitness for a Particular Purpose is created when: (1) a seller knows or has reason to know of the buyer’s particular purpose for which the goods are required; AND (2) the buyer relies on the seller’s skill or judgment to select or furnish suitable goods. If the above elements are met, the goods MUST be fit for the particular purpose of the buyer, otherwise there is a breach of warranty. o A seller is liable for a breach of an Express Warranty she makes to a buyer. An express warranty is created when (1) a seller makes an affirmation of fact, promise, or description, or provides a sample, (2) which relates to the goods, and (3) it becomes part of the basis of the bargain.
• When a breach occurs, the seller may be held liable for any damages resulting from personal injury, property damage, and economic loss. Disclaimer of a warranty is usually not effective for a personal injury action

Question 49

Products Liability: Indemnification

Answer 49

• Where there is more than one tortfeasor, responsibility for damages may be shifted among those involved. For example, in a products liability case, a retailer may receive indemnification from the manufacturer if: (1) both are held jointly liable; AND (2) the manufacturer responsible for the defect

Question 50

Compliance with Government Regulations

Answer 50

• A manufacturer’s failure to comply with a government regulation conclusively proves a defect. However, compliance with a government regulation is NOT conclusive, but rather evidence that the product is not defective.