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NM Bar Exam > Torts > Flashcards

Torts Flashcards

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1
Q

What are the intentional torts?

A

Battery

Assault

False imprisonment

Intentional infliction of emotional distress

Trespass to land

Trespass to chattel

Conversion

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2
Q

Which intentional torts require proof of damages?

A

Intentional infliction of emotional distress

Trespass to chattel

Conversion

Do not require damages: battery, assault, false imprisonment, trespass to land,

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3
Q

What are the rules for intent?

A

Can be either specific or general

  • Specific - the actor intentionally acts to bring about the specific consequences
  • General - the actor knows with substantial certainty that the consequences will result

Everyone has capacity to commit a tort (incapacity, incompetency, young minor is not a defense)

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4
Q

How do you satisfy causation?

A

When the defendant’s action was a substantial factor in bringing about the injury

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5
Q

What are the elements of battery?

A

Harmful or offensive contact

  • Harmful - if it causes actual injury, pain, or disfigurement
  • Offensive - if it would be considered offensive to a reasonable person

To the plaintiff’s person (including attachments to the plaintiff, such as clothing)

Intent; and

Causation

  • Note that damages are not required
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6
Q

What are the elements of assault?

A

An act by defendant creating a reasonable apprehension in plaintiff

  • Plaintiff must have knowledge of the apprehension
  • If defendant has the apparent ability to commit a battery, this suffices as reasonable apprehension. Words alone are not sufficient; words must be coupled with conduct

Of immediate harmful or offensive contact to plaintiff’s person

  • Harmful - if it causes actual injury, pain, or disfigurement
  • Offensive - if it would be considered offensive to a reasonable person

Intent; and

Causation

  • Note that damages are not required
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7
Q

What are the elements of false imprisonment?

A

An act or omission on the part of defendant that confines or restrains plaintiff to a bounded area

  • Plaintiff must know of the confinement or be harmed by it

Intent

Causation

  • Note that damages are not required
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8
Q

What are the elements for intentional infliction of emotional distress?

A

An act by defendant amounting to extreme and outrageous conduct

  • Conduct that transcends all bounds of decency. Can become extreme and outrageous if it is:
    • Continuous in nature; or
    • Directed toward a certain type of plaintiff (children, elderly, supersensitive adults if the sensitivity is known to defendant, etc.)
  • Common carriers and innkeepers may be liable for even “gross insults”

Intent or recklessness

Causation; and

Damages (severe emotional distress)

  • Proof of injury not required. The more outrageous the conduct, the less proof of damages required

*Exam tip: IIED is a fallback. If another alternative in the question is a tort that will allow plaintiff to recover, it should be chosen over this alternative

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9
Q

What are the elements for intentional infliction of emotional distress on a bystander?

A

Either the prima facie elements for IIED or

(1) she was present when the injury occurred, (2) she is a close relative of the injured person, and (3) the defendant knew facts (1) and (2)

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10
Q

What are the elements for trespass to land?

A

Physical invasion of plaintiff’s real property; intangible matters brings case for nuisance

  • May be a person or object

Intent; and

  • Need only intend to enter on land; does not need to intend to trespass; mistake is not a defense because he need not know that the land belongs to another

Causation

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11
Q

What are the elements for trespass to chattel?

A

(1) An act that interferes with plaintiff’s right of possession;
* Interference may be intermeddling (damaging) or dispossession (depriving possession)
(2) Intent;

  • Intent to do the act that interferes with right of possession; not intent to damage
  • Mistaken belief that defendant owns the chattel is no defense

(3) Causation; and
(4) Damages (actual, not nominal)

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12
Q

What are the elements of conversion?

A

(1) An interference with plaintiff’s right of possession that is so serious as to warrant the defendant pay the chattel’s full value
* Wrongful acquisition, wrongful theft, substantially changing, severely damaging, etc.
(2) Intent
(3) Causation
(4) Damages (interference serious enough to warrant that defendant pay the chattel’s full market value)
* May also recover the chattel (replevin)

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13
Q

What are the defenses to intentional torts?

A

Consent; express (actual) or implied (apparent)

  • Ask: (1) was there a valid consent (no fraud)?, (2) did the defendant stay within the scope of consent?
  • Capacity is required to give consent; incompetents, drunken people, and very young children are incapable of consent (differs from intent)

Self-defense, defense of others, and defense of property

  • The person must reasonably believe a tort is about to be committed (i.e. about to be attacked), and the level of defense made must be reasonably necessary to prevent the harm
    • If more force than reasonably necessary is used, then defense is lost
  • This privilege only available for preventing the commission of a tort; but one can act in defense when in hot pursuit
  • A reasonable mistake is allowed for defense of self or others, but not for defendant’s right to recapture chattel (but shopkeepers have a privilege to detain)
  • Deadly force or serious bodily harm only permissible when one reasonably believes a serious threat of bodily harm is about to ensue
    • Deadly force is not allowed for defense of property; if someone breaks into a home deadly force is only allowed for defense against serious injury or death
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14
Q

What are the elements for defamation?

A

(1) defamatory language,
(2) “of or concerning” the plaintiff,
(3) publication by defendant to a third person, and
(4) Damage to plaintiff’s reputation

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15
Q

What are the rules for defamation of a public concern?

A

If defamation involves a matter of public concern, the plaintiff must also show

(5) falsity of the defamatory language, and
(6) fault on the defendant

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16
Q

What is defamatory language?

A

Language tending to adversely affect one’s reputation

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17
Q

What is of or concerning the plaintiff for defamation?

A

A reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff

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18
Q

What is publication?

A

Communication of the defamation to a third person who understands it.

  • Can be made either intentionally or negligently

It is the intent to publish, not the intent to defame, that is the requisite intent

If the defamatory language is made only to the plaintiff, the general rule is no defamation

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19
Q

What is the difference between libel and slander?

A

Libel - the written or printed publication of defamatory language

  • Plaintiff does not need to prove special damages
  • General damages are presumed

Slander - spoken defamation

  • Plaintiff must prove special damages unless it is slander per se (e.g. adversely reflect one’s conduct in a business or profession; one has a loathsome disease; one is or was guilty of a crime involving moral turpitude; or a woman is unchaste)
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20
Q

What is meant by falsity and fault for a matter of public concern?

A

Falsity - statement made was false

Fault - type of fault depends on whether plaintiff is public or private figure

  • A person is a public figure by achieving pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy
  • If the person is not a public figure but is matter of public concern, then must show either:
    • Actual malice, in which damages are presumed for libel or slander per se; or
    • Negligence and actual injury (not necessarily pecuniary interest)
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21
Q

What type of fault must plaintiff prove if public figure?

A

If person is a public figure, then must prove actual malice (knowledge that the statement was false or reckless disregard to whether it was false)

  • Subjective test

If actual malice, then damages are presumed for libel or slander per se

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22
Q

What is meant by a matter of public concern?

A

Courts look at content, form, and context of publication

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23
Q

What is meant by actual injury for defamation?

A

Not limited to economic damages; may include impairment to reputation and personal humiliation as long as the plaintiff presents evidence of such damages (i.e. no presumed damages)

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24
Q

What are the differences for defamation must plaintiff prove depends on private/public person and public/private concern?

A

Type of Plaintiff/Defamation

Fault Required

Damages Recoverable

Public official or public figure

Actual malice (knowledge of falsity or reckless disregard as to truth or falsity)

Presumed damages under common law rules (and punitive damages where appropriate)

Private person/matter of public concern

At least negligence as to statement’s truth or falsity

Damages only for proved “actual injury” (if plaintiff proves actual malice, presumed and punitive may be available)

Private person/matter of private concern

No fault as to truth or falsity need be proved (unless required by state law)

Presumed damages under common law rules (and punitive damages where appropriate)

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25
Q

What are defenses to defamation?

A

Consent - plaintiff consented to publication

Truth - where plaintiff does not need to prove falsity (i.e. purely private matter), defendant may prove truth as a complete defense

  • Note: plaintiff does not need to prove falsity in a common law defamation case b/c damages are presumed to be false; defendant has burden to prove truth as a defense

Absolute privilege - defendant is protected for remarks made in judicial proceedings, by legislators during proceedings, by federal executive officials, “compelled” broadcasts, and between spouses

Qualified privilege - reports of official proceedings, statement in interest of publisher, statement in interest of recipient,

  • Qualified privilege may be lost if (1) statement is not within the scope of the privilege, or (2) it is shown that the speaker acted with actual malice.

Defendant bears the burden of proving a privilege exists

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26
Q

What are the types of invasion to right of privacy?

A

Appropriation of plaintiff’s picture or name

Intrusion on plaintiff’s affairs or seclusions

Publication of facts placing plaintiff in a false light

Public disclosure of private facts about plaintiff

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27
Q

What is appropriation of plaintiff’s picture or name?

A

Unauthorized use of plaintiff’s picture or name for defendant’s commercial advantage

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28
Q

What is intrusion on plaintiff’s affairs or seclusions?

A

Prying or intruding must be highly offensive to a reasonable person, and the matter of the intrusion must be private

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29
Q

What is publication of facts placing plaintiff in false light?

A

When one attributes to plaintiff views plaintiff does not hold or actions plaintiff did not take, and must be highly offensive to a reasonable person under the circumstances

  • If a matter of public interest, then must prove actual malice
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30
Q

What is public disclosure of private facts about plaintiff?

A

Public disclosure about private information (matters of public record are not sufficient)

Must be highly offensive to a reasonable person of ordinary sensibilities

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31
Q

What is required to prove interference with a business relationship?

A

(1) Existence of a valid contractual relationship or valid business expectancy, (2) defendant had knowledge of relationship or expectancy, (3) intentional interference, and (4) damages

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32
Q

What is required to prove malicious prosecution?

A

(1) Institution of criminal proceeding, (2) termination in plaintiff’s favor, (3) absence of probable cause, (4) improper purpose, and (5) damages
* Prosecutors are immune from liability

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33
Q

What is required to prove abuse of process?

A

(1) Wrongful use of process for an ulterior purpose, and (2) definite act or threat against plaintiff to accomplish an ulterior purpose

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34
Q

What is intentional misrepresentation?

A

Fraud or deceit

Elements: (1) misrepresentation of a material past or present fact, (2) scienter, (3) intent to induce plaintiff to act or refrain from acting in reliance on misrepresentation, (4) causation (actual reliance), (5) justifiable reliance, (6) damages (must suffer actual pecuniary loss)

There are no defenses to intentional misrepresentation

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35
Q

What is scienter?

A

When defendant made the statement, she knew or believed it was false or that there was no basis for the statement

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36
Q

What is negligent misrepresentation?

A

Misrepresentation that is not intentional

Elements” (1) misrepresentation in a business or professional capacity (2) breach of duty toward a particular plaintiff, (3) causation, (4) justifiable reliance on misrepresentation, and (5) damages

Liability will only attach if reliance by the plaintiff could have been foreseeable

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37
Q

What are the elements for a prima facie case of negligence?

A

A duty on the part of the defendant to conform to a specific standard of conduct for protection of plaintiff against an unreasonable risk of injury

A breach of the duty

Actual and proximate cause of plaintiff’s injuries

Damage

38
Q

What is the standard for a duty of care?

A

The reasonable person standard - an objective standard of what a reasonable person would do in similar circumstances

  • Custom or usage may be used to determine standard of care, but does not control

If the conduct creates an unreasonable risk of injury in the position of the plaintiff, then a general duty extends from defendant to plaintiff (and likely breached the duty)

A duty of care is owed to all foreseeable plaintiffs

The extent of the duty is determined by the applicable standard of care

  • A defendant should know his physical handicaps and may breach his duty if he goes beyond his physical capabilities
  • A defendant who has knowledge or experience superior to an average person has a duty to exercise that experience
  • A defendant’s mental deficiencies are no excuse; still measured against the reasonable person standard
39
Q

What are the rules for particular standards of conduct?

A

A professional or someone with special occupational skills is required to possess the knowledge and skill of a member of that profession or occupation

  • For doctors, most courts apply a national standard of care, not local.

Children are held to the standard of a child of like age, education, intelligence, and experience; this is a subjective test

  • Children engaged in adult activities may be required to conform to an adult standard of care

Common carriers and innkeepers are held to a very high degree of care; they are liable for slight negligence

40
Q

What are the standards for bailments?

A

The bailor transfers to the bailee possession of the chattel but not title (i.e. loan a car)

Duties owed by bailee - standard of care of bailee depends on who benefits

  • (1) for sole benefit of the bailor, low standard of care
  • (2) for sole benefit of the bailee, high standard of care
  • (3) for mutual benefit (i.e. bailment for hire), ordinary standard of care
  • The modern trend applies a duty of ordinary care under the circumstances, whereby the type of bailment is just one factor taken into account

Duties owed by bailor - for a sole benefit of the bailor, the bailor must inform the bailee of known, dangerous defects in the chattel. For a bailment of hire, she must inform bailee of defects which she is or should be aware

41
Q

What are the duties owed to trespassers?

A

No duty is owed to an undiscovered trespasser

For discovered or anticipated trespassers, the landowner must (1) warn or make safe concealed, unsafe artificial conditions known to landowner involving risk of death or serious bodily harm, and (2) use reasonable care in “active operations” on the property

No duty is owed for natural conditions or less dangerous artificial conditions

Easement and license holders owe a duty of reasonable care to trespassers

42
Q

What are the duties owed to licensees?

A

A duty to (1) warn of or make safe dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm and that licensee is unlikely to discover, and (2) exercise reasonable care in “active operations”

No duty to inspect or repair

A licensee is one who enters for her own purpose or business, including social guests

43
Q

What are the duties owed to invitees?

A

The same duties to licensees plus a duty to make reasonable inspections to discover nonobvious dangerous conditions and make safe

Invitees are ones who enter “by invitation” for a connected business purpose or as members of the public when land is held open to the public

  • If recreational land used by the public, not liable for injuries unless willfully and maliciously failed to guard or warn of dangerous condition or activity

A vendor must disclose concealed, unreasonably dangerous conditions to vendee of which he knows or has reason to know

44
Q

What is the attractive nuisance doctrine?

A

A duty of care to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous conditions on the property.

  • Typically an artificial condition but occasionally a natural condition

Plaintiff must show

  • (1) a dangerous condition that the owner knows or should be aware of
  • (2) the owner knows or should know children frequently visit the vicinity of the condition
  • (3) the condition is likely to cause injury (dangerous because of the child’s inability to appreciate the risk); and
  • (4) the expense of remedying the situation is slight compared with the magnitude of the risk

The child does not need to be attracted onto the land by the dangerous condition, nor is attraction alone enough to establish liability

45
Q

What are the rules for statutory standards of care?

A

A statute providing for criminal penalties, including fines, may replace the duty of care if (1) plaintiff is within the protected class and (2) the statute was designed to prevent the type of harm suffered (negligence per se)

Establishes first two requirements in a prima facie case: duty and breach of duty

46
Q

What is the duty to protect against negligent infliction of emotional distress?

A

Plaintiff must (1) be within the zone of danger, and (2) suffer physical symptoms from the distress

  • The zone of danger means distress was caused by a threat of physical impact
  • Physical symptoms may include severe shock to the nervous system
    • A minority of states have dropped the physical symptoms requirement
47
Q

When can a bystander allege negligent infliction of emotional distress when outside zone of danger?

A

(1) closely related to person injured
(2) present at the scene of injury, and
(3) personally observed or perceived the event

Minority of states have dropped the physical symptoms requirement

48
Q

What are the rules for an affirmative duty to act?

A

By acting, one has assumed a duty to act (once defendant undertakes aid, he must do so with reasonable care)

  • Good Samaritan statutes exempt doctors, nurses, etc. from liability (but not from gross negligence)

One has a duty to assist someone he has negligently placed in peril

Common carriers, innkeepers, and shopkeepers have a duty of reasonable care to aid or assist their patrons

49
Q

What is res ipsa loquitur?

A

Plaintiff must show:

  • (1) the accident causing the injury is a type that would not normally occur unless someone was negligent, and
  • (2) the negligence is attributable to the defendant
    • Can be shown by demonstrating that the instrumentality causing the injury was in exclusive control by the defendant

Res ipsa establishes a prima facie case; no directed verdict may be given for defendant

  • Plaintiff can still lose if negligence is rejected by trier of fact
  • But grant directed verdict if plaintiff has failed to establish res ipsa and failed to present some other evidence of breach of duty
  • Deny plaintiff’s directed verdict unless plaintiff established negligence per se and there is no issue of proximate cause
50
Q

What is actual cause?

A

Actual cause is cause in fact. Several tests exist to establish cause in fact:

  • But for test - an act or omission that would have not caused the injury but for the act
  • Joint causes - substantial factor test - conduct is a cause in fact if it was a substantial factor in causing the injury
    • Used where several causes bring about the injury, and any one alone would have been sufficient to cause the injury
  • Alternative causes approach - applies when there are two acts, only one of which causes the injury, but it is not known which one. The burden of proof shifts to defendants, and each must show that his negligence is not the actual cause
  • Under the joint causes approach, both parties caused the harm. Under the alternative causes approach, although both parties acted negligently, only one caused the harm
51
Q

What is proximate cause?

A

Defendant is not liable unless the cause of injury was foreseeable

  • Often times questions on proximate cause will be whether a party is entitled to summary judgment; deny summary judgment if there is any issue of foreseeability for the jury

Defendant is not liable for unforeseeable harmful results not within the risk created by defendant’s conduct.

52
Q

What is a dependent intervening force and an independent intervening force?

A

Dependant intervening force - A natural response or reaction to defendant’s conduct

  • Negligence of rescuers, efforts to protect the person or property of oneself or another, injurieis cause by another reacting to defendant’s actions, subsequent diseases caused by a weakend condition, and subsequent accident substantially caused by the original injury

Independent intervening force - Not a natural response or reaction to defednant’s conduct, but still foreseeable

  • Negligent acts of third persons, crimes and intentional torts of third person, and acts of God

Both are foreseeable intervening forces in which defendant is liable

53
Q

What are the rules for foreseeable intervening forces?

A

Defendant is liable where his negligence caused a foreseeable harmful response or reaction from a dependent intervening force or created a foreseeable risk that an independent intervening force would harm plaintiff

In a rare case where a totally unforeseeable result was caused by a foreseeable intervening force, most courts hold defendant not liable

54
Q

What are the rules for unforeseeable intervening forces?

A

Defendant is liable where his negligence increased the risk of a foreseeable harmful result and that result is ultimately produced by an unforeseeable intervening force

  • This rule does not apply where the unforeseeable intervening force was a crime or intentional tort of a third person

Intervening forces that produce unforeseeable results (results not within the increased risk created by defendant’s negligence) are generally deemed unforeseeable and superseding.

  • Superseding forces break the causal connection
55
Q

What are the standards for foresseable and unforseeable intervening forces in a nutshell? IMPORTANT

A

If the harmful result is foreseeable, then the defendant is liable

  • It does not matter if the intervening force was foreseeable or unforeseeable

If the harmful result was not foreseeable, then defendant is not liable

  • The intervening force is a superseding force

Applies to analysis of proximate cause

56
Q

What is the standard for punitive damages?

A

When conduct is wanton and willful, reckless, or malicious

57
Q

What is contributory negligence?

A

Negligence on the part of the plaintiff that contributes to her injuries (a defense)

  • Not a defense to wanton and willful conduct or intentional tortious conduct

Completely bars plaintiff’s right to recovery

  • Last clear chance can be a rebuttal to the defense of contributory negligence
58
Q

What is comparative negligence?

A

The trier of fact weighs plaintiff’s negligence and reduces damages accordingly

Partial comparative negligence bars plaintiff’s recovery if his negligence was more serious than defendant’s (or in some states as serious as defendant’s)

Pure comparative negligence states allow recovery no matter how great plaintiff’s negligence was

  • Assume pure comparative negligence applies unless the question states otherwise

Is a defense to wanton and willful conduct, but not a defense to intentional torts

Last clear chance is not used in comparative negligence jurisdictions

59
Q

What is assumption of risk?

A

When plaintiff assumes the risk of any damage caused by defendant’s acts. Plaintiff must have (1) known of the risk, and (2) voluntarily proceeded in the face of the risk

May be assumed by express agreement or implied

Denies plaintiff recovery

60
Q

What is the rule for trespassing animals?

A

An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals

61
Q

What are the strict liability rules for personal injuries?

A

An owner is strictly liable to licensees and invitees for injuries caused by wild animals (even those kept as pets)

An owner is not strictly liable for injuries caused by domestic animals, including farm animals, unless he knows of a particular animal’s dangerous propensities that are not common to the species.

Injury caused by the normally dangerous characteristics of domestic animals (e.g. bulls or honeybees) does not create strict liability

Strict liability is not available to trespassers.

However, a landowner may be liable on intentional tort grounds for injuries inflicted by vicious watchdogs

62
Q

What are the rules for abnormally dangerous activities?

A

(1) The activity must create a foreseeable risk of serious harm even when reasonable care is exercised; and
* No amount of reasonable care will relieve the actor of strict liability
(2) The activity is not a matter of common usage in the community

Other points:

  • Liability extends only to foreseeable plaintiffs and the harm must result from the kind of danger to be anticipated from the activity or animal, including harm caused by fleeing from the danger
  • Strict liability will not apply if injury is caused by something else (e.g. dynamite truck blows a tire and hits a pedestrian)
63
Q

What are the defenses against strict liability?

A

Contributory negligence is no defense if plaintiff has failed to realize the danger or guard against it

  • It is a defense if plaintiff knew of the danger and his unreasonable conduct was the cause of harm

Assumption of the risk is a defense

Most comparative negligence states apply comparative negligence rules to strict liability

64
Q

What is products liability?

A

Liability of a supplier of a defective product for injury caused by the defective product.

Privity between plaintiff and defendant is not required

65
Q

What are the theories of product liability?

A

Intent

Negligence

Strict liability

Implied warranties of merchantability and fitness for a particular purpose

Representation (express warranty and misrepresentation)

66
Q

What are the elements for all products liability theories?

A

(1) A defect, and
(2) Existence of the defect when the product left the defendant’s control

67
Q

What are the types of defects?

A

Manufacturing Defect - when a product emerges from manufacturing different from and more dangerous than the products that were made properly

  • Plaintiff must show the product failed to perform as safely as an ordinary consumer would expect
  • The defendant must anticipate reasonable misuse

Design Defect - when all products of a line are the same but have dangerous propensities

  • Must show the defendant could have made the product safer without serious impact on the price or utility (the “feasible alternative” approach)

Inadequate Warning- When the manufacturer fails to give adequate warning as to the risk involved that may not be apparent to users.

  • Must also show the feasible alternative approach
68
Q

When is strict liability based on intent?

A

When defendant intended the consequences or knew they were substantially certain to occur, and caused damages

The most likely tort is battery

69
Q

When is strict liability based on negligence?

A

Must show prima facie case of negligence: (1) duty, (2) breach, (3) actual and proximate cause, and (4) damages

Breach also includes (a) negligent conduct of defendant leading to (b) the supplying of a defective product

Plaintiffs can include users, consumers, and bystanders, and anyone who supplies the product may be held liable, but usually a manufacturer, wholesaler, or retailer

Physical injury or property damage is required; economic loss is not enough

70
Q

What are the duties of inspection in negligence cases?

A

Retailers and wholesalers can usually satisfy their duty by a cursory inspection, thus difficult to hold them liable

  • A wholesaler or retailer’s negligent failure to discover a defect does not supersede the original manufacturer’s negligence unless the intermediary’s conduct exceeds ordinary foreseeable negligence
71
Q

When can plaintiff invoke res ipsa loquitur for strict liability?

A

In a manufacturing defect case when the defect is something that would not usually occur without the manufacturer’s negligence

72
Q

When is liability based on strict tort liability?

A

(1) A commercial supplier of a product

  • Casual sellers are not commercial suppliers and cannot be liable under strict liability
  • Retailers may be liable even if they have no opportunity to inspect

(2) Producing or selling a defective product
(3) Actual and proximate cause, and
* The product must reach the plaintiff without substantial alteration ; the defect must exist when the product left defendant’s control
(4) Damages
* Physical injury or property damage; not economic loss

73
Q

What defenses exist for strict liability?

A

For contributory negligence, it is no defense where plaintiff merely failed to discover the defect or guard against its existence, or where plaintiff’s misuse was reasonably foreseeable

Assumption of the risk is a defense

For comparative negligence, courts will apply the same comparative negligence rules

Disclaimers are irrelevant for strict liability if personal injury or property damage occur

74
Q

What is the implied warranty of merchantability?

A

Whether the goods are of average acceptable quality and are fit for the ordinary purpose for which they are used

75
Q

What is the implied warranty for a particular purpose?

A

Arises when the seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller’s skill and judgment in selecting goods.

76
Q

What constitutes breach for the implied warranties?

A

If the product fails to live up to either of the above standards, the warranty is breached and the defendant will be liable

Actual and proximate causes are the same as in ordinary negligence

Can recover personal injury, property damage, and purely economic loss

Disclaimers are generally rejected in personal injury but upheld for economic loss

77
Q

What is an express warranty?

A

Any affirmation of fact or promise concerning goods that become part of the basis of the bargain

Plaintiff need only show that the product did not live up to its warranty

Causation, damages, and defenses are the same as for implied warranties

A disclaimer is effective only in the unlikely event that it is consistent with the warranty

78
Q

What is misrepresentation of fact?

A

A seller is liable when (1) the statement was of a material fact concerning quality or use of goods (mere puffery is insufficient); and (2) seller intended to induce reliance by the statement of fact

  • Justifiable reliance on the buyer is required. Actual cause is shown by reliance.

Liability is usually based on strict liability but may also arise for intentional or negligent misrepresentation

79
Q

What is a private nuisance?

A

A (1) substantial and (2) unreasonable interference with another private individual’s use or enjoyment of property that he possesses or has a right of immediate possession

  • Substantial interference is interference that is offensive, inconvenient, or annoying to the average person in the community. Hypersensitivity or specialized use of property will not suffice
  • Unreasonable interreference means the severity of the inflicted injury must outweigh the utility of defendant’s conduct
    • Courts balance and take into account that everyone is entitled to use their own land in a reasonable manner
80
Q

What is a public nuisance?

A

An act that unreasonably interferes with the health, safety, or property rights of the community

Recovery by a private party is available only if he suffered unique damages

81
Q

What are the remedies for nuisance?

A

Damages

Injunctive relief (when damages are unavailable or inadequate)

Abatement by self help

  • Must first give notice to defendant and his refusal to act
  • Only necessary force may be used
  • For public nuisance, only a public authority or a private party who has suffered some unique damages can seek an injunction or abatement
82
Q

What is the meaning of “come to a nuisance”?

A

One may come to a nuisance and, thereafter, pursue an action. It is generally not a bar to plaintiff’s action unless she came to the nuisance for the sole purpose of bringing a harassing lawsuit

83
Q

What is vicarious liability?

A

Liability that is derivately imposed, meaning another person is liable to a third party for the tortfeasor’s act.

84
Q

What is the doctrine of Respondeat Superior?

A

A master/employer will be liable for tortious acts committed by the servant/employee within the scope of employment

A minor frolic or detour is permissible, but if it extends in time or geographic area then the employer is not liable

An employer is not liable for intentional torts unless they are within the scope of employment (i.e. bouncer, bill collector, furthering business by removing customers)

Employers may be liable for their own negligence by negligently selecting or supervising the employees (but this is not vicarious liability)

85
Q

What is a frolic and a detour

A

Frolic - a major departure in time or area; employer is not liable

Detour - a minor deviation for his own purpose; still acting withn scope of employment and employer is liable

86
Q

Are employers liable for independent contractors?

A

Generally, no. Two exceptions:

  • The independent contractor engaged in inherently dangerous activities, or
  • The duty, because of public policy, is nondelegable

Employer may be liable for negligently selecting or supervising the independent contractor

In a bailor/bailee relationship, the bailor may be liable for negligent entrustment

87
Q

What is the standard for parent/child relationship?

A

A parent may be liable for negligently allowing a child to engage in an activity

If the child’s past conduct shows the child’s tendency to injure others, the parent may be liable for lack of due care in exercising control over the child

88
Q

What is joint and several liability?

A

When two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable (i.e. liable to plaintiff for the entire damage incurred)

  • Defendants can file claims against each other for portion of liability (they have contribution rights against the other defendants)

If the injury is divisible, each defendant is liable only for the identifiable portion

When two are more defendants act in concert and injure plaintiff, each is jointly and severally liable for the entire injury. This is so even if the injury is divisible.

89
Q

What is satisfaction and release?

A

Satisfaction - recovery of full payment.

  • Only one satisfaction is allowed. Until there is a satisfaction, however, one may proceed against all jointly liable parties

Release - a release of one tortfeasor does not discharge other tortfeasors unless it is expressly provided for in the release agreement

90
Q

What is contribution?

A

It allows a defendant who pays more than his share of damages under joint and several liability to have a claim against any other jointly liable parties for the excess (i.e. it apportions responsibility).

Comparative contribution is imposed in proportion to the relative fault of the various defendants

Equal shares means apportionment is equal regardless of degrees of fault (minority view)

Contribution is not allowed among intentional tortfeasors

91
Q

What are federal governmental tort immunities?

A

Under the Federal Tort Claims Act, the U.S. has waived immunity for tortious acts. However, immunity will still attach for (1) assault, (2) battery, (3) false imprisonment, (4) false arrest, (5) malicious prosecution, (6) abuse of process, (7) libel and slander, (8) misrepresentation and deceit, and (9) interference with contract rights

Most states have also waived immunity to the same extent

About half of the states have abolished municipal immunity to the same extent

The majority of jurisdictions have eliminated charitable immunity

Public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose. Liability attaches, however, for ministerial acts

NM Bar Exam (14 decks)

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