Torts Flashcards
1
Q
What are the requirments to establish a prima facia case of negligence?
A
Rule 1499: In order to establish a prima facie case of negligence, a plaintiff must establish the existence of a duty owed by a defendant to the plaintiff, a breach of that duty, that such breach was a proximate cause of injury to the plaintiff, and damages suffered by the plaintiff (e.g. if a plaintiff’s house burns down from a fire that appears to have started in his toaster oven, and this is the only evidence available in his negligence action against the store, then the store can successfully move for summary judgment against the plaintiff since there is no evidence of negligence that can be attributed to the store since a prima facie case in negligence (unlike strict liability) requires facts sufficient to show a defendant’s negligence. In addition, the plaintiff cannot resort to res ipsa loquitur since the store did not have exclusive control over the instrumentality). [2013]
2
Q
What is the rescue doctrine?
A
Rule 1500: Under the rescue doctrine, if a tortfeasor creates a circumstance that places the tort victim in danger, the tortfeasor is liable not only for the harm caused to the victim, but also the harm caused to any person injured in an effort to rescue that victim, BUT a tortfeasor does not owe a duty of care to a professional rescuer for injury that was sustained by the very negligence that occasioned the rescuer’s presence and that was within the scope of the hazards inherent in the rescuer’s duties (e.g. if A’s car suffers a tire blowout and a truck driver stops to help and then gets hit by another speeding car, the negligent tire manufacturer can be held liable for the truck driver’s injuries because the truck driver was not a professional rescuer). [2011]
3
Q
Circumstantial evidence can be used to show what?
A
Rule 1501: In absence of direct evidence of negligence, circumstantial evidence (evidence of one fact from which another fact may be inferred) can sometimes be used to show that the defendant breached a duty of care if the claim is supported by sufficient circumstantial evidence to permit the inference of negligence (e.g. if a person with no history of kidney problems suffers kidney failure after receiving 70mg pills from a pharmacist even though the prescription clearly states 50mg pills, and kidney failure is a known side-effect if someone overdoses on these pills, a jury can reasonably conclude that the plaintiff would not have been injured but for the pharmacist’s negligence and the pharmacy, as the pharmacist’s employer, is also liable under the theory of respondeat superior). [2011]
4
Q
Is a statute that makes the federal gov’t liable only for negligence and no other torts constitutional?
A
Rule 1502: If a statute makes the federal gov’t liable only for negligence and no other torts, the statute is constitutional (e.g. if a P sues the fed gov’t for killing his cows, and the trier of fact finds no evidence of negligence on the part of the fed gov’t, the P’s claim must be dismissed). [2008]
5
Q
While a negligent tortfeasor is not generally liable for the tortious or criminal acts of 3rd parties resulting from the tortfeasor’s negligent conduct, the tortfeasor will be found liable if what?
A
Rule 1503: While a negligent tortfeasor is not generally liable for the tortious or criminal acts of 3rd parties resulting from the tortfeasor’s negligent conduct, the tortfeasor will be found liable if the 3rd party tortious or criminal acts were foreseeable by the tortfeasor (3rd party actions are regarded as within the scope of the created risk rather than superseding). [2006]
6
Q
a medical professional’s duty of care extends only to the patient UNLESS?
A
Rule 1504: Unless a patient poses a threat to others, a medical professional’s duty of care extends only to the patient, and non-patients will have no cause of action against the medical professional for the acts of the patient. [2006]
7
Q
If a person has an unforseen medical emergency while driving, will they be negligent?
A
Rule 1505: A person is not negligent if he has an unforeseen medical emergency (such as a heart attack) while driving his car and he crashes into another vehicle. [2006] Rule 1508: A person who suffers a heart attack while driving and hits a child will not be found negligent if the driver took reasonable care while driving and the heart attack was unforeseeable. [1998]
8
Q
Does a doctor have a legal duty to provide aid to an injured person if the doctor is not responsible for the injured party’s condition?
A
Rule 1509: There is no legal duty for a doctor to provide aid to an injured party if the doctor is not responsible for the injured party’s condition. [1992]
9
Q
Does an individual have a duty to aid another person who is in immediate danger due to that individualas conduct?
A
Rule 1510: An individual may have a legal duty to aid another person who is in immediate danger of serious harm due to the individual’s non- negligent conduct. This duty is greater than a duty to aid another person who is in immediate danger of serious harm due to a stranger’s wrongful conduct. [1992]
10
Q
What is the doctrine of take the plantif as he finds him?
A
Rule 1511: A defendant “takes his plaintiff as he finds him” and is liable even if the extent of the injury was not a foreseeable consequence of the negligence. [1992]
11
Q
municipality’s failure to replace a traffic control device at a busy intersection within four days constitutes negligence if what?
A
Rule 1512: A municipality’s failure to replace a traffic control device at a busy intersection within four days constitutes negligence if an injury occurs as a result. [1992]
12
Q
May a person be held liable in tort solely on the grounds that he failed to render assistance?
A
Rule 1513: A person generally cannot be liable in tort solely on the grounds that he failed to render assistance. [1992]
13
Q
If a specific danger is imminent and patently foreseeable and a person exposes the plaintiff to it anyway, then the person is negligent if what?
A
Rule 1514: If a specific danger is imminent and patently foreseeable and a person exposes the plaintiff to it anyway, the person is negligent if an injury occurs. [1992]
14
Q
If a tortfeasor tries to warn the plaintiff but is unsuccessful and the plaintiff is injured by the tortfeasors conduct, will the tortfeasor be negligent?
A
Rule 1515: If a tortfeasor tries to warn the plaintiff but is unsuccessful and the plaintiff is injured by the tortfeasors conduct, the tortfeasor will be found negligent. [1992]
15
Q
There is NO duty to control the conduct of a third person, except in special relationships SUCH as
A
Rule 1516: There is NO duty to control the conduct of a third person, except in special relationships (e.g. common carrier/ passengers; innkeeper/ guests; employer/ employee; school/ student; jailor/ prisoner; landlord/ tenant; or hospitals and therapists who are in charge of dangerous mental patients). [1991]
16
Q
What makes certain duties non-delegable?
A
Rule 1517: Public policy makes certain duties nondelegable (e.g. a car owner is still liable if he injures someone because the car wouldn’t stop, even if it was due to his mechanic putting defective brakes on the car). [1991]
17
Q
If the type of injury is foreseeable, then the defendant is liable even if
A
Rule 1518: If the type of injury is foreseeable, then the defendant is liable even if the extent of the injury is unforeseeable. [1991]
18
Q
What standard of care are minors held to?
A
Rule 1520: In negligence actions, minors are held to the standard of a reasonable child (not that of an adult) of similar age, intelligence, and experience (capacity), BUT where a child engages in a potentially dangerous activity normally pursued only by adults (e.g. driving), the child will be held to the standard of care that a reasonable adult doing that activity would exercise (e.g. a 12-year-old driving a motor boat will be held to the same standard of care as an adult). [2019]
19
Q
What standards must be met to prove a prima facia case of professional negligence?
A
Rule 1521: To prove a prima facie case of professional negligence, the plaintiff must establish the appropriate standard of care and show the defendant failed to adhere to that standard of care; the plaintiff must generally use expert testimony to establish what a reasonable professional would have done in the situation since the jury doesn’t know what is reasonable for that profession in order to establish negligence. In the case of a specialist, he is held to a national standard of all those who practice that specialty (e.g. if a doctor holds himself out as a board certified orthopedist, he is held to a national standard within the specialty of orthopedics), and if the plaintiff cannot prove his prima facie case by failing to introduce evidence the specialist’s care fell below the professional standard of care, the court will grant a directed verdict for the defendant. [2019]
20
Q
Parents are not liable for a child’s torts/ negligence merely on the basis of the parental relationship alone, BUT when will they be held liable?
A
Rule 1522: Parents are not liable for a child’s torts/ negligence merely on the basis of the parental relationship alone (or for failure to control a child merely because the child is known to be rough), although a parent can be guilty of negligent supervision, failure to warn, or failure to exercise reasonable care to protect against the child’s dangerous propensities. A parent’s duty to an invitee extends to warning of hazards the invitee may face on the property or upon leaving the property, BUT where the injured party was aware of the hazard (or should have been aware of the risk) through general knowledge, observation or common sense, a negligence claim based on the parent’s failure to warn will not hold up b/ c the failure to warn cannot be the proximate cause of the invitee’s injury. [2019]
21
Q
The existence of an ordinary custom in an industry is relevant and admissible in evidence on the issue of negligence, but it is not conclusive because what?
A
Rule 1523: The existence of an ordinary custom in an industry is relevant and admissible in evidence on the issue of negligence, but it is not conclusive because the negligence standard of an ordinarily prudent person may be a higher standard than the standard of care followed by a particular community or industry (e.g. P and D own and operate trucking businesses. One of P’s trucks collides with one of D’s trucks. P sues D based on the negligence of D’s driver. D argues that P was negligent for not equipping its trucks with a particular type of brakes that would have prevented the accident. P argues in response that it is not customary in the industry to equip that type of truck with this type of brakes. P’s evidence about industry custom is relevant and admissible, but not conclusive, on the issue of P’s negligence to the same extent it would be in a suit by D against P for damage to D’s truck). [2019]
22
Q
What standard of care is a child held too?
A
Rule 1524: A child is held to the level of conduct of a reasonable person of that age and experience, not that of an adult, BUT where a child engages in a potentially dangerous activity normally pursued only by adults (e.g. driving), the child will be held to the standard of care that a reasonable adult doing that activity would exercise (e.g. if a 13-year-old boy with an IQ of 60 drives a car without parental supervision despite his lack of experience and accidentally hits a pedestrian, he will be liable in negligence because he was engaging in an adult activity, and a minor who engages in a dangerous activity is held to the adult standard of care without taking into consideration a minor’s mental disability or lack of experience). [2013]
23
Q
What is a wrongful birth action?
A
Rule 1525: A wrongful birth action is a claim by parents of a deformed or defective child who allege that negligent advice as to the risk of genetic or birth defects or negligent treatment, or failure to abort a fetus, by the defendant deprived them of the choice of avoiding the child’s conception or of terminating the pregnancy, and the parents are entitled to compensation for the financial loss they will suffer for raising a physically or mentally challenged child (e.g. if a mother gives birth to a blind baby after a doctor negligently fails to diagnose a common genetic defect responsible for the blindness, the best action against the doctor is a wrongful birth action by the mother for expenses she has incurred due to the baby’s blindness, on the ground that but for the doctor’s negligence, she would not have proceeded with the pregnancy, because parents who conceive a child with a birth defect due to a doctor’s negligence can recover the added expenses that could have been avoided, but not the entire expense of child rearing). [2013]
24
Q
A criminal statute can be used to set the standard of care in a negligence action if:
A
Rule 1526: A criminal statute can be used to set the standard of care in a negligence action if: (1) the statute in question was designed to protect the class of persons that includes the plaintiff; and(2) the statute was designed to protect against the kind of harm the plaintiff actually suffered (e.g. if a criminal statute requires fire sprinklers in warehouses, if P is injured due to a fire in D’s unsprinklered warehouse, P can recover from D because P was harmed by D’s violation of a statute enacted to protect against this type of harm). [2011]
25
What is the standard of conduct to which one must conform to avoid being negligent ?
Rule 1527: The standard of conduct to which one must conform to avoid being negligent is that of a reasonable person under like circumstances (e.g. in a negligence action, if a man sues a car rental agency for his injuries caused by an exploding bomb hidden in his rented car, the rental agency is not liable since the danger is not reasonably foreseeable due to the extreme rarity of such an event and the rental company had no specific reasons to suspect such a danger). [2011]
26
If a person hiking on private property without the owners knowledge or permission is injured, the owner is WHAT? AN WHY?
Rule 1528: If a person hiking on private property without the owners knowledge or permission is injured, the owner is generally not liable b/ c a possessor of land is not required to exercise reasonable care to make his land safe for trespassers except for artificial conditions highly dangerous to trespassers and only when he knows about the trespasser or has some reason to anticipate the trespasser's presence (e.g. an owner is not liable if a hiker enters owner's land without the owner's knowledge or permission and is injured by a falling tree limb infested by termites). [2008]
27
A police officer injured in a non- emergency situation can sue the tortfeasor for negligence if WHAT?
Rule 1529: A police officer injured in a non- emergency situation can sue the tortfeasor for negligence if the injury was not based on the risks inherent with dangerous police work. [2006]
28
In a pure comparative negligence jurisdiction, if a bright nine year old fails to appreciate an obvious risk where a sign also warns of the danger, a claim of negligence will ____ and WHY
Rule 1530: In a pure comparative negligence jurisdiction, if a bright nine year old fails to appreciate an obvious risk where a sign also warns of the danger, a claim of negligence will fail. A danger encountered by a child trespasser is not an attractive nuisance unless there is evidence that the possessor has reason to know that children are likely to trespass, and evidence that the plaintiff did not appreciate the risk involved. [2006]
29
: In a pure comparative negligence jurisdiction, if a child in a day care center somehow escapes and is injured, the day care center will not be held negligent if what?
Rule 1531: In a pure comparative negligence jurisdiction, if a child in a day care center somehow escapes and is injured, the day care center will not be held negligent if the center exercised reasonable care to ensure that the children in their charge did not leave the premises. [2006]
30
An action for negligence should be dismissed if the only evidence supporting the claim is that _____?
Rule 1532: An action for negligence should be dismissed if the only evidence supporting the claim is that the defendant violated a statute and it can be shown that the statute was not intended to protect the plaintiff from the type of harm that occurred. [2006]
31
A homeowner who sells his house can be held liable for negligence if what?
Rule 1533: The seller of a house can be held liable for negligence if he was aware of a defective condition, sells the home, and a person is subsequently injured by the defective condition. [1998]
32
: A defendant can be found negligent for failure to warn if WHAT?
Rule 1534: A defendant can be found negligent for failure to warn if a reasonably prudent person would warn of the danger. [1998]
33
Although a common carrier has a duty to aid an injured passenger, the carrier is not liable if WHAT?
Rule 1535: Although a common carrier has a duty to aid an injured passenger, the carrier is not liable if conditions made it impossible for the carrier to render assistance. [1998]
34
Under the Attractive Nuisance doctrine, an owner owes a duty of reasonable care to a trespassing child if:
Rule 1538: Under the Attractive Nuisance doctrine, an owner owes a duty of reasonable care to a trespassing child if: (1) the owner knows that the area is one where children are likely to trespass;(2) the owner has reason to know that the condition poses an unreasonable risk of serious injury or death to trespassing children; (3) the injured child either does not discover the condition or does not realize the danger, due to his youth; (4) the benefit to the owner of maintaining the condition in its dangerous form is slight weighed against the risk to the children; and (5) the owner fails to use reasonable care to eliminate the danger. [1992]
35
What is negligence per se?
Rule 1539: When a safety statute has a sufficiently close application to the facts of the case at hand, an unexcused violation of that statute by a defendant is "negligence per se," and thus conclusively establishes that the defendant was negligent. [1992]
36
What duty of care is held to undiscovered trespassers?
Rule 1540: Undiscovered trespassers (i.e. people on land without the occupier's knowledge) are NEVER owed a duty of care, no matter how they were injured. [1992]
37
When can a rescuer assert a claim against a property owner for the rescuers injuries?
Rule 1541: A rescuer cannot assert a claim against a property owner for the rescuer's injuries if the property owner was not at fault. [1992]
38
If a defendant's negligence creates a danger which causes some third person to attempt a rescue, is the defendant liable to the rescuer?
Rule 1542: If a defendant's negligence creates a danger which causes some third person to attempt a rescue, the defendant may be liable to the rescuer. [1992]
39
a driver injures someone because his brakes failed, what defense can the driver use?
Rule 1543: If a driver injures someone because his brakes failed, a defense is that the driver used reasonable care in the maintenance of his brakes. [1992]
40
In what circumstance can a mechanic be held liable for a car accident?
Rule 1546: A mechanic can be held liable for a car accident if the mechanic was negligent in inspecting the driver's brakes. [1992]
41
claim for negligence will succeed if what?
Rule 1547: A claim for negligence will succeed if the tortfeasor could have taken reasonable steps to prevent the injury but did't. [1992]
42
A negligence cause of action will fail if what?
Rule 1548: A negligence cause of action will fail if a reasonably prudent person could not foresee injury to the plaintiff as a result of defendant's action. [1992]
43
If a person violates a statute, but the violation of the statute is not the proximate cause of the injury to the other person what would be the result?
Rule 1549: If a person violates a statute, but the violation of the statute is not the proximate cause of the injury to the other person, there is no cause of action for negligence based on that violation. [1992]
44
When may a passenger in a car injured in an accident recover from the driver under a negligence theory?
Rule 1551: A passenger in a car injured in an accident cannot recover from the driver under a negligence theory if the driver did not act unreasonably. [1992]
45
A person cannot be found negligent if they what?
Rule 1552: A person cannot be found negligent if they exercised the due care a reasonable person in the same circumstances would have exercised and the risk of danger was not foreseeable. [1992]
46
A contractor is liable under a negligence theory if the contractor what?
Rule 1553: A contractor is liable under a negligence theory if the contractor has reason to know that a condition at his work site poses an unreasonable risk of serious injury or death to trespassers and the contractor fails to use reasonable care to eliminate the danger. [1992]
47
if a doctor fails to inform you that the operation has a 2% risk of death and the operation is a success, may you sue and win under a neglgence theory?
Rule 1556: If a doctor fails to inform you that the operation has a 2% risk of death and the operation is a success, there is no negligence because you were not harmed. [1991]
48
What duty of care is helf for common carriers?
Rule 1558: Common carriers are under a duty to their passengers to take reasonable action to protect them against unreasonable risk of physical harm. [1991]
49
A hotel is not liable under Res Ipsa Loquitur if a chair falls out of a window and injures a passerby because why?
Rule 1560: A hotel is not liable under Res Ipsa Loquitur if a chair falls out of a window and injures a passerby because the chair was not under the hotel's exclusive control (it is unreasonable to expect them to prevent a guest from throwing a chair out of a window); likewise, the occupants of all the rooms from which the chair might have been thrown are not liable under Res Ipsa since the guests only have partial control of the furniture. If plaintiff fails to persuade the court that the doctrine applies, the plaintiff usually ends up with a directed verdict against him because he has no other evidence of negligent conduct. [2019]
50
If a plaintiff is injured when a hospital wheelchair collapses, or an escalator or elevator malfunctions, an automatic door closes on him, or a public telephone shocks him, the plaintiff may be permitted to claim res ipsa loquitur negligence, so long as what?
Rule 1561: If a plaintiff is injured when a hospital wheelchair collapses, or an escalator or elevator malfunctions, an automatic door closes on him, or a public telephone shocks him, the plaintiff may be permitted to claim res ipsa loquitur negligence, so long as the plaintiff can exclude himself as the probable cause of the injury. [2019]
51
When can res ipsa loquitor be applied?
Rule 1562: Res Ipsa can apply if the accident is one that normally does not occur without carelessness on the part of the defendant, and the court will hold that the occurrence itself will permit the conclusion that someone was negligent - Res Ipsa does't mean the plaintiff wins the case, it simply permits the jury to infer negligence, but it does not require them to do so (e.g. injuries suffered from eating canned food containing large chunks of glass is an example of an event that normally does not occur unless someone is negligent). [2019]
52
Res ipsa loquitur can be applied in medical situations if: (3 requriments)
Rule 1563: Res ipsa loquitur can be applied in medical situations if: (1) P receives an unusual injury; (2) while P is in care and control of the defendant(s); and (3) P is unconscious or unable to explain the injury. If medical RIL applies, the burden is shifted to the Ds to refute the inference of negligence - all Ds who had any control over P's body or instrumentalities which might have caused the injury owed a duty of ordinary care to P and therefore may be held liable. [2019]
53
Res ipsa loquitur can be applied in medical situations if: (3 requriments)
Rule 1564: In medical situations, res ipsa loquitur can be applied when the plaintiff: (1) receives an unusual injury; (2) is in care and control of the defendant(s); and (3) is unconscious (e.g. if a plaintiff sues a medical team composed of a surgeon and supporting nurses and establishes that the professional duty of care was breached when she suffered a severe burn to her leg during foot surgery under full anesthesia, the plaintiff's best argument against a motion for dismissal is an extended res ipsa loquitur applicable to medical cases; i.e., at least one of the defendants had exclusive control over the agency or instrumentality of harm). [2011]
54
Under the doctrine of res ipsa loquitur, if there is no direct evidence of how the D behaved, a jury can infer negligence if what?
Rule 1565: Under the doctrine of res ipsa loquitur, if there is no direct evidence of how the D behaved, a jury can infer negligence if P's accident would ordinarily not occur in the absence of negligence and D is responsible for the instrumentality that inflicted the injury (e.g. the doctrine of res ipsa loquitur applies to the operation of an automatic door at a supermarket if the door and its maintenance are under the exclusive control of the storekeeper and there is no indication that the accident was P's fault). [2008]
55
Will res ipsa loquitor apply if a person slips on a banana peel and the store owner did not know or had no reason to have know about the condition?
Rule 1566: Res ipsa loquitur will not apply if a person slips on a banana peel and there is no reasonable basis for inferring that the store- owner knew or should have known of the dangerous condition. [2006]
56
May res ipsa loquitor be used to infer negligence in a place crash that occurred in good weather?
Rule 1567: The doctrine of res ipsa loquitur can be used to infer negligence in a plane crash that occurred in good weather. [1998]
57
A claim based on res ipsa loquitur will fail if what?
Rule 1568: A claim based on res ipsa loquitur will fail if the trier of fact determines that the person in control of the instrumentality had taken reasonable precautions to prevent such an injury. [1992]
58
When does joint and several liability exists?
Rule 1569: Joint and several liability exists when the tortious conduct of each of two or more persons acting independently but concurrently combine as substantial factors in causing an indivisible injury - these concurrent tortfeasors are jointly and severally liable for the plaintiff's entire loss, unless the defendants can prove that the injuries are divisible (meaning liability is therefore several only and apportionable among them). It does not matter that they did not act in concert, or that neither's conduct by itself would have caused the injury - each defendant is still liable if his conduct is a substantial factor in bringing about the harm (e.g. if one defendant drives an automobile at an excessive speed while another defendant negligently pushes the plaintiff into the path of the car, each negligent act is a substantial factor in causing the plaintiff's indivisible injury and the conduct of each actor is a concurring cause as to the other, and the act of each does not extinguish the liability of the other). [2019]
59
Under a Loss of Chance of Survival claim, when a disease could have been diagnosed earlier (when there had been a better chance of recovery), some jurisdictions allow what?
Rule 1570: Under a Loss of Chance of Survival claim, when a disease could have been diagnosed earlier (when there had been a better chance of recovery), some jurisdictions allow for recovery for loss of chance or reduced chance of survival even though the plaintiff ca't prove that it is more likely than not that defendant's negligent conduct caused the injury (e.g. if a man has a reasonable chance (although less than 50%) of surviving a heart failure if his heart disease is correctly diagnosed but a hospital fails to diagnose and he dies shortly thereafter, his wife will likely recover against the hospital in a jurisdiction that allows recovery for the loss of the chance for survival (an exception to the traditional rules of causation), BUT she will not recover in a jurisdiction following the traditional rules of causation, which require her to prove a defendant's reasonable action would have resulted, more likely than not (51%), in the ma's survival). [2013]
60
Under the subsequent injuries exception, a defendant can be deemed to proximately cause injuries resulting from a weakened condition of the plaintiff when: (2 requir)
Rule 1571: Under the subsequent injuries exception, a defendant can be deemed to proximately cause injuries resulting from a weakened condition of the plaintiff when: (1) the original injury was the result of either a disease or broken/ injured limbs and (2) defendant's first injury made the plaintiff more susceptible (e.g. If a pedestrian is hit by a car resulting in an injury to his legs that makes them unsteady, and the pedestrian later injures his shoulder when he falls down a stairway due to his unsteady legs, the driver is liable for injuries both to his legs and shoulder because the pedestria's injuries are a foreseeable consequence of the original action and will not break the chain of causation). [2011]
61
n a jurisdiction with a system of pure comparative negligence with joint and several liability, if two or more defendants are liable for a plaintiff's injury, how much damage may the plantiff pursue from any one defendant?
Rule 1572: In a jurisdiction with a system of pure comparative negligence with joint and several liability, if two or more defendants are liable for a plaintiff's injury, the plaintiff (after subtracting any percentage of her own fault) can pursue the entire amount of damages from any one defendant, although this defendant can seek contribution from the other defendants if he pays more than his share of fault (e.g. if P suffers $10,000 in damages and is 10% at fault, the first D is 60% at fault, and the second D is 30% at fault, the plaintiff can recover $9,000 from the first D who can then seek a $3,000 contribution from the second D). [2011]
62
Under joint and several liability, the entire judgment amount can be collected from who?
Rule 1573: Under joint and several liability, the entire judgment amount can be collected from any of the guilty defendants, even a defendant that is just 1% at fault. [2006]
63
If a plaintiff became sick after eating food at a catered event, the plaintiff must what?
Rule 1574: If a plaintiff became sick after eating food at a catered event, the plaintiff must establish that the caterer was the actual and proximate cause of the illness in order to succeed in a negligence claim. [1998]
64
To succeed in a negligence cause of action, a plaintiff must show what?
Rule 1575: To succeed in a negligence cause of action, a plaintiff must show that the defendant's conduct was the cause in fact of the plaintiff's injury and had the defendant not acted negligently, the plaintiff's injuries would not have resulted. [1992]
65
To succeed in a negligence action against an attorney, a plaintiff must establish what?
Rule 1576: To succeed in a negligence action against an attorney, a plaintiff must establish that the plaintiff would have recovered in the lawsuit the attorney negligently handled, but for the attorney's negligence. [1992]
66
If the combined negligent actions of two parties causes an injury, and the damages are not divisible between the tortfeasors, who is liable?
Rule 1577: If the combined negligent actions of two parties causes an injury, and the damages are not divisible between the tortfeasors, both tortfeasors are liable for all the damages, jointly and severally. [1992]
67
If the negligence of two different parties contributed to the plaintiff's injury, who is responsiable for the full amount of amages?
Rule 1578: If the negligence of two different parties contributed to the plaintiff's injury, both negligent parties are responsible for the full amount of the plaintiff's damages. [1992]
68
To prove a defendant's conduct was the "cause in fact" of the plaintiff's injury, the plaintiff must show what?
Rule 1579: To prove a defendant's conduct was the "cause in fact" of the plaintiff's injury, the plaintiff must show that had the defendant not acted negligently, the plaintiff's injuries would not have resulted. The plaintiff must also show that the defendant was the "proximate cause" of those injuries - a defendant will not be liable for the consequences that are very unforeseeable. [1992]
69
If a plaintiff cannot prove which of three or more persons caused his injury, but can show that all produced a defective product, the court will require what?
Rule 1580: If a plaintiff cannot prove which of three or more persons caused his injury, but can show that all produced a defective product, the court will require each of the defendant's to pay that percentage of plaintiff's injuries which that D's sales bore to the total market sales of that type of product at the time of injury. [1992]
70
If more than one person is a proximate cause of a plaintiff's harm, and the harm is indivisible, who is liable for the harm and to what extent?
Rule 1581: If more than one person is a proximate cause of a plaintiff's harm, and the harm is indivisible, each defendant is liable for the entire harm. [1992]
71
A joint venture is defined as: (4 requ)
Rule 1585: A joint venture is defined as: (1) an agreement among members of a group; (2) a common purpose to be carried out by the group;(3) a community of pecuniary interest in that purpose; and (4) an equal right to a voice in the direction of the enterprise. [1991]
72
Under the traditional rules of landowners' and occupiers' liability, a trespasser assumes all risks of the conditions which may be found and a landowner/ landlord/ possessor only owes the trespasser a duty to avoid willful or wanton injury, BUT exceptions exist if what?
Rule 1586: Under the traditional rules of landowners' and occupiers' liability, a trespasser assumes all risks of the conditions which may be found and a landowner/ landlord/ possessor only owes the trespasser a duty to avoid willful or wanton injury, BUT exceptions exist if the trespasser has been discovered or the trespass is frequent and reasonably anticipated (e.g. if a neighbor is aware of hunters on the land next door but chooses to trespass across the property as a short-cut, if the neighbor is injured by a gunshot, under the common law, the landowner next door is NOT liable for the neighbor's injury on his land). [2019]
73
A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person ONLY if the plaintiff:
Rule 1587: A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person ONLY if the plaintiff: (1) was closely related to the victim; (2) was present at the scene of the injury- producing event and was aware the event was causing the injury; and (3) suffers serious emotional harm. However, there are two exceptions where a plaintiff may recover for NIED notwithstanding these rules: (1) a plaintiff may recover damages for mental distress caused by the negligent handling of the corpse of a close relative despite not witnessing it; and (2) a plaintiff may recover damages when mistakenly informed of the death of a close relative (e.g. if P hires a funeral home to handle the burial of P's late husband, but due to negligence, the funeral home buries the husband in the wrong grave, P may recover for pure emotional distress, even if P has not suffered bodily harm from the distress). [2019]
74
A tavern or liquor vendor is not an insurer of his customers' safety, and they are generally only found liable if what?
Rule 1588: A tavern or liquor vendor is not an insurer of his customers' safety, and they are generally only found liable if they sell alcohol to someone obviously intoxicated or to a minor (e.g. if an intoxicated person enters a bar and is refused service, there is no further duty to monitor any subsequent activities of the person, absent some specific threat or some other basis from which danger may be reasonably anticipated). [2017]
75
bystander can recover for negligent infliction of emotional distress under the zone of danger rule if what?
Rule 1589: A bystander can recover for negligent infliction of emotional distress under the zone of danger rule if the bystander can prove that he or she was placed in a zone of danger of imminent physical impact, reasonably feared for his or her safety, and as a consequence, suffered severe emotional distress (e.g. if a plaintiff narrowly escapes getting hit by a car when the car runs over and kills a stranger and the plaintiff sues the driver for the resulting depression and physical symptoms under a claim of negligent infliction of emotional damage, the plaintiff's strongest argument against the defendant's assertion that the plaintiff's emotional distress are not compensable is that the plaintiff was in the zone of danger since he was under a direct physical threat from the driver's negligence - the bystander does NOT need be a close relative of the stranger who was killed because he himself was in the zone of danger and suffered physical symptoms). [2013]
76
A landlord can be held liable for dog- bite injuries from a vicious dog belonging to a tenant if what?
Rule 1590: A landlord can be held liable for dog- bite injuries from a vicious dog belonging to a tenant if the landlord knew of the dog's vicious propensities when the premises were leased to the tenant, BUT if the landlord does not have any notice of a tenant's dog's vicious propensities, the landlord will not be found liable if the tenant's dog injures a tenant's guest. [2008]
77
: If the owner of a store hires a construction company to design and build an entryway in a common area, the owner is still liable if what?
Rule 1591: If the owner of a store hires a construction company to design and build an entryway in a common area, the owner is still liable if the entryway is defective because work in common areas accessible to the public generally places a non-delegable duty on the part of the owner. [2008]
78
If a witness to an accident is not in the zone of danger, the bystander can never recover for NIED unless what?
Rule 1592: If a witness to an accident is not in the zone of danger, the bystander can never recover for NIED unless the bystander suffers physical harm or the bystander is a close relative (e.g. parents, siblings, children, grandparents or relatives residing in the same household) of the injured person. [2008]
79
No claim for emotional distress exists when a defendant negligently causes property loss to the plaintiff - the plaintiff can only sue for
Rule 1593: No claim for emotional distress exists when a defendant negligently causes property loss to the plaintiff - the plaintiff can only sue for negligence. [1998]
80
A landowner will not be held liable for a trespasser's injuries if what?
Rule 1594: A landowner will not be held liable for a trespasser's injuries if the landowner was unaware of the trespasser's presence or took reasonable steps to prevent the injury after becoming aware of the trespasser's presence. [1998]
81
When may a landowner use excess force to deter trespassers?
Rule 1595: A landowner can never use excessive force to deter trespassers from entering onto the landowner's property. [1998]
82
A person who is negligent will not be found liable for an intervening act stemming from the negligence if what?
Rule 1596: A person who is negligent will not be found liable for an intervening act stemming from the negligence if the intervening act was not foreseeable. [1998]
83
A tortfeasor is liable for all damages that his negligence was the proximate cause, even when the subsequent negligence of other tortfeasors causes additional damages, so long what?
Rule 1597: A tortfeasor is liable for all damages that his negligence was the proximate cause, even when the subsequent negligence of other tortfeasors causes additional damages, so long as the damages were a proximate consequence of the first tortfeasor's negligence. [1998]
84
Under the Attractive Nuisance doctrine that pertains to child trespassers, where a landowner knows or should know that artificial conditions on the land are likely to attract children onto the land who would be unable to appreciate the danger, WHAT DUTY does the landowner have?
Rule 1599: Under the Attractive Nuisance doctrine that pertains to child trespassers, where a landowner knows or should know that artificial conditions on the land are likely to attract children onto the land who would be unable to appreciate the danger, the landowner has a duty to make the condition safe, especially if it can be done at a moderate cost. [1992]
85
: If a dinner guest asserts a claim against a host for food poisoning, the host will only be held liable if what?
Rule 1600: If a dinner guest asserts a claim against a host for food poisoning, the host will only be held liable if the host was negligent. [1992]
86
For negligence and strict liability, may you recover pure economic damages ?
Rule 1602: For negligence and strict liability, you cannot recover pure economic damages only. [1992]
87
What is a defense to neglience?
Rule 1603: A defense to negligence is that you could not reasonably foresee that the damage or injury would occur. [1992]
88
An injured party will fully recover in tort if what?
Rule 1604: An injured party will fully recover in tort if intervening causes contribute to produce the injury and the plaintiff is not at fault. [1992]
89
In order to recover for negligent infliction of emotional distress, a plaintiff would have to show
Rule 1606: In order to recover for negligent infliction of emotional distress, a plaintiff would have to show physical manifestations of the distress in absence of a physical impact on the plaintiff. [1991]
90
What type of damages can you recover under negligence and strict liability?
Rule 1607: For negligence and strict liability, you can recover property damages only. [1991] Rule 1608: For negligence and strict liability, you can recover pure economic damages if you also have property damages or personal injuries. [1991]
91
Sovereign immunity does not attach to non-delegable duties that are what?
Rule 1609: Sovereign immunity does not attach to non-delegable duties that are proprietary in nature (e.g. where a city supplies water, gas, electricity, or operates a ferry, dock, airport, or public market). [1991]
92
What is a A superseding cause?
Rule 1610: A superseding cause is an unforeseen intervening cause which relieves the defendant from liability for his antecedent negligence because the superseding event becomes the proximate cause of the plaintiff's injuries. [1991]
93
What is proximate cause?
Rule 1613: Proximate cause is a cause that is legally sufficient to result in liability. A defendant is liable for all harmful acts that are the normal incidents of and within the increased risk caused by his acts, BUT unforeseen conduct not within the increased risk created by the negligence is a superseding cause that breaks the causal connection. [1991]
94
NIED requires that the Defendant's conduct create what (2 req)
Rule 1614: NIED requires that the Defendant's conduct create a (1) foreseeable risk of physical injury to the Plaintiff, and the (2) emotional distress caused by the conduct also resulted in physical injury to the Plaintiff. [1991]
95
: Superior knowledge of a dangerous condition by itself, in absence of duty, is insufficient to establish liability, unless there is a special relationship - in determining whether or not a defendant owes the plaintiff a duty of care, courts will look at: (5 requir)
Rule 1617: Superior knowledge of a dangerous condition by itself, in absence of duty, is insufficient to establish liability, unless there is a special relationship - in determining whether or not a defendant owes the plaintiff a duty of care, courts will look at: (1) whether D has custody of P; (2) whether P is not able to determine his own actions; (3) whether there is a financial relationship between the parties; (4) whether P expects protection from D; and (5) actual knowledge of a dangerous condition may impose a duty. [2019]
96
If a principal creates the appearance that an entity is an agent, and an innocent 3rd party justifiably relies on the care/ skill of that apparent agent, what is liability of the principal?
Rule 1618: If a principal creates the appearance that an entity is an agent, and an innocent 3rd party justifiably relies on the care/ skill of that apparent agent, the principal will be liable for acts or omissions of the apparent agent (e.g. a franchisor may incur liability to 3rd parties for acts or defaults of the franchisee under agency theory if the 3rd party had reason to believe the franchisor "stood behind" the franchisee because the franchisor's name and logo were on the franchisee's business and business literature). [2019]
97
What is the doctrine of respondeat superior?
Rule 1616: Under the doctrine of respondeat superior, an employer is generally not vicariously liable for the criminal or tortious conduct of an employee outside the scope of his employment because the duty to control an employee extends only to acts within the scope of the employment. However, the employer may be liable for his own negligent hiring of the employee if the employer had some reason to be on notice that the harmful action committed by the employee within the scope of employment was likely to occur and the employer therefore breached a duty to use reasonable care in hiring the employee that committed the tortious or criminal act. [2019]
98
Under the nondelegable duty doctrine, a party responsible for the safety of its facilities may not avoid liability by delegating that responsibility to a third party, and negligence can be inferred under the theory of Res Ipsa Loquitur if: (1) the harm is of a kind that does not ordinarily occur in the absence of some negligence; (3 requ)
Rule 1619: Under the nondelegable duty doctrine, a party responsible for the safety of its facilities may not avoid liability by delegating that responsibility to a third party, and negligence can be inferred under the theory of Res Ipsa Loquitur if: (1) the harm is of a kind that does not ordinarily occur in the absence of some negligence; (2) the alleged negligence is within the scope of the duty owed by the defendant to the plaintiff; and (3) the evidence eliminates other responsible causes including the conduct of the plaintiff and third parties (e.g. if a plaintiff sues a hotel in negligence and produces only the following facts: (1) that the hotel hires an independent contractor to regularly maintain its elevators; and (2) the plaintiff, while visiting a guest at the hotel, was injured when an elevator door abruptly closed on his arm, the court must deny the defendant's motion for a directed verdict because the finder of fact could infer that the elevator's malfunction was due to negligence b/ c the first requirement for res ipsa loquitur, inference of negligence, was established by the evidence that the elevator malfunctioned, the second requirement, exclusive control, was met because the hotel had a non-delegable duty to keep the public elevators in its building in a safe condition, and the third requirement, that the accident was not due to claimants' actions, was met because there was no evidence that claimants did anything other than use the elevator). [2013]
99
A possessor's duty to invitees is nondelegable, and he will be liable if what?
Rule 1620: A possessor's duty to invitees is nondelegable, and he will be liable if his employee or an independent contractor whom he has hired to perform for him fails to perform properly (e.g. although a person who hires an independent contractor is generally not vicariously liable for an independent contractor's negligence, if a business invitee injures himself due to a repair negligently performed by the contractor, the business owner is personally liable despite his reasonable care in selecting and supervising the contractor because those who keep land open to the public have a nondelegable duty to maintain the land safe for business invitees). [2011]
100
If an employee harms a customer, the employer can be held liable for negligence or negligent hiring if what?
Rule 1621: If an employee harms a customer, the employer can be held liable for negligence or negligent hiring if the employer failed to use reasonable care to protect the customer. [1998]
101
If A is liable for B's negligence because of vicarious liability, A has recourse against B for indemnification if what?
Rule 1622: If A is liable for B's negligence because of vicarious liability, A has recourse against B for indemnification if there is a judgment against A. [1992]
102
Parents are not generally liable for the intentional torts of their children except when
Rule 1623: Parents are not generally liable for the intentional torts of their children except when the parents are on notice or encouraged the behavior. [1992]
103
A car owner can be liable for negligent entrustment in lending a car to someone he knows who is a ________?
Rule 1624: A car owner can be liable for negligent entrustment in lending a car to someone he knows is a bad driver. [1991]
104
Under respondeat superior, an employer can be held liable for slight departures made by his employee that result in negligence if what?
Rule 1625: Under respondeat superior, an employer can be held liable for slight departures made by his employee that result in negligence if the slight departures were foreseeable, making the departure within the scope of employment. [1991]
105
The person who hires an independent contractor is generally not responsible for the negligence of the independent contractor, unless what?
Rule 1626: The person who hires an independent contractor is generally not responsible for the negligence of the independent contractor, unless it is an inherently dangerous activity. [1991]
106
Waivers of liability for negligence are not favored by the law, and courts generally construe them strictly against the releasee - in determining the validity of a waiver on public policy grounds, courts examine: (5 requi)
Rule 1629: Waivers of liability for negligence are not favored by the law, and courts generally construe them strictly against the releasee - in determining the validity of a waiver on public policy grounds, courts examine: (1) whether the intent to excuse the releasee from the consequences of his or her own negligence was clear and unambiguous and expressed in unequivocal terms; (2) whether there was a great disparity of bargaining power between the parties; (3) whether a dangerous condition was known to the releasee but not known or obvious to the releasor; (4) whether there was gross negligence, nuisance, or willful misconduct on the part of the releasee; and (5) whether the clause attempts to circumvent a statutorily imposed duty intended to protect the releasing party (e.g. if a man joins a tennis class after signing a waiver that reads, I assume all risk of injuries in this class whether due to negligence or any other fault, and the instructor subsequently hits the ma's face with a tennis racket while serving, the ma's best argument against the validity of the waiver in his personal injury claim is that public policy disfavors enforcing waivers that insulate people from the consequences of their own negligence, especially when the actual risk that materialized is not inherent to a tennis lesson but is a common risk of being careless). [2013]
107
How does the fact that a defendant is indigent relevant to tort liabiliy?
Rule 1630: Defenses to negligence actions include assumption of risk and contributory negligence, but whether the defendant is indigent (his care is paid for by the state) is irrelevant to the defendant's tort liability (e.g. in a negligence action brought by a nurse against a schizophrenic patient who injured her, the patient's defenses include assumption of risk and contributory negligence, BUT the fact that the tortfeasor is indigent with his care being paid for by the state is irrelevant to the patient's tort liability). [2011]
108
In an action for ordinary negligence, a plaintiff cannot recover punitive damages, BUT the plaintiff can recover punitive damages for what type of torts?
Rule 1631: In an action for ordinary negligence, a plaintiff cannot recover punitive damages, BUT the plaintiff can recover punitive damages for intentional torts or reckless conduct. [2008]
109
What is the last clear chance doctrine
Rule 1632: Under the last clear chance doctrine, the last wrongdoer is viewed as the worst wrongdoer, thereby allowing a plaintiff who was contributorily negligent to recover if the defendant had the last clear chance to avoid harm to the plaintiff. [1998] Rule 1636: Under the Last Clear Chance Doctrine, the last wrongdoer is viewed as the worst wrongdoer and should pay. This enables a Plaintiff who was contributorily negligent to recover because the Defendant had a final opportunity to avoid injuring the Plaintiff but negligently failed to take it. [1991
110
in a "pure" comparative negligence jurisdiction, an injured party will only recover a proportion of his damages based on what?
Rule 1633: In a "pure" comparative negligence jurisdiction, an injured party will only recover a proportion of his damages based on the respective degrees of his negligence and that of the tortfeasor. [1992]
111
If a claim is based on negligence, the defense of assumption of risk does not apply if what?
Rule 1634: If a claim is based on negligence, the defense of assumption of risk does not apply if the defendant's conduct left plaintiff with no reasonable choice but to encounter a known danger. [1992]
112
A defendant can raise the defense that the plaintiff was contributorily negligent per se if what?
Rule 1635: A defendant can raise the defense that the plaintiff was contributorily negligent per se if the plaintiff violates a statute and the injury was the type of injury the statute was designed to protect against. [1992]
113
nder traditional contributory negligence, a plaintiff's contributory negligence bars recovery unless what?
Rule 1637: Under traditional contributory negligence, a plaintiff's contributory negligence bars recovery unless the defendant's conduct was wanton and willful, even if the defendant is liable because of strict liability (e.g. blasting). [1991]
114
In a partial comparative negligence jurisdiction, a plaintiff can recover so long as what?
Rule 1638: In a partial comparative negligence jurisdiction, a plaintiff can recover so long as the plaintiff's negligence was less than the defendant's negligence; if there are multiple defendants, the plaintiff can recover so long as the plaintiff's negligence was less than the defendants' negligence combined. [1991]
115
When does the assumption of risk apply?
Rule 1639: Assumption of risk applies when the person is subjectively aware of the risk and consciously disregards it. [1991]
116
: For the doctrine of transferred intent to apply, there must be what?
Rule 1640: For the doctrine of transferred intent to apply, there must be a tortious act and a tortious intent, meaning it does not apply if the actor is doing a lawful act (e.g. if a hunter is shooting a deer, but the bullet misses the deer and strikes a person, this would not be a transferred battery because it was a lawful act to shoot the deer, meaning the hunter was not committing a battery by shooting the deer). [2019]
117
A close family member can recover for intentional infliction of mental distress if he or she was not in the zone of danger but simply near the scene when witnessing the event, provided (2 requirments)
Rule 1641: A close family member can recover for intentional infliction of mental distress if he or she was not in the zone of danger but simply near the scene when witnessing the event, provided: (1) the plaintiff was located near the scene of the accident; (2) the plaintiff must witness the
118
A close family member can recover for intentional infliction of mental distress if he or she was not in the zone of danger but simply near the scene when witnessing the event, provided: (4 requi)
Rule 1641: A close family member can recover for intentional infliction of mental distress if he or she was not in the zone of danger but simply near the scene when witnessing the event, provided: (1) the plaintiff was located near the scene of the accident; (2) the plaintiff must witness the accident/incident firsthand and the shock that resulted from this direct emotional impact was contemporaneous; (3) the plaintiff and the victim were closely related; and (4) the injury to the victim was severe or even death (e.g. if a doctor molests a child in his examination room, the mother cannot recover for IIED if she was in the waiting room because she was neither the direct victim of the doctor's conduct nor a contemporaneous witness).
[2019]
119
Where may a trespass occur and why?
Rule 1642: A trespass may occur above or below the surface since the possessory right is deemed to extend vertically in those directions from the boundary line on the surface (e.g. an underground intrusion from a well dug at an angle on neighboring land that intrudes onto P's land is a trespass, but the depletion of water, oil, or gas from a common basin by a perpendicular well dug on neighboring land is not). [2019]
120
What is the requirement for false imprisonment?
Rule 1643: For false imprisonment, the defendant must intend to confine the plaintiff or know with substantial certainty that the plaintiff would be confined by the defendant's actions - the tort of false imprisonment cannot be committed merely by negligent or reckless acts (e.g. if a librarian is unaware that a customer is still inside a library and locks all doors before leaving, the customer, who is confined in the library against his will, has no claim for an intentional tort of false imprisonment against the librarian since he did not intend to confine the customer or to commit another intentional tort). [2013]
121
For battery, the element of intent is satisfied if what?
Rule 1644: For battery, the element of intent is satisfied if the defendant knows with a substantial certainty that his act will result in a harmful or offensive contact and a minor is liable just as any other person when he has committed an intentional tort with force, meaning a five year old child can be liable for an intentional tort (e.g. if a five-year-old child becomes jealous after seeing her mother flirting with a stranger and bites his leg, which results in an injury requiring stitches, even if the child is too young to appreciate the wrongfulness or possibility of serious harm, the child will be liable for battery because he intended to use his teeth against the stranger and such contact would be considered harmful and offensive to a person with average sensibilities). [2013]
122
Intentional intermeddling with a chattel constitutes a trespass only if what?
Rule 1645: Intentional intermeddling with a chattel constitutes a trespass only if the chattel is thereby harmed, or the possessor is deprived of the use of the chattel, or the possessor suffers bodily harm; harmless intermeddling with a chattel is not a trespass (e.g. if a woman is sunbathing on her porch and a four-year-old boy from next door notices her cat sleeping on the lawn, and grabs and throws the cat to see if it can land on its feet, which it does unharmed, although this action greatly distresses the woman, she has no viable claim of trespass to chattels against the boy because the cat did not suffer any injury and she was not deprived the use of the chattel for a substantial amount of time). [2013]
123
Assault is defined as what?
Rule 1646: Assault is defined as the intentional act of causing a reasonable apprehension of immediate harmful or offensive contact - the plaintiff must have anticipated contact and known of the defendant's act in order to apprehend the contact - without awareness, there can be no apprehension and thus, no assault (e.g. if P was sleeping when D enters his room with a crowbar to attack him, there is no intentional tort of assault because there was no apprehension of imminent offensive contact). [2011]
124
What is conversion?
Rule 1647: Conversion is an intentional exercise of dominion or control over a chattel that so seriously interferes with the right of another to control it that the actor may justly be required to pay the full value of the chattel at the time it was converted (e.g. if a bank refuses to return a collateral worth $10,000 dollars because of a mistake, the borrower can recover $10,000 in a conversion action even though the collateral is now worth only $7,000 since the proper measure of damage for conversion is the full market value of the chattel at the time of conversion - when the bank refused to return the collateral). [2011]
125
f D intentionally kills P's pet, causing great emotional distress to P, the claim most likely to result in the greatest monetary recovery for P is what?
Rule 1648: If D intentionally kills P's pet, causing great emotional distress to P, the claim most likely to result in the greatest monetary recovery for P is intentional infliction of mental suffering/ emotional distress . [2008]
126
In a tort action for battery does the degree/reasonableness of the battery matter?
Rule 1649: In a tort action for battery, the degree/ reasonableness of the battery does't matter; it is no defense to say that the touching did't last long or that force used was minimal or injury was not great (e.g. in an action for battery involving cigarette smoke blown onto P, whether the smoker's conduct was reasonable or not has no bearing on the D's liability since battery actions only require that D intended to make a harmful or offensive contact with P). [2008]
127
Lightly touching another person on purpose to gently give them notice is what tort and why?
Rule 1650: Lightly touching another person on purpose to gently give them notice is not assault or battery since it is a part of everyday life. [2006]
128
An owner out of possession may be subject to a suit for trespass for entry upon the land, with the lessee entitled to compensatory damages, plus punitive damages if what?
Rule 1651: An owner out of possession may be subject to a suit for trespass for entry upon the land, with the lessee entitled to compensatory damages, plus punitive damages if there is malicious intent by the owner plus injunctive relief if the trespass is ongoing. [2006]
129
A tort action for assault will fail if what?
Rule 1652: A tort action for assault will fail if the plaintiff knew the defendant's actions did not present a danger and plaintiff was not in fear of imminent bodily contact. [2006]
130
it is battery if you intentionally push another person, even if you thought you were helping the person, if what?
Rule 1653: It is battery if you intentionally push another person, even if you thought you were helping the person, if the person was in fact not in danger and you should have known. [1998]
131
A defendant is guilty of negligent infliction of emotional distress if what?
Rule 1654: A defendant is guilty of negligent infliction of emotional distress if the plaintiff suffers physical harm as a direct result of the defendant's negligent act. [1998]
132
Taking your neighbor's property without permission is conversion and the neighbor is entitled to what?
Rule 1655: Taking your neighbor's property without permission is conversion and the neighbor is entitled to the fair market value of the personal property if it has been lost or destroyed. [1998]
133
f a patient gives consent to one doctor to perform surgery on him but a different doctor performs the surgery, the doctor who performed the surgery will be liable for what?
Rule 1656: If a patient gives consent to one doctor to perform surgery on him but a different doctor performs the surgery, the doctor who performed the surgery will be liable to the patient for battery. [1998]
134
An action for intentional or reckless infliction of emotional distress will be dismissed if what?
Rule 1657: An action for intentional or reckless infliction of emotional distress will be dismissed if no reasonable person could conclude that the defendant's conduct was extreme and outrageous as to the plaintiff. [1998]
135
A private individual is not liable for false imprisonment if what?
Rule 1658: A private individual is not liable for false imprisonment if he reasonably believes that he is detaining a felon. [1998]
136
A driver who almost hits a parent and child with his car thereby causing severe emotional distress to the parent can be liable for WHAT if he WHAT?
Rule 1659: A driver who almost hits a parent and child with his car thereby causing severe emotional distress to the parent can be liable for negligent infliction of emotional distress if he was driving negligently. [1998]
137
What is required to recover under IIED?
Rule 1661: To recover under IIED , there has to be emotional distress, and it has to be severe. No physical harm is required. [1992]
138
To recover under intentional infliction of emotional distress against a creditor, what are the requirements?
Rule 1662: To recover under intentional infliction of emotional distress against a creditor, there has to be emotional distress, and it has to be severe and there must be a pattern of abuse and extreme conduct. [1992]
139
A pure verbal threat is not an assault. There must also be what?
Rule 1663: A pure verbal threat is not an assault. There must also be some overt action that threatened immediate physical harm to the victim such as shaking a fist or drawing a gun. [1992]
140
third party cannot recover for intentional infliction of emotional distress if what?
Rule 1665: A third party cannot recover for intentional infliction of emotional distress if the actor does not know of the third party's presence b/ c he lacks the intent). [1992]
141
Are children liable for their intentional torts
Rule 1666: Children are generally liable for their intentional torts. [1992]
142
A person is guilty of infliction of mental distress if what?
Rule 1668: A person is guilty of infliction of mental distress if he commits an intentional act of outrageous conduct causing emotional distress which results in severe mental distress. [1992]
143
A person threatened by another can recover on a claim for intentional infliction of emotional distress if what?
Rule 1669: A person threatened by another can recover on a claim for intentional infliction of emotional distress if the plaintiff suffered severe emotional distress as a consequence of the defendant's conduct. [1992]
144
To establish a claim based on false imprisonment, the plaintiff must show what?
Rule 1670: To establish a claim based on false imprisonment, the plaintiff must show that the defendant either intended to confine him, or at least that the defendant knew with substantial certainty that the plaintiff would be confined by the defendant's actions - being inadvertently locked in will not suffice. [1992]
145
intentionally running up to a person in a car at a traffic light may be considered assault if it
Rule 1672: Intentionally running up to a person in a car at a traffic light may be considered assault if it causes apprehension of harmful or offensive contact. [1992]
146
If you reasonably believe that a dog might bite you because the dog owner directed the dog at you, what claim can you assert against the dog owner?
Rule 1675: If you reasonably believe that a dog might bite you because the dog owner directed the dog at you, you can assert a claim of assault against the dog owner. [1992]
147
When does Malicious assault occur?
Rule 1676: Malicious assault occurs where the defendant recklessly causes physical injury. [1991]
148
Is mistake of borders a defense to trespass?
Rule 1677: Mistake of borders is not a defense to trespass - an encroachment is trespass even if the defendant thought it was his land (e.g. if you build a shed that encroaches onto your neighbor's property, the neighbor can sue you for trespass, even if you no longer own the property, provided the statute of limitations has not tolled). [1991]
149
if a doctor operates on the patient's leg and decides to also fix the patient's nose will this be a battery?
Rule 1679: A battery occurs when a defendant exceeds the scope of consent (e.g. if a doctor operates on the patient's leg and decides to also fix the patient's nose, this is a battery). [1991]
150
While contributory negligence is a defense against ordinary negligence of the defendant, it is not a defense when what?
Rule 1680: While contributory negligence is a defense against ordinary negligence of the defendant, it is not a defense when the defendant actually intended to inflict harm. Thus, contributory negligence is NOT a defense to intentional torts such as assault and battery or false imprisonment (e.g. to allow a contributory negligence or assumption of risk defense for battery would relieve batterers of part of the cost of their activity and make them more prone to commit a battery). [2019]
151
Under the doctrine of private necessity, a defendant has a privilege to enter a plaintiff's property if what?
Rule 1681: Under the doctrine of private necessity, a defendant has a privilege to enter a plaintiff's property if this is necessary to protect himself (or another) from serious harm. This privilege constitutes a complete defense to a trespass action against the defendant, but the defendant must pay the plaintiff for any damages to the plaintiff's property. If the defendant is forcibly evicted from the property by the plaintiff, the defendant can recover for trespass, assault and battery. [2019]
152
A person is privileged to restrain and confine an insane or intoxicated person to defend himself or 3rd persons if what?
Rule 1682: A person is privileged to restrain and confine an insane or intoxicated person to defend himself or 3rd persons if there is a risk of immediate harm (e.g. if an intoxicated person threatens other persons in a store, a customer is privileged to grab the drunk person and lock him in a room until the police arrive and will not be liable for battery or false imprisonment because the customer used reasonable force). [2019]
153
If a plantiff trespasses due to dire circumstances and the home owner denies entry, may the plantiff recover damages?
Rule 1683: Entry upon the land of another may be justified by necessity of the circumstances, and if a plaintiff who was trespassing due to dire circumstances suffers damage due to a defendant's refusal to permit the trespass, the plaintiff may recover for his damages (e.g. if a fisherman, reasonably believing that his boat might sink in a sudden storm, ties his boat to a private dock, and the dock owner, after ordering the boat to be removed, unties the boat, which promptly washes to a cliff and is destroyed, the fisherman can sue the owner to recover the cost of replacement, because under the doctrine of private necessity, a person is privileged to enter another's land to save his property from a reasonable risk of danger even if the owner protests). [2013]
154
A landowner is privileged to use reasonable force to stop a trespasser's entry onto his land, BUT the landowner will be liable for the trespasser's injuries if
Rule 1684: A landowner is privileged to use reasonable force to stop a trespasser's entry onto his land, BUT the landowner will be liable for the trespasser's injuries if the landowner causes serious injury to the trespasser even though the trespasser did not threaten the landowner with serious injury (e.g. a homeowner who repeatedly hits a 12-year old child found in his garage with a baseball bat is liable for the trespasser's injuries since the force he used could and did cause serious injury even though the child did not threaten the homeowner with serious injury). [2011]
155
A landowner has no right to forcibly expel a trespasser or a trespasser's property when what?
Rule 1685: A landowner has no right to forcibly expel a trespasser or a trespasser's property when the trespasser was driven by necessity to trespass on his land, and the landowner is liable for any damage to the trespasser or his property if he chooses to expel anyway (e.g. parking your vehicle on someone else's property without their permission to protect the vehicle from a violent storm is not trespass due to the privilege of private necessity, and if the landowner uses any degree of force to expel the vehicle, the landowner is liable for any damage to the vehicle). [2011]
156
What must a defedant have to justify a use of deadly force?
Rule 1686: To justify the use of deadly force, a defendant must have a reasonable apprehension of loss of life or great bodily injury (e.g. if D shoots his neighbor when the neighbor approaches him because D actually thought his neighbor was armed (although D cannot explain why he had this belief), D is liable for battery due to lack of justification to use a gun for self-defense since the neighbor was alone and unarmed and did not threaten serious injury). [2011]
157
Will a landowner be held liable if he places barbed wire on top of a fence on his property?
Rule 1687: The warning of a non-deadly deterrent absolves a landowner of liability (e.g. a landowner is not liable if he places barbed wire on top of a fence on his property, b/ c barbed wire is not likely to cause death or serious bodily injury and the wire itself being visible serves as notice of the danger). [2008]
158
To support the privilege of self- defense, a defendant must do what?
Rule 1688: To support the privilege of self- defense, a defendant must use no more force than he reasonably believes necessary to protect himself against death or serious bodily harm (actual belief or actual fear is irrelevant - the use of force must be objectively reasonable given the threat). [2008]
159
person impliedly consents to battery by participating in an activity that usually results in harmful or offensive contact, and has no cause of action unless what?
Rule 1689: A person impliedly consents to battery by participating in an activity that usually results in harmful or offensive contact, and has no cause of action unless the tortfeasor intentionally used force that exceeded his consent. [1998]
160
When is Self-defense permissible?
Rule 1690: Self-defense is permissible if a reasonable person under the circumstances would have believed that they were about to be attacked. [1992]
161
If A is fighting B and C tells A to stop or he will shoot, if A sues C for assault, A will lose if what?
Rule 1691: If A is fighting B and C tells A to stop or he will shoot, if A sues C for assault, A will lose if it was apparent that A was about to inflict serious bodily harm on B. [1992]
162
A person who assaults someone can rely on the privilege of self-defense only if what?
Rule 1693: A person who assaults someone can rely on the privilege of self-defense only if a reasonable person under the circumstances would have believed that he was about to be attacked. [1992]
163
: In the case of self-defense and mistaken identity, if a person knows that the other's intention to attack him is inspired by mistaken identity, he is not privilaged to use force to defend himself if WHAT?
Rule 1694: In the case of self-defense and mistaken identity, if a person knows that the other's intention to attack him is inspired by mistaken identity, he is not privileged to use force to defend himself if he has time to correct the mistake and prevent the attack. [1991]
164
Implied consent to battery is not valid if not what?
Rule 1695: Implied consent to battery is not valid if a reasonable person felt they were forced to submit. [1991]
165
If a person, in the course of protecting himself, accidentally injures a bystander, will he be held liable?
Rule 1698: If a person, in the course of protecting himself, accidentally injures a bystander, he is nevertheless protected by the defense, because the scope of self-defense includes bystanders accidentally injured. [1991]
166
May deadly force be used to apprehend a fleeing misdemeanor?
Rule 1700: Deadly force may not be used to apprehend a fleeing misdemeanor. If you use deadly force under the reasonable honest mistaken belief it was a fleeing felon, you are criminally liable for homicide if you kill him. [1991]
167
A defendant will be subject to strict liability if what?
Rule 1701: A defendant will be subject to strict liability if he is engaged in an abnormally dangerous activity - an activity is abnormally dangerous if the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised and the activity is not commonly engaged in. Strict liability for an abnormally dangerous activity exists only if harm that actually occurs results from the risk that made the activity abnormally dangerous in the first place. [2019]
168
What liability is held to someone who is carrying on an abnormally dangerous activity?
Rule 1702: A fumigation company can be held strictly liable for its activity because fumigation is an ultrahazardous activity that involves a risk of serious harm to the person, land, or chattels of others which cannot be eliminated by the exercise of the utmost care, and is not a matter of common usage. One carrying on an abnormally dangerous activity is subject to strict liability for the resulting harm even if it is caused by the unexpectable innocent, negligent or reckless conduct of a third person (e.g. if fumigation gas spreads from one condominium unit to another because of negligently constructed walls, the fumigation company will still be held strictly liable). [2019]
169
two young men are drag racing down a public street and one of them collides with P's car, who will be liable? And for what amount?
Rule 1703: If 2 or more wrongful tortfeasors act in concert (e.g. drag racing), even if only one D directly causes P's injuries, all the D's will be held liable for the full amount of the damages (settling with one D does not discharge the others) and P can go against any or all Ds regardless of their relative percentage of fault (e.g. if two young men are drag racing down a public street and one of them collides with P's car, both Ds will be held liable even though only one of them actually came in contact with the car b/c the tortious conduct of one encouraged the tortious behavior of the other and the combination led to the harm caused). [2019]
170
e.g. if there is a sign that says beware of the guard dog and plaintiff is aware the dog is vicious, but he trespasses anyway and is bitten, what liability will result?
Rule 1704: A plaintiff's contributory negligence in knowingly and unreasonably subjecting himself to the risk that a wild animal or an abnormally dangerous domestic animal will do harm to his person, land or chattels, is a defense to strict liability (e.g. if there is a sign that says beware of the guard dog and plaintiff is aware the dog is vicious, but he trespasses anyway and is bitten, no strict liability attaches even if the plaintiff had limited rights to be on the land because the plaintiff's assumption of the risk of harm from the animal is a defense to strict liability). [2017]
171
trict liability for injuries caused by abnormally dangerous activities is limited to what kind of activity?
Rule 1705: Strict liability for injuries caused by abnormally dangerous activities is limited to the kind of harm that makes the activity abnormally dangerous (e.g. if a plaintiff sues a defendant for his broken neck because his car crashed into a tree after hitting a drum of extremely hazardous chemicals that fell from the defendant's truck, the plaintiff's strict liability claim will fail because his neck injury was not caused by the hazardous nature of the chemical and a strict liability based on an abnormally dangerous activity requires the actual injury to be caused by the same type of risk that makes the activity abnormally dangerous in the first place, which in this case would be chemical poisoning or contamination). [2013]
172
To be strictly liable for abnormally dangerous activities, the damage/ injury must be what?
Rule 1706: To be strictly liable for abnormally dangerous activities, the damage/ injury must be of the kind of harm that makes the activity abnormally dangerous (e.g. although the manufacture of explosives is an abnormally dangerous activity, strict liability does NOT apply if a heavy tile blows off the roof of an explosives plant during a storm and injures a pedestrian). [2008]
173
What liability will result from an owner of a wild animal or an abnormally dangerous animal?
Rule 1707: An owner of a wild animal or an abnormally dangerous animal is strictly liable for the harm caused to a person subjected to fear of attack by the animal (it is foreseeable the person is likely to hurt himself or third persons in his effort to escape). [2006]
174
Are construction companies strictly liable for inherently dangerous conditions?
Rule 1711: Construction companies are not strictly liable for inherently dangerous conditions. [1992]
175
A landowner that knows his domestic animal has dangerous propensities what type of liability will the landowner have?
Rule 1713: A landowner is strictly liable for domestic animals that have known dangerous propensities. [1991]
176
An owner of a trespassing animal is strictly liable for damages caused if what?
Rule 1714: An owner of a trespassing animal is strictly liable for damages caused if it is foreseeable that the animal will trespass and cause damage. [1991]
177
An owner of dangerous animals is strictly liable for injuries caused by the animal, provided what?
Rule 1715: An owner of dangerous animals is strictly liable for injuries caused by the animal, provided the injured person did nothing, voluntarily or consciously, to bring about the injury. [1991]
178
The operator of an aircraft is subject to strict liability if what?
Rule 1717: The operator of an aircraft is subject to strict liability if physical harm occurs to another's land during the aircraft's ascent, descent, or from objects falling from the plane. [1991]
179
A defendant carrying on an ultra- hazardous activity is liable for harm even if what?
Rule 1718: A defendant carrying on an ultra- hazardous activity is liable for harm even if the harm is caused by the unexpectable conduct of a third person (any kind of conduct), action of an animal, or operation of a force of nature; typically, contributory negligence by the plaintiff will NOT bar his recovery in strict liability (e.g. being kicked by vicious horse when he is't watching out), but a plaintiff's assumption of the risk of harm from such an abnormally dangerous activity is a defense that bars his recovery for the harm. [2019]
180
To impose strict liability, the harm must be from what?
Rule 1719: To impose strict liability, the harm must be from a foreseeable or reasonably anticipated use - strict liability is limited to the type of harm that makes the conduct abnormally dangerous. (e.g. if a plaintiff gets stuck on an elevator that stopped between floors due to a manufacturing defect, and then after waiting, decides to jump out and gets injured, the elevator maker is not strictly liable because the harm was not foreseeable, BUT if the plaintiff was injured due to the elevator plummeting or a fire, strict liability would apply). [2019]
181
Assumption of the risk is a defense to all strict liability torts - if what?
Rule 1720: Assumption of the risk is a defense to all strict liability torts - if a plaintiff had options and still assumed the risk, strict liability will be cut off (e.g. in a state that regards bomb manufacturing as an abnormally dangerous activity, if a state explosives inspector is injured while inspecting an in-state bomb-making factory due to a bomb that unexpectedly explodes, in a strict liability claim by the inspector against the factory, the factory's best defense is that the inspector assumed the risk of injury by voluntarily taking on a job that regularly exposes him to dangerous substances). [2011]
182
A manufacturer is NOT responsible for injuries resulting from substantial alterations to, or modifications of a product by a third party that render the product defective or otherwise unsafe, except where what?
Rule 1721: A manufacturer is NOT responsible for injuries resulting from substantial alterations to, or modifications of a product by a third party that render the product defective or otherwise unsafe, except where the product is purposefully manufactured to permit or encourage its use without a designed safety feature (e.g. if a snow blower is improperly repaired after it left the defendant manufacturer's control and the operating manual contained a warning against making the very repair performed, the defendant is not liable even if the repairman didn't have the manual available). [2019]
183
A manufacturer's duty to deliver a safe product to the market free of manufacturing defects and thus what liability will result? Is the duty delegable?
Rule 1722: A manufacturer's duty to deliver a safe product to the market free of manufacturing defects (e.g. a defect in the materials in the product) is non-delegable, and thus there is strict liability for it. Anyone in the chain of distribution (from the component parts manufacturer to the distributor and down to the retailer) is strictly liable to the purchaser for manufacturing defects (although each defendant in the chain has a right of indemnity against the defendant next up in the chain). Thus, retailers who sell products that are unsafe due to manufacturing defects are also strictly liable in tort. [2019]
184
What duty does A manufacturer or seller haave to warn regarding product-related danger which is obvious or of which person should've known?
Rule 1723: A manufacturer or seller has no duty to warn of a product-related danger which is obvious or of which the person who claims to be entitled to a warning knows, should know, or should, in using the product, discover (e.g. in a product liability action, a ceiling fan manufacturer will not be found liable if P falls off a ladder while installing the ceiling fan because D has no duty to warn or provide instruction about the obvious danger of falling off a ladder when using it to install a ceiling fan). [2011]
185
If a product is dangerous without a safety device, and it is feasible to install the device, a manufacturer will be found guilty of negligence if what?
Rule 1724: If a product is dangerous without a safety device, and it is feasible to install the device, a manufacturer will be found guilty of negligence if he sells the product without the safety device, even if he warns the buyer. [2008]
186
in a strict product liability action, if P's expert testifies that the product was defectively designed but could not determine whether the accident was caused by the design defect or a manufacturing defect while D's expert testified that the product was not defective, WHO is entitled to a directed verdict?
Rule 1725: In a strict product liability action, if P's expert testifies that the product was defectively designed but could not determine whether the accident was caused by the design defect or a manufacturing defect while D's expert testified that the product was not defective, neither side is entitled to a directed verdict and the case should be sent to a jury because a jury reasonably could conclude that the harm was probably caused by a defect present in the product when it was sold. [2008]
187
A medical professional cannot be held strictly liable for defective medical equipment that he uses on a patient because?
Rule 1726: A medical professional cannot be held strictly liable for defective medical equipment that he uses on a patient since the medical professional is not in the business of selling the equipment. [2006]
188
A store selling a product that has a manufacturing defect making it dangerous to the consumer is held to what liability? What if the consumer was contributory negligent?
Rule 1727: A store selling a product that has a manufacturing defect making it dangerous to the consumer is strictly liable for the injuries the product causes, even if the consumer was contributorily negligent. [2006]
189
In an action based on strict liability in tort for failure to warn, a defendant is held to the standard of what?
Rule 1728: In an action based on strict liability in tort for failure to warn, a defendant is held to the standard of a prudent manufacturer who knew of or should have known the risks at the time the product was delivered. [1998]
190
A plaintiff injured by a design defect will not succeed in a negligence cause of action against an engineer whose work was unrelated to the design defect since what?
Rule 1730: A plaintiff injured by a design defect will not succeed in a negligence cause of action against an engineer whose work was unrelated to the design defect since the engineer owed no duty to the plaintiff to prevent that particular risk of harm. [1998]
191
A claim based on strict liability will succeed against the manufacturer even if the injury was due to what?
Rule 1736: A claim based on strict liability will succeed against the manufacturer even if the injury was due to intervening causes so long as the resulting injury from the intervening causes was foreseeable to the manufacturer. [1992]
192
When is a seller negliget for a defective product? (2 requirements)
Rule 1737: A seller is negligent if the (1) product was defective, and (2) the defect would have been discovered if the seller had exercised reasonable care in inspecting the product. [1992]
193
When can a claim of negligence be asserted against a manufacturer?
Rule 1738: If a manufacturing defect could have been discovered through the exercise of reasonable care by the manufacturer, a claim of negligence can be asserted. [1992]
194
A claim based on strict liability can be asserted against the manufacturer if what?
Rule 1740: If a product was defectively designed and the defect results in injury, a claim based on strict liability can be asserted against the manufacturer. [1992]
195
A store that reconditions tools and sells them is liable for injuries under strict liability unless what?
Rule 1742: A store that reconditions tools and sells them is liable for injuries under strict liability unless the consumer knew that the product was damaged. [1992]
196
To assert a claim based on strict liability against a manufacturer, it must be shown that
Rule 1743: To assert a claim based on strict liability against a manufacturer, it must be shown that the product was defective and unreasonably dangerous to consumers. [1992]
197
To assert a claim of strict liability, the product must fail because of what?
Rule 1744: To assert a claim of strict liability, the product must fail because of a defect that was present when the product left the factory. [1992]
198
Strict Liability for an item occurs when ?
Rule 1749: Strict Liability occurs if an item was defective and unreasonably dangerous to the plaintiff. [1992]
199
What is the risk/utility test? How is it applied in the case of a design hazard?
Rule 1751: In the case of a design hazard, the risk/ utility test must be applied - under this test, a product is defective if the magnitude of the danger outweighs the utility of the product. [1991]
200
What is a defense to a claim based on srict liability?
Rule 1754: A defense to a claim based on strict liability in tort is that the product was being put to an improper use. [1992]
201
A claim of strict liability against a manufacturer will fail if what?
Rule 1755: A claim of strict liability against a manufacturer will fail if the product was changed or modified after it left the factory. [1992]
202
To assert a claim based on strict liability against a manufacturer, the product must be what?
Rule 1756: To assert a claim based on strict liability against a manufacturer, the product must be in substantially the same condition at the time the injury occurred as when it was purchased from a retailer. [1992]
203
In a nuisance claim, to determine the defendant unreasonably interferes with the plaintiff's use or enjoyment of the property, the court will do what?
Rule 1757: In a nuisance claim, to determine the defendant unreasonably interferes with the plaintiff's use or enjoyment of the property, the court will balance all the factors that weigh in the plaintiff's favor versus those that weigh in defense of the defendant and then the jury will determine whether the nuisance is unreasonable - a nuisance claim is not defeated if the plaintiff came to the nuisance, and whether the plaintiff moved to the nuisance should not be a controlling factor, but should simply be a factor that is weighed in favor of the defendant. [2019]
204
Will a hyper sensitive P be able to recover for nuisance?
Rule 1758: A hypersensitive plaintiff will not be able to recover for nuisance no matter how great the harm to the plaintiff's use and enjoyment, if an ordinarily sensitive person would not be unduly bothered (e.g. if a homeowner who works nights cannot sleep during the day because of a faint noise produced by a nearby factory that operates only during the daytime, the homeowner does not have an actionable nuisance claim against the factory since it is his unusual daytime sensitivity to sound, and not the factory's substantial and unreasonable act, that burdens his use and enjoyment of his land). [2013]
205
When does a private nuisance occur?
Rule 1759: A private nuisance occurs when a defendant substantially and unreasonably interferes with the plaintiff's use and enjoyment of his or her property - the interference need not directly damage the land or prevent its use in order to constitute a nuisance (e.g. the operation of a legally permitted brick kiln is a private nuisance if the kiln produces fumes that sicken customers on plaintiff's adjacent property). [2011]
206
Nuisance occurs if what?
Rule 1760: Nuisance occurs if there is a substantial and unreasonable interference with a perso's use and enjoyment of his property - the interference constitutes a nuisance if it causes significant harm of a kind that would be suffered by a normal member of the community (a hypersensitive P will not recover for nuisance unless the harm would also affect the use and enjoyment of the land by a normal member of the community). [2008]
207
Loud noise and bright lights coming from a neighbor is a private nuisance because what?
Rule 1761: Loud noise and bright lights coming from a neighbor is a private nuisance because it is a substantial and unreasonable interference with the use or enjoyment of one's land. [2006]
208
The neighbor of a person who does not maintain his property may argue that the lack of maintenance is WHAT?
Rule 1762: The neighbor of a person who does not maintain his property may argue that the lack of maintenance is a public nuisance that endangers the public health, safety, or welfare. [1998]
209
Disrupting the flow of a stream that flows through a perso's property is actionable under a nuisance theory if the defendant what?
Rule 1763: Disrupting the flow of a stream that flows through a perso's property is actionable under a nuisance theory if the defendant unreasonably interfered with the use and enjoyment of the plaintiff's property. [1998]
210
What claim can a person be subject to if he intentionally creates a condition that substantially and unreasonably interferes with a neighbor's use or ejoyment of his land?
Rule 1764: A person who intentionally creates a condition that substantially and unreasonably interferes with a neighbor's use or enjoyment of his land can be subject to a private nuisance claim. [1998]
211
What is a private nuisance?
Rule 1770: A private nuisance is a substantial and unreasonable interference with the use or enjoyment of one's land and a private nuisance claim may be brought by an individual for obnoxious odors. [1992]
212
A private party may only institute an action for public nuisance if the private party suffers what?
Rule 1771: A private party may only institute an action for public nuisance if the private party suffers "special damage" from the nuisance. The special damage must be of a different kind from that suffered by the public at large. [1992]
213
If a defendant makes repeated harassing phone calls to the plaintiff, is is an actionable private nuisance?
Rule 1772: If a defendant makes repeated harassing phone calls to the plaintiff, it is an actionable private nuisance, because it is an interference with plaintiff's comfort. [1991]
214
Recovery is available for public nuisance only if what?
Rule 1773: Recovery is available for public nuisance only if a private party has suffered some unique damage not suffered by the public at large (there needs to be a claim for special damages). [1991]
215
What is a public nuisance?
Rule 1775: A public nuisance unreasonably interferes with the health, safety, or property rights of the community. [1991]
216
A nuisance is what?
Rule 1776: A nuisance is unreasonable if the gravity of the harm caused outweighs the utility of the conduct. [1991]
217
A private nuisance must be what?
Rule 1777: A private nuisance must be offensive, inconvenient, or annoying to the average person in the community (e.g. a private nuisance claim will not succeed if the plaintiff is especially sensitive). [1991]
218
. if a newspaper photographer takes pictures of the partially decomposed body of a murdered 14-year-old girl and then the newspaper invites the public to its offices to view the photographs firsthand and purchase them will their be a cause of action?
Rule 1780: The media/ press has a 1st Amendment right to publish an accurate representation of a newsworthy event and even gruesome depictions of newsworthy events are not actionable if they are accurate (e.g. if a newspaper photographer takes pictures of the partially decomposed body of a murdered 14-year-old girl and then the newspaper invites the public to its offices to view the photographs firsthand and purchase them, as reprehensible as the newspaper's actions might be, the recovery of a dead body is "newsworthy" and there is no cause of action for invasion of privacy based on the publication of these private facts). [2019]
219
A defendant can be found liable for the tort of disclosure based on the widespread dissemination of confidential or private information about a plaintiff that is likely to cause embarrassment or hold the plaintiff up to ridicule or contempt, BUT an exception to this general rule WHAT?
Rule 1781: A defendant can be found liable for the tort of disclosure based on the widespread dissemination of confidential or private information about a plaintiff that is likely to cause embarrassment or hold the plaintiff up to ridicule or contempt, BUT an exception to this general rule is that the 1st Amendment allows for disclosure of information that is newsworthy and there is a legitimate public interest or justification for disclosing the information. [2017]
220
In a cause of action for slander (spoken defamation), special damages must be pleaded and proven (P must show actual out-of- pocket pecuniary loss suffered because of the defamation in terms of loss of business or some advantage P would have gotten otherwise), UNLESS the spoken defamation is slander per se involving: (4 REQUIR)
Rule 1782: In a cause of action for slander (spoken defamation), special damages must be pleaded and proven (P must show actual out-of- pocket pecuniary loss suffered because of the defamation in terms of loss of business or some advantage P would have gotten otherwise), UNLESS the spoken defamation is slander per se involving: (1) imputation of a crime of a serious nature; (2) loathsome disease (AIDS); (3) business or trade; or (4) serious sexual misconduct or unchastity (e.g. although a defamatory statement concerning a plaintiff that is orally communicated to a third party is a slander that, unlike libel, requires for recovery a proof of pecuniary loss, the plaintiff can recover in an action for slander without proof of a pecuniary loss if the defamatory statement accuses the plaintiff of committing a serious crime such as rape or arson). [2013]
221
An action for intrusion upon seclusion will lie if the defendant commits: (2 REQUIR)
Rule 1783: An action for intrusion upon seclusion will lie if the defendant commits: (1) an intentional intrusion (physical or otherwise); (2) upon solitude, seclusion, or private affairs that would be highly offensive to a reasonable person (e.g. if a defendant sells to a tabloid some information gained by opening plaintiff's e-mail after secretly observing plaintiff type his email password, the plaintiff can recover damages from the defendant for invasion of privacy under the intentional tort of intrusion upon seclusion b/ c the information sought was not open to public view or had been voluntarily revealed to others and the defendant's intentional intrusion was highly offensive to a reasonable person, even if the information was true and concerned matters of public interest). [2013]
222
in order to recover damages for libel or defamation, a public official or public figure must be able to show by clear and convincing evidence that the defendand did WHAT?
Rule 1784: In order to recover damages for libel or defamation, a public official or public figure must be able to show by clear and convincing evidence that the defendant acted with actual malice (e.g. if a newspaper editor negligently fails to investigate and publishes a false accusation that a politician engaged in corruption, the politician cannot recover in a defamation action against the editor since a defamation action against a public official or public figure requires actual malice in the form of knowing falsity or reckless disregard as to the statement's truth). [2011]
223
When is the common law right of publicity violated?
Rule 1785: The common law right of publicity is violated if an advertisement, when viewed as a whole, leaves little doubt that the ad is intended to depict a specific celebrity who has not consented to the use of his identity (e.g. an ad showing a distinctive race car and race suit of a famous race- car driver is misappropriation if the driver's permission is not obtained). [2008]
224
Defamation is not actionable where the publication is what?
Rule 1786: Defamation is not actionable where the publication is consented to, authorized, invited, or procured by the plaintiff, regardless of the plaintiff's injuries or the speaker's intent. [2006]
225
A newspaper will not liable for invasion of privacy if what?
Rule 1788: A newspaper will not liable for invasion of privacy if the story was a fair and accurate report of a newsworthy event or based on a matter of public record. [1998]
226
Is it defamation if you reasonably believed the defamatory statemets to be true/
Rule 1793: It is not defamation if the defendant reasonably believed his defamatory statement to be true. [1992]
227
If a bill collector calls you a worthless bum in front of your neighbors, you will not prevail in an action for slander unless what?
Rule 1795: If a bill collector calls you a worthless bum in front of your neighbors, you will not prevail in an action for slander unless you suffered some special damages [1992]
228
A plaintiff may recover on a claim based on invasion of privacy if what?
Rule 1799: A plaintiff may recover on a claim based on invasion of privacy if a defendant publicizes the details of the plaintiff's private life, unless the information is related to a legitimate public concern. [1992]
229
A newspaper is not liable for defamation of a private person if what?
Rule 1800: A newspaper is not liable for defamation of a private person if it exercised ordinary care in determining whether the story was true or false. [1992]
230
Defamation of a private person occurs if what?
Rule 1801: Defamation of a private person occurs if the defendant has substantial doubts about the accuracy of the information he is conveying. [1991]
231
A cause of action for defamation requires WHAT?
Rule 1802: A cause of action for defamation requires that someone else hear it - if you defame someone in Russian, and no one knows Russian, there is no defamation. [1991]
232
The publication requirement of slander is satisfied if what?
Rule 1803: The publication requirement of slander is satisfied if it was made under circumstances where it was overheard, and the defendant should have reasonably foreseen that it would be overheard. [1991]
233
A tort fraud action can be maintained if what?
Rule 1804: Where a legal duty exists independent of a contractual obligation, a plaintiff may recover in tort. A tort fraud action can be maintained if a party to a contract makes a promise with no intention to perform. The elements of the tort of fraud are satisfied if a party fraudulently makes a material misrepresentation of fact on which the P had the right to rely, and actually did rely, which caused an injury. Since fraud is a contract tort, contract rules for damages apply. [2019]
234
A plaintiff can assert a claim for fraudulent misrepresentation against a manufacturer if what?
Rule 1805: A plaintiff can assert a claim for fraudulent misrepresentation against a manufacturer if the manufacturer intentionally and fraudulently misrepresents a feature of a product, the plaintiff relies on that misrepresentation, and the misrepresentation results in damages (not just that the product did't do what the manufacturer claimed). (e.g. if a vaporizer is packaged in a box containing a picture of the device blowing steam next to a sleeping baby and the manual states, This device will shut off automatically when the water is gone. It is safe and spill-proof, if a child trips over the vaporizer and is seriously burned by spilled hot water, the child has made a prima facie claim of misrepresentation against the manufacturer because a jury can find that the manufacturer intentionally and fraudulently represented that the vaporizer is spill-proof). [2013]
235
In negligent misrepresentation actions, pecuniary losses are recoverable, but damages for emotional distress are not, unless what?
Rule 1806: In negligent misrepresentation actions, pecuniary losses are recoverable, but damages for emotional distress are not, unless the misrepresentation involves a risk of physical harm. [2006]
236
A person is only liable for intentional misrepresentation if what?
Rule 1808: A person is only liable for intentional misrepresentation if he makes a misrepresentation with the knowledge the statement is false and with the intent to induce the plaintiff's reliance on the misrepresentation. [1992]
237
An action for negligent misrepresentation is confined to misrepresentations made in a _______ setting and liability will attach only if ______?
Rule 1810: An action for negligent misrepresentation is confined to misrepresentations made in a commercial setting, and liability will attach only if reliance by the particular plaintiff could be contemplated. [1991]
238
What is intentional misrepresentation?
Rule 1811: Intentional misrepresentation (i.e. fraud or deceit) is a misrepresentation of a knowingly false material fact with the intent to induce reliance by the plaintiff (e.g. someone lied to you with the goal of cheating you, and you fell for it and was cheated). [1991]
239
A tort COA based on interference with K cannot be between the parties to a K - it must be between who?
Rule 1812: A tort COA based on interference with K cannot be between the parties to a K - it must be between a party to the K and a 3rd person b/ c claims of breach between parties to a K are governed by K law, not tort law. [2008]
