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Torts Flashcards

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1
Q

TEST TIPS
test frequency

[ overview ]

A

25 MBE Qs

50% MEE test frequency

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2
Q

THE BASICS
3 types of torts

[ overview ]

A
  1. Intentional (including malice and deception)
  2. Negligence
  3. Strict liability torts
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3
Q

THE BASICS
3-step analysis

[ overview ]

A
  1. Prima facie elements of each tort and how to apply them
  2. Defenses available for each tort and how to apply them
  3. Who may held liable and in what amount
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4
Q

THE BASICS
7 intentional torts

[ intentional torts ]

A
  1. battery
  2. assault
  3. False imprisonment
  4. IIED
  5. Trespass to land
  6. Trespass to chattels
  7. Conversion
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5
Q

THE BASICS
4 torts against the person

[ intentional torts ]

A
  1. battery
  2. assault
  3. False imprisonment
  4. IIED
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6
Q

THE BASICS
3 torts against property

[ intentional torts ]

A
  1. Trespass to land
  2. Trespass to chattels
  3. Conversion
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7
Q

THE BASICS
who may commit an intention tort?

[ intentional torts ]

A

Anyone, regardless of age, experience, or intelligence (this is why insanity and intoxication aren’t defenses to intentional torts)

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8
Q

THE BASICS
insanity as defense to intentional torts
»

[ intentional torts ]

A

TRICK. It’s not, nope.

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9
Q

THE BASICS
intoxication as defense to intentional torts

[ intentional torts ]

A

DOUBLE TRICK, TRICK UR FACE OFF. It’s not, nope.

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10
Q

THE BASICS
in determining whether D’s actions are offensive for purposes of battery, assault, or IIED, does court consider P’s super-sensitivity?

[ intentional torts ]

A

No, P is treated like an average person, UNLESS D ACTUALLY KNOWS of P’s sensitivity

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11
Q

THE BASICS
are Ps required to prove damages for intentional torts?

[ intentional torts ]

A

No, nominal damages are presumed, except for IIED and trespass to chattels

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12
Q

THE BASICS
will an award of nominal damages support a punitive damages award?

[ intentional torts ]

A

YES

punitive damages may be awarded for intentional torts if D acts MALICIOUSLY

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13
Q

PRIMA FACIE ELEMENTS
4 key elements

[ intentional torts ]

A 
1. TORTIOUS ACT by D
(which includes any WILLED MUSCULAR MOVEMENT,
but does NOT INCLUDE
- sleepwalking
- convulsions
- reflexes
- hypnosis
- being physically forced by another person)
  1. SPECIFIC OR GENERAL INTENT by D to commit the act
    (satisfied if D
    - acts with purpose of producing the consequence OR
    - acts knowing consequence is substantially certain to occur)
  2. CAUSATION
    (similar to negligence, except courts take a broader view of proximate cause)
  3. DAMAGES
    (required for IIED and TTC)
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14
Q

PRIMA FACIE ELEMENTS
liability for failure to act (aka omission)
» general rule + 4 exceptions

[ intentional torts ]

A

Exceptions = may be a duty to act if

  1. SPECIAL RELATIONSHIP btwn injured person and D
    (ex = family member, employer-employee, principal-agent, owner/occupier-invitee, common carrier-passenger, innkeeper-guest, driver-passenger, school-student)
  2. D CAUSED THE PERIL (innocently or negligently) and then did not help
  3. D UNDERTOOK TO RESCUE person and then quit which precluded others from attempting rescue or left P in worse condition
  4. TARASOFF WARNING (majority approach)
    = mental-health professional has a duty to warn the victim if patient makes specific threats regarding an identifiable victim
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15
Q

PRIMA FACIE ELEMENTS
transferred intent doctrine

[ intentional torts ]

A

intent to commit one tort may be transferred to ANOTHER TORT

an intent to commit a tort against one person may be transferred to ANOTHER PERSON

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16
Q

PRIMA FACIE ELEMENTS
use of transferred intent doctrine

[ intentional torts ]

A

may be used only where BOTH intended tort and committed tort are one of following:

  1. battery
  2. assault
  3. false imprisonment
  4. trespass to land
  5. trespass to chattels
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17
Q

BATTERY
4 elements

[ intentional torts ]

A
  1. D acts intending to bring about or with substantial certainty of
  2. harmful contact or offensive contact (direct or indirect) with P
  3. causation
  4. lack of consent (majority view)
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18
Q

BATTERY
examples of harmful contact

[ intentional torts ]

A

injury, pain, or disfigurement

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19
Q

BATTERY
standard for whether contact is harmful or offensive

[ intentional torts ]

A

as judged by a reasonable person

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20
Q

ASSAULT
3 elements

[ intentional torts ]

A
  1. D acts intending to (or with substantial certainty that it will occur)
  2. cause a reasonable expectation
  3. of an immediate battery to P
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21
Q

ASSAULT
merger

[ intentional torts ]

A

NOPE, assault and battery do NOT merge under tort law

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22
Q

FALSE IMPRISONMENT
confinement/restraint
» 3 key examples of

[ intentional torts ]

A

confinement or restraint may be by:

  1. physical barriers (locked room, cage, cell)
  2. physical force
  3. threats of immediate force to P, P’s family (not 3Ps), or P’s property (purse or car)
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23
Q

FALSE IMPRISONMENT
confinement/restraint
» omission as

[ intentional torts ]

A

if D owes P a duty (or they have a prior understanding) to release P, an omission may constitute false imprisonment
(ex = jailor must release a prisoner at the end of his sentence)

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24
Q

FALSE IMPRISONMENT
confinement/restraint
» length of

[ intentional torts ]

A

a confinement for one minute may constitute false imprisonment, but P must be AWARE of confinement (or, if unaware, must be INJURED by confinement)

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25
Q

FALSE IMPRISONMENT
bounded area

[ intentional torts ]

A

area that is bounded on all sides from which there is no reasonable and known means of escape

NOTE = P is under no duty to search for an exit and is not required to use a dangerous or humiliating exit

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26
Q

FALSE IMPRISONMENT
damages

[ intentional torts ]

A

P may recover damages for the confinement and for injuries incurred in reasonable attempts to escape

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27
Q

FALSE IMPRISONMENT
3 defenses

[ intentional torts ]

A
  1. Shopkeeper’s defense
  2. False arrest defense for police
  3. False arrest defense for private citizens
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28
Q

FALSE IMPRISONMENT
defenses
» shopkeeper’s defense

[ intentional torts ]

A

available if the shopkeeper

  1. reasonably believes that a theft has occurred;
  2. the manner of the detention and the force used are reasonable; and
  3. the period of confinement is reasonable (minutes, but not hours)

ALSO applies to assault and/or battery claims against shopkeepers

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29
Q

FALSE IMPRISONMENT
defenses
» false arrest defense for police

[ intentional torts ]

A

a police officer has a defense to false imprisonment if

  1. the arrest is made pursuant to a valid warrant OR
  2. the arrest is for a felony and the officer reasonably believes that the felony occurred and that the plaintiff committed it OR
  3. the arrest is for a misdemeanor (that resulted in a breach of the peace) committed in the officer’s presence
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30
Q

FALSE IMPRISONMENT
defenses
» false arrest defense for private citizens

[ intentional torts ]

A

a private citizen has a defense if

  1. the arrest is for a felony, the felony in fact occurred, and the citizen reasonably believes that the plaintiff committed it OR
  2. the arrest is for a misdemeanor (that resulted in a breach of the peace) committed in the citizen’s presence
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31
Q

IIED
3 elements

[ intentional torts ]

A
  1. Extreme and outrageous conduct by D
  2. Intentionally designed to inflict distress or reckless (i.e., a deliberate disregard of a high probability of emotional distress)
  3. P suffers severe emotional distress

(no physical injury or physical consequences are required)

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32
Q

IIED
definition of extreme/outrageous conduct

[ intentional torts ]

A

conduct that exceeds all bounds of decency tolerated in a civilized society

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33
Q

IIED
examples of extreme/outrageous conduct

[ intentional torts ]

A

physical threats, heavy-handed collection efforts, willful mishandling of corpses, cruel practical jokes

words, insults, or offensive language are generally insufficient
BUT non-outrageous conduct may become outrageous if
- it is frequently repeated or done in public
- P is a child, elderly person, pregnant woman, or someone the defendant knows is sensitive
- D is an inn-keeper or common carrier (bus, train, airplane) AND P is a guest or passenger (in such cases, even gross insults suffice)

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34
Q

IIED
examples of severe emotional distress

[ intentional torts ]

A

neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition that is recognized and diagnosed by professionals

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35
Q

IIED
essay point

[ intentional torts ]

A

For behavior that “nearly misses” qualifying as an assault, false imprisonment, defamation, or invasion of privacy, IIED is often used as a FALL-BACK TORT on essay questions

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36
Q

IIED
defense

[ intentional torts ]

A

In rare cases (Falwell?!), the First Amendment may be a defense to IIED

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37
Q

IIED
can P recover for IIED or NIED as a result of D’s physical harm of another?

[ intentional torts ]

A

yes, under TWO circumstances

  1. if D injured the other person for the purpose of causing P emotional distress (= IIED)
  2. If P and the injured person are close relatives AND P was present at the scene of the injury AND P personally observed the event (= IIED or NIED)
    - in some cases, P must also prove that D knew P was present or acted with reckless disregard to P’s presence
    - In addition, some states allow recovery by persons who are not close relatives, but only if that person suffers physical consequences (like a heart attack) from the distress

NOTE that these actions are DERIVATIVE = if the injured party was at fault, P may not recover (or may not recover the full amount of her damages)

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38
Q

TRESPASS TO LAND
3 elements

[ intentional torts ]

A
  1. D acts intending to (or with substantial certainty that it will occur)
  2. enter
  3. P’s land (including surface and usable space above/below)
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39
Q

TRESPASS TO LAND
intent required

[ intentional torts ]

A

the intent required is simply the intent to ENTER the land

there is NO requirement to show intent to trespass or wrongfully enter the land

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40
Q

TRESPASS TO LAND
3 ways to satisfy element of entry

[ intentional torts ]

A
  1. D enters the land or wrongfully stays (or allows an item to stay) on the land
  2. D pushes or chases another on to the land
  3. D causes an object heavier than air to enter or cross the land (smoke, noise, shockwaves, and sound are insufficient but don’t be sad—see nuisance)
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41
Q

TRESPASS TO LAND
who may assert trespass actions?

[ intentional torts ]

A

may be asserted by owners or occupiers (ex = tenants) or even adverse possessors

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42
Q

TRESPASS TO LAND
damages

[ intentional torts ]

A

Proof of actual damages is not required because nominal damages are presumed

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43
Q

TRESPASS TO CHATTELS
4 elements

[ intentional torts ]

A

x

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44
Q

TRESPASS TO CHATTELS
4 elements

[ intentional torts ]

A
  1. D acts intending to
    (or with substantial certainty that it will occur)
    - intent required is the intent to do the act, not the intent to damage or dispossess or steal
  2. interfere with or damage P’s personal property
    - applies to tangible property only, not land or services
  3. causation
  4. damages
    (dispossession or injury)
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45
Q

TRESPASS TO CHATTELS
mistake of ownership

[ intentional torts ]

A

Nope, not a defense

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46
Q

TRESPASS TO CHATTELS
interference/damage required

[ intentional torts ]

A

D’s wrongful possession or damage suffices

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47
Q

TRESPASS TO CHATTELS
who may assert claims for trespass to chattels and conversion?

[ intentional torts ]

A

may be asserted by
• owners
• lessees
• even adverse possessors of the property

BUT may NOT be asserted by thieves

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48
Q

TRESPASS TO CHATTELS
measurement of damages

[ intentional torts ]

A

= fair rental value for any dispossession period OR the cost of repair

NOTE = this tort requires proof of ACTUAL damages

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49
Q

CONVERSION
4 elements

[ intentional torts ]

A
  1. D acts intending to
    (or with substantial certainty that it will occur)
  2. Seriously interfere with or damage P’s personal property
    - applies to tangible property only, not land or services
  3. causation
  4. damages
    (dispossession or injury)

aka SAME as trespass to chattels EXCEPT conversion applies if the interference or damage to personal property is SERIOUS

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50
Q

CONVERSION
damages

[ intentional torts ]

A

forced sale (D must pay the FMV of the property at time of conversion)

P may also elect replevin, plus damages for dispossession

Idk why this has to be said, but kinsler put it under damages?
- if D borrows personal property without permission and the property is seriously damaged or destroyed (even if damage was caused by 3P), this is conversion

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51
Q

CONVERSION
difference btwn conversion and TTC

[ intentional torts ]

A

a question of DEGREE

the GREATER D’s bad faith
= the MORE LIKELY it will be conversion

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52
Q

DEFENSES
6 defenses

[ intentional torts ]

A
  1. Consent
  2. Self-defense
  3. Defense of others
  4. Defense of property
  5. Public necessity
  6. Private necessity
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53
Q

DEFENSES
consent
» how may consent be given?

[ intentional torts ]

A

May be express = by words
- ex = “you may park on my land”

May be implied = by conduct or custom
- ex = participant in hockey impliedly consents to be “checked” or a participant in a pick-up basketball game impliedly consents to being pushed around a bit (BUT does not consent to an intentional punch in the face or a stabbing why does this need to be said?!)

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54
Q

DEFENSES
consent
» test for implied consent

[ intentional torts ]

A

Would a reasonable person have expected this contact?

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55
Q

DEFENSES
consent
» who may give consent?

[ intentional torts ]

A

Only those with CAPACITY

= no young kids, insane people, drunks

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56
Q

DEFENSES
consent
» can D exceed the scope of consent?

[ intentional torts ]

A

Yes, duh

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57
Q

DEFENSES
consent
» type of defense/burden of proof

[ intentional torts ]

A

affirmative defense for all intentional torts EXCEPT battery (for which P must prove lack of consent)

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58
Q

DEFENSES
defense of self/others/property
» when are such defenses available?

[ intentional torts ]

A

to use these defenses, D must REASONABLY BELIEVE that the tort is being committed or is about to be committed
(D does not have to be right, as long as his belief is reasonable)

D may NOT retaliate or preempt
(defense must be to prevent the tort)
BUT D CAN pursue a thief in hot pursuit

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59
Q

DEFENSES
defense of self/others/property
» how much force may be used?

[ intentional torts ]

A

D may use whatever force is REASONABLE under the circumstances (including deadly force) if D or 3P is facing DEATH OR SUBSTANTIAL BODILY HARM

to protect property, D may use any force NOT INTENDED OR LIKELY TO CAUSE DEATH OR SERIOUS BODILY INJURY (actual death or serious injury is not the test)
(ex = springs guns, booby traps, land mines, etc. may not be used to protect property)

for home invaders, use self-defense rules if the home is occupied, not defense of property rules (aka deadly force may be used in the right circumstances)

ordinarily, D must make a REQUEST for return of property before using force to get the property back UNLESS OBVIOUSLY FUTILE

force may not be used against someone with a claim of right (potential owner/lessee) to the property

too much force is used = no defense

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60
Q

DEFENSES
defense of self/others/property
» duty to retreat

[ intentional torts ]

A

D is NEVER required to retreat before using NON-DEADLY force

Majority = D is NOT required to retreat before using DEADLY force
Minority = no duty to retreat before using DEADLY force
(1) from D’s own home or
(2) if retreat cannot be done safely

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61
Q

DEFENSES
defense of self/others/property
» injury to innocent party from use of self-defense

[ intentional torts ]

A

If D acts in self-defense and an innocent party is injured, D is excused for causing the injury UNLESS he acted NEGLIGENTLY

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62
Q

DEFENSES
necessity
» public necessity

[ intentional torts ]

A

= COMPLETE defense to PROPERTY torts
(usually trespass to land or conversion)

NEED ELEMENTS

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63
Q

DEFENSES
necessity
» private necessity

[ intentional torts ]

A

= INCOMPLETE defense to PROPERTY torts

NEED ELEMENTS

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64
Q

DEFENSES
necessity
» necessity + defense of property

[ intentional torts ]

A

Necessity SUPERSEDES defense of property

= a person may NOT use force to defend property against someone she knows entered the property out of necessity

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65
Q

PRIVATE FIGURE + PRIVATE ISSUE
defamation of private figure with issue not of public concern
» 3 elements

[ defamation ]

A

Where P is a PRIVATE FIGURE and the ISSUE is NOT OF PUBLIC CONCERN (aka purely private dispute)

  1. D made a DEFAMATORY STATEMENT about P
  2. Published (either intentionally or negligently) by D to 3P who understands the statement and the language
  3. Damages (which are presumed for libel and slander per se)
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66
Q

PRIVATE FIGURE + PRIVATE ISSUE
defamation of private figure with issue not of public concern
» defamatory statement requirement

[ defamation ]

A
  1. = statement that exposes P to public hatred, contempt, scorn, shame, or ridicule
  2. statement must concern facts or opinions implying underlying facts (pure opinions or name-calling will not suffice)
  3. P must show that a reasonable person
    - would think that the statement concerns P AND
    - would understand the defamatory nature of the statement (unless defamatory nature of the statement is clear on its face aka defamation per se)
  4. P is NOT required to prove that anyone who heard the statement believed it to be true
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67
Q

PRIVATE FIGURE + PRIVATE ISSUE
defamation of private figure with issue not of public concern
» intent required

[ defamation ]

A

@ common law, defamation was a strict liability tort

most states today require that the defendant was at least negligent

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68
Q

PRIVATE FIGURE + PRIVATE ISSUE
defamation of private figure with issue not of public concern
» presumption of damages

[ defamation ]

A

damages are presumed for harm to P’s reputation for:

  1. ALL LIBEL = written defamation, radio, TV, tape-recordings, most communications by computer
  2. SLANDER PER SE = oral defamation concerning either
    a. P’s trade or profession or
    b. accusing P of a serious crime or
    c. alleging that P currently has loathsome disease (ex = VD, Leprosy)
    d. alleging that P is unchaste

NOTE = for all other slanders, P must prove actual money losses
If P is able to prove actual money losses, P may also obtain damages for reputational harm

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69
Q

PRIVATE FIGURE + PRIVATE ISSUE
defamation of private figure with issue not of public concern
» 4 affirmative defenses

[ defamation ]

A
  1. Consent (ex = P consented to release of investigative report)
  2. Truth (D must prove truth)
  3. Absolute privileges (if an absolute privilege exists, D may not lose it, regardless of malice)
  4. Qualified privileges (D will lose a qualified privilege if he makes false statements intentionally, recklessly, maliciously, or over-publishes statement)
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70
Q

PRIVATE FIGURE + PRIVATE ISSUE
defamation of private figure with issue not of public concern
» 4 absolute privileges

[ defamation ]

A
  1. statements by fed or state legislators on floor of legislature or in committee sessions
  2. statements by executive officials in the course of their duties
  3. statements made in judicial proceedings by judges, jurors, attorneys, parties, and witnesses if in any way related to the proceeding
  4. statements between spouses
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71
Q

PRIVATE FIGURE + PRIVATE ISSUE
defamation of private figure with issue not of public concern
» 2 qualified privileges

[ defamation ]

A

Aka conditional privileges

  1. answering requests for info from prospective employers (references) or credit agencies
  2. reporting a crime to the police
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72
Q

PRIVATE FIGURE + PRIVATE ISSUE
defamation of private figure with issue not of public concern
» can D lose privileges?

[ defamation ]

A 
D will lose a QUALIFIED privilege if he makes false statements 
- Intentionally
- Recklessly
- Maliciously
OR over-publishes statement

BUT: if an ABSOLUTE privilege exists, D may not lose it, regardless of malice

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73
Q

PUBLIC FIGURE/OFFICIAL
defamation of public figure/official
» 4 elements

[ defamation ]

A

Where P is a PUBLIC OFFICIAL, CANDIDATE FOR PUBLIC OFFICE, OR PUBLIC FIGURE (and hence the issue is of PUBLIC CONCERN), public official/figure must prove

  1. defamatory statement about P
  2. published by D (to a 3P)
  3. the statement is false (probably by clear & convincing evidence)
  4. D acted with actual malice
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74
Q

PUBLIC FIGURE/OFFICIAL
defamation of public figure/official
» actual malice element

[ defamation ]

A

= D made the statement knowing it was false or with reckless disregard for the truth

aka a subjective belief that it was false (by clear and convincing evidence)

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75
Q

PUBLIC FIGURE/OFFICIAL
defamation of public figure/official
» definition of public official

[ defamation ]

A

= elected or appointed government official with substantial responsibility over government affairs

(ex = governor, state senator, mayor, police officer)

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76
Q

PUBLIC FIGURE/OFFICIAL
defamation of public figure/official
» definition of public figure

[ defamation ]

A

= a public figure is someone who has general notoriety or someone who has asserted herself into a controversy

the spouse of a public figure is not automatically treated as a public figure

77
Q

PRIVATE FIGURE + PUBLIC ISSUE
defamation of private figure with issue of public concern
» when is matter of public concern?

[ defamation ]

A

if the public has a legitimate interest in the subject (e.g., a private lawyer accused of overbilling the government for legal work)

78
Q

PRIVATE FIGURE + PUBLIC ISSUE
defamation of private figure with issue of public concern
» 6 elements

[ defamation ]

A

Where P is private figure and issue is of public concern, P must prove

  1. a defamatory statement about P
  2. published by D (to 3P)
  3. the statement is false (by a preponderance)
  4. D made the statement (at least) negligently (by a preponderance)
  5. P must also prove actual damages (but actual damages are not limited to out-of-pocket losses)
  6. to recover presumed or punitive damages, P must prove that D made the statement knowing it was false or with reckless disregard for the truth
79
Q

PRIVATE FIGURE + PUBLIC ISSUE
defamation of private figure with issue of public concern
» reckless disregard for the truth

[ defamation ]

A

= a subjective belief that it was false

80
Q

OTHER ISSUES
first amendment

[ defamation ]

A

If the First Amendment bars P’s recovery for defamation, P may not use other torts, such as IIED or Right to Privacy, to recover

81
Q

OTHER ISSUES
defamation suits at P’s death

[ defamation ]

A

Defamation and Right to Privacy suits are “personal” and thus end at the plaintiff’s death (in most states) and cannot be brought on behalf of someone who is already dead (with the possible exception of Misappropriation of Plaintiff’s Name or Likeness)

82
Q

THE BASICS
4 privacy torts

[ privacy torts ]

A
  1. Misappropriation of P’s name/likeness
  2. Intrusion into P’s seclusion
  3. Publication of P in (highly offensive) false light
  4. Public disclosure of private facts
83
Q

MISAPPROPRIATION OF P’S NAME/LIKENESS
3 elements

[ privacy torts ]

A
  1. D uses P’s name or likeness
  2. For the purpose of taking advantage of P’s reputation, prestige or other value
  3. For some commercial gain associated with misappropriation (ex = using name/likeness to sponsor or endorse a product)

NOTE = this tort doesn’t cover “newsworthy” uses of another’s name/likeness such as newspapers, magazines, or books
(aka that a newspaper contains someone’s name and also is a for-profit company does not mean any use of someone’s name within a news story is a misappropriation of that person’s name or likeness)

84
Q

INTRUSION INTO P’S SECLUSION
2 elements

[ privacy torts ]

A
  1. Intrusion into a private place, conversation, or matter and
  2. In a manner that is highly offensive to a reasonable person

ex of seclusion = her home, office, car

85
Q

INTRUSION INTO P’S SECLUSION
examples where there is no liability

[ privacy torts ]

A
  1. D knocks on P’s door, calls him on a few occasions to demand payment of debt (only becomes intrusion if it is with such PERSISTENCE AND FREQUENCY to become a SUBSTANTIAL BURDEN to his existence)
  2. most things in public are not going to be sufficient for intrusion (ex = D observes P in public or takes his photo while he is walking on a public highway)

BUT if D discusses in public things about P hidden from public gaze = would give rise to an intrusion action

86
Q

PUBLICATION OF P IN (HIGHLY OFFENSIVE) FALSE LIGHT
3 elements

[ privacy torts ]

A
  1. D gives publicity to a matter concerning P (can be oral/written/other communication means, no set number of people required for publicity)
  2. Portraying P in a false light
  3. And it is highly offensive to a reasonable person
87
Q

PUBLICATION OF P IN (HIGHLY OFFENSIVE) FALSE LIGHT
required showing for public official/figure

[ privacy torts ]

A

If P is public official/figure, P must prove ACTUAL MALICE test to prevail

88
Q

PUBLIC DISCLOSURE OF PRIVATE FACTS
2 key takeaways

[ privacy torts ]

A
  1. Public disclosure = widespread

2. must be private facts (cannot use this when it’s a matter of public concern)

89
Q

DEFENSES
public record privilege

[ privacy torts ]

A
  1. There’s an absolute privilege for publishing matters in the public record
  2. (ex = name of rape victim)
90
Q

INTENTIONAL MISREPRESENTATION
5 elements

[ misrepresentation ]

A

Aka deceit

  1. D made a statement of material fact (not opinion)
  2. knowing it was false or with reckless disregard for the truth
  3. intending for P to rely on the statement
  4. P justifiably relied on the statement, and
  5. such reliance caused P to suffer actual pecuniary loss
91
Q

INTENTIONAL MISREPRESENTATION
duty to investigate

[ misrepresentation ]

A

P has NO duty to investigate the truth of D’s statement, unless it is obviously false

92
Q

INTENTIONAL MISREPRESENTATION
recovery for emotional harm

[ misrepresentation ]

A

TRICK

P may not recover for emotional harm (must be actual pecuniary loss)

93
Q

INTENTIONAL MISREPRESENTATION
required burden of proof

[ misrepresentation ]

A

Most jurisdictions require P to prove intentional misrepresentation by CLEAR AND CONVINCING EVIDENCE

94
Q

NEGLIGENT MISREPRESENTATION
definition

[ misrepresentation ]

A

D who is in the business of supplying info for the guidance of others in biz transactions may be liable for negligent misrepresentations

Ex = accountant or surveyor

95
Q

NEGLIGENT MISREPRESENTATION
strict privity

[ misrepresentation ]

A

D owes a duty ONLY to those persons to whom the representation was made and to those persons D actually KNEW would rely on it in their biz transactions

96
Q

NEGLIGENT MISREPRESENTATION
damages

[ misrepresentation ]

A

P is generally limited to reliance damages for negligent misrepresentation

P must suffer actual PECUNIARY loss (may not recover for emotional harm

97
Q

NEGLIGENT MISREPRESENTATION
defenses

[ misrepresentation ]

A

Contributory negligence is a defense

ex = an unreasonable failure to investigate

98
Q

PUBLIC NUISANCE
definition

[ nuisance ]

A
  1. an act by D
  2. on her land
  3. that unreasonably interferes with the health/safety of the community at large

ex = toxic waste or operating an illegal business (gambling, prostitution, drugs)

99
Q

PUBLIC NUISANCE
standing

[ nuisance ]

A

an individual may bring suit for damages and/or to enjoin a public nuisance ONLY IF she has suffered some UNIQUE INJURY (different than that of the general public)

otherwise, such suits must be brought by AG or DA

100
Q

PRIVATE NUISANCE
definition

[ nuisance ]

A
  1. Occurs if D is using her land
  2. in such a way that causes SUBSTANTIAL AND UNREASONABLE INTERFERENCE
  3. with P’s land

(ex = smoke, odors, sounds, shockwaves, unsightly objects or conditions)

101
Q

PRIVATE NUISANCE
substantial interference

[ nuisance ]

A

interference that is offensive, inconvenient, or annoying to an average person in the community

102
Q

PRIVATE NUISANCE
remedies

[ nuisance ]

A

the court will balance the equities of D’s use against the interference to P’s use, and may award damages, a partial or complete injunction, a forced purchase of P’s property, or nothing at all

Exception = if D has WILLFULLY (aka spitefully) created the nuisance, court will NOT balance the equities, but rather will rule against D

103
Q

PRIVATE NUISANCE
2 defenses

[ nuisance ]

A
  1. P is super-sensitive (ex = extreme concern with noise) (aka the interference would not bother an average person in the community)
  2. P came to the nuisance (this is NOT a BAR to P’s recovery, but is a relevant factor for the court)
104
Q

PRIMA FACIE CASE
4 elements

[ negligence ]

A
  1. Duty (q of law)
  2. Breach (q of fact)
  3. Causation (q of fact)
  4. Damages (q of fact)
105
Q

PRIMA FACIE CASE
test tip

[ negligence ]

A

50% of MBE torts Qs are based on negligence

106
Q

DUTY
2 components

[ negligence ]

A
  1. Foreseeable P

2. Standard of care

107
Q

DUTY
foreseeability
» analysis

[ negligence ]

A

Rule = D owes a duty of care only to foreseeable Ps in negligence actions BUT virtually all Ps are foreseeable, so this issue is rarely tested

if tested, will use PALSGRAF facts (or v similar)
= negligent act committed on P1 (who was clearly foreseeable) that injured P2 (whose foreseeability was debatable)
2 PALSGRAF tests
1. CARDOZO Test (majority view) = D is liable to P2 only if P2 is in the ZONE OF DANGER of D’s negligent conduct
2. ANDREWS Test = if D owes duty of care to P1, also owes duty of care to P2

108
Q

DUTY
foreseeability
» firefighter’s rule

[ negligence ]

A

Generally, firefighter, police officer, or other emergency professional may NOT hold a person liable for injuries suffered in responding to situation created/caused by ORDINARY negligence

109
Q

DUTY
foreseeability
» primary implied assumption of the risk

[ negligence ]

A

Majority view = D owes not duty to P to avoid creating unreasonable risks of harm for injuries that are inherent in sports and recreational activities

110
Q

DUTY
standard of care
» general principle

[ negligence ]

A

If p is foreseeable, then D owes P a duty of care

Type of duty depends on D’S STATUS (and sometimes P’s status)

111
Q

DUTY
standard of care
» 6 key statuses of D

[ negligence ]

A
  1. Reasonable person (default = Ds who don’t fit other categories)
  2. Children under age 5
  3. Children age 5 and up
  4. Professionals
  5. Common carriers and innkeepers
  6. Auto drivers
112
Q

DUTY
standard of care
» reasonable person’s SOC

[ negligence ]

A

= ordinary, prudent person of average experience and intelligence under same/similar circumstances (objective std)
in EMERGENCY, SOC = REASONABLE PERSON IN EMERGENCY situation
—
2 EXCEPTIONS
1. DISABILED D = D with physical disabilities must act like a reasonable person with the same or similar disabilities BUT D who is mentally disabled, intoxicated, or inexperienced must act like an ordinary reasonable person
2. EXPERT D = if D has a particular expertise, D may be held to a higher standard

113
Q

DUTY
standard of care
» younger than 5 y/o’s SOC

[ negligence ]

A

= incapable of committing negligence

BUT remember = still liable for intentional torts

114
Q

DUTY
standard of care
» 5+ y/o’s SOC

[ negligence ]

A

EXCEPTION = ADULT ACTIVITY
child will be held to REASONABLE PERSON std if child is performing an adult activity (ex = using an adult motorized vehicle)

115
Q

DUTY
standard of care
» professional’s SOC

[ negligence ]

A

= skill and knowledge of member in good standing in profession
ordinarily, EXPERT WITNESS must testify as to appropriate SOC and whether that std was breached, UNLESS breach is a matter of common sense
—
EXCEPTION = if D is
1. specialist (like board-certified) or
2. expert (or holding herself out as such)
= D will be held to higher std (NATIONAL in scope)

116
Q

DUTY
standard of care
» common carrier’s SOC

[ negligence ]

A

= liable for SLIGHT negligence but only to passengers

117
Q

DUTY
standard of care
» innkeeper’s SOC

[ negligence ]

A

= liable for SLIGHT negligence but only to guests

118
Q

DUTY
standard of care
» auto driver’s SOC

[ negligence ]

A

EXCEPTION = GUEST STATUTES
A few states have statutes that hold drivers liable only for WILLFUL + WANTON CONDUCT if P is NON-PAYING PASSENGER

119
Q

DUTY
premise liability
» 3 general principles

[ negligence ]

A
  1. duty of care owed by
    - owners/occupiers of land
    - and people in privity with owners/occupiers (like family members and employees)
    = one of the most complicated issues in tort law
  2. duty varies depending on
    - P’s status and
    - location where P was injured
  3. D owes duty only if she is owner/occupier @ TIME P is injured
120
Q

DUTY
premise liability
» 6 duties

[ negligence ]

A
  1. Duty owed to those not on D’s land
  2. Duty owed to undiscovered trespassers
  3. Duty owed to discovered trespassers
  4. Duty owed to licensees
  5. Duty owed to biz/public invitees
  6. Duty owed to infant trespassers
121
Q

DUTY
premise liability
» duty owed to those not on D’s land

[ negligence ]

A

D must act like a REASONABLE PERSON to protect those not on D’s land from

  1. ACTIVITIES on the LAND
  2. OVERHANGING TREES in URBAN areas
  3. DANGEROUS ARTIFICIAL conditions near BORDER of the land
122
Q

DUTY
premise liability
» duty owed to undiscovered trespassers

[ negligence ]

A

D owes NO DUTY to undiscovered for activities or static conditions on land

BUT D is liable to undiscovered trespassers for INTENTIONAL TORTS and RECKLESS (aka WILLFUL + WANTON) MISCONDUCT

123
Q

DUTY
premise liability
» duty owed to discovered trespassers

[ negligence ]

A

D has NO DUTY TO SEARCH for trespassers
D owes a duty to those D knows or should know are ACTUALLY present on the land for
1. ACTIVITY on land = D owes a duty to act like a REASONABLE PERSON
2. STATIC CONDITION on land = D owes a duty to warn of CONCEALED + KNOWN + ARTIFICIAL (man-made) conditions that pose RISK OF DEATH/SERIOUS BODILY INJURY
- BUT NO duty to WARN of OBVIOUS dangers
- Examples of static conditions = uncovered well, concealed hole, high-voltage electric fence

124
Q

DUTY
premise liability
» duty owed to licensees

[ negligence ]

A

D owes duty to those on the land for their OWN PURPOSE, including social guests, visiting relatives, police, firefighters):
1. ACTIVITY on land = D owes duty to act like REASONABLE PERSON
2. STATIC CONDITION on land = D has a DUTY TO WARN of conditions that are CONCEALED + KNOWN + DANGEROUS (natural and artificial)
—
BUT
- NO duty to WARN of OBVIOUS dangers
- NO duty to INSPECT property for dangerous conditions

125
Q

DUTY
premise liability
» duty owed to biz/public invitees

[ negligence ]

A

D owes duty to those on the land for the purpose of the landowner, including customers, visitors to public property, and non-emergency public employees):
1. ACTIVITY on land = D owes duty to act like REASONABLE PERSON
2. STATIC CONDITION on land = D has DUTY TO WARN of (or preferably make safe) CONCEALED + DANGEROUS conditions about which D KNOWS OR SHOULD KNOW
= D has a duty to make REASONABLE INSPECTIONS
BUT NO duty to WARN of OBVIOUS dangers
—
- Trend = many states apply this std to both licensees and business invitees
- If P goes into area not intended for customers (like room labeled “for employees only”), P will revert to licensee or trespasser

126
Q

DUTY
premise liability
» duty owed to infant trespassers

[ negligence ]

A

children who are around 12 or younger may recover for injuries if she can show

  1. owner knew or had reason to know children were likely to trespass and
  2. owner knew artificial condition posed an unreasonable risk to children and
  3. because of her age, infant did not realize danger and
  4. cost of remedying danger was slight compared to risk and
  5. owner failed to exercise reasonable care
    - owner must take reasonable measures to protect children
    - BUT no requirement to make premises child-proof
127
Q

DUTY
negligence per se
» analysis/definition

[ negligence ]

A

If criminal statute/ordinance/traffic regulation is quoted in torts Q, ask = DOES STATUTE ESTABLISH SOC?
Requires
1. Statute designed to protect against this type of harm AND
2. P is within class protected by statute
- If so = D’s failure to comply with statute constitutes NEGLIGENCE PER SE
- Aka conclusive proof of duty and breach
- (but not of causation or damages)
—
BUT compliance with law = evidence that D met SOC but not conclusive
NOTE = if Negligence Per Se is unsuccessful or excused, P may rely on ordinary negligence claim

128
Q

DUTY
negligence per se
» contributory negligence of protected P

[ negligence ]

A 
if P is within class protected by statute, P’s contributory negligence will not bar recovery
(ex = children in a school zone)
129
Q

DUTY
negligence per se
» 3 times failure to comply with statute is excused

[ negligence ]

A

circumstances where D’s failure to comply with statute will be EXCUSED =

  1. where compliance would be more dangerous
  2. where compliance is beyond D’s control (ex = D has heart attack while driving)
  3. where violation is reasonable in light of D’s young age or physical disability
130
Q

DUTY
negligent infliction of emotional distress

[ negligence ]

A

For P to recover for NIED, P must show
1. emotional distress that resulted in PHYSICAL INJURY
- (aka physical consequences, like nervous breakdown, mistercarriage, paralysis, heart attack, etc.)
- BUT physical injury is not required for
a. NEGLIGENT HANDLING of relative’s CORPSE or
b. ERRONEOUS REPORTING of close relative’s DEATH
&
2. Either
a. P was in TARGET ZONE of D’s negligence (no requirement that D make physical contact with plaintiff, but there must be at least a near miss) OR
b. NEGLIGENT DIAGNOSIS from medical professional

NOTE = minority of states apply regular negligence standards to NIED (foreseeability)

131
Q

DUTY
parasitic emotional distress damages

[ negligence ]

A

If P suffered actual physical injuries from contact w/ D, P can always seek damages for emotional distress as part of that claim

132
Q

BREACH
basic principle

[ negligence ]

A
  • Whether D breached applicable SOC is question of fact
  • If D failed to meet applicable SOC = breach
  • if D met applicable SOC = no breach
133
Q

BREACH
industry custom as SOC

[ negligence ]

A

compliance with or failure to meet industry custom is ADMISSIBLE as evidence but NOT CONCLUSIVE

EXCEPTION = in med mal cases, D’s compliance w/ established medical customs is often dispositive (as no breach)

134
Q

BREACH
res ipsa loquitur
» basic principale

[ negligence ]

A

In some cases, the very fact that a particular harm has occurred may satisfy (at least to some degree) the breach requirement

If Q provides that P was injured but P has no direct evidence to prove that D was negligent, consider using res ipsa loquitur

135
Q

BREACH
res ipsa loquitur
» elements

[ negligence ]

A

RIL applies where

  1. accident that injured P is of type that does not generally occur w/o negligence and
  2. D had exclusive control over instrumentality/condition that caused injury and
  3. no evidence that P was contributorily negligent

NOTE = #3 generally not required in states that use comparative fault

136
Q

BREACH
res ipsa loquitur
» effect

[ negligence ]

A

meeting 3 RIL requirements results in PERMISSIVE INFERENCE of negligence =

  1. allows P to survive motion for SJ/JMOL
  2. permits (doesn’t require) jury to rule in favor of P
137
Q

CAUSATION
requirement

[ negligence ]

A

2 types of causation= P needs BOTH to prevail
1. P must show CAUSATION-IN-FACT
= actual or factual causation
2. only if that’s shown, P must then prove PROXIMATE CAUSATION
= legal scope of liability

138
Q

CAUSATION
causation-in-fact
» but-for test

[ negligence ]

A

Test for 1 tortfeasor = but for D’s negligent act, P wouldn’t have been injured

Test for 2+ tortfeasors = but for Ds’ combined negligent acts, P wouldn’t have been injured
- (even when one tortfeasor’s alone would not have)

139
Q

CAUSATION
causation-in-fact
» substantial factor test

[ negligence ]

A

aka independent concurrent causation

If 2+ tortfeasors commit negligent acts AND either act alone would have been enough to cause same INDIVISIBLE injury to P = both JOINTLY AND SEVERALLY LIABLE

140
Q

CAUSATION
causation-in-fact
» alternative liability test

[ negligence ]

A

(from Summers v. Tice)
If 2+ Ds commit negligent acts AND only one act caused P’s injury, but P doesn’t know which = court will shift burden of proving causation to Ds

if Ds unable to prove which one caused tort = both held JOINTLY AND SEVERALLY LIABLE

141
Q

CAUSATION
proximate cause
» doctrine

[ negligence ]

A

= D is liable only if TYPE of harm that occurs was FORESEEABLE risk of D’s negligent act
NOTE = in typical tort case, type of harm is usually foreseeable (thus D will be proximate cause)
—
TE$T TIP = for UBE purposes, proximate cause is lacking ONLY
1. where chain of events leading from D’s negligent act and P’s injury is bizarre or unbelievable or
2. where unforeseeable affirmative act of 3P (including God) intervenes btwn D’s negligent act and P’s injury
- aka only UNFORESEEABLE intervening acts (known as superseding acts) will break chain from D’s negligent act to P’s injury

142
Q

CAUSATION
proximate cause
» foreseeable intervening acts

[ negligence ]

A

foreseeability of acts = question of fact

  • intervening acts generally considered foreseeable
    1. ordinary negligence of medical personnel that aggravates P’s injuries
    2. infections or diseases resulting from injuries caused by D
    3. injuries or property damage caused by negligence of rescuers (suffered by rescuer/P/3P)
    4. injuries or property damage resulting from attempt to escape by P (suffered by P/3P)
    5. subsequent accidents resulting from original injuries
143
Q

CAUSATION
proximate cause
» superseding acts

[ negligence ]

A

intervening acts generally considered unforeseeable
(unless facts indicate that were foreseeable by D in this particular case, like flood/tornado warnings or high crime area)
1. criminal acts of 3P (unless D’s negligence increased risk of such criminal acts)
2. intentional torts or grossly negligent torts of 3P
3. acts of the OG 3P, my dude, my lord+savior, please give it up 4 God (ex = lightning strikes, tornados, floods)

144
Q

DAMAGES
basic principales
(requirement/goal)

[ negligence ]

A
  1. Negligence requires proof of ACTUAL damages
  2. Compensatory damages = must be proved with REASONABLE certainty
  3. GOAL of tort damages = to make P whole (aka to return P to position she was in prior to the tort)
145
Q

DAMAGES
eggshell skull P

[ negligence ]

A

to be held liable, D must FORESEE TYPE of humpty dumpty’s injury but need not have foreseen extent of injury

146
Q

DAMAGES
emotional distress

[ negligence ]

A

P may not recover damages for emotional distress (or other emotional injuries) suffered as a result of property damage

147
Q

DAMAGES
mitigation

[ negligence ]

A

P must take reasonable steps to mitigate damages (P must seek medical treatment for injuries)

D is not liable for avoidable damages

148
Q

DAMAGES
collateral source rule

[ negligence ]

A

Majority view
benefits P receives from her employer, health insurance, disability insurance, or gov are not deducted from P’s award of damages

149
Q

DAMAGES
punitive damages

[ negligence ]

A

Punitive damages are not awarded in negligence cases
- UNLESS D acted wantonly, willfully, maliciously, or recklessly (ex = drunk driving)

In many states, conduct justifying punitive damages must be proved by CLEAR + CONVINCING evidence
- ALSO many states have statutory caps on punitive damages and require they be proved in bifurcated trial

150
Q

DEFENSES
3 defenses

[ negligence ]

A
  1. Contributory negligence
  2. Comparative fault
  3. Implied assumption of the risk
151
Q

DEFENSES
contributory negligence
» defense

[ negligence ]

A

In jurisdictions using common law contributory negligence, if P’s negligence contributed in any way (even 1%) to her injuries, P is barred from recovering
- 5 jurisdictions using common law contributory negligence = AL, DC, MD, NC, VA

(because of the harshness of contributory negligence, there are several exceptions to defense)

152
Q

DEFENSES
contributory negligence
» 2 exceptions

[ negligence ]

A
  1. Reckless torts
    = contributory negligence is not a defense to reckless tort
  2. Last clear chance
    = P’s contributory negligence will not bar recovery if D had last clear chance of preventing accident
    - NOT used in comparative fault states BUT jury may consider such facts when apportioning fault
153
Q

DEFENSES
contributory negligence
» imputed contributory negligence

[ negligence ]

A

Imputation does NOT apply
1. from spouse-to-spouse (unless based on wrongful death/loss of services/consortium)
2. from parent-to-child (unless based on wrongful death/loss of services/consortium)
3. btwn driver and passenger

154
Q

DEFENSES
comparative fault
» effect/use

[ negligence ]

A

In comparative fault states, P’s contributory negligence will generally not bar recovery but simply reduce amount P may recover

155
Q

DEFENSES
comparative fault
» 2 types

[ negligence ]

A

(also defense to reckless torts)

  1. Modified (partial) comparative fault
    - (MAJORITY VIEW)
    - If P’s fault is greater than that of D (or all of D combined) = P is barred from recovering
  2. Pure comparative fault
    - (DEFAULT rule for UBE)
    - P may recover regardless of percentage of his own fault
156
Q

DEFENSES
implied assumption of the risk

[ negligence ]

A
  1. aka secondary implied assumption of risk
  2. (similar to defense of consent in intentional torts)
  3. If P is subjectively aware of risk and voluntarily proceeds in face of risk = P may not recover
  4. Does NOT apply if
    - P had no reasonable alternatives (ex = P had no choice but to proceed) or
    - P was responding to an emergency (ex = rescuing a child)
157
Q

THE BASICS
definition + 3 categories

[ strict liability ]

A 
= liability w/o fault 
Imposed 3 types of cases
1. Wild animals
2. Abnormally dangerous (ultrahazardous) activities 
3. Products liability
158
Q

THE BASICS
elements

[ strict liability ]

A

Same 4 elements as negligence

Except D has an absolute duty to make item/activity safe

159
Q

OWNER LIABILITY FOR ANIMALS
wild animals

[ strict liability ]

A

Ex = tigers, venomous snakes, bears)
D strictly liable for injuries caused by WILD or DANGEROUS animal
—
Limitations
- NORMALLY DANGEROUS PROPENSITY (alligator bite or tiger scratch NOT chlorine damage to clothes caused by splashing of pet shark)
- Licensees and invitees (intentional trespassers must prove negligence
- does NOT apply to ZOOS

160
Q

OWNER LIABILITY FOR ANIMALS
domestic animals

[ strict liability ]

A

(ex = dogs, cats, livestock)
Strict Liability = POSSESSOR of domestic animal with KNOWN DANGEROUS PROPENSITY is strictly liable for harm done as result of that dangerous propensity
- includes animals TRAINED TO BE VICIOUS (like guard dogs)
—
Negligence = possessor may be liable for NEGLIGENCE if her maintenance of animal is UNREASONABLE

161
Q

OWNER LIABILITY FOR ANIMALS
livestock

[ strict liability ]

A

(ex = cattle, sheep, horses NOT cats and dogs)

LANDOWNERS are strictly liable for damage done by trespass of their domestic animals

162
Q

OWNER LIABILITY FOR ANIMALS
defenses

[ strict liability ]

A
  1. Implied assumption of risk = valid defense
  2. ordinary contributory negligence = NOT a defense
  3. also? many states apply comparative fault principles to strict liability cases
163
Q

ULTRAHAZARDOUS ACTIVITIES
examples

[ strict liability ]

A
  1. manufacturing, using, or storing EXPLOSIVES
  2. crop dusting
  3. FUMIGATING
  4. operating NUCLEAR REACTORS
  5. manufacturing, using or storing TOXIC CHEMICALS or HAZARDOUS (and probably flammable) materials
164
Q

ULTRAHAZARDOUS ACTIVITIES
culpability

[ strict liability ]

A

D’s conduct is irrelevant
- Aka if D is involved in an abnormally dangerous activity and p is injured as a natural consequence of that activity = D is strictly liable

BUT injury must be caused by the normally dangerous propensity of the activity (ex = explosives manufacturer is not strictly liable for normal truck accidents that do not involve explosions)

165
Q

ULTRAHAZARDOUS ACTIVITIES
defenses

[ strict liability ]

A
  1. Implied assumption of the risk = valid defense
  2. Ordinary contributory negligence = not a defense
  3. also? many state apply comparative fault principles to strict liability cases
166
Q

PRODUCTS LIABILITY
3 types of products liability

[ strict liability ]

A
  1. Negligence
  2. Strict liability
  3. Warranty liability
167
Q

PRODUCTS LIABILITY
basis for claims

[ strict liability ]

A
  1. Defective design - BUT D is not liable in some states if the best scientific evidence at the time of MANUFACTURE could not have foreseen the danger
  2. Defective manufacture
  3. Failure to warn (or inadequate warnings) - Aka informational defect
    Cause-in-fact = for failure-to-warn claims, P must show that she wouldn’t have used the product had the warning been adequate
168
Q

PRODUCTS LIABILITY
res ipsa loquitur

[ strict liability ]

A

Jury may infer that product was defective at time of sale if accident was of a kind that ordinarily occurs as a result of a defect and no other cause was identified

169
Q

PRODUCTS LIABILITY
negligent products liability

[ strict liability ]

A 
= anyone who negligently
Designs
Manufactures
Inspects 
A product may be sued for negligence
NOTE = P must prove 4 elements of negligence
170
Q

PRODUCTS LIABILITY
negligent products liability
» who may be a D?

[ strict liability ]

A

MANUFACTURERS
may generally be sued if finished product or any component therein is defective due to manufacturer’s negligence

OTHERS
generally wholesalers and retailers may not be sued for negligent products liability b/c they rarely commit negligent acts in design, manufacture, or inspection of product, or in the provision of adequate warnings, not liable for negligence

TEST TIP
unless a Q’s facts clearly provide that wholesaler or retailer committed a negligent act
(ex = negligently modifying a product, failing to detect an obvious defect, or selling a product with actual knowledge of the defect)

171
Q

PRODUCTS LIABILITY
negligent products liability
» effect of negligent inspection by retailer (on manufacturer liability)

[ strict liability ]

A

Does not absolve a manufacturer of liability

172
Q

PRODUCTS LIABILITY
negligent products liability
» who may be a P?

[ strict liability ]

A

No privity requirement for negligence = any foreseeable P may sue

Includes purchasers of the product, family members, guests, even bystanders

173
Q

PRODUCTS LIABILITY
negligent products liability
» defenses

[ strict liability ]

A

Traditional negligence defenses apply to negligent products liability claims

174
Q

PRODUCTS LIABILITY
strict products liability
» claim

[ strict liability ]

A

liability imposed where DEFECTIVE condition of product renders it UNREASONABLE DANGEROUS

BUT no strict liability (but possibly negligence liability) if the product is used as a minor part of a service (ex = blood in an operation)

NOTE = where it is feasible to make a dangerous product safe, warnings of danger will NOT suffice

175
Q

PRODUCTS LIABILITY
strict products liability
» who may be a D?

[ strict liability ]

A
  1. Any “commercial” supplier, including manufacturer, wholesaler, retailer of new or reconditioned/rebuilt/re-manufactured goods or components and commercial lessors
  2. BUT NOT non-commercial suppliers (ex = consumer selling in a garage sale or an auctioneer)
  3. To be held liable, product must have been in an unreasonably dangerous condition when it left the control of D (in other words, dangerous condition did not occur as result of a subsequent alteration)
  4. A product will be presumed to have been defective when it left each D’s control if it moved in the normal chain of commerce
  5. If a retailer or wholesaler is held liable, that person will generally have a claim for indemnity against the manufacturer
176
Q

PRODUCTS LIABILITY
strict products liability
» who may be a P?

[ strict liability ]

A

no real privity requirement for strict products liability = any foreseeable P may sue
includes purchasers of product, family members, guests, and even bystanders

177
Q

PRODUCTS LIABILITY
strict products liability
» defenses

[ strict liability ]

A
  1. Misuse = not a defense UNLESS misuse was unforeseeable/unreasonable (in restatement third of torts, unreasonable misuse is a still a complete bar to recovery)
  2. Implied assumption of the risk = valid defense BUT ordinary contributory negligence is not
  3. Comparative fault (recent trend) = many jurisdictions use where jury apportions responsibility for D’s defective product, P’s assumption of the risk, and P’s reasonable misuse
178
Q

PRODUCTS LIABILITY
warranty liability

[ strict liability ]

A
  1. governed by UCC
  2. D may also be held strictly liable for breach of express/implied warranty
  3. require HORIZONTAL PRIVITY between P and D (no bystander liability) and PRE-SUIT NOTICE of the claim
  4. if P seeks ONLY direct economic loss (loss of value to goods themselves) or consequential economic loss (like lost profits), P must sue under contract law (breach of warranty) NOT tort law
179
Q

VICARIOUS LIABILITY
types of cases

[ multiple defendant issues ]

A
  1. Respondeat superior (employer-employee)
  2. Officers and Directors of a corporation (if the tort is committed in the scope of the corporation’s business)
  3. Partners (if the tort is committed in the scope of the partnership’s business)
  4. Joint Venturers (if the tort is committed in furtherance of the joint venture)
180
Q

VICARIOUS LIABILITY
4 relationships with no vicarious liability (generally)

[ multiple defendant issues ]

A
  1. Car owner-driver
  2. Parent-child
  3. Independent contractor-principal
  4. Bailor-bailee
181
Q

VICARIOUS LIABILITY
respondeat superior

[ multiple defendant issues ]

A
  1. ER is responsible for the torts of its EEs that occur within the scope of employment relationship
  2. As a general rule, ER is not vicariously liable for intentional torts of its EEs, unless such torts were committed in furtherance of the ER’s business (ex = a bouncer, security guard, bill collector, repo man).
  3. In some jurisdictions, ER is vicariously liable for intentional torts of its EEs, unless such torts are “wholly unforeseeable and personal” or “so unusual or startling that it is unfair to hold ER liable”
  4. An employer may be held DIRECTLY (not vicariously) liable for the intentional tort of an employee if the employer negligently hired, retained, or supervised the employee
182
Q

VICARIOUS LIABILITY
respondeat superior
» frolic + detour

[ multiple defendant issues ]

A

ER is not liable for EE’s tort if tort occurs while EE is engaged in a FROLIC (= a major deviation from EE’s duties)

BUT ER is liable if tort occurred during a DETOUR (= a minor deviation from EE’s duties)

183
Q

VICARIOUS LIABILITY
car owner-driver

[ multiple defendant issues ]

A

Generally no vicarious liability
BUT a car owner may be held liable for negligent entrustment (e.g., loaning car to intoxicated driver)

Statutory Exceptions =

  1. Family Car Doctrine (owner vicariously liable for household members using the car) or
  2. Permissive Use Doctrine (owner vicariously liable for anyone using the car with permission)
184
Q

VICARIOUS LIABILITY
parent-child

[ multiple defendant issues ]

A

Generally no vicarious liability
BUT a parent may be held liable for negligent supervision of a child or for giving a dangerous object (a gun) to a child

Statutory Exception = in some states, parents are liable for the intentional torts of their children up to certain dollar amounts

185
Q

VICARIOUS LIABILITY
independent contractor-principal

[ multiple defendant issues ]

A

Generally no vicarious liability
Exceptions = a principal is vicariously liable if the independent contractor is engaged
1. in an ultrahazardous activity on behalf of the principal or
2. in a non-delegable duty of behalf of the principal (e.g., the duty of a landowner to business invitees to make the property safe, the duty of a landowner to avoid the creation of a nuisance, the duty of a landowner not to remove lateral support from neighbors, or the duty not to breach the peace during the repossession of a vehicle)

186
Q

VICARIOUS LIABILITY
bailor-bailee

[ multiple defendant issues ]

A

Generally no vicarious liability

BUT bailor may be held liable for negligent entrustment

187
Q

DAMAGES
joint + several liability

[ multiple defendant issues ]

A

If negligent acts of 2+ persons contributed to an indivisible injury in P (or if 2 Ds acted in concert to cause a divisible or indivisible injury) = all such persons are jointly and severally liable

Joint and several liability is the DEFAULT RULE on the UBE
(by statute or sometimes common law, many states have abolished or limited application of joint and several liability, but varies significantly from state to state = no majority view)

188
Q

DAMAGES
contribution

[ multiple defendant issues ]

A

If one of Ds pays all of P’s damages (or more than his or her share of the plaintiff’s damages), that D may seek contribution from the other Ds

Ds who commit intentional torts are not entitled to contribution

In comparative contribution jurisdictions (which include most comparative fault states), contribution is apportioned based on fault

Comparative contribution is the majority and Restatement view

189
Q

DAMAGES
indemnity

[ multiple defendant issues ]

A

= D who is only secondarily liable may recover entire amount she paid to P from a D who was primarily responsible for P’s injury

The most common indemnity situations are

  1. an employer recovering from an employee (after the employer paid a respondeat superior judgment); and
  2. a retailer or wholesaler recovering from a manufacturer (after the retailer or wholesaler paid a products liability judgment)

Bar Refresher (8 decks)

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