Torts

Question 1

Whether there is an imminence requirement for IIED claims?

Answer 1

No, there is no imminence requirement for IIED like there is for the tort of assault, though the passage of time may make proving causation more difficult.

Question 2

Whether duty of care breached by hotel when someone falls out window?

Answer 2

No. Common carriers and innkeepers are held to the highest duty of care, they should exercise reasonable care with their guests. No evidence of violating elevated standard of care was present.

Question 3

Whether direct evidence is necessary for res ipsa loquitur?

Answer 3

Yes P must show D was direct cause of injury.

Question 4

Whether dentist strictly liable for broken tooth?

Answer 4

No, as the dentist is a service provider.

Question 5

What’s the standard for products strict liability?

Answer 5

As long as the seller is in the business of selling the product, he will be subject to strict liability for selling a defective product, even if not responsible for the defect in any way.

Question 6

Whether presence of tiger that causes man to fall is strictly liable?

Answer 6

Yes applies to injury caused by fearful reaction to sight of wild animal and injuries caused.

Question 7

Whether contributory negligence is a defense to strict liability?

Answer 7

No, more so for negligence.

Assumption of risk is a defense to strict liability.

Question 8

What is important for a private nuisance claim?

Answer 8

Although fumes may not affect P due to his inability to smell, the fumes affect the normal, reasonable person and P may bring a private nuisance claim even though not harmed.

Question 9

When is a domesticated animal owner strictly liable?

Answer 9

A domestic animal’s owner is strictly liable for injuries caused by that animal if he knows or has reason to know of animals dangerous propensities, and the harm results from those dangerous propensities.

Example chicken peck at mail carrier.

Question 10

When former spouse tells ex-wife child is in coma, may the new husband have a claim for IIED?

Answer 10

Yes, IIED is the E AND O, I or R, SED.

New husband suffers SED, ex was E AND O, and was R NOT I. Does not have to be intentional for a IIED may instead be reckless.

Question 11

What must a plaintiff prove in order to prevail on a theory of NIED?

Answer 11

Physical symptoms.

Question 12

Whether nominal damages awarded in negligence?

Answer 12

No nominal in negligence actions.

Question 13

Defenses to negligence?

Answer 13

Contributory negligence, comparative fault, and assumption of risk.

Question 14

When car crash and there is a guest statute?

Answer 14

Guest statute imposed only a duty to refrain from gross or wanton and willful misconduct with respect to a guest.

When driver was negligent— no liability in guest statute.

Question 15

What must P prove for strict products liability?

Answer 15

1) product was defective
2) existed at time left D control
3) defect caused P’s injuries when used in intended and foreseeable way

Question 16

Whether intoxicated individuals are held to the same standard as sober individuals?

Answer 16

Intoxicated individuals are held to the same standards as sober individuals unless their intoxication was involuntary.

Question 17

What’s a response to contributory negligence by D?

Answer 17

P can claim D had last clear chance to avoid P. In contributory negligence jurisdictions, P may mitigate if prices D had last clear chance.

Question 18

Why could the bird garden bring a claim against the noisy oil rig?

Answer 18

Yes, although public nuisance is generally at a loss, because of the particular economic loss of business and tourist they are able to file a claim for their specific loss.

Question 19

Whether damages are necessary in a trespass to chattels?

Answer 19

Yes, damages must be shown.

For example, when cousin takes gun without your knowing and returns it in same position. You won’t win unless you show damages to gun to win on trespass to chattel claim.

Question 20

Whether firefighter able to collect damages when approaching building of messed up stairs to out a fire?

Answer 20

Yes as the stairs are NOT inherent in the risk of putting out the fire.

Question 21

Whether police office patrolling street may hold street vendor liable for car crash?

Answer 21

Emergency personnel are barred from recovering damages from the party whose negligence caused by injury results from risk inherent to the job.

Must be inherent risks of the job for emergency personnel to not be barred.

Question 22

How to prevail on claim under strict products liability theory for failure to warn?

Answer 22

Failure to warn requires a P to prove manufacturer failed to provide adequate warning related to the risks of using the product.

A failure to warn defect exists if there were foreseeable risks of harm, not obvious to ordinary consumer of product that could have been reduced or avoided by providing reasonable instruction or warnings.

Failure to include instruction or warnings prevents product from being reasonably safe.

Question 23

What’s a strong negligence per se defense?

Answer 23

Proximate causation

Question 24

What is required under the risk-utility test?

Answer 24

Reasonable alternative design was available to the defendant and failure to use that design rendered product not reasonably safe.

Question 25

What is duty?

Answer 25

Duty is reasonable care. Don’t talk about it too much unless professional, child, landowner, special relationship, and duty to rescue.

Question 26

What is breach?

Answer 26

Breach is usually a question of whether D acted “with reasonable care”–this is purely a factual question for the jury or fact finder (judge), unless P is proceeding under a theory of “per se” negligence.

Question 27

Whether owner can avoid harm caused by contractor when owner has nondelegable duty?

Answer 27

Contractor will not be liable for the nondelegable duty of the homeowner when activity was ultrahazardous activity or public space. Homeowner will be solely liable.

Even if the homeowner has a nondelegable duty, meaning the homeowner is fully liable for the harm caused by the contractor, homeowner may still implead and receive full indemnification from the contractor, except for ultrahazardous activity and public space.

Question 28

When hotel takes precautions to prevent the littering by guest outside, will P claim against owner of hotel?

Answer 28

No, the hotel took reasonable care to prevent injuries by patrolling halls.

Question 29

What is required for a private nuisance action?

Answer 29

Substantial and unreasonable interference with property over a period of time.

Question 30

Whether plant can be negligent when alternative would be costly and not effective and no other plant implements alternative?

Answer 30

This speaks to the reasonable care of the plant and would not be held liable.

Question 31

Strict liability (ultrahazardous factors)

Answer 31

6 factor test: (1) risk of harm, (2) risk of great harm, (3) uncommon place, (4) inability to eliminate risk using reasonable care , (5) uncommon activity, (6) value
to the community

Question 32

What are the defenses to strict products liabliability?

Answer 32

Assumption of the risk and comparative negligence

Question 33

Whether a consumer-buyer may be SL?

Answer 33

No, more so a merchant or commercial retailer.

Question 34

Whether homeowner liable to licensee for unforeseen harm?

Answer 34

No, not liable for harm unknown to homeowner. Homeowner liable for known unforeseen harm.

Question 35

What are three strict product design defects?

Answer 35

(1) Reasonable alternative design: D could
reasonably have produced a substantially similar product using a safer alternative design

(2) Consumer expectation: a dangerous aspect that a
consumer wouldn’t expect

(3) Risk / Utility: utility d/n outweigh the risk → liable

Question 36

When a P suffers only economic damages in negligence?

Answer 36

A negligence plaintiff must prove actual injury. A plaintiff who suffers ONLY economic loss without any related personal injury or property damage CANNOT recover such loss through a negligence action.

Question 37

What is not intentional interference with a contract?

Answer 37

No requirement the loss be substantial.

Question 38

When in a comparative joint liability jurisdiction, and the D1 seeks contribution from D2?

Answer 38

May obtain only amount owed from that D2. D1 must separately collect from D3.

Question 39

Whether actual harm is required for assault?

Answer 39

No, proof of actual damages is required to succeed in an action for tortious assault.

Question 40

Whether purely economic damages are fine for sole remedy for a private nuisance action?

Answer 40

A person may seek purely economic damages in a private nuisance action.

Question 41

Whether physical invasion of property needs to be intentional?

Answer 41

No intent is not required.