Torts Flashcards
Are there any defenses to strict liability for abnormally dangerous activities?
Yes, assumption of the risk (plaintiff must know of the risk and voluntarily assume it)
When a plaintiff proves that each successive negligent defendant has caused some damage, who has the burden of proving the allocation of the apportionment?
The defendants
If the jury finds the harm is indivisible, the defendants will be jointly and severally liable
If the third party does not believe the statement, is the claim for defamation defeated?
No, as long as there is a false statement to a third party, the actual belief of the third party does not matter
When an employer is liable based solely on respondeant superior, what damages are they entitled to from the employee?
Indemnification: full reimbursement for the damages paid to the plaintiff
Are contingent threats assault?
No, threats that are contingent on some other occurrence are not assault
What is the amount of damages recoverable for a conversion?
The total value of the goods at the time the goods were destroyed
Learned Hand Doctrine
Does the burden of eliminating the risk outweigh the likelihood, nature and magnitude of the harm
Can a tenant be responsible for dangerous condition even if the landlord has a duty to inspect and repair?
Yes
Can manufacturers be liable for failure to warn of a dangerous defect caused by another use of the product?
Yes if they knew or should have known the product is commonly used in that way
Assault
The plaintiff does not need to be aware of the source of the threatened contact
Plaintiff does not have to feel fear or intimidation, just apprehension (words alone may not establish apprehension)
What must a landowner do when defending their property?
They usually must make a request to desist before defending; A landowner may not use force to regain real property after being tortiously dispossessed
When another’s possession of the property began peacefully, the owner may only use peaceful means to recover the chattel
Can a person in a statute’s protected class be deemed to assume the risk?
No
Invitees or Licensees: Customers? Police/Firefighters? Social Guests?
Customers: Invitees
Police/Firefighters: Licensees
Social Guests: Licensee
Res Ipsa Loquiter
Does not establish the breach of duty, just says that the fact that a particular injury occurred tends to establish breach
No directed verdict can be given for the defendant if res ipsa loquiter is established
How does the jury determine the reasonable person standard in negligence cases?
The jury weighs the burden of taking a particular precaution against the gravity of risk and the likelihood that it will eventuate (custom is relevant but not determinative)
Are doctors employees or independent contractors?
Traditionally they were independent contractors, but modern courts place more emphasis on the right to control (whether employed person is engaged in a distinct occupation or business, skill required, who supplies the materials to perform and the place to perform, the method of payment, and how the parties characterize the transaction)
Interspousal Immunity
Has been abolished in a vast majority of jurisdictions (holdout states do not allow negligence proceedings)
Can a minor child sue their parents?
Most modern jurisdictions say yes but not as to liability in suits involving upbringing
Can an insurance company be liable for amounts beyond the policy limits?
Yes if they knowingly act with blatant disregard of the facts and against the interests of the insured, they can be liable for the entire amount of any judgment against the insured
Can a defendant be liable for nuisance if there is no practicable way to reduce the nuisance?
Yes, for private nuisance
Can a person who makes a public issue of their private life recover for invasion of privacy?
No if they are fairly widely known
Last Clear Chance
The defendant can still be liable where the plaintiff negligently placed themself in danger if the defendant saw the plaintiff and realized (or should have realized) the plaintiff’s peril in time to avert the accident by using reasonable care (the defendant’s negligence must occur subsequent to when they discovered or should have discovered the plaintiff’s peril)
Liable In Solido
When one person causes another to do an unlawful act or assists or encourages in the commission of it
NIED regarding a deceased person
A hospital can be liable to a family member of the deceased person if the hospital was negligent in the treatment of the body because of the sensitivity people have regarding the care of the bodies of deceased relatives
How is the value of the goods determined for conversion?
The full value at the time of the tort
How does a plaintiff prove lost wages?
Plaintiff must present an economist or actuarial witness who in general computes lost wages and benefits for the estimated remainder of the plaintiff’s work life, adding for inflation, and then applying a discount rate to reduce the amount to present value
Private Nuisance
A substantial, unreasonable interference with another private individual’s use or enjoyment of their property (the activity must be offensive, inconvenient, or annoying to an AVERAGE PERSON of the community)
Implied Consent
Consent may be implied by law where action is necessary to save an important interest in person or property, such as an emergency situation where the plaintiff is not in a position to consent but a reasonable person would conclude that consent would be given
At common law, is an owner of a vehicle liable for torts committed by another person driving the vehicle? Modern view?
Common law: No
Modern View: Many states have imposed liability on a car owner for the tortious conduct of an immediate family member driving the car or for tortious conduct of anyone driving the car with consent
How is a manufacturer of a food product generally found liable under strict products liability?
The presence of a harmful ingredient is generally considered a manufacturing defect if a reasonable consumer would not expect the food product to contain
that ingredient
Can a plaintiff claim market share liability if the defects in the products are not all the same?
No, the manufacturers’ defective products must be fungible in relation to their capacity to cause harm
When is an activity abnormally dangerous?
An abnormally dangerous activity is one that: (1) is not of common usage in the community; AND (2) creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors
Is there a privilege for witness statements made during judicial proceedings?
Yes, it can be used as a defense to civil liability and is typically applied in defamation or IIED
