Torts

Question 1

State the negligence test entirely and accurately.

Answer 1

1) Unreasonable; 2) Breached to foreseeable; 3) Breach caused injury

A defendant must (1) fail to exercise such care as a reasonable person in his position would have exercised; (2) his conduct must be a breach of the duty to prevent the foreseeable risk of harm to anyone in the plaintiff’s position; and (3) this breach must cause the plaintiff’s damages.

Question 2

What are the four requirements for Res Ipsa Loquitur to apply?

Answer 2

1) no direct evidence of how D behaved in connection with the event
2) the event causing injury would not normaly occur without negligence
3) D was in exclusive control of the key instrumentality; and
4) Plaintiff does not voluntarily contribute to the event.

Question 3

Is slander oral or written?

Answer 3

Slander is oral defamation.

Question 4

Is libel written or oral?

Answer 4

Libel is written defamation.

Question 5

When is the only situation where a P must prove special damages in a defamation claim?

Answer 5

Only when there is a slander and the statement does NOT fall in the following Slander per se:

1) accusing of a crime
2) accusing of a foul or loathsome disease
3) accusing of unfit to conduct business
4) accusing of serious misconduct

Question 6

What is the advantage of a P suing for Libel or Slander per see instead of a “regular slander”?

Answer 6

P doesn’t need to prove special damages.

Question 7

What is special damage?

Answer 7

Pecuniary damages as loar job, inheritance, gift, customer, etc.

Question 8

Is there strict liability in defamation cases?

Answer 8

No. P always need to prove that D either intended to publicize or negligently publicized the statement.

Question 9

How does truth apply to a defamation claim?

Answer 9

Truth is a complete defense to defamation.

Question 10

Invasion of privacy is a tort umbrella to which types of claims?

Answer 10

1) P’s personality appropriation for profit
2) Affairs or seclusion invasion
3) Facts placing P in false light
4) Private facts disclosure

Question 11

Three only instances of strict liabiliity?

Answer 11

1) keeping a wild animal (or domestic known dangerous)
2) Abnormally dangerous activity
3) Defective product

Question 12

Product liability 6 must knows?

Answer 12

1) Defect
2) Exclusive control
3) Not substantially changed
4) In the business of selling the product
5) Causation
6) No privity needed

Question 13

3 types of product liability claims?

Answer 13

1) Strict product liability
2) Breach of warranty
3) Negligence

Question 14

Easiest to prove product liability claim?

Answer 14

Strict product liability since D can be liable for defects created by those who came before him.

Question 15

In product negligence claims what is the importance of how obvious the defect was?

Answer 15

D cannot be liable for product negligence unless the defect was discoverable by reasonable means.

Question 16

What happens if customer doesn’t install a known available safety add-on?

Answer 16

Purchaser may be found at fault for not installing reducing liability in a comparative-fault jdx.

Question 17

In which two types of product liability claims privity does not matter?

Answer 17

In strict liability and negligence.

Question 18

What is the minimal damage required for an IIED claim?

Answer 18

emotional distress

Question 19

When mishandling of a corpse may hold D liable?

Answer 19

When mental distress results from the intentional or reckless mishandling of a relative’s corpse.

Question 20

How customs are applicable to negligence cases?

Answer 20

Customs may be considered, but they are never dispositive of a case.

Question 21

How is Nuisance qualified?

Answer 21

Nuisance is a D’s unreasonable interference with
P’s use or enjoyment of property. Examples include
noise, light and odors.

Question 22

What are the factors analyzed when deciding a nuisance claim?

Answer 22

1) Harm/Utility Balance
2) Res/Comm area
3) Freq/time of day
4) Substantial to average person in the community.
5) Loss of use or enjoyment needed

Question 23

How is compliance with a required statute applicable to negligence cases?

Answer 23

Compliance with a statute is relevant but not conclusive. A reasonable person may have to go beyond a statute’s requirements.

Question 24

How is P’s secondary injury resulting from a primary injury caused by D qualified in torts?

Answer 24

Uninterrupted chain of events -> direct cause -> proximate cause

Proximate cause can be proven by direct cause, where there is an
uninterrupted chain of events from the time of the D’s negligent act to the time of P’s injury.

Question 25

Does strict liability apply to services?

Answer 25

No, strict liability does not apply to services.

Question 26

Is there strict liability for unavoidably unsafe products?

Answer 26

No, there is no strict liability for unavoidably unsafe products. Examples include knives and many drugs.

Question 27

Does strict liability recovers economic damages?

Answer 27

No, strict liability recovers for only physical injury and property destruction.

Question 28

What are the requirements for “Invasion of Privacy (umbrella) / Instrusion upon Seclusion”?

Answer 28

(1) One who intentionally intrudes, physically or otherwise upon the solitude or seclusion of another; and
(2) the intrusion would be highly offensive to a reasonable person.

Question 29

What is the “burden-shifting” or “alternative liability” doctrine?

Answer 29

When P sues multiple actors and proves that each engaged in tortious conduct that exposed P to harm, and that the tortious conduct of one or more of them caused the P’s harm, burden of proof shifts to the Ds.

Question 30

How is assumption of risk applied to abnormally dangerous activity claims?

Answer 30

Voluntary and knowing assumption of risk is a complete defense to a claim based on the conducting of abnormally dangerous activity.

Question 31

Does a manufacturer is automatically liable for injuries to a consumer if the product doesn’t have any warning labels?

Answer 31

No, the manufacturer will be liable only if he fails to warn about a danger not already obvious to consumer.

Question 32

In a joint and severally liability jurisdiction, when are tortfeasors found jointly and severally liable?

Answer 32

When the independent tortious conduct of two or more persons is a legal cause of an indivisible injury, each person is jointly and severally liable for the recoverable damages caused by the tortious conduct.

Question 33

How can P recover in cases of botched surgeries if unable to prove that Ds acted in concert?

Answer 33

P can assert Res Ipsa Loquitur under Ybarra case and turn each person who had control of a instrumentality that could be used to cause the injury into a D bearing the burden of proving who was the actual negligent actor.

Question 34

Is there strict liability for common carriers in cases of disasters leading to the destruction of the airplane or ship?

Answer 34

No, common carriers are required to exercise a very high degree of care toward their passengers and guests, which is to say they are liable for even light negligence. But they do not have strict liability.

Question 35

Is a single negligent act enough to make someone liable for negligence?

Answer 35

Maybe, but a D will usually be judged by the foreseability of the results given the total acts taken by the D, not a single negligent act (e.g.: rifle locked in a cabinet in a store with the alarm disabled negligently).

Question 36

How is contributory negligence commonly applied as a defense?

Answer 36

If the plaintiff was negligent in some way, that negligence completely bars the plaintiff’s recovery.
This is the old common-law rule and is still the rule in only a handful of states.

Question 37

How is comparative negligence applied as a defense?

Answer 37

Plaintiff’s negligence does not completely bar recovery; it reduces the plaintiff’s ability to recover. Most jurisdictions have adopted a comparative fault approach.

Question 38

How is pure comparative fault different from modified comparative negligence?

Answer 38

In pure comparative negiglence, plaintiff’s recovery is reduced by P’s percentage of fault. In modified comparative negligence, if P is more at fault than D, then P’s recovery is barred.

Question 39

Will the fact that a P is contributorily negligent or comparatively negligent affect the outcome in a Strict liability case?

Answer 39

No, strict liability cases are usually independent of general negligence principles. However, under the 3rd restatement, P’s negligence may be diminished in comparative negligence jurisdictions.

Question 40

When can third parties recover for emotional distress, where someone is intentionally physically harmed?

Answer 40

1) They are present for the physical harm
2) They are closely related to the injured person
3) The actor knows of the 3rd party’s presence, and must be able to reasonably anticipate the 3rd party’s distress that will result from the actor’s conduct

Question 41

How are situations where an automatic mechanical device to protect against intruders judged?

Answer 41

judged with the same standards as if the owner were personally applying the force.

Question 42

Can the owner of a wild animal be responsible for injury caused to a trespasser?

Answer 42

Yes, as long as the trespasser didn’t assume the risk of injury, and the owner is negligent (no strict liability however).

Question 43

When is a landowner liable for injuries caused to trespassing children?

Answer 43

(i) an artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass,
(ii) the land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children,
(iii) the children, because of their youth, do not discover or cannot appreciate the danger presented by the condition,
(iv) the utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children, and
(v) the land possessor fails to exercise reasonable care to protect children from the harm.

Question 44

Can a person release a wild animal in a park and still not be held liable for injuries that this animal cause to others?

Answer 44

Yes, as long as the park is its natural habitat. In this sense, a park may be considered the “wild”.

Question 45

Is there a defense for hurting someone that is running away from another person because you thought this person was a thief?

Answer 45

No - there is no privilege in such case and you will be found guilty of battery.

Question 46

Will holding someone’s tie unwantedly qualify as battery?

Answer 46

Yes, since the tie is “connected” to the person’s body and the contact is offensive to an average person.

Question 47

If the defense of private necessity applies, can you still sue for trespass to land to recover for damages?

Answer 47

Yes, the person may have a privilege to use as a defense, but the person will still be liable for the damages. Therefore, it is still “worth” to sue for trespass to land to be awarded the damages.

Question 48

Can the “reasonably prudent person under the circumstances” be applied in commercial / technical scenarios?

Answer 48

Yes, In most cases, the standard of care imposed is that of a reasonably prudent person under the circumstances.

Question 49

When can a statute’s violation be considered negligence per se?

Answer 49

impose a penalty for violation.

In some cases, a statute can be conclusive evidence of a standard of care. A violation of these statutes is considered negligence per se. However, the criminal or regulatory statute must impose a penalty for a violation of a duty it creates for this concept to apply.

Question 50

Can a negligence action recover when there is only economic loss?

Answer 50

No, 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 51

Will a negligent accountant or attorney’s oppinion used by a third party automatically render the professional liable to the third party?

Answer 51

No, only if it was foreseeable that the third-party would rely on such oppinion (e.g.: “it will be used for the purpose of”).

The elements of negligent misrepresentation are: (i) the defendant provided false information, (ii) as a result of the defendant’s negligence, (iii) during the course of his business or profession, (iv) causing the plaintiff to justifiably rely upon the information, and (v) the plaintiff either is in a contractual relationship with the defendant or is a third party known by the defendant as one for whose benefit the information is supplied.

Question 52

What are the elements of an intentional interference with a contract claim?

Answer 52

To prove intentional interference with a contract, the regional retailer must prove that (1) a valid contract existed between the regional retailer and the manufacturer, (2) the national retailer knew of the contractual relationship, (3) the national retailer intentionally interfered with the contract, causing a breach, and (4) the breach caused damages to the the regional retailer.

• no requirement that the interference is “substantial”.

Question 53

Is the intent necessary for IIED the intent to act or to “inflict the emotional distress”.

Answer 53

It is to “inflict the emotional distress”. or behave recklessly given the circumstances.

A journalist broking a urn containing ashes to release his ire without intending to cause distress won’t be liable to IIED.

Question 54

Could yelling insults, threats, or indignities at someone result in a successful IIED claim against the aggressor?

Answer 54

No.

Yelling mere insults, threats, or indignities at someone does not rise to the level of extreme and outrageous conduct, even when considering the power dynamic of an employer and employee.

Question 55

How can informed consent be constructively breached by a doctor?

Answer 55

Physicians are under a specific obligation to explain the risks of a medical procedure to a patient in advance of a patient’s decision to consent to treatment.

Failure to comply with this “informed consent” doctrine constitutes a breach of the physician’s duty owed to the patient and is actionable as medical malpractice (medical negligence).

Question 56

Can a volunteer rescuer who is negligent be hold liable to the person being rescued?

Answer 56

Yes, if the volunteer rescuer is negligent, he will be hold liable despite being rescuing the victim.

Question 57

What damages can be obtained in a personal injury action?

Answer 57

All actual damages incurred, past and future pain and suffering (e.g., emotional distress), medical expenses, lost wages and any reduction in future earnings capacity, and loss of consortium.

No attorney fees?

Question 58

Can attorney fees be awarded in a personal injury case?

Answer 58

No, attorney’s fees in a personal injury suit are not recoverable.

Question 59

How is the test for recovery for an injury caused by a P’s fearful reaction to the sight of a wild animal?

Answer 59

If P is trespassing, no recovery.

If P is not trespassing, then:
–> P will recover only if the animal is unrestrained;

If the animal is restrained, P won’t recover.

Question 60

Can NIED be caused without a threat of physical impact?

Answer 60

yes, special relationship.

Yes, the duty to avoid infliction of emotional distress exists without any threat of physical impact in cases in which there is a special relationship between the plaintiff and the defendant. Here, there was no threat of physical impact to the wife caused by the doctor’s misdiagnosis. However, it is also possible for a defendant to inflict severe emotional distress that results in physical symptoms without the threat of physical impact, such as when a physician negligently misdiagnoses a patient with a terminal illness that the patient does not have, and the patient goes into shock as a result

Question 61

How does the special relationship between a pscyhotherapist and a patient increases the duty of the therapist to third-parties?

Answer 61

The special relationship between a psychotherapist and a patient can impose upon the therapist an affirmative duty to act to protect a third party.

When a patient has made credible threats of physical violence against a third party, the psychotherapist has a duty to warn the intended victim.

Question 62

Are intellectually disabled persons hold to a different standard of care in negligence suits?

Answer 62

No, an intellectually disabled person is presumed to have average mental abilities and the same knowledge as an average member of the community.

The defendant’s own mental or emotional disability is not considered in determining whether his conduct is negligent.

Question 63

Can P recover for future economic damages only arising from negligence?

Answer 63

No.
The plaintiff must prove actual injury; nominal damages are not available in negligence actions, nor are damages for the threat of future harm.

In addition, a plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover such loss through a negligence action.

Here, the plaintiff suffered only economic loss, and he cannot recover for that loss or the projected future losses.

Question 64

What is a rebuttable heeding presumption?

Answer 64

In the absence of such testimony, some states have adopted the Heeding Presumption. This rebuttable presumption instructs the jury that had an adequate warning accompanied the product, they are to presume that plaintiff would have “heeded” or followed the warning.

Question 65

What is the bursting-bubble theory?

Answer 65

Bursting-bubble theory refers to a legal principle rebutting a presumption. Under this theory, a presumption disappears when the presumed facts have been contradicted by credible evidence. … In addition, there must be substantial and believable evidence contrary to the presumed intent.

Question 66

Do state law presumptions apply to federal diversity actions?

Answer 66

Yes, they do.

Question 67

Do FRCP accept the bursting-bubble approach to presumptions?

Answer 67

No - there must be more than a slight rebuttal.

Question 68

What is the “standard of a prudent manufacturer”?

Answer 68

The judge must decide, as a matter of law, whether the defendant should be held to the standard of a PRUDENT MANUFACTURER who knew of the risks, regardless of whether the risks were reasonably discoverable before 1966.

The rule is that, even for properly manufactured and designed products, a manufacturer has a duty to warn if the product has non-obvious risks. This duty is breached if the manufacturer fails to give adequate warnings or instructions regarding the product’s correct usage.