Torts

Question 1

What is the standard of care for a medical doctor

Answer 1

A medical doctor is liable to a patient only when the evidence shows that he has failed to comply with the standard of care for the relevant specialty and medical community and his failure causes the patients injury.

Question 2

How do courts assess the standard of care of a medical doctor

Answer 2

Most courts compare the doctors conduct to national standards rather than those that prevail in his or her locality.

Because the standard requires assessment of typical doctor conduct, expert testimony is almost invariable necessary to establish a doctors negligence.

Question 3

Manufacturing defects

Answer 3

A producer is strictly liable whenever the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.
(includes food products)

The issue is whether a product was defective

Question 4

Implied warranty of merchantability

Answer 4

To be merchantable, the goods, inter alia, must be fit for the ordinary purposes for which such goods are used.

How a product came to be unmerchabtable is irrelevant. What matters is that the products was merchantable.

Question 5

The “market share” liability doctrine

Answer 5

pemits the jury to apportion damages based on the market shares of manufacturers of a defective product.

Only available if the manufactures’ defective products are fungible in relation to their capacity to cause harm.

Question 6

The alternative liability doctrine

Answer 6

permits a jury to find two defendants liable when each was negligent and either could have caused the plaintiffs injuries

Question 7

Joint venture or Joint enterprise doctrine

Answer 7

allow the jury to impute one defendants tortious conduct to other defendants who are engage din a common project or enterprise and who have made an explicit or implied agreement to engage in tortoise conduct.

Question 8

Strict products liability

Answer 8

applies to all commercial sellers, even a retailer who had no control over the design and manufacture of a product may be found liable if the retailers sells the product.

A producer is strictly liable whenever the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.

Question 9

Strict liability for abnormally dangerous activities

Answer 9

Derives from Fletcher v. Rylands, “ the D will be liable when he damages another by a thing or activity unduly dangerous and inappropriate…”

Under the First Restatement, strict liability applied to an “ultra hazardous” activity.

Under the Second and Third Restatemetns, strict liability applies to an “abnormally dangerous activity”.

The essential question is whether the risk created is so unusual, either bc of its magnitude or bc of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care.

Second Restatement divined “common usage” as to be a matter of common usage, and activity must be carried on by the great mass of mankind or by any people in the community.

Third Restatement, the strict liability is based on only two factors. An activity is abronmally dangerous if 91) the activity creates a foreseeable and highly risk of physical harm even when reasonable care is exercised by all actors; and (2) the activity is not one of common usage.

Question 10

Proximate cause

Answer 10

liability typically extends to individuals within the zone of risk. If an actor conduct creates a recognizable risk of harm only to a particular class of persons, the fact that it causes harm to a person of a different class, to who the actor could not reasonably have anticipated injury, does not render the actor liable to the persons so injured. The actor whose conduct is responsible for an altogether unexpected type of injury usually escapes liability.

Question 11

Foreseeability in proximate cause (running from danger or to it)

Answer 11

Injuries sustained when running from danger are foreseeable. Courts have also held that danger invites rescue.

Question 12

Independent contractors

Answer 12

Typically, one who employs an independent contractor is not vicariously liable for the contractors acts or omissions. But when an actor employs an independent contractor to do the work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, he is subject to liability for physical harm caused to such others by the contractors failure to take reasonable precautions against such danger.

Question 13

Duty owed to an invitee

Answer 13

an invitee is a person who enters onto the premises in response to an express or implied invitation of the landowner.

The landowner owes the invitee a general duty to use reasonable and ordinary care in keeping the property safe for the benefit of the invitee. That duty includes the duty to inspect for and correct hidden dangers and defects.

Question 14

A common law claim for defamation must satisfy four requirements

Answer 14

1. the Ds defamatory statement,
2. of and concerning plaintiff,
3. negligently or intentionally communicated to at least one third person,
4. thereby damaged the plaintiff’s reputation.

In addition, the P will have to prove some level of fault, depending on his and the defendant’s status (media, public figure); furthermore, if the statement was slander and not within a “per se” category, the P must prove “special” (pecuniary) damages.

“Special damages” slander per se categories: reflecting adversely on business/profession, or imputing a foul and loathsome disease, moral turpitude crime, or lack of chastity in a woman.

Pecuniary loss: a lost job, inheritance, gift, customers, and the like.

General damages: cover things like damage to reputation or personal relationships, and mental anguish.)

Question 15

Indemnity in strict liability cases

Answer 15

indemnity applies to strict liability in such a way that subsequent suppliers can seek indemnity from those before them in the supply chain, so that whoever was responsible for the defect is ultimately liable for it.

Question 16

Private nuisance

Answer 16

a landowner who causes a substantial, unreasonable interference with a neighbors use or enjoyment of his property without a valid defense is liable for private nuisance.

Question 17

Misappropriation of identity type of invasion of privacy

Answer 17

to establish a prima facie case for invasion of privacy by appropriation of a plaintiffs picture or name, only one element needs to be proved: that there was an unauthorized use by defendant of plaintiff’s picture or name for commercial advantage.

Question 18

Causation

Answer 18

a plaintiff bears the burden of proving by a preponderance of the evidence that a defendant actually caused his injury, just as he bears the burden of proving the other parts of his prima facie case.

Question 19

Defense of property

Answer 19

one may use reasonable force to prevent trespass, or other interference with one’s land or chattels. However, deadly force (likely to cause death or serious bodily injury) cannot be used except to prevent an intrusion that is likely to cause death or SBI to the inhabitants

Question 20

For a claim of negligent misrepresentation

Answer 20

the defendants mental state must be negligent, the D must have made the statement during the course of his business and with a pecuniary interest in the transaction, and the P must be a person or member of a limited group that the D intended to reach or who the D knows a recipient of the information intended to reach.

Even if these elements are met, recovery for negligent misrepresentation is usually limited to pecuniary loss unless it involves a risk of physical harm.

Question 21

Battery

Answer 21

is the intentional infliction of a harmful or offensive bodily contact.

Question 22

Trespassers

Answer 22

the general rule is that the landowner owes not duty to a trespasser to make her land safe, to warn of dangers on it to avoid carrying on dangerous activities on it, or to protect the trespasser in any way.

Question 23

Wild animals

Answer 23

the rule is that the owner of a wild animal is strictly liable for the animals conduct creating damage.

Question 24

Outside the zone of danger recovery

Answer 24

to recover, a plaintiff who was outside the zone of danger must:

1. be closely related to the injury victim,
2. be present at the scene of the injury-producing event and have been aware that the event was causing an injury to the victim; and
3. have suffered serious emotional distress as a result of his or her presence at the scene.

Question 25

Duty to aid

Answer 25

the general rule is that there is no duty to aid unless one of these elements exist: the defendants negligence created the peril, a “special relationship” mandates affirmative acts, or the defendant had previously undertaken to act for the plaintiffs benefit.

Question 26

if a Plaintiff is injured by a product that is defective

Answer 26

a plaintiff can prove that a products design is defective by pointing out a reasonable alternative design that offers a better balance of costs and benefits. Usually this better balance means that the alternative design is safer without being significantly more expensive or less useful than the design the defendant used.

Note that if a product is unreasonably dangerous its maker is not saved from liability either by a warning or by the consumers free choice in selecting the product–a manufacturer is obliged to take all reasonable cost effective steps to make the product safe.

Question 27

Firefighters rule

Answer 27

the common law rule says that when firefighters or police officers are injured during the course of the job, they normally have no claim against the person whose conduct created the peril. Limited to risks that are inherent in and special to, that particular occupation.

Question 28

Fraud

Answer 28

one who fraudulently makes a misrepresentation of fact, opinion, or law for the purpose of inducing another to act or to refrain from acting in reliance upon it, is subject to liability to the other in deceit (fraud) for pecuniary loss caused to him by his justifiable reliance upon the misrepresentation.

Question 29

Abnormally dangerous activities

Answer 29

a. an actor who carries on an abnormal dangerous activity is subject to strict liability of physical harm resulting from the activity
b. an activity is abnormally dangerous if:

1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is excercised by all actors and
2) the activity is not one of common usage.

Question 30

When can the burden of proof shift to Ds

Answer 30

b) when the P sues all of multiple actors and proves that each engaged in tortious conduct that exposed the P to a risk of harm and that the tortious conduct of one or more of them caused the Ps harm but the P cannot reasonably be expected to prove which actor or actors cause the harm, the burden of proof, including both production and persuasion, on factual caution is shifted to the defendants.

Question 31

S 876 Persons acting in concert

Answer 31

for harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him.

Question 32

Contributory negligence is not applicable when

intentional injury

Answer 32

the Ps contributory negligence does not bar recovery against a D for a harm caused by conduct of the D which is wrongful bc it is intended to cause harm to some legal protected interest of the P or a third person.

Contributory negligence as a matter of law cannot be a defense to an action for an intetional tort like battery.

Question 33

Interference with dead bodies

Answer 33

one who intentionally, recklessly, or negligently removes, withholds, mutilates, or operates upon the body of a dead person or prevents Ds proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body.

Question 34

Assumption of risk in abnormally dangerous activity

Answer 34

bars recovery for the harm

Question 35

Liability of multiple tortfeasors for indivisible harm

Answer 35

if 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 36

Injury of “normal consequence”

subsequent injury not related to the first but or normal consequence

Answer 36

if the negligent actor is liable for an injury which impairs the physical condition of another’s body, the actor is also liable for harm sustained in a subsequent accident which would have not occurred had the other’s condition not been impaired and which is of normal consequence of such impairment.

Question 37

a landowner can be privileged to use even deadly force to prevent intrusion on his land Only if

Answer 37

he reasonable believes that the intruder, unless expelled, is likely to cause death or serious bodily harm.

Question 38

A possessor of land open to the public owes the public a duty to:

(ex, hotel owner who hires contractor)

Answer 38

keep the premises reasonably safe, and his duty may not be delegated to an independent contractor.

Question 39

Conversion is

Answer 39

an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justifiably be required to pay the other the full value of the chattels

Question 40

Res Ipsa Loquitor

Answer 40

permits the plaintiff to create an inference of the defendants negligence without any direct evidence showing negligence.

Question 41

Private nuisance

Answer 41

is a substantial, unreasonable interference with another individuals use or enjoyment of his property.

Question 42

Third parties can recover for emotional distress if:

Answer 42

1. they are present for the physical harm;
2. they are closely related to the injured person; and
3. the actor knows of the TPs presence, and must be able to reasonably anticipate the third parties distress that will result from the actors conduct.

Question 43

In most situations, a medical professionals duty of care extends

Answer 43

only to his or her patient. Considerations of privacy and confidentiality usually lead courts to deny a duty on the part of therapists to non-patients when only the patient is at risk.

Question 44

When a seller induces a buyer’s consent to a contract by means of a material misrepresentation

Answer 44

the resulting contract is voidable at the election of the buyer.

Question 45

The tort of assault requires

Answer 45

that the plaintiff have an apprehension of an imminent harmful or offensive bodily contact

Question 46

To prevail in a Negligent infliction of emotional distress (NIED0 claim

Answer 46

a plaintiff usually has to prove that the defendant was negligent and that the plaintiff suffered emotional distress that manifests in physical symptoms.

A plaintiff does not need to prove physical symptoms in a case involving the mishandling of a corpse because serious emotional distress is deemed foreseeable.

Question 47

Under the doctrine of apparent agency

Answer 47

a principal is liable if a reasonable third party would believe–due to an act or neglect on the part of the principal–that an agent had the authority act on the principals behalf, the principal is bound by the actions of the agent, even if there was no agency relationship established between the principal and the purported agent.

Question 48

In order to prevail in a negligence claim

Answer 48

the plaintiff must demonstrate there was a duty, that the defendant breached the duty, and the breach of duty caused harm to the plaintiff.

Question 49

The elements of an intentional infliction of emotional distress (IIED)

Answer 49

i. defendant intentionally or reckless
ii. engages in extreme or outrageous conduct, which causes
iii. severe emotional distress

Question 50

Defense of others

Answer 50

defense is available to someone who uses

reasonably necessary force when another is at risk of being harmed.

Question 51

Defenses to strict liability

Answer 51

defenses that can be raised to a strict liability claim, such as comparative negligence. Assumption of the risk is often used in a comparative fault analysis

Question 52

A negligent tortfeasor is not generally liable for the criminal acts of third parties made possible by his negligence, but there is an exception

Answer 52

when the tortfeasor should have realized the likelihood of the crime at the time of his negligence. The issue of foreseeability is generally a question for the jury.

Question 53

AS common law right of publicity

Answer 53

can be violated when an advertisement, viewed as a whole, leaves little doubt that the ad is intended to depict a specific celebrity who has not consented to the use of his or her identity.

Question 54

The privilege of self-defense permits the use of force

Answer 54

actually and reasonably believed to be necessary given the threat posed by the plaintiff

Question 55

Whether an employee was acting within the scope of his employment is generally a question of fact. An employee’s conduct is within the scope of his employment if:

Answer 55

(1) it is of the kind that the employee is employed to perform; (2) it occurs substantially within the authorized time and space limits; and (3) it is motivated, at least in part, by a purpose to serve the employer. The fact that the act was not authorized is not determinative.

Question 56

Safety statutes, like traffic ordinances are typically deemed to protect the public at large

Answer 56

an actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.

Question 57

Indemnification

Answer 57

full reimbursement for damages paid to the plaintiff. Is available to a tort defendant who has paid the plaintiff’s damage award when, as between the paying and nonpaying defendants, the paying defendant was not at fault in causing the plaintiff’s injuries and the non-paying defendant was at fault.