Torts Add ons

Question 1

Does res ipsa apply to temporary dangers?

Answer 1

NO, an inference of negligence cannot be reached for something that may have happened instantaneously before injury occurred (e.g. spill)

Only when the possessor had time to know about condition

Question 2

Wrongful birth action

Answer 2

Parent’s claim for birth of unhealthy child

Majority view: pay for child’s special needs, P&S, emotional distress

Minority: no recovery

Question 3

Wrongful pregnancy

Answer 3

Claim for birth of healthy but unwanted child due to malpractice in contraception placement

Damage: cost of defective procedure, pregnancy expenses, remedial measures, emotional distressW

Question 4

Wrongful life

Answer 4

Unhealthy child’s claim for unwanted life

Majority: no recovery

Minority: cost of medical needs

Question 5

When does self-defense terminate?

Answer 5

Right terminates once FEAR OF DANGER ends (e.g. can’t keep shooting someone who is already unconscious)

Question 6

Is negligent relevant in strict liability?

Answer 6

NO!!! This is common wrong answer

Question 7

Is threat to harm someone in 2 hours if they don’t repay debt assault?

Answer 7

NO bc harm not IMMINENT

Question 8

Can a party who is negligent still previal under res ipsa?

Answer 8

YES, even though a plaintiff cannot recover if he CAUSED the harm in part, this requirement is NOT satisfied if his negligence merely INCREASES LIKELIHOOD of D’s negligence (e.g walking too close to hazardous site)

So long as comparative fault Jdx, his recovery is merely REDUCED by his own negligence, NOT barred

Question 9

Is pure economic loss without injury or property damage recoverable under negligence action?

Answer 9

NO

Question 10

Is assumption of the risk a separate defense requiring jury instructions at trial?

Answer 10

No, it is part of comparative-fault analysis, NOT separate defense

Question 11

Can a party assume the risk related to another party’s ultrahazardous activity?

Answer 11

YES, still a possible defense to strict liability (e.g. not vacating a home after warning of fumigation)

Question 12

Can a waiver/release of responsibility relieve a provider/gym/resort of liability?

Answer 12

Yes, if express and clearly enumerated, can bar recovery

Question 13

When is a liability waiver NOT enforceable?

Answer 13

If it goes against public policy,
is ambiguous,
is hidden in contracts, OR
is not signed by the victim.

Question 14

When is interference with other business K NOT considered tortious interference?

Answer 14

When K is AT WILL

Question 15

Privilege to protect others from self-harm

Answer 15

D can do if other person does not understand consequences of actions and D reasonably believes he is about to kill or seriously injure himself

Question 16

In traditional CL jdx, is assumption of the risk a completed defense to negligence liability?

Answer 16

YES, if plaintiff knew about and voluntarily accepted risk, he is said to have assumed the risk and CANNOT recover

Question 17

Does learned intermediary duty apply to all medications?

Answer 17

NO, ONLY prescription, NOT over-the-counter

Question 18

Can strict liability claim be raised for destruction of product itself?

Answer 18

NO, this constitutes pure economic loss

MUST have other physical harm (body or property damage)

Question 19

If a shopkeeper unreasonably questions someone for two hours, but does not keep them confined or restrained, is this false imprisonment?

Answer 19

NO, NOT false imprisonment bc even though unreasonable, person could leave

Question 20

If person has signs posted regarding attractive nuisance, but no fences, have they breached duty?

Answer 20

NOT NECESSARILY–need fences if burden on homeowner would be slight, but if it would be major burden, not required

Question 21

Does causing a person to get frostbite count as battery

Answer 21

YES

Question 22

Can groups or corporations be defamed?

Answer 22

YES

Question 23

Is physical injury required for bystander IIED ?

Answer 23

NO, just emotional distress, but party must be FAMILY MEMBER

Question 24

For res ipsa to apply to torts of multiple parties, must there be grounds for fact finder to infer that both parties were negligent?

Answer 24

NO, just ONE of the two is negligent under res ipsa

Question 25

Standard of care for person with physical disability?

Answer 25

Standard of reasonable person with SAME disability

Question 26

NIED zone of danger

Answer 26

1) D’s negligence placed P in danger of immediate bodily harm
2) danger caused P SERIOUS EMOTIONAL DISTRESS

Question 27

NIED: special situations theory

Answer 27

Liability for D when serious emotional distress caused by

1) erroneous announcement of death or illness
2) mishandling corpse
3) contaminated food with repulsive foreign obejct

Question 28

Can a 12yo be assumed to understand nature of attractive nuisance?

Answer 28

POSSIBLY: if old enough to understand the danger and read warning signs, likely not recoverable under attractive nuisance theory

Question 29

Can common carrier be liable for failing to prevent reckless behavior of another?

Answer 29

YES, can be reckless for e.g. continuing to serve alcohol, but NOT liable for tort caused by another

Question 30

Can a person with heightened sensitivities (e.g. rare smell disorder) file private nuisance claim?

Answer 30

ONLY if interference would be offensive/annoying to REASONABLE person

Here, this would not bother reasonable person, so cannot recover

Question 31

If a person broadcasts a defamatory statement to a group of people who do not speak the language, does that count as publishing?

Answer 31

NO, for defamation, publishing must be intentional or negligent comms to third party that UNDERSTANDS its defamatory nature

Question 32

Does 1) slander 2) slander per se require proof of monetary loss?

Answer 32

Slander: YES

Slander per se: NO

Question 33

Breach of warranty for products: majority v. minority approach

Answer 33

Majority: member of FAMILY or HOUSEHOLD

Minority: ANY foreseeable user

Question 34

Can a person recover for trespass when there is no physical damage to the land?

Answer 34

YES

Question 35

Private necessity as defense to trespass

Answer 35

Landowner must permit trespass when necessary to protect self/others/property from serious harm

Question 36

What duty is owed to FORESEEABLE v. UNFORESEEABLE land entrants?

Answer 36

Foreseeable: reasonable care

Unforeseeable: NONE

Question 37

Does Good Samaritan rule apply by default?

Answer 37

NO, minority rule, so don’t apply on MBE unless they tell you it applies

Question 38

When is NIED recovery possible WITHOUT zone of danger

Answer 38

SPECIAL RELATIONSHIP

e.g. when common carrier mistakenly reports the death of a relative

Question 39

How to calculate recovery under MBE default?

Answer 39

pure comparative liability AND J&S

plaintiff can recover ENTIRE AMOUNT from EITHER D MINUS the amount plaintiff is liable for (so if one D only 30% liable, can still collect total amount minus P percentage negligent)

Question 40

Can a generalized statement be defamatory even if it doesn’t identify a specific party?

Answer 40

YES, if group is so SMALL that a REASONABLE PERSON would infer who it applies to

Question 41

Does trespass to chattels require actual harm to chattels? Does trespass to land?

Answer 41

Trespass to chattels: actual harm REQUIRED

trespass to land: harm NOT required

Question 42

Can a person recover for injuries that occur from accident when a second set of injuries occur months later?

Answer 42

YES, so long as the new injuries are a NORMAL CONSEQUENCE of original injury

Question 43

If a purchaser relies on sale’s associate’s opinion, but sales associate does not know of the purpose, is this still warranty of fitness for particular purpose?

Answer 43

NO, salesperson must KNOW OF particular purpose

Question 44

If party republishes defamatory statement but expresses that they aren’t sure of its truthfulness, is it defamation?

Answer 44

YES

Question 45

Does transferred intent apply to battery when battery done in self-defense?

Answer 45

NO, cannot recover against person using self-defense when another party accidentally struck

Question 46

Torts Single Intent Rule

Answer 46

majority rule–that D can be liable if he INTENDS to cause contact, and does not need to INTEND for such contact to be harmful

Question 47

Does assumption of the risk apply to all torts?

Answer 47

NO, only when standard is recklessness or negligence

NOT intentional torts eg battery