Torts Add ons Flashcards
Does res ipsa apply to temporary dangers?
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
Wrongful birth action
Parent’s claim for birth of unhealthy child
Majority view: pay for child’s special needs, P&S, emotional distress
Minority: no recovery
Wrongful pregnancy
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
Wrongful life
Unhealthy child’s claim for unwanted life
Majority: no recovery
Minority: cost of medical needs
When does self-defense terminate?
Right terminates once FEAR OF DANGER ends (e.g. can’t keep shooting someone who is already unconscious)
Is negligent relevant in strict liability?
NO!!! This is common wrong answer
Is threat to harm someone in 2 hours if they don’t repay debt assault?
NO bc harm not IMMINENT
Can a party who is negligent still previal under res ipsa?
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
Is pure economic loss without injury or property damage recoverable under negligence action?
NO
Is assumption of the risk a separate defense requiring jury instructions at trial?
No, it is part of comparative-fault analysis, NOT separate defense
Can a party assume the risk related to another party’s ultrahazardous activity?
YES, still a possible defense to strict liability (e.g. not vacating a home after warning of fumigation)
Can a waiver/release of responsibility relieve a provider/gym/resort of liability?
Yes, if express and clearly enumerated, can bar recovery
When is a liability waiver NOT enforceable?
If it goes against public policy,
is ambiguous,
is hidden in contracts, OR
is not signed by the victim.
When is interference with other business K NOT considered tortious interference?
When K is AT WILL
Privilege to protect others from self-harm
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
In traditional CL jdx, is assumption of the risk a completed defense to negligence liability?
YES, if plaintiff knew about and voluntarily accepted risk, he is said to have assumed the risk and CANNOT recover
Does learned intermediary duty apply to all medications?
NO, ONLY prescription, NOT over-the-counter
Can strict liability claim be raised for destruction of product itself?
NO, this constitutes pure economic loss
MUST have other physical harm (body or property damage)
If a shopkeeper unreasonably questions someone for two hours, but does not keep them confined or restrained, is this false imprisonment?
NO, NOT false imprisonment bc even though unreasonable, person could leave
If person has signs posted regarding attractive nuisance, but no fences, have they breached duty?
NOT NECESSARILY–need fences if burden on homeowner would be slight, but if it would be major burden, not required
Does causing a person to get frostbite count as battery
YES
Can groups or corporations be defamed?
YES
Is physical injury required for bystander IIED ?
NO, just emotional distress, but party must be FAMILY MEMBER
For res ipsa to apply to torts of multiple parties, must there be grounds for fact finder to infer that both parties were negligent?
NO, just ONE of the two is negligent under res ipsa
Standard of care for person with physical disability?
Standard of reasonable person with SAME disability
NIED zone of danger
1) D’s negligence placed P in danger of immediate bodily harm
2) danger caused P SERIOUS EMOTIONAL DISTRESS
NIED: special situations theory
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
Can a 12yo be assumed to understand nature of attractive nuisance?
POSSIBLY: if old enough to understand the danger and read warning signs, likely not recoverable under attractive nuisance theory
Can common carrier be liable for failing to prevent reckless behavior of another?
YES, can be reckless for e.g. continuing to serve alcohol, but NOT liable for tort caused by another
Can a person with heightened sensitivities (e.g. rare smell disorder) file private nuisance claim?
ONLY if interference would be offensive/annoying to REASONABLE person
Here, this would not bother reasonable person, so cannot recover
If a person broadcasts a defamatory statement to a group of people who do not speak the language, does that count as publishing?
NO, for defamation, publishing must be intentional or negligent comms to third party that UNDERSTANDS its defamatory nature
Does 1) slander 2) slander per se require proof of monetary loss?
Slander: YES
Slander per se: NO
Breach of warranty for products: majority v. minority approach
Majority: member of FAMILY or HOUSEHOLD
Minority: ANY foreseeable user
Can a person recover for trespass when there is no physical damage to the land?
YES
Private necessity as defense to trespass
Landowner must permit trespass when necessary to protect self/others/property from serious harm
What duty is owed to FORESEEABLE v. UNFORESEEABLE land entrants?
Foreseeable: reasonable care
Unforeseeable: NONE
Does Good Samaritan rule apply by default?
NO, minority rule, so don’t apply on MBE unless they tell you it applies
When is NIED recovery possible WITHOUT zone of danger
SPECIAL RELATIONSHIP
e.g. when common carrier mistakenly reports the death of a relative
How to calculate recovery under MBE default?
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)
Can a generalized statement be defamatory even if it doesn’t identify a specific party?
YES, if group is so SMALL that a REASONABLE PERSON would infer who it applies to
Does trespass to chattels require actual harm to chattels? Does trespass to land?
Trespass to chattels: actual harm REQUIRED
trespass to land: harm NOT required
Can a person recover for injuries that occur from accident when a second set of injuries occur months later?
YES, so long as the new injuries are a NORMAL CONSEQUENCE of original injury
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?
NO, salesperson must KNOW OF particular purpose
If party republishes defamatory statement but expresses that they aren’t sure of its truthfulness, is it defamation?
YES
Does transferred intent apply to battery when battery done in self-defense?
NO, cannot recover against person using self-defense when another party accidentally struck
Torts Single Intent Rule
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
Does assumption of the risk apply to all torts?
NO, only when standard is recklessness or negligence
NOT intentional torts eg battery
