Torts BLL

Question 1

Strict liability - wild animal case

Answer 1

Possession of wild animals
1. non-domesticated animals
2. injury that would normally occur
If P is injured by animal’s characteristic propensity, D is strictly liable (Due to the fear or something very normal when it faces with wild animals. If the injury that does not normally occur, then no strict liability, rather “negligence” case
(사자를 보고 놀라서 다쳤다&raquo_space; strict liability)
(그런적이 없었는데 문 닫는걸 깜빡해서 말이 나가서 다침&raquo_space; negligence case)

3. Domestic animals with dangerous propensities (devil dog)

Question 2

Res ipsa loquitur

Answer 2

creates an inference of negligence, NOT THE LIABILITY OF NEGLIGENCE, just INFERENCE

1) type of accident is typically the result of negligence,
2) accident is attributable to D (D had sole control of the instrumentality causing injury),
3) P did not contribute to the injury

Question 3

joint and several liability

Answer 3

Under joint and several liability, the entire amount can be collected from any one of the defendant even in the situation where P is also liable. That defendant, in turn, can seek to recover a proportional share of the damages from the other Ds.

Question 4

Intentional tort - trespass to land

Answer 4

Intent (not intend to get into the someone’s property, but just getting there is enough), no need to know whose property you are entering

Physical invasion of land (no damage is required)

Defense - private necessity (in order to avoid harm)
still liable for damages to the property, though not liable for trespass

public necessity - preventing public harm (absolute defense)
not liable for the damages to the property

Question 5

Defense to Intentional Torts

Answer 5

Consent
Self-Defense
(Defense of others, defense of property)
Private necessity
Public necessity

MENTAL ILLNESS it not a defense in intentional torts

Question 6

Intentional Tort

Answer 6

General elements: voluntary act (affirmative, not reflexive or unconscious), intent (shown by desiring consequences or having purpose to bring consequences or knowing such consequences were substantially certain to occur, children can form intent), actual causation (but for /liable for all consequences)

Question 7

Intentional torts- battery

Answer 7

Harmful or offensive contact, where (1) D intended such harmful or offensive contact or (2) imminent apprehension of such contact to P or P’s person; D caused such contact. (단지 겁을 주는 행동만으로도 가능)
i. P’s person: P or something closely connected to P. P need not be aware of conduct. (내 가방을 매고 있을때 쳐도 해당가능)
ii. Direct/indirect physical contact offensive to a reasonable person
No need to have harms

Question 8

Three types of Product liability

Answer 8

Negligence
Breach of Warranty
Strict product liability

Question 9

Product liability - negligence

Answer 9

Should have done something, but has not
negligence in the chain caused the product to break or not work
Damages: Physical injury or property damages are recoverable. BUT Purely economic losses NOT recoverable
1. Duty to mitigate: P has a duty to take reasonable steps to mitigate damages

Defense: same as negligence

Question 10

Product liability - breach of warranty

Answer 10

Promise about product’s performance, but it’s not working

Express
Implied
merchantability - breached by any seller of the goods, refers to whether the goods are of average acceptable quality and fit for the ordinary purpose the goods are used
Fitness for a particular purpose (breached by any seller of the goods) refers to whether the seller knows or has reason to know the particular purpose the goods are required for and the buyer is relying on the seller’s skill and judgment in selecting the goods

Purely economic losses are recoverable
DEFENSES: assumption of risk (using while knowing breach), contributory negligence, failure to give notice of breach (under UCC)

Question 11

Strict product liability

Answer 11

(1) Defective product
manufacturing: Product came out more dangerous than intended. Prove this defect with: Product failed to perform as safely as an ordinary consumer would expect.
design: Feasible alternative test - Product could have been made safer without serious impact on the product’s price or utility

Sold by commercial seller: Any commercial supplier in distribution chain of the product has an absolute duty to supply safe products
Used by foreseeable customer: including people in the circle
Used in the manner it was intended: 핸드폰으로 전화 1000번 OKAY, but 해머로 사용 불가능

(2) Inadequate / failure to warn
Product must have clear and complete warnings of dangers that may not be apparent to users. One language OK. Not needed if apparent danger (e.g., knife)

Defense: misuse, assumption of the risk

Question 12

Vicarious liability - Independent contractor

Answer 12

Generally, Person who hires Independent Contractor is not vicariously liable for negligence of Independent Contractor

UNLESS (1) engaged in inherently dangerous activity (excavating) or (2) duty is non-delegable as a matter of public policy or safety

Question 13

Defenses to defamation

Answer 13

(1) Truth is an absolute defense to Defamation
(2) Privilege
- absolute
– statements made in the course of official proceedings
- qualified
– statement appears necessary to protect D and public interest
– Honest and reasonable belief what you said

Question 14

Defamation

Answer 14

False statement
about P
hurts reputation
publication
damages

Question 15

Invasion of Privacy

Answer 15

Public disclosure of a private matter

Defense: Newsworthy

Question 16

False Imprisonment

Answer 16

Intent
Confined at the bounded area
D aware of the confinement

(if D sleeps, no false imprisonment)

Shopkeeper’s privilege
- reasonable belief that you stole some items
- detained in a reasonable matter
- during the reasonable period of time

Question 17

IIED

Answer 17

-intent or reckless
-extreme and outrageous conduct
-severe emotional distress (no need to have physical harm)

Bystander (family member)
- no physical harm
- severe emotional distress

Bystander (non-family member)
- physical harm needed

Question 18

Intentional Trespass

Answer 18

Trespass to land: D’s intentional act (not necessarily to trespass) causes physical invasion of the real property
i. Physical invasion: Entry by anything tangible (e.g., bullet, pesticide, person), not light, noise or vibrations
ii. Π’s land: Anyone in possession of land (LL, T, APer), which includes surface, airspace, subterranean space
iii. Mistake is not a defense: Δ needs intent to enter land, not intent to trespass
iv. Damages: Not required for intentional entry
Recovery: nominal damages

Question 19

Misrepresentation

Answer 19

Intentional misrepresentation:
Material misrepresentation made
with intent or knowledge to mislead
P reasonably relied on the misrepresentation
gets damages

Negligent misrepresentation
Material misrepresentation made with negligent or innocent scienter,
reasonably relied on the misrepresentation
gets damages

Question 20

Damages – pure economic loss in strict product liability claim

Answer 20

Physical injury or property damages are recoverable. BUT Purely economic losses NOT recoverable (차가 갑자기 불탐)
1. Duty to mitigate: Π has a duty to take reasonable steps to mitigate damages
Under the economic loss rule, there is no recovery on a strict products liability theory if a defect in a product causes damage only to the product itself, as opposed to personal injury or injury to other property. In those cases, can only get the contractual remedies

Question 21

liability in case of negligent hiring

Answer 21

employer is only liable when the conduct is related to the negligence hired. Otherwise, not liable. (집에서 직장 출근&raquo_space; No, 외근중&raquo_space; Yes)

Question 22

last clear chance

Answer 22

At common law, contributory negligence completely barred his right to recover. Even if the defendant is much more negligent than the plaintiff, in a contributory negligence jurisdiction, if a plaintiff is even 1% negligent, he is completely barred from recovery. However, under the doctrine of last clear chance, a plaintiff can recover despite their own contributory negligence. Under this doctrine, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence.

Question 23

Trespass to Chattel
Conversion

Answer 23

Trespass to chattel: Intentional interference with Π’s possessory right to personal property (includes pets)

ii. Conversion: Substantial interference with Π’s possessory right to personal property
1. Substantial interference involves longer deprivation of possessory right, full damages, destruction
iii. Π may recover rental value or full FMV at time of trespass/conversion (damages) or possession (replevin)

Question 24

“takes the victim as he finds him

Answer 24

The phrase “takes the victim as he finds him” refers to the principle that a negligent defendant must pay for the full extent of the injuries to the plaintiff even if the plaintiff was unusually vulnerable to injury. There is no indication here that the pedestrian was unusually vulnerable before the accident.
Once a plaintiff meets the elements of negligence, he may recover ALL damages, regardless of whether they were foreseeable.

Question 25

slander per se

Answer 25

where defamation is spoken (slander), the plaintiff must prove special (i.e., pecuniary) damages, unless the verbal defamation falls within one of four exceptions, which are considered slander per se: (i) criminal activity; (ii) occupational misconduct; (iii) sexual misconduct; or (iv) loathsome disease.

Question 26

puinitive damages

Answer 26

Punitive damages are generally not recoverable in negligence cases unless additional proof is offered that the defendant was wanton and willful, reckless, or malicious, which was not the case here.
Reckless conduct is usually sufficient to award punitive damages, even in some negligence actions.

Question 27

NIED Physical harm exception

Answer 27

Typically, for a bystander to recover damages for emotional distress without any physical injury, he must show that he was in a close relationship with the injured party, was present at the scene, and witnessed the event. However, courts have allowed recovery in the absence of those factors in special situations, including the negligent mishandling of dead bodies in a way that causes emotional distress to family members

Question 28

The widow will not prevail in a suit for damages based on emotional distress. The only applicable claim would be intentional infliction of emotional distress (“IIED”), which requires a showing that the defendant acted with extreme and outrageous conduct, with the intent to cause severe emotional distress, and that the conduct, in fact, caused severe emotional distress. Although actual physical injury is not required for an IIED claim, the distress must be sufficiently severe that the plaintiff sought medical aid for it and that a reasonable person would suffer severe distress
Being badly frightened and outraged, without more, is not enough to show severe emotional distress.

Question 29

PRIVACY TORTS

Answer 29

a. Commercial appropriation: Unauthorized (no permission or negligent in verifying) use of Π’s picture or name for Δ’s commercial purpose. Π need not be identified by name so long as clear that the ad is meant to depict that person

b. Intrusion into seclusion: Δ intentionally interferes with Π’s zone of privacy in a manner offensive to a reasonable person (for example, eavesdropping, wiretapping, stalking)

c. Public disclosure of private true facts: Disclosure of true facts that 1) would be highly offensive to a reasonable person and 2) is not newsworthy

d. Portrayal in a false light: Publication of false information that would be highly offensive to a reasonable person

Question 30

When two or more tortfeasors act in concert and injure a plaintiff, then each will be jointly and severally liable for the entire injury. Moreover, anyone who is found to have been engaging in an abnormally dangerous activity will be strictly liable for any injuries which result from the activity. Here, the man and woman were competing in an illegal drag race and were driving over the speed limit. They were acting in concert by drag racing. The man will, therefore, be liable for the pedestrian’s injuries. Even though the man did not cause the injury, he is still liable because he was acting in concert and negligently drag racing.