Torts Essay Flashcards

Question

types of product defects

Answer 1

o Manufacturing = deviation from what manufacturer intended the product to be. Measured by whether product conforms to D’s own specifications. o Design = consumer expectation test: dangerous beyond expectation of ordinary consumer. OR risk utility test: P proves reasonable alternative design that is economically feasible was available to defendant, and failure to use rendered unsafe. o Failure to warn = foreseeable risks of harm not obvious to ordinary user, which could have been reduced or avoided with reasonable instructions or warnings.

Answer 2

contributory negligence: complete bar where P unreasonably used known defect (although not most places anymore), or reduces recovery in comparative J assumption of risk: knowing and voluntary assumption of risk bars recovery

Answer 3

Products liability actions brought under warranty theories can be brought against retailers, manufacturers and distributors. Plaintiffs need not prove fault, but must provide seller with notice of breach within statutory period.

Answer 4

Implied warranty of merchantability Fitness for a particular purpose, if seller knows purpose and buyer relies on seller’s skill / judgment

Answer 5

Disclaimers, but any limitation of consequential damages for personal injury for consumer goods is prima facie unconscionable Assumption of risk Comparative Fault Product Misuse

Answer 6

A plaintiff may bring an action for defamation if: i) The defendant’s defamatory language; ii) Is of or concerning the plaintiff iii) Is published to a third party who understands its defamatory nature; AND iv) It damages the plaintiff’s reputation.

Answer 7

Language that harms a person’s reputation by diminishing respect toward the plaintiff or deters others from associating with them

Answer 8

A reasonable person must believe the language refers to this particular plaintiff

Answer 9

Publication is intentional or negligent communication to a third party who understands its defamatory nature. Republication can count.

Answer 10

Public officials / public figures must prove falsity of statement as prime facie case, and D acted with actual malice (knowledge of falsity or reckless disregard).

Answer 11

Private plaintiffs on matter of public concern must prove defendant acted with fault (negligence or actual malice).

Answer 12

Written, printed, or otherwise recorded defamation. Damages: general damages for harm to reputation; need not prove actual damages

Answer 13

Spoken word, gesture, or any other form of defamation other than libel. To recover, must prove special damages or slander per se (can then add general damages). Special damages: prove that third party heard and acted adversely.

Answer 14

need not prove damages if statement fits into categories: 1) committing a crime; 2) conduct reflecting on plaintiff’s lack of fitness to conduct business/trade/profession; 3) loathsome disease; 4) sexual misconduct

Answer 15

Truth, consent, absolute privileges (judicial and legislative proceedings, spouses), qualified privileges (in interest of publisher, recipient, public interest)

Answer 16

Invasion of privacy includes for causes of action: 1) misappropriation of the right to publicity; 2) intrusion upon seclusion; 3) placing P in false light; 4) public disclosure of private facts

Answer 17

Plaintiff must prove: i) D’s unauthorized appropriation of P’s name, likeness, or identity ii) Appropriation was for D’s advantage iii) P did not consent iv) Appropriation resulted in injury

Answer 18

Intentional intrusion into plaintiff’s private affairs, solitude, or seclusion, if highly offensive to a reasonable person

Answer 19

Plaintiff must prove: i) D made public facts about P that placed them in false light; and ii) Such false light would be highly offensive to a reasonable person Most Js require actual malice.

Answer 20

D gave publicity to matter concerning private life of another, and the matter publicized: i) Would be highly offensive to a reasonable person and ii) Is not of legitimate concern to the public. Publicity = broad dissemination so as to become public knowledge. This tort is disfavored.

Answer 21

Emotional and mental distress suffice

Answer 22

absolute and qualified privileges, consent

Answer 23

Requisite mental state for intentional tort is established if D acts intentionally—with purpose of causing consequences of act or knowing the consequence is substantially certain to result.

Answer 24

Exists when 1) D intends to commit assault and instead commits battery; 2) intends to commit battery, assault, false imprisonment against one but commits against another; 3) intends to commit batter and instead commits assault.

Answer 25

Requires 1) harmful or offensive contact (objective) with P’s body, 2) intent to cause the contact, and 3) causation.

Answer 26

Requires 1) act or threat placing plaintiff in reasonable apprehension of imminent harmful or offensive contact; 2) intend by D to place D in apprehension; 3) causation.

Answer 27

Requires 1) extreme and outrageous conduct by D causing severe emotional distress to P, and 2) intent to cause such distress.

Answer 28

Intentional confinement/restraint of p for any amount of time, with no reasonable means of safe escape. Defense: shopkeeper’s privilege if reasonably suspects P of stealing and details for reasonable amount of time in reasonable manner on or near premises

Answer 29

Actual: P expressly consents to D’s otherwise tortious intentional conduct if P is willing for conduct to occur. apparent: D not liable if reasonable belief P consented presumed: D is not liable if: i) Under prevailing social norms, D is justified in engaging in conduct in absence of P’s actual or apparent consent AND ii) D has no reason to believe P would not have actually consented emergency: D not liable if: i) Purpose of conduct is to prevent or reduce a risk to life or health of P; ii) D reasonably believes that their conduct is necessary to prevent/reduce a risk to life or health that substantially outweighs P’s interest in avoiding the conduct and immediate action is necessary

Answer 30

consent, self-defense, defense of others

Answer 31

A D has privilege to use force against P for purpose of defending himself against P’s unprivileged use of force if D reasonably believes the force is both necessary and proportionate to the force P is inflicting or about to inflict.

Answer 32

A D is privileged to engage in conduct that would otherwise constitute a battery, assault, or false imprisonment to prevent P’s imminent intrusion or to terminate a P’s intrusion on D’s land or person property if: i) Intrusion is not privileged; ii) D reasonably believes that P is intruding and intrusion can be prevented only by the means used; iii) D first asks P to desist, and P disregards (or D reasonably believes request will be useless) iv) Means used are reasonably proportionate to value of interest protecting; AND v) Means used are not intended or likely to cause death or serious injury.

Answer 33

Allowed if: i) Third person is member of D’s immediate family or household; ii) D reasonably believes D is under legal duty to protect; OR iii) Third person requested D protect their property or employed them for such.

Answer 34

A parent is privileged to use reasonable force, threat of force, or confinement against the parent’s minor child for the purpose of disciplining, educating, controlling, or otherwise promoting the welfare of the child. REasonable force determined by totaly of circumstances.

Answer 35

A person commits a trespass to chattels (tangible personal property) when they intentionally interfere with a P’s right of possession by: i) Dispossessing the P of the chattel; or ii) Using or intermeddling (making physical contact with) with P’s chattel

Answer 36

dispossession: Actual damages, loss of use, and nominal damages. Maybe diminution in value/cost of repair use or intermeddling: If substantial time, actual damages. Maybe diminution in value/cost of repair

Answer 37

A person commits conversion if they intentionally commit an act depriving a plaintiff of possession of chattel or interfering with plaintiff’s use of chattel in a manner so serious as to deprive the plaintiff of the use of the chattel.

Answer 38

full value of converted property at time of tort

Answer 39

A person commits trespass to land when their intentional act causes a physical invasion of the land of another.

Answer 40

Private necessity (can still recover actual damages); public necessity (absolute)

Answer 41

A thing or activity that substantially and unreasonably interferes with another individual’s use and enjoyment of land.

Answer 42

An unreasonable interference with a common right of the general public. Private plaintiff can bring claim only if they suffer different kind of harm than the general public.

Answer 43

a form of strict liability in which one person is liable for the tortious actions of another. It arises when a person has the right, ability, or duty to control the activities of another.

Answer 44

Employer is vicariously liable for employee’s tortious conduct when there is i) an employer-employee relationship AND ii) employee’s tortious conduct occurs within employee’s scope of employment

Answer 45

generally not liable, except: - Force is inherent in work (like a bouncer) - Agent was motivated to benefit employer - Employer authorizes employee to act on his behalf

Answer 46

An independent contractor is not subject to another’s right to control method and means by which they work. Generally, someone who hires is not vicariously liable, except: - Principal retains control over item that is the source of tortious conduct - Abnormally dangerous / inherently dangerous activities - Duties arising out of relationship with specific plaintiff - Duty of land occupier - Duty of employer to maintain safe work environment - Duty to comply with safety statutes - APPARENT AGENCY: person accepts services in reasonable belief that person or person’s employees are rendering the services, and contractor causes harm

Answer 47

No vicarious liability for parents for minor child’s acts, Except: - Child commits tort while acting as parent’s agent - Special statutes when children commit certain acts - Know or should know of need to control child

Answer 48

cause of action against seller of intoxicating beverages when third party is injured

Answer 49

Each of two or more tortfeasors found liable for a single harm is subject to liability to the plaintiff for the entire harm. Plaintiff can seek: i) entire judgment from one D; ii) entire judgment from another D; or iii) portions from various. Paying D can usually seek contribution from others if they pay more than their share, except for INTENTIONAL TORTS

Answer 50

Plaintiff’s contributory negligence completely bars recovery. Doesn’t apply to intentional torts, gross negligence, recklessness. Last clear chance: P can mitigate consequences of P’s own contributory negligence by proving D had last clear chance to avoid injurying P

Answer 51

Damages are calculated, then reduced by proportion that plaintiff’s fault bears to total harm.

Answer 52

Plaintiff’s recovery is barred if they are more at fault than D or D’s combined. Doesn’t apply to intentional torts

Answer 53

Express: parties can contract to disclaim liability with many exceptions Implied: Athletic Events Implied: Unreasonably proceeding in face of known, specific risk is affirmative defense that affects recovery (or bars in a few J’s)