Torts Essay Review

Question 1

When will sovereign immunity apply in a torts action

Answer 1

Ca has waived this unless the acts are discretionary political or economic policy decisions performed at the operational level of government

Question 2

what is the vicarious liability of an employer for acts of their employee called?

Answer 2

respondeat superior

Question 3

strict liability elements

Answer 3

(1) D is a commercial supplier
(2) D produced or sold a defective product (was defective when it left their control)
(3) defective product was actual and proximate cause of P’s injury
(4) p suffered damages to person or property

Question 4

products liability based on negligence elements

Answer 4

(1) legal duty
(2) breach due to negligent conduct that lead to the supply of a defective product
(3) the breach was the actual and proximate cause of P’s injury
(4) damage to the P’s person or property

Question 5

Implied warranty of merchantability

Answer 5

goods are of average quality and are generally fit for the average and ordinary purposes of the product

Question 6

fitness for a particular purpose

Answer 6

arises when the seller knows that the buyer is buying the goods for a particular purpose and is relying on the seller’s skill and judgement in selecting the goods

Question 7

Defamation

Answer 7

(1) statement
(2) about the P
(3) publication to a 3rd person
(4) falsity
(5) fault (negligence for private figure; actual malice for public)
(6) damage to P’s reputation

Question 8

slander; what are slander damages?

Answer 8

spoken defamation; not presumed, must allege special damages or prove pecuniary loss

Question 9

qualifed priviledge

Answer 9

defense to defamation - one may disparage another’s acts in the course of a critique of matters of public interest / or when recipient has a legitimate interest in the information

***but if privilege is abused, loses it (not within scope / made with malice)

Question 10

False light

Answer 10

(1) publication of facts that put the P in a false light in the public eye
(2) would be highly offensive to a reasonable person

*If public interest involved, requires actual malice

Question 11

Intentional infliction of emotional distress

Answer 11

(1) extreme and outrageous conduct
(2) performed with intent or recklessness
(3) to cause P emotional distress
(4) causation
(5) damages (emotional distress must be severe)

Question 12

false imprisonment

Answer 12

(1) act or omisison by D
(2) that confines P to a bounded area
(3) intent to confine
(4) damages

Question 13

Conversion

Answer 13

(1) such serious interference with a P’s right of possession in a chattel that warrants the D pay the full vbalue of the chattel
(2) intent to interfere with P’s chattel
(3) causation

Question 14

what makes an activity abnormally dangerous

Answer 14

(1) must create a foreseeable risk of serious harm even when reasonable care is exercised
(2) activity is not common in the community

Question 15

strict liability elements when activity is abnormally dangerous

Answer 15

(1) nature of D’s activity imposes duty to make it safe
(2) dangerous nature of activity is the actual and proximate cause of P’s injury
(3) plaintiff suffered damage

Question 16

comparitive negligence - partial

Answer 16

plaintiff can’t recover if they were over 50% negligent

Question 17

comparative negligence - pure

Answer 17

P may recover no matter the percentage of their fault

Question 18

affirmative duty to act

Answer 18

(1) generally no legal duty to affirmatively help others
(2) but if your conduct puts another in peril, you have a duty to use reasonable care to aid or assist the person
(3) additionally, those who invite the public to gather for profit have a duty to use reasonable care to aid or assist their patrons

Question 19

strict liability - domestic animals? wild animals kept as pets?

Answer 19

No, unless owner knew of dangerous propensities; yes, to an invitee or licensee

Question 20

What must defamatory statement be to be actionable, generally?

Answer 20

(1) a statement of fact
(2) statement of opinion may be actionable if it appears to be based on specific facts that would be defamation if expressed
(3) the broader the language used, the less likely that it will be reasonably interpreted as a statement of fact or an opinion

Question 21

how does court determine if defamatory statement is of public or private concern?

Answer 21

Looks to
(1) content
(2) form
(3) context
of the publication

Question 22

when are special damages not necessary to plead in defamation?

Answer 22

all libel and for slander that falls into a slander per se category, no special damages argument required

Question 23

child standard of care

Answer 23

normally, of a child of like age, intelligence and experience

*treated as adult if engaging in adult activity