Torts Essay Rule Statements

Question 1

Defamation

Answer 1

Defamation requires a defamatory statement of or concerning the plaintiff, published to a third party who understands its defamatory nature, that damages the plaintiff’s reputation.

Question 2

Defamatory statement

Answer 2

A defamatory statement is one that harms a person’s reputation by diminishing respect, esteem, or goodwill toward the person or deterring others from associating with the person.

Question 3

(defamation) Of or Concerning the P

Answer 3

A reasonable person must believe that the defamatory statement refers to the particular plaintiff.

Question 4

(defamation) Published to a Third Party

Answer 4

The statement must have been intentionally or negligently communicated (published) to a third party who understood the defamatory nature of the statement.

Question 5

Slander damages

Answer 5

Slander is spoken defamation, and unless the statement constitutes slander per se, special damages must be proven. Special damages require the plaintiff to prove that a third party heard the defendant’s defamatory comments and acted adversely to that person. Most often, special damages involve an economic loss to the plaintiff, such as loss of employment or loss of business.

Question 6

Slander Per Se

Answer 6

Under the doctrine of slander per se, a plaintiff alleging slander need not plead and prove special damages if the statement defaming him accuses him of a crime, conduct that reflects on one’s lack of fitness to conduct his business or profession, sexual misconduct, or having a loathsome disease.

Question 7

Matter of Public Concern or Public Figure

Answer 7

Whenever a statement is about a matter of public concern or involves a public figure, the plaintiff must prove falsity and fault.

Question 8

public figure (defamation)

Answer 8

A public figure is one who achieves fame or notoriety (can be general purpose or limited purpose)

Question 9

Fault (public figure)

Answer 9

If plaintiff is a public figure, he must prove actual malice which requires a showing of knowledge that the statement was false, or a reckless disregard as to whether it was false.

Question 10

Fault (private person, private matter)

Answer 10

If the plaintiff is a private figure, then he need only prove negligence regarding the falsity of the statement.

Question 11

Qualified Privilege

Answer 11

Speakers may have a qualified privilege to make a statement if it is in the interest of the publisher, in the interest of the recipient or third party, or affects an important public interest. This privilege may be lost if the speaker acted with malice.

Question 12

Intentional Infliction of Emotional Distress (IIED)

Answer 12

A defendant is subject to liability to the plaintiff for the intentional infliction of emotional distress if the defendant, by extreme and outrageous conduct, intentionally or recklessly causes the plaintiff severe emotional distress. Public figures must also prove publication of a false statement made with actual malice to recover for IIED.

Question 13

IIED Intent

Answer 13

The defendant must intend to cause severe emotional distress or must act with recklessness as to the risk of causing such distress.

Question 14

IIED Extreme and outrageous conduct

Answer 14

Conduct is extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society.

While liability generally does not extend to mere insults, threats, or indignities, a defendant’s abusive language and conduct may be sufficiently “extreme and outrageous” if
- the defendant was in a position of authority or influence over the plaintiff
- P is member of group that has a heightened sensitivity (young children, old)

Question 15

IIED Severe Emotional Distress

Answer 15

If the plaintiff is hypersensitive and experiences severe emotional distress unreasonably, then there is no liability unless the defendant knew of the plaintiff’s heightened sensitivity.

Question 16

False Light

Answer 16

To place one in a false light, the disclosure (i.e., making public facts about the plaintiff) must have attributed to the plaintiff actions that he did not take or views that he does not hold. It must also be highly offensive to a reasonable person. Additionally, most jurisdictions require the plaintiff to prove actual malice.

Question 17

General Damages

Answer 17

General damages are those damages that naturally flow from the injury or harm and aim to place the plaintiff in the same position he was in prior to the tort. A plaintiff is entitled to compensation for loss of physical abilities and emotional distress caused by fear, anxiety, and humiliation.

Question 18

Special Damages

Answer 18

Special damages need be proven and include damages such as lost wages due to the tort.

Question 19

Punitive Damages

Answer 19

Punitive damages serve to punish a defendant who engages in serious misconduct with an improper state of mind, such as malice.

there must be some proportionality between the compensatory and punitive damages

Question 20

Negligence

Answer 20

Negligence requires a showing of a duty, breach, actual and proximate cause, and damages.

Question 21

Duty

Answer 21

Who & standard of care

A duty is owed to all foreseeable plaintiffs. Under the majority rule, a foreseeable plaintiff is one who is in the foreseeable zone of danger. However, under the minority view a defendant owes a duty of care to anyone who suffers injuries as a proximate result of his breach of duty to someone.

Question 22

Standard of care (typical)

Answer 22

The standard of care owed is typically that of a reasonably prudent person under the same or similar circumstances.

Question 23

Negligence Per Se

Answer 23

Standard of care

Alternatively, a statute can set forth the applicable standard of care. For an individual to be held to the standard of care set forth in a statute instead of the RPP standard of care, there must be a statute mandating a specific duty for protecting others.

Additionally, the plaintiff must prove that she is in the class of people the statute is designed to protect and that she suffered the type of injury that the statute protects against.

Question 24

Breach

Answer 24

A breach occurs when the defendant falls below the applicable standard of care.

Question 25

Actual Cause

Answer 25

The defendant’s conduct is the actual cause of a plaintiff’s injuries if the injury would not have occurred but for the conduct.

Question 26

Proximate Cause

Answer 26

In addition to being the actual cause, the defendant’s conduct must also be the proximate cause of the injury. The defendant is liable only for foreseeable harm that is not too remote and is within the risk created by his conduct.

An intervening and superseding act may break the chain of causation. However, negligent intervening acts are usually regarded as foreseeable.

Question 27

cost-benefit analysis

Answer 27

(breach)

In lieu of the RPP standard of care, the modern trend is to apply a cost-benefit analysis, which requires looking at the foreseeable likelihood and severity of the harm and the defendant’s burden (costs and disadvantages) in avoiding the harm.

Question 28

Strict Liability: Abnormally Dangerous Activity

Answer 28

A defendant may be held strictly liable for engaging in an ADA that is the actual and proximate cause of the plaintiff’s harm, provided that the harm results from the risk that made the activity abnormally dangerous in the first place.

An ADA is an activity that (1) creates a foreseeable and highly significant risk of harm even when reasonable care is exercised and (2) is not commonly engaged in by the community.

Question 29

Joint and Several Liability

Answer 29

Under the doctrine of joint and several liability, each of two or more defendants who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm. So long as the entire recovery does not exceed the amount of the judgment, the plaintiff can collect the entire judgment from one defendant, the entire judgment from another defendant, or portions of the judgment from various defendants.

(If P recovers all from a D, D can seek contribution from D2 for D2’s fair share)

Question 30

Strict Products Liability

Answer 30

The seller (manufacturer, retailer, or distributor) of a defective product may be strictly liable in tort for any injuries caused by that product.

To recover, the plaintiff must plead and prove that the product was defective (in manufacture, design, or failure to warn), the defect existed when the product left the defendant’s control, and the defect caused the plaintiff’s injuries when the product was used in an intended or reasonably foreseeable way (i.e., actual and proximate causation).

See commercial seller and proper plaintiff.

Question 31

Commercial Seller (for products liability)

Answer 31

To be subject to strict liability for a defective product, the defendant must be in the business of selling or otherwise distributing products of the type that harmed the plaintiff. Because the seller must be in the business of selling similar products, a casual seller (e.g. an individual car owner who sells his car to his neighbor) is not subject to strict liability.

Question 32

Proper Plaintiff (strict liability)

Answer 32

To bring a strict-liability action, a plaintiff is not required to be in privity of contract with the defendant. Anyone foreseeably injured by a defective product—even a bystander—may bring a strict-liability action.

Question 33

Manufacturing Defect

Answer 33

A product is defective when, at the time of the sale or distribution, it contains a manufacturing defect. A manufacturing defect is a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. The test for the existence of such a defect is whether the product conforms to the defendant’s own specifications.

Question 34

Inadequate Warnings

Answer 34

A product may also be defective as a result of the manufacturer’s failure to provide an adequate warning related to the risks of using the product. A failure-to-warn defect exists if there were foreseeable risks of harm—not obvious to an ordinary user of the product—that could have been reduced or avoided by providing reasonable instructions or warnings. The failure to include the instructions or warnings renders the product not reasonably safe.

Question 35

strict product liability - Contributory and Comparative Negligence

Answer 35

In a contributory-negligence jurisdiction, the plaintiff’s negligence generally is not a defense to a strict-products-liability action when the plaintiff negligently failed to discover the defect or misused the product in a reasonably foreseeable way, but it generally is when the plaintiff’s fault consisted of unreasonably proceeding in the face of a known product defect.

Contributory negligence, however, is no longer a recognized defense to strict products liability in a majority of jurisdictions. In most states, the plaintiff’s own negligence reduces his recovery in a strict-products-liability action in the same manner as in a negligence action.

Question 36

Assumption of the Risk

Answer 36

A plaintiff may be denied recovery if he assumed the risk caused by the defendant’s act. Voluntary and knowing assumption of the risk is a complete bar to recovery in contributory-negligence jurisdictions and in a small number of comparative-fault jurisdictions. Because traditional assumption of the risk has been eliminated in most comparative-fault jurisdictions, in those states, a plaintiff’s assumption of a risk reduces his recovery in proportion to his degree of fault, but it is not a complete bar to recovery.

Question 37

Negligence Products Liability (cause of action)

Answer 37

As with any negligence action, a products-liability action based on negligence requires a showing of duty, breach, actual and proximate causation, and damages.

Question 38

Negligence Products Liability - Duty

Answer 38

A commercial manufacturer, distributor, retailer, or seller of a product owes a duty of reasonable care to any foreseeable plaintiff. Under the majority view, a foreseeable plaintiff is anyone within the zone of danger, including purchasers and users of a product, as well as bystanders. Privity with the defendant is no longer required.

Foreseeable plaintiffs are owed the standard of care of a reasonably prudent manufacturer, distributor, retailer, or seller.

Question 39

Negligence Products Liability - Breach

Answer 39

Breach of duty is shown by negligent conduct of the defendant leading to the supplying of a defective product.

Question 40

Negligence Products Liability - causation

Question 41

Breach of duty is shown by negligent conduct of the defendant leading to the supplying of a defective product.