Torts [Highly Tested Rules]

Question 1

What is sufficient “intent” for purposes of intentional torts?

Answer 1

The intent that is relevant for purposes of intentional torts is the intent to bring about the consequences that are the basis of the tort – the defendant does not need to intend injury
* An actor “intends” the consequences of his conduct if his purpose is to bring about such consequences or he knows with substantial certainty that such consequences will result

Question 2

What satisfies the “causation” requirement for intentional torts?

Answer 2

The result giving rise to liability must have been legally caused by the defendant’s act or something set in motion thereby
* The causation requirement will be satisfied where the defendant’s conduct is a substantial factor in bringing about the injury

Question 3

What is an assault?

Answer 3

Assault is the intentional creation by the defendant of a reasonable apprehension of immediate harmful or offensive contact to the plaintiff’s person

Actual Damages Not Required:
* Nominal damages are recoverable even if actual damages are not proved
* Punitive damages may be recoverable for malicious conduct

Question 4

What is a reasonable apprehension of harmful of offensive contact?

Answer 4

For apprehension to be shown, the plaintiff must have been aware of the threat from the defendant’s act (but need not be aware of the defendant’s identity)
* The apprehension of harmful or offensive contact must be reasonable; courts generally will not protect a plaintiff against exaggerated fears of contact
* Words alone are not enough; words must be coupled with conduct

Question 5

What is intentional infliction of emotional distress (“IIED”)?

Answer 5

A prima facie case for intentional infliction of emotional distress requires a showing of intentional or reckless extreme and outrageous conduct by the defendant that causes the plaintiff to suffer severe emotional distress

“Extreme and Outrageous” Conduct:
Conduct is “extreme and outrageous” if it transcends all bounds of decency tolerated by society
* Conduct that is not normally outrageous may become so if:
(i) it is continuous in nature;
(ii) it is committed by a certain type of defendant (common carriers or innkeepers may be liable even for “gross insults”); OR
(iii) it is directed toward a certain type of plaintiff (e.g., children, elderly persons, someone who is pregnant, hypersensitive adults if their sensitivities are known to the defendant)

Requisite Intent:
Unlike other intentional torts, the “intent” requirement can be satisfied by reckless conduct (i.e., acting in DELIBERATE disregard of a HIGH probability that emotional distress will result)

Actual Damages Required:
Actual damages (severe emotional distress) are required; but proof of physical injury generally is not required

Question 6

When may a third party recover for IIED?

Answer 6

When the defendant’s intentional extreme and outrageous conduct is directed at a third party (not plaintiff), but the plaintiff suffers severe emotional distress as a result, the plaintiff may recover for intentional infliction of emotional distress if:
1. the plaintiff was present at the time;
2. the distress resulted in bodily harm to the plaintiff, or the plaintiff was a close relative of the third party; AND
3. the defendant knew these facts

Question 7

What are defenses to intentional torts?

Answer 7

Defenses to intentional torts include:
1. Consent
2. Self-Defense
3. Defense of Others
4. Defense of Property
5. Shopkeeper’s Privilege (Defense to False Imprisonment)
6. Privilege to Arrest (Defense to False Imprisonment)
7. Public Necessity
8. Private Necessity

Question 8

What is the defense of consent?

Answer 8

A defendant is not liable for an intentional tort if the plaintiff expressly or impliedly consented to the defendant’s tortious act
* A person must have capacity to consent
* The defendant may be liable if they exceed the scope of consent by committing a more intrusive invasion invasion or invading a different interest

Question 9

What is express consent?

Answer 9

Express (actual) consent is given when the plaintiff expressly communicates a willingness to submit to defendant’s conduct

Question 10

Is express consent given by mistake valid?

Answer 10

Consent given by mistake is still valid UNLESS the defendant caused the mistake or knew of and took advantage of the mistake

Question 11

Is express consent induced by fraud valid?

Answer 11

Consent induced by fraud is NOT valid if the fraud goes to an essential matter
* If the fraud goes to a collateral matter, the consent remains VALID

Question 12

Is express consent obtained by duress valid?

Answer 12

Consent obtained by duress is NOT valid
* However, threats of future action or future economic deprivation are NOT sufficient to invalidate express consent

Question 13

What is implied consent?

Answer 13

Implied consent refers to apparent consent or consent implied by law
* Apparent consent is that which a reasonable person would infer from custom and usage or the plaintiff’s conduct
* Consent may be implied by law where action is necessary to save a person’s life or some other important interest in person or property

Question 14

What is self-defense?

Answer 14

When a person has a reasonable belief they are being, or about to be, attacked, they may use such force as is reasonably necessary to protect against the potential injury

Duty to Retreat:
Under the majority view, there is NO duty to retreat
* A growing modern trend imposes a duty to retreat before using DEADLY force if it can be done safely, but NOT if the actor is in his own home

When Defense Is Available:
Self-defense is only available to prevent the commission of a tort – one CANNOT use force in retaliation (i.e., after a tort has been committed)
* A reasonable mistake as to the existence of the danger is allowed

How Much Force May Be Used:
One may use only that force that reasonably appears to be necessary to prevent the harm
* Deadly force can be used only where the actor reasonably believes he is in danger of serious bodily injury

Question 15

What is defense of others?

Answer 15

A person may use force reasonably necessary to protect a third party against injury when they reasonably believe that the third party would have the right of self-defense

When Defense Is Available:
* A reasonable mistake as to whether the third party being aided is being attacked or has a right to defend themselves is allowed

How Much Force May Be Used:
* The defender may use as much force as he could have used in self-defense if the injury were threatened to him

Question 16

What is defense of property?

Answer 16

A person may use reasonable force to prevent the commission of a tort against their real or personal property, but a request to desist or leave must first be made unless it clearly would be futile
* Defense does NOT apply once tort has been committed, UNLESS in hot pursuit of another who has tortiously dispossessed the owner of their chattels

When Defense Is Available:
* A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required
* Defense NOT available against someone with a privilege (necessity)

How Much Force May Be Used:
* Reasonable force may be used
* Deadly force may NOT be used unless the invasion of property also entails a serious threat of death or serious bodily harm

Question 17

What is the shopkeeper’s privilege?

Answer 17

A shopkeeper has a privilege to detain a suspected shoplifter for investigation if:
1. they have a reasonable belief a theft is being committed
2. the detention is conducted in a reasonable manner (only nondeadly force can be used)
3. the detention is for a reasonable period of time and only for the purpose of making an investigation

NOTE: The shopkeeper’s privilege is a defense to false imprisonment

Question 18

What is necessity?

Answer 18

A person may interfere with the real or personal property of another when:
1. it is reasonably and apparently necessary in an emergency to avoid injury from a natural or other force; AND
2. the threatened injury is substantially more serious than the invasion that is undertaken to avert it

Public Necessity: Applies when the threatened harm was to the community at large or to many people
* No compensation is owed for property damage

Private Necessity: Applies when the threatened harm is to a limited number of people
* Defendant must pay for any property damage caused

Question 19

Negligence

To whom is a duty owed?

Answer 19

A general duty to act as a reasonably prudent person is owed to all foreseeable plaintiffs
* When the defendant’s conduct creates an unreasonable risk of harm to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff
* Under the majority (Cardozo) view, a person must be within the zone of danger created by the defendant’s activity to be owed a duty of care
* Under the minority (Andrews) view, the duty of care is owed to anyone

Question 20

Negligence

What is the general standard of care?

Answer 20

The general standard of care requires the defendant to act as a reasonably prudent person under the same or similar circumstances, unless a special standard of care applies
* A reasonably prudent person has the following characteristics, measured by an objective standard:
* Average mental ability (individual mental disabilities are not considered)
* If physical characteristics are relevant, same physical characteristics as the defendant
* Same knowledge as average member of the community
* Although the reasonably prudent person standard sets a minimum standard of care, a defendant who has knowledge, skill or experience superior to that of an average person is required to use that superior knowledge, skill or experience

Question 21

Negligence

What is the standard of care for medical doctors?

Answer 21

A doctor owes a duty to possess and exercise the knowledge and skill of an average qualified physician
* The majority of courts apply a national standard of care (rather than a local standard)

Duty to Disclose Risks of Treatment
* A doctor has a duty to disclose the risks of a proposed course of treatment to enable a patient to give informed consent
* A doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent upon learning of the risk

Question 22

Negligence

What is the standard of care for professionals?

Answer 22

A person who is a professional or has special skills is required to possess and exercise the knowledge and skill of a member of that person’s profession or occupation in good standing

Question 23

Negligence

What is the standard of care for children?

Answer 23

A child is required to conform to the standard of care of a child of similar age, intelligence and experience
* This standard entails a subjective evaluation of these factors
* A child under five likely lacks the capacity to be negligent

EXCEPTION: Children Engaged in Adult Activities
* A child engaged in a potentially dangerous activity that is normally one only engaged in by adults (e.g., driving a boat, flying an airplane) will most likely be required to conform to the same standard of care as an adult engaged in such activity

Question 24

Negligence

What is the general rule regarding a land owner’s standard of care?

Answer 24

Under the traditional rule followed in many states, the duty that a land owner/possessor owes to a plaintiff on the premises varies depending on the plaintiff’s status as an trespasser, licensee or invitee

Question 25

Negligence

What duty does a land owner owe to trespassers?

Answer 25

The general rule is that a person who comes onto his land without permission or privilege is a trespasser, to whom the land owner owes no duty
* However, if the land owner knows or reasonably should know of the presence of trespassers regularly entering onto the property, the entrant may be an “anticipated trespasser,” to whom the land owner owes a duty to warn of or make safe artificial conditions that are concealed, carry the risk of death or serious bodily injury and are known to the land owner in advance

Question 26

Negligence

What is the attractive nuisance doctrine?

Answer 26

Under the “attractive nuisance” doctrine, a court will impose upon a land owner the duty to exercise reasonable care to avoid a foreseeable risk of harm to child trespassers caused by dangerous artificial conditions on his property

Question 27

Negligence

What must be shown to establish an attractive nuisance?

Answer 27

To establish an attractive nuisance, the plaintiff must show:
1. there is a dangerous artificial condition on the land of which the land owner is or should be aware;
2. the land owner knows or should know that children frequent the vicinity of this dangerous condition;
3. the condition is likely to cause injury; that is, it is dangerous because of the child’s inability to appreciate the risk); AND
4. the expense of remedying the situation is slight compared with the magnitude of the risk

Question 28

Negligence

What is a licensee?

Answer 28

A licensee is one who enters onto land with the land owner’s permission for his own purpose or business, rather than for the land owner’s benefit
* Includes social guests

Question 29

Negligence

What duty does a land owner owe to licensees?

Answer 29

As to licensees, the land owner owes a duty to warn of or make safe dangerous artificial or natural conditions that are concealed and known to the land owner in advance

Question 30

Negligence

What is an invitee?

Answer 30

An invitee is one who enters onto land in response to an invitation by the land owner, meaning that they enter for a purpose connected with the business of the land owner or enter as a member of the public for a purpose for which the land is held open to the public
* An invitee will lose invitee status if they exceed the scope of the invitation (e.g., entering areas marked “keep out”)

Question 31

Negligence

What duty does a land owner owe to invitees?

Answer 31

As to invitees, the land owner owes a duty to warn of or make safe dangerous artificial or natural conditions that are concealed and known to the land owner in advance or could have been discovered by a reasonable inspection

Question 32

Negligence

What is a land owner’s duty of care with respect to active operations on their property?

Answer 32

A land owner has a duty to exercise reasonable care in the conduct of “active operations” on their property
* This duty is owed only to anticipated trespassers, licensees, and invitees

Question 33

Negligence

When does one have an affirmative duty to act?

Answer 33

As a general matter, no legal duty is imposed on any person to affirmatively act for the benefit of others

EXCEPTIONS:
1. Assumption of Duty by Acting: One who gratuitously acts for the benefit of another, although under no duty to do so in the first instance, assumes a duty to act like an ordinary, prudent, reasonable person and continue the assistance
2. Peril Due to Defendant’s Conduct: One whose conduct (whether negligent or innocent) places another in a position of peril is under a duty to use reasonable care to aid or assist that person
3. Common Carriers: Common carriers are under a duty to use reasonable care to aid or assist passengers
4. Innkeepers: Innkeepers, restaurateurs, shopkeepers, and others who gather the public for profit have a duty to use reasonable care to aid or assist their patrons and to prevent injury to them from third persons
5. Special Relationship: A special relationship between the parties (e.g., parent-child) may give rise to an affirmative duty to act

Question 34

Negligence

What is negligence per se?

Answer 34

Under the doctrine of “negligence per se,” a defendant’s unexcused violation of a statutory standard of care establishes the first two elements of a prima facie case of negligence–a conclusive presumption of duty and breach of duty
* In order to establish that a statutory standard of care applies for purposes of demonstrating negligence per se, the plaintiff must show (1) the statute was designed to prevent the type of harm suffered by the plaintiff and (2) the plaintiff is within the class of persons intended to be protected by the statute
* In some instances, violation of a statute may be excused where (1) compliance would cause more danger than violation or (2) compliance would be beyond defendant’s control

Question 35

Negligence

What is res ipsa loquitor?

Answer 35

The circumstantial evidence doctrine of “res ipsa loquitur” (“the thing speaks for itself”) deals with those situations where the fact that a particular injury occurred may itself establish or tends to establish a breach of duty owed

Res ipsa loquitur requires the plaintiff to show that:
1. the accident causing the injury is a type that would not normally occur unless someone was negligent; AND
2. the negligence is probably attributable to the defendant (this can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant)

Question 36

Negligence

What is actual causation?

Answer 36

An act or omission is an actual (factual) cause of an injury when the injury would not have occurred “but for” the act or omission
* This test applies where several acts (each insufficient to cause the injury alone) combine to cause the injury
* A defendant can refute this by showing that the plaintiff would have still been injured “even if” the defendant’s act or omission did not occur

Question 37

Negligence

What is the “substantial factor” test?

Answer 37

Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, the defendant’s conduct is the actual (factual) cause if it was a substantial factor in causing the injury
* This situation is referred to as one involving “multiple sufficient causes”

Question 38

Negligence

What is the “unascertainable causes” approach?

Answer 38

The “unascertainable causes” approach applies when two or more persons have been negligent, but it is unclear which person’s negligence is the actual cause of the plaintiff’s injury
* Under the unascertainable causes approach, the plaintiff must first prove that injury has been caused to him by one of the multiple negligent defendants, with uncertainty as to which one
* The burden of proof then shifts to the defendants, and each must prove that his negligence is NOT the actual cause of the plaintiff’s injury

Question 39

Negligence

What is proximate causation?

Answer 39

The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of, and within the increased risk created by, his conduct

Question 40

Negligence

What is an intervening force?

Answer 40

An intervening force is one that comes into motion after the defendant’s negligent act and combines with it to cause the plaintiff’s injury
* If the defendant’s negligence created a foreseeable risk that this intervening force would injure the plaintiff, the defendant is liable for the injury caused

Common Foreseeable Intervening Forces:
The following intervening forces that are normal responses or reactions to a defendant’s negligent act are almost always foreseeable:
* Subsequent medical malpractice in treating the plaintiff’s injuries
* Negligence of rescuers
* Protective or reactive forces to the defendant’s conduct, including efforts to protect a person or property
* Disease or accident substantially caused by the original injury

Question 41

Negligence

What is a supervening force?

Answer 41

A supervening force is an intervening force that produces unforeseeable results and breaks the causal connection between the defendant’s initial negligent act and the plaintiff’s ultimate injury, thus relieving the defendant of liability

Question 42

Negligence

What does the “damage” element of a negligence claim require?

Answer 42

Damage is an essential element of a prima facie case for negligence, which means the **plaintiff must prove he suffered actual damage to person or property

Recoverable Damages:
* Personal Injury: The plaintiff is to be compensated for all their damages (past, present and prospective), both economic damages (such as medical expenses and lost earnings) and noneconomic damages (such as pain and suffering and emotional distress)
* Property Damage: The measure of damages for property damage is the reasonable cost of repair, or, if the property has been substantially or completely destroyed, its fair market value at the time of the accident
> Emotional distress damages are generally NOT recoverable for property damage
* Punitive Damages: Punitive damages are generally recoverable ONLY IF the defendant’s conduct was “wanton and willful,” reckless or malicious

Duty to Mitigate:
The plaintiff has a duty to take reasonable steps to mitigate damages

Question 43

Negligence

What is the “eggshell-skill” plaintiff rule?

Answer 43

The “eggshell-skull” plaintiff rule provides that “a tortfeasor takes his victim as he finds them”
* This means the defendant is liable for all damages actually suffered by the plaintiff as a result of his negligence, even if the extent or severity of the damages was unforeseeable

Question 44

Negligence

What is contributory negligence?

Answer 44

Contributory negligence is negligence on the part of the plaintiff that contributes to the plaintiff’s injuries
* The standard of care for contributory negligence is the reasonably prudent person standard
* At common law, contributory negligence completely barred the plaintiff’s right to recovery; now nearly all jurisdictions have adopted a comparative negligence system

EXCEPTION: “Last Clear Chance” Doctrine
The “last clear chance” doctrine permits the plaintiff to recover despite his own contributory negligence
* Under this doctrine, the party with the last clear chance to avoid an accident who fails to do so is liable for negligence
* Essentially the plaintiff’s rebuttal to the defense of contributory negligence

Question 45

Negligence

What is comparative negligence?

Answer 45

In comparative negligence jurisdictions, the plaintiff’s contributory negligence is not a complete bar to recovery; rather, the trier of fact weighs the plaintiff’s negligence and reduces damages accordingly (e.g., if the plaintiff is 10% at fault, their damages are reduced by 10%)
* In a partial comparative negligence jurisdiction (MAJORITY), the plaintiff is still barred from recovery if his contributory negligence passes a certain threshold
* Some states bar recovery if the plaintiff’s negligence was greater than the defendant’s (i.e., plaintiff cannot recover if more than 50% at fault)
* Other states bar recovery if the plaintiff’s negligence was at least as great as the defendant’s (i.e., plaintiff cannot recover if 50% or more at fault)
* In a pure comparative negligence jurisdiction (MINORITY), the plaintiff may recover some damages no matter how much at fault he is

Question 46

Negligence

What is assumption of the risk?

Answer 46

The plaintiff may be denied recovery if he expressly or impliedly assumed the risk of any damage caused by the defendant’s acts
* To have assumed risk, either expressly or impliedly, the plaintiff must have known of the risk and voluntarily proceeded in the face of the risk
* The plaintiff’s knowledge may be implied where the risk is one that the average person would clearly appreciate
* However, assumption of a risk is NOT voluntary when there is no available alternative

Question 47

What is negligent infliction of emotional distress (“NIED”)?

Answer 47

The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff

General Rule
To recover on a claim for negligent infliction of emotional distress, the plaintiff typically must:
1. be within the “zone of danger,” meaning sufficiently close to the defendant such that they are subject to a high risk of a physical impact; AND
2. suffer emotional distress caused by defendant’s conduct that manifests in physical symptoms

Question 48

What is a “bystander” case of NIED?

Answer 48

A bystander who is outside the “zone of danger” but sees the defendant negligently injure another person can recover for their own emotional distress if:
1. the bystander and the victim are closely related; AND
2. the bystander was present at the scene of the injury and personally observed or perceived the event

Question 49

What is a “special relationship” case of NIED?

Answer 49

The defendant may be liable for directly causing the plaintiff severe emotional distress when a duty arises from the relationship between the plaintiff and defendant (typically commercial in nature), such that the defendant’s negligence has great potential to cause emotional distress (e.g., doctor’s misdiagnosis of terminal illness, mortuary’s negligent cremation of deceased contrary to family instructions)

Question 50

What are the elements of a prima facie case for any strict liability tort?

Answer 50

To establish a prima facie case for any strict liability tort, the plaintiff must prove the following elements:
1. the nature of the defendant’s activity imposes an absolute duty to make safe;
2. the dangerous aspect of the activity is the actual and proximate cause of the plaintiff’s injury; AND
3. the plaintiff suffered damage to person or property as a result

Question 51

When is an owner strictly liable for injuries caused by their animal?

Answer 51

Domestic Animals
An owner is not strictly liable for injuries caused by a domestic animal (including farm animals) unless they have knowledge of the particular animal’s dangerous propensities that are not common to the species
* But an owner is strictly liable for reasonably foreseeable damage done by a trespass of his animal

Wild Animals
An owner is strictly liable to licensees and invitees for injuries caused by wild animals (even those kept as pets)
* To recover for injuries from a wild animal, a trespasser must prove the owner’s negligence

Question 52

When is a defendant strictly liable for abnormally dangerous activity?

Answer 52

A defendant is strictly liable for damages suffered by a plaintiff that were actually and proximately caused by abnormally dangeous activity engaged in by the defendant

Courts generally impose the following two requirements for finding an activity to be abnormally dangerous:
1. the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; AND
2. the activity is not a matter of common usage in the community

NOTE: As with negligence, the defendant’s liability extends only to foreseeable plaintiffs, meaning persons to whom a reasonable person would have foreseen a risk of harm under the circumstances
* Additionally, the harm must result from the kind of danger to be anticipated from the dangerous activity–i.e., the harm must flow from the “normally dangerous propensity” of the activity involved

Question 53

What are defenses to strict liability?

Answer 53

CONTRIBUTORY NEGLIGENCE STATES:
* Unknowing Contributory Negligence: In contributory negligence states, the plaintiff’s contributory negligence is NO DEFENSE if the plaintiff simply failed to realize or guard against the danger
* Knowing Contributory Negligence: The plaintiff’s contributory negligence IS A DEFENSE if the plaintiff knew of the danger and his unreasonable conduct was the very cause of the harm from the wild animal or abnormally dangerous activity
* Assumption of the Risk: In contributory negligence states, assumption of the risk is a good defense to strict liability torts

COMPARATIVE NEGLIGENCE STATES:
* Many comparative negligence states apply the same comparative negligence rules to strict liability torts that they apply to negligence cases

Question 54

What are the theories of products liability?

Answer 54

Products liability refers to the liability of a supplier of a defective product to someone injured by the product

There are five theories of liability that a plaintiff may use:
1. Intent
2. Negligence
3. Implied warranties of merchantability and fitness for a particular purpose
4. Representation (express warranty and misrepresentation)
5. Strict liability

Question 55

What are product defects (general rule)?

Answer 55

For liability to attach under any products liability theory, the plaintiff must show that the product was “defective” when it left the defendant’s control

Question 56

What is a manufacturing defect?

Answer 56

A manufacturing defect exists when a product emerges from manufacturing different from and more dangerous than the products that were made properly
* Consumer Expectation Test: Defendant will be liable if plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect (defendant must anticipate reasonable misuse)

Question 57

What is a design defect?

Answer 57

A design defect exists when all the products of a line are made identically according to manufacturing specifications but have dangerous propensities because of their physical features or packaging
* Feasible Alternative Test: To establish a design defect, the plaintiff must show that there is a feasible alternative–that a less dangerous modification or alternative to the product was economically feasible
* Government Safety Standards: A defect is established if the product does not comply with government safety standards, but compliance with government safety standards does not conclusively establish the product is not defective

Question 58

What factors are considered under the “feasible alternative” test?

Answer 58

Factors that a court will consider under the feasible alternative test include:
1. usefulness and desirability of the product
2. availability of safer alternative products
3. dangers of the product that have been identified by the time of trial
4. likelihood and probable seriousness of the injury
5. obviousness of the danger
6. normal public expectation of danger
7. avoidability of injury by care in the use of the product
8. feasibility of eliminating the danger without seriously impacting the product’s utility or price

Question 59

What is an information defect?

Answer 59

An information defect exists when a manufacturer fails to include adequate instructions or clear and complete warnings of any dangers that may not be apparent to users
* Plaintiff can rely on a presumption that an adequate warning would have been read and heeded

Question 60

What are the elements of a prima facie case for strict products liability?

Answer 60

To establish a prima facie case in products liability based on strict liability, the plaintiff must prove:
1. the defendant is a commercial supplier (i.e., a manufacturer, assembler, wholesaler or retailer);
2. the defendant produced or sold a product that was defective when it left the defendant’s control (the product was not significantly altered since it left the defendant’s control);
3. the defective product was the actual and proximate cause of the plaintiff’s injury; AND
4. the plaintiff suffered damages to person or property

Who Can Sue: Any foreseeable plaintiff (users, consumers or bystanders)

Damages Recoverable: Personal injury and property damages are recoverable, but a plaintiff may NOT recover solely for ECONOMIC LOSS

Effect of Disclaimer: Disclaimers of liability are ineffective if personal injury or property damage has occurred

Question 61

What are defenses to strict products liability?

Answer 61

Contributory Negligence
Contributory negligence may be a defense EXCEPT where:
1. plaintiff failed to discover product defect or guard against its existence; OR
2. plaintiff’s misuse of product was reasonably foreseeable

Comparative Negligence
Many comparative negligence states apply their comparative negligence rules to strict products liability actions

Assumption of the Risk
Valid defense in strict products liability actions

Question 62

What are the elements of a prima facie case for negligence in a products liability case?

Answer 62

To establish a prima facie case for negligence in products liability case, the plaintiff must prove:
1. Duty: Anyone who supplies a product to another owes a duty of care (including a casual seller)
2. Breach: To prove breach, the plaintiff must show (i) negligent conduct by the defendant (i.e., conduct falling below the standard of care expected of a reasonable person under similar circumstances) leading to (ii) the supplying of a “defective product” by the defendant
3. Actual Causation: The plaintiff would not have been injured “but for” the defendant negligently supplying the defective product to the plaintiff
4. Proximate Causation: The plaintiff’s injury was the normal incident of and within the increased risk created by the defendant’s negligence
5. Damage: The plaintiff suffered damages to person or property

Who Can Sue: Any foreseeable plaintiff (users, consumers or bystanders)

Damages Recoverable: Personal injury and property damages are recoverable; no recovery solely for economic loss

Effect of Disclaimer: Disclaimers of liability are ineffective if personal injury or property damage has occurred

Defenses: Ordinary negligence defenses apply

Question 63

What are the elements of a prima facie case for intentional misrepresentation (fraud)?

Answer 63

To establish a prima facie case of intentional misrepresentation, the plaintiff must prove:
1. the defendant made a false representation of a MATERIAL past or present fact;
2. the defendant made the representation with knowledge of its falsity, or reckless disregard as to its truth or falsity;
3. the defendant intended to induce the plaintiff (or class of persons to which plaintiff belongs) to act or refrain from acting in reliance on the misrepresentation;
4. the plaintiff actually and justifiably relied on the misrepresentation; AND
5. the plaintiff suffered actual pecuniary loss as a result of his reliance on the misrepresentation

Question 64

When can an omission give rise to an intentional misrepresentation claim?

Answer 64

No General Duty to Disclose Material Fact
There is no general duty to disclose a material fact unless the defendant:
1. stands in a fiduciary relationship to the plaintiff that would call for a duty of disclosure;
2. is selling real property and knows that the plaintiff is unaware of, and cannot reasonably discover, material information about the transaction; OR
3. has spoken and his utterance deceives the plaintiff, in which case the defendant is under a duty to inform the plaintiff of the truth

Misrepresentation by Active Concealment
Where a person actively conceals a material fact, she is under a duty to disclose such fact; failure to do so satisfies the “misrepresentation” element of a prima facie case of intentional misrepresentation

Question 65

What are the elements of a prima facie case for negligent misrepresentation?

Answer 65

To establish a prima facie case of negligent misrepresentation, the plaintiff must prove:
1. the defendant made a false representation of a MATERIAL past or present fact in a business or professional capacity;
2. the defendant breached a duty owed to the plaintiff;
3. the plaintiff actually and justifiably relied on the misrepresentation; AND
5. the plaintiff suffered actual pecuniary loss as a result of his reliance on the misrepresentation

Question 66

What is a private nuisance?

Answer 66

A private nuisance is conduct that substantially and unreasonably interferes with another private individual’s use or enjoyment of property he has a right to possess
* Interference is “substantial” when it is offensive, inconvenient, or annoying to the average person in the community, rather than the result of plaintiff’s hypersensitivity or specialized use of property
* Interference is “unreasonable” when the severity of the inflicted injury outweighs the utility of the defendant’s conduct
* In balancing these respective interests, courts take into account that every person is entitled to use his own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courses of conduct available to the defendant

Question 67

What is a public nuisance?

Answer 67

A public nuisance is conduct that unreasonably interferes with the health, safety, or property rights of a great number of people or the public at large
* A private party generally cannot recover for a public nuisance unless he has suffered some unique damage not suffered by the public at large

Question 68

What are defenses to nuisance torts?

Answer 68

Defenses to nuisance torts include:
1. Legislative Authority: Conduct consistent with a zoning ordinance or permit is relevant but not conclusive evidence that the conduct is not a nuisance
2. Conduct of Others: No one actor is liable for all the damage caused by the concurrence of his acts and the conduct of others
3. Contributory Negligence: Contributory negligence is generally not a defense unless the plaintiff’s nuisance action is based on a negligence theory
4. “Coming to the Nuisance”: Generally not a bar to a nuisance action, unless the plaintiff “came to the nuisance” for the sole purpose of bringing a harassing lawsuit

Question 69

What remedies are available for a nuisance tort?

Answer 69

Remedies available for a nuisance tort include:
1. Damages: For a private nuisance, or a public nuisance where the plaintiff has suffered some unique damage, the usual remedy is money damages
2. Injuctive Relief: Where the legal remedy of damages is unavailable or inadequate, injuctive relief may be granted; courts will balance the parties’ relative hardships unless the defendant’s conduct was willful
3. Abatement by Self-Help: In the case of a private nuisance, self-help abatement is available after notice to the defendant and their refusal to act; only necessary force may be used
> Only one who has suffered some unique damage has a similar privilege to abate a public nuisance by self-help; in the absence of such unique damage, only a public authority may abate or seek to enjoin the nuisance

Question 70

What are survival acts?

Answer 70

At common law, a tort action abated at the death of either the tortfeasor or the victim; however, modernly, most states have adopted “survival acts” that allow a deceased tort victim’s cause of action to survive to permit recovery of all damages from the time of injury to the time of death
* In the majority of states, these acts apply to both property and personal injury torts
* However, torts that invade an intangible personal interest (e.g., defamation, malicious prosecution, etc.) typically still expire upon the victim’s death

Question 71

What is a wrongful death act?

Answer 71

Wrongful death acts grant recovery for pecuniary injury resulting to a deceased tort victim’s surviving spouse and next of kin
* Most wrongful death statutes allow recovery for loss of support and loss of companionship, but not for the decedent’s pain and suffering (which are instead recoverable under a survival action)
* However, recovery for wrongful death is allowed only to the extent that the deceased victim could have recovered in an action had they lived; thus, recovery is subject to all defenses the defendant could have raised against the deceased victim

Question 72

Defamation

What are the elements of a prima facie case for defamation?

Answer 72

To establish a prima facie case for defamation, the plaintiff must prove:
1. the defendant made a statement of fact about the plaintiff that tends to adversely affect one’s reputation (e.g., by impeaching one’s honesty, integrity, virtue, sanity, etc.);
2. a reasonable reader, listener or viewer would understand that the defamatory statement refers to the plaintiff;
3. the defamatory statement has been communicated to a third person who understood it;
4. falsity of the statement;
5. fault on the part of the defendant; AND
6. the plaintiff suffered damages as a result of the defamatory statement

Question 73

Defamation

What is libel?

Answer 73

Libel is a defamatory statement that is embodied in writing or some other permanent form (e.g., radio or television recording)
* General damages intended to compensate the plaintiff for their general reputational injury are presumed
* The plaintiff does NOT need to prove she suffered pecuniary loss as a result of the defamation (i.e., special damages)

Question 74

Defamation

What is slander?

Answer 74

Slander is a spoken defamatory statement
* Injury to reputation is NOT presumed; thus, the plaintiff typically must prove special damages (a pecuniary loss suffered), UNLESS the spoken defamatory falls within one of the “slander per se” categories

Question 75

Defamation

What is slander per se?

Answer 75

Slander per se is a spoken defamatory statement that:
1. adversely reflects on the plaintiff’s abilities in his business, trade, or profession;
2. the plaintiff is or was guilty of a crime involving “moral turpitude”;
3. the plaintiff has engaged in serious sexual misconduct; OR
4. the plaintiff is presently suffering from a loathsome and communicable disease (historically limited to venereal disease and leprosy)

Question 76

Defamation

What is the “fault” requirement of a defamation claim?

Answer 76

Supreme Court decisions interpreting the First Amendment Freedom of Speech Clause impose a constitutional “fault” requirement in defamation cases involving public officials, public figures, or matters of public concern

Public Officials–Actual Malice Required:
To establish a prima facie case for defamation, a public official must prove the defamatory statement was made with “actual malice”–knowledge that the statement was false, or reckless disregard as to its truth or falsity

Public Figures–Actual Malice Required:
Actual malice must also be proved if the plaintiff is a public figure, which is defined as a person who has:
1. assumed a role of prominence in society;
2. achieved pervasive fame and notoriety; OR
3. assumed a central role in a particular public controversy in an effort to influence its outcome

Private Figures Suing on Matter of Public Concern:
If the plaintiff is a private figure and the defamatory statement involves a matter of public concern, the plaintiff can only recover actual damages if the plaintiff only establishes negligence on the part of the defendant; to recover punitive damages or presumed damages, the plaintiff must prove the defamatory statement was made with actual malice
* A matter of “public concern” is one that is important to society or democracy, determined on a case-by-case basis based on the content, form and context of the publication

Question 77

Defamation

When does a defendant have an absolute privilege?

Answer 77

An absolute privilege extends to:
1. communications between spouses;
2. remarks made during judicial proceedings
3. remarks made by legislators in their official capacity during legislative proceedings; and
4. remarks made in “compelled” broadcasts or publications

Question 78

Defamation

When does a defendant have a qualified privilege?

Answer 78

There is a qualified privilege for:
1. reports of public hearings or meetings;
2. statements made to those who are to take official action of some kind;
3. a critique of public interest;
4. statements made by a defendant to defend her own actions, property or reputation;
5. statements when the recipient has an interest in the information and it is reasonable for the defendant to make the publication (i.e., she is not a mere intermeddler); and
6. statements when there is a common interest between the publisher and the recipient

NOTE: The defendant bears the burden of proving a qualified privilege exists

Question 79

Defamation

What are limitations on a qualified privilege?

Answer 79

A qualified privilege exists only if exercised in a reasonable manner and for a proper purpose, and will be lost if the statement was not within the scope of the privilege or made with actual malice