Torts II

Question 1

Duty - Rule Proof

Answer 1

1) Prove the D owed a duty of reasonable care
2) D failed to do so
3) Breach was the cause of harm
4) Proximate cause
5) Physical harm

Question 2

Duty of reasonable care under Cardozo

Answer 2

You do not owe a duty of reasonable care unless foreseeable that the P might get hurt

Question 3

Duty of reasonable care under Andrews

Answer 3

If your conduct created a risk to anybody then you owe a duty of reasonable care to whoever actually gets hurt

Question 4

Duty of reasonable care for NO ACTION general rule

Answer 4

There is no duty to act if you did not create the danger. Unless under the exception.

Question 5

No act duty exceptions

Answer 5

• Undertaking to assist
• D is in full control of instrumentalities
• Promises
• Special Rel.
• Statutory provisions imposing obligations to protect another
• Duty to third person due to spec. rel with person posing the risk
• Duty to third parties based on undertaking to another
• Duty to another based on taking charge of the other
• D conduct or instrumentality innocently creates peril

Question 6

NO DUTY - Undertaking to assist exception rule proof

Answer 6

• An actor who undertakes to render services
• Knows or should know services will reduce risk of physical harm to the other
• Owes a DORC if:
  + Failure to exercise such care increases risk
  + The person is relying on actors use of reasonable care
• Scope of undertaking can be determined only from the facts/circumstances of the case

Question 7

NO DUTY - Special Rel. exception rule/proof

Answer 7

• Danger that arises within the confines of the rel.
• Categories:
  + Common carrier with passenger
  + An innkeeper with guests
  + Business or other possessors of land that holds premises open to the public with those lawfully on-premise
  + School w/ students
  + Landlord with its tenants
  + Custodian with those in custody

Question 8

NO DUTY - Statutory provisions imposing obligations to protect another

Answer 8

• Expressly state an affirmative duty
• Also apply to someone whose conduct has ceased but risk to other continues
• Some courts find implied

Question 9

NO DUTY - Duty to 3rd person due to the special rel with the person posing a risk

Answer 9

• Person posing a risk of harm has a special rel. to a person who must know take reasonable steps to mitigate harm
• If the actor neither knows nor should have known then no duty
• Special Rel. categories
  + Parents w/ dependent children
  + Custodian with those in custody
  + Employer with employees when employment facilitates & employees causing harm to 3rd parties
  + Mental health prof. with patients
  
  • General rule for 3rdparties is no but if bc of their rel. you are aware of the danger to an identifiable victim and there is some probability your patient will hurt that victim then it is enough to owe a duty to 3rd party
    + Wife or spouse is not a duty to control third party spouse against others - it isn’t sufficient enough
• But if the spouse knows 3rd party is dangerous, who the victim is - identifiable victim, and there is a high likelihood then = duty
  + Attorney representing a criminal D, and knows client will foreseeably with some probability will hurt a third party, identifiable victim then you owe a duty

Question 10

NO DUTY - Duty based on undertaking to another

Answer 10

• An actor who despite no duty to do so takes charge of another who reasonably appears to be
  + Imperiled and
  +Helpless or unable to protect himself or herself
• Has a duty to exercise reasonable care while the other is within the actor’s charge

Question 11

nvm

Answer 11

-

Question 12

Defin of landowner/possessor

Answer 12

Right to exclude others from property

Question 13

Self Help Rule

Answer 13

Your neighbor does not owe you a duty of reasonable care if something that naturally grows onto your property that is causing a danger and under the circumstances you can do it yourself

Question 14

Landowner - Invitee

Answer 14

Rule = One who enters land in furtherance of the owners business

• Must exercise reasonable care in keeping premise reasonably safe
• Even if danger is known the D must eliminate the danger & should reasonably anticipate that the P may be injured
• Social hosts do not owe a duty to 3rd parties for the conduct of guys but commercial hosts do to foreseeable 3rd p

Question 15

Landowner - Licensee

Answer 15

Rule = Someone invited onto the premise by permission of owner for furtherance of licensees own purpose
- Owe a duty to warn of hidden dangers that know or should know if it is foreseeable a licensee will encounter it

Question 16

Landowner - lessor/licensee general rule & exceptions

Answer 16

General Rule = Once a property is leased it is now the lessees duty
6 Exceptions
1) Know or should have known of a hidden danger and you have not put tenant on notice then you continue to be liable under traditional rules
2) Outsiders - you lease a property and there is a danger to outsiders
3) If you lease know its going to be open to public you owe a duty of reasonable care
4) If you retained control over certain areas you owe a duty to the property that you have control over
5) Promises to repair but you don’t do it you owe a duty of reasonable care
6) You did repair but were negligent in repairing you owe a duty of reasonable care
*Some jurisdictions just say you owe a DORC

Question 17

Landowners - Trespasser defin, general rule and exceptions

Answer 17

Defin = Person who enters or remains on land in the possession of another without the possessor’s consent or other legal privileges
Rule = No duty to an undiscovered trespasser
- Exceptions
+ Freq trespass in limited area & you know trespasser may discover it & hidden danger (Applies to Tolerated intruders too)
+ Once you discover a trespasser whose presence has been discovered you must use ordinary care

Question 18

Landowners - Trespasser v Flagrant trespasser factors

Answer 18

1) Entry for purposes of committing crime against possessor family or guests or property
2) Entry for purposes of committing a crime despite not being accomplished
3) Entry for illegal or improper purpose
4) Entry despite efforts to prevent trespass and specifically by the P
5) Effort by trespasser such as ignoring no trespass signs, defeating gates/locks
6) Entry that results in damage

Question 19

Landowners - Children Trespasser

Answer 19

a) Possessor knows or has reason to know that children are likely to trespass and
b) Know and which he realizes or should realize will involve an unreasonable risk or serious bodily harm to children and
c) Because of their youth do not discover the danger or risk and
d) Burden of mitigating the danger is small compared to danger and
e) Possessor fails to use reasonable care to eliminate danger or protect children

• More recent jurisdictions put the ordinary care standard*

Question 20

Emotional distress general & exceptions

Answer 20

General = You need physical harm for ED claims

• Some req impact and others say distress has to be proximately caused by negligence leads to foreseeable physical harm
  1) Zone of imminent danger of serious physical harm
  2) Death telegram rule
  3) Negligently communicate to a relative someone has died
  4) Special rel or undertaking to assist
  5) Negligently mishandling bodies
  6) Bystander
• Negligently caused severe distress

Question 21

emotional distress exception - Zone of imminent danger of serious physical harm

Answer 21

• Imminent serious physical harm to their own physical well being

Question 22

emotional distress exception - death telegram rule

Answer 22

1) Recovery for emotional harm resulting from negligent transmission by a telegraph company of a message announcing the death of a loved one
2) Undertake to assist someone to tell them they died and you do it negligently in circumstances where it is highly likely to cause emotional distress if negligent

Question 23

Emotional distress exception - Special rel or undertaking to assist

Answer 23

The kind of rel where if you are negligent it is highly likely you will cause distress
EX: Dr who misrepresented to woman she had syphillis

Question 24

Emotional distress exception - Negligently caused severe distress

Answer 24

• An actor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional harm to another is subject to liability for that emotional harm and if the emotional harm causes bodily harm also for the bodily harm
• Injury has to be normal sensitive
• Factors for severity req:
  i) Facts of each case
  ii) Relationship of the parties
  iii) Whether the actor abused a position of authority over the other person
  iv) Was especially vulnerable and the actor knew that
  v) Motivation of the actor and
  vi) Whether the conduct was repeated or prolonged

Question 25

Emotional distress exception - Negligent conduct directly inflicts emotional harm on another

Answer 25

1) An actor whose negligent conduct causes serious emotional harm to another is subject to liability to the other if the conduct
a. Places the other in danger of immediate bodily harm and the emotional harm results from the danger or
b. Occurs in the course of specified categories of activities undertaking or relationships in which negligent conduct is especially likely to cause serious emotional harm

Question 26

Emotional distress exception - Bystander

Answer 26

• Contemptuously observing through one sense that your loved one was injured by a negligent actor
  a. Close relative of victim and you contemporaneously view, aware of an injury, aware it is your close relative
  b. Close relative shows up shortly after, knows it is close rel., they are injured

Question 27

Pure economic loss claims - general rule and exception

Answer 27

a. General rule = no claims for pure economic loss absence injury
b. Exception:
i. Fiduciary/3rd party beneficiary
ii. Special relationship
iii. Money spent to avoid imminent threat or danger of physical injury
- Any reasonable person would spend money to avoid that physcial harm

Question 28

Contributory negligence - defenses last clear chance 3 forms

Answer 28

1) If the D ACTUALLY discovered that P was helpless in peril of the D conduct if at that point they could have avoided accident with reasonable care then there is no defense of CN
a) All jurisdictions use this
2) Actually discover P is in danger because they are not paying attention not in helpless peril they are inattentive
a) Only some accept this
3) P is helpless and the D didn’t discover it but any reasonable person would have (should have discovered it)
b) Only some jurisdictions accept this

Question 29

Contributory negligence - defenses last clear chance judicial devices to lower harsh effects

Answer 29

a. Burden of proof is put on the D
b. Leaving the question of contributory negligence to the jury
a. Courts often wont take this question away by providing summary judgment or directed verdict
c. Causation in fact
a. Bar recovery only if it is a substantial factor in bringing about the result
d. Proximate cause
a. Limiting the scope of proximate cause as applied to risks that P exposed himself to by his act of negligence
e. Dual standards of care

Question 30

Assumption of risk - express

Answer 30

• Whether the risk that injured the P fell within the unambiguous scope of the terms of the agreement
• If agreement violates PP and therefore should not be enforced

Question 31

Assumption of risk - express, public policy factors

Answer 31

• Grossly unequal bargaining power
• service or great public interest, practical necessity
• forced to sign an express agreement that waives liability
• adhesion that has no bargaining
• the kind of service that is subject to public regulation (public utilities)
• is it open to the public

Question 32

Assumption of risk - implied

Answer 32

• Actual knowledge of the particular risk
• Voluntarily encountering the risk
• subjective = you have to know personally,
• Voluntary is looking at reasonably safe alternatives
  
  • How burdensome the other options, how important the task is

Question 33

Assumption of risk - other court alternatives to two categories

Answer 33

Primary assumption of risk
- P assumed risks inherent to the activity
Secondary assumption of risk
- P acts voluntarily but unreasonably to encounter known risk, knew of particular risk

Question 34

Vicarious liability - respondeat superior

Answer 34

Rule = Employer can be liable for acts of employee even intentional torts, sometimes willful & malicious torts

1) Must be in scope of employment = furthering the interest of the employee
2) Acts of necessity, comfort, convivence, health/welfare do not take employee outside of the scope

Question 35

Vicarious liability - respondeat superior, coming & going rule

Answer 35

• RS does not apply to commute to and from work

Exception = employee who endangers others with a risk arising from or related to work

Question 36

Vicarious liability - respondeat superior, slight deviation rule

Answer 36

• When an employee does something outside the scope can be liable if a detour but not if a frolic
• Factors:
  i. Employees intent
  ii. Nature, time, and place of deviation
  iii. Time consumed in the deviation
  iv. Work for which the employee was hired
  v. Incidental acts reasonably expected by the employee
  vi. Freedom allowed the employee in performing his job responsibilities

Question 37

Vicarious liability - respondeat superior, contractors

Answer 37

General rule = no liability
Exceptions
- One who carries activity that threatens a grave risk of serious bodily harm or death unless the instrumentality used are carefully maintained
- Dangerously inherent activity
- Illegal activities
- Nondelegable duties
- Apparent authority if reliance is reasonably & either expressly or impliedly represent they are servant or agent

Question 38

Strict liability rule

Answer 38

D must pay damages even though they never acted intentionally or negligently

Question 39

Strict liability - defenses

Answer 39

• Public duty
• Intervening 3rd parties cause the harm
• Not proximate cause
• Assumption of risk
• Contributory negligence
• “Acts of god”

Question 40

Strict liability - Abnormally dangerous activities, factors

Answer 40

a) Existence of a high degree of risk to persons, chattels, or land of others
b) Likelihood that the harm results from it will be great
c) Inability to reduce the risk by exercise of reasonable care
d) Extent to which activity is of common usage
e) Inappropriateness of place which activity is taking place
f) Extent to which its value is outweighed by dangerous attributes

Question 41

Strict liability - Wild animals

Answer 41

Basic rule = If you are possessor, owner, or harbor, or keep then you are SL
Defin = something that isn’t historically, traditionally domesticated (even if trained)

Question 42

Strict liability - Domestic animals

Answer 42

Basic rule = If there is the propensity and you know or should have known then SL, and injury is type foreseen with a propensity

Question 43

Strict liability - trespassing animals

Answer 43

a) Owner of domestic animals of a kind likely to roam and do damage is strictly liable for their trespass
ex: Cattle, horses, sheep, hogs, goats, fowl (turkeys), chickens, pigeons
b) NOT included are household pets ie cats, dogs
i) Sanctioned by general use that an exception as made
ii) Unless knew or should have known they would trespass and cause damage
c) Exception = Cattle being lawfully driven who stray

Question 44

Products liability

Answer 44

a. Imposing negligence liability upon all sellers of chattels
Regardless of: damage is to person or property, the manufacturer produced the whole product or a component part, whether or not the injured person was the immediate purchaser
- Generally only for personal injury
exception = If alleged defects create an unreasonably risk of injury even if no one is injured

Question 45

Products liability - ways to prove

Answer 45

• Express warranty
• Fitness for a particular purpose warranty
• Manufacturing defect
• Defective in design
• Inadequate instructions or warnings

Question 46

Products liability - Express warranty

Answer 46

R = Someone in business of selling chattels is strictly liable if made EW to public about its safety & you breached it

1) Reached consumer/user without substantial change,
2) reasonably relied on the express warranty (knew about it),
3) seller is a merchant to those goods
* Wasn’t safe as warranted & that caused my injury

Question 47

Products liability - Fitness for a PP

Answer 47

R =

1) Made PP known to the seller
2) Reasonably relied on seller expertise
3) Wasn’t safe for the PP
4) Caused injury
* Applicable to safe products

Question 48

Products liability - Manufacturing defect

Answer 48

Rule = departs from its intended design even with all possible care
- Does not conform in some significant aspect to intended design nor does it conform to the great majority of products manufactured in accordance with that design

a) Product that injured P was manufactured by the D
I) One who sells or distributes a product as its own that was manufactured by another is subject to same liability as if it were the products manufacturer
b) Product was defective and P was injured as a result
i) Permitting inference of defect based on circumstantial evidence if incident of kind that ordinarily occurs as a result of product defect and other possible causes are negated
c) Defect was present in the product at the time of sale not introduced by a distributor or installer or repairer

Question 49

Products liability - defective design

Answer 49

a. Rule = Foreseeable risks of harm posed by the product could have been reduced or voided by a reasonable alternative design and failure to do so resulted in the product not being reasonably safe
b. Factors for unreasonableness
1) Burden, probability, social utility, gravity, injury
a) Social utility =
How much consumers want it, would new design have more utility, cost of alt., how desirable alt would be

a) Product that injured P was manufactured by the D
I) One who sells or distributes a product as its own that was manufactured by another is subject to same liability as if it were the products manufacturer
b) Product was defective and P was injured as a result
i) Permitting inference of defect based on circumstantial evidence if incident of kind that ordinarily occurs as a result of product defect and other possible causes are negated
c) Defect was present in the product at the time of sale not introduced by a distributor or installer or repairer

Question 50

Products liability - Inadequate Instru or warning

Answer 50

a. Rule = foreseeable risk of harm posed by the product could have been reduced or avoided with instruction or warning
Rule Proof = D did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution

Question 51

Landowners = Outsiders

Answer 51

In general = Know or should know its foreseeable something on their land could be a danger to people outside DRC

• Some hold both for A and N
• Some hold only for A

Question 52

Limitations to nuisance

Answer 52

1. Hypersensitivity - harm must be of the kind suffered by an ordinary person in the community
2. Sensitive uses of land
3. Right to farm statutes
   Preventing new residents from restricting established ag practices

Question 53

Nuisance - injunction factors

Answer 53

1. Character or extent of the harm suffered by or threatened to the P
2. The good faith or intentional misconduct of the D or his efforts to avoid injury
3. Financial investments of the parties and the relative economic harm each will suffer from the grant or denial of the injunction
4. Interest of the general public in continuing D enterprise

Question 54

Public nuisance

Answer 54

+ An unreasonable interference with a right common to the general public but P must be suffering an injury different in kind to the general public
+ Unreasonable if it includes the following:
a) Substantial interference with the public health, public safety, public peace, public comfort, or public convenience
b) Conduct is proscribed by a statute, ordinance, or administrative regulation or
c) If conduct is of a continuing nature or has produced a permanent or long-lasting effect and to the actors, knowledge has a substantial detrimental effect upon a public right

Question 55

Private nuisance

Answer 55

1. An unreasonable interference with the use or enjoyment of a property interest in land
2. Interference with the following:
   a) Physical condition of land
   b) Health of occupant
   c) Comfort or convenience
   d) Peace of mind

Question 56

Negligent defense - contributory negligence

Answer 56

a) Does not apply for intentional private nuisance cases

b) When nuisance arises out of negligence most courts allow CN as a defense for partial or full

Question 57

Negligent defense - self help req

Answer 57

a) Nuisance be a condition
b) Causes or threatens special damage to the individual apart from general public
c) If outside the actors premise it has to be an actual nuisance, mistake is not a defense
d) Application of reasonable force is according to the necessities of the situation which can extend to destruction of valuable property
e) Does not justify personal injury or breach of peace, or unnecessary or unreasonable damage
f) Must first notify the wrong doer of nuisance and give chance to remedy

Question 58

Negligent defense - tree/plant related actions

Answer 58

1) Nuisance claim will not lie unless person first tried self help
2) Some courts look at factors of:
Population density, diminishing ag activity in determining if plant is a nuisance

Question 59

Fraud/Deceit

Answer 59

1) D misrepresented a material fact
2) D knows its false
a) Have to prove they knew it was false at the time of misrepresentation
b) Either subjectively knew it was false, no belief in its truth, reckless/careless, no basis for statement
3) Intends P to rely on the misrepresentation
4) P did rely on the misrepresentation & reasonably relied
5) Reliance caused detriment (actual economic damage or physical)

Question 60

Negligent misrepresentation

Answer 60

1) D misrepresented a material fact
2) Should of known/ a reasonable person would have known it was false
3) Intends P to rely on the misrepresentation
4) P did rely on the misrepresentation & reasonably relied)

Question 61

Negligent - what material is

Answer 61

a) Material = one to which a reasonable man would attach important in determining his choice of action in the transaction in question

Question 62

Third party reliance misrep - NY View

Answer 62

i. Know who the P is and that they are relying
ii. Know the particular transaction the report will be used for
iii. Show conduct linking parties

Question 63

Third party reliance misrep - Wisconsin

Answer 63

i. If the P is in the class of a foreseeable person who will be hurt from your misrep
ii. As long as foreseeable
iii. Unless there is a public policy reason against liability
a. Injury is too far remote
b. Extraordinary amount of liability
c. Out of proportion
d. Unreasonable burden
e. Open flood gates
f. No stopping point
iv. Standard duty for negligence standards

Question 64

Third party reliance misrep - Restatement

Answer 64

i. Limited group/class of persons or specific P that is relying on this report
ii. Substantially similar transaction/type of transaction

Question 65

Innocent misrep

Answer 65

i. General rule = no cause of action for tort of innocent misrepresentation
ii. Minority view = even if innocent if they intended you to rely and you reasonably rely to your detriment then you have a cause of action