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2022 Delaware Bar Exam > Torts (MBE) > Flashcards

Torts (MBE) Flashcards

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1
Q

Intentional Torts: Transferred Intent + Torts That Apply

A

When the defendant intends to commit a tort against one person but instead, either: (i) commits a DIFFERENT TORT against that same person, (ii) commits the same tort as intended but against a DIFFERENT PERSON, or (iii) commits a DIFFERENT TORT against a DIFFERENT PERSON.

The following torts are the only ones that apply under this doctrine:

1) Assault
2) Battery
3) False Imprisonment
4) Trespass to Land
5) Trespass to chattels

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2
Q

Intentional Torts: Plaintiff’s Hypersensitivity

A

A plaintiff’s extreme sensitivity is disregarded in a lawsuit.

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3
Q

Intentional Torts: Lack of Capacity

A

Incapacity is NOT taken into account for an intentional tort, meaning children or mentally incompetent persons will be liable for their intentional torts.

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4
Q

Intentional Torts: Battery

A

Intentional harmful or offensive CONTACT with the PLAINTIFF’S PERSON

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5
Q

Intentional Torts: Battery - Offensive Contact + Implied Consent

A

Contact is offensive if it is NOT PERMITTED or NOT CONSENTED to

Consent will be implied for ORDINARY CONTACT of everyday life.

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6
Q

Intentional Torts: Battery - Plaintiff’s Person

A

Anything that is connected to or touching the plaintiff (e.g., purse or clothing)

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7
Q

Intentional Torts: Battery, Assault, and False Imprisonment - Required Damages

A

Even if no actual damages can be proven, a plaintiff can recover NOMINAL DAMAGES or PUNITIVE DAMAGES for malicious conduct. This is true for ASSAULT, BATTERY, and FALSE IMPRISONMENT

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8
Q

Intentional Torts: Assault

A

Intentionally creating a REASONABLE APPREHENSION of an IMMINENT HARMFUL OR OFFENSIVE CONTACT to the PLAINTIFF’S PERSON.

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9
Q

Intentional Torts: Battery - Instantaneous Contact

A

Contact does NOT need to be instantaneous, it could be caused on delay (e.g., spring trap)

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10
Q

Intentional Torts: Assault - Plaintiff’s Knowledge of Conduct

A

The plaintiff must have been AWARE OF THE THREAT from the defendant’s act, BUT need not be aware of the defendant’s identity.

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11
Q

Intentional Torts: Assault - Defendant’s Apparent Ability

A

If the defendant has the APPARENT ABILITY to commit a battery, this will be enough to cause a reasonable apprehension.

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12
Q

Intentional Torts: Assault - Effect of Words

A

Words alone are NOT ENOUGH to commit an assault, but they can be used to NEGATE a physical act (e.g., the defendant shakes their fist but says they are not going to hit the plaintiff)

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13
Q

Intentional Torts: False Imprisonment

A

A defendant’s act or omission that CONFINES or RESTRAINS the plaintiff to a BOUNDED AREA.

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14
Q

Intentional Torts: False Imprisonment - Sufficient Acts of Restraint

A

1) Physical barriers,
2) Physical force directed against plaintiff, immediate family, or personal property,
3) Direct or implied threats of force,
4) Failure to release with a legal duty to do so, or
5) Invalid use of legal authority

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15
Q

Intentional Torts: False Imprisonment - Insufficient Acts of Restraint

A

1) Moral pressure, or

2) Future threats

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16
Q

Intentional Torts: False Imprisonment - Time of Confinement

A

It is IRRELEVANT how short of a period the plaintiff is restrained for

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17
Q

Intentional Torts: False Imprisonment - Awareness of Confinement

A

The plaintiff MUST KNOW of the confinement or be HARMED by it

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18
Q

Intentional Torts: False Imprisonment - Reasonable Escape in Bounded Area

A

The area is NOT BOUNDED if there is a REASONABLE means of escape

Ways out that are not reasonable:

1) dangerous,
2) disgusting,
3) humiliating, or
4) hidden

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19
Q

Intentional Torts: Intentional Infliction of Emotional Distress

A

Defendant creates EXTREME and OUTRAGEOUS CONDUCT that results in SEVERE EMOTIONAL DISTRESS to the plaintiff

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20
Q

Intentional Torts: Intentional Infliction of Emotional Distress - Extreme or Outrageous Conduct

A

Conduct that transcends all bounds of decency. Conduct that is normal, but may become extreme if: (i) it is CONTINUOUS, (ii) committed by a CERTAIN DEFENDANT (i.e. common carriers or innkeepers), or (iii) direct toward a CERTAIN PLAINTIFF (i.e., children, elderly persons, pregnant women, or known sensitive adults)

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21
Q

Intentional Torts: Intentional Infliction of Emotional Distress - Requisite Intent

A

Defendant’s state of mind can be INTENTIONAL or RECKLESS.

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22
Q

Intentional Torts: Intentional Infliction of Emotional Distress - Damages Required + Proof of Physical Damages

A

Actual damages (i.e., sever emotional distress), are required

Proof of physical damages is generally NOT required

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23
Q

Intentional Torts: Intentional Infliction of Emotional Distress - Causation to Bystander

A

If the plaintiff is a bystander, he may recover by showing either the prima facie case of IIED or: (i) they were PRESENT when the injury occurred, (ii) the distress resulted in bodily harm to a CLOSE RELATIVE, and (iii) the defendant KNEW of these facts.

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24
Q

Intentional Torts: Trespass

A

Defendant intends a PHYSICAL INVASION of plaintiff’s REAL PROPERTY.

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25
Q

Intentional Torts: Trespass - Physical Invasion Requirement

A

The invasion can be by a PERSON or OBJECT, but NOT INTANGIBLE (e.g., odor or sound)

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26
Q

Intentional Torts: Trespass - Intent

A

The defendant need only intend TO ENTER the land, not the fact that the land is owned by another.

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27
Q

Intentional Torts: Trespass - Damages

A

Damages are NOT REQUIRED for plaintiff recovery.

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28
Q

Intentional Torts: Trespass to Chattels

A

Intentional INTERFERENCE with plaintiff’s RIGHT OF POSSESSION in a chattel (personal property).

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29
Q

Intentional Torts: Trespass to Chattels - Types of Interference

A

1) Damage item, or

2) Dispossession (depriving plaintiff of rightful possession)

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30
Q

Intentional Torts: Trespass to Chattels - Intent

A

intent to trespass IS NOT required, only intent to act of interference is required (meaning, defendant’s mistaken belief that they own the chattel is no defense)

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31
Q

Intentional Torts: Trespass to Chattels v. Conversion

A

Trespass to chattels results in a SMALL HARM

Conversion results in a BIG HARM (full market value of property)

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32
Q

Intentional Torts: Conversion

A

Intentional interference with plaintiff’s personal property so serious that warrants defendant pay property’s FULL VALUE.

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33
Q

Intentional Torts: Conversion - Acts of Conversion

A

Acts of conversion include wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing or damaging the chattel.

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34
Q

Intentional Torts: Conversion - Intent

A

The only intent required is the intent to do the act that interferes. Mistake as to ownership is NO DEFENSE.

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35
Q

Intentional Torts: Conversion - Remedies

A

Plaintiff may recover DAMAGES (fair market value) or POSSESSION (replevin).

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36
Q

Defenses to Intentional Torts: Consent

A

The plaintiff’s consent to defendant’s conduct is a defense, UNLESS it is a criminal act.

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37
Q

Defenses to Intentional Torts: Consent - Capacity

A

Individuals without capacity are INCAPABLE of consent

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38
Q

Defenses to Intentional Torts: Consent - Express v. Implied + Exceptions

A

The plaintiff may expressly consent to defendant’s conduct by words or writing, or impliedly consent inferred from CUSTOM and USAGE, PLAINTIFF’S CONDUCT, or BY LAW (e.g., lifeguard saving a drowning patron)

Exceptions: (i) mistake will undo express consent IF DEFENDANT KNEW of and took advantage of the mistake, (ii) consent induced by FRAUD, and (iii) consent obtained by DURESS.

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39
Q

Defenses to Intentional Torts: Consent - Scope of Consent

A

Defendant may exceed the scope of consent by committing a MORE INTRUSIVE invasion or by invading a different interest than the one the plaintiff referenced.

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40
Q

Defenses to Intentional Torts: Privileges - Self-Defense

A

A personally who REASONABLY BELIEVES they are being attacked may use such force as is REASONABLY NECESSARY to protect against injury.

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41
Q

Defenses to Intentional Torts: Privileges - Self-Defense - Duty to Retreat (Majority v. Modern Rule)

A

Majority Rule - No duty to retreat

Modern Rule - imposes a duty to retreat before using DEADLY FORCE, unless actor is in their home.

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42
Q

Defenses to Intentional Torts: Privileges - Self-Defense - Mistake

A

A reasonable mistake as to the existence of the danger is ALLOWED.

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43
Q

Defenses to Intentional Torts: Privileges - Self-Defense - Amount of Force

A

One may use only the force that REASONABLY APPEARS to be necessary to prevent the harm.

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44
Q

Defenses to Intentional Torts: Privileges - Defense of Others

A

One may use force to defend another when they REASONABLY BELIEVE that the other person could have used force to defend themselves.

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45
Q

Defenses to Intentional Torts: Privileges - Defense of Property

A

One may use REASONABLE FORCE to prevent the commission of a tort against their real or personal property, but force causing DEATH or SERIOUS BODILY HARM IS NEVER ALLOWED.

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46
Q

Defenses to Intentional Torts: Privileges - Defense of Property - Shopkeeper’s Privilege

A

A shopkeeper has a privilege to detain a suspected shoplifter for investigation if the following requirements are satisfied: (i) there must be a REASONABLE BELIEF as to the fact of theft, (ii) the detention must be conducted in a REASONABLE MANNER and nondeadly force must be used, and (iii) the detention must be only for a REASONABLE PERIOD OF TIME.

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47
Q

Defenses to Intentional Torts: Privileges - Defense of Property - Reentry onto Land

A

One could force reentry onto land when an intruder came into possession tortuously

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48
Q

Defenses to Intentional Torts: Privileges - Defense of Property - Recapture of Chattels

A

Similar to reentry onto land, one may use peaceful means to recover chattel. Reasonable force may be used to recapture chattel when in HOT PURSUIT.

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49
Q

Defenses to Intentional Torts: Privileges - Necessity

A

A person may interfere with the real or personal property of another when it is NECESSARY in an emergency to AVOID SUBSTANTIAL INJURY from a NATURAL FORCE.

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50
Q

Defenses to Intentional Torts: Privileges - Necessity - Public v. Private

A

Public - a natural emergency that threatens a large group of people (e.g., town or city), where the defendant does not have to pay for any damages to property

Private - a natural emergency that only impacts a few people (e.g., household), however the defendant DOES have to pay COMPENSATORY DAMAGES and can REMAIN ON THE PROPERTY as long as emergency continues

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51
Q

Negligence Elements

A

1) Duty
2) Breach
3) Causation (proximate and actual)
4) Damages

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52
Q

Negligence: Duty - To Whom Is A Duty Owed?

A

A duty of care is owed only to FORESEEABLE PLAINTIFFS within the zone of danger

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53
Q

Negligence: Duty - Rescuers

A

A rescuer is a FORESEEABLE plaintiff when the defendant negligently put themselves or others in peril

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54
Q

Negligence: Duty - Firefighter’s Rule

A

Firefighters and police officers are barred from recovering for injuries caused by the inherent risks of their jobs.

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55
Q

Negligence: Duty - Prenatal Injury

A

A duty of care is owed to a VIABLE FETUS, and parents may recover for WRONGFUL BIRTH in cases for failure to diagnose defect

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56
Q

Negligence: Duty - Intended Beneficiaries of Economic Transactions

A

A third party for whose economic benefit a legal or business transaction was made MAY BE A FORESEEABLE PLAINTIFF.

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57
Q

Negligence: Duty - Basic Standard of Care

A

All persons owe a duty to behave as a REASONABLY PRUDENT PERSON, measured as an OBJECTIVE STANDARD.

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58
Q

Negligence: Duty - Basic Standard of Care - Superior Skill or Knowledge

A

A defendant who has superior knowledge or skill is expected to exercise that to other people (heightened duty)

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59
Q

Negligence: Duty - Basic Standard of Care - Exception for Physical Characteristics

A

One who has different physical characteristics (e.g., blind) should act as a reasonably prudent person WITH THAT CHARACTERISTIC.

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60
Q

Special Negligence Duties: Children + Children Under 5 + Adult Activities

A

Children are held to the standard of similar AGE, EXPERIENCE, and INTELLIGENCE (subjective test)

A child under 5 years old is usually WITHOUT THE CAPACITY to be negligent.

Children engaged in potentially dangerous adult activities (e.g., operating a motorized vehicle) may be required to conform to an “adult” standard of care

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61
Q

Special Negligence Duties: Professionals + Doctors

A

A professional is required to possess the knowledge and skill of an AVERAGE MEMBER OF THE PROFESSION

Doctors generally are held to the NATIONAL STANDARD of care.

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62
Q

Special Negligence Duties: Doctors - Risk of Treatment

A

A doctor has a duty to disclose the risks of treatment to enable a patient to give an informed consent. This duty is breached if an undisclosed risk was serious enough that a reasonable person WOULD HAVE WITHHELD CONSENT on learning of the risk.

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63
Q

Special Negligence Duties: Possessor of Land - Unknown Trespasser

A

NO DUTY is owed to an undiscovered trepasser

64
Q

Special Negligence Duties: Possessor of Land - Known Trespasser

A

Land possessor must warn or make safe any conditions that are: (i) ARTIFICIAL, (ii) HIGHLY DANGEROUS, (iii) CONCEALED, and (iv) KNOWN to the land possessor in advance (known manmade death traps)

65
Q

Special Negligence Duties: Possessor of Land - Licensees (Define Licensee and Duty) + Duty to Inspect or Repair

A

A licensee is one who enters onto the land with the possessor’s permission for their OWN PURPOSE or BUSINESS, but without financial benefit to possessor (i.e., social guests).

For licensees, the land possessor has a duty to warn of or make safe HAZARDOUS CONDITIONS that are: (i) CONCEALED, and (ii) KNOWN TO THE POSSESSOR IN ADVANCE (all known traps)

The landowner must exercise reasonable care in the conduct of “active operations,” there is NO DUTY to inspect or repair.

66
Q

Special Negligence Duties: Possessor of Land - Invitees (Define Invitees and Duty)

A

Invitees enter onto land in response to an INVITATION by the possessor of land, unless invitee exceeds scope of the invitation.

The landowner owes a duty to invitees regarding HAZARDOUS CONDITIONS that are: (i) CONCEALED, and (ii) KNOWN to the land owner in advance or COULD HAVE BEEN DISCOVERED by a reasonable inspection. (all reasonably knowable traps)

67
Q

Special Negligence Duties: Possessor of Land - Attractive Nuisance + Elements

A

A landowner has the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by DANGEROUS ARTIFICIAL CONDITIONS.

To establish the doctrine’s applicability, the plaintiff must show:

1) a DANGEROUS CONDITION on the land that the owner is or should be aware of,
2) the owner KNOWS OR SHOULD KNOW that children might trespass on the land,
3) the condition is LIKELY TO CAUSE INJURY, and
4) the EXPENSE of remedying the situation IS SLIGHT compared with the magnitude of the risk

68
Q

Special Negligence Duties: Possessor of Land - Users of Recreational Land + Exception

A

A landowner who permits the GENERAL PUBLIC to use their land for RECREATIONAL PURPOSES with NO FEE is NOT LIABLE for injuries suffered by a recreational user, UNLESS the landowner WILLFULLY and MALICIOUSLY failed to guard against or warn of a dangerous condition or activity.

69
Q

Special Negligence Duties: Possessor of Land - Duty to Those Off Premises + Duty to Carrying On Activities

A

There is generally NO DUTY to someone OFF the premises from NATURAL CONDITIONS, EXCEPT FOR an UNREASONABLY DANGEROUS ARTIFICIAL CONDITION.

One must carry on activities to AVOID UNREASONABLE risk of harm to others of the premises.

70
Q

Special Negligence Duties: Possessor of Land - How to Satisfy Premises Liability on Duty

A

Either: (1) Eliminate the hazardous condition (repair, remove, or replace), or (2) WARN about hazardous condition

71
Q

Special Negligence Duties: Possessor of Land - Duties of Lessor and Lessee of Realty

A

The lessee has a general duty to maintain the premises

The lessor must warn of existing defects of which they are aware or have reason to know. If the lessor covenants to repair, they are liable for UNREASONABLY DANGEROUS CONDITION.

72
Q

Special Negligence Duties: Possessor of Land - Duties of Vendor of Realty

A

A vendor MUST DISCLOSE to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know and which the vendor knows the vendee is NO LIKELY TO DISCOVER on a reasonable inspection.

73
Q

Negligence Per Se Requirements

A

A criminal statute may replace duty of care if:

1) plaintiff is within the PROTECTED CLASS, and
2) the statute was designed to PREVENT THE HARM SUFFERED by the plaintiff

74
Q

Negligence Per Se: Excuse for Violation

A

Violation of some statutes MAY be excused where compliance would CAUSE MORE DANGER than violation OR where compliance was BEYOND DEFENDANT’S CONTROL (compliance was impossible).

75
Q

Negligence Per Se: Effect of Violation v. Effect of Compliance

A

A statutory violation of negligence per se establishes the first two requirements in the prima facie case (presumption of duty and breach of duty)

However, compliance with the statute WILL NOT necessarily establish due care.

76
Q

Special Duties: Affirmative Duty to Act

A

Generally, one DOES NOT have a legal duty to act (no duty to rescue)

77
Q

Special Duties: Affirmative Duty to Act - Special Relationship Between Parties Exception

A

A special relationship MAY create a duty to act (e.g., parent-child, doctor-patient)

Certain jobs as COMMON CARRIERS, INNKEEPERS, or SHOPKEEPERS, or others that gather profit for care of patrons are required to care for customers

78
Q

Special Duties: Affirmative Duty to Act - Peril Due to Own Conduct Exception

A

One has a duty to assist someone they have negligently or innocently placed in peril.

79
Q

Special Duties: Affirmative Duty to Act - Assumption of Duty by Acting

A

One may assume a duty to act by taking responsibility to assist someone

80
Q

Special Duties: Preventing Harm from Third Persons

A

Generally, no duty to prevent a third person from injuring another. HOWEVER, one may have a duty imposed if he has the actual ABILITY and AUTHORITY to control a person’s actions, and knows the person is likely to commit acts that would require exercise of this control.

81
Q

Special Duties: Good Samaritan Statutes + Scenarios Silent on Good Samaritan Statutes

A

Good Samaritan statutes exempt rescuers (e.g. doctors, nurses, etc.) from liability for ORDINARY negligence, BUT NOT gross negligence.

If an issue arises that is silent as to Good Samaritan statutes, the person will be liable for negligence of a rescue.

82
Q

Negligent Infliction of Emotional Distress - Near Miss Case

A

In addition to the underlying negligence, the plaintiff must show:

1) the plaintiff was within the “ZONE OF DANGER,” and
2) the plaintiff must suffer PHYSICAL SYMPTOMS from the distress

83
Q

Negligent Infliction of Emotional Distress - Bystander Case + Physical Symptoms

A

A bystander outside the “zone of danger” who sees the defendant negligently injured can recover damages for their own distress if:

1) the plaintiff and the person injured by the defendant are CLOSELY RELATED (e.g., child or spouse), and
2) the plaintiff was PRESENT at the scene and PERSONALLY PERCEIVED the event

Most states have dropped the requirement that physical symptoms be shown.

84
Q

Negligent Infliction of Emotional Distress - Business Relationship Case

A

Plaintiff can recover if HIGHLY FORESEEABLE that careless performance by the defendant will produce emotional distress (e.g., doctor’s misdiagnosis of terminal illness)

85
Q

Proving Breach

A

Plaintiff must show concrete evidence of breach of duty

86
Q

Breach in Negligence: Custom or Usage

A

Evidence of the custom or usage of others may be used to establish how a person SHOULD HAVE acted under certain circumstances

87
Q

Breach in Negligence: Negligence Per Se

A

Violation of a statute may show breach of duty if the plaintiff was in the class of persons the statute sought to protect and the statute was meant to prevent the type of harm that occurred.

88
Q

Breach in Negligence: Res Ipsa Loquitur

A

Where the defendant does not have information about breach, plaintiff may prove it by showing:

1) the accident causing the injury would not occur without a negligent act, and
2) the negligence is probably attributable to the defendant (e.g., showing EXCLUSIVE CONTROL by defendant. `

89
Q

Breach in Negligence: Res Ipsa Loquitur - Effect + Directed Verdict (Plaintiff’s Motion v. Defendant’s Motion)

A

When res ipsa loquitur is established, plaintiff has made a prima facie case and NO DIRECTED VERDICT can be given TO DEFENDANT

The plaintiff’s motion for a directed verdict should ALWAYS BE DENIED, UNLESS plaintiff has established NEGLIGENCE PER SE and there are no issue of proximate cause.

90
Q

Causation in Negligence: Factual Causation (But For Test) + Defendant’s Rebuttal

A

Injury would not have occurred but for defendants act or omission

Defendant’s rebuttal will begin with “even if,”… the our actions were different the result would have remained.

91
Q

Causation in Negligence: Factual Causation - Substantial Factor Test + Liability

A

Where multiple sufficient causes to injury exist, defendant’s conduct will be a factual causation if it is a SUBSTANTIAL FACTOR in causing the injury.

Defendants would be found JOINTLY AND SEVERALLY liable and Plaintiff can recover full amount of damages from either defendant

92
Q

Causation in Negligence: Factual Causation - Unascertainable Causes

A

Where more than one act occurs, but plaintiff cannot differentiate which act caused injury, the BURDEN SHIFTS to defendants to prove liability.

93
Q

Causation in Negligence: Proximate Causation + Factors

A

A defendant generally is liable for a harmful result that was foreseeable from the defendant’s actions

Foreseeability factors: 1) passage of time, 2) geographic distance, and 3) prior occurance

94
Q

Causation in Negligence: Proximate Causation - Foreseeable Intervening Forces + Third Party Crime

A

Defendant can be found liable when their negligence caused a foreseeable normal REACTION from an INTERVENING FORCE that would harm the plaintiff.

Examples: medical malpractice, negligence of rescuers

Third Party Crime - If defendant’s negligence increased risk of harm such as crimes or negligence of third persons, defendant’s conduct may be foreseeable.

95
Q

Causation in Negligence: Proximate Causation - Superseding Forces

A

Intervening forces that produce unforeseeable results NOT WITHIN the increased risk created by defendant’s negligence break the causal connection and relief defendant of liability.

96
Q

Damages in Negligence: Eggshell Skull Doctrine

A

Once the plaintiff has established all other elements of claim, plaintiff receives ALL damages suffered even if surprisingly great in scope (i.e., you take your plaintiff as you find him)

97
Q

Damages in Negligence: Property Damage

A

The measure of damage is the reasonable cost of repair or fair market value if completely destroyed

98
Q

Damages in Negligence: When Punitive Damages are Recoverable

A

Punitive damages generally are not available in negligence cases, unless defendant’s conduct is WANTON AND WILLFUL, RECKLESS, or MALICIOUS

99
Q

Damages in Negligence: Contributory Negligence

A

If plaintiff contributes to his own injuries, he would be barred from recovery from defendant.

100
Q

Damages in Negligence: Contributory Negligence - Last Clear Chance

A

Permits plaintiff to recover despite their contributory negligence if the person with the LAST CLEAR CHANCE to avoid an accident fails to do so.

101
Q

Damages in Negligence: Assumption of Risk

A

Plaintiff may be denied recovery if they assumed the risk of any damage, plaintiff must have::

(i) KNOWN the risk, and
(ii) VOLUNTARILY proceeded in the face of the risk

102
Q

Damages in Negligence: Comparative Negligence (Partial v. Pure) + Default

A

Damages are reduced according to the percentage plaintiff is at fault

Partial Comparative Negligence - Plaintiff can recover so long as defendant is MORE negligent than defendant (51%)

Pure Comparative Negligence - Plaintiff can recover ANY AMOUNT defendant was found negligent (as low as 1%) (this is the DEFAULT rule)

103
Q

Strict Liability: Domesticated Animals + Trespassers

A

An owner is not strictly liable for injuries caused by domesticated animals, UNLESS the owner has KNOWLEDGE the animal has unique VICIOUS PROPENSITIES

An owner will NOT be liable to trespassers, even if knowledge of vicious propensities

104
Q

Strict Liability: Trespassing Animals

A

An owner is strictly liable for the damage caused by a trespassing animal

105
Q

Strict Liability: Wild Animals

A

An owner of a wild animal is strictly liable to licensees and invitees for injuries caused by wild animals

106
Q

Strict Liability: Abnormally Dangerous Activities Requirements + Foreseeability

A

1) The activity CANNOT BE MADE SAFE even through exercising ordinary care (e.g., explosives, toxic chemicals, etc.)
2) The activity is UNCOMMON where it is conducted

Foreseeability - The defendant’s liability ONLY EXTENDS to foreseeable plaintiffs

107
Q

Strict Liability: Products Liability - Theories of Liability

A

1) Intent
2) Negligence
3) Implied Warranties of Merchantability and Fitness for a Particular Purpose
4) Representation
5) Strict Liability

108
Q

Strict Liability: Products Liability - Strict Liability Elements

A

To find strict liability, the plaintiff must show:

1) The defendant is a MERCHANT,
2) The product is DEFECTIVE,
3) The product was NOT SUBSTANTIALLY ALTERED, and
4) Plaintiff was making a FORESEEABLE USE of the product

109
Q

Strict Liability: Products Liability - Merchant Requirement (Commercial Lessor v. Service Provider) + Distribution Chain

A

Commercial lessors (renting products, such as rental car company) IS a merchant for strict liability purposes. However, a service provider (e.g., doctor) is NOT a merchant.

The ENTIRE DISTRIBUTION chain can be found liable (distributor, wholesaler, manufacturer, etc.)

110
Q

Strict Liability: Products Liability - Defective Product Requirement - Types of Defect, Description, and Proving Liability + Government Safety Standards

A

1) Manufacturing defect - product departs from its intended design (plaintiff must show product failed to perform as safely as an ordinary consumer would expect)
2) Design defect - When all products are the same, but have dangerous propensities (plaintiff must show product could have been made safer by practical and feasible methods)

A products noncompliance with government safety standard establishes it is defective (but not vice versa)

3) Information defect - Failure to give adequate instructions or warnings as to the risk involved in using the product that may not be apparent (plaintiff must show warning was not prominent, comprehensible, or showing information about mitigating risk)

111
Q

Strict Liability: Products Liability - Leaving Defendant’s Control Requirement - Presumption

A

If the product moved through normal channels of distribution, it will be inferred that the product was not altered and that the defect existed when the product left the defendant’s control.

112
Q

Strict Liability: Products Liability - Foreseeable Use Requirement - Misuse

A

Foreseeable DOES NOT MEAN intended or appropriate, many products can be misused in ways that could be foreseeable (e.g., standing on chair)

113
Q

Strict Liability: Products Liability - Disclaimers

A

Disclaimers are IRRELEVANT in strict liability cases if personal injury or property damages occur.

114
Q

Nuisance: Private

A

A SUBSTANTIAL, UNREASONABLE INTERFERENCE with another private individual’s USE OR ENJOYMENT of property that the other individual actually possess or has a right of immediate possession.

115
Q

Nuisance: Private - Substantial Interference Standard

A

An interference is NOT substantial if it is merely the result of the plaintiff’s HYPERSENSITIVITY or specialized use of their property.

116
Q

Nuisance: Public + Recovery by Private Party

A

An act that UNREASONABLY INTERFERES with the health, safety, or property rights OF THE COMMUNITY (e.g., using building for prostitution).

A private party may recover if they suffered unique damages not suffered by the public at large.

117
Q

Nuisance: Remedies

A

1) Injunction

2) Abatement by Self-Help - available after notifying defendant and they refuse to act

118
Q

Vicarious Liability

A

Where a tortfeasor commits a tortious act and another person will be liable

119
Q

Vicarious Liability: Employer-Employee + Frolic and Detour

A

An employer will be vicariously liable for tortious acts committed by their employee if the tortious acts occur within the SCOPE OF EMPLOYMENT

An employee making a MINOR deviation from their employer’s business is acting WITHIN THEIR SCOPE OF EMPLOYMENT, but if substantial deviation in time or geographic area, the employer is NOT LIABLE.

120
Q

Vicarious Liability: Employer-Employee - Liability for Intentional Torts + Exceptions

A

Intentional torts from employees is NOT within the scope of employment

Exceptions:

1) Employee is furthering the business of the employer (e.g., removing people from store)
2) force is AUTHORIZED (e.g., bouncer)
3) the situation is likely to arise from the employment (e.g., repo man)

121
Q

Vicarious Liability: Independent Contractor

A

The hiring party will NOT be vicariously liable for the tortious acts of an independent contractor, UNLESS working on the premises and hurts a customer (e.g., keeping premises safe)

122
Q

Vicarious Liability: Partner and Joint Ventures

A

Each member of a partnership is vicariously liable for the tortious conduct of another member committed in the SCOPE and COURSE of the partnership

123
Q

Vicarious Liability: Automobile Owner General Rule

A

Generally, an automobile owner is NOT vicariously liable for the tortious acts of another person driving their automobile

124
Q

Vicarious Liability: Automobile Owner General Rule - Family Car Doctrine

A

The owner is liable for tortious conduct of IMMEDIATE family or household members who are driving the the owner’s express or implied permission.

125
Q

Vicarious Liability: Tavernkeepers (Common Law v. Modern Law)

A

Common law - NO liability imposed on vendors of intoxicating beverages for injuries resulting from the patron’s intoxication

Modern law (Dramshop Acts) - Any third person injured from an intoxicated person may sue the tavernkeeper if found ordinarily negligent (not vicarious liability)

126
Q

Multiple Defendants: Joint and Several Liability

A

Under traditional common law, when two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor can be held jointly and severally liable, meaning any one can be responsible for ALL DAMAGES.

127
Q

Multiple Defendants: Contribution

A

Contribution allows a defendant under joint and several liability to claim against other jointly liable parties for the excess.

128
Q

Multiple Defendants: Indemnification

A

Involves shifting the ENTIRE LOSS between or among tortfeasors (i.e., vicarious liability or strict products liability)

129
Q

Loss of Consortium: Between Spouses

A

Either spouse may bring an action for indirect interference with consortium and services caused by the defendant’s intentional or negligent tortious conduct against the other spouse

130
Q

Loss of Consortium: Parent-Child + Injury to Parents

A

A parent may maintain an action for loss of a child’s services and consortium as a result of the defendant’s tortious conduct.

However, a child HAS NO ACTION against one who tortiously injures their parent.

131
Q

Survival Acts

A

Allows one’s cause of action to survive the death of one or more of the parties for personal injuries

132
Q

Wrongful Death

A

Grants recovery for pecuniary injury resulting to the spouse and next of kin, recovery is allowed only to the extent the deceased could have recovered.

133
Q

Defamation Elements

A

The elements of defamation are:

1) A defamatory statement that SPECIFICALLY IDENTIFIES the plaintiff,
2) PUBLISHED to a third party,
3) DAMAGE to the plaintiff’s reputation,
4) FALSITY of the defamatory language, and
5) FAULT on part of the defendant.

134
Q

Defamation: Defamatory Statement

A

A defamatory statement is one tending to adversely affect one’s reputation

135
Q

Defamation: Deceased Persons

A

Any living person may be defamed, but defamation of a deceased person IS NOT ACTIONABLE

136
Q

Defamation: Statement Identifying Plaintiff - Colloquium

A

Extrinsic evidence may be offered to establish that the statement refers to the plaintiff.

137
Q

Defamation: Statement Identifying Plaintiff - Group Defamation (Small v. Large Group)

A

If the defamatory statement refers to ALL members of a SMALL GROUP, everyone has a claim, if a large group is referenced NOBODY has a claim.

138
Q

Defamation: Publication Requirement + Statement to Plaintiff

A

Publication means COMMUNICATION of the defamation to a THIRD PERSON who understands it, made either intentionally or negligently.

A statement ONLY TO THE PLAINTIFF cannot be publication, thus no defamation.

139
Q

Defamation: Publication Requirement - Who May Be Liable? + Internet Service Providers

A

Primary publishers may be liable (e.g., newspapers, TV, etc.) to the same extent as the author or speaker.

An internet service provider IS NOT treated as a publisher when a user posts defamatory content.

140
Q

Defamation: Damage to Reputation Requirement (Libel v. Slander)

A

Libel - defamation embodied in a PERMANENT FORM (e.g., writing, printed publication, or radio). These are PRESUMED to have damages under the law.

Slander - Spoken defamation. Plaintiff must prove SPECIAL DAMAGES, UNLESS it falls within the slander per se categories.

141
Q

Defamation: Damage to Reputation Requirement - Defamation Per Se

A

1) Adversely reflect on plaintiff’s BUSINESS or PROFESSION,
2) State that plaintiff has committed a SERIOUS CRIME involving moral turpitude,
3) SERIOUS SEXUAL MISCONDUCT, and
4) LOATHSOME DISEASE

142
Q

Defamation: Falsity Requirement - Public Official or Figure + Private Persons

A

Plaintiff must prove falsity.

1) Public Official or Figure - Actual malice must be proven (KNOWLEDGE statement was false or RECKLESS DISREGARD as to whether it was false)
2) Private Persons - Must prove negligence if matter of PUBLIC CONCERN.

143
Q

Defamation: Defenses - Consent

A

Consent is a complete defense

144
Q

Defamation: Defenses - Truth

A

Defendant may prove truth as a complete defense

145
Q

Defamation: Defenses - Absolute Privilege

A

The defendant may be protected if:

1) communications BETWEEN SPOUSES,
2) Remarks made during JUDICIAL PROCEEDINGS, by LEGISLATORS during proceedings, or federal EXECUTIVE OFFICIALS in compelled broadcasts

146
Q

Defamation: Defenses - Qualified Privilege

A

Arises only when there is a PUBLIC INTEREST IN ENCOURAGING CANDOR (references and recommendations), and can be lost through abuse.

147
Q

Invasion of Right to Privacy: Types of Wrong

A

1) APPROPRIATION of the plaintiff’s picture or name,
2) INTRUSION of plaintiff’s privacy
3) Publication of facts placing plaintiff in FALSE LIGHT, or
4) PUBLIC DISCLOSURE OR PRIVATE FACTS

148
Q

Invasion of Right to Privacy: Appropriation of Plaintiff’s Picture or Name + Newsworthiness

A

Must show UNAUTHORIZED USE of the plaintiff’s picture or name for the defendant’s COMMERCIAL ADVANTAGE.

A newsworthy application of name or image is an EXCEPTION (e.g., picture in newspaper)

149
Q

Invasion of Right to Privacy: Intrusion on Plaintiff’s Affairs or Seclusion

A

Forbids acts such as EAVESDROPPING, SPYING, or INTERCEPTION OF PHONE CALL, that is PRIVATE and HIGHLY OFFESNIVE to a reasonable person.

150
Q

Invasion of Right to Privacy: Publication of Facts Placing Plaintiff in False Light + Matters of Public Interest

A

Where one attributes to the plaintiff views they DO NOT HOLD or actions they DID NOT TAKE, and it is HIGHLY OFFENSIVE to a reasonable person.

If a matter of public interest, ACTUAL MALICE must be proven.

151
Q

Invasion of Right to Privacy: Public Disclosure of Private Facts About Plaintiff

A

Public disclosure of PRIVATE INFORMATION about the plaintiff that is HIGHLY OFFENSIVE to a reasonable person, EVEN IF TRUE.

152
Q

Misrepresentation: Intentional Misrepresentation (Fraud, Deceit)

A

To establish a prima facie case for intentional misrepresentation requires:

1) MISREPRESENTATION of a material past or present fact,
2) SCIENTER (defendant knew or believed it was false)
3) INTENT to induce the plaintiff to act in reliance,
4) CAUSATION (actual reliance)
5) JUSTIFIABLE RELIANCE
6) DAMAGES

153
Q

Misrepresentation: Duty to Disclose + Exceptions

A

There is NO GENERAL DUTY to disclose a material fact, UNLESS defendant: (i) stands in a FIDUCIARY RELATIONSHIP, (ii) selling REAL PROPERTY, or (iii) their communications deceive the plaintiff

154
Q

Misrepresentation: Third Party Reliance

A

If a third party relies on the defendant’s misrepresentation, the defendant will be liable if they could reasonably foresee that the third party would rely.

155
Q

Misrepresentation: Negligent Misrepresentation Elements + Typical Setting This Comes In

A

1) MISREPRESENTATION by defendant in a business or professional capacity,
2) BREACH,
3) CAUSATION
4) JUSTIFIABLE RELIANCE,
5) DAMAGES

Generally, this action is confined to misrepresentations made in a COMMERCIAL SETTING

156
Q

Interference with Business Relations Elements

A

To establish a prima facie case for interference with business relations, the following elements must be proved:

1) Existence of a VALID CONTRACTUAL RELATIONSHIP between the plaintiff and third party OR VALID BUSINESS EXPECTANCY
2) Defendant’s KNOWLEDGE of the relationship,
3) INTENTIONAL INTERFERENCE, and
4) DAMAGES

157
Q

Interference with Business Relations - Privilege + Common Examples

A

The defendant’s conduct may be privileged if it is a proper attempt to obtain business for itself or protect its interests

Common examples: (i) defendant interferes with POTENTIAL business, (ii) uses COMMERCIALLY ACCEPTABLE MEANS, (iii) responding to THIRD PARTY’S REQUEST

2022 Delaware Bar Exam (22 decks)

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