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FRO Rules > Torts MBE > Flashcards

Torts MBE Flashcards

1
Q

Torts in general

A
  1. Tortious conduct—voluntary act/failure to act
  2. Requisite mental state—purposeful (or reckless for IIED), or defendant (D) knows the consequence is substantially certain
  3. Causation—resulting harm legally (i.e., factually and proximately) caused by D’s conduct * Second Restatement (R2d) elements: act, intent, causation
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2
Q

Battery

A
  1. D intends to cause contact with plaintiff’s (P’s) person (or anything connected to P’s person) * Transferred intent applies * Single-intent rule (majority rule)—D may be liable if D (i) intends to bring about the contact; D need not intend (ii) that the contact is harmful or offensive * Double-intent rule (minority rule)—D must (i) intend to bring about a contact, and (ii) intend that the contact be harmful or offensive
  2. D’s conduct causes such contact * Indirect contact counts * D’s conduct must be voluntary and affirmative
  3. The contact causes bodily harm or is offensive to P * Harmful: physical injury, illness, disease, impairment, death * Offensive: reasonable-person standard (objective), or when D knows that the contact is highly offensive to P’s sense of personal dignity
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3
Q

Assault

A

D intends to cause P to anticipate imminent, harmful and offensive contact, and D’s affirmative conduct causes P to anticipate such contact

  1. Anticipated contact—no actual contact required; P must be aware of D’s acts; anticipated contact must be harmful or offensive * R2d uses “apprehend”
  2. Imminence—threats of future harm or threats made by D who is physically too far away do not usually satisfy this requirement
  3. Intent—subject to transferred intent
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4
Q

IIED

A
  1. Intent or recklessness * D, by extreme and outrageous conduct, intentionally/recklessly causes P severe emotional distress * Transferred intent does not apply to IIED when D intended to commit a different intentional tort (e.g., battery) against a different victim (instead governed by the “bystander” rule for third-party victims) * Transferred intent may apply to IIED if, instead of harming the intended person, D’s extreme and outrageous conduct harms another
  2. Extreme and outrageous conduct by D (beyond human decency, outrageous)
  3. Public figures/concerns (public figures must show falsity and actual malice; private P cannot recover if issue was of public concern)
  4. Emotional harm caused by harm to third party (distresses member of victim’s immediate family—with or without resulting bodily injury—or other bystander resulting in bodily injury)
  5. Causation (factual-cause test)
  6. Damages—severe emotional distress (beyond reasonable person’s endurance or D knows of P’s heightened sensitivity)
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5
Q

False Imprisonment

A
  1. D intends to confine another within a limited area, D’s conduct causes P’s confinement or D fails to release P from confinement despite a duty to do so, and P is conscious of the confinement
  2. Confinement—limited area or when P is compelled to move in a highly restricted way (e.g., physical barriers or force, threats, invalid use of legal authority, duress, failure to provide means of escape)
  3. Length of confinement—immaterial except as to amount of damages
  4. Intent—purposeful act or knowing confinement is substantially certain to result
  5. Damages—majority: actual damages unnecessary, P can recover nominal and possible punitive damages; minority: actual damages necessary only if P was unaware of confinement
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6
Q

Defense to Intentional Tort–Consent

A

—D not liable if P gave legally effective consent (i.e., actual, apparent, or presumed, or there was an emergency)

  1. Actual (express)—P is willing for the conduct to occur; revoked by clear communication
  2. Apparent—D reasonably believes that P actually consents
  3. Presumed (implied)—D is justified based on prevailing social norms or D has no reason to believe P would not actually consent if D had requested consent
  4. Emergency—usually medical, purpose of conduct is to prevent/reduce risk to P’s life/health * Third Restatement (R3d) uses actual and presumed consent; R2d.uses express and implied consent
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7
Q

Defense to intentional Tort–Self-Defense

A

—D must reasonably believe that the force is (i) necessary and (ii) proportionate to the force P is intentionally inflicting

  1. Defensive purpose—D’s force must be defensive, but defense need not be D’s sole motive for force
  2. Nondeadly force—D reasonably believes that (i) P’s force is intentional and unprivileged, (ii) D’s force is proportional, and (iii) D can prevent P’s force/threat only by immediate force
  3. Deadly force—D reasonably believes that (i) P’s force is intentional and unprivileged, (ii) D is at risk for death/serious bodily harm/rape, and (iii) D can prevail only by immediate use of deadly force
  4. No duty to retreat (majority)—before using force, including deadly force, in defense
  5. Withdrawal—if P withdraws, D no longer has privilege to use force
  6. Initial aggressors—generally not entitled to claim self-defense
  7. Not liable for injuries to bystanders—D may use nondeadly force against a bystander if (i) the force P is using against D is substantially greater than the force D uses against the bystander, and (ii) D’s use of force against the bystander is immediately necessary
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8
Q

Defense of third persons

A
  1. Reasonable belief that defended party entitled to use force to defend self
  2. Immediately necessary
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9
Q

Defense of property

A
  1. D privileged to act to prevent P’s imminent intrusion if: * P’s intrusion is not privileged; * D reasonably believes that P is intruding/about to intrude and D can prevent it by means used; * D asks P to stop or such request would be useless/dangerous; * Means used are reasonably proportionate to value of interest protecting; and * Means used are not intended to/likely to cause death/serious bodily injury
  2. No deadly force allowed—including deadly traps
  3. No force allowed to reclaim real or personal property wrongfully taken—must use legal action (e.g., eviction); personal property subject to “fresh pursuit” exception
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10
Q

Discipline or control of minor child

A
  1. Parents—reasonable force/confinement ok considering child’s age and gravity of behavior; privilege may extend to one acting in loco parentis
  2. Educators—reasonably force ok to maintain order/safety
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11
Q

Protect individuals from self-harm (mental impairment)

A

D may use force against another if (i) D reasonably believes it necessary to protect that person from death/serious bodily harm and (ii) that person does not understand nature/consequences of her actions

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12
Q

Privilege of arrest and other crime-related conduct

A
  1. Private actor
    * Felony arrest—ok if crime was actually committed and reasonable to suspect the person arrested committed it
    * Misdemeanor arrest—majority rule: only if committed in presence of arresting party and if breach of peace; R3d: only if misdemeanor creates a substantial risk of bodily harm and private actor reasonably believes police will not be able to prevent/terminate crime
    * Assisting police—ok if private actor reasonably believes police need help and police conduct is/could be privileged
    * Intervenor—force ok against an intervenor intentionally impeding actor’s privileged conduct/aiding arrestee to resist/escape
  2. Law enforcement officials
    * Privileged to use force/threat/confinement to (i) arrest, (ii) investigate/terminate/prevent crime, or (iii) enforce the law; off-duty officer is a private actor
  3. Use of force—private actor/police can only use force if (i) reasonably necessary and proportionate, (ii) for a legitimate purpose, (iii) in the context of arrest, intent to arrest is communicated prior to force (unless communication would be useless)
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13
Q

Merchant’s privilege

A

seller of goods/services privileged to use force for the purpose of (i) investigating potential theft, (ii) recapturing personal property, or (iii) facilitating arrest
1. Merchant must reasonably believe that the other has taken merchandise or failed to pay for purchase
2. Merchant’s use of force must be (i) on or immediately near merchant’s premises, (ii) reasonable, and (iii) of reasonable duration; deadly force not ok

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14
Q

Trespass to chattels (tangible personal property)

A
  1. Intentional interference with P’s right of possession by either— * Dispossessing or * Using or intermeddling with P’s chattel
  2. Only intent to do the act is necessary—transferred intent applies
  3. Mistake of law or fact—not a defense
  4. Damages—actual, loss of use, and nominal damages; no loss of use damages without dispossession; compensation for diminished value or cost of repair
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15
Q

Conversion

A
  1. Intentional act * Must only intend to commit the act that interferes (intent to damage not necessary) * Mistake not a defense * Transferred intent does not apply; must intend to control the particular chattel
  2. Interference with P’s right of possession (exercising dominion or control)
  3. So serious (based on duration/extent, intent to assert a right, D’s good faith, extent of harm and P’s inconvenience) that it deprives P of the use of the chattel
  4. Damages (full value of property or replevin)
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16
Q

Trespass to Land

A
  1. Intent to enter land or cause physical invasion, not to trespass; transferred intent applies
  2. Physical invasion of property
  3. Proper P—anyone in actual or constructive possession of land
  4. Necessity as defense to trespass
    * Private—qualified privilege for limited number of people to enter or remain on land to protect own person/property from serious harm; not liable for trespass but responsible for actual damages
    * Public—unqualified/absolute privilege to avert imminent public disaster; not liable for damage if actions reasonable or reasonable belief that necessity existed, even if initial entry not necessary
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17
Q

Nuisance

A
  1. Private—substantial and unreasonable interference with another’s use or enjoyment of his land
    * Proper P—anyone with possessory rights in real property or members of that household
    * Interference must be intentional, negligent, reckless, or result of abnormally dangerous conduct
    * Substantial—offensive to average reasonable person in the community (objective)
    * Unreasonable—effectively renders the land unavailable for ordinary use, is a per se nuisance, does not comport with customs/expectations, results from failure to use reasonable care, causes physical damage to land/fixtures, or is motivated by malice
    * Defenses to private nuisance
    o Regulatory compliance—incomplete defense; admissible but not determinative
    o Coming to the nuisance—does not entitle D to judgment as a matter of law but jury may consider
    * Failure to abate natural condition—D liable when the natural condition creates risk of harm, risk is known/obvious, D fails to take steps to address risk, and the natural condition causes substantial and unreasonable interference with P’s land
  2. Public—unreasonable interference with a right common to the general public; defenses in private nuisance generally applicable
    * Proper P—private citizen suffering harm different in kind from general public
  3. Remedies—damages; injunctive relief (balance the equities)
  4. Abatement
    * Private—Reasonable force permitted to abate; must give D notice of the nuisance and D refuses to act IV.
    * Public—Absent unique injury, public nuisance may be abated only by public authority
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18
Q

Negligence

A

—failure to exercise care a reasonable person would exercise; breach of the duty to prevent foreseeable risk of harm to anyone in P’s position; breach must be the cause of P’s injuries

  1. Duty (obligation to protect another against unreasonable risk of injury)
  2. Breach (failure to meet that obligation)
  3. Causation (close causal connection between action and injury)
  4. Damages (harm suffered)
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19
Q

Negligence - Duty

A

owed to all foreseeable persons who may be injured by D’s failure to meet reasonable standard of care; foreseeability of harm to another sufficient to create general duty to act with reasonable care

  1. Failure to act—generally no duty to act
  2. Foreseeability of harm to P * Cardozo—D only liable to Ps within the zone of foreseeable harm (Palsgraf majority rule) * Andrews—if D can foresee harm to anyone resulting from his negligence, D owed duty to everyone harmed (foreseeable or not) (minority rule)
  3. Special foreseeable Ps * Rescuers—D liable for negligently putting rescuer/rescued party in danger o Can apply comparative responsibility if rescuer’s efforts are unreasonable o Emergency professionals barred from recovery if injury results from risk of the job (“firefighter’s rule”) * Fetuses—duty of care owed to fetuses viable at time of injury
  4. Affirmative duty to act—exceptions to general rule that there is no duty to act * Assumption of duty * Placing another in peril * By contract * By authority * By relationship (e.g., employer-employee, parent-child, common carrier-passenger) * By statute imposing an obligation to act
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20
Q

Reasonably prudent person

A

objective standard

  • Physical (not mental) characteristics are considered in determining reasonableness
  • Defendant who possesses special skills or knowledge must exercise her superior competence with reasonable attention and care
  • Voluntarily intoxicated person held to same standard as sober person
  • Child—reasonable child of similar age, intelligence, and experience o But child engaged in high-risk adult activity held to adult standard o Children under age of five generally found incapable of negligent conduct
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21
Q

Standards of care for specific classes of Ds

A
  • Common carriers (planes, trains, buses)—highest duty of care consistent with practical operation of the business (majority)
  • Innkeepers—ordinary negligence (majority); “slight negligence” (common law)
  • Automobile drivers—absent “guest statute” (minority—refrain from wanton & willful misconduct), ordinary care to guests as well as passengers (majority)
  • Bailor o Gratuitous—duty to warn bailee of known dangerous defects o Compensated—duty to warn bailee of defects that are known or should have been known by the bailor had he used reasonable diligence
  • Bailee o Gratuitous—liable only for gross negligence o Compensated—must exercise extraordinary care o Mutual benefit—must take reasonable care
  • Sellers of real property—duty to disclose known, concealed, unreasonably dangerous conditions; liability to third parties continues until buyer has a reasonable opportunity to discover and remedy defect
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22
Q

Duty of Care to Trespassers

A

Trespassers (traditional/majority approach)—refrain from willful, wanton, reckless or intentional misconduct toward trespassers; no “spring-guns”

o Discovered—warn or protect against concealed, dangerous, artificial conditions

o Undiscovered—generally no duty unless owner should reasonably know that trespassers are entering land, then same duty owed a licensee (majority)

o Attractive nuisance—liable for injuries to trespassing children if artificial condition poses unreasonable risk of serious bodily injury, children cannot appreciate the danger, burden of eliminating danger slight compared to risk of harm, and owner fails to exercise reasonable care to protect children

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23
Q

Duty of Care to Invitee

A

Invited to enter for purposes for which the land is held open or for business purposes

o Reasonable care to inspect, discover dangerous conditions, and protect invitee from them; nondelegable duty

o Duty does not extend beyond scope of the invitation

o Recreational land use (some jurisdictions)—possessor who opens land to public for recreation generally not liable for injuries sustained by recreational land users unless (i) charges a fee or (ii) acts willfully, maliciously, or with gross negligence

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24
Q

Duty of Care to Licensee

A

enters land of another with permission or privilege (social guest; emergency personnel)

o Warn of concealed dangers that are known or should be obvious

o Use reasonable care in conducting activities on the land

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25
Q

Land Possessor Duty of Care R3d Approach

A

minority

o Reasonable care under all circumstances; no invitee/licensee distinction

o Fact of trespass considered by jury in determining reasonable care

o Duty not to act in intentional, willful, or wanton manner causing physical harm is only duty owed to flagrant trespasser

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26
Q

Duty of Care - Landlords and Tenants

A

o Landlord liable for injuries occurring in common areas resulting from hidden dangers about which landlord fails to warn, on premises leased for public use, as a result of a hazard caused by negligent repair, or involving a hazard landlord agreed to repair

o Tenant liable for injuries to third parties due to conditions within tenant’s control

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27
Q

Duty of Care - Off-premises victims

A

o No duty for harm by natural condition (except rotting trees in urban areas)

o Duty to prevent unreasonable risk of harm caused by artificial condition

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28
Q

Duty of Care - Sellers of Real Property

A

Duty to disclose any concealed and unreasonably dangerous conditions

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29
Q

Negligence breach burden of proof

A

preponderance of the evidence

  • Greater probability than not that D failed to meet standard of care (as shown by custom/usage, statutory violation, or res ipsa loquitur)
  • Failure was proximate cause of injury and P suffered damages
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30
Q

Negligence Breach Traditional Approach

A

compare D’s conduct with what reasonably prudent person would do under the circumstances (objective)

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31
Q

Negligence breach modern and Restatement approach

A

cost-benefit analysis

consider (i) foreseeable likelihood that D’s conduct would cause harm, (ii) foreseeable severity of resulting harm, and (iii) D’s burden in avoiding the harm

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32
Q

Negligence breach custom

A
  • Evidence of custom is generally admissible but not conclusive in establishing proper standard of care
  • Professionals—expected to show same skill, knowledge, and care as an ordinary practitioner in same community; specialists may be held to higher standard o For professionals, deviation or compliance with custom is dispositive of breach o An expert must generally establish the standard of care unless negligence is so obvious that it would be apparent to a layperson (e.g., a surgeon amputating the wrong leg)
  • Physicians o Majority rule—national standard (including specialists) o Minority (traditional) rule—same or similar locale standard o Failure to comply with informed consent requirement is medical negligence (malpractice) unless risk is commonly known, patient is unconscious, patient waives or is incompetent, or disclosure too harmful
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33
Q

Negligence breach - negligence per se

A
  • Elements
    o Criminal or regulatory statute imposes a specific duty for protection of others
    o D neglects to perform the duty
    o D liable to anyone in the class of people intended to be protected by statute
    o For harms of the type the statute was intended to protect against
  • Causation—once the elements of negligence per se are established, D is liable for injuries that were proximately caused by D’s violation
  • Defenses o Compliance impossible or more dangerous than noncompliance o Violation reasonable under the circumstances o Statutory vagueness or ambiguity o Compliance with federal regulation preempts common-law tort action
34
Q

Negligence breach - res ipsa loquitur

A

(circumstantial evidence; doesn’t change standard of care; establishes an inference of negligence sufficient to avoid dismissal)

  • P’s harm would not have occurred if D used ordinary care (no injury would typically occur in absence of negligence); but P need not conclusively exclude all other possible explanations
  • P not responsible for injury (loosely applied in most comparative-fault jurisdictions)
  • P’s injury under D’s exclusive control o Modern trend favors generous interpretation of exclusivity o Many courts ignore exclusivity for product liability if manufacturer wrapped the package or it is clear that negligence took place during production o If many medical personnel had access to P during surgery in malpractice claim, some jurisdictions presume each D has breached a duty of care unless each D rebuts
35
Q

Negligence - Causation

A
  1. Cause in fact/actual cause—but for D’s conduct, injury wouldn’t have occurred; most courts require causal link; substantial-factor test for conduct of 2+ Ds or causes; if unclear, burden shifts to multiple Ds to prove each did not cause P’s harm
    * Joint and several liability—may apply if 2+ Ds are each a factual cause of indivisible injury or Ds acted with common plan or design
    * Loss of Chance—applies in some jurisdictions if P’s chance of recovery was <50% before D’s conduct; can recover percentage of total damages equal to difference between chance of recovery before and after D’s negligence
  2. Proximate cause/scope of liability
    * Limitation on liability o Foreseeability—D liable for reasonably foreseeable consequences of a foreseeable type (majority); D liable for all direct consequences (minority/Andrews test) o Ps who can recover—P can recover if P was a foreseeable victim of D’s conduct (majority) or P’s harm was within scope of liability of D’s conduct (minority) o Eggshell-plaintiff rule—extent of damages need not be foreseeable
    * Intervening and superseding causes o Direct cause—uninterrupted chain of events from D’s act to P’s injury— foreseeability of type of harm does not necessarily preclude liability (majority) o Intervening cause—a cause of P’s harm that occurs after D’s tortious act o Superseding cause—breaks the chain of proximate causation; D not liable; unforeseeable intervening cause is a superseding cause (“Act of God;” criminal act; intentional tort of third party); negligent intervening acts are foreseeable (medical malpractice) and may lead to joint and several liability
36
Q

Negligence Damages

A
  1. Actual physical harm—must prove actual injury (bodily harm or property damage), not just economic loss; nominal damages and attorney’s fees not permitted in negligence actions * Parasitic damage—if tort caused physical harm, may add emotional distress damages (e.g., NIED claims)
  2. Compensatory damages—make the victim whole
  3. Duty to mitigate—not a duty to D, but may reduce P’s recovery
  4. Personal injury—past/future pain and suffering, medical expenses, lost wages/reduced future earnings; eggshell-plaintiff rule applies
  5. Property damage—generally, difference between fair market value before injury and immediately after; most courts allow cost of repair as alternative if cost of repair does not exceed value of property, or cost of replacement for household items
  6. Collateral source rule * Traditional rule—benefits from outside sources (P’s insurance) not credited against D’s liability; payment by D’s insurer are not from a collateral source and are credited against D’s liability * Modern trend—statutes have eliminated or substantially modified rule
  7. Punitive damages—clear/convincing evidence, malicious, willful & wanton, or reckless behavior; can include torts that inherently involve this state of mind or behavior; generally cannot exceed single-digit ratio to compensatory damages
37
Q

NIED

A
  • Zone of danger o P was within “zone of danger” (feared for safety); threat of physical impact caused emotional distress o Proof: Majority—emotional distress must be manifested by physical symptoms (e.g., nightmares, shock, ulcers); minority—allow recovery without a physical manifestation of harm
  • Bystander recovery o A P outside the zone of danger can recover if: (i) closely related to person injured by D; (ii) present at the scene; and (iii) personally observed or perceived the injury o Proof: Majority—requires physical symptoms (see above)
  • Special relationship o Most common examples are a mortician mishandling a corpse or a common carrier mistakenly reporting the death of a relative—no threat of physical impact or physical symptoms required
38
Q

Pure economic loss

A

only recoverable with related personal injury or property damage

39
Q

Wrongful death

A

—recoverable damages include loss of support, companionship, society, and affection, but not pain/suffering of P; recovery limited to what decedent could recover

40
Q

Survival actions

A

survival statute may permit representative of decedent’s estate to pursue any claims decedent would have had at time of death; may include pain/suffering

  • If survival and wrongful death actions permitted, no double recovery allowed
41
Q

Loss arising from injury to family member

A

—loss of consortium and society for physical/emotional injury to spouse or child

42
Q

Wrongful Life

A

minority allows action by child for failure to perform contraceptive procedure or diagnose congenital defect; damage limited to those attributable to disability

43
Q

Wrongful Birth

A

—if birth due to failed contraceptive procedure or diagnosis of defect, many states permit parents to recover medical expenses for caring for disabled child; some states allow mother to recover pain/suffering damages and medical expenses for labor

44
Q

Employer’s liability for employee’s torts

A
  • Occurs when employer has a right to control the means and methods of employee (otherwise, see IC)
  • Tort within scope of employment (acts employee is employed to do or acts intended to profit or benefit employer); not liable for intentional torts unless (i) force inherent to job (e.g., bouncer), (ii) employee motivated to benefit employer, or (iii) authorized to act/speak for employer and position provided opportunity for the tort (e.g., fraudulent contract as employer’s agent)
  • Employer may be liable for detour (minor deviation from scope) but not frolic (unauthorized and substantial deviation)
  • Direct liability—negligent hiring, training, supervision, or otherwise controlling an employee is employer’s negligence (not vicarious liability)
45
Q

Independent Contractors

A

employers generally not liable for IC’s torts, except for:

  • Vicarious liability for retention of control
  • Vicarious liability for abnormally/inherently dangerous activity or nondelegable duty
  • Vicarious liability for IC acting under apparent agency
  • Direct liability for negligent selection of independent contractor
46
Q

Business partners; joint enterprise participants

A

liable for tortious conduct of each other if committed within scope of business purposes

47
Q

Car Owners

A
  • Negligent entrustment of car or other object with potential for harm (if D knows/should know of driver’s or user’s negligent propensities)
  • Family-purpose doctrine (D liable for family members driving with permission) versus owner liability statutes (liable for anyone driving with permission)
48
Q

Parent/Child

A

vicarious liability only if child acted as parent’s agent, state statute applies, or if assumed liability on child’s driver’s license application for negligent driving

  • Primarily negligent if fails to exercise reasonable care to prevent minor child from intentionally or negligently harming third party if parent (i) can control child and (ii) knows or should know the necessity and opportunity for exercising such control
49
Q

Dram-shop Liability

A

many states recognize cause of action against seller of intoxicating beverages when a third party is subsequently injured due to buyer’s intoxication; most states only allow liability if buyer was minor or intoxicated at time of sale; many states extend to social hosts for injuries to intoxicated guest and/or third parties

50
Q

Government Immunity from Tort Liability

A
  • Federal—traditionally immune, but now immunity is limited by FTCA o Sovereign immunity not waived for enumerated torts, discretionary functions, gov’t contractor product liability (unless failed to warn or conform with gov’t specifications), and most traditional gov’t activities o Immunity waived for intentional torts committed by law enforcement officers
  • State—most states have waived sovereign immunity, at least partially, but acts vary o Municipalities/local gov’t agencies—usually governed by state tort claims acts; immunity traditionally attached only to governmental functions o Public-duty rule—no liability to any one citizen for municipality’s failure to fulfill a duty that owed to public at large, unless special relationship creates special duty
51
Q

Government Official Tort Immunity

A

—immunity applies if is performing discretionary functions entrusted by law unless acts with malice or improper purpose; no tort immunity for carrying out ministerial acts

  • Absolute immunity from personal liability—legislators performing their legislative functions, judges performing their judicial functions, prosecutors
52
Q

Intra-Family Tort Immunity

A

interspousal immunity extinguished in most states; parent-child immunity generally limited to core parenting activities

53
Q

Charitable Tort Immunity

A

—eliminated or capped in most states

54
Q

Sharing Liability among Multiple Ds

A
  1. Joint & several liability—(default for MBE) each D found liable for single indivisible harm liable for the entire harm
  2. Pure several liability—each D liable only for his proportionate share
  3. Satisfaction & release—no double recovery
  4. Contribution—tortfeasor who paid more than fair share of common liability generally can recover excess of fair share from joint tortfeasor; can recover no more than the joint tortfeasor would be liable to P for; not generally available for intentional tortfeasors
  5. Indemnification—shifting of loss from vicariously liable tortfeasor to primarily responsible party; may be based on agreement, equity, subsequent additional harm, or strict product liability
55
Q

Contributory Fault

A
  • P’s fault is complete bar to recovery (common law/traditional rule)
  • Not a defense to an intentional tort, gross negligence, or recklessness
  • Last clear chance rule—abolished in most jurisdictions; P may mitigate legal effect of own fault if D had last clear chance to avoid injuring P; D’s actual knowledge of P’s inattention required for liability to inattentive P; D liable to helpless P if knew or should have known of P’s helpless peril
56
Q

Comparative Fault

A
  • Pure—not a complete bar to recovery; P’s damages reduced by proportion that P’s fault bears to total harm
  • Partial o If P is less at fault than Ds combined, P’s recovery reduced by percentage of fault o If P is more at fault than Ds combined, P recovers nothing o If P and D are equally at fault, P recovers 50% of his total damages (in minority jurisdictions P recovers nothing if equally at fault)
  • Comparative fault will not reduce P’s recovery for intentional torts
57
Q

Assumption of the Risk

A
  • Traditionally—unreasonably proceeding in face of known, specific risk affects recovery
  • Contributory-negligence jurisdiction—no recovery
  • Comparative-fault jurisdiction—merely reduces recovery
  • Exculpatory clauses in contracts—unenforceable if (i) disclaims liability for reckless or wanton misconduct or gross negligence;(ii) gross disparity of bargaining power (iii) exculpated party offers services of great importance or practical necessity to public; (iv) subject to typical contractual defenses; or (v) against public policy o Generally, common carriers, innkeepers, and employers cannot disclaim liability for negligence
58
Q

Strict Liability

A

DAD (Dangerous activities, Animals, and Defective/dangerous products)

A. Elements
1. Absolute duty to make P’s person or property safe
2. Actual & proximate causation
3. Damages

59
Q

Abnormally dangerous activities

A
  1. Not commonly engaged in; inherent, foreseeable, and highly significant risk of harm (look to gravity of harm, inappropriateness of place, limited value of activity)
  2. S/L limited to harm expected from activity
60
Q

Animals

A
  1. Wild animals—R2d includes all animals not by custom devoted to the service of humankind where it is being kept; R3d excludes animals that pose no obvious risk of causing substantial personal injury * Owner/possessor is S/L for harm done by wild animal despite owner’s precautions to prevent harm, as long as harm arises from dangerous propensity characteristic of animal or about which owner has reason to know * Owner/possessor S/L for injuries caused by P’s fearful reaction to unrestrained wild animal 2. Abnormally dangerous animals * Owner/possessor S/L for injuries if knows or has reason to know of dangerous propensities abnormal for the animal’s category or species and harm results * Owner/possessor S/L for reasonably foreseeable damage caused by trespassing household pets if owner knows or has reason to know that the pet is intruding on another’s property in a way that has a tendency to cause substantial harm; general negligence standard applies if pet strays onto a public road and contributes to an accident there
  2. Trespassing animals—owner/possessor S/L for reasonably foreseeable damage caused by trespassing animal
61
Q

Defenses to Strict Liability

A
  1. Contributory negligence not a defense in contributory-negligence jurisdictions—does not bar recovery
  2. Comparative-fault jurisdictions—negligence may reduce P’s recovery under a S/L claim (R3d approach); courts divided, some do not allow reduction VI.
  3. Assumption of Risk/Knowing contributory negligence—bars recovery
  4. Statutory privilege—no S/L for D performing essential public services
  5. Trespassers—property possessor not S/L for injuries inflicted by his animals against a trespasser, except, in some jurisdictions, for injuries inflicted by a vicious watchdog
62
Q

Products Liability Negligence

A
  1. Duty—reasonable care owed to any foreseeable P by commercial manufacturer, distributor, retailer, or seller
  2. Breach—failure to exercise reasonable care in inspection/sale of product (i.e., defect would have been discovered if D was not negligent)
  3. Causation—factual & proximate
  4. Damages—actual injury/property damage, not pure economic loss
  5. Defenses—contributory/comparative negligence and A/R
63
Q

Strict Products Liability Elements

A
  • Product was defective (in manufacture, design, or failure to warn)
  • Defect existed when it left D’s control
  • Defect caused P’s injury when the product was used in a reasonably foreseeable way
64
Q

Defective Product

A

res ipsa may apply

  • Manufacturing defect—product does not conform to D’s own specifications
  • Design defect
    o Consumer expectation test—dangerous beyond expectation of ordinary consumer
    o Risk-utility test—risks > benefits and reasonable alternative design (economically feasible) available; failure to use that design rendered product unreasonably unsafe
  • Failure-to-warn defect
    o (i) Foreseeable risk of harm, (ii) not obvious to ordinary user of product, and (iii) risks could have been reduced or avoided with reasonable instructions or warnings
    o Learned-intermediary rule—manufacturer of prescription drug or medical device typically satisfies duty to warn by warning prescribing physician of problems with the drug/device, unless (i) manufacturer knows drug/device will be dispensed without personal intervention or evaluation of a healthcare provider, or (ii) in the case of birth control pills
65
Q

Strict Products Liability Plaintiff

A

not required to be in privity of K; anyone foreseeably injured may recover

66
Q

Strict Products Liability Defendants

A

must be in the business of selling (includes manufacturer, distributor, and retail seller)

  • If D provides both products and services, generally liable if product is consumed, not if product is only used (i.e., hospital not generally liable as a distributor of defective implants)
  • Casual sellers, auctioneers, P’s employer, and service providers generally not S/L
  • Retail distributors of a prescription drug/device may be liable for own negligence, but only S/L for manufacturing defects
67
Q

Strict Products Liability Damages

A

—personal injury or property damage, pure economic loss must be brought under warranty action

  • “Market share” liability—for fungible defective products produced by multiple manufacturers, jury can apportion damages based on manufacturer’s market share
68
Q

Strict Products Liabilities Defenses

A
  • Comparative fault—P’s negligence reduces recovery as will A/R (majority)
  • Contributory negligence—P’s negligence not a defense if P misused product in reasonably foreseeable way or negligently failed to discover defect
  • A/R—complete bar to recovery in contributory-negligence jurisdictions; in most comparative-fault jurisdictions A/R only reduces recovery
  • Unforeseeable misuse, alteration, or modification by the user precludes (most contributory-negligence states) or reduces (most comparative-fault states) recovery
  • Compliance with governmental safety standards—not conclusive evidence that product is not defective, but may be considered
  • State-of-the-art standard—product conforms with level of scientific, technological, safety knowledge existing and reasonably feasible when product was distributed; compliance with state-of-the-art standard will only bar recovery in some states; n/a to manufacturing defect claims
  • Statute of limitations—begins to run against P with personal injury when P discovers, or should discover with reasonable care, his injury and its connection to the product
  • Unforeseeable intervening causes
69
Q

Warranties

A

(against seller, manufacturer, and distributor of product)

70
Q

Implied Warranties

A
  • Merchantability—product is generally acceptable and reasonably fit for ordinary purpose
  • Fitness—product fit for particular purpose; seller must know purpose and buyer must rely on seller’s skill or judgment in supplying product
  • Privity requirements
    o Alternative A (majority)—allows a member of the buyer’s family/household to recover for personal injury (not property damage or pure economic loss)
    o Alternative B—anyone reasonably expected to use, consume, or be affected by the product may recover for personal injury only
    o Alternative C—Alternative B + recovery for property damage and economic loss
  • Damages—personal injury; property damage; pure economic loss
71
Q

Express warranties

A
  • Affirmation of fact or a promise about product; part of the basis of bargain
  • Seller liable for any breach of express warranty, regardless of fault
72
Q

Warranty Defenses

A
  • Disclaimers
    o Consumer goods—limitation of consequential damages for personal injury is unconscionable
    o Express warranties—valid only if consistent with warranty (usually not)
  • Comparative fault and A/R—same as in S/L claims
  • Contributory negligence—not a bar except when it overlaps A/R
  • Misuse—prevents recovery under the implied warranty of merchantability when the product is warranted to be fit for ordinary purposes (majority)
  • Claim generally fails if P fails to provide seller with notice of breach of warranty within the statutorily required time period or “a reasonable period of time”
73
Q

Defamation - Elements

A
  • Defamatory language—diminishing respect, esteem, or goodwill toward P
  • Of or concerning P—reasonable third party believes language refers to particular P
  • Publication—intentional or negligent communication to third party who understands defamatory nature; republication identifying original speaker and uncertainty as to accuracy of the statement still may satisfy this element
  • Falsity (public concern) o If statement relates to matter of public concern or P is a public figure, P must prove defamatory statement is false o Private P suing on a statement that does not involve matter of public concern not required to prove falsity; D may prove truth as an affirmative defense
  • Fault
    o Public figure—actual malice (D knows of falsity/reckless disregard of truth)
    o Private figure/matter of public concern—D acted with fault; either negligence or actual malice
    o Private figure/not matter of public concern—at least negligence
74
Q

Defamation - Libel/Slander Distinguished

A
  • Libel—written, printed, or otherwise recorded in permanent form; general damages that compensate P for harm to reputation (generally includes radio and television)
    o Common law allowed recovery for presumed damages
    o Libel per quod—if defamatory statement requires proof of extrinsic facts to show it is defamatory, P must prove either special damages or a category of slander per se
  • Slander—spoken word, gesture, or any form other than libel; special damages or slander per se required; third party heard comments and acted adversely to P; usually, but not always, economic loss
  • Slander per se—no special damages required if accused of committing a crime, conduct that reflects poorly on P’s fitness to conduct trade or profession, loathsome disease, sexual misconduct; general damages then permitted as parasitic damages
75
Q

Defamation - Constitutional Limitation on Damages

A
  • Private person/matter of public concern—actual malice required for punitive or presumed damages
  • Private person/not public concern— actual malice not required for punitive or presumed damages
76
Q

Defamation Defenses

A
  • Truth
  • Consent—cannot exceed scope
  • Absolute privilege—for remarks: (i) during judicial/legislative proceedings (generally must be made by participants and related to proceedings); (ii) by legislators or federal/state executive officials in course of official duties; (iii) between spouses; or (iv) in required publications
  • Qualified privilege—affecting important public interest, in the interest of D or third party; privilege is lost if abused; burden on D to prove privilege exists; burden on P to prove privilege abused and lost
77
Q

Invasion of Privacy

A

I FLAP (Intrusion, False Light, Appropriation, Private facts)

  1. Applies only to individuals, terminates upon death
  • Intrusion upon seclusion—D’s intentional intrusion into P’s private affairs, highly offensive to a reasonable person (no publication required)
  • False light—publication of facts about P or attributing views/actions to P that place him in false light objectionable to a reasonable person under circumstances; truth not always a defense; in matters of public interest, P must show malice
  • Misappropriation—unauthorized use of P’s picture or name for D’s advantage; lack of consent; injury (some states allow action to survive death)
  • Public disclosure of private facts—public disclosure of private facts (even if true) about P that would be highly offensive to a reasonable person and is not of legitimate concern to the public; in tension with First Amendment—disfavored tort
  1. Damages—proof of emotional/mental distress enough, special damages not required
  2. Defenses—absolute/qualified privilege for false light/public disclosure; consent applies to all types of privacy torts, but any mistake re: consent negates defense; truth not a defense
78
Q

Intentional Misrepresentation

A
  1. False representation of material fact, opinion, intention, or law—generally no duty to disclose
  2. Scienter—knowledge or reckless disregard of truth
  3. Intent to induce P to act or refrain in reliance on misrepresentation
  4. Causation—actual reliance
  5. Justifiable reliance—not justifiable if statement obviously false or lay opinion
  6. Damages—actual economic loss/consequential damages and punitive damages; no nominal damages; no damages for emotional distress
79
Q

Negligent Misrepresentation

A
  1. D provides false information to P as a result of D’s negligence in the course of D’s business or profession, and
  2. P justifiably relies on the information and incurs pecuniary damages as a result * P must be a member of a limited group for whose benefit the information is supplied* Information must be relied on in a transaction that D intends to influence or knows recipient intends to, or substantially similar transaction
  3. Defenses—standard negligence defenses
  4. Damages—reliance and consequential
80
Q

Intentional Interference with Business Relations

A
  1. Intentional interference with contract * D knew of valid contractual relationship between P and third party * D intentionally interfered with contract in a way that substantially exceeds fair competition and free expression, resulting in a breach and * Breach caused damages to P * Defenses—justified if motivated by health, safety, or morals; contract is terminable at will; D is business competitor
  2. Interference with prospective economic advantage (no contract) * More egregious conduct required for liability, should be independently tortious; violates federal or state law; improper conduct per balancing analysis * Business competitor will not be liable for encouraging switching business
  3. Theft of trade secrets * P owns valid trade secret (provides a business advantage) * Not generally known * Reasonable precautions to protect * D took secret by improper means
81
Q

Injurious Falsehoods

A
  1. Trade libel—malicious publication of derogatory statement relating to P’s title to business property/quality of products, and interference or damage to business relationships; proof of special damages required and mental suffering damages unavailable; truth and fair competition are valid defenses
  2. Slander of title—publication of false statement derogatory to P’s title to real property; malice; special damages as a result of diminished value in the eyes of third parties
82
Q

Wrongful Use of Legal System

A
  1. Malicious prosecution—intentional & malicious institution of legal proceeding for improper purpose; no probable cause; action dismissed in favor of the person against whom it was brought
    * Damages can include legal expenses, lost work time, loss of reputation, emotional distress
    * Judges and prosecutors have absolute immunity from liability
  2. Abuse of Process—use of legal process against P in a wrongful manner to accomplish a purpose other than that for which the process was intended; willful act; proof of damages required

FRO Rules (16 decks)

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