Torts review Flashcards
Standard elements for IIED
D acted intentionally and recklessly
D engaged in extreme and outrageous conduct
P suffered severe emotional distress
IIED when plaintiff is a public figure
D acted intentionally and recklessly
D engaged in extreme and outrageous conduct
P suffered severe emotional distress
D published a false statement of fact with actual malice
Negligent misrepresentation
Liability for negligent misrepresentation arises when
- D negligently provides P with false information in a commercial setting
- the P reasonably relies on that information and suffers pecuniary loss
OR
- D negligently provides P with false information under circumstances posing a risk of physical harm
- The P reasonably relies on that information and suffers physical harm
When is a principal liable for torts of independent contractor?
Vicarious liability will be imposed when the independent contractor’s work involves a nondelegable duty, which includes abnormally dangerous activities
In these instances, it doesn’t matter whether the principal retained the right to direct and control the independent contractor’s activities.
Blasting is always an abnormally dangerous activity pretty much
Battery
A D is liable for battery if the D intended to cause contact with the P’s person and the D’s affirmative conduct caused contact that was harmful or offensive to P
Transferred intent with battery
Under this doctrine, the intent requirement for battery is satisfied if the defendant:
- intended to cause contact with a third party but instead caused contact with the P (same tort, different person); or
- intended to commit an assault, but instead committed a battery (different tort, same person)
When is conduct extreme and outrageous for IIED purposes?
Conduct is extreme and outrageous if it exceeds the possible limits of human decency
Conversion
Conversion is an intentional exertion of dominion or control over P’s chattel that so seriously interferes with P’s ownership rights that D is liable for the fair market value of the chattel at the time of conversion
Damages for trespass to chattels vs. conversion
- Trespass to chattels: liable for actual damages - e.g., cost of repairs, loss of use, etc.
- Conversion: liable for fair market value of chattel at time of conversion
Compliance with industry custom and negligence
Courts may consider compliance with industry custom, but compliance with (or deviation from) custom is not conclusive on the issue of negligence. It’s just one factor considered by the fact finder
Modified (or partial) comparative negligence
When the plaintiff’s own negligence contributes to their harm, the plaintiff’s recovery is reduced by their proportionate share of fault and is barred if the plaintiff’s fault exceeds 50%
NOT DEFAULT ON MBE – ONLY APPLY IF SPECIFICALLY TOLD
Pure comparative negligence
When the P’s own negligence contributes to their harm, the P’s recovery is reduced by their proportionate share of fault
DEFAULT ON MBE – APPLY UNLESS TOLD OTHERWISE
Can service providers be subject to strict products liability claims?
No. Strict product liability claims can only be brought against commercial suppliers or sellers.
Those in the business of providing services are not subject to strict products liability
What happens in a pure comparative fault JDX when both parties are entitled to recover damages?
In pure comparative fault JDX, where both parties are entitled to recover, the P’s recovery is reduced (i.e., offset) by the D’s recovery
example: P is 70% at fault, D is 30% at fault. 10k in damages to P, 1k to D. P’s recovery will be reduced by her proportionate share of fault (10,000-7,000=3,000) and D’s recovery will be reduced by his proportionate share of fault (1,000-300=700). Since both parties are entitled to recovery, P’s recovery is reduced by the D’s recovery (3,000-700-2,300)
3 theories of recovery for NIED
- zone of danger
- bystander
- special situation
Zone of danger theory
NIED
Liability under this theory arises when
- D’s negligent conduct placed P in danger of immediate bodily harm and
- that danger caused the P serious emotional distress
When is a seller of land liable for negligence to people off the land for physical harm created by an artificial condition?
A seller of land remains liable for negligence to persons off the land for physical harm caused by an artificial condition that
- existed at the time of sale
- the seller knew or should have known existed and posed an unreasonable risk of harm to such persons
Strict liability for abnormally dangerous activitites
A defendant is strictly liable for physical harm caused by their abnormally dangerous activities, as long as that harm resulted from the dangers or hazards of the activity. Use of reasonable care is no defense
Wrongful birth claims
Allows parent to recover for the birth of an unhealthy child if they can prove
1. Doctor negligently failed to warn them of a subsatntial risk of birth defect; and
2. Had the parents known about the risk, the child would not have been conceived or born
Multiple tortfeasors acting pursuant to a common plan or design
i.e., illegal drag racing example
If multiple tortfeasors act pursuant to a common plan or design, and at least one of them causes the P’s harm, then all of them are jointly and severally liable.
I.e., you and B and illegally drag racing. B hits P with car and P is hurt. B can come after you for all of the recovery. This is because you were acting pursuant to a common plan (drag racing) and thus, you are jointly and severally liable
