Torts Review Flashcards
Regarding damages recoverable in negligence, what might result in a reduced recovery for a plaintiff?
Failure to mitigate damages; In property damage cases, the plaintiff has a duty to preserve and safeguard the property, and in personal injury cases, he has the duty to seek appropriate treatment to effect a cure or healing and to prevent aggravation.
What kinds of damages are recoverable in a wrongful death action?
The measure of recovery in wrongful death actions under most statutes allows recovery for loss of support, loss of companionship, etc.
In a strict liability case for products liability, who is the only defendant you may recover from?
commercial supplier : a manufacturer, retailer, assembler, or wholesaler
What is the effect of a pure comparative negligence policy?
recovery is allowed no matter how great the plaintiff’s negligence is
What is the effect of a partial comparative negligence policy?
a plaintiff will be barred from recovery if his negligence is greater than 50%
What must a plaintiff show to establish that a manufacturer’s negligence resulted in a design defect?
the plaintiff must show that those designing the product knew or should have known enough facts to put a reasonable manufacturer on notice about the dangers of marketing the product as designed.
Elements of CL defamation
(i) statement
(ii) About the P
(iii) Publisized / to a third person
(iv) Damage to the reputation of the plaintiff.
A prima facie case for intentional infliction of emotional distress requires…
(i) extreme and outrageous conduct;
(ii) Intent to cause the plaintiff to suffer severe emotional distress, OR recklessness as to the effect;
(iii) Causation; and
(iv) Damages - severe emotional distress.
Assault elements
(i) An act creating a reasonable apprehension of immediate harmful or offensive contact to the plaintiff’s person;
(ii) Intent to bring about apprehension
In a strict liability action in tort, what uses are manufacturers liable / not liable for?
Manufacturers must anticipate reasonably foreseeable misuses of a product, but a product manufacturer is not liable if the injury results from an unintended and unforeseeable misuse of the product.
What is a landowner’s duty to his neighbors when it comes to his own activities / his guests?
A landowner has a duty to exercise reasonable care with respect to his own activities on the land and to control the conduct of others on his property so as to avoid unreasonable risk of harm to those outside the property.
Elements of battery
(1) harmful or offensive contact (2) with the P’s person
To establish a prima facie case for ANY intentional tort, you must show…
(1) an act by D; (2) intent of D, (3) causation of the result to P from the D’s act
False imprisonment elements
(1) an act or omission on the part of the D that confines or restrains the P; (2) the P must be confined to a bounded area
What are the two most common tested methods of restraint that are NOT enough to legally confine or restrain?
moral pressure and future threats
What is extreme and outrageous conduct?
transcends all bounds of decency (could be (1) continuous; (2) committed by a certain D; committed against a certain P)
IIED to a 3rd party elements
Either the prima facie case elements OR (1) they were present when the injury occurred; (2) the distress resulted in bodily harm OR the plaintiff is a close relative; and (3) the D knew these facts
Elements of trespass to land
(1) physical invasion (2) of the P’s real property (no intent or damage req)
elements of trespass to chattels
(1) act by the D that (2) interferes with the plaintiff’s right of possession in a chattel
elements of conversion
(1) act by the D that (2) interferes with the plaintiff’s right of possession in a chattel so seriously that the D should pay the chattel’s full value to the P
Possible remedies for conversion?
Replevin or damages(fair market value at conversion)
Remedy for trespass to chattels?
actual damages from harm or loss of use
What are the defenses to intentional torts?
consent, self-defense, defense of others, defense of property, recapture of chattels, public necessity, private necessity
When may self-defense be used?
when one reasonably believes that they are being or are about to be attacked, they may use force as is reasonably necessary to protect against the injury (no duty to retreat)
When may defense of others be used?
one may use force to defend another when they reasonably believe that the other person could have(/had a right to) used force to defend themselves
When may defense of property be used?
After a request to desist/leave, one may use reasonable force. Cannot use once the tort has been committed - but may use in hot pursuit
Shopkeeper’s privilege elements
there must be (1) reasonable belief as to the theft (2) detention must be conducted in a reasonable manner), (3) detention must be for a reasonable time and only for investigatory purposes
How may you recover real property?
via an ejectment proceeding
How may you recover chattels?
only peacefully, once the tort has been committed
When may a D assert the defense of public necessity?
if they acted to avert an imminent public disaster
When may a D assert the defense of private necessity?
if they acted to prevent serious harm to a limited number of people
Elements for prima facie case of negligence
(1) D owed P a duty, (2) there was a breach of the duty (3) the breach was the actual and proximate cause of P’s injury, and (4) damages
What standard are children held to in negligence?
the standard of a child of like age, intelligence, and experience
What standard are professionals held to in negligence?
as possessing the knowledge and skill of an average member of the profession
What duty does a possessor of land owe to unknown trespassers?
No duty
What duty does a possessor of land owe to known (discovered or anticipated) trespassers?
Must warn of or make safe any conditions that are (1) artificial, (2) highly dangerous, (3) concealed, (4) known to the land possessor in advance