Torts: SL, Privacy

Question 1

Strict liability 3 categories:

Answer 1

1. Abnormally dangerous
2. Animals
3. Product

Question 2

Strict liability for abnormally dangerous activity

scope

Answer 2

D engaged in an abnormally dangerous activity is strictly liable for harm caused by the activity regardless of precautions taken.

Scope of liability: D is liable for the harm that flows from the risk that makes the activity dangerous. e.g. car with explosives blowing up vs. car with explosives hitting a pedestrian

Question 3

Strict liability: An activity is abnormally dangerous if

Answer 3

if it creates ∑

(a) foreseeable and
(b) highly significant risk of physical harm even with reasonable care and
(c) activity is not commonly engaged in.

Factors: Look for

• inherently dangerous (foreseeable, severity of harm)
• manner (appropriateness of the location) and
• utility (whether the act has any value to community)

Question 4

Strict liability: animals - 3 types

Answer 4

wild animals, animals with dangerous propensity, animals trespassing on others’ land.

Question 5

Strict liability: wild animals

Answer 5

Owners are strict liable for harm caused by the animal AS LONG AS harm arises from the animal’s dangerous propensities.

(incl. injury caused by fearful reaction to the sight of an unrestrained wild animal)

Question 6

Strict liability: wild animals and trespassers

Answer 6

© not strictly liable to a trespasser except for injuries caused by a vicious watchdog.

Question 7

Strict liability: animals known to have dangerous propensities

Answer 7

Owner strictly liable for harm caused by animals if owner knew/had reason to know of dangerous propensities of a particular animal

Question 8

Strict liability: trespassing animals – damage to land

Answer 8

Owner strictly liable for reasonably foreseeable harm caused by his animal that’s trespassing on another’s land.

Question 9

Strict liability: trespassing pets

Answer 9

Owner strictly liable for harm caused by reasonably foreseeable damage caused by trespassing household pets if

(1) owner knew/had reason to know that the pet is intruding another’s property
(2) knew/had reason to know pet has a tendency to cause substantial harm.

Question 10

Defense to strict liability: contributory negligence

Answer 10

is not a defense to strict liability in contributory jurisdiction.

It may reduce recovery in comparative jurisdictions.

Question 11

Defense to strict liability: assumption of risk

Answer 11

Complete defense; bars recovery in both types of JX

Question 12

Defense to strict liability: trespassers

Answer 12

property owner not strictly liable against trespassers for animal-inflicted harm unless vicious watchdog

Question 13

Strict product liability elements:

Answer 13

P must show

(1) product was defective
(2) defect existed when the product left D’s control
(3) defect caused P’s injury when the product was used in a reasonably foreseeable way

Question 14

Strict product liability standing

Answer 14

Plaintiff for product strict liability claims: anyone foreseeably injured by a defective product.

Question 15

Strict product liability defendant

Answer 15

Anyone in the business of selling

© service providers

© If D provides both product and services, S/L if product is consumed but not if only used

Question 16

Strict product liability: 3 ways a product can be defective

Answer 16

manufacturing, design defect, failure to warn.

Question 17

Manufacturing defect exists when

Answer 17

product does not conform to D’s own specifications

Question 18

Design defect exists when

Answer 18

(consumer expectation test) its less safe than the ordinary consumer would expect; or

(risk-utility test) if risks outweigh benefits and there is a reasonable alternative design

Question 19

Failure to warn defect exists when

Answer 19

(1) foreseeable risk of harm
(2) not obvious to ordinary user
(3) risk could’ve been avoided with reasonable instructions/warnings

Question 20

Learned intermediary rule:

Answer 20

An exception to failure to warn defect—manufacturer satisfies duty to warn by warning prescribers

© mfr knows drug will be publicly available

© If the manufacturer did not inform the doctor of the risks, the doctor’s failure to warn doesn’t relieve the manufacturer of liability.

Question 21

Defenses to strict product liability: misuse

Answer 21

Misuse: Not a defense if P misuse, modification or alteration was foreseeable. ← viewed as comparative fault

Question 22

Defenses to strict product liability: substantial change in product

Answer 22

complete defense

Question 23

Defense to strict product liability: compliance with gov’t standards

Answer 23

can be used but not conclusive evidence

© state of the art standard is a complete defense

Question 24

Defense to strict product liability: state-of-the-art standard

Answer 24

Can be a complete defense to design defect and warning defect, but not manufacturing defect.

Must prove that the state of technical and scientific knowledge, at the time when he put the product into circulation, was not such as to enable the existence of the defect to be discovered

Question 25

Defamation elements

Answer 25

(1) D made a defamatory statement
(2) that is of or concern the P
(3) published to a third party who understood its defamatory nature
(4) damage to P’s reputation results

Question 26

Defamation intent against private persons

Answer 26

Defamation intent: against private person (including matter of private and public concerns)– D must act with knowledge that the statement is false or with negligent disregard for its falsity.

Question 27

Defamation intent against public figures

Answer 27

D must act with actual malice (knowledge that the statement is false or with reckless disregard for its falsity).

Question 28

Defamation: falsity requirement

Answer 28

P must prove that defamatory statement is false if (1) the statement relates to a public concern or (2) P is a public figure

Proof of falsity not required if P suing on a private matter statement. But D may raise truthfulness as an affirmative defense.

Question 29

Defamation: defamatory language

Answer 29

Language is defamatory when it diminishes respect, esteem or goodwill toward P

Question 30

Defamation: of and concerning P

Answer 30

Of or concerning P means third party believes the language refers to particular P

Question 31

Defamation: damages requirement

Answer 31

If libel, P may recover general damages (i.e. recovery without proof of measurable harm)—harm to reputation is presumed.

If slander, P must prove special damages, unless slander per se.

Question 32

Defamation: slander per se

Answer 32

P does not need to prove special damages if P is

(1) accused of committing a crime,
(2) conduct that reflects on fitness to conduct trade/profession
(3) loathsome disease or
(4) sexual misconduct

Question 33

Defamation 4 defenses

Answer 33

Truth, consent, absolute privilege, qualified privilege

Question 34

Defamation defense: truth

Answer 34

A statement that contains slight inaccuracies may nevertheless be considered to be true and therefore not defamatory.

Question 35

Defamation defense: qualified/conditional privilege

Answer 35

Privileged if the defamatory statement is made

(1) In the interest of D (e.g. such as defending his reputation) or third party (e.g. recipient) ; or
(2) affects an important public interest

© can be lost if abused (by acting outside the scope of privilege or acting with malice)

Question 36

Defamation defense: absolute privilege

Answer 36

remarks used during judicial/legislative proceedings, btw spouses, or in required publications.

Cannot be lost.

Question 37

Defamation defense: consent

Answer 37

D’s reasonable belief that P consented to the defamatory communication (i.e. apparent consent) is a complete defense to defamation.

© A publisher who was told that P consented may be liable if reckless in accepting the third party’s statement

Question 38

Privacy tort — Misappropriation:

Answer 38

unauthorized use of P’s name, likeness or identity for D’s advantage (commercial or otherwise

Question 39

Intrusion upon seclusion:

Answer 39

(a) physical/nonphysical intrusion into
(b) (privacy interest) a matter over which P retained a privacy interest if the intrusion is
(c) (offensive) highly offensive to a reasonable person

Question 40

Public disclosure of private facts

Answer 40

actionable if

(a) D gave publicity to
(b) (private concern) a matter concerning another’s private life and not of legit public concern.
(c) (offensive) matter is a kind that would be highly offensive to a RP.

Question 41

Privacy tort: false light

Answer 41

P must prove

(1) D published facts about P or attributed views/actions to P that place him in a false light and
(2) are highly offensive to a reasonable person

Question 42

Tort: intentional misrepresentation elements

Answer 42

(a) D’s intentional misrepresentation
(b) D intent to induce the plaintiff’s reliance,
(c) P justifiable relied
(d) incurred actual economic damages.

Question 43

Tort: negligent misrepresentation elements

Answer 43

(a) D negligently gave false information,
(b) during the course of his business or profession,
(c) causing P to justifiably rely upon the information, and
(d) P is either

1. is in a contractual relationship with D; or
2. is a third party known by D as one for whose benefit the information is supplied.

© not liable if the third party’s use of the information is of a different character than the use for which the accountant provided the information.

Question 44

Tort: Intentional interference with business relations

Answer 44

To prove intentional interference with a contract, P must prove that

(a) a valid contract existed between P and 3d party,
(b) D knew of the contractual relationship,
(c) D intentionally interfered with the contract, causing a breach, and
(d) the breach caused damages to P

No need to show that the loss was substantial

intentionally interfere: e.g. if P was D’s competitor

Question 45

Defamation: publication element

Answer 45

Intent: Publication must be intentional or negligent. Re-publishing also counts.

Republication: independently liable, even if republisher identifies the originator of the statement and expresses a lack of truthfulness. © secondary publishers who merely disseminates (e.g. bookstores, newspaper vendors) liable only if they knew or should know of the defamatory statements in material.

Question 46

Malpractice claims

Answer 46

require a professional deviated from the standard of care that reasonable professionals in the field would’ve used in similar circumstances.

e.g. using defective product not necessarily malpractice if due care.