Torts

Question 1

Last Clear Chance Doctrine

Answer 1

Under the last clear chance, a plaintiff can recover despite their own contributory negligence.

Under this doctrine, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence. (so if other party had last clear chance to avoid the accident, they can’t use contributory negligence of other party as a defense.)

Question 2

Respondeat Superior

Answer 2

Under the doctrine of respondeat superior, an employer can be held liable for an employee’s torts if the tort was committed within the scope of the employment.

An act will be considered to have been within the scope of the employment if it was 1) expressly authorized by the employer, or of 2) the same general nature as the employee’s job and motivated by a desire to serve the employer.

Question 3

Causation

Answer 3

A person cannot be held liable in negligence unless the plaintiff can prove that the person was both the actual and proximate cause of the injury.

An act is an actual cause of an injury if the injury would not have occurred but for the act.

Proximate causation is a limitation on liability. The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. Furthermore, if a particular harmful result was at all foreseeable from the defendant’s negligent conduct, the unusual manner in which the injury occurred or the unusual timing of cause and effect is irrelevant to the defendant’s liability.

Liability generally is determined by a foreseeability test. (ASK: was this personal injury to X a foreseeable result to someone in the zone of danger? Even if the exact sequence of events might not have been foreseeable, an injury to X person was)

Question 4

Negligence

Answer 4

The prima facie case for negligence requires the plaintiff to show:
1) A duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury,
2) Breach of that duty by the defendant,
3) That the breach was the actual and proximate cause of the plaintiff’s injury; and
4) Damage to the plaintiff’s person or property

Question 5

Duty to Provide Aid

Answer 5

As a general rule, no duty is imposed on a person to come to the aid of another absent a special relationship between the parties.

However, if the person gratuitously comes to the aid of the other, the actor must exercise due care in providing the assistance, and must not leave the person in a worse position than he found her.

Question 6

Duty to Warn

Answer 6

Generally, there is no duty to prevent a third person from injuring another.

However, such a duty will be imposed when the defendant had a special relationship with the third person that gave the defendant the actual ability and authority to act (ex: psychiatrist), and the defendant knew or should have known that the third person was likely to injure the other person.

[a generalized threat will not be enough but if threat is made against a specific person, then psychiatrist had a duty to alert authorities even if it did not seem likely that the person would act on the threat]

Question 7

Eggshell Skull

Answer 7

The well-settled rule is that a tortfeasor takes its victim as it finds her. Under the “eggshell-skull plaintiff” rule, the fact that the extent or severity of the plaintiff’s harm was not foreseeable does not relieve the defendant of liability.

If the defendant’s negligence causes an aggravation of the plaintiff’s existing physical or mental illness, the defendant is liable for the damages caused by the aggravation.

Question 8

Battery

Answer 8

An intentional act that causes harmful or offensive contact.

The prima facie case for battery consists of:
1) an act by the defendant that brings about harmful or offensive contact to the plaintiff’s person
(Harmful contact is contact that causes pain, injury or physical discomfort. Contact is offensive if it would be considered offensive by a reasonable person and P has not consented.

2) Intent on the part of the defendant to bring about such harmful or offensive contact, and

(Intent is satisfied when the defendant acts with the desire to produce the legally forbidden consequence.)

3) Causation - There must be direct or indirect contact to plaintiff’s person. There is causation if the defendant sets in motion a force that brings about harmful or offensive contact to the plaintiff’s person. (Ex: D oils floor so P slips)

-Plaintiff does NOT need to be aware of contact to constitute battery
-P does NOT need to prove physical harm for battery. P just needs to show that the contact would be offensive to a reasonable person & that the def. had the intent to cause the contact.

Question 9

Normal Duty Standard

Answer 9

Whenever a person engages in an activity, he is under a legal duty to act as a reasonably prudent person engaged in the same or similar activity to all foreseeable plaintiff’s in the zone of harm.

Reasonably prudent person standard requires the defendant to act as a reasonably prudent person would under the same circumstances with the same knowledge and capacity as an average person. OBJECTIVE standard.

Foreseeable plaintiff’s are persons who are in the zone of danger which is the area in which the person is reasonably at risk of suffering harm from the defendant’s conduct.

To be owed a duty, ask: are plaintiffs within the foreseeable “zone of danger” from the defendant’s activity.

Question 10

Negligence & Evidence of Custom?

Answer 10

Evidence of custom, usage, or industry standards, while relevant, is not dispositive on the question of whether certain conduct constitutes negligence. Ultimately, the jury will need to determine whether failure to _____ constituted a breach of the duty of care owed by defendant to plaintiff.

Question 11

Negligence: Standard of Care for Children

Answer 11

Under 5 → A child under the age of 5 is usually without the capacity to be negligent.

5-18 → Children are held to the standard of a child of like age, intelligence, and experience. (SUBJECTIVE standard, pro-defendant)

EXCEPTION for child engaged in an inherently dangerous adult activity: Reasonably prudent person standard (ex: operating motorized vehicle, car, farm equipment, tractor, jet ski)

Question 12

Pure Comparative Negligence

Answer 12

Under the modern comparative negligence approach, fault is apportioned between parties.

The plaintiff’s percentage share of fault reduces his total damages award by that percentage.

Question 13

Joint and Several Liability

Answer 13

When two or more defendants are found liable in tort to a plaintiff, they are generally found to be jointly and several liable. Joint and several liability means that any defendant can be required to pay the entire judgment, and then seek repayment from the other tortfeasor.

Where two or more defendant’s contribute to plaintiff’s injury, plaintiff can go after either defendant to recover for full amount. Defendant’s can then recover from each other.

Where the requirement of actual proof under these facts would result in a harsh result on an innocent victim, courts have traditionally held defendants to be jointly and severally liable for the cause-in-fact, considering the injury to be indivisible as a matter of policy. The wrongdoers, rather than the victim, should bear the burden of the impossibility of apportionment.

Question 14

Negligence Per Se

Answer 14

A statute may establish the standard of care in a negligence case if:
1) the plaintiff is in the class intended to be protected by the statute, and 2) the statute was designed to prevent the type of harm that the plaintiff suffered.

In most jurisdictions, an unexcused violation of a statutory standard of care is negligence per se, which means that it establishes the first two prima facie elements of negligence (duty and breach of duty).

However, while violation of an applicable statute establishes a conclusive presumption of duty and breach of duty, compliance with the statute does not establish a conclusive presumption of due care. If there are unusual circumstances or increased danger beyond the minimum that the statute was designed to meet, it may be found that there is negligence in not doing more.

Question 15

Indirect Cause Cases: Intervening Force

Answer 15

In indirect cause cases, where an intervening force combines with the defendant’s conduct to cause the plaintiff’s injury, proximate cause exists only if the defendant’s negligence causes a foreseeable harm or caused a foreseeable reaction from an intervening force.

Intervening Forces that are ALWAYS Foreseeable:
-subsequent medical malpractice
-negligence of rescuers
-“reaction” forces: natural responses or reactions to situations created by def’s conduct (ex: p drives into a crowd of ppl, ppl then stampede each other)
-subsequent disease or accident (man in car accident breaks leg, man never used crutches before now falls & breaks hip using crutches. D is liable for leg & hip)

Intervening Force NOT Always Foreseeable → Acts of God. This is an independent intervening force that will only be considered foreseeable if the def’s conduct significantly increased the risk of harm from that force

Question 16

Superseding Force

Answer 16

Intervening events that produce a harm outside the scope of what one would normally anticipate from the defendant’s negligence are generally deemed unforeseeable and superseding. Such a superseding event will breach the chain of causation and relieve the defendant of liability.

Question 17

Abnormally Dangerous Activity

Answer 17

An activity that involves substantial risk of serious harm to people or property even when reasonable care is exercised AND activity is NOT a matter of common usage in the community.

Whether an activity is abnormally dangerous is a question of law that the court can decide on a motion for directed verdict.

Ex’s of Commonly Dangerous Activities:
-blasting
-mining
-transporting toxic waste
-using explosives

Question 18

Negligence & Rescuers

Answer 18

The well-settled rule is that a rescuer is a foreseeable plaintiff as long as the rescue is not reckless (“danger invites rescue”). Therefore, the defendant will be liable if he negligently puts a third person in peril and the plaintiff is injured in attempting a rescue.

Question 19

Vicarious Liability w/ Independent Contractor’s

Answer 19

Vicarious liability will only attach if the individual was an agent or employee.

In general, a principal will not be vicariously liable for the tortious acts of its agent if the agent is an independent contractor.

One broad exception, however, is when the contractor is engaged in inherently dangerous activities (ex: excavating next to a public sidewalk). Such an activity does not have to be classified as abnormally dangerous for which strict liability applies; it need only be an activity in which there are special dangers to others inherent in or normal to the activity.

Question 20

Assault

Answer 20

An intentional act by the defendant creating plaintiffs reasonable apprehension of immediate harmful or offensive contact to P’s person or something closely attached to P’s person.

Elements:
1) Act by D that creates a reasonable apprehension in P
-Apprehension does not mean fear, only means awareness of a harmful/offensive contact.
-Apprehension has to be reasonable & is from plaintiff’s perspective. If reasonable for someone in P’s position to assume gun is loaded, then there could be imminent apprehension.

2) Of immediate harmful or offensive contact to P’s person

3) Intent

4) Causation

-For assault, talk is cheap → need something more than words
-Def’s words can also negate the imminence of his actions

Question 21

False Imprisonment

Answer 21

An intentional act by D resulting in P’s restraint or confinement to a bounded area.

Prima facie elements for False Imprisonment:
1) Act or omission to act on the part of the defendant that confines or restrains the plaintiff to a bounded area
(Restraint or confinement does not have to be physical. Threats of force or invalid use of legal authority are sufficient)

2) Intent on the part of the defendant to confine or restrain the plaintiff to a bounded area
(P must be aware of or harmed by the confinement. P must not be aware of any reasonable means of escape. If reasonable means of escape then no false imprisonment)

3) Causation

Shopkeeper’s privilege → limited defense to false imprisonment. A store may detain a suspected thief if:
1) Store has reasonable cause to believe a theft occurred
2) Store detains suspect in a reasonable manner (only non-deadly force is permitted) for purposes of investigation; and
3) Detention is reasonable in length & scope.
Shopkeeper may be held liable for any harm caused by acts exceeding the privilege.

Question 22

Intentional Infliction of Emotional Distress

Answer 22

Prima facie case for IIED:
1) Act by the defendant that amounts to extreme and outrageous conduct
(Extreme & outrageous must transcend all bounds of decency tolerated by society)

2) Intent on the part of the defendant to cause the plaintiff to suffer severe emotional distress OR Recklessness as to the effect of def’s conduct

3) Causation

4) Severe emotional distress (severe meaning more than a reasonable person could endure)

-actual damages are required for IIED
-physical injury does not need to be established.
-physical symptoms caused by emotional distress are not required.
-Severe emotional distress is sufficient damages.

Question 23

NIED - Bystander

Answer 23

A bystander may recover damages for her own distress on the basis of NIED when the defendant negligently injured another as long as:
1) Bystander and the person injured by the defendant are closely related family members (ONLY: spouse, parent, minor child)

2) Bystander was present at the scene of the injury, and

3) Bystander personally observed or perceived the event

Question 24

NIED - Threat of Physical Impact

Answer 24

A plaintiff can recover damages from emotional distress from the threat of physical impact to her when she is in the zone of danger from the def’s conduct. P has to prove:
1) Plaintiff was in the zone of danger, and
2) Plaintiff must suffer physical symptoms from the distress

Must have physical damages
-EXCEPTION: Where damages don’t have to be shown, in special situations where the defendant’s negligence creates a great likelihood of severe emotional distress: 1) Mishandling of a corpse, 2) False report of death

Question 25

Trespass to Land

Answer 25

A physical entry of Plaintiff’s real property by the defendant without consent.

Prima facie case for Trespass to Land:
1) Physical entry of P’s real property by D
2) Intent (If someone knows to a substantial certainty the thing would cross into the land, that is enough for intent.
3) Causation

-Look for tangible things that crosses into another’s property
-Mistake of ownership is no defense

Question 26

Defenses to Trespass of Land

Answer 26

1) Private Necessity → if you enter somebody else’s land to avoid a greater harm & you are only saving yourself or your family members or 1 member of the community, you will not be liable for trespass, but you will be liable for damages you cause.

2) Public Necessity → when you enter the land of another to avoid a greater harm but you’re saving members of the community, it is an absolute defense & you will not be liable for any damages.

Question 27

Trespass to Chattels

Answer 27

Prima Facie Case of Trespass to Chattels:
1) An act of the defendant that interferes with the plaintiffs right of possession in the chattel (P does not need to be the property owner, anyone with possession may maintain an action for trespass to chattels)
2) Intent to perform the act bringing about the interference with the plaintiffs right of possession
3) Causation
4) Damages

Remedy for trespass to chattels = only have to pay cost of repair

Conversion: significant interference or damage with someone else’s chattel. Converison occurs when an actor intentionally interacts with an item that is the personal property of another so as to permanently deprive the rightful owner of possession. It is irrelevant whether the actor knows that the item belongs to another individual. (So, a landowner’s reasonable believe that trees are his does not defeat liability if he ordered the tree specialist to cut them. Both landowner & tree specialist will be liable).
Recovery for Conversion = fair market value of the chattel at the time of conversion

Question 28

Intent for Intentional Torts

Answer 28

Intent is satisfied if:
1) the defendant acts with the Desire to cause the Specific harm
OR
2) the defendant knows with Substantial certainty that harmful or offensive contact would result

Question 29

Duty to Unknown Trespasser

Answer 29

No duty

Ex: if you live in a rural area & person just wanders into your backyard & gets harmed in the process, that’s really not your fault.

Question 30

Duty to Known or Anticipated Trespasser

Answer 30

Here without permission but their presence is expected.
Ex: you live on a side lot & know a lot of parents & kids cut through your yard.

Landowner/Possessor has duty to: 1) exercise reasonable care in operations of the property & 2) warn of or make safe, known, highly dangerous artificial conditions likely to cause death or serious bodily harm that the trespasser is unlikely to discover (aka man made death traps)

____________________________________
Generally, one may use reasonable force to prevent the commission of a tort against his property. One may not use force that will cause death or serious bodily harm. Ex: if landowner puts barbed wire fence & trespasser sees it & continues to go over fence then by seeing it & proceeding anyway, they assumed the risk that they would be injured by knowingly entering into sharp barbed wire. This does not constitute force that will cause death or serious bodily harm bc even in the extent the trespasser did not see the barbed wire until he came upon it, simply touching it would deter an average person from deciding to proceeding anyway. By battling with the barbed wire, the trespasser was thus assuming the risk he would certainly become injured.

Question 31

Duty Owed to Licensee

Answer 31

(social guests)
-one who enters on land with landowner’s permission, express or implied, for her own purpose or business rather than for landowner’s benefit (ex is utility co coming to repair pipe on the land)

Owner/occupier has a duty 1) to take reasonable care in operations & 2) to warn or make safe a dangerous condition (natural or artificial) known to the owner/occupier that creates an unreasonable risk of harm to licensee AND the licensee is unlikely to discover

Question 32

Duty Owed to Invitee

Answer 32

(Business guest, public invitee) Someone who enters the property for the owners benefit, or to shop, or do business. Less common for residential but can still apply for non-social but invited reason. More often in commercial situations but includes home businesses as well.

Landowner/possessor owes same duty owed to a licensee PLUS a duty to reasonably inspect and make safe nonobvious dangerous conditions.

EXCEPTION: once you enter an area that you are no longer allowed to be in, invitee status drops down to an anticipated trespasser.

A person may lose invitee status & become a licensee by being on the premises at a time outside the scope of his invitation.

Question 33

Attractive Nuisance

Answer 33

A possessor of land is liable for harm to trespassing children if the following four elements are satisfied:
1) An artificial, dangerous condition exists
2) Possessor knows or should know children are likely to trespass
3) (Subjective standard) Child herself bc of age or immaturity fails to realize the risk or appreciate the danger involved
4) Utility of maintaining the condition is slight compared to the risks involved.

-under the attractive nuisance doctrine, a child trespasser who is injured by an artificial, dangerous condition need not be attracted into the property by that condition

-a body of water is generally NOT a dangerous condition for the attractive nuisance doctrine bc the dangers are viewed as obvious & well known.

Question 34

Wild Animal

Answer 34

Strict liability.

In order to recover in strict liability against the owner or keeper of a wild animal:
1) You have to suffer an injury associated with that animals’ dangerous propensities OR
2) If you are injured fleeing from the wild animal

-Can’t tame wild animals, even if it is “domesticated” (exception is bull on a farm is considered domesticated so not wild)
-if P is injured bc allergic to lion’s hair, D will not be liable bc that’s unrelated to wild animal’s dangerous propensities

Question 35

Defamation

Answer 35

Prima Facie Case of Defamation:
1) Defamatory statement on the part of the defendant
-Defamatory statement is a representation that reflects adversely on character. Law views reputation as an economically valuable asset.
-NOT defamatory: hyperbole, or opinion. Exception: If speaker implies knowledge of facts when giving an opinion, it could be considered defamatory.
2) Defamatory language “of and concerning” the plaintiff (identifying the plaintiff to a reasonable reader, listener, or viewer)
3) Publication of the defamatory language by the defendant to a 3rd party, and
4) Falsity → P must show statement is false/factually inaccurate as part of their case-in-chief. So negative but truthful things about someone is not defamation.
5) Damage to the reputation of the plaintiff
-Libel → defamation embodied in permanent form, so damages presumed in libel cases.
-Defamation Per Se/ Slander Per Se → when you defame someone’s trade, business or profession that is a per se violation
-If slander, but NOT slander per se, then P must prove economic harm
6) Fault → And if the matter is of Public concern OR Plaintiff is a Public figure, you must also show that the Defendant acted with malice. Malice means knowledge that a statement was false or made with reckless disregard as to its truth or falsity
(otherwise, standard for defamation is negligence, have to show def negligently hurt the plaintiff’s reputation with this statement)

2 Types of Defamation:
Libel → written
Slander → spoken

Question 36

Nuisance

Answer 36

To prevail on a nuisance claim, the Plaintiff must show that there has been a disturbance that poses an unreasonable & substantial interference with the plaintiff’s use and enjoyment of their property.

Courts define substantial as offensive, inconvenient or annoying to a reasonable, ordinary person. Courts define unreasonable as an Injury that outweighs the utility of the behavior.

Usually intangible → noise, vibrations, light, odors, smoke (Contrast with trespass to land which is tangible. For nuisance, no physical invasion is required)

Nuisance claim also needs to be continuous & substantial interference. (Trespass does not need to be continuous nor substantial interference).

For an interference to be characterized as unreasonable in a nuisance claim, the severity of the injury must outweigh the utility of the defendant’s conduct. In balancing these respecting interests, courts take into account that every person is entitled to use his own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courses of conduct open to the def.

Good defense to nuisance → hypersensitivity of plaintiff

Bad defense to nuisance → coming to the nuisance (even if def was there first, that doesn’t matter, not a good defense)

Question 37

Transferred Intent

Answer 37

Transferred intent holds that if a def intends to commit a tort but causes injury to a different victim or commits a different tort than intended, the original intent is transferred to the new victim or tort.

Transferred intent can be invoked for:
-Assault
-Battery
-False imprisonment
-Trespass to land or chattels

Transferred intent does NOT apply to the torts of: IIED or malicious prosecution

Question 38

Negligent Hiring

Answer 38

If an employer hires an employee and that employee causes injuries to a third party, the employer may be liable under a negligent hiring theory.

Negligent hiring does NOT require that employee is acting under the scope of employment.

Question 39

Products Liability: Strict Liability

Answer 39

Under the strict products liability theory, a commercial supplier of a defective product is subject to strict liability for any harm caused by the party regardless of any wrongdoing or negligence.

Prima facie case for Products Liability-Strict Liability:
1) Def is a commercial supplier who routinely deals in goods of this type. A commercial supplier can include a manufacturer, retailer, assembler, or wholesaler
2) Product was defective when it left the hands of the manufacturer or supplier (manufacturing defect, design defect, failure to warn)
3) Product was not altered when it reached the plaintiff. no substantial alteration
4) Product caused an injury to plaintiff when it was being used in an intended or unintended foreseeable use (that was reasonable) Both cause in fact and proximate cause. For proximate cause, ask if the misuse was foreseeable.
5) Plaintiff suffered damages to person or property

3 Categories of Defect:
1) Manufacturing Defect: Evidence of a manufacturing defect requires 1) that product differs from the intended design & 2) it is more dangerous than if made properly
Ex: Due to an assembly line issue, one of the lawnmowers is produced without a blade guard & causes injury. Lawnmower was more dangerous bc it deviated from the intended design.

2) Design Defect: A design defect exists if there was a way to build the product that 1) is safer 2) is more practical & 3) has a similar cost. When a design defect is alleged, the trier of fact must balance the alternative designs available including their cost & affect on utility against the risk of customers.
Ex: Even if the lawnmower is manufactured according to its design, the covered blades nevertheless cause injury in about 2% of users. But there is also an alternative way to build the blade covers so that they cover more of the blades. The alternative design would reduce injuries to 1% of users with no decrease in product performance & no increased cost. The manufacturer rejects alternative design, continues manufacturing based on the original design and one of the OG designs causes injury. This constitutes a design defect bc the lawnmower was made more dangerous by being manufactured according to its intended design instead of a safer alternative.

3) Failure to Warn: Evidence of a failure to warn requires 1) Plaintiff was not warned of the risks regarding the use of the product 2) which are not obvious to an ordinary user but known to the designer manufacturer. A warning must be proportionate to the risk involved with normal use of the product.
Ex: No safer alternatives to a lawnmower design. Which means that no matter what, the lawnmower will cause injury in about 2% of users. Lawnmowers do not contain a warning even though the danger of injury from covered blades is known to the manufacturer & is not obvious to an ordinary user. That constitutes a failure to warn defect bc the product while inherently dangerous is made even more dangerous by the fact that consumer is not warned of the danger.

Plaintiff does not need to be purchaser of product. If consumer sued defective product & causes injury to 3rd party, then 3rd party can assert strict products liability claim.

Assumption of Risk: may be a defense, where plaintiff engaged in voluntary & unreasonable conduct & used the product despite discovering the defect & being aware of the danger.
Comparative Negligence: is a defense to strict products liability cases. Just reduce plaintiff’s award by his fault.

Recovery in a wrongful death action is allowed only to the extent that the deceased could have recovered in a personal injury action had he lived.

Question 40

Products Liability Based on Breach of Express Warranty

Answer 40

An express warranty arises when a seller or supplier makes an affirmation of fact OR promise to the buyer relating to the goods in question that becomes part of the basis of the bargain.

If a buyer is suing, the express warranty must have been part of the basis of the bargain. If someone not in privity is suing, the remote person must show that the express warranty was part of the basis of the bargain for someone in the chain of distribution.

An express warranty does not need to be made by a merchant dealing in the type of goods sold.

Contrast w/ Implied Warranty of Merchantability: must be made by merchant dealing in type of goods sold.

BOTH Implied & Express Warranty Actions: do not require proof of def’s fault. If a product does not meet the standards imposed by express or implied warranty, then the warranty is breach.

Question 41

Products Liability: Negligence

Answer 41

Can sue anybody in commercial chain under products liability, as long as product was defective when it left the manufacturer’s control

-An intermediary’s negligent failure to discover a defect will not cut off the defendant’s liability. The defendant whose original negligence created the defect will be held liable along with the intermediary (However, when the intermediary’s conduct becomes something more than ordinary foreseeable negligence, it becomes a superseding cause and cuts off the defendant’s liability)

-A plaintiff may NOT recover solely for economic losses. A plaintiff may recover for: personal injury and property damages as under the usual negligence analysis. However, if the plaintiff suffers only economic loss, most courts do not permit recovery under a negligence theory.

-A plaintiff’s contributory negligence IS a defense in a jurisdiction applying comparative negligence. The standard negligence defenses are applicable to any products liability case predicated on negligence.

-Bystanders can recover as well

Question 42

Contributory Negligence

Answer 42

Under contributory negligence principles, a plaintiff is required to act as a reasonably prudent person, the same as the defendant.

A plaintiff who fails to act reasonably and who negligently contributes to his injury will have his recovery reduced in jrdx’s following a pure comparative negligence rule.

Contributory negligence is a defense to negligence actions but not to intentional torts actions.

Question 43

Invasion of Privacy

Answer 43

Tort of Invasion of Privacy includes the following 4 kinds of wrongs:

1) Appropriation by the defendant of the plaintiff’s picture or name for the defendant’s commercial advantage
-Newsworthiness exception: it is not a tort to place picture in connection w/ a story that the person did something newsworthy

2) Intrusion by the defendant on the plaintiff’s affairs or seclusion
-have to be in a secluded space

3) Publication by the defendant of facts placing the plaintiff in a false light
-P has to prove def knew statement was false or made the statement with reckless disregard of its falsity (malice)
-can sue for defamation & false light

4) Public disclosure of private facts about the plaintiff by the defendant.
-disclosure must be of a truly confidential fact
-Newsworthiness exception: if its true & of legitimate concern to public then non-tortious, ex: investigative journalism

Question 44

Assumption of Risk

Answer 44

An affirmative defense. A plaintiff who knowingly and voluntarily assumes the risk of injury caused by the def’s conduct.

HAS TO KNOW THE RISK OF INJURY

In a strict liability action, conduct constituting assumption of risk is an affirmative defense; depending on the jurisdiction, it may be a complete defense or it may reduce the plaintiff’s recovery under comparative fault principles.

Assumption of risk is NOT a defense to intentional torts.

Question 45

How to bring a Products Liability claim?

Answer 45

A Products Liability claim may be brought by a plaintiff under multiple different theories:
-intent
-negligence
-strict liability
-implied warranties
-express warranties

Question 46

Product Liability: Liability for Misrepresentation

Answer 46

Liability for misrepresentation occurs when a representation by the seller about a product induces reliance by the buyer. Liability for misrepresentation is usually based on strict liability in products cases.

P must show:
1) Def is a seller engaged in the business of selling such products
2) Misrepresentation must be of a material fact
3) Intent to induce reliance of buyer
4) Justifiable reliance
5) Actual reliance
6) Proximate cause & damages.

Question 47

Negligence Based on Failure to Adequately Supervise

Answer 47

Parents have an affirmative duty based on their special relationship to their minor children to exercise reasonable care over their minor child.

A parent who is physically present and fails to exercise control of her child is generally not vicariously liable for the child’s tortious behavior; rather, the parent may be liable for her own negligence in failing to control the child.

Idea is bc the child’s parent was not adequately supervising their child, and it was foreseeable that the child could potentially injure someone, the plaintiff is likely to prevail.

Watch out for answer choices that convey strict liability “Yes, because the child’s mother is responsible for any harm caused by the child.” Any harm would be strict liability which is not the case here.

Question 48

Strict Liability Generally

Answer 48

Under strict liability, D can be liable without fault. Allows P to establish D’s liability for P’s injuries w/o proving D acted negligently

Strict liability is limited to cases involving:
-Ultrahazardous and/or abnormally dangerous conditions
-Animal conduct
-Products liability

Prima Facie Case for Strict Liability
1) Nature of D’s activity imposes absolute duty to make safe
2) Causation - actual & proximate cause
-Dangeous aspect of D’s activity caused P’s injury
-D generally liable only to foreseeable P’s
3) Damages to P’s person or property

No amount of due care will relieve D of liability under strict liability.

Defenses: Assumption of Risk, Comparative Negligence

Question 49

Intent for ALL Intentional Torts

Answer 49

Intent is satisfied:

1) If the defendants acts with the desire to cause the specific harm

OR

2) the defendant knows with substantial certainty that harmful or offensive contact would result

Question 50

Prima Facie Elements of Intentional Tort

Answer 50

1) Voluntary act

2) Intent to cause harm

3) Causation

4) Must be resulting harm

Question 51

Children & Mentally Incompetent be Liable for their own Torts?

Answer 51

Yes, they can be liable when they have the intent required for the tort

Question 52

Negligence: Standard of Care for Professionals

Answer 52

They must act the same as a professional with the same expertise and experience who is in good standing in a similar community

Question 53

Negligence: Standard of Care for Doctors

Answer 53

Doctors must act the same as an average doctor in good standing would act.

In some jrdx’s they are compared to an average doctor in the same geographic area & in other jrdx’s they look at how an average doctor nationally would act.

Question 54

Negligence: Standard of Care for Specialists

Answer 54

Standard of care for specialists is the national standard of care for that specialty.

Question 55

Are Defendants Liable to Undiscovered Trespassers for Injuries from their Wild Animals?

Answer 55

No. Defendant’s do not owe a duty to undiscovered trespassers for injuries from a wild animal. BUT, they may be liable for injuries from a vicious watchdog.

Question 56

Is a Defendant Strictly Liable for Injuries Caused by Domesticated Pets?

Answer 56

Generally, no. Defendant will only be liable for negligence. However, if the defendant knows or should know of the animal’s dangerous propensity AND the plaintiff’s harm is caused by that dangerous propensity, then the defendant can be strictly liable.

Question 57

Res Ipsa Loquitur

Answer 57

The concept of Res Ipsa Loquitur applies to negligence cases when the source of the harm is not easily identifiable, but the harm incurred is of the type not typically sustained in the absence of negligence.

Question 58

Is Person who hires IC liable for injury to 3rd party?

Answer 58

A person who hires an IC ordinarily is not liable for injury to a 3rd party caused by the contractor’s negligence. However, there is an exception to this rule when the person directly influences the manner in which the contractor performs to work to contribute to the creation of danger that causes 3rd party’s injury.

ex: Homeowner hires IC to rebuild her front porch. IC was going to rip out old floorboards, pile them in front yard. Owner did not think that would look nice so she insisted that contractor loosen each boar individually and leave them all in place until he was ready to start replacing them with new board. IC did so then went to lunch. When he was away, friend of homeowner stepped onto porch & loosened boards shifted & friend broke her leg. Who is responsible? → both homeowner & contractor

Question 59

Punitive Damages

Answer 59

Punitive damages may be awarded in tort where there is proof of the defendant’s willful or wanton misconduct.

Question 60

If asking what’s best basis of plaintiff’s claim b/w strict products liability v. abnormally dangerous activity?

Answer 60

Be very careful who P is bringing claim against!!! Remember strict products liability applies only to commercial sellers of defective products that cause injury.

Ex: lady is at amusement park viewing fireworks display & she gets struck & injured by a rocket set off as part of the display. Rocket unexpectedly failed to shoot upward but went parallel & struck her. Lady sues amusement park for damages. Which theory is most likely to obtain SJ as to liability? Abnormally dangerous activity or strict products liability? → abnormally dangerous bc amusement park is not a commercial seller so can’t bring strict products liability

Question 61

Duty Landlords Owe to Tenants

Answer 61

As a general rule, a landlord has no duty to maintain the leased premises unless provided for by law (local law) or contract.

A landlord must warn the tenant about known latent defects to the property. If they do not & some damage to the tenant or tenants property occurs, landlord may be liable.
Ex: short in electrical circuit, loose railing in stairs

Modern View: Landlord has a duty to take reasonable precautions to prevent the tenant against foreseeable criminal attacks of 3rd party.
-foreseeable if it’s happened before, it’s common in the area