Torts

Question 1

(EXAM TIP) True or False: Regarding intentional torts, everyone is “capable” of intent.

Answer 1

Everyone is “capable” of intent. Incapacity is NOT a good defense. Thus, young children and persons who are mentally incompetent will be liable for their intentional torts.

Question 2

(EXAM TIP) Expand on battery element #1: “harmful or offensive contact”

Answer 2

Contact is considered harmful if it causes actual injury, pain, or disfigurement. Contact is offensive if it would be considered offensive to a reasonable person. [Contact is considered offensive ONLY if it has not been consented to. However, consent will be implied for the ordinary contacts of everyday life (e.g., minor bumping on a crowded bus).]

Question 3

(EXAM TIP) IIED Damages

Answer 3

Intentional infliction of emotional distress is the ONLY intentional tort to the person that requires damages.

Question 4

(EXAM TIP) IIED Fallback

Answer 4

Intentional infliction of emotional distress is a fallback tort position. Thus, if another alternative in your exam question is a tort that will also allow a plaintiff to recover, it should be chosen over this alternative.

Question 5

Prima Facie Case for Intentional Torts

Answer 5

(1) Act: volitional movement
(2) Intent: specific or general (substantially certain)
(3) Causation: at least substantial factor

Question 6

Battery (4): Prima Facie Case

Answer 6

(1) HARMFUL OR OFFENSIVE CONTACT;
(2) to plaintiff’s person;
(3) intent; and
(4) causation.

Question 7

Battery (1/4): Harmful or Offensive Contact

Answer 7

Contact is harmful if it causes actual injury, pain, or disfigurement. Contact is offensive if it would be considered offensive to a reasonable person. (Contact may be direct or indirect). (Plaintiff’s super-sensitivities are irrelevant; unless, the defendant knew of them).

Question 8

Battery (2/4): Plaintiff’s Person

Answer 8

Plaintiff’s person includes anything connected to the plaintiff (e.g., clothing or a purse). (Construe plaintiff’s person very liberally).

Question 9

Battery: Damages?

Answer 9

Damage is NOT required. (Plaintiff can recover nominal damages even if actual damages are not proved. Plaintiff may recover punitive damages for malicious conduct.)

Question 10

Assault (4): Prima Facie Case

Answer 10

(1) An act by defendant creating a REASONABLE APPREHENSION in plaintiff;
(2) Of IMMEDIATE HARMFUL OR OFFENSIVE to plaintiff’s person;
(3) Intent; and
(4) Causation.

Question 11

Assault (1/4): Act

Answer 11

(A) The apprehension must be reasonable (e.g., reaching into back pocket). We look to context. Remember the Supersensitive Plaintiff Rule–we only care about the average person. (B) Apprehension is different from fear (e.g., Betty White v. Rocky). (C) Apprehension must be known (i.e., an aware plaintiff). (D) Words are not enough (BUT they can negate). (E) Apparent ability creates a reasonable apprehension (e.g., an unloaded gun).

Question 12

Assault (2/4): Immediate Harmful or Offensive Contact

Answer 12

Plaintiff must be apprehensive that she is about to become the victim of an IMMEDIATE battery.

Question 13

Assault: Damages?

Answer 13

Damages are NOT required. (Plaintiff can recover nominal damages even if actual damages are not proved. Malicious conduct may permit recovery of punitive damages.)

Question 14

False Imprisonment (4): Prima Facie Case

Answer 14

(1) An act or omission on the part of the defendant that CONFINES OR RESTRAINS plaintiff;
(2) To a BOUND AREA;
(3) Intent; and
(4) Causation

Question 15

False Imprisonment (1/4): Act

Answer 15

(A) Use common sense (e.g., barriers, force, threats of force, invalid use of legal authority); (B) moral pressure and future threats are not enough; (C) time can be VERY short; (D) Plaintiff must KNOW of the confinement or be HARMED by it; (E) Omission to act is also enough (e.g., leaving a passenger stranded on a boat).

Question 16

False Imprisonment (2/4): To a Bound Area

Answer 16

For an area to be “bounded,” freedom of movement must be limited in all directions. There must be no REASONABLE means of escape KNOWN to plaintiff. (Mere inconvenience is NOT enough).

Question 17

False Imprisonment: Damage?

Answer 17

Damage is NOT required. (Plaintiff can recover nominal damages even if actual damages are not proved. Punitive damages may be recovered if defendant acted maliciously.

Question 18

Intentional Infliction of Emotional Distress (4): Prima Facie Case

Answer 18

(1) An act by defendant amounting to EXTREME AND OUTRAGEOUS CONDUCT;
(2) Intent or recklessness;
(3) Causation; and
(4) Damages–severe emotional distress.

Question 19

IIED (1/4): Act, Extreme and Outrageous Conduct

Answer 19

This is conduct that transcends all bounds of decency, Conduct that is not normally outrageous may become so if: (1) it is continuous in nature; (2) it is directed towards certain types of plaintiffs (e.g., the elderly); or (3) it is committed by certain types of defendants (e.g., common carriers or inkeepers)

Question 20

IIED (2/4): Intent or Recklessness

Answer 20

Unlike for other intentional torts, recklessness as to the effect of defendant’s conduct will satisfy the intent requirement.

Question 21

IIED (4/4): Damages (Severe and Emotional Distress)

Answer 21

Actual damages (severe emotional distress), not nominal damages, are required; however, proof of physical injury is NOT required. The more outrageous the conduct, the less proof of damage is required.

Question 22

Trespass to Land: Prima Facie Case

Answer 22

(1) PHYSICAL INVASION of plaintiff’s REAL PROPERTY;
(2) Intent; and
(3) Causation

Question 23

Trespass to Land (1/3): Physical Invasion of Plaintiff’s Real Property

Answer 23

(A) The invasion may be by a person OR an object (e.g., throwing a baseball onto plaintiff’s land) (if intangible matter (e.g., vibrations or odor) enters, you may have a nuisance case). (B) Real Property includes not only the surface, but also airspace and subterranean space for a reasonable distance. (C) A defendant could push someone onto plaintiff’s land.

Question 24

Trespass to Chattels: Prima Facie Case

Answer 24

(1) An act by a defendant that INTERFERES WITH PLAINTIFF’S RIGHT OF POSSESSION in a chattel;
(2) Intent;
(3) Causation; and
(4) Damages.

Question 25

Trespass to Chattels (1/4): Act, Interference

Answer 25

The interference may either be an intermeddling (i.e., directly DAMAGING the chattel) or a dispossession (i.e., depriving plaintiff of his lawful right of POSSESSION of the chattel).

Question 26

Trespass to Chattels (2/4): Intent

Answer 26

Intent to trespass is NOT required; INTENT TO DO THE ACT OF INTERFERENCE IS ALL THAT IS NEEDED. The defendant’s mistaken belief that he owns the chattel is NO defense.

Question 27

Trespass to Chattels (4/4): Damage

Answer 27

Actual damages–not necessarily to the chattel, but at least to the possessory right–are required.

Question 28

Trespass to Chattels vs. Conversion

Answer 28

ACT: [seriousness] (T2C) an interference with P’s right of possession of chattel (either intermeddling or dispossession), (Con.) an interference with P’s right of possession so serious as to warrant that D pay the chattel’s full value.
INTENT: [same] (T2C) intent to do the act that brings about the interference, (Con.) intent to do the act that brings about the interference.
REMEDY: (T2C) recovery of actual damages from harm to chattel or loss of use, (Con.) damage award of fair market value of chattel at time of conversion (“replevin”) (may instead recover chattel).

Question 29

Conversion (4): Prima Facie Case

Answer 29

(1) An act by defendant that INTERFERES WITH PLAINTIFF’S RIGHT OF POSSESSION IN A CHATTEL;
(2) The interference is SO SERIOUS that it warrants requiring defendant to pay the chattel’s full value;
(3) Intent; and
(4) Causation.

Question 30

Conversion (1/4): Acts

Answer 30

Acts of conversion include: wrongful acquisition, wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing a chattel.

Question 31

Conversion (2/4): Intent, So Serious

Answer 31

(A) As with trespass to chattels, mistake as to ownership is no defense; the only intent required is the intent to do the act that interferes with the plaintiff’s right of possession. (B) The longer the withholding period and the more extensive the use, the more likely it is to be conversion.

Question 32

Conversion: Other

Answer 32

(A) Subject Matter of Conversion: Only tangible property and intangibles that have been reduced to physical form (e.g., promissory note), (B) Potential Plaintiffs: Anyone with possession or immediate right to possession of the chattel may maintain an action for conversion, (C): Remedies: Plaintiff may recover damages (fair market value at the time of conversion) or possession (replevin).

Question 33

Defenses to Intentional Torts (3)

Answer 33

(1) Consent
(2) The Defense Privileges
(3) Necessity

Question 34

Consent (3 Steps)

Answer 34

(Step 1) Determine if the plaintiff had capacity. If not, the consent is invalid. (Exception: Where consent is implied by law, e.g., emergencies).
(Step 2) Determine if the consent was EXPRESSLY given or is to be IMPLIED.
(Step 3) Determine if defendant stayed within the BOUNDARIES of any consent given. If not, privilege may be lost.
[Also a defense to defamation and privacy]

Question 35

Consenting to Criminal Acts

Answer 35

The majority view is that one CANNOT consent to a CRIMINAL ACT.

Question 36

Consent (Two Inquiries)

Answer 36

(1) Was there valid consent? (If yes look for facts relating to: mistake, fraud, coercion).

Question 37

Express (Actual) Consent

Answer 37

Defendant is not liable if plaintiff expressly consents to defendant’s conduct. Exceptions: (1) mistake will undo express consent IF defendant knew of and took advantage of the mistake; (2) consent induced by fraud will be invalidated if it goes to an essential matter but not a collateral matter, and (3) consent obtained by duress will be invalidated UNLESS the duress is ONLY threats of FUTURE action or FUTURE economic deprivation.

Question 38

The Defense Privileges (3 Steps)

Answer 38

(1) Determine if the timing requirement has been satisfied.
(2) Determine if the defense test has been satisfied.
(3) Determine if the defendant has used the proper amount of force to defend.

Question 39

The Defense Privileges (3 Questions)

Answer 39

(1) Is the privilege available? These privileges apply only for preventing the commission of a tort. Already committed torts do not qualify.
(2) Is a mistake permissible as to whether the tort being defended against is actually being committed?
(3) Was a proper amount of force used?

Question 40

Self-Defense: When Is Defense Available?

Answer 40

(a) The majority rule is that there is NO DUTY TO RETREAT. The modern trend imposes a duty to retreat before using deadly force if this can be done safely, unless the actor is in her home.
(b) Self-defense is NOT available to the INITIAL AGGRESSOR UNLESS the other party responds to the aggressor’s non-deadly force by using deadly force.
(3) Self-defense may extend to THIRD-PARTY INJURIES (caused while the actor was defending herself).

Question 41

Self-Defense: Is Mistake Allowed?

Answer 41

A reasonable mistake as to the existence of the danger is allowed.

Question 42

Self-Defense: How Much Force May Be Used?

Answer 42

One may only use that force that reasonably appears to be necessary to prevent the harm (including deadly force). If more force than is reasonably necessary is used, the defense is lost.

Question 43

Defense of Others: When Is Defense Available?

Answer 43

One may use force to defend another when the actor REASONABLY BELIEVES that the other person could have used force to defend himself.

Question 44

Defense of Others: Is Mistake Allowed?

Answer 44

A reasonable mistake as to whether the other person is being attacked or has a right to defend himself is permitted.

Question 45

Defense of Others: How Much Force May Be Used?

Answer 45

The defender may use as much force as he could have used in self-defense if he were the one threatened with the injury.

Question 46

Defense of Property: When Is Defense Available?

Answer 46

One may use reasonable force to prevent the commission of a tort against her real or personal property. A request to desist or leave must first be made unless it clearly would be futile or dangers. The defense does not apply once the tort has been committed; however, one may use force in HOT PURSUIT of another who has tortiously dispossessed the owner of her chattels because the torts is viewed as still being committed.

Question 47

Defense of Property: Is Mistake Allowed?

Answer 47

A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required. A mistake is NOT allowed as to whether the entrant has a privilege that supersedes the defense of property right, UNLESS the entrant conducts the entry so as to lead the defendant to reasonably believe it is not privileged (e.g., refusing to say what the necessity is).

Question 48

Defense of PRoperty: How Much Force May Be Used?

Answer 48

Reasonably force may be used; however, one may NOT use force causing death or serious bodily harm UNLESS the invasion of property also entails a serious threat of bodily harm.

Question 49

Necessity: Public

Answer 49

A person may interfere with the real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it. PUBLIC: when the act is for the public good.

Question 50

Necessity: Private

Answer 50

A person may interfere with the real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it. PRIVATE: when the act is solely for the benefit of a limited number of people. Under private necessity, the actor must pay for any injury he causes (unless the act was to benefit the property owner).

Question 51

Harm to Economic & Dignitary Interests (4)

Answer 51

(1) Defamation
(2) Invasion of Right to Privacy
(3) Misrepresentation
(4) Interference with Business Relationships

Question 52

Defamation (4 or 6): Prima Facie Case

Answer 52

(1) Defamatory language;
(2) “of our concerning” the plaintiff;
(3) PUBLICATION thereof by defendant to a third person; and
(4) Damage to plaintiff’s reputation.

(5) Falsity of the defamatory language; and
(6) Fault on the part of the defendant.

Question 53

Defamation (1/4 or 6): Defamatory Language

Answer 53

Defamatory language is defined as language tending to adversely affect one’s reputation. A statement of opinion is actionable only if it appears to be based on a specific set of facts, and an express allegation of those facts would be defamatory. Name-calling is insufficient. [Also: (A) If not defamatory on its face P may introduce additional facts; (B) P must be a living person.]

Question 54

Defamation (2/4 or 6): “Of or Concerning” the Plaintiff

Answer 54

The plaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff. (Again, extrinsic evidence may be offered).

Question 55

Defamation: Note on Group Defamation

Answer 55

(1) If the defamatory statement refers to ALL members of a small group, each member may establish that the statement is “of and concerning” him by alleging that he is a group member, (i.e., everyone wins!).
(2) If it is a large group, no member can prove that the statement is “of and concerning” him (i.e., no one wins!)
(3) If the statement only refers to some members of a small group, plaintiff can recover if a reasonable person would view the statement as referring to plaintiff.

Question 56

Defamation (3/4 or 6): Publication

Answer 56

Publication means communication of the defamation to a third person who understands it. Such publication can be made either intentionally or negligently. It is the intent to publish, not the intent to defame, that is the requisite intent. Each repetition is a separate publication. However, for magazines, newspapers, etc., most state have adopted a “single publication” rule under which all copies are treated as one publication.

Question 57

(EXAM TIP) Defamation to Plaintiff Alone

Answer 57

An exam favorite is the situation where a defamatory statement about plaintiff is made only TO PLAINTIFF. As a general rule, this is NO publication and thus NO defamation.

Question 58

Defamation: Who may be liable?

Answer 58

Primary publishers are liable to the same extent as the author or speaker. One selling papers or playing tapes is a secondary publisher and is liable only if he knows or should have known of the defamatory content.

Question 59

Defamation (4/4 or 6): Damages

Answer 59

The type of damages plaintiff must prove depends on the type of defamation (libel or slander) involved. Libel (written or broadcast): damages are presumed. Slander (spoken): P must show “special damages” ($). But under Slander PER SE (business or profession; crime involving moral turpitude; loathsome disease; imputing the unchastity of a woman): damages are presumed.

Question 60

Defamation (5/4 or 6): Falsity

Answer 60

Plaintiff must prove statement was false. (This means the burden of proof as to truth or falsity has shifted from the defendant to the plaintiff.) (Note the effect on defenses: Subtract the defense of truth because the prima facie case is done BEFORE the defenses).

Question 61

Defamation (6/4 or 6): Fault

Answer 61

(The first step in this “fault” part of the analysis is to determine what type of plaintiff you have.) Plaintiff must prove defendant was at fault. There are three types of “fault conduct”: (1) intentional, (2) reckless, and (3) negligent. “Public Figure” Plaintiff: must prove INTENTIONAL or RECKLESS tortious conduct. Negligence is NOT enough. (“Actual Malice” Test: The statement was made either (1) knowing it was false, or (2) with reckless disregard as to its truth or falsity.) “Private Person” Plaintiff: Only has to prove negligent tortious conduct.

Question 62

Invasion of Right to Privacy (Four Branches)

Answer 62

(1) Appropriation of Plaintiff’s Picture or Name
(2) Intrusion on Plaintiff’s Affairs or Seclusion
(3) Publication of Facts Placing Plaintiff in False Light
(4) Public Disclosure of Private Facts About Plaintiff

Question 63

IORTP (1/4): Appropriation of Plaintiff’s Picture or Name

Answer 63

It is necessary to show UNAUTHORIZED USE of plaintiff’s picture or name for defendant’s COMMERCIAL ADVANTAGE. Liability is generally limited to advertisements or promotions of products or services. Mere economic benefit to defendant (not in connection with promoting a product or service) by itself is not sufficient.

Question 64

IORTP (2/4): Intrusion on Plaintiff’s Affairs or Seclusion

Answer 64

The act of PRYING OR INTRUDING must be HIGHLY OFFENSIVE TO A REASONABLE PERSON. Furthermore, the thing into which there is an intrusion must be “PRIVATE.” Photographs taken in public places are NOT actionable.

Question 65

IORTP (3/4): Publication of Facts Placing Plaintiff in False Light

Answer 65

“False light” exists where one attributes to plaintiff views he does not hold or actions he did not take. The false light must be something HIGHLY OFFENSIVE TO A REASONABLE PERSON under the circumstances. For liability to attach, there must be publicity, i.e., wide dissemination. (The “actual malice” test applies where a matter is in the “public interest” and a “public figure” is involved.) (“Actual Malice” Test: The statement was made either (1) knowing it was false, or (2) with reckless disregard as to its truth or falsity.)

Question 66

IORTP (4/4): Public Disclosure of Private Facts About Plaintiff

Answer 66

(Note: no defamation or “false light” because statement is TRUE.) This wrong involves public disclosure of PRIVATE INFORMATION about plaintiff. The public disclosure must be HIGHLY OFFENSIVE TO A REASONABLE PERSON of ordinary sensibility. (Again, requires wide dissemination.)

Question 67

Invasion of Right to Privacy: Defenses

Answer 67

Consent & the absolute and qualified privileges from defamation law apply here as well.

Question 68

Defamation: Defenses (3)

Answer 68

(1) Consent
(2) Truth (Unless First Amendment Case)
(3) Absolute and Qualified Privileges

Question 69

Defamation: Defenses (3/3): Absolute and Qualified Privileges

Answer 69

ABSOLUTE (Can never be lost): remarks made during judicial proceedings; by legislators during proceedings; by federal executive officials; in “compelled” broadcasts, and between spouses. QUALIFIED (Can be lost through abuse): reports of official proceedings; statements in the interest of the publisher; statements in the interest of the recipients; and statements in the common interest of the publisher and recipient.

Question 70

Intentional Misrepresentation: Prima Facie Case (6)

Answer 70

(1) MISREPRESENTATION of a material past or present fact;
(2) SCIENTER, i.e., when defendant made the statement, she KNEW or BELIEVED it was false or that there was no basis for the statement;
(3) INTENT to induce P to act or refrain from acting IN RELIANCE upon the misrepresentation;
(4) CAUSATION (actual reliance);
(5) JUSTIFIABLE RELIANCE; and
(6) DAMAGES (plaintiff must suffer ACTUAL PECUNIARY LOSS).

Question 71

Intentional Misrepresentation: Defenses?

Answer 71

There are no defenses to intentional misrepresentation.

Question 72

Intentional Misrepresentation: NO General Duty to Disclose

Answer 72

There is no general duty to disclose a material fact, unless the defendant (1) stands in fiduciary relationship to the plaintiff; (2) is selling real property and knows the plaintiff is unaware of, and cannot reasonably discover, material information about the transaction; or (3) has spoken and her utterance deceives the plaintiff. Physical concealment of a material fact may also constitute misrepresentation; however, silence is NOT enough.

Question 73

Intentional Misrepresentation (1/6): Misrepresentation

Answer 73

First, there must be a misstatement of FACT, NOT an OPINION UNLESS rendered by someone with superior skill in the area. Second, silence is NOT enough. One must affirmatively speak (or conceal).

Question 74

Intentional Misrepresentation (2/6): Scienter

Answer 74

The statement was made either (1) 1 knowing it was false, or (2) with reckless disregard as to its truth or falsity.

Question 75

Intentional Misrepresentation (3/6): Intent

Answer 75

There must be an intent to induce reliance, NOT just social chit-chat.

Question 76

Intentional Misrepresentation (5/6): Justifiable Reliance

Answer 76

It must be reasonable; not just opinion and there is NO duty to investigate.

Question 77

Negligent Misrepresentation (5): Prima Facie Case

Answer 77

(1) Misrepresentation by defendant in a business or professional capacity;
(2) Breach of duty toward a particular plaintiff;
(3) Causation;
(4) Justifiable Reliance; and
(5) Damages.

NOTE: Can only be used in a commercial setting fact pattern.

Question 78

Interference with Business Relations: Prima Facie Case

Answer 78

(1) existence of a VALID CONTRACTUAL RELATIONSHIP between plaintiff and a third party OR VALID BUSINESS EXPECTANCY of plaintiff;
(2) defendant’s KNOWLEDGE OF THE RELATIONSHIP OR EXPECTANCY;
(3) INTENTIONAL INFERENCE by defendant inducing a breach or termination of the relationship or expectancy; and
(4) DAMAGES.

Question 79

Interference with Business Relations: Defenses

Answer 79

Privileges: (1) Defendant’s “persuasion” conduct [the more aggressive, the harder to prove a privilege], (2) Relationship between the parties [P&D: Competitors have a privilege the covers PROSPECTIVE relationships; P&3: Close relatives or fiduciary duties have a privilege].

Question 80

Strict Liability: Prima Facie Case (3)

Answer 80

(1) the nature of the defendant’s activity imposes an absolute DUTY to make safe;
(2) the dangerous aspect of the activity was the actual and proximate cause of the plaintiff’s injury; and
(3) the plaintiff suffered DAMAGE to person or property.

Question 81

Strict Liability: Animals

Answer 81

An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals; “one free bite rule”; strict liability for pet crocodile bite. (Liability for domestic pets only at second instance; strict liability for those with inherent dangerous propensities from the outset (result not changed if “tamed”).

Question 82

Strict Liability: Abnormally Dangerous Activities

Answer 82

Courts applying the rule of Ryland v. Fletcher generally impose two requirements for finding an activity to be abnormally dangerous: (1) the activity must create a foreseeable risk of SERIOUS HARM EVEN WHEN REASONABLE CARE IS EXERCISED by all actors; and (2) the activity is NOT A MATTER OF COMMON USAGE in the community.

Question 83

(EXAM TIP) Strict Liability & Reasonable Care

Answer 83

Exam questions testing on strict liability often include a statement in the facts or in an answer choice that the defendant exercised reasonable care. Remember that NO AMOUNT OF REASONABLE CARE on the part of the defendant will relieve him of liability in a strict liability situation.

Question 84

Strict Liability: Extent of Liability

Answer 84

As with negligence, the D’s liability extends only to foreseeable Ps. Also, the harm must result from the kind of danger to be anticipated from the dangerous activity or animal (including harm caused by fleeing from the perceived danger). Hence, strict liability does NOT apply when the injury is caused by something other than the dangerous aspect of the activity (e.g., a dynamite truck suddenly blows a tire and hits a pedestrian but does not explode).

Question 85

Strict Liability: Defenses

Answer 85

In contributory negligence states, contributory negligence is no defense if plaintiff has failed to realize the danger or guard against it. It is a defense if plaintiff knew of the danger and his unreasonable conduct was the very cause of the harm from the wild anime or abnormally dangerous activity. Assumption of the risk is a good defense to strict liability. Most comparative negligence states apply their comparative negligence rules to strict liability cases.

Question 86

Product Liability: Prima Facie Case

Answer 86

Who can you successfully hold liable for products liability? Any commercial supplier as long as you can establish two requirements:

(1) The defect causing the injury must must have existed at the time the product left THAT defendant’s control;
(2) Plaintiff needs a “workable” theory: (a) negligence or (b) strict liability.

Question 87

Products Liability: Negligence Theory

Answer 87

(Focus is on defendant’s CONDUCT); Negligent Conduct (possibilities: design, manufacture, warnings, inspections); Who can be a plaintiff? Anyone who is within the “foreseeable zone of risk” including bystanders; Who can be a defendant? Manufacturers for the overwhelming majority of time, rarely retailers/wholesalers. (One who labels product as his own or who assembles product from component parts made by others can be liable for negligence even though they were not personally negligent.)

Question 88

Products Liability: Strict Liability Theory

Answer 88

(Focus is NOT on defendant’s conduct); Strict Liability Test? An “unreasonably dangerous condition”; Who can be a plaintiff? Anyone who is within the “foreseeable zone of risk” including bystanders; Who can be a defendant? Everyone!

Question 89

Products Liability: Bar Exam Favorites

Answer 89

(1) Warnings: Adequate warning will generally insulate from liability; (2) The Feasible Alternative Approach: Should cure of defect for minor amount of money (warning will not save); (3) Strict liability is unavailable when product use is incidental to performance of services.

Question 90

Nuisance: Private

Answer 90

Private nuisance is a substantial, unreasonable interference with another private individual’s use or enjoyment of property that he actually possess or to which he has a right of immediate possession.

Question 91

Nuisance: Public

Answer 91

Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community, e.g., using a building for criminal activities such as prostitution. Recovery by a private party is available for a public nuisance only if a private party suffered unique damage not suffered by the public at large.

Question 92

Nuisance: Remedies

Answer 92

DAMAGES: Plaintiff will usually be awarded damages; INJUNCTIVE RELIEF: If the legal remedy of damages is unavailable or inadequate (e.g., the nuisance will cause irreparable injury), injunctive relief will be awarded. In this case the court will consider the relative hardships. However, hardships will not be balanced where defendant’s conduct was willful.

Question 93

Nuisance: Defenses

Answer 93

(1) Legislative Authority (ex., zoning laws–not always a complete defense); (2) Conduct of Others (ex. 10 steel mills polluting a stream); (3) Contributory Negligence [generally not a defense, unless P’s case rests on a negligence theory]; (4) Coming to the nuisance is ok.

Question 94

Vicarious Liability (Liability for Another’s Tort)

Answer 94

(1) Respondeat Superior
(2) Independent Contract Situations
(3) Partners and Joint Venturers
(4) Automobile Owner for Driver
(5) Bailor for Bailee
(6) Parent for Child
(7) Tavernkeepers

Question 95

Joint and Several Liability

Answer 95

Where two or more negligent acts combine to proximately cause an individual injury, each negligent actor will be jointly and severally liable (i.e., liable to P for the entire damage incurred). If the injury is divisible, each defendant is liable only for the identifiable portion.