Flashcards in Add-ons Deck (120):
Is the requirement of a license to drive meant to prevent pedestrians in crosswalks from being hit by unlicensed drivers?
No, The requirement of a driver's license is for registration and identification of drivers
If you don't have a current driver's license, does that establish your incompetence to drive?
If you cause an injury while driving without a current license, is that a negligence per se situation?
No, because your lack of a license is not a safety statute violation
If someone harm someone while driving with an expired license, does that create strict liability on the basis of engaging in an abnormally dangerous activity?
If a mechanic inspected your brakes, and then they failed, can that be the basis for strict liability?
No, Because he only inspected them, he did not install new ones
Can a Product be defective if it doesn't include a feasible safety device?
Yes, if the device would prevent injuries foreseeably incurred in ordinary use
Can a manufacturer avoid SPL if he offers a safety device for a product as an additional purchase?
No, because that indicates the company had reason to foresee that the product, without the safety device, would pose a significant risk to someone who operates it
If it is feasible to install a safety device, does a manufacturer fulfill its obligation to make a safe product by warning the purchaser that the product is unsafe?
If a company supplied and installed a defective engines in the normal course of business in maintaining and repairing private airplanes, what are they considered?
A commercial seller of the defective product, so they can be held strictly liable for damages caused by the pilot as a result of his use of the defective engine (The pilot can recover the full amount of the judgment against him from this commercial seller)
If necessity privileges you to trespass on someone's property, is the owner allowed to untie your boat?
No, then he has committed and unprivileged trespass against your property, and he must pay for the loss of your boat
If an upstream owner of property stops the flow of the stream of water to downstream property, what is that considered?
Private nuisance, because it interferes with the use of enjoyment of the downstream property
If The fact pattern says that joint and several liability has been abolished, what does that mean?
Each defendant is liable only for his own share of the damages, not the entire award
Contribution between tortfeasors is only available when what?
One defendant has paid more than his determined share of the damages
What are the obligations and status of a city?
They are considered a municipality with tort immunity limitations set by the state
Are municipalities immune from tort liability?
Usually, with a few exceptions
What Are the exception that apply to municipality immunity from tort liability?
1. Torts committed in a proprietary capacity
2. Municipality created nuisances
3. Negligently maintained municipal property, like roads, streets, sewers
Does a municipality owe a higher a duty of care than a landlord to an invitee?
No, The standard is to make conditions reasonably safe within a reasonable period of time
If a parent doesn't exercise control about a known propensity of his child, is he vicariously liable for the child's tortious behavior?
No, he is liable for his own negligence in failing to control the child
If a bystander forcefully pushed a pedestrian, thinking unreasonably that he was protecting her, can he be liable for battery?
Yes because He acted intentionally, and made harmful contact, and his actions were not privileged, because he had to of had a reasonable belief, and his belief was not reasonable
Can a child as young as for be held capable of forming tortious intent and be liable for his actions?
Yes, any minor can be liable for an intentional tort as long as he possesses the requisite intent
Work in public places often gives rise to what kind of duty on the part of the landowner?
A non-delegable duty
Of a mall contracts with an independent contractor to fix an escalator, who will be liable if a customer is injured?
The mall, because their duty to maintain safe conditions is non-delegable
If a newspaper writes about a political candidate's ex-wife, saying she was unfaithful, can she have a claim for defamation as a private person suing on an issue of public concern?
Yes, Because she is not a public figure, so she doesn't have to prove New York Times malice, she only has to prove the Gertz standard
What is the Gertz standard for defamation?
Must Be proven that the newspaper:
- published false information
- was negligent in investigating the accuracy of the information
- caused actual harm to the plaintiff
What are the three major categories of intentional torts?
Injury to body, emotions, and property
What are the three types of intentional torts that qualify as injury to the body?
Assault, battery, false imprisonment
What are the two types of injury that are classified under intentional torts for injury to the emotions?
Distress associated with a separate tortious injury, and IIED
What are the two extra considerations for false imprisonment?
If the plaintiff was aware of the confinement or actually harmed, and whether there was a reasonable means of escape
What are The two major categories for intentional torts for injury to property?
Injury to real property, and personal property
What is the purpose of a driver's license?
For registration and identification of drivers
How can you recover on a battery claim against a child?
If you can show the child intended to touch you in a way that would be harmful or offensive, even if he was too young to understand what he was doing or appreciate the wrongfulness
Must you have proof of intent to cause injury or knowledge that injury might result to recover on the battery claim?
No, as long as you intend to touch the person in a way that will be harmful or offensive, that is enough
If you buy a television from the store, and four years later it starts on fire while you're sleeping, does that establish negligence on behalf of the store?
No, Res Ipsa Loquitur would not apply here, because the manufacturer is the one that might've been negligent, or the negligence might've happened after the sale
Is lack of privity a barrier to negligence claims based on malfunctioning products?
No, anyone foreseeably put at risk by the defective product and actually injured by it can sue for negligence
If you buy a product with a warning on it, and your friend uses the product, what is your duty?
Duty of a reasonably prudent person to warn the friend of the risks
Does the term nondelegable duty apply to many factors in strict liability claims?
What are the two types of nuisance?
Private nuisance and public nuisance
What are the two extra questions that you should ask when you're dealing with public nuisance?
- if a representative of the public is the one suing
- if the plaintiff has suffered damages that are different in kind from those inflicted on the public
What are the two different torts involved in an injury to personal property?
Conversion and trespass to chattels
What is the question you should always ask once you've dealt with the elements of conversion and trespass to chattels?
If there is an available remedy
What are the two different kinds of consent?
Express and implied
What are the things that can negate consent?
Lack of capacity, fraud, duress, mistake, exceeding the scope
What are the four things that you have to consider for both self defense and defense of others?
- was there a reasonable belief?
- unprivileged attack
- reasonable force
What are the two major things you need to think about for defense of property?
- reasonable non-deadly force
- in order to recover personal property you must make a demand for its return
What are the three major areas of the defense of authority?
Privilege to arrest, shopkeepers' privilege, maintain discipline
What are the two different types of necessity?
Private and public
What are the four major categories of defenses to intentional torts?
Consent, self defense/defense of others/defense of property, authority, necessity
The two major things that have to be discussed for private necessity?
- injured property of another
- avoidance of substantially greater harm to own property or self
What are the two things that have to be considered for public necessity?
- injury of the property of another
- avoidance of substantially greater harm to public
After your discussed intentional torts and the defenses, in the checklist, what is the next category?
If you hire an independent contractor, are you vicariously liable for their negligence?
If a landowner holds open his land to the public, he has a non-delegable duty to do what?
Keep the premises safe for business visitors
If you own a mall, and a guest is injured on your escalator, that was just fixed by an independent contractor, who is liable for the negligence?
The owner, because he has a nondelegable duty to keep the premises safe, even though the negligence was from the independent contractor
What is the usual remedy for public nuisance?
What is the only time that injunctive relief is given for public nuisance?
When damages are unavailable or an inadequate remedy
If you are a police officer, and you're driving back from the scene of an accident, does the firefighters rule apply to you if you were hit in that circumstance?
No, because being struck by a car in normal traffic is not a special risk inherent to dangerous police work, and the firefighters rule only bars claims for injuries that come from risks that are unique or special to the plaintiffs inherently dangerous work
A defendant's duty to a known child trespasser is also referred to as what?
Attractive nuisance doctrine
If you have a trampoline on your land, the attractive nuisance doctrine applies if you knew or should've known what four things?
1. Children come to your property when you are not home
2. Kids play on the trampoline
3. Using the tramp would likely cause injury because kids wouldn't realize the danger of using it without mats
4. The expense of remedying the situation was slight compared to the probability of injury
Must a Child be lured onto the premises in order for attractive nuisance doctrine to apply?
No, that was the old rule
Can you recover under a negligence action for pure Economic loss to a plaintiff as a result of an injury suffered by a third-party?
No, with the exception of a wrongful death claim allowed by statute
Can Assumption of the risk be an affirmative defense to strict liability?
Yes, like when a state employee willingly takes on auditing duties in a potentially dangerous explosives factory
At common law, parents are not vicariously liable for the tortious conduct of their children, but they can be liable for their what?
Own negligence in allowing or encouraging the child to act in a dangerous way, or knowing of a child's tendency to injure others and not using due care to control that tendency
If parents encourage their child to be aggressive and tough and they know their child has a reputation for being a bully, can they be liable for their child's actions in injuring another child?
Yes, Because they did not exercise due care
What Is considered a substantial interference for nuisance?
Something that would be offensive, inconvenient, or annoying to an average person of the same community
What are the duties that a supermarket owes?
- take reasonable steps to make conditions on the premises reasonably safe (inside and out)
- use reasonable care for activities
- use reasonable care to protect customers against foreseeable criminal acts of third persons/animals
If a supermarket has actual knowledge of violent crimes on the premises, and they fail to take reasonable steps to protect customers, what happens?
they are liable
If a product doesn't have an adequate warning, what is that treated as?
If an injury would have occurred even with a legally sufficient warning, can someone that is injured recover?
Can You recover for emotional damages as the consequence of a tort?
Yes, they can be tacked on as parasitic damages caused by another tort so long as the plaintiff suffered physical injuries
If An underlying tort only causes property loss, can you recover for emotional distress also?
No, there has to be physical injury
If a doctor failed to observe the medical standard, and no injury resulted, is that medical malpractice?
No, you can only have malpractice is an injury resulted
What's things have to be proved for medical malpractice?
- Proof that a medical standard was breached
- chain of causation to the injury
Is legal causation superseded by a doctor's decision to end artificial life support?
If You negligently park in a crosswalk, what is your responsibility?
You bear the responsibility for harm caused to negligent jaywalkers because pedestrians were forced to walk outside of the crosswalk and that is it for seeable consequence of what you did
Someone is negligently parked across the crosswalk, and you have to jaywalk because you can't use the crosswalk, is that an assumption of the risk?
Can bad babysitting ever be a source of strict liability?
No, only negligence
If you are going to a bowling alley to bowl, and you drop your kid off in childcare, what category do you belong in and what is the duty owed to you?
You are a business invitee and owed a duty of ordinary care, your child is a business invitee because he is accompanied by you
Recovery for negligent misrepresentation is usually limited to what?
Pecuniary loss, unless it involves a risk of physical harm
If you're fired from your job because of someone's negligent misrepresentation, and you immediately get a better position, what can you recover for your emotional harm?
Nothing, because you didn't suffer any actual harm from the misrepresentation other than your emotional distress
Are independent contractors liable for their own torts?
What is an exception for an independent contractor being liable for his own tort?
If he is carrying out an inherently dangerous activity on the employer's property that causes an injury or trespass ie) blasting
If you contact an independent contractor to build a swimming pool, and he must use explosives in the job, and he hurts someone with those explosives, who is liable?
You are, because you have a nondelegable duty to the plaintiff because the contractor's use of explosives in a residential neighborhood is inherently dangerous
Anytime negligence must be inferred, what is at issue?
Res Ipsa Loquitur
Res Ipsa Loquitur establishes a prima facie case for negligence when what things occur?
1. D had exclusive control of the instrumentality
2. Plaintiff proves he was not responsible for the injury
If a landlord owns a building occupied by tenants and a pedestrian is hurt by a flowerpot falling from one of the tenant's windows, what would the pedestrian have to prove against the landlord in order to recover?
That he did not have exclusive control of the flowerpot during the relevant time frame, so Res Ipsa Loquitur could not establish negligence
Is a landlord responsible for conditions created by tenants in their apartments?
If you are well known in the community, does that make you a public figure?
No, you're still a private party because you're not an elected official or a celebrity and you have not placed yourself in the forefront of a public controversy
How do You determine if a matter is of public concern?
By looking at the content, form, and context of the publication
If the company doesn't know that their product is dangerous, can they be liable for failure to warn?
No, they're only required to warn of dangers that were, or reasonably should have been known to them at the time the product was delivered
In a nuisance situation, when would you balance the competing interests?
Only when injunctive relief from the nuisance is sought (not when damages are the only thing being asked for)
If you lend your car to someone knowing that the brakes are defective, but failed to warn that person of it, and then remember and call their wife and warm them, but the brakes fail and your friend is hurt because the wife doesn't warn him, who is liable?
The wife's failure to warn is a foreseeable risk taken when you failed to warn your friend, and is dependent, so it doesn't supersede your own liability
When does a directed verdict allow judgment?
If the evidence, when viewed in the light most favorable to the nonmoving party, is enough for a reasonable person or a jury to not be able to disagree
When is a directed verdict encountered?
At the close of the evidence and before the matter goes to a jury
Some states require a land owner that borders cattle grazing lands to do what?
Erect a fence
If you are in a state that has a fence-out statute, what is the only way you can be liable for your cattle's damage?
If you intentionally drive your cattle on to someone else's land
If you drive a truck that has a defect, can you be strictly liable for it?
No, you are a user, not a manufacturer or seller of the truck
If you are the driver of a meat truck where meat hangs and because of a defect in the design, the meat can swing and cause you to tip over, what is your liability?
If you know about this dangerous propensity and there is a reasonable means to increase the safety at a minimal cost, you're liable for negligence
If a fact pattern Says that two friends are in the habit of playing practical jokes on one another, and the one put something in the other's food that he knows will make him very sick, what has happened?
A battery, don't be fooled by the red herring that they are friends and playing a joke
When are waivers most easily justified?
When an activity poses inherent risks that are familiar to the participants and cannot be entirely illuminated without removing the pleasure from the activity
What is the threshold requirement for product liability claim?
The defect existed at the time the product left the defendant's control
If a reconditioned saw injures someone, can the original producing company be liable for it?
No, because the defect did not exist at the time the saw left that company's control, and reconditioned saw is a substantial alteration of the product, which would sever strict liability from the company
What does a standalone claim for negligent infliction of emotional distress require?
A negligent act that:
- result in a personally witnessed injury to a close family member
- or if the plaintiff was in the zone of danger himself
If a driver accidentally hits a child that ran out into the street, and the child's mom watched the incident, can the driver be liable for NIED?
Probably not, because he was probably not negligent
Is contributory negligence a Defense to strict liability?
No, but if it is an ultrahazardous activity, it can be a defense if the plaintiff knew of the danger and his unreasonable conduct was the reason the activity caused injury because his conduct is deemed contributory negligence and treated as an assumption of the risk
Can a landowner be liable for the act of an independent contractor?
Not usually, unless he was negligently hired, with the exception of the homeowner having a nondelegable duty that includes ultra dangerous activities on his land
If the homeowner is aware of his contractor's ultra hazardous activity, who is liable for damage that results?
The homeowner, because ultrahazardous activity gives rise to strict liability, and a homeowner has a nondelegable duty for ultrahazardous activity that takes place on his land
Does respondeat superior apply to independent contractors?
No, because they are not employees
Can a university be vicariously liable for the actions of its students?
No, there is no master/servant relationship between universities and their students unless the student was authorized by a professor to do something
If a professor authorizes students in his class to do something, does vicarious liability apply?
Yes, the students become agents of the University
If the word must is used, why should you be careful about that?
It is probably a trap
Is Expert testimony absolutely necessary to establish a professional standard of care?
No, it is not required when the standard and breach are common knowledge
Can the owner of an animal be responsible for its damage when he escapes the owner's property?
If a construction company specializes in the construction of certain facilities, will they be liable for damages caused by defective design?
Yes, because they knew or should've known of the dangerous defect
If you purchase a product that has a warning on the box, and you dispose of the box, and then your roommate uses the product, what is happened?
The product has substantially changed from the condition it was sold in
If two people's negligence caused one injury, and the facts do not indicate that either action alone would've caused the injury, who would be liable and what kind of liability would it be?
It would be joint and several liability and both people will be liable
A Claim for defamation must prove that there was what?
- defamatory communication of fact about the plaintiff
- published to a third person that understood it
- resulting in harm to the plaintiff
What is The only way that a qualified privilege to testify can be overcome?
If the person's statement was made with knowledge that it was false or reckless disregard for its truth
If you testify about something that you reasonably believe is true, and it turns out not to be, does your qualified privilege to testify get overcome?
What does a motion for judgment notwithstanding the verdict require?
Finding by the judge that the verdict could not have been reached by a reasonable jury