Case Pithies

Question 1

[Durre v. Wilkinson Development Inc.] “Sign Falls on Truck, Kills Passenger”
Statute of Repose: Enacted to free certain occupations/industries from liability for past negligent acts. Puts a limit on the right to bring civil action from when the last culpable act of DEF, rather than when injury occurred or was discovered.
Anderson v. Zamir
“I can rear-end people and not pay for it.”

Answer 1

Damages caused directly or indirectly by the actions of D are viable for compensation, even if they are only found long after.

Question 2

Van Camp v. McAfoos.
“Brat hits woman in the ankle with tricycle.”

Answer 2

There must be fault assigned in the cause of action for liability to be found.

Question 3

McElhaney v. Thomas.
“Whoops I accidentally ran you over.”

Answer 3

Intent to make an offensive contact is sufficient for damages to be awarded based on harm that unintentionally results.

Question 4

Cohen v. Smith
“Male nurse touches religious woman.”

Answer 4

Though a battery may not be harmful, it may still be offensive contact due to the insult itself.

Question 5

White v. Muniz
“Grandma is attacking senior care workers again.”

Answer 5

Under dual intent, the intention to cause harm or offense is required.

Question 6

Wagner v. State
“Mentally disabled man attacks woman in Target.”

Answer 6

Under single intent, the intent to contact itself is sufficient for battery even if the person committing battery doesn’t know that they are committing battery.

Question 7

Garrat v. Dailey, 1955.
“Kid pulls chair and Grandma breaks her hip.”

Answer 7

Intent requires the tortfeasor to either intend to harm or have a sufficient certainty that harm will result from his actions

Question 8

Baska v. Scherzer, 2007.
“I didn’t mean to break your jaw, I meant to break his!”

Answer 8

Transferred intent means that if person A intends to harm person B, but harms person C by accident, the harm is still intentional.

Question 9

Cullison v. Medley, 1991.
“Jump astraddle.”

Answer 9

If D causes P an imminent apprehension of harmful contact, it is still assault, even if no harmful contact results, such as waving your fist under someone’s chin.

Question 10

McCann v. Wal-Mart
“Remember 24/7 fitness Kai?”

Answer 10

The gist of false imprisonment under common law is conduct by the actor which is intended to, and in fact does, confine another within boundaries fixed by the actor where, additionally, the victim is either harmed or conscious of the confinement.

Question 11

Chanko v. ABC
“This dying man and his family will make for great TV!

Answer 11

Four elements of IIED: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.

Question 12

GTE Southwest Inc. v. Bruce “It’s not abuse, just his management style!”

Answer 12

The factors of Extreme and Outrageous conduct are: Plaintiff vulnerability, Plaintiff attempt to remedy, Pattern of conduct over time, Abuse of power.

Question 13

Roth v. Islamic Republic of Iran
“Iran gets sued for terrorism.”

Answer 13

Bystander IIED elements: Plaintiff must be immediate family of V and present at the time of the conduct. (In this case, FSIA statute modifies this to not apply to acts of terrorism)

Question 14

Briggs v. Southwest
“Is drilling from a shared oil well trespass?”

Answer 14

Elements of Trespass:
P must prove ownership or possessory interest in the land.
An intentional and tangible invasion, intrusion, or entry by D onto that land.
That harms P’s interest in exclusive possession.

Question 15

Reif v. Nagy
“Returning holocaust paintings to heirs.”

Answer 15

MW: Thieves can’t confer good title.

Elements of Conversion: D must intend to exercise “substantial dominion” over the chattel:
Substantial Dominion factors: extent/duration of control
: D asserts a right to the property
: Whether D is acting in good faith
: Harm done
:Expense or Inconvenience caused

Question 16

School of Visual Arts v. Kuprewicz
“Spammers get what they deserve.”

Answer 16

Elements of Trespass to Chattel:
DEF intentionally and without justification or consent
Physically interfered with the use and enjoyment of PLNTF’s personal property
PLNTF was harmed as a result
Can be proven by damages to the chattel or loss of use or access
Remedy is paying for the damage to the property.

Question 17

Grimes v. Saban
“Girlfriends attack each other over social media. Self defense?” elements of self defense

Answer 17

Elements of Self-Defense:
(a) A person is justified in using physical force to defend himself or a third person from what is reasonably believed to be the use or imminent use of unlawful force by another. (b) If A is true, they have no duty to retreat and have the right to stand their ground. (c) If A and B are true, a person is not justified if they were the initial aggressor unless they previously withdrew from the encounter and communicated intent to do so, but the latter person continues to attack or threaten.

Question 18

Katko v. Briney
“Shotgun booby trap for uninhabited property”

Answer 18

The value of life and limb outweighs the interest of a possessor in his land, and possessor has no privilege to use force likely to cause death or serious harm against a trespasser unless the intrusion threatens death or serious harm to the inhabitants.

Question 19

Gotarez v. Smitty’s Super Valu, Inc.
“False accusation of 67c air freshener theft leads to injury and detainment.”

Answer 19

Shopkeeper’s privilege: One who reasonably believes that another has tortiously taken property can detain without arresting for only the time necessary for a reasonable investigation of the facts.

Question 20

Wulf v. Kunnath
“Doctor gives playful slap after years of playful slaps.”

Answer 20

MW: Silence and inaction may manifest consent where a reasonable person would speak if he objected.

Apparent or Implied Consent ordinarily bars recovery.

EX: Apparent consent: words or conduct reasonably understood to be intended as consent is as effective as actual consent. Silence and inaction may manifest consent where a reasonable person would speak if he objected. It is only when notice is given that consent can’t be assumed.

Question 21

Robins v. Harris
“Prison guard gets head from inmate. Consent or coercion?”

Answer 21

Consent is not available as a defense when there is a significant position of authority, such as a jailer and inmate. Also, apparent consent is not a defense to sexual assault.

Question 22

Hunt v. Zuffa LLC.
“Brock Lesnar sued for punching too hard in MMA because he does steroids.”

Answer 22

One who enters into a sport may be taken to consent to physical contacts consistent with the understood rules of the game.

Question 23

Kaplan v. Mamelak
“Doctor operates on wrong part of spine, claims consent.”

Answer 23

Consent can extend to touching by a doctor that not literally consented to, involving complications inherent to the procedure, but not to a substantially different treatment from that consented to.

Question 24

Hill v. Sparks
“Bulldozer driver runs over sister who was riding on the outside, Negligence?”

Answer 24

Restatement (2) 289: If the actor has more than the minimum knowledge of a standard
“reasonable man” he is required to exercise these superior qualities as reasonable under the circumstances

Question 25

Stewart v. Motts “PLNTF tells mechanic to start an engine after pouring gasoline on it, injury results.”

Answer 25

Restatement (2) of Torts 298: Reasonable care is the only standard of care, but the exact level of care which is reasonable varies proportionately to the danger in the act. The greater the danger, the greater the care.

Question 26

Posas v. Horton “Tailgater rear-ends someone due to jaywalker forcing stop, negligence or sudden emergency?”

Answer 26

Test for sudden-emergency: 1. DEF had been suddenly placed in position of peril through no negligence of his own 2. Acted as a reasonable person in response to the emergency

Question 27

Shepherd v. Gardner Wholesale “Half-blind woman trips over concrete slab, did she need a higher standard of care?”

Answer 27

Physical Impairment Rule: A person with a physical disability has no special higher standard of care, only such care as a reasonable person with a similar infirmity would have acted under such circumstances.

Question 28

Creasy v. Rusk “Nurses wrestle combative man with Alzheimers and sue when they get hurt.”

Answer 28

CL: The general duty of care imposed on adults with mental disabilities is the same as that for adults without mental disabilities, regardless of their capacity. Duty of care between patient and caretaker created by relationship, so DEF wins.

Question 29

Stevens v. Veenstra “14 year old driving student hits pedestrian, adult standard of care?”

Answer 29

Children held to standard care of reasonably careful child of same age, intelligence, experience BUT: MI policy: All drivers, even minors, held to same standard of care

Question 30

Martin v. Herzog “Man without headlights in dark kills horse carriage driver”

Answer 30

Statutes such as road light requirements apply a clear duty of care, violation of the relevant statute is negligence per se. .

Question 31

Smith v. Wells “Man causes 4 car pile up by tailgating.”

Answer 31

DEF clearly violated the law by tailgating, and therefore Negligence Per Se is established. Therefore there was no need for a jury to determine fact.

Question 32

O’Guin v. Bingham County “Kids die in landfill”

Answer 32

Test for replacing standard of care with duty from a statute/regulation: 1. Statute or regulation must clearly define the standard of conduct 2. Must have been intended to prevent the type of harm caused 3. PLNTF must be a member of the class the statute was designed to protect 4. Violation must have been the proximate cause of injury

Question 33

Goldstein v. J.B. “Anesthesiologist records himself SA’ing unconscious patients.”

Answer 33

Must have been intended to prevent the type of harm caused Statute here was intending to prevent incompetent and improperly trained employees from being hired and harming patients in that manner

Question 34

Getchel v. Lodge “Moose Excuse.”

Answer 34

Emergency: Violation of statute/regulation will ordinarily be excused when the actor is confronted with an emergency which is not caused by his own misconduct.

Question 35

Pipher v. Parsell “Girl repeatedly grabs steering wheel and causes car crash.”

Answer 35

A driver owns a duty of care to his passengers. When actions of a passenger that interfere with the driver are foreseeable, failure to prevent such conduct may be a breach of duty to other passengers or the public.

Question 36

Limones v. School District of Lee County “Kid in vegetative state after practice because no one brought an AED when he collapsed.”

Answer 36

School employees must reasonably supervise students during activities that are subject to the control of the school, reasonable care under the circumstances includes technology such as the AED.

Question 37

Indiana Consolidated Insurance Co. v. Mathew “Brother tries to start lawnmower and catches the garage on fire.”

Answer 37

Human life is above property, one may be deemed negligent in risking life or serious injury to save mere property.

Question 38

Stinnett v. Buchele “Construction worker falls fixing doctor’s barn and blames doctor for injuries.”

Answer 38

An employer’s obligation to its employee isn’t providing a perfectly safe place to work. Liability of an employer regarding safety equipment rests on the employer having a better and more comprehensive knowledge than the employee.

Question 39

Bernier v. Boston Edison Co. “Fender-Bender turns into catastrophic series of events, with a light pole falling on teens.”

Answer 39

A designer should anticipate the environment in which its product will be used, and must design against reasonably foreseeable risk in that setting. Likelihood of accidents need not be high when injuries might be serious. No designer is required to make a product that is fully accident free

Question 40

United States v. Carroll Towing Co. “Boat sinks due to missing bargee during work hours.”

Answer 40

Owner’s Duty: 3 FACTORS (1) Probability of danger. (2) Injury cost if danger occurs. (3) Burden of adequate precautions. Liability depends on: Probability x Injury > Burden. B

Question 41

Miller v. Warren “Motel fire, no smoke alarms.”

Answer 41

Statutory requirements reflect a minimum standard of care, not a maximum obligation. Compliance with a statute is not a full defense, just evidence of reasonable care. If DEF knows or should know of some risk that could be prevented reasonably they can be held negligent even if the measures were not required by statute.

Question 42

Byrne v. Boadle “Barrel mysteriously falls on pedestrian.”

Answer 42

Res Ipsa Elements: (1) The event is of a kind that normally doesn’t occur without negligence; (2) other responsible causes are sufficiently eliminated by the evidence; and (3) The indicated negligence is within the scope of DEF’s duty to PLNTF

Question 43

Koch v. Norris “Power line randomly falls and starts fire.”

Answer 43

Res Ipsa is applied in the absence of a substantial, significant, or probably explanation other than negligence.

Question 44

Giles v. City of New Haven “PLNTF injured jumping out of shaky elevator.”

Answer 44

If the jury could reasonably find DEF was more likely responsible than someone else, even without absolute proof of control, the T/C must allow the jury to draw that inference.

Question 45

Collins v. Superior “Old woman comes back from health facility grievously injured.”

Answer 45

Where there are multiple actors, and either could have caused the harm, and both are named in the complaint, PLNTF can raise the issue of Negligence RIL. RSTMT3 17 cmt. f: Typically, PLNTF has a burden to establish that one of the specific actors was probably the negligent one for RIL. However, if DEF’s have an ongoing relationship where they share responsibility, and an accident happens establishing negligence RIL for one, liability can be assigned to both.

Question 46

[Santiago v. First Student, Inc.] “8th grade memory of nonexistent bus crash”

Answer 46

PLNTF has burden of proof to prove existence of material facts.

Question 47

[Upchurch v. Rotenberry] “Swerving to avoid animal kills passenger, possibly drunk?”

Answer 47

Credibility Rule: Credibility of witnesses is almost always a question for the jury. Neither T/C nor A/C have any right to interfere in the conclusions of the jury regarding circumstantial evidence, barring some clear indication that jurors ignored their own duty.

Question 48

[Thoma v. Cracker Barrel Old Country Store, Inc.] “Trip and fall case”

Answer 48

To recover in Trip-and-fall, PLNTF must show Some negligent act of DEF caused his injury OR DEF had actual knowledge of danger and failed to warn PLNTF OR Show that danger existed for a sufficient time such that DEF should have known of the danger

Question 49

[Wal-Mart Stores, Inc. v. Wright] “Woman slips in Wal-Mart, employee manual not followed”

Answer 49

Failure to follow a party’s precautionary steps or procedures is not necessarily failure to exercise reasonable care.

Question 50

[Duncan v. Corbetta] “P falls down staircase made of shoddy wood”

Answer 50

Proof of a general custom in an industry can establish a standard by which ordinary care may be judged even if custom exceeds the standard of statute.

Question 51

[The T.J. Hooper] “Tugboats lacking radio caught in storm with barges”

Answer 51

Industry custom is not a defense against negligence if the custom itself is negligent.

Question 52

Right v. Breen “No injury car accident. sues for nominal injury damages.”

Answer 52

Technical legal injury does not apply to negligence. Conduct that is merely negligent, without proof of actual injury, is not valid for a tort claim.

Question 53

Berry v. Chicago “City exposes citizens to risk of lead in the drinking water”

Answer 53

An increased risk of harm is not an injury in of itself. There must be a showing of actual or realized harm before permitting recovery.

Question 54

Ziniti v. New England “Train hits driver who argued for more signs.”

Answer 54

“But for” Causation: PLNTF must show that the harm would not have occurred but for DEF’s conduct; such that tortious conduct was a necessary precondition for the harm.

Question 55

Landers v. East Texas Salt Water Disposal Company “Fish-pond flood.”

Answer 55

Where the tortious acts of two or more wrongdoers join to produce one indivisible injury, all of the wrongdoers will be held jointly and severally liable for the entire damages and the injured party may sue against any one or all.

Question 56

Lasley v. Combined Transport, Inc. “Drunk driver rear ends truck stopped by glass.”

Answer 56

When the negligence of multiple tortfeasors combines to produce harm, each tortfeasor whose negligence was a cause of the harm may be held liable. One tortfeasor being more negligent than the other doesn’t mean they aren’t both negligent.

Question 57

Summers v. Tice “Duck Hunt Gone Wrong”

Answer 57

When each DEF engaged in tortious conduct, that results in harm where either could have caused the harm, they will be held jointly liable. To avoid liability, burden of proof is shifted to the DEFs.

Question 58

Mohr v. Grantham “Mistreatment of head injury causes brain damage.”

Answer 58

Lost Chance Doctrine: Lost chance of a better outcome is a valid cause in specifically medical malpractice cases. Burden of proof is on PLNTF. The compensable injury is the lost chance itself, not the harm. EX: PLNTF is only given damages proportionate to the lost chance of avoiding the overall harm, rather than the total value of the harm. Probability of outcome with negligence vs without.

Question 59

[Thompson v. Kaczinski]”Runaway Trampoline Injures Driver”

Answer 59

Liability is limited to those harms that result from the risks that made the actor’s conduct tortious. RSTMT 3 of Torts

Question 60

[Abrams v. City of Chicago]”Drive to hospital ends in T-bone”

Answer 60

As a matter of law, a City could not have reasonably anticipated that a refusal to send an ambulance would likely result in PLNTF being T-boned by a drunk driver.

Question 61

[Palsgraf v. Long Island Rail]”Firework vibrations cause panel to fall on woman.”

Answer 61

Defendant is liable for (a) type of foreseeable risk and (b) to classes of persons foreseeably risked

Question 62

[Durre v. Wilkinson Development Inc.] “Sign Falls on Truck, Kills Passenger”

Answer 62

Statute of Repose: Enacted to free certain occupations/industries from liability for past negligent acts. Puts a limit on the right to bring civil action from when the last culpable act of DEF, rather than when injury occurred or was discovered.

Question 63

[Dasha v. Maine Medical Center]”Negligent misdiagnosis causes brain damage”

Answer 63

Equitable Estoppel: 1. Delay in filing an action induced by DEF 2. DEF misled the PLNTF 3. PLNTF acted on the information to the extent that he failed to pursue his action in a timely manner Equitable Tolling: When a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action

Question 64

[Bennett v. Stanley]”Kid drowns in neighbor's pool/pond” Attractive Nuisance Doctrine: Landowner is liable for child trespassers harmed by an artificial condition on land if: (5 ELEMENTS)

Answer 64

(a) Owner knows or has reason to know children are likely to trespass (b) Owner knows or has reason to know the condition will involve an unreasonable risk of death or serious bodily harm to the children (c) The children do not discover the condition or realize the risk (d) The burden of eliminating the danger is slight compared with the risk (e) Owner fails to exercise reasonable care to protect the children or eliminate the danger

Question 65

[Vreeland v. Ferrer] “PLANE HIT GROUND”

Answer 65

Federal Preemption: Federal preemption must be very carefully scrutinized when it touches on areas traditionally governed by State Law (like Torts)

Question 66

[Doser v. Interstate Power Co.]”Bus driver crashes without fault”

Answer 66

Common Carriers must exercise the “highest degree of care” in not only foreseeing the danger, but actively guarding against it.

Question 67

[Diocese of El Paso v. Porter]”Church Fair Fire”

Answer 67

Invitee: Expressly or Impliedly Invited; and/or for the benefit of the owner Owed duty of RC Licensee: Invited but with “limited license” Owed duty to avoid willful/wanton injury Trespasser: No right to be present Owed duty to avoid willful/wanton injury, unless the trespasser is known or foreseen

Question 68

[Bennett v. Stanley]”Kid drowns in neighbor's pool/pond” Attractive Nuisance Doctrine: Landowner is liable for child trespassers harmed by an artificial condition on land if: (5 ELEMENTS)

Answer 68

(a) Owner knows or has reason to know children are likely to trespass (b) Owner knows or has reason to know the condition will involve an unreasonable risk of death or serious bodily harm to the children (c) The children do not discover the condition or realize the risk (d) The burden of eliminating the danger is slight compared with the risk (e) Owner fails to exercise reasonable care to protect the children or eliminate the danger

Question 69

[Kentucky River Med Center v. McIntosh]”EMT trips on slab; breaks hip”

Answer 69

Open and obvious doctrine (Restatement): Landowner is not liable for harm to invitees caused by a known and obvious danger unless the possessor should anticipate harm regardless of the invitee’s awareness. In which case, there may be a duty to fix or warn.

Question 70

[Scurti v. New York City] "Kid electrocuted breaking into train yard"

Answer 70

New York abolished the duty distinction of Entrant-Status, but retained Entrant-Status as factors of normal negligence Trespassers may not be foreseeable, and therefore there is no duty.

Question 71

[Rowland v. Christian] “Faucet explodes in visitor’s hand”

Answer 71

Abolishing CL Entrant-Status Categories: RC owed to all present on land CA Statute: Exception for trespassers there to commit felonies

Question 72

[Pagelsdorf v. Safeco Insurance Co.] “Tenant’s visitor falls off balcony due to rotten wood”

Answer 72

Court: Lessors have a duty to exercise RC in maintaining the premises. RSTMT: Lessors have duty of RC for (a) The portions of the property the lessor retains control over (b) Conduct of lessor creating risks (c) disclosure of dangerous conditions

Question 73

[Crumpton v. Humana Inc.]”Woman injured while hospital bed lowered, case filed late”

Answer 73

SOL TR: SOL commences running from the date of injury or alleged malpractice

Question 74

[Schmitz v. NCAA]”D1 Football player discovers brain damage decades later”

Answer 74

Discovery Rule: SOL begins to run when P 1.Knows; or 2.Should have known (RPP)

Question 75

[Walski v. Tiesenga]”Surgeon paralyzes vocal cords”

Answer 75

1. Generally SOC in medical malpractice must be established by Expert Testimony 2. SOC is what the average qualified physician would do in a particular situation 3. Where there is a division among doctors, doctor may choose either

Question 76

[Vergara v. Doan]”Wilhelm II Delivery”

Answer 76

(Rejected) Strict Locality: SOC is what other doctors in the same community would do (Accepted) Modified Locality: SOC is what doctors in similar communities would do

Question 77

[Hirpa v. IHC Hospitals]”Good samaritan doctor intervenes but fails to save mother”

Answer 77

Good Samaritan Statutes: Good samaritan statutes may sometimes include medical care.

Question 78

[Harnish v. Children’s Hospital]”Doctor doesn’t tell patient tongue could be paralyzed”

Answer 78

Materiality Standard: Physician owes duty to disclose all material medical info that influences whether the patient would choose the treatment; the risk must actually materialize.

Question 79

[Wooley v. Henderson]”Physician damages spine without disclosing risk”

Answer 79

Customary Rule: Physician owes duty of a “reasonable practitioner” to disclose risk; what other doctors would disclose

Question 80

[Wlosinski v. Cohn] “Good success rate is actually 28.5%”

Answer 80

Failure Rate? - No

Question 81

[Arato v. Avedon]“Don’t worry about getting a will for your certain death”

Answer 81

Life-Expectancy? - No

Question 82

[Truman v. Thomas]”Dies of cervical cancer doctor never said why to get a pap smear”

Answer 82

Risk of Non-Treatment? - Yes

Question 83

[Brown v. Dibbell]”Comparative fault in double mastectomy informed consent”

Answer 83

PLNTF may have comparative fault in an informed consent case Specifically for failing to give truthful and complete family history when it is material

Question 84

[Ybarra v. Spangard]”P wakes from surgery with injured shoulder”

Answer 84

RIL Medical Malpractice Test of Control: Doctor is “captain of the ship” Everyone involved in the surgery may be liable

Question 85

[States v. Lourdes Hospital] “Awakening from surgery with bent arm”

Answer 85

RIL is available in simple medical malpractice cases that require no expert. If an expert is needed, they can “bridge the gap” and testify concluding RIL

Question 86

[Pensacola Motor v. Daphne Automotive]”Taliban Toyota”

Answer 86

Slander per se: (Damages Presumed) 1. Publication accuses PLNTF (a) Serious Crime (b) Loathsome Disease (c) Traits Incompatible to Profession (d) Serious Sexual Misconduct

Question 87

[Stanton v. Metro Corp]”Teen sex in the suburbs”

Answer 87

CL Traditional Defamation Elements 1. Publication of 2. Defamatory Material 3. Concerning PLNTF (a) DEF has burden of proving truth as an affirmative defense (b)Presumed to be malicious (c) Damages presumed (d) Nowadays some sort of fault, falsity, or damages need to be proven.

Question 88

[NYT v. Sullivan]”MLK Police Slander”

Answer 88

Public Figure/Concern P must prove statement is false Actual Malice Fault Standard (K/R)

Question 89

[Gertz v. Welch Inc.]”Prosecuting Lawyer Accused of Being a Communist”

Answer 89

Government Employees Are Not Inherently Public Figures Private Figure, Public Concern Fault Standard depends on state law, somewhere between recklessness and SL Must prove fault and actual damages

Question 90

[Dun & Bradstreet Inc. v. Greenmoss Inc.]””

Answer 90

Prive Figure/Concern Presumed and Punitive Damages Automatic

Question 91

[In Re Facebook]”Facebook tracks users offsite without telling them”

Answer 91

Intrusion on Privacy Liability is established if the intrusion is highly offensive to a reasonable person

Question 92

[Riviello v. Waldron]”Chef flips knife, blinds customer”

Answer 92

Employer Liability Test: Whether the act was done within the “scope of their employment” no matter how irregular or with what disregard for instructions

Question 93

[Cameron v. Osler]”Employee SOL applies, Employer is still liable”

Answer 93

Employer is still culpable even when the employee has no liability “Employee fault v. Employee Liability”

Question 94

[Fruit v. Schreiner]”Salesman sleeps through sales dinner and hits P driving home”

Answer 94

Respondeat Superior: The desire to include in the costs of operation inevitable losses to third persons incident to carrying on an enterprise. Employer has liability insurance, and this encourages safe practice R2 of Agency 228 Purpose/Motive Test: SOE is true when Employee’s action is motivated in part by a purpose to serve the employer

Question 95

[Hinman v. Westinghouse Electric Co.]”Construction worker hits cop while driving home from jobsite”

Answer 95

Going and Coming Rule: Employees going and coming from work are outside SOE except: 1. Generally: When there is a substantial benefit to the employer and/or if the employee is paid as part of the workday. 2. Specifically (a) Where the employee is “on call” (b) Personal vehicle is required for work related tasks (c) Employee instructed to carry out some job related errand (d) Where the commute serves a dual purpose

Question 96

[Edgewater Motels v. Gatzke]”Slams liquor, smokes stogies, burns down hotel”

Answer 96

Frolic: No SOE Place and Purpose not associated with employment Re-entry when PLNTF has formulated intent to return to work and reasonable connection with the work Detour: SOE Slight deviation; foreseeable by employee

Question 97

[Montague v. AMN Healthcare]”Nurse poisons nurse”

Answer 97

Intentional Conduct of an Employee is within SOE when: 1. Required or incidental to duties; or 2. Reasonably Foreseeable

Question 98

[Mavrikidis v. Petullo]”Contractor Truck Spill”

Answer 98

Employers are generally not liable for the conduct of independent contractors except when: 1. Employer retains control; or 2. Incompetent contractor; or 3. Inherently dangerous activity 4. Non-delegable duty [Pusey]

Question 99

[Pusey v. Bator]”Security shoots trespasser”

Answer 99

Non-delegable duty doctrine: Employees are liable for inherently dangerous activities they require of independent contractors

Question 100

[O’Banner v. McDonald’s]”McD slip-and-fall”

Answer 100

Apparent Agency: Franchiser can be liable for the negligent torts of franchisee if the injured party can show they actually relied on this apparent agency in being injured.

Question 101

[Dyer v. Maine Drilling & Blasting]”Rock Blasting Damages House”

Answer 101

2RSTMT 6 Factor Test for Abnormally Dangerous Activities: Overly Complicated, cite 3RSTMT instead. 3R 20: (1) The activity creates “a foreseeable and highly significant risk of physical harm even when reasonable care is exercised; and (2) the activity is not one of common usage.”

Question 102

[Ryland v. Fletcher]”Pond collapses, floods mineshaft”

Answer 102

“Sic uti suo ut non laedat alienum” The person who keeps on his land anything likely to do mischief if it escapes, must keep it in at his own peril (Strict Liability for Nuisances)

Question 103

[Lee v. Crookton Coca Cola]”Exploding Coke Bottle”

Answer 103

Product Liability may be imposed when a product is : 1. Defective: unreasonably dangerous (a) Consumer expectations test: dangerous beyond the expectations of an ordinary consumer 2. Defect existed when the product left DEF’s control 3. Proximate Cause between the defect and harm RIL for strict liability may be used, but PLNTF must still rule out improper handling

Question 104

[Clark v. Mexicali Rose]”No Duty for a Perfect Enchilada”

Answer 104

Natural Test: If the injury producing substance is natural to the preparation of the food served, it is reasonably expected by its very nature

Question 105

[Leichtamer v. American Motors]”Jeep cage collapses in roll-over”

Answer 105

Crashworthiness Doctrine: A product is defective in design if it fails to perform… 1. As safely as an ordinary consumer would expect 2. When used in an intended or reasonably foreseeable manner

Question 106

[Knitz v. Minster]”P loses 2 fingers in industrial press”

Answer 106

A product design is defective if… 1. Crashworthiness Doctrine 2. If the benefits of the challenged design do not outweigh the risk inherent in such design (compare risk-utility)

Question 107

[Barker v. Lull Engineering]”Industrial Loader Without Canopy or Outrigger Tips”

Answer 107

CA Rule for Design Defect: Risk-Utility analysis + Burden shifted to DEF

Question 108

[Genie Industries v. Matak]”Lift with tip-over sign moved while fully extended, kills person”

Answer 108

Alternative Design (Proving Design Defect): P must show alternative design that 1. Would have been safer and prevented/significantly reduced risk 2. Would not have been less safe in other circumstances or to other users 3. Would not substantially impair utility 4. Economic and technological feasibility

Question 109

[McCarthy v. Olin]”Bullet manufacturer sued for bullets being too effective after mass shooting”

Answer 109

The bullets performed specifically as designed and advertised, even if that was to kill people

Question 110

[Liriano v. Hobart]”Hand Caught in Meat Grinder; Boss Removed Safety; No Warning Label”

Answer 110

Failure to provide appropriate information about a product may make an otherwise safe product unreasonably dangerous Function of Product Warnings 1. To Warn 2. To make aware of safer method Burden shifted to P to show they would have heeded warning