Essay Flashcards

Question

Private Nuisance Fourth…strict liability

Answer 1

Fourth, D is strictly liable because he engaged in an abnormally dangerous activity (ADA). An ADA is one that creates a substantial and foreseeable risk of harm even if D is not negligent, and is not one of common usage in the community. Here, D was conducting an abnormally dangerous activity because [facts]. This activity caused the inteference because [facts].

Answer 2

Consent, contributory or comparative negligence, private and public necessity

Answer 3

D may argue that P knowingly and voluntarily subjected himself to the risk because [facts] mean he "came to the nuisance'. However, coming to the nuisance is not a complete defense and is only one factor to be considered in determining if the nuisance is substantial. Here, this argument will likely fail because [facts].

Answer 4

P may be entitled to compensatory damages and/or an injunction.

Answer 5

A public nuisance is an unreasonable interference with a right common to the general public.

Answer 6

To succeed in a public nuisance claim as a private plaintiff, P must prove with a preponderance of evidence that: 1) D interfered with a right common to the general public, 2) the interference was substantial, 3) the interference was unreasonable, 4) D either intentionally or negligently caused the harm, or it was caused by D conducting an abnormally dangerous activity, and 5) P suffered a different harm than the public at large.

Answer 7

First, D must interfere with a right common to the general public. Rights common to the general public include rights to public health, safety, peace, comfort or enjoyment. (He says people come everyday) Here, D interfered with a right common to the general public because [facts] interfered with the public right to [insert].

Answer 8

Second, the interference must be substantial. Interference is substantial when it is more than merely offensive, inconvenient or annoying to an average member of the community.

Answer 9

Third, the interference must be unreasonable. An interference is unreasonable when 1) the gravity of the harm outweighs the utility of D's conduct, or 2) P's harm is greater than what P should have to endure without compensation.

Answer 10

Fourth, because P is a non-governmental plaintiff, he must suffer a different harm than the public at large. Here, P suffered a different harm than the public at large because [facts].

Answer 11

Fifth, D intentionally caused the harm intentionally if he acted with the purpose of causing the interference or acted knowing with substantial certainty it would occur. Here, D intentionally caused the interference because [facts].

Answer 12

Fifth, D negligently caused the harm if he breached the standard of care owed to P. Here, D negligently caused the interference because a reasonable person would do [analysis].

Answer 13

Fifth, D must intentionally or negligently cause the interference, or though conduction of an abnormally dangerous activity. An abnormally dangerous activity is one that creates a foreseeable risk of harm even if D is not negligent and is not one of common usage in the community. Here, D was conducting an abnormally dangerous activity because [facts]. This activity caused the inteference because [facts].

Answer 14

Consent, coming to the nuisance, statutory authority, contributive negligence, private and public necessity

Answer 15

The issue is whether D is liable to P because P's wild animal caused harm.

Answer 16

Strict liability due to harm caused by a wild animal is liability without fault.

Answer 17

To succeed, P must prove with a preponderance of evidence that 1) D owed her a duty to do no harm because of his possession of the animal, 2) D breached that duty, 3) P was harmed by the breach; 4) D's breach was the actual cause of the harm, and 5) the proximate cause of the harm.

Answer 18

First, D must owe P a duty to do no harm because he possessed a wild animal. A wild animal is a category of animal not generally domesticated and that is likely to cause personal injury if not restrained. Here, P's [animal] is a wild animal because [animal] is not generally domesticated. [Animal] is also likely to cause personal injury if not restrained because [facts].

Answer 19

The danger is based on the species, not the particular animal. The fact that D's [animal] was tame, as indicated by [facts], does not make his [animal] a domesticated animal for purposes of tort law.

Answer 20

Second, D breached his duty to do no harm if the animal caused harm. Here, D breached his duty because [facts].

Answer 21

The fact that D has a license or permit does not relieve him of liability.

Answer 22

Third, P must suffer recoverable harm. For strict liability torts, recoverable harm includes property damage or bodily injury. Here, P suffered [property damage][bodily injury] because [facts].

Answer 23

P's pure economic loss of [facts] is not harm for purposes of strict liability.

Answer 24

Fourth, D'a animal is the actual cause of P's harm if the harm would not have occurred but for D's wild animal. Here, [animal] is the but for cause of P's harm because [facts].

Answer 25

Fourth, D must be the actual cause of P's harm. D is the actual cause of P's harm if the wild animal started a chain of events that would not have occurred but for the wild animal's conduct. Here, but for [animal] [x, y and z] would not have occurred and P would not ahve been harmed.

Answer 26

Fourth, D must be the actual cause of P's harm. If there were multiple actors or actions and the conduct of one party alone would not have caused the harm and the harm is indivisible, both parties will be jointly liable unless they can prove what portion of the harm was caused by each. Here, D and [actor] caused the harm but the harm is indivisible because [facts]. Thus, both will be considered the actual cause of P's harm.

Answer 27

Fourth, D must be the actual cause of P's harm. If there were two or more actors and any one actor's conduct was sufficient to cause the harm, both actors are liable for P's harm. Here, D's wild animal and x both contributed to P's harm because [facts]. [Facts] indicate either would have been sufficient to cause the entire injury. Those both will be considered the actual cause of P's harm.

Answer 28

Fourth, D must be the actual cause of P's harm. If two or more actors contributed to P's harm but it is impossible to tell which caused the injury, each will be liable for the full extent of the harm. Here, because [facts] indicate both D and X contributed to the harm and it is impossible to tell who caused the injury, both will be considered the actual cause of the harm.

Answer 29

Fourth, D's wild animal must be the proximate cause of P's harm. The wild animal is the proximate cause of P's harm if the harm results from a dangerous propensity that is characteristic of [animals] or of which D knows or has reason to know. Here, D's [animal] is the proximate cause of P's [harm] is within the scope of harm that results from dangerous propensities of [animal]. [Animals] are dangerous because [facts].

Answer 30

A wild animal's propensity to cause fear in humans is within the scope of the risk that makes possessing a wild animal dangerous. Here, P's [harm] was caused because [animal] created fear. Thus, D's wild animal is the proximate cause of P's harm.

Answer 31

However, D's possession of [animal] is not the proximate cause of P's harm if it is too remote in time and space. Here, D's possession is not the proximate cause because [facts] mean the harm was too remote in time or space.

Answer 32

D's animal is not the proximate cause of P's harm if there is a superseding intervening cause. Negligence of third parties, forces of nature, and conduct of another animal are not superseding causes for strict liability torts.

Answer 33

Foreseeability of the extent of harm is not required. D is the proximate cause of all harm sustained by P even though [facts] made her harm greater than that of an ordinary person.

Answer 34

However, D's wild animal is not the proximate cause of harm P suffered if she made contact with D's wild animal for the purpose of securing some benefit from the contact. Here, D's wild animal is not the proximate cause of P's harm because [facts].

Answer 35

However, D's wild animal is not the proximate cause of P's harm if D possessed the wild animnal in pursuance of an obligation imposed by law. Here, D's wild animal is not the proximate cause of P's harm because [facts].

Answer 36

Common carrier shipping animal, public official assuming control of wild animal in the wild

Answer 37

Duty to mitigate, contributory negligence, assumption of the risk, comparative responsibility

Answer 38

D may argue that he is not responsible for all or some of P's harm because P failed to fulfill her duty to mitigate the harm. Here, P had a duty to mitigate harm that could be avoided. P did not do [facts], so D will not be liable for [x].

Answer 39

If the jurisdiction recognizes contributory negligence, D may argue that because P did [facts] she was contributorily negligent which absolves his liability. However, this argument will fail because contributory negligence is not a defense to strict liability.

Answer 40

However, in those jurisdictions, D may be able to assert a defense of assumption of the risk if he can show P knowingly and voluntarily came into contact with the wild animal. Here, [facts] indicate P knowingly and voluntarily assumed the risk because [facts].

Answer 41

If the jurisdiction recognizes comparative responsibility for strict liability torts, D will argue that his liability should be reduced because P was also negligent. He will argue P was negligent because [facts]. This argument will likely succeed because [facts].

Answer 42

In a pure comparative negligence jurisdiction, P's recovery will be reduced by the percentage of the harm attributed to her. In a modified jurisdiction, P's harm will be reduced by the percentage of the harm attributed to her. However, if her percentage exceeds 50%, she will not recover.

Answer 43

The issue is whether D is liable to P because P's Domestic animal caused harm.

Answer 44

Strict liability due to an abnormally dangerous domestic animal is liability without fault.

Answer 45

To succeed, P must prove with a preponderance of evidence that 1) D owed her a duty to do no harm because of his possession of the animal, 2) D breached that duty, 3) P was harmed by the breach; 4) D's breach was the actual cause of the harm, and 5) the proximate cause of the harm.

Answer 46

First, D owed P a duty to do no harm if he possessed an abnormally dangerous domestic animal. A domestic animal is a category of animals generally devoted to the service of mankind, including as for livestock and companionship. Here, D's animal is a domestic animal because [facts].

Answer 47

A domestic animal is abnormally dangerous if he has dangerous propensities of which D knows or should have known. Here, D's animal is abnormally dangerous because [facts].

Answer 48

Second, D breached his duty to P if the animal caused harm. Here, D breached his duty because [facts].

Answer 49

Third, P must suffer actual harm - property damage or bodily injury. actual harm. Here, P suffered [property damage][bodily injury] because [facts].

Answer 50

P's pure economic loss of [facts] is not harm for purposes of strict liability.

Answer 51

Fourth, D must be the actual cause of P's harm. D is the actual cause of P's harm if the harm would not have occurred but for D's abnormally dangerous domestic animal.

Answer 52

Fourth, D must be the actual cause of P's harm. D is the actual cause of P's harm if the abnormally dangerous domestic animal started a chain of events that would not have occurred but for the Domestic animal's conduct. Here, but for [animal] [x, y and z] would not have occurred and P would not ahve been harmed.

Answer 53

Fourth, D must be the actual cause of P's harm. If there were multiple actors or actions and the conduct of one party alone would not have caused the harm and the harm is indivisible, both parties will be jointly liable unless they can prove what portion of the harm was caused by each. Here, D and [actor] caused the harm but the harm is indivisible because [facts]. Thus, both will be considered the actual cause of P's harm.

Answer 54

Fourth, D must be the actual cause of P's harm. If there were two or more actors and any one actor's conduct was sufficient to cause the harm, both actors are liable for P's harm. Here, D's Domestic animal and x both contributed to P's harm because [facts]. [Facts] indicate either would have been sufficient to cause the entire injury. Those both will be considered the actual cause of P's harm.

Answer 55

Fourth, D must be the actual cause of P's harm. If two or more actors contributed to P's harm but it is impossible to tell which caused the injury, each will be liable for the full extent of the harm. Here, because [facts] indicate both D and X contributed to the harm and it is impossible to tell who caused the injury, both will be considered the actual cause of the harm.

Answer 56

Fourth, D's Domestic animal is the proximate cause of P's harm if the harm is within the scope of the risk created by the dangerous propensity of the animal. Here, D's [animal] is the proximate cause of [harm] because it is within the scope the risk of harm that results from dangerous propensities of [animal]. [Animal] is dangerous because [facts].

Answer 57

An abnormally dangerous domestic animal's propensity to cause fear in humans is within the scope of the risk that makes possessing a Domestic animal dangerous. Here, P's [harm] was caused because [animal] created fear. Thus, D's Domestic animal is the proximate cause of P's harm.

Answer 58

However, D's possession of [animal] is not the proximate cause of P's harm if it is too remote in time and space. Here, D's possession is not the proximate cause because [facts] mean the harm was too remote in time or space.

Answer 59

D is the proximate cause of P's harm even though the danger created by the [animal] resulted in harm he had no reason to expect due to negligence of a third-party , force of nature or conduct of another animal. Here, D's [animal] is the proximate cause of P's harm because [facts].

Answer 60

Foreseeability of the extent of harm is not required. D is the proximate cause of all harm sustained by P even though [facts] made her harm greater than that of an ordinary person.

Answer 61

However, D's Domestic animal is not the proximate cause of harm P suffered if she made contact with D's Domestic animal for the purpose of securing some benefit from the contact. Here, D's Domestic animal is not the proximate cause of P's harm because [facts].

Answer 62

However, D's Domestic animal is not the proximate cause of P's harm if D possessed the Domestic animnal in pursuance of an obligation imposed by law. Here, D's Domestic animal is not the proximate cause of P's harm because [facts].

Answer 63

Common carrier shipping animal, public official assuming control of Domestic animal in the Domestic

Answer 64

Duty to mitigate, contributory negligence, assumption of the risk, comparative responsibility

Answer 65

D may argue that he is not responsible for all or some of P's harm because P failed to fulfill her duty to mitigate the harm. Here, P had a duty to mitigate harm that could be avoided. P did not do [facts], so D will not be liable for [x].

Answer 66

If the jurisdiction recognizes contributory negligence, D may argue that because P did [facts] her negligence contributed to the harm, which absolves his liability. However, this argument will fail because contributory negligence is not a defense to strict liability.

Answer 67

However, in those jurisdictions, D may be able to assert a defense of assumption of the risk if he can show P knowingly and voluntarily came into contact with the Domestic animal. Here, [facts] indicate P knowingly and voluntarily assumed the risk because [facts].

Answer 68

If the jurisdiction recognizes comparative responsibility for strict liability torts, D will argue that his liability should be reduced because P was also negligent. He will argue P was negligent because [facts]. This argument will likely succeed because [facts].

Answer 69

In a pure comparative negligence jurisdiction, P's recovery will be reduced by the percentage of the harm attributed to her. In a modified jurisdiction, P's harm will be reduced by the percentage of the harm attributed to her. However, if her percentage exceeds 50%, she will not recover.

Answer 70

The issue is whether D is strictly liable to P for harm caused by [D's activity].

Answer 71

One who engages in an abnormally dangerous activity is strictly liable for any harm proximately caused by the activity even if D exercises reasonable care.

Answer 72

To succeed, P must prove with a preponderance of evidence that 1) D owed her a duty to do no harm because D conducts an abnormally dangerous activity, 2) D breached that duty, 3) P was harmed by the breach; 4) D's breach was the actual cause of the harm, and 5) the proximate cause of the harm.

Answer 73

First, D owes P a duty to do no harm if he was engaged in an abnormally dangerous activity. An abnormally dangerous activity is one that a) creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors, and b) the activity is not one of common usage.

Answer 74

Here [activity] creates a foreseeable and highly significant risk of physical harm because [facts]. This risk exists even if reasonable care is exercised by all actors because [facts].

Answer 75

An activity is a matter of common usual if it is customarily carried on by the great mass of mankind or by many people in the community. Here, [activity] is not one of common usage because [facts].

Answer 76

Second, D breached his duty to do no harm if the abnormally dangerous acitivity caused harm. Here, D breached his duty because [facts].

Answer 77

Third, P must suffer recoverable harm. For strict liability torts, recoverable harm includes property damage or bodily injury. Here, P suffered [property damage][bodily injury] because [facts].

Answer 78

P's pure economic loss of [facts] is not harm for purposes of strict liability.

Answer 79

Fourth, D must be the actual cause of P's harm. D is the actual cause of P's harm if the harm would not have occurred but for the abnormally dangerous activity. Here, the ADA is the actual cause of P's harm because the harm would not have occurred but for the ADA. If D had not be doing [activity], [x] would not have occurred.

Answer 80

Fourth, D must be the actual cause of P's harm. D is the actual cause of P's harm if the ADA started a chain of events that would not have occurred but for the ADA. Here, but for the ADA, [x, y and z] would not have occurred and P would not have been harmed.

Answer 81

Fourth, D must be the actual cause of P's harm. If there were multiple actors or actions and the conduct of one party alone would not have caused the harm and the harm is indivisible, both parties will be jointly liable unless they can prove what portion of the harm was caused by each. Here, D and [actor] caused the harm but the harm is indivisible because [facts]. Thus, both will be considered the actual cause of P's harm.

Answer 82

Fourth, D must be the actual cause of P's harm. If there were two or more actors and any one actor's conduct was sufficient to cause the harm, both actors are liable for P's harm. Here, D's ADA and x both contributed to P's harm because [facts]. [Facts] indicate either would have been sufficient to cause the entire injury. Those both will be considered the actual cause of P's harm.

Answer 83

Fourth, D must be the actual cause of P's harm. If two or more actors contributed to P's harm but it is impossible to tell which caused the injury, each will be liable for the full extent of the harm. Here, because [facts] indicate both D and X contributed to the harm and it is impossible to tell who caused the injury, both will be considered the actual cause of the harm.

Answer 84

Fourth, D's ADA is the proximate cause of P's harm if the harm is foreseeable and within the scope of the risk created by the dangerous propensities of [ADA]. Here, D's ADA is the proximate cause of P's [harm] is within the scope of harm that results from dangerous propensities of [activity]. [Activity] is dangerous because [facts].

Answer 85

However, D's ADA is not the proximate cause of P's harm if it is too remote in time and space. Here, D's possession is not the proximate cause because [facts] mean the harm was too remote in time or space.

Answer 86

D is the proximate cause of P's harm even though the danger created by the ADA resulted in harm he had no reason to expect due to negligence of a third-party , force of nature or conduct of another animal. Here, D's ADA is the proximate cause of P's harm because [facts].

Answer 87

Foreseeability of the extent of harm is not required. D is the proximate cause of all harm sustained by P even though [facts] made her harm greater than that of an ordinary person.

Answer 88

However, D's ADA is not the proximate cause of harm P suffered if she made contact with the ADA for the purpose of securing some benefit from the contact. Here, the ADA is not the proximate cause of P's harm because [facts].

Answer 89

However, D's ADA is not the proximate cause of P's harm if D pursues the ADA due to an obligation imposed by law. Here, D's ADA is not the proximate cause of P's harm because [facts].

Answer 90

Common carrier shipping animal, public official assuming control of Domestic animal in the Domestic

Answer 91

Duty to mitigate, contributory negligence, assumption of the risk, comparative responsibility

Answer 92

D may argue that he is not responsible for all or some of P's harm because P failed to fulfill her duty to mitigate the harm. Here, P had a duty to mitigate harm that could be avoided. P did not do [facts], so D will not be liable for [x].

Answer 93

If the jurisdiction recognizes contributory negligence, D may argue that because P did [facts] she was contributorily negligent which absolves his liability. However, this argument will fail because contributory negligence is not a defense to strict liability.

Answer 94

However, in those jurisdictions, D may be able to assert a defense of assumption of the risk if he can show P knowingly and voluntarily came into contact with the Domestic animal. Here, [facts] indicate P knowingly and voluntarily assumed the risk because [facts].

Answer 95

If the jurisdiction recognizes comparative responsibility for strict liability torts, D will argue that his liability should be reduced because P was also negligent. He will argue P was negligent because [facts]. This argument will likely succeed because [facts].

Answer 96

In a pure comparative negligence jurisdiction, P's recovery will be reduced by the percentage of the harm attributed to her. In a modified jurisdiction, P's harm will be reduced by the percentage of the harm attributed to her. However, if her percentage exceeds 50%, she will not recover.

Answer 97

The issue is whether D is strictly liable to P because [product] caused P harm

Answer 98

Commercial sellers are strictly liable for harm caused by products they manufacture or sell even if they exercise all reasonable care.

Answer 99

To succeed, P must prove with a preponderance of evidence that 1) D was a commercial seller who owed her a duty to do no harm, 2) D breached that duty, 3) P was harmed by the breach; 4) D's breach was the actual cause of the harm, and 5) the proximate cause of the harm.

Answer 100

First, D owed P a duty to do no harm he is a commercial seller of the product that causes her harm. A commercial seller is anyone in the line of distribution of the product, and who regularly sold the product that caused P's harm. Here, D was a commercial seller of [product] because [facts].

Answer 101

All commercial sellers in the line of distribution are liable. No privity is required. Here, D owes a duty to P even though he [facts].

Answer 102

Casual sellers and sellers of used goods are not commercial sellers. Here, D is not liable because [facts] means she is a casual seller.

Answer 103

Second, D breached his duty to do no harm if a mfg defect caused the harm. A mfg defect exists when: 1) the product departed from its intended design, 2) even though all possible care was exercised, and 3) the defect made the product unreasonably dangerous. Here, [product] had a mfg defect because [facts]. The defect made the product unreasonably dangerous because [facts].

Answer 104

The product must have been in substantially the same conduct when it reached P as when it left D's control. Here, the product was in substantially the same condition because [facts]. Thus, D breached his duty of care.

Answer 105

Circumstantial evidence may allow a presumption of defect (similar to res ipsa loquitor in negligence). A) P's harm must be of a kind that normally occurs as a result of a product defect, and B) it was not solely the result of causes other than the a defect existing at the time of sale or distribution. Here, P can argue that [harm] does not ordinarily occur absent a product defect because [facts]. Further, there are no facts indicating that the harm could have been the result of a cause other than the product defect at the time of sale or distribution. [Facts] indicate that nothing P or another party did caused the harm.

Answer 106

Violation of a statue may be proof of breach, but adherence to a statute does not prove there was no breach. Here, P can argue that D's violation of the statute is prove of breach because [facts].

Answer 107

Third, P suffers harm if she has damages to her person or property. Here, P suffered [property damage][bodily injury] because [facts].

Answer 108

P's pure economic loss of [facts] is not harm for purposes of strict liability.

Answer 109

Fourth, the mfg defect must be the actual cause of P's harm. A mfg defect is the actual cause of P's harm if the harm would not have occurred but for the defect. Here, the defect is the actual cause of P's harm because the harm would not have occurred if [facts]. Thus, the defect is the actual cause of P's harm.

Answer 110

Fourth, the mfg defect must be the actual cause of P's harm. The mfg defect is the actual cause of P's harm if the defect started a chain of events that would not have occurred but for the defect. Here, but for the defect, [x, y and z] would not have occurred and P would not have been harmed.

Answer 111

Fourth, the mfg defect must be the actual cause of P's harm. If there were multiple actors or actions and the conduct of one party alone would not have caused the harm and the harm is indivisible, both parties will be jointly liable unless they can prove what portion of the harm was caused by each. Here, the mfg defect and [actor] caused the harm but the harm is indivisible because [facts]. Thus, both will be considered the actual cause of P's harm.

Answer 112

Fourth, the mfg defect must be the actual cause of P's harm. If there were two or more actors and any one actor's conduct was sufficient to cause the harm, both actors are liable for P's harm. Here, the mfg defect and x both contributed to P's harm because [facts]. [Facts] indicate either would have been sufficient to cause the entire injury. Those both will be considered the actual cause of P's harm.

Answer 113

Fourth, the mfg defect must be the actual cause of P's harm. If two or more actors contributed to P's harm but it is impossible to tell which caused the injury, each will be liable for the full extent of the harm. Here, because [facts] indicate both D and X contributed to the harm and it is impossible to tell who caused the injury, both will be considered the actual cause of the harm.

Answer 114

Fourth, the mfg is the proximate cause of P's harm if the harm is foreseeable and within the scope of the risk that made the product unreasonably dangerous.

Answer 115

However, the mfg defect is not the proximate cause of P's harm if it is too remote in time and space. Here, D's possession is not the proximate cause because [facts] mean the harm was too remote in time or space.

Answer 116

The mfg defect is not the proximate cause of harm if it results from P's unforeseeable use of the product. Here, D's use of the product to do [facts] was unforeseeable because [facts].

Answer 117

The mfg defect is the proximate cause of P's harm even though the danger created by mfg defect resulted in harm he had no reason to expect due to negligence of a third-party , or force of nature. Here, the mfg defect is the proximate cause of P's harm because [facts].

Answer 118

Foreseeability of the extent of harm is not required. The mfg defect the proximate cause of all harm sustained by P even though [facts] made her harm greater than that of an ordinary person.

Answer 119

Duty to mitigate, contributory negligence, assumption of the risk, comparative responsibility

Answer 120

D may argue that he is not responsible for all or some of P's harm because P failed to fulfill her duty to mitigate the harm. Here, P had a duty to mitigate harm that could be avoided. P did not do [facts], so D will not be liable for [x].

Answer 121

If the jurisdiction recognizes contributory negligence, D may argue that because P did [facts] she was contributorily negligent which absolves his liability. However, this argument will fail because contributory negligence is not a defense to strict liability.

Answer 122

However, in those jurisdictions, D may be able to assert a defense of assumption of the risk if he can show P knowingly and voluntarily came into contact with the Domestic animal. Here, [facts] indicate P knowingly and voluntarily assumed the risk because [facts].

Answer 123

If the jurisdiction recognizes comparative responsibility for strict liability torts, D will argue that his liability should be reduced because P was also negligent. He will argue P was negligent because [facts]. This argument will likely succeed because [facts].

Answer 124

In a pure comparative negligence jurisdiction, P's recovery will be reduced by the percentage of the harm attributed to her. In a modified jurisdiction, P's harm will be reduced by the percentage of the harm attributed to her. However, if her percentage exceeds 50%, she will not recover.

Answer 125

The issue is whether D is strictly liable to P because [product] caused P harm

Answer 126

Commercial sellers are strictly liable for harm caused by products they manufacture or sell even if they exercise all reasonable care.

Answer 127

To succeed, P must prove with a preponderance of evidence that 1) D was a commercial seller who owed her a duty to do no harm, 2) D breached that duty, 3) P was harmed by the breach; 4) D's breach was the actual cause of the harm, and 5) the proximate cause of the harm.

Answer 128

First, D owes P a duty to do no harm if he is the commercial seller of the product that caused P's harm. A commercial seller is anyone in the line of distribution of the product who is in the business of regularly selling the product that caused P's harm. Here, D was a commercial seller of [product] because [facts].

Answer 129

All commercial sellers in the line of distribution are liable. No privity is required. Here, D owes a duty to P even though he [facts].

Answer 130

Casual sellers and sellers of used goods are not commercial sellers. Here, D is not liable because [facts] means she is a casual seller.

Answer 131

Second, D breached his duty to P if the product caused harm due to a design defect. Depending upon the jurisdiction, either the risk/utility test or the consumer expectation test will be used to determine whether a product has a design defect.

Answer 132

Under the risk utility test, a design defect exists if the foreseeable risks of harm posed by the product could have been avoided by adopting a reasonable alternative design and the omission of the RAD renders the product unreasonably dangerous.

Answer 133

D breached his duty if the burden of taking adequate precautions did not outweigh the probability of harm mulitipled by the severity of the harm because there existed a RAD. Here, D will argue that the product could have been designed to [RAD description] and failure to use the RAD made the product unreasonably dangerous.

Answer 134

For the alternative design to be reasonable it must 1) make the product safer for all reasonably foreseeable uses, 2) not substantionally impair the product's usefulness for its intended purposes, and at the time of sale or distribution it was 3) technologically feasible, and 4) economically feasible. Here, P's proposed alternative design.....

Answer 135

If the product has low or no social utility and high degree of danger, the product may be found to have a design defect even absent proof of a RAD. Here, [product] has low social utility because [facts]. It poses a high degree of danger because [facts]. Thus, a court could find that it has a design defect even though P has not put through a RAD.

Answer 136

Under the consumer expectations test, a design defect when it fails to perfom as safely as an ordinary consumer would expect.

Answer 137

An ordinary consumer would expect [product] to do [x] and be [y safe]. Thus, because the product had [dangers] which the ordinary consumer would not expect, the product has a design defect if this test is used.

Answer 138

D is not liable due to a design defect for unavoidably dangerous products. A product that cannot be made safe without changing its fundamental characteristics is unavoidably dangerous. Here, [product] is unavoidably dangerous because [facts]. However, P may still be liable if the product has a failure-to-warn defect which will be discussed infra.

Answer 139

D may argue there is no design defect because the dangers are obvious. Dangers that are obvious to any reasonable consumer generally are not found to cause a design defect. Here, [danger] would be obvious to the ordinary consumer because [facts].

Answer 140

D may argue there is no design defect because the dangers are obvious. Under this test the obviousness of a danger is not dispositive and is only one factor to consider. Here, a design defect will be found to exist if P can show that there was a RAD that would render the product safe.

Answer 141

D has no duty to design around unknown dangers at the time of manufacture or distribution of the product. Here, [danger] was unknown at the time of manufacture/distribution to P because [facts]. Thus, D had no duty to design around it so did not breach his duty to do no harm.

Answer 142

The product must have been in substantially the same condition when it reached P as when it left D's control. Here, the product was in substantially the same condition because [facts]. Thus, D breached his duty of care.

Answer 143

P may argue that D's redesign of the product after her purchase proves the product she purchased was unreasonably dangerous. However, most courts find this evidence is inadmissible because it discourages sellers from making safety improvements to products. Thus this argument will likely fail.

Answer 144

Proving the defect existed at time product left D's control can be difficult. However, courts are generally lenient and allow P's testimony as evidence P had not tampered with the product.

Answer 145

Third, P must suffer recoverable harm. For strict liability torts, recoverable harm is property damage or bodily injury. Here, P suffered [property damage][bodily injury] because [facts].

Answer 146

P's pure economic loss of [facts] is not harm for purposes of strict liability.

Answer 147

Fourth, the design defect must be the actual cause of P's harm. A design defect is the actual cause of P's harm if the harm would not have occurred but for the defect. Here, the defect is the actual cause of P's harm because the harm would not have occurred if [facts]. Thus, the defect is the actual cause of P's harm.

Answer 148

Fourth, the design defect must be the actual cause of P's harm. The design defect is the actual cause of P's harm if the defect started a chain of events that would not have occurred but for the defect. Here, but for the defect, [x, y and z] would not have occurred and P would not have been harmed.

Answer 149

Fourth, the design defect must be the actual cause of P's harm. If there were multiple actors or actions and the conduct of one party alone would not have caused the harm and the harm is indivisible, both parties will be jointly liable unless they can prove what portion of the harm was caused by each. Here, the design defect and [actor] caused the harm but the harm is indivisible because [facts]. Thus, both will be considered the actual cause of P's harm.

Answer 150

Fourth, the design defect must be the actual cause of P's harm. If there were two or more actors and any one actor's conduct was sufficient to cause the harm, both actors are liable for P's harm. Here, the design defect and x both contributed to P's harm because [facts]. [Facts] indicate either would have been sufficient to cause the entire injury. Those both will be considered the actual cause of P's harm.

Answer 151

Fourth, the design defect must be the actual cause of P's harm. If two or more actors contributed to P's harm but it is impossible to tell which caused the injury, each will be liable for the full extent of the harm. Here, because [facts] indicate both D and X contributed to the harm and it is impossible to tell who caused the injury, both will be considered the actual cause of the harm.

Answer 152

Fourth, the design defect is the proximate cause of P's harm if the harm results because of the unreasonably dangerous nature of the defect.

Answer 153

However, the design defect is not the proximate cause of P's harm if it is too remote in time and space. Here, D's possession is not the proximate cause because [facts] mean the harm was too remote in time or space.

Answer 154

The design defect is not the proximate cause of harm if it results from P's unforeseeable use of the product. Here, D's use of the product to do [facts] was unforeseeable because [facts].

Answer 155

The design defect is the proximate cause of P's harm even though the danger created by design defect resulted in harm he had no reason to expect due to negligence of a third-party , or force of nature. Here, the design defect is the proximate cause of P's harm because [facts].

Answer 156

Foreseeability of the extent of harm is not required. The design defect the proximate cause of all harm sustained by P even though [facts] made her harm greater than that of an ordinary person.

Answer 157

Duty to mitigate, contributory negligence, assumption of the risk, comparative responsibility, State-of-the Art, as safe as competitors

Answer 158

D will likely raise the State-of-the-Art defense, which provides that if D can show at the time the product was manufactured, the state of the art did not allow for the production of a safer product at an acceptable price, the product will be found nondefective. Here, [facts] indicate the state-of-the-industry did not allow for production of a safer alternative at a lower price because [facts]. Thus, D will likely be successful and will not be strictly liable for P's harm.

Answer 159

D will likely argue that the design is not defective because it is as safe as the same product manufactured by competitors. However, this defense will most likely fail because most jurisdictions do not recognize this defense. It is not a reasonable defense because the entire industry may have been lagging in installing safety devices.

Answer 160

D may argue that he is not responsible for all or some of P's harm because P failed to fulfill her duty to mitigate the harm. Here, P had a duty to mitigate harm that could be avoided. P did not do [facts], so D will not be liable for [x].

Answer 161

If the jurisdiction recognizes contributory negligence, D may argue that because P did [facts] she was contributorily negligent which absolves his liability. However, this argument will fail because contributory negligence is not a defense to strict liability.

Answer 162

However, in those jurisdictions, D may be able to assert a defense of assumption of the risk if he can show P knowingly and voluntarily came into contact with the Domestic animal. Here, [facts] indicate P knowingly and voluntarily assumed the risk because [facts].

Answer 163

If the jurisdiction recognizes comparative responsibility for strict liability torts, D will argue that his liability should be reduced because P was also negligent. He will argue P was negligent because [facts]. This argument will likely succeed because [facts].

Answer 164

In a pure comparative negligence jurisdiction, P's recovery will be reduced by the percentage of the harm attributed to her. In a modified jurisdiction, P's harm will be reduced by the percentage of the harm attributed to her. However, if her percentage exceeds 50%, she will not recover.

Answer 165

The issue is whether D is strictly liable to P because [product] caused P harm

Answer 166

Commercial sellers are strictly liable for harm caused by products they manufacture or sell even if they exercise all reasonable care.

Answer 167

To succeed, P must prove with a preponderance of evidence that 1) D was a commercial seller who owed her a duty to do no harm, 2) D breached that duty, 3) P was harmed by the breach; 4) D's breach was the actual cause of the harm, and 5) the proximate cause of the harm.

Answer 168

First, D owed P a duty to do no harm if he is a commercial seller. A commercial seller is is anyone in the line of distribution of a product who regularly sold the product that caused P's harm. Here, D was a commercial seller of [product] because [facts].

Answer 169

All commercial sellers in the line of distribution are liable. No privity is required. Here, D owes a duty to P even though he [facts].

Answer 170

Casual sellers and sellers of used goods are not commercial sellers. Here, D is not liable because [facts] means she is a casual seller.

Answer 171

Second, D breached his duty if the product caused harm due to failure-to-warn (FTW) defect. A FTW defect exists when the foreseeable risks of harm could have been avoided: 1) by the provision of reasonable instructions or warnings, and 2) omission of the instructions or warnings renders the product unreasonably dangerous.

Answer 172

Adequate warnings or instructions should: a) alert P to the existence and nature of the risks posed by the product, b) instruct P how to use it safely, and c) describe dangers that exist if P misuses the product in a reasonably foreseeable manner. Here, [product] had a FTW defect because [facts].

Answer 173

No breach exists unless the product is unreasonably dangerous absent the warning. Here, the product was not unreasonably dangerous absent a warning because [facts].

Answer 174

No breach occurs if D did not warn of obvious dangers. D may argue that the dangers of [product] are obvious and thus he should be not be strictly liable because he had no duty to warn. However this argument will likely fail because [facts].

Answer 175

D has no duty to FTW around unknown dangers at the time of manufacture or distribution of the product. Here, [danger] was unknown at the time of manufacture/distribution to P because [facts]. Thus, D had no duty to FTW around it so did not breach his duty to do no harm.

Answer 176

The warnings or instructions must have been in substantially the same conduct when it reached P as when it left D's control. Here, they were in substantially the same condition because [facts]. Thus, D breached his duty of care.

Answer 177

D had no duty to warn of dangers that were unknowable at the time of manufacture or distribution of the product. Here, D had no duty to warn of [danger] because [facts].

Answer 178

The FTW defect had to exist at the time the product left D's control. Here, the FTW defect did not exist at the time it left D's control because [facts].

Answer 179

Third, P must suffer recoverable harm. For strict liability torts, recoverable harm includes property damage or bodily injury. Here, P suffered [property damage][bodily injury] because [facts].

Answer 180

P's pure economic loss of [facts] is not harm for purposes of strict liability.

Answer 181

Fourth, the FTW defect is the actual cause of P's harm if the harm would not have occurred but for the defect. Here, the defect is the actual cause of P's harm because the harm would not have occurred if [facts]. Thus, the defect is the actual cause of P's harm.

Answer 182

Most court's allow an inference that P would have read and heeded the warning if it had been adequately included. This is a rebuttable presumption and actual causation will not be satisfied if D presents evidence that P would not have read the warning. Here, there is no evidence that P would not have read or heeded the warning if it had been included thus the FTW defect will be determined to be the actual cause of P's harm.

Answer 183

Fourth, the FTW defect must be the actual cause of P's harm. The FTW defect is the actual cause of P's harm if the defect started a chain of events that would not have occurred but for the defect. Here, but for the defect, [x, y and z] would not have occurred and P would not have been harmed.

Answer 184

Fourth, the FTW defect must be the actual cause of P's harm. If there were multiple actors or actions and the conduct of one party alone would not have caused the harm and the harm is indivisible, both parties will be jointly liable unless they can prove what portion of the harm was caused by each. Here, the FTW defect and [actor] caused the harm but the harm is indivisible because [facts]. Thus, both will be considered the actual cause of P's harm.

Answer 185

Fourth, the FTW defect must be the actual cause of P's harm. If there were two or more actors and any one actor's conduct was sufficient to cause the harm, both actors are liable for P's harm. Here, the FTW defect and x both contributed to P's harm because [facts]. [Facts] indicate either would have been sufficient to cause the entire injury. Those both will be considered the actual cause of P's harm.

Answer 186

Fourth, the FTW defect must be the actual cause of P's harm. If two or more actors contributed to P's harm but it is impossible to tell which caused the injury, each will be liable for the full extent of the harm. Here, because [facts] indicate both D and X contributed to the harm and it is impossible to tell who caused the injury, both will be considered the actual cause of the harm.

Answer 187

Fourth, the FTW is the proximate cause of P's harm if the harm results because of the unreasonably dangerous nature of the defect.

Answer 188

However, the FTW defect is not the proximate cause of P's harm if it is too remote in time and space. Here, D's possession is not the proximate cause because [facts] mean the harm was too remote in time or space.

Answer 189

The FTW defect is not the proximate cause of harm if it results from P's unforeseeable use of the product. Here, D's use of the product to do [facts] was unforeseeable because [facts].

Answer 190

The FTW defect is the proximate cause of P's harm even though the danger created by FTW defect resulted in harm he had no reason to expect due to negligence of a third-party , or force of nature. Here, the FTW defect is the proximate cause of P's harm because [facts].

Answer 191

Foreseeability of the extent of harm is not required. The FTW defect the proximate cause of all harm sustained by P even though [facts] made her harm greater than that of an ordinary person.

Answer 192

Duty to mitigate, contributory negligence, assumption of the risk, comparative responsibility, State-of-the Art, as safe as competitors

Answer 193

D will likely raise the State-of-the-Art defense, which provides that if D can show at the time the product was manufactured, the state of the art did not allow for the production of a safer product at an acceptable price, the product will be found nondefective. Here, [facts] indicate the state-of-the-industry did not allow for production of a safer alternative at a lower price because [facts]. Thus, D will likely be successful and will not be strictly liable for P's harm.

Answer 194

D will likely argue that the FTW is not defective because it is as safe as the same product manufactured by competitors. However, this defense will most likely fail because most jurisdictions do not recognize this defense. It is not a reasonable defense because the entire industyr may have been lagging in installing safety devices.

Answer 195

D may argue that he is not responsible for all or some of P's harm because P failed to fulfill her duty to mitigate the harm. Here, P had a duty to mitigate harm that could be avoided. P did not do [facts], so D will not be liable for [x].

Answer 196

If the jurisdiction recognizes contributory negligence, D may argue that because P did [facts] she was contributorily negligent which absolves his liability. However, this argument will fail because contributory negligence is not a defense to strict liability.

Answer 197

However, in those jurisdictions, D may be able to assert a defense of assumption of the risk if he can show P knowingly and voluntarily came into contact with the Domestic animal. Here, [facts] indicate P knowingly and voluntarily assumed the risk because [facts].

Answer 198

If the jurisdiction recognizes comparative responsibility for strict liability torts, D will argue that his liability should be reduced because P was also negligent. He will argue P was negligent because [facts]. This argument will likely succeed because [facts].

Answer 199

In a pure comparative negligence jurisdiction, P's recovery will be reduced by the percentage of the harm attributed to her. In a modified jurisdiction, P's harm will be reduced by the percentage of the harm attributed to her. However, if her percentage exceeds 50%, she will not recover.

Answer 200

The issue is whether D is liable to P for making a misrepresentation of a material fact when he did [facts].

Answer 201

One who by a fraudulent misrepresentation or nondisclosure of a fact that it is his duty to disclose causes physical harm to the person or to the land or chattel of another who justifiably relies upon the misrepresentation, is subject to liability to the other.

Answer 202

To prove fraudulent misrepresentation, P must prove with a preponderance of evidence that 1) D misrepresented a material fact to P, 2) D knew the representation was false or he did not have the knowledge he claimed to have, 3) D intended to induce D's reliance on the misrepresentation, 4) P actually relied on it, 5) the reliance was justifiable, and 6) P suffered damages.

Answer 203

First, D misrepresented a material fact to P if he mislead P about a fact concerning the quality, nature or appropriate use of the product on which a normal buyer may be expected to rely. Here, D misrepresented a material fact because a normal buyer would expect to rely on [what]. But D did [facts].

Answer 204

Puffery and statements of opinion are generally not sufficient. Here, D's statements were puffery because [facts].

Answer 205

Failure to disclose a fact does not result in misrepresentation unless 1) D had a fiduciary duty, 2) failure to disclose resulted in a half-truth, 3) subsequent information would make previously disclosed facts inaccurate, or 4) the fact was basic to the transaction. Here, D's failure to disclose [fact] did not result in a misrepresentation because [facts].

Answer 206

Second, D must have intentionally misrepresented the material fact, or recklessly misrepresented it because he did not have the knowledge he claimed to have. Here, D [intentionally][recklessly] misrepresented the material fact because [facts].

Answer 207

Third, D must have intended to induce D's reliance on the misrepresentation. Here, D intended to induce D's reliance on the misrepresentation because [facts].

Answer 208

Fourth, P must have actually relied on the misrepresentation. Reliance may be found where the misrepresentation was a substantial factor in P's reliance. Here, P actually relied on the misrepresentation because [facts].

Answer 209

No liability exists if the misrepresentation is not known or does not influence the transaction. Here, the misrepresentation [was not known][did not influence the transaction] because [facts].

Answer 210

Fifth, P's reliance must have been justifiable. Reliance is generally justifiable unless P overlooked an obvious falsity. Here, P's reliance was justifiable because [facts].

Answer 211

P generally has no duty to investigage the truth of the information provided by D.

Answer 212

P can recover for intangible financial loss due to D's misrepresentation.

Answer 213

One who by negligent misrepresentation or nondisclosure of a fact that it is his duty to disclose causes physical harm to the person or to the land or chattel of another who justifiably relies upon the misrepresentation, is subject to liability to the other.

Answer 214

Second, D negligently made the misrepresentation if a reasonable person should have known such representations to be false when making them.

Answer 215

One engaged in the business of selling chattels who makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm.

Answer 216

D is strictly liable to P for misrepresentation because [facts] mean he is a seller of chattels.

Answer 217

The goal of compensatory damages is to put P as close as possible to the position he would have been in had the harm not occurred.

Answer 218

P suffered property damage because [facts]. Thus, P may recover compensatory damages for the damage.

Answer 219

Because P suffered physical harm of [facts], P may recover compensatory damages for a) past and future physical and mental pain, b) past and future medical expenses, c) loss of earning capacity, d) permanent disability and disfigurement, e) shortened life expectancy, f) loss of enjoyment of life, where applicable. Here, P may recover [category] because [facts].

Answer 220

Consciousness is generally required for recover of pain and suffering and loss of enjoyment of life. Here, P will not be able to recover for these because [facts].

Answer 221

Courts will generally instruct the jury to aware the plaintiff the present value of these losses, especially where lost future earnings and future medical expenses are concerned. PV is equal to the future value over 1+ an assumed interest rate, raised to the number of years in the future.

Answer 222

Many courts do not allow the jury to consider the impact of inflation.

Answer 223

Any recovery for personal injury is tax-free at the federal level.

Answer 224

The collateral source rule provides that P can recover for out-of-pocket expenses even if she is reimbursed for those expenses by a third-party. However, no double dipping is generally allowed. The third-party is usually subrogated to the rights of P and has the right of reimbursement by P out of any damage award.

Answer 225

P has a duty to mitigate damages and cannot recover for any damages she could have avoided.

Answer 226

A majority of jurisdictions do not permit recovery for pure economic loss in negligence and strict liability claims. Economic loss is damage to a product itself or monetary loss caused by a defective product which does not cause personal injury or damage to other property.

Answer 227

However, P may be able to recover for consequential economic loss that is a result of financial harm to P as a result of physical harm or property damage.

Answer 228

D's injury while in service of his employer is generally limited to recovery only by workman's compensation insurance. Workman's compensation does not allow recovery for pain and suffering. However, P can recover in tort if the employer intentional caused the harm or if a third-party caused the harm while P was in service of his employer.

Answer 229

The issue is whether P can recover from D for defamation because D did [facts].

Answer 230

One who publishes a false and defamatory statement that injures another's reputation may be liable for the injury.

Answer 231

To prevail in a defamation claim, P generally must prove with a preponderance of evidence that 1) D published a statement; 2) the statement was false and defamatory, 3) the statement was of and concerning P, that 4) D acted at least negligently as to the falsity of the statement, and 5) there is either actionability without special harm, or the existence of special harm.

Answer 232

Due to 1st Amendment Constitutional concerns, the rules applicable to some of the elements of the claim depend upon whether P is a public plaintiff and whether the matter is one of public concern.

Answer 233

A public official or figure is someone who has a policymaking role in government or who voluntarily thrusts himself into the public spotlight. Here, P is [not] a public official or figure because [facts].

Answer 234

A matter is of public concern if it relates to a matter of social or political concern or is the subject of legitimate news interest. Here, the matter is of public concern because [facts].

Answer 235

Because the matter is not of public concern courts can require D or P to prove falsity of the statement. Or Because the matter is of public concern, P must prove falsity of the statement.

Answer 236

Claims involving public officials and matters of public concern require actual malice. Claims involving private plaintiffs and private matters require negligence.

Answer 237

Finally, [a libel or slander per se claim is actionable without the existence of special harm.][P must prove special harm unless she proves D acted with actual malice].

Answer 238

First, D published a statement if he communicated, by words or actions to someone other than P who understood the statement.

Answer 239

D intentionally published a statement if he acted for the purpose of communicating it to a third person or with knowledge that it as substantially certain to be so communicated. Here, D intentionally published the statement because [facts].

Answer 240

D negligently published a statement because he failed to recognize an unreasonable risk that the statement would be published to a third-party. Here, D negligently pubilished the statement because [facts].

Answer 241

The statement was published even if D intended to publish it to someone other than the person to whom it was published.

Answer 242

D is liable for republishing a statement made by another.

Answer 243

D is also liable for the republishing of the statement by another party.

Answer 244

Second, the statement must be false and defamatory. [P][D] must prove falsity in this case. Slight inaccuracies are immaterial provided the statement is true in substance. Here, [D][P] will argue [facts and argument].

Answer 245

A statement is defamatory if it a) might arouse Scorn, Hatred, Obloquy, Contempt, Shame in right thinking people, or 2) it tends to harm P's reputation in the community or deters third parties from associating with her.

Answer 246

Statements of fact are always capable of defamatory meaning.

Answer 247

Opinions are not capable of defamatory meaning unless they imply the allegation of undisclosed defamatory facts as the basis for the opinion.

Answer 248

The meaning of a communication is that which the recipient correctly or mistakenly but reasonably understands that it was intended to express.

Answer 249

If the statement is ambiguous and capable of multiple meanings, its meaning is that which a reasonable person would interpret it to be.

Answer 250

The defamatory meaning must be determined in context with the entire publication.

Answer 251

The meaning of the statement is defamatory because [facts] would tend to [arouse hatred, contempt, scorn or shame in right-thinking people because [analysis].

Answer 252

Mere name calling is opinion and not defamatory.

Answer 253

Hyperbole is generally treated as opinion, not a statement of fact that can be proven true or false, especially in reviews of books, movies or restuarants.

Answer 254

It is enough that the communication would tend to harm P's reputation in the eyes of a substantial and respectable minority of the community.

Answer 255

It is not required that P's reputation actually be harmed for the statement to have defamatory meaning.

Answer 256

Communications that would harm P's reputation only to a group whose standards are so anti-social that it is not proper for the courts to recognize them are not actionable defamatory statements.

Answer 257

A statement made about a deceased individual is not defamatory because I t is not legally possible to defame someone who is deceased.

Answer 258

Third, the statement must be of and concerning P. The statement was of and concerning P if the recipients correctly, or mistakenly but reasonably understood that it was intended to refer to P.

Answer 259

P is not identified if she is part of a large group that is identified by the statement. Courts generally find a group of more than 25 to be a large group.

Answer 260

P may be identifiable if she is part of a small group that was being defamed. Courts generally find a group of 25 or less to be a small group.

Answer 261

Fourth, D must have acted with [actual malice][at least negligence] as to the falsithy of the statement.

Answer 262

D acted with actual malice if he either knew the statement was false or acted with reckless disregard as to the falsity.

Answer 263

D acted with reckless disregard if he consciously disregared serious doubts as to the truth of the statement.

Answer 264

D acted negligently because his conduct created a reasonable risk that the statement was false. D acted negligently unless he acted reasonably in checking on the truth or falsity of the statement before publishing it.

Answer 265

Fifth, the claim must be actionable without proof of special harm, or P must prove special harm. Proof of special harm is required in cases involving public plaintiffs and/or public concerns unless P proves actual malice as to the falsity of the defamatory statements. For all other cases special harm is required for cases of slander that do not qualify as slander per se.

Answer 266

Libel is written or otherwise permanent defamatory communications. Slander is spoken material that is not otherwise permanent. Statements published over radio or television broadcasts are always libel even if spoken.

Answer 267

Statements that are slander may still be actionable without proof of special harm if they are "slander per se". A statement is slander per se if it accuses P of a) a crime of moral turpitude, b) having a loathsome disease, c) gross sexual misconduct, or d) unfitness for employment or position.

Answer 268

P will [not] have to prove special harm because [reasons].

Answer 269

Special harm is harm of a pecuniary nature.

Answer 270

Consent, Absolute privileges, qualified privileges

Answer 271

1) Judicial proceedings, 2) Legislative proceedings, 3) Executive, 4) Compelled communications, 5) spousal communications

Answer 272

Judges, witness, attorneys, jurors and other court offices are absolutely privileged to defame another if the defamatory statement was made in the course of judicial proceedings and related to the proceedings.

Answer 273

Legislative offers are absolutely privileged to defame P if the defamatory statement was made in the course of federal or state legislative proceedings, even if it did not relate to the matter being discussed in the proceeding.

Answer 274

Executive governemental officers are absolutely privileged to defame others in statements made in the course of their role as an executive.

Answer 275

One who is compelled to make publications by law are absolutely privileged to defame.

Answer 276

D is absolutely privileged to make defamatory statements to his spouse.

Answer 277

1) fair reporting, 2) fair comment, 3) public interest, 4) private interest

Answer 278

A member of the news media has a qualified privilege to publish defamatory statements if he is fairly and accurately reporting on or summarizing an official proceeding or public meeting that dealt with a matter of public concern. The privilege is abused if the report is not fair and accurate.

Answer 279

One has a a qualified privilege to defame if the statement is: a) an opinion or criticism, b) based on facts disclosed or generally known, c) the facts were true, assumed or gleaned from a prior statement, and d) concerned matters of public interest.

Answer 280

One has a qualified privilege to defame if the statement was communicated to a public official regarding a matter of public interest that falls within the official's duties.

Answer 281

One has a qualifed privilege to defame if the statement was made in support of the private interests of himself or a third party if he reasonably believed a) the matter pertains to a sufficiently important private interest, and b) communicating the statement is necessary to proctect the interest. Most statement made upon request will be privileged. Courts also consider the relationship between the parties.

Answer 282

Qualified privileges can be abused if D: 1) published the statement with actual malice, 2) excessively, 3) an unrelated purpose, or 4) if the publication was not reasonably necessary to protect the interests D purported it will protect

Answer 283

P will be able to recover actual damages. If there are no actual damages, he may be able to recover nominal damages Because she proved actual malice she will also be able to recover punitive damages.

Answer 284

The issue is whether P can recover from D because D [facts].

Answer 285

One who misappropriates the name or likeness of another for their own benefit without consent is liable for invasion of privacy.

Answer 286

To prove misappropriation, P must prove with a preponderance of the evidence that 1) appropriated her name or likeness, and 2) D did it for his benefit.

Answer 287

First, D appropriated P's name or likeness if he invoked P's reputation, prestige, social or commercial standing, public interest or other values of P's name or likeness.

Answer 288

P's name is not appropriated by the mere mention of it in reference to it in connection with his legitimate public affairs.

Answer 289

P's name or likeness is not appropriated if used in non-advertising content by a media defendant.

Answer 290

Use of P's name or picture in advertising for a book periodical, movie or broadcast is not appropriation unless P is not associated with them.

Answer 291

Broadcast or publishing of details of P's performance or act is not appropriation. However, broadcast of the entire broadcast may be.

Answer 292

Second, the appropriation must be for D's commercial, financial or personal benefit, whether pecuniary or non-pecurniary.

Answer 293

Mere adoption of the same name as P is not appropriation unless D passes himself off as P and otherwise seeks to obtain for himself the value or benefits of P's name or identify.

Answer 294

D's engagement in the business of publication for profit is not enough to make an incidental publication a commercial benefit of name or likeness.

Answer 295

The issue is whether D is liable to P for invasion of privacy because he [facts].

Answer 296

One who intrudes upon the seclusion of another is liable for invasion of privacy.

Answer 297

To prove intrusion upon seclusion, P must prove with a preponderance of evidence that: 1) D intruded upon P's seclusion, 2) the intrusion was intentional, 3) the intrusion would be highly offensive to a reasonable person.

Answer 298

First, D must intrude upon D's seclusion but intruding upon P's seclusion, solitude or private affairs or matters.

Answer 299

Intrusion can be physical, by use of D's senses or by some other form of investigation into her private concerns but must be into what is and what is entitled to remain private.

Answer 300

A physical intrusion can be into P's home, hotel or hospital room or any other place where she has an expectation of privacy.

Answer 301

The use of wiretaps, video cameras and other kinds of secret electronic surveillance, or computer hacking involve the use of D's senses to intrude into a private place.

Answer 302

The mere gathering of information about an individual is not itself an invasion of privacy. The investigation must conducted in a manner that invades P's private matters to satisfy this element.

Answer 303

There is no liability for examination of public records or of documents P is required to keep and make public upon request.

Answer 304

D is liable for intrusion even if he does not give publicity to or otherwise share private information he learned while intruding upon P's solitude.

Answer 305

Here, D intruded upon Ps seclusion by [method] because [facts]. The invasion was into a private place because [facts]. Optional: The fact that he did not share with any others the information learned does not relieve D of liability.

Answer 306

Second, the intrusion must be intentional. D acted with intention if he acted with the purpose of intruding upon P's seclusion, or acted knowing with substantial certainty it would occur. Here, D acted [with the purpose of][knowing with substantial certainty ] intrusion upon P's seclusion because [facts].

Answer 307

Third, the intrusion was highly offensive because it was substantial and achieved by conduct a reasonable person would object to.

Answer 308

The persistence and frequency of an intrusion is relative to whether it is highly offensive. If the persistence and frequency because a substantial burden to P's existence, they are highly offensive.

Answer 309

Mere annoyance is not sufficient to result in highly offensive conduct.

Answer 310

D's status as a member of the media gathering news worthy information on a matter of public concern may allow for a higher threshold before the conduct is considered highly offensive.

Answer 311

Here, D's intrusion was highly offensive because a reasonable person would object to [facts]. It was substantial because it was persistent and of sufficient frequency to put a substantial burden on P's existence because [facts].

Answer 312

Consent, absolute privileges, qualified privileges

Answer 313

The issue is whether D is liable to P for [facts indicating he disclosed infor about P].

Answer 314

One who discloses a private fact about another without permission is liable for invasion of privacy.

Answer 315

To prove invasion of privacy by public disclosure of private facts, P must prove with a preponderance of evidence that: 1) D disclosed a fact about P, 2) the fact was private, 3) the disclosure would be highly offensive to a reasonable person, and 4) the private fact did not relate to a matter of legitimate public concern.

Answer 316

First, D must disclose a fact about P.

Answer 317

D discloses a fact when he gives publicity to it by communicating it to the public at large or to so many persons that the matter is substantially certain to become one of public knowledge.

Answer 318

It is not disclosure to communicate a fact to only one person or a small group.

Answer 319

Any publication through mass media or broadcast results in giving publicity even if the audience is small.

Answer 320

Disclosure on a public website or any site that can be accessed by many people likely results in giving publicity to a fact.

Answer 321

Knowing disclosure by D to a journalist who is expected to publicize the fact may be sufficient.

Answer 322

P must be identifable as the person to whom the fact pertains.

Answer 323

D's disclosure of a fact about another person may result in publicity if P if the fact relates to P and P is identifiable by the disclosure.

Answer 324

Here, D disclosed [facts] to the public at large because [facts]. P was identifiable as the person to whom the fact pertains because [facts]. Thus, D disclosed a fact about P.

Answer 325

Second, the fact must be private. Private facts are facts not known or available beyond a small number of people.

Answer 326

Facts which are a) part of public record, 2) noticeable when P is in public, or 3) widely shared by P are not private.

Answer 327

P sharing a fact with selected neighbors, friends, family, medical providers or public officials involved in an issue does not make a fact public.

Answer 328

Here, the fact D shared was private because [facts].

Answer 329

Third, disclosure of the private fact is highly offensive it a reasonable person would feel justified in feeling seriously aggrieved by it.

Answer 330

Liability is generally limited to disclosure of the most intimate, sensitive, or embarassing personal matters.

Answer 331

The ordinary, reasonable man would not take offense to disclosure of facts about his normal day-to-day activities.

Answer 332

Fourth, the issue must not be one of legitimate public concern. Matters of legitimate public concern are generally matters considered newsworthy. The defintion of newsworthy is broad an includes matters of popular appeal, even if distasteful, for education and for amusement.

Answer 333

A fact is of legitimate public concern when it has some connection with a topic of legitimate public concern.

Answer 334

An individual's connection with a topic of legitimate public concern is usually newsworthy.

Answer 335

A person's status as a public official/figure extends the definition of facts of legitimate public concern to include matters that may not otherwise be newsworthy.

Answer 336

The issue is whether D is liable to P for [facts indicating he put P in false light].

Answer 337

One who discloses information in a manner that puts another in a false light is liabile for invasion of privacy.

Answer 338

To prove a false light invasion of privacy claim, P must prove with a preponderance of evidence that: 1) D gave publicity to a matter concerning P, 2) the publicity placed P in a false light, 3) the false light would be highly offensive to a reasonable person, and 4) D acted with negligence unless actual malice is required due to 1st amendment concerns.

Answer 339

As with defamation, the fault requirement depends upon P's status as either a public or private plaintiff and whether the matter is of public concern. Here, since P is a public figure/official or the matter is of public concern, P must prove actual malice.

Answer 340

First, D must give publicity to a matter concerning P. D gives publicity to a matter when it is communicated to the public at large or to so many persons that the matter is substantially certain to become one of public knowledge.

Answer 341

It is not disclosure to communicate a fact to only one person or a small group.

Answer 342

Any publication through mass media or broadcast results in giving publicity even if the audience is small.

Answer 343

Disclosure on a public website or any site that can be accessed by many people likely results in giving publicity to a fact.

Answer 344

Knowing disclosure by D to a journalist who is expected to publicize the fact may be sufficient.

Answer 345

P must be identifable as the person to whom the fact pertains.

Answer 346

D's disclosure of a fact about another person may result in publicity if P if the fact relates to P and P is identifiable by the disclosure.

Answer 347

Here, D disclosed [facts] to the public at large because [facts]. P was identifiable as the person to whom the fact pertains because [facts]. Thus, D disclosed a fact about P.

Answer 348

Second, the publicity must place P in a false light. Publicity places P in a false light when it attributes to him attributes, beliefs or conduct that are false and which put him before the public in a false position.

Answer 349

Here, the publicity put P in a false light because [facts] attributed to him an [ABC} that was false. This attribution was false because [facts].

Answer 350

Third, the false light is highly offensive if a reasonable person would be justified in the eyes of the community of feeling seriously offended and aggrieved by the publicity.

Answer 351

Statements that are not defamatory can still place P in a false light.

Answer 352

Most minor errors would not be highly offensive to a reasonable person.

Answer 353

Here, the false light was highly offensive because [facts] would justify a reasonable person feeling seriously offended and aggrieved. A reasonable person would fee this way because [facts].

Answer 354

Fourth, D must have acted with actual malice. D acts with actual malice if he acted with knowing the publicity would place P in a false light, or recklessly disregard a high-risk of placing P in a false light.

Answer 355

D recklessly disregarded a high risk of placing P in a false light if he consciously disregard serious concerns he had entertained regarding the potential of false light.

Answer 356

Fourth, D acted negligently as to the falsity of the publicity and the false light in which it placed P if he created an unreasonable risk of harm because he did not act reasonably in checking on the truth or falsity of the matter or the manner in which the publicity would place P.

Answer 357

P may recover for a) harm caused by the invasion, b) emotional distress of the kind caused by such invasion, and c) actual har of which the invasion is the factual cause.

Answer 358

Survivor statutes allow the victim's estate to file a claim after the victim's death for harm to the victim prior to his death. Wrongful Death Statutes allow certain survivors of the victim to collect for their own harm due to the death.

Answer 359

Recovery is generally limited to pain and suffering, loss of earnings, and actual medical expenses up to the victim's death.

Answer 360

Many states prevent recovery if the victim's death was instant.

Answer 361

Recovery is generally limited to spouse or children. Some states allow parents to recover for loss their children.

Answer 362

Step-children and unmarried co-habitants likely cannot recover.

Answer 363

Damages are usually limited to those of pecuniary value including: 1) economic support they would have received 2) value of household services which the decedent performed 3) Loss of companionship 4) Loss of consortium 5) Moral guidance

Answer 364

D can assert any defense that he would have been able to assert against the victim, if D is alive.

Answer 365

Punitive damages are generally limited to intentional torts, or when D acted recklessly or with actual malice.

Answer 366

An punitive damage award will violate the due process clause of the federal constitution’s Fourteenth Amendment if it is “grossly excessive."

Answer 367

The higher the ratio of punitive damages to compensatory damages, the more likely the award violates due process.

Answer 368

The employer is liable for on-the-job injuries even though these occur completely without fault on the part of the employer.

Answer 369

Employee's negligence does not reduce the statutory benefits.

Answer 370

The WC statute is the employee’s sole remedy against the employer.

Answer 371

WC Statutes do not allow for pain and suffering.

Answer 372

If P can show that the employer intentionally injured him, the employee may pursue a tort action.

Answer 373

P can file a tort action against a 3rd party that injured him while on-the-job.

Answer 374

Increases the amount of damages awarded—used in some states for punitive damages.

Answer 375

Reduces the amount of damages awarded—used in all states and the federal courts.

Answer 376

The court is required to give the party adversely affected by the additur or remittitur the opportunity to consent to it as an alternative to a new trial.

Answer 377

If D moves for a remittitur, the Maximum Recovery Rule will come into play. The standard is whether the verdict of the jury exceeds the maximum amount which the jury could reasonably find.

Answer 378

Court adds up the highest possible award for each element of damages, and if the total actual award is below this number, the remittitur is not granted.

Answer 379

Courts also consider: 1) Whether it “falls outside the range of reasonable and fair compensation” 2) Whether it “results from passion or prejudice” 3) Whether it “shocks the judicial conscience”

Answer 380

Damages for economic loss related to personal injury or property damage can be recovered.