mbe torts Flashcards

Question

strict liability **defense**

Answer 1

**assumption of the risk:** you know and appreciate the nature of risk and you proceed anyways, complete bar to recovery **comparative negligence**: assumption of the risk is not recognized as a separate defense (you can not plead this as a defense) it has been merged into the comparative-fault analysis and merely reduces recovery. The plaintiff’s awareness of the risk of her conduct is generally taken into account in determining the degree to which she is at fault, but it can also be considered in determining the reasonableness of the plaintiff’s or the defendant’s actions.

Answer 2

**Abnormally dangerous activities**: (blasting, explosion, chemicals) * def engaged in abnormally dangerous activity will be held strictly liable for personal injuries and property damage caused by activity regardless of attempt to prevent harm * defendant liable for harm flowing from risk that made activity abnormally dangerous * Uncommon activity in community that poses foreseeable & highly significant risk of physical harm * Risk cannot be minimized by reasonable care and * Physical harm caused by abnormal danger ## Footnote * look to foreseeability of risk of harm, severity of harm, appropriateness of location for activity, whether it has great value to community

Answer 3

1. negligence 2. strict product liability 3. warranty

Answer 4

1. product **defective** when it left factory 2. sold by seller engaged in business of selling product 3. sold to foreseeable user (purchaser) 4. who used in intended manner 5. the defect caused the plaintiff PHYSICAL HARM (bodily or to property, mere economic loss due to defective product and consequences of the defective product like lost revenue is NOT ENOUGH FOR STRICT LIABILITY CLAIM) **or** failure to warn * **types of defects:** 1. manufacture 2. design 3. failure to warn * Can sue anyone in chain ## Footnote * can recover personal injury or property damage * no recovery if defect in product causes damage only to product itself, like couple buys RV and it catches fire spontaneously but nothing/no one inside * seller could be someone who installls (i think i have seen some say they cannot, but double check)

Answer 5

* **assumption of risk**: total bar to recovery * **comparative fault**: plaintiff's own neglgience will reduce his recovery DOES NOT ABOLISH THE CLAIM, JUST REDUCES * **product misuse, modification, alteration**: generally manufacturer (seller) will be liable as long as misuse, modification, or alteration was foreseeable * **substantial change in product**: bar to recovery * **compliance with government standard**: admissible to show product isnt defective, but not conclusive **unless** there is a federal preemption where congress has preempted regulation in a particular area * **state of the art defense**: some jurisdictions, relevant state of the art at time of manufacture/warning is evidence product isnt defective, in some jurisdcitions compliance with SOA is total bar to recovery ## Footnote disclaimers, limitations, and waivers generally dont impact strict liability claims

Answer 6

1. The commercial seller owed the plaintiff a duty of care. 2. The commercial seller breached this duty. 3. The breach caused the plaintiff's injury. 4. The plaintiff's damages are traceable to that injury.

Answer 7

* there was a label sticker, something was in writing promising how product would work * can sue anyone in distribution chain * **implied warranties**: 1. **merchantability**- product suitable for ordinary purposes for which its sold 2. **fitness for particular purpose**: seller knows particular purpose for which product is being sold and buyer relies on seller's skill or judgment * **express warranties**: an affirmation of fact or promise by seller that is part of basis for bargain **defenses**: *disclaimers* * The commercial seller of the product may generally disclaim or limit the remedies and warranties available in a products liability action. * But any such disclaimer or limitation does not bar or reduce an injured plaintiff's recovery for physical harm. * And in the case of consumer goods, any limitation of consequential damages for personal injuries is unconscionable and therefore invalid. *tort defenses* * assumption of risk * comparative fault * contributory neglgience * product misuse

Answer 8

* **ENTIRE** community brought by public official, **must** have special/unique damages (Special injury where child is on navigable water and nearby golf course knows its players land balls there, does nothing, and child is hit) * unlike a private nuisance, a public nuisance does not require that the plaintiff have possessory rights in real property (can be harmed on public navigable waterway) * A private plaintiff can sue for public nuisance—i.e., an unreasonable interference with a right common to the general public—only if the plaintiff sustained special damage different from that suffered by the public at large. ## Footnote unreasonable interference could be limbs and debris fromm trees posing danger to neighboring houses because they blow into them

Answer 9

substantial and unreasonable interference with the **use** and **enjoyment** of someone's property (must be unreasonable to an **objective** person) **must** be individual doing something ## Footnote An interference is unreasonable if the severity of the plaintiff's harm outweighs the utility of the defendant's conduct. blocking sunlight/view is not a nuisance, but a spite wall or fense is

Answer 10

* A defendant may use deadly force for the purpose of defending himself against the plaintiff only if the defendant reasonably believes that: 1. the plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force upon the defendant 2. the defendant is thereby put in peril of either death, serious bodily harm, or rape by the use or threat of physical force or restraint, **and** 3. the defendant can safely prevent the peril only by the immediate use of deadly force. ## Footnote * to justify use of force sufficient to cause death/serious bodily injury, def must have more than subjective suspicion that such force is necessary

Answer 11

* **intentional tort**= intentional/reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress, even in the absence of physical harm * **severe emotional/mental distress**= suffered mental distress sufficiently severe that she sought medical aid and the conduct would cause a reasonable person such distress * **plaintiff must show defendant** 1. desired to cause plaintiff emotional distress 2. knew with substantial certainty that the plaintiff would suffer emotional distress ***or*** 3. recklessly disregarded the high probability that emotional distress would occur ## Footnote * courts more likely to find conduct/language to be extreme and outrageous if the def is in a position of authority/influence over plaintiff or plaintiff is member of group that has heightened sensitivty (elderly/children) doctrine of transferred intent generally does not apply to intentional infliction of emotional distress * yelling mere insults, threats, or indignities at someone does not rise to the level of extreme and outrageous conduct, even when considering the power dynamic of an employer and employee. * Transferred intent may apply to IIED if, instead of harming the intended person, the defendant's extreme and outrageous conduct harms another.

Answer 12

* when two or more tortious acts combine to proximately cause an indivisible injury to the plaintiff, each tortfeasor is jointly and severally liable for that injury * each is liable to the plaintiff for the entire damage incurred * joint and several liability applies even though each totfeasor acted entirely independently * where p can recover entire judgement from either d (Contribution), the typical rule for contribution allows any tortfeasor required to pay more than his share of damages to have a claim against the other jointly liable parties for the excess * contribution is NOT allowed in favor of those who committed intentional torts, even if each tortfeasor was equally culpable ## Footnote * if negliglent tortfeasor pays full judgment, can be fully indemnified for the entire amount from the friend who was an intentional tortfeasore

Answer 13

**Trespass to chattels**: intentional interference with the plaintiff's right to posess personal property either by * disposessing the plaintiff of the chattel; * using or intermeddling with the plaintiff's chattel; ***or*** * damaging the chattel **can show damages by:** (1) actual harm to the chattel (2) substantial loss of use of the chattel, ***or*** (3) bodily harm to the plaintiff.

Answer 14

Liability arises when a defendant: (1) uses the plaintiff's name, likeness, or an item closely associated with the plaintiff without authorization, (2) obtains a benefit, **and** (3) causes the plaintiff an injury.

Answer 15

*zone-of-danger*: 1. the defendant's negligent conduct placed the plaintiff in danger of immediate bodily harm ***and*** 2. that danger of the physical impact caused the plaintiff serious emotional distress. * most jurisdictions require some physical manifestation of distress (nausea, insomnia, miscarriage) **VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV** *Special Situations*: Negligent infliction of emotional distress occurs under the special-situations theory when the plaintiff suffers serious emotional distress because the defendant negligently: (1) delivered an erroneous announcement of death or illness, (2) mishandled a loved one's corpse or bodily remains, or (3) contaminated food with a repulsive foreign object. * An NIED plaintiff who alleges that the defendant mishandled the corpse or bodily remains of a loved one need not have witnessed the mishandling to prevail **VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV** *Bystander*: * Defendant negligently injured plaintiff’s close relative * Plaintiff contemporaneously perceived that event * Event caused plaintiff serious emotional distress **VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV** pure economic harm insufficient to recover, must have physical injury and/or property damage ## Footnote plaintiff may recover damages for mental suffering once he brings an underlying tort claim from which he suffered an original physical impact/injury. like where using asbestos materials, found to be at increased risk of cancer, becomes emotionally distressed. he may tack on damages for mental and emotional suffering to the underlying claim.

Answer 16

* **same tort; different person**: Requisite intent exists if defendant intends to cause relevant tortious consequence to third party & instead causes that consequence to plaintiff (assault, battery, false imprisonment, trespass) * **different tort; same person**: Requisite intent exists if defendant intends to commit tort against plaintiff & instead commits different tort against plaintiff (assault, battery, false imprisonment, trespass)

Answer 17

Liability for intentional misrepresentation arises when: (1) the defendant knowingly or recklessly misrepresents a material fact or conceals a material fact with the intent to induce the plaintiff's reliance **and** (2) the plaintiff reasonably relies on the misrepresentation and suffers pecuniary loss as a result. **VVVVVVVV** *duty to disclose* Fraud can also occur when a defendant fails to disclose a material fact—but only if the defendant had a duty to disclose it. There is an affirmative duty to disclose a material fact in three limited circumstances: * The plaintiff has a fiduciary relationship with the defendant. * The plaintiff is likely to be misled by the defendant's prior statements. * The plaintiff is mistaken about a basic fact of the transaction that the defendant is aware of and should disclose (in a minority of jurisdictions). (BUT remember, people are generally entitled to use their superior knowledge/expertise while bargaining)

Answer 18

intentionally committing an act depriving the plaintiff to possession of his chattel or interfering with the plaintiff's chattel in a manner so serious as to deprive the plaintiff entirely of the use of the chattel intent: defendant must only intend to commit the act that interferes and mistake of law or fact is not a defense damages for conversion are the full market value at the time of conversion | more extreme the interference, more likely its conversion ## Footnote trespass v chattels consider the duration and extent of the interference, defendant's intent to assert a right inconsistent with the rightful possessor, defendant's good faith, expense or inconvenience to the plaintiff and extent of the harm

Answer 19

* defendant intentionally inflicted harmful/offensive bodily contact with the plaintiff * Contact is offensive when a person of ordinary sensibilities (a reasonable person) would find the contact offensive (objective test). * contact is offensive when the defendant knows that the contact is highly offensive to the plaintiff's sense of personal dignity, and the defendant contacts the plaintiff with the primary purpose that the contact will be highly offensive, unless the court determines that imposing liability would violate public policy. * def liable for direct and indirect contact (Sets in motion force that brings harmful/offensive contact with plaintiff's person)

Answer 20

* owner of animal can be held responsible for damage caused when animal escapes its owners property * because dog is domestic animal, damage caused by defendant's dog will generally create liability for compensation only if owner knew of dog's "mischievous propensity" ## Footnote some states impose strict liability for damage caused by wandering/trespassing dogs

Answer 21

1. an act 2. intent **and** 3. causation

Answer 22

* actor acts with the purpose of causing the consequence OR * the actor knows the consequence is substnatially certain to follow * **children and mentally incompetent people**: can be held liable for intentional torts if they act with requisite intent

Answer 23

must result in act of harmful or offensive nature

Answer 24

* harmful: causes an injury, pain, illness * offensive: a person of ordinary sensibilities would find contact offensive, victim need not be conscious of touching to be offensive, and if victim is hypersensitive and def knows that then the def may still be liable * contact: can be direct, but does not need to be * with person of another: includes anything connected to plaintiff's person

Answer 25

* what has to be intended is the contact, not the offense * the doctrine of transferred intent applies

Answer 26

* no proof of actual harm is required; the plaintiff can recover nominal damages * the plaintiff can also recover damages from physical harm flowing from the battery * **eggshell plaintiff**: a def is liable for all harm that flows from battery, even if its much worse than def expected it to be * **many states allow punitive damages if def acted**: outrageously or with malice

Answer 27

there is no battery if there is express or implied consent **VVVVVVVVVV** **negation of consent**: **lack of capacity**: * Plaintiff's lack of capacity due to youth, intoxication, or intellectual incompetence may negate validity of consent * Plaintiff who appreciates nature, extent & potential consequences of defendant's conduct has capacity to consent to it * Adult generally is rebuttably presumed to have capacity to consent **duress** * Actual consent given under duress (e.g., physical force, threats) is not valid * Threat must be of present action, not future action * Threats of economic duress & moral pressure generally do not render plaintiff's consent invalid **substantial mistake** Actual consent due to substantial mistake regarding nature of invasion of plaintiff's interests, extent of expected harm, or defendant's purpose in engaging in conduct is valid unless defendant: * caused mistake by affirmative misrepresentation or fraud or knew of mistake

Answer 28

* A defendant is generally liable for trespass if the defendant intentionally entered the plaintiff's property without permission. * However, a trespass may be excused by either of the following privileges: 1. **public necessity** – an intrusion that is, or reasonably appears to be, necessary to protect a large number of people from a public disaster (e.g., hurricane, oil spill, spreading fire) 2. **private necessity** – an intrusion that is, or reasonably appears to be, necessary to protect oneself, third parties, or property * When a trespass arises from private necessity, the property owner **cannot** recover nominal or punitive damages from the trespasser. * **But** the trespasser remains liable for actual damages caused by the trespass unless the entry was for the property owner's benefit (e.g., to protect the owner's property). ## Footnote when an actor has a privilege to enter the land of another because of a necessity, that privielege supersedes privilege of a landowner has in defense of property

Answer 29

At common law, that duty was described as one requiring the highest level of care consistent with the practical operations of the business.

Answer 30

* To prevail on a claim for intentional interference with a contract, a plaintiff must prove that: 1. a valid contract existed between the plaintiff and a third party 2. the defendant knew of that contractual relationship 3. the defendant intentionally and improperly interfered with the contract's performance and 4. that interference caused the plaintiff pecuniary (monetary) loss. * The plaintiff's pecuniary loss need not be substantial for it to prevail on an intentional interference with contract claim. ## Footnote A showing of any pecuniary loss is sufficient. Therefore, a defendant's argument that it did not substantially impact the plaintiff's overall business—i.e., that its interference caused only a small pecuniary loss—will not absolve the defendant of liability on such claims.

Answer 31

Negligent misrepresentation is based upon a breach of the duty to supply correct information and often arises in the context of accountants and other suppliers of commercial information (e.g., attorneys). This tort requires proof of the following elements: 1. The defendant negligently provided false information during the course of his/her business or profession. 2. The plaintiff justifiably relied upon the false information and suffered pecuniary (i.e., financial) loss as a result. 3. The plaintiff was in a contractual relationship with the defendant or was a third party known by the defendant as one for whose benefit the information was supplied. * However, a defendant who negligently provides information for a particular purpose is not liable for the plaintiff's financial loss if the plaintiff used the information for a different purpose. * **defenses**: negligence defenses * **damages**: plaintiff can recover reliance (out-of-pocket) and consequential damages if the negligent representation is proven with sufficient certainty

Answer 32

* defendant engages in an act that 1. causes reasonable apprehension of an imminent harmful or offensive bodily contact **and** 2. the defendant intends to cause apprehension of such contact or to cause such contact itself * **bodily contact** is not required * plaintiff's **apprehension** must be reasonable and plaintiff must be aware of the defendants action * **imminent**: must be without significant delay, threats of future harm/hypothetical harm are not sufficient * **mere words** do not constitute assault, but under certain circumstances if def able to carry out threat imminently and takes actions to put victim in apprheension, there may be assault * **intent**: def must inend either to cause an apprehension of imminent harmful or offensive contact OR the contact itself * **no proof of actual damages** required; plaintiff can recover nominal damages; plaintiff can recover damages from physical harm flowing from assault, and punitive damages may be available

Answer 33

* public figures and public officials cannot recover unless they can show that the words contain a false statement of fact that was made with actual malice * actual malice: with knowledge that statement is false or with reckless disrefard of its potential falsity * supreme court has suffested that even private plaintiffs cannot recover if the conduct at issue is speech on a matter of public concern

Answer 34

if defendant directed extreme and outrageous conduct toward one party and ended up causing severe emotional distress to another party, the doctrine of transferred intent may make him liable for IIED, but only under certain circumstances **immediate family member:** * immediate family member of victim who is present at time of conduct and perceives conduct may recover for IIED regardless of whether that family member suffers bodily injury as a result of the distress **bystander**: can recover for IIED if present at the time of conduct, perceives the conduct, and suffers distress that results in bodily injury (physical manifestation of the distress) **different intentional tort**: if the defendant commits a different intentional tort toward one victim, thereby causing severe emotional distress to another, the same rules apply

Answer 35

defendant's actions must be a cause in fact of the plaintiff's harm

Answer 36

* plaintiff must prove severe emotional distress beyond what a reasonable person should endure * often outrageous nature of the conduct is evidence of the plaintiff's distress * **hypersensitivity**: if the plaintiff experiences an unreasonable level of emotional distress, then the defendant is only liable if aware of the plaintiff's hypersensitivity * physical injury is not required (except for bystander)

Answer 37

1. defendant intends to confine or restrain another within fixed boundaries; 2. the actions directly or indirectly results in confinement; and 3. plaintiff is conscious of the confinement or harmed by it | example: locking a person in a closet ## Footnote damages: plaintiff can recover norminal damages; actual damages compensable

Answer 38

* area can be large * does not need to be stationary ## Footnote van is moving, but if person cannot leave the van, that is confinement

Answer 39

* use of physical barriers, physical force, threats, invalid invocation of legal authority, duress, or refusing to provide a safe means of escape * a court may find false imprisonment when the defendant has refused to perform a duty to help a person escape * **shopkeeper's privilege**: a shopkeeper can, for a limited time and in a reasonable manner, detain a suspected shoplifter

Answer 40

* immaterial to the tort

Answer 41

* defendant must act with the purpose of confining the plaintiff or knowing that the plaintiff's confinement is substantially certain to result * confinement due to defendan'ts negligence: defendant will not be liable under intentional tort of false imprisonment * transferred intent applies

Answer 42

1. consent 2. self-defense 3. defense of others 4. defense of property 5. parental discipline 6. privilege of arrest

Answer 43

**express consent**: the plaintiff by words/actions manifests the willingness to submit to the defendant's conduct * defendant's conduct may not exceed the scope of the consent * ***consent by mistake***: a valid defense unless the defendant caused the mistake or knew of it and took advantage of it * ***consent by fraud***: invalid if it goes to an essential matter; if the fraud only goes to a collateral matter, consent is still a valid defense **implied consent**: the plaintiff is either silent (or otherwise nonresponsive) where their silence and continued participation can reasonably be construed as consent * ***emergencies***: its fair to assume that someone in need of rescuing would allow a rescuer to touch him absent explicit consent * ***injuries arising from athletic contests***: contests within scope of the sport; a defendant could be liable if conduct is reckless **mutual consent to combat** **capacity**: lack of capacity may undermine the validity of consent (youth, intoxication, incompetency)

Answer 44

**use of reasonable force**: force that is proportionate to defend against an offensive contact or bodily harm **duty to retreat**: * traditionally most courts required retreat before one could use deadly force * most jurisdictions state you need not retreat before using reasonable, proportionate force **initial aggressor**: NOT permitted to claim self-defense unless the other party has responded to non-deadly force with deadly force **injuries to bystanders**: a person acting in self-defense is not liable for injury to bystanders as long as injury was accidental and actor wasnt negligent toward bystander ## Footnote there are stand your ground laws

Answer 45

* The privilege to use **reasonable force** in the defense of third parties exists when the defendant reasonably believes that: 1. the circumstances are such that the third party has a privilege of self-defense and 2. the defendant's action is immediately necessary to protect the third party. * And a defendant may use **nondeadly force** for the purpose of defending a third party if the defendant reasonably believes that: 1. the plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force on the third party, 2. the force that the defendant is using is proportionate to the plaintiff's use of force or threat of force, and 3. the defendant can prevent the plaintiff's force or threat of force only by the immediate use of the force the defendant is employing.

Answer 46

may use reasonable force in defense of others, if the others would be entitled to use self-defense

Answer 47

**reasonable force**: may be used if person reasonably believes its necessary to prevent tortious harm to the property deadly force: cannot be used; a person may never use **deadly mechanical devices** to defend property (spring gun) **recapture of chattels (personal property)**: * reasonable force may be used to reclaim personal property that has been wrongfully taken, but only if you first request its return, unless that would be futile * if the original taking was lawful (like bailment) then only peaceful means may be used **force to regain posession of land** * ***common law***: reasonable force permitted * ***modern rule***: use of force is no longer permitted; only legal process

Answer 48

parents may use reasonable force as necessary to discipline children

Answer 49

**private citizen** * permitted to use reasonable force to make an arrest in the case of a felony ***IF*** 1. felony has actually been committed ***and*** 2. the arresting party has reaosnable grounds to suspect that the person being arrested has committed the felony * ***it is*** a defense to make a reasonable mistake as to the identity of the felon * ***it is not*** a defense to make a mistake as to whether the felony was actually committed **police** * must reasonably believe a felony has been committed and that the person arrested committed it * an officer who makes a mistake as to whether a felony has been committed ***is not ***subject tort liability **misdemeanor** * an arrest by a police officer may only be made if the misdemeanor was committed in the officier's presence * an arrest by a private person may only be made if there is a "breach of the peace"

Answer 50

* defendant intentionally causes a physical invasion (including causing objects to invade) of someone's land, intent to commit wrongful trespass is not required * mistake of fact is not a defense * anyone in posession of land can bring an action, not just owner

Answer 51

compliance with state/local administrative regulations * evidence as to whether activity is reasonable * not a complete defense coming to the nuisance * courts hesitant to find nuisance if you moved somewhere knowing about that conduct * but NOT complete defense- one factor considered by court in determining whether plaintiff can recover

Answer 52

* **guests and friends in a car**: drivers traditionally liable only for grossly negligent, wanton, or willful misconduct (often under guest statutes" * most jurisdictions apply a general duty of reasonable care standard to the driver of a car

Answer 53

* bailment: a bailee temporarily takes posession of another's (bailor) property * common law: complicated rules regarding standard of care in bailment, like: * bailor must warn a gratuitous bailee of known dangerous conditions * if bailor receives sole benefit, bailee has lesser duty * if bailee receives benefit, he has higher duty of care; even slight negligence can result in liability

Answer 54

standard of care is that of a reasonable person under the same circumstances

Answer 55

**may be liable for injuries to children trespassing on the land if ** 1. an artificial condition exists in a place where the owner knows/has reason to know children are likley to trespass 2. the land posessor knows/has reason to know artificial condition poses an unreasonable risk of death or serious bodily harm 3. the children, because of their age, do not discover or cannot appreciate the danger 4. the utility of maintaining the condition is slight compared to the risk of injury ***and*** 5. the land possessor fails to exercise reasonable care

Answer 56

* maintain safe common areas * warn of hidden dangers * repair hazardous conditions **off-premise victim** * land possessor generally not liable for injuries resulting from natural conditions * ***exception***: trees in urban areas * ***artificial conditions***: must prevent unreasonable risk of harm to persons not on the premises * must exercise reasonable care in conducting activities on the land ## Footnote as an occupier of land, the tenant continues to be liable for injuries arising from conditions within the tenant's control

Answer 57

* **custom**: majority practice within an industry or profession is generally admissible, but not dispositive * **for professionals- lawyers doctors accountants electricians**: custom admissible and disposiitive * **complicance with custom is shield**= defensive * **deviation from custom is swor**d= offensive **physicians**: * same/similar locality * ***modern trend***: national standard * ***informed consent***: patients must give informed consent * doctors must explain risk of medical procedures **drs not required to inform patient if ** * risks commonly known * patient unconscious * patient waives/refuses information * patient is incompetent or * patient would be harmed by disclosure

Answer 58

* **under traditional but-for test** analysis, patient with less than 50% chance of survival could not recover for negligent misdiagnosis because they were likely to die anyway * doctor's negligence was not "but for" cause of patient's death * **under loss of chance**: if physician negligently reduces plaintiff's chance of survival, plaintiff cna recover for the lost chance of recovery * plaintiff cannot recover the entire amount of damages; but can recover the poriton that represents their loss of survival

Answer 59

* purpose is to make plaintiff whole again * sometimes plaintiff can recover for non-economic damages (parasitic damages)

Answer 60

* plaintiff must take steps to mitigate damages * can be considered a duty, but its more limitation on recovery

Answer 61

* medical expenses, both past and future * lost income and reduced earning capacity * pain and suffering, both past and future

Answer 62

* **general rule**: plaintiff may recover the difference between market value of property before and after the injury * cost of repair or replacement value of propertry before and after injury

Answer 63

* traditional rule: benefits/payments to plaintiff form outside sources ARE NOT credited against liability of any tortfeasor * evidence of such payments isnt admissible at trial * modern trend: statutes eliminate/substantially modify collateral source rule to avoid double recovery

Answer 64

* purpose is to punish and deter future conduct * may be available if defendant acted willfully, wantonly, recklessly, or with malice, or if an inherently malicious tort is involved * availability may be limited by statute * US Sup Ct held as matter of due process, punitive damages must be within single-digit ratio of any compensatory damages

Answer 65

1. **wrongful death**: brought by decedent's spouse or representative to recover losses suffered by the spouse or representative as a result of the decedent's death and can include loss of economic support and loss of consortium 2. **survival action**: brought by rep of decedent's estate on behalf of decedent for claims decedent would've had at time of decedent's death, claims include damages resulting from personal injury or property damage

Answer 66

family members can claim loss of consortium or companionship

Answer 67

**wrongful life**: * claimed by a child for defendant's negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect * a few states permit wrongful life action but they limit the child's recovery to the disability **wrongful birth** * claim by parents for defendant's negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect * many states do permit recovery for the medical expenses of labor as well as for pain and suffering * in case of child with disability, may be able to recover damages for the additional medical expenses of caring for that child, and some states you may recover for emotional distress

Answer 68

* **detour**: minor deviation from scope of employment, the employer is vicariously liable * **frolic**: major deviation from the scope of employment, the employer is not liable

Answer 69

* independent contractor will be treated an an employee if: * injured person accepted ic's services based on reasonable belief that the ic was an employee, based on manifestations from the putative employer; and * the ic negligence is a factual cause of harm to one who receives the services, and such harm is within the scope of liability

Answer 70

can be liable for torts of other business partners committed within scope of business's purpose

Answer 71

* **negligent entrustment**: owner directly liable for negligently entrusting vehicle (or dangerous object) to someone who is not in position to care for it * **family purpose doctrine**: owner of automobile may be vicariously liable for tortious act of any fmaily member driving care w/ permission * **owner liability statutes**: owener of automobile may be vicariously liable for tortious acts of anyone driving care with permission

Answer 72

* holds bar owners and bartenders liable for injuries caused when people drink too much alcohol and injure third parties * liability is based on statute and varies by state, especially liability for social hosts * **direct liability** for the server's own negligence in serving the peron * if person goes to multiple bars and each bar on its own serves him enough to get incapacitated, one bar can be liable even though other negligent actors exist; each bar's actions are a "substantial factor" in causing injury * drunk driving is a foreseeable continuing consequence of a bar that violates dram shop laws ## Footnote holds bar or social host liable IN ADDITION to the drunk driver, not INSTEAD OF the drunk driver

Answer 73

* traditionally, state and fed govts immune from tort liability * immunity has been waived by statutes

Answer 74

* expressly waives immunity and allows the federal government to be sued for certain kinds of torts * exceptions (fed govt **maintains** immunity), including enumerated torts, discretionary functions, and traditional governmental activities

Answer 75

* most states have waived immunity to some extent * municipalities generally governed by state tort claims statute * governmental v. proprietary functions * governmental functions (police, courts): immunity applies * proprietary functions (performed by private company, utilities parking) immunity does not apply

Answer 76

* **discretionary functions**: immunity applies * **ministerial functions**: no immunity * **westfall act**: precludes any personal liability on the part of fed employee under state tort law

Answer 77

* largely eliminated; family can be sued for negligently injuring another family member * core parenting activities- immunity still applies

Answer 78

eliminated in most states, though some states still limit recovery

Answer 79

* plaintiff's negligence does not completely bar recovery; it limits the plaintiff's ability to recover * most jurisdictions apply this approach ## Footnote not a defense to intentional torts will reduce plaintiff's recovery even if defendant's conduct is wilful, wanton, reckless

Answer 80

* ones party's negligence imputed to another party * generally disfavored * doesn't apply: 1. child plaintiff whose parent's negligence was contributing cause of her harm, in a suit against 3rd party 2. married plaintiff whose spouse contributorily negligent in causing harm, in suit against 3rd party

Answer 81

**Intrusion by livestock** * Foreseeable intrusion of livestock onto land of another and * Intrusion causes physical harm typical of livestock (eg, consumption of grass) ## Footnote The owner of an animal—other than a dog or cat—that intrudes upon another's land is strictly liable for any reasonably foreseeable harm or damage caused by that intrusion (e.g., consumption of vegetation). However, strict liability does not extend to the owner of the land on which the trespassing animals were kept—unless the landowner also had the right to possess the animals. The exception to this rule for dogs and cats does not apply if the owner knows or has reason to know that the dog or cat is intruding on another's property in a way that has a tendency to cause substantial harm. animals on public road: negligence standard

Answer 82

**Wild animals** * animals that, as a species or class, are not customarily kept in service of humankind * owner's strictly liable for harm arising from animal's dangerous propensity (where person trips over porcupine because he does not see it, no strict liability, this does not stem from dangerous propensity of animal) * if domestic animal, and known to be dangerous and owner knows/has reason to know of dangerous propensity, strict liability * Category of typically undomesticated animal likely to cause personal injury unless restrained (eg, poisonous snake) and * Physical harm caused by animal's abnormal danger (or harm caused from fear of animal; even if animal is restrained) * injuries to licensee/invitee: strictly liable ## Footnote in some jurisdictions viscious watchdog injuries count conflicting restrained animal from different sources...some restrainign it protects from liability...others no

Answer 83

**Abnormally dangerous animals** * Animal with dangerous tendencies other animals in that category typically lack (eg, rabid dog) * Owner/possessor knows or should know of danger and * Physical harm results from that danger (or fear from animal)

Answer 84

**Strict products liability** 1. product was ***defective*** (in manufacture, design, or failure to warn) 2. Defect existed when product left commercial supplier's control **and** 3. defect caused the plaintiff’s injuries when the product was used in an ***intended or reasonably foreseeable way***

Answer 85

* product deviated from its intended design * the product does not conform to the manufacturer's own specification

Answer 86

1. **consumer expectation test**: product defective if its less than safe than ordinary user would expect 2. **risk-utility test**: product defective in design if the risks outweight the benefits; must show reasonable alternative design

Answer 87

* failure to warn of foreseeable risk that is not obvious to an ordinary user * NOT REQUIRED TO WARN OF OBVIOUS RISK (person cleaning furnace on ladder, manufacturer of furnace does not need to warn of danger in cleaning it) * **learned intermediary rule** (often prescription drugs): manufacturer of prescription drugs must warn prescribing physician ***except*** if drugs marketed directly to consumers

Answer 88

courts may allow proof of defect by circumstantial evidence, especially when defect causes product to be destroyed

Answer 89

in defamation action, plaintiff must prove defendant: 1. made a defamatory statement 2. that is of or concerning the plainitff 3. the statement was published to a third party who understoods its defamatory nature **and** 4. damages to plaintiff's reputation results * damages not required where statement was about plaintiff's Commission of a serious crime, Unfitness for a trade or profession, Having a loathsome disease, Severe sexual misconduct (SUCH) * A deceased person cannot legally be defamed; if defamatory statement made after person died, the deceased's estate not have defamation claim

Answer 90

* Language that diminishes respect, esteem, or good will toward the plaintiff, ordeters others from associating with the plaintiff * Falsity—defamatory statements must be false in order to be actionable * An opinion is not actionable as defamation. An opinion that implies a basis in fact is.

Answer 91

A reasonable person must believe that the defamatory language referred to this particular plaintiff. * Statements referring to a group—a member of the group can bring an action only if the group is so small or the context is such that the matter can reasonablt be understood to refer to that member.

Answer 92

* The statement must be communicated to a third party. * A person who repeats a defamatory statement may be liable for defamation. * Federal statute provides that internet service providers and platforms are not publishers for the purposes of defamation.

Answer 93

constitutional limitations will depend on the type of plaintiff and the content of the statement. **Types of plaintiffs** ***Public official***: a person who has substantial responsibility or control over a government office, including a political candidate ***Public figure***: **General purpose public figure**—a person of persuasive power and influence in society **Limited purpose public figure**—a person who thrusts himself into a particular public controversy ***Private individuals*** **Constitutional limitations** ***Public official/public figure***—the plaintiff must prove that the person who made the statement either knew that it was false or acted with reckless disregard for the truth Also called the “actual malice” standard ***Private individual*** Matter of public concern—plaintiff must prove that the statement is false and that the person who made the statement was negligent with respect to the falsehood (should have known the statement was false) Not a matter of public concern—it is unclear whether constitutional limitations apply; a state need not require a plaintiff to prove negligence

Answer 94

* Libel—a written, published, or recorded statement (including TV/radio broadcasts, e-mail, and electronic communications) * Slander—a statement that is false * Damages: * Libel—plaintiff may recover general damages * Slander—the plaintiff must prove special damages (requires a showing of economic loss); exceptions include statements communicating slander per se: 1. Commission of a serious crime 2. Unfitness for a trade or profession 3. Having a loathsome disease 4. Severe sexual misconduct

Answer 95

1. **Private individual and matter of public concern**—plaintiff can recover only actual damages unless she shows actual malice 2. **Private individual but NOT a matter of public concern**—plaintiff may recover general damages, including presumed damages, without proving actual malice.

Answer 96

1. **Truth**—absolute defense; a truthful statement cannot be actionable as defamation. 2. **Consent**—if you consent to the defamation, you cannot sue. 3. **Privileges** * ***Absolute privileges***—the speaker is completely shielded from liability for defamation; includes statements made: * In the course of judicial proceedings; * In the course of legislative proceedings; * Between spouses; and * In required publications by radio and TV (e.g., statements by a political candidate that a station must carry and may not censor) * ***Conditional privilege***—the statement is made in good faith pursuant to some duty or responsibility; includes statements made: * In the interest of the defendant (e.g., defending your reputation); * In the interest of the recipient of the statement; or * Affecting some important public interest

Answer 97

Right of privacy applies to people, not corporations * Typically terminates upon the death of the plaintiff * Invasion of privacy includes four separate causes of action: I FLAP (Intrusion, False Light, Appropriation, Private facts) 1. **Intrusion Upon Seclusion**—defendant intrudes upon the plaintiff’s private affairs, in a manner that is objectionable to a reasonable person (Phone tapping; hacking into medical records; peeping Toms, hidden camera on public sidewalk to record under skirts) 2. **False Light**—defendant * (1) makes public facts about the plaintiff, * (2) that place the plaintiff in a false light, * (3) which would be highly offensive to a reasonable person * (4) publication made with actual malice (reckless disregard of truthfulness) (Writing a story about one person and including a mug shot of someone else.) 3. **Appropriation of the Right to Publicity**—a property-like cause of action when someone * (1) appropriates another’s name or likeness * (2) for the defendant’s advantage * (3) without consent, and * (4) causes injury (must be exploitative, but it need not be commercial, like Utilizing someone’s voice in a commercial) 4. **Public Disclosure of Private Facts** * (1) Defendant publicizes a matter concerning the private life of another; and * (2) The matter publicized: * Is highly offensive to a reasonable person; and * Is not of legitimate concern to the public. * remmeber, here the disclosure is about TRUTHFUL information 5. **Damages**—plaintiff need not prove special damages; emotional or mental distress is sufficient 6. **Defenses** * ***Qualified and absolute privilege***—applicable to “false light” and “public disclosure” claims o Consent—applicable to invasion of privacy torts ## Footnote * ***Truth***—NOT a defense to privacy torts, as opposed to defamation

Answer 98

1. **False Representation** * Must be about a material fact * Can involve deceptive or misleading statements * Can arise through concealing a material fact * Generally, no duty to disclose material facts to other parties; may be an affirmative duty if: - There is a fiduciary relationship; - The other party is likely to be misled by statements the defendant made earlier; or - The defendant is aware that the other party is mistaken about the basic facts of the transaction, and custom suggests that disclosure should be made. 2. **Scienter**—defendant has to know that the representation is false or acted with reckless disregard for its falsehood 3. **Intent**—defendant must intend to induce the plaintiff to act in reliance on the misrepresentation 4. **Causation**—the misrepresentation must have caused the plaintiff to act or refrain from acting 5. **Justifiable Reliance**—reliance is NOT justifiable if the facts are obviously false or it is clear that the defendant was stating an opinion. 6. **Damages** * Plaintiff must prove actual, economic, pecuniary loss * pecuniary damages are NOT available. * Most jurisdictions—recovery is the “benefit of the bargain”: the difference between the actual value received in the transaction and the value that would have been received if the misrepresentation were true (contract-like damages) * Some jurisdictions—allow only out-of-pocket losses (tort-like damages) or the cost of conforming

Answer 99

* Defendant intentionally interferes with a prospective business relationship or benefit between the plaintiff and a third party, in the absence of a contract * The elements are the same as for intentional interference with a contract (without the contract), but the conduct must be wrongful.

Answer 100

* Plaintiff owns information that is a valid trade secret * Plaintiff has taken reasonable precautions to protect it; and * Defendant acquires the secret by improper means

Answer 101

Trade Libel—need not necessarily damage the business’s reputation * Publication; * Of a false or derogatory statement; * With malice; * Relating to the plaintiff’s title to his business, the quality of his business, or the quality of its products; and * Causing special damages as a result of interference with or damage to business relationships

Answer 102

* Publication; * Of a false statement; * Derogatory to the plaintiff’s title; * With malice; * Causing special damages; and * Diminishes value in the eyes of third parties.

Answer 103

A person intentionally and maliciously institutes or pursues a legal action for an improper purpose, without probable cause, and the action is dismissed in favor of the person against whom it was brought.

Answer 104

* The defendant sets in motion a legal procedure in the proper form but has abused it to achieve some ulterior motive. * Some willful act perpetrated in the use of the process that is not proper in the regular conduct of that proceeding * The conduct must also cause damages. ## Footnote Example A local board of education sued a teachers’ union and subpoenaed 87 teachers for a hearing in order to prevent the teachers from walking a picket line during a labor dispute between the union and the board.

Answer 105

each tortfeasor is liable only for his proportionate share of the plaintiff’s damages

mbe torts Flashcards

(130 cards)