Miscellaneous Torts and General considerations (Nuisance)

Question 1

Private Nuisance

Answer 1

Substantial, unreasonable interference with another private individuals’ use or enjoyment of property that he possesses or has a right to possesses

MBE: look for “substantial” or “unreasonable” interference as the right answer choice

Differs from trespass b/c this is interference with USE OR ENJOYMENT, not interference with exclusive possession

Question 2

Substantial Interfernce

Answer 2

offensive, inconvenient, or annoying to the AVERAGE PERSON in the community

NOT substantial if due to P’s mere hypersensitivity or specialized use of property

Question 3

Unreasonable interference

Answer 3

severity of injury must outweigh utility of D’s conduct

aslo could be shown through intent or negligence

Question 4

Public Nuisance

Answer 4

unreasonable interference with the health, safety, or property rights of the community

Ex: using building for prostitution

Private party may recover only if he suffers UNIQUE DAMAGES NOT SUFFERED BY THE PUBLIC at large

Question 5

Legislative Authority

Answer 5

legislative authority for the nuisance activity is not an absolute defense, but persuasive

Question 6

Conduct of others

Answer 6

no one actor is liable for all damage caused by concurrence of his acts and others (pollution)

Question 7

Contributory Negligence

Answer 7

generally not a defense unless P’s case rests on a negligence theory

Question 8

Coming to the nuisance

Answer 8

“come to the nuisance” (e.g. purchasing land next to an already existing nuisance) is generally NOT a bar to P’s action unless she came to the nuisance for the sole purpose of bringing a lawsuit

Question 9

Respondeat Superior

Answer 9

master/employer liable for torts committed by servant/employee within the scope of employment

Question 10

Frolic and Detour

Answer 10

Frolic: minor deviation from employer’s business for own purposes is still acting within the scope of employment

Detour: a substantial deviation in time or geographic area. Cuts off liability

Question 11

Intentional torts and vicarious liability

Answer 11

generally NOT within scope of employment

Exceptions: (1) force authorized in employment (bouncer); (2) friction is generated by the employment (bill collector); or (3) employee is furthering the business of the employer (removing customers forcibly)

Question 12

Negligent Supervision

Answer 12

employers may be liable for their own negligence by negligently selecting or supervising their employees

NOT vicarious liability, its their own liability

Question 13

Independent Contractor

Answer 13

generally NOT liable for tortious acts of independent contractors.

Exceptions: (1) if independent contractor is engaged in inherently dangerous activities; (2) the duty is nondelegable due to public policy considerations

Question 14

partners and joint ventures

Answer 14

vicariously liable for tortious conduct of another partner if committed in the SCOPE AND COURSE of the affairs of the partnership or joint venture

Question 15

Automobile Owner vicarious liability

Answer 15

Generally not vicariously liable for tortious conduct ofa nother driving his automobile

Exceptions in some states: (1) family car doctrine used with owner’s express or implied permission, (2) permissive use w/ consent, (3) negligent entrustment (when owner is liable for own negligence in loaning car to the driver)

Question 16

Dramshop Act

Answer 16

adopted by some states that creates a cause of action in favor of 3rd persons against bar owner for injuries caused by intoxicated patron of a bar

Question 17

Joint and Several Liability

Answer 17

If two or more negligent acts combine and proximately cause an indivisible injury, jointly and severally liable

If injury divisable, D is liable only for identifiable portion

Question 18

Contribution

Answer 18

allows a D who pays more than his share of damages under joint and several liability to claim against other jointly liable parties

NOT ALLOWED for intentional torts

Arises when all D’s have a measurable degree of culpability

Question 19

Indemnity

Answer 19

May arise by (1) contract, (2) vicarious liability situations, (3) strict products liability, and (4) in some J*, where thre is an identifiable difference in degree of fault

Arises when paying D is MUCH LESS responsible than nonpaying D

Question 20

Survival

Answer 20

allow one’s cause of action to survive the death of one or more of the parties

Does not apply to torts invading personal interests (defamation, right to privacy)

Question 21

Wrongful Death

Answer 21

grants recovery for pecuniary injury resulting to the spouse and next of kin from a tort

It is a derivative action on behalf of the deceased. Thus, recovery allowed only to the extent that deceased could have recovered if she had lived