Torts Flashcards
(186 cards)
1
Q
What are the elements of an intentional tort?
A
1) Intent: a) P (purposeful), or b) K (knowledge): D knows consequence is substantially certain 2) Act: voluntary
2
Q
What are the elements of battery?
A
1) Intent. Transferred intent doctrine applies. a) Single-intent rule (majority): Intent wrt contact, not its nature. b) Double-intent rule: Intent wrt contact and its nature. 2) Harmful or offensive contact. Objective standard. No actual harm required. 3) To person of another. Or anything connected. 4) Causation. Direct or indirect.
3
Q
Definition of assault:
A
Act or threat intended to cause apprehension of imminent harm or offensive contact.
4
Q
What are the elements of assault?
A
1) Conduct or other circumstances. Mere words not enough. 2) P must have reasonable apprehension and awareness of D’s act or threat. 3) Imminent threat of harm. 4) Intent. Includes transferred intent.
5
Q
What are the elements of IIED?
A
1) Intent or recklessness: D must intend to cause severe emotional distress or must act with recklessness as to the risk of causing such distress. 2) Extreme and outrageous conduct by D. Beyond human decency, outrageous. 3) Causation. Factual-cause test: no imminence requirement for IIED, though the passage of time might make proving causation more difficult.
6
Q
What are the rules around transferred intent and IIED?
A
Transferred intent DOES NOT apply to IIED when D intended to commit a diff intentional tort (e.g., battery) against a diff V. But transferred intent may apply to IIED if, instead of harming intended person, D’s extreme conduct harms another. If transferred V is intended V’s immediate family, recover with or w/out bodily injury. If other bystander, can recover only if results in bodily injury.
7
Q
What are the rules for public figures/concerns wrt IIED?
A
Public figures: Must show… 1. Falsity and 2. Actual malice Public concern: Private P cannot recover if issue was of public concern.
8
Q
Amount of damages for IIED:
A
Can recover for severe emotional distress, but not beyond reasonable person’s endurance unless D knows of P’s heightened sensitivity?
9
Q
What are the elements of false imprisonment?
A
1) Intent: To confine or restrain another within boundaries with no reasonable means of safe escape. a) Purposeful act or b) Knowing confinement is substantially certain to result. 2) V is conscious of confinement or harmed by it.
10
Q
What are possible methods of confinement for purposes of false imprisonment?
A
- Physical barriers or force 2. Threats 3. Invalid use of legal authority 4. Duress 5. Failure to provide means of escape
11
Q
Does the time of imprisonment matter for purposes of false imprisonment?
A
No. But can affect amount of damages.
12
Q
What kind of damages must be shown for false imprisonment claim?
A
None. Except actual damages necessary if P was unaware of the confinement.
13
Q
What is shopkeeper’s privilege wrt false imprisonment?
A
Shopkeeper has right to reasonable detention of suspected shoplifter.
14
Q
What are the diff defenses to intentional torts involving personal injury?
A
1) Consent 2) Self-defense 3) Defense of others 4) Defense of prop 5) Parental discipline 6) Privilege of arrest
15
Q
What kinds of consent exist for purposes of mounting a defense against an intentional tort claim? When is consent invalid?
A
Express. Invalidated by duress, fraud as to essential matter, and mistakes caused or knowingly utilized by D. Implied. By custom/usage, emergency situations, consensual combat/athletics. Consent invalid if lack of capacity (e.g., youth, intox, incompetence).
16
Q
What kind of force is ok for self-defense? When is deadly force ok? Does a reasonable mistake invalidate this defense?
A
Reasonable force proportionate to anticipated harm. Deadly force is ok only if reasonable belief of serious bodily injury/death. Reasonable mistake does not invalidate this defense.
When a person using force in self-defense unintentionally harms an innocent third party, the person is not liable for injuries to the third party that occur while the person is acting in self-defense, so long as those injuries were accidental, rather than deliberate, and the person was not negligent with respect to the third party.
17
Q
Is there a duty to retreat (instead of self-defense)?
A
Majority: No?
18
Q
Can initial aggressors be entitled to self-defense claim?
A
Generally no
19
Q
Is someone using self-defense liable for injuries to bystanders?
A
No, so long as injuries were accidental and not negligent.
20
Q
What are the rules about defense of others?
A
Same defense rules as for self.
21
Q
What are the rules about defense of prop?
A
Reasonable force allowed if reasonable to prevent tortious harm to prop. But no deadly force allowed, including deadly traps. Exception: Visitor acting under necessity. Generally not permitted to repossess land/realty?
22
Q
What are the rules about parental discipline?
A
Reasonable force/confinement ok considering age of child and gravity of behavior.
23
Q
Do educators have the same privilege of parental discipline as parents?
A
Yes, unless parent restricts the privilege.
24
Q
What are the rules around privilege of arrest?
A
Felonies: 1. Private individuals: Fine if crime was actually committed and reasonable to suspect that person arrested committed it. Reasonable mistake only a defense as to ID. 2. Police: Ok if reasonable to believe it was committed and to suspect the person arrested. So can also be mistaken about commission of crime. Misdemeanors: 1. Private and police: Only ok if committed in presence of arresting party. 2. Private: Ok only if it was breach of peace.
25
What is trespass to chattels/tangible personal prop and its requirements?
Intentional interference with P's right of possession by either dispossessing, using, or intermeddling with P's chattel. Intent req: Only need intent to do the act (not trespass). Transferred intent applies.
26
Is mistake of law or fact a defense to trespass to chattels?
No
27
What kind of damages are awarded in trespass to chattel cases?
Actual and loss of use. No loss of use damages without dispossession.
28
What are the remedies for trespass to chattel?
1. Compensation for diminished value or 2. Cost of repair
29
What are the elements of conversion?
1) Intent: Must only intend to commit the act that interferes (intent to damage not necessary). Transferred intent does NOT apply; must intend to control the particular prop. 2) Interference: With P's right of possession. 3) Seriousness: So serious that it deprives P of use of the chattel. Based on duration/extent, intent to assert a right, D's lack of good faith, extent of harm and P's inconvenience.
30
Is mistake a defense for conversion?
No
31
What damages are available for conversion?
1. Full value of prop, or 2. Replevin: A suit to recover personal property wrongfully obtained by another.
32
What are the elements of trespass to land?
PIP pip: 1) Proper P: Anyone in actual or constructive possession of land. 2) Intent: To enter land or cause physical invasion (not to trespass specifically). Transferred intent applies. 3) Physical invasion of prop. (Constructive possession: The power to control an item without physical possession of it. Ex: When a buyer has received title to property but not yet physically occupied it.)
33
What are the rules about the necessity defense to trespass to land (private vs. public)?
Private: Qualified privilege for limited number of people to enter or remain on land to protect own person/prop from serious harm. Not liable for trespass but resp for actual damages. Public: Unqualified/absolute priv to avert public disaster. Not liable for damage if actions reasonable or reasonable belief that necessity existed, even if initial entry not necessary.
34
What is private nuisance? Define the elements.
Definition: Substantial and unreasonable interference with another's use or enjoyment of his land. 1. Interference: Must be intentional, reckless, negligent, or result of abnormally dangerous conduct. 2. Substantial: Offensive to average reasonable person in the community (objective standard). 3. Unreasonable: Injury caused outweighs usefulness of action.
35
What are defenses to private/public nuisance?
1. Regulatory compliance. Incomplete defense. Admissible but not determinative.
2. Coming to the nuisance. Does not entitle D to judgment as matter of law but jury may consider. It is generally not a defense that the plaintiff "came to the nuisance" by purchasing property in the vicinity of the defendant's premises with knowledge of the nuisance operated by the defendant.
36
What is a public nuisance?
Unreasonable interference with right common to the general public. P must suffer harm different in kind from general public.
37
What are the remedies for nuisance?
1. Damages 2. Injunctive relief. Balance the equities (where competing interest are weighed against each other in an effort to determine the most appropriate outcome of a dispute).
38
What are the rules around abatement for private/public nuisances?
Private: Reasonable force permitted to abate. Must give D notice of the nuisance and D must refuse to act. Public: Absent unique injury, public nuisance may be abated only by public authority.
39
What is negligence?
Failure to exercise care a reasonable person would exercise. Breach of duty to prevent foreseeable risk of harm to anyone in P's position.
40
What are the elements of negligence?
1) Duty: obligation to protect against unreasonable risk of injury 2) Breach: failure to meet that obligation 3) Causation: close causal connection btw action and injury 4) Damages: loss suffered
41
Describe the duty element for negligence
Owed to all foreseeable persons who may be injured by D's failure to meet reasonable standard of care. Foreseeability of harm to another sufficient to create general duty to act with reasonable care.
42
Is there a duty to act?
Generally no. Exceptions: 1) Assumption of duty 2) Placing another in peril 3) By contract 4) By authority 5) By relationship (e.g., employer-employee, parent-child, common carrier-passenger) 6) By statute imposing obligation to act
43
What is the rule around foreseeability of harm to P wrt duty element of negligence?
Palsgraf/Cardozo majority rule: D only liable to Ps within zone of foreseeable harm. Minority/Andrews rule: If D can foresee harm to anyone resulting from his neg, D owed duty to everyone harmed (foreseeable or not).
44
Is D liable for negligently putting rescuer in danger?
Yes. But can apply comparative resp if rescuers' efforts are unreasonable. And firefighter rule: Emergency pros barred from recovery if injury results from risk of the job.
45
Is there a duty of care to fetuses?
Yes if viable at time of injury.
46
What is the standard of care for negligence?
Reasonably prudent person. Objective standard.
47
What kind of characteristics are considered in determining reasonableness (for neg)?
Physical, but not mental
48
Is a voluntarily intoxicated person held to a diff standard than a sober person for neg?
No, held to same standard
49
What standard is a child held to for neg purposes?
Reasonable child of similar age, intelligence, and experience.
But child engaged in high-risk adult activity held to adult standard.
Children under age of 5 generally found incapable of neg conduct.
50
What standard of care is a common carrier held to for negligence? (Planes, buses, trains)
Majority/CL??: Highest duty of care consistent with practical operation of the business.
3rd restatement/majority??: Reasonable care toward their passengers and guests.
51
What standard of care is an innkeeper held to for negligence?
Majority: Ordinary neg. Reasonable care toward guests.
CL: Slight neg? Highest duty of care consistent with the practical operation of the business.
52
What standard of care are automobile drivers held to for negligence?
Majority: Absent guest statute, ordinary care to guests as well as passengers.
Minority: Absent guest statute, refrain from wanton & willful misconduct??
Guest statute: Wanton & willful misconduct??
53
What standard of care is a bailor held to for neg?
Bailor = One who gives possession of personal property to another, a bailee, for its care or safekeeping.
Gratuitous: Duty to warn bailee of known dangerous defects
Compensated: Duty to warn bailee of defects that are known or should have been known by the bailor had he used reasonable diligence
54
What standard of care is a bailee held to for neg?
Gratuitous: Liable only for gross neg
Compensated: Must exercise extraordinary care
Mutual benefit: Must take reasonable care
55
What standard of care is a seller of real prop held to for neg? What duties do they have?
Duty to disclose known, concealed, unreasonably dangerous conditions.
Liability to third parties continues until buyer has a reasonable opp to discover and remedy defect.
56
What is the standard of care for possessors of land towards trespassers?
Traditional/majority: Refrain from willful, wanton, reckless or intentional misconduct towards trespassers.
* No "spring-guns."
* Wrt discovered stuff: warn or protect against concealed, dangerous, artificial conditions
* Wrt undiscovered stuff: generally no duty unless owner should reasonably know that trespassers are entering land, then same duty owed a licensee
* Wrt attractive nuisance: Liable for injuries to trespassing children if artificial condition poses unreasonable risk of serious bodily injury, children cannot appreciate the danger, burden of eliminating danger slight compared to risk of harm, and owner fails to exercise reasonable care to protect children.
Modern/restatement (minority): Reasonable care under all circs, but fact of trespass considered by jury in determining reasonable care.
* Wrt flagrant trespassor: Duty not to act in intentional, willful, or wanton manner causing physical harm is only duty owed
57
What is the standard of care for possessors of land towards invitees?
Traditional/majority: Reasonable care to inspect, discover dangerous conditions, and protect invitee from them. Non-delegable. Duty does not extend beyond scope of invitation.
Recreational land use (some jx): Possessor who opens land to public for recreation generally not liable for injuries sustained by recreational land users unless
1. Charges fee or
2. Acts willfully, maliciously, or with gross neg.
Modern/restatement (minority): Reasonable care under all circs.
58
What is the standard of care for possessors of land towards licensees?
Traditional/majority: Warn of concealed dangers that are known or should be obvious. Use reasonable care in conducting activities on the land. No duty to inspect.
Modern/restatement (minority): Reasonable care under all circs.
59
What is an invitee?
Someone who is invited to enter for purposes for which the land is held open or for business purposes
60
What is a licensee?
Enters land of another with permission or privilege (ex: social guest, emergency personnel)
61
What is the standard of care for landlords for neg?
Landlord liable for injuries occurring:
1. In common areas resulting from hidden dangers about which landlord fails to warn,
2. On premises leased for public use,
3. As a result of a hazard caused by neg repair, or
4. Involving a hazard landlord agreed to repair
62
What is the standard of care for tenants for neg?
Liable for injuries to third parties due to conditions within their control.
63
What is the standard of care for possessors of land towards off-premises victims?
No duty for harm by natural condition. Exception: rotting trees in urban areas.
Duty to prevent unreasonable risk of harm caused by artificial condition.
64
What is the standard of proof for a breach or violation of the duty of care wrt negligence (detailed)?
Preponderance of the evidence: Greater probability than not that D failed to meet standard of care, as shown by custom/usage, statutory violation, or res ipsa loquitur.
P must show failure was proximate cause of injury and P suffered damages.
65
How do you determine whether there has been a breach/violation of the duty of care for negligence?
Traditional: Compare D's conduct with what reasonably prudent person would do under the circs. Objective.
Modern/restatement (cost-benefit analysis): Consider:
1. Foreseeable likelihood that D's conduct would cause harm,
2. Foreseeable severity of resulting harm, and
3. D's burden in avoiding the harm.
66
Is evidence of custom admissible for determining whether there has been a breach/violation of duty of care for neg?
Evidence of custom is generally admissible but not conclusive in establishing proper standard of care.
67
What standard wrt custom is used for professionals (not physicians) wrt negligence? Is it dispositive? What about specialists? How is the customary standard of care established?
Expected to show same skill, knowledge, and care as ordinary practitioner in same community. Deviation or compliance with custom is dispositive for breach.
Specialists may be held to higher standard.
Expert must generally establish the standard of care unless neg is so obvious that it would be apparent to a layperson. Ex: surgeon amputating wrong leg.
68
What custom is used for physicians wrt negligence?
Majority: national standard (including specialists)
Minority/traditional rule: "same or similar locale" standard
69
What is the rule about informed consent requirement in medical setting for negligence?
Failure to comply with informed consent requirement is med neg (malpractice) unless:
1. risk is commonly known,
2. patient unconscious,
3. patient waives or is incompetent, or
4. disclosure too harmful
70
What are the elements of negligence per se?
1. Crim or regulatory statute imposes a specific duty for protection of others
2. D neglects to perform the duty
3. D liable to anyone in the class of people intended to be protected by statute
4. For harms of the type the statute was intended to protect against
5. Proximate causation?
71
Defenses to neg per se
1. Compliance impossible or more dangerous than noncompliance
2. Violation reasonable under the circs
3. Statutory vagueness or ambiguity
4. Compliance with fed reg preempts CL tort action?
72
Res ipsa loquitur definition
Under certain circumstances, the very fact that an accident occurred leads to an inference that the accident was caused by negligence.
73
Res ipsa loquitur elements
1. P's harm would not have occurred if D had used ordinary care. P need not conclusively exclude all other possible explanations.
2. P not resp for injury (loosely applied in most comparative fault jx).
3. P's injury under D's exclusive control.
* Modern trend: generous interp of exclusivity.
* Many jx ignore exclusivity for product liability if manufacturer wrapped package or clear that neg took place during production.
* If med personnel had access to P during surgery in malpractice claim, some jx presume each D has breached duty unless each D rebuts.
74
What are the types of causation needed to establish neg?
Cause in fact/actual cause + proximate cause/scope of liability
75
What is cause in fact/actual cause for neg?
But for D's act/omission, injury wouldn't have occurred.
76
What is joint and several liability
May apply if 2+ Ds are each a factual cause of indivisible injury or Ds acted with common plan or design. Default for MBE. Each D found liable for single indivisible harm liable for the entire harm. P could recover all from one, then that D can recover proportionate share from other D.
77
What is loss of chance?
Applies in some jx if P's chance of recovery was \<50% before D's conduct. Can recover percentage of total damages equal to diff btw chance of recovery before and after D's neg.
78
What is the rule around proximate cause/scope of liability for neg?
Majority: D liable for reasonably foreseeable consequences of a foreseeable type. P can recover if P was foreseeable V of D's conduct. Minority: D liable for all direct consequences. P can recover if P's harm was within scope of liability of D's conduct.
79
Does the extent of damages need to be foreseeable for proximate cause for negligence?
No. Eggshell skull rule: Extend of damages need not be foreseeable.
80
What is an intervening cause v. superseding cause?
Intervening: A cause of P's harm that occurs after D's tortious act. Superseding: Breaks the chain of proximate causation. D not liable. An unforeseeable intervening cause is a superseding cause ("act of God"; crim act; intentional tort of third party). Criminal acts of third parties are generally regarded as unforeseeable superseding causes and therefore break the chain of causation between the original defendant’s negligence and the plaintiff’s harm. However, if the duty breached by the defendant is one of failing to use reasonable care to protect the plaintiff from a criminal act and the plaintiff is harmed by that criminal act, then the original defendant remains liable. Negligent intervening acts are foreseeable (medical malpractice) and may lead to joint and several liability.
81
What kind of damages are available in a negligence suit?
Actual: Must prove actual injury (personal injury or prop damage), not just econ loss. Nominal damages and attorney's fees not permitted in neg actions. Parasitic damages: if tort caused physical harm, may add emotional distress damages (e.g., NIED claims). Compensatory damages: Make V whole again. Punitive damages: If clear/convincing evidence, malicious, willful & wanton, or reckless behavior. Can include torts that inherently involve this state of mind or behavior. Generally cannot exceed single digit ratio to compensatory damages.
82
Does the extent of damages need to be foreseeable in a negligence suit?
No
83
Is there a duty to mitigate for negligence?
Not a duty to D, but may reduce P's recovery
84
What kind of remedies available in a personal injury negligence lawsuit?
Past/future pain and suffering, med expenses, lost wages/reduced future earnings. Eggshell skull rule applies.
85
What kind of remedies available for prop damage in a negligence lawsuit?
Generally, the diff btw fair market value before injury and immediately after. Most courts allow cost of repair as alternative if it does not exceed value of prop, or cost of replacement for household items.
86
What is the collateral source rule?
Traditional: Benefits from outside sources (P's insurance) not credited against D's liability. Payment by D's insurer are not from a collateral source and are credited against D's liability. Modern trend: Statutes have eliminated or substantially modified rule.
87
What is the rule for negligent infliction of emotional distress (NIED)?
A plaintiff can recover for negligent infliction of emotional distress from a defendant whose tortious conduct placed the plaintiff in harm’s way if the plaintiff demonstrates that: (i) he was within the “zone of danger” of the threatened physical impact—that he feared for his own safety because of the defendant’s negligence; and (ii) the threat of physical impact caused emotional distress.
In order for a person who is not within the zone of danger to recover under a theory of negligent infliction of emotional distress, she must (i) be closely related to the person injured by the defendant, (ii) be present at the scene of the injury, and (iii) personally observe (or otherwise perceive) the injury.
Under the majority rule, damages for negligent infliction of emotional distress without physical symptoms are not recoverable; however, an exception exists for the negligent mishandling of a corpse--if there is a special relationship, even without threat of physical impact or physical symptoms.
Minority: Allow recovery without physical manifestation of harm. P outside zone of danger can recover if i) closely related to person injured by D; ii) present at the scene; ii) and personally observed or perceived the injury.
88
Is pure economic loss recoverable in a neg suit?
No, only recoverable with related personal injury or prop damage.
89
What can a P recover in a wrongful death suit?
Loss of support, companionship, society, and affection, but not pain/suffering of P. Limited to what decedent could recover.
90
What is a survival action and what can P recover?
Survival statute may permit rep of decedent's estate to pursue any claim decedent would have had at time of death. May include pain/suffering. If survival and wrongful death actions permitted, no double recovery allowed.
91
What is recoverable in a suit for loss arising from injury to family member?
Loss of consortium for spouses. Loss of services for injured child.
92
What is a wrongful life suit and what are the damages for it?
Minority allows action by child for failure to perform contraceptive procedure or diagnose congenital defect. Damage limited to those attributable to disability.
93
What is a wrongful brith suit and what are the damages?
If birth due to failed contraceptive procedure or diagnosis of defect, many states permit parents to recover med expenses for caring for disabled child. Some states allow mother to recover pain/suffering damages and med expenses for labor.
94
When is employer vicariously liable for employee neg?
When the tort is within the scope of employment--acts employee is employed to do or acts intended to profit or benefit employer. Employer not liable for intentional torts unless force inherent to job (i.e. bouncer) or authorized to act/speak for employer and position provided opp for the tort (i.e., fraudulent contract as employer's agent).
95
What is a detour vs. a frolic?
For vicarious liability, employer may be liable for detour (minor deviation from scope) but not frolic (unauthorized and sub deviation).
96
What is an employer directly liable for (as opposed to vicariously)?
Neg hiring, training, supervision, or entrustment of employee
97
What is the rule for vicarious liability btw employer and independent contractor?
Employer generally not liable for IC's torts except for: 1) neg selection of IC (primary neg, not vicarious) 2) non-delegable duty, or 3) IC acting under apparent agency
98
When are business partners vicariously liable?
Liable for tortious conduct of each other if committed within scope of business purposes
99
When are car owners vicariously liable?
When neg entrustment of car or other object with potential harm (if D knows/should know of driver's or user's neg propensities). Family purposes doctrine: D liable for fam members driving with permission. Owner liability statutes: D liable for anyone driving with permission.
100
When is a parent vicariously liable for their child?
Only if child acted as parent's agent, state statute applies, or if assumed liability only child's driver's license application for neg driving??' Primarily neg if fails to exercise reasonable care to prevent minor child from intentionally or neg harming third party if parent i) can control child and ii) knows or should know necessity and opp for exercising such control.
101
What is dram-shop liability?
Many states recognize cause of action against seller of intoxicating beverages when third party is subsequently injured due to buyer's intox. Most states only allow liability if buyer was minor or intoxicated at time of sale. Many states extend to social hosts for injuries to intox guests and/or third parties.
102
What immunity does the fed gov have wrt negligence?
Traditionally immune, but now immunity is limited by FTCA. Sovereign immunity not waived for enumerated torts, discretionary functions, gov contractor product liability (unless failed to warn or conform with gov specifications), and most traditional gov activities. Immunity waived for intentional torts committed by law enforcement officers.
103
What immunity do state govs have wrt negligence?
Most states have waived sovereign immunity, at least partially. Municipalities and local gov agencies usually governed by state tort claims acts--immunity traditionally attached only to gov functions. Public duty rule: no liability to any one citizen for municipality's failure to fulfill a duty that owed to public at large, unless special relationship creates special rule.
104
What is the public duty rule?
No liability to any one citizen for municipality's failure to fulfill a duty that owed to public at large, unless special relationship creates special rule.
105
What immunity do gov officials have wrt neg?
Immunity applies if it is performing discretionary functions entrusted by law unless acts with malice or improper purpose. No tort immunity for carrying out ministerial acts. Absolute immunity from personal liability for legislators performing their leg functions, judges performing their judicial functions, prosecutors.
106
What immunity do family members have wrt neg?
Interspousal immunity extinguished in most states. Parent-child immunity generally limited to core parenting activities.
107
What immunity to charities have wrt neg??
Eliminated or capped in most states.
108
What is pure several liability?
Each D liable only for his proportionate share. Under pure several liability, each tortfeasor is liable only for his proportionate share of the plaintiff’s damages.
109
What is satisfaction & release?
No double recovery
110
What is the concept fo contribution wrt negligence?
Tortfeasor who paid more than fair share of common liability generally can recover excess of fair share from joint tortfeasor. Can recover no more than the. joint tortfeasor would be liable to P for. Not generally available for intentional tortfeasors.
111
What is the concept of indemnification wrt negligence?
Shifting of loss from vicarious liable tortfeasor to primarily resp party. May be based on agreement, equity, subsequent additional harm, or strict product liability.
112
What are the defenses to negligene?
1) Contributory fault 2) Comparative fault 3) Assumption of the risk
113
What is the rule for contributory fault?
CL/traditional: P's fault is complete bar to recovery. Not a defense to an intentional tort, gross neg, or recklessness. Defense is unavailable when the negligence is not the cause of the accident. Last clear chance rule abolished in most jx.
114
What is the last clear chance rule?
Abolished in most jx. P may mitigate legal effect of own fault if D has last clear chance to avoid injuring P. D's actual knowledge of P's in attention required for liability to inattentive P. D liable to helpless P if knew or should have known P's helpless peril.
115
What is the rule for pure comparative fault?
Not a complete bar to recovery. P's damages reduced by proportion that P's fault bears to total harm. Bar's default jx.
116
What is the rule for partial comparative fault?
If P is less at fault than Ds combined, P's recovery reduced by percentage of fault. If P is more at fault than Ds combined, P recovers nothing. If P and D equally at fault, P recovers 50% of his total damages (except in minority jx where P recovers nothing). Not a defense for intentional torts.
117
What are the rules around assumption of the risk?
Traditionally, unreasonably proceeding in face of known, specific risk affects recovery. Contributory neg jx: no recovery Comparative fault jx: merely reduces recovery Beware exculpatory clauses in contracts.
118
When are exculpatory clauses in contracts unenforceable?
If i) disclaims liability for reckless or wanton misconduct or gross neg; ii) gross disparity of bargaining power; iii) exculpated party offers services of great important or practical necessity to public; iv) subject to typical contractual defenses; or v) against public policy. Generally, common carriers, innkeepers and employers cannot disclaim liability for neg.
119
What activities are subject to strict liability?
DAD: 1) Dangerous activities 2) Animals 3) Defective/dangerous products
120
What are the elements of strict liability?
1) Absolute duty to make P's person or prop safe 2) Actual & proximate causation 3) Damages
121
What defines an abnormally dangerous activity?
Not commonly engaged in. Inherent, foreseeable, and highly significant risk of harm (look to gravity of harm, inappropriateness of place, limited value of activity).
122
What is the scope of liability for a tort resulting from an abnormally dangerous activity?
Limited to harm expected from the activity.
123
How is wild animal defined?
2nd restatement: all animals not by custom devoted to service of humankind where being kept 3rd restatement: excludes animals that pose no obvious risk of causing sub personal injury
124
What is the strict liability rule around wild animals?
Owner/possessor is strictly liable for harm done by wild animal despite owner's precautions to prevent harm, as long as harm arises from dangerous propensity characteristic of animal or about which owner has reason to know. Liable for injuries caused by P's fearful reaction to unrestrained wild animal.
While the possessor of a wild animal is generally strictly liable for the injuries caused by the animal, strict liability generally does not apply to injuries that do not result from the dangerous propensities of the animal.
exception to strict liability for a possessor of a wild animal applies only to a trespasser who is injured by the wild animal on the possessor’s property
125
What is the strict liability rule around abnormally dangerous animals (not wild)?
Owner/possessor strictly liable for injuries if knows or has reason to know of dangerous propensities abnormal for animal's category or species and harm results.
126
What is the strict liability rule around trespassing household pets?
Owner/possessor strictly liable for reasonably foreseeable damage caused by them if owner knows or has reason to know that pet is intruding on another's prop in a way that has a tendency to cause sub harm??? Gen neg standard applies if pet strays onto public road and contributes to accident there.
127
Defenses to strict liability
Comparative fault jx: neg may reduce P's recovery Assumption of risk/knowing contributory neg: bars recovery Statutory privilege: no strict liability for D performing essential public service Contributory neg jx: not a defense, does not bar recovery Trespassers: prop possessor not strictly liable for injuries inflicted by his animals against trespasser, except in some jx for injuries inflicted by a vicious watchdog.
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What are the elements of products liability negligence?
Duty: reasonable care owed to any foreseeable P by commercial manufacturer, distributor, retailer, or seller Breach: failure to exercise reasonable care in inspection/sale of product (i.e., defect would have been discovered if D was not neg) Causation: factual and proximate Damages: actual injury/prop damage, not pure econ los
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What are defenses to products liability neg?
contributory/comparative neg and assumption of risk
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What are the elements for products liability strict liability?
1) Product was defective (in manufacture, design, or failure to warn) - res ipsa may apply 2) Defect existed when it left D's control 3) Defect caused P's injury when product was used in a reasonably foreseeable way
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What is a manufacturing defect?
product does not conform to D's own specifications
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What is a design defect?
Consumer expectation test: dangerous beyond expectation of ordinary consumer Risk-utility test: risks \> benefits and reasonable alternative design (econ feasible) available; failure to use that design rendered product unreasonably unsafe
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What is a failure to warn defect?
i) foreseeable risk of harm, ii) not obvious to ordinary user of product, and iii) risks could have been reduced or avoided with reasonable instructions or warnings
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What is the learned-intermediary rule?
Manufacturer of prescription drug or med device satisfies duty to warn by warning prescribing physician of problems with drug/device, unless i) manufacturer knows drug/device will be dispensed without personal intervention or eval of a healthcare provider, or ii) in the case of birth control pills
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Does a P in a strict products liability case need to be in privity with D?
No, anyone foreseeably injured may recover
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Defendant requirements for strict products liability
Must be in the business of selling (includes manufacturer, distributor, and retail seller). Casual sellers, auctioneers, P's employer, and service providers generally not strictly liably. (Doctors and hospitals are treated as the provider of a service, rather than goods, even where the defective product is implanted in a patient.) As long as the seller is in the business of selling the product, she is subject to strict liability for a defective product, even if she was not responsible for the defect in any way and even when the product is not purchased directly from her. P can basically sue anyone in the chain of production, regardless of their neg?
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If D provides both products and services, generally strictly liable if what...
If product is consumed, but not if product is only used (i.e., hospital not generally liable as a distributor of defective implants). (Doctors and hospitals are treated as the provider of a service, rather than goods, even where the defective product is implanted in a patient.)
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Retail distributors of a prescription drug/device may be liable for...
own negligence, but only strict liability for manufacturing defects
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What kind of damages in a strict product liability case?
Personal injury or prop damage. Pure economic loss must be brought under warranty action. Possible market share liability.
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What is market share liability?
Under the market share liability doctrine, if the plaintiff’s injuries are caused by a fungible product and it is impossible to identify which defendant placed the harmful product into the market, the jury can apportion liability based on each defendant’s share of the market.
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What are defenses to strict product liability?
1. Comparative fault (will reduce recovery per majority) 2. Contributory neg (but P's neg not a defense if P misused product in reasonably foreseeable way or neg failed to discover defect) 3. Assumption of risk: complete bar to recovery in contributory neg jx; in most comparative fault jx only reduces recovery 4. Unforeseeable misuse, alteration or mod: in most contributory neg states precludes; in most comparative fault states reduces recovery 5. Compliance with gov safety standards: not conclusive but may be considered 6. State of the art standard: product conforms with level of scientific, tech, safety knowledge existing and reasonably feasible when distributed; only bars recovery in some states; n/a to manufacturing defect claims 7. Statute of limitations 8. Unforeseeable intervening causes
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When does SOL start running in a strict products liability case?
When P discovers, or should discover with reasonable care, his injury and its connection to product.
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What is an implied warranty of merchantability
The implied warranty of merchantability warrants that the product being sold is generally acceptable and reasonably fit for the ordinary purposes for which it is being sold. Any product that fails to live up to this warranty constitutes a breach, regardless of any fault by the defendant.
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What is an implied warranty of fitness
Product fit for particular purpose. Seller must know purpose and buyer must rely on seller's skill or judgment in supplying product.
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What are the diff privity requirements?
Majority: allows only purchaser or member of family/household to recover for personal injury (not prop damage or pure econ loss) Alternative B: Anyone reasonably expected to use, consume, or be affected by the product may recover for personal injury Alternative C: B + recovery for prop damage and econ loss
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What are the damages for a breach of an implied warranty for a product liability case?
Personal injury; prop damage; pure econ loss?
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What is an express warrant wrt product liability, and what is the consequence of violating one?
Affirmation of fact or a promise about product. Part of basis of bargain. Seller liable for any breach of express warranty, regardless of fault.
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Defenses to breach of warranty for product liability:
1. Disclaimers. For consumer goods, a limitation on consequential damages for personal injury is unconscionable. (Consequential damages arise from special circumstances peculiar to the injured party.) For express warranties, valid only if consistent with warranty, which it's usually not. 2. Comparative fault and assumption of the risk. Reduces recovery? 3. Contributory neg. Not a bar except when it overlaps with assumption of the risk. 4. Misuse. Majority: Prevents recovery under implied warranty of merchantability when product is warranted to be fit for ordinary purposes. Claims generally fail if P fails to provide seller with notice of breach of warranty within statutorily required time period or a reasonable period.
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Defamation elements
1) Defamatory language: diminishing respect, esteem or goodwill toward P 2) Of or concerning P: reasonable third party believes language refers to particular P 3) Publication: international or neg comms to third party who understands defamatory nature; republication identifying original speaker and uncertainty as to accuracy of statement still may satisfy this element 4) Falsity: if public concern or P is public figure, must prove defamatory statement is false 5) Fault: for public figure, actual malice; for private figure/public concern, D acted with fault, either neg or actual malice; for private figure/not public concern, at least neg
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What is actual malice for defamation purposes?
D knows of falsity/reckless disregard for truth
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What is libel?
A defamatory statement that is articulated in a fixed written or visual medium.
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What damages involved in libel case?
General damages that compensate P for harm to rep (generally includes radio and TV) CL allowed recovery for presumed damages Libel per quod
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What is libel per quod?
If defamatory statement requires proof of extrinsic facts to show it is defamatory, P must prove either special damages or a category of slander per se
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What is slander?
A false statement spoken about a person that the speaker knew or reasonably should have known was false that harms the person’s reputation as a result of the statement being heard by third parties.
Spoken word, gesture or any form other than libel
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What damages involved in slander case?
Special damages required. Third party heard comments and acted adversely to P? Usually, but not always, econ loss.
(Special damages = The natural, probable, and foreseeable result of a breach of contract.)
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What is slander per se and the damages involved?
No special damages required if accused of committing a crime, conduct that reflects poorly on P's fitness to conduct trade or profession, loathsome disease, sexual misconduct. General damages then permitted as parasitic damages (i.e. NIED).
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What damages can a private person who engaged in defamation/libel/slander get if it was a matter of public concern?
Actual damages but if actual malice proven, then punitive or presumed damages also permitted
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What damages can a private person who engaged in defamation/libel/slander get if it was not a matter of public concern?
General, including presumed, damages without proving actual malice
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What are defenses to defamation/libel/slander
1. Truth: compete defense 2. Consent: cannot exceed scope 3. Absolute priv: for remarks: i) during judicial/leg proceedings (generally must be made by participants and related to proceedings); ii) by legislators or fed/state exec officials in course of official duties; iii) btw spouses; or iv) in required publications 4. Qualified priv: affecting important public interest, in the interest of D or third party; priv lost if abused; burden on D to prove priv exists; burden on P to prove priv abused and lost.
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What is intrusion upon seclusion?
D's act of intrusion into P's private affairs. Highly offensive to a reasonable person (no publication required). Applies only to individuals and terminates upon death.
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What is false light?
Publication of facts about P or attributing views/actions to P that place him in false light objectionable to a reasonable person under circs. Truth not always a defense. In matters of public interest, P must show malice. Applies only to individuals and terminates upon death.
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What is misappropriation?
Unauthorized use of P's pic or name for D's advantage. Lack of consent. Injury. Applies only to individuals and terminates upon death, though some states allow action to survive death.
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What is public disclosure of private facts?
public disclosure of private facts (even if true) about P that would be highly offensive to a reasonable person and is not of legitimate concern to the public; in tension with First Amendment—disfavored tort. Applies only to individuals and terminates upon death.
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What are the invasion of privacy torts?
IFLAP: Intrusion; False light; Appropriation; Private facts
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What are the damages for invasion of privacy torts?
proof of emotional/mental distress enough, special damages not required
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What are defenses to the invasion of privacy torts?
1. absolute/qualified privilege for false light/public disclosure 2. consent applies to all types of privacy torts, but any mistake re: consent negates defense 3. truth not a defense
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Elements/damages for intentional misrep
1. False representation of material fact: generally no duty to disclose 2. Scienter: knowledge or reckless disregard of truth 3. Intent to induce P to act or refrain in reliance on misrepresentation 4. Causation: actual reliance 5. Justifiable reliance: not justifiable if statement obviously false or lay opinion 6. Damages: actual economic loss/consequential damages; no nominal damages; no damages for emotional distress
In a majority of jurisdictions, the measure of recovery in misrepresentation cases is the “benefit of the bargain” rule, or the difference between the actual value received in the transaction and the value that would have been received if the misrepresentation were true.
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Elements of neg misrep
1. D (accounting firm or other supplier of commercial information) 2. Provides false information to P as a result of D’s negligence in the course of D’s business or profession 3. P justifiably relies on the information and incurs pecuniary damages as a result. P must be in contractual relationship with D or D knows P is a member of a limited group for whose benefit the information is supplied. Information must be relied on in a transaction that D intends to influence or knows recipient intends to 5. Damages—reliance and consequential
(Consequential/special/indirect damages = Damages that arise not from the ordinary course of events due to the breach, but from special circumstances peculiar to the injured party.)
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Defenses for neg misrep
standard negligence defenses
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Elements of intentional interference with contract
D knew of valid contractual relationship between P and third party. D intentionally interfered with contract in a way that substantially exceeds fair competition and free expression, resulting in a breach. Breach caused damages to P.
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Defenses to intentional interference with contract claim
justified if motivated by health, safety, or morals; contract is terminable at will; D is business competitor
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Interference with prospective econ advantage elements
No contract. More egregious conduct required for liability, should be independently tortious; violates federal or state law; improper conduct per balancing analysis. Business competitor will not be liable for encouraging switching business.
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Elements of theft of trade secrets
P owns valid trade secret (provides a business advantage). Not generally known. Reasonable precautions to protect. D took secret by improper means.
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What is trade libel?
malicious publication of derogatory statement relating to P’s title to business property/quality of products, and interference or damage to business relationships; proof of special damages required and mental suffering damages unavailable; truth and fair competition are valid defenses
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What is slander of title?
publication of false statement derogatory to P’s title to real property; malice; special damages as a result of diminished value in the eyes of third parties
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What is malicious prosecution?
intentional & malicious institution of legal proceeding for improper purpose; no probable cause; action dismissed in favor of the person against whom it was brought. Damages can include legal expenses, lost work time, loss of reputation, emotional distress. Judges and prosecutors have absolute immunity from liability.
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What is abuse of process?
use of legal process against P in a wrongful manner to accomplish a purpose other than that for which the process was intended; willful act; proof of damages required
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Does accidentally damaging the plaintiff's chattel count as conversion if the defendant had permission to be using the property?
No, unless his use exceeds the scope of the permission.
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What is the MBE's default jx wrt contributory vs. comparative neg?
Pure comparative neg
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Substantial factor test
Will be actual cause if substantial factor in the injury.
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Is coming to the nuisance a defense?
it is generally not a defense that the plaintiff "came to the nuisance" by purchasing property in the vicinity of the defendant's premises with knowledge of the nuisance operated by the defendant.
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What duties do sellers of real prop owe to buyers?
Sellers of real property owe a duty to disclose to buyers those concealed and unreasonably dangerous conditions known to the seller. These are conditions that the buyer is unlikely to discover upon reasonable inspection.
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Strict products liability
Under strict products liability, the manufacturer, retailer, or other distributor of a defective product may be liable for any harm caused by the product. The plaintiff must prove (i) the product was defective (in manufacture, design, or failure to warn), (ii) the defect existed at the time the product left the defendant’s control, and (iii) the defect caused the plaintiff’s injuries when the product was used in an intended or reasonably foreseeable way.
The supplier of a component that is integrated into a product during its manufacture is not liable unless the component itself is defective or the supplier substantially participates in the integration process and the integration of the component causes the product to be defective.
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Alternative liability doctrine
Under the alternative liability doctrine, if the plaintiff’s harm was caused by (i) one of a small number of defendants, (ii) each of whose conduct was tortious, and (iii) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff’s harm.
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Concert of action doctrine
Under the concert of action doctrine, if two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the plaintiff’s harm, then all the defendants will be held jointly and severally liable.
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Attractive nuissance
does not require that the child be enticed onto the property by the presence of the condition
