Torts

Question 1

MI: Caps on Medmal Damages

Answer 1

Non-economic damages:

• $280,000
• $500,000 if paralyzed, inability to procreate or take care of yourself, spinal/brain cord injury

Question 2

NIED: Elements

Answer 2

1. Defendant was negligent

2. Plaintiff did not suffer any physical trauma

Question 3

NIED: Bystander Cases

Answer 3

1. Plaintiff witnesses defendant’s negligence
2. To a person closely related to them
3. Plaintiff suffers emotional distress, which manifests itself in physical symptoms.

MBE: It must be immediate
MI: It can be fairly contemporaneous to the accident

Question 4

Assault: What is an apprehension?

Answer 4

Knowledge or anticipation

Question 5

False Imprisonment Elements and Exception for Merchants

Answer 5

1. Defendant acts with the intent to confine or restrain the plaintiff to a bounded area
2. Actual confinement occurs
3. Plaintiff knows or is hurt by it

Exception: Merchant’s Privilege: if merchant has a reasonable belief as to theft, they can detain the shopper in a reasonable manner for a reasonable time.

Question 6

IIED

Answer 6

1. Defendant intentionally or recklessly
2. Engages in extreme or outrageous conduct
3. Results in severe emotional distress

Extreme/Outrageous: transcends social norms; repetitive

Question 7

Trespass to Land

Answer 7

Physical invasion onto property of another, and defendant intends to be there

Question 8

Trespass to Chattel

Answer 8

Intentional interference with personal property of another, and harm results

Remedy: Cost to repair

Question 9

Conversion

Answer 9

Intentional interference with personal property of another, and significant damage results

MBE Remedy: FMV at time and place of conversion
MI Remedy: 3x actual damages and attorneys’ fees

Question 10

Defenses to Intentional Torts: Consent

Answer 10

Plaintiff must have the capacity to consent (not minors, incompetent people, or intoxicated people).

Consent can be express or implied (i.e., by conduct)

Would a reasonable person in defendant’s position think there was consent?

Question 11

Self-Defense

Answer 11

A person with a reasonable belief that they, or another, are in imminent danger, can use reasonably necessary force to protect against the harm.

Question 12

Nuisance MBE

Answer 12

Interference with the use and enjoyment of someone’s property.

Question 13

Nuisance MI

Answer 13

Can be private or public.

Private: substantial unreasonable interference with use and enjoyment of property.

Unreasonable is offensive/annoying to average person.

Requirements:

1. You have property rights with respect to use and enjoyment
2. The invasion causes significant harm
3. The defendant’s conduct is the legal cause of the invasion
4. Defendant’s conduct was intentional and unreasonable, or unintentional and otherwise negligent or reckless

Two types of private nuisance:

1. Nuisance per se: nuisance at all times
2. Nuisance in fact: nuisance by reason of the circumstances

Public: unreasonable interference with the health, safety, or morals of the community. Plaintiff must show he suffered a unique harm.

Question 14

Privacy Torts

Answer 14

Appropriation
False Light
Disclosure
Intrusion

You have no privacy rights after you die.

Question 15

Intrusion

Answer 15

1. Defendant intentionally pries
2. Into private place
3. In a way that is offensive to a reasonable person

Exception: Consent

Question 16

Appropriation

Answer 16

1. Unauthorized use of plaintiff’s name or likeness
2. To advertise a product in a commercial manner

Exceptions:

1. Consent
2. Newsworthy Exception: Published matter in public interest

Question 17

Disclosure

Answer 17

1. Defendant widely disseminates private information about plaintiff
2. That would be highly offensive to a reasonable person
   - Info is accurate and confidential

Exceptions:

1. Consent
2. Newsworthy Exception: Published matter in public interest
3. Defamation privileges

Question 18

False Light

Answer 18

1. Defendant widely spreads facts about plaintiff
2. Which places plaintiff in a false light
3. That would be offensive to a reasonable person
   - Statement must be objectionable
4. Consent
5. Newsworthy Exception: Published matter in public interest
6. Defamation privileges

Question 19

Defamation Elements

Answer 19

1. Defamatory statement about plaintiff
2. Unprivileged Publication of statement to a third party
3. Fault
4. Damages
5. Falsity
   - For public concern and public figure

Question 20

1. Defamatory statement about plaintiff

Answer 20

• Statement is an assertion of fact
• Adversely affects reputation
• Plaintiff must be alive when statement is made
• Plaintiff can be a corporation

Question 21

2. Unprivileged Publication of statement to a third party

Answer 21

• Third party must understand the statement

- Only need an intent to publish, not an intent to defame

Question 22

Defamation: Fault

Answer 22

Negligence: for private figures

Public figure: malice (knowledge of falsity or reckless disregard of its truth).

Question 23

Defamation: Damages

Answer 23

MBE: Damages are presumed for libel. Slander is presumed if slander per se (one of the 4 categories).

MI: Whether libel or slander, damages are presumed if they are re: crimes of moral turpitude or unchaste (whether male/female).

In MI, if a plaintiff can prove the statements were made with malice, they can recover economic and non-economic damages (not punitive). Otherwise, only economic.

Question 24

Defamation Defenses

Answer 24

1. Consent
   2a. Absolute Privilege: Statements between spouses; statements during judicial, legislative, an executive proceedings
   2b. Qualified Privilege: statements made when candor is encouraged, and speaker has a reasonable belief their statement is accurate and only discusses matters relevant to situation.

Question 25

Wild Animals

Answer 25

Strict Liability Applies to all injuries from wild animals if they are a foreseeable result of having a wild animal. - Safety precautions do not matter

Question 26

Strict Liability: Who cannot recover for a strict liability tort?

Answer 26

Does not apply to trespassers (discovered or undiscovered). However, you cannot use animals to guard against trespassers. 1. Product liability 2. Animals 3. Abnormally dangerous activity

Question 27

Domestic Animals

Answer 27

MBE: No strict liability MI: For all dog bites if you are legally allowed to be where you are, unless you adequately provoked the dog.

Question 28

Abnormally Dangerous Activity

Answer 28

1. Creates a foreseeable risk of harm even when reasonable care is exercised; and 2. Not a matter of common usage in the community Type of harm suffered must be the type that made the activity dangerous in the first place. Trigger words: explosive, nuclear, blasting, dynamite, mining, etc.

Question 29

Product Liability Elements

Answer 29

1. Proper parties - Any plaintiff - Defendant must be a merchant (routinely deals in goods of the kind) - Casual sellers or sellers who provide goods incidental to services are not merchants - Every party in chain of distribution is liable - MI: Only manufacturers can be liable 2. Product defective from time it leaves manufacturer's hands - Presumed if it travels through chain of distribution - Types of defects: manufacturing defect; design defect; failure to warn - Does not include unavoidably or unknowingly dangerous products Government Regulations - MBE: If it does not comply, it is presumed defective. If it does comply, it is evidence of non-defectiveness. - MI: If it does comply, it is presumed not defective. If it does not comply, it is evidence of defective. 3. Plaintiff makes foreseeable use (or misuse) or product

Question 30

Product Liability: Manufacturing Defect

Answer 30

Product came out in an unintended manner and was more dangerous than expected - Safety precautions do not matter

Question 31

Product Liability: Design Defect

Answer 31

Product came out as intended, but there is an alternative design that is safer, practical, and cost-effective. - Look at how dangerous it is and how avoidable it is

Question 32

Product Liability: Failure to Warn

Answer 32

- There should be a warning if there is a hidden risk. - If it is obvious, it generally does not need a warning - Examine the specifics of the warning (i.e., size, color, font, etc.) Evidence that the plaintiff failed to read the warning, or would have disregarded a proper warning is evidence to defeat the claim.

Question 33

Malicious Prosecution

Answer 33

1. Prior proceedings have been terminated in favor of plaintiff 2. There was a lack of probable cause in those proceedings 3. Malice is present (purpose other than securing a proper adjudication) 4. MI: Special injury to plaintiff

Question 34

Intentional Interference with Business Relations

Answer 34

1. Valid relationship exists 2. Defendant knew of it 3. Defendant intentionally coerces a breach or termination 4. Defendant was unauthorized to interfere 5. Defendant's interference resulted in damages Remedies 1. Economic loss 2. Punitive damages if defendant acted maliciously 3. Injunction

Question 35

Misrepresentations

Answer 35

1. Defendant makes a material misrepresentation 2. Knew the statement was false or said it with reckless indifference of its truth 3. Defendant intended to induce reliance on the misrepresentation 4. There was justifiable reliance by the plaintiff 5. Plaintiff suffered pecuniary damage

Question 36

When does J&S liability apply in Michigan?

Answer 36

Medmal cases and products liability. | - Otherwise, MI applies several liability

Question 37

When does indemnification usually come up?

Answer 37

Common with various liability or products liability.

Question 38

Vicarious and Direct Liability: Employers

Answer 38

Employers are vicariously liable for torts of employees if the tort is within scope of employment. Intentional torts are usually outside scope unless done for purpose of serving employer of if they were foreseeable. An employer can also be directly liable for their own negligence in failing to hire, fire, or supervise

Question 39

Vicarious Liability: IC

Answer 39

A principal is generally not liable for his IC. Two exceptions: 1. Nondelegable duty 2. Inherently dangerous activity 3. Direct liability

Question 40

Government Immunity: Agencies

Answer 40

Immune from tort liability if the agency is engaged in the exercise/discharge of a government function Making use of your land to provide a park for members of the public is a governmental function

Question 41

Government Immunity: Agents

Answer 41

Immune from liability if it occurred in the scope of employment, as long as three things are met: 1. Agent acting or reasonably believes they are acting within scope of authority 2. Agency is engaged in exercise of a government function 3. Agent's conduct does not amount to gross negligence that is the proximate cause of the injury Gross negligence: reckless conduct that demonstrates a substantial lack of concern for whether an injury occurs

Question 42

Government Immunity: Public Officials

Answer 42

Elected officials of all levels of government are immune from tort liability if they are acting within the scope of their authority. Ex: judges, legislators, mayors, etc.

Question 43

When does government have an affirmative duty to act?

Answer 43

1. Municipality assumed a duty to act 2. Agent had knowledge that inaction could lead to harm 3. Some direct contact between plaintiff and agent 4. Plaintiff justifiably relied on municipality’s assumption of duty

Question 44

Pothole/Highway Exception

Answer 44

1. Defect Public buildings: gov't is obligated to repair/maintain public buildings Highways: extends to improved parts of highway (designed for vehicles). 2. Knowledge - Government must know of defect and have a reasonable time to repair it - Public building: presumed if the defect existed to an ordinary observant person for 90 days or longer before injury (30 days for highway) 3. Notice Injured person must serve notice in a timely manner — generally 120 days from injury. Notice should specify location and nature of defect, injury sustained, and names of any known witnesses