Torts Flashcards

Question

he Cardozo Rule of Duty

Answer 1

Under Palsgraf v. Long Island Railroad Co., Justice Cardozo's majority opinion held that a defendant owes a duty only to those who could foreseeably be endangered by the defendant's negligent act. Therefore, according to the rule, there is no duty owed to a plaintiff who is in a position of apparent safety when the defendant commits a negligent act. This is the so-called "orbit of danger" (zone of danger) test. Example: A man on a pier is juggling chainsaws. There is an audience forty yards away. One of the chainsaws slips and skids down the pier and hurls wooden shards into the air. A bird grabs a shard while in mid-air and drops it on one of the audience member’s eyes. The chainsaw juggler is not liable for this injury because the audience was reasonably out of the orbit of danger.

Answer 2

In the Palsgraf case, Justice Andrews gave a dissenting opinion that has been applied as the majority opinion in other cases. Andrews argued that if the defendant owes a duty to anyone, then he owes a duty to everyone who could foreseeably be injured by his action. Thus, Cardozo looked at the issue from a perspective of identifying whether a duty is owed, while Andrews considered the issue as one of proximate causation. Example: A man on a pier is juggling chainsaws. There is an audience forty yards away. One of the chainsaws slips and skids down the pier and hurls wooden shards into the air. A bird grabs a shard while in mid-air and drops it on one of the audience member’s eyes. The chainsaw juggler IS liable to people who were injured by his act, even if not foreseeable that they would be injured.

Answer 3

``` Under the doctrine of negligence per se, the elements of duty and breach are proved when a defendant violates a safety statute that was intended to protect the class of people to which the plaintiff belongs from the kind of injury the defendant caused. In California, a presumption of negligence arises. Example: A doctor leaves a surgical sponge inside a patient after the surgery is concluded. Leaving a sponge inside of someone is inherently dangerous and therefore the duty is presumed. ```

Answer 4

Nonfeasance is a legal concept that refers to the willful failure to execute or perform an act or duty required by one’s position, office, or law whereby that neglect results in harm or damage to a person or property. The perpetrator can be found liable and subject to prosecution. Example: A day care provider hired to supervise children failed to prevent a child from climbing out on a window ledge. The child falls, then the day care provider could be found liable for nonfeasance because it was their contracted duty to watch and protect the child from harm. They failed to take action when necessary.

Answer 5

A person who embarks upon the performance of services for another, whether gratuitously or for consideration, is under a duty to render those services with due care. This person, however, is under no duty to complete the performance of the services unless abandonment would prejudice the other party's position. The rendering of aid in an emergency constitutes the performance of services, and a duty of care is imposed upon those who undertake to render such aid. Some jurisdictions have enacted statutes designed to encourage physicians to render emergency aid, by limiting the liability that could otherwise be imposed upon them. Generally speaking, liability can be imposed upon them only for reckless or wanton misconduct. Example: A good Samaritan stops and renders aid to a drowning victim. They take the victim out of the water and start mouth to mouth respirations and chest compressions. Even though the good Samaritan used due care they injured the victim’s ribs while doing compressions, but because he used due care, he is not liable for the choking man’s injuries.

Answer 6

A person whose negligence creates a situation in which he needs to be rescued may be held liable for injuries incurred by his rescuer. Example: An arsonist sets fire to a storage facility but gets trapped inside. Firefighters come to rescue him and one firefighter gets injured while attempting to save arsonist. The arsonist is liable for that firefighter’s injuries because he started the fire.

Answer 7

Negligent supervision is a cause of action that is brought by a plaintiff who suffered injury because of a child or other person who was inadequately supervised by one who owed a duty of supervision. Most commonly, it is brought against parents who failed to exercise ordinary parental discretion as to the manner in which their child is supervised or cared for. Modernly, a child may bring an action against his or her own parents for injuries sustained by the child because of lack of proper supervision. Example: An elderly woman is walking on the sidewalk when a group of neighborhood children run into her on their bikes. The children were young, between the ages of 3-7. However, the elderly woman was knocked down and sustained a hip injury. The parents of the children can be held liable because they were not around at the time of the accident, failing to adequately supervise their children.

Answer 8

An invitee is a person who has express or implied permission to enter the property for the purpose for which the property is maintained. Example: Due to the owner’s behest, a landscaper is asked to give an estimate to trim trees and cut grass on the owner’s property.

Answer 9

A business invitee is a person who has express or implied permission to enter business property to do business with the land occupier. Example: A restaurant owner has asked a plumber for an estimate to fix the leaky pipes in his kitchen.

Answer 10

A public invitee enters property in the possession of another for the purpose for which the property is held open to the public. It is not required that a business purpose be involved. Public employees acting within the scope of their official duties are included in the category of public invitees. Example: A family visiting a public park are considered public invitees.

Answer 11

A land occupier owes a duty of ordinary care to invitees, which includes reasonably inspecting the land for dangerous conditions and repairing those dangerous conditions that a reasonable inspection would reveal. Example: A land owner has a tree with a dangling branch hanging over his driveway. The owner plans to have contractors work on his roof and they will be parking on his driveway. Should an invitee get injured by said branch, then the land owner can be held liable.

Answer 12

A licensee is a person who enters property with the express or implied permission of the land occupier. Such entry is not for the purpose of doing business. Example: A homeowner invites his neighbors for a housewarming party. The neighbors that attend are considered to be licensees.

Answer 13

A landowner owes a duty of ordinary care to licensees, which includes either 1) warning licensees of known dangerous conditions, unless they are obvious or already known to the licensee, or 2) repairing dangerous conditions to make the property safe. Example: A homeowner has his in-laws over for dinner. The homeowner meant to fix a rocking chair that has a very loose leg but had not found the time. His mother-in-law sits and injures her hip. The homeowner can be held liable for injuries sustained to his licensee

Answer 14

A trespasser is someone who enters the real property of another without express or implied consent. Example: A couple decides to have a picnic under a tree on an open field. The open field is private property and is fenced in its entirety. However, the couple jumps the fence and proceeds with their picnic. They are the trespassers.

Answer 15

The land occupier generally owes no duty of care to the trespasser unless the trespasser is a constant trespasser upon a limited area or a child to whom the Attractive Nuisance Doctrine applies. Example: The couple that decided to have their picnic under the tree were injured by a loose branch. The property owner is not liable for their injuries.

Answer 16

The Attractive Nuisance Doctrine, recognized in most jurisdictions, imposes a duty upon land occupiers for the protection of young children whose trespasses are to be anticipated and whose immaturity renders them particularly susceptible to injury from dangerous conditions on the land. The land occupier owes a duty of reasonable care to eliminate a danger or to otherwise protect children when the following elements are present: 1) foreseeability of trespass, 2) foreseeability of serious harm, 3) the child is unaware of the danger, and 4) the benefit to the owner of maintaining the condition in its dangerous form is slight when weighted against the risk to children. Example: Property owner fails to cover an open water well located in the front of his property. A neighbor’s child falls into the well and injures themselves. Property owner is liable.

Answer 17

The land occupier owes a duty to maintain the premises in a reasonably safe condition for the protection of passersby and occupiers of adjoining premises. This includes the duty of inspection to discover and correct those defects that a reasonable inspection would reveal. Example: A land owner knows a tree on his property is dead and could fall. A pedestrian is walking past the land owner’s house and the tree falls injuring the pedestrian. Therefore, the land owner is liable.

Answer 18

A land occupier traditionally owed no duty to others for the care of natural conditions on the occupied property. However, the recent trend may be to impose a duty of reasonable care as to natural conditions, at least in those situations where the condition is known to the landowner. Example: A person is injured on a land owner’s private property after stepping into a sinkhole. The land owner knew of the sinkhole and failed to mark it accordingly.

Answer 19

A landlord owes no duty to a person coming onto land with a consent of the lessee, with the following exceptions: 1. The lessor owes a duty if a danger exists at the start of the lease which the lessor knows or should know about which the lessee has no reason to know about 2. The lessor has the duty to inspect for and repair dangerous conditions, if the lessor knows the lessee will hold the land open to the public. 3. The lessor has a duty to use reasonable care to make common areas safe. 4. The lessor owes a duty to keep the premises in good repair if that is part of the lease contract. 5. The lessor owes a duty if he begins repairs and performs them unreasonably or does finish them. 6. The lessor owes a general duty of care in some jurisdictions. Example: A homeowner has decided to rent out his house with a 12-month lease. Before the homeowner can do so, he must make sure every dangerous aspect of the home is remedied and that is safe for occupation.

Answer 20

A lessee is a land occupier and has the same liabilities that any land occupier would have. The lessee makes a one-time payment or a series of periodic payments to the lessor in return for the use of the asset. Example: The tenant of rental house has signed a lease for 12 months. He will pay a monthly rate of two thousand a month, and will follow the terms of the lease, which he and the lessor have agreed to.

Answer 21

If the defendant's conduct fails to meet the required standard of care, they are said to have breached that duty. Example: A driver may breach his duty to other drivers to drive safely by texting while driving.

Answer 22

Res Ipsa Loquitur is a rule of evidence that aids the plaintiff in proving the element of breach of duty when the plaintiff is unable to establish by other evidence that the defendant acted unreasonably. The doctrine proceeds upon the theory that the occurrence itself speaks of negligence and it is unnecessary for the plaintiff to show the exact circumstances whereby the defendant breached his or her duty of care. The plaintiff must prove: • the defendant was in complete control of the instrument that caused the harm; • the plaintiff is not guilty of contributory negligence; • the defendant is in a better position to explain what happened; and • injuries of this type do not normally occur absent such negligence. The literal interpretation is "the thing speaks for itself.” Example: A surgeon has left a surgical sponge inside a patient resulting in an infection for the patient.

Answer 23

An actual cause is the cause which starts, ignites, or makes possible the result which follows, and which satisfies the "But For" or Substantial Factor Test. Example: When a school bus rear ends a car, the bus driver's actions are the actual cause of the accident.

Answer 24

The "But For" Test is used to establish actual cause. To apply the test, the plaintiff must show that but for the defendant's act, the plaintiff would not have been injured. Example: Plaintiff suffers whiplash from being rear-ended by the Defendant. ‘But For’ the Defendant rear-ending Plaintiff, Plaintiff would not have been injured.

Answer 25

The Substantial Factor Test is used to establish actual cause where more than one act contributes to the plaintiff's harm. The defendant is said to be an actual cause of the plaintiff's harm if the defendant’s act is a substantial factor in bringing the harm about. This means that the defendant's act contributed in more than a trivial degree to the plaintiff's injury. The test applies where two or more acts combine to produce a single indivisible injury regardless of whether either or any of the acts by itself would have caused the injury. Where more than one act could have caused the injury by itself, then each actor may be held jointly and severally liable. However, where an act would not have caused the injury without the other contributing acts, liability may be apportioned between the tortfeasors. Example: A surgeon has left a surgical sponge inside a patient resulting in an infection for the patient. The surgeon’s mistake was the “substantial factor” for the patient’s infection.

Answer 26

Sine qua non literally means “without which not.” The term relates to the “But For” Test in that if a defendant’s act is the sine qua non of a plaintiff’s harm, then the plaintiff’s harm would not have occurred int the absence of that act. Example: Sine qua non would apply to a situation wherein a child found his father’s gun in an unlocked cabinet and injured himself. The father, who left the gun cabinet unlocked, was the sine qua non of the injury that his child ultimately suffered because had he not left the cabinet unlocked, the injury couldn’t have happened.

Answer 27

An actual cause of harm is the proximate cause of that harm if the act occurs in a natural and continuous sequence of events, unbroken by unforeseeable, independent, intervening acts and results in the harm. When a defendant's act directly causes injury to the plaintiff without any intervening causes, the majority of jurisdictions hold that act to be the proximate cause of harm unless the harm is unforeseeable. However, in some jurisdictions, if the defendant's act directly causes harm, his act is the proximate cause regardless of whether the harm was foreseeable or unforeseeable. When a dependent intervening act occurs, the chain of causation is broken only if the result of the dependent intervening act is highly unforeseeable. When an independent intervening act occurs, the chain of causation is broken unless the result of the independent act is foreseeable. Example: A driver of a car runs a red light and hits another driver of a car which had a green light, causing injury to the second driver.

Answer 28

A dependent intervening act is one that would not have occurred in the absence of the original negligence. It is nearly always considered to be part of the chain of events set in motion by the original negligent act. Therefore, a dependent intervening act breaks the chain of causation only if the act was highly unforeseeable. Example: A security guard fired a pistol and injured a bank employee because the defendant robbed the bank.

Answer 29

An independent intervening act is one that would have occurred even in the absence of the original negligence. It breaks the chain of causation unless the act or its result was foreseeable in light of the original negligent act. Example: Man1 shoots man2. Man2 was later struck by a vehicle and killed while seeking medical attention. The independent intervening cause is the vehicle striking the Man2.

Answer 30

Under the Thin Skull Plaintiff Rule, also called the Eggshell Plaintiff Rule, an exception is made to the general rule that an unforeseeable result if the defendant’s act may break the chain of causation and negate liability. The defendant “takes his plaintiff as he finds him” in that result is due to the plaintiff’s uncommon reaction or physical defect. Example: A slip and fall in a shopping mall parking lot which is not properly kept clean of snow and ice in the winter.

Answer 31

Under the minority doctrine of contributory negligence, if the plaintiff's failure to exercise reasonable care for his own safety is a contributing factor to his own injury, he is barred from recovery for the defendant's negligent action. Example: A skier not wearing a helmet has injured himself on the ski slopes. His injuries could have been mitigated if he was wearing his protective wear.

Answer 32

Modernly, the doctrine of comparative negligence has replaced contributory negligence, so that liability is apportioned according to the relative degrees of fault of the plaintiff and defendant. In a pure comparative negligence jurisdiction like California, the plaintiff will recover some damages no matter how great his own negligence was. In partial comparative negligence jurisdictions, the plaintiff will not recover if his own negligence equals or exceeds the defendant's. Example: Dan is making a left turn and hits Ann, who is driving over the speed limit. Ann sustains injuries and sues Dan for negligence. Under a comparative negligence system, Dan may be found 80% at fault for failing to make a safe left turn, and Ann may be found to be 20% at fault for speeding. If Ann's total damages amount to $100,000, Ann will receive $80,000 instead of the total amount—her amount is reduced according to her degree of fault 20%.

Answer 33

The last clear chance doctrine limits the contributory negligence defense so that even if the plaintiff was contributorily negligent, he will be permitted to recover if the defendant had a superior opportunity to avoid the accident and failed to do so. Example: Brandon is driving down a two-lane highway. Madison is driving in the opposite direction. Brandon is groggy and he is fighting to stay awake. His car starts to snake along the road. Madison sees all that is happening in front of her. She also sees Brandon’s car start to curve in her direction. She has plenty of time to turn her car to avoid Brandon, but she does not do so. As a result, the cars collide, and Brandon hurts his neck. Here, both Brandon and Madison are negligent. However, note that Becky had the “last clear chance” to avoid the car accident, but she failed to do so.

Answer 34

Under the defense of assumption of the risk, a plaintiff assumes the risk of harm if he voluntarily subjects himself to a known and appreciated risk. Such consent may be expressly created by agreement between the parties, or it may be implied by the plaintiff's conduct. At common law, assumption of the risk is a complete bar to recovery in a negligence action. Example: A patron at a theme park stood and watched a roller coaster for several minutes before deciding to go on the ride. The patron's observation of the roller coaster suggests an understanding of the inherent risks and a decision to assume those risks.

Answer 35

Joint tortfeasors consist of two or more persons who join together to commit a tortuous act. Their status is similar to that of co-conspirators in criminal law, and each is vicariously liable for the acts done by the other in the furtherance of the common design. Example: A pedestrian on a cross walk is struck by a vehicle. The driver was intoxicated because they were continuously served alcohol. The driver and the bartender are both negligent because their independent acts resulted in the plaintiff’s injuries.

Answer 36

Concurrent tortfeasors consist of two or more persons who are not acting in concert with each other, but whose acts combine to produce a single indivisible injury to the plaintiff. In some jurisdictions, joint and several liability is applied in a pure form, holding each concurrent tortfeasor liable for the full amount of the harm. However, a majority of jurisdictions will apportion damages by using a comparative fault system. Vicarious liability does not apply. Example: An example of concurrent tortfeasors would be two motorists in separate cars, both driving negligently and causing a collision in which a pedestrian is injured.

Answer 37

A successive tortfeasor is one whose negligence follows an initial injury and adds to, or aggravates, the existing injury. Under the rules of proximate causation, if the second tortfeasor's negligent act did not break the chain of causation set in motion by the first tortfeasor, then the first tortfeasor can be held liable for both acts. However, if the second tortfeasor's negligent act did break the chain of proximate causation, the first tortfeasor can only be held liable for his own negligence. Example: The plaintiff was involved in a car accident where defendant1 ran his red light and hit the plaintiff’s car, resulting in a concussion for the plaintiff. The same week the plaintiff was crossing the street and defendant2 failed to yield to pedestrians in the crosswalk, and struck the plaintiff resulting in further head and neck trauma. Both defendants’ negligence resulted in injury to the plaintiff.

Answer 38

Joint and several liability is imposed upon joint and concurrent (but not successive) tortfeasors. This means that each is responsible for the full amount of the plaintiff's injury and the full amount of a related court judgment. Judgments for the full amount may be obtained against any of the tortfeasors, but the plaintiff is not entitled to recover more than the total judgment. Thus, satisfaction from one tortfeasor will discharge the liability of the others to the plaintiff. Example: Alice and Bob, in their respective cars, both run a red light and hit Charles, who is driving through the intersection. Charles suffers serious injuries and damage to his car, and he is unable to work. Charles decides to sue. He can either sue Alice alone, Bob alone, or sue them both at the same time. Charles can collect damages depending on the avenue he pursues.

Answer 39

Contribution relates to a claim by one concurrent tortfeasor against another concurrent tortfeasor, requesting reimbursement of the other's proportional share of a court judgment. It is typically used after joint and several liability has been found and one defendant has had to pay the plaintiff more than his pro rata share of the damages. Example: Two motorists caused a collision at an intersection that results in injury to a pedestrian. The pedestrian is the injured party. The pedestrian however may choose to sue only one motorist. That motorist who is sued may then assert a contribution

Answer 40

Indemnity is a shifting of the liability from a defendant who is only secondarily or vicariously liable to the party who is primarily liable. Where it applies, indemnification allows the secondarily or vicariously liable defendant who has paid a court judgment to obtain full reimbursement from the party who is primarily liable. Some jurisdictions, including California, have adopted a rule of partial indemnity on the basis of relative fault of the parties. Example: Davis constructed a 3D printed gun to sell. He has sold it to Mary. Mary then takes the 3D printed gun to a shooting range and it malfunctions and it shoots a bystander. The bystander sues Mary and is awarded damages against her. Mary is entitled to indemnification against Davis, whether or not the bystander sues Davis.

Answer 41

Under the theory of vicarious liability, a defendant who is not charged with personal fault or wrongdoing may be held liable for the tortfeasor's act because of the defendant's relationship to the tortfeasor (e.g., the defendant is an employer, joint venturer, car owner, bailor, parent, etc.) A defendant who is held vicariously liable has the right to indemnification by the tortfeasor. Example: Employee recklessly drives employer’s van onto the sidewalk and hits Pedestrian. The employer maybe vicariously liable.

Answer 42

Joint venturers are similar to partners except that joint venturers share only a short, specific purpose, such as a trip or single transaction. Joint venturers are generally vicariously liable for each other’s torts in furtherance of the venture. Example: Woman1 and woman2 go into business together and open a salon. If woman1 is sued regarding the salon, it is likely that woman2 will be held vicariously liable for future litigation.

Answer 43

The literal translation is “let the superior answer.” The doctrine applies in employment situations to hold the employer vicariously liable for his employee’s torts which are committed within the scope of employment. Example: In a personal injury case that involves a truck driver's negligence, the injured individual can try to bring the driver's employer, often the trucking company itself, into the case and hold them liable as well.

Answer 44

A tort is committed within the scope of employment when the employee was acting with an intent to further his employer’s business interests, even if the employee acted indirectly or unwisely, and even if the employer forbade the employee from such an act. Example: An employer instructs his employee not to use extreme force if a theft should arise in his store. One day two men are caught stealing merchandise from the store. When the men are confronted by the employee the men run out of the store. The employee runs after them and takes out a gun. The men have made it to their car and are far from the employees reach. The employee then takes out a gun and shoots at the men.

Answer 45

Strict liability is liability without fault. It is imposed against a defendant even though the defendant has done nothing intentionally wrong and has not acted unreasonably under the circumstances. Such liability is imposed, traditionally, for the keeping of dangerous animals, and the carrying on of abnormally dangerous activities. Example: A white tiger had been spotted in a Houston neighborhood. It belongs to a man who lives in the neighborhood and keeps the exotic animal as a pet in city limits.

Answer 46

A manufacturer or seller who releases an unreasonably dangerous product into the stream of commerce is liable for harm caused by the product. In order to recover, it must be proved that the product was defective in design, manufacture, or warning, and one of four separate and distinct theories of liability must be asserted: intentional, negligence, breach of warranty, or strict liability. Example: A baby’s crib has a spring that has been discovered to be the cause of many children losing their fingers while lowering the crib rail. Damages may be applied under products liability (strict liability).

Answer 47

When a product is defective in design, it means that the product was produced as intended by the manufacturer, but because of its design, the product creates an unreasonable danger to consumers. However, a defense may exist where the product is unavoidably unsafe and its benefits outweigh the dangers. Example: Design defects include products that are unduly flammable or prone to melting, especially if heat is an essential part of its purpose or function, like an electric blanket that catches fire.

Answer 48

When a product is defective in manufacture, it means that the product was not made as intended. Instead, due to an error in the production of the particular item at issue, the product is aberrant. Note that other products of the same type may not be defective. Example: A plaintiff’s metal hip replacement prematurely breaks due to substandard manufacturing practices. When these types of manufacturing defects cause injuries to consumers, the manufacturer can be found liable.

Answer 49

When a product is defective in warning, its design and production are as intended, but the product poses a danger that is not apparent to the reasonable customer. Example: The plaintiff bought a set of Christmas lights that overheat if on continuously for more than 4 hours. After 4 hours, the lights present a fire risk. The manufacturer fails to warn about the potential danger of the product. If the plaintiff is injured by a fire started due to the product they could recover not only for a defect in the design of the lights, but also for the inadequate warnings regarding the danger posed by the lights.

Answer 50

In order to recover for intentional misrepresentation, or deceit, the plaintiff must prove that the defendant made a false statement of material fact with scienter and with intent to induce the plaintiff's reliance, and that the plaintiff justifiably relied, causing the plaintiff damage. Example: A person is selling a car and knows there is a problem with the transmission, yet advertises it in perfect mechanical condition, they have committed intentional misrepresentation

Answer 51

In order to recover for negligent misrepresentation, the plaintiff must prove that the defendant breached his duty to exercise due care in acquiring and transmitting information, and made a false statement of material fact, with an intent to induce the plaintiff's reliance, and that the plaintiff justifiably relied, causing the plaintiff damage. Example: Improper and unreasonable cost and completion time estimates would be an example of negligent misrepresentation.

Answer 52

Defamation is a false and defamatory statement, published intentionally or negligently to a third person, that the third person understood applied to the plaintiff, and which caused damage to the plaintiff. In order to recover damages, in addition to proving each element of defamation, the plaintiff is required to show that he or she has made a demand for a retraction from the defendant that would be given equal publicity, and the plaintiff must show that the defendant has refused to give the retraction. Example: A rapper recently won a judgement against a news publication for defamation because they falsely reported that she was an unfit mother and addicted to drugs.

Answer 53

Slander, which is defamation that is published through the spoken word, requires proof of special pecuniary damages that flow directly from the defamation. Once these are proved, general damages are recoverable. Example: The news publication that defamed the rapper was also liable for slander because they reaffirmed the false statements, that the rapper was addicted to drugs and was an unfit mother, through their podcasts and talk radio

Answer 54

Slander Per Se results from a slanderous statement that is sufficiently serious to allow the plaintiff to recover without proof of special damages. The slanderous statement must allege criminal behavior, loathsome disease, unchaste, or improper business practices. For slander per se, the plaintiff is not required to prove special damages in order to recover general damages. Example: The rapper sued the publication because her album sales declined due to the rumor that she contracted a sexually transmitted disease while being unfaithful to her husband and while addicted to drugs. The news publication knowingly reported the false statements in order to increase sales.

Answer 55

Libel is written defamation. Example: The news publication that first reported the falsehoods of the rapper, in regards to her being a drug addict and an unfit mother, was awarded a judgment against the publication for libel. The news publication first wrote published the false stories on their website in the form of a news article.

Answer 56

Libel Per Se is a statement that is clearly defamatory on its face, meaning that inducement and innuendo are not needed to establish the fact that the statement is defamatory. For libel per se, proof of special damages is not required, and general damages are presumed. Example: The rapper sued the publication because they perpetuated the rumor that the rapper contracted a sexually transmitted disease while being unfaithful to her husband and while addicted to drugs. The news publication knowingly wrote the false statements in order to increase traffic to their website and other social media platforms.

Answer 57

Libel per quod is not defamatory on its face but is defamatory only when viewed in light of outside circumstances, meaning that the inducement and innuendo are needed to establish the defamation. Libel per quod requires proof of special damages in some jurisdictions. Example: The rapper sued the publication because her album sales declined due to the rumor that she contracted a sexually transmitted disease while being unfaithful to her husband and while addicted to drugs. The news publication knowingly wrote the false statements in order to increase traffic to their website and other social media platforms.

Answer 58

Colloquium is the offer of extrinsic evidence to explain the defamatory sense of the defendant's statement, and is included in a complaint when a statement is not defamatory on its face. Example: A news outlet reported that the CEO of ACME industries was embezzling funds from his own company. and used illegal drugs. However, there is only one CEO of ACME industries. This would most likely be specific enough to meet the colloquium element of defamation.

Answer 59

Inducement is the extrinsic facts necessary to understand the defamation. Example: A gossip website reports that Bill Hader recently got married. The inducement is the fact that Hader is a Catholic priest.

Answer 60

The Fair Comment Privilege is a common law rule derived from the First Amendment rights of free speech and free press. The privilege applies to statements of opinion that have been made in good faith on matters of public interest. Covered by this privilege are opinions about newsworthy persons, events, products, art, works, etc. Example: A reporter goes to a city council meeting and a city council woman says a defamatory remark, the reporter can print the defamatory statements of the city council woman. The Fair Comment Privilege covers the media’s accurate reporting of ‘official statements’ by government officials made at a governmental setting or in less formal ways.

Answer 61

Malicious Prosecution is a cause of action against a defendant who previously filed criminal or civil proceedings against the plaintiff without probable cause and with malice. The original proceeding must have ended in favor of the party who is now suing for malicious prosecution. Example: Peter, a prosecutor, is running for State’s attorney in his district. When he loses the election, he is convinced that his opponent ran a crooked campaign. As lead prosecutor in the town, Peter charges his former opponent with bribing public officials.

Answer 62

Under tort law, a person is liable for abuse of process if he previously initiated a legal proceeding against the plaintiff, with an ulterior motive, and for an improper purpose. Example: Judy has bought a dining-room furniture set and after a couple of weeks decides she no longer likes it. Therefore, goes back to the store and asks for refund. The store, maintains that it is unable to provide a refund due to the absence of any manufacturer defects. Judy then threatens the manager of the furniture store with legal action if she is not granted her refund. Judy obtains the necessary documents to file a small claims lawsuit against the store, fills them out, and has a process server deliver them to the store manager. Judy never filed with the court and was merely using it as a scare tactic.

Answer 63

Disparagement, or trade libel, is the publication of an untrue or misleading statement about another's business or product in an attempt to influence a person not to deal with the business. Example: A local restaurant owner prints flyers that states his competitor charges twice the price for the same drinks and meals, even though he has no knowledge of his competitor’s prices.

Answer 64

Interference with Economic Relationship is a broad cause of action alleging an intentional interference with one's business relationships. Included are interferences with contractual relationships, expected commercial relationships, and intimidation of employees, clients, etc. To prevail, the plaintiff must prove that the defendant intentionally and unlawfully interfered with the plaintiff's business or enterprise, and that the defendant's act resulted in commercial or economic harm to the plaintiff. Example: Daniel LaRousso convinces the owner of a shopping strip to raise the rent to his lease holders in order to close down a competing dojo out of business.

Answer 65

Private nuisance results from an act by the defendant who unreasonably interferes with the plaintiff's use or enjoyment of his property. Example: Beverly has asked her neighbor, Bob to keep his dog from barking through the night. The excessive and loud barking is preventing Beverly from having a restful night’s sleep and it is affecting her health and well-being. Bob has refused to comply

Answer 66

Public nuisance results from an act or conduct by the defendant that is injurious to the public in general. Example: An entire neighborhood, with a total of 200 houses, have decided to sue a nearby poultry farm. The plaintiffs maintain that their health is being affected as a result of the polutry farm and the noxious odors it emits. They argue the fumes from the animal waste is hazardous to their health. Some health complaints include asthma, migraines, itchy, watery eyes, and excessive coughing.

Answer 67

Generally, causes of action for invasion of privacy relates to the violation of one's right to be let alone. One of four theories must be charged: appropriation of likeness, intrusion upon seclusion, public disclosure of private facts, or false light. Example: A couple has begun renting a house and signed a 12-month lease. After the first month of occupation the couple learned that the landlord installed video recording equipment in their bedrooms and bathrooms. The couple has a right to privacy and an expectation of it in their home regardless of the fact that the landlord owns the home.

Answer 68

Under the theory of appropriation of likeness, the plaintiff alleges that the defendant has committed an invasion of privacy through the unauthorized use of the plaintiff’s name or likeness. Most commonly, the suit arises from the use of the plaintiff’s name or likeness to promote a business or product, however most jurisdictions do not require a commercial use. Example: A wig company uses celebrities’ pictures in their advertisements. Their entire website has wigs and then a picture of a celebrity with a similar hairstyle. The celebrities featured in their website did not know they are being used and are not compensated for the use of their likeness.

Answer 69

Under the theory of intrusion upon seclusion, the plaintiff alleges that the defendant has committed an invasion of privacy through an intentional and unreasonable interference with the plaintiff’s private affairs or an invasion of a location in which the plaintiff has a reasonable expectation of privacy. Example: A woman notices a man outside her bedroom window watching her undress with binoculars. She has become emotionally distressed after the incident. The woman had a reasonable expectation of privacy in her own bedroom, in her own residence.

Answer 70

Under the theory of public disclosure of private facts, the plaintiff alleges that the defendant committed an invasion of privacy through the publication of information relating to the plaintiff which is not a legitimate concern to public, in a way that would be highly offensive to a reasonable person. Example: Carol has just had the birth of her first child. Carol has consented to the hospital taking video at the time of birth for educational purposes. The hospital later releases the video of Carol giving birth to another party. It is then shown in a commercial setting and publicly viewed. Carol did not consent to making the birth publicly available.

Answer 71

The theory of false light is not recognized by some states and in these states, the plaintiff must prove defamation to recover damages. However, in those states which recognize false light, the plaintiff must prove that the defendant has committed an invasion of privacy through the publication to the public of offensive, untruthful or misleading information about the plaintiff. In California, where the publication involves a false implication, an action brought for false light. Example: Gerald has decided to resign his position on the City Council to care for his ailing father, who has serious health problems. A local news website has written a story about Gerald’s resignation. However, they painted Gerald’s resignation in a false light, they implied he resigned because of infidelity. The website published the story, intentionally, with false or untrue information, in the hopes to increase their website’s traffic.

Answer 72

Special Damages are pecuniary in nature and related to specific costs incurred due to the particular circumstances involved in the tort. Special damages must be specifically claimed and proved. Examples are lost wages, medical expenses and other “out of pocket” losses. Example: A woman was driving her minivan down a rural road when a tractor trailer rear-ended her. The plaintiff, sustained a broken back in the accident and. She is a surgeon and owns her own medical practice. The plaintiff had to learn to walk again, and regain the ability to stand for long periods of time and handle to stress of being a surgeon. The plaintiff and her husband filed a lawsuit, and the tractor trailer company was held liable for the accident. The plaintiff and her husband sued for medical expenses, as well as lost wages due to her inability to work. They also sued for pain and suffering. They were ultimately awarded nearly $4 million in compensatory and special damages.

Answer 73

General Damages are non-pecuniary in nature and are presumed by the law to be incurred based upon the commission of the tort. General damages need not be specifically claimed and proved. Examples, are pain, suffering and inconvenience. Example: The plaintiff in the previous case was also awarded general damages for her pain and suffering. This was in addition to her lost wages, so more difficult to ascertain a specific amount. General damages are awarded for things that do not come with a price tag, such as the loss of reputation, or for emotional pain and suffering.

Answer 74

Punitive damages, also called exemplary damages, are awarded to the plaintiff for the purpose of punishing the defendant for malicious or reckless conduct. The intent is to make an "example" of the defendant's conduct so that such conduct will not be repeated. Example: Examples of this would be drunk driving or distracted driving. In both cases, the defendant would have made a conscious decision to engage in behavior that could easily harm another person.

Answer 75

Under the doctrine of Avoidable Consequences, a plaintiff must act reasonably to mitigate his or her damages. If the plaintiff fails to act reasonably to minimize his loss or injury, the amount in damages he or she recovers may be reduced. Example: Cowboys and Cowgirls was the name of the party putting on a rodeo at a convention center. The party inadvertently set off the fire sprinkler system, causing substantial water damage. The owner of the convention center sued Cowboys and Cowgirls. The party contended that the convention center’s damages were exacerbated by the owners’ failure to shut down the sprinkler system as soon as reasonably possible. Cowboys and Cowgirls contend had the convention center shut off the sprinklers faster, they could have mitigated the extent of the damages.

Answer 76

Under the Collateral Source Rule, if a third party provides benefits or reimbursement to the plaintiff for losses caused by the defendant, no evidence of the money or benefits from the collateral source may be introduced by the defendant to try to diminish the amount in damages he owes the plaintiff. Example: The plaintiff is in a two-vehicle collision due to another person’s negligence and the plaintiff’s medical expenses exceed $200,000. The plaintiff’s health insurance company agrees to pay $200,000 in medical expenses and the plaintiff’s parents give them a vehicle to replace the damaged vehicle. The plaintiff is still entitled to pursue damages from the defendant for the $200,000 in hospital bills and for the property damage for the plaintiff’s car. The defendant in this case cannot introduce the monetary value the plaintiff received from their insurance company or their parents into evidence.

Torts Flashcards

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