Torts Flashcards
1
Q
What are the 4 elements of defamation?
A
[DOPE]
i) The defendant’s Defamatory language;
ii) Is Of or concerning the plaintiff;
iii) Is intentionally/negligently Published to a third party (even just one person) who understands its defamatory nature; and
iv) It damages the plaintiff’s Economic or dignitary harm.
+Only applies to a living person; you can’t defame the dead
2
Q
What are two ways in which assault differs from battery?
A
1) Bodily contact is not required for assault.
2) The plaintiff must be aware of or have knowledge of the defendant’s act or threat for assault.
3
Q
What is the doctrine of joint and several liability?
A
Two or more tortfeasors who are found liable for a single and indivisible harm to the plaintiff are subject to liability to the plaintiff for the entire harm.
The plaintiff has the choice of collecting the entire judgment from one defendant or portions of the judgment from various defendants, as long as the plaintiff’s entire recovery does not exceed the amount of the judgment.
4
Q
When determining whether contact is harmful for the purposes of battery, what is the objective test?
A
contact is offensive when a reasonable person would find the contact offensive.
5
Q
What is the “eggshell skull” rule?
A
The defendant is liable for the full extent of the plaintiff’s injuries even if the extent is unusual or unforeseeable due to the plaintiff’s preexisting mental condition or vulnerability.
+But the tortfeasor is only liable for the injuries it caused. If someone had a preexisting injury, the tortfeasor does not have to pay for the entire preexisting injury
6
Q
What is the traditional rule for contributory negligence?
A
The plaintiff’s contributory negligence (i.e., failure to exercise reasonable care for her own safety) is a complete bar to recovery, regardless of the percentage that the plaintiff’s own negligence contributed to the harm.
7
Q
What defenses are available to a defamation action?
A
truth,
consent,
absolute privileges (judicial proceedings, between spouses, as required media publications),
qualified privileges for some statements
8
Q
What is the doctrine of “transferred intent?”
A
Transferred intent exists when a person intends to commit an intentional tort against one person but instead commits:
i) A different intentional tort against that person;
ii) The intended tort against a different person; or
iii) A different intentional tort against a different person.
9
Q
What is the majority rule for proximate cause?
A
A defendant is liable for reasonably foreseeable consequences of his conduct.
In addition, the type of harm must be foreseeable, although the extent of harm does not need to be foreseeable.
10
Q
What is the duty a land possessor owes to a trespasser?
A
A land possessor is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers.
11
Q
What is the duty a land possessor owes to a licensee?
A
A land possessor has a duty to either correct or warn a licensee of concealed dangers that are either known to the land possessor or that should be obvious to her. There is no duty to repair or inspect the premises
Ex: A father has no duty to warn a grandfather that the son often leaves his toys out because the grandfather was aware of this due to regular visits. Licensees just need to be warned of HIDDEN dangers
12
Q
What is the duty a land possessor owes to an invitee?
A
A land possessor owes an invitee the duty of reasonable care, including:
a duty to make a reasonable inspection to find hidden dangers and take affirmative action to remedy a dangerous condition
13
Q
What is the definition of trespass to land?
A
The defendant’s intentional act causes a physical invasion of the plaintiff’s land.
14
Q
What are the requirements of intentional infliction of emotional distress (IIED)?
A
the defendant intentionally or recklessly acted with extreme or outrageous conduct that caused the plaintiff severe emotional distress.
15
Q
In what circumstances does a landlord have negligence liability to a tenant or third party for injuries suffered on the leased premises?
A
The landlord is liable for injuries to the tenant and others occurring:
i) In common areas such as parking lots, stairwells, lobbies, and hallways;
ii) as a result of hidden dangers about which the landlord fails to warn the tenant;
iii) on premises leased for public use;
iv) as a result of a hazard caused by the landlord’s negligent repair; or
v) involving a hazard that the landlord has agreed to repair.
16
Q
Are words sufficient to establish a prima facie case for assault?
A
For assault, words alone are insufficient. However, words coupled with conduct or other circumstances may be sufficient. If the defendant is able to carry out the threat imminently and takes action designed to put the victim in a state of apprehension, then there may be an assault.
17
Q
What qualifies as contact with the “plaintiff’s person” for the purposes of battery?
A
Contact with anything connected to the plaintiff’s person qualifies as contact with the plaintiff’s person for the purposes of battery (e.g., a person’s clothing, a pet held on a leash, a bicycle ridden by the plaintiff).
18
Q
How is express consent, as a defense to intentional torts, established?
A
The plaintiff expressly consents if the plaintiff, by words or actions, manifests the willingness to submit to the defendant’s conduct. However, the defendant’s conduct may not exceed the scope of the consent.
19
Q
In negligence actions, what standard of care applies to a professional?
A
A professional person (e.g., doctor, lawyer, or electrician) is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community. A specialist may be held to a higher standard than a general practitioner because of his superior knowledge.
+But a medical specialist is held to the national standard of care
20
Q
When has a plaintiff impliedly assumed a risk? What is the effect of that assumption?
A
The plaintiff must voluntarily encounter a known, specific risk in order to have impliedly assumed that risk. Most courts hold that the voluntary encountering must also be unreasonable.
21
Q
What is the Andrews view regarding the foreseeability of a plaintiff? (minority)
A
a duty of care is owed to everyone, including unforeseeable plaintiffs
22
Q
What is the Cardozo view regarding the foreseeability of a plaintiff? (majority)
A
a duty of care is owed to the plaintiff if she is a member of the class of persons who might be foreseeably harmed as a result of the defendant’s negligent conduct. (zone of danger)
23
Q
In negligence actions, what is the general standard of care?
A
The general standard of care imposed is that of a that of a reasonably prudent person under the circumstances.
24
Q
What is required to use force to defend property?
A
1) warning required, unless it would be futile or dangerous
2) A person may use reasonable force to defend her property if she reasonably believes it is necessary to prevent tortious harm to her property
3) deadly force can be used if non-deadly force will not suffice and the defendant reasonably believes death or serious bodily harm will result otherwise
25
When will a defendant's actions be considered intentional?
The defendant acts intentionally if:
i) The defendant acts with the purpose of causing the consequences of that act; or
ii) The defendant acts knowing that the consequence is substantially certain to result.
26
What is the firefighter's rule?
An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent in the job.
27
To which five torts does the doctrine of transferred intent apply?
1. Battery
2. Assault
3. False imprisonment
4. Trespass to chattels
5. Trespass to land
It does not apply to the intentional torts of IIED or conversion
28
What is the "shopkeeper's privilege?"
A shopkeeper’s reasonable (in both duration and manner) detention of an individual that the shopkeeper reasonably believes is shoplifting in order to investigate the facts.
29
What are the elements of battery?
[HOCI]
harmful or offensive contact, with intent to cause such contact
+A battery can be committed by ordering another person to do the act
30
Generally, when may a defendant act in self-defense and how much force may the defendant use?
A defendant may act in self-defense when the defendant reasonably believes an offensive contact or bodily harm is about to be intentionally inflicted upon him.
The force used in self-defense must be reasonably proportionate to the anticipated harm.
31
When does an intervening event (an act or event occurring after the defendant’s tortious act and before the plaintiff’s injury) cut off a defendant's liability?
An intervening event that breaks the chain of proximate causation between the defendant’s tortious act and the plaintiff’s harm is a superseding cause. An unforeseeable intervening event is generally treated as a superseding cause, while a foreseeable intervening event generally is not.
32
What is the distinction between libel and slander?
Libel is defamation by words written, printed, or otherwise recorded in permanent form (*basically everything but spoken).
Slander is spoken defamation
[remember Libel is LARGER]
33
What effect does the classification of defamation as libel or slander have on damages?
Generally, and subject to constitutional restrictions, presumed damages may be awarded for libel, but slander requires proof of special damages unless it constitutes slander per se.
[Remember slander isn't special]
34
What is the effect of a plaintiff's negligence on a strict products liability action?
In most comparative-fault jurisdictions, the plaintiff’s own negligence reduces his recovery in a strict-products-liability action in the same manner as in a negligence action.
35
When is the owner of a domestic animal strictly liable for harm done by the animal?
A domestic animal’s owner is strictly liable for injuries caused by that animal if 1) he knows or has reason to know of the animal’s dangerous propensities, and 2) the harm results from those dangerous propensities.
+A landowner is also strictly liable for injuries inflicted by a vicious watchdog
Ex: A farmer owns cattle kept in a grazing area. One day the cattle were frightened by a thunderstorm, an occasional occurrence in the area and broke out and severely destroyed the neighbor's crops. The farmer is liable because the storm was foreseeable and therefore strict liability applies.
36
In what ways may a plaintiff be confined resulting in false imprisonment?
The defendant may confine or restrain the plaintiff by the use of physical barriers, physical force, direct or indirect threats (to the plaintiff, a third party, or the plaintiff’s property), or by the invalid use of legal authority, duress, or the failure to provide a reasonable means of safe escape.
37
What is the imminence requirement for assault?
The threatened bodily harm or offensive contact must be imminent, i.e., without significant delay. Threats of future harm are insufficient, as are threats made by a defendant too far away to inflict any harm.
38
What are the elements for intentional interference with a contract?
i) A valid contract existed between the plaintiff and a third party;
ii) The defendant knew of the contractual relationship;
iii) The defendant intentionally interfered with the contract, causing a breach; and
iv) The breach caused damages to the plaintiff.
39
What is required for a prima facie case for strict liability?
i) An absolute duty to make the plaintiff’s person or property safe;
ii) Breach;
iii) Actual and proximate causation; and
iv) Damages.
40
What are the typical situations to which strict liability is applied?
Strict liability is typically applied to dangerous activities, animals, and defective or dangerous products. [DAD]
41
When will a court hold a child or a mentally incompetent person liable for an intentional tort?
A majority of courts hold that both children and those who are mentally incompetent can be held liable for intentional torts if they either act with a purpose or know the consequences of their acts with a substantial certainty.
42
What does it mean to be "confined within boundaries" for the purposes of false imprisonment?
The plaintiff must be confined within a bounded area in which the plaintiff’s freedom of movement in all directions is limited. The bounded area may be large and need not be stationary.
43
What test is applied by most courts when the conduct of two or more defendants may have contributed to a plaintiff’s indivisible injury?
Substantial-factor test: In cases in which the conduct of two or more defendants may have contributed to a plaintiff’s indivisible injury, each of which alone would have been a factual cause of that injury, the test applied by most courts is whether the defendant’s tortious conduct was a substantial factor in causing the plaintiff’s harm.
44
What is the definition of trespass to chattel?
intentional interference with the plaintiff’s right of possession by dispossession or using the chattel
+There must also be ACTUAL harm to or deprivation of the use of the chattel for a substantial time
Ex: shooting bullet holes into the vehicle's fender
+Mistake of fact or law is no excuse.
Ex: denting the door of a school bus is probably not trespass to chattel because there was no interference with the driver's possession of the bus
45
When is the use of deadly force justified in self-defense?
The defendant may use deadly force only if the defendant has a reasonable belief that force sufficient to cause serious bodily injury or death is about to be intentionally inflicted upon him.
46
What is the definition of a private nuisance?
a substantial and unreasonable interference with another individual’s use and enjoyment of his land.
+causing nearby property values to decline is not a nuisance
+A nuisance that was started solely to annoy must be unreasonable because there is no utility
+A private nuisance impacting use of a public park would fail because it must be interference with private land
47
What are the elements of false imprisonment?
intentionally and actually confining the plaintiff who is conscious of the confinement or harmed by it
48
What is the definition of conversion?
Conversion is essentially a trespass to chattel, but in a manner so serious as to deprive the P of the use of the chattel The plaintiff’s damages are the chattel’s full value at the time of the conversion.
+the longer property is deprived, the more likely it will be conversion
49
What are the elements for strict products liability?
DEC
because this is when a lot of products are sent
The plaintiff must plead and prove:
i) The product was Defective;
ii) The defect Existed when it left the commercial supplier's control; and
iii) The defect Caused the plaintiff's injury when the product was used in a reasonably foreseeable way.
50
What level of force may be used when recapturing one's personal property that was wrongfully taken?
A person may use reasonable force to reclaim personal property that another has wrongfully taken. Before using reasonable force, the person must request the return of the chattel unless the request would be futile.
51
What level of force may be used when recapturing one's personal property that was legally taken and the current possessor of the property has merely retained possession beyond the period of time to which the owner consented?
only peaceful means may be used to reclaim the chattel.
52
When may someone use deadly force to defend property?
Deadly force may not be used merely in defense of property. A person may never use a deadly mechanical device (e.g., a spring-loaded gun) to defend property.
53
What are six circumstances in which a defendant has an affirmative duty to act?
1) assumption of duty (rescuer)
2) placing another in peril
3) contract
4) authority (parent to a child)
5) special relationship (common carrier-passenger)
6) statutory obligation
54
What are the requirements of assault?
intentionally causing the plaintiff a reasonable apprehension of an immediate harmful or offensive contact with his/her person.
55
When may a defendant be liable to a third-party victim for IIED?
A defendant whose extreme and outrageous conduct has harmed a third-party may be liable to a third-party victim if
(1) the plaintiff contemporaneously perceived that conduct,
(2) the plaintiff was closely related to the third party, and
(3) the defendant knew of the plaintiff's presence and that relationship.
56
What is the definition of a public nuisance?
A public nuisance is an unreasonable interference with the health, morals, welfare, safety, or property rights of the community
57
What is the effect of an exculpatory clause in a contract under which the defendant disclaims liability for negligence? In what situations will it not be enforced?
An exculpatory clause in a contract can constitute an express assumption of the risk by the plaintiff that operates as an affirmative defense to a negligence action.
Ex: A patron at a resort ranch took part in a supervised horseback trail ride. Prior to the ride, the patron executed a valid release that enumerated the inherent risks of horseback riding and, by its terms, relieved the resort from liability from any loss, damage, or injury to the guest’s person or property suffered during the ride attributable to the negligence of the ranch or its employees. The patron was injured by a fall from the horse. The horse reared in response to negligent behavior of another rider who was also a patron at the ranch. The exculpatory provision means the resort has no liability at all
58
In what situations will an exculpatory clause not be enforced?
GRIPD
Courts will not enforce exculpatory provisions:
- Disclaiming liability for Reckless or wanton misconduct or gross negligence;
- When there is a Gross disparity of bargaining power between the parties;
- When the party seeking to apply the exculpatory provision offers services of great Importance to the public that are a practical necessity for some members of the public such as medical services;
- When it is against Public Policy to enforce agreements that insulate people from the consequences of their own negligence.
- If the exculpatory clause is subject to typical contractual Defenses such as fraud or duress; or
59
When is conduct considered extreme and outrageous for the purposes of IIED?
if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society.
60
How does product misuse affect the recovery of damages in a strict products liability action?
The misuse, alteration, or modification of a product by the user in a manner that is neither intended by nor reasonably foreseeable to the manufacturer typically negates the manufacturer's liability.
61
What is the rule regarding a parent or educator's use of force in disciplining a child?
A parent may use reasonable force or impose reasonable confinement as is necessary to discipline a child, taking into consideration the age of the child and the gravity of the behavior. An educator has the same privilege unless the parent places restrictions on that privilege.
62
What are the elements for intentional misrepresentation (i.e., fraud, deceit)?
Making Scientific Inquiries Causes Justifiable Applause
i) The defendant Made a Misrepresentation of a material fact or failed to disclose a material fact when under an affirmative duty to do so;
ii) Scienter;
iii) Intent to induce plaintiff's reliance on the misrepresentation;
iv) Causation;
v) Justifiable reliance; and
vi) The plaintiff must prove Actual damages (nominal damages are not awarded).
63
What types of damages are permitted for strict products liability claims?
Only personal injury or property damage. A claim for purely economic loss must be brought as a breach-of-warranty action.
64
What is a "Good Samaritan" statute?
A “Good Samaritan” statute protects doctors and other medical personnel when they voluntarily render emergency care. These statutes exempt medical professionals from liability for ordinary negligence; however, they do not exempt them from liability for gross negligence.
65
When may a private citizen make an arrest?
A private citizen is privileged to use force (e.g., commit a battery or false imprisonment tort) to make an arrest in the case of a felony if the felony has in fact been committed and the arresting party has reasonable grounds to suspect that the person being arrested committed it.
66
When is a person who engages an independent contractor vicariously liable for the independent contractor's torts?
Those who engage an independent contractor are generally not vicariously liable for the torts of the independent contractor. A person who hires an independent contractor is vicariously liable for certain conduct, including:
i) Inherently dangerous activities;
ii) Non-delegable duties arising out of a relationship with a specific plaintiff or the public (i.e., activities that are inherently risky or that affect the public at large, such as construction work adjacent to a public highway);
iii) The duty of a storekeeper or other operator of premises open to the public to keep such premises in a reasonably safe condition; and
iv) In a minority of jurisdictions, the duty to comply with state safety statutes.
67
What are four invasion of privacy torts?
[PIMP]
1) Placing the plaintiff in a false light
3) Intrusion upon seclusion
2) Misappropriation of the right to publicity
4) Public disclosure of private facts
68
When does the initial aggressor have a right to claim self-defense?
The initial aggressor is not entitled to claim self-defense unless the other party has responded to nondeadly force with deadly force.
69
What are three situations in which a plaintiff's express consent will not constitute a defense to an intentional tort?
If consent is obtained through any of the following means, the consent is invalid.
1) mistake
2) fraud
3) duress
70
When is an employer vicariously liable for an employee's torts?
An employer is liable for the tortious conduct of an employee that is within the scope of employment. Generally, an employer is not liable for the intentional tort of an employee unless such force is inherent to the job or the employee is authorized to act or speak for the employer and the position provided an opportunity for the tort.
71
When is the owner of a wild animal strictly liable for harm done by the animal?
An owner of a wild animal is strictly liable for harm done by that animal, despite any precautions the possessor has taken to confine the animal or prevent the harm, if the harm arises from a dangerous propensity that is characteristic of such a wild animal or of which the owner has reason to know. Strict liability also applies to injury caused by a plaintiff's fearful reaction to the sight of an unrestrained wild animal.
72
What effect does evidence of custom have on the standard of care in a negligence action?
Evidence of a custom in a community or an industry is admissible as evidence to establish the proper standard of care, but such evidence is not conclusive.
73
What are the types of product defects?
[DE FA M]
A product is defective when, at the time of the sale or distribution, it contains a:
- DEsign defect
- FAilure-to-warn defect
- Manufacturing defect:
74
When is use of force in defending others justified?
One is justified in using reasonable force in defense of others upon a reasonable belief that the defended party would be entitled to use self-defense. The defender may use force that is proportionate to the anticipated harm to the other party.
75
What test is generally applied to determine whether a defendant's conduct was the actual cause of the plaintiff's harm?
"But for" test: If the plaintiff’s injury would not have occurred but for the defendant’s tortious act or omission, then the defendant’s conduct is a factual cause of the harm.
76
What is the learned-intermediary rule regarding prescription drugs and medical devices in the context of strict products liability?
The manufacturer of a prescription drug or medical device typically satisfies its duty to warn the consumer by informing the prescribing physician, rather than the patient, of problems with the drug or device.
77
What elements must be established for violation of a statute to constitute negligence per se?
1) Violation of a statute without excuse;
2) The plaintiff is within the class of persons the statute is designed to protect;
3) the statute is designed to guard against the type of harm suffered by the plaintiff
78
What are the elements of res ipsa loquitor under the traditional approach?
NED
Under the traditional standard for res ipsa loquitur, the plaintiff must prove that:
i) the accident would Not Normally occur unless someone was negligent;
ii) the defendant had Exclusive control over the thing that caused the harm; and
iii) the plaintiff Did nothing to cause the harm.
79
What are the four elements of negligence?
Duty, breach, causation, damages
80
When can a bystander outside the zone of danger recover for NIED?
NIED recovery for plaintiffs outside the zone of danger is allowed if the plaintiff:
i) is closely related to the person injured by the defendant and
ii) was present at the scene of the injury; and
iii) personally observed (or otherwise perceived) the injury.
Ex: A child is negligently crushed to death by a fallen telephone pole and the mother is told subsequently what happened. It does not matter if the mother is closely related and has a severe response, since she was not present at the scene of the accident. Therefore, she cannot sue for NIED
81
In negligence actions, what standard of care is imposed upon a child?
The standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience.
82
What is an abnormally dangerous activity?
An activity that:
i) Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised;
ii) The activity is not commonly engaged in.
iii) and the danger outweighs the activity's value to the community
83
For what harms from an abnormally dangerous activity is strict liability applicable?
Strict liability for an abnormally dangerous activity exists only if harm that actually occurs results from the risk that made the activity abnormally dangerous in the first place.
84
Who may be a defendant in a strict products liability action?
The defendant must be in the business of selling or otherwise distributing products of the type that harmed the plaintiff, which includes the manufacturer of the product, its distributor, and its retail seller. However, service providers are not subject to strict products liability
+A health club is a service provider
85
When it comes to lawyers and other professionals, evidence of custom is admissible as evidence to establish the proper standard of care, and such evidence is...
dispositive
86
Who can be sued in a strict products liability claim?
commercial suppliers or sellers. Service providers or users of a defective product are not subject to strict products liability
Ex: A child is struck by a faulty nail gun used by a construction worker.
87
What is it called when each person who is liable for paying damages is only liable for his or her proportional fault?
pure several liability
88
What is modified comparative negligence?
the plaintiff's recovery is reduced by his or her proportionate share of fault and is BARRED if the plaintiff's fault exceeds 50%
89
What happens in a pure comparative-fault jurisdiction, when the plaintiff and the defendant are both entitled to recover damages?
the plaintiff's recovery is reduced (i.e., offset) by the defendant's recovery (and vice versa).
90
What is the definition of cause in fact?
without the act or omission, the harm would not have occurred
91
Under the majority rule, is a duty of care owed to person who are not foreseeably harmed by the negligent conduct?
No. A duty of care is only owed to persons who might be foreseeably harmed by the negligent conduct
92
What are the three theories of recovery in an NIED suit?
(1) zone of danger,
(2) bystander, and
(3) special relationship
93
What is a guest statute?
A law that states that an automobile's driver's only duty to guests is to refrain from gross or wanton and willful misconduct. This only exists in a minority of jurisdictions
The normal standard of care for drivers to both free riders and those who pay is ORDINARY CARE
94
What is the standard of care automobile drivers owe to guests and passengers who pay money for the ride?
A duty of ordinary care
95
In a strict products liability case, when must the commercial seller provide a reasonable warning or instructions?
When there is a nonobvious, foreseeable risk of harm posed by the product and the warning would reduce the risk
96
What is the minority approach to negligence per se?
the violation of a statute or ordinance is merely evidence of negligence that creates a rebuttable presumption that the defendant breached a duty of care
97
Under the modern approach to land-possessor liability, what is the default duty of care?
A land possessor owes a duty of reasonable care to ALL entrants (except flagrant trespassers)
But there is no duty of reasonable care owed to unforeseeable land entrants (e.g., a hiker on private land injured by a branch infested by termites who is unknown to the owner)
98
Under the informed-consent doctrine, when is a physician who fails to disclose the risks of a medical treatment to a patient liable for negligence?
if (1) the failure to disclose caused the patient to consent AND (2) the undisclosed risk materialized and resulted in physical harm.
99
What is the definition of intrusion upon seclusion?
Highly offensive & intentional intrusion on plaintiff's solitude, seclusion, or private affairs
Ex: An upskirt shot of someone using a concealed camera
100
What is the definition of public disclosure of private facts?
Publicity given to highly offensive & private matter concerning plaintiff that is not of legitimate public concern & results in damages
+The facts must be highly offensive to a reasonable person
101
When determining whether contact is harmful for the purposes of battery, what is the subjective test?
a defendant may be liable if he is aware that the victim is hypersensitive but proceeds to act nonetheless.
102
What duty, if any, do parents owe to exercise reasonable care to prevent their minor child from causing foreseeable harm to other?
a duty of reasonable care
103
What are the requirements for a public figure to recover for an IIED based on the defendant's publication?
A public figure may recover for intentional infliction of emotional distress based on the defendant's publication if the defendant
(1) acted in an extreme and outrageous manner,
(2) intentionally or recklessly caused the public figure severe emotional distress, and
(3) published a false statement of fact with actual malice.
104
What are common factors that could make conduct extreme and outrageous for an IIED?
FEAR
- Flagrant indecency.
- Exploiting known & special vulnerability.
- Abusing authority.
- Repeated harassment.
105
When does the last clear chance rule apply?
the last clear chance rule applies in contributory negligence jurisdictions
106
When can a private plaintiff sue for public nuisance?
only if the plaintiff sustained special damage different from that suffered by the public at large.
107
in a trespass to chattel suit, what are the ways that a plaintiff can prove harm?
- if there is intentional dispossession, harm is inferred
- if there is intentional use or intermeddling, then the P can show harm by showing 1) actual harm to the chattel, 2) substantial loss of use, or 3) bodily harm to the P
Ex: A child did not commit trespass to chattel when the boy gently playing with a man's tied up dog has
108
What are some examples of occupations that fit under the firefighter's rule and therefore these professional rescuers are barred from recovering for harm that resulted from the special dangers of their jobs
1) firefighter entering burning building
2) police officer arresting suspect
3) paramedic/lifeguard attempting risky rescue
109
What is the rescue doctrine?
persons who negligently endanger themselves or others are liable for injuries sustained by rescuers
Ex: A man rushed over to the woman, who was trapped under an 80-pound barbell. The man lifted the barbell off the woman, but injured his back in his rush to help the woman. The woman thanked the man, and told him that she knew she should not have been lifting the barbell by herself because it was too heavy for someone her size.---The woman negligently put herself in danger and the man aiding her was a foreseeable plaintiff
110
When a D raises a defense of private necessity for trespass, what may they still be liable for?
the trespasser is still liable for actual damages caused by the trespass
111
When is a product defective due to inadequate warnings or instructions?
when (1) it poses a foreseeable risk of harm that is not obvious to an ordinary user and
(2) reasonable instructions or warnings could have reduced that risk.
112
In a negligence claim, when establishing a professional's applicable standard of care,, when is expert testimony not required?
when the defendant's negligence is so apparent that a lay person could identify it, expert testimony is not required
113
medical malpractice is foreseeable and therefore NOT a superseding cause
o
114
What are the absolute privileges to defamation?
1) judicial proceeding
2) legislative proceeding
3) between spouses
4) required publication (e.g., statements by a political candidate)
115
What are the conditional privileges to defamation?
1) in the interest of the publisher (defendant), such as defending his reputation;
2) in the interest of the recipient of the statement or a third party (e.g., the interest of an association); or
3) affecting an important public interest
116
What are the elements of negligent misrepresentation?
misrepresenting negligently is causing justifiable pecuniary damages
1) misrepresentation by defendant in a business or professional capacity
2) negligent act
3) intent to induce plaintiff's reliance on the misrepresentation
4) causation
5) justifiable reliance
6) pecuniary damages
117
In a negligent misrepresentation suit, the defendant is not liable if the third party's use of the information is of a different character than the use for which the defendant provided the information
o
118
If the plaintiff in a defamation action is either a public official or a public figure, what must be shown?
the defendant acted with actual malice; that is, he either had knowledge that the statement was false or acted with reckless disregard as to the truth or falsity of the statement. To establish a reckless disregard for the truthfulness of a statement, the plaintiff must prove that the defendant entertained serious doubts about its truthfulness; mere failure to check facts is not sufficient
119
If the plaintiff in a defamation action is a private person and the defendant’s statement involves a matter of public concern, what must be shown?
the defendant acted with fault—either negligence or actual malice
120
If the plaintiff in a defamation action is a private person and the defendant’s statement does not involve a matter of public concern, what must be shown?
the constitutional requirements do not apply. At common law, the defendant was strictly liable. Most states today require at least negligence by the defendant for all defamation actions, and some now require actual malice in all defamation actions.
121
Generally, parents are not vicariously liable for their minor child’s torts. Except:
parents are liable for their own negligence with respect to their minor child’s conduct. A parent is under a duty to exercise reasonable care to prevent a minor child from intentionally or negligently harming a third party, provided the parent has the ability to control the child, and knows or should know of the necessity and opportunity for exercising such control.
122
Those who engage an independent contractor are generally not vicariously liable for the torts of the independent contractor. However, a person who hires an independent contractor remains vicariously liable for inherently dangerous activities.
o
123
What is the "single-intent" rule for battery? (majority rule)
a defendant may be liable if he intends merely to bring about the contact
124
What is the "dual-intent" rule for battery?
a defendant may be required not only to intend to bring about a contact, but also to intend that the contact be harmful or offensive
125
corporations, partnerships, and unincorporated associations may be defamed
o
126
For conversion there must be intent to convert—to take or exercise dominion over personal property.
Accidentally damaging the plaintiff’s chattel is not conversion if the defendant had permission to use the property.
127
What are the two tests used in determining whether there was a design defect?
Consumer-expectation test,
| Risk-utility test
128
What are the two approaches for determining whether there was a breach of the standard of care?
1) Comparing the defendant’s conduct with what a reasonably prudent person under the circumstances would or would not have done (majority, traditional approach)
2) Cost-benefit analysis (minority, modern trend)
129
What are common defenses to intentional torts?
[POPCANS]
- Privilege (shopkeeper's, parent)
- defense of Others
- defense of Property
- Consent
- Arrest
- Necessity
- Self-defense
130
When may a property owner use force to recapture chattels? in common law, but the modern approach is to not allow this and use other methods
Reasonable force may be used to recover possession of chattels. However, the property owner must be in fresh pursuit and deadly force is not allowed
131
What is public necessity?
A defense when the threatened harm was to the community at large. Should property be damaged, no compensation is owed
132
What is private necessity?
a defense when a person acts to prevent injury to himself or his property, or the person or property of another. Should damage to property result, the defendant must pay
+Once this privilege is exercises, the landowner must permit the trespasser and is liable for damages resulting from an attempt to stop the privileged trespass
133
What is the default standard of care?
A person has a duty to act as a reasonable prudent person under the circumstances, as measured by an objective standard
134
What is the exception to the general rule that the standard of care for children is based on that of a like child in age, intelligence, experience?
When a child is engaged in potentially dangerous activity normally pursued only by adults then the child will be held to the adult standard of care
Ex: a child driving a high-speed motorboat
135
What is the duty of care for a compensated bailor?
the bailor must inform the bailee of defects that are known or should have been known through reasonable diligence
136
What is the duty of care for a gratuitous bailer?
the bailor must inform the bailee of known defects
137
Who is the bailor?
the owner of personal property that is being temporarily held by another
[bailor like owner]
138
Who is the bailee?
the temporary holder of personal property
139
What happens if the bailment benefits the bailor or bailee?
the standard of care will deviate from the ordinary standard
140
What are the requirements for the attractive nuisance doctrine to apply?
[knowing UR slightly round...like Augustus Gloop]
1) the owner Knew or should have known that the area is one where children trespass;
2) the condition poses an Unreasonable risk of serious injury or death;
3) the children do not Realize the danger due to their age
4) the expense to remedy the condition is Slight compared to the risk; and
5) the owner fails to use Reasonable care to eliminate the danger
Exs: pools, trampolines, tree houses
141
What is the duty of care for known or frequent trespassers?
a duty to warn the trespassers of known dangers and artificial conditions that pose a risk of death or serious bodily harm
142
What happens if there is negligence per se?
majority: establishes duty and breach
minority: merely evidence of negligence
+ Remember that the plaintiff still must show causation and damages
143
When may violation of a statute (a requirement of negligence per se) be excused?
when compliance would create a greater risk of harm
144
If there is a statute in the fact pattern then analyze the breach using both 1) negligence per se and 2) the general approach
o
145
What is res ipsa loquitur?
A tool to establish breach of duty in situations where the event creates an inference that the defendant was negligent
+It does not apply to a temporary danger that could have arisen immediately before the plaintiff was harmed. Ex: a customer slips on a unblemished banana peel. Res ipsa cannot be used because it could have been dropped immediately before the fall.
146
What type of injury is required in a negligence suit?
Actual injury. Nominal damages or purely economic loss without any related personal injury or property damage cannot recover through negligence
Ex: A power utility company negligently repaired a transformer. The damage resulted in a two-day power outage in a town with a large industrial park. While none of the electronic manufacturer’s machines were damaged, it can prove with certainty that the power outage directly caused it to lose $750,000 in business. The electronics manufacturer sued the power utility company and the contractor for negligently causing its sales losses. The case should be dismissed because the electronics manufacturer suffered no tangible injury to its equipment or employees
147
What types of damages are available in a negligence suit?
PHOD
Pain and suffering
Hedonistic damages (loss of ability to enjoy life)
Out-of-pocket economic losses stemming from the injury
Direct loss
148
When are punitive damages available in a negligence suit?
when the defendant's conduct was wanton and willful
149
What is NIED?
when the defendant caused severe emotional distress through negligent action. The emotional distress generally must result in some form of bodily harm.
150
What are special relationships between the plaintiff and defendant that could lead to an NIED claim?
- negligently mishandling a corpse
- common carrier negligently reporting the death of a relative
- doctor negligently misdiagnosing a patient with a terminal illness
- contaminating food with a repulsive foreign object (e.g., a used condom in a soda bottle)
151
What are the defenses to negligence?
ACC
1) assumption of the risk
2) comparative negligence
3) contributory negligence
152
An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animal
o
153
What is the only defense to strict liability?
assumption of the risk
154
Retailers are rarely liable under a negligence products liability as they only have a duty to inspect or warn of known dangers
o
155
What are the five theories to establish products liability?
[SWIM'N]
1) strict
2) negligence
3) warranty
4) misrepresentation
5) intent
156
What is an unreasonable interference in a private nuisance suit?
either
- the harm outweighs the utility of defendant's conduct; or
- the harm is greater than plaintiff should be required to bear without consideration
157
In determining whether there has been an unreasonable interference creating a PUBLIC nuisance, what factors do courts consider?
F LDS
1) frequency and duration
2) the location of the nuisance
3) degree of damage
4) social value
158
When is coming to the nuisance a defense?
when the plaintiff came to the nuisance for the sole purpose of bringing a harassing lawsuit. It generally is not a defense, but rather something that may impact damages or whether the claim is actionable
159
What is the misappropriation of the right to publicity?
the violation of the right of an individual to control the commercial use of his identity
160
What are the elements of the misappropriation of the right to publicity?
1) unauthorized appropriation of the plaintiff's name, likeness, or identity (LIN) for the defendant's advantage
2) lack of consent
3) resulting injury
161
What are the elements of false light?
[MOP like making it appear like Paris Hilton mops the floor for fun]
1) defendant Misattributes to the plaintiff views he does not hold or actions he does not take
2) the false light is Objectionable to a reasonable person
3) the Publication is Public
162
What is malicious prosecution?
D intentionally and maliciously pursues legal action for an improper purpose. and the legal action is dismissed.
163
What damages can be recovered from a successful malicious prosecution suit?
The plaintiff may recover for any damage proximately caused by the malicious prosecution, including legal expenses, lost work time, loss of reputation, and emotional distress.
164
What is abuse of process?
When the D intentionally misuses legal process for an ulterior purpose and damages resulted.
165
What is a survival action?
an action brought by a decedent's estate for injuries/damages incurred by the decedent immediately before death
*Does not apply to defamation, right to privacy, malicious prosecution
[think: it's ironic that its a survivor's action]
166
What is a wrongful death action?
when a spouse or next of kin sues in their own right the defendant who knowingly or negligently caused the death of the decedent
[wrongful starts with W as in wife]
167
When writing an essay, don't forget that assault and IIED often go together.
o
168
How does the defense of insanity affect intentional torts?
The defense of insanity is generally no defense to intentional torts. So long as the defendant was able to form the requisite intent to do the act, he can be liable.
169
If someone intentionally cuts the breaks of A's car and it later is used by B and crashes, what is the best theory of recovery for B?
battery via transferred intent
170
What is the measure of recovery for intentional misrepresentation?
the benefit of the bargain
171
When must a land seller disclose unreasonably dangerous conditions?
If:
1) the condition exists at the time of the sale,
2) the seller knows or has reason to know of the condition and its risk,
3) the buyer does not know or have reason to know of the condition or risk, and
4) the seller has reason to believe that the buyer would not discover or realize it.
172
What can a commercial seller NOT disclaim or limit?
The commercial seller's disclaimer or limitation cannot bar or reduce an injured plaintiff's recovery for physical harm
173
What are some special relationships that create an affirmative duty to act?
- mental health professionals & patients
- business proprietor & patron
- common carrier & passenger
- innkeeper & guest
- employer & employee
- parent & child
- custodian & person in custody
174
What is negligent communication?
in a defamation suit, negligent communication occurs when the defendant should have foreseen that his statement would be heard by a third party
Ex: An owner shouting "you're a thief" in a meeting with an employee when the walls are thin.
175
If an athlete consents to the team's surgeon to do a knee surgery and, while under anesthesia, the surgeon is replaced by a superior surgeon? What if any are the possible torts?
the new surgeon is liable for battery because the surgery was beyond the scope of the consent
176
Is the homeowner liable for an injury caused by an independent contractor working on repairing the homeowner's roof?
Yes. Normally the principal is not vicariously liable for torts committed by his/her independent contractor. However, this was a non-delegable duty because a land possessor has a duty to safely conduct activities on the land when the activity poses foreseeable risks of harm to others
177
In a negligence case, what is the standard used for a person with a physical disability?
a reasonably careful person with the same disability
Ex: whether the pedestrian exercised the care of a reasonably careful blind person
178
What is malpractice?
Malpractice liability arises when a professional fails to use the standard of care that reasonable professionals in his/her field would have used under similar circumstances
179
An unborn child can recover in a lawsuit if, at the time of the accident, the child was viable
o
180
In a strict products liability action brought under a defective-design theory of recovery...
the manufacturer's evidence that the product's design was "state of the art" does not bar the plaintiff's recovery as a matter of law
181
What is the rule on age as a defenses in an intentional tort?
Age is not a defense to intentional tort liability.
Ex: A 6-year-old child may be liable for battery if the elements are present.
182
What is the majority approach on who can sue in a breach of warranty suit?
only a purchaser or members of a purchaser's family have standing to sue for breach of a product warranty AND they can only recover for personal injury
Therefore, someone who's bike is destroyed when a car's power steering malfunctioned cannot sue because they are not in privity with the car manufacturer
183
What is the minority view on who can sue in a breach of warranty suit?
anyone reasonably expected to be affected.
Under this view, someone who's bike is destroyed when a car's power steering malfunctioned CAN sue even though they are not in privity with the car manufacturer
184
What is the difference between NIED and IIED?
NIED: only negligence is needed BUT the emotional distress must manifest in physical symptoms (e.g., nightmares, shock, ulcers)
IIED: intentional or reckless extreme and outrageous conduct is required BUT there is no need to prove any physical injury.
+IIED still needs proof of severe emotional distress
185
What is required to show a zone of danger NIED?
- P was in the "zone of danger" of the threatened physical impact due to the D's negligence AND
- the threat of physical impact caused emotional distress
186
What are examples of intrusion upon seclusion?
tapping telephone wires, examining a private bank account, opening personal mail, snooping into one's email account
187
What happens if a defendant caused an accident when they had a heart attack, crossed the centerline of the road, and crashed into the plaintiff's car?
the defendant is NOT liable for per se negligence so long as the defendant shows that he was using reasonable care or was incapacitated while attempting to comply with the statute
188
What type of tort is assumption of the risk applicable?
Assumption of the risk is a defense to negligent or reckless conduct, not an intentional tort
189
A driver borrowed a car from her friend for the express purpose of driving it several block to the local drug store. Instead, the driver drove the car, which was worth $12,000 to another city 100 miles away and stayed there overnight. If the friend asserts a claim against the driver based on conversion, what is the maximum amount that the can recover from the driver?
$12,000. =A defendant who has permission to use the plaintiff's chattel commits a conversion when he intentionally uses the chattel in a way that exceeds the scope of permission and seriously violates the plaintiff's right to control the chattel. The defendant is liable for the fair market value of the chattel at the time and place of the conversion
190
If multiple defendants were negligent and any one of them could have caused the plaintiff's harm, joint and several liability allows the P to recover from any one of them even if it impossible to prove which D actually caused the harm. But the P MUST first show that each of the Ds was negligent.
Ex: 3 parents baked cookies and one of the parents caused severe illness baking their cookies.
191
An investor holds a mortgage in a farm. Due to health reasons the farmer leaves and the investor took over overseeing the farm. During the harvest, a business invitee was injured due to fault in the equipment used. The invitee sues the investor. Who is liable?
the investor is liable because the investor was a mortgagee in possession. Once in possession, the mortgagee incurs liability as if he/she were the owner
192
What is a license?
a revocable privilege to enter and use another's land for a specific purpose. The license is revocable at any time and for any lawful reason, including failure to comply with conditions
Ex: a ticketholder to a sports game
193
A woman and a man are in an accident. She sues for 100k. Both are found equally at fault. This is a modified comparative negligence jurisdiction. How much can the woman recover.
$50k. If she was even slightly over 50%, she would have received nothing
194
When does implied consent occur?
The P is in an emergency situation, the D's contact is actually or apparently necessary to protect the P from the emergency, the P is unable to consent, and the D reasonably believes the P would consent if given the opportunity
Ex: Pulling someone listening to music from entering the road when they are about to be hit by a bus
195
A tire is negligently made and causes an accident. A truck driver is hit by a speeding car as he goes to help the motorist involved in the accident. Is the manufacturer liable for injuries to the rescuing truck driver?
yes. Injuries to rescuers are foreseeable to satisfy proximate cause
196
A psychiatrist fails to diagnose her patient's suicidal state and the next day the patient commits suicide. The patient's father, upon hearing the news, suffered severe emotional distress which resulted in a stroke. Will the father prevail in a NIED suit against the psychiatrist?
No. While mental health professionals have a duty to use reasonable care to identify and mitigate any foreseeable risks of physical harm that their patients pose to others, this reaction by the father was unforeseeable
197
A customer pledged a stock certificate to a bank as security for a loan. Under the agreement, the bank was obligated to return the certificate once the loan was paid. A year later, when the customer fully repaid the loan, the bank refused the customer's demand to return the certificate due to a bank error. Two months later the bank noticed the error and offered to return the certificate, but the customer refused acceptance. At what moment did conversion happen?
conversion occurs when a D refuses to return property upon demand to a P entitled to its immediate possession
198
When does a person take possession of chattel?
they must possess the chattel and merely touching the chattel is not enough
Ex: A man tries to catch a baseball and as it touches his glove is swiped away by another. There was just contact and no possession, so the man cannot successfully sue for trespass to chattel
199
What is the doctrine of slander per se?
a plaintiff alleging slander need not plead and prove special damages if the statement defaming her alleges any of the following: [S LBC]
- Sexual misconduct (rare, like sex for drugs)
- having a Loathsome disease (leprosy or STD)
- conduct reflecting on the P's lack of fitness to conduct his Business, trade, or profession (e.g., professional incompetence)
- committing a Crime (typically of moral turpitude)
200
What is the negligence rule statement?
Negligence is conduct (either an act or omission), without wrongful intent, that falls below the minimum degree of care imposed by law to protect others against unreasonable harm A prima facie case for negligence consists of: duty, breach, causation, and damages
201
What is required to argue assumption of the risk as a defense in a negligence, recklessness, or strict liability?
The plaintiff must be aware of the danger and unreasonably expose himself to it.
202
What is an invitee?
a business visitor or a public invitee (someone invited to enter the land for the purposes for which the land is held open to the public)
+They do not have to have the intent to purchase something
203
What is the standard of care for mentally incompetent adult?
reasonable care
204
What does it mean for two or more tortfeasors to be acting in concert?
the tortfeasors were acting towards a common plan or design
205
A patient undergoes anesthesia and awakes with a burn. The P shows there was negligence and sues all the doctors and nurses who exercised control over her. What can the P argue?
at least one of the Ds had control over whatever agency or instrumentality caused the patient's injury. Therefore res ipsa can be used to let the fact finder infer negligence of EVERY D
206
A professor is denied tenure and hires a lobbying organization to represent him in having the decision reversed. The organization sends a letter to understand the decision and in response, the dean of the school says that the denial was due to reports that the professor had abused two former patients. Why is this not libel?
the professor invited the libel. Apparent consent exists when the P's words or conduct were reasonably understood by the D as consent to the defamatory communication
207
A fisherman who lived next to a lake owned a large sport-utility vehicle equipped with a trailer hitch. He used the vehicle primarily to tow his large fishing boat. One afternoon, a neighbor asked if she could borrow the fisherman’s vehicle for a short time in order to tow her boat back from the dock, as her car was at the repair shop. The fisherman agreed to let the neighbor use the vehicle to tow her boat, but asked her to return the vehicle immediately afterward. The neighbor drove the vehicle to the dock and towed her boat back without incident. Before returning the vehicle, the neighbor decided to buy a gift for the fisherman as a token of appreciation. While the neighbor was driving the vehicle to the store to buy the gift, she was involved in a serious accident. The neighbor was not seriously hurt, but the vehicle was a total loss. If the fisherman sues his neighbor for conversion, will he prevail?
Yes, the neighbor committed conversion because the neighbor exceeded the scope of consent.
208
A borrower owed a substantial sum of money to an unsavory lender. One afternoon, the lender knocked on the borrower’s door. When the borrower opened the door, the lender was holding a baseball bat and said, “If you don’t get me the money you owe within the next two hours, I’ll break your legs.” The borrower was extremely frightened, and immediately gave the lender the cash needed to satisfy the debt. If the borrower later sues the lender for assault, will the borrower prevail?
No, because the lender gave the borrower two hours to deliver the money.
209
How does contributory negligence affect a strict product liability claim?
traditional contributory negligence jx: P's negligence is NO defense
pure comparative negligence jx: P's negligence reduces recovery
210
The day after a man completed the sale of his house and moved out, one of the slates slew off the roof and injured a neighbor. The man knew that the roof was old and had lost several slates previously. If the neighbor sues the man due to the injury, will the neighbor likely prevail?
yes, because the man was aware of the condition of the roof and should have realized that it was dangerous to persons outside the premises.
Generally liability attaches to the person who occupies and controls the land, but the seller remains liable for negligence to persons off the land for physical harm caused by an artificial condition on the land that existed at the time of the sale and the seller knew, or should have known, existed and posed an unreasonable risk of harm. This liability lasts until the buyer has had a reasonable opportunity to discover and remedy the condition
211
What claim do parents have when a doctor failed to disclose information that would have led the parent to avoid or terminate a pregnancy?
wrongful birth. The majority view is that the parents are entitled to recover the cost of pain and suffering, emotional distress and cost of accommodating child's special needs minus benefit of having a child
+Minority view is no recovery
212
What claim does an unhealthy child have for unwanted life?
wrongful life. The majority view is that this is unrecoverable
[L in life for lose]
213
What are the two theories of recovery for IIED?
- direct theory
| - bystander theory (when the P witnesses the D harming a close relative)
214
What is required in a dram-shop action?
- a business sold alcohol to a minor or someone who was visibly intoxicated at the time AND
- the P's injuries were a proximate result of that person's intoxication
+Under the common law this does not apply to social hosts, but some jurisdictions have extended this to include them
215
Is a guard liable for battery when, during a bank robbery, the guard shot at the robber with a revolver and a bullet ricocheted and struck a bystander?
No, because the guard fired reasonably in his own self defense. Had the guard used a machine gun, this would have been unreasonable and he would be liable
216
What is required for the bystander theory of IIED?
- the D engaged in extreme and outrageous conduct that physically harmed the P's close relative
- the D knew that the P was present and closely related to the injured person AND
- the P perceived that conduct and suffered severe emotional distress
217
What is the doctrine of alternative liability?
There were multiple tortfeasors, at least one of them caused the P's harm, and it is impossible to tell which one of them did it. The burden then shifts to each D to prove that he/she did not cause the harm
218
What is the rule of apparent agency?
A D may be vicariously liable for a third party's tort if:
- the P reasonably believed that the third party was acting within the scope of an agency relationship with the D AND
- that belief was traceable to the D's manifestations
Ex: An installer of roofing materials is a franchisee of the manufacturer. The installer's truck has the manufacturer's logo and the manufacturer knew about this. A tort committed by the installer could apply to the manufacturer through this rule
219
A man suffered from a serious, though not immediately, life threatening impairment of his circulatory system. The doctor recommended surgery with a 2% risk of death, but did not tell the man of this risk because he was a "worrier." The surgery is successful, but the man sues the doctor for negligence What is the likely outcome?
The man will be unsuccessful because the under the informed-consent doctrine, the doctor will only be liable if the undisclosed risk materialized and resulted in physical harm.
220
A driver negligently hits a pedestrian causing his knee to buckle. Several months later, the man falls down the stairs when his knee buckled. What is the driver liable for?
The injuries to the knee and from the fall, if the jury finds that the pedestrian's fall down a flight of stairs was a normal consequence of his original injury
221
A homeowner hired a contractor to rebuild her front porch. She told the contractor to loosen the boards for aesthetic reasons until they were ready to be replaced. While the contractor was away, a neighbor stepped onto the porch and was injured. Who is liable?
Both the principle AND the independent contractor
222
A landowner hired a tree specialist to cut down four trees, which he pointed out to the specialist before the specialist began work. Although the landowner reasonably believed that all the trees were on his property, three of the trees that were cut down were in fact on the neighbor's property. Who is liable to the landowner's neighbor for conversion?
Both the tree specialist and the landowner
223
When is a commercial supplier of a component that is integrated into a defective product subject to strict liability?
Either
- the component is defective OR
- the supplier substantially participated in integrating the component into the product's design and that integration caused the product to be defective
224
A shopper slipped and fell in a grocery store injuring her wrist. In a medical malpractice action against the doctor, the shopper alleges the doctor worsened the injury. The doctor is seeking to implead the grocery store. Should the court allow the doctor to implead the grocery store?
Yes, because the fact-finder could assign some of the responsibility for the shopper's injuries to the grocery store
225
A student entered a store to find cardboard boxes for moving. A store employee then granted the student permission to enter the storeroom to look for them as it was the store's practice to give out free boxes to repeat customers. Under the common law approach, what is the student?
an invitee. Even though she has no intentions of buying something, she is invited onto the land for the purposes for which the land is held open to the public
226
A couple buys an RV. That night, before placing any items in the car, it spontaneously caught fire and was destroyed. What tort could they sue the manufacturer?
breach of warranty
They CANNOT sue for strict products liability because this was purely an economic loss
