Torts

Question 1

Manufacturing Defect

Answer 1

When the product is more dangerous than a consumer would reasonably expect when using it in its intended manner,

or

The product is in a condition not intended by the manufacturer and the defect existed when it left the manufacturer’s hands.

π must establish that (1) the product is not in its intended condition, and (2) that the defect existed when it left the ∆’s hands.

Question 2

Design Defect

Answer 2

A product suffers from a design defect when the product is made as intended by the manufacturer, but it still presents a danger of personal injury or property damage to the plaintiff because of a flawed design.

The court will use either the consumer expectation test or the danger-utility test to determine if a design defect exists.

Question 3

Strict Liability Re: Innovative Designs

Answer 3

Where the product is so new and innovative that adequate safety testing and standards are presently non-existent, a court will not apply strict liability.

Question 4

Professional Rescuers

Answer 4

Where the plaintiff is a professional rescuer and is injured due to an inherent risk of that job, the plaintiff cannot recover in negligence against the person who created the need for rescue.

Question 5

Standard of Care for a Minor Child

Answer 5

MAJORITY RULE: A minor child’s conduct is assessed according to what a reasonable child of the same age, experience, education, and intelligence as the defendant would have done.

Exception: A minor child undertaking an adult activity.

MINORITY RULE: Below the age of 6, a child is presumed incapable of negligence. Ages 7-13 are presumed not capable of negligence, but can be rebutted. 14+ presumed capable of negligence, but can be rebutted.

Question 6

Duty, In General

Answer 6

A ∆ only has a legal duty to act as an ordinary, prudent, and reasonable person, taking precaution against unreasonable/foreseeable risks of injury to others.

A duty is owed only to the people inside the geographical zone of danger at the time of negligence.

Question 7

Substantial Factor Test

Answer 7

When there are multiple causes for the injury, the substantial factor test replaces the cause-in-fact analysis.

Used when two ∆s cause harm, but each ∆ alone would have been enough to cause the harm.

If the ∆ was a substantial factor in causing the harm, ∆ is a cause-in-fact.

Question 8

Causation

Answer 8

π must show that it is more likely than not that but for the ∆’s negligence, π would not be injured.

Question 9

Nonfeasance

Answer 9

“Not doing something you ought to do” — the failure to intervene. At common law, there is no duty to rescue or intervene (with exceptions).

If you opt to undertake a rescue, you must act reasonable.

Special relationships or undertakings may create a duty in which action is required.

Example: The failure to warn about dangerous concealed conditions on your property.

Question 10

Public Duty Doctrine

Answer 10

A government agency does not have a duty unless the court finds that:
- There was reliance on the agency’s response;
- There was a special relationship between the plaintiff and the agency; or
- The agency increased the danger beyond what had already existed.

Question 11

Privileged Communications for Defamation

Answer 11

1. Communications between spouses.
2. Statements made on the floor of legislation.
3. Communications between high-ranking officials.
4. Statements made in judicial proceedings.

Question 12

Slip & Fall Cases

Answer 12

Duty owed to invitees.

π must show that (1) the ∆ was negligent for not noticing and repairing the dangerous condition, and (2) that the dangerous condition was present long enough that ∆ should have noticed.

Think: brown vs. yellow banana peel.

Question 13

Informed Consent

Answer 13

Traditional Rule: If there is no informed consent, it is battery. Any gross deviation from consent is also battery. Informed consent must include divulging all risks that are customarily divulged.

Modern Trend: A failure to divulge/lack of consent malpractice claim will only be successful if the π can show that they would have refused the procedure if they had known otherwise the risk.

Question 14

Negligence Per Se

Answer 14

When ∆’s conduct also violates a statute that provides for civil liability. Applicable if:

1. The ∆ is a member of the class that the law is designed to protect, and
2. The injury caused was the type that the statute sought to prevent.

If the statute applies, then an unexcused violation of the law establishes automatically that the ∆ breached a duty owed to π.

Exception/Excused Violation — When it would be more dangerous in the specific circumstance to apply with the law than it would have been to deviate from it.

Question 15

Libel v. Slander

Answer 15

Libel: Defamation in a permanent form. Reputational harm is presumed, but damages must still be proven.

Slander: Defamation in spoken form. π must prove special damages. I.e. economic damages, like medical bills, etc.

Question 16

Defamation

Answer 16

The publication of defamatory material concerning the π that caused reputation of harm and is capable of believing.

π must prove that ∆
(1) published
(2) defamatory material
(3) concerning the π, that
(4) caused reputational harm, that is
(5) capable of believing.

π must be identifiable by context if not named and someone other than the π must have read, saw, or heard the defamation.

Question 17

Defenses to Defamation

Answer 17

1. Truth.
2. Statement was unable to be believed.
3. No harm was done.
4. The statement was privileged.

Question 18

Private Nuisance Balancing Factors

Answer 18

Balancing substantial and unreasonable interference with the π’s ability to use their land with —

• The value of the ∆’s activity;
• Whether there are alternatives;
• The nature of the locality;
• The extent of the π’s injury;
• Who was there first.

Question 19

Defenses to Strict Products Liability

Answer 19

1. Misuse.
2. Alteration.
3. Assumption of risk.

There is NO contributory negligence for strict products liability.

Question 20

Strict Products Liability Damages

Answer 20

Damages are only recoverable when there is personal injury or property damages to anything other than the defective product.

Question 21

Negligent Infliction of Emotional Distress

Answer 21

When ∆ engages in negligent conduct that results in π suffering from emotional distress that has some sort of physical manifestation.

Most jurisdictions require that the π have been in the zone of danger, and that the physical harm have been done to an immediate family member.

Exception: Negligent mishandling of a corpse.

Question 22

Duty Owed to Invitees

Answer 22

An invitee is someone who enters the premises with ∆’s express or implied invitation for a purpose relating to the ∆’s interests or activities, for example, a shopper in a store, or a fan at a sports arena.

Invitees are owed a duty of reasonable care to prevent injury and to inspect for latent defects on the premises.

Watch for instances in which an invitee turns into a trespasser.

Question 23

Duty Owed to Licensees

Answer 23

A licensee is someone who enters with express or implied permission, but is not there for a purpose benefiting the ∆. The land/property must not be open to the public. I.e., a party guest.

Licensees are owed a duty to warn of concealed dangers that are not obvious.

Question 24

Products Liability — Warranty Theory

Answer 24

Under the Warranty Theory, liability arises from the fact that a product is not as represented. Plaintiff must establish that a warranty existed and the product did not conform to that warranty.

Question 25

Market Share Liability

Answer 25

The Market Share Liability doctrine of products liability apportions liability against a set of ∆s according to their respective market shares of sales of a harmful product during the period of harm caused.

Question 26

Wild Animal Rule

Answer 26

The owner of a wild animal can be _strictly liable_ for harm done by the wild animal, even if the owner takes precautions in order to prevent harm. The jury must find that the wild animal's **dangerous propensity** caused the plaintiff's injury. | Domestic pets such as dogs and cats are not considered livestock.

Question 27

Learned Hand Formula

Answer 27

To determine if someone was acting as a _reasonably prudent person_, the court will weigh factors such as: - The **probability** of harm occurring from the ∆'s conduct; - The **magnitude** of harm; and - The **burden** on the ∆ **to avoid** the harm. If the potential and gravity of the harm outweigh the burden to the defendant to avoid that harm, the defendant was not acting as a reasonably prudent person.

Question 28

Types of Intent

Answer 28

**Actual Intent**: Actual desire to cause harm. **Knowledge Intent**: ∆ knows with substantial certainty that the result will occur. **Transferred Intent**: The ∆ acts with the intent to harm one person, but instead harms another person.

Question 29

Intent of Children

Answer 29

There can be intent even if the ∆ is a child — children are liable for their own intentional torts as long as the ∆ can form the requisite intent. **Common Law**: Parents are NOT vicariously liable for the intentional torts of their children, but some jurisdictions may impose it. *This does not mean that they are negligent.*

Question 30

False Imprisonment

Answer 30

∆ intentionally causes π to be confined to a **bounded area** against the π's will, and the π **knows of the confinement** or is injured by it. Elements: 1. Intent 2. Confinement to a bounded area 3. Plaintiff's knowledge OR injury Consent is a defense. ## Footnote Confinement can be a physical barrier, threat of force, failure to release, or an invalid assertion of legal authority. If the π knows of reasonable means of escape without humiliation, there is no confinement (because then it is not against their will).

Question 31

Bystander Duties (Minority Approach)

Answer 31

General Rule: A bystander has no duty to come to the aid of someone in peril. Modern Minority Approach: If the bystander has **created the peril**, *even if utterly accidentally and without intent or negligence*, the bystander has a duty to use reasonable care to attempt a rescue.

Question 32

Battery

Answer 32

A battery is an **intentional act** that causes a **harmful** or **offensive contact** with the plaintiff *or with something closely connected thereto*. It need not be direct contact with the plaintiff's body — offensively touching *anything close to or connected to the plaintiff's body* is enough.

Question 33

Wrongful Institution of Civil Proceedings

Answer 33

One who takes an active part in the initiation, continuation, or procurement of civil proceedings against another is subject to liability to the other for wrongful civil proceedings, if: (1) he acts **without basis** and **primarily for a purpose other than that of securing the proper adjudication of the claim** on which the proceedings are based; and (2) except when they are ex parte, the proceedings have **terminated in favor of the person against whom they are brought**. _Bringing civil proceedings without basis primarily for a purpose other than adjudicating the claim, and the proceeding terminated in favor of the person against whom they were sought._

Question 34

"Thin-Skulled Plaintiff" Rule

Answer 34

When a ∆'s conduct risks physical injury to a foreseeable plaintiff, the ∆ will be liable for the **full extent of the physical injury, even if that extent was unforeseeable**. The ∆ "takes his plaintiff as he finds him." When a ∆ acts in a manner that risks physical injuries to others, he *bears the risk* that the plaintiff has *some pre-existing condition* that will result in more extensive injuries than the typical plaintiff would have manifested.

Question 35

Pure Comparative Negligence

Answer 35

**THE DEFAULT SYSTEM UNLESS NOTED OTHERWISE!** Under the pure comparative negligence system, the friend will recover his total damages *reduced by the percentage by which his negligence contributed* to those damages. I.e., if the jury determines that the ∆ was 50% liable, he will recover half of the total damages.

Question 36

Partial/Modified Comparative Negligence

Answer 36

A plaintiff whose contribution to his own injuries exceeds that of the defendant's is entirely barred from recovery. AKA, a plaintiff who is 51% comparatively negligent will recover nothing from the ∆. **NOT the default rule; the assumed jurisdiction is PURE comparative negligence.**

Question 37

Bystander Theory of Negligent Infliction of Emotional Distress

Answer 37

To recover on a bystander theory for negligent infliction of emotional distress, a plaintiff must show that: (1) he is **present at the scene** and witnessed the event; (2) he is a **close relative** of the third party/victim; and (3) he suffered **severe emotional distress** as a result.

Question 38

Consumer-Expectation Test for Design Defects

Answer 38

Under the consumer expectation test, a product is dangerously defective if a **reasonably foreseeable purchaser** would **not have expected** it to present the **danger that resulted in his injury**.

Question 39

Risk-Utility Test for Design Defects

Answer 39

Under this standard, a product is defective if it is determined that the **risk/danger it poses outweighs its utility to society**. The risk-utility test employs a balancing process, weighing the *likelihood, nature and potential severity of injuries* against the *usefulness of the product*. The balancing process includes consideration of the availability and cost of safer alternative designs.

Question 40

Interference with Prospective Advantage

Answer 40

Protects the probable "expectancy" interests of _future contractual relations of a party_, such as the prospect of obtaining employment or the opportunity to obtain customers. A defendant seeking to increase his own business may cut rates or prices, allow discounts, enter into secret negotiations behind the plaintiff's back, refuse to deal with the plaintiff, or even threaten to discharge employees who do. However, **where the ∆'s conduct is illegal or malevolent**, he may be liable for interference with prospective advantage. No illegal or malevolent interference with the business contracts of another.

Question 41

Collateral Source Rule

Answer 41

If the plaintiff is compensated from a **third-party source** (such as an insurance company), it is **not credited against the tortfeasor's liability**, even where the compensation covers all or part of the harm for which the tortfeasor is liable. Would give the ∆ a windfall and punish the π for being smart and having insurance.

Question 42

Duty Owed to Trespassers

Answer 42

KNOWN trespassers — Landowners owe a duty to **avoid** infliction of **willful or wanton harm** onto trespassers, and to **warn against concealed/artificial risks**. In general, no duty of care is owed to an unknown trespasser.

Question 43

Attractive Nuisance Doctrine

Answer 43

A trespassing child will be treated as an invitee (and thus owed a _duty of reasonable care to avoid harm and warn against it_) if — 1. The trespasser is **too young to appreciate the danger**; 2. The ∆ **knows of the trespass**; 3. ∆ knows of the **dangerous condition** on their property; 4. The condition is **artificial** (fountain, pool, equipment, etc.) and 5. The **risk of danger outweighs its utility**.

Question 44

Potential Defendants for Strict Products Liability

Answer 44

The ∆ must be a (1) manufacturer, (2) retailer, or (3) wholesaler of the defective product. Not an occasional seller, or someone supplying services.

Question 45

Abnormally Dangerous Activities

Answer 45

Courts will apply strict liability when the ∆ was engaging in an abnormally dangerous activity that caused the π harm. An activity is abnormally dangerous when — 1. There is a **high risk of serious harm**; 2. The ∆  cannot engage in the activity without that risk/**can't eliminate the risk with due care**; and 3. The activity is **not a commonly undertaken activity**.

Question 46

Pure vs. Partial/Modified Comparative Fault

Answer 46

The assumed jurisdiction is PURE comparative fault, in which the recovery is limited by the amount of fault that the π has. Under partial/modified comparative fault, if the π is 51% or more at fault, they are barred from recovery.

Question 47

Alternative Liability

Answer 47

Where multiple ∆s could have caused the injury, but the π cannot prove which one, the **burden of proving causation shifts** from the π to the ∆. ∆ must prove that they *did not* cause the injury, otherwise they are all **jointly/severally liable.**

Question 48

Rescuers

Answer 48

A negligent ∆ owes rescuers a duty of care, since a rescuer is a **foreseeable plaintiff**. Even when a rescuer is acting negligently, the negligent ∆ will be liable unless they were **wantonly reckless**.

Question 49

Wrongful Death

Answer 49

Heirs of a dead person or personal representatives of a victim's estate may bring an action for wrongful death for their **own losses**. Aka, they are recovering on behalf of **themselves** *because* the other person died.

Question 50

Vicarious Liability

Answer 50

In general, a ∆ can be liable for the negligence of another if they are exercising responsibility or control over them. *Respondeat Superior* — An employer is liable for injuries caused by the negligence of their employees if the negligence is performed **within the scope of employment**. - ∆ is not liable for *independent contractors*.

Question 51

Injurious Falsehood

Answer 51

1. False statement; 2. With actual malice/∆ knew the statement was false or recklessly disregarded the truth; 3. Made to another person/published; 4. That **caused specific economic injury** to the π. | Does not include reputational harm, only specific economic harm.

Question 52

Intentional Infliction of Emotional Distress

Answer 52

Intentional or reckless conduct, _exceeding all bounds of decency tolerated by a civilized society_, that caused the plaintiff severe emotional distress. Offensive/insulting language is generally not enough, except when — - The ∆ is a common carrier or innkeeper; - The ∆ knows of π's particular sensitivity; - The ∆ is an authority figures using racial slurs against a subordinate.

Question 53

Trespass to Land

Answer 53

The intentional physical invasion of the plaintiff's land that **interfere's with the plaintiff's possessory interests** in the land. Intent + Entry. ## Footnote Remedies: Nominal damages, ejection, and any damages for harm done on the property.

Question 54

Trespass to Chattels

Answer 54

Intentional interference with plaintiff's chattel that **causes damage**. *More of a minor interference than conversion!* Damages/remedies include: cost of repair, fair market value of the chattel, punitive damages, replevin.

Question 55

Conversion

Answer 55

Intentional dominion or control over a plaintiff's chattel that causes *complete destruction* or *serious and substantial interference* with their property interest. More of a substantial interference than trespass to chattel.

Question 56

Loss of Consortium

Answer 56

The deprivation of the benefits of a family relationship due to injuries caused by a tortfeasor. Loss of comfort, companionship, etc. Arises from a wrongful death suit.

Question 57

Defenses for Intentional Torts

Answer 57

**POPCANS** **P**rivilege Defense of **O**thers Defense of **P**roperty **C**onsent **A**uthority **N**ecessity **S**elf-defense

Question 58

Survival Statute

Answer 58

The death of a victim or tortfeasor no longer abates a claim for tort. Instead, the tort action can be brought by the the victim or tortfeasor's estate. Recovery **on behalf of the dead person**.

Question 59

Scienter

Answer 59

The mental state required for misrepresentation. ∆ must intend for the π to rely on their statement. Scienter is present when the ∆ knew that the statement was false or was reckless to its veracity.

Question 60

Compensatory Damages

Answer 60

Returns the π to their pre-injury position. - The type of damage must have been **foreseeable**; - The damages must be **reasonably certain**, and - Unavoidable.

Question 61

Superseding Cause

Answer 61

An unforeseeable, intervening cause that breaks the chain of causation between the initial wrongful act and the ultimate injury. **Relieves** the original tortfeasor of liability for **lack of proximate cause**. Includes *unforeseeable criminal acts*, *acts of nature*, and *highly extraordinary harm*.

Question 62

Intentional Misrepresentation

Answer 62

1. **Intentional misrepresentation** by the ∆, 2. Of past or present **fact**, 3. Made with **knowledge**, 4. On which the π **relies** to the π's economic detriment.

Question 63

Failure to Disclose

Answer 63

Failure to disclose facts is not enough to amount to an intentional misrepresentation, unless — - There is a fiduciary duty; - The misleading statement induces reliance; - The ∆ believes it to be true, later finds out it is false, but does not correct; and - The π would have reasonably expected the ∆ to disclose.

Question 64

Malicious Prosecution

Answer 64

To establish malicious prosecution, the π **must have prevailed on the merits** of their criminal case and have **suffered damages**.

Question 65

Defamation of Private Figures

Answer 65

Defamation of a **Private** Figure Re: a **Public Concern** — ∆ must be proven to have some degree of fault, usually negligence. If punitive damages are sought, actual malice is required. Defamation of a **Private** Figure Re: a **Private Concern** — π does not have to establish actual malice to get presumed or punitive damages.

Question 66

Defamation of Public Officials

Answer 66

The π must prove **actual malice** by *clear and convincing evidence*, as long as the defamation was related to their capacity as a public official.

Question 67

Slander Per Se

Answer 67

Actual malice is presumed when the slander is pertaining to a — - Loathsome disease; - Lack of chastity in a woman; - Crime of moral turpitude; - Behavior incompatible with a business or profession in which the π is in.

Question 68

Res Ipsa Loquitur | "The Thing Speaks for Itself"

Answer 68

Arises when the plaintiff cannot precisely identify the negligent act of the ∆, but the situation *"smells of negligence"*. Allows the jury to infer a breach of duty on the nature of the accident and the ∆'s relationship to it. Plaintiff must show: 1. That the sort of accident doesn't occur absent negligence; 2. The ∆ is the most probable responsible party because they had control over the instrumentality of harm; and 3. The π did not contribute to the harm.

Question 69

Battery

Answer 69

Harmful or offensive contact with π or something closely connected to π's person. a) Intent, + b) Harmful or offensive contact, + c) To the person or something physically or closely connected thereto. Defense = consent.

Question 70

Assault

Answer 70

∆ intentionally causes π to be in a **reasonable apprehension** of an **imminent harmful or offensive contact**. Words alone rarely create assault, especially words negating intent.

Question 71

Defamation of Public Figures

Answer 71

Either an **all-purpose** public figure (household name) or a **limited** public figure (injected themselves into controversy). Must establish **actual malice** by **clear and convincing evidence**.

Question 72

Shopkeeper's Privilege

Answer 72

Shopkeepers are not liable for false imprisonment if they had a reasonable suspicion that the π stole from them. Can only hold the π for a reasonable period, in a reasonable manner, and only on the premises or in the immediate vicinity.

Question 73

Defense of Others

Answer 73

A person is privileged to defend a 3rd person from harmful or offensive contact under the same condition and means by which he is privileged to defend themselves. If the intervening party were mistaken, that person's actions are excused if the mistake is **reasonable**, even where he injures an innocent bystander.

Question 74

Reasonable Mistake Doctrine

Answer 74

If a reasonable person in the ∆s shows would have believed that the defense of a 3rd person was **justified**, and the ∆s actions were believed to be **necessary** to prevent the harm, then the ∆ is relieved of liability.

Question 75

Public Disclosure of Private Facts

Answer 75

Public disclosure of private facts occurs when a ∆ unreasonably discloses private facts about a plaintiff to the public. **Not actionable** where the publication is "newsworthy." This defense is broadly applied. To be liable, the ∆ must — (1) **disseminate** the facts to the public, (2) the facts must be a **matter of private concern** and not open to public view or be a matter of public record, and (3) the facts must *not* be of a **legitimate public concern**. The plaintiff must show damages, but irreparable harm is not required for the plaintiff to succeed.

Question 76

Negligent Misrepresentation

Question 77

Proximate Cause

Answer 77

As a general principle in negligence actions, a ∆ will be liable only if his breach of care is shown to be the legal (proximate) cause of plaintiff's harm. Proximate cause is what the law recognizes as the "primary" cause of the injury, or usually the one closest to the injury. The action that produced foreseeable consequences without intervention.

Question 78

Standard of Care — Specialized Knowledge

Answer 78

If a person has knowledge, skill, or even intelligence superior to that of the ordinary person, the law will demand of that person conduct consistent with it. Care must be reasonable in light of their superior learning and experience, and any special skills, knowledge, or training they may personally have over and above what is normally possessed by people in the field.

Question 79

Intrusion Into Seclusion

Answer 79

(1) The intentional intrusion upon the solitude of another (with a reasonable expectation of privacy), (2) That would be highly offensive to a reasonable person.

Question 80

Appropriation of Name, Image, or Likeness

Answer 80

Use of a plaintiff's NIL without their permission for commercial gain. 1. Defendant used the plaintiff's name, image or likeness; 2. Without the plaintiff's consent; 3. For a **commercial purpose/benefit**; 4. Causing harm, of which the defendant was a substantial factor. Use of NIL for a *newsworthy* purpose is not appropriation, and can be used as a defense.

Question 81

Duty of Care for Doctors

Answer 81

Generalized Doctors — Generalist doctors are expected to have the knowledge, skill, and judgment ordinarily possessed and employed by members of the profession in good standing **within their community**. Specialized Doctors — Compared to members of their profession on a **nationwide** level.

Question 82

Express Assumption of Risk

Answer 82

An express assumption of risk in a disclaimer clause is valid only if three criteria are met: (1) the plaintiff is **aware of its terms**; (2) the injury which occurs is **within the risks of which the plaintiff agreed to** relieve the defendant; and (3) the disclaimer is **not contrary to public policy**. A disclaimer is contrary to public policy when it is actually _involuntary_ because the service is a _critical need and the plaintiff has no other **effective option**_. The young man needs to get to the hospital for treatment of his back injury.

Question 83

Negligence

Answer 83

To prevail in a negligence action, the plaintiff must show: (1) the defendant owed a duty of care, (2) a breach of that duty, (3) that this breach directly and proximately caused the harm, and (4) actual damages suffered. Negligence assessment uses an objective standard, comparing the defendant's behavior to that of a reasonable person under the circumstances.

Question 84

Vicarious Liability for the Owner of a Car

Answer 84

An owner of an automobile is vicariously liable for the negligent acts of his agents or members of his family when using the auto for "family purposes." (even if instructed to "go to the store and come right back", for example)

Question 85

Lost Chance of Survival

Answer 85

Allows a plaintiff to obtain damages from a defendant for a heightened risk of death or injury, even if the plaintiff cannot prove that the ultimate injury was caused by the defendant's negligence. Even if the plaintiff can't prove that the doctor's negligence caused their death, the loss of chance of survival is still compensable, and the estate can recover for the value of this loss.