Torts Flashcards
Manufacturing Defect
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.
Design Defect
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.
Strict Liability Re: Innovative Designs
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.
Professional Rescuers
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.
Standard of Care for a Minor Child
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.
Duty, In General
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.
Substantial Factor Test
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.
Causation
π must show that it is more likely than not that but for the ∆’s negligence, π would not be injured.
Nonfeasance
“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.
Public Duty Doctrine
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.
Privileged Communications for Defamation
- Communications between spouses.
- Statements made on the floor of legislation.
- Communications between high-ranking officials.
- Statements made in judicial proceedings.
Slip & Fall Cases
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.
Informed Consent
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.
Negligence Per Se
When ∆’s conduct also violates a statute that provides for civil liability. Applicable if:
- The ∆ is a member of the class that the law is designed to protect, and
- 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.
Libel v. Slander
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.
Defamation
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.
Defenses to Defamation
- Truth.
- Statement was unable to be believed.
- No harm was done.
- The statement was privileged.
Private Nuisance Balancing Factors
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.
Defenses to Strict Products Liability
- Misuse.
- Alteration.
- Assumption of risk.
There is NO contributory negligence for strict products liability.
Strict Products Liability Damages
Damages are only recoverable when there is personal injury or property damages to anything other than the defective product.
Negligent Infliction of Emotional Distress
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.
Duty Owed to Invitees
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.
Duty Owed to Licensees
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.
Products Liability — Warranty Theory
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.
Market Share Liability
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.
Wild Animal Rule
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.
Learned Hand Formula
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.
Types of Intent
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.
Intent of Children
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.
False Imprisonment
∆ 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.
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).
Bystander Duties (Minority Approach)
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.
Battery
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.
Wrongful Institution of Civil Proceedings
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.
“Thin-Skulled Plaintiff” Rule
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.
