TORTS

Question 1

Intentional tort

Answer 1

A person is liable for an intentional tort when he engages in a voluntary act with the intent to cause and does cause harm to another, where there is no privilege or defense. Intent means that the D had a desire or purpose for a certain result to occur OR that D knew with a substantial certainty that the result would occur.

Question 2

Intentional Torts are:

Answer 2

Battery, assault, false imprisonment, IIED, trespass to land, trespass to chattels, conversion

Question 3

Battery

Answer 3

A person is liable for batter for an intentional and offensive touching of the Ps person or something connected to them where such touching would be unacceptable to a person of ordinary sensibilities (intoxicated = no intent)

Question 4

Assault

Answer 4

A person is liable for assault if it’s shown that the D intentionally placed the P in a reasonable apprehension of an immediate and offensive contact or touching. RPP standard applied to whether apprehension was reasonable.

Question 5

False Imprisonment

Answer 5

A person is liable for FI when D intentionally causes, by force or threats of force, the P to be confined to a bounded area for an appreciable amount of time against Ps will and wrongfully, where P has no reasonable means of escape and P knows of the confinement or is injured by it.

Question 6

Shopkeepers privilege

Answer 6

Under the shopkeeper’s privilege the D is not liable for false imprisonment if (1) he has a reasonable suspicion that P has stolen goods (2) uses reasonable force to detain the person (3) detains the P for a reasonable period and (4) in a reasonable manner, on the premises or immediate vicinity

Question 7

Intentional Infliction of Emotional Distress

Answer 7

P must show that the Ds intentional or reckless conduct was extreme and outrageous causing P severe emotional distress.
To be extreme and outrageous, the conduct must be beyond the bounds of decency acceptable in a civilized society. Offensive or insulting language is generally not considered outrageous unless D is a common carrier, innkeeper, or D knew of Ps sensitivity (elderly, children, pregnant woman).
In order for a D to be liable for IIED to a third party bystander, the following is required
(1) the P was located near the scene
(2) P suffered severe emotional distress resulting from observing the accident
(3) D knew or should have known the P was present
(4) P had a close relationship w/ the victim OR (5) if not a close family member, what P witnesses was so shocking that it caused P physical harm.

Question 8

Bystander IIED

Answer 8

In order for a D to be liable for IIED to a third party bystander, the following is required (1) the P was located near the scene (2) P suffered severe emotional distress resulting from observing the accident (3) D knew or should have known the P was present (4) P had a close relationship w/ the victim OR (5) if not a close family member, what P witnesses was so shocking that it caused P physical harm.

Question 9

Negligent infliction of emotional distress & Bystander

Answer 9

NIED is not an intentional tort. The claim is similar to IIED but only requires a showing of negligence rather than intent. A P may recover if (1) he was in the zone of danger (in the area at risk of physical injury) (2) the D knew or should have known the P was present and (3) the Ps emotional distress resulted in a physical manifestation of injuries.
Traditionally a bystander outside the zone of danger could not recover. But a majority of states allow recovery in these cases as long as (1) the plaintiff and the person injured are closely related (2) the plaintiff was present at the scene of the injury and (3) the plaintiff personally observed or perceived the event.

Question 10

Trespass to land

Answer 10

a person is liable for the intentional tort of trespass to land if he intentionally causes something to enter the land of another regardless of whether it causes harm. An erroneous belief that the property was public does not bar the claim. If there are no actual damages, the P is entitled to nominal damages. If the D is intoxicated, and there is no intent to enter the land, he is not liable for trespass to land, but he would be liable even w/o intent if he acts w/ knowledge of a substantial certainty he or the thing will end up on another’s property.

Question 11

Trespass to Chattels

Answer 11

a person is liable for the intentional tort of trespass to chattels when he intentionally interferes w/ Ps chattel, causing him harm by dispossessing the P of his property and intermeddling w/ Ps possession of his property. The P is entitled to actual damages incurred including damages for loss of use, b/c the property is returned. The P must prove actual damages. A D is guilty even if he was mistaken.

Question 12

Conversion

Answer 12

a person is liable for the intentional tort of conversion if he intentionally interferes w/ the property of another for the purpose of depriving him thereof. To be liable, the act must cause the destruction of or a serious and substantial interference w/ Ps chattel, which results in the property being lost, totaled, destroyed, so that the property will not be returned, by Ds exercise of dominion and control over Ps property. The P is entitled to damages in the amount of the full value of the property.

Question 13

Defenses to Intentional Torts

Answer 13

(1) privilege (2) defense of others (3) defense of property (4) consent (5) authority (6) necessity – public or private (7) self – defense. If the defense is applicable, the D is not liable for his intentional conduct.

Question 14

Privilege Defense to Intentional Torts

Answer 14

A D is not liable for an intentional tort if he has a privilege to act. A privilege may exist where (1) the person affected by Ds conduct consents (2) some important personal or public interest will be protected by Ds ordinarily prohibits conduct, and this interest justifies the harm causes or threated by the Ds conduct; and (3) the Ds act must be necessary to perform an essential function (such as, shopkeeper’s privilege).

Question 15

Defense of Others Defense to Intentional Torts

Answer 15

A D is not liable for an intentional tort if he is defending others. A D is entitled to defend others from an attack by the P if there is a reasonable belief such defense is necessary. (the minority view: privilege to defend others to the same extent that the 3rd person would be lawfully entitled to defend himself from P).

Question 16

Defense of Property Defense to Intentional Torts

Answer 16

A D is not liable for an intentional tort if he is defending his property. A D is permitted to use reasonable force to prevent the P from committing a tort against Ds property. The amount of force used by the D must be no greater than necessary to prevent the threatened harm. Additionally, deadly force is not permitted, unless Ds life or bodily injury is also threatened.

Question 17

Consent Defense to Intentional Torts

Answer 17

A D is not liable for an intentional tort if the P consents to the act that constituted the tort. Consent must be effective and D must not exceed the scope of the consent. A P can manifest consent expressly, impliedly, or as a matter of law. A P manifests consent as a matter of law where (1) P is unable to consent (2) an emergency action is necessary to prevent his death or serious bodily injury (3) a reasonable person would be expected to consent under the circumstances and (4) no reason exists to believe that P would not consent. Consent related to conduct, not consequences. For example, consent to fight is not consent to be killed so the D would be liable for death. Also, consent to fight is not consent to use a knife.

Question 18

Authority Defense to Intentional Torts

Answer 18

A D is not liable for an intentional tort if he has authority to engage in the act. Specifically, police or a private citizen can arrest someone w/o a warrant to prevent a felony or breach of peace that is being committed, or reasonable appears about to be committed, in his presence.

Question 19

Private Necessity Defense to Intentional Torts

Answer 19

Under private necessity an individual is privileged to enter another’s land to prevent a threatened harm to himself or his property. If D is acting to protect private, individual interests, he is justified in doing so if the threatened harm he is acting to avoid is substantially greater than the harm that will result from the action he actually takes. The D is not liable for trespass, but if he causes damages, he is liable for the actual damages. (loss of food consumed by D but not rented value of cabin broken into.)

Question 21

Public Necessity Defense to Intentional Torts

Answer 21

Under public necessity, if the D acts out of public necessity, he incurs no liability whatsoever for the damages to Ps property. I the D is acting to protect the public interest, he is justified in doing so only if the threatened harm is severe – essentially, a disaster. (hurricane, fire)

Question 21

Self Defense Defense to Intentional Torts

Answer 21

A D is not liable for an intentional tort if he is acting in self-defense. A D is privileged to use only the degree of force reasonably necessary to protect himself from an imminent and unprivileged attack that would result in unlawful bodily harm or death. He is not privileged if the purported threat is not about to happen, has been averted, or has ended. IN addition, he is not privileged if he knows the attack is based on mistaken identity, he has time to inform the attacker of the mistake, and does not inform the attacker. In Florida, there is no duty to retreat before using deadly force.

Question 22

Negligence - Emergency

Answer 22

in an emergency, a person is still required to act reasonably, if he acts unreasonable, he is liable.

Question 23

Negligence - Duty

Answer 23

Generally, there is no affirmative duty to take action to protect a P who is at risk of injury. However, a duty is owed if (a) Ds conduct is responsible for placing P in a position where he requires aid (b) even if a D is not required to take action, once a D takes action he has a duty to exercise due care as to the subsequent conduct, and he is liable if he leaves P in a worse position and (c) a duty is owed if there is a special relationship, such as (1) parent child (2) employer employee (3) common carrier and inn keeper customer (4) school pupil (5) jailor prisoner (6) landlord tenant.

Question 24

Negligence - Duty - Rescue Doctrine

Answer 24

under the rescue doctrine, it is foreseeable that someone will come to the rescue. Therefore, a rescuer injured in an attempt to rescue another can recover for the negligence of the person who created the need to rescue. The D must be negligent for the rescuer to recover and it is irrelevant if the negligent act is a violation of a criminal statute. A D must be negligent for the rescuer to recover.

Question 25

Negligence - Duty - Child's Negligence

Answer 25

a child is liable for negligence to the extent that the child fails to exercise the reasonable care of a child of the same age, intelligence, and experience. The exception to this rule is if the child is engaged in an adult activity, such as driving a car, airplane, or other motor vehicle. The majority rule is that a child younger than 4 or 5 is not capable of negligence.

Question 26

Negligence - Duty - Firefighter's or Professional Rescuer Rule

Answer 26

traditionally, a professional rescuer, such as firefighter, police officer, cannot hold someone liable for negligence that creates a need for the rescuer’s services. This rule only applies to risks inherent in the professional rescuer’s job.

Question 27

Negligence - Duty - Conduct of 3rd Parties

Answer 27

Generally, a person is not liable for failing to control the conduct of a 3rd person unless a special relationship exists btwn the parties such as (1) parent child (2) employer employee (3) common carrier innkeeper patron (4) school-pupil (5) jailor-prisoner (6) landlord – tenant. A common carrier owes a duty to passengers to take reasonable actions to protect them from unreasonable risk of physical harm whether from the carrier’s conduct or risks from acts of 3rd persons. A common carrier is liable for the negligence of another passenger, but only if the common carrier is negligent. Additionally, a common carrier is vicariously liable under the doctrine of respondeat superior for the negligence of employees.

Question 28

Negligence - Duty - Landlord

Answer 28

A landlord owes a duty to protect tenants and is liable for failure to exercise reasonable care which results in an increased risk of harm to the P through the tortious or criminal acts of others. However, drug dealing on the property alone may not be sufficient to establish landlord liability.

Question 29

Negligence - Causes

Answer 29

if a Ds actions are the cause in fact the Ds act is not necessarily the proximate cause. In order for the Ds act to be the proximate cause of Ps injury, it must have been foreseeable. There is a limitation on liability if the risk created by Ds unreasonable conduct was not foreseeable.

Question 30

Duplicative Causes

Answer 30

if there are two or more duplicative causes, either of which would have harmed the P, the all Ds are liable.

Question 31

Supervening/Superseding Cause

Answer 31

becomes the proximate or legal cause because it breaks the chain of proximate causation btwn the Ds negligence and the Ps injury (supervening is not foreseeable).

Question 32

Intervening Cause

Answer 32

is a foreseeable intervening act and it rarely cuts of Ds liability. A D is liable if the 1st injury was a substantial factor in causing the second injury. Include (1) subsequent medical mal prac (2) negligence of rescuers (3) subsequent disease (4) subsequent accident (even if weeks later).

Question 33

Negligence - Damages

Answer 33

A P must affirmatively prove actual damages. To be liable for negligence, the P must have suffered actual damages.

Question 34

Doctrine of Res Ipsa Loquitor

Answer 34

A P can recover on a negligence claim even if the P is unable to prove exactly what was done negligently, if P can show that (1) the accident is the sort that does not ordinarily occur in the absence of negligence (2) the agency or instrumentality that causes the injury was w/n the exclusive control of the D (3) it is more likely than not that it was Ds negligence that was responsible for the event and (4) P was not responsible for the event. The doctrine permits a jury to infer Ds breach of duty, but it does not create a rebuttable presumption of negligence. The burden of proof does not switch to the D. P retains burden to prove negligence by a preponderance of the evidence. Directed verdicts may not be granted b/c, although the P does not need to present evidence, a jury can infer negligence. Generally, where there is more than one Defendant, res ipsa may not be used.

Question 35

Negligence Per Se

Answer 35

A D is strictly liable for negligence per se if a statute prohibits the Ds actions, the P is w/n the class intended to be protected by the statute and the harm was that for which the protection was intended. Mistake of law is not a defense because no mens rea is required. However, mistake of fact IS a defense (did not know taillight was out). Defenses – compliance was impossible or significantly more dangerous that noncompliance.

Question 36

Land Possessor Liability

Answer 36

A D is liable for land possessor liability as either an owner or occupier, depending on the danger or activity involved and the standard of care required based on the category of P who alleges injury.

Question 37

Use of Deadly Force

Answer 37

A person may use deadly force in self defense if he is (i) without fault (ii) confronted with unlawful force and (iii) reasonably believes that he is threatened with imminent death or great bodily harm. Generally, one who is at fault for starting a confrontation has no right to use force in his own defense. However, if the victim suddenly escalates a relatively minor fight into one with deadly force and does not give the aggressor a chance to withdrawal or retreat, the aggressor may use deadly force in his own defense. An initial aggressor may regain the right to use force in his defense if he withdraws or retreats and the previous victim now becomes the aggressor.

Question 38

Known Trespasser & Duty

Answer 38

A trespasser is known, of course, when actually notice on the property or if the owner is notified by information sufficient for a reasonable person to conclude that someone is on the property. A landowner is under a duty to exercise ordinary care to warn the trespasser of, or to make safe, artificial conditions known to the landowner that involve a risk of death or serious bodily harm, and that the trespasser is unlikely to discover. There is no duty owed for natural conditions and less dangerous artificial conditions. The owner also has a duty to exercise reasonable care in the exercise of active operations on the party.

Question 39

Unknown Trespasser & Duty

Answer 39

A landowner owes no duty to an undiscovered trespasser. He has no duty to inspect in order to ascertain whether persons are coming onto his property

Question 40

Licensee & Duty

Answer 40

A licensee is one who enters on the land with the landowner's permission, express or implied, for her own purpose or business rather than the landowner's benefit. The owner owes a licensee a duty to warn of or make safe a dangerous condition known to the owner that creates an unreasonable risk of harm to the licensee and the licensee is unlikely to discover. Owner has no duty to inspect for defects nor to repair known defects. Social guests are licensees.

Question 41

Invitee & Duty

Answer 41

An invitee is a person who enters onto the premises in response to an express or implied invitation of the landowner. Two classes (i) those who enter land held open to the public and (ii) those who enter for a purpose connected with the business (store customers, etc.) Landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. General duty includes the duties owed to licensees plus a duty to make reasonable inspections to discover dangerous conditions and make them safe.

Question 42

"Eggshell Skull" Rule

Question 43

Joint and Several Liability

Question 44

Liability for Wild Animals

Answer 44

The owner is strictly liable for injuries caused by wild animals, even those kept as pets. Liability will generally be imposed where the person injured came onto the property as an invitee or licensee, except where the owner is under a public duty to keep the animals. Trespassers must prove negligence.

Question 45

Liability for Domesticated Animals

Answer 45

The owner of a domestic animal is not strictly liable for injuries it causes. Such liability does attach if the owner has knowledge of that particular animal's dangerous propensities. This rule applies even if the animal has never actually injured anyone. Trespassers generally cannot recover for injuries inflicted by the owner's abnormally dangerous domestic animals in the absence of negligence.

Question 46

Liability for Abnormally Dangerous Activities

Answer 46

An activity may be abnormally dangerous if it involves a substantial risk of serious harm to person or property even when reasonable care is exercised. Whether an activity is abnormally dangerous is a question of law. Generally two requirements for finding - (1) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors and (2) the activity is not a matter of common usage in the community. The Defendant is only liable to foreseeable plaintiffs. Harm must result from the kind of danger anticipated from the dangerous activity. Plaintiffs contributor negligence is a defense if plaintiff knew of the danger and his unreasonable conduct was the very cause of the harm.

Question 47

Products Liability (Theories)

Answer 47

Intent, Negligence, Strict Liability, Implied Warranties of Merchantability and Fitness for a Particular Purpose, and Representation theories (Express Warranty and Misrepresentation).

Question 48

Transferred Intent

Answer 48

The transferred intent doctrine applies where the defendant intends to commit a tort against one person but instead (1) commits a different tort against that person (2) commits the same tort as intended but against a different person, or (3) commits a different tort against a different person. In such cases, the intent to commit a tort against one person is transferred to the other tort or other person. May be invoked only where the tort intended and the tort that resulted are Assault, Battery, False Imprisonment, Trespass to Land, and Trespass to Chattels.

Question 49

Attractive Nuisance Doctrine

Answer 49

In most jurisdictions, a landowner has a duty to exercise ordinary care to avoid a reasonably forseeable risk of harm to children caused by artificial conditions on his property. To assess this duty, Plaintiff must show (i) there is a dangerous condition on the land of which the owner is or should be aware (ii) the owner knows or should know that young persons frequent the vicinity of this dangerous condition (iii) the condition is likely to cause injury because of the child's inability to appreciate the risk and (iv) the expense of remedying the situation is slight compared with the magnitude of the risk.

Question 50

Statutory Standards of Care (Negligence Per Se)

Answer 50

The precise standard of care in a negligence case may be established by proving the applicability to that case of a statute providing for criminal penalties (including fines for regulatory offenses and ordinances, such as speeding). If this is done, a clearly stated specific duty imposed by the statute will replace the more general common law duty of due care. Plaintiff must show (a) plaintiff is within the class intended to be protected by the statute and (b) that the statute was designed to prevent the type fo harm that the plaintiff suffered. If shown, plaintiff will have established a conclusive presumption of duty and breach. Minority - either a rebuttable presumption of duty and breach or violation is prima facie evidence of negligence.

Question 51

Excuse for Violation of Statutory Standard of Care

Answer 51

Violation of some statutes may be excused where (i) compliance would cause more danger than the violation or (ii) compliance would be beyond defendants control.

Question 52

Breach of Duty

Answer 52

Where the defendant's conduct falls short of that level required by the applicable standard of care owed to the plaintiff, she has breached her duty. Evidence may be offered to establish the standard of care (custom or usage, violation of statute, res ipsa loquitor)

Question 53

Merged Causes - Substantial Factor Test

Answer 53

Where several causes commingle and bring about an injury - and any one alone would have been sufficient to cause the injury -- it is sufficient if the defendant's conduct was a substantial factor in causing the injury.

Question 54

Unascertainable Causes Approach

Answer 54

A problem of causation exists where two or more persons have been negligent, but uncertainty exists as to which one caused plaintiff's injuries. Under the unascertainable causes approach, the plaintiff must prove that harm has been caused to him by one of them. The burden of proof then shifts to the defendants, and each must show that his negligence is not the actual cause.

Question 55

Collateral Source Rule

Answer 55

As a general rule, damages are not reduced or mitigated by reason of benefits received by plaintiff from other sources (health insurance, sick pay). Therefore, at trial, Defendants maynot introduce evidence relating to any such financial aid from other sources.

Question 56

Contributory Negligence - When Imputed

Answer 56

Contributory negligence will be imputed only where the plaintiff and the negligent person stand in such a relationship to each other that the courts find it proper to charge plaintiff with that persons negligence. Common examples are - employer & employee, partners & joint venturers, spouses, parent & child, car owner & driver.

Question 57

Assumption of Risk

Answer 57

A plaintiff may be denied recovery if he assumed the risk of any damages caused by the defendants acts. This assumption may be expressed or implied. To have assumed risk, either expressly or impliedly, the plaintiff must have known of the risk and voluntarily assumed it. Implied assumption of risk -- knowledge of the risk and voluntary assumption of the risk.

Question 58

Partial Comparative Negligence

Answer 58

Plaintiffs recovery is barred if his negligence passes a threshold level. In some states, plaintiff will be barred if his negligence was more serious than that of the defendant. In other states, the plaintiff will be barred from recovering if his negligence was at least as serious as that of the defendant.

Question 59

Pure Comparative Negligence

Answer 59

Allows recovery no matter how great plaintiff's negligence is. On MBE, applicable rule unless stated otherwise.

Question 60

Prima Facie Case for Strict Liability

Answer 60

To establish, the following must be shown - (1) the nature of the defendant's activity imposes an absolute duty to make safe (2) the dangerous aspect of the activity is the actual and proximate cause of the plaintiff's injury and (3) the plaintiff suffered damage to person or property.

Question 61

Types of Product Defects

Answer 61

Manufacturing Defects, Design Defects, and Information Defects

Question 62

Manufacturing Defect

Answer 62

When a product emerges from a manufacturing process not only different from other products but also more dangerous than if it had been made the way it should have been

Question 63

Design Defect

Answer 63

When all products of a line are made identically but have dangerous propensities because of their mechanical features or packaging

Question 64

Information Defects

Answer 64

Inadequate warnings and instructions are information defects. A product must have clear and complete warnings of any dangers that may not be apparent to users.

Question 65

Proving a Manufacturing Defect

Answer 65

Plaintiff will prevail if the product was dangerous beyond the expectation of the ordinary consumer because of a departure from its intended design.

Question 66

Proving a Design Defect

Answer 66

Plaintiff usually must show a reasonable alternative design -- that a less dangerous modification or alternative was economically feasible. Factors that the courts consider -- usefulness and desirability of the product, availability of safer alternative products, the dangers of the product that have been identified by the time of trial, likelihood and probable seriousness of injury, the obviousness of danger, normal public expectation of dangers, avoidability of injury by care in use, and feasibility of eliminating the danger without impairing the products function or making it expensive.

Question 67

Common Defect Problems - Misuse

Answer 67

Some products may be safe if used as intended, but may involve serious dangers if used in other ways. Courts have required suppliers to anticipate reasonably foreseeable uses even if they are misuses.

Question 68

Products Liability -- Intent

Answer 68

A defendant will be liable to anyone injured by an unsafe product if the defendant intended the consequences or knew that they were substantially certain to occur.

Question 69

Products Liability - Negligence - Prima Facie Case

Answer 69

(i) the existence of a legal duty owed by the defendant to that particular plaintiff (ii) breach of that duty (iii) actual and proximate cause and (iv) damages.

Question 70

Products Liability -- Strict Liability -- Prima Facie Case

Answer 70

To establish a prima facie case, the following must be proved (i) the defendant is a commercial supplier (ii) the defendant produced or sold a product that was defective when it left the defendant's control (iii) the defective product was the actual and proximate cause of the plaintiff's injury and (iv) the plaintiff suffered damages to person or property

Question 71

Products Liability - Negligence - Breach

Answer 71

To prove breach, plaintiff must show (1) negligent conduct by the defendant leading to (2) the supplying of a defective product. Conduct must fall below standard of care expected of a person under like circumstances, considering such skill or training as defendant has.

Question 72

Products Liability - Negligence - Manufacturer

Answer 72

Manufacturer -- to show negligence in manufacturing defect, plaintiff may invoke res ipsa loquitur against the manufacturer if the error is something that does not usually occur.

Question 73

Products Liability - Negligence - Dealer

Answer 73

Dealer - retailers and wholesalers owe a duty of care to their customers and foreseeable victims. Generally only need to make a cursory inspection of the goods to avoid liability.

Question 74

Strict Products Liability - Production or Sale of Defective Product

Answer 74

For a strict liability action, the plaintiff need not prove that the defendant was at fault in selling or producing a defective product - only that the product in fact was defective when it left the defendant's control. May be liable even if it had no opportunity to inspect the maufacturers product before selling it

Question 75

Strict Products Liability - Actual Cause

Answer 75

To prove actual cause, the plaintiff must trace the harm suffered to a defect in the product that existed when the product left the defendant's control. However, if the defect is difficult to trace, the plaintiff may rely on an inference that this type of product failure ordinarily would occur only as a result of a product defect

Question 76

Strict Product Liability - Proximate Cause

Answer 76

The plaintiff must have used the product in a reasonably foreseeable manner

Question 77

Strict Product Liability - Damages Recoverable

Answer 77

Generally, personal injury and property damages. Most states deny strict liability recovery when the sole claim is economic loss.

Question 78

Implied Warranty of Merchantability

Answer 78

When a merchant, who deals in a certain kind of goods, sell such goods, there is an implied warranty that they are merchantable. merchantable means that the goods are of a quality equal to that generally acceptable among those who deal in similar goods and are generally fit for their ordinary purposes.

Question 79

Private Nuisance

Answer 79

Private nuisance is a substantial, unreasonable interference with another private individual's use or enjoyment of property he actually possesses or to which he has a right of immediate possession. The interference must be offensive, inconvenient, or annoying to an average person in the community. For a nuisance based on intent or negligence, the interference must be unreasonable -- the serverity of the inflicted injury must outweigh the utility of the defendant's conduct.

Question 80

Public Nuisance

Answer 80

Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community. Recovery is available for public nuisance only if a private party has suffered some unique damage not suffered by the public at large.

Question 81

Respondeat Superior

Answer 81

An employer will be vicariously liable for tortious acts committed by her employee if the tortious acts occur within the scope of the employment relationship. Frolic and Detour -- if the deviation was minor in time and location, the employee will still be considered to be acting w/n the scope of employment rather than on a frolic of his own. An employer is usually not liable for intentional tortious conduct by employees. In come circumstances, however, courts will find liability. Such as when (1) force is authorized in the employment (2) friction is generated by the employment (bill collector) and (3) the employee is furthering the business of the employer.

Question 82

Indpendent Contractor and Vicarious Liability

Answer 82

In general, a principal will not be liable for tortious acts of her agent if the latter is an independent contractor. Two broad exceptions exist (1) the independent contractor in engaged in inherently dangerous activities or (2) the duty, because of public policy, is nondelegable (duty to keep business safe for customers)

Question 83

Dramshop Acts

Answer 83

At common law, liability was not imposed on vendors of intoxicating beverages for injuries resulting from the vendee's intoxication. Many states have enacted Dram Shop Acts that usually create a cause of action in favor of any third person injured by the intoxicated vendee (based on ordinary negligence principles).

Question 84

Joint and Several Liability

Answer 84

When two or more tortious acts combine to proximately cause an indivisible injury to the plaintiff, each tortfeasor is jointly and severally liable for that injury. That means that each is liable to the plaintiff for the entire damage incurred.

Question 85

Prima Facie Case for Defamation

Answer 85

(a) Defamatory language on the part of the defendant (b) the defamatory language must be of or concerning the plaintiff (c) publication of the defamatory language to a third person (d) falsity of the defamatory langauge (e) fault on the defendant's part and (f) damage to the reputation of the plaintiff

Question 86

Statements of Opinion - Defamation

Answer 86

While a statement of fact may always be defamatory, a statement of opinion is actionable only if it appears to be based on specific facts and an express allegation of those facts would be defamatory.

Question 87

Slander

Answer 87

Slander is spoken defamation. It is to be distinguished from libel in that the defamation is in less permanent and less physical form.

Question 88

Invasion of Right to Privacy

Answer 88

Includes (i) appropriation by defendant of plaintiff's picture or name for defendant's commercial advantage (ii) intrusion by the defendant upon plaintiff's affairs or seclusion (iii) publication by the defendant of facts placing the plaintiff in a false light and (iv) public disclosure of private facts about the plaintiff by the defendant

Question 89

Appropriation of Plaintiff's Picture or Name

Answer 89

Unauthorized use by defendant of plaintiff's picture or name for the defendant's commercial advantage Liability limited to advertisement or promotion of product or services

Question 90

Intrusion on Plaintiff's Affairs or Seclusion - Prima Facie

Answer 90

(1) act of prying or intruding on the affairs or seclusion of the plaintiff by the defendant (2) the intrusion is something that would be highly offensive to a reasonable person and (3) the thing to which there is an intrusion or prying is private Must be an invasion of the plaintiffs private affairs or seclusion. The intrustion must be highly offensive to a reasonable person. Intrustion must be into something private.

Question 91

Publication of Facts Placing Plaintiff in False Light - Prima Facie

Answer 91

(1) Publication of facts about plaintiff by defendant placing plaintiff in a false light in the public eye (2) the false light is something that would be highly offensive to a reasonable person under the circumstances and () Actual malice on the part of the defendant where the published matter is in the public interest. False light will be deemed to present plaintiff in a false light if it attribute to him (1) views that he does not hold or (2) actions that he did not take

Question 92

Public Disclosure Of Private Facts About Plaintiff - Prima Facie

Answer 92

(1) publication or public disclosure by defendant of private information about the plaintiff and (2) the matter made public is such that its disclosure would be highly offensive to a reasonable person