Torts

Question 1

Libel

Answer 1

Libel is written defamation

Question 2

Defamation

Answer 2

Plantiff must prove
1. D made a defamatory (false) statement
2. concerning the P
3. publication
4. damages to the plaintiffs repuations
5. if public figure, falisity and fault on the part of the D
6. knowledge that the statement is false or recklass disregard for truth

Question 3

Product Liabilty Tort Theories avaible for recovery

Answer 3

(1) strict liabilty
(2) negligence
(3) implied warranties

Question 4

Strict Product Liability

Answer 4

Requires
(1) strict duty owed by a commercial supplier - not a causual seller,a merchant
(2) breach
(3) causation
(4) damages

Question 5

Breach - Strict Products Liabilty

Answer 5

(1) D supplies defective product and (2) product is defective when it leaves the D’s control

Question 6

3 types of SL defects

Answer 6

(1) Manufacturing
(2) Design
(3) Inadequate warning

Question 7

Manufacturing Defect

Answer 7

Must prove
(1) product emerges from manufacturing different and more dangerous than the prducts made properly and (2) plaintiff used product in reasonably foreseeable way

Question 8

Consumer Expecation Test

Answer 8

is met if the product leave the manufacturer in a condition more dangerous than the average consumer reaosnably expected

Question 9

Design Defect

Answer 9

(1) inherently dangerous condition of product
(2) plaintiff used product in reasonably foreseeable way
(3) defendant could have made the product safer, without serious impact on product price or utility

TWO TESTS
CONSUMER EXPECTATION TEST
FEASIBLE ALTERNATIVE TEST

Question 10

Feasible Alternative Test

Answer 10

balances
(1) product design with available market alternatives,
(2) alternative design cost,
(3) risk to users.

Question 11

Inadequate Warning

Answer 11

(1) danger must not be apparent to users.
(2) manufacturer failed to adequately warn of
product use risks

Question 12

Actual Cause (Product Liability)

Answer 12

trace harm suffered to defect in product

Question 13

Res Ipsa Loquitur – Defective Product

Answer 13

P proves defect
(1) was a kind that ordinarily occurs as a result of a product defect, and
(2) was not solely the result of causes other than a product defect existing at the time of sale or distribution.

Question 14

Proximate Cause

Answer 14

(1) injury is a foreseeable result of defendant’s acts.
(2) an unforeseeable intervening event severs the causal connection

Question 15

2 Implied Warranties

Answer 15

(1) merchantability, and

(2) fit for particular purposes
(a) seller knows of a buyer’s particular purpose, and (b) the buyer relies on the seller’s skill in purchasing the goods.

Question 16

Contributory Negligence

Answer 16

Bars recovery when P contributes to the harm
CL : contributory negligence is a complete bar to recovery.

In strict products liability, the plaintiff’s negligence generally is not a defense if the plaintiff misused the product in a
reasonably foreseeable way or negligently failed to discover the defect. Suppliers are required to
anticipate reasonably foreseeable misuses of products.

Question 17

Comparative Negligence

Answer 17

pure” comparative negligence - P’s contributory negligence reduces
the recovery of damages by the proportion plaintiff’s fault bears to the total harm.

“partial” comparative negligence: recovery is barred if s/he is
more than 50% at fault.

Comparative negligence is not a defense when the plaintiff’s
negligence constitutes conduct the very risk of which made the product defective.

Question 18

Assumption of Risk

Answer 18

Bars recovery where s/he is aware of danger, and assumes the risk of harm (1) knowingly, and (2) voluntarily.

Question 19

Trespass to Land

Answer 19

Trespass to land occurs when (1) defendant’s intentional act (2) causes physical invasion (3) of the land of another without their permission

Question 20

Trespass to Land (Intent)

Answer 20

A trespass only occurs if the trespasser actually intended to occupy the land. The trespasser’s knowledge about the ownership of the land is irrelevant. A mistaken belief that they had the right to enter the land is not a defense.

Question 21

Wild Animals (SL)

Answer 21

WIld animal
animal with known dangerous propensities

Question 22

Duty of Care
(Torts)

Answer 22

A duty of care is owed to all foreseeable plaintiffs.
Majority - plaintiff is foreseeable if she is within the zone of danger
Minority view - plaintiff is foreseeable if she is injured by D’s conduct

Question 23

Standard of Care

Answer 23

default standard of care is to act as a reasonably prudent person would under the circumstances

Question 24

Licensees
(Torts)

Answer 24

Those who enter onto the land of another with permission, for social purposes.

Landowner: Must warn or make safe all concealed dangers (artificial or not, unreasonably dangerous or not) that the landowner knows of.

Question 25

Invitees

Answer 25

Those who enter with permission, either to bestow an economic benefit upon the owner, or because the premises are held open to the general public. Landowner: Must make reasonable inspections of the premises, warn of any concealed dangers, and make the premises safe for invitees.

Question 26

IIED

Answer 26

(1) extreme and outrageous conduct (2) causes plaintiff severe emotional harm (3) damages

Question 27

NIED

Answer 27

(1) D is negligent (2) P in zone of danger Bystander (1) P and person injured by D are closely related, (2) P was present at the scene, and (3) P observed or perceived the injury.

Question 28

Breach

Answer 28

Where D's conduct falls short of standard of care imposed

Question 29

Firefighters Rule

Answer 29

When Firefighter or PO injured while doing there job, scope of duty is limited if the injuries arose from the risks injerent to her job

Question 30

Vicarious Liability (Torts)

Answer 30

(1) employer vicariously liable for torts committed by her employee within scope of imployee, (2) not liable for torts of independent contractor, unless contractor engaged in (i) inherently dangerous activity or (ii) principal's duty is non-delegable

Question 31

Employee vs. Independent Contractor Test (Torts)

Answer 31

(1) duration of employement (2) was task business related or personal (3) compensation based on task or time? (4) did parties believe employee-employer relationship existed?

Question 32

Abnormally Dangerous Activity

Answer 32

(1) activity with high risk of harm, (2) not commonly found in community (3) has a risk that cannot be eliminated with due care. The utility is usually lower than the risk of harm. The defendant is liable if the dangerous character actually and proximately causes the plaintiff damages.

Question 33

Encroachment

Answer 33

A continuing trespass that occurs when the defanant builds a structure partly on her land/partly on defendants land.

Answer 34

TRESPASS TO CHATTEL: P must show 1) an act by D that interferes with P’s right of possession in chattel; 2) intent; 3) causation; and 4) damages. CONVERSION: P must show 1) an act by D that interferes with P’s right of possession of chattel, 2) which is so serious that D must pay for chattel’s full value; 3) intent; and 4) causation. NOTE: even a BFP of chattel may be guilty when chattel has been stolen from its true owner.

Question 35

Torts invading intangible personal interests - what happens at victim's death

Answer 35

torts invading intangible personal interests (for example, defamation, invasion of right of privacy, malicious prosecution) expire upon the victim’s death

Question 36

Qualified privilege - Defamation

Answer 36

Qualified privilege extends to statements made to protect the pub lisher’s interests if the defamation relates directly to those interests, or for the protection of the recipient or a third party, or to act in the public interest or report on public proceedings. This privilege can be lost if the defendant abuses it by acting with actual malice or publish ing the statement excessively when it is not reasonably necessary.

Question 37

slander per se

Answer 37

Verbal statement about (1) harms business rep (2) laothsome disease (3) implies criminal conduct (4) implies sexual conduct