Torts

Question 1

Prima Facie Case for Intentional Torts

Answer 1

(1) Act by D - some volitional movement

(2) Intent - specific or general

(3) Causation - substantial factor bringing about resulting harm

(4) Damages - compensatory (punitive available if malice)

Question 2

Transferred Intent Doctrine

Answer 2

arises when D acts with the intent to commit a given tort (assault, battery, false imprisonment, trespass) but:

(1) different person same tort
(2) same person different tort
(3) different person different tort

D’s original intent transfers to the tort actually committed and/or person actually harmed resulting in D’s liability.

Question 3

Assault

Answer 3

An intentional act by D creating P’s rxnable apprehension of immediate harmful or offensive contact to P’s person, or something closely attached to P’s person (e.g. hat/bag/cane)

Elements:
(1) Act by D that creates reasonable apprehension in P
(2) Of immediate harmful or offensive conduct to P’s person
(3) Intent
(4) Causation

Question 4

Reasonable Apprehension (Assault)

Answer 4

P has an awareness of D’s act and has a reasonable expectation that it will result in immediate harmful or offensive conduct to P’s person

Beware fact patterns where D appears incapable of accomplishing the threatened harm - Apparent ability is sufficient as long as it could reasonably create P’s apprehension.

Question 5

Immediate Harmful or Offensive Contact (Assault)

Answer 5

P must apprehend an immediate or imminent battery

Words or threats are usually insufficient, unless coupled with an overt act (e.g. picking up a weapon, clenching fist)

Threats of future battery are insufficient

Question 6

Battery

Answer 6

An intentional harmful or offensive contact to P’s person by D.

Elements:
(1) Harmful or offensive contact (causes pain/injury/etc) - considered offensive by a reasonable person and P has not consented

(2) To P’s person (including attachments)

(3) Intent

(4) Causation (indirect contact is sufficient i.e. greasing a floor)

Question 7

False Imprisonment

Answer 7

An intentional act by D resulting in P’s restraint or confinement to a bounded area

Elements:

(1) Act or commission resulting in P’s restraint or confinement
-does not have to be physical
-duration not important

(2) P is confined to a bounded area (P’s freedom of movement is limited)
- P must be aware of or harmed by confinement
- P must not be aware of any rxnable means of escape
- if rxnable person could escape then its NOT false imprisonment

(3) Intent
(4) Causation

Question 8

Shopkeeper’s Privilege

Answer 8

a store may detain a suspected thief IF:

(1) Store has rxnable cause to believe a theft occurred;
(2) Store detains suspect in a rxnable manner (non-deadly force) for purposes of investigation; and
(3) Detention is rxnable in length and scope

Question 9

IIED

Answer 9

Extreme and Outrageous conduct by D causing P’s severe emotional distress

Elements:
(1) Extreme and Outrageous conduct by D
- Exceeds the bonds of decency in society
- MUST BE outrageous to a rxn person UNLESS:
(a) D targets P’s known weakness
(b) D’s conduct is continuous/repetitive
(c) D targets a P who is a member of fragile class (i.e. young/old, pregnant)
(d) D is a common carrier/innkeeper

(2) Several Emotional Distress in P
- P must suffer
- Physical symptoms not required

(3) Intent OR RECKLESSNESS (i.e. disregard of likely consequences)

(4) Causation

Question 10

IIED - Bystander

Answer 10

When a D’s conduct is directed at a third person and P (the bystander) suffers severe emotional distress, P must prove the same IIEd elements with the additional intent and causation requirements

Bystander req:
(1) P was present
(2) P was a close relative of TP, or distress resulted in bodily harm; and
(3) D knew these facts

Question 11

Trespass to Land

Answer 11

A physical entry of P’s real property by D without consent

Elements:
(1) Physical entry of P’s real property by D
- Enters or propel’s object onto
- P lawful possession (not only ownership)
- PHYSICAL does not mean light/smell/sound
- Includes surface and reasonable air/ground

(2) Intent
- intent to enter even if by reasonable mistake
- Does not need to know it belongs to another

(3) Causation

Actual damages not required

Question 12

Trespass to Chattel & Conversion

Answer 12

Two separate but similar torts; the difference is the level of interference with P’s property and the damages P can recover

Elements
(1) D intentionally interferes wit P’s right to possession in tangible personal property
- interference usually = dispossession or damaging chattel
- trespass = minor interference or damage
- conversion = significant interference or damage that justifies full value

(2) Intent

(3) Causation

(4) Damages
Trespass - cost of repair or rental value
Conversion - P can recover full market value at time of conversion or repossess (replevin)

Question 13

Consent

Answer 13

A defense to all intentional torts. If P consents to D’s otherwise tortious conduct, D is not liable

P must be capable of consenting (drunks/mentally impaired/young children incapable)

D can be held liable for conduct that exceeds scope of P’s valid consent

Question 14

Express Consent

Answer 14

P gives D verbal or written consent

Nullified by duress, fraud, or mistake

Question 15

Implied Consent

Answer 15

D can reasonably infer P’s consent based on custom or P’s observable conduct

(1) often arises in P participates in an activity or goes to a place where torts are common (e.g. tackle football)

(2) Consent is usually implied for ordinary contacts of daily life (e.g. brushing against someone on crowded street)

(3) Facts must indicate that based on P’s objective conduct, D was reasonable in interpreting P’s consent.

Question 16

Requirements for all Defenses

Answer 16

(1) Reasonable belief - D must reasonably believe a tort is being or about to be committed

(2) Proper timing - tort must be in progress or imminent

(3) Reasonable force - must be proportionate to threat of harm (i.e. Deadly force allowed if D reasonably believes a life is in danger but not to protect property)

Question 17

Self Defense

Answer 17

No duty to retreat (except minority that impose if it can be done safely)

Only available to initial aggressor if initial threat has terminated or D responds to non-deadly force with deadly force

Question 18

Defense of others

Answer 18

D must have a rxnable belief that the person he is aiding would have the right of self-defense

D may use as much as force as he could have used if the injury was threatened to him (i.e. self defense)

Question 19

Defense of property

Answer 19

Available to prevent tort against property

Reasonable force may be used but force that is deadly or causes serious harm is not allowed

Unavailable if initial actor had privilege to enter land (e.g. recapturing chattel)

Reasonable mistake only allowed as to whether an intrusion occurred, not whether privilege existed.

Question 20

Necessity

Answer 20

a defense to torts against property in which D damages P’s property in an effort to avoid greater danger

Requirements
(1) D’s interference with P’s property must be reasonably necessary to avoid an immediate threatened injury

(2) Threatened injury must be more serious than the interference undertake to avert it

Question 21

Public Necessity

Answer 21

Absolute defense (P cannot recover damages)

D’s invasion of P’s property must be reasonably necessary to protect the community or a large group

Question 22

Private Necessity

Answer 22

Limited defense (P can only recover damages for actual harm to P’s property, unless D trespassed for P’s benefit)

D invades P’s property to protect his own or self or small group

Question 23

Property Owner Liability

Answer 23

if an owner repels or expels a trespasser who interfered with or invaded owner’s property out of a valid necessity (e.g. P seeks shelter from terrible store), owner will be liable for any damage caused

Question 24

Recapture of Chattels

Answer 24

D has a legal privilege to use peaceful means to recover possession of chattel taken unlawfully, and to use reasonable non-deadly force if in fresh pursuit of the chattel taker (defense to assault and battery and FI)

Limitations/Requirements:
(1) D owner must make a timely demand for return of chattel (unless futile/dangerous)

(2) D owner may recapture from original wrongdoer or a third party who knows the chattel was wrongfully obtained

(3) Recapture not available if in the hands of an innocent party

NO DEADLY FORCE

Question 25

Defamation

Answer 25

a false statement concerning P, made by D to at least one person other than P, that is harmful to P's reputation Elements: (1) Falsity (not true) (2) Defamatory statement (hurts P's rep) (3) Concerning P (reasonably understood to concern P) (4) Publication (made intentionally or negligently to a third person) (5) Harmful to P's rep

Question 26

Liability for reproduction of a defamatory statement

Answer 26

republisher is liable to the same extent as original ISPs are not liable

Question 27

Defamation Damages

Answer 27

P's burden of proving damages relies on the type of plaintiff, if statement is a matter of public concern or if it is standard per see Truth is a complete defense No requirement at common law for P to prove fault

Question 28

Constitutional Considerations for Defamation

Answer 28

When defamation concerns a public figure, public official and/or matter of public consent Public Figure = pervasive fame or notoriety or who assumes voluntarily a central role in a public matter Public Official = public officer holder Additional Elements: (1) P must prove D was at fault - for Public Figure/Official = actual malice standard (knowledge or reckless disregard) - private figure - negligence standard (2) Falsity - Public officials/figres must prove the falsity - Private figures must prove falsity only if speech pertains to a matter of public concern - otherwise D must prove truth

Question 29

Defamation - Damages Considerations

Answer 29

Damages depend on the type of plaintiff, content, and whether the statement constitutes libel, slander or slander per se

Question 30

Libel

Answer 30

A written defamatory statement (1) Public figures and officials who prove actual malice may recover presumed damages for reputational harm without any proof (2) Private figures who prove negligence may recover presumed damages only if the speech relates to a matter of private concern (otherwise only proved actual damages) TV/radio considered libel

Question 31

Slander

Answer 31

A spoken, defamatory statement (1) P must prove "special damages" unless the state constitutes slander per se Special damages = specific economic loss Slander Per Se - defamatory statement that either: (1) adversely reflects on P's business/professional rep (2) Claims P has loathsome disease (3) Claims P committed a crime of moral turpitude, or (4) Imputes P's chastity

Question 32

Defenses to Defamation

Answer 32

Consent, truth, and privilege may be valid Consent - P consents to one or more required elements Truth - allegedly defamatory statements are true Privilege - certain types of statements are privileged (1) Absolute - protects statements by govt. officials in their official capacity (2) Qualified - D's liability for defamatory statements is limited where: (1) D invites statement and/or recipient has an interest (i.e. letter of rec); (2) Statement is in the public interest

Question 33

Appropriation

Answer 33

use of P's name or likeness for commercial purposes (e.g. promotion or advertisement) without P's consent Newsworthiness exception allows for P's name and likeness to be used for the purpose of reporting news

Question 34

False Light

Answer 34

widespread publication of a falsehood or material misrepresentation about P that would be highly offensive to a reasonable person Includes mischaracterization of P's views/conduct Actual malice for matters of public concern No newsworthiness exception

Question 35

Appropriation & False Light Defenses

Answer 35

Consent Privilege (false light) Truth is NOT a valid defense to invasion of privacy claims

Question 36

Intrusion Upon Seclusion

Answer 36

intrusion upon P's private affairs in a manner that would be highly offensive to a reasonable person Requirements (1) P must have a rxnable expectation of privacy (2) Intrusion must be highly offensive (e.g. peeping, eavesdropping, hidden camera on P's domain) No newsworthiness exception Consent/Privilege valid defenses

Question 37

Disclosure

Answer 37

public disclosure of P's private information Requirements: (1) Highly offensive to a rxnable person (2) Publicized No liability if private facts are newsworthy Consent/Privilege valid defenses

Question 38

Malicious Prosecution

Answer 38

D initiates a frivolous charge or claim against P with an improper purpose (e.g. filing false police report) Elements: (1) D commences a prior criminal or civil legal proceeding against P (prosecutors are immune) (2) Prior proceeding terminated in P's favor (3) No probable cause for the original proceeding (i.e D knew P was not guilty or liable or had insufficient facts to reasonably believe in P's guilt) (4) D had an improper purpose for initiating the proceeding (5) Damages

Question 39

Intentional Misrepresentation (Fraud, Deceit)

Answer 39

Elements: (1) D misreps a past or present material fact (2) D knows or believes the misrep is false (3) D intends to induce P to act or refrain in reliance on the misrep (4) Actual reliance by P (causation) (5) Justifiable reliance by P (6) Damages

Question 40

Abuse of Process

Answer 40

D uses the legal system as an ulterior purpose to threaten or act against P Elements (1) Wrongful use of process for ulterior purpose (2) Definite act or threat against P to accomplish an ulterior purpose

Question 41

Negligent Misrepresentation

Answer 41

Elements: (1) D misrepresents a past or present material fact in a business or professional setting (2) Breach of duty of care owed to a particular P (i.e., D knew P could rely on the misrepresentation) (3) Actual or justifiable reliance by P (4) Damages - monetary.

Question 42

Intentional Interference with Business Relations

Answer 42

Arises when a third party interferes with ane existing contract Elements: (1) P has a valid contractual relationship or business expectancy (2) D has knowledge of relationship/expectancy (3) D intentionally interferes with that relationship (4) D interference causes a breach or termination in P's contract or expectancy (5) Damages Privilege Defense - D's conduct may be privileged when it is a proper attempt to obtain business or protect interest (i.e. competing for customers)

Question 43

Negligence Basics

Answer 43

Negligence is analyzed under an objective standard by comparing D's actions to a reasonable person under the same or similar circumstances

Question 44

Negligence Elements

Answer 44

(1) Duty of Care - Duty to conform to specific standard of care (typically the reasonably prudent person standard) (2) Breach of Duty (3) Causation - Actual Cause AND Proximate Cause (Factual / Legal respective) (4) Damages

Question 45

Duty of care

Answer 45

D owes a duty of care to behave like a reasonably prudent person to all foreseeable plaintiffs in the zone of danger Default Standard of Care is RPP (reasonably prudent person) under the circumstances. D's physical characteristics with the knowledge and mental capacity of an ordinary person.

Question 46

Foreseeable Victims

Answer 46

those within the zone of danger. Zone of Danger is the area around D's activities in which a P could foreseeably be injured.

Question 47

Rescuers Exception

Answer 47

if D puts himself or another in danger and a third person attempts to rescue, D can be held liable for the rescuers injuries even if unforeseeable Does not apply to emergency personnel if its an injury resulting from risk inherent to the job

Question 48

Specialized Standards of Care - Children

Answer 48

Children are held to the standard of care of a reasonable child of similar age, education, intelligence and experience. <5 lack capacity to be negligent Adult activities exception - Children engaged in adult activities must conform to an adult standard of care in that activity

Question 49

Specialized Standards of Care - Common Carriers/Inn Keepers

Answer 49

held to an "utmost care" standard Liable for even slight negligence to passengers or guests

Question 50

Specialized Standards of Care - Custom or Usage in Industry

Answer 50

Can be used to establish a standard of care but failure to adhere does not automatically give rise to a breach of duty, nor does compliance with an industry custom automatically establish lack of negligence

Question 51

Specialized Standards of Care - Professionals

Answer 51

must act with the knwoledge and skill of a member of their profession in good standing in similar communities Medical Professionals = national standard of care

Question 52

Statutory Standards of Care

Answer 52

An existing statute may establish a SOC in which case the SOC imposed by statute will replace general common law. Requirements: (1) P must prove that harm suffered is the type the statute was meant to prevent; (2) P is in class of victims statute was meant to protect; and (3) Statute applies a standard of conduct Stautory SOC does not apply if: (1) compliance is more dangerous than non-compliance; or (2) compliance is impossible under the circumstances

Question 53

Negligence Per Se

Answer 53

violation of the statute means P must only prove causation not breach Majority says violation of statute establishes a conclusive presumption of duty and breach Compliance does not automatically clear D of liability

Question 54

Duty for Owners & Occupiers of Land to Trespassers

Answer 54

Owners and occupiers of land may have a duty of care for anticipated trespassers and child trespassers

Question 55

Unknown or Undiscovered trespassers (duty)

Answer 55

No duty owed

Question 56

Anticipated Trespassers

Answer 56

Where owner has reason to believe of trespassers on her land (1) Activities - owner has duty of rxnable care in carrying out activities on her property (2) Dangerous Conditions - owner has a duty to make safe or warn of any known, concealed, man-made hazards (traps, etc)

Question 57

Attractive Nuisance Doctrine for Child Trespassers

Answer 57

Owner must take rxnable care to eliminate dangers on her property or protect children from those dangers IF: (1) She is aware or should be aware of the dangerous condition (2) She knows or should know children are in the vicinity (3) The condition is likely to cause injury given a child's inability to appreciate risk; and (4) The magnitude of the risk outweighs its utility or the expense of remedying it

Question 58

Licensees

Answer 58

A licensee is one who enters land with owner's permission for his own purpose or business (i.e. not for landowners benefit) e.g. relatives, friends, social guests

Question 59

Invitees

Answer 59

one who enters land held open to the public or who enters with owner's permission to confer a commercial benefit e.g. store patron, concert-goer

Question 60

Duty of care owed to Licensees/Invitees

Answer 60

(1) Activities carried out on property - reasonable care (2) Known dangerous conditions - duty to warn or make safe (3) Duty to inspect - - N/A for licensees - Invitees - owners have duty to conduct a rxnable inspection for non-obvious dangers and make them safe May be non-delegable - businesses that hold property open to the public have a non-delegable duty to keep premises safe for customers SCOPE - owners duty extends only to those areas where one is an invitee or licensee

Question 61

Breach of Duty

Answer 61

D breaches his duty when his conduct falls short of the standard of care owed under the circumstances P can argue: (1) D breached the applicable Standard of Care - RPP standard - Negligence per see - Specialized standard of care - Custom or usage in an Industry (2) Res Ipsa Loquitir

Question 62

Res Ipsa Loquitir

Answer 62

the very occurrence of the accident causing P's injuries suggests negligent conduct. Arises if facts cannot establish breach of duty b/c circumstances surrounding the event are unknown to P Requirements - P must show: (1) Inference of negligence - the harm would not normally occur absent negligence (2) Attributable to D 0 this type of harm normally result from negligence by one in D's position - often satisfied by showing that the injury causing instrument was in D's exclusive control (3) Injury was not attributable to P

Question 63

Actual Case

Answer 63

Establishes a casual connection between the alleged breach of duty and the resulting injury "But-for" Test - but for D's alleged breach of duty, P's injury would not have occurred

Question 64

Actual Cause Substantial Factor Test

Answer 64

For multiple causes of P's injury D's breach is the actual cause if it was a substantial factor in bringing about P's injury Application - used if multiple causes bring about P's injury and any one of them alone would have cause the injury

Question 65

Actual Cause Burden Shifting Test

Answer 65

for several possible causes of P's injury Application - used if multiple D's act (often simultaneously) only one cause P's injury but its unclear which D caused the injury e.g. stray bullet quail hunting case Burden of proving actual cause shifts to Ds (if no D can prove another was responsible, all Ds share jointly and severally)

Question 66

Proximate Cause

Answer 66

Establishes that it is fair under the law to hold D responsible for P's injuries Foreseeability is the measuring stick of Proximate Cause - D is liable for the foreseeable outcome of his conduct - The outcome does not have to be likely to be foreseeable ("reasonably possible") Note: this is a question of fact that is usually left to jury

Question 67

Proximate Cause (Direct vs. Indirect)

Answer 67

Direct - if P's injury is the direct consequence of D's negligent conduct, D is liable unless the outcome is unusually bizarre or unpredictable Indirect - intervening forces that occur after D's conduct to cause P's injuries will not cut off D's liability if they are foreseeable An intervening force is usually foreseeable if either: (1) it is a normal response or reaction to D's negligent act, or (2) D's negligence increased the risk that an intervening force would cause harm to P Injuries to rescuers usually considered foreseeable

Question 68

Eggshell Plaintiff Rule

Answer 68

D takes P as he finds him and is liable for the full extent of P's injuries regardless of whether they are foreseeable

Question 69

Damages

Answer 69

P must prove damages, which are not presumed in negligence cases; nominal damages are not available P has a duty to take reasonable steps to mitigate damages

Question 70

Personal Injury Damages

Answer 70

D must compensate P for all damages related to personal injury Past, Present, Prospective damages both economic and non-economic

Question 71

Property Damages

Answer 71

P can recover reasonable costs of repair or fair market value in the case of irrepair.

Question 72

Punitive Damages

Answer 72

only recoverable if D's conduct is wanton and willful, reckless, or malicious (more common w/ intentional torts)

Question 73

Non-recoverable Damages

Answer 73

P can never recover for (1) Interest from the date of damage in personal injury case (2) Attorney's fees

Question 74

Comparative Negligence

Answer 74

D can establish that P's injuries are at least partially the result of P's own negligence (1) Fact-finder apportions fault between the P and D by percentage and reduces P's recoverable damages accordingly (2) Partial/modified comparative negligence - P can only recover damages if he was less than 50% at fault (or 50% or less in some states and over 50% can make claim inactionable) (3) Pure comparative negligence - P can recover damages even if he was more than 50% at fault

Question 75

Contributory Negligence

Answer 75

P is barred from recovery if D establishes that P's negligence contributed to her injuries Last clear chance defense - P can rebut D's contributory negligence claim by proving D had the least clear chance to avoid the injury-causing accident

Question 76

Assumption of Risk

Answer 76

D can deny P's recovery by establishing that P assumed the risk of damage caused by D's act Requirements - D must show: (1) P knew the risk (subjective, knowledge can be inferred) and (2) P voluntarily proceeded in the face of that risk Expression assumption - P can assume by agreement (e.g. exculpatory clause); less likely to be enforced if part of adhesion K

Question 77

Negligent Infliction of Emotional Distress

Answer 77

P may recover for emotional distress resulting from D's negligence Elements: (1) D's negligence results in a close risk of bodily harm to P - P must be in zone of danger (2) D's negligence results in P's severe emotional distress (3) P exhibits some physical manifestation attributable to her emotional distress - states are split on physical vs. non-physical symptoms .. many allow severe emotional distress alone In special situations P may still recover even if elements above are not met if D's negligence creates a great likelihood of emotional distress (e.g. erroneous report of relatives death, mishandling of a corpse, etc)

Question 78

NIED - Bystander Claims

Answer 78

Outside the zone of danger bystanders may recover for emotional distress if (1) P and the injured person are closely related; (2) P was present at the scene of the injury; and (3) P personally observed or perceived the event

Question 79

Strict Liabiliy - Prima Facie Case

Answer 79

Under SL, D has an absolute duty to make activities safe P can establish D's liability for P's injuries without proving D acted negligently Limited to cases involved: (1) Ultrahazardous and/or abnormally dangerous conditions (2) Animal conduct (3) Products liability Prima Facie Case: (1) Nature of D's activity imposes absolute duty to make safe (2) Causation - actual and proximate - dangerous aspects of D's activity caused P's injury - D generally liabel only for foreseeable Ps (3) Damages to P's person or property Defenses - assumption of risk; comparative negligence

Question 80

Abnormally dangerous conditions

Answer 80

Requirements: (1) Severe Risk - condition or activity imposes a severe risk of harm to persons or property (2) Cannot be made safe - reasonably (3) Uncommon - condition or activity is uncommon in the community Typically explosive, toxic, biohazardous materials Injury must result from the activity

Question 81

Animal Conduct

Answer 81

Trespassing animals - reasonably foreseeable damage resulting from the trespass Wild Animals - SL to licenses and invitees for unprovoked injuries Domestic Animals - No SL unless owners know of the animal's unusually dangerous propensities Trespassers cannot recover under SL

Question 82

Products Liability

Answer 82

Elements: (1) D is a commercial supplier - strict duty to supply safe goods - Commercial supplier is one who routinely deals in the product sold including any merchant in the stream of commerce (2) Product is defective making it unreasonably dangerous (3) Defective product was the actual and proximate cause of P's injury - must not be substantially altered between leaving supplier and reaching consumer (4) P used the product in a foreseeable manner (includes misuse) Both foreseeable users and bystanders can sue

Question 83

Manufacturing Defect

Answer 83

product departs from its intended design causing it to be more dangerous than all of the manufacturer's other products or same kind Requirements: P must show that the product failed to perform as safely as an ordinary consumer would expect

Question 84

Design defect

Answer 84

product creates an unreasonable risk of danger due to its faulty design Requirements: P must show a technologically and economically feasible alternative design or modification that would be safer as to the risk as issue

Question 85

Inadequate Warning

Answer 85

manufacturer fails to adequately warn of a non-obvious risk associated with a product's use including from foreseeable dangers from misuse Requirements: P must show that the product failed to have clear and complete warnings of any dangers that would not have been ordinarily apparent to consumers Unavoidably unsafe products (chainsaw/firearms) then manufacturer must give (1) proper instructions and (2) adequate warnings

Question 86

Products liability negligence theory

Answer 86

P may establish liability for product defect under negligence theory Duty is owed by all commercial suppliers to all foreseeable product users and bystanders Breach leads to the supplying of defective product - but retail/wholesalers can satisfy due care with a cursory inspection Causation factual and proximate Damages (economic alone not recoverable)

Question 87

Implied Warranty of Merchantability

Answer 87

Seller warrants that goods are of average acceptable quality (i.e. without defects) and generally fit for their ordinary purpose Extends to buyers family, household, and guests who suffer personal injury Warranty + Breach + Casuastion + Damages with usually AOR and Comparative Neg defenses

Question 88

Implied Warranty of Fitness for Particular Purpose

Answer 88

If seller (a) knows or has reason to know the particular purpose for which buyer is purchasing, and (b) buyer relies on seller's skills or judgment, seller implies that goods are fit for that purpose e.g. shoe store salesperson helping to find ideal running shoes. Extends to buyers family, household, and guests who suffer personal injury Warranty + Breach + Casuastion + Damages with usually AOR and Comparative Neg defenses

Question 89

Liability based on Representation

Answer 89

D may be liable if a product falls short of an affirmative representation made to buyer EXpress Warranty - statement of material fact or promise regarding goods sold that becomes part of the basis for the bargain Any consumer or bystander can sue for breach Same elements as implied warranty.

Question 90

Misrepresentation of Fact

Answer 90

Seller will be liable for any misrepresentation made in the course of a sale if: (1) Seller made the misrep regarding a material fact concerning the quality or use of the goods; (2) Seller intended to induce reliance by buyer; and (3) The misrep induced justifiable reliance

Question 91

Nuisance

Answer 91

An intentional invasion of either public or private property rights that substantially and unreasonable interferes with the peaceful and quiet enjoyment of these rights

Question 92

Private Nuisance

Answer 92

Substantial, unreasonable interference with another individual's use or enjoyment of her property Substantial interference - must be offensive, annoying, or inconvenient to the average person in the community. Interference is NOT substantial if P is hypersensitive or using for abnormal purpose Unreasonable interference - severity of P's injury must outweigh the utility of D's conduct Interference can be substantial but not unreasonable

Question 93

Public Nuisance

Answer 93

unreasonable interference with health, safety, or property rights of the community at large Recovery is only available to a private party if she suffered unique damage not suffered by the public at large

Question 94

Coming to the Nuisance

Answer 94

P can generally "come to a nuisance" (buying land next to an already existing nuisance) and pursue an action as long as P did not come to the nuisance for the sole purpose of bringing a lawsuit

Question 95

Vicarious Liability

Answer 95

Arises when D commits a tort against P and a third person is held liable due to his relationship with D

Question 96

Respondeat Superior

Answer 96

employers are liable for torts committed by employees within the scope of their employment Intentional Torts - usually outside the scope unless: (1) Job requires force (bouncer) (2) Job entails creating friction (bail bondsman) (3) The intentional tort is done in furtherance of the employer's goals (breaking up fights in a store)

Question 97

Independent Contractors

Answer 97

employers are generally not liable for torts committed by independent contractors, except for acts that are inherently dangerous or duties that are non-delegable holding property open to the public creates the non-delegable duty to keep premises safe for public

Question 98

Partnership Liability

Answer 98

each partner is vicariously liable for any other partner's torts committed within scope of that partnership

Question 99

Parent-Child Liability

Answer 99

Parents are not liable for their childrens torts BUT parents may be separately negligent if they had reason to know of a child propensity to injure or they facilitated the tort

Question 100

Tavernkeepers Liability

Answer 100

businesses serving alcohol may be held liabel to a P injured by an intoxicated patron if the business was negligent in serving the patron

Question 101

Joint and Several Liability

Answer 101

arises if the acts of two or more D's combine to produce a single indivisible injury Each D is JSL for the entire harm if his actions were a factor More states have replaced w/ apportionment by percentages of fault Satisfaction - fully recovery from 1 D = fully recovered

Question 102

Contribution (JSL)

Answer 102

A D who pays more than her share of damages under JSL can assert a claim against other parties for excess paid

Question 103

Indemnity

Answer 103

involves shifting the entire loss between or amongst Ds