Torts Flashcards
(59 cards)
What sorts of damages are recoverable in a personal injury suit?
1) Actual damages incurred
2) Past and future pain and suffering (emotional distress)
3) Medical expenses
4) Lost wages and reduction in future earnings capacity
5) Loss of Consortium
Attorney fees are never recoverable.
What is trespass and what count’s as a physical invasion?
Trespass is a defendant’s intentional conduct that causes a physical invasion of the land of another. Includes:
1) Physically entering land
2) Intentionally flooding land
3) Throwing an object onto the land
4) Intentionally emitting particles into the air over the land
What are the types of defects that are relevant for a strict product liability claim?
Product is defective when, at the time of sale or distribution, it contains:
1) Manufacturing defect
2) Design defect
3) Inadequate instructions or warnings
When is a third party seller liable under strict products liability?
If the third party is in the business of selling the product.
Is a defendant criminally liable for failing to help others in trouble?
No, although a special relationship may place a legal duty on the defendant to act in certain instances.
How can someone be liable as an accomplice?
1) Aids or abets a principal
2) Prior or during commission of crime
3) With the intent and purpose of promoting or facilitating the commission of the crime
Regarding Voluntary Manslaughter, are provocative words adequate to arouse a sudden or intense passion to which the defendant loses control?
No!
When is the rare time that mistake of law is a proper defense?
When the mistake negates the required intent or mental state.
EX: Daniel breaks into someone’s home, intending to use their flat screen TV. Daniel mistakenly thinks that doing so is a felony. Even if Daniel intended to commit what they believed was a felony, it was NOT a felony; therefore, I did not have the specific intent to commit a felony!
May an occupant use deadly force against an intruder existing the occupant’s dwelling?
No!
When is there a right to use deadly force in defense of property?
Generally, there is no right….
UNLESS! Person uses deadly force to prevent or terminate forcible entry into a dwelling if occupant reasonably believes intruder intents to commit a felony.
What is an abnormally dangerous activity and for what sort of suit is it relevant for?
ABA:
1) With high risk of harm
2) Not commonly found in community
3) Risk cannot be eliminated with due care
[Must show actual/proximate cause and actual damages]
Is a strict liability tort!
What is a defense towards strict liability crimes?
Assumption of the Risk
Where plaintiff voluntarily and knowingly assumed risk of their behavior!
How do you prove a manufacturing defect?
Demonstrate a deviation from what manufacture intended.
1) Product was defective
2) Defect existed at time product left defendant’s control
3) Defect caused plaintiffs injuries when product was used in an intended or reasonably foreseeable way.
How do you prove a design defect?
Two ways:
Consumer Expectation Test: Show that product is dangerous beyond the expectation of an ordinary customer.
Risk-Utility Test: Plaintiff shows that a reasonable alternative design, that is economically feasible, was available to the defendant and failure to do so rendered the product unreasonably safe.
How do you demonstrate a defect for failure to warn?
Occurs when there are
1) Foreseeable harms
2) Not obvious to ordinary user
3) Which could have been reduced/avoided with reasonable instructions or warnings.
What defenses are used for a strict product liability tort?
Contributory Negligence: Complete bar when plaintiffs fault consisted of unreasonably proceeding in face of known defect
** Pure Comparative Negligence**: Damages reduced based on the the proportion of plaintiff’s fault.
Assumption of the Risk: Complete bar if voluntarily and knowingly assumed risk.
Who has standing to bring a public nuisance claim?
1) The government
2) A private party, if the person can show they suffered a special injury that is different to the kind suffered by general public.
What is the learned intermediary rule?
The manufacturer of a prescription drug or medical device typically satisfies its duty to warn by informing the prescribing physician of problems with the drug or device rather than informing the patient taking the drug.
What is a wrongful death claim?
When a decedent’s spouse, next of kin, or personal representative brings suit to recover losses suffered as a result of the decedent’s death.
Generally, can recover:
1) Loss of Support (Income)
2) Loss of companionship
Limited to what deceased would have recovered if lived!
**Not pain and suffering!*
What is the intent requirement for intentional infliction of emotional distress?
1) Intentionally caused severe emotional distress
2) Recklessly causes severe emotional distress
When is a possessor of a wild animal strictly liable for injuries caused by the animal?
When the injuries that occur result from the dangerous propensities of the animal.
When is a supplier of a component strictly liable for the failure of a product that uses it’s component?
1) Component itself is defective
2) Supplier substantially participates in process and component causes the defect.
Generally, how can an individual recover through a theory of negligent infliction of emotional distress?
1) Was within the zone of danger of threatened impact
2) Threat of physical impact caused emotional distress
(Emotional distress = physical symptoms!)
For someone not within the zone of danger, how can an individual recover under a theory of negligent infliction of emotional distress?
1) Closely related to person injured
2) Present at the scene of the injury
3) Personally observed or perceived the injury
