Torts Flashcards

Question

Conversion (torts)

Answer 1

Conversion is an intentional act by the defendant that: y Deprives the plaintiff of possession of a chattel or y So seriously interferes with the chattel that it deprives the plaintiff of its use. Only the intent to do the interfering act is needed, but transferred intent does not apply. Like trespass to chattels, a defendant’s mistake of law or fact is not a defense. Damages amount to the full value of the converted property at the time of the conversion. Alternatively, the plaintiff may bring an action for replevin to recover the chattel.

Answer 2

The distinction between trespass to chattels and conversion depends on the degree seriousness of the interference. The following factors are considered: y The duration and extent of the interference y The intent to assert a right inconsistent with the rightful possessor y The defendant’s good faith, the expense or inconvenience to the plaintiff and y The extent of the harm to the chattel. The more extreme the interference, the more likely the court will find conversion rather than trespass to chattels.

Answer 3

Trespass to land requires the intent to enter the land or cause a physical invasion (e.g., throwing an object onto the land)—not the intent to commit a wrongful trespass. Transferred intent applies. And anyone in actual or constructive possession of the land is an appropriate plaintiff. No proof of actual damages is required because nominal damages may be awarded. However, necessity is a defense to trespass to land (as well as trespass to chattels and conversion). y Private necessity (qualified privilege) – Allows a limited number of people to enter or remain on land to protect themselves or their property from serious harm. However, the defendant is still responsible for actual damages. y Public necessity (absolute privilege) – Allows a trespass to protect a large number of people from public disaster (e.g., spreading of a fire). The defendant is not liable for damage if she acts reasonably. So even if there was no actual necessity, the defendant is not liable if she reasonably believed that there was.

Answer 4

Private nuisance is a substantial and unreasonable interference with another’s use or enjoyment of land. The interference must be intentional, reckless, negligent, or the result of abnormally dangerous conduct. y Substantial interference – One that would be offensive, inconvenient, or annoying to an average reasonable person in the community. y Unreasonable interference – One that makes the land unavailable for ordinary use or enjoyment and (1) is a per se nuisance, (2) does not comport with customs/expectations, (3) results from a failure to use reasonable care, (4) causes physical damage to land/fixtures, or (5) is motivated by malice. Anyone with possessory rights in the real property (or any member of that person’s household) is an appropriate plaintiff. Defenses include: y Regulatory compliance (incomplete defense) – Evidence of the defendant’s compliance is admissible but not determinative. Coming to the nuisance – Evidence that the plaintiff came to the nuisance does not entitle the defendant to judgment as a matter of law, but the jury may consider such evidence.

Answer 5

Public nuisance is an unreasonable interference with a right common to the general public. Private citizens are appropriate plaintiffs if they have suffered harm that is different in kind from the general public. And the same defenses that can be asserted for private nuisance apply to public nuisance.

Answer 6

The usual remedy is damages, but injunctive relief may be available if the balance of equities supports it.

Answer 7

Duty: obligation to protect another against unreasonable risk of injury Breach: The failure to meet that obligation. Causation: A close causal connection between the action and the injury. Damages: The harm suffered.

Answer 8

A duty of care is owed to anyone who may foreseeably be injured by the defendant’s failure to act as a reasonable person under the circumstances. Foreseeability of the Plaintiff y Cardozo (majority) view – The defendant is liable only to plaintiffs who are within the zone of foreseeable harm. y Andrews (minority) view – If the defendant can foresee harm to anyone due to his negligence, then a duty is owed to everyone harmed (foreseeable or not). The defendant may be liable for negligently putting the rescued party or the rescuer in danger. If the rescuer’s efforts are unreasonable, comparative responsibility applies. However, under the firefighter’s rule, emergency professionals cannot recover for injuries resulting from the risks of the job.

Answer 9

There is generally no duty to act affirmatively. But a duty to act affirmatively may be imposed: y If the defendant assumes a duty y If the defendant places another in peril y If the defendant has actual authority to control another (e.g., parent over child, employer over employee) y By a contract y By a relationship (e.g., employer-employee, parent-child, common carrier-passenger) y By a statute imposing an obligation to act for the protection of another

Answer 10

Reasonably Prudent Person This objective standard takes physical characteristics (e.g., blindness) into account but not mental ones. A defendant with special skills or knowledge must apply them with reasonable attention and care. A voluntarily intoxicated person is held to the same standard as a sober person. A child is held to the standard of a reasonable child of similar age, intelligence, and experience. But a child engaged in a high-risk, adult activity is held to an adult standard. A child under the age of five generally cannot be negligent.

Answer 11

y Common carriers (e.g., planes, trains, buses) are held to the highest duty of care consistent with the practical operation of the business. As a result, they can be held liable for “slight negligence.” y Innkeepers (hotel operators) are liable only for ordinary negligence. At common law, they could be held liable for slight negligence. y Automobile drivers owe ordinary care to their guests (nonpaying) as well as their passengers (paying), unless there is a guest statute. Guest statutes exist in a minority of jurisdictions and impose a duty to refrain from gross or wanton and willful misconduct with a guest in the car. y Gratuitous bailors need only inform the bailee of known dangerous defects. In contrast, compensated bailors must inform the bailee of defects that the bailor knows or should have known about with reasonable diligence. y Bailees in a bailment for the bailor’s sole benefit are liable only for gross negligence. Bailees who receive the sole benefit of the bailment must exercise extraordinary care. Bailees in a bailment for mutual benefit must exercise reasonable care.

Answer 12

Invitee: Inspect of unknown dangers, make safe or warn, and prevent harm from active operations (3rd: Exercise reasonable care under all circumstances). Licensees: Warn of concealed dangers that are known or should be obvious to the land possessor (3rd: Exercise reasonable care under all circumstances). Known or anticipated tresspassers: Warn of concealed artifical dangers (3rd: Exercise reasonable care under all circumstances). Other tresspassers: Refrain from willful, wanton, reckless, or intentional misconduct (e.g. traps).

Answer 13

Trespassing children – Under the attractive nuisance doctrine, land possessors are liable for injuries to trespassing children if: ○ An artificial condition poses an unreasonable risk of serious bodily injury to children ○ Children cannot discover or appreciate the danger ○ The utility of the condition is slight compared with the risk of injury and ○ The land possessor fails to exercise reasonable care.

Answer 14

Landlords are liable for injuries occurring (1) in common areas, (2) as a result of hidden dangers about which they fail to warn the tenant, (3) on premises leased for public use, (4) as a result of a hazard caused by negligent repair, or (5) as a result of a hazard that the landlord had agreed to repair. Conversely, tenants are liable for injuries arising from dangerous conditions within their control.

Answer 15

Landowners generally owe no duty to someone off the premises who is harmed by a natural condition (except for trees in urban areas). But for artificial conditions, landowners owe a duty to prevent an unreasonable risk of harm.

Answer 16

Sellers of real property have a duty to disclose to buyers any concealed and unreasonably dangerous conditions known to the seller. The seller’s liability continues until the buyer has a reasonable opportunity to discover and remedy the defect.

Answer 17

A breach of duty occurs when a defendant departs from the required standard of care, such as through failing to act as a reasonable person, through an unexcused violation of a statute, or—if there is no direct evidence—through res ipsa loquitur. Generally Under the traditional (majority) approach for determining negligent conduct (i.e., breach of duty), courts compare the defendant’s conduct with what a reasonably prudent person would have done under the circumstances (objective standard). The modern trend and the Third Restatement approach is to do a cost-benefit analysis. Courts consider the foreseeable likelihood that the defendant’s conduct would cause harm, the foreseeable severity of any resulting harm, and the defendant’s burden in avoiding the harm.

Answer 18

Custom evidence is admissible, but generally not conclusive, to establish the proper standard of care. But for professionals, deviation from or compliance with custom is dispositive evidence of a breach. Professionals are expected to use the same skill, knowledge, and care as an ordinary practitioner in the same community. Specialists may be held to a higher standard than general practitioners. An expert must establish the standard of care for a professional unless the negligence is so obvious that a layperson can identify it (e.g., a surgeon amputating the wrong leg). Physicians, including specialists, are held to a national standard in most jurisdictions. This departs from the traditional (minority) rule, under which physicians are held to a “same or similar locale” standard. Note that failure to comply with the “informed consent” doctrine amounts to medical negligence (i.e., malpractice) unless the risk is commonly known, the patient is unconscious, the patient waives or refuses the information, the patient is incompetent, or disclosure would be detrimental.

Answer 19

Negligence per se has four elements: y A criminal or regulatory statute imposes a specific duty for the protection of others. y The defendant violates the statute by failing to perform that duty. y The plaintiff is in the class of people intended to be protected by the statute. y The harm is of the type that the statute was intended to protect against. Once these elements are established, the defendant is liable for any injuries that were proximately caused by the violation of the statute. However, liability may be avoided if any of these defenses apply: y Compliance was impossible or more dangerous than violating the statute. y The violation was reasonable under the circumstances, or the defendant exercised reasonable care in attempting to comply with the statute. y The statutory requirements were confusing (e.g., vague or ambiguous). y Compliance with federal regulations preempts a common-law tort action.

Answer 20

Res ipsa loquitur is Latin for “the thing speaks for itself.” Under this doctrine, the trier of fact may infer the existence of a defendant’s negligent conduct in the absence of direct evidence of such negligence. This requires proof of each of the following: y The accident was of a kind that ordinarily does not occur in the absence of negligence. y The accident was caused by an agent/instrumentality within the exclusive control of the defendant. ○ Courts generously interpret this requirement. ○ Many courts ignore this requirement for products-liability cases if the manufacturer wrapped the package or it is clear that negligence occurred during production. ○ If several medical personnel had access to the plaintiff during surgery, some jurisdictions will presume that each defendant breached a duty of care unless each defendant rebuts. y The accident was not due to any action on the part of the plaintiff. Res ipsa loquitur merely reminds the trier of fact that circumstantial evidence can be sufficient to infer negligence. Accordingly, this doctrine does not apply if there is direct evidence of the cause of the injury.

Answer 21

A plaintiff must prove that the defendant’s actions were the cause of the plaintiff’s injury. Causation in negligence requires a showing of actual cause (i.e., “factual cause” or “cause in fact”) and proximate cause (i.e., “legal cause” or “scope of liability”).

Answer 22

The defendant’s tortious conduct is the factual cause of the plaintiff’s injury if the injury would not have occurred but for the defendant’s conduct. If there are multiple causes of the plaintiff’s injuries, the test is whether the defendant’s conduct was a substantial factor in causing those injuries. If it is unclear whose conduct caused the plaintiff’s injury,then the court may shift the burden to each defendant to prove that he did not cause the injury. Joint and several liability may apply if two or more defendants are each a factual cause of the plaintiff’s indivisible injury or if they acted with a common plan or design.

Answer 23

Proximate cause is a legal limitation on actual cause, focusing on foreseeability. y Majority rule – Defendants are liable for reasonably foreseeable consequences, so plaintiffs can recover if they were foreseeable victims of the defendant’s conduct. y Minority rule/Andrews test – Defendants are liable for all direct consequences of their conduct, and plaintiffs can recover if their harm was within the scope of liability of the defendant’s conduct

Answer 24

Events occurring after the defendant’s breach may impact the chain of causation between the defendant’s breach and the plaintiff’s harm. y An intervening cause is any cause that occurs after the defendant’s tortious act. y An unforeseeable intervening cause is a superseding cause that breaks the chain of proximate causation. Intervening negligence is always foreseeable and, therefore, is never a superseding cause that breaks the chain of causation. This is often tested in the context of medical malpractice.

Answer 25

The type of damages must be foreseeable, but under the eggshell-skull rule, the extent of the damages need not be. This means that a defendant may be liable for the full extent of a plaintiff’s injuries even if those injuries were worsened by the plaintiff’s preexisting condition.

Answer 26

The plaintiff must prove actual physical harm (i.e., bodily harm or property damage). A plaintiff with physical harm may add emotional distress as parasitic damages (e.g., NIED claims). However, pure economic loss, nominal damages, and attorney’s fees are not recoverable. The plaintiff may recover compensatory damages, the general measure of which is compensation that would make the victim whole. However, the plaintiff must take reasonable steps to mitigate damages. Failure to do so may reduce the damages the plaintiff can recover.

Answer 27

Damages for personal injury generally include medical and rehabilitative expenses (past and future), pain and suffering (past and future), as well as lost income and any reduction in future earnings capacity. Under the “eggshell-skull” or “thin-skull” rule, which applies to negligence as well as intentional torts, the defendant is liable for the full extent of the plaintiff’s injuries that are increased because of the plaintiff’s preexisting medical condition or vulnerability, even if the extent is unusual or unforeseeable.

Answer 28

Generally, the plaintiff may recover (1) the difference between the fair market value immediately before and after the injury or (2) the cost of repairs, if it does not exceed the value of the property.

Answer 29

Under the traditional collateral-source rule, benefits from outside sources (e.g., the plaintiff’s medical insurance) are not credited against the defendant’s liability. However, payments made by the defendant’s insurer are not from a collateral source and are credited against the defendant’s liability. Most states have eliminated or substantially modified this rule.

Answer 30

Punitive damages are recoverable if there is clear and convincing evidence that the defendant acted willfully and wantonly, recklessly, or with malice. Therefore, torts that inherently involve this state of mind or behavior often give rise to punitive damages. Awards generally cannot exceed a single-digit ratio between punitive and compensatory damages.

Answer 31

To recover under the zone-of-danger theory, the plaintiff must prove that she was in the zone of danger (i.e., feared for her safety) and that the threat of physical impact caused emotional distress. Under the majority rule, this emotional distress must be manifested by physical symptoms (e.g., nightmares, shock). But under the minority rule and the Third Restatement, physical symptoms are not required. A plaintiff outside the zone of danger can still recover under a bystander theory if the plaintiff is closely related to the person injured by the defendant, was present at the scene, and personally observed or perceived the injury. Under the majority rule, physical symptoms of emotional distress are required. No threat of physical impact or physical symptoms are required in special-relationship cases (e.g., a mortician mishandling a corpse, a common carrier mistakenly reporting the death of a relative).

Answer 32

Economic damages are only recoverable alongside related personal injury or property damage (i.e., no recovery for pure economic loss).q

Answer 33

In wrongful death actions, a decedent’s spouse, next of kin, or personal representative may bring suit to recover losses suffered as a result of a decedent’s death. This includes damages for loss of support, companionship, society, and affection (but not pain and suffering). Recovery is limited to whatever the deceased would have recovered had the deceased lived.

Answer 34

In survival actions, the representative of the decedent’s estate may pursue any claims that the decedent would have had at the time of death (including claims for pain and suffering). However, double recovery is not allowed if the jurisdiction recognizes both wrongful-death and survival actions.

Answer 35

A person may recover for loss of consortium and society resulting from a physical or emotional injury to a spouse or child.

Answer 36

A few states allow wrongful-life actions by a child based on the failure to properly perform a contraceptive procedure or diagnose a congenital defect. However, recovery is limited to special damages attributable to the child’s disability

Answer 37

Many states allow parents to recover for wrongful birth (failure to diagnose a defect) or wrongful pregnancy (failure to perform a contraceptive procedure). The mother can generally recover for the medical expenses of labor plus pain and suffering. If the child is disabled, then the parents may be able to recover damages for the medical expenses of caring for that child (and for emotional distress in some states).

Answer 38

Vicarious liability is a form of strict liability in which one person is liable for the tortious actions of another. It arises when a person has the right, ability, or duty to control the activities of another.

Answer 39

An employer is vicariously liable for an employee’s tortious conduct when (1) an employer-employee relationship exists and (2) the employee’s tortious conduct occurs within the employee’s scope of employment. However, an employer is not liable for an employee’s intentional torts except when: y The conduct involves work assigned by the employer (e.g., bouncer using force) y The employee’s tort is intended (at least in part) to benefit the employer or y The employee is acting with apparent authority (e.g., an employee with the power to sign contracts enters a fraudulent one). In addition to vicarious liability, an employer may be directly liable for negligently hiring, training, supervising, or otherwise controlling an employee.

Answer 40

A person who engages an independent contractor is generally not vicariously liable for the contractor’s torts, subject to the following exceptions: y The person retains control over the item that is the source of the tortious conduct. y The independent contractor is performing abnormally or inherently dangerous activities or nondelegable duties. y The independent contractor is acting with apparent agency. A person may also be liable for his own negligence in selecting or supervising an independent contractor.

Answer 41

Business partners and joint-enterprise participants may be liable for each other’s tortious acts that are committed within the scope of partnership/business purposes.

Answer 42

y Negligent entrustment – The owner of a vehicle (or any object with harmful potential) may be liable if the owner knew or should have known about the entrusted user’s negligent propensities. y Family purpose – In many jurisdictions, an automobile owner may be liable for the tortious acts of a family member driving the car with permission. y Owner-liability statutes – In many jurisdictions, an automobile owner may be statutorily liable for the tortious acts of anyone driving with permission

Answer 43

The general rule is that parents are not vicariously liable for their minor child’s torts unless the child was acting as their agent or a state statute applies. However, parents are directly liable for their own negligence if they fail to use reasonable care to prevent their child from intentionally or negligently harming someone else, provided the parents (1) can control the child and (2) know or should know about the necessity and opportunity for exercising control.

Answer 44

Many states recognize a cause of action against the seller of intoxicating beverages when a third party is injured because of the buyer’s intoxication. Most states limit liability to circumstances in which the buyer was a minor or intoxicated at the time of the sale. Additionally, many states extend liability to social hosts for injuries to intoxicated guests and/or third parties injured by intoxicated guests.

Answer 45

Under the Federal Tort Claims Act, the U.S. government waives immunity—and therefore can be liable—in tort actions, with these exceptions: (1) enumerated torts, (2) discretionary functions, (3) government contractor in a products-liability case (unless the contractor failed to warn or conform to government specifications), and (4) traditional government activities. Note that immunity is waived for intentional torts by law enforcement officers.

Answer 46

Most states have at least partially waived immunity, but states’ tort claims acts vary

Answer 47

– The liability of municipalities, other local governments, and their agencies is usually governed by state tort claims acts. Traditionally, immunity attached only to government functions.

Answer 48

– Immunity applies to the performance of discretionary functions entrusted to government officials by law, unless the official acts with malice or an improper purpose. There is no tort immunity for carrying out ministerial acts. Legislators performing their legislative functions, judges performing their judicial functions, and prosecutors are absolutely immune from personal liability

Answer 49

a government employee’s decision or judgment involving policy choices, rather than the mere execution of a set rule. If an act is discretionary, the government is immune from liability under the discretionary function exception—even if the decision was negligent.

Answer 50

Under the public-duty rule, there is no liability to any one citizen for the failure to fulfill a duty to the public at large unless that citizen has a special relationship with the municipality that creates a special duty

Answer 51

Interspousal immunity has been abolished in most states. Parent-child immunity is generally limited to core parenting activities.

Answer 52

Charitable immunity has been totally or partially eliminated in most states. However, some states cap the amount of damages recoverable from a charitable institution.

Answer 53

Under the doctrine of joint and several liability (default rule on the MBE), each of two or more defendants who are found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm.

Answer 54

However, most jurisdictions instead recognized pure and several liability, under which each defendant is liable only for his proportionate share of the plaintiff’s damages.

Answer 55

Under joint and several liability, a defendant who pays more than his fair share of damages for the common liability can sue the other defendants for contribution and recover anything paid in excess of his fair share. A defendant seeking contribution from another defendant must prove that the other would have been liable to the plaintiff for the amount sought as contribution. However, an intentional tortfeasor generally cannot seek contribution from another tortfeasor.

Answer 56

Even when several tortfeasors may be subject to liability to the plaintiff for the entire harm, plaintiffs may not receive double recovery.

Answer 57

Indemnification is the shifting of the entire loss from one person to another. Indemnification typically occurs when a person is vicariously liable for another’s wrongdoing, but it also may be based on an agreement, equity, subsequent additional harm, or strict products liability.

Answer 58

Contributory fault occurs when a plaintiff fails to exercise reasonable care for her own safety and thereby shares a percentage of fault for her injury.

Answer 59

Under the traditional rule, the plaintiff’s contributory fault is a complete bar to recovery for negligence— but not for an intentional tort, gross negligence, or recklessness. But under the last-clear-chance rule (abolished in most jurisdictions), the plaintiff may mitigate the legal consequences of her own contributory fault if the defendant had the last clear chance to avoid injuring the plaintiff and failed to do so. y Helpless plaintiff – The defendant is liable to a helpless plaintiff if the defendant knew or should have known about the plaintiff’s perilous situation. y Inattentive plaintiff – The defendant is liable to an inattentive plaintiff only if the defendant had actual knowledge of the plaintiff’s inattention.

Answer 60

In pure comparative-negligence jurisdictions (default rule on the MBE), the plaintiff’s damages are merely reduced by her percentage of fault. In partial (or modified) comparative-negligence jurisdictions: y If the plaintiff is less at fault than the defendant(s), the plaintiff’s recovery is reduced by her percentage of fault. y If the plaintiff is more at fault than the defendant(s), the plaintiff recovers nothing. y If the plaintiff and defendant(s) are equally at fault, the plaintiff recovers 50% of her damages. But in a minority of jurisdictions, the plaintiff recovers nothing. Note that comparative fault (pure or modified) will not reduce the plaintiff’s recovery in an intentional tort case.

Answer 61

Traditionally, the plaintiff’s voluntary encountering of a known, specific risk is an affirmative defense to negligence that affects recovery. So in contributory-negligence jurisdictions (traditional rule), assumption of the risk is a total bar to recovery. But in comparative-negligence jurisdictions (default rule), it merely reduces recovery. Note that while parties can contract to disclaim liability for negligence, courts will not enforce exculpatory provisions (i.e., express assumption of the risk) in contracts if: y They disclaim liability for reckless or wanton misconduct or gross negligence y There is a gross disparity in bargaining power y The party seeking exculpation offers services of great importance to the public y They are subject to typical contract defenses like fraud or duress or y They are against public policy.

Answer 62

Strict liability requires proof of an absolute duty to make the plaintiff’s person/property safe, actual and proximate causation, and damages. DAD (Dangerous activities, Animals, Defective or dangerous products) situations are the only ones in which a defendant can be liable without proof of fault. Otherwise, strict liability is an incorrect answer choice.

Answer 63

An abnormally dangerous activity is one that is not commonly engaged in that creates a foreseeable and highly significant risk of physical harm. Courts consider the gravity of the harm, the inappropriateness of the place, and the limited value of the activity. Strict liability is limited to the harm expected from the activity. The focus is on the inherent nature of the activity—not on how careful the defendant may or may not be in conducting the activity.

Answer 64

The owner or possessor of a wild animal is strictly liable for harm that arises from a dangerous propensity that (1) is characteristic of such an animal or (2) the owner or possessor has reason to know about. This strict liability extends to injuries caused by the plaintiff’s fearful reaction to seeing an unrestrained wild animal.

Answer 65

The owner or possessor of an abnormally dangerous animal is strictly liable for injuries caused by that animal if (1) the owner or possessor knows or should have known that the animal has dangerous propensities abnormal for its category or species and (2) the harm results from those propensities.

Answer 66

The owner or possessor of any animal (other than household pets) is strictly liable for any reasonably foreseeable damage caused by the animal while trespassing. The exception for household pets does not apply if the owner or possessor knows or has reason to know that the pet is intruding on property in a way that tends to cause substantial harm. In contrast, the general negligence standard applies if an animal strays onto a public road and contributes to an accident there.

Answer 67

In contributory-negligence jurisdictions, contributory negligence is not a defense (i.e., it does not bar recovery). y In some comparative-fault jurisdictions, the plaintiff’s negligence does not reduce her recovery. In others and under the Third Restatement, recovery can be reduced by the plaintiff’s comparative fault. y Assumption of the risk (i.e., knowing contributory negligence) bars recovery

Answer 68

As in any other negligence action, a plaintiff filing a products-liability suit based on negligence must prove: y Duty – The duty of reasonable care that a commercial manufacturer, distributor, retailer, or seller owes to any foreseeable plaintiff y Breach – Failure to exercise reasonable care in the inspection or sale of a product y Causation – Requires actual and proximate causation y Damages – Personal injury or property damage (not pure economic loss) The standard negligence defenses—contributory/comparative negligence and assumption of the risk—apply.

Answer 69

Strict products liability requires proof of three elements: y The product was defective (in manufacture, design, or failure to warn). y The defect existed when the product left the defendant’s control. y The defect caused the plaintiff’s injury during intended or reasonably foreseeable use. The plaintiff need not be in privity of contract with the defendant. Anyone foreseeably injured or whose property is harmed may bring a strict products-liability action. The defendant must be in the business of selling (or otherwise distributing) the kind of product that harmed the plaintiff. A “seller” includes the manufacturer of the product, its distributor, and its retail seller. Casual sellers, auctioneers, the plaintiff’s employer, and service providers are generally not strictly liable. Strict products liability is one way that a manufacturer or supplier of a product can be held liable for a plaintiff’s injuries. Remember to also consider breach of warranty and negligence.

Answer 70

A manufacturing defect exists when the product fails to conform to the manufacturer’s intended specifications.

Answer 71

A design defect is determined under either of the following tests: y Consumer-expectation test – Is the product in an unreasonably dangerous condition that an ordinary consumer would not expect? y Risk-utility test – Do the risks posed by the product outweigh its benefits? The plaintiff must prove that a reasonable (economically feasible) alternative design was available and that the failure to use that design made the product unreasonably safe.

Answer 72

A failure-to-warn defect exists if the product has foreseeable risks of harm that are not obvious to an ordinary user of the product and could have been reduced or avoided with reasonable instructions or warnings. Under the learned-intermediary rule, the manufacturer of a prescription drug or medical device satisfies the duty to warn by warning the prescribing physician about problems with the drug or device unless: y The manufacturer knows that the drug or device will be dispensed without a healthcare provider’s personal intervention or evaluation or y The drug in question is birth control pills.

Answer 73

The plaintiff may recover damages for personal injury or property damage. A claim for purely economic loss must be brought as a breach-of-warranty action. For fungible products produced by several manufacturers, the jury can apportion damages based on the market shares of each manufacturer.

Answer 74

y Comparative fault – The plaintiff’s own negligence will reduce her recovery. y Contributory negligence – The plaintiff’s negligence is no defense if the plaintiff negligently failed to discover a defect or misused the product in a reasonably foreseeable way. y Assumption of the risk – This is a complete bar to recovery in contributory-negligence jurisdictions. But in most comparative-fault jurisdictions, it only reduces recovery. y Unforeseeable misuse, alteration, or modification of the product – Bars recovery in most contributory-negligence jurisdictions and reduces it in most comparative-fault jurisdictions. y Compliance with government standards – This is not conclusive evidence that the product is not defective, but it may be considered. y State-of-the-art standard – Compliance with this standard (i.e., the level of scientific, technological, and safety knowledge existing and reasonably feasible at distribution) will only bar recovery in some states. This standard is inapplicable in manufacturing-defect cases. y Statute of limitations – The statute begins to run against an injured plaintiff when she discovers (or should discover with reasonable care) her injury and its connection to the product. y Unforeseeable intervening causes (i.e., superseding causes) – These can cut off the defendant’s liability

Answer 75

The implied warranty of merchantability warrants that the product is generally acceptable and reasonably fit for the ordinary purposes for which it is being sold. The implied warranty of fitness for a particular purpose warrants that a product is fit for a particular purpose, but only if the seller knows that purpose and the buyer relies on the seller’s skill or judgment in supplying the product. If either warranty is breached, the buyer may recover damages for personal injury and property damage as well as purely economic loss. In addition, the Uniform Commercial Code includes three alternative privity provisions that allow a plaintiff who is not the buyer to recover: y Alternative A (majority rule) allows a member of the buyer’s family or household to recover for personal injury, but not for property damage or pure economic loss. y Alternative B allows anyone reasonably expected to use, consume, or be affected by the product to recover for personal injury. y Alternative C is similar to Alternative B but also allows recovery for property damage and economic loss

Answer 76

An express warranty is an affirmation of fact or a promise about a product that is part of the basis of the bargain. The seller is liable for any breach, regardless of fault.

Answer 77

Disclaimers – Any limitation of consequential damages for personal injury related to consumer goods is unconscionable. And a disclaimer of an express warranty is valid only if it is consistent with the warranty, which it usually is not. y Comparative fault and assumption of the risk – These affect recovery in the same way as they would in a strict products-liability action. y Contributory negligence – This does not bar a warranty claim, except when the contributory negligence consists of the unreasonable encountering of a known risk (i.e., when it overlaps with assumption of the risk). y Product misuse – This prevents recovery under the implied warranty of merchantability when the product is warranted to be fit for ordinary purposes. y Failure to provide notice of breach – A warranty claim generally fails if the plaintiff fails to give the seller notice of the breach within the statutorily required time period (when applicable) or a reasonable time.

Answer 78

A plaintiff may bring a defamation action if the defendant’s defamatory language (1) is of or concerning the plaintiff, (2) is published to a third party who understands its defamatory nature, and (3) damages the plaintiff’s reputation. y Defamatory language diminishes respect, esteem, or goodwill toward the plaintiff. y It is of or concerning the plaintiff if a reasonable person would believe that it refers to the plaintiff. y Publication refers to a communication made negligently or with actual malice (i.e., knowledge of falsity or reckless disregard for the truth) to a third party who understands its defamatory nature. Figure 7.A illustrates when actual malice or negligence is required. y Republication may satisfy the publication requirement, even if it identifies the original publisher and expresses uncertainty about the truthfulness of the statement.

Answer 79

If the statement is a matter of public concern or the plaintiff is a public figure, then the plaintiff must prove that the statement is false. If the plaintiff is a private person and the statement is not a matter of public concern, the plaintiff need not prove falsity. However, the defendant may prove truth as an affirmative defense.

Answer 80

Libel is defamation by words written, printed, or otherwise recorded in permanent form. This generally includes radio and television. A libel plaintiff may recover general damages for reputational harm. But in some jurisdictions, under the doctrine of libel per quod, the plaintiff must prove special damages or that the statement fits into a category of slander per se when extrinsic facts are needed to prove that the statement is defamatory.

Answer 81

Slander is defamation by spoken word, gesture, or any form other than libel. A slander plaintiff must prove: y Special damages – Someone heard the defamatory comments and acted adversely to the plaintiff (an economic loss is usually involved) y Slander per se – The defamatory comments accused the plaintiff of (1) committing a crime, (2) conduct reflecting poorly on the plaintiff’s fitness to conduct her business, trade, or profession, (3) having a loathsome disease. or (4) sexual misconduct.

Answer 82

Truth, consent, absolute privileges, qualified (conditional privileges)

Answer 83

Statements made: y By a participant in a judicial or legislative proceeding y During the performance of official duties by a legislator or executive governmental official y Between spouses concerning a third person or y In required publications by radio, television, or newspaper

Answer 84

Statements made: y In the interest of the publisher (defendant), such as defending the publisher’s reputation y In the interest of the recipient of the statement or a third party or y Affecting an important public interest. The plaintiff must prove that the privilege has been abused and therefore lost

Answer 85

The plaintiff must prove that the defendant’s intentional intrusion into the plaintiff’s private affairs was highly offensive to a reasonable person. No publication is required.

Answer 86

– The plaintiff must prove that the defendant made public facts that placed the plaintiff in a false light that would be highly offensive to a reasonable person. This includes attributing views or actions to the plaintiff. For matters of public concern, proof of actual malice is required.

Answer 87

(Mis)Appropriation of the Right to Publicity – The plaintiff must prove an unauthorized appropriation of the plaintiff’s name/likeness for the defendant’s advantage that injured the plaintiff.

Answer 88

Public Disclosure of Private Facts – The plaintiff must prove that the defendant publicly disclosed private facts (even if true) that would be highly offensive to a reasonable person and are not of legitimate public concern. This tort is disfavored because it is at odds with the First Amendment.

Answer 89

The defenses of absolute and qualified privilege that apply in defamation actions also apply to privacy actions based on “false light” or “public disclosure of private facts.” Consent is a defense to all invasionof-privacy torts, but mistake negates this defense. Truth is not a defense. The right of privacy extends only to individuals and terminates upon death. The plaintiff need not prove special damages; emotional/mental distress is enough.

Answer 90

Intentional misrepresentation requires proof that: y The defendant knowingly or recklessly misrepresented a material fact, opinion, intention, or law with the intent to induce the plaintiff’s reliance and y The plaintiff justifiably relied on the defendant’s misrepresentation and suffered damages as a result. The plaintiff must prove actual damages because nominal damages are not available. Consequential and punitive damages may be awarded. Damages are often limited to the economic loss suffered by the plaintiff. Damages for emotional distress are generally not awarded.

Answer 91

Negligent misrepresentation requires proof that: y The defendant, in the course of his business or profession, negligently provided false information to the plaintiff. y The plaintiff justifiably relied on the information and suffered pecuniary damages as a result. The plaintiff must be a member of the limited group for whose benefit the information is supplied. And the plaintiff’s reliance on the information must be in the same (or substantially similar) transaction that the defendant intended to influence or knew that the recipient intended to influence. Standard negligence defenses apply. The plaintiff can recover reliance damages as well as any other consequential pecuniary damages.

Answer 92

This tort requires proof that: y A valid contract existed between the plaintiff and a third party (not the plaintiff and the defendant) y The defendant knew about the contract y The defendant intentionally interfered in a way that substantially exceeded fair competition and free expression, resulting in a breach and y The breach caused the plaintiff damages. However, the interference may be justified if: y The interference was motivated by health, safety, or morals y The contract was terminable at will or y The defendant is a business competitor

Answer 93

A defendant may be liable for intentionally interfering with a prospective business relationship between the plaintiff and a third party, even in the absence of an existing contract. But when there is no contract, more egregious conduct is required. The other elements remain the same, except that the defendant’s conduct must be independently tortious, in violation of federal or state law, or improper as decided by a balancing process. Without wrongful conduct, a business competitor will not be held liable for encouraging a third party to switch business

Answer 94

The plaintiff must have owned a valid trade secret (i.e., information that provides a business advantage) that was not generally known and taken reasonable precautions to protect it. The defendant must take the secret by improper means.

Answer 95

s the malicious publication of false and derogatory statements about the plaintiff’s title to her business property, the quality of her business, or the quality of its products. The plaintiff must suffer special damages as a result of interference with or damage to her business relationships. Truth and fair competition are valid defenses.

Answer 96

s the malicious publication of false and derogatory statements about the plaintiff’s title to real property. The plaintiff must suffer special damages as a result of diminished value in the eyes of third parties.

Answer 97

Liability for malicious prosecution arises when a person intentionally and maliciously initiates a legal action for an improper purpose and without probable cause, and the action is dismissed in favor of the person against whom it was brought. Recoverable damages include legal expenses, lost work time, loss of reputation, and emotional distress. Note that judges and prosecutors are absolutely immune from liability.

Answer 98

To recover for abuse of process, the plaintiff must prove that the defendant committed a willful and improper act while using the legal process to accomplish an ulterior purpose for which the legal process was not designed, causing damages to the plaintiff.

Torts Flashcards

(123 cards)