Torts

Question 1

Negligence rule statement

Answer 1

Conducts that falls below standard of care established by law for protection of others against unreasonable risk of harm.

Question 2

5 Elements of Neglience

Answer 2

(1) Duty
(2) Breach
(3) Proximate Cause (forseeable harm)
(4) Actual Cause
(5) Damages

Question 3

What is Negligence Per Se

Answer 3

Breach is inferred by the violation of a statute, regulation or law.

Question 4

Two elements of Negligence Per Se

Answer 4

(1) Statute’s purpose was to prevent this type of injury
(2) Plaintiff is in the class of people the statute seeks to protect.

Question 5

What are the two exceptions for the need to prove all elements of a negligence claim?

Answer 5

(1) Res Ipsa Loquitur - “the thing speaks for itself”
(2) Negligence Per se - breach is inferred by the violation of a statute, regulation, law.

Question 6

Elements for- Res Ipsa Loquitur

Answer 6

(1) Defendant in exclusive control
(2) injury would not have ordinarily occured but for the defedant’s negligence
(3) Plaintiff’s injury not due to his/her own action.

Question 7

Strict Products Liability - who can be sued

Answer 7

Anyone in the chain of manufacturing, wholesaler, or retailer - up and down the chain

Question 8

Strict Products Liability Elements

Answer 8

(1) Defendant sells product that the Plaintiff uses
(2) The defendant is the commercial seller of such a product
(3) Plaintiff suffers an injury.
(4) When defendant sold the item, the item was defective
(5) Defect was an actual and proximate cause of the plaintiff’s injury.
(6) Product was used for its intended purpose.

Question 9

SL - Claim based on?

Answer 9

Can be based on negligence, SL, and breach of warranty (expressed, implied warranty of merchantability, and implied warranty of fitness theories)

Question 10

3 Types of SLPL claims (based on JX)

Answer 10

(1) Design Defects
(2) Manufacturing defects - construction or production of the product
(3) Defects in Warning labels and instructions (failure to warn)

Question 11

Defenses to Strict Products Liability?

Answer 11

(1) Risk-utility test: the defendant is not liable for a design defect if evidence shows that the product’s utility outweighs its inherent risk of harm.

(2) Consumer expectation test: A product may be considered not defective if Defendant can show that it did not operate as safely as the average consumer would expect it to operate (e.g., power tools, lawnmowers, etc).

Question 12

What are the types of intentional torts?
(deliberate action that causes harm to another)

Answer 12

Assault
Battery
False Imprisonment
Intentional Infliction of Emotional Distress
Negligent Infliction of Emotional Distress
Trespass
Conversion

Question 13

Assault

Answer 13

intentional conduct that causes another to reasonably fear the infliction of bodily harm.

Question 14

Battery

Answer 14

Intentional touching of, or application of force to, the body of another in a harmful or offensive manner (without consent)

Question 15

False Imprisonment

Answer 15

Restrain or confining of another person in a bounded area without consent, and the Plaintiff is aware of such confinement

Question 16

False Imprisonment Exception

Answer 16

Shopkeeper’s Privilege: were the store’s actions reasonable in time, scope, and manner.

Question 17

Intentional Infliction of Emotional Distress

Answer 17

Extreme and outrageous conduct causing emotional distress to another

Question 18

Negligent Infliction of Emotional Distress

Answer 18

need the physical manifestation of damages

Question 19

Trespass

Answer 19

Knowingly entering another person’s property without permission with injury or loss to Plaintiff.

Question 20

Conversion

Answer 20

Intentionally causing serious and substantial interference with another’s property

Question 21

Nuisance

Answer 21

unreasonable interference with one’s use and enjoyment of real property

Question 22

Public Nuisance

Answer 22

(same definition as nuisance) except must prove actual damages and interference with the health and safety rights of the community.

Question 23

4 Types of Invasions of Privacy

Answer 23

(1) Intrusion Upon Seclusion
(2) False Light
(3) Publication of Private Facts
(4) Appropriation or Name of Likeness

Question 24

General Law Statement for Negligence

Answer 24

Under the Common Law Tort Principles and 2nd Restatement of Torts, Negligence is conduct that falls below the standard of care established by law for the protection of others against unreasonable risk of harm. The plaintiff must prove the following elements: (1) Duty of care owed by a reasonably prudent person, (2) Breach of that duty, (3) cause in fact, the “but for” test, (4) actual cause (foreseeable harm), and (5) damages. Damages include those under the “thin eggshell skull” rule.

Question 25

Three Types of Strict Liability Claims

Answer 25

(1) Wild animals - strictly liable regardless of warning (2) Abnormally dangerous activity: (1) uncommon use in the community, and (2) foreseeable risk of harm (even if done with reasonable care) Ex: A demolition company is hired to level an old building in a downtown area. They use dynamite to blast the structure. Despite following all safety regulations and taking every precaution, the shockwaves crack the foundation of a nearby apartment building. (3) Domesticted animal: liable only if the defendant has knowledge of a propensity to attack or bite - exception to dog bite: (3 T's): torment, tease, or trepassing.

Question 26

Defenses

Answer 26

Assumption of the risk Contributory negligence Comparative negligence - pure -modified

Question 27

Assumption of the Risk

Answer 27

Known danger & the Plaintiff voluntarily exposes themselves.

Question 28

Contributory Negligence

Answer 28

(most states got rid of this). If the plaintiff is at fault at all - this is a complete bar to recovery.

Question 29

Comparative Negligence

Answer 29

Pure: Plaintiff recovers based on the percentage of def's fault. Modified: If the plaintiff is 50% or more at fault, no recovery.

Question 30

Do defamation require proof that the defamatory statement was communicated to a third party who understood its meaning?

Answer 30

Yes, defamation requires proof that the D intentionally and negligently communciated a false statement about the Plaintiff to a third party who understood its meaning.

Question 31

Proximate Cause

Answer 31

The plaintiff’s harm was a reasonably foreseeable consequence of the defendant’s conduct, meaning that the conduct was of a type that generally increases the risk of that harm.

Question 32

Intent for Assault

Answer 32

For assault, intent exists when a defendant acts with the purpose (desire) or knowledge (substantial certainty) that his/her conduct will cause the P to anticipate an imminent, and harmful or offensive, contact.