Torts 2

Question 1

What is the 4th element of negligence?

Answer 1

Damages is the 4th element of negligence

Question 2

What are the three categories of damages available?

Answer 2

Nominal, Compensatory, and Punitive

Question 3

Punitive damages generally require what evidentiary standard?

Answer 3

Punitive damages generally require “Clear and Convincing” evidence.

Question 4

Compensatory damages for negligent personal injury are based on what harms?

Answer 4

Compensatory damages are based on:
Past physical and mental pain;
Future physical and mental pain;
Past and future medical expenses;
Loss of earnings; 
Permanent disfigurement or disability.

Loss of consortium may also be available.

Question 5

Does defendant need to foresee the extent of the plaintiff’s harm for negligent personal injury damages?

Answer 5

No. Foreseeability of the extent of harm to the injured is not required. The negligent actor takes the plaintiff as he finds him (eggshell skull).

Foreseeability is only required that some harm could occur, not how much harm will occur.

Question 6

How is recovery for negligent property damage calculated?

Answer 6

Compensatory damages for property damage is based on the comparison of value of the chattel prior to the damage and after the damage.

Value prior is based on the Market Value at the time and place of the harm.

Question 7

According to Pacific Mutual v. Haislip, at what point are punitive damages likely to “destroy” the defendant?

Answer 7

Punitive damages are intended to “sting, not destroy” the tortfeasor. Damages greater than 10% of net worth are likely to destroy the tortfeasor, per Pac. Mutual v Haislip.

Question 8

All punitive damage awards are subject to judicial review. What factors are considered in this review?

Answer 8

Judicial review will consider the ratio of punitive-to-compensatory damages. Generally a single digit ratio is the threshold (ex. 3:1).
The court will also consider the “Green Oil” factors.

Question 9

What are the “Green Oil” factors for judicial review of punitive damages?

Answer 9

1) Relationship of the award to the harm incurred;
2) the Reprehensibility of the conduct;
3) Amount required to remove profit and apply a loss;
4) Financial status of the defendant;
5) the cost of litigation;
6) Comparable sanctions and other civil awards.

Question 10

Who has a duty to mitigate harm?

Answer 10

The plaintiff has a duty to mitigate her harm. A plaintiff can not recover for harm that occurs after the conduct if her actions could have reduced or stopped the harm.

Question 11

What is the Collateral Source Rule?

Answer 11

The common law Collateral Source rule prevents evidence of outside benefits (like insurance) the plaintiff has received.

The Collateral Source rule has been abrogated or abolished by statute in many jurisdictions.

Question 12

What is the theory behind subrogation, and how does it work?

Answer 12

Subrogation is based on the theory that a plaintiff can’t recover twice for the same harm.

If a plaintiff has been satisfied by insurance benefits and receives a damages award, the insurance company can recover its losses from the plaintiff via subrogation.

Question 13

What is the effect of a plaintiff’s contributory negligence in a contributory negligence state?

Answer 13

Contributory negligence is an absolute bar to claim in certain states. This includes a plaintiff’s failure to remove himself from danger (riding with a known drunk driver).

Question 14

How does the Last Clear Chance doctrine impact contributory negligence?

Answer 14

Under the last Clear Chance doctrine, a negligent plaintiff may still recover if he can show the defendant had the last opportunity to avoid the harm. A defendant may also use as a defense to show the plaintiff could have avoided the harm.

Question 15

What are the required elements of an Assumption of Risk defense?

Answer 15

Assumption of Risk occurs when the plaintiff assumes the risk of harm from an activity, and can be implied or expressed assumption.

Implied assumption of the risk requires the plaintiff has subjective knowledge of the risk and voluntarily participates (unless there is no reasonable alternative).

Express assumption of the risk is generally written, must be clear and conspicuous in terms, and not against public policy.

Question 16

What defense theory shares liability based on the amount of fault?

Answer 16

Comparative negligence shares liability based on the amount of fault.

Question 17

What are the types of comparative negligence?

Answer 17

Pure comparative negligence allows a plaintiff to recover on any amount of the defendant’s fault.

Modified comparative negligence only awards the plaintiff when the plaintiff’s fault is less than 50%, or 50% or less.

Question 18

When does the statute of limitations begin to run for negligence claims?

Answer 18

Accrual begins based on state statute, but generally begins when the plaintiff knows or should have known of the harm.

Question 19

Regarding the statute of limitations, what is tolling and what circumstances can trigger tolling?

Answer 19

Tolling the statute of limitations is when the accrual of time pauses for some reason.

Tolling can occur when the plaintiff is a minor, insane, the harm is hidden by fraud, or the defendant obstructs the filing of a claim.

Question 20

What does “repose” mean with regard to the filing of a negligence claim?

Answer 20

Repose is the maximum amount of time after an act that harm can arise.

Ex., following a medical procedure, patient has adverse effect 5 years later. A claim is barred under the AL repose statute.

Question 21

What are the prima facie elements of a Strict Liability claim?

Answer 21

1) The nature of an activity imposes an absolute duty to make the act safe;
2) Dangerous aspect of the activity is the actual and proximate cause of the harm;
3) the Plaintiff suffered the harm.

Question 22

What liabilities exist with the owning or harboring of animals?

Answer 22

Defendant strictly liable for his trespassing animals if the harm is reasonably foreseeable. Strict liability applies for wild animals not native to the area.

Regarding domestic animals, strict liability only applies if the animal had a known dangerous propensity.

Question 23

For strict liability, what is an Abnormally Dangerous Activity?

Answer 23

An abnormally dangerous activity is one that involves a substantial risk even when reasonable care is used. The Restatement considers 6 factors in determining liability as a matter of law:

1) High degree of risk;
2) Likelihood of harm from activity;
3) Reasonable care won’t eliminate risk;
4) Commonality of the activity;
5) Inappropriateness to the location/place;
6) the act’s Value to the community.

Question 24

Is foreseeability a consideration in Strict Liability?

Answer 24

Strict Liability is available to foreseeable plaintiffs for harm normally anticipated from the activity.

Ex. No blasting liability when scared mink eats her young. Foster v. Preston Mill

Question 25

What tort theories are applicable to Product Liability?

Answer 25

Product Liability is not a tort, but a generic term for harm related to products. Liability arises under Negligence or Strict Liability generally, but can also arise from Intent and Warranty theories.

Question 26

What types of defects are classified as Product Liability defects?

Answer 26

``` Product liability address three defects: Manufacturing defect; Design Defect; Warning Defect (sometimes combined with Design) ```

Question 27

What defect occurs when a product comes from the manufacturing process different from the other products, in a manner that is unreasonably dangerous?

Answer 27

A manufacturing defect occurs when some part or component of the product is defective in a manner that is different from the typical product line.

Question 28

What defect occurs when products of a manufacturing line are all effected and determined to be unreasonably dangerous?

Answer 28

A design defect effects all product of the same design, when the plaintiff shows that a less dangerous and economically feasible alternate design (Reasonable Alternative Design) was available.

Question 29

When considering a Reasonable Alternative Design, what factors are considered by the court?

Answer 29

Reasonable Alternative Design considerations: 1) Usefulness and desirability of product; 2) Availability of safer products; 3) Dangers identified at the time of trial; 4) Likelihood and probable seriousness of injury; 5) Obviousness of danger; 6) Normal public expectation of danger; 7) Injury avoidability by careful use; 8) Eliminating danger vs. impairing function or undue expense.

Question 30

What are the prima facie elements for a Strict Products Liability claim?

Answer 30

Elements of Strict Products Liability- 1) Commercial Supplier 2) A defective product 3) Actual and proximate cause of injury 4) Damages An intervening cause can negate a strict liability claim.

Question 31

What is a Commercial Supplier to be liable for a strict product liability claim?

Answer 31

A commercial supplier is the manufacturer, retailer, assembler, wholesaler. Basically anyone in the chain of distribution or production. A casual seller, or seller of used products, is generally not liable for strict product liability.

Question 32

What creates a Private Nuisance?

Answer 32

A private nuisance is substantial interference with the use and enjoyment of one's land. Substantial interference can be offensive, inconvenient, or annoying to the average person in the community. However, one's hypersensitivity is not recognized.

Question 33

What creates a public nuisance claim?

Answer 33

A public nuisance is an act that unreasonably interferes with health, safety, or property rights of the public. To maintain a claim, the plaintiff must suffer a unique damage outside the general public.

Question 34

The preferred remedy for a Nuisance claim is what?

Answer 34

Legal remedies (money damages) are the preferred remedy. When damages are inadequate or unavailable, injunctive relief may be available.

Question 35

What is the theory of Self-Help under nuisance?

Answer 35

Self-help is available for private nuisance. After the defendant is given notice of the nuisance, and refuses to act, the plaintiff may use necessary force to abate a private nuisance.

Question 36

Does Coming to a Nuisance bar a claim for nuisance harm?

Answer 36

Not absolutely, if the plaintiff acted in good faith in purchasing and encroaching upon a nuisance. The court will balance conveniences of the parties involved.

Question 37

The doctrine of Respondeat Superior means...

Answer 37

"Let the master answer" literally. This doctrine makes the employer liable for the tortious acts of its employee, if within the scope of employment.

Question 38

The "Coming and Going" Rule

Answer 38

Generally, employers and not liable for employees traveling between home and work.

Question 39

What is the difference between a "frolic" and a "detour" in vicarious liability?

Answer 39

A detour is only a slight deviation for the employee's personal business. Employer's maintain liability during a detour. A frolic is the employee's abandonment of the employer's business. Employer's are not liable during a frolic.

Question 40

When might vicarious liability apply to intentional torts?

Answer 40

When force is authorized by the employment (bouncer); When friction is generated by the employment (repo man); If the employee is acting to further the business of the employer.

Question 41

What helps distinguish independent contractors from employees?

Answer 41

There is no set of factors that completely distinguish independent contractors. The level of supervision, dominion, and control over the work is one consideration. Other considerations may be: method of pay/taxes, who suppliers tools/materials, authority given to act for employer.

Question 42

What is the 4-prong test to determine a partnership or joint venture?

Answer 42

A joint venture is determined based on: 1) Agreement among the group; 2) Common purpose of the group; 3) Common pecuniary interest; 4) Equal say in direction of enterprise. A partnership or joint venture creates vicarious liability, each member is held as an agent of the others.

Question 43

For the purposes of Survival of a Claim, what is the difference between a Cause of Action and an Action?

Answer 43

A cause of action is the rightful claim before suit if filed. An action is the suit after it has been filed and begun. Survival varies by statute, generally a survivor can recover for all damages the decedent could have. An action survives the decedent and a cause of action dies with the decedent. (AL rule)

Question 44

If the tortfeasor dies, does the Cause of Action die with her?

Answer 44

No, a cause of action survives a tortfeasor and claim can be against the estate.

Question 45

What happens to a defamation action upon the death of a plaintiff?

Answer 45

There can be no survival on defamation actions, under the theory that the reputation of the dead plaintiff can't be harmed.

Question 46

Wrongful death is a claim for what?

Answer 46

Wrongful death is a claim for recovery based on economic loss or pecuniary injury as a result of the death. The loss of support and companionship is recoverable. AL only allows punitive damages for wrongful death.

Question 47

How does contributory and comparative negligence impact wrongful death recovery?

Answer 47

Based on jurisdiction laws, contributory and comparative negligence on the part of the decedent may reduce or bar damages. The negligence of a beneficiary can reduce damages in comparative negligence states.

Question 48

What federal statute largely waiver governmental immunity at the federal level?

Answer 48

The Federal Torts Claims Act waived much federal tort immunity. However, governmental immunity still applies to discretionary and policy judgement acts. Operational (ministerial) acts of the federal government have no immunity.

Question 49

What is the Feres Doctrine regarding federal immunity?

Answer 49

The Feres Doctrine provides immunity for a Military active-duty related incident. Similarly, contractors conforming to specific government specifications have immunity for those products.

Question 50

Sovereign Immunity at the State Level

Answer 50

Common law sovereign immunity applies to states, however many have been waived. Liability may be limited by statute. Ex. AL limits tort liability against the state to $100/300k.

Question 51

When are municipalities subject to tort liability?

Answer 51

Where states maintain immunity for municipalities, the act must be distinguished as a governmental or proprietary function. Proprietary functions include those functions that could be performed by a private corporation (garbage collection, utility services, etc.) and have liability.

Question 52

In certain cases, a municipality may be liable even where special relationships exist. What creates a special relationship?

Answer 52

A municipality creates a special relationship and special duty through a public duty role, where the municipality: 1) has assumed an affirmative duty to act; 2) has knowledge that inaction could lead to harm; 3) has direct contact with the injured party; 4) creates a justifiable reliance in the action of the municipality. This generally arises with 911 calls and appropriate responses.

Question 53

What are the elements of prima facie defamation?

Answer 53

Defamation exposes a person to contempt or distrust, or has a tendency to injure one's business or employment. The elements of defamation are: 1) False 2) Of or concerning the plaintiff 3) Unprivileged publication 4) Damages

Question 54

What if everyone doesn't believe a claimed defamation?

Answer 54

Defamation only has to be believed by some people. Also, a fictional tale that could reasonably lead to understand it is about the plaintiff is defamatory.

Question 55

Who can be defamed?

Answer 55

A living person can be defamed, there is no defamation against the dead or after death. A corporation, association, partnership can be defamed in the sense of honesty, integrity, financially

Question 56

How is group defamation addressed?

Answer 56

If a group of people is defamed, it depends on the size and circumstances. If reference to all members of a small group, then each has a claim. If reference to part of a small group that could reasonably be inferred as plaintiff, then defamation claim. If reference to a large group, then generally no claim.

Question 57

What constitutes a publication for defamation purposes?

Answer 57

A publication is communication to a third party, who understands the communication.

Question 58

Is intent a requirement of defamation?

Answer 58

No. Defamation can be negligent or intentional. Intent is only required as to the publishing. Intent to defame is not necessary.

Question 59

What is the Single Publication Rule in defamation?

Answer 59

The Single Publication Rule is that only the original publication creates a claim for defamation. 1000 copies of the same newspaper or book is only one claim. However, each edition of a paper is a new publication. So if multiple papers print a defamatory AP story, each could be liable.

Question 60

Who is liable for defamation?

Answer 60

The original publisher is liable. A republisher may be liable for repeating defamation, even if they cite the source and don't believe the story. Secondary publishers (vendors of newpapers or books) are not generally liable, unless they knew or should have known.

Question 61

When are internet companies liable for defamatory statements?

Answer 61

Information Content Providers are liable as publishers. Interactive Computer Services (platforms) are not liable for statement made by others. Section 230, U.S.C.

Question 62

How are libel and slander distinguished?

Answer 62

Libel is generally recording in print (can be TV or Radio) and more permanent in nature. Slander is generally spoken words, or gestures, that are less permanent in nature.

Question 63

How are damages distinguished between libel and slander?

Answer 63

General damages are presumed in libel. Slander requires special damages be proven by the plaintiff, unless slander per se.

Question 64

What are the four categories of slander per se that do not require special damages?

Answer 64

Slander per se: 1) Reflecting on profession, business, or trade abilities 2) A loathsome disease 3) Crime involving moral turpitude 4) Chasity (of a woman in common law, the Restatements include men)

Question 65

Who is a public official in defamation?

Answer 65

Public official in defamation has the plain meaning of the term. A person who has or appears to have substantial involvement in governmental operations.

Question 66

How is actual malice defined for defamation of a public official?

Answer 66

Actual malice is a subjective knowledge of the falsity, or a reckless disregard to the truth or falsity of a statement. Clear and convincing evidence is required to show actual malice. NYT v Sullivan

Question 67

What if a publisher intentionally avoids discovering the truth?

Answer 67

Intentional avoidance of the truth can establish actual malice, with clear and convincing evidence.

Question 68

What is a public figure for defamation?

Answer 68

A public figure is one who: 1) has pervasive fame or notoriety, or 2) voluntarily interjects self into public light/controversy. Sullivan Malice standard extends to public figures.

Question 69

What is a limited purpose public figure?

Answer 69

A private individual may become a public figure for a limited time and purpose if: 1) has access to effective communication 2) voluntarily or reasonably foresaw a role of special prominence 3) Sought to influence some controversy 4) The controversy existed at the time of publication 5) Retained the public figure status at time of alleged information

Question 70

What level of defendant fault is required for private person defamation?

Answer 70

Actual malice is not required. If a matter of public concern, at least negligence is required with the plaintiff having the burden.

Question 71

When are punitive damages available to a private person defamed on a matter of public concern?

Answer 71

If a private person is defamed relating to a matter of public concern, actual malice is required for punitive damages. Absent actual malice, damages are limited to the actual injury (can include loss of reputation, humiliation, mental suffering).

Question 72

For private person and a matter of purely private concern, what are the constitutional limitations on defamation claims?

Answer 72

There are no limitations on defamation for private individuals relating to matter of private concern. Presumed and punitive damages are available.

Question 73

What are the absolute privileges to defamation?

Answer 73

The truth is an absolute affirmative defense to defamation. Judicial proceedings, legislative and executive proceedings are privileged, so far as the matter reasonable relates to the matter at hand.

Question 74

What are qualified privileges to defamation?

Answer 74

Public proceeding reports, Public interest reporting, including fair comment and criticism, interest of the speaker or recipient (ex. job reference), and common interest of speaker and receiver.

Question 75

How are qualified privileges lost?

Answer 75

A qualified privilege to defamation is lost if there is actual malice. Also, the statement must be within the scope of the privilege.

Question 76

What are the 4 theories of Invasion to Privacy?

Answer 76

``` The four theories to invasion of privacy are: Appropriation Intrusion False Light Public Disclosure of Private Facts ```

Question 77

What are the elements of Appropriation?

Answer 77

The elements of appropriation are: 1) Use of one's name or picture (likeness) 2) For advertising or promotion (commercial purposes) 3 maybe) not Newsworthy

Question 78

What are the elements of Intrusion?

Answer 78

The elements of Intrusion to Affairs or Seclusion are: 1) Inference in plaintiff's seclusion 2) Highly offensive to a reasonable person 3) Where there was expectation of privacy (private conversation, place, matter)

Question 79

What are the elements of False Light?

Answer 79

The elements of False Light are: 1) Widespread dissemination 2) Somewhat or portrayed inaccurate 3) Highly Offensive to Reasonable Person

Question 80

What are the elements of Public Disclosure of Private Facts?

Answer 80

The elements of Private Facts are: 1) Widespread dissemination of private facts 2) Can be true, but private 3) Highly Offensive to Reasonable Person

Question 81

If a private matter is of public concern or interest, what is the standard required for invasion?

Answer 81

For matters of public concern or public interest, 1A protections apply and Sullivan Malice is required.

Question 82

Define a Public Concern/Interest

Answer 82

A public concern is related to any matter of political, social, or other concern of the community. Public Interest is a Subject of general interest and value to the community.

Question 83

How does common law malice distinguish from Sullivan malice?

Answer 83

Common law malice is ill-will, reckless or wanton disregard for a person's rights. Sullivan Malice is knowingly false or a reckless disregard for the truthfulness of a matter.

Question 84

Are special damages required for Invasion of Privacy?

Answer 84

No. General damages are sufficient for invasion claims. Emotional distress and mental anguish are sufficient.

Question 85

What are the elements of misrepresentation?

Answer 85

1) False assertion of material fact 2) Intent to induce reliance 3) Causation 4) Justifiable Reliance 5) Damages

Question 86

When is negligent misrepresentation actionable?

Answer 86

When it meets the elements of misrepresentation are the asserting party has a duty to the receiving party that is breached.

Question 87

When may innocent misrepresentation be actionable?

Answer 87

An innocent misrepresentation occurs when the asserting party had the means to know, ought to know, or had a duty to know the falsity of an assertion.

Question 88

What does Caveat Emptor mean?

Answer 88

Caveat Emptor literally means "Let the Buyer Beware" and under old common law it placed the burden of discovering faults on the buyer. It has largely been abrogated or modified.

Question 89

What is the status of Caveat Emptor in Alabama?

Answer 89

Alabama is a buyer beware (caveat emptor) state, with a duty to assert if there is a fiduciary relationship, matter affecting health or safety, or the buyer specifically inquires to a matter.

Question 90

When may professionals (ex. accountants) be liable for misrepresentation to 3rd persons?

Answer 90

If the professional is aware of the purpose of the work, knows of a relying 3rd party, and has some linkage to the 3rd party.