Torts Flashcards

Question

Trespass to Chattels - Damages

Answer 1

* **Disposession**: may recover actual damages caused and for loss of use * **Use or Intermeddling**: may only recover actual damages, measured by * including diminution in value, or * the cost of repair, or * replacement value

Answer 2

An intentional act depriving plaintiff of possession of chattel OR intefering with chattel in a manner so serious as to deprive the plaintiff entirely of the use of the chattel * intentional: intent to commit the act constituting the tort * mistake is not a defense * interference: exercise of dominion or control over chattel inconsistent with plaintiff's rights, beyond trespass * duration/extent of the interference * intent to assert right inconsistent * defendant's good faith * expense or inconvenience to plaintiff * extent of harm to chattel

Answer 3

Plaintiff may recover: * full value of the chattel at the time of conversion, OR * replevin * if defendant originally acquired property lawfully, must request its return before suing

Answer 4

An intentional physical invasion of another's land * intent: need only have intent for the movement * mistake of fact or law not a defense * physical invasion: defendant's self or a physical object * includes failure to leave when lawful right has expired

Answer 5

No proof of actual damages required; may get nominative damages

Answer 6

Available to a person who enters land or interferes with chattels of another in order to prevent in injury or another severe harm * private necessity: an incomplete privilege; plaintiff must pay for actual damages * public necessity: where necessary to protect a large number of people from public calamities, not liable for any damages to the property

Answer 7

An activity that **substantially** and **unreasonably** interferes with another's use and enjoyment of land * activity: may be intentional, reckless, or negligent * unreasonable: where intentional, more than plaintiff should have to bear (vague) * negligence standard for unintentional conduct * blocking sunlight is not a nuisance * exception: spite fence * mere decline in property value is not enough - must be substantial and unreasonable

Answer 8

* assumption of the risk or comparative negligence (if conduct is negligent) * compliance with state or local regulation (partial defense - constitutes evidence of reasonableness) * coming to the nuisance - not a defense but may be a factor

Answer 9

Plaintiff must prove: * an unreasonable interference with a right common to the general public * special harm to the plaintiff different from the public

Answer 10

* injunction: typically where value of the activity is not great compared to the harm created * damages: usual remedy for harm * temporary or permanent * abatement: a person may enter another's land to abate nuisance so long as notice has been given and defendant has refused to act * proportionate reasonable force * only public agency/authority may abate public nuisance

Answer 11

Failure to exercise the care that a reasonable person in the situation would exercise constituting a breach of the **duty** to prevent foreseeable risk of harm to others, **causing** the plaintiff's **harm** * what would a reasonably prudent person do under the circumstaces?

Answer 12

A legal duty exists to all foreseeable persons who may be injured by the defendant's failure to follow a reasonable standard of care * no duty to act affirmatively unless * rescuing - must act with care once begin * where placed victim in danger * in exercise of authority or control * where a special relationship exists (reliance) * rescuers of victims are foreseeable plaintiffs * some emergency personnel are exempted (firefighters' rule)

Answer 13

What a reasonably prudent person would do? * cost/benefit analyses * cost, ease, efficiency of precautions (burden) * likelihood and severity of harm (risk) * custom is relevant evidence - not complete * defendant held to standard of average mental ability and knowledge * intoxication does not change standard unless involuntary * particular physical characteristics **are** taken into account as part of circumstances

Answer 14

What would a reasonably prudent child of that age/maturity do? * exception: children engaged in adult activities held to adult standard

Answer 15

Duty to act with same knowledge and skill of another practitioner in the same context or community. * specialists may be held to a higher standard

Answer 16

Traditional rule: the standard in the "same or similar locale" Modern trend: (national) professionally established standard Also duty to procure **informed** consent

Answer 17

Informed consent exists where doctor explains risks. Failure to obtain informed consent constitutes medical malpractice. Exceptions: * commonly known risks * patient unconscious * patient waives/refuses information * patient is incompetent * patient would be harmed by disclosure

Answer 18

Negligence per se may exist where a criminal law or regulatory statute imposes a particuar duty and * plaintiff is in the class of people intended to be protected * the harm is the type that the statute tries to avoid * the harm was caused by a violation of the statute

Answer 19

* Compliance was impossible * An emergency justified violation * Defendant must show that compliance would have been more dangerous that the violation * Violation by plaintiff (contributory or comparative negligence)

Answer 20

Traditional Rule: highest duty of care consistent with practical operation of the business Majority Rule: both have duty to act affirmatively or protect based on special relationship with passengers or guests, but * common carriers held to higher standard * inn keepers not held to higher standard (ordinary negligence standard)

Answer 21

Modern trend: The ordinary standard applies to non-commercial automobile drivers, unless a **Guest statute jurisdictions: **Drivers are only liable to guests and friends in the car for recklessness, gross negligence, or wonton/wilfull misconduct.

Answer 22

Traditional: Duty to refrain from wilfull or reckless misconduct or harm * duty to warn **anticipated **or **discovered** trespassors of hidden dangers * artificial conditions * natural conditions that cause risk of death Modern trend: duty of care owed to all, depending on circumstances \*\* Permitted trespassors may become licensees - different duty of care

Answer 23

**Licensee**: a social guest or other who enters the land with express of implied permission. Traditional rule: duty to either correct or warn licensee of concealed dangers * no duty to inspect Modern rule: due care depending on circumstances

Answer 24

Land possessors may be liable to trespassor children if: 1. an artificial condition exists where the owner knows/has reason to know children are likely to trespass, * e.g., not restricted access retirement homes 2. he knows/has reason to know that the condition poses an unreasonable risk of death or serious bodily harm, 3. the children, due to youth, do not discover **or** cannot appreciate the danger, * might apply even where children can read warnings 4. utility of maintaining the condition is slight compared to the risk, and 5. the land possessor fails to exercise reasonable care

Answer 25

**Invitees**: persons who enter property for owner's purpose or a mutual purpose (customers) Traditional Rule: **non-delegable **duty of **reasonable** care \*\*\* Not liable for assaults of one customer on another customer

Answer 26

The landlord is liable for: * injuries in common areas * injuries from hidden dangers that the landlord did not warn the tenant of * injuries on premises leased for public use * injuries from hazards the landlord has agreed to repair **Tenant** is liable for injuries arising from conditions withing his own control

Answer 27

Property possessor must exercise **reasonable** care with regard to off-premises persons when he is conducting activities on-premises. * generally not liable for injuries resulting from **natural conditions** * exception: trees in urban settings * duty to prevent unreasonable risk of harm from **articificial conditions**

Answer 28

Sellers of real property have a duty to disclose to buyers **conceale**d and unreasonably dangerous conditions that are known to the seller. * duty continues until the buyer has a reasonable opportunity to discover and remedy the defect

Answer 29

Direct evidence is not necessary to prove negligence; where the harm speaks for itself, circumstantial evidence alone is enough for the jury to infer negligence. Must establish: * an accident of the kind that usually does not occur without negligence * caused by agent or instrumentality within defendant's exclusive control * not due to plaintiff's fault **Medical malpractice**: extended res ipsa where all defendants are jointly and severally liable unless one can exhonerate himself

Answer 30

Plaintiff must show that the injury would not have occurred **but-for** defendant's negligence. * **multiple contributing** tortfeasors are jointly and severally liable * tortfeasors **acting in concert** are jointly and severally liable * **alternative** tortfeasors, where few, are jointly and severally liable unless one can prove the fault of the other/disprove his own fault (burden shift) * where lost chance of recovery, if original chance was at least 50%, tortfeasor is liable for percentage of damages equal to likelihood of responsibility

Answer 31

The **scope** of defendant's liability limited to those harms resulting from risk that made the conduct tortious. * is this the kind of harm that makes the conduct negligent?

Answer 32

* is there a natural and continuous link between the cause and effect? * was it a substantial factor? * was there a direct connection without too many intervening causes? * was the cause likely to produce the effect? * could the defendant have foressen the harm? * was the cause too remote in time?

Answer 33

An intervening cause that breaks the chain of causation. * both the intervening cause and the harm must be unforeseeable [?] * conduct of a 3rd party may (some courts) * if the intervening negligent or criminal conduct is foreseeable, does not supersede

Answer 34

A factual cause that contributes to the harm.

Answer 35

Plaintiff must prove **actual harm** to **persons or property** in order to recover, and must take steps to mitigate damages. * nominal damages: **not** available * actual damages: **may not recover merely for economic harm**, but if personal or property injury is proven, may recover **both economic and non-economic damages** * punitive damages: available where there is **clear and convincing evidence** that defendant acted wilfully, recklessly, or with malice

Answer 36

Plaintiffs may recover: * medical expenses * pain and suffering * emotional distress * lost income Spouses may recover loss of consortium Parents of minor plaintiffs may sometimes recover for loss of services of injured child

Answer 37

* Generally: plaintiff may recover the difference between the **market value** of the property before and after the injury. * Personal Property: most courts allow the recovery of the **cost of repairs** as an alternative * Household Items: courts often measure damages by the **replacement value**

Answer 38

Traditionally: payments to the plaintiff from outside sources, such as medical insurance, are not credited against the liability of any tortfeasor. * evidence of insurance not admissable at trial Modern trend: most states have eliminated the collateral source rule to prevent double recovery. All jurisdictions: payments by the defendant's insurer are credited against his liability

Answer 39

Plaintiff can only recover where he is in a **zone of danger** created by defendant's negligence, he believes he is about to suffer **imminent harm**, and as a result suffers emotional distress. Bystanders may recover if: * the injured person is **closely related**, * the **bystander is present** at the scene, and * the bystander **personally observes** the accident Plaintiff may also recover where a physician misdiagnoses a disease or where a corpse is mishandled, even if no physical injury. \*\*\* Some jurisdictions have abandoned zone of danger test.

Answer 40

Decedent's spouse, next of kin, or personal representative may sue to recover losses suffered due to decedent's death * loss of income * loss of companionship/society (spouses, parents, children - depending on jurisdiction)

Answer 41

Survival statutes typically enable the personal representative of a decedent’s estate to pursue any claims the decedent herself would have had at the time of her death, including claims for damages resulting from both personal injury and property damage. Such claims often involve damages resulting from the tort that injured the decedent and later resulted in her death

Answer 42

Most jurisdictions do not permit a plaintiff to bring a wrongful life claim where a pregnancy results from failure to properly perfomr a contraceptive procedure.

Answer 43

Many states permit recovery for failure to diagnose a defect.

Answer 44

Employers are vicariously liable for their employees' torts if they occurred within the scope of employment. * liable even if tort is part of a detour made by the employee * not liable where employee is on a frolic

Answer 45

Business partners or other engaged in a joint enterprise may liable for eachother's torts where * common purpose * mutual rights of control * acting within the scope of the business purpose

Answer 46

A person may be liable for entrusting a dangerous object to another who is not in a position to care for it. * automobile * gun

Answer 47

Parents are generally **not** liable for the torts of their children. Parents may be liable where * the child is acting as an **agent** of the parent * fail to exercise reasonable prevention of harm to others by the child where the parent * has control * knows or should know of the necessity of exercising such control * state statute provides liability * e.g. incurs liability when signs for driver's license

Answer 48

The U.S. government has waived tort immunity, except for: * assault, battery, FI, FA, malicious prosecution, abuse of process, libel, slander, misrepresentation, and interference with contract * discretionary functions (planning/decision making) * government contractors * inherent government activities (taxing, military, admiralty)

Answer 49

Trend: parents have limited immunity against their children in core parenting activities. No immunity for: * automobile accident injuries * sexual abuse * intentional tortious conduct * acts of dual capacity (parent is dentist)

Answer 50

Most states have eliminated charitable immunity, but may cap damages available against a charity.

Answer 51

Plaintiff can collect all damages from either defendant where: * tortious acts of two or more combine to create indivisible harm, or * multiple tortfeasors act in concert * alternative liability exists * medical malpractice *res ipsa *situations In **pure several liability **jurisdictions, each tortfeasors is only liable for his percent of fault in the harm

Answer 52

Where tortfeasors are subject to joint and several liability to same plaintiff and one has paid more than his share of the damages, he can sue the other for contribution * some jurisdictions allocate share by fault * some allocate share pro rata

Answer 53

Where a party that has a judgment against it can sue the party that is actually at fault or who has assumed the liability. * vicarious liability situations * where a prior agreement to indemnify exists * equitable indemnification, where there is a substantial difference in blameworthiness * strictly liable suppliers against prior suppliers

Answer 54

In a three jurisdictions, the plaintiff's failure to exercise due care eliminates any chance of recovery. However, if defendant had the last clear chance to avoid harm but failed to do so, plaintiff can still recover * helpless plaintiff: defendant is liable if he **knew or should have known** of the peril and **could have avoided the harm** * ****watch for scenarios where D **couldn't** avoid * inattentive plaintiff: defendant liable only if he had actual knowledge of danger **Not** a defense to strict liability * in products strict liability, **unforeseeable misuse** is a complete bar to liability * failure to discover defect does **not** reduce damages

Answer 55

In most jurisdictions, damages are reduced by the plaintiff's contribution to the harm. * pure: plaintiff's fault, however great, is never a complete bar (majority) * modified: if the plaintiff is **less at fault** than all of the defendants combined, his damages are reduced by his percent of fault * majority: where fault is equal, plaint may recover half * minority: where fault is equal, plaintiff gets nothing Does **not** reduce damages in strict liability (majority). * in products strict liability, misuse or modification may reduce liability

Answer 56

Where one person's recovery is reduced by the negligence of another. Does not apply where: * plaintiff's spouse contributed to harm caused by third party * minor plaintiff's parents are contributed to harm * plaintiff was passenger of a car where the driver contributed to harm * plaintiff was the owner of the car where driver contributed to harm

Answer 57

Plaintiff cannot recover where he knowingly and willingly accepted a risk of harm, even in strict liability cases. * exculpatory clauses: generally permitted, unless * disclaim liability for recklessness, wantoness, or gross negligence * gross disparity of bargaining power * enforcing party offers important public services * there is a contract defense * athletic events: participants and spectators at sporting events have assumed the risk of some accidents inherent to the activity, especially if there are warning signs. * in products liability, use of product with knowledge of defect may be assumption of risk and a complete bar to recovery in contributory negligence jurisdictions * courts hesitant to find carelessness to be assumption of risk * will instead be a partial bar in comparative negligence jurisdictions

Answer 58

Strict liability exists for harms caused by abnormally dangerous activities where those harms are caused by the abnormal danger. Factors test: * whether there is a foreseeable and highly significant risk of harm even when due care is exercised (most important) * the gravity of the harm is high * the activity is not commonly engaged in * whether there are positive externalities for the community * whether is is appropriate to the location (not in 3rd R) Aeroplanes are not subject to strict liability. Bursting reservoirs are subject to strict liability (*Rylands v Fletcher*) Parties performing essential public services are exempt from strict liability.

Answer 59

Possession of animals of a class that is not by custom devoted to the service of mankind creates strict liability. Contributory negligence may reduce recovery but does not eliminate (in any jurisdiction). * in some jurisdictions, dog bite statutes create strict liability * in most, only liable if negligent or knew of dangerous propensities * owners of any animals other than household pets are strictly liable for foreseeable damages caused by the animal trespassing * also liable if know or have reason to know household pet is trespassing * Taunting may bar recovery as assumption of risk \*\* not liable to undiscovered trespassors unless the injury is caused by a vicious watchdog

Answer 60

Anyone in the business of selling a product may be strictly liable if it is **defective**, the **defect existed when it left seller's control**, and the defect **caused** the plaintiff's injury. * class of plaintiffs includes any foreseeable person * purchasers, subsequent users, bystanders * circumstantial evidence (res ipsa) may be sufficent to infer defect * only personal injury and property damages may be awarded under strict liability - no purely economic harms * a substantial change in the product is a superceding cause that cuts off liability

Answer 61

Test: defendant is liable even if acted reasonably where: * deviation from the manufacturer's own design * such that the product is more dangerous * causing harm

Answer 62

Consumer expectation test: product is defective in design if it is less safe than contemplated by the ordinary consumer Risk-utility test: product is defective in design if it could have been made safer by additional safety features * plaintiff must prove there are reasonably feasible safety features or alternative designs that would have made the product safer **State of the Art **defense applies \*\*A warning will not necessarily prevent a product from being deemed uncreasonably dangerous

Answer 63

Where product does not include an adequate warning, especially where design cannot be changed to be safer, e.g. prescription drugs Learned intermediary rule: * in the case of prescription drugs * generally: manufacturer does not have duty to warn consumer directly but instead warns the doctor who prescribes the drugs * exception: where manufacturer is aware that the drug will be given directly without personal intervention of doctors or health-care providers **State of the Art** defense applies

Answer 64

* **Assumption of risk**: a complete bar to recovery in contributory negligence jurisdictions, but not in most comparative fault jurisdictions * **Contributory negligence**: not a defense in contributory negligence jurisdictions, but does reduce recovery in comprative negligence jurisdictions * **Substantial change**: a superceding cause that cuts off liability * **Compliance with government standards**: usually evidence but not a complete defense * state tort claims might be pre-empted by federal regulation * **State of the art**: in most jurisdictions evidence but not a complete defense in a failure to warn or design defect case

Answer 65

1. Express 2. Implied * implied warrant of merchantability (cannot be disclaimed) * implied warranty of fitness Operates like a contract claim, with defenses similar to those of strict products liability.

Answer 66

Where defendant: * made a **defamatory** statement * false * diminishes respect, esteem, or goodwill or deters others from association * of or concerning the **particular** plaintiff * reasonable person's understanding standard * if directed at a group so small as to be understood as directed at the particular plaintiff * published to a 3rd party who understands defamatory nature * damaging plaintiff's reputation

Answer 67

Generally **not** liable for the torts of independant k'ors, as defined by * terms of agreement * employer's right of control One **is** liable for torts of independent k'ors where * K'or is engaged in an inherently dangerous activity * there is a non-delegable duty * one is an operator of a premises with a duty to keep it safe for the public * duty exists to comply with safety statute

Answer 68

* Defamation by words written, printed, or otherwise recorded in permanent form is libel * Defamatory radio and television broadcasts are libel * Most courts have held that email can be libel, texts and tweets aren't cleer * Need only prove general damages (damages that compensate the plaintiff for harm to her reputation)

Answer 69

* Defamation by spoken word, gesture, or any form other than libel is slander. To recover for slander, the plaintiff must plead and prove: * special damges - a third party heard the defendant's defamatory comments and acted adversely to her. * Slander per se - need not prove special damages if the statement accuses the plaintiff of * commiting a crime * conduct reflecting poorlly on the plainitff's trade or profession * havinga loathsome disease * sexual miscondut

Answer 70

* i) The defendant’s unauthorized appropriation of the plaintiff’s name, likeness, or identity (Most often commercial appropriation cases involve the use of the plaintiff’s name or picture, but this is not required; * ii) For the defendant’s advantage, commercial or otherwise; * iii) Lack of consent; and * iv) Resulting injury

Answer 71

* Many states recognize an action for unreasonable intrusion upon the plaintiff’s private affairs (also referred to as intrusion upon seclusion). The defendant’s act of intruding, physically or otherwise, into the plaintiff’s private affairs, solitude, or seclusion in a manner or to a degree objectionable to a reasonable person establishes liability. * Publication is not required

Answer 72

A minority of jurisdictions recognize a separate tort of false light. The plaintiff must prove that the defendant * (i) made public facts about the plaintiff that * (ii) placed the plaintiff in a false light, * (iii) which false light would be highly offensive to a reasonable person.

Answer 73

* To recover, the plaintiff must show that: * i) The defendant gave publicity to a matter concerning the private life of another; and * ii) The matter publicized is of a kind that: * a) Would be highly offensive to a reasonable person; and * b) Is not of legitimate concern to the public

Answer 74

1. Act 2. Intent (specific or general or transferred) 3. Causation Note: Everyone is capable of intent; lack of capacity is not a good defense.

Answer 75

Battery requires the intent to bring about or cause harmful or offensive contact with the plaintiff or a logical extension of the plaintiff.

Answer 76

IIED involves intentionally (or recklessly) extreme and outrageous conduct by the defendant resulting in severe emotional distress to the plaintiff. Note: IIED may be the correct answer choice if a prima facie case for another tort has not been met.

Answer 77

- Consent - Self-defense - Defense of others - Defense of property - Necessity

Answer 78

Duty is defined as the duty of care owed to all foreseeable plaintiffs, based upon the applicable standard of care: - The reasonable person - Professionals - Children - Owners/occupiers of land

Answer 79

- Cardozo/Majority View: A plaintiff can recover if he was in the foreseeable zone of danger, meaning that a reasonable person would have foreseen a risk of injury under the circumstances - Andrews/Minority View: Everyone is a foreseeable plaintiff

Answer 80

The common carrier/inkeeper standard of care is a high standard of care that holds common carriers/inkeepers laible for even the slightest bit of negligence that causes harm to passengers/guests.

Answer 81

No duty is owed to an undiscovered trespasser. A landowner owes a duty to discovered and anticipated trespassers to warn and make safe concealed artificial conditions known to the landowner. Landowners must also use reasonable care in the exercise of active operations on the property.

Answer 82

Landowners owe child trespassers a duty of ordinary care to avoid reasonably foreseeable risks of harm caused by artificial conditions on the property. If there is a dangerous condition and the owner knows children frequent the area and that the condition will likely cause injury, the landowner should remedy the situation provided that the cost is relatively low in comparison to the harm the condition would cause.

Answer 83

A licensee is a person who enters property, for his own benefit, with the permission of the landowner. A landower has a duty to warn of any dangerous condition known to him that the licensee is unlikely to discover on her own, and to use reasonable care in operations on the premises. Note: There is no duty to inspect or repair.

Answer 84

An invitee is a person who enters the premises with the owner's permission, for the benefit of the owner/occupier. Because landowners owe the highest duty of care to invitees, they are responsible for inspecting and repairing the property, warning invitees of dangerous conditions they know or should know of, and using reasonable care for operations on premises.

Answer 85

Actual causation is defined as cause in fact. - "But for" test: Would the injury have occurred but for the defendant's actions? - Substantial factor test: If an injury can be attributed to multiple causes, actual cause is determined by asking whether the actions were a substantial factor in bringing about the injury

Answer 86

If a foreseeable intervening cause combines with the defendant's actions to cause the plaintiff's injuries, the defendant is liable. If there is an independent and unforeseeable intervening cause which results in an unforeseeable injury, the defendant is not liable.

Answer 87

A plaintiff may obtain past, present, and prospective damages to compensate him for his personal injuries.

Answer 88

An award of property damages holds a defendant liable for the reasonable cost of repair or the fair market value of the property at the time of the accident.

Answer 89

Punitive damages are available when the defendant's actions were willful and wanton.

Answer 90

- Interest on damages - Attorney's fees

Answer 91

- Contributory negligence - Comparative negligence - Assumption of risk

Answer 92

Contributory negligence serves as a complete bar to the plaintiff's recovery.

Answer 93

In a jurisdiction using comparative negligence, a plaintiff's own negligence is not a bar to recovery; rather, damages will be reduced by the percentage of plaintiff's negligence. - Pure comparative negligence allows a plaintiff to recover whatever proportion of the damages that the jury finds is not attributable to the plaintiff - Partial comparative negligence allows a plaintiff to recover only if she was less then 50% at fault

Answer 94

A defect in the product that existed when the product left the defendant's control.

Answer 95

Negligent conduct need not be shown to hold a commercial supplier liable if there is: 1. A strict duty owed by a commercial supplier 2. Breach of that duty by selling an unreasonably dangerous product 3. Actual and proximate cause 4. Damages

Answer 96

The plaintiff must have suffered actual damages (not merely nominal) to recover. There need not be physical damages, but there must be severe emotional distress. Note: Punitive damages may be recovered in situations where the defendant had an improper motive.

Answer 97

- Theft - Selling property that one does not own - Refusing to return property - Altering property in a substantial manner - Destroying or damaging property such that it is devoid of nearly all value - Misusing property

Answer 98

The plaintiff must show that: 1. He suffered physical injury from the emotional distress 2. He was in the "zone of danger" or "target zone," unless the person injured was closely related to the plaintiff, who was present when the injury occurred and actually perceived the event

Answer 99

- If there is a foreseeable harm caused by an unforeseeable intervening force, the defendant is usually liable - If there is an unforeseeable harm caused by a foreseeable intervening force, the defendant is not liable - If there is an unforeseeable harm caused by an unforeseeable intervening force, the defendant is not liable

Answer 100

Strict liability imposes liability regardless of whether the defendant was at fault. In order to impose strict liability, the plaintiff must show an absolute duty to make safe, breach of that duty, actual and proximate cause, and damages.

Answer 101

An owner is strictly liable for damage done by his trespassing animals so long as the damage is foreseeable. Owners of wild animals are strictly liable for any harm caused by their animals. Owners of domestic animals are not strictly liable for their pets.

Answer 102

Ultra-hazardous activities: 1. Involve a risk of serious harm to individuals or property 2. Cannot be performed without this risk 3. Are not activities that are people normally participate in in the community Note: The exercise of reasonable care will not negate liability for an ultra-hazardous condition/activity.

Answer 103

If the plaintiff knew of a danger then acted unreasonably in the face of the danger and his own actions were the cause of his injury, then contributory negligence may serve as a defense to strict liability.

Answer 104

Licensees and invitees may bring strict liability claims for damages caused by animals. Trespassers who wish to bring strict liability claims, however, must show negligence on the part of the animal owner. Note: When a landowner has a public duty to keep the animals, all plaintiffs must show negligence.

Answer 105

In most states the duty is owed to foreseeable plaintiffs

Answer 106

The harm must be a result of the type of danger anticipated from the animal or ultra-hazardous activity.

Answer 107

The plaintiff must show: 1. Strict duty by a commercial supplier 2. Breach of that duty (that the product was unreasonable dangerous) 3. Actual and proximate cause (defect existed when the product left the defendant's control) 4. Damages (personal injury and/or property damage)

Answer 108

Any foreseeable plaintiff may bring a cause of action against any commercial supplier. Any negligent conduct in the manufacturing, supplying, or retailing of a product is actionable. A plaintiff may recover for personal injury and property damage.

Answer 109

A purchaser or member of the same household may sue a merchant who deals in goods of a particular kind for the sale of goods that are not fit for their ordinary purpose. The plaintiff may recover for personal injury or property damage and may also recover for economic loss.

Answer 110

The product was dangerous beyond the expectation of the ordinary consumer due to the discrepancy between the intended design and the actual product. Note: Food product defects are analyzed as if they were manufacturing defects.

Answer 111

An economically feasible alternative existed that would have made the product less dangerous.

Answer 112

Failure to comply renders a product defective. Compliance provides nonconclusive evidence that the product is not defective.

Answer 113

A defendant will be liable to a person injured by a defective product if the defendant intended for an injury to occur or knew that the injury was substantially certain to occur. Note: If an intentional tort is involved, it is likely battery.

Answer 114

Any consumer, user, or bystander may bring suit; however, the plaintiff must show that the product did not live up to its warranty, not fault on the part of the defendant.

Answer 115

Liability usually arises under a theory of strict liability, but may also be based on intentional misrepresentation or negligent misrepresentation.

Answer 116

The two theories are: - Express warranty - Misrepresentation of fact They differ from the other theories of liability because they involve an affirmative representation by the defendant.

Answer 117

Intentional tort defenses are available; however, negligence defenses are not.

Answer 118

Negligence defenses are available.

Answer 119

It depends on the jurisdiction. In contributory negligence states, it is a defense if the plaintiff voluntarily or unreasonably assumed a known risk. In comparative negligence states, each state applies their comparitive negligence rules. Disclaimers of liability, however, are generally ineffective.

Answer 120

- Assumption of the risk - Contributory negligence, to the same extent as strict liability cases - Failure to give notice of breach

Answer 121

The defenses available for express warranties are the same as under implied warranties. Contributory negligence is a defense for negligent misrepresentations, but is not a defense for intention misrepresentations.

Answer 122

- The usefulenss of the product - Availability of safer alternatives - Whether dangers posed by the product that have been discovered by the trial date - Likelihood of serious harm - Whether the danger was noticeable - Expectation of danger - Whether the injury could have been avoided by using care or adequate instructions - Whether eliminating the danger would substantially interfere with the product's function or make it unreasonably expensive

Answer 123

Failure to comply renders a product defective. Compliance provides nonconclusive evidence that the product is not defective.

Torts Flashcards

(147 cards)