Torts Flashcards

Question

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Answer 1

Fresh pursuit relates to the requirement that a person recapturing a chattel or a shopkeeper detaining a suspected thief must do so without unreasonable delay after discovering the loss. **Example:** A restaurant owner sees a man leaving the restaurant without paying for his meal. The owner chases the man down the street until he overtakes and detains him.

Answer 2

A person may commit an otherwise tortuous act if it is done under legal process or is otherwise authorized by law. It is a defense that is usually used by police officers or private persons who have made an arrest either with or without a warrant and who are now facing charges of false imprisonment in relation to their having made the arrest. **Example:** With a warrant, a police officer arrests a man suspected of burglary. The man was innocent and sues the officer.

Answer 3

A person may commit an otherwise tortuous act if that person is acting in an emergency situation to protect himself or others from a threatened injury to person or property. The person claiming the defense of necessity may act on appearances. A reasonable mistake is permitted. **Example:** A man stuck in a snowstorm breaks and enters into a cabin he does not own in order to save his life.

Answer 4

Reasonableness is a concept that permeates all of the defenses to intentional torts. It is the standard by which the amount of force used or the time and manner of a re-entry, recapture, or detention is judged.

Answer 5

Liability for negligence requires proof of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and that the breach was the actual and proximate cause of damages suffered by the plaintiff. **Example:** A shopper at a local store slips and falls on a spill that had been left on the floor for over an hour and had no warning or barrier placed around the spill. The man sues the store for damages because he broke his hip. Here the store owes a duty to the shopper to keep the store safe, the store breached that duty by letting the spill stay on the floor for over an hour without any warning, and the spill was the actual and proximate cause of the damages suffered by the shopper, therefore liability will be found.

Answer 6

The elements of negligence are: duty, breach, causation, and damages. Example:

Answer 7

The general rule of duty holds that everyone owes a duty to exercise due care so as not to subject others to unreasonable risks of harm. **Example:** Drivers owe a duty to drive with care as not to injure others.

Answer 8

Under Palsgraf v. Long Island Railroad Co., Justice Cardozo's majority opinion held that a defendant owes a duty only to those who could foreseeably be endangered by the defendant's negligent act. Therefore, according to the rule, there is no duty owed to a plaintiff who is in a position of apparent safety when the defendant commits a negligent act. This is the so-called "orbit of danger" (zone of danger) test. **Example:** A car runs off the road hits a pole, the pole hits a trailer with a boulder in it, the boulder launches over 500 feet into the air, hits a tractor parked on a hill, the tractor rolls down a hill, strikes a parked car, the parked car rolls down the hill gaining speed until it crashes into a bike that launches into the air and hits a pedestrian who was over a mile away from the original car that hit the pole. Under Cardozo, the driver of the car would not be liable because the pedestrian was unforeseeable and within a position of apparent safety, i.e. the pedestrian was not in the “zone of danger”.

Answer 9

In the Palsgraf case, Justice Andrews gave a dissenting opinion that has been applied as the majority opinion in other cases. Andrews argued that if the defendant owes a duty to anyone, then he owes a duty to everyone who could foreseeably be injured by his action. Thus, Cardozo looked at the issue from a perspective of identifying whether a duty is owed, while Andrews considered the issue as one of proximate causation. **Example:** A car runs off the road hits a pole, the pole hits a trailer with a boulder in it, the boulder launches over 500 feet into the air, hits a tractor parked on a hill, the tractor rolls down a hill, strikes a parked car, the parked car rolls down the hill gaining speed until it crashes into a bike that launches into the air and hits a pedestrian who was over a mile away from the original car that hit the pole. Under Andrews, the defendant owes a duty to the pedestrian because anyone could have been hurt by the driver’s negligence.

Answer 10

Certain statutes impose liability upon owners of vehicles for the tortuous acts committed by persons to whom the owner intentionally furnishes the vehicle. **Example:** John loans his car to Defendant who was involved in a car accident due to Defendant’s negligence. John is liable in jurisdictions that have owner liability statutes.

Answer 11

A driver of a motor vehicle, in the absence of a statute otherwise, owes to persons riding in the vehicle a duty of driving with due care. However, a number of jurisdictions have statutes that provide that a guest passenger in an automobile cannot recover from the owner or operator of the automobile unless the owner or operator is guilty of willful misconduct, recklessness, or intoxication. **Example:** Defendant was willfully reckless in driving and injured a passenger in his car after crashing into a tree. Under a guest passenger statute, the passenger may sue for damages, whereas if the driver was not willfully reckless, the guest may not sue for damages. In jurisdictions that do not have statutes otherwise, the injured passenger may sue for damages.

Answer 12

A person who serves alcoholic beverages to one who is intoxicated is not, in the absence of a statute stating otherwise, liable for the damages done by the intoxicated person. However, in those jurisdictions which have statutes traditionally referred to as dram shop acts, an owner, a bartender or other persons serving alcoholic beverages to a person who is intoxicated can be held liable for the foreseeable damages caused by the intoxicated person. **Example:** Bartender serves more alcohol to a woman he knows is wasted. Woman leaves the bar, gets in her car, and runs over a pedestrian in the parking lot, killing the pedestrian. In jurisdictions that do not have statutes stating otherwise, Bartender is not liable for damages. In jurisdictions that do have “Dram Shop” acts/statutes, Bartender and Owner are liable for damages as outlined in the statute.

Answer 13

A parent who furnishes a vehicle to the members of his family for customary convenience, assumes liability for the tortuous acts committed by those persons when the car is being driven for a family purpose. **Example:** Parent asks Son to drive to the store to buy a loaf of bread. Son gets into an accident because he was texting while driving. Under the Family Purpose Doctrine, Parent is liable.

Answer 14

A person whose negligence creates a situation in which he needs to be rescued may be held liable for injuries incurred by his rescuer. **Example:** Idiot jumps off a cliff. Rescuer is injured while descending cliff to rescue Idiot. Idiot is liable for Rescuer’s injuries.

Answer 15

A person who embarks upon the performance of services for another, whether gratuitously or for consideration, is under a duty to render those services with due care. This person, however, is under no duty to complete the performance of the services unless abandonment would prejudice the other party's position. The rendering of aid in an emergency constitutes the performance of services, and a duty of care is imposed upon those who undertake to render such aid. Some jurisdictions have enacted statutes designed to encourage physicians to render emergency aid, by limiting the liability that could otherwise be imposed upon them. Generally speaking, liability can be imposed upon them only for reckless or wanton misconduct. **Example:** Good Samaritan uses the Heimlich Maneuver to help a man who was choking on his food at a local diner. In giving the maneuver, the Good Samaritan used due care, nevertheless he injured the choking man. In this case, although the Good Samaritan injured the choking man, because he used due care, he is not liable for the choking man’s injuries.

Answer 16

An omission to act to prevent injury (nonfeasance), does not give rise to tort liability unless there is a special relationship or special circumstance that creates an affirmative duty requiring the defendant to act to protect the plaintiff. An affirmative duty to act may arise when there is a close familial relationship, such as parent and child or husband and wife; when the defendant and the plaintiff are coventurers; when the defendant caused the plaintiff to be in danger or injured; when the defendant has begun to render assistance to the plaintiff; when the defendant fails to perform a duty to control the behavior of others; when the defendant is an innkeeper; or when the defendant operates a common carrier such as a plane or ship. **Example:** Example 1: Man sees a woman being raped in a parking lot. He is under no duty to help her. Example 2: Husband sees his wife being raped in a parking lot. He is under a duty to try and help her if he can.

Answer 17

A business invitee is a person who has express or implied permission to enter business property to do business with the land occupier. **Example:** A shop owner asks a contractor to come out to give him an estimate on fixing the leaky roof to the shop.

Answer 18

A public invitee enters property in the possession of another for the purpose for which the property is held open to the public. It is not required that a business purpose be involved. Public employees acting within the scope of their official duties are included in the category of public invitees. **Example:** A security guard who works at the local store is a Public Invitee as are those who enter into store for any purpose.

Answer 19

A licensee is a person who enters property with the express or implied permission of the land occupier. Such entry is not for the purpose of doing business. **Example:** Homeowner invites his neighbor over for dinner. Neighbor is a Licensee.

Answer 20

A trespasser is someone who enters the real property of another without express or implied consent. **Example:** A stranger climbs over a fence to Homeowner’s property in order to take a “shortcut” to the store. Stranger is a trespasser.

Answer 21

A constant trespasser upon a limited area is a trespasser whose presence is known, or should be known, to land occupier because of the trespasser's repeated acts of trespassing. **Example:** A stranger walks up the walkway and knocks on the front door of Homeowner. Stranger is a Constant Trespasser Upon a Limited Area.

Answer 22

A land occupier owes a duty of ordinary care to invitees, which includes reasonably inspecting the land for dangerous conditions and repairing those dangerous conditions that a reasonable inspection would reveal. **Example:** Land Occupier fails to repair a broken step to the front door. Business Invitee comes over and injures himself on the step. Land Occupier will be liable.

Answer 23

A landowner owes a duty of ordinary care to licensees, which includes either 1) warning licensees of known dangerous conditions, unless they are obvious or already known to the licensee, or 2) repairing dangerous conditions to make the property safe. **Example:** Homeowner fails to repair a broken step to the front door that he knows about, although it is not obvious the step is broken. Licensee comes over and injures himself on the step. Homeowner will be liable.

Answer 24

The land occupier generally owes no duty of care to the trespasser unless the trespasser is a constant trespasser upon a limited area or a child to whom the Attractive Nuisance Doctrine applies. **Example:** Trespasser falls on Land Occupier’s wilderness property and injures himself. Land Occupier is not liable.

Answer 25

The land occupier owes no duty to a child trespasser unless he is a constant trespasser upon a limited area or unless the case is one in which the Attractive Nuisance Doctrine applies. **Example:** Land Occupier fails to fix the gate to the fence around his swimming pool and a child trespasser drowns in it. Land Occupier is liable.

Answer 26

The Attractive Nuisance Doctrine, recognized in most jurisdictions, imposes a duty upon land occupiers for the protection of young children whose trespasses are to be anticipated and whose immaturity renders them particularly susceptible to injury from dangerous conditions on the land. The land occupier owes a duty of reasonable care to eliminate a danger or to otherwise protect children when the following elements are present: 1) foreseeability of trespass, 2) foreseeability of serious harm, 3) the child is unaware of the danger, and 4) the benefit to the owner of maintaining the condition in its dangerous form is slight when weighted against the risk to children. **Example:** Land Occupier fails to fix the gate to the fence around his swimming pool and a child trespasser drowns in it. Land Occupier is liable.

Answer 27

The land occupier owes a duty to maintain the premises in a reasonably safe condition for the protection of passersby and occupiers of adjoining premises. This includes the duty of inspection to discover and correct those defects that a reasonable inspection would reveal. **Example:** Land Occupier knows his tree is dead and could fall. Pedestrian is walking past Land Occupier’s house and the tree falls injuring Pedestrian. Land Occupier is liable.

Answer 28

Under Rowland v. Christian, the court eliminated the distinction between business invitee, licensee, and trespasser, and found that the land occupier owes a duty to act as a "reasonable man" for the purposes of rendering the occupied property safe for others. **Example:** Land Occupier fails to fix a hole in the walkway to the front door. A visitor breaks his ankle when he steps into the hole. Land Occupier is liable.

Answer 29

A land occupier traditionally owed no duty to others for the care of natural conditions on the occupied property. However, the recent trend may be to impose a duty of reasonable care as to natural conditions, at least in those situations where the condition is known to the landowner. **Example:** A person is injured on Land Occupier’s property after stepping into a sinkhole. Land Occupier knew of the sinkhole and failed to mark it accordingly. Land Occupier will most likely be found liable.

Answer 30

Res Ipsa Loquitur is a rule of evidence that aids the plaintiff in proving the element of breach of duty when the plaintiff is unable to establish by other evidence that the defendant acted unreasonably. The doctrine proceeds upon the theory that the occurrence itself speaks of negligence and it is unnecessary for the plaintiff to show the exact circumstances whereby the defendant breached his or her duty of care. The plaintiff must prove: * the defendant was in complete control of the instrument that caused the harm; * the plaintiff is not guilty of contributory negligence; * the defendant is in a better position to explain what happened; and * injuries of this type do not normally occur absent such negligence. The literal interpretation is "the thing speaks for itself.” **Example:** A man is eating at a local diner, bites into his hamburger and there is a human toe in it. The man gets sick and has to be hospitalized.

Answer 31

An actual cause is the cause which starts, ignites, or makes possible the result which follows, and which satisfies the "But For" or Substantial Factor Test. **Example:** A driver fails to stop at a red light and rear ends the car in front of him.

Answer 32

An actual cause of harm is the proximate cause of that harm if the act occurs in a natural and continuous sequence of events, unbroken by unforeseeable, independent, intervening acts and results in the harm. When a defendant's act directly causes injury to the plaintiff without any intervening causes, the majority of jurisdictions hold that act to be the proximate cause of harm unless the harm is unforeseeable. However, in some jurisdictions, if the defendant's act directly causes harm, his act is the proximate cause regardless of whether the harm was foreseeable or unforeseeable. When a dependent intervening act occurs, the chain of causation is broken only if the result of the dependent intervening act is highly unforeseeable. When an independent intervening act occurs, the chain of causation is broken unless the result of the independent act is foreseeable. **Example:**

Answer 33

An independent intervening act is one that would have occurred even in the absence of the original negligence. It breaks the chain of causation unless the act or its result was foreseeable in light of the original negligent act. **Example:** Friend asks Joe to store his lawnmower while he is on an extended trip overseas. Joe agrees, but leaves the lawnmower outside. A tornado hits the ground where the lawnmower was and destroys it. Although Joe left the lawnmower outside, it is arguable that a tornado sweeping away the lawnmower was not foreseeable.

Answer 34

A dependent intervening act is one that would not have occurred in the absence of the original negligence. It is nearly always considered to be part of the chain of events set in motion by the original negligent act. Therefore, a dependent intervening act breaks the chain of causation only if the act was highly unforeseeable. **Example:** Careless Joe spills gasoline outside neighbor’s shed and does not clean up the spill. Neighbor’s child is playing with matches and ignites the gasoline burning down the shed. Even though the fire would not have started had the child not been playing with matches, Careless Joe will be held liable because it is foreseeable that spilled gasoline may ignite and start a fire.

Answer 35

The "But For" Test is used to establish actual cause. To apply the test, the plaintiff must show that but for the defendant's act, the plaintiff would not have been injured. **Example:** Plaintiff suffers whiplash from being rear-ended by the Defendant. “But For” the Defendant rear-ending Plaintiff, Plaintiff would not have been injured.

Answer 36

The Substantial Factor Test is used to establish actual cause where more than one act contributes to the plaintiff's harm. The defendant is said to be an actual cause of the plaintiff's harm if the defendant’s act is a substantial factor in bringing the harm about. This means that the defendant's act contributed in more than a trivial degree to the plaintiff's injury. The test applies where two or more acts combine to produce a single indivisible injury regardless of whether either or any of the acts by itself would have caused the injury. Where more than one act could have caused the injury by itself, then each actor may be held jointly and severally liable. However, where an act would not have caused the injury without the other contributing acts, liability may be apportioned between the tortfeasors. **Example:** Plaintiff suffers injury from asbestos poisoning through sources involving three different tortfeasors. In this case, all three tortfeasors will be held liable.

Answer 37

Under the doctrine of negligence per se, the elements of duty and breach are proved when a defendant violates a safety statute that was intended to protect the class of people to which the plaintiff belongs from the kind of injury the defendant caused. In California, a presumption of negligence arises. **Example:** maintenance and the airplane crashes. Airline is responsible for all injuries/deaths due to the crash because the safety statute was designed to protect people from crashing airplanes.

Answer 38

Under the minority doctrine of contributory negligence, if the plaintiff's failure to exercise reasonable care for his own safety is a contributing factor to his own injury, he is barred from recovery for the defendant's negligent action. **Example:** A man is injured in an auto accident that was not his fault, but he was not wearing a seatbelt, so his injuries were worse than they would have been had he exercised due care to wear his seatbelt. Under this doctrine, the man would be barred from recovery.

Answer 39

Modernly, the doctrine of comparative negligence has replaced contributory negligence, so that liability is apportioned according to the relative degrees of fault of the plaintiff and defendant. In a pure comparative negligence jurisdiction like California, the plaintiff will recover some damages no matter how great his own negligence was. In partial comparative negligence jurisdictions, the plaintiff will not recover if his own negligence equals or exceeds the defendant's. **Example:** A man is injured in an auto accident that was not his fault, but he was not wearing a seatbelt, so his injuries were worse than they would have been had he exercised due care to wear his seatbelt. Under this doctrine, the man would be awarded damages according to what the court deemed was only caused by the Defendant. In partial comparative negligence jurisdictions, if the man was 50% or more the cause of his injuries, he will not recover.

Answer 40

Under the Doctrine of Avoidable Consequences, a plaintiff must act reasonably to mitigate his damages. If the plaintiff fails to act reasonably to minimize his loss or injury, the amount of damages he recovers may be reduced. **Example:** A man receives an eye injury due to Plaintiff’s negligence and needs a common and relatively simple eye surgery with very little risk. Man refuses surgery and is blinded as a result. Under this doctrine, man’s recovery will be reduced because he did not reasonably mitigate his damages.

Answer 41

The last clear chance doctrine limits the contributory negligence defense so that even if the plaintiff was contributorily negligent, he will be permitted to recover if the defendant had a superior opportunity to avoid the accident and failed to do so. **Example:** If the plaintiff, through his own negligence, is in a position of helpless or inattentive peril and therefore unable to avoid an impending accident, and the defendant could have avoided the accident through the exercise of due care, but failed to do so, then the plaintiff's contributory negligence will not bar his recovery from the defendant.

Answer 42

Under the defense of assumption of the risk, a plaintiff assumes the risk of harm if he voluntarily subjects himself to a known and appreciated risk. Such consent may be expressly created by agreement between the parties, or it may be implied by the plaintiff's conduct. At common law, assumption of the risk is a complete bar to recovery in a negligence action. **Example:** A woman is injured after falling off of a friend’s horse.

Answer 43

Under the theory of vicarious liability, a defendant who is not charged with personal fault or wrongdoing may be held liable for the tortfeasor's act because of the defendant's relationship to the tortfeasor (e.g., the defendant is an employer, joint venturer, car owner, bailor, parent, etc.) A defendant who is held vicariously liable has the right to indemnification by the tortfeasor. **Example:** Employee recklessly drives employer’s van onto the sidewalk and hits Pedestrian. Employer may be Vicariously Liable.

Answer 44

Joint tortfeasors consist of two or more persons who join together to commit a tortuous act. Their status is similar to that of co-conspirators in criminal law, and each is vicariously liable for the acts done by the other in the furtherance of the common design. **Example:**

Answer 45

Concurrent tortfeasors consist of two or more persons who are not acting in concert with each other, but whose acts combine to produce a single indivisible injury to the plaintiff. In some jurisdictions, joint and several liability is applied in a pure form, holding each concurrent tortfeasor liable for the full amount of the harm. However, a majority of jurisdictions will apportion damages by using a comparative fault system. Vicarious liability does not apply. **Example:**

Answer 46

A successive tortfeasor is one whose negligence follows an initial injury and adds to, or aggravates, the existing injury. Under the rules of proximate causation, if the second tortfeasor's negligent act did not break the chain of causation set in motion by the first tortfeasor, then the first tortfeasor can be held liable for both acts. However, if the second tortfeasor's negligent act did break the chain of proximate causation, the first tortfeasor can only be held liable for his own negligence. Example:

Answer 47

Joint and several liability is imposed upon joint and concurrent (but not successive) tortfeasors. This means that each is responsible for the full amount of the plaintiff's injury and the full amount of a related court judgment. Judgments for the full amount may be obtained against any of the tortfeasors, but the plaintiff is not entitled to recover more than the total judgment. Thus, satisfaction from one tortfeasor will discharge the liability of the others to the plaintiff. Example:

Answer 48

Contribution relates to a claim by one concurrent tortfeasor against another concurrent tortfeasor, requesting reimbursement of the other's proportional share of a court judgment. It is typically used after joint and several liability has been found and one defendant has had to pay the plaintiff more than his pro rata share of the damages. Example:

Answer 49

Indemnity is a shifting of the liability from a defendant who is only secondarily or vicariously liable to the party who is primarily liable. Where it applies, indemnification allows the secondarily or vicariously liable defendant who has paid a court judgment to obtain full reimbursement from the party who is primarily liable. Some jurisdictions, including California, have adopted a rule of partial indemnity on the basis of relative fault of the parties. Example:

Answer 50

At common law, husband-wife immunity prevented one spouse from maintaining an action against the other. It was argued that such suits between spouses would disrupt domestic tranquility. Modernly, husband-wife immunity does not exist in most jurisdictions. Example:

Answer 51

Traditionally parent-child immunity has been applied so that a parent and minor child are immune from suits against each other in tort action. However, suits involving interference with property interests have been freely allowed. Many jurisdictions have abolished parent-child immunity. Example:

Answer 52

Governmental immunity has been applied to prevent suits against a governmental entity unless that entity has consented to the suit. A substantial number of jurisdictions have totally abolished the immunity of municipal governments, and in several states, the immunity of the state government has also been terminated. Example:

Answer 53

Charitable immunity traditionally prevented non-paying recipients from suing a charity. However, paying recipients could sue the charity because, as to them, it was not a charity; it was a business. Modernly the trend is to abolish the immunity and to hold non-profit organizations liable to the same extent as any other wrongdoing defendant. Example:

Answer 54

Under a wrongful death statute, when the defendant's intentional or negligent act causes the death of a person, the surviving members of the decedent's family can bring an action to recover for their loss. At common law, no such cause of action existed for the surviving members of the decedent's family. Example:

Answer 55

Survival statutes allow a decedent's pre-existing cause of action against another to continue after the death of the parties originally involved. At common law, the death of either party to a lawsuit prior to judgment for whatever reason terminated all tort causes of action, except in the case of torts involving personal property. Example:

Answer 56

Wrongful birth actions have been accepted in an increasing number of jurisdictions. They usually relate to a claim of negligence against a physician or laboratory related to the failure to supply information concerning potential birth defects or claimed negligence involved in the failure to prevent birth by contraception, abortion, vasectomy, etc. Example:

Answer 57

At common law, pre-natal injuries could not be the basis of a suit by a child against a tortfeasor. It is now generally held that the child, if born alive, should not be denied a cause of action merely because the injury occurred prior to birth. Example:

Answer 58

Negligent supervision is a cause of action that is brought by a plaintiff who suffered injury because of a child or other person who was inadequately supervised by one who owed a duty of supervision. Most commonly, it is brought against parents who failed to exercise ordinary parental discretion as to the manner in which their child is supervised or cared for. Modernly, a child may bring an action against his or her own parents for injuries sustained by the child because of lack of proper supervision. Example:

Answer 59

Strict liability is liability without fault. It is imposed against a defendant even though the defendant has done nothing intentionally wrong and has not acted unreasonably under the circumstances. Such liability is imposed, traditionally, for the keeping of dangerous animals, and the carrying on of abnormally dangerous activities. Example:

Answer 60

Under Rylands v. Fletcher, one who brings something onto his land that is non-natural and likely to cause injury if it escapes is strictly liable for all damages resulting from an escape. Example:

Answer 61

A manufacturer or seller who releases an unreasonably dangerous product into the stream of commerce is liable for harm caused by the product. In order to recover, it must be proved that the product was defective in design, manufacture, or warning, and one of four separate and distinct theories of liability must be asserted: intentional, negligence, breach of warranty, or strict liability. Example:

Answer 62

In the case of MacPherson v. Buick, Justice Cardozo dispensed with the previously applied requirement of privity of contract in products liability cases and extended the manufacturer's duty of care to include the ultimate consumer of the product, whether or not the consumer was the actual purchaser of the product. Later cases extended the duty to include not just the purchaser or the ultimate consumer, but to include all persons and property likely to be endangered by the product's probable use, such as the consumer's family or guests, or even near bystanders. Example:

Answer 63

In order for a plaintiff to recover under a negligence theory of products liability, the plaintiff must prove duty, breach, causation, and damages. A duty of care originally extended only to those in privity of contract, but under McPherson v. Buick, the duty was extended to all foreseeable users. To establish breach, the plaintiff must show that the product failed to meet ordinary commercial expectations. Damages are limited to personal and property. Example:

Answer 64

Liability can be imposed against the manufacturer or seller of a product based upon the buyer's reliance upon an express or implied warranty that the goods are of merchantable quality or are fit for their intended purpose. Example:

Answer 65

Strict liability may be imposed against a manufacturer or seller of a product which is defective and thereby unsafe for its anticipated use, or for failure to warn the consumer of an inherent danger involved in the use of the product when put to an intended or foreseeable use. To prevail in a products strict liability action, the plaintiff must prove: 1) manufacture or sale of the product was by defendant, 2) the product was defective, 3) the product and its defective aspects were the actual and proximate cause of the plaintiff's injuries, and 4) the defect existed at the time the product left the defendant's hands. Example:

Answer 66

In order to recover for intentional misrepresentation, or deceit, the plaintiff must prove that the defendant made a false statement of material fact with scienter and with intent to induce the plaintiff's reliance, and that the plaintiff justifiably relied, causing the plaintiff damage. Example:

Answer 67

In order to recover for negligent misrepresentation, the plaintiff must prove that the defendant breached his duty to exercise due care in acquiring and transmitting information, and made a false statement of material fact, with an intent to induce the plaintiff's reliance, and that the plaintiff justifiably relied, causing the plaintiff damage. Example:

Answer 68

Defamation is a false and defamatory statement, published intentionally or negligently to a third person, that the third person understood applied to the plaintiff, and which caused damage to the plaintiff. In order to recover damages, in addition to proving each element of defamation, the plaintiff is required to show that he or she has made a demand for a retraction from the defendant that would be given equal publicity, and the plaintiff must show that the defendant has refused to give the retraction. Example:

Answer 69

Inducement is the extrinsic facts necessary to understand the defamation. Innuendo is the connection between the inducement and the defamation that explains why the statement is defamatory. Example:

Answer 70

Colloquium is the offer of extrinsic evidence to explain the defamatory sense of the defendant's statement, and is included in a complaint when a statement is not defamatory on its face. Example:

Answer 71

Libel is written defamation. Example:

Answer 72

Libel Per Se is a statement that is clearly defamatory on its face, meaning that inducement and innuendo are not needed to establish the fact that the statement is defamatory. For libel per se, proof of special damages is not required, and general damages are presumed. Example:

Answer 73

Libel per quod is not defamatory on its face but is defamatory only when viewed in light of outside circumstances, meaning that the inducement and innuendo are needed to establish the defamation. Libel per quod requires proof of special damages in some jurisdictions. Example:

Answer 74

Slander, which is defamation that is published through the spoken word, requires proof of special pecuniary damages that flow directly from the defamation. Once these are proved, general damages are recoverable. Example:

Answer 75

Slander Per Se results from a slanderous statement that is sufficiently serious to allow the plaintiff to recover without proof of special damages. The slanderous statement must allege criminal behavior, loathsome disease, unchastity, or improper business practices. For slander per se, the plaintiff is not required to prove special damages in order to recover general damages. Example:

Answer 76

As the term is used in the law of defamation, special damages are those of a pecuniary nature, such as loss of a job or loss of customers or business. Example:

Answer 77

Where there is a retraction statute, the plaintiff needs to show a demand and a refusal for retraction giving equal publicity, unless plaintiff can prove special damages. Can be a defense IF: Need to be made immediately after defamation and clearly connected with it so as to effectively negate the defamation. If no defense: 1) diminish actual damages, 2) negate malice, 3) show punitives are unwarranted, 4) where qualified privilege show good intentions of defendant indicating privilege was not abused. Example:

Answer 78

Under an absolute privilege the defendant has complete immunity from liability for defamation, even if he defames maliciously, knowing the statements to be untrue. Absolute privileges exist for statements: 1) during judicial proceedings, 2) during legislative proceedings, 3) during executive government functions, 4) which are official statements of government officials, 5) between husband and wife, or 6) which are broadcast under the equal time doctrine. Example:

Answer 79

Under a qualified privilege, the defendant has immunity from liability for defamation if he is acting for the following socially desirable purposes: 1) to protect the defendant's own interests, 2) to protect the interest of others, 3) to protect a common interest, 4) to protect a public interest, 5) to offer an opinion within the Fair Comment Privilege. A qualified immunity can be lost if the statement was irrelevant, made with malice, with a bad faith belief, or if it was excessively publicized. Example:

Answer 80

The Fair Comment Privilege is a common law rule derived from the First Amendment rights of free speech and free press. The privilege applies to statements of opinion that have been made in good faith on matters of public interest. Covered by this privilege are opinions about newsworthy persons, events, products, art, works, etc. Example:

Answer 81

Under New York Times v. Sullivan, the U.S. Supreme Court held that a public official may not recover damages for defamation bearing upon his or her qualifications for a position unless he or she can prove by clear and convincing evidence that the statement was made with actual malice. Later cases extended the rule to public figures. Example:

Answer 82

Generally, causes of action for invasion of privacy relates to the violation of one's right to be let alone. One of four theories must be charged: appropriation of likeness, intrusion upon seclusion, public disclosure of private facts, or false light. Example:

Answer 83

Malicious Prosecution is a cause of action against a defendant who previously filed criminal or civil proceedings against the plaintiff without probable cause and with malice. The original proceeding must have ended in favor of the party who is now suing for malicious prosecution. Example:

Answer 84

Under tort law, a person is liable for abuse of process if he previously initiated a legal proceeding against the plaintiff, with an ulterior motive, and for an improper purpose. Example:

Answer 85

Disparagement, or trade libel, is the publication of an untrue or misleading statement about another's business or product in an attempt to influence a person not to deal with the business. Example:

Answer 86

Interference with Economic Relationship is a broad cause of action alleging an intentional interference with one's business relationships. Included are interferences with contractual relationships, expected commercial relationships, and intimidation of employees, clients, etc. To prevail, the plaintiff must prove that the defendant intentionally and unlawfully interfered with the plaintiff's business or enterprise, and that the defendant's act resulted in commercial or economic harm to the plaintiff. Example:

Answer 87

General damages are non-pecuniary in nature and are presumed by the law to be incurred based upon the commission of the tort. General damages need not be specifically claimed and proved. Examples are pain, suffering and inconvenience. Example:

Answer 88

Punitive damages, also called exemplary damages, are awarded to the plaintiff for the purpose of punishing the defendant for malicious or reckless conduct. The intent is to make an "example" of the defendant's conduct so that such conduct will not be repeated. Example:

Answer 89

Out of Pocket damages are usually considered to be the same thing as special damages since they are pecuniary in nature. However, in an action for misrepresentation, out-of-pocket damages are calculated by comparing the difference between what the plaintiff paid, to the value of what the plaintiff received. Example:

Answer 90

Under the Loss of the Benefit of the Bargain Theory, special damages for misrepresentation are calculated by considering the value received by the plaintiff as compared to the value that the defendant stated the plaintiff would receive. Example:

Torts Flashcards

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