Torts Flashcards
(110 cards)
1
Q
What are the three elements to an intentional tort?
A
1) Voluntary act - Defendant must have the state of mind that directed the physical movement.
2) Level of Intent - Defendant acts with purpose or acts with substantial certainty that the consequence is going to occur (consequence being the act that is tortious). What matters here is that the defendant intended to commit the tort, not necessarily that the defendant intended the particular harm that followed.
3) Causation - Defendant’s conduct was a substantial factor in creating the harm.
2
Q
T/F - Both children and mentally incompetent persons can be held liable for intentional torts if they act with the requisite intent.
A
True.
3
Q
What is transferred intent? What does it apply to?
A
A person intends to commit an intentional tort against another but instead commits:
1) A different tort against the same person,
2) The same intentional tort against a different person, OR
3) A different intentional tort against a different person.
This applies to the intentional torts of battery, assault, false imprisonment, trespass to land, and trespass to chattels. DOES NOT APPLY TO INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.
4
Q
What are the elements of a battery? Go into detail about each.
A
1) Intentional contact with the person of another
2) That is harmful or offensive
3) Without that person’s consent.
Consent can be express or implied. Contact is harmful if it causes an injury, physical impairment, pain, or illness. Contact is offensive if a REASONABLE PERSON would find the contact offensive. Exception - Defendant might be liable if AWARE that the victim is hyper sensitive but acts none the less.
The “person of another” means that person and anything CONNECTED TO the person.
5
Q
Does the plaintiff have to be aware of harmful or offensive contact in order to bring a claim for battery?
A
No.
Example - unconscious medical patient is inappropriately touched by someone and later finds out.
6
Q
What damages are recoverable for battery?
A
No proof of actual harm is required. Thus, you can recover nominal damages.
Some states allow punitive damages if the defendant acted with malice or outrageously.
Egg Shell Plaintiff Rule applies - you are liable for all damages despite whether the plaintiff has some unknown condition.
7
Q
What are the elements of assault?
A
1) An action with the intent to cause contact OR the IMMINENT APPREHENSION of contact,
2) That results in a REASONABLE APPREHENSION of an imminent contact,
3) Without the plaintiff’s consent
Plaintiff’s apprehension must be reasonable. Unlike battery, the PLAINTIFF MUST BE AWARE or have knowledge of the defendant’s act. Actual fear is not required, only a reasonable apprehension of an imminent contact.
Imminent means WITHOUT SIGNIFICANT DELAY. Threats of future harm are not sufficient.
Mere words do not constitute an assault, but words coupled with circumstances can indicate an imminent threat of harmful or offensive contact.
8
Q
What damages are recoverable for assault?
A
No proof of actual damages is required. Plaintiff can recover nominal damages.
Plaintiff can also recover damages from physical harm flowing from the imminent apprehension (ex: plaintiff suffers a heart attack).
9
Q
What are the elements of Intentional Infliction of Emotional Distress (IIED)?
A
1) Intentionally or recklessly
2) Acting with extreme or outrageous conduct
3) That causes the plaintiff severe emotional distress.
Courts are hesitant to award this. Remember that the defendant must act with the intent to cause severe emotional distress or at least be reckless as to the risk of causing it. THERE IS NO TRANSFERRED INTENT HERE.
Extreme or outrageous conduct - that which exceeds the limits of common decency so as to be intolerable to society.
More likely if the plaintiff is in a position of authority or influence over the plaintiff OR the plaintiff is a member of a group that the defendant knows has a heightened sensitivity.
10
Q
Can intentional infliction of emotional distress be claimed by a third party? Explain.
A
Yes
If the conduct is directed at a member of the victim’s immediate family who is present at the time of the conduct, and the defendant is AWARE of that presence, then that person can be liable, WHETHER OR NOT THERE HAS BEEN PHYSICAL INJURY.
If there is a bystander who is present, and the defendant is AWARE of that bystander’s presence, and that bystander suffers distress that results in BODILY INJURY, then that person can be liable.
11
Q
What makes emotional distress severe?
A
The plaintiff must prove that severe emotional distress is beyond what a REASONABLE PERSON could endure.
12
Q
What are the damages for Intentional Infliction of Emotional Distress?
A
Physical injury is NOT required UNLESS the plaintiff is a bystander other than a family member. Otherwise, nominal damages may be awarded.
13
Q
What are the elements of False Imprisonment?
A
1) Act with intent to confine or restrain another within boundaries fixed by the defendant or act knowing with substantial certainty that confinement is to occur;
2) The actions directly or indirectly result in that confinement; and
3) The plaintiff is AWARE OF OR HARMED BY the confinement.
There is no confinement if there is a REASONABLE MEANS OF ESCAPE.
14
Q
T/F - A court may find that a false imprisonment has occurred where a defendant has refused to perform a duty to release a plaintiff from existing confinement or to provide a means of escape.
A
True.
15
Q
What is the Shopkeeper’s Privilege?
A
A shopkeeper can detain a suspected shoplifter without being considered false imprisonment.
Must be for a reasonable amount of time. Can’t continue confinement after duty arises to release the suspect.
16
Q
T/F - A plaintiff can sue for false imprisonment if they are negligently confined.
A
False.
You can sue for negligence though.
17
Q
T/F - Transferred intent does not apply to false imprisonment.
A
False
18
Q
What damages are recoverable for false imprisonment?
A
Actual damages are not required, and nominal damages can be recovered, UNLESS the plaintiff is not aware of the confinement.
19
Q
What are the common defenses to intentional torts?
A
Express or Implied Consent - Plaintiff can express intent by words or actions. Intent can be implied if a reasonable person would object and you are silent OR when you signal indirectly you willingness to endure certain conduct.
Consent by Mistake - A valid defense unless the defendant caused the mistake or knew of it and took advantage of it.
Consent by Fraud - Invalid as a defense if it goes to an essential matter.
Self-Defense - One may use REASONABLE FORCE to defend against an offensive contact or bodily harm. You may also use deadly force if reasonable (usually in your own home).
Defense of Others - REASONABLE FORCE is allowed upon a reasonable belief that that party would be entitled to use self defense.
Defense of Property - Reasonable force is allowed when it is reasonably necessary to prevent tortious harm to property. DEADLY FORCE NOT ALLOWED.
Recapture of Chattels - Reasonable force allowed. If the taking was lawful and merely beyond the time consented to, then only peaceful means may be used.
Force to Regain Possession of Land - Commonly law says reasonable force, but the MODERN RULE SAYS NO FORCE ALLOWED.
20
Q
T/F - The initial aggressor is not entitled to self-defense.
A
True
21
Q
T/F - Parents may use reasonable force or impose reasonable confinement as necessary to discipline their child.
A
True
22
Q
What is the Privilege of Arrest?
A
A private citizen is permitted to use force to arrest in the case of a felony IF:
1) a felony was committed, AND
2) The arresting party has reasonable grounds to suspect that the person being arrested case committed the felony.
In other words, a private citizen cannot make a mistake is to if the felony was actually committed.
NOTE: A policeman who makes a mistake as to whether a felony has been committed is not subject to liability.
23
Q
T/F - For misdemeanors, an arrest may only be made if there is a nuisance.
A
False. Only if there is a breach of the peace.
24
Q
What are the elements for trespass to chattels? What damages are recoverable?
A
1) Intentional interference with the plaintiff’s right to chattels (only intent to do the act is necessary / not intent to deprive plaintiff). MISTAKE OF LEGALITY IS NOT A DEFENSE.
2) By Dispossessing the plaintiff OR Using or intermeddling with the plaintiff’s use of the chattel,
Plaintiff may recover damage and loss of use for dispossession. Plaintiff may recover only actual damages for use or intermeddling (includes diminution in value or the cost of repair..
25
What constitutes a conversion? What damages are recoverable?
Defendant intentionally commits an act depriving the plaintiff of possession of his or her chattel or interfering with the plaintiff's chattel in a manner SO SERIOUS as to deprive the plaintiff ENTIRELY of the use of the chattel.
Can occur by exercising dominion or control over the plaintiff's chattel. If the original acquisition was not wrongful, then plaintiff must first demand return of the chattel before suing for conversion.
Plaintiff can recover the chattel's FULL VALUE at the time of the conversion. Plaintiff can also seeek an action for replevin (return of the chattel).
NOTE: Defendant must only intend to commit the act that interferes. MISTAKE OF LAW OR FACT IS NOT A DEFENSE.
26
How do we tell if there is a conversion or a trespass to chattels?
Conversion is to such a degree that the defendant should have to pay the full value.
Courts consider the following factor:
1) The duration or extent of the interference;
2) Defendant's intent to assert a right inconsistent with the rightful possessor;
3) Defendant's GOOD FAITH;
4) Expense or inconvenience to the plaintiff; and
5) Extent of harm to the chattel
27
What constitutes a trespass to land? What damages are recoverable?
Defendant intentionally causes a physical invasion of someone's land. Intent to enter the land is all that is needed (not intent to trespass). This includes failing to leave the plaintiff's property after a lawful right of entry has expired.
MISTAKE IS NOT A DEFENSE.
No proof of actual damages is required. Nominal damages can be recovered.
28
Is necessity a defense to trespass (private or public)?
A private necessity (emergency) to trespass is a privilege belongs to a person who enters onto the land of another or interferes with their personal property to prevent an injury or to prevent another harm. THIS IS NOT A COMPLETE DEFENSE. Still must pay actual damages caused while trespassing.
A public necessity to trespass is a privilege belonging to a trespasser who does so to protect a large number of people from public calamities. THIS IS A COMPLETE DEFENSE TO ALL DAMAGES.
29
What constitutes a private nuisance?
Private nuisance - An activity that SUBSTANTIALLY and UNREASONABLY interferes with another's USE and ENJOYMENT of land.
Intent can be negligent, intent, reckless, OR the result of an abnormally dangerous activity.
NOTE: Courts have historically refused to find the blocking of sunlight or the obstruction of views to be a nuisance UNLESS they are purposefully done to "spite" the other person.
30
Defenses to Private Nuisance.
If negligent - assumption of risk or comparative negligence might apply.
Compliance with state or local administrative regulations is not a complete defense, but it is evidence as to reasonableness.
"Coming to the nuisance" - If you move somewhere knowing about a conduct, courts are hesitant to allow to you complain. Again, this is not a complete defense.
31
What constitutes a public nuisance?
An unreasonable interference with a right COMMON to the general public.
Plaintiff MUST show SPECIAL HARM that is distinct from the way the rest of the public is harmed.
32
What are the remedies for private and public nuisances?
Injunction - Courts hesitate to award injunctions in circumstances when the value of the activity is great compared to the harm that it has created.
Damages - This is the usual remedy when courts are reluctant to award an injunction. This includes harm suffered and permanent damages.
33
What is abatement?
Only allowed in a private nuisance situation. A person may enter another's land to abate a private nuisance AFTER giving the defendant notice of the nuisance and the defendant refuses to act.
Public nuisances will be abated by a public agency/authority.
34
What is are the elements of negligence? Explain each in detail.
1) Duty - There is a legal duty owed to all FORESEEABLE persons who may be injured for failure to follow a reasonable standard of care. NO DUTY TO AFFIRMATIVELY ACT (even if it appears unreasonable) UNLESS there is an assumption of duty, you place another in danger, by authority, or by relationship (business-patron).
2) Breach - Has the defendant acted as a reasonably prudent person? If no, we have a breach. Cost-benefit analysis and custom can be evidence of whether there has been a breach. Professionals are held to the same standard as other similar professionals in the local community.
3) Cause in Fact - "But For Test"
4) Proximate Cause - Is the harm foreseeable and within the scope of why the act is negligent?
5) Actual Harm - Must show actual harm. Economic or nominal damages will not be sufficient.
35
Is a duty to act reasonably owed to rescuers?
It depends. A person who comes to the aid of another is a FORESEEABLE PLAINTIFF.
Firefighter's Rule - Certain emergency personnel (ex: police officers and firefighters) are barred from recovering damages IF the harm cause arises out of their duties as emergency personnel.
Example: If a firefighter goes into a burning apartment and is injured because of a faulty repaired stair step by the landlord, then the firefighter may sue. He wasn't burned by a fire, rather he was injured because of the landlord's negligence.
36
What physical characteristics are taken into account when determining if someone has acted as a reasonably prudent person in a negligence action?
Particular physical characteristics are taken into account such as blindness or deafness.
Intoxicated people are held to the same standard as sober people UNLESS intoxication occurs involuntarily.
37
What is the standard of care for physicians?
Traditionally, it was locally based. But the standard now is based on a national standard.
Must provide INFORMED CONSENT (explain all the risks). Not required if the risks are commonly known, patient is unconscious, patient waives/refuses the information, patient is incompetent, or the patient would be harmed by disclosure (ex: cause a heart attack).
38
What is Negligence Per Se? What are the defenses to it?
This is when a criminal law OR regulatory statute imposes a particular duty for the protection or benefit of others. The statute establishes the standard of care.
Plaintiff must:
1) Be in the class of people intended to be protected,
2) The harm must be the type of harm that the statute was intended to protect against, and
3) The harm was caused by the violation of that statute.
Defenses - Compliance with the statute was impossible or an emergency justified the violation, OR that complying with the statute would have been more dangerous than violating the statute.
39
If you have negligence per se, and the plaintiff also violates the statute, what happens?
Counts as comparative or contributor negligence (depending on the jurisdiction that you are in).
40
Describe the standard of care for Common Carriers and Innkeepers.
Traditionally - both were held to the highest duty of care in the operation of business.
Modern Approach - Common Carriers are held to a higher standard still, which Innkeepers are liable only for ordinary negligence.
Common Carriers and Innkeepers HAVE AN AFFIRMATIVE DUTY TO ACT based on the special relationship with passengers and guests.
41
What is the liability of automobile drivers to others in the car? What is a "guest statute?"
States that have "guest statutes" provide that the driver of a car is only liable to other riders for recklessly negligent, grossly negligent, wanton, or willful misconduct.
Majority of jurisdictions have abandoned guest statutes and apply an ordinary negligence standard to the driver of a car.
42
What is the standard of care in Bailments?
Reasonable care under the circumstances.
43
What is the standard of care in emergency situations
That of a REASONABLE PERSON IN THE SAME EMERGENCY SITUATION.
44
What duty of care to possessors of land owe to others on their land? Explain in detail.
Jurisdictions are split!
TRADITIONAL RULE - Depends on whether the person is an invitee, licensee, or a trespasser. Must refrain from wilful or wanton misconduct or reckless harm.
Trespassers - Must warn or protect from hidden dangers all DISCOVERED TRESPASSERS. No duty to warn about natural conditions or artificial conditions that don't cause the risk of death. NO DUTY AT ALL TO UNDISCOVERED TRESPASSERS.
Licensees - Duty to correct or warn licensees of CONCEALED DANGERS. NO DUTY TO INSPECT for dangers.
Invitees - Duty of reasonable care.
MODERN RULE - Due care is owed to ALL invitees and licensees. This is a reasonable care standard. Modern courts don't distinguish between invitees or licensees.
45
T/F - A landowner can avoid a duty of care to others on his/her land by delegating that duty to an independent contractor performing work on the land.
False.
You can NEVER avoid the duty of care by assigning care of your property to an independent contractor.
46
What is the attractive nuisance doctrine?
A possessor of land may be liable for injuries to CHILDREN trespassing on the land IF:
1) An artificial condition exists in a place where the owner KNOWS or has reason to know children are likely to trespass (artificial condition doesn't have to be the reason they trespass);
2) The land possessor knows or has reason to know the artificial condition poses an unreasonable risk of death or serious bodily harm;
3) The children, because of their youth, DO NOT DISCOVER OR CANNOT APPRECIATE THE DANGER;
4) The utility to the land possessor of maintaining the condition is SLIGHT compared to the risk of injury; AND
5) The land possessor FAILS TO EXERCISE REASONABLE CARE (has to give a reasonable effort to protect the children / doesn't have to break the bank trying to make the place safer)
47
What is the extend of liability of landlords and tenants?
Landlords remain liable for injuries in common areas, injuries from hidden dangers about which the landlord did not ward the tenant, injuries from premises that are leased for public use, or injuries from a hazard the landlord has agreed to repair or faultily repaired.
Landlords generally are not liable for off-premises injuries resulting from natural conditions (exception for trees in urban areas). With artificial conditions, a landlord must prevent unreasonable risk to those off-premises.
Tenants - as an occupier of land, tenants are liable for injuries arising from conditions WITHIN THE TENANT'S CONTROL.
48
What are the liabilities of Sellers of Real Property?
Duty to disclose to buyers CONCEALED and UNREASONABLY dangerous conditions KNOWN to the seller. The duty continues until the buyer has a reasonable opportunity to discover and remedy the defect.
49
What is Res Ipsa Loquitur? How does it apply to medical malpractice cases?
Some cases only involve CIRCUMSTANTIAL evidence of negligence which is sufficient when:
1) The accident was of a kind that usually does not occur absent negligence;
2) The accident was caused by an agent or instrumentality withing the defendant's EXCLUSIVE CONTROL; and
3) Was NOT DUE TO THE PLAINTIFF'S OWN FAULT.
The doctrine, in medical malpractice cases, shifts the burden by holding ALL defendants jointly and severally liable UNLESS they can exonerate themselves.
50
The causation element of negligence is split into two parts. Describe the two parts.
1) Cause In Fact - Courts use the "But For Test" to determine if the defendant's negligence was the cause in fact of the plaintiff's harm. The plaintiff must show that the injury would not have occurred BUT FOR the defendant's negligence.
2) Proximate Cause - Focus is on the SCOPE OF LIABILITY here. Ask whether this is the kind of harm that made the court decide the defendant was negligent. Some courts follow the Andrews' Dissent in Palsgraf and look at the following factors: (a) natural continuous sequence; (b) substantial factor; (c) direct connection or too many intervening causes; (d) likely effect; (e) foreseeable harm?; and (f) too remote in time?
Note: Some courts combine cause in fact and proximate cause and instruct juries to find whether the negligence was a substantial factor in bringing about the harm.
51
T/F - When tortious acts of two or more defendants are each a factual cause of one harm, then Joint and Several Liability applies.
What does Joint and Severally liable mean?
True.
This means that the plaintiff can sue either defendant and collect ALL of his damages from that one plaintiff.
52
What will the court do if the plaintiff's harm was caused by only one of the few defendants (usually two) and it cannot be determined which one caused the harm?
Provided that the plaintiff can prove that the harm came from one of them, the courts will shift the burden of proof to the defendants and will impose joint and several liability on both UNLESS they can show which one of them caused the harm.
53
What is concert of action in a negligence case? What is the result?
This is when two or more tortfeasors were acting together collectively and that caused the plaintiff's harm. All defendants will be joint and severally liable.
54
Explain Loss of Chance of Recovery.
If a physician negligently reduces the plaintiff's chance of survival, then that plaintiff can recover. Courts allow a recovery for the loss of chance of survival. Measure of damages corresponds with the likelihood that the defendant's negligence caused the harm.
ONLY ALLOWED WHEN PATIENT'S CHANCE OF RECOVERY WAS LESS THAT 50% BEFORE THE NEGLIGENCE.
55
T/F - The Eggshell Plaintiff rule does not apply to negligence cases.
False.
Take the plaintiff as they are. These rare types of damages based on the plaintiff's special situation are still foreseeable.
56
Explain Intervening Causes and Superseding Causes.
Intervening causes are those that contribute to the harm.
Superseding causes break the chain of causation. An unforeseeable intervening cause is a superseding cause which severs connection to the negligent act.
Courts have held that if an intervening cause is foreseeable, then the initial negligent actor should be liable. MODERN COURTS don't focus on intervening or superseding causes.
Someone who leaves a stack of guns at a school will be liable for someone coming in and shooting up the place. It is a foreseeable superseding cause.
57
What damages are recoverable in negligence actions? Is there a duty to mitigate?
A plaintiff in a negligence action must always prove actual harm. Personal injury includes (medical expenses past and future, pain and suffering, and lost income).Thus, NOMINAL DAMAGES ARE NOT RECOVERABLE.
Property Damage - Generally, a plaintiff may recover the difference between the market value of the property before and after the injury. Harm to personal property is limited to the cost of repairs. Harm to household items are limited to the replacement value as a measure of damages.
Punitive Damages - Recoverable if the plaintiff can show by CLEAR AND CONVINCING EVIDENCE that the defendant acted WILLFULLY, RECKLESSLY, or with MALICE.
PURELY ECONOMIC DAMAGES CANNOT BE RECOVERED (must be coupled with actual harm).
There is a duty to mitigate on the plaintiff's side as a limitation on damages.
58
What is the Collateral Source Rule with regard to negligence liability?
Traditionally, payments to the plaintiff from outside sources (medical insurance) would NOT be credited against the liability of any tortfeasor.
The MODERN TREND is a substantially modified version of the rule to avoid double recovery. Payments made to the plaintiff by the defendant's insurer are credited against the defendant's liability.
59
Are plaintiffs able to recover under a claim for negligent infliction of emotional distress? If so, when? Can bystanders recover?
Yes.
NIED is generally not recovered under except for limited circumstances (ex: person thinks they are about to get run over by a negligent driver, and they are so frightened that it manifests a heart attack).
Under NIED, the plaintiff can recover for emotional distress if he was WITHIN THE ZONE OF DANGER and FEARED FOR HIS OWN SAFETY.
Under NIED, for a bystander to recover for emotional distress, they must show that the person injured is: (1) closely related to them; (2) the bystander was present at the scene; AND (3) personally observed the accident.
EXCEPTION TO THE PHYSICAL INJURY REQUIREMENT FOR NIED: physician misdiagnoses a disease; OR funeral home mishandles a body.
60
What are wrongful death and survival actions? What are the damages that are recoverable?
Wrongful death suits are brought by the decedent's spouse, next of kin, or personal representative to recover for LOSS OF SUPPORT/INCOME and LOSS OF COMPANIONSHIP AND SOCIETY.
Survival actions are brought by the representative of the decedent's estate on behalf of the decedent that died. Claims include damages resulting from PERSONAL INJURY or PROPERTY DAMAGE.
61
T/F - Many jurisdictions allow the child to recover for the parent's companionship in a wrongful death action.
True
62
What are wrongful life and wrongful birth claims? Are they allowed?
Wrongful life claims are NOT PERMITTED in most states. These are based on the failure to perform a contraceptive procedure that leads to a pregnancy.
Wrongful birth claims are PERMITTED in many states. This results from a failure to diagnose a defect.
63
What is Respondeat Superior?
Employers are vicariously liable for the employee's torts if they occurred WITHIN THE SCOPE OF EMPLOYMENT (detours = liability / frolic = no liability).
Direct negligence - hiring or failure to train.
64
How are torts by independent contractors handled? Are employers who hire independent contractors ever vicariously liable?
Employer is generally NOT liable for torts committed by independent contractors. HOWEVER, there is sometimes confusion as to whether the contractor is truly independent.
An employer cannot shield liability for employee negligence by describing its employees as independent contractors. The question to ask is whether or not the employer retains a right of CONTROL over the way the employee works.
Employer may always be liable for torts of independent contractors in the following situations:
1) Inherently dangerous activities;
2) Non-delegable duties (property owner duties to invitees;
3) Duty of an operator of premises to keep the premises safe for the public; and
4) Duty to comply with safety statutes
May always be liable if negligent in hiring, instructing, or making use of an independent contractor.
65
Explain the liability of business partners.
Partners in a joint enterprise may be liable for each other's torts committed within the SCOPE OF THE BUSINESS PURPOSE when:
1) Two or more parties have a common purpose, and
2) MUTUAL RIGHT TO CONTROL.
66
What is negligent entrustment?
A person can be directly liable for negligently entrusting a vehicle, gun, or dangerous device to someone who is not in the position to care for it.
67
Can Parents be liable for their children's torts?
Parents GENERALLY are NOT vicariously liable for their minor children's torts.
Exceptions: child is an agent for the parents; state statutes provide for liability; and parent approves application for child to get a license (liability if under a state statute).
Parents may be LIABLE FOR THEIR OWN NEGLIGENCE with respect to their children's conduct. Parent has a duty to exercise reasonable care to prevent a minor child from harming a third party provided that the parent: (1) has the ability to control the child; and (2) knows or should know of the necessity for exercising such control.
68
What is "Dram Shop" liability?
Limits the liability of bars and bartenders for injuries caused when people drink too much and injure third-parties. Recognized in many states in statutes or in case law.
69
Is anyone immune from liability for negligence?
Federal government is immune for certain tort actions such as assault, battery, and false imprisonment. Federal government is not going to be liable in traditional governmental activities (tax collection, Admiralty, military activity, etc.)
State governments have similar immunities.
70
When are government employees liable for negligence? When are they immune? What is the Westfall Act?
Immunity applies if performing a discretionary function that isn't done with malice or improper purpose. NO IMMUNITY FOR MINISTERIAL ACTS (driving on business).
Westfall Act - PRECLUDES ANY LIABILITY ON THE PART OF A FEDERAL EMPLOYEE UNDER STATE TORT LAW.
71
Are there any intra-family immunities in tort law?
NO INTERSPOUSAL IMMUNITY (eliminated in every jurisdiction).
There is parent-child immunity from tort claims by children against their parents when the parents are performing CORE PARENTING ACTIVITIES. Can still sue parents for auto accidents, sexual abuse, and intentional torts.
72
What is charitable immunity?
Traditionally, charities were immune from tort liability. Most states have ELIMINATED this immunity.
However, many states CAP DAMAGES available against the charity.
73
What are the different ways liability is shared among multiple defendants?
Joint and Several liability - Plaintiff can collect entire amount from any of the defendants (no double recovery).
Contribution - Tortfeasor can sue other tortfeasors for contribution if they pay more than their fair share of the damages.
Pure Several Liability - Each tortfeasor is only liable for his OWN SHARE of the harm.
Indemnification - SHIFTS ENTIRE LOSS from one party to another
74
What is the rule in a contributory negligence jurisdiction? What is the Last Clear Chance Doctrine?
The plaintiff's failure to exercise due care eliminates any chance of recovery. If the plaintiff is at fault at all, then recovery is completely barred.
Last Clear Chance Doctrine - if the defendant had the last clear chance to avoid the harm, but failed to do so, then the plaintiff can still recover despite the plaintiff's contributory negligence.
75
What is the rule in a comparative negligence jurisdiction? What is pure comparative negligence? What is modified comparative negligence?
Apportion damages between the defendant and the plaintiff based on their relative degrees of fault.
A pure comparative jurisdiction holds that a plaintiff's contributory negligence is NEVER a complete bar to recovery. Plaintiff's damages are reduced by the extent to which the plaintiff contributed to the harm.
Modified Comparative Negligence jurisdictions have two views:
MAJORITY - If the plaintiff is 50% at fault or less, then the plaintiff can recover (51% = no recovery).
MINORITY - If the plaintiff is LESS THAN 50% at fault, he may recover (50% = no recovery).
76
T/F - A plaintiff's degree of negligence is compared to the negligence of each individual defendant.
False
The plaintiff's degree of negligence is compared to the negligence of all of the defendants combined.
77
What is Imputed Contributory Negligence?
This is where one person's recovery is limited because of another person's negligence (such as an employee). Does not apply to spouses, parents, or automobile passengers.
78
What does the phrase "assumption of risk" mean? When is it relevant? What is its effect?
This means that the plaintiff has knowingly and willingly accepted a risk of harm and as a result, CANNOT RECOVER.
This ONLY APPLIES IN NEGLIGENCE CLAIMS. This is the equivalent to consent in intentional tort claims.
79
Can parties to a contract disclaim liability on negligence? What clause in the contract does so?
Yes by using an "Exculpatory Clause." Courts hesitate to enforce these if:
1) They disclaim reckless, wanton, or gross negligence; or
2) Gross disparity of bargaining power
Generally, COMMON CARRIERS, INNKEEPERS, AND EMPLOYERS CANNOT DISCLAIM LIABILITY FOR NEGLIGENCE.
80
Can spectators at athletic events sue for negligence if injured at a game? If so, how?
No, they assume the risk of certain injuries and accidents that are inherent in the game or activity. Defendants can make their case stronger by posting warning signs. Even if in a jurisdiction that doesn't have an assumption of risk for athletic events, the cases always come out in favor of the defendants.
81
Consent v.s. Assumption of Risk
Consent = Intentional Torts (complete bar to recovery)
Assumption of Risk = Negligence (complete bar to recovery)
82
What does strict liability mean, and what are the three categories that fall under it?
Strict liability means that the plaintiff does not need to show that the defendant was negligent. The three categories that fall under strict liability are:
1) Abnormally Dangerous Activities
2) Wild Animals
3) Defective Products
83
What makes an activity abnormally dangerous? Are defendants strictly liable for all harms flowing from the abnormally dangerous activity?
Factors:
1) Whether it creates a foreseeable and highly significant risk of physical harm EVEN when due care is exercised;
2) Whether the activity is uncommon; and
3) Whether the activity is appropriate for its location
SCOPE OF LIABILITY - Only strictly liable for the harm that flows from the risk that made the activity abnormally dangerous (ex: if you run over someone with an explosive truck, you are not strictly liable).
84
T/F - Airplanes are subject to strict liability.
Traditionally - True
Modern Trend - False (apply negligence law)
85
What is the Rule of Rylands v. Fletcher?
Narrow Rule - Strict liability for bursting reservoirs.
86
When are owners liable for their pets? Wild v.s. Domestic.
Wild Animals - Strict liability for any species or class that is not by custom devoted to the service of mankind in the place where he is being kept.
Domestic Animals - Dog bite statutes make give rise to liability but only if you are negligent OR you had reason to know of your dog's (or domestic animal's) dangerous propensities.
Trespassing Animals - Owners of any animal's are liable for REASONABLY FORESEEABLE damage caused by his animal while the animal is trespassing on another's land.
87
Is a plaintiff in a strict liability case for damage by a wild animal ever barred from recovery? What are the defenses a defendant can use?
Comparative Negligence States - Plaintiff's contributory negligence may reduce recovery.
Contributory Negligence States - Plaintiffs are never barred from recovery.
ASSUMPTION OF RISK - If the plaintiff is AWARE of the dangerous propensity of an animal and TAUNTS the animal, he may be BARRED from recovering under the doctrine of assumption of risk.
If the accident occurs in the performing of an essential public service, there is no strict liability. Could still be negligence (maybe a K-9 dog?).
88
When a product is defective, what are the three types of claims one may bring? Which is most favorable to plaintiffs? Why?
1) Negligence,
2) Strict Liability, and
3) Breach of contract or warranty.
The most favorable to plaintiffs is strict liability because they do not have to show negligence. Simply, they must show that the product was defective.
89
Who is liable in a strict products liability action? What are the elements that a plaintiff must show in a strict products liability action?
Anyone in the business of SELLING a product that is defective can be liable (manufacturer, distributor, or seller (retailer) of the defective product)
Plaintiff must show:
1) The product was defective by manufacture, design, or failure to warn;
2) The defect existed at the time the product left the defendant's control; and
3) The defect caused the plaintiff's injury.
90
In strict products liability, when is there a manufacturing defect?
When the product deviates from what the manufacturer intended. Test is whether the product conformed to the defendant's own specifications.
If the product deviates, and that makes it more dangerous, which causes your harm, then the defendant is liable even if the defendant acted reasonably.
91
In strict products liability, when is there a design defect?
Two Tests:
1) Consumer Expectation Test: Product is defective if it is less safe than contemplated by the ordinary consumer.
2) Risk-Utility Test: Product is defective in design if it would have been made safer by additional safety features.
These are essentially cases where products were negligently designed.
92
In strict products liability, when is there a failure to warn? How does this apply to pharmaceutical drugs?
When there is a failure to warn (duh). Warnings are most important when you cannot change the design of the product without making the product ineffective.
"Learned Intermediary Rule" - Manufacturer of prescription drugs does not have a duty to warn the consumer directly, but satisfies that duty by warning the doctor who prescribes the drug.
EXCEPTION - Manufacturer is aware that the drug will be given directly (over the counter) without the personal intervention of doctors or health-care providers.
93
In strict products liability, what do courts do when it is difficult to prove that a defect in the product caused the plaintiff's harm?
They often instruct the jury with an instruction analogous to Res Ipsa Loquitur.
Circumstantial evidence can be sufficient if the injury is:
1) the kind that would not ordinarily result in the absence of a product defect; AND
2) we can eliminate other causes of the harm.
94
Who may be a party to a strict products liability action?
Plaintiffs - ANYONE FORESEEABLY INJURED by a defective product can be a plaintiff. This includes purchasers, subsequent users, and even bystanders.
Defendants - Anyone in the BUSINESS OF SELLING the defective product. This includes manufacturers, distributors, and the retailer. The casual seller is NOT liable for a defective product (ex: think of a garages sale).
95
What damages can a plaintiff recover in a strict products liability action?
The plaintiff can recover for personal injury or property damage.
REMEMBER THAT PURELY ECONOMIC LOSS CANNOT BE BROUGHT UNDER STRICT LIABILITY OR NEGLIGENCE. THESE CLAIMS MUST BE BROUGHT UNDER BREACH OF WARRANTY.
96
What are the defenses to strict products liability in various jurisdictions?
Comparative Negligence Jurisdiction - Plaintiff's own negligence reduces recovery.
Contributory Negligence Jurisdiction - A defense when the plaintiff has knowledge of the defect and unreasonably proceeded in the face of that defect. NOT A DEFENSE IF THE PLAINTIFF WAS NEGLIGENT IN FAILING TO DISCOVER THE DEFECT.
Product Misuse - In a comparative fault jurisdiction, this will reduce recovery. In a contributory fault jurisdiction, this will completely bar recovery.
Assumption of Risk - This is a complete bar to recovery. However, comparative fault jurisdictions are hesitant to make certain assumptions of risk.
SUBSTANTIAL CHANGE IN PRODUCT - a substantial change that is a superseding cause that CUTS OFF LIABILITY.
Compliance with Government Standards - Evidence, but not a complete defense. That is unless the action is brought under a state law claim that is exclusively regulated by federal law.
State of the Art Defense - Evidence, but not a complete defense. This is where technology is new and the level of scientific and technical knowledge at the time of distribution was limited. Some states have statutes allowing this to be a complete bar to recovery.
Disclaimers by the Seller - generally NOT going to bar a valid products liability claim.
97
When can a plaintiff bring a contract claim under tort law? What are the different types of warranties? Can they be disclaimed? What are the defenses?
It is possible to frame a contract allegation as a tort claim AND a contract claim for breach of warranty at the same time.
There are express warranties (affirmative guarantees of product safety) and implied warranties (implied warranty of merchantability / fitness for a particular purpose).
Disclaimers are possible, but they must be conspicuous and in writing.
Defenses - same as strictly liability defenses (contributory negligence, misuse, substantial change, etc.)
NOTE: CANNOT DISCLAIM IMPLIED WARRANTY OF MERCHANTABILITY TO THE EXTENT THAT IT RUNS TO DAMAGES FOR PERSONAL INJURY.
NOTE: If a plaintiff fails to provide adequate notice of the breach, then that breach of warranty claim can be barred.
98
What are the elements for a claim for Defamation? What is the level of intent required? What damages are recoverable?
Plaintiff must prove the defendant:
1) Made a false defamatory statement
2) Of or concerning the plaintiff
3) Published to a third party who understands its defamatory nature; AND
4) Damaged the plaintiff's reputation.
The level of intent differs depending on the plaintiff:
1) Public Officials and Public Figures - must show that the statement is false and that the statement was made with ACTUAL MALICE (knowledge or reckless disregard).
2) Private Individuals - For matters of or not of public concern, Plaintiff must show negligence.
Damages Recoverable:
1) Public Officials and Public Figures - Actual damages (no presumed damages)
2) Private Individuals for matters of public concern - Actual damages (no presumed damages)
3) Private Individuals for matters NOT of public concern - General damages (broader than actual damages and includes presumed damages).
99
T/F - Opinions are never actionable as defamation.
False.
They can be actionable if the person who states the opinion implies that they have objective facts to support it.
100
What is Libel? What damages must be proven?
Libel is defamation that is WRITTEN, printed, or otherwise recorded in a permanent form (TV and radio broadcasts are libel too).
Plaintiff must prove GENERAL DAMAGES (harm to reputation). Damages are limited if we have libel per quod (libel not libelous on its face).
101
What is slander? What damages must be proven? What is Slander Per Se?
Defamation by SPOKEN WORD or GESTURE, or any other form other than libel. Plaintiff must prove either:
1) SPECIAL DAMAGES (concrete harm); OR
2) SLANDER PER SE
Slander Per Se falls into one of four categories of statements about the plaintiff:
1) Plaintiff has committed a serious crime or crime of moral terpitude;
2) Plaintiff is unfit for his or her trade or business;
3) Plaintiff has a loathsome disease; or
4) Plaintiff has committed severe sexual misconduct
102
Name the defenses to defamation in detail.
1) Consent
2) Absolute Privilege - statements made: (a) in the course of judicial proceedings; (b) in the course of legislative proceedings; (c) between husband and wife; and (d) in required publications by radio and TV (statements about a political candidate that cannot be censored).
3) Conditional Privilege - Statements made in good faith pursuant to some duty or responsibility. These include: (a) in the interest of the defendant (defending reputation); (b) in the interest of the recipient; or (c) in the public's interest.
103
What are the four types of Invasion of Privacy? Explain each.
1) Misappropriation of the Right to Publicity - Unauthorized appropriation of a plaintiff's name or likeness for personal advantage that injures the plaintiff.
2) Unreasonable Intrusion upon the Plaintiff's Private Affairs - Intrusion upon a plaintiff's private affairs, solitude, or seclusion in a manner that is OBJECTIONABLE TO A REASONABLE PERSON.
3) False Light - Putting together a series of half-truths that convey a false impression.
4) Public Disclosure of Private Facts - Giving publicity to a matter concerning the private life of the plaintiff that is HIGHLY OFFENSIVE and NOT OF LEGITIMATE CONCERN to the public. This tort is almost impossible to win under because just about everything is of legitimate public concern.
104
What defenses are available to claims of invasion of privacy?
The same defenses of absolute and conditional privileges applicable to defamation apply to false light allegations and matters of public concern.
Consent is a defense, but mistake of consent can negate that defense.
TRUTH IS NOT A DEFENSE TO INVASION OF PRIVACY, BUT IT IS ALWAYS A DEFENSE TO DEFAMATION.
105
What are the elements for Intentional Misrepresentation? What damages are allowed for recovery?
1) False representation about a material fact (can arise through failure to disclose);
2) Scienter - must have known the representation was false or acted with reckless disregard;
3) Intent - Defendant must intend to induce the plaintiff to act in reliance on the misrepresentation;
4) Causation - plaintiff must have ACTUALLY RELIED on the misrepresentation to his/her detriment;
5) Justifiable reliance - Cant be obviously false. Must be reasonable; AND
6) Damages - ACTUAL, ECONOMIC, OR PECUNIARY LOSS. NO NOMINAL DAMAGES AVAILABLE. Majority of jurisdictions have "benefit of the bargain" as the recover. A minority of jurisdictions allow only out-of-pocket damages.
106
What are the elements of Negligent Misrepresentation? What defenses are available? What damages are available?
1) Defendant provides false information
2) To a plaintiff
3) As a result of the defendant's negligence in preparing the information
Defenses available to the extent of regular negligence defenses.
Pecuniary Damages allowed if caused by that plaintiff's justifiable reliance ONLY if there is either: (1) a contractual relationship with the defendant; OR (2) the plaintiff is a third party KNOWN by the defendant to be a member of the limited group for whose benefit the information is supplied; AND THE INFORMATION WAS USED IN A TRANSACTION KNOWN BY THE DEFENDANT TO BE INFLUENCED BY HIS NEGLIGENCE.
Out of Pocket Damages - can be recovered for consequential damages is the negligent representation is proven with sufficient certainty.
107
Define the elements for Intentional Interference with Business Relations. Are there any special contract situations where this tort is not recoverable under? Are there any justifications?
1) Defendant KNEW of a VALID contractual relationship between a plaintiff and a third-party;
2) Defendant INTENTIONALLY INTERFERED with the contract, RESULTING IN BREACH; AND
3) The breach CAUSED DAMAGES to the plaintiff.
CANNOT BE A CONTRACT THAT IS TERMINABLE AT-WILL.
NOTE: Defendant may be liable when preventing contract fulfillment OR by substantially adding to the burden of performance. Defendant's conduct MUST NOT EXCEED FAIR COMPETITION and free expression.
JUSTIFICATIONS - Interference can be justified if motivated by considerations of health, public safety, or public morals. Some courts add an element to the tort that you must induce a breach by "improper means" instead of allowing a justification defense.
108
What are the elements for Misappropriation of Trade Secrets?
1) Plaintiff owns a VALID trade secret that is NOT GENERALLY KNOWN;
2) Plaintiff has taken REASONABLE PRECAUTIONS to protect it; AND
3) Defendant has taken the secret by IMPROPER MEANS.
109
What is Trade Libel? What is Slander of Title? What are the elements of each? What damages are recoverable?
Trade libel is a statement that injures a plaintiffs BUSINESS PRODUCT. MUST PROVE SPECIAL DAMAGES. Must prove:
1) Publication;
2) Of a derogatory statement;
3) Related to the quality of the plaintiff's business or products;
4) That damages the business relationships of the plaintiff.
Slander of title is a false statement that calls into question a plaintiff's OWNERSHIP of real property. Must prove the following:
1) Publication;
2) Of a FALSE statement;
3) Derogatory to the plaintiff's title;
4) WITH MALICE;
5) Causing SPECIAL DAMAGES; AND
6) DIMINISHING the value in the eyes of third parties.
110
Is wrongful use of the legal system a claim that can be brought under tort law? If so, how? What damages are recoverable? Is anyone immune?
Two ways:
1) Malicious Prosecution - must prove: (a) intentional and malicious pursuit of a legal action; (b) for an improper purpose; (c) without probable cause; (d) that is dismissed in favor of the plaintiff.
2) Abuse of Process - must prove: (a) proper legal procedure for an alternative motive; (b) willfully committed improperly; (c) that causes damages.
Damages - legal expenses, lost work, loss of reputation, and emotional distress.
Prosecutors enjoy ABSOLUTE IMMUNITY to this tort in civil law suits. Does NOT PROTECTED IN CRIMINAL PROSECUTION.
