torts

Question 1

torts

Private Nuisance

Answer 1

1. A thing or activity that substantially and unreasonably interferes with another individual’s use or enjoyment of his land. 2. The interference must be intentional, negligent, reckless, or the result of abnormally dangerous conduct Unreasonable- injury outweighs usefulness of D’s actions Substantial- interference that would be offensive, inconvenient, or annoying to a normal, reasonable person in the community.

Question 2

torts

strict liability for domesticated animals

Answer 2

1. owner knows or has reason to know of the animal’s dangerous propensities, and 2. the harm results from those dangerous propensities.

Question 3

torts

IIED

Answer 3

A defendant is liable for intentionally or recklessly acting with extreme and outrageous conduct that causes the plaintiff severe emotional distress. NOTE: Conduct is extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society. Courts are more likely to find a defendant’s abusive language and conduct to be extreme and outrageous if the plaintiff is a member of a group with a known heightened sensitivity (e.g., a pregnant woman).

Question 4

torts

IIED Bystanders

Answer 4

When the defendant’s conduct is directed at a third-party victim, the defendant is liable if he intentionally or recklessly causes severe emotional distress to a member of the victim’s immediate family who is present at the time of the defendant’s conduct (and the defendant is aware of such presence), whether or not such distress results in bodily injury. (I R SED family present)

Question 5

torts

Duty Cardozo

Answer 5

a defendant is liable only to a plaintiff who is within the “zone of foreseeable harm.”

Question 6

torts

NIED

Answer 6

D’s negligence creates foreseeable risk of injury to P and D’s action causes a threat of physical impact that causes emotional distress -threat of physical impact directed at P or someone in immediate presence of P -bystander must be within zone of danger; if not, may be allowed if close relationship to injured person, present at scene, and personally observed injury -physical symptoms required (maj)

Question 7

torts

Learned Intermediary Rule

Answer 7

he manufacturer of a prescription drug typically satisfies its duty to warn the consumer by informing the prescribing physician of problems with the drug rather than informing the patient taking the drug.

Question 8

torts

Negligence elements

Answer 8

P must prove: 1. duty, 2. breach, 3. causation, and 4. damages

Question 9

torts

Driver’s duty to passengers

Answer 9

In most jurisdictions, an automobile driver owes a duty of ordinary reasonable care to all passengers, including guests (i.e., individuals who do not confer an economic benefit for the ride on the driver). However, a minority of states distinguish between the two with “guest statutes,” which impose only a duty to refrain from gross or wanton and willful misconduct with respect to a guest.

Question 10

torts

duty to invitees

Answer 10

An invitee is one who enters the land of another by invitation, often, but not necessarily, for the business purposes of the landowner. A land possessor owes an invitee the duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them.

Question 11

torts

Negligence template

Answer 11

To establish a prima facie case for negligence, a plaintiff must prove duty, breach, causation, and damages.

Question 12

torts

negligence- Duty template

Answer 12

A duty of care is owed to all foreseeable plaintiffs. Under the majority view (Cardozo), a defendant is only liable to plaintiffs within the zone of foreseeable harm. Under the minority view (Andrews), a defendant owes a duty to everyone harmed.

Question 13

torts

negligence- standard of care template

Answer 13

The standard of care owed by defendant to plaintiff is that of a reasonably prudent person under the circumstances as measured by an objective standard. However, when a special relationship exists between the plaintiff and defendant, the defendant may owe a different duty of care to the plaintiff.

Question 14

torts

negligence- breach template

Answer 14

Defendant will be in breach of his duty to plaintiff if he fails to meet the applicable standard of care.

Question 15

torts

negligence- causation template

Answer 15

To be liable, defendant’s act must be both the actual and proximate cause of plaintiff’s injury.

Question 16

torts

negligence- actual cause template

Answer 16

To prove actual causation, plaintiff must show that but for defendant’s act, plaintiff’s injury would not have occurred. If there is more than one cause-in-fact, the defendant is the actual cause of the injury when the defendant’s conduct was a substantial factor in causing the damages.

Question 17

torts

negligence- proximate cause template

Answer 17

To prove proximate cause, plaintiff must show that her injuries were the foreseeable result of defendant’s conduct. D may argue that P’s act of ___ was an unforeseeable intervening cause. However, a defendant will still be liable for its own acts if the result was nonetheless foreseeable.

Question 18

torts

negligence- damages template

Answer 18

To recover damages, plaintiff must prove actual injury and not just economic loss.

Question 19

torts

Negligence Defenses template

Answer 19

In a contributory negligence jurisdiction, plaintiff’s negligence is a complete bar to recovery. In a pure comparative negligence jurisdiction, plaintiff’s negligence is not a complete bar to recovery, but her damages are reduced by proportion that plaintiff’s fault bears to the total harm. Plaintiff’s recovery may also be reduced if she voluntarily and knowingly assumed the risk of her behavior.

Question 20

torts

SL for products template

Answer 20

To establish a prima facie case for strict products liability, the plaintiff must prove that defendant had an absolute duty as a commercial seller of the product, that defendant produced or sold a defective product, actual and proximate causation, and damages.

Question 21

torts

SL for products- absolute duty template

Answer 21

A defendant who is in the business of selling a commercial product—including manufacturers, distributors, and retail sellers—is under an absolute duty to provide a safe product.

Question 22

torts

SL- defective product (GR) template

Answer 22

A product is defective when, at the time of the sale or distribution, it contains a manufacturing defect, a design defect, or inadequate instructions or warnings (i.e., failure to warn).

Question 23

torts

SL -manufacturing defect template

Answer 23

A manufacturing defect is a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. The test for the existence of such a defect is whether the product conforms to the defendant’s own specifications.

Question 24

torts

SL - design defect template

Answer 24

Depending on the jurisdiction, courts usually apply either the consumer- expectation test or the risk-utility test (or a hybrid of both tests) to determine whether a design defect exists. Under the consumer-expectation test, plaintiff must prove that the product is dangerous beyond the expectation of an ordinary consumer. Under the risk-utility test, the plaintiff must prove that a reasonable alternative design that is economically feasible was available to defendant, and failure to use that design rendered the product not reasonably safe.

Question 25

# torts SL- failure to warn template

Answer 25

A failure to warn defect exists if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which could have been reduced or avoided by providing reasonable instructions or warnings.

Question 26

# torts Strict products liability- causation

Answer 26

Actual cause- the product was defective when it left defendant’s control. Proximate cause - the injury occurred when the product was being used in an intended or reasonably foreseeable way.

Question 27

# torts SL products- damages template

Answer 27

Plaintiff must also suffer personal injury or property damage.

Question 28

# torts SL- defenses template

Answer 28

Plaintiff’s negligence is not a bar to recovery in a contributory negligence jurisdiction [if plaintiff misused the product in a reasonably foreseeable way or negligently failed to discover the defect]. However, plaintiff’s negligence may reduce his recovery in a comparative fault jurisdiction. If plaintiff assumed the risk of any damage caused by the defective product, it will be a complete bar to her recovery.

Question 29

# torts defamation template

Answer 29

A plaintiff may bring an action for defamation if the defendant’s defamatory language is of or concerning the plaintiff, is published to a third party who understands its defamatory nature, and damages the plaintiff’s reputation.

Question 30

# torts defamation- of or concerning p template

Answer 30

A reasonable person must believe that the defamatory communication refers to this particular plaintiff and holds him up to scorn or ridicule in the eyes of a substantial number of respectable members of the community.

Question 31

# torts defamation- publication template

Answer 31

Publication of defamatory matter is its intentional or negligent communication to a third party.

Question 32

# torts defamation- falsity template

Answer 32

If the defamatory statement relates to a matter of public concern, or plaintiff is a public official or figure, plaintiff must also prove that the statement is false.

Question 33

# torts defamation- fault template

Answer 33

public official or public figure= actual malice private individual + public concern= negligence or actual malice private individual= negligence

Question 34

# torts defamation- damage to reputation template

Answer 34

Plaintiff must prove actual damages if he is a public figure/official or a private figure but a matter of public concern is involved. If plaintiff is a private figure and this is not a matter of public concern, then general and presumed damages can be recovered without proving actual malice.

Question 35

# torts Defamation defenses

Answer 35

Truth, consent, absolute privilege, qualified privilege

Question 36

# torts defamation defenses- truth

Answer 36

Truth is an absolute defense.

Question 37

# torts defamation defenses- consent

Answer 37

Consent is an absolute defense as long as defendant did not exceed the scope of consent.

Question 38

# torts defamation defenses- absolute privilege

Answer 38

An absolute privilege can never be lost, and is used for remarks during judicial or legislative proceedings, between spouses, or in required publications.

Question 39

# torts defamation defenses- qualified privilege

Answer 39

A qualified privilege is one affecting an important public interest, in the interest of defendant or a 3rd party, and it can be lost if the statement exceeds the scope of the privilege or the speaker acted with malice.

Question 40

# torts misappropriation

Answer 40

Misappropriation is the unauthorized use of P’s name, likeness, or identity for D’s advantage (commercial or otherwise). Plaintiff must prove lack of consent and injury.

Question 41

# torts intrusion upon seclusion

Answer 41

An intrusion upon seclusion is defendant’s act of intrusion into plaintiff’s private affairs that are objectionable to a reasonable person. Note that no publication is required.

Question 42

# torts false light

Answer 42

To maintain an action for false light, plaintiff must prove that defendant published facts about plaintiff or attributed views/actions to plaintiff that place him in a false light and are highly offensive to a reasonable person.

Question 43

# torts public disclosure of private facts

Answer 43

The public disclosure of private facts is actionable if the publication would be highly offensive to a reasonable person, and is not of legitimate concern to the public.

Question 44

# torts NIED bystanders

Answer 44

The "closely related" requirement only applies to bystanders who are outside of the zone of danger, whom the court allows to recover for vicarious distress. (NIED stranger must be w/in the zone of danger)

Question 45

# torts firefighter's rule

Answer 45

An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent to the job.

Question 46

# torts SL for wild animal

Answer 46

A wild animal is an animal that, as a species or a class, is not by custom devoted to the service of humankind in the place where it is being kept. The possessor of a wild animal is strictly liable for harm done by that animal, in spite of any precautions the possessor has taken to confine the animal or prevent the harm, if the harm arises from a dangerous propensity that is characteristic of such a wild animal or of which the owner has reason to know. Strict liability also applies to an injury caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal.

Question 47

# torts parent's duty (parent's negligence)

Answer 47

A parent is under a duty to exercise reasonable care to prevent a minor child from intentionally or negligently harming a third party, provided the parent has the ability to control the child, and knows or should know of the necessity and opportunity for exercising such control.

Question 48

# torts Attractive Nuisance doctrine

Answer 48

A land possessor may be liable for injuries to children trespassing on the land if: (i) an artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass, (ii) the land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children, (iii) the children, because of their youth, do not discover or cannot appreciate the danger presented by the condition, (iv) the utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children, and (v) the land possessor fails to exercise reasonable care to protect children from the harm.

Question 49

# torts SL for abnormally dangerous activities

Answer 49

A defendant engaged in an abnormally dangerous activity will be held strictly liable for personal injuries and property damage caused by the activity, regardless of precautions taken to prevent the harm. “Abnormally dangerous” means that an activity (i) creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised, and (ii) the activity is not commonly engaged in.

Question 50

# torts assumption of risk

Answer 50

A plaintiff is barred from recovery when he unreasonably and voluntarily encounters a known, specific risk of harm.

Question 51

# torts Essential public service privilege

Answer 51

providers of essential public services, such as construction of utility or sewer lines, are exempt from strict liability.

Question 52

# torts duty

Answer 52

An analysis of duty requires an examination of (i) to whom the duty is owed, and (ii) what the duty entails (otherwise known as the standard of care).

Question 53

# torts contributory/comparative negligence

Answer 53

Contributory/comparative negligence occurs when a plaintiff fails to exercise reasonable care for his own safety and thereby contributes to his own injury. At common law, contributory negligence is a complete bar to recovery. In jurisdictions that have adopted the doctrine of pure comparative negligence, a plaintiff’s contributory negligence is not a complete bar to recovery. Rather, the plaintiff’s damages are reduced by the proportion that his fault bears to the total harm. In a partial comparative negligence jurisdiction, the plaintiff’s recovery is barred if he was more than 50% at fault.

Question 54

# torts battery elements

Answer 54

1. harmful or offensive contact (obj) 2. with the plaintiff's person (or anything connected to it) 3. caused by D's (direct or indirect) 4. intentional act (transferred intent applies)

Question 55

# torts assault elements

Answer 55

Act or threat by D intended to cause apprehension or imminent harm or offensive contact 1. conduct or other circumstances (mere words not enough) 2. p must have reasonable apprehension and awareness of D's act 3. imminent threat of harm 4. intent (or transferred intent)

Question 56

# torts IIED elements

Answer 56

1. intent (not transferred) or recklessness 2. extreme and outrageous conduct by D (beyond human decency, outrageous) 3. third party liability (distresses member of victim's immediate family- with or without resulting bodily injury- or other bystander resulting in bodily injury 4. causation (substantial-factor test) 5. damages- severe emotional distress (beyond reasonable person's endurance or D knows of P's heightened sensitivity)

Question 57

# torts trespass to chattels elements

Answer 57

1) intentional interference with P's right of possession 2) by either dispossessing or using or intermeddling with P's chattel 3) causing damages

Question 58

# torts conversion elements

Answer 58

1. intentional act (must only intend to commit the act that interferes) 2. interference with P's right of possession (exercising dominion or control) 3. so serious (based on duration/extent, intent to assert a right, D's good faith, extent of harm and P's inconvenience) that it deprives P of the use of the chattel 4. Damages (full value of property or replevin)

Question 59

# torts Trespass to land

Answer 59

1. intent to enter land or cause physical invasion (not intent to trespass; transferred intent applies) 2. physical invasion of property

Question 60

# torts res ipsa loquitur elements

Answer 60

1. P's injury under D's exclusive control 2. P's harm wouldn't have occurred if D used ordinary care (no injury would occur in absence of negligence) 3. P not responsible for injury

Question 61

# torts SL elements

Answer 61

1. absolute duty to make P or his property safe 2. breach 3. actual and proximate causation 4. damages

Question 62

# torts neg. products liability elements

Answer 62

1. duty- reasonable care owed to any foreseeable P by commercial manufacturer/distributor/retailer/seller 2. breach- failure to exercise reasonable care in inspection/sale of product (i.e., defect would have been discovered if D wasn't negligent) 3. causation- factual and proximate 4. damages- actual injury/property damages, not pure economic loss 5. defenses- contributory/comparative neg. and A/R

Question 63

# torts Strict products liability elements

Answer 63

1. product was defective (in manufacture, design, or failure to warn) 2. defect existed when it left D's control 3. defect caused P's injury when used in a reasonably foreseeable way

Question 64

# torts defamation elements

Answer 64

1. defamatory language (factual) 2. of or concerning P 3. publication (to 3p who understands its defamatory nature) 4. falsity 5. fault 6. libel/slander 7. damages (P's reputation)

Question 65

# torts misappropriation elements

Answer 65

1. unauthorized use of P's picture or name for D's advantage 2. without consent 3. injury

Question 66

# torts intrusion upon seclusion elements

Answer 66

1. D's act of intrusion into P's private affairs 2. objectionable to a reasonable person (no publication required)

Question 67

# torts false light elements

Answer 67

1. publication of facts about P or attributing views/actions to P 2. that showroom in false light objectionable to a reasonable person under circa. 3. if matter of public interest, P must show malice

Question 68

# torts public disclosure of private facts elements

Answer 68

1. public disclosure of private facts (even if true) about P 2. that would be highly offensive to a real. person and 3. is not of legitimate concern to the public

Question 69

# torts intentional misrepresentation elements

Answer 69

1. false representation of material fact (generally no duty to disclose) 2. scienter (knowledge or reckless disregard of truth) 3. intent to induce P to act or refrain in reliance on misrep. 4. causation (actual reliance) 5 justifiable reliance (not justifiable if statement obviously false or lay opinion) 6. damages (actual econ. loss/consequential damages, no nominal damages)

Question 70

# torts Neg. Misrepresentation elements

Answer 70

1. D (accounting firm or other supplier of commercial info) 2. provides false info to P as a result of D's negligence in preparing the info 3. P justifiably relies on the info and incurs pecuniary damages as a result -P in PK w/ D or D knows P is a member of a limited group for whose benefit info is supplied -info must be relied on in a transaction that D intends to influence or knows recipient intends to 4. Defenses- std neg defenses

Question 71

# torts intentional interference with k elements

Answer 71

1. P must prove D knew of k relationship b/w P and 3P 2. intentionally interfered w/ k, resulting in a breach and 3. breach caused damages to P 4. defenses- justified if motivated by health, safety, or morals; k is terminable at will; and D is business competitor

Question 72

# torts interference w/ prospective econ. advantage elements

Answer 72

1. more egregious conduct required for liability: "independently tortious"; violates federal or state law; improper conduct per balancing analysis 2. business competitor will not be liable for encouraging switching business

Question 73

# torts theft of trade secrets elements

Answer 73

1. P owns valid trade secret (provides a business advantage) 2. not generally known 3. reasonable precautions to protect 4. D took by improper means

Question 74

# torts trade libel elements

Answer 74

1. publication 2. derogatory statement relating to P's title to business property/quality of goods 3. interference or damages to business relationships 4. proof of special damages (no mental suffering)

Question 75

# torts slander of title elements

Answer 75

1. publication of false statement derogatory to P's title to real property 2. malice 3. special damages as a result of diminished value in the eyes of third parties

Question 76

# torts malicious prosecution elements

Answer 76

1. intentional and malicious institution of legal proceeding for improper purpose 2. no PC 3. action dismissed in favor of the person against whom it was brought

Question 77

# torts abuse of process elements

Answer 77

1. use of legal process against P in a wrongful manner to accomplish a purpose other than that for which the process was intended 2. willful act 3. proof of damages required

Question 78

# torts duty to trespassers

Answer 78

Landowners owe no duty to undiscovered trespassers, and they owe discovered or anticipated trespassers a duty to warn or protect them from concealed dangerous artificial conditions only.

Question 79

# torts What additional element must public figures/officials show for IIED?

Answer 79

actual malice

Question 80

# torts NIED duty outside of zone of danger

Answer 80

the duty to avoid infliction of emotional distress also exists without any threat of physical impact in cases in which there is a special relationship between the plaintiff and the defendant, such as when a common carrier mistakenly reports the death of a relative.

Question 81

# torts defamation- fault levels

Answer 81

public figure/official= actual malice private figure and matter of public concern= neg or actual malice private individual= neg

Question 82

# torts SL products liability

Answer 82

To recover in a strict products liability action, a plaintiff must prove that the product is defective (i.e., it contains a manufacturing defect, contains a design defect, or contains inadequate instructions or warnings); the defect existed when the product left the defendant’s control; and the defect caused the plaintiff’s injury when used in a reasonable way.

Question 83

# torts trespass to chattels

Answer 83

A defendant is liable for trespass to chattels if he intentionally interferes with the plaintiff’s right of possession by either dispossessing the plaintiff of the chattel or using or intermeddling with the plaintiff’s chattel. In the case of dispossession, a plaintiff must prove damages by either the actual damages caused by the interference or the loss of use. In the case of use or intermeddling, the plaintiff must show actual damages.

Question 84

# torts Parents' vicarious liability for child's torts

Answer 84

The general rule is that parents are not vicariously liable for their minor child’s torts. Exceptions to this general rule include situations in which the child commits a tort while acting as the parents’ agent, or when a statute establishes the parents’ liability. Parents, however, are liable for their own negligence with respect to their minor child’s conduct. A parent is under a duty to exercise reasonable care to prevent a minor child from intentionally or negligently harming a third party, provided the parent has the ability to control the child, and knows or should know of the necessity and opportunity for exercising such control.

Question 85

# torts Standard of care of professionals

Answer 85

Ordinarily, a professional person is expected to exhibit the same skill, knowledge, and care as another practitioner in the same community. However, while evidence of custom in a community or profession may be offered to establish the proper standard of care, such evidence is not conclusive. The court may determine that the entire community or profession may be negligent.

Question 86

# torts false imprisonment

Answer 86

False imprisonment results when a person acts: i) Intending to confine or restrain another within boundaries fixed by the actor; ii) Those actions directly or indirectly result in such confinement; and iii) The other is conscious of the confinement or is harmed by it.

Question 87

# torts shopkeeper's privilege

Answer 87

A shopkeeper’s reasonable (in both duration and manner) detention of a suspected shoplifter is not an invalid use of authority and hence is not a false imprisonment.

Question 88

# torts Strict products liability defenses

Answer 88

1. comparative fault- reduces recovery 2. product misuse/modification- i) reduces fault in comparative jdx; ii) bars recovery in contributory idx, if misuse was unforeseeable? 3. contributory jdx- bars recovery if P discovered defect 4. A/R- bars recovery 5. substantially changing the product- bars recovery

Question 89

# torts negligence- emotional distress damages

Answer 89

damages for emotional distress are recoverable in a negligence action when the plaintiff has suffered a physical injury even though the emotional distress itself has not been manifested through a physical injury.