Torts Flashcards
1
Q
Warranties implied in every sale of goods?
A
- Implied warranty of merchantability (goods are of average acceptable quality and generally fit for the usual purpose)
- Fitness for particular purpose (seller knows/has reason to know the particular purpose for which goods are required, buyer relies upon seller’s skill & judgment in selecting)
2
Q
Implied warranty of merchantability
A
goods are of average acceptable quality and generally fit for the usual purpose
3
Q
Implied warranty of fitness for a particular purpose
A
seller knows/has reason to know the particular purpose for which goods are required, buyer relies upon seller’s skill and judgment in selecting
4
Q
Incapacity defenses available to intentional torts
A
None
5
Q
Battery elements [intentional tort]
A
(1) Intent (desire to bring about forbidden result OR knows result substantially certain to occur)
(2) Harmful, unpermitted OR offensive contact (offensive - reasonable person)
(3) With the plaintiff’s person (includes anything π touches or carries - car, horse)
Harm need not be instant, if suing under harm theory.
If suing under offensive contact (i.e. doctor who did a good surgery that you didn’t ask for, even if it wasn’t negligent), don’t need to show harm!
No need to show damages
6
Q
Assault elements [intentional tort]
A
(1) Intent
(2) D must place P in “reasonable apprehension” (distinguish fear - puny D)
(3) Apprehension must be of immediate battery (words lack immediacy, need conduct/menacing gesture).
NB: words can negate the immediacy and deny right of recovery
Apparent present ability to make good on a threat is required for “reasonable apprehension”
7
Q
False imprisonment elements [intentional tort]
A
(1) Intent
(2) Act of restraint (threats sufficient only if work on reasonable person; omission can be restraint - leaving disabled person on plane)
(3) P must be confined within bounded area (can be approx, not bounded if “reasonable means of escape that P can reasonably discover”)
Length of confinement immaterial.
Actual damages not needed.
You can detain P’s property (luggage, i.e.) if the effect is to constrain the P to a specified location.
Damages: humiliation/false imprisonment is part of harm, can recover.
Defense: shopkeeper’s privilege (reasonable detention)
8
Q
Intentional Infliction of Emotional Distress
A
(1) Intent to cause IIED (or recklessness as to effect of conduct)
(2) Extreme and outrageous conduct (“exceeds all bounds of decency tolerated in a civilized society”; not mere insults).
(3) P suffers severe emotional distress (does not need physical symptoms, pecuniary damages, etc.)
9
Q
Hallmarks of “outrageous conduct” for IIED purposes
A
- Conduct is continuous or repetitive.
- D is common carrier or innkeeper, duty of patrons - acts intentionally or recklessly
- P is member of fragile class of persons, including children, elderly, pregnant, super sensitive adults if sensitivity is known to D.
10
Q
Individual intentional torts
A
- Battery
- Assault
- False imprisonment
- IIED
11
Q
Property related intentional torts
A
- Trespass to land
- Trespass to chattel
- Conversion
12
Q
Trespass to land (elements) [intentional tort]
A
- Intent (to be on that property, not to cross property line)
- Act of physical invasion (tangible, air and soil within reason,
- Interfere with possession of real estate
Intent to harm is not part of the recipe. Mistake of ownership is no defense to trespass.
13
Q
Personal property
A
Anything one owns that is not real estate. Includes electronics, furniture, clothing, car, money in wallet, data files uploaded to Cloud.
14
Q
Trespass to chattels
A
- Intent
- Physical invasion act
- Interference can either be by physically damaging or taking away from you
Relatively slight interference.
Intent required: physical act that results, not the eventual result (can take something thinking it is yours - good faith is irrelevant)
Remedy: cost of repair.
15
Q
Conversion
A
- Intent
- Physical invasion act
- Interference can either be by physically damaging or taking away from you
Significant interference. The severity isn’t based necessarily on the damage, but the extent of interference (ex. 900 mile road trip left the car unharmed)
Intent required: physical act that results in conversion, not the eventual result (can take something thinking it’s yours - good faith is irrelevant)
FMV of chattel at the time of conversion. NOT replacement cost.
Tortfeasor gets to keep converted chattel.
16
Q
Defenses to intentional torts
A
- Consent (explicit, implied)
- Protective privileges
- Necessity (private, public)
17
Q
Effect of incapacitated P on consent defense to intentional torts
A
Incapacity makes consent impossible. Examples include:
- Being very drunk
- Developmental disability
- Children (though can consent to age-appropriate invasions)
18
Q
Explicit consent (defense to intentional tort)
A
Declaration in words, except invalidated if given as a result of fraud or duress
NB: all consent has scope
19
Q
Implied consent (defense to intentional tort) - two types
A
- Apparent consent - custom/usage. Assumed consent if certain invasions are germane to the activity.
- Body language consent - D’s reasonable interpretation of P’s objective conduct and surrounding circumstances.
NB: all consent has scope
20
Q
Identify the protective privileges as defense to intentional torts (3)
A
- Self-defense
- Defense of other
- Defense of property
In these, the P is engaging in threatening behavior; D commits tortious response to avert the threat, must emanate from P actions.
21
Q
Elements required to establish protective privilege defense to intentional torts
A
- Timing (threat in progress or imminent, heat of moment)
- Reasonable belief that threat is genuine (reasonable mistake is OK)
- Only allowed to use as much force as is necessary or proportional under the circumstances (deadly force never OK to protect property, but deadly force OK to match deadly force)
22
Q
Public necessity defense to intentional property torts
A
ONLY applies to property torts! Total defense.
Invades P’s property as emergency, only to protect community as a whole or a significant group of people. Members of the community (more than one). No liability for damages.
Ex. natural disaster, fire, altruistic helper.
23
Q
Private necessity defense to intentional property torts
A
ONLY applies to property torts!
Invades P’s property to prevent merely own interest (protect self, family, or one other member of the community). Does not absolve of tort liability i.e. for trespass.
Not absolute defense. Creates 3 legal consequences:
- D eligible for compensatory/actual damages (real harm done)
- D not eligible for punitive damages
- P cannot throw D off the land, in effect forcing him back into emergency. Must tolerate emergency while in effect.
24
Q
Elements of defamation (tort)
A
- D must make defamatory statement about P (“tends to adversely affect reputation”; insult insufficient - factual in nature; does not need to name name if identifying features; opinion statement won’t count unless facts to back it up)
- Must be a “publication” (reveal statement to someone other than P, even if not deliberate but negligent - it must be reasonably foreseeable that third party could overhear)
- Damages (often presumed, except slander that is not per se)
Best defense is the truth.
25
Libel cases (and damages allowed) [defamation]
Libel - defamatory statement permanently embodied in media of expression. Typically written down, but film/audio also included.
Damages to reputation are assumed!
26
Slander cases (and damages allowed) [defamation]
Spoken statement. The ability to presume damages depends on whether slander is per se or not.
Slander per se - presume damages. Includes:
1. Statement about P business/profession
2. Crime of moral turpitude (ex. theft)
3. Statement imputing unchastity to woman
4. P suffers loathsome disease (leprosy, general)
If NOT slander per se, must prove harm/damages. To prove damages, need pecuniary/economic harm. Social consequences don't count.
27
Affirmative defenses to defamation
1. Consent (implied or explicit) - defeats claim
2. Truth (D has BOP b/c it is situated as affirmative defense)
3. Privileges (absolute or qualified)
28
Absolute privilege (for purposes of defamation defense)
Based on status of D.
Spouses (convos between them cannot bring defamation)
Officers of three branches of government (including anything said in open court)
29
Qualified privilege (for purposes of defamation defense)
Based on the circumstances of the speech rather than status of speaker. Arise out of public interest in encouraging candor.
When recipient has an interest in the information ("common interest privilege" - i.e. worked together), and it is reasonable for the speaker to make the publication.
Requirements:
1. Must be made in good faith, with reasonable basis.
2. Must be confined to matters relevant to issue at hand
Ex. Letter of recommendation from past LL, bank disclosing nefarious husband spending to wife over the phone.
30
Elements to prove "public concern" defamation (First Amendment cases)
1. Falsity (P has burden)
2. Fault on part of D (statement not made in good faith)
a. If P public figure - must show statement made with knowledge that it was false OR made recklessly (didn't try to learn truth)
b. If P private figure - negligence suffices
31
Privacy torts (4)
C L I P
1. Commercial appropriation
2. Intrusion (only one that doesn't require publication)
3. False Light
4. Public Disclosure of Private facts
Best defenses: consent.
Emotional damages can be recovered in privacy torts.
32
Privacy tort - appropriation [elements and defenses]
D uses P name or picture for commercial purposes. Not limited to celebrities.
Exception for newsworthiness (famous athlete on magazine).
Defense: consent
33
Privacy tort - Intrusion [elements and defenses]
Invasion of P's seclusion in a way that would be highly offensive to the average person (wiretapping, covert video, peeping tom). Needs to be in place with reasonable expectation of privacy.
Ex. Cocktail party, street - inapplicable.
Ex. Locker room, car - reasonable expectation.
Defense: consent
34
Privacy tort - false light [elements and defenses]
Widespread dissemination of material falsehood about P that would be highly offensive to the average person. Tort of "false gossip."
Can sometimes overlap with defamation. Difference is that in false light tort, can collect dignitary (rather than pecuniary) damages.
Ex. "he is a devout catholic" - false light, not defamation
Defenses: consent, defamation privileges (absolute, qualified, governmental)
35
Privacy tort - disclosure [elements and defenses]
Widespread dissemination of confidential information about P that would be highly offensive to the average person ("tort of true gossip")
Exception: newsworthiness.
Facts must be truly private and confidential; if known to one social sphere, will not count.
Ex. secretary mails medical history to firm.
Defenses: consent, defamation privileges (absolute, qualified, governmental)
36
Elements of tort negligence
1. Duty
2. Breach of duty
3. Causation (factual & legal/proximate)
4. Damages
37
Ordinary duty of care owed in tort
Duty owed to foreseeable victims.
Majority: zone of danger creates foreseeability (Palsgraf) (ex. those outside a property within zone of danger, ball park)
Minority: everyone is foreseeable (Andrews)
"A general duty of care to act as an ordinary, prudent person would act under like circumstances is owed to all foreseeable plaintiffs.
If a defendant's conduct causes an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends to the plaintiff"
- no physical attributes (generally)
- no personal shortcomings
- no intellectual disability
- no mental illness
38
Situations in which the law personalizes the reasonable person standard (duty of care - tort)
[NOT asking about special duty standards]
If D has superior skill or knowledge of subject area, attribute that to them (skill = body of information, knowledge = "dumb" person possess particular fact)
When relevant, incorporate physical attributes (wheelchair, 7' tall, blind, deaf)
A landowner has a duty to exercise reasonable care with respect to activities on the land & to avoid unreasonable risk of harm to others outside the property, e.g.
39
Situations in which special duties of care kick in, replacing the ordinary duty of care (6)
1. Children
2. Professionals
3. Premises liability
4. Statutory standards of care
5. Duties to act affirmatively
6. Negligent infliction of emotional distress
40
Children's duty of care for negligence tort liability (young children, teens, and exception to rule)
1. Under age of 4 do not owe any standard of care.
2. Children 4 through teens - hypothetical child of similar age, experience, intelligence, and education under the circumstances (subjective - amateur bike rider, i.e.)
Exception: when child is engaged in adult activity, standard returns to adult standard of care. Ex. operating vehicle with motor
41
Special duty of care held by licensed professionals
Ex. healthcare, accountants, lawyers, architects, engineers
Professional obligation to exercise the skill and knowledge normally possessed by members of the same profession in good standing (real-world comparison to colleagues).
Majority: applies national standard
Minority/old rule: locality rule
42
What is premises liability, generally?
Negligence case in which P enters real estate. When P goes onto property, encounters hazardous condition. P gets hurt. Q is whether D (possessor of property) is owed prior duty).
43
In premises liability case, what duty is owed to unknown/undiscovered trespasser?
NO duty of care.
44
In premises liability case, what duty is owed to known or anticipated trespasser?
Known/anticipated means possessor either knows or should know they would be there (pattern of trespassing, i.e.)
Duty only in known, man-made death traps:
1. Condition must be artificial
2. Condition must be highly dangerous
3. Condition must be concealed from entrant AND
4. D must have prior knowledge of condition
45
In premises liability case, what duty is owed to a licensee on property?
Licensee means invited onto premises but do not confer economic benefit to possessor (dinner guest, solicitors by implied consent).
Responsible for all hidden known death traps.
1. Must be concealed/hidden from licensee AND
2. Possessor must have prior knowledge of condition
No affirmative duty to inspect or repair, simply to warn.
Note: Thus, if a licensee should reasonably discover it (a split floorboard, i.e.), there is no duty to warn.
Note: Limited to scope of invitation, but not in time (shows up an hour early, i.e.)
46
In premises liability case, what duty is owed to an invitee on property?
Invitee means enter with permission in a way that confers economic benefit on possessor (museum, commerce, airport, place of worship). Afforded the highest standard of care!
Responsible when:
1. Condition is hidden, AND
2. D actually knew about condition or COULD have discovered through reasonable inspection (CBA/similar circumstances)
Creates an affirmative duty to inspect when receiving money.
Ex. slip and fall in grocery store, wet floor unchecked 3 hours - liable
Note: invitee status can drop to anticipated trespasser if they exceed the scope of where they are allowed to be (known, dangerous, artificial)
47
Ability of rescue workers to recover damages in premises liability tort
They cannot! Injury is inherent risk of their job.
48
In premises liability case, what duty is owed to child trespassers?
Duty of reasonable care to prevent child trespassers from getting hurt (ordinary care).
Under attractive nuisance doctrine, must use reasonable prudence and take extra precautions.
49
How can a possessor of land fix a condition they are liable for under premises liability?
1. Fix condition OR
| 2. Give warning (litigate & send to jury adequacy of that warning)
50
What is per se negligence?
A new standard of care that P's want to hold D's to. It changes the jury instruction away from ordinary duty of care. Eliminates D's ability to offer excuse, explain why they were reasonable.
These are established by statutory standard of care. This means that duty and breach were established.
51
What is the test for determining whether a statutory standard of care appropriately applies in negligence tort action, such that negligence per se can be applied?
1. Clearly stated specific duty
2. Class of person (P must demonstrate member of class of persons that statute is trying to protect)
3. Class of risk (accident that occurred is within the class of risks that statute was trying to prevent).
Motor vehicle code almost always satisfies.
The result of finding this is negligence per se (don't need to prove duty or breach)
52
What exceptions exist to the statutory standard of care analysis (where the test is met but we still may not apply)?
1. Where statutory compliance would be more dangerous than violation (D swerves over double yellow to avoid hitting baby girl in street)
2. If compliance was impossible under the circumstances (ex. D's true medical emergency); beyond the defendant's control (ex. fleeing for life)
53
When does a duty to act affirmatively attach in negligence torts?
Rule: no duty to rescue stranger in peril UNLESS
1. Parties have preexisting relationship - duty to act reasonably under circumstances (formal relationship like hotel/guest)
2. When D caused peril - duty to act reasonably (can be non-negligent cause)
3. When D chooses to engage in behavior to assist other party (gratuitous rescuers) - duty to act reasonably (may be liable if negligent; minority: Good Samaritan Laws, which absolve liability)
Never obligated to risk own life.
54
Establishing negligent infliction of emotional distress
D behaved negligently and P did not suffer any physical harm (b/c if P suffered physical harm, normal negligence and can collect emotional harm here).
First, establish negligence of D. Then establish P entitlement to recover.
55
How can a plaintiff show negligent infliction of emotional distress in a near-miss case?
(near miss case - D behaving negligently almost physically injures, leaves P agitated/afraid)
Must show:
1. D negligence put you in zone of physical danger
2. Must be subsequent physical manifestation of distress (majority; split on whether depression counts)
56
How can a plaintiff show negligent infliction of emotional distress in a bystander case?
(bystander case - negligent D injures someone badly, almost or does kill them, bystander experiences grief)
Must show:
1. Direct physical victim was close family member (roommate/cousin does not count, finance split)
2. Was there AS it happened (close in space and time, can't run out and see body on ground)
57
How can a plaintiff show negligent infliction of emotional distress based on the parties' relationship?
When P and D are in preexisting business relationship and it is highly foreseeable that negligent D conduct will cause significant distress due to the nature of performance
Ex. false positive doctor, morgue, NOT your dry cleaner messing up
58
Doctrine of res ipsa loquitor
Invoked in scenario without much information.
1. The event causing plaintiff’s injury is not the type of thing that happens unless someone was negligent;
2. The negligence is attributable to the defendant (usually this is proved by showing that the defendant was in exclusive control of the instrumentality that caused plaintiff’s injury); and
3. The plaintiff was not the reason for the injury’s occurrence.
Creates prima facie case for negligence (not for an intentional tort).
Juries always free to reject res ipsa inference.
Majority: Res ipsa usually can't be used in cases with multiple defendants, especially with more than one potential defendant when at least one defendant definitely didn't do it
Minority: if all of them could have done it, can invoke res ipsa (Ybarra) (ex. appendectomy gone wrong, blame everyone in the operating room)
59
What is but-for, or factual, causation?
The breach was a necessary precondition of the injury.
In an alternative universe, if D is perfectly careful, does the accident still occur?
60
How does one determine whether factual causation is present with merged/joint causes? (I.e. each D releases destructive force, which come together and harm P.)
Majority: substantial factor test - was the individual force a substantial factor?
61
How does one determine whether factual causation is present with unascertainable or alternative causes? (i.e. two hunters shoot multi-pellet round in same direction, only one pellet hits V)
Burden of proof shifts to Ds to show that their negligence was not the actual cause. Otherwise, we hold them jointly and severally liable.
D must essentially talk their way out of the case, b/c we don't know which negligent act caused the harm.
62
What is the test to determine proximate cause?
Test: foreseeability.
1. Time (generally - but see releasing carcinogens and 20 years later people get cancer)
2. Distance
3. Weirdness (out of the ordinary or expected/conventional?)
63
D runs traffic light. Hits P, concussion. As a result of negligent medical care, P's leg amputated. Was intervening negligent medical treatment foreseeable such that proximate cause may be attributed to D?
Yes, because intervening negligent medical treatment is proximately caused by D.
Note that the negligent doctor is also liable for medical malpractice.
64
D runs light. Hits P. Good Samaritan J wants to help, injures him. Is D liable for P's broken shoulder, caused by an intervening negligent rescue?
Yes, b/c D's are liable for intervening negligent rescue. Sufficiently foreseeable that we say it proximately caused.
65
D runs red light, breaks P leg. Next day, P loses balance on crutches, breaks arm. Is D liable for the subsequent accident that caused P's broken arm?
Yes, b/c Ds are liable for subsequent disease or accident. Sufficiently foreseeable that we say it proximately caused.
66
In establishing damages, what role does P's special sensitivity play in harm liability?
None! Eggshell plaintiff rule. We take the P as we find him.
Ex. carelessly cut someone on arm, wouldn't really be bad except they have hemophilia and develop major complications. D on the hook for the bills.
67
What defense is available to tort negligence?
Comparative negligence. You can prove that P failed to exercise proper (reasonable) care for own safety, or lacked obedience to self-protective statutes (jay-walking, i.e.)
Jury weighs breach against both, signs percentage number, no governing rules.x
68
What is the pure comparative test for attributing damages based on comparative negligence? (majority)
Goes strictly by percentages. Even if P is assigned most of the fault, say 90 percent, still can collect 10 percent damages. Plaintiff can recover even if they are more than 50% liable.
Assume pure comparative on the test, unless otherwise stated.
69
What is the modified/partial comparative test for attributing damages based on comparative negligence? (minority)
If P falls over 50 percent blame, no damages whatsoever! The plaintiff can only recover if their fault is 49% or less.
70
What is a rebuttal P can make to a defense of contributory negligence?
Last chance doctrine. Permits P to recover despite contributory negligence. The person with the last clear chance has responsibility.
71
When does strict liability attach to domesticated animals (house pets, agricultural animals)?
Generally there is no SL for these creatures. BUT, if you keep the animal and have knowledge of its dangerous propensities, will be held strictly liable. It must be a peculiar danger associated with creature not species.
Ex. bulls charge, no SL.
Ex. every dog gets one free bite, two onward creates SL.
72
Does strict liability attach when owner is aware of domestic animal's specific dangerous propensity, but trespasser enters property?
Nope.
73
When does strict liability attach to wild animals?
Whenever. Safety precautions are irrelevant.
Note: bulls are considered domestic animals.
TO recover, must suffer the type of injury associated with the animal's propensity. Retreating from a wild animal counts under this, so you can recover under strict liability.
74
What constitutes an abnormally dangerous activity for purposes of conferring strict liability?
Two-part test:
1. Activity created a foreseeable risk of serious harm even when reasonable care was exercised (we lack tech to make this safe); AND
2. Can't be common in location where conducted (reservoir in mine country; crop dusting in NYC)
75
What are three activities that come up a lot and are abnormally dangerous such that strict liability attaches?
1. Blasting, demolition, explosion.
2. Handling/transporting dangerous/toxic biological material.
3. High-dose radiation/nuclear activity
76
What is the test for determining whether P can make out claim of defective product, triggering strict liability?
Four-part test:
1. Must show that D is merchant
2. Must show that product is defective, either through manufacturing defect, design defect, or information defect?
3. Must show that defect existed when it left manufacturer hands
4. P must be making foreseeable use of product at time of injury?
Merchant
Defect
Traceable to manufacturer
Foreseeable use
Note: even if strictly liable, can only collect for injuries caused by that defect. It has to be the dangerous propensity that causes the accident.
77
Who is considered a merchant, for purposes of establishing strict liability for defective product?
Merchant is someone who routinely deals in goods of this type (not casual).
If their product was not intended for sale, and someone just stole the item, then they don't meet merchant test.
No - service providers (chair at doctor's office)
No - The Army
Yes - commercial lessors (rental car company)
Yes - parties up distribution chain
78
Is privity of contract required to sue under strict liability for design defect?
No! You can sue Bed Bath and Beyond for a defective toaster, but also Cuisinart. This is good if one is insolvent/bankrupt.
79
What is the test for establishing a manufacturing defect (for purposes of strict liability)?
It's that one in a million that slips through. Must show that it differs from all others that came out of production line in a way that makes it more dangerous than consumers would expect.
Must be (1) different, and (2) dangerous
Safety precautions irrelevant.
80
What is the test for establishing a design defect (for purposes of strict liability)?
There is only a design defect when it fails the "risk utility test" - the danger of product outweighs value so reasonable person would not put it on the market?
P has burden of showing there was a viable alternative design:
1. Safer
2. No more expensive
3. Not impractical
OR if there is government regulation specifying the design, failure to conform to that design is conclusive proof of a defect
Ex. component parts
Show that those designing product knew or should have known of enough facts to put a reasonable manufacturer on notice about the dangers of marketing the product as designed (so the fact that a certain accident is first of kind helps defendant)
81
What is the test for establishing an information defect (for purposes of strict liability)?
If it cannot be redesigned in a cost-effective way but has (a) residual risks and (b) lacks warning about foreseeable/reasonable risks.
Ex. knife without warning
82
How can P show that a manufacturing/design/informational defect existed when it left the manufacturer's hands (for purposes of strict liability)?
It is presumed satisfied if it moved in ordinary channels of distribution
83
Under the test for strict liability due to defective products, how can P show that it was making foreseeable use of product at time of injury?
Foreseeable use does not need to be intended use - many different uses are foreseeable.
Ex. use a chair to stand on it and reach a higher shelf
84
What defense is available for strict liability claims?
Comparative negligence.
Note: if the state has a traditional contributory negligence statute, cannot use contributory negligence as a defense.
85
What is tort negligence?
Interference with ability to use & enjoy real estate to unreasonable degree. Key inquiry is the degree of interference (must be "seriously annoying")
Ex. inconsistent land use
86
What types of relationships can create vicarious liability?
Employer-employee
Independent contractor (sometimes, if because of public policy considerations, it is nondelegable i.e. taxi cab owner and people who service the cabs)
Auto owner and driver
Parents and kids
87
When does vicarious liability attach to an employer for employee conduct?
Rule: within scope of employment (exception intentional torts, with exceptions)
88
When can an employer be held liable for the intentional tort of an employee?
General rule is that they cannot.
Exceptions:
1. If force is part of job, then misuse of force creates VL
2. If employee engages with motive of serving boss' purpose, VL
89
When can someone be held vicariously liable for the actions of an independent contractor?
Usually, there is no VL.
Exception if the IC hurts a customer on the property.
A principal will be vicariously liable for the tortious acts of her independent contractor if the independent contractor is engaged in inherently dangerous activities. In general, a principal will not be vicariously liable for tortious acts of an independent contractor. Two broad exceptions exist, however:
(i) the independent contractor is engaged in inherently dangerous activities, e.g., excavating next to a public sidewalk, blasting; or
(ii) the duty, because of public policy considerations, is simply nondelegable, e.g., the duty of a business to keep its premises safe for customers.
90
When is an automobile owner vicariously liable for the tortious conduct of a driver?
Usually, owner is not. Exception if driving car in order to do an errand for an owner (creates principal/agent relationship)
91
When is a parent vicariously liable for the tortious conduct of their child?
Never!
Keep in mind that they may be actually negligible for tortious conduct attributed to themselves (i.e. dad leaves handgun out)
92
When can a co-defendant be indemnified (100% reimbursed) for paid-out liability?
Two circumstances.
1. If you are vicariously liable and tortfeasor is actively involved in case, if vicariously liable party covers the cost, can be indemnified from active tortfeasor.
2. In products liability, when party is retailer, can be indemnified from manufacturer.
93
What is the "loss of consortium" cause of action? (Elements)
Where victim of tort is married, no matter what tort, uninjured spouse has separate, derivative cause of action for tort. Must prove all three:
1. Loss of services (help around the house)
2. Loss of society (companionship), AND
3. Loss of sex (can't already be sleeping in separate bedrooms)
Defenses apply as if regular tort.
94
If a tortfeasor dies, does their COA disappear?
No - most states have statutes that allow for the claim to survive
95
What must P show in basing a tort claim on the attractive nuisance doctrine?
1. Owner was or should have been aware of the dangerous condition
2. knew or should have known that children may be present;
3. Likely to cause injury because of child's inability to appreciate the risk,
and
4. Expense of fixing danger is slight compared w/ magnitude of risk.
Does NOT need to show that the attractive nuisance actually induced child onto property.
Also, if you can show that a child would probably be able to appreciate the risk, no liability.
96
Generally, does a landowner need to repair a dangerous, known, hidden condition before licensee visits?
No, a warning will suffice (generally).
97
What duty does a landowner with active operations have to a licensee on its property?
Duty to protect the licensee through exercising reasonable precautions. Warning alone won't suffice if no precautions were taken.
98
What general duty does a landowner owe to an invitee that it does not owe to a licensee?
Duty to make reasonable inspections for dangerous conditions on the premises, and to make them safe
99
What duty does an owner of open land owe to the public, when the owner does not charge a fee and allows recreational use?
Not liable for injuries suffered by a recreational user unless "willful or malicious" failure to guard against dangerous condition or activity
100
When making out a claim of special statutory duty, must P show that failure to adhere to statute caused the injury in fact?
No, they need only show that
1. class of intended protection
2. class of intended injury
101
Must a bystander be within the zone of danger in order to make out a negligent infliction of emotional distress?
No if based on bystander - must only be present at event and observe or perceive the event (and also be close relative of victim) (but if they are not, they can be said to be not sufficiently within the zone of danger)
YES if based on near miss - when the threat of physical danger is the cause of NIED
102
What does Good Samaritan law excuse?
Ordinary negligence, not gross negligence, caused by gratuitous rescuer.
103
What is the transferred intent doctrine?
If D intends to harm P1 but actually harms P2, we will attribute the intent from P1 to the tort against P2 (assault & battery).
Further, if D intends to assault P (place in reasonable apprehension), but accidentally hits P, then we will attribute the intent to commit assault to the intent to commit battery.
104
Is there a tort of attempted assault?
No, there is not.
105
What is shopkeeper's privilege?
Shopkeeper avoids liability on false imprisonment charges for detaining customers only if:
1. They reasonably suspected of theft.
1. Conduct detention in reasonable manner, using only non deadly force; and
2. Release within reasonable period of time and only for purpose of conducting investigation
No requirement to call the cops though.
106
Is proof of damage required for tort of trespass?
No
107
Does an exploded mine that causes damage to neighbor's property constitute trespass?
No, b/c trespass requires physical object
108
What is the impact of P's privilege on the ability of D to assert a "defense of property" claim?
D cannot use force on P with a privilege to enter the property.
109
In order to claim "defense of property," when must property owners request that trespasser desist?
A request to desist must usually precede use of force. However, this is waived if:
1. Circumstances make it clear that request would be futile or dangerous.
110
Is reasonable mistake allowed in property owner's right to use force in defense of property?
Yes, if mistake is regarding:
1. whether intrusion occurred
2. whether request to desist is required
111
If res ipsa loquitur has been proven during trial, what effect does this have on cross-motions for directed verdict?
Both motions will be denied.
D motion will be denied when prima facie case of res ipsa has been made.
P motion will be denied because res ipsa is a question for the jury, an inference they are free to disregard.
112
What causation test is used for concurring causes?
But-for test.
The “but for” test for actual cause applies to concurrent causes. An act or omission to act is the cause in fact of an injury when the injury would not have occurred but for the act. This test applies in concurrent cause cases, where several acts combine to cause the injury, but none of the acts standing alone would have been sufficient. But for any of the acts, the injury would not have occurred.
113
What is a dependent intervening force?
Dependent intervening forces are normal responses or reactions to the situation created by the defendant’s negligent act. Dependent intervening forces are almost always foreseeable.
Ex. subsequent disease, negligence of rescuers, efforts to protect person or property, aggravation of condition caused by medical malpractice, original injury as substantial factor in causing second injury -- original tortfeasor is usually liable
114
What is an independent intervening force?
These are acts of God or intentional torts/criminal acts of third persons. They operate on situation created by D's negligence, but are independent actions rather than natural responses.
D's liability for these actions depends on the foreseeability of the action.
115
What is a superseding force, for the purposes of proximate cause?
As a general rule, intervening forces that produce unforeseeable results (i.e., results that were not within the increased risk created by defendant’s negligence) will be deemed to be unforeseeable and superseding. A superseding force is one that serves to break the causal connection between defendant’s initial negligent act and the ultimate injury, and itself becomes a direct, immediate cause of the injury. Thus, the defendant will be relieved of liability for the consequences of his antecedent conduct.
116
In a tort action, what types of damages may a plaintiff recover?
A plaintiff is entitled to all damages that he can prove, even if the extent of the damages was unforeseeable. Permissible damages includes economic damages, such as medical expenses and lost earnings, and
noneconomic damages, such as pain and suffering. The plaintiff is also entitled to damages for lost future earning capacity, discounted to present value to avoid an excess award; i.e., the plaintiff receives an amount that, if securely invested, would produce the income that the jury wishes him to have.
A plaintiff CANNOT recover presumed damages
117
What is required for the "assumption of risk" defense to an inherently dangerous activity?
1. Knowledge of risk
2. Voluntary assumption of risk (either express or implied based on custom)
Whether or not P's choice is reasonable is irrelevant.
Usually, exculpatory waiver of liability in consensual agreement will be sufficient, albeit closely scrutinized. Exception if it's an adhesion contract (where the agreeing party essentially had no say over the matter)
118
May a product comport with governmental standards and still be considered a design defect?
Yes. A product may comply with the standards and still be found defective if there is a reasonable alternative design that is economically feasible.
119
In strict liability cases, what role does the retailer's opportunity to inspect product in question have?
No role. The retailer does not need to have the opportunity to inspect the goods in order to be found strictly liable for defects.
In regular negligence claim, must prove retailer negligence.
120
What damages are available and unavailable in strict liability cases?
Products liability cases based on negligence and strict liability both prohibit recovery of solely economic losses.
The types of damages recoverable under both theories are the same: personal injury and property damages.
Economic loss cannot be the sole damage claim. In order to recover economic damages, should bring breach of warranty claim in contract.
121
How is "actual malice" defined, for purposes of a public figure proving defamation?
Knowledge the statement was false, or reckless disregard re: truth/falseness.
Does not go to the statement's defamatory nature.
122
What must be shown for qualified protection to apply to defamatory statement?
For a qualified privilege to apply, the statement must be reasonably relevant to the interest being protected.
123
Who may bring inherently dangerous activity - strict liability action against D?
A defendant engaging in an abnormally dangerous activity may be liable only to foreseeable plaintiffs injured as a result of the dangerous propensity of the activity.
the harm must result from the kind of danger to be anticipated from the abnormally dangerous activity; i.e., it must flow from the “normally dangerous propensity” of the activity involved
ALSO a foreseeable plaintiff may recover even if she was not directly injured by the activity as long as the injury was from the dangerous propensity (e.g., injuries caused by fleeing the danger from the activity).A principal will be vicariously liable for the tortious acts of her independent contractor if the independent contractor is engaged in inherently dangerous activities. In general, a principal will not be vicariously liable for tortious acts of an independent contractor. Two broad exceptions exist, however: (i) the independent contractor is engaged in inherently dangerous activities, e.g., excavating next to a public sidewalk, blasting; or (ii) the duty, because of public policy considerations, is simply nondelegable, e.g., the duty of a business to keep its premises safe for customers.
124
What is the right of contribution among tortfeasors?
a device whereby responsibility is apportioned among those who are at fault.
However, it does not apply against a tortfeasor who is immune from liability. If the contributing tortfeasor has a defense that would bar liability, such as intra-family tort immunity, she is not liable for contribution.
In most states, contribution is based on relative fault of the various tortfeasors rather than on equal shares of the overall liability.
Contribution does not provide for apportionment of damages in the absence of joint and several liability; rather, it can only operate in RESPONSE to joint and several liability, because it allows any tortfeasor required to pay more than his share of damages under joint and several liability rules to have a claim against the other jointly liable parties for the excess. Contribution does not apply to intentional torts in most states.
125
When can children be held liable for intentional torts?
When they are capable of forming the requisite intent
Ex. assault - intent required is to bring about offensive or harmful contact, don't need to know of its wrongfulness.
Intent means knows with substantial certainty event is likely to occur
126
What is the standard of review for an appellate court in reviewing a jury's determination of negligence?
No reasonable jury could have made such a determination.
127
What is the standard of care for negligence during emergency?
Reasonable person during an emergency.
128
Generally, what obligation does landowner have to warn trespassers of dangerous natural conditions?
None!
129
What is joint and several liability?
Where two or more tortious acts combine to proximately cause an indivisible injury to plaintiff, each is liable to the plaintiff for the entire damage incurred. The defendant who pays more than his share of damage can recover the excess from the other jointly liable parties through contribution.
Traditional contribution rules require all defendants to pay equal shares regardless of their respective degrees of fault, while states with a comparative contribution system impose contribution in proportion to the relative faults of the various judgments.
Ex. $50k in damage attributable to both D1 and D2, can make D1 responsible for $50k (who can then be indemnified by D2)
130
What are two ways to apply rule of contribution?
Pro rata, proportional fault approach.
Enables the defendant who has paid more than his share of damages to plaintiff under joint and several liability to seek recovery against any other joint tortfeasor for the excess paid.
131
When will contributory negligence fail to impact a finding of negligence?
If a state has NOT adopted comparative negligence rules, when the original negligent conduct was reckless or wanton, it won't matter if the plaintiff was also negligent.
Most states that adopt comparative negligence rules will not distinguish between reckless/wanton conduct.
132
When does the Speech and Debate clause provide immunity from defamation?
For congressmen in one of the houses of Congress
133
How are damages calculated when property is harmed, in negligence action?
Based on cost of repair, or if it's basically ruined then FMV at time of injury
134
When are punitive damages available in negligence action, if ever?
Reckless and malicious, or willful and wanton conduct by D.
135
How does a judge enter damages against several liable defendants in a jurisdiction following traditional joint & several liability rules?
Enter the judgment in full amount against BOTH defendants. Ex. both responsible, total damages, assess at $100k AGAINST EACH one.
136
When can employer seek indemnification for conduct of employee?
When the employer is on the hook for the negligent conduct of the employee; i.e. if the liability is vicarious in nature
137
What level of force is permitted to protect one's property?
Reasonable level of force. Never deadly or SBH
Guard dog counts as deadly, counts as intentionally protecting property.
Includes keeping fences electrified after people are off the property in order to prevent theft.
138
What is the privilege of necessity?
Person may interfere with the property of another where it is reasonably and apparently necessary to avoid threatened injury from a natural/other force, and when threatened injury is substantially more serious than the invasion that seeks to avert it.
Still liable for damages of trespassing, though!
139
What duty of care is expected of organizations who gather the public for profit?
General duty to of reasonable care to aid or assist patrons who are in grave danger, i.e. choking.
Ex. restauranteurs.
140
What is the family car doctrine?
Holds car owner liable for tortious conduct of immediate family or household members who are using the car with the owner's permission
141
What is the tort of "interference with business relations"?
It's basically when someone uses improper means to interfere with contract or prospective economic advantage (e.g. competitor tells lie to employee about current employer in order to poach the employee)
To make out a prima facie case, must show:
1. Existence of valid contract relationship between P and third party/valid business expectancy of P
2. D's knowledge of the relationship or expectation
3. Intentional interference by D, inducing a breach of the relationship/expectancy by the third party, and
4. Damages to P.
Ex. probable future business relationships for which P has reasonable expectation of financial benefit
Interferor's conduct may be found reasonable if a privilege applied, i.e. proper attempt to build business with the interferor. But you need both proper ends and means of persuasion. This means you can poach someone by proper ends and means.
D can be independent contractor, terminable at will.
142
What duty do medical professionals owe their patients in warning about potential risks of medications?
Need to provide enough information that a patient can make "informed consent" - if an undisclosed risk was serious enough that a reasonable patient would have withheld consent, the D will have breached duty.
143
When may a bailee be liable to the owner of a chattel for a property-related intentional tort (i.e. conversion, trespass to chattel)?
If he used the chattel in such a way that materially breached the bailee agreement.
Ex. friend lends you a car, you lend it to a friend to use on a 900 mile road trip
144
What is the duty of care owed by bailee in bailment relationship, when both bailor and bailee benefit?
Reasonable standard of care.
145
What is a dramshop act?
Imposes vicarious liability on bars, when intoxicated vendee commits tort.
146
What is the tort of intentional misrepresentation?
Prima facie case requires:
1. Misrepresentation by defendant
2. Scienter (knowingly false or with reckless disregard to its falsity)
3. Intent to induce plaintiff's reliance on the misrepresentation
4. Causation (actual reliance)
5. Damages
147
What is the tort of negligent misrepresentation?
Prima facie case requires:
1. Misrepresentation made by defendant in business or professional capacity (can't just be in a personal capacity)
2. Breach of duty toward that particular plaintiff
3. Causation
4. Justifiable reliance
5. Damages
148
What does strict liability attach in a private nuisance action?
Nuisance is an invasion of private property rights by conduct that is either intentional, negligent, or strict liability.
Strict liability attaches to wild animals, abnormally dangerous activity, or abnormally dangerous domestic animals
Still must result in substantial interference with owner's property (and highly specialized/sensitive plaintiff gets no benefit)
149
What is private nuisance requirement?
Substantial and unreasonable interference with quiet enjoyment of property
Specialized/sensitive plaintiff gets no benefit.
While not conclusive, conduct consistent with what a zoning ordinance permits is relevant evidence that a given use is not nuisance.
150
What is a gratuitous bailment?
When the bailor receives no benefit
I.e. lending your neighbor your truck out of the goodness of your heart
151
What duty does bailor have to inform of risk/defect, when bailment is gratuitous bailment?
Duty to inform of known defects.
No duty w/r/t unknown defects.
152
What duty of care is a bailee held to, when the action solely benefits bailor?
Slight duty of care.
Ex. "Can I lend you my truck so you can pick me up pizza?"
153
When a custom, standard, or usage in an industry is relevant, how if at all does it affect the analysis of duty of care/breach of duty?
- It does not replace general negligence standard
- Compliance raises presumption against negligence.
- Failure to follow does not create presumption of negligence.
154
Is breach of duty a question for the jury or the judge?
For the jury, trier of fact!
155
When will D be entitled to directed verdict
Only when P failed to make prima facie case
156
ER liable for negligent hiring?
Yes. Doesn't require that D be acting within the scope of employment. Distinguishable from vicarious liability.
157
Are common carriers held to special duty of care?
Yes
158
Do criminal acts of third parties tend to break causation?
Yes, unless it was foreseeable (high crime area)
159
Public nuisance
Affects everyone in community
160
Is contributory negligence a defense for strict liability?
Not in a state with traditional contributory negligence doctrine.
161
What if plaintiff is liable in state that has traditional contributory negligence jdn?
Exception: last clear chance doctrine (person with the last clear chance to avoid an accident who fails to do so is liable to the other party for negligence, despite the party's contributory negligence. Defendant must have been able to avoid harming the victim at the time of the accident. Courts will not apply last clear chance when the D's only negligence occurred earlier.
Note: Traditional contribution rules require all defendants to pay equal shares regardless of their respective degrees of fault, while states with a comparative contribution system impose contribution in proportion to the relative faults of the various judgments.
162
What is indemnity and when is it appropriate?
Indemnity involves shifting the entire loss between or among tortfeasors, and is available where:
1. There is a contractual promise to indemnity,
2. There is a special relationship between defendants that would allow for vicarious liability, or
3. The defendant is a supplier in a strict products liability case who is liable to an injured customer, thus giving the supplier a right of indemnification against previous suppliers in the distribution.
4. SOME STATES allow joint tortfeasor to recover indemnification from co-joint tortfeasor where there is a considerable difference in the degree of fault.
163
What is a delegable duty?
General rule: principal not liable for tortious acts of its agent if the agent is an independent contractor.
Broad exception: liability if duty is nondelegable due to public policy considerations
