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Bar Exam > Torts > Flashcards

Torts Flashcards

1
Q

Are a plaintiff’s super-sensitivities to be taken in to account in an intentional torts case?

A

No, unless the defendant knew of them in advance.

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2
Q

Can a defendant lack the capacity to have intent to commit an intentional tort?

A

No.

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3
Q

A person intends the consequence of her action if it was her ____________ to bring about the consequence, or if she was ____________ __________of the consequences.

A

purpose; substantially certain

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4
Q

Intent can transfer from intended to actual _________ and ______.

A

person and tort.

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5
Q

What are the elements for a prima facie case for battery?

A
  1. harmful or offensive contact, to

2. Plaintiff’s person.

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6
Q

What is offensive contact?

A

Contact that is “unpermitted” or offensive to a reasonable person

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7
Q

What is contact to a Plaintiff’s person

A

The person herself or anything connected with the plaintiff.

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8
Q

What are the elements to the prima facie elements for assault?

A
  1. Apprehension of

2. an immediate batter.

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9
Q

For assault, must the persons apprehension of a battery be reasonable?

A

Yes.

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10
Q

Is apprehension equivalent to fear or intimidation?

A

No - the person does not have to be scared.

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11
Q

For assault, must the defendant actually have the ability to commit a battery for apprehension to be reasonable?

A

No, apparent ability may create reasonable apprehension.

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12
Q

Can words alone create a reasonable apprehension of imminent bodily harm?

A

No, mere words are not enough. Must have words coupled with conduct.

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13
Q

What are the elements to the prima facie elements for false imprisonment?

A
  1. Sufficient act of restraint

2. Bounded area

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14
Q

Is a threat enough to be a sufficient act of restraint for false imprisonment?

A

Yes.

EXAMPLE: “If you leave I’m going to kill you.”

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15
Q

Is inaction enough to be a sufficient act of restraint for false imprisonment?

A

Yes, so longa s there was an understanding that the defendant would act.

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16
Q

Must the plaintiff be aware of the confinement to sustain an action for false imprisonment?

A

Yes, unless the plaintiff is harmed by their confinement.

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17
Q

The length of time of confinement is ___________ for false imprisonment.

A

Irrelevant.

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18
Q

What constitutes a bounded area for false imprisonment?

A

The person’s freedom of movement is restricted.

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19
Q

A mere inconvenience ___________ enough for false imprisonment.

A

is not.

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20
Q

An area is not bounded if there is a _____________ means of escape f which the plaintiff is aware.

A

reasonable

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21
Q

What are the elements to the prima facie elements for intentional infliction of emotional distress?

A
  1. Outrageous conduct

2. Damages

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22
Q

Can conduct become outrageous because the conduct is continuous?

A

Yes.

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23
Q

Can a person bring a successful claim for intentional infliction of emotional distress for everyday insults?

A

No. We do not want to open floodgates to allow claims for everyday insults.

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24
Q

Which types of plaintiffs is conduct assumed to be more outrageous against?

A

Young children, elderly people, and pregnant women.

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25
Q

For which types of defendants make otherwise ordinarily insulting conduct outrageous?

A

Common carriers and innkeepers

A relationship must exist between defendant and plaintiff

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26
Q

If a common carrier or innkeeper insults a person at a restaurant, is their conduct classified as outrageous?

A

No - a relationship must exist.

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27
Q

What damages must be proven to establish a prime facie case for IIED?

A

severe emotional distress.

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28
Q

Must a plaintiff show physical damages to establish a prima facie case for IIED?

A

No.

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29
Q

What intent is sufficient to establish IIED?

A

Recklessness can suffice.

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30
Q

Is transferred intent available for IIED?

A

Normally, no.

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31
Q

What are the elements to the prima facie elements for trespass to land?

A
  1. Act of physical invasion

2. To land.

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32
Q

Must a defendant know he or she is crossing a property line for trespass?

A

No.

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33
Q

Propelling a physical object onto property _________ suffice for a trespass action.

A

will.

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34
Q

What is included in “land” for a trespass action?

A

All airspace above and the subsurface below the surface so long as the owner could make reasonable use of the space.

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35
Q

What are the elements to the prima facie elements for trespass to chattels or conversion?

A
  1. Act of physical invasion

2. Personal property

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36
Q

What is the difference between trespass to chattels and conversion?

A

Level of damage or interference with the property.

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37
Q

What intent is required for trespass to chattels and conversion?

A

Intent to do the act that brings about the interference.

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38
Q

Consent is a defense to…

A

defamation, nuisance, and all intentional torts.

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39
Q

Who lacks capacity to consent?

A
  1. Children
  2. People with mental impairments
  3. Those coerced or forced to consent
  4. Those who consent on the basis of fraud or mistake
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40
Q

What is implied consent?

A

Consent that arises through custom and usage or through a plaintiff’s own conduct.

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41
Q

What amount of force is a person justified to use in self-defense?

A

Reasonable force to prevent what she reasonably believes to be an imminent threat of force against her.

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42
Q

For self-defense, a belief that the defendant was in danger must be _____________.

A

reasonable.

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43
Q

When may a person use deadly force?

A

When the defender reasonably believes that she faces a threat of death or serious bodily harm.

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44
Q

When is retreat required?

A

COURTS ARE SPLIT!

Modern trend requires retreat, unless you are in your own home or in face of deadly force.

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45
Q

What force may a person use in defense of others?

A

In the same manner and under the same conditions as the person attacked would be entitled to defend himself.

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46
Q

Is a defender liable for his actions in defense of another when acting under a mistaken belief?

A

No, so long as he reasonably believed that another person was endangered.

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47
Q

What level of force may a person use to defend his real or personal property?

A

Reasonable force - deadly force may never be used to protect property alone.

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48
Q

A person may use ___________ force to retrieve wrongfully taken property when in hot pursuit.

A

reasonable.

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49
Q

How may a shopkeeper detain a suspected shoplifter?

A

In a reasonable manner for a reasonable amount of time.

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50
Q

Public necessity is a(n) ____________ privilege to protect ______ of people

A

unlimited; a lot

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51
Q

Private necessity is a(n) _____________ privilege to protect __________ of people.

A

qualified; limited

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52
Q

A defendant must still pay damages even after a successful claim of _________ necessity

A

private.

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53
Q

What are the elements to the prima facie elements for negligence?

A
  1. Duty
  2. Breach of duty
  3. Actual
  4. Proximate cause
  5. Damages
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54
Q

To whom is a duty owed?

A

All people who are foreseeable victims of your failure to take precautions.

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55
Q

Rescuers are _________ foreseeable.

A

always

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56
Q

What level of care must a person exercise?

A

The amount of care a reasonable prudent person under the same or similar circumstances.

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57
Q

Is a defendant expected to use superior skill or expertise he possesses for the plaintiff’s benefit?

A

Yes.

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58
Q

Are a defendant’s physical disabilities attributed to the reasonable prudent person standard?

A

Yes

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59
Q

Are a defendant’s mental disabilities attributed to the reasonable prudent person standard?

A

No

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60
Q

What level of care must a child exercise?

A

The degree of care that a reasonable child of like age, intelligence, and expertise would exercise under the circumstances.

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61
Q

What level of care is a child held to who engages in adult activities.

A

An adult standard.

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62
Q

What standard of care must a professional exercise? (e.g., doctor/lawyer)

A

the knowledge and skill of an ordinary member of the profession in good standing.

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63
Q

Who is held to a professional standard of care?

A

A person who holds himself out as a learned professional.

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64
Q

For a medical malpractice action, what must a doctor show?

A

Informed consent

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65
Q

What must the plaintiff show in a legal malpractice action?

A

Causation.

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66
Q

What duty does a person owe to an undiscovered trespasser of land?

A

No duty.

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67
Q

What duty does a person owe to a discovered trespasser for conduct of activity on land?

A

Duty of reasonable care.

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68
Q

What duty does a person owe to a licensee for conduct of activity on land?

A

Duty of reasonable care.

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69
Q

What duty does a person owe to an invitee for conduct of activity on land?

A

Duty of reasonable care.

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70
Q

What duty does a person owe to discovered trespassers for static conditions on land?

A

Must warn of artificial, highly dangerous, concealed and known to you.

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71
Q

What duty does a person owe to licensees for static conditions on land?

A

Duty to warn of any concealed condition known to owner or occupier.

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72
Q

What duty does a person owe to invitees for static conditions on land?

A

Duty to inspect, i.e. reasonable care.

Liable for any conditions known about or he could have learned about by reasonable inspection.

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73
Q

Who owes a duty to invitees?

A

Those who hold land open to the public at large.

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74
Q

When does a statutory standard of care apply?

A

When the statute is designed to protect the class of persons and class of risk.

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75
Q

Generally, is there an affirmative duty to rescue?

A

No

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76
Q

When does a person have an affirmative duty to rescue

A
  1. When the defendant put the plaintiff in peril
  2. Close relationship between parties (close family relationships, common carriers and innkeepers, Invitor-Invitee relationships),
  3. Duty to control third persons (must have an actual ability and authority to control)
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77
Q

What act Is required to establish a prima facie case of an intentional tort?

A

A volitional movement.

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78
Q

Causation is satisfied if defendant’s conduct was a ____________ factor in bringing about the injury.

A

substantial

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79
Q

Are damages required in a battery action?

A

No.

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80
Q

Are damages required in an assault action?

A

No.

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81
Q

Is the length of time a person is confined relevant to a false imprisonment claim?

A

No.

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82
Q

What constitutes extreme and outrageous conduct?

A

Conduct that transcends all bounds of decency.

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83
Q

Conduct that is not normally outrageous may become so if it is:

A
  1. Continuous in nature,
  2. Conduct directed at certain types of plaintiffs (e.g., children, elderly, pregnant women)
  3. Conduct by common carriers or innkeepers
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84
Q

Is a reasonable mistake allowed in defense of property?

A

Yes as to whether an intrusion has occurred or whether a request to desist is required.

No mistake is allowed as to whether the entrant has a privilege, unless the entrant conducts the entry so as to lead the defendant to reasonably believe it is not privileged.

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85
Q

How may a person recover possession of real property?

A

At common law, under force if the other came into possession unlawfully.

At modern law, ejectment

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86
Q

When may force be used to recover chattels?

A

Only when in hot pursuit of the person who wrongfully obtained the possession.

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87
Q

When is a timely demand to return a captured chattel before force?

A

Always, unless clearly futile or dangerous.

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88
Q

When may a person enter onto a wrongdoer’s land to remove a chattel?

A

In a reasonable time and a reasonable manner.

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89
Q

When may a person enter onto an innocent person’s land to remove a chattel?

A

In a reasonable time and in a peaceful manner after the landowner has been given notice of the presence of the chattel and refuses to return it.

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90
Q

When may a person enter onto another person’s land to remove a chattel on their own fault?

A

Never.

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91
Q

Is mistake allowed regarding a defendant’s right to recapture chattels?

A

Generally, no.

Exception is shopkeepers.

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92
Q

Is mistake allowed regarding a defendant’s right to enter land to recapture chattels?

A

No.

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93
Q

How much force may be used to recapture chattels?

A

Reasonable force (not including force to cause serious bodily injury or death)

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94
Q

Is a person privileged to invade another’s land to effect an arrest?

A

Yes.

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95
Q

After a privileged arrest, can an actor be liable for failing to bring the arrested party before a magistrate, or other misconduct?

A

Yes.

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96
Q

When is an arrest for a misdemeanor privileged?

A

For breach of peace and if the action took place in front of the defendant.

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97
Q

When is a reasonable mistake allowed in a citizen felony arrest?

A

Only as to the identity of the felon.

No mistake is allowed as to whether or not the felony occurred.

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98
Q

What conditions must be satisfied for a shopkeeper to detain a suspected shoplifter?

A
  1. There must be a reasonable belief as to the fact of the theft;
  2. the detention must be conducted in a reasonable manner and only non deadly force can be used;
  3. The detention must be only for a reasonable period of time, and only for the purpose of making an investigation.
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99
Q

What force may be used by a parent or teacher in disciplining children?

A

reasonable force.

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100
Q

What are the elements of defamation?

A
  1. Defamatory language
  2. “Of or concerning” the plaintiff,
  3. Publication thereof by defendant to a third person, and
  4. damage to the plaintiff’s reputation
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101
Q

What additional elements of defamation must be proved for a defamation action involving matters of public concern?

A
  1. Falsity* of the defamatory language and
  2. Fault on the part of the defendant.

*At common law, falsity does not have to be proven in Plaintiff’s prima facie case - defendant can, instead, raise truth as a defense.

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102
Q

What is defamatory language?

A

language tending to adversely affect one’s reputation.

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103
Q

Is defamation of a dead person actionable?

A

No - Plaintiff must be living.

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104
Q

What is defamatory language “of or concerning” the Plaintiff?

A

Language that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff.

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105
Q

If the statement does not refer to plaintiff on its face, ________ evidence may be offered to establish the statement refers to the plaintiff.

A

extrinsic.

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106
Q

When a defamatory statement refers to all members of a small group, how may a plaintiff establish the statements are “of or concerning” him?

A

By alleging he is a member of that group.

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107
Q

When a defamatory statement refers to all members of a large group, how may a plaintiff establish the statements are “of or concerning” him?

A

He can not.

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108
Q

When a defamatory statement refers to some members of a small group, how may a plaintiff establish the statements are “of or concerning” him?

A

If he can show that a reasonable person would view the statement as referring to him.

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109
Q

How is a defamatory statement published?

A

Communication to a third person.

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110
Q

Who may be liable to the same extent as an author or speaker of a defamatory statement?

A
  1. Primary publishers (e.g., newspapers, TV stations)
  2. One who repeats a defamatory statement (even if she states the source or makes it clear that she does not believe the defamation)
  3. Secondary publishers (e.g., someone who sells newspapers) if he knew or should have known the defamatory content.
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111
Q

General damages are ____________ in a libel claim.

A

presumed

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112
Q

Which statements are defined as slander per se?

A
  1. Adversely reflect on one’s conduct in a business or profession;
  2. One has a loathsome disease;
  3. One is or was guilty of a crime involving moral turpitude;
  4. A woman is unchaste.
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113
Q

Are radio and television broadcasts considered slander or libel?

A

libel

114
Q

When the plaintiff in a defamation case is a public figure, what must she prove?

A

actual malice.

115
Q

What constitutes a public figure?

A

A person who achieved pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy.

116
Q

What is actual malice?

A
  1. knowledge that the statement was false, or

2. Reckless disregard as to whether it was false.

117
Q

When the plaintiff in a defamation case is a private person involving a matter of public concern, only ________ regarding the falsity must be proven.

A

negligence

118
Q

What are damages limited to in a defamation case regarding a private person in a matter of public concern?

A

actual injury (includes economic damages and damages for impairment to reputation and personal humiliation if proven)

119
Q

What does a court look to when determining whether or not a matter is of public concern in a defamation case?

A

Content, form, and context of the publication

120
Q

What are defenses to defamation?

A
  1. Consent,
  2. Truth,
  3. Absolute privilege
  4. Qualified privilege
121
Q

When does a defendant have an absolute privilege to defamation?

A
  1. remarks made during judicial proceedings,
  2. remarks made by legislators during proceedings
  3. remarks made by federal executive officials,
  4. remarks made in “compelled” broadcasts, and
  5. remarks between spouses
122
Q

When does a defendant have a qualified privilege to defamation?

A
  1. reports of official proceedings,
  2. statements in the interest of the publisher - defense of one’s actions, property, or reputation;
  3. statements in the interest of the recipient; and
  4. statemetns in the common interest of the publisher and recipient
123
Q

How may a qualified privilege to defamation be lost?

A
  1. the statement is not within the scope of the privilege, or
  2. it is shown that the speaker acted with actual malice.
124
Q

Who bears the burden of proving a qualified privilege?

A

the defendant

125
Q

What are the four kinds of wrongs included in the invasion of the right to privacy?

A
  1. Appropriation of Plaintiff’s picture or name
  2. Intrusion on Plaintiff’s affairs or seclusion,
  3. Publication of facts placing Plaintiff in false light,
  4. Public disclosure of private facts
126
Q

What must be shown for appropriation of Plaintiff’s picture or name?

A
  1. unauthorized use of plaintiff’s picture or name,

2. for defendant’s commercial advantage

127
Q

What must be shown for intrusion on Plaintiff’s Affairs?

A
  1. highly offensive
  2. prying or intruding
  3. into something private
128
Q

What is publication by false light?

A

Someone attributes to plaintiff views he does not hold or actions he did not take.

False light must be highly offensive to a reasonable person.

129
Q

For invasion of privacy, the invasion of plaintiff’s privacy must have been ____________ caused by defendant’s conduct

A

proximately

130
Q

Must Plaintiff plead and prove special damages for invasion of privacy?

A

No. Emotional distress and mental anguish are sufficient.

131
Q

What are the elements for Intentional Misrepresentation (fraud, deceipt)

A
  1. Misrepresentation of a material past of present fact;
  2. Scienter (when defendant made the statement, she knew or believed it was false or that there was no basis for the statement;
  3. Intent to induce plaintiff to act or refrain from acting in reliance upon the misrepresentation,
  4. causation (actual reliance)
  5. justifiable reliance, and
  6. damages (actual pecuniary loss)
132
Q

Are there any defenses to intentional misrepresentation?

A

No

133
Q

In a case of intentional misrepresentation, there is no general duty to disclose a material fact, unless…

A
  1. defendant stands in a fiduciary relationship with plaintiff,
  2. Defendant is selling real property and knows the plaintiff is unaware of (and cannot reasonably discover) the material informationa bout the transaction, or
  3. Defendant has spoken and her utterance deceives the plaintiff.
134
Q

When is reliance on an opinion by the defendant justifiable?

A

if the defendant offering the opinion has superior knowledge of the subject matter.

135
Q

What are the elements for a prima facie case of negligent misrepresentation?

A
  1. Misrepresentation by defendant in a business or professional capacity,
  2. breach of duty toward a particular plaintiff;
  3. causation;
  4. justifiable reliance, and
  5. damages
136
Q

What are the elements for the prima facie case of interference with business relations?

A
  1. Existence of a valid contract,
  2. defendant’s knowledge of the relationship or expectancy,
  3. intentional interference by defendant inducing a breach or termination of the relationship or expectancy; and
  4. damages
137
Q

When is a privilege to interference with business relationships likely to be found?

A

If defendant

  1. interfered with prospective business rather than existing contracts,
  2. used commercially acceptable means of persuasion rather than illegal or threatening tactics,
  3. Is a competitor of plaintiff seeking the same prospective customers, or
  4. has a financial interest in or responsibility for the third party, or is responding to the third party’s request for business advice.
138
Q

What are the elements for a prima facie case of malicious prosecution?

A
  1. institution of criminal proceedings against plaintiff,
  2. termination in plaintiff’s favor,
  3. absence o probable cause for prior proceedings,
  4. improper purpose (i.e., something other than bringing a person to justice, and
  5. damages
139
Q

Is a duty of care owed to a viable fetus?

A

Yes.

140
Q

In cases of failure to diagnose a congenital defect or properly perform a contraceptive procedure, who may recover and under what cause of action?

A

parents can recover damages for wrongful birth or wrongful pregnancy.

*Child cannot recover for wrongful life.

141
Q

When the benefit from the bailment solely benefits the bailor, what standard of care is owed by a bailee?

A

low standard of care

142
Q

When the benefit from the bailment solely benefits the bailee, what standard of care is owed by a bailee?

A

high standard of care

143
Q

When the benefit from the bailment benefits both the bailee and the bailor, what standard of care is owed by a bailee?

A

ordinary care

144
Q

What standard of care is owed during emergency situations?

A

A defendant must act as a reasonable person would under the same emergency conditions.

145
Q

In an emergency, is the emergency condition considered if it was created by the defendant?

A

No.

146
Q

What must the plaintiff establish to apply the attractive nuisance doctrine?

A
  1. A dangerous condition on the land that the owner is or should be aware of,
  2. the owner knows or should know children frequent the vicinity of the condition,
  3. the condition is likely to cause injury, and
  4. the expense of remedying the situation is slight compared with the magnitude of the risk.
147
Q

Are landowners who permit the general public to use his land for recreational purposes without charging a fee liable for injuries suffered by a recreational user?

A

No, unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

148
Q

What duty does a lessee of realty owe?

A

general duty to maintain the premises.

149
Q

What duty does a lessor of realty owe?

A

He must warn of existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection.

150
Q

When is violation of a statute excused for purposes of negligence per se?

A

Where compliance with the statute would have caused more danger than violation, or where compliance would be beyond defendant’s control.

151
Q

Under the majority view, an unexcused statutory violation is negligence per se; i.e. it establishes a conclusive presumption of __________ and ____________.

A

duty; breach

152
Q

When a bystander is outside the “zone of danger” and sees the defendant negligently injuring another, she can recover so long as…

A
  1. The plaintiff and the person injured by the defendant are closely related,
  2. The plaintiff was present at the scene of the injury, and
  3. the plaintiff personally observed or perceived the event.
153
Q

When a plaintiff is outside the zone of danger and does not suffer any physical symptoms, when can she recover for negligent infliction of emotional distress?

A

When the defendant’s negligence creates a great likelihood of emotional distress (e.g., erroneous report of a relative’s death or mishandling of a corpse)

154
Q

What is required for res ipsa loquitur?

A
  1. The accident causing the injury is a type that would not normally occur unless someone was negligent, and
  2. The negligence is attributable to defendant (shown by evidence the instrumentality causing the injury was in the exlcusive control of defendant)
155
Q

What is the effect where res ipsa loquitur has been established.

A

Plaintiff has made a prima facie case and no directed verdict may be given to the defendant.

156
Q

What are the three tests for “actual cause”?

A
  1. “But for” test
  2. substantial factor test
  3. Alternative causes approach
157
Q

What is the but for test?

A

Act or omission is the cause in fact of an injury where the injury would not have occurred but for the act. This test applies where several acts (each insufficient to cause the injury alone) combine to cause the injury.

158
Q

What is the substantial factor test?

A

Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, defendant’s conduct is the cause in fact if it was a substantial factor in causing the injury.

159
Q

What is the alternative causes approach for causation?

A

When two acts, only one of which causes the injury, but it is not known which one. The burden shifts to the defendants and each must show that his negligence is not the actual cause (Summers v. Tice)

160
Q

What is proximate cause?

A

It is a limitation of liability and deals with liability or nonliability for unforeseeable or unusual consequences of one’s acts.

161
Q

What is the foreseeability test?

A

A defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts.

162
Q

Where there is an uninterrupted chain of events from the negligent act to a plaintiff’s injury, what is defendant liable for?

A

All foreseeable harmful results, regardless of the unusual manner in which they arose or the unusual timing of cause and effect.

163
Q

What are independent intervening forces?

A
  1. Negligent acts of third persons,
  2. Crimes and intentional torts of third persons,
  3. Acts of God.
164
Q

Is defendant usually liable for foreseeable results caused by unforeseeable intervening forces?

A

Yes

165
Q

Is defendant liable for unforeseeable results caused by foreseeable intervening forces?

A

Rarely.

166
Q

Is defendant liable for unforeseeable extent or severity of harm?

A

Yes - defendant takes his plaintiff as he finds hi,

167
Q

Will damages be presumed in a negligence action?

A

No, damages is an essential element of the claim and must be proven

168
Q

For personal injury claims, what damages is defendant liable for?

A

all economic and non economic harm.

169
Q

For property damage claims, what damages is defendant liable for?

A

Reasonable cost of repair or, if the property is nearly destroyed, fair market value

170
Q

When may a plaintiff recover punitive damages in a negligence action?

A

If Defendant’s conduct is “wanton and willful,” reckless, or malicious

171
Q

What damages are nonrecoverable in negligence actions?

A

Interest from the date of damage in a personal injury action and attorney’s fees

172
Q

Plaintiff has a duty to __________ damages.

A

mitigate

173
Q

Are damages reduced just because plaintiff received benefits from other sources?

A

No - collateral source rule.

174
Q

What is contributory negligence?

A

Negligence on the part of the plaintiff that contributes to her injuries.

175
Q

Is contributory negligence a defense to intentional torts?

A

No.

176
Q

What is the effect of Plaintiff’s contributory negligence in a jurisdiction applying the traditional rules?

A

Plaintiff’s right to recover is completely barred

177
Q

What is the doctrine of last clear chance?

A

Permits Plaintiff to recover despite her contributory negligence. Person with the last clear chance to avoid an accident who fails to do so is liable for negligence.

178
Q

When is contributory negligence imputed to a third party?

A

When the relationship between the third party and the plaintiff is such that a court could find the plaintiff vicariously liable for the third party’s negligence.

179
Q

What must plantiff have done to have assumed a risk?

A
  1. Known of the risk, and

2. voluntarily proceeded in the face of the risk.

180
Q

Is assumption of the risk a defense to intentional torts?

A

No.

181
Q

What is partial comparative negligence?

A

Allows recover reduced by the fault of Plaintiff, so long as she was not more than 50% responsible for the injury.

182
Q

What are the elements for a prima facie case of strict liability?

A
  1. The nature of the defendant’s activity imposes an absolute duty to make safe,
  2. The dangerous aspects of the activity was the actual and proximate cause of the plaintiff’s injury, and
  3. the plaintiff suffered damage to person or property.
183
Q

Is an owner strictly liable for any reasonably foreseeable damage done by trespass of his animals?

A

Yes.

184
Q

An owner is ________ __________ to licensees and invitees for injuries caused by wild animals (even those kept as pets).

A

strictly liable

185
Q

Is an owner strictly liable for injuries caused by domestic animals?

A

No, unless he has knowledge of the animal’s dangerous propensities

186
Q

Is strict liability for animals available to trespassers?

A

No, absent the owner’s own negligence.

187
Q

What requirements must be met to impose strict liability for abnormally dangerous activities?

A
  1. The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors, and
  2. the activity is not a matter of common usage in the community.
188
Q

For strict liability to apply to abnormally dangerous activities, the harm must _________ from the normally dangerous characteristics.

A

result

189
Q

To find liability under any theory of products liability, what must the plaintiff show?

A
  1. a defect, and

2. existence of the defect when the product left defendant’s control

190
Q

What are manufacturing defects?

A

When a product emerges from manufacturing different from and more dangerous than the products that were made properly.

191
Q

When does a design defect exist?

A

When all products of a line are the same but have dangerous propensities.

192
Q

When may a product be defective as a result of inadequate warnings?

A

When the manufacturer’s failure to give adequate warnings as to the risks involved in using the product that may not be apparent to users.

193
Q

How does a plaintiff show that a product had a manufacturing defect?

A

The product failed to perform as safely as an ordinary consumer would expect.

194
Q

How does a plaintiff show that a product had a design defect?

A

Plaintiff must show that the defendant could have made the product safer, without serious impact on the product’s price or utility (“feasible alternative” approach)

195
Q

A product’s non compliance with government safety standards establishes that it is _______________; compliance is _____________ that the product is not defective.

A

defective; evidence

196
Q

Will a defendant be held liable for dangers not scientifically unknowable risks?

A

No - not foreseeable.

197
Q

If the danger is apparent and there is no safer way to make a product, manufacturers [will/will not] be held liable for dangerous products.

A

will not (think knives)

198
Q

Defendant will be liable to anyone injured by an unsafe product if defendant ______________ the consequences or knew that they were ___________ ____________ to occur.

A

intended; substantially certain.

199
Q

Is privity required when suing a defendant for products liability based on intent?

A

No - anyone injured by the product may sue.

200
Q

What damages are allowed when suing a defendant for products liability based on intent?

A

compensatory and punitive damages.

201
Q

What defenses are available to a defendant sued for products liability based on intent?

A

defenses available in other intentional torts cases.

202
Q

In a products liability claim based on negligence, what must Plaintiff show to establish a prima facie case?

A

Same as any negligence case.

  1. duty,
  2. breach,
  3. actual and proximate cause, and
  4. damages.
203
Q

In a products liability case based on negligence, to whom is a duty of care is owed?

A

any foreseeable plaintiff.

204
Q

In a products liability case based on negligence, who can sue?

A

Any foreseeable plaintiff, including users, consumers, and bystanders.

205
Q

In a products liability case based on negligence, who can be held liable?

A

Anyone who supplies a product to another.

Usually, commercial suppliers of products, including manufacturers, wholesalers, and retailers.

206
Q

In a products liability case based on negligence, how is breach of duty shown?

A
  1. negligent conduct of defendant leading to

2. the supplying of a defective product.

207
Q

In a products liability case based on negligence, an intermediary’s negligent failure to discover a defect [does/does not] supersede the original manufacturer’s negligence.

A

does not

208
Q

What must a plaintiff show to establish a prima facie case for products liability based on strict tort liability?

A
  1. a commercial supplier,
  2. producing or selling a defective product,
  3. actual and proximate cause, and
  4. damages.
209
Q

In a products liability case based on strict liability, who can sue?

A

Users, consumers and bystanders can all sue. No privity is required.

210
Q

In a products liability case based on strict liability, who can be held liable?

A

Any commercial supplier, including a commercial lessor in most states, can be held liable. Casual sellers cannot be held liable.

211
Q

In a products liability case based on strict liability, what must plaintiff show regarding the product?

A

The product is defective, and that defect made the product dangerous beyond the expectation of the ordinary consumer.

212
Q

In a products liability case based on strict liability, what must plaintiff show to prove actual cause?

A

The defect existed when the product left the defendant’s control.

213
Q

In a products liability case based on strict liability, when a plaintiff claims a product is defective based on lack of an adequate warning, what may be presumed?

A

An adequate warning would have been read and heeded.

214
Q

In a products liability case based on strict liability, how does a plaintiff show proximate cause?

A

Same as in negligence cases - injury must have been a foreseeable result.

215
Q

In a products liability case based on strict liability, what injury/harm must be shown?

A

Physical injury or property damage. No recovery for solely economic loss.

216
Q

In a products liability case, are disclaimers relevant if personal injury or property damage occurs?

A

No. disclaimers are irrelevant in both negligence and strict liability cases.

217
Q

What is an implied warranty of merchantability?

A

The goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used.

218
Q

What is an implied warranty of fitness for a particular purpose?

A

Seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller’s skill and judgment in selecting the goods.

219
Q

Who may sue under a breach of implied warranty of merchantability or fitness?

A

buyer, family, household, and guests can all sue for personal injuries.

220
Q

What consititutes a breach of implied warranty of merchantability or fitness?

A

If the product fails to live up to either the merchantability or fitness for a particular purpose, defendant will be held liable.

221
Q

In a breach of implied warranty case, does plaintiff have to prove any fault on the part of the defendant?

A

No. The product’s failure to live up to the implied warranty is breach.

222
Q

What damages are available for breach of implied warranty?

A

Personal injury, property damage, and purely economic loss.

223
Q

What defenses are available to claims for breach of implied warranty?

A
  1. Assumption of the risk
  2. Contributory negligence, to the extent allowed in strict liability cases, and
  3. Failure to give notice of breach (UCC)
224
Q

What is the effect of a disclaimer in an implied warranty case?

A

Generally, they are rejected in personal injury cases, but upheld for economic cases.

225
Q

What is an express warranty?

A

Any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain.

226
Q

Who can sue for breach of an express warranty?

A

Any consumer, user, or bystander.

227
Q

If a buyer sues for breach of express warranty, the warranty must have been ____ _ __ _______ __ __ _________.

A

part of the basis of the bargain.

must have relied on the warranty

228
Q

If a bystander sues for breach of express warranty, must she have relied on the representation?

A

No. As long as someone did.

229
Q

Must a plaintiff show fault to succeed in a breach of express warranty claim?

A

No, only that the product did not live up to the warranty.

230
Q

What effect are disclaimers given in claims for breach of express warranty?

A

They are treated as effective ONLY in the unlikely event that it is consistent with the warranty.

231
Q

When will a seller be liable for misrepresentations of fact?

A
  1. Where the statement was of material fact concerning the quality or uses of goods (mere puffery is insufficient), and
  2. Where the seller intended to induce reliance by the buyer in a particular transaction.
232
Q

In claims for misrepresentations of fact, the representation must have been a ____________ __________ in inducing the purchase

A

substantial factor.

*Must show justifiable reliance.

233
Q

Is assumption of the risk a defense to claims for misrepresentations of fact?

A

No, if plaintiff is entitled to rely on the representation.

234
Q

What is private nuisance?

A

Substantial, unreasonable interference with another private individual’s use or enjoyment of property that he actually possess or to which he has a right of immediate possession.

235
Q

For private nuisance, what is “substantial interference”?

A

Interference that is offensive, inconvenient, or annoying to the average person in the community.

236
Q

For private nuisance, when will an interference be considered “unreasonable”?

A

When the severity of the inflicted injury outweighs the utility of defendant’s conduct.

237
Q

In an action for private nuisance, what must be considered when determining if interference is unreasonable?

A

The surrounding neighborhood, land values, and existence of any alternative courses of conduct open to the defendant.

238
Q

What is a public nuisance?

A

An act that unreasonably interferes with the health, safety, or property rights of the community.

239
Q

When is recovery available to a private party for public nuisance?

A

Only if the private party suffered unique damage not suffered by the public at large.

240
Q

What remedies are available for nuisance?

A
  1. Damages,
  2. Injunctive relief (if legal remedy is unavailable or inadequate,
  3. Abatement by self-help.
241
Q

When is self-help abatement available to a plaintiff in a case of private nuisance?

A

After notice to defendant and his refusal to act. Only necessary force may be used.

242
Q

What defenses are available to a defendant to a case of nuisance?

A
  1. Legislative authority (persuasive, not absolute defense),
  2. Conduct of others (when damages caused by concurrence of defendant’s act and others’)
  3. Contributory negligence
  4. Coming to the nuisance (purchasing land next to an existing nuisance for the sole purpose of bringing a harassing lawsuit.
243
Q

When is an employer vicariously liable for tortious acts committed by an employee?

A

If the tortious act occurs within the scope of the employment relationship.

244
Q

Is an employer liable for the tortious conduct of an employee on a frolic?

A

No.

deviation in time or geographic area is substantial

245
Q

Is an employer liable for the tortious conduct of an employee on a detour?

A

Yes.

246
Q

When is an employer vicariously liable for the intentional torts of an employee?

A
  1. Force is authorized in the employment (e.g. bouncer),
  2. Friction is generated by the employment (e.g., bill collector), or
  3. The employee is furthering the business of the employer (e.g., removing rowdy customers from the premises).
247
Q

May an employer be held liable for the negligence selecting or supervising of their employers?

A

Yes - this is their own negligence.

248
Q

When will a principal be held vicariously liable for tortious acts of an independent contractor?

A
  1. The independent contractor is engaged in inherently dangerous activities, or
  2. The duty, because of public policy considerations, is simply nondelegable (e.g., duty to use due care in building a fence around an excavation site)
249
Q

When are members of a partnership or joint venture vicariously liable for the tortious conduct of another member?

A

If the tort was committed in the scope and course of the affairs of the partnership or joint venture.

250
Q

Are owners of automobiles generally vicariously liable for the tortious conduct of another person driving his car?

A

Generally, no. Some jurisdictions, though, employ theories other than vicarious liability to hold an automobile owner liable for torts of a driver.

251
Q

What is the family car doctrine?

A

An owner of an automobile is liable for the tortious conduct of an immediate family or household member who is driving with the owner’s express or implied permission.

252
Q

What is the permissive use doctrine for automobiles?

A

Liability is imposed on an owner for damage caused by anyone driving the owner’s car with consent.

253
Q

For what actions may an owner be held liable for in a case of negligent entrustment?

A

An owner may be liable for her own negligence in entrusting a bailed object to a bailee.

(this includes negligent entrustment of a car to a driver by the owner)

254
Q

Is a bailor vicariously liable for the tortious conduct of a bailee?

A

Generally, no. But bailor may be liable for negligent entrustment.

255
Q

Are parents vicariously liable for the tortious conduct of their children at common law?

A

No, unless the child is acting as an agent of the parent.

However, many states make parents liable for willful and intentional torts of minor children up to a certain dollar amount via statute.

256
Q

When may a parent be liable for their own negligence related to the tortious conduct of a child?

A

When the parent allowed the child to do something or apprised the child’s conduct in the past.

257
Q

At common law, is liability imposed on vendors of intoxicating beverages for injuries resulting from a vendee’s intoxication?

A

No

258
Q

Under modern law, is liability imposed on vendors of intoxicating beverages for injuries resulting from a vendee’s intoxication?

A

Yes. Either under enacted Dramshop Acts or under ordinary negligence principles (foreseeable risk of serving a minor or obviously intoxicated adult)

259
Q

When to or more defendants act in concert and injure a plaintiff, is each jointly and severally liable for the entire injury?

A

Yes

260
Q

Many states have abolished joint liability in cases based on fault either for…

A
  1. those defendants judged to be less at fault than plaintiff or
  2. all defendants regarding noneconomic damages.
261
Q

What is a satisfaction?

A

recovery of full payment.

Only one satisfaction is allowed.

262
Q

In most states, does the release of one tortfeasor discharge other tortfeasors?

A

No, unless expressly provided for in release agreement.

263
Q

What does the rule of contribution allow?

A

Allows a defendant who pays more than his share of damages under joint and several liability to have a claim against other jointly liable parties for the excess.

264
Q

How is contribution imposed in comparative contribution systems?

A

In proportion relative to fault of various defendants.

265
Q

How is contribution imposed in equal shares contribution systems?

A

Apportionment is in equal shares regardless of degrees of fault.

266
Q

What is indemnity?

A

Indemnity shifts the entire loss between or among tortfeasors.

267
Q

When is indemnity available?

A
  1. By contract,
  2. in vicarious liability situations,
  3. under strict products liability, and
  4. in some jurisdictions where there has been an identifiable difference in degree of fault.
268
Q

Do tots invading intangible personal interests expire upon a victim’s death?

A

Yes

Examples: defamation, invasion of right of privacy, malicious prosecution.

269
Q

What is the effect of a survival act?

A

Survival acts allow one’s cause of action to survive death (include torts to property and personal injury)

270
Q

What is the effect of a wrongful death act?

A

Grants recovery for pecuniary injury resulting to the spouse and next of kin.

271
Q

Do a decedent’s creditors have any claim against an award in a wrongful death action?

A

No

272
Q

Who may bring a claim for loss of consortium?

A

Either spouse for indirect interference with consortium and services caused by defendant’s intentional or negligent tortious conduct against the other spouse.

A parent for loss of a child’s services or consortium.

273
Q

May a spouse sue the other spouse for tortious conduct?

A

Yes - most states have abolished the husband-wife immunity.

274
Q

May a child sue a parent for the parent’s tortious conduct?

A

In a slight majority of states, yes (but generally not for merely negligent supervision).

275
Q

Where it survives, governmental immunity attaches to what kind of functions?

A

Governmental, not proprietary.

276
Q

Under the Federal Tort Claims Act, for which torts will immunity still attach?

A
  1. Assault,
  2. Battery,
  3. False imprisonment,
  4. False arrest,
  5. Malicious prosecution, 6. abuse of process,
  6. libel,
  7. misrepresentation or deceit,
  8. interference with contract.
277
Q

Most states have substantially waived their immunity to the same extent as __________ _______________.

A

federal government.

278
Q

Does immunity exist for municipalities?

A

In about half of the states, immunity has been abolished to the same extent as the state.

279
Q

When are public officials immune from tort liability?

A

when carrying out official duties for discretionary acts done without malice or improper purpose.

280
Q

Does charitable immunity exist?

A

Most jurisdictions have eliminated charitable immunity.

281
Q

Does assumption of risk apply to rescuers?

A

It may, depending on the circumstances (example: if the rescue were reckless.)

Bar Exam (14 decks)

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