Torts Flashcards
(91 cards)
1
Q
What are the intentional torts?
A
Battery
Assault
False imprisonment
Intentional infliction of emotional distress
Trespass to land
Trespass to chattel
Conversion
2
Q
Which intentional torts require proof of damages?
A
Intentional infliction of emotional distress
Trespass to chattel
Conversion
Do not require damages: battery, assault, false imprisonment, trespass to land,
3
Q
What are the rules for intent?
A
Can be either specific or general
- Specific - the actor intentionally acts to bring about the specific consequences
- General - the actor knows with substantial certainty that the consequences will result
Everyone has capacity to commit a tort (incapacity, incompetency, young minor is not a defense)
4
Q
How do you satisfy causation?
A
When the defendant’s action was a substantial factor in bringing about the injury
5
Q
What are the elements of battery?
A
Harmful or offensive contact
- Harmful - if it causes actual injury, pain, or disfigurement
- Offensive - if it would be considered offensive to a reasonable person
To the plaintiff’s person (including attachments to the plaintiff, such as clothing)
Intent; and
Causation
- Note that damages are not required
6
Q
What are the elements of assault?
A
An act by defendant creating a reasonable apprehension in plaintiff
- Plaintiff must have knowledge of the apprehension
- If defendant has the apparent ability to commit a battery, this suffices as reasonable apprehension. Words alone are not sufficient; words must be coupled with conduct
Of immediate harmful or offensive contact to plaintiff’s person
- Harmful - if it causes actual injury, pain, or disfigurement
- Offensive - if it would be considered offensive to a reasonable person
Intent; and
Causation
- Note that damages are not required
7
Q
What are the elements of false imprisonment?
A
An act or omission on the part of defendant that confines or restrains plaintiff to a bounded area
- Plaintiff must know of the confinement or be harmed by it
Intent
Causation
- Note that damages are not required
8
Q
What are the elements for intentional infliction of emotional distress?
A
An act by defendant amounting to extreme and outrageous conduct
- Conduct that transcends all bounds of decency. Can become extreme and outrageous if it is:
- Continuous in nature; or
- Directed toward a certain type of plaintiff (children, elderly, supersensitive adults if the sensitivity is known to defendant, etc.)
- Common carriers and innkeepers may be liable for even “gross insults”
Intent or recklessness
Causation; and
Damages (severe emotional distress)
- Proof of injury not required. The more outrageous the conduct, the less proof of damages required
*Exam tip: IIED is a fallback. If another alternative in the question is a tort that will allow plaintiff to recover, it should be chosen over this alternative
9
Q
What are the elements for intentional infliction of emotional distress on a bystander?
A
Either the prima facie elements for IIED or
(1) she was present when the injury occurred, (2) she is a close relative of the injured person, and (3) the defendant knew facts (1) and (2)
10
Q
What are the elements for trespass to land?
A
Physical invasion of plaintiff’s real property; intangible matters brings case for nuisance
- May be a person or object
Intent; and
- Need only intend to enter on land; does not need to intend to trespass; mistake is not a defense because he need not know that the land belongs to another
Causation
11
Q
What are the elements for trespass to chattel?
A
(1) An act that interferes with plaintiff’s right of possession;
* Interference may be intermeddling (damaging) or dispossession (depriving possession)
(2) Intent;
- Intent to do the act that interferes with right of possession; not intent to damage
- Mistaken belief that defendant owns the chattel is no defense
(3) Causation; and
(4) Damages (actual, not nominal)
12
Q
What are the elements of conversion?
A
(1) An interference with plaintiff’s right of possession that is so serious as to warrant the defendant pay the chattel’s full value
* Wrongful acquisition, wrongful theft, substantially changing, severely damaging, etc.
(2) Intent
(3) Causation
(4) Damages (interference serious enough to warrant that defendant pay the chattel’s full market value)
* May also recover the chattel (replevin)
13
Q
What are the defenses to intentional torts?
A
Consent; express (actual) or implied (apparent)
- Ask: (1) was there a valid consent (no fraud)?, (2) did the defendant stay within the scope of consent?
- Capacity is required to give consent; incompetents, drunken people, and very young children are incapable of consent (differs from intent)
Self-defense, defense of others, and defense of property
- The person must reasonably believe a tort is about to be committed (i.e. about to be attacked), and the level of defense made must be reasonably necessary to prevent the harm
- If more force than reasonably necessary is used, then defense is lost
- This privilege only available for preventing the commission of a tort; but one can act in defense when in hot pursuit
- A reasonable mistake is allowed for defense of self or others, but not for defendant’s right to recapture chattel (but shopkeepers have a privilege to detain)
- Deadly force or serious bodily harm only permissible when one reasonably believes a serious threat of bodily harm is about to ensue
- Deadly force is not allowed for defense of property; if someone breaks into a home deadly force is only allowed for defense against serious injury or death
14
Q
What are the elements for defamation?
A
(1) defamatory language,
(2) “of or concerning” the plaintiff,
(3) publication by defendant to a third person, and
(4) Damage to plaintiff’s reputation
15
Q
What are the rules for defamation of a public concern?
A
If defamation involves a matter of public concern, the plaintiff must also show
(5) falsity of the defamatory language, and
(6) fault on the defendant
16
Q
What is defamatory language?
A
Language tending to adversely affect one’s reputation
17
Q
What is of or concerning the plaintiff for defamation?
A
A reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff
18
Q
What is publication?
A
Communication of the defamation to a third person who understands it.
- Can be made either intentionally or negligently
It is the intent to publish, not the intent to defame, that is the requisite intent
If the defamatory language is made only to the plaintiff, the general rule is no defamation
19
Q
What is the difference between libel and slander?
A
Libel - the written or printed publication of defamatory language
- Plaintiff does not need to prove special damages
- General damages are presumed
Slander - spoken defamation
- Plaintiff must prove special damages unless it is slander per se (e.g. adversely reflect one’s conduct in a business or profession; one has a loathsome disease; one is or was guilty of a crime involving moral turpitude; or a woman is unchaste)
20
Q
What is meant by falsity and fault for a matter of public concern?
A
Falsity - statement made was false
Fault - type of fault depends on whether plaintiff is public or private figure
- A person is a public figure by achieving pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy
- If the person is not a public figure but is matter of public concern, then must show either:
- Actual malice, in which damages are presumed for libel or slander per se; or
- Negligence and actual injury (not necessarily pecuniary interest)
21
Q
What type of fault must plaintiff prove if public figure?
A
If person is a public figure, then must prove actual malice (knowledge that the statement was false or reckless disregard to whether it was false)
- Subjective test
If actual malice, then damages are presumed for libel or slander per se
22
Q
What is meant by a matter of public concern?
A
Courts look at content, form, and context of publication
23
Q
What is meant by actual injury for defamation?
A
Not limited to economic damages; may include impairment to reputation and personal humiliation as long as the plaintiff presents evidence of such damages (i.e. no presumed damages)
24
Q
What are the differences for defamation must plaintiff prove depends on private/public person and public/private concern?
A
Type of Plaintiff/Defamation
Fault Required
Damages Recoverable
Public official or public figure
Actual malice (knowledge of falsity or reckless disregard as to truth or falsity)
Presumed damages under common law rules (and punitive damages where appropriate)
Private person/matter of public concern
At least negligence as to statement’s truth or falsity
Damages only for proved “actual injury” (if plaintiff proves actual malice, presumed and punitive may be available)
Private person/matter of private concern
No fault as to truth or falsity need be proved (unless required by state law)
Presumed damages under common law rules (and punitive damages where appropriate)
25
What are defenses to defamation?
**Consent** - plaintiff consented to publication
**Truth** - where plaintiff does not need to prove falsity (i.e. purely private matter), defendant may prove truth as a complete defense
* Note: plaintiff does not need to prove falsity in a common law defamation case b/c damages are presumed to be false; defendant has burden to prove truth as a defense
**Absolute privilege** - defendant is protected for remarks made in judicial proceedings, by legislators during proceedings, by federal executive officials, "compelled" broadcasts, and between spouses
**Qualified privilege** - reports of official proceedings, statement in interest of publisher, statement in interest of recipient,
* Qualified privilege may be lost if (1) statement is not within the scope of the privilege, or (2) it is shown that the speaker acted with actual malice.
**Defendant bears the burden** of proving a privilege exists
26
What are the types of invasion to right of privacy?
Appropriation of plaintiff's picture or name
Intrusion on plaintiff's affairs or seclusions
Publication of facts placing plaintiff in a false light
Public disclosure of private facts about plaintiff
27
What is appropriation of plaintiff's picture or name?
**Unauthorized use** of plaintiff's picture or name for defendant's **commercial advantage**
28
What is intrusion on plaintiff's affairs or seclusions?
**Prying or intruding** must be **highly offensive to a reasonable person**, and the matter of the intrusion must be **private**
29
What is publication of facts placing plaintiff in false light?
When one attributes to plaintiff **views plaintiff does not hold or actions plaintiff did not take**, and must be **highly offensive to a reasonable person** under the circumstances
* If a matter of public interest, then must prove **actual malice**
30
What is public disclosure of private facts about plaintiff?
Public disclosure about **private information** (matters of public record are not sufficient)
Must be **highly offensive to a reasonable person of ordinary sensibilities**
31
What is required to prove interference with a business relationship?
(1) Existence of a valid contractual relationship or valid business expectancy, (2) defendant had knowledge of relationship or expectancy, (3) intentional interference, and (4) damages
32
What is required to prove malicious prosecution?
(1) Institution of criminal proceeding, (2) termination in plaintiff's favor, (3) absence of probable cause, (4) improper purpose, and (5) damages
* Prosecutors are immune from liability
33
What is required to prove abuse of process?
(1) Wrongful use of process for an ulterior purpose, and (2) definite act or threat against plaintiff to accomplish an ulterior purpose
34
What is intentional misrepresentation?
Fraud or deceit
Elements: (1) misrepresentation of a **material past or present fact**, (2) **scienter**, (3) **intent to induce** plaintiff to act or refrain from **acting in reliance** on misrepresentation, (4) **causation (actual reliance)**, (5) **justifiable reliance**, (6) **damages** (must suffer actual pecuniary loss)
There are no defenses to intentional misrepresentation
35
What is scienter?
When defendant made the statement, she **knew or believed it was false or** that there was **no basis** for the statement
36
What is negligent misrepresentation?
Misrepresentation that is not intentional
Elements" (1) **misrepresentation in a business or professional capacity** (2) **breach of duty** toward a particular plaintiff, (3) **causation**, (4) **justifiable reliance** on misrepresentation, and (5) **damages**
**Liability** will only attach **if reliance** by the plaintiff could have been **foreseeable**
37
What are the elements for a prima facie case of negligence?
A **duty** on the part of the defendant **to conform to a specific standard of conduct** for protection of plaintiff against an unreasonable risk of injury
A **breach** of the duty
**Actual and proximate cause** of plaintiff's injuries
**Damage**
38
What is the standard for a duty of care?
The **reasonable person** standard - an **objective standard** of what a **reasonable person would do in similar circumstances**
* Custom or usage may be used to determine standard of care, but does not control
If the conduct creates an **unreasonable risk of injury** in the **position of the plaintiff,** then a **general duty extends** from defendant to plaintiff (and likely breached the duty)
A **duty of care** is owed **to all foreseeable plaintiffs**
The extent of the duty is determined by the applicable standard of care
* A **defendant should know his physical handicaps** and may breach his duty if he goes beyond his physical capabilities
* A **defendant who has knowledge or experience superior** to an average person has a **duty to exercise that experience**
* A defendant's **mental deficiencies are no excuse**; still measured against the reasonable person standard
39
What are the rules for particular standards of conduct?
A **professional** or someone with **special occupational skills** is required to possess the **knowledge and skill of a member of that profession or occupation**
* For **doctors**, most courts apply a **national standard of care**, not local.
**Children** are held to the standard of a child of **like age, education, intelligence, and experience**; this is a **subjective test**
* Children engaged in **adult activities** may be required to conform to an **adult standard of care**
**Common carriers and innkeepers** are held to a very high degree of care; they are liable for slight negligence
40
What are the standards for bailments?
The bailor transfers to the bailee **possession** of the chattel but **not title** (i.e. loan a car)
Duties owed by bailee - standard of care of bailee depends on who benefits
* (1) for **sole benefit of the bailor**, low standard of care
* (2) for **sole benefit of the bailee**, high standard of care
* (3) for **mutual benefit** (i.e. bailment for hire), ordinary standard of care
* The modern trend applies a duty of ordinary care under the circumstances, whereby the type of bailment is just one factor taken into account
Duties owed by bailor - for a **sole benefit of the bailor**, the bailor must **inform the bailee of known, dangerous defects** in the chattel. For a **bailment of hire**, she must inform bailee of **defects which she is or should be aware**
41
What are the duties owed to trespassers?
**No duty** is owed to an **undiscovered trespasser**
For **discovered or anticipated** trespassers, the landowner must (1) **warn or make safe concealed, unsafe artificial conditions known** to landowner involving risk of death or serious bodily harm, and (2) **use reasonable care in "active operations"** on the property
**No duty** is owed for **natural conditions or less dangerous artificial** conditions
Easement and license holders owe a duty of reasonable care to trespassers
42
What are the duties owed to licensees?
A duty to (1) **warn of** or **make safe** dangerous conditions (**natural or artificial**) known to the owner **that create an unreasonable risk of harm** and that licensee is **unlikely to discover**, and (2) **exercise reasonable care in "active operations"**
**No duty to inspect or repair**
A **licensee** is one who **enters for her own purpose or business**, including **social guests**
43
What are the duties owed to invitees?
The **same duties to licensees plus** a duty to make **reasonable inspections** to discover **nonobvious** dangerous conditions and **make safe**
**Invitees** are ones who enter "by invitation" for a connected **business purpose or as members of the public** when land is held open to the public
* If **recreational land used by the public,** **not liable** for injuries **unless willfully and maliciously failed to guard or warn** of dangerous condition or activity
A **vendor** must disclose concealed, unreasonably dangerous conditions to **vendee** of which **he knows or has reason to know**
44
What is the attractive nuisance doctrine?
A **duty of care** to **exercise ordinary care** to avoid a **reasonably foreseeable risk** of harm **to children** caused by **dangerous conditions** on the property.
* **Typically** an **artificial** condition but **occasionally** a **natural** condition
Plaintiff must show
* (1) a **dangerous condition** that the owner **knows or should be aware** of
* (2) the owner **knows or should know children frequently visit** the vicinity of the condition
* (3) the condition is **likely to cause injury** (dangerous because of the child's inability to appreciate the risk); and
* (4) the **expense of remedying** the situation is **slight compared with the magnitude of the risk**
The child **does not need to be attracted onto the land** by the dangerous condition, nor is attraction alone enough to establish liability
45
What are the rules for statutory standards of care?
A statute providing for criminal penalties, including fines, may replace the duty of care if (1) plaintiff is **within the protected class** and (2) the statute was **designed to prevent the type of harm** suffered (**negligence per se**)
Establishes first two requirements in a prima facie case: duty and breach of duty
46
What is the duty to protect against negligent infliction of emotional distress?
Plaintiff must (1) be within the **zone of danger,** and (2) suffer **physical symptoms** from the distress
* The **zone of danger** means distress was caused by a **threat of physical impact**
* **Physical symptoms** may include **severe shock** to the nervous system
* A minority of states have dropped the physical symptoms requirement
47
When can a bystander allege negligent infliction of emotional distress when outside zone of danger?
(1) **closely related** to person injured
(2) **present** at the scene of injury, and
(3) **personally observed or perceived** the event
Minority of states have dropped the physical symptoms requirement
48
What are the rules for an affirmative duty to act?
By acting, one has **assumed a duty to act** (once defendant undertakes aid, he must do so with **reasonable care**)
* **Good Samaritan** statutes exempt doctors, nurses, etc. from liability (but **not from gross negligence**)
One has a **duty** to assist someone he has **negligently placed in peril**
**Common carriers, innkeepers, and shopkeepers have a duty of reasonable care to aid or assist** their patrons
49
What is res ipsa loquitur?
Plaintiff must show:
* (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 the defendant
* Can be shown by demonstrating that the **instrumentality** causing the injury was **in exclusive control** by the defendant
Res ipsa establishes a **prima facie case; no directed verdict** may be given for defendant
* Plaintiff can still lose if negligence is rejected by trier of fact
* But grant directed verdict if plaintiff has failed to establish res ipsa and failed to present some other evidence of breach of duty
* Deny plaintiff's directed verdict unless plaintiff established negligence per se and there is no issue of proximate cause
50
What is actual cause?
Actual cause is **cause in fact.** Several tests exist to establish cause in fact:
* **But for test** - an act or omission that would have not caused the injury **but for** the act
* **Joint causes - substantial factor test** - conduct is a cause in fact if it was a **substantial factor** in causing the injury
* Used where several causes bring about the injury, and **any one alone** would have been **sufficient to cause the injury**
* **Alternative causes approach** - applies when there are two acts, only **one** of which causes the injury, but it is **not known which one**. The **burden of proof shifts to defendants**, and each must show that his negligence is not the actual cause
* Under the **joint causes** approach, **both parties caused the harm**. Under the alternative causes approach, although both parties acted negligently, only one caused the harm
51
What is proximate cause?
Defendant is **not liable unless** the cause of injury was **foreseeable**
* Often times questions on proximate cause will be whether a party is entitled to summary judgment; **deny summary judgment** if there is **any issue of foreseeability** for the jury
Defendant is **not liable for unforeseeable harmful results** not within the risk created by defendant's conduct.
52
What is a dependent intervening force and an independent intervening force?
**Dependant intervening force -** A **natural response or reaction** to defendant's conduct
* Negligence of rescuers, efforts to protect the person or property of oneself or another, injurieis cause by another reacting to defendant's actions, subsequent diseases caused by a weakend condition, and subsequent accident substantially caused by the original injury
**Independent** intervening force - **Not a natural** response or reaction to defednant's conduct, but **still foreseeable**
* Negligent acts of third persons, crimes and intentional torts of third person, and acts of God
**Both are *foreseeable intervening forces*** *in which **defendant is liable***
53
What are the rules for foreseeable intervening forces?
Defendant is **liable where his negligence caused a foreseeable harmful response or reaction** from a dependent intervening force or created a foreseeable risk that an independent intervening force would harm plaintiff
In a **rare case** where a totally unforeseeable result was caused by a foreseeable intervening force, most courts hold defendant not liable
54
What are the rules for unforeseeable intervening forces?
Defendant is **liable where his negligence increased the risk of a foreseeable harmful result** and that result is ultimately produced by an unforeseeable intervening force
* This rule **does not apply** where the unforeseeable intervening force was a crime or intentional tort of a third person
Intervening forces that produce **unforeseeable results** (results not within the increased risk created by defendant's negligence) are generally deemed **unforeseeable and superseding.**
* **Superseding forces break the causal connection**
55
What are the standards for foresseable and unforseeable intervening forces in a nutshell? **IMPORTANT**
If the **harmful result is foreseeable**, then the defendant is **liable**
* It does **not matter** if the intervening force was **foreseeable or unforeseeable**
If the harmful result was **not foreseeable**, then defendant is **not liable**
* The intervening force is a **superseding force**
Applies to **analysis of proximate cause**
56
What is the standard for punitive damages?
When conduct is **wanton and willful, reckless, or malicious**
57
What is contributory negligence?
Negligence on the part of the plaintiff that contributes to her injuries (a defense)
* Not a defense to wanton and willful conduct or intentional tortious conduct
**Completely bars plaintiff's right to recovery**
* Last clear chance can be a rebuttal to the defense of contributory negligence
58
What is comparative negligence?
The trier of fact weighs plaintiff's negligence and reduces damages accordingly
**Partial** comparative negligence **bars plaintiff's recovery** if his negligence was **more serious than defendant's** (or in some states as serious as defendant's)
**Pure** comparative negligence states **allow recovery no matter how great** plaintiff's negligence was
* Assume pure comparative negligence applies unless the question states otherwise
Is a defense to wanton and willful conduct, but not a defense to intentional torts
**Last clear chance** is **not used in comparative negligence** jurisdictions
59
What is assumption of risk?
When plaintiff assumes the risk of any damage caused by defendant's acts. Plaintiff must have (1) **known of the risk**, and (2) **voluntarily proceeded** in the face of the risk
May be assumed by express agreement or implied
Denies plaintiff recovery
60
What is the rule for trespassing animals?
An owner is **strictly liable** for **reasonably foreseeable** damage done by a **trespass of his animals**
61
What are the strict liability rules for personal injuries?
An owner is strictly liable to **licensees and invitees** for injuries caused by **wild animals** (even those kept as pets)
An owner is **not strictly liable** for injuries caused by **domestic animals,** including farm animals, **unless he knows of a particular animal's dangerous propensities** that are not common to the species.
Injury caused by the **normally dangerous characteristics of domestic animals** (e.g. bulls or honeybees) **does not create strict liability**
Strict liability is **not available to trespassers.**
However, a landowner **may be liable on intentional tort** grounds for injuries inflicted by **vicious watchdogs**
62
What are the rules for abnormally dangerous activities?
(1) The activity must create a **foreseeable risk of serious harm** even when reasonable care is exercised; and
* **No amount of reasonable care** will relieve the actor of strict liability
(2) The activity is **not a matter of common usage** in the community
Other points:
* Liability extends **only to foreseeable plaintiffs** and the **harm must result from the kind of danger** to be anticipated from the activity or animal, including harm caused by fleeing from the danger
* Strict liability will not apply if injury is caused by something else (e.g. dynamite truck blows a tire and hits a pedestrian)
63
What are the defenses against strict liability?
**Contributory negligence is no defense** if plaintiff has **failed to realize the danger** or guard against it
* It **is a defense if plaintiff knew of the danger** and his **unreasonable conduct** was the cause of harm
**Assumption of the risk** is a defense
Most c**omparative negligence states apply comparative negligence rules** to strict liability
64
What is products liability?
Liability of a **supplier of a defective product for injury caused by the defective product.**
Privity between plaintiff and defendant is not required
65
What are the theories of product liability?
Intent
Negligence
Strict liability
Implied warranties of merchantability and fitness for a particular purpose
Representation (express warranty and misrepresentation)
66
What are the elements for all products liability theories?
(1) A **defect**, and
(2) Existence of the d**efect when the product left the defendant's control**
67
What are the types of defects?
**Manufacturing Defect** - when a product emerges from manufacturing **different from and more dangerous than the products that were made properly**
* **Plaintiff** must show the product **failed to perform as safely as an ordinary consumer would expect**
* The **defendant** must **anticipate reasonable misuse**
**Design Defect** - when **all products** of a line are the same but have **dangerous propensities**
* Must show the defendant **could have made the product safer** without serious impact on the price or utility (the "feasible alternative" approach)
**Inadequate Warning-** When the manufacturer **fails to give adequate warning** as to the risk involved that may not be apparent to users.
* **Must also show the feasible alternative approach**
68
When is strict liability based on intent?
When defendant **intended the consequences** or **knew they were substantially certain** to occur, and caused damages
The most likely tort is **battery**
69
When is strict liability based on negligence?
Must show prima facie case of negligence: (1) duty, (2) breach, (3) actual and proximate cause, and (4) damages
Breach also includes (a) **negligent conduct** of defendant leading to (b) the supplying of a **defective product**
Plaintiffs can include users, consumers, and bystanders, and anyone who supplies the product may be held liable, but usually a manufacturer, wholesaler, or retailer
Physical injury or property damage is required; economic loss is not enough
70
What are the duties of inspection in negligence cases?
Retailers and wholesalers can usually satisfy their duty by a **cursory inspection**, thus difficult to hold them liable
* A wholesaler or retailer's negligent failure to discover a defect **does not supersede** the original manufacturer's negligence unless the intermediary's conduct exceeds ordinary foreseeable negligence
71
When can plaintiff invoke res ipsa loquitur for strict liability?
In a manufacturing defect case when the defect is something that would not usually occur without the manufacturer's negligence
72
When is liability based on strict tort liability?
(1) A **commercial supplier** of a product
* Casual sellers are not commercial suppliers and cannot be liable under strict liability
* Retailers may be liable even if they have no opportunity to inspect
(2) **Producing or selling a defective product**
(3) **Actual and proximate cause**, and
* The product must reach the plaintiff without substantial alteration ; the **defect must exist when the product left defendant's control**
(4) **Damages**
* **Physical injury or property damage**; not economic loss
73
What defenses exist for strict liability?
For **contributory negligence**, it is **no defense** where **plaintiff merely failed to discover the defect or guard against its existence**, or where plaintiff's misuse was reasonably foreseeable
Assumption of the risk is a defense
For **comparative negligence**, courts will apply **the same comparative negligence rules**
**Disclaimers are irrelevant** for strict liability if personal injury or property damage occur
74
What is the implied warranty of merchantability?
Whether the goods are of **average acceptable quality** and are **fit for the ordinary purpose** for which they are used
75
What is the implied warranty for a particular purpose?
Arises when the 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 goods.
76
What constitutes breach for the implied warranties?
If the product **fails to live up to either of the above standards**, the warranty is breached and the **defendant will be liable**
Actual and proximate causes are the same as in ordinary negligence
Can recover personal injury, property damage, and purely economic loss
**Disclaimers are generally rejected in personal injury but upheld for economic loss**
77
What is an express warranty?
Any **affirmation of fact or promise** concerning goods that **become part of the basis of the bargain**
Plaintiff need only show that the product did not live up to its warranty
Causation, damages, and defenses are the same as for implied warranties
A **disclaimer** is effective **only in** the unlikely event that it is **consistent with the warranty**
78
What is misrepresentation of fact?
A seller is liable when (1) the **statement was of a material fact** concerning quality or use of goods (mere puffery is insufficient); and (2) seller **intended to induce reliance** by the statement of fact
* **Justifiable reliance on the buyer is required**. Actual cause is shown by reliance.
Liability is **usually based on strict liability** but **may also arise for intentional or negligent misrepresentation**
79
What is a private nuisance?
A **(1) substantial and (2) unreasonable interference** with another private individual's **use or enjoyment** of property that he possesses or has a right of immediate possession
* **Substantial** interference is interference that is **offensive, inconvenient, or annoying to the average person in the community**. Hypersensitivity or specialized use of property will not suffice
* **Unreasonable** interreference means the **severity of the inflicted injury must outweigh the utility of defendant's conduct**
* Courts balance and take into account that everyone is entitled to use their own land in a reasonable manner
80
What is a public nuisance?
An act that **unreasonably interferes** with the **health, safety, or property rights** of the community
Recovery by a private party is available only if he suffered unique damages
81
What are the remedies for nuisance?
Damages
Injunctive relief (when damages are unavailable or inadequate)
Abatement by self help
* Must **first give notice to defendant** and his refusal to act
* **Only necessary force** may be used
* For **public nuisance, only a public authority** or a private party who has suffered some unique damages can seek an injunction or abatement
82
What is the meaning of "come to a nuisance"?
One may come to a nuisance and, thereafter, pursue an action. It is generally not a bar to plaintiff's action unless she came to the nuisance **for the sole purpose** of bringing a harassing lawsuit
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What is vicarious liability?
Liability that is derivately imposed, meaning another person is liable to a third party for the tortfeasor's act.
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What is the doctrine of Respondeat Superior?
A master/employer will be liable for tortious acts committed by the servant/employee within the **scope of employment**
A **minor frolic or detour** is permissible, but if it extends in time or geographic area then the employer is not liable
An employer is **not liable for intentional torts unless** they are **within the scope of employment** (i.e. bouncer, bill collector, furthering business by removing customers)
Employers **may be liable for their own negligence by negligently selecting or supervising** the employees (but this is not vicarious liability)
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What is a frolic and a detour
**Frolic** - a **major departure** in time or area; employer is **_not_ liable**
**Detour** - a **minor deviation** for his own purpose; still acting withn scope of employment and **employer _is_ liable**
86
Are employers liable for independent contractors?
Generally, no. Two **exceptions**:
* The independent contractor engaged in **inherently dangerous activities**, or
* The duty, because of public policy, is **nondelegable**
Employer **may be liable for negligently selecting or supervising** the independent contractor
In a bailor/bailee relationship, the **bailor may be liable for negligent entrustment**
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What is the standard for parent/child relationship?
A parent may be liable for **negligently allowing a child to engage in an activity**
If the child's past conduct shows the **child's tendency to injure others**, the parent **may be liable for lack of due care in exercising control** over the child
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What is joint and several liability?
When two or more negligent acts combine to proximately cause an i**ndivisible injury**, **each** negligent actor will be **jointly and severally liable** (i.e. liable to plaintiff for the entire damage incurred)
* Defendants can file claims against each other for portion of liability (they have **contribution rights** against the other defendants)
If the injury is **divisible**, each defendant is **liable only for the identifiable portion**
When two are more defendants **act in concert** and injure plaintiff, each is **jointly and severally liable** for the entire injury. This is so even if the injury is divisible.
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What is satisfaction and release?
**Satisfaction** - recovery of **full payment.**
* **Only one satisfaction is allowed**. **Until** there is a **satisfaction**, however, one **may proceed against all jointly liable parties**
**Release** - a **release of one tortfeasor does not discharge other tortfeasors** unless it is expressly provided for in the release agreement
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What is contribution?
It allows a **defendant who pays more than his share** of damages under joint and several liability **to have a claim against any other jointly liable parties** for the excess (i.e. it apportions responsibility).
**Comparative contribution** is **imposed in proportion to the relative fault** of the various defendants
**Equal shares** means apportionment is **equal regardless of degrees of fault** (minority view)
Contribution is **not allowed among intentional tortfeasors**
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What are federal governmental tort immunities?
Under the Federal Tort Claims Act, the U.S. has **waived immunity** for tortious acts. However, immunity will still attach for (1) assault, (2) battery, (3) false imprisonment, (4) false arrest, (5) malicious prosecution, (6) abuse of process, (7) libel and slander, (8) misrepresentation and deceit, and (9) interference with contract rights
Most states have also waived immunity to the same extent
About half of the states have abolished municipal immunity to the same extent
The majority of jurisdictions have eliminated charitable immunity
Public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose. Liability attaches, however, for ministerial acts
