Torts Flashcards

Question

FALSE IMPRISONMENT bounded area [ intentional torts ]

Answer 1

area that is bounded on all sides from which there is no reasonable and known means of escape NOTE = P is under no duty to search for an exit and is not required to use a dangerous or humiliating exit

Answer 2

P may recover damages for the confinement and for injuries incurred in reasonable attempts to escape

Answer 3

1. Shopkeeper’s defense 2. False arrest defense for police 3. False arrest defense for private citizens

Answer 4

available if the shopkeeper 1. reasonably believes that a theft has occurred; 2. the manner of the detention and the force used are reasonable; and 3. the period of confinement is reasonable (minutes, but not hours) ALSO applies to assault and/or battery claims against shopkeepers

Answer 5

a police officer has a defense to false imprisonment if 1. the arrest is made pursuant to a valid warrant OR 2. the arrest is for a felony and the officer reasonably believes that the felony occurred and that the plaintiff committed it OR 3. the arrest is for a misdemeanor (that resulted in a breach of the peace) committed in the officer’s presence

Answer 6

a private citizen has a defense if 1. the arrest is for a felony, the felony in fact occurred, and the citizen reasonably believes that the plaintiff committed it OR 2. the arrest is for a misdemeanor (that resulted in a breach of the peace) committed in the citizen’s presence

Answer 7

1. Extreme and outrageous conduct by D 2. Intentionally designed to inflict distress or reckless (i.e., a deliberate disregard of a high probability of emotional distress) 3. P suffers severe emotional distress (no physical injury or physical consequences are required)

Answer 8

conduct that exceeds all bounds of decency tolerated in a civilized society

Answer 9

physical threats, heavy-handed collection efforts, willful mishandling of corpses, cruel practical jokes words, insults, or offensive language are generally insufficient BUT non-outrageous conduct may become outrageous if - it is frequently repeated or done in public - P is a child, elderly person, pregnant woman, or someone the defendant knows is sensitive - D is an inn-keeper or common carrier (bus, train, airplane) AND P is a guest or passenger (in such cases, even gross insults suffice)

Answer 10

neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition that is recognized and diagnosed by professionals

Answer 11

For behavior that "nearly misses" qualifying as an assault, false imprisonment, defamation, or invasion of privacy, IIED is often used as a FALL-BACK TORT on essay questions

Answer 12

In rare cases (Falwell?!), the First Amendment may be a defense to IIED

Answer 13

yes, under TWO circumstances 1. if D injured the other person for the purpose of causing P emotional distress (= IIED) 2. If P and the injured person are close relatives AND P was present at the scene of the injury AND P personally observed the event (= IIED or NIED) - in some cases, P must also prove that D knew P was present or acted with reckless disregard to P’s presence - In addition, some states allow recovery by persons who are not close relatives, but only if that person suffers physical consequences (like a heart attack) from the distress NOTE that these actions are DERIVATIVE = if the injured party was at fault, P may not recover (or may not recover the full amount of her damages)

Answer 14

1. D acts intending to (or with substantial certainty that it will occur) 2. enter 3. P’s land (including surface and usable space above/below)

Answer 15

the intent required is simply the intent to ENTER the land there is NO requirement to show intent to trespass or wrongfully enter the land

Answer 16

1. D enters the land or wrongfully stays (or allows an item to stay) on the land 2. D pushes or chases another on to the land 3. D causes an object heavier than air to enter or cross the land (smoke, noise, shockwaves, and sound are insufficient but don’t be sad—see nuisance)

Answer 17

may be asserted by owners or occupiers (ex = tenants) or even adverse possessors

Answer 18

Proof of actual damages is not required because nominal damages are presumed

Answer 19

1. D acts intending to (or with substantial certainty that it will occur) - intent required is the intent to do the act, not the intent to damage or dispossess or steal 2. interfere with or damage P’s personal property - applies to tangible property only, not land or services 3. causation 4. damages (dispossession or injury)

Answer 20

Nope, not a defense

Answer 21

D’s wrongful possession or damage suffices

Answer 22

may be asserted by • owners • lessees • even adverse possessors of the property BUT may NOT be asserted by thieves

Answer 23

= fair rental value for any dispossession period OR the cost of repair NOTE = this tort requires proof of ACTUAL damages

Answer 24

1. D acts intending to (or with substantial certainty that it will occur) 2. Seriously interfere with or damage P’s personal property - applies to tangible property only, not land or services 3. causation 4. damages (dispossession or injury) aka SAME as trespass to chattels EXCEPT conversion applies if the interference or damage to personal property is SERIOUS

Answer 25

forced sale (D must pay the FMV of the property at time of conversion) P may also elect replevin, plus damages for dispossession Idk why this has to be said, but kinsler put it under damages? - if D borrows personal property without permission and the property is seriously damaged or destroyed (even if damage was caused by 3P), this is conversion

Answer 26

a question of DEGREE the GREATER D’s bad faith = the MORE LIKELY it will be conversion

Answer 27

1. Consent 2. Self-defense 3. Defense of others 4. Defense of property 5. Public necessity 6. Private necessity

Answer 28

May be express = by words - ex = “you may park on my land” May be implied = by conduct or custom - ex = participant in hockey impliedly consents to be "checked" or a participant in a pick-up basketball game impliedly consents to being pushed around a bit (BUT does not consent to an intentional punch in the face or a stabbing why does this need to be said?!)

Answer 29

Would a reasonable person have expected this contact?

Answer 30

Only those with CAPACITY = no young kids, insane people, drunks

Answer 31

affirmative defense for all intentional torts EXCEPT battery (for which P must prove lack of consent)

Answer 32

to use these defenses, D must REASONABLY BELIEVE that the tort is being committed or is about to be committed (D does not have to be right, as long as his belief is reasonable) D may NOT retaliate or preempt (defense must be to prevent the tort) BUT D CAN pursue a thief in hot pursuit

Answer 33

D may use whatever force is REASONABLE under the circumstances (including deadly force) if D or 3P is facing DEATH OR SUBSTANTIAL BODILY HARM to protect property, D may use any force NOT INTENDED OR LIKELY TO CAUSE DEATH OR SERIOUS BODILY INJURY (actual death or serious injury is not the test) (ex = springs guns, booby traps, land mines, etc. may not be used to protect property) for home invaders, use self-defense rules if the home is occupied, not defense of property rules (aka deadly force may be used in the right circumstances) ordinarily, D must make a REQUEST for return of property before using force to get the property back UNLESS OBVIOUSLY FUTILE force may not be used against someone with a claim of right (potential owner/lessee) to the property too much force is used = no defense

Answer 34

D is NEVER required to retreat before using NON-DEADLY force Majority = D is NOT required to retreat before using DEADLY force Minority = no duty to retreat before using DEADLY force (1) from D’s own home or (2) if retreat cannot be done safely

Answer 35

If D acts in self-defense and an innocent party is injured, D is excused for causing the injury UNLESS he acted NEGLIGENTLY

Answer 36

= COMPLETE defense to PROPERTY torts (usually trespass to land or conversion) **NEED ELEMENTS**

Answer 37

= INCOMPLETE defense to PROPERTY torts **NEED ELEMENTS**

Answer 38

Necessity SUPERSEDES defense of property | = a person may NOT use force to defend property against someone she knows entered the property out of necessity

Answer 39

Where P is a PRIVATE FIGURE and the ISSUE is NOT OF PUBLIC CONCERN (aka purely private dispute) 1. D made a DEFAMATORY STATEMENT about P 2. Published (either intentionally or negligently) by D to 3P who understands the statement and the language 3. Damages (which are presumed for libel and slander per se)

Answer 40

1. = statement that exposes P to public hatred, contempt, scorn, shame, or ridicule 2. statement must concern facts or opinions implying underlying facts (pure opinions or name-calling will not suffice) 3. P must show that a reasonable person - would think that the statement concerns P AND - would understand the defamatory nature of the statement (unless defamatory nature of the statement is clear on its face aka defamation per se) 4. P is NOT required to prove that anyone who heard the statement believed it to be true

Answer 41

@ common law, defamation was a strict liability tort most states today require that the defendant was at least negligent

Answer 42

damages are presumed for harm to P’s reputation for: 1. ALL LIBEL = written defamation, radio, TV, tape-recordings, most communications by computer 2. SLANDER PER SE = oral defamation concerning either a. P’s trade or profession or b. accusing P of a serious crime or c. alleging that P currently has loathsome disease (ex = VD, Leprosy) d. alleging that P is unchaste NOTE = for all other slanders, P must prove actual money losses If P is able to prove actual money losses, P may also obtain damages for reputational harm

Answer 43

1. Consent (ex = P consented to release of investigative report) 2. Truth (D must prove truth) 3. Absolute privileges (if an absolute privilege exists, D may not lose it, regardless of malice) 4. Qualified privileges (D will lose a qualified privilege if he makes false statements intentionally, recklessly, maliciously, or over-publishes statement)

Answer 44

1. statements by fed or state legislators on floor of legislature or in committee sessions 2. statements by executive officials in the course of their duties 3. statements made in judicial proceedings by judges, jurors, attorneys, parties, and witnesses if in any way related to the proceeding 4. statements between spouses

Answer 45

Aka conditional privileges 1. answering requests for info from prospective employers (references) or credit agencies 2. reporting a crime to the police

Answer 46

``` D will lose a QUALIFIED privilege if he makes false statements - Intentionally - Recklessly - Maliciously OR over-publishes statement ``` BUT: if an ABSOLUTE privilege exists, D may not lose it, regardless of malice

Answer 47

Where P is a PUBLIC OFFICIAL, CANDIDATE FOR PUBLIC OFFICE, OR PUBLIC FIGURE (and hence the issue is of PUBLIC CONCERN), public official/figure must prove 1. defamatory statement about P 2. published by D (to a 3P) 3. the statement is false (probably by clear & convincing evidence) 4. D acted with actual malice

Answer 48

= D made the statement knowing it was false or with reckless disregard for the truth aka a subjective belief that it was false (by clear and convincing evidence)

Answer 49

= elected or appointed government official with substantial responsibility over government affairs (ex = governor, state senator, mayor, police officer)

Answer 50

= a public figure is someone who has general notoriety or someone who has asserted herself into a controversy the spouse of a public figure is not automatically treated as a public figure

Answer 51

if the public has a legitimate interest in the subject (e.g., a private lawyer accused of overbilling the government for legal work)

Answer 52

Where P is private figure and issue is of public concern, P must prove 1. a defamatory statement about P 2. published by D (to 3P) 3. the statement is false (by a preponderance) 4. D made the statement (at least) negligently (by a preponderance) 5. P must also prove actual damages (but actual damages are not limited to out-of-pocket losses) 6. to recover presumed or punitive damages, P must prove that D made the statement knowing it was false or with reckless disregard for the truth

Answer 53

= a subjective belief that it was false

Answer 54

If the First Amendment bars P’s recovery for defamation, P may not use other torts, such as IIED or Right to Privacy, to recover

Answer 55

Defamation and Right to Privacy suits are "personal" and thus end at the plaintiff’s death (in most states) and cannot be brought on behalf of someone who is already dead (with the possible exception of Misappropriation of Plaintiff’s Name or Likeness)

Answer 56

1. Misappropriation of P’s name/likeness 2. Intrusion into P’s seclusion 3. Publication of P in (highly offensive) false light 4. Public disclosure of private facts

Answer 57

1. D uses P’s name or likeness 2. For the purpose of taking advantage of P’s reputation, prestige or other value 3. For some commercial gain associated with misappropriation (ex = using name/likeness to sponsor or endorse a product) NOTE = this tort doesn’t cover “newsworthy” uses of another’s name/likeness such as newspapers, magazines, or books (aka that a newspaper contains someone’s name and also is a for-profit company does not mean any use of someone’s name within a news story is a misappropriation of that person’s name or likeness)

Answer 58

1. Intrusion into a private place, conversation, or matter and 2. In a manner that is highly offensive to a reasonable person ex of seclusion = her home, office, car

Answer 59

1. D knocks on P’s door, calls him on a few occasions to demand payment of debt (only becomes intrusion if it is with such PERSISTENCE AND FREQUENCY to become a SUBSTANTIAL BURDEN to his existence) 2. most things in public are not going to be sufficient for intrusion (ex = D observes P in public or takes his photo while he is walking on a public highway) BUT if D discusses in public things about P hidden from public gaze = would give rise to an intrusion action

Answer 60

1. D gives publicity to a matter concerning P (can be oral/written/other communication means, no set number of people required for publicity) 2. Portraying P in a false light 3. And it is highly offensive to a reasonable person

Answer 61

If P is public official/figure, P must prove ACTUAL MALICE test to prevail

Answer 62

1. Public disclosure = widespread | 2. must be private facts (cannot use this when it’s a matter of public concern)

Answer 63

1. There’s an absolute privilege for publishing matters in the public record 2. (ex = name of rape victim)

Answer 64

Aka deceit 1. D made a statement of material fact (not opinion) 2. knowing it was false or with reckless disregard for the truth 3. intending for P to rely on the statement 4. P justifiably relied on the statement, and 5. such reliance caused P to suffer actual pecuniary loss

Answer 65

P has NO duty to investigate the truth of D’s statement, unless it is obviously false

Answer 66

TRICK | P may not recover for emotional harm (must be actual pecuniary loss)

Answer 67

Most jurisdictions require P to prove intentional misrepresentation by CLEAR AND CONVINCING EVIDENCE

Answer 68

D who is in the business of supplying info for the guidance of others in biz transactions may be liable for negligent misrepresentations Ex = accountant or surveyor

Answer 69

D owes a duty ONLY to those persons to whom the representation was made and to those persons D actually KNEW would rely on it in their biz transactions

Answer 70

P is generally limited to reliance damages for negligent misrepresentation P must suffer actual PECUNIARY loss (may not recover for emotional harm

Answer 71

Contributory negligence is a defense | ex = an unreasonable failure to investigate

Answer 72

1. an act by D 2. on her land 3. that unreasonably interferes with the health/safety of the community at large ex = toxic waste or operating an illegal business (gambling, prostitution, drugs)

Answer 73

an individual may bring suit for damages and/or to enjoin a public nuisance ONLY IF she has suffered some UNIQUE INJURY (different than that of the general public) otherwise, such suits must be brought by AG or DA

Answer 74

1. Occurs if D is using her land 2. in such a way that causes SUBSTANTIAL AND UNREASONABLE INTERFERENCE 3. with P’s land (ex = smoke, odors, sounds, shockwaves, unsightly objects or conditions)

Answer 75

interference that is offensive, inconvenient, or annoying to an average person in the community

Answer 76

the court will balance the equities of D’s use against the interference to P’s use, and may award damages, a partial or complete injunction, a forced purchase of P’s property, or nothing at all Exception = if D has WILLFULLY (aka spitefully) created the nuisance, court will NOT balance the equities, but rather will rule against D

Answer 77

1. P is super-sensitive (ex = extreme concern with noise) (aka the interference would not bother an average person in the community) 2. P came to the nuisance (this is NOT a BAR to P’s recovery, but is a relevant factor for the court)

Answer 78

1. Duty (q of law) 2. Breach (q of fact) 3. Causation (q of fact) 4. Damages (q of fact)

Answer 79

50% of MBE torts Qs are based on negligence

Answer 80

1. Foreseeable P | 2. Standard of care

Answer 81

Rule = D owes a duty of care only to foreseeable Ps in negligence actions BUT virtually all Ps are foreseeable, so this issue is rarely tested if tested, will use PALSGRAF facts (or v similar) = negligent act committed on P1 (who was clearly foreseeable) that injured P2 (whose foreseeability was debatable) 2 PALSGRAF tests 1. CARDOZO Test (majority view) = D is liable to P2 only if P2 is in the ZONE OF DANGER of D’s negligent conduct 2. ANDREWS Test = if D owes duty of care to P1, also owes duty of care to P2

Answer 82

Generally, firefighter, police officer, or other emergency professional may NOT hold a person liable for injuries suffered in responding to situation created/caused by ORDINARY negligence

Answer 83

Majority view = D owes not duty to P to avoid creating unreasonable risks of harm for injuries that are inherent in sports and recreational activities

Answer 84

If p is foreseeable, then D owes P a duty of care Type of duty depends on D’S STATUS (and sometimes P’s status)

Answer 85

1. Reasonable person (default = Ds who don’t fit other categories) 2. Children under age 5 3. Children age 5 and up 4. Professionals 5. Common carriers and innkeepers 6. Auto drivers

Answer 86

= ordinary, prudent person of average experience and intelligence under same/similar circumstances (objective std) in EMERGENCY, SOC = REASONABLE PERSON IN EMERGENCY situation --- 2 EXCEPTIONS 1. DISABILED D = D with physical disabilities must act like a reasonable person with the same or similar disabilities BUT D who is mentally disabled, intoxicated, or inexperienced must act like an ordinary reasonable person 2. EXPERT D = if D has a particular expertise, D may be held to a higher standard

Answer 87

= incapable of committing negligence | BUT remember = still liable for intentional torts

Answer 88

= child of like age, education, intelligence, and experience (somewhat subjective std) --- EXCEPTION = ADULT ACTIVITY child will be held to REASONABLE PERSON std if child is performing an adult activity (ex = using an adult motorized vehicle)

Answer 89

= skill and knowledge of member in good standing in profession ordinarily, EXPERT WITNESS must testify as to appropriate SOC and whether that std was breached, UNLESS breach is a matter of common sense --- EXCEPTION = if D is 1. specialist (like board-certified) or 2. expert (or holding herself out as such) = D will be held to higher std (NATIONAL in scope)

Answer 90

= liable for SLIGHT negligence but only to passengers

Answer 91

= liable for SLIGHT negligence but only to guests

Answer 92

= reasonable person std --- EXCEPTION = GUEST STATUTES A few states have statutes that hold drivers liable only for WILLFUL + WANTON CONDUCT if P is NON-PAYING PASSENGER

Answer 93

1. duty of care owed by - owners/occupiers of land - and people in privity with owners/occupiers (like family members and employees) = one of the most complicated issues in tort law 2. duty varies depending on - P’s status and - location where P was injured 3. D owes duty only if she is owner/occupier @ TIME P is injured

Answer 94

1. Duty owed to those not on D’s land 2. Duty owed to undiscovered trespassers 3. Duty owed to discovered trespassers 4. Duty owed to licensees 5. Duty owed to biz/public invitees 6. Duty owed to infant trespassers

Answer 95

D must act like a REASONABLE PERSON to protect those not on D’s land from 1. ACTIVITIES on the LAND 2. OVERHANGING TREES in URBAN areas 3. DANGEROUS ARTIFICIAL conditions near BORDER of the land

Answer 96

D owes NO DUTY to undiscovered for activities or static conditions on land BUT D is liable to undiscovered trespassers for INTENTIONAL TORTS and RECKLESS (aka WILLFUL + WANTON) MISCONDUCT

Answer 97

D has NO DUTY TO SEARCH for trespassers D owes a duty to those D knows or should know are ACTUALLY present on the land for 1. ACTIVITY on land = D owes a duty to act like a REASONABLE PERSON 2. STATIC CONDITION on land = D owes a duty to warn of CONCEALED + KNOWN + ARTIFICIAL (man-made) conditions that pose RISK OF DEATH/SERIOUS BODILY INJURY - BUT NO duty to WARN of OBVIOUS dangers - Examples of static conditions = uncovered well, concealed hole, high-voltage electric fence

Answer 98

D owes duty to those on the land for their OWN PURPOSE, including social guests, visiting relatives, police, firefighters): 1. ACTIVITY on land = D owes duty to act like REASONABLE PERSON 2. STATIC CONDITION on land = D has a DUTY TO WARN of conditions that are CONCEALED + KNOWN + DANGEROUS (natural and artificial) --- BUT - NO duty to WARN of OBVIOUS dangers - NO duty to INSPECT property for dangerous conditions

Answer 99

D owes duty to those on the land for the purpose of the landowner, including customers, visitors to public property, and non-emergency public employees): 1. ACTIVITY on land = D owes duty to act like REASONABLE PERSON 2. STATIC CONDITION on land = D has DUTY TO WARN of (or preferably make safe) CONCEALED + DANGEROUS conditions about which D KNOWS OR SHOULD KNOW = D has a duty to make REASONABLE INSPECTIONS BUT NO duty to WARN of OBVIOUS dangers --- - Trend = many states apply this std to both licensees and business invitees - If P goes into area not intended for customers (like room labeled "for employees only"), P will revert to licensee or trespasser

Answer 100

children who are around 12 or younger may recover for injuries if she can show 1. owner knew or had reason to know children were likely to trespass and 2. owner knew artificial condition posed an unreasonable risk to children and 3. because of her age, infant did not realize danger and 4. cost of remedying danger was slight compared to risk and 5. owner failed to exercise reasonable care - owner must take reasonable measures to protect children - BUT no requirement to make premises child-proof

Answer 101

If criminal statute/ordinance/traffic regulation is quoted in torts Q, ask = DOES STATUTE ESTABLISH SOC? Requires 1. Statute designed to protect against this type of harm AND 2. P is within class protected by statute - If so = D’s failure to comply with statute constitutes NEGLIGENCE PER SE - Aka conclusive proof of duty and breach - (but not of causation or damages) --- BUT compliance with law = evidence that D met SOC but not conclusive NOTE = if Negligence Per Se is unsuccessful or excused, P may rely on ordinary negligence claim

Answer 102

``` if P is within class protected by statute, P’s contributory negligence will not bar recovery (ex = children in a school zone) ```

Answer 103

circumstances where D’s failure to comply with statute will be EXCUSED = 1. where compliance would be more dangerous 2. where compliance is beyond D’s control (ex = D has heart attack while driving) 3. where violation is reasonable in light of D’s young age or physical disability

Answer 104

For P to recover for NIED, P must show 1. emotional distress that resulted in PHYSICAL INJURY - (aka physical consequences, like nervous breakdown, mistercarriage, paralysis, heart attack, etc.) - BUT physical injury is not required for a. NEGLIGENT HANDLING of relative’s CORPSE or b. ERRONEOUS REPORTING of close relative’s DEATH & 2. Either a. P was in TARGET ZONE of D’s negligence (no requirement that D make physical contact with plaintiff, but there must be at least a near miss) OR b. NEGLIGENT DIAGNOSIS from medical professional NOTE = minority of states apply regular negligence standards to NIED (foreseeability)

Answer 105

If P suffered actual physical injuries from contact w/ D, P can always seek damages for emotional distress as part of that claim

Answer 106

- Whether D breached applicable SOC is question of fact - If D failed to meet applicable SOC = breach - if D met applicable SOC = no breach

Answer 107

compliance with or failure to meet industry custom is ADMISSIBLE as evidence but NOT CONCLUSIVE EXCEPTION = in med mal cases, D’s compliance w/ established medical customs is often dispositive (as no breach)

Answer 108

In some cases, the very fact that a particular harm has occurred may satisfy (at least to some degree) the breach requirement If Q provides that P was injured but P has no direct evidence to prove that D was negligent, consider using res ipsa loquitur

Answer 109

RIL applies where 1. accident that injured P is of type that does not generally occur w/o negligence and 2. D had exclusive control over instrumentality/condition that caused injury and 3. no evidence that P was contributorily negligent NOTE = #3 generally not required in states that use comparative fault

Answer 110

meeting 3 RIL requirements results in PERMISSIVE INFERENCE of negligence = 1. allows P to survive motion for SJ/JMOL 2. permits (doesn’t require) jury to rule in favor of P

Answer 111

2 types of causation= P needs BOTH to prevail 1. P must show CAUSATION-IN-FACT = actual or factual causation 2. only if that’s shown, P must then prove PROXIMATE CAUSATION = legal scope of liability

Answer 112

Test for 1 tortfeasor = but for D’s negligent act, P wouldn’t have been injured Test for 2+ tortfeasors = but for Ds’ combined negligent acts, P wouldn’t have been injured - (even when one tortfeasor’s alone would not have)

Answer 113

aka independent concurrent causation If 2+ tortfeasors commit negligent acts AND either act alone would have been enough to cause same INDIVISIBLE injury to P = both JOINTLY AND SEVERALLY LIABLE

Answer 114

(from Summers v. Tice) If 2+ Ds commit negligent acts AND only one act caused P’s injury, but P doesn’t know which = court will shift burden of proving causation to Ds if Ds unable to prove which one caused tort = both held JOINTLY AND SEVERALLY LIABLE

Answer 115

= D is liable only if TYPE of harm that occurs was FORESEEABLE risk of D’s negligent act NOTE = in typical tort case, type of harm is usually foreseeable (thus D will be proximate cause) --- TE$T TIP = for UBE purposes, proximate cause is lacking ONLY 1. where chain of events leading from D’s negligent act and P’s injury is bizarre or unbelievable or 2. where unforeseeable affirmative act of 3P (including God) intervenes btwn D’s negligent act and P’s injury - aka only UNFORESEEABLE intervening acts (known as superseding acts) will break chain from D’s negligent act to P’s injury

Answer 116

foreseeability of acts = question of fact - intervening acts generally considered foreseeable 1. ordinary negligence of medical personnel that aggravates P’s injuries 2. infections or diseases resulting from injuries caused by D 3. injuries or property damage caused by negligence of rescuers (suffered by rescuer/P/3P) 4. injuries or property damage resulting from attempt to escape by P (suffered by P/3P) 5. subsequent accidents resulting from original injuries

Answer 117

intervening acts generally considered unforeseeable (unless facts indicate that were foreseeable by D in this particular case, like flood/tornado warnings or high crime area) 1. criminal acts of 3P (unless D’s negligence increased risk of such criminal acts) 2. intentional torts or grossly negligent torts of 3P 3. acts of the OG 3P, my dude, my lord+savior, please give it up 4 God (ex = lightning strikes, tornados, floods)

Answer 118

1. Negligence requires proof of ACTUAL damages 2. Compensatory damages = must be proved with REASONABLE certainty 3. GOAL of tort damages = to make P whole (aka to return P to position she was in prior to the tort)

Answer 119

to be held liable, D must FORESEE TYPE of humpty dumpty’s injury but need not have foreseen extent of injury

Answer 120

P may not recover damages for emotional distress (or other emotional injuries) suffered as a result of property damage

Answer 121

P must take reasonable steps to mitigate damages (P must seek medical treatment for injuries) D is not liable for avoidable damages

Answer 122

Majority view benefits P receives from her employer, health insurance, disability insurance, or gov are not deducted from P’s award of damages

Answer 123

Punitive damages are not awarded in negligence cases - UNLESS D acted wantonly, willfully, maliciously, or recklessly (ex = drunk driving) In many states, conduct justifying punitive damages must be proved by CLEAR + CONVINCING evidence - ALSO many states have statutory caps on punitive damages and require they be proved in bifurcated trial

Answer 124

1. Contributory negligence 2. Comparative fault 3. Implied assumption of the risk

Answer 125

In jurisdictions using common law contributory negligence, if P’s negligence contributed in any way (even 1%) to her injuries, P is barred from recovering - 5 jurisdictions using common law contributory negligence = AL, DC, MD, NC, VA (because of the harshness of contributory negligence, there are several exceptions to defense)

Answer 126

1. Reckless torts = contributory negligence is not a defense to reckless tort 2. Last clear chance = P’s contributory negligence will not bar recovery if D had last clear chance of preventing accident - NOT used in comparative fault states BUT jury may consider such facts when apportioning fault

Answer 127

EE’s/joint venturer’s/co-partner’s contributory negligence will be imputed to ER/other joint venturer/other partners, barring latter from recovering for negligence from 3P --- Imputation does NOT apply 1. from spouse-to-spouse (unless based on wrongful death/loss of services/consortium) 2. from parent-to-child (unless based on wrongful death/loss of services/consortium) 3. btwn driver and passenger

Answer 128

In comparative fault states, P’s contributory negligence will generally not bar recovery but simply reduce amount P may recover

Answer 129

(also defense to reckless torts) 1. Modified (partial) comparative fault - (MAJORITY VIEW) - If P’s fault is greater than that of D (or all of D combined) = P is barred from recovering 2. Pure comparative fault - (DEFAULT rule for UBE) - P may recover regardless of percentage of his own fault

Answer 130

1. aka secondary implied assumption of risk 2. (similar to defense of consent in intentional torts) 3. If P is subjectively aware of risk and voluntarily proceeds in face of risk = P may not recover 4. Does NOT apply if - P had no reasonable alternatives (ex = P had no choice but to proceed) or - P was responding to an emergency (ex = rescuing a child)

Answer 131

``` = liability w/o fault Imposed 3 types of cases 1. Wild animals 2. Abnormally dangerous (ultrahazardous) activities 3. Products liability ```

Answer 132

Same 4 elements as negligence Except D has an absolute duty to make item/activity safe

Answer 133

Ex = tigers, venomous snakes, bears) D strictly liable for injuries caused by WILD or DANGEROUS animal --- Limitations - NORMALLY DANGEROUS PROPENSITY (alligator bite or tiger scratch NOT chlorine damage to clothes caused by splashing of pet shark) - Licensees and invitees (intentional trespassers must prove negligence - does NOT apply to ZOOS

Answer 134

(ex = dogs, cats, livestock) Strict Liability = POSSESSOR of domestic animal with KNOWN DANGEROUS PROPENSITY is strictly liable for harm done as result of that dangerous propensity - includes animals TRAINED TO BE VICIOUS (like guard dogs) --- Negligence = possessor may be liable for NEGLIGENCE if her maintenance of animal is UNREASONABLE

Answer 135

(ex = cattle, sheep, horses NOT cats and dogs) LANDOWNERS are strictly liable for damage done by trespass of their domestic animals

Answer 136

1. Implied assumption of risk = valid defense 2. ordinary contributory negligence = NOT a defense 3. also? many states apply comparative fault principles to strict liability cases

Answer 137

1. manufacturing, using, or storing EXPLOSIVES 2. crop dusting 3. FUMIGATING 4. operating NUCLEAR REACTORS 5. manufacturing, using or storing TOXIC CHEMICALS or HAZARDOUS (and probably flammable) materials

Answer 138

D’s conduct is irrelevant - Aka if D is involved in an abnormally dangerous activity and p is injured as a natural consequence of that activity = D is strictly liable BUT injury must be caused by the normally dangerous propensity of the activity (ex = explosives manufacturer is not strictly liable for normal truck accidents that do not involve explosions)

Answer 139

1. Implied assumption of the risk = valid defense 2. Ordinary contributory negligence = not a defense 3. also? many state apply comparative fault principles to strict liability cases

Answer 140

1. Negligence 2. Strict liability 3. Warranty liability

Answer 141

1. Defective design - BUT D is not liable in some states if the best scientific evidence at the time of MANUFACTURE could not have foreseen the danger 2. Defective manufacture 3. Failure to warn (or inadequate warnings) - Aka informational defect Cause-in-fact = for failure-to-warn claims, P must show that she wouldn’t have used the product had the warning been adequate

Answer 142

Jury may infer that product was defective at time of sale if accident was of a kind that ordinarily occurs as a result of a defect and no other cause was identified

Answer 143

``` = anyone who negligently Designs Manufactures Inspects A product may be sued for negligence NOTE = P must prove 4 elements of negligence ```

Answer 144

MANUFACTURERS may generally be sued if finished product or any component therein is defective due to manufacturer’s negligence OTHERS generally wholesalers and retailers may not be sued for negligent products liability b/c they rarely commit negligent acts in design, manufacture, or inspection of product, or in the provision of adequate warnings, not liable for negligence TEST TIP unless a Q’s facts clearly provide that wholesaler or retailer committed a negligent act (ex = negligently modifying a product, failing to detect an obvious defect, or selling a product with actual knowledge of the defect)

Answer 145

Does not absolve a manufacturer of liability

Answer 146

No privity requirement for negligence = any foreseeable P may sue Includes purchasers of the product, family members, guests, even bystanders

Answer 147

Traditional negligence defenses apply to negligent products liability claims

Answer 148

liability imposed where DEFECTIVE condition of product renders it UNREASONABLE DANGEROUS BUT no strict liability (but possibly negligence liability) if the product is used as a minor part of a service (ex = blood in an operation) NOTE = where it is feasible to make a dangerous product safe, warnings of danger will NOT suffice

Answer 149

1. Any "commercial" supplier, including manufacturer, wholesaler, retailer of new or reconditioned/rebuilt/re-manufactured goods or components and commercial lessors 2. BUT NOT non-commercial suppliers (ex = consumer selling in a garage sale or an auctioneer) 3. To be held liable, product must have been in an unreasonably dangerous condition when it left the control of D (in other words, dangerous condition did not occur as result of a subsequent alteration) 4. A product will be presumed to have been defective when it left each D’s control if it moved in the normal chain of commerce 5. If a retailer or wholesaler is held liable, that person will generally have a claim for indemnity against the manufacturer

Answer 150

no real privity requirement for strict products liability = any foreseeable P may sue includes purchasers of product, family members, guests, and even bystanders

Answer 151

1. Misuse = not a defense UNLESS misuse was unforeseeable/unreasonable (in restatement third of torts, unreasonable misuse is a still a complete bar to recovery) 2. Implied assumption of the risk = valid defense BUT ordinary contributory negligence is not 3. Comparative fault (recent trend) = many jurisdictions use where jury apportions responsibility for D’s defective product, P’s assumption of the risk, and P’s reasonable misuse

Answer 152

1. governed by UCC 2. D may also be held strictly liable for breach of express/implied warranty 3. require HORIZONTAL PRIVITY between P and D (no bystander liability) and PRE-SUIT NOTICE of the claim 4. if P seeks ONLY direct economic loss (loss of value to goods themselves) or consequential economic loss (like lost profits), P must sue under contract law (breach of warranty) NOT tort law

Answer 153

1. Respondeat superior (employer-employee) 2. Officers and Directors of a corporation (if the tort is committed in the scope of the corporation’s business) 3. Partners (if the tort is committed in the scope of the partnership’s business) 4. Joint Venturers (if the tort is committed in furtherance of the joint venture)

Answer 154

1. Car owner-driver 2. Parent-child 3. Independent contractor-principal 4. Bailor-bailee

Answer 155

1. ER is responsible for the torts of its EEs that occur within the scope of employment relationship 2. As a general rule, ER is not vicariously liable for intentional torts of its EEs, unless such torts were committed in furtherance of the ER’s business (ex = a bouncer, security guard, bill collector, repo man). 3. In some jurisdictions, ER is vicariously liable for intentional torts of its EEs, unless such torts are "wholly unforeseeable and personal" or "so unusual or startling that it is unfair to hold ER liable" 4. An employer may be held DIRECTLY (not vicariously) liable for the intentional tort of an employee if the employer negligently hired, retained, or supervised the employee

Answer 156

ER is not liable for EE’s tort if tort occurs while EE is engaged in a FROLIC (= a major deviation from EE’s duties) BUT ER is liable if tort occurred during a DETOUR (= a minor deviation from EE’s duties)

Answer 157

Generally no vicarious liability BUT a car owner may be held liable for negligent entrustment (e.g., loaning car to intoxicated driver) Statutory Exceptions = 1. Family Car Doctrine (owner vicariously liable for household members using the car) or 2. Permissive Use Doctrine (owner vicariously liable for anyone using the car with permission)

Answer 158

Generally no vicarious liability BUT a parent may be held liable for negligent supervision of a child or for giving a dangerous object (a gun) to a child Statutory Exception = in some states, parents are liable for the intentional torts of their children up to certain dollar amounts

Answer 159

Generally no vicarious liability Exceptions = a principal is vicariously liable if the independent contractor is engaged 1. in an ultrahazardous activity on behalf of the principal or 2. in a non-delegable duty of behalf of the principal (e.g., the duty of a landowner to business invitees to make the property safe, the duty of a landowner to avoid the creation of a nuisance, the duty of a landowner not to remove lateral support from neighbors, or the duty not to breach the peace during the repossession of a vehicle)

Answer 160

Generally no vicarious liability BUT bailor may be held liable for negligent entrustment

Answer 161

If negligent acts of 2+ persons contributed to an indivisible injury in P (or if 2 Ds acted in concert to cause a divisible or indivisible injury) = all such persons are jointly and severally liable Joint and several liability is the DEFAULT RULE on the UBE (by statute or sometimes common law, many states have abolished or limited application of joint and several liability, but varies significantly from state to state = no majority view)

Answer 162

If one of Ds pays all of P’s damages (or more than his or her share of the plaintiff’s damages), that D may seek contribution from the other Ds Ds who commit intentional torts are not entitled to contribution In comparative contribution jurisdictions (which include most comparative fault states), contribution is apportioned based on fault Comparative contribution is the majority and Restatement view

Answer 163

= D who is only secondarily liable may recover entire amount she paid to P from a D who was primarily responsible for P’s injury The most common indemnity situations are 1. an employer recovering from an employee (after the employer paid a respondeat superior judgment); and 2. a retailer or wholesaler recovering from a manufacturer (after the retailer or wholesaler paid a products liability judgment)

Torts Flashcards

(189 cards)