Torts Flashcards

Question

Instances in which non-outrageous conduct can become outrageous [intentional torts]

Answer 1

Non-outrageous conduct may become outrageous if: 1. It is frequently repeated or done in public 2. The plaintiff is a child, elderly person, pregnant woman, or someone the defendant knowns is sensitive 3. The defendant is an inn-keeper or common carrier (bus, train, airplane) and the plaintiff is a guest passenger (in such cases, even gross insults suffice)

Answer 2

Examples: 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 3

Essay Point: For behavior that “nearly misses” qualifying as an assault, false imprisonment, defamation, or invasion of privacy, IIED is often used as a fallback on essay questions

Answer 4

In rare cases (Fallwell), the First Amendment may be a defense to IIED

Answer 5

Yes, under two circumstances: 1. If defendant injured the other person for the purpose of causing plaintiff emotional distress (IIED) 2. Plaintiff and the injured person are close relatives and plaintiff was present at the scene of the injury and plaintiff personally observed the event (IIED or NIED) - In some cases, the plaintiff must also prove that the defendant knew the plaintiff was present or acted with reckless disregard to plaintiff’s presence. In addition, some states allow recovery by persons who are not close relatives, but only if that person suffers physical consequences (e.g., a heart attack) from the distress - These actions are derivative; thus, if the injured party was at fault, the plaintiff may not recover (or the plaintiff may not recover the full amount of her damages)

Answer 6

1. Defendant acts intending (or with substantial certainty that it will occur) 2. Enter 3. Plaintiff’s land (surface and usable space above or below surface)

Answer 7

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 8

1. Defendant enters the land or wrongfully stays (or allows an item to stay) on the land 2. Defendant pushes or chases another on to the land 3. Defendant causes an object heavier than air to enter or cross the land - Smoke, noise, shockwave, and sound are insufficient (but see nuisance)

Answer 9

Trespass actions may be asserted by owners or occupiers (e.g., tenants) or even adverse possessors. In a lease, the right to sue for trespass belongs to the tenant; the landlord has standing to sue only for permanent damage to the property.

Answer 10

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

Answer 11

1. Defendant acts intending to (or with substantial certainty that it will occur) 2. Interfere with or damage plaintiff’s personal property 3. Causation 4. Damages (dispossession or injury): measure of damages is the fair rental value for any dispossession period or the cost of repair - This tort requires proof of actual damages

Answer 12

1. Defendant acts intending to (or with substantial certainty that it will occur) 2. The intent required is the intent to do the act, not the intent to damage or dispossess or steal 3. Mistake of ownership is not a defense

Answer 13

Applies to tangible property only (not land or services) Defendant’s wrongful possession or damage suffices Claims for trespass to chattels and conversion may be asserted by owners, lessees, or even adverse possessors of the property (but not thieves)

Answer 14

Elements: Same as trespass to chattels, except conversion applies if the interference or damage to personal property is serious

Answer 15

Damages: forced sale (defendant must pay the FMV of the property at time of conversion) 1. A plaintiff may also elect replevin, plus damages for dispossession 2. If the defendant borrows personal property without permission and the property is seriously damaged or destroyed (even if damage was caused by a third party), this is conversion 3. Difference between conversion and trespass to chattels: a question of degree - The greater the defendant’s bad faith (e.g., intent to steal) the more likely it will be conversion

Answer 16

1. Consent 2. Self-Defense, Defense of Others, and Defense of Property 3. Necessity

Answer 17

1. May be express (by words): “You may park on my land” 2. It may be implied (by conduct or custom) 3. Who may give consent? Only those with capacity; thus, no young kids, insane people, or drunks 4. Can the defendant exceed the scope of consent? Yes 5. Consent is an affirmative defense for all intentional torts, except battery (for which the plaintiff must prove lack of consent)

Answer 18

A participant in hockey impliedly consents to be checked, or a participant in a pickup basketball game impliedly consents to being pushed around a bit (but does not consent to an intentional punch in the face or stabbing) TEST for implied consent: would a reasonable person have expected this contact?

Answer 19

When are such defenses available? To use these defenses, defendant must reasonably believe that the tort is being committed or is about to be committed; the defendant does not have to be right, as long as his belief is reasonable Defendant may not retaliate or preempt (defense must be to prevent the tort); defendant may, however, pursue a thief in hot pursuit

Answer 20

1. How much force may be used? Defendant may use whatever force is reasonable under the circumstances, including deadly force, if the defendant or a third person is facing death or substantial bodily harm. 2. To protect property, the defendant may use any force not intended or likely to cause death or serious bodily injury (actual death or serious injury is not the test) 3. Spring guns, booby traps, land mines, etc. may not be used to protect property 4. For home invaders (e.g., burglars), use self-defense rules if the home is occupied, not defense of property rules (thus, deadly force may be used in the right circumstances) 5. Ordinarily, defendant must make a request for return of property before using force to get the property back, unless obviously futile 6. Force may not be used against someone with a claim of right (e.g., potential owner or lessee) to the property 7. If too much force is used, there is no defense

Answer 21

The defendant is never required to retreat before using non-deadly force. In most jurisdictions, the defendant is not required to retreat before using deadly force; in those jurisdictions requiring retreat before using deadly force, there is no duty to retreat (1) from the defendant’s own home or (2) if retreat cannot be done safely

Answer 22

If defendant acts in self-defense and an innocent party is injured, the defendant is excused for causing the injury unless he acted negligently

Answer 23

1. Public Necessity (a complete defense to property torts, usually trespass to land or conversion) 2. Private Necessity (an incomplete defense to property torts—trespass to land, conversion, or trespass to chattels) 3. Necessity supersedes Defense of Property: a person may not use force to defend property against someone he or she knows entered the property out of necessity

Answer 24

In such cases, the plaintiff has the burden of proving: 1. Defendant made a defamatory statement about plaintiff 2. Published by defendant to a third person who understands the statement and the language - Publication may be intentional or negligent 3. Damages

Answer 25

1. A statement is defamatory if it exposes the plaintiff to public hatred, contempt, scorn, shame, or ridicule 2. The statement must concern facts or opinions implying underlying facts (“A committed perjury in last week’s hearing”); pure opinions (“A is a very poor lawyer”) or name-calling (“A is a racist”) will not suffice 3. The plaintiff must show that a reasonable person would think that the statement concerns the plaintiff and would understand the defamatory nature of the statement, unless the defamatory nature of the statement is clear on its face (i.e., defamation per se) --- Hypothetical: “One of my neighbors likes to hit the bottle” - The plaintiff is not required to prove that anyone who heard the statement believed it to be true --- At common law, defamation was a strict liability tort; most states today require that the defendant was at least negligent

Answer 26

P has burden of proving damages; but damages are presumed for harm to the plaintiff’s reputation for: 1. All libel (written defamation, radio, TV, tape-recordings, most communications by computer) 2. Slander per se (oral defamation concerning - Plaintiff’s trade or profession - Accusing plaintiff of a serious crime - Alleging that plaintiff currently has loathsome disease (e.g., VD, Leprosy), or - Alleging that plaintiff is unchaste) 3. For all other slanders, plaintiff must prove actual money losses (e.g., lost job, lost customers) - If the plaintiff is able to prove actual money losses, the plaintiff may also obtain damages for reputational harm.

Answer 27

1. Consent (e.g., plaintiff consented to release of investigative report) 2. Truth (defendant must prove truth) 3. Absolute Privileges 4. Qualified (or Conditional) Privileges

Answer 28

Absolute Privileges: statements by federal or state legislators on the floor of the legislature or in committee sessions; statements by executive officials in the course of their duties; statements made in judicial proceedings by judges, jurors, attorneys, parties, and witnesses if in any way related to the proceeding; statements between spouses If an absolute privilege exists, defendant may not lose it, regardless of malice

Answer 29

Qualified (or Conditional) Privileges: answering requests for information from prospective employers (e.g., references) or credit agencies; reporting a crime to the police Defendant will lose a qualified privilege if he makes false statements intentionally, recklessly, maliciously, or over-publishes the statement

Answer 30

To prevail, a public official or figure must prove: 1. A defamatory statement about the plaintiff 2. Published by defendant (to a third person) 3. In addition, the plaintiff must prove the following two factors: - The statement is false (probably by clear and convincing evidence) - Actual Malice: The defendant made the statement knowing it was false or with reckless disregard for the truth—i.e., a subjective belief that it was false (by clear and convincing evidence)

Answer 31

A public official is an elected or appointed government official with substantial responsibility over government affairs (e.g., governor, state senator, mayor, police officer)

Answer 32

A public figure is someone who has general notoriety (e.g., Brad Pitt, Michael Jordan) or someone who has asserted herself into a controversy The spouse of a public figure is not automatically treated as a public figure

Answer 33

To prevail, the plaintiff must prove: 1. A defamatory statement about plaintiff 2. Published by defendant (to a third person) 3. In addition, the plaintiff must prove the following two factors (by a preponderance): - The statement is false - The defendant made the statement (at least) negligently 4. Plaintiff must also prove actual damages (but actual damages are not limited to out-of-pocket losses) 5. To recover presumed or punitive damages, plaintiff must prove that defendant made the statement knowing it was false or with reckless disregard for the truth (i.e., a subjective belief that it was false)

Answer 34

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

Answer 35

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

Answer 36

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 37

1. Misappropriation of Plaintiff’s Name or Likeness 2. Intrusion into Plaintiff’s Seclusion (her home, office, car) 3. Publication of Plaintiff in a (Highly Offensive) False Light 4. Public Disclosure (wide-spread) of Private Facts

Answer 38

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 the misappropriation - (i.e., 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 39

1. Intrusion into a private place, conversation, or matter and 2. In a manner that is highly offensive to a reasonable person

Answer 40

Examples where there is no liability: 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); most things in public are not going to be sufficient for intrusion (e.g., 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 (such as P’s underwear of lack thereof), that would give rise to an intrusion action

Answer 41

1. D gives publicity to a matter concerning P 2. Before the public 3. Portraying P in a false light 4. And it is highly offensive to a reasonable person 5. D had knowledge or acted with reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed - If the plaintiff is a public official or public figure, the plaintiff must satisfy the actual malice test to prevail on this tort

Answer 42

1. D publicly discloses (or “gives publicity to”) 2. A private fact, and 3. The disclosure is highly offensive to a reasonable person and 4. It is of no legitimate public concern

Answer 43

There is an absolute privilege for publishing matters in the public record (e.g., name of rape victim)

Answer 44

1. Defendant made a statement of material fact (not opinion) 2. Knowing it was false or with reckless disregard for the truth 3. Intending for plaintiff to rely on the statement 4. Plaintiff justifiably relied on the statement (NOTE: the plaintiff has no duty to investigate the truth of the defendant’s statement, unless it is obviously false), and 5. Such reliance caused plaintiff to suffer actual pecuniary loss (NOT: the plaintiff may not recover for emotional harm)

Answer 45

Most jurisdictions require plaintiffs to prove intentional misrepresentation by clear and convincing evidence

Answer 46

A defendant who is in the business of supplying information for the guidance of others in business transactions (e.g., an accountant or surveyor) may be held liable for negligent misrepresentations.

Answer 47

Strict Privity: The defendant owes a duty only to those person to whom the representation was made and to those persons the defendant actually knew would rely on it in their business transactions.

Answer 48

Damages: A plaintiff is generally limited to “reliance” damages for negligent misrepresentation. The plaintiff must suffer actual pecuniary loss; the plaintiff may not recover for emotional harm.

Answer 49

Defenses: Contributory negligence (e.g., an unreasonable failure to investigate) is a defense to negligent misrepresentation.

Answer 50

A public nuisance is an act by defendant on her land that unreasonably interferes with the health or safety of the community at large, including such things as toxic waste or operating an illegal business (e.g., gambling, prostitution, drugs) Standing: an individual may bring suit for damages and/or to enjoin a public nuisance only if he or she has suffered some unique injury (different than that of the general public); otherwise, such suits must be brought by the attorney general or district attorney

Answer 51

A private nuisance occurs if the defendant is using her land in such a way that casues substantial and unreasonable interference with the plaintiff’s land (e.g., smoke, odors, sounds, shockwaves, unsightly objects or conditions)

Answer 52

If there is substantial interference (i.e., an interference that is offensive, inconvenient, or annoying to an average person in the community), the court will balance the equities of defendant’s use against the interference to plaintiff’s use, and may award damages, a partial or complete injunction, a forced purchase of plaintiff’s property, or nothing at all Exception: if the defendant has willfully (i.e., spitefully) created the nuisance, the court will not balance the equities, but rather will rule against the defendant

Answer 53

The plaintiff is super-sensitive (e.g., extreme concern with noise); in other words, the interference would not bother an average person in the community P came to the nuisance; not a bar to P’s recovery, but is a relevant factor for the court

Answer 54

Prima Facie Case: There are four elements to a prima facie case of negligence: duty, breach, causation, and damages. The duty element = question of law for court; remaining elements = questions fact for the jury. Approximately 50% of the torts questions on the MBE are based on negligence.

Answer 55

1. A foreseeable plaintiff: in negligence actions, the defendant owes a duty of care only to “foreseeable” plaintiffs; virtually all plaintiffs are foreseeable, so this issue is rarely tested; if it is tested, it will be done using the Palsgraf facts (or facts quite similar thereto) 2. Standard of Care: If the plaintiff is foreseeable (which will almost always be true), then defendant owes plaintiff a duty of care. The type of duty depends on the defendant’s status (and, in some cases, the plaintiff’s status)

Answer 56

The Palsgraf case involved a negligent act committed on plaintiff no. 1 (who was clearly foreseeable) that injured plaintiff no. 2 (whose foreseeability was debatable); the two tests that were used in that case were: 1. The Cardozo Test (majority view today): under such facts, the defendant is liable to plaintiff no. 2 only if plaintiff no. 2 is in the “zone of danger” of (i.e., very near) defendant’s negligent conduct 2. The Andrews Test: for all practical purposes, Andrews held that if the defendant owes a duty of care to plaintiff no. 1 he also owes a duty of care to plaintiff no. 2

Answer 57

Firefighter’s Rule: As a general rule, a firefighter, police officer, or other emergency professional may not hold a person (including a property owner) liable for injuries suffered by the professional in responding to a situation created or caused by the ordinary negligence of such person.

Answer 58

Under the majority view, a defendant owes no duty to the plaintiff to avoid creating unreasonable risks of harm for injuries that are inherent in sports and recreational activities.

Answer 59

Ordinary, prudent person of average experience and intelligence under the same or similar circumstances (an objective standard); in an emergency situation, the standard is a Reasonable Person (not lower)

Answer 60

A D with physical disabilities must act like a reasonable person with the same or similar disabilities (e.g., a reasonable blind person would not drive a car); but a D who is mentally disabled, intoxicated or inexperienced must act like an ordinary reasonable person If the D has particular expertise, the D may be held to a higher standard (e.g., race car driver)

Answer 61

Incapable of committing negligence but note: liable for intentional torts

Answer 62

A child of like age, education, intelligence, and experience (a somewhat subjective standard) A child will be held to the reasonable person standard if the child is performing an adult activity (e.g., using an adult motorized vehicle)

Answer 63

The skill and knowledge of a member in good standing in the profession Ordinarily, an expert witness must testify as to the appropriate standard of care and whether that standard was breached, unless the breach is a matter of common sense --- NOTE: If the D is a specialist (e.g., board-certified) or expert (or holding herself out as such), D will be held to a higher standard (which is national in scope)

Answer 64

Liable for slight negligence but only as to passengers/guests

Answer 65

Reasonable Person Standard A few states have statutes (“guest statutes”) that hold drivers liable only for willful and wanton conduct if the plaintiff if a nonpaying passenger

Answer 66

3. Issues in Standard of Care and Land a. : a. D must act like a reasonable person to protect those not on D’s land from (a) activities on the land, (b) overhanging tress in urban areas, and (c) dangerous artificial conditions near the border of the land.

Answer 67

D owes no duty to undiscovered trespassers for activities or static conditions on the land, until such trespassers are discovered. Exception: the D is liable to undiscovered trespasser for intentional torts and reckless (willful and wanton) misconduct

Answer 68

Activity on land: D owes a duty to act like a reasonable person Static Condition on land (e.g., an uncovered well, a concealed hole, a high-voltage electric fence): D owes a duty to warn of concealed, known, artificial (i.e., man-made) conditions that pose a risk of death or serious bodily injury; there is no duty to warn of obvious dangers (i.e., those not concealed)

Answer 69

Activity on land: D owes a duty to act like a reasonable person Static Condition on land: D has a duty to warn of concealed, known, dangerous (natural and artificial) conditions; there is no duty to warn of obvious dangers (i.e., those not concealed) and there is no duty to inspect the property for dangerous conditions

Answer 70

Activity on land: D owes a duty to at like a reasonable person Static Condition on land: D has a duty to warn of (or preferably make safe) concealed, dangerous conditions known to D or should have been known (i.e., D has a duty to make reasonable inspections); there is no duty to warn of obvious dangers (i.e., those not concealed) Trend: Many states apply this standard to both licensees and business invitees If the plaintiff goes into an area not intended for customers (e.g., a room labeled “for employees only”), P will revert to a licensee or trespasser

Answer 71

Infant may recover for injuries if she can show 1. Owner knew or had reason to know children were likely to trespass; 2. Owner knew the artificial condition posed an unreasonable risk to children; 3. Because of her age, infant did not realize the danger; 4. The cost of remedying the danger was slight compared to the risk; and 5. Owner failed to exercise reasonable care. NOTE: The owner must take reasonable measures to protect children; there is no requirement to make the premises “child-proof.”

Answer 72

Negligence Per Se: If a criminal statute (or ordinance or traffic regulation) is quoted in a torts question, ask: Does the statute establish the standard of care? This requires: (i) that the statute was designed to protect against this type of harm; and (ii) that the P is within the class protected by the statute If this showing is made, the statute (and the D’s failure to comply therewith) constitutes negligence per se and is conclusive proof of duty and breach (but not causation or damages) In addition, if the P is within the class protected by the statute (e.g., children in a school zone), the P’s contributory negligence will not bar recovery.

Answer 73

There are some circumstances where the D’s failure to comply with a statute will be excused: (i) where compliance would be more dangerous; (ii) where compliance is beyond the D’s control (e.g., D has a heart attack while driving); (iii) where the violation is reasonable in light of the D’s young age or physical disability.

Answer 74

If Negligence Per Se is unsuccessful or excused, the P may rely on an ordinary negligence claim.

Answer 75

Also, compliance with the law is evidence that the D met the standard of care, but is not conclusive.

Answer 76

For a P to recover for NIED, the P must show: 1. Emotional distress that resulted in physical injury (i.e., physical consequences, such as a nervous breakdown, miscarriage, paralysis, heart attack, etc.) 2. Physical injury is not required for (a) the negligent handling of a relative’s corpse or (b) the erroneous reporting of a close relative’s death 3. P was in the target zone of D’s negligence (i.e., there is no requirement that D make physical contact with P, but here must be at least a near miss) or there was a negligent diagnosis from a medical professional 4. A minority of states apply regular negligence standards to NIED (e.g., foreseeability)

Answer 77

If the P suffered from actual physical injuries from contact with the D, she may always seek damages for emotional distress as part of that claim (i.e., “parasitic emotional distress damages”)

Answer 78

Whether the D breached the applicable standard of care is a fact question. If the D failed to meet the applicable standard of care, there is a breach. By contrast, if the D met the applicable standard of care, there is no breach.

Answer 79

Compliance with or failure to meet an industry custom is admissible as evidence, but is not conclusive. Exception: In medical malpractice cases, the D’s compliance with established medical customs is often dispositive (i.e., there is no breach)

Answer 80

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

Answer 81

RIL applies where (1) the accident that injured the P is of a type that does not generally occur without negligence; (2) the D had exclusive control over the instrumentality or condition that caused the injury; and (3) there is no evidence that the P was contributorily negligent. Element (3) is generally not required in states that use comparative fault.

Answer 82

Effect: If these conditions exist, a “permissible inference” of negligence will result, allowing the P to survive a motion for summary judgment or a motion for directed verdict (aka motion for judgment as a matter of law) and permitting, but not requiring, the jury to rule in favor of the P.

Answer 83

Causation: There are two types of causation, both of which must exist for the P to prevail. First, the P must show causation-in-fact (aka actual or factual causation). If (and only if) that can be shown, the P must then prove proximate (or legal) causation (aka scope of liability).

Answer 84

“But for” test. This test requires that, “but for the D’s negligent act, the P would not have been injured.” The “but for” test applies any time there is only one tortfeasor. The “but for” test also applies where the negligent acts of two or more tortfeasors—each of which alone would not have caused the injury—combined to cause it; in such cases, each tortfeasor’s negligent act is a “but for” cause.

Answer 85

Substantial Factor Test (aka Independent Concurrent Causation). If two or more tortfeasors commit negligent acts and either act alone would have been enough to cause the same indivisible injury to P, both are jointly and severally liable for the damage.

Answer 86

Alternative Liability Test (Summers v. Tice). If two or more D’s commit negligent acts and only one act caused P’s injury, but P does not know which one, the court will shift the burden of proving causation to the D’s and, if they are unable to prove who caused the accident, they will be held jointly and severally liable.

Answer 87

Even if D’s negligent act is the actual cause of P’s injury, the D will not be held liable unless his negligent act is also the proximate cause of such injury. Under the doctrine of proximate causation, a D is liable only if the type of harm that occurs was a foreseeable risk of the D’s negligent act. In a typical tort case, the type of harm is usually foreseeable (and thus the D will be the proximate cause).

Answer 88

For UBE purposes, proximate cause will be lacking only: (1) where the chain of events leading from the D’s negligent act and the P’s injury is bizarre or unbelievable or (2) where an unforeseeable affirmative act of a third person or an unforeseeable act of God intervenes between the D’s negligent act and the P’s injury. Not all intervening acts, however, will break the chain leading from D’s negligent act to P’s injury; only unforeseeable intervening acts (known as superseding acts) will break the chain.

Answer 89

Determining what acts are foreseeable is a question of fact, but some intervening acts are generally considered foreseeable: 1. Ordinary negligence of medical personnel that aggravates plaintiff’s injuries 2. Infections or diseases resulting from the injuries caused by the defendant 3. Injuries or property damage caused by the negligence of rescuers (injuries may be suffered by the rescuer, the plaintiff, or a third party) 4. Injuries or property damage resulting from an attempt to escape by the plaintiff (injuries may be suffered by the plaintiff or a third party) 5. Subsequent accidents resulting from original injuries

Answer 90

The following acts are generally considered unforeseeable (unless the facts indicate they were foreseeable by the defendant in this particular case, such as warnings of floods or tornados or a high crime area): 1. Criminal acts of third parties (unless defendant’s negligence increased the risk of such criminal acts) - Example: A landlord who negligently fails to install proper locks on the entrance to an apartment building located in a high crime neighborhood is liable to a tenant attacked in the hallway of the building. 2. Intentional torts or grossly negligent torts of third parties 3. Acts of God (e.g., lightning strikes, tornadoes, floods)

Answer 91

Negligence requires proof of actual damages. The goal of tort damages is to make the plaintiff whole; that is, to return plaintiff to the position she was in prior to the tort. Compensatory damages must be proved with reasonable certainty.

Answer 92

Negligence law recognizes the egg-shell plaintiff. To be held liable, a defendant must foresee the type of injury, but is not required to foresee the extent of the injury. According to § 31 of the Restatement (Third) of Torts, the egg-shell plaintiff rule applies to all forms of tortious conduct, whether accidental or intentional.

Answer 93

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

Answer 94

The plaintiff must take reasonable steps to mitigate damages (e.g., plaintiff must seek medical treatment for injuries); the defendant is not liable for avoidable damages.

Answer 95

(Majority View). Under this rule, benefits the plaintiff receives from her employer, health insurance, disability insurance, or the government are not deducted from the plaintiff’s award of damages.

Answer 96

Punitive damages are not awarded in negligence cases, unless the defendant acted wantonly, willfully, maliciously, or recklessly (e.g., drunk driving). In many states, the conduct justifying punitive damages must be proved by clear and convincing evidence. In addition, many states have statutory caps on punitive damages and require that they be proved in a bifurcated trial.

Answer 97

There are three defenses to negligence (these defenses do not apply to intentional torts). 1. Contributory negligence 2. Comparative fault 3. Implied assumption of the risk

Answer 98

Contributory Negligence: in jurisdictions that still use common law contributory negligence (AL, DC, MD, NC, VA), if the plaintiff’s negligence contributed in any way (even 1%) to her injuries, the plaintiff is barred from recovering. Because of the harshness of contributory negligence, there are several “exceptions” to the defense.

Answer 99

Reckless Torts: Contributory negligence is not a defense to reckless torts.

Answer 100

Last Clear Chance: The plaintiff’s contributory negligence will not bar recovery if the defendant had the last clear chance of preventing the accident. The last clear chance doctrine is not used in comparative fault states, but the jury may consider such facts when apportioning fault.

Answer 101

Imputed Contributory Negligence: An employee’s or joint venturer’s or co-partner’s contributory negligence will be imputed to the employer, other joint venturer, or other partners, barring the latter from recovering for negligence from a third party. Imputation does not apply, however, from spouse-to-spouse or parent-to-child (unless such claims are based on wrongful death or loss of services/consortium), and it also does not apply between driver and passenger.

Answer 102

In comparative fault states, the plaintiff’s contributory negligence will generally not bar recovery, but simply reduce the amount plaintiff may recover. There are two types of comparative fault (which is also a defense to reckless torts): Modified (Partial) Comparative Fault (Majority View): If plaintiff’s fault is greater than that of the defendant (or all of the defendants combined), the plaintiff is barred from recovering. Pure Comparative Fault (the default rule for the UBE): Plaintiff may recover regardless of the percentage of his own fault.

Answer 103

If the plaintiff is subjectively aware of a risk and voluntarily proceeds in the face of the risk, the plaintiff may not recover. Implied assumption of the risk is similar to the defense of “consent” in intentional torts. Implied assumption of the risk is used as a bar to recovery only in contributory negligence states; in comparative fault states such conduct may be considered by the jury when apportioning damages. All states recognizes express assumption of the risk (e.g., an exculpatory clause or release) as a defense; the enforceability of such clauses or releases is a matter of contract law and public policy. Implied assumption of the risk does not apply if the plaintiff had no reasonable alternatives (e.g., plaintiff had no choice but to proceed) or the plaintiff was responding to an emergency (e.g., rescuing a child).

Answer 104

Strict Liability means liability without fault. It is imposed in three types of cases: wild animals, abnormally dangerous (ultrahazardous) activities, and products liability. Strict liability requires the same four elements as negligence, except the defendant has an absolute “duty” to make the item or activity safe.

Answer 105

Wild Animals (e.g., tigers, venomous snakes, bears). The defendant is strictly liable for injuries caused by his or her wild or dangerous animals. This liability is limited to the normally dangerous propensity of the wild animal (a bite by an alligator or a scratch by a tiger, but not chlorine damage to clothes caused by the splashing of a pet shark). Strict liability for dangerous animals is limited to licensees and invitees. Intentional trespassers (e.g., those who ignore “no trespassing” signs) must prove negligence. Strict liability also does not apply to zoos.

Answer 106

Strict Liability: The possessor of a domestic animal with a known dangerous propensity (e.g., biting) is strictly liable for harm done as a result of that dangerous propensity. This includes animals trained to be vicious (e.g., guard dogs). Negligence: If the domestic animal has no known dangerous propensities and has not been trained to be vicious, there is no strict liability but the possessor may be liable for negligence if her maintenance of the animal is unreasonable.

Answer 107

Livestock (e.g., cattle, sheep, horses, but not cats and dogs). Landowners are strictly liable for damage done by the trespass of their domestic animals.

Answer 108

Implied assumption of the risk is a defense to strict liability, but ordinary contributory negligence is not. Many states apply comparative fault principles to strict liability cases.

Answer 109

Examples of such activities: manufacturing, using or storing explosives; crop dusting; fumigating; operating nuclear reactors; manufacturing using or storing toxic chemicals or hazardous (and probably flammable) materials.

Answer 110

Culpability. Defendant’s conduct is irrelevant; in other words, if a defendant is involved in an abnormally dangerous activity and the plaintiff is injured as a natural consequence of that activity (e.g., blasting damage or irradiation), the defendant is strictly liable. The injury must, however, be caused by the normally dangerous propensity of the activity; in other words, an explosives manufacturer is not strictly liable for normal truck accidents that do not involve explosions.

Answer 111

Implied assumption of the risk is a defense to strict liability, but ordinary contributory negligence is not. Many states apply comparative fault principles to strict liability cases.

Answer 112

There are three types of products liability claims: negligence, strict liability, and warranty liability. Products liability claims may be based on: 1. Defective Design: For defective design claims, the defendant 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, and/or 3. Failure to warn or inadequate warnings (aka informational defect) - Cause-in-Fact: for failure to warn claims, the plaintiff must show that she would not have used the product had the warning been adequate.

Answer 113

Res Ipsa Loquitur. A jury may infer that a product was defective at the time of sale if the accident was of a kind that ordinarily occurs as a result of a defect and no other cause was identified.

Answer 114

Negligent Products Liability. Anyone who negligently designs, manufactures, or inspects a product, or negligently fails to provide adequate warnings, may be sued for negligence. In a negligence products liability case, the plaintiff must prove the four elements of negligence.

Answer 115

1. Manufacturers: Manufacturers of produces may generally be sued for negligent products liability if the finished product or any component therein is defective due to the manufacturer’s negligence. 2. Others: As a general rule, wholesalers and retailers may not be sued for negligent products liability because they rarely commit negligent acts in the design, manufacture, or inspection of a product, or in the provision of adequate warnings. Thus, unless the facts of a question clearly provide that a wholesaler or retailer committed a negligent act (e.g., negligently modifying a product, failing to detect and obvious defect, or selling a product with actual knowledge of the defect), those parties are not liable for negligence.

Answer 116

A negligent inspection by a retailer does not absolve a manufacturer of liability.

Answer 117

Who may be a plaintiff? There is no real privity requirement for negligence actions; any foreseeable plaintiff may sue. This includes purchasers of the product, family members, guests, and even bystanders.

Answer 118

The traditional negligence defenses apply to negligent products liability claims.

Answer 119

This liability is imposed where a “defective” condition of a product renders it “unreasonably dangerous.”

Answer 120

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

Answer 121

There is no real privity requirement for strict products liability; any foreseeable plaintiff may sue. This includes purchasers of the product, family members, guests, and even bystanders.

Answer 122

There is no strict liability (but possibly negligence liability) if the product is used as a minor part of a service (e.g., blood in an operation).

Answer 123

Where it is feasible to make a dangerous product safe, warnings of danger will not suffice.

Answer 124

1. Misuse. Misuse of a product is not a defense unless the misuse was unforeseeable or unreasonable. 2. Implied Assumption of the Risk. Implied assumption of the risk is a defense to strict liability, but ordinary contributory negligence is not. 3. Trend. Many jurisdictions use comparative fault in strict products liability cases, where the jury apportions responsibility for the defendant’s defective product, the plaintiff’s assumption of the risk, and the plaintiff’s reasonable misuse. - According to the Restatement (Third) of Torts, “unreasonable misuse” is still a complete bar to recovery

Answer 125

A defendant may also be held strictly liable for breach of an express or implied warranty (e.g., the implied warranty of merchantability or the implied warranty of fitness for a particular purpose). Warranty liability is governed by the U.C.C. Warranty claims require horizontal privity between the plaintiff and defendant (e.g., no bystander liability) and pre-suit notice of the claim. In most states, if the plaintiff seeks only direct economic loss (i.e., loss of value to the goods themselves) or consequential economic loss (e.g., lost profits), the plaintiff must sue under contract law (i.e., breach of warranty).

Answer 126

There are some situations where one person is strictly liable for the torts of another person, regardless of fault (the person who actually committed the tort would also be liable). Vicarious liability exists in the following cases: 1. Respondeat superior 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 127

An employer is responsible for the torts of its employees that occur within the scope of the employment relationship.

Answer 128

As a general rule, an employer is not vicariously liable for the intentional torts of its employees, unless such torts were committed in the furtherance of the employer’s business (e.g., a bouncer, security guard, bill collector, repo man). In some jurisdictions, an employer is vicariously liable for the intentional torts of its employees, unless such torts are “wholly unforeseeable and personal” or “so unusual or startling that it’s unfair to hold the employer liable.” An employer might be held directly (not vicariously) liable for the intentional tort of an employee if the employer negligently hired, retained, or supervised the employee.

Answer 129

In addition, an employer is not liable for an employee’s tort if the tort occurs while the employee is engaged in a frolic (e.g., a major deviation from employee’s duties), but the employer is liable if the tort occurred during a detour (e.g., a minor deviation from employee’s duties).

Answer 130

1. Car owner – driver 2. Parent – Child 3. Independent Contractor – Principal 4. Bailor – Bailee 5. But the bailor may be held liable for negligent entrustment.

Answer 131

A car owner may be held liable for negligent entrustment (e.g., loaning car to intoxicated driver). b. Statutory Exceptions: Family Car Doctrine (owner vicariously liable for household members using the car) or Permissive Use Doctrine (owner vicariously liable for anyone using the car with permission).

Answer 132

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 133

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 on 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 134

If the negligent acts of two or more persons contributed to an indivisible injury in the plaintiff (or if two defendants 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.

Answer 135

By statute (or sometimes common law), many states have abolished or limited the application of joint and several liability. These statutes vary significantly from state to state; thus, there is no majority view on this topic.

Answer 136

If one of the defendants pays all of the plaintiff’s damages (or more than his or her share of the plaintiff’s damages), that defendant may seek contribution from the other defendants. Defendants who commit intentional torts are not entitled to contribution. Comparative contribution is the majority and Restatement view.

Answer 137

In some cases, a defendant who is only secondarily liable may recover the entire amount that he or she paid to the plaintiff from a defendant who was primarily responsible for plaintiff’s injury. The most common indemnity situations are (i) an employer recovering from an employee (after the employer paid a respondeat superior judgment); and (ii) a retailer or wholesaler recovering from a manufacturer (after the retailer or wholesaler paid a products liability judgment).

Answer 138

In comparative contribution jurisdictions (which include most comparative fault states), contribution is apportioned based on fault.

Torts Flashcards

(162 cards)