Torts

Question 1

Intentional Torts: Prima Facie Case

Answer 1

1. Act by D - requires some volitional movement
2. Intent - specific or general. Specific - intent to bring about a specific harm. General - substantial certainty that tortious conducts will result from D’s act
3. Causation - substantial factor. D’s conduct must be a substantial factor in bringing about the resulting harm.

Question 2

Transferred Intent Doctrine

Answer 2

Arises when D acts with the intent to commit a given tort but:

a) commits it against a different person than intended
b) commits a different tort than intended
c) both a) and b)

D’s original intent transfers to the tort actually committed and/or person actually harmed, resulting in D’s liability

Applies to:

1. Assault
2. Battery
3. False imprisonment
4. Trespass to chattels/land

Question 3

Assault

Answer 3

An intentional act by D creating P’s reasonable apprehension of immediate harmful or offensive contact to P’s person. Also considered an attempted battery.

Elements:

1. Act by D that creates a reasonable apprehension in P. “Reasonable apprehension” = P has knowledge of D’s act and an expectation that it will result in immediate harmful or offensive contact to P’s person. Apprehension must be reasonable.
2. Of immediate harmful or offensive contact to pP’s person. Words or threats of future battery are usually insufficient, unless coupled with some overt act.
3. Intent
4. Causation

Question 4

Battery

Answer 4

An intentional harmful or offensive contact to P’s person by D.

Elements:

1. Harmful or offensive contact by D. Reasonable person standard.
2. To P’s person. Includes anything connected to P’s person.
3. Intent
4. Causation. Indirect contact is sufficient.

Question 5

False imprisonment

Answer 5

An act or failure to act by D resulting in P’s restraint or confinement to a bounded area

Elements:

1. Act (or omission) resultin gin P’s restraint or confinement. Restraint does not have to be physical. DUration is not important, brief confinement will suffice.
2. P is confined to a bounded area. P must be aware of or harmed by teh confinement. P’s freedom of movement must be limited. There must be no reasonable means of escape that P is aware of.
3. Intent
4. Causation

Shopkeeper’s privilege

Question 6

Shopkeeper’s privilege

Answer 6

Store may detain suspected thief if:

1. Store has reasonable cause to believe a theft occurred
2. Store detains suspect for only a reasonable period and for purposes of investigation
3. Detention must be reasonable; only non-deadly force allowed. Shopkeeper may be held liable for any harm caused by acts exceeding the privilege

Question 7

Trespass to land

Answer 7

A physical invasion of P’s real property by D.

Elements:

1. Physical invasion of P’s real property bo D.
2. Intent. D does not need to know the land belongs to another
3. Causation.

Note: damages not required; compare to trespass to chattel and conversion

Question 8

Conversion

Answer 8

Elements:

1. D significantly interferes with P’s right of possession that justifies D paying the chattel’s full value. A longer and/or more damaging use of P’s chattel gives rise to conversion.
2. Intent
3. Causation
4. Damages - P can revover full market value at the time of conversion or repossess the chattel (replevin)

Question 9

Trespass to chattels

Answer 9

Elements:

1. D interferes with P’s right of possession in tangible personal property. Trespass = minor interference or damage.
2. Intent
3. Causation
4. Damages. P can recover cost of repair or rental value of chattel.

Question 10

Consent

Answer 10

A defense to all intentional torts

• If P consents to D’s otherwise tortious conduct, D is not liable for that act.
• Capacity required.

Express consent: P gives D verbal or written consent. Nullified by duress, fraud, or mistake.

Implied consent: D can reasonably infer P’s consent based on custom or P’s observable conduct. Facts must indicate that based on P’s objective conduct, D was reasonable in interpreting P’s consent

Scope of consent
- D can be held liable for conduct that exceeds the scope of P’s valid consent (express or implied)

Question 11

Necessity

Answer 11

Defense to torts against property in which D damages P’s property in an effort to avoid a greater danger

Requirements:

1. D’s interference with P’s property must be reasonably necessary to avoid an immediate threatened injury
2. Threatened injury must be more serious than the interference undertaken to avert it

Public necessity - absolute defense

• D’s invasion of P’s property must be reasonably necessary to protect the community or a large group of people.
• Absolute defense - P cannot recover any damages

Private necessity - limited defense

• D invades P’s property to protect an individual or small group.
• Limited defense - P can recover actual damages, but not punitive or nominal damages, unless D’s act benefitted P.

Question 12

Recapture of chattels

Answer 12

A defense to trespass; D may use peaceful means to recover possession of chattel taken unlawfully. Can use reasonable force, but cannot use deadly force or force sufficient to cause serious harm.

Question 13

Misappropriation

Answer 13

Invasion of privacy tort. Use of P’s name or likeness for commercial purposes without P’s consent.

Newsworthiness exception - no liability for use of P’s name or likeness for the purpose of reporting news

Question 14

False light

Answer 14

Invasion of privacy tort. Widespread publication of a falsehood or material misrepresentation about P that would be highly offensive to a reasonable person.

• Includes mischaracterization of P’s views or conduct
• Matters of public concern - D must have actual malice or reckless disregard for the truth of the matter publicized
• No newsworthiness exception

Question 15

Intrusion upon Seclusion

Answer 15

Invasion of privacy torts. Intrusion upon P’s private affairs in a matter that would be highly offensive to a reasonable person.

Requirements:

1) P must have a reasonable expectation of privacy. No reasonable expectation of privacy in public.
2) Intrusion must be highly offensive.

No newsworthiness exception

Question 16

Disclosure

Answer 16

Public disclosure of P’s private information.

Requirements - disclosure must be:

1) highly offensive to a reasonable person. Public activities are not objectionable.
2) publicized - made available to a public audience.

Newsowrthiness exception - no liability if private facts are newsworthy

Question 17

Malicious prosecution

Answer 17

Arises when D initiates a frivolous charge or claim against P with an improper purpose.

Elements:

1) D commenced a prior criminal or civil legal proceeding against P. Note: prosecutors are immune.
2) Proceeding terminated in P’s favor
3) No probable cause for the original proceeding.
4) D had an improper purpose in initiating the proceeding
5) Damages

Question 18

Abuse of process

Answer 18

Arises when D uses the legal system as an ulterior purpose to threaten or act against P.

Elements:

1) wrongful use of process for an ulterior purpose
2) definite act or threat against P to accomplish an ulterior purpose.

Question 19

Intentional misrepresentation

Answer 19

Fraud/deceit

Elements:

1. D misrepresents a past or present material fact
2. D knows or believes the misrepresentation is false
3. D intends to induce P to act or refrain from acting in reliance on the misrepresentation
4. Actual reliance by P (causation)
5. Justifiable reliance by P (not obviously false or an opinion)
6. Damages (P must suffer monetary loss)

Question 20

Negligent Misrepresentation

Answer 20

Elements:

1. D misrepresents a past or present material fact in a business or professional setting
2. Breach of duty of care owed to a particular D
3. Actual and justifiable reliance by P
4. Damages - P must suffer monetary loss

Question 21

Intentional interference with business relations

Answer 21

Arises when a third party interferes with an existing contract.

Elements:

1. P has a valid contractual relationship or business expectancy. Includes contracts between P and a third party
2. D has knowledge of the relationship or expectancy
3. D intentionally interferes with that relationship. Must be intentional - negligence is insufficient.
4. D’s interference causes a breach or termination in P’s contract or expectancy
5. Damages

Privilege Defenses
-D’s conduct may be privileged when it is a proper attempt to obtain business or protect his interests.

Question 22

Negligence: Elements and standards

Answer 22

Elements:

1. Duty of care
2. Breach of duty
3. Causation - actual cause and proximate cause
4. Damages

Negligence basics:
- analyzed under objective standard compared to a reasonable person.

Question 23

Duty of care

Answer 23

D owes a duty of care to all foreseeable victims of his activities.

Default duty of care:
- D’s duty is to behave like a reasonably prudent person under the circumstances.

Foreseeable victims - those within the zone of danger.

• ZOne of danger is the area around D’s activities in which a P could foreseeably be injured
• REscuer’s exception - if D puts himself or another in danger and a third person attempts to rescue, D can be held liable for the rescuer’s injuries, even if unforeseeable. Does not apply to firefighters or police
• Prenatal injury - a duty of care is owed to a viable fetus
• Intended economic beneficiaries - a duty of care is owed to third party beneficiaries if their harm is foreseeable

Question 24

Specialized Standards of Care: Children

Answer 24

Held to the standard of care of a like child of similar age, education, intelligence and experience (subjective test). Generally, children under seven lack capacity to be held negligent.

Question 25

Specialized Standards of Care: Common carriers and inkeepers

Answer 25

Held to an utmost care, standard. Liable for even slight negligence to passengers or guests.

Question 26

Specialized Standards of Care: custom or usage in an industry

Answer 26

Can be used to establish a standard of care, but failure to adhere does not automatically give rise to a breach of duty

Question 27

Specialized Standards of Care: Professionals

Answer 27

Expected to act with the care of an average member of the profession in good standing in similar communities.

Question 28

Duty of care for owners and occupiers of land to trespassers

Answer 28

Owners and occupiers of land may have a duty of care for anticipated trespassers and child trespassers. Same standard of care applies for owners and occupiers. Unknown or undiscovered trespassers - no duty owed. Anticipated trespassers - where owner has reason to believe of trespassers on her land. - activities - owner has duty of reasonable care in carrying out activities on her property - Dangerous conditions - owner has duty to make safe or warn of any known, concealed, man-made hazards. (this is rare) Attractive nuisnace doctrine

Question 29

Attractive nuisance doctrine for child trespassers.

Answer 29

Owner must take reasonable care to eliminate dangers on her property or protect children from those dangers if: 1. she is aware or should be aware of a dangerous condition (natural or artificial) on her property 2. She knows or should know children are in the vicinity 3. condition is likely to cause injury if encountered 4. the magnitude of the risk outweighs its utility or the expense of remedying it

Question 30

Duty of care for owners and occupiers of land to licensees and invitees

Answer 30

Licensee: one who enters land with owner's permission for his own purpose or business. Invitee: one who enters land held open to the public or who enters with owner's permission to confer a commercial benefit Duty of care owed: - Activities carried out on property - reasonable care - Known dangerous conditions - duty to warn or make safe - Duty to inspect - n/a for licensees. Invitees - owners have duty to conduct a reasoanble inspection for non-obvious dangers and make them safe. Scope of duty - limited by scope of the invitation/license -Owner's duty extends only to those areas where one is in invitee or licensee

Question 31

Damages

Answer 31

P must prove damages, which are not presumed in negligence cases; nominal damages are not available. Types of damages: - Personal injury - D must compensate P for all damages. Includes past, present, and prospective damages. Economic and non-economic damages are recoverable. - Property damage - P can recover reasonable cost of repair. If property is irreparable, damages = fair market value at the time the accident occurred. - Punitive damages - only recoverable if D's conduct is wanton and willful, reckless, or malicious. Non-recoverable damages - P can never recover for: - Interest from the date of damage in personal injury cases - attorneys fees Duty to mitigate - P has a duty to take reasonable steps to mitigate damages

Question 32

Strict Liability: prima facie case

Answer 32

P can establish D's liability for P's injuries without proving D acted negligently. Strict liability is limited to cases involving: - Products liability - Animal conduct - Ultrahazardous and/or abnormally dangerous conditions Prima facie case: 1. Nature of D's activity imposes absolute duty to make safe 2. Causation - actual and proximate cause. Dangerous aspect of D's activity caused P's injury 3. Damages to P's person and property. Note - no amount of due care will relieve D of liability under strict liability. Defenses - assumption of risk, comparative negligence.

Question 33

Strict liability: Abnormally dangerous conditions

Answer 33

Abnormally dangerous or ultrahazardous activities or conditions give rise to strict liability for any resulting injuries. Requirements for proving abnormally dangerous activity: 1) The condition or activity imposes a severe risk of harm to persons or property 2) It cannot be made reasonably safe. Cannot be performed without serious risk of harm. 3) The condition or activity is uncommon in the community. Note: often arises on the MBe with explosive, toxic, and/or biohazardous materials Injury must result from the abnormally dangerous activity.

Question 34

Strict Liability: Animal conduct

Answer 34

Property damage from trespassing animals: animal owners are strictly liable for reasonably foreseeable damage resulting from their animal trespass on another's property Personal injuries: - Wild Animals - owners are strictly liable to licensees and invitees for unprovoked injuries caused by their wild animals - Domestic animals - no strict liability unless owners know of their animal's unusually dangerous propensities - Trespasser cannot recover.

Question 35

Manufacturing defect

Answer 35

Product departs from its intended design, causing it to be more dangerous than designated. P must show that the product failed to perform as safely as an ordinary consumer would expect.

Question 36

Design Defect

Answer 36

Product creates an unreasonable risk of danger due to its faulty design. P must show that a hypothetical alternative design exists that is safer but has a comparable cost and purpose. - Risk-utility - Consumer expectations

Question 37

Inadequate warning

Answer 37

Manufacturer fails to adequately warn of a non-obvious risk associated with a product's use. - Manufacturer also has duty to warn of foreseeable dangers from misuse of the product. - P must show that the product has risks that: (1) cannot be eliminated by redesign, and (2) consumers would not ordinarily notice. - Unavoidably unsafe products - if product cannot be made safe for its ordinary use, a manufacturer must give: (1) proper instructions for use, and (2) adequate warnings of unknown dangers. - D not liable for risks that were unforeseeable at the time the product was marketed.

Question 38

Vicarious liability

Answer 38

Arises when D commits a tort against P and a third person is held liable due to his relationship with D.

Question 39

Doctrine of respondeat superior

Answer 39

Employers are liable for torts committed by employees within the scope of their employment. Intentional torts are usually outside the scope, unless: a) the job requires use of force b) the job entails creating friction c) the intentional tort is done to further the employer's goals

Question 40

Vicarious liability: independent contractors

Answer 40

Employers are generally not liable for torts committed by independent contractors, except for acts that are inherently dangerous or duties that are nondelegable

Question 41

Vicarious liability - Partnership

Answer 41

Each partner is vicariously liable for any other partner's torts committed within the scope of the partnership

Question 42

Vicarious liability: parent-child

Answer 42

Parents are not liable for their children's torts. - But parents may be separatly negligent if they had reason to know of a child's propensity to injure or facilitated the tort

Question 43

Vicarious liability: Tavernkeepers/dram shop

Answer 43

Businesses serving alcohol may be held liable to a P injured by an intoxicated patron if the business was negligent in serving the patron. Dram shop also applies to social host

Question 44

Joint and several liability - generally

Answer 44

Arises if the acts of two or more Ds combine to produce a single indivisible injury - Each D is jointly and severally liable for the entire harm if his actions were a factor in bringing about P's injury - Satisfaction - if P recovers fully from one D, she may not recover more from a jointly liable D

Question 45

Joint and several liability - Contribution

Answer 45

D who pays more than her share of damages under joint and several liability can assert a claim against jointly liable parties for the excess paid - Not applicable to intentional tort liability - Contribution is usually imposed in proportion to relative fault

Question 46

Joint and several liability - Indemnity

Answer 46

Involves shifting the entire loss between or amongst Ds. | - Available by contract, in vicarious liability situations, or under strict products liability

Question 47

Intentional infliction of emotional distress

Answer 47

Extreme and outrageous conduct by D causing P's severe emotional distress Elements: 1. Extreme and outrageous conduct by D. Conduct that exceeds the bounds of decency in society. 2. Severe emotional distress in P. P must suffer severe emotional distress from D's conduct. Physical symptoms are not necessary 3. Intent or recklessness. Recklessness = D disregards the likely consequences of his acts 4. Causation

Question 48

Bystander Claims for Emotional Distress

Answer 48

A bystander closely related to a person physically injured or killed by D's conduct may recover for emotional distress. Elements: 1. D's conduct seriously injured or killed a third person. 2. P is closely related to the injured person. Note: this element is not required if P shows that D had a design or purpose to cause P severe distress. 3. P was present when the injury occurred. P must clearly witness the injury-causing event 4. D knew elements 2. and 3. 5. P suffers severe emotional distress. Physical manifestation is not required.

Question 49

Statutory standards of care & negligence per se

Answer 49

An existing statute may establish a duty of care, in which case the specific duty imposed by teh statute will replace the general common law duty of due care. - Negligence per se: violation of the statute means P must only prove causation, not breach of duty. - Compliance does not automatically clear D of liability Requirements: 1. The statute provides a penalty 2. Standard of conduct is clearly defined in teh statute 3. P is within the class of people the statute was designed to protect. 4. The statute was designed to protect against the type of harm P suffered Statutory standard of care does not apply if: a) compliance is more dangerous than non-compliance b) compliance is impossible under the circumstances

Question 50

Negligent infliction of emotional distress

Answer 50

P may recover for emotional distress resulting from D's negligence but only if P's emotional distress gives rise to some physical manifestation Elements: 1) D's negligence results in a close risk of bodily harm to P. P must be in "zone of danger" to recover. 2) D's negligence results in P's severe emotional distress 3) P exhibits some physical manifestation attributable to her emotional distress.

Question 51

Defenses: Self Defense

Answer 51

Requirements for all defenses: 1) Reasonable belief - D must reasonably believe a tort is being or about to be committed 2) Proper timing - tort must be in progress or imminent 3) Reasonable force - must be proportionate to threat of harm. Deadly force allowed if D reasonably believes a life is in danger (never permitted to protect property alone) Self defense: - No duty to retreat - Reasonable mistake by D is allowed - Only available to initial aggressor if D responds to non-deadly force with deadly force

Question 52

Defenses: Defense of others

Answer 52

Requirements for all defenses: 1) Reasonable belief - D must reasonably believe a tort is being or about to be committed 2) Proper timing - tort must be in progress or imminent 3) Reasonable force - must be proportionate to threat of harm. Deadly force allowed if D reasonably believes a life is in danger (never permitted to protect property alone) Defense of others - D steps in the shoes of the intended target - D may not use greater force than the intended target could have reasonably used. - Reasonable mistake by D is allowed

Question 53

Defenses: Defense of Property

Answer 53

Requirements for all defenses: 1) Reasonable belief - D must reasonably believe a tort is being or about to be committed 2) Proper timing - tort must be in progress or imminent 3) Reasonable force - must be proportionate to threat of harm. Deadly force allowed if D reasonably believes a life is in danger (never permitted to protect property alone) Defense of property - available to prevent tort against property - Unavailable if initial actor had a privilege to enter land - Reasonable mistake only allowed as to whether an intrusion occurred, not whether privilege existed - D must request that interference stop before using force unless doing so would be futile or dangerous

Question 54

Defamation

Answer 54

A statement concerning P, made by D to a third person, that is harmful to P's reputation. If statement involves a matter of public concern or a public figure or official, falsity and fault may be required Elements: 1) Defamatory statement - adversely affects P's reputation. Must be based on specific facts. 2) Concerning P - must be reasonably understood that the statement concerns a living P or a very small group of Ps 3) Publication - statement must be intentionally or negligently made to a third person 4) harmful to P's reputation 5) Falsity & fault - only required if statement involves a matter of public concern or a public figure or official Liability for republication - the republisher of a defamatory statement is liable to the extent as the original publisher Damages - P's burden in proving damages depends on whether the defamatory statement was libel or slander.

Question 55

Defamation: Constitutional Considerations

Answer 55

1st Amendment considerations arise when defamation involves a public figure, public official, and/or a matter of public concern Public figures, public officials, and matters of public concern: - Public figure = one who was pervasive fame or notoriety, or who voluntarily assumes a central role in a public matter - Public official = public office holder - Matter of public concern - statement relates to a community interest or concern (includes national interests) Additional elements - if defamation involves a matter of public concern, P must prove: 1) Falsity - P must prove the statement was false 2) Fault P must prove D was at fault; standards differ for public vs. private figures. Public official or figure - actual malice standard (knowledge of the statement's falsity or reckless disregard to whether it was false). Private figure - negligence standard. Note - for defamation involving private figures and private matters, there is no fault standard at common law

Question 56

Defamation: Damages Considerations

Answer 56

Damages depend on whether the defamatory statement constitutes libel, slander, or slander per se Libel - P does not have to prove special damages - Libel = written defamatory statement Slander - P must prove special damages unless the statement constitutes slander per so - Slander = spoken defamatory statement - Special damages - a specific economic loss - Slander per se - a defamatory statement that either: (a) concerns and adversely reflects on P's business or professional reputation, (b) claims that P has a loathsome disease, (c) claims that P committed a crime of moral turpitude, or (d) claims that P committed sexual misconduct.

Question 57

Defenses to Defamation

Answer 57

Consent, truth, and privilege Privilege: - Absolute privilege - protects statements by gov officials in their official capacity - Qualified privilege - D's liability for defamatory statements is limited if the purpose of the speech is to promote truthfulness and/or related to fair comment and criticism

Question 58

Breach of duty

Answer 58

D breaches his duty when his conduct falls short of the standard of care owed under the circumstances To demonstrate a breach, P can argue: a) D breached the applicable standard of care b) Res ipsa loquitor - the very occurrence of the accident causing P's injuries suggests negligent conduct

Question 59

Res ipsa loquitor

Answer 59

Requirements: 1) inference of negligence - the harm would not normally occur absent negligence 2) attributable to D - this type of harm normally results from negligence by one in D's position. 3) injury was not attributable to P

Question 60

Actual cause

Answer 60

Establishes a causal connection between the alleged breach of duty and the resulting injury "But-for" test - but for D's alleged breach of duty, P's injury would not have occurred. Substantial factor test - for multiple causes of P's injury - D's breach is for the actual cause if it was a substantial factor in bringing about P's injury - Used if multiple causes bring about P's injury and any one of them alone would have caused the injury Burden-shifting test - for several possible causes of P's injury. - Used if multiple Ds act (often simultaneously), only one causes P's injury, but unclear which D caused the injury - Burden of proving actual cause shifts to Ds - if no D can prove another D was responsible, all D's are jointly and severally liable "Cause in fact"

Question 61

Proximate Clause

Answer 61

Establishes that it is fair under the law to hold D responsible for P's injuries. Foreseeability - measuring stick for proximate cause. D is liable for the foreseeable outcome of his conduct. Direct causes - if P's injury is the direct consequence of D's negligent conduct, D is liable unless outcome is unusually bizarre or unpredictable Indirect/intervening causes - where contributing acts occur between D's conduct and P's injuries. - D is usually liable if injury could have possibly been resulted even without intervening forces - Approach - consider the type of harm being protected against by holding D negligent for his conduct. Eggshell plaintiff rule - D takes P as he finds him and is liable for the full extent of P's injuries, regardless of whether they are foreseeable.

Question 62

Comparative negligence

Answer 62

D can establish that P's injuries are at least partially the result of P's own negligence - Court apportions fault between P and D and reduces P's recoverable damages accordingly - Partial/modified comparative negligence - P can only recover damages if he was less than 50% at fault - Pure comparative negligence - P can recover damages even if he was more than 50% at fault

Question 63

Contributory negligence

Answer 63

P is barred from recovery if D establishes that P's negligence contributed to her injuries. Last clear chance doctrine - P can rebut D's contributory negligence claim by alleging D had the last clear chance to avoid the injury-causing accident

Question 64

Assumption of risk

Answer 64

D can deny P's recovery by establishing that P assumed the risk of damage caused by D's act. Requirements: D must show: 1) P knew or should have known the risk (objective standard) 2) P voluntarily proceeded in the face of that risk

Question 65

Products Liability - strict liability

Answer 65

Elements: 1) D is a merchant. Merchant = one who routinely deals in teh rpoduct sold, including any merchant in the stream of commerce. 2) Product is defective. Defect must make product unreasonably dangerous 3) Product is unaltered since leaving D's control 4) P used the product in a foreseeable manner Who can sue: foreseeable users or bystanders Damages: - P can recover for physical injury or property damage, but not solely for economic losses.

Question 66

Products Liability: Negligence Theory

Answer 66

P may establish liability for a product defect under standard negligence theory. Note: a product defect is almost always easier to establish under a strict liability theory. Elements: 1) Duty of care - each merchant in the stream of commerce owes a duty to all foreseeable product users and bystanders 2) Breach of duty - D's negligence leads to the supplying of a defective product. 3) Causation - P must show actual and proximate cause. Note: an intermediary's negligent failure to discover defect does not absolve upstream merchant of liability. 4) Damages - P must show physical injury or property damage. Economic loss alone is not recoverable. Defenses - all standard negligence defenses are available

Question 67

Implied warranties

Answer 67

Implied in every sale of goods is a warranty of merchantability and warranty of fitness for a particular purpose. Merchantability - seller warrants that goods are of average acceptable quality (i.e., without defects) and generally fit for their ordinary purpose Fitness for a particular purpose - if seller a) knows or has reason to know the particular purpose for which buyer is purchasing, and b) buyer relies on seller's skills or judgment, seller implies that goods are fit for that purpose Who can sue: all reasonably foreseeable users can sue for personal injuries arising from a breach of an implied warranty. Elements: 1. Warranty 2. Breach 3. Causation 4. Damages Defenses - assumption of risk, contributory and comparative negligence

Question 68

Liability based on representation: express warranty

Answer 68

D may be liable if a product falls short of an affirmative representation made to buyer Express warranty: a statement of fact or promsie regarding goods sold taht becomes part of the basis of the bargain. - Any consumer or bystander can sue for breach. - Bystanders need not have relied on the express warranty, as long as the original purchaser did Elements: 1. Express warranty 2. Breach 3. Causation 4. Damages Defenses: assumption of risk, contributory and comparative negligence.

Question 69

Liability based on representation: Misrepresentation of fact

Answer 69

Seller will be liable for any misrepresentation made in the course of a sale if: (1) Seller made a misrepresentation regarding a material fact concerning the quality or use of the goods (2) seller intended to induce reliance by buyer (3) the misrepresentation induced justifiable reliance Defenses: no assumption of risk; contributory negligence available if misrepresentation was negligent, not intentional

Question 70

Nuisance

Answer 70

Tortious invasion of either public or private property rights. Note: nuisance is a harm caused by tort, not a tort itself.

Question 71

Private nuisance

Answer 71

A substantial, unreasonable interference with another individual's use or enjoyment of their property. - Substantial interference: must be offensive, annoying, or inconvenient to the average person in the community. - Interference is not substantial if P is hypersensitive or using property for a specialied, abnormal purpose - Unreasonable interference - severity of P's injury must outweigh the utility of D's conduct Potential remedies: money damages, injunctive relief Defenses: - P cannot recover if he "came to the nuisance" (e.g., bought property next door) for the sole purpose of bringing suit - Contributory negligence is available if P asserts a negligence theory and acted negligently in creating the nuisance.

Question 72

Public Nuisance

Answer 72

Unreasonable interference with health, safety or property rights of the community at large. - Recovery is only available to a private party if they suffered unique damage not suffered by the public at large. - Gov usually brings public nuisance suits. Potential remedies: money damages, injunctive relief Defenses: - P cannot recover if he "came to the nuisance" (e.g., bought property next door) for the sole purpose of bringing suit - Contributory negligence is available if P asserts a negligence theory and acted negligently in creating the nuisance.