Torts Flashcards
(148 cards)
1
Q
Conditional threat v. conditional words
A
Conditional threat => may establish the element of apprehension in a prima facie case of assault. For example, if a gunman, while pointing a gun at a plaintiff, states, “Your money or your life,” then an assault has occurred.
Conditional words => Negate immediacy of assault
2
Q
Elements of battery (prima facie)
A
1) D’s harmful or offensive conduct to P’s person
2) D’s intent to bring about harm or offense
3) causation
3
Q
what kind of knowledge should D of intentional tort have?
A
The requisite intent for intentional torts (such as battery) is satisfied if the actor knows with substantial certainty that the consequences of her conduct will result.
4
Q
Elements of Assault (prima facie)
A
1) D put P in a reasonable apprehension of
> P must be aware of the battery coming
> Do not have to be scared
2) Immediate battery
> offensive words not enough (need conduct), conditional words, future tense words not enough
3) Had an intent to do so.
5
Q
Can chattel owner use force to take chattel back?
A
Yes. An owner may use reasonable force to recapture a chattel when in “hot pursuit” of the tortfeasor.
A demand for return of the chattel must be made before force is used, unless the demand would be futile or dangerous.
However, force can be used only against the tortfeasor or a third party who knows that the chattel was tortiously obtained. If an innocent third party has obtained the chattel, the owner is no longer privileged to use force to effect a recapture of the chattel.
6
Q
Can landowner use force to kick out people who move in to your property tortuously?
A
No! Most states today do not allow resort to “self-help”; one who has been wrongfully excluded from possession of real property may bring an ejectment action or other summary procedure to recover possession. Hence, the owner who uses force to retake possession is liable for whatever injury she inflicts.
7
Q
Shopkeepers Privilege (against false imprisonment)
A
- There must be a reasonable belief as to the fact of theft;
- The detention must be conducted in a reasonable manner and only nondeadly force can be used; and
- The detention must be only for a reasonable period of time and only for the purpose of making an investigation.
A shopkeeper is not required to notify the police in a reasonable amount of time to avoid liability for false imprisonment when detaining a suspect for shoplifting
8
Q
Does property owner have to first ask to leave before defending property?
A
Usually Yes, unless the circumstances make clear that the request would be futile or dangerous.
9
Q
Defense of recapture of chattels
A
Force may be used to recapture a chattel only when in “hot pursuit” of one who has obtained possession wrongfully (e.g., by theft).
When another’s possession of the owner’s chattel began lawfully (with owner’s consent, like landing someone a game or money, etc.) => the owner may use only peaceful means to recover the chattel.
10
Q
Can you use shopkeepers privilege as defense for assault, battery, other intentional torts?
A
Yes, usually used for false imprisonment cases, but can be used here too
11
Q
Can landowner use vicious dogs, traps spring gun to protect property?
A
No, must use reasonable force to protect property - cannot use force that is deadly or serious bodily harm
“Beware dog” signs will not help because there was no right to use this kind of force in the first place.
12
Q
Can trespasser sue for strict liability?
A
No, strict liability generally is not imposed in favor of undiscovered trespassers against landowners. Trespassers cannot recover for injuries inflicted by the landowner’s abnormally dangerous domestic animals in the absence of negligence.
13
Q
Does private privilege apply to protect from liability when you trespassed to save your car?
A
Yes, a person may interfere with the real or personal property of another when the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and the threatened injury is substantially more serious than the invasion that is undertaken to avert it.
14
Q
Can HO board people be JS individually liable for torts in common areas?
A
No, generally, they are not JS or individually liable for torts that occur in common areas.
Nor are individual owners who own the property common areas as tenants in common.
15
Q
Do you have to show that suffered bodily harm for battery?
A
No, this is a dignitary tort - all you have to show is harmful or offensive contact from D.
16
Q
Are orders to remand considered final orders?
A
Yes, court’s order to remand kicked the case out of district court entirely.
17
Q
Are orders to remand ( to state court) appealable?
A
Generally no => if court is remanding for lack of jurisdiction
Exception: can be appealable if court exercised discretion in deciding to remand.
> ex: fed question + supplemental J over a state claim, FQ is resolved, court can choose to keep or remand.
18
Q
When is the owner liable for unknown conditions on his land?
A
To an invitee, is liable for all concealed dangers that he knew or would have known if he had done a reasonable inspection
19
Q
What must P present to show breach in negligence action?
A
- facts of what happened
- based on these facts D acted unreasonably
- stuff that may help establish the reasonable standard for D’s actions:
> Custom or usage of something
> Applicable statute
> Res Ipsa
20
Q
What statute can create Negligence per se?
A
Criminal, NOT civil (if it was a civil, P would bring a suit under the statute and it would not be a common law negligence claim)
Elements:
> P in statute protected class
> P’s injury is type statute was designed to prevent
21
Q
Superseding Cause
A
A superseding force is one that serves to break the causal connection between the initial wrongful act and the ultimate injury, and itself becomes a direct immediate cause of such injury.
22
Q
Does violation of Negligence per se statute automatically establish Negligence?
A
NO - it only established duty and breach , NOT but-for or proximate cause
23
Q
Assumption of risk defense
A
Under this defense, a plaintiff will be denied recovery in a negligence action if he either expressly or impliedly knew of the risk of injury and voluntarily proceeded in the face of the risk.
However, courts refuse to permit an assumption of risk defense in some situations because of public policy considerations.
When a statute applies and is enacted to protect a class, members of that class will not be deemed to have assumed any risk. (does not matter)
24
Q
Sudden heart attack when driving no prior history .. is D liable?
A
no cuz no breach if you had no control over stuff, 😎
Also, this make violation of state excused because impossible to comply when you are unconscious
25
Is a health inspector coming to check your office a licensee or an invitee?
He is an invitee:
Persons who enter the premises for a purpose connected with the landowner's business are invitees and are owed a higher duty.
26
Can an invitee lose his status as invitee?
Yes, A person loses his status as an invitee if he exceeds the scope of the invitation-if he goes into a portion of the premises where his invitation cannot reasonably be said to extend.
27
Firefighter Rule
treated as licensee
They cannot recover for a landowner's failure to inspect or repair dangerous conditions that are an inherent risk of their law enforcement or firefighting activity.
28
When is landowner liable for independent contractor's acts?
1) C engaged in inherently dangerous activities
| 2) C does something on property that makes it unsafe , harms customers, etc.
29
When can D who was found jointly and severally liable recover from joint tortfeasor?
JS means that P can recover full amount from any one or parts from both. If one pays the whole, can get contribution from the other one in the amount of his fault.
But if the other one acted intentionally, D1 can get indemnified for the whole amount he paid, even if D1 was 50% at fault.
30
What are the effects of Res Ipsa?
- no directed verdict may be given for the defendant, because when the res ipsa element has been proved, the plaintiff has made a prima facie case for negligence.
- The doctrine, however, does NOT switch the burden of proof to the defendant
- does NOT create a presumption of negligence.
- it does NOT require the defendant to present evidence of due care in rebuttal.
31
What intervening forces are foreseeable (do not cut the chain of proximate cause liability)
- criminal acts of third persons (unless you can show that the negligence increased the risk of criminal activity)
- rescuer
- subsequent injury
- efforts to protect life or property (of yourself or third persons)
32
If not clear whether there was a breach
Use Hand Formula analysis
Hand's theory compares the burden of taking percussion against the probability and the risk.
33
Is D strictly liable fro damage done by his trespassing wild animal?
Yes, as long as the damage was reasonably foreseeable. It does not matter that the owner acted with reasonable care to keep them from trespassing.
34
What is abnormally dangerous activity?
Abnormally dangerous if it creates a FORESEEABLE risk of serious harm even when reasonable care is exercised by all actors.
The harm must result from the kind of danger to be anticipated from the abnormally dangerous activity; i.e., it must flow from the "normally dangerous propensity" of the condition or thing involved.
35
Is abnormally dangerous activity a question of fact?
no, judge can decide on j. as a matter of law.
36
is an owner liable for an unforeseeable trespass of his wild/ dangerous propensity animal?
No, not liable unless the trespass was foreseeable
37
Is owner of wild animal/dangerous propensities liable for animals harm to trespassers.
No, unless owner was negligent - the landowner knew of the trespasser and failed to warn of a wild animal or abnormally dangerous domestic animal.
38
Can unforeseeable intervening cause relieve from SL for an abnormally dangerous activity?
Yes. Same as negligence analysis.
39
Must there be some kind of showing of causation of LS?
Yes, strict liability does not apply to harms that were not caused by the normally dangerous aspect or propensity of the activity.
40
Does domesticated animal that may cause serious harm qualify as dangerous propensity animal?
No, to qualify as dangerous propensity is not enough that the sort of animals are usually dangerous (bulls), but that yours specifically is more dangerous than you would expect from such animal. 🦒
41
negligence of choosing a contractor
makes employer directly liable, not vicariously liable
42
employer not liable for contractors' torts unless
- directly harms customer while at the premises (non-delegable duty to keep premises safe fro customers)
- is engaged in inherently dangerous activity
43
can an employee be vicariously liable for intentional torts of employees?
NO, unless
- courts will find intentional tortious conduct to be within the ambit of this relationship when
(i) force is authorized in the employment;
(ii) friction is generated by the employment (collections); or
(iii) the employee is furthering the business of the employer. (checking everyone's purses as a security)
44
Can an employer be directly liable for torts of employees?
Yes,
An employer owes a duty to all those who may foreseeably come into contact with his employee to exercise due care in the hiring, supervision, and retention of the employee
45
Can a retail store be held products strictly liable for design/manufacture defect if did not have a chance to inspect the product?
Yes, simply for being a commercial supplier of that defective product, even if it had no opportunity to inspect the manufacturer's product before selling it.
In a negligence action, the supplier's negligence must be proved.
46
what kind of damages you HAVE TO show for products liability cases?
Products liability cases based on negligence and those based on strict liability both prohibit recovery of solely economic losses. The types of damages recoverable under both theories are the same:
> personal injury and
> property damages.
Economic loss cannot be the sole damage claim.
47
What but-for cause do you have to show in a SL products liability action?
The basic requirement to show actual cause is that the defect in the product must have existed when the product left the defendant's control.
When a defect is difficult to establish (such as if the product is destroyed), the plaintiff may rely on an inference that such a product failure ordinarily would occur only as a result of a defect (similar to res ipsa loquitur).
To show that inadequate warnings were an actual cause of the injury, the plaintiff is entitled to a presumption that an adequate warning would have been read and heeded (i.e., but for the lack of an adequate warning, the plaintiff would not have been injured).
48
In negligence products liability action, will retailer's failure to inspect cut liability?
It may, if you show that it was breach of duty of care to spect the products.
in SL case, this only cuts causation if retailer discovered and did not do anything (not that it failed to discover)
49
Prima Face case elements for product SL?
A prima facie case in products liability based on strict tort liability consists of the following:
(i) the defendant is a commercial supplier;
(ii) the defendant produced or sold a defective product;
(iii) the product was the actual and proximate cause of the plaintiff's injury; and
(iv) the plaintiff suffered damages to person or property (just economic not enough).
50
J&S Liability
applies unless MBE tells you not to apply.
P can recover from any D, then they can figure among themselves.
51
How successful are Product liability negligence claims on MBE?
usually not successful, hard to show breach, look for breach facts.
52
What can be offensive contact?
Any contact that is not consented to - includes doctor doing stuff to your body (during surgery) you did not consent to.
53
If question says that the surgery was successful
=> means no damages, so patient probity cannot bring negligence (malpractice) claim.
Note: check for battery - NO DAMAGE IS REQUIRED here.
54
in what intentional torts must you prove damages?
- IIED
- trespass to chattels
- conversion
55
are nominal damages allowed?
=> negligence NO
=> battery YES
56
Informed medical consent must cover
- material risks in procedure that a reasonable patient would want to know.
Negligence
57
Conversion/trespass to chattels state of mind requirement
not the desire to steal/damage another's property, but intent to voluntarily commit the physical act.
=> MISTAKE IS NOT A DEFENSE
58
duty of people with disability
a reasonable person with he same disability
59
When can P avoid directed verdict in negligence action?
if P has shown duty and breach - enough to overcome directed verdict
in general, all P's directed verdicts are denied
60
how successful are directed verdicts in torts
Usually => both (P & D) are denied.
61
Attractive Nuisance elements
- artificial dangerous condition
- D knows or should have know children are likely to trespass
- child herself fails to realize the risk/appreciate the danger
- balancing - burden to make safe should be be higher than the risk involved.
62
if you invite a guest over your house for dinner, what is their status?
social guest = LICENSEE
duty to warn/fix of only known natural and man-made not visible dangers
63
when is negligence per se excused?
- if complying with the statute would be more dangerous
| - if it was out of D's control to comply - passed out
64
Alternative liability (burden shift) 🦆
applies when multiple D were ALL NEGLIGENT but there is no way to know which one's negligence caused harm?
Burden shift to D's to show that their negligence did not cause they harm.
Note: different from cases where P cannot show negligence of Ds in the first place. (3 cooked meat combined and poisoned P, were if only 1 food was poisoned but there was no way to tell which one, no negligence can be proven. Neg. would be met and Alternative liability would apply IF all 3 were poisoned but there as no way to know which poison injured P.)
65
Can you apply res ipsa when multiple Ds?
No, recuasse then the instrumentality causing injury is probably not in a single D's control.
Very rarely applied to joint D venture cases.
While res ipsa loquitur is sometimes not available where more than one person may have been in control of the instrumentality causing the injury, it is available in a case where a particular defendant had the power of control over the site of the injury.
ex: supervising contractor; operation room people
66
what are products strict liability defenses
```
- assumption of risk
> usual contributory negligence is not
> comparative is (pure/partial)
- unforeseeable misuse
- adequate warning.
> even clear warning is not enough if the danger is easily fixed.
```
67
What must you show to prove negligently defective design?
you have to show that BEFORE the injury occurred, manufacturer knew or should have known of the design defect.
Note: notice by P's injury is not enough. Look if there are no previous complaints by customers.
cars = > we did not know we had to make a batter design cuz this issue has never happened before
68
Speech and Debate Clause
immunity from defamation within the Houses of Congress - thankfully applies to their staff
69
Privacy Torts
- commercial appropriation
- false light
- public disclosure private info
- intrusion to seclusion
> publication not required
- truth not defense except false light
- v. defamation => def. does not
- does not need economic/special damages (like def.), emotional etc. is enough
70
Did not know v. did not foresee in battery actions.
if D did not know that he injury would occur - can show no intent - thus negating required battery element.
if D could not foresee that type of harm - there is still battery because it does not matter what kind of harm to end up causing if you intended to cause some kind of harm to begin with. => ok to not foresee the extent of the harm.
71
Does falsely imprisoned have to show damages?
No, only that we was aware of the imprisonment.
72
Foreseeability and JS Liability
The doctrine of joint and several liability provides that when two or more tortious acts combine to proximately cause an indivisible injury to plaintiff, each tortfeasor will be jointly and severally liable for that injury.
This means that plaintiff can recover the entire amount of his damages from any one defendant. The doctrine applies even though each tortfeasor acted entirely independently and at different times.
73
Clarifying Proximate Cause / Superseding Cause
The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts.
ASK: WAS THE INTERVENING FORCE WITHIN THE RISK CAUSED BY D?
This rule applies where an intervening force comes into motion after the defendant’s negligent act and combines with it to cause plaintiff’s injury (indirect cause cases).
74
Can D waive improper venue?
Yes, she can inform P that he is waiving any objection to improper venue?
75
Can a future oral defamation be libel?
YES, if the initial defamation was written (libel) then any repetition is treated as the same.
Libel is a defamatory statement recorded in writing or some other permanent form. Where the original defamation is libel, any repetition, even if oral, is also libel.
76
If Q says jury already assigned fault %, what can the correct answer be?
can include something that justifies jury's finding of liability.
ex: Jury assigned fault A-30%, B-70%.
Answer: P can recover from B because it was foreseeable that his actions would lead to her injury. 😠
77
Can an illegal act be foreseeable for proximate cause?
Yes.
78
Indemnification in vicarious liability
very common
Employee's negligence that caused the injury is enough to allow indemnity for the employer if employer was liable for the judgment solely because of its relationship to the employee.
Note: company need not show that the worker breached a company rule before it can obtain indemnity.
Note: indemnity is for 100% compensation, unlike contribution which apportions the loss among those who are at fault.
79
when is a contributory negligence a defense in strict liability?
Has to raise to the level of assumption of risk.
P discovered the defect, was aware of it, and still unreasonably used it.
not enough to just fail to discover, or to generally know of the dangerous propensities and fail to take percussions.
80
what if there is a strict liability suit, but the user (driver) was itself negligent?
User's negligence is irrelevant in SL even if the user was negligent in causing injury because knew of the dangers and did nothing about them.
- note: user may only "assume the risk" which means that discovered the defect, clearly knew and unreasonably did not do anything.
- note - user's negligence may cut proximate cause if it is not a SL, but a negligence action.
81
Medical malpractice (based on informed consent)
> duty was the undisclosed risk serious enough that a reasonable person in the patient's position would have withheld consent to the treatment
> Breach
> Actual/proximate cause
> Damages
Compare to battery: where there is must be no consent, but do not have to show damages.
82
Can you recover economic losses from Strict Liability?
NO, only personal, property injury, unless contractually agreed to pay for losses.
83
What must P show for legal malpractice claim?
1) L owed a duty of care
2) L breached duty
3) Causation
4) Damages
====> NOTE! this means suing client must show that but for the L's negligence, he would have recovered money. because we need to prove that he suffered loss in damages.
84
What is the battery intent requirement?
The intent element is satisfied as long as the defendant knew with substantial certainty that the harmful or offensive contact would result.
Note: does not have to have the clear intent to hit exactly that person sitting there.
85
If a person's car is damaged, can recover under ..
trespass of chattels, (not quiet conversion but takes away some property:
(i) an act of defendant that interferes with plaintiff’s right of possession in the chattel,
(ii) intent to perform the act bringing about the interference with plaintiff’s right of possession,
(iii) causation, and
(iv) damages.
The act of interference may be either dispossession of or damage to the chattel.
86
Duty to mitigate in construction ks
Nonbreaching party is always under a duty to mitigate damages after learning of the other party’s breach.
In construction contracts, the builder’s duty to mitigate generally dictates only that he NOT CONTINUE work after the breach and not incur further expenditures.
does not have to go find a new job
87
Assault
CRIMINAL
(i) an attempt to commit a battery, or
(ii) the intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm.
CIVIL
> Put P in a reasonable apprehension of immediate battery
CAREFUL => if criminal, can be an assault EVEN IF P has no apprehension of imminent harm, cuz it can be only attempted crime battery (attempt to unlawfully apply force to the person resulting in bodily injury or offensive touching).
88
NIED ZONE OF DANGER 😾
1) creates a foreseeable risk of physical injury to the plaintiff through causing a threat of physical impact that leads to emotional distress.
> Here SHE HAS TO BE IN ZONE OF DANGER, a foreseeable P.
> must suffer some physical manifestation of emotional distress (although a SEVERE SHOCK to the nervous system that causes physical symptoms is sufficient).
- note: if facts say needed medical treatment for chock, it is enough.
2) immediately perceive your facility member suffer serious injury or death.
> no zone of danger issue, must be perceiving at the real time. CAREFUL HERE, IF SAYS ZONE OF DANGER, THIS DOES NOT APPLY
3) business thing
> no zone of danger
89
What is the remedy of the conversion?
fair market value of the damaged/taken thing at the time of conversion (+D can keep the thing he took)
90
Trespass to land
causing anything tangible to cross P's property! (can be a cat, snowflake, dust, anything)
note: thinking that it is yours (mistake of possession) is not a defense.
91
What is the state of mind requirement for intentional torts?
intent = SUBSTANTIAL CERTAINTY (high likelihood) that doing something will cause the result
- trespass to land
- trespass to chattels/conversion
- IIED
- false imprisonment
- assault
- battery
92
for intentional tort questions, what answer choice is ALWAYS wrong!
- talking about HARM => do not need harm (damages)
93
Private necessity defense
```
- enter the land of another to avoid greater harm to
> you
> your family
> 1 member of the community
> your thing
```
(must pay for the damage you caused)
94
What does NOT matter with international torts
- due care
- reasonable percussion
- foreseeability
- damages (if P was actually hurt)
95
When can you recover for NIED without showing any physical damages?
exception!
- mishandling a corpse
- false report of death
- business thing?
96
Cannot use deadly force to protect your property
- IF you are not home
+ applies to unoccupied business (if you move out of business, cannot keep deadly security stuff on!!!)
- note: does not matter if the v was a trespasser, thief that came to steal your property - cannot use deadly force if you are not occupying the thing.
97
Is there an exception to negligence per se?
Yes
- emergency (driving pregnant to hospital)
- complying would be more dangerous
- impossibility
98
Duty owed to invitee
- duty to inspect
| - duty to make safe
99
when the invitee exceeds the status as an invitee and goes to areas not authorized
=> his status drops to anticipated trespasser
Duty: only warn of known artificial conditions that are dangerous!
- no duty to inspect
100
J&S liability
2 or more tortious acts combine to proximately cause INDIVISIBLE injury to P, each D is JS liable to P for the full amount.
careful - if accident injury 1, then, unrelated thing combines and causes injury 2
1) JS liable for both injuries
2) JS liable only for 2 cuz did not participate in 1 at all.
101
duty to inspect in Strict Products liability
does NOT matter
102
assumption of risk defense to products strict liability
do not get confused by this: this is a defense
ONLY - if P KNOWS clearly of all the risks and says okay I still will use this for this reason.
103
can P's contributory negligence reduce liability in strict liability?
Yes, but not a defense!
Can reduce recovery, but not get rid of it.
104
if wild animal
> SL - cannot be domesticated! - can be a cutie bear with no teeth
can recover if you get hurt by the animal or when running from such animal.
105
what privacy torts require publication?
- commercial misappropriation
- false light
- public disclosure of private fact
DO NOT NEED PUBLICATION FOR
- intrusion into person's seclusion
106
defenses for nuisance
- hypersensitive P ✅
| - coming to the nuisance ❌
107
in strict liability, whether a thing is inherently dangerous
is a question of fact, not law => jury decides this.
108
comparative negligence
In most pure comparative negligence jurisdictions, the same comparative fault rules will apply whether the action against the manufacturer is based on negligence or strict liability.
109
conversion damages
The market value of the property at the time of the conversion, plus interest from that date.
110
do medical professionals have a duty to warn third parties about patient's suicidal thoughts?
No, Tarasof duty extends to reporting harm to third parties.
so if a patient commits suicide, family cannot claim emotional distress
111
can you claim defamation if they say bad stuff about you in response to your letter, inquiry etc.
careful: it is possible that the inquiry may count as consent, which is a defense for defamation.
112
what is always not battery?
people are presumed to have consented to ordinary contacts of daily life, being tabbed on a back on the bus,.
this is not a battery even if P ends up suffering huge stuff.
113
is contributor negligence a defense to products SL?
no, but assumption of risk is! so if you are neglegent to not notice a snail in soda bottle, you are ok, but if you see the smail and still drink it => defense.
114
are owners of SL animals liable if acts of god set the animal loose?
Yes, SL liable.
115
Can a T sue LL for trespass?
yes, she is in legal possession - can sue for injunctions from entering, compensatory damages, punitive damages etc.
116
Does P have to show that she actually suffered economic harm to sue to for privacy torts?
NO! NO NO NO NO! emotional distress is enough! does not have to show economic harm like in defamation.
117
If hit a child and child mother does not take to doctor and condition gets worse, what is child liable for?
may be liable for whole damages because even though P has a duty to mitigate damages, child can argue that mother's negligence cannot be imputed to him.
Note: here eggshell P does not apply because this is about what happened AFTER injury, not the unforeseeable harms that may happen to P at the TIME of the injury.
118
Interference with business relations
To establish a prima facie case for interference with business relations, the following elements must be proved:
(i) existence of a valid contractual relationship between plaintiff and a third party or a valid business expectancy of plaintiff;
(ii) defendant's knowledge of the relationship or expectancy;
(iii) intentional interference by defendant that induces a breach or termination of the relationship or expectancy; and
(iv) damage to plaintiff.
Thus, a plaintiff has a cause of action for interference with probable future business relationships for which the plaintiff has a reasonable expectation of financial benefit.
On the other hand, an interferer's conduct may be privileged where it is a proper attempt to obtain business for the interferer, particularly if the interference is only with a prospective business relationship rather than with an existing contract.
119
IIED elements
> extreme and outrageous conduct
> with intent to cause emotional distress or or recklessness about the result of his actions
> causation
> damages - distress enough: non-physical ok
120
what happens when an invitee exceeds the scope of invitation.
usually loses invitee statues (do not have to warn about all dangerous, not visible condition and inspect)
However, still there is duty to warn about invisible dangers even if invitee is a trespasser now (anticipated)
especially if the owner knows about the danger and know that the there is a trespasser who does not know about it and fails to warn him.
121
how can you phrase "unforeseeable harm" to avoid negligence?
can say: "harm to P is outside D's negligence duty"
122
if have a situation where service k, and A got sick and could not work for a while. To analyze if A can sue to enforce the k, what is at issue?
the issue is whether there was a substantial breach, like whether not working for a while was material to be a breach.
Factors to consider:
> prospect that A will cure the breach
> are damages available to compensate non-breaching?
> degree to which the breach substantially deprived A of the benefit. (look for stuff like it was super hard to find replacement at that price).
what is irrelevant?
> if non-breaching offered A a replacement job
123
Can we reduce damages if P was able get some money from collateral sources?
No! Absent a statute, damages are not reduced or mitigated because of benefits received from collateral sources (e.g., health insurance).
124
is negligent publication enough for publication?
Sure, so do not pick and answer saying "no publication" if D was just not negligent.
125
governmental, municipal immunity from tort actions
Where municipal immunity still exists, courts have limited its scope by differentiating between "governmental" and "proprietary" functions of the municipality.
If the municipality is performing a function that might as well have been provided by a private corporation, the function may be construed as a proprietary one and no immunity will attach.
The inference that a function is proprietary will be strengthened where the city collects revenues by virtue of providing the service.
126
what type of duty does the owner owe to a known trespasser
duty of reasonable care to avoid injury to trespasser.
foreseeable harmful effect of a specific trespasser.
127
strict liability defense
assumption of risk => so answers that say P will win on strict liability theory BECAUSE HE DID NOT KNOW OF THE DEFECT are correct because they negate the assumption of risk defense by manufacturing people.
128
Joint and several liability and apportioning of the harm
When 2 or more Ds cause harm, and cannot tell how caused how much harm => JS liability applies, so both are liable for the whole harm. SO IF HAVE A CASE WHERE CANNOT APPORTION THE HARM => USE JS
note: correct answer choice here can say "wrongdoers, not the v must bear the burden of impossibility of apportioning the harm."
Note: if can clearly apportion the harm, JS liability may not apply.
129
Can D be liable for knowing that the product they use is defective and failing to do a minimum thing to make it safe?
Yes, this is not a SL products liability, so look for facts that show that a reasonable person would do the minimum to make the thing very safe, especially if he knew it was dangerous.
130
Can a negligent P use res ipsa?
No, to use res ipsa, p must be free of negligence.
131
do you have to show actual damages for defamation d A is called "A thief" privately, but negligently so others could hear?
NO, thief is a criminal act => so this falls under the slender exceptions where no damages must be shown - criminal act, loathsome disease, sexual misconduct, stuff relation to D's profession.
Also, if yell i private but foreseeable that others can hear => enough for defamation.
132
P reads signs to not enter cuz construction company is making explosions, enters and gets hurt. What defense does D have
Complete assumption of risk.
Note that contributory negligence is not a defense for SL. so just walking without noticing the sign would not be enough.
133
Can P bring a nuisance claim if D is not negligent, there is no strict liability or intentional tort
NO, careful! nuisance is not a stand alone tort. Usually goes with something.
Mostly attached to intentional torts, cuz D is aware of its actions, or is negligent - breaching standard of care.
So if there is no fault at all - nuisance cannot succeed even if it is horrible and P is suffering.
134
are words enough for assault?
NO!!! need some physical act. !!!
135
Is contributory negligence defense to intentional torts?
NO! Contributory negligence is a defense to negligence actions but not to intentional torts actions.
Battery is an intentional tort for which contributory negligence is not a defense.
136
is there a first amendment defense for privacy torts?
First Amendment likely prohibits recovery for this breach of invasion of privacy when the published matter is newsworthy UNLESS the plaintiff establishes that the defendant acted with actual malice (knowledge of falsity or reckless disregard for the truth),
137
can P use res ipsa against multiple D's?
Res Ipsa Elements:
1) event that does not happen without negligence
2) event was in D's exclusive control
3) P did not cause the event to occur
No, if a few D's, unless P can show that Ds jointly engaged in tortuous conduct, cannot use res ipsa against one of them randomly.
note alternative causes will not work either unless P can show that ALL Ds were negligent.
CAREFUL - IN MEDICAL CASES courts apply exclusive control liberally and allow res ipsa where P cannot tell who actually had control over her because she was unconscious (Ybarra) + construction contracts!
138
IIED to a third person elements
(1) the plaintiff was present when the injury occurred to the other person;
(2) the plaintiff was a close relative of the injured person; and
(3) the defendant knew that the plaintiff was present and a close relative of the injured person.
139
in an abnormally dangerous activity case, does it matter if D is a manufacturer or seller?
NO! this only matters in products struct liability.
140
Conversion v Embezzlement
Even if got the possession lawfully, if is paid off already and you must immediately return are won't return => this is conversion
P is entitled to FMV at the time of the conversion.
This is not embezzlement
141
can transferred intent turn assault into battery?
Yes, Under the transferred intent doctrine, an intent to cause an assault (intent to cause apprehension of imminent harmful or offensive contact) will satisfy the intent requirement for battery when the other elements of battery are present.
142
is not knowingly building a few inches a trespass?
Yes! tespass elements
(i) an act of physical invasion of the plaintiff's real property by the defendant,
(ii) intent by the defendant to bring about a physical invasion of the property, and (does not mean intent to go on someone else's property, can be a mistake).
(iii) causation.
143
Can a person recover actual damages and NIED?
Usually no, unless it is a personal injury case.
So it appears that does not have to show emotion related physical damages in this case.
144
indemnity elements V. contribution
INDEMNITY involves shifting the entire loss between or among tortfeasors, and is available where:
(i) there is a contractual promise to indemnify;
(ii) there is a special relationship between the defendants that would allow for vicarious liability; or
(iii) the defendant is a supplier in a strict products liability case who is liable to an injured customer, thus giving the supplier a right of indemnification against previous suppliers in the distribution chain.
In addition, some states allow a joint tortfeasor to recover indemnification from a co-joint tortfeasor where there is a considerable difference in degree of fault.
CONTRIBUTION
When two or more tortious acts combine to approximately cause an indivisible injury to a plaintiff, each tortuous actor will be jointly and severally liable for that injury.
Joint and several liability permits a plaintiff to recover the entire judgment amount from any defendant.
Contribution allows a defendant required to pay more than his share of damages to recover from the other jointly liable parties for the excess. In other words, contribution apportions responsibility among those who are at fault
145
can warranty of merchanbility be waived?
Yes, but both must agree - seller cannot randomly put a disclaimer in the box
The warranty will not be disclaimed because, to be effective, a disclaimer must be part of the offer and acceptance process or must be agreed to by the buyer as a modification. Here, the "disclaimer" was in the box, and the consumer did nothing to accept the disclaimer.
146
recommending person's qualified privilege
As a former employer responding to queries of a prospective employer about a job applicant, the doctor has a qualified privilege. Such a privilege is not absolute; it exists only if exercised in a reasonable manner and for a proper purpose.
The privilege may be lost if
1) the speaker made a statement not within the scope of the privilege or
2) if the speaker acted with actual malice (i.e., knowledge that the statement was untrue or with reckless disregard as to its truth or falsity).
147
When can a rescuer recover?
All of the circumstances will be considered when evaluating the conduct of the rescuer, including the
> excitement of the accident and the speedy response of the rescuer.
> The emergency situation is one of the factors taken into account when evaluating the plaintiff's conduct
A rescuer is a foreseeable plaintiff as long as the rescue is not reckless; hence, the defendant is liable if he negligently puts himself in peril and the plaintiff is injured attempting a rescue.
A plaintiff may take extraordinary risks when attempting a rescue without being considered contributorily negligent.
148
wrongful birth action
if doctor wrongly diagnoses inheriting dieisese, and couple gets pregnant again, can sue doctor for losses they will gain in taking care of the child, because had they known, they would not conceive child 2.
