Torts Essay Flashcards
(179 cards)
1
Q
Negligence
A
To hold a defendant liable for negligence, the plaintiff must establish that the defendant owed a duty to plaintiff, breached that duty, the breach was the actual and proximate cause of the plaintiff’s harm and the plaintiff suffered damages
2
Q
Duty
A
Under the majority, a duty is owed to plaintiffs within the foreseeable zone of danger. Under the minority, a duty is owed to all persons harmed by defendant’s conduct.
3
Q
Majority (analysis)
A
Here, the zone of danger is [ facts est. ZOD]. D created the ZOS by [negligent thing D did that created danger]. Plaintiff [was/was not] in the ZOD because
4
Q
Minority (analysis)
A
Here, plaintiff is a person injured by defendant’s conduct because
5
Q
Standard of Care - RPP
A
The standard of care owed by D to P is that of a reasonably prudent person under similar circumstances measured by an objective standard. However, the SOC owed may change when certain types of Ds are involved or a statute defines specific SOC as a matter of law (Negligence per se).
6
Q
Affirmative Duty to Act
A
In general, there is no affirmative duty to help others unless there is a special relationship with the plaintiff or one starts to act.
7
Q
Special Duty - Children
A
Children <5 owe no duty, Children >5 held to SOC of a child of similar age, experience, and intelligence.
8
Q
Special Duty - Wrongful Life / Wrongful Birth
A
Wrongful life = no duty. Wrongful birth = a duty to diagnose a defect and to properly perform a contraceptive procedure.
9
Q
Special Duty - Pure Economic Loss
A
No duty to avoid unintentional infliction of economic loss on another. There is no recovery for pure economic loss unless there is physical injury or property damages.
10
Q
Special Duty - Professionals
A
Are legally obligated to exercise the skill and knowledge normally possessed by other members of the same profession in good standing. A Dr needs consent and disclosure.
11
Q
Special Duty - Firefighters Rule
A
Firefighters, police officers and other emergency personnel injured in the line of duty cannot sue for negligence if the resulting injury stemmed from the risks inherent in their work.
12
Q
Special Duty - Common Carrier/ Inn Keeper Guest
A
Under CL, and modernly in some jurisdictions, common carriers and inn keepers are held to the highest duty of care, liable for slight negligence, consistent with practical business operations.
13
Q
Special Duty - Landlord Tenant Guest Duty
A
No duty is owed by a landlord for a third party’s injury due to a dangerous condition on the premises in the possession and control of the tenant absent a showing the landlord had actual knowledge of the dangerous condition and the right and ability to cure the condition.
14
Q
Special Duty - Lessor/lessee
A
A lessee has a general duty to maintain the premises; however, the lessor must warn of existing defects of which they are aware or has reason to know, and which they know the lesee is no likely to discover on a reasonable inspection.
15
Q
Special Duty - Rescuer Doctrine
A
The original tortfeasor is liable for injury suffered by someone who attempts to rescue another in peril due to the tortfeasors negligent conduct when: (1) D was negligent to the person being rescued, (2) the peril or appearance of peril was imminent, (3) a reasonable person would conclude that a peril existed, and (4) the rescuer acted with reasonable care.
16
Q
Special Duty - Premises Liability
A
The duty owed by a landowner to a potential plaintiff depends on the status of the individual on the land: Trespasser; licensee; or invitee.
17
Q
Premises Liability - Undiscovered Trespasser
A
Is a person who enters the land possessor’s property without valid consent or necessity; no duty is owed.
18
Q
Premises Liability - Known Discovered Trespasser
A
A duty is owed to a discovered trespasser to warn of or make safe, artificial conditions known to the landowner that pose a threat of death or serious bodily harm.
19
Q
Premises Liability - Licensee
A
(e.g. Social Guest) enters the land with the landowner’s permission for the licensee’s own purpose or business, rather than the landowner’s benefit. The landowner has a duty to warn of or make safe, known hidden dangers, artificial or natural, on the land that pose an unreasonable risk of harm that the licensee is unlikely to discover.
20
Q
Premises Liability - Invitee
A
is a person who is entitled on the property for a purpose connected with the business of the landowner or enters the land as a member of the public for purposes of which land is held open to the public. A duty is owed to make reasonable inspections to discover non-obvious conditions and thereafter make them safe. A warning is sufficient to make them safe. An invitee may lose their status if they exceed the scope of their invitation.
21
Q
Premises Liability - Rowland v. Christen
A
Regardless of the status, the possessor owes everyone the SOC of a reasonable prudent land possessor.
22
Q
Premises Liability - User of Recreational Land
A
A landowner who permits the general public to use their land for recreational purposes without charging a fee is not liable to individuals who suffer an injury unless the landowner willfully and maliciously failed to guard against or warn of known dangers.
23
Q
Premises Liability - Attractive Nuisance Doctrine
A
A duty is owed to child trespassers to warn of, make safe, artificial conditions on the land provided that: (1)the artificial condition exists in a place that the possessor has reason to know that children are likely to trespass, (2)the possessor has reason to know that the artificial condition poses an unreasonable risk of death or serious bodily harm, (3) the children due to their age cannot appreciate the danger, (4) and the risk of harm outweighs the expense of making the condition safe.
24
Q
Breach of Duty
A
A breach of duty occurs when one falls below the standard of care established supra. P has the burden of proof beyond the preponderance of the evidence.
25
Breach - Constructive Notice
Dangerous conditions continuous or easily foreseeable means that the D should have been aware of the conditions and exercised reasonable care.
26
Breach - Reasonably Prudent Business
A business breaches when they fail to act as a reasonably prudent business of an entity of similar size, experience and location.
27
Breach - Negligence per Se
Negligence per se establishes that a duty was owed and defendant breached that duty. A defendant is liable under negligence per se when D violated a statute, the P belongs to a class of persons the statute aims to protect, and the P suffered the type of harm the statute aimed to prevent.
28
Breach - Res Ipsa Loquitur
The doctrine of re ipsa may be used to establish breach in situations where the events lead to an inference that the D was likely negligent. A party can rely on this doctrine where: (1) the event is the type that does not ordinarily occur in the absence of negligence; (2) the instrumentality was in the D's exclusive control, and (3) the P could not have caused the accident.
29
Causation
Defendant's breach must be the actual and proximate cause of P's injuries.
30
Actual Cause
To prove actual cause the P's injury would not have occurred but for the D's breach. If "but for" cannot be shown then most courts are willing to implement the substantial factor test.
31
Actual Cause - Concurrent Cause
When two acts combine to cause an injury, but neither act alone would have been sufficient the actors are jointly and severally liable.
32
Actual Cause - Joint Cause
Two acts commingle and either one would be sufficient to cause the injury ( substantial factor test). Actors are jointly and severally liable. If a liable party pays more than their fair share, that party can seek contribution.
33
Actual Cause - Superseding Cause
Superseding cause severs the causal connection.
34
Proximate Cause
D is liable for foreseeable results. Results are foreseeable when they are normal incidents of and within the increased risk of defendant's act. [It is the type of injury that might normally happen from D's negligent conduct].
35
Damages
D could be liable for medical costs incurred before trial and future costs, loss of earnings incurred before trial and future loss, general pain and suffering, and property damage. Future damages may require expert testimony. Assuming the P prevails, the cause of action for negligence, then the spouse will have a claim for loss of consortium and can recover damages from before and after trial.
36
Damages - Joint and several liability
Each party is independently liable for the full extent of the damages stemming from the act. The P may collect the full value of the judgment from anyone of them. However, if the actions are independent, the plaintiff's injury is divisible, and it is possible to identify the portion of injuries caused by each defendant, then each will only be liable for their portion.
37
Joint & Several - Contribution
The defendant 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 (usually proportional to relative fault).
38
Joint & Several - Indemnity
One who is held liable for damages caused by another simply because of his relationship to that person may seek indemnification from the person whose conduct actually caused the damages. (available in contract, vicarious liability, and strict liability).
39
Wrongful Deal Statute
Recovery in a wrongful death action is allowed only to the extent that the deceased could have recovered in a personal injury action had he lived. It is limited to pecuniary losses such as loss from support of : household services, anticipated financial support, attention and affection.
40
Survival Statute
Creates an independent cause of action on behalf of the estate. It allows the estate to be awarded damages that the deceased could have recovered if they had recovered from the injury such as loss of earnings, medical expenses, damage to personal property.
41
Defense negligence
While under the traditional rules of contributory negligence and assumption of the risk a plaintiff's conduct could be barred from recovery, most jurisdictions now follow the modern rule of comparative negligence, whereby plaintiffs recovery is merely reduced according to the percentage of their fault.
42
Defense - Contributory Negligence
Contributory negligence is conduct on the part of the plaintiff, which results in his injury and falls below the SOC which is required for their own protection. It is a complete bar to recovery, unless the D's conduct was intentional or grossly negligent or had the Last Clear Chance to avoid the accident.
43
Defense - Comparative Negligence
In "modified" jurisdictions, so long as the plaintiff's negligence remains less than the D's negligence then P may recover. In "pure" jurisdictions, the P's recovery is reduced by any percentage that P is found negligence even if P is more negligent than D. In both, the P's
44
Defense - Assumption of the Risk
The plaintiff must have (1) actual knowledge, (2) appreciate the risk, and (3) voluntarily encounter the risk. (involuntary would be if they had no other options).
45
Negligent Infliction of Emotional Distress (NIED) - 3 types
When the P's damage is only emotional distress they may have a claim for NIED. There are 3 ways to recover: (1) Zone of danger; (2) bystander Liability; and (3) special relationship.
46
NIED - Zone of Danger
The p can recover for NIED if the D negligently caused a threat of physical impact; the P was within the zone of danger of the threat of physical impact, and the threat caused emotional distress.
47
NIED - Bystander Liability
The p bystander can recover for NIED if: (1) the D negligently inflicted bodily injury to another; (2) the p is closely related to the person injured by D; (3) the p was present at the scene of injury; and (4) the p personally observed the injury occur. Needs to have a physical manifestation of symptoms, that would not be anticipated in a disinterested witness.
48
NIED - Special Relationship
The P can recover for NIED in certain circumstances where a preexisting relationship exists between the D and P (e.g. Dr/Patient). This arises when the D negligently mishandles a corpse or the D provides false medical information.
49
Nuisance
Nuisance can be intentional, negligence, or strict liability.
50
Public Nuisance
An unreasonable interference with the health, safety, or property rights of the community at large. (e.g. air pollution, interference with use of public property). Recovery is only available if a private party suffers some unique damage not suffered by the general public.
51
Private Nuisance
A defendant is liable for private nuisance when they create a (1) substantial and (2) unreasonable interference with plaintiff's use or enjoyment of property that he (3) actually possesses or to which plaintiff has right of immediate possession.
52
Pvt. Nuisance - Substantial Interference
The interference is substantial if it is offensive, inconvenient, or annoying to an average reasonable person in the community. (i.e. hypersensitive plaintiff is not average or reasonable).
53
Pvt. Nuisance - Unreasonable Interference
The interference is unreasonable if the nature and gravity of the harm OUTWEIGHS the burden of preventing the harm and the usefulness of the conduct.
54
Pvt. Nuisance - Plaintiff Possessory Interest
Plaintiff possesses or has right of immediate possession of land when they own, lease, occupy, or control the property.
55
Pvt. Nuisance - Damages
Damages include depreciation in property value and resulting harm, including personal injury, and harm to property. Punitive damages may be imposed if defendant acted willfully, wantonly, recklessly, or with malice.
56
Nuisance - Injunction
Where damages are unavailable or inadequate, a court may grant an injunction. The injunction orders a D to stop, remove, refrain, or restrict a nuisance or abandon plans for a threatened nuisance. A court will find damages inadequate when the nuisance is continuing, or it will cause irreparable injury. In this instance, a court will balance the hardships associated with granting an injunction.
57
Nuisance: Injunction - Abatement
Abatement is a self-help remedy, plaintiff can abate the nuisance in limited circumstances.
58
Nuisance Defenses
(1) Necessity; (2) Coming to the Nuisance; (3) Zoning; (4) Contributory neg/ Comparative neg.
59
Nuisance Defense: Necessity
D performed an act that was in the greater good of the public and in doing so caused damaged to P.
60
Nuisance Defense: Coming to the Necessity
D may argue that P "came to the nuisance" by moving onto the land next to an already operating source of interference.
61
Nuisance Defense: Zoning
Legislative authority won't excuse a D from liability if the conduct was unreasonable.
62
Intentional Torts
(1) Battery; (2) Assault; (3) False Imprisonment; (4) Trespass to Land; (5) Trespass to Chattels; (6) Conversion; (7) Intentional Infliction of Emotional Distress
63
Intent
Intent requires only a volitional act with knowledge that there is a substantial certainty that the result will follow. A good faith mistake does not negate intent.
64
Transferred Intent*
Intent will transfer to the actual person harmed or tort caused if D intends to commit a tort but instead commits a different tort or harms a different person. This applies to: battery, Assault, False Imprisonment, Trespass to Land, and Trespass to Chattels.
65
Eggshell Skull plaintiff
A defendant is liable for the full extent of a plaintiff's injuries due to preexisting medical condition or vulnerability, even if the extent is unforeseeable.
66
Nominal damages
nominal damages acknowledges the wrong when plaintiff has no actual damages.
67
Battery*
Is the intentional harmful or offensive contact of another without their consent or legal privilege. Damages are presumed, special damages are recoverable. Contact is offensive when a reasonable person finds the contact offensive, unless defendant is aware the plaintiff is hypersensitive.
68
Battery - Analysis
Here, D [purposefully / knew to a substantial certainty he would] cause the P to suffer harmful or offensive contact because. D was a substantial factor because. The contact was harmful because. The contact was offensive because.
69
Assault*
Assault is the intentional act that places another in the reasonable apprehension of an imminent or harmful offensive contact without consent or legal privilege. Damages are presumed, special damages recoverable.
70
False Imprisonment*
False imprisonment is the intentional confinement or detainment of another to a bounded area for an appreciable time without consent or legal privilege. Damages are resumed, special damages recoverable. Direct or indirect threats ( no future threats, no moral pressure) force directed at plaintiff, or immediate family member or property. Must be aware of confinement.
71
False Imprisonment Defenses
(1) consent; (2) legal justification; (3) shopkeepers privilege
72
False Imp. Defense - Consent
If plaintiff consents to remain in bounded area, the defendant is not liable for false imprisonment.
73
False Imp. Defense - Legal Justification
If the D is authorized by law to detain or confine the P, the D is not liable.
74
False Imp. Defense - Shopkeepers privilege
A store owner may detain someone for a reasonable period of time (15-30 mins), based upon a reasonable suspicion that the person stole the store's property.
75
Trespass to Land*
Trespass to land is the intentional act causing physical invasion of plaintiff's real property(including air above and soil below) without consent or legal privilege. Nominal damages. Anyone with possessory rights in real property may bring an action.
76
Trespass to Land: Intent
D need only intend to enter the property with anything tangible. It is irrelevant whether D knew the land belonged to P. (e.g. bullet, pesticide, person - Not light, noise, vibrations). Mistake is not a defense.
77
Trespass to Land: Causation
The defendant must have caused the invasion to land or is a substantial factor in creating the physical invasion by person or object.
78
Trespass to Land: Damages
Plaintiff need not demonstrate actual damages, nominal will suffice. (Damages required for negligent, reckless or strict liability trespass). The standard measure of damages is the cost of removing the obstruction or value of land lost (rental value).
79
Trespass to Land: Defenses
(1) public necessity; (2) Private Necessity
80
Trespass to Land: Defenses - Public Necessity
An individual can interfere with another's real or personal property when it appears reasonably necessary to prevent a threatened harm to the community. If there is a public necessity to destroy a property by a governmental entity then the P has no right to compensation. D must pay actual damages.
81
Trespass to Land: Defenses - Private Necessity
An individual can interfere with another's real or personal property when it appears reasonably necessary to prevent a threatened harm to the individual, the individual's property, a third-person, or a third-person's property. If the other person's property is damaged as a result, the individual must pay damages. D has an obligation to compensate P even though the intentional entry onto land was privileged and thus not tortious. D must pay actual damages.
82
Trespass to Chattels*
Trespass to chattels is intentionally committing an act that damages or interferes with plaintiff's possessory right of chattels and causes damages without consent or legal privilege. Requires actual damages. Anyone with possession or the immediate right to possession may bring the action. Defendant need only have the intent to do the interfering act.
83
Trespass to Chattels - Damages
In dispossession, a plaintiff proves damages by (1) actual amount caused by the interference - diminution in value - or (2) loss of use - rental value. [ in use or intermeddling, the plaintiff may recover actual damages - repair costs].
84
Trespass to Chattels: Defenses
(1) necessity; (2) Recapture Chattels
85
Trespass to Chattels: Defenses - Recapture Chattels
A person may use reasonable force to reclaim personal property another wrongfully takes. If the taking was lawful (bailment) and the property possessor merely retains possession beyond the time the owner consents, only peaceful means may be used to reclaim the chattel.
86
Conversion
Conversion is the intentional possession or interference with plaintiff's chattel that is serious enough in nature or consequence to warrant that defendant pays the full value of the chattel. [ D exercises dominion and control].
87
Conversion - Seriousness
Factors to consider in determining seriousness: (1) duration and extent of interference, (2) defendant's intent to assert an inconsistent right, (3) defendant's good faith, (4) expense or inconvenience to plaintiff, (5) extent of harm to chattel.
88
Conversion - Damages
The standard measure of damages for conversion is (1) market value at the time of conversion, (2) plus interest, (3) plus expenditures in pursuit of the property.
89
Conversion: Damages - Conscious Wrongdoer
Plaintiff can waive the tort of conversion and sue in assumpsit: taking something that D knew they shouldn't could be conversion or restitution measured by the largest measure of recoverable damages such as recovering all profits D earned while using P's converted machine.
90
Conversion: Defenses
(1) bona fide purchaser from conversion; (2) recapture chattels
91
Conversion: Defense - Bona fide purchaser
Here, although [defendant] is a bona fide purchaser, D does not have legal title to the item since he purchased it from a thief, thus, plaintiff, who has legal title to the item, may seek replevin to recover possession of the item from defendant. Finally, P may recover damages measured by the loss of use during the wrongful detention of the property.
92
Intentional Infliction of Emotional Distress
Intentional infliction of emotional distress is when a person's conduct is so extreme and outrageous that it is a substantial cause of severe emotional distress. Must have severe damages. Transferred intent does not apply. [buzz words: acted in a manner that transcends all bounds of human decency; substantial factor; beyond what a reasonable person could endure]
93
Privilege of Arrest
A misdemeanor arrest without a warrant is privileged fi the misD is a breach of the peace and committed in the presence of the arresting party.
94
Defenses to Intentional Torts
(1) consent; (2) self defense; (3) defense of others; (4) defense of property; (5) hot pursuit; (6) necessity
95
Defenses to intentional torts - Self Defense
Non-deadly force may be used if D reasonably believed P was about to inflict imminent bodily harm, and the force was reasonably necessary to prevent harm. (force must be reasonably proportionate to threatened harm). Deadly force may be used if it is reasonably believed one is about to inflict death or serious bodily harm, but they must first try to retreat unless they are in their home. The initial aggressor is not entitled to self-defense, unless the other party responds to non-deadly force with deadly force.
96
Defenses to Intentional torts: Defense of others
A person may be privileged to use deadly force to protect another only to the extent the person defended would have been privileged to use deadly force under the circumstances. The traditional view protects Defense only if the person protected is actually privileged to defend herself. The modern view protects the actors' reasonable mistakes.
97
Defenses to Intentional torts: Defense of Property
One may use reasonable force but never deadly force to protect your property.
98
Defenses to Intentional torts: Hot Pursuit
One can retrieve chattel if it was immediately taken and use reasonable force.
99
Strict Liability Abnormally Dangerous Activity
To est. a prima facie case for strict liability, the plaintiff must show the defendant engaged in an abnormally dangerous activity, the dangerous aspect of which actually and proximately caused the plaintiff to suffer damages. ( tested previously as blasting, dynamite, fumigation services, providing high voltage electricity)
100
SL - Abnormally Dangerous Activities
An activity is abnormally dangerous if it involves a substantial risk of significant harm to person or property despite the exercise of reasonable care and is not a matter of common usage in the community. A matter is not of common usage when it is something out of place in the area where the defendant chooses to conduct it.
[here, D's activity poses a substantial risk of harm despite the exercise of reasonable care because]
101
SL: Harm results from Abnormally dangerous activity
The harm plaintiff suffers must result from the type of danger to be expected from the abnormally dangerous activity.
[Here, the injury resulted form the dangerous aspect because]
102
SL: abnormally dangerous activity - Actual and proximate cause
The dangerous aspect of the activity caused plaintiff's damages when the damages would not have occurred but for the dangerous aspect of the activity. The harm was foreseeable. D's liability can be cut off by unforeseeable intervening forces.
103
SL: abnormally dangerous activity - Damages
P must suffer actual damages to their person and property.
104
Property Damage from Trespassing Animals
Animal owners are strictly liable for reasonably foreseeable damages resulting from their animals' trespass on another's property.
105
Strict Liability: Wild Animals
An owner is strictly liable for injuries caused by wild animals' dangerous characteristic propensity to invitees and licensees, even those animals kept as pets, regardless of safety precautions taken by the owner. However, owners are generally NOT strictly liable for harm caused to trespassers.
Trespassers must prove negligence.
Discovered Trespassers must be warned of dangerous or wild animal or SL imposed.
106
Strict Liability - Domestic Animals
A keeper is not liable unless the keeper knows or has reason to know of the animal's unusually dangerous propensity.
107
Strict Liability - Intentional use of Vicious WatchDog
A landowner is not entitled to protect only his property with deadly force, including by a vicious watchdog, that he knows is likely to cause serious bodily harm, even in regards to trespassers.
108
strict liability: Animals - Actual Cause
The dangerous aspect of having a [dog] that has violent and dangerous propensities must be the actual cause of the injury.
109
strict liability: Animals - Proximate cause
D is liable for foreseeable results. Results are foreseeable when D has scienter of the animal's dangerous propensity.
110
SL: Animals - Defense: Contributory
In some states, contributory negligence is not a defense if plaintiff negligently failed to realize the danger or guard against it. However, if plaintiff knew of the danger and their unreasonable conduct was the very cause of injury, then this is a type of assumption of the risk and will apply.
111
SL: Animals - Defense: Comparative Negligence
In some jurisdictions, plaintiff's recovery may be reduced if they were negligent in failing to take precautions.
112
Products Liability: theories of recovery
A products liability can be brought under theories of: intentional tort, negligent product liability, strict liability in tort and warranties.
113
Strict Product Liability: Prima Facie
The prima facie case for a products liability claim based in strict liability includes: a commercial supplier of a product, producing or selling a defective product, actual and proximate cause, and damages. The plaintiff must prove the defect existed when the product left the defendant's control. For liability to attach, the product must reach the plaintiff without substantial alteration. Generally, privity between the parties is irrelevant except for certain warranty theories of liability.
114
Strict Product Liability Rule
A commercial supplier who places a defective product in the stream of commerce is strictly liable for injuries caused by the product, if it was a defect by: manufacturing error, by design, by failure to warn and the plaintiff suffered actual damages
115
SPL: Commercial Supplier
A manufacturer, supplier, or distributor (not casual seller) has an absolute duty to supply safe products. A commercial supplier is a seller who places a product into the stream of commerce and may be liable in tort for injuries caused by the defective product. Moreover, privity is not required - users, buyers, and bystanders can sue a commercial supplier.
116
SPL: Breach - Production or Sale of Defective Product
A breach occurred if defendant supplied a defective product at the time of sale. Here, product has potential [manufacturing/ design/ warning] defects.
117
SPL: Manufacturing Defect
If a product differs form the way the manufacturer intended, and emerged more dangerous than products made properly.
[ Here, the product emerged from manufacturing different from and more dangerous than products made properly because.......the product fails to perform as safely as the ordinary consumer expects because]
118
SPL: Design Defect
A design defect occurs when all products on the assembly line are the same, and have the same inherently dangerous condition. Plaintiff has the burden of proof.
A p can prove a product's design is defective by pointing out reasonable alternative design that offers a better balance of costs and benefits. Usually this better balance means that the alternative design is safer without being significantly more expensive or less useful than the design the defendant used. The manufacturer cannot insulate itself from liability by warning about the defects.
Giving consumers of a safer design option and the nonsafe option does not remove strict liability.
119
SPL: Inadequate Warnings
A warning defect exists when the foreseeable risk of harm could have been reduced or avoided by adoption of reasonable instructions or warnings. A good warning should: get the users attention, explain the hazard, show how to avoid the hazard. To prove failure to warn defendant must have known or should have known of the risk or danger and that is not apparent to an ordinary consumer.
120
SPL: Inadequate Warnings: Unavoidably Unsafe Product
If the product cannot be made safe for its ordinary use (e.g. chainsaw, firearms) a manufacturer must give proper instructions for use, and adequate warnings of known dangers.
121
SPL: Inadequate Warnings: Learned intermediary
A prescription drug manufacturer satisfies its duty to warn the patient (i.e. user, buyer) by informing the prescribing physician of a problem with the drug. This does not apply when the manufacturer is aware the drug will be dispensed without healthcare provider.
122
SPL: Inadequate Warnings: Government Safety Standards
A product's noncompliance with government safety standards establishes that it is defective, while compliance with safety standards is evidence - but not conclusive - that the product is defective.
123
SPL: Breach : Res ipsa Loquitur - Defective Product Lost or Destroyed at time of Incident
The breach may be inferred under res ipsa doctrine, if the plaintiff proves a product defect was a kind that ordinarily occurs as a result of a product defect, and was not solely the result of some cause not in existence at the time of sale or distribution.
124
SPL: Actual Cause
To show actual cause, plaintiff must trace the harm suffered to the defect in the product that existed when it left D's control.
125
SPL: Proximate Cause
Proximate cause exists when plaintiff's damages are a foreseeable result of defendant's acts. The failure of an intermediary to discover the defect is not a superseding cause and will not cut off defendant's liability. Foreseeable misuse of the product will not cut off the defendant's liability.
126
SPL: Damages
The plaintiff can recover for personal injury and or property damages however, a plaintiff cannot recover for pure economic loss.
Accordingly, P may/may not recover for product liability under a SPL theory.
127
SPL: Defenses
(1) assumption of the risk; (2) Unforeseeable misuse
128
SPL: Defense - Assumption of the risk
Plaintiff may be denied recovery if plaintiff knew of the risk and voluntarily proceeded in the face of the risk.
A disclaimer for personal injury as a remedy limitation or waiver by a product seller or distributor does not bar or reduce a product liability claim for injuries.
129
SPL: Defense - Misuse
If a plaintiff negligently contributes to her injuries by misusing the product in an UNforeseeable way, plaintiff cannot recover at all.
130
Negligence Product Liability
In order for p to prevail in a products liability cause of action based on negligence, plaintiff must show duty, breach, actual and proximate cause, and damages.
131
NPL: Duty
A commercial supplier owes a duty of due care to all persons who may foreseeably be injured by their defective product(Cardozo). Common law extended due care only to those in privity of contract (Winterbottom v. Wright). Modern law extended liability to all foreseeable users(McPherson v. Buick).
Here, [company] was a manufacturer of [product]. They owed a duty of due care to inspect, discover and correct any defects associated with the use of its [product]. They further had a duty to warn potential users of all dangers and risks in its use. Plaintiff is a person injured by defendant’s conduct because [facts].
Thus defendant [did/did not] owe a duty of care under the majority / minority rules.
132
NPL: Duty - SOC
A defendant owes a duty to act as a reasonably prudent person / business. A court compares a business to an entity of similar size, experience, and location.
Here defendant owed a duty to [establish what a RPP would have done].
133
NPL: Breach
A breach occurs when the defendant fails to adhere to applicable standards of care. A commercial supplier breaches when they fail to act as a reasonably prudent [person/ business] when building, inspecting or selling a product, leading to the supplying of a defective product.
134
NPL: Breach - Res ipsa Loquitur
p may invoke res ipsa loquitur against the manufacturer if the error is something that does not usually occur without the negligence of the manufacturer.
135
NPL: Duty - Liability of Dealer
Retailers and wholesalers owe a duty of due care to their customers and foreseeable victims. But the majority view is that a dealer who buys from a reputable supplier or manufacturer with no reason to anticipate that the product is dangerous need make only a cursory inspection of the goods to avoid liability for manufacturing defects.
136
NPL: Breach - Design Defect
To prove a manufacturer's negligence resulted in a design defect, the p must show that those designing the product knew or should have known of enough facts to put a reasonable manufacturer on notice about the dangers of marketing the product as designed. A dealer has a limited duty as above.
137
NPL: Defenses
(1) assumption of the risk; (2) Misuse; (3) indemnity; (4) contribution
138
NPL: defense - Contribution
The defendant 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
138
NPL: Defense - Indemnity
Tortfeasor is entitled to indemnity when the (1) actual wrongdoer has a primary duty (2) by contract, (3) vicarious liability, (4) strict product liability, and (5) tortfeasor fails to discover or prevent actual wrongdoers conduct. One who is held liable for damages caused by another simply because his relationship to that person may seek indemnification from the person whose conduct actually caused the damage.
139
Product liability: Implied warranty of merchantability
The implied assurance from seller to consumer that the product is merchantable i.e. fair and average quality, can only be disclaimed at the time of transaction. Generally, plaintiff must be a buyer, member of buyer's family or household guest.
Here, the good is not generally [acceptable/ fit] for the ordinary purpose for which It is used because [facts]. [Plaintiff] is a proper plaintiff because they are the [buyer/ buyer family/ buyer’s household/ guest]. The same analysis for causation and damages applies as in strict product liability because the facts and rules are the same.
Thus, defendant breached the implied warranty of merchantability.
140
Implied warranty of fitness for a particular purpose
Fitness for a particular purpose when the Seller knows or has reason to know of a more particular purpose which the buyer expects the goods to fulfill, the buyer relies on the seller to pick suitable goods for the purpose, when the goods do not live up to the standard, the warranty is breached and the defendant is liable, even if the defendant is not at fault.
Here, defendant [knew/ had reason to know] the particular purpose for which [plaintiff] bought [product] because [ facts]. [product] was not fit for that purpose because [facts]. [plaintiff] is a proper plaintiff because they are the [buyer/ guest/ household]. The same analysis for causation and damages applies as in strict product liability because the rules and facts are the same.
Thus, defendant [did/ did not] breach the implied warranty of fitness for a particular purpose.
141
Express Warranty
Any affirmation of fact/promise, description, sample, or model relating to the goods, which becomes the basis of the bargain. When the product fails to live up to the standards expressed, the warranty is breached and the defendant is liable.
Here, defendant made an express warranty because [facts]. The promise was part of the basis of the bargain because [facts]. [product] failed to live up to that because [facts]. The same analysis for causation and damages applies as in strict products liability because the rules and facts are the same.
Thus, [defendant] [did/ did not] breach the express warranty.
142
Defenses to Breach of Warranties
Defenses include assumption of the risk and contributory/ comparative negligence to the same extent as above. In addition, Disclaimers of implied warranties may be effective as a defense (express are not disclaimable), and a plaintiff must notify the defendant within a reasonable time of the defect to recover ( laches).
143
Product liability: Misrepresentation
A seller will be liable for misrepresentation of facts concerning a product where the (1) statement is of a material fact concerning quality or uses of goods, and (2) seller intends to induce reliance by the buyer in a particular transaction.
144
Intentional Product Liability
If defendant intended that someone be injured by a defective product or knew to a substantial certainty that someone would be injured by a defective product, the defendant may be liable for battery to any harmed plaintiff.
As discussed above there is a defective product. Defendant [intended/ knew with substantial certainty] that someone would be injured by [product] because [facts].
145
Defamation
Defamation is a defamatory statement of or concerning the plaintiff, published to a third party that causes damages to plaintiff.
146
Defamation: defamatory language
Defamatory language diminishes respect or good will towards or deters association with a plaintiff. An opinion is actionable if the defendant implies a factual basis for that opinion. Innuendo language may qualify as defamatory if plaintiff pleads and proves extrinsic facts.
147
Defamation: Of and concerning plaintiff
A reasonable person must believe the defamatory language refers directly or indirectly to the plaintiff. (must be living person).
If the statement refers to a group whether someone can recover depends on the size of the group. If the group is small, each member may establish that the statement is about or concerning the plaintiff by alleging they are a member of that group; however if the group is large, no member can prove the statement is about him.
148
Defamation: Published to a third party
Publication of the statement is intentional or negligent communication to someone other than plaintiff who understands the statement is about plaintiff.
149
Defamation: Liability for Republication
The republisher of a defamatory statement is liable to the same extent as the original publisher.
150
Defamation: Damages
Libel (permanent form); Slander (spoken); Slander Per Se
151
Defamation: Damages - Libel
Libel is defamation in a permanent form, often published in writing. General damages for libel may be claimed without the requirement that special damages(specific economic loss) be proven.
152
Defamation: Damages - Slander
Slander is defamation through spoken word and requires the proof of special damages for there to be a recovery.
153
Defamation: Damages - Slander per se
A statement that claims plaintiff committed a crime of moral turpitude, has a loathsome disease, imputes chastity, or against one’s business or professional reputation, will be considered slander per se. Special damages presumed.
154
Constitutional Defamation
Whenever there is a matter of public concern the plaintiff must prove fault regarding the falsity of the statement.
155
Const. Defamation: Fault
The type of fault P must prove depends on whether they are a public or private figure. A public figure is one that achieves fame or notoriety or is in government office.
156
Const. Defamation: Fault - Public Figure
If p is a public figure, he must prove New York Times malice which requires a showing of knowledge that the statement was false or reckless disregard as to whether it was true. This is a subjective test requiring clear and convincing proof
157
Const. Defamation: Fault - Private figure
If the p is a private figure, then he must prove Gertz negligence which means he need only show negligence regarding the falsity of the statement or he may prove malice.
158
Const. Defamation: Damages
Private concerns allow for punitive damages without proving actual malice. When d is only negligent, only actual injury damages are recoverable. However, if a private plaintiff can show malice on the part of the defendant then damages may be presumed and plaintiff maybe able to recover punitive damages.
159
Defamation Defenses
(1) consent; (2) truth; (3) qualified privilege; (4) absolute privilege
160
Defamation Defenses - consent
Consent is a complete defense. A plaintiff expressly consents if by words or actions s/he manifests willingness to submit to defendant’s actions.
161
Defamation Defenses - Truth
Where plaintiff is a private figure falsity is presumed. Truth is a defense involving public figures.
162
Defamation Defenses - Qualified Privilege
Speakers may have QP for the following: reports of official proceedings; statements in the interest of the publisher such as defense of one’s actions, property, or reputation; statements in the interest of the recipient; and statements in the common interest of the publisher and recipient.
This privilege may be lost if the statement is not within the scope of privilege, or it is shown that the speaker acted with malice. D bears the burden of proving that a privilege exists.
163
Defamation Defenses - Absolute Privilege
D may be protected by an absolute privilege for the following: remarks made during judicial proceedings, by legislators in debate, by federal executive officials, in “compelled” broadcasts, and between spouses. An absolute privilege can never be lost.
164
Trade Libel
For a trade libel claim, the plaintiff must prove (1) false disparaging statement, (2) of or concerning plaintiff’s : (a) business property title, (b) business quality, (c) product quality, (3) published to a third party, (4) with intent, (5) to damage the business. Must Plead SPECIAL pecuniary damages.(no mental suffering damages).
165
Trade Libel Defenses
(1) truth; (2) competition
166
Trade libel Defense - Truth
If the disparaging statement is factually accurate, the defendant has a complete defense. (Competitive privilege allowed, Non Competitive situations require d’s honest belief in statement: defamation)
167
Trade libel Defense - Competition
Except for false allegations, a defendant who is a competitor of the plaintiff will not be liable for encouraging a third party to switch business to the defendant by generally comparing the defendant’s business property title, business, or product with the plaintiff’s stating or implying the defendant is better.
168
Interference with Business Relations
A defendant interferes with business relations when: a valid contractual relationship exists between p and a third party or a valid business expectancy of p; D’s knowledge of the relationship or expectancy; Intentional interference by d that induces breach or termination of the relationship or expectancy; and Damage to p.
P must prove actual damages from the interference, but may also recover mental distress damages and punitive (Clear & Convincing evidence) damages in appropriate cases.
Defense: Privilege d may be privileged depending on their relationship to third party, if p is a competitor and they are both pursuing prospective clients.
169
Invasion of Right to Privacy
1: appropriation of Plaintiff's Picture or Name
2: Invasion of Privacy/ Intrusion upon Seclusion
3: Public Disclosure about Prvt Facts
4: False Light in Public Eye
170
Appropriation of Plaintiff's Picture or Name
Unauthorized use by defendant of plaintiff’s likeness (picture) or name for defendant's commercial advantage(gain).
Except: Newsworthiness There is no liability for use of plaintiff’s name or likeness for the purpose of reporting news.
171
Invasion of Privacy/ Intrusion upon Seclusion
A defendant commits invasion of privacy when defendant commits the act of prying or intruding on plaintiff; the intrusion is something that would be highly offensive to a reasonable person; the thing to which there is an intrusion or prying is private. No Newsworthiness exception.
172
Public Disclosure about Private Facts
A defendant commits public disclosure of private fact when the defendant reveals private facts that are not a matter of legitimate public concern, the release is offensive to a reasonable person, and disclosure was to the public at large. (Public Activities are not objectionable I.e. announcing the mayor frequents strip clubs)
Except: Newsworthiness There is no liability if the private facts are newsworthy.
Defenses: Absolute and Qualified Privilege
173
False light in the public eye
A defendant commits false light when the defendant attributes viewpoints or ideas that plaintiff does not hold and such attribution is objectionable to a reasonable person. Includes mischaracterization of plaintiff’s views or conduct. If it is regrading a Matter of Public Concern then defendant must have actual malice or reckless disregard for the truth of the matter publicized. (note: this is the same as the constitutional considerations for defamation- No newsworthiness exception).
Defenses: Absolute and Qualified Privilege
174
Intentional Misrepresentation
misrepresentation of a past or existing material fact, knowingly or with reckless disregard to its truth or falsity(scienter), with the intent to induce p’s reliance, causing p to justifiably rely to his damage.
(Opinion is not a representation of fact unless: D represented they had special knowledge. )
Damages
P may recover only if actual damages, most courts use contract measure of damages, expectation damages (difference between the contracted item and the market value of the item), or consequential damages
175
Negligent Misrepresentation
A false misrepresentation made by D in a business or professional capacity, breach of duty owed toward particular plaintiff, causation, justifiable reliance by p upon the misrepresentation and damages.
No general duty to disclose except: (1) A fiduciary relationship; (2) D selling real property knows p is unaware of and cannot reasonably discover material information. (3) D’s utterance deceives p, then d is under a duty to inform p of true facts.
D needs to know the P would rely on the information. Foreseeability that it will be communicated to third persons may be sufficient to liability for Deceit, but in most jurisdictions, not neg misrep. Defense: Truth
176
Abuse of process
Use of criminal or civil process for purposes for which it was not intended: A p must prove: the existence of an ulterior purpose; a misuse use of process; and definite act or threat against plaintiff to accomplish the purpose.
Here, [defendant] instituted judicial proceedings against [plaintiff] because [facts]. The proceedings terminated in plaintiff’s favor because [facts]. The defendant lacked probable cause because [facts]. The defendant instituted the proceedings for an improper purpose because [ facts]. Plaintiff suffered damages because[ facts].
177
Malicious Prosecution: *mostly criminal.
Malicious prosecution requires (1) institution(such as filing police report to procure plaintiff’s arrest) of a criminal proceeding against a party for an improper purpose(not bring case to seek justice- malice), (2) claim in underlying case dismissed(based on merits not procedure) in plaintiff’s favor (3) insufficient probable cause to bring claim and (4) damages(i.e. expenses in defending care, reputational harm, emotional distress, punitive damages). Most jurisdictions extend malicious prosecution to civil cases.
damages : The harm to his reputation/litigation costs/possible punitive (Clear & Convincing evi) damages. IIED from the bringing of the proceedings.
Absolute Privilege: Prosecutors, judges, and law enforcement are absolutely privileged and cannot be sued for malicious prosecution, even when they act without probable cause.
178
Wrongful Institution of civil proceedings
one who takes an active part in the initiation, continuation or procurement of civil proceedings against another is subject to liability to the other for wrongful civil proceedings if he acts without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based, and expect when they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.
damages : The harm to his reputation/litigation costs/possible punitive (Clear & Convincing evidence) damages. IIED from the bringing of the proceedings.
