Torts MEE Flashcards

Question

Negligence: Explain Landowner's Standard of care for UNKNOWN TRESPASSER

Answer 1

HACK. Highly dangerous, Artificial, Concealed, and Known

Answer 2

must warn or make safe all dangerous concealed conditions that Landowner knows of.

Answer 3

duty to concealed, known or could have known with reasonable inspection hazardous conditions.

Answer 4

attractive nuisance doctrine- P must show (i) dangerous condition on the land that owner knew. (ii)he knew children could trespass (iii) condition likely to cause injury (iv)expense in remedying the situation is slight compared with magnitude of the risk.

Answer 5

breach is a failure to conform to the applicable standard of care. violation of statute? Negligence per se. Check if res ipsa loquitur

Answer 6

proof of violation of the statute is conclusive evidence of breach of duty. This is known as “negli¬gence per se.” Causation and damages must still be established.

Answer 7

comply would have been more dangerous to the actor and others * because of some incapacity (e.g., a sudden seizure); * the actor neither knew nor reasonably should have known that compliance with the law was required on the relevant occasion; * the actor could not comply with the law, despite reasonable efforts to comply; or * emergency

Answer 8

The accident causing the injury is a type that would not normally occur unless someone was negligent and The negligence is probably attributable to the defendant. P Can prove if can show that he had control over the instrumentality.

Answer 9

the plaintiff must show that the conduct was the cause of their injury. Actual cause (in fact) + proximate cause. Use joint and several liability for multiple Δ indivisible injury.

Answer 10

- “but for test”- The but-for test is satisfied if the victim’s injury would not have occurred without the actor’s breach of duty. - Merged causes (“multiple sufficient cause”)- Where several causes bring about injury, and any one alone would have been sufficient to cause the injury. - Unascertainable causes- This test applies when there are two acts, only one of which causes injury, but it is not known which one. D. must prove that he did not cause it.

Answer 11

An actor is liable only for those harms that reasonably foreseeably arise from her misconduct.

Answer 12

An intervening force is an additional act or force, besides the actor’s negligence, that contributes to the victim’s harm. If an intervening force is not reasonably foreseeable, it may break the causal chain and absolve the actor of liability. E.g. medical malpractice, rescuers, disease or injury… Two common superseding forces are (1) third parties’ crimes and intentional torts, unless the actor owes a duty to protect it and (2) situations in which the harm arises only after the reasonably foreseeable risk of harm from the actor’s negligence has abated.

Answer 13

if no physical harm will recover if: Bystander- A bystander outside the “zone of danger” of physical injury who sees the defendant negligently injuring another, REQ. 1. person injured was closely related, 2. P. present at the scene and 3. Personally observed or perceived the event.

Answer 14

the defendant creates a foreseeable risk of physical injury to the plaintiff. 2 req. – P. in zone of danger, and MUST SUFFER PHYSICAL SYMPTOMS.

Answer 15

- Duty to mitigate - Comparative - Contributory - Assumption of the risk

Answer 16

Contributory negligence is negligence on the part of the plaintiff that contributes to the plaintiff’s injuries. Exception: Last clear chance- the person with the last clear chance to avoid an accident who fails to do so is liable for negligence.

Answer 17

- Domestic- An owner is not strictly liable for domestic animals (including farm animals) unless they have knowledge of that particular animal’s dangerous propensities. Bull is not wild animal. - Wild- owner is strictly liable to licensees and invitees for injuries caused by wild animals.

Answer 18

- Abnormally dangerous activity- The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors. The activity is not a matter of common usage in the community.

Answer 19

P. must show: The defendant is a merchant, The product is defective, The product was not substantially altered since leaving the de¬fendant’s control, and P. foreseeable use of the product at the time of the injury. | Merchant, altered, Injury, defective, substantially (not)

Answer 20

The defendant will be liable if the plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect.

Answer 21

The plaintiff usually must show that the defendant could have made the product safer, without serious impact on the product’s utility or price.

Answer 22

A product may be defective as a result of the manufacturer’s failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent to users.

Answer 23

MISUSE exception- A defendant will not be held liable for dangers not foreseeable at the time of marketing. Many products are commonly misused in ways that could be considere foreseeable.

Answer 24

Express warranty- Any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty. Implied warranty- 2 warranties. Merchantability: which refers to whether the goods are of average acceptable quality and are generally fit for the ordinary purpose. Fitness for particular purpose: seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller’s skill

Answer 25

(generally: comparative negligence, contributory negligence, assumption of risk)

Answer 26

actor published, defamatory fact, concerning Π, damage P. reputation

Answer 27

Libel is defamation in writing or other media, particularly via mass communication.

Answer 28

Slander is defamation through spoken words. CLUB for slander per se (crimes, loathsome disease, unchasity-SEXUAL MISCONDUCT, business):

Answer 29

Constitutional limits: The United States Constitution may place an increased burden on defamation plaintiffs, depending on (1) whether the plaintiff is a public figure and, sometimes, (2) whether the subject of the defamatory statement is of public or private concern.

Answer 30

A public-figure plaintiff must prove (1) all traditional elements of defamation, (2) that the statement was false, and (3) that the statement was made with actual malice.

Answer 31

About Public concern plaintiff must prove (1) falsity and (2) the actor’s negligence concerning the statement’s truth or falsity. However, damages are presumed, and punitive damages are recoverable, only if the plaintiff proves actual malice. (b) If the defamatory statement involves a matter of purely private concern, then a private-figure plaintiff faces no constitutional restrictions

Answer 32

Consent, qualified privilege, substantial truth, absolute privilege

Answer 33

A qualified privilege arises only when there is a public interest in encouraging candor. The defendant bears the burden of proving that a privilege exists. Examples: references and recommendations, reports of public hearings or meetings, statements to defend someone, statements to those who are to take official action.

Answer 34

can never be lost – communication between spouses, Remarks made during judicial proceedings, by legislators during proceedings (even if not related to the proceedings), by federal executive officials, in “compelled” broadcasts.

Answer 35

occurs because of a special relationship between that party and the primary tortfeasor.

Answer 36

Employee- Under the doctrine, an employer (formerly called a master) is liable for the torts of an employee (formerly called a servant) committed within the scope of the employment. A principal generally is not liable for torts committed by an independent contractor.

Answer 37

Employers may be liable for their own negligence by negligently selecting or supervising their employees.

Answer 38

The general rule is that the employer is not liable for the intentional torts of an employee (for example, battery or assault). Intentional torts are not normally within the scope of employment. Exception: Torts within scope of employment.

Answer 39

Private nuisance is a substantial, unreasonable interference with another private individual’s use or enjoyment of property that the other individual actually possesses or has a right of immediate possession.

Answer 40

A parent is not vicariously liable for the tortious conduct of their child at common law. Note, however, that most states, by statute, make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount. - exception: for parent own negligence

Answer 41

Remedies: The plaintiff usually will be awarded damages. If the legal remedy of damages is unavailable or inadequate (for example, the nuisance will cause irreparable injury), injunctive relief will be awarded.

Answer 42

C – COMMERCIAL misappropriation of P’s name, likeness, or voice w/o P’s written permission (& compensation); taking commercial advantage of a living person’s reputation L – False LIGHT publicity that unreasonably places P in highly ofensive false light before the public, views or opinios that the person does not hold. I – INTrusion upon seclusion- claim forbids such acts as eavesdropping, spying, interception of phone calls . P – PUBLIC disclosure of highly offensive and deeply shocking private facts that are of no legitimate interest to the public. like you eat poop.

Answer 43

- “False light” exists where one attributes to the plaintiff views they do not hold or actions they did not take. The false light must be something highly offensive to a reasonable person under the circumstances. For liability to attach, the defendant must circulate the statement to the public at large.

Answer 44

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

Torts MEE Flashcards

(69 cards)