Term
| Are individuals who lack capacity (aka, crazy people, drunk people, children) liable for the intentional torts they commit? |
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Definition
| Yes. Incapacity is NOT a defense for intentional torts |
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Term
| What is transferred intent? |
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Definition
| Intent to commit a tort against one person is transferred to the other tort to the injured person |
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Term
| When does transferred intent apply? |
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Definition
-Assault
-Battery
-False Imprisonment
-Trespass to Land
-Trespass to Chattel |
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Term
| Prima Facie case for intentional torts |
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Definition
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Term
| What are the intentional torts to PERSONS? |
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Definition
-Battery
-Assault
-False Imprisonment
-Intentional infliction of emotional distress |
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Term
| What are intentional torts to PROPERTY? |
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Definition
-Trespass to land
-Trespass to chattel
-Conversion |
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Term
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Definition
| Harmful or offensive contact with plaintiff’s person (anything plaintiff is holding or touching; must be connected) |
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Term
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Definition
| Act by defendant that causes plaintiff a reasonable apprehension (knowledge) of imminent/immediate harmful or offensive contact [words alone are not sufficient; need overt act; conditional act is sufficient] |
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Term
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Definition
| Act by defendant that confines or restrains plaintiff to a bounded area (i.e., physical barrier, physical force, threats of force, failure to provide means of escape, arrest without a warrant, etc.) (if you can reasonably get out, not locked in and no false imprisonment) |
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Term
| Intentional infliction of emotional distress |
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Definition
| Intentional OR reckless act by defendant that amounts to extreme and outrageous conduct AND causes plaintiff severe emotional distress |
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Term
| What is outrageous conduct? |
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Definition
| Conduct that exceeds all bounds of decency |
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Term
| Are insults considered outrageous conduct? |
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Definition
| Insults are NOT outrageous unless there is a special relationship between P and D or D knows of a sensitivity of P |
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Term
| What are some special situations where the conduct is less than outrageous but a plaintiff can still pursue a claim for intentional infliction of emotional distress? |
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Definition
-Extreme business conduct (repeated methods of collection)
-Misuse of authority (school teachers threatening students)
-Special relationship situations (innkeepers or common carriers who owe special duties to patrons are sometimes liable for acts less than outrageous) -Known sensitivity of P. |
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Term
| How to prove severe emotional distress? How can a bystander recover for IIED? |
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Definition
No specific evidence is required; no requirement for physical symptoms. Just have to show evidence that the emotional distress was severe
A bystander may recover if:
-They were present when D did something extreme and outrageous
-The D is aware of their presence
-The plaintiff is a close relative |
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Term
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Definition
| Defendant must commit a physical invasion of the plaintiff’s real property; (plaintiff must be the possessor of the land) |
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Term
| Does defendant need to know he/she is trespassing for trespass to land? |
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Definition
| Defendant does not need to have knowledge he/she is trespassing just need physical intent to enter |
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Term
| Is there a requirement for damages for trespass to land? |
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Definition
| No requirement of damages required. It is presumed. |
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Term
| Examples of physical invasion in trespass to land |
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Definition
Entering land, flooding plaintiff’s land, throwing rocks onto land, or chasing 3rd persons onto it. Land = surface, below surface and above
Note: If no physical object enters land, NO physical invasion |
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Term
| Is mistake a defense to trespass to land? |
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Definition
| No, mistake is NOT a defense to trespass to land as long as the defendant intended the entry onto the land. |
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Term
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Definition
| Act by defendant that interferes with the plaintiff’s right of possession in the chattel (personal stuff); Examples of interfering include intermeddling (denting, striking) or dispossession (stealing); Remedy is cost of repair or diminution in value |
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Term
| Is mistake a defense to trespass to chattel? |
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Definition
| No, mistake is NOT a defense to trespass to chattel as long as the defendant intended to do the act of interfere |
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Term
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Definition
| Act by defendant that significantly interferes with the plaintiff’s right of possession in the chattel (personal stuff); Remedy is the full value of the chattel |
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Term
| Defenses to intentional torts |
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Definition
-Consent
-Self defense
-Defense of others
-Defense of property
-Recapture of chattels
-Necessity
-Discipline |
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Term
|
Definition
| Consent is a defense for ALL intentional torts but only those with capacity can consent. Children can consent to age appropriate behavior. |
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Term
|
Definition
Express – declaration giving defendant permission; however, express consent is void IF obtained through duress or fraud (can be a lie or active concealment).
Implied:
-From custom or usage – if certain invasions are routine, law assumes plaintiff consents to those invasions (i.e., minor bumping in a crowd or playing sports with physical contact)
-From law: emergency situation where person cannot consent and contact is necessary to save death or serious bodily harm
CANNOT exceed the scope of consent given. |
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Term
|
Definition
• D has reasonable belief he is being or about to be attacked, he may use force reasonably necessary to protect from injury
Note:
D will only be able to invoke privilege IF defendant is responding to a threat that is imminent or in progress; No revenge, no retaliation. Reasonable mistake does NOT defeat the privilege... if D was mistaken but reasonably believed he was being attacked, he can still assert this defense. This extends to third party injuries... if reasonably defending oneself and accidentally injure a bystander, he is protected by the defense |
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Term
| Can the initial aggressor assert the privilege of self-defense? |
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Definition
| The initial aggressor CANNOT assert this privilege against the other party’s reasonable use of force in self-defense. However, if the other uses deadly force against an aggressor who only used non-deadly force, aggressor may defend himself with deadly force. |
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Term
|
Definition
| Need reasonable belief that the person aided would have the right of self-defense. |
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Term
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Definition
| One may use reasonable force to prevent the commission of a tort against his/her property (Deadly force never allowed) |
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Term
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Definition
| One may use only peaceful means to recover chattel but force may be used to recapture a chattel only when in “hot pursuit” of one who has wrongfully obtained the chattel (once in possession of innocent party, can’t recapture). Before force can be used, must demand the return of the chattel unless it would be dangerous or futile |
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Term
|
Definition
| A person may interfere with real or personal property of another where interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and where the threatened injury is substantially more serious than the invasion |
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Term
| What are the two types of necessity? Who is liable for each type? |
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Definition
Public necessity – act for the public good; defense is absolute and thus, he is not liable for resulting damage
Private necessity – act is solely to benefit a limited number of people; defense is qualified and actor must pay for any injury he causes
o No nominal or punitive damages
o Cannot throw person off land as long as emergency is continuing |
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Term
|
Definition
| Parent or teacher may use reasonable force in disciplining children, taking into account age/sex of the child and seriousness of behavior |
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Term
|
Definition
-Defamatory statement
-of and concerning plaintiff
-published to a 3rd party
-damage to the reputation of the plaintiff |
|
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Term
| "Defamatory statement" definition |
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Definition
-Statement that adversely affects reputation (name calling is NOT defamatory)
-Must be a factual claim; if based on opinion, it can be considered defamatory if it appears to be based on specific facts)
-Statement can be words, pictures, satire, drama, etc. of a living person, corporation, partnership, etc. |
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Term
| "Of and concerning the plaintiff" definition |
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Definition
| Must identify the plaintiff to a reasonable person. Colloquium – no clear reference to plaintiff but introduction of additional extrinsic facts would lead a reasonable person to perceive the statement as referring to the plaintiff. |
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Term
| Who can recover in group defamation? |
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Definition
-All members of small group: each member may establish that the statement was made of and concerning him by alleging that he is a member of the group
-All members of a large group: no member of the group may establish this element
-Some members of small group: plaintiff can recover if a reasonable person would view the statement as referring to the plaintiff |
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Term
| "Published to a 3rd party" definition: |
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Definition
| Publication = communication (either intentionally or negligently) to a 3rd person who understands it |
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Term
| Repetition of defamatory statement is considered: |
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Definition
| A separate publication. However, there is a single publication rule in which all copies of a newspaper, magazine or book are treated as one publication |
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Term
| Example of primary publisher: |
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Definition
|
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Term
|
Definition
| Repeats defamatory statement |
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Term
| Example of secondary publisher: |
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Definition
| Vendor of newspapers or player of a tape or others who disseminate the material |
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Term
| "Damage to the reputation" depends on: |
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Definition
Whether it is libel or slander.
Libel = defamatory statement in writing or other permanent form (filmed or taped). For libel, damages are presumed
Slander = defamatory statement is oral or spoken.
-For slander, damages are not presumed.
-For slander, must show economic harm (if just social harm, it is NOT actionable) unless it is slander per se.
-Slander per se is treated the same as libel in regards to damage. Does not require proof of damage. Slander per se include statements relating to:
1) Business or profession
2) Loathsome disease (venereal disease or leprosy)
3) Crime involving moral turpitude
4) Unchastity of a woman |
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Term
|
Definition
-Consent
-Truth
-Absolute Privilege
-Qualified Privilege |
|
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Term
|
Definition
Speaker NOT liable for:
1) Judicial Proceedings
2) Legislative Proceedings - NO requirement that it bear a reasonable relationship to any mater at hand
3) Executive Proceedings
4) Compelled Broadcast or publication (media)
5) Communication between spouses |
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Term
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Definition
-Speaker may say something defamatory without being liable if they have a good reason (why it was said). Arises when there is a public interest in encouraging candor. Examples: letter of references, statements made to police, etc.
-2 conditions:
•Defendant must make statement in good faith (reasonable belief in the truth of the statement and honest error)
•Can lose qualified privilege through abuse such as making statement not within the scope of the privilege or if the speaker acted with malice |
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Term
| Defamation and public concern |
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Definition
If defamatory statement concerns public concern, plaintiff MUST show:
1) Statement is false
2) Fault (proof that defendant made statement not in good faith...fault depends on whether person is private or public figure) |
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Term
| Public figure + public concern: |
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Definition
If defendant is a public figure, fault can only be met with a showing that the defendant made the statement with malice.
Public concern + public figure = malice required |
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Term
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Definition
| D made statement knowing it was false and made it anyway or was reckless in investigating the truth of the statement. |
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Term
| Private person + public concern, fault can be met with a showing of: |
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Definition
At least negligence
Public concern + private person = at least negligence required |
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Term
| Invasion of Privacy Torts |
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Definition
-Appropriation
-Intrusion
-False light
-Public disclosure of private facts |
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Term
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Definition
| Unauthorized use of plaintiff’s name or picture for commercial advantage. (e.g., use of plaintiff’s picture to advertise an automobile) |
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Term
|
Definition
-Invasion of the plaintiff’s seclusion in a way that is highly offensive to a reasonable person in an area where you have a reasonable expectation of privacy (e.g., getting their email, eavesdropping, peeping tom)
-No requirement that defendant enter plaintiff’s property or commit trespass |
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Term
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Definition
-Publication of facts placing plaintiff in a false light involving something highly offensive to a reasonable person
-Malice is required when it deals with public interest
-No good faith defense here. Even if you have reasonable belief that facts are accurate...if you get it wrong, you are subject to liability. |
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Term
| Public disclosure of private facts |
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Definition
| Publication of confidential/private information about plaintiff that would be highly offensive to a reasonable person. |
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Term
| Defenses to privacy torts: |
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Definition
|
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Term
| Absolute and qualified privileges are defenses only to: |
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Definition
-False light
-Public disclosure of private facts |
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Term
|
Definition
1) Intentional Misrepresentation (Fraud + deceit); It is misrepresentation made by defendant knowing it was false or reckless disregard as to its truth or falsity (scienter) made with intent to induce plaintiff’s reliance on the misrepresentation; causation, justifiable reliance, & damages
2) Negligent misrepresentation - Misrepresentation made by defendant in a business or professional capacity; Breach of duty toward particular plaintiff (only to those whose statements were made or to those who defendant knew would rely on it); Causation; Justifiable reliance; Damages
3) Inducement of a breach of contract - Existence of a valid contractual relationship or valid business expectancy of plaintiff, defendant knew of the relationship/expectancy, and intentionally interfered which results in a breach or termination of the relationship/expectancy, and causes damage to plaintiff. |
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Term
|
Definition
1) Malicious prosecution - institution of criminal proceedings against plaintiff that terminates in favor of plaintiff where there is absence of probable cause for prosecution, an improper purpose of defendant (i.e., malice) and results in damage.
2) Abuse of process - wrongful use of the process for ulterior purpose and some definite act or threat against plaintiff to accomplish the ulterior purpose. |
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Term
|
Definition
-Duty: must show that he owed a duty of care
-Breach: must show that defendant breached duty
-Causation: must show both factual and proximate causation
-Damages |
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Term
|
Definition
| Reasonable person has duty to take risk-reducing precautions. |
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Term
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Definition
| Only to foreseeable victims...BUT a person who is in the “zone of danger” can argue that a risk of injury was foreseeable under the circumstances. If a person is very far away, usually not foreseeable and not owed a duty of care...However, exceptions apply to where a party is foreseeable |
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Term
| Who is a foreseeable plaintiff even if they are not within the zone of danger? |
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Definition
| Rescuers and sometimes, a 3rd party for whose economic benefit a legal or business transaction was made (i.e., wills) |
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Term
| What is the standard of care? |
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Definition
To act like a reasonable prudent person under the circumstances (objective standard)
Note: If person has superior skills, the RPP also has those superior skills. RPP is assumed to have the same physical characteristics as the defendant. |
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Term
| What are some special scenarios where a different duty of care is owed? |
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Definition
-Professionals
-Children
-Common carriers/innkeepers
-Automobile driver to guest
-Bailor/baileee
-Emergency situations |
|
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Term
|
Definition
| Professionals must exercise the skill and knowledge normally possessed by members of that profession in good standing in similar communities. |
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Term
|
Definition
-Under age 5 owe NO duty of care.
-Age 5 and above owe duty to act like a child who is of similar age, experience and intelligence acting under similar circumstances (subjective...i.e., stupid 6yr old. Billy must do worse than a stupid 6yr old)
-If a child is engaged in an adult activity, then child must act like reasonable prudent person (default rule applies); Examples: operating motorized vehicle, tractor, boat, etc. |
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Term
| Duty of common carriers and innkeepers |
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Definition
| Duty to exercise a very high degree of care toward their passengers and guests |
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Term
| Duty of automobile driver to passenger |
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Definition
| Duty is ordinary care but a few states have statutes where duty is to refrain from gross or wanton and willful misconduct. |
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Term
|
Definition
-If sole benefit is for bailor, bailee is liable only for gross negligence (i.e., bailor asks neighbor (bailee) to take in bailor’s mail while on vacation)
-If sole benefit is for bailee, baliee is liable even for slight negligence (i.e., loaning lawn mower)
-If benefit is for both bailee and bailor, bailee must exercise ordinary due care (I.e., Owner (bailor) gives computer to be fixed to technician) |
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|
Term
| Duty of care during emergency situations |
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Definition
| Duty to act as a reasonable person would under the same emergency |
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Term
|
Definition
-No duty as to natural conditions on land
-No duty as to artificial conditions unless:
o Unreasonably dangerous artificial condition
o Also, duty to take precautions to those passing from dangerous conditions (i.e., erecting barricade to keep people from falling into excavation on edge of property) |
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Term
| Duty to those ON land depends on what? |
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Definition
Whether they are a trespasser, licensee, or invitee.
Licensee = enters land with permission but does NOT confer economic benefit (i.e., social guests)
Invitees = person who enters with permission and confers economic benefit on possessor OR the property is open to the general public (i.e., customer of a store) |
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Term
|
Definition
-Unknown trespassers = no duty of care
-Known or anticipated trespasser = duty to warn or make safe known, dangerous, artificial conditions that trespasser is unlikely to discover (hidden; note: if open and obvious, no duty)
-Child Trespassers – generally owed a duty of a reasonable prudent person under all the circumstances to warn or make safe artificial conditions on land. However, there is the attractive nuisance doctrine, which imposes a special duty as to foreseeable risks of harm |
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Term
| Attractive Nuisance Doctrine imposes a special duty as to foreseeable risks of harm. Plaintiff must show: |
|
Definition
1) Dangerous condition present on land which owner knows or should be aware
2) Owner knows or should know that children frequent this area
3) Condition is likely to cause injury (i.e., dangerous because of the child’s inability to appreciate the risk)
4) The expense of remedying the situation is light compared with the magnitude of the risk |
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Term
|
Definition
Duty to warn licensee of known, dangerous conditions that trespasser is unlikely to discover
o Note: Firefighter or police officer are treated like licensees and can never recover under negligence for injuries that are part of the inherent risks of the job. |
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Term
|
Definition
| Duty to warn of nonobvious, dangerous conditions that the land owner knew OR should have discovered through reasonable inspection |
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Term
| General duty of lessor and lessee of realty |
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Definition
-To maintain premises in a way to avoid unreasonable risk of harm to others (If owner leases, then lessee has this duty).
-To give warning to the lessee of existing defects which the lessor is aware and knows the lessee is not likely to discover on reasonable inspection |
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Term
| Duty of a vendor of realty |
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Definition
| Duty to disclose concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and of which he knows the vendee is ignorant and is not likely to discover on reasonable inspection. |
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Term
| Statutory standard of care is used when: |
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Definition
| Plaintiff asks court to use a specific statute for the standard of care where there is a criminal penalty. The statute will prove duty and violation of it, a breach of duty. |
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Term
| Plaintiff can use the statute to show breach when he proves these elements: |
|
Definition
1) Plaintiff is in the class of persons intended to be protected by the statute
2) Statute was designed to prevent the type of harm suffered by the plaintiff
3) The statute is clear as to what the standard of conduct is expected |
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Term
| May a violation of statute be excused? When? |
|
Definition
Yes.
-Compliance with statute would cause more danger than violation (i.e., defendant drives onto wrong side of road to avoid hitting child); OR
-Compliance with statute would be impossible under the circumstances or beyond defendant’s control (i.e., heart attack while driving and hits pedestrian) |
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Term
| Duty under NIED (negligent infliction of emotional distress) |
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Definition
| Duty for NIED is established from one of the above. Either through statute, or general duty. |
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Term
| When can a plaintiff recover under NIED? |
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Definition
-The plaintiff is within the “zone of danger” and
-The plaintiff suffers physical symptoms from the distress (i.e., nervous breakdown, heart attack) |
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Term
| When bystanders recover under NIED? |
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Definition
-The plaintiff and the person injured by the defendant are closely related
-The plaintiff is present at the scene
-The plaintiff personally observed or perceived the event/injury
NOTE: Erroneous report that a relative of the plaintiff has died or a defendant mishandling a corpse can also lead to recovery. |
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Term
| A person can recover under NIED if there is a special relationship. Describe. |
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Definition
| Defendant may be liable for causing plaintiff’s severe emotional distress that leads to physical symptoms when a duty arises from the relationship between plaintiff and defendant (i.e., doctor confuses file and tells patient he has a terminal illness and then becomes shocked and suffers heart attack) |
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Term
| Is there an affirmative duty to act? |
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Definition
|
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Term
| What are the exceptions to the affirmative duty to act? |
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Definition
-One who gratuitously acts for the benefit of another, although under no duty to do so in the first instance, is then under a duty to act like a reasonable prudent person and continue the assistance.
-One whose conduct (whether negligent or innocent) places another in a position of peril is under a duty to use reasonable care to aid or assist that person.
-A person having a special relationship to the plaintiff may be liable for failure to act if the plaintiff is in peril.
o Common carriers are under a duty to use reasonable care to aid or assist passengers
o Innkeepers, restaurants, shopkeepers and others who gather the public for profit have a duty to use reasonable care to aid or assist their patrons and to prevent injury to them from third persons. |
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Term
|
Definition
-Breach occurs when the defendant’s actions falls below the required standard of care owed to the plaintiff. Breach can also be shown by any of the following:
1) Custom or usage
2) Violation of statute
3) Res Ipsa Loquitor (thing speaks of itself) |
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Term
| What must be shown for res ipsa loquitor? |
|
Definition
-This type of accident would not normally occur unless someone was negligent.
-The instrumentality that caused the injury was in the exclusive control of defendant [note: if multiple defendants, cant use res ipsa loquitor]
-The accident was not attributable to the plaintiff |
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Term
| Two types of causation & describe the two: |
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Definition
1) Actual causation (factual) - plaintiff establishes a connection between the breach and the injury suffered.
2) Proximate Causation (legal) - Plaintiff must show that what happened was a foreseeable consequence of the defendant’s breach. |
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Term
| How to show actual cause: |
|
Definition
1) But for test
2) Joint causes
OR
3) Alternative causes |
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Term
|
Definition
| But for the breach, plaintiff would not have been injured |
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Term
|
Definition
| 2 or more negligent parties not acting together merge to injure plaintiff, both defendants are jointly liable so long as the defendants’ conduct are a “substantial factor” in causing the injury. |
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Term
|
Definition
| 2 or more negligent parties but unsure as to which one caused the plaintiff’s injury, the burden would shift to defendants and each must show that his negligence was not the actual cause. If unable to do this, they both may be liable. In enterprise liability, parties may have to pay in proportion to their market share. |
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Term
| Liability in DIRECT cause |
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Definition
-If a particular harmful result was foreseeable, the unusual manner in which the injury occurred or the unusual timing of the cause and effect is irrelevant to the defendant’s liability.
-If particular harmful result was UNforeseeable, defendant is NOT liable. (i.e., speeding taxi cab where bridge falls under and injures his passenger, even though but for taxi cab, passenger would not have been injured, ct would not hold defendant liable. |
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|
Term
| Liability in INDIRECT cause |
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Definition
1) Foreseeable results caused by foreseeable intervening forces = defendant liable
2) Foreseeable results caused by UNforeseeable intervening forces = defendant usually liable
3) UNforeseeable results caused by foreseeable intervening forces = defendant not liable
4) UNforeseeable results caused by UNforeseeable intervening forces = defendant not liable |
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Term
| What are foreseeable dependent intervening forces? |
|
Definition
1) Subsequent medical malpractice: defendant liable for aggravation of plaintiff’s injuries caused by the malpractice of treating physician.
2) Negligence of rescuers: Rescuers are viewed as foreseeable intervening forces and the defendant is liable for a rescuer’s negligence.
3) “Reaction forces” & efforts to protect person or property: Defendant liable for any harm when his actions cause another to react. Defendant liable for negligent efforts of persons to protect life or property or 3rd persons endangered by the defendant’s negligence.
4) Subsequent disease – Defendant liable for diseases caused by the weakened condition in which defendant has placed plaintiff by negligently injuring him/her.
5) Subsequent accident – Defendant liable when plaintiff suffers subsequent injury following original injury and the original injury was a substantial factor in causing 2nd injury. |
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Term
| What are foreseeable independent intervening forces? |
|
Definition
Defendant is liable for:
-Negligent acts of 3rd persons that are foreseeable
-Criminal acts/intentional torts of 3rd persons
-Acts of God that are foreseeable. |
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Term
| If the extent or the severity of the harm is NOT foreseeable, is defendant liable? |
|
Definition
| Yes. Take the plaintiff as you see him. |
|
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Term
|
Definition
| Plaintiff has duty to take reasonable steps to mitigate damages. Failure to mitigate precludes recovery of any additional damages caused by aggravation of the injury (Avoidable consequences rule) |
|
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Term
|
Definition
| Damages are not reduced or mitigated by benefits received from other sources (e.g., health insurance, sick pay) |
|
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Term
| What are defenses to negligence? |
|
Definition
-Contributory negligence
-Assumption of the risk
-Comparative negligence |
|
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Term
|
Definition
-Barred recovery... but most jurisdictions abolished this.
-Last Clear Chance – permits plaintiff to recover despite his own contributory negligence. Permits a person with the last clear chance to avoid an accident who fails to do so is liable for negligence |
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Term
|
Definition
| Plaintiff may be denied recovery if he assumed the risk. Plaintiff must have known of the risk and voluntarily assumed it. |
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Term
|
Definition
Defendant can raise comparative negligence if they can show plaintiff failed to exercise proper care for his/her safety.
• Jury discretion to allocate percentage of liability
• Plaintiff’s recovery is reduced by plaintiff’s degree of fault |
|
|
Term
| Partial comparative negligence |
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Definition
• Plaintiff’s fault under 50%, reduces recovery.
• Plaintiff’s fault over 50%, plaintiff is barred from recovery |
|
|
Term
| Pure comparative negligence |
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Definition
| • Allows recovery no matter how great plaintiff’s negligence is but is reduced by plaintiff’s fault |
|
|
Term
| What is strict liability? What is the duty? |
|
Definition
Liability without fault
Duty to make safe to foreseeable plaintiffs and is limited to the danger anticipated from the dangerous animal or abnormally dangerous activity |
|
|
Term
| Strict liability will be imposed for these 2 categories |
|
Definition
1) Animals
2) Abnormally dangerous activities |
|
|
Term
|
Definition
-For trespassing animals = Owner strictly liable for damage done by the trespass of his animals (other than household pets) as long as it was reasonably foreseeable
-For Wild Animals: Owner is strictly liable for injuries
-For domestic animals: Owner not strictly liable unless owner has knowledge of the animal’s dangerous propensities.
Note: No liability for any animal if person is an undiscovered trespasser. |
|
|
Term
| Liability for abnormally dangerous activities |
|
Definition
| Person is strictly liable caused by an abnormally dangerous activity |
|
|
Term
| An activity is abnormally dangerous if: |
|
Definition
-It creates a substantial risk of serious harm to person or property no matter how much care is exercised AND
-The activity is not a matter of common usage in the community
Examples:
• Blasting (dynamite)
• Use of highly dangerous toxic chemicals
• Nuclear energy or radiation
• Dangerous consumer products |
|
|
Term
| Defenses to strict liability |
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Definition
- Contributory negligence – no defense (i.e., plaintiff knows it’s a dynamite truck and tries to pass it on a curve, causing it to turn over and explode. Plaintiff cannot recover)
-Comparative negligence – offsets any negligence of plaintiff |
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Term
| Theories of liability for products liability |
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Definition
1) Intent
2) Negligence
3) Strict liability
4) Implied warranty of merchantability and fitness for particular purpose
5) Representation theories (express warranty & misrepresentation) |
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Term
| Elements for products liability: |
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Definition
1) Defect
2) Existence of the defect when the product left the defendant's control |
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Term
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Definition
-Manufacturing defect
-Design defect
-Inadequate warning |
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Term
| Manufacturing defect and how to prove |
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Definition
Product emerges from manufacturing different and more dangerous than the products that were made properly
Prove defect by showing: the product was dangerous beyond the expectation of the ordinary consumer |
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Term
| Design defect and how to prove |
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Definition
All products of a line are the same but have dangerous propensities
Prove defect by showing: that a less dangerous modification or alternative was economically feasible. Factors include:
• Usefulness & desirability o the product
• Availability of safer alternative product
• Dangers of the product has been identified at the time of trial
• Likelihood and probable seriousness of injury
• Obviousness of danger
• Normal public expectation of danger
• Avoidability of injury by care in use of product
• Feasibility of eliminating the danger without seriously impairing the product’s function or making it unduly expensive |
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Term
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Definition
Failure to give adequate warnings as to the risks involved in using the product that may not be apparent or obvious to users
If it can be physically made safer, warning will not suffice. |
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Term
| Products liability based on intent |
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Definition
| Defendant will be liable to anyone injured by an unsafe product if the defendant intended the consequences or knew that they were substantially certain to occur. |
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Term
| Products liability based on negligence |
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Definition
The following must be proved for products liability based on negligence:
• Existence of a legal duty owed to plaintiff (usually, general duty of care)
• Breach of that duty – negligent conduct leading to the defective product
• Actual & proximate cause
If P buys defective product from retailer who bought it from D, D would be liable if retailer had negligently failed to notice the defect. But if retailer discovers defect and fails to warn P, D would not be liable.
• Damages |
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Term
| Products liability based on strict liability |
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Definition
Plaintiff must prove:
• Absolute duty by a commercial supplier (manufacturer, retailer, assembler or wholesaler)
• Proof that the product is defective and has not been altered
• Actual and proximate cause:
• Plaintiff must show he/she was using it in a foreseeable manner at the time of the injury
• If plaintiff misuses product it does not deny recovery so long as the misuse is foreseeable.
• Damages |
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Term
| Implied warranty of merchantability and fitness for particular purpose |
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Definition
Plaintiff must prove that the product failed to live up to the standards imposed by an implied warranty.
When a merchant who deals in a certain kind of goods sells such goods, there is an implied warranty that they are merchantable, or generally acceptable among those who deal in similar goods and are generally fit for the ordinary purposes for which such goods are used. |
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Term
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Definition
| Plaintiff must prove that the seller or supplier made an affirmation of fact or promise to the buyer relating to the goods that are part of the “basis of the bargain” and then breached this implied warranty. |
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Term
| Misrepresentation of fact |
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Definition
| Plaintiff must prove that there was a representation by the seller of a product that induced reliance by the buyer. |
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Term
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Definition
Substantial, unreasonable interference with another person’s use or enjoyment of real property that he possesses or has a right to possess. (not with exclusive possession as in trespass)
Nuisance is NOT a tort, it’s a type of harm. |
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Term
| Describe the two types of nuisance |
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Definition
1) Private nuisance
• Substantial interference = offensive, inconvenient, or annoying to an average person in the community
• Unreasonable interference = injury must outweigh the utility of the defendant’s conduct (balancing test)
2) Public nuisance
• Interferes with the health, safety, or property rights of the community |
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Term
| What is vicarious liability? |
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Definition
| One person commits a tort against a 3rd party and another person will be liable to the 3rd party for this act |
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Term
| Doctrine of respondeat superior |
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Definition
| Employer liable for employee for tortious acts that occur within scope of employment |
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Term
| What is a frolic? What is a detour? |
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Definition
-Frolic = major deviation (i.e., running personal errand)
-Detour = minor deviation |
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Term
| Are employers responsible for intentional torts of its employees? |
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Definition
No, it's not usually within scope of employment but employer can be liable if furthering the employer’s purposes (i.e., bouncer, bill collector)
Note: Employers can be liable for their own negligence for selecting or supervising their employees |
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Term
| Vicarious liability for independent contractors |
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Definition
Principal will NOT be vicariously liable for tortious acts of an independent contractor. 2 exceptions:
• Independent contractor is engaged in inherently dangerous activity
• Non-delegable duties (i.e., duty of business to keep premises safe for customers) |
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Term
| Vicarious liability for partners and joint venturers |
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Definition
| Each member is vicariously liable for torts committed by another member as long as it is in the scope and course of the partnership/joint venture (business purpose) |
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Term
| Vicarious liability for automobile owner and driver |
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Definition
| Automobile owner is generally NOT liable for tortious conduct of another driving his automobile. There are family car doctrine which holds owner liable for tortious conduct of immediate family. |
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Term
| Vicarious liability for bailor and bailee |
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Definition
| Bailor is not vicariously liable for the tortious conduct of his bailee. The bailor may be liable for his/her own negligence in entrusting |
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Term
| Vicarious liability for parent + child |
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Definition
| Parents are not vicariously liable for torts for their children. However, some states have statutes that make a parent liable for the willful and intentional torts of their minor children up to a certain dollar amount. |
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Term
| Vicarious liability for tavernkeepers |
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Definition
| Common law, no liability on vendors of alcohol to injuries resulting from a vendee’s intoxication. Most states have enacted Dramshop Acts that do allow a cause of action in favor of any 3rd person injured by the intoxicated vendee. |
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Term
| Joint & Several Liability |
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Definition
When 2 or more tortious acts combine to cause an indivisible injury to plaintiff, each tortfeasor is jointly and severally liable of the injury.
Each is liable to the plaintiff for the ENTIRE damage unless it is possible to identify the portion of injuries. |
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Term
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Definition
| Plaintiff recovers full payment from one tortfeasor, there is satisfaction. She may not recover further against any other joint tortfeasor. |
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Term
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Definition
Contribution = responsibility is apportioned among those who are fault
Indemnity = shifting the entire loss between or among tortfeasors |
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Term
| What causes of action DONT survive death |
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Definition
| Defamation and malicious prosecution. (too personal) |
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Term
| Who can recover for loss of consortium? |
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Definition
-Spouse for a spouse
-Parent for a child |
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Term
| What is included in loss of consortium? |
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Definition
• Loss of services – no one to cook, do laundry, mow lawn
• Loss of society – companionship – no one to talk to
• Loss of sex |
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Term
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Definition
| Any defense that can be asserted against injured spouse will be available against consortium plaintiff. |
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Term
| Intra-family tort immunities |
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Definition
| Traditional rule, family could not sue one another. However, rules have changed and now husband-wife can maintain a suit against each other and parents and children can as well but it’s limited to intentional torts and automobile cases. (applies to injuries of persons + property) |
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Term
| Government is immune to which torts? |
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Definition
| Assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel and slander, misrepresentation and deceit, and interference with contract rights. |
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Term
| Government has immunity for what kind of acts? |
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Definition
Government has immunity for discretionary acts (that which takes place at the planning and decision-making level such as legislative and judicial decision-making) and policy decisions.
For ministerial acts, NO immunity
• Ministerial acts = those performed at operational level of govt (e.g., repairing traffic signals, driving a vehicle) |
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Term
| Can government contractors assert immunity? |
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Definition
| Yes, government contractors can also assert immunity for products liability if they conformed to reasonable, precise specifications approved by the government and warned the government about any known dangers in the product |
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