Ca Bar 12 Torts

Front 1

Generally, what are the three elements you need to establish a prima facie case of an intentional tort? [torts]

Back 1

(1) an act (volitional movement); (2) intent (either general or specific); (3) causation (even if defendant's conduct was just a substantial factor)

Front 2

Generally, there are two types of intent for intentional torts. Explain.

Back 2

(1) specific (the goal in acting is to bring about the specific consequences) or (2) general (the actor knows with "substantial certainty" that the consequences will result)

Front 3

What is the general rule on transferred intent in making out a prima facie case of an intentional tort?

Back 3

When you intend to commit a tort against one person but instead: (1) commit a different tort against that person; (2) comit the same tort against another person; (3) commit a different tort against a different person.

Front 4

Transferred intent can only be used for five intentional torts. What are they?

Back 4

(1) assault; (2) battery; (3) false imprisonment; (4) trespass to land; (5) trespass to chattels.

Front 5

Generally, what's the rule for causation in intentional torts?

Back 5

The result must have been legally caused by defendant's act or something set in motion by him. Causation will be satisfied if the defendant's conduct was a "substantial factor" in bringing about the injury.

Front 6

What are the four elements of battery? [torts]

Back 6

(1) Harmful or offensive contact, (2) to plaintiff's person, (3) intent, (4) causation

Front 7

What are the specific rules for the harmful or offensive contact element of battery? [torts]

Back 7

It's judged by a reasonable person standard. Consent is a defense, and contact will be implied for the ordinary contacts of everyday life (bumping on a crowded bus). Contact can be direct or indirect (setting a trap).

Front 8

What is the "plaintiff's person" in the context of battery?

Back 8

It includes anything connected to the plaintiff (e.g., clothing or purse)

Front 9

What damages are available in battery?

Back 9

The plaintiff can recover nominal damages even if actual damages aren't proved. Plaintiff can recover punitive damages for malicious conduct.

Front 10

What are the four elements of assault?

Back 10

(1) An act by the defendant creating a "reasonable apprehension" in the plaintiff; (2) of "immediate" harmful or offensive contact to the plaintiff's person; (3) intent; (4) causation

Front 11

Explain what reasonable apprehension means in the context of assualt?

Back 11

If the defendant has the "apparent ability" to commit a battery, this is enough. Words alone are insufficient; they have to be coupled with conduct. But words can negate conduct.

Front 12

What damages are available in assault?

Back 12

Plaintiff can recover nominal damages even if actual damages aren't proved. Punitive damages are available for malicious conduct.

Front 13

What are the four elements of false imprisonment?

Back 13

(1) defendant's act or omission "confines or restrains" plaintiff; (2) to a bounded area; (3) intent; (4) causation

Front 14

What are some sufficient and insufficient methods of confinement in false imprisonment?

Back 14

Sufficient: (1) physical barriers, (2) physical force, (3) threats of force, (4) failure to release, (5) invalid use of legal authority. Insufficient: (1) moral pressure, (2) future threats. It doesn't matter how long. The plaintiff has to be aware of his confinement

Front 15

What is a "bounded area"? It's one of the elements of false imprisonment…

Back 15

Freedom of movement must be limited in all directions. There can't be a "reasonable" means of escape known to the plaintiff.

Front 16

What damages are available in false imprisonment?

Back 16

Plaintiff can recover nominal damages even if actual damages aren't proved. Punitive damages are available for malicious conduct.

Front 17

What are the elements of a prima facie case of the intentional infliction of emotional distress?

Back 17

(1) An act by the defendant amounting to "extreme and outrageous conduct"; (2) intent or recklessness; (3) causation; (4) damages -- "severe" emotional distress

Front 18

Explain was "extreme and outrageous conduct" is in the intentional infliction of emotional distress?

Back 18

It has to transcend all bounds of decency. Ordinary conduct might become outrageous if: (1) it is continuous in nature; (2) directed at certain types of plaintiffs (children, elderly, pregnant, supersensitive adults if the defendant knows); (3) committed by certain types of defendants (common carriers or innkeepers)

Front 19

What's different about the intent element for the intentional infliction of emotional distress compared to other intentional torts

Back 19

Unlike other intentional torts, recklessness as to the effect of defendant's conduct will satisfy the intent requirement

Front 20

What's different about the damages required for intentional infliction of emotional distress compared to other intentional torts

Back 20

Actual damages (severe emotional distress), not just nominal damages, are required. Proof of physical injury isn't required. The more outrageous the conduct, the less proof you need.

Front 21

Talk about bystanders in intentional infliction of emotional distress cases.

Back 21

If the defendant intentionally causes physical harm to a third person and the plaintiff suffers severe emotional disuess, the plaintiff can recover EITHER by making out a prima facie case of IIED OR that (1) she was present when the injury occurred; (2) she is a close relative; and (3) the defendant knew (1) and (2).

Front 22

On the bar exam, should you chose IIED or other intentional torts first?

Back 22

IIED is a fallback tort position. If you can recover on another theory, you should do that.

Front 23

What are the elements of a prima facie case of trespass to land?

Back 23

(1) Physical invasion of the plaintiff's real property; (2) intent; (3) causation

Front 24

Discuss the physical invasion prong of trespass to real property

Back 24

The invasion may be by person or object (intangibles (like vibration) may be nuisance) and real property includes not only the surface but also airspace and subterranean space for a reasonable distance

Front 25

Discuss the intent element for trespass to real property

Back 25

Defendant only needs to intend to enter onto that particular piece of land (he doesn't need to know that the land belonged to someone else)

Front 26

Who can bring a claim for trespass to real property?

Back 26

Anyone in actual or constructive possession of land can bring a suit

Front 27

What damages do you have to prove in a trespass to real property?

Back 27

You can recover without showing actual injury to land

Front 28

What are the elements of a prima facie case of trespass to chattels?

Back 28

(1) An act by defendant that "interferes with plaintiff's right of possession" in a chattel; (2) intent; (3) causation; (4) damages.

Front 29

What are two types of interference in a trespass to chattels case?

Back 29

It can be (1) intermeddling (directly damaging the chattel) or (2) dispossession (depriving the plaintiff of his lawful right of possession of the chattel)

Front 30

What damages do you have to prove in a trespass to chattels case?

Back 30

Actual damages--not necessarily to the chattel, but at least to a posessory right

Front 31

What are the elements of a prima facie case of conversion?

Back 31

(1) an act by the defendant that "interferes with plaintiff's right of possesion" in a chattel; (2) "so serious" that it warrants requiring the defendant to pay the chattel's full value; (3) intent; and (4) causation

Front 32

What are some example acts of conversion, and what's a rule of thumb?

Back 32

Wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing a chattel. The longer the withholding period and the more extensive use, the more likely it is to be conversion. A less serious interference is trespass to chattels.

Front 33

What kind of chattels can be the subject of a conversion?

Back 33

Only tangible personal property or intangibles that have been reduced to physical form (e.g., a promissory note) are subject to conversion

Front 34

Who can bring a claim for conversion?

Back 34

Anyone with possession or the immediate right to possession of the chattel can sue for conversion

Front 35

What remedies are available for conversion?

Back 35

Plaintiff can recover damages (fair market value at the time of conversion) or possession (replevin).

Front 36

What kind of intent is required under either trespass to chattels or conversion?

Back 36

Intent to do the act that brings about the interference

Front 37

List the defenses to intentional torts

Back 37

(1) Consent; (2) self-defense, defense of others, defense of property; (3) privilege of arrest; (4) necessity; (5) discipline of children

Front 38

In intentional torts, can the defendant consent to a criminal act?

Back 38

No

Front 39

What are the two inquiries when you analyze a consent defense to an intentional tort?

Back 39

(1) Was the consent valid (i.e., not obtained through fraud); and (2) did the defendant stay within the boundaries of the consent

Front 40

What are some of the rules to determine whether plaintiff EXPRESSLY consented when defendant raises as a defense to intentional torts?

Back 40

Defendant isn't liable if he expressly consents. Exceptions: (1) mistake will undo it IF the dfendant knew of and took advantage of the consent; (2) it was induced by fraud; (3) if it was obtained duress unless the threats were in the future.

Front 41

What are some of the rules to determine whether plaintiff IMPLIEDLY consented when defendant raises as a defense to intentional torts?

Back 41

There are two types of implied consent: apparent and implied by law. Apparent is that which a reasonable person would infer from custom and usage or plaintiff's conduct (i.e., body contact sports or incidental contact on a bus). Consent implied by law arises when action is necessary to save a person's life or some other important interest in person or property.

Front 42

Discuss the capacity plaintiff needed to have in order for defendant to raise consent as a defense to an intentional tort

Back 42

Individuals without capacity are deemed incapable of consent (incompetents, drunken people, very young children). Remember this is different from the intent required to commit a tort, whever EVERYONE has the capacity to have intent, not everyone has the capacity to consent.

Front 43

What are the three key questions to ask when defendant raises a self-defense, defense of others, or defense of property defense to an intentional tort?

Back 43

(1) Is the privilege available? (The tort must now be or about to be committed. Already committed torts don't qualify) (2) Can this defense be used for this tort (i.e., batter, trespass)? (3) Did defendant use the proper amount of force?

Front 44

State the rule for self-defense as a defense to intentional torts

Back 44

When a person reasonably believes that he is about to be attacked, he can use the force reasonably necessary to protect against injury

Front 45

What are the three key rules limiting the availability of self-defense as a defense to intentional torts?

Back 45

(1) Escape: you don't need to attempt to escape first (but the modern trend requires you to retreat before using deadly force if you can safely, unless you're at home); (2) Initial aggressor: it's not available if you're the initial aggressor; (3) third parties: may extend to third-party injuries (caused while the actor was defending himself).

Front 46

When using self-defense as a defense to an intentional tort, is mistake allowed?

Back 46

A reasonable mistake about the existince of the danger is allowed.

Front 47

In raising self-defense as a defense to an intentional tort, how much force can you use?

Back 47

Only as much as appears reasonably necessary to prevent the harm (including deadly force). You lose the defense if you exceed this limit).

Front 48

What is the rule for defense of others as a defense to intentional torts?

Back 48

You can use force to defend another when you reasonably believe that the other person could have used force to defend himself. A reasonable expense isn't necessary. You can only use as much force as you could in self-defense.

Front 49

What's the rule for using force to defend property?

Back 49

You can use reasonable force to prevent the commission of a tort against real or personal property. You have to make a demand first, unless it would be futile or dangerous. You can't use force once it's commited, but you can if you're in hot pursuit.

Front 50

Discuss the problem of defense of property and those with privileges

Back 50

Defense of property isn't available against someone with a privilege. If an actor has privilege because of necessity, recapture of chattles, etc, that privilege supersedes your right to use force to defend your property.

Front 51

Is mistake allowed when using the defense of property defense to intentional torts?

Back 51

Yes, a reasonable mistake is allowed. But it isn't allowed if you're mistaken about a privilege someone has unless the privileged person conducts the entry in a way that the defendant reasonably believes it's not privileged.

Front 52

How much force can you use to defend REAL property?

Back 52

You can use reasonable force, but you can't use force that causes death or serious bodily injury. You can't use deadly force to protect your home, most of those cases are really just self-defense cases

Front 53

Can you use force to recover real property?

Back 53

No. You could at common law, but now there are summary procedures for doing it in the courts so self-help isn't allowed anymore.

Front 54

What is the rule about using force to recover personal property?

Back 54

When another's possession began lawfully (e.g., through a conditional sale), then you can only use peaceful means to recover it. You can only use force when you're in hot pursuit. You have to make a demand, unless it's clearly futile or dangerous. You can only use force against the wrongdoer.

Front 55

What are the rules about entering other people's land to remove personal property (3 of them)?

Back 55

(1) If you're pursing a wrongdoer, you have a privilege to enter for a reasonable time in a reasonable manner; (2) You can do it to an innocent third party's land too (but you're liable for damage); (3) if the chattels are there because your fault (i.e., cattle wandered off), then you have no privilege.

Front 56

Can shopkeepers detain a shopper?

Back 56

Under the context of defense of property, a shopkeeper has a privilege of detain people for a reasonable period of time when they reasonably believe to be in possession of shoplifted goods.

Front 57

How much force can you use to defend PERSONAL property?

Back 57

Only the reasonable force you need to recapture the cattel, not including force to cause death or serious bodily injury.

Front 58

What is the privilege of arrest for felonies by police? Private citizens? [TORTS]

Back 58

Police: officer must reasonably believe that a felony has been committed and that the person he arrests committed it. Private: felony must in fact have been committed and citizen must reasonably believe that the person he arrests committed it. Both can use reasonable force, and only deadly force when suspect poses threat of serious harm

Front 59

What is the privilege of arrest for misdemeanors by police? Private citizens? [TORTS]

Back 59

The arrest is privileged if the misdemeanor was a breach of the peace and committed in the arresting party's presence (police have broader privileges). You can use force reasonably necessary to make the arrest, but never deadly force.

Front 60

What is the necessity defense?

Back 60

A person may interfere with the personal or real property of another when it's reasonably necessary to avoid threatened injury when the threatened injury is substantially more serious than the invasion.

Front 61

What are the two types of necessity defense?

Back 61

(1) public: when the act is for the public good and (2) private: when the act is solely to benefit a limited numberof people. When raising a necessity defense in the contact of a private necessity, the actor must pay for injury caused (unless the act was to benefit the property owner)

Front 62

Can the necessity defense be raised as a defense to personal injury torts?

Back 62

No

Front 63

What are the elements of defamation? Constitutional elements?

Back 63

Common law: (1) defamatory language, (2) "of or concerning" plaintiff; (3) publication by the defendant; (4) damage to the plaintiff's reputation. If the defamation involves a matter of public concern, you have to prove two add'l: (5) falsity of the defamatory language; (6) fault on the defendant's part.

Front 64

Does the plaintiff have to prove that a statement was false in a common law defamation case?

Back 64

No. The defendant can raise it as a defense.

Front 65

What is defamatory language in a defamation case?

Back 65

Defined as language tending to adversely affect one's reputation. A statement of opinion is only actionable if it appears to be based on specific facts, and an express allegation of those facts would be defamatory. Name-calling is insufficient.

Front 66

What can plaintiff do if a statement is not defamatory on its face in a defamation case?

Back 66

Plaintiff may plead additional facts as "inducement" to establish defamatory meaning by "innuendo."

Front 67

Can you defame the dead?

Back 67

No. Defamation of a deceased person isn't actionable, but a corporation or association can be defamed in a limited sense.

Front 68

What is the "of or concerning" prong of defamation?

Back 68

Plaintiff has to establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff. If it doesn't do it on it's face, you can offer extrinsic evidence (this is known as pleading "colloquium")

Front 69

What are the rules for group defamation?

Back 69

If the defamatory statement refers to all members of a small group, everyone wins. If it's a large group, no one wins. If it's just to some members of a small group, then those plaintiffs can recover.

Front 70

What is the publication requirement of defamation?

Back 70

Means communication of the defamation to someone other than the plaintiff. It can be intentional or negligent. (Intent to publish, not defame.) Each repetition is another publication, but newspapers and the media usually get a "single publication" rule.

Front 71

What can be liable for defamation?

Back 71

Primary publishers (i.e., the media) are liable to the same extent as the author or speaker. If you repeat defamation, you're liable on the same basis as the publisher. If you are just selling or plainy tapes, then you are a secondary publisher and only liable if you know or should have known it was defamatory.

Front 72

Generally, what are the two types of defamation cases?

Back 72

Libel and slander. Libel is the written or printed publication of defamatory language. Slander is spoken.

Front 73

What kind of damages do you have to prove in defamation?

Back 73

Depends on the type. For libel you just have to prove general damages. For slander you have to prove special damages unless it's slander per se.

Front 74

Is a radio or tv broadcast libel or slander?

Back 74

Libel.

Front 75

What are the four types of slander per se?

Back 75

(1) Statements that adversly reflect on one's conduct in a business or profession; (2) one has a loathsome disease; (3) one is guilty of a crime involving moral turpitude; (4) a woman is unchaste.

Front 76

When do you have to prove falsity in a defamation case?

Back 76

If the statement involves a matter of public concern (i.e., it's a first amendment issue). Plaintiff has to prove falsity. This isn't true in a common law case.

Front 77

When do you have to prove "fault" in a defamation case?

Back 77

If the statement involves a matter of public concern (i.e., it's a first amendment issue).

Front 78

What level of fault do you have to prove in a defamation case?

Back 78

(Only for 1st amendment cases) Public figures: that you have malice; private figures: you just have to prove negligence

Front 79

What is malice and who is a public figure in the context of proving fault in a defamation case?

Back 79

"Public figure": pervasive fame or notoriety or by voluntarily assuming a central role in a particular publc controversy. Malice is (a) knowledge that the statement was false or (b) reckless disregard as to whether it was false. Spite or ill will isn't enough.

Front 80

When is the status of a person important in a defamation case?

Back 80

Only in first amendment cases and only to determine the level of fault that the plaintiff is required to prove.

Front 81

What are the two defense to defamation?

Back 81

(1) truth and (2) consent

Front 82

What the absolute privileges in defamation cases?

Back 82

Defendant may be protected by an absolute privilege for: (1) remarks made in judicial proceedings, (2) legislators during proceedings, (3) federal executive officials, (4) "compelled" broadcasts, (5) between spouses.

Front 83

What is a qualified privilege to a defamation case, and what are some examples?

Back 83

It can be lost through abuse (going out of scope of privilege or defendant acts with malice): (1) reports of official proceedings; (2) statements in the interest of the publisher (defense of one's actions, property, or reputation) (3) statements in the interest of the recipient, (4) statements in the common interest of the publisher and recipient.

Front 84

What about mitigating factors in defamation?

Back 84

For example: lack of malice, retraction, lack of anger, and etc. These can be considered on damages issues, but they aren't defenses to liability.

Front 85

What are four types of wrongs included under the invasion of the right to privacy?

Back 85

(1) Appropriation of plaintiff's picture or name; (2) intrusion on plaintiff's affairs or seclusion; (3) publication of facts placing plaintiff in a false light; (4) public disclosure of private facts about plaintiff

Front 86

To maintain an action based on an appropriation of plaintiff's picture or name, what do you have to show (one flavor of invasion of the right to privacy)?

Back 86

You have to show unauthorized use of plaintiff's picture or name for defendants commercial advantage. Liability is usually limited to advertisements or promotions. Mere peripheral economic benefit isn't sufficient. There's a newsworthiness exception

Front 87

To maintain an action based on an intrusion on plaintiff's affairs or seclusion, what do you have to show (one flavor of invasion of the right to privacy)?

Back 87

The act of prying or intruding must be highly offensive to a reasonable person. The intrusion must be into something private (photos taken in public places don't qualify)

Front 88

To maintain an action based on false light, what do you have to show (one flavor of invasion of the right to privacy)?

Back 88

"False light" exists where one attributes to plaintiff views he does not hold or actions he didn't take. But it must be something highly offensive to a reasonable person under the circumstances. There must also be publicity. FIRST AMEND: if the matter is in the public interest, you have to prove malice on the defendant's part.

Front 89

To maintain an action based on public disclosure of private facts, what do you have to show (one flavor of invasion of the right to privacy)?

Back 89

Have to prove that the defendant dislosed private information (i.e., nothing of public record). It must be highly offensive to a reasonable person of ordinary sensibilities. Truth is NOT a defense.

Front 90

In an invasion of privacy case, what are the three elements of a prima facie case?

Back 90

(1) There are the four different types; (2) Causation; and (3) damages. You don't have to prove special damages and emtional/mental anguish are sufficient.

Front 91

What are the two types of misrepresentation torts?

Back 91

(1) Intentional misrepresentation (fraud, deceit); (2) negligent misrepresentation

Front 92

What are the six elements of a prima facie case of intentional misrepresentation?

Back 92

(1) Misrepresentation, (2) scienter, (3) intent, (4) causation, (5) justifiable reliance, and (6) damages

Front 93

What is the standard of what constitutes a misrepresentation in an intentional or negligent misrepresentation case?

Back 93

It has to be misrepresentation of a material fact (but there is usually no duty to disclosue and an opinion is not actionable unless it was made by someone with superior skill in the area). Silence usually isn't enough; one must make an affirmative misrepresentation.

Front 94

What is the standard for scienter in an intentional misrepresentation case?

Back 94

The defendant knew or believed the statement was false or no basis for the statement at the time the defendant knew or believed it was false.

Front 95

What is the standard for intent in an intentional misrepresentation case?

Back 95

It's the intent to induce the plaintiff to act or refrain from acting in reliance upon the misrepresentation.

Front 96

What is the causation standard in a misrepresentation case?

Back 96

Plaintiff has to demonstrate that he actually relied on the statement

Front 97

What is the standard for justifiable reliance in a misrepresentation case?

Back 97

You have to prove that your reliance was justifiable. This usually means that you are relying on facts and not opinions

Front 98

What damages do you have demonstrate in a misrepresentation case?

Back 98

That you had actual pecuniary losses

Front 99

Are there any defenses to an intentional misrepresentation tort?

Back 99

No

Front 100

What are the five elements of a prima facie case of negligent misrepresentation?

Back 100

(1) a misrepresentation by defendant in a business or professional capacity; (2) breach of a duty toward a particular plaintiff; (3) causation; (4) justifiable reliance; and (5) damages

Front 101

In what setting is negligent misrepresentation generally limited to?

Back 101

Commercial settings

Front 102

State a prima facie case of interference with business relations

Back 102

(1) existence of a valid contractual relationship between plaintiff and a third party or a valid business expectancy; (2) defendant's knowledge of the relationship or expectancy; (3) intentional interference by the defendant, including a breach or termination of the relationship or expectancy; (4) damages.

Front 103

What privileges can you use to defend against a charge of interference with business relations?

Back 103

If it was a valid attempt to obtain business or protect your interest. Also: (1) interference with merely prospective business; (2) using commercially acceptable means of persuasion; (3) they are seeking the same prospective customers; (4) responding to the third party's request for business advice.

Front 104

What are two torts that fall under the wrongful institution of legal proceedings?

Back 104

(1) malicious prosecution and (2) abuse of process

Front 105

Do malicious prosecution cases apply to civil proceedings?

Back 105

Yes, usually

Front 106

What are the elements of a prima facie case of malicious prosecution?

Back 106

(1) The institution of criminal proceedings against plaintiff; (2) termination in the plaintiff's favor; (3) absence of probable cause; (4) improper purpose (i.e., something other than trying to bring a person to justice); (5) damages.

Front 107

Are prosecutors immune from cases of malicious prosecution?

Back 107

Yes

Front 108

What are the two elements of a prima facie case of abuse of process?

Back 108

(1) Wrongful use of process for an ulterior purpose and (2) a definite act or threat against plaintiff in order to accomplish the ulterior purpose.

Front 109

What are the elements of a prima facie case of negligence?

Back 109

(1) defendant had a duty to conform to a specific standard or care/conduct to protect a plaintiff against unreasonable risk of injury; (2) defendant breached that duty; (3) the breach was the actual and proximate cause of plaintiff's injury; and (4) damages

Front 110

In the context of negligence, state the general analysis for "duty of care"

Back 110

This is the first element of a prima facie case. When defendant acts, the defendant owes a duty of care to all foreseeable plaintiffs. The extent of the duty is determined by the applicable standard of care. Thus, there are two key questions: (1) was the plaintiff foreseeable? (2) What is the applicable standard of care?

Front 111

Who does the defendant owe a duty of care to? Explain a problem with third plaintiffs.

Back 111

To all foreseeable plaintiffs. When defendant owes duty to P1, but also causes injury to P2, when is P2 also foreseeable? Majority view (Cardozo): P2 can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her under the circumstances (i.e., she was in the FORESEEABLE ZONE OF DANGER); Minority view (Andrews): everyone is foreseeable (if you breach duty to P1, then P2 can recover).

Front 112

What is the Cardozo / foreseeable zone of danger rule?

Back 112

It comes up in negligence cases where a third party is injured and wants to sue. The rule is the majority rule and it says P2 can only recover if she can establish that a reasonable person would have foreseen a risk of injury to P2 under the circumstances.

Front 113

In negligence, does defendant owe a duty of care to a rescuer? Explain in detail.

Back 113

This is the problem of determining who a defendant owes a duty of care to. A rescuer is a foreseeable plaintiff where defendant negligently put himself or a third person in peril. Firefighters and police office smight be barred by the "firefighter's rule" from recovering for injuries caused by the risks of a rescue.

Front 114

In negligence, does defendant owe a duty of care to an unborn child? Explain in detail.

Back 114

This is the problem of determining who a defendant owes a duty of care to. Defendant owes a duty of care to a viable fetus. Failure to diagnose a defect or perform a contraceptive procedure does not give the child an action for a "wrongful life." But parents might recover for any additional medical expenses or pain and suffering; child-rearing expenses aren't recoverable

Front 115

In negligence, does defendant owe a duty of care to a beneficiary of an economic transaction? Explain in detail.

Back 115

This is the problem of determining who a defendant owes a duty of care to. A third party for whose economic benefit a legal or business transaction was made (e.g., a beneficiary of a will) may be a foreseeable plaintiff.

Front 116

What is the basic rule for the standard of care in a negligence case?

Back 116

It's a reasonable person standard, and it's objective (i.e., one's conduct is measured against what the average person would do).

Front 117

In determining the standard of care in negligence cases, discuss mental or physical deficiencies.

Back 117

Remember the basic standard is an objective one. This means a defendant's mental deficiencies aren't taken into account (i.e., stupidity is no excuse). However the "reasonable person" is deemed to have the same physical characteristics. (I.e., a blind person shouldn't fly a plane.)

Front 118

In a negligence case, what's the standard of care for a professional of any type (doctors have their own)?

Back 118

The basic standard is a reasonable one. However, a professional or someone with special occupation skills is required to possess the knowledge and skill of a member of the profession or occupation in good standard in similar communities. (i.e., it's a locale-based standard)

Front 119

In a negligence case, what's the standard of care for a doctor?

Back 119

They are held to a national standard. However, a doctor has a duty to disclose the risks of treatment to enable a pateient to give informed consent, and breaches it if the undisclosed risk was serious enough that a reasonable person in the patient's position would have withheld consent.

Front 120

In a negligence case, what's the standard of care for a child?

Back 120

Usually the standard is the reasonable person standard. Children are held to a subjective standard: they are held to the standard of a child of like age, education, intelligence, and experience. Children engaged in adult activities are held to adult standards. Kids under four can't be negligent.

Front 121

In a negligence case, what's the standard of care for common carrier or innkeeper?

Back 121

They are held to a high degree of care (i.e., they are liable for even slight negligence). BUT, the plaintiff must be a passenger or guest to benefit from the heightened standard.

Front 122

In a negligence case, what's the standard of care of an automobile driver to the driver's guest?

Back 122

Driver owes the guest in the car just ordinary care.

Front 123

In a negligence case, what's the standard of care for a BAILEE?

Back 123

Depends on who benefits: (1) it for the sole benefit of the bailor, there's a low standard of care; (2) for sole benefit of bailee, high standard of care; (3) for mutual benefit (typical bailment for hire), ordinary standard. The modern standard is just to apply ordinary.

Front 124

In a negligence case, what duties do the BAILOR have?

Back 124

If it's for the sole benefit of the bailee, the bailor must inform the bailee of known, dangerous defects. In a bailment for hire, bailor needs to inform the bailee of defects for which he is or should be aware.

Front 125

In a negligence case, what's the standard of care for the defendant in an emergency situation?

Back 125

The defendant has to act as a reasonable person under the same emergency condition. The court can't consider the emergency if it's of the defendant's own making.

Front 126

Just generally speaking, explain the liability of owners or occupiers of land in negligence cases.

Back 126

The extent of the liability of owners and/or occupiers of land (and those in privity with the owner/occupier) depends on where the injury occurred and on the status of the plaintiff.

Front 127

In negligence cases, what duty does the possessor of land owe to those OFF premises?

Back 127

No duty to protect one off the premises from natural conditions; but there is a duty for unreasonably dangerous artifical conditions or structures on adjacent land. In urban areas, you are liable for damages caused by trees. There's a duty to carry on activities on the property to avoid unreasonable risk of harm to others outside the property.

Front 128

In negligence cases, what duty does the possessor of land owe to those ON the premises--JUST GENERALLY?

Back 128

It depends on the plaintiff's status: trespasser, licensee, or invitee.

Front 129

In negligence cases, what duty does the possessor of land owe to trepassers?

Back 129

No duty owed to undiscovered trespasser. For discovered or anticipated trespassers: (1) must warn or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm; (2) use reasonable care in the exercise of "active operations" on the property.

Front 130

In negligence cases, what duty do license or easement holders of land owe to trepassers?

Back 130

Reasonable care.

Front 131

State the attractive nuisance doctrine

Back 131

This comes up under duties of landowners in negligence cases. The landowner has to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property. Plaintiff must show: (1) a dangerous condition the owner is or should be aware of (2) owner knows or should know children frequent the area; (3) condition is likely to cause injury (b/c children can't appreciate risk), (4) expense is slight when compared to risk.

Front 132

What is a licensee?

Back 132

A licensee is one who enters onto land with possessor's permission for her own purpose or business rather than for the possessor's benefit.

Front 133

In negligence cases, what duty does the possessor of land owe to licensees?

Back 133

Has a duty to (1) warn of dangerous conditions (natural or artificial) known to the owner that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover; and (2) exercise reasonable care in the conduct of "active operations" on the property. The possessor no duty to inspect or repair.

Front 134

Are social guests licensees or invitees?

Back 134

Licensees

Front 135

What is an invitee?

Back 135

They enter onto land in response to an invitation by the landowner (i.e., they enter for a purpose connected with the business of the landowner or enter as members of the public for a purpose for which the land is held open to the public).

Front 136

In negligence cases, what duty does the possessor of land owe to invitees?

Back 136

They owe the same duties that they owe to licensees plus they have a duty to make reasonable inspections to discover nonobvious dangerous conditions and, thereafter, make them safe.

Front 137

How can you lose your status as an invitee?

Back 137

If you exceed the scope of your invitation

Front 138

In negligence cases, what duty does the possessor of land owe to users of recreational land?

Back 138

A landowner who permits the general public to use his land for recreational purposes without charging a fee is not liable for injuries suffered by the recreational user unless the owner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

Front 139

What's the modern trend for the status of invitees, licensees, etc?

Back 139

A strong minority of states reject the distinction between licensees and invitees (some states even do it with trespassers) and simply apply a reasonable person standard to the dangerous condition on the land

Front 140

In negligence cases, what are the duties of lessors and lessees?

Back 140

(1) Lessee has a general duty to maintain the premises. (2) Lessor must warn of existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection. (3) If the lessor covenants to repair, he is liable for unreasonably dangerous conditions. If he volunteers to repair and does so negligently, he is liable.

Front 141

Could the lessor of land be liable to the lessor of the premises?

Back 141

Sure. But remember that the tenant might be also liable to the guest because of the tenant's status as possessor of the premises.

Front 142

In negligence cases, what is the duty of a vendor of realty?

Back 142

A vendor must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendeors knows or has reason to know, and which he knows the vendee is not likely to discover on a reasonable inspection.

Front 143

In negligence cases, what is the rule for a statutory standard of care?

Back 143

A statute's specific duty may replace the more general common law duty if: (1) the statute provides for a criminal penalty; (2) the statute clearly defines the standard of conduct; (3) plaintiff is within the protected class; and (4) the statute was designed to prevent the type of harm suffered by the plaintiff.

Front 144

What is negligence per se?

Back 144

If you violate a statutory standard of care, it is negligence per se. This means that the first two elements of a prima facie case are conclusively established.

Front 145

In negligence, what is the effect of compliance with a statutory standard of care?

Back 145

Nothing. It does not necessarily establish due care. It's just a way of establishing that you breached it.

Front 146

In negligence cases, what are two instances where compliance with a statutory standard of care will be excused?

Back 146

(1) Compliance would cause more danger than violation; (2) compliance is beyond defendant's control.

Front 147

What is the duty to avoid the negligent infliction of emotional distress?

Back 147

You might breach it if you create a foreseeable risk of physical injury to the plaintiff.

Front 148

What additional elements does the plaintiff have to establish in a negligent infliction of emotional distress case?

Back 148

(1) the plaintiff must be within the "zone of danger" (i.e., that the distress was caused by a threat of physical impact) and (2) plaintiff must suffer some physical symptoms from the distress (it must manifest some physical symptoms, and severe shock to the nervous system counts).

Front 149

In a negligent infliction of emotional distress case, what are situations in which the plaintiff doesn't have to show he's in the zone of danger?

Back 149

If the (1) plaintiff and person injured are closely related, (2) the plaintiff was present at the scene of the injury, and (3) the plaintiff personally observed or perceived the event. You might be able to avoid the requirements also if the defendant's negligence creates a great likelihood of emotional distress (e.g., erroneous reports of a relative's death).

Front 150

What are some of the ways to recover for emotional distress damages?

Back 150

Obviously you can get it with a tort for infliction of emotional distress, but you can also “tack” on damages as a parasitic element of physical injury damages without needing to prove the elements of emotional distress.

Front 151

In negligence cases, you generally you don't have a legal duty to act, but what are four exceptions?

Back 151

(1) Assumption of duty (once a defendant undertakes to aid someone, he must do so with reasonable care); (2) peril due to defendant's conduct (one has a duty to assist someone he has negligently or innocently placed in peril); (3) special relationship (common carriers, innkeepers, shopkeepers); (4) duties to control third persons (if you have actual ability and authority).

Front 152

What kind of special relationships give rise to an affirmative duty to act in negligence cases?

Back 152

A special relationship may create a duty to act (e.g., parent-child relationships). Common carriers, innkeepers, shopkeepers, and others that gather the public for profit owe duties of reasonable care to aid or assist. Places of public accommodation have a duty to prevent injury to gusts by third parties.

Front 153

In a negligence case, state the rule for what a breach of duty is (kind of simple, but just state it cleanly)

Back 153

Where defendant's conduct falls short of that level required by the applicable standard of care owed to the plaintiff, defendant breaches his duty. Whether the duty was breached is a question for the trier of fact, so the main problems related to proof of the breach.

Front 154

Discuss the use of custom or usage evidence in a negligence case

Back 154

Custom or usage may be used to establish standard of care, but it doesn't control the question of whether certain conduct to negligence. For example, even though certain behavior is custom in an industry, a court might decide that an entire industry is acting negligently.

Front 155

What is res ipsa loquitur?

Back 155

Used to establish breach of duty. Plaintiff has to show: (1) accident causing the injury is a type that would not normally occur unless someone was negligent; and (2) the negligence is attributable to the defendant. It can often be shown by evidence that the insturmentality causing the injury was in defendant's exclusive control.

Front 156

If plaintiff establishes res ipsa loquitur, what's the effect?

Back 156

Plaintiff then establishes a prima facie case of negligence and the court cannot direct a verdict in defendant's favor.

Front 157

What happens if plaintiff is trying to make out a case of res ipsa loquitur and the defendant moves for a directed verdict?

Back 157

If plaintiff has established res ipsa, then deny the motion (or deny it if they introduced some other evidence of breach of duty). If not, then grant the defendant's motion.

Front 158

What happens if the plaintiff moves for a directed verdict in a negligence case?

Back 158

It should always be denied except in rare cases where plaintiff established negligence per se through violation of an applicable statute AND there are no issues of proximate cause.

Front 159

In a negligence case, what are the two types of causation that plaintiff has to show?

Back 159

Once negligent conduct has been shown (i.e., a breach of the standard of care owed to a foreseeable plaintiff), the plaintiff must also show that defendant's conduct was the cause of plaintiff's injury.

Front 160

In a negligence case, what are the three tests for actual causation?

Back 160

Before a defendant's conduct can be considered a proximate cause of plaintiff's injury, it has to first be a cause in fact: (1) "but for" test, (2) joint causes--substantial factor, (3) alternative causes approach.

Front 161

In negligence cases, what is the "but for" test?

Back 161

It's one of the three actual cause / cause in fact tests. An act or omission is the cause in fact of an injury when the injury would not have occurred but for the act. It applies where there are several acts, each of whicl would be insufficient to cause the injury alone, combine to cause an injury.

Front 162

In negligence cases, what is the substantial factor test?

Back 162

It's one of the three actual cause / cause in fact tests. Where several causes bring about the injury and any one alone would have been sufficient to cause the injury, the defendant's conduct is the cause in fact if it was a substantial factor in causing the injury.

Front 163

In negligence cases, what is the alternative causes test?

Back 163

It's one of the three actual cause / cause in fact tests. It applies when there are two acts, only one of which causes injury--but it is not known which one. The burden of proof then shits to the defendants, and each must show that his negligence is not the actual cause. See, e.g., Summers v. Tice.

Front 164

Discuss proximate cause in negligence cases and the general rule.

Back 164

In addition to being a cause in fact, the defendant's conduct must also be the proximate cause of the injury. It's a limitation on liability because even though the conduct actually caused plaintiff's injury, it might not be deemed proximate cause. The general rule: defendant is generally liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts.

Front 165

In negligence cases, discuss proximate cause limitations in "direct cause" cases.

Back 165

A direct cause case is one in which there is an uninterrupted chain of events from the ngeligent act to the plaintiff's injury. The defendant is liable for all foreseeable harmful results, regardless of unusual manner or timing; defendant is not liable for unforeseeable harmful results not within the risk created by defendant's negligence.

Front 166

In negligence cases, what is the rule about foreseeable results caused by foreseeable intervening forces?

Back 166

The defendant is liable where his negligence caused a foreseeable harmful response or reaction from a dependent intervening force or created a foreseeable risk that an independent intervening force would harm plaintiff.

Front 167

What are some examples of DEPENDENT intervening forces that are almost always foreseeable in proximate cause cases?

Back 167

They are called dependent intervening forces (they are usually a natural response or reaction to the situation created by the defendant), and they are almost always foreseeable: (1) negligence of rescuers, (2) efforts to protect the person or property of oneself or another, (3) injuries caused by another reacting to defendant's actions, (4) subsequent diseases caused by weakened condition, (5) subsequent accident subsequently caused by the original injury.

Front 168

What are some examples of INDEPENDENT intervening forces that are usually foreseeable in proximate cause cases?

Back 168

Independent intervening forces that are not a natural response or reaction to the situation created by the defendant's conduct may be foreseeable if defendant's negligence increased the risk of harm from these forces. They include: (1) negligent acts of third persons; (2) crimes and intentional torts of third persons; (3) acts of god.

Front 169

In negligence cases, what is the rule about foreseeable results caused by unforeseeable intervening forces?

Back 169

Defendant is liable where his negligence increased the risk of a foreseeable harmful result and that result is ultimately produced by an unforeseebale intervening force. It doesn't apply where the unforeseeable intervening force was a crime or intentional tort of a third person.

Front 170

In negligence cases, what is the rule about unforeseeable results caused by a foreseeable intervening force?

Back 170

These are rare cases, but if there's a totally unforeseeable result from a foreseeable intervening force, the defendant isn't liable.

Front 171

In negligence cases, what is the rule about unforeseeable results caused by unforeseeable intervening forces?

Back 171

These are called superseding forces. They break the causal connection between defendant's initial negligence and plaintiff's ultimate injury, thus relieving defendant of liability. The unforeseeable result is usually not within the increased risk created by the defendant's negligence.

Front 172

In negligence cases, is the defendant liable for the unforeseeable extent or severity of harm?

Back 172

Yes. Defendant is liable for all damages, including the aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable. This is known as the eggshell-skull plaintiff rule.

Front 173

Are nominal damages available in negligence cases?

Back 173

No

Front 174

In negligence cases, what damages are available for personal injury?

Back 174

Plaintiff is entitled to obligation for all damages (past, present, and prospective). This includes economic damages (medical expenses) and noneconomic (such as pain and suffering). If you suffer physical injury, you can also recover damages for emotional distress.

Front 175

Is foreseeability of damage relevant in a personal injury claim for negligence?

Back 175

It's generall irrelevant (eggshell-skull plaintiff rule)

Front 176

In negligence cases, what damages are available for property damage?

Back 176

The measure of damage is the reasonable cost of repair or, if the property is nearly destroyed, the fair market value at the time of the accident.

Front 177

In negligence cases, what punitive damages are available?

Back 177

Plaintiff can recover punitive damages if defendant's conduct was "wanton and willful," reckless, or malicious.

Front 178

What damages can a plaintiff in a negligence case NOT recover?

Back 178

Interest from the date of damage in a personal injury action and attorneys' fees.

Front 179

Does a negligence plaintiff have a duty to mitigate damages?

Back 179

Yes. In all cases, the plaintiff has a duty to take reasonable steps to mitigate damages (e.g., seek appropriate treatment).

Front 180

What is the collateral source rule in negligence cases?

Back 180

It says that damages aren't to be reduced just because plaintiff received benefits from other sources (e.g., health insurance).

Front 181

Generally, what are three defenses to negligence claims?

Back 181

(1) Contributory negligence, (2) assumption of risk, (3) comparative negligence.

Front 182

State the general contributory negligence doctrine.

Back 182

Contributory negligence is negligence on the part of the plaintiff that contributes to her injuries. The standard of care for contributory negligence is the same as for ordinary negligence. Hence, a rescuer will not be deemed contributorily negligent without taking into account the emergency situation. Plaintiff's violation of an applicable statute may be used to establish his contributory negligence.

Front 183

Discuss contributory negligence as a defense to negligence per se

Back 183

It's a defense unless the statute was designed to protect this class of plaintiffs from their incapacity and lack of judgment (e.g., child injured after darting into street in a school zone and getting hit by speeding car of defendant).

Front 184

Is contributory negligence a defense to intentional torts?

Back 184

No. Contributory negligence is not a defense to wanton and willful misconduct or intentional tortious conduct.

Front 185

State the last clear chance doctrine

Back 185

It's an exception to contributory negligence. It permits the plaintiff to recover despite his contributory negligence. The person with the last clear chance to avoid an accident who fails to do so it liable. It's basically a rebuttal to claims of contributory negligence.

Front 186

TODO

Back 186

Review the "helpless peril" cases on page 37

Front 187

When can contributory negligence by a third party be imputed to a third party?

Back 187

Generally, contributory negligence will be imputed to a plaintiff (and bar her claim) only when the relationship between the third party and the plaintiff is such that a court could find the plaintiff vicariously liable for the third party's negligence. Negligence is imputed in employer-employee, partner, and joint venturer relationships. Negligence is not imputed between husband and wife, parent and child, and automobile owner and driver.

Front 188

State the general assumption of risk doctrine as a defense to negligence.

Back 188

Plaintiff may be denied recovery if she assumed the risk of any damage caused by defendant's act. Plaintiff must have: (1) known of the risk and (2) voluntarily proceeded in the face of the risk.

Front 189

Can assumption of risk as a defense to negligence be created by express agreement?

Back 189

Yes.

Front 190

What is the implied assumption of risk as a defense to negligence?

Back 190

Knowledge of a risk (one of the two prongs) can be implied where the risk is one that an average person would clearly appreciate. However, plaintiff does not assume the risk where there is no alternative than to face the risk or in situations involving fraud, force, and an emergency.

Front 191

What about common carriers and implied assumption of the risk?

Back 191

Common carriers and public utilities may not limit their liability by disclaimer, and members of a class protected by statute will not be deemed to have assumed any risk.

Front 192

Is assumption of the risk a defense to intentional torts?

Back 192

No. But it is a defense to wanton and willful misconduct.

Front 193

Is California a pure or partial comparative negligence state?

Back 193

Pure.

Front 194

What is comparative negligence?

Back 194

In comparative negligence states, plaintiff's contributory negligence is not a complete bar to recovery. Instead, the trier of fact weighs plaintiff's negligence and reduces damages accordingly. Most states use partial comparative negligence, which bars plaintiff's recovery if the plaintiff's negligence is more serious that defendants.

Front 195

Does the last clear chance doctrine apply in comparative negligence jurisdiction?

Back 195

No.

Front 196

What elements do you need to show to make out a prima facie case of strict liability?

Back 196

(1) the nature of the defendant's activity imposes an absolute duty to make it safe, (2) the dangerous aspect of the activity was the actual and proximate cause of the plaintiff's injury, and (3) the plaintiff suffered damage to his person or property.

Front 197

What liability does the owner of a trespassing animal have?

Back 197

Strictly liable for reasonably foreseeable damage done by a trespass of his animals.

Front 198

What liability does the owner of wild animals have for personal injuries?

Back 198

Owner is strictly liable to licensees and invitees for injuries caused by wild animals as long as the injured person did nothing to bring about the injury.

Front 199

What liability does the owner of domestic animals have for personal injuries?

Back 199

The owner is not strictly liable for injuries caused by domestic animals unless he has knowledge of that particular animal's dangerous propensities that are not common to the species.

Front 200

What liability does the owner of animals have to trespassers?

Back 200

Courts don't usually impose strict liability on owners in favor of trespassers. However, the landowner may be liable on intentional tort grounds for injuries inflicted by vicious watchdogs.

Front 201

Strict liability gets imposed for abnormally dangerous activities. What are those?

Back 201

(1) The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors, and (2) the activity is not a matter of common usage in the community.

Front 202

When people are engaged in abnormally dangerous activities, does it matter what care they exercise?

Back 202

No. No amount of reasonable care on defendant's part will relieve him of liability when strict liability is imposed.

Front 203

In strict liability cases, how far does the liability reach?

Back 203

Liability extends to all foreseeable plaintiffs

Front 204

Is assumption of the risk a defense in strict liability cases?

Back 204

Yes

Front 205

Does comparative negligence apply to strict liabilty cases?

Back 205

Yes

Front 206

Is contributory negligence a defense to strict liability?

Back 206

Not if the plaintiff failed to realize the danger or guard against it.

Front 207

What are the five theories that a plaintiff can use to recover for products liability?

Back 207

(1) Intent, (2) negligence, (3) strict liability, (4) implied warranties of merchantability and fitness for a particular purpose, and (5) representation theories (express warranty and misrepresentation).

Front 208

If the exam question doesn't give you one of the five theories of product liability, which one should you use?

Back 208

Strict liability -- it's the easiest to prove

Front 209

To find liability under any of the five products liability theories, what two elements do you have to show?

Back 209

(1) A defect and (2) the existence of the defect when the product left the defendant's control.

Front 210

What are the three types of defects in products liability cases?

Back 210

(1) Manufacturing defects, (2) design defects, and (3) inadequate warning defects

Front 211

What is a manufacturing defect in products liability and how do you prove it?

Back 211

If a product emerges from manufacturing different and more dangerous than the products made properly, then it has a manufacturing defect. Defendant will be liable if plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect (and defendant must anticipate reasonable misuse). It applies to defective food.

Front 212

What is a design defect in products liability and how do you prove it?

Back 212

When all products of a line are the same but have dangerous propensities, it might be a design defect. Plaintiff has to show that the defendant could have made the product safer, without serious impact on the product's price or utility.

Front 213

What is an inadequate warning defect in products liability?

Back 213

A product may be defective as a result of the manufacturer's failure to give adequate warnings as to the risks involved in using the product that may not be apparent to users. For prescription drugs and medical devices, warnings given to "learned intermediaries" will usuall be good enough.

Front 214

Discuss government safety standards in the context of products liability

Back 214

A product's noncompliance with government safety standards establishes that is defective, but compliance won't necessarily establish that it's not defective--but defendant can introduce it as evidence.

Front 215

Discuss "privity" as a defense in products liability cases.

Back 215

It's not a defense just that there is no contractual privity between the defendant and plaintiff. But it's a favorite wrong choice on the test.

Front 216

What plaintiffs can recover in products liability cases?

Back 216

Any foreseeable plaintiff, including a bystander, can sue any commercial supplies in the chain of distribution regardless of the absence of a contractual relationship between them.

Front 217

State the rule for the product liability case theory of INTENT (one of the five)

Back 217

Defendant will be liability to anyone injured by an unstafe product if defendant intended the consequences or knew that they were substantially certain to occur. Products liability actions based on intent aren’t very common, and the most likely tort is BATTERY.

Front 218

State the rule for a product liability case theory based on negligence.

Back 218

The prima facie case is the same as in any negligence case. Plaintiff has to establish (1) duty, (2) breach, (3) actual and proximate cause, and (4) damages.

Front 219

What is the duty owed in a products liability case based on negligence?

Back 219

A duty of care is owed to any foreseeable plaintiff

Front 220

In a products liability case based on negligence, who can sue?

Back 220

Privity with the defendant isn't required anymore, so any foreseeable plaintiff can sue. This includes: (1) users, (2) consumers, and (3) bystanders.

Front 221

In a products liability case based on negligence, who can be a defendant?

Back 221

Any commercial supplier such as a manufacturer, a wholesaler, and a retailer.

Front 222

How do you establish breach of duty in a products liability case based on negligence?

Back 222

Breach of duty is shown by (1) negligent conduct leading to (2) the supplying of a defective product. (a) Proof of negligence: negligence is proved the same as in a standard negligence case (i.e., res ipsa loquitor is available).

Front 223

What's a special problem with holding retailers and wholesalers liable in a products liability case based on negligence?

Back 223

It is very difficult to hold retailers and wholesalers liable for negligence because they can usually satisfy their duty a cursory inspection.

Front 224

Discuss the rule on causation in a products liability case based on negligence.

Back 224

An intermediary's (e.g. wholesaler's) negligent failure to discover a defect does not supersede the original manufacturer's negligence unless the intermediary's conduct exceeds foreseeable negligence.

Front 225

How do you establish a prima facie case of strict liability in products liability?

Back 225

Prove (1) a strict duty (defendant has a duty to supply safe products) owed by a commercial supplier of a product, (2) the production or sale of a defective product, (3) actual and proximate cause, and (4) damages.

Front 226

What are the rules about who can sue for strict tort liability in products liability

Back 226

Privity isn't required: users, consumer, and bystanders can sue. (1) No substantial alteration: for liability to attach, the product must reach plaintiff without substantial alteration. (2) Strict liability doesn't apply to products (this is true even if a product is provided as an incident to a service).

Front 227

Who can be defendants in a products liability case in strict liability

Back 227

Any commercial supplier. However, casual sellers aren't liable. Retailers may be liable even if they have no opportunity to inspect the product.

Front 228

What does plaintiff have to prove to prove that a product is defective in a strict liability products liability case?

Back 228

He must show that the product is defective. It must make the product dangerous beyond the expectation of the ordinary consumer.

Front 229

What is the rule about causation in a strict liability products liability case?

Back 229

For actual cause, plaintiff has to show that the defect existed when the product left defendant's control. If the defect is difficult to trace, plaintiff might be able to rely on an inference that this type of product failure ordinarily occurs only as a result of a product defect. Proximate cause is the same as in negligence cases.

Front 230

What kind of damages can you recover in a strict liability products liability case?

Back 230

Physical injury or property damage must be shown; recovery will be denied if the sole claim is for economic loss.

Front 231

Does assumption of the risk or comparative negligence apply in a strict liability products liability case?

Back 231

Yes.

Front 232

Does contributory negligence apply in a strict liability products liability case?

Back 232

Ordinary contributory negligence is no defense where plaintiff merely failed to discover the defect or guard against its existence, or where plaintiff's misuse was reasonably foreseeable.

Front 233

Are disclaimers relevant in negligence or strict liability products liability cases?

Back 233

No, they are irrelevant

Front 234

What is the implied warranty of merchantability in a products liability case?

Back 234

Merchantability refers to whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used

Front 235

What is the doctrine of fitness for a particular purpose in a products liability case?

Back 235

Arises when the 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 and judgment in selecting the goods

Front 236

Who can sue in a products liability case based on merchantability and fitness for a particular purpose?

Back 236

Most courts don't require vertical privity. Most of them have adopted a narrow version of the horizontal privity requirement: this means the buyer, family, household, and guests can sue for personal injury.

Front 237

Do the two warranties (merch + fitness) in products liability cases extend to bailments and leases as well as sales?

Back 237

Yes

Front 238

What constitutes a breach of merchantability or fitness in a products liability case?

Back 238

If the product fails to live up to either of the warranties, then it's breached. You don't have to prove any fault on defendant's part.

Front 239

Do actual and proximate cause apply in products liability cases based on merch or fitness?

Back 239

Yes

Front 240

What damages are available in products liability cases based on warranties of merch or fitness?

Back 240

Personal injury and property damages, as well as purely economic losses, are recoverable

Front 241

What defenses are available in a products liability case based on warranties of merch or fitness?

Back 241

Assumption of the risk, which is using a product while knowing of the breach of warranty, and contributory negligence apply. Failure to give notice of a breach is a defense under the UCC (even in a personal injury case).

Front 242

What are the two "representation" theories in products liability cases?

Back 242

(1) Express warranty--any affirmation of fact or promise concerning goods that become part of the basis of the bargain, or (2) misrepresentation of fact--those concerning a product where (a) the statement was of a material fact concerning quality or uses of goods (mere puffery is insufficient), and (b) the seller intended to induce reliance by the buyer in a particular transaction.

Front 243

What do you have to prove in the representation theories in products liability cases?

Back 243

(1) An express warranty or misrepresentation of fact, (2) justifiable reliance, and (3) causation and damages.

Front 244

What is justifiable reliance in a products liability case based on a representation theory?

Back 244

The representation must be a substantial factor in inducing the purchase. It could be a prior purchaser's reliance (not just the victim's).

Front 245

What defenses are available in products liability case based on a representation theory case?

Back 245

Assumption of the risk is not a defense if the plaintiff is entitled to rely on the representation.

Front 246

Generally speaking, what is nuisance?

Back 246

Nuisance isn't a separat tort in itself. Nuisances are a type of harm--the invasion of either property rights or publics rights by conduct that's tortious because it falls into the usual categories of tort liability (i.e., intentional, negligent, strict liability). There are two types: private and public. The unreasonable prong is not required in strict liability cases.

Front 247

What qualifies as a private nuisance?

Back 247

Private nuisance is a substantial, unreasonable interference with another private individual's use or enjoyment of property that he actually possesses or to which he has a right of immediate possession.

Front 248

In private nuisance cases, what qualifies as a substantial interference?

Back 248

Substantial interference is offensive, inconvenient, or annoying to the average person in the community. Hypersensitivity or specialized use doesn't count.

Front 249

In private nuisance cases, what qualifies as unreasonable interference?

Back 249

The severity of the inflicted injury must outweigh the utility of defendant's conduct. In balancing these interests, courts consider that every person is entitled to use his own land in a reasonable way, considering the neighborhood, land values, and existence of alternative conduct. It's not required for strict liability cases.

Front 250

What's the difference between trespass to land and private nuisance?

Back 250

In trespass, there's an interference with the landowner's exclusive possession by a physical invasion; in private nuisance, there is an interference with use or enjoyment.

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What constitutes a public nuisance?

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It's an act that unreasonably interferes with the health, safety, or property rights of the community. E.g., using a building for criminal activities such as prostitution.

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How can a private party recover for a public nuisance?

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It's only available if the private party suffered unique damage not suffered by the public at large.

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What remedies are available for nuisance cases?

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Damages and injunctive relief (if the legal remedy is unavailable or inadequate--the court will consider the relative hardships, but not if the defendant's conduct was willful).

Front 254

Explain abatement by self-help in nuisance cases

Back 254

In private nuisance cases, self-help abatement is available after notice to the defendant and his refusal to act. Only necessary force can be used. In public nuisance caases, only a public autority or private party who suffered some unique damage can seek an injunction.

Front 255

What are the four defenses available in nuisance cases?

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(1) legislative authority (i.e., zoning permits it); (2) conduct of others (you're only liable for the damage you cause); (3) contributory negligence (in negligence theory cases); (4) coming to the nuisance.

Front 256

Explain the "coming to the nuisance" defense in nuisance cases

Back 256

One can "come to a nuisance" (by purchasing land next to an already existing nuisance) and thereafter, pursue an action. It isn't generally a bar to the plaintiff's action unless she "came to the nuisance" for the sole purpose of bringing a harassing lawsuit.

Front 257

Generally explain vicarious liability

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It's liability that's derivatively imposed. This means that one person commits a tortious act against a third party and another person will be liable to the third party for the act.

Front 258

What is the doctrine of respondeat superior?

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It's one of the a vicarious/derivative liability fact patterns. A master/employer will be vicariously liable for tortious acts committed by his servant/employee if the tortious acts occur within the scope of the employment relationship.

Front 259

What are the three possible exceptions to vicarious liability under the doctrine of respondeat superior?

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(1) If the employee's deviation in time or geographic area is substantial the employer isn't liable; but a minor deviation for the employee's own purpose is just a frolic or detour. (2) Usually not liable for intentional torts of the employee. (3) It's just an independent contractor.

Front 260

What are three example exceptions to exception that employers aren't liable for their employees torts?

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(1) When force is authorized in the employment (a bouncer at a bar), (2) friction is generated by the employment (e.g., a bill collector), (3) employee is furthering the business of the employer.

Front 261

Explain negligent hiring.

Back 261

It's not a vicarious liability doctrine, although it should come up in the context of vicarious liability. It says that employees may be liable for negligently selecting or supervising their employees. It's a tort separate from respondeat superior.

Front 262

Explain the independent contractor exception to respondeat superior and two broad exceptions to it.

Back 262

A principal usually isn't liable for tortious acts of her agent if the agent is an independent contractor. However: (1) if the independent contractor is engaged in inherently dangerous activities or (2) the duty is simply not delegable because of public policy (e.g., not building a fence around an excavation site)

Front 263

Explain the tort liability of partners and joint venturers

Back 263

It's one of the a vicarious/derivative liability fact patterns. Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture.

Front 264

What is the general rule for the liability of automobile drivers?

Back 264

It comes up in the vicarious/derivative liability fact patterns. The general rule rule is that the owner is not vicariously liable for the tortious conduct of another person driving his automobile. But there's (1) the family car doctrine, (2) the permissive use doctrine, and (3) negligent entrustment.

Front 265

What is the family car doctrine?

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It comes up in the vicarious/derivative liability fact patterns. In many states, the owner is liable for tortious conduct of immediate family or household members who are driving with the owner's express or implied permission.

Front 266

What is the permissive use doctrine in the context of cars and tort liability?

Back 266

It comes up in the vicarious/derivative liability fact patterns. It goes further than the family car doctrine to hold the owner liable for damages caused by *anyone* driving with the owner's consent.

Front 267

What is the negligent entrustment doctrine in automobile liability?

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It comes up in the vicarious/derivative liability fact patterns, but it is *not* a derivative liability issue. An owner might be liable for his negligence in entrusting the car to a driver.

Front 268

What is the liability of a bailor for a bailee?

Back 268

It comes up in the vicarious/derivative liability fact patterns. The general rule is that the bailor is not vicariously liable for the tortious conduct of his bailee. But there *is* the negligent entrustment doctrine…

Front 269

What is the liability of a parent for a child?

Back 269

It comes up in the vicarious/derivative liability fact patterns. The general rule is that the parent isn't liable for the tortious conduct of the child at common law. Most states, however, make parents liable for the willful and intentional torts of their minor child up to a certain dollar amount.

Front 270

What are two circumstances in which parents are liable for the torts of their children?

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It comes up in the vicarious/derivative liability fact patterns. Usually parents aren't liable, but (1) when children act as agents for their parents and (2) parents are liable for their own negligence in allowing the child to do something (e.g., use a dangerous object without proper instruction).

Front 271

What is the liability of tavernkeepers for their intoxicated customers?

Back 271

It comes up in the vicarious/derivative liability fact patterns. Most states have Dramshop Acts to create a cause of action in favor of any third person injured by an intoxicated custom.

Front 272

Explain when joint and several liability arises in tort cases

Back 272

Where two or more negligent acts combine to proximately cause an indivisible injury, each negligence is jointly and severally liable (i.e., the are each liable to the plaintiff for the entire damage incurred). If the injury is divisible, each defendant is liable only for the identifiable portion.

Front 273

What is the liability of two defendants who act in concert?

Back 273

When two or more defendants act in concert and injure plaintiff, each is jointly and severally liable for the entire injury. This is true even if the injury is divisible.

Front 274

What are some statutory limitations to joint and several liability?

Back 274

Many states have abolished joint liability either (1) for those defendants judged to be less at fault than the plaintiff or (2) for all defendants regarding noneconomic damages. In these cases, liability is proportional to defendant's fault.

Front 275

In the context of joint and several liability, what is a "satisfaction"?

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Recovery of full payment is satisfaction. Only one satisfaction is allowed. Until there is satisfaction, however, one may proceed against all jointly liable parties.

Front 276

In the context of joint and several liability, what is a "release"?

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At common law, a release of one joint tortfeasor was a release of all joint tortfeasors. A majority of states now provide that a release of one tortfeasor does not discharge other tortfeasors unless expressly provided in the release agreement.

Front 277

How should you distinguish contribution from indemnity?

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For contribution to apply, both defendants must have a measurable degree of culpability for the tort; indemnity applies when one of the parties is much more responsible than the others.

Front 278

What is the rule for contribution in joint and several liability cases?

Back 278

It allows the defendant who pays more than his share of damages under joint and several liability to have a claim against the other jointly liable parties for the excess. The contribution defendant must be originally liable, and it's not applicable for intentional torts.

Front 279

What are two methods of apportionment in contribution claims?

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(1) Most states use comparative contribution, in which contribution is imposed in proportion to the relative fault of the defendants. (2) In a minority of states, apportionment is in equal shares regardless of degrees of fault.

Front 280

Explain indemnity and four circumstances in which it's available

Back 280

Indemnity shifts the entire loss among tortfeaors. It is available: (1) by contract, (2) in vicarious liability situations, (3) in strict products liability, (4) in some jurisdictions, where there is an identifiable difference in the degree of fault.

Front 281

Explain the survival of tort actions.

Back 281

Survival acts allow one's cause of action to survive the death of one or more parties. They apply to actions involving torts to property and torts resulting in personal injury. Those invading an intangible personal interest (defamation, right of privacy, malicious prosecution) expire on the victim's death.

Front 282

Explain wrongful death

Back 282

Grants recovery for pecuniary injury resulting to the spouse and next of kin. It's only allowed to the extent that the deceaused could have recovered in an action had he lived. Decedent's creditors have no claim to the amount awarded, however.

Front 283

What are the two derivative claims for tortious interference with family relations?

Back 283

(1) Husband-wife: either spouse may bring an action for indirect interference with consortium and services caused by defendant's intentional or negligent tortious conduct against the other spouse. (2) A parent may maintain an action for loss of a child's services as a result of defendant's tortious conduct, whether intentional or negligent. The child doesn't have a similar claim for loss of parent's services.

Front 284

Discuss intra-family tort immunities

Back 284

Traditionally, family members couldn't sue each other. Most states have abolished husband-wife immunity. A slight majority also abolished parent-child immunity. Those that keep it do not apply it in intentional tort cases or for auto accidents.

Front 285

What is the liability of the federal government for torts?

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The US waived immunity from most torts under the Federal Tort Claims Act. Still immune for: (1) assualt, (2) battery, B282(3) false imprisonment, (4) false arrest, (5) malicious prosecution, (6) abuse of process, (7) libel and slander, (8) misrepresentation, (9) interference with contract rights.

Front 286

What is the liability of the state government for torts

Back 286

Mostly the same as the federal government, and this extends down to the municipalities

Front 287

What is the liability of public officials in tort?

Back 287

Public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose. They are liable for ministerial acts.

Front 288

Do charities have immunity from torts?

Back 288

Most states have eliminated charitable immunity.