Cal. Torts 2007

Front 1

What are the elements for Products Liability based on Negligence?

Back 1

Same as Negligence
1. Duty to foreseeable P: Ordinary and Reasonable Care.
2. Breach
3. Actual & Proximate Cause: Existence of defect when product left D's control.
4. Damages: P must prove physical harm & P cannot recover for economic loss alone.

Front 2

What is the attractive nuisance doctrine?

Back 2

A landowner has a duty to exercise ordinary care to avoid foreseeable risk of harm to children caused by artificial conditions on D's property, even if child trespassed.

Front 3

What are the elements for Intentional Interference with Business Relations, Contracts, or Prospective Economic Advantage?

Back 3

1. Existence of a valid contractual relationship btw P and 3rd party or a valid business expectancy of P;
2. D knew of expectancy;
3. Intentional interference by D that induces breach or termination of expectancy or relationship; and
4. Damage to P.

Front 4

What is the duty of care owed to a social guest by an occupier of land?

Back 4

A social guest is a "licensee," and the owner has a duty to warn licensees of all known traps (conditions) concealed on the land.

Front 5

Can P recover under a COA for battery, if she suffered no harm?

Back 5

Yes, a P's inability to prove actual damages will not bar recovery, b-cuz damages is not an element of a prima facie case.
P may recover nominal damages.
Battery requires (1) A harmful or offensive contact, (2) To P.

Front 6

Under an Indirect Cause Case, when will an intervening event cut off D's liabiliy?

Back 6

Whether an intervening event will cut off D's liability & be deemed superceding is determined by foreseeability.

Front 7

What is the intent requirement for battery?

Back 7

D must have the intent to cause the harmful of offensive contact, i.e., if D knew with substantial certainty the consequences of her action.

Front 8

What are the elements for a prima facie case for Products Liability under Strict Liability?

Back 8

1. D must be a merchant.
2. Product was defective.
a. Manufacturing Def;
b. Design Def; or
c. Inadequate warning
3. Product not altered after
it left D's hands.
4. Foreseeable User & Use.

Front 9

If P is contributorily negligent, can she recover under strict liability for a defective product?

Back 9

Yes, contributory negligence is not a defense to strict liablity actions.
The only defense to SL is comparative fault.

Front 10

When may a D be held liable for Defamation on a matter of Public Concern, not involving a public figure?

Back 10

1. P must prove that D's statement was false; and

2. D was negligent.

If P was a public figure, she would have to prove that D acted wil malice.

Front 11

What is False Light?

Back 11

Widespread dissemination of material falsehood about P, that would be objectionale to an average (reasonable) person.
i.e., big picture & fine print

Front 12

When will an intervening act cut off liability?

Back 12

An unforeseeable intervening force creating an unforeseeable harmful result gives rise to a superseding force, which cuts off liability.

Front 13

What is joint and several liability?

Back 13

Under joint and several liability, each tortfeasor is liable to P for the entire damage incurred.

Front 14

What must P prove in a suit for strict liability of defectively designed product?

Back 14

P must prove that an alternative hypothetical design is (1) safer, (2) cost effective, and (3) practical - does not undermine the utility of the product.

Front 15

Can P recover for humilation under a COA for False Imprisonment?

Back 15

Yes, P can recover for humilation suffered while falsely imprisoned.

Front 16

When is a Principal vicariously liable for the tortious acts of a Independent Contractor?

Back 16

1. When the Principal is subject to a nondelegable duty; or
2. If D is an occupier of land & the injury is to his invitee, i.e., mall owner & customer.

Front 17

When is there a Nuisance?

Back 17

When P suffers a substantial and unreasonable degree of interference with his ability to use or enjoy his land.
D's conudct can be intentional, negligent, or without fault.
Ct. will balance the parties' interests.
Compliance with zoning ordinance is highly persuasive that the use is not a nuisance.

Front 18

If P violates criminal statute and then is injured by the negligent act of D, what effect will P's violation have in a traditional contributory negligence jx?

Back 18

If the facts do not establish that P was contributorily negligent, P's violation would be relevant in judging the reasonableness of D's conduct.

Front 19

Can P recover under a claim of strict products liability if P suffers only economic loss?

Back 19

No, most Cts refuse to extend strict products liability to cases which P sufferes only economic loss unaccompanied by physical harm to P.

Front 20

If D makes a defamatory statement about P in a judicial proceeding, is D protected by privilege?

Back 20

Yes, all statements made by judge, juror, counsel, witnesses or parties in a judicial proceeding are absolutely privileged.

Front 21

If a rescuer (A) is injured while trying to save person (B) who negligently placed himself in peril, can B raise any defenses?

Back 21

Yes, rescuers must act reasonably & their conudct may be evaluated for negligence. A may raise a comparative fault defense.

Front 22

When does the statute of limitations begin to run for malpractice claims?

Back 22

Generally, in a malpractice action the patient must know of the injury before the SOL begins, and it's tolled until then.

Front 23

What standard of care is owed by Bailors to Bailees for a Gratuitous Bailament?

Back 23

Gratuitous Bailments - if bailment is for sole benefit of bailee, bailor must inform bailee of all known defects in chattel.

Front 24

What standard of care is owed by Bailors to Bailees for a Bailament for Hire?

Back 24

Bailament for Hire - bailor owes a duty to inform bailee of all reasonably knowable defects.

Front 25

When is a automobile owner liable for the torts of a driver he lent his car to?

Back 25

1. If owner (O) lent the car to driver (D), so D could run errands for benefit of O - e.g., D becomes O's agent; and
2. If there's a permissive use statute, which imposes liability on O, because he consented to D's borrowing the car.

Front 26

What duty of care does a supermarket owe to a customer?

Back 26

The supermarket, as an occupier of land, owes its customers the duty to warn of nonobvious conditions and to make reasonable inspections to discover dangerous conditions, i.e., all reasonably knowable traps on the land.

Front 27

Can P recover for emotional distress alone under a COA for Trespass to Chattel?

Back 27

No, emotional distress alone is not sufficient to satisfy the actual damages requirement for an trespass to chattels.

Front 28

What duty does a shopping center owe to a P who was injured after breaking into the mall?

Back 28

Generally, a landowner owes no duty to a trespasser. However, discovered/anticipated trespassers are owed a duty of RPP for Activities & warning of all known, man-made death traps on the land.

Front 29

Can a principal sue an independent contractor for stealing a potential employee?

Back 29

Yes, under a COA for interference with business relations. But, D's act may be privileged where it is proper to attempt to obtain business for D, particularly if the interference is only with P's prospective advantage and not an existing K.

Front 30

Will P be precluded from bringing a COA for products liability, if he uses the product in the way promoted in advertsing, but proscribed in the owner's manual?

Back 30

No, a simple warning of danger in an owner's manual is not sufficient if it would not be effective in detering users from using the product if such misuse was foreseeable. Manufacturer should not advertise it for such use.

Front 31

Does P have a COA for conversion if she loans D her car, who then loans it to a 3rd party without P's consent?

Back 31

Yes, P may recover the FMV of the car, because a bailee is liable to the owner for conversion if the baliee uses the chattel in such a manner as to constitute a material breach of the bailment agreement. Conversion does not require permanent deprivation of the chattel, only a serious invasion of P's interest.

Front 32

If a hockey player intentionally hit a puck into the stands, is he liable to the injured spectator?

Back 32

Yes, (1)if the player intended (or knew with substantial certainty) that it would strike a spectator he would be liable. (2) If he intended to cause apprehension of contact (assualt) transfered intent allows us to use this for a COA for battery. (3) Assumption of the risk is not a defense to ITs.

Front 33

Does an landowner owe a duty to a trespassing child?

Back 33

Yes, there is a duty to children of tender years (12 & under)to protect them against artificial conditions, which b-cuz of their age, they can't appreciate the risk. Usually RPP, But the greater the likelihood that kids will trespass, the greater the duty on D, i.e., attractive nuisance doctrine.

Front 34

In a "Zone of Danger" Jx, when can P, who witnessed an injury to a 3rd party, recover for emotional distress?

Back 34

If P is within a "zone" where there is a foreseeable risk of injury caused by D's neligent conduct, i.e., near miss.

Front 35

What is the alternative approach to "zone of danger" where P can recover for emotional distress?

Back 35

(1) P must be closely related to the person injured, (2) P was present at the scene of the injury, (3) P personally oberved of percieved the event, and (4) P has some physical injury from the distress.

Front 36

Can a patient sue his doctor for failure to disclose the risks assoicated with procedure, even if he/she is not harmed?

Back 36

Generally, no. while a complete absence of consent to a medical procedure may sometimes constitute battery, which does not require damage as an element, a nondisclosure of risks of the procedure is characterized as a breach of duty under a negligence COA, which requires damages.

Front 37

Can D be liable for injuries caused by a messanger pigeon he trains?

Back 37

Yes, although the owner of a domestic or inherently non-dangerous animal, such as a pigeon, is not strictly liable for injuries caused by the animal, D may be liable if he acted negligently.

Front 38

Can a prima facie case for False Imprisonment be made if an airline delays the release of a passenger's bags?

Back 38

Yes, if the delay in releasing P's lugagge had the effect of confining him to the airport against his will. The act or omission that restrains P can be directed against P's property.

Front 39

Does P have a COA if her doctor misdiagnosis her skin rash as a venereal disease?

Back 39

Yes, P may have a COA for negligence, if she can prove that if an average doctor practicing within a similar community would have correctly diagnosed the rash. Also, P's continued suffering from the rash's misdiagnosis satisfies the damage element.

Front 40

Can a doctor's misdiagnosis of a patient's rash as a venereal disease be grounds for defamation, if it insinuates that her husband got it from a prostitute?

Back 40

Yes, the husdand has a COA, b-cuz it is slander per se, but a qualified privilege is recognized when the recipient has an interest in the information & its is reasonable for D to publish the statement.

Front 41

Can Strict Liability be the basis for a nuisance action?

Back 41

Yes, when a wild animal, abnormally dangerous domestic animal, or an abnormally dangerous activity interferes with P's use and enjoyment of her land. However, an intereference is not substantial if it only interferes with P's specialized use of her property.

Front 42

Is D strictly liable for injuries caused by his honeybees?

Back 42

No, honeybees are considered domestic animals.

Front 43

When can a person lose his invitee status for the purposes of suing a landowner for injuries suffered on the latter's land?

Back 43

A peson may lose his invitee status if he exceeds the scope of the invitation - if goes onto a portion of the property where the invitation is not reasonably extended.

Front 44

If a child's father keeps him from his mother, who has sole custody, is there a COA for false imprisonment?

Back 44

Yes, even if the kid is unaware of the confinement, Cts. recognize and exception to the awareness confinement if the kid is actually injured. And a lengthy separation from his mom constitutes harm.

Front 45

Can P recover in a partial comparative negligence Jx, if her % of fault was greater than one, of multiple, defendants?

Back 45

Yes, when multiple Ds have contributed to P's injuries, P's negligence is compared with the total negligence of the other parties. All parties' claims will be reduced by their % of fault.

Front 46

Can a undiscovered trespasser sue a landowner for injuries he suffered from wild animals that the landowner kept as pets?

Back 46

Generally no. Although owners of wild animals are strictly liable for injuries by the animal, the rule is not imposed in favor of undiscovered trespassers in the absence of negligence.

Front 47

Can P recover only nominal damages or damages due to distress in a misrepresentation action against D?

Back 47

No, P can only recover if he has suffered actual pecuniary loss as a result of reliance of D's false statements.

Front 48

Can P recover for emotional distress if he suffered physical injuries after seeing an injured person, but not witnessing the accident itself, in a "zone of danger" Jx?

Back 48

No, if P's distress is caused by threat of physical impact, rather than from physical contact, Cts. require that P be in the zone of danger of physical harm from D's negligent conduct, i.e., near miss.

Front 49

What's Assumption of the Risk?

Back 49

P is denied recovery if he assumed the risk of any damage caused by D's acts, express or implied.
P must have known of the risk and voluntarily assumed it.
Knowledge is implied where the risk is one that the average person would clearly appreciate.
Not a defense it IT.

Front 50

What risks may not be assumed because of public policy?

Back 50

1. Common carriers and public utilities cannot limit liability with disclaimers.
2. Where a statute is vioalted.
3. In situtations of fraud, force, or emergency.

Front 51

Privilege of Arrest for Felonies - Defense to False Imprisonment.

Back 51

Felony without warrent
police:reasonable grounds that felony was committed and belief that P committed a felony.
Private: if felony was actually committed and reasonable belief that P did it.

Front 52

Privilege of Arrest for Misdemeanor- Defense to False Imprisonment.

Back 52

Privileged if misdemeanor was a breach of the peace and was committed in the presence of the arresting party.

Front 53

Shopkeepers Privilege - Defense to False Imprisonment.

Back 53

1. Reasonable belief that theft was committed;
2. Detention was in a reasonable manner (non-deadly force); and
3. Detention only for reasonable time, for purpose of investigation.

Front 54

What are the elements of Malicious Prosecution?

Back 54

1. Criminal process against P;
2. Termination in favor of P;
3. Absence of probable cause;
4. D's improper purpose (not justice); and
5. Damages.

Front 55

What are the elements of Abuse of Process?

Back 55

Tort to use civil or criminal process to bring about an unintended result.
1. Wrongful use of process for an ulterior motive; and
2. Some definite act or threat against P to accomplisj the ulterior purpose.

Front 56

Implied Warranty of Merchantability.

Back 56

There is an implied warranty that goods are merchantable and are generally fit for the particular purposes for which such goods are used.
Requires only horizontal privity - buyer, buyer's family, household and guests.
Causation & Damages same as negligence.
Proof of fault not required.

Front 57

What is merchantable?

Back 57

Goods are of a quality equal to that generally acceptable among those who deal in similar goods and are generally fit for the ordinary purposes for which such goods are used.

Front 58

What are the elements for Implied Warranty of Fitness?

Back 58

When the seller knows or has reason to know:
1. The particular purpose for which the goods are required; and
2. That the buyer is relying on the seller's skill or judgment to select of furnish suitable goods.
Horizontal privity required.
Proof of fault not required.

Front 59

Misrepresentation of Express Warranty.

Back 59

Arises where a seller or supplier makes an affirmation of fact or promise to the buyer relating to the goods that becomes the basis for the bargain.
Requires Causation & Damages

Front 60

Does P have a COA for Misrepresentation of Express Warranty if she is injured after taking medication that does not contain a warning of a risk the manufacturer is aware of?

Back 60

Yes, if P reasonably relied in the absence of a warning in believing that the medication was safe to consume.
P must prove Causation & Damages

Front 61

What are the elements of the Tort of Misrepresentation?

Back 61

Arises when a representation of a material fact by the seller about a product induces reliance by the buyer.
Neligence-P must show that a reasonable person should have known such representations to be false when making them.
Intentional-P must show that the misrepresentation was made knowingly or with reckless disregard of the facts.
Strict Liability-P must show that the representation proved false.

Front 62

What is a Survival Act?

Back 62

Generally, at CL tort actions abated at death, but most states now allow, by statute, for surviving spouse or next of kin to stand/recover in the place of a deceased victim for damages from the time of injury to the time of death.

Front 63

Wrongful Death Act

Back 63

Spouse or next of kin may recover for their own pecuniary injury, i.e., loss of support, consortium, sex, etc.
Does not allow for recovery of decedent's pain & suffering; damages under survival actions.