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63 Cards in this Set

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What are the elements for Products Liability based on Negligence?
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.
What is the attractive nuisance doctrine?
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.
What are the elements for Intentional Interference with Business Relations, Contracts, or Prospective Economic Advantage?
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.
What is the duty of care owed to a social guest by an occupier of land?
A social guest is a "licensee," and the owner has a duty to warn licensees of all known traps (conditions) concealed on the land.
Can P recover under a COA for battery, if she suffered no harm?
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.
Under an Indirect Cause Case, when will an intervening event cut off D's liabiliy?
Whether an intervening event will cut off D's liability & be deemed superceding is determined by foreseeability.
What is the intent requirement for battery?
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.
What are the elements for a prima facie case for Products Liability under Strict Liability?
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.
If P is contributorily negligent, can she recover under strict liability for a defective product?
Yes, contributory negligence is not a defense to strict liablity actions.
The only defense to SL is comparative fault.
When may a D be held liable for Defamation on a matter of Public Concern, not involving a public figure?
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.
What is False Light?
Widespread dissemination of material falsehood about P, that would be objectionale to an average (reasonable) person.
i.e., big picture & fine print
When will an intervening act cut off liability?
An unforeseeable intervening force creating an unforeseeable harmful result gives rise to a superseding force, which cuts off liability.
What is joint and several liability?
Under joint and several liability, each tortfeasor is liable to P for the entire damage incurred.
What must P prove in a suit for strict liability of defectively designed product?
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.
Can P recover for humilation under a COA for False Imprisonment?
Yes, P can recover for humilation suffered while falsely imprisoned.
When is a Principal vicariously liable for the tortious acts of a Independent Contractor?
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.
When is there a Nuisance?
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.
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?
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.
Can P recover under a claim of strict products liability if P suffers only economic loss?
No, most Cts refuse to extend strict products liability to cases which P sufferes only economic loss unaccompanied by physical harm to P.
If D makes a defamatory statement about P in a judicial proceeding, is D protected by privilege?
Yes, all statements made by judge, juror, counsel, witnesses or parties in a judicial proceeding are absolutely privileged.
If a rescuer (A) is injured while trying to save person (B) who negligently placed himself in peril, can B raise any defenses?
Yes, rescuers must act reasonably & their conudct may be evaluated for negligence. A may raise a comparative fault defense.
When does the statute of limitations begin to run for malpractice claims?
Generally, in a malpractice action the patient must know of the injury before the SOL begins, and it's tolled until then.
What standard of care is owed by Bailors to Bailees for a Gratuitous Bailament?
Gratuitous Bailments - if bailment is for sole benefit of bailee, bailor must inform bailee of all known defects in chattel.
What standard of care is owed by Bailors to Bailees for a Bailament for Hire?
Bailament for Hire - bailor owes a duty to inform bailee of all reasonably knowable defects.
When is a automobile owner liable for the torts of a driver he lent his car to?
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.
What duty of care does a supermarket owe to a customer?
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.
Can P recover for emotional distress alone under a COA for Trespass to Chattel?
No, emotional distress alone is not sufficient to satisfy the actual damages requirement for an trespass to chattels.
What duty does a shopping center owe to a P who was injured after breaking into the mall?
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.
Can a principal sue an independent contractor for stealing a potential employee?
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.
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?
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.
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?
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.
If a hockey player intentionally hit a puck into the stands, is he liable to the injured spectator?
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.
Does an landowner owe a duty to a trespassing child?
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.
In a "Zone of Danger" Jx, when can P, who witnessed an injury to a 3rd party, recover for emotional distress?
If P is within a "zone" where there is a foreseeable risk of injury caused by D's neligent conduct, i.e., near miss.
What is the alternative approach to "zone of danger" where P can recover for emotional distress?
(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.
Can a patient sue his doctor for failure to disclose the risks assoicated with procedure, even if he/she is not harmed?
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.
Can D be liable for injuries caused by a messanger pigeon he trains?
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.
Can a prima facie case for False Imprisonment be made if an airline delays the release of a passenger's bags?
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.
Does P have a COA if her doctor misdiagnosis her skin rash as a venereal disease?
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.
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?
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.
Can Strict Liability be the basis for a nuisance action?
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.
Is D strictly liable for injuries caused by his honeybees?
No, honeybees are considered domestic animals.
When can a person lose his invitee status for the purposes of suing a landowner for injuries suffered on the latter's land?
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.
If a child's father keeps him from his mother, who has sole custody, is there a COA for false imprisonment?
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.
Can P recover in a partial comparative negligence Jx, if her % of fault was greater than one, of multiple, defendants?
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.
Can a undiscovered trespasser sue a landowner for injuries he suffered from wild animals that the landowner kept as pets?
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.
Can P recover only nominal damages or damages due to distress in a misrepresentation action against D?
No, P can only recover if he has suffered actual pecuniary loss as a result of reliance of D's false statements.
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?
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.
What's Assumption of the Risk?
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.
What risks may not be assumed because of public policy?
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.
Privilege of Arrest for Felonies - Defense to False Imprisonment.
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.
Privilege of Arrest for Misdemeanor- Defense to False Imprisonment.
Privileged if misdemeanor was a breach of the peace and was committed in the presence of the arresting party.
Shopkeepers Privilege - Defense to False Imprisonment.
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.
What are the elements of Malicious Prosecution?
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.
What are the elements of Abuse of Process?
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.
Implied Warranty of Merchantability.
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.
What is merchantable?
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.
What are the elements for Implied Warranty of Fitness?
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.
Misrepresentation of Express Warranty.
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
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?
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
What are the elements of the Tort of Misrepresentation?
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.
What is a Survival Act?
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.
Wrongful Death Act
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.