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149 Cards in this Set
- Front
- Back
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[Intentional Torts - Generally]
Two over-arching rules to follow when analyzing all intentional torts 1 |
-P hypersensitivity is ignored
-Every D should be held liable, regardless of "capacity" (infants too!) |
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[Intentional Torts - Torts to Person]
What are the 4 intentional torts to the person? 2-3 |
-Battery
-Assault -False Imprisonment -IIED |
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[Intentional Torts - Torts to Person]
What are the two elements required for ALL intentional torts (and will therefore not be listed in the elements for the future note cards) 1 |
-Intent (substantial certainty of result)
-Causation (substantial factor in result) |
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[Intentional Torts - Torts to Person]
Elements of Battery (2) 2 |
-Offensive Contact
-With P's person |
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[Intentional Torts - Torts to Person]
What is meant by "offensive" 2 |
Unpermitted by a person of ordinary sensibility
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[Intentional Torts - Torts to Person]
What are the two "twists" to contact with "P's person" rule 2 |
-Can be INDIRECT contact, such as setting a trap
-Can be contact with what P is HOLDING |
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[Intentional Torts - Torts to Person]
Elements of Assault (2) 2 |
-P's knowledge touching will be coming (apprehension)
-Of IMMEDIATE battery (harm/offensive touching) |
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[Intentional Torts - Torts to Person]
What is NOT sufficient to ever be assault? 2 |
Mere words
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[Intentional Torts - Torts to Person]
What is the "twist" for "apprehension" 2 |
Look ONLY to what P subjectively knows (the unloaded gun problem)
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[Intentional Torts - Torts to Person]
Elements of False Imprisonment (2) 3 |
-Restraint
-Confined to bounded area |
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[Intentional Torts - Torts to Person]
What are the 2 "twists" on the "restraint" requirement? 3 |
-Mere THREAT THAT someone would feel required to stay is enough
-P must KNOW of confinement or be HARMED by it |
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[Intentional Torts - Torts to Person]
What are the 2 "twists" to the bounded area element? 3 |
-Must be bound IN ALL DIRECTIONS
-ENOUGH that no REASONABLE means of escape KNOWN to P |
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[Intentional Torts - Torts to Person]
Elements of IIED (2) 3 |
-Outrageous conduct
-SEVERE emotional distress |
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[Intentional Torts - Torts to Person]
What is enough to be "outrageous"? 3 |
"Exceeds all bounds of decency in a civilized society"
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[Intentional Torts - Torts to Person]
What is never enough to be "outrageous" 3 |
Mere insults
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[Intentional Torts - Torts to Person]
FOUR situations where normally NON-outrageous conduct BECOMES outrageous 4 |
-Continuous in nature
-P is party of a fragile class (children, elderly, pregnant) -Common carriers (liable for "gross insults) -Where D KNOWS of P's special sensitivity |
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[Intentional Torts - Torts to Property]
What are the 3 intentional torts to property 4-5 |
-Trespass to land
-Trespass to chattels -Conversion |
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[Intentional Torts - Torts to Property]
Elements of Trespass to land (2) 4 |
-Physical invasion
-Of Real Property |
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[Intentional Torts - Torts to Property]
Who or what must create a physical invasion? 4 |
Any person or tangible object (but NOT odor/noise)
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[Intentional Torts - Torts to Property]
What level of mental state is needed to fulfill trespass 4 |
Specific knowledge of crossing the boarder into another's property is NOT NECESSARY
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[Intentional Torts - Torts to Property]
Elements of Trespass to chattels vs. conversion 5 |
Conversion involves greater damage
Simplistically: -Trespass to chattels = vandalism -Conversion = theft or significant damage |
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[Intentional Torts - Torts to Property]
What is the remedy for Trespass to chattels vs. conversion 5 |
Conversion = forced sale, get full FMV
Trespass to chattels = actual damanges |
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[Intentional Torts - Defenses]
What are the three important intentional tort defenses? 6-11 |
-Consent
-The Protective Privileges (Self-defense) -Necessity |
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[Intentional Torts - Defenses]
What are the two types of consent 7 |
-Express
-Implied |
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[Intentional Torts - Defenses]
What will work to negate express consent? 7 |
Fraud or duress
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[Intentional Torts - Defenses]
What are the two types of implied consent 7 |
-Custom/usage
-Objective reasonable interpretation of the circumstances |
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[Intentional Torts - Defenses]
What a pre-requisite to consent? 7 |
CAPACITY
(note: although an infant can create an intentional tort, an infant cannot consent to an intentional tort) |
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[Intentional Torts - Defenses]
For the protective privileges, WHEN may a person protect him/herself? 7 |
When tort is IN PROCESS for immanent
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[Intentional Torts - Defenses]
Under what situations may a person protect him/herself using the protective privileges? Effect of mistake? 7 |
Reasonable belief that threat is genuine
*Mistake has no effect, as long as a reasonable person would believe the threat is genuine |
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[Intentional Torts - Defenses]
What is an almost per-se example of reasonable person thinking a threat is genuine? 7 |
Shopkeeper privilege for false imprisonment
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[Intentional Torts - Defenses]
What is an acceptable level or force that may be used for a protective privilege? 7 |
Proportional force
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[Intentional Torts - Defenses]
What level of force may a person use to protect property? 7 |
Non-deadly
NOTE: this includes setting traps (shotgun spring) |
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[Intentional Torts - Defenses]
Necessity is a defense to what types of intentional torts? 11 |
Necessity is only a defense to property intentional torts
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[Intentional Torts - Defenses]
What are the two types of necessity defenses? 11 |
-Public necessity
-Private necessity |
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[Intentional Torts - Defenses]
What is required to show a public necessity? 11 |
Need to show need to protect community as a whole
Ex: shoot rabid dog |
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[Intentional Torts - Defenses]
What is requires to show private necessity? 11 |
Needed to protect interest of his own
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[Intentional Torts - Defenses]
NEVERTHELESS, what three rules apply to a person using private necessity? 11 |
-Must pay for actual harm done
-NOT liable for punitive or nominal damages -Person is privileged to stay during the period of necessity |
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[Defamation - "Regular" Definition]
What are the 4 elements of "normal" defamation? 12 |
-Statement negatively affecting D's reputation
-Concerning the P -Publication -Damage to P's reputation |
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[Defamation - "Regular" Definition]
What type of statement injuring D's reputation is required? 12 |
-Must go to the trait of D's character
NOT just mere insults |
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[Defamation - "Regular" Definition]
What are the requirements for a 'publication'? 12 |
-Info must get to a third person
NOTE: negligent publication is enough |
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[Defamation - Libel vs. Slander Distinctions]
What's the difference between libel and slander? Which one is TV & radio? 14 |
Say = slander
Radio/TV are treated as libel |
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[Defamation - Libel vs. Slander Distinctions]
What effect if the defamation is libel for "normal" defamation? 14 |
NO need to prove special damages -- general damages (possible just nominal) are presumed
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[Defamation - Libel vs. Slander Distinctions]
What are the two categories of slander? 14 |
-Slander per se
-Special damages slander? |
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[Defamation - Libel vs. Slander Distinctions]
What are the 4 types of speech that fall under "slander per se"? 14 |
Statements re:
-Business or profession -Venereal (loathsome) disease -Crime involving moral turpitude -Woman having sex |
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[Defamation - Libel vs. Slander Distinctions]
What's the effect of a slander per se? 14 |
Get automatic damages
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[Defamation - Libel vs. Slander Distinctions]
What showing is required to get damages for "special damages slander"? 14 |
Economic loss
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[Defamation - 1st Amendment Concerns]
When are 1st Am concerns implicated by a defamatory statement? 15 |
When the statement is about a MATTER of PUBLIC CONCERN
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[Defamation - 1st Amendment Concerns]
What two additional elements are required to be satisfied if the statements are about a matter of public concern? 15 |
-Falsity of the statement
-Fault on the party of the defendant (no good faith in accuracy) |
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[Defamation - 1st Amendment Concerns]
What two sub-categories of 1st amendment concerns are there re: defamation? 15 |
Statements about public figures
Statements about private figures |
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[Defamation - 1st Amendment Concerns]
What level of mens reas is sufficient for a finding of defamation against a public figure? 15 |
Recklessness / "Actual malice"
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[Defamation - 1st Amendment Concerns]
What level of mens reas is sufficient for a finding of defamation against a NON-public figure? 15 |
Negligence (no reasonable verification)
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[Defamation - Defenses]
What are the four available defenses to defamation 17-18 |
-Consent
-Truth -Absolute privileged -Qualified privlidge |
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[Defamation - Defenses]
What are the two categories of absolute privilege? 18 |
-Between spouses
-3 Government branches (includes witnesses in judicial proceedings) |
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[Defamation - Defenses]
Define the scope of the qualified privilege 18 |
Socially useful statements that we accept b/c public interest
Ex: -Statements to cops re: investigation -Recommendation letters -Newspapers in PA |
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[Defamation - Defenses]
What two elements are requisites for a qualified privilege to apply? 18 |
-Statement made in good faith
-Statements are confined to the matter asked about |
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[Invasion of Privacy - Definitions]
What are the FOUR causes of action within the right to privacy? 18-19 |
-Appropriation
-Intrusion -False Light -Disclosure |
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[Invasion of Privacy - Definitions]
Elements for Appropriation (2) 18 |
-Use of P's likeness
-For Commercial purposes |
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[Invasion of Privacy - Definitions]
What exception applies to Appropriation? 18 |
Newsworthiness
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[Invasion of Privacy - Definitions]
Elements for Intrusion (2) 18 |
-Invasion of P's seclusion
-In a way objectionable to a reasonable person Exs: -Wiretaps -Secret filming / peeing tom |
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[Invasion of Privacy - Definitions]
Exam "tricks" re: Intrusion 18 |
-P must me in area where he/she has a reasonable expectation of privacy
-There is NO requirement that D commit a trespass |
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[Invasion of Privacy - Definitions]
Elements for False Light (3) 18 |
-WIDESPREAD dissemination
-Of Material FALSEHOOD -Objectionable to an average person NOTE: often coupled with defamation action (defamation doesn't require widespread) |
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[Invasion of Privacy - Definitions]
What is the 'exam trick' to False Light? 18 |
D is liable EVEN IF good faith
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[Invasion of Privacy - Definitions]
What damages are available for false light? 18 |
DO get emotional harm damages
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[Invasion of Privacy - Definitions]
Elements of Disclosure (3) 19 |
-Widespread Dissemination
-Of CONFIDENTIAL info about P -That would be OBJECTIONABLE to an average person |
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[Invasion of Privacy - Definitions]
Exam "tricks" to Disclosure (2) 19 |
-Dof disclusre the information IS TRUE, it's just confidential in nature (medical records)
-Must be truly private (dual life scenario) |
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[Invasion of Privacy - Definitions]
Exception to the Disclosure rule 19 |
Newsworthiness exception
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[Invasion of Privacy - Defenses]
What defense is available for all the Invasion of privacy causes of action? 19 |
-Consent
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[Invasion of Privacy - Defenses]
What defense is available for ONLY for False Light and Disclosure? 19 |
-Absolute & qualified privilege
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[Various Harm to Economic Interests - Legal Proceedings]
Elements of Malicious prosecution (5) 20 |
-Institution of criminal proceedings
-Termination in P's favor -Absence of PC for prior proceedings -Improper purpose -Damages |
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[Various Harm to Economic Interests - Legal Proceedings]
Who is immune from malicious prosecution suits? 20 |
Prosecutors
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[Various Harm to Economic Interests - Legal Proceedings]
Elements of Abuse of process (2) 20 |
-Wrongful use of process with ulterior motive
-ACT or THREAT again P in order to accomplish ulterior purpose |
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[Various Harm to Economic Interests - Interference w/ Busi Relations]
Elements of Interference w/ Busi Relations (4) 20 |
-Prior K relationship (or valid K expectancy)
-D's knowledge of the relationship/expectancy -Intentional interference inducting breach -Damages |
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[Negligence - Main Elements]
What are the 5 elements required for EVERY negligence case? 21 |
-Duty
-Breach of duty -Actual cause -Proximate cause -Damages |
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[Negligence - Duty of Care: To Whom Owed]
What is the test to apply when asking to whom a duty of care is owed? 21 |
-Foreseeable zone of damage
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[Negligence - Duty of Care: To Whom Owed]
What is the exception/who is ALWAYS considered within the foreseeable zone of danger? 21 |
Rescuers
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[Negligence - Duty of Care: What Amount of Care Owed]
What is the "default" standard of conduct that MUST be included in EVERY tort essay answer? 22 |
Reasonably prudent person under similar circumstances
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[Negligence - Duty of Care: What Amount of Care Owed]
What characteristics ARE and what characteristics are NOT taken into account as a "reasonable" person? (2 things NOT taken into account, 2 things ARE taken into account) 22 |
Characteristics that DO NOT matter:
-Stupid -Insane Characteristics that DO matter: -Superior knowledge (held to HIGHER standard) -Physical disabilities (blind) |
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care]
What level of duty do CHILDREN owe? (2 rules, 1 exception) 22 |
- < 4 = cannot be negligent
- 4–18 = held to standard of like age, education, intelligence, and experience (VERY SUBJECTIVE) EXCEPTION: Children engaged in adult activities (using a motorized vehicle) |
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care]
What level of duty do PROFESSIONALS owe? (2 elements) 22 |
- Owes care of average member of profession (Custom IS the standard)
- Who practices in a similar community NOTE: Need an expert to testify |
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care - LAND POSSESSORS]
What are the TWO types of ways a land entrant can be hurt? 23-24 |
-By ACTIVITY on the land
-By encountering a dangerous CONDITION on the land |
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care - LAND POSSESSORS]
What are the FOUR Categories of land entrants? 23-24 |
-Undiscovered trespassers
-Discovered & should-have-anticipated trespassers -Licensees -Invitees |
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care - LAND POSSESSORS]
What level of duty is owed to Undiscovered Trespassers for Activities? For Dangerous Conditions? 23-24 |
NO DUTY for EITHER
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care - LAND POSSESSORS] ***
What level of duty is owed to Discovered Trespassers, Licensees, and Invitees for ACTIVITIES? 23-24 |
The "normal" level of duty (reasonably prudent under the circumstances)
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care - LAND POSSESSORS]
Who is included in the category of "discovered trespassers"? 23-24 |
Persons that D should have anticipated coming onto the land because of a pattern of previous trespassing in the past
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care - LAND POSSESSORS]
When does a person owe a duty of care to discovered trespassers regarding DANGEROUS CONDITIONS? (short version, containing 4 elements) 23-24 |
Only duty if injured by a “known, hidden, man-made death-trap”
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care - LAND POSSESSORS]
Who is included in the category of "licensees"? 23-24 |
Persons who enter land with permission, but NOT to confer economic benefit
Ex: SOCIAL GUEST |
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care - LAND POSSESSORS]
When does a person owe a duty of care to licensees regarding DANGEROUS CONDITIONS? (short version, containing 2 elements) 23-24 |
Duty to protect licensee against all known traps
(traps = hidden) |
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care - LAND POSSESSORS]
Who is included in the category of "invitees"? 23-24 |
Those who confer economic benefit or open to public
Ex: BUSINESS CUSTOMER |
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care - LAND POSSESSORS]
When does a person owe a duty of care to licensees regarding DANGEROUS CONDITIONS?? (short version, containing 2 elements) 23-24 |
Duty to protect invitee against all reasonably-knowable traps
(traps = hidden) (reasonably-knowable = includes SHOULD HAVE known) |
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care - LAND POSSESSORS]
What are the two exceptions to the land possessor duties? 23-24 |
-Fire-fighters / Police Officers
-Child trespassers |
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care - LAND POSSESSORS]
What exception applies to fire-fighters/police officers? 23-24 |
They can NEVER recover for injury that is an inherit risk of the job
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care - LAND POSSESSORS]
What exception applies to children trespassers (1 rule)? 23-24 |
Children are always owed “normal” duty for artificial conditions if D has reason to expect child trespassers (especially if there is something appealing on the land – attractive nuisance)
NOTE: Factor in age of children who would be trespassing - only reasonable duty applies (don't have to fence off pool in back yard if 17-year-olds trespass and use b/c average 17-year-olds will be careful in pool) |
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care]
What level of duty is owed if there is a breach of a statute? -- |
Breach of a statute is negligence PER SE -- but only if statute applies (see next question)
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care]
When is breach of a statute negligence per se? (2 element test) -- |
SHORT VERSION: Class of person / Class of risk
-P is in class of person statute meant to protect -P's accident was in the class of risk that the statute is trying to prevent |
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care]
What are the two exceptions to the statutory standard? -- |
-Where compliance w/ statute would be more dangerous than a violation
-Where compliance would be impossible under the circumstances (then just apply the "normal" reasonable care under the circumstances test) |
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care]
When does a person have an AFFIRMATIVE duty to act? 27 |
Generally, NEVER
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care]
What are the two exceptions to the "no duty to affirmatively act" rule? 27 |
-Duty due to pre-existing relationship
-Duty b/c D put P in peril NOTE: There is NEVER a duty to yourself in peril, but must still be reasonable -- such as calling the cops |
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care]
When is there an affirmative duty do to a pre-existing relationship? (4 examples) 27 |
-spouse
-siblings -common carriers -invitees |
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care]
What level of care does a gratuitous rescuer owe? 27 |
"normal" reasonable care under the circumstances test
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care]
What are the two special types of cases encompassed by a NEGLIGENT infliction of emotional distress? 26 |
-Fright case
-Grief Case |
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care]
What are the required elements of a NEGLIGENT infliction of emotional distress FRIGHT case? (2 elements) 26 |
-Near miss (zone of danger)
-Subsequent physical manifestations (heart attack, miscarriage, rash) |
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[Negligence - Duty of Care: What Amount of Care Owed / Special Standards of Care]
What are the required elements of a NEGLIGENT infliction of emotional distress GRIEF case? (2 elements, 3 sub-elements) 26 |
-Bystander is rendered melancholy
-Proximity to injury --Time – be there at the time --Space - nearby --Close Relationship Examples: -Corpse mishandling -Incorrect report of relative's death |
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[Negligence - Breach of Duty] ***
What two analysis steps MUST be used when evaluating breach 27 |
(1) Identify specific wrongful behavior (D did X)
(2) WHY behavior was wrongful (Doing X was unreasonable here BECAUSE reasonable people do …) |
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[Negligence - Breach of Duty]
What is the per-se rule of breach? 27 |
Res Ipsa Loquitor
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[Negligence - Breach of Duty]
WHEN is Res Ipsa Loquitor invoked by P? 27 |
When P cannot specifically show wrongful conduct
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[Negligence - Breach of Duty]
WHAT must a P show for Res Ipsa Loquitor? (2 elements) 27 |
(i) Accident is normally associated with negligence
(ii) Accident of this type is due to accident in D’s position |
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[Negligence - Breach of Duty]
WHAT RESULT if P sucessfully shows Res Ipsa Loquitor? 27 |
only GET TO JURY (and jury is free to reject res ipsa inference)
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[Negligence - Causation]
What are the two types of causation that must be proven by P 28 |
-Actual
-Proximate (foreseeable) |
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[Negligence - Causation: Actual]
Where there is one D, what is the test for actual cause? 28 |
BUT-FOR TEST:
“But-for BREACH, injury would not have happened” |
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[Negligence - Causation: Actual]
Where there is one D, what is the D's rebuttal argument for actual cause? 28 |
EVEN-IF Argument:
“Even if I was carefully, you still would have been hurt” |
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[Negligence - Causation: Actual]
What are the two available tests for actual causation, where there is more than one Defendant? 28 |
- Unascertainable Cause test
- Merged Cause test |
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[Negligence - Causation: Actual]
What are the test "title" and elements for when two or more people BOTH caused the harm? 28 |
Merged Cause Test:
Substantial factor test: would each breach be sufficient to cause injury by itself |
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[Negligence - Causation: Actual]
What are the test "title" and elements for when two or more people acted,but ONLY ONE COULD HAVE caused the harm? 28 |
Unascertainable Cause test:
(a) If Ds were reason for unascertainable cause, each D must show he/she was NOT the source (b) Otherwise jointly and severally liable |
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[Negligence - Causation: Proximate]
What is the test for proximate cause to apply on an essay? 29-30 |
Was the outcome foreseeable given the breach?
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[Negligence - Causation: Proximate]
When is an outcome necessarily NOT foreseeable given the breach? 29-30 |
When the result was freakish and bizarre
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[Negligence - Causation: Proximate]
What are the FOUR settled intervening cause cases where D IS considered liable, even if not totally foreseeable under normal proximate cause analysis? 29-30 |
(i) Intervening med. mal
(ii) Intervening negligent rescue (iii) Intervening protection or reaction forces (stampede) (iv) Subsequent disease |
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[Negligence - Damages]
Only rule need to know for damages? 31 |
D is liable for all damages, b/c D takes P as he found her (Eggshell Skull Doctrine)
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[Negligence - Defenses: Contributory]
What is the rule for contributory negligence? 31 |
If P is guilty of any fault, P recovers nothing
NOTE: ONLY remains rule in 5 states! |
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[Negligence - Defenses: Comparative]
What is the rule for comparative negligence? 32-33 |
P’s fault reduces amount of recovery based on percentage of fault
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[Negligence - Defenses: Comparative]
What is the special EXCEPTION to comparative negligence for rescuers? 32-33 |
Rescuers are entitled to take extraordinary risk, and therefore will not reduce recovery
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[Strict Liability]
What are the three primary categories of where strict liability is applied? 34-35 |
-Animals
-Abnormally dangerous activities -Defective products |
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[Strict Liability]
What are the elements needed to prove under a strict liability case? 34 |
-Absolute duty
-Breach -Actual Cause -Prox Cause -Damages |
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[Strict Liability - Animals]
What are the 2 types of animals in which strict liability attaches? 34 |
-Wild animals kept by D
-Trespassing cattle |
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[Strict Liability - Animals]
What is the GENERAL rule for domesticated animals? 34 |
-NO strict liability
-BUT STILL subject to ordinary duty of reasonable care under the circumstances |
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[Strict Liability - Animals]
What is the EXCEPTION to the general rule of no strict liability for domesticated animals? 34 |
IS strict liability if owner has knowledge of dog's vicious propensities (previous biting)
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[Strict Liability - Abnormally Dangerous]
What is the test for abnormally dangerous activities giving rise to strict liability? (2 elements) 34 |
(1) Activity must create risk of serious harm, even when reasonable care is being exercised
(2) Not a matter of common usage in the community NOTE: determination of "abnormally dangerous" is a question of LAW for the judge Example: blasting |
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[Strict Liability - Abnormally Dangerous]
What is a common TEST TRAP for Abnormally Dangerous questions? 34 |
Strict liability is imposed NO MATTER the level of safety precautions
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[Strict Liability - Defective Products]
When there is a defective product in an essay question, what OTHER issues are likely also present that should be addressed, if needed. -- |
(1) Intentional Tort of Battery
(2) UCC (3) Regular negligence |
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[Strict Liability - Defective Products: Main Elements]
What are the 5 main elements of a products liability for case under strict liability? 37-38 |
-D is a merchant
-Product has a defect (incl. lacking adequate warning) -Product has not been subsequently altered -P must be making foreseeable use of the -Product caused the harm |
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[Strict Liability - Defective Products: Main Elements]
What is required for the D to be a merchant? 37-38 |
Merchant = routinely deals w/ products of this type
--Includes commercial lessor = rental car company --Does NOT include casual sellers --Does NOT include service providers making products available incidental to business |
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[Strict Liability - Defective Products: Main Elements]
Which merchants can be held liable? 37-38 |
applies to EVERY merchant in supply chain
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[Strict Liability - Defective Products: Main Elements]
What are the THREE kinds of product defects? 37-38 |
-Manufacturing defect
-Design defect -Lack of warning |
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[Strict Liability - Defective Products: Main Elements]
What is the definition of a Manufacturing defect? 37-38 |
departure from intended design (irregular – 1 in a million)
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[Strict Liability - Defective Products: Main Elements]
What is the test for a Design defect? (3 elements) 37-38 |
Availability of an alternative design that is: (cost-benefit analysis)
(i) Safer (ii) Economical (iii) Practical |
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[Strict Liability - Defective Products: Main Elements]
What is the test for a lack of warning defect? (1 general rule) 37-38 |
Warning is inadequate given the circumstances
-May have to say alternatives, provide pictures, specify safety equipment NOTE: cannot just add a warning to avoid a redesign |
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[Strict Liability - Defective Products: Main Elements]
What is the presumption regarding P's alteration, and what is the EXCEPTION? 37-38 |
Presumption that product has not been altered if it has traveled in ordinary channels of commerce
EXCEPTION: Presumption does not apply if bought second-hand |
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[Strict Liability - Defective Products: Main Elements]
What is the 'test trick' re: P must be making foreseeable use of product 37-38 |
P's use does NOT need to be the primary use intended -- only needs to be foreseeable
Ex: Foreseeable to use chair as a step |
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[Strict Liability - Defenses]
What is the only available defense to ANY strict liability case? 41 |
Comparative fault
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[Nuisance]
What is the definition and test for a nuisance? 41 |
Substantial interference with use/enjoyment of property
TEST: Balancing the equities |
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[Over-arching rules - Vicarious Liability]
What is the primary relationship situation for which vicarious liability attaches, generally? 42-44 |
Employer-employee
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[Over-arching rules - Vicarious Liability]
When is an employer subject to vicarious liability (general test) 42-44 |
When employee is acting w/i scope of employment
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[Over-arching rules - Vicarious Liability]
EXCEPTIONS to the rule that an employer is generally NOT liable for the intentional torts of their employees (3 situations) 42-44 |
1. Employment involves use of force (security guard, bouncer)
2. Job generates animosity (repo man) 3. Employee’s misguided efforts to assist employer |
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[Over-arching rules - Vicarious Liability]
3 situations where vicarious liability generally does NOT apply 42-44 |
-Hiring Parties NOT vicariously liable for Independent contractors
-Owner of car NOT vicariously liable for driver of car -Parents NOT vicariously liable for torts of children |
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[Over-arching rules - Vicarious Liability]
What's the EXCEPTION to the general rule that Hiring Parties are NOT vicariously liable for Independent contractors 42-44 |
land possessor is liable if independent contractor hurts at invitee on land
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[Over-arching rules - Vicarious Liability]
What's the EXCEPTION to the general rule that Owner of car is NOT vicariously liable for driver of car 42-44 |
Errand for owner of the car
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[Over-arching rules - Vicarious Liability]
What's the TEST TRICK to the general rule that Parents are NOT vicariously liable for torts of children 42-44 |
Parent still liable for OWN negligence (in entrusting with things, etc.)
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[Over-arching rules - Joint Tortfeasors]
What may a Joint Tortfeasors do who has been forced to pay the full liability to a P b/c of joint and several liability? 45-46 |
Out-of-pocket D can seek percentages from other tortfeators based on what jury’s assigned fault was
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[Over-arching rules - Joint Tortfeasors]
When may a Joint Tortfeasors recover the FULL amount from another party duo to implied indemnity? (2 situations) 45-46 |
(1) Where out-of-pocket D was only liable b/c of VICARIOUS LIABILTIY, can get full indemnification from actual tortfeasor
(2) Where out-of-pocket D was a NON-MANUFACTURER held strictly liable for a product defect, can seem full indemnification from the manufacturer |
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[Over-arching rules - Loss of Consortium]
What THREE measures of damages may a SPOUSE of a Tortfeasor victim seek under a Loss of Consortium claims? |
(1) Loss of services (laundry)
(2) Loss of society (companionship) (3) Loss of sex |
