Torts

Front 1

In deciding if pl has satisfied an element of a tort, how is the pl’s hypersensitivity taken into account?

Back 1

It is ignored

Front 2

If a def lacks legal capacity, can they still be an intentional tortfeasor?

Back 2

Yes. There is no such thing as an “incapacity defense” in intentional torts (e.g., children are liable for their torts)

Front 3

What are the elements for battery?

Back 3

(1) harmful or offensive contact (2) upon the pl’s person

Front 4

What does it mean for contact to be offensive for the purposes of battery?

Back 4

Contact is offensive if it would not be permitted by a person of ordinary sensitivity (i.e., a tap on the shoulder is not enough)

Front 5

Is it a battery if a def grabs a purse out of a person's hand without otherwise touching the person?

Back 5

Yes. Contact with the "pl’s person" includes anything the pl is holding, touching, or connected with.

Front 6

If you slap the behind of a horse when a person is on it, is there a tort? Which tort?

Back 6

Yes, battery. Contact with the "pl’s person" includes anything the pl is holding, touching, or connected with.

Front 7

If you poison someone's lunch, is there a tort of battery, even though you didn't directly touch the plaintiff?

Back 7

Yes. It does not have to involve the def’s person. It just has to be something the def set into motion.

Front 8

What are the elements of assault?

Back 8

Def (1) places the pl in apprehension (2) of an immediate battery

Front 9

Fill in the blank: To the extent battery operates on the body, the tort of _____ operates on the mind.

Back 9

Assault

Front 10

Can a person be a plaintiff-victim of assault if he is so strong and tough, and the defendant is so weak, that the plaintiff never has any actual fear of being hurt?

Back 10

Yes, assault is still possible. Apprehension doesn't mean "fear"; it means "knowledge that a touching is coming"

Front 11

Can there be an assault if a def threatens a touching but cannot actually complete it—i.e., an unloaded gun?

Back 11

Yes, it's still assault. Analyze from the <u>pl’s perspective</u>, not that of an all-knowing observer. If the pl knew the gun was unloaded, then no assault. If pl couldn’t be sure, then there WAS an assault.

Front 12

Can words alone give rise to an assault?

Back 12

No. The apprehension must be immediate, and words alone lack immediacy. Must have actual (overt) conduct. I.e., bringing out a bat or shaking fist.

Front 13

For assault, if you have overt conduct, can words negate immediacy?

Back 13

Yes. E.g., Saying "if you weren't my best friend, I'd punch you in the nose" is demonstrating that you pose no immediate harm. Same with a future threat: no immediacy.

Front 14

If a person says, "I will kill you at 5pm today," is that an assault?

Back 14

No. There is no immediacy to the threat.

Front 15

What are the elements of false imprisonment?

Back 15

Def must intentionally engage in (1) an act of restraint, (2) the result of which is confinement of the pl to a bounded area

Front 16

Can a threat alone give rise to false imprisonment (e.g., "If you leave this room, I'll kill you" with no other physical restraints)?
Can an omission (e.g., if you agree to transport an elderly person, and then you abandon them, is that false imprisonment)?

Back 16

1) Yes, a threat can be an act of restraint if it would retrain a person of ordinary sensitivity.
2) Yes.

Front 17

For the tort of false imprisonment, must the def KNOW of the imprisonment?

Back 17

No. Def must know of the confinement OR <i>be harmed</i> by it.

Front 18

Can there be a tort of false imprisonment if you block a person on a road with a roadblock? What about a locked room with a tall ladder that would allow escape for a reasonable person?

Back 18

No false imprisonment in either case. An area is NOT bounded if there is a reasonable means of escape that the pl can reasonably discover.
--Note: If the means of escape is dangerous or disgusting to a reasonable person, it is NOT viable, and there IS a false imprisonment.

Front 19

If a person confines another to a space where the only escape is through a muddy rat-infested sewer pipe, is there a tort of false imprisonment?

Back 19

Yes. An area is "bounded" if there is no reasonable means of escape that the pl can reasonably discover. That includes a means of escape that is disgusting and unreasonable.

Front 20

What are the elements for the tort of intentional infliction of emotional stress?

Back 20

Def engages in (1) outrageous conduct, causing the pl (2) SEVERE emotional distress

Front 21

For the tort of intentional infliction of emotional stress, what does it mean for conduct to be "outrageous"?

Back 21

Conduct that "exceeds all bounds of decency tolerated in a civilized society"

Front 22

For the tort of intentional infliction of emotional stress, what level of intent is required?

Back 22

<b>Recklessness</b> is possible for this tort, unlike any other intentional tort.

Front 23

For the tort of intentional infliction of emotional stress, when can mere insults be enough to qualify as "outrageous" conduct?

Back 23

Must have a "plus factor." 3 common plus factors:
(1) Conduct is continuous or repetitive
(2) Pl is a member of a fragile class: children, elderly, or pregnant women.
(3) If def is a common carrier or innkeeper, the def will be held to a standard of “high courtesy” to customers (lower bar for outrageous conduct).

Front 24

If def is a common carrier or innkeeper, what standard will the def be held to for the tort of intentional infliction of emotional distress?

Back 24

a standard of “high courtesy” to customers (lower bar for outrageous conduct)

Front 25

For the tort of intentional infliction of emotional stress, what are the three classes of "fragile" plaintiffs, such that there is a lower bar for what conduct is "outrageous" directed to them?

Back 25

Children, elderly, and pregnant women

Front 26

Hypo:
Can a mere insult directed as a pregnant woman be a tort of intentional infliction of emotional stress?

Back 26

Yes. Children, elderly, and pregnant women are "fragile" classes of plaintiffs, and insults directed at them can be torts.

Front 27

Can a mere insult that is continuous or repetitive qualify as a tort of intentional infliction of emotional distress?

Back 27

Yes. Conduct being "continuous or repetitive" is a plus factor.

Front 28

Under what circumstances can there be a tort for intentional infliction of emotional distress when the person acted hypersensitively?

Back 28

When the def KNEW in advance of the hypersensitivity and still went ahead with the conduct.

Front 29

If a person is "mildly irritated" by the def's outrageous conduct, can that qualify as a tort of intentional infliction of emotional distress?

Back 29

No. Distress must be "severe"

Front 30

What are the elements of trespass?

Back 30

Def must (1) commit an act of physical invasion (2) on land

Front 31

What does it mean for a physical invasion of land to be "intentional" in the context of trespass? Must the def know he was crossing a boundary line?

Back 31

"Intentional" just means that the def got to the location voluntarily. Def need NOT have knowledge that he was crossing a boundary line.

Front 32

Under what circumstances can you commit a trespass despite not actually, yourself, crossing the boundary line?

Back 32

By throwing a tangible object onto the land--that is a trespass.

Front 33

Hypo:
Can there be a trespass for erecting powerful flood lights or speakers near your neighbor's house (but on your property) such that the light or sound enters the neighbor's property?

Back 33

No. Must throw a "tangible" object onto the property to qualify as a trespass.

Front 34

If you throw an object across someone's property, through the air, such that it lands on the public street, can that be a trespass?

Back 34

Yes, trespass includes the air above and the soil below, if within a reasonable distance such that it could be used by the property owner.

Front 35

What is the difference between a trespass to chattels and a conversion?

Back 35

a. They differ by the DEGREE of interference.
--If the interference is minor or slight, use trespass to chattels
--If the interference is significant, use conversion.
b. Conversion plaintiff also gets a special remedy: the FULL value of the item, rather than mere repair. Conversion is equivalent to a forced sale.

Front 36

What are the elements for a trespass to chattels and conversion?

Back 36

Intentional interference with a chattel (an item of personal property)

Front 37

Is consent a defense to all 7 intentional torts?

Back 37

Yes.

Front 38

For consent to be a defense to an intentional tort, must the consenting person have legal capacity to give consent?

Back 38

Yes, only a def with legal capacity can give a valid consent.

Front 39

Can the failure to disclose an STI by an infected person negate consent to a sexual encounter?

Back 39

Yes. No valid consent where that info is withheld

Front 40

In the context of intentional torts, what is meant by "consent through custom and usage"?

Back 40

You can assume that a def who enters a particularly environment consents to all the customs there.
--E.g., if you go to the doctor’s office, and he touches you, you are deemed to have impliedly consented.

Front 41

In the context of sports, is there implied consent to a battery even where that battery exceeded what is allowable under the rules of the game?

Back 41

Yes, there is probably consent. What matters is what is usual or routine, not what the rules of the game are.

Front 42

In determining whether a person consented to a battery, is the analysis of the situation subjective (victim's perspective) or objective (def's perspective)?

Back 42

Objective. What matters is the def’s reasonable interpretation of the pl’s objective conduct. The subjective thoughts of the pl’s head are <i>legally irrelevant</i>.

Front 43

Fill in the blank:
If a person exceeds the scope of _______ during the commission of a tort, he will be liable for the tort.

Back 43

consent

Front 44

In torts, what are the three "protective privileges"?

Back 44

Self-defense, defense of others, and defense of property

Front 45

In asserting a protective privilege in the context of torts, how accurate must you be about the threat? (I.e., can you be mistaken about the threat?)

Back 45

You must have a reasonable belief that the threat is genuine.
--I.e., a reasonable mistake will not defeat the defense.

Front 46

Hypo:
If a store mistakenly detains a shopper thinking he is a shoplifter, though he is not, is that false imprisonment?

Back 46

No. A reasonable mistake will not defeat the "defense of property" as a complete defense.
--When asserted in this context, this is sometimes called the "shopkeeper's privilege."

Front 47

In torts, what degree of force is allowable in response to a threat (i.e., self-defense)? When can you use deadly force?

Back 47

1) Proportional force, generally.
2) For deadly force to be used, deadly force must be threatened.
--Deadly force is NEVER allowed in defense of property.

Front 48

In torts, can you use deadly force to protect property? Can you use deadly traps?

Back 48

No and no. Deadly force is NEVER allowed in defense of property.

Front 49

What are the 3 property torts?

Back 49

Trespass to land, trespass to chattels, and conversion.

Front 50

To what torts does the defense of "necessity" apply?

Back 50

Property torts only (trespass to land, trespass to chattels, and conversion)

Front 51

In torts, what circumstances will give rise to a defense of <u>public necessity</u>?

Back 51

Occurs when a def interferes with a pl’s property in an emergency situation to protect the community as a whole or a significant group of people.

Front 52

In torts, what circumstances will give rise to a defense of <u>private necessity</u>?

Back 52

A circumstances where a def invades a pl’s property in an emergency to protect an interest of HIS OWN.

Front 53

In torts, what are the three limitations on the defense of private necessity?

Back 53

i) Private necessity defendant MUST pay for actual harm done
ii) Private necessity defendant is NOT liable for nominal or punitive damages.
iii) Private necessity defendant is privileged to remain on pl’s land in a position of safety as long as the emergency continues (def has right of sanctuary)

Front 54

Hypo:
If a def takes shelter in a pl's home during a storm without the pl's consent, what defense could the def try to assert to a claim of trespass?

Back 54

Private necessity.
--Private necessity defendant is privileged to remain on pl’s land in a position of safety as long as the emergency continues (def has right of sanctuary)

Front 55

In a civil suit for trespass, if a def has a valid defense of private necessity, can the pl at least get nominal damages? What about damages for actual harm done?

Back 55

No nominal damages, but the pl can recover for actual harm done.

Front 56

If someone enters your land during an emergency, and you scare the person off before the emergency has abated, and the trespasser is injured, can the trespasser recover?

Back 56

Yes. The trespasser can recover against the property owner, because the private necessity defendant is privileged to remain on pl’s land in a position of safety as long as the emergency continues (def has right of sanctuary).

Front 57

What are the elements for the tort of defamation?

Back 57

a. Def must make a statement that is “defamatory” and specifically identifies the plaintiff
b. Def must “publish” the statement
c. Damages (maybe)

Front 58

What makes a statement "defamatory" for the purposes of the tort of defamation?

Back 58

1) A statement is “defamatory” if it tends to injure the reputation of the plaintiff
--I.e., Allegation of fact by the def that reflects negatively on a trait of character (e.g., honesty, peacefulness, loyalty, morality, etc)
2) Mere insults are generally not enough.

Front 59

For purposes of the tort of defamation, can a person defame a person who is deceased?

Back 59

No. The defamed person must be alive.

Front 60

For the tort of defamation, what is meant by the requirement of "publication"? What level of intent is required for the publication element?

Back 60

1) Def must reveal or share the statement with at least one person (other than the pl)
2) Publication need not be intentional. Negligent publication is good enough. (E.g., you negligently forget that the intercom is on)

Front 61

What are the 2 kinds of defamation?

Back 61

1) Libel: Any defamation that is written or otherwise recorded
2) Slander: Spoken defamation

Front 62

What is libel?

Back 62

Any defamation that is written or otherwise recorded.

Front 63

Must you show damages to recover for libel?

Back 63

No, damages are not necessary for libel (but they are certainly recoverable)

Front 64

What are the 2 kinds of slander? Why are they legally significant?

Back 64

i) Slander per se: these are slanders that are particularly harmful to reputation, so they are treated the same as libel (no need to show damages).
ii) ...Everything else: For any other slander, you must show economic loss.

Front 65

What are the 4 types of slander per se?

Back 65

<i>Note: This is a closed list:</i>
a) Spoken statement concerning the pl’s business or profession.
b) Spoken statement concerning a crime of moral turpitude
c) Spoken statement that pl is suffering from a loathsome disease (only leprosy & venereal disease).
d) Spoken statement imputing unchastity to a woman.

Front 66

What are the defenses to defamation?

Back 66

a. Consent
b. Truth
c. Privilege (statements cannot be the subject of a defamation suit if they are said, e.g., between spouses or in a good-faith job reference)

Front 67

What is the "absolute privilege" to defamation?

Back 67

Arises based on the status or identity of the defendant (spouses & branches of govt):
i) Statements between spouses cannot be the subject of a defamation suit
ii) Papers filed in courts cannot be the subject of a defamation suit

Front 68

What is the "qualified privilege" to defamation?

Back 68

Arises by circumstances or occasion of the speech (i.e. socially useful speech where there is a public interest in encouraging candor).
<u>Requirements</u>
--Def must be speaking in good faith
--Def must confine himself to matters relevant to the purpose at hand

Front 69

In what kind of defamation case does the First Amendment play a significant role?

Back 69

First Amendment doctrine only applies to defamation if the def’s statement related to a matter of public concern

Front 70

What extra elements must a plaintiff show in a defamation case involving a matter of public concern?

Back 70

a. Falsity: Pl must show the statement is false, which can be difficult if it’s a negative (this shifts the accuracy issue to the pl)
b. Fault: Pl must show that the def did not have a reas basis or good faith belief in accuracy
--If def is a public official, it must be proof of intent or reckless behavior.
--If def is private figure, fault can be shown by simple negligence

Front 71

In a defamation case where the statement relates to a matter of public concern, and the def is a public official, what level of intent must the pl show?

Back 71

Intent or recklessness

Front 72

In a defamation case where the statement relates to a matter of public concern, and the def is a private individual, what level of intent must the pl show?

Back 72

Negligence

Front 73

What is the tort of appropriation, generally?

Back 73

Def uses the pl’s name or likeness for a commercial purpose (exclusion: newsworthy use, i.e., putting Tiger Woods on the cover of Sports Illustrated is okay)

Front 74

What is the tort of intrusion? Examples?

Back 74

i. An invasion by the def of the pl’s seclusion in a way that would be objectionable to the average person
ii. Examples: wiretapping, secret filming, peeping tom

Front 75

For the tort of intrusion, must the pl be in a place where he has a reasonable expectation of privacy?

Back 75

Yes

Front 76

For the tort of intrusion, is there a requirement of physical trespass?

Back 76

No

Front 77

Hypo:
A person enters a home and bugs the phone and listens to later conversations. What torts have probably been committed?

Back 77

Trespass, trespass to chattels (the phone), and intrusion.

Front 78

What is the tort of false light?

Back 78

Widespread dissemination by the defendant of a material falsehood about the plaintiff that would be objectionable to an average person

Front 79

How do the torts of false light and defamation differ with respect to the number of people you have to tell?

Back 79

False light requires "widespread dissemination," while defamation only requires publication to one person.

Front 80

How do the torts of false light and defamation differ with respect to whether the statement must be defamatory?

Back 80

For false light, the material falsehood can be defamatory OR nondefamatory (e.g., saying someone is a Jew who is actually a Christian is non-defamatory but can cause social harm)

Front 81

How do the torts of false light and defamation differ with respect to what you can recover?

Back 81

In defamation, you can recover for economic harm, while in false light, you can recover for social and emotional harm

Front 82

How do the torts of false light and defamation differ with respect to intent?

Back 82

Unlike defamation, false light is not an intentional tort: The def will be liable EVEN where the def has a good faith belief that the statement is accurate.

Front 83

What is the tort of disclosure (generally)?

Back 83

Widespread dissemination of confidential information about the pl that would be objectionable to an average person

Front 84

Hypo:
If a person emails a copy of your medical records to everyone at your work, what tort has been committed?

Back 84

Disclosure (the widespread dissemination of confidential information about the pl that would be objectionable to an average person)

Front 85

How does the tort of disclosure apply to journalists?

Back 85

Because of the first amendment, if it is a newsworthy matter, there can be no tort of disclosure.

Front 86

"Dual life" hypothetical:
If a gay man is out to everyone but his coworkers (including presence in parades), can he sue for disclosure of a private fact if someone tells everyone at his work that he is gay?

Back 86

No. The matter must be truly private.

Front 87

What defenses are possible to the tort of false light? To the tort of of disclosure?

Back 87

Same defenses:
a. Consent
b. Absolute & qualified privileges (same as for defamation)

Front 88

What are the four economic torts?

Back 88

1. Fraud
2. Intentional interference with a contract
3. Malicious prosecution
4. Abuse of process

Front 89

In four words, what are the four elements of the tort of negligence?

Back 89

Duty
Breach
Causation
Damages

Front 90

For the purposes of the tort of negligence, to whom do we owe a duty of care? What is biggest exception to this rule?

Back 90

1) To foreseeable victims, i.e., anyone in the zone of danger (no duty to unforeseeable victim)
2) Exception for rescuers: rescuers are not barred by the fact that they were outside the zone of danger, so you’re liable for harm to them

Front 91

What is the fundamental standard of care for the tort of negligence--i.e., how much care is owed?

Back 91

Standard of the reasonably prudent person under similar circumstances (objective)

Front 92

Can you be liable for negligence to rescuers injured in the course of responding to your negligent conduct, if they were outside the zone of danger when the actual conduct was committed?

Back 92

Yes, you are liable. The is the "rescuer" exception to the foreseeability requirement. Rescuers are not barred by the fact that they were outside the zone of danger, so you’re liable for harm to them

Front 93

What are the 2 exceptions to the otherwise completely objective standard of care in the tort of negligence?

Back 93

i) Superior knowledge: If the def possesses superior knowledge, the standard becomes a reasonably prudent person WITH that knowledge
ii) Physical characteristics: The reasonably prudent person always possesses the same physical traits as the def (i.e., blindness)

Front 94

For the tort of negligence, if the def possesses superior knowledge about the events, is the standard of care based on "a reasonably prudent person <i>with that knowledge</i>"?

Back 94

Yes!

Front 95

For the tort of negligence, if the def is blind, will the standard of care be based on "a reasonably prudent <i> blind</i> person"?

Back 95

Yes!

Front 96

Under the age of 4, is a person responsible for negligence?

Back 96

No, never. Children <4 are legally incapable of negligence (NO duty at all)

Front 97

For the tort of negligence, what standard of care for a child between 4 and 18? What is the exception?

Back 97

A child owes the care of a hypothetical child of similar <b>age, experience, and intelligence</b> acting under similar circumstances
--Exception: If the child is engaged in an “adult activity,” we use the “reasonably prudent person” standard (motor vehicles)

Front 98

Hypo:
If the child has no experience with a bike, is stupid, and is 6, and he rides over another child, what is the standard of care?

Back 98

A child owes the care of a hypothetical child of similar age, experience, and intelligence acting under similar circumstances
--I.e., he is compared to another stupid 6-year-old who never rode a bike before.

Front 99

For the tort of negligence, what level of care is owed by a professional service provider, like a doctor or accountant?

Back 99

Professional service provider owes the care of "the average member of that profession" who practices in a "similar community"
--<b><u>Custom</b></u> is the standard

Front 100

In a tort suit for medical malpractice, will a plaintiff generally need an expert witness to be a doctor from a similar community to the one in which the defendant doctor practiced?

Back 100

Yes

Front 101

What duty of care does a landowner owe an undiscovered, unexpected trespasser?

Back 101

None at all

Front 102

What duty of care does a landowner owe a trespasser who is known or anticipated (i.e., because they've trespassed so in the past)?

Back 102

Depends on the cause of the accident.

1) If the injury was caused by an activity conducted by the possessor, the possessor owes the ordinary standard (reasonably prudent person).

2) If the pl is injured by a dangerous condition on the land, the possessor is ONLY responsible for a condition that is (a) HIGHLY dangerous, (b) artificial (man-made), (c) concealed, and (d) was known to the possessor.
--I.e., there is only a duty for a known, man-made deathtrap.

Front 103

In tort law, what is a licensee? What standard of care is owed to a licensee?

Back 103

a) Licensees: those who enter the land with permission but not to confer any economic benefit on the possessor (e.g., social guest)

b) Standard of care depends on the cause of the accident:
--For injuries cause by activities conducted by the possessor: reasonably prudent person standard
--For injuries caused by dangerous conditions, the possessor is liable only if the condition was (a) concealed and (b) known by the possessor in advance (i.e., known traps)

Front 104

In tort law, what is an invitee? What standard of care is owed to an invitee?

Back 104

a) Invitees: those who enter land to confer an economic benefit on the possessor, or the land is open to the public at large (e.g., customers)

b) Standard of care depends on the cause of the accident:
--For injuries cause by activities conducted by the possessor: reasonably prudent person standard
--For injuries caused by dangerous conditions, the possessor is liable only if the condition was (a) concealed and (b) was known to the possessor or COULD have been discovered through reasonable inspection [i.e., all reasonably knowable traps]

Front 105

In the law of negligence, what is the difference between the standard of care owed licensees and invitees?

Back 105

They are the same except that for injuries caused by dangerous conditions, the possessor owes invitees a higher level of care than invitees, namely, the possessor must protect the invitee from all concealed conditions that are known AND any concealed conditions that could be known to the possessor after reasonable inspection.
--Note: a licensee confers no economic benefit on a possessor (e.g., guest) while an invitee does (e.g., a customer)

Front 106

In tort law, can a firefighter or police officer recover from a land possessor for injuries suffered there as an inherent risk of the job (say, in fighting a fire on the property)?

Back 106

No, never. This is the "firefighter exception"
--Note: this trumps the "rescuer" exception

Front 107

In tort law, what standard of care does a possessor of land owe a child trespasser?

Back 107

The "attractive nuisance" doctrine: A landowner may be held liable for injuries to children trespassing on the land if the injury is caused by a hazardous object or condition on the land that is likely to attract children who are unable to appreciate the risk posed by the object or condition

Front 108

In tort law, if a possessor of land owes a duty regarding a dangerous condition, what are the 2 ways the possessor can satisfy the duty?

Back 108

1) Fix the problem, or
2) <b>Issue a warning</b> (a warning will discharge the duty)

Front 109

Hypo:
In a supermarket, if the owner wants to protect himself against suits for negligence from people who might fall on the wet floor, what two options does he have?

Back 109

Easy:
1) Dry the floor, or
2) Put out a <b>warning</b> sign
--Remember that a warning will discharge the duty to guard against a dangerous condition

Front 110

In negligence law, when can the plaintiff use a criminal statute as the duty of care, i.e., to show negligence per se? (Ignore exceptions.)

Back 110

Plaintiff must demonstrate that
(1) he is in the <u>class of people</u> that the statute seeks to protect, and
(2) the injury is within the <u>class of risks</u> that the statute is designed to prevent.

Front 111

In a suit for negligence per se based on a statute, what are the 2 special circumstances under which violation of the statute will be rejected as the standard of care, despite the fact that the statute otherwise applies?

Back 111

a) A court will not apply the statute as the standard of care if compliance would be more dangerous than violation.
b) A court will not apply the statute if compliance was impossible under the circumstances.

Front 112

Under what circumstances is there a duty to rescue?

Back 112

Generally there is none, but here are the exceptions where you must make a reasonable rescue:
a) Parties have a pre-existing relationship (legal or otherwise)
b) Def put pl in peril

Front 113

In tort law, if you attempt a rescue voluntarily, can you be liable for screwing it up?

Back 113

Yes, a gratuitous rescuer must rescue reasonably. (Many states have exceptions, but we don't need to know them.)

Front 114

In tort law, when can a plaintiff recover for negligent infliction of emotional distress?

Back 114

For a near-miss case, must show:
a) Pl must have been in the zone of <i>physical</i> danger
b) Subsequent physical manifestations (e.g., heart attack)
--Also, for a bystander to recover for grief: must show
3) Proximity to the victim/injury in time, space, and relationship

Front 115

Strategy: On the bar exam, what 2 things must you do in showing breach in a negligence case?

Back 115

(1) Identify the specific wrongful behavior of the def and (2) <b>give an argument for its wrongfulness.</b>
(Bar candidates often overlook the second part because it seems so obvious. E.g., "...This is unreasonable because reasonable people watch the road.")

Front 116

To what element of negligence does res ipsa loquitor apply? What must be shown under the doctrine?

Back 116

The doctrine is an alternative way to show breach. To invoke, a pl must show that the injury
i) Is normally associated with negligence, and
ii) Is normally due to someone in the def’s position (i.e., you're suing the right person)

Front 117

In a tort suit for negligence, does the doctrine res ipsa loquitor create an inference of breach or a presumption of breach?

Back 117

It is an inference only. The jury can "reject the res ipsa loquitor inference."

Front 118

In a negligence action, what are the 2 kinds of causation that must be established?

Back 118

1) Factual causation (but for)
2) Proximate causation

Front 119

In a negligence suit, how does one establish factual causation?

Back 119

But-for test: But for the breach, the pl would have escaped harm
--Note: this is NOT the test for multiple defs.

Front 120

In a negligence suit, how does one establish factual causation when there are multiple defs, each of whom made a separate and distinct negligent act?

Back 120

2 possible scenarios, each with its own test:
a) Merged causes (e.g., 2 negligent forest fires merge): If each breach was capable of causing the injury by itself, then each is a substantial factor, and they are jointly liable.
b) Unascertainable cause: If the defs themselves are the reason that causation is unascertainable, then the burden shifts to them to show which is the actual causer.

Front 121

In one word, what are we looking for when determining whether there is proximate cause in a negligence suit?

Back 121

Foreseeability

Front 122

In negligence, there are some indirect injuries that are not caused directly by the defendant but the law deems them foreseeable anyway the so-called "easy cases"), such that the def will always be liable for them. What are they?

Back 122

The following consequential injuries are deemed foreseeable from an accident, such that defs are liable:
i) Intervening medical negligence: the def is liable even for intervening medical negligence (hospitals are dangerous places)
ii) Intervening negligent rescue
iii) Intervening protection/reaction forces (i.e., bystanders try to protect themselves and make things worse)
iv) Subsequent disease or accident

Front 123

What is the eggshell-skull doctrine in negligence?

Back 123

Once the pl shows every other element of the case, the pl is entitled to recover all damages suffered, even if surprisingly great in scope.
--I.e., you take your plaintiff as you find him.

Front 124

In a traditional common law jurisdiction, what is the effect of the plaintiff's own negligence on his recovery in a negligence suit?

Back 124

Total bar based on contributory negligence. (Traditional CL only!)
--> Rule: If the pl is guilty of any fault, the plaintiff will be absolutely barred from recovery.

Front 125

In a modern jurisdiction (i.e., not the traditional common law jurisdiction), what is the effect of the plaintiff's own negligence on his recovery in a negligence suit?

Back 125

Comparative negligence: the pl's neg will reduce, not bar, the amount of his recovery.

Front 126

What are the two kinds of comparative negligence jurisdictions? How are they different?

Back 126

1) Pure comparative negligence jurisdiction: pl always recovers whatever percentage is due
2) Modified/partial comparative negligence jurisdiction: a pl who is more than 50% to blame will recover nothing

Front 127

In a comparative negligence jurisdiction, is a rescuer's recovery reduced by his own negligence in performing the rescue unsafely?

Back 127

NO. This is an exception to comparative negligence for rescuers. Rescuers are entitled to take extraordinary risk to save someone.

Front 128

What tort liability does a person have for the torts (i.e., bites and attacks) caused by the person's domesticated animals?

Back 128

a. Generally there is no strict liability for your domesticated animal's injuries--just ordinary negligence.
b. Exception: If you keep a vicious animal and you know of its viciousness, you will be <u>strictly liable</u>.

Front 129

What is the special rule regarding liability of an owner for trespassing cattle (i.e., if they eat another farmer's crops)?

Back 129

An owner has strict liability for trespassing cattle

Front 130

What tort liability does a person have for injuries caused by the wild animals in his possession?

Back 130

If you keep a wild animal, you are strictly liable for its injuries.

Front 131

What tort liability does a person have for injuries caused by an abnormally dangerous activity, such as blasting?

Back 131

A person is <u>strictly liable</u> for any injuries caused by the abnormally dangerous activity (injury must relate to the reason we label the injury dangerous).

Front 132

For the purposes of establishing strict tort liability, what qualifies as an "abnormally dangerous activity"?

Back 132

Two things:
a. Activity is not a matter of common usage in the community.
b. Activity must be one that poses a risk of serious harm even where reasonable care is being exercised.

Front 133

For tort liability, if a person engages in an abnormally dangerous activity, what is the relevance of the safety measures taken by the defendant?

Back 133

Safety measures are not relevant. A person is <u>strictly liable</u> for any injuries caused by the abnormally dangerous activity (injury must relate to the reason we label the injury dangerous).

Front 134

What are the elements of a claim for products liability?

Back 134

a. Def was a merchant (a person who routinely deals with products of THIS type)
b. Product had a defect (manufacturing or design defect)
c. Product was not altered since leaving the def (presumed if it has traveled in ordinary channels of distribution)
d. Pl must be making a foreseeable use of the product

Front 135

Can a person be liable for products liability if they merely rent the product?

Back 135

Yes. Lessors can count as merchants.

Front 136

Is there a requirement of vertical privity in a claim for products liability?

Back 136

No

Front 137

In products liability, what are the two kinds of product defects?

Back 137

1) Manufacturing defect: the product departs from its intended design to make it dangerous
2) Design defect: there is an alternative design that would have been (1) safer, (2) economical, and (3) practical (allow the product to still function)

Front 138

For tort liability, can a product be defective design if it lacks warnings about residual risks that consumers would not be aware of? Will a warning absolve the company of liability?

Back 138

a) Yes, this is sometimes called an "information defect," but you can think of this as a subset of design defects.
b) Depends. If a physical change to the product is safer, economic, and practical, a mere warning will NOT absolve liability.

Front 139

For products liability, under what circumstances will it be presumed that a product has not been altered since leaving the defendant's hands?

Back 139

If it has traveled in ordinary channels of distribution, there is a presumption of no alteration

Front 140

For products liability, can a merchant be liable for an unintended use of his product?

Back 140

Yes. Pl must be making a foreseeable use of the product, and foreseeable doesn't necessarily mean only those intended uses.
E.g.: Standing on a chair is a foreseeable use.

Front 141

For strict liability torts, what is the effect of the plaintiff's own carelessness on the plaintiff's recovery?

Back 141

Comparative fault applies: Any pl carelessness will reduce the amount of recovery.

Front 142

When is a person liable for the tort of nuisance?

Back 142

When someone unreasonably interferes with your use and enjoyment of your real property
--Defenses are based on balancing the equities
--Real property only!

Front 143

Can a person commit a tort of nuisance against your use of your own personal property?

Back 143

No. Nuisance applies to the use and enjoyment of real property only.

Front 144

Under what circumstances will an employer be vicariously liable for the intentional torts of employees?

Back 144

Generally not, with the following exceptions:
i) The employment involves the use of force (e.g., bouncers)
ii) The job generates tension (e.g., the repo man)
iii) Torts committed out of a misguided effort to serve the employer’s interests

Front 145

Under what circumstances will an employer be vicariously liable for the negligence of his employees?

Back 145

When the acts were committed with the scope of employment

Front 146

Under what circumstances will a person be vicariously liable for the torts of his independent contractor?

Back 146

No vicarious liability unless the person is (1) a possessor land and (2) the independent contractor hurts an invitee.
--Recall: Invitees=those who enter land to confer an economic benefit on the possessor, or the land is open to the public at large (e.g., customers)

Front 147

Under what circumstances will the owner of a car be vicariously liable for the torts of another person he allows to drive it?

Back 147

The owner of a car is not vicariously liable for the torts of the driver UNLESS the driver is an agent of the owner (i.e., doing an errand)

Front 148

Under what circumstances will a parent be vicariously liable for the torts of his child?

Back 148

There is NO vicarious liability for the torts of one's child.
--However, watch out for direct liability, such as negligence in supervising the child.

Front 149

What is the majority rule regarding the ability of one joint tortfeasor to recover against the other joint tortfeasors?

Back 149

Majority rule: the jury will assign all the defendants a percentage of fault and the tortfeasor who ends up paying can get contribution from the others.

Front 150

Under what 2 circumstances can a joint tortfeasor get full indemnification from the other joint tortefasors?

Back 150

i. A paying defendant who was merely vicariously liable can recover against the ones who were directly liable
ii. A non-manufacturer (i.e., retailer) held strictly liable for products liability can get full indemnification from the manufacturer

Front 151

What is a loss of consortium remedy? What is recoverable?

Back 151

Whenever the victim of a tort is a married person, the spouse gets a separate cause of action for loss of consortium with three damage components:
i. Loss of household services
ii. Loss of society/companionship
iii. Loss of sex