Torts - Ca Bar Feb 2009

Front 1

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

Back 1

(1) Duty
(2) Standard of Care
(3) Breach
(4) Causation (actual and proximate)
(5) Injury

Front 2

What are the defenses to negligence?

Back 2

Contributory negligence -- negligence on the part of the plaintiff that contributes to her injury. At common law, contributory negligence completely barred a plaintiff from recovery.

Assumption of risk -- (i) plaintiff knew of risk and (ii) proceeded in face of risk. Barred from recovery. Could be implied or by express agreement (although common carriers and innkeepers can't contract out of liability)

Comparative negligence -- in a pure jurisdiction, reduce recovery by % of P's negligence. In a partial jurisdiction, P barred if her % is above threshold; otherwise reduce her recovery by %.

Front 3

Apply strict liability to ultra hazardous or abnormally dangerous activities if the activity:

Back 3

(i) involves significant risk of harm to persons or property;
(ii) is one that cannot be performed without risk of serious harm, regardless of the amount of care taken; and
(iii) is not commonly engaged in int he particular community

Front 4

What are the five theories of liability that a plaintiff may use against a supplier of a defective product?

Back 4

(i) intent;
(ii) negligence;
(iii) strict liability;
(iv) implied warranties of merchantability and fitness for a particular purpose;
(v) representation theories (express warranty and misrepresenation)

Front 5

To find liability under any products liability theory, a P must show:

Back 5

(i) a defect; and
(ii) existence of the defect when the product left D's control

Front 6

What are the three types of possible defects in a products liability action?

Back 6

(i) Manufacturing defect -- product that emerges from manufacturing different and more dangerous than the products made properly

(ii) Design defect -- all products of a line are the same but have dangerous propensities

(iii) Inadequate warnings -- manufacturer failed to give adequate warnings as to the non-apparent risks involved in using product.

Front 7

What are the elements necessary for a prima facie case of strict products liability?

Back 7

(i) a strict duty owed by a commercial supplier of a product;
(ii) breach of that duty;
(iii) actual and proximate cause; and
(iv) damage

Front 8

What are the two implied warranties in every sale of goods that can serve as the basis for a suit by a buyer against a seller?

Back 8

(i) warranty of merchantability -- are the goods of average acceptable quality and are they fit for the ordinary purpose for which the goods are used?

(ii) warranty of fitness -- seller knows the particular purpose for which the goods are required and buyer is relying on seller's skill and judgment in selecting the goods.

Front 9

Damages for the tort of conversion are measured by:

Back 9

the value of the converted property at the time it was converted, NOT the cost of a replacement.

Front 10

When can a violation of a statute which would normally establish a conclusive presumption of duty and breach of duty (e.g., running a red light) be excused?

Back 10

A violation of a statute may be excused where compliance would be beyond the defendant's control (e.g., if D lost consciousness without knowledge of such risk).

Front 11

Is the fact that an activity creating a nuisance existed prior to the time complaining landowner came within the scope of the nuisance a defense to a nuisance action?

Back 11

No, a residential property owner has the right to the reasonable use and enjoyment of his property, so long as he bought in good faith and not for the purpose of a harassing lawsuit.

Absent a prescriptive right, a property owner does not have the right to condemn surrounding property to his nuisance.

Front 12

What is the independent contractor rule for tort liability?

Back 12

A principal will not be liable for the tortious acts of an independent contractor, UNLESS contractor's tortious act was committed in the course of a nondelagable duty.

Front 13

How can an person lose his status as an invitee?

Back 13

By exceeding the scope of his invitation--going into a portion of the premises where his invitation cannot reasonably be said to extend to.

Front 14

Defamation elements.

Back 14

Defamation plaintiff must prove:

(1) Defamatory statement

(2) Of and concerning plaintiff

(3) Publication (1+ people)

(4) Damages (only for slander)

+ If "matter of public concern" ADD Fault and Falsity as follows:

IF PRIVATE FIGURE:
Fault - negligence sufficient.
Falsity - statement must be false.

IF PUBLIC FIGURE:
Fault - malice required.
Falsity - statement must be false.

Front 15

Defamatory statement.

Back 15

An allegation of fact pertaining to plaintiff that reflects negatively a on trait of character and tends to injure one's reputation.

Front 16

Publication requirement for defamation.

Back 16

Defendant must share defamatory statement with at least one person.

-- more people, more damages
-- negligent publication OK

Front 17

Libel vs. Slander.

Back 17

<> Libel = statement recorded.
-- Damages not req'd to get case to jury.

<> Slander = spoken statements.
-- Must prove economic harm, unless slander per se.

-- SLANDER PER SE: particularly devastating to one's reputation. Includes: (i) business or profession; (ii) moral turpitude; (iii) unchastity; (iv) loathsome disease.

Front 18

Defenses to Defamation. (Hint: CTP)

Back 18

(1) Consent
(2) Truth
(3) Privilege
- Absolute: spousal privilege; government privilege.
- Qualified: socially useful speech (ex: letters of recommendation). Must be (i) good faith; (ii) statement made for relevant purpose only.

Front 19

Privacy Torts. (AFID)

Defenses to privacy torts.

Back 19

(1) Appropriation
(2) False Light
(3) Intrusion
(4) Public Disclosure of private facts

Defenses:
- Consent
- Privilege

Front 20

Appropriation.

Back 20

(1) Unauthorized use by D of P's picture, name, or likeness for D's commercial advantage.

Front 21

Intrusion.

Back 21

(1) Act of prying or intruding on the affairs or seclusion of P by D;

(2) The intrusion would be objectionable by a reasonable person; and

(3) The thing to which there is an intrusion or prying is private.

Front 22

False light.

Back 22

(1) Publication of facts about P by D placing P in false light in the public eye;

(2) This "false light" is something that would be objectionable to a reasonable person under the circumstances; and

(3) Malice only if published matter is in public interest.

Front 23

Public disclosure of private facts.

Back 23

(1) Publication or public disclosure by D of private information about P; and

(2) Matter made public is such that a reasonable person would object to having it made public.

Front 24

Battery.

Back 24

(1) Act by D which brings about harmful or offensive contact to P's person

(2) Intent by D to bring about harmful/offensive contact to P's person; and

(3) Causation (may be direct or indirect)

Front 25

Assault.

Back 25

(1) Act by D creating reasonable apprehension in P of immediate harmful or offensive contact.

(2) Intent on part of D to bring about such apprehension.

(3) Causation.

Front 26

False Imprisonment.

Back 26

(1) Act or omission by D that confines or restrains P to bounded area.

(2) Intent on part of D to confine or restrain P.

(3) Causation.

Confinement can be through use of: (i) physical barriers, (ii) physical force, (iii) threat of force, (iv) indirect threat of force, (v) failure to provide means of escape, (vi) invalid use of legal authority

Front 27

Intentional infliction of emotional distress (IIED).

Back 27

(1) Act by D amounting to extreme and outrageous conduct ("exceeds bounds of decency")

(2) Intent by D to cause P to suffer severe emotional distress, or recklessness as to the effect.

(3) Causation; and

(4) Damages (severe emotional distress; physical not req'd)

Common carrier and innkeeper held to higher standard.

Continuous & repetitive more likely to be outrageous.

More likely if P is in "fragile class": (i) child; (ii) elderly; (iii) pregnant woman.

Front 28

Trespass to land.

Back 28

D's physical invasion on P's land.

<1> Intentional = D got their by voluntary act (wasn't thrown onto land).
--> D need not know he trespassed.
--> Invasion includes throwing an object onto land.

<2> P's Land = land + air above and soil below (to a reasonable distance).

Front 29

Trespass to chattels.

Back 29

(1) Act by D that interferes with P's right of possession of chattel;

(2) Intent to perform the act bringing about the interference with the chattel;

(3) Causation; and

(4) Damages.

Front 30

Conversion.

Back 30

(1) Act by D interfering with P's right of possession in chattel that is serious enough to warrant D to pay FMV of chattel;

(2) Intent to perform the act bringing about the interference with P's right of possession.

(3) Causation

Front 31

Defenses to Intentional Torts. (Hint: CSN)

Back 31

Affirmative Defenses (justifications):

(1) Consent: Express or Implied
>> Implied consent: (i) custom and usage; or (ii) based on D's reasonable interpretation of P's objective conduct.

(2) Self-Defense, Defense of Others, or Shopkeeper's Privilege
>> Only if response to conduct that is in-progress or imminent.
>> Must reasonably believe that threat is genuine.
---> reasonable mistake doesn't defeat this defense.
>> Force must be proportional to conduct.

(3) Necessity (public or private)
>> PUBLIC -- D interferes with private property in emergency to protect community or many people.
---->Absolute defense. NO liability.
>> PRIVATE -- D interferes with private property in emergency to protect himself.
-----> Limited defense. P still must pay for damage, but no punitive or nominal damages.
-----> D is privileged to remain on P's land until emergency ends.

(4) Other Defenses: (i) recapture of chattels and (ii) reentry of property.

Front 32

Misrepresentation (Fraud or Deceit).

Back 32

Plaintiff must prove the following:

(1) Misrepresentation of material fact
(2) Scienter -- D knew or believed it was false
(3) Intent -- to induce plaintiff to act in reliance
(4) Causation
(5) Justifiable reliance
(6) Damages -- plaintiff must have suffered pecuniary loss

Front 33

Malicious prosecution.

Back 33

Plaintiff must prove the following:

(1) Institution of criminal or civil proceedings against P;
(2) Termination favorable to plaintiff;
(3) Absence of probable cause for the prosecution;
(4) Improper purpose (harass)
(5) Damages

Front 34

Abuse of process.

Back 34

(1) D's wrongful use of judicial process for an ulterior purpose; and

(2) D's definite act or threat against P to accomplish the ulterior purpose

Front 35

Tortious interference with contract or business relations.

Back 35

Prima facie case:

(1) valid contract between P and 3rd party or valid business expectancy of P.

(2) D's knowledge of the contract or expectancy.

(3) Intentional interference by D, inducing breach or termination of contract or expectancy.

(4) Damages.

Front 36

Four elements of negligence. (Hint: DBCD).

Back 36

Duty
Breach
Causation (actual and proximate)
Damage

Front 37

The basic idea behind duty of care.

Back 37

Duty owed to foreseeable victims.

Front 38

Cardozo.

Back 38

No duty owed to a victim outside the "zone of danger."

Front 39

Is a rescuer who is initially outside the "zone of danger" enters the zone to rescue someone owed a duty?

Back 39

Yes, rescuers are not barred from recovery by the fact that they were out of the "zone of danger."

Front 40

What is the default standard of care?

Back 40

Reasonably Prudent Person
--> objective standard
--> what would a reasonably prudent person do under a similar set of circumstances?
--> everyone (unless special standard applies) is held to this standard, regardless of their subjective experience
>>>EXCEPT:
--------> A defendant with Superior knowledge, will be held to a reasonably prudent person standard with that knowledge.
--------> A defendant's personal characteristics are taken into account (ex: what would a reasonably prudent short person do?).

Front 41

Duty of care owed by CHILDREN.

Back 41

Child 4+ owes the care of a hypothetical child of similar age, experience, and intelligence acting under similar circumstances.
>> subjective standard, customized to attributes of child.
>> EXCEPTION: if child is engaged in an "adult activity," child is held to reasonably prudent person standard.
>> Child under 4 owes NO duty.

Front 42

Duty of care owed by PROFESSIONALS.

Back 42

Owes his patient or client the care of an average member of that profession who practices in a similar community.

Front 43

Duty of care owed by land possessors to TRESPASSERS.

Back 43

Undiscovered trespassers
>> No duty owed.

Discovered trespassers
>> includes anticipated trespassers
>> possessor owes standard of reasonably prudent care
>> possessor has duty to protect a discovered trespasser when they know of a condition on their land that is: (i) artificial, (ii) highly dangerous, and (iii) concealed. Also known as "known man-made deathtraps."

Child trespassers.
>> standard of reasonably prudent person is applied when child injured by artificial conditions on land.
>> the greater the likelihood of child trespasser, the safer property must be.
>> "attractive nuisance" doctrine old law; now look to foreseeability of injury.

Front 44

Duty of care owed by land possessors to LICENSEES.

Back 44

A licensee is person comes onto land with possessor's permission but not to confer any economic benefit (ex: social guest).
>> reasonably prudent person under circumstances.
>> duty to protect licensee against known conditions on land, that are concealed to licensee.

Front 45

Duty of care owed by land possessors to INVITEES.

Back 45

An invitee is a person who comes onto land to confer an economic benefit on possessor, or if land is open to public.
>> reasonably prudent person under circumstances.
>> duty to protect against a known or reasonably discovered condition that is concealed to invitee.
>> duty to inspect.

Front 46

Firefighters and police officers.

Back 46

Cannot recover from injury that results from an inherent risk of their job, because they assume the risk.

Front 47

Warnings to entrants.

Back 47

If possessor owes duty to protect entrant from dangerous condition, a warning will satisfy the duty.

Front 48

Negligence per se (statutory negligence).

Back 48

legal doctrine whereby an act is considered negligent because it violates a statute (or regulation).
>> plaintiff must show that:
(1) defendant violated the statute;
(2) act caused the kind of harm statute was designed to prevent; and
(3) plaintiff was within the class of persons statute was designed to protect ("zone of danger").

>>> NOT applicable when (i) complying with statute is more dangerous than violating it or (ii) compliance was impossible.

Front 49

Duty to rescue.

Back 49

NO duty to rescue strangers, unless...

>> EXCEPTIONS:

(1) Preexisting Relationship:
(a) common carrier-passenger;
(b) parent-child;
(c) innkeeper-guest;
(d) landowner-invitee.
(e) ad hoc relationships (ex:
guys going out drinking).

(2) Defendant caused the peril.

(3) Defendant initiates voluntary. rescue.

Front 50

Negligent infliction of emotional distress.

Back 50

Defendant creates foreseeable risk of physical injury (but no actual injury) to plaintiff, either by (i) threat of physical impact that causes severe emotional distress; or (ii) directly causing severe emotional distress that by itself is likely to result in physical symptoms.

>> To recover plaintiff must show:
(1) that he suffered physical injury as a result of defendant's conduct; and
(2) he was in the "zone of danger."

>> Modern trend allows recovery for plaintiffs outside "zone of danger" if plaintiff (i) is closely related to injured person; (ii) was present at the scene of injury; and (iii) personally observed or perceived event.

Front 51

Breach of duty analysis.

Back 51

(1) identify defendant's conduct.
(2) describe why was it a breach of duty.

Front 52

Res Ipsa Loquitor.

Back 52

"The thing speaks for itself"

If plaintiff injured by defendant but can't identify wrongful conduct, can prove breach by demonstrating that:
(1) accident is one that is
normally associated with
negligence; and

(2) accident of this type is
normally due to the
negligence of someone in
defendant's position.

Front 53

Causation.

Back 53

Two parts: (1) actual causation; and (2) proximate causation.

Front 54

Actual causation (factual).

Back 54

Single Defendant Test:
>> "But for" defendant's breach, plaintiff would not have been injured.
>> Defendant may argue that "even if" he did not breach, plaintiff would have still been injured.

Multiple Defendant Test:
>> if breach is a substantial factor to plaintiff's injury, defendant liable.
>> Unascertainable cause: if multiple breachers but only one caused injury, and don't know who, burden shifts to Defendants to prove their breach did not cause injury. Otherwise all jointly and severally liable.

Front 55

Proximate causation (legal).

Back 55

The foreseeability that defendant's breach would result in type of injury that plaintiff suffered.

>> DIRECT CAUSE: when D commits breach and plaintiff gets hurt (no intervening causes), D is liable.
---------> almost always foreseeable.

>> INDIRECT CAUSE: Defendant commits breach. Stuff happens in between. Plaintiff gets injured.

----> PC generally exists unless intervening force is superseding and breaks causal chain.

These DON'T break causal chain:
(1) intervening medical malpractice
(2) intervening negligent rescue
(3) intervening protection or
reaction forces
(4) subsequent disease or
accident

Front 56

Eggshell skull doctrine.

Back 56

Majority rule: defendant takes victim the way he finds them, and is liable to all injuries, including those that a typical person would not have suffered.
>> Applicable across all torts, but seems irreconcilable with NIED and nuisance.

Front 57

DEFENSES to Negligence.

Back 57

Common Law Defenses:

>> Contributory Negligence (5 holdout jurisdictions): plaintiff completely barred from recovery when his negligence contributed.
---->"Last Clear Chance" exception: person with last clear chance to avoid accident is liable.

>> Assumption of risk (12 holdouts): plaintiff may be denied recovery if she knew of risk on voluntarily proceeded (can be implied or express).

MODERN Negligence Defenses:

(1) Pure Comparative Negligence -- plaintiff's damage award reduced by percentage of his fault.

(2) Partial Comparative Negligence: plaintiff's damage award reduced by percentage if within statutory threshold; if above threshold, NO RECOVERY.

Front 58

Injuries caused by animals.

Back 58

>> Domesticated animals: no strict liability unless owner knows of vicious propensities.

>> Trespassing cattle: strict liability for cattle that destroys a landowner's property.

>> Wild animals: strict liability for injuries they cause.

Front 59

Abnormally dangerous activities.

Back 59

STRICT LIABILITY APPLIES

>> "Abnormally dangerous" if:
(1) activity poses risk of serious harm even when reasonable care is exercised; and
(2) activity is not a matter of common usage in the community.

TIP: don't get distracted by lots of safety precautions; if abnormally dangerous, then STRICT LIABILITY.

Front 60

What are the theories available to a plaintiff suing for products liability?

Back 60

(1) Intent (very rare);
(2) Negligence;
(3) Strict liability;
(4) Implied warranties of merchantability and fitness for a particular purpose; and
(5) Representation theories (express warranty and misrepresentation).

Front 61

Strict products liability.

Back 61

(1) Strict duty owed by commercial supplier;

(2) Breach of that duty;

(3) Actual and proximate cause; and

(4) Damages.

Product MUST not be substantially altered.

Any Mfg. in chain of distribution is liable.

Breach of duty only requires that product's defect caused it to be "unreasonably dangerous."

P must trace injury to defect to show actual cause.

Negligent failure of an intermediary to discover defect does not void strict liability on supplier.

Front 62

Manufacturing defect vs. design defect.

Back 62

Manufacturing Defect:
>> when product emerges from manufacturing process different and more dangerous than it should be.

Design Defect
>> All products of a line have dangerous propensities.
>> Inadequate warnings can be a design defect.
>> Plaintiff must show that a less dangerous alternative was economically feasible.

Front 63

Products liability based on negligence.

Back 63

(1) Duty of care to any foreseeable plaintiff;

(2) Breach of that duty;

(3) Actual and proximate causation;

(4) Damages.

Negligence in manufacturing defect case can be demonstrated using res ipsa loquitur.

Negligence in design defect can be established by P showing that those designing product knew or should have known of enough facts to put reasonable manufacturer on notice about the dangers.

Front 64

Private nuisance.

Back 64

Substantial, unreasonable interference with a person's use or enjoyment of their property.
>> substantial = offensive, inconvenient, or annoying to the average person in the community (not when plaintiff is hypersensitive).

>> unreasonable = severity of injury must outweigh the utility of defendant's conduct.

>> Defense of "coming to the nuisance" not a bar unless plaintiff came to the nuisance for the sole purpose of harassing defendant.
>> Defense of not violating zoning ordinance not an absolute defense, but persuasive.

Front 65

Public nuisance.

Back 65

An act that unreasonably interferes with the health, safety, or property rights of the community (ex: using a building for drug dealing).

Front 66

Respondeat superior.

Back 66

Employer will be vicariously liable for tortious acts of his employee if they were committed within the scope of the employment relationship.
>> Frolic and detour: outside scope when substantial deviation

>> Principal not liable to independent contractor unless: (i) inherently dangerous activity; or (ii) nondelagable duty (policy consideration)
>> Intentional torts NOT within the scope unless: (i) nature of job; or (ii) employee furthering employer's business.

Front 67

Privilege of Arrest.

Back 67

A misdemeanor arrest without a warrant is privileged only if the misdemeanor was a breach of the peace and was committed in the presence of the arresting party.

Front 68

Survival of tort actions.

Back 68

At common law, a tort action abated death. Now, a victim's cause of action will survive to permit recovery of all damages from the time of injury to the time of death.

Front 69

Wrongful death.

Back 69

Personal representative (in some jurisdictions), and spouse, next of kin (in others).

Measure of recovery is for the pecuniary injury resulting to the spouse and next of kin. Not for pain and suffering, but for loss of support, consortium.