Torts - California Bar Exam February 2007

Front 1

What are the major types of tort immunities?

Back 1

1) Husband-wife Immunity
2) Sovereign Immunity
3) Parent-child Immunity

Front 2

What is the rule statement for husband-wife immunity?

Back 2

At common law, husbands and wives were immune from tort suits against one another. Most states have abolished this immunity and allow inter-spouse lawsuits sounding in tort.

Front 3

What is the rule statement for parent-child immunity?

Back 3

At common law, children were barred from suing their parents. A slight majority of states have retained this doctrine, though those that abolished it retained it for negligent supervision. Those who retained it do waive it for intentional torts and car accidents to the extent of insurance coverage

Front 4

What is the rule statement for sovereign immunity?

Back 4

The federal government has waived sovereign immunity, except for assault, battery, FI, false arrest, malicious prosecution, abuse of process, libel, slander, misrep, interference with contract rights. Not waived for discretionary, though those deemed ministrial are waived.

Most states have waived to the same extent as the federal government and half of all municipalities.

Immunity does not apply for proprietary functions.

Front 5

What is the rule statement for public officials vis-a-vis sovereign immunity?

Back 5

Public officials are immune from suit for discretionary acts free of malice, but not ministerial acts.

Front 6

What is the rule statement for a tort action undertaken by a dead person?

Back 6

At common law, a tort died with the tortfeasor or the victim. However, most states have passed "survival acts" which allow a victim's estate to collect damages incurred between injury and death.

Front 7

What torts are not allowed for dead persons?

Back 7

Any tort which involves an intangible personal interest such as defamation, malicious prosection, privacy, etc.

Front 8

What is the rule statement for wrongful death?

Back 8

Spouses and next of kin may initiate their own lawsuits for pecuniary injury. Loss of consortium damages may be included but not pain and suffering.

Front 9

What defenses are available in wrongful death actions?

Back 9

Contributory and comparative negligence are available to the same degree as if the decedent were still alive.

Front 10

What is the rule statement for tortuous interference with family relationships?

Back 10

A parent whose child is killed and a married person whose spouse is killed may initiate a derivative lawsuit for loss of consortium.

Front 11

What defenses are available in a lawsuit for tortuous interference with family relationships?

Back 11

Any defenses that were allowed in the primary suit may be maintained in the derivative suit; further, any defense against the bereaved may also be used.

Front 12

What is the rule statement for contribution?

Back 12

In a joint and several liability situation, a tortfeasor may initiate suit against a joint tortfeasor for his apportioned share of damages.

Front 13

What is the rule statement for contribution vis-a-vis intentional torts?

Back 13

Contribution is not available to one who has committed an intentional tort.

Front 14

What is the rule statement for indemnity?

Back 14

Indemnity involves shifting the entire loss from one party to another.

Front 15

When can indemnity occur?

Back 15

Indemnity is possible with insurance contracts, vicarious liability, products liability, and in some jx, identifiable difference in the degree of fault. Some states have replaced indemnity with standard comparative negligence rules.

Front 16

What is the rule statement for satisfaction?

Back 16

Recovery of full payment is a satisfaction. Only one is allowed. Until there is a satisfaction, may proceed against all liable parties.

Front 17

What is the rule statement for release?

Back 17

At common law, a release of one liable party released all liable parties. Modern law requires that the release of any party be express.

Front 18

What is the rule statement for joint and several liability?

Back 18

If two or more tortious acts combine to cause an indivisible injury to plaintiff, each tortfeasor is jointly and severally liable for the entire injury.

Front 19

When will a defendant only be liable for his identifiable portion of the damages?

Back 19

1) If the actions are independent, 2) Plaintiff's injury is divisible, and 3) and it is possible to identify which portions are attributable to each defendant

Front 20

What are the two minority exceptions to joint and several liability?

Back 20

1) Some states will not allow joint and several liability for plaintiffs that are more negligent that individual defendants, and 2) Some states apportion noneconomic damages only proportionate to fault.

Front 21

What is the rule statement for respondeat superior?

Back 21

An employer shall be held liable for the negligence of his employee if the employees tortuous acts were in the scope of his employment.

Front 22

What is the rule statement for detour?

Back 22

An employee who has acted for his own benefit but without a substantial deviation of time or geography has committed a detour and his employer is still liable.

Front 23

What is the rule statement for frolic?

Back 23

An employee who has acted for his own benefit with a substantial deviation of time or geography has committed a frolic and his employer is not liable.

Front 24

What is the rule statement for intentional torts vis-a-vis respondeat superior?

Back 24

Employers are not liable for the intentional torts of their employees unless:
a) Violence is authorized in employment (e.g. bouncing)
b) Friction is generated by employment (bill collector)
c) Defendant is furthering the business of the employer.

Front 25

What is the rule statement for independent contractors vis-a-vis respondeat superior?

Back 25

A principal is not liable for his agent if his agent is an independent contractor. There are two exceptions to this rule. The principal is liable if a) the contractor is engaged in inherently dangerous activity (broader than SL ultra) or b) for public policy concerns, the duty is simply non-delegable, i.e. a duty of a landowner to keep his premises safe.

Front 26

What are the rules for automobile use vis-a-vis respondeat superior?

Back 26

Gerenally an automobile owner is not liable for the acts of the driver. Some states use the family car doctrine, that is, the owner is liable for the acts of family / household members who use the car. Some states use the permissive use doctrine, that is, the owner is liable for tortious acts of anyone using the car with his permission.

Front 27

What are the rules for bailors and bailees vis-a-vis respondeat superior?

Back 27

Generally, a bailor is not responsible for the acts of a bailee.

Front 28

What are the rules for parents and children vis-a-vis respondeat superior?

Back 28

At common law, parents were not liable for the torts of their children. Most states now allow a parent to be sued up to a fixed amount for intentional torts.

Front 29

What are the rules for tavernkeepers and patrons vis-a-vis respondeat superior?

Back 29

Tavernkeepers are not liable for the torts of their drunk patrons at common law. Dram Shop Acts, passed in many states, impose vicarious liability on tavernkeepers who serve intoxicated customers. Bonus: taverns can be sued based on their own negligence in serving (not vicarious).

Front 30

What is the rule statement for private nuisance?

Back 30

Private nuisance is the substantial, unreasonable interference with another private individual’s use or enjoyment of property that he actually possesses or which he has a right of immediate possession. Nuisance is not a separate tort in itself and must be based on a tort theory.

Front 31

Define "substantial interference" in the nuisance context.

Back 31

Interference that is offensive,inconvenient, or annoying to the average person in the community. It is not substantial if it is merely the result of the plaintiff’s hypersensitivity or specialized use of his own property.

Front 32

What type of interference is required for nuisances based on intent or negligence?

Back 32

Unreasonable interference, which required for nuisances based on intent or negligence. The severity of the inflicted injury must outweigh the utility of defendant’s conduct. Courts will balance the respective interests, considering neighborhood, land values, any alternative courses of conduct open to defendant

Front 33

What is the rule statement for public nuisance?

Back 33

Public nuisance is the unreasonable interference with health, safety, or property rights of the community.

Front 34

Who may bring a public nuisance suit?

Back 34

a) A private person who is affected by the nuisance in a unique way, or b) a public official (like a state AG).

Front 35

What is the effect of zoning on a nuisance suit?

Back 35

Zoning is persuasive, but not not final, on the issue of whether a certain activity is a nuisance.

Front 36

What defenses are available in a nuisance action?

Back 36

Negligence defenses are avaliable in nuisance suits based on negligence. Coming to the nuisance is allowed only if plaintiff came to property just to initiate nuisance suit.

Front 37

What are the five different products liability lawsuits?

Back 37

a) Intent-based liability, b) Negligence c) Strict tort liability, d) Implied warranties e) Misrepresentation

Front 38

What is a manufacturing defect?

Back 38

A product is different and more dangerous than than a product made properly.

Front 39

What is an inadequate warning?

Back 39

When a product has a non-apparent risk which is not noted on the product.

Front 40

What is a design defect?

Back 40

When products are all the same but with dangerous propensities.

Front 41

What are the two components of intentional torts?

Back 41

Act: A volitional movement by defendant. Can be basically anything either reflexive or voluntary; e.g. dictated by the mind at the most basic level. An epileptic seizure is not volitional, but sticking out your hand to avoid falling is volitional.

Intent: may be either specific or general intent.

Specific intent means that the defendant’s goal was to bring about the specific consequences that occur.

General intent means that the defendant knew with substantial certainty that these consequences would result.

Front 42

What is transferred intent?

Back 42

Note on transferred intent: When defendant intends to commit a tort against one person but instead:

1) commits a different tort against that person;
2) commits the same tort against a different person; or
3) commits a different tort against a different person.

Once complete in defendant’s mind, this intent may be inserted into any of these five torts: a) Assault, b) Battery, c) False Imprisonment, d) Trespass to Land, e) Trespass to Chattels. Note, the original tort and secondary tort must both come from this list.

Front 43

What is the story with capacity vis-a-vis intentional torts?

Back 43

Note on capacity: everyone is capable of intent in the intentional tort context, even those with mental illness and children, unless illness is so severe that it prevents a person from actually being unable to form the intent to touch, imprison, threaten, etc

Front 44

What is the story with causation vis-a-vis intentional torts?

Back 44

Causation: The result of the act must have been set in motion by defendant. Causation is satisfied if the defendant’s conduct was a substantial factor in bringing about the injury.

Front 45

List and explain the components of a battery:

Back 45

1) Harmful or offensive contact

Harmfulness and offensiveness judged by a reasonableness standard. Conduct is only offensive if it has not been consented to. However, implied consent exists for the ordinary contacts of everyday life, such as minor bumping on a crowded bus.

Also, contact need not be direct – setting a trap for plaintiff to fall into qualifies as offensive contact.

2) To Plaintiff’s person

This includes anything connected to the plaintiff, such as a purse or clothing.

3) Intent (see above)

4) Causation (see above)

Front 46

List and explain the components of an assault:

Back 46

III) Assault

1) An act by defendant creating a reasonable apprehension in plaintiff

Apprehension is a term of art and does not necessarily mean fear. A weakling can cause apprehension in a bully. (“I apprehend that Sacramento is the capital of California.”)

If the defendant has the apparent ability to commit a battery, this will be enough to cause a reasonable apprehension, however, words alone are not enough to create reasonable apprehension.

2) Of immediate harmful or offensive contact to plaintiff’s person

Must be immediate – cannot fear an attack three hours later.

3) Intent (see above)
4) Causation (see above)

Front 47

List and explain the components of false imprisonment:

Back 47

IV) False Imprisonment

1) An act (see above) or omission on the part of the defendant that confines or restrains plaintiff

These acts include physical barriers, physical force, threats of force, failure to release, invalid use of legal authority.

These acts do not include moral pressure and future threats.

The length of the confinement is irrelevant, however, plaintiff must know of the confinement or at least be harmed by it.

2) To a bounded area

Freedom of movement must be limited in all directions. There must be no reasonable means of escape known to plaintiff.

Intent (see above)

Causation (see above)

Front 48

List and explain the components of Intentional Infliction of emotional distress:

Back 48

V) Intentional infliction of emotional distress

1) An act by defendant amounting to extreme and outrageous conduct

Conduct that is extreme and outrageous must transcend all bounds of decency. Conduct that isn’t normally extreme and outrageous can be if it is continuous, or directed toward the elderly, children, pregnant women, and supersensitive adults if the sensitivities are known, or committed by special defendants (common carriers and innkeepers can be liable even for “gross insults.”)

2) Intent (see above) or reckless disregard for effect of conduct

3) Causation (see above)

Note on bystander cases: Causation can be proven with either the standard elements of IIED or:
a) Plaintiff was present when 3rd party was injured;
b) Plaintiff is close relative of 3rd party; and
c) Defendant was aware of a&b

4) Damages – severe emotional distress.

Actual damages are required. Proof of severe emotional distress must be presented. The more outrageous the conduct, the less proof is needed.

Front 49

List and explain trespass to land:

Back 49

1) Physical Invasion of Plaintiff’s Real Property

Includes airspace and underground.

2) Intent (see above)

Plaintiff need only intend to enter the piece of land, not intend to trespass.

3) Causation (see above)

*) This action can be maintained by anyone in actual or constructive possession of the land, even without title. If no one is in possession, the true owner can maintain.

Front 50

List and explain the components of trespass to chattels:

Back 50

VII) Tresspass to chattels

1) An act that interferes with plaintiff’s right of possession in a chattel.

2) Intent (see above) The intent must be to interfere, not necessarily to tresspass

3) Causation

4) Damages

Actual damages are required. Proof of actual damage to either the chattel or to a possessory right are required.

Front 51

List and explain the components of conversion:

Back 51

1) An act by a defendant that interferes with plaintiff’s right of possession

Can include wrongful acquisition, wrongful transfer, wrongful detention, changing, misusing, and severely damaging a chattel.

2) The interference is so serious that it warrants defendant’s paying the chattel’s full value

The longer the withholding period and the more extensive the use, the more likely it is to be conversion.

Includes tangible property and intangibles that have been reduced to physical form (a promissory note, for example)

Anyone with an immediate right to possession or possession may be a plaintiff

Remedies include damages or replevin

3) Intent

4) Causation

Front 52

List the elements of consent, and discuss implied and express consent:

Back 52

I) Consent. Plaintiff’s consent is a defense, though one CANNOT consent to a criminal act.

1) Was there a valid consent? (No Fraud, etc)

2) Did the defendant stay within bounds of the consent?

Express Consent will be invalidated if plaintiff made a mistake which def is aware of, fraud will invalidate if regarding an essential (not collateral) matter, duress will invalidate unless duress is threats of future action or future economic deprivation.

Implied consent: Can be apparent or implied by law. Apparent consent is that which a reasonable person would infer from custom and usage or plaintiff’s conduct, e.g. sports. Consent implied by law is when action is necessary to save a person’s life or some important interest in person or property.

Capacity for consent is necessary (very young, drunks, mentally ill etc).

Exceeding the scope – must be substantially different

Front 53

What three questions must be asked when faced with a question of self-defense, defense of others, and defense of property?

Back 53

Ask:1) Is the privilege available? The tort must be about to be committed or is being committed at that moment. Completed torts do not qualify.

2) Is mistake permissible as to whether the tort being defended against is actually being committed?

3) Was a proper amount of force used?

Front 54

What is the rule for self-defense and the subrules?

Back 54

1) When a person reasonably believes he is about to be attacked, he may used such force as necessary to protect against injury.

a) No duty to escape.

b) Modern Trend: duty to escape if can be done safely, except in the home

c) Not available to original aggressor

d) Extends to third parties, though deliberate injury (i.e. human shield cases) will extinguish defense.

e) Mistake as to existence of danger is allowed.

Front 55

What are the rules for defense of others?

Back 55

1) One may use force to defend another if one reasonably believes that the other person could have used force to defend himself

2) Mistake is allowed

3) Defender may use same force as if he were under attack.

Front 56

What are the rules for defense of property?

Back 56

1) Reasonable force may be used to prevent a tort against real or personal property

2) Request to desist must be made unless futile or dangerous
3) Defense not available after tort has been committed.

Exception: Tortious dispossession of personal property – force may be used while in hot pursuit.

4) Defense not available against one with a privilege – that is, privilege to enter land, recapture of chattels supersedes defense

5) Mistake is allowed as to whether a warning is required or an intrusion has occurred, but not allowed as to privilege.

a) Exception – if entrant leads defendant to reasonably believe that entry is not privileged (by not saying what the privilege is) then mistake will be allowed here as well

6) Reasonable force is allowed, not deadly force (unless the invasion entails some threat of serious bodily harm also)

Front 57

What is the rule for recapture of land?

Back 57

While available at common law, one could use force to take back land. Modern law does not allow this.

Front 58

What is the rule for recapture of chattels?

Back 58

VIII Recapture of chattels. This is a defense to get chattels back. Mistake is not allowed regarding right to recapture or enter. Deadly force is never allowed. Also, dispossession that began peacefully (like a conditional sale) must end peacefully also. There are two types:

1) Defense against use of force to get chattels back

a) Timely demand required unless futile

b) Can only be recovered from wrongdoer

c) Hot pursuit required

2) Privilege to enter land

a) From wrongdoer, ok with demand, at a reasonable time and in a reasonable manner

b) From innocent party, the same as above but must reimburse innocent party for any damage during entry

c) No privilege if chattel ends up on land through fault of owner (negligently letting cattle wander)

Front 59

What are the rules for privelege of arrest?

Back 59

IX Privelege of arrest. A privilege against trespass for a private citizen or a police officer making an arrest. Also a privilege against battery.

1) Misdemeanor arrests – Must be a breach of the peace and in the arresting parties’ presence. Reas force allowed, never deadly force.

2) Felony arrest by cop – Reasonable belief of felony, reasonable belief of identity, reasonable force including deadly force (if serious harm is threatened)

3) Felony arrest by citizen – Felony must have been committed, reasonable belief of identity, reasonable force including deadly force (if serious harm is threatened)

Front 60

What is the defense of neccessity?

Back 60

X Necessity. Available for interference with real or personal property when it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than the invasion. Public necessity – no reimbursement required. Private – reimbursement for damage is necessary.

Front 61

What is the rule for discipling children?

Back 61

XI Discipline – reas force allowed to discipline children

Front 62

What are the components of common law defamation?

Back 62

1) Defamatory language
2) Of or concerning plaintiff
3) Publication
4) Damage to plaintiff’s reputation

Front 63

What additional components are added for constitutional defamation?

Back 63

5) Falsity of the statement
6) Fault on part of the defendant

Front 64

What is defamatory language?

Back 64

Language which tends to adversely affect one’s reputation. Statement of opinion is actionable if it appears based on specific facts, and express allegation of those facts would be defamatory. Plaintiff may plead facts to establish inflammatory innuendo. Must be a living person. Corp, association etc may be ok, finance, honesty, etc.

Front 65

What is "of or concerning plaintiff?"

Back 65

The plaintiff must establish that a reasonable listener would understand that it referred to him. Plaintiff may plead “colloquium” (extrinsic evidence to establish that the statement refers to him)

A group can also be defamed, assuming the statement refers to all members of a small group (everybody wins) but not a large group (nobody wins). Some members of a small group, plaintiff can recover if reasonable person would view the statement to be about plaintiff

Front 66

What is Publication?

Back 66

Statement must be communicated to someone other than plaintiff, either intentionally, or negligently, and each repetition counts as a publication. Most states have adopted a single publication rule for magazines, newspapers, etc.

Primary publishers are liable to the same extent as the author. Anyone who repeats is also liable, even if the source is cited. Secondary publishers (those who sell tapes or newspapers) are only liable if they are aware of or should be aware of defamation

Front 67

What are the damage rules for common law defamation?

Back 67

Libel – defaming by written word (permanent medium). Damages are presumed.

Slander – defaming by speech (evanescent medium). Damages must be proven unless the slander is slander per se:

1) Adversely affect business / reputation
2) Loathsome disease
3) Chastity of a woman
4) A crime involving moral turpitude

To analyze a medium look to permanency, area of dissemination, and deliberate character to the publication

Front 68

Const. Def: Falsity of the statement?

Back 68

Plaintiff has the burden to prove the statement is false

Front 69

Const. Def: Fault on the part of the defendant?

Back 69

a) Public person / public figure:

A person with pervasive fame, notoriety, or someone who voluntarily assumed a central role in a particular public controversy

Such a person must prove actual malice (NY Times v Sullivan), which is knowledge or falsity or reckless disregard for statement’s truth.

*Altering a quote – material change in meaning – can be malice if deliberate

b) Private persons need only prove negligence regarding falsity (Gertz v Welch).

Neg -> actual damages are recovered
Malice - > damages presumed, punitives allowed

Front 70

What defenses are avaliable for defamation?

Back 70

1) Consent is a complete defense
2) In purely private matter cases, truth becomes a defense

3) Absolute privilege

4) Qualified Privelege

Front 71

What things are absolutely priveleged in defemation cases?

Back 71

Remarks made during judicial proceedings by basically anyone who is supposed to be talking

Legislators in debate – no requirement of relationship of statements to any matter at hand

Federal executive officials while exercising functions of his office, though reasonable relationship to matter at hand is required

Compelled Broadcasts (news stations that are forced to air candidates or newspapers that print public notices)

Between Spouses

Front 72

What about qualified priveleges for defamation?

Back 72

defendant has burden that privilege exists. Can be lost if the statement is outside the scope of the privilege (common sense test), or it is shown that the speaker acted with malice.

Accurate reports of official proceedings

Defense of one’s actions, property, or reputation

Statements in the interest of the publisher (statement of doctor to bill collector containing defamatory statements)

Statements in the interest of the recipient (a statement by a credit bureau to a customer)

Common interest of recipient and publisher (a statement by a charity board member to another)

Public interest (statement to parole board by one who opposes parole, book reviews)

Front 73

What are factors that a court may consider for defamation but that aren't really defenses?

Back 73

5) Not a defense, but a trier of fact may consider no malice, retraction, anger provoked by plaintiff, as mitigating factors

Front 74

Privacy Tort: Appropriation of Plaintiff’s Picture or Name

Back 74

1) Unauthorized use of picture or name

2) For commercial advantage

3) Limited to advertisements or promotions of goods / services

4) Mere economic benefit, unconnected to a product or service, is not enough

Front 75

Privacy Tort: Intrusion into seclusion

Back 75

1) Act of prying or intruding that is…

2) Objectionable to a reasonable person

3) The res into which there is an intrusion must be private
That is, photographs of private act in public place are not actionable

Front 76

Privacy Tort: III) False Light

Back 76

1) Attribution of views / actions not taken to plaintiff

2) Objectionable to reasonable person


3) Must be publicity
Malice must be shown if the matter is in public interest

Front 77

Privacy Tort: IV) Public disclosure of private facts

Back 77

1) Disclosure of private information

2) Objectionable to a reasonable person

3) First Amendment limitations probably apply if in public interest – that is, must prove malice

Front 78

What are some general privacy tort considerations?

Back 78

1) Proximate cause must be shown

2) No proof of special damages is necessary (mental anguish and emotional distress are enough)

3) Good defenses: consent plus defamation defenses. NOT: Truth, inadvertence, good faith, lack of malice.

4) Right to privacy is a personal right, and does not extend to members of a family, does not survive death of plaintiff, not assignable, no corps.

Front 79

What are the components of intentional representation and explain them?

Back 79

1) Mispresentation of a material fact (no duty to disclose, opinion not actionable unless rendered by someone with superior skill in an area). Silence is not enough; one must make affirmative misrepresentations. Active concealment is enough

2) Scienter: when defendant made the statement, he knew or believed it was false (or that there was no basis for it) e.g. scienter means “knew it was a lie” OR reckless disregard for truth

3) Intent to induce reliance: to induce plaintiff to act or refrain from action in reliance upon the misrepresentation

4) Causation (actual reliance)

5) Justifiable Reliance (generally only justifiable as to statements of fact, not opinion. No duty to investigate.)

6) Damages (actual pecuniary loss)

Front 80

What are the components of Negligent representation?

Back 80

1) Misrepresentation in a business or professional capacity

2) Breach of duty toward a particular plaintiff – that is, only if reliance by a particular plaintiff could be contemplated can this tort be brought

3) Causation

4) Justifiable Reliance

5) Damages

Front 81

What are the components of malicious prosecution?

Back 81

1) Institution of criminal proceedings against plaintiff

2) Termination in plaintiff’s favor

3) Absence of probable cause for prior proceedings – this means insufficient facts for a reasonable person to believe that plaintiff was guilty, or defendant, in fact, did not actually believe plaintiff to be guilty

4) Improper purpose (other than bringing a person to justice)

5) Damages (prosecutors are immune from liability)

Front 82

What are the components of abuse of process?

Back 82

1) Wrongful use of process for an ulterior purpose

2) A definite act or threat against plaintiff to accomplish this ulterior purpose

Front 83

What are the components of interference with business relations?

Back 83

1) Existence of valid contractual relationship or valid business expectancy – such as diverting buyers away from a real estate broker

2) Defendant’s knowledge of the relationship or expectancy

3) Intentional interference by defendant (including inducing breach of contract or expectancy). The interference must be intentional.

4) Damages – must prove pecuniary but can allow anguish / punitives in proper cases

*) Priveleges – proper attempt to obtain business for itself or its interests is not tortuous. For example, collecting on a debt knowing that debtor will default on someone else is not tortuous.

Front 84

What is the prima facie case for negligence?

Back 84

Duty, breach, causation, damages, defenses

Front 85

What two questions do we ask for duty of care?

Back 85

Was the plaintiff forseeable?
What is the applicable duty of care?

Front 86

What are the forseeable plaintiff rules?

Back 86

A) Forseeable Plaintiffs – a duty of care is owed only to foreseeable plaintiffs. A problem arises when a defendant breaches a duty to one plaintiff but also another, nonforseeable plaintiff. How do we handle this?

1) Cardozo View (majority) – Forseeable zone of danger. Plaintiff 2 can recover only if she can establish that a reasonable person would have forseen a risk of injury under the circumstances, that is, P2 was located in the geographic zone of danger.

2) Andrews View (minority) – Everyone is foreseeable. P2 can establish the existence of a duty by showing a breached duty to P1

Front 87

Discuss three specific special situations for duty of care?

Back 87

1) Rescuers – danger invites rescue. If defendant negligently places himself in peril, he has breached a duty to injured rescuers

2) Viable fetus – A duty of care is owed to a viable fetus. In case of failure to diagnose congenital defects or properly perform an abortion, the child may not sue for wrongful life, but the parents can sue for wrongful birth for medical / pain and suffering

3) Intended beneficiaries of Economic Transactions - A 3rd party for whose economic benefit a legal or business transaction was made may be a foreseeable plaintiff

Front 88

What is the basic duty of care?

Back 88

1) The Reasonable person – an objective standard. Stupidity is not an excuse, but physical conditions are considered (i.e. an average BLIND person)

Front 89

What is the duty of care for professionals?

Back 89

2) Professionals – Duty to possess knowledge and skill of a member of the profession in good standing in similar communities. Specialists are held to a national standard. There is a duty to disclose risks of treatment to enable a patient to make informed consent.

Front 90

What is the duty of care for children?

Back 90

3) Children – children are held to a standard care to behave as a child of like age, education, experience, intelligence, and experience. A subjective test. Under 4 – no capacity to be negligent. Adult activities – adult standard of care

Front 91

What is the standard of care for common carriers and innkeepers?

Back 91

A very high degree of care, liable for slight negligence

Front 92

What is the duty of care from a driver to a guest?

Back 92

A guest in a car is owed a duty of ordinary care. In a few states with guest statutes, one owes a duty to nonpaying passengers only for reckless tortuous conduct.

Front 93

What duties does a bailor owe?

Back 93

For a gratuitous bailment, bailor owes duty to disclose known dangerous chattel defects. In a bailment for hire, the bailor must inform of chattel defects of which he should be aware

Front 94

What duties does a bailee owe?

Back 94

The standard of care depends on who benefits from the bailment. If it is for the sole benefit of the bailor, a low standard of care applies (slight diligence). If it is for the sole benefit of the bailee, a high standard of care applies (great diligence). If there is mutual benefit, ordinary standard of care applies.

Front 95

What is the duty of care for emergencies?

Back 95

A reasonable person under the circumstances, unless the emergency is of the defendants making.

Front 96

What is the modern trend with land occupiers?

Back 96

Modern Trend is to do away with status distinctions and impose a reasonable person standard when it comes to dangerous conditions on land.

Front 97

What duty is owed to trespassers?

Back 97

A) Trespassers: No duty is owed to an undiscovered trespasser (unless, of course, in the case of an easement or license holder, in which case ordinary care is owed to tresspassers) If trespassers are discovered or anticipated, the landowner has a duty to:

i: Warn or make safe concealed, unsafe, artificial conditions that present a risk of serious bodily harm or death

ii: Use reasonable care in active operations

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What about infant trespassers?

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There is a duty to infant trespassers if:

i: A dangerous artificial condition that owner is or should be aware of

ii: The owner knows or should know that children frequent the area

iii: The condition is likely to cause injury ie because children cannot appreciate risk

iv: The expense of remedying situation is slight next to magnitude of the risk

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What duties are owed to licensees?

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C) Licensees: These people are on your property for their own benefit. Social guests are included in this category. There is a duty to conduct i) active operations with due care and ii) warn of dangerous conditions of any type.

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What duties are owed to invitees?

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They are on your land for your own benefit. Same as licensees plus the duty to reasonably inspect and make corrections. Can lose invitee status if outside of scope of invitation.

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What duties are owed by a person who opens his land for recreational activities?

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If you open your land up to the public for no fee, duty is to not willfully or maliciously fail to guard against a dangerous condition or activity.

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What duties are owed by a leasee/lessor?

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F) The lessee has a general duty to maintain the premises. The lessor must warn of existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection. If the lessor covenants to repair, he is liable for unreasonably dangerous conditions. If the lessor volunteers to repair and does so negligently, he is liable. Either may be liable to a guest

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What duties are owed by a vendor of real estate?

Back 103

A vendor of real estate must disclose concealed, unreasonably dangerous conditions that the vendor knows of or has reason to know, and which he knows the vendee is not likely to discover on a reasonable inspection.

Front 104

When does a statute become "negligece per se?"

Back 104

A statute’s specific duty may replace the more general common law duty if:

i) The statute provides for a criminal penalty
ii) The statute clearly defines the standard of conduct

iii) Plaintiff is within the protected class

iv) The statute was designed to prevent the type of harm suffered by plaintiff

Violation of some statutes may be excused where compliance would cause more danger that the violation or where compliance would be beyond defendant’s control

Maj view: unexcused statutory violation is negligence per se (conclusive presumption of duty and breach) Compliance, however, does not establish due care

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What are the rules for negligent infliction of emotional distress?

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NIED: There are two ways to pull this off, either threatening physical injury or by directly causing distress which causes injury. There is a duty to avoid causing emotional distress to others. A foreseeable risk of severe emotional distress for no zone cases

A) A physical injury is required. A severe shock to the nervous system that causes physical symptoms is enough, though a physical injury is more helpful. A threat of physical injury is not required in case of erroneous report of relative’s death or mishandling of relative’s corpse

B) Zone of danger – Bystander cases. Most courts require that the threat be directed at plaintiff or someone in her immediate presence. A strong modern trend allows based on forseeability factors if 1) plaintiff and the injured person were closely related, 2) plaintiff was present at the time, and 3) plaintiff observed or perceived the injury

Note – if physical injury has been caused by another tort, plaintiff can tack on ed damages without the need to consider these torts.

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When are there affirmative duties to act?

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A) Assumption of duty by acting. Aiding someone in peril? You are now required to do so with due care

1) Good Samaritan statutes exempts doctors, nurses, etc from ordinary, but not gross negligence

B) Peril due to Defendant’s conduct – One has a duty to assist someone who one has placed in peril

C) Special relationship – parent/child, employee/employer, common carriers, innkeepers, shopkeepers and others that gather the public for profit owe duties of reasonable care to aid or assist their patrons. Places of public accommodation have a duty to prevent injuries by 3rd parties.


D) Duty to control others – generally no duty here. An affirmative duty may be imposed, however, if one has the actual ability and authority to control a person’s actions and knows or should know the person is likely commit acts that would require exercise of this control

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When has a duty been breached?

Back 107

When the applicable standard of care has not been adhered to. There are also special rules:

III Breach

A) Custom or Usage – may be used to establish standard of care, but does not control the question of whether conduct amounted to negligence. Perhaps an entire industry is acting negligently?

B) Violation of a statute – duty/breach established by conclusive presumption (neg per se, see above) Still must prove causation and damages

C) Res Ipsa Loquitur – Show that i) accident does not occur unless someone is negligent, and ii) negligence is attributable to defendant (this type of accident ordinarily happens because of the negligence of someone in defendant’s position). This can be done by showing instrumentality was in exclusive control of defendant. Plaintiff must establish freedom from fault as well. A prima facie case has been made here, though trier of fact can still reject inference of negligence. Watch for directed verdicts in these cases – if plaintiff has established res ipsa or some other evidence, deny it. Grant it if no RI or other evidence. Plaintiff’s motion should always be denied unless there’s neg per se plus no issues of proximate cause

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What tests are avlaible for causation?

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Which test? But for (easy) Substantial factor (defendant’s conduct alone enough?) Alternate causes (Burden shifts to defendants – Summers v Tice)

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What are the rules for proximate cause in direct cause cases?

Back 109

A) Proximate Cause

1) Direct Cause: If a particular harmful result was at all foreseeable from defendant’s negligent act to the time of plaintiff’s injury, the unusual manner in which the injury occurred or unusual timing of cause and effect is irrelevant (car is speeding, swerves to avoid pedestrian, spins out, bounces off another car, hits pedestrian – still liable).

However, when defendant’s conduct creates a risk of a harmful result, but an entirely different and totally unforeseeable type of harmful result occurs, defendant is not liable. (cab is speeding, and a section of freeway collapses, cabbie not liable, even if they wouldn’t have been on that section of freeway had he not been speeding).

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What are the rules for indirect causation?

Back 110

2) Indirect cause cases: Defendant is liable where his negligence caused a foreseeable harmful response or reaction from a dependant intervening force or a foreseeable risk that an independnent intervening force would harm plaintiff.

a) Dependent intervening forces that are always foreseeable: negligent rescuers, efforts to protect the person or property of oneself or another, medical malpractice, injuries caused by another “reacting” to defendant’s actions, subsequent diseases caused by a weakened condition, subsequent accident substantially caused by original injury.
b) Independent intervening forces – did defendant’s conduct increase the risk of harm from these acts? (int torts / crimes of others, neg of others, Acts of God).
Ex – valet leaves car door unlocked.

c) Unforseeable intervening forces – if defendant increased the risk of a foreseeable harmful result and the result is produced by an unforeeable force, defendant is liable, unless that force was a crime / int tort of another. Example – failure to properly clean oil barge, which leads to unreasonable risk of explosion from any one of several sources. A lightning strike causes explosion – liable. An arsonist – not liable.

d) Unforseeable result by foreseeable forces – not liable. Reckless driving cabbie in a rainstorm with falling branches. Forces foreseeable (falling branches). Cabbie swerves to avoid one, lands on shoulder. Another branch lands on roof, injuring P. Cabbie not liable.

e) Unforseeable result, unforeseeable intervening force. SUPERCEDING NOT LIABLE. When defendant negligence causes results that are not within the increased risk that he caused, not liable. That is, by negligently blocking a road, defendant in no way increased risk of a traffic accident when plaintiff took a different route.

f) Eggshell plaintiff is the rule, even if unforeseeable

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What notes should be made about damages in negligence cases?

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1) Personal Injury (includes past, present, and prospective) special and general.

2) Property damage (reasonable cost of repair or if nearly destroyed, FMV at the time of the accident).

3) Puntives: “Wanton and willful”, reckless, malice

4) Cannot recover interest from date of damage in PI or attorney’s fees

5) Duty to mitigate (reas steps)

6) Collateral source rule – not reduced by insurance

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What defenses are avaliable in negligence cases, and what are they?

Back 112

-Contributory negligence – bars recovery in neg, not int
-Last clear chance – plaintiff’s rebuttal to cont. neg.
-Helpless peril – def knew/should know P in HP
-Innatentive peril – def knew P in HP
-Prior Negligence cases – for LCC to apply, defendant must have been able, but failed, to avoid harming plaintiff at the time of the accident. If the only negligence by def was earlier, will undo this doctrine
-Imputed cont neg – is P vic liable for 3’s neg? (master servant, partner, JV, not parent child, husband and wife, owner/driver of car)
-Assumption of Risk
1) Knew of risk
2) Voluntarily proceeded in face of risk
-Implied assumption, only if average person would clearly appreciate the risk. Cannot if no alternative, or fraud, force, emergency. CC’s, utils no limit liability by disclaimer, class protected by statute cannot assume risk
-Express: ok
-Not a defense to IT, but is a defense to wanton and willful misconduct
-Comparative negligence – presume on MBE unless told otherwise
-Comp Neg can be total or partial
-Most comp neg abolished IAR, allow EAR, LCC no apply

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What is the prima facie case for all strict liability?

Back 113

I. Prima facie case: a) Absolute duty of defendant to make safe, b) breach of that duty, c) breach of that duty was the actual and proximate cause of injury d) Damage to person or property

Front 114

What are the strict liability rules for animals?

Back 114

1) Strict liability exists for wild animals (so long as person did nothing to bring about the injury), but not for domestic animals, (unless owner knows of that particular animals dangerous propensities that are not common to the species)

2) Strict liability is not available to trespassers (use negligence). Maybe liable on Int. Tort grounds for vicious watchdogs.

3) Tresspass of animals = strict liability

Front 115

What are the rules for ultrahazardous activities?

Back 115

1) Duty exists if i) risk of serious harm to persons or property, ii) one that cannot be performed without risk of serious harm, iii) Activity is not commonly engaged in in the particular community. Some courts consider value of activity and its appropriateness to the location

2) This duty is owed to all foreseeable plaintiffs.

Front 116

What are the rules for defenses in strict liability (not product) cases?

Back 116

In Cont Neg states, no defense, unless plaintiff knew of danger and his unreasonable conduct was the very cause of the ultrahazardous activity miscarrying. Assumption of the risk is a good defense. Comparative negligence states allow rules in SL cases.

Front 117

How is breach established in products liability cases?

Back 117

1) Duty to supply safe products (neg, int, sl, etc) and 2) the existence of a defect when the product left def's control

Front 118

What types of defect are there?

Back 118

manufacturing (different and more dangerous than products made properly), Design defect (all the same but with dangerous propensities), Inadequate warning (Manufacturer failed to give warnings on risks involved in using product. For liability to attach, must not be apparent to users).

Front 119

How is a defect proven?

Back 119

B) Proving a defect – plaintiff must prove that (MD) product performed to fail safely as an ordinary consumer would expect, and defendant must anticipate foreseeable misuse. Applies with food products. For a design defect, prove that could have been made safer, without serious impact on price or utility. Noncompliance with government safety standards = defect. Compliance = evidence of safety.

Front 120

What are the rules for scientifically unknowable risks at the time of marketing and distribution channels?

Back 120

C) Defendant will not be held liable for scientifically unknowable risks at the time of marketing, nor when product is unavoidably unsafe and there is no safer way to make the product (e.g. knives)

D) The defect must exist when it left defendants control. Inferred if normal channels of distribution

Front 121

What are the rules for intent-based product liability?

Back 121

If defendant intended the consequences or knew they were substantially certain to occur. Punitives are available, defenses are the same as other int. torts cases. Any injured plaintiff may sue.

Front 122

What are the rules for negligence-based products liability?

Back 122

Must show duty, breach, causation, damages, as with regular negligence. Any foreseeable plaintiff may sue. Any commercial supplier can be liable. There has to be negligent conduct which leads to a defect being supplied. Res ipsa is allowed. An intermediary’s negligent failure to discover a defect does not supersede the original manufacturers negligence unless beyond ordinary foreseeable negligence. Physical injury / property damage must be shown. Neg defenses available.

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What is the prima facie case for strict products liability?

Back 123

Duty: Duty to supply safe products.
2) Breach: see defects, above. Breach makes product UNREASONABLY DANGEROUS
3) Causation: breach existsed when it left defendants control. Inferred if normal channels of distribution
4) Damages: Property / physical injury. No econ only.
5) Defenses

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What is the duty prong of strict tort liability?

Back 124

Applies only to products. Not products incident to services. Must reach plaintiff without substantial alteration. No privity is required. Forseeable plaintiffs only.

Any commercial supplier can be liable. Not casual sellers.

Front 125

What is the breach prong in strict products liability cases?

Back 125

Breach: see defects, above. Breach makes product UNREASONABLY DANGEROUS

Front 126

What is the causation prong of of strict products liability?

Back 126

3) Causation: breach existsed when it left defendants control. Inferred if normal channels of distribution

Front 127

What is the damages prong of strict products liability?

Back 127

4) Damages: Property / physical injury. No econ only.

Front 128

What defenses are avaliable in strict products liability?

Back 128

5) Defenses, Comp neg is applicable. Cont. neg is not where mere failure to discover or misuse was foreseeable. Assumption of risk is a defense. Disclaimers irrelevant in SL or neg if PI or property damage occurred.

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What are the rules for implied warranty of merchantibility violations and what defenses are avaliable?

Back 129

1) Merchantibility: Goods are of average acceptable quality and are generally fit for the ordinary purpose for which they are used

Duty: Owed to buyer, family, household, and guests for PI. These warranties extend to bailments and leases as well as sales.

Breach. If the product does not live up to either warranty, breach is established without fault.

Causation: Ac/Prox, the same as ordinary negligence cases.

Damages: Personal injury and property damage, and purely economic loss, are allowable

Defenses: Assumption of the risk (using while knowing of warranty breach) and contributory negligence to the same extent as in strict l iability) contributory negligence to the same extent as SL. Failure to give notice of breach is a defense under the UCC.

Disclaimers are rejected in PI but can be upheld in econ cases.

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What are the rules for the warranty of fitness for a particular purpose?

Back 130

2) Fitness for a particular purpose: which arises when the seller knows or has reason to know the particular purpose for which the goods are required and that buyer is relying on the seller’s skill and judgement in selecting the goods

Duty: Owed to buyer, family, household, and guests for PI. These warranties extend to bailments and leases as well as sales.

Breach. If the product does not live up to either warranty, breach is established without fault.

Causation: Ac/Prox, the same as ordinary negligence cases.

Damages: Personal injury and property damage, and purely economic loss, are allowable

Defenses: Assumption of the risk (using while knowing of warranty breach) and contributory negligence to the same extent as in strict l iability) contributory negligence to the same extent as SL. Failure to give notice of breach is a defense under the UCC.

Disclaimers are rejected in PI but can be upheld in econ cases.

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What are the rules for misrepresentation cases for products?

Back 131

a) Express Warranty: Any affirmation of fact concerning goods that becomes part of the basis of the bargain

Duty: any consumer, user, bystander. Bystander sues based on buyers reliance. Includes bailments and leases.

Breach: No fault – only no live up to warranty.

Causation:, Damages, Defenses: Just like implied warranties, above

Disclaimer: Only in the unlikely event that it is consistent with the warranty

b) Misrepresentation of fact: where statement was a material fact concerning quality or uses of goods, and the seller intended to induce reliance by the buyer in a particular transaction. Usually based on strict liability but may also arise for intentional or negligence misrepresentation.

Justifiable Reliance: Required, need not be victims.

Causation and damages – actual cause is shown by reliance. Proximate cause and damages are the same as for strict liability.

Defenses – assumption of risk is not a defense if plaintiff is entitled to rely on the representation. Cont. Neg the same as strict liability, unless the reps were intentional.

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Is nuisance its own tort?

Back 132

Nuisance is not a separate tort in itself. Rather, nuisances are a type of harm, the invasion of either public or private rights that are tortuous because it falls into one of tort categories (neg, int, sl). There are two types of nuisance – public and private.

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Define private nuisance:

Back 133

Private nuisance is the substantial, unreasonable interference with another private individual’s use or enjoyment of property that he actually possesses or which he has a right of immediate possession.

Front 134

What is substantial interference in nuisance?

Back 134

Substantial interference is interference that is offensive, inconvenient, or annoying to the average person in the community. It is not substantial if it is merely the result of the plaintiff’s hypersensitivity or specialized use of his own property.

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When is unreasonable interference, when is it needed, and what will the court consider?

Back 135

Unreasonable interference, required for nuisances based on intent or negligence, the severity of the inflicted injury must outweigh the utility of defendant’s conduct. Courts will balance the respective interests, considering neighborhood, land values, any alternative courses of conduct open to defendant

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What is the difference between trespass and nuisance?

Back 136

Tresspass to land distinguished – Physical invasion versus use and enjoyment

Front 137

What is a public nuisance?

Back 137

Public nuisance – unreasonable interferes with the health, safety, or property rights of the community (such as using a building for prostitution). Avaliable for private party if unique damage (also AG).

Front 138

What are the remedies for nuisance?

Back 138

Remedies, damages, injunction (if legal unavailable/inadequate, balance hardships, not where def is willful or against an assertion of right by plaintiff). Self help is available after notice, refusal, reasonable force may be used

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What are some special nuisance rules?

Back 139

Zoning is persuasive but not final. Each steel mill is only responsible for the pollution it causes. Cont. neg not a defense unless based on neg. Coming to nuisance not a defense unless you come strictly to make lawsuit.

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What is the general attack plan for torts?

Back 140

1) What causes of action exist and are the elements met?

2) What defenses apply?

3) What general considerations apply?

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What is the attack plan for intentional torts?

Back 141

BAF IT IC
Battery
Assault
False Imprisonment
IIED
Tresspass to Land
Tresspass to Chattel
Conversion

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What is the attack plan for defenses to intentional torts?

Back 142

COPS NA

Consent
defense of OTHERS
defense of PROPERTY
Self-defense
Necessity
Arrest

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What is the attack plan for Neglience cases?

Back 143

1) Prima Facie case
2) Defenses

Front 144

What is the attack plan for duty?

Back 144

COLA APE

Control 3rd persons
Owner of land
Lessee/vendee
Auto Driver

Aid others
Prenatal injuries
Emotional distress

Front 145

What is the mnemonic for remembering the slp torts?

Back 145

ME SIN

Misrep
Express warranty
Strict
Implied warranty
Negligence

(plus intent, rare)

Front 146

What is an alternative test for strict product liabilty?

Back 146

California: CERB

1) product does not meet Consumer Expectation
2) Risk of harm outweighs Benefit to socirty