Torts Ii Exam

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Joint Venture

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agreement; common purpose; common pecuniary interest; mutual right of control

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Three exceptions for which employers are vicariously liable for independent contractors

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ultra hazardous activities; non-delegable duty due to public policy considerations; illegal activities

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Respondeat superior

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employee; acting within the scope of employment

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The three prototypical strict liability situations

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animals; abnormally dangerous activities; defective, unreasonably dangerous products

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Four elements used to determine whether an activity is abnormally dangerous

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high risk of serious harm; no way to complete safety; activity not commonly engaged in the area; danger vs. utility balancing test

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FiNeR SLiMe

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Fitness; Negligence; Representations; Strict Liability; Merchantability -- the five general theories of product liability.

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Prima facie case for product liability under negligence

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duty; breach; causation; damages.

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Five principal ways a provider can be negligent in products liability

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Negligent manufacture; Negligent design; Failure to inspect; Failure to warn; Poor quality components

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Defenses to negligence-based product liability

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Assumption of the risk; contributory negligence

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Defendant Can't Conceal Bad Commercial Products

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Defect; Control; Changes; Business; Causation; Privity Not Required - the 402A requirements for a products liability case based on strict liability

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Defective products tests

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"consumer contemplation" and "danger-utility" tests

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Three basic types of defects covered by a strict liability claim

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manufacturing defects; design defects; failure to warn

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Defenses for strict liability: AIM

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Assumption of the risk; Instructions - failure to follow; Misuse of product

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The two basic warranties in products liability

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Warranty of merchantability; fitness for a particular purpose

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What is the "type of contributory negligence that is also assumption of the risk"

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Knowingly, unreasonably, and voluntarily exposing oneself to risk of injury

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Defenses to breach of an implied warranty

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assumption of the risk; instructions - failure to follow; misuse; the type of contributory negligence that is also assumption of the risk; failure to provide timely notice of breach; and disclaimers

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Two sources of liability for product liability under express representations

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402B misrepresentation and UCC 2-313 express warranty

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Private nuisance

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Conduct that creates an unreasonable, substantial interference with the use or enjoyment of property; such as loud noise or noxious odors.

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In private nuisance, what are three things with which a nuisance might interfere?

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the land itself; health or comfort of possessor; peace of mind of possessor

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The private nuisance balancing test

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The burden on plaintiff's enjoyment and use of his land vs. the utility and necessity of the defendant's use.

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The five requirements of defamation under common law

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(FPADS) Fault; Publication; Against plaintiff; Defamatory statement; Special harm.

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Publication for defamation

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intentionally or negligently communicating a defamatory statement; to a third person; who understands it.

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Libel per se vs. slander per se

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Libel per se is libel "on its face," meaning no additional facts, either inducement or colloquium, need to be proved to establish the defamation. Slander per se is based on four defined categories (business/professional ability; sexual misconduct; loathsome disease; crime of moral turpitude)

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Actual malice

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knowledge that the statement is false or; reckless disregard for the truth (serious doubt to the truth)

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Four IOP sub-torts

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appropriation of plaintiff's name or likeness; instrusion on seclusion; false light; and private facts

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Elements for the appropriation of likeness or image IOP claim

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defendant's unauthorized use of plaintiff's name or likeness; for defendant's own commercial or business purposes

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POP - three elements of intrusion of seclusion IOP claim

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Prying, Objectionable to a reasonable person into a Private matter

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Elements of a false light IOP claim

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A false light statement that would be offensive to a reasonable person; for public figures add the element of actual malice.

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Elements of intrusion of seclusion IOP claim

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Public disclosure of private information, objectionable to the reasonable person, with no matter of legitimate public concern.

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MS. JARID

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Misrepresentation; Scienter; Justifiable and Actual Reliance; Intent; and Damages - the six elements forming the basis of a prima facie case for intentional misrepresentation, fraud or deceit.

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Five elements of prima facie case for malicious prosecution

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PlACID (Plaintiff's favor; Absence of cause; Criminal proceedings; Improper purpose; Damages)

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The three torts to economic/business interests

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trade libel (injurious falsehood); interference with contractual relations; interference with prospective advantage

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A PACK - prima facie case for interference with contractual relations

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act; purpose; affecting; contractual rights; knowledge (defendant's act with knowledge and intent to interfere adversely affecting plaintiff's contractual rights)

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Four elements of tort of interference with prospective advantage

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A PAK - Act; prospective advantage; Affecting; Knowledge (defendant's act with knowledge or intent to interfere adversely affecting a future economic advantage

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Five elements of trade libel (injurious falsehood)

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false statement about business; published by defendant intentionally disparaging; scienter; special damages