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54 Cards in this Set

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  • Back
Name the strict liability torts.
(1) Injuries caused by animals
(2) Ultra-hazardous activities
(3) Product-related injuries
If someone is bitten by a dog, is the owner strictly liable?
No, unless the owner had reason to know that the dog was vicious.
Can a dog owner be held liable the first time his dog bites someone?
Yes, but if the owner had no other hint of his dog's viciousness, he can be held liable only on a negligence theory.
Aside from known vicious dogs, what other animals are owners strictly liable for?
(1) Trespassing cattle
(2) Wild animals

In these cases, the owner's safety precautions are of no relevance whatsoever.
What is an ultra-hazardous activity?
An ultra-hazardous activity is an activity that
(1) Cannot be made safe given existing technology
(2) Poses a risk of severe harm
(3) Is uncommon in the area where it is being carried out

Ex. explosives, toxic chemicals, biological substances (chlorine gas, anthrax, hydrochloric acid), nuclear energy or radiation.
For strict liability, are the defendant's safety precautions relevant to your analysis?
No. For strict liability, the defendant's safety precautions are irrelevant.
What causes of action should a plaintiff bring if he is burt by a product?
Negligence against manufacturer, warrantee claim, sometimes a battery, and strict liability.
What are the elements of strict products liability?
(1) The defendant is a merchant, NOT a casual seller (garage sales, used cars, service providers);
(2) A defect in the product: manufacturing or design;
(3) The defect existed when it left the defendant's hands;
(4) The plaintiff is a foreseeable user making foreseeable use of the product.
Can a merchant be liable under strict produts liability even if he did not interact with the plaintiff?
Yes. The plaintiff is free to sue ALL the merchants in the distribution chain.
What is the difference between a manufacturing defect and a design defect?
Manufacturing defect: the product differ from all the others. One-in-a-million.
Design defect: how all the products were made, including warnings and instructions.
To successfully assert design defect, what must a plaintiff show?
(1) The product could be built in some other way - the Hypothetical Alternative Design. H.A.D.
(2) The H.A.D. is safer.
(3) The H.A.D. is economical.
(4) The H.A.D. is practical... it does not make the product cumbersome.
For design defect, what if a product has a danger that cannot be eliminated by a H.A.D.?
The manufacturer must put a warning on the product, and failure to do so constitutes a design defect.
For products liability, what presumption exists for "defect existed when it left defendant's hands?"
If the product moved in ordinary channels of commerce, the plaintiff enjoys a presumption that the defect existed when the product left the defendant's hands.
Are there any affirmative defenses to strict products liability?
Yes. The majority of states employ comparative liability.
What is the basic test for nuisance?
A balance of interests. The defendant is entitled to use his land for whatever lawful purpose he chooses, but not to the degree that he makes his neighbor miserable.
What is the basic requirement for vicarious liability?
A relationship between the defendant and the tortfeasor.
(1) Employer-employee
(2) Principal-agent
When is an employer vicariously liable for torts committed by an employee?
When the tort occurs within the SCOPE of the employment.
For vicarious liability, do intentional torts ever fall within the scope of employment?
Generally no, but there are exceptions.
(1) When the boss authorizes use of force for the job;
(2) The job routinely generates tension or friction b/t customers and employees (re-possessor);
(3) Employee is acting out of a misguided zeal for employer (accusations of shoplifting).
Is a hiring party vicariously liable for the actions of an independent contracter?
Generally no, but there is an exception.

If a landowner or occupier hire an IC, and the IC hurts an INVITEE ON the premises, the landowner is vicariously liable.
Is a car owner vicariously liable for the actions of a car driver?
Generally no, but there are exceptions.

If you use the car to do an errand for the car owner, the driver becomes the agent of the owner, so the owner is vicariously liable.
What is loss of consortium?
If the plaintiff is married, the uninjured spouse gets a second and separate cuase of action, for
(1) Loss of services (laundry)
(2) Loss of society (conversation)
(3) Loss of sex
What are the two types of defamation you always have to think of?
(1) Common Law Defamation
(2) First Amendment Defamation
How many elements are there for common law defamation?

What are they?

(1) Defendant makes a defamatory statement that specifically identifies the plaintiff;
(2) Publication of the statement by the defendant;
(3) Maybe damages, depending on whether libel, slander per se, or regular slander.
How many defenses are there to common law defamation?

What are they?

(1) Consent
(2) Truth
(3) Privilege
As a common law defamation defense, what are the two different types of privilege?
(1) Absolute privilege: based on the identity of the defendant.
(2) Qualified privilege: based on the subject matter of the speech.
Can you defame a dead person?
Nope, just living persons.
Are these statements defamatory?

(1) name calling?
(2) allegation of fact?
(3) opinion?
(1) Never
(2) If it reflects negatively on a trait of character
(3) Can go either way. Opinions are defamatory if the speaker has a factual basis for his opinion that is apparent to the listener.
For defamation, what is "publication of the statement?"
Negligently or intentionally letting the statement reach the ears of at least ONE other person.
When do you need to prove damages in a defamation suit?
When the type of defamation is regular slander (not slander per se). Then the plaintiff must show ECONOMIC harm, such as loss of contract, loss of patronage.
What is the difference between libel and slander?
Libel is any defamation captured in a permanent format.
Slander is spoken defamation.
Do you need to prove damages to succeed on a claim for
(1) Libel?
(2) Slander per se?
(3) Regular slander?
(1) No.
(2) No.
(3) Yes. Proof of economic damages is required.
What is slader per se?
It is spoken defamation that is particularly harmful to a person's reputation. There are four main categories of speech that qualify
(1) Concerns plaintiff's business or profession
(2) Says plaintiff committed a crim of moral turpitude
(3) Implies that a single woman is not a virgin
(4) Says plaintiff has some loathsome disease (leprosy or venerial disease).
For defamation, does it count as publication when one spouse says something to the other spouse?
No. Spouses enjoy absolute privilege.
For defamation, does it count as publication when one officer of the 3 branches of government says something in the conduct of his official duties?
No. They officers of the 3 branches of government enjoy absolute privilege. That's why prosecutors can argue to a judge!
What is a "qualified privilege" defense to defamation?
It a defense that only arises if
(1) The speech is sociall useful, like letters of recommendation, info about creditworthiness, statements made to police, etc.;
(2) The speech is limited to relevant matters;
(3) It is spoken in good faith.
When MUST a plaintiff bring a First Amendment defamation claim, as opposed to a common law claim?
When the alleged defamatory statement is one of PUBLIC CONCERN.
What are the additional elements of a First Am Defamation claim?
(1) Plaintiff must show FALSITY;
(2) Plaintiff must show FAULT:
Public figure: malice
Private figure: negligence
How many variations are there on an invasion of a right to privacy?

What are they?

(1) Appropriation
(2) Intrusion
(3) Flase Light
(4) Disclosure
What is the privacy tort of appropriation?
Rule: When the defendant uses the plaintiff's name or picture for commercial purposes without permission. Ex. packaging, TM, advertising.

Exception: the use is newsworthy.
What is the privacy tort of intrusion?
Rule: Invasion by defendant of plaintiff's SOLITUDE in a way objectionable to the AVERAGE person.

Note: Plaintiff must have an expectation of privacy; does not require trespass on land.
Does the privacy tort of intrusion require that the defendant actually trespass on plaintiff's land?
What is the privacy tort of false light?
Rule: WIDESPREAD dissemination of a MAJOR misrepresentation about plaintiff that would be objectionable to the AVERAGE person.

It DOES NOT MATTER whether the defendant did this on purpose or not.
What is the privacy tort of disclosure?
Rule: widespread dissemination of confidential information about the plaintiff that would be objectionable to the AVERAGE person.

Exceptions:newsworthiness exception, 2 spheres of life (where plaintiff keeps them separate but both are fairly public).
What are the defenses to privacy torts?
(1) Consent
(2) Absolute privilege b/t spouses or officers of 3 branches of govt
(3) Qualified privilege for socially useful, relevant speech offered on good faith
When does an express warrantee arise?
An express warrantee arises when a SELLER or SUPPLIER makes any affirmation of fact or promise to the buyer relating to the goods that becomes party of the basis of the bargain.
When is a warranty of merchantability implied?
A warranty of merchantability is implied in a sale by a merchant who deals in goods of the kind sold. This warranty is that the goods are generally fit for the ordinary purposes for which such goods are used.
For negligent infliction of emotional distress, must the plaintiff always demonstrate physical injury?
Generally, yes.

But, in SPECIAL cases, a plaintiff can recover in the absence of physical injury where defendant's negligence creates a great likelihood of severe emotional distress.
Ex. mishandling the corpse of a family member
What is one of the major differences between intentional infliction of emotional distress and negligent infliction of emotional distress?
IIED does NOT require damages, while Negligent IED generally requires damages.
Are there any defenses to strict liability?
Yes! Assumption of risk.
Can children under 4 be held liable for intentional torts?
Yes. They are only exempt from negligence.
Can you sue for an intentional tort committed against someone even after they have died?
Yes. Actions for intentional torts do not expire upon the victim's death
What are the elements for a prima facie case of intentional misrepresentation?
(1) a misrepresentation
(2) doing the misrepresentation knowingly
(3) an intent to induce plaintiff's reliance
(4) damages
For the privacy tort of misappropriation, can a defendant be liable for using someone as the acknowledged basis of a TV movie, if the character is renamed?
Surprisingly, no! Liability for misappropriation is generally limited to use of plaintiff's name in connection with the PROMOTION or ADVERTISEMENT of a product or service.

Mere use of a name in a TV show or magazine, though motivated by profit, is not enough.
What is indemnity?

When is it available?
Indemnity is shifting the entire loss between tortfeasors.

(1) A contractual promise to indemnify
(2) Special relationship b/t the defendants allows for VICARIOUS liability
(3) Defendant is a supplier in a strict liability case who is liable to a customer, thus giving supplier indemnification against previous suppliers.