Torts

Question 1

Who is owed a duty?

Answer 1

1. ) Foreseeable Plaintiffs
2. ) Majority (cardozo) view: plaintiffs within the zone of foreseeable harm
3. ) Minority (Andrews) view - anyone who is harmed.

Question 2

Is that an Affirmative Duty to Act?

Answer 2

Generally, there is no affirmative duty to aid or rescue someone.

Question 3

What if a person assumes the duty to act? (Assumption of Duty)

Answer 3

If someone starts to air or rescue, they must act with reasonable ordinary care not to increase the risk of harm.

Question 4

What is a psychotherapists’ duty to warn?

Answer 4

If a patient makes credible threats of physical violence, the therapist is under a duty to warn the intended victim.

Question 5

What is the normal standard of care?

Answer 5

To act as a reasonably prudent person under the circumstances.

Question 6

When do you apply the normal standard of care?

Answer 6

Apply the general standard of care unless a special standard applies (landowner, physician, etc) or there is a statute (negligence per se).

Question 7

What is the Modern Rule regarding the standard of care for possessors of land?

Answer 7

Landowner must exercise reasonable care under the circumstances to all land entrants, except trespassers.

Question 8

What is the traditional approach regarding standard of care for possessors of land?

Answer 8

First, categorize the plaintiff as a trespasser, invitee, or licensee. Then analyze the standard of care owed to that person.

Question 9

What is a trespasser, and what duty does a landowner owe them?

Answer 9

1. ) on the land without consent or permission

2. ) Duty to refrain from willful, wanton, reckless, or intentional misconduct.

Question 10

What is an invitee, and what duty does a landowner owe them?

Answer 10

1. ) Invited as member of the public or a business visitor

2. ) Duty: to inspect and discover unreasonably dangerous conditions and protect the invitees from them.

Question 11

What is a licensee, and what duty does a landowner owe them?

Answer 11

1. ) Enters with express or implied permission for a specific purpose.
2. ) Duty: to warn of concealed dangers that are known or should be obvious and use reasonable care in conducting activities.

Question 12

Upon what conditions will a landowner be liable for an attractive nuisance that causes injury?

Answer 12

1. ) artificial condition exists in a place where the owner knows or should know that children are likely to trespass.
2. ) the condition imposes an unreasonable risk of serious bodily injury.
3. ) The children cannot appreciate the danger due to their youth;
4. ) The burden of eliminating the danger is slight compared with the risk of harm; AND
5. ) the land possessor failed to exercise reasonable care to protect the children.

Question 13

Concerning negligence liability between landlord and tenants, what duty does a landlord owe?

Answer 13

To protect from foreseeable attacks by third parties.

Question 14

What are the duties of children in a negligence scenario?

Answer 14

1. ) Duty to act as a reasonable child of the same age.

2. )

Question 15

How does a industry custom and the standard of care work together?

Answer 15

Evidence of an industry or community custom is admissible as evidence of the relevant standard of care, but that evidence of custom is not conclusive.

Question 16

What standard of care do Professionals have?

Answer 16

Duty to perform at the same level as another practitioner in the same community.

Question 17

What standard of care do doctors have?

Answer 17

Duty to perform as an average doctor based on a national standard.

Question 18

When does a breach occur?

Answer 18

When the defendant fails to meet the applicable standard of care.

Question 19

What are the factors for determining breach under the cost-benefit analysis?

Answer 19

1. ) The foreseeability of harm;
2. ) The severity of harm, AND
3. ) The burden on the defendant to prevent the harm.

Question 20

When does Res Ipsa Loquitor arise?

Answer 20

Arises when there is no direct evidence of the defendant’s negligent conduct.

Allows the trier of fact to infer that there was negligence conduct.

Question 21

What must a plaintiff prove for Res Ipsa Loquitor?

Answer 21

1. ) The type of accident would not normally occur absent negligence
2. ) The injury was caused by an agent or instrumentality within the exclusive control of the defendant, AND
3. ) The injury was not due to the plaintiff’s actions.

Question 22

When does Negligence Per Se arise?

Answer 22

when there is a statute that imposes a specific duty.

Plaintiff must be within the class of persons the statute is meant to protect

Plaintiff must suffer the type of harm the statute was meant to protect against

Defendant’s violation of the statute must be the proximate cause of plaintiff’s harm.

Question 23

What is “Actual Causation?”

Answer 23

Plaintiff must show that but-for the defendant’s actions plaintiffs injury would not have occurred.

Question 24

What is the Substantial Factor Rule?

Answer 24

Arises when there are multiple causes of the harm and each alone would have been a factual cause of the injury.

The conduct of each defendant is a cause in fact if it was a substantial cause of the injury.

Question 25

What is Alternative Causation?

Answer 25

Arises when the plaintiff’s harm is caused by multiple defendants (2-5) and each defendant’s conduct was individually tortious. The burden of proof can shift to the defendants to prove that each was not the cause in fact.

Question 26

What is Proximate Cause?

Answer 26

Plaintiff must show that the injury was a foreseeable result of the defendants conduct.

Question 27

What is an intervening proximate cause?

Answer 27

An outside force that contributes to the plaintiffs harm after the defendant’s act. If foreseeable, will not cut off defendant’s liability. If unforeseeable, it is a superseding cause and cuts off the defendant’s liability.

Question 28

What must a plaintiff prove regarding damages?

Answer 28

Plaintiff must prove actual injury, not just economic loss.

Question 29

What is the eggshell skull rule?

Answer 29

Defendant is liable for the full extent of plaintiff’s injuries, even if the extent of the harm was not foreseeable.

Question 30

Where must the plaintiff have been to claim Negligent Infliction of Emotional Distress?

Answer 30

Within the zone of danger of the threatened physical impact. Must have some physical manifestation of emotional distress.

Question 31

Can a bystander claim Negligent Infliction of Emotional Distress?

Answer 31

A by stander who is outside the zone of danger can recover IF the plaintiff 1. ) is closely related to a person harmed by the defendant’s negligence 2. ) Was present at the scene of the injury; and 3. ) Personally observed the injury.

Question 32

What are the 3 Defenses to Negligence?

Answer 32

1. ) Contributory Negligence (old rule): if the plaintiff’s negligence contributed to his harm, it was a complete bar to recovery. 2. ) Comparative Fault (Modern Rule): Pure comparative negligence (minotiry Rule) a plaintiffs recovery is reduced by the amount of the plaintiff’s fault, regardless of how at fault the plaintiff is.

Question 33

What is modified or partial comparative negligence (majority rule): plaintiff’s recover is reduced by the amount of the plaintiff’s fault, but the plaintiff cannot recover if he is more at fault than the defendant.

Answer 33

plaintiff’s recover is reduced by the amount of the plaintiff’s fault, but the plaintiff cannot recover if he is more at fault than the defendant.

Question 34

What is Assumption of Risk?

Answer 34

Plaintifkf’s recovery may be barred or reduced if she is voluntarily and knowing assumed the risk of the behavior.

Question 35

What is an Abnormally Dangerous Activity?

Answer 35

A defendant engaged in an abnormally dangerous activity is subject to strict liability for personal injuries and property damages caused by the activity A high risk of harm that is not Commonly found in the community, which has a risk that cannot be elimated with Due Care. Explosive, fumigation, disposing of hazardous waste, storing chemicals.

Question 36

What types of causation are required for a claim of an Abnormally Dangerous Activity?

Answer 36

``` Actual Cause (but for defendant’s act) Proximate cause (foreseeable) ```

Question 37

How does common law deal with Wild Animals?

Answer 37

Strict liability applies to wild animals Also applies to domestic animals if the owner knows or has reason to know if a dangerous propensity. Plaintiff must also show causation and damages.

Question 38

What is strict products liability?

Answer 38

Defendant is in the business of selling commercial product may be strictly liable for a defective product causing foreseeable injuries to a plaintiff. Absolute Duty - manufacturer, distributor, and retailer.

Question 39

When is a product defective?

Answer 39

A product is defective when, at the time of the sale or distribution, it contains a manufacturing defect, a design defect, or inadequate instructions or warnings (i.e., failure to warn).

Question 40

What are the two types of defects?

Answer 40

1. ) Manufacturing Defect | 2. ) Design Defect

Question 41

What is a manufacturing defect?

Answer 41

1. ) A deviation from what the manufacturer intended the product to be that causes harm to the plaintiff ‘ 2. ) The test is whether the product conforms to the defendant’s own specifications

Question 42

What is a design defect?

Answer 42

Consumer-expectation test—plaintiff must prove that the product is dangerous beyond the expectation of an ordinary consumer Risk-utility test—plaintiff must prove that a reasonable alternative design that is economically feasible was available to defendant, and failure to use that design rendered the product unreasonably dangerous.

Question 43

What do you look for with defects?

Answer 43

Look for facts in the exam question about the availability of alternative designs and the cost of these alternative designs.

Question 44

What is a failure to warn? Regarding products liability

Answer 44

Failure to Warn Exists if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which could have been reduced or avoided by providing reasonable instructions or warnings

Question 45

What do you look for in the facts regarding a failure to warn by the defendant?

Answer 45

That they warned about something, but the warning was insufficient to warn about the type of harm that actually occurred.

Question 46

What is required for actual causation regarding products liability?

Answer 46

The product must have been defective when it left defendant’s control and the defect was the actual cause of the harm.

Question 47

What is required for proximate causation regarding products liability?

Answer 47

The defect causing the plaintiff’s injuries occurred when the product was being used in an intended or reasonably foreseeable way.

Question 48

What types of injuries must occur to receive damages from product defects?

Answer 48

Plaintiff must suffer personal injury or property damages

Question 49

What are the defenses to product liability actions?

Answer 49

1.) Contributory fault: the plaintiffs contributory fault is generally not a defense to a strict products liability action If the plaintiff knows of the defect and unreasonably uses the product anyway, contributory fault may be a defense to bar or reduce recovery.

Question 50

Is the analysis the same in a Negligent products liability as it is in a regular products liability?

Answer 50

YES.

Question 51

What is an express warranty? Regarding products liabilities.

Answer 51

A promise or guarantee made by the defendant about the product.

Question 52

What is the implied warranty of merchantability regarding products liability?

Answer 52

A product that is sold to impliedly warranted to be reasonably useful and safe for average use.

Question 53

What is the implied warranty of fitness for a particular purpose? Regarding products liability

Answer 53

If a seller knows or has reason to know of a particular purpose for which some item is being purchased by the buyer, the seller is guaranteeing that the item is fit for that particular purpose.

Question 54

When may a plaintiff bring an action for defamation?

Answer 54

If the defendant’s language is: 1. ) of or concerning the plaintiff 2. ) is published to a 3rd party who understands its defamatory nature; AND 3. ) Damages the plaintiff’s reputation.

Question 55

When is language defamatory?

Answer 55

When the language diminishes the respect, esteem, or goodwill towards plaintiff.

Question 56

What kind of statement is libel?

Answer 56

Written statement, damages generally presumed

Question 57

What is slander?

Answer 57

Oral statements - damages are not presumed.

Question 58

What is slander per se?

Answer 58

Damages are presumed when statements involve professional reputation, disease, crimes of moral turpitude, or unchaste behavior.

Question 59

When do Constitutional Defamation requirements apply?

Answer 59

1. ) The plaintiff is a public official, or public figure, OR 2. ( The plaintiff is a private individual, but the statement involves a matter of public concern.

Question 60

What is an absolute defense to defamation?

Answer 60

Truth

Question 61

What is the First Constitutional Requirement?

Answer 61

Falsity. Plaintiff must prove statement is FALSE, and If plaintiff is a public official or figure, must also prove that the defendant acted with actual malice

Question 62

What is malice, concerning defamation?

Answer 62

defendant either had knowledge that the statement was false or acted with reckless disregard as to the truth or falsity of the statement