Torts Flashcards

Question

Public Disclosure of Private Facts

Answer 1

This wrong involves public disclosure of private information about plaintiff. The public disclosure must be highly offensive to a reasonable person of ordinary sensibilities. Liability may attach even though the actual statement is true.

Answer 2

Prima facie case:
(i) Misrepresentation of a material fact. Silence is generally not enough; one must make affirmative misrepresentations.
(ii) Scienter, when a D made the statement, she knew or believed it was false.
(iii) Intent to induce P to act or refrain from acting in reliance upon the misrepresentation.
(iv) Causation.
(v) Justifiable reliance, and
(vi) Damages.

Answer 3

Prima facie case:
(i) misrepresentation by defendant in a business or professional capacity;
(ii) breach of duty toward a particular plaintiff;
(iii) causation;
(iv) justifiable reliance; and
(v) damages.

Answer 4

Prima facie case:
(i) existence of a valid contractual relationship between plaintiff and a third party or valid business expectancy of plaintiff;
(ii) defendant's knowledge of the relationship or expectancy;
(iii) intentional interference by defendant inducing a breach or termination of the relationship or expectancy and
(iv) damages.

Answer 5

Prima facie case:
(i) institution of criminal proceedings against plaintiff [although this has been extended to civil in some states];
(ii) termination in plaintiff's favor;
(iii) absence of probable cause for prior proceedings
(insufficient facts for a reasonable person to believe that plaintiff was guilty);
(iv) improper purpose; and
(v) damages.

Answer 6

Prima facie case:
(i) wrongful use of process for an ulterior purpose, and
(ii) definite act or threat against plaintiff in order to accomplish an ulterior purpose.

Answer 7

(i) a duty on the part of defendant to conform to a specific standard of conduct for protection of plaintiff against an unreasonable risk of injury;
(ii) a breach of that duty by defendant;
(iii) the breach is the actual and proximate cause of plaintiff's injury; and
(iv) damage.

Answer 8

Cardozo View
(Majority) ' Foreseeable Zone of Danger -> a distant plaintiff can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her under the circumstances. Andrews View
(Minority) ' Everyone is Foreseeable -> a distant plaintiff may establish the existence of a duty extending from defendant to her by showing that defendant breached a duty owed to a prior plaintiff.

Answer 9

A rescuer is a foreseeable plaintiff where defendant negligently put himself or a third person in peril
(danger invites rescue). However, firefighters and police officers may be barred by the 'firefighter's rule' from recovering for injuries caused by the risks of a rescue.

Answer 10

A third party for whose economic benefit a legal or business transaction was made may be a foreseeable plaintiff.

Answer 11

The reasonable person standard is an objective standard. A defendant's mental deficiencies and inexperience are not taken into account. However, the reasonable person is considered to have the same physical characteristics as defendant.

Answer 12

A professional is required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities. Medical specialists will be held to a national standard of care.

Answer 13

Children are held to the standard of a child of like age, education, intelligence, and experience. This is a subjective test. A child under four is usually without the capacity to be negligent. Children engaged in adult activities may be required to conform to an adult standard of care.

Answer 14

Common carriers and innkeepers are held to a very high degree of care. For the higher standard to apply, the plaintiff must be a passenger or guest.

Answer 15

A guest in an automobile is owed a duty of ordinary care. In the few guest statute states, one is liable to nonpaying passengers only for reckless tortious conduct.

Answer 16

(a) Duties owed by Bailee:
(i) for a sole benefit of the bailor bailment, there is a low standard of care;
(ii) for a sole benefit of the bailee bailment, there is a high standard of care; and
(iii) for a mutual benefit bailment, there is an ordinary care standard.
(b) Duties owed by Bailor: For a sole benefit of the bailee bailment, the bailor must inform the bailee of known, dangerous defects in the chattel. For a bailment for hire, the bailor must inform the bailee of chattel defects of which he is or should be aware.

Answer 17

A defendant must act as a reasonable person would under the same emergency conditions. The emergency is not to be considered, however, if its of defendant's own making.

Answer 18

There is no duty to protect one off the premises from natural conditions on the premises; however, there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land. Also, one must carry on activities on the premises so as to avoid unreasonable risk of harm to others off the premises. [In urban areas, the owner/occupier is liable for damage caused off the premises by tress on the premises
(e.g. falling branches). This has been an exam favorite in recent years].

Answer 19

No duty is owed to an undiscovered trespasser. As to discovered or anticipated trespassers, the landowner must:
(i) warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm, and
(ii) use reasonable care in the exercise of active operations on the property. Easement and license holders owe a duty of reasonable care to trespassers.

Answer 20

Most courts impose on a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property. Plaintiff must show:
(i) a dangerous condition on the land that the owner is or should be aware of,
(ii) the owner knows or should know children frequent the vicinity of the condition,
(iii) the condition is likely to cause injury, and
(iv) the expense of remedying the situation is slight compared with the magnitude of the risk. [For liability to attach, the four requirements must be shown. The child does not have to be attracted onto the land by a dangerous condition].

Answer 21

A licensee is one who enters onto the land with the possessor's permission for her own purpose or business, rather than for possessor's benefit. The possessor has a duty to
(i) warn of dangerous conditions
(natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover, and
(ii) exercise reasonable care in the conduct of active operations on the property. The possessor has not duty to inspect or repair
(Remember: social guests are considered licensees.)

Answer 22

Invitees enter onto the land in response to an invitation by the landowner
(i.e., they enter for a purpose connected with the business of the landowner or enter as members of the public for a purpose for which the land is held open to the public). The landowner or occupier owes the same duties owed to licensees plus a duty to make reasonable inspections to discover nonobvious dangerous conditions and, thereafter, make them safe. One will lose invitee status if she exceeds the scope of the invitation.

Answer 23

A landowner who permits the general public to use his land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

Answer 24

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. [If the guest of a tenant is injured, the landlord may be liable as lessor of the premises. But don't stop there ' remember that the tenant may also be liable to the guest because of the tenant's status as the owner/occupier of the premises.]

Answer 25

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

Answer 26

A statute's specific duty may replace the more general common law duty of due care 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, and
(iv) the statute was designed to prevent the type of harm suffered by plaintiff. Under the majority view, an unexcused statutory violation is negligence per se, a conclusive presumption of duty and breach of duty. However, violation of some statutes may be excused where compliance would cause more danger than violation or where compliance would be beyond defendant's control.

Answer 27

The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The plaintiff usually must satisfy two requirements to prevail:
(i) the plaintiff must be within the zone of danger, and
(ii) the plaintiff must suffer physical symptoms from the distress. Special situations:
(i) bystander not in the zone of danger seeing injury to another, and
(ii) special relationships between plaintiff and defendant.

Answer 28

(i) Assumption of Duty by Acting: One may assume a duty by acting
(e.g. once D undertakes to aid, he must do so with reasonable care).
(ii) Peril Due to Defendant's Conduct: One has a duty to assist someone he has negligently or innocently placed in peril.
(iii) Special Relationship Between Parties: A special relationship between parties may create a duty to act. E.g. parent-child, innkeeper, common carrier, shopkeeper.
(iv) Duty to Control Third Persons: An affirmative duty may be imposed if one has actual ability and authority to control a person's actions.

Answer 29

Where a defendant's conduct falls short of that level required by the applicable standard of care owed to the plaintiff, she has breached her duty.

Answer 30

Custom or usage may be used to establish standard of care, but does not control the question of whether certain conduct amounted to negligence.

Answer 31

Existence of a duty owed to plaintiff and breach thereof may be established as a matter of law by proof that defendant violated an applicable statute
('negligence per se'). Causation and damages must still be established by plaintiff.

Answer 32

The doctrine of res ipsa loquitur requires plaintiff to show that
(i) the accident causing the injury is a type that would not normally occur unless someone was negligent, and
(ii) the negligence is attributable to defendant. Where res ipsa loquitur is established, a plaintiff has made a prima facie case and no directed verdict may be given for defendant.

Answer 33

(i) Deny defendant's motion for directed verdict if plaintiff has established res ipsa loquitur or presented some other evidence of breach of duty;
(ii) Grant defendant's motion if plaintiff has failed to establish res ipsa loquitur and failed to present some other evidence of breach of duty. Occasionally, plaintiff may also move for directed verdict. Plaintiff's motion should always be denied except in the rare case where plaintiff has established negligence per se through violation of an applicable statute and there are no issues of proximate cause.

Answer 34

Plaintiff must establish that defendant's conduct was the cause in fact of her injury. Several tests exist:
(i) 'But for' Test: Act or omission is the cause in fact of an injury when injury would not have occurred but for the act.
(ii) Substantial Factor Test: where several causes bring about injury, and any one alone would have been sufficient, defendant's conduct is the cause in fact if it was a substantial factor in causing the injury.
(iii) Alternative Causes Approach: Applies when there are two acts, only one of which causes injury, but it is not known which one. The burden of proof shifts to defendants, and each must show that his negligence is not the actual cause.

Answer 35

The doctrine of proximate causation is a limitation on liability and deals with liability or nonliability for unforeseeable consequences of one's acts. As such, a defendant is generally liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. This is a foreseeability test.

Answer 36

In a direct cause case, where there is an uninterrupted chain of events from the negligent act to plaintiff's injury, defendant is liable for all foreseeable harmful results, regardless of the unusual manner in which they arose or the unusual timing of cause and effect.

Answer 37

(i) Defendant is liable for foreseeable results caused by foreseeable intervening forces;
(ii) Defendant is usually liable for foreseeable results caused by unforeseeable intervening forces [unless intervening force is crime or intentional tort];
(iii) Defendant is not liable for unforeseeable results caused by foreseeable intervening forces;
(iv) Defendant is not liable for unforeseeable results caused by unforeseeable intervening forces

Answer 38

(i) subsequent medical malpractice;
(ii) negligence of rescuers;
(iii) efforts to protect the person or property of oneself or another;
(iv) injuries caused by another reacting to defendant's actions;
(v) subsequent diseases caused by a weakened condition; and
(vi) subsequent accident substantially caused by the original injury

Answer 39

The following are foreseeable if defendant's negligence increased the risk of harm from these forces:
(i) negligent acts of third persons;
(ii) crimes and intentional torts of third persons, and
(iii) acts of God.

Answer 40

In all cases, defendant takes his plaintiff as he finds him; i.e., the defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable. This is known as the 'eggshell-skull plaintiff' rule.

Answer 41

Plaintiff is to be compensated for all his damages, both economic damages and noneconomic damages. A plaintiff suffering physical injury also may recover damages for any resulting emotional distress.

Answer 42

The measure of damage is the reasonable cost of repair or, if the property is nearly destroyed, its fair market value at the time of the accident.

Answer 43

Plaintiff may recover punitive damages if defendant's conduct is 'wanton and willful,' reckless, or malicious.

Answer 44

Nonrecoverable items include:
(i) interest from the date of damage in a personal injury action, and
(ii) attorneys' fees.

Answer 45

As in all cases, plaintiff has a duty to take reasonable steps to mitigate damages.

Answer 46

Damages are not reduced just because plaintiff received benefits from other sources
(e.g. health insurance).

Answer 47

Contributory negligence is negligence on the party of the plaintiff that contributes to her injuries. May be used as a defense to negligence proved by a violation of a statute, but not as a defense to intentional torts. Further, as a general rule, contributory negligence of a third party will be imputed to a plaintiff only when the relationship between the third party and plaintiff is such that a court could find the plaintiff vicariously liable for the third party's negligence. The application of contributory negligence is subject to an exception for the 'last clear chance'. Bars ''s recovery.

Answer 48

Under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence.
(i) Helpless Peril ' In many states, where the plaintiff is in helpless peril, defendant will be liable if he knew or should have known of plaintiff's predicament.
(ii) Inattentive Peril ' In inattentive peril situations, defendant must actually have known of plaintiff's predicament.
(iii) Prior Negligence Cases ' Defendant must have been able, but failed, to avoid harming plaintiff at the time of the accident. If Defendant's only negligence occurred earlier, the doctrine will not apply.

Answer 49

Plaintiff may be denied recovery if she assumed the risk of any damage caused by defendant's act. Plaintiff must have
(i) known of the risk and
(ii) voluntarily proceeded in the face of the risk. May be expressly or impliedly assumed. Assumption of risk is not a defense to intentional torts, but it is a defense to wanton and willful miscounduct.

Answer 50

Knowledge may be implied where the risk is one that an average person would clearly appreciate. Plaintiff may not be said to have assumed the risk where there is no available alternative to proceeding in the face of the risk or in situations involving fraud, force, or an emergency.

Answer 51

In comparative negligence states, the trier of fact weighs plaintiff's negligence and reduces damages accordingly. A majority of states have adopted partial comparative negligence, which still bars plaintiff's recovery if his negligence was more serious than defendant's negligence. State that have adopted pure comparative negligence allow recover no matter how great plaintiff's negligence was.

Answer 52

For strict liability, the following elements must be shown:
(i) the nature of the defendant's activity imposed an absolute duty to make safe;
(ii) the dangerous aspect of the activity was the actual and proximate cause of the plaintiff's injury; and
(iii) the plaintiff suffered damage to person or property.

Answer 53

An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals.

Answer 54

An owner is strictly liable to licensees and invitees for injuries caused by wild animals
(even those kept as pets).

Answer 55

An owner is not strictly liable for injuries caused by domestic animals unless he has knowledge of that particular animal's dangerous propensities that are not common to the species.

Answer 56

Strict liability will generally not be imposed in favor of trespassers in the absence of the owner's negligence. However, a landowner may be liable on intentional tort grounds for injuries inflicted by vicious watch dogs.

Answer 57

Courts generally impose two requirements for finding an activity to be abnormally dangerous:
(i) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and
(ii) the activity is not a matter of common usage in the community.

Answer 58

The duty owed is the absolute duty to make safe the normally dangerous characteristic of the animal or activity. It is owed to all foreseeable plaintiffs.

Answer 59

In contributory negligence states, contributory negligence is no defense if plaintiff has failed to realize the danger or guard against it. It is a defense if plaintiff knew of the danger and his unreasonable conduct was the very cause of the harm from the wild animal or unreasonably dangerous activity. Assumption of the risk is a good defense to strict liability. Most comparative negligence states apply their comparative negligence rules to strict liability cases.

Answer 60

There are five theories of liability that a plaintiff may use:
(i) intent;
(ii) negligence;
(iii) strict liability [easiest to prove];
(iv) implied warranties of merchantability and fitness for a particular purpose, and
(v) representation theories
(express warranty and misrepresentation).

Answer 61

If a product emerges from manufacturing different and more dangerous than the products that were made properly, it has a manufacturing defect. For a manufacturing defect, defendant will be liable if plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect.

Answer 62

When all products of a line are the same but have dangerous propensities, they may be found to have a design defect. For a design defect, plaintiff usually must show that the defendant could have made the product safer without serious impact on the product's price or utility.

Answer 63

A product may be defective as a result of the manufacturer's failure to give adequate warnings as to the risks involved in using the product that may not be apparent to users. For prescription drugs and medical devices, warnings given to learned intermediaries will usually suffice in lieu of warnings to the patient.

Answer 64

A product's noncompliance with government safety standards establishes that it is defective, while compliance with safety standards is evidence ' but not conclusive ' that the product is not defective.

Answer 65

Defendant will not be held liable for dangers not foreseeable at the time of marketing.

Answer 66

Manufacturers will not be held liable for some dangerous products if the danger is apparent and there is no safer way to make the product.

Answer 67

The existence of the defect when the product left defendant's control will be inferred if the product moved through normal channels of distribution.

Answer 68

Defendant will be liable to anyone injured by an unsafe product if defendant intended the consequences or knew that they were substantially certain to occur. If intent is present, the most likely tort is battery. Privity is not required, so any injured plaintiff can sue. In addition to compensatory damages, punitive damages are available. The defenses available are those in other intentional tort cases.

Answer 69

Plaintiff must show
(i) duty,
(ii) breach,
(iii) actual and proximate cause, and
(iv) damages. A duty of care is owed to any foreseeable plaintiff. Privity is no longer required, so any foreseeable plaintiff can sue. Commercial suppliers such as manufacturers, wholesalers, and retailers can be held liable. Breach of duty is shown by
(i) negligent conduct of defendant leading to
(ii) the supplying of a defective product. An intermediary's negligent failure to discover a defect does not supersede the original manufacturer's negligence unless the intermediary's conduct exceeds ordinary foreseeable negligence.

Answer 70

A plaintiff must show
(i) a strict duty owed by a commercial supplier of a product;
(ii) production or sale of a defective product,
(iii) actual and proximate cause; and
(iv) damages. Privity not required. Any commercial supplier can be held liable. Plaintiff must show the product is defective in a manner that makes the product dangerous beyond the expectation of an ordinary consumer.

Answer 71

(i) Merchantability refers to whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used; and
(ii) 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 the buyer is relying on the seller's skill and judgment in selecting the goods. Generally buyer, family, household, and guests can sue for personal injuries. Personal injury and property damages, and purely economic loss, are recoverable.

Answer 72

(i) Express Warranty, any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty. Any consumer, user, or bystander can sue.
(ii) Misrepresentation of Fact, a seller will be liable for misrepresentations of fact where:
(1) the statement was of a material fact concerning quality or uses of goods, and
(2) the seller intended to induce reliance by the buyer in a particular transaction. Justifiable reliance is required.

Answer 73

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

Answer 74

Substantial interference is interference that is offensive, inconvenient, or annoying to the average person in the community.

Answer 75

To establish unreasonable interference, the severity of the inflicted injury must outweigh the utility of defendant's conduct.

Answer 76

Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community.

Answer 77

It is generally not a bar to plaintiff's action that the nuisance pre-existed plaintiff's right unless plaintiff came to the nuisance for the sole purpose of bringing a harassing lawsuit.

Answer 78

Vicarious liability is liability that is derivatively imposed. The basic situations of vicarious liability are:
(1) Respondeat Superior
(2) Independent Contractor Situations
(3) Partners and Joint Venturers
(4) Automobile Owners for Driver
(5) Bailor for Bailee
(6) Parent for Child
(7) Tavernkeepers

Answer 79

A master/employer will be vicariously liable for tortious acts committed by her servant/employee if the tortious acts occur within the scope of the employment relationship. Intentional torts are usually held outside the scope of employment unless:
(1) force is authorized in employment,
(2) friction is generated by the employment, or
(3) the employee is furthering the business of the employer. Employers may be liable for their own negligence by negligently selecting or supervising their employees
(not vicarious liability).

Answer 80

In general, a principal will not be vicariously liable for tortious acts of her agent if the agent is an independent contract. Two broad exceptions exist:
(i) the independent contractor is engaged in inherently dangerous activities, and
(ii) the duty, because of public policy considerations, is simply nondelegable. The employer may be liviable for her own negligence in selecting or supervising the independent contractor
(not vicarious liability).

Answer 81

Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture.

Answer 82

The general rule is that an automobile owner is not vicariously liable for the tortious conduct of another person driving his automobile. In some jurisdictions, courts employ theories other than vicarious liability to hold an automobile owner liable.

Answer 83

In many states, the owner is liable for tortious conduct of immediate family or household members who are driving with the owner's express or implied permission.

Answer 84

A number of states have now gone further by imposing liability on the owner for damage caused by anyone driving with the owner's consent.

Answer 85

An owner may be liable for her own negligence in entrusting the car to a driver.

Answer 86

Under the general rule, the bailor is not vicariously liable for the tortious conduct of his bailee. However, the bailor may be liable for her own negligence in entrusting the bailed object
(negligent entrustment).

Answer 87

A parent is not vicariously liable for the tortious conduct of the child at common law. Courts may impose vicarious liability, however, if the child committed a tort while acting as the agent for the parents. Also, the parents may be held liable for their own negligence in allowing the child to do something.

Answer 88

Common Law: No liability was imposed on vendors of intoxicating beverages for injuries resulting from the vendee's intoxication, whether the injuries were sustained by the vendee or by a third person as a result of vendee's conduct. Modern Law: Many states have enacted Dramshop Acts. Such acts usually create a cause of action in favor of any third person injured by the intoxicated vendee.

Answer 89

The rule of contribution allows a defendant who pays more than his share of damages under joint and several liability to have a claim against other jointly liable parties for the excess.

Answer 90

Indemnity involves shifting the entire loss between or among tortfeasors. Indemnity is available in the following circumstances:
(i) by contract,
(ii) in vicarious liability situations,
(iii) under strict products liability, and
(iv) in some jurisdictions, where there has been an identifiable difference in degree of fault.

Answer 91

Most comparative negligence states have adopted a comparative contribution system where contribution is in proportion to the relative fault of the various defendants. This approach also supplants indemnification rules based on identifiable differences in degree of fault.

Answer 92

Survival acts allow one's cause of action to survive the death of one or more of the parties. The acts apply to actions involving torts to property and torts resulting in personal injury. However, torts invading intangible personal interests
(e.g. defamation, invasion of right of privacy, malicious prosecution) expire upon the victim's death.

Answer 93

Wrongful death acts grant recovery for pecuniary injury resulting to the spouse and next of kin. A decedent's creditors have no claim against the amount awarded. Recovery is allowed only to the extent that the deceased could have recovered in an action had he lived. Hence, the decedent's contributory negligence reduces the wrongful death recovery in comparative negligence states. Similarly, a potential beneficiary's contributory negligence reduces her share of the recovery in comparative negligence states.

Answer 94

Husband-Wife: Either spouse may bring an action for indirect interference with consortium and services caused by defendant's intentional or negligent tortious conduct against the other spouse. Parent-Child: A parent may maintain an action for loss of a child's services as a result of defendant's tortious conduct, whether intentional or negligent. A child, however, has no action in most states. Actions such interference are derivative. Hence, any defense that would reduce or bar recovery by the injured family member operates in the same capacity in a tortious interference with family relationship action.

Answer 95

Under the traditional view, one member of a family unit could not sue another in tort for personal injury. Today, most states have abolished husband-wife immunity. A slight majority have also abolished parent-child immunity. Those that retain parent-child immunity do not apply it in
(i) cases alleging intentional tortious conduct, or
(ii) automobile accident cases to the extent of insurance coverage.

Answer 96

Under the Federal Tort Claims Act, the United States has waived immunity for tortious acts. However, immunity will still attach for
(i) assault,
(ii) battery,
(iii) false imprisonment,
(iv) false arrest,
(v) malicious prosecution,
(vi) abuse of process,
(vii) libel and slander,
(viii) misrepresentation and deceit, and
(ix) interference with contract rights. Immunity is not waived for acts that are characterized as discretionary as distinguished from those acts terms ministerial.

Answer 97

Most states have substantially waived their immunity. Where municipal immunity has been abolished, the public duty rule provides that a duty owed to the public at large is not owed to any particular citizen absent a special relationship between the governmental body and the citizen. Where municipal immunity still exists, contrast governmental functions
(functions that could only be performed adequately by the government) and proprietary functions
(functions that might as well have been provided by a private corporation). Courts limit application of sovereign immunity by not granting it for proprietary functions.

Answer 98

Public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose. Liability attaches, however, for ministerial acts.

Torts Flashcards

(122 cards)