Torts Flashcards

Question

What is the difference between the tort of conversion and trespass to chattels.

Answer 1

The degree of interference. Significant--conversion. Minor--trespass to chattels. The longer the withholding period and the more extensive the use the more serious it is.

Answer 2

The remedies: in a conversion the plaintiff is entitled to recover the full value of the asset. Trespass to chattels: cost to repair. This is why it is sometimes said that conversion is a forced sale--the defendant has to pay the full price for the object. You intentionally broke it you bought it.

Answer 3

1. Consent. 2. Protective privileges 3. Necessity doctrines.

Answer 4

A defense to all 7 intentional torts. Must determine if plaintiff has legal capacity. Only a person with legal capacity can give consent. This rule is the opposite of the rule as to who can be held liable for an intentional tort. So the victim is the one who must consent. A drunk will be liable if he hits you, but you will be liable if you hit a drunk who consents. Children can consent to age appropriate behavior. Two boys agree to wrestle with one another--valid consent. Cannot consent to surgery. As children get older and older the range of things they can consent to is more and more.

Answer 5

1. Express consent. 2. Implied consent.

Answer 6

a declaration giving the defendant permission to behave in a certain way.

Answer 7

If obtained through duress or fraud. Fraud does not need to involve an affirmative lie. Can involve a concealment. Example: casual sexual hookup--but one doesn't share the fact that they have a disease. No consent.

Answer 8

1. Implied consent from custom or usage. example--if you go to the barber it is assumed that you will get your hair cut. When you play football you consent to getting pushed down. 2. Implied consent based on defendant's reasonable interpretation of plaintiff's objective conduct. We are all allowed to read the situation and make common sense inferences. Body language consent. This doctrine of consent is based on reasonableness.

Answer 9

All consent, express or implied, has a scope. If the defendant exceeds the scope, the defendant is liable for the tort.

Answer 10

1. Self defense. 2. Defense of others. 3. Defense of property.

Answer 11

1. Imminence. When responding to a threat that is imminent or in progress. Cannot be a threat of something that is going to happen in the future or has already happened in the past. Must act in heat of moment. Key point--no revenge. 2. Must have reasonable belief that the threat is genuine. Reasonable mistake does not defeat the privilege. 3. Can only use the amount of force necessary to respond to the threat involved. If you use excessive force, that is a tort. Can't stick a knife in someone who is about to slap you. Can use deadly force if someone is about to kill another person (probably gun). But deadly force is never allowed to protect property. So therefore cannot use deadly mechanical device either.

Answer 12

A person may interfere with the real property of another where the interference is reasonable and apparently necessary to avoid threatened injury from a natural or other force and where the threatened injury is substantially more serious than the invasion that is undertaken to avert it. Only apply to the property torts: trespass to land, trespass to chattels, conversion. 2 doctrines: public necessity defense and private necessity defense.

Answer 13

Where the act is for the public good, the defense is absolute. The defendant invades the plaintiff's property in an emergency to protect the community as a whole or a significant group of people. What you will see is a fact pattern where there is crisis in progress, like a fire or flood. Or a crazed gunman. A hero comes in--someone who can walk away and doesn't have to get involved. They take some step to mitigate the crisis, but he must use something that belongs to someone else and he damages or destroys it. Policy: don't want the savior of the city to hesitate. Also, property can be insured.

Answer 14

Where the act is solely to benefit a limited number of people, the defense is qualified; I.e., the actor must pay for any injury he causes. Exception: the defense is absolute if the act is to benefit the owner of the land. Defendant invades plaintiff's property to protect an interest of his own. Can be to protect own physical safety or to protect his property.

Answer 15

1. In a private necessity fact pattern the defendant remains liable to actual damage done to the property. Actual damages (compensatory damages). 2. Private necessity defendant has no liable for nominal or punitive damages. 3. As long as the emergency continues, the plaintiff property owner cannot throw the defendant off his land. Cannot eject, evict, or expel. Have a right of sanctuary.

Answer 16

1. DEFAMATORY LANGUAGE on the part of the defendant; 2. The defamatory language must be "OF OR CONCERNING" THE PLAINTIFF, I.e., it must identify the plaintiff to a reasonable reader, listener, or viewer; 3. PUBLICATION of the defamatory language by the defendant to a third person; and 4. DAMAGE TO THE REPUTATION of the plaintiff Where the defamation refers to a public figure or involves a matter of public concern, two additional elements must be proved as part of the prima facie case: 5. FALSITY of the defamatory language; and 6. FAULT on defendants part.

Answer 17

Defamatory language is language that tends to adversely affect one's reputation. This may result from impeaching the individual's honesty, integrity, virtue, sanity, or the like. Minor rules: 1. name calling is not defamatory. 2. Generally need a statement that is a representation of fact.

Answer 18

The plaintiff must establish that a REASONABLE reader, listener, or viewer should understand that the defamatory statement referred to the plaintiff.

Answer 19

1. Individual: Any living person may be defamed. Defamation of a deceased person is not actionable. Test is alive at the time the statement is made. 2. Corporation, Unincorporated Association, and Partnership: In a limited sense may also be defamed, e.g., by remarks as to its financial condition, honesty, integrity, etc.

Answer 20

A statement is not actionable until there has been a "publication." The publication is satisfied when there has been a COMMUNICATION TO A THIRD PERSON WHO UNDERSTOOD IT. Note: must be to one person who is not the plaintiff because the harm must be harm to reputation. The more people the defendant tells this to the more harm and the more damages.But in terms of whether you have enough to get to a jury, it is enough that the statement was shared with somebody who is not the plaintiff. The publication does not have to be deliberate. It can be negligent.

Answer 21

In ascertaining whether this element of the plaintiff's prima facie case has been satisfied, it may be necessary to distinguish between libel and slander. The burden of proof as to damages (to plaintiff's reputation) may depend on this distinction.

Answer 22

Libel is a defamatory statement recorded in WRITING OR some OTHER PERMANENT FORM. A libel may also be recorded by radio or television in some circumstances (most courts regardless of whether it was scripted).

Answer 23

Slander is SPOKEN DEFAMATION. It is to be distinguished from libel in that the defamation is in less permanent and less physical form.

Answer 24

1. Business or Profession; 2. Loathsome disease; 3. Crime involving Moral Turpitude; 4. Unchastity of a Woman

Answer 25

1. Consent. 2. Truth: the statement that was made is factually accurate. Because it is an affirmative defense the defendant bears the burden of proof. 3. Affirmative privileges: absolute and qualified.

Answer 26

Who the defendant is: 1. spouses communicating with one another; 2. officers of the three branches of government engaged in official duties (most important is judicial area--includes lawyers and witnesses); 3. members of the media for reports of public proceedings.

Answer 27

Why it was said. A qualified privilege arises when there is a public interest in encouraging candor. Open ended test: case by case. Letters of recommendation or other forms of reference. A reference is only useful if it is candid. Statements made to police: social interest in promoting candor.

Answer 28

1. the defendant must speak in good faith (reasonable belief in the truth of the statement); 2. must confine yourself to relevant matters.

Answer 29

When a defendant's statement relates to a matter of public concern (general interest to the population at large).

Answer 30

Plaintiff obligated to prove 2 extra elements: 1. statement is false--presumes statement is true; 2. fault--proof that defendant made the statement not in good faith If the defendant is a public figure, fault can only be shown if knew that statement was false or was reckless in investigating the truth of the statement. Also known as malice.

Answer 31

1. Appropriation; 2. Intrusion; 3. False Light; 4. Disclosure

Answer 32

Only one element need be proved: UNAUTHORIZED USE by defendant of plaintiff's picture or name for defendant's COMMERCIAL ADVANTAGE. Example: cereal manufacturer puts photo of star athlete on cereal box without permission.

Answer 33

1. ACT OF PRYING OR INTRUDING on the affairs or seclusion of the plaintiff by the defendant; 2. The intrusion is something that would be HIGHLY OFFENSIVE TO A REASONABLE PERSON; and 3. the thing to which there is an intrusion or prying is "PRIVATE." Examples: electronic surveillance; to peer in someone's window or to eavesdrop. NOTE: 1. plaintiff must be in a place where you have a reasonable expectation of privacy (clearly have in own home, probably in car with respect to certain things and not to others, probably in hotel room if hotel videotaping you. 2. no requirement that the defendant enter upon the plaintiff's property in order to have an intrusion--telescope looking in neighbor's window.

Answer 34

1. Publication of FACTS about plaintiff by defendant placing plaintiff in a FALSE LIGHT in the public eye; 2. The "false light" is something that would be HIGHLY OFFENSIVE TO A REASONABLE PERSON under the circumstances; and 3. MALICE on the part of defendant where the published matter is in the PUBLIC INTEREST.

Answer 35

1. Publication or public disclosure by defendant of PRIVATE information about the plaintiff; and 2. The matter made public is such that its disclosure would be HIGHLY OFFENSIVE TO A REASONABLE PERSON. Exam caution: 1. newsworthiness exception. 2. Facts in question must be truly private and intimate in order to have a cause of action. In bar exam they will often have a blabbermouth carry information from one social circle to another: Pete is a 24 year old man who is gay and is out with family and friends but not at work. Someone tells the the other employees that he's gay. No cause of action. Dual life or spheres of life fact pattern.

Answer 36

1. Consent; 2. The defamation privileges are defenses for false light claims and disclosure claims.

Answer 37

1. The existence of a DUTY on the part of the defendant TO CONFORM TO A SPECIFIC STANDARD OF CONDUCT for the protection of the plaintiff against an unreasonable risk of injury; 2. BREACH of that duty by the defendant; 3. That the breach of duty by the defendant was the ACTUAL AND PROXIMATE CUASE of the plaintiff's injury; and 4. DAMAGE to the plaintff's person or property.

Answer 38

A general duty of care is imposed on all human activity. When a person engages in an activity, he is under a legal duty to act as an ORDINARY, PRUDENT, REASONABLE PERSON in that circumstance by taking precautions against creating unreasonable risks of injury to other persons. No duty is imposed on a person to take precautions against events that cannot be reasonably foreseen. In addition, certain other facts such as the status of the parties (e.g., owners or occupiers of land) or statutes may limit or extend this general duty.

Answer 39

General rule: Foreseeable Plaintiffs. You owe a duty to foreseeable victims.

Answer 40

1. The Problem: The "unforeseeable" plaintiff problem arises when defendant breaches a duty to one plaintiff and also causes injury thereby to a second plaintff to whom a foreseeable risk of injury might or might not have been created at the time of the original negligent act. Example: An employee of Defendant negligently aided a passenger boarding the train, causing the passenger to drop a package. The package exploded, causing a scale a substantial distance away to fall upon a second passenger.

Answer 41

A rescuer is a foreseeable plaintiff as long as the rescue is not wanton; hence, defendant is liable if he negligently puts himself or a third person in peril and plaintiff is injured in attempting a rescue. Note, however, the firefighter's rule may bar firefighters and police officers, on public policy of assumption of risk grounds, from recovering for injuries caused by the risk of rescue. Danger invites rescue. When someone is very distant at the beginning of the story, but they come to the aid of someone, you should have seen that there would be a rescuer.

Answer 42

Basic standard: The reasonable person in a similar circumstance. Defendant's conduct is measured against the reasonable, ordinary prudent person.

Answer 43

A majority of courts take the view that a child is required to conform to the standard of care of a child of LIKE AGE, EDUCATION, INTELLIGENCE, AND EXPERIENCE. This permits a SUBJECTIVE evaluation of these factors. 1. Minimum age for Capacity to be Negligent: There is a minimum age for which it is meaningful to speak of a child being capable of conforming his conduct to a standard of care. Most courts, however, do not fix this age at any arbitrary figure. Each case is dealt with in terms of whether there is evidence that the individual child --plaintiff or defendant-- has the experience, intelligence, maturity, training, or capacity to conform his conduct to a standard of care. It is unlikely, nonetheless, that a court would view a child BELOW THE AGE OF FOUR as having the capacity to be negligent. Or, to put it another way, it is unlikely that a court would impose a legal duty to avoid injuries to others or himself upon a child who is under four. Children aged 4 and above owe the rest of the world the care of a hypothetical child of similar age, experience, and intelligence acting under similar circumstances. This makes the child's standard of care the opposite of the default standard of care. It is a prodefendant standard of care. Lenient and flexible. Exception: if the child is engaged in an adult activity, then we do not use the special standard of care--we use the default standard of care. An adult activity includes operating a motorized vehicle.

Answer 44

The professional must exercise the skill and knowledge normally possessed by members of that profession in good standing in similar communities. The professional must also use such superior judgment, skill, and knowledge as he actually possesses. Thus a specialist might be held liable where a general practitioner would not. For medical specialists, a "national" standard of care applies. A modern trend applies a national standard to all physicians. Unlike the default standard, rather than closing our eyes and thinking about how a hypothetical person would act, we go out into the world and determine how other professionals in that community are acting. The custom of the profession sets the standard of care: to do what is customarily done. The jury will not know what the custom of the profession is. Plaintiff almost always needs an expert witness. Also the idea of a similar community refers to size--rural doctors should be compared to rural doctors--unless you are dealing with a specialist who must have a national comparison.

Answer 45

1. Unknown trespasser--possessor is unaware of this persons presence on the land; 2. known or anticipated trespasser; 3. licensee; 4. invitee

Answer 46

Almost always are entering as licensees because of implied permission. They never recover negligence damages for injuries that are inherent risk of job. They are considered to have assumed the risk.

Answer 47

1. Fix the hazard. 2. Give a warning.

Answer 48

Plaintiff may want to use a statute to determine the standard of care--then if prove that defendant violated the statute will treat that as conclusive evidence of a breach. Called negligence per se. Means breach per se.

Answer 49

1. Plaintiff has to show that he is in the class of persons that the statute seeks to protect; 2. plaintiff must show that the accident that actually occurred is in the class of risks that this statute is trying to prevent. Class of person/class of risk test. Very common in automobile cases--but on bar exam they tend to stay away from auto cases and make them more exotic. Two exceptions for even where the two part test is satisfied: 1. if compliance with the statute would have been even more dangerous than violation; 2. if statutory compliance was impossible under the circumstances.

Answer 50

There are none. You never have to do an activity. It is a free country. This includes a duty to rescue. Olympic swimmer doesn't have to rescue drowning baby. Exceptions: if there is a relationship between the person in peril and the defendant, that will trigger a duty to rescue. Courts looks for a formal relationship: parties actually have legal labels (employer-employee; innkeeper-guest) Modern trend has been to expand to informal relationships--go to dinner with friend and has heart attack and you know CPR. 2. If the defendant is the one who put the plaintiff in peril, then will have a duty to rescue. The duty to rescue is to rescue reasonably under the circumstances. Reasonableness never requires a defendant to put their life at risk. Don't have to run into the building--calling the fire department will meet the duty. Rescuer doesn't mean actual heroics. If a gratuitous rescuer (someone who has not duty) screws it up, you will be liable for negligence. This is why a lot of states of changed it by statute: Good Samaritan statute.

Answer 51

Defendant engages in negligent act, but no physical trauma to the plaintiff's body, but plaintiff is upset. Must evaluate the duty standard: default reasonable person, professional, etc. When may plaintiff recover? Three scenarios: 1. Near miss scenario; 2. Bystander; 3. Relationship cases

Answer 52

Plaintiff was placed in a zone of physical danger by the defendant's negligence. The defendant did not cause trauma to the body, but he almost did! Upsets the plaintiff. Most courts require a second showing--the distress caused subsequent physical manifestations. (heart attack; miscarriage) modern trend has been to relax this standard: clinical depression.

Answer 53

Negligent defendant causes a serious injury or death to X and the death of X makes the plaintiff sad. Conditions for recovery: 1. plaintiff and X must be closely related; 2. plaintiff must see the injury to X as it happens. Bystander claim differs dramatically from state to state: some states include fiancee; some states you can arrive before the victim is removed fro m the scene. If they test on it, they will test on the core case--a blood relative and the distress person will see it as it happens.

Answer 54

Plaintiff and defendant are in a relationship and the relationship and when defendant acts negligently it puts the plaintiff in distress.

Answer 55

Element where the plaintiff must do 2 things: 1. Identify specific behavior of the defendant that was wrongful (can be an affirmative error or an omission--but must be really specific); 2. Plaintiff has to offer a theory as to why the conduct fell below the standard of care. Theory doesn't have to be sophisticated--can be an appeal to common sense or an appeal to custom.

Answer 56

Res ipsa loquitor: used by plaintiff who lacks information--does not know what the defendant did wrong. Plaintiff has to show that the accident is of the type NORMALLY associated with negligence. This is a probability test. More often than not, this result is caused by negligence. In cases like medical malpractice, there can be expert testimony. 2. Plaintiff must show that an accident of this type is normally due to negligence of someone in the defendant's position. Normally shown by evidence that the defendant had control over the injury causing instrumentality. Res ipsa inference gets the case to the jury--but the jury can decide the case either way. THE THING SPEAKS FOR ITSELF

Answer 57

1. factual causation 2. proximate causation | Really have nothing to do with one another. But factual causation comes before proximate causation in your analysis.

Answer 58

Establishes a linkage between the breach and the injury. A defendant is never a factual cause. Instead, a breach is a factual cause. Also, do not speak of THE factual cause--speak of A factual cause. All events have an infinite number of causes. But you are only looking at one--the breach.

Answer 59

But for the breach, plaintiff would be healthy today. This does not lead you to an inevitable conclusion. Two special cases where don't use but for test: both involve fact patterns involving multiple defendants.

Answer 60

In a merged cause case I have two or more careless defendants, but they are not acting together. Their negligence is operating independent of one another, but the force merge and injure plaintiff. In these cases, the courts do not use the but for test, but use the substantial factor test. Must ask if each breach could have caused the harm by itself. If each breach could have caused the harm by itself, then each breach is a substantial factor and therefore each defendant is liable and the defendants together are jointly liable. Do not have to show that each breach did cause the injury by a preponderance of evidence.

Answer 61

An argument in which the plaintiff must convince us that liability is fair on these facts and not unduly attenuated. Plaintiff must convince us that what happened was a foreseeable of the breach. "When you committed the careless act, you should have seen this coming."

Answer 62

1. Direct cause case: defendant commits the breach and plaintiff is injured fairly instantly. Liability is not called into question because of delay of time. Rather it would have to do with the surprising nature of what happens. The general rule is if the outcome was farfetched, freakish, or bizarre, then unfair to call it foreseeable and that to find liability is unfair. 2. Indirect cause case: things happen between the event and the injury. Passage of time.

Answer 63

1. Cases involving intervening medical negligence; the defendant is liable for the enhanced damages--foreseeable that there may be malpractice where medical services are needed; 2. Case involving intervening negligent rescue: defendant is liable for the enhanced damages--foreseeable that rescuers will be attracted and in a small number of cases the rescue will make the situation worse; 3. Intervening reaction or protection forces: defendant liable for enhanced damages. Foreseeable that there will reactions to the negligence and some of those reactions may cause damage. 4. A subsequent disease or accident: defendant liable for enhanced damages. Foreseeable that things can happen when you leave someone in a weakened condition.

Answer 64

You look at the breach and ask what is it about this breach that causes me to label it a breach? What am I worried about. Then shift gaze to plaintiff. If what happened to the plaintiff is a match, then we have liability. If not a match come out the other way.

Answer 65

Defendant liable for all injuries suffered by plaintiff even if surprisingly great in scope. Take you victim as you find him. Not limited to negligence--applies to every tort on the exam.

Answer 66

1. Contributory negligence; 2. implied assumption of risk. Older doctrines but still used in some states and tested.

Answer 67

Comparative negligence defense can be raised by showing the plaintiff failed to exercise proper care for his own safety. That means that the plaintiff is not a reasonably prudent person or someone who has failed to obey statutes. The jury is instructed to weigh the fault and assigns each a percentage. There is no law on how that percentage assignment should be done. In jury's discretion. Subtract plaintiff's percentage of fault from the whole.

Answer 68

On the exam they want you to use pure comparative negligence unless they tell you otherwise. The plaintiff always recovers something even if plaintiff bears most of the fault. The other system is modified or partial comparative negligence: in that system, plaintiff fault under 50% reduces recovery; plaintiff fault over 50% is an absolute bar and the plaintiff recovers zero.

Answer 69

1. injuries caused by animals; 2. abnormally dangerous activities; 3. Defective consumer products

Answer 70

1. domesticated animals --you are not strictly liable for your domestic animals except you are strictly liable if you keep a domesticated animal and you have knowledge of its vicious and dangerous propensities--now strictly liable. With dogs, the dogs usually has previously bitten someone. So first bite is negligence and after that it is strict liability. There is no liability at all if the victim is a trespasser on your property. 2. Wild animal: always strict liability. Traditional exam trick is to load up the question with the defendants safety precautions--but it doesn't matter how safe you are.

Answer 71

A person is strictly liable for any harm caused by an abnormally dangerous activity. An activity is abnormally dangerous if it creates a foreseeable risk of serious harm, even when reasonable care is exercised. And the activity is not a matter of common practice in the community.

Answer 72

1. blasting; 2. use of highly dangerous, toxic easily dispersed chemical; 3. nuclear energy or radiation.

Answer 73

1. Negligence; 2. Breach of warranty claim; 3. fraud. In the question they will often say the theory.

Answer 74

industrial products

Answer 75

1. defendant must be a merchant (someone who ordinarily deals in goods of this type); 2. proof that the product is defective; 3. show that product has not been altered since it left the defendant's hands; 4. plaintiff must show that making a foreseeable use of the product at the time of the injury.

Answer 76

(someone who ordinarily deals in goods of this type); Casual sellers--people like you and me--who are selling stuff on ebay or craigslist. We are not merchants, so cannot be strictly liable. Service providers are not merchants--just repair your goods. Lessors: they are considered merchants and they can be strictly liable. A lessor deals in goods of this type--like a rental car company. Every party in the distribution chain is considered a merchant and every party is vulnerable to a strict liability claim. No requirement of privity of contract--you have a claim with everyone in the chain.

Answer 77

In real world this is where the action, but on the MBE, this element is often stipulated. On an essay question you are likely going to have to do the analysis: 3 kinds of product defects: 1. manufacturing defect; 2. design defect; 3. warning defect

Answer 78

product has a manufacturing defect if it differs from all the other products that came off the assembly line and it differs in a way that is more dangerous than the other products. An anomaly--an irregular.

Answer 79

product has a design defect when it could have been build differently--a hypothetical alternative design. Hypothetical alternative design posited by the plaintiff must be safer than the version actually marketed. It must be economical--has to cost about the same as the version or only a teeny bit more. It must be practical--cannot undermine the utility of the product. If plaintiff shows the existence of the hypothetical alternative design, then the original design is defective. If there is a government regulation governing how the product should be built, failure to conform to the regulation, the lack of conformity proves a design defect. With design defect, all the units made are bad. So the extent of potential liability is much greater. If a product has a design defect, you cannot avoid liability by slapping a warning on it.

Answer 80

If product has residual risks that cannot be designed out and are not obvious to the user, that product is defective if it does not contain adequate warning and instruction about those risks. A warning must be ADEQUATE.

Answer 81

presumed satisfied if the product moved in ordinary channels of distribution.

Answer 82

many misuses of products are nonetheless foreseeable. Just because the plaintiff is misusing does not mean we deny him recovery. If misuse is foreseeable, then still liable.(using a chair as a step stool)

Answer 83

Use comparative fault.

Answer 84

A type of harm--the interference with plaintiff's ability to enjoy real estate to an unreasonable degree. Can be committed intentionally, negligently or without any fault. Courts try to balance the interests: plaintiffs right to be free from nuisance with defendant's right to use property as he wants. It is not a defense that a plaintiff came to the are after the defendant came to the areas after the activity. Factory does not have right to appropriate the property without buying it.

Answer 85

Arises when somebody commits a tort (tortfeasor) and plaintiff want to hold someone else liable. Rational basis for this is that there is a relationship between the tortfeasor and the third party: 1. employer-employee. 2. Hiring party and independent contractor; 3. automobile owner and automobile driver; 4. parents and children

Answer 86

Committed within the scope of employment. Intentional torts are generally outside the scope of employment--but not an absolute rule. Exceptions: if job involves use of physical force, then intentional torts are in the scope of employment. Nightclub bouncer. Job is one that generates friction--debt collector or repo man. Any tort that directly serves the boss's interest.

Answer 87

no vicarious liability.

Answer 88

no vicarious liability for those who borrow the car. Exception: if you are doing an errand for me in my car, then you are my agent and I'm vicariously liable.

Answer 89

parents are not vicariously liable for the torts of your kids. No exceptions.

Answer 90

From whom can the plaintiff recover--defendants are jointly liable--can recover all of the money from any plaintiff. Once one of the defendant's has paid the plaintiff, what can the defendant get back from other defendants? Jury assigns percentages.

Answer 91

to get all of your money back--to be held harmless. 1. vicariously liable party can be indemnified by the active tortfeasor; 2. a non manufacturer in a strict products case can get indemnity from the manufacturer.

Answer 92

If the victim of any tort is married, the uninjured spouse gets a separate and additional cause of action in his and her own name. It is derivative. Any defense that can be asserted against the injured spouse will be available against the consortium plaintiff. What are you recovering for: 1. money for loss of services; 2. loss of society--companionship; 3. loss of sex.

Answer 93

1. moral pressure; 2. future threats.

Answer 94

Irrelevant how short the period of confinement is.

Answer 95

The interest in exclusive possession of realty.

Answer 96

The trespass may occur on the surface of the land, below the surface, or above it. Courts generally construe plaintiff's "land" to include air space and subsurface space to the height or depth plaintiff can make beneficial use of such space. Thus, for example, one could commit a trespass by stringing wires over the land, flying an airplane at low altitudes over it, tunneling under it, etc.

Answer 97

Mistake as to the lawfulness of the entry is no defense as long as defendant intended the entry upon that particular piece of land.

Answer 98

The physical invasion of plaintiff's property must have been legally caused by the defendant's act or something set in motion thereby.

Answer 99

No requirement of damages. As with most other intentional torts, damage is presumed; i.e., actual injury to the land is not an essential element of the cause of action. Can get nominal damages.

Answer 100

1. Extreme Business Conduct: Certain methods of business conduct may be construed as outrageous conduct, e.g., use of extreme methods of collection, if repeated may be actionable; 2. Misuse of Authority: Misuse of authority in some circumstances is actionable, e.g., school authorities threatening and bullying pupils. 3. Offensive or Insulting Language: Generally, offensive or insulting language will not be characterized as "outrageous conduct." This result could change if there is a SPECIAL RELATIONSHIP between plaintiff and defendant or a SENSITIVITY on plaintiff''s part of which defendant is aware.

Answer 101

1. False arrests; | 2. "Shoplifting" Detentions Are Privileged

Answer 102

An action for false imprisonment does not lie for an arrest or a detention made by virtue of legal process duly issued by a court or official having jurisdiction to issue it. However, where an arrest by a police officer or private citizen for a criminal offense without a warrant is unlawful (i.e., not privileged), it may constitute false imprisonment.

Answer 103

1. Felony arrests without warrant; a felony arrest without a warrant by a police officer (or a private citizen acting at the officer's direction) is valid if the officer has REASONABLE GROUNDS to believe that a felony has been committed and that the person arrested has committed it. Such an arrest by a PRIVATE PERSON will be privileged only if a felony has IN FACT been committed and the private person has reasonable grounds for believing that the person arrested has committed it. 2. Misdemeanor Arrests without a Warrant: Both police officers and private citizens are privileged for misdemeanor arrests without a warrant if the misdemeanor was a BREACH OF THE PEACE and was committed in the presence of the arresting party. (Note that in most states, police officers have a broader statutory privilege of arrest for ANY misdemeanor committed in their presence.) 3. Arrests to Prevent a Crime without a Warrant: Where a felony or breach of the peace is in the process of being, or reasonably appears about to be, committed, both police officers and private citizens are privileged to make an arrest.

Answer 104

1. Felony Arrest: both police officers and private citizens may use that degree of force reasonably necessary to make the arrest; however, deadly force is permissible only when the suspect poses a threat of serious harm to the arresting party or others. 2. Misdemeanor Arrest: both police officers and private citizens are privileged to use only that degree of force necessary to effect the arrest, but never deadly force.

Answer 105

Shoplifting detentions are privileged (by statute in some states and by caselaw in others) when the following conditions are satisfied: 1. There must be a REASONABLE BELIEF as to the fact of theft; 2. The detention must be conducted in a REASONABLE MANNER and only nondeadly force can be used; AND 3. The detention must be only for a REASONABLE PERIOD OF TIME and only for the purpose of making an investigation.

Answer 106

The defendant is liable not only for "direct" contact, but also for "indirect" contact; i.e., it will be sufficient if he SETS IN MOTION A FORCE that brings about harmful or offensive contact to the plaintiff's person.

Answer 107

Transferred intent may be invoked only where the tort intended and the tort that results are both within the following list: 1. Assault; 2. Battery; 3. False Imprisonment; 4. Trespass to land; and 5. Trespass to chattels.

Answer 108

1. An act by defendant INTERFERING with plaintiff's right of possession in the chattel that is SERIOUS ENOUGH in nature or consequence to warrant that the defendant PAY THE FULL VALUE OF THE CHATTEL; 2. INTENT to perform the act bringing about the interference with plaintiff's right of possession; and 3. CAUSATION.

Answer 109

1. Wrongful acquisition, e.g., theft, embezzlement 2. Wrongful transfer, e.g., selling, misdelivering, pledging 3. Wrongful detention, e.g., refusing to return to owner 4. Substantially changing 5. Severely damaging or destroying 6. Misusing the chattel.

Answer 110

The only intent required is the intent to perform the act that interferes with the plaintiff's rights of possession. Even if the conduct is wholly innocent, liability may attach where the interference is serious in nature. BONA FIDE PURCHASER of chattel may become a converter if the chattel had been stolen from the true owner. ACCIDENTAL CONDUCT INSUFFICIENT unless the actor was using the chattel without permission when the accident occurred (actor may be liable for negligence).

Answer 111

Limited to tangible PERSONAL PROPERTY and INTANGIBLES that have been REDUCED TO PHYSICAL FORM (e.g., a promissory note), and documents in which title to a chattel is merged (e.g., a bill of lading or a warehouse receipt). Intangibles such as a bakery route, customer lists, or the goodwill of a business may not be the subject of conversion. Neither may real property be converted.

Answer 112

Anyone with possession or the immediate right to possession may maintain an action for conversion. Possession is viewed as sufficient title against a wrongdoer. However if the person in possession is not the true owner, she is accountable to the true owner for any recovery to the extent of the owner's interest.

Answer 113

The interference with the plaintiff's chattel interests must have been legally caused by the defendant's act or something set in motion thereby.

Answer 114

1. Damages: Plaintiff is entitled to damages for the FAIR MARKET VALUE of the chattel. This value is generally computed as of the TIME AND PLACE OF CONVERSION. The defendant is given title upon satisfaction of the judgment so that, in effect, there is a forced sale of chattel. Note that even if the defendant wishes to return the item, the plaintiff is not obligated to take it back once it has been converted. 2. Replevin: If the plaintiff wishes to have the chattel returned, he may get it by availing himself of the remedy of replevin.

Answer 115

Mistake as to the lawfulness of defendant's action (e.g., a mistaken belief that defendant owns the chattel) is NO DEFENSE to an action for trespass to chattels. Again, as with trespass to land, the intent to trespass is not required--intent to do the act of interference with the chattel is sufficient.

Answer 116

Anyone with possession or the immediate right to possession may maintain an action for trespass to chattels.

Answer 117

The interference with plaintiff's possessory interests in the chattel must have been caused by defendant's act or something set in motion thereby.

Answer 118

ACTUAL DAMAGES REQUIRED. As a general rule, nominal damages will not be awarded for trespass to chattels; i.e., in the absence of any actual damages, an action will not lie. However if the trespass amounts to a dispossession, the loss of possession itself is deemed to be an actual harm.

Answer 119

If the statement standing alone is defamatory "on its face." However, a statement is also actionable if the defamatory meaning becomes apparent only by adding extrinsic facts. The plaintiff pleads and proves such additional facts as inducement and established the defamatory meaning by innuendo. Inducement and innuendo identify to the courts and the parties that extrinsic facts are being introduced to the court by the plaintiff to establish the first element of a prima facie case.

Answer 120

Not all defamation consists of direct remarks. Pictures, satire, drama, etc., may convey an actionable defamatory meaning.

Answer 121

While a statement of fact may always be defamatory, a statement of opinion is actionable only if it appears to be based on specific facts, AND an express allegation of those facts would be defamatory.

Answer 122

Whether a published statement is one of fact or opinion depends on the circumstances surrounding the publication and the nature of the words used. Generally, the broader the language used, the less likely that it will be reasonably interpreted as a statement of fact or opinion based on specific facts

Answer 123

A statement may be actionable even though no clear reference to he plaintiff is contained on the face of the statement. In such a case, the plaintiff is required to introduce additional extrinsic facts that would lead a reasonable reader, listener, or viewer to perceive the defamatory statement as referring to the plaintiff. Pleading and proving such extrinsic facts to show that the plaintiff was intended is called "colloquium."

Answer 124

1. ALL MEMBERS OF A SMALL GROUP: Where the defamatory language refers to all members of a small group, each member may establish that the defamatory statement was made of and concerning h by alleging that he is a member of the group. 2. ALL MEMBERS OF A LARGE GROUP: If the defamatory statement refers to all members of a large group, member of that group may establish this element of the cause of action. 3. SOME MEMBERS OF A SMALL GROUP: Where the defamatory language refers to some members of a small group, plaintiff can recover if a reasonable person would view the statement as referring to the plaintiff.

Answer 125

Once publication is established, it is no defense that defendant had no idea that she was defaming plaintiff because she neither knew or had reason to know that plaintiff existed (use of fictional name), nor knew that the publication was defamatory. It is the intent to publish, not the intent to defame, that is the requisite intent.

Answer 126

Each repetition of the defamatory statement is a separate publication for which the plaintiff may recover damages.

Answer 127

All copies of a newspaper, magazine, or book edition are treated as only one publication. The publication is deemed to occur when the finished product is released by the publisher for sale. Damages are still calculated on the total effect of the story on all of its readers.

Answer 128

1. Primary publisher 2. Republisher 3. Secondary publishers

Answer 129

Each individual who takes part in making the publication is charged with the publication as a primary publisher.

Answer 130

A republished (one who repeats a defamatory statement) will be held liable on the same general basis as a primary publisher. This is so even if the repeater states the source or makes it clear that she does not believe the defamation. Note: where there has been republication, the original defamer's liability may be increased to encompass any new harm caused by the repetition if the republication was either 1. Intended by the original defamer or 2. Was reasonably foreseeable to her.

Answer 131

One who is responsible only for disseminating materials that might contain defamatory matter (e.g., vendor of newspapers, player of tape) is viewed as a secondary publisher. Such individuals are liable Only if they know or should know of the defamatory content.

Answer 132

In certain situations, a speaker may say something defamatory without being liable because of the existence of a qualified privilege.

Answer 133

1. Reports of Public Proceedings 2. Public Interest 3. Interest of Publisher 4. Interest of Recipient 5. Common Interest of Publisher and Recipient

Answer 134

There is a qualified privilege for reports of public hearing or meetings. This includes judicial, legislative, or executive proceedings as well as other proceedings of sufficient public interest, e.g., political convention, trade association meeting, etc. The privilege EXCUSES ACCURATE REPORTS of statements that were false when made, but it DOES NOT EXCUSE INACCURACIES in the reporting of statements.

Answer 135

1. Publication to one acting in Public Interest 2. Fair Comment and Criticism NOTE: generally been preempted by the constitutional requirements imposed by New York Times v. Sullivan and its progeny.

Answer 136

Statements made to those who are to take official action of some kind are qualifiedly privileged. Example: statements made to a parole board about a prisoner by one who opposed the grant of parole are privileged.

Answer 137

One is permitted to make remarks that disparage another's acts in the course of a critique of public interest, e.g., book reviews, articles on public institutions, etc. The matter commented upon must be of general public interest.

Answer 138

Where defendant's statement is made to defend her own actions, property, or reputation, it may be privileged. Example: A statement by a debtor explaining to a collection agency her reason for not paying a bill is qualifiedly privileged even if defamatory statements are contained therein.

Answer 139

A qualified privilege is recognized when the recipient has an interest in the information and it is reasonable for the defendant to make the publication, i.e., when she is not the intermeddler. Examples: 1. A statement by a credit bureau to a customer is qualifiedly privileged. 2. A statement made by a former employer to a prospective employer about a job applicant is qualifiedly privileged.

Answer 140

Where there is a common interest between the publisher and the recipient, there is a qualified privilege. Example: A statement by one board member of a charitable foundation, relating to the foundation's business, to another board member is qualifiedly privileged.

Answer 141

A qualified privilege exists only if exercised in a reasonable manner and for a proper purpose. Thus, even though the facts might otherwise give rise to a qualified privilege situation, the actor may have lost this privilege by virtue of his conduct. There are two basic ways in which this generally occurs: 1. Statement Not Within Scope of Privilege; 2. Malice.

Answer 142

The allegedly protected statement must fall within the scope of the privilege. Hence, the privilege does not encompass the publication of irrelevant defamatory matter unconnected with the public or private interest entitled to protection. Similarly, the privilege does not cover publication to any person whose hearing or reading of the statement would not reasonably be believed to be necessary for the furtherance of that interest.

Answer 143

A qualified privilege will be lost if it is shown that the speaker acted with malice. "Malice" here means that the statement was made with 1. KNOWLEDGE that it was untrue or 2. a RECKLESS DISREGARD as to the truth or falsity. NOTE: At common law, many courts held that malice in the sense of ill will of defendant toward plaintiff would result in loss of the qualified privilege. Most courts no longer define malice in this way, however. As long as the defendant is using a proper occasion for a qualified privilege in a proper way, she will not lose the privilege simply because she bears ill will toward plaintiff.

Answer 144

The DEFENDANT BEARS THE BURDEN of proving that the privilege exists. If the privilege is qualified, the plaintiff then bears the burden of proving that the privilege has been lost through excessive publication or malice.

Answer 145

Several matters, while not defenses to an action, may be considered by the trier of fact on the issue of damages. These include: 1. No actual malice; 2. retraction; 3. anger

Answer 146

Malice may be inferred from some statements, but if the jury is shown that there was no actual malice, such evidence is admissible to mitigate damages. To this end, defendant may prove the source of her information and grounds for her belief.

Answer 147

Unless made immediately after publication so as to negate the defamatory effect of a statement, retraction does not undo the wrong. But the court may consider it to show LACK OF ACTUAL MALICE in mitigation of damages. A failure to retract after a request to do so is often allowed as evidence of the opposite effect.

Answer 148

Anger of the speaker may be a mitigating circumstance IF PROVIDED by the plaintiff.

Answer 149

1. Defamation; 2. Invasion of Right to Privacy; 3. Misrepresentation; 4. Interference with Business Relations; 5. Wrongful Institution of Legal Proceedings;

Answer 150

1. General damages presumed; 2. Libel distinction--minority position; 3. Libel per se--presumed damages; 4. Libel per quad--special damages usually required

Answer 151

In most jurisdictions, general damages are PRESUMED BY LAW for all libels; i.e., special damages need not be established

Answer 152

A substantial minority of courts distinguish between libel per se and libel per quod in determining whether a libel is actionable without proof of special damages.

Answer 153

These courts take the position that injury to the reputation of the plaintiff is presumed by law only if the statement is libelous and defamatory on its face (libel per se). Thus, such libels are actionable without pleading or proving special damages.

Answer 154

The libelous statement that is not defamatory on its face, but that requires reference to extrinsic facts to establish its defamatory content, is characterized as libel per quod by these courts. These courts generally require special damages to be pleaded and proved for such libels.

Answer 155

Where the original defamation is libel, any repetition, even if oral, is also libel. On the other hand, the written repetition of a slander will be characterized as libel.

Answer 156

In slander, injury to reputation is NOT PRESUMED. Thus, ordinary slander is not actionable in the absence of pleading and proof of special damages.

Answer 157

If the spoken defamation falls within one of four categories characterized as slander per se, an injury to reputation is presumed without proof of special damages.

Answer 158

A defamatory statement adversely reflecting on plaintiff's abilities in his business, trade or profession is actionable without pleading or proof of special damages. Statements that the plaintiff is dishonest or lacks the basic skill to perform his profession or carry out his office are examples of this slander per se category. The statement must, however, directly relate to plaintiff's profession, trade, or business. Example: Statement about an engineer stating "he is a terrorist" is not directly related to his trade.

Answer 159

A defamatory statement that the plaintiff is presently suffering from a foul and loathsome disease is actionable without pleading or proof of special damages. Historically, this slander per se category has been limited to venereal disease and leprosy.

Answer 160

A defamatory statement that the plaintiff is or was guilty of a crime involving moral turpitude is actionable without pleading or proof of special damages. Because common law crimes generally are deemed to involve moral turpitude (e.g., assault, larceny, perjury), this category of slander per se incorporates a large number of statements. Thus, the allegation that a married man has a mistress implies that he is guilty of the crimes of fornication and adultery.

Answer 161

A defamatory statement imputing unchaste behavior to a woman is actionable without pleading or proof of special damages.

Answer 162

General damages are presumed by law and need not be proved by the plaintiff. They are intended to compensate the plaintiff for the general injury to her reputation caused by the defamation. Note: Constitutional free speech and press considerations may restrict an award of presumed damages when the defamation involves matters of "public concern."

Answer 163

Special damages in a defamation law context means that the plaintiff must specifically prove that she suffered PECUNIARY LOSS as a result of the defamatory statement's effect on her reputation, and are not proved merely by evidence of actual injury--such as the loss of friends, humiliation, or wounded feelings. The loss of a job, prospective gift or inheritance, an advantageous business relationship, or customers are pecuniary losses such as those contemplated by the special damages requirement.

Answer 164

Liability if generally limited to the use of plaintiff's picture or name in connection with the promotion or advertisement of a product or service, e.g., use of plaintiff's picture to advertise an automobile. The mere fact that defendant is using plaintiff's picture or name for his own personal profit may not, by itself, be sufficient. Thus, for example, the use of a personality's name in a magazine story, even if motivated by profit, may not be actionable. (newsworthiness exception--applies to you and me as well as celebrities)

Answer 165

For liability to attach, there must be PUBLICITY concerning the "false light" facts; this requires MORE than "publication" in the defamation sense.

Answer 166

If it attributes to him: 1. Views that he does not hold, or 2. Actions that he did not take. Note: this element involves falsity and, as such, may also involve defamation if the falsity affect reputation.

Answer 167

To be actionable, this "false light" must be something that would be highly offensive to a reasonable person under the circumstances.

Answer 168

In Time, Inc. v. Hill, a case involving this particular invasion of privacy branch, the Supreme Court held that the First Amendment prohibits recovery for invasion of privacy in cases where the published matter is in the public interest, unless the plaintiff establishes that the defendant acted with malice. Malice here, as in New York Times v. Sullivan, goes to knowledge of falsity or reckless disregard for the truth. After Gertz and Dun & Bradstreet, the Supreme Court may be expected to give the states a slightly larger scope in which to protect privacy where a public figure is not involved. Thus where the public interest in the information is not overriding and where the risks to the privacy interests of the private person are clear on the face of the material to a reasonably prudent publisher, the Supreme Court may choose in the future to permit an action in privacy without proof of malice in the New York Times sense. However, at least in public figure cases, the Time, Inc. v. Hill requirement of malice still holds.

Answer 169

At common law, a defamatory statement was presumed to be false. The Supreme Court, however, as rejected this presumption in all cases in which the plaintiff is constitutionally required to prove some type of fault. In these cases, the plaintiff must prove as an element of the prima facie case that the statement was false. EXAM APPROACH: Even where the statement is true, it may nonetheless give rise to liability if it is uttered under circumstances sufficient to constitute intentional infliction of severe emotional distress or invasion of the right of privacy; hence, consider these torts as well as when your exam question presents potentially defamatory statements. However, where the plaintiff is a public figure or the matter is one of public concern, and recovery for defamation would be barred on First Amendment grounds, he will not be allowed to rely on these other tort theories (Snyder v. Phelps 2011)

Answer 170

Although at common law defamation liability could be strict, a number of Supreme Court decisions based on the First Amendment now impose a fault requirement in cases involving public figures or matters of public concern. The degree of fault to be established depends on the type of plaintiff, i.e., whether he is a public official or public figure as compared with a private person involved in a matter of public concern.

Answer 171

MALICE REQUIRED A public official may not recover for defamatory words relating to his official conduct in the absence of "clear and convincing" proof that the statement was made with "malice." (New York Times v. Sullivan 1964)

Answer 172

MALICE REQUIRED The rule of New York Times v. Sullivan has been extended to cover litigation where the plaintiff is a public figure. A person may be deemed a "public figure" on one of two grounds: 1. where he has achieved SUCH PERVASIVE FAME OR NOTORIETY that he becomes a public figure for all purposes and contexts (e.g., celebrity sports figure); or 2. where he voluntarily assumes a CENTRAL ROLE in a particular PUBLIC CONTROVERSY (e.g., prominent community activist) and thereby becomes a "public figure" for that limited range of issues (Gertz v. Robert Welch, Inc. 1974) In Gertz, the Court indicated that it might be possible for a person to become a public figure through no purposeful action of his own, but considered such instances to be "exceedingly rare." Subsequent cases support this interpretation. (Times v. Firestone 1976; Hutchinson v. Proxmire 1979; Wolston v. Reader's Digest Association 1979)

Answer 173

Malice was defined by the Supreme Court in New York Times v. Sullivan as: 1. KNOWLEDGE that the statement was false, or 2. RECKLESS DISREGARD as to its truth or falsity.

Answer 174

It must be shown that the defendant was subjectively aware that the statement he published was false or that he was subjectively reckless in making the statement. 1. Reckless Conduct--Subjective Standard "Reckless" conduct is NOT measured by a reasonable person standard or by whether a reasonable person would have investigated before publishing. There must be a showing that the defendant in fact (subjectively) ENTERTAINED SERIOUS DOUBTS as to the truthfulness of his publication. 2. Spite, etc., Not Enough It is not enough that the defendant is shown to have acted with spite, hatred, ill will, or intent to injure the plaintiff.

Answer 175

A journalist deliberately altering a quotation attributed to a public figure can be found to have "knowledge of falsity" if it can be established that the alteration results in a MATERIAL CHANGE IN THE MEANING CONVEYED BY THE STATEMENT. (Masson v. New Yorker Magazine 1991)

Answer 176

Where the defamatory statement relates to a NONPUBLIC person, there is less concern for freedom of speech and press. In addition, private individuals are more vulnerable to injury from defamation because they usually do not have the same opportunities for rebuttal as do public persons. Accordingly, defamation actions brought by private individuals are subject to constitutional limitations only when the defamatory statement involves a matter of "public concern." And even in those cases, the limitations are not as great as those established for public officials and public figures (Gertz v. Robert Welch, Inc)

Answer 177

1. it prohibits liability without fault; 2. it restricts the recovery of presumed or punitive damages.

Answer 178

The Supreme Court has deliberately chosen to not define this term, but has stated that it is NOT LIMITED TO OUT-OF-POCKET LOSS. It may include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering (i.e., an injury to reputation not resulting in special damages may still be actionable.) The important point is that there must be COMPETENT EVIDENCE of "actual" injury (no presumed damages, although there need be no evidence that assigns an actual dollar value to the injury.

Answer 179

1. Consent; 2. Truth; 3. Absolute Privilege; 4. Qualified privilege

Answer 180

As with all torts, consent is a complete defense to a defamation action.

Answer 181

In cases of purely private concern where plaintiff is not required to prove falsity, defendant may establish the truth of the statement as a complete defense.

Answer 182

Where the statement published is such that its defamatory potential was APPARENT to a reasonably prudent person, the plaintiff must show that the defendant permitted the false statement to appear, if not through malice, at least through NEGLIGENCE as to its truth or falsity. The Supreme Court has left open the question of what the fault standard would be where the statement published involved NO apparent defamatory potential (i.e., factual misstatements that are innocent on their face and require proof of extrinsic facts to be defamatory, such as libel per quod).

Answer 183

Assuming the defendant was in fact negligent in ascertaining the truth of what it published--but still it had no actual knowledge of the falsity, nor was it guilty of reckless disregard for the truth--damages can be recovered but are limited to the "ACTUAL INJURY" sustained by the plaintiff; i.e., presumed damages are prohibited.

Answer 184

If the plaintiff cannot prove "actual injury," he cannot recover any damages, UNLESS he can show that the publication was made with knowledge of its falsity or with reckless disregard for the truth. There is no constitutional protection for publication made with "knowledge or reckless falsity," and hence, the plaintiff is entitled to whatever recovery is permitted under state law in such cases (i.e., "presumed" or general damages and even punitive damages in appropriate cases.) Note that this approach is simply a restatement of the general rule in torts that damages must be proved in negligence actions but usually are not required where the defendant is more culpable, such as for intentional torts.

Answer 185

All statements made by a judge, jurors, counsel, witnesses, or parties in judicial proceedings are absolutely privileged. The privilege attaches to ALL aspects of the proceedings, e.g., statements made in open court, pretrial hearing, deposition, or in any of the pleadings or other papers in the case. There is a requirement that the statement bear some REASONABLE RELATIONSHIP to the proceedings.

Answer 186

the content, form, and context of the publication. Example: Dun & Bradstreet v. Greenmoss Builders The Court determined that a credit agency's erroneous report of plaintiff's bankruptcy, distributed to five subscribers, was speech solely in the private interest of the speaker and its specific business audience. The content (the bankruptcy of a small business), the form (a credit agency report), and the context (a communication to only five subscribers) established that a matter of public concern was not involved.

Answer 187

All remarks made by either federal or state legislators in their official capacity during legislative proceedings are likewise absolutely privileged. There is NO REQUIREMENT OF REASONABLE RELATIONSHIP to any matter at hand.

Answer 188

A governmental executive official is absolutely privileged with respect to any statement made by her while exercising the functions of her office. There is a requirement that the statement have some REASONABLE RELATIONSHIP to the executive matter or proceeding in which she is acting.

Answer 189

Under certain circumstances, the speaker is not liable for defamatory statements because he enjoys an absolute privilege. Such absolute privileges are not affected by a showing of malice, abuse, or excessive provocation, as in the case of qualified privileges. 1. Judicial proceedings; 2. Legislative proceedings; 3. Executive proceedings; 4. "Compelled" Broadcast of Publication; 5. Communications Between Spouses (some states deal with this by saying that there was no publication, but this is not the preferred view.)

Answer 190

A radio or TV station compelled to allow a speaker to use the air, a newspaper compelled to print public notices, etc., is absolutely privileged in an action based on the content of the compelled publication. (Farmer's Educations Cooperative v. WDAY 1959) Example: Radio station gave time to one candidate for public office and hence came under obligation to extend similar treatment to other candidates for the same office. Station had no right to censor these later speeches. Thus, no liability attaches for defamation they might contain.

Answer 191

The rationale of Time, Inc. v. Hill appears to encompass this branch of invasion of privacy tort as well. In other words, if the matter is one of LEGITIMATE PUBLIC INTEREST, the publication is privileged if made without malice. 1. Effects of Passage of Time The mere passage of time does not preclude the "public interest" characterization of a publication. Hence, it has frequently been held that the life of one FORMERLY in the public eye has become public property, even though that person is no longer in the public eye. Example: A magazine published the life history of a former child prodigy. This may be construed to be a matter in the public interest. 2. Absolute Privilege with Regard to Matters of Public Record Where the matters republished are taken from official public records, there is an absolute constitutional privilege (e.g., rape victim's name obtained from police records or court proceedings used in newspaper article).

Answer 192

The invasion of plaintiff's interest in privacy must have been PROXIMATELY CAUSED by defendant's conduct.

Answer 193

In an action for invasion of right to privacy, the plaintiff need not plead and prove special damages, provided the elements of a prima facie case are present. In other words, emotional distress and mental anguish are sufficient damages.

Answer 194

1. Consent; | 2. Defamation Defenses

Answer 195

Consent is a defense to an action for invasion of the right to privacy. Some states, by statute, require that the consent be in writing. Here, as in all consent defense situations, the defendant may nonetheless be liable if the consent granted has been exceeded. Example: Plaintiff consents to be interviewed, and a picture taken during the interview is used in conjunction with an advertisement for a product. Liability may attach. Note: mistake, even if reasonable, as to whether consent was given (which in fact it was not) is NOT a valid defense.

Answer 196

Those defenses to actions for defamation that are based on ABSOLUTE AND QUALIFIED PRIVILEGES appear applicable to those invasion of right to privacy actions predicated on publication grounds, i.e., "false light" and "public disclosure of private facts" actions. Thus, for example, one may have an absolute privilege to comment as a participant in judicial proceedings or a qualified privilege to report public proceedings. NOTE: Truth is NOT a good defense to most invasion of privacy actions. Similarly, inadvertence, good faith, and lack of malice generally are NOT good defenses.

Answer 197

1. Right is personal: does not extend to members of a family, does not survive death, is not assignable. 2. Not applicable to corporations: Only individuals may avail themselves of a right to privacy action.

Answer 198

1. Intentional Misrepresentation (Fraud, Deceit) | 2. Negligent Misrepresentation

Answer 199

1. MISREPRESENTATION made by defendant; 2. SCIENTER; 3. An INTENT TO INDUCE plaintiff's RELIANCE on the misrepresentation; 4. CAUSATION (i.e., actual reliance on the misrepresentation); 5. JUSTIFIABLE RELIANCE by plaintiff on the misrepresentation; and 6. DAMAGES.

Answer 200

Usually, there is a requirement that the false representation be of a MATERIAL PAST OR PRESENT FACT. In certain cases, however, a misrepresentation of opinion may be actionable. (This is really a justifiable reliance question.)

Answer 201

No general duty to disclose a material fact or opinion to one is imposed upon another. Thus, simple failure to disclose a material fact or opinion does not generally satisfy the first element of this cause of action. A few general EXCEPTIONS exist, however, 1. Defendant stands in such a FIDUCIARY RELATIONSHIP to plaintiff as would call for a duty of disclosure. 2. Defendant selling a real property knows that plaintiff is unaware of, and cannot reasonably discover, material information about the transaction (e.g., builder does not tell buyer that the house was built on a landfill). 3. Where defendant speaks and her UTTERANCE DECEIVES PLAINTIFF, she will be under a duty to inform plaintiff of the true facts.

Answer 202

Where a person actively conceals a material fact, she is under a duty to disclose this fact, and failure to do so satisfies the first element of a prima facie case (e.g., salesperson turns back odometer on an automobile).

Answer 203

To establish a prima facie case, plaintiff must prove that defendant made the representation knowing it to be false or, alternatively, that it was made with reckless disregard as to its truth or falsity. This element of the prima facie case is often given the technical name of "scienter." Example: a corporation's president stated falsely that last year's profits were $100,000 without having looked at a profit and loss statement. Scienter is present. NOTE: If scienter is not present, defendant may still be liable for negligent misrepresentation.

Answer 204

The defendant must have intended to induce plaintiff or a class of persons to which plaintiff belongs to act or refrain from acting in reliance on the misrepresentation. 1. Continuous Deception Exception: an exception exists where the misrepresentation is a "continuous deception," e.g., mislabeling of product by manufacturer, misrepresentation in negotiable instrument. In such cases, it is not necessary that the reliance of a particular plaintiff be intended. Anyone into whose possession the product or instrument has come may bring an action. 2. Third-Party Reliance Problem One recurring problem is where the defendant communicates directly to one person and another relies upon misrepresentation. In such cases, the defendant is viewed as intending to deceive the person who relies upon misrepresentation IF THE DEFENDANT COULD REASONABLY FORESEE THAT THE PLAINTIFF WILL HAVE SUCH RELIANCE. Example: Chauncey sends an intentionally false profit statement to a stockbroker, and a customer of the stockbroker relies on the statement to his detriment. Liability exists.

Answer 205

Plaintiff must prove that the misrepresentation played a substantial part in inducing him to act as he did. In short, the plaintiff must prove "actual reliance."

Answer 206

Almost always justified: Even though it may have been intended by defendant that plaintiff rely on the representation, plaintiff must nonetheless prove that such reliance was "justified." As a practical matter, the reliance of plaintiff on representation of fact is almost always justified. Only where the facts are obviously false is such reliance not justified. 1. No duty to investigate. Courts do not impose a duty to investigate the veracity of defendant's representation of fact. This is so even though it would be easy for plaintiff to do so. If, however, plaintiff does in fact investigate, he may not rely on representations by defendant inconsistent with the fact reasonably ascertainable from such investigation.

Answer 207

Not Usually Justifiable: AS a general matter, reliance on false statements of opinion, value, or quality will be viewed as unjustifiable. Exceptions: 1. Superior knowledge of defendant: if the defendant making a false representation of opinion has a superior knowledge of the subject matter, then reliance by a person without such knowledge may be viewed as justified. 2. Statements of Law: treated as statements of opinion if they are merely predictions as to legal consequences of facts; they may not be justifiably relied upon unless the statement is made by a lawyer to a layperson, in which case the superior knowledge rule operates. On the other hand, a statement of law that includes an express or implied misrepresentation of fact is actionable. Example: defendant falsely states that the house she is offering for sale conforms to the city plumbing and electrical requirements. Liability exists. 3. Statement of Future Events: viewed as statements of opinion and may not be justifiably relied upon. An exception exists if the statement of future events may be characterized as a statement of "present intent," which is viewed as a statement of fact. Example: Defendant promises to pay plaintiff $50 per month installments for the the next two years. This may be viewed as a statement of "fact." (Characterization of statements of future events as "present intent" statements is generally limited to those cases where the defendant has control over the future event, as in this example.

Answer 208

In an action for intentional misrepresentation, plaintiff may recover ONLY if he has suffered ACTUAL PECUNIARY LOSS as a result of the reliance on the false statement. Most courts use a contract measure of damages--plaintiff may recover the "benefit of the bargain," i.e., the value of the property as represented less the value of the property as it actually is.

Answer 209

1. MISREPRESENTATION made by defendant in a BUSINESS OR PROFESSIONAL CAPACITY; 2. BREACH OF DUTY toward PARTICULAR PLAINTIFF; 3. CAUSATION 4. JUSTIFIABLE RELIANCE by plaintiff upon the misrepresentation; and 5. DAMAGES.

Answer 210

Commercial transaction, i.e., made by the defendant in a business or professional capacity.

Answer 211

Defendant under a duty of care only to those persons to whom the representation was made or to specific persons who defendant KNEW would rely on it. Foreseeability that the statement will be communicated to third persons may be sufficient to impose liability for deceit (aka intentional misrepresentation or fraud), but it does NOT suffice for negligent misrepresentation in most states.

Answer 212

1. Existence of a VALID CONTRACTUAL RELATIONSHIP between plaintiff and a third party or a VALID BUSINESS EXPECTANCY of plaintiff; 2. DEFENDANT'S KNOWLEDGE of the relationship or expectancy; 3. INTENTIONAL INTERFERENCE by defendant that induces a breach or termination of the relationship or expectancy; and 4. DAMAGE to plaintiff.

Answer 213

NOT LIMITED TO EXISTING CONTRACTS: plaintiff has a cause of action not only for interference with existing contracts but also for interference with probable future business relationships for which plaintiff has a reasonable expectation of financial benefit. Example: a real estate broker may have a cause of action against one who improperly diverts potential buyers of the property that the broker was selling.

Answer 214

Defendant must have intended to interfere with the existing or prospective contractual relationships of plaintiff. Most courts do not permit recovery for negligent interference with contract in the absence of some independent tort, such as negligent misrepresentation.

Answer 215

plaintiff must prove actual damage from the interference, but may also recover mental distress damages and punitive damages in appropriate cases.

Answer 216

An interferor's conduct may be privileged where there is a proper attempt to obtain business for the interferor or protect its interests. Example: a bank collecting on an existing promissory note is privileged to induce the debtor to pay it off, even if that will cause the debtor to fail to satisfy obligations owing to other parties.

Answer 217

1. Type of business relationship involved: Interference with a prospective business relationship that the plaintiff is pursuing is more likely to be privileged than interference with the plaintiff's existing contract with a third party. 2. Means of persuasion used: Interference using legitimate and commercially acceptable means of persuasion is more likely to be privileged than interference using illegal or threatening tactics. 3. Whether defendant is a competitor of plaintiff: Interference with the plaintiff's prospective business relationships is likely to be privileged if the defendant is a competitor of the plaintiff pursuing those same prospective customers. 4. Defendant's relationship with the Third party: Interference may be privileged if the defendant has responsibility for, or a financial interest in, the third party, or if the third party has sought the business advice of the defendant.

Answer 218

1. Malicious Prosecution; 2. Wrongful Civil Proceedings; 3. Abuse of Process

Answer 219

1. INSTITUTION OF CRIMINAL PROCEEDINGS against plaintiff; 2. Termination FAVORABLE TO PLAINTIFF; 3. ABSENCE OF PROBABLE CAUSE for prosecution; 4. IMPROPER PURPOSE of defendant (i.e., malice); and 5. DAMAGES

Answer 220

For liability to attach for malicious prosecution, the defendant must have initiated a CRIMINAL proceeding against the plaintiff, such as filing a police report to procure the plaintiff's arrest. The "initiation" of the proceeding can be warrant, arrest, indictment, etc. 1. Defendant must initiate proceedings: the defendant must have initiated the proceedings himself. Simply giving the full story to the prosecutor, whereupon the prosecutor decides to prosecute, is not sufficient for a later malicious prosecution action against the informer in most states. 2. Prosecuting attorney's privileged: Prosecuting attorney's are absolutely privileged and cannot be sued for malicious prosecution (even when they acted in bad faith and without probable cause).

Answer 221

The plaintiff may bring such an action only if the prior proceedings were terminated in her favor; e.g., she was acquitted, the case was dismissed, the charges were dropped, etc. The termination must demonstrate the innocence of the accused.

Answer 222

To recover, the plaintiff must establish that the defendant initiated the prior proceedings without probable cause. She may do so by showing EITHER 1. that there were insufficient facts for a reasonable person to believe that the plaintiff was guilty; OR 2. that the defendant did not actually believe the plaintiff to be guilty. 1. Effect of Indictment: Note that indictment by a grand jury is prima facie evidence of probable cause. However, failure of a grand jury to indict is NOT evidence that there was no probable cause. 2. Prior Action Based on Advice: If defendant instituted the prior proceedings on advice of counsel after full disclosure of the facts, this establishes probable cause.

Answer 223

For purposes of malicious prosecution, the malice or improper purpose element of the prima facie case is satisfied when it is shown that defendant's primary purpose in instituting the prior action was something other than bringing a person to justice.

Answer 224

Damages must be PROVED. Plaintiff may recover damages for all harms that are the proximate result of defendant's wrong, e.g., expenses in defending criminal suit, embarrassment, etc. Punitive damages are often awarded, since defendant's improper purpose is, of course, already proved to establish the case.

Answer 225

In a false arrest situation, the false arrest itself is illegal, e.g., made without a valid warrant. In a malicious prosecution situation, the arrest itself is carried out in a lawful manner, but is pursuant to a maliciously instituted prosecution.

Answer 226

Most jurisdictions have extended the malicious prosecution action to encompass wrongfully instituted civil cases. The same general rules govern as apply in malicious prosecution. However, the lack of probable cause is harder to show in civil actions because reasonable people would more readily file a doubtful case where the only consequence to the person sued are civil.

Answer 227

A tort to use any form of process--civil or criminal--to bring about a result other than that for which the form of process was intended; e.g., defendant garnished an account to force plaintiff to sign a lease. The prima facie elements of the action are (1) the wrongful use of the process for an ulterior purpose, and 2. some definite act or threat against plaintiff to accomplish the ulterior purpose.

Answer 228

If the defendant uses the particular machinery of the law for the immediate purpose for which it was designed, he is not liable for abuse of process nothwithstanding any malicious intent. Abuse of process is not the wrongful institution of the action or proceeding, but rather, the improper use of process in connection therewith. Hence, the merits of the action itself are of no relevance. In contrast to malicious prosecution, therefore, neither want of probable cause nor favorable termination are elements of the tort.

Answer 229

Defendant's liability to P2 will depend upon whether the Andrews or Cardozo view in Palsgraf is adopted. Most courts considering this issue have followed the Cardozo view.

Answer 230

According to the Andrew's view in Palsgraf, the second plaintiff may establish the existence of a duty extending from the defendant to her by showing that the defendant has breached a duty he owed plaintiff one. In short, defendant owed a duty of care to ANYONE who suffers injuries as a proximate result of his breach of duty to SOMEONE.

Answer 231

According to the Cardozo view in Palsgraf, the second plaintiff an recover only if she can establish that a reasonable person would have foreseen the risk of injury to her in the circumstances, i.e., that she was located in a foreseeable "zone of danger."

Answer 232

Prenatal injuries are actionable; i.e., a duty of care is owed toward a fetus. The fetus must have been VIABLE at the time of injury. (Most states also permit a wrongful death action if the fetus dies from the injuries.)

Answer 233

In most states, the failure to diagnose a congenital defect of the fetus or to properly perform a contraceptive procedure does NOT permit the unwanted child to recover damages for "wrongful life," even if the child is born handicapped.

Answer 234

The child's parents DO have an action either for failure to diagnose the defect (wrongful birth) or for failure to properly perform a contraceptive procedure (wrongful pregnancy). The mother can recover damages for the unwanted labor (medical expenses and pain and suffering). If the child has a defect, parents may recover the additional medical expenses to care for the child and, in some states, damages for emotional distress. If the child is born healthy in a wrongful pregnancy case, most cases do NOT permit the parents to recover child-rearing expenses, just damages for unwanted labor.

Answer 235

A third party for whose economic benefit a legal or business transaction is made (e.g., the beneficiary of a will) is owed a duty of care if the defendant could reasonably foresee harm to that party if the transaction is done negligently.

Answer 236

A doctor proposing a course of treatment or a surgical procedure has a duty to provide the patient with enough information about its risks to enable the patient to make an INFORMED CONSENT to the treatment. If an undisclosed risk was serious enough that a reasonable person in the patient's position would have withheld consent to the treatment, the doctor has breached this duty.

Answer 237

Common carriers and innkeepers are required to exercise a very high degree of care toward their passengers and guests; i.e., they are LIABLE FOR SLIGHT NEGLIGENCE.

Answer 238

In most jurisdictions today, the duty owed by the driver of an automobile to a rider is one of ordinary care. Guest statutes: a few states have guest statutes. Under these statutes, the driver's only duty to a nonpaying rider is to REFRAIN FROM GROSS OR WANTON AND WILLFUL MISCONDUCT. Note that guest statutes do not apply to "passengers," i.e., riders who contribute toward the expense of the ride; they are owed a duty of ordinary care.

Answer 239

In a bailment relationship, the bailor transfers physical possession of an item of personal property to the bailee without a transfer of title. The bailee acquires the right to possess the property in accordance with the terms of the bailment. A bailment obligates the bailee to return the item of personal property to the bailor or otherwise dispose of it according to the bailment terms. Example: when the owner of a computer delivers it to a technician to be repaired, the technician becomes a bailee of the computer and the owner is the bailor.

Answer 240

1. Sole Benefit of Bailor Bailment: If the bailment is for the sole benefit of the bailor (e.g., the bailor asks his neighbor (the bailee) to take in the bailor's mail while he is on vacation), the bailee is liable only for GROSS NEGLIGENCE. 2. Sole Benefit of Bailee Bailment: If the bailment is for the sole benefit of the bailee (e.g., the bailor gratuitously loans her lawnmower to the bailee), the bailee is liable even for SLIGHT NEGLIGENCE. 3. Mutual Benefit Bailments: If the bailment is for the mutual benefit of the bailore and bailee, the bailee must exercise ORDINARY DUE CARE. 4. Modern Trend: Today the trend is away from such classifications and toward a rule that considers whether the bailee exercised ordinary care under all the circumstances. These circumstances include, e.g., value of the goods, type of bailment, custom of a trade, etc.

Answer 241

1. Sole Benefit of Bailee Bailments: If the bailment is for the sole benefit of the bailee (e.g., the bailor gratuitously loans her lawnmower to the bailee), the bailor need only inform the bailee of known dangerous defects in the chattel. There is no duty with regard to unknown defects. 2. Bailments for hire: If the bailment is for hire (e.g., the bailor owes a duty to inform the bailee of defects known to him, or of which he would have known by the exercise of reasonable diligence.

Answer 242

The existence of an emergency, presenting little time for reflection, may be considered as among the circumstances under which the defendant acted; i.e., he must act as the reasonable person would under the same emergency. The emergency may NOT be considered, however, if it is of the defendant's own making.

Answer 243

In this section, duty problems are resolved by application of special rules that have been developed imposing duties on individuals because of their relationship to property. In some cases, the duty of the owner or occupier depends on whether the injury occurred on or off the premises; in others it depends on the legal status of the plaintiff with regard to the property, i.e., trespasser, licensee, or invitee.

Answer 244

The general rule is that a landowner owes NO DUTY to protect one outside the premises from natural conditions on the land. Note: an exception exists for decaying trees next to sidewalks or streets in urban areas.

Answer 245

As a general rule, there is NO DUTY owed for artificial conditions. Two major EXCEPTIONS exist: 1. Unreasonably Dangerous Conditions: a landowner is liable for damage cause by unreasonably dangerous artificial conditions or structures abutting adjacent land. 2. Duty to Protect Passerbys: A landowner also has a duty to TAKE DUE PRECAUTIONS to protect persons passing by from dangerous conditions, e.g., by erecting a barricade to keep people from falling into an excavation at the edge of the property.

Answer 246

An owner of land has a duty to exercise reasonable care with respect to his own activities on the land and to control the conduct of others on his property so as to avoid unreasonable risk of harm to others outside the property.

Answer 247

In most jurisdictions, the nature of a duty owed by an owner or occupier of land to those on the premises for dangerous conditions on the land depends on the legal status of the plaintiff in regard to the property, i.e., trespasser, licensee, or invitee.

Answer 248

1. Physical Characteristics--Same as defendant's: individual physical handicaps are considered (but defendant should recognize his own limitations due to that handicap). 2. Average Mental Ability: individual handicaps are not considered (low IQ no excuse) 3. Same Knowledge as Average Member of Community: deemed to have knowledge of things known by the average member of the community, e.g., fire is hot. (Defendant with knowledge superior to that of the average person is required to use that knowledge.)

Answer 249

A trespasser is one who comes onto the land without permission or privilege.

Answer 250

A landowner owes NO DUTY to an undiscovered trespasser. He has no duty to inspect in order to ascertain whether persons are coming onto his property.

Answer 251

Once a landowner discovers the presences of a trespasser, he is under a duty to exercise ordinary care to WARN the trespasser of, or to MAKE SAFE ARTIFICIAL CONDITIONS known to the landowner that involves a RISK OF DEATH OR SERIOUS BODILY HARM and that the trespasser is unlikely to discover. There is no duty owed for natural conditions and less dangerous artificial conditions. The owner or occupier also has a duty to exercise reasonable care in the exercise of ACTIVE OPERATIONS on the property.

Answer 252

A trespasser is discovered when she is actually noticed on the property by the owner or occupier. But in addition, a trespasser is viewed as discovered if the owner or occupier is notified by information sufficient for a reasonable person to conclude that someone is on the property.

Answer 253

The majority of states now treat anticipated trespassers on generally the same basis as discovered trespassers in terms of the duty owed them by the landowner.

Answer 254

An "anticipated trespasser" situation arises where the landowner knows or should reasonably know of the presence of trespassers who constantly cross over a section of his land. (Although note that if the owner has posted "no trespassing" signs, this might serve to convert these "anticipated" trespassers into "undiscovered" trespassers.

Answer 255

Most courts impose upon a landowner the duty to exercise ORDINARY CARE to avoid a reasonably foreseeable risk of harm to children cause by artificial conditions on his property. Under the general rule, to assess this special duty upon the owner or occupier of land with regard to children on his property, the plaintiff must show the following: 1. There is a dangerous condition present on the land of which the owner is or should be aware; 2. The owner knows or should know that young persons frequent the vicinity of this dangerous condition; 3. The condition is likely to cause injury, i.e., is dangerous, because of the child's inability to appreciate the risk; and 4. The expense of remedying the situation is slight compared with the magnitude of the risk.

Answer 256

A dangerous condition exists where something on the land is likely to cause injury to children because of their inability to appreciate the risk. This usually is an artificial condition, but in some circumstances a natural condition might suffice.

Answer 257

To abandoned automobiles, lumber piles, sand bins, and elevators. Bodies of water are generally not dangerous conditions because the dangers are viewed as obvious and well-known. If, however, a body of water contains elements of unusual danger to children, it may be characterized as a dangerous condition, e.g., logs or plants floating in water, or a thick scum that appears to be a path on the water.

Answer 258

Under the traditional "attractive nuisance" doctrine, it was necessary for the child/plaintiff to establish that she was lured onto the property by the attractive nuisance/dangerous condition. This is no longer the case. Most jurisdictions have substantially revised their attractive nuisance doctrines to bring them within general negligence concepts. Foreseeability of harm to a child is the true basis of liability and the element of attraction is important only insofar as it indicates that the presence of children should have been anticipated by the landowner.

Answer 259

While employees and independent contractors acting on behalf of the landowner have the status of the landowner, persons with an easement or license to use the land do not; they must exercise reasonable care to protect the trespasser. Example: Power Company obtains an easement from Leonard to run high-tension wires across Leonard's land. Because of Power Company's negligent failure to maintain the wires, one of them falls and injures Plaintiff, an undiscovered trespasser on Leonard's land. Power Company is liable to Plaintiff.

Answer 260

A licensee is one who enters the land with the landowner's permission, express or implied, for her OWN PURPOSE OR BUSINESS rather than for the landowner's benefit.

Answer 261

The owner or occupier of land has a DUTY TO WARN the licensee of a dangerous condition KNOWN to the owner or occupier that creates an unreasonable risk of harm to the licensee AND that the licensee is unlikely to discover. The owner or occupier has NO DUTY to a licensee TO INSPECT for defects NOR TO REPAIR known defects. The owner or occupier also has a duty to EXERCISE REASONABLE CARE in the conduct of "active operations" for the protection of the licensee whom he knows to be on the property.

Answer 262

The social guest is a licensee. Performance of minor services for the host does not make the guest an invitee.

Answer 263

An invitee is a person who enters onto the premises in response to an express or implied invitation of the landowner.

Answer 264

1. Those who enter as members of the public for a purpose for which the land is HELD OPEN TO THE PUBLIC, e.g., museums, churches, airports; and 2. Those who enter for a purpose CONNECTED WITH THE BUSINESS or other interests of the landowner or occupier, e.g., store customers and persons accompanying them, employees, persons making deliveries, etc.

Answer 265

A person loses her status as an invitee if she exceeds the scope of the invitation--if she goes into a portion of a the premises where her invitation cannot reasonably be said to extend. (Note: the invitation normally does extend to the entrance and steps of a building.)

Answer 266

Landowner owes a invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This general duty includes the DUTIES OWED TO LICENSEES (to warn of nonobvious, dangerous conditions known to the landowner and to use ordinary care in active operations on the property) PLUS A DUTY TO MAKE REASONABLE INSPECTIONS to discover dangerous conditions and, thereafter, to make them safe. The requirement to "make safe" dangerous conditions usually is satisfied if a reasonable warning has been given. A duty to warn does not exist when the dangerous condition is so obvious that the invitee should reasonably have been aware of it. "Obviousness" is determined by all of the surrounding circumstances.

Answer 267

In almost all states, a different standard applies by statute to users of recreatonal land. If an owner or occupier of open land permits the public to use the land for recreational purposes WITHOUT CHARGING A FEE, the landowner 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 268

Strong minority of states have abolished the distinction between licensees and invitees and simply apply a reasonable person standard to dangerous conditions on the land. A few of these states have gone even further and abolished the trespasser distinction as well.

Answer 269

Ordinarily, tort liability in regard to conditions on the property is an INCIDENT OF OCCUPATION AND CONTROL. Thus, whatever portion the owner leases to another, the lessee, coming into occupation and control, becomes burdened with the duty to maintain the portion in such a way as to avoid unreasonable risk of harm to others. Even where the lessor has liability for dangerous conditions on the premises, the tenant is not relieved of liability for injuries to third persons from the dangerous conditions within the tenant's control.

Answer 270

Lessor is obligated to give WARNING to the lessee of EXISTING DEFECTS in the premises of which the lessor is aware, or has reason to know, and which he knows the lessee is not likely to discover on reasonable inspection.

Answer 271

If the lessor has covenanted to make repairs and reserves the right to enter the leased premises for the purpose of inspecting for defects and repairing them, he is subject to LIABILITY FOR UNREASONABLY DANGEROUS CONDITIONS.

Answer 272

If the lessor, though under no obligation to make repairs, does so, he is subject to liability if he does so NEGLIGENTLY, failing to cure the defect; it is not necessary that his negligent repairs make the condition worse.

Answer 273

If the lessor leases the premises knowing that the lessee intends to admit the public, the lessor is subject to LIABILITY FOR UNREASONABLY DANGEROUS CONDITIONS EXISTING AT THE TIME HE TRANSFERS POSSESSION where the nature of the defect and length and nature of the lease indicate that the tenant will not repair. This liability continues until the defect is actually remedied. A mere warning to the lessee concerning the defect is NOT sufficient.

Answer 274

The vendor, at the time of transfer of possession to the vendee, has the DUTY TO DISCLOSE concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and of which he knows the vendee is ignorant and is not likely to discover on reasonable inspection. The vendor's responsibility continues until the vendee should have, in the exercise of reasonable care in inspection and maintenance, discovered and remedied the defect.

Answer 275

The precise standard of care in a common law negligence case may be established by proving the applicability to that case of a statute providing for a CRIMINAL penalty. If this is done, the statute's specific duty will replace the more general common law duty of due care.

Answer 276

1. Plaintiff within a protected class: plaintiff must show that she is in the class intended to be protected by the statute; 2. Particular harm to be avoided: the plaintiff must show that the statute was designed to prevent the type of harm that the plaintiff suffered. 3. Standards clearly defined: The statute must be clear as to what standard of conduct is expected, where and when it is expected, and of whom it is expected.

Answer 277

Violation of some statutes may be excused: 1. Where COMPLIANCE WOULD CAUSE MORE DANGER than violation; e.g., defendant drives onto wrong side of road to avoid hitting children who dart into his path; or 2. Where COMPLIANCE WOULD BE BEYOND DEFENDANT'S CONTROL; e.g., blind pedestrian crosses against light.

Answer 278

Most courts still adhere to the rule that violation of a statute is "negligence per se." This means that plaintiff will have established a CONCLUSIVE PRESUMPTION OF DUTY AND A BREACH OF DUTY. (Plaintiff must still establish causation and damages to complete the prima facie case for negligence.) A significant MINORITY of courts, however, are unwilling to go this far. They hold either than (i) a rebuttable presumption as to duty and breach thereof arise, or (ii) the statutory violation is only prima facie evidence of negligence.

Answer 279

Where the statute in question provides for a civil remedy, plaintiff will sue directly under the statute; i.e., it is not a common law negligence case.

Answer 280

A 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 must satisfy two requirements to prevail: (i) plaintiff must be within the "zone of danger"; and (2) plaintiff must suffer physical symptoms from the distress.

Answer 281

The plaintiff usually must show that her distress has been caused by a threat of physical impact; i.e., she was within the "zone of danger."

Answer 282

For the plaintiff to recover damages, most courts require that the defendant's conduct cause the plaintiff's emotional distress that manifests itself in PHYSICAL SYMPTOMS (e.g., nervous breakdown, miscarriage, or heart attack, but note that severe shock to the nervous system that causes physical symptoms will satisfy the requirement). Emotional distress without physicalsymptoms is insufficient in most jurisdictions.

Answer 283

Traditionally, a bystander outside the "zone of danger" of physical injury who sees the defendant negligently injuring another could not recover damages for her own distress. A majority of states now allow recovery in these cases as long as: 1. the plaintiff and the person injured by the defendant are CLOSELY RELATED; 2. THE PLAINTIFF WAS PRESENT at the scene of the injury, and 3. the plaintiff PERSONALLY OBSERVED OR PERCEIVED the event. Most of these states still require physical symptoms, but the modern trend is to drop that requirement.

Answer 284

The defendant may be liable for directly causing the plaintiff severe emotional distress that leads to physical symptoms when a duty arises from the relationship between the plaintiff and the defendant, such that the defendant's negligence has a great potential to cause emotional distress.

Answer 285

The plaintiff may be able to recover without proving the two requirements for this tort in special situations where the defendant's negligence creates a great likelihood of emotional distress. These include a defendant providing an erroneous report that a relative of the plaintiff has died or a defendant mishandling a relative's corpse.

Answer 286

No Duty to Act: As a general matter, no legal duty is imposed on any person to affirmatively act for the benefit of others. This general rule is, however, subject to exception.

Answer 287

One who gratuitously acts for the benefit of another, although under no duty to do so in the first place, is then under a duty to act like an ordinary, prudent, reasonable person and continue assistance.

Answer 288

A number of states have enacted statutes exempting licensed doctors, nurses, etc., who voluntarily and gratuitously render emergency treatment, from liability for ordinary negligence. Liability still exists for gross negligence.

Answer 289

One who conduct (whether negligent or innocent) places another in a position of peril is under a duty to use reasonable care to aid or assist that person.

Answer 290

A defendant having a special relationship to the plaintiff (e.g., parent-child, employer-employee) may be liable for failure to act if the plaintiff is in peril.

Answer 291

Common carriers are under a duty to use reasonable care to aid or assist passengers.

Answer 292

Innkeepers, restauranteurs, shopkeepers, and others who gather the public for profit have a duty to use reasonable care to aid or assist their patrons and to prevent injury to them from third persons.

Answer 293

1. Nonfeasance--No duty: In general, for mere nonfeasance, there is no tort duty of care, regardless of whether the defendant promises to undertake action gratuitously or for consideration. Liability for breach of contract extends only to parties in privity. 2. Misfeasance--Duty of Care Required: Failure to perform with due contractual obligations owed to one may give rise to violation of a legal duty.

Answer 294

Generally, there is no duty to prevent a third person from injuring another. In some situations, however, such an affirmative duty might be imposed. In such cases, it must appear that the defendant had the ACTUAL ABILITY and AUTHORITY to control the third person's action. Thus, for example, bailors may be liable for the acts of their bailees, parents may be liable for the acts of their children, employers may be liable for the acts of their employees, etc. It is generally required for imposition of such a duty that the defendant KNOWS or SHOULD KNOW that the third person is likely to commit such acts as would require the exercise of control by the defendant.

Answer 295

Where the defendant's conduct falls short of that level required by the applicable standard of care owed to the plaintiff, she has breached her duty. Whether the duty of care is breached in an individual case is a question for the trier of fact.

Answer 296

Twofold: 1. Must be shown what in fact happened; 2. Must be shown from those facts that the defendant acted unreasonably. Proof of what happened may be shown by either direct or circumstantial evidence. Other matters may also be offered into evidence to establish the standard by which defendant's conduct is to be measured, e.g., custom or usage, applicability of statute, etc.

Answer 297

Custom or usage may be introduced to establish the standard of care in a given case. However, customary methods of conduct do not furnish a test that is conclusive for controlling the question of whether certain conduct amounted to negligence.

Answer 298

As we have seen above, the existence of a duty owed to plaintiff and breach thereof may be established by proof that the defendant violated an applicable statute.

Answer 299

The circumstantial evidence doctrine of res ipsa loquitor ("the thing speaks for itself") deals with those situations where the fact that a particular injury occurred may itself establish or tend to establish a breach of a duty owed. Where the facts are such as to strongly indicate that plaintiff's injuries resulted from defendant's negligence, the trier of fact may be permitted to infer defendant's liability.

Answer 300

1. Inference of Negligence: Plaintiff must establish that the accident causing his injury is the type that would not normally occur unless someone was negligent. 2. Negligence Attributable to Defendant: Plaintiff must establish evidence connecting defendant with the negligence in order to support a finding of liability, i.e., evidence that this type of accident ordinarily happens because of the negligence of someone in defendant's position. This requirement often can be satisfied by showing that the instrumentality that caused the injury was in the exclusive control of defendant, although actual possession of the instrumentality is not necessary. 3. Plaintiff's Freedom from Negligence: Plaintiff must also establish that the injury was not attributable to him, but may do so by his own testimony.

Answer 301

Where more than one person may have been in control of the instrumentality, res ipsa loquitor generally may NOT be used to establish a prima facie case of negligence against any individual party. Compare: the doctrine would be available where a particular defendant had the power of control over the site of injury. For example, Plaintiff sues Surgeon after a sponge was left in the body at the site of the surgery. Even though Surgeon left it to her assistant to remove the sponges and close up the wound, her responsibility and power of control over the surgery itself allows Plaintiff to use res ipsa loquitor against her.

Answer 302

1. No Directed Verdict for Defendant: The doctrine, where applicable, does not change the burden of proof, nor does it create a presumption of negligence. Where the res ipsa element has been proved, the plaintiff has made a prima facie case and not directed verdict may be given the defendant. 2. Effect of Defendant's Evidence of Due Care: However, the effect of defendant's evidence that due care was exercised has the same effect in a res ipsa case as in all other cases. If the jury rejects the defendant's evidence and draws the permissible inference of negligence, it will find for the plaintiff. If defendant's evidence overcomes the permissible inference that may be drawn from the res ipsa proof, the jury may find for the defendant. Such a finding for the defendant may result even where defendant rests without offering evidence on the same issue if the jury elects not to infer negligence.

Answer 303

aka Causation in Fact Before the defendant's conduct can be considered a proximate cause of plaintiff's injury, it must first be a CAUSE IN FACT of the injury.

Answer 304

1. "But For" Test 2. Joint Causes--Substantial Factor Test 3. Alternative Causes Approach

Answer 305

An act or omission to act is the cause in fact of an injury when the injury would not have occurred BUT FOR the act.

Answer 306

The "but for" test applies where several acts combine to cause the injury, but none of the acts standing alone would have been sufficient (e.g., tow negligently driven cars collide, injuring a passenger). But for any of the acts, the injury would not have occurred.

Answer 307

Where several causes concur to bring about an injury--and any one alone would have been sufficient to cause the injury--it is sufficient if defendant's conduct was a "substantial factor" in causing the injury.

Answer 308

Burden of Proof Shifts to Defendants: A problem of causation exists where two or more persons have been negligent, but uncertainty exists as to which one caused plaintiff's injury. Under the alternative causes approach, plaintiff must prove that harm has been caused to him by one of them (with uncertainty as to which one). The burden of proof then shifts to defendants, and each must show that his negligence is not the actual cause.

Answer 309

Alternative Cause Approach has been extended in some cases to encompass industry groups.

Answer 310

aka Legal Causation In addition to being a cause in fact, the defendant's conduct must also be a proximate cause of the injury. Not all injuries "actually" caused by defendant will be deemed to have been proximately caused by his acts. Thus, the doctrine of proximate cause is a LIMITATION OF LIABILITY and deals with liability or nonliability for unforeseeable or unusual consequences of one's acts.

Answer 311

The general rule of proximate cause is that defendant is liable for all harmful results that are THE NORMAL INCIDENTS OF AND WITHIN THE INCREASED RISK CAUSED BY his acts. In other words, if one of the reasons that make defendant's act negligent is a greater risk of a particular harmful result occurring, and that harmful result does not occur, defendant generally is liable. This test is based on FORESEEABILITY.

Answer 312

A direct cause case is one where the facts present an UNINTERRUPTED CHAIN of events from the time of defendant's negligent act to the time of plaintiff's injury. In short, there is no external intervening force of any kind.

Answer 313

DEFENDANT LIABLE: If a particular harmful result was at all foreseeable from defendant's negligent conduct, the unusual manner in which the injury occurred or the unusual timing of cause and effect is irrelevant to defendant's liability.

Answer 314

DEFENDANT NOT LIABLE: In the rare case where defendant's negligent conduct creates a risk of a harmful result, but an entirely different and totally unforeseeable type of harmful result occurs, most courts hold that defendant is not liable for that harm.

Answer 315

An indirect cause case is one where the facts "indicate that a force came into motion AFTER the time of defendant's negligent act and combined with the negligent act to cause injury to plaintiff. In short, indirect cause cases are those where INTERVENING FORCES are present. Whether an intervening force will cut off defendant's liability for plaintiff's injury is determined by foreseeability.

Answer 316

DEFENDANT LIABLE Where defendant's negligence caused a foreseeable harmful response or reaction from an intervening force or created a foreseeable risk that an intervening force would harm plaintiff, defendant is liable for the harm caused.

Answer 317

1. Dependent Intervening Forces | 2. Independent Intervening Forces

Answer 318

Dependent intervening forces are normal responses or reactions to the situation created by defendant's negligent act. DEPENDENT INTERVENING FORCES ARE ALMOST ALWAYS FORESEEABLE.

Answer 319

1. Subsequent Medical Malpractice 2. Negligent Rescuers 3. Efforts to Protect Person or Property 4. "Reaction" Forces 5. Subsequent Disease 6. Subsequent Accident

Answer 320

Independent intervening forces also operate on the situation created by defendant's negligence but are independent actions rather than natural responses or reactions to the situation. Independent intervening forces may be foreseeable where DEFENDANT'S NEGLIGENCE INCREASED THE RISK THAT THESE FORCES WOULD CAUSE HARM to the plaintiff.

Answer 321

1. Negligent Acts of Third Persons; 2. Criminal Acts and Intentional Torts of Third Persons; 3. Acts of God

Answer 322

Defendant is liable for harm caused by the negligence of third persons where such negligence was a foreseeable risk created by defendant's conduct.

Answer 323

If defendant's negligence created a foreseeable risk that a third person would commit a crime or intentional tort, defendant's liability will not be cut off by the crime or tort.

Answer 324

Acts of God will NOT cut off defendant's liability if they are foreseeable. example: wind blows hammer off roof when it was left negligently by D

Answer 325

DEFENDANT USUALLY LIABLE Defendant is negligent because his conduct threatens a result of a particular kind that will injure plaintiff. This result is ultimately produced by an UNFORESEEABLE intervening force. Most courts would generally find liability here because they give a greater weight to foreseeability of result than to foreseeability of the intervening force. An exception exists, however, where the intervening force is an unforeseeable CRIME or INTENTIONAL TORT of a third party; it will be a SUPERSEDING FORCE that cuts off defendant's liability.

Answer 326

DEFENDANT NOT LIABLE Most intervening forces that produce unforeseeable results are considered to be unforeseeable intervening forces. Similarly, most results caused by foreseeable intervening forces are treated as foreseeable results. In the rare case where a foreseeable intervening force causes a totally unforeseeable result, most courts would not hold the defendant liable.

Answer 327

DEFENDANT NOT LIABLE As a general rule, intervening forces that produce unforeseeable results, (i.e., results that were not within the increased risk created by a defendant's negligence) will be deemed to be unforeseeable and SUPERSEDING. A superseding force is one that serves to BREAK THE CAUSAL CONNECTION between defendant's initial negligent act and the ultimate injury, and itself becomes a direct, immediate cause of the injury. Thus, defendant will be relieved of liability for the consequences of his antecedent conduct.

Answer 328

DEFENDANT LIABLE In both direct cause and indirect cause cases, the fact that the extent or severity of the harm was not foreseeable does not relieve defendant of liability; i.e., the tortfeasor takes his victim as he finds him. This is also known as the eggshell-skull plaintiff rule. Thus, where the defendant's negligence causes an aggravation of plaintiff's existing physical or mental illness, defendant is liable for the damages caused by the aggravation.

Answer 329

Damages is an essential element of plaintiff's prima facie case for negligence. This means ACTUAL harm or injury. Unlike the situation for some of the intentional torts, damage will not be presumed. Thus, nominal damages are not available in an action in negligence; some proof of harm must be offered.

Answer 330

1. personal injury; 2. property damage; 3. punitive damage; 4. nonrecoverable items

Answer 331

Plaintiff is to be compensated for ALL his damages (past, present, and prospective), both special and general. This includes fair and adequate compensation for ECONOMIC DAMAGES, such as medical expenses and lost earnings, and NONECONOMIC DAMAGES such as pain and suffering. Plaintiff is also entitled to compensation for impaired future earning capacity, discounted to present value, so as to avoid an excess award; i.e., plaintiff receives an amount that, if securely invested, would produce the income that the jury wishes him to have.

Answer 332

FORESEEABILITY IRRELEVANT Generally not necessary to foresee the extent of the harm. In other words, a tortfeasor takes the victim as he finds him.

Answer 333

Plaintiff's noneconomic damages include damages for any emotional distress suffered as a result of the physical injury.

Answer 334

The measure of damages for property damage is the reasonable COST OF REPAIR, or, if the property has been almost or completely destroyed, its FAIR MARKET VALUE at the time of the accident.

Answer 335

In addition to the various types of compensatory damages discussed above, plaintiff may also be able to recover punitive damages in most jurisdictions if defendant's conduct was "wanton and willful," reckless, or malicious.

Answer 336

Certain items are not recoverable as damages in negligence actions. These include: 1. Interest from date of damage in personal injury action; and 2. Attorney's fees

Answer 337

As in all cases, the plaintiff has a duty to take reasonable steps to mitigate damages--in property damage cases to preserve and safeguard the property, and in personal injury cases to seek appropriate treatment to effect a cure or healing and to prevent aggravation. Failure to mitigate precludes recovery of additional damages caused by aggravation of the injury.

Answer 338

As a general rule, damages are not reduced or mitigated by reason of benefits received by plaintiff from other sources, e.g., health insurance, sick pay from employer. Hence, at trial, defendants may not introduce evidence relating to any such financial aid from other sources. A growing number of states have made exceptions to this rule in certain types of actions (e.g., medical malpractice actions), allowing defendants to introduce evidence of insurance awards or disability benefits.

Answer 339

actions based on intentional torts

Answer 340

1. Contributory Negligence 2. Assumption of Risk 3. Comparative Negligence

Answer 341

1. General rule: the standard of care is the same as that for ordinary negligence.

Answer 342

A plaintiff may take extraordinary risks when attempting a rescue without being considered contributorily negligent. The emergency situation is one of the factors taken into account when evaluating the plaintiff's conduct.

Answer 343

It may contributorily negligent to fail to remove oneself from danger, e.g., remaining in a car with a drunk driver.

Answer 344

Plaintiff's contributory negligence may be established by his violation of a statute under the same rules that govern whether a statute can establish defendant's negligence.

Answer 345

Contributory negligence is ordinarily a defense to negligence proved by defendant's violation of an applicable statute. But where the defendant's negligence arose from violation of a statute designed to protect this particular class of plaintiffs from their own incapacity and lack of judgment, then plaintiff's contributory negligence is NOT a defense.

Answer 346

As we have see, plaintiff owes a duty to mitigate damages to person or property after the damage is inflicted. If he does not properly do this, then damages will be reduced. Failure to do this, however, is an avoidable consequence, not contributory negligence.

Answer 347

Contributory negligence is never a defense to an action for an intentional tort or for willful or wanton misconduct.

Answer 348

At common law, plaintiff's contributory negligence completely barred his right to recover. This was so even though the degree of defendant's negligence was much greater than that of plaintiff. The severe consequence of strict application of contributory negligence rules initially caused courts to develop "escape" doctrines, such as LAST CLEAR CHANCE. More recently, however, most jurisdictions have rejected entirely the "all or nothing" approach of contributory negligence in favor of a COMPARATIVE NEGLIGENCE system.

Answer 349

The doctrine of last clear chance, sometimes called "the humanitarian doctrine," permits the plaintiff to recover DESPITE his own contributory negligence. Under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence. (In effect, last clear chance is plaintiff's rebuttal against the defense of contributory negligence.)

Answer 350

Many cases distinguish between "helpless" and "inatttentive" peril situations in applying last clear chance rules. Helpless peril: Helpless peril exists where plaintiff, through his contributory negligence, puts himself into a position of actual peril from which he cannot extricate himself. In many states, defendant is liable under these circumstances if she had either ACTUAL knowledge of plaintiff's predicament or if she SHOULD HAVE KNOWN of plaintiff's predicament. Other states require actual knowledge. Inattentive Peril: Inattentive peril exists where plaintiff, through his own negligence, is in a position of actual peril from which he could extricate himself if he were attentive. Almost all courts require ACTUAL knowledge of plaintiffs predicament on defendant's part.

Answer 351

For last clear chance to operate, defendant must have been able to avoid harming plaintiff AT THE TIME OF THE ACCIDENT. In short, defendant must have had the "last clear chance" to avoid the accident. Hence, if defendant's only negligence had occurred earlier, e.g., she negligently failed to have the steering wheel fixed, the courts will not apply last clear chance.

Answer 352

Negligence of one party charged to another. Example: Driver and Passenger are involved in an automobile accident with Cyclist. Driver is negligent; Cyclist is also negligent. Passenger, who is injured, brings an action against Cyclist. Cyclist argues that liability should be denied because of Driver's negligence to the same extent as if Passenger had been negligent himself. This is the concept of "imputed" contributory negligence.

Answer 353

Plaintiff May Proceed Against Both Negligent Parties As a general rule, a plaintiff's action for his damages is NOT barred by imputed contributory negligence. He may proceed against both negligent parties as joint tortfeasors to the extent that each is a legal cause of the harm.

Answer 354

Contributory negligence will be imputed ONLY where the plaintiff and the negligent person stand in such a relationship to each other that the courts find it proper to charge plaintiff with the person's negligence, i.e., where plaintiff would be found VICARIOUSLY liable for the negligent person's conduct if a third party had brought the action.

Answer 355

The contributory negligence of the employee or agent acting within the scope of employment will be imputed to the employer or principle when the latter is a plaintiff suing a third person.

Answer 356

The contributory negligence of one partner or joint venturer will be imputed to the other when the other is a plaintiff suing a third person.

Answer 357

The contributory negligence of one spouse will NOT be imputed to the other when the other is a plaintiff suing a third person.

Answer 358

The contributory negligence of the parent or guardian is not imputed to the child, nor is the contributory negligence of the child imputed to the parent in actions against a third party.

Answer 359

Unless the automobile owner would be vicariously liable for the driver's negligence (because, e.g., the driver was an employee within the scope of employment), the contributory negligence of the driver will NOT be imputed to her. (Remember, in situations where the owner is a passenger, she may be liable for her OWN NEGLIGENCE in not preventing the accident.

Answer 360

A plaintiff may be denied recovery if he assumed the risk of any damage caused by the defendant's acts. This assumption may be expressed or implied. To have assumed risk, either expressly or impliedly, the plaintiff must have KNOWN OF THE RISK and VOLUNTARILY assumed it. It is irrelevant that plaintiff's choice is unreasonable.

Answer 361

Plaintiff must have known of the risk. Knowledge may be implied where the risk is one that the average person would clearly appreciate, e.g., risk of being hit by a foul ball in a baseball game.

Answer 362

The plaintiff must voluntarily go ahead in the face of the risk. However, plaintiff may not be said to have assumed the risk where there is no available alternative to proceeding in the face of the risk, e.g., the only exit from a building is unsafe.

Answer 363

Because of public policy considerations, the courts uniformly hold that some risks may not be assumed. These include: 1. Common carriers and public utilities are not permitted to limit their liability for personal injury by a disclaimer on, e.g., a ticket, a posted sign, etc. 2. When a statute is enacted to protect a class, members of that class will not be deemed to have assumed any risk 3. Risks will not be assumed in situations involving fraud, force, or an emergency. Thus, for example, one could take action to save his person or property without a risk unless his actions involve an unreasonable risk out of proportion to the value of those rights. 3. Risks will not be assumed in situations involving fraud, force, or an emergency. Thus, for example, one could take action to save his person or property without assuming a risk unless his actions involve an unreasonable risk out of proportion to the value of those rights.

Answer 364

The risk may be assumed by express agreement. Such exculpatory clauses in a contract, intended to insulate one of the parties from liability resulting from his own negligence, are closely scrutinized but are generally enforceable. (Note that it is more difficult to uphold such an exculpatory clause in an adhesion contract.

Answer 365

Assumption of risk is no defense to intentional torts. It is, however, a defense to wanton or reckless conduct.

Answer 366

A substantial MAJORITY of states now permit a contributorily negligent plaintiff to recover a percentage of his damages under some type of COMPARATIVE NEGLIGENCE system. In every case where contributory negligence is shown, the trier of fact weighs plaintiff's negligence against that of defendant and reduces plaintiff's damages accordingly.

Answer 367

1. Partial Comparative Negligence | 2. Pure Comparative Negligence

Answer 368

Most comparative negligence jurisdictions will still bar the plaintiff's recovery if his negligence passes a threshold level. In some states, a plaintiff will be barred if his negligence was MORE SERIOUS than that of the defendant (i.e., the plaintiff will recover nothing if he was more than 50% at fault). In the other states, a plaintiff will be barred from recovering if his negligence was AT LEAST AS SERIOUS as that of the defendant (i.e., the plaintiff will recover nothing if he was 50% or more at fault).

Answer 369

If several defendants have contributed to plaintiff's injury, most of these states use a "combined comparison" approach to determine the threshold level (i.e., plaintiff's negligence is compared with the total negligence of all the defendant's combined).

Answer 370

The "pure" variety of comparative negligence, adopted in a third of the comparative negligence states, allows recovery no matter how great plaintiff's negligence is (e.g., if plaintiff is 90% at fault and defendant 10%, plaintiff may still recover 10% of his damages). On the MBE, pure comparative negligence is the applicable rule unless the question specified otherwise.

Answer 371

Last Clear Chance: not used in most comparative negligence jurisdictions

Answer 372

Implied Assumption of Risk: Most comparative negligence jurisdictions have abolished entirely the defense of implied assumption of risk. In these jurisdictions, traditional assumption of risk situations must be broken down into two categories. 1. When the defendant has only a LIMITED DUTY to the plaintiff because of plaintiff's knowledge of the risks (e.g., being hit by a foul ball at a baseball game), a court may protect the defendant simply by holding that the defendant did not breach his limited duty of care. 2. More common is the situation that is a VARIANT CONTRIBUTORY NEGLIGENCE, in that defendant's initial breach of duty to plaintiff is superseded by plaintiff's assumption of a risk (e.g., builder is negligent in not barricading torn-up sidewalk, but pedestrian chooses to use it despite availability of reasonable alternate route). Here, the REASONABLENESS of plaintiff's conduct is relevant: If the plaintiff has behaved unreasonably, plaintiff is contributorily negligent and damages will be apportioned under the state's comparative negligence statute.

Answer 373

Most comparative negligence jurisdictions retain the defense of express assumption of risk.

Answer 374

In most comparative negligence jurisdictions, plaintiff's negligence WILL be taken into account even though the defendant's conduct was "wanton and willful" or "reckless." However, plaintiff's negligence is still not a defense to intentional tortious conduct by the defendant.

Answer 375

1. The nature of the defendant's activity imposes an ABSOLUTE DUTY to MAKE SAFE; 2. The dangerous aspect of the activity is the ACTUAL and PROXIMATE CAUSE of the plaintiff's injury; and 3. The plaintiff suffered DAMAGE to person or property.

Answer 376

The owner is strictly liable for the damage done by the trespass of his animals (other than household pets) as long as it was REASONABLY FORESEEABLE.

Answer 377

1. Wild animals--strict liability: The owner is strictly liable for injuries caused by wild animals, even those kept as pets. 2. Domestic Animals--knowledge required: The owner of a domestic animal (including farm animals) is NOT strictly liable for injuries it causes. Such liability does, however, attach if the owner has knowledge of that particular animal's dangerous propensities (i.e., propensities more dangerous than normal for that species). This rule applies even if the animal has never actually injured anyone. Some states have "dog bite" statutes, applicable only to dogs, which impose strict liability in personal injury actions even without prior knowledge of dangerous characteristics.

Answer 378

1. Licensees and Invitees--Landowner Strictly Liable Strict liability for injuries inflicted by wild animals or abnormally dangerous domestic animals kept by the landowner on his land will usually be imposed where the person injured came onto the land as an invitee or licensee. Public Duty Exception: An exception is recognized where the landowner is under a PUBLIC DUTY TO KEEP THE ANIMALS (e.g., as a public zookeeper); in such cases, negligence must be shown.

Answer 379

Trespassers Must Prove Negligence Strict liability in such cases generally is NOT imposed in favor of undiscovered trespassers against landowners. Trespasser cannot recover for injuries inflicted by the landowner's wild animals or abnormally dangerous domestic animals in the absence of NEGLIGENCE, e.g., as where the landowner knows that the trespassers are on the land and fails to warn them of the animal.

Answer 380

A landowner who protects his property from intruders by keeping vicious watchdog that he knows is likely to cause SERIOUS BODILY HARM may be liable even to trespassers for injuries caused by the animal. This liability is based on intentional tort principles: Because the landowner is not entitled to use deadly force in person to protect his property, he also may not use such force indirectly.

Answer 381

An activity may be characterized as abnormally dangerous if it involves a substantial risk of serious harm to person or property no matter how much care is exercised. Whether an activity is abnormally dangerous is a question of law that the court can decide on a motion for directed verdict.

Answer 382

The courts generally impose two requirements for finding an activity to be abnormally dangerous: 1. The activity must create a foreseeable risk of SERIOUS HARM EVEN WHEN REASONABLE CARE IS EXERCISED by all actors; and 2. The activity is NOT A MATTER OF COMMON USAGE in the community.

Answer 383

As contrasted with negligence, the duty owed is an ABSOLUTE DUTY TO MAKE SAFE the animal, activity, or condition that is classified as "abnormally dangerous," and liability is imposed for any injuries to persons or property resulting therefrom.

Answer 384

In most states, the duty is owed only to "FORESEEABLE PLAINTIFFS" -- persons to whom a reasonable person would have foreseen a risk of harm under the circumstances.

Answer 385

NORMALLY DANGEROUS PROPENSITY The harm must result from the kind of danger to be anticipated from the dangerous animal or abnormally dangerous activity; i.e., it must flow from the "normally dangerous propensity" of the condition or thing involved.

Answer 386

The majority view is that the same rules of direct and indirect causation govern in strict liability as they do in negligence--defendant's liability can be cut off by unforeseeable intervening forces. In fact, the courts tend to hold more intervening forces "unforeseeable."

Answer 387

Plaintiff's contributory negligence is NO defense if the plaintiff simply failed to realize the danger or guard against its existence (unknowing contributory negligence). It IS a defense, however, if the plaintiff KNEW of the danger and his unreasonable conduct was the very cause of the harm from the wild animal or abnormally dangerous activity. Courts call this conduct "knowing" contributory negligence or a type of assumption of risk. Furthermore, assumption of risk of any type is a good defense to strict liability in contributory negligence states.

Answer 388

Most comparative negligence states will now simply apply the same comparative negligence rules that they apply to negligence cases.

Answer 389

1. Intent 2. Negligence 3. Strict liability 4. Implied warranties of merchantability and fitness for a particular purpose 5. representation theories (express warranties and misrepresentation) NOTE: in an exam question, always consider a defendant's liability under all of the theories unless a theory has been specified.

Answer 390

To find liability under any products liability theory, plaintiff must show that the product was "defective" when the product left defendant's control.

Answer 391

1. manufacturing defects: when a product emerges from a manufacturing process not only different from the other products, but also more dangerous than if it had been made the way it should have been, the product may be so "unreasonably dangerous" as to be defective because of the manufacturing process. 2. Design defects: When all the products of a line are made identically according to manufacturing specifications, but have dangerous propensities because of their mechanical features or packaging, the entire line may be found to be defective because of poor design. 3. Inadequate Warnings: can be analyzed as a type of design defect. A product must have clear and complete warnings of any dangers that may not be apparent to users. For prescription drugs and medical devices, warnings need not be supplied to the patient; a warning to the prescribing physician usually will suffice (the "learned intermediary" rule).

Answer 392

the product was DANGEROUS BEYOND THE EXPECTATION OF THE ORDINARY CONSUMER because of a departure from its intended design. Note: defects in food products are treated the same as manufacturing defects--the "consumer expectation" approach is used.

Answer 393

the plaintiff shows a reasonable alternative design, i.e., that a LESS DANGEROUS MODIFICATION OR ALTERNATIVE WAS ECONOMICALLY FEASIBLE. (feasible alternative)

Answer 394

1. Usefulness and desirability of the product; 2. Availability of safer alternative products; 3. The dangers of the product that have been identified at the time of trial; 4. Likelihood and probable seriousness of injury; 5. Obviousness of the danger; 6. Normal public expectation of danger (especially for established products); 7. Avoidability of injury by care in use of product (including role of instructions and warnings); and 8. Feasibility of eliminating the danger without seriously impairing the product's function or making ti unduly expensive.

Answer 395

A product is deemed to be defective in design or warnings if it fails to comply with applicable government safety standards. On the other hand, a product's COMPLIANCE with applicable government safety standards (including labeling requirements) is evidence--but not conclusive--that the product is NOT defective. Note also that federal labeling requirements DO NOT PREEMPT state products liability law on defective warnings.

Answer 396

1. Misuse: Some products may be safe if used as intended, but may involve serious dangers if used in other ways. Courts have required suppliers to ANTICIPATE REASONABLY FORESEEABLE USES even if they are "misuses" of the product. 2. Scientifically Unknowable Risks: Occasionally, totally unpredictable hazards of a product do not become apparent until after the product has been marketed. This situation arises most frequently with new drugs that yield unpredictable side effects. Even though these drugs might be dangerous beyond customer expectations, courts have generally refused to find drugs unreasonably dangerous where it was impossible to anticipate the problem and make the product safer or provide warnings. 3. Allergies Some products affect different users differently--the problem of allergic reaction. if the allergic group is significant in number, the product is defective unless adequate warnings are conveyed. The modern trend requires such WARNINGS whenever the manufacturer knows that there is a danger of allergic reaction, even though the number affected may be very small.

Answer 397

Whether the parties to the suit are in privity with each other is generally irrelevant under current law except for some of the warranty theories of liability.

Answer 398

The parties are in privity when a contractual relationship exists between them, such as a DIRECT SALE by the defendant retailer to the plaintiff buyer or the buyer's agent.

Answer 399

although very rare, if the defendant intended the harm, it is classified as a battery. Punitive damages would be available. The usual defenses for intentional torts is applicable--such as consent.

Answer 400

1. the existence of a LEGAL DUTY owed by the defendant to that particular plaintiff; 2. BREACH of that duty; 3. ACTUAL and PROXIMATE CAUSE; and 4. DAMAGES

Answer 401

1. Commercial Suppliers: In the usual case, the duty of due care arises when the defendant engages in the affirmative conduct associated with being a commercial supplier of products. "Suppliers" include: the manufacturer of a chattel or a component part thereof, assembler, wholesaler, retailer, or even a used car dealer who sells reconditioned or rebuilt cars. Those who repair a product owe a general duty of care, but are not usually "suppliers" for purposes of products liability cases. A retailer who LABELS a product as the retailer's own or assembles a product from components manufactured by others is liable for the negligence of the actual manufacturer, even though the retailer is not personally negligent. Privity Not Required: Since the case in MacPherson v. Buick, and its extensions, absence of privity is NOT a defense. The duty of due care is owed to ANY FORESEEABLE PLAINTIFF -- user, consumer, or bystander.

Answer 402

To prove breach of duty, the plaintiff must show: 1. NEGLIGENT CONDUCT by the defendant leading to 2. the supplying of a DEFECTIVE PRODUCT by the defendant.

Answer 403

May use res ipsa loquitor Majority view is that a dealer who buys from a reputable supplier or manufacturer with no reason to anticipate that the product is dangerous need make only a cursory inspection of the goods to avoid liability for manufacturing defects.

Answer 404

To establish that a manufacturer's negligence has resulted in a design defect, the plaintiff must show that those designing the product KNEW OR SHOULD HAVE KNOWN of enough facts to put a reasonable manufacturer on notice about the dangers of marketing the product as designed. Negligence is NOT shown if the danger of the product becomes apparent to the reasonable manufacturer only after the product has reached the public.

Answer 405

An intermediary's negligent failure to discover a defect is NOT a superseding cause, and the defendant whose original negligence created the defect will be held liable along with the intermediary. But when the intermediary's conduct becomes something more than ordinary foreseeable negligence, it becomes a superseding cause.

Answer 406

A plaintiff may recover for personal injury and property damages as under the usual negligent analysis. However, if the plaintiff suffers ONLY economic loss (the product does not work as well as expected or requires repairs), most courts do not permit recovery under a negligence theory, requiring the plaintiff to bring an action for breach of warranty to recover such damages.

Answer 407

The standard negligence defenses are applicable to any products liability case predicated on negligence. Thus, in comparative negligence states, plaintiff's contributory negligence may be used to reduce his recovery in an action against a negligent supplier of defective chattels.

Answer 408

1. Absolute duty owed to a COMMERCIAL SUPPLIER; 2. Production or sale of a DEFECTIVE PRODUCT; 3. ACTUAL and PROXIMATE CAUSE; and 4. DAMAGES

Answer 409

Plaintiff must prove that defendant is a COMMERCIAL supplier of the product in question, as distinguished from a casual seller. Thus, strict liability arises when the defendant is a manufacturer, retailer, assembler, or wholesaler. Most courts have expanded strict liability to include mass producers of new homes, commercial lessors, and sellers of used products that have been reconditioned or rebuilt. Distinction between product and service: strict liability is imposed only on one who supplies a product, as opposed to one primarily performing a service. Restaurants are treated as a supplier of products while most courts treat the transfusion of infected blood as the rendition of a service.

Answer 410

1. Product Not Substantially Altered: To hold the commercial supplier strictly liable for a product defect, the product must be expected to, and must in fact, reach the user or consumer without substantial change in the condition in which it is supplied.

Answer 411

As with liability based on negligence, a majority of courts extend this strict liability duty TO ANY SUPPLIER IN THE CHAIN OF DISTRIBUTION and extend the protection not only to buyers, but also to members of the buyer's family, guests, friends, employees of the buyer, and foreseeable bystanders.

Answer 412

For strict liability action, the plaintiff need not prove that the defendant was at fault in the selling or producing of a defective product--only that the product in fact is "defective". As with products liability based on negligence, the two main categories of defects are manufacturing defects and design defects. The only difference in analysis is that the element of NEGLIGENCE NEED NOT BE PROVED in a strict liability case. Thus, in contrast to a negligence action, a retailer in a strict liability action may be liable for a manufacturing or design defect simply because it was a commercial supplier of a defective product--EVEN IF IT HAD NO OPPORTUNITY TO INSPECT THE MANUFACTURER'S PRODUCT BEFORE SELLING IT.

Answer 413

To prove actual cause, the plaintiff must trace the harm suffered to a defect in the product that existed WHEN THE PRODUCT LEFT THE DEFENDANT'S CONTROL. However, if the defect is difficult to trace, the plaintiff may rely on an inference that this type of product failure ordinarily would occur only as the result of a product defect. If the plaintiff claims that one of the defective conditions was the lack of an adequate warning, plaintiff is entitled to a presumption that an adequate warning would have been read and heeded.

Answer 414

The same concepts of proximate cause governing general negligence and strict liability actions are applicable in strict liability for defective products. As with products liability cases based on negligence, the negligent failure of an intermediary to discover the defect does not cut off the supplier's strict liability.

Answer 415

The types of damages recoverable in strict liability actions for defective products are the same as those recovered in negligence actions, namely personal injury and property damages. Once again, most states DENY recovery under strict liability when the sole claim is for economic loss.

Answer 416

1. Contributory negligence states: Unreasonable conduct by the plaintiff, such as voluntarily and unreasonably encountering a known risk are defenses. 2. Comparative Negligence: applied in most comparative negligence states 3. Disclaimers of Liability Ineffective: IRRELEVANT if personal injury or property damage has occurred.

Answer 417

UNNECESSARY If a product fails to live up to the standards imposed by an implied warranty, the warranty is breached and the defendant will be liable. Plaintiff need not prove any fault on defendant's part.

Answer 418

The UCC provisions apply to the SALE OF GOODS under Article 2 and the LEASE OF GOODS under Article 2A.

Answer 419

When a merchant who deals in a certain kind of goods sells such goods, there is an implied warranty that they are MERCHANTABLE. Merchantable means that the goods are of a quality equal to that GENERALLY ACCEPTABLE among those who deal in similar goods and are GENERALLY FIT FOR THE ORDINARY PURPOSES for which such goods are used.

Answer 420

An implied warranty of fitness for a particular purpose arises when the seller knows or has reason to know: 1. The particular purpose for which the goods are required; AND 2. That the buyer is relying on the seller's skill or judgment to select or furnish suitable goods. Usually the seller will be a merchant for the type of goods in question, but this is not essential.

Answer 421

Although in the early period of warranty law, courts held strictly to the requirement of complete privity between the plaintiff and defendant, a trend developed with courts finding the needed privity between remote parties on various fictions and theories--e.g., the warranty ran with the goods, or the retailer was the manufacturer's agent. As a result, most courts no long require vertical privity between the buyer and the manufacturer in implied warranty actions.

Answer 422

Although UCC is silent on the issue of vertical privity, if offers the states three alternative versions on the issue of horizontal privity. A: extends implied warranty protection to BUYER'S FAMILY, HOUSEHOLD, AND GUESTS who suffer personal injury; B: extends protection to any natural person who suffers personal injury; C: covers any person who suffers any injury. Most states have adopted A.

Answer 423

Disclaimers of liability for breach of implied warranty MUST BE SPECIFIC and are narrowly construed. Contractual limitations on PERSONAL INJURY damages resulting from a breach of warranty for consumer goods are prima facie UNCONSCIONABLE.

Answer 424

Issues of actual cause and proximate cause are treated as in an ordinary negligence case.

Answer 425

In addition to personal injury and property damages, purely ECONOMIC LOSSES are recoverable in implied warranty actions.

Answer 426

1. Assumption of risk: UCC indicates that when plaintiff assumes the risk by using a product while knowing of the breach of warranty, any resulting injuries are not proximately caused by the breach. 2. Contributory Negligence: Courts in contributory negligence jurisdictions have adopted an approach similar to that used in strict liability in tort--that unreasonable failure to discover the defect does not bar recovery but that unreasonable conduct AFTER discovery does bar recovery. 3. Comparative Negligence: Courts in comparative negligence jurisdictions use comparative fault notions in warranty cases to reduce the damage award in the same way as in strict liability cases. 4. Notice of Breach: UCC requires the buyer to give the seller notice WITHIN A REASONABLE TIME after the buyer discovers or should have discovered the breach. Most courts have held that the requirement applies even in personal injury cases and where there is no privity between the parties.

Answer 427

Express Warranty and Misrepresentation Involve some affirmative representation by the defendant beyond the act of distributing a product. When the product does not live up to the representation, both contract and tort problems are created.

Answer 428

An express warranty is where a seller or supplier makes any affirmation of fact or promise to the buyer relating to the goods that becomes part of the "basis for the bargain."

Answer 429

As with implied warranties, UCC extends express warraties to leases.

Answer 430

NOT REQUIRED Although UCC declares that its privity alternatives apply to express as well as implied warranties, most courts have held privity to be irrelevant in express warranty cases.

Answer 431

If the buyer is suing, the warranty must have been "part of the basis of the bargain." This is probably less difficult to show than a buyer's subjective "reliance" on the representation. If someone not in privity is permitted to sue, this remote person need NOT have known about the affirmation as long as it became part of the basis of the bargain for someone else in the chain of distribution.

Answer 432

BREACH OF WARRANTY As with implied warranties, the plaintiff need NOT show that the breach occurred through the fault of the defendant, but only that a breach of the warranty did in fact occur.

Answer 433

UCC provides that a disclaimer will be effective only to the extent that it can be read consistently with any express warranties made. This has the effect of making it practically impossible to disclaim an express warranty.

Answer 434

These elements are analyzed the same as under implied warranties.

Answer 435

Liability for misrepresentation may arise when representation by the seller about a product induces reliance by the buyer. In products cases, liability for misrepresentation is usually based on strict liability, but may also arise for intentional and negligent misrepresentations.

Answer 436

1. Strict liability: As long as the defendant is a seller engaged in the business of selling such products, there is no need to show fault on the defendant's part. The plaintiff need only show that the representation proved false, without regard to the defendant's state of mind. 2. Intentional Misrepresentation: For intentional misrepresentations, the plaintiff must show that the misrepresentation was made KNOWINGLY or with RECKLESS disregard for the facts. 3. Negligent Misrepresentation: For negligence liability, knowledge of the misrepresentation on the part of the defendant need not be proved. The plaintiff need only show that a reasonable person should have known such representations to be false when making them.

Answer 437

The misrepresentation must be of a material fact, i.e., a fact concerning the quality, nature, or appropriate use of the product on which a normal buyer may be expected to rely. "Puffing" and statements of opinion are not sufficient.

Answer 438

The defendant must have intended to induce the reliance of the buyer, or a class of persons to which the buyer belongs, in a particular transaction. Evidence of a representation made to the public by label, advertisement, or otherwise is sufficient to show an intent to induce reliance by anyone into whose hands the product may come.

Answer 439

There is no liability if the misrepresentation is not known or does not influence the transaction. Reliance may be found if the representation was a SUBSTANTIAL FACTOR in inducing the purchase, even though not the sole inducement. RELIANCE NEED NOT BE VICTIM'S As with express warranties, PRIVITY IS IRRELEVANT for misrepresentation and the required reliance may be shown to be that of a prior purchaser who passed the product on to the victim.

Answer 440

Reliance by the purchaser serves to show actual cause.

Answer 441

Both elements are analyzed in the same manner as for products liability cases based on negligence or strict liability. If the plaintiff can show that the misrepresentation was intentional, some courts will allow punitive damages to be claimed.

Answer 442

1. Assumption of Risk: If the plaintiff is entitled to rely on the representation, a defense of assumption of risk does not apply. 2. Contributory Negligence (Fault): Whether contributory negligence is a defense depends on the type of misrepresentation. For negligent misrepresentations, contributory negligence is a valid defense. In strict liability actions, the plaintiff's unreasonable behavior is analyzed as in other strict liability actions for defective products. If the plaintiff can show that the defendant's misrepresentation was intentional, contributory negligence would be no defense.

Answer 443

Nuisance is NOT a separate tort in itself, subject to rules of its own. Nuisances are types of harm--the invasion of either private property rights or public rights by conduct that is tortious because it falls into the usual categories of tort liability. In other words, the defendant's conduct may have been intentional or negligent or subjected to liability on a strict liability basis. As a practical matter, nuisances generally are INTENTIONAL interferences because defendant has been made aware that his conduct is interfering with plaintiff's use of her land. (If strict liability is the basis for redressing a nuisance, courts sometimes refer to this as an "absolute" nuisance or "nuisance per se."

Answer 444

Private nuisance is a SUBSTANTIAL, UNREASONABLE INTERFERENCE with another private individual's USE or ENJOYMENT of property he actually possesses or to which he has a right of immediate possession.

Answer 445

The interference with plaintiff's right in his land must be substantial. This means that it must be OFFENSIVE, INCONVENIENT, OR ANNOYING TO AN AVERAGE PERSON IN THE COMMUNITY. It will not be characterized as substantial if it is merely the result of plaintiff's hypersensitivity or specialized use of his own property.

Answer 446

For a nuisance based on intent or negligence, the interference with plaintiff's use of his land must be unreasonable. To be characterized as unreasonable, the severity of the inflicted INJURY MUST OUTWEIGH THE UTILITY of defendant's conduct. In balancing these respective interests, courts take into account that every person is entitle to use his own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courses of conduct open to defendant.

Answer 447

Trespass to land is to be distinguished from private nuisance. In the former, there is an interference with the landowner's EXCLUSIVE POSSESSION by a physical invasion of the land; in the latter, there is an interference with USE OR ENJOYMENT.

Answer 448

Public nuisance is an act that unreasonably interferes with the HEALTH, SAFETY, OR PROPERTY RIGHTS OF THE COMMUNITY, e.g., blocking a highway or using a building to commit criminal activities such as prostitution, bookmaking, etc. Recovery is available for public nuisance only if a private party has suffered some unique damage not suffered by the public at large.

Answer 449

1. damages 2. injunctive relief--where the legal remedy of damages is unavailable or inadequate (nuisance is a continuing wrong, nuisance will cause irreparable injury) 3. abatement by self help--one has the privilege to enter upon defendant's land and personally abate the nuisance after notice to defendant and defendant's refusal to act. The force used may be only that necessary to accomplish the abatement, and the plaintiff is liable for additional harm done.

Answer 450

1. Legislative Authority 2. Conduct of others 3. Contributory Negligence 4. "Coming to the Nuisance"

Answer 451

Conduct consistent with what a zoning ordinance or other legislative license permits is relevant but no conclusive evidence that the use is not a nuisance.

Answer 452

No one actor is liable for all the damage caused by the concurrence of his acts and others.

Answer 453

Contributory negligence is not ordinarily a defense to the tort of nuisance. However, when a nuisance is based on a negligence theory, one may not avert the consequences of his own contributory negligence by affixing to the negligence of the wrongdoer, the label of a nuisance. In such a case, a plaintiff, though pleading nuisance, may have to show his freedom from contributory negligence.

Answer 454

The prevailing rule is that, in the absence of a prescriptive right, the defendant may not condemn surrounding premises to endure the nuisance; i.e., the PURCHASER IS ENTITLED TO REASONABLE USE OR ENJOYMENT OF HIS LAND to the same extent as any other owner as long as he buys in good faith and not for the sole purpose of a a harassing lawsuit.

Answer 455

Vicarious liability is liability that is derivatively imposed. In short, this means that one person commits a tortious act against a third party, and another person is liable to the third party for this act. This may be so even though the other person has played no part in it, has done nothing whatever to aid or encourage it, or indeed has done everything possible to prevent it. This liability rests upon a special relationship between the tortfeasor and the person to whom his tortious conduct is ultimately imputed.

Answer 456

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.

Answer 457

An employee on a delivery or on a business trip for his employer may commit a tort while deviating from the employer's business to run a personal errand. If the deviation was minor in time and geographic area, the employee will still be considered to be acting within the scope of employment rather than on a "frolic" of his own (for which the employer would not be liable.)

Answer 458

It is usually held that intentional tortious conduct by employees is NOT within the scope of employment. In some circumstances, however, courts find intentional tortious conduct to be be within the ambit of this relationship, such as when: 1. Force is authorized in the employment, e.g., bouncer. 2. Friction is generated by the employment, e.g., bill collector. 3. The employee is furthering the business of the employer, e.g., removing customers from the premises because they are rowdy.

Answer 459

Employers may be liable for their OWN NEGLIGENCE by negligently selecting or supervising their employees. This is NOT vicarious liability, however.

Answer 460

In general a principal will NOT be vicariously liable for tortious acts of her agent if the latter is an independent contractor. Two BROAD EXCEPTIONS exist, however: 1. The independent contractor engaged in INHERENTLY DANGEROUS ACTIVITIES, e.g., excavating next to a public sidewalk, blasting. 2. The duty, because of PUBLIC POLICY considerations, is simply nondelegable, e.g., the duty of a business to keeps its premises safe for customers. An employer may be liable for her OWN NEGLIGENCE in selecting or supervising the independent contractor (e.g., hospital liable for contracting with unqualified and incompetent physician who negligently treats hospital's patient). This is NOT vicarious liability.

Answer 461

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 462

A joint venture, although similar to partnership, is for a more limited time period and more limited purpose. It is generally an undertaking to execute a small number of acts or objectives. A joint venture exists when two or more people enter into an activity if two elements are present: 1. Common purpose: look for a business purpose and sharing of expenses between individuals 2. Mutual right of control: it is sufficient that there is an understanding between the parties that each has a right to have her desires respected on the same basis as the others.

Answer 463

The general rule is that an automobile owner is NOT VICARIOUSLY LIABLE for the tortious conduct of another driving his automobile. However, many states by statute or judicial precedent have adopted the "FAMILY CAR" doctrine, by which the owner is liable for tortious conduct of IMMEDIATE FAMILY OR HOUSEHOLD MEMBERS who are driving with the owner's express or implied permission. A number of states have now gone further by enacting "PERMISSIVE USE" statutes imposing liability for damage caused by ANYONE driving with such consent. LIABILITY FOR OWNER'S NEGLIGENCE: remember that the owner may be liable for her OWN NEGLIGENCE in entrusting the car to a driver. Some states have also imposed liability upon the owner if she was present in the car at the time of the accident, upon the theory that she could have prevented the negligent driving, and hence was negligent herself in not doing so. This is not vicarious liability.

Answer 464

Under the general rule, the bailor is NOT VICARIOUSLY LIABLE for the tortious conduct of his bailee. The bailor may be liable for her OWN NEGLIGENCE in entrusting the bailed object. This is not vicarious liability.

Answer 465

A parent is NOT VICARIOUSLY LIABLE for the tortious conduct of the child at common law. Note, however, that most states, by statute, make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount. CHILD ACTING AS AGENT FOR PARENTS: Courts may impose vicarious liability if the child commits a tort while acting as the agent for the parents. PARENT LIABLE FOR OWN NEGLIGENCE: The parent may be held liable for her OWN NEGLIGENCE in allowing the child to do something, e.g., use a dangerous object without proper instruction. Further, if the parent is apprised fo the child's conduct on past occasions showing a tendency to injure another's person or property, she may be liable for not using due care in exercising control to mitigate such conduct, e.g., by allowing the child to play with other children he has a history of attacking.

Answer 466

At 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 the vendee's conduct. Many states, to avoid this common law rule, have enacted "Dramshop Acts." Such acts usually create a CAUSE OF ACTION IN FAVOR OF ANY THIRD PERSON INJURED by the intoxicated vendee. Several courts have imposed liability on tavernkeepers even in the absence of a Dramshop Act. This liability is based on ordinary negligence principles (the foreseeability risk of serving a minor or obviously intoxicated adult) rather than vicarious liability.

Answer 467

When two or more tortious acts combine to proximately cause an INDIVISIBLE injury to a plaintiff, each tortfeasor is jointly and severally liable for that injury. This means that EACH IS LIABLE to the plaintiff for the ENTIRE DAMAGE incurred. Joint and several liability applies even though each tortfeasor acted entirely independently. However, if the actions are independent, plaintiff's injury is divisible, and it is possible to identify the portion of injuries cause by each defendant, then each will only be liable for the identifiable portion. TORTFEASORS ACTING IN CONCERT: When two or more tortfeasors act in concert (i.e., by agreement) and injure plaintiff, then each will be jointly and severally liable for the entire injury. This is so even though the injury is divisible and one could identify what each tortfeasor has done alone. STATUTORY LIMITATIONS Many states have limited the joint liability doctrine by statute. Two of the most common types of statutes abolish joint liability either (1) for those tortfeasors judged to be less at fault that the plaintiff, or (2) for all tortfeasors with regard to noneconomic damages (e.g., pain and suffering). The liability of a tortfeasor in these situations is proportional to his fault.

Answer 468

If plaintiff recovers full payment from one tortfeasor, either by settlement or payment of a judgment, there is a "satisfaction." She may not recover further against any other joint tortfeasor. Until there is satisfaction, however, she may proceed against other jointly liable parties.

Answer 469

A release is a surrender of plaintiff's cause of action against the party to whom the release is given. In most states, a release of one tortfeasor does NOT discharge other tortfeasors unless expressly provided in the release agreements. Rather, the claim against the other is reduced to the extent of the amount stipulated in the agreement or the amount of consideration paid, whichever is greater.

Answer 470

Where joint and several tort liability exists, it permits plaintiff to recover the entire judgment amount from any tortfeasor. The rule of contribution adopted in some form in most states, allows any tortfeasor required to pay more than his share of damages to have a claim against the other jointly liable parties for the excess. Thus, contribution is a device whereby responsibility is APPORTIONED among those who are at fault. Methods of Apportionment: 1. Comparative Contribution: most states have a comparative contribution system where contribution is imposed in proportion to the relative fault of the various tortfeasors. 2. Equal Shares: a minority of states require all tortfeasors to pay EQUAL SHARES regardless of their respective degree of fault.

Answer 471

The tortfeasor from whom contribution is sought must be originally liable to the plaintiff. If the contribution tortfeasor has a defense that would bar liability, such as intra-family tort immunity, he is not liable for contribution.

Answer 472

Contribution is not allowed in favor of those who committed intentional torts. This is so even if though each of the tortfeasors was equally capable.

Answer 473

Indemnity involves SHIFTING THE ENTIRE LOSS between or among tortfeasors, in contrast to apportioning it as in contribution.

Answer 474

1. Right to Indemnity by Contract: contracts in which one person promises to indemnify another against consequences of his own negligence are generally upheld. The right to indemnification will not be ready into an agreement unless there is evidence that the right was clearly intended. 2. Vicarious liability: When one person is held for damages caused by another simply because of his relationship to that person, this party may seek indemnification from the person whose conduct actually caused the damage. 3. Indemnity Under Strict Products Liability: Each supplier of a defective product, where strict liability rule apply, is liable to an injured customer, but each supplier has a right of indemnification against all previous suppliers in the distribution chain. The manufacturer is ultimately liable if the product was defective when it left its control. 4. Identifiable Difference in Degree of Fault: A number of jurisdictions extend the principle of indemnity to allow one joint tortfeasor to recover against a co-joint tortfeasor where there is a considerable difference in degree of fault. In other words, he who is least at fault may be able to recover from the "more wrongful" tortfeasor. (Most common examples: retailers who negligently rely on product's condition; where liability imposed under secondary duty; active/passive negligence doctrine). Most states with comparative negligence systems REJECT indemnity in degree of fault situations, instead applying a general comparative contribution system and apportioning damages based on relative fault. These states continue to permit indemnity where indemnity rules are not based on differences in degrees of fault. A MAJORITY of states have now adopted a comparative contribution system based on the RELATIVE FAULT of the various tortfeasors. Comparative contribution changes the traditional method of apportionment in contribution cases and supplants indemnification rules based on identifiable differences in degree of fault. In both situations, nonpaying tortfeasors are required to contribute only in proportion to their relative fault.

Answer 475

At common law, a tort action abated at the death of either the tortfeasor or the victim. Most states have changed this by statute, i.e., the "survival acts." Thus, a victim's cause of action will survive to permit recovery of all damages from the time of injury to the time of death. In the majority of states, these acts apply to both torts to PROPERTY and torts resulting in PERSONAL INJURY. TORTS THAT EXPIRE ON VICTIM'S DEATH: Exceptions exist in most jurisdictions for those torts that invade an INTANGIBLE PERSONAL INTEREST, e.g., defamation, malicious prosecution, etc. These torts are felt to be so personal as to expire upon the victim's death.

Answer 476

Every state has now enacted some form of wrongful death act.

Answer 477

In some jurisdictions, the personal representative is the proper party to bring the action; in others, the surviving spouse or next of kin herself might be the proper party.

Answer 478

The measure of recovery in wrongful death actions under most statutes is for the pecuniary injury resulting to the spouse an next of kin. Basically, this allows recovery for loss of support, loss of consortium, etc. It does not allow any recovery for decedent's pain and suffering; those damages would be an element of a personal injury survival action brought on behalf of the decedent. 1. Deaths of Children, Elderly People: Recovery allowed, even though actual loss of support may be very small and the judgment would be quite modest. 2. Rights of Creditors: no claim against the amount awarded.

Answer 479

Recovery is allowed ONLY to the extent that the deceased could have recovered in the action if he had lived. Thus, for example, his contributory negligence would reduce or bar a wrongful death recovery in comparative negligence states.

Answer 480

Defenses against potential beneficiaries do not bar the action. However, that particular beneficiary's recovery will be reduced or barred under the state's comparative negligence rule. The total damage award assessed by the jury will be reduced by the amount withheld from the beneficiary.

Answer 481

In most jurisdictions, both husbands and wives may recover damages for loss of their spouse's consortium or services because of injuries to the spouse from defendant's tortious conduct, whether intentional, negligent, or based on strict liability.

Answer 482

1. Parent's actions: a parent may maintain an action for loss of the child's services when the child is injured as a result of defendant's tortious conduct, whether such conduct is intentional, negligent, or based on strict liability. 2. Child's Action: a child has NO action in most jurisdictions against one who tortiously injures his parent.

Answer 483

The action for interference with family relationships is DERIVATIVE. Recovery in the derivative action depends on the potential success of the injured family's member's own action. Thus, any defense that could be raised against the injured family member, e.g., her own contributory negligence, can also be raised in the derivative action for interference with family relationships. Furthermore, a defense against a family member seeking such derivative recovery may also be raised in this action.

Answer 484

Under the traditional view, one member of a family unit could NOT sue another in tort for personal injury. This view has undergone substantial change in most states. 1. Husband-Wife Immunity Abolished: most states have abolished and either spouse can bring a suit against the other. 2. Parent-Child Immunity Limited: a slight majority of states have abolished parent-child immunity; however, these states generally grant parents broad discretion in exercise of parental authority or supervision. The remaining states retain parent-child immunity but do no apply it in cases of INTENTIONAL tortious conduct and, in many of these states, in AUTOMOBILE ACCIDENT cases (at least to the extent of insurance coverage.)

Answer 485

A suit for property damage may usually be maintained by any family member against any other family member. In short, to the extent that intra-family tort immunity exists, it applies to personal, not property, injuries.

Answer 486

Under the doctrine of sovereign immunity, governmental units were traditionally not subject to tort actions unless they had consented to the suit. Now, by statute and judicial decision, that immunity is considerably limited. Note, however, that a waiver of sovereign immunity does not create any new tort duties; it only waives immunity for existing statutory or common law duties of care.

Answer 487

By virtue of the Federal Tort Claims Act, the US has WAIVED IMMUNITY for tortious acts. Under its provisions, the federal government may now be held liable to the same extent as a private individual. However, the Act spells out several situations where this immunity will still attach.

Answer 488

Immunity still attaches for: 1. assault; 2. battery; 3. false imprisonment; 4. false arrest; 5. malicious prosecution; 6. abuse of process; 7. libel and slander; 8. misrepresentation and deceit; 6. interference with contract rights.

Answer 489

The immunity is not waived for acts characterized as "discretionary," as distinguished from those acts termed "ministerial." In general, discretionary activity is that which takes place at the PLANNING OR DECISIONMAKING LEVEL, while ministerial acts are performed at the OPERATIONAL LEVEL of government.

Answer 490

A government contractor may assert the federal government's immunity defense in a products liability case if the contractor conformed to reasonable, precise specifications approved by the government and warned the government about any known dangers in the product.

Answer 491

Most states have substantially waived their immunity from tort actions to the same extent as the federal government. Thus, immunity still attaches for discretionary acts and for legislative and judicial decisionmaking. Note: where federal or state immunity still attaches, it also, as a general rule, covers not only "the government" but the various federal and state agencies as well. (schools, hospitals)

Answer 492

About half of the states have abolished municipal tort immunity by statute or judicial decision to the same extent that they have waived their own immunity. Hence, immunity is abolished for everything but discretionary acts and policy decisions.

Answer 493

PUBLIC DUTY RULE LIMITATION Where municipal immunity has been abolished, many courts apply the "public duty" doctrine to limit the scope of government liability. A duty that is owed to the public at large, such as the duty of the police to protect the citizens, is not owed to any particular citizen, and no liability exists for failure to provide police protection in the absence of a SPECIAL RELATIONSHIP between the municipality and the citizen that gives rise to a special duty. A special relationship can be shown by: 1. an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; 2. knowledge on the part of the municipalities agents that inaction could lead to harm; 3. some form of direct contact between the municipalities agents and the injured party; and 4. that party's justifiable reliance on the municipalities affirmative undertaking.

Answer 494

LIMITED TO GOVERNMENTAL FUNCTIONS Where municipal immunity still exists in its traditional form, the courts have sought in many instances to avoid its consequences. This has primarily been accomplished by differentiating between "government" and "proprietary" functions of the municipality. Immunity attaches to the former but not to the latter.

Answer 495

Certain functions historically have been construed such that they could only be performed adequately by the government, and thus they are held to be "government" in character, e.g., police, fire, courts, etc. Tort immunity attaches to those functions.

Answer 496

If the municipality is performing a function that might as well have been provided by a private corporation, the function is construed as a "proprietary" one (e.g., utility companies, maintaining airport parking lot, etc.). NO TORT IMMUNITY attaches here.

Answer 497

In addition to the immunity conferred on the government entity, governmental officials may also have immunity from tort liability. Immunity applies to a public officer carrying out his official duties where they involve DISCRETIONARY ACTS done without malice or improper purpose. On the other hand, for acts that are construed as MINISTERIAL, no tort immunity applies.

Answer 498

The majority of courts have abrogated the common law rule of charitable immunity either by statute or decision. Even where such immunity still exists, it is riddled with exceptions.

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