Torts I &II

PL: valid plaintiff/defendant combination in a products liability case based on negligence

A bystander injured by the product suing the assembler of the product The purchaser of the product suing the retailer that labeled the product as its own However, A user of the product suing the business that repaired the product is false A user of the product suing the business that repaired the product is not a valid plaintiff/defendant combination in a products liability action. Usually, the duty of due care in this type of action arises when the defendant engages in the commercial supplying of a product. In contrast, those who repair a product owe a general duty of care, but are not usually "suppliers" for purposes of products liability cases. The purchaser of the product suing the retailer that labeled the product as its own states a valid plaintiff/defendant combination. 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. A bystander injured by the product suing the assembler of the product also states a valid plaintiff/defendant combination. The duty of due care is owed to any foreseeable plaintiff—user, consumer, or bystander—and the assembler of a product is treated as a commercial supplier.

The tort of intentional infliction of emotional distress requires proof of:

A case of intentional infliction of emotional distress requires proof of conduct that transcends all bounds of decency (i.e., outrageous conduct). To establish a prima facie case for intentional infliction of emotional distress, there must be proof of: (i) An act by the defendant that amounts to extreme and outrageous conduct; (ii) Intent on the part of the defendant to cause the plaintiff to suffer severe emotional distress or recklessness as to the effect of the defendant's conduct; (iii) Causation; and (iv) Severe emotional distress. To protect against potential abuse, courts limit liability for this tort to those situations where outrageous conduct on the part of the defendant is proved. Outrageous conduct is conduct that transcends all bounds of decency tolerated by society. It is not necessary to prove an intent to cause severe emotional distress to establish this tort. As stated above, acting in reckless disregard of a high probability that emotional distress will result also satisfies the intent element. Intentional infliction of emotional distress does not require proof of physical injury. In fact, this tort covers those situations where the defendant intentionally shocks the plaintiff but there is no physical injury or threat thereof. Intentional infliction of emotional distress also does not require proof of offensive or insulting language. Such conduct could be an example of the outrageous conduct required for this tort, although generally offensive or insulting language will not be characterized as outrageous conduct. The tort can be committed by conduct other than language.

potential defendant in a products liability action based on strict tort liability

A casual seller is not a commercial supplier, and therefore not a potential defendant for purposes of products liability based on strict tort liability. Only commercial suppliers are liable in a strict products liability action. A commercial supplier includes a manufacturer, retailer, assembler, or wholesaler. In addition, 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.

WD: Tortious interference with a family relationship?

A child cannot recover damages when his parent is injured by a defendant's tortious conduct A child has NO cause of action in most jurisdictions against a defendant who tortiously injures his parent. A spouse can recover for loss of consortium from the defendant's conduct, whether intentional, negligent, or based on strict liability 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. A parent may maintain an action for loss of the child's services when the child is injured as a result of the defendant's tortious conduct, whether such conduct is intentional, negligent, or based on strict liability.

AMP Products Liability In a products liability action based on strict liability, a commercial supplier may avoid liability for injuries caused by a defective product if:

A commercial supplier may avoid liability for injuries caused by a defective product if the defect arose after the product left the supplier's control. To establish actual cause in a products liability action, the plaintiff must trace the harm to a defect in the product that existed when the product left the defendant's control. The fact that a subsequent supplier could have discovered the defect but failed to do so would not enable an earlier supplier (such as the manufacturer) to avoid liability; that typically would be considered ordinary foreseeable negligence, which does not cut off the manufacturer's liability. Also, the fact that the supplier made a reasonable inspection of the product but did not discover the defect or had no opportunity to inspect the product before selling it is no defense; 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.

To assert the defense of property, a defendant using force against another may not:

A defendant cannot assert the defense of property if she uses force against one with a privilege to enter the property. Whenever an actor has a privilege to enter upon the land of another because of necessity, right of reentry, right to enter upon another's land to recapture chattels, etc., that privilege supersedes the privilege of the land possessor to defend her property. It is not true that the defendant may not use force that may injure the entrant. The force used must be reasonable and not likely to cause death or serious bodily injury. It is incorrect to state that the defendant may not use force without a request to desist. A request to desist must usually precede the use of force, but if the circumstances make it clear that the request would be futile or dangerous, then a request to desist is not required. It is also incorrect to state that the defendant may not make a mistake about the right to use force. A reasonable mistake is allowed as to the property owner's right to use force in defense of property, where the mistake involves whether an intrusion has occurred or whether a request to desist is required.

VL facts

A defendant may be both vicariously liable and directly liable in the same action. Respondeat superior is a type of vicarious liability. The conduct of the tortfeasor is imputed to the defendant because of a special relationship between them. "Imputed contributory negligence" is not another term for vicarious liability. While both doctrines arise from the special relationship between a negligent actor and another, imputed contributory negligence operates as a defense because the contributory negligence of another is imputed to the plaintiff, while vicarious liability operates as a mechanism for liability because the conduct of the tortfeasor is imputed to the defendant. Respondeat superior is a type of vicarious liability based on an employment relationship. A defendant may be both vicariously liable and directly liable in the same action. In addition to being vicariously liable because of the relationship between the tortfeasor and the defendant, a defendant may be liable for her own negligence in dealing with or supervising the tortfeasor.

Which of the following is a potential defendant in a products liability action based on strict tort liability?

A hardware store that leased a defective power tool is a potential defendant in a products liability action based on strict tort liability. Only commercial suppliers are liable in a strict products liability action. A commercial supplier includes a manufacturer, retailer, assembler, or wholesaler. In addition, most courts have expanded strict liability to include mass producers of new homes, commercial lessors (such as the hardware store here), and sellers of used products that have been reconditioned or rebuilt. A commercial supplier is not a casual seller (such as a gardening enthusiast who sold a basket of tomatoes to a neighbor). Also, the defendant must supply a product, rather than primarily perform a service. A hospital's providing a transfusion of infected blood is treated by most courts as the rendition of a service.

commercial supplier of a defective product in a products liability case based on strict liability

A hospital that transfused infected blood would not be considered a commercial supplier for a products liability action based on strict liability in tort. To establish a prima facie case based on strict liability, it must be proved that the defendant was a commercial supplier. A commercial supplier may be distinguished from a party like a casual seller (e.g., a homemaker selling jam to a neighbor). Thus, the defendant must be a manufacturer, retailer, assembler, or wholesaler. The defendant also must supply a product, rather than primarily perform a service. Providing a transfusion of infected blood is treated by most courts as the rendition of a service. A movie theater that sold moldy candy would be considered a commercial supplier for a products liability action based on strict liability. Even though the movie theater is not primarily in the business of selling candy, it is a retail supplier of those products and thus would be considered a commercial supplier. Used car dealers that sell reconditioned cars are considered commercial suppliers for products liability purposes. The original car manufacturer could also be held strictly liable, depending on the cause of the damages, if the car reached the consumer without being substantially altered from the condition in which it was supplied originally. A restaurant that serves spoiled meat will be considered a commercial supplier for a products liability case based on strict liability. Strict liability is imposed on one who supplies a product, as opposed to one primarily performing a service, and courts treat restaurants as suppliers of products.

Which of the following is accurate regarding the defense of property?

A landowner usually must make a request to desist before defending her property. A request is not required if the circumstances make it clear that the request would be futile or dangerous. A landowner's right to defend her property does NOT supersede other privileges. If another is privileged to enter upon a landowner's property, due to necessity, a right of reentry, right to recapture chattels, etc., that privilege supersedes the landowner's right to defend her property. A landowner CAN make a mistake as to whether an intrusion of her property has occurred. A reasonable mistake is allowed as to the landowner's right to use force in defense of property, if the mistake involves whether an intrusion has occurred or whether a request to desist is required. A mistake is not allowed, however, if the entrant has a privilege to enter the property that supersedes the landowner's right to defend her property. Then the landowner is liable for her mistake, unless the entrant intentionally or negligently caused the mistake. A landowner may NOT use deadly force to defend her property. One can only use reasonable force to defend her property, not force that will cause death or serious bodily harm. Deadly force can be employed only if the landowner or another on the property is physically threatened, such that she may act in self-defense or defense of others.

When a product emerges from production different from other products and more dangerous than if it had been made the way it should have been, it has:

A manufacturing defect occurs 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. A design defect occurs 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 defective because of the poor design. An inadequate warning can be considered a type of design defect. A product must have clear and complete warnings of any dangers that may not be apparent to users.

WD: interference with a family relationship is followed by a majority of jurisdictions?

A parent may maintain an action for loss of a child's services, but a child has no action against one who tortiously injures his parent A parent may maintain an action for loss of a child's services when the child is injured as a result of a defendant's tortious conduct, whether such conduct is intentional, negligent, or based on strict liability. However, in most jurisdictions, a child has no action against one who tortiously injures his parent. Hence, even minor children cannot recover damages for loss of a parent's support in this type of action. 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 the defendant's tortious conduct, whether intentional, negligent, or based on strict liability

A prima facie case for intentional tort liability requires proof of _________.

A prima facie case for intentional tort liability requires proof of a volitional act by the defendant; i.e., conduct dictated by the actor's mind. The typical prima facie case for intentional tort liability requires the plaintiff to prove the following: (i) An act by the defendant; (ii) Intent; and (iii) Causation. Some intentional torts also require a showing of damages, but most do not. It is not required that there be proof of malice for intentional tort liability, although a showing of malice may permit the recovery of punitive damages. Nor is it required that the actor intend to cause injury. An intent to do the act that constitutes the tort is sufficient.

A products liability action based on __________ arises when the product seller knows that harm is substantially certain to occur to the buyer from using the defective product

A products liability action based on intent arises when the product seller knows that harm is substantially certain to occur to the buyer from using the defective product; this establishes the requisite intent for the intentional tort of battery. Products liability cases may be based on negligence, strict liability, and breach of warranty, but these actions are defined differently and do not require the product seller to know that harm is substantially certain to occur.

Indemnity facts

A retailer strictly liable for the sale of a defective product has a right of indemnity against its manufacturer. A vicariously liable employer has an indemnity right against the negligent employee. A promise in a contract to indemnify another against the consequences of the promisor's negligence usually will be upheld. However, States applying comparative negligence generally retain a joint tortfeasor's right of indemnity against another joint tortfeasor with a much higher degree of fault, is false Most states with comparative negligence systems REJECT a right of indemnity against another joint tortfeasor with a much higher degree of fault. Instead, they apply a comparative contribution system and apportion damages based on relative fault, regardless of how different the degree of fault. A right to indemnity may be based on vicarious liability, such as the right of a vicariously liable employer against the negligent employee, and based on products liability, such as the right of a retailer strictly liable for the sale of a defective product against its manufacturer. A right to indemnity may also be contractual; hence, a promise in a contract to indemnify another against the consequences of the promisor's negligence usually will be upheld.

Indemnification facts

A retailer who negligently fails to discover a product defect may receive indemnification from the manufacturer A vicariously liable employer may receive indemnification from the negligent employee A joint tortfeasor who is passively negligent may receive indemnification from a joint tortfeasor who is actively negligent However, Most comparative negligence states permit indemnity when there are different degrees of relative fault Most comparative negligence states REJECT indemnity when there are different degrees of fault among the tortfeasors, applying instead a general comparative contribution system and apportioning damages based upon relative fault, regardless of how different the degree of fault. (These states continue to permit indemnity when it is not based on differences in degrees of fault, e.g., vicarious liability cases.) A retailer who negligently fails to discover a product's defect may receive indemnification from the manufacturer who negligently manufactured it. 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 indemnification from the "more wrongful" tortfeasor. For example, an employer whose liability is based on the negligence of his employee may receive indemnification from the employee. Also, some jurisdictions allow a joint tortfeasor who is passively negligent to

PL: inadequate warnings

A warning may be held inadequate even though it complies with government labeling requirements. A product's compliance with applicable government safety standards (including labeling requirements) is evidence—but not conclusive—that the product is not defective. Furthermore, federal labeling requirements do not preempt state products liability law on defective warnings. Inadequate warnings are analyzed like DESIGN defects rather than manufacturing defects. Courts will look at whether more effective warnings were feasible. While ordinarily warnings must be directed to consumers, under the "learned intermediary" rule, warnings of dangers need not be made directly to the patient as to prescription drugs and medical devices; a warning to the prescribing physician usually will suffice. A plaintiff suing on the basis of an inadequate warning does not have to present proof that she would have followed an adequate warning; she may rely on a presumption to that effect.

WD: What is the result when the plaintiff in a tort action dies?

Actions based on intangible personal torts do not survive In most jurisdictions, actions based on intangible personal torts do not survive the victim's death. Torts like defamation and malicious prosecution are felt to be so personal as to expire upon the victim's death. Hence, all tort actions do NOT survive the death of the victim. At common law, a tort action abated at the death of either the tortfeasor or the victim. However, most states have changed this through "survival acts." Thus, many tort actions DO survive the death of the victim. In the majority of states, this applies to BOTH torts to property and torts resulting in personal injury.

products liability case based in negligence?

An intermediary's negligent failure to discover a defect will not cut off the defendant's liability; the defendant whose original negligence created the defect will be held liable along with the intermediary. (However, when the intermediary's conduct becomes something more than ordinary foreseeable negligence, it becomes a superseding cause and cuts off the defendant's liability.) In a products liability case based in negligence, a plaintiff may NOT recover solely for economic losses. A plaintiff may recover for personal injury and property damages as under the usual negligence analysis. However, if the plaintiff suffers only economic loss, most courts do not permit recovery under a negligence theory. Furthermore, in a products liability action based in negligence, a plaintiff's contributory negligence IS a defense in a jurisdiction applying comparative negligence. The standard negligence defenses are applicable to any products liability case predicated on negligence. Thus, in a comparative negligence state, a plaintiff's contributory negligence may be used to reduce his recovery in an action against a negligent supplier of defective chattels.

PL: In a jurisdiction applying traditional contributory negligence rules to a strict products liability action, a plaintiff's __________ is a

Answer Discussion - Incorrect In a jurisdiction applying traditional contributory negligence rules to a strict products liability action, a plaintiff's assumption of the risk is a defense. Where a plaintiff's misuse was reasonably foreseeable, ordinary contributory negligence is not a defense in a strict products liability action. The same result occurs where the plaintiff merely failed to discover the defect or guard against its existence. In contrast, other types of unreasonable conduct, such as voluntarily and unreasonably encountering a known risk (i.e., assumption of the risk) are defenses.

Strict liability regarding abnormally dangerous activity via defendant

Any foreseeable plaintiff injured as a result of the dangerous propensity of the activity A defendant engaging in an abnormally dangerous activity may be liable only to foreseeable plaintiffs injured as a result of the dangerous propensity of the activity. This is the best statement of the scope of the duty owed. In most states, a defendant will be liable only to those persons to whom a reasonable person would have foreseen a risk of harm under the circumstances. In general, strict liability is not imposed for injuries to a plaintiff to whom no reasonable person would have foreseen a danger. Only a minority of courts find liability for ANYONE injured as a result of the dangerous propensity of the activity, on the basis of the intrinsic danger of the defendant's activity. The defendant will not be strictly liable to all plaintiffs who were directly injured by the activity. Rather, the harm must result from the kind of danger to be anticipated from the abnormally dangerous activity; i.e., it must flow from the "normally dangerous propensity" of the activity involved. Conversely, a foreseeable plaintiff may recover even if she was not directly injured by the activity as long as the

Both _________ and __________ are required elements of a prima facie case for strict liability.

Causation; damages To establish a prima facie case for strict liability, the following elements must be shown: (i) The nature of the defendant's activity imposes an absolute duty to make safe; (ii) Causation (i.e., the dangerous aspect of the activity is the actual and proximate cause of the plaintiff's injury); and (iii) Damages (i.e., the plaintiff suffered damage to person or property). It is not required that the defendant be engaged in an abnormally dangerous activity. While such activity will result in the application of strict liability, it is not the only basis for imposing that standard. Strict liability may also be imposed for dangerous animals and defective products. Breach of duty is not an element of the prima facie case for strict liability; rather, it is an element of a negligence cause of action.

Contribution facts

Contribution is not allowed in favor of those who committed intentional torts However not, The tortfeasor need not be originally liable to the plaintiff The rule of contribution has been adopted by only a minority of states Contribution is not allowed in favor of those who committed intentional torts. This is so even though each of the tortfeasors was equally culpable. The tortfeasor from whom contribution is sought must be originally liable to the plaintiff. Furthermore, if the contribution tortfeasor has a defense that would bar liability, such as intra-family tort immunity, he is not liable for contribution. The rule of contribution has been adopted in some form in most states and 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.

Which of the following is not an element of the prima facie case of false imprisonment?

Damages is not an element of the prima facie case of false imprisonment. That tort requires proof of the following elements: (i) An act or omission to act on the part of the defendant that confines or restrains the plaintiff to a bounded area; (ii) Intent on the part of the defendant to confine or restrain the plaintiff to a bounded area; and (iii) Causation. As indicated above, an act or omission to act on the part of the defendant that confines or restrains the plaintiff to a bounded area, intent to confine or restrain the plaintiff to a bounded area, and causation are required elements of the prima facie case for false imprisonment.

WD: Tort actions that expire upon victims death?

Defamation & Malicious prosecution A battery cause of action would not expire on the victim's death. At common law, a tort action abated at the death of the tortfeasor or the victim. Most states, however, have altered this result through survival acts, so 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, survival acts apply to both torts to property and torts resulting in personal injury (such as battery). Exceptions, however, do exist in most jurisdictions for those torts that invade an intangible personal interest, e.g., defamation and malicious prosecution. These torts are felt to be so personal as to expire on the victim's death.

Government officials immunity status

Depends about whom you're talking Judges and high-ranking federal executive officials (e.g., cabinet members): Absolutely immune from tort liability for acts within the scope of their duties. Stat officials: States are split. Some make officials immune from negligence, others make a distinction between discretionary and ministerial functions, and abolish immunity for ministerial functions, while retaining immunity for discretionary functions carried out honestly and in good faith. In addition, state officials may be personally liable under a federal statute, 42 USC subsection 1983, which makes a person acting under color of state law liable for damages for depriving anyone of federal constitutional rights.

WD: The contributory negligence of __________ is relevant in an action based on interference with a spouse's consortium and services.

Either the plaintiff spouse or the injured spouse In an action based on interference with a spouse's consortium and services, the contributory negligence of either the injured spouse or the plaintiff spouse is relevant. The action for interference with consortium and services is derivative. Recovery in the derivative action depends on the potential success of the injured family member's own action. Thus, any defense that could be raised against the injured family member can also be raised in the derivative action for interference with consortium and services. Furthermore, a defense against a family member seeking such a derivative recovery may also be raised in this action.

Which of the following is required for a trespass to land?

For a trespass to land, the plaintiff's land must be physically invaded. The interest protected by this tort is exclusive possession of realty. A prima facie case for trespass to land requires proof of: (i) An act of physical invasion of the plaintiff's real property by the defendant; (ii) Intent on the defendant's part to bring about a physical invasion of the plaintiff's real property; and (iii) Causation. All that is necessary to satisfy the first element is a physical invasion of the plaintiff's land. It is not necessary that the defendant unlawfully enter onto the land. Thus, a trespass exists when a defendant floods a plaintiff's land, throws a rock onto it, or chases a third person onto it. Furthermore, a trespass to land also exists when a defendant remains on the plaintiff's land after an otherwise lawful right of entry has lapsed. It is also not necessary for the plaintiff to request that the defendant leave his land. The tort is complete as soon as the defendant, with the requisite intent, has caused the invasion.

Which of the following is correct regarding duty of care in a products liability case based in negligence?

For the duty of care in a products liability case based in negligence, a retailer that labels a product as its own is liable for the manufacturer's negligence, even though the retailer was not personally negligent. Those who commercially repair a product do NOT owe a duty of care as commercial suppliers of the product. 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. Those who repair a product owe a general duty of care, but are not usually suppliers for purposes of products liability cases. The duty of care is NOT owed only to those in privity with the defendant. The duty of due care is owed to any foreseeable plaintiff, such as a user, consumer, or bystander.

WD: municipal/sovereign immunity

Governmental functions Where municipal immunity exists, tort immunity attaches to governmental functions, not to proprietary functions. About half of the states have abolished municipal tort immunity by statute or judicial decision. Where municipal immunity still exists in its traditional form, the courts have sought in many instances to avoid its consequences. This has been primarily accomplished by differentiating between governmental and proprietary functions of the municipality. A function will be deemed proprietary if it might as well have been provided by a private corporation. In contrast, a governmental function is one that traditionally could only have been performed adequately by the government. Immunity attaches to governmental functions but not to proprietary functions.

Which of the following will preclude recovery in a products liability action based on negligence?

If a plaintiff suffers only economic loss, then she will be prohibited from bringing a products liability action based on negligence. Under the usual negligence analysis, the plaintiff may recover for personal injuries and property damages. But if the plaintiff only suffers economic loss, like the product does not work as well as expected or requires repairs, she will not be permitted to recover under a negligence theory and will need to bring an action for breach of warranty. If an intermediary negligently fails to discover a defect, this will not prevent a products liability action based on negligence. The intermediary's failure is not a superseding cause in this instance, and the defendant who originally created the defect by his negligence will be held liable along with the intermediary. The intermediary's conduct, however, will become a superseding cause if it was more than ordinary foreseeable negligence. A defendant who assembles a product from components manufactured by others is liable for the negligence of the actual manufacturer, even though the assembler is not personally

In a products liability case based in negligence, a plaintiff may recover _________.

In a products liability case based in negligence, a plaintiff may recover personal injury and property damages as under the usual negligence analysis. If the plaintiff's complaint is only that the product does not work as well as expected or requires repairs (i.e., no personal injury or property damages), most courts do not permit recovery of damages for economic losses under a negligence theory; the plaintiff must bring an action for breach of warranty. Thus, only personal injury damages or only damages for economic loss are incorrect.

The defense of consent is not available if:

If the plaintiff consented due to a mistake induced by the defendant, the defense of consent is not valid. The general rule is that if a plaintiff consents by mistake, the defense of consent is still valid, unless the defendant caused the mistake or knew of the mistake and took advantage of it.If the plaintiff is incapable of consent because she is unconscious, the defense of consent may still be valid in certain situations. Consent to unauthorized contact may be implied by law in an emergency situation when action is necessary to save the plaintiff's life. Consent will be implied in such a case if the plaintiff is incapable of consenting and a reasonable person would conclude that contact is necessary to prevent death or serious bodily harm.If the plaintiff's consent was induced by fraud as to a collateral matter, the defense of consent is still valid. The fraud must go to an essential matter for the consent to be nullified.If the plaintiff consented due to threats of legal action, the defense of consent is still valid. Consent obtained by duress is invalid. However, threats of future action or future economic deprivation do not constitute duress sufficient to invalidate consent.

products liability action based on inadequate warnings

In a products liability action based on inadequate warnings, the plaintiff may rely on a presumption that an adequate warning would have been read and heeded as a means of showing actual cause. A product's compliance with government labeling requirements for warnings is NOT conclusive evidence that a product is not defective; it merely acts as evidence that it is not defective, but the plaintiff may present evidence to the contrary. Furthermore, state products liability law is NOT preempted by federal labeling requirements for warnings. A product may comply with federal labeling requirements but still be defective due to inadequate warnings.

A products liability action based on strict liability :

In a products liability action based on strict liability, the element of negligence need not be proved. 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. The products liability prima facie case based on either negligence or strict liability requires proof of damages for recovery. As with a products liability action based on negligence, one based on strict liability does NOT require privity. A majority of courts extend strict liability to any supplier in the chain of distribution and extend the protection not only to buyers but also to the buyer's family, guests, friends, and employees, along with foreseeable bystanders. Neither products liability cases based on negligence nor those based on strict liability permit recovery of solely economic losses. The types of damages recoverable under both theories are the same: personal injury and property damages. Economic loss cannot be the sole damage claim.

In a strict products liability action based on breach of an implied warranty, which of the following U.C.C. alternatives have most states

In a strict products liability action based on an implied warranty, with regard to the issue of horizontal privity, most states extend implied warranty protection to a buyer's family, household, and guests who suffer personal injury. Section 2-318 of the Uniform Commercial Code offers states three alternate versions on the issue of horizontal privity. The alternative here, Alternative A, has been adopted by most states and is the narrowest modification of the privity requirement. Most states do NOT extend implied warranty protection to any natural person who suffers personal injury or to any person who suffers any injury. These alternatives, Alternative B and C respectively, are broader modifications of the privity requirement than Alternative A and have not been adopted by most states. Unlike with vertical privity, on which the U.C.C. remains silent, the U.C.C. is not silent on the issue of horizontal privity. As stated above, U.C.C. section 2-318 offers states three alternative versions on the issue of horizontal privity.

For a products liability action based on strict tort liability:

In a strict products liability action, a defendant may be liable even if there was no chance to inspect the defective product. 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. For a strict products liability action, the plaintiff need NOT prove that the defendant was at fault in selling or producing a defective product, only that the product was in fact "defective." The defendant WILL be liable if an intermediary negligently failed to discover the defect after it left the defendant's control. An intermediary's negligence is not a superseding cause under proximate cause rules.

The "shopkeeper's privilege" allows a shopkeeper to avoid liability for false imprisonment when detaining a suspect that he reasonably believes has committed a theft. The shopkeeper also must:

In addition to having a reasonable belief as to the fact of theft, a shopkeeper is required to conduct the detention in a reasonable manner and detain the suspect for a reasonable period of time for the privilege to apply. By statute in some states and case law in others, shopkeepers have been given a privilege to detain someone suspected of shoplifting and thus avoid liability for false imprisonment. The following conditions must be satisfied: There must be a reasonable belief as to the fact of theft;The detention must be conducted in a reasonable manner and only nondeadly force can be used; andThe detention must be only for a reasonable period of time and only for the purpose of making an investigation. A shopkeeper is not required to notify the police in a reasonable amount of time to avoid liability for false imprisonment when detaining a suspect for shoplifting.

WD: Intra-family tort immunities?

In most states, either spouse may maintain a tort action against the other Most states have abolished interspousal immunity. Hence, either spouse may now maintain a tort action against the other. Under the traditional view, one family member could NOT sue another family member in tort for personal injury. This view has undergone substantial change in most states. To the extent that intra-family tort immunity exists, it applies to personal, not property, injuries. Thus, a family member CAN maintain a tort action against another family member for damage to property.

PL: vertical privity requirements for actions based on breach of implied warranties of merchantability and fitness?

In the past, vertical privity between the plaintiff and defendant was required, but today most courts do not require vertical privity in these actions In actions based on breach of implied warranties of merchantability and fitness, in the past, vertical privity was required, but today most courts do not require vertical privity. In the early period of warranty law, courts held strictly to the requirement of complete privity between the plaintiff and the defendant. However, 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 longer require vertical privity between the buyer and the manufacturer in implied warranty actions.

PL: theories of liability available to plaintiffs in products liability cases?

Intent, strict liability, and implied fitness for a particular purpose Intent, strict liability, and implied fitness for a particular purpose are possible theories of liability in a products liability case. Plaintiffs in products liability cases may have one of five possible theories of liability available to them: (i) Intent; (ii) Negligence; (iii) Strict liability; (iv) Implied fitness for a particular purpose and warranties of merchantability; and (v) Representation theories (express warranty and misrepresentation). Nuisance is not a possible theory of liability; rather, it is a type of harm distinct from products liability.

What is the rule regarding damages for intentional infliction of emotional distress?

Intentional infliction of emotional distress requires proof of actual damages. A plaintiff cannot recover nominal damages from this tort. However, proof of physical injuries is not necessary; rather, severe emotional distress must be established

What is the effect on a tavernkeeper of a "Dramshop Act"?

It creates a cause of action against the tavernkeeper in favor of third persons injured as a result of the intoxication of the tavernkeeper's patron. A "Dramshop Act" creates a cause of action against the tavernkeeper in favor of third persons injured as a result of the intoxication of the tavernkeeper's patron. 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. Dramshop Acts change this result in many states by creating the cause of action described above. Hence, it does not restrict the common law rule of vicarious liability; it changes the rule of no liability. The rule does not make the tavernkeeper primarily liable and the patron secondarily liable; the patron's liability is unchanged. Also, it does not create a cause of action in favor of a patron of the tavernkeeper; most Dramshop Acts do not apply to injuries suffered by the intoxicated patron.

In a jurisdiction applying traditional contributory negligence rules in a strict liability case

It is a total defense that the plaintiff knew of the danger and acted unreasonably. In a strict liability case, it is a total defense that the plaintiff knew of the danger and acted unreasonably. Application of traditional contributory negligence rules to strict liability actions results in the following rules: If a plaintiff simply failed to realize the danger or guard against its existence, the plaintiff's contributory negligence is no defense. However, if the plaintiff knew of the danger and his unreasonable conduct was the cause of the harm from the danger, the plaintiff has committed "knowing" contributory negligence (i.e., a type of assumption of risk) and will be barred from recovery. It would not be a total defense that the plaintiff failed to guard against the existence of a danger. The plaintiff has to know the danger. "Unknowing" contributory negligence is not a defense in a contributory negligence state. It would not be a partial defense either that the plaintiff knew of the danger and acted unreasonably or failed to guard against the existence of a danger. These answer choices more accurately describe what would occur in many comparative negligence states,

PL: A product has a manufacturing defect if

It is dangerous due to a departure from the intended design. A product has a manufacturing defect if it is dangerous due to a departure from its intended design. To recover under any products liability theory, the plaintiff must show that a product was "defective" when it left the defendant's control. This "defect" requirement will be satisfied if a product has a manufacturing defect. A product has a manufacturing defect if it emerges from production different from other products and more dangerous than if it had been made the way it should have been, such that it is unreasonably dangerous. If a less dangerous modification is possible, the product is dangerous due to inadequate warnings, or an alternative design will eliminate injury during use, the product does not have a manufacturing defect but rather a design defect. When all of 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. A product has a design defect if there is a reasonable alternative design, i.e., a less dangerous modification or alternative that was economically feasible. The court will look at several factors to determine if there is a feasible alternative, such as avoidance of injury by care in use of the product. A product may also have a design defect if it does not have clear and complete warnings of any dangers that may not be apparent to users.

What is an Immunity?

It is something that insulates the defendant from liability due to her status, position, or relationship to the plaintiff. It used to be that there were significant and absolute immunities; for instance, spouses couldn't sue spouse in tort due to spousal immunity; the government couldn't be sued due to sovereign immunity; and so on. The modern trend is to limit or abolish most immunities, so they don't pose nearly as significant an obstacle to plaintiffs as they used to.

Several and Joint liability

Joint and several liability may apply even when the plaintiff's injury is divisible Joint and several liability may apply even when the plaintiff's injury is divisible. In general, 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. While ordinarily joint and several liability does not apply when the plaintiff's injury is divisible, when two or more tortfeasors act in concert and injure a plaintiff, then each will be jointly and severally liable for the entire injury even though the injury is divisible and one can identify what each tortfeasor has done alone. Joint and several liability does not mean that each tortfeasor is liable for his severable portion of the damage incurred; rather, it means that each is liable to the plaintiff for the entire damage incurred. Joint and several liability also does not require that the tortfeasors act in concert; joint and several liability applies even though each tortfeasor acted entirely independently.

WD: Under the public duty doctrine, a duty owed to the public at large is not owed to any particular citizen unless there is a special relationship between the municipality and the citizen. What are factors for showing that a special relationship exists?

Knowledge on the part of the municipality's agents that failure to perform the duty could lead to harm. The citizen's justifiable reliance on the municipality's affirmative undertaking. Some form of direct contact between the municipality's agents and the citizen. The municipality's collection of fees from the citizen is not a factor in determining whether a special relationship exists under the public duty doctrine. A special relationship can be shown by: (i) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (ii) knowledge on the part of the municipality's agents that inaction could lead to harm; (iii) some form of direct contact between the municipality's agents and the citizen; and (iv) that party's justifiable reliance on the municipality's affirmative undertaking.

Charitable immunity status

Largely abolished or limited (typically abolished for charity hospitals)

Spousal immunity status

Largely abolished or limited; some states abolish only for intentional torts; others for all torts, intentional and negligent.

Parent/child immunity status

Limited in most states to matter relating to the exercise of parental discretion . No immunity for negligent acts unrelated to such parenting issues (e.g., driving a car negligently and hurting your child gives rise t o no immunity in most states today)

VL regarding automobile owner

Many states hold the owner vicariously liable for the tortious conduct only of a family member driving his automobile States applying the permissive use doctrine hold an owner liable for damages caused by anyone driving his car, with consent Many states by statute or judicial precedent have adopted the "family car" doctrine, by which the owner is vicariously liable for the tortious conduct only of an immediate family member driving his automobile with the owner's express or implied permission. This is an exception to the general rule that an automobile owner is NOT vicariously liable for the tortious conduct of another driving his automobile. A number of states have gone further by enacting "permissive use" statutes, which hold an owner liable for damages caused by anyone who is driving the owner's car, but only WITH his express or implied consent.

Under the doctrine of respondeat superior, an employer:

May be liable for an intentional tortious act committed by an employee Under the doctrine of respondeat superior, an employer is vicariously liable for tortious acts committed by his employees if the tortious acts occur within the scope of the employment relationship. Under this doctrine, an employer may be liable for an intentional tortious act committed by an employee. While the general rule is that intentional tortious conduct by employees is not within the scope of employment, courts will find intentional tortious conduct to be within the ambit of this relationship when (i) force is authorized in the employment; (ii) friction is generated by the employment; or (iii) the employee is furthering the business of the employer. An employer is not liable for ALL tortious acts committed by his employees; the acts must be within the scope of the employment relationship. An employer is NOT liable for the tortious frolics of his employees. An employee on a delivery or 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

PL: horizontal privity in actions based on breach of implied warranties of merchantability and fitness?

Most states extend implied warranty protection to cover a buyer's family, household, and guests who suffer a personal injury For an action based on breach of an implied warranty, most states have extended implied warranty protection to cover a buyer's family, household, and guests who suffer personal injury. Thus, it is inaccurate to state that most states still require horizontal privity in all implied warranty cases. U.C.C. section 2-318 offers states three alternative versions on the issue of horizontal privity. Most states have adopted Alternative A, described above and with the most narrow protection. Only a few states have adopted Alternative B, which extends protection to any natural person who suffers a personal injury. Alternative C extends protection to any person who suffers any injury.

Parental immunity v. negligent physical injury of child

No parental immunity. At common law under "intrafamily tort immunity" one family member could not sue another for torts resulting in personal injury. Today, states have either abolished intrafamily tort immunity or limited it to negligence suits involving uniquely parenting decisions.

VL w/ independent contractor

Not - The principal negligently selected the contractor However, Is - The contractor is engaged in an inherently dangerous activity Is - The contractor's activity involves a nondelegable duty A principal's vicarious liability for the torts of her independent contractor does not depend on whether the principal negligently selected the contractor. This is not vicariously liability. Rather, the employer may be liable for her own negligence in selecting or supervising the independent contractor. In general, a principal will not be vicariously liable for tortious acts of an independent contractor. Two broad exceptions exist, however: (i) if the independent contractor is engaged in an inherently dangerous activity (e.g., excavating next to a public sidewalk, blasting, etc.), or (ii) if it involves a nondelegable duty because of public policy considerations (e.g., the duty of a business to keep its premises safe for customers).

Which of the following is not a possible theory of liability in a products liability case?

Nuisance is not a possible theory of liability available to a plaintiff in a products liability case. A nuisance is a type of harm—an invasion of private property rights or public rights by tortious conduct that falls into the usual categories of tort liability, such as negligence, intent, or strict liability. Intent, implied warranty of merchantability, and misrepresentation are all possible theories of liability available to a plaintiff in a products liability case. There are five possible theories:1. Intent (not very common);2. Negligence;3. Strict liability;4. Implied warranties of merchantability and fitness for a particular purpose; and 5. Representation theories (express warranty and misrepresentation)

Nuisance defined

Nuisances are types of harm For an interference to be characterized as unreasonable in a nuisance claim, the severity of the injury must outweigh the utility of the defendant's conduct. In balancing these respective interests, courts take into account that every person is entitled to use his own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courses of conduct open to the defendant. If the opposite is true, i.e., the utility of the defendant's conduct outweighs the severity of the injury, the interference will not be considered unreasonable. The plaintiff's right to exclusive possession is not weighed against the utility of the defendant's conduct; the right to possession is protected by trespass law rather than nuisance law.

WD: Wrongful death statutes?

One cannot recover for the deceased's pain and suffering It is correct that one cannot recover for the decedent's pain and suffering in a wrongful death action. The measure of recovery in wrongful death actions under most statutes is for the resulting pecuniary injury to the spouse and next of kin, e.g., loss of support, loss of consortium, etc. Recovery for the decedent's pain and suffering would be an element of a personal injury survival action brought on behalf of the decedent, but not part of a wrongful death action. Creditors of the decedent may NOT bring a wrongful death action. In some jurisdictions, the personal representative is the proper party to bring the actions; in others, the surviving spouse or next of kin might be the proper party. Wrongful death actions DO provide recovery for loss of support. The pecuniary injury resulting to the spouse and next of kin is the measure of damages in a wrongful death action.

Which of the following applies to self-defense for an intentional tort?

One who is the initial aggressor may be able to defend himself. Usually, the initial aggressor may not defend himself against the other party's reasonable use of force in self-defense. However, if the other party uses deadly force against an aggressor who had only used nondeadly force, then the aggressor may defend himself against that deadly force. It is incorrect that one must have an actual necessity to defend oneself. The actor need only have a reasonable belief as to the other party's actions: i.e., apparent necessity, not actual necessity, is sufficient. Hence, one could make a reasonable mistake as to the existence of the danger and still maintain the defense. Also it is incorrect that one must attempt to retreat first before using self-defense. A substantial majority of the courts hold that one need not attempt to escape, but may stand his ground and even use deadly force when necessary to prevent death or serious bodily harm. Some courts impose a duty to retreat before using deadly force when safe to do so, unless the actor is in his home.

When can contributory negligence of one person be imputed to another?

Only when there is vicarious liability Contributory negligence will be imputed only when there is vicarious liability, i.e., when the plaintiff and the negligent person stand in such a relationship to each other that the courts find it proper to charge the plaintiff with that person's negligence. Hence, it is incorrect to state that contributory negligence can never be imputed. Respondeat superior is a type of vicarious liability based on an employment relationship; however, contributory negligence will be imputed in other vicarious liability situations.

For a products liability case based on intent:

Privity is not required for a products liability case based on intent. Whether the parties to the suit are in contractual privity with each other is irrelevant for a products liability action based on an intentional tort. A defendant will be liable to anyone injured by an unsafe product if the defendant intended the consequences or knew that they were substantially certain to occur. Punitive damages are available for a products liability case based on intent. As with other intentional torts, punitive damages are available if the defendant acted with malice. Most courts hold that consent is a defense for a products liability case based on intent. The usual defenses available in intentional tort cases, such as consent, are available here. However, negligence defenses like contributory negligence and assumption of risk are not applicable. Causation is relevant for a products liability case based on intent. Causation is one of the necessary elements to establish a prima facie case for an intentional tort.

products liability case based on intent

Punitive damages are available in a products liability case based on an intentional tort, in addition to compensatory damages, to the same extent as with intentional torts in general. Products liability based on an intentional tort is NOT very common. A defendant will be liable to anyone injured by an unsafe product under an intent theory if he intended the consequences or knew that they were substantially certain to occur. This is not often the case; other theories of liability are more common. The intentional tort on which the cause of action most likely will be based is NOT assault. If the requisite intent on the part of the defendant is established, the cause of action will most likely be based on battery. The presence or absence of privity is irrelevant where liability is based on an intentional tort. A defendant will be liable to anyone injured by an unsafe product if the defendant intended the consequences or knew that they were substantially certain to occur, even if the parties are not in contractual privity.

WD: What does it mean to say that an action for interference with family relationships is "derivative"?

Recovery for interference depends on the potential success of the injured family member's own action Saying that an action for interference with a family relationship is derivative means that recovery for interference depends on the potential success of the injured family member's own action. Thus, any defense that would prevent recovery by the injured family member will also prevent recovery in the derivative action for interference with a family relationship. Furthermore, a defense against a family member seeking such a derivative recovery may also defeat the action. Hence, it is not correct to say that recovery for interference is separate from the injured family member's own cause of action. Accordingly, if the injured family member was contributorily negligent, this WILL prevent or reduce recovery by the spouse for interference with a family relationship.

Immunities and status (vary from state to state)

Spousal immunity Parent/child Charitable Governmental immunity Governmental officials

Like a nuisance action, a products liability action may be based on various theories of liability Which of the following list possible theories of liability for a products liability claim?

Strict liability, negligence, and implied warranties of merchantability and fitness for a particular purpose are three of the five theories of liability for products liability. The other two are intent and express warranty. Nuisance (per se or otherwise) is not a possible theory of liability for products liability.

Nuisance fact

The defendant cannot continue an activity that is a nuisance merely because it was in existence before the plaintiff's arrival The fact that the defendant did not foresee a risk of harm will not negate a claim of strict liability for an abnormally dangerous activity. To prevail, a plaintiff need only show that a reasonable person could have foreseen the risk of harm, regardless of whether the defendant did not. If the plaintiff was not foreseeable, the strict liability claim is not established. The defendant's liability for an abnormally dangerous activity extends only to foreseeable plaintiffs, who are persons to whom a reasonable person would have foreseen a risk of harm under the circumstances. Note, though, that the nature of the abnormally dangerous activity may create a large class of foreseeable plaintiffs. If the type of harm was not foreseeable, the plaintiff cannot establish a strict liability claim. The harm must result from the kind of danger to be anticipated from the abnormally dangerous activity; i.e., it must flow from the "normally dangerous propensity" of the condition or thing involved. An unforeseeable intervening force may allow a defendant to avoid liability in a strict liability action for an

Nuisance fact

The defendant cannot continue an activity that is a nuisance merely because it was in existence before the plaintiff's arrival. "Coming to the nuisance" generally is not a viable defense to a nuisance action. The defendant cannot continue an activity that is a nuisance merely because it was in existence before the plaintiff's arrival. While the defendant's priority in time may be a factor in evaluating reasonableness, 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 harassing lawsuit. In certain circumstances, a private party can recover damages for a public nuisance; the private party must have suffered some unique damage from the nuisance not suffered by the public at large. Even though an activity is authorized by a zoning ordinance, it may still be a nuisance; i.e., the ordinance is relevant but it is not conclusive evidence that the use is not a nuisance. A plaintiff is permitted to enter on the defendant's land and personally abate a nuisance after notice to the defendant and the defendant's refusal to act. The force used may be only that necessary to accomplish the abatement, and the

What does not negate a claim of strict liability for an abnormally dangerous activity?

The defendant did not foresee a risk of harm. Damages is a required element of the prima facie case for strict liability. To establish a prima facie case of strict liability, the following elements must be shown: The nature of the defendant's activity must impose an absolute duty to make safe;The dangerous aspect of the defendant's activity must be the actual and proximate cause of the plaintiff's injury; andThe plaintiff must suffer damage to person or property. Breach of duty is not an element of the prima facie case for strict liability; rather, it is an element of a negligence cause of action. Neither an abnormally dangerous activity nor a product with a dangerous defect is required to establish a prima facie case of strict liability. Strict liability may be imposed in both of those situations, but it may also be imposed in other instances, such as for a trespassing animal or a wild animal that causes harm.

PL: To prove breach of duty in a products liability action based on negligence, the plaintiff must show

The defendant supplied a defective product To prove breach of duty in a products liability action, the plaintiff must show (i) negligent conduct by the defendant leading to (ii) the supplying of a defective product by the defendant. Negligent conduct is demonstrated by showing that the defendant's conduct fell below the standard of care expected of a reasonable person under like circumstances, not the level of care generally exercised by the defendant. To show negligence in a manufacturing defect case, the plaintiff may invoke res ipsa loquitur, but it is not required that the plaintiff prove res ipsa loquitur in establishing breach of duty. A plaintiff may show that a product was dangerous because it departed from its intended design to establish a manufacturing defect, but may instead show that the design itself is deficient (to establish a design defect).

The doctrine of transferred intent may not be invoked for which of the following torts?

The doctrine of transferred intent may not be invoked for intentional infliction of emotional distress. The doctrine of transferred intent permits an intent to commit a tort against one person to be transferred to another tort or person. It may be invoked for battery, false imprisonment, and trespass to chattels. Transferred intent may be invoked only if the tort intended and the tort that results are one of the following: Assault;Battery;False imprisonment;Trespass to land; andTrespass to chattels.

VL to employee bearings

The employee was furthering the business of the employer. Force was authorized in the employment. Friction was generated by the employment. However, The employee was negligently supervised by the employer has no bering because of direct liability Vicarious liability is derivatively imposed liability. The fact that the employee was negligently supervised by the employer has no bearing on whether the employer will be vicariously liable for the employee's intentional torts; rather, it will make it more likely that the employer will be directly liable for its own negligence. In contrast, the fact that force was authorized in the employment, friction was generated by the employment, or the employee was furthering the business of the employer make it more likely that the employee's intentional torts will be found to be within the scope of employment.

PL: prevention establishing causation against a manufacturer in a strict products liability action

The failure of a retailer to take action after discovering a dangerous defect; The same concepts of proximate cause that govern negligence and strict liability actions are applicable to strict liability actions for defective products. As with products liability cases based on negligence, the negligent failure of a retailer to discover a dangerous defect does not cut off the supplier's strict liability. On the other hand, when the intermediary's conduct becomes something more than ordinary foreseeable negligence, it becomes a superseding cause. Hence, the conduct of a retailer who discovered a dangerous defect and then took no action (such as alerting the manufacturer, warning the consumer, or removing the product from sale) constitutes more than ordinary foreseeable negligence and may cut off the manufacturer's liability. The destruction of the product because of its dangerous defect does not prevent establishing actual cause. If the product has been destroyed, the plaintiff may rely on an inference that this type of product failure ordinarily would occur only as a result of a product defect

If a jurisdiction has adopted __________, a driver may be vicariously liable for the tortious conduct of someone driving her car with her permission as long as the driver was a member of her family or household.

The family car doctrine If a jurisdiction has adopted the family car doctrine, a driver may be vicariously liable for the tortious conduct of someone driving her car with her permission as long as the driver was a member of her family or household. In contrast, a permissive use statute imposes liability for damage caused by anyone driving with such permission. An owner may be directly liable under a negligent entrustment doctrine for letting a dangerous driver drive her car, but this is not vicarious liability.

Strict liability In a state retaining traditional contributory negligence

The plaintiff's contributory negligence is a defense, if the plaintiff knew of the danger of an abnormally dangerous activity and his unreasonable conduct caused the activity to miscarry In a state retaining contributory negligence rules, the plaintiff's contributory negligence is a defense in a strict liability action if he knew of the danger and his unreasonable conduct was the very cause of the dangerous activity miscarrying. 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. Thus, the plaintiff's contributory negligence MAY be a defense. The plaintiff's contributory negligence, however, will NOT be a defense if the plaintiff only failed to realize the danger of the abnormally dangerous activity or guard against its existence. This is known as unknowing contributory negligence.

For an interference to be characterized as unreasonable in a nuisance claim:

The severity of the injury must outweigh the utility of the defendant's conduct "Coming to the nuisance" generally is not a viable defense to a nuisance action. The defendant cannot continue an activity that is a nuisance merely because it was in existence before the plaintiff's arrival. While the defendant's priority in time may be a factor in evaluating reasonableness, 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 harassing lawsuit. In certain circumstances, a private party can recover damages for a public nuisance; the private party must have suffered some unique damage from the nuisance not suffered by the public at large. Criminal activity MAY be the basis for a public nuisance action. A public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community, including using a building to commit criminal activities such as prostitution, bookmaking, etc.

For purposes of private nuisance, the interference with the plaintiff's use of the land is unreasonable if:

The severity of the plaintiff's inflicted injury outweighs the utility of the defendant's conduct. The interference with the plaintiff's use of the land will be considered unreasonable under nuisance law when the severity of the plaintiff's inflicted injury outweighs the utility of the defendant's conduct. In balancing these respective interests, courts take into account that every person is entitled 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. Whether the interference is offensive or annoying to an average person in the community is the test for whether the interference is substantial, which is a separate requirement for establishing a nuisance. Whether the remedy of damages is unavailable or inadequate determines only whether the plaintiff may be able to obtain an injunction remedy. A nuisance is sometimes called a "nuisance per se" when it is based on strict liability (e.g., a nuisance arising from an abnormally dangerous activity).

What is the rule for when an undiscovered trespasser is injured by the landowner's wild animal?

The trespasser must prove negligence by the landowner to recover If an undiscovered trespasser is injured by a landowner's wild animal, the trespasser must prove negligence by the landowner to recover. The general rule is that the landowner is NOT held strictly liable to undiscovered trespassers. Trespassers cannot recover for injuries inflicted in the absence of negligence (e.g., as where the landowner knows that trespassers are on the land and fails to warn them of the animal). A landowner under a public duty to keep the animals is treated no differently; the public duty exception applies to licensees or invitees who are injured on land where the landowner is under a public duty to keep the wild animals. In such cases, negligence must be shown.

Which of the following must a plaintiff prove to establish intentional infliction of emotional distress from the defendant's intentional commission of physical harm against a third person?

To establish intentional infliction of emotional distress for harm caused to another person, a plaintiff must prove that the defendant knew the plaintiff was present. When a defendant intentionally causes severe physical harm to a third person and the plaintiff suffers severe emotional distress because of her relationship to the injured person, the plaintiff is generally required to show: (i) the plaintiff was present when the injury occurred to the other person; (ii) the plaintiff was a close relative of the injured person; and (iii) the defendant knew that the plaintiff was present and a close relative of the injured person. Proof that the plaintiff was at least a close friend of the injured party is not sufficient. As stated above, the plaintiff must show that he was a close relative of the injured person. It is also insufficient that the plaintiff came upon the scene within a reasonable time of the incident. As stated above, the plaintiff must prove that he was present when the injury occurred to the other person.

The most complete statement of the transferred intent doctrine is that an intent to commit a tort against one person can be transferred to:

Transferred intent is defined as intending to commit a tort against one person but the intent is transferred to another tort or person. The transferred intent doctrine applies where the defendant intends to commit a tort against one person but instead (i) commits a different tort against the same person; (ii) commits the same tort as intended but against another person; or (iii) commits a different tort against a different person.

Courts have held tavernkeepers liable for the acts of an intoxicated customer:

Under Dramshop Acts and under ordinary negligence principles Courts have held tavernkeepers liable for the acts of an intoxicated customer under Dramshop Acts and under ordinary negligence principles. At common law, a tavernkeeper could be held liable under no circumstances, because 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. Furthermore, several courts have imposed liability on tavernkeepers even in the absence of a Dramshop Act. This liability is based on ordinary negligence principles (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liability.

How is an action for breach of express warranty different from an action for breach of the implied warranty of merchantability?

Unlike in an action for breach of the implied warranty of merchantability, an action for breach of express warranty does not require that the warranty be made by a merchant dealing in the type of goods sold. The warranty may apply to any sale of goods. Privity is NOT required in express warranty actions. Although U.C.C. section 2-318 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. Purely economic losses are recoverable in BOTH express warranty actions and implied warranty actions (unlike the rule for products liability actions based on negligence or strict liability).

In contrast to products liability cases based on negligence, those based on strict liability do not:

Unlike with products liability cases based on negligence, those based on strict liability do not require that suppliers have an opportunity to inspect. Thus, for a case based on the sale of a defective product, a retailer in a strict liability action may be liable for a manufacturing or design defect simply for being a commercial supplier of that defective product, even if it had no opportunity to inspect the manufacturer's product before selling it. In a negligence action, the supplier's negligence must be proved. Products liability cases based on negligence and those based on strict liability both require that an injured bystander be foreseeable. While privity is not required in these cases, and bystanders are protected and may bring a claim under either theory, they must be foreseeable. Liability under these theories applies to foreseeable plaintiffs. Products liability cases based on negligence and those based on strict liability both prohibit recovery of solely economic losses. The types of damages recoverable under both theories are the same: personal injury and property damages

WD: Under the public duty doctrine, a duty owed to the public at large is not owed to any particular citizen unless there is a special relationship between the municipality and the citizen. special relationship for the public duty doctrine?

Whether there has been direct contact between the municipality's agents and the injured party Under the public duty doctrine, no liability exists for failure to perform a public duty absent a special relationship between the municipality and the injured party. A special relationship can be shown by (i) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (ii) knowledge on the part of the municipality's agents that inaction could lead to harm; (iii) direct contact between the municipality's agents and the injured party; and (iv) that party's justifiable reliance on the municipality's affirmative undertaking. Whether the activity involves the exercise of discretion is relevant as to whether liability may arise for the activity, but it is not relevant to whether a special relationship is present. Similarly, whether the municipality collects fees for the performance of the service may be relevant as to whether liability may arise for the negligent performance of the service, but it is not relevant to whether a special relationship is present.

Strict Liability factors for trespassing animal

Whether the damages caused were reasonably foreseeable Whether the animal was a household pet However, Whether the owner knew about the trespass, does not apply Whether the owner knew about the trespass is not a factor for strict liability for a trespassing animal. The owner may be liable even though he used reasonable care to keep his animals from trespassing and was not aware of the trespass. The owner is strictly liable for the damage done by the trespass of his animals other than household pets as long as the damage caused was reasonably foreseeable.

Which of the following is not correct with regard to a products liability action based on inadequate warnings?

While ordinarily warnings must be directed to consumers, under the "learned intermediary" rule, warnings of dangers need not be made directly to the patient as to prescription drugs and medical devices; a warning to the prescribing physician usually will suffice. With regard to inadequate warnings in a products liability action, a product must have clear and complete warnings of any dangers that may not be apparent to users. Inadequate warnings are analyzed like design defects, not like manufacturing defects. Courts will look at whether more effective warnings were feasible. A warning may be held inadequate even though it complies with government labeling requirements. A product's compliance with applicable government safety standards (including labeling requirements) is evidence—but not conclusive—that the product is not defective. Furthermore, federal labeling requirements do not preempt state products liability law on defective warnings.

With regard to a trespass to chattels, intermeddling is defined specifically as conduct that:

With regard to a trespass to chattels, intermeddling is defined specifically as conduct that directly damages a plaintiff's chattel. A prima facie case of trespass to chattels requires proof of an act by the defendant that interferes with a plaintiff's right of possession in the chattel. The act of interference generally takes two forms: dispossession and intermeddling. Intermeddling involves conduct by a defendant that in some way directly damages the plaintiff's chattel, e.g., denting his car, striking his dog, etc. Intermeddling does not involve conduct by a defendant that dispossesses a plaintiff of his lawful possessory right in the chattel. This more accurately defines the type of interference with a chattel known as dispossession. Defining intermeddling specifically as conduct that interferes with a plaintiff's right of possession is inaccurate because it is too broad; it describes the general conduct that is required for the prima facie case of trespass to chattels. Any act of interference will suffice for this tort; intermeddling is one of the two most common forms of conduct that the act of interference typically will take (the other is dispossession).

WD: What is true regarding actions for wrongful death?

Wrongful death actions do not allow for recovery of the decedent's pain and suffering However, Only the personal representative of the decedent may bring the action is incorrect, as well as, Creditors of the decedent have a claim against the amount of recovery awarded Wrongful death actions do not allow any recovery for a decedent's pain and suffering; those damages would be an element of a personal injury survival action brought on behalf of the decedent. The measure of recovery in wrongful death actions under most statutes allows recovery for loss of support, loss of companionship, etc. The personal representative of the decedent is NOT the only party that may bring a wrongful death action. In some jurisdictions, the personal representative is the proper party to bring the action; in others, the surviving spouse or next of kin is the proper party. Creditors of the decedent have NO claim against the amount of recovery rewarded

WD: An action for loss of services or consortium may be brought by __________ for injuries to __________ caused by the defendant's tortious conduct.

a spouse or parent; a spouse or child An action for loss of services or consortium may be brought by a spouse for injuries to the other spouse or a parent for injuries to a child. 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. Similarly, a parent may maintain an action for loss of the child's services and consortium when the child is injured as a result of the defendant's tortious conduct. However, this type of action cannot be brought by any family member for injuries to any other family member; for example, it cannot be brought by a child for injuries to a parent in most states.

Potential defendants in a products liability case based on negligence

wholesalers B parts manufacturers C assemblers; however Not technicians

Governmental immunity status

depends on whether the government you're talking about is federal, sate, or local Federal: Greatly diminished by the Federal Torts Claims Act (FTCA), which allows negligence claims against the federal government, as well as most intentional tort claims based on actions by federal investigative or law enforcement officers. An important exception is for discretionary decisions made by federal employees involving public policy making. State: Largely limited City: Some states make distinctions between proprietary and governmental functions and abolish immunity for proprietary functions. Proprietary functions are functions that normally would be carried out by the private sector - e.g., providing electricity or building and maintaint streets. Governmental functions are functions that are uniquely governmental - e.g., police, fire, courts, public parks.

The right of contribution among tortfeasors __________.

does not apply against a tortfeasor who is immune from liability The right of contribution among tortfeasors is a device whereby responsibility is apportioned among those who are at fault. However, it does not apply against a tortfeasor who is immune from liability. If the contribution tortfeasor has a defense that would bar liability, such as intra-family tort immunity, she is not liable for contribution. In most states, contribution is based on relative fault of the various tortfeasors rather than on equal shares of the overall liability. Contribution does not provide for apportionment of damages in the absence of joint and several liability; rather, it can only operate in response to joint and several liability, because it allows any tortfeasor required to pay more than his share of damages under joint and several liability rules to have a claim against the other jointly liable parties for the excess. Contribution does NOT apply to intentional torts in most states.

A principal will be vicariously liable for the tortious acts of her independent contractor __________.

if the independent contractor is engaged in inherently dangerous activities Two broad exceptions exist, however: (i) The independent contractor is engaged in inherently dangerous activities, e.g., excavating next to a public sidewalk, blasting; or (ii) The duty, because of public policy considerations, is simply nondelegable, e.g., the duty of a business to keep its premises safe for customers. A principal will be vicariously liable for the tortious acts of her independent contractor if the independent contractor is engaged in inherently dangerous activities. In general, a principal will not be vicariously liable for tortious acts of an independent contractor. Two broad exceptions exist, however: (i) The independent contractor is engaged in inherently dangerous activities, e.g., excavating next to a public sidewalk, blasting; or (ii) The duty, because of public policy considerations, is simply nondelegable, e.g., the duty of a business to keep its premises safe for customers. Respondeat superior is the doctrine that makes employers vicariously liable for the torts of employees; it does not apply to independent contractors. A principal may be liable for negligently selecting or supervising an independent contractor. However, that liability is for her own negligence; it is not vicarious liability.

SI: Retaining SI on claims

interference with contract rights battery discretionary acts Waived for conversion Under the Federal Tort Claims Act, the United States has waived its immunity for tortious acts by government employees except for certain enumerated torts. Conversion is not one of the enumerated torts; hence, immunity is waived for that tort. Immunity is retained for (i) assault, (ii) battery, (iii) false imprisonment, (iv) false arrest, (v) malicious prosecution, (vi) abuse of process, (vii) libel and slander, (viii) misrepresentation and deceit, and (ix) interference with contract rights. In addition, the immunity is not waived for "discretionary" acts, as distinguished from "ministerial" acts. 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.

WD: In a wrongful death action, a defense against a potential beneficiary __________.

is analyzed under the jurisdiction's comparative negligence rules In a wrongful death action, a defense against a potential beneficiary is analyzed under the jurisdiction's comparative negligence rules. Thus, the total damage award assessed by the jury will be reduced by the amount withheld from the beneficiary. A beneficiary's negligence does not bar the wrongful death action, nor does it automatically bar the beneficiary from recovering damages; the latter would happen only if the jurisdiction has adopted partial comparative negligence and the beneficiary was the most at fault. A jurisdiction's joint and several liability rules apply to the liability of multiple tortfeasors rather than the rights of beneficiaries in a wrongful death action.

In products liability actions based on strict liability, a majority of states apply their comparative negligence rules to take into account the plaintiff's fault. Some states, however, apply traditional contributory negligence rules in these cases. In the latter states, it is a complete defense that the plaintiff was injured from the defective product by:

it is a complete defense if the plaintiff was injured by unreasonably using the product knowing that it was defective. In a strict products liability action in a state applying contributory negligence rules, unreasonable conduct, such as voluntarily and unreasonably encountering a known risk (i.e., assumption of risk), is a complete defense. Misusing the product in a foreseeable manner is not a defense. Ordinary contributory negligence is not a defense in a strict products liability action where the plaintiff's misuse was reasonably foreseeable. Unreasonably failing to discover a defect or guard against a potential defect is not a defense. In a strict products liability action in states following contributory negligence rules, ordinary contributory negligence is not a defense where the plaintiff merely failed to discover the defect or guard against its existence.

If the owner of a car lets his friend use the car and the friend negligently causes an accident, the owner will be vicariously liable __________.

only if the jurisdiction has a permissive use statute The owner will be vicariously liable if the jurisdiction has a permissive use statute. While the general rule is that an automobile owner is not vicariously liable for the tortious conduct of another driving his automobile with permission, a number of states have enacted permissive use statutes imposing liability for damage caused by anyone driving with such permission. The family car doctrine imposes vicarious liability for the tortious conduct of immediate family or household members who are driving with the owner's express or implied permission. That doctrine would not apply to a driver unrelated to the owner. While the owner always will be liable for his own negligence, many jurisdictions have developed the vicarious liability rules discussed above.

SI: Many jurisdictions apply their immunity to _________ functions.

public duty ministerial discretionary Many jurisdictions retaining municipal immunity do not apply their immunity to proprietary functions. A function will be deemed proprietary if it might as well have been provided by a private corporation. In contrast, a governmental function is one that traditionally could only have been performed adequately by the government. The distinction between ministerial and discretionary functions is made in many jurisdictions that have abolished immunity rather than retained it. In those jurisdictions, immunity is not abolished for discretionary functions, i.e., those at the planning or decisionmaking level. Similarly, many jurisdictions abolishing immunity do not abolish it for public duty functions; a duty owed to the public at large is not owed to any particular citizen absent a special relationship between the municipality and the citizen

A plaintiff recovering from one joint tortfeasor may not proceed against another joint tortfeasor if there has been __________.

satisfaction If the 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 a satisfaction, however, she may proceed against other jointly liable parties. A release is a surrender of the plaintiff's cause of action against the party to whom the release is given. Most states provide that a release of one tortfeasor does not discharge other tortfeasors unless expressly provided in the release agreement. Indemnity and contribution involve how the liability is shifted among the tortfeasors once the plaintiff has obtained a satisfaction of her judgment.

A nuisance action may be based on __________.

strict liability, negligence, or intent A nuisance action may be based on strict liability, negligence, or intent. A nuisance is not a separate tort in itself, but rather a type 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. Like nuisance, products liability is a type of harm that may be based on different theories of liability.