TORTS II FINAL

What are the three types of modified forms of Comparative negligence?

(1) 49 Percent bar (2) 50 percent bar (3) 51 Percent bar. In all these, a plaintiff is barred from recovery if their percentage of fault was EQUAL OR MORE to the respective jurisdiction. They are barred from recovering anything,.

What are the Elements of Strict Liability?

(1) Absolute duty to for Defendant to make situation safe (2) Breach of duty to make safe (3) Actual cause and Proximate Cause (4) Damage to person or property

What can be determined as acting within the scope of an employment under vicarious liaibility?

(1) Acting in furtherance of the employer's business (2) Exercise of control of employer over employees actions

Direct liability and Vicarious liability are not tort _______, they are tort ______

(1) Actions (2) Concepts

Who can be sued under the implied warranty of fitness for a particular purpose?

(1) Any seller with special knowledge (2) may be a professional seller

Under certain enumerated torts, the U.S. Government is still protected under governmental immunity. Such as:

(1) Assault (2) Battery (3) False Imprisonment (4) False Arrest (5) Malicious Prosecution (6) Abuse of Process (7) Misrepresentation and deceit (8) Interference with contractual rights

What are the defenses to defamation?

(1) Consent (2) Truth (3) Absolute Privilege (4) Qualified Privilege

What are the two tests used to determine if a design defect is unreasonably dangerous?

(1) Consumer expectation test (2) Reasonable alternative design test

Who can sue in an express warranty claim for products liability?

(1) Consumers, (2) user (3) bailees (4) lessees

What are the elements of a joint enterprise? (vicarious liability)

(1) Express or implied agreement to engage in enterprise (2) Common purpose or goal (3) Common pecuniary interest (4) Equal right to control the direction of the business with the owner's consent (right to equal voice)

What are the elements of defamation?

(1) False Statement (2) of or concerning the plaintiff (3) Published (must be communicated in an understandable fashion to some third person) (4) Damages

Strict liability applies for the keeping of _______. What are the elements?

(1) Keeping of animals (2) Vicious propensity of the animal (3) Scienter (actual knowledge of the vicious propensity

What are two other terms for Strict Liability?

(1) Liability without fault (2) Absolute liability

In what three ways can a product be defective for a strict product liability claim?

(1) Manufacturing defect (2) Design Defect (3) Failure to adequately warn

For an implied warranty of merchantability claim in products liability to proceed, the person being sued must be a:

(1) Merchant dealing in goods sold

The Government is not protected in regards to immunity from ________ acts, but is protected for _______ functions, even ______ _______ functiinos

(1) Ministerial (2) Discretionary (3) negligent discretionary

What are the basic elements of a strict products liability claim?

(1) Plaintiff needs to prove that the defendant is a MERCHANT of the goods involved (2) Must prove the product is defective (3) Product is in the same condition now as when it left the hands of the seller (4) Plaintiff must show that she was using a foreeable use of the product.

What are the elements of a contributory neligence defense?

(1) Plaintiffs duty to protect self (2) plaintiffs own conduct created an unreasonable risk of harm for himself

The Government is NOT immune from ________ functions, meaning they can be held liable when:

(1) Proprietary functions (2) When injuries arose from the government acting like a private business on their own behalf/or for the benefit of their own citizens.

Who can SUE in a claim under the implied warranty of fitness for a particular purpose?

(1) Purchaser, (2) family household member, (3) Guests

What are the 4 categories of defamation per se?

(1) Statements that impugn one's trade or profession (2) Statements that accuse plaintiff of serious crimes (3) Statements that suggest someone has a "loathsome disease" (Aids, HIV, etc.) (4) Statements that accuse a woman of unchastity

For a manufacturing defect to apply, the defect must be

(1) different from the other products (2) Must be that difference that makes the product dangerous

Elements of a Negligence cause of action

(1) duty the defendant has to plaintiff (2) breach of duty (3) Causation, Actual and Proximate, (4) Damages

to proceed in a strict liability theory products liability claim, you must be suing a

(1) manufacturer (2) wholesaler/distributor (3) retailer of goods.

Who can sue in a products liability under the implied warranty of merchantability?

(1) purchaser (2) family household members (3) guests

what are the four types of Comparative negligence jurisdictions?

(1) pure form (2) 49 percent bar (3) 50 percent bar (4) 51 percent bar

Under the slight majority, a parent and child can?

A child can sue their parent and a parent can sue a child.

What must a defendant show for an assumption of risk defense for strict products liability?

A defendant must show that the plaintiff used a defective product WHILE KNOWING THAT THE PRODUCT WAS DEFECTIVE.

What is a comparative negligence defense?

A jurisdiction where plaintiff's damages are computed and reduced by the proportion which plaintiff's fault bears to the total fault of Plaintiff's injuries.

What is the Assumption of risk defense?

A negligent Defender's defense stating that the verbal or written consent, or conduct or behavior of the plaintiff manifested the consent.

Parent-Child Immunity?

A parent may bring an action for loss of a child's services or consortium when the child is injured because of the defendant's tortious conduct

What is the General Rule of Parent and Child situations in vicarious liability?

A parent will NOT be held liable for the tortious acts of his child UNLESS the tort was committed while acting as an agent for his parent.

The Last Clear Chance serves as ______

A plaintiffs response to a contributory negligence defense.

Bailment for Vicarious liability

A situation in which the personal property of one person (a bailor) is entrusted to another (a bailee), who is obligated to return the bailed property to the bailor or dispose of it as directed.

what is the view on injuries to property within family members?

A suit for property may most of the time be maintained by any family member towards another family member.

What is a Direct Liability concept?

Actions brought against an employer or. master for his/her own negligence in hiring, supervising, or retaining an employee or servant

What is the federal torts claims acts?

An act created by the government that states the U.S. has waived immunity for tortious conduct. The Federal Government may be held liable, as an individual would.

Vicarious liability DOES NOT APPLY where...

An employee or servant substantially deviates for purely personal reasons.

What are the exceptions to the general contractor rule for vicarious liability?

An employer's insulation from liability in a Independent contractor situation can be insulated when: (1) failing to use reasonable care in hiring a comptent employee or independent contractor (2) Negligent instructions (3) failure to inspect completed work of the independent contractor (4) failure to require that precautionary rules be followed and (5) failure to use reasonable care in situtations where the employer retains or exercises supervision or control over work thats done.

What kind of animals are likely to be included for the trespassing animals strict liability rule?

Animals of the kind likely to ROAM (include cattle, horses, sheep, chickens, pigeons).

What is the general rule for automobile owner's and driver's in vicarious liability?

Automobile owner's will NOT be held vicariously liable for the tortious acts of the driver, UNLESS there is a family car or purpose doctrine, or permissive use statute in the jursidiction.

What is the general rule of a Bailor and Bailee situation:

Bailor will NOT be held vicariously liable for the tortious acts of the bailee.

What are some examples of abnormally dangerous or ultra-hazardous activity?

Blasting, mining, oil wells, virus creations, chemicals.

Today, by statute or judicial decisions, governmental immunities have been

CONSIDERABLY LIMITED

What is the common law rule for slander?

Common law rule is that spoken defamation (slander) the plaintiff is required to prove SPECIAL DAMAGES that demonstrate actual econmic harm.

Under strict liability theory for products liability, ________ _______ will not be a defense unless the plaintiff was _______

Contributory Negligence; RECKLESS

An immunity does not _________ but rather denies the resulting liability of the defendant

DENY THE TORT HAPPENED

Frolic v.s. Detour in Vicarious Liability

Detour = MINOR departure from an employee's duties, but still considered acting within the scope. Frolic = MAJOR Departure from the scope of the employment for emplopyee's own benefit.

Family Car Doctrine exception

Doctrine of Vicarious liability that holds that owner is liable for tortious conduct of the immediate family or household member driving with the implied or express permission of the owner.

What is the general rule regarding independent contractors and vicarious liability?

EMPLOYER'S WILL NOT BE HELD liable for the tortious acts of an independent contractor.

Joint Venturer and Partner General Vicarious liability rule

Each partner or joint venturers will be held vicariously liable for the tortious conduct of the other member's acting within the scope and course of joint venture enterprise.

What is the general rule as to Masters and Servants (Employer and Employees) in Vicarious liability?

Employer or master may be held vicariously liable if the tortious act was committed WITHIN THE SCOPE of the employment.

An assumption of risk could be ____ or ____

Express (written or verbal) or implied (conduct or behavior the plaintiff manifests)

To prove a design defect under a negligence theory, a plaintiff must usually prove:

Facts that show that a reasonable person in the designer's position on notice that the product was dangerous.

Strict Liability and abnormally dangerous activity

Generally, one who carries out an abnormally dangerous activity is subject to liability to the land, chattel, or person of another, EVEN THOUGH he or she has exercised the utmost ability to avoid that kind of harm.

Strict liability for animals does not include _______

HOUSEHOLD PETS

Strict Liability for home builders and construction

In most jurisdictions, the owner developer of tract housing is subject to strict liability if an injury results from an unreasonably dangerous defect in a house he constructed.

What are the two types of defamation?

Libel and slander

Wild animals in strict liability cases usually include:

Lions, tigers, bears, elephants, wolves, rattlesnakes, alligators, killer bees, GUARD DOGS, ostriches, tsetse flies and any other animal that cannot be fully tamed.

Strict PRODUCTS liability applies only to a _________ of the goods

MERCHANT

What makes a manufacturing defect applicable for a strict products liability claim?

Means that product that hurt plaintiff is different in some other way than the same product which reached all other customers.

What is the modern view on interspousal immunity?

Most States have abolished interspousal immunity, either spouse may maintain a tort action against each other.

Traditionally, it is _______ ______ to say that the plaintiff has been negligent in the way he handled the product.

NO DEFENSE

An employer can also be held liable for the work of an independent contractor if the duties are _______

NON-DELEGABLE. Meaning that certain responsibilities cannot be delegated due to public policy, existence of the law, or work that is personal to the employer.

Products liability theory may also proceed under a ______ theory, where it may be shown that:

Negligence, commercial and other sellers of goods are under a duty to use reasonable care, under the circumstances to avoid placing defective products on the market.

An owner of a vehicle can be held liable for the tortious conduct of a driver via ________ which is

Negligent entrustment, which is the direct liability of the auto owner.

What is the exception to personal injury caused by a wild animal?

No strict liability if the harm caused by the animal does not result from a dangerous feature that is a characteristic of that species of animal.

What is the exception to house hold pets in vicarious liability?

ONE BITE RULE. Applies where an owner knew or should have known about the dangerous propensity of the domesticated animals because of a PREVIOUS incident.

What is the general rule regarding strict liability and food?

One who sells any product in a defective condition unreasonably dangerous to the user or consumer on his property is strictly liable for physical harm caused if: (1) the seller is engaged in the business of selling such a product; and (2) it is expected to and does reacht eh user or consumer without substantial change in the condition which it is sold

Permissive Use of Law statutes in Vicarios Liability

Owner is liabile for harm caused by anyone driving within an owner of a vehicle's consent.

What does a plaintiff assert in a negligence action?

Plaintiff asserts that defendant failed to exercise reasonable care to protect the plaintiff, thereby causing harm to plaintiff

In a contributory negligence jurisdiction, what is the modern majority view?

Plaintiff is BARRED from recovery regardless of how small his percentage of fault was.

If not stated an exam, one should always assume that a comparative negligence state is ____ ____

Pure form!

What is the technical definition of products liability?

STRICT PRODUCTS LIABILITY

Most jurisdictions will allow a plainitff to recover presumed damages if the defamation falls into the presumed category of ____ ____

Slander/Libel per se

What is the general rule to personal injuries caused by wild or dangerous animals?

Strict liability is imposed on the keeper or the possessor of the wild animal, so long as the injured person did not voluntarily or consciously provoke the attack.

What is the rule for trespassing animals in strict liability cases

Strict liability is imposed on the possessors of all animals for harm resulting from the trespass of such animals on another's property.

A landowner is stricly liable for personal injuries inflicted by vicious watchdogs even to ________ _____________

UNKOWN TRESPASSERS

An employer can also be held liable for the work of an independent contractor if the work done by the I.C. involves _______ _______

Ultrahazardous work that requires a risk more than ordinary precaution.

What is the Modern Law view on Tavern Keeper's and Patrons in Vicarious Liaiblity

Under Modern Law, many states have enacted dramshop laws. These laws allow third persons to sue drinking establishments for the harm caused by intoxicated persons.

What is the COMMON LAW View of Tavern Keeper & Patron Vicarious liability?

Under common law, a tavern keeper was not half vicariously liable for the tortious acts of an intoxicated person.

________ ________ may not recover for injuries under a strict liability theory caused by _______ _____

Unknown trespassers, Domestic animals.

The Journey to and from work ordinarily does not constitute a situation with ______

Vicarious liability.

What is the consumer expectation test?

Where a product is unreasonably dangerous if it fails to perform as safely as an ordinary consumer would expect, if used in a reasonably foreseeable manner.

What is imputed negligence in Vicarious laibility?

Where an employee negligently entrusts performance of his work to a third person. An employer may be liable.

What is Vicarious Libaility?

Where an employer is liable for his or her employees tortious acts that are committed within the scope of employment, that cause injuries or property damages to a third person.

What is a design defect in a strict products liability theory?

Where there was a reasonable alternative deisgn that existed, and there was a cost-effective way to make product safer but the seller failed to do so.

Most states impose liability on parents for _________ and _________ torts by minor children

Willfull and intentional

What is the common law rule for libel?

Writing (libel), the jury is allowed to presume damages.

Can children bring actions against a defendant?

YES! A child can bring an action against a person who tortiously injures their parents under a MINORITY RULE.

Malice must only be proven in a defamation case to defeat a __________ or where a plaintiff is a _________ or ________

a qualified privilege, or where the plaintiff is a public official or public figure.

who can be sued under an express warranty for products liability?

any seller of products, provided the existence of an express warranty can be proven.

Where there is an immunity in a negligence claim, one ____

avoids liability under all circumstances within the limits of the immunity itself.

A product may also be qualified as "unreasonably dangerous" even if the design embodies:

excessive, preventable danger, or the risk of danger inherent in the design outweighs any benefit.

Strict liability for food applies even where a seller:

has exercised ALL POSSIBLE CARE in the preparation and sale of his product, and the user or consumer has not bought the product from or entered into any contractual relation with the seller.

There can still be liability for a product under products liability if the product is ______ __________

inherently dangerous

What does a plaintiff assert in a Last Clear Chance defense?

that the Defendant had the last opportunity to avoid harming the plaintiff, and failed to do so.

What does the element of the product being in the same condition now as when it left the sellers mean?

that the defect EXISTED when it left the sellers hand. have to prove that the product at least moved in ordinary channels of distribution.

Intermediate sellers may also be liable under a negligence theory if it can be shown that:

the intermediate seller knows or has reason to know of a products defect and sells it anyway, WITHOUT AT LEAST warning the customer of the defect.

Under a consumer expectation test, if a product ______

works as designed, and as consumers expect, then there is no liability.