Torts MC

Prima facie elements of interfernce with business relations

(i) existence of a valid contractual relationship between plaintiff and a third party or a valid business expectancy of plaintiff; (ii) defendant's knowledge of the relationship or expectancy; (iii) intentional interference by defendant that induces a breach or termination of the relationship or expectancy; and (iv) damage to plaintiff. - Thus, a plaintiff has a cause of action for interference with probable future business relationships for which the plaintiff has a reasonable expectation of financial benefit. - On the other hand, an interferer's conduct may be privileged where it is a proper attempt to obtain business for the interferer, particularly if the interference is only with a prospective business relationship rather than with an existing contract. What is proper depends on various factors, including the means of persuasion used.

The plaintiff was driving inattentively when she had to swerve to avoid two other negligently driven vehicles at a busy intersection, and her car struck a light pole. The plaintiff, who was the only driver injured, sued one of the other drivers to recover damages in a jurisdiction that has adopted pure comparative negligence. The jury determined that she suffered injuries of $100,000 and was 50% at fault. If the plaintiff is awarded a recovery of only $25,000 from the defendant, what will be the most likely reason?

- Correct answer: The jurisdiction has abolished joint and several liability. - saying the jurisdiction applies contribution based on a pro rata approach rather than proportional fault is *wrong.* the rule of contribution, regardless of whether it is based on a pro rata approach or a proportional fault approach, does not affect how much the plaintiff receives from a defendant. Rather, it enables a defendant who has paid more than his share of damages to the plaintiff under joint and several liability to seek recovery against any other joint tortfeasor for the excess paid.

Under the attractive nuisance doctrine, does a child trespasser who is injured by a dangerous artificial condition need to have been attracted onto the property by the condition?

- No

A trucker owned and operated a small truck which he used commercially to haul dynamite to construction sites. Unbeknownst to the trucker, there was a hidden defect in the latch that held the rear panel of the truck. The trucker was hauling a load of dynamite one morning and exceeding the speed limit when his truck struck a bump in the road, the latch malfunctioned, and the rear panel of the truck flew open. One box of dynamite fell out of the truck and struck a pedestrian, breaking her foot. If the pedestrian sues the trucker under strict liability for her injuries, will the pedestrian win?

- No, because the dynamite did not explode. - NOTE: read q carefully! This is only asking about SL, not negligence (where they would probably lose!)

A company that was the leading supplier of home water filtration systems had a network of sales promoters who were under contract for two- or three-year terms and were compensated solely by commissions earned from sales and by occasional bonuses. Veteran promoters also earned commissions by recruiting other promoters for the company. One of the company's veteran promoters was contacted by a former top sales representative for another manufacturer who was looking for similar sales opportunities in the region. The sales rep knew that the promoter might be able to get her a position with his company, which was looking for additional promoters. At the time he met with the sales rep, the promoter's contract with the company had one more month to run. When the promoter's contract with the company expired, he announced that he was forming his own business to market a different line of water filtration systems manufactured by a competitor of the company, and that the sales rep would be in charge of his promotional network. The company brought an action against the promoter for interference with business relations for hiring the sales rep. At a preliminary hearing, the parties stipulated to the above facts and that the promoter was an independent contractor rather than an employee of the company. The promoter then filed a motion for a summary judgment in his favor. Should the court grant the promoter's motion?

- No, because the jury could find that the means the promoter used to obtain the sales rep were not privileged. - Here, the promoter's conduct would not be privileged if the jury were to find that he improperly used his position with the company to develop a relationship with the sales rep

A child was severely injured at an amusement park when she was ejected from a ride that went slightly off its track. The ride malfunctioned as a result of a manufacturer's defect, but had the child been properly secured in the ride's seatbelt by one of the ride operators, she would not have been injured. The child was unable to identify which ride operator improperly buckled her in. In the child's suit against the amusement park, who will win?

- The child will win, because a ride operator failed to use reasonable care in securing the seatbelt. - vicarious liability for negligence in scope of employment

Products Liability SL

- class of P: any foreseeable user or bystander (need not be actual purchaser) - class of D: any person in manuf chain (wholesaler, retailer, component part maker, etc.) - Defenses: 1) assumption of risk: can be complete defense unless jx applies comparative fault rules to SL. also, ordinary contributory negligence is ALWAYS wrong 2) product misuse: unforeseeable misuse of the product 3) adequate warnings: can provide valid defense, but if you are manuf does not mean you are off the hook if you have. Is the warning understandable, prominently displayed, is it conspicuous? If so, its valid. Also, a clear warning is insufficient if harm was easy for manuf to fix

Negligence of doctors

- duty to disclose material risks so that a patient can make informed consent -material: risk an objectively reasonable patient would want to know -lack of informed consent = breach - but still must show cause and damges

IIED

- extreme and outrageous conducts - done intentionally or recklessly - that causes severe emotional distress

A tenant moving into a new apartment bought a spool of "10-pound test" fishing line, manufactured by a fishing tackle and accessories company, for the purpose of hanging pictures, all of which she knew weighed less than 10 pounds. The spool came with no guidelines or warnings about using it for hanging objects. She attached the fishing line to either end of the pictures and hung them on hooks on the wall. The next week, a friend visiting the tenant was hit and injured while sitting on the couch by a picture that fell when the fishing line broke. It is common knowledge in the sporting goods industry that "10-pound test" indicates that the line will stand a pull of 10 pounds, but is not intended to support a 10-pound weight over a period of time. However, it is also common knowledge in the industry that the public in general uses fishing line to support heavy hanging objects over a period of time. The friend brought a products liability action based on strict liability against the tackle company for damages caused by his injury. What is the most likely result?

- The friend will win, because the label did not warn the consumer against relying on the term "10-pound test" for purposes other than fishing. - The most likely result is that the friend will prevail on grounds of an information defect due to the inadequate warnings. If a product presents an unreasonable risk of injury to users and bystanders, the fact that there is no sufficient warning of the danger may be a dangerous defect that will invoke strict products liability. The facts establish that the fishing tackle company knew that purchasers of its fishing line commonly used that line to support heavy hanging objects, and that the line would not support the weight rating in that type of use. Thus, the fishing tackle company's failure to provide a warning may be a defect that will permit the friend to recover in strict liability.

A physician performed scheduled surgery on her patient's right ear for a condition caused by prolonged and repeated infections in that ear. During the surgery, the physician determined that her patient had been particularly susceptible to this condition due to a previously unsuspected anatomical abnormality. The physician reasonably believed that this same abnormality was likely to exist in the patient's left ear. Though the patient had not had many infections in the left ear, if a similar course of recurring infections were to transpire involving that ear, it would probably develop the same condition as the right and require surgery. The physician therefore decided to perform surgery on her patient's left ear, although she had received his consent only to operate on the right ear. The surgery was performed with due care and was successful. In an action by the patient against the physician, what is the likely result?

- The patient will recover at least nominal damages on a battery theory. - The patient will recover at least nominal damages. The patient here need only show that the extension of the operation was an intentional, unpermitted, offensive contact in order to recover at least nominal damages in battery. The patient may recover in battery regardless of whether she was harmed. Battery is a tort where no physical harm need be shown, and no actual damage need be proven - no negligence case because no harm suffered

Standard of care when a person has a disability

- The standard changes when the defendant has a major physical disability such as blindness. In that situation, the standard becomes ordinary and reasonable care for a person with that disability

What must P show in a *negligence* product design case

- To establish this, the plaintiff must show that those designing the product knew or should have known of enough facts to put a reasonable manufacturer on notice about the dangers of marketing the product as designed. Negligent design is not shown, however, if the danger of the product becomes apparent only after the product reaches the public. Hence, the absence of any previous complaints about this problem would be most helpful to the manufacturer. - note: An intermediary's negligent failure to notice a defect does not relieve the liability of a manufacturer whose original negligence was the cause of the defect.

An inexperienced worker who was instructed to clean the floors of a store mixed ammonia and chlorine bleach in a large pail. Both he and a customer who was standing nearby were overcome by fumes and suffered lung damage. The customer sued the worker, alleging negligence. In defense, the worker presented uncontroverted evidence that he could not read the warning labels on the containers and that, while he knew he was mixing ammonia and bleach, he had never been made aware of the danger of mixing the two chemicals. Nevertheless, the jury found him liable for the customer's injuries. If the worker challenges the verdict on appeal, how should the appellate court rule?

- Uphold the verdict, because it was a determination that a reasonable person should have known of the danger. - The defendant must act as would a person of average mental ability, and he is deemed to have knowledge of things known by an average member of the community; individual shortcomings or ignorance of that particular defendant are not considered. - Here, the verdict of negligence was a determination by the jury that a reasonable person should have known of the danger, regardless of the fact that the defendant did not. Hence, the verdict should be upheld because there is no basis in the facts for overturning it.

Two members of a backgammon club owned identically sized, red backgammon boards. The first member's board was made of cheap material while the second member's board was quite expensive. One night, after a competitive tournament, the two members met in the finals, playing on a borrowed board. The second member won and the first member, visibly upset, mistakenly grabbed the other's board and drove home. As was her custom, she left the board in the trunk of her car. Meanwhile, the owner of the board discovered the board switch and drove to the first member's apartment to make an exchange. The first member took the second to her parking place and saw that her car had been stolen. The police recovered the car days later, with no backgammon board in the trunk. The second member demanded a replacement board, but was refused. In an action to recover the board's value, will the second member recover?

- Yes, because when the board was stolen along with the car, the first member became liable for conversion. - conversion: A conversion occurs when the defendant intentionally causes serious interference with the chattel of the plaintiff. The intent involved refers to the physical act that results in the conversion, not to the defendant's desires regarding the ultimate disposition of the property. Therefore, the first member was guilty of conversion when she intentionally (i.e., volitionally) took the second's board, which resulted in its loss, even though the first member did not intend to lose it or even realize that she had taken the property of another. - not a trespass to chattel b/c entire loss of expensive board is much more than a mere trespass

If a court determines D prevented a larger harm by failing to comply with the applicable criminal statute, the court should ____ the defendant's motion for directed verdict

- grant - even if its proven D violated duty and breach via NPS, violation of the statute may be excused where compliance would cause more danger than violation or where compliance would be beyond the defendant's control. If so, P has not established prima facie case of negligence, and D should be awarded directed verdict

Suffering physical harm: IIED v. NIED

- not required for IIED - required for NIED

P breaks D's leg. P was in no way negligent. P then claims to rescue D, but leaves him there alone, where it rains and D suffers pnumonea. What is P liable for

- pneumonia, NOT the broken leg - not negligent in breaking leg, so no damages there - created the peril, and defendant has a duty to make reasonable efforts to rescue the imperiled person or render aid to his victim

Intentional Torts and Threats

- threat alone insufficient to create a reasonable apprehension of a battery for an assault - threat alone is sufficient for false imprisonment

A local entertainment section of a newspaper published a story on the town's business district, accompanied by photos of various businesses in the district. A minister who happened to be walking on the sidewalk in front of an adult bookstore when a photo was taken for the story became very upset when he saw it in the newspaper, because the camera angle made it appear that he was exiting the bookstore. If the minister sues the newspaper for invasion of privacy and establishes the above facts, is he likely to prevail?

- yes because the photo made it appear as if he was exiting an adult bookstore (i.e. places him in a false light) -(i) publication of facts about plaintiff by defendant placing plaintiff in a false light in the public eye; and (ii) the "false light" must be something that would be highly offensive to a reasonable person under the circumstances. -Note if this were a public concern, Actual malice by the defendant when the published matter is in the public interest

A jogger not paying attention to where he was going collided with an elderly woman in a wheelchair, injuring her. The woman, who was mentally incapacitated, was being pushed down the sidewalk by her daughter, who was also her legal guardian. After the accident, the daughter did not take the woman to the doctor for treatment because the daughter had an unreasonable fear of catching a virus at the doctor's office. As a result, the woman's wounds became infected and took longer to heal. What argument provides the woman with her best chance to recover against the jogger for all of her injuries?

-Any unreasonable conduct on her daughter's part is not to be imputed to the woman. - The woman's best argument is that her daughter's refusal to take her to a physician, if deemed to be negligent, is not imputed to her. A plaintiff has a duty to take reasonable steps to mitigate damages. Thus, in personal injury cases, there is a duty to seek appropriate treatment to effect healing and to prevent aggravation. Failure to do so will preclude recovery for any particular item of injury that occurs or is aggravated due to the failure to mitigate. Thus, the woman's not consulting a doctor could limit her recovery to the damages for the original injury only. However, she is incapacitated and in the care and control of a legal guardian (her daughter), who decided not to bring her to a doctor. In actions against a third party, a legal guardian's negligence is not imputed to the person under her care.

NIED elements:

1) D creates foreseeable risk of physical injury to P 2) P must be within zone of danger 3) P must suffer physical symptoms from the distress However, a bystander outside the zone of danger from physical injury, but suffers emotional distress from seeing the defendant harm another person negligently by proving 1) P and victim are closely related 2) P present at scene of injury 3) P personally observed or perceived the event

Duty Owed to a Rescuer

A person whose negligence creates a situation in which he needs to be rescued may be held liable for injuries incurred by his rescuer. - All of the circumstances will be considered when evaluating the conduct of the rescuer, including the excitement of the accident and the speedy response of the rescuer. A rescuer is a foreseeable plaintiff as long as the rescue is not reckless; hence, the defendant is liable if he negligently puts himself in peril and the plaintiff is injured attempting a rescue. A plaintiff may take extraordinary risks when attempting a rescue without being considered contributorily negligent. The emergency situation is one of the factors taken into account when evaluating the plaintiff's conduct. - assumption of risk may be applicable, depending on the circumstances, such as if the rescue were reckless - while the court can conclude that the rescuer recklessly put himself in danger, this is not an absolute defense

Negligent Infliction of Emotional Distress: Bystanders

A duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. For a bystander who is outside the zone of danger from the risk of physical injury but who suffers emotional distress from seeing the defendant negligently injure another, most states allow recovery if: (i) the plaintiff and the person injured by the defendant are closely related; (ii) the plaintiff was present at the scene of the injury; and (iii) the plaintiff personally observed or perceived the event. - D wins if P unforeseeable or if beyond zone of danger of D's negligence

Duty owed to Licensee

A licensee is one who enters on the land with permission for his own purpose or business and includes social guests. The owner or occupier owes a licensee a duty to warn of or make safe a dangerous condition known to the owner or occupier that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover. The owner or occupier does not have a duty to inspect for defects or to repair known defects.

In support of a charity fundraising luncheon, three volunteers independently brought to the event a casserole dish made with ground beef. Each of them had prepared her dish in her own kitchen. Another volunteer combined the dishes onto one large serving platter, from which guests at the luncheon served themselves. One of the guests became seriously ill with what the health department later determined to be a bacterial infection from undercooked beef that was in the combined casserole. The guest brought an action against the three volunteers who made the casserole dishes, alleging negligent preparation of the ground beef. Assuming that the guest can establish only the above facts and his injuries, who is likely to prevail in the action?

Answer: The volunteers, because the guest cannot establish which of the volunteers breached her duty of care. - *no RIL:* plaintiff must establish evidence connecting a particular defendant with the negligence to support a finding of liability against that defendant. When more than one person was in control of the instrumentality that caused the injury, such as here, res ipsa loquitur generally may not be used (unless a joint venture) - *no Summers v Tice* - when two or more persons have been negligent but it cannot be determined which one caused the plaintiff's injury. The court will shift the burden of proof to each of the negligent defendants to show that his negligence was not the actual cause of the injury. Here, however, there is no evidence that all of the volunteers were negligent; most likely, just one of them was. Hence, the volunteers will not be required to prove that they did not cause the guest's injury.

Elements of Defamation

D-P-D-P-D 1) defamatory statement of fact 2) publication 3) damages - 3a: general damages, injury to reputation - 3b: pecuniary damages. not required for slander per se and libel 4) Plaintiff's status - P must prove fault and falsity 4a: public figure/official = actual malice 4b: private p, public concern: negligence 4c: private p private concern= nothing 5) defenses 5a: truth 5b: privilege (absolute or qualified)

A driver was operating his vehicle along a residential street at the posted speed limit when he saw a ball roll across the street. The driver did not slow down because the ball cleared his path before he reached it. A few seconds later, a child darted out into the street after the ball without looking for cars. The driver's car struck the child, and the child was injured. The child's parents brought an action on the child's behalf against the driver in a jurisdiction that follows traditional contributory negligence rules. At trial, the above facts were established. At the close of the evidence, the driver moved for a directed verdict. What should the court do?

Deny the driver's motion, because it will be up to the jury to determine whether he should have slowed down to below the speed limit. - Negligence of children's parents does not matter, because would not cut off the child's claim against the driver, because the driver's negligence would remain both an actual and a proximate cause of the accident-even if parental negligence was also a cause. A parent's negligence ordinarily is not imputed to a child, and no other basis appears from the fact pattern for doing so. Hence, the driver's motion would not be denied for that reaso - The child's negligence in contributory negligence is not a defense here. Child can be contrib neg. however, a child, however, is usually held to the standard of a reasonable child of like age, intelligence, and maturity. The facts tell us nothing about the child's age, intelligence, and maturity, and it will be up to the jury to determine whether the child was negligent - Driving the speed limit would not grant the driver a directed verdict, because reasonable care in the circumstances could require driving at less than the speed limit, as noted above.

A feed store owner agreed to purchase several tons of grain products at a specified price from a large supplier of cattle feeds. The supplier later failed to deliver the promised grains, and the owner was forced to cover by purchasing from local producers at a higher price. The owner contacted a large law firm in the city and obtained their agreement to represent him in connection with his possible claims against the supplier. Due to error, the applicable statute of limitations period passed without the filing of any action on the owner's behalf. The owner retained another lawyer and sued the large law firm for malpractice. The jurisdiction retains traditional contributory negligence. In addition to the firm's negligence, what else does the owner have to establish as part of his prima facie case?

He would have recovered from the supplier if an action had been timely filed. - Here, the owner can establish that the law firm breached its professional duty of care by failing to file a claim within the statute of limitations. He must also establish that this breach was an actual and proximate cause of his damages, which here would be the loss of the contract damages that he could have recovered from the breach by the supplier.

Only intentional torts that require showing damages are

IIED- intentionally or recklessly causing severe emotional distress, mental trauma and/or bodily harm to another (note: need not be physical harm) trespass to chattel conversion

A mother whose young son was riding on a roller coaster by himself for the first time walked some distance away to get a snack. She heard a commotion by the ride and saw a crowd gathered. When she came closer, she heard someone close to the scene say that a young boy had fallen off and was killed. She was very distraught but could not see through the crowd. In fact, it was not her son but another boy who had fallen off. That boy had struck her son while falling from a higher part of the track, resulting in injuries to her son. The mother, who was pregnant, ultimately suffered a miscarriage as a result of accident-related stress. In a previous suit by the parents of the boy who was killed, the ride operator was found liable for negligence in operating the ride. Can the mother recover damages for her distress and resulting miscarriage in an action against the ride operator for negligent infliction of emotional distress?

No, because she was not within the zone of danger from the operator's negligence.

After being notified by a doctor that her employment with his office was terminated, a nurse applied for a position with a hospital. In her application, the nurse listed her former employment with the doctor, with the understanding that the doctor might be contacted. The doctor, in response to a telephone inquiry from the hospital, stated that the nurse "lacked professional competence." Although the doctor reasonably believed that to be a fair assessment of the nurse, his adverse rating was based on an episode of malpractice for which he blamed the nurse but which in fact was chargeable to another doctor. Because of the doctor's adverse comment on her qualifications, the nurse was not employed by the hospital. If the nurse asserts a claim based on defamation against the doctor, will the nurse prevail?

No, because the doctor had reasonable grounds for his belief that the nurse was not competent. - As a former employer responding to queries of a prospective employer about a job applicant, the doctor has a qualified privilege. Such a privilege is not absolute; it exists only if exercised in a reasonable manner and for a proper purpose. The privilege may be lost if the speaker made a statement not within the scope of the privilege or if the speaker acted with actual malice (i.e., knowledge that the statement was untrue or with reckless disregard as to its truth or falsity). Because the doctor had reasonable grounds for his belief, he was not acting with actual malice. - wrong answer: "No, because the nurse authorized the hospital to make inquiry of her former employer". incorrect because permission to make inquiry is not tantamount to consent to be defamed.

A homeowner hired a computer repair technician to fix his computer. The technician discovered that she needed a different type of memory card than she had, so she drove to the local electronics store to get what she needed. On the way back, she stopped at a liquor store to get a bottle of wine for a dinner party she was attending that night. When she was backing out of the parking lot, she negligently knocked over a pedestrian who was walking on the sidewalk adjacent to the parking lot. In a negligence action by the pedestrian against the homeowner, is the pedestrian likely to prevail?

No, because the technician is an independent contractor. - When there is an employer-employee relationship between a principal and his agent, the employer is vicariously liable for torts committed by the employee within the scope of the employment relationship. This is the doctrine of respondeat superior. On the other hand, the general rule is that a principal is not liable for tortious acts of an agent who is an independent contractor. An agent is likely to be an independent contractor if she: (i) is engaged in a distinct business of her own; (ii) controls the manner and method by which she performs her tasks; (iii) is hired to do a particular job; (iv) supplies her own tools and materials; (v) is paid a given amount for the job; and (vi) is hired to do a short-term, specific job. *Despite the general rule, a principal can be held liable for the tortious acts of an independent contractor if: (i) the independent contractor is engaged in inherently dangerous activities; or (ii) the principal has a duty that is nondelegable on public policy grounds (e.g., a land occupier's duty to keep his land safe for business invitees).* Also, a principal can be held liable for his own negligence in selecting an incompetent independent contractor. Here, the homeowner hired a computer repair technician to perform one particular job (fixing the homeowner's computer). From the facts, it appears that the technician provided her own materials and controlled the manner and method in which she did her job. Therefore, the technician is, with respect to the homeowner, an independent contractor rather than an employee. The technician was not engaged in an inherently dangerous activity, nor is there any nondelegable duty of the homeowner involved. In addition, it does not appear that the homeowner was negligent in hiring the technician. Thus, the general rule applies, and the homeowner is not liable for the tortious conduct of the technician. - B) and (C) are wrong because the frolic-detour distinction is inapplicable to these facts. For an employer to be vicariously liable, the tort must have occurred within the scope of the employee's employment. To determine whether the tortious acts occurred within the scope of employment, a distinction is made based on whether the tortious conduct was committed while the employee was on a frolic or on a detour. Small deviations from an employer's directions (a detour) fall within the scope of employment, while major deviations (a frolic) fall outside the scope. Because the technician was not an employee of the homeowner, there is no "scope of employment" issue to be analyzed.

The driver of a tractor-trailer lost control of his vehicle after driving onto an icy bridge in excess of the speed limit and slid off the road. A state trooper responding to the accident got out of his squad car and walked toward the vehicle on the roadway. Before he could set up warning flares or safety cones, a delivery van approached the bridge in the oncoming lane. The van slid on the ice and spun out of control, striking and injuring the trooper. The trooper brought an action against the driver of the delivery van and the driver of the tractor-trailer. Will the trooper prevail as against the driver of the tractor-trailer?

No, because the trooper was injured during the course of his job. - As a general rule, a defendant is liable if he negligently puts himself in peril and the plaintiff is injured in attempting a rescue. However, the "firefighters' rule" will bar firefighters and police officers, on public policy or assumption of risk grounds, from recovering for injuries caused by the risks of a rescue. Here, it was an inherent and foreseeable risk of the job that the trooper might be struck by another vehicle at an accident site. Hence, the trooper probably will not be able to recover

A homeowner contracted for construction of a custom-built, elevated deck in his backyard. The deck's designer supervised the construction, which was carried out by several employees of a local building company. The homeowner was pleased with the appearance of the deck, but the first time he stepped on it, a support on one side of the deck gave way, causing the homeowner to fall and be injured. The homeowner brought an action joining the building company and the deck's designer as defendants, alleging negligence. In his complaint, he alleged that he does not know which of the defendants is responsible for the damages. Which of the following doctrines would be most helpful against the designer?

Res ipsa loquitur. - Res ipsa loquitur means the thing speaks for itself. It is appropriate in situations where an injury does not usually occur unless someone was negligent and the plaintiff does not know which of the defendants caused the injury. While res ipsa loquitur is sometimes not available where more than one person may have been in control of the instrumentality causing the injury, it is available in a case where a particular defendant had the power of control over the site of the injury. Even if the homeowner does not know why the deck collapsed, the deck's designer would be responsible because he designed the deck and was supervising the construction. Hence, res ipsa loquitur likely could be used - Resp sup isnt needed here: That doctrine would be helpful against the building company for any negligence by its employees but not against the designer, because the workers were not the designer's employees

A delivery company employed several messengers to deliver packages by car to nearby towns. The company also allowed some employees to use company cars for personal use from time to time. A clerical employee had her car in a body shop because she had run a red light and been broadsided by another vehicle. This was the second time she had run a light and been hit. She borrowed a company car for the weekend and was using it to do some grocery shopping. The employee negligently went through a red light and crossed the path of a rented van. The man driving the van swerved to avoid the employee and struck a light post and several parked cars, severely damaging the van. At the time of the accident, the driver of the van was exceeding the posted speed limit; he would have been able to avoid hitting the light post and the cars had he been going the proper speed. The leasing company that had rented the van to the driver brought a lawsuit against the delivery company employee and the delivery company. The jurisdiction retains traditional contributory negligence rules. If the delivery company prevails in the lawsuit, what is the most likely reason?

The delivery company had no reason to know that its employee had a poor driving record. - If the delivery company prevails, it will be because it entrusted its car to its employee without having reason to know that she had a poor driving record. In the absence of negligence on the delivery company's part, it will not be liable for its employee's negligent driving either as her employer or as the owner of the automobile she was driving. An employer will be vicariously liable for tortious acts committed by its employee only if the tortious acts occur within the scope of the employment relationship. Here, although the employee was using the company car, she was not conducting any business for the delivery company. Her use of the car to go grocery shopping was a personal errand outside the scope of her employment for which the delivery company is not vicariously liable. The delivery company is also not vicariously liable for permitting its employee to drive its car-the general rule absent a statute to the contrary is that an automobile owner is not vicariously liable for the tortious conduct of another driving the owner's automobile. However, the owner may be liable for its own negligence in entrusting the car to a particular driver. If the delivery company knew or should have known that its employee had a poor driving record, its furnishing the employee with a car would constitute a breach of its duty to other drivers. However, if it is determined that the delivery company had no reason to know of the employee's poor driving record, it will not be liable.

A driver and his passenger were involved in an automobile accident when the driver ran a red light and crashed into another car. Due to a manufacturing defect in the automobile's airbag system, the passenger side airbag did not deploy. The passenger was killed on impact. The passenger's estate brought suit against the driver and the airbag's manufacturer. At trial it is established that the driver was negligent in running the red light. What effect would such proof have on the claim of the passenger's estate against the airbag manufacturer?

The driver's negligence would bar recovery if it was the sole legal cause of the passenger's death. Regardless of the theory that the plaintiff is using in a products liability action, actual and proximate cause must be established. If the driver's negligence is the sole legal or proximate cause of the passenger's death, it would preclude the estate's suit against the airbag manufacturer because the defect was not a legal cause of the passenger's death.

A driver was driving his car negligently along a mountain road. He lost control of his car and careened over the side of a cliff. A jogger saw the driver's car go off the cliff and stopped to see if he could help. The jogger started to climb down the cliff to render aid to the driver. In doing so, the jogger slipped and broke his leg. The jogger sued the driver to recover damages for his broken leg. Regarding any defenses the driver might raise, which of the following statements is correct?

The excitement of the accident and the speedy response of the rescuer would be considered in a case such as this.

When can an employer be liable for torts by an independent contractor?

The general rule is that a principal will not be liable for tortious acts of his agent if the agent is an independent contractor. However, a major exception to this rule applies when the duty, because of public policy considerations, is nondelegable. In these cases, the principal is vicariously liable for the agent's negligence despite the principal's own exercise of due care. A common example of these types of duties is the duty of a business to keep its premises and instrumentalities safe for its customers. This includes the duty of a common carrier, such as a taxi company, to keep its vehicles in safe working order. ex: the cab owner's duty to the passenger, a passenger in his cab, was nondelegable. The negligent conduct of the mechanic who negligently repaired the cab the week prior to the accident that caused the eventual accident is deemed to be that of the owner. The negligent conduct was the actual and proximate cause of the passenger's injuries. Thus, the owner is vicariously liable to the passenger for those injuries.

An eight-year-old girl was playing catch on the sidewalk with her friend when her friend made an errant throw over the girl's head. The ball hit a pedestrian, who was walking on the sidewalk in the other direction. The pedestrian angrily threw the ball into the street. The girl ran out into the street to retrieve it and was hit and seriously injured by a car. If the girl's guardian considers legal action on her behalf against the pedestrian and the driver of the car, which of the following best states the pedestrian's liability?

The girl may have a personal injury claim against the pedestrian for negligence. - Here, throwing the ball into the road created an unreasonable risk of injury to the girl and her friend. The pedestrian knew, or in the exercise of reasonable care should have known, that one or both of the children would run after the ball, exposing them to the danger of being hit by a car. Thus, the general duty of ordinary, reasonable care extended from the pedestrian to the girl, and he breached this duty by throwing the ball into the road. This breach actually caused the girl's injury because the girl would not have been in the road but for the pedestrian throwing the ball there. The breach also proximately caused the girl's injury, despite the fact that the driver was possibly negligent in not watching the road. The driver's conduct was an independent intervening force; however, it was a foreseeable intervening force that brought about a foreseeable result, because the pedestrian's act of throwing the ball into the road created a foreseeable risk that the girl would be hit by a car when chasing after the ball. Thus, the driver's conduct will not cut off the liability of the pedestrian. The final element of a prima facie case for negligence is made out by the damage to the girl's person.

Assault elements

The intentional placing another in reasonable apprehension of an immediate harmful or offensive touching. Elements: 1) Intentionally 2) causing reasonable apprehension 3) of an immediate battery Actual Damages Not Required - nominal damages allowed - punitive damages is allowed if defendant acted with malice

A salesman was employed by a florist, who owned a retail shop adjacent to a large wholesale nursery. The owner of the nursery liked to use a brand-name artificial fertilizer for her plants, although other effective fertilizers were available at comparable prices. She stored a large quantity of the fertilizer in a heap on the nursery's property, as did many other nursery owners without incident. The fertilizer gave off fumes that caused the salesman to suffer lung irritation. Occasionally, the salesman's irritations became so bad that he had to take off from work and seek medical attention. After losing a few hundred dollars in wages and amassing a few hundred dollars in medical expenses, the salesman sued the nursery owner for damages. The court is likely to rule in favor of:

The nursery owner, because the selection of the fertilizer was reasonable and it was stored in a reasonable manner.

The owner of a small fleet of taxicabs had his cabs serviced by a national chain of auto service centers. One of his cabs went through a stop sign when its brakes failed without warning. The ensuing collision seriously injured the passenger. An investigation revealed that brake repairs had been made on the cab a week before, but the service center's mechanic had used the wrong parts and had made numerous errors in reassembling the brakes. If the passenger sues the cab company owner for her injuries, who should prevail?

The passenger should prevail, because the owner breached his duty to her to provide a safe vehicle in which to ride. - The passenger will recover against the owner for her injuries because the owner, a common carrier, owed her a nondelegable duty to provide a safe vehicle in which to ride. The general rule is that a principal will not be liable for tortious acts of his agent if the agent is an independent contractor. However, a major exception to this rule applies when the duty, because of public policy considerations, is nondelegable. In these cases, the principal is vicariously liable for the agent's negligence despite the principal's own exercise of due care. A common example of these types of duties is the duty of a business to keep its premises and instrumentalities safe for its customers. This includes the duty of a common carrier, such as a taxi company, to keep its vehicles in safe working order. Thus, the owner's duty to the passenger, a passenger in his cab, was nondelegable. The negligent conduct of the mechanic is deemed to be that of the owner. The negligent conduct was the actual and proximate cause of the passenger's injuries. Thus, the owner is vicariously liable to the passenger for those injuries.

Foreseeability of a defamatory statement

The publication requirement is satisfied when there is a communication to a third person who understands it. However, the communication to the third person must be made either intentionally or negligently; *if it was not reasonably foreseeable that the defamatory statement would be overheard by the sales representative, the fault requirement for the publication element is not satisfied* - elements of defamation: (i) defamatory language on the part of the defendant; (ii) the defamatory language must be "of or concerning" the plaintiff (i.e., it must identify the plaintiff to a reasonable reader, listener, or viewer); (iii) publication of the defamatory language by the defendant to a third person; and (iv) damage to the reputation of the plaintiff.

A 13-year-old boy who lived on a farm with his parents in a rural area had learned to drive the family's tractor when he was 11, and had operated it regularly since then. A state statute permitted persons without a driver's license to operate farm vehicles on public roads for short distances. One morning the boy took the tractor onto a public road to reach one of the outlying fields a few hundred yards away. As he neared the field he was distracted by a girl riding by on a bicycle, and cut in front of a milk delivery truck that was starting to pass him. The truck swerved off the road, injuring the driver. If the driver sues the boy to recover damages for his injuries, which of the following statements is most correct regarding the standard of care to be applied?

The trier of fact should take into account the boy's experience at driving a tractor when considering the applicable standard of care. - first, he is operating adult machinery, so held to an adult standard of care - second, they should consider, as with any adult, even when the reasonable person standard applies, someone with knowledge or experience superior to that of the average person is required to use that knowledge or experience. While the facts do not establish that the boy does have superior knowledge or experience, the trier of fact must evaluate that possibility

While at a party, a wife came up behind a younger woman, grabbed her by her arm, and accused her of having an affair with the wife's husband. The wife knew that her accusation was not true. Of the following facts, which would be most helpful to the younger woman in a suit against the wife for intentional infliction of emotional distress?

The wife knew that the younger woman is very religious, and her religious beliefs strongly condemn adultery. - The tort of intentional infliction of emotional distress requires: (i) an act by defendant amounting to extreme and outrageous conduct; (ii) intent on the part of the defendant to cause the plaintiff to suffer severe emotional distress, or a reckless disregard that the conduct would cause emotional distress; (iii) causation; and (iv) damages-severe emotional distress. The statement in (A) is most helpful to establish reckless disregard because it shows that the defendant knew of plaintiff's peculiar susceptibility to such an accusation. Given her strong religious beliefs, the woman may have suffered severe distress (even though the accusation was not true) because the wife gave her every reason to think that she believed it to be true.

Can a child commit an intentional tort?

Yes

A professional painter and his apprentice, in business as a partnership, were hired to paint a store. Midway through the job they ran out of paint, so the painter lent his truck to the apprentice to pick up more. On his way to pick up the paint, the apprentice stopped at a post office along the way to mail a personal letter. On pulling out of the post office parking lot, he negligently ran into a parked car, causing extensive damage. If the car owner brings a negligence action against the painter, will she prevail?

Yes, because the apprentice's stop at the post office was not a frolic. - The car owner can recover because the apprentice was acting within the scope of the partnership business when he drove negligently. Vicarious liability for the conduct of another can arise in partnership and joint venture situations. Each member of the partnership is vicariously liable for the tortious conduct of another partner committed in the scope of the partnership's affairs. As with respondeat superior situations, if the tortfeasor has gone off on a frolic of his own, he is no longer acting within the scope of the partnership and the other partners will not be liable. On the other hand, a minor deviation from the partnership activity will not take it outside of the scope of the partnership's affairs. Here, the painter and the apprentice are partners in their painting business. The apprentice's detour to a post office along the way simply to mail a letter did not take his activity outside the scope of the partnership's affairs; hence the painter is vicariously liable simply because of his status as a partner. - B) is a true statement (a bailor is not vicariously liable for the torts of his bailee). However, (B) is incorrect because it does not take into account the status of the apprentice and the painter as partners. It is because of their partnership status rather than their bailor-bailee status that the car owner might be able to recover. - painter's ownership of the truck is not enough to make him liable for the apprentice's torts. Absent a statute to the contrary, a vehicle owner is not vicariously liable for the tortious conduct of another driving his vehicle.

A bicycle manufacturer manufactured a bicycle that it sold to a retail dealer. The bicycle had a serious manufacturing defect in its brakes, but the dealer did not discover the defect before putting it on the sales floor despite a careful inspection of the bicycle. The retail dealer sold the bicycle to a bicycle messenger. Shortly thereafter, while the messenger was riding the bicycle along a busy city street, he saw a traffic light facing him turn from green to yellow. He sped up, hoping to cross the intersection before the light turned red. However, the messenger quickly realized that he could not do so and applied the brake, which failed and caused him to crash. The messenger sustained injuries. Assume that the jurisdiction follows traditional contributory negligence rules. If the messenger asserts a claim against the retail dealer based on strict liability in tort, will the messenger prevail?

Yes, because the brake failed because of a dangerous defect present when the bicycle left the factory of the manufacturer. - . In a strict liability action, the plaintiff must prove that a product was so defective that it is unreasonably dangerous. The defect causing the harm must have existed when the product left the defendant's control. The defendant must be a commercial supplier of the product in question. Brake failure on a bicycle is an unreasonably dangerous defect. If this defect existed when the bicycle left the factory of the manufacturer, then the messenger has a viable cause of action sounding in strict liability against the retail dealer, a supplier in the distributive chain. Wrong answer: Yes, because the brake failed while the messenger was riding the bicycle. (B) is wrong because it implies absolute liability, not strict liability; i.e., the retail dealer is not liable simply because the brakes failed. It must be established that the brakes were defective when placed in commerce. Wrong Answer: No, because the messenger contributed to his own injury by speeding up. (C) is wrong because, in jurisdictions retaining traditional contributory negligence rules, ordinary contributory negligence does not bar recovery in strict liability cases where the plaintiff fails to discover the defect or to take steps to guard against its existence.

Two law students ranked high in their class were competing for one opening at a prestigious law firm. During the interview with the hiring partner, one student was asked what he thought of the other's work as an editor of the law review. The student responded that there was a rumor around the school that the editor got outside help on her law review comment. Based in large part on his statement, that student was chosen over the law review editor, who later accepted a less lucrative position with another firm. If the law review editor brings a slander action against the other student and establishes the above facts, will she prevail?

Yes, because the student's statement to the hiring partner was defamatory. - Here, the student's suggestion that the law review editor received outside help on an article she authored impeaches her integrity and legal skills. The defamatory language directly related to the editor. The publication requirement is satisfied because the student made the statement to the hiring partner. To recover damages for slander, special damages must be pleaded and proved unless the spoken defamation falls within one of four categories, characterized as slander per se. Hence, a defamatory statement adversely reflecting on the plaintiff's abilities in his business, trade, or profession is actionable without pleading or proof of special damages. The student's statement adversely reflected on the law review editor's honesty and capability in her profession, and as such is slander per se.

A bookstore owner entered into an agreement with a building contractor to have a facade attached to the front of his bookstore. The contractor constructed the facade and attached it to the storefront, using plans prepared by himself and his own employees. After completing the work, the contractor was paid the contract price by the bookstore owner. A week later, a woman was walking past the front of the bookstore when the facade and a portion of the original building collapsed, striking and injuring her. The woman sued both the contractor and the bookstore owner for damages arising from her injuries. The parties stipulated that the attachment of the facade to the storefront caused the building to collapse and that the bookstore owner was not negligent in selecting or supervising the contractor. If the woman recovers against the bookstore owner, does the latter have any right of action against the contractor?

Yes, because the woman recovered from the bookstore owner on the basis of vicarious liability. - While the general rule is that a principal is not vicariously liable for the torts of an independent contractor, a broad exception applies when the duty of care is nondelegable on public policy grounds, such as a landowner's duty to make his premises safe. Indemnity involves shifting the entire loss between or among tortfeasors, in contrast to apportioning it as in contribution. Where one is vicariously liable for the torts of another, the former has a right of indemnity against the latter. Here, the bookstore owner was not directly liable to the woman in his capacity as owner of the property because he exercised due care in selecting the contractor, so the judgment against him was on the basis of vicarious liability for any negligence by the contractor, because the bookstore owner's duty to keep his building safe to passersby was nondelegable.

A worker who missed his ride home because he was working late walked across the street to a tavern to get a drink. He chatted with a patron of the tavern and discovered that he lived only a short distance from the patron. The patron offered to give the worker a ride home. Although he knew the patron was probably too drunk to drive, the worker reluctantly agreed. On the way home, the patron, driving in a dangerous manner, was involved in a collision with another car, whose driver was also driving negligently, and the worker was injured. If the worker sues the patron to recover for his injuries and the above facts are established at trial, will the worker's recovery be reduced?

Yes, because the worker knew that the patron was drunk. - The worker impliedly assumed the risk of injury when he voluntarily allowed the patron to drive him home knowing that the patron was drunk. In jurisdictions applying pure comparative negligence (which you are to assume is the rule unless otherwise stated), implied assumption of risk is usually treated as a variant of contributory negligence. If the plaintiff unreasonably assumed the risk of injury, as the facts indicate here, he will be considered contributorily negligent and his damages will be reduced.

An investor who owned several thriving shopping malls was negotiating to purchase a local mall from the company that currently owned it. A staff attorney for the state transportation department who shopped at the mall regularly learned of the negotiations and contacted the investor. The mall had deteriorated noticeably during the time the current company had owned it and the attorney believed that new ownership would revitalize the mall considerably. Although the attorney had no information to support this, she told the investor that the state was currently planning to construct a new interchange for the turnpike only three blocks from the mall. The investor went ahead with the purchase, believing that the new interchange would boost sales. In fact, no interchange was being considered by the state at that time, and nothing that the investor did after he purchased the mall could stem the decline in sales. He ended up selling the property at a substantial loss several years after the purchase. Does the investor have a cause of action against the attorney for his losses?

Yes, for intentional misrepresentation, because the attorney was aware that she did not know whether the state was planning an interchange. - To establish a prima facie case of intentional misrepresentation or fraud, plaintiff must prove (i) misrepresentation by defendant, (ii) scienter, (iii) intent to induce plaintiff's reliance on the misrepresentation, (iv) causation (actual reliance on the misrepresentation), (v) justifiable reliance on the misrepresentation, and (vi) damages. The element of scienter, which involves defendant's state of mind, requires plaintiff to show that defendant made the statement knowing it to be false or made it with reckless disregard as to its truth or falsity. Because the attorney made her statement even though she had no information that the state was planning an interchange, she acted with scienter. The other elements of intentional misrepresentation are established by the facts. Thus, the investor has a cause of action against the attorney

Establishing proximate cause in indirect cases where an intervening force combines with the defendant's conduct to cause the plaintiff's injury

he plaintiff must show that the defendant's negligence caused a foreseeable harm or caused a foreseeable reaction from a foreseeable intervening force. Intervening forces that produce a harm outside of the scope of what would normally be anticipated from the defendant's negligence are generally deemed unforeseeable and superseding. Such a superseding event will break the chain of causation and relieve the defendant of liability.

Products SL and Contributory negligence

in jurisdictions retaining traditional contributory negligence rules, ordinary contributory negligence does not bar recovery in strict liability cases where the plaintiff fails to discover the defect or to take steps to guard against its existence. - only bars recovery if P knew of it