Card Set Information

2011-07-23 21:18:05

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  1. 7 Intentional Torts
    • Torts to the Person
    • Battery, Assault, False Imprisonment, IIED

    • Torts to Property
    • Trespass to Land, Trespass to Chattels, Conversion
  2. Basic Tort Analysis
    • 1) Is there a prima facie case?
    • 2) Can D establish any affirmative defenses?
    • 3) General Considerations
  3. Prima Facie Elements For Intentional Torts (General)
    (1) Act - any "volitional movement" by the defendant

    (2) Intent - does defendant know with "substantial certainty" these consequences will result

    (3) Causation - exists if defendant's conduct was a substantial factor in bringing about the result

    Standard sentence: On these facts, intent and causation are both present.
  4. Incapacitated Defendant Fact Patterns
    (e.g. young children, mental incompetents, drunks committing intentional torts)
    Everyone is liable for their intentional torts.

    This is a favorite exam red-herring: "D cannot be held liable because he/she lacked capacity to have intent."
  5. Transferred Intent
    Rule: Intent can be transferred from (i) person to person; and (ii) tort to tort (applies to Battery, Assault, False Imprisonment, Trespass to Land, and Trespass to Chattels).
  6. Supersensitive Plaintiffs
    Rule: Plaintiffs supersensitivities are irrelevant

    The exception is where the defendant knew of the supersensitivities.

    In sum, treat the plaintiff like an average person, unless the defendant knew of the sensitivities.
  7. The Negligence Alternative in Intentional Torts
    Always the wrong answer. Defendant's use or lack of reasonable care is irrelevant in intentional torts.
  8. Battery
    (1) Harmful or offensive contact (2) with the plaintiff's person.

    • What constitutes the plaintiff's person?
    • The plaintiff's body or anything connected to the plaintiff's person. e.g. the car the plaintiff was sitting in. Construe this very liberally.
  9. Assault
    (i) Apprehension (ii) of an immediate battery

    • Apprehension
    • Apprehension must be reasonable. Remember the Supersensitive Plaintiff rule.

    Note - apprehension is not synonymous with fear or intimidation

    Note - Apparent ability creates a reasonable apprehension

    • Of an immediate battery
    • There must be immediacy

    • Words Rules
    • (i) words alone are not enough
    • (ii) words must be coupled with conduct
    • (iii) words can also undo conduct and any reasonable apprehension (see e.g. "If you weren't my best friend, I'd kill you.")

    On the MBE, when faced with a scenario which presents a valid assault and battery, battery tends to be the right answer.
  10. False Imprisonment
    (i) sufficient act of restraint (ii) in a bounded area

    • Sufficient Act of Restraint
    • Threats are enough. Inaction can be sufficient if there has been an understanding (express or implied) that the defendant would do something.

    Note - the time period can be very short

    Knowledge - plaintiff must know he was confined at the time, unless the confinement actually injures the plaintiff.

    Bounded Area - Plaintiff's freedom of movement in all directions is limited.

    An area isn't bounded if there is (a) a reasonable means of escape; and (b) plaintiff knows of it.

    Note - mere inconvenience of movement is not enough
  11. Shopkeeper's Privilege
    Exception to false imprisonment

    Shopkeepers are allowed to restrain suspected shoplifters if the shopkeeper has a (i) reasonable belief as to the theft; (ii) the detention is a conducted in a reasonable manner; and (iii) the detention is for a reasonable time.
  12. Intentional Infliction of Emotional Distress
    • Prima Facie Case:
    • (i) act by D amounting to extreme and outrageous conduct;
    • (ii) intent by D to cause the plaintiff to suffer severe emotional distress or reckless disregard that such emotional distress would result;
    • (iii) causation; and
    • (iv) damages

    Outrageous conduct must be extreme.

    • Non-outrageous conduct can be outrageous
    • 1) the conduct remains the same, but is continuous
    • 2) Type of plaintiff: young children, elderly persons, pregnant women, adult with supersensitivies the defendant knows of.
    • 3) Type of Defendant: (a) common carriers; (2) inkeepers.

    Note - common carrier/innkeeper rules only apply if the plaintiff is a passenger or guest

    Damage - physical injury is not required, but clear proof of substantial emotional distress is.

    Exam Tip: If another intentional tort, defamation or privacy won't work, consider IIED.
  13. Trespass to Land
    (i) Act of physical invasion by defendant (ii) of plaintiff's land

    The physical invasion element does not require the defendant to personally go onto the land. Throwing rocks onto or even over the land is sufficient.

    However, some physical object must enter the land. Loud noise or something else most likely gives rise to a nuissance claim.

    Plaintiff's land includes the surface, as well as the area above and below the surface to a reasonable distance.
  14. Trespass to Chattels
    Definition: defendant's act interferes with plaintiff's right of possession in the chattel

    Trespass to chattels is appropriate where there is some damage, as opposed to conversion, which is appropriate where there is a lot of damage.

    Two type of damages: physical damage and dispossession.

    Plaintiff can recover the cost of repair
  15. Conversion
    Definition: an act by the defendant interfering with plaintiff's right of possession in the chattel that is serious enough in nature or consequence to warrant that the defendant pay the full value of the chattel.

    • Acts of Conversion
    • Wrongful acquisition
    • Wrongful transfer
    • Wrongful detention
    • Substantially changing
    • Severly damaging or destroying
    • Misusing the chattel
    • Trespass to chattels is appropriate where there is some damage, as opposed to conversion, which is appropriate where there is a lot of damage.

    2 types of damages: physical damage, and dispossession.

    Defendant has to pay full fair market value of the chattel
  16. Consent Defense
    Consent is a good defense to Battery, Assault, False Imprisonment, IIED, Trespass to Land, Trespass to Chattels, Conversion, defamation and privacy. The analyses are exactly the same.

    • 1) Determine if Plaintiff had capacity to consent. If not, the consent is invalid, with the exception of consent implied by law, e.g., emergencies.
    • 2) Determine if the consent was expressly given or is implied.
    • 3) Determine if Defendant stayed within the boundaries of any given consent. If not, the privilege may be lost.

    • Express Consent:
    • 1) Will be set out explicitly in words.
    • 2) Express consent can be destroyed if it was obtained through mistake, froaud, or coercion

    • Implied Consent - Arises in 3 ways:
    • 1) custom and usage - rules of a football game
    • 2) plaintiff's conduct - participating in a football game
    • 3) implied by law, e.g., emergencies
  17. Defense Privileges
    • Analysis
    • 1) Timing Requirement - the tort defended against must be then occurring or just about to occur
    • 2) Defense Test - one need only have a reasonable belief that a tort is being committed
    • 3) Proper Amount of Force

    Hot Pursuit Doctrine - If one is in "hot pursuit" of another who has wronfully taken his/her chattel, the tort is regarded as still occurring.

    • Proper Force
    • 1) for self-defense and defense of others, one may use reasonable force (even deadly force)
    • 2) for defense of property, one may use reasonable force never to include force cause serious bodily injury
    • 3) Defense in your own home - this is not defense of propety; it is self-defense/defense of others.
  18. Necessity Defense
    • Analysis
    • 1) Only valid against a property tort, most likely trespass to land
    • 2) Public or Private necessity? If public necessity --> absolute, unlimited privilege and no liability. If the necessity is private --> limited privilege and defendant is liable for actual damage caused

    Note - necessity prevails over defense of property.
  19. Defamation
    Redresses injury to reputation

    • Prima Facie Case
    • 1) defamatory statement about the plaintiff
    • 2) publication
    • 3) damage to plaintiff's reputation

    • If the First Amendment applies (matters of public concern), then 2 additional elements:
    • 4) Falsity
    • 5) Fault

    • Notes
    • Element 1 - statment must injure the plaintiff's reputation; mere namecalling is not enough. The statement must be reasonably understood to be about the plaintiff
    • Element 2 - Communication must be to a third person. Communication may be either intentionally or negligently made, measured by whether it was reasonably foreseeable that someone would overhear the statement.
  20. Damage Requirements for Defamation
    • To analyze the damage element, determine what category of defamation is involved and apply the following rules
    • Libel - written or broadcast statement; general damages are presumed;
    • Slander - spoken statement; plaintiff must prove "special damages" (i.e. actual pecuniary damages)
    • Slander Per Se - slanders regarded as particularly devastating to reputation; damage is presumed

    • Categories of Slander Per Se:
    • 1) business or profession
    • 2) crimes involving moral turpitude
    • 3) loathsome disease (leprosy and venereal disease)
    • 4) imputing unchastity to a woman (very common)
  21. Defamation Analysis
    • (1) Statement about plaintiff
    • (2) To a third person (publication)
    • (3) Damage
    • (4) Is this statement a matter of public concern? IF No --> Done. IF Yes --> First Amendment Applies; go to (5).
    • (5) Falsity (statement must be false)
    • (6) Fault - Is the plaintiff a public or private figure?
    • IF plaintiff is a public figure, fault is shown via the NYTimes v. Sullivan "Malice" Test: intent or wreckless disregard for the statement's truth.
    • IF plaintiff is a private party, fault can be shown by showing the defamatory statement was intentional, reckless or negligent (though plaintiff should argue the highest standard it can to get punitive damages)
  22. Defenses to Defamation
    • 1) Consent
    • 2) Truth (unless it is a First Amendment case b/c falsity is an element of the prima facie case
    • 3) Absolute privileges: (i) communications b/t spouses; (ii) governmental branches (executive, legislative and judicial)
    • 4) Qualified Privileges - no definitive test - if you think we should encourage this type of communication, than grant a qualified privilege
  23. First Amendment Defamation
    Applies when the matter is of "public concern"

    • Prima Facie Case
    • 1) defamatory statement about the plaintiff
    • 2) publication
    • 3) damage to plaintiff's reputation
    • 4) Falsity - plaintiff must prove the statement was false (i.e. the burden of proof as to the truth or falsity of the statement is shifted from D to P). Note this also negates the defense of truth.
    • 5) Fault - proving defendant was at fault can be done in three ways, depending on the plaintiff: (i) intentional; (ii) reckless; and (iii) negligent.

    • Public Figure Plaintiffs - plaintiff ust show intentional or reckless defamation. This is referred to as the NY Times v. Sullivan "Malice" Test.
    • Note: if a plaintiff is a public figure, assume the matter is one of public concern (First Amendment applies).

    • Private Person Plaintiffs - plaintiff needs to only prove negligent defamation
    • Note - Most of the time, private person defamations are not of public concern and the First Amendment is inapplicable.
  24. Invasion of Privacy Torts
    • 1) Appropriation
    • 2) Intrusion into Privacy or Seclusion
    • 3) False Light
    • 4) Publication of private facts
  25. Appropriation
    Appropriation of a plaintiff's name or picture for defendant's commercial advantage

    "commercial advantage" is limited to the promotion of goods or service.
  26. Intrusion into Privacy or Seclusion
    • Prima Facie Case:
    • (i) act of prying or intruding upon the affairs or seclusion of the plaintiff by the defendant;
    • (ii) intrusion must be something that would be highly offensive to a reasonable person; and
    • (iii) the facts intruded upon must be private.

    Note: defendant doesn't need to physically invade. Any intrusion into a private place will suffice so long as it is highly offensive.
  27. False Light
    • 1) publication of facts placing plaintiff in a false light
    • 2) the false light would be something that would be highly offensive to a reasonable person under the circumstances.

    Publication = wide dissemination of statements

    Note: the NY Times v. Sullivan "Malice" test (intent or reckless) applies where a matter is in the public interest and a "public figure" is involved. On the MBE, it means that the plaintiff should lose b/c it would be too difficult to prove in multiple choice.
  28. Publication of Private Facts
    • 1) defendant's conduct must be highly offensive to a reasonable person
    • 2) publication (wide dissemination)
    • 3) common sense fact analysis: Are these facts sufficiently private

    Note, public areas, whether they are the beach or romantic restaurants, are not private.
  29. Defenses to Invasion of Privacy Torts
    • 1) Consent
    • 2) Absolute privileges: communications between spouses and statements by the governmental branches
    • 3) qualified privileges: common sense
  30. Intentional Misrepresentation
    • Prima Facie Case
    • 1) mistatement of fact; not an opinion unless rendered by someone with superior skill in the area
    • 2) Scienter = malice
    • 3) intent to induce reliance
    • 4) justifiable reliance (Note - there is no duty to investigate to show reliance is justified)
    • 5) causation
    • 6) damages
  31. Negligent Misrepresentation
    • Prima Facie Case
    • 1) mistatement of fact; not an opinion unless rendered by someone with superior skill in the area
    • 2) Negligence
    • 3) intent to induce reliance
    • 4) justifiable reliance (Note - there is no duty to investigate to show reliance is justified)
    • 5) causation
    • 6) damages

    This can only be used in a commercial setting
  32. Interference with Business Relations
    • Prima Facie Case
    • 1) valid relationship b/t the plaintiff and a third person (existing or prospective)
    • 2) defendant's knowledge of relationship
    • 3) intentional interference; negligence is not sufficient
    • 4) damage
  33. Defenses to Interference with Business Relations
    • Privileges: a question of fact
    • 1) Defendant's method of persuasion
    • 2) relationship b/t the parties

    • Relationship b/t the parties
    • If P & D are competitors, there is a "competitors" privilege to cover interferences with prospective relationships.

    sufficient relationsips b/t the defendant and the third party to justify the interference, e.g. lawyer, business advisor, etc.
  34. Prima Facie Negligence Case
    • Duty
    • Breach
    • Causation (actual and proximate)
    • Damages
  35. Duty Analysis in a Negligence Claim
    • Two elements: foreseeable plaintiff and standard of care
    • A foreseeable Plaintiff
    • Duties of care are only owed to foreseeable plaintiffs
    • The Plaintiff will almost always be foreseeable
    • Rescuers and Viable Fetuses are foreseeable as a matter of law.
    • Unforeseeable plaintiffs are defined as those persons who were not within the foreseeable zone of danger at the time of the negligent conduct
  36. Reasonable Person Standard
    What would a reasonable person do under the circumstances?

    We assume an average person and measure the reasonableness of defendant's conduct in comparison to that hypothetical person

    It doesn't matter if someone has diminished capacities, however the defendant's physical characteristics will be taken into account!
  37. The Children Standard
    Measure negligence in comparison to a child of like age, intelligence, and experience

    Exception: where the child is engaged in adult activities, the reasonable person standard applies.
  38. Professional Standard
    What would a reasonable professional in the same or similar communities have done (This is the same as the IL standard).

    Take the expertise of specialists into account, which raises their standard of care.
  39. Common Carrier and Innkeeper Standard
    • Common carriers and innkeepers are liable for even slight negligence.
    • This standard only applies where the plaintiff is a passenger or guest.
  40. Owner-Occupier Standards Analysis
    First, make sure the defendant is an owner/occupier or in "privity" with one

    Second, Determine if the injury occurred on or off the land (if the injury ever occurs off the defendant's land, then discard answers assigning status, e.g. trespassers, b/c the defendant had no obligation to that party)

    • Third, Assuming the injury is on the land, determine the plaintiff's status
    • a) If plaintiff is an undiscovered trespasser, they are owed no duty and always lose.
    • b) If the plaintiff is anything else (discovered trespasser, licensee, or invitee), determine what caused the injury (an activity? or a dangerous condition?)
    • (1) If the injury was caused by an "activity," apply an ordinary negligence/reasonable person standard. Plaintiff's status is irrelevant.
    • (2) If the injury was caused by a "dangerous condition," the standard of care will depend on the type of plaintiff.
  41. Standard of care owed by an owner/operator to an undiscovered trespasser
    No duty whatsoever
  42. Standard of Care owed by an owner/operator to a discovered trespasser
    All artificial conditions involving a risk of serious injury the o/o knows of
  43. Standard of care owed by an owner/operator to a licensee
    All dangerous conditions the o/o knows of

    (Licensees are those who are on the land for his own purpose, e.g. sales people, as well as social guests)

    • In IL, there is no distinction b/t licensees and invitees; both get an ordinary negligence standard.
    • Trespasser rules remain the same.
  44. Standard of care owed by an owner/operator to an invitee
    All dangerous conditions the o/o should know of

    This requires the o/o to make a resonable inspection of the property for the benefit of invitees.

    In IL, there is no distinction b/t licensees and invitees; both get an ordinary negligence standard. Trespasser rules remain the same.
  45. Discharge of Negligence Duties
    Duties owed to people on the property may be discharged either by warning of or making safe the dangerous condition.
  46. Duty owed regarding very obvious dangerous conditions on property
    none; if it is obviously dangerous, the plaintiff should have noticed it.
  47. Infant Trespassers and the Attractive Nuisance Doctrine
    Property owner is required to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions.

    In order to win, the child-plaintiff must show that he did not understand the risk involved.

    Note - the child does not need to show that the dangerous condition attracted him to it. This is the clear majority rule.
  48. Statutory Standards vis a vis Negligence
    • First Determine Whether the Statutory Standard Applies
    • 1) plaintiff must fall within the class of people protected by the statute; and
    • 2) statute must be designed to prevent this kind of harm

    • If the statute satisfies this test, the statutory standard should apply.
    • Note - on the majority of MBEs, the statute was not designed to prevent the harm and thus inapplicable

    • Effect of non-compliance with the statutory standard is Negligence per se
    • Negligence per se= conclusive presumption of negligent conduct. Plaintiff must still prove causation and damages.
    • Note - in IL, violation of a statute is prima facie evidence of negligent conduct

    • Exceptions for Non-compliance
    • 1) Compliance would be more dangerous
    • 2) Compliance would be impossible (e.g. blind person crossing against the light)
    • Effect of Statute Being Inapplicable - a different standard of care applies.

    • Effect of Compliance w/ the Statute - does not necessarily establish due care if the circumstances require more (e.g. driving below the speed limit in a blizzard)
  49. Negligent Infliction of Emotional Distress
    Subjecting plaintiff to the threat of physical impact or severe emotional distress likely to cause physical symptoms.

    Requires negligence in creating a risk of physical injury to plaintiff.

    • 1) Plaintiff must suffer physical injury (shock is enough). In IL, plaintiff must establish substantial emotional distress
    • 2) Plaintiff was within the "target zone" of defendant's negligent conduct.

    • 3) But Plaintiff can recover when she was outside the "target zone" where she is (i) a close relative of the victim and (ii) she perceived the injury.
    • This is not the rule in IL. IL says that if she isn't in the target zone, then no NIED recovery. IL does not care about the relationship with the victim.
  50. Affirmative Duty to Act
    • No affirmative duty to act
    • Exceptions:
    • 1) Special Relationship b/t the parties, e.g. family members, employer/employee, common carriers/inkeepers
    • 2) Duty to control third persons. 2 elements: (i) right and ability to control; (ii) know or should know it's required
    • 3) Assumption of Duty to Act by Acting
    • 4) Plaintiff's Peril Due to Defendant's Negligence
  51. How do you determine whether there has been a breach of care?
    compare defendant's actions to the standard of care
  52. Res Ipsa Loquitur
    • Res Ipsa applies to situations in which the very occurence of ann event establishes a breach of duty.
    • Probability Inference Test:
    • 1) Inference of Negligence - this usually doesn't happen unless someone was negligent.
    • 2) Negligence Attributable to Defendant - most often established by showing that the instrumentality causing the injury was within Defendant's exclusive control
    • 3) Plaintiff was not contributorily negligent

    If Res Ipsa Loquitur applies, plaintiff doesn't necessarily win. Plaintiff will survive a motion for directed verdict and will go to the jury. But that's it. Jury can accept or reject the inference.
  53. Causation Requirement for Negligence Claims
    • Two Part Analysis
    • 1) Actual Causation (always first! If there's no actual causation, the primar facie case fails!)
    • 2) Proximate Causation

    • Actual Causation - three tests
    • 1) But for causation. If no --> (2)?
    • 2) "Substantial Factor" test (two equally negligent defendants, e.g. race cars). If no --> (3)
    • 3) "Alternative Causes/Summers v. Tice" test (two or more negligent defendants, but uncertainty as to which one caused injury). Burden shifts to Ds to show the other caused it. If they fail, they can both be liable.

    • Proximate Causation: was the result foreseeable
    • Direct Cause Cases - uninterrupted chain of events b/t negligent act and injury. 90% of the time, there is proximate causation.
    • Indirect Cause Cases - intervening force which combines with the prior act to cause injury. If the intervening force was an unforeseeable intentional tort or crime, defendant will not be liable, even if the result was foreseeable. If the intervening force was a harmful response or reaction from a dependent intervening force or created a forseeable risk that an independent intervening force would harm plaintiff.
  54. Damages Requirement for Negligence
    You take the damages as they come, whether it's a Mercedes or a Chevy.

    Duty to Mitigate

    Collateral Source Rule: Damages not reduced b/c of payments from other sources such as insurance.
  55. Contributory Negligence
    Defense to negligence; if Plaintiff was negligent even 1% he will recover nothing

    • Note - a fact pattern can present both contributory negligence and assumption of risk defenses where the plaintiff (i) unreasonably and (ii) voluntarily (iii) takes on a known risk. Right about both in the
    • essays.
  56. Implied Assumption of the Risk
    Plaintiff (i) knew of the risk and (ii) voluntarily proceeded in the face of it.

    Defense to Negligence; valid defense in a contrib. neg. state, but not in comp. neg. state (IL)

    Note - a fact pattern can present both contributory negligence and assumption of risk defenses where the plaintiff (i) unreasonably and (ii) voluntarily (iii) takes on a known risk. Right about both in the essays.

    Exceptions: (1) No viable alternative; (2) Emergency (plaintiff's or another's)
  57. Contributory Negligence v. Comparitive Negligence
    Contrib. Neg. - any contributory negligence completely bars recovery.

    Comp. Neg. - contributory negligence reduces recovery.

    • Partial v. Pure Comp. Neg.
    • "Partial" = no recovery if one was more negligent than the other party. IL is a partial Comp. Neg. State
    • "pure" = one can recover even if he is the more negligent party

    Note - assume, unless epxressly told otherwise, a "pure" comp. neg. state.
  58. Last Clear Chance Doctrine
    Contrib. neg. plaintiff sucesfully contends after his negligence, defendant still had the last clear chance to avoid the accident, and is thus contributory negligence should be disregarded as a defense.

    This is a valid defense in a contrib. neg. state, but not in comp. neg. states, like IL.

    Remember: Last Clear Chance Doctrine is not a defense! It is a plaintiff's argument to get around a defense of contrib. neg.
  59. Reckless Conduct by the Defendant
    In Contrib. neg., this is not a good defense, unless the plaintiff is minimally negligent, in which case, the plaintiff wins it all.

    In contrib. neg., defendant's negligence offsets the amount of the award.
  60. Strict Liability - Prima Facie Case
    • 1) Duty
    • 2) Breach - demonstrated by violation of an absolute duty to make safe.
    • 3) Causation
    • 4) Damage
  61. Defenses to Strict Liability
    • Contrib. Neg. State
    • -Knowing Contrib. Neg - complete defense; plaintiff loses
    • -Unknowing contrib. neg. - no defense; plaintiff wins

    • Comp. Neg. State
    • -knowing and unknowing contrib. neg. can both be asserted against recovery; plaintiff can recover whatever is available under the comp. neg. rules of the state.
    • -In IL, unkowing contrib. is NOT a defense to strict liability
  62. Strict Liability and Animals
    Liability for domestic pets only at the second instance of injury

    Strict liability for animals with inherent dangerous propensities from the outset. The result doesn't change if the animal was "tamed."
  63. Product Liability Analysis
    • Applies to any commercial supplier so long as two requirements are met:
    • 1) Defect causing injury must have existed at the time the product left that defendant's control. However, there is an inference that this requirement is satisfied if since the time it left the defendant's control the product was moved through normal channels of distribution.
    • 2) Plaintiff needs a workable theory: negligence or strict liability (Tip: look to the call of the question to determine which standard to apply).
  64. Negligence Theory of Product Liability
    • Prima Facie Case:
    • 1) legal duty to that particular plaintiff
    • 2) breach of that duty
    • 3) actual and proximate cause; and
    • 4) damages
    • Negligent Conduct Possibilities: Defendant failed to exercise reasonable care
    • -negligent design
    • -negligent manufacture
    • -negligent warnings
    • -negligent inspections
    • -Res Ipsa Loquitur

    Potential Plaintiffs - anyone in the "foreseeable zone of risk." No privity with the supplier is required.

    • Potential Defendants
    • Manufacturers: almost always
    • Retailers/Wholesalers: almost never

    Note - one who labels products as their own or who assembles them from component parts made by others can be liable for negligence, though they're not personally negligent.

    Intermediary's negligence is not a superseding cause and D's negligence which created the defect will be liable in addition to the intemediary.

    Standard negligence defenses apply.
  65. Strict Liability for Product Liability
    • Prima Facie Case:
    • 1) strict duty by a commercial supplier
    • 2) production or sale of a defective product
    • 3) actual and proximate causation
    • 4) damages

    • Plaintiffs: anyone in the "foreseeable zone of risk," including bystanders; no privity is required.
    • Defendants: Everyone

    Note on actual causation: defect has to have existed when the product left the defendant's control.

    Reasonably foreseeable misuses of the product will not preclude a product liability claim.

    Contributory negligence is not a defense unless the jurisdiction applies comparitive negligence.
  66. Three Exam Favorites Re: Product Liability
    • Warnings: Adequate warnings will generally insulate from liability
    • Feasible Alternatives Approach: If one could have cured the defect for a minor amount of money relative to the risk involved, he should have done so. Warning will not save them.
    • Product Use Incidental to Performance of Services: No strict liability, but plaintiff can still recover via fault.
  67. Nuisance
    • Definitions
    • Private Nuisance - substantial and unreasonable interference with one's use and enjoyment of land
    • Public Nuisance - unreasonable interference with health, safety or property rights of the community

    • Plaintiffs
    • Private - plaintiff must have possession/ownership or the right to immediate possession
    • Public - private persons can recover only if he has suffered unique damage not suffered by the public

    Standard: Conduct must be objectionable to the average person

    • Note - nuisance involves a balancing of competing interests
    • Note - plaintiff can "come to" the nuisance and still recover.
  68. General Consideration: Vicarious Liability/Respondeat Superior
    Employers are liable for employees' torts committed within the scope of employment (none for general independent contractors)

    Intentional Torts: never within the scope of employment unless (i) force is authorized; (ii) friction is generated by this type of employment; (iii) employee is trying to further employer's business. (Tip: right answers typically focus on exceptions).

    No vicarious liability for torts of other drivers unless: household member with permission to use the car or someone else with permission. In IL, this is no exception - no vicarious liability for other drivers. Note - On the MBE, only use these exceptions if explicitly allowed by the prompt.

    Parents are not vicariously liable for torts of their children except intentional torts up to a limited dollar amount ($20k in IL)
  69. Joint & Several Liability
    Each defendant will be potentially jointly liable for the entire judgment
  70. Contribution
    Where defendants are roughly equally responsible, they will ultimately share the judgment amount equally

    defendant from whom contribution is sought must also be liable; not applicable to intentional torts
  71. Indemnification
    Defendants can get everything back from other defendants

    • Grounds for indemnification(i) the other defendant is much more responsible.
    • (ii) vicarious liability
    • (iii) indemnification in product cases
  72. Comparitive Contribution
    Defendants will ultimately split up judgment according to "relative fault"

    This is the majority rule, which applies in IL

    Tip: comparitive contribution effectively eliminates traditional contribution and the first ground for indemnification
  73. Survival and Wrongful Death
    Derivative recoveries.

    Plaintiff will be in no better position than decedent would have stood had he lived.
  74. Tort Immunities
    • Intra-family
    • Charitable
    • Governmental
  75. Governmental Immunity
    Key issue is governmental v. proprietary functions

    Rule: immunity is available for governmental functions, but not proprietary functions.

    To determine whether a function is proprietary - would a private person normally perform this function? E.g. city parking lot is proprietary b/c private parties run parking lots.