How to Ace FYLSE/Torts Outline

Invitee

A person who comes onto the land for the economic benefit of the landowner, or as part of the general public is invited onto the premises is an invitee.

Negligence per se

Negligence per se is a doctrine that allows the court to substitute the standard of care with the words of a statute.

Homeowner kept a handgun on his bedside table in order to protect himself against intruders. A statute provides that "all firearms must be stored in a secure container that is fully enclosed and locked." Burglar subsequently used the hand in an attack on Patron...

—J10Q1

Strict Liability

To establish a prima facie case of strict liability, P must prove: 1) the existence of an absolute duty on the part of D to make safe; 2) breach of that duty; 3) causation, 4) damages.

Products Liability

When a consumer is injured by a product, there are five theories that consumer can sue under under products liability.

Strict Products Liability

Proper plaintiff - user or consumer

Traditionally, the person injured was required to be the purchaser of the product, or at least a person in privity with the purchaser. Modernly, a proper plaintiff is any user, consumer, or foreseeable bystander who could be injured by the product.

Oscar bought a Roadstar. On his first day of ownership, he decided to take his 10-year-old daughter, Chole, to a local ice cream shop. On the way home, Oscar accidentally rain the Roadster into a bridge abutment. The airbags inflated as designed and struck Chole in the head, causing serious injury.

—F06Q1

Defective Condition

Manufacturing Defect

A manufacturing defect is present when a few of the products leave the plant in a condition different that the rest.

Design Defect

A design defect can occur when all the products leave the plant in the same condition and there is a defect in the design of the product.

Consumer Expectation Test

This test is met if the product leaves the plant in a condition more dangerous than the average consumer would reasonably expect.

Feasible Alternative Test

This test compares the design of the product with other reasonable alternative available in the market.

Autos, Inc. manufactures a two-seater convertible, the Roadster. The Roadster has anairbag for each seat. Autos, Inc. was aware that airbags can be dangerous to children, soit considered installing either of two existing technologies: (1) a safety switch operated bya key that would allow the passenger airbag to be turned off manually, or (2) a sensorunder the passenger seat that would turn off the airbag upon detection of a child’spresence. Both technologies had drawbacks. The sensor technology was relatively newand untested, and the safety switch technology had the risk that people might forget to turnthe airbag back on when an adult was in the seat. The safety switch would have increasedthe price per car by $5, and the sensor would have increased the price per car by $900.Research showed that most riders were adults and that the airbags rarely hurt children whowere properly belted into the seat. No federal or state regulation required either a safetyswitch or a sensor. Autos, Inc. chose to install neither.

—F06Q1

Failure to Warn

A product is defective if the defendant, knowing of a defect, fails to adequately warn the consumer. An adequate warning is one that tells the consumer of the risk, how it occurs, how to prevent such risk, and any mitigating factors to avoid further injury.

Nuisance

Private Nuisance

Private nuisance requires substantial unreasonable interference with another private individual's use or enjoyment of the property that she actually possess or to which she has a right of immediate possession.

Here, Bret's billboards obstructed the views and sunlight to the property of Restview Inn. As a popular vacation spot known for the unobstructed view of the natural countryside, the scenic views are the part of the use of enjoyment of the Restview Inn and the Bret's billboards unreasonably interfere with it. Also, the right One billboard blocks the view and cuts off the sunlight to one side of the Inn's dining room is unreasonable.

Defamation

Common Law defamation requires a showing of: (1) a defamatory statement; (2) of or concerning plaintiff; (3) publication; (4) damages.

Defamatory Statement

A defamatory statement is one that injures a plaintiff’s reputation and tends to subject plaintiff to hatred, contempt and ridicule or financial injury.

Of or Concerning Plaintiff

The plaintiff must establish that a reasonable recipient of the information would understand that the statement referred to plaintiff.

Publication

Publication requires that the statement be communicated to a third party who understands the defamatory meaning and its application to plaintiff.

Damages

The type of damages the plaintiff must prove depends on the type of defamation.

Libel

Libel is defamation that is written. When libel occurs, general damages are presumed. However, the plaintiff may offer actual evidence of damages to increase his or her award.

Libel Per Se and Libel Per Quod

In a minority of jurisdictions, courts distinguish between libel per se (libel that is defamatory on its face) and libel per quod (not defamatory on its face).

Slander

Slander is defamation that is spoken. In cases of slander, plaintiff must prove damages unless the defamation is slander per se.

Slander Per Se

Slander per se exists when the defamatory statement: (1) adversely reflects one’s conduct in a business or profession; (2) accuses one of having a loathsome disease; (3) accuses one of a guilt involving a crime of moral turpitude; or (4) suggests a woman is unchaste.

Constitutional Defamation

When the defamation involves a matter of public concern, the plaintiff must prove two additional elements: (1) falsity; and (2) fault.

Malicious Prosecution

1. filling of a claim against a party for a purpose other than seeking justice
2. the claim being dismissed in the D's favor
3. there was not a sufficient probable cause to bring the claim
4. damages

Abuse of Process

1. The claim was brought to further an improper purpose
2. that there was a sufficient act or threat used to accomplish that purpose
3. damages

Joint and Several Liability

A plaintiff can recover the full amount of any damages proximately caused by the combined tortious acts of two or more defendants, whether acting independently or in concert, that result in a single indivisible harm.

Invasion of Privacy

Paula is the president and Stan is the secretary of a labor union that was involved in a bitter and highly-publicized labor dispute with City and Mayor. An unknown person surreptitiously recorded a conversation between Paula and Stan, which took place in the corner booth of a coffee shop during a break in the contract negotiations with City. During the conversation, Paula whispered to Stan, “Mayor is a crook who voted against allowing us to build our new union headquarters because we wouldn’t pay him off.”

The unknown person anonymously sent the recorded conversation to KXYZ radio station in City. Knowing that the conversation had been surreptitiously recorded, KXYZ broadcast the conversation immediately after it received the tape.

—J03Q4