Intentional
What is the duty, and intent for Battery?
You have a duty not to harm and you must have dual intent. That being that you intend the action, and the harm (although not necessarily the extent of the harm).
What is the different between Res Ispa Loquitur and Negligence Per Se?
RIL shifts the burden of proof to the defendant.
Negligence PS the burden is still on the plaintiff, but the statue layouts the level of care a person needs to have.
What is products liability?
It is a loose group of causes of action: negligence, breach of express or implied warranties, failure to warn and strict liability
What types off offense fall under strict liability?
Breach of warranty (products liability), vicarious liability are some what strict liability, and lastly and most importantly abnormally dangerous activities
What are the types of people on land and what duty does the land owner owe to them? (hint there are 3)
Trespasser: person who enters the land without the land owners consent, a land owner owes no duty expect to refrain from injuring them by willful and wonton misconduct. Once a landowner is aware of a trespasser than must use reasonable care to avoid injuring them
Licensee: a person who is privileged to enter land of another by the landowners consent. Duty to warn of any hidden dangers that the owner has reason to know of.
Invitee: a person is invited for a business purpose. The landowner must warn the person of dangers and make the land safe for them.
What are the four elements of intentional inflict of emotional distress
1). That the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was likely to result in his conduct
2). That the conduct was extremely outrageous and was beyond all possible bounds of decency
3). That the actions of the defendant were the cause of the plaintiff's distress
4). That the emotional distress sustained by the plaintiff was severe and of a nature that no reasonable man could be expected to endure it
Apply the hand formula to this fact pattern.
Heatmeister owned and ran an heating business. One of the parts he would install to houses had a defect. It would break if it was in conditions below 10 degrees. This would happen in 10% of the houses it was installed in. Every time it would break it would cost $500. The cost it upgrade it a different part would be $60. Did Heatmeister owe a duty?
B < PL $60>$50
P = 10%
L = $500
B = $60
There is no duty
Pre McPherson what were the three exceptions to privity that we learned in class?
1). Public duty, if you contract involves some public duty, a violation of that duty means that members of the public can sue you.
2). Extremely dangerous items, mislabeling poison for example would mean you are liable not just to the store you sold it to but also the person who consumed it
3). Fraudulent misrepresentation: when a consumer was hurt by a product that was fraudulent sold.
What are the elements of respondeat superior?
a master is liable for his servant when the master servant relationship exists and if the tortious act of the servant occurred within the scope of the employment. which can be shown if
a). if is the kind of act he is employed to perform
b). it occurs substantially within the time and space of employment
c). it is at least in part to serve the master
Carter v. Reynolds
What are Pro Tort Reform arguments and what are Anti Tort Reform Arguments?
Pro -> torts have become increasingly frivolous, people are using baseless claims to win money. With increased ligations leads to a lack of innovation and a decreasing quality of health care. Increased use of punitive damages will lead to over deference.
Anti -> The concerns of frivolous lawsuits are over dramatic and not accurate. Many people are injured but few ever sue. Torts allow juries to find damages based on each case. Damages are how both lawyers and clients get paid. Deterrence is necessary to deter poor behavior and misconduct.
Scrooge sold cars, and was going to sell one to Little Timmy (who despite his name is an adult). Scrooge told Timmy, that the car was brand new. It had 32 miles per gallon. Timmy looked in the car, and Scrooge said oh my this car looks good for you, you need this car it is your destiny. If little Timmy buys the car and it turns out the he can't reach the emergency break because his arms were to short, is this a tort?
No, although there might be fraud because Scrooge lied when he said the car looks good for you, and encourage Little Timmy to buy it; this would be fraud inducement and not fraud in fact. Neel v. Neel
What is the Hornbook law?
Similar to the hand formula, but less mathmatical
Moose bought a truck. He loved this truck so much but the tires were lowkey super lame. He decided to trick it up, and change the gears to make the truck taller. More like a monster truck than a normal one. He was driving this truck, when the truck breaks stoped working. He was injured when the truck wouldn't stop. What could Mooses arguments be? What could the defenses be? Any responce to the defense.
Moose could argue that the issue with the breaks was a manufacture defect. There was implied warranty of merchantability, that the breaks would work. Because they didn't as long as Moose can show that it was due to a defect, the company would be strictly liable.
Defenses: Substantial modification of the product, the manufacture could argue that it was the it was the modification that lead to the breaks not working and therefore they are not liable.
Response: tricking out a truck is a foreseeable modification. Because it was a foreseeable as such they can still be held liable.
George and Harris LLC hosted a Christmas party. At the party the party alcohol was served. Bob worked at the Company and he brought his boyfriend James. James drank a lot of alcohol and decided to drive home. While driving home he hit another car and injured the driver. Is George and Harris LLC liable? What if Bob was the one to drive home?
Under enterprise liability theory, they would not be liable because James in not an employee. They would also not be liable under the dram shop act because they are not a seller of alcohol. Under social hosts it is based on which jurisdiction the accident happens. Some jurisdictions do apply liability on social hosts who allow their guests to drive home. Iowa is not one of these states.
However if Bob was the one to drive home, than this would fall under enterprise liability theory. Which is when the the employees conduct is not so usual or starling that it would see unfair to include and is foreseeable.
What are the different types of immunities? (hint there are 8)
Charitable immunities (not really a thing anymore)
Spousal immunities (not really a thing anymore)
Parental immunities (only for negligence)
Sovereign immunity (altered today into different forms)
Discretionary function immunity (allows government officials immunity for non day to day decisions)
Public Duty Doctrine (we owe a duty to everyone so we owe one to no one)
Absolute Immunity (you just cant sue, government officials for official acts)
Qualified immunity (lower government officials cannot be sued unless they were clearly acting in an unlawful manor)
The Granch owned a wonderful cliff side house. During the month of December, the Who's his neighbor's down the way, sang all day and all night. One Day Cindy Doo visited and hugged the Granch. The Granch was allergic to Cindy's fur coat and broke out into hives.
IF the Granch was to sue the Who's and Cindy Doo? What are the who's possible defenses?
Potential Torts: Private Nuisance, because of the sound all day and all night, or it could be argued public nuisance because it impacted the whole community and surrounding areas. Battery, the hug could be considered offensive contact, and their was harm. Maybe intentional inflict of emotional distress -> due to the constant signing
Potential Defenses: Nuisance -> it did not actual diminish the value of the property because it was celebration that everyone in the community loved. Battery -> Implied consent, and hug usually has to be two ways. Furthermore dual intent, there was no intent to cause the harm (although this is not always the case for offensive contact), additional a hug would not offend the dignity of a reasonable person. IIED -> this was a type of harm that a person of reasonable firmness would be able to endure because its common to hear during the month of the December.
Linda went to the local burger restaurant. With the intent of dashing and dining. Before she could sit down she slipped on pop.
If Linda sued, what could her argument be?
Linda -> because she was going to dine, she was a invitee, which meant the landowner was required to inspect the land and make the premise safe. If there was reasonable time to discover the spilt they should have cleaned it up.
Defenses -> Linda was not an invitee because she was going to dash and dine. Therefore all the restaurant was required to do is refrain from hurting Linda, and use reasonable care to avoid injuring Linda.
The Traveller's store sold an drone. Teddy bought this drone, in the instruction handbook it said, this product is sold as is with all faults. Teddy was using the drone when it lit on fire, and Teddy was burned. Can Teddy recover? Any defenses?
What if the product was used?
Teddy can recover, although in contracts a company is allowed to waive the implied warranty of merchantability, under products liability this is not allowed (Henningsen v. Bloomfield).
Potential defenses: Based on the fact patterns there is not a potential defense however the company could argue on the elements. That being that the product did not have a default. If the company could prove it lit on fire, because of an intervening cause such as an act of god that would work.
Daspit loved wolves so much, and when an injured wolf needed someone to take care of it, he volunteered. Daspit lived in the city. The wolf was kept in a large enclosure with a 9ft tall fence. However the wolf got out and bit a normal dog, causing sever injuries.
Apply the six factor test of strict liability?
a). the risk of harm was great (probability), if the wild wolf got out it could easily hurt someone
b). the harm the wolf did do was great
c). the harm could not have been prevented by due care (debatable, but the wolf escaped from a 9ft tall fence).
d). having a wolf is not common
e). having a wolf is not appropriate in the city
f). there was not great value to society to have the wolf
What is pecuniary, what is non pecuniary, what is exemplary and what limits all of them?
Pecuniary and non pecuniary are damages that fall under compensatory damages. Pecuniary = special (things you get a bill for), and non pecuniary = general (pain and suffering). Exemplary damages are just punitive.
Dasher and Dancer were both boxers. They had a fight and Dasher lost severely. Dancer took a picture, of Dasher after the fight and posted it with an automatic filter online, making him look worse. Dasher had to have surgery after the fight due to a broken rib, while performing the surgery, the doctor removed his appendix. What torts could Dasher sue for? Defenses?
Dancer -> Defamation, posting a photo with a filter that altered Dashers state. If the posting was willing, and caused people to make fun of Dasher, he might have a case. Further more he could have a case of IIED or NIED, if Dasher suffered the same as a person of reasonable firmness would.
Dr. -> Medical Battery, the doctor did not receive consent before he removed appendix.
Defenses -> Dancer: the photo only had a filter, so it was not necessarily false, additionally he did not intentional post the photo with the filter, it was automatic. IIED, this was not outrageous conduct and is quite common for social media and boxing. Dr.: if the appendix was about to explode, it was an emergency situation and therefore no consent is needed.
Loki drove his brand new car to the local gas station. It was very cold outside, to the point were liquid froze within 3 minutes. Loki got to the pump got out of his car, and slipped on ice. It turns out the ice was either formed from Brenda emptying out her red bull can on the ground at that pump. Or from the employee's pouring the window cleaning fluid out on the ground. Who can Loki sue? Any defense? Could punitive damages be awarded?
Loki could sue both under joint and serval liability. Because both defendants caused the ice to form neither one can escape liability, just because Loki could not prove which one did it.
Defenses: Comparative negligence, Loki was the one who slipped on ice during the winter. It could be argued that he is somewhat at fault for his own injures for failing to take caution. (This is not a good argument). A better argument would be assumption of risk, when you go any where in winter you assume the risk that there will be ice. Typically when you are driving you can see the ice or at least feel it. When he pulled up in the car, and argument could be made he should have been aware of the risk, and assumed it when he left his car.
Punitive damages: not likely for Brenda, although the modern day courts in some jurisdiction have widen the scope of punitive damages to gross negligence and recklessness, its not likely she has done enough to show actual malice. Its more likely that the gas station will because they were reckless in disposing of the window cleaning fluid. Although more would have to be shown.
The Jones owned a pet bunny rabbit. The Jones had recently bought brush. This brush had a defect which caused the bristles of the brush to fall out easily. If the bunny rabbit, ate the bristles and had to have emergency surgery could the company be held liable?
Maybe, this question is less about getting the right answer and more about the thought process.
Restatement (Second) of Torts Rule 402 states one who sells any product in defected condition unreasonably dangerous to the user or consumer or to his property is subject to liability for the physical harm thereby caused.
A bunny is a part of the property, however it would be difficult for the jury to hold that bristles falling off a brush is unreasonably dangerous to the user
Zeke and Tina both owned a bull. This bull was bigger than all the others and had a mean anger streak. It broke down a fence and hurt Fronz the next door neighbor. If the judge said Zeke and Tina are liable and utilized the principle of distributive losses, would that be right or wrong? Why?
This would be wrong. Because the bull was abnormally dangerous for its bread it would fall under strict liability. (Rhodes v. MacHugh).
This means the principle it would fall under is allocative, which limits that to lose actives that ordinary care will not be enough.
Distributive losses are loss we are distribute the cost of, for example negligence because we are all human and make mistakes. (Indiana Habor Belt RailRoad Co. v. American Cyanmid Co.)
What are the 8 elements of misrepresentation? (hint kind of similar to contracts) (hint they are listed in Dier v. Peters)
1). the defendant made a representation to the plaintiff
2). the representation was false
3). the representation was material
4). the defendant knew the representation was false
5). the defendant intended to deceive the plaintiff
6). the plaintiff acted in reliance on the truth of the representation
7). the representation was a proximate cause of the plaintiffs damages
8). the amount of damages