First-Year Law Students' Examination (FYLSX / Baby Bar) Torts Flashcards

24 sample cards from the Torts deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. Compare contributory negligence, pure comparative negligence, and modified comparative negligence.

   Contributory negligence: any plaintiff fault completely bars recovery (with last-clear-chance exception). Pure comparative: recovery reduced by plaintiff's % of fault (recovers even at 99%). Modified comparative: plaintiff barred if her fault exceeds 50% (or reaches 50%).

2. Explain assumption of the risk and its two elements.

   A plaintiff who (1) knew of a risk and (2) voluntarily encountered it may be barred (in contributory negligence jurisdictions). It can be express (agreement) or implied. Many comparative-fault states have merged implied assumption into the comparative analysis.

3. What is the 'last clear chance' doctrine?

   A plaintiff's rebuttal to contributory negligence: even if the plaintiff was negligent, the defendant who had the last clear chance to avoid the harm but failed to do so is liable. It is the plaintiff's 'rebuttal' to the contributory negligence defense.

4. State the three categories of activities that give rise to strict liability.

   (1) Abnormally dangerous activities, (2) keeping of dangerous animals, and (3) products liability (strict products). In each, fault need not be proven for the relevant element.

5. What two factors define an abnormally dangerous activity for strict liability?

   (1) The activity creates a foreseeable risk of serious harm even when reasonable care is exercised, and (2) the activity is not a matter of common usage in the community. Examples: blasting, toxic chemicals, explosives.

6. Compare strict liability for domestic animals versus wild animals.

   Domestic animals: no strict liability unless the owner knows of the animal's dangerous propensities abnormal for its category (one-bite rule). Wild animals: strict liability for harm resulting from dangerous propensities characteristic of the species, even if domesticated.

7. Who can be a defendant in a strict products liability claim, and what is the key requirement about their business?

   Any commercial supplier in the chain of distribution (manufacturer, wholesaler, retailer). The defendant must be a merchant routinely dealing in goods of that kind; casual sellers and service providers are excluded. Privity is not required.

8. State the elements of a strict products liability claim.

   (1) Defendant is a commercial supplier, (2) the product was defective when it left the defendant's control, (3) the product was not substantially altered, (4) the plaintiff made a foreseeable use, and (5) the defect caused the plaintiff's injury.

9. Identify and define the three types of product defects.

   (1) Manufacturing defect: product differs from the intended design and is more dangerous than expected (consumer-expectation test). (2) Design defect: dangerous design that could be made safer (risk-utility test with feasible alternative design). (3) Warning defect: inadequate warnings or instructions about non-obvious risks.

10. What test is generally used to prove a design defect?

    The risk-utility test: the plaintiff must usually show a reasonable, feasible alternative design existed whose benefits outweighed its costs/dangers. Some jurisdictions also allow the consumer-expectation test.

11. List the theories under which a plaintiff can sue for a defective product.

    (1) Intent (battery), (2) negligence, (3) strict products liability, (4) implied warranties of merchantability and fitness for a particular purpose, and (5) express warranty and misrepresentation.

12. How does negligence-based products liability differ from strict products liability?

    Negligence requires proving the defendant breached a duty of reasonable care (fault), and intermediaries who don't inspect generally aren't liable. Strict products liability imposes liability for any defect regardless of the supplier's care, but the product must still be defective.

13. What defenses apply in strict and products liability actions in a comparative-fault jurisdiction?

    Comparative negligence/fault principles apply to reduce or bar recovery. Assumption of the risk and product misuse (unforeseeable misuse) are also defenses. In contributory negligence states, ordinary contributory negligence is NOT a defense to strict liability, but knowing assumption of the risk is.

14. State the common-law elements of defamation.

    (1) A defamatory statement of or concerning the plaintiff, (2) publication to a third party, (3) damage to the plaintiff's reputation, and (for matters of public concern) (4) fault and (5) falsity.

15. Distinguish libel from slander, and identify the slander per se categories.

    Libel is written/permanent defamation (general damages presumed). Slander is spoken (special/pecuniary damages required) UNLESS slander per se: statements about (1) business/profession, (2) a loathsome disease, (3) crime of moral turpitude, or (4) unchastity of a woman—for which damages are presumed.

16. What additional constitutional elements apply to defamation involving public figures vs. private figures on matters of public concern?

    Public official/figure: must prove falsity plus actual malice (knowledge of falsity or reckless disregard for truth) — New York Times v. Sullivan. Private figure on a matter of public concern: must prove falsity plus at least negligence (actual malice required for presumed/punitive damages).

17. Name and define the four invasion of privacy torts.

    (1) Appropriation: unauthorized use of plaintiff's name/likeness for commercial advantage. (2) Intrusion upon seclusion: intrusion into private affairs objectionable to a reasonable person. (3) False light: widespread publication of facts placing plaintiff in a false light, objectionable to a reasonable person. (4) Public disclosure of private facts: public disclosure of private info objectionable to a reasonable person.

18. State the elements of intentional misrepresentation (fraud/deceit).

    (1) Misrepresentation of a material fact, (2) scienter (knowledge of falsity or reckless disregard), (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) damages.

19. How does negligent misrepresentation differ from intentional misrepresentation?

    Negligent misrepresentation requires a misrepresentation made without reasonable care (negligence) rather than scienter, and is generally confined to commercial/business settings where the defendant owes a duty to a limited class of foreseeable plaintiffs (justifiable reliance and damages still required).

20. State the elements of tortious interference with contract/business relations.

    (1) A valid contract or expectancy between plaintiff and a third party, (2) defendant's knowledge of it, (3) intentional interference inducing breach or termination, and (4) damages. Defendant may raise a privilege/justification defense (e.g., fair competition for prospective relations).

21. Distinguish private nuisance from public nuisance.

    Private nuisance: a substantial and unreasonable interference with another's use and enjoyment of their land (plaintiff needs a property interest). Public nuisance: an unreasonable interference with the health, safety, or rights of the community; a private party may recover only by showing damage different in kind from the general public.

22. State the rule for vicarious liability (respondeat superior) and its scope limits.

    An employer is liable for torts committed by employees acting within the scope of employment. Intentional torts are usually outside the scope unless force is inherent to the job, the employee serves the employer, or friction is generated by the employment. 'Frolic' (a major deviation) is outside scope; a minor 'detour' is within.

23. When is a principal vicariously liable for an independent contractor, and what is the rule for hirers generally?

    Generally NOT liable for independent contractors, except for (1) inherently dangerous activities and (2) non-delegable duties (e.g., duty to keep premises safe for invitees). Compare: the car-owner/parent/tavern rules and joint-enterprise liability also impose vicarious liability in limited circumstances.

24. Explain joint and several liability and the difference between contribution and indemnity in apportioning damages.

    Under joint and several liability each tortfeasor is liable for the entire judgment when the harm is indivisible. Contribution lets a defendant who paid more than her share recover the excess from co-tortfeasors (by comparative share or equal shares). Indemnity shifts the entire loss to another (e.g., from a retailer up to the manufacturer in products cases, or via vicarious liability).

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