Master of Laws (LLM) Torts and Civil Liability Flashcards

24 sample cards from the Torts and Civil Liability deck

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

1. What is contributory negligence and its harsh effect?

   A plaintiff's failure to exercise reasonable care for her own safety. In the minority of jurisdictions that follow it, any contributory negligence is a complete bar to recovery, subject to the 'last clear chance' doctrine.

2. What is the last clear chance doctrine?

   A plaintiff's rebuttal to contributory negligence: the defendant who had the last clear opportunity to avoid the accident, but failed to do so, is liable despite the plaintiff's contributory negligence.

3. What is the difference between pure and modified comparative negligence?

   Pure comparative: the plaintiff recovers damages reduced by her own percentage of fault, no matter how high. Modified comparative: the plaintiff recovers reduced damages only if her fault is below 50% (or not greater than 50%); otherwise she is barred.

4. What is the assumption of risk defense and its two forms?

   The plaintiff knowingly and voluntarily encountered a known risk. Express (by agreement/waiver) and implied (by conduct). In many comparative-fault jurisdictions, implied assumption of risk is merged into the comparative-fault analysis rather than a complete bar.

5. What is the rule for strict liability for abnormally dangerous activities?

   Liability without fault attaches when an activity (1) creates a foreseeable and highly significant risk of serious harm even when reasonable care is exercised, and (2) is not a matter of common usage. Examples: blasting, storing explosives, toxic chemicals.

6. What is the rule of Rylands v. Fletcher?

   A person who brings onto his land something likely to do mischief if it escapes, and makes a 'non-natural' use of the land, is strictly liable for damage caused by its escape. It is a foundation of strict liability for abnormally dangerous activities.

7. What is the strict liability rule for wild versus domestic animals?

   Wild (non-domesticated) animals: the owner is strictly liable for harm resulting from the animal's dangerous propensities. Domestic animals: the owner is liable only if he knew or had reason to know of the animal's dangerous propensities (the 'one-bite' rule).

8. What is the strict liability rule for trespassing livestock?

   An owner of livestock (other than household pets) is strictly liable for the reasonably foreseeable property damage caused by the animals trespassing onto another's land.

9. What are the three theories of products liability?

   (1) Negligence, (2) strict products liability, and (3) breach of warranty (express, implied warranty of merchantability, and implied warranty of fitness for a particular purpose). Misrepresentation is sometimes listed as a fourth.

10. What are the elements of a strict products liability claim?

    (1) The defendant is a commercial supplier (merchant), (2) the product was defective when it left the defendant's control, (3) the defect caused the injury (actual and proximate cause), and (4) the plaintiff suffered damages. No privity is required.

11. What are the three types of product defects?

    (1) Manufacturing defect—the product departs from its intended design (consumer-expectation test). (2) Design defect—all units are dangerous, tested by risk-utility (was there a reasonable alternative design?). (3) Warning/marketing defect—inadequate warnings or instructions.

12. What is the consumer-expectation test versus the risk-utility test in design defect cases?

    Consumer-expectation: a product is defective if it is more dangerous than an ordinary consumer would expect. Risk-utility (majority for design defects): a product is defective if a reasonable alternative design would have reduced foreseeable risks at acceptable cost.

13. What defenses apply in strict products liability cases?

    Comparative fault/comparative responsibility (most states apply it to reduce recovery), assumption of risk (knowing use of a defective product), and product misuse that is unforeseeable. Ordinary contributory negligence (mere failure to discover the defect) is generally not a defense.

14. How is comparative fault applied in products liability cases?

    Most jurisdictions extend comparative fault principles to strict products liability, reducing the plaintiff's recovery by her percentage of responsibility (e.g., unforeseeable misuse or knowingly using a dangerous product), rather than barring recovery entirely.

15. What are the elements of common-law defamation?

    (1) A defamatory statement of or concerning the plaintiff, (2) publication to a third party, (3) falsity, (4) fault (depends on plaintiff's status), and (5) damages (presumed for libel/slander per se, otherwise special damages required).

16. What is the difference between libel and slander, including slander per se?

    Libel is written/recorded defamation (damages presumed). Slander is spoken defamation (special damages required) unless it is 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.

17. What fault standards do public and private figures face in defamation (constitutional overlay)?

    Public officials/figures (on matters of public concern) must prove 'actual malice'—knowledge of falsity or reckless disregard for the truth (NY Times v. Sullivan). Private figures on matters of public concern must prove at least negligence (Gertz v. Robert Welch).

18. What are the four privacy torts?

    (1) Appropriation of plaintiff's name or likeness for commercial advantage, (2) intrusion upon seclusion, (3) public disclosure of private facts, and (4) false light in the public eye. Truth is generally not a defense to intrusion or appropriation.

19. What are the elements of intentional misrepresentation (fraud/deceit)?

    (1) A material misrepresentation of fact, (2) scienter (knowledge of falsity or reckless disregard), (3) intent to induce reliance, (4) actual and justifiable reliance by the plaintiff, and (5) damages. Negligent misrepresentation requires a breach of a duty owed to a foreseeable plaintiff (usually in commercial settings).

20. What is vicarious liability and when is an employer liable for an employee's torts (respondeat superior)?

    Vicarious liability imputes one person's tort to another based on relationship. An employer is liable for torts committed by an employee within the scope of employment. Intentional torts are usually outside the scope unless force is inherent to the job or serves the employer.

21. What is the 'frolic and detour' distinction and the rule for independent contractors?

    A minor deviation ('detour') is within the scope of employment; a major deviation ('frolic') is not, relieving the employer. A hiring party is generally not liable for an independent contractor's torts, except for non-delegable duties or inherently dangerous activities.

22. What is the difference between joint and several liability and contribution versus indemnity?

    Joint and several liability lets a plaintiff recover the full judgment from any one of multiple tortfeasors. Contribution lets a paying tortfeasor recover the others' proportional shares. Indemnity shifts the entire loss to another (e.g., by contract or from active to passive tortfeasor).

23. What is private nuisance and how does it differ from trespass to land?

    Private nuisance is a substantial and unreasonable interference with another's use and enjoyment of land. Unlike trespass (which requires a physical invasion of the land), nuisance protects use and enjoyment and often involves intangibles like noise, odor, or light; the interference must be both substantial and unreasonable.

24. What is public nuisance and who may recover for it?

    Public nuisance is an unreasonable interference with a right common to the general public (e.g., public health, safety, morals). A private individual may recover only if she suffered harm different in kind from that suffered by the general public.

What this deck covers

Torts and Civil Liability flashcards FAQ