# Torts II — Negligence (Duty, Breach, Negligence Per Se, Res Ipsa, Causation), Defamation, Nuisance & Strict Products Liability

> Detailed mastery of negligence elements, standards of care, premises liability, Learned Hand formula, causation tests, affirmative defenses, strict products liability, defamation, and nuisance.

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- **Level:** intermediate
- **Languages:** en → en
- **Total Cards:** 32

## Flashcards (32 Cards)

| # | Front (Term / Prompt) | Back (Definition / Answer) | Example | Multiple-Choice Options |
| :--- | :--- | :--- | :--- | :--- |
| 1 | What is the standard test for Proximate Cause (Scope of Liability), and what does Wagon Mound No. 1 establish? | • Foreseeability Test: Defendant is liable only for harms that are within the foreseeable scope of the risks created by their negligent conduct. • Wagon Mound No. 1 (1961): Defendant negligently spilled furnace oil into Sydney Harbour, which ignited unexpectedly from cotton waste. Privy Council held defendant liable only for the foreseeable type of damage (fouling of the slipways), not for the unforeseeable catastrophic fire damage. The specific manner of occurrence need not be foreseen, but the type of harm must be foreseeable. |  |  |
| 2 | What are the three prima facie requirements of Res Ipsa Loquitur, and what is its procedural effect? | Requirements: 1. The incident is of a type that ordinarily does not occur in the absence of negligence (e.g., Byrne v. Boadle flour barrel falling); 2. The instrumentality causing the harm was within the exclusive control of the defendant; 3. The injury was not due to any voluntary action or contribution on the part of the plaintiff. Procedural Effect: Avoids a directed verdict. It creates a permissible inference of negligence that the jury may accept or reject, but does not shift the ultimate burden of proof to defendant. |  |  |
| 3 | What standard of care applies to children in negligence actions, and what is the adult activity exception? | • General Rule: A child is held to the standard of a reasonable child of like age, intelligence, maturity, and experience. • Adult Activity Exception: When a minor engages in an activity that is inherently dangerous and typically undertaken only by adults (e.g., operating an automobile, powerboat, airplane, or tractor), the child is held to the adult reasonable prudent person standard without reduction for age. |  |  |
| 4 | What are valid defenses to Strict Products Liability, and how does the Economic Loss Rule apply? | • Valid Defenses: Comparative fault (in comparative states), Unforeseeable product misuse or alteration, Assumption of the risk (knowing and voluntary encounter with defect), Compliance with government safety regulations (persuasive evidence, but rarely pre-emptive unless federal preemption applies). • Economic Loss Rule: If a defective product malfunctions and damages only itself without causing personal injury or damage to other property, the plaintiff cannot recover in tort strict liability; the remedy lies solely in contract/warranty law. |  |  |
| 5 | What is the strict liability rule for Wild Animals vs. Domestic Animals? | • Wild Animals (ferae naturae): Possessor is strictly liable for any physical harm caused by the wild animal's inherently dangerous characteristics, even if the possessor exercised all possible care in keeping or restraining it. • Domestic Animals (mansuetae naturae): Possessor is NOT strictly liable unless the owner had scienter—prior knowledge or reason to know of the individual animal's dangerous propensities abnormal to its class ('One-Bite Rule'). If no scienter, negligence must be proven. |  |  |
| 6 | What are the elements for Strict Liability for Abnormally Dangerous Activities under Rylands v. Fletcher and Restatement § 520? | Restatement (Second) of Torts § 520 factors: 1. High degree of risk of some harm to person or property; 2. Likelihood that the harm that results will be great; 3. Inability to eliminate the risk by the exercise of reasonable care; 4. Extent to which the activity is not a matter of common usage; 5. Inappropriateness of the activity to the place where it is carried on; and 6. Extent to which its value to the community is outweighed by its dangerous attributes (e.g., blasting, transporting toxic chemicals, crop dusting). |  |  |
| 7 | What was the fundamental clash between Justice Cardozo's majority opinion and Justice Andrews's dissent in Palsgraf v. Long Island Railroad Co. regarding the scope of Duty? | • Cardozo Majority: Duty is relational. A defendant owes a duty of care ONLY to foreseeable plaintiffs located within the physical 'zone of danger' created by the defendant's conduct. • Andrews Dissent: Everyone owes a duty to the world at large to refrain from acts that unreasonably threaten the safety of others. If negligence occurs, liability to any injured party is governed by proximate cause (practical politics and directness), not duty. |  |  |
| 8 | What standard of care applies to medical professionals, and what are the two standards for Informed Consent? | • Standard: A physician owes the duty to exercise the skill, knowledge, and care typically possessed and exercised by ordinary members of the profession in good standing (national standard under modern trend; traditional rule used local community). • Informed Consent:   1. Physician-Based Standard (Traditional): Duty to disclose what a reasonable physician in the same field would disclose.   2. Patient-Based Standard (Modern): Duty to disclose all material risks that a reasonable patient in the plaintiff's position would deem significant in deciding whether to undergo the procedure. |  |  |
| 9 | What constitutes an Information / Warning Defect, and what is the Learned Intermediary Doctrine? | • Warning Defect: A product is defective if it lacks adequate warnings or instructions regarding non-obvious, foreseeable dangers that could have been avoided by reasonable instructions. Warning must be clear, conspicuous, and convey the gravity of the risk. • Learned Intermediary Doctrine: For prescription pharmaceuticals and medical devices, the manufacturer satisfies its duty to warn by warning the prescribing physician (the learned intermediary), rather than the ultimate patient, because the doctor is best positioned to assess patient-specific risks. |  |  |
| 10 | What is the Eggshell Skull (Thin Skull) Rule in Tort Law? | A tortfeasor takes the victim as they find them. Once the plaintiff establishes the prima facie elements of liability (showing the defendant breached a duty causing foreseeable harm), the defendant is liable for the full extent of the physical damages suffered by the plaintiff, even if an unforeseeable pre-existing physical condition or vulnerability makes the resulting injuries far more catastrophic than could be anticipated. |  |  |
| 11 | What are the four prima facie elements of Strict Products Liability under Restatement (Second) of Torts § 402A? | 1. The defendant is a commercial merchant / seller engaged in the business of selling or leasing such products; 2. The product was in a defective condition unreasonably dangerous to consumers; 3. The defect existed at the time the product left the defendant's control (no substantial modification); 4. Causation: The defect was the actual and proximate cause of plaintiff's injury; and 5. Damages: Physical harm to person or property (purely economic loss is barred). |  |  |
| 12 | What are the distinctions among Contributory Negligence, Pure Comparative Fault, and Modified Comparative Fault? | • Traditional Contributory Negligence: Any negligence by the plaintiff, however slight (even 1%), completely bars all recovery (retained only in MD, NC, VA, AL, and DC). • Pure Comparative Fault: Plaintiff can recover regardless of percentage of fault; award is reduced strictly by plaintiff's percentage of fault (e.g., 90% at-fault plaintiff recovers 10% of damages). • Modified Comparative Fault:   1. 50% Bar Rule: Plaintiff recovery barred if plaintiff's fault is 50% or greater (must be 49% or less to recover);   2. 51% Bar Rule: Plaintiff recovery barred if plaintiff's fault is greater than defendant's fault (barred at 51% or more; can recover at 50%). |  |  |
| 13 | What are the four prima facie elements of a cause of action for Negligence? | 1. Duty: A legally recognized obligation to conform to a specific standard of conduct to protect others from unreasonable risks of harm; 2. Breach: Failure to conform one's conduct to the requisite standard of care; 3. Causation: The breach was both the cause-in-fact (actual cause) and proximate cause (scope of liability) of plaintiff's injury; and 4. Damages: Actual physical injury or property damage (nominal damages are NOT available in negligence). |  |  |
| 14 | How does Alternative Liability operate under Summers v. Tice, and how does Market Share Liability operate under Sindell? | • Alternative Liability (Summers v. Tice): Two defendants act negligently, but only one caused the harm, and it is impossible to determine which one. Burden of proof shifts to each defendant to prove their conduct did not cause the harm; if neither can, both are jointly and severally liable. • Market Share Liability (Sindell v. Abbott Labs): Where multiple manufacturers produce a generic, fungible, defective drug (DES) and plaintiff cannot identify the specific producer, each defendant is held liable in proportion to its share of the national market at the time of manufacture. |  |  |
| 15 | What is Express Assumption of Risk, and what public policy factors render exculpatory waivers unenforceable? | Express Assumption of Risk occurs where plaintiff explicitly agrees in advance (by written contract or clear oral statement) to relieve defendant of the duty of reasonable care. Waivers are unenforceable when: 1. Attempting to waive liability for gross negligence, recklessness, or intentional torts; 2. Unequal bargaining power involving essential public services (common carriers, public utilities, emergency medical care: Tunkl factors); 3. Ambiguous or concealed exculpatory language failing to provide clear notice. |  |  |
| 16 | What are the three bystander NIED elements established in Dillon v. Legg and Thing v. La Chusa? | A bystander outside the zone of danger can recover for NIED if: 1. Closely related to the injured victim (spouse, parent, child, sibling); 2. Present at the scene of the injury-producing event at the time it occurs; 3. Personally and contemporaneously aware that the event is causing injury to the victim (sensory and contemporaneous perception); and 4. Suffers serious emotional distress beyond that which would be anticipated in a disinterested witness. |  |  |
| 17 | What are the elements for recovery under Negligent Infliction of Emotional Distress (NIED) in 'near-miss' / Zone of Danger cases? | 1. Defendant was negligent toward plaintiff; 2. Plaintiff was within the physical 'zone of danger' created by defendant's negligent conduct (at immediate risk of physical impact); 3. Plaintiff suffered severe emotional distress caused by fear for their own personal safety; and 4. Majority rule requires the distress to manifest in physical symptoms (e.g., heart attack, miscarriage, neuroses; modern trend in some states abandons physical manifestation requirement). |  |  |
| 18 | What is the general common law rule regarding an affirmative duty to rescue or assist, and what are the recognized exceptions? | General Rule: There is no legal duty to rescue, protect, or aid a stranger in peril, even when rescue involves no personal danger. Exceptions: 1. Special relationships (common carrier-passenger, innkeeper-guest, school-student, jailer-prisoner, employer-employee); 2. Defendant created the peril (negligently or innocently); 3. Voluntary assumption of duty / undertaking (once rescue begins, rescuer must act with reasonable care and cannot leave victim in worse condition); 4. Statutory duties (e.g., hit-and-run reporting). |  |  |
| 19 | What are the five requirements of the Attractive Nuisance Doctrine under Restatement (Second) of Torts § 339? | 1. Artificial condition on the land; 2. Possessor knows or has reason to know children are likely to trespass on the place where condition exists; 3. Condition poses an unreasonable risk of death or serious bodily harm to trespassing children; 4. Children, because of youth, do not discover or realize the risk involved in intermeddling; 5. The utility to the possessor of maintaining condition and burden of eliminating danger are slight compared to the risk to children. |  |  |
| 20 | Under the traditional common law trichotomy of premises liability, what duty of care is owed to Invitees, Licensees, and Trespassers? | 1. Invitee (business guest or public attendee): Duty of reasonable care to inspect premises, discover latent dangerous conditions, and repair or warn of known and discoverable hazards. 2. Licensee (social guest or door-to-door visitor entering with permission for own purpose): Duty to warn of or make safe known, concealed, non-obvious dangerous conditions; NO duty to inspect. 3. Trespasser (unauthorized entrant): Generally no duty of care. Discovered/anticipated trespassers: duty to warn of or make safe known artificial conditions involving risk of death/serious harm. |  |  |
| 21 | What constitutional fault standards apply to Defamation under New York Times v. Sullivan and Gertz v. Robert Welch? | • Public Official / Public Figure (NYT v. Sullivan): Must prove by clear and convincing evidence that defendant published with 'Actual Malice'—knowledge that statement was false OR reckless disregard for whether it was false or not. • Private Figure, Matter of Public Concern (Gertz v. Welch): Must prove at least negligence to recover compensatory damages for actual injury; must prove Actual Malice to recover presumed or punitive damages. • Private Figure, Matter of Purely Private Concern (Dun & Bradstreet): State law may permit recovery of presumed and punitive damages without showing actual malice. |  |  |
| 22 | What is the difference between Private Nuisance and Public Nuisance? | • Private Nuisance: A substantial and unreasonable interference with the plaintiff's private use and enjoyment of their land. Substantial = offensive, inconvenient, or annoying to an average member of community. Unreasonable = gravity of harm outweighs utility of defendant's conduct. • Public Nuisance: An unreasonable interference with a right common to the general public (public health, safety, peace, or comfort). To bring a private civil action for public nuisance, a private individual must have suffered unique, particularized harm of a different kind (not just degree) from the general public. |  |  |
| 23 | What is the Learned Hand Formula for Breach of Duty, and how is it calculated? | Articulated in United States v. Carroll Towing Co. (1947): Liability for negligence exists if: B < P × L • B = Burden of taking adequate precautions to prevent the harm; • P = Probability of injury occurring if precautions are not taken; • L = Gravity or magnitude of the resulting Loss or injury. If the burden of precautions is less than the expected harm (probability multiplied by severity), failure to adopt precautions constitutes a breach of the duty of reasonable care. |  |  |
| 24 | What is the legal difference between an Intervening Cause and a Superseding Cause? | • Intervening Cause: Any factual event or act of a third party that occurs after defendant's negligent act and contributes to plaintiff's injury. If foreseeable (e.g., medical malpractice during treatment of injury, rescuer's actions, ordinary flight responses), it does NOT sever defendant's proximate causation. • Superseding Cause: An extraordinary, highly unforeseeable intervening act (e.g., act of God, intentional criminal violence, grossly reckless conduct) that breaks the causal chain and relieves the original negligent actor of liability. |  |  |
| 25 | How does the objective Reasonable Prudent Person (RPP) standard treat physical disabilities, mental illness, and average intelligence? | • Physical Disabilities: Accounted for. The standard is a reasonable person with that specific physical disability (e.g., blindness, paralysis, hearing impairment). • Mental Illness / Deficiencies: NOT accounted for. The mentally impaired or intellectually limited defendant is held to the objective standard of a person of normal intelligence and sanity (Restatement Second § 283B). • Special Skills: If defendant possesses superior knowledge or skills (e.g., professional surgeon or racecar driver), they are held to a standard commensurate with their superior abilities. |  |  |
| 26 | What are Absolute Defenses and Qualified Privileges in Defamation? | • Absolute Privileges (Immunity): Truth; Consent; Statements made during judicial proceedings; Statements made during legislative debate on the floor; Communications between spouses; Official executive statements. • Qualified (Conditional) Privileges: Statements made in good faith to protect publisher's or third party's legitimate interest, employment references, credit reports, reporting public proceedings. A qualified privilege is lost if abused: published with actual malice, ill will, or beyond the scope necessary. |  |  |
| 27 | What is the difference between Libel and Slander, and what are the four traditional categories of Slander Per Se? | • Libel: Defamation embodied in written, printed, or permanent recorded form (e.g., video, audio, print). General damages are presumed by law. • Slander: Spoken or transitory defamation. Requires proof of 'special damages' (actual pecuniary/economic loss) unless it qualifies as Slander Per Se. • Slander Per Se Categories (LUMP):   1. Loathsome disease (historically venereal disease, leprosy);   2. Unchastity / serious sexual misconduct;   3. Moral turpitude / serious crime conviction or accusation;   4. Professional incompetence or business/trade malpractice. |  |  |
| 28 | What are the common law elements of Defamation? | 1. A defamatory statement concerning the plaintiff (statement that tends to lower plaintiff's reputation in community or deter others from associating); 2. Publication: Communication of the defamatory statement to at least one third party who understood it; 3. Fault: At least negligence as to falsity (or actual malice if constitutional standards apply); and 4. Damages: Harm to plaintiff's reputation (special damages required unless libel or slander per se). |  |  |
| 29 | How is Cause-in-Fact established using the 'But-For' Test vs. the 'Substantial Factor' Test? | • But-For Test: The standard test. Plaintiff must show by a preponderance of the evidence that the injury would not have occurred 'but for' the defendant's negligent conduct. • Substantial Factor Test: Used when two or more independent negligent forces converge to bring about a single indivisible injury, and either force alone would have been sufficient to cause the harm (e.g., Kingston v. Chicago & N.W. Ry. merging fires). Each negligent actor is deemed an actual cause if their conduct was a substantial factor. |  |  |
| 30 | What are the two requirements for Negligence Per Se, and what are valid statutory excuses? | Requirements: 1. Plaintiff is a member of the specific class of persons the statute was designed to protect; and 2. The harm suffered is the specific type of harm the statute was enacted to prevent. Valid Excuses (Restatement Second § 288A): • Compliance would cause greater danger than violation (emergency); • Actor is incapacitated or unable after reasonable diligence to comply; • Statute is confusing, vague, or actor lacked knowledge of facts triggering statutory duty. |  |  |
| 31 | What duties does a landlord owe to tenants and their guests regarding safety on leased premises? | Traditional rule holds landlord not liable for injuries on leased premises, subject to five major exceptions (CLAPS): 1. Common areas under landlord's control (hallways, stairwells, lobbies); 2. Latent defects known to landlord and unknown to tenant at time of lease; 3. Assumption of repairs negligently performed; 4. Public use exception (premises leased for admission of the public); 5. Short-term lease of a furnished dwelling. |  |  |
| 32 | What is the difference between a Manufacturing Defect and a Design Defect in Products Liability? | • Manufacturing Defect: The particular unit deviates from the manufacturer's intended design specifications or blueprints due to a production or assembly error, making it more dangerous than identical units. • Design Defect: The entire product line conforms to blueprints, but the design itself is unreasonably dangerous. Evaluated under:   1. Consumer Expectations Test: Product failed to perform as safely as an ordinary consumer would reasonably expect; or   2. Risk-Utility Test: The risks of the design outweigh its utility, proven by showing a Reasonable Alternative Design (RAD) that was technologically and economically feasible. |  |  |

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