Torts & Personal Injury Flashcards

A construction company uses dynamite with every possible precaution, but the vibrations still crack a neighbor's foundation. Under what theory is the company most likely liable?

Answer: Strict liability for an abnormally dangerous activity

Blasting is the classic abnormally dangerous activity, so liability is strict even when the defendant used utmost care.

Under the Restatement (Third) of Torts: Products Liability, a plaintiff claiming a design defect generally must show:

Answer: That a reasonable alternative design would have reduced the foreseeable risk of harm

The Restatement (Third) uses a risk-utility test that generally requires proof of a reasonable alternative design.

One soda bottle in a production run contains glass shards because of a rare machine malfunction, although the manufacturer used state-of-the-art quality control. An injured consumer sues. The manufacturer is:

Answer: Strictly liable for a manufacturing defect

A manufacturing defect, meaning a departure from the intended design, triggers strict liability whatever care was used.

A newspaper publishes a false statement about the city mayor's official conduct. Under New York Times v. Sullivan, to recover the mayor must prove:

Answer: Actual malice, meaning knowledge of falsity or reckless disregard for the truth

Public officials suing over statements about their official conduct must prove actual malice by clear and convincing evidence.

A delivery driver makes a short side trip during his route to pick up lunch and negligently hits a pedestrian. Under respondeat superior, the employer is most likely:

Answer: Liable, because a minor deviation is a detour within the scope of employment

Minor deviations are detours that stay within the scope of employment, while major departures for personal purposes are frolics.

Which best describes a private nuisance?

Answer: A substantial and unreasonable interference with another's use and enjoyment of land

Private nuisance requires a substantial and unreasonable interference with a possessor's use and enjoyment of land, judged by a normal person's standard.

After a fatal accident, which claim lets the decedent's estate recover for the conscious pain and suffering the decedent experienced before death?

Answer: Survival action

A survival action continues the decedent's own claims, including pre-death pain and suffering, while wrongful death compensates the survivors' losses.