MEE Torts

Question 1

What are the elements of Assault? Expand on the first element.

Answer 1

(1) Act by the defendant creating a reasonable apprehension in the plaintiff
(2) Of an immediate battery (harmful or offensive contact to the plaintiff’s person).

Apprehension shouldn’t be confused with fear or intimidation, apprehension is knowledge.

Question 2

What are the elements of Battery? Expand on the second element.

Answer 2

(1) Harmful or offensive contact
(2) Contact must be with the plaintiff’s person.

Contact can be direct (for example, striking the plaintiff) or indirect (for example, poisoning the plaintiff’s food).

Question 3

Can children be held liable for Assault or Battery?

Answer 3

Yes, there is no incapacity defense for intentional torts.

Question 4

What are the elements of False Imprisonment?

Answer 4

(1) An act or omission on the part of the defendant that confines or restrains the plaintiff
(2) The plaintiff must be confined to a bounded area.

Question 5

What are the elements of Intentional Misrepresentation (Fraud)?

Answer 5

(1) Misrepresentation of a material past or present fact
(2) Scienter (when the defendant made the statement, they knew or believed it was false or that there was no basis for the statement)
(3) Intent to induce the plaintiff to act or refrain from acting in reliance upon the misrepresentation
(4) Causation (actual reliance)
(5) Justifiable Reliance
(6) Damages (the plaintiff must suffer actual pecuniary loss).

Question 6

What is the Prima Facia case for defamation?

Answer 6

(1) A defamatory statement that specifically identifies the plaintiff
(2) Published to a third party
(3) Falsity of the defamatory language
(4) Fault on the part of the defendant
(5) Damage to the plaintiff’s reputation.

Question 7

How do damages work in defamation cases? (Libel vs. Slander)

Answer 7

Libel - Damages generally are presumed under the law of libel.

Slander - In general, the plaintiff must prove that they suffered special damages—that is, they must have suffered some pecuniary loss in order to recover anything.

Question 8

How does defamation work differently for public figures or matters of public concern?

Answer 8

Actual malice must be proved in defamation cases brought by public officials and public
figures. Knowledge of falsity or a reckless disregard for the truth.

Only negligence regarding the falsity must be proved if the statement involves a matter of “public concern”.

Question 9

What are the two privileges that apply to defamation cases?

Answer 9

(1) Absolute Privilege—Can Never Be Lost
Communications between spouses.
Remarks made during judicial proceedings, by legislators during proceedings (even if not related to the proceedings), by executive officials, in “compelled” broadcasts.

(2) Qualified Privilege—Can Be Lost Through Abuse - A qualified privilege arises only when there is a public interest in encouraging candor.

Question 10

What is the definition of “false light”?

Answer 10

The false light must be something highly offensive to a reasonable person under the circumstances. For liability to attach, the defendant must circulate the statement to the public at large.

Question 11

What are the elements of Intentional Infliction of Emotional Distress? Expand on the first element.

Answer 11

(1) An act by the defendant amounting to extreme and outrageous conduct.
(2) The plaintiff must suffer severe emotional distress.

Extreme and Outrageous Conduct =
(1) It is continuous in nature OR…
(2) It is committed by a certain type of defendant (common carriers or innkeepers may be liable even for mere “gross insults”) OR…
(3) It is directed toward a certain type of plaintiff (children, elderly persons, someone who is pregnant, supersensitive adults if the
sensitivities are known to defendant).

Question 12

What are the elements of Conversion?

Answer 12

(1) Act by the defendant that interferes with the plaintiff’s right of possession in a chattel; AND
(2) Interference is serious enough in nature or consequences to warrant that the defendant pay the chattel’s full value.

Question 13

What are the elements of Tresspass to Chattels?

Answer 13

Act by the defendant that interferes with the plaintiff’s right of possession in a chattel. Moving an inch is enough.

Question 14

What are the primary concerns to invoke the “consent” defense to intentional torts?

Answer 14

(1) Was there a valid consent?
(2) Did the defendant stay within the boundaries of the consent?

Question 15

What are the primary concerns to invoke the “defense of property” defense to intentional torts?

Answer 15

One may use reasonable force to prevent the commission of a tort against their real or personal property. A request to desist or leave
must first be made unless it clearly would be futile or dangerous.

Question 16

What is the defense of “recapture of chattels”? How may it be used differently depending on the other’s possession began?

Answer 16

When another’s possession began lawfully (for example, a conditional sale), one may use only peaceful means to recover the chattel.

Reasonable force may be used to recapture a chattel only when in hot pursuit of one who has obtained possession wrongfully, for example, by theft.

Question 17

What are a landowner’s duties to different plaintiff’s on their property?

Answer 17

Unknown Trespassers - No duty.
Known Tresspassers - Known man-made death traps.
Licensee (enters with permission for own personal/business purpose, (includes social guests)) - Known and concealed dangers.
Invitee (enters for purpose of business of landholder) - Known (or could have known on a reasonable inspection) and concealed dangers.
Children - (Attractive Nuisance Doctrine) Exercise ordinary care to avoid a reasonably forseeable risk of harm.

Question 18

What is Negligence Per Se?

Answer 18

A duty of care is set by a statute under the rules that govern using statutes in negligence litigation, proof of violation of the statute is conclusive evidence of breach of duty.

Question 19

What is Res Ipsa Loquitur?

Answer 19

(1) The accident causing the injury is a type that is normally associated with negligence.
(2) The negligence is probably attributable to the defendant (meaning this type of accident ordinarily happens because of the negligence of someone in the defendant’s position).

Question 20

What is Actual Cause? What is Proximate Cause?

Answer 20

Actual Cause - Factual cause, use the “but for” test.
Proximate Cause - A defendant generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts, use the “forseeability” test.

Question 21

How does the employer-employee relationship effect tort law? How do we determine whether an employer is liable?

Answer 21

An employer will be vicariously liable for tortious acts committed by their employee if the tortious acts occur within the scope of the employment relationship. “Doctrine of Respondeat Superior”.

Frolic vs. Detour

Question 22

Is an employer liable for the intentional torts of their employees?

Answer 22

Generally, no, unless one of the following…

(1) The employee is furthering the business of the employer, for example, (removing customers).
(2) Force is authorized in the employment, for example, (a bouncer).
(3) Friction is generated by the employment, for example, (bill collector).

Question 23

What is comparative negligence?
What is partial comparative negligence?
What is pure comparative negligence?

Answer 23

Comparative negligence = Reduce recovery by plaintiff’s negligence.
Partial comparative negligence = Bar plaintiff recovery if over 50%.
Pure comparative negligence = Plaintiff recovers 1%, even if plaintiff is 99% at fault.

Question 24

What are the theories of product liability?

Answer 24

(1) Intent
(2) Negligence
(3) Implied Warranties of Merchantability and Fitness for a Particular Purpose
(4) Representation Theories (express warranty and misrepresentation)
(5) Strict Liability.

Question 25

What are the elements of strict products liability?

Answer 25

(1) The defendant is a merchant (in other words, a commercial supplier of the product);
(2) The product is defective;
(3) The product was not substantially altered since leaving the defendant’s control; and
(4) The plaintiff was making a foreseeable use of the product at the time of the injury.

Question 26

When can a plaintiff recover punitive damages in a negligence case?

Answer 26

A plaintiff may recover punitive damages if defendant’s conduct is “wanton and willful,” reckless, or malicious.

Question 27

What is survival of action? What actions do not survive?

Answer 27

Survival acts allow one’s cause of action to survive the death of one or more of the parties. The acts apply to actions involving torts to property and torts resulting in personal injury.

However, torts invading intangible personal interests (for example, defamation, invasion of right of privacy, malicious prosecution) expire upon the victim’s death.

Question 28

What is a private nuisance?

Answer 28

A substantial, unreasonable interference with another private individual’s use or enjoyment of property that the other individual actually possesses or has a right of immediate possession.

Question 29

What is a public nuisance?

Answer 29

An act that unreasonably interferes with the health, safety, or property rights of the community.