Practice Questions

Question 1

Special damages

Answer 1

pecuniary [economic] damages (e.g. lost jobs)

Question 2

Exotic pets (strict liability)

Answer 2

Don’t need to be considered dangerous, just non-domestic (e.g. skunk)

Question 3

Children engaged in adult activity (e.g. driving boats)

Answer 3

When children choose to engage in dangerous activities engaged by adults, no account of their childhood is taken into account and the NEGLIGENCE RULE FOR ADULTS APPLIES.

(e.g. motorized vehicle like snowmobile)

Question 4

Fraudulent Misrepresentation (aka fraud)

Answer 4

One who makes a fraudulent misrepresentation for the purpose of inducing another to act or refrain to act. You get pecuniary damages as a result of justifiable reliance.

Question 5

Invasion of privacy of a mom crying at her dead son killed by a gang.

Answer 5

No invasion of privacy of something that happens in public view and its newsworthy.

Question 6

Burden-Shifting

Answer 6

When the P sues all of multiple actors and proves that each engaged in tortious conduct that exposed the P to a risk of harm and that the tortious conduct of one or more of them caused the P harm but the P cannot reasonably be expected to prove which actor or actors caused the harm, the burden of proof is shifted to the Ds.

Question 7

Contributory Negligence

Answer 7

In a contributory negligence state, contributory negligence is never a defense to any intentional tort.

Question 8

Interference with Dead Body

Answer 8

A P can recover for emotional distress suffered on account of the negligent handling of the dead body of the P’s close relative, even though the P herself was never in danger of physical harm from the D’s negligence.

(e.g. hospital accidently cremated dead husband and wife wanted a casket funeral)

Question 9

Indivisible Injury and Liability

Answer 9

If the independent tortious conduct of two or more persons is a legal cause of an indivisible injury, each person is jointly and severally liable for the recoverable damages caused by the tortious conduct.

Burden of proof is on the two d to prove otherwise.

Question 10

Obvious dangers and strict liability:

Answer 10

A manufacturer is not required to warn of obvious dangers.

A manufacturer’s failure to warn of dangers in using the product may make the product defective, thus triggering strict liability. But a manufacturer is not required to give warnings of obvious dangers.

Question 11

Property owner using force to prevent/end trespasser

Answer 11

A property owner is privileged to use reasonable force to prevent or end a trespasser’s intrusion on his land BUT

A landowner exercising the privilege to defend his property is not permitted to use a level of force that is “intended or likely to cause bodily harm . . . in EXCESS of which the owner correctly or reasonably believes to be necessary to prevent or terminate the other’s intrusion.

Question 12

Normal Consequence Test

Answer 12

If the negligent actor is liable for an injury which impairs the physical condition of another’s body, the actor is also liable for harm sustained in a subsequent accident which would not have occurred had the other’s condition not been impaired and which is a normal consequence of such impairment.

Question 13

Public Necessity

Answer 13

A person has privilege to enter another’s land if the entry is or reasonably appears to be necessary to prevent serious harm to the person or his CHATTELS

• you keep forgetting that you can also protect your property.

Question 14

Defamation on Public Figure

Answer 14

Reckless conduct is not measured by whether a reasonably prudent person would have published or would have investigated before publishing. Rather, the court said for recklessness there must be sufficient evidence to permit the conclusion that the D in fact entertained serious doubts as to the truth of his publication.

Question 15

Auctioneer and strict liability

Answer 15

Strict liability applies only against one who is “engaged in the business of selling” the type of product involved.

A court would almost certaintly conclude that an auctioneer acting at the behest of a creditor to sell various mortgaged items, is not “engaged in the business of selling” that specific product.

Question 16

Nuisance suit and the value of property

Answer 16

P can win a nuisance suit by showing that the interference with their use and enjoyment of their property was substantial.

THERE IS NO REQUIREMENT THAT THE VALUE OF THE PROPERTY HAVE BEEN REDUCED.

Question 17

No Comparative Fault and Strict Liability

Answer 17

In states that have not adopted comparative fault, a P’s contributory negligence is not a defense to strict liability, because strict liability is independent of general negligence principles.

Question 18

Emotional distress and real property

Answer 18

The law does not recognize a claim for damages for emotional distress incident to negligently caused property loss.

There was no danger to the P of bodily injury and his emotional distress is due solely to his being upset at the property damage, court do not allow recovery even if there are physical symptoms from the distress.

Question 19

Negligence per se and unconscious act:

Answer 19

An unconscious act cannot be the basis for a statutory violation.

Even if there is a statutory violation, a statutory violation could be excused if it was due to an unexpected medical emergency.

Question 20

Causation:

Answer 20

Actual cause, also referred to as “cause in fact”

Proximate cause, also known as the “legal cause”

Question 21

Truth and defamation

Answer 21

Truth is always a complete defense to defamation.

Question 22

Transferred intent and self-defense

Answer 22

Self-defense can be a transferred intent defense. Example: Guard shoots bad guy but accidentally bullet jumps off wall and kills innocent banker.

Question 23

Express Assumption of Risks

Answer 23

An express assumption of risk arises when a P explicitly agrees with a D in advance of getting injured not to be held liable

Question 24

Intentional tort and Contribution

Answer 24

An intentional tortfeasor is liable for all the consequences of his wrongful action, intended, unintended and unforeseeable, including the negligent action of one who was affected by the wrongful act.

Question 25

Concurrent Cause of Harm

Answer 25

Where D’s negligent act united with another event, the acts of both D will be considered the cause of at least part of the harm, and the D will be held jointly and severally liable. The effect is that both companies are liable for the entire amount of the rancher’s damages.

EVEN IF the damages resulted from the acts of two independant D’s, neither of which alone would have been sufficient to do the overall damage.

Question 26

Strict Product Liability and Misuse

Answer 26

Although a commercial supplier can potentially defeat a strict liability claim on the basis that the P misused the product, the misuse must not be reasonably foreseeable.

Question 27

Nuisance and economic harm

Answer 27

A P bringing a nuisance claim can recover based solely on economic damages.

Question 28

Defamation and the publication requirement

Answer 28

Communication to a 3rd party may be intentional or negligent. The owner cannot avoid liability based on intending for his statement to be heard solely by the employee. In order to be actionable, slander must be published to a 3rd party.

Publication may occur both intentionally or negligently. In this case, although the owner did not intentionally publish the slander, he did so negligently by shouting out the accusation when multiple other employees were present. Therefore, the owner’s intent for his statement to only be heard only by the employee would not cut short his liability.

Question 29

Battery and the “harmful or offensive contact” requirement

Answer 29

Contact to the P’s person is considered offensive if it is not expressly or impliedly consented to by the P.

Unlike a medical malpractice claim, a prima facie case for battery does not require proof of damages to prevail. In this case, the athlete signed a consent form specifically allowing the team doctor to perform the surgery, not the surgeon. Regardless of any superior skill level, the surgeon touched the athlete without his consent, which constitutes offensive contact, and thus meets the requirements for a battery.

Question 30

Respondent Superior

Answer 30

The respondent superior doctrine does not apply to independent contractors.

Ordinarily, a landowner would not be liable for the acts of an independent contractor, as long as the contractor was not negligently hired. Two exceptions:

1) Independent contractor is engaged in inherently dangerous activities.
2) Duty is non-delegable (duty to keep premises safe).

Question 31

False imprisonment

Answer 31

Where a P is unaware of the confinement, a false imprisonment claim will succeed if the P suffered actual harm.

Question 32

Intentional Emotional distress: Severe emotional distress element

Answer 32

P must show that he in fact suffered emotional distress. At a minimum, this requires a showing that the mental distress was sufficiently severe that she sought medical aid for it.

P must also show that the conduct was such that a reasonable person would suffer such distress. If she is an unusually sensitive person who suffered severe distress when a normal person would not, there will be no recovery. Most modern courts do not require a showing of actual physical harm to establish severe distress.

IMPORTANT: Negligent infliction of emotional distress only applies in situations where the D created a foreseeable risk of physicial injury to the P.

Question 33

Defamation and False Statements:

Answer 33

Defamation is not a strict liability tort, which means that false statements alone are not always defamatory. In order to qualify as a defamatory statement, the offending statement must be unprivileged. Therefore in some instances, a person cannot be sued for defamation when he or she makes a statement that is proved to be false.

Question 34

Invasion of privacy and the defense of “TRUTH”

Answer 34

Truth is not a defense to invasion of privacy.

Question 35

Coming to the nuisance

Answer 35

Coming to the nuisance does not automatically preclude a nuisance action, but rather is just one of numerous factors to be considered in determining whether the P will prevail.

Question 36

Negligence and unforeseeable harm

Answer 36

A defendant will not be liable for negligent conduct where a D’s negligent conduct creates a risk of a harmful result that is an unforeseeable type of harm.

Question 37

The tort of invasion of privacy covers four kinds of wrongs:

Answer 37

1. Intrusion into seclusion
2. Public disclosure of private facts
3. False light publicity
4. Appropriation of another’s name or likeness

Question 38

Intentional Torts and Minors

Answer 38

Any minor will be liable for an intentional tort as long as he or she possesses the requisite intent.

This is somewhat different than negligence.

Question 39

Public Nuisance vs. public nuisance

Answer 39

A private person may recover for a public nuisance only if he has suffered unique damage not suffered by the public.

Question 40

Wrongful birth/pregnancy claims:

Answer 40

States are not in agreement as to the full scope of damages the parents may recover: some permit recovery of the medical expenses for a kid with genetic defect, while others do not.

Question 41

Trespassing Cattle

Answer 41

Two perspectives:

Some states require cattle owners to protect crop-growers from cattle trespass giving rise to strict liability.

Other states require landowners bordering cattle grazing lands to erect fences by passing “fence-out” statutes. As a result, those states would only hold the cattle owner liable for driving out the cows

Question 42

Trespass and damages:

Answer 42

For an intentional trespass to land, damage is not required; the court will award nominal damages based on the trespass alone.

Question 43

Negligent Infliction of Emotional Distress

Answer 43

Non-economic damages cannot be tacked on to a negligent damage to property claim absent physical injury.

Question 44

Doctors and duty

Answer 44

There is no affirmative duty by physician to assist non-patient stranger in need.

On a random note . . .
GOOD SAMARITAN STATUTES: provide various levels of immunity to polic/docs/firefighters when offering aid to others.

Question 45

Splitting mortgage payments between the life estate holder and the remainderman

Answer 45

The rule is that the life estate holder pays the portion of the mortgage reflecting interest, and the remainderman pays the principle.

Question 46

Tenants in common:

Answer 46

Either co-tenants have the right at anytime to demand partition. (courts will try to physically divide the property where this is feasible; if not, they will order the property sold and the proceeds divided.)

During the course of the partition, the court will order an accounting, to determine whether either party owes the other money for rents collected, taxes paid, ect.

Question 47

False imprisonment

Answer 47

If the confinement was not intentional, claim of false imprisonment will fail.

E.g. Security guard made his final inspection of the lot prior to locking up. Therefore, the guard did not intend to confine the buyer.

Question 48

Negligence and product liability of a store seller:

Answer 48

The minimum proof necessary to establish the seller’s liability would involve proving that a reasonable inspection would have revealed the system’s defects, and the seller unreasonably failed to protect possible P from those dangers.

Question 49

NEGLIGENCE: Duty of Care

Answer 49

Generally, there is no affirmative duty of a defendant to help or protect others. There are several exceptions to that rule and one of them is situations where the D has a heightened level of control over the safety of individuals in its care. Classic examples of such situations are parents protecting kids, inkeepers protecting guests and prison wardens protecting inmates.

Question 50

Custom and Negligence:

Answer 50

custom is not conclusive on the issue of negligence.

Question 51

Economic damage 3rd Party:

Answer 51

Normally pure economic loss (a loss that is not accompanied by physical harm to the person) may not be recovered by a third party as a matter of public policy.

Question 52

Punative Damages:

Answer 52

An intentional tort victim may recover punative damages if the D’s conduct was outrageous or malicious. There are situations where punative damages may be recoverable in negligence cases if the D’s conduct was shown to be wanton and willful, reckless or malicious (but punative damages are usually not common in negligence cause of action).

Question 53

Misrepresentation

Answer 53

Misrepresentation is a type of tort claim which requires a P to show that the D made a misrepresentation of material fact for the purpose of inducing the P to rely on the misrepresentation to his detriment.

TO PREVAIL ON A CLAIM FOR MISREPRESENTATION, A P MUST HAVE ACTUALLY RELIED ON THE D’S MISREPRESENTATION.

Question 54

Wrongful birth vs. wrongful life

Answer 54

WRONGFUL BIRTH: parents sues. (parent can recover damages for medical expenses of labor as well as pain and suffering. If child is disabled, they can recover damages for additional medical expenses of caring for the kid.

WRONGFUL LIFE: child sues. Only a few states may a child recover anything and it is usually limited to special damages attributable to disability.

Question 55

Expired Liscence:

Answer 55

Violation of a licensing statute (drivers) does not constitute negligence per se.