Rules

Question 1

Assault

Answer 1

To establish a prima face case for assault, the plaintiff must show an act by the defendant creating a REASONABLE APPREHENSION in the plaintiff of IMMEDIATE HARMFUL OR OFFENSIVE contact to the plaintiff’s person, intent by the defendant to bring about such apprehension, and causation.

Apparent ability is sufficient.

Question 2

Battery

Answer 2

To establish a prima facie case for battery, the plaintiff must show AN ACT by the defendant that brings about HARMFUL OR OFFENSIVE contact to the plaintiff’s person, intent by the defendant to bring about such contact, and that the defendant caused such an effect.

Question 3

False imprisonment

Answer 3

To establish a prima face case for false imprisonment, the plaintiff must show an ACT or OMISSION by the defendant that CONFINES or restrains the plaintiff to a BOUNDED AREA, intent on the part of the defendant to confine or restrain the plaintiff, and causation.

Restraint can be through direct or implied threat of force or failure to release.

Question 4

Intentional infliction of emotional distress

Answer 4

To establish a prima facie case for intentional infliction of emotional distress, the plaintiff must show:
- an act by the defendant amounting to EXTREME AND OUTRAGEOUS conduct
- intent by the defendant to cause the plaintiff to suffer severe emotional distress or recklessness as to the effect of their conduct
- causation, and
- damages (severe emotional distress)

Question 5

Trespass to chattels

Answer 5

To establish a prima facie case for trespass to chattels, the plaintiff must show
- an act by the defendant that INTERFERES with the plaintiff’s possession in the chattel
- intent to the thing that brings about the interference, and
- causation.

Question 6

Conversion

Answer 6

To establish a prima facie case for conversion, the plaintiff must show
- an act by the defendant that INTERFERES with the plaintiff’s possession that is SERIOUS ENOUGH in NATURE or CONSEQUENCE to warrant that the defendant pay the full value of the chattel,
- intent to the thing that brings about the interference, and
- causation.

Question 7

Trespass to land

Answer 7

To establish a prima facie case for trespass to land, the plaintiff must show a PHYSICAL INVASION of land and causation.

Question 8

Nuisance

Answer 8

To establish a prima facie case of nuisance, the plaintiff must show a substantial and unreasonable interference with use and enjoyment of property.

Question 9

Self-defense (defense to intentional torts)

Answer 9

When a person REASONABLY BELIEVES they are being or about to be attacked, they may use such force AS REASONABLY NECESSARY to protect against injury

Question 10

Defense of others (defense to intentional torts)

Answer 10

Tort is in fact being committed or about to be committed on third person

Question 11

Defense of property (defense to intentional torts)

Answer 11

REASONABLE BELIEF that tort is being or about to be committed on property. request to DESIST or leave must first be made, unless it would clearly futile or dangerous

Question 12

Shopkeeper’s privilege (defense to intentional torts)

Answer 12

Shopkeeper has privilege to detain suspected shoplifter for investigation if:
- there is REASONABLE BELIEF as to fact of theft
- detention is conducted in REASONABLE manner and only NONDEADLY force is uSed
- detention is only for REASONABLE period of time and ONLY for purpose of making investigation

Question 13

Express consent (defense to intentional torts)

Answer 13

Defendant not liable if plaintiff expressly consented unless:
- defendant knew of and took advantage of mistake
- fraud going to an essential matter
- consent was obtained by duress

Question 15

necessity (defense to intentional torts)

Answer 15

Applies only to property torts! Public necessity is absolute defense if for public good. Private necessity: defendant is privileged, but pays actual damages

Question 16

Duty of care

Answer 16

A person has a general duty to all foreseeable plaintiffs to conform to a standard of reasonable care.

Question 17

Firefighter’s rule

Answer 17

Firefighters and police officers barred from recovering from injuries caused by inherent risks of their job

Question 18

Professionals’ duty of care

Answer 18

Professionals required to possess the KNOWLEDGE and SKILL of average member of profession (not a reasonable professional standard!)

Question 19

Unknown trespassers

Answer 19

No duty to unknown trespassers

Question 20

Known trespassers

Answer 20

For known trespassers, land possessor must warn or make safe any conditions that are artificial, highly dangerous, concealed, and known to possessor (“all known, manmade death traps”)

Question 21

Licensees

Answer 21

For licensees (who enter land with permission for their own purpose or business, e.g. social guests), land possessor must warn or make safe any conditions that are concealed, and known to possessor (“known traps”)

Question 22

Invitees

Answer 22

For invitees (who enter land for purpose connected with business of land possessor or when land is held open to public, land possessor must warn or make safe any dangerous conditions that are:
- concealed, and
- known to possessor or could have been discovered by reasonable inspection (“reasonably knowable traps”).

An invitee will lose invitee status if they exceed the scope of the invitation.

Question 23

Attractive nuisance doctrine

Answer 23

Landowners have duty to exercise ORDINARY CARE to avoid REASONABLY FORESEEABLE risk of harm caused by DANGEROUS ARITIFICIAL conditions. Plaintiff must show:
- dangerous condition that owner is or should be aware of
- owner knows or should know children might trespass
- condition is likely to cause injury
- expense of remedying is slight compared to magnitude of risk

Question 24

Negligence per se

Answer 24

Alternatively, the standard in a negligence case may be establish by proving the applicability of a criminal statute, which would replace the common law standard of care. For the statutory standard to apply, the plaintiff must show that they are in the class intended to be PROTECTED by the statute and that the statute was intended to prevent the kind of HARM that plaintiff suffered.

If established, directed verdict MAY NOT be given to defendant.

Question 25

Affirmative duties to act

Answer 25

• special relationship, such as common carriers, innkeepers, shopkeepers, etc
• if you have negligently or innocently placed person in danger
• if you assume a duty by beginning to aid (but see Good Samaritan statutes)
• duty to prevent third person, if one has ability and authority to control and knows/should know that person is likely to commit acts requiring exercise of control.

Question 26

To show breach, look to:

Answer 26

• custom or usage
• violation of statute
• res ipsa

Question 27

res ipsa loquitur

Answer 27

Plaintiff must show that:
- accident is a type which would not normally occur unless someone was negligent
- negligence is probably attributable to defendant

Question 28

Proximate causation

Answer 28

Outcome a foreseeable risk associated with breach, without superseding force that breaks chain of causation.

Question 29

Common foreseeable intervening forces

Answer 29

• medical malpractice
• negligence of rescuers
• protection or reaction forces to defendant’s conduct, including efforts to protect person or property
• disease or accident substantially caused by original injury
• others, including negligent acts, crimes, and intentional torts of third persons and acts of God

Question 30

Merged causes/substantial factor

Answer 30

When several causes bring about injury and any one alone would be sufficient, defendant’s conduct is a cause in fact if it was a substantial factor

Question 31

Unascertainable causes

Answer 31

When one of two acts caused the injury but it is not known which one (Summers v. Tice), burden of proof shifts to defendants and each must show their negligence was not the cause.

Question 32

Damages

Answer 32

Plaintiff may recover for all damages, past present, and prospective, including economic damages (e.g. medical expenses), and noneconomic damages (pain and suffering). A plaintiff suffering physical injury may also recover for any emotional distress resulting from injury.

Question 33

Near miss

Answer 33

Plaintiff may recover for negligent infliction of emotional distress if they were in the “zone of danger” and suffers physical symptoms of distress

Question 34

Bystander

Answer 34

Plaintiff may recover for negligent infliction of emotional distress in cases where plaintiff was closely related to injured party (spouse, parent or minor child), was present at scene and personally observed/perceived event

Question 35

Eggshell plaintiff rule

Answer 35

Defendant liable for all damages, even if extent/severity was unforeseeable.

Question 36

Assumption of risk

Answer 36

Plaintiff may be denied recovery if they knew of risk and voluntarily assumed it. Knowledge of risk may be implied if ordinary knowledge.

Certain risks may not be assumed, e.g. common carriers, statute designed to protect a class, situations involving fraud, force or emergency.

Question 37

Joint and several liability

Answer 37

Plaintiff can recover all their damages from one of multiple joint tortfeasors, even if they are liable for a small percentage of total damages. But tortfeasor may seek indemnification (vicarious liability and non-manufacturers in SL) and contribution

Question 38

Strict liability for animals

Answer 38

Owners are SL to licensees and invitees for injuries caused by wild animals.

Owners are SL for injuries caused by domestic animals with dangerous propensities not common to species, and for REASONABLY FORESEEABLE damage done by trespassing animals.

No SL for trespassers

Question 39

Strict liability for abnormally dangerous activities

Answer 39

Activities are abnormally dangerous if they create a foreseeable risk of serious harm even when reasonable care is exercised and the activity is not common in the particular community

Question 40

Strict liability for products liability

Answer 40

• defendant must be merchant
• product must be defective (manufacturing, design, or information)
• product must not have been substantially altered since leaving defendant’s control
• plaintiff must be making foreseeable use of product at time of injury

Question 41

Manufacturing defect

Answer 41

Product emerges from manufacturing different than more dangerous than properly made counterparts

Question 42

Design defect

Answer 42

Plaintiff shows that
- product was not SAFE for its intended use and
- defendant could have made product safer, without SERIOUS IMPACT on product’s utility or price (feasible alternative).

Question 43

Information defect

Answer 43

Manufacturer failed to give ADEQUATE instructions or warnings of risks involved.

For prescription drugs and medical devices, warnings to learned intermediaries usually suffice.

Question 44

Respondeat superior (definition)

Answer 44

Employers are vicariously liable for tortious acts committed by their employee if the tortious acts occur within the scope of the employment relationship

Question 45

Independent contractors

Answer 45

The hiring party will not be vicariously liable for tortious acts of independent contractor, except for nondelegable duties, like the duty to keep its premises safe for consumers.

Question 46

Factors suggesting IC rather than employee

Answer 46

• employment for short or definite period
• employment is a personal task rather than for business
• compensation is task-based rather than time-based
• parties did not believe arrangement to be employer-employee relationship

Question 47

Frolic

Answer 47

Employers not vicariously liable if employee made a SUBSTANTIAL deviation in time/area (frolic)–more than a minor deviation from employer’s business

Question 48

Respondeat superior for intentional torts

Answer 48

Intentional torts by employees is usually not within scope of employment unless:
- employee is furthering the business of the employer
- force is authorized by employment, e.g. bouncer
- friction is generated by employment, e.g. bill collector

Question 49

Public nuisance

Answer 49

An act that UNREASONABLY INTERFERES with the health, safety, or property rights of the community, e.g. using building for criminal activities.

Question 50

Defamation

Answer 50

Defamation is a
- false
- defamatory statement
- that specifically identifies plaintiff
- with fault on the part of the defendant
- published to third party
- that causes damages to plaintiff’s reputation

Question 51

Public figures

Answer 51

Public figures must prove actual malice (knowledge that the statement was false or reckless disregard as to whether it was false).

For limited public figures, this test only applies if the statement relates to the reason they are a public figure.

Private persons must prove negligence if it’s a matter of “public concern” (based on content, form, and context).

Question 52

Damages (libel)

Answer 52

Damages are presumed for libel (defamation in permanent form).

Question 53

Damages (slander)

Answer 53

Damages must be proven for slander (spoken defamation), unless it falls under slander per se:
- adversely reflect on plaintiff’s business or profession
- state that plaintiff committed a serious crime (CIMT)
- impute that the plaintiff engaged in serious sexual misconduct
- state that the plaintiff has a loathsome disease

Question 54

Appropriation

Answer 54

UNAUTHORIZED use of plaintiff’s name or picture by defendant for commercial advantage

Question 55

intrusion into affairs or seclusion

Answer 55

Intrusion into PRIVATE things which would be HIGHLY OFFENSIVE to reasonable person

Question 56

false light

Answer 56

attributes to the plaintiff views they do not hold or actions they did not take to the public at large, which is highly offensive to a reasonable person

Question 57

publication of private facts

Answer 57

Public disclosure of private information about the plaintiff which are HIGHLY OFFENSIVE to a reasonable person.

Question 58

Commercial seller in SL

Answer 58

A commercial seller who places a product in the stream of commerce may be strictly liable in tort for injuries caused by a defective product. Plaintiff must show that defendant is a commercial supplier, production or sale of a product that was defective when it left defendant’s control, actual and proximate causation, and damages

Question 59

Consumer expectation test

Answer 59

In a SL case for a manufacturing defect, the defendant will be liable if the plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect.

Question 60

Government safety standards (SL)

Answer 60

A product’s noncompliance with gov’t safety standard establishes that it is defective while compliance with safety standards is evidence (but not conclusive) that the product is not defective

Question 61

Absolute privilege (defamation)

Answer 61

• between spouses
• made during judicial proceedings
• by legislators during proceedings,
• by federal executive officials in “compelled” broadcasts

Question 62

Qualified privilege (defamation)

Answer 62

A qualified privilege exists where the recipient has a LEGITIMATE INTEREST in the info and it is REASONABLE for the defendant to make the publication. Because it is qualified, it may be lost through abuse, like if not within the scope of privilege or was made with malice.

Defendant bears burden of showing privilege exists. If defendant establishes privilege, plaintiff bears burden of proving it was lost through abuse.

Question 63

Defamation (fact or opinion)

Answer 63

The defamatory statement must be a statement of fact to be actionable.

A statement of opinion may be actionable if it appears to be based on specific facts and an express allegation of those facts would be defamatory.

Whether a published statement is fact or opinion depends on the circumstances surrounding the publication and the nature of the words used. Generally, the broader the language, the less likely it will be interpreted as a statement of fact or an opinion.