Short Questions

Question 1

What is the duty owed to a licensee by a landowner in a jurisdiction following traditional liability rules for landowners and possessors of land?

Answer 1

Warn of or make safe known dangerous conditions on the land of which the licensee is not aware. The duty to inspect dangerous conditions on the land is only owed to an invitee.

Question 2

What are the affirmative duties to act?

Answer 2

One who gratuitously acts for the benefit of another is then under a duty to act like an ordinary, prudent, reasonable person and continue the assistance

Question 3

Attractive nuisance: Do you require to show that the child was lured onto the property by the attractive nuisance?

Answer 3

No, you just need to proof: (i) there is a dangerous condition present on the land of which the owner is or should be aware (ii) the owner knows or should know that young persons frequent the vicinity of this dangerous condition, (iii) the condition is likely to cause injury, i.e., is dangerous, because of the child’s inability to appreciate the risk, and (iv) the expense of remedying the situation is slight compared with the magnitude of the risk.

Question 4

Attractive nuisance: Do you require to show that the child was lured onto the property by the attractive nuisance?

Answer 4

No, you just need to proof: (i) dangerous condition present on the land of which the owner is or should be aware (ii) owner knows or should know that young persons frequent the vicinity of this dangerous condition, (iii) the condition is likely to cause injury, i.e., is dangerous, because of the child’s inability to appreciate the risk, and (iv) the expense of remedying the situation is slight compared with the magnitude of the risk.

Question 5

A Intents to assault B, but then end up doing a battery on C. Is A liable for what?

Answer 5

A is liable for battery on C. There is no attempt of assault on B. There is no tort liability for an attempted assault

Question 6

Shopkeeper’s privilege: is the shopkeeper required to notify the police?

Answer 6

A shopkeeper is not required to notify the police in a reasonable amount of time to avoid liability for false imprisonment when detaining a suspect for shoplifting. He only needs: 1. Reasonable belief that a crime has been committed 2. Detention for a reasonable time 3. Detention in a reasonable manner

Question 7

Intentional infliction of emotional distress requires physical symptons?

Answer 7

Nope, only emotional distress is required Just: (1) Extreme and outrageous conduct act; (2) intent or recklessness; (3) causation; (4) damages

Question 8

is concussion damage to land a trespass?

Answer 8

No, trespass requires a physical invasion. Vibrations, noises, smells, and other non physical invasions are nuisances

Question 9

Force may not be used by __________.

1. a property owner to defend property from tortious interference
2. a citizen in effecting a misdemeanor arrest
3. a landowner to regain real property after being tortiously dispossessed
4. an owner of chattel to recapture the chattel

Answer 9

A landowner may not use force to regain real property after being tortiously dispossessed.(no self-help solutions)

An owner of chattel may use force to recapture the chattel. (allowed when in hot pursuit, demand is required unless futile or dangerous, no applicable to 3rd innocent parties)

A citizen may use force to effect a misdemeanor arrest. (reasonable force only)

A property owner may use force to defend the property from tortious interference. (never deadly force)

Question 10

To assert the defense of property, a defendant using force against another may not:

1. Use force that may injure the other
2. Make a mistake about the right to use force
3. Use force against one with a privilege to enter the property
4. Use force without a request to desist

Answer 10

A defendant cannot assert the defense of property if she uses force against one with a privilege to enter the property (a privilege to enter, necessity, recapture of chattels, etc. supersedes the privilege of the owner to defend her property)

Force can be used to reasonable injury someone (never deadly)

Request of desisting is required only when is not futile or dangerous

A reasonable mistake is allowed as to the property owner’s right to use force in defense of property, where the mistake involves whether an intrusion has occurred or whether a request to desist is required.

Question 11

What are the “shopkeeper’s privilege” requirements?

Answer 11

1. reasonable belief as to the fact of theft
2. conduct the detention in a reasonable manner and;
3. detain the suspect for only a reasonable time.

Question 12

Guy buys ps4, lends it to a friend. Friends never gave it back. Can the owner forcefully remove him from his hands hurting him? Would it be a battery case?

Answer 12

No, the defense of recapture of chattels is limited by the circumstances of the original dispossession. When another’s possession of the owner’s chattel began lawfully, the owner may use only peaceful means to recover the chattel.

Force may be used to recapture a chattel only when in “hot pursuit” of one who has obtained possession wrongfully

Question 13

Shopper goes out to a store at the same time as another. He is stopped at the door, and requested to wait. He doesn’t complain and the guard seizes him and shows him the handcuffs. Assault?

Answer 13

The security guard acted reasonably under the shopkeeper’s privilege. The shopper here can establish a prima facie case because the guard’s pulling out the handcuffs and reaching for the shopper’s arm created a reasonable apprehension of an immediate offensive contact, and the guard intended to create this apprehension so that the shopper would willingly step to the side to allow his bags to be checked. However, the store could raise the defense of recapture of chattels if the guard reasonably believed that the shopper was a shoplifter. This defense, which allows the property owner (or his agent) to use reasonable force or the threat of force to recapture his chattels from a tortfeasor who has stolen them, has a specialized application in the shopkeepers’ privilege to reasonably detain individuals whom they reasonably believe to be in possession of shoplifted goods. Although the privilege usually applies as a defense to a false imprisonment action, it is equally applicable as a defense to other intentional torts

Question 14

Teenager jumps the fence to remove baseball. Vicious dogs bite him. Is the owner of the dog liable for the injuries?

Answer 14

The landowner may not intentionally use a vicious dog to protect only his property. One may use only reasonable force to defend property. A landowner may not use force that will cause death or serious bodily harm

Question 15

Motorist leaves car in parkway for emergency. Landowner arrives and pushes the car away into the road, damaging him. Liable?

Answer 15

The motorist can recover against the landowner because the privilege of private necessity applied.

A person may interfere with the real or personal property of another when the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and the threatened injury is substantially more serious than the invasion that is undertaken to avert it.

Question 16

Driver without a heard condition history has a heart attack, crosses a red light while in distress and hits a speeding car. Can the other car’s owner sue the driver for negligence?

Answer 16

No, the D didn’t have a prior history of heart trouble. While drivers owe a duty of care to other drivers on the road, a driver would not be deemed to have breached that duty if he had a surprise heart attack while driving, given that he had no history of heart trouble

Even if the Driver violated a statute (he crossed against the red light), compliance with the statute was beyond his control

Question 17

Do you require a civil penalty for a statutory standard of care?

Answer 17

The statute needs to provide a criminal penalty, not a civil one. If there was a Civil one then it would not be a common law case. If the statute in question provides for a civil remedy, the plaintiff will sue directly under the statute

Question 18

Driver drives without a license, and drunk friends swirls his car to hit somebody. Is the driver liable?

Answer 18

No, even if there is a violation of the statute, the violation creates a presumption of duty and a violation of said duty. The causation element still needs to be shown to negligence to exist, and therefore since there was an superseding cause (the drunk friend) the driving without a license was not a proximate cause for the injuries

Question 19

Pedestrian is hit by both car and truck. Pedestrian is at fault 60%, Car 10%, and truck 30%. Total recovery is 100K If the jurisdiction has traditional joint liability and pure comparative negligence. How much the Pedestrian will recover if he sues one of the D?

Answer 19

He will recover 40% because this a jurisdiction that applies both joint and several liability and pure comparative negligence.

Question 20

For the doctrine of res ipsa loquitur to apply, the plaintiff must establish that _________.

Answer 20

The accident would not normally occur unless someone was negligent

Question 21

In terms of things a Defendant can argue as Defenses, what is the difference between a case based on negligence and a case based on strict liability?

Answer 21

Cases based on strict liability do not require that suppliers have an opportunity to inspect in order to make them liable. Only by being a commercial supplier of a defective product you will be liable.

In a negligence action, you need to show negligence, therefore if the supplier didn’t have the chance to inspect, you couldn’t show negligence

Question 22

What defense in regards of a supplier can a D manufacturer invoke in order to break causality in a strict liability case?

Answer 22

A D manufacturer can only argue that the retailer/supplier failed to take action after discovering a defect is a superseding cause.

Other defenses, like the failure to reasonable inspect are not relevant, since in a strict liability case the manufacturer may be liable for a manufacturing or design defect simply because it was a commercial supplier of a defective product.

Question 23

A backgammon player was upset after losing a match against the club champion. Rushing out of the club, he inadvertently grabbed the champion’s board, which looked very much like his own but which was much more expensive. The player left the backgammon board in the trunk of his car, as was his usual practice. During the night, the car was stolen and along with it, the champion’s expensive backgammon board.

In an action by the champion against the player to recover the value of the backgammon board, is the champion likely to recover?

Answer 23

Yes, because when the backgammon board was stolen along with the car, the player became liable for conversion of the champion’s chattel.

The champion will recover from the player for conversion. Conversion consists of (i) an act by defendant interfering with plaintiff’s right of possession in the chattel, (ii) intent to perform the act bringing about the interference with plaintiff’s right of possession, (iii) causation, and (iv) damages—an interference that is serious enough in nature or consequence to warrant that the defendant pay the full value of the chattel. Intent to trespass is not required; intent to do the act of interference with the chattel is sufficient for liability. Therefore, the player was guilty of conversion when he intentionally (i.e., volitionally) took the champion’s board, which resulted in its loss, even though the player did not intend to lose it or even realize that he had taken the property of another.

Question 24

True or false (regarding vicarious liability):

A defendant may be both vicariously liable and directly liable in the same action?

Answer 24

True:

A defendant may be both vicariously liable and directly liable in the same action. Vicarious liability is liability that is derivatively imposed. Because of the special relationship between the parties (e.g., employer-employee), if one person commits a tortious act against a third party, the other person can be liable to the third party for this act. This may be so even though the other person played no part in it, did nothing whatever to aid or encourage it, or indeed had done everything possible to prevent it. In addition to being vicariously liable because of the relationship between the tortfeasor and the defendant, a defendant may be liable for her own negligence in dealing with or supervising the tortfeasor.

Question 25

A state legislator reads on the legislature floor a defamatory newspaper article that makes a political rival look really bad. He knows the story is false.

Is he liable of defamation?

Answer 25

No, he is acting under an absolute privilege

As a state legislator, she was absolutely privileged to read the story into the record on the floor of the legislature. Under certain circumstances, a speaker will not be liable for defamatory statements because she is afforded an absolute privilege. Such a privilege is not affected by a showing of malice, abuse, or excessive provocation. Remarks made by either federal or state legislators in their official capacity during legislative proceedings are absolutely privileged.

Question 26

A minor league ballplayer hit a fly ball over the wall and out of the park during a game and struck a woman riding along the adjacent street on a bicycle. The woman sued the ballplayer for negligence. The woman alleged that the ballplayer had often hit balls out of the park and was aware that he had previously struck a car driving down the street.

Assuming the woman’s allegations are correct, is she likely to prevail?

Answer 26

The woman will not prevail because the ballplayer’s conduct did not breach any duty owed to the woman.

Whenever a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person engaged in the same or similar activity. If a defendant’s conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff. Here, there is some risk of injury to those outside the park based on previous occurrences. However, there are no precautions that the ballplayer could have undertaken that would not directly conflict with the requirements of his job and harm his career. On balance, the burden on the ballplayer to avoid any risk of injury far outweighs the likelihood of a ball hit by him clearing the wall and causing injury to someone. Hence, the ballplayer’s conduct did not create an unreasonable risk of injury to the woman and he did not breach a duty of care owed to her. Thus, she is not likely to prevail.Q