Themis Essay - Torts

Question 1

Strict Liability

Answer 1

A defendant engaged in an abnormally dangerous activity will be held strictly liable – without any proof of negligence – for personal injuries and property damage caused by the activity.

o Elements—absolute duty, breach, causation, damages, & defenses
o Abnormally dangerous activities
o Animals—wild and domestic (if owner knows of dangerous propensities)

Exam Tip 8: Strict liability focuses on the danger of the activity, regardless of how careful the defendant acts. If the activity is abnormally dangerous, a defendant will be held strictly liable for injuries.

Question 2

Products Liability

Answer 2

o Strict products liability
 Product defective when sold—manufacturing or design defect, and failure to warn
 Actual & Proximate Cause
 Damages & defenses

o Negligence—duty, breach, causation, & damages

Question 3

Defamation

Answer 3

o Defamatory language
o Of or concerning P
o Publication by D to a 3rd person
o Damage to P’s reputation
o Matters of public concern
 Falsity (private figure = negligence; public figure = malice)
 Fault

o Defenses—truth, consent, and absolute/qualified privileges
o Warranties—implied and express

Question 4

Invasion of Privacy

Answer 4

o Misappropriation
o Intrusion upon seclusion
o False light
o Public disclosure of private facts

Question 5

Intentional Torts

Answer 5

o False Imprisonment
o Trespass to Chattels
o Battery
o Conversion
o Assault
o Trespass to Land
o IIED
o Nuisance

Question 6

Landowner Duties

Answer 6

• Modern approach: a standard of reasonable care applies to all land entrants except trespassers
• Traditional approach: the standard of care owed to land entrants depends upon the land entrant’s status as an invitee, a licensee, or a trespass
  o Invitee – public invitee or business visitor (e.g., customer in a store)
  o Licensee – someone who enters with the land possessor’s permission or with a privilege (e.g., social guest)
  o Trespasser – someone who lacks consent or privilege to be on the land

Question 7

Children Duty

Answer 7

standard of care is that of a reasonable child of similar age, intelligence, and experience—unless the child is engaged in a high-risk activity characteristically undertaken by adults

Question 8

Attractive Nuisance

Answer 8

often arises when a trespassing child is injured by an artificial condition on the land

Question 9

Physical Characteristics Standard of Care

Answer 9

(e.g., blindness) and custom are taken into account
 Professionals – subject to a heightened standard of care

Question 10

Res Ipsa Loquitur

Answer 10

a doctrine that allows the trier of fact to infer the existence of a defendant’s negligent conduct in the absence of direct evidence of such negligence, is unlikely to be tested.

Question 11

Negligence Per Se

Answer 11

When a statute imposes upon any person a specific duty for the benefit or protection of others, a violation of the statute will constitute negligence per se.

Exam Tip 4: If there is a statute provided in the facts, you should always discuss Negligence Per Se.

a. Statute
1) Class of person:
In order for the statute to apply, the plaintiff must be in the class of people meant to be protected by the statute.
2) Type of Harm:
The plaintiff must also suffer the type of harm the statute intended to protect against.
3) Proximate Cause:
If the statute applies, the defendant will be liable to the plaintiff if his violation of the statute proximately caused harm to the plaintiff.

Question 12

Negligence - Causation

Answer 12

a. Cause in fact/actual cause
To prove actual causation, plaintiff must show that but for defendant’s act, plaintiff’s injury would not have occurred. If there are multiple causes, defendant will be a cause in fact if he was a substantial cause of plaintiff’s injury.

b. Proximate cause
The plaintiff must show that her injuries were the foreseeable result of defendant’s conduct.

c. Intervening cause
An intervening cause is an outside force/action that contributes to the plaintiff’s harm after the defendant’s act/omission has occurred. If the intervening cause is unforeseeable, it is a superseding cause and defendant’s liability will be cut off.

Exam Tip 6: There can be more than one intervening cause in an exam question. Address each intervening cause separately and analyze whether they are foreseeable or unforeseeable.

Question 13

Negligence Defenses

Answer 13

Exam Tip 7: Only discuss the defenses that apply, and if none apply, simply state this in your answer.

a. Contributory negligence
 In a contributory negligence jurisdiction, plaintiff’s negligence is a complete bar to recovery.
 In a pure comparative negligence jurisdiction, plaintiff’s negligence is not a complete bar to recovery, but her damages are reduced by proportion that plaintiff’s fault bears to the total harm.

b. Assumption of the risk
Plaintiff’s recovery may be barred if she voluntarily and knowingly assumed the risk of her behavior.

Question 14

Abnormally Dangerous Activity

Answer 14

An abnormally dangerous activity is one (1) with a high risk of harm, (2) that is not commonly found in the community, and (3) that has a risk that cannot be eliminated with due care.

Exam Tip 9: Be sure to address all three of the elements of abnormally dangerous activity in your analysis. Consider writing a separate paragraph for each element. Examples of abnormally dangerous activity include using explosives, fumigating, disposing of hazardous waste, and storage of chemicals.

a. Causation
To be liable, the abnormally dangers activity must be both the actual and proximate cause of plaintiff’s injury.

b. Damages
To recover damages, plaintiff must prove actual injury and not just economic loss.

c. Defenses
1) Assumption of the Risk
Plaintiff’s recovery may be barred if she voluntarily and knowingly assumed the risk of her behavior. Assumption of the risk is not the only defense, but it is the best defense.

Question 15

Wild Animals

Answer 15

Strict liability also applies to owners of wild animals or domestic animals if the owner knows of the dangerous propensities of the domestic animal.

Exam Tip 10: If a wild animal or domestic animal with dangerous propensities is involved, the analysis of causation, damages, and defenses is the same as abnormally dangerous activity.

Question 16

Products - Strict Products Liability

Answer 16

A defendant who is in the business of selling a commercial product may be strictly liable for a defective product causing foreseeable injuries to a plaintiff. To establish a prima facie case for strict products liability, the plaintiff must prove that defendant had an absolute duty as a commercial seller of the product, that defendant produced or sold a defective product, actual and proximate causation, and damages.

a. Causation
1) Actual causation
To be the actual cause of plaintiff’s injury, the product must have been defective when it left defendant’s control.
2) Proximate causation
To be the proximate cause of plaintiff’s injury, the defect causing plaintiff’s injuries must have occurred when the product was being used in an intended or reasonably foreseeable way. A defendant will still be liable if the plaintiff misuses the product and is injured if that misuse is foreseeable.
3) Damages
Plaintiff must also suffer personal injury or property damage.

b. Defenses
1) Contributory negligence
* In a contributory negligence jurisdiction, plaintiff’s negligence is a complete bar to recovery when the plaintiff’s fault consisted of unreasonably proceeding in the face of a known product defect.
* In a pure comparative negligence jurisdiction, plaintiff’s negligence is not a complete bar to recovery, but her damages are reduced by proportion that plaintiff’s fault bears to the total harm.

2) Assumption of the risk
Plaintiff’s recovery may be barred if she voluntarily and knowingly assumed the risk of her behavior.

Question 17

Absolute Duty

Answer 17

A defendant who is in the business of selling a commercial product—including manufacturers, distributors, and retail sellers—is under an absolute duty to provide a safe product.

Exam Tip 12: Discuss here whether defendant qualifies as in the business of selling a commercial product (as opposed to a casual or occasional seller of this particular product).

Question 18

Defective Product

Answer 18

A product is defective when, at the time of the sale or distribution, it contains a manufacturing defect, a design defect, or inadequate instructions or warnings (i.e., failure to warn).

Exam Tip 13: It is possible for a product to be defective based on more than one theory. You should discuss all defect theories that are raised by the facts.

Question 19

Manufacturing Defect

Answer 19

A manufacturing defect is a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. The test for the existence of such a defect is whether the product conforms to the defendant’s own specifications.

Question 20

Design Defect

Answer 20

• Depending on the jurisdiction, courts usually apply either the consumer-expectation test or the risk-utility test (or a hybrid of both tests) to determine whether a design defect exists.
• Under the consumer-expectation test, plaintiff must prove that the product is dangerous beyond the expectation of an ordinary consumer.
• Under the risk-utility test, the plaintiff must prove that a reasonable alternative design that is economically feasible was available to defendant, and failure to use that design rendered the product unreasonably unsafe.

Exam Tip 14: Look for facts in the exam question about the availability of alternative designs and the cost of these alternative designs.

Question 21

Failure to Warn

Answer 21

A failure to warn defect exists if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which could have been reduced or avoided by providing reasonable instructions or warnings.

Exam Tip 15: Read the exam facts carefully- the defendant might provide a warning about one type of harm, but not warn about the type of harm that actually occurred.

Question 22

Negligent Products Liability

Answer 22

Exam Tip 16: After you analyze strict products liability, you should always discuss negligent products liability. This analysis is the same as a typical negligence analysis and analyzes whether the defendant acted negligently in relation to the product.

Under a negligent products liability theory, a plaintiff must prove duty, breach, causation, and damages.

a. Duty
Who is owed a duty?
A duty of care is owed to all foreseeable persons that may be injured by a defendant’s failure to meet the reasonable standard of care. Under the majority view (Cardozo), a defendant is only liable to plaintiffs within the zone of foreseeable harm. Under the minority view (Andrews), a defendant owes a duty to everyone harmed.

b. Standard of care
The standard of care owed by defendant to plaintiff is that of a reasonably prudent person under the circumstances as measured by an objective standard.
Exam Tip 17: Apply the general standard of care to defendant unless a special standard of care applies (i.e., professional, physician, etc.) or there is a statute (negligence per se).

c. Breach
Defendant will be in breach of his duty to plaintiff if he fails to meet the applicable standard of care.

d. Causation, damages, and defenses

Exam Tip 18: The causation, damages, and defenses analyses for negligent products liability are the same as the analyses for strict products liability. To save time, you can cut/paste the causation, damages, and defenses analysis sections from your earlier strict products liability section or say, “see above.”

Question 23

Products Liability - Warranties

Answer 23

Products liability questions are lengthy. When you reach warranties, you quickly analyze express warranty (if applicable) and the two implied warranties.

a. Express warranty (if applicable)
An express warranty is a promise or guarantee made by the defendant about the product. If the product does not meet this warranty, the defendant has breached this warranty and plaintiff can recover damages.

b. Implied warranty of merchantability (always discuss)
Under the implied warranty of merchantability, a product that is sold is impliedly warranted to be reasonably useful and safe for average use.

c. Implied warranty of fitness for particular purpose (if applicable)
Under this implied warranty, if a seller knows or has reason to know of a particular purpose for which some item is being purchased by the buyer, the seller is guaranteeing that the item is fit for that particular purpose.

Question 24

Defamation

Answer 24

A plaintiff may bring an action for defamation if the defendant’s defamatory language is of or concerning the plaintiff, is published to a third party who understands its defamatory nature and damages the plaintiff’s reputation.

1. Defamatory Language
   To be defamatory, the language used must diminish the respect, esteem, or goodwill towards plaintiff.
2. Of or Concerning Plaintiff
   A reasonable person must believe that the defamatory communication refers to this particular plaintiff and holds him up to scorn or ridicule in the eyes of a substantial number of respectable members of the community.
3. Publication
   Publication of defamatory matter is its intentional or negligent communication to a third party.
4. Damage to Plaintiff’s Reputation
   General damages are presumed when the comments involve libel, which are written statements. However, they are not presumed when it involves slander, which are oral comments. Damages for slander per se are presumed when the comments involve the professional reputation, disease, crimes of moral turpitude, or unchaste behavior.
5. Constitutional Defamation Requirements

Question 25

Constitutional Defamation

Answer 25

The Constitutional defamation requirements apply if:
 The plaintiff is a public official/figure, or
 The plaintiff is a private individual, but the statement involves a matter of public concern.
Exam Tip 19: Be sure to explain why the plaintiff is a public official/figure or why the statement involves a matter of public concern (if the plaintiff is a private individual).

a. Falsity
The plaintiff (public figure/official or private individual and statement involving a matter of public concern) must also prove that the statement is false.

b. Fault
If the plaintiff is either a public official or a public figure, he is required to prove that the defendant acted with actual malice (i.e., either had knowledge that the statement was false or reckless disregard as to the truth or falsity of the statement).
If the plaintiff is a private individual and the defendant’s statement involves a matter of public concern, the plaintiff is constitutionally required to prove that the defendant acted with fault—either negligence or actual malice.
c. Damage to plaintiff’s reputation
Plaintiff must prove actual damages if he is a public figure/official or a private figure, but a matter of public concern is involved. If the plaintiff is a private figure and shows malice, he can recover punitive damages as well.

Question 26

Defenses to Defamation

Answer 26

Exam Tip 20: Only raise the defenses that apply.

a. Truth
Truth is an absolute defense.

b. Consent
Consent is an absolute defense as long as defendant did not exceed the scope of consent.

c. Absolute privilege
An absolute privilege can never be lost and is used for remarks during judicial or legislative proceedings, between spouses, or in required publications.

d. Qualified privilege
A qualified privilege is one affecting an important public interest, in the interest of defendant or a 3rd party, and it can be lost if the statement exceeds the scope of the privilege, or the speaker acted with malice.

Question 27

Misappropriation

Answer 27

Misappropriation is the unauthorized use of P’s name, likeness, or identity for D’s advantage (commercial or otherwise). Plaintiff must prove lack of consent and injury.

Question 28

Intrusion Upon Seclusion

Answer 28

An intrusion upon seclusion is defendant’s act of intrusion into plaintiff’s private affairs that are objectionable to a reasonable person. Note that no publication is required.

Question 29

False Light

Answer 29

To maintain an action for false light, plaintiff must prove that defendant published facts about plaintiff or attributed views/actions to plaintiff that place him in a false light and are highly offensive to a reasonable person.

Question 30

Public Disclosure of Private Facts

Answer 30

The public disclosure of private facts is actionable if the publication would be highly offensive to a reasonable person and is not of legitimate concern to the public.

Question 31

Mens Rea for Intentional TOrts

Answer 31

The requisite mental state for an intentional tort is established if the defendant acts intentionally—i.e., with the purpose of causing the consequences of his act or knowing that the consequence is substantially certain to result.

a. Children and the mentally incompetent
In most jurisdictions, a minor child or a mentally impaired individual may be liable for an intentional tort if they act with the requisite mental state.
b. Transferred intent
Transferred intent exists when (1) a defendant intends to commit an assault and instead commits a battery; (2) a defendant intends to commit a battery, assault, or false imprisonment against one person but instead commits the intended tort against a different person; and (3) a defendant intends to commit a battery (against person A) and instead commits an assault (against person B).

Question 32

Battery

Answer 32

Battery requires harmful or offensive contact (objective standard) with the plaintiff’s person (or anything connected to it), intent by defendant to cause the touching (transferred intent applies), and causation.

Question 33

Assault

Answer 33

Assault requires an act/threat (mere words not enough) placing the plaintiff in in reasonable apprehension of imminent harmful or offensive contact with his person, intent by defendant to place defendant in apprehension (transferred intent applies), and causation.

Question 34

IIED

Answer 34

IIED requires extreme and outrageous conduct by the defendant causing severe emotional distress to plaintiff and intent (transferred intent does not apply) by the defendant to cause distress.

Question 35

False Imprisonment

Answer 35

False Imprisonment is the intentional confinement/restraint of defendant (methods of confinement include physical barriers or force, threats, invalid use of legal authority, duress) for any amount of time. There must be no reasonable means of safe escape and actual damages are unnecessary if P was aware of confinement.

Shopkeeper’s Privilege (Defense): If a shopkeeper reasonably suspects plaintiff of stealing, he can detain the plaintiff for a reasonable amount of time in a reasonable manner.

Question 36

Defenses to Intentional Torts

Answer 36

1) Consent
Consent is a defense against intentional torts. However, it must be voluntary, and a defendant will be liable if he exceeds the scope of plaintiff’s consent.

2) Self defense
A defendant can use reasonable force against the plaintiff for the purpose of defending herself against the plaintiff’s unprivileged use of force if the defendant reasonably believes that the force is both necessary and proportionate to the plaintiff’s inflected or threatened force. Mistaken but reasonable is okay.

3) Defense of others
The general requirements are the same as the privilege of self-defense, except that the defendant’s purpose is to defend a third person from the plaintiff.

Question 37

Trespass to Chattels

Answer 37

Trespass to chattels is an interference with the plaintiff’s possession of her chattel, intent to perform the act that interferes with the possession (transferred intent applies), causation, and damages. Damages are limited to compensation for the loss in value or cost of repair of the property.

Question 38

Conversion

Answer 38

Conversion requires serious interference with plaintiff’s possession of her chattel, intent to perform the act that interferes with the possession (transferred intent does not apply), causation, and damages. The serious interference with plaintiff’s personal property results in damages for the full value of property.

Question 39

Trespass to Land

Answer 39

Trespass to land requires the physical invasion of another’s land and intent to enter the land or cause physical invasion (transferred intent applies).

Necessity (Defense)
 Private necessity allows a person to enter plaintiff’s land to protect her own person/property from harm; she is not liable for trespass but responsible for actual damages.
 Public necessity allows a person to enter plaintiff’s land to prevent an imminent public disaster; the person is not liable for damage if her actions were reasonable or she had a reasonable belief that necessity existed, even if initial entry was not necessary.

Question 40

Private Nuisance

Answer 40

is a substantial (offensive to a reasonable person) and unreasonable (balance the interests of the plaintiff and defendant) interference with another’s use or enjoyment of his land.

Question 41

Nuisance

Answer 41

 Private Nuisance is a substantial (offensive to a reasonable person) and unreasonable (balance the interests of the plaintiff and defendant) interference with another’s use or enjoyment of his land.

 Public Nuisance is an unreasonable interference with a right common to the general public.

1) Defenses
* Regulatory compliance is a partial defense if the defendant is following the law.
* Coming to the nuisance is generally not a defense but may be considered by the jury in determining whether the plaintiff can recover for the nuisance.
Exam Tip 22: When analyzing Private or Public Nuisance, be sure to balance the interests of the plaintiff in being free from the nuisance with the interest of the defendant in continuing his activities.

2) Remedies available are money and damages and injunctive relief

3) Abatement (eliminating the nuisance)
* Private Nuisance: Reasonable force is permitted to abate the nuisance; P must give D notice of the nuisance first and D must refuse to act before action can be taken.
* Public Nuisance: Absent unique injury, public nuisance may be abated only by public authority.

Question 42

Vicarious Liability

Answer 42

Generally, an employer is liable for the torts of an employee, but not for the torts of an independent contractor.

Exam Tip 23: The first issue to discuss in a vicarious liability analysis is whether the person who committed the tort is an employee or an independent contractor. This will be a fact-based analysis, and you can argue for both sides.
After you determine the status of the person who committed the tort, analyze the liability of the employer under an employer-employee relationship and/or an employer-independent contractor relationship.

Under the theory of vicarious liability, an employer is liable for the torts of an employee if the employee is acting within the scope of the employment (even if the employee commits an intentional tort). An employer will not be liable for negligence of their employees outside of the duties.

An employer is generally not liable for the negligence of an independent contractor. However, a defendant will be liable for the negligence of a contractor if the negligence involves a non-delegable duty or an inherently dangerous activity.

Question 43

Immunity

Answer 43

Traditionally, government entities, charities, and family members were immune from liability. Today, these immunities have been largely eliminated.