tort

Question 1

THE LAND POSSESSOR ALSO OWS A DUTY TO ANY 1) 2) 3) 4)

Answer 1

THE LAND POSSESSOR ALSO OWeS

A DUTY TO LICENSEES TO MAKE SAFE (negligence!)

ANY

1) KNOWN
2) NONOBVIOUS
3) DANGEROUS

4 ARTIFICIAL OR NATURAL CONDITIONS OF THE PROPERTY Social guests and visiting family normally fall in the licensee category . The classic examples of an invitee are business customers or individuals in a public area for the purpose that area is held open to the public. In addition to a land possessor’s normal duty to exercise reasonable care as to any activities of the land possessor onhis or her property

Question 2

The duty of a custodian of child

Answer 2

A custodian of child who fails to exercise control regarding the known p ropensity of that child generally vacariously liable for the child’s tortious behavior. If he does not know the child propernsity he would be liable for his own negligence in failing to control the child

Question 3

Damage must be

Answer 3

certain, foreseeable and will be mitigated Under the mitigation of damages doctrine, the failure of plaintif to take protective steps after suffering an injury or loss can reduce the amount of the plaintiff’s recovery.

Question 4

To prevail on IIED

Answer 4

To prevail on IIED , P must be 1) outrageous and extreme conduct 2)caused p’s severe emotional distress Conduct is extreme and outrageous if a reasonable person would find that it is offensive .

Question 5

To prevail on a defamation claim, P must prove *2020

Answer 5

1)defamatory statement 2)of Plaintiff 3)published to the third party Additionally if the defamation claim involves a matter of public concern 1 fault (for truth) (Given the constitutional protection of free speech,If the P is public office or public figure P must show D’s malice and if P is private figure P must show negligence for truth) In order to show malice, a plaintiff must show that (i) a defendant had actual knowledge that his statement was false, or (ii) a defendant acted with reckless disregard to the truth of his statement 2 falsity(not true)

Question 6

damages for defamation

Answer 6

Damages In the libel case (defamatory statement in a permanent form)and in slander per se case, damages are presumed and need not to be proved. because the statement was verbal (slander), the employee would also normally need to plead and prove special damages (pecuniary). The owner’s accusation fell into one of four categories of exceptions, however, which do not require special damages. Exceptions include allegations regarding (1) criminal activity, (2) misconduct or incompetence in the plaintiff’s trade or occupation, (3) sexual misconduct, and (4) the plaintiff’s having a “loathsome” disease.

Question 7

Intentional torts include

as to property

as to privacy tort

Answer 7

Intentional torts include assault, battery, trespass to land,trespass to chattel, conversion,false imprisonment, and intentional infliction of emotional distress. #A will allege trespass to land, trespass to chattel,

privacy tort

defamatory(the trugh is defense)

invation of provacy(FAID) (the truth is not a defense)

False light

widly spreads facts about the P whip laces the P in the false lights that would be offensive in reasonable person.

Appropeiation

use P’s name

Intrusion

intrudes into a private place

in a way that would be offensive to the reasonable person

Disclosure

widly disseminates private information aouut the P

that would be highly offensive to a reasonable person.

Question 8

An assault is

Answer 8

An assault is intentional creation of an reasonable apprehension of another of an imminent harmful or offensive contact.

Assaul requires more than just thereatening words alone.

don’t forget intentionl inflicet of emotional distress!

Assault battery infliemody

Question 9

A battery is

Answer 9

A battery is intentional infliction of bodily harm caused by offensive contact to another’s person or anything connected to her

Question 10

the intentional tort of conversion involves

Answer 10

the intentional tort of conversion involves

the interference with P’s right to the chattel “(distinguish from possession of),causation and damages

” The damages for conversion is the fair market value of the property at the time of conversion the difference between the torts being in degree of the interference.

Conversion requires that the interference with the plaintiff’s possession interest be so substantial in quality or nature that it justifies forcing the defendant to pay the full fair market value of the chattel, whereas a more minor interference constitutes trespass to chattel

Question 11

The intentional tort

1)

2)

3)

Answer 11

The intentional tort of trespass to chattel

The intentional tort of trespass to land

The intentional tort of conversion

Question 12

The intentional tort of trespass to chattel occurs

Answer 12

The intentional tort of trespass to chattel occurs

when there is interference with P’s right of possession

of personal property,intentionally, causation and damages

Interference could be damaging or taking it away.

The damages for tresspass to chattel are the cost of reparing the property.

“The tort constitutes the trespass of chattels with the interfirence is not so severe as to constitute conversion. ”

Question 13

The intentional tort of trespass to land occurs when

Answer 13

Tresspass to land is an interntional interference with one’s possession of his land

there is a physical invasion of plaintiff’s land and causation. (unlawful entry onto the land of another without consent)

No need to awareness of another’s land just intent to go where D is going is enough.

Simple trespass, destruction of realty dispossession encroachment nuisance

as a result of D’s exceeding the scope of the consent given and the intentional dumping, a trespass to land occurred.

Question 14

Difference between conversion and Trespass to chattel

Answer 14

the chattel is extremely damaged or the time frame of the interference is substantially enough that its owner has been substantially deprived of its use and value.

completely destroyed

Question 15

the intentional infliction of emotional distress requires

Answer 15

the intentional infliction of emotional distress requires outrageous conduct

that causes severe emotional distress to a plaintiff.

With intention to cause emotional distress or recklesness as to effect of D’s conduct.

Question 16

Transferred intent for an intentional tort occurrs when

Answer 16

Under the doctrine of transferred intent, the intent to commit an intentional tort, such as battery, against one plaintiff may be transferred to another plaintiff if the harm actually befalls the second plaintiff

Question 17

NEGLIGENCE (Prima facie case) to assert negligence claim ,

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Answer 17

to assert negligence claim ,

the P must show that D had a duty ,

breach of the duty , that is actual and proximate cause of the p’s injuries , and the P suffered damages. Under the majority, aD is liable to P within the foreseeable zone of danger

Negligence claim

Duty

standard of care

Actual Cause

Proximate Cause

Damages

Defense Contributory(comparative) negligence

Defense Assumption of risk

Conclusion

Question 18

standard of care

All D owe a duty to act as … all Professional owe duty to act as… Children owe a duty to act as…

Answer 18

All D owe a duty to act as a reasonable prudent person would act under the similar circumstances ( to all foreseeable plaintiffs) Standard of care – professional all Professional owe duty to act as as a professional of the same skill, knowledge, and care in the same community. Standard of care – children as reasonable person of like age intelligence education and experience however when a child engages in an adult activity she must conform to the same standard of care as an adult # like a duty of care in corporation law #a reasonable person would have foreseen a risk of injury to @ in his case, A reasonable prudent man would have foreseen that… could be harmed by the act

Question 19

breach is established when

Answer 19

breach is established when a person fail to meet the standard of care.

Question 20

Breach may be inferred if ..

Answer 20

Res Ipsa Loquitur Breach may be inferred if the P prove the accident (supana) 1)was the kind that ordinarily does not occur without negligence 2)was caused by an agent or instrumentality within the D exclusive control 3)not due to P’s action

Question 21

PRIVATE Nuisance the plaintiff must show that

Answer 21

the plaintiff must show that defendant’s activity has substantialy and unreasonably interefered with the plaintiff’s health, safety,use and enjoyment of property. Interference is substantial if its is offensive to an average person in the community interference is unreasonable if the injury to the P outweighs the utility of the D ‘s conduct.

Question 22

For a plaintiff to recover damages for a public nuisance

Answer 22

For a plaintiff to recover damages for a public nuisance ,the private einjury sufferred must be unique damage, not suffuered by the public at large.

Question 23

Can P emotional stress in negligence case where the underlying claim is damages to property

basic rule > zone of danger>bystander rule

Answer 23

Generally P cannot recover emotional distress without physical injury ( MBE when the underlying claim is damage to property due to negligence without any physical injury courts generally do not permit non ecoomic emotional distress)

Because P can show he has sufferred physical harm to his body, he will also be entitled to recover for his emotional distress as well

Exception

1 zone of danger

(1)D’s negligence put P in the zone of physical danger

such as a pool with sharks(have a look at)

(2)P’s emotional distress resulted in D’s action

even he didn’t suffered physical injury

2 see bystander rule

those who has close relationship can recover emotional distress even if he is not in the zone of danger

Question 24

BYSTANDER may recover for IIED if

1

2

3

4

5

Answer 24

BYSTANDER may recover for IIED if

1 D caused physical injury to another person

(even not in zone of danger)

2 the bystander was present

3 the bystander was close relative of the injured person

4 D knew 2 and 3

5 the bystander sufferred severe emotional distress

Question 25

For a negligence claim to succeed there must be both

Answer 25

Causation For a negligence claim to succeed there must be both actual (but for) and proximate causation, actual cause is established where but for the defendant conduct , the harm would not have occurred. Proximate cause exists when the p’s injury is a foreseeable result of the defendants’ conduct. (eggshell skull plaintiff)

Question 26

Vicarious liability

Answer 26

An employer is vicariously liable for the torts committed by their employees within the scope of the employment.

An employer is not generally liable for an employee’s intentional tort, unless

(i) the employee was motivated by a desire to further the employer’s interest,
(ii) the tort was authorized or ratified by the employer
(iii) the tort was part of the nature of the employee’s job.

Question 27

Vicarious liability

Answer 27

An employer is vicariously liable for the torts committed by their employees within the scope of the employment.

An employer is not generally liable for an employee’s intentional tort, unless

(i) the employee was motivated by a desire to further the employer’s interest,
(ii) the tort was authorized or ratified by the employer
(iii) the tort was part of the nature of the employee’s job.

Question 28

Generally an employer is not vicariously liable for the acts of independent contractor unless

Don’t forget

Answer 28

Generally an employer is not vicariously liable for the acts of independent contractors unless

1 engaging in a non delegable duty or

2 commit tort while engaged in an ultrahazardous activity.

Don’t forget negligence of Negligent hiring!

Patron has a chance of prevailing on the argument that the duty of ensuring that food cooked and served to restaurant to health and safety code specifications is a non-delegable duty.

One example of a nondelegable duty is the maintenance of taxicabs:

Question 29

Parents are vicariously liable for the tort committed by their children if

Answer 29

Parents are vicariously liable for the tort committed by their children if parents knew of the children’s violations or behavior and did nothing to prevent.

Question 30

Generally an principal is not liable for agent’s intentional tort except

Answer 30

agent’s intentional tort except 1 authorized by principal’s 2 natural from the nature of the employment 3 motivated by the desire to serve the principal’s

Question 31

Generally an principal is not liable for the acts of independent contractors except when

Answer 31

Generally an principal is not liable for the acts of independent contractors except when 1 commits tort while engaged in ultrahazardous activity 2 the principal hold out the independent contractor with the appearance of agency and thus the principal will be estopped.

Question 32

commercial seller who places … can be liable to …

Answer 32

commercial seller who places a defective product into the stream of commerce can be liable to all foreseeable plaintiffs. A product can be defective due to a manufacture defect, warning defect, and design defect. The product was actual and proximate cause for the injuries suffered by p. manufacturing defect ; the product is dangerous beyond the expectation the defect must have existed at the time the product left the defendant’s control design defect ; a less dangerous modification or alternative was economically feasible Warning defect; a product must have clear and complete warning

Question 33

A product liability claim may be brought by a P under multiple different theories 1) 2 3) 4) 5

Answer 33

intent

negligence

strictliability (ultrahazadous activity)

implied warranty

express warranty

Question 34

strict liability 3types of defect

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Answer 34

1 manufactU defect 　（！ultrahazadous も忘れない）

the product is dangerous beyond the expectation of ordinalry consumer

2 design defect

a less dangerous modification was economical feasible

3 inadequate warning

a product must have clear and complete warning.

Strict Liability claim

Commercial supplier

Manufacturing Defect

Design Defect

Warning Defect

Actual Cause

Proximate Cause

Damages

Defense Contributory (Comparative)negligence Assumption of risk

https://lawshelf.com/coursewarecontentview/liability-and-defenses-to-products-liability/

Coclusion

Question 35

Ultrahazardous activity is …

don’t forget when to consider if strict liability is theme

Answer 35

ltrahazardous activity is an activity

that imposes severe risk of harm

that cannot be made safe

and uncommon in the community,

Question 36

To be recoverable,damages must be 1caused

Answer 36

To be recoverable,damages must be 1caused by the tortious conduct 2certain and 3 foreseeable at the time of and 4 plaintiff must take reasonable steps to mitigate the damages.

Question 37

Incidental damages are… Consequential damages are …

Answer 37

Incidental damages are damages that are the natural result of a breach Consequential damages are damages specific to a particular plantiff. To recover for consequential damages , the damages must be forseeable at the time of

Question 38

tortfeasers

Answer 38

plaintiff can recover from defendants in joint and several liability. IMDEMNIFICWTION P1 would be entitled to indemnification from the mechanic for any amount the car owner must pay to the P.

Question 39

he will entitled to punitive damages if …

Answer 39

if P can demonstrate malicious and reckless conduct by D he will entitled to punitive damages,

Question 40

the restitutionary remedies

Answer 40

In the interest of justice, court may use restitution to avoid unjust enrichment on B if he does not pay. The following elements have to be met 1 conferred benefit requested by b 2 b would be unjustly enriched 3 reasonable expectation of payment

Question 41

PURE COMPARATIVE NEGLIGENCE

Answer 41

P’s failure to exercise a relevant degree of care for his own safety reduces of recovery. but not absolutely bar(distinguish it from contributory negligence and assumption of risk)

Question 42

CN deprives a P from damages when

Answer 42

TORII HA BAR contributory negligence CN deprives a P from damages when S contributes to the legal cause of injuries by failing to exercise reasonable care for p’s own safety. At common law CN is a completely bar to recoverty In pure comparative negligence jurisdiction it reduces the recovery of damages by the proportion O’s fault bears to the total harm

Question 43

For assumption of risk to apply the buyer

Answer 43

P is absolutely denied recovery if

1) P knew and asppreciated the particular risk and
2) P encountered the risk voluntarily,

_(_If P act in emergency his act is not voluntary)

defense for strict liability tort(with conparatie negligence)

not defense for intentional tort

Question 44

A defendant is permitted to use

Answer 44

A person may use reasonable force to defense another when the person believes that the other is in danger of immediate bodily harm

The force used must be proportionate to the threat.

D used reasonable non deadly force to defend A

Question 45

negligence causation damage

Answer 45

Negligence requires duty, breach, causation, and damages.

standard of care (reasonably prudent person)

The driver had a duty to drive with ordinary care, and breached that duty by sideswiping a parked car and damaging the fire hydrant. Therefore, the issue here is causation. The driver was the cause-in-fact of the damage because but for the driver’s sideswiping of the man’s car, the car would not have overturned onto the hydrant and caused damage. Likewise, the driver is the proximate cause of the damage because the resulting damages were a foreseeable result of the driver’s negligence.

The unforeseeable manner in which the damage occurred does not relieve the driver of liability. Thus, the driver’s negligence is the actual and proximate cause of the city’s harm.

Question 46

express warranty exists when

Answer 46

express warranty exists when seller explicitly states the certain type of warranty Here, the fact give no indication that …

Question 47

merchantability

Answer 47

Marchantability the product must be a fair and ordinary usage

Question 48

Attractive nuisance doctrine

Answer 48

Attractive nuisance doctrine An owner or occupier will be liable for their failure to exercise reasonable care to protect trespassing child from physical harm caused by artificial conditions on the land 1) the condition is in a place where children are likely to trespass 2) the owner knows or should have known unreasonable risk of death or serious bodily harm 3) children would not realize the risk because of their youth 4) the burden of eliminating the danger are slight compared to the risk to the children. Social guests and visiting family normally fall in the licensee category . The classic examples of an invitee are business customers or individuals in a public area for the purpose that area is held open to the public. In addition to a land possessor’s normal duty to exercise reasonable care as to any activities of the land possessor onhis or her property THE LAND POSSESSOR ALSO OWS A DUTY TO LICENSEES TO MAKE SAFE ANY 1)KNOWN 2)NONOBVIOUS 3)DANGEROUS 4 ARTIFICIAL OR NATURAL CONDITIONS OF THE PROPERTY

Question 49

If two or more D’s tortious act combined to cause P’s ///

Answer 49

If two or more D’s tortious act combined to cause P’s indivisible injury

each torfeasor is jointly and severally liable for P’s injury.

any tortfeasor who pay more than he share of damages could claim the other parties the exess

but contribution is not allowed if he is intentional tortfeasor

Question 50

Defense to tort

AsuConpa

Answer 50

Assumption of the risk

D will argue that P assumed the risk by use of

For an assumption of risks defense to work the P must have knowingly and voluntarily assumed the risk of the activity involved.

comparative negligence

Failure of P to exercise relevant degree of care for his own safty reduces of recovery.(but not absolutely bar)

Because there is any facts to suggest that P was contributorily negligent, this defense will likely fail for D to assert.

Contributory negligence cannnot be a defense in strict liability!

Question 51

expression

N will likely not succeed on this claim of assaul because

There is no indication from the facts that

This indicates that

Question 52

tips

成立しない方も何の要件が欠けるから成立しないのか検討（比較問題）

battery to another person or something connected to her body

assault a mere word does not constitute an assault

Question 53

D is strictly liable for his puppy’s bite on the others if

Answer 53

The owner of domesticate animals is not strict liable for injury caused by the animal unless D knows of their dangerous propensities (such as D knows his dog has previously bitten someone)

The owner of wild animal is always strict liable for injury that arise from the danagerous propernsity of wild animals/