Tort Essays

Question 1

Statutory Standards typically establish the level of care necessary to avoid a finding of negligence. Thus,

Answer 1

“an actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actors conduct causes, and if the accident victim is within the class of persons the statute is designed to protect. Restatement (Third) of Torts

However, an actor is negligent when he or she “does not exercise reasonable care under all the circumstances.

Ex: speed limits are established for normal driving conditions, not hazardous conditions caused by poor weather.

Compliance with a statute does not establish freedom from fault.

Question 2

Subsequent medical malpractice

Answer 2

An actor is liable for those harms that are a foreseeable consequence of his negligence.

Courts have routinely found that subsequent medical malpractice is within the scope of the risk created by a tort defendant.

“If the negligent actor is liable for another’s bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other’s injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner.

Liability typically attaches even when the medical services rendered “cause harm which is entirely different from that which the other had previously sustained . . . so long as the mistake or negligence is of the sort which is recognized as one of the risks which is inherent in the human fallibility of those who render such services.

Question 3

res ipsa loquitur

Answer 3

permits the trier of fact to infer that the harm suffered by the plaintiff was caused by negligence of the defendant when:

(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.

Restatement (Second) of Torts

Question 4

res ipsa loquitur is commonly used in

Answer 4

actions against medical providers when the patient suffers an unexplained injury and the evidence establishes that the risk of such an injury can be largely eliminated when reasonable care is used. If for example “the evidence shows that a particular adverse result of surgery is totally preventable when surgeons exercise reasonable and customary care, then res ipsa is appropriate in the patient’s suit against the surgeon.”

Question 5

In Joint and severally liability

Answer 5

each of the actors is liable for the full amount of the plaintiff’s indivisible injury

Question 6

An actor is subject to liability to another for battery if:

Answer 6

(a) he acts intending to cause a harmful or offensive contact with the person and (b) a harmful or offensive contact results.

Question 7

Intent, for purposes of establishing battery, means:

Answer 7

either that “the actor desires to cause the consequences of his act” or that he “knows that the consequences are certain, or substantially certain, to result from his act.

Question 8

A contact for the purposes of batter may not be harmful, but a contact can also constitute battery if it is offensive. “A bodily contact is offensive if:

Answer 8

it offends a reasonable sense of personal dignity.”

Question 9

Consent is:

Answer 9

a “willingness in fact for conduct to occur”

is a defense to battery.

Question 10

Consent may be manifested by:

Answer 10

action or inaction and need not be communicated to the actor. Thus, if words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.

Question 11

In order to recover for injuries sustained because of a manufacturing defect, the P:

Answer 11

need not show that the manufacturer was negligent. The manufacturer is strictly liable whenever “the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.

Question 12

“eggshell skull” plaintiff

Answer 12

When an actor’s tortious conduct causes harm to a person that, because of a preexisting physical or mental condition or other characteristics of the person, is of a greater magnitude or different type than might reasonably be expected, the actor is nevertheless subject to liability for all such harm to the person.

Question 13

Thus, a P with an eggshell skull who suffered injuries different from or greater than those a normal victim would suffer

Answer 13

is entitled to recover fully for his injuries

Question 14

Intent in battery

Answer 14

a defendant intentionally causes such a contact if he “acts with the desire to bring about that harm” or engages “in action knowing that harm is substantially certain to occur.”

Question 15

In a negligence action the plaintiff must show:

Answer 15

that the D owed the P a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others, that the defendants conduct fell below the applicable standard of care, and that the defendant’s conduct was both the cause in fact and the proximate cause of the playoffs injuries.

In determining whether the defendants conduct fell below the standard of care, the jury would measure that conduct against the actions of a reasonable, prudent person engaged in a like activity.

Question 16

A reasonable prudent person takes:

Answer 16

appropriate precautions to avoid foreseeable risks; in measuring whether a particular precaution was warranted, the jury weights the burden of taking such precautions against the gravity of the risk and the likelihood that it will eventuate.

Question 17

Vicarious liability

Answer 17

An employer is vicariously liable for the tortious actions of his employee that are within the scope of the tortfeasor’s employment.

Question 18

Custom is relevant in a negligence action, but it is not determinative, the P may succeed if she can establish:

Answer 18

that the cost of adding (the security measure) was relatively modest in relation to the risk of injuries.

Question 19

a tort defendant takes his victim as he finds him.

Answer 19

The P with an eggshell skull who suffers damage greatly in excess of those that a normal victim would suffer thus is entitled to recover fully for his injuries.

Question 20

False imprisonment

Answer 20

An actor is subject to liability to another for false imprisonmetn if (a) he acts intending to confine the other or a third person within the boundaries fixed by the actor, and (b) his act directly or indirectly results in such a confinement of the other , and (c) the otters is conscious of the conferment or his harmed by it.

Confinment need not be physical, and it “need not be stationary.”

The individual confined is not required to endanger his person through escape efforts. The requisite intent to confine can be show through either motivation or knowledge.

Question 21

In a negligence action, a plaintiff must show:

Answer 21

that the defendant owed the P a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others, that the defendant’s conduct fell below the applicable standard of care, and that the defendants conduct was both the cause in fact and the proximate cause of the plaintiff’s injuries.

Question 22

When may a plaintiff recover for emotional harm?

Answer 22

In virtually all states, a plaintiff who is within the zone of danger created by the defendant and who suffers a physical manifestation of emotional distress occasioned by a threatened injury may recover.

Some jx disallow recovery unless the plaintiff was herself within the zone of danger.
A larger group permits recovery if the plaintiff was closely related to the victim, was located near the scene of the accident, and suffered shock resulting from “the sensory and contemporaneous observance of the accident.

In virtually all jx, emotional distress must result from sensory and contemporaneous observance of the accodmet outset, not the receipt of news relating to the accident.

Question 23

Universities and Landlords have a duty to

Answer 23

take reasonable precautions to protect tenants against foreseeable attacks.

Question 24

There is no duty to act absent a special relationship, however, there is a duty when the actor:

Answer 24

takes charge of another who is helpless adequately to aid or protect himself, he is subject to liability to the other for bodily harm caused by:

• =(a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or
  (b) the actors discontinuing aid or protection, if by doing so he leaves the other in a worse position than when the actor took charge of him.

Question 25

Tarasoff - duty of a psychotherapist

Answer 25

Today, in most courts, a psychotherapist who fails to warn an intended victim against whom her patient has made a credible threats of physical violence may be found liable for that victims injuries. Many courts have also followed Tarasoff in permitting recovery either (1) when the therapist believed that the patient posed a real risk to the specified victim or (2) when the therapist negligently failed to take the threat seriously.

Question 26

Intervening acts

Answer 26

Intervening actors or events that produce harm different unkind from that which one would normally anticipate may break the chain of causation and lead a court to conclude that the defendant’s acts are not the proximate cause of the plaintiff’s injury.

In evaluating, whether intervening acts break the chain of causation, courts typically analyze both their foreseeability and their degree of dependence on the defendant’s negligence.