Tort MCQ

Question 1

Apparent consent

Answer 1

Apparent consent is a defense to battery when consent can be reasonably implied from the plaintiff’s conduct or from custom. However, consent is only a defense where the defendant’s conduct falls within the scope of the plaintiff’s consent.

Question 2

Inkeeper

Answer 2

In most jurisdictions, an innkeeper owes a duty to use ordinary care to protect its guests while they are on the premises. Evidence that the innkeeper complied with (or deviated from) community or industry custom is relevant to—but not conclusive on—the issue of negligence.

Question 3

traditional standard for res ipsa loquitur

Answer 3

Under the traditional standard for res ipsa loquitur, negligence is inferred if (1) the plaintiff’s harm would not normally occur unless someone was negligent, (2) the defendant had exclusive control over the thing that caused the harm, and (3) the plaintiff did nothing to cause the harm.

Question 4

pure comparative negligence

Answer 4

Under pure comparative negligence, a negligent plaintiff’s recovery is reduced by his/her proportionate share of fault. And if multiple defendants cause the plaintiff indivisible harm, several liability limits the plaintiff to recovering from each defendant the portion of damages that corresponds to his/her proportionate share of fault.

Question 5

modified (or partial) comparative negligence

Answer 5

Under modified (or partial) comparative negligence, recovery is reduced by the plaintiff’s percentage of fault and barred if it exceeds 50%. If multiple defendants cause the plaintiff indivisible harm, then several liability limits the plaintiff to recovering the portion of damages that corresponds to each defendant’s share of fault.

Question 6

Private Nuisance

Answer 6

Private nuisance is a substantial and unreasonable interference with the use and enjoyment of the plaintiff’s property. An interference is substantial if a normal person in the community would find the interference offensive, annoying, or intolerable—even if the plaintiff is not personally bothered by it.

Question 7

Third Party IIED

Answer 7

A defendant whose extreme and outrageous conduct has harmed a third party may be liable for intentional infliction of emotional distress if (1) the plaintiff contemporaneously perceived that conduct, (2) the plaintiff was closely related to the third party, and (3) the defendant knew of the plaintiff’s presence and that relationship.

Question 8

Proximate Cause

Answer 8

Proximate cause occurs when the plaintiff’s harm was a reasonably foreseeable consequence of the defendant’s conduct.

Question 9

Negligent Infliction of Emotional Distress

Answer 9

Negligent infliction of emotional distress (NIED) liability arises under the zone-of-danger theory when (1) the defendant negligently placed the plaintiff at risk of immediate bodily injury and (2) that risk caused the plaintiff serious emotional harm.

Question 10

Guest Statute

Answer 10

In most jurisdictions, automobile drivers owe a duty of ordinary care to guests (who ride free) and passengers (who pay money for the ride). But a minority of jurisdictions have enacted “guest statutes,” under which an automobile driver’s only duty to guests is to refrain from gross or wanton and willful misconduct.

Question 11

Negligence Per Se (minority approach)

Answer 11

Under the minority approach for negligence per se, a defendant’s violation of a statute or ordinance creates a rebuttable presumption (as opposed to a conclusive presumption) that the defendant breached a duty of care.

Question 12

Intentional Interference

Answer 12

Intentional interference with a contract requires proof that (1) a valid contract existed between the plaintiff and a third party, (2) the defendant knew of that contractual relationship, (3) the defendant intentionally and improperly interfered with the contract’s performance, and (4) that interference caused the plaintiff pecuniary loss.

Question 13

Third Party IIED

Answer 13

A defendant whose extreme and outrageous conduct has harmed a third party may be liable for intentional infliction of emotional distress if (1) the plaintiff contemporaneously perceived that conduct, (2) the plaintiff was closely related to the third party, and (3) the defendant knew of the plaintiff’s presence and that relationship.

Question 14

Public Figure IIED

Answer 14

A public figure may recover for intentional infliction of emotional distress based on the defendant’s publication if the defendant (1) acted in an extreme and outrageous manner, (2) intentionally or recklessly caused the public figure severe emotional distress, and (3) published a false statement of fact with actual malice.

Question 15

no affirmative duty to act

Answer 15

Although a defendant generally has no affirmative duty to act, such a duty arises when (1) the defendant’s conduct created a foreseeable risk of harm to the plaintiff or (2) the defendant and the plaintiff share a special relationship.

Question 16

Animals: Assumption of Risk

Answer 16

Assumption of the risk is a defense to strict liability claims based on injuries caused by wild or abnormally dangerous domestic animals when the plaintiff voluntarily engaged the animal despite knowing of its dangerous propensities.

Question 17

deadly force to defend a third party

Answer 17

A defendant may use deadly force to defend a third party when the defendant reasonably believes (1) the plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force on the third party, (2) the third party is subject to death, serious bodily harm, or rape, and (3) the defendant can prevent that harm only by immediate deadly force.

Question 18

Traditional Rule: Duty to Trespasser

Answer 18

A land possessor traditionally owes a duty of reasonable care to foreseeable land entrants. But no such duty is owed to unforeseeable land entrants (e.g., undiscovered or unanticipated trespassers).

Question 19

Traditional Rule: Duty to Licensee

Answer 19

A land possessor traditionally owes licensees (e.g., social guests) a duty to warn them about concealed dangers that are known or should be obvious to the land possessor.

Question 20

joint and several liability

Answer 20

If multiple defendants were negligent and any one of them could have caused the plaintiff’s harm, joint and several liability allows the plaintiff to recover even if it is impossible to prove which defendant actually caused the harm. But the plaintiff must first show that each of the defendants was negligent.

Question 21

pure comparative negligence joint and several liability

Answer 21

Under pure comparative negligence, a negligent plaintiff’s recovery is reduced by his/her proportionate share of fault. And if multiple defendants cause the plaintiff indivisible harm, joint and several liability allows the plaintiff to recover the total amount of damages from any defendant.

Question 22

Vicarious Liability Indemnification

Answer 22

An employer who is vicariously liable for a tort committed by its employee may be liable to the plaintiff for the harm caused by the employee’s tortious conduct. When the employee’s liability has been discharged by the employer, the employer can seek full compensation (i.e., indemnity) from the employee for its loss.

Question 23

Trespass to chattels

Answer 23

Trespass to chattels by intentional use of or intermeddling with the plaintiff’s chattel requires proof of actual damages through (1) actual harm to the chattel, (2) substantial loss of use of the chattel, or (3) bodily harm to the plaintiff.

Question 24

intentional misrepresentation

Answer 24

Liability for intentional misrepresentation arises when (1) the defendant knowingly or recklessly misrepresents a material fact with the intent to induce the plaintiff’s reliance and (2) the plaintiff reasonably relies on the misrepresentation and suffers pecuniary (monetary) loss as a result.

Question 25

Strict products liability defendant

Answer 25

Strict products liability is only imposed on commercial suppliers (i.e., persons who regularly manufacture, distribute, or sell products as part of their business)—not casual sellers (i.e., persons not in the business of selling the type of defective product that caused the plaintiff harm).

Question 26

Apparent consent

Answer 26

Apparent consent is a defense to battery when the defendant reasonably believed—based on the plaintiff’s conduct or custom—that the plaintiff actually consented to the contact. However, consent is not a defense if the defendant’s conduct exceeds the scope of consent.

Question 27

private necessity

Answer 27

Although a trespass is excused when it arises from private necessity—i.e., an intrusion that is, or reasonably appears to be, necessary to protect oneself, third parties, or property—the trespasser is still liable for actual damages caused by the trespass unless the entry was for the landowner’s benefit.

Question 28

profession’s applicable standard of care

Answer 28

Establishing a profession’s applicable standard of care—and a defendant’s deviation from that standard—typically requires expert testimony. But when the defendant’s negligence is so apparent that a lay person could identify it, expert testimony is not required.

Question 29

Trespass to land

Answer 29

Trespass to land occurs when a defendant intentionally enters—or causes something to enter—another’s land. The defendant need only have the intent to enter or cause a physical invasion of the land—not the intent to commit a wrongful trespass.