Tort MCQ Flashcards
Apparent consent
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.
Inkeeper
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.
traditional standard for res ipsa loquitur
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.
pure comparative negligence
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.
modified (or partial) comparative negligence
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.
Private Nuisance
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.
Third Party IIED
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.
Proximate Cause
Proximate cause occurs when the plaintiff’s harm was a reasonably foreseeable consequence of the defendant’s conduct.
Negligent Infliction of Emotional Distress
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.
Guest Statute
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.
Negligence Per Se (minority approach)
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.
Intentional Interference
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.
Third Party IIED
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.
Public Figure IIED
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.
no affirmative duty to act
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.
Animals: Assumption of Risk
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.
deadly force to defend a third party
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.
Traditional Rule: Duty to Trespasser
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).
Traditional Rule: Duty to Licensee
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.
joint and several liability
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.
pure comparative negligence joint and several liability
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.
Vicarious Liability Indemnification
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.
Trespass to chattels
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.
intentional misrepresentation
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.
Strict products liability defendant
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).
Apparent consent
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.
private necessity
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.
profession’s applicable standard of care
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.
Trespass to land
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.
