Tort Rules

Question 1

Intentional Torts

B A I F T T C

Answer 1

Require intent (knows with substantial certainty that a particular effect occurs) and causation (the effect legally caused by the defendant’s act or set in motion by the defendant.

Question 2

Battery

Answer 2

Intentional infliction of a harmful or offensive bodily contact

Question 3

Assault

Answer 3

intentional causing of the apprehension of an imminent harmful or offensive contact

Question 4

IIED

Answer 4

the intentional or reckless infliction of severe emotional distress caused by def’s extreme or outrageous
conduct
req’s intent, severe emotional distress, extreme and outrageous conduct,
3rd party - P present and known to be present and close relative OR present and known ans physical harm

Question 5

False Imprisonment

Answer 5

the def intentionally causes the P to be confined to a bounded area with no reasonable means of escape and the plaintiff is either aware or harmed

Question 6

Trespass to land

Answer 6

intentional physical invasion of the land of another

mistake of ownership is no defense. damage not necessary, nominal damages.

Question 7

Trespass to Chattels

Answer 7

an intentional interference with a person’s use or possession of a chattel. Damage is loss of value caused by the loss of use

Question 8

Conversion

Answer 8

intentional interference with the plaintiff’s possession that is so substantial that it warrants requiring the def to pay full value

Question 9

Defenses to Intentional Torts

C SD DO DP RC N

Answer 9

consent - within scope
self defense - reasonable to threat
defense of others - reasonable force to reas. belief
def of property - no deadly force
recapture of chattels - reas. force to regain possession
necessity - public/private to prevent a greater harm than the tort

Question 10

Negligence

Answer 10

Negligence is a breach of the standard of care. Requires duty, breach, causation (actual and proximate) damages and no defenses

Question 11

Duty

Answer 11

A person has a duty to act as a reasonable person

maj. Cardozo foreseeable plaintiff, min. Andrews everyone.

Question 12

Special Duties

A P C B O V

Answer 12

affirmative duty
professionals
children
bailment
owner/occupiers of land
violation of statute

Question 13

Affirmative Duty

Answer 13

Generally no affirmative duty but special relation, causing the danger, volunteer assistance

Question 14

Professionals

Answer 14

required to possess the knowledge and skill of a member of their profession in good standing
fireman’s rule - cant sue for negligence when injured by inherent risks

Question 15

Children

Answer 15

Must conform to a child of like age, experience, and intelligence unless adult activity then adult standard

Question 16

Bailment

Answer 16

Bailor- gratuitous - inform of known defects in chattel
hire- should be aware
Bailee - standard is who benefits - sole benefit to bailor, low, benefit to bailee then high standard of care

Question 17

Owners of Land

O T Ex to T L I L’ee L’or V

Answer 17

outside of premises
trespassers
ex to trespasser duty
licensee
invitee
lessee
lessor
violation of statute

Question 18

outside of premises

Answer 18

nat conditions no duty, artificial conditions, duty to warn

Question 19

trespassers

Answer 19

generally owes no duty to make the land safe or warn of dangerous conditions to undiscovered trespassers or invitees/licensees that go beyond scope of invitation

Question 20

exceptions to trespasser rule (2)

Answer 20

known or frequent trespassers - duty to warn of known dangers and artificial conditions that pose a risk of death or serious bodily harm
attractive nuisance - a landowner must exercise ordinary care to avoid foreseeable injury to children if
1) the owner knew or should have known that the area is one where children trespass
2) condition poses an unreasonable risk of serious injury or death
3 ) children do not discover the risk or realize the danger due to youth
4) benefit to owner and expense to remedy the condition is slight compared to the risk
5) owner fails to use reas. care to eliminate danger

Question 21

Licensee

Answer 21

one who enters the owners land with the owner’s consent for his own purpose.
Duty to warn of all known dangerous conditions that create an unreas. risk of harm that the licensee is unlikely to discover and to use reas. care in conducting operations on the property. No duty to repair or inspect

Question 22

Invitee

Answer 22

one who enters the land in response to an invitation by the owner to do business with the owner or as a public invitee for land open to the public at large.
Duty to make a reas. inspection to find hidden dangers and take affirmative actions to remedy a dangerous condition

Question 23

Lessee

Answer 23

General duty to maintain the premises same as landowners

Question 24

Landlord

Answer 24

must

1) warn of existing dangers which he knows or should know that the lessee is unlikely to discover
2) non-negligent repair- if promise to repair, must do so non-negligently
3) maintain common areas

Question 25

Violation of Statute -Negligence per se

Answer 25

is negligent per se if : violates statute without excuse P is within the class of persons the statute is designed to protect the harm is the type that the statute was designed to protect against negligence per se will establish the standard of care and breach

Question 26

Breach

Answer 26

breach occurs when the defendant's conduct fails to conform to the duty of care

Question 27

res ipsa loquitor

Answer 27

can be used to establish breach of duty in situations where the event transpiring creates an inference that the defendant was probably negligent because the action is the type that does not happen absent negligence

Question 28

Actual Cause

Answer 28

but/for the defendant's actions, plaintiff would not have been harmed

Question 29

joint tortfeasors

Answer 29

where two or more def are at fault and their conduct combines to cause the harm to the plaintiff, they will all be jointly and severally liable, as their actions are a substantial factor in causing the injury

Question 30

Proximate Cause

Answer 30

a def is liable for all harmful results that were reasonably foreseeable.

Question 31

eggshell skull plaintiff

Answer 31

def is also liable for any unforeseen physical consequences to plaintiff due to weakness or susceptibility because "take plaintiff as find him"

Question 32

intervening causes

Answer 32

liable for foreseeable intervening -subsequent med malpractice and neg. of rescuers not liable for superseding intervening causes that are reasonably foreseeable

Question 33

Damages

Answer 33

Damages require an actual injury. Can be direct loss, put of pocket economic loss stemming from injury, pain and suffering and hedonistic. P has a duty to mitigate and punitive may are available if def. conduct was wanton and willful

Question 34

NIED

Answer 34

def is liable when he engages in negligent conduct that causes the P to suffer severe emotional distress

Question 35

defenses to negligence

Answer 35

contributory negligence - negligence on the part of hte plaintiff that contributes proximately to his injuries and completely bars recovery. abolished in most jurisdictions comparative negligence - applies when plaintiff's own negligence has contributed to his injuries but is not a complete bar to recovery. liability is divided between the P and def in proportion to their degrees of fault. partial comparative - bars if plaintiff was at least as negligent as def pure comparative - allows recovery no matter how negligent P was but reduces by percentage of fault assumption of the risk - plaintiff knew of the risks and voluntarily consented to the risks

Question 36

Strict Liability a u

Answer 36

Animals domestic animals - reasonably foreseeable damage from trespass of his animals OR owner knew or had reason to know of the animals' dangerous propensities wild animals - nontrespass injuries which are a result of the animals dangerous propensities typical of the species

Question 37

ultrahazardous activity 5

Answer 37

activity is abnormally dangerous if: high degree of risk of serious harm risk cannot be eliminated by the exercise of reasonable care activity is not common activity is not appropriate for the location danger outweighs the activity's value to the community

Question 38

Products Liability i s n w m

Answer 38

liability of a seller of a tangible item, which because of a defect,, causes injury to its purchaser, user, or bystander can be based on any of these five theories: intent, strict product liability, negligence, breach of warranty, or misrepresentation.

Question 39

intent

Answer 39

defendant is liable if intended the consequences or were substantially certain to occur, punitive damages also available

Question 40

strict liability 6

Answer 40

a seller of a product is liable without fault for personal injuries caused by a defective product if the following elements are met

Question 41

commercial supplier

Answer 41

one who places the product in the stream of commerce without substantial alteration . Commercial suppliers include manufacturers and retailers.

Question 42

breach

Answer 42

breach of duty is established by showing the product was defective. There are three types of product defects: manufacturing defect, design defect, and a failure to warn

Question 43

manufacturing defect

Answer 43

a manufacturing defect occurs when the product is different and more dangerous than the others of its line because this product deviated from its intended design

Question 44

design defect

Answer 44

a design defect occurs when all products of a line are the same and all bear a feature whose design is itself defective and unreasonably dangerous. a design defect can be shown by the consumer expectation test or the risk-utility test.

Question 45

consumer expectation test

Answer 45

a product must meet the minimum safety expectations when used in a reasonably foreseeable manner

Question 46

risk utility test

Answer 46

a product is defective if the risk of danger inherent in its design outweighs the benefits of such design and the danger could have reduced or avoided by the adoption of a reasonable cost-effective alternative design. The court will consider the cost and utility of an alternative design compared to the cost and utility of the current design

Question 47

warning defect

Answer 47

a product is defective when the make fails to give adequate warning as to a known danger in the product in a particular use of the product that is nonobvious.

Question 48

compliance with industry standards

Answer 48

not conclusive evidence that a product is not defective but non-comlpliance can establish that a product is defective

Question 49

actual cause

Answer 49

but/for the defect, plaintiff would not have been harmed and that the product was defective when it left the plaintiff's control

Question 50

proximate cause

Answer 50

foreseeability

Question 51

damages

Answer 51

physical injury or property loss there is no recovery for purely economic loss

Question 52

defenses

Answer 52

assumption of the risk comparative negligence - product misuse if used in a manner that was not foreseeable disclaimers are not effective

Question 53

negligence

Answer 53

same as negligence but retailers are rarely liable because they only have a duty to inspect or warn of known dangers

Question 54

breach of warranty 3

Answer 54

express warranty - any statement of fact that concerns the goods. P only needs to show that product did not live up to its warranty to establish breach implied warranty of merchantability - implied in every sale of goods that they are fit for the ordinary purposes for which they are used fitness for a particular purpose - implied in every sale of goods when the seller knows that the buyer wants the goods for a particular purpose and the buyer relies on the seller's judgment to recommend a particular product

Question 55

defenses to warranty

Answer 55

assumption of the risk comparative/contributory for product misuse unless foreseeable failure to give notice of breach under the UCC

Question 56

misrepresentation MS ICyJaP

Answer 56

misrepresentation - action or omission of a meterial fact scienter - knowledge of statement's falsity or reckless disregard of the truth intent to produce P's reliance on the misrep causation justifiable reliance pecuniary damages

Question 57

nuisance

Answer 57

nuisance is a substantial and unreasonable interference with another's use and enjoyment of land in which he has interest - substantial interference - offensive, inconvenient to the average person in the community - unreasonable -harm to P outweighs utility, harm is greater than P should bear without consideration, factors land value, neighborhood and alternatives

Question 58

public nuisance

Answer 58

substantial, unreasonable interference with the morals, welfare, safety, or property rights of the community interference factors: location, frequency, duration, degree of damage, and social value -recovery by private party is only possible if suffered damage different in kind to that of the general public

Question 59

defenses to nuisance

Answer 59

legislative auth - zoning ordinances can help assumption of the risk if negligence theory coming to the nuisance - unless P only did it to file harassing lawsuit may only limit damages

Question 60

remedies

Answer 60

include damages and injunctive relief

Question 61

defamation - CL OP Does Suck

Answer 61

Common Law Defamation occurs when a false and defamatory statement of or concerning the plaintiff is published to another person causing damage to P's reputation

Question 62

opinion or true statements

Answer 62

never defamatory

Question 63

publication

Answer 63

must be intentionally or negligently made and must be understood by the third person. repeaters of the statement are also liable. need not actually harmed P but must show that it would have been believed

Question 64

damages l sps

Answer 64

damages depend on the type of defamation libel - is written or printed publication embodied in physical form incl. tv and radio and P will not need to show special damages and general damages are presumed slander - is spoken defamation and P must show special damages unless it is slander per se. slander per se damages are presumed and include: adversely reflects on P's fitness to conduct his business alleges one has a loathsome disease morally culpable criminal behavior serious sexual misconduct

Question 65

Con Law defamation

Answer 65

must be analyzed if the matter is of a public concern. req's: prove elements of C/L defamation establish fault of plaintiff by analyzing status of P public figure - P is a public figure if he has achieved pervasive fame or voluntarily assumed a role in a public controversy. courts will apply an actual malice standard which exists when there was knowledge that the statement was false or with reckless disregard as to truth. damages are presumed if actual malice is shown private person - any person not considered a public figure. negligence standard applies and only actual injury damages apply. if actual malice shown, then damages are presumed and punitive damages may apply

Question 66

defenses

Answer 66

truth consent absolute privilege -judicial, legis. proceedings, govt officials, between spouses even with malice qualified privilege (no malice) - publishers, protection, public interest,

Question 67

privacy m i p p

Answer 67

misappropriation - unauthorized use of plaintiff's likeness for commercial advantage intrude on plaintiff's solitude - unreasonable intrusion into private aspect of P's life in a private place that is highly objectionable to a reasonable person false light - one attributes to P views or actions he does not hold or did not take, and the false light is objectionable to a reasonable person. malice standards apply publicity of private life - public disclosure of private facts that are not a matter of legitimate public concern, objectionable to a reas. person and published to community at large

Question 68

misuse of legal process 5 i t a i d

Answer 68

``` institution of criminal or civil proceedings termination in P's favor absence of PC improper purpose damages suffered by accused ```

Question 69

interference with business relations 4 vK k i d

Answer 69

valid K or valid business expectancy between P and 3rd party knows or should have known intentional interference that induces a breach or termination damages BUT...may be privileged if proper attempt for own business using fair and justifiable methods

Question 70

3rd party issues vicarious liability

Answer 70

vicarious liability - one is vicariously liable to another when he commits a tortious act against a third party and another person is liable to the third party for this act respondeat superior - if an employee commits a tort during the course and scope of his employment, his employer will be jointly liable independent contractor - negligent hiring or nondelegable only

Question 71

multiple defendants

Answer 71

joint and several liability - exists where two or more negligent acts combine to proximately cause an indivisible harm making each liable for the entire harm. P can recover entire loss from either def. contribution - def. who pays more than fair share can recover from other def indemnity - shifting of entire loss to another def.

Question 72

survival and wrongful death

Answer 72

survival actions - allows one's cause of action to survive the death of the party. (except defamation, rt to privacy) wrongful death - grant recovery for pecuniary injury resulting to the spouse and next of kin and are allowed to the extent the deceased could have recovered if he lived

Question 73

tortious interference with family relations

Answer 73

husband or wife may bring action for loss of consortium or services for loss of spouse or child