TORTS (1)

Question 0

PRIMA FACIE INTENTIONAL TORTS

Answer 0

To establish a prima facie case for intentional tort liability, it is generally necessary that the plaintiff prove the following elements by a preponderance of the evidence: act, intent, causation, harm

Question 1

INTENTIONAL TORTS

Answer 1

BATTERY
ASSAULT
FALSE IMPRISONMENT
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
(NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS)

Question 2

ACT

Answer 2

An act is a voluntary bodily movement over which the person has control; not involuntary acts resulting from seizure or convulsion, nor during hypnosis or unconsciousness.

Question 3

INTENT

Answer 3

Intent is shown by either purpose or knowledge that the act is substantially certain to cause harm.

Question 4

CAUSATION

Answer 4

Causation is satisfied if the defendant’s conduct is a substantial factor in bringing about the injury

Question 5

HARM

Answer 5

Harm is a physical or non-physical injury or loss, caused by the act, that results in damages.

Question 6

Battery

Answer 6

An act, done with intent, constituting harmful or offensive contact with the person, without consent or privilege, causing harm. The contact can be with the person or something appurtenant to the person.

Question 7

Assault

Answer 7

An act, done with intent, creating apprehension of an immediately harmful or offensive contact, without consent or privilege, causing harm.

Question 8

False Imprisonment

Answer 8

An act or omission, done with intent, that confines or restrains a person to a bounded area with no reasonable means of escape, without consent or privilege, causing harm.

Question 9

Intentional Infliction of Emotional Distress

Answer 9

An act, done with either intent or recklessness, amounting to extreme and outrageous conduct, causing severe emotional distress or bodily harm, without consent or privilege, causing harm.

Question 10

Negligent Infliction of Emotional Distress

Answer 10

Breach of a duty of care not to subject others to emotional distress which could
foreseeably cause physical injury by physical impact or threat of physical impact.
Duty (“zone of danger”), Breach, Causation, Harm (requires physical injury).

Question 11

Harms to Property

Answer 11

Trespass to Land
Trespass to Chattel
Conversion

Question 12

Trespass to Land

Answer 12

An act, done with intent, that physically invades or enters a person’s real property, without consent or privilege, causing harm.

Question 13

Trespass to Chattel

Answer 13

An act, done with intent, that interferes with a person’s right of possession or control in a chattel, without consent or privilege, causing harm.

Question 14

Conversion

Answer 14

An act, done with intent, that interferes with a person’s right of possession or control in a chattel, causing harm so serious that it warrants requiring the actor to pay the chattel’s full value, without consent or privilege.

Question 15

DEFENSES to INTENTIONAL TORTS

Answer 15

Acting without intent, or acting with consent or privilege are defenses to intentional torts.

Under the majority view, both minors and mental incompetents are liable for their intentional torts.

Question 16

Consent

Answer 16

Express, implied, apparent, medical, and consent of minors.

a. exceeding scope of consent b. consent by fraud

Question 17

Privileges

Answer 17

SOP NAD RR

Defense of: Self Others Property

Necessity
Arrest & Detention
Discipline

Re-Entry into Land
Re-Capture of Chattels

Question 18

Defense of Self, Others, Property

Answer 18

– privilege to use reasonable force to protect against an imminent threat of attack (or confinement). Privilege extends to strangers.

Question 19

Necessity –

Answer 19

privilege to reasonably invade or violate property rights to protect persons or property imminently threatened by emergency. Public necessity (unqualified privilege) vs. Private necessity (qualified privilege).

Question 20

Arrest & Detention –

Answer 20

privilege to make an arrest.

Shopkeeper’s Privilege – defense to false imprisonment to reasonably detain individuals who are reasonably believed to be in possession of “shoplifted” items.

Question 21

Discipline

Answer 21

– privilege of parents, teachers, and military to use reasonable force to preserve order.

Question 22

Reentry onto Land

Answer 22

– privilege to reasonably enter plaintiff’s land to recover defendant’s chattel on plaintiff’s land due to no fault of defendant.

Absolute Privilege – defendant not liable for damages where defendant’s chattel is on plaintiff’s land due to plaintiff’s fault.

Qualified Privilege – defendant liable for resulting damages where defendant’s chattel is on plaintiff’s land due to no fault of plaintiff.

Question 23

Recapture of Chattels

Answer 23

– privilege to promptly use reasonable force to recover the wrongful dispossession of a chattel. Use of deadly force is never a defense.

Shopkeeper’s Privilege – see supra.

Question 24

NEGLIGENCE

Answer 24

Negligence is conduct that falls below the applicable standard of care that a reasonably prudent person would use under the same or similar circumstances to avoid unreasonable risk of harm.
It is the breach of a duty of care which is the actual and proximate cause of the plaintiff’s injuries.

To recover for negligence, the plaintiff must establish a prima facie case proving each of the following elements by a preponderance of the evidence: Duty, Breach, Causation, Damages.

Question 25

NEGLIGENCE DUTY

Answer 25

– Justice Cardozo’s majority opinion in Palsgraf is that a duty is owed only to foreseeable plaintiffs within the “zone of danger”. Under the Andrews’ minority rule, a duty is owed to all.

Question 26

NEGLIGENCE STANDARD OF CARE

Answer 26

– Absent a special relationship, the defendant’s conduct will be measured against the Reasonably Prudent Person under the same or similar circumstances. Another measure, Hand Formula: N=B<PL… To maximize social utility, where the costs of accidents exceeds the costs of preventing them, the law will impose liability.

Question 27

Special Relationships –

Answer 27

professionals, children, innkeepers & common carriers, landowner/occupier. Duty to care, duty to control, duty to warn.

Question 28

PROFESSIONALS

Answer 28

Professionals traditionally held to the same knowledge and skill as other members in the community.
Modern trend uses “national” standard. Specialists are held to an even higher standard.

Question 29

CHILDREN

Answer 29

Children standard of care is that of a child of same age (over 4), education, intelligence, experience.
Exception: where the child is engaged in an adult activity, like driving an automobile.

Question 30

Innkeepers & Common Carriers

Answer 30

Innkeepers & Common Carriers are held to a very high standard of care; liable for slight negligence.

Question 31

Land Owner to Invitee

Answer 31

Land Owner to Invitee – Duty to make reasonable inspections to discover, warn of, or make safe, any non-obvious, dangerous natural and artificial conditions, and harmful activities.
An invitee is one who enters land for the land owner/occupier’s benefit by landowner’s invitation. Business invitees include store customers, employees, mailman, garbage collector, vendors.
Public invitees come onto land held open to the public, including airports, churches, museums.

Question 32

Land Owner to Licensee

Answer 32

Land Owner to Licensee – Duty to warn of, or make safe, any non-obvious, dangerous natural and artificial conditions, and harmful activities. A licensee is generally one who enters land for their own benefit, such as social guests, visiting relatives, or door-to-door salesmen.

Question 33

Land Owner to Child Trespassers

Answer 33

Land Owner to Child Trespassers – Duty to warn of, or make safe, any artificial conditions and harmful activities creating a foreseeable risk of danger that the child would not appreciate, if the risk outweighs the expense of eliminating the danger.

Question 34

Attractive Nuisance Doctrine

Answer 34

Attractive Nuisance Doctrine – Land owners/occupiers owe a duty to avoid reasonably foreseeable risk of harm to children caused by artificial conditions which may lure children onto property. Application of the doctrine is based on four criteria: (1) foreseeable risk, (2) foreseeable trespass, (3) child’s ignorance, (4) risk v utility.

Question 35

Land Owner to Undiscovered Trespassers

Answer 35

Land Owner to Undiscovered Trespassers – No duty owed to unanticipated trespassers.

Question 36

BREACH = RCRSC

Answer 36

BREACH RCRSC – A breach of duty implies that the defendant’s conduct falls short of that level required by the applicable standard of care owed to the plaintiff. The applicable tests for breach of duty owed are (1) Reasonable Person, (2) Calculus of Risk, (3) Res Ipsa Loquitur, (4) Statute Violation, (5) Custom.

Question 37

Reasonable Person Test

Answer 37

Reasonable Person Test evaluates what a reasonable person would have done in the same or similar circumstances in determining if the behavior was negligent

Question 38

Calculus of Risk

Answer 38

Calculus of Risk using the Hand formula, B<PL=N, negligence is said to exist if the burden (B)
not undertaken to avoid harm is less than the probability (P) and severity of the loss (L).

Question 39

Res Ipsa Loquitur

Answer 39

Res Ipsa Loquitur “The thing speaks for itself”; only used where cause of harm can’t be determined!
The type of harm normally wouldn’t occur without negligence, inference that the defendant was in exclusive control of the instrumentality causing the injury, and that the plaintiff did not voluntarily contribute to the cause of injury.

Question 40

Negligence Per Se

Answer 40

Negligence Per Se is Statute Violation is a per se breach. If the violation is of a criminal statute, it is a per se breach if the statute was intended to protect the class for which the plaintiff is a member from the type of harm suffered by the plaintiff.

Question 41

Custom

Answer 41

Custom or deviation from custom may be admissible as evidence of negligence, but never conclusive.

Question 42

Causation

Answer 42

CAUSATION is satisfied if the defendant’s act is both the actual and proximate cause of the damages.

Question 43

Actual Causation

Answer 43

Actual Cause exists if “but for” the act, the damage would not have occurred.
Additional tests include: (1) Substantial Factor test, (2) Summer v Tice test, (3) Market Share test.

Question 44

Proximate Cause

Answer 44

Actual Cause exists if “but for” the act, the damage would not have occurred.
Additional tests include: (1) Substantial Factor test, (2) Summer v Tice test, (3) Market Share test.

Question 45

Damages

Answer 45

DAMAGES – Plaintiff must show injury to the plaintiff’s person or property; damages are the costs associated with repairing the injury.

Question 46

DEFENSES

Answer 46

DEFENSES to negligence are contributory negligence, comparative negligence, assumption of risk.

mental deficiency is not a defense to negligence

Question 47

Contributory Negligence

Answer 47

Contributory Negligence

At common law, a plaintiff who contributed to their own damage was barred from recovery.

Question 48

.

Answer 48

Comparative Fault/Negligence

Under comparative negligence, the plaintiff’s recovery may be diminished by their degree of fault.

Question 49

Assumption of Risk

Answer 49

Assumption of Risk requires that the plaintiff deliberately and voluntarily faced a known risk.

Question 50

STRICT LIABILITY – CANVAS

Answer 50

Conversion
Animals
Nuisance
Vicarious Liability
ABNORMALLY DANGEROUS/ULTRA-HAZARDOUS ACTIVITIES
Strict Liability-– RYLANDS v FLETCHER

Question 51

CONVERSION

Answer 51

CONVERSION – occurs where the defendant acquires possession, moves chattel, makes unauthorized transfer, delivery or disposal, withholds possession, destroys or materially alters, or in some cases, merely uses the chattel. Intent to exercise dominion and control over chattel; even if by mistake.

Question 52

ANIMALS

Answer 52

ANIMALS – the possessor of a wild animal may be strictly liable for harm caused by its inherently dangerous propensities, unless the victim did something voluntarily to bring about the harm. Possessor’s knowledge of the animal’s danger is not required for liability.

The possessor of a domestic animal may be strictly liable for harm resulting from its known abnormally dangerous propensities. Bull’s danger is normal; dog or bird that bites is abnormal.

Question 53

NUISANCE

Answer 53

NUISANCE – non-trespassory invasion or interference with use or enjoyment of land, causing substantial and unreasonable harm, done with intent or negligence. Harm is substantial if tangible or ongoing; unreasonable if gravity outweighs utility.

Question 54

NUISANCE DEFENSES: CELLAR

Answer 54

NUISANCE DEFENSES: CELLAR

Coming to nuisance
Extra Sensitivity
Live and Let Live
Locality Rule
Absolute Property Right

Question 55

Coming to Nuisance

Answer 55

Coming to the Nuisance – a form of consent, first in time, first in right.

Question 56

Extra Sensitivity

Answer 56

Extra-Sensitivity – plaintiff may not bring nuisance action unless the harm suffered is of a type which would be suffered by a normal person in the community, or by property in normal condition used for normal purposes.

Question 57

Live and Let Live

Answer 57

Live and Let Live – social doctrine based on the notion that there are some unavoidable intrusions that society must allow for the greater good of progress in a modern industrial society.

Question 58

LOCALITY RULE

Answer 58

Locality Rule – based on the principal that certain areas are set aside for industry an commerce, and society must allow for this. Certain things are allowed in certain areas.

Question 59

ABSOLUTE PROPERTY RIGHTS

Answer 59

Absolute Property Rights – modernly, not a very good defense

Question 60

NUISANCE TRADITIONAL DEFENSES

Answer 60

Traditional Defenses
Contributory negligence – applies only to negligence
Comparative fault – applies only for abnormally dangerous activities
Assumption of risk – valid defense

Question 61

VICARIOUS LIABILITY

Answer 61

VICARIOUS LIABILITY – imposes joint and several liability, via Respondeat Superior (“let the master answer”), for tortious acts done by employees or joint ventures acting within the scope of their employment.

Question 62

ABNORMALLY DANGEROUS/ULTRA-HAZARDOUS ACTIVITIES

Answer 62


ABNORMALLY DANGEROUS/ULTRA-HAZARDOUS ACTIVITIES
A duty is owed to all foreseeable plaintiff’s from foreseeable hazards caused by one who maintains an abnormally dangerous condition or activity, and may be strictly liable for the harm caused, even if defendant exercised reasonable care to prevent the harm.

An abnormally dangerous activity is inherently dangerous (posing substantial risk of harm to person or property), cannot be made safe (regardless of care), uncommon to the community or geographic area, and who’s social utility is outweighed by its risk of harm.

Defenses
Contributory negligence is not a defense.
Comparative fault – valid defense
Assumption of risk – valid defense

Question 63

STRICT LIABILITY – RYLANDS v FLETCHER

Answer 63

STRICT LIABILITY – RYLANDS v FLETCHER
Rylands v Fletcher held that if a person engages in a non-natural use of land, and brings, keeps, or carries anything onto his land, he has an absolute duty to prevent its escape, and is strictly liable for harm caused by its escape.