Torts

Question 1

Intentional torts

Answer 1

1. Battery
2. Assault
3. False imprisonment
4. Intentional infliction of mental distress (IIED)
5. Trespass to land
6. Trespass to chattels
7. Conversion

Question 2

Intentional torts - elements of every intentional tort

Answer 2

Act: volitional movement by D

Intent: specific (goal in acting is to bring about specific consequences) OR general (D knows with substantial certainty that consequences will result)

Causation: D’s conduct was substantial factor in bringing about injury.

Incapacity is no defense!

Question 3

Intentional torts - torts for which transferred intent is possible

Answer 3

1. Assault
2. Battery
3. False imprisonment
4. Trespass to land
5. Trespass to chattels

Question 4

Elements of battery

Answer 4

1. Harmful or offensive contact (judged by reasonable person standard)
2. With P’s person (includes anything connected to P)
3. Intent
4. Causation

Question 5

Elements of assault

Answer 5

1. Act creating a reasonable apprehension in P (apparent ability enough; words not sufficient)
2. Of immediate harmful or offensive contact to P’s person (immediacy key; words can negate immediacy)
3. Intent
4. Causation

Question 6

Elements of false imprisonment

Answer 6

1. Act or omission by D that confines or restrains P (P must know confined; moral pressure & future threats insufficient)
2. To a bounded area (no reasonable means of escape known to P)
3. Intent
4. Causation

Question 7

Elements of intentional infliction of emotional distress

Answer 7

1. Extreme and outrageous conduct: exceeds all bounds of decency tolerated in a civilized society
   Look for continuous conduct; conduct against fragile plaintiff, conduct by common carrier/innkeeper.
2. Intent or recklessness
3. Causation
4. Damages: severe emotional distress (only intentional tort to person require damages)

Question 8

Elements of intentional infliction of emotional distress - bystander case

Answer 8

1. D intentionally causes physical harm to 3P
2. P suffers severe emotional distress
3. Either:
   i. Prima facie case for IIED
   OR
   i. P was present when the injury occurred
   ii. P is a close relative of the injured person
   iii. D knew (i) and (ii)

Question 9

Elements of trespass to land

Answer 9

1. Physical invasion of P’s real property (must be person or object; intangible matter is not trespass but may be nuisance)
2. Intent (need only to intend to enter land; does not matter if unaware land belonged to another)
3. Causation

Note: Proper P is person in possession, not owner of land.

Question 10

Elements of trespass to chattels

Answer 10

1. Act that interferes with P’s right of possession
   Intermeddling: directly damaging the chattel
   Dispossession: depriving P of possession
2. Intent
3. Causation
4. Damages (to chattel OR to a possessory right)

Question 11

Elements of conversion

Answer 11

1. Act that interferes with P’s right of possession
2. Interference is so serious that D should pay chattel’s full value
3. Intent
4. Causation

Operates as a “forced sale”; D pays purchase price as if had purchased item.

Question 12

Intentional torts - defenses

Answer 12

1. Consent
2. Privilege
3. Necessity

Question 13

Intentional torts - defense of consent - who can consent; limits on consent

Answer 13

Only plaintiff with legal capacity can give valid consent; children can consent to age-appropriate invasions
Cannot consent to a criminal act
Cannot exceed scope of consent

Despite express consent:

• Mistake taken advantage of by D vitiates
• Fraud as to non-collateral matter vitiates
• Duress vitiates, unless it threatens only future action or economic deprivation

Question 14

Intentional torts - defense of consent - types

Answer 14

Express consent: P agrees to give D right to act in way that would otherwise be tortious.

Implied consent: inferred from custom, usage, P’s conduct OR implied by law for saving life/important property

Question 15

Intentional torts - defense of privilege - self-defense

Answer 15

Availability: actor reasonably believes that he is being or about to be attacked

• Generally, initial aggressor may not claim
• Retreat not necessary, unless, under modern rule, deadly force is used, actor is outside home, and safe retreat is possible

Mistake: reasonable mistake as to existence of danger is allowed

Extent: may not use more force than is reasonably necessary to protect against injury

Question 16

Intentional torts - defense of privilege - defense of others

Answer 16

Availability: actor reasonably believes other person could have used force to defend himself

Mistake: reasonable mistake as to whether other person is being attacked OR has self-defense right is permitted

Extent: may use as much force as could have used in self-defense

Question 17

Intentional torts - defense of privilege - defense of property

Answer 17

Availability: actor may prevent the commission of tort against real/personal property, following a request to desist/leave (unless clearly futile or dangerous). Not available once tort completed, but may use in “hot pursuit” following dispossession. Privilege supersedes defense.

Mistake: reasonable mistake allowed as to whether intrusion occurred or request to desist required. Mistake not allowed as to whether entrant has privilege.

Extent: reasonable force; deadly force and mechanical devices (e.g., spring guns) not allowed

Question 18

Intentional torts - defense of privilege - recapture of chattels

Answer 18

May use peaceful means to recover chattel from one whose possession began lawfully. Force may be used when in hot pursuit of one whose possession began unlawfully.

Privilege to enter another’s land to recover, unless property is on land through owner’s fault (e.g., negligently letting cattle wander).

Question 19

Intentional torts - defense of privilege - shopkeeper’s privilege

Answer 19

A shopkeeper may have a privilege to detain for a reasonable period of time individuals reasonably believed to be in possession of shoplifted goods.

Question 20

Intentional torts - defense of privilege - privilege of arrest

Answer 20

Actor may have a privilege to make an arrest of 3P. For a felony, police officer may make a reasonable mistake; citizens may make a reasonable mistake only regarding the identity of the felon, not whether a felony actually occurred.

Question 21

Intentional torts - defense of necessity

Answer 21

Only apply to property torts (trespass to land, trespass to chattels, or conversion)
Public: D interferes with P’s property in emergency to protect community as a whole or a significant group of people
Private: D interferes with P’s property in emergency to protect own interest
Must pay damages in private necessity case, unless act was to benefit owner

Question 22

Elements of defamation

Answer 22

1. Defamatory language
2. Of or concerning P
3. Publication by D to a 3P, intentionally or negligently
4. Damage to P’s reputation
   - - If public concern/public figure –
5. Falsity
6. Fault by D

Cause of action is personal and cannot be assigned; P must be living person

Question 23

Defamation - libel

Answer 23

Written or printed publication of defamatory language. No need to prove special damages, general damages are presumed.

Question 24

Defamation - slander

Answer 24

Spoken defamation. P must prove special damages (pecuniary loss), unless defamation is slander per se – comment that:

1. Questions P’s conduct in business/profession
2. P has a loathsome disease
3. P is guilty of crimes of moral turpitude
4. Woman is unchaste

Question 25

Defamation - subject involving public figure or matter of public concern

Answer 25

Falsity: statement must be untrue

Fault: if P public figure, must show actual malice - D knew statement was false and made anyway, or was reckless in investigating accuracy. If P private figure, must show D was negligent or careless in checking accuracy of statement.

Question 26

Defamation - defenses

Answer 26

1. Consent
2. Truth
3. Absolute privilege: remarks made during judicial proceedings, by legislatures during legislative proceedings, by federal executive officials, between spouses
4. Qualified privilege: reports of official proceedings, statements in the interest of the publisher (defending self), statements in the common interest of the publisher and recipient. Must have good faith belief statement is true and confine to relevant matters.

Question 27

Privacy torts

Answer 27

1. Appropriation of picture or name
2. Intrusion on affairs or seclusion
3. False light
4. Public disclosure of private facts

Must show causation but not special damages.

Defenses: Consent and defamation privileges. Truth and good-faith are not defenses.

Cause of action is personal and cannot be assigned; P must be living person

Question 28

Privacy torts - appropriation

Answer 28

Unauthorized use of P’s picture or name for D’s commercial advantage. Generally limited to advertisements. Newsworthiness exception.

Question 29

Privacy torts - intrusion

Answer 29

Prying or intruding into something private that would be highly offensive to reasonable person.

Photographs in public places not actionable

Question 30

Privacy torts - false light

Answer 30

Attribution to P of views does not hold or actions has not taken. False light must be highly offensive to reasonable person under the circumstances. Must be publication, and, if matter is in public interest, malice.

False light may also be defamatory. For defamation get economic damages, for false light get wounded feelings damages.

Question 31

Elements of fraud/misrepresentation

Answer 31

1. Misrepresentation of a material fact (silence generally not enough, must make affirmative misrepresentation)
2. Scienter: when D made statement, knew or believed it was false or there was no basis
3. Intent to induce reliance
4. Causation: actual reliance
5. Justifiable reliance (generally not justifiable to rely on opinion)
6. Damages: actual pecuniary loss

Question 32

Elements of negligent misrepresentation

Answer 32

1. Misrepresentation by D in business or professional capacity
2. Breach of duty toward particular P
3. Causation
4. Justifiable reliance by particular P, which could be contemplated
5. Damages

Question 33

Elements of interference with business relations

Answer 33

1. Valid contractual relationship between P and 3P or valid business expectancy of P
2. Knowledge of relationship or expectancy by D
3. Intentional interference by D inducing breach or termination
4. Damages

D’s conduct may be privileged if it is proper attempt to obtain business

Question 34

Elements of malicious prosecution

Answer 34

1. Institution of criminal proceedings against P
2. Termination of proceedings in P’s favor
3. Absence of probable cause for proceedings
4. Improper purpose
5. Damages

Prosecutors are immune; most jurisdictions extended tort to civil proceedings.

Question 35

Elements of abuse of process

Answer 35

1. Wrongful use of process for an ulterior purpose

2. Definite act or threat against P to accomplish ulterior purpose

Question 36

Negligence - prima facie case

Answer 36

1. Duty to conform to a specific standard of care
2. Breach of that duty
3. Breach was actual and proximate cause of injury
4. Damages

Question 37

Negligence - duty of care

Answer 37

1. Foreseeable P
   - Cardozo/majority: P in foreseeable zone of danger
   - Andrews/minority: duty to all
2. Standard of care
   - Reasonable person: objective standard accounting for D’s physical characteristics but not mental deficiencies. If D has superior skill or knowledge, must exercise.

Question 38

Negligence - duty of care - special cases

Answer 38

Professionals: knowledge and skill of member of profession in good standing in similar community (or nationally, for medical professionals)

Children: standard of a child of like age, education, intelligence, and experience. Subjective test. Children under four usually not negligent. Children in adult activities held to adult standard of care.

Common carrier/innkeepers: very high degree of care to passengers/guests; liable for slight negligence.

Question 39

Negligence - duty of care - landowners - undiscovered trespasser

Answer 39

No duty, so undiscovered trespasser always loses.

Question 40

Negligence - duty of care - landowners - those off premises

Answer 40

Duty to protect from unreasonably dangerous artificial conditions abutting adjacent land.

In urban areas, liable for damage caused by falling trees or branches.

Question 41

Negligence - duty of care - landowners - discovered/anticipated trespassers

Answer 41

Duty to warn of or make safe known, concealed artificial conditions involving risk of death or serious bodily harm.

Question 42

Negligence - duty of care - landowners - child trespassers (attractive nuisance)

Answer 42

Duty to warn of or make safe artificial conditions on property, if conditions below met.

1. Dangerous condition of which possessor is or should be aware
2. Possessor knows or should know children frequent vicinity
3. Condition likely to cause injury because of children’s inability to appreciate risk
4. Expense of remedying condition is slight compared with magnitude of risk

Question 43

Negligence - duty of care - landowners - licensees

Answer 43

Licensee enters with possessor’s permission for his own purpose or business, not possessor’s benefit. Includes social guests

Duty to warn of or make safe known, nonobvious dangerous conditions, whether artificial or safe.

Question 44

Negligence - duty of care - landowners - invitee

Answer 44

Invitee enters in response to an invitation by possessor in connection with a business or as member of public when possessor holds open land to public.

Duty to warn of or make safe nonobvious dangerous conditions, whether artificial or safe, that possessor knows of or could discover through reasonable inspection.

Question 45

Negligence - duty of care - statutory standards of care

Answer 45

“Negligence per se” is rule that violation of criminal statute creates conclusive evidence of breach of duty.

1. Statute provides a criminal penalty
2. Statute clearly defines standard of conduct
3. P is member of class statute intended to protect.
4. Accident falls within the class of risks the statute was trying to prevent.

Violation may be excused where compliance with cause more danger or where compliance beyond D’s control/impossible.

Question 46

Negligence - duty of care - negligent infliction of emotional stress

Answer 46

1. P is within zone of danger of physical injury or D’s conduct creates risk of severe distress (e.g., erroneously reporting relative’s death)
2. P suffers physical symptoms from distress

OR

1. P sees D negligently injure 3P
2. P and 3P are closely related
3. P present at the scene of injury
4. P personally observed or perceived event
5. P suffers physical symptoms from distress (majority)

Question 47

Negligence - breach - res ipsa loquitur

Answer 47

1. Accident causing injury is type that would not normally occur unless someone was negligent
2. Negligence is attributable to defendant (e.g., D had exclusive control of instrumentality causing injury)

Question 48

Negligence - causation - types of actual cause/cause in fact

Answer 48

But for: injury would not have occurred but for act or omission; applies where several acts, each insufficient to cause injury alone, together cause injury

Substantial factor: when several causes bring about injury, any of which would have been sufficient alone, D’s conduct is cause in fact if it was substantial factor in causing injury

Alternative causes: P injured by one of two acts, only one of which actually caused injury; burden shifts to Ds to show each’s actions not cause in fact.

Question 49

Negligence - causation - types of proximate cause

Answer 49

Direct cause: uninterrupted chain of events from negligent act to P’s injury; D is liable for all foreseeable harmful results

Indirect cause: intervening force comes into motion after D’s negligent act and combines with it to cause injury; D is liable for all foreseeable harmful results.

If intervening force produced unforeseeable harmful result, force is superseding. Not superseding:
Intervening medical negligence
Intervening negligent rescue
Intervening protection or reaction forces
Subsequent disease or accident.

Question 50

Negligence - defenses - contributory negligence

Answer 50

Minority rule. P is held to negligence standard of care; P’s negligence completely cuts off liability.

Exceptions: no defense to intentional torts or to liability based on violation of statute intended to protect Ps from incapacity/lack of judgment

Last clear chance: person with last clear chance to avoid accident who fails to do so is liable

Contributory negligence is imputed only when ordinary negligence would be computed.

Question 51

Negligence - defenses - assumption of risk

Answer 51

Minority rule. P maybe denied recovery if he assumed risk of damage caused by D’s act. P must have known of risk and proceeded voluntarily. Assumption can be implied.

Question 52

Negligence - defenses - pure comparative negligence

Answer 52

Dominant rule, and default on bar. P’s damage award reduced by percentage of fault attributable to him.

Question 53

Negligence - defenses - modified comparative negligence

Answer 53

Significant minority rule; only use on bar if mentioned by name. P’s damage award reduced by percentage of fault attributable to him; if P’s fault exceeds threshold (typically, 50%), recovery barred completely.

Question 54

Strict liability - prima facie case

Answer 54

1. Nature of dangerous activity imposes an absolute duty to make safe
2. Dangerous aspect of activity was actual and proximate cause of P’s injury
3. P suffered damage to person or property

Question 55

Strict liability - dangerous animals

Answer 55

Wild animal: strictly liable unless P is trespasser; safety precautions irrelevant

Domestic animal (house pets and farm animals): not strictly liable unless D is aware of animal’s dangerous propensities (one bite rule)

Question 56

Strict liability - abnormally dangerous activities

Answer 56

1. Activity creates a foreseeable risk of serious harm even when reasonable care exercised
2. Activity not a matter of common usage in community

Question 57

Strict liability - products liability

Answer 57

1. Strict duty owed by commercial supplier of product
2. Production or sale of defective product
3. Actual and proximate cause
   - Actual: defect existed when product left D’s control
   - Proximate: same as negligence
4. Damages (to person/property - economic loss alone insufficient)

Question 58

Strict liability - products liability - types of defects

Answer 58

1. Manufacturing defect
   Product departs from its intended design. Simply: one-in-a-million bad product that slips through.
2. Design defect
   Product could have been built differently. Hypothetical alternative design must be:
   i. Safer than version actually sold.
   ii. Economical (i.e., costs roughly the same).
   iii. Practical; cannot impair utility.
3. Information defect
   Product cannot be physically redesigned and it still has residual risks that consumers would not be aware of and it lacks adequate warnings about those risks.

Question 59

Strict liability - defenses

Answer 59

Contributory negligence jurisdiction: contributory negligence no defense if P failed to realize danger or guard against it; is defensive if P knew of danger and his unreasonable conduct was cause of harm

Comparative negligence jurisdiction: applies comparative negligence rules

Question 60

Comparative contribution

Answer 60

Majority view is that jury will assign percentages for Ds’ fault; D who has paid in full can recover appropriate percentages from each D.
Minority view is equal shares.

Question 61

Indemnity

Answer 61

Vicariously liable defendant who has paid in full can recover entire amount from active tortfeasor. In strict products liability case non-manufacturer who has paid in full can recover entire amount from manufacturer.

Question 62

Federal Tort Claims Act

Answer 62

Federal government has waived tort immunity for most non-discretionary (i.e., ministerial) acts.
Exceptions: assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel and slander, misrepresentation/deceit, interference with contract rights.