Torts

Question 1

What duty does a landowner owe to an undiscovered trespasser?

Answer 1

No duty.

Question 2

What duty does a landowner owe to a discovered or anticipated trespasser?

Answer 2

The landowner must: (1) warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm, and (2) use reasonable care in the exercise of active operations on the property.

Question 3

What is the attractive nuisance doctrine?

Answer 3

Plaintiff must show (1) a dangerous condition on the land that the owner is or should be aware of, (2) the owner knows or should know children frequent the vicinity of the condition, (3) the condition is likely to cause injury, and (4) the expense of remedying the situation is slight compared with the magnitude of the risk.

Child does not have to be attracted onto the land by the dangerous condition, nor is the attraction alone enough for liability.

Question 4

What duty is owed to licensees?

Answer 4

Licensee – one who enter for their own purpose or business, rather than for possessor’s benefit. The possessor has a duty to (i) warn of dangerous conditions known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover, and (ii) exercise reasonable care in the conduct of active operations on the property. No duty to inspect or repair.

Question 5

What duty is owed to invitees?

Answer 5

Invitees enter onto the land in response to invitation by the landowner. Landowner or occupier owes the same duties owed to licensees plus a duty to make reasonable inspections to discover nonobvious dangerous conditions, and make them safe.

Question 6

What is required to show a prima facie case for battery?

Answer 6

Intentional causing harmful or offensive contact to plaintiff’s person.

Question 7

What is required to show a prima facie case for assault?

Answer 7

Intentional act by defendant causing a reasonable apprehension in plaintiff of immediate harmful or offensive contact to plaintiff’s person.

Question 8

What is required to show a prima facie case for false imprisonment?

Answer 8

Intentional act or omission on the part of the defendant that confines or restrains plaintiff to a bounded area. Causation must be shown.

This includes physical barriers, physical force, threats of force, failure to release, and invalid use of legal authority.

Must be no reasonable means of escape.

Question 9

What is required to show a prima facie case for intentional infliction of emotional distress?

Answer 9

Intentional or reckless act by defendant amounting to extreme and outrageous conduct causing severe emotional distress (must show damages).

This is conduct that transcends all bounds of decency. Conduct not usually extreme and outrageous may become so if it is continuous in nature, directed at a certain plaintiff, or committed by a certain type of defendant.

Proof of physical injury is not required.

Question 10

What is required to show a prima facie case for trespass to land?

Answer 10

Intentional physical invasion of plaintiff’s real property and causation.

Physical invasion may be by a person or object.

Intent only needs to be to enter.

Question 11

What is required to show a prima facie case for trespass to chattels?

Answer 11

An intentional act by defendant that interferes with plaintiff’s right of possession in a chattel, causation, and damages.

The interfering may be either an intermeddling (directly damaging) or a dispossession (depriving plaintiff of his lawful right of possession).

Actual damages to possessory right (not necessarily to the chattel) are required.

Question 12

What is required to show a prima facie case for conversion?

Answer 12

An intentional act by defendant that interferes with plaintiff’s right of possession in a chattel; the interference is so serious that it warrants requiring defendant to pay the chattel’s full value; and causation.

Plaintiff may recover FMV of chattel at time of conversion or replevin.

Question 13

What two things must we ask when consent is being offered as a defense?

Answer 13

(1) Was there a valid consent (i.e. not procured by fraud)?

(2) Did the defendant stay within the boundaries of the consent?

Question 14

What is the defense of self-defense in tort?

Answer 14

When a person reasonably believes that she is being or is about to be attacked, she may use such force as is reasonably necessary to protect against injury. Need not attempt to escape. Modern trend imposes duty to retreat before using deadly force if can be done safely, unless actor in his home. Generally unavailable to initial aggressor.

Reasonable mistake as to existence of danger is allowed.

Question 15

What is the defense of other defense in tort?

Answer 15

One may use force to defend another when the actor reasonably believes that the other person could have used force to defend himself.

Question 16

When is the defense of defense of property available in tort?

Answer 16

One may use reasonable force to prevent the commission of a tort against her real or personal property. A request to desist or leave must first be made unless it clearly would be futile or dangerous. Defense does not apply once the tort has been committed; however, one may use force in hot pursuit of another who has tortiously dispossessed the owner of her chattels because the tort is viewed as still being committed.

Question 17

What is the defense of necessity in tort?

Answer 17

A person may interfere with the real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it.

Question 18

What are the two types of necessity defenses and how do they differ?

Answer 18

There are two types of necessity – public and private.

Public necessity – when the act is for the public good. This is an absolute defense.

Private necessity – when the act is solely to benefit a limited number of people. Under this defense, the actor must pay for any injury he causes (unless it was to benefit the property owner).

Question 19

What are the elements of defamation?

Answer 19

(1) A defamatory statement;
(2) Of and concerning the plaintiff;
(3) Published by defendant to a third party; and
(4) Damages to plaintiff’s reputation result.

Defamed person must be LIVING.

Question 20

What two additional requirements are required by the Constitution to prove defamation when it involves a matter of public concern?

Answer 20

Plaintiff must prove the falsity of the defamatory language; and fault on the part of the defendant (actual malice).

Question 21

What is the difference between libel and slander regarding what a plaintiff must prove?

Answer 21

With libel, plaintiff need not prove special damages and general damages are presumed. With slander, plaintiff must prove special damages unless the defamation falls under one of the slander per se categories.

Question 22

What are the categories of slander per se?

Answer 22

(1) Adversely reflects on one’s conduct in a business or profession;
(2) One has a loathsome disease;
(3) One is or was guilty of a crime involving moral turpitude; or
(4) A woman is unchaste.

Question 23

What constitutes a public figure in a defamation case(requiring a showing of actual malice)?

Answer 23

A person becomes a public figure by achieving pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy.

Question 24

Invasion of Privacy – Appropriation of plaintiff’s picture or name

Answer 24

It is necessary to show unauthorized use of plaintiff’s picture or name for defendant’s commercial advantage. Liability generally limited to ads or promotions of products/services. Mere economic benefit by itself is insufficient.

Question 25

Invasion of Privacy – Intrusion on Plaintiff’s Affairs or Seclusion

Answer 25

The act of prying or intruding must be highly offensive to a reasonable person. The thing into which there is an intrusion must be private. Photos taken in public places not actionable.

Question 26

Invasion of Privacy – Publication of Facts Placing Plaintiff in False Light

Answer 26

This tort exists where one attributes to plaintiff views he does not hold or actions he did not take. This must be something that is highly offensive to a reasonable person under the circumstances. There must be publicity for liability to attach.

If matter of public interest, malice must be proved.

Question 27

Invasion of Privacy – Public Disclosure of Private Facts About Plaintiff

Answer 27

Public disclosure of private information about plaintiff. The public disclosure must be highly offensive to a reasonable person of ordinary sensibilities. Liability may attach even if statement is true. Watch out for First Amendment limitations.

Question 28

What are the elements of Intentional Misrepresentation (i.e. Fraud)?

Answer 28

(1) Misrepresentation of material fact (AFFIRMATIVE)
(2) Scienter – ∆ knew or believed it to be false or that there was no basis for statement
(3) Intent to induce πto act or refrain from acting in reliance on the misrepresentation
(4) Causation (actual reliance)
(5) Justifiable reliance; and
(6) Damages (plaintiff must suffer actual pecuniary loss)

Question 29

What are the elements of Negligent Misrepresentation?

Answer 29

(1) Misrepresentation by defendant in a business or professional capacity;
(2) Breach of duty toward a particular plaintiff;
(3) Causation;
(4) Justifiable reliance; and
(5) Damages

Question 30

What are the elements of Interference with Business Relations?

Answer 30

(1) Existence of valid contractual relationship between plaintiff and third party or valid business expectancy of plaintiff;
(2) Defendant’s knowledge of the relationship or expectancy;
(3) Intentional interference by defendant inducing a breach or termination of the relationship or expectancy; and
(4) Damages

WATCH OUT FOR NORMAL COMPETITION

Question 31

What are the elements of Malicious Prosecution?

Answer 31

(1) Institution of criminal proceedings against plaintiff
(2) Termination in plaintiff’s favor
(3) Absence of probable cause for prior proceedings
(4) Improper purpose; and
(5) Damages

Prosecutors are immune.

Question 32

What are the elements of Abuse of Process?

Answer 32

(1) Wrongful use of process for ulterior purpose

(2) Definite act or threat against plaintiff in order to achieve ulterior purpose.

Question 33

What is standard of care owed by professionals?

Answer 33

A professional or someone with special occupational skills is required to possess the knowledge and skill of a member of the profession occupation in good standing in similar communities.

Medical specialists will be held to a national standard of care. Modern trend holds all physicians to a national standard.

Question 34

What is the standard of care owed by children?

Answer 34

Children are held to the standard of a child of like age, education, intelligence, and experience. This is a subjective test.

A child under 4 is generally without capacity to be negligent.

If a child is engaged in an adult activity, he may be held to an adult standard of care.

Question 35

What must plaintiff show in order to prevail on a negligent infliction of emotional distress theory?

Answer 35

(1) Plaintiff was within the zone of danger;
(2) Plaintiff must suffer physical symptoms from the distress.

For a bystander NOT in ZOD, must show (i) π and person injured by ∆ are closely related, (ii) the π was present at scene of injury, and (iii) the π personally observed or perceived the event.

Question 36

When does a legal duty to act arise?

Answer 36

Assumption of duty by acting;
Peril due to defendant’s conduct
Special relationship between parties
Duty to control third persons

Question 37

What must be shown to invoke the doctrine of res ipsa loquitur?

Answer 37

(i) The accident causing the injury is a type that would not normally occur unless someone was negligent;
(ii) The injury causing instrumentality was under defendant’s exclusive control

THIS BEATS A DIRECTED VERDICT

Question 38

What is negligence per se?

Answer 38

A statutory standard of care – the person harmed must the type of person protected by the statute, and the harm done must be within the risk contemplated by the statute. Plaintiff must still prove causation and damages.

Exceptions: (1) Compliance with statute more dangerous than violating the statute; (2) Complying with statute is impossible under the circumstances.

Question 39

Examples of cases which almost never cut off the chain of causation

Answer 39

Subsequent medical malpractice, negligent rescue, reaction forces, subsequent diseases or accidents.

Question 40

Examples of cases in which an intervening cause will not cut off liability if defendant can anticipate the intervening cause

Answer 40

Negligence of a third party, criminal conduct, acts of God

Question 41

How is an abnormally dangerous activity defined for strict liability purposes?

Answer 41

(1) The activity is incapable of being conducted except with high risk;
(2) If harm occurs, it is likely to be severe; and
(3) The activity must be unusual in the community where it takes place

Remember: proximate cause still applies – harm must be within the risk.

Question 42

What are the elements of Strict Products Liability?

Answer 42

(1) Defendant is a merchant of the kind of goods involved (commercial supplier);
(2) The product must be defective;
(3) The defect existed when the product left the seller’s hands;
(4) The plaintiff made a foreseeable use of the product (proximate cause limitation)

Traditionally, assumption of risk will bar recovery, whereas contributory negligence will not.