Torts

Question 1

Do we take into account hypersensitivity of p in intentional torts?

Answer 1

No

Question 2

Doctrine of Transferred Intent

Answer 2

The transferred intent doctrine allows an intent to commit a tort against one person to be transferred to the committed tort or to the injured person. It applies to (i) assault, (ii) battery, (iii) false imprisonment, (iv) trespass to land, and (v) trespass to chattels.

Question 3

What are the seven intentional torts?

Answer 3

Battery, assault, false imprisonment, IIED, trespass to land, trespass to chattels, conversion

Question 4

What are the elements of battery?

Answer 4

(1) intent to
(2) cause a harmful or offensive contact
(3) to the plaintiff’s person.
(4) causation

Damages not required.

Question 5

What is assault?

Answer 5

(1) act by defendant creating a reasonable apprehension in plaintiff,
(2) of immediate harmful or offensive contact to p’s person.
(3) intent
(4) causation

Damages not required

Question 6

What is false imprisonment?

Answer 6

(1) an act or omission on the part of defendant that confines or restrains the plaintiff to a bounded area
(2) intent
(3) causation

Damages not required.

Question 7

What are the elements of IIED? Subparts?

Answer 7

(1) an act by defendant amounting to extreme and outrageous conduct
“exceeds all bounds of decency in a tolerated civilized society.” Words not enough unless:

acts that are not typically outrageous may become so if repetitive/continuous in nature, directed towards a type of vulnerable plaintiff (old person, child), or done by a certain p (innkeeper, common carrier).

(2) intent by the defendant to cause the p to suffer severe emotional distress, or recklessness as to the effectt of the d’s conduct

(3) causation
for third party IIED, you have to show that (1) she was present when the injury occurred, (2) she is a close relative of the injured person, and (3) defendant knew of those facts.

(4) damages - severe emotional distress

Question 8

What are the elements of trespass to land?

Answer 8

(1) physical invasion of p’s real property (possessive or constructive)
(2) intent
(3) causation

Question 9

What are the elements for trespass to chattel (vandalism)?

Answer 9

(1) act by defendant that interferes with the plaintiff’s right of possession in a chattel
(2) intent
(3) causation
(4) actual damages to possessory right are required

Question 10

What are the elements of conversion (theft)?

Answer 10

(1) act by defendant that interferes with the plaintiff’s right of possession in a chattel
(2) intent to do that act that interferes with right of possession
(3) causation
(4) damages - an interference serious enough in nature or consequences to warrant that d pay the chattel’s full value

Question 11

What are the three categories of defenses for intentional torts?

Answer 11

(1) consent
(2) self defense, defense of others, defense of property
(3) necessity

Question 12

What are the types of consent? What are the two inquiries we ask with every consent question?

Answer 12

(1) was there a valid consent?
- express consent - d expressly says the action is okay UNLESS (a) based on mistake that the plaintiff knew and took advantage of, (b) induced by fraud and goes to essential matter of claim, (c) induced by duress unless duress is only threats of future action.

• apparent/implied consent - that which a reasonable person would infer from custom and usage or p’s conduct, normal contacts in body-contact sports.
• consent implied by law - when action is necessary to save someone’s life or important interests in person or property
  (2) did the p stay within the boundaries of consent?

Question 13

What are the three inquiries we ask for intentional tort defense self-defense, defense of others, and defense of property?

Answer 13

(1) is the privilege available? Privileges apply only to preventing commission of tort.
(2) is mistake permissible as to whether the tort being defended against is actually being committed?
(3) was a proper amount of force used?

Question 14

May a landowner use force to regain real property after being dispossessed?

Answer 14

A landowner may not use force to regain real property after being tortiously dispossessed. Most states today do not allow resort to “self-help”; one who has been wrongfully excluded from possession of real property may bring an ejectment action or other summary procedure to recover possession. Hence, the owner who uses force to retake possession is liable for whatever injury she inflicts.

Question 15

May an owner of chattel use force to recapture the chattel?

Answer 15

An owner of chattel may use force to recapture the chattel. An owner may use reasonable force to recapture a chattel when in “hot pursuit” of the tortfeasor. A demand for return of the chattel must be made before force is used, unless the demand would be futile or dangerous.

limited by circumstances of the original dispossession - when another’s possession of the owner’s chattel began lawfully, the owner may only use peaceful means to recover the chattel.

Question 16

May a citizen use force to effect a misdemeanor arrest?

Answer 16

A citizen may use force to effect a misdemeanor arrest. However, the citizen is allowed to use only the amount of force necessary to effect the arrest and never deadly force.

Question 17

May a property owner use force to defend the property from tortious interference?

Answer 17

A property owner may use force to defend the property from tortious interference. Usually must make a request to desist first. Although a property owner may use reasonable force to defend property, she may not use force that will cause death or serious bodily harm. Furthermore, one may not use indirect deadly force such as a trap, spring gun, or vicious dog when such force could not lawfully be directly used, e.g., against a mere trespasser.

Question 18

Shopkeeper’s privilege

Answer 18

a shopkeeper to avoid liability for false imprisonment when detaining a suspect that he (1) reasonably believes has committed a theft if (2) she conducts the detention in a reasonable manner

Question 19

Necessity

Answer 19

only to property torts; defense that allows private invasion of property if out of necessity (you need food, shelter).
(1) you are obligated to pay for damage you caused to the property, but (2) you are privileged to enter and not liable for nominative or punitive damages, and (3) privileged to remain.

Question 20

What are the elements of a negligence case?

Answer 20

(1) duty on the part of the defendant to conform to a specific standard of conduct for protection of p against an unreasonable risk of injury (from cases)
(2) breach of that duty by d (about facts)
(3) breach is the actual and proximate cause of p’s injury (logic, policy)
(4) damage

Question 21

What is duty of care?

Answer 21

A legally imposed duty to take risk-reducing actions towards others. Duty of care is owed to all foreseeable plaintiffs. If d’s conduct creates an unreasonable risk of injury to persons like p, the general duty of care extends from d to p.

(1) was p foreseeable?
Someone is not foreseeable if they are not within the zone of danger from the d’s conduct

(2) if so, what is the applicable duty of case?
basic standard is reasonably prudent person - objective

if d has knowledge or experience superior to that of an average person, they must exercise that care

Question 22

What are the three particular categories of standards of care outside the reasonably prudent person?

Answer 22

(1) professionals where “practice” is involved - someone with special occupational skills is required to possess the average (not reasonable) knowledge and skill of a member of the profession or occupation in good standing.
- national standard of care
- doctor has duty to disclose risk of treatment

(2) children are held to standard of child of like age, experience, education, and intelligence (except for motorized vehicles - adult activity)

(3) owner of land to person who enters property
unknown trespasser - no duty of care

known or anticipated trespasser - possessor must protect these people from hazards that meet all four components

• artificial
• highly dangerous
• concealed
• d had prior knowledge

licensees - people who come on with express or implied condition and don’t confer economic benefit on d - these people are entitled to protection from hazards that are:

• concealed
• known to d

invitees - people there for purpose with economic benefit for possessor; entitled to protection from hazards that are:

• concealed
• d knew about or would have known about with reasonable inspection

Question 23

How to satisfy duty of care landowner’s duty of care toward entrant for hazardous item

Answer 23

(1) repair, remove, replace

(2) give warning

Question 24

Duty of care - firefighter’s rule

Answer 24

Firefighters and police officers are owed zero duty of care if they are injured by risks inherent to their job.

Question 25

Duty of care - Trespassing children

Answer 25

a property possessor owes a trespassing child a reasonable duty of care for artificial hazards

Question 26

Attractive Nuisance Doctrine

Answer 26

Most courts impose on a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous conditions on his property.

Plaintiff must show:

(1) dangerous condition on the land that the owner is aware of or should be aware of
(2) the owner knows or should know children frequently visit the vicinity of the condition
(3) the condition is likely to cause injury (dangerous because of child’s inability to appreciate the risk)
(4) the expense of remedying the situation is slight compared with the magnitude of the risk

Question 27

Negligence per se and excuses

Answer 27

If d’s conduct creates an unreasonable risk of injury to persons like p, the general duty of care extends from d to p.

A specific duty imposed by a statute providing for a criminal penalty may replace the general common law duty of care. For the statutory standard to apply, the plaintiff must show that she is in the class intended to be protected by the statute and the statute was intended to prevent the type of harm the plaintiff suffered.

Violations of statutes may be excused where compliance would cause more danger than violation or where compliance is beyond defendant’s control (includes disabilities)

Question 28

No duty to rescue and exceptions. What if you do rescue?

Answer 28

There is no duty to act affirmatively - to undertake a duty in the first place. EXCEP

1. preexisting relationship
   - formal relationship - innkeeper/guest, common carrier/passenger, invitee/business, family members
2. if d is the cause of peril through negligent or nonnegligent act

If people rescue, they are liable for careless rescuing activity. Reasonably prudent person standard.

Question 29

What are the elements of negligent infliction of emotional distress? What are the three mandatory categories?

Answer 29

1. Conduct required: subjecting p to threat of physical impact or severe emotional distress likely to cause physical symptoms
2. Negligence in creating risk of physical injury to p
3. D’s conduct generally must cause physical symptoms from distress
4. P bystander must be closely related to injured person be present at the scene, and observe and perceive injury

In near misses cases – harm almost happened and caused FEAR:

1. Negligence (d didn’t behave as reasonably prudent person or violated some other standard of care).
2. D’s negligence put you in a zone of physical danger. (near miss)
3. As a result of being distressed you had subsequent physical manifestations of that stress.

Bystander case – negligent defendant causes serious bodily injury or death to a party not involved in litigation. P is very sad/emotionally disturbed by what happened to X. (GRIEF)

1. negligence
2. P must show that he and X were close family members (spouse, parent, child)
3. Seen it as it happened – physically present; contemporaneous witness

Business relationship cases

1. Negligence
2. P has to show that careless performance by d will produce emotional distress
   a. Ex: negligence on behalf of funeral home will produce emotional distress
   b. Ex: medical lab

Question 30

When is there a breach? What are the three main theories for showing breach?

Answer 30

Where a defendant’s conduct falls short of that level required by the applicable standard of care due to p, she has breached her duty. Whether the duty of care is breached in an individual case is a question for the trier of fact. P may use one of the following theories to show proof of the breach.

Theories:

(1) custom or usage
(2) violation of statute
(3) res ipsa loquitur
- p must show (1) accident causing the injury is a type of accident that wouldn’t normally occur unless someone was negligence, and (2) negligence was attributable to the defendant.

Question 31

What is causation? What are the two necessary types? How do we show it?

Answer 31

Once negligent conduct is shown (a breach of the standard of care owed a foreseeable p), the p must show that the conduct was the cause of his injury. P must show actual cause and proximate cause.

actual cause - Act or omission is the cause in fact of an injury when the injury would not have occurred “but for” the act.

proximate cause - p’s injury must have been foreseeable consequence of d’s act

Question 32

Causation - Merged Causes

Answer 32

Where several causes bring about injury and any one alone would have been sufficient to cause the injury, the d’s conduct is the cause in fact if it was a substantial factor in causing the injury.. Ds are jointly and severally liable.

Question 33

Causation - Unascertainable Causes Approach

Answer 33

This test applies when there are two acts, only one of which causes injury, but it is not known which one. The burden of proof shifts to defendants, and each must show that his negligence is not the actual cause.

Question 34

Four Precedential Cases We Should Memorize

Answer 34

1. Driver causes accident, passenger goes to hospital and as a result of medical malpractice, needs to get his leg amputated. Driver is liable for amputated leg.
2. Intervening negligent rescue – good Samaritan grabs pedestrian so he doesn’t get hit by car but hurts his shoulder; good Samaritan is liable.
3. Intervening protection or reaction forces – car drives into crowd, stampede hurts one man. Driver is liable to man.
4. Follow on injury – if a man falls breaks his leg as a result of someone’s negligence and then two days later falls and breaks his arm – original person is liable

Question 35

Negligence - Thin-Skill Doctrine

Answer 35

P recovers all damages even if surprising in scope. Small breach causes major harm? You have to pay for the harm.

Question 36

Comparative Negligenve

Answer 36

Defendant offers evidence that plaintiff failed to exercise proper care for his or her own safety.
- Reasonably prudent person standard

Jury will be instructed to assign the two parties in the case percentage numbers that reflect their respective degree of fault. Plaintiff’s recovery will be reduced based on percentage of fault.

Question 37

Four instances of strict liability and defense against it

Answer 37

1. domestic animals for which d knows they have vicious propensity and non-domestic animals
2. abnormally dangerous activities (explosives, toxic materials)
   - (a) can’t be made safe with ordinary care
   - (b) activity is uncommon where d is carrying out activity
3. anything involving radiation or nuclear energy
4. injures caused by defective product if
   - (a) d is merchant
   - (b) product is defect (manufacturing defect, design defect, information defect)
   - (c) product not altered
   - (d) p was making foreseeable use of product at time of injury

Defense - If a plaintiff knowingly encountered a dangerous situation that would normally a dangerous situation that would normally lead to strict liability, p is barred from recovery.

Question 38

What is nuisance? Difference between private and public?

Answer 38

Nuisance is an invasion of either private property rights or public rights by conduct that is tortious because it falls into the usual categories of tort liability (intentional, negligent, strict liability).

Private Nuisance
Private nuisance is a substantial, unreasonable interference with another private individual’s use or enjoyment of property that he actually possesses or to which he has a right of immediate possession.

Public Nuisance
Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community, eg, using a building for criminal activities such as prostitution. Recovery by a private party is available for public nuisance only if the private party suffered unique damage not suffered by the public at large.

Question 39

Vicarious Lability

Answer 39

Vicarious liability is liability that is derivatively imposed. In short, this means that one person commits a tortious act against a third party and another person will be liable to the third party for this act.

Respondeat Superior
A master/employer will be vicariously liable for tortious acts committed by her servant/employee if the tortious acts occur within the scope of the employment relationship.
- “Frolic” or “Detour”: Employee making a minor deviation from his employer’s business for his own purposes is still acting within the scope of his employment.

Intentional torts outside scope of employment

If employee is acting to further employer’s purpose, employer is liable
o Authorization of physical force (nightclub bouncer) – employer liable

Independent Contractors
Business not liable for actions of independent contractors.
Business owner is vicariously liable if contractor is working on the premises and those ind. contractors negligently hurt someone.

Question 40

Loss of Consortium

Answer 40

For when uninjured spouse recovers for effects of injured spouse:

(1) loss of household services
(2) loss of society (companionship)
(3) loss of sex

Question 41

What are the elements of defamation?

Answer 41

1. p must show that d made a defamatory statement
2. of or concerning the p
3. publication thereof by d to a third person; and
4. damage to p’s reputation via libel (written or printed publication of defamatory language - sometimes need special damages) or slander (spoken defamation - special damages necessary)

if matter of public concern:

5. falsity of the statements and
6. malice - d knew it was false or published with reckless disregard for truth or falsity

Question 42

What are the four defenses to defamation? how is qualified privilege lost?

Answer 42

consent - complete defense

truth - where p doesn’t need to prove falsity, d may prove truth as complete defense

absolute privilege - remarks during judicial proceedings, legislators’ remarks during legislative proceedings, remarks by fed exec officials, compelled broadcasts, between spouses

qualified privilege - reports of official proceedings, statements in interest of publisher or recipient

qualified privilege is lost of the statement is not within scope of the statement or the speaker acted with actual malice (burden on d)

Question 43

What are the four main privacy torts? what are the two defenses to them?

Answer 43

Appropriation
The d uses p’s name of image for a commercial purpose.
- Newsworthiness exception
- Tort applies to everyone in the world

Intrusion of p’s Affairs or Seclusion
Invasion of the p’s seclusion in a way that would be highly offensive to a reasonable person.

Publication of Facts Placing P in False Light
Widespread dissemination of a material falsehood about the plaintiff that would be highly offensive to the average person.

Public Disclosure of Private Facts About P
Widespread dissemination of private information about p that is highly offensive to a reasonable person.

Defenses: consent, defamation privileges

Question 44

Intentional and negligent misrepresentation

Answer 44

Intentional Misrepresentation

1. Misrepresentation
2. Scienter – d knew or believed it was false or that there was no basis for statement
3. Intent to induce p to act or refrain from acting in reliance upon the misrepresentation
4. Causation – actual reliance
5. Justifiable reliance; and
6. Damages (must be actual pecuniary loss)Negligent Misrepresentation
7. Misrepresentation by d in a business or professional capacity
8. Breach of duty toward a particular p
9. Causation
10. Justifiable reliance
11. Damages

Question 45

What are the defenses to negligence and what is the general rule statement?

Answer 45

• contributory negligence
• assumption of risk
• comparative negligence

While under the traditional rules of contributory negligence and assumption of the risk a p’s conduct could result in her being barred from recovery, most jurisdictions now follow the modern rule of comparative negligence, whereby the p’s recovery is merely reduced according to the percentage of her fault.

Question 46

What duty of care does a business owner owe to those who enter the property for the purposes of this business?

Answer 46

A property owner has a duty to those who enter the property for a purpose connected to its business to warn of or make safe nonobvious dangerous conditions on the premises and to use ordinary care in the conduct of active operations on the property. The defendant must prove that this duty of care exists, a breach of that duty, actual and proximate causation, and damages.

Businesses that gather the public and profit on their premises have a duty to use reasonable care to prevent injury to their patrons.

Question 47

Strict Products Liability - how to est liability of commercial seller

Answer 47

a commercial seller who places the product in the stream of commerce may be strictly liable in tort for injuries caused by a defective product. the d must prove that:

(1) d is a commercial seller
(2) production or sale of product that was defective when it left the d’s control
(3) actual (left d’s control defective) and proximate causation (d is liable for foreseeable dangers)
(4) damages

any supplier in the chain of distribution may be liable - doesn’t matter if there was a contractual relationship between buyer and d

Question 48

How do you show a defect in a product?

Answer 48

manufacturing defect - product emerges from manufacturing different from and more dangerous than the products made properly – consumer expectation test (fails to perform as ordinary consumer would expect)

design defect - feasible alternative test - p has to show that d could have made the product safer without serious impact on the product’s cost or utility

information defect - failure to give adequate warning; danger must not be apparent to user