Torts

Question 1

Battery

Answer 1

Harmful or offensive contact with the plaintiff’s person (includes anything they’re holding) intentionally caused by the defendant.

If a person knows with substantial certainty the consequences of his action, he has the intent necessary for battery. (general intent)

Example: poisoning a plaintiff’s drink can count as battery.

Question 2

Assault

Answer 2

Intentional creation by the defendant of a reasonable apprehension of immediate harmful or offensive contact to the plaintiff’s person. Words alone generally aren’t enough There should be some overt conduct.

Question 3

False Imprisonment

Answer 3

An intentional act or omission by defendant that causes plaintiff to be confined/restrained to a bounded area. An area is not bounded if there’s a reasonable means of escape that plaintiff can reasonably discover.

Confinement/restraint includes threats of force, false arrests, and failure to provide means of escape when under duty to do so.

Plaintiff must know they are being restrained.

Question 4

Intentional Infliction of Emotional Distress (IIED)

Answer 4

Remember: extreme & outrageous

Intentional or reckless extreme and outrageous conduct by defendant that causes plaintiff to suffer severe emotional distress. Physical injuries are not required, only severe emotional distress. This is the only intentional tort to a person that requires damages.

Plaintiff can recover either by showing prima facie elements, or that she was (1) present when injury occurred, (2) close relative of the injured person, and (3) aware of facts 1 and 2.

Question 5

Trespasser

Answer 5

Landowners owe no duty to undiscovered trespassers.

For discovered/known/anticipated trespassers, landowners owe a duty to warn or make safe known, highly dangerous, concealed, artificial conditions. (known, manmade death traps)

Question 6

Licensee

Answer 6

Those who come onto the land with express or implied permission for their own purpose (includes social guests).

Landowner has a duty to warn or make safe dangerous conditions known to the owner that create an unreasonable risk of harm to licensee that licensee is unlikely to discover. (known, concealed, dangerous conditions)

This is the same duty for discovered trespassers except it applies to all dangerous artificial AND natural conditions.

Question 7

Invitee

Answer 7

Those entering as members of the public or for a purpose connected to the business of the landowner. Invitees can lose their status if they exceed the scope of their invitation.

Landowner’s duty is the same as for licensees but with the additional duty to reasonably inspect for dangerous conditions. Duty to protect from all reasonably knowable traps.

Question 8

Negligent Infliction of Emotional Distress (NIED)

Answer 8

“Near miss” case: defendant breaches duty to plaintiff by creating risk of physical injury and plaintiff suffers emotional distress as a result. Plaintiff must be within “zone of danger” and ordinarily must suffer physical symptoms from the distress. Requires proof of damages unless there’s an exception.

Bystander Case: defendant breaches duty to bystander not in zone of danger who (i) is closely related to the injured person, (ii) was present at the scene of the injury, and (iii) personally observed or perceived the event.

Business Relationship Case: relationship exists between defendant and plaintiff under which defendant’s negligence has great potential (highly foreseeable) to directly cause emotional distress (e.g., hospital erroneously reports death of plaintiff’s family member)

Exceptions to damages: mishandling of a corpse or false report of a death.

Question 9

Res Ipsa Loquitor

Answer 9

Requirements:

(1) The accident causing the injury is a type that would not have occurred absent negligence,
(2) The negligence is attributable to defendant (usually because defendant is in exclusive control of the instrumentality causing injury), and
(3) Injury was not attributable to plaintiff’s own conduct.

No directed verdict may be given for defendant because when res ipsa element has been proved, plaintiff has made a prima facie case for negligence.

It does not switch burden of proof to defendant, and does not create presumption of negligence. If jury elects not to infer negligence, it may find for defendant even if defendant presents no evidence on that issue.

Question 10

Pure Comparative Negligence

Answer 10

Negligent plaintiff can recover damages reduced by the percentage of her fault even if she was primarily at
fault.

Question 11

Partial Comparative Negligence

Answer 11

Negligent plaintiff can recover reduced damages as long as her fault is not above a certain level (usually 50%);
if it is, she is barred from recovering.

Question 12

Public Nuisance

Answer 12

An act that unreasonably interferes with the health, safety, or property rights of the community.

Question 13

Private Nuisance

Answer 13

A substantial, unreasonable interference with another person’s use or enjoyment of her property.

Question 14

Defamation

Answer 14

Defamatory language concerning plaintiff published to 3rd person that causes damage to plaintiff’s reputation. Damage will be presumed if defamation is libel (in writing or other permanent form) or if it’s slander (spoken) within one of the 4 per se categories: (1) business or profession; (2) loathsome disease; (3) crime of moral turpitude, or (4) unchastity of a woman. Otherwise, special (pecuniary) damages must be shown.

Question 15

Defamation of Public Figure

Answer 15

If plaintiff is a public official/figure, or if the defamation involves a matter of public concern, plaintiff must prove that the statement was false.

Public officials or figures must prove “actual malice,” i.e., that the statement was made with knowledge of its falsity or reckless disregard of its truth or falsity.

Private figures suing on a matter of public concern must show (1) at least negligence as to truth or falsity, and (2) actual injury (no presumed damages).

Question 16

Invasion of Privacy

Answer 16

Remember: appropriation, intrusion/seclusion, false light, and private facts.

(1) Appropriation of plaintiff’s picture or name
- Unauthorized use of plaintiff’s picture or name for defendant’s commercial advantage. Limited to the advertisement or promotion of products or services.
(2) Intrusion on plaintiff’s affairs or seclusion
- An act of prying or intruding on plaintiff’s private affairs or seclusion that would be highly offensive to a reasonable person.
(3) Publication of facts placing plaintiff in false light
- Publication of facts about plaintiff putting her in a false light in public eye in a way that would be highly offensive to a reasonable person. Actual malice must be shown if the publication is in the public interest.
(4) Public disclosure of private facts about plaintiff
- Public disclosure of private info about plaintiff such that disclosure would be highly offensive to a reasonable person. Public disclosure requires publicity, not just publication to a few people.

Question 17

Intentional Misrepresentation (fraud)

Answer 17

Requires (1) misrepresentation by defendant with scienter (knowledge of falsity or reckless disregard as to truth/falsity), (2) intent to induce reliance, (3) causation (actual reliance on misrepresentation), (4) justifiable reliance on the misrepresentation, and (5) damages.

The defendant generally has no duty to disclose material facts but may be liable for active concealment.

Question 18

Negligent Misrepresentation

Answer 18

Misrepresentation by defendant in a business or professional capacity, breach of duty to plaintiff, causation (actual reliance on misrepresentation), justifiable reliance, and damages.

Defendant owes a duty only to those to whom misrepresentation was directed or those who defendant knew would rely on it.

Question 19

Interference with Business Relations

Answer 19

Requires: (1) valid contractual relationship or business expectancy of plaintiff and third party; (2) defendant’s knowledge of the relationship; (3) intentional interference by defendant inducing a breach or termination of the relationship, and (4) damages.

Defendant’s conduct may be privileged if it’s a proper attempt to obtain business or protect defendant’s interests.

Question 20

Outrageous Conduct

Answer 20

Conduct is outrageous if it exceeds all bounds of decency tolerated in a civilized society.

Question 21

Right to use Force to Recapture Chattels

Answer 21

An owner of a chattel may use reasonable force to recapture chattel only when in “hot pursuit” of tortfeasor.

A demand for return of chattel must be made before force is used, unless demand would be futile or dangerous. Force can only be used against tortfeasor or third party who knows chattel was tortiously obtained. If innocent third party has obtained chattel, the owner is no longer privileged to use force to effect a recapture of the chattel.

The defense is limited by circumstances of original dispossession. When another’s possession of owner’s chattel began lawfully, (ex. owner let them borrow it), owner may only use peaceful means to recover chattel.

Question 22

Defense of Property

Answer 22

Defendant cannot assert defense of property if she uses force against one with a privilege to enter the property. When an actor has a privilege to enter another’s land due to necessity, right of reentry, right to recapture chattels, etc., that privilege supersedes the privilege of the land possessor to defend her property.

Force used must be reasonable and not likely to cause death or serious bodily injury.

Landowner usually must make a request to desist before defending her property. A request is not required if the circumstances make it clear that the request would be futile or dangerous.

Question 23

Shopkeeper’s Privilege

Answer 23

The following conditions must be satisfied: (1) There must be a reasonable belief as to the fact of theft; (2) detention must be conducted in a reasonable manner and only non-deadly force can be used; and (3) detention must be only for a reasonable period of time and only for purpose of making an investigation.

Shopkeeper is not required to notify police in a reasonable amount of time to avoid liability for false imprisonment when detaining a suspect for shoplifting.

Question 24

Defense of Neccessity

Answer 24

A person may interfere with real or personal property of another when (1) the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force, and (2) the threatened injury is substantially more serious than the invasion that is undertaken to avert it. It doesn’t matter whether or not the person was exercising due care because this is an intentional tort (trespass to land).

Question 25

Negligence Per Se

Answer 25

Plaintiff must show that a statute was violated and that they (the victim) were part of the class of persons the statute was designed to protect, and that the accident occurred within the class of risk the statute was trying to prevent.

Question 26

Substantial Factor Test

Answer 26

Use for merged causes of harm. Multiple defendants are jointly and severally liable for a breach if their conduct substantially contributed to the ultimate injury suffered by the plaintiff.

If either breach could’ve caused the harm by itself, it’s a substantial factor.

Question 27

Joint and Several Liability

Answer 27

Plaintiff can recover the full amount of damages from either defendant at his option. Applies to substantial factor test.

Question 28

Unascertainable Cause Cases

Answer 28

Burden shifts to defendants to prove that their actions could not have been the cause of the harm. If neither meets their burden, both defendants are jointly and severally liable.

Example: two guns shoot at the same time and someone dies by gunshot.

Question 29

Intervening Act/Cause

Answer 29

Event that occurs after tortfeasor’s initial act of negligence and causes injury/harm to a victim.

Common Examples:

1. ) Intervening Med Mal: defendant hits plaintiff and breaks his leg. Plaintiff goes to hospital where Dr. puts bad cast on causing leg to need amputation. Defendant is liable for initial injury and amputated leg.
2. ) Intervening Negligent Rescue: defendant hits plaintiff and breaks leg. Good Samaritan sees plaintiff and tries to pull him out of the road, dislocating his shoulder. Defendant is liable for broken leg and shoulder because it’s foreseeable that rescuers can make things worse.
3. ) Intervening Protection or Reaction Forces: defendant runs red light and breaks plaintiffs leg. Pedestrians scramble to avoid car and accidentally stomp on plaintiff’s face. Defendant is liable for broken leg and face.
4. ) Subsequent Disease or Accident: defendant hits plaintiff and breaks leg. Def gets crutches and breaks arm after tripping on crutches. This is foreseeable to defendant, so defendant is the proximate cause of and is liable for broken leg and arm.

Question 30

Eggshell Skull Doctrine

Answer 30

Plaintiff recovers all damage suffered, even if that damage is surprisingly great in scope A defendant takes a plaintiff as he finds him.

Question 31

Conversion

Answer 31

(1) an act by defendant interfering with plaintiff’s right of possession in chattel, (2) intent to perform the act bringing about interference, (3) causation, and (4) damages—an interference that’s serious enough to warrant the defendant pay the full value of chattel.

Intent to trespass is not required. Intent to do the act of interference with chattel is sufficient for liability.

Damages: victim can recover fair market value of the chattel at the time of conversion.

Question 32

Trespass to Chattels

Answer 32

Consists of: (1) an act by defendant interfering with plaintiff’s right of possession in the chattel, (2) intent to perform the act bringing about the interference, (3) causation, and (4) damages.

Lesser offense than conversion. If the item cannot be recovered, it will almost always exceed a trespass and become conversion.

Question 33

Indirect Cause Case

Answer 33

A force came into motion after defendant’s negligent act and combined with the negligent act to cause injury to the plaintiff.

Question 34

Trespass to Land

Answer 34

Requires proof of (1) physical invasion of plaintiff’s real property, (2) intent to cause physical/tangible thing to enter the land, and (3) causation.

Mistake of ownership is no defense.

Question 35

Interference with Business Relations

Answer 35

Requires: (1) existence of valid contractual relationship between plaintiff and third party, or a valid business expectancy of plaintiff; (2) defendant’s knowledge of relationship or expectancy; (3) intentional interference by defendant that induces breach or termination of relationship or expectancy; and (4) damages.

Plaintiff has cause of action for interference with future business relationships for which plaintiff has reasonable expectation of financial benefit. An interferer’s conduct may be privileged where it’s a proper attempt to obtain business for interferer, particularly if interference is only with a prospective business relationship rather than an existing contract. What’s proper depends on factors, including means of persuasion used.

Question 36

Strict Products Liability

Answer 36

Requirements: (1) defendant is a commercial supplier, (2) defendant produced or sold a product that was defective when it left defendant’s control; (3) the defective product was the actual and proximate cause of plaintiff’s injury; and (4) plaintiff suffered damages to person or property.

“Commercial supplier” can include a manufacturer (including manufacturer of a defective component part), retailer, assembler, or wholesaler. A commercial supplier is liable if they sold a product that was so defective as to be “unreasonably dangerous”. This requires commercial suppliers to anticipate reasonably foreseeable uses even if they are misuses of the product.

Question 37

Strict Liability for Abnormally Dangerous Activities

Answer 37

A defendant may be strictly liable for an abnormally dangerous activity.

Requirements: (1) activity must create foreseeable risk of serious harm even when reasonable care is exercised by all actors; and (2) activity is not a matter of common usage in the community.

Question 38

Concurrent Tortfeasors of Indivisible Injury

Answer 38

When two or more tortious acts combine to proximately cause an indivisible injury to plaintiff, each tortfeasor is jointly and severally liable for that injury. Joint and several liability applies even though each tortfeasor acted entirely independently.