Torts

Question 1

Theories of Recovery

Answer 1

(1) Intentional Tort
(2) Negligence
(3) Strict Liability

Question 2

Intentional Tort Theory

Answer 2

Requisite Act?
Requisite Intent?
Was there injury, harm, or damages?
Was there causation (actual AND proximate)?
Is there any privilege or defense?

Question 3

Negligence Theory

Answer 3

Did D owe P a duty of care?
Did D breach this duty of care?
Was there injury, harm or damages?
Was there causation (actual AND proximate)?
Does D have any defense? –> contributory negligence, comparative negligence, or assumption of risk?

Question 4

Strict Liability

Answer 4

Did D engage in a “strict liability” activity?
-Possession of animals with known dangerous propensities
-Abnormally dangerous activities
-Supplying of a product in a defective condition unreasonably dangerous
Does D have any defense? - Comparative Negligence & Assumption of Risk

Question 5

Is contributory negligence a defense for strict liability?

Answer 5

NO

Question 6

Intentional Infliction of Emotional Distress - Requisite Intent

Answer 6

Intentional OR Recklessness

Intentional - D acts with the desire to cause severe emotional distress OR knows with substantial certainty that such severe emotional distress is certain to occur

Recklessness - D acts in conscious disregard of a high degree of probability that emotional distress will follow.

Question 7

Intentional Infliction of Emotional Distress - Extreme and Outrageous Conduct

Answer 7

Conduct that exceeds all bounds tolerated by civilized society

Offensive/insulting language is not enough EXCEPT

(1) When D is a common carrier/innkeeper;
(2) D knows of P’s particular sensitivity
(3) D is an authority figure using racial/ethnic slurs against a subordinate

Question 8

Intentional Infliction of Emotional Distress - Severe Emotional Distress

Answer 8

Distress must be greater than a reasonable person would be expected to endure.

Physical injury/manifestation is not required.

Question 9

Trespass to Land - Entry Circumstances

Answer 9

(1) D enters/causes someone or something to enter
(2) D enters the land lawfully but then refuses to leave when required
(3) D fails to remove/eject from P’s land when under a legal duty to do so

Question 10

Trespass to Chattels - Damages

Answer 10

Actual damages is required.
Does not need to be damage to the chattel, but the actual damages would include the

Value of the loss of use of the chattel during the dispossession (fair market rental value) OR the cost to remedy the intermeddling (cost of repair)

Question 11

Trespass to Chattel - Remedies

Answer 11

Cost of repair
Fair Market Rental Value
Punitive damages if D is a particularly bad actor
Replevin

Question 12

What type of force to eject a trespasser after asking them to leave?

Answer 12

Reasonable force

Question 13

Recapture of Chattels

Answer 13

An owner of wrongfully taken chattel may take prompt action and use reasonable, non-deadly force to recover the chattel from the wrongdoer.

Person seeking recapture needs to request its return first OR [request is dangerous/futile and D is in hot pursuit]

Question 14

Defense to Intentional Tort - Implied Consent

Answer 14

Reasonable person interprets P’s conduct as evidencing permission to act

Question 15

Defense to Intentional Tort - Consent as a Matter of Law

Answer 15

Found in the following circumstances when P is unable to consent:

(1) Emergency action is necessary to prevent his death/serious injury
(2) Reasonable person would be expected to consent under the circumstances; and
(3) No reason exists to believe that P would not consent

Question 16

Defense to Intentional Tort - Mistaken Consent

Answer 16

Most jurisdictions, P cannot consent to a crime.

Consent is not effective (negated) P is mistaken about the nature/consequences of D’s act and D is aware of the mistake.

Question 17

Necessity

Answer 17

D is permitted injure P’s property if it is reasonably necessary to avoid a substantially greater harm to public, self, or D’s property

Question 18

Self-Defense

Answer 18

D honestly and reasonably believes that D used reasonable force to prevent P from engaging in an imminent and unprivileged attack.`

Question 19

Negligence - Duty

Answer 19

D has a legal duty to act as an ordinary, prudent, reasonable person taking precaution against unreasonable risk of injury to others

Question 20

Negligence - Who does D owe to?

Answer 20

Only to a foreseeable P – those persons inside the geographic zone of danger at the time of D’s negligence

Question 21

Negligent Entrustment

Answer 21

When D gives something dangerous to someone who D knows, or should know, is not competent to handle.

Question 22

Duties Owed when D is a Governmental Entity

Answer 22

(1) When D is acting in a proprietary function (private party) –> Same duty owed as if D was a private party
(2) When D is acting in a discretionary function (using judgment and allocating resources / passing policy) –> NO DUTY
(3) When D is acting in a ministerial function (setting up stop signs) –> D has a duty to not act negligently once D has undertaken to tact

Question 23

Public Duty Doctrine

Answer 23

Courts find that police/firefighters owe no duty for failing to provide an adequate response, unless

(1) special relationship between P and the public agency
(2) Agency has increased the danger beyond what would otherwise exist

Question 24

When D is a landowner, landlord, utility or government entity - Duty Owed to Invitees

Answer 24

To invitees (enter for the owner’s benefit, shop, or business)

(1) reasonable care in operations AND
(2) must warn of (or make safe) dangerous known-but-concealed conditions
(3) Duty to make reasonable inspections to find and make safe non-obvious dangerous conditions

Question 25

When D is a landowner, landlord, utility or government entity - Duty Owed to Licensees

Answer 25

Licensees = Social Guest (1) Reasonable care (2) Must warn of known concealed dangers No duty to Cure

Question 26

When D is a landowner, landlord, utility or government entity - Duty Owed to Undiscovered Trespasser

Answer 26

NO DUTY

Question 27

When D is a landowner, landlord, utility or government entity - Duty Owed to Anticipated Trespasser

Answer 27

Duty to avoid infliction of wanton or willful harm Warn of (or make safe) highly dangerous artificial conditions that the landowner knows of

Question 28

Attractive Nuisance Doctrine

Answer 28

Child trespassers --> Landowner has a duty of reasonable care and to warn of known, concealed dangers. Prerequisites: (1) Child is too young to appreciate the danger (2) D knows, or has reason to know, of trespass (3) D knows of the dangerous condition (4) Condition is artificial (5) Risk of harm outweighs the expense of making the condition safe

Question 29

Landowners - Duty owed to P on Adjacent Land

Answer 29

Artificial Condition --> Duty of reasonable Care Natural Condition --> No duty except for trees in urban areas

Question 30

Landlord's Duty to Tenants

Answer 30

Not liable unless (1) Common areas over which LL retains control (2) Negligent repairs (3) At time of the lease, LL knows of a concealed dangerous condition; (D MUST WARN OF LATENT DEFECTS) OR (4) LL knows that T is going to hold property open to the public

Question 31

What is the standard of care that D owes to not be negligent?

Answer 31

Reasonable Prudent Person under the same or similar circumstances Objective standard, but takes into account physical conditions (i.e., blind, deaf, amputee) & emergency situations not of D's own making

Question 32

Negligence Per Se

Answer 32

When D's conduct also violates a statute that does not provide for civil liability, (i.e., criminal statutes), D breached a duty to P. P must still prove proximate cause, damages, etc. Applies if (1) Statute's purpose is to prevent the type of harm P suffered; AND (2) P is in the class of persons the statute seeks to protect EXCEPTIONS (1) When compliance with the statute would have been more dangerous than violating it. (2) Compliance was impossible (3) Licensing statutes --> Not having a valid driver's license is not negligence per se

Question 33

Standard of Care for Professionals

Answer 33

Custom Physicals required to possess and use the knowledge, skill, and training of other physicians in good standing in the relevant geographic community Specialists - National standard General practitioners - locality standard Lawyers, Architects, and Accountants - Complies with custom

Question 34

Lack of Informed Consent (Doctors) - Duty to Disclose

Answer 34

Traditional: Risks that are customarily divulged New Trend - All material risks that would a reasonable patient would want to know in deciding whether to undergo the procedure. Failure to divulge = malpractice IF P can show that P would have refused procedure if the risk was divulged

Question 35

Res Ipsa Loquitur

Answer 35

Used to show breach P must show that (1) This sort of thing typically doesn't occur absent negligence; (2) D is probably the responsible party b/c D had control over the instrumentality of harm; and (3) P did not contribute to the injury

Question 36

How can P prove actual causation?

Answer 36

But-For TEST: P shows that, more likely than not, but for D's negligence, P would not have been injured. If multiple Ds --> Each D is deemed an actual cause if their individual action was a substantial factor in bringing about the injury

Question 37

What is proximate cause?

Answer 37

The injury must have been a foreseeable result of the breach. The type of harm was foreseeable. No superseding cause.

Question 38

Superseding Cause

Answer 38

Unforeseeable, intervening force that breaks the chain of causation between the initial wrongful act and the ultimate injury If dependent (natural reaction) to D's wrongful acts, then it's foreseeable and not a superseding cause. Criminal acts are usually superseding causes UNLESS (1) D should have anticipated the criminal act; OR (2) D's conduct makes the criminal act more likely

Question 39

Are punitive damages available for negligence?

Answer 39

NO, unless D acts more culpable than negligence (i.e., willful, malicious, or reckless) Wealth then becomes a relevant factor in calculation. Capped at 10% of the compensatory damages because of the Due Process Clause

Question 40

Is medical malpractice foreseeable?

Answer 40

ALWAYS

Question 41

Collateral Source Rule

Answer 41

Just because P has insurance, it does not mean that D does not have to pay.

Question 42

What is the default comparative/contributory negligence rule?

Answer 42

PURE Comparative Negligence/Fault--> P's negligence will reduce P's recoverable damages by the percentage of his own fault.

Question 43

Contributory Negligence

Answer 43

P is barred if P contributed to his injury UNLESS (1) D had the last opportunity to avoid the accidence [last clear chance doctrine -- usually the wrong answer] (2) D was reckless

Question 44

Partial Comparative Negligence

Answer 44

If P is 50% or more at fault, then P's claim to recovery is barred. If P is < 50% at fault, then damages are reduced by the percentage of P's fault.

Question 45

Assumption of Risk

Answer 45

Defense to Negligence Applies if P voluntarily assumed a known risk. Recovery will be barred or reduced.

Question 46

Firefighter Rule

Answer 46

If P is a professional rescuer, and is injured due to an inherent risk in that job, P cannot recover in negligence against the person who created the harm Different for Good Samaritans, who can sue.

Question 47

Avoidable Consequences

Answer 47

P has a duty to take reasonable steps after injury to not increase/exacerbate

Question 48

What if animals trespass and it results in property damage/

Answer 48

Animal's owners are strictly liable, if it's reasonably foreseeable

Question 49

Abnormally Dangerous Activity

Answer 49

As long as D was involved and the activity caused the harm, D is strictly liable for the abnormally dangerous activity, which is when: (1) There's a high risk of serious harm to others; (2) D creates a foreseeable and highly significant risk of physical harm, even when exercising reasonable care (3) The activity is not a commonly undertaken activity in the community But P must still be injured by the risk that makes the activity dangerous.

Question 50

Strict Products Liability

Answer 50

(1) Product was defective when it left the hands of D (2) Product was not altered when it reached P (3) Product caused an injury to P when it was being used in an intended OR unintended but foreseeable use; AND (4) D is a commercial supplier who routinely deals in goods of this type Recovery for personal injury and property damage is allowed. Recovery for ONLY economic loss is not allowed.

Question 51

Warning

Answer 51

1% risk of severe harm or death --> should warn 1% risk of minor harm --> should not warn unless very high

Question 52

Defenses to Strict Products Liability

Answer 52

(1) Misuse - P use of the product is neither intended nor foreseeable (2) Alteration - Employer removes safety devises to increase efficiency (3) Assumption of Risk - P used the product with knowledge of the risk

Question 53

Products Liability - Negligence

Answer 53

(1) Duty? -- Product suppliers owe a duty to all foreseeable users. D must act as a reasonably prudent supplier would for the type of product. (2) Breach? -- A breach will be found if a supplier's negligence results in a defective product (3) Damages - Suppliers are also liable for all foreseeable misuses of the product. Otherwise, all other elements of negligence must be met. All negligence defenses apply

Question 54

If the only harm is to the product

Answer 54

P can only sue a claim for warranty

Question 55

Warranty of Merchantability

Answer 55

All goods sold by a merchant must be fit for their ordinary purpose Requires privity and notice Can be disclaimed by contract

Question 56

Defenses to Nuisance

Answer 56

Coming to the nuisance (used to be absolutely defense but modern law says its just a factor) Statutory Compliance

Question 57

Private Nuisance - Factors for Balancing substantial/unreasonable interference

Answer 57

(1) Value of D's activity (2) Whether there are alternatives (3) Nature of locality (4) Extent of P's injury (5) Who was there first? Remember - must be offensive, inconvenient, or annoying to a reasonable person

Question 58

Defamation

Answer 58

(1) False defamatory statement (tends to harm the reputation of another) (2) Of and concerning the Plaintiff & made by D (3) Publication by D to a thirrd-party (4) Damages

Question 59

Slander

Answer 59

Type of defamation Oral defamatory statement To recover, P must prove (1) special damages (specific economic losses that flow from the slander). OR (2) reputation damages

Question 60

Slander Per Se

Answer 60

(1) Slander which imputes to P behavior/characteristics that are incompatible with P's business, profession, office (2) Slander that imputes to P commission of a crime of moral turpitude (3) Allegations that P has a loathsome disease (4) Falsely imputing lack of chastity to woman

Question 61

Libel

Answer 61

Defamation in a relatively permanent form Reputational harm is presumed, but damages must be proven. Requires special damages (specific economic losses that flow from the slander) if (1) the statement doesn't fall within one of the slander per se categories AND (2) Defamatory nature is not clear on its face

Question 62

Defamation - Common Law Privileges - Truth

Answer 62

Truth --> P must prove falsity as part of their case

Question 63

Defamation - Common Law Privileges - Absolute Privilege

Answer 63

Absolute Privilege --> Complete Defense Applies to (1) statements made in judicial proceedings, (2) between spouses, (3) by executive branch officials, and (4) during legislative proceedings The absolute privilege ends if someone repeats in a non-privileged situation

Question 64

Defamation - Common Law Privileges - Qualified Privilege

Answer 64

Qualified/Conditional Privilege --> Applies when the (1) statement is conditionally privileged and (2) privilege is not abused (did not act with malice) Statement is conditionally privileged if: (1) Comments were made in communication that appears reasonably necessary to advance/protect D's own interests (2) Comments communicated on a matter of interest to the recipient (3) Comments concerned a matter of public interest to an individual empowered to protect that public interest

Question 65

Defamation - Public Official

Answer 65

Must also prove actual malice (recklessly disregarded the truth/falsity or knowledge of falsity) by clear and convincing evidence

Question 66

Defamation - Private Individual

Answer 66

Public Concern? --> D needs to have been negligent +malice for presumed/punitive damages Private Concern? --> Does not need to show actual malice for presumed/punitive damages

Question 67

Invasion of Privacy - Intrusion into Seclusion

Answer 67

D unreasonably intrudes into P's seclusion (zone of privacy) Intrusion must be highly objectionable to a reasonable person (e.g., wiretapping) Damages include compensatory damages and if pad enough, punitive damages.

Question 68

Invasion of Privacy - Commercial Appropriation of Likeness or Identity

Answer 68

Unauthorized use of P's name, voice, or likeness for D's commercial advantage Newsworthiness purpose is exempt.

Question 69

Invasion of Privacy - Public Disclosure of Private True Facts

Answer 69

D caused (1) widespread dissemination (2) of truthful private information (3) that is highly objectionable to a reasonable person. Newsworthiness is a defense unless actual malice is present. If a lot of time has passed, then it's less relevant. If D gets the information from public records, then D can't be liable for sharing that information.

Question 70

Invasion of Privacy - Portrayal in a False Light

Answer 70

D causes (1) widespread dissemination; (2) of P's beliefs, thoughts, or actions, (3) in a false light (4) that would be highly objectionable to a reasonable person. Public figure or matter of public concern --> must show actual malice.

Question 71

Intentional Misrepresentation

Answer 71

(1) Misrepresentation of a material fact by D (2) D knew the statement was false (3) D intended to induce P (4) Actual and reasonable reliance by P (5) Damages Misrepresentation can be a false, affirmative assertion of fact or concealment. Failure to disclose isn't sufficient unless: (1) there's a fiduciary relationship (2) Ambiguous/misleading statement causes reliance (3) D makes an assertion, believing it to be true, and then discovers it was false and fails to disclose (4) D makes a false assertion not intending reliance but discovers that P relied; or (5) P reasonably expects there would be disclosure

Question 72

Intentional Misrepresentation - Required Mental State

Answer 72

D knew statement was false or was reckless as to veracity D intended P (or class of P) to rely

Question 73

Negligent Misrepresentation

Answer 73

Generally, no duty to avoid negligent infliction of pure economic loss. (1) When there's a special relationship, or if D knows they're acting for the benefit of a third party, and they rely and suffer economic losses (2) If knows that they are acting for the benefit of a third party, and the third party relies and suffers economic loss.

Question 74

Interference with Prospective Economic Advantage

Answer 74

D knew of prospective economic advantage and acted to interfere with it for improper motives Legitimate competitive activity is permitted.

Question 75

Injurious Falsehood

Answer 75

(1) False statement (2) Actual malice (3) Made to another or published (4) Caused specific economic injury to P Not about reputational harm --> more about economic loss.

Question 76

Parents Liability for their Children

Answer 76

Parents are not generally vicariously liable for torts committed by their child, absent a statute saying otherwise Parents can be liable though for their own negligence, negligent supervision, or entrustment.

Question 77

Survival Statute

Answer 77

Estate of decedent can bring a tort action Death of the victim does not abate tort action.

Question 78

Wrongful Death Statutes

Answer 78

Heirs of the deceased or a personal representative of victim's estate can bring an action for wrongful death for their own losses resulting from the victim's death

Question 79

Loss of Consortium

Answer 79

When spouse is killed, surviving spouse can bring a claim for intangible injuries of loss, comfort, companionship, etc.

Question 80

Economic Torts

Answer 80

(1) Intentional misrepresentation (2) Negligent misrepresentation (3) Interference with prospective economic advantage (4) Injurious falsehood