Torts

Question 1

Elements of Battery

Answer 1

1. Intent to cause contact
2. Unconsented contact that is harmful or offensive
3. Of the plaintiff’s person or effects

Question 2

Elements of Assault

Answer 2

1. Intent to cause apprehension/anticipation of contact
2. Apparent present ability (to touch/contact)
3. Threatening gesture (usually) that causes
4. Well-founded (reasonable) anticipation of unconsented imminent contact

Question 3

Elements of False Imprisonment

Answer 3

1. Intent to Confine
2. Unconsented confinement within boundaries fixed by defendant, without reasonable exit apparent
3. By unreasonable force, threat of force, or assertion of legal authority
4. Knowledge of confinement or harm

Question 4

Elements of IIED

Answer 4

1. Intent (or recklessness) to cause emotional distress
2. Extreme and outrageous conduct
3. Causation of emotional distress
4. Severe emotional distress

Question 5

Elements of Trespass to Land

Answer 5

1. Affirmative Act
2. With Intent (I.E. Taking the step - Mistake is not a defense)
3. That invades the possessory interest of another in her land

Question 6

Elements of Trespass to Chattels

Answer 6

1. Act by defendant
2. With Intent
3. Minor invasion of Plaintiff’s chattel interest (dispossession or intermeddling)
4. Causation
5. Damages (where only intermeddling occurs)

Question 7

Actions for Intentional Interference with Personal Property

Answer 7

1. Major Interference - Conversion

2. Minor Interference - Trespass to Chattels

Question 8

Elements of Conversion

Answer 8

1. Act by Defendant
2. With Intent
3. Substantial Invasion of Plaintiff’s Chattel
4. Causation

Question 9

Factors to Consider for Conversion

Answer 9

a) Extent of actor’s exercise of dominion or control
b) Actor’s intent to assert a right inconsistent with the plaintiff’s right to control
c) Actor’s good faith
d) Extend and duration of resulting interference
e) Harm done to chattel
f) Inconvenience and expense caused

Question 10

Examples of Conversion

Answer 10

• Theft (substantial dispossession)
• Destruction or significant, material alteration
• Misdelivery of chattel
• Purchase/receipt of stolen property
• Sale/disposal of stolen property
• Refusal to surrender chattel on demand
• Unauthorized use that causes substantial interference

Question 11

Three Types of Consent

Answer 11

1. Actual Consent - Consent in Fact
2. Apparent Consent - Based on appearances (objective manifestations)
3. Implied Consent - Not consent at all, policy determination that invasion should not be actionable

Question 12

Elements of Self-Defense

Answer 12

1. Anyone other than an aggressor
2. Who reasonably anticipates immediate physical harm
3. May use reasonable force in self-defense

Question 13

Elements of Defense of Others

Answer 13

1. Anyone
2. Who believes force is necessary to protect another
3. May use reasonable force in doing so

Question 14

Elements of Defense of Property

Answer 14

1. A possessor

2. May use reasonable non-deadly force to defend property

Question 15

Elements of Recapture of Chattels

Answer 15

1. A possessor
2. Wrongfully dispossessed by fraud or force
3. May use reasonable non-deadly force to recapture the chattel
4. If there is prompt discovery, demand, and fresh pursuit

Note: Any mistake destroys the privilege

Question 16

Elements of Shopkeeper’s Privilege

Answer 16

1. A shopkeeper may temporarily detain
2. For purposes of investigation
3. One reasonably suspected of theft
4. In or near the store

Note: A reasonable mistake does not destroy the privilege

Question 17

Elements of Public Necessity

Answer 17

1. Anyone is completely privileged
2. To use reasonable force
3. Actually or apparently necessary
4. To avoid an imminent risk of greater harm
5. To the community or many persons

Note: Necessity must be clearly shown
Note: Reasonable Mistake does not destroy the privilege
Note: Majority rule is that there is no compensation required from D, but there is a split

Question 18

Elements of Private Necessity

Answer 18

1. Anyone is completely privileged
2. To use reasonable force
3. Actually or apparently necessary
4. To avoid the an imminent risk of greater harm
5. To one or a few persons

Note: The actor is liable for actual losses
Note: If the plaintiff resists the assertion of the privilege the privilege becomes absolute and no further compensation is required by the defendant for harm reasonably inflicted thereafter.

Question 19

Authority of Law

Answer 19

If a D is duly commanded or authorized by law to do what he does, he is not liable for it.

Question 20

Discipline

Answer 20

In general, parents or those who stand in a parent’s place have additional privilege

Question 21

Elements of Negligence

Answer 21

1. Duty
2. Breach
3. Causation
4. Damages

Question 22

General Duty Rules

Answer 22

1. You owe everyone a duty of care (to act as a reasonably prudent person
2. Limitations on general rule
   a. No duty to rescue
   b. You cannot recover for pure economic loss
   c. NIED

Question 23

Hand Balancing Test

Answer 23

B < LxP

Conduct is negligent if the BURDEN of prevention is outweighed by the gravity of the LOSS times the PROBABILITY of the harm

Question 24

Elements of Joint Enterprise

Answer 24

1. Agreement, express or implied among the members of the group
2. Common purpose to be carried out by the group
3. Community of pecuniary interest in that purpose, among the members
4. An equal right to a voice in the direction of the enterprise, which gives an equal right of control

Question 25

Res Ipsa Loquitur Elements

Answer 25

1. The event ordinarily does not occur in the absence of negligence 2. Facts indicating that the defendant’s conduct, more likely than not, was the cause of the event

Question 26

Negligence Per Se - Considerations

Answer 26

1. Class of person intended to be protected 2. Type of harm intended to be prevented 3. Appropriateness for adoption as standard

Question 27

Proof of Negligence

Answer 27

1. Direct Evidence - Evidence of the fact (e.g., Eyewitness Testimony) 2. Circumstantial Evidence - Evidence from which the fact in question may be inferred (e.g., fingerprints, skid marks)

Question 28

Actual Causation

Answer 28

A factual inquiry into whether the defendant’s conduct precipitated the injury. Conduct is a substantial factor if it was 1. Indispensable (“but for”) or 2. Independently sufficient

Question 29

Proximate Causation

Answer 29

A policy inquiry into whether it is fair to impose liability on a defendant whose conduct was a factual cause.

Question 30

Loss of Chance Doctrine

Answer 30

This doctrine allows a plaintiff to recover damages by showing that the defendant was a substantial factor in causing the plaintiff to lose a significant chance of escaping the harm in question (e.g., death, paralysis, loss of a limb, etc.).

Question 31

Actual Causation

Answer 31

1. But for” Test: works most of the time to show that but for D’s negligence, P would not have been harmed 2. Jointly engaged Tortfeasers – 2 or more Jointly Engaged in negligent conduct (Concert of action) then each D is liable even though only one of them (who can be identified) actually inflicted harm (e.g., drag racing – Bierczynski) 3. Concurrent Causes a. Conduct that combines to cause injury where neither alone would have been sufficient (Hill v. Edmonds) P would not have been injured but for the concurrence. D and 3rd party are but for causes b. Conduct that combines to cause injury where either alone would have been sufficient (Anderson v. Mpls – two fires combine and either alone would cause damage, both sources liable (if negligent) as long as each was a substantial factor). Substantial factor rule: Multiple sufficient causes, both are actual causes 4. Multiple fault/Alternative Liability: Two or more D’s at fault, but only one caused harm, burden shifts to Ds (Summers v. Tice) 5. Enterprise liability – “Industry-wide liability” - Small number of Ds who control risk 6. Market Share Liability – Larger number of Ds (Ex. Sindell)

Question 32

NIED Elements

Answer 32

1. Negligence 2. Severe emotional distress (most courts require physical manifestation) judged by – “normal” standards (no eggshell P rule) 3. Causation of severe mental distress 4. Proof that the plaintiff was the direct victim or a bystander who is entitled to recovery

Question 33

Thing Factors - NIED

Answer 33

1. Closely related to injury victim 2. Present at the scene of the event when it occurs 3. As a result, suffers serious emotional distress

Question 34

Evolution of NIED Claims

Answer 34

* Traditional Rule: Only parasitic damages (mental anguish associated with physical harm) * Impact Rule: First deviation from traditional rule – Impact rule allows P to recover for ED if there was any impact (however slight) – Very few states still follow this * Zone of Danger Rule – “Near Miss” – Most courts allow P to recover for ED if there is physical manifestation (Some courts do not require physical harm) * Foreseeability – A few jurisdictions allow recovery for direct ED beyond the “near miss” if P is foreseeable and suffers severe ED

Question 35

Attractive Nuisance Factors

Answer 35

1. Likelihood that children will be present 2. Unreasonable risk of serious harm 3. Likelihood that children will not appreciate the risk 4. Slight utility of the condition 5. Failure by the possessor to exercise reasonable care

Question 36

Andrews Factors - Proximate Causation

Answer 36

1. Natural and continuous sequence between cause and effect 2. Direct connection between them, without too many intervening causes 3. Is the effect of cause on result not too attenuated? 4. Is the cause likely to produce the result ? 5. Could the result be foreseen 6. Is the result too remote from the cause, and here we consider remoteness in time and space 7. We draw an uncertain and wavering line, but we draw it as best as we can

Question 37

Tunkl Factors - Is Public Interest affected?

Answer 37

1. Business type is generally thought of as suitable for public regulation 2. Party seeking exculpation is performing a service that is often a necessity for some members of the public 3. Party will perform service for any member of the public 4. Party wanting exculpation has more bargaining power 5. Adhesion contract –no way for the public to get negligence protection 6. Person or property put under control of the seller

Question 38

Status of Plaintiff

Answer 38

1. Trespassers No duty of care except for a. Constant Trespass on limited area of land b. Discovered Trespassers 2. Licensees - Persons rightfully upon the land (by reason of consent or privilege) but for their own purposes or as social guests a. Duty to warn of known latent dangers b. Duty to exercise care in active operations 3. Invitees - Persons present on the land for the possessor’s purposes pursuant to an invitation made to the public generally or relating to the possessor’s business interests a. Duty to warn of known latent dangers b. Duty to exercise care in active operations c. Duty to use care to discover and remedy unknown dangers