Torts

Question 1

What are the elements of Battery?

Answer 1

When there is:

1. An intentional,
2. Harmful or offensive contact,
3. With the plaintiff’s person.

Intentional acts are done with the desire to bring about harm OR knowing the harm is substantially certain to occur.

Bodily harm is the physical pain, illness, or impairment to another’s body.

Priority: HIGH

Question 2

What are the elements of Assault?

Answer 2

When there is:

1. An intentional act,
2. That causes the plaintiff to be placed in reasonable apprehension (aware of the act and believes that the defendant is able to commit it),
3. Of imminent harm or offensive contact.

Priority: Medium

Question 3

When is an act deemed Intentional for the tort of Assault?

Answer 3

If it’s done:

• For the purpose of causing apprehension; OR
• With knowledge to a substantial certainty that such apprehension will result.

Priority: Medium

Question 4

When is a defendant liable for False Imprisonment?

Answer 4

When he:

1. Intentionally acts (purposely or knowing that it’s substantially likely to occur),
2. To restrain the plaintiff to fixed boundaries, AND
3. The plaintiff is conscious of the confinement OR is harmed by it.

Priority: Medium

Question 5

What are the elements of Intentional Infliction of Emotional Distress?

Answer 5

1. The defendant acted intentionally or recklessly;
2. Their conduct was extreme and outrageous;
3. The act caused extreme emotional distress; AND
4. The plaintiff actually suffered severe emotional distress.

Priority: Medium

Question 6

When is a defendant liable for Trespass to Land?

Answer 6

1. When he intentionally,
2. Either:

• Enters the land in possession of another;
• Causes an object/third-person to enter;
• Remains on the land; OR
• Fails to remove an object he is under a duty to remove.

*Intent to trespass is NOT required.

Priority: Medium

Question 7

When is a person liable for Trespass to Chattels?

Answer 7

When he:

1. Intentionally interferes with another’s personal property,
   * *AND**
2. The amount of damage is small.

Priority: Medium

Question 8

When is a person liable for Conversion?

Answer 8

When he:

1. Intentionally interferes with another’s personal property,
   * *AND**
2. The amount of interference is substantial.

*Defendant will be liable for full market value of item.

Priority: Medium

Question 9

Under the Doctrine of Transferred Intent, how can the intent to harm one party be transferred?

Answer 9

It’s transferred when:

1. The defendant had the intent to commit a tort against one particular individual; AND
2. If in the act of trying to accomplish that tort either:
   
   • commits a different tort against that person; OR
   • another party is injured.

*Only applies to Battery, Assault, False Imprisonment, Trespass to Land, & Trespass to Chattels.

Priority: Medium

Question 10

Intentional Tort Defenses

Consent is a defense to intentional torts, and can be express, apparent, or implied by law.

Apparent Consent vs. Implied by Law Consent

Answer 10

Apparent Consent: When words or conduct are reasonably understood to be intended as consent (such as customary practice or a person’s failure to object).

Implied by Law Consent: Occurs in special circumstances, such as medical emergencies.

Priority: HIGH

Question 11

Intentional Tort Defenses

What is the defense of Privilege?

Answer 11

It is conduct that under ordinary circumstances would subject the actor to liability, BUT is excused under the circumstances.

Priority: HIGH

Question 12

Intentional Tort Defenses

What are the different Privilege defenses?

Answer 12

Privilege includes:

1. Necessity (acts were necessary to prevent serious harm).
2. Self-defense/defense of others.
3. Defense of property.
4. Recapture of chattels.
5. Detention for investigation.
6. Privilege to discipline children.
7. Privilege to arrest.

Priority: HIGH

Question 13

What are the elements for a prima facie case of Negligence?

Answer 13

1. A duty owed to the plaintiff by the defendant;
2. A breach of that duty;
3. Causation (the breach was the actual and proximate cause of the plaintiff’s injuries); AND
4. Damages.

Priority: HIGH

Question 14

When will an Affirmative Duty to act arise?

Answer 14

If:

• There is a pre-existing relationship between the parties;
• The defendant put the plaintiff in peril;
• The defendant has undertaken to rescue the plaintiff; OR
• A duty is imposed by law.

Priority: HIGH

Question 15

When is a Rescuer liable for injuries caused to another person?

Answer 15

If they fail to exercise reasonable care, AND:

• The failure increased the risk of harm; OR
• The harm is suffered because of reliance on the person providing the aid.

**A rescuer is liable if the aid is discontinued and the person is left in a worse position.

Priority: HIGH

Question 16

What is the Reasonable Person Standard?

Answer 16

Every person owes a duty to act as a reasonable prudent person would act under similar circumstances.

(A reasonable person takes appropriate measures to avoid foreseeable risks.)

*This duty is owed to ALL foreseeable plaintiffs.

Priority: HIGH

Question 17

What is the Standard of Care for Children?

Answer 17

They are held to a standard of care a hypothetical child of similar age, experience, and intelligence acting under similar circumstances.

*If the child is engaged in an adult activity, they have the duty to act as a reasonable ADULT would act under the circumstances.

Priority: HIGH

Question 18

What is the Standard of Care for Professionals?

Answer 18

A professional owes a duty to act with the knowledge and skill as an average member of that profession practicing in a similar community.

*A specialist is held to the care and skill of an average member of the profession practicing the specialty.

Priority: HIGH

Question 19

What is the Standard of Care for Landowners?

Answer 19

They have to exercise reasonable care to ALL entrants upon their land, and take appropriate measures to avoid foreseeable risks.

*Some states determine the duty of care required based on the type of entrant (trespasser, licensee, invitee).

Priority: HIGH

Question 20

Undiscovered Trespasser vs. Anticipated Trespasser

Answer 20

Undiscovered Trespasser: NO duty is owed by the landowner.

Anticipated Trespasser: The landowner must use reasonable care in operations on the property AND warn of highly dangerous artificial conditions that they know of.

Priority: HIGH

Question 21

What is the Attractive Nuisance Doctrine?

Answer 21

For child trespassers, landowners must make the premises reasonably safe or warn of hidden dangers on their land.

Landowners are held liable for harm if:

1. They know the condition is likely to cause death;
2. They know that children frequent the area;
3. That children are unlikely to discover the condition;
4. The risk of harm outweighs the expense of repair; AND
5. They fail to exercise reasonable care in eliminating the danger.

Priority: HIGH

Question 22

Licensee vs. Invitee

Answer 22

Licensee: Landowner must exercise reasonable care AND warn of (make safe) dangerous conditions the owner knows of but not apparent to the guest.

Invitee: Landowner owes all the duties he would to a Licensee, PLUS the duty to make reasonable inspections of the property to find/make safe non-obvious conditions.

Priority: HIGH

Question 23

When does Negligence Per Se apply?

Answer 23

When:

1. The statute’s purpose is to prevent the type of harm that the plaintiff suffered; AND
2. The plaintiff is in the class of persons the statute seeks to protect.

*If established, a violation of the statute is deemed a breach of the duty of care owed.

Two Exceptions: (1) When compliance with the statute would be more dangerous; (2) Compliance is impossible.

Priority: HIGH

Question 24

Under the Traditional Test for Res Ipsa Loquitur, what must the plaintiff show?

Answer 24

1. That the injury typically does not occur in the absence of negligence;
2. The instrumentality (thing/object) which caused the injury was in the defendant’s exclusive control; AND
3. That Plaintiff not cause or contribute to the injury.

*If applicable, the breach element is established.

Priority: HIGH

Question 25

Under the Restatement (Second) Test for Res Ipsa Loquitur, what must the plaintiff show?

Answer 25

1. That the event typically does not occur in the absence of negligence;
2. Other responsible causes are sufficiently eliminated by the evidence (incl. plaintiff & third persons); AND
3. The negligence is within the scope of duty the defendant owed the plaintiff.

*If applicable, the breach element is established.

Priority: HIGH

Question 26

Actual Cause vs. Proximate Cause

Answer 26

Actual Cause: The “but for” cause.

Under the substantial factor test → something that is a substantial factor in bringing about the injury IS an actual cause.

Proximate Cause: The legal cause, which means the injury MUST have been a foreseeable result of the breach.

Priority: HIGH

Question 27

What is an Intervening Cause?

Answer 27

Any act that occurs AFTER the defendant’s breach that contributes to the harm.

*It absolves the defendant of liability if it resulted in an unforeseeable/unexpected injury.

Priority: HIGH

Question 28

What is the Eggshell Plaintiff Rule?

Answer 28

A tortfeasor takes his victim as he finds him.

The tortfeasor is liable for ALL harm a plaintiff suffers as a result of his conduct, even if plaintiff suffered from a pre-existing condition making the harm greater.

Priority: HIGH

Question 29

Pure Comparative Negligence

vs.

Partial Comparative Negligence

vs.

Contributory Negligence

Answer 29

Pure: P’s negligence/assumption of risk will NOT bar recovery. P’s damages are reduced by % at fault.

Partial: If less than 50% at fault, then P’s damages are reduced by % at fault. If over 50% at fault, then P’s claim is barred.

Contributory: Plaintiff CANNOT recover if he contributed to his own injury in any amount. P’s claim is barred.

Exceptions → when the defendant had the last opportunity to avoid injury OR was reckless.

Priority: HIGH

Question 30

What are the 3 instances a plaintiff can recover for Negligent Infliction of Emotional Distress?

Answer 30

1. Near Miss Case: D’s negligence, created foreseeable risk of injury, P is in zone of danger, and P manifests physical symptoms.
2. Bystander Claim: D’s negligence, P is contemporary witness to injury to close family member, and P manifests physical symptoms.
3. Rare Egregious Situations: Pre-existing relationship between P and D, and negligent act foreseeably causes distress.

Priority: HIGH

Question 31

Vicarious Liability

Employee

vs.

Independent Contractor

Answer 31

Employee: Employer controls manner/means of the employee’s performance of work. Employer IS vicariously liable for negligent acts of employee (within scope or employment).

Independent Contractor: A person NOT controlled or subject to control with respect to performance (may or may not be an agent). Principal/employer is generally NOT liable for torts committed by a contractor.

Priority: HIGH

Question 32

Vicarious Liability

What determines whether a person is an Independent Contractor or Employee?

Answer 32

Whether the principal had the right to control the manner and method in which the job is performed.

(If the principal had substantial control, it’s likely the person will be deemed an employee).

Priority: HIGH

Question 33

Vicarious Liability

Under respondeat superior, an employer is vicariously liable for an employee’s negligent act if the employee was acting within the scope of employment.

When is an employee deemed to be acting within that scope?

Answer 33

When:

• Performing work assigned by the employer; OR
• Engaging in a course of conduct subject to the employer’s control.

** Conduct is not outside the scope merely because an employee disregards the employer’s instructions.

Priority: HIGH

Question 34

Vicarious Liability – Respondeat Superior

Acts Within Scope of Employment

vs.

Acts Outside Scope of Employment

Answer 34

Within Scope: When preforming work assigned by the employer OR engaging in conduct subject to the employer’s control.

Outside Scope: Tort occurs within an independent course of conduct AND is not intended by the employee to serve any purpose of the employer.

Priority: HIGH

Question 35

Vicarious Liability

What causes an employee’s intentional torts to be considered within the scope of employment?

Answer 35

The Act was:

• specifically authorized by the employer;
• driven by a desire to serve the employer; OR
• the result of naturally occurring friction from the type of employment.

Priority: HIGH

Question 36

Vicarious Liability

In what situations is a principal still liable despite the doctrine of respondeat superior being inapplicable?

Answer 36

When:

1. The principal intended the conduct or consequences;
2. The principal was negligent in selecting, training, retaining, supervising, or controlling the agent;
3. The conduct involved a non-delegable duty to an injured person with whom they had a special relationship; OR
4. The agent had apparent authority, the agent’s actions taken with apparent authority constitute the tort (or enable the agent to conceal it), and a third-party reasonably relied on that authority.

Priority: HIGH

Question 37

Vicarious Liability

When will a principal be liable for torts committed by an independent contractor?

Answer 37

If:

• The contractor is engaged in an inherently hazardous activity;
• The duty owed by the principal is non-delegable; OR
• Through the doctrine of estoppel:

The principal holds the contractor out as his agent to a third-party, they reasonably relied on the agent’s skill, and the third-party suffered harm as a result.

Priority: HIGH

Question 38

When is a defendant entitled to Indemnification?

Answer 38

When the defendant is a passive tortfeasor AND seeks to assert his claim against an active tortfeasor.

The defendant is entitled to recover the FULL amount he paid (or may have to pay) to the plaintiff from the active tortfeasor.

*Indemnification is available in vicarious liability situations or by contract.

Priority: Medium

Question 39

When is a defendant entitled to Contribution?

Answer 39

A joint tortfeasor may seek contribution from other joint tortfeasors if he pays more than his percentage share of liability.

*The amount recoverable is based on PURE comparative fault – a defendant CANNOT recover from another more than that person’s percentage of fault.

Priority: Medium

Question 40

What is the Doctrine of Alternative Liability?

Answer 40

It allows the jury to find ALL defendants liable if:

1. Multiple defendants are deemed negligent,
2. But it’s unclear which one caused the plaintiff’s injury.

Priority: HIGH

Question 41

What is the Doctrine of Joint Enterprise?

Answer 41

It allows the negligence of one defendant to be imputed to other defendants if:

1. Multiple defendants were engaged in a common project or enterprise; AND
2. All defendants made an explicit/implied agreement to engage in tortious conduct.

Priority: HIGH

Question 42

What is the Doctrine of Market Share Liability?

Answer 42

ALL manufacturers are liable to their proportional share of the market when the following factors are present:

1. All the named Ds are potential tortfeasors;
2. The harmful products are identical and share the same defective qualities;
3. P is unable to identify which D caused the injury; AND
4. Substantially all of the manufacturers that created the defective products during the relevant time period are named as Ds.

Priority: HIGH

Question 43

Defamation

What are the elements of Defamation?

Answer 43

1. A false defamatory statement,
2. Of and concerning the plaintiff made by the defendant,
3. Publication by a defendant to a third party, AND
4. Damages

Priority: Medium

Question 44

Defamation

What are the four Slander Per Se categories?

Answer 44

1. Impugning the business integrity of the plaintiff.
2. A statement of unchastity about an unmarried woman.
3. A statement that the plaintiff had/has a loathsome disease.
4. Attributing a crime of moral turpitude to the plaintiff.

Priority: Medium

Question 45

Defamation

Who is deemed a Public Figure?

What heightened standard applies if plaintiff is a Public Figure or Public Official?

Answer 45

Public Figure = Either (a) injected himself into a public controversy; OR (b) having achieved widespread notoriety.

If person is a Public Figure or Official, then a heightened defamation standard applies.

P must also prove: Actual malice – D spoke with recklessness or knowledge of falsity.

Priority: Medium

Question 46

Defamation

If plaintiff is a Private Figure on a Matter of Public Concern, what standard applies?

Answer 46

Plaintiff MUST ALSO PROVE:

That the speaker was negligent.

Priority: Medium

Question 47

What are the Invasion of Privacy torts?

Answer 47

1. Misappropriation of Name or Picture.
2. False Light.
3. Intrusion of Privacy.
4. Public Disclosure of Private Facts.

Priority: Medium

Question 48

What are the elements of Misappropriation of Name or Picture?

Answer 48

When defendant:

1. Uses plaintiff’s name or likeness,
2. For defendant’s commercial advantage.

*Newsworthiness is a defense.

Priority: Medium

Question 49

What are the elements of False Light?

Answer 49

When defendant:

1. Causes widespread dissemination,
2. Of plaintiff’s beliefs, thoughts, or actions,
3. In a false light,
4. That would be highly objectionable to a reasonable person.

*If plaintiff is a public figure → must show actual malice.

Priority: Medium

Question 50

What are the elements of Intrusion of Privacy?

Answer 50

When:

1. D intrudes into the private affairs of P;
2. P has a reasonable expectation of privacy; AND
3. The intrusion is highly objectionable to a reasonable person.

Priority: Medium

Question 51

What are the elements of Public Disclosure of Private Facts?

Answer 51

When defendant:

1. Caused widespread dissemination,
2. Of truthful private information,
3. That would be highly objectionable to a reasonable person.

*Newsworthiness is a defense unless actual malice is present.

Priority: Medium

Question 52

What are the elements of Intentional Interference with Business Relations?

Answer 52

1. There was a contract or business expectancy;
2. The defendant knows of the contract/expectancy;
3. The defendant intentionally induces another party to breach or terminate the contract/relationship;
4. A breach occurs; AND
5. Plaintiff suffered damages.

Priority: Medium

Question 53

What are the elements for Intentional Misrepresentation?

Answer 53

Plaintiff must show:

1. Misrepresentation of material facts by the defendant;
2. The defendant knew the statement was false;
3. Intent of the defendant to induce the plaintiff;
4. Actual and reasonable reliance by the plaintiff; AND
5. Damages.

Priority: Medium

Question 54

What are the elements for Negligent Misrepresentation?

Answer 54

Plaintiff must show:

1. A misrepresentation by the defendant;
2. Supplied for the guidance of others in a business transaction;
3. The defendant knew that the information was supplied to guide the plaintiff in his business transactions;
4. The defendant was negligent in obtaining/communicating the false information;
5. Actual and reasonable reliance by the plaintiff; AND
6. The false info proximately caused damages.

Priority: Medium

Question 55

Public Nuisance vs. Private Nuisance

Answer 55

Public Nuisance: (1) an unreasonable interference, (2) with the health, safety, or property rights, (3) of the community.

To recover the injured party must show ACTUAL damages.

Private Nuisance: (1) a substantial and unreasonable interference, (2) with a person’s use/enjoyment of her property.

Priority: Medium

Question 56

A defendant engaging in an Abnormally Dangerous Activity is subject to strict liability.

What is an Abnormally Dangerous Activity?

Answer 56

An activity that:

1. Is not of common usage in the community; AND
2. Creates a foreseeable and highly significant risk of physical harm (even when reasonable care is exercised).

Priority: Medium

Question 57

What are the elements for Strict Products Liability?

Answer 57

1. The product was defective (manufacturing defect, design defect, failure to warn);
2. The product was not altered when it reached the plaintiff;
3. The product caused an injury when it was being used in an intended use (or unintended foreseeable use); AND
4. The defendant is a commercial supplier who routinely deals in goods of this type.

Priority: HIGH

Question 58

What 3 theories are available to prove Strict Products Liability?

Answer 58

Manufacturing Defect: Product differs from the intended design AND is more dangerous than if made properly.

Failure to Warn:Plaintiff was not warned of the risks regarding use, which are not obvious to an ordinary user.

Design Defect: There was a way to build the product that was safer, more practical, AND at a similar cost.

Priority: HIGH

Question 59

What is the definition of a Commercial Supplier?

Answer 59

Any person/entity who is engaged in selling goods of the type (routinely sells such goods).

*A strict products liability suit may ONLY be brought against a commercial supplier of goods.

Priority: HIGH

Question 60

Products Liability – Breach of Warranty

What is the Implied Warranty of Merchantability?

Answer 60

It requires that ALL goods sold by a merchant be fit for their ordinary purpose.

*The only issue to determine is whether the product was merchantable when sold.

Priority: Medium

Question 61

Products Liability – Breach of Warranty

When is an Implied Warranty of Fitness for a Particular Purpose created?

Answer 61

When:

1. A seller knows or has reason to know of the buyer’s particular purpose for which the goods are required; AND
2. The buyer relies on the seller’s skill/judgment to select suitable goods.

Priority: Medium

Question 62

Products Liability – Breach of Warranty

When is an Express Warranty created?

Answer 62

When:

1. A seller makes an affirmation of fact, promise, or description, OR provides a sample;
2. Which relates to the goods; AND
3. It becomes part of the basis of the bargain.

Priority: Medium