Torts

Question 1

Prima Facie Case general Elements

Answer 1

(1) Voluntary Act
(2) Intent (Specific - D acted with purpose to cause offensive contact OR General - D knows that consequence is substantially certain to occur)
(3) Causation
conduct was “substantial factor” in bringing the harm.

Question 2

Battery

Answer 2

(1) harmful contact
(2) w/ plaintiff’s person
(3) Causes by D
(4) w/ intent (general or specific)

Question 3

Assault

Answer 3

(1) Reasonable apprehension
(2) of imminent harm or offensive bodily contact
(3) Causes by D
(4) w/ intent (specific or general)

Question 4

intentional infliction of emotional distress

Answer 4

(1) extreme or outrageous conduct
(2) which causes or is substantial factor in causing
(3) severe emotional distress
(4) w/ intent to cause severe emotional distress OR acts with recklessness as to the risk of causing severe emotional distress

Question 5

Cause

Answer 5

caused harm or conduct was substantial factor that caused harm.

Question 6

General Intent

Answer 6

D knows that harm is substantially certain to occur.

Question 7

Trespass to land

Answer 7

(1) Causes or is substantial factor
(2) a physical invasion in P’s real property
(3) w/ Intent (specific or general)

Question 8

Trespass to chattels

Answer 8

(1) Causes or is substantial factor
(2) An interference with the plaintiff’s right of possession in a chattel
(3) w/ intent (specific or general)

Question 9

Conversion

Answer 9

(1) Causes or is substantial factor
(2) an interference with P’s right of possession in chattel
(3) where interference by D deprives P entirely of the use of the chattel
(4) w/ intent (specific or general)

Question 10

Defenses to Intentional Torts

Answer 10

(1) Consent
(2) Self-defense
(3) Necessity

Question 11

Consent (defense to intentional tort)

Answer 11

(1) Consent - Express or implied; BUT must be (valid and D’s conduct did not exceed scope of consent)

Question 12

Self-Defense (intentional torts)

Answer 12

(2) Self-defense - D reasonably believed P was going to harm him or another AND D used reasonably necessary amount of force proportionate to threat

Question 13

Necessity (intentional torts)

Answer 13

(3) Necessity - D enters onto P’s land or interferes with P’s personal property to prevent an injury or some other severe harm
(private necessity - benefit limited ppl = D liable for any damages to P’s property)
P cannot use force to exclude D.
(public necessity - public good = D is not liable for property damage that he caused.)

Question 14

Negligence

Answer 14

(1) D owed a duty to P to conform to a specific standard of care
(2) D breached that duty
(3) Actual and Proximate cause
(4) damages

Question 15

To whom is duty owed?

Answer 15

A duty of care is owed to all foreseeable plaintiffs that may be harmed by D’s breach of applicable standard of care

(1) majority view - D liable to Ps in foreseeable zone of danger
(2) minority view - D owes duty to everyone harmed.

Question 16

Affirmative Duty to Act

Answer 16

In general, NO affirmative duty to act affirmatively to help others.

However, D has duty to act affirmatively if:

(1) D places P in danger
(2) D has special relationship with P (common carrier/passenger, innkeeper/guest, family members, etc.)
(3) Duty to act imposed by law
(4) Begins to administer aid or attempt to rescue P

Question 17

The Reasonable Person Standard of Care

Answer 17

Default standard of care.
“A reasonably prudent person under the circumstances as measured by an objective standard.”

• Physical disabilities are considered; “reasonably prudent blind person under circumstances”
• Intoxication not disability unless involuntary.

Question 18

Children standard of care

Answer 18

Standard of care of a reasonably prudent “child of similar age, experience, and intelligence” under these circumstances.

UNLESS, child engaged in “adult activity” then, court applies Adult standard of care.

Question 19

Professionals Standard of Care

Answer 19

A professional ( nurse, lawyer, accountant, engineer, architect, etc.) is expected to exhibit the knowledge and skill of a member of the profession in good standing in similar communities.

Question 20

Physician Standard of Care

Answer 20

• National Standard of Care
• Duty to disclose the risks of treatment to enable a patient to give informed consent.
• Duty breached ONLY if an undisclosed risk was so serious that a reasonable person in patient’s position would not have consented to treatment due to high risk.

Question 21

Psychotherapists

Answer 21

Duty to warn potential victims of a patient’s serious threats of harm if:

(1) the patient has the apparent intent and ability to carry out such threats, AND
(2) the potential victim is readily identifiable

Question 22

Landowners/Land Possessors Standard of Care

Answer 22

Depends on the status of the entrant.

1) Trespassers (discovered (anticipated)/undiscovered
(2) Licensees
(3) Invitees

Question 23

Landowner Duty to Trespassers (discovered & undiscovered)

Answer 23

Tresspasser = entrant w/o valid consent or necessity.
(1) Discovered/Anticipated - entrant w/o consent but may be expected….
Duty to warn of (OR make safe) hidden dangers on the land that pose risk of death or serious bodily harm.
[Only to artificial and KNOWN conditions by landowner]
(2) Undiscovered - entrant w/o consent and unexpected.
No duty owed.

Question 24

Landowner Duty to Licensees

Answer 24

Lawful entrant with purpose of personal benefit (not to the landowner’s benefit = social guests, etc.)
- No duty to inspect the property
- Duty to warn (OR make safe) hidden dangers on the land that pose unreasonable risk of harm.
(applies to both artificial + natural KNOWN conditions.)

Question 25

Landowner Duty to Invitees

Answer 25

Entrant invited for Landowner benefit or mutual benefit. (store customers, etc.)
- Duty to reasonably inspect the land for hidden dangers (artificial or natural) that pose an unreasonable risk of harm AND if discovered, duty to make them safe.

Question 26

ATTRACTIVE NUISANCE

Answer 26

Duty to CHILD trespassers to warn of (OR make safe) artificial conditions on the land.

• landowner knows or has reason to know of child trespassers at location of artificial condition
• known that artificial condition can cause serious bodily harm
• child cannot appreciate risk
• risk of harm outweighs expense to make safe.

Question 27

Res Ipsa Loquitor

Answer 27

P must show that harm was of kind that ordinarily does not occur in the absence of negligence; AND

Caused by agent or instrumentality within the defendant’s exclusive control

Question 28

Respondeat Superior

Answer 28

Tort occurs:

(1) during employer-employee relationship in existence
(2) tort occurred within the scope of employment.

Question 29

Joint and Several Liability

Answer 29

2 or more liable parties are jointly and severally liable, each party is independently liable for the FULL extent of the damages stemming from the tortious act.

P may collect FULL judgment from either D.

D who pays in full may commence contribution action to recover share from other liable Ds.

Question 30

Negligence Causation

Answer 30

D must be Actual and Proximate cause
Actual - P would not have been injured BUT FOR D’s breach of applicable duty.
Proximate - P’s injury was foreseeable result of D’s conduct.

Question 31

Superseding Cause (Proximate Cause Analysis)

Answer 31

an outside force or action that contributes to the plaintiff’s harm AFTER the defendant’s act or omission has occurred. If the intervening cause is UNFORESEEABLE, it is a “Superseding cause” and D’s liability is cut off.

Question 32

Strict Liability

Answer 32

D will be liable for damages regardless of how careful she was.

(negligence not required for D to be held liable)

Question 33

Domestic v. Wild Animals (Strict Liability)

Answer 33

Domestic - no SL for harm caused by animal UNLESS O knew or should have known of dangerous propensity.

Wild - SL for any harm caused by animal regardless of safety precautions taken. UNLESS P was a trespasser.

Question 34

SL - Abnormally Dangerous Activities

Answer 34

D is SL for damages caused to P by his engagement in abnormally dangerous activities.

Abnormally Dangerous Activity -

(1) Inherently dangerous,
(2) Inappropriate for chosen location,
(3) Virtually impossible to make safe, AND
(4) Of little value to the community

Question 35

SL - Products Liability

Answer 35

P must show:

(1) Product was defective in manufacture, design, or failure to warn;
(2) Defect existed when the product left D’s control
(3) Defect caused P’s injury when used in foreseeable way

Question 36

SL - Manufacture Defects

Answer 36

(1) Deviated from its intended design, AND

(2) Fails to conform to the manufacturer’s own design.

Question 37

SL - Design Defects

Answer 37

(1) Consumer Expectation Test: P must show product is less safe than the ordinary consumer would expect
(2) Risk-Utility Test: P must show product’s risks outweigh its benefits and there is reasonable alternative design.

Question 38

SL - Failure to Warn

Answer 38

(1) P was not warned of risks regarding use of the product,
(2) Risks are not obvious to an ordinary user, AND
(3) Designer/manufacturer was in fact aware of such risks.

Question 39

Scope of Products Liability

Answer 39

Any person foreseeably injured by a defective product (purchaser, etc.) may pursue a products liability claim.

SL claim under products liability may only be brought against merchant who is in the chain of distribution (manufacturer-wholesaler-retailer)