Torts

Question 1

Assault

Answer 1

Assault is the intentional threatening of another with battery and the creating of reasonable apprehension of immediate bodily harm in the victim.

Example: The woman threatens to kill her ex-boyfriend after she was arrested for his assault.

Question 2

False Imprisonment

Answer 2

False imprisonment is an act punishable under criminal law as well as under tort law. Under tort law, it is classified as an intentional tort. A a person commits false imprisonment when he commits an act of restraint on another person which confines that person in a bounded area.

Example: The woman would not let her housekeeper leave at the end of the day, and instead locks her in her room.

Question 3

Battery

Answer 3

Battery is the intentional, harmful or offensive touching of another.

Question 4

Intentional infliction of mental (or emotional) distress

Answer 4

Intentional infliction of mental (or emotional) distress is the intentional causing of severe emotional or mental distress in another through extreme and outrageous conduct.

Example: Husband sets fire to all of wife’s belongings and makes her watch as retribution for being unfaithful.

Question 5

Trespass to land

Answer 5

Trespass to land is an intentional entry upon real property in the possession of another.

Example: Defendant hunts on private land without property owner’s consent.

Question 6

Trespass to chattel

Answer 6

Trespass to chattel is the intentional interference with a person’s use or possession of a chattel.

Example: Defendant takes and uses her coworker’s laptop without the coworker’s consent. Meanwhile her coworker is frantically looking for it.

Question 7

Conversion

Answer 7

Conversion is an intentional assumption of dominion and control over the chattel of another, resulting in a substantial interference with the plaintiff’s possessory rights.

Example: The Defendant took her sister’s car without her knowledge, and gets into a collision. The Defendant then sells the car to a scrap metal yard.

Question 8

Intent

Answer 8

Intent is established if the defendant either: (1) desires that his act will cause the harmful result described by the tort; or (2) knows that it is substantially certain that such a result will occur.
Example: A counter protester drives into a crowd of protestors in efforts to injury or kill them.

Question 9

Substantial Certainty Doctrine

Answer 9

The Substantial Certainty Doctrine holds that if the defendant does an act with the knowledge that it is substantially certain to produce a particular result, the defendant is deemed to have intended the result and is liable for his act.

Example: Defendant throws a brick out her car window while driving down a busy interstate. The brick hits the Plaintiff’s car resulting in damage.

Question 10

Transferred Intent Doctrine

Answer 10

The Transferred Intent Doctrine is applicable when a defendant, while in the process of committing a tort against one person, unintentionally harms a third person or commits a different tort. In such a case, the defendant’s wrongful intent is transferred to include the unintended victim or tortuous act.

Example: Two men fighting each other and throwing punches, knock an elderly man over, resulting in injury.

Question 11

Defense of Consent

Answer 11

A defendant who acted in accordance with the plaintiff’s informed and voluntary assent, whether express or implied, is not liable for the resulting harm so long as the plaintiff had legal capacity.

Example: The Defendant participates in contact sports at his college.

Question 12

Self-Defense

Answer 12

A person who reasonably believes himself to be threatened with immediate bodily harm may use whatever degree of force is apparently necessary to protect himself. If the attack is with so-called “deadly force” the majority rule is that the one attacked may defend with “deadly force” if deemed reasonable under the circumstances. The minority rule requires that the one attacked retreat if there is a safe means of doing so, unless the victim of the attack is in his “castle” (home).

Example: A woman was attacked while jogging in a park. The perpetrator attempted to rape her and she hits him on the head with a nearby stone.

Question 13

Defense of others

Answer 13

A person who reasonably believes another to be threatened with immediate bodily harm may use whatever degree of force is apparently necessary to protect the personal safety of the other person.
Example: A father walks into his home to find his daughter being sexually assaulted. The father shoots the perpetrator.

Question 14

Step-in-shoes jurisdiction

Answer 14

in some jurisdictions, a person is not allowed to use the defense of “defense of others” unless the person being defended was not the aggressor and had the right to use self-defense.
Example: A couple is involved in a collision through no fault of their own. They confront the driver of the other car and begin to yell at the driver. Things escalate and the boyfriend strikes the other driver. They begin to fight. The other driver overtakes the boyfriend. The girlfriend cannot help fight the driver since her boyfriend was the aggressor.

Question 15

Reasonable appearance jurisdiction

Answer 15

In some jurisdictions, a person defending another in good faith and in ignorance of the fact that the person being defended is the aggressor and not entitled to use self-defense is nevertheless justified when acting upon reasonable appearances. Sometimes it is further required that the person being defended is one whom the defender is authorized by statute to protect.

Example: Two friends are at a professional football game. Friend1 went to the bathroom. Friend2 starts to harass the opposing team’s fan who is sitting in the same section. The argument between friend2 and the fan escalates into a physical altercation. Friend1 returns from the restroom to find the fan beating friend2. Friend1 intercedes and begins to defend friend 2.

Question 16

Defense of property

Answer 16

A person may use reasonable force that is not likely to cause death or serious bodily harm to protect his possession of real or personal property against an apparent trespasser.
Example: A college student is walking to her car at night after class. A man approaches her and tries to snatch her laptop and purse. She pepper sprays him.

Question 17

Defense of prevention of crime

Answer 17

A person, whether a police officer or a private person, may use reasonable force to prevent the commission of a crime which is apparently being attempted in his presence.
Example: An officer on break is parked at a convenient store parking lot. He observes a man pointing a gun to the clerk behind the counter. The officer sneaks in through the back and tases the man with the gun.

Question 18

Defense of legal authority

Answer 18

A person may commit an otherwise tortuous act if it is done under legal process or is otherwise authorized by law. It is a defense that is usually used by police officers or private persons who have made an arrest either with or without a warrant and who are now facing charges of false imprisonment in relation to their having made the arrest.
Example: An officer observes a man with a tool attempting to open a car door. The officer believes he is witnessing an attempted car theft and arrests the man. However, the car belonged to the man he arrested. The man locked his keys in the car and was trying to open the car and retrieve them.

Question 19

Defense of necessity

Answer 19

A person may commit an otherwise tortuous act if that person is acting in an emergency situation to protect himself or others from a threatened injury to person or property. The person claiming the defense of necessity may act on appearances. A reasonable mistake is permitted.

Example: A family stranded in a snowstorm break into a store in order to find shelter and save their lives and the lives of their children.

Question 20

Defense of recovery of property

Answer 20

A person may commit an act that would otherwise be tortuous if he is acting in fresh pursuit and with a reasonable degree of force to regain possession of his property. There are three separate aspects to this particular defense: re-entry upon land, recapture of chattel, and the Shopkeeper’s Rule.
Example: A father comes home to find a man in his garage rummaging through the family’s possessions. Startled with the father’s sudden arrival, the man steals the father’s bike and attempts to ride away. The father tackles the intruder off the bike.

Question 21

The Shopkeeper’s Rule

Answer 21

Under the Shopkeeper’s Rule, a business person has a limited privilege in some jurisdictions to detain a suspected thief, e.g., shoplifter or embezzling employee, to investigate the shopkeeper’s claim to the goods, even though it may be determined that no wrongful taking has been committed.
Example: A storeowner catches a woman attempting to put merchandise in her purse. The storeowner’s security guard holds the woman in the store’s security office until police arrive.

Question 22

Fresh pursuit

Answer 22

Fresh pursuit relates to the requirement that a person recapturing a chattel or a shopkeeper detaining a suspected thief must do so without unreasonable delay after discovering the loss.

Example: A land owner witnesses a man illegally dumping trash onto his property. The landowner then chases the man and detains him until police can arrive.

Question 23

Negligence

Answer 23

Liability for negligence requires proof of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and that the breach was the actual and proximate cause of damages suffered by the plaintiff.

Example: A family dog has sustained injury due to a sharp metal shard in its kennel. The family left the dog at a boarding kennel and entrusted their pet to the facility’s owner. The owner aware of the shard for over a month never had it fixed and instead allowed that particular kennel to be used. The dog’s injury could only have been caused due to the sharp metal shard.

Question 24

General Duty

Answer 24

The general rule of duty holds that everyone owes a duty to exercise due care so as not to subject others to unreasonable risks of harm.

Example: A driver of a vehicle has the duty to drive in a manner that does not cause others injury or harm.

Question 25

he Cardozo Rule of Duty

Answer 25

Under Palsgraf v. Long Island Railroad Co., Justice Cardozo’s majority opinion held that a defendant owes a duty only to those who could foreseeably be endangered by the defendant’s negligent act. Therefore, according to the rule, there is no duty owed to a plaintiff who is in a position of apparent safety when the defendant commits a negligent act. This is the so-called “orbit of danger” (zone of danger) test.

Example: A man on a pier is juggling chainsaws. There is an audience forty yards away. One of the chainsaws slips and skids down the pier and hurls wooden shards into the air. A bird grabs a shard while in mid-air and drops it on one of the audience member’s eyes. The chainsaw juggler is not liable for this injury because the audience was reasonably out of the orbit of danger.

Question 26

The Andrews Rule on Duty

Answer 26

In the Palsgraf case, Justice Andrews gave a dissenting opinion that has been applied as the majority opinion in other cases. Andrews argued that if the defendant owes a duty to anyone, then he owes a duty to everyone who could foreseeably be injured by his action. Thus, Cardozo looked at the issue from a perspective of identifying whether a duty is owed, while Andrews considered the issue as one of proximate causation.

Example: A man on a pier is juggling chainsaws. There is an audience forty yards away. One of the chainsaws slips and skids down the pier and hurls wooden shards into the air. A bird grabs a shard while in mid-air and drops it on one of the audience member’s eyes. The chainsaw juggler IS liable to people who were injured by his act, even if not foreseeable that they would be injured.

Question 27

Negligence per se

Answer 27

Under the doctrine of negligence per se, the elements of duty and breach are proved when a defendant violates a safety statute that was intended to protect the class of people to which the plaintiff belongs from the kind of injury the defendant caused. In California, a presumption of negligence arises.
Example: A doctor leaves a surgical sponge inside a patient after the surgery is concluded. Leaving a sponge inside of someone is inherently dangerous and therefore the duty is presumed.

Question 28

Nonfeasance

Answer 28

Nonfeasance is a legal concept that refers to the willful failure to execute or perform an act or duty required by one’s position, office, or law whereby that neglect results in harm or damage to a person or property. The perpetrator can be found liable and subject to prosecution.

Example: A day care provider hired to supervise children failed to prevent a child from climbing out on a window ledge. The child falls, then the day care provider could be found liable for nonfeasance because it was their contracted duty to watch and protect the child from harm. They failed to take action when necessary.

Question 29

Duty owed by a good Samaritan:

Answer 29

A person who embarks upon the performance of services for another, whether gratuitously or for consideration, is under a duty to render those services with due care. This person, however, is under no duty to complete the performance of the services unless abandonment would prejudice the other party’s position. The rendering of aid in an emergency constitutes the performance of services, and a duty of care is imposed upon those who undertake to render such aid.
Some jurisdictions have enacted statutes designed to encourage physicians to render emergency aid, by limiting the liability that could otherwise be imposed upon them. Generally speaking, liability can be imposed upon them only for reckless or wanton misconduct.
Example: A good Samaritan stops and renders aid to a drowning victim. They take the victim out of the water and start mouth to mouth respirations and chest compressions. Even though the good Samaritan used due care they injured the victim’s ribs while doing compressions, but because he used due care, he is not liable for the choking man’s injuries.

Question 30

Duty owed to a rescuer

Answer 30

A person whose negligence creates a situation in which he needs to be rescued may be held liable for injuries incurred by his rescuer.

Example: An arsonist sets fire to a storage facility but gets trapped inside. Firefighters come to rescue him and one firefighter gets injured while attempting to save arsonist. The arsonist is liable for that firefighter’s injuries because he started the fire.

Question 31

Negligent supervision

Answer 31

Negligent supervision is a cause of action that is brought by a plaintiff who suffered injury because of a child or other person who was inadequately supervised by one who owed a duty of supervision. Most commonly, it is brought against parents who failed to exercise ordinary parental discretion as to the manner in which their child is supervised or cared for. Modernly, a child may bring an action against his or her own parents for injuries sustained by the child because of lack of proper supervision.

Example: An elderly woman is walking on the sidewalk when a group of neighborhood children run into her on their bikes. The children were young, between the ages of 3-7. However, the elderly woman was knocked down and sustained a hip injury. The parents of the children can be held liable because they were not around at the time of the accident, failing to adequately supervise their children.

Question 32

Invitee

Answer 32

An invitee is a person who has express or implied permission to enter the property for the purpose for which the property is maintained.

Example: Due to the owner’s behest, a landscaper is asked to give an estimate to trim trees and cut grass on the owner’s property.

Question 33

Business invitee

Answer 33

A business invitee is a person who has express or implied permission to enter business property to do business with the land occupier.
Example: A restaurant owner has asked a plumber for an estimate to fix the leaky pipes in his kitchen.

Question 34

Public Invitee

Answer 34

A public invitee enters property in the possession of another for the purpose for which the property is held open to the public. It is not required that a business purpose be involved. Public employees acting within the scope of their official duties are included in the category of public invitees.
Example: A family visiting a public park are considered public invitees.

Question 35

Duty owed to an invitee

Answer 35

A land occupier owes a duty of ordinary care to invitees, which includes reasonably inspecting the land for dangerous conditions and repairing those dangerous conditions that a reasonable inspection would reveal.
Example: A land owner has a tree with a dangling branch hanging over his driveway. The owner plans to have contractors work on his roof and they will be parking on his driveway. Should an invitee get injured by said branch, then the land owner can be held liable.

Question 36

Licensee

Answer 36

A licensee is a person who enters property with the express or implied permission of the land occupier. Such entry is not for the purpose of doing business.

Example: A homeowner invites his neighbors for a housewarming party. The neighbors that attend are considered to be licensees.

Question 37

Duty owed to a licensee

Answer 37

A landowner owes a duty of ordinary care to licensees, which includes either 1) warning licensees of known dangerous conditions, unless they are obvious or already known to the licensee, or 2) repairing dangerous conditions to make the property safe.
Example: A homeowner has his in-laws over for dinner. The homeowner meant to fix a rocking chair that has a very loose leg but had not found the time. His mother-in-law sits and injures her hip. The homeowner can be held liable for injuries sustained to his licensee

Question 38

Trespasser

Answer 38

A trespasser is someone who enters the real property of another without express or implied consent.
Example: A couple decides to have a picnic under a tree on an open field. The open field is private property and is fenced in its entirety. However, the couple jumps the fence and proceeds with their picnic. They are the trespassers.

Question 39

Duty owed to a trespasser

Answer 39

The land occupier generally owes no duty of care to the trespasser unless the trespasser is a constant trespasser upon a limited area or a child to whom the Attractive Nuisance Doctrine applies.
Example: The couple that decided to have their picnic under the tree were injured by a loose branch. The property owner is not liable for their injuries.

Question 40

Attractive Nuisance Doctrine

Answer 40

The Attractive Nuisance Doctrine, recognized in most jurisdictions, imposes a duty upon land occupiers for the protection of young children whose trespasses are to be anticipated and whose immaturity renders them particularly susceptible to injury from dangerous conditions on the land. The land occupier owes a duty of reasonable care to eliminate a danger or to otherwise protect children when the following elements are present: 1) foreseeability of trespass, 2) foreseeability of serious harm, 3) the child is unaware of the danger, and 4) the benefit to the owner of maintaining the condition in its dangerous form is slight when weighted against the risk to children.
Example: Property owner fails to cover an open water well located in the front of his property. A neighbor’s child falls into the well and injures themselves. Property owner is liable.

Question 41

Duty owed to a person off the premises

Answer 41

The land occupier owes a duty to maintain the premises in a reasonably safe condition for the protection of passersby and occupiers of adjoining premises. This includes the duty of inspection to discover and correct those defects that a reasonable inspection would reveal.
Example: A land owner knows a tree on his property is dead and could fall. A pedestrian is walking past the land owner’s house and the tree falls injuring the pedestrian. Therefore, the land owner is liable.

Question 42

Duty owed with regard to natural conditions on land

Answer 42

A land occupier traditionally owed no duty to others for the care of natural conditions on the occupied property. However, the recent trend may be to impose a duty of reasonable care as to natural conditions, at least in those situations where the condition is known to the landowner.
Example: A person is injured on a land owner’s private property after stepping into a
sinkhole. The land owner knew of the sinkhole and failed to mark it accordingly.

Question 43

Lessor

Answer 43

A landlord owes no duty to a person coming onto land with a consent of the lessee, with the following exceptions: 1. The lessor owes a duty if a danger exists at the start of the lease which the lessor knows or should know about which the lessee has no reason to know about 2. The lessor has the duty to inspect for and repair dangerous conditions, if the lessor knows the lessee will hold the land open to the public. 3. The lessor has a duty to use reasonable care to make common areas safe. 4. The lessor owes a duty to keep the premises in good repair if that is part of the lease contract. 5. The lessor owes a duty if he begins repairs and performs them unreasonably or does finish them. 6. The lessor owes a general duty of care in some jurisdictions.
Example: A homeowner has decided to rent out his house with a 12-month lease. Before the homeowner can do so, he must make sure every dangerous aspect of the home is remedied and that is safe for occupation.

Question 44

Lessee

Answer 44

A lessee is a land occupier and has the same liabilities that any land occupier would have. The lessee makes a one-time payment or a series of periodic payments to the lessor in return for the use of the asset.
Example: The tenant of rental house has signed a lease for 12 months. He will pay a monthly rate of two thousand a month, and will follow the terms of the lease, which he and the lessor have agreed to.

Question 45

Breach of Duty

Answer 45

If the defendant’s conduct fails to meet the required standard of care, they are said to have breached that duty.

Example: A driver may breach his duty to other drivers to drive safely by texting while driving.

Question 46

Res Ipsa Loquitur

Answer 46

Res Ipsa Loquitur is a rule of evidence that aids the plaintiff in proving the element of breach of duty when the plaintiff is unable to establish by other evidence that the defendant acted unreasonably. The doctrine proceeds upon the theory that the occurrence itself speaks of negligence and it is unnecessary for the plaintiff to show the exact circumstances whereby the defendant breached his or her duty of care. The plaintiff must prove:
• the defendant was in complete control of the instrument that caused the harm;
• the plaintiff is not guilty of contributory negligence;
• the defendant is in a better position to explain what happened; and
• injuries of this type do not normally occur absent such negligence.
The literal interpretation is “the thing speaks for itself.”

Example: A surgeon has left a surgical sponge inside a patient resulting in an infection for the patient.

Question 47

Actual Cause or Cause in Fact

Answer 47

An actual cause is the cause which starts, ignites, or makes possible the result which follows, and which satisfies the “But For” or Substantial Factor Test.

Example: When a school bus rear ends a car, the bus driver’s actions are the actual cause of the accident.

Question 48

But for Test

Answer 48

The “But For” Test is used to establish actual cause. To apply the test, the plaintiff must show that but for the defendant’s act, the plaintiff would not have been injured.
Example: Plaintiff suffers whiplash from being rear-ended by the Defendant. ‘But For’ the Defendant rear-ending Plaintiff, Plaintiff would not have been injured.

Question 49

The Substantial Factor Test

Answer 49

The Substantial Factor Test is used to establish actual cause where more than one act contributes to the plaintiff’s harm. The defendant is said to be an actual cause of the plaintiff’s harm if the defendant’s act is a substantial factor in bringing the harm about. This means that the defendant’s act contributed in more than a trivial degree to the plaintiff’s injury. The test applies where two or more acts combine to produce a single indivisible injury regardless of whether either or any of the acts by itself would have caused the injury. Where more than one act could have caused the injury by itself, then each actor may be held jointly and severally liable. However, where an act would not have caused the injury without the other contributing acts, liability may be apportioned between the tortfeasors.
Example: A surgeon has left a surgical sponge inside a patient resulting in an infection for the patient. The surgeon’s mistake was the “substantial factor” for the patient’s infection.

Question 50

Sine Qua Non

Answer 50

Sine qua non literally means “without which not.” The term relates to the “But For” Test in that if a defendant’s act is the sine qua non of a plaintiff’s harm, then the plaintiff’s harm would not have occurred int the absence of that act.
Example: Sine qua non would apply to a situation wherein a child found his father’s gun in an unlocked cabinet and injured himself. The father, who left the gun cabinet unlocked, was the sine qua non of the injury that his child ultimately suffered because had he not left the cabinet unlocked, the injury couldn’t have happened.

Question 51

Proximate Cause

Answer 51

An actual cause of harm is the proximate cause of that harm if the act occurs in a natural and continuous sequence of events, unbroken by unforeseeable, independent, intervening acts and results in the harm. When a defendant’s act directly causes injury to the plaintiff without any intervening causes, the majority of jurisdictions hold that act to be the proximate cause of harm unless the harm is unforeseeable. However, in some jurisdictions, if the defendant’s act directly causes harm, his act is the proximate cause regardless of whether the harm was foreseeable or unforeseeable. When a dependent intervening act occurs, the chain of causation is broken only if the result of the dependent intervening act is highly unforeseeable. When an independent intervening act occurs, the chain of causation is broken unless the result of the independent act is foreseeable.

Example: A driver of a car runs a red light and hits another driver of a car which had a green light, causing injury to the second driver.

Question 52

Dependent intervening act

Answer 52

A dependent intervening act is one that would not have occurred in the absence of the original negligence. It is nearly always considered to be part of the chain of events set in motion by the original negligent act. Therefore, a dependent intervening act breaks the chain of causation only if the act was highly unforeseeable.
Example: A security guard fired a pistol and injured a bank employee because the defendant robbed the bank.

Question 53

Independent Intervening Act

Answer 53

An independent intervening act is one that would have occurred even in the absence of the original negligence. It breaks the chain of causation unless the act or its result was foreseeable in light of the original negligent act.

Example: Man1 shoots man2. Man2 was later struck by a vehicle and killed while seeking medical attention. The independent intervening cause is the vehicle striking the Man2.

Question 54

Thin Skull Plaintiff Rule

Answer 54

Under the Thin Skull Plaintiff Rule, also called the Eggshell Plaintiff Rule, an exception is made to the general rule that an unforeseeable result if the defendant’s act may break the chain of causation and negate liability. The defendant “takes his plaintiff as he finds him” in that result is due to the plaintiff’s uncommon reaction or physical defect.

Example: A slip and fall in a shopping mall parking lot which is not properly kept clean of snow and ice in the winter.

Question 55

Contributory Negligence

Answer 55

Under the minority doctrine of contributory negligence, if the plaintiff’s failure to exercise reasonable care for his own safety is a contributing factor to his own injury, he is barred from recovery for the defendant’s negligent action.

Example: A skier not wearing a helmet has injured himself on the ski slopes. His injuries could have been mitigated if he was wearing his protective wear.

Question 56

Comparative Negligence

Answer 56

Modernly, the doctrine of comparative negligence has replaced contributory negligence, so that liability is apportioned according to the relative degrees of fault of the plaintiff and defendant. In a pure comparative negligence jurisdiction like California, the plaintiff will recover some damages no matter how great his own negligence was. In partial comparative negligence jurisdictions, the plaintiff will not recover if his own negligence equals or exceeds the defendant’s.

Example: Dan is making a left turn and hits Ann, who is driving over the speed limit. Ann sustains injuries and sues Dan for negligence. Under a comparative negligence system, Dan may be found 80% at fault for failing to make a safe left turn, and Ann may be found to be 20% at fault for speeding. If Ann’s total damages amount to $100,000, Ann will receive $80,000 instead of the total amount—her amount is reduced according to her degree of fault 20%.

Question 57

Last Clear Chance Doctrine

Answer 57

The last clear chance doctrine limits the contributory negligence defense so that even if the plaintiff was contributorily negligent, he will be permitted to recover if the defendant had a superior opportunity to avoid the accident and failed to do so.
Example: Brandon is driving down a two-lane highway. Madison is driving in the opposite direction. Brandon is groggy and he is fighting to stay awake. His car starts to snake along the road. Madison sees all that is happening in front of her. She also sees Brandon’s car start to curve in her direction. She has plenty of time to turn her car to avoid Brandon, but she does not do so. As a result, the cars collide, and Brandon hurts his neck. Here, both Brandon and Madison are negligent. However, note that Becky had the “last clear chance” to avoid the car accident, but she failed to do so.

Question 58

Assumption of the Risk

Answer 58

Under the defense of assumption of the risk, a plaintiff assumes the risk of harm if he voluntarily subjects himself to a known and appreciated risk. Such consent may be expressly created by agreement between the parties, or it may be implied by the plaintiff’s conduct. At common law, assumption of the risk is a complete bar to recovery in a negligence action.
Example: A patron at a theme park stood and watched a roller coaster for several minutes before deciding to go on the ride. The patron’s observation of the roller coaster suggests an understanding of the inherent risks and a decision to assume those risks.

Question 59

Joint Tortfeasors

Answer 59

Joint tortfeasors consist of two or more persons who join together to commit a tortuous act. Their status is similar to that of co-conspirators in criminal law, and each is vicariously liable for the acts done by the other in the furtherance of the common design.
Example: A pedestrian on a cross walk is struck by a vehicle. The driver was intoxicated because they were continuously served alcohol. The driver and the bartender are both negligent because their independent acts resulted in the plaintiff’s injuries.

Question 60

Concurrent Tortfeasors

Answer 60

Concurrent tortfeasors consist of two or more persons who are not acting in concert with each other, but whose acts combine to produce a single indivisible injury to the plaintiff. In some jurisdictions, joint and several liability is applied in a pure form, holding each concurrent tortfeasor liable for the full amount of the harm. However, a majority of jurisdictions will apportion damages by using a comparative fault system. Vicarious liability does not apply.
Example: An example of concurrent tortfeasors would be two motorists in separate cars, both driving negligently and causing a collision in which a pedestrian is injured.

Question 61

Successive Tortfeasors

Answer 61

A successive tortfeasor is one whose negligence follows an initial injury and adds to, or aggravates, the existing injury. Under the rules of proximate causation, if the second tortfeasor’s negligent act did not break the chain of causation set in motion by the first tortfeasor, then the first tortfeasor can be held liable for both acts. However, if the second tortfeasor’s negligent act did break the chain of proximate causation, the first tortfeasor can only be held liable for his own negligence.

Example: The plaintiff was involved in a car accident where defendant1 ran his red light and hit the plaintiff’s car, resulting in a concussion for the plaintiff. The same week the plaintiff was crossing the street and defendant2 failed to yield to pedestrians in the crosswalk, and struck the plaintiff resulting in further head and neck trauma. Both defendants’ negligence resulted in injury to the plaintiff.

Question 62

Joint and several liability

Answer 62

Joint and several liability is imposed upon joint and concurrent (but not successive) tortfeasors. This means that each is responsible for the full amount of the plaintiff’s injury and the full amount of a related court judgment. Judgments for the full amount may be obtained against any of the tortfeasors, but the plaintiff is not entitled to recover more than the total judgment. Thus, satisfaction from one tortfeasor will discharge the liability of the others to the plaintiff.

Example: Alice and Bob, in their respective cars, both run a red light and hit Charles, who is driving through the intersection. Charles suffers serious injuries and damage to his car, and he is unable to work. Charles decides to sue. He can either sue Alice alone, Bob alone, or sue them both at the same time. Charles can collect damages depending on the avenue he pursues.

Question 63

Contribution

Answer 63

Contribution relates to a claim by one concurrent tortfeasor against another concurrent tortfeasor, requesting reimbursement of the other’s proportional share of a court judgment. It is typically used after joint and several liability has been found and one defendant has had to pay the plaintiff more than his pro rata share of the damages.

Example: Two motorists caused a collision at an intersection that results in injury to a pedestrian. The pedestrian is the injured party. The pedestrian however may choose to sue only one motorist. That motorist who is sued may then assert a contribution

Question 64

Indemnity

Answer 64

Indemnity is a shifting of the liability from a defendant who is only secondarily or vicariously liable to the party who is primarily liable. Where it applies, indemnification allows the secondarily or vicariously liable defendant who has paid a court judgment to obtain full reimbursement from the party who is primarily liable. Some jurisdictions, including California, have adopted a rule of partial indemnity on the basis of relative fault of the parties.

Example: Davis constructed a 3D printed gun to sell. He has sold it to Mary. Mary then takes the 3D printed gun to a shooting range and it malfunctions and it shoots a bystander. The bystander sues Mary and is awarded damages against her. Mary is entitled to indemnification against Davis, whether or not the bystander sues Davis.

Question 65

Vicarious Liability

Answer 65

Under the theory of vicarious liability, a defendant who is not charged with personal fault or wrongdoing may be held liable for the tortfeasor’s act because of the defendant’s relationship to the tortfeasor (e.g., the defendant is an employer, joint venturer, car owner, bailor, parent, etc.) A defendant who is held vicariously liable has the right to indemnification by the tortfeasor.
Example: Employee recklessly drives employer’s van onto the sidewalk and hits Pedestrian. The employer maybe vicariously liable.

Question 66

Joint Venturers

Answer 66

Joint venturers are similar to partners except that joint venturers share only a short, specific purpose, such as a trip or single transaction. Joint venturers are generally vicariously liable for each other’s torts in furtherance of the venture.

Example: Woman1 and woman2 go into business together and open a salon. If woman1 is sued regarding the salon, it is likely that woman2 will be held vicariously liable for future litigation.

Question 67

Respondeat Superior

Answer 67

The literal translation is “let the superior answer.” The doctrine applies in employment situations to hold the employer vicariously liable for his employee’s torts which are committed within the scope of employment.

Example: In a personal injury case that involves a truck driver’s negligence, the injured individual can try to bring the driver’s employer, often the trucking company itself, into the case and hold them liable as well.

Question 68

Scope of Employment

Answer 68

A tort is committed within the scope of employment when the employee was acting with an intent to further his employer’s business interests, even if the employee acted indirectly or unwisely, and even if the employer forbade the employee from such an act.

Example: An employer instructs his employee not to use extreme force if a theft should arise in his store. One day two men are caught stealing merchandise from the store. When the men are confronted by the employee the men run out of the store. The employee runs after them and takes out a gun. The men have made it to their car and are far from the employees reach. The employee then takes out a gun and shoots at the men.

Question 69

Strict Liability

Answer 69

Strict liability is liability without fault. It is imposed against a defendant even though the defendant has done nothing intentionally wrong and has not acted unreasonably under the circumstances. Such liability is imposed, traditionally, for the keeping of dangerous animals, and the carrying on of abnormally dangerous activities.
Example: A white tiger had been spotted in a Houston neighborhood. It belongs to a man who lives in the neighborhood and keeps the exotic animal as a pet in city limits.

Question 70

Products Liability

Answer 70

A manufacturer or seller who releases an unreasonably dangerous product into the stream of commerce is liable for harm caused by the product. In order to recover, it must be proved that the product was defective in design, manufacture, or warning, and one of four separate and distinct theories of liability must be asserted: intentional,
negligence, breach of warranty, or strict liability.

Example: A baby’s crib has a spring that has been discovered to be the cause of many children
losing their fingers while lowering the crib rail. Damages may be applied under products liability
(strict liability).

Question 71

Design defect

Answer 71

When a product is defective in design, it means that the product was produced as intended by the manufacturer, but because of its design, the product creates an unreasonable danger to consumers. However, a defense may exist where the product is unavoidably unsafe and its benefits outweigh the dangers.

Example: Design defects include products that are unduly flammable or prone to melting, especially if heat is an essential part of its purpose or function, like an electric blanket that catches fire.

Question 72

Manufacture Defect

Answer 72

When a product is defective in manufacture, it means that the product was not made as intended. Instead, due to an error in the production of the particular item at issue, the product is aberrant. Note that other products of the same type may not be defective.

Example: A plaintiff’s metal hip replacement prematurely breaks due to substandard
manufacturing practices. When these types of manufacturing defects cause injuries to
consumers, the manufacturer can be found liable.

Question 73

Warning Defect

Answer 73

When a product is defective in warning, its design and production are as intended, but the product poses a danger that is not apparent to the reasonable customer.

Example: The plaintiff bought a set of Christmas lights that overheat if on continuously for more than 4 hours. After 4 hours, the lights present a fire risk. The manufacturer fails to warn about the potential danger of the product. If the plaintiff is injured by a fire started due to the product they could recover not only for a defect in the design of the lights, but also for the inadequate warnings regarding the danger posed by the lights.

Question 74

Intentional Misrepresentation

Answer 74

In order to recover for intentional misrepresentation, or
deceit, the plaintiff must prove that the defendant made a false statement of material fact with scienter and with intent to induce the plaintiff’s reliance, and that the plaintiff justifiably relied, causing the plaintiff damage.

Example: A person is selling a car and knows there is a problem with the transmission, yet advertises it in perfect mechanical condition, they have committed intentional misrepresentation

Question 75

Negligent

Answer 75

In order to recover for negligent misrepresentation, the
plaintiff must prove that the defendant breached his duty to exercise due care in acquiring and transmitting information, and made a false statement of material fact, with an intent to induce the plaintiff’s reliance, and that the plaintiff justifiably relied, causing the plaintiff damage.

Example: Improper and unreasonable cost and completion time estimates would be an example of negligent misrepresentation.

Question 76

Defamation

Answer 76

Defamation is a false and defamatory statement, published intentionally or negligently to a third person, that the third person understood applied to the plaintiff, and which caused damage to the plaintiff. In order to recover damages, in addition to proving each
element of defamation, the plaintiff is required to show that he or she has made a demand for a retraction from the defendant that would be given equal publicity, and the plaintiff must show that the defendant has refused to give the retraction.

Example: A rapper recently won a judgement against a news publication for defamation
because they falsely reported that she was an unfit mother and addicted to drugs.

Question 77

Slander

Answer 77

Slander, which is defamation that is published through the spoken word, requires proof of special pecuniary damages that flow directly from the defamation. Once these are proved, general damages are recoverable.

Example: The news publication that defamed the rapper was also liable for slander because
they reaffirmed the false statements, that the rapper was addicted to drugs and was an unfit
mother, through their podcasts and talk radio

Question 78

Slander per se

Answer 78

Slander Per Se results from a slanderous statement that is sufficiently serious to allow the plaintiff to recover without proof of special damages. The slanderous
statement must allege criminal behavior, loathsome disease, unchaste, or improper business practices. For slander per se, the plaintiff is not required to prove special damages in order to
recover general damages.

Example: The rapper sued the publication because her album sales declined due to the rumor
that she contracted a sexually transmitted disease while being unfaithful to her husband and
while addicted to drugs. The news publication knowingly reported the false statements in order
to increase sales.

Question 79

Libel

Answer 79

Libel is written defamation.

Example: The news publication that first reported the falsehoods of the rapper, in regards to
her being a drug addict and an unfit mother, was awarded a judgment against the publication
for libel. The news publication first wrote published the false stories on their website in the
form of a news article.

Question 80

Libel per se

Answer 80

Libel Per Se is a statement that is clearly defamatory on its face, meaning that inducement and innuendo are not needed to establish the fact that the statement is
defamatory. For libel per se, proof of special damages is not required, and general damages are presumed.

Example: The rapper sued the publication because they perpetuated the rumor that the rapper
contracted a sexually transmitted disease while being unfaithful to her husband and while
addicted to drugs. The news publication knowingly wrote the false statements in order to
increase traffic to their website and other social media platforms.

Question 81

Libel per quod

Answer 81

Libel per quod is not defamatory on its face but is defamatory only when viewed in light of outside circumstances, meaning that the inducement and innuendo are needed to establish the defamation. Libel per quod requires proof of special damages in some
jurisdictions.

Example: The rapper sued the publication because her album sales declined due to the rumor that she contracted a sexually transmitted disease while being unfaithful to her husband and while addicted to drugs. The news publication knowingly wrote the false statements in order to increase traffic to their website and other social media platforms.

Question 82

Colloquium

Answer 82

Colloquium is the offer of extrinsic evidence to explain the defamatory sense of the defendant’s statement, and is included in a complaint when a statement is not defamatory on its face.

Example: A news outlet reported that the CEO of ACME industries was embezzling funds from his own company. and used illegal drugs. However, there is only one CEO of ACME
industries. This would most likely be specific enough to meet the colloquium element of defamation.

Question 83

Inducement

Answer 83

Inducement is the extrinsic facts necessary to understand the defamation.

Example: A gossip website reports that Bill Hader recently got married. The inducement is the
fact that Hader is a Catholic priest.

Question 84

Fair Comment privilege

Answer 84

The Fair Comment Privilege is a common law rule derived from the First Amendment rights of free speech and free press. The privilege applies to statements of opinion that have been made in good faith on matters of public interest. Covered by this privilege are opinions about newsworthy persons, events, products, art, works, etc.

Example: A reporter goes to a city council meeting and a city council woman says a defamatory remark, the reporter can print the defamatory statements of the city council woman. The Fair Comment Privilege covers the media’s accurate reporting of ‘official statements’ by government officials made at a governmental setting or in less formal ways.

Question 85

Malicious Prosecution

Answer 85

Malicious Prosecution is a cause of action against a defendant who previously filed criminal or civil proceedings against the plaintiff without probable cause and with malice. The original proceeding must have ended in favor of the party who is now suing for
malicious prosecution.

Example: Peter, a prosecutor, is running for State’s attorney in his district. When he loses the
election, he is convinced that his opponent ran a crooked campaign. As lead prosecutor in the
town, Peter charges his former opponent with bribing public officials.

Question 86

Abuse of Process

Answer 86

Under tort law, a person is liable for abuse of process if he previously initiated a legal proceeding against the plaintiff, with an ulterior motive, and for an improper
purpose.

Example: Judy has bought a dining-room furniture set and after a couple of weeks decides she no longer likes it. Therefore, goes back to the store and asks for refund. The store, maintains that it is unable to provide a refund due to the absence of any manufacturer defects. Judy then threatens the manager of the furniture store with legal action if she is not granted her refund. Judy obtains the necessary documents to file a small claims lawsuit against the store, fills them
out, and has a process server deliver them to the store manager. Judy never filed with the court
and was merely using it as a scare tactic.

Question 87

Disparagement

Answer 87

Disparagement, or trade libel, is the publication of an untrue or misleading statement about another’s business or product in an attempt to influence a person not to deal with the business.

Example: A local restaurant owner prints flyers that states his competitor charges twice the price for the same drinks and meals, even though he has no knowledge of his competitor’s prices.

Question 88

Interference with an economic relationship

Answer 88

Interference with Economic Relationship is a
broad cause of action alleging an intentional interference with one’s business relationships. Included are interferences with contractual relationships, expected commercial relationships, and intimidation of employees, clients, etc. To prevail, the plaintiff must prove that the
defendant intentionally and unlawfully interfered with the plaintiff’s business or enterprise, and that the defendant’s act resulted in commercial or economic harm to the plaintiff.

Example: Daniel LaRousso convinces the owner of a shopping strip to raise the rent to his lease holders in order to close down a competing dojo out of business.

Question 89

Private Nuisance

Answer 89

Private nuisance results from an act by the defendant who unreasonably interferes with the plaintiff’s use or enjoyment of his property.

Example: Beverly has asked her neighbor, Bob to keep his dog from barking through the night. The excessive and loud barking is preventing Beverly from having a restful night’s sleep and it is affecting her health and well-being. Bob has refused to comply

Question 90

Public Nuisance

Answer 90

Public nuisance results from an act or conduct by the defendant that is injurious to the public in general.

Example: An entire neighborhood, with a total of 200 houses, have decided to sue a nearby poultry farm. The plaintiffs maintain that their health is being affected as a result of the polutry farm and the noxious odors it emits. They argue the fumes from the animal waste is hazardous to their health. Some health complaints include asthma, migraines, itchy, watery eyes, and excessive coughing.

Question 91

Invasion of privacy

Answer 91

Generally, causes of action for invasion of privacy relates to the violation of one’s right to be let alone. One of four theories must be charged: appropriation of
likeness, intrusion upon seclusion, public disclosure of private facts, or false light.

Example: A couple has begun renting a house and signed a 12-month lease. After the first
month of occupation the couple learned that the landlord installed video recording equipment
in their bedrooms and bathrooms. The couple has a right to privacy and an expectation of it in
their home regardless of the fact that the landlord owns the home.

Question 92

Appropriation of likeness

Answer 92

Under the theory of appropriation of likeness, the plaintiff alleges that the defendant has committed an invasion of privacy through the unauthorized use of the plaintiff’s name or likeness. Most commonly, the suit arises from the use of the plaintiff’s name or likeness to promote a business or product, however most jurisdictions do not require a commercial use.

Example: A wig company uses celebrities’ pictures in their advertisements. Their entire website
has wigs and then a picture of a celebrity with a similar hairstyle. The celebrities featured in
their website did not know they are being used and are not compensated for the use of their
likeness.

Question 93

Intrusion upon seclusion

Answer 93

Under the theory of intrusion upon seclusion, the plaintiff alleges that the defendant has committed an invasion of privacy through an intentional and unreasonable interference with the plaintiff’s private affairs or an invasion of a location in which the plaintiff has a reasonable expectation of privacy.

Example: A woman notices a man outside her bedroom window watching her undress with
binoculars. She has become emotionally distressed after the incident. The woman had a
reasonable expectation of privacy in her own bedroom, in her own residence.

Question 94

Public Disclosure of Private Facts

Answer 94

Under the theory of public disclosure of private facts, the plaintiff alleges that the defendant committed an invasion of privacy through the publication of information relating to the plaintiff which is not a legitimate concern to public, in a way that would be highly offensive to a reasonable person.

Example: Carol has just had the birth of her first child. Carol has consented to the hospital
taking video at the time of birth for educational purposes. The hospital later releases the video
of Carol giving birth to another party. It is then shown in a commercial setting and publicly
viewed. Carol did not consent to making the birth publicly available.

Question 95

False Light

Answer 95

The theory of false light is not recognized by some states and in these states, the plaintiff must prove defamation to recover damages. However, in those states which recognize false light, the plaintiff must prove that the defendant has committed an invasion of privacy
through the publication to the public of offensive, untruthful or misleading information about
the plaintiff. In California, where the publication involves a false implication, an action brought
for false light.

Example: Gerald has decided to resign his position on the City Council to care for his ailing father, who has serious health problems. A local news website has written a story about Gerald’s resignation. However, they painted Gerald’s resignation in a false light, they implied he
resigned because of infidelity. The website published the story, intentionally, with false or untrue information, in the hopes to increase their website’s traffic.

Question 96

Special Damages

Answer 96

Special Damages are pecuniary in nature and related to specific costs incurred due to the particular circumstances involved in the tort. Special damages must be specifically claimed and proved. Examples are lost wages, medical expenses and other “out of pocket” losses.

Example: A woman was driving her minivan down a rural road when a tractor trailer rear-ended her. The plaintiff, sustained a broken back in the accident and. She is a surgeon and owns her own medical practice. The plaintiff had to learn to walk again, and regain the ability to stand for long periods of time and handle to stress of being a surgeon. The plaintiff and her husband filed a lawsuit, and the tractor trailer company was held liable for the accident. The plaintiff and her husband sued for medical expenses, as well as lost wages due to her inability to work. They also sued for pain and suffering. They were ultimately awarded nearly $4 million in compensatory and special damages.

Question 97

General Damages

Answer 97

General Damages are non-pecuniary in nature and are presumed by the law to be incurred based upon the commission of the tort. General damages need not be specifically claimed and proved. Examples, are pain, suffering and inconvenience.

Example: The plaintiff in the previous case was also awarded
general damages for her pain and suffering. This was in addition to her lost wages, so more difficult to ascertain a specific amount. General damages are awarded for things that do not come with a price tag, such as the loss of reputation, or for emotional pain and suffering.

Question 98

Punitive Damages

Answer 98

Punitive damages, also called exemplary damages, are awarded to the plaintiff for the purpose of punishing the defendant for malicious or reckless conduct. The intent is to make an “example” of the defendant’s conduct so that such conduct will not be repeated.

Example: Examples of this would be drunk driving or distracted driving. In both cases, the defendant would have made a conscious decision to engage in behavior that could easily harm
another person.

Question 99

Doctrine of Avoidable Consequences

Answer 99

Under the doctrine of Avoidable Consequences, a
plaintiff must act reasonably to mitigate his or her damages. If the plaintiff fails to act
reasonably to minimize his loss or injury, the amount in damages he or she recovers may be
reduced.

Example: Cowboys and Cowgirls was the name of the party putting on a rodeo at a convention
center. The party inadvertently set off the fire sprinkler system, causing substantial water damage. The owner of the convention center sued Cowboys and Cowgirls. The party contended that the convention center’s damages were exacerbated by the owners’ failure to shut down the sprinkler system as soon as reasonably possible. Cowboys and Cowgirls contend had the convention center shut off the sprinklers faster, they could have mitigated the extent of the damages.

Question 100

Collateral Source Rule

Answer 100

Under the Collateral Source Rule, if a third party provides benefits or reimbursement to the plaintiff for losses caused by the defendant, no evidence of the money or benefits from the collateral source may be introduced by the defendant to try to diminish the amount in damages he owes the plaintiff.

Example: The plaintiff is in a two-vehicle collision due to another person’s negligence and the plaintiff’s medical expenses exceed $200,000. The plaintiff’s health insurance company agrees to pay $200,000 in medical expenses and the plaintiff’s parents give them a vehicle to replace the damaged vehicle. The plaintiff is still entitled to pursue damages from the defendant for the $200,000 in hospital bills and for the property damage for the plaintiff’s car. The defendant in this case cannot introduce the monetary value the plaintiff received from their insurance company or their parents into evidence.