Torts

Question 1

Occupier duties for overhanging trees

Answer 1

Generally, no duty is owed to persons outside the land from natural conditions occurring on the land.

However, in urban areas, owner/occupier of land has a duty toward persons outside the property to take reasonable steps to prevent injury from overhanging branches of native trees on the land.

Question 2

Negligence per se & defense to violation

Answer 2

Breach of a statutory duty of care which creates a rebuttable presumption of negligence:

• (1) Plaintiff must be a member of the class of persons the statute was designed to protect, and
• (2) Plaintiff’s harm must be of the type the statute was designed to prevent.

The statute must impose an affirmative duty to take certain actions and impose a penalty for failure to do so.

Violation of the statute may be excused where compliance would cause more danger than violation or where compliance would be beyond the defendant’s control.

Question 3

Duties of care for owners and occupiers of land

Answer 3

Question 4

Rescue doctrine

Answer 4

A person who puts another in danger is liable for injuries caused to the person endangered, as well injuries resulting to a rescuer. It is irrelevant that rescuer had no duty to rescue. Peril invites rescue; rescue is foreseeable.

A defendant is liable to a rescuer if the defendant negligently puts himself in peril and the rescuer is injured while attempting to rescue him, as long as the rescue is not reckless.

Under the majority rule, a defendant who gratuitously promises to take action to aid a plaintiff has no duty to actually take the promised action, even if the defendant has relied on the promise to his detriment.

The rescuer may be liable for injuries caused by negligent rescue. But if a rescue effort is foolish or reckless, it is deemed to be the sole legal cause of any additional injury resulting if the injuries are divisible.

Question 5

Omission to act as breach of duty

Answer 5

Generally, a failure to act to protect another person from harm is not actionable. However, if a special relationship exists, then the failure to protect others from harm creates liability.

Special Relationships:

• Contractual Duty
• Innkeepers and Guests
• Common Carriers and Passengers
• School and Students

Question 6

Three types of comparative negligence theories

Answer 6

Pure Comparative Negligence (majority rule): A negligent plaintiff’s recovery will be reduced by the percentage of his own negligence. Assumption of the risk not an absolute bar to recovery.

Contributory Negligence: Plaintiff cannot recover if plaintiff is at all negligent. Assumption of the risk bars recovery unless defendant had the “last clear chance” to prevent injury.

Modified Comparative Negligence: Plaintiff may recover if plaintiff’s negligence is less than defendant’s negligence. Assumption of risk not a bar to recovery.

Question 7

Express assumption of the risk

Answer 7

Plaintiff relieves the defendant of any legal duty either:

• (a) by contract, or
• (b) by some overt language agreeing to waive liability and not sue.

​This is a complete bar to recovery.

An express assumption of risk in a disclaimer clause is valid only if three criteria are met:

• (1) the plaintiff is aware of its terms;
• (2) the injury which occurs is within the risks of which the plaintiff agreed to relieve the defendant; and
• (3) the disclaimer is not contrary to public policy.

A disclaimer is contrary to public policy when it is actually involuntary because the service is a critical need and the plaintiff has no other effective option.

Question 8

Implied assumption of the risk

Answer 8

Plaintiff voluntarily agrees to encounter a known risk. This doctrine has been merged into “comparative fault” in most jurisdictions, which is not a complete bar to recovery.

On MBE, assume joint & several liability also applies (unless the facts state otherwise).

Question 9

Vicarious liability for independent contractors

Answer 9

Generally, hiring party is NOT vicariously liable for the torts of his independent contractor, but is liable for its own negligence.

Exceptions:

• Independent contractor is hired to perform an abnormally dangerous activity;
• Duty of care is non-delegable (ex.: medical services).

Question 10

Thin skull plaintiff rule

Answer 10

The defendant must take his victim as he finds him. Even if serious injury or death is not reasonably foreseeable, the law still considers the defendant liable if the victim suffered from some physical or mental condition that made him or her vulnerable.

Question 11

Doctine of avoidable consequences

Answer 11

One who suffers an injury has a duty to exercise reasonable care in obtaining treatment and finding a cure. If he/she fails in this duty and a later injury occurs as a result of the initial injury, he/she may recover only for the original injury, not for the later injury.

Question 12

Res ipsa loquitur

Answer 12

• (1) The accident does not normally occur absent negligence on the part of the defendant; and
• (2) the instrumentality causing the accident was within the defendant’s exclusive control.

Question 13

Attractive nuisance doctrine

Answer 13

A defendant has a duty to exercise reasonable care to prevent injury to trespassing children if:

• (1) the artificial condition creates a foreseeable risk of unreasonable danger to trespassing children,
• (2) it is foreseeable that children are likely to trespass,
• (3) the child trespasser, because of age and maturity, is unaware of the risk, and
• (4) the risk of danger outweighs utility.

Question 14

Torts by employees and respondeat superior

Answer 14

An employer will be liable under respondeat superior for negligence by an employee committed within the scope of employment.

Intentional torts committed by employees are not within the scope of employment, subject to three exceptions:

• (1) The employee is furthering the business interests of the employer, for example, removing rowdy customers from the premises
• (2) Force is authorized in the employment, for example, a bouncer
• (3) Friction is generated by the employment, for example, a bill collector

For both intentional torts and negligence, employers can be liable for negligent hiring or negligent supervision.

Question 15

Strict products liability for assemblers of component parts

Answer 15

A person who assembles component parts into a finished product is strictly liable for defects in the components used. The manufacturer of the component part is also strictly liable for defects in the component.

Question 16

Public v. private necessity

Answer 16

Public Necessity: Where defendant enters upon the property of another without permission, and causes damage to the property, defendant is not liable for trespass or for property damage if the entry was necessary to prevent harm to the public.

Private Necessity: Entry was necessary to prevent greater harm to the defendant or his/her property. Defendant not liable for trespass, but must pay for damage to property.

Question 17

Battery

Answer 17

An intentional act that causes a harmful or offensive contact with the plaintiff, and the defendant must either desire to immediately cause the harmful or offensive contact, or know that it is substantially certain to occur.

Question 18

Defense of privilege

Answer 18

A privilege may exist where:

• (a) the person affected by the defendant’s conduct consents;
• (b) some important personal or private interest will be protected by the defendant’s ordinarily prohibited conduct, and this interest justifies the harm caused or threatened by the defendant’s conduct; or
• (c) the defendant must act freely in order to perform an essential function (ex. trespassing onto neighbor’s property to put out a fire in his home).

Question 19

Conversion

Answer 19

Conversion is an intentional act by a defendant that causes the destruction of or a serious and substantial interference with plaintiff’s chattel.

In determining the seriousness of the interference and the justice of requiring the defendant to pay the full value, the following factors are relevant:

• (1) the extent and duration of the defendant’s exercise of dominion or control;
• (2) the defendant’s intent to assert a right inconsistent with the other’s right of control;
• (3) the defendant’s good faith;
• (4) the extent and duration of the resulting interference with the plaintiff’s right of control;
• (5) the harm done to the chattel; and
• (6) the inconvenience and expense caused to the plaintiff.

Question 20

Trespass to land

Answer 20

Trespass to land is an intentional act that causes a physical invasion of a person’s real property. The intent required is just intent to enter the land. A mistaken belief that the entry was lawful is not a defense to trespass.

Actual or constructive possession will suffice for a claim of trespass. The claimant need not be the rightful owner of the land so long as they constructively possess the property.

Question 21

Assault

Answer 21

Assault is a volitional act, done with the requisite intent, which causes the plaintiff to experience a reasonable apprehension of an immediate harmful or offensive contact. Words alone are not enough without some physical act evidencing an intent to place victim in reasonable apprehension.

If the defendant threatens harm in the future or is discernibly unable to carry out the threat, there is no assault.

Question 22

Intentional infliction of emotional distress (direct claim)

Answer 22

Intentional infliction of emotional distress requires:

• (1) an act by defendant amounting to extreme and outrageous conduct;
• (2) intent to cause severe emotional distress or recklessness as to the effect of defendant’s conduct;
• (3) causation; and
• (4) severe emotional distress (physical harm is not required).

Conduct is extreme and outrageous if it transcends all bounds of decency. Conduct that is not normally outrageous may become so if:

• (a) It is continuous in nature
• (b) It is committed by a certain type of defendant (common carriers or innkeepers may be liable even for “gross insults”), or
• (c) It is committed against a certain type of plaintiff (children, elderly persons, pregnant women, etc.).

Question 23

Intentional infliction of emotional distress (bystander claim)

Answer 23

• (1) An intentional or reckless act amounting to extreme and outrageous conduct;
• (2) Plaintiff is an immediate family member or close relative of the victim;
• (3) Plaintiff is present and observes defendant’s conduct;
• (4) Defendant is aware of plaintiff’s presence.

Physical harm is not required. If victim is not a close family member, then plaintiff must show physical harm.

Question 24

False imprisonment

Answer 24

• (1) Defendant acts intending to confine a person within certain fixed boundaries;
• (2) that directly or indirectly results in such a confinement of the other; and
• (3) the other is conscious of the confinement or is harmed by it.

A victim is not“confined” if there is a reasonable means of escape.

Question 25

Trespass to chattels

Answer 25

A trespass to chattel may be committed by intentionally:

• (a) dispossessing another of the chattel, or
• (b) interfering with (damaging) a chattel in the possession of another.

Conversion grants relief for interferences with a chattel so serious in nature, or so serious in consequences, as to warrant requiring the defendant to pay its full value in damages. For those interferences not so serious in nature or consequences, trespass to chattels is the appropriate action.

Question 26

Transferred intent (torts)

Answer 26

The doctrine of transferred intent applies when:

• (a) A defendant intends to commit a tort against one person, but commits a different tort against that same person;
• (b) A defendant commits the intended tort, but against an unintended victim; or
• (c) A defendant commits a different tort than intended, and against an unintended victim.

Transferred intent does not apply chattel-to-person, only person-to-person. It applies to (i) assault, (ii) battery, (iii) false imprisonment, (iv) trespass to land, and (v) trespass to chattels.

Question 27

Respondeat superior v. negligent hiring

Answer 27

The defendant-employer has a duty to a plaintiff to exercise reasonable care in hiring employees, such that a defendant may be liable to a plaintiff if an employee subsequently injures the plaintiff. This is negligence in hiring.

On the other hand, the vicarious liability of an employer for his employee’s torts (respondeat superior) applies where the negligent conduct is that of the employee and liability is attributed by law to the employer. In negligent hiring, the employer is liable for his own negligence in hiring the employee, not vicariously liable for the wrongful conduct of the employee.

Question 28

Do parents have a duty to control their children?

Answer 28

Yes, a parent is under a duty to exercise reasonable care to control his minor child so as to prevent the child from intentionally harming others or creating an unreasonable risk of bodily harm to them, if the parent knows or has reason to know that he has the ability to control his child and knows or should know of the necessity and opportunity for exercising such control.

However, a parent is generally not vicariously liable for the negligence of their children. However, the parent may be held liable for her own negligence in allowing the child to do something that injures another’s person or property.

Question 29

Negligent infliction of emotional distress (near miss cases)

Answer 29

The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff, who must satisfy two requirements to prevail:

• (1) The plaintiff must be within the “zone of danger”
• (2) The plaintiff must suffer physical symptoms from the distress.

Severe shock to the nervous system that causes physical symptoms will satisfy.

Question 30

Negligent infliction of emotional distress (bystander cases)

Answer 30

A bystander outside the zone of danger of physical injury who sees the defendant negligently injuring another can recover the damages for their own distress as long as:

• (1) The plaintiff and the person injured by the defendant are closely related
• (2) The plaintiff was present at the scene of the injury and personally observed or perceived the event.

Most states drop the requirement of physical symptoms in this situation.

Question 31

Liability for animals (domestic v. wild)

Answer 31

An owner is not strictly liable for injuries caused by domestic animals (including farm animals) unless they have knowledge of that animal’s dangerous propensities that are not common to the species. Injury caused by the normally dangerous characteristics of domestic animals (for example, bulls or honeybees) does not create strict liability. Owners are strictly liable for reasonably foreseeable damage caused by trespass of his animals.

An owner is strictly liable to licensees and invitees for injuries caused by wild animals, even if kept as pets. Strict liability generally will not be imposed in favor of trespassers. To recover for injuries from a wild animal (or abnormally dangerous domestic animal) a trespasser must prove the owner’s negligence.

Question 32

Products liability theories

Answer 32

There are five theories of liability a plaintiff may use for products liability:

• Intent
• Negligence
• Implied warranties of merchantability and fitness for a particular purpose
• Representation theories (express warranty and misrepresentation)
• Strict liability

Question 33

Elements for strict products liability claims

Answer 33

To find liability under a strict liability theory, the plaintiff must show:

• (1) Defendant is a merchant (not a casual seller or services provider)
• (2) The product is defective (manufacturing, design, information)
• (3) The product was not substantially altered since leaving the defendant’s control
• (4) The plaintiff was making a foreseeable use of the product at the time of the injury (foreseeable does not mean intended)

Privity between the plaintiff and defendant is NOT a requirement.

Disclaimers are irrelevant in cases based on negligence or strict liability if personal injury or property damages occur.

Question 34

Manufacturing v. design v. information defects

Answer 34

If a product emerges from manufacturing different from and more dangerous than the products that were made properly, it has a manufacturing defect. The defendant will be liable if the plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect (the defendant must anticipate reasonable misuse).

When all products of a line are the same but have dangerous propensities, they may be found to have a design defect. Manufacturers will not be held liable for some dangerous products (for example, knives) if the danger is apparent and there is no safer way to make the product. The plaintiff usually must show that the defendant could have made the product safer, without serious impact on the product’s utility or price (the “feasible alternative” approach). The consumer expectations test (above) can also be applied to design defects.

A product may be defective as a result of the manufacturer’s failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent to users. For prescription drugs and medical devices, warnings given to “learned intermediaries” (for example, the prescribing physician) will usually suffice in lieu of warnings to the patient. A manufacturer may be liable for an information defect when it knows of an unintended use and does not warn against the potential dangers of the unintended use.

Question 35

Products liability based in negligence

Answer 35

Negligence in a products case is proved the same as in a “standard” negligence case. The plaintiff may invoke res ipsa loquitur if the defect is something that would not usually occur without the manufacturer’s negligence. Note that it is very difficult to hold intermediaries (such as retailers and wholesalers) liable for negligence because they can usually satisfy their duty through a cursory inspection. In addition, an intermediary’s negligent failure to discover a defect does not supersede the original manufacturer’s negligence unless the intermediary’s conduct exceeds ordinary foreseeable negligence.

The plaintiff must show that those designing the product knew or should have known of enough facts to put a reasonable manufacturer on notice about the dangers of marketing the product as designed. Negligent design is not shown, however, if the danger of the product becomes apparent only after the product reaches the public.

Hence, the absence of any previous complaints about a defect would be helpful as a defense. Evidence of compliance with statutes or regulations is evidence of a lack of a defect, but is not controlling.

Physical injury or property damage must be shown. Recovery will be denied if the sole claim is for economic loss.

Question 36

Affirmative defenses in animal & products liability cases

Answer 36

In contributory negligence states, contributory negligence is no defense if the plaintiff has failed to realize the danger or guard against it. It is a defense if the plaintiff knew of the danger and their unreasonable conduct was the cause of the harm from the wild animal or abnormally dangerous activity or defective product. Assumption of the risk is a good defense to strict liability.

Many comparative negligence states apply their comparative negligence rules to strict liability cases.

Question 37

Defamation & actual malice

Answer 37

Plaintiff must show:

• (1) a false statement purporting to be fact;
• (2) publication or communication of that statement to a third person;
• (3) fault; and
• (4) damages, or some harm caused to the person or entity who is the subject of the statement.

Publication must be made either intentionally or negligently; therefore, if it was not reasonably foreseeable that the defamatory statement would be overheard by a third party, the fault requirement for the publication element is not satisfied.

A public figure suing for damages in a defamation action must prove actual malice. To establish actual malice, a plaintiff must show that the utterance was false and that it was made with knowledge of its falsity or with reckless disregard of whether it was false or true. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of the communication when it was published.

Question 38

Defamation damages (slander v. libel)

Answer 38

The type of damages the plaintiff must prove depends on the type of defamation (libel or slander) involved.

Libel is a defamation that is embodied in permanent form. It is often a written or printed publication of defamatory language. Defamation in radio and television programs is treated by most courts today as libel. The plaintiff typically does not need to prove special damages to recover and general damages are presumed. (A minority of courts will presume general damages only if the statement is defamatory on its face (libel per se) and require proof of special damages if the statement requires reference to extrinsic facts to establish its defamatory nature (libel per quod).)

Slander is spoken defamation. The plaintiff must prove special damages, unless the defamation falls within one of the slander per se categories, or defamatory statements that:

• Adversely reflect on the plaintiff’s business or profession
• State that the plaintiff has committed a serious crime
• Impute that the defendant has engaged in serious sexual misconduct
• State that the plaintiff has a loathsome disease

Question 39

Defenses to defamation

Answer 39

(1) Consent is a complete defense. The rules relating to consent to intentional torts apply here.
(2) In cases where the plaintiff is not obligated to prove falsity of the statement as part of their own case, the defendant may prove truth as a complete defense.
(3) Privilege:

• Absolute privilege can never be lost. The defendant may be protected by an absolute privilege for the following:
  
  • Communications between spouses
  • Remarks made during judicial proceedings, by legislators during proceedings, and by federal executive officials in “compelled” broadcasts
• Qualified privilege can be lost through abuse. A qualified privilege arises only when there is a public interest in encouraging behavior. Some examples include:
  
  • References and recommendations
  • Reports of public hearings or meetings
  • Statements made to those who are to take official action
  • Statements made to defend one’s own actions, property, or reputation

Question 40

Private nuisance v. public nuisance

Answer 40

A private nuisance is a substantial, unreasonable interference with another person’s use or enjoyment of her property. The interference must be offensive, inconvenient, or annoying to the average person in the community. It is not a substantial interference if it merely interferes with a specialized use of the land. To establish unreasonable interference, required for nuisances based on intent or negligence, the severity of the inflicted injury must outweigh the utility of the defendant’s conduct.

Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community, for example, using a building for criminal activities such as prostitution. Recovery by a private party is available for a public nuisance only if the private party suffered unique damage not suffered by the public at large.

Question 41

Standard of care for people with disabilities

Answer 41

In a lawsuit based on negligence, the usual standard of care is ordinary and reasonable care under the circumstances. The standard changes when the defendant has a major physical disability such as blindness. In that situation, the standard becomes ordinary and reasonable care for a person with that disability.

Question 42

Standard of care in emergency situations

Answer 42

A defendant must act as a reasonably prudent person would under the same emergency conditions. The emergency is not to be considered, however, if it is of the defendant’s own making.

It is up to the jury to determine whether the defendant acted reasonably during the emergency.

Question 43

Unascertainable cause approach to proximate cause

Answer 43

The alternative liability or unascertainable cause approach of Summers v. Tice applies when two or more persons have been negligent but it cannot be determined which one caused the plaintiff’s injury. The court will shift the burden of proof to each of the negligent defendants to show that his negligence was not a factual cause of the injury.

This approach does not apply when someone was negligent but it cannot be determined who was negligent; it only applies when multiple people were negligent and it cannot be determined which one caused the damage.

Question 44

Strict liability for abnormally dangerous activities

Answer 44

Courts impose two requirements for finding an activity to be abnormally dangerous:

• (1) The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors
• (2) The activity is not a matter of common usage within the community.

Strict liability does not apply when the injury is caused by something other than the dangerous aspect of the activity (for example, a dynamite truck suddenly blows a tire and hits a pedestrian but does not explode).

Question 45

Appropriation of plaintiff’s picture or name (invasion of privacy)

Answer 45

It is necessary to show unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage.

Liability is generally limited to advertisements or promotions of products or services. Mere economic benefit to the defendant (not in connection with promoting a product or service) by itself is not sufficient.

Question 46

Intrusion upon plaintiff’s affairs or seclusion (invasion of privacy)

Answer 46

This claim forbids such acts as eavesdropping, spying, interception of phone calls or electronic communications, and other similar conduct. The act of prying or intruding must be highly offensive to a reasonable person. Furthermore, the thing into which there is an intrusion must be private. Photographs taken in a public place are not actionable.

Question 47

Publication of facts placing plaintiff in false light (invasion of privacy)

Answer 47

“False light” exists where one attributes to the plaintiff views they do not hold or actions they did not take. The false light must be something highly offensive to a reasonable person under the circumstances. For liability to attach, the defendant must circulate the statement to the public at large. Sharing the statement with only one or a few persons will not be sufficient to trigger liability.

Question 48

Public disclosure of private facts about plaintiff (invasion of privacy)

Answer 48

This wrong involves public disclosure of private information about the plaintiff (for example, matters of public record are not sufficient). The public disclosure must be highly offensive to a reasonable person of ordinary sensibilities. Liability may attach even though the actual statement is true. First Amendment limitations probably apply if the matter is of legitimate public interest.

Question 49

Defenses to invasion of privacy claims

Answer 49

Some defenses to the right of privacy actions are consent and the defamation privilege defenses. Truth generally is not a good defense; nor is inadvertence, good faith, or lack of malice.

Question 50

Duty of care for professionals

Answer 50

A person who is a professional is required to exercise such superior judgment, skill, and knowledge as he actually possesses.

Question 51

Shopkeeper’s privilege/shoplifting detentions

Answer 51

A shopkeeper has a privilege to detain a suspected shoplifter for investigation. For the privilege to apply, the following conditions must be satisfied:

• (1) there must be a reasonable belief as to the fact of theft,
• (2) the detention must be conducted in a reasonable manner and only nondeadly force can be used, and
• (3) the detention must be only for a reasonable period of time and only for the purpose of making an investigation.

Question 52

Contribution v. indemnity

Answer 52

Contribution allows a defendant in a joint and several liability action required to pay more than his share of damages to recover from the other jointly liable parties for the excess. In other words, contribution apportions responsibility among those who are at fault.

Indemnity involves shifting the entire loss between or among tortfeasors, and is available where:

• (a) there is a contractual promise to indemnify;
• (b) there is a special relationship between the defendants that would allow for vicarious liability; or
• (c) the defendant is a supplier in a strict products liability case who is liable to an injured customer, thus giving the supplier a right of indemnification against previous suppliers in the distribution chain.

In addition, some states allow a joint tortfeasor to recover indemnification from a co-joint tortfeasor where there is a considerable difference in degree of fault.

Question 53

Interference with business relations

Answer 53

To establish a prima facie case for interference with business relations, the following elements must be proved:

• (1) existence of a valid contractual relationship between plaintiff and a third party or a valid business expectancy of plaintiff;
• (2) defendant’s knowledge of the relationship or expectancy;
• (3) intentional interference by defendant that induces a breach or termination of the relationship or expectancy; and
• (4) damage to plaintiff.

Question 54

What is the rule for imposing vicarious liability to a bartender who served drinks to an intoxicated driver? How do dramshop acts modify this rule?

Answer 54

At common law, no liability was imposed on vendors of intoxicating beverages for injuries resulting from the vendee’s intoxication, whether the injuries were sustained by the vendee or by a third person as a result of the vendee’s conduct.

Many states, in order to avoid this common law rule, have enacted “dramshop acts.” Such acts create a cause of action in favor of any third person injured by the intoxicated vendee. Without a dramshop act, the bartender will not be vicariously liable.