Torts

Question 1

Intentional Tort

Answer 1

Intentional interference with a person and/or their property. Need intent.

ABCFIITT
Assault, Battery, Conversion, False Imprisonment, Intentional Infliction of Emotional Distress, Trespass to Land, Trespass to Chattels

Question 2

Determining Intent

Answer 2

Result Desired - acted in order to bring about what actually happened, or knew in acting that what actually occurred was substantially certain to happen

Transferred Intent - intended to harm one party but harmed the plaintiff instead. applies from person to person, tort to tort; and person to person AND tort to tort.

Question 3

Transferred Intent Applicable Torts

Answer 3

Battery, assault, false imprisonment, trespass to land, trespass to chattels (recent exams primarily assault, battery, false imprisonment)

Question 4

Assault (Intentional Tort)

Answer 4

Act by Defendant - volitional movement, not just words
Intent - to cause harmful or offensive contact
Well-founded Apprehension of Immediate Battery - reasonable, immediate
Causation - caused or set in motion causing the apprehension

Question 5

Battery (Intentional Tort)

Answer 5

Harmful or Offensive Touching - resulting in injury/pain/disablement or offend reasonable person’s sense of personal dignity (awareness of contact not required)
By the Act or Authority of Defendant - volitional movement
Intent - to inflict harmful or offensive touching
Causation - substantial factor in causing injury

Question 6

Conversion of Chattels

Answer 6

Plaintiff in Possession or Entitled to Immediate Possession - generally not intangibles unless “merged” w/ an instrument (like stocks)
Act by Defendant - volitional movement by the D
Intent - to deal w/ chattel in the manner in which he actually did so
Invasion of Chattel Interest - serious invasion of another’s chattel
Causation - caused or been substantial factor
Remedy - total value of chattel at time and place of conversion. no damages for sentimental value

Question 7

Invasion of Chattel Interest (Conversion of Chattel)

Answer 7

Destruction
Dispossession
Refusal to Surrender Chattel on Demand
Misdelivery of Chattel - even if in good faith
Using Chattel w/o Authority - have actual possession, but no authority to make use of it
Receipt of Stolen Property - even if in good faith
Disposing of Stolen Property - even if in good faith

Question 8

Chattels - Distinguishing between Trespass vs Conversion

Answer 8

Extent of the dominion over the chattel
Duration of interference
Harm done to chattel
Inconvenience/expense to injured party
Good faith or lack thereof by controlling party
Intent to assert a right inconsistent w/ rightful possessor’s control

Question 9

False Imprisonment

Answer 9

Act by Defendant - volitional act causing P’s confinement, mere words may be sufficient
Intent - intent to confine either P or member of immediate family
Total Confinement or Obstruction of Plaintiff - diff methods, time irrelevant, awareness required unless injury is caused, availability of reasonable means of escape available and known then no confinement
Causation - either legally caused or set in motion the force

Question 10

Methods of Confinement

Answer 10

Physical Force - P need not resist and need not be overpowered
Threats or Duress - Threats of harm to P or member of family/duress relating to P’s property
Barriers to Escape - Actual or apparent physical barrier
Refusal to Release - Legal duty to release, but refusal to do so
False Arrest - improper assertion of legal authority and P submits

Question 11

Intentional Infliction of Mental or Emotional Distress

Answer 11

Act by D - words alone my suffice
Constituting Extreme and Outrageous Conduct - conduct must have been “outrageous” to person of normal sensibilities; if P has special sensitivities, actionable if D knew or had reason to know
Intent to Cause Severe Emotional Distress - desire to cause result or knowledge of substantial certainty of result
Causation - actual and proximate
Damages - more outrageous conduct, less need for physical signs

Question 12

Trespass to Land

Answer 12

Exclusive Possession or Entitled to Immediate Possession - invasion beneath or above surface; lessee could maintain action for trespass
Act by D - volitional movement
Intent - no specific intent for trespass, just intend to go there
Invasion of Land - physical object penetrating either land or airspace; may cause other person to enter
Causation - substantial factor
Damages - if no actual damage, liable for nominal damages

Question 13

Trespass to Chattels

Answer 13

Plaintiff in Possession or Entitled to Immediate Possession
Act by Defendant - volitional movement
Intent - deal w/ chattel in manner in which actually dealt with; need not know chattel not his own
Invasion of Chattel Interest
Causation - volitional movement, substantial factor
Actual Damages - actual damage necessary, no nominal damages
Remedies - for dispossession, recover for loss of use and for harm to it, or the value of the chattel at time of conversion

Question 14

Invasion of Chattel Interest (Trespass)

Answer 14

1) impaired quality, value or condition
2) deprived possessor of use
3) caused bodily harm to possessor or chattel

Dispossession - includes theft
Intermeddling - interferes, but does not actually challenge interest, like graffiti

Question 15

Privileges and Defenses (Intentional Torts)

Answer 15

Consent - may be express, apparent, or implied by law.

Self-Defense

Defense of Others - anyone endangered, other party entitled to act in self-defense

Defense of Property

Re-Entry on Land - not allowed since there are judicial procedures for adequate remedy

Re-Capture of Chattels - only for tortious dispossession and shopkeeper’s privilege

Privilege to Arrest

Necessity

DARNCOPS: Discipline Cases; Arrest; Recapture of Chattels; Necessity; Consent; Others, Defense of; Property, Defense of; and Self Defense

Question 16

Self-Defense

Answer 16

Reasonable

Threats of Force - if threats only place P in apprehension, D can threaten more force than privileged to use

Non-Deadly Force - reasonable apprehension of bodily contact, reasonable means used to avoid the contact, not duty to retreat UNLESS P not intentionally creating risk/P mistakes D’s identity (D must use reasonable means to resolve mistake)

Deadly Force - reasonable apprehension of serious harm, majority view no duty to retreat but minority view duty to retreat when that can be safely accomplished except when D is in his own home, retreating would risk danger to third party, or D is attempting valid arrest

Question 17

Limitations on Self-Defense Privilege

Answer 17

Danger Terminated - if D knows danger terminated, no SD

Use of Excessive Force - D liable for whatever amt of the force was excessive, and P may protect self

Privileged Use of Force by P - such as valid arrest

Intentional Use of Force Against Third Person - if third person comes between D and P, then D not privileged against liability for harm to third person

Question 18

Defense of Property

Answer 18

Non-Deadly Force - intrusion of D’s land/chattel not privileged or D reasonably believed it was not privileged, reasonably believe force necessary, D must have demanded intruder desist and intruder ignored demand

Deadly Force - generally may not be employed in defense of property

Mechanical Devices - devices are either reasonable and necessary or customary in area, D gives adequate warning of use of device, intrusion must actually pose threat of death or serious injury to D or immediate family

Threats - privileged to threaten greater amount of force than would be permitted to actually use

Question 19

Re-Capture of Chattels

Answer 19

Tortious Dispossession - D is privileged to use reasonable, non-deadly force to recapture chattel if four conditions met:

1) Immediate Right to Possession; 2) Demand for Return; 3) Fresh Pursuit - “reasonably diligent in discovering loss and reasonably diligent in efforts at recapture; 4) P at fault - either tortiously dispossessed or receiver w/ knowledge of stolen goods

Shopkeeper’s Privilege - storekeepers can temporarily detain anyone reasonably suspected of tortiously taken goods/failed to make payment. Reasonable mistake protected if meets requirements.

Requirements:
1) Reasonable Suspicions - stopping shoppers at random and questioning not privileged; 2) Investigation on Premises - needs to be on store premises or immediate vicinity; 3) Reasonable Force; 4) Reasonable Manner and Duration of Detention - limited to period of time reasonably necessary for investigation

Question 20

Privilege to Arrest

Answer 20

Misdemeanor Arrest Without Warrant

Felony Arrest Without Warrant

Arrest made Under Warrant - warrant must be fair on its face

Amount of Force Privileged - diff btwn misdemeanor and felony

Right to Invade Land - if has privilege to use force to arrest, also privileged to enter another’s land

Effect of Defendant’s Misconduct after Arrest - if valid arrest followed by excessive force/delaying release on bail, original arrest not privileged, or modern view is D is liable for misconduct following arrest

Question 21

Misdemeanor Arrest Without Warrant

Answer 21

Accepted common law no, most jurisdictions allow if misdemeanor in presence of police officer

Question 22

Felony Arrest Without Warrant

Answer 22

Private Citizen - felony is being committed, or reasonably appears to be committed in his presence

Police Officer - reasonable grounds for believing both that a felony had been committed and person arrested had committed it

Question 23

Necessity

Answer 23

May interfere w/ real or personal property of another when it is reasonably necessary to avoid threatened injury from natural or other force and where threatened force is substantially more serious than invasion

Public necessity - act for public good

Private necessity - act solely for benefit or person/property from destruction or serious injury. actor must pay for any injury they cause

Question 24

Strict Liability

Answer 24

Liability w/o regard to the “fault” of the defendant.

Absolute Duty on party of D to make it safe,
Breach of that Duty,
Breach was the Actual and Proximate Cause, and
Damage to the P’s Person or Property

Question 25

Products Liability (Strict Liability)

Answer 25

Absolute duty owed by commercial seller
Breach of duty is defective product
Plaintiff must prove harm was actually caused by the defectiveness
Damage/Injuries

Question 26

Absolute Duty Owed by Commercial Supplier (Products Liability)

Answer 26

Commercial Seller - D in business of selling the product (not casual seller)
Supplier of Product Rather than Service - liability only to supplier of actual product
To whom is duty owed - liability to users/consumers of product, their family members, guests and employees. majority view does not include bystanders, even if foreseeable
Requirement of Privity - privity is when there is a contractual relationship. May limit defendant’s liability under warranty theories

Question 27

Breach of Duty - Defectiveness (Product Liability)

Answer 27

P must prove defective either due to manufacture or design

Definition of defect:
Restatement - “defective condition unreasonably dangerous” - negligence not necessary
Manufacturing defect - must be recognizable risk of harm
Design defect - better or safer way to make the product, or product is too dangerous to market

Special Design Problems:
Intended Use - manufacturers are required to anticipate secondary problems which are likely to occur
Unavoidably Unsafe Products - unavoidably unsafe products are not considered defective

Question 28

Actual Causation (Product Liability)

Answer 28

Substantial factor test - P has burden of proving harm resulted from defective product and “defectiveness” existed when product left the control of D w/o substantial change

Question 29

Damages (Product Liability)

Answer 29

Seller liable for injuries to user’s person or property caused by defect, generally disallows recovery for economic loss like lost profits

Question 30

Warranty (Product Liability)

Answer 30

Warranty recovery based on seller misrepresented product or a material fact

Express Warranty: Any representations of fact upon which buyer relied - seller need not intend to have it be an express warranty

Implied Warranty: Same manner as above w/o express assertion

UCC - also has warranty provisions for every sale of good: 1) merchantability and 2) fitness for a particular use. These provisions require personal injury or property damage

Question 31

Abnormally Dangerous Things and Activities (Strict Liability)

Answer 31

To be considered abnormally dangerous, a thing or activity must have the following:

1) Risk of Serious Harm - to person or property of others
2) Impossibility of Elimination - impossible to eliminate risk of harm
3) Not a Matter of Common Usage - must not be common usage in community

Ex: Blasting, crop-spraying, burning of fields, transport poisonous gas, parachuting

Question 32

Abnormally Dangerous Things - Animals (Strict Liability)

Answer 32

Domestic Animals w/o Known Dangerous Propensities - not strictly liable

Domestic Animals w/ Known Dangerous Propensities - strictly liable in tort

Wild Animals - strictly liable for what resulted from animal’s natural propensities

Protected Persons:
Licensees and Invitees - if P came onto D’s land as invitee/licensee, usually protected through strict liability
Trespassers - intentional/negligent trespassers usually not protected in the absence of negligence on part of owner. Exception: injury inflicted by vicious watchdog

Question 33

Defenses (Strict Liability)

Answer 33

Contributory Negligence - Not a Defense
- Unless P was aware of risk and his contributory negligence caused accident

Assumption of Risk
- P voluntarily assumes risk, then P may not be able to recover. Implied if D was acting for P’s benefit. No assumption of risk where other alternative for action would be unreasonable.

Comparative Negligence
- Lower P’s recovery where P’s injury caused partially by own carelessness

Scope of Risk
- If injury caused by outside of scope of what makes activity hazardous, P may not recover