Torts

Question 1

What torts does transferred intent apply to?

Answer 1

Only applies to battery, assault, false imprisonment, trespass to land, and trespass to chattels

Question 2

What is the rule/elements of battery? (tort)

Answer 2

Rule: D causes harmful or offensive contact with P’s person or something closely connected to P

i) Intent: D must either:
(1) Desire to cause an immediate harmful or offensive contact; or
(2) Know that such contact is substantially certain to occur

ii) Harmful or Offensive Contact
(1) Inflict pain or impairment of any function of the body
(2) Offensive to a reasonable person
(3) P need not be aware of the contact (unlike assault)

iii) To the person or something physically closely connected thereto
b) P does not have to prove injury; will get compensatory damages just by showing the elements

Question 3

What is the defense to battery?

Answer 3

consent

Question 4

What is the rule for assault? (Tort)

Answer 4

Rule: D intentionally causes P to be in reasonable apprehension of an immediate harmful or offensive contact

i) Intent - D must:
(1) Act with the desire to cause an immediate harmful or offensive contact or the apprehension of such contact, or
(2) Know that such a result is substantially certain to result

ii) Reasonable Apprehension – objective (Reasonable Person) standard
(1) If the apprehension is reasonable, it doesn’t matter whether D could actually carry out the threat.

iii) Imminent Battery – Must be able to occur almost instantly

Question 5

What is the rule/elements for false imprisonment?

Answer 5

Rule: D intentionally causes P to be confined in a bounded area against P’s will and P knows of the
confinement or is injured by it

i) Intent
(1) D desires to confine or restrain P in a bounded area, or
(2) Knows that such confinement is virtually certain to result

ii) Confinement in Bounded Area
(1) Physical barriers, threats of force, failing to release P after duty to release arises, or the invalid assertion of legal authority
(2) No duration requirement
(3) If P knows (actual knowledge) of reasonable means of escape, then no confinement and no liability
(a) Reasonable = no threat of harm to P or property; can’t expose P to risk of embarrassment

iii) Against P’s Will – Consent is a defense
iv) P is aware of confinement OR injured thereby (harm/damages)

Question 6

What is the rule/elements for Intentional Infliction of Emotional Distress? (IIED)

Answer 6

Rule: D engages in an intentional or reckless act amounting to extreme and outrageous conduct that causes P severe emotional distress

i) Intentional or Recklessness
(1) Intentional = D acts with the desire to cause severe emotional distress or knows that such severe emotional distress is virtually certain to occur
(2) Recklessness = D acts in conscious disregard of a high degree of probability that emotional distress will follow

ii) Extreme and Outrageous Conduct
(1) Conduct exceeds all bounds tolerated by civilized society
(2) Offensive or insulting language generally not enough, except when:
(a) D is a common carrier/innkeeper;
(b) D knows of P’s particular sensitivity; or
(c) D is an authority figure using racial/ethnic slurs against a subordinate

iii) Severe Emotional Distress
(1) P does not have to prove physical injury, but distress must be severe – greater than reasonable person (objective test) would expect to endure
(2) Must be substantial/long lasting as opposed to trivial/transitory

Question 7

What is the rule/elements for trespass to land?

Answer 7

Rule: Intentional act that causes invasion of P’s land, interfering with P’s possessory interest in the land

i) Intent
(1) D desired to enter the land/caused something to enter, or
(2) D knew that land entry was substantially certain to result
(a) Mistake is not a defense

ii) Entry
(1) D enters or causes someone/something to enter (ex: bullet hypo)
(2) D enters the land lawfully but then refuses to leave when required
(3) D fails to remove/eject from P’s land when under legal duty to do so

iii) P’s Land—anyone in possession can bring claim (landowner, tenant, adverse possessor)

Question 8

What is the rule/element for trespass to chattels?

Answer 8

Rule: D interferes with P’s chattel, causing damages

i) Intent
(1) D intentionally performs the physical act that interferes with P’s chattel
(2) Liable even though D did not intend to trespass (i.e., does so with good faith)
(3) Mistake is not a defense

ii) Interference = Uses or borrows without authorization
iii) Plaintiff’s Chattel = P’s personal property

iv) Actual Damages – Unlike trespass to land, proof of actual damages is an element of the cause of action for trespass to chattels. Actual damages to the chattel itself are not necessary; however, actual damages would include the value of loss of use of the chattel
during a dispossession or the cost to remedy an intermeddling

Question 9

What are the remedies for trespass to chattels?

Answer 9

Damages: Cost of repair, fair market rental value, and potentially punitive damages if D is a particularly bad actor (willful, wanton, or malicious conduct).

Replevin: Get back personal property of which one has been wrongfully dispossessed

Question 10

What is the rule / elements for conversion?

Answer 10

Rule: Intentional act by D, where D exercises dominion or control that causes the destruction of,
or serious and substantial interference with, P’s chattel

i) Intent
(1) Mistake no defense – liable even if acting in good faith and no intent

ii) Dominion and Control (Bona Fide Purchaser)

iii) Destruction or Serious and Substantial Interference = the exercise by D of dominion and
control over the chattel
(1) Interference with P’s property interest is more significant than trespass to chattel. Longer
period of interference and greater use by D leads to conversion

Question 11

What are the remedies for conversion?

Answer 11

Remedies

i) Forced sale (common) – Market value at time converted
ii) Replevin – Action brought by P to get personal property back

Question 12

What are the defenses and privileges to intentional torts?

Answer 12

POPCANS

• Privilege
• Others (defense of)
• Property (defense of) - reasonable force; no deadly
• Consent - express/implied (reasonable); Mistake can negate consent when it goes to the consequences or nature of the act
• Authority (arrest; shopkeeper’s privilege)
• Necessity
• Self-defense (honest and reasonable belief; proportionate force)

Question 13

What are the elements of negligence?

Answer 13

Duty, breach, causation (actual and proximate), damages

Question 14

What is the duty of an ordinary person to others?

Answer 14

D has a legal duty to act as an ordinary, prudent, reasonable person taking precaution against
unreasonable risk of injury to others

Question 15

What is nonfeasance?

Answer 15

Failure to intervene/confer benefit on the P

Question 16

No duty to rescue or aid, except when:

Answer 16

(1) D’s tortious conduct creates need to rescue;
(2) Undertaking to act—at common law, you do not have to intervene but if you do, must act
reasonably (many states have enacted Good Samaritan statutes—rescuer protected unless
rescuer is reckless or engages in intentional wrongdoing)
(3) Special relationship of dependence or mutual dependence (carrier/passengers, inn
keeper/guest, captain/passengers, drinking buddies)

Question 17

Do providers of alcohol have a duty to control their customers?

Answer 17

(a) Traditional Rule: Purveyor not responsible for DUI injuries
(b) Dram Shop Acts: impose liability on establishments when they know, or should know, a patron is drunk and that person drives while intoxicated and harms a third party

Question 18

What is negligent entrustment?

Answer 18

When D gives something dangerous to someone D knows, or should know, is not competent to handle it (i.e., Father gives gun to infant who shoots P)

Question 19

Generally, there is no duty to protect another person from third party criminal conduct (nonfeasance) unless:

Answer 19

(a) Special relationship – Landlord/Tenant, Business/Invitee
(b) Some jurisdictions only find a duty where there is a special relationship and prior similar incidents that make the third party criminal conduct particularly foreseeable

Question 20

What is the duty of a government entity with a Proprietary function (acting in private area)?

Answer 20

Treated as any other D for duty analysis

Question 21

What is the duty of a government entity doing Discretionary activity/function (using judgment and allocating resources i.e., setting policy)?

Answer 21

Courts will not find a duty

Question 22

What is the duty of a government entity doing a ministerial function?

Answer 22

Duty once government has undertaken to act (e.g.,: stop

sign installed incorrectly leading to accident)

Question 23

What is the Public Duty Doctrine?

Answer 23

Courts find no duty when police officers/firefighters fail to provide an adequate response, except when:

(a) Special relationship; or
(b) Agency has increased the danger beyond what would otherwise exist

Question 24

What are the elements of Negligent Infliction of Emotional Distress (NIED)?

Answer 24

D engages in negligent conduct and, as a result, P suffers emotional distress + some sort of physical manifestation

(a) Most jurisdictions require P to be in the zone of danger – At risk of physical harm
(b) P must have suffered a physical manifestation of the emotional distress, proving genuineness

Question 25

What are the exceptions to the general requirements for NIED?

Answer 25

(i) D negligently shares information about the death of a loved one
(ii) D negligently mishandles a corpse

Question 26

When can a bystander recover for NIED?

Answer 26

Physical harm occurs to a close relative and P suffers emotional distress as a result of injury to the close relative

(a) P was located near the scene of the incident
(b) P suffered severe emotional distress
(c) P had a close relationship with the victim (immediate family member)

Question 27

What is an invitee and what duty does a Landowner have to them?

Answer 27

Invitees = Enters onto D’s land at D’s express or implied invite and for a purpose relating to D’s interest or activities

-D has a duty to exercise reasonable care to prevent injuries caused by activities conducted on D’s land

Question 28

What is a licensee and what duty does a landowner have to them?

Answer 28

Licensees = Enters D’s land with D’s express or implied permission and are not there for a purpose benefiting D or D’s activities, nor is the land held open the public (i.e., social guest)

-duty: Must warn of known concealed dangers (just warn, not cure)

Question 29

What is a trespasser and what duty does a landowner have to them?

Answer 29

Trespassers = Enters without express or implied consent of land possessor

-Duty to avoid infliction of willful or wanton harm

Question 30

What is the duty of a landowner who is engaged in an activity on the land?

Answer 30

Duty of reasonable care owed to all except trespassers

Question 31

To whom does a landowner have a duty to reasonably search out dangers on the property?

Answer 31

Invitees only

Question 32

What is the duty of a landowner who has known or frequent trespassers (must be obvious- e.g., a well-worn path)?

Answer 32

Duty to warn of concealed dangerous artificial conditions

Question 33

When does a landowner have a duty to child trespassers? (Attractive Nuisance Doctrine)

Answer 33

A heightened standard of care may apply as to artificial conditions on D’s land. Even though the child is trespassing, if the below prerequisites are met, the child will be treated as an invitee:

(1) Too young to appreciate the danger;
(2) D knows, or has reason to know, of trespass;
(3) D knows of the dangerous condition;
(4) Condition is artificial (fountain, pool, equipment that looks fun to climb on); and
(5) The risk of danger of the artificial condition outweighs its utility and burden to fix it

Question 34

What is the duty of a landowner to plaintiffs not on the land but adjacent to it?

Answer 34

(1) Artificial condition on land –> duty of reasonably care

(2) Natural condition from land –> no duty except trees in urban areas

Question 35

A landowner is not liable to a tenant for negligence, except in the context of:

Answer 35

(a) Common area over which LL retains control;
(b) Negligent repairs;
(c) At time of lease, LL knows of a concealed dangerous condition; or
(d) LL knows that T is going to hold property open to the public

Question 36

In measuring the standard of care of a Reasonably Prudent Person (RPP), the law does not take into account mental ability, speed of reflexes, or mental health. The law does take into account:

Answer 36

(a) Physical conditions (blind, deaf, amputee) –> D held to the standard of a RPP with that condition (ex: RP blind person)
(b) Emergencies not of D’s own making considered by jury—(e.g., Rushing to hospital because child is dying). Jury can consider emergency to determine whether D acted reasonably under the circumstances

Question 37

Breach of duty = Failure to act as a RPP – Factors to analysis of breach:

Answer 37

(1) What is the probability of harm occurring from D’s conduct?
(2) What is the likely magnitude of the harm going to be?
(3) What is the burden on D to avoid the harm?

Question 38

How is a child’s conduct analyzed/measured for breach analysis?

Answer 38

Majority Rule: Minor D’s conduct is assessed according to what a reasonable child of the same age, experience, education, and intelligence, as D, would have done
(1) Exception: Children engaging in adult, inherently dangerous activities are held to an adult standard of care (ex: driving)

Question 39

What is the effect of statutory negligence?

Answer 39

Statutes that provide civil liability supersede common law of torts (ex: A state law says anyone injured in a car accident not wearing a seatbelt cannot recover in tort. Thus, if P was not wearing a seatbelt when injured in a car accident, P cannot recover in a negligence action)

Question 40

What is negligence per se and when is it applicable?

Answer 40

Where D’s conduct also violates a statute that does not provide for civil liability (criminal statute), that statute can establish the standard of conduct for breach of duty purposes(ex: crim traffic law)

Applicable if:

(1) P is member of a class the law is designed to protect; and
(2) Injury caused by D’s conduct is the type of statute sought to protect

If statute applies –> (majority rule) unexcused violation of the law establishes D breached duty to
P. P still needs to prove proximate cause, damages, etc.
(1) Exception: Excused statutory violation, like an emergency not of D’s own making, or
when it’s more dangerous to comply with the law
(2) Exception: Licensing statutes – Not having a license does not create liability
(a) Expired driver’s license is not negligence per se

When statute does not apply à statute will not set standard of care, case proceeds under RPP,
not under negligence per se

Question 41

What is the standard of care for physicians?

Answer 41

Medical Malpractice: Physicians required to possess and use the knowledge, skill, and training
of other physicians in good standing in relevant geographic community
(1) Specialists = National standard
(2) General practitioners = Locality standard

Question 42

What is the standard of care for Lawyers, Architects, Accountants?

Answer 42

so long as professional complies with custom, cannot be found to have breached duty—deviation from custom means breach of that duty

Question 43

What is the effect of lack of informed consent to medical care?

Answer 43

(1) Traditional (battery): Physician is liable for battery if no informed consent about risks; consent is negated because of lack of disclosure - still the case when there is gross deviation from actual consent (ex: P agrees to tonsillectomy, but leg is amputated instead)
(2) Traditional (negligence / physician rule): Physician must divulge risks that are customarily divulged

(3) New Trend – Standard of materiality / patient rule: Physician must divulge all material risks, risks that a
reasonable patient would want to know in deciding whether to undergo procedure. Failure to
divulge material risk is malpractice IF P can show that P would have refused procedure if risk was divulged

Question 44

when is a duty breached in a slip-and-fall case?

Answer 44

Slip-and-Fall Cases: P must show that D was negligent for not discovering, and repairing, the
dangerous condition—dangerous condition was present long enough that D should have noticed it (Ex: Slipped on rotten banana peel)

Question 45

What is Res Ipsa loquitur?

Answer 45

Allows jury to infer D’s breach based on the nature of the accident and D’s relationship to it

(1) Only used to show breach
(2) P needs to show:
(a) This sort of thing does not occur absent negligence;
(b) D is probably the responsible party because D had control over instrumentality of harm; and
(c) P did not contribute to the injury

Question 46

How must a plaintiff show cause-in-fact / actual cause?

Answer 46

P shows that, more likely than not, but for D’s negligence, P would not have been injured –>
other reasons don’t matter. Preponderance matters as long as more than 50%, then D is liable for full
extent of damages under “the but” for test

Question 47

When is the substantial factor test used?

Answer 47

Multiple Causes—Substantial Factor Test (instead of “but for” test) = Used when 2 Ds cause harm, but each D alone would have been sufficient to cause the entire harm –> each D is a cause-in-fact if D was a substantial factor in causing the harm (Ex: Two arsonists’ fires burn down same mansion)

–Assume joint and several liability = P can sue one or both Ds and collect entire amount from one D alone; D found liable can seek contribution from other D

Question 48

What is the loss of chance in re: to causation?

Answer 48

(typically medical malpractice situations) (not a majority rule)

(1) P must show that but for the medical malpractice, P would not have lost chance/died (e.g., if Doctor found the cancer, P would have had a 40% chance of survival—P would lose because there was a 60% chance P would have died)
(2) Many jurisdictions now recharacterize injury to loss of chance and damages are reduced but not extinguished

Question 49

When is alternative liability theory applied and what is its effect? (Summer v. Tice – two hunters shoot at quail and hit P)

Answer 49

(1) When to apply:
(a) All Ds are tortious/negligent;
(b) All Ds are being sued together (can’t use if one D is left out); and
(c) Small number of Ds

(2) Burden shifts to Ds to show that they were not the cause. If D cannot do so, they will be jointly/severally liable

Question 50

When is market share liability applicable?

Answer 50

(1) Generic product—P cannot show which of a large group of negligent D’s was responsible. P can sue those who might have caused P’s harm and each D is responsible based on its share of the market
(2) Several liability – X had 10% of the relative market; X will pay 10% of P’s damages unless X can show it could not have made product that harmed

Question 51

What is the eggshell skull rule?

Answer 51

Eggshell skull rule: Take your victims as you find them. It does not matter if P is susceptible to greater harm
because of a unique susceptibility, like an eggshell skull

(unforeseeable extent of harm does not cut off liabiilty)

Question 52

When is a cause superseding? (and thus cuts of liability)

Answer 52

Superseding Cause – Unforeseeable, intervening cause that breaks the chain of causation
between the initial wrongful act and the ultimate injury –> Relieves original tortfeasor of liability for
lack of proximate cause
i
-The more culpable the intervening force, the more likely it supersedes

-Subsequent negligent conduct is generally not so unforeseeable that it cuts off liability. Look for
passage of time to gauge whether the conduct moves from intervening to superseding (at some
point liability is cut off)

-Examples of superseding causes: Unforeseeable criminal acts or torts of third parties, highly
extraordinary harm arising from D’s conduct, including gross negligence by third parties, and acts
of nature

Question 53

What are the general categories of damages that are available for negligence?

Answer 53

a) Personal injury and property damages are recoverable
b) Compensatory damages – return P to pre-injury position

Nominal damages are not available; Punitive damages are not available for just negligence

Question 54

What must a plaintiff show to to recover compensatory damages and what are the 2 general types?

Answer 54

Requires:

(1) Type must be foreseeable (not the extent, but the type of damage);
(2) Must be reasonably certain (not speculative); and
(3) Not avoidable

Two categories:
(1) Special Damages – Pecuniary (medical costs), lost wages, and cost of repair
(a) Can recover past, present, and future damages (future reduced to present value)
(b) Collateral Source Rule – The fact that P has insurance does not mean D does not
have to pay up. Also applies to gratuitous services
(2) General Damages – More controversial because intangible and difficult to measure
(a) Pain and suffering

Question 55

When can punitive damages be recovered and what considerations are relevant for the amount?

Answer 55

Punitive Damages – never recoverable just for negligent conduct – D’s acts must be more culpable 
than negligence (like willful, malicious, or reckless)

• Wealth of D is highly relevant
  (1) The Due Process Clause limits the amount. Generally, more than 10% ratio to compensatory damages is considered to be unconstitutional

Question 56

What are the 3 general defenses to negligence?

Answer 56

1) contributory negligence and comparative fault
2) assumption of risk
3) avoidable consequences - P must take reasonable steps after injury to not increase/exacerbate

Question 57

What is the effect of a P’s negligence in a contributory negligence jurisdiction?

Answer 57

Any fault by P bars recovery

Question 58

What is pure comparative fault?

Answer 58

[Assume pure comparative fault where joint and several liability applies, unless told otherwise (default)]

(1) P can recover no matter how much P is at fault. Recovery is the amount of damages minus
the percentage that P is at fault
(2) Joint/several liability applies if multiple negligent D’s, and P is also at fault. Subtract out P’s percentage of fault and P can sue one or more Ds to get full remaining amount. If P sues only one D, the D found to be at fault can then seek contribution from the other Ds

Question 59

What is Modified Comparative Fault?

Answer 59

P is barred from recovery if P is as much at fault or more at fault than D

Question 60

What is the last clear chance doctrine?

Answer 60

(generally the wrong answer!)

(1) Only applies in context of contributory negligence
(2) If D’s negligence occurs after P’s, so D had the last opportunity to avoid, P is entitled to full recovery

Question 61

When is assumption of risk as a defense not permitted?

Answer 61

not allowed for necessities (E.g., LL rents an apartment or a hospital provides care)

Question 62

What must D show to establish an implied assumption of risk defense?

Answer 62

Recovery will be barred, or reduced, if D can establishes that P:

(1) Knew of and appreciated the nature of the risk;
(2) Appreciated the specific danger that injured him; and
(3) Voluntarily chose to subject himself to that danger

Question 63

What is the firefighter rule?

Answer 63

where P is a professional rescuer, and is injured
due to an inherent risk of that job, P cannot recover in negligence against the person who created the need for rescue
(1) Different from Good Samaritans—we want to encourage Good Samaritans to rescue so the
law allows them to sue for negligence

Question 64

What constitutes an abnormally dangerous activity, for which there is strict liability if the activity causes the harm?

Answer 64

Abnormally dangerous when:

(1) There is a high risk of serious harm to other +
(2) D cannot engage in the activity without risk, and cannot eliminate the risk with care+
(3) It is not a commonly undertaken activity in the community

ii) P can recover absent proof of fault as long as D was involved and the activity caused the harm
iii) Proximate cause = P must be injured by the risk that makes the activity dangerous

Question 65

Contributory negligence is generally not a defense for strict liability, except when:

Answer 65

P knew of the danger that justified imposition of strict liability and his contributory negligent action caused exactly that danger to manifest

-Here, P could be said to have assumed the risk; P will be completely barred from recovery

Question 66

What are the 3 theories under liability may be imposed for a product in an unreasonably dangerous
defective condition?

Answer 66

i) Manufacturing Defect (easiest) = Manufactured in a form other than intended by manufacturer. P must show that Product is in a condition not intended by manufacturer and defect existed when leaving manufacturer’s hands
ii) Design Defect = Made as intended by manufacturer but still presents a danger of personal injury or property damage to P because of a flawed design.

ii) Warning
(1) P is asserting a warning is inadequate –The test here is reasonableness. Does the warning reasonably inform a reader of the risks of the product and how to reduce them? Look at language, placement, size of font, and clarity
(2) P is asserting there is no warning – manufacturer has to warn about risks of which it knows or should know. Consider the gravity and probability of harm
(a) 1% risk of death – should warn
(b) 1% risk of tooth discoloration – probably not

Question 67

What are the 2 tests for design defect theory of product liability?

Answer 67

(1) Ordinary consumer expectation test – Product is more dangerous than would be contemplated by the ordinary consumer who possesses ordinary knowledge common to the community

(2) Risk-utility balancing – Jury determines whether the danger the design threatens (cost in human injury and property damage) outweighs its utility to society. Product will be found defective if an alternative design could have reduced the danger at about the same cost.
- Questions to ponder: How easy would it be to swap out the defective design for the alternatives? How high is the likelihood of harm and how bad would the harm be if it happened? How important/useful is the product?

Question 67

What are the 2 tests for design defect theory of product liability?

Answer 67

(1) Ordinary consumer expectation test – Product is more dangerous than would be contemplated by the ordinary consumer who possesses ordinary knowledge common to the community

(2) Risk-utility balancing – Jury determines whether the danger the design threatens (cost in human injury and property damage) outweighs its utility to society. Product will be found defective if an alternative design could have reduced the danger at about the same cost.
- Questions to ponder: How easy would it be to swap out the defective design for the alternatives? How high is the likelihood of harm and how bad would the harm be if it happened? How important/useful is the product?

Question 68

When are damages recoverable in a product liability suit?

Answer 68

Recoverable when there is personal injury or property damage other than to the product itself

• Where the harm is only to the product itself, can only claim a breach of warranty.
• Consequential/subsequent economic losses are not enough

Example: Car won’t start; lose $5k in deliveries. Not enough for strict product liability unless for example, the car blew up and also damaged the garage

Question 69

What are the defenses to strict product liability?

Answer 69

i) Misuse—P’s use of the product is neither intended nor foreseeable
ii) Alteration—Employer removes safety devices to increase efficiency
iii) Assumption of the risk— Where P has used the product with knowledge of the risk

Question 70

How is Product Liability on Negligence Theory analyzed?

Answer 70

a) Any foreseeable P can bring an action
b) Analyze the conduct of each D and ask whether D acted reasonably (This is different from strict
products liability, which focuses on the product—not the actions of D)
c) Res ipsa loquitur takes the place of manufacturing defect in negligence theory (e.g., toe intobacco)
d) All negligence defenses apply

Question 71

what are the 2 types of warranties under which a product liability on warranty theory claim can be brought?

Answer 71

a) Express Warranty: Where D makes a specific representation as to the quality/nature of the
product which becomes a basis of the bargain
-Any seller can make this warranty (manufacturer, distributor, seller)
-Can occur via advertising, during negotiations, or as a contract provision

b) Implied Warranty / Warranty of Merchantability: Where a merchant deals in goods of a particular
kind, the sale of such goods constitutes an implied warranty that those goods will be merchantable -
i.e., the goods are of average quality for goods of that kind and are generally fit for the purpose of
which such goods are normally used
-Warranty of merchantability = Fit for intended use
(1) Requires privity and notice
(2) Can be disclaimed by contract

c) Where harm is to the product itself, the only claim P can pursue is for warranty

Question 72

What is a public nuisance?

Answer 72

An unreasonable interference with a right common to the general public (e.g., health, safety, and morals of community)
-Typically brought by a governmental actor, such as the Attorney General

Question 73

What is a private nuisance?

Answer 73

A thing, or activity, that substantially and unreasonably interferes with P’s use and enjoyment of P’s land

Question 74

What are the 5 factors for balancing whether a nuisance is a substantial/unreasonable interference? What is the remedy if a nuisance is found to be substantial/unreasonable?

Answer 74

5 factors for balancing substantial/unreasonable interference:

i) Value of D’s activity;
ii) Whether there are alternatives;
iii) Nature of locality;
iv) Extent of P’s injury; and
v) Who was there first? (Used to be a defense, now just a factor)

Remedy = Injunction (equitable relief) – P must persuade a judge that:

i) P is suffering, or will suffer, irreparable harm + damages are an inadequate remedy
ii) Judge will then do balancing test

Question 75

What must P establish in a defamation claim?

Answer 75

P must establish that D published defamatory material concerning P that caused reputational harm

Defamatory Message = Subjects P to scorn, ridicule, or deters others from dealing with P, causing reputational harm (Ex: accusing of heinous crime)
-Must be one that can be believed as truthful and reputation harming (hyperbole and opinions are not defamatory)

Publication = Someone other than P read, saw, or heard the defamation
-P must show that D either intentionally published the information or was negligent in publishing
the information
-Republication Rule – In addition to D, who originates the defamatory message, other persons who repeat the defamatory message are potentially liable as well

Question 76

What are the types of slander and their definitions?

Answer 76

i) Libel = Defamatory message embodied in any relative permanent form (usually written) – Reputational harm
is presumed, but the damages have to be proven

ii) Slander = Defamation in spoken form, rather than written form – To recover, P must prove special damages (specific economic losses that flow from the slander). P can also receive reputation damages

Question 77

What are the categories of slander per se?

Answer 77

(a) Slander which imputes to P behavior or characteristics that are incompatible with the
proper conduct of P’s business, profession, or office;
(b) Slander that imputes to P commission of a crime involving moral turpitude or infamous punishment (prison/death);
(c) Allegations P has some loathsome disease; and
(d) Falsely imputing lack of chastity to a woman

Question 78

What are the common law privileges to defamation?

Answer 78

1) truth - P must prove falsity as part of P’s prima facie case (Exception: P is a private, not public figure, and the matter is a private concern)
2) absolute privilege
3) qualified/conditional privilege

Question 79

What are the contexts for absolute privilege to a defamation claim?

Answer 79

(a) Communications between spouses;
(b) Statements made on the floor of the legislature;
(c) Between high ranking executive officials; and
(d) Made in conduct of judicial proceedings

Privilege ends if someone repeats in a non-privileged situation

Question 80

Under what conditions is D is qualifiedly immune from liability for defamatory messages (among others)? And how may D lose that privilege?

Answer 80

(a) Comments are made in a communication that appears reasonably necessary to protect, or advance, D’s own legitimate interests;
(b) Comments were communicated on a matter of interest to the recipient of the communication, or a third person; and
(c) Comments were communicated concerning a matter of public interest to an individual empowered to protect that interest

Will lose privilege if:

(a) D has bad intent, acts out of malice, or is reckless as to the statement’s truth/falsity
(b) D does not believe the truth of the defamatory communication

Question 81

If defamation is related to capacity as a public official or public figure, what must P prove?

Answer 81

P must prove actual malice by clear and convincing evidence –> D knew it was false or recklessly disregarded the truth or falsity

Question 82

If P in a defamation case is a private figure, what must they show if the subject matter of the defamation is of public concern?

Answer 82

D must be shown to have exhibited some degree of fault higher than strict liability, which presumably means
negligence
(1) To be awarded presumed or punitive damages, actual malice is required

Question 83

If P in a defamation case is a private figure, what must they show if the subject matter of the defamation is of private concern?

Answer 83

P does not have to prove actual malice to get presumed or punitive damages
(NOTE: - not settled; not tested)

Question 84

What is intrusion into seclusion?

Answer 84

D unreasonably intrudes into P’s seclusion (zone of privacy)

i) Intrusion must be highly objectionable to a reasonable person (e.g., wiretapping, stalking)
ii) Damages include compensatory damages (e.g., mental distress) and if bad enough, punitive damages

Question 85

What is Commercial Appropriation of Likeness or Identity?

Answer 85

Unauthorized use of P’s name, voice, or likeness for D’s commercial advantage. Newsworthy purpose of P’s likeness, or identity, is exempt

Question 86

What must a P prove for the tort of Public Disclosure of Private True Facts?

Answer 86

i) P must prove: Disclosure of private facts that is highly offensive to a reasonable person and is not newsworthy
ii) Look for passage of time – 20 years pass, less relevant
iii) Need some sort of publication/dissemination of information
iv) Injunction is possible because the information is true (unlike defamation)
v) If D gets information from public records, D cannot be liable for sharing that information

Question 87

What must P show for Portrayal in False Light?

Answer 87

i) Publication + divulging of false information that is highly offensive to a reasonable person +
some level of fault (parallel to defamation rules – actual malice, etc.)

D publishes matters portraying P in a false light—i.e., attributing to P views P does not hold or attributing actions to P that P did not take.

Question 88

What is Malicious Prosecution?

Answer 88

Criminal proceedings instituted by D for an improper purpose and without probable cause, that terminate favorably for P and cause P damages (P must prevail on the merits)

Question 89

What are the elements of intentional misrepresentation?

Answer 89

(1) Intentional material misrepresentation by D;
(2) Of past or present fact;
(3) Made with knowledge; and
(4) On which P justifiably relies to P’s economic detriment

Mental State (key) - D must intend P (or class of persons which P belongs) to rely (act or fail to act in reliance on D’s misrepresentation)
(1) Scienter present when D knew statement was false or was reckless as to veracity

Question 90

In an intentional misrepresentation claim, misrepresentation can be a false, affirmative assertion of fact (engine is new) or an active concealment (roll back odometer) Failure to disclose is not enough unless:

Answer 90

(1) There is a fiduciary relationship;
(2) There is an ambiguous or misleading statement that causes reliance;
(3) D makes an assertion, believing it is true, but then discovers it was false (or circumstances changed) and fails to disclose;
(4) D makes a false assertion not intending reliance but discovers P relied; or
(5) P reasonably expects there would be disclosure

Question 91

Generally, D has no duty to avoid negligent infliction of pure economic loss. The exceptions (where P can bring a negligent representation claim) are:

Answer 91

1) When there is a special relationship, like a fiduciary duty, or 2) if D knows that they are acting for the benefit of a third party, and the 3rd party relies and suffers economic loss

Ex: Lawyer prepares a contract for Client and drafts it negligently, causing Client to lose $1M. Client sues for malpractice—Lawyer cannot avoid liability because it’s purely an economic loss. There is a fiduciary duty.

Ex: Lawyer drafts will for Client. Non-parties can only recover, if the will was negligently drafted leading to economic loss for the intended beneficiary.

Question 92

P can prevail in a claim for Prospective Economic Advantage only by showing that D:

Answer 92

i) Knew of prospective economic advantage; and
ii) Acted to interfere with it for improper motives
- D can act to protect own competitive interest

Question 93

In an Injurious Falsehood claim, P must prove:

Answer 93

i) False statement;
ii) Actual malice, or D knew statement was false or recklessly disregarded veracity;
iii) Made to another or published;
iv) Causing specific economic injury to P;
NOTE: Not about reputational harm but about economic loss

Question 94

Employee vs. IC status (for the purpose of determining employer liability) depends on:

Answer 94

whether the employer dictates the means, method, and
manner of the work. The more control exercised, the more likely the person is an employee and not an independent contractor

Question 95

Parents are not generally vicariously liable for the torts committed by their child, absent a statute saying otherwise. Parents can be liable for:

Answer 95

their own negligence, negligent supervision, or entrustment

Question 96

What are Wrongful Death Statutes?

Answer 96

All jurisdictions statutorily provide for an action by which either heirs of a deceased victim, or the personal representative of the victim’s estate, may bring an action for wrongful death for their own losses resulting from the victim’s death (e.g., wages the victim might have earned over their lifetime, damages such as the victim’s medical expenses)

Question 96

What are Wrongful Death Statutes?

Answer 96

All jurisdictions statutorily provide for an action by which either heirs of a deceased victim, or the personal representative of the victim’s estate, may bring an action for wrongful death for their own losses resulting from the victim’s death (e.g., wages the victim might have earned over their lifetime, damages such as the victim’s medical expenses)

Question 97

What is loss of Consortium?

Answer 97

Where a spouse is killed, the surviving spouse may bring a claim for intangible injuries of loss, comfort, companionship, etc