Torts

Question 1

Battery consists of (3) elements:

Answer 1

Battery consists of (1) an act by the D that brings about harmful or offensive contact to the P’s person (2) intent on the part of the D to bring about such harmful or offensive contact and (3) causation.

Question 2

Intent may be:

Answer 2

Intent may be specific (D’s purpose in acting was to bring about this contact) or general (D knows with substantial certainty that the consequences will result).

Question 3

Negligence requires (4) elements

Answer 3

Negligence requires the P to show (1) a duty on the part of the D to conform to a specific standard of conduct for the protection of the P against an unreasonable risk of injury (2) breach of that duty by the D (3) that the breach was the actual and proximate cause of the P’s injury and (4) damage to the P’s person or property.

Question 4

When is there a duty?

Answer 4

Whenever a person engages in an activity, he is under a legal duty to act as a reasonably prudent person engaged in the same or similar activity. If a D’s conduct creates an unreasonable risk of injury to persons in the position of the P, then general duty of care extends from D to P.

Question 5

Respondeat superior

Answer 5

Under the doctrine of respondeat superior, an employer is vicariously liable for tortious acts committed by his employee within the scope of the employment relationship.

Question 6

Property owners have a duty to

Answer 6

For property owners they have a duty to exercise reasonable care with respect to activities on the land to avoid unreasonable risk of harm to others outside the property.

To be owed a duty, those outside the property must be within the foreseeable “zone of danger” from the defendant’s activity.

Question 7

Evidence of custom, usage, or industry standards:

Answer 7

Evidence of custom, usage, or industry standards, while relevant, is not dispositive on the question of whether certain conduct constitutes negligence.

Question 8

Proximate cause is present when

Answer 8

the harmful result that occurred was within the range of foreseeable consequences that could result from the failure to do xyz.

Question 9

A tortfeasor takes his victim as he finds her

Answer 9

A tortfeasor takes his victim as he finds her i.e. The fact that the extent or severity of harm was not foreseeable does not relieve D’s liability.

Question 10

What is a dramshop act?

Answer 10

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.

Question 11

Does health insurance influence damages?

Answer 11

As a general rule, damages are not reduced or mitigated by reason of benefits received by the plaintiff from other sources, such as health insurance.

Question 12

What are the elements for a prima facie case of negligence?

Answer 12

The prima facie case for negligence requires the plaintiff to show: (1) a duty on the part of the D to conform to a specific standard of conduct for the protection of the P against an unreasonable risk of injury (2) breach of that duty by the D (3) that the breach was the actual and proximate cause of the P’s injury; and (4) damage to the P’s person or property.

Question 13

Does one have a duty to come to the aid of another?

Answer 13

As a general rule, no duty is imposed on a person to come to the aid of another absent a special relationship between the parties.

However, if the person gratuitously comes to the aid of the other, the actor must exercise due care in providing the assistance, and must not leave the person in a worse position than he found her.

Question 14

What is the egg-shell plaintiff rule?

Answer 14

• A tort-feasor takes its victim as it finds her.
• Under this rule, also known as the “egg-shell plaintiff” rule, the fact that the extent or severity of the P’s harm was not foreseeable does not relieve the D of liability.
• If the D’s negligence causes an aggravation of the P’s existing physical or mental illness, the D is liable for the damages caused by the aggravation.

Question 15

Do you have a duty to prevent a third-party from injuring another person?

Answer 15

• Generally, there is no duty to prevent a third party from injuring another.
• However, such a duty will be imposed when the D had a special relationship with the third person that gave the D the actual ability and authority to act, and the D knew or should have known that the third person was likely to injure the other person.

Question 16

What is respondeat superior?

Answer 16

Under the doctrine of respondeat superior, an employer can be held liable for an employee’s torts if the tort was committed within the scope of the employment.

Question 17

When is an act considered to be within the scope of employment for respondeat superior?

Answer 17

An act will be considered to be within the scope of the employment if it was expressly authorized by the employer, or of the same general nature as the employee’s job and motivated by a desire to serve the employer.

Question 18

What types of a causation does P have to prove that D did?

Answer 18

A person cannot be held liable in negligence unless the P can prove that the person was both the actual and proximate cause of the injury.

Question 19

What is an act for causation purposes?

Answer 19

An act is an actual cause of the injury if the injury would not have occurred but for the act.

Question 20

What is proximate cause? (and how is it determined)

Answer 20

Proximate causation is a limitation on liability.

The general rule of proximate cause is that a D is liable only for harmful results that are normal incidents of and within the increased risks caused by the D. Liability generally is determined by the foreseeability test.

Question 21

What is the general rule of proximate cause?

Answer 21

The general rule of proximate cause is that the D is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts.

Question 22

Does unusual timing of cause and effect affect D’s liability?

Answer 22

No, if a particular harmful result was at all foreseeable from the defendant’s negligent conduct, the unusual manner in which the injury occurred or the unusual timing of cause and effect is irrelevant to the D’s liability.

Question 23

Is a rescuer foreseeable?

Answer 23

The well-settled rule is that a rescuer is a foreseeable P as long as the rescue is not reckless.

Question 24

Is a principal vicariously liable for the tortious acts of its’ agent when the agent is an independent contractor?

Answer 24

In general, a principal will not be vicariously liable for the tortious act of its agent if the latter is an independent contractor.

• One broad exception, though is when the contractor is engaged in inherently dangerous activities, such as excavating next to a public sidewalk.
• Such an activity does not have to be classified as abnormally dangerous for which strict liability applies; it need only be an activity in which there are special damages to others inherent in or normal to the activity.

Question 25

When is an activity abnormally dangerous?

Answer 25

An activity may be characterized as abnormally dangerous if it involves a substantial risk of serious harm to a person or property even when reasonable care is exercised.

Question 26

How do courts determine when an act is abnormally dangerous?

Answer 26

Whether an activity is abnormally dangerous is a question of law that the court can decide on a motion for a directed verdict.

The courts generally impose 2 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; and
(2) the activity is not a matter of common usage in the community.

Question 27

A statute may establish the standard of care in a negligence case if:

Answer 27

A statute may establish the standard of care in a negligence case if the (1) the P is in the class intended to be protected by the statute and (2) the statute was designed to prevent the type of harm that the P suffered.

Question 28

Compliance with a statute does not establish conclusive presumption of

Answer 28

Compliance with a statute does not establish conclusive presumption of due care.

If there are unusual circumstances or increased danger beyond the minimum that the statute was designed to meet, it may be found that there is negligence in not doing more.