Torts

Question 1

Private Necessity

Answer 1

Incomplete privilege, meaning the privilege holder would have to compensate the other party for any actual damage done to the other party’s property.

Question 2

Firefighter’s Rule

Answer 2

Bars claims for injuries that result from risks that are unique or special to the firefighter’s inherently dangerous work. The rule covers firefighters and police.

Question 3

Elements of IIED

Answer 3

To establish IIED, the plaintiff must show:

(i) an act by the defendant amounting to extreme or outrageous conduct;
(ii) an intent (purpose or knowledge to a substantial certainty) by the defendant to cause the plaintiff to suffer severe ED, or reckless by D as to the effect of their conduct;
(iii) causation; and
(iv) damages in the form of severe emotional distress

Question 4

Trespass to chattels

Answer 4

Intentional (ie volitional) interference with plaintiff’s possession of personal property that warrants D pay damages

Question 5

Conversion

Answer 5

Intentional (ie volitional) interference with plaintiff’s personal property so serious that warrants D pay property’s full value.

The intent involved refers to the physical act that results in the conversion, not to the defendant’s desires regarding the ultimate disposition of the property.

Question 6

In many jurisdictions, this is the law regarding home intruders.

Answer 6

Presumption that it is reasonable to believe that someone who enters/intrudes into your home/dwelling poses a reasonable threat of deadly harm to the occupants of the home. You can presume that they are armed & dangerous unless some visible overriding circumstances shows otherwise.

Question 7

unknown trespasser

Answer 7

no duty

Question 8

known trespassers - land possessor owes duty to warn of or make safe conditions that are

Answer 8

artificial, highly dangerous, concealed, prior knowledge by D

(known, man-made death traps)

Question 9

licensee

Answer 9

enters land with permission but without financial benefit to possessor (e.g. social guests)

Question 10

licensees - land possessor owes duty to warn of or make safe conditions that are

Answer 10

concealed from licensee and known by possessor

all known traps

Question 11

invitee

Answer 11

enter land with permission (express or implied) for financial benefit of possessor or when land is open to public at large

will lose invitee status if they exceed the scope of the invitation

Question 12

invitee - land possessor owes duty to warn of or make safe conditions that are

Answer 12

concealed from invitee and known by possessor OR that could have been discovered through reasonable inspection

(all reasonably known traps)

Question 13

professional standard of care

Answer 13

same care as average member of profession providing similar professional services

must conform to colleagues; custom of profession set standard

(do NOT write “reasoanable doctor” on exam; not compared to imaginary/hypothetical reasonable person)

Question 14

standard of care for children

Answer 14

child of like age, intelligence, and experience

subjective test

child under 5 is usually without capacity to be negligent

Children engaged in potentially dangerous adult
activities: “adult” standard of care.

Question 15

Firefighters & police officers

Answer 15

have their own category. They are owed no duty for risks inherent to their job.

Question 16

Trespassing Children (Attractive Nuisance Doctrine)

Answer 16

Land possessor owes them a duty of reasonably prudent care under the circumstances to protect them from artificial hazards.

Question 17

Negligence per se

Answer 17

A statute providing for criminal penalties may establish a specific duty that will replace the more general duty of care (reasonable person standard) in negligence cases. In most jurisdictions, an unexcused violation of statutory standard of care is negligence per se, which means that it establishes the first two prima facie elements of negligence (duty and breach of duty).

To apply the statute, P must show that D violated the statute and also that P is within protected class AND the harm that P suffered is within the type of harm/risk that the statute was designed to prevent. [use intermediate level of generality]

[P cannot use the statute if compliance would have been more dangerous OR if compliance would have been impossible (e.g. MI and drove thru red light).]

Question 18

Affirmative Duties to Act

Answer 18

Generally, no duty to act affirmatively. No duty to rescue.

But if you choose to act, must do so as a reasonably prudent person under the circumstances.

Question 19

Exceptions were there is a duty to act

Answer 19

• pre-existing relationship between parties (innkeeper/guest; common carrier/passenger; employer/employee; b/w family members; business owner/customer)
• defendant caused peril (even if caused innocently; must act rznbly under circumstances, but no duty to actually rescue)

Question 20

Near Miss Case

Answer 20

D creates a foreseeable risk of physical injury to P.

P must show:

• negligence
• D’s negligence put P in zone of physical danger (i.e. that it was a near miss)
• P suffers physical symptoms of distress (e.g. suffering MI after fear of being hit by car)

Question 21

Bystander Case

Answer 21

Defendant negligently injures third party causing plaintiff emotional distress.

P must show:

• negligence
• P and 3d party are closely related (spouse, parent, minor child)
• P present at scene and observed/perceived event

Question 22

Business Relationship Cases

Answer 22

Plaintiff can recover if highly foreseeable that careless performance by D will produce emotional distress.

(pt/medical lab; customer/funeral parlor; but does NOT include customer/dry cleaner)

Question 23

Establishing RIL means

Answer 23

an inference of negligence. P will survive any of D’s motions for directed verdict; case must go to the jury. RIL does NOT mean P will always win.

Question 24

Res Ipsa Loquitur

Answer 24

Used by P without info about D’s breach (who cannot point to particular fault). Substitute for direct evidence of breach of duty.

P must show:

• accident is normally associated with negligence (does not normally occur unless someone was negligent); and
• accident would normally be due to negligence of someone in D’s position (probably attributable to D; estb’d by showing D had exclusive control).

[If RIL is at issue, the facts will not tell you how the injury occurred. D cannot prevail on a motion for directed verdict if P establishes RIL. But P must still prove causation and damages if P estb’s RIL.]

Question 25

Merged Causes

Answer 25

2 defendants acting independently each commit a breach combining into single indivisible harm.
(If 2 defendants + 2 breaches + merged causation, use substantial factor test.)

Substantial Factor Test: Defendant liable if breach contributed in significant/substantial way to ultimate injury.

If breach would have been able to cause entire harm if it had been the only breach, it is a substantial factor.

Defendants held jointly & severally liable; P can recover full amount of damages from either D.

Question 26

Unascertainable Cause

Answer 26

2 acts, only 1 of which causes injury, but unknown which one (Summers v. Tice). Unascertainable cause shifts burden of proof to defendants (each D must show that his negligence is not the actual cause).

Question 27

Eggshell Skull Doctrine

Answer 27

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

(Once P has estb’d all other elements of claim, P receives ALL damages suffered, even if surprisingly great in scope/unforeseeable.)

Question 28

Comparative Negligence and Contributory Negligence

Answer 28

Same reasonable person standard for P. Under common law contributory negligence rules, a party could not recover if he was found to be negligence in any way. But under modern pure comparative negligence rules, the jury will assign % of fault to the parties. If jury finds that P acted negligently, P’s total damages award will only be reduced based on P’s percentage of fault (but will not bar recovery).

Some jurisdictions apply a partial comparative negligence approach that bars recovery for plaintiffs who are 50% or more at fault. Such jurisdictions typically use a combined comparison approach when multiple Ds have contributed to the P’s injury - P’s negligence will be compared with the total negligence of all Ds combined. [If a single D’s fault is less than P’s, this would not bar P’s recovery unless P’s fault was more than the combined faults of all Ds.]

Question 29

Elements of SL

Answer 29

1) Product was defective when it left the hands of D (manufacturing defect, design defect, or failure to warn);
2) Product was not altered when it reached P;
3) Caused an injury to P when it was being used in an intended or unintended foreseeable use; AND
4) D is a commercial supplier/merchant who routinely deals in goods of this type (casual sellers, service providers are NOT merchants; but commercial lessors, everyone in distribution chain IS merchant).1)

Question 30

Manufacturing Defect

Answer 30

When the product:

1) differs from the intended design (defect in manufacturing/production); AND
2) is more dangerous than if made properly.

Question 31

Design Defect

Answer 31

Exists if the product can be made or manufactured safer, more practical, and at a similar cost (i.e. there was a feasible alternative).

Trier of fact MUST balance the alternative designs available (incl. cost & utility) vs. the risk to consumers. No SL if the danger is apparent and there is no safer way to make the product.

Question 32

Failure to Warn

Answer 32

Requires that:

1) P was not warned of the risks of the product;
2) which are not obvious to an ordinary user, but known to the designer/manufacturer.
* The warning MUST be proportionate to the risk (must be prominent & comprehensible).

Question 33

Damages available for Strict Liability

Answer 33

Recovery for personal injury and property damage is allowed.

Recovery for solely economic loss is NOT allowed.

Question 34

Respondeat Superior Doctrine

Answer 34

“An employer is vicariously liable for an employee’s tortious acts if the employee was
acting within the scope of the employment.”

(Employee acts within Scope of Employment when:

a) Performing work assigned by the employer; OR
b) Engaging in a course of conduct subject to the employer’s control.)

(If occupation involves authorization to use physical force, misuse of that force is within scope of employment.)

(Conduct is NOT within the scope if it’s unrelated and not intended to serve any purpose of the employer.)

Question 35

Time, Place, & Purpose Test of Respondent Superior

Answer 35

To determine the scope of employment, courts analyze whether the conduct:

i) Is of the kind the employee is employed to perform;
ii) Occurs substantially within the authorized time and space limits; and
iii) Is motivated (in whole or part) to serve the employer.

Minor departure = detour = employer liable
Major departure = frolic = employer not liable

Question 36

Intentional Torts – are generally outside the scope of employment.
EXCEPTIONS:

Answer 36

a) Act was specifically authorized by employer;
b) Act was driven by a desire to serve employer; OR
c) Act was the result of naturally occurring friction from the type of employment.

Question 37

Liability if Respondeat Superior Doctrine is Inapplicable

A principal / employer will be liable for an agent’s acts outside the respondeat superior doctrine if:

Answer 37

a) Principal intended the conduct / consequences;
b) Principal was negligent or reckless in selecting, training, supervising, or controlling the agent;
c) It is a non-delegable duty; OR
d) Agent had apparent authority, the agent’s actions taken with apparent authority constitute the tort (or enable it to be concealed), and the third-party reasonably relied on such authority.

Question 38

Employee vs. Independent Contractor

Answer 38

Primary focus is whether the principal had the right to control the manner and method in which the job was performed.

Factors to determine if a person is an employee or independent contractor:
1) type of work;
2) pay (hourly vs. per project);
3) who supplied the equipment/tools;
4) degree of supervision;
5) degree of skill required;
6) if the work benefits the employer’s business;
7) extent of principal’s control over work details;
8) whether agent/contractor is engaged in a distinct
business;
9) length of time employed/engaged;
10) characterization & belief of relationship; and
11) whether agent was hired for a business purpose.

Question 39

Liability for Independent Contractors

Answer 39

Generally, an employer/principal has NO liability for an Independent
Contractor’s torts.

Exceptions:

1) Inherently Dangerous Activities.
2) Non-delegable duty owed by principal.
3) Estoppel – the principal holds out the contractor as his agent, third-party reasonably relied on contractor’s skill, and the third-party suffered harm.
4) Business owner has independent contractor working on business premises and the IC hurts a customer.

Question 40

Joint and Several Liability

Answer 40

If multiple Ds are the proximate cause of a single indivisible harm, then P may recover the ENTIRE amount of damages from any defendant.

BUT, any D who pays more than his share of the damages may bring action against the other Ds for contribution.

Question 41

Doctrine of Alternative Liability

Answer 41

Allows a jury to find ALL Ds liable if:

1) multiple Ds are negligent,
2) but it’s unclear which one caused P’s injuries.

Question 42

Defamation

Answer 42

Elements required to prove a prima facie case:

1) a false defamatory statement (a statement that tends to harm the reputation of another);
2) of and concerning the P made by D (must ID P);
3) publication by D to (at least 1) third-party (does not have to be intentionally shared);
4) some degree of fault by the D (D did not have a rznbl/good faith belief of truth); and
5) damages

P is Public Official or Public Figure → P must prove actual malice (recklessness or knowledge of falsity) as D’s degree of fault.
− Public Figure = injected into a public controversy or achieved widespread notoriety.

P is Private Figure Speaking about a Matter of Public Concern → P must prove negligence as D’s degree of fault.

Question 43

Libel

Answer 43

Defamation in a permanent format (e.g. written or recorded). Damages are generally presumed, unless the defamatory nature is not clear on its face and it does not fall within one of the 4 slander per se categories.

Question 44

Slander

Answer 44

An oral defamatory statement. Need to prove economic harm (special damages) unless slander per se.

Slander per se: words that are so clearly defamatory that ordinary person would understand injury. Damages presumed.

(a) business/profession;
(b) serious crime;
(c) serious sexual misconduct;
(d) loathsome disease

Question 45

Affirmative Defenses to Defamation

Answer 45

Consent and privilege.

Absolute Privilege → a complete defense
− Applies to statements made: between spouses, in judicial proceedings, by executive branch officials, and during legislative proceedings.

Qualified Privilege → applies when (1) there is a public interest in encouraging candor (case-by-case basis), AND (2) statement was made in good faith and relevant in scope (did not act with malice).
− Applies to statements: by former/prospective employers (made in good faith for a legitimate purpose), in gov’t reports of official proceedings,
during testimony in legislative proceedings, in self-defense, and to warn others about danger/harm.

Question 46

False Light

Answer 46

Occurs when D

(1) causes widespread dissemination,
(2) of P’s beliefs, thoughts, or actions,
(3) in a false light,
(4) that would be highly objectionable to a reasonable person.

− If a public figure or matter of public concern → MUST show actual malice (knowledge of falsity or reckless disregard).

• Partial overlap with defamation, but FL allows recovery of emotional damages, while defamation allows recovery for economic damages.
• The qualified/absolute immunity privileges are available for FL & disclosure claims.

Question 47

Battery elements & essay intro

Answer 47

The prima facie case for battery requires that the plaintiff show:

(i) an act by the defendant that brings about harmful or offensive contact to the plaintiff’s person;
(ii) intent on the part of the defendant to bring about such harmful or offensive contact; and
(iii) causation.

The intent may be satisfied either when the defendant’s purpose in acting is to bring about the consequence of his conduct or when the defendant knows with substantial certainty that the consequence will result.

Question 48

Intent as an element.

Answer 48

The intent may be satisfied either when the defendant’s purpose in acting is to bring about the consequence of his conduct or when the defendant knows with substantial certainty that the consequence will result.

Question 49

Negligence elements and essay intro w/ overview rules

Answer 49

The prima facie case for negligence requires that the plaintiff prove that:

(i) the defendant owed the plaintiff a duty of care;
(ii) the defendant breached that duty;
(iii) the breach was the actual and proximate cause of the plaintiff’s injury; and
(iv) the plaintiff suffered damages ( to person or property).

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. The plaintiff must be within the foreseeable zone of danger (a foreseeable plaintiff).
A person breaches their duty when they fall below the applicable standard of care.
The general rule for actual causation is the but for test - but for the D’s negligent conduct (act or omission), the harm/injury to P would not have occurred. [insert alternative test if necessary] Proximate cause is a foreseeability test that asks whether the outcome was a foreseeable risk associated with the breach?
P must prove actual damages.

Question 50

As the owner of the property, the owner (X) has a duty to….

Answer 50

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 51

Under the reasonable person standard of care, evidence of custom, usage, or industry standards…

Answer 51

while relevant, is not dispositive on the question of whether certain conduct constitutes negligence.

Question 52

The breach of duty actually caused P’s injuries because…

Answer 52

the injuries would not have occurred but for the _____ [D’s breach]..

Question 53

Proximate cause is present because….

Answer 53

the harmful result that occurred was within the range of foreseeable consequences that could result from the failure to ______ [D’s breach].

Question 54

If the treating physician were negligent, such negligence would be considered

Answer 54

a foreseeable intervening cause that does not cut off the D’s liability.

Question 55

For all of the intentional torts to the person except for IIED,

Answer 55

the P must prove intent and that the harm she suffered was bc of D’s intentional conduct. For IIED, recklessness will suffice, but must show actual damages of severe emotional distress (but physical manifestation not req’d). Nominal damages OK for all other intentional torts to the person.

Question 56

Transferred intent applies to these torts

Answer 56

battery; assault; false imprisonment; trespass to land; trespass to chattel

Question 57

Granting motions for directed verdicts

Answer 57

Depends on whether there is a triable issue of fact for the jury. If yes, deny motion.

Only where there is no evidence that the D did anything unreasonable is when you would want to grant the D’s motion for directed verdict and rob jury of making decision (usually denied 80% of time).

Only where there is no evidence that the D may have acted reasonably is when you would want to grant the P’s motion for directed verdict (almost always denied).

Question 58

Breach - call of Q will ask…

Answer 58

how should the court rule on the motion? Will ask about surviving a motion to dismiss/directed verdict, etc. Know this is testing the breach element.

Question 59

Defenses to Strict Liability

Answer 59

• Assumption of Risk (complete defense unless jurisdiction applies comparative fault rules to SL)
• Unforeseeable product misuse (foreseeable misuse is NOT a defense)
• Adequate warnings (but may not be enough to get D completely off hook; irrelevant for defective design)

In comparative negligence jurisdictions (majority), P’s negligence just reduces P’s amount of damages in recovery by amount of P’s fault.
In contributory negligence jurisdictions (minority), the P’s contributory negligence is only a defense if the P knew and acted unreasonably in response to that knowledge.

Question 60

Vicarious liability

Answer 60

Via respondent superior (employer/employee) or servers of alcohol (if Dram Shop Act in place).

NO vicarious liability for parent/child r’ships or owners of automobiles. But if driver is doing something that benefits owner, respondent superior may be basis for vicarious liability.

[consider (direct) employer liability for negligent hiring or supervision before reaching matter of vicarious liability]

Question 61

With intentional torts, intent means

Answer 61

that the D intended the consequences of his act.

3 elements: act, intent, & causation. The only intentional torts that require damages are IIED, trespass to chattel, and conversion.

Question 62

A directed verdict is

Answer 62

a ruling entered by a trial judge after determining that there is no legally sufficient evidentiary basis for a reasonable jury to reach a conclusion to the contrary. (e.g. one of the parties has not proven their case as a matter of law)

To avoid/survive a directed verdict in a tort action, P has to show that D owed a duty and that D breached that duty.

Question 63

Proximate Cause - Indirect Cause Cases

Answer 63

In indirect cause cases, an intervening force combines with the D’s conduct to cause the P’s injury. PC exists in indirect causes cases only if the D’s negligence caused a foreseeable harm or reaction from an intervening force.

Intervening events that produce a harm outside of the scope of what one would normally anticipate from the D’s negligence are generally deemed unforeseeable and superseding. Such a superseding event breaks the chain of causation and relieves the D of liability.

Question 64

Under the economic loss doctrine, a plaintiff cannot recover under a theory of strict product liability if`

Answer 64

the plaintiff suffers purely economic loss (as opposed to personal injury or property damage).
Purely economic loss: lost revenue/profits

Also, there is no recovery on a strict products liability theory if a defect in a product causes damage only to the product itself, as opposed to personal injury or injury to other property. In that case, the owner of the damaged product is limited to K remedies for damage to the product.

Question 65

A motion for relief from judgment based on mistake, inadvertence, surprise, or excusable neglect, must be made within

Answer 65

a reasonable time and not more than 1 yr from entry of judgment.