Torts

Question 1

what are the three requirements to establish a prima facie case for intentional torts

Answer 1

Voluntary Act. The defendant’s actions must be voluntary (e.g., not a reflex).

Intent - general or specific

Causation. Causation is satisfied if the defendant’s conduct was a substantial factor in bringing about the harm.

Question 2

define specific intent

Answer 2

An actor has specific intent when the actor acts with the purpose of causing the consequence.

Question 3

define general intent

Answer 3

An actor has general intent when the actor knows that the consequence is substantially certain to occur.

Question 4

describe transferred intent doctrine

Answer 4

The transferred intent doctrine allows the defendant to be held liable when the defendant intends to commit an intentional tort against one person but instead commits:

A different intentional tort against the same person;

The same intentional tort against a different person;

OR A different intentional tort against a different person.

Question 5

the transferred intent doctrine applies to which intentional torts

Answer 5

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

Question 6

what are the elements of battery

Answer 6

Causes or is a substantial factor in bringing about;
Harmful or offensive contact;
To the plaintiff’s person or anything connected to them; AND
Has specific or general intent

Question 7

what is harmful contact

Answer 7

Contact is harmful when it causes injury, pain, or illness.

Question 8

what is offensive contact

Answer 8

Contact is offensive when a person of ordinary sensibility would find the contact offensive (e.g., spitting on someone).

Question 9

elements of assault

Answer 9

Causes or is a substantial factor in bringing about;
Reasonable apprehension in the plaintiff;
Of imminent harmful or offensive bodily contact to the plaintiff’s person; AND
Has specific or general intent

Question 10

plaintiff MUST be _______ of the defendant’s actions in order to have reasonable apprehension

Answer 10

aware

e.g., a plaintiff cannot have reasonable apprehension of harmful or offensive contact if she is unconscious

Question 11

do mere words constitute assault

Answer 11

NO

Question 12

what is imminent harm

Answer 12

The plaintiff must be apprehensive that she is about to become the victim of an immediate battery. There cannot be a significant delay (e.g., threats of future harm are not sufficient).

Question 13

elements of false imprisonment

Answer 13

Causes or is a substantial factor in bringing about;
The confinement of the plaintiff within fixed boundaries; AND
Has specific or general intent

Question 14

how may a defendant cause confinement under false imprisonment elements

Answer 14

The defendant may cause confinement of the plaintiff through the use of physical barriers, force, threats, invalid use of authority, duress, or failure to provide a safe means of escape.

Confinement within fixed boundaries exists when the plaintiff’s movement is limited in all directions, such that there is no reasonable means of escape known to the plaintiff.

The plaintiff MUST be aware of the confinement or be harmed by it.

Question 15

what is an exception to false imprisonment

Answer 15

shopkeeper’s privilege - A shopkeeper can detain a suspected shoplifter so long as the detainment is reasonable in both time and manner.

Question 16

Elements of Intentional infliction of emotional distress

Answer 16

Acts with extreme or outrageous conduct;

Which causes or is a substantial factor in bringing about;
Severe emotional distress; AND

Has intent to cause severe emotional distress OR acts with recklessness as to the risk of causing severe emotional distress.

Question 17

what is extreme or outrageous conduct for the purposes of IIED

Answer 17

Conduct is considered extreme or outrageous if a reasonable person would regard the conduct as intolerable in a civilized society.

Question 18

elements for trespass to land

Answer 18

Causes or is a substantial factor in bringing about;
A physical invasion of the plaintiff’s real property (by person or by object like throwing a rock);
AND
Has specific or general intent (need only intend to enter the land or cause the physical Invasion)

Question 19

________ is not a defense to trespass

Answer 19

mistake of fact - believing the land belongs to defendant instead of plaintiff

Question 20

elements for trespass to chattels

Answer 20

Causes or is a substantial factor in bringing about;
An interference with the plaintiff’s right of possession in a chattel; AND
Has specific or general intent

Question 21

What are two ways a defendant can interfere with plaintiff’s right of possession in a chattel?

Answer 21

Intermeddling occurs when the defendant directly damages the chattel.

Dispossession occurs when the defendant deprives the plaintiff of his lawful right of possession of the chattel.

Question 22

Conversion elements

Answer 22

Causes or is a substantial factor in bringing about;

An interference with the plaintiff’s right of possession in a chattel;

Where the interference is so serious, it deprives the plaintiff entirely of the use of the chattel; AND

Has specific or general intent

Question 23

defenses to intentional torts

Answer 23

consent
self defense and defense of others
necessity

Question 24

elements of consent as a defense to intentional torts

Answer 24

can be express or implied
must be valid
and D must remain within the boundaries of plaintiff’s consent (cant use a knife in a boxing match)

Question 25

Self-Defense and Defense of Others elements

Answer 25

The defendant reasonably believed that that the plaintiff was going to harm
him or another (reasonable mistake allowed)

AND

The defendant used only the amount of force that was reasonably necessary
and proportionate to protect himself or another.

Question 26

Necessity definition

Answer 26

available to a defendant that enters onto the plaintiff’s land or interferes with the plaintiff’s personal property, provided that the defendant does so to prevent an injury or some other severe harm

Question 27

defendant may not use self defense/defense of others defense if

Answer 27

he was the initial aggressor (unless the other party responded to nondeadly force with deadly force.)

harm to property is the threat - deadly force cannot be used

Question 28

what are the two types of necessity

Answer 28

public and private necessity

Question 29

define private necessity

Answer 29

defendant’s act is done to benefit a limited number of people
the defendant MUST pay for the actual damages that he caused
the landowner may NOT use force to exclude the defendant (as opposed to when a landowner may usually use reasonable force to exclude a trespasser)

Question 30

define private necessity

Answer 30

defendant’s act is done for the public good

NOT liable for property damage that he caused.

Question 31

Elements of negligence

Answer 31

defendant owed a duty to the plaintiff to conform to a specific standard of care;
breach of that duty
actual and proximate cause
actual damages or loss

Question 32

to whom is a duty owed

Answer 32

A duty of care is owed to all foreseeable plaintiffs that may be harmed by the defendant’s breach of the applicable standard of care

Question 33

what is the majority view for duty

Answer 33

the defendant is only liable to plaintiffs within the foreseeable zone of danger.

Question 34

what is the minority view for duty

Answer 34

the defendant owes a duty to everyone harmed

Question 35

Is there an affirmative duty to act?

Answer 35

NO affirmative duty to act affirmatively or help others

Question 36

list circumstances where an affirmative duty to act may arise

Answer 36

D places the plaintiff in danger;
Has a special relationship with the plaintiff (e.g., common carrier/passenger, innkeeper/guest, family members, etc.);
Has a duty to act affirmatively imposed by law; OR
Begins to administer aid or attempt to rescue the plaintiff (beginning rescue, must exercise reasonable care)

Question 37

what is the reasonable person standard of care?

Answer 37

standard of care owed by the defendant to the plaintiff is that of a reasonably prudent person under the circumstances as measured by an objective standard

The defendant is presumed to have average mental abilities and knowledge.

Particular physical disabilities may be taken into account (eg blindness)

Question 38

how does intoxication impact the reasonable standard of care

Answer 38

Intoxicated people are held to the same standard as sober people UNLESS the intoxication was involuntary.

Question 39

what role do community customs place in determining the reasonable standard of care

Answer 39

Community customs may be relevant in determining reasonableness, but they are NOT dispositive.

Question 40

List all the special standards of care

Answer 40

children, professionals, physicians, psychotherapists, landowners or possessors, and negligence per se

Question 41

what is the standard of care for children?

Answer 41

no liability if under 5 otherwise

held to the standard of care of a reasonably prudent child of similar age, experience, and intelligence under the circumstances (more subjective).

However, if the child is engaged in adult activity (e.g., operating a crane), the court will NOT take the child’s age into account (i.e., the child will be held to an “adult” standard).

Question 42

what is the standard of care for professionals

Answer 42

A professional (e.g., nurses, lawyers, accountants, engineers, architects, etc.) is expected to exhibit the knowledge and skill of a member of the profession in good standing in similar communities.

Question 43

what is the standard of care for a physician

Answer 43

Physicians are held to a national standard of care and have a duty to disclose the risks of treatment to enable a patient to give informed consent.

Only breached if an undisclosed risk was so serious that a reasonable person in the patient’s position would not have consented upon learning of the risk.

Question 44

what is the standard of care for a psychotherapists

Answer 44

In the majority of states, psychotherapists have a duty to warn potential victims of a patient’s serious threats of harm if the patient has the apparent intent and ability to carry out such threats and the potential victim is readily identifiable.

Question 45

what is the standard of care that applies to landowners

Answer 45

it depends on the type of entrant: trespassers, licensees, invitees

Question 46

what is the standard of care owed to a treapasser

Answer 46

A trespasser is a person who enters the landowner’s property without valid consent or necessity.

Discovered/anticipated trespasser - owes a duty to discovered/anticipated trespassers to warn of (or make safe) hidden dangers on the land that pose a risk of death or serious bodily harm (only applies to artificial conditions that the landowner is aware of).

undiscovered - no duty

Question 47

what is the standard of care owed to licensees

Answer 47

a person who lawfully enters the landowner’s
property for her own purpose or benefit, rather than for the landowner’s benefit (e.g., social guests).

NO duty to inspect his property for licensees

DOES owe a duty to licensees to warn of (or make safe) hidden dangers on the land that pose an unreasonable risk of harm (applies to both artificial and natural conditions that the landowner is aware of

Question 48

what is the standard of care owed to invitees

Answer 48

invitee is a person who is invited on the property for the owner’s own benefit or mutual benefit with the invitee (e.g., a customer shopping in a store that is open to the public)

landowner owes a duty to the invitee to reasonably inspect the land for hidden dangers (artificial or natural) that pose an unreasonable risk of harm, and if discovered, make them safe (e.g., installing a warning sign, fixing the hidden danger, etc.).

Question 49

minority approach for landowners’ duty

Answer 49

rejected the traditional approach distinctions between licensees and invitees simply applying a reasonable person standard to landowners

Question 50

describe the attractive nuisance doctrine

Answer 50

A landowner owes a duty to child trespassers to warn of (or make safe) artificial conditions on the land, provided that:
artificial condition exists in a place where the landowner knows or has reason to know that children are likely to trespass;
landowner knows or has reason to know that the artificial condition poses an unreasonable risk of death or serious bodily harm
children, due to their age, do NOT appreciate the danger involved AND
risk of harm outweighs the expense of making the condition safe

Question 51

describe negligence per se

Answer 51

When a statute imposes upon any person a specific duty for the benefit or protection of others, a violation of the statute will constitute negligence per se if the plaintiff:

Is in the class of people meant to be protected by the statute; AND
Suffers the type of harm the statute was designed to protect against.

Question 52

defendant will only be liable under negligence per se if his violation of the statute
was the ___________ of the plaintiff’s injury

Answer 52

proximate cause

Question 53

What is res ipsa loquitur

Answer 53

applied when an element of negligence is difficult to prove, but the circumstances make it obvious that the defendant’s negligence was the most likely cause of the harm

“the thing speaks for itself”

Question 54

what must the plaintiff show for res ipsa to apply?

Answer 54

plaintiff must show that the accident resulting in the harm was:

Of a kind that ordinarily does not occur in the absence of negligence; AND

Caused by an agent or instrumentality within the defendant’s exclusive control.

SOME jurisdictions also require that the injury was not due to any action on the part of the plaintiff

Question 55

to prove negligence the plaintiff must show that the defendant’s conduct was BOTH the ______ and _________ of the plaintiff’s injury

Answer 55

actual; proximate cause

Question 56

define actual cause

Answer 56

To prove actual cause, the plaintiff must show that her injury would not have occurred BUT FOR the defendant’s breach.

Question 57

define proximate cause

Answer 57

the plaintiff must show that her injury was a foreseeable result of the defendant’s conduct

Question 58

define intervening cause

Answer 58

An intervening cause is an outside force or action that contributes to the plaintiff’s harm after the defendant’s breach has occurred.

If the intervening cause is unforeseeable, it is a superseding cause and the defendant’s liability to the plaintiff will be cut off from that point forward.

Question 59

further negligent acts for the purposes of proximate causation are considered _______

Answer 59

foreseeable

(e.g., medical malpractice)

Courts have long held that injuries sustained when running from danger are foreseeable and that injuries sustained to the rescuer during a rescue attempt are foreseeable

Question 60

Criminal acts, intentional torts, and nature-induced “acts of god” are considered ________ for the purposes of proximate cause

Answer 60

unforeseeable

Question 61

what is the fireman’s rule

Answer 61

the fireman’s rule generally bars lawsuits by police officers and firefighters from collecting on damages that occur in the course of their duties even if the injuries were a clear result of the other party’s negligence.

Question 62

what is the eggshell plaintiff rule

Answer 62

Under the eggshell plaintiff rule (“take your victim as you find him rule”), the defendant is liable for ALL harm suffered by the plaintiff, even if the plaintiff suffered from an unforeseeable, preexisting mental or physical condition that aggravates the harm.

Question 63

define respondeat superior

Answer 63

Under the doctrine of respondeat superior, an employer (principal) may be liable for torts committed by an employee (agent) if:

An employer-employee relationship exists (NOT an independent contractor relationship);

AND he employee’s commission of the tort occurs within the scope of employment.

Question 64

how do you determine whether an employer-employee relationship exists?

Answer 64

he most important consideration is the extent of control that the principal exercises over the details of the agent’s work

Question 65

how do you determine scope of employment?

Answer 65

In making this determination, courts examine whether the employee’s conduct was:

(i) A function for which the employee was hired to perform;
(ii) Within the employer’s authorized time and space limits;
(iii) Conducted to serve the employer; AND
(iv) Foreseeable to the employer.

Question 66

what is the rule for respondeat superior liability with respect to intentional torts

Answer 66

Generally, employers are NOT liable for the intentional torts of employees UNLESS:

(1) The intentional tort was authorized by the employer; OR
(2) Force is within the scope of employment in the employee’s work (e.g., security guards).

Question 67

employer remain liable during an employee’s _____ even if it was mainly for employee’s own reasons

Answer 67

detour (i.e., a minor deviation from the scope of employment)

Question 68

the employer does NOT remain liable during an employee’s __________

Answer 68

frolic (i.e., a major deviation from the scope of employment)

Question 69

negligence standard for business partners

Answer 69

The negligence of one business partner can be imputed on other business partners if it is committed within the scope of the business’s purpose.

Question 70

what are some ways a plaintiff can recover for negligent infliction of emotional distress

Answer 70

there are three ways that the plaintiff can recover for NIED: zone of danger, bystander recovery, and special relationship

Question 71

what does a plaintiff need to prove under the zone of danger theory to recover for NIED

Answer 71

(a) The defendant negligently caused a threat of physical impact;
(b) The plaintiff was within the “zone of danger” of the threatened physical impact; AND
(c) The threat of physical impact caused emotional distress.

Question 72

what does a plaintiff need to prove under the bystander theory to recover for NIED

Answer 72

(a) The defendant negligently inflicted bodily injury to another;
(b) The plaintiff is closely related to the person injured by the defendant;
(c) The plaintiff was present at the scene of the injury; AND
(d) The plaintiff personally observed the injury.
(e) SOME jurisdictions also require that the plaintiff manifest physical symptoms after witnessing the injury.

Question 73

what does a plaintiff need to prove under the special relationship to recover for NIED

Answer 73

plaintiff can recover for NIED in certain circumstances where a pre-existing relationship exists between the defendant and plaintiff (e.g., doctor/patient). This commonly arises when:

(a) The defendant negligently mishandles a corpse; OR
(b) The defendant negligently provides false medical information (e.g., the plaintiff is told that she has terminal cancer when she is, in fact, perfectly healthy).

Question 74

what is joint and several liability

Answer 74

two or more parties are jointly and severally liable, each party is independently liable for the full extent of the damages stemming from the tortious act

Question 75

what is contribution (joint and several liability)

Answer 75

contribution allows a defendant who pays more than his share of the total liability to recover from the other liable defendants (cannot recover more than the other liable defendant’s percentage share of fault – based on a pure comparative fault theory)

Question 76

define alternative liability

Answer 76

If a plaintiff cannot identify with specificity which among multiple defendants caused his harm, alternative liability allows the plaintiff to shift the burden of proving causation to the defendants - even though only one of them could have been responsible

Question 77

define indemnification, when does it usually arise

Answer 77

indemnification usually arises in situations involving vicarious liability or strict liability

allows a passive tortfeasor who was forced to pay damages to recover a complete reimbursement from an active tortfeasor.

Question 78

list defenses to negligence

Answer 78

contributory negligence
comparative fault
assumption of risk

Question 79

define contributory negligence

Answer 79

In a contributory negligence jurisdiction, a plaintiff CANNOT recover damages if his own negligence contributed to his injury in any way, UNLESS the defendant:

Was engaged in wanton and willful misconduct; OR

Had the last clear chance to avoid injuring the plaintiff, but failed to do so.

Question 80

Contributory negligence is not a valid defense for _________

Answer 80

intentional torts.

Question 81

define comparative fault

Answer 81

the plaintiff’s own negligence limits recovery but is NOT necessarily a complete bar to recovery

two types: pure comparative negligence and modified comparative negligence

Question 82

define pure comparative negligence

Answer 82

the plaintiff’s recovery is limited by the percentage of fault the jury attributes to the plaintiff’s own negligence

if the jury finds the plaintiff is 95% at fault, the plaintiff can recover 5% of her damages

Question 83

define modified comparative negligence

Answer 83

Plaintiff’s recovery is limited by the percentage of fault the jury attributes to the plaintiff’s own negligence. HOWEVER, if the plaintiff is MORE at fault than the defendant, the plaintiff’s recovery is completely barred

in some jurisdictions, if the plaintiff and defendant are equally at fault, the plaintiff’s recovery is completely barred

Question 84

define assumption of risk, what are the two types

Answer 84

defense to negligence that applies when a party knowingly and willingly embraces a risk for some purpose of his own (similar to consent in intentional torts).

Assumption of risk may be express or implied.

Question 85

define strict liability and list the three types

Answer 85

Under strict liability, a defendant will be liable for damages REGARDLESS of how careful they were

three types are: animals, abnormally dangerous activities and defective products

Question 86

strict liability for domestic animals

Answer 86

domestic animals - An owner of a domestic animal will NOT be strictly liable for harm caused by the animal UNLESS the owner knows or has reason to know of the animal’s dangerous propensity.

Question 87

strict liability for wild animals

Answer 87

Wild animals are animals that, as a species or class, are not customarily kept in the service of mankind (e.g., tigers, monkeys, etc.). An owner of a wild animal is strictly liable for any harm caused by the animal regardless of safety precautions taken by the owner. However, owners are generally NOT strictly liable for harm caused to trespassers.

Question 88

strict liability for abnormally dangerous activities

Answer 88

A defendant is strictly liable for damages caused to the plaintiff if he is engaged in abnormally dangerous activities. An abnormally dangerous activity is one that is:

(1) Inherently dangerous;
(2) Inappropriate for the location chosen;
(3) Virtually impossible to make safe; AND
(4) Of little value to the community.

Question 89

A strict liability claim under products liability requires the plaintiff to show

Answer 89

The product was defective in manufacture, design, or failure to warn;
The defect existed when the product left the defendant’s control; AND
The defect caused the plaintiff’s injury when the product was used in a foreseeable way.

Question 90

A defect in manufacture requires the plaintiff to show that the product:

Answer 90

(1) Deviated from its intended design; AND

(2) Fails to conform to the manufacturer’s own design.

Question 91

what are the two ways to test for a design defect

Answer 91

Under the consumer expectation test, the plaintiff must show that the product is less safe than the ordinary consumer would expect

Under the risk-utility test, the plaintiff must show that the product’s risks outweigh its benefits AND that there is a reasonable alternative design.

Question 92

A failure to warn defect requires the plaintiff to show:

Answer 92

(1) The plaintiff was NOT warned of the risks regarding the use of the product;
(2) The risks are NOT obvious to an ordinary user; AND
(3) The designer/manufacturer was in fact aware of such risks.

Question 93

What are the elements of defamation?

Answer 93

the defendant: publishes a defamatory statement

of or concerning the plaintiff (a reasonable person must believe that the defamatory statement referred to this particular plaintiff)

causing damage to the plaintiff’s reputation.

Question 94

what is a defamatory statement

Answer 94

The statement must be false and NOT an opinion. It usually contains language that diminishes respect toward the plaintiff or deters others from associating with the plaintiff.

Question 95

standard required to prove defamation varies depending on whether the plaintiff is a _________ or a ___________

Answer 95

public; private individual

Question 96

what is a public official (defamation elements) and what are the different categories

Answer 96

A public official is a person who has control over government office (includes political candidates).

A general purpose public figure is a person of persuasive power and influence in society.

A limited purpose public figure is a person who has injected himself into a public controversy.

Question 97

what is the standard a public official or a public figure must meet to prove defemation

Answer 97

actual malice standard

requires the plaintiff to show that the person who made the defamatory statement either knew it was false or acted with reckless disregard for the truth.

Question 98

what is the standard a public official or a public figure must meet to prove defemation

Answer 98

actual malice standard

requires the plaintiff to show that the person who made the defamatory statement either knew it was false or acted with reckless disregard for the truth.

Question 99

define private individual

Answer 99

A private individual is any person that is not a public official or public figure.

Question 100

If the plaintiff is a private individual AND the defamatory statement is a matter of public concern, the plaintiff need only prove that the statement was _______ and the speaker was at least ________.

Answer 100

the plaintiff need only prove that the statement was false and the speaker was at least negligent.

Question 101

what damages may a public official or public figure recover

Answer 101

only recover actual proven damages (no punitive or presumed damages).

Question 102

what can a private individual recover

Answer 102

If the plaintiff is a private individual and it is a matter of public concern, the plaintiff can only recover actual damages UNLESS the plaintiff shows actual malice.

Question 103

what can a private individual recover

Answer 103

If the plaintiff is a private individual and it is a matter of public concern, the plaintiff can only recover actual damages UNLESS the plaintiff shows actual malice.

Question 104

define libel and what are the damages available

Answer 104

Libel is a written, printed, or recorded statement (e.g., television/radio broadcasts).

If the defamatory statement is libel, the plaintiff may recover general damages (recovery is allowed without proof of concrete, measurable harm).

Question 105

define slander and slander per se

list the damages for each

Answer 105

Slander is a spoken statement that is not recorded.

f the defamatory statement is slander, the plaintiff may only recover special damages (requires a more concrete showing of actual economic loss).

However, if slander per se applies, the plaintiff is not limited to special damages.