Torts

Question 1

When will a court hold a child or a mentally incompetent person liable for an intentional tort?

Answer 1

A majority of courts hold that both children and those who are mentally incompetent can be held liable for intentional torts if they either act with a purpose or know the consequences of their acts with a substantial certainty.

Question 2

When may a defendant be liable to a third-party victim for IIED?

Answer 2

A defendant may be liable to a third-party victim if the defendant intentionally or recklessly causes severe emotional distress to:

i) A member of the victim’s immediate family who contemporaneously perceives the defendant’s conduct, whether or not such distress results in bodily injury; or
ii) Any other bystander who contemporaneously perceives the conduct, if the distress results in bodily injury.

If the defendant’s design or purpose was to cause severe distress to the third-party victim, the victim need not have contemporaneously perceived the conduct.

Question 3

When is the use of deadly force justified in self-defense?

Answer 3

The defendant may use deadly force only if the defendant has a reasonable belief that force sufficient to cause serious bodily injury or death is about to be intentionally inflicted upon him.

Question 4

What is the firefighter’s rule?

Answer 4

Firefighter’s rule: An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent in the job.

Question 5

What are the elements of assault?

Answer 5

1) Plaintiff’s reasonable apprehension,
2) Of an imminent harmful or offensive bodily contact,
3) Caused by the defendant’s action or threat,
4) With the intent to cause either the apprehension of such contact or the contact itself.

Question 6

Are words sufficient to establish a prima facie case for assault?

Answer 6

For assault, words alone are insufficient. However, words coupled with conduct or other circumstances may be sufficient. If the defendant is able to carry out the threat imminently and takes action designed to put the victim in a state of apprehension, then there may be an assault.

Question 7

What is the definition of a public nuisance?

Answer 7

A public nuisance is an unreasonable interference with a right common to the general public.

Note: A private citizen has a claim for public nuisance only if that citizen suffers harm that is different in kind from that suffered by members of the general public.

Question 8

What is the effect of a plaintiff’s negligence on a strict products liability action?

Answer 8

In most comparative-fault jurisdictions, the plaintiff’s own negligence reduces his recovery in a strict-products-liability action in the same manner as in a negligence action. In those jurisdictions, a plaintiff’s conduct that amounts to an “assumption of the risk” is treated as comparative negligence in order to reduce, but not eliminate, recovery.

Note: In some comparative-fault jurisdictions, the plaintiff’s recovery in strict products liability is not reduced by the percentage that the plaintiff’s fault contributed to causing her injury.

Question 9

What are the elements of intentional infliction of emotional distress (IIED)?

Answer 9

1) The defendant’s intentional or reckless,
2) Extreme and outrageous conduct,
3) That causes,
4) The plaintiff severe emotional distress.

Question 10

When is use of force in defending others justified?

Answer 10

One is justified in using reasonable force in defense of others upon a reasonable belief that the defended party would be entitled to use self-defense. The defender may use force that is proportionate to the anticipated harm to the other party.

Question 11

What is the “shopkeeper’s privilege?”

Answer 11

A shopkeeper’s reasonable (in both duration and manner) detention of an individual that the shopkeeper reasonably believes is shoplifting in order to investigate the facts.

Question 12

How is express consent, as a defense to intentional torts, established?

Answer 12

The plaintiff expressly consents if the plaintiff, by words or actions, manifests the willingness to submit to the defendant’s conduct.

Note: The defendant’s conduct may not exceed the scope of the consent.

Question 13

When will a defendant’s actions be considered intentional?

Answer 13

The defendant acts intentionally if:

i) He acts with the purpose of causing the consequences of his act; or
ii) He acts knowing that the consequence is substantially certain to result.

Question 14

What is the definition of trespass to chattel?

Answer 14

The defendant intentionally interferes with the plaintiff’s right of possession by either:

i) Dispossessing the plaintiff of the chattel; or
ii) Using or intermeddling with the plaintiff’s chattel.

Note: Trespass to chattels requires that the plaintiff show actual harm to or deprivation of the use of the chattel for a substantial time.

Question 15

What is the definition of conversion?

Answer 15

The defendant intentionally commits an act depriving the plaintiff of possession of her chattel or interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff of the use of the chattel.

Note: The plaintiff’s damages are the chattel’s full value at the time of the conversion.

Question 16

What are the elements for intentional misrepresentation (i.e., fraud, deceit)?

Answer 16

The elements for intentional misrepresentation are:

i) The defendant made a misrepresentation of a material fact or failed to disclose a material fact when under an affirmative duty to do so;
ii) The defendant must have known the representation to be false or must have acted with reckless disregard as to its truthfulness (scienter);
iii) The defendant must have intended to induce the plaintiff to act (or refrain from acting) in reliance on the misrepresentation;
iv) The plaintiff must have actually relied on the misrepresentation;
v) The plaintiff’s reliance must have been justifiable; and
vi) The plaintiff must prove actual damages (nominal damages are not awarded).

Question 17

What is the definition of trespass to land?

Answer 17

The defendant’s intentional act causes a physical invasion of the plaintiff’s land.

Note: The defendant need only have the intent to enter the land or to cause a physical invasion. The defendant need not know that the land belongs to another. Mistake of fact is not a defense.

Question 18

Generally, when may a defendant act in self-defense and how much force may the defendant use?

Answer 18

A defendant may act in self-defense when the defendant reasonably believes an offensive contact or bodily harm is about to be intentionally inflicted upon him.

The force used in self-defense must be reasonably proportionate to the anticipated harm.

Note: A person’s mistaken belief that he is in danger, so long as it is a reasonable mistake, does not invalidate this defense.

Question 19

What is the doctrine of “transferred intent?”

Answer 19

Transferred intent exists when a person intends to commit an intentional tort against one person but instead commits:

i) A different intentional tort against that person;
ii) The intended tort against a different person; or
iii) A different intentional tort against a different person.

Question 20

When is conduct considered extreme and outrageous for the purposes of IIED?

Answer 20

Conduct is extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society. The character of the conduct must be outrageous and the conduct must be sufficiently unusual to be extreme.

Note: While liability generally does not extend to mere insults, threats, or indignities, a defendant’s abusive language and conduct may be sufficiently “extreme and outrageous” if the defendant is in a position of authority or influence over the plaintiff, or the plaintiff is a member of a group with a known heightened sensitivity.

Question 21

When does the initial aggressor have a right to claim self-defense?

Answer 21

The initial aggressor is not entitled to claim self-defense unless the other party has responded to nondeadly force with deadly force.

Question 22

What is the definition of a private nuisance? How does a defendant’s compliance with governmental regulations affect a private nuisance action?

Answer 22

A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual’s use and enjoyment of his land.

Statutory or regulatory compliance is not a complete defense but may be admitted as evidence as to whether the interference with the plaintiff’s use and enjoyment of her land is unreasonable.

Question 23

What is a “Good Samaritan” statute?

Answer 23

A “Good Samaritan” statute protects doctors and other medical personnel when they voluntarily render emergency care. These statutes exempt medical professionals from liability for ordinary negligence; however, they do not exempt them from liability for gross negligence.

Question 24

What effect does evidence of custom have on the standard of care in a negligence action?

Answer 24

Evidence of a custom in a community or an industry is admissible as evidence to establish the proper standard of care, but such evidence is not conclusive.

Question 25

What defenses are available to a defamation action?

Answer 25

1) Truth is a complete defense.
2) Consent is a defense, provided the scope of the consent is not exceeded.
3) Absolute privileges exist for statements made:
(i) In the course of judicial proceedings by the participants to the proceeding or legislative proceedings by witnesses to the proceedings;
(ii) Between spouses concerning a third person; and
(iii) As required publications by radio, television, or newspaper.
4) Qualified (conditional) privileges exist for statements:
(i) Made in the interest of the publisher (defendant), such as defending his reputation;
(ii) Made in the interest of the recipient of the statement or a third party; or
(iii) Affecting an important public interest.

Question 26

In negligence actions, what standard of care applies to a professional?

Answer 26

A professional person (e.g., doctor, lawyer, or electrician) is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community.

A specialist may be held to a higher standard than a general practitioner because of his superior knowledge.

Note: Establishing negligence by a professional person generally requires expert testimony to establish both the applicable standard of care and the defendant’s deviation from that standard.

Question 27

What elements must be established for violation of a statute to constitute negligence per se?

Answer 27

1) A criminal or regulatory statute imposes a specific duty for protection of others;
2) The defendant neglects to perform the duty;
3) The defendant is liable to anyone in the class of people intended to be protected by statute; and
4) The harm is of the type the statute was intended to protect against.

Note: In a minority of jurisdictions, violation of the statute is merely evidence of negligence (a rebuttable presumption as to duty and breach rather than a conclusive presumption).

Question 28

What test is applied by most courts when the conduct of two or more defendants may have contributed to a plaintiff’s indivisible injury?

Answer 28

Substantial-factor test: In cases in which the conduct of two or more defendants may have contributed to a plaintiff’s indivisible injury, each of which alone would have been a factual cause of that injury, the test applied by most courts is whether the defendant’s tortious conduct was a substantial factor in causing the plaintiff’s harm.

Note: Under the minority rule of the Third Restatement, each such cause or act is regarded as a factual cause of the harm. Together they are designated as “multiple sufficient causes.”

Question 29

When does an intervening event (an act or event occurring after the defendant’s tortious act and before the plaintiff’s injury) cut off a defendant’s liability?

Answer 29

An intervening event that breaks the chain of proximate causation between the defendant’s tortious act and the plaintiff’s harm is a superseding cause. An unforeseeable intervening event is generally treated as a superseding cause, while a foreseeable intervening event generally is not.

Question 30

What is the most important thing a plaintiff must prove to be awarded damages in a negligence action?

Answer 30

The plaintiff must prove actual harm (personal injury, property damage) to be entitled to damages for negligence. Nominal damages are not available.

Question 31

What are the elements of battery?

Answer 31

1) The defendant causes,
2) A harmful or offensive contact,
3) To the person of another, and
4) The defendant acts with the intent to cause such contact or the apprehension of such contact.

Question 32

What is the doctrine of joint and several liability?

Answer 32

Under the doctrine of joint and several liability, each of two or more tortfeasors who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm. The plaintiff has the choice of collecting the entire judgment from one defendant, the entire judgment from another defendant, or portions of the judgment from various defendants, as long as the plaintiff’s entire recovery does not exceed the amount of the judgment.

Note: Always apply joint and several liability on the MBE unless the facts instruct you to apply a different test.

Question 33

Who may be a defendant in a strict products liability action?

Answer 33

The defendant must be in the business of selling or otherwise distributing products of the type that harmed the plaintiff, which includes the manufacturer of the product, its distributor, and its retail seller.

Note: If the seller is a commercial supplier of the product, the seller is subject to strict liability for a defective product, even if the revenue from sales of the product is not a significant portion of its business. The seller is generally strictly liable even if the seller was not responsible for the defect in any way and even when the product is not purchased directly from the seller.

Question 34

What is the traditional rule for contributory negligence?

Answer 34

The plaintiff’s contributory negligence (i.e., failure to exercise reasonable care for her own safety) is a complete bar to recovery, regardless of the percentage that the plaintiff’s own negligence contributed to the harm.

Question 35

What is the imminence requirement for assault?

Answer 35

The threatened bodily harm or offensive contact must be imminent, i.e., without significant delay. Threats of future harm are insufficient, as are threats made by a defendant too far away to inflict any harm.

Question 36

What are two major forms of comparative negligence? Define each.

Answer 36

1) Pure comparative negligence: The plaintiff’s full damages are calculated by the trier of fact and then reduced by the proportion that the plaintiff’s fault bears to the total harm.

2) Partial (Modified) comparative negligence:
(i) If the plaintiff is less at fault than the defendant, the plaintiff’s recovery is reduced by his percentage of fault, just as in a pure comparative-fault jurisdiction;
(ii) If the plaintiff is more at fault than the defendant, the plaintiff’s recovery is barred, just as in a contributory-negligence jurisdiction;
(iii) In the vast majority of modified comparative-fault jurisdictions, if the plaintiff and the defendant are found to be equally at fault, the plaintiff recovers 50% of his total damages. In a few modified comparative-fault jurisdictions, the plaintiff recovers nothing when the plaintiff and the defendant are equally at fault.

Question 37

In negligence actions, what standard of care is imposed upon a child?

Answer 37

The standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience.

Note: A child engaged in a high-risk activity that is characteristically undertaken by adults, such as driving a car, is held to the same standard as an adult.

Question 38

What is the effect of an exculpatory clause in a contract under which the defendant disclaims liability for negligence? In what situations will it not be enforced?

Answer 38

An exculpatory clause in a contract can constitute an express assumption of the risk by the plaintiff that operates as an affirmative defense to a negligence action.

Note: Many courts now hold that disclaimer of liability by contract negates the fact that the defendant owes a duty of care to the plaintiff in the first place, causing the plaintiff’s prima facie case to fail, rather than operating as an affirmative defense.

Courts will not enforce exculpatory provisions:

i) Disclaiming liability for reckless or wanton misconduct or gross negligence;
ii) When there is a gross disparity of bargaining power between the parties;
iii) When the party seeking to apply the exculpatory provision offers services of great importance to the public that are a practical necessity for some members of the public such as medical services;
iv) If the exculpatory clause is subject to typical contractual defenses such as fraud or duress; or
v) When it is against public policy to enforce agreements that insulate people from the consequences of their own negligence.

Question 39

In negligence actions, what is the general standard of care?

Answer 39

The general standard of care imposed is that of a that of a reasonably prudent person under the circumstances. The standard is an objective one. Under this standard, the defendant is presumed to have average mental abilities and the same knowledge as an average member of the community, but a defendant’s particular physical characteristics (e.g., blindness) are taken into account.

Note: If a defendant possesses special skills or knowledge, she is held to a higher standard, i.e., she must exercise her superior competence with reasonable attention and care.

Question 40

When has a plaintiff impliedly assumed a risk? What is the effect of that assumption?

Answer 40

Generally, a plaintiff must voluntarily encounter a known, specific risk in order to have impliedly assumed that risk. Most courts hold that the voluntary encountering must also be unreasonable.

In most comparative fault jurisdictions, this form of assumption of the risk has been merged into the comparative-fault analysis and merely reduces recovery. In the few contributory negligence jurisdictions and in a minority of comparative-fault jurisdictions, this form of assumption of the risk remains a total bar to recovery.

Question 41

What are the elements for intentional interference with a contract?

Answer 41

To establish a prima facie case for intentional interference with a contract, the plaintiff must prove that:

i) A valid contract existed between the plaintiff and a third party;
ii) The defendant knew of the contractual relationship;
iii) The defendant intentionally interfered with the contract, causing a breach; and
iv) The breach caused damages to the plaintiff.

Question 42

What is the distinction between libel and slander? What effect does the classification of defamation as one or the other have on damages?

Answer 42

Libel is defamation by words written, printed, or otherwise recorded in permanent form. Slander is defamation by spoken word, gesture, or any form other than libel.

Generally, and subject to constitutional restrictions, presumed damages may be awarded for libel, but slander requires proof of special damages unless it constitutes slander per se.

Question 43

When is the owner of a domestic animal strictly liable for harm done by the animal?

Answer 43

A domestic animal’s owner is strictly liable for injuries caused by that animal if he knows or has reason to know of the animal’s dangerous propensities, and the harm results from those dangerous propensities.

Question 44

When is a product defective?

Answer 44

A product is defective when, at the time of the sale or distribution, it contains a:
i) Manufacturing defect: A deviation from what the manufacturer intended the product to be that causes harm to the plaintiff (the test is whether the product conforms to the defendant’s product specifications);

ii) Design defect: A defect in the design of the product as determined under the consumer expectation test (unreasonably dangerous beyond the expectation of an ordinary user) and/or the risk-utility test (a reasonable alternative design that was economically feasible was available to the defendant and the failure to use that design rendered the product not reasonably safe); or
iii) Failure-to-warn defect: There is a foreseeable risk of harm, not obvious to an ordinary user of the product, which risk could have been reduced or avoided by providing reasonable instructions or warnings, rendering the product not reasonably safe.

Question 45

To which five torts does the doctrine of transferred intent apply?

Answer 45

1. Battery
2. Assault
3. False imprisonment
4. Trespass to chattels
5. Trespass to land

Question 46

What is the learned-intermediary rule regarding prescription drugs and medical devices in the context of strict products liability?

Answer 46

The manufacturer of a prescription drug or medical device typically satisfies its duty to warn the consumer by informing the prescribing physician, rather than the patient, of problems with the drug or device.

Question 47

What is the majority rule for proximate cause?

Answer 47

A defendant is liable for reasonably foreseeable consequences resulting from his conduct. In addition, the type of harm must be foreseeable, although the extent of harm does not need to be foreseeable. A defendant’s liability is limited to those harms that result from the risks that made the defendant’s conduct tortious, within the scope of liability of the defendant’s conduct.

Question 48

What types of damages are permitted for strict products liability claims?

Answer 48

Only personal injury or property damage. A claim for purely economic loss must be brought as a breach-of-warranty action.

Question 49

What are four invasion of privacy torts?

Answer 49

1) Misappropriation of the right to publicity;
2) Intrusion upon seclusion;
3) Placing the plaintiff in a false light; and
4) Public disclosure of private facts

Question 50

What is the “eggshell skull” rule?

Answer 50

The defendant is liable for the full extent of the plaintiff’s injuries that may be increased because of the plaintiff’s preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable.

Question 51

What are the elements of assault?

Answer 51

1) Plaintiff’s reasonable apprehension,
2) Of an imminent harmful or offensive bodily contact,
3) Caused by the defendant’s action or threat,
4) With the intent to cause either the apprehension of such contact or the contact itself.

Question 52

What is the effect of a plaintiff’s negligence on a strict products liability action?

Answer 52

In most comparative-fault jurisdictions, the plaintiff’s own negligence reduces his recovery in a strict-products-liability action in the same manner as in a negligence action. In those jurisdictions, a plaintiff’s conduct that amounts to an “assumption of the risk” is treated as comparative negligence in order to reduce, but not eliminate, recovery.

Note: In some comparative-fault jurisdictions, the plaintiff’s recovery in strict products liability is not reduced by the percentage that the plaintiff’s fault contributed to causing her injury.

Question 53

What qualifies as contact with the “plaintiff’s person” for the purposes of battery?

Answer 53

Contact with anything connected to the plaintiff’s person qualifies as contact with the plaintiff’s person for the purposes of battery (e.g., a person’s clothing, a pet held on a leash, a bicycle ridden by the plaintiff).

Question 54

When may a private citizen make an arrest?

Answer 54

A private citizen is privileged to use force (e.g., commit a battery or false imprisonment tort) to make an arrest in the case of a felony if the felony has in fact been committed and the arresting party has reasonable grounds to suspect that the person being arrested committed it.

Question 55

What are the elements of false imprisonment?

Answer 55

1) The defendant intends to confine or restrain another within boundaries fixed by the defendant (no reasonable means of safe escape);
2) Those actions directly or indirectly result in such confinement; and;
3) The plaintiff is conscious of the confinement or harmed by it.

Question 56

In what ways may a plaintiff be confined resulting in false imprisonment?

Answer 56

The defendant may confine or restrain the plaintiff by the use of physical barriers, physical force, direct or indirect threats (to the plaintiff, a third party, or the plaintiff’s property), or by the invalid use of legal authority, duress, or the failure to provide a reasonable means of safe escape.

Question 57

In what circumstances does a landlord have negligence liability to a tenant or third party for injuries suffered on the leased premises?

Answer 57

The landlord remains liable for injuries to the tenant and others occurring:

i) In common areas such as parking lots, stairwells, lobbies, and hallways;
ii) As a result of hidden dangers about which the landlord fails to warn the tenant;
iii) On premises leased for public use;
iv) As a result of a hazard caused by the landlord’s negligent repair; or
v) Involving a hazard that the landlord has agreed to repair.

Question 58

What level of force may be used when recapturing one’s personal property?

Answer 58

A person may use reasonable force to reclaim personal property that another has wrongfully taken. Before using reasonable force, the person must request the return of the chattel unless the request would be futile.

Note: If the original taking was lawful (e.g., a bailment) and the current possessor of the property has merely retained possession beyond the period of time to which the owner consented, then only peaceful means may be used to reclaim the chattel.

Question 59

When may someone use force to defend property?

Answer 59

A person may use reasonable force to defend her property if she reasonably believes it is necessary to prevent tortious harm to her property.

Question 60

Who may be a defendant in a strict products liability action?

Answer 60

The defendant must be in the business of selling or otherwise distributing products of the type that harmed the plaintiff, which includes the manufacturer of the product, its distributor, and its retail seller.

Note: If the seller is a commercial supplier of the product, the seller is subject to strict liability for a defective product, even if the revenue from sales of the product is not a significant portion of its business. The seller is generally strictly liable even if the seller was not responsible for the defect in any way and even when the product is not purchased directly from the seller.

Question 61

What are the four elements of negligence?

Answer 61

A prima facie case of negligence consists of four elements:

i) Duty, the obligation to protect another against unreasonable risk of injury;
ii) Breach, the failure to meet that obligation;
iii) Causation, a close causal connection between the action and the injury; and
iv) Damages, the loss suffered.

Note: The plaintiff must establish all four elements of negligence by a preponderance of the evidence.

Question 62

What is the effect of a plaintiff’s establishment of res ipsa loquitur?

Answer 62

If the plaintiff establishes a prima facie case of res ipsa, then the trial court should deny the defendant’s motion for a directed verdict, and the issue of negligence must be decided by the trier of fact. In most jurisdictions, res ipsa does not require that the trier of fact find negligence on the defendant’s part. It simply establishes an inference of negligence sufficient to avoid dismissal of the plaintiff’s action.

Question 63

When determining whether contact is harmful for the purposes of battery, what are the objective and subjective tests?

Answer 63

Objective test: contact is offensive when a person of ordinary sensibilities (i.e., a reasonable person) would find the contact offensive.

Subjective test: a defendant may be liable if he is aware that the victim is hypersensitive but proceeds to act nonetheless. In such a case, the fact that a reasonable person would not find the contact offensive is not a defense.

Question 64

What are the Andrews and Cardozo views regarding the foreseeability of a plaintiff?

Answer 64

Cardozo (majority) view - a duty of care is owed to the plaintiff only if she is a member of the class of persons who might be foreseeably harmed (sometimes called “foreseeable plaintiffs”) as a result of the defendant’s negligent conduct.

Andrews (minority view) - if the defendant can foresee harm to anyone as a result of his negligence, then a duty of care is owed to everyone (foreseeable or not) harmed as a result of his breach.

Question 65

Must the plaintiff be aware of what is happening for an act to constitute assault or battery?

Answer 65

For assault, the plaintiff must be aware or have knowledge of the defendant’s act or threat. However, there is no such requirement for battery.

Question 66

What are six circumstances in which a defendant has an affirmative duty to act?

Answer 66

1) Assumption of duty - A person who voluntarily aids or rescues another has a duty to act with reasonable ordinary care in the performance of that aid or rescue.
2) Placing another in peril - A person who places another in peril is under a duty to exercise reasonable care to prevent further harm by rendering care or aid.
3) Contract - There is a duty to perform contractual obligations with due care.
4) Authority - One with actual ability and authority to control another, such as parent over child and employer over employee, has an affirmative duty to exercise reasonable control.
5) Special relationship - A defendant with a unique relationship to a plaintiff, such as business proprietor–patron, common carrier–passenger, innkeeper-guest, employer-employee, or parent-child, may have a duty to protect, aid, or assist the plaintiff and to prevent reasonably foreseeable injury to her from third parties.
6) Statutory obligation - A statute that imposes an obligation to act for the protection another but does not expressly or impliedly create or reject a private cause of action may give rise to an affirmative duty to act.

Question 67

What is the majority rule for proximate cause?

Answer 67

A defendant is liable for reasonably foreseeable consequences resulting from his conduct. In addition, the type of harm must be foreseeable, although the extent of harm does not need to be foreseeable. A defendant’s liability is limited to those harms that result from the risks that made the defendant’s conduct tortious, within the scope of liability of the defendant’s conduct.

Question 68

What is a “Good Samaritan” statute?

Answer 68

A “Good Samaritan” statute protects doctors and other medical personnel when they voluntarily render emergency care. These statutes exempt medical professionals from liability for ordinary negligence; however, they do not exempt them from liability for gross negligence.

Question 69

What are the elements of defamation?

Answer 69

A plaintiff may bring an action for defamation if:

i) The defendant’s defamatory language;
ii) Is of or concerning the plaintiff;
iii) Is published to a third party who understands its defamatory nature; and
iv) It damages the plaintiff’s reputation.

For matters of public concern, the plaintiff is constitutionally required to prove fault on the part of the defendant. If the plaintiff is either a public official or a public figure, then the plaintiff must prove actual malice.

If either (i) the defamatory statement relates to a matter of public concern or (ii) the plaintiff is a public official or a public figure, then the plaintiff must also prove that the defamatory statement is false.

Question 70

Name the three types of entrants to whom a possessor of land owe a duty and and the duty owed to each.

Answer 70

1. Trespasser - A land possessor is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers. (Note: Land possessors generally owe no duty to undiscovered trespassers, nor do they have a duty to inspect their property for evidence of trespassers.)
2. Licensee - A land possessor has a duty to either correct or warn a licensee of concealed dangers that are either known to the land possessor or that should be obvious to her. (Note: The land possessor does not have a duty to inspect for dangers, but must exercise reasonable care in conducting activities on the land.)
3. Invitee - A land possessor owes an invitee the duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them. (Note: The duty of reasonable care owed to an invitee does not extend beyond the scope of the invitation, and the invitee is treated as a trespasser in areas beyond that scope.)

Question 71

What is the rule regarding a parent or educator’s use of force in disciplining a child?

Answer 71

A parent may use reasonable force or impose reasonable confinement as is necessary to discipline a child, taking into consideration the age of the child and the gravity of the behavior. An educator has the same privilege unless the parent places restrictions on that privilege.

Question 72

What does it mean to be “confined within boundaries” for the purposes of false imprisonment?

Answer 72

The plaintiff must be confined within a bounded area in which the plaintiff’s freedom of movement in all directions is limited. The bounded area may be large and need not be stationary.

Note: An area is not bounded if there is a reasonable means of safe escape of which the plaintiff is aware.

Question 73

What are the elements of res ipsa loquitur under the traditional approach?

Answer 73

Under the traditional standard for res ipsa loquitur, the plaintiff must prove that:

i) The accident was of a kind that ordinarily does not occur in the absence of negligence;
ii) It was caused by an agent or instrumentality within the exclusive control of the defendant; and
iii) It was not due to any action on the part of the plaintiff.

Question 74

When may someone use deadly force to defend property?

Answer 74

Deadly force may not be used merely in defense of property. A person may never
use a deadly mechanical device (e.g., a spring-loaded gun) to defend property.

Question 75

What test is generally applied to determine whether a defendant’s conduct was the actual cause of the plaintiff’s harm?

Answer 75

“But for” test: If the plaintiff’s injury would not have occurred but for the defendant’s tortious act or omission, then the defendant’s conduct is a factual cause of the harm.

Question 76

What is the traditional rule for contributory negligence?

Answer 76

The plaintiff’s contributory negligence (i.e., failure to exercise reasonable care for her own safety) is a complete bar to recovery, regardless of the percentage that the plaintiff’s own negligence contributed to the harm.

Question 77

What is the firefighter’s rule?

Answer 77

Firefighter’s rule: An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent in the job.

Question 78

What types of damages are permitted for strict products liability claims?

Answer 78

Only personal injury or property damage. A claim for purely economic loss must be brought as a breach-of-warranty action.

Question 79

How does product misuse affect the recovery of damages in a strict products liability action?

Answer 79

The misuse, alteration, or modification of a product by the user in a manner that is neither intended by nor reasonably foreseeable to the manufacturer typically negates the manufacturer’s liability.

Question 80

What are two ways in which assault differs from battery?

Answer 80

1) Bodily contact is not required for assault.

2) The plaintiff must be aware of or have knowledge of the defendant’s act or threat for assault.