Torts

Question 1

Prima facie case of any intentional tort

Answer 1

Act by defendant- volitional movement
Intent by defendant- intent to bring about forbidden consequences defendant doesn’t have to intend the specific injury that results
Causation of the result to the plaintiff from defendant’s act- defendant’s act a substantial factor in bringing about the injury

Question 2

Transferred intent

Answer 2

Intent transfers between torts and between plaintiffs/ Transferred intent can be invoked only if both the tort intended and the tort that results are:

• assault
• battery
• false imprisonment
• trespass to land
• trespass to chattels

Question 3

Battery

Answer 3

Harmful or offensive contact with plaintiff’s person.

Contact is harmful if it causes actual injury, pain, disfigurement. Contact is offensive if would be considered offensive to a reasonable person. (contact offensive only if it wasn’t consented to or permitted. Consent implied for ordinary contacts of everyday life)

Can recover nominal damages even if actual damages aren’t proved. Plaintiff can recover punitive damages for malicious conduct.

Question 4

Assault

Answer 4

Act by defendant creating a reasonable apprehension in the plaintiff of an immediate battery (harmful or offensive contact to plaintiff’s person).

For apprehension to be shown, plaintiff must have been aware of the threat from defendant’s act although plaintiff need not be aware of the defendant’s identity.

Words alone not enough. Words can negate reasonable apprehension though.

Immediacy required.

damages not required.

Question 5

False imprisonment

Answer 5

An act or ommission on part of defendant that confines or restraints plaintiff and plaintiff confined to a bounded area.

Irrelevant how short the time of confinement is. Plaintiff must know of the confinement or be harmed by it. For an area to be sufficiently bounded, there must be no reasonable means of escape known to the plaintiff.

damages not required.

Question 6

Intentional infliction of emotional distress

Answer 6

Act by defendant amounting to extreme and outrageous conduct. Plaintiff must suffer severe emotional distress.

Conduct that transcends all bounds of decency- conduct that is not normally outrageous may become so if it is continuous in nature, committed by a certain type of defendant or directed towards a certain type of plaintiff.

Recklessness as to the effect of the defendnat’s conduct will satisfy the intent requirement.

Actual damages required, not nominal damages. Proof of physical injury generally not required.

Question 7

Bystander emotional distress

Answer 7

defendant’s conduct directed at third person and plaintiff suffers severe emotional distress. Plaintiff can recover by showing either prima facie case elements of emotional distress or that they were present when injury occurred, distress resulted in bodily harm or plaintiff is close relative of the third person and defendant knew these facts.

Question 8

Trespass to land

Answer 8

Physical invasion of plaintiff’s real property.

Invasion made by person or object. Trespass claim belongs to the person with the right to possess the property (i.e. tenant not landlord).

Defendant only has to intend to enter onto the land, doesn’t have to know that the land belongs to someone else.

Damages not required

Question 9

Trespass to chattels

Answer 9

Act by defendant that interferes with plaintiff’s right of possession in a chattel.

Intermeddling (damaging the chattel) or dispossession (depriving plaintiff of rightful possession)

Mistaken belief that you own the chattel is no defense.

Actual damages, not necessarily to chattel but to possessory right are required.

Question 10

Conversion

Answer 10

Act by defendant that interferes with plaintiff’s right of possession in a chattel. Interference is serious enough in nature or consequences to warrant that defendant pay chattel’s full value.

Theft, wrongful transfer, wrongful detention, substantially changing, severely damaging, or misusing a chattel.

Mistake as to ownership is no defense.

Plaintiff can recover damages (fair market value at time of conversion) or possession (replevin).

Question 11

Consent as a defense to intentional torts

Answer 11

Was there valid consent? Did defendant stay within the boundaries of the consent.

People without capacity cannot consent. Persons with limited capacity can consent but only to things within the scope of their understanding.

Express consent negated if (1) defendant knew of and took advantage of a mistake, (2) consent induced by fraud invalidated if it goes to an essential matter, (3) consent obtained by duress will be invalidated unless duress is only threats of future action or future economic depriviation.

implied consent.

Cannot exceed the scope fo the consent given

Question 12

Self-defense as a defense to intentional tort

Answer 12

When a person reasonably believes that they are being or are about to be attacked, they may use such force as is reasonably necessary to protect against injury.

Majority rule says no duty to retreat. Modern trend is to retreat before using deadly force if this can be done safely, unless bad actor is in your home.

Self-defense not available to initial aggressor unless the other party responds to aggressor’s nondeadly force by using deadly force.

Self-defense may extend to third party injuries.

Reasonable mistake as to existence of danger allowed.

Can only use force that reasonably appears to be necessary to prevent the harm.

Question 13

Defense of others as a defense to intentional tort

Answer 13

Can use force to defend another when you reasonably believe that the other person could have used force to defend themselves.

reasonable mistake permitted.

Can use as much force as you would have used in self-defense if you were the one threatened with the injury.

Question 14

Defense of property

Answer 14

Can use reasonable force to prevent the commission of a tort against real or personal property. A request to desist or leave must first be made unless it clearly would be futile or dangerous.

defense does not apply once the tort is committed but can use force in hot pursuit of another who has tortiously disposed the owner of their chattels because the tort is viewed as still in progress if defendant is fleeing.

If there is a privilege to enter the land, that supersedes defense to property.

Reasonable force can be used but cannot use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm.

Question 15

Shopkeeper’s privilege

Answer 15

Shopkeeper has a privilege to detain a suspected shoplifter for investigation.

(1) reasonable belief as to the fact of theft
(2) detention must be conducted in a reasonable manner and only nondeadly force can be used
(3) detention must be only for a reasonable period of time and only for the purpose of making an investigation

Question 16

Necessity

Answer 16

Person may interfere with the real or personal property of another when it is reasonably and apparently necessary in an emergency to avoid injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it.

Question 17

Public necessity

Answer 17

Acted to avert imminent public disaster. Don’t have to pay for damage you cause.

Question 18

Private necessity

Answer 18

Action to prevent serious harm for a limited number of people. Must pay for any injury caused unless act was to benefit the property owner.

Question 19

prima facie case of negligence

Answer 19

duty
breach
actual and proximate cause
damages

Question 20

Duty of care

Answer 20

Owed only to foreseeable plaintiffs.

Resucer is a foreseeable plaintiff when defendant negligently put themselves or a third person in peril. Firefighters and police officers cannot recover for injuries arising from inherently dangerous parts of their jobs.

Question 21

Basic standard of care

Answer 21

Reasonably prudent person. Measured against what the average person would do in like circumstances.

Mental deficiencies and inexperience are not taken into account. Low intelligence is not an excuse.

A person who has knowledge or experience superior to that of an average person is required to exercise that experience.

Reasonably prudent person considered to have the same physical characteristics as the defendant if those physical characteristics are relevant to the claim.

Question 22

Child standard of care

Answer 22

Children as held to the standard of a child of like age, intelligence, and experience. Children engaged in potentially dangerous adult activities may be required to conform to an adult standard of care.

Question 23

Professional standard of care

Answer 23

Profession required to possess the knowledge and skill of an average member of the profession or occupation in good standing.

Doctors have a duty to disclose the risks of treatment. Duty breached if undisclosed risk was serious enough that a reasonable person in patient’s position would have withheld consent on learning of the risk.

Question 24

Duty to unknown tresspassers

Answer 24

No duty owed to unknown trespassers

Question 25

Duty to known trespassers

Answer 25

Must warn or make safe any conditions that are

• artificial
• highly dangerous involving risk of death or serious bodily harm
• concealed
• known to land possessor in advance

Question 26

duty to licensees

Answer 26

Licensee is one who enters onto the land with the possessor’s permission for their own purpose or business, rather than for the possessor’s benefit. Duty to warn or make safe hazardous conditions that are

(1) concealed
(2) known to land possessor in advance

Question 27

Duty to invitees

Answer 27

Invitees enter onto land in response to invitation by the processor. They lose that status if they exceed the scope of the invitation. Landowner or occupier owes a duty to invitees regarding hazardous conditions that are

(1) concealed
(2) known to land possessor in advance or could have been discovered by reasonable inspection

Question 28

Attractive nuisance doctrine

Answer 28

Courts impose on landowner duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous artificial conditions on their property. Plaintiff must show

• dangerous condition on land that owner is or should be aware of
• owner knows or should know that children might trespass on the land
• condition is likely to cause injury (dangerous because of child’s inability to appreciate risk)
• expense of remedying the situation is slight compared with magnitude of the risk

Question 29

Statutory duty of care

Answer 29

May replace general common law duty of care if:

(1) plaintiff is within the protect class
(2) statute was designed to prevent the type of harm suffered by plaintiff

Excuse for violating some statutes may be where compliance would cause more danger than the violation or compliance would be beyond defendant’s control

If you find this, negligence per se. Presumption of duty and breach in the prima facie case.

Question 30

No affirmative duty to act

Answer 30

Unless special relationship like parent-child or common carrier.

Exception is duty to assist someone you’ve negligently or innocently placed in peril.

Once you undertake to aid someone, you must do it with reasonable care.

Question 31

Negligent infliction of emotional distress

Answer 31

Subjecting plaintiff to a threat of physical impact or severe emotional distress likely to cause physical symptoms.

Near miss cases- defendant creates a foreseeable risk of physical injury to plaintiff

(1) plaintiff within zone of danger
(2) plaintiff suffers physical symptoms from the distress

Bystander cases- bystander who is outside the zone of danger who sees the defendant negligently injuring another can recover damages for their own distress if

(1) plaintiff and person injured are closely related
(2) plaintiff present at scene and personally observed or perceived the event
(3) most states don’t require physical symptoms

Question 32

res ipsa loquitur

Answer 32

Accident causing the injury is a type that would not normally occur unless someone was negligent. Negligence is probably attributable to the defendant (can shown by evidence that the instrumentality causing the injury was in defendant’s exclusive control).

When this is established, plaintiff has made a prima facie case and no directed verdict can be given for defendant.

Question 33

Actual cause

Answer 33

An act or omission is a factual cause of an injury when the injury would not have occurred but for the act or ommission

Question 34

Merged causes

Answer 34

Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, the defendant’s conduct is the cause in fact if it was a substantial factor in causing the injury.

Question 35

Unascertainable causes

Answer 35

Two acts, only one of which causes injury, but it is not known which one. Burden shifts to defendant to show that his negligence is not the actual cause.

Question 36

Proximate cause

Answer 36

Defendant generally liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts.

Question 37

Common foreseeable intervening causes

Answer 37

• medical malpractice
• negligence of rescuers
• protection or reaction forces to defendant’s conduct
• disease or accident substantially caused by the original injury

Intervening forces that are not just a natural response or reaction to the situation created by defendant’s conduct may be foreseeable if defendant’s negligence increased the risk of harm from these forces.

Question 38

Negligence damages

Answer 38

economic damages like medical expenses
noneconomic damages like pain and suffering
emotional distress resulting from the injury (typically cannot recover for harm to property)
punitive damages if defendant’s conduct is wanton and willful, reckless or malicious

Question 39

Assumption of risk

Answer 39

plaintiff knew of risk and voluntarily proceeded in the face of risk

Not a defense to intentional torts

Question 40

comparative negligence

Answer 40

plaintiff’s contributory negligence is not a complete bar to recovery. trier of fact weighs plaintiff’s negligence and reduces damages accordingly.

Pure comparative nelgigence- allow recovery no matter how great plaintiff’s negligence was.

Question 41

Strict liability for domestic animals

Answer 41

No strictly liable for injuries caused by domestic animals unless owner has knowledge of the animal’s dangerous propensities that are not common to the species

Owner strictly liable for a reasonably foreseeable damage done by trespass of his animals

Question 42

Strict liability for wild animals

Answer 42

Owner strictly liable to licensees and invitees for injuries caused by wild animals

Trespasser must prove the owner’s negligence.

Question 43

Abnormally dangerous activities

Answer 43

Activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors. the activity is not a matter of common usage in the community.

Defendant’s liability extends only to foreseeable plaintiffs and the harm must result from the kind of danger to be anticipated from the dangerous activity including harm caused from fleeing.

Question 44

Products liability strict liability

Answer 44

• defendant is a merchant (includes entire distribution chain)
• product defective
• product not substantially altered since leaving defendant’s control (if product moved through normal channels of distribution it will be inferred that the product was not altered and the defect existed when product left defendant’s control)
• plaintiff was making a foreseeable use of the product at the time of injury
• physical injury or property damage must be shown

Any foreseeable plaintiff including a bystander can sue any commercial supplier in the chain of distribution regardless of the absence of a contractual relationship between them.

Question 45

Manufacturing defects

Answer 45

Product emerges from manufacturing different from and more dangerous than the products that were made properly. Defendant will be liable if plaintiff can show that the product failed to perform as safely as an ordinary customer would expect.

Question 46

Design defects

Answer 46

All products of a line are the same but have dangerous propensities, they may be found to have a design defect. Plaintiff must show that the defendant could have made the product safer without serious impact on the product’s utility or price.

Noncompliance with government safety standard establishes defective. Compliance with safety standards and labeling requirements is evidence but is not conclusive that the product is not defective

Question 47

Failure to warn

Answer 47

Product may be defective as a result of the manufacturer’s failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent to users.

Question 48

Nuisance

Answer 48

Invasion of property rights by tortious conduct.

Private nuisance- substantial unreasonable interference with another private individual’s use or enjoyment of property that the other individual actually possesses or has a right of immediate possession

Substantial interference is interference that is offensive, inconvenient or annoying to the average person in the community

Public nuisance- an act that unreasonably interferes with the health, safety, or property rights of the community. Private party can only recover if they suffered unique damage that was not suffered by the public at large.

Question 49

Vicarious liability- employer employee

Answer 49

An employer will be vicariously liable for tortious acts committed by their employee if the tortious acts occur within scope of employment relationship. An act is within the scope of employment if it is expressly authorized by the employer or of the same general nature as employee’s job and motivated by a desire to serve the employer.

Employee making a minor deviation from their employer’s business for their own purposes is still acting within scope of employment. If deviation in time or geographic area is substantial, employer not liable.

Intentional torts usually not within scope unless

• employee furthering the business of the employer
• force authorized in employment
• friction generated by the employment

Question 50

joint and several liability

Answer 50

when two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable

Contribution allows a defendant who pays more than their share of damages under joint and several liability to have a claim against other jointly liable parties for the excess.

Question 51

defamation

Answer 51

• defamatory statement that specifically identifies plaintiff (one that tends to adversely affect one’s reputation)
• published to third party (communication of the defamation to a third party who understands it)
• damage to plaintiff’s reputation
• falsity of defamatory langauge
• fault on part of defendant

public office must prove actual malice: knowledge that the statement was false or reckless disregard as to whether it was false

private people have to prove negligence if the statement involves a matter of public concern.

Question 52

Libel

Answer 52

defamation embodied in permanent form- often a written or printed publication of defamatory language. Don’t have to prove special damages and general damages are presumed.

Question 53

Slander

Answer 53

Spoken defamation. plaintiff must prove special damages unless it is slander per se:

• adversely reflect on plaintiff’s business or profession
• state that plaintiff has committed a serious crime
• imputed that plaintiff engaged in serious sexual misconduct
• state that plaintiff has a loathsome disease

Question 54

Defenses to defamation

Answer 54

Truth
Privilege- between spouses, remarks in judicial proceedings, federal executive officials

Mitigating factors considered by the jury in relation to damages

Question 55

Appropriation of plaintiff’s picture or name

Answer 55

Invasion of privacy proximately caused by defendant’s conduct.

Unauthorized use of plaintiff’s picture or name for defendant’s commercial advantage.

Don’t have to plead and prove special damages. Emotional distress and mental anguish sufficient damages.

Question 56

Intrusion on plaintiff’s affairs or seclusion

Answer 56

Invasion of privacy proximately caused by defendant’s conduct.

Cannot eavesdrop, spy, intercept phone calls, or electronic communications. Act must be highly offensive to a reasonable person. The thing that was intruded on must be private.

Don’t have to plead and prove special damages. Emotional distress and mental anguish sufficient damages.

Question 57

False light

Answer 57

Invasion of privacy proximately caused by defendant’s conduct.

One attributes to plaintiff views they do not hold or actions they did not take. Must be highly offensive to a reasonable person. Defendant must circulate the statement to the public at large.

Don’t have to plead and prove special damages. Emotional distress and mental anguish sufficient damages.

Question 58

Public disclosure of private facts

Answer 58

Invasion of privacy proximately caused by defendant’s conduct.

Public disclosure of private information that is highly offensive to a reasonable person of ordinary sensibilities.

Don’t have to plead and prove special damages. Emotional distress and mental anguish sufficient damages.

Question 59

Misrepresentation (fraud, deceit)

Answer 59

• misrepresentation of a material past or present fact
• scienter (defendant knew or believed statement was false or that there was no basis for the statement)
• intent to induce plaintiff to act or refrain from acting in reliance on the misrepresentation
• causation (actual reliance)
• justifiable reliance
• damages (plaintiff suffers actual pecuniary loss)

No defneses.

Question 60

negligent misrepresentation

Answer 60

• misrepresentation by defendant in a business or professional capacity
• breach of duty toward particular plaintiff
• causation
• justifiable reliance
• damages

Question 61

interference with business relations

Answer 61

• existence of valid contractual relationship between plaintiff and third party or valid business expectancy of the plaintiff
• defendant’s knowledge of the relationship or expectancy
• intentional interference by the defendant inducing a breach or termination of the relationship or expectancy
• damages

Defendant’s conduct may be privileged if it is a proper attempt to obtain business for itself or protect itself.