Torts

Question 1

Res Ipsa loquitur, 3 elements

Answer 1

Traditional res ipsa loquitur: negligence is inferred if

(1) the plaintiff’s harm would not normally occur unless someone was negligent,
(2) the defendant had exclusive control over the thing that caused the harm, and (3) the plaintiff did nothing to cause the harm.

Question 2

Trespass to chattels v. Conversion

Answer 2

Trespass to chattels
Minor intentional interference with plaintiff’s right to control chattel
Liable for actual damages—eg, cost of repairs, loss of use

Conversion: Substantial intentional interference with plaintiff’s right to control chattel
Liable for fair market value of chattel at time of conversion

Question 3

Type of D to bring SL product claim

also the kind not responsible

Answer 3

commercial suppliers or sellers—i.e., those in the business of manufacturing, selling, or otherwise distributing products of the type that harmed the plaintiff. Anyone downstream of defect who is in supply chain.
However, NOT service providers are not subject to strict products liability.

Question 4

describe negligence in one sentence

Answer 4

A defendant is liable for negligence if he/she breaches a duty of care owed to the plaintiff and causes the plaintiff harm.

Question 5

describe assumption of risk (not elements)

Answer 5

Under the common law, assumption of the risk is a complete defense to negligence when the plaintiff voluntarily accepts a known risk of harm.

Question 6

When and what type of liability when keeping wild animal?

Answer 6

Strictly liable for harm that (1) is caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal or (2) directly results from the wild animal’s abnormally dangerous characteristics

Question 7

how does several liability work

Answer 7

When multiple defendants cause the plaintiff indivisible harm, the plaintiff can only recover from each defendant the portion of damages that corresponds to that defendant’s proportionate share of fault

Question 8

standard of mens rea for defamation: public figure vs private

Answer 8

Public figure can recover for defamation only if the P proves that the defendant made a false statement about the plaintiff with actual malice—i.e., with knowledge or reckless disregard of the statement’s falsity. PRIVATE figure only needs to prove negligence.

Question 9

assault elements and remedy

Answer 9

1. intent to cause imminent apprehension of contact
2. actually does cause above
   REMEDY: don’t need to show harm, can get nominal damages

Question 10

describe transferred intent

Answer 10

an actor’s intent to commit an intentional tort against one person transfers to the actor’s commission of (1) a different intentional tort against that same person, (2) the intended tort against a different person, or (3) a different intentional tort against a different person.

Question 11

what duty to known or anticipated trespassers?

Answer 11

owe a limited duty to known or anticipated trespassers to
1. warn the trespasser of hidden, artificial (i.e., man-made) conditions that are known to the land possessor but unlikely to be discovered by the trespasser and

2. use reasonable care while conducting activities on their land.

Question 12

describe provate nuisance

Answer 12

Liability for private nuisance arises when a defendant’s interference with the use and enjoyment of the plaintiff’s property is both:

substantial – offensive, annoying, or intolerable to a normal person in the community and
unreasonable – the severity of the plaintiff’s harm outweighs the utility of the defendant’s conduct

Question 13

describe liability for domestic animal attacks

Answer 13

domestic animal (e.g., rooster) is generally not strictly liable (i.e., liable without proof of fault) for any physical harm caused by the animal.  
However, strict liability (even If rooster kept in responsible cage) will be imposed when:

the owner knew or had reason to know about the domestic animal’s dangerous propensities (i.e., behavior uncommon for its species) and

the plaintiff’s harm arose from those dangerous propensities.

Question 14

describe third party recovery for IIED

Answer 14

If extreme and outrageous conduct has harmed a third party, D may be liable for IIED if (1) the plaintiff contemporaneously perceived that conduct, (2) the plaintiff was closely related to the third party, and (3) the defendant knew of the plaintiff’s presence and that relationship.

Question 15

short description of proximate cause

Answer 15

when the plaintiff’s harm was a reasonably foreseeable consequence of the defendant’s conduct.

Question 16

majority (Cardozo) view on duty of care

minority (Andrews view)

Answer 16

Cardozo–not duty of care to unforeseeable P. ie, persons within zone of foreseeable harm)
Andrews: duty owed to anyone on earth who might be harmed by D’s negligence

Question 17

modified omparitive negligence

Answer 17

modified comparative-negligence jurisdiction: the plaintiff or the defendant is barred from recovery if his/her percentage of fault exceeds 50%. Otherwise, normal % recovery is in effect.

Question 18

NIED 3 theories of recovery

Answer 18

(1) zone of danger, severe emo distress caused when D’s negligence placed P in danger of immediate bodily harm
(2) bystander, and
(3) special situation.

Question 19

how to decide the reaonablness of shopkeeper’s detention

Answer 19

based on the totality of the circumstances, including whether the defendant (1) used greater force than was necessary to detain the plaintiff or (2) caused the plaintiff to suffer unnecessary humiliation, embarrassment, or discomfort.

Question 20

what does a guest statute say re: automobiles

Answer 20

only duty that automobile drivers owe to their guests is to refrain from gross or wanton and willful (i.e., reckless) misconduct.

Question 21

attractive nuisance: what makes one

Answer 21

1. manmade condition
2. landowner knows kids likely to trespass
3. know/should that poses unreasonable risk of harm to kids
4. kid of trespasser’s age cannot reas discover risk
5. Risk outweighs benefit of continuing the condition (or burden of stopping)

Question 22

attractive nuisance: duty owed

Answer 22

If is an attractive nuisance, land possessors have a duty to exercise reasonable care to protect child trespassers. If breaches, then liable for negligence

Question 23

minority vs majority approach re: negligence per se and statute violation

Answer 23

Negligence per se if D violated statute, which caused type of harm statute was meant to prevent, to the class of persons it as mean to protect
Majority: this is a conclusive presumption of negligence
Minority: rebuttable presumption of negligence

Question 24

describe product liability simple and 2 elements

Answer 24

Commercial seller of a defective product may be held strictly liable for any harm that the product causes a foreseeable plaintiff—i.e., a person who is reasonably likely to suffer harm because of the defect. To recover under a products liability claim, the plaintiff must prove that:

1. the defective product caused the plaintiff’s injuries when it was used in an intended or reasonably foreseeable way and
2. the defect existed at the time the product left the commercial seller’s control.

Question 25

how does respondent superior work with battery

Answer 25

Despite respondeat superior, an employer is generally not liable for an intentional tort (e.g., battery) committed by its employee because that conduct typically falls outside the scope of employment. However, such liability will arise in two instances:

1. When the use of reasonable force is inherent in the employee’s job and the employee acts in the course of his/her work
2. When the employee is authorized by the employer to act on its behalf and the employee’s position provides an opportunity to commit an intentional tort

Question 26

MODERN duty to trespassers

Answer 26

all entrants: reasonable care EXCEPT flagrant tresspassers (i.e. homeless squatting in building for years)

1. not act in intentional, willful, or wanton (ie, tortious) manner that causes physical harm AND
2. exercise reasonable care to flagrant trespassers in peril

Question 27

What does the bar exam mean by TRADITIONAL when the P has contributed to their own injury

Answer 27

Denotes the old common law rule that any P negligence is a complete bar to recovery (with some exceptions like last clear chance)

Question 28

physician duty of disclosure: when can a patient recover?

Answer 28

Physicians have a duty to disclose the risks of a medical procedure or treatment to a patient in advance so that the patient can give informed consent to the procedure or treatment. In most jurisdictions, the required level of disclosure is governed by custom among physicians.* Failure to make the required disclosure breaches the standard of care owed by a physician to his/her patient and subjects the physician to negligence liability IF:

1. the failure to disclose caused the patient to consent to the treatment or procedure (i.e., the patient would not have done so had the risk been disclosed) and
2. the undisclosed risk materialized and caused the patient physical harm.**

Question 29

elements of IIED claim from a third party (witness)

Answer 29

A defendant whose extreme and outrageous conduct has harmed a third party may be liable for intentional infliction of emotional distress if

(1) the plaintiff contemporaneously perceived that conduct,
(2) the plaintiff was closely related to the third party, and
(3) the defendant knew of the plaintiff’s presence and that relationship.

Question 30

four types of invasion of privacy tort

Answer 30

Intrusion upon seclusion
Highly offensive & intentional intrusion on plaintiff’s solitude, seclusion, or private affairs

Appropriation of name or likeness
Unauthorized use of plaintiff’s name or likeness for personal benefit—eg, commercial advantage

Private facts
Publicity given to highly offensive & private matter concerning plaintiff that is not of legitimate public concern & results in damages

False light
Publicity given to false information about plaintiff with actual malice that places him/her in highly offensive & false light & results in damages

Question 31

When does a person have an affirmative duty to help another?

Answer 31

Assumption of dutyDefendant who voluntarily aids or rescues another has duty to use reasonable care when rendering aid or performing rescue

Creation of risk
Defendant whose conduct creates foreseeable risk of harm or places another in peril has duty to exercise reasonable care to prevent further harm by rendering care or aid

By contract
Duty to use care when performing contractual obligations

By authority
Duty to exercise reasonable control over third party whom defendant has actual ability & authority to control (parent, doctor, etc)

By relationship
Duty to protect, aid, or assist plaintiff with whom defendant shares unique relationship business proprietor with patron, common carrier with passenger, innkeeper with guest, employer with employee, parent with child

By statute
Statute imposes obligation to act for another’s protection

Land possessor
Duty to mitigate risks posed by natural or artificial conditions on land

Question 32

what does it do to damages calculations if P is negligent re: situation before the negligence of the D occurred?

Answer 32

Negligence claim requires proof of physical harm (i.e., personal injury or property damage) as a result of the defendant’s negligent conduct. The factors affect compensatory damage calculstiions:

1. the initial physical harm caused by the defendant’s negligent act
2. any subsequent harm (physical, economic, or emotional) that is traceable to that initial harm and
3. any steps taken by the plaintiff to mitigate that initial harm.
   NOT any acts by P re: the injury, even if they contributed to injury

Question 33

define strict liability

Answer 33

liability without proof of fault (no intent to negligence, reckless, etc)

Question 34

when IS a principal liable for the negligence of an independent Ker

Answer 34

employers are not liable for the torts of true independent contractors, except where

(i) an employer is negligent in selecting an independent contractor,
(ii) the function is inherently dangerous,
(iii) the employer is a storekeeper or operator of premises open to the public and has the duty to keep the premises in a reasonably safe condition, or
(iv) as in this case, the function is non-delegable.