Torts

Question 1

MED

*SPECIFIC INTENT IN INTENTIONAL TORTS

Answer 1

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

The actor need NOT intend the specific injury that results from her actions to be liable for an intentional tort (e.g., Defendant punches Plaintiff in the shoulder breaking Plaintiff’s arm - it is irrelevant whether Defendant intended to break Plaintiff’s arm, only that Defendant intended to cause the contact that resulted in injury).

Question 2

MED

*GENERAL INTENT IN INTENTIONAL TORTS

Answer 2

An actor has general intent when the actor knows that the consequence is substantially certain to occur. The actor need NOT intend the specific injury that results from her actions to be liable for an intentional tort (e.g., Defendant punches Plaintiff in the shoulder breaking Plaintiff’s arm - it is irrelevant whether Defendant intended to break Plaintiff’s arm, only that Defendant intended to cause the contact that resulted in injury).

Question 3

MED

*BATTERY (4)

Answer 3

A battery occurs when the defendant:

1. Causes or is a substantial factor in bringing about;
2. Harmful or offensive contact;
3. To the plaintiff’s person; AND
4. Has specific or general intent.

Question 4

MED

*CONSENT AS A DEFENSE TO INTENTIONAL TORTS

Answer 4

The plaintiff’s consent (express or implied) to the defendant’s conduct is a defense to intentional torts if:

1. The consent was valid (e.g., no fraud, incapacity, etc.); AND
2. The defendant’s conduct remained within the boundaries of the plaintiff’s consent (e.g., cannot use a knife in a boxing match).

Question 5

HIGH

**NEGLIGENCE ELEMENTS (4)

Answer 5

The elements of the prima facie case for negligence are as follows:

1. The defendant owed a duty to the plaintiff to conform to a specific standard of care;
2. The defendant breached that duty;
3. The breach was the actual and proximate cause of the plaintiff’s injuries; AND
4. The plaintiff sustained actual damages or loss.

Question 6

MED

*AFFIRMATIVE DUTY TO ACT (4)

Answer 6

In general, there is NO affirmative duty to act affirmatively or help others.

However, a duty to act affirmatively will arise if the defendant:

1. Places the plaintiff in danger;
2. Has a special relationship with the plaintiff (e.g., common carrier/passenger, innkeeper/guest, family members, etc.);
3. Has a duty to act affirmatively imposed by law; OR
4. Begins to administer aid or attempt to rescue the plaintiff.

Question 7

HIGH

**STANDARD OF CARE: THE REASONABLE PERSON

Answer 7

The default 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.

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Physical Disabilities. Particular physical disabilities may be taken into account (e.g., blindness, deafness, etc.). E.g., the standard of care for a blind person would be that of a reasonably prudent blind person under the circumstances as measured by an objective standard

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

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

NOTE. The reasonable person standard is the default standard of care. It should be applied unless a special standard of care applies (e.g., children, professionals, physicians, landowners, negligence per se, etc.).

Question 8

MED

*STANDARD OF CARE: CHILDREN

Answer 8

Children are 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, the court will not take the child’s age into account (i.e., the child will be held to an “adult” standard).

Question 9

MED

*STANDARD OF CARE: PROFESSIONALS

Answer 9

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 10

MED

*STANDARD OF CARE: PHYSICIANS

Consent

Answer 10

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.

This duty is 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 11

MED

*PSYCHOTHERAPISTS’ DUTY TO WARN

Answer 11

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 12

HIGH

**NEGLIGENCE PER SE

Answer 12

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:

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

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

NOTE. If a statute is given to you in the fact pattern of a torts essay question, you MUST discuss negligence per se as the applicable standard of care

Question 13

MED

*RES IPSA LOQUITUR

Answer 13

Res ipsa loquitur (“the thing speaks for itself”) is 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.

In order for res ipsa loquitur to apply, the plaintiff must show that the accident resulting in the harm was:

1. Of a kind that ordinarily does not occur in the absence of negligence; AND
2. Caused by an agent or instrumentality within the defendant’s exclusive control.

Question 14

HIGH

**ACTUAL CAUSE

Answer 14

In order to prove negligence, the plaintiff must show that the defendant’s conduct was both the actual and proximate cause of the plaintiff’s injury.

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

Substantial Factor Test. However, if traditional “but for” causation cannot be shown, most courts are willing to implement a “substantial factor” test. Under a substantial factor test, actual cause can be established if the defendant’s breach was a substantial factor in bringing about the plaintiff’s harm

Question 15

HIGH

**PROXIMATE CAUSE

Answer 15

In order to prove negligence, the plaintiff must show that the defendant’s conduct was both the actual and proximate cause of the plaintiff’s injury.

To prove proximate cause, the plaintiff must show that her injury was a foreseeable result of the defendant’s conduct.

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

Question 16

HIGH

**EGGSHELL PLAINTIFF RULE

Answer 16

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 17

HIGH

**RESPONDEAT SUPERIOR

Answer 17

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

1. An employer-employee relationship exists (not an independent contractor relationship); AND
2. The employee’s commission of the tort occurs within the scope of employment.

Question 18

HIGH

**RESPONDEAT SUPERIOR: SCOPE OF EMPLOYMENT (4)

Answer 18

Activity is within the scope of employment when the employee’s conduct is of the same general nature as that authorized, or incidental to the conduct authorized by the employer.

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

1. A function for which the employee was hired to perform;
2. Within the employer’s authorized time and space limits;
3. Conducted to serve the employer; AND
4. Foreseeable to the employer.

Question 19

MED

*BUSINESS PARTNERS

Answer 19

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 20

MED

*NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS [NIED]: ZONE OF DANGER (3)

Answer 20

The plaintiff can recover for NIED if:

1. The defendant negligently caused a threat of physical impact;
2. The plaintiff was within the “zone of danger” of the threatened physical impact; AND
3. The threat of physical impact caused emotional distress.

Question 21

MED

*NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED): BYSTANDER RECOVERY (4)

Answer 21

The plaintiff bystander can recover for NIED if:

1. The defendant negligently inflicted bodily injury to another;
2. The plaintiff is closely related to the person injured by the defendant;
3. The plaintiff was present at the scene of the injury; AND
4. The plaintiff personally observed the injury.

Some jurisdictions also require that the plaintiff manifest physical symptoms after witnessing the injury.

Question 22

MED

*NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED): SPECIAL RELATIONSHIP

Answer 22

The plaintiff can recover for NIED in certain circumstances where a pre-existing relationship exists between the defendant and plaintiff. This commonly arises when:

1. The defendant negligently mishandles a corpse; OR
2. The defendant negligently provides false medical information (e.g., healthy plaintiff is told that she has terminal cancer).

Question 23

MED

*JOINT AND SEVERAL LIABILITY

Answer 23

When 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. Thus, if a plaintiff wins a money judgment against jointly and severally liable defendants, the plaintiff may collect the full value of the judgment from any one of them.

Question 24

MED

*CONTRIBUTION ACTION

Answer 24

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 25

MED

*ALTERNATIVE LIABILITY

Answer 25

If a plaintiff cannot identify with specificity which among multiple defendant’s 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 26

LOW

INDEMNIFICATION

Answer 26

In torts, indemnification usually arises in situations involving vicarious liability or strict liability. Indemnification allows a passive tortfeasor who was forced to pay damages to recover a complete reimbursement from an active tortfeasor.

For Example: An employer is held vicariously liable for an employee’s negligence under respondeat superior and is required to pay the full amount of damages. The employer could seek indemnification from the employee because the employee was the active tortfeasor (the employee actively committed the negligent act), and the employer was the passive tortfeasor (the employer is only liable vicariously)

Question 27

MED

*CONTRIBUTORY NEGLIGENCE + Exceptions

Answer 27

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

1. Was engaged in wanton and willful misconduct; OR
2. Had the last clear chance to avoid injuring the plaintiff, but failed to do so.

Contributory negligence is NOT a valid defense for intentional torts

Question 28

HIGH

**COMPARATIVE FAULT: PURE COMPARATIVE NEGLIGENCE

Answer 28

Under pure comparative negligence, the plaintiff’s recovery is limited by the percentage of fault the jury attributes to the plaintiff’s own negligence (e.g., if the jury finds the plaintiff is 95% at fault, the plaintiff can recover 5% of her damages).

Question 29

HIGH

**COMPARATIVE FAULT: MODIFIED COMPARATIVE NEGLIGENCE

Answer 29

Under modified comparative negligence, the 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 modified comparative negligence jurisdictions, the plaintiff’s recovery is completely barred if the plaintiff and defendant are equally at fault.

Question 30

HIGH

**THREE CATEGORIES OF STRICT LIABILITY

Answer 30

Under strict liability, a defendant will be liable for damages REGARDLESS of how careful they were (i.e., negligence is NOT required to be held liable). Generally, there are three categories of strict liability:

1. Animals;
2. Abnormally dangerous activities; AND
3. Defective products.

Question 31

HIGH

**STRICT LIABILITY: PRODUCTS LIABILITY (3)

Answer 31

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

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

Question 32

HIGH

**PRODUCTS LIABILITY: MANUFACTURE DEFECTS (2)

Answer 32

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

1. Deviated from its intended design; AND
2. Fails to conform to the manufacturer’s own design.

Question 33

HIGH

**PRODUCTS LIABILITY: DESIGN DEFECTS (2 tests)

Answer 33

There are two tests for a defect in design:

1. Under the consumer expectation test, the plaintiff must show that the product is less safe than the ordinary consumer would expect.
2. 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 34

HIGH

**PRODUCTS LIABILITY: FAILURE TO WARN (3)

Answer 34

A failure to warn defect requires the plaintiff to show:

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 35

HIGH

**SCOPE OF PRODUCTS LIABILITY

Answer 35

Any person foreseeably injured by a defective product (e.g., purchasers, other users, bystanders, etc.) may pursue a products liability claim.

However, a strict liability claim under products liability may only be brought against a merchant who is in the chain of distribution (e.g., manufacturer ? wholesaler ? retailer).