Torts

Question 1

Intro to negligence MEEs

Answer 1

In any negligence action, a plaintiff must show that the defendant owed the plaintiff a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others, that the defendant’s conduct fell below the applicable standard of care, and that the defendant’s conduct was both the cause in fact and the proximate cause of the plaintiff’s injuries.

Question 2

Claims against children

Answer 2

A child owes the duty of care of a hypothetical child of similar age, intelligence, and experience, acting under similar circumstances

Exceptions:

• adult activity
• tender years

Question 3

Adult activity exception to child liability

Answer 3

If the child is engaged in adult activity, i.e. one which is normally undertaken only by adults, and for which adult qualifications are required (e.g. driving a car/tractor/motorcycle/motor scooter, snowmobile, etc.) then the child will be held to the same standard of care as a reasonably prudent adult engaged in such activity

Question 4

Tender years exception to child liability

Answer 4

Some states recognize the tender-years doctrine in which a child less than seven years of age cannot be found negligent.

Question 5

Premises liability

Answer 5

The standard of care owed depends on the legal status of the plaintiff.

Different statuses:

• undiscovered trespasser
• discovered trespasser
• licensee
• invitee

Question 6

Liability to an undiscovered trespasser

Answer 6

An undiscovered trespasser is one who comes into the land without permission or privilege, who the possessor of the premises does not know about.

Undiscovered trespassers are not owed any duty of care.

Question 7

Liability to a discovered trespasser

Answer 7

A discovered trespasser is one who the possessor of the premises knows or should know of.

The possessor must warn or make safe any unreasonably dangerous concealed artificial conditions.

Question 8

Attractive nuisance

Answer 8

The possessor of the premises is liable if

• he knows or has reason to know that children are likely to trespass
• the condition is one which he knows or should know involves an unreasonable risk of death or serious bodily harm,
• the children because of their youth do not discover the condition or realize the risk involved
• the burden of eliminating the danger is slight compared to the risk involved and the benefit to the possessor
• the possessor fails to exercise reasonable care to protect the children

This doctrine applies only if the child is engaging in an activity appropriate for children, i.e. not an adult activity

Question 9

Liability to a licensee

Answer 9

A licensee is a social guest who has permission to enter the land but does not confer an economic benefit on the possessor of the land.

The landowner must warn or make safe all concealed dangers (artificial or not, whether or not they are unreasonably dangerous) that the landowner knows of.

NCBE answer: a landowner owes the licensee a duty to “reveal hidden dangers of which the landowner knows or has reason to know and which the entrant is unlikely to discover”

Question 10

Liability to invitees

Answer 10

An invitee is one who enters either to confer an economic benefit (e.g. customers or employees at a store), or enters land that is open to the public at large (e.g. a church, museum, etc.).

The landowner must warn or make safe all dangers that the landowner knows or should know of. The premises possessor has a duty to inspect to discover unknown dangers.

Question 11

Negligence per se

Answer 11

This doctrine is applicable when there is a statute that sets the standard of care.

A plaintiff can sue under a theory of negligence per se when the plaintiff can show three elements:

• the defendant violated a statute without excuse
• the plaintiff was in the class of people that the statute was trying to protect, and
• the plaintiff received the injury that the statute was trying to prevent.

If a plaintiff can establish these elements, this is conclusive proof of duty and breach, but the plaintiff still must prove causation and damages.

Question 12

Res ipsa loquitur

Answer 12

The res ipsa loquitur doctrine allows the jury to infer negligence when the event is of a kind which ordinarily does not occur in the absence of negligence, other responsible causes are sufficiently eliminated by the evidence, and the indicated negligence is within the scope of the defendant’s duty to the plaintiff.

Question 13

Eggshell skull rule

Answer 13

A defendant takes his victim as he finds him. The plaintiff with an “eggshell skull” who suffers damages greatly in excess of those that a normal victim would suffer is entitled to recover fully for his injuries.

Question 14

Negligent infliction of emotional distress

Answer 14

This may be applicable when the defendant is negligent and the plaintiff has not sustained any actual physical trauma to his body.

There generally must be a physical manifestation of emotional distress (e.g. a heart attack).

Some jurisdictions only allow recovery if the plaintiff was within the zone of danger.

Others allow it when the plaintiff was closely related to the victim, was located near the scene of the accident, and suffered shock resulting from “the sensory and contemporaneous observance of the accident.”

In almost all jurisdictions, mere receipt of news relating to an accident does not suffice.

Question 15

Pure comparative negligence

Answer 15

Majority rule.

The trier of fact (i.e. the judge or jury) apportions fault among the parties. The amount of damages apportioned to the plaintiff because of the plaintiff’s negligence is subtracted from the total damages awarded by the jury.

Question 16

Modified comparative negligence

Answer 16

Minority rule.

Apportionment of damages is not available unless the jury concludes that the plaintiff is less than 50% at fault.

In these jurisdictions, if the jury concludes that there plaintiff was 50% or more at fault, he cannot recover.

Question 17

Contributory negligence

Answer 17

Common law doctrine.

If the jury finds that the plaintiff’s negligence contributed to his injuries to any degree, the plaintiff cannot recover.

Most states have abandoned this doctrine.

Question 18

Battery

Answer 18

Not heavily tested.

An act with intent to cause a harmful or offensive contact or imminent apprehension of that contact and a harmful or offensive contact directly or indirectly results.

Note that the primary difference between an assault and a battery is the harm suffered. For an assault, the plaintiff suffers imminent apprehension.

Question 19

False imprisonment

Answer 19

Not heavily tested.

An act with intent to confine or restrain a person to a bounded area, actual confinement occurs, and the plaintiff knows of the confinement or is hurt by the confinement.

Question 20

Consent

Answer 20

Consent is a defense to an intentional torts. Consent can be express or implied.

Question 21

Vicarious liability

Answer 21

Respondent superior: in employer/employee relationships, employers are vicariously liable for torts or their employees if the torts are committed within the scope of employment.

Intentional torts are usually outside the scope of employment unless they were done for the purpose of serving the employer, or if they were foreseeable.

Question 22

Direct liability

Answer 22

The employer can be directly liable for his own negligence if, for example, he fails to supervise employees or otherwise acts negligently in hiring, firing, or entrustment.

Question 23

Indemnification

Answer 23

Indemnification is full reimbursement for damages paid to the plaintiff. This is when one defendant can seek 100% of the damages from the other defendant. This usually occurs when the paying defendant was not at fault in causing the plaintiff’s injuries, and the non-paying defendant was at fault.

For example, an employee who is liable based solely on the principle of respondeat superior may seek indemnification from the employee who was negligent.

Question 24

Strict products liability

Answer 24

When strict products liability is tested, you are expected to know that the defendant must be a merchant rather than a casual seller of goods.

Further, under a manufacturing defect theory, the product must be defective from the time it left the manufacturer’s hands. All commercial sellers (including the store that sold the product) are liable for manufacturing defects.

Question 25

Rule statement: battery

Answer 25

In a battery action, a plaintiff must show that the defendant caused a harmful or offensive contact with the plaintiff’s person with the intent to cause such contact or the apprehension of such contact. A defendant’s contact is intentional if he acts with the purpose of bringing about the contact or engages in an action knowing that contact is substantially certain to occur. In most jurisdictions, the defendant need only intend to cause contact, not that the contact be harmful or offensive (often called the single-intent rule).

Question 26

Rule statement: negligence

Answer 26

In a negligence action, a plaintiff must show that the defendant owed a duty to the plaintiff, that the defendant breached that duty, that the defendant caused the plaintiff’s injuries, and that damages exist. Generally, the standard of care imposed on a defendant is that of a reasonably prudent person under similar circumstances. A person is required to exercise the care that a reasonable person under the same circumstances would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person. In determining whether a specific precaution was warranted, a jury must weigh the probability and gravity of the injury against the burden of taking such precautions.

Question 27

Rule statement: vicarious liability

Answer 27

Vicarious liability is a form of strict liability in which one person is liable for the negligent actions of another. An employer is liable for the tortious conduct of an employee that is within the scope of employment.

Question 28

Rule statement: Employer negligence

Answer 28

A person is required to exercise the care that a reasonable person under the same circumstances would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person. The modern trend is to perform a cost-benefit analysis to determine whether the defendant has acted in accordance with the standard of care. This analysis considers

1) the foreseeable likelihood that the defendant’s conduct would cause harm,
2) the foreseeable severity of any resulting harm, AND
3) the defendant’s burden in avoiding the harm.

Evidence of custom in an industry may be offered to establish the standard of care, but such evidence is not conclusive.

Question 29

Rule statement: eggshell skull rule

Answer 29

The defendant is liable for the full extent of the plaintiff’s injuries due to the plaintiff’s preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable.

Question 30

Rule statement: physician negligence

Answer 30

A prima facie case of negligence requires proof of a duty, breach of that duty, causation, and damages. In general, a duty of care is owed to all foreseeable persons who may foreseeably be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances. A physician is held to a national standard and is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner.

Question 31

Rule statement: strict products liability (manufacturing defect)

Answer 31

Under strict products liability, the manufacturer, retailer, or other distributor of a defective product may be liable for any harm caused by the product. The plaintiff must prove:

1) the product was defective (in manufacture, design, or failure to warn),
2) the defect existed at the time the product left the defendant’s control, and
3) the defect caused the plaintiff’s injuries when the product was used in an intended or reasonably foreseeable way.

A manufacturing defect is 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 own specifications.

Question 32

Rule statement: implied warranty of merchantability

Answer 32

The implied warranty of merchantability warrants that the product being sold is generally acceptable and reasonably fit for the ordinary purposes for which it is being sold. Any product that fails to live up to this warranty constitutes a breach, regardless of any fault by the defendant.

Question 33

Rule statement: breach of warranty

Answer 33

The implied warranty of merchantability warrants that the product being sold is generally acceptable and reasonably fit for the ordinary purposes for which it is being sold.

Any product that fails to live up to this warranty constituted a breach, regardless of any fault of the defendant.

Question 34

Rule statement: theories of products liability

Answer 34

The burden is on the plaintiff to prove that the specific defendant caused the plaintiff’s injuries. There are several theories of liability under which a plaintiff can recover when there are multiple tortfeasors or multiple possible causes for the plaintiff’s harm. The market share liability doctrine, the alternative causation doctrine, and the concert of action doctrine.

Question 35

Rule statement: market share liability doctrine

Answer 35

Under the market share liability doctrine, if the plaintiff’s injuries are caused by a fungible product and it is impossible to identify which defendant placed the harmful product into the market, the jury can apportion liability based on each defendant’s share of the market.

Question 36

Rule statement: alternative causation doctrine

Answer 36

Under the alternative causation doctrine, if the plaintiff’s harm was caused by i) one of a small number of defendants, ii) each of whose conduct was tortious, and iii) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff’s harm.

Question 37

Who is liable under strict products liability?

Answer 37

Strict products liability actions can only be maintained against commercial sellers who are in the business of selling or otherwise distributing the type of defective product that harmed the plaintiff.

Someone who merely used a defective product to provide a service is not subject to strict products liability for harm to persons or property caused by the defect.

Question 38

Burden of proof for IIED

Answer 38

For intentional infliction of emotional distress, the plaintiff must prove that the defendant intentionally or recklessly caused the plaintiff severe emotional distress by acting in an extreme and outrageous manner.

IIED claims allow plaintiffs to recover for stand-alone emotional harm without bodily harm.