Torts

Question 1

Prima facie case for. intentional tort

Answer 1

1) An act that is a volitional movement by the defendant
2) Intent must be either specific (acted intending to bring about certain consequences) or general (acting w with substantial certainty these consequences. will result. Does not need to intend the injury, though
3) Causation (result must be legally caused by D’s act

Question 2

What is the doctrine of transferred intent?

Answer 2

Applies when the D intends to commit a tort against one person but instead (i) commits a DIFFERENT tort against the same person, (ii) commits the same intended tort against another person, or (iii) commits a different tort against a different person.

Question 3

With what torts may transferred intent be invoked?

Answer 3

Only if both the tort intended and the tort that resulted were one of the following:
a) assault
b) battery
c) false imprisonment
d) trespass to land
e) trespass to chattel

Question 4

Is incapacity or incompetence a good defense against the intent requirement in tort law?

Answer 4

No. Everyone is “capable” of intent

Question 5

Elements of battery

Answer 5

a) harmful of offensive contact
b) to the plaintiff’s person
c) intent and
d) causation

Question 6

Must contact be direct and to the plaintiff’s actual body to constitute harmful or offensive contact?

Answer 6

No, it can be indirect, e.g., setting a trap, and it can be anything connected to the plaintiff’s person, including clothing or a purse.

Question 7

Are damages required to recover under battery?

Answer 7

No, plaintiff can recover nominal damages even if actual damages are not proved.

Question 8

Elements of assault

Answer 8

1) an act by D creating reasonable apprehension in plaintiff
2) of immediate harmful or offensive contact
3) intent and
4) causation

Question 9

How must apprehension be shown in assault?

Answer 9

The P must be aware of the threat from the D’s act, even if they don’t know their identity

Question 10

Elements of false imprisonment tort

Answer 10

1) an act or omission on the part of D that confines or restrains P to a bounded area
2) intent and
3) causation

Question 11

Must P be aware of the confinement in order to constitute false imprisonment?

Answer 11

Yes, P must know of the confinement or be harmed by it

Question 12

What are the elements of the prima facie case of intentional infliction of emotional distress?

Answer 12

I) An act by D amounting to extreme and outrageous conduct
Ii) intent or recklessness
iii) Causation
iv) damages = SEVERE emotional distress

Question 13

What is the extreme and outrageous conduct required for IIED?

Answer 13

conduct that transcends all bounds of decency.

Question 14

Causation of IIED in bystander cases

Answer 14

When D causes physical harm to a third person and P suffers from it, the P may recover by showing EITHER the prima facie case elements of emotional distress OR that (i) she was present when the injury occurred, (ii) she was a close relative of the injured person, and (iii) the D knew facts I and ii.

Question 15

Prima facie case of trespass to land

Answer 15

i) physical invasion of plaintiff’s real property
ii) intent
iii) causation

Question 16

Does an intangible matter, e.g., vibrations or strong odor, constitute a physical invasion?

Answer 16

No. But P may have a case for nuisance

Question 17

Can someone with constructive possession of the land maintain a trespass to land tort?

Answer 17

Yes.

Question 18

Elements of trespass to chattels

Answer 18

(i) an act by D that interferes with P’s right of possession in a chattel
(ii) intent
(iii) causation and
(iv) damages.

Question 19

Is D’s mistaken belief that he owns the chattel a defense against trespass against chattel?

Answer 19

No.

Question 20

What are the elements of the tort of conversion?

Answer 20

(i) An act by D that interferes with P’s right of possession in a chattel
(ii) intent
(iii) causation
(iv) damages – an interference serious enough in nature or consequences to warrant that D pay the chattel’s full value

Question 21

What are the available remedies to conversion?

Answer 21

Damages = FMV at time of conversion or
Possession = replevin

Question 22

What are six defenses to intentional torts?

Answer 22

1) Consent, including apparent consent
2) Self defense
3) Defense of others
4) Defense of property
5) Privilege of arrest
6) Necessity

Question 23

Is there a duty to retreat before invoking self-defense?

Answer 23

Majority rule is there is no duty to retreat; modern trend is to impose the duty before using deadly force if this can be done safely, UNLESS THE ACTOR IS IN THEIR HOME

Question 24

Is self-defense available to the initial aggressor?

Answer 24

No, unless the other party responds to non deadly force with deadly force

Question 25

Is a reasonable mistake allowed as to the existence of danger when using the defense of self-defense?

Answer 25

Yes.

Question 26

When is the defense of others available?

Answer 26

When the actor reasonably believes that the other person could have used force to defend themselves.

Question 27

Is a reasonable mistake allowed as to the whether the other person is being attacked or has a right to defend themselves in the defense of others defense?

Answer 27

Yes, it is allowed

Question 28

When is the defense of property defense available?

Answer 28

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

Question 29

is the defenses of property available against one with a privilege?

Answer 29

No. When an actor has privilege to enter one the land of another because of necessity, recapture of chattels, etc., then that privilege will supersede the privilege of the land possessor to defend her property.

Question 30

Is mistake allowed in defense of property?

Answer 30

A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required. A mistake is NOT allowed as to whether the entrant has a privilege that supercedes defense of property

Question 31

How much force may be used in defense of property?

Answer 31

Reasonable force but NOT force causing death of serious bodily injury unless the invasion of property also entails a serious threat of bodily harm.

Question 32

Can one use force to reenter land wrongly possess?

Answer 32

At common law, yes, but now, no. There are summary proceeders such as ejectment for recovering possession of real property

Question 33

Recapture of chattel as a defense to another intentional tort, e.g., assault, battery, or trespass to chattel?

Answer 33

When another’s possession began lawfully, one may only use peaceful means to recover the chattel. Force may only be used when in hot pursuit of one who has obtained possession wrongfully, e.g., by theft

Question 34

May one use force to recapture chattel in the hands of an innocent third party?

Answer 34

No.

Question 35

When may a D enter onto land to remove chattel?

Answer 35

Privileged to enter onto the land and reclaim chattels, after first making a demand for their return (and this is true both for the land of the wrongdoer AND when the chattels are on the land of innocent party, so long as the owner gave notice.

Question 36

What if chattels are on the land of another through the owner’s fault, e.g., letting cattle wander, then is there a privilege to enter onto the land?

Answer 36

NO, they must be recovered only through the legal process.

Question 37

Is mistake allowed regarding D’s right to recapture the chattels or enter onto the land of another’s?

Answer 37

No.

Question 38

How much force may be used to recapture chattels?

Answer 38

Reasonable force not including force sufficient to cause death or serious bodily harm.

Question 39

When do private citizens have the privilege of arrest?

Answer 39

When it’s a felony: felony in fact must have been committed and the citizen must reasonably believe the person he arrests committed it.

When it’s a misdemeanor: there must be a breach of peace and committed in the arresting party’s presence

Question 40

Conditions creating privilege of a shopkeeper to detain a suspected shoplifter for investigation

Answer 40

1) there must be a reasonable belief as to fact of theft
2) the detention must be conducted in a reasonable manner and only non deadly force can be used
3) must be for a reasonable period of time and only for the purpose of making Ian investigation.

Question 41

Defense of necessity + the two types

Answer 41

A person may interfere with the real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury fro ma natural or other force and when the threatened injury is substantially more serious than the invasionn that is undertaken to avert it.

Two types = public and private

Question 42

What is public necessity

Answer 42

When the act is for public good.

Question 43

What is private necessity

Answer 43

When the act is solely to benefit a limited number of people.In that case, the actor must pay for any injury he causes (unless it was to benefit the property owner).

Question 44

What are the elements of common law defamation?

Answer 44

1) defamatory language
2) of or concerning the plaintiff
3) publication thereof by defendant to a third person and
4) damage to the plaintiff’s reputationn

Question 45

What are the constitutional requirements of defamation?

Answer 45

in addition to the common law elements, if the defamation involves a matter of public concern, then the constitution requires the plaintiff to also prove
1) falsity of the defamatory language and
2) fault on the part of the D.

Question 46

Can a deceased person be defamed?

Answer 46

No. Defamation of a deceased person is not actionable.

Question 47

What is the requisite intent for defamation?

Answer 47

The intent to publish, aka, share with some third party, not the in intent to defame.

Question 48

Is there defamation when a defamatory statement about plaintiff is made only to the plaintiff?

Answer 48

No, because there’s no publication.

Question 49

Is one who repeats a defamation liable to the same extent as the primary publisher, even if they make it clear they don’t believe the defamation?

Answer 49

Yes.

Question 50

What are the damages required to be proved in a defamation suit

Answer 50

It depends one the type of defamation.

If it’s libel, written or printed publication of defamatory language, then plaintiff does not need to prove special damages and general damages are presumed.
If it’s slander, spoken defamation, then the plaintiff must prove special damages, UNLESS it falls within slander per se categories.

Question 51

What are the slander per se categories?

Answer 51

Statements that
1) adversely reflect on one’s conduct in a business or profession
2) one has a loathsome disease
3) one is for was guilty of a crime involving moral turpitude (most common law crimes)
4) a woman is unchaste

Question 52

When the defamation involves a matter of public concern, what else must the P prove?

Answer 52

1) falsity of the statement and
2) fault on the part of the defendant.

Question 53

What is the level of fault required on the part of the defendant

Answer 53

It depends on the status of the plaintiff. If they are a public figure, then they must prove actual malice. If they are a private person, then must prove negligence if matter of public concern.

Question 54

What is actual malice in the constitutional analysis for defamation?

Answer 54

knowledge that the statement was false or reckless disregard as to whether it was false.

Question 55

In constitutional defamation cases, where the P is a private person and the D was negligent, what damages are recoverable? What about when actual malice found?

Answer 55

Only “actual injury” damages if just negligence. If actual malice, then damages are presumed and punitive damages allowed.

Question 56

What constitutes actual injury?

Answer 56

Not just economic injury but also damages for impairment to reputation and personal humiliation, so long as the plaintiff presents evidence of such damages.

Question 57

What are four defenses to defamation?

Answer 57

1) Consent
2) Truth (where P does not need to prove falsity, because it’s not concerning a matter of public concern)
3) Absolute privilege –> remarks made during judicial proceedings, by legislators during proceedings (even if not related to the proceedings), by federal executive officials, in “compelled” broadcasts, and between spouses.
4) Qualified Privilege

Question 58

What are the four branches of invasion to the right of privacy?

Answer 58

1) appropriation of plaintiff’s picture or name – unauthorized use of plaintiff’s picture of name for D’s commercial advantage
2) Intrusion on plaintiff’s affairs or seclusion – the act or prying or intruding must be highly offensive to a reasonable person and the thing into which there is an intrusion must be private.
3) Publication placing the plaintiff I a false light – attributing views to Plaintiff that he does not hold and the “false light” must be highly offensive to a reasonable person
4) Public disclosure of private facts about plaintiff – public disclosure must be highly offensive to a reasonable person. May attach even if the statement is true.

Question 59

Do you have to prove special damages under the tort of invasion of the right of privacy?

Answer 59

No. Emotional distress and mental anguish are sufficient

Question 60

Is truth a defense to the tort of invasion of the right of privacy?

Answer 60

no.

Question 61

Does the right of privacy extend to family members?

Answer 61

No.

Question 62

Does the right of privacy survive past death?

Answer 62

No.

Question 63

Elements of intentional misrepresentation

Answer 63

1. Misrepresentationn of a material past or present fact
2. Scienter, ie., when D made the statement, she knew or believed it was false or that there was no basis for the statement
3. Intent to induce plaintiff to act or refrain from acting in reliance upon the misrepresentation.
4. Causation (actual reliance)
5. Justifiable reliance
6. Damages (P must suffer actual pecuniary loss)

Question 64

Negligent misrepresentation

Answer 64

1) Misrepresentation by defendant in a business or professional capacity
2) Breach of duty toward a particular plaintiff
3) Causation
4) Justifiable reliance
5) Damages
Must generally be in a commercial setting

Question 65

Interference with business relations

Answer 65

1) existence of valid contractual relationship between P and third party
2) defendant’s knowledge of the relationship or epectancy
3) Intentional innterference by D inducing a breach or termination of relationship or expectancy and
4) Damages

Interference may be privileged if D is in the same business, they used commercially acceptable means of persuasion or has a financial interest in the third party.

Question 66

Prima facie case of negligence

Answer 66

1) a duty on the part of defendant to conform to a specific standard of conduct for protection of plaintiff against unreasonable risk of injury
2) A breach of that duty
3) The breach is the actual and proximate cause of plaintiff’s injury and
4) Damage

Question 67

To whom is a duty of care owed?

Answer 67

All foreseeable plaintiffs

Question 68

When confronted with negligence questions, always ask these two initial questions:

Answer 68

1) Was the plaintiff foreseeable?
2) If so, what is the applicable standard of care

Question 69

Is a rescuer a foreseeable plaintiff?

Answer 69

Yes, but firefighters and police officers might be barred by the “firefighters rule” from recovering for injuries caused by risk of rescue

Question 70

Wrongful birth/wrongful pregnancy torts

Answer 70

Parents (not child) may recover damages for any additional medical expenses and for pain and suffering from labor. Not ordinary child-rearing expenses

Question 71

What is the basic standard of care?

Answer 71

A reasonable person. It is objective standard, i.e., one’s conduct is measured against what the average person would do.

Question 72

Child’s standard of conduct

Answer 72

Children are held to the standard of a child of like age, education, intelligence, and experience. This is a subjective test. Children under 5 usually without capacity to be negligent.

Question 73

Common carriers’ standard of conduct

Answer 73

Held to a very high degree of care, i.e., liable for slight negligence towards passengers or guests

Question 74

Bailment duties (i.e., someone loans their car to someone else)

Answer 74

Duties owed by bailee – depends on who benefits from the bailment (i) for sole benefit of the bailor, there is a low standard of care; (ii) sole benefit of bailie there is a high standard of care, and (iii) for mutual benefit, e.g., bailment for hire), there is an ordinary care standard.

Question 75

Duty owed to trespassers

Answer 75

No duty is owed to undiscovered trespassers. As to discovered or anticipated trespassers, the landowner must (1) warn of or make safe CONCEALED unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm and (2) use reasonable care in the exercise of “active operations.” No duty for natural condition or less dangerous artificial conditions.

So, landowner makes a bear trap and disguises it. Have to warn or make safe.

Question 76

Attractive nuisance doctrine

Answer 76

Court-imposed requirement that a landowner exercise ordinary care to avoid a reasonable forseeable rissk of harm to children caused by dangerous conditions on his property. Generally artificial but occasional natural condition will suffice. Four requirements for doctrine to apply:
1) a dangerous condition on the land the owner is aware of
2) the owner knows or should know children frequent the vicinity of the condition
3) the condition is likely to cause injury, ie is dangerous because of the child’s inability to appreciate the risk
4) the expense of remedying the situation is slight compared with the magnitude of the risk.

Question 77

Duty owned to licensees

Answer 77

1) warn or make safe dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee. and that the licensee is unlikely to discover and (ii) exercise reasonable care in the conduct of active operations.

Question 78

What is a licensee?

Answer 78

Someone who enters onto the land with the possessor’s permission for her own purpose or business, including social guests.

Question 79

Duties owed to invitees

Answer 79

1) Warn or make safe dangerous conditions known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover AND also a duty to make reasonable inspections to discover nonobvious dangerous conditions and thereafter, make them safe.

Question 80

What are the duties or lessors and lessees

Answer 80

Lessee has a general duty to maintain the premises. Lessor must warn of existing defects of which he is aware or has reasons to know, and which he knows the lessee is not likely to discover on reasonable inspection. If lessor covenants to repair, he is liable for unreasonably dangerous conditions. If the lessor volunteers to repair and does so negligently, he is liable.

Question 81

When will a statutory standard of care replace a more general common law duty?

Answer 81

1) the P is within the protected class and
2) the statute was designed to prevent the kind of harm suffered by the P

Question 82

What is the duty to avoid negligent infliction of emotional distress and when may it be breached?

Answer 82

May be breached when defendant creates a foreseeable risk of physical injury to the plaintiff. In order to prevail, the plaintiff (i) must be within the “zone of danger” and (ii) the plaintiff must suffer physical symptoms from the distress (severe shock to the nervous system that causes physical symptoms will satisfy the requirement)

Question 83

When can a bystander not in the “zone of danger” recover for negligent infliction of emotional distress after seeing injury to another?

Answer 83

One who sees the defendant negligently injuring another can recover damages for her own distress as log as 1) the plaintiff and the person injured are closely related; (ii) the plaintiff was present at the scene of the injury and (iii) the P personally observed or perceived the event. most states drop the requirement of physical symptoms

Question 84

Assumption of duty by acting

Answer 84

One may assume a duty to act once they start undertaking aid

Question 85

How may plaintiff show proof of breach in a negligence case (3 theories)

Answer 85

1. Custom or usage (BUT although certain behavior is custom in an industry a court could still find the whole industry is acting negligently)
2. Violation of a statute (negligence per se)
3. Res ipsa loquitur

Question 86

What is res ipsa loquitur

Answer 86

1) the accident causing the injury is a type that would not normally occur unless someone was negligent and
2) the negligence is attributable to defendant

Often can be shown by evidence that the instrumentality causingn the injury was in the exclusive control of the D.

Question 87

What is “actual cause” in torts + 3 tests

Answer 87

once negligent conduct is shown, plaintiff must show that the conduct was the cause of his injury
- “but for” test
- substantial factor (when several causes bring about an injury)
- Alternative causes – acts but only one caused the injury and it’s not known which one. Burden shifts to D to show his negligence was not the actual cause

Question 88

What is proximate cause

Answer 88

Legal causation. The doctrine of proximate causation is a limitation of liability and deals with liability or nonliability for unforeseeable or unusual consequences of one’s acts.

General rule is scope of foreseeable risk: A D is generally liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts.

Question 89

When is D NOT liable under proximate cause theory?

Answer 89

Unforeseeable results caused by foreseeable intervening forces and unforeseeable results caused by unforeseeable intervening forces.

Question 90

Measure of damages
- personal injury
- property
- punitive damages

Answer 90

Personal injury: P compensated for all damages (past, present, and protective), both economic damages, e.g., medical expenses, and noneconomic damages, e.g., pain and suffering and emotional suffering.
Property: measure of damage is reasonable cost of repair or FMV at the time of the accident if the property is nearly destroyed.
Punitive damages: punitive damages typically are not available but may be recoverable if D’s conduct was reckless.

Question 91

What is contributory negligence

Answer 91

Defense to negligence; it is negligence on the part of P that contributes to her injuries. In CL it was a complete bar for recovery

Question 92

When is contributory negligence not a defense to negligence proved by D’s violation of an applicable statute?

Answer 92

When the statute was designed to protect the class of plaintiffs from their incapacity or lack of judgment, e.g., children in a school zone hit by speeding car of D.

Question 93

Last clear chance doctrine

Answer 93

Essentially it’s a P’s rebuttal to the defense of contributory negligence and it’s the principle that P can recover despite contributory negligence. It’s the principle that the person with the last clear chance to avoid an accident but fails to do so is liable for negligence.

Question 94

Comparative negligence

Answer 94

Under comparative negligence, Plaintiff’s contributory negligence is not a complete bar to recovery; rather, the trier of fact weighs P’s negligence and reduces damages accordingly.

Question 95

Pure v. partial comparative negligence

Answer 95

Pure = P can recover no matter how great her negligence
Comparative = P can recover only if Ds’ negligence was greater than Ps

Question 96

Two instances of strict liability

Answer 96

1) Trespassing animals
2) Abnormally dangerous activities

Question 97

When will courts find an activity abnormally dangerous?

Answer 97

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

Question 98

strict liability =
Elements of strict liability

Answer 98

liability without fault. Doesn’t matter how much care defendant gave.
Elements = 1) nature of defendant’s activity imposes an absolute duty to make safe; 2) the dangerous aspect of the activity was the actual and proximate cause of the plaintiff’s injury; 3) the plaintiff suffered damage to person or property

Question 99

What are the five theories of liability a plaintiff may use in a products liability case?

Answer 99

1) intent
2) negligence
3) strict liability
4) implied warranties of merchantability and fitness for a particular purpose
5) representation theories (express warranty and misrepresentation)

Question 100

Common elements of products liability cases

Answer 100

1) a defect
(2) that was present when the product left D’s control.
In almost all cases there will be no contractual privity between D and P, and that is fine. Any foreseeable plaintiff, including a bystander, can sue any commercial supplied in the chain of distribution.

Question 101

Liability based on intent

Answer 101

Is very uncommon because typically it will be a battery case. But D will be liable to anyone injured by an unsafe product if D intended the consequences or knew they were substantially certain to occur.

Question 102

Product liability based on negligence

To whom is duty of care owed?

Answer 102

Same as any negligence case – duty, breach, actual and proximate cause, and damages.

Any foreseeable plaintiff

Question 103

Elements of product liability based on strict tort liability

Answer 103

1) a commercial supplier of a product; 2) producing or selling a defective product; 3) actual and proximate cause; 4) damages

Question 104

Are disclaimers effective in products liability cases?

Answer 104

No, not in negligence or strict liability cases

Question 105

Implied warranty of merchantability

Answer 105

implied in every sale of good that the godos are of average acceptable quality and geenrally fit for the ordinary purpose for which the goods are used

Question 106

Implied warranty of fitness for a particular purpose

Answer 106

Aries when seller knows or has reason to know the particular purpose for which goods are required and buyer is relying on the seller’s skill and judgment in selecting the goods.

Question 107

Representation theories (2)

Answer 107

1) Express warranty (anyone can sue, including bystanders, so long as someone relied on the express warranty)
2) Misrepresentation of fact – material misrepresentation of fact and seller intended to induce reliance by the buyer in a particular transaction.

Question 108

Is nuisance a separate tort?

Answer 108

No. It is a type of harm

Question 109

Private nuisance definition

Answer 109

a substantial, unreasonable interference with another private individual’s use or enjoyment of property that he actually possesses or has a right of immediate possession.

Question 110

What is substantial interference?

Answer 110

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

Question 111

What is unreasonable interference

Answer 111

The severity of the inflicted injury must outweigh the utility of defendant’s conduct. In balancing interests, the courts take into account that every person is entitled to use his ownn land in a reasonable way, considering the neighborhood, land values, annd existence of any alternative courses of conduct open to D.

Question 112

Public nuisance definition

Answer 112

An act that unreasonable interferes with the health, safety, or property rights of the community, e.g., using a building for criminal activities such as prostitution. Recovery by a private party is available only if the private party suffered unique damage not suffered by the public at large.

Question 113

Abatement by self help

Answer 113

In the case of private nuisance, self-help abatement is available after notice to defendance and his refusal to act. Only necessary force may be used.

Question 114

What is vicarious liability?

Answer 114

Liability that is derivatively imposed. One person commits a tortious act against a third party and another person will be liable to the third party.

Question 115

Basic situations of vicarious liability (3)

Answer 115

(1) Employee/servant – employer vicariously liable if tortious act was within the scope of employment relationship
(2) independent contractor – employer of independent contractor not vicariously liable unless activity is inherently dangerous or duty is nondelegable on public policy grounds.
(3) Partner or joint venturer – liable if within the scope of the partnership

Question 116

Joint and several liability

Answer 116

each negligent actor liable to plaintiff for entire damage incurred.

Question 117

What is satisfaction?

Answer 117

Full payment of damages. Only 1 satisfaction is allowed.

Question 118

What is release?

Answer 118

discharge of tortfeasors. In most states release of one tortfeasor does not discharge others.

Question 119

Contribution

Answer 119

Apportionment of damages between defendants to a P. Rule of contribution allows a defendant who pays more than his share of damages under joint and several liability to have a claim against other jointly liable parties for excess.