Torts

Question 1

Intentional Tort: Battery

Priority: High

Answer 1

A defendant is liable for battery when there has been an intentional, harmful or offensive contact, with teh plaintiff’s person, or anything connected to the plaintiff.

A defendant intentionally acts when he:
1. acts with the desire to bring about the harm/contact; or
2. is substantially certian the harm/contact will occur.

A plaintiff need not suffer actual damages. Nominal damages suffice.

Question 2

Intentional Tort Defenses: Consent

Priority: High

Answer 2

Consent may be express or implied by words, conduct, or law. Implied consent is effective when words or conduct are reasonably understood to be intended as consent. Implied by law consent include special circumstances, such as medical emergencies.

Defendant’s actions cannot exceed the bounds of the consent given.

Question 3

Privilege Defenses: Necessity

Priority: High

Answer 3

A defendant is not liable for harm to the plaintiff’s real property for acts that were necessary, or reasonably believed to be necessary, to prevent serious harm to person or property. When using public property it is a complete defense. When using private property, the defendant may be liable for any damages caused unless the purpose was to help the plantiff.

Question 4

Privilege Defenses: Self-Defense/Defense of Others

Priority: High

Answer 4

A defednant is not liable for harm to the plaintiff if he reasonably believed the plaintiff was going to harm him or another and used reasonable force that was necessary to protect himself or another.

Question 5

Privilege Defenses: Defense of Property

Priority: High

Answer 5

A defendant may use reasonable force to defend property, but never deadly force.

Question 6

Privilged Defenses: Recapture of Chattles

Priority: High

Answer 6

The owner of chattles may demand the return and then take prompt action and use reasonable force to recover chattels from the wrongdoer, but never deadly force.

Question 7

Privilged Defenses: Shopkeeper’s Privilged

Priority: High

Answer 7

Shopkeepers have the privilege of temporarily detaining a person reasonably suspected of theft in or near their store for the purpose of an investigaiton. Reasonable non-deadly force may be used to tdetain the individual, when a request to remain has been made and refused.

Question 8

Privilged Defenses: Privilege for Dicipline

Priority: High

Answer 8

Parents may use reasonable force in diciplining thier children.

Question 9

Privilged Defenses: Privilge to Arrest

Priority: High

Answer 9

A defendant has the privilege to arrest a plaintiff directly observed committing a serious felony.

Question 10

Prima Facie Case of Negligence

Priority: High

Answer 10

A prima facie case for negligence requires:
1. a duty owed to the plaintiff by the defendant
2. a breach of that duty
3. the breach is the actual and proximate cause of the plaintiff injuries
4. damages.

To make the prima facie case, a party must offer sufficient evidence so that the tirer of fact could reasonably find that all of the above elements have been met.

Question 11

Affirmative Duty to Act

Priority: High

Answer 11

Generally, there is no affirmative duty to act. However, an affirmative duty to act can be created under the followig scenerios:
1. a pre-existing relationship (parent-child, landlord-tenant);
2. defendant put the plaintiff in peril;
3. duty imposed by law; or
2. a person who undertakes aid or rescue must exercise rasonable care and is liable for injuries resulting from an unreasonable increase in the risk of harm or a detramental reliance on the aid.

Question 12

Standard of Care: Reasonable Person Standard

rPriority: High

Answer 12

Every person has the duty to act as a reasonable prudent person would act under like circumstances. This duty extends to all forseeable plaintiffs and includes taking actions to avoid forseeable risks. A person with a physical disability must act as a reasonable person with the disability would act. There is no such modificaiton for mental disabilities.

Question 13

Standard of Care: Children

Priority: High

Answer 13

Children have a duty to act as a hypotehtical child of similar age, expereince, and intelligence acting under similar cicumstances would act unless they are engaged in an adult activity, and then they are held to the reasonable person standard. Generally children under 7 are presumed incapable of negligence and under 5 are excluded from negligence.

Question 14

Standard of Care: Professionals

Priority: High

Answer 14

A professional owes a duty to act with the competence, knowledge, and skill of an average memeber of that profession practicing in a similar community. If the professional holds himself out to be a specialist, then he has a duty to act with the care and skill of an average member of the profession with that speciality.

Question 15

Standard of Care: Psychologist/Psychotherapist

Priority: High

Answer 15

A psychologist/psychotherapist has a duty to warn potential victims when their patent makes a credible threat to others. In most states, a therapist will be liable for the victims injuries if the therapist believed the patient posed a real risk of serious physical violence to a readily identifiable victim and the therapist failed to take steps to warn the victim.

Question 16

Standard of Care: Entrants to Land

Priority: High

Answer 16

Undiscovered Trespasser: no duty owed
Antcipated Trespasser: reasonable care in operations of propety to warn of or make safe any highly dangerous artifical condition that the landowner has actual knowlege of.
Licensee: reasonable care in operations of property and warn of dangerous conditions.
Invitee: duty to make reasonable inspections to land to find and make safe any non-obvious dangerous conditions.
Attractive Nusance: duty to protect child trespassers from artificial conditions that are likey to cause death or serious bodily injury in an area where children are likely to frequent without appreciating the risks or dangers. The landowner is liable if the harm outweighs the expense of making the condition safe and he fails to excercise reasonable care to eliminate the danger or protect children from it.

Some states say you have a reasonable duty of care to all entrants.

Question 17

Negligence Per Se

Priority: High

Answer 17

To establish negligence per se, a plaintiff must establish that a statute created a duty of care, the purpose of the statute was to prevent the type of harm suffered, and the plaintiff is in the class of persons the statute seeks to protect.

A defendant is excused from this standard of care when compliance with the statute would have been more dangeorus than the violtaion of it or when compliance is impossible.

Question 18

Res Ipsa Loquitur

Priority: High

Answer 18

When breach is difficult to prove, a plaintiff may assert res ipsa loquitur when:
1. injury of the sort suffered does not usually occur in the absence of negligence
2. the instramentality that caused the injury was within the defendant’s control
3. plaintiff did not contribute to the injury

Not ordinarily avaliable to show liability of any particular defendant.

Question 19

Actual Cause

Priority: High

Answer 19

But for the defednant’s negligence, the plaintiff would not have been injured. The actual cause can be one of multiple causes, if it was a substantial factor in bringing about the injury.

Question 20

Proximate Cause

Priority: High

Answer 20

The injury must have been a forseeable result of the breach. Any action that occurs after the breach is an intervening cause. If the interveining cause is a natural reaction to the breach then it is forseeable.

• Medical malpractice is alwayse forseeable.
• Injured rescurer’s injuries are forseeable.
• Negligent resuce causing increased harm is forseeable.

Question 21

Eggshell Plaintiff Rule

Priority: High

Answer 21

A tortfeaser takes his victim as he finds him and is liable for all harm that a plaintiff suffers as a result of the conduct, even if the plaintiff suffered from preexisting mental or physical condition that made the harm greater than what a normal person might suffer.

Question 22

Pure Comparative Negligence

Priority: High

Answer 22

The plaintiff can recover any damages incurred by the defendant less the percentage that the injury that is determined to be the Plaintiff’s fault.

Question 23

Partial Comparative Negligence

Priority: Medium

Answer 23

The plaintiff can recover any damages incurred by the defendant less the percentage that the injury that is determined to be the Plaintiff’s fault. However, if the plaintiff is more than 50% at fault, then the plaintiff cannot recover any damages.

Question 24

Contributory Negligence

Priority: Medium

Answer 24

The plaintiff cannot recover damages from the defednant if he contributed to his own injury in any way, except:
1. if the defendant had the last opportunity to avoid the accident; or
2. defendant was reckless

Question 25

Negligent Infliction of Emtional Distress

Priority: High

Answer 25

Generally, NIED is only avalaible in three scenerios:
1. plaintiff was in the zone of danger from the defendant’s negligent acts which created a forseeable risk of injury and the plaintiff manifests physical symptoms from the near miss.
2. plaintiff is a close biological family member that witnesses a negligent injuring and manifest physical symptoms as a result
3. plaintiff is in a special pre-existing relationship with the defendant and the negligent act could forseeably cause distress. Generally only avaliable in egregious situations.

Question 26

Joint and Several Liability

Priority: High

Answer 26

A plaintiff may recover the entire amount from any single defendant if the jurisdiction supports joint and several liability.

Question 27

Products Liability

Priority: High

Answer 27

A commercial supplier of a defective product is subject to strict liability for any harm caused by the product if the plaintiff can show personal injuries resulting due to:
1. product was defective;
2. product was not altered;
3. product caused the inujury while being used in a forseeable way; and
4. the defendant is a commercial supplier of this type of good

• Plaintiff does not have to be the purchaser
• Commerical supplier includes any seller in the distribution chain (including retailer and wholesaler)

Question 28

Products Liability: Types of Defects

Priority: High

Answer 28

Manufacturing Defect: product differs from the intended design and it is more dangerous than if made properly.

Failure to Warn: the plaintiff was not warmed of the risks which were not obvious to an ordinary user but were known to the designer/manufacturer.

Design Defect: the product could have been designed to be built safer, more practically, and with a similar cost.