Torts

Question 1

Battery Elements

Answer 1

1. Intent to cause harmful or offensive contact
2. Harmful or offensive contact occurs

Question 2

Types of Intent (Battery)

Answer 2

Single Intent- intent to cause contact
Dual Intent - intent to harm or knowledge with substantial certainly that the plaintiff will be harmed or offended by the contact

Question 3

Assault (Elements)

Answer 3

1. Intent to cause apprehension of harmful or offensive contact
2. Present apparent ability to cause imminent harmful or offensive contact
3. Reasonable apprehension thereof

Question 4

False Imprisonment (Elements)

Answer 4

1. Intent to confine to a bounded area
2. Actual confinement
3. Awareness of Confinement or Damages

Question 5

Intentional Infliction of Emotional Distress (Elements)

Answer 5

1. Intent to cause severe emotional distress
2. Extreme and outrageous conduct
3. Causal connection between conduct and emotional distress
4. Severe emotional distress

Question 6

Trespass to Land (Elements)

Answer 6

1. An intentional act that causes a physical invasion of the plaintiff’s land

Simplified
1. Intent to enter
2. Actual entry

Question 7

Trespass to Chattels (Elements)

Answer 7

1. Intent to intermeddle, use, or dispossess
2. Actual intermeddling, use, or dispossession
3. Actual damage occurs

Intermeddle- an interference with a chattel that does not directly affect the plaintiff’s possession
Dispossession- a direct interference with the plaintiff’s possession

Question 8

Conversion (Elements)

Answer 8

1. Intentional exercise of dominion or control over a chattel
2. Which so seriously interferes with the right of another that the actor may justly be required to pay the other full value of the chattel

Question 9

Negligent Conduct Resulting in Emotional Distress

Answer 9

An actor whose negligent conduct causes serious emotional harm to another is subject to liability to the other if the conduct
1. Places the other in danger of immediate bodily harm and the emotional harm results from the danger,
2. Occurs in the course of specified categories of activities, undertakings or relationships in which negligent conduct is especially likely to cause serious emotional harm.

Question 10

Negligent infliction of emotional harm resulting from bodily harm to a third party

Answer 10

An actor who negligently causes sudden serious bodily injury to a third person is subject to liability,it’s for serious emotional harm caused thereby to a person who:
1. Perceives the event contemporaneously, and
2. is a close family member of the person suffering the bodily injury

Question 11

Duty of Land possessors to flagrant trespassers

Answer 11

1. The only duty a land possessor owes to flagrant trespassers is the duty not to act in an intentional, willful, or wanton manner to cause physical harm.
2. Notwithstanding above, a land possessor has a duty to flagrant trespassers to exercise reasonable care if the trespasser reasonably appears to be imperiled, helpless, or unable to protect himself.

Question 12

Self-Defense
Majority and Minority Jurisdiction w/Deadly force

Answer 12

1. Reasonable belief that threatened w/imminent battery
2. Reasonable force utilized

Majority- no duty to retreat
Minority- duty to retreat unless it can’t be done safely

Question 13

Defense of Others
Majority and Minority

Answer 13

1. Reasonable force to protect 3rd party
2. From a threat of imminent physical harm

Majority- mistake is not a defense. Put into shoes of the person defending
Minority- D can use force to the extent such force reasonably appears to be justified

Question 14

Defense of property

Answer 14

Justified in using as much force as appears reasonably necessary to protect their property

Verbal demand required unless unsafe

Deadly force can never be utilized to protect property

Question 15

Recovery of Property

Answer 15

1. Reasonable force
2. In fresh pursuit
3. After making request
4. Unmistaken
5. Wrongfully stolen property

Question 16

Vicarious Liability (Questions to ask)

Answer 16

Was D acting within scope of employment?
Was the D acting the further business of the employer?
Was there a deviation? Frolic or detour?

Question 17

Constitutionality of Punitive Damages

Answer 17

1. Reprehensibility of D’s conduct
   Look at harm caused, frequency of conduct, disregard for safety, or negligence
2. Ratio between harm/potential harm to P and punitive damages awarded
   Ratio more than one digit is likely to not be sustained. Maybe 4-1.
   Look at severity of conduct and future litigation
3. Comparison of punitive damages awarded and criminal penalties imposed by state

Question 18

Negligence (Elements)

Answer 18

1. Duty of care (foreseeable plaintiff)
2. Breach of duty
3. Causation (cause in fact & proximate cause)
4. Damages

Question 19

Strict Liability for Abnormally Dangerous Activities

Answer 19

1. An actor who Carrie’s on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity
2. An activity is abnormally dangerous if:
   A. The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors and
   B. The activity is not one of common usage

Question 20

General Duty of Land Possessors

Answer 20

Land possessor owes a duty of reasonable care to entrants on the land with regard to:

1. Conduct by the land possessor that creates risks to entrants on the land
2. Artificial conditions on the land that pose risks to entrants on the land
3. Natural conditions on the land that pose a risk to entrants on the land.

Question 21

Duty Based on Prior Conduct Creating Risk

Answer 21

When an actor’s prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm.

Question 22

Duty Based on Special Relationship

Answer 22

1. An actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship.
2. Special relationships giving rise to the duty
   Employee/employer
   Innkeeper/guests
   School/students
   LL/Tenant

Question 23

Vicarious Liability for Contractors

Answer 23

An actor who hires an independent contractor is not subject to vicarious liability for physical harm caused by the tortious conduct of the contractor.

Question 24

When is a Possessor and Lessors of Land Vicariously Liable for a Contractor

Answer 24

1. A possessor of land who hires an independent contractor for activity on the land is subject to vicarious liability for harm if:
   A. The possessor owes a duty of care
   B. The harm occurs while the possessor retains possession of the premises during the activity or after the possessor has resumed possession of the land upon completion of the activity; and
   C. The independent contractor’s negligence is a factual cause of any such harm within the scope of liability

Question 25

Strict Liability for Intrusion of Livestock

Answer 25

An owner or possessor of livestock or other animals, except for domesticated animals, that intrude upon the land of another is subject to strict liability for physical harm caused by the intrusion

Question 26

Wild Animals and Strict Liability

Answer 26

1. An owner or possessor of a while animal is subject to strict liability for physical harm caused by the wild animal
2. A wild animal is an animal that belongs to a category of animals that have not been generally domesticated and are likely, unless restrained, to cause personal injury

Question 27

Dangerous Animals and Strict Liability

Answer 27

An owner of possessor of an animal that the owner or possessor knows or has reason to know has dangerous tendencies abnormal for the animal’s category is subject to strict liability for physical harm caused by the animal if the harm ensues from that dangerous tendency.

Question 28

Work Involving Abnormally Dangerous Activities (Contractor)

Answer 28

An actor who hires an independent contractor to do work that the actor knows or should know involves an abnormally dangerous activity is subject to vicarious liability for physical harm when the abnormally dangerous activity is a factual cause of any such harm within the scope of liability.

Question 29

Direct Liability in Negligence for those who hire independent contractors

Answer 29

An actor:
1. Who hires an independent contractor to perform an activity that creates a risk of physical harm or
2. Who is under any affirmative duties provided and hires an independent contractor to perform any of the obligations required by the affirmative duty

Is subject to liability for physical harm when the actor’s negligence is a factual cause of any such harm within the scope of liability.

Question 30

Framework for Products Liability Based on a Defect

Answer 30

1. Is the defendant a seller/distributor
2. Is the product defective
3. Did the defect exist when the product left the seller and received by consumer in unchanged state
4. Does the defect cause an injury (property or persons)

Question 31

Defamation (Elements)

Answer 31

1. Defamatory matter
2. Of or concerning the plaintiff
3. Published to a 3rd party
4. Damages, falsity, and fault will be presumed

For slander- damages must be proven

Question 32

Slander Defined

Answer 32

Slander is the publication of a defamatory matter by spoken words or transitory gestures.

Question 33

Libel Defined

Answer 33

Libel is the publication of defamatory matter by written or printed words, by its embodiment in physical form or by any other form of communication that has the potentially harmful qualities characteristic of written or printed words.

No damages required for libel, damages will be presumed as with falsity.

Question 34

Public Official v. Public Figure v. Limited Public Figure: for Defamation

Answer 34

Public official - think government official
Public Figure- celebrities, thrust themselves into the controversy
Limited Public Figure - think limited vortex. Has access to effective channels of communication, voluntarily assumed role of special importance, sought to influence the resolution or outcome of a controversy

Question 35

Private Individual for Defamation

Answer 35

Someone who doesn’t fit the definition for other categories, negligence standard

Question 36

Statement involving a public concern (Defamation Analysis)

Answer 36

1. Published? Must be intentional or negligently communicated to a third party
2. Defamatory? Tend to harm one’s reputation
3. Of or concerning plaintiff? Reasonable reader/listener will believe it is about plaintiff
4. Is the statement reasonably interpreted as asserting facts?
5. Is the falsity of the statement established?
6. Is the plaintiff a public figure or private person

Public official: if actual malice (knowledge of falsity or reckless disregard for the truth), damages are presumed and defendant will be liable.

Private individual: if actual malice, damages may be presumed
Private individual: if negligent, plaintiff must prove actual injury/damages

Question 37

Statement involving a private concern (defamation action)

Answer 37

1. Published? Has to be intentional or negligently communicated to a third person
2. Defamatory? Tends to harm one’s reputation
3. Of or concerning? Reasonable listener/reader would believe the statement is about the plaintiff
4. Is the statement reasonably interpreted as asserting facts?
5. Is the statement slander per se or libel? Damages presumed
6. Is the statement slander? Plaintiff must show special damages.

Question 38

Slander Per Se Categories for Defamation Action

Answer 38

One who publishes matter defamatory to another in such a manner as to make the publication a slander is subject to liability to the other although no special harm results if the publication imputes to the other:
1. A criminal offense
2. A loathsome disease
3. Matter incompatible with his business, trade, profession, or office
4. Serious sexual misconduct

Question 39

Affirmative Defenses for Defamation

Answer 39

1. Truth- one who publishes a defamatory statement of fact is not liable for defamation if the statement is true
2. Absolute privilege- judicial officers, judicial proceedings, husband and wife
3. Consent- the consent of another to the publication of defamatory matter concerning him is a complete defense to his action of defamation
4. Fair comment or expression of opinion- a defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.

Question 40

Manufacturing Defect for Products Liability

Answer 40

Departure from intended design
Even though all reasonable care exercised by D

A manufacturing defect is when the product deviates from its intended design and that deviation created the hazardous situation.

Did the product depart from its intended design even though all possible care was exercised?

Question 41

Design Defect for Products Liability

Answer 41

Foreseeable risk of harm reduced/avoided by adopting reasonable alternative design
Omission renders product not reasonably safe

Would the foreseeable risk of harm posed by the product have been reduced or avoided by adopting a reasonable alternative design and the omission renders the product not reasonable safe?

Question 42

What standard is used for design defect?

Answer 42

Risk utility standard- comparison of the proposed alternative design and the current design.

Question 43

Possible Defense for Products Liability

Answer 43

Comparative fault or contributory negligence.

Did the plaintiff fail to exercise reasonable care?