Torts

Question 1

Abnormally dangerous activities

Answer 1

imposes strict liability even absent negligence if it:
(1) creates a foreseeable and highly significant risk of harm even in the exercise of reasonable care and
(2) the activity is not commonly engaged in

Question 2

Assault Elements

Answer 2

(1) reasonable apprehension
(2) of an imminent harmful or offensive bodily contact
(3) caused by the defendant’s action or threat
(4) with the intent to cause either apprehension of such contact, or the contact itself

Question 3

Effect of plaintiff’s negligence in strict-products-liability cases

Answer 3

In most comparative fault jurisdictions - plaintiff’s own negligence will reduce recovery in the same manner as a negligence action

In some, it does not reduce damages

Question 4

False Imprisonment Elements

Answer 4

(1) D intends to confine or restrain P within limited area
(2) D’s conduct causes P’s confinement or the defendant fails to release
(3) plaintiff is conscious of the confinement
*in a majority of jurisdictions, a plaintiff who was not conscious of the confinement may still recover if harmed by the confinement

Question 5

In what ways may a plaintiff be confined resulting in false imprisonment

Answer 5

(1) physical barriers
(2) physical force or restraint
(3) threat of physical force or restraint
(4) duress (other than by threat of physical force or restraint)
(5) assertion of legal authority

Question 6

When is a landlord liable under negligence to a third party for injuries suffered on the leased premises

Answer 6

landlord is liable for injuries to a tenant or third party when they occur:
(1) in common areas such as parking lots, stairwells, lobbies, and hallways
(2) as a result of hidden dangers about which the landlord fails to warn the tenant
(3) on premises leased for public use
(4) as a result of a hazard caused by the landlord’s negligent repair, or
(5) involving a hazard that the landlord has agreed to repair

Question 7

What level of force can you use to recapture personal property?

Answer 7

a person is generally not privileged to commit battery, assault, or false imprisonment to regain possession of personal property

** note- under “hot/fresh pursuit” exception, when a P wrongfully takes personal property from a D’s possession, the D may use reasonable, nondeadly force to regain possession of the property if the defendant acts promptly

Question 8

When can reasonable force be used to defend property?

Answer 8

(1) intrusion is not privileged
(2) defendant reasonably believes that P is intruding or will imminently intrude on their property, the intrusion can be prevented or terminated only by the means used
(3) the D first asks the P to desist and the P disregards the request or the D reasonably believes that a request will be useless/ dangerous/ or that substantial harm will be done before the request can be made
(4) the means used are reasonably proportionate to the value of the interest the defendant is protecting, and
(5) the means used are not intended or likely to cause death or serious bodily injury

Question 9

Negligence Elements

Answer 9

a prima facie case consists of:
(1) duty
-obligation to protect another against unreasonable risk of injury
(2) breach
-failure to meet that obligation
(3) causation
- factual and proximate
(4) damages
-loss suffered

*the plaintiff must establish all four elements of negligence by a preponderance of the evidence

Question 10

What is the effect of establishing res ipsa loquitur

Answer 10

if the plaintiff establishes a prima facie case of res ipsa, the trial court should deny a D’s motion for a directed verdict

*simply establishes an inference of negligence sufficient to avoid dismissal of the plaintiff’s action

Question 11

Test for determining whether contact is offensive (battery)

Answer 11

objective test - contact is offensive when a person of ordinary sensibilities would find the contact offensive

subjective test - contact is offensive when the defendant knows that the contact is highly offensive to the plaintiff’s dignity

Question 12

Andrews/ Cardozo view of foreseeable plaintiffs

Answer 12

Cardozo (majority) - duty of care is owed only if the plaintiff is a member of the class of persons who might be foreseeably harmed by the D’s conduct

Andrews (minority) - if D can foresee harm to anyone as a result of his negligence, then a duty of care is owed to everyone (foreseeable or not)

Question 13

When a defendant has an affirmative duty to act

Answer 13

(1) Assumption - person renders aid
(2) Placing another in peril
(3) Contractual duty
(4) Authority - actual ability and authority to control another - ex. parent, employer
(5) Special relationship - D with a unique relationship to a plaintiff - business proprietor, common-carrier- innkeeper, parent, employer, etc
(6) Statutory obligation- imposes an obligation to act for the protection

Question 14

“Good Samaritan” statute

Answer 14

protects doctors and other medical personnel when they voluntarily render emergency care

exempt them from ordinary negligence, but not for gross negligence

Question 15

Defamation Elements

Answer 15

(1) defendant’s defamatory language
(2) is of or concerning the P
(3) is published to a third party who understands its defamatory nature, and
(4) it damages the plaintiff’s reputation

*for matters of public concern - plaintiff is constitutionally required to prove fault on the part of the defendant - must also prove statement is false

*if P is either a public official or a public figure - must prove actual malice - must also prove statement is false

Question 16

Duty owed to Trespasser

Answer 16

obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers

*note land possessors generally owe no duty to undiscovered trespassers, nor do they have a duty to inspect their property for evidence of trespassers

Question 17

Duty owed to Licensee

Answer 17

land possessor has a duty to either correct or warn a licensee of concealed dangers that are either known to the land possessor or that should be obvious to them

*note no duty to inspect, but must exercise reasonable care in conducting activities on the land

Question 18

Duty owed to Invitee

Answer 18

land possessor owes an invitee the duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them

• note this duty does not apply when an invitee goes beyond the scope of their invitation, in that case they are treated as a trespasser

Question 19

Res Ipsa Elements

Answer 19

(1) accident was of the kind that ordinarily does not occur in the absence of negligence
(2) caused by an agent or instrumentality within the exclusive control of the defendant; and
(3) not due to any action on the part of the plaintiff

Question 20

Traditional test for contributory negligence

Answer 20

P’s contributory negligence is a complete bar to recovery, regardless of the percentage

Question 21

Firefighter’s Rule

Answer 21

An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent in the job

Question 22

What damages are permitted under strict-liability

Answer 22

only personal injury or property damage

*claims for purely economic loss must be brought as a breach-of- warranty action