Torts

Question 1

Three Negligence Hypos

Answer 1

(1) Regular Negligence: liability for damages

(2) Negligence per se: violation of a statute

(3) Res Ipsa Loquitor: one or both parties making a motion for summary judgment/directed verdict & whether a jury could infer/conclude negligence

Question 2

Negligence

Answer 2

(1) Duty

(2) Breach

(3) Causation: Actual & Proximate Cause

(4) Damages

Question 3

Lay Person Duty

Answer 3

Duty to act as a reasonably prudent person would. Duty owed only to foreseeable plaintiffs

Question 4

Foreseeable Plaintiff

Answer 4

People in the zone of danger

Question 5

Duty Owed to People Who Enter a Property

Answer 5

Unknown Trespasser – no duty

Known Trespasser – duty to warn of known dangers

Licensee – social guest/personal relationship; duty to warn of known latent dangers

Invitee – business/commercial (customer); duty to warn of known dangers, inspect, and make safe (clean banana peel/spill)

Question 6

Parent/Child Duty

Answer 6

P has a duty to exercise reasonable care in supervising C to prevent harm if the P knew or should have known they need to control C (devil child on leash)

Question 7

Duty to Rescue

Answer 7

General Rule: No duty to rescue/provide

Exceptions –

(1) If come to person’s rescue, then owe them reasonable care;

(2) Special Relationship [common carriers (bus, airplane, trains)/passengers; teacher/student; employer/employee; hotel/guest]

Question 8

Duty of a Child

Answer 8

Not objective; duty to act like other kids of same age and experience

Question 9

Duty of a Professional

Answer 9

Not objective; duty to act like other professionals in the community with that experience, background, and training (community standard)

National (not community) standard of care applied to medical specialists

Question 10

Breach

Answer 10

Didn’t comply with duty

Question 11

Actual Causation

Answer 11

But for D’s actions, no harm would have occurred

majority rule if multiple causes – substantial factor in causing the harm

Question 12

Proximate Cause

Answer 12

Whether it was foreseeable that D’s actions would have caused the harm

Question 13

Subsequent Negligent Acts

Answer 13

E.g., ambulance driver mistake, hospital gives wrong medicine, doctor cuts off leg. Every SNA is an intervening cause (liable) except for a few instances where it’s a superseding cause (not liable).

Intervening Cause – everything is foreseeable, so D is liable for subsequent negligent acts

Superseding Cause – not foreseeable, so liability is cut off and D is only liable for initial harm. (1) Act of God (e.g., lightening); (2) Intentional Tort; (3) Crime; (4) Fact pattern tells you it’s unforeseeable

Question 14

Intervening Cause

Answer 14

Everything is foreseeable, so D is liable for subsequent negligent acts

Question 15

Superseding Cause

Answer 15

Not foreseeable, so liability is cut off and D is only liable for initial harm.

(1) Act of God (e.g., lightening)

(2) Intentional Tort

(3) Crime

(4) Fact pattern tells you it’s unforeseeable

Question 16

Damages

Answer 16

Physical injury/harm is required

Question 17

Negligence Per Se

Answer 17

(1) violation of a statute

(2) the person injured is part of the class of the people the statute was designed to prevent

(3) the injury is the type of injury the statute was designed to prevent. E.g., speeding in a school zone and hit a kid

exception (D’s physical disability, physical, incapacity, evidence that used reasonable care, or D is a child)

Question 18

Res Ipsa Loquitor

Answer 18

(1) whatever occurred does not normally happen absent negligence

(2) D was in exclusive control of the instrumentality = raises inference that negligence occurred (jury). Shifts burden to D to establish that he was not negligent.

E.g., flowerpot falling from hotel window; surgeon leaving scalpel in body.

Exclusive Control – no one else could have done it

If multiple tortfeasors - evidence must be shown they jointly engaged in tortious conduct to meet exclusive control prong

Question 19

Attractive Nuisance

Answer 19

Artificial condition on an owner’s land that causes kids to trespass [to play w it] (e.g., trampoline, treehouse)

Liable if –

(1) Owner knew or should have known that kids would trespass;

(2) the condition poses an unreasonable risk of harm;

(3) the kids, bc of their age or maturity, do not appreciate the risk;

(4) the utility of maintaining the condition is slight (aka cheaper) compared to the risk (damage) to the kids;

(5) the owner fails to make it safe.

Question 20

Defenses to Negligence

Answer 20

(1) Pure Comparative Negligence;

(2) Modern/Modify Comparative Negligence;

(3) Contributory Negligence;

(4) Assumption of the Risk

Question 21

Pure Comparative Negligence

Answer 21

DEFAULT

If P is negligent, P can still recover but their damages will be reduced by their % of fault.

Question 22

Modern/Modify Comparative Negligence

Answer 22

If P is negligent, P can still recover. However, if P is more than 50% responsible for injury, recovery is cut off and P gets nothing.

Question 23

Contributory Negligence

Answer 23

if P is negligent (even 1%), P cannot recover.

Exception: Last Clear Chance – if D had last clear chance to avoid injury/accident, then P can recover damages.

Question 24

Assumption of the Risk

Answer 24

P must have

(1) the knowledge of and

(2) appreciates the danger and

(3) P does it anyways

Question 25

Joint and Several Liability

Answer 25

Two or more co-Ds caused injury but do not know who did what. One D can be liable for all of damages. P can recover damages from one or all co-Ds.

Question 26

Vicarious Liability

Answer 26

Employer is liable for negligent acts & intentional torts of employees if the employee was acting within the scope of their employment

Scope of Employment– Employee’s conduct is inherent in the employment position or furthers employer’s business

Independent Contractor – Employer is NOT liable for negligence of independent contractor.

Exception: Non-delegable duty - Duty that cannot be assigned to another to avoid liability. (1) Maintain safe conditions to premises open to public (e.g., store, restaurant), (2) Safely perform activities that are (a) abnormally dangerous; (b) infringe on private property right (e.g., nuisance, trespass); (c) are regulated by law; or (d) are conducted in public place. Includes – land possessor’s duty to safely conduct activities on the land that pose foreseeable risks of harm to others (e.g., construction, repairs)

Agency Relationships – employer/employee; non-delegable duty; parent/child; business partner; automobile owner; Dram shop & social host

Apparent Agency - vicarious liability can be imposed if (1) the P reasonably believed that the 3rd party was acting within the scope of the agency relationship w the D AND (2) the belief was traceable to the D’s manifestations (words or conduct)

Question 27

Contribution

Answer 27

Joint & Several Liability. Party writing check to P did something wrong. Contribution = the suit where one co-D goes after another co-D to help pay damages to P.

Question 28

Indemnification

Answer 28

Vicarious Liability. Party writing check to P did not do something wrong. Indemnification = the suit the employer goes after employee to pay damages to P.

Question 29

Strict Liability

Answer 29

(1) Wild animals and (2) Abnormally Dangerous Activity (3) Intrusion by Livestock

(a) Wild Animals – possessing non-domesticated animals (e.g., lion, tiger, bear). Any direct or indirect (fear/reaction to seeing animal & trip trying to get away) injury caused by wild animal = SL (except: trip over wild animal itself and break leg).
Domesticated Animals – SL for domesticated animals only if known dangerous propensity (rabid dog).

(b) Abnormally Dangerous Activity – Blasting/explosives/dynamites or toxic/flammable/nuclear/glow in the dark chemicals. If injury is directly foreseeable from interacting w one of the above = SL. Fireworks are not considered abnormally dangerous.
Exception – When dangerous activity is so far removed from P (e.g., boulder flies 40 miles from blown building and hits P)

(c) Livestock - SL if livestock foreseeably enter onto another’s land & cause physical harm (bodily/property). No SL if livestock intrusion caused by an unforeseeable act or force (e.g., unprecedented earthquake)

(d) Defense to SL: Assumption of the Risk – P must have (1) the knowledge of and (2) appreciates the danger and (3) P does it anyways.

Question 30

Products Liability

Answer 30

Product broke and consumer is injured. No pure economic damage

Three hypos about why product broke and theory to sue under:

(1) Negligence – someone in the chain acted negligently and that’s why product broke –> no pure economic damages

(2) Warranty/Promise – company gives a guarantee about product (e.g., sticker, pamphlet, etc.). –> pure economic damages

Misrepresentation (PL) - (1) Commercial Seller (2) Misrepresents a material fact about product (3) consumer justifiable relied (4) product caused harm

(3) Strict Product Liability (or sometimes “Strict Liability in Tort”) – (1) D was commercial supplier in the chain of distribution (manufacturer, distributor, retailer, etc.); (2) Product defective* at time left D’s control; (manu defect, design defect, inadequate warning); (3) Defect caused P physical harm (bodily harm or property damage) –> no pure economic damages

*Defective – if defective product poses a foreseeable risk of harm & risk could have been reduced by a feasible alternative design (i.e., risk-utility test: comparing risks & benefits of OG design to those of an alt design)

P is a Foreseeable User – purchaser or purchaser’s friend, fam, coworkers. But not purchaser’s thief

(4) Defenses to PL – (1) Consumer’s Misuse; (2) Assumption of Risk

Product poses a foreseeable risk of harm? no = no defect; yes = –> Feasible alternative design could reduce that risk? yes = design defect; no = –> reasonable warnings/instructions could reduce that risk? No = no defect; Yes = inadequate warnings/ instructions

Question 31

Battery

Answer 31

(1) intent to cause H/O C

and

(2) harmful or offensive contact to another person OR anything physically connected to them.

Question 32

Assault

Answer 32

(1) intent

(2) causing reasonable apprehension of

(3) an imminent harmful contact –> but don’t have to actually have contact.

Question 33

Trespass to Chattel

Answer 33

Intentional interference with the use of P’s property. P gets property back. D doesn’t have to destroy property.

Damages = the actual use/actual harm that happened to property while D had it and was using it.

(1) intent

(2) interference with use.

Intent – D doesn’t have to have intent to destroy. Just intent to take chattel.

Interference –

Dispossession = harm inferred.

Use or interference = causes harm = (1) actual harm to chattel; (2) substantial loss of use; (3) bodily harm to P

Question 34

Conversion

Answer 34

Intentional and substantial interference with the use of P’s property causing chattel to be destroyed, lost, or gone. P does not get property back [i.e., conversion].

Damages = full value of chattel at the time of conversion.

(1) intent;

(2) substantial interference with use;

(3) property is destroyed, lost, or gone.

Note: D doesn’t have to have intent to destroy. Just intent to take chattel.

Question 35

Trespass to Land

Answer 35

(1) Intent

(2) Enter P’s land

Note: Intent to enter property. Don’t need to specifically target that property or know whose land it is.

can occur on, beneath, or above property

Question 36

Intentional Infliction of Emotional Distress

Answer 36

(1) intentional or reckless/malicious (knew or should have known);

(2) conduct is extreme or outrageous (e.g., abuse of power*) –> FEAR
a. Flagrant indecency
b. Exploiting known & special vulnerabilities
c. Abusing authority
d. Repeated harassment

(3) causing severe emotional distress (no physical harm required)

*abuse of power, e.g., creditor threatening unjustified criminal prosecution or contacting debtor’s employer or neighbor

Question 38

Bystander Intentional IED

Answer 38

B witnesses P get run over by D. B sues D for IIED of witnessing P get run over. B can recover in two situations:

(1) Close Family - (1) Bystander is a close family relative of P; (2) D knows bystander (& the special relationship b/w bystander + P) is there; (3) Bystander suffers emotional distress.

(2) Third Party - (1) Bystander with no blood relation to P (3rd Party) and (2) Bystander must suffer physical harm

Question 39

False Imprisonment

Answer 39

(1) Intent

(2) P placed in bounded area (no means of escape)

(3) P is aware that they are being confined

Shopkeeper privilege – if a merchant has reasonable suspicion that someone is stealing from them, merchant can detain suspect for a reasonable amount of time

Private Citizen’s Privilege to Arrest – Felony: D is privileged to confine a P when (1) a felony has been committed & (2) D reasonably believes P committed it; Misdemeanor: (1) Misdemeanor is being committed or reasonably appears about to be committed in the presence of D & (2) misdemeanor is a breach of peace.

Question 40

Defenses to Intentional Torts

Answer 40

(1) Consent

(2) Self-Defense

(3) Defense of Others

(4) Defense of Property

(5) Public/Private Necessity

Never a Defense: inability to pay damages, mental capacity (except: allowed to evaluate intent)

Question 41

Consent

Answer 41

P consents (express or implied). However, D cannot use consent defense if D exceeded the scope of P’s consent.

Plaintiff’s Substantial Mistake – Consent is valid unless D = affirmative misrepresentation, fraud, knew about the mistake (e.g., permanent hair dye)

Question 42

Self-Defense

Answer 42

If have reasonable belief that someone will hurt you, you can use proportionate/same force

Deadly Force in Self-Defense – (1) intent to inflict/about to inflict unprivileged force; (2) such force puts D in peril of death, serious bodily harm, or rape; (3) D can prevent the peril only by immediately using deadly force

Question 43

Defense of Others

Answer 43

Reasonable belief defense is necessary to protect 3rd party, can use proportionate/same force to protect 3rd party

Question 44

Defense of Property

Answer 44

Reasonable belief that you can stop invasion of your land, can use reasonable force to defend property (can never use deadly force unless there is deadly force on person)

Mechanical Device – e.g. barbed wire. Device is (1) reasonably necessary to protect property from intrusion; (2) not unreasonably dangerous; (3) customarily used for this purpose or reasonable care is taken to make its use known; (4) not intended or likely to cause death or serious bodily harm.

Question 45

Private Necessity

Answer 45

Generally for trespass to land

Must trespass bc of personal necessity. Liable for actual damages only.

Question 46

Public Necessity

Answer 46

Generally for trespass to land

Must trespass bc trying to prevent public harm. NOT liable for damages.

Question 47

Negligent Trespass to Land

Answer 47

(1) Enters another’s land negligently

(2) Damages

Question 48

Negligent Infliction of Emotional Distress

Answer 48

(1) Negligent conduct;

(2) person is in zone of danger;

(3) person suffers severe physical harm;

(4) person suffers emotional distress. E.g., D texting and driving. Almost hits P but ends up swerving before contact. P breaks leg moving away

Question 49

Bystander Negligent IED

Answer 49

Must be

(1) a close family member;

(2) presence to witness (D doesn’t have to know);

(3) suffer emotional distress

Question 50

Special NIED

Answer 50

Negligent Handling of a corpse
(1) negligent handling of corpse;
(2) suffered ED witnessing that (no physical harm is required)

Delivered erroneous announcement of death or illness (1) “ & (2) suffered ED

Contaminated food w repulsive foreign object (1) “ & (2) suffered ED

Question 51

Private Nuisance

Answer 51

Unreasonable interference (light, smell, noise, etc.) with the use and enjoyment of another’s property (objective standard; so no weird sensitivity/allergy or abnormal use). Generally, between neighbors/individuals

coming to a nuisance (e.g., moving close to a frat house knowing they have a rep for loud parties) - factor in determining whether u have an actionable claim but not conclusive

Question 52

Public Nuisance

Answer 52

Unreasonable interference with a right shared by/affecting the public at large. Suit generally brought by GO on behalf of public at large. If suit is brought by private plaintiff/individual, must prove special harm (gen, economic).

Question 53

Defamation

Answer 53

(1) defamatory statement (false, negative);

(2) of or about P;

(3) with publication (heard & understood by a 3rd party);

(4) causes damage (reputation/economic damage)

Type of Statement –
(a) Libel [written] (special/econ damages NOT required)
(b) (2) Slander [spoken] (special/econ damages required)
(c) (3) Slander pe se (affects profession/business, chastity of women/serious sexual misconduct, serious crime/felony [theft, rape, murder], loathsome disease like STD) (special/econ damages assumed)

Standard –
(a) Private Person (acted negligent to the truth) v. (b) Public Figure (acted with reckless/malicious [knew or should have known] disregard to the truth)

Defenses –

(1) Truth;

(2) Absolute Privilege: any statements made during official proceedings (court, legislature);

(3) Qualified Privilege: if saying something about a matter that appears necessary to protect D’s interest or public interest. E.g., character reference, letter of recommendation that hurts that person. Statements must be (1) honest & (2) reasonably believe it is true.

P’s defamation claim dies at P’s death

Question 54

Invasion of Privacy

Answer 54

(1) False Light: portrays P in a way that is not true (can be +/-; doesn’t necessarily hurt reputation);

(2) Appropriation: unauthorized use of P’s name or likeness for commercial advantage ($) (e.g., celebrity’s picture/name);

(3) Public disclosure of private matter (have an expectation of privacy);

(4) Intrusion upon seclusion: intentional & unreasonable (going thru files/garbage)

P’s Invasion of Privacy claim dies at P’s death

Question 55

Intentional Misrepresentation (Fraud/Deceit)

Answer 55

(1) Intentionally;

(2) Misrepresents material fact (knew or should have known could be false)

(3) intent to induce reliance

Intentional Omissions - Need duty to disclose material facts: (1) fiduciary relationship; (2) misled by prior statements; (3) mistaken about basic facts that D is aware of and can reasonably be expected to disclose

Harm = justifiable reliance. Not justifiable if representation was obviously false or the D was stating a lay opinion

Question 56

Negligent Misrepresentation (Fraud/Deceit)

Answer 56

(1) negligent;

(2) a false statement/omission;

(3) misleading person w special relationship [e.g., fiduciary duty];

(4) person relied;

(5) damages.

Question 57

Tortious Interference

Answer 57

(1) K between P and 3rd Party

(2) D knows about K

(3) D intentionally induces one party to breach

(4) causes damage

e.g., celebrity Ks/agents

Question 58

Malicious Prosecution

Answer 58

False criminal charge without probable cause; charged for some reason other than justice

Question 59

Dangerous Conditions on Land (Landlord’s Duties)

Answer 59

L generally not liable for harm that occurs on the leased premises.

However, L owes T & other foreseeable persons on premises (T’s guests) a duty to use reasonable care to ensure safety of common areas under L’s control.

Question 60

Mental Health Professionals

Answer 60

Duty to use reasonable care to identify dangerous patients & mitigate risk posed to others [affirmative]

Question 61

Special Relationship

Answer 61

An affirmative duty to use reasonable care to protect the other from harm arising w/in the scope of that relationship;

(1) Parent/Child;

(2) Hospital/Patient;

(3) Employer/Employee

(4) Shopkeeper/ invitees

(5) Common carrier/passengers

(6) Custodian/ Person in custody;

(7) Innkeeper/Guests

Question 62

Compensatory Damages

Answer 62

$ awarded to compensate P for actual initial loss/harm + normal consequences (e.g. subsequent physical, economic, emotional harm)

Intentional torts, reckless torts, negligence

Question 63

Nominal Damages

Answer 63

a trivial sum of $ (e.g., $1) awarded to vindicate P’s rights when no actual loss or harm occurred

intentional torts, reckless torts

Question 64

Punitive (Exemplary) Damages

Answer 64

$$ awarded to punish D for outrageous, malicious, or evil conduct & to deter the D & others from engaging in similar conduct in the future

Question 65

Wrongful Pregnancy/Conception

Answer 65

Parent’s claim for birth of healthy but unwanted child (e.g., bad vasectomy, defective contraceptive)

Question 66

Wrongful Birth

Answer 66

Parent’s claim for birth of unhealthy child; Doctor negligently failed to diagnose or inform parent of substantial risk that future child may suffer a birth defect and had parent known about the risk, the child would not have been conceived or born

Question 67

Transferred Intent

Answer 67

same intentional tort, different person

same person, different intentional tort

different intentional tort, different person

cannot apply to an animal, only a person (e.g., shooting a deer, hit a person –> no transferred intent bc must intend to hit a PERSON)

Question 68

Duty of Care (Borrowing Something)

Answer 68

Benefits Both - Reasonable Care

Benefits ONLY bailor - gross negligence

Benefits ONLY Bailee - extraordinary care (slight negligence)

Question 69

Custom

Answer 69

Evidence that D complied w or deviated from community or industry custom is not conclusive on the issue of negligence –> just a relevant factor

Question 70

Firefighter’s Rule

Answer 70

Applies to all professional rescuers (popo, firefighters, paramedics, lifeguards)

Bars professional rescuers from recovering for harm that resulted from the special dangers of their jobs (including negligent conduct that created the need for their professional intervention)

Question 71

Creation of Risk

Answer 71

An actor has a duty to use reasonable care to protect a victim if the actor knows or should have known that his conduct has exposed the victim to an unreasonable risk of harm from third parties. The actor may be directly liable for negligence or vicariously liable.

Question 72

Eggshell Skull Rule

Answer 72

A tortfeasor “takes the victim as he finds him.” The tortfeasor is liable for the full extent of the victim’s harm, even if the victim was unusual vulnerabnle

Question 73

Breach of Warranty (Products Liability) - Who has standing?

Answer 73

P must be in privity with D to have standing

Majority view - purchaser’s family or household

Minority View - anyone reasonably expected to be affected

Question 74

Injunction

Answer 74

Court order commanding or prohibiting a specified action

Question 75

Invalid Waivers

Answer 75

Against Public Policy

D
(1) is P’s employer
(2) is a hotel or common carrier
(3) is a public servant or service
(4) has substantially more bargaining power

Question 76

negation of consent

Answer 76

1. lack of capacity (youth, intoxication, or intellectual incompetence)
2. duress - threat
3. substantial mistake still = actual consent UNLESS affirmative misrepresentation/fraud by D or D knew of mistake

Question 77

Negligent Hiring

Answer 77

If there is a causal connection between the defendant’s negligence in hiring the worker, the worker’s employment or job duties, and the plaintiff’s harm

Question 78

Implied Warranty of Fitness for a particular purpose (products liability action against a seller)

Answer 78

1. seller knows the particular purpose for which the product is being purchased

AND

2. buyer relies on the seller’s judgment or skill in selecting a product suitable for that purpose