Torts

Question 1

To establish a prima facie case for any intentional tort, the plaintiff must prove:

Answer 1

1) An act by the D
2) Intent by the D
3) Causation of the result to the plaintiff from the D’s act

Question 2

What is the intent requirement for intentional torts?

Answer 2

The intent to bring about the forbidden consequences that are the basis of the tort.

The D does not need to intend the specific injury that results.

Question 3

The transferred intent doctrine applies when the D intends to commit a tort against one person but instead:

Answer 3

1) Commits a different tort against that person;

2) Commits the same tort as intended but against a different person; OR

3) Commits a different tort against a different person.

Question 4

Transferred intent doctrine may be invoked only if both the tort intended and the tort that results are one of the following:

Answer 4

1) Assault

2) Battery

3) False Imprisonment

4) Trespass to Land

5) Trespass to Chattels

Question 5

What are the elements of Battery?

Answer 5

1) Harmful or offensive contact; AND

2) Contact must be with the plaintiff’s person

Question 6

What are the elements of Assault?

Answer 6

1) Act by the D creating a reasonable apprehension in the plaintiff; AND

2) Of an immediate battery (harmful or offensive contact to the plaintiff’s person)

Fear is not required.

Words alone are not sufficient.

Question 7

What are the elements of False Imprisonment?

Answer 7

1) An act or omission on the part of the D that confines or restrains the plaintiff; AND

2) The plaintiff must be confined to a bounded area.

Question 8

What are the elements of Intentional Infliction of emotional distress?

Answer 8

1) An act by the D amounting to extreme and outrageous conduct;

2) The intent on the part of D to cause P to suffer severe emotional distress (physical injury is unnecessary, mental anguish is sufficient), or recklessness as to the effect of defendant’s conduct;

3) Causation; AND

4) Damages

Question 9

Regarding emotional distress, what is extreme and outrageous conduct?

Answer 9

Conduct that transcends all bounds of decency. Conduct that is not normally outrageous may become so if:

1) It is continuous in nature

2) It is committed by a certain type of D (common carriers or innkeepers may be liable even for mere “gross insults”); OR

3) It is directed toward a certain type of plaintiff (young children, elderly persons, someone who is pregnant).

Question 10

When the D’s conduct is directed at a third person, and the plaintiff suffers severe emotional distress because of it, the plaintiff may recover by showing either the prima facie case elements of emotional distress OR that:

Answer 10

1) They were present when the injury occurred;

2) The distress resulted in bodily harm or the plaintiff is a close relative of the third person; AND

3) The D knew these facts.

Question 11

What are the elements to Trespass to Land?

Answer 11

1) Physical invasion (may be a person or object; if intangible matter enters, the Plaintiff may have a case for nuisance, but not for trespass since those things are not physical); AND

2) Of the plaintiff’s real property; AND

3) Causation.

Question 12

What are the elements to Trespass to Chattels?

Answer 12

Act by the D that interferes with the plaintiff’s right of possession in a chattel

Question 13

What are the two types of interference re Trespass to chattels?

Answer 13

1) Intermeddling (directly damaging the chattel); OR

2) Dispossession (depriving the plaintiff of their lawful right of possession of the chattel)

Question 14

What are the elements to Conversion?

Answer 14

1) Act by the D that interferes with the plaintiff’s right of possession in a chattel; AND

2) Interference is serious enough in nature or consequence to warrant that the D pay chattel’s full value.

Question 15

How do you distinguish between Trespass to chattels & Conversion?

Answer 15

The degree of interference by the D.

Small harm = Trespass to chattel

Big harm = Conversion

Question 16

What are three defenses to intentional torts?

Answer 16

1) Consent

2) Necessity

3) Protective Privileges

Question 17

What is the Express (Actual) Consent Defense?

Answer 17

The D is not liable if the plaintiff expressly consents to the D’s conduct.

Question 18

What are the exceptions to the Express (Actual) Consent Defense?

Answer 18

1) Mistake will undo express consent IF the D knew of and took advantage of the mistake;

2) Consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter; AND

3) Consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation.

Question 19

What is the Implied Consent defense?

Answer 19

Apparent consent is that which a reasonable person would infer from custom and usage OR the plaintiff’s conduct.

Question 20

Regarding the protective privileges defense of self others, or property, ask the following three questions:

Answer 20

1) Is the privilege available? These privileges apply only for preventing the commission of a tort. Already committed torts do not qualify.

2) Is a mistake permissible as to whether the tort being defended against (battery, trespass, etc.) is actually being committed?

3) Was a proper amount of force used?

Question 21

A shopkeeper has a privilege to detain a suspected shoplifter for investigation. For the privilege to apply, the following conditions must be satisfied:

Answer 21

1) There must be a reasonable belief as to the fact of theft;

2) The detention must be conducted in a reasonable manner and only nondeadly force can be used;

3) The detention must be only for a reasonable period of time and only for the purpose of making an investigation.

Question 22

What is the necessity defense?

Answer 22

A person may interfere with the real or personal property of another when it is reasonably and apparently necessary in an emergency to avoid injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it.

Necessity defense is only applicable to property torts.

Question 23

What are the two types of necessity defenses?

Answer 23

1) Public Necessity - A D can raise public necessity as a defense if they acted to avert an “imminent public disaster.”

2) Private Necessity - When the action was to prevent serious harm to a limited number of people. The actor must pay for any injury they cause (unless the act was to benefit the property owner)

Question 24

What are the elements of a prima facie case of negligence?

Answer 24

1) A duty on the part of the D to conform to a specific standard of conduct for protection of the plaintiff against an unreasonable risk of injury;

2) A breach of that duty by the D;

3) The breach is the actual and proximate cause of the plaintiff’s injury; AND

4) Damages.

Question 25

A duty of care is owed only to:

Answer 25

1) Foreseeable plaintiffs - the class of persons who were foreseeably endangered by the D’s negligent conduct.

Question 26

What is the Reasonably Prudent Person standard of care?

Answer 26

An objective standard, measured against what the average person would do.

A D’s mental deficiencies and inexperience are NOT taken into account.

Question 27

There are special standards of care based on the type of defendant. To whom do these special standards apply to?

Answer 27

1) Children;

2) Professionals; AND

3) Possessors of Land;

Question 28

What is the special standard of care for children?

Answer 28

Children are held to the standard of a child of like age, intelligence, and experience.

This is a subjective test.

Children engaged in potentially dangerous adult activities may be required to conform to an “adult” standard of care

Question 29

What is the special standard of care for professionals?

Answer 29

professional is required to possess the knowledge and skill of an AVERAGE member of the profession or occupation in good standing.

D is no longer compared to an imaginary objective standard. D is compared to the average member of the profession

Question 30

What is the special standard of care for possessors of land?

Answer 30

It depends.

The duty owed a plaintiff on the premises for dangerous conditions on the land depends on the plaintiff’s status as

unknown trespasser;

known trespasser;

licensee; OR

invitee.

Question 31

What is the special standard of care for unknown trespassers?

Answer 31

No duty is owed to undiscovered trespassers.

Question 32

What is the special standard of care for Known trespassers?

Answer 32

As to discovered or anticipated trespassers, the land possessor must warn of or make safe any conditions that are:

1) Artificial (built by humans);

2) Highly dangerous (involving risk of death or serious bodily harm);

3) Concealed from trespasser; and

4) Known to the land possessor in advance.

Question 33

What are licensees?

Answer 33

A licensee is one who enters onto the land with the possessor’s permission for their own purpose or business, rather than for the possessor’s benefit.

Social guests are considered licensees.

Question 34

As to licensees, the land possessor has a duty to warn of or make safe hazardous conditions that are:

Answer 34

1) Concealed to the trespasser; and

2) Known to the land possessor in advance.

Question 35

What are Invitees?

Answer 35

Invitees enter onto the land in response to an invitation by the possessor of the land. They enter for a purpose connected with the business of the land possessor.

Question 36

The landowner owes a duty to invitees regarding hazardous conditions that are:

Answer 36

1) Concealed to trespasser; AND

2) Known to the land possessor in advance or could have been discovered by a reasonable inspection.

Question 37

What is a statutory standard of care?

Answer 37

A clearly stated specific duty imposed by a statute providing for criminal penalties may replace the more general common law duty of due care if:

1) The plaintiff is within the protected class; AND

2) The statute was designed to prevent the type of harm suffered by the plaintiff.

Question 38

In general, no one has a legal duty to act. However, there are two exceptions:

Answer 38

1) Special relationship between parties (parent-child);

2) Peril due to on conduct - One has a duty to assist someone they have negligently or innocently placed in peril.

Question 39

Near Miss Cases - The duty to avoid negligent infliction of emotional distress may be breached when the D creates a foreseeable risk of physical injury to the plaintiff. The plaintiff usually must satisfy two requirements to prevail:

Answer 39

1) The plaintiff must be within the “Zone of Danger.”; AND

2) The plaintiff must suffer physical symptoms from the distress.

Question 40

What is a breach of duty?

Answer 40

When the D’s conduct falls short of that level required by the applicable standard of care owed to the P.

Question 41

Under Res Ipsa Loquitur, the very occurrence of an event may tend to establish a breach of duty. The doctrine of res ipsa loquitur requires the plaintiff to show that:

Answer 41

1) The accident causing the injury is a type that would not normally occur unless someone was negligent;

2) The negligence is probably attributable to the D.

Question 42

Once negligent conduct is shown, the plaintiff must show that the conduct was the cause of their injury. For liability to attach, the P must show both:

Answer 42

1) Factual cause (actual cause); AND

2) Proximate cause.

Question 43

What is the “But For” Test?

Answer 43

An act or omission is a factual cause of an injury when the injury would not have occurred “BUT FOR” the act or omission.

A D can refute this by showing that the P would have still been injured “even if” the act or omission did not occur.

Question 44

Merged causes - substantial fact test. What is it?

Answer 44

Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, the D’s conduct is the cause in fact if it was a SUBSTANTIAL factor in causing the injury.

Question 45

What is the Unascertainable causes approach for factual causation?

Answer 45

This test applies when there are two acts, only one of which causes injury, but it is not known which one. The burden of proof shifts to defendants, and each must show that his negligence is not the actual cause.

Question 46

What is the doctrine of proximate cause?

Answer 46

A limitation of liability and deals with liability or nonliability for unforeseeable or unusual consequences of one’s acts.

Question 47

Under the general rule, what is the scope of foreseeable risk?

Answer 47

A D generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts.

This is a Foreseeability test.

Question 48

The D is liable when their negligence caused a foreseeable reaction from an intervening force or created a foreseeable risk that an intervening force would harm the plaintiff. The following intervening forces that are normal responses or reactions to the situation created by the D’s negligent act are almost ALWAYS foreseeable:

Answer 48

1) Medical malpractice;

2) Negligence of rescuers;

3) Protection of reaction forces to the D’s conduct;

4) Disease or accident substantially caused by the original injury.

Question 49

What are superseding forces?

Answer 49

Intervening forces that produce unforeseeable results that are generally deemed unforeseeable and superseding.

Superseding forces break the causal connection between the D’s initial negligent act and the plaintiff’s ultimate injury, thus relieving the D of liability.

Question 50

What is the “Eggshell-skull” plaintiff rule?

Answer 50

The D is liable for ALL damages, including aggravation of an existing condition, even if the extent of severity of the damages was unforeseeable.

Question 51

What are the elements of strict liability for products liability?

Answer 51

The plaintiff must show:

1) The D is a merchant;

2) The product is defective;

3) The product was not substantially altered since leaving the D’s control; AND

4) The P was making a foreseeable use of the product at the time of the injury.

Question 52

There are three types of product defects. What are they?

Answer 52

1) Manufacturing defect - a product emerges from manufacturing different from and more dangerous than the other properly made products

2) Design defect - when all products of a line are the same but have dangerous propensities. P must show that the D could have made the product safer, without serious impact on the product’s utility or price (“Feasible Alternative”) approach.

3) Information Defect - A product may be defective as a result of the manufacturer’s failure to give ADEQUATE instructions or warnings as to the risks involved in using the product.

Question 53

What is nuisance?

Answer 53

A nuisance is an invasion of property rights by tortious conduct.

It must be offensive, inconvenient, or annoying to an AVERAGE person in the community.

It will not be characterized as substantial if it is merely the result of plaintiff’s hypersensitivity.

Question 54

What is a Private Nuisance?

Answer 54

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

Question 55

What is a Public Nuisance?

Answer 55

An act that unreasonably interferes with the health, safety, or property rights of the community.

Question 56

What is vicarious liability?

Answer 56

The active tortfeasor commits a tortious act against a third party and another person (the passive tortfeasor) will be liable to the third party for this act.

Question 57

What is the doctrine of respondeat superior?

Answer 57

An employer will be vicariously liable for tortious acts committed by their employee if the tortious acts occur within the scope of the employment relationship.

Question 58

It is usually held that intentional tortious conduct by employees is not within the scope of employment. What are the exceptions:

Answer 58

1) The employee is furthering the business of the employer (remove customers because they are rowdy);

2) Force is authorized in the employment (a bouncer); AND

3) Friction is generated by the employment (i.e., bill collector).

Question 59

In general, the principal will not be vicariously liable for the tortious act of an independent contract (the agent). There is one exception:

Answer 59

For situations where a duty is simply nondelegable due to public policy considerations.

For example, the duty of a business to keep its premises safe for customers.

Question 60

What is Joint and Several Liability?

Answer 60

When 2 or more negligent acts combined to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable (liable to the plaintiff for the entire damage incurred).

If the injury is divisible, each defendant is liable only for the identifiable portion.

Question 61

What are the elements of Defamation?

Answer 61

1) A defamatory statement that specifically identifies the plaintiff;

2) Published to a third party (a communication to a third party who understands it, but it must be made intentionally or negligently);

3) Falsity of the defamatory language;

4) Fault on the part of the D; AND

5) Damage to the plaintiff’s reputation.

Question 63

What is a defamatory statement?

Answer 63

A defamatory statement is one tending to adversely affect one’s reputation.

A statement of opinion is actionable only if it appears to be based on specific acts, and an express allegation of those facts would be defamatory.

Question 64

Public official or figure must prove actual malice in defamation cases. What is actual malice?

Answer 64

1) Knowledge that the statement was false; OR

2) Reckless disregard as to whether it was false.

This is a subjective test.

Question 65

Private persons must prove ___________ if matter of public concern.

Answer 65

Negligence.

Question 66

What is Libel?

Answer 66

Libel is a defamation that is embodied in permanent form.

Question 67

What is Slander?

Answer 67

Slander is spoken defamation.

Question 68

The plaintiff must prove special damages, unless the defamation falls within one of the slander per se categories. These are defamatory statements that:

Answer 68

1) Adversely reflect on the plaintiff’s business or profession;

2) State that the plaintiff has committed a serious crime;

3) Impute that the plaintiff has engaged in serious sexual misconduct; OR

4) State that the plaintiff has a loathsome disease.

Question 69

What are the damages for conversion?

Answer 69

Fair market value of the property AT the time of the conversion.

Question 70

Is mistake of ownership a valid defense to trespass to land?

Answer 70

NO

Question 71

Is the intent to cause harm or injury necessary for any intentional tort claim?

Answer 71

NO

Question 72

For a negligent infliction of emotional distress claim, there are two exceptions where damages do not have to been shown:

Answer 72

1) Mishandling of a corpse; AND

2) False report of a death.

Question 73

For a negligent infliction of emotional distress claim, must the plaintiff show physical injury due to the negligent act?

Answer 73

YES

Question 74

May you use deadly force to protect property?

Answer 74

NO; only non-deadly force is fine.

Question 75

To establish a negligence per se claim, remember the two Ps:

Answer 75

1) Protect a class

2) Prevent a particular harm

Question 76

What are the two main duties a landowner owes to an Invitee?

Answer 76

1) Duty to inspect; AND

2) Duty to make safe.

Question 77

True or False, Under a pure comparative model, a plaintiff may recover their damages even if their fault is greater than the defendant’s fault.

Answer 77

TRUE

Question 78

When two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortfeasor is jointly and severally liable to the plaintiff for the entire damages incurred. Joint and several liability applies even though each tortfeasor acted entirely independently.

However, each tortfeasor will be liable only for the identifiable portion IF:

Answer 78

1) the actions are independent,

2) plaintiff’s injury is divisible, and

3) it is possible to identify the portion of injuries caused by the defendants.

Question 79

How do you establish a prima facie case for Invasion of privacy involving public disclosure of private facts about the plaintiff?

Answer 79

Plaintiff must show that the publication was of private information about the plaintiff and that its public disclosure would be highly offensive to a reasonable person.

There is no liability for publication of matters occurring in a public place.

Question 80

How does a Defendant breach a duty to avoid negligent infliction of emotional distress?

Answer 80

A D breaches a duty to avoid negligent infliction of emotional distress when he 1) creates a foreseeable risk of physical injury to the plaintiff through causing a threat of 2) physical impact that leads to emotional distress.

Damages are recoverable ONLY IF the D’s conduct causes some physical injury.

Plaintiff must be in the zone of danger!

Question 81

Trespass to chattel requires 4 elements. What are they?

Answer 81

1) An act of D that interferes with plaintiff’s right of possession in the chattel (dispossession of or damage to the chattel);

2) Intent to perform the act bringing about the interference with plaintiff’s right of possession;

3) Causation; AND

4) Damages.