Torts

Question 1

intent

Answer 1

a person acts with intent when she acts for the purpose of causing a specific outcome or knowing that the outcome is substantially certain to occur

Intent can be satisfied by establishing that D acted with either
1. Purpose (specific intent) or
2. Knowledge to a substantial certainty (general intent)

Question 2

Cupable state of mind

Answer 2

negligence = Should have realized the risk of technical injury resulting

recklessness = Actually realized the risk of technical injury resulting

general intent = Had knowledge to a substantial certainty that technical injury would result

specific intent =Desired for technical injury to result
( D acts for the purpose of causing a specific outcome)

Question 3

battery

Answer 3

He acts w/ intent to cause harmful or offensive contact w/ the person of another person AND harmful or offensive contact with the person results, directly or indirectly

Harmful Contact: bodily contact resulting in any physical impairment of the condition of another’s body, or physical pain or injury or illness

Offensive Contact: UNPERMITTED, bodily contact offending a reasonable sense of personal dignity

Question 4

assault

Answer 4

An actor is liable to another for assault if she acts with intent to cause a harmful or offensive contact with the person of another person or to cause apprehension of imminent contact and the other is put in apprehension of imminent contact

Apprehension : not the same as fear, but may be in fear
Means anticipation or expectation AWARE
The consciousness that contact is imminent

Assault depends on the defendant’s apparent ability to carry out a battery, not the defendant’s actual ability

Question 5

false imprisonment

Answer 5

The intentional unlawful restraint, through force or threat of force, that confines someone to a bounded area, and the person is either aware of the confinement or is harmed by it

Question 6

intentional infliction of emotional distress

Answer 6

one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional disturbance to another

objective standard
where D’s purpose is to cause severe emotional distress, or the conduct is so E & O that severe emotional distress is substantially certain to be caused in a person of reasonable firmness

LIABILITY TO BYSTANDERS
Where E& O conduct is directed at 3rd person, the actor is liable if he intentionally or recklessly causes severe emotional distress
To a member of 3rd person’s immediate family who D knows is present at the time, whether or not the emotional distress results in bodily harm or
To any other person who D knows is present at the time, if the emotional distress results in bodily harm to P

Question 7

trespass to land

Answer 7

The intentional Unauthorized (unlawful unpermitted) entry of land upon another

One subject to liability to another for trespass, if intentionally
Enters land in possession of the other or causes a thing or 3rd person to do so
Remains on the land
Fails to remove from the land a thing which he is under duty to remove

Causing entry of a thing
Not necessary that foreign matter should be thrown directly and immediately upon the other’s land

Question 8

trespass to chattles

Answer 8

Intentional interference with P’s personal prop that warrants D pay damages

the chattel; if, but only if
He disposses the other of the chattel
The chattel is impaired as to its condition, quality, or value, or
The possessor is deprived of the use of the chattel for a substantial time or
Bodily harm is caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest
Have to just pay for damages not full fair market value

Question 9

conversion

Answer 9

intentional interference with P’s personal porp so serious that warrants D pay prop’s full value

Question 10

defenses to intentional torts

Answer 10

consent
self defense
defense of other ppl
defense of prop
recovery of prop
necessity
authority
discipline
justification

Question 11

consent

Answer 11

Defense to all intentional torts
Must have legal capacity
Exceeding scope results in liability

express consent, implied consent

ineffective consent
Person giving consent is incapable
Minor
Intoxicated
Mental incompetence
Person does not understand
Consent induced by fraud or substantial mistake

Question 12

privilege

Answer 12

The ability to act contrary to another individual’s legal right w/o that individual having legal redress for the consequences of that act

Affirmative defense: provides an independent reason why the plaintiff should not recover even though the plaintiff may be able to prove the prima facie claim

Question 13

self defense/ defense of others

Answer 13

abusive words must be accompanied by an actual threat of battery

The aggressor doctrine completely bars a P from recovery in tort for battery if the plaintiffs own actions were sufficient to provoke a reasonable person to use physical force for protection
Can regain right once retreat or communicated intention to abandon the altercation
Can use force if D uses excessive force

Question 14

defense of property

Answer 14

prop owner must prove

That the P was trespassing on his or her prop

That he or she reasonably believed that the force used on the trespasser was necessary to get the trespasser off or to keep the trespasser off his or her prop and

That he or she 1st asked the trespasser to leave and the trespasser refused or that he or she reasonably believed that any such attempt would have been useless or would have caused substantial harm

Prop owner can never use force that endangers human life or inflicts serious bodily harm

Burden on D to est. 2 factors
Use of force reasonable
Privilege existed
Past acts/threat of future harm insufficient
Amount of force reasonable
Need proper timing= no revenger

Question 15

person wrongfully deprived of chattel is privileged to use

Answer 15

use reasonable force to recover

limitations
Demand for return of chattel must be made prior to employing force , unless it reasonably appears that such request would be futile or dangerous

Prompt discovery of the dispossession and a prompt and persistent effort to recover it

no need to retreat, no use of deadly force to protect prop

Question 16

necessity defense to prop

Answer 16

Public Necessity = protect community as whole, absolute defense
D acts to prevent harm to public
D reasonably believes the action is necessary
The action is reasonable under the circumstances
D is not liable for harm caused to P’s prop

Private Necessity
If D acts to protect herself ( not the public at large) and D reasonably believes her action is necessary
Then D has the privilege, but she is liable for the harm she causes
Not liable for nominal/punitive damages

Question 17

negligence elements

Answer 17

Duty
Breach
Causation
Damages

Question 18

duty - negligence

Answer 18

An obligation recognized by law to conform to a standard of conduct to protect another from a foreseeable unreasonable risk of harm

Duty to exercise reasonable care when the actor’s conduct creates a risk of harm

Standard of care
To act as the reasonably prudent person in the same or similar circumstances

The risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done

Who owe a duty= foreseeable victims
duty of care to protect another from foreseeable unreasonable risk of harm; P has to be in zone of danger or no duty

Rescuers are foreseeable , come to center of action to aid injured
Danger invites rescue

Question 19

shopkeeper privilege

Answer 19

must be a reasonable belief as to the fact of theft

the detention must be conducted in a reasonable manner and only nondeadly force can be used

detention must be only for a reasonable period of time and only for the purpose of making an investigtaion

Question 20

physical disability standard of care

Answer 20

the conduct of an actor w/ a physical disability is negligent only if the conduct does not conform to that of a reasonably careful person w/ the same disability

Question 21

child standard of care

Answer 21

child not to be held to the same standard of conduct as an adult and being required to exercise only that degree of care which ordinarily is exercised by children of like age, mental capacity, and experience under the same or similar circumstances

Under age 5 no liability
Except to general rule when engaging in an activity normally undertaken only by adults, and for which adult qualifications are required

Question 22

skilled profession

Answer 22

Held to reasonable standard of average person within that profession with like skills

Question 23

Care for possessors

Answer 23

Activities conducted on land use ordinary reasonably prudent person standard of care

status of entrant
Unknown trespasser = no duty

known/ anticipated trespasser= duty if known man made deathtrap
Artificial condition on land
Highly dangerous (kill or seriously maime them)
Concealed from trespasser
Known by possessor

Licensee= duty if concealed from them and known by possessor
enters land with permission but without financial benefit to possessor , social guests

Invitee: duty if concealed from them & possessor knew or discovered through reasonable inspection
Enter land with permission for financial benefit of possessor, includes when open to public at large, grocery store

Firefighters & police officers = no duty owed for risks inherent to job, firefighter’s rule

Question 24

how satisfy premises liability duty

Answer 24

Eliminate hazard condition ( 3Rs)
Repair
Replace
Remove

Warn about hazard condition

Question 25

attractive nuisance doctrine

Answer 25

trespassing children
Reasonably prudent care under circumstances to protect from artificial hazards

P must show
- dangerous condition on the land that the owner is or should be aware of
- owner knows or should know that children might trespass on the land
- the condition is likely to cause injury (it is dangerous bc of the child’s inability to appreciate the risj)
- the expense of remedying the situation is slight compared with the magnitude of the risk

Question 26

if choose to act

Answer 26

Generally no duty to act affirmatively
If choose to act, must do so as reasonably prudent person under circumstances

No duty to rescue
If do need to do so reasonably or will be held liable

Exception where duty to act , duty owed is not duty to rescue, duty to act reasonably under circumstances
Relationship b/n parties
D caused peril

Good samaritan laws: insulate negligent rescuers from liability

Question 27

negligence per se

Answer 27

using a violation of a statute to establish a breach of duty of care

Duty of care
P is w/i protected class
Statute was designed to prevent the type of harm suffered by the P

Establishing requires
Legal: statute is legally appropriate
Factual; D violated statutory command

EXCEPTION: dont use
Compliance would have been more dangerous
Compliance would have been impossible

Question 28

common carrier, automobile, bailment standards of conduct

Answer 28

common carrier and innkeepers are held to a very high degree of care

guest of automobile driver is owed a duty of ordinary care

bailment
duties owed by bailee
- sole benefit of the bailor bailment = low standard of care
-sole benefit to bailee= high standard of care
- mutual benefit bailment= ordinary care standard

duties owed by bailor
- sole benefit of bailee= bailor must inform the bailee of known, dangerous defects in the chattel
- bailment for hire= bailor must inform bailee of chattel defects of which they are or should be aware

Question 29

negligent infliction of emotion distress

Answer 29

Near miss
Show negligence
P in zone of physocal danger
P suffers physical symptoms from distress

Bystander
D negligently injures 3rd party causing P emotional distress
Sho neglice
P and 3rdparty closely related
P present at the scene and observed event

Business relationship
P can recover if highly foreseeable that careless performance by D will produce emotional distress
Relationships
patient/ medical laboratory
customer/ funeralparlor

Question 30

breach

Answer 30

D failed to meet obligation and therefore committed a breach of the duty and standard of care

Can be affirmative act or omission
Standard of care: Act the way a reasonable prudent person would act under the circumstances
Reasonable prudent person guards against foreseeable unreasonable risk of harm

Breach is failing to act the way a reasonable prudent person would act

Question 31

Res Ipsa loquitur

Answer 31

Used by P w/o information about D’s breach

Requires P show
Accident causing injury is type that would not normally occur unless someone was negligent
Negligence is probably attributable to the D

Establishing res ipsa loquitur means no directed verdict

Question 32

factual cause

Answer 32

But for test: injury would not have occurred but for act or omission

D can refute this by showing that the plaintiff would have still been injured even if the act or omission did not occur

Question 33

merged causes

Answer 33

2 D acting independently each commit a breach combining into single indivisible harm

Substantial factor test
D liable if breach contributed in significant/ substantial way to ultimate injury
If breach would have been able to cause entire harm if it had been only breach, its a substantial factor

D’s held jointly and severally liable

Question 34

unascertainable cause

Answer 34

2 acts only one of which causes injury , but it is not known which one

Burden of proof shift to D and each must show that his negligence is not the actual cause

Question 35

proximate cause

Answer 35

Fairness
Limitation on liability

Foreseeability test
Was outcome foreseeable risk associated with breach
Guidelines
Passage of time
Geographic distance
Prior occurrence

Common foreseeable intervening forces
Medical malpractice
Negligence if rescuers
Protection r reaction forces to the defendant’s conduct
Disease or accident substantially caused by the original injury
may be foreseeable if D’s negligence increased the risk of harm from these forces
- negligent acts of third persons
- crimes and intentional torts of third persons
- acts of God

Question 36

Damages Types (6)

Answer 36

Nominal Damages- awarded when a tort has been committed against a P but the P has suffered no substantial loss or injury

Compensatory Damages- The primary means by which tort law restores a P to pre-tort status is permitting the recovery of compensatory damages

Pain and suffering

Medical expense
Must be reasonable
Reasonably necessary
Reasonable in amount
Treatment does not have too be successful
Future medical costs must be shown with sufficient certainty

Lost wages/ Lost earning capacity
Being deprived of the benefit of a relationship
Hedonic damages
Loss of ability to enjoy life
Not all courts permit, but may be element of pain and suffering
Can unconscious P recover hedonic damages

Punitive Damages- damages that are awarded above and beyond compensatory damages for the distinct purpose of punishing a defendant for engaging in particularly egregious conduct

Question 37

last clear chance

Answer 37

P claims that even though contributed should still recover

Process
P pleads LCC after D shows that P was contriibutorily negligent
Rule : if D has last opportunity to avoid injury, he must do so whether or not P’s conduct was negligent
P burden of proving last clear chance

Elements of last clear chance
P negligently placed himself in peril and could not escape
D knew or should have known of P’s peril
D had time and means to avoid the accident
D failed or refused to use every reasonable means he could toavoid injury to P
P was injured as a result of D’s failure

Question 38

assumption of the risks

Answer 38

is not a defense to intentional torts, but it is a defense to wanton and willful misconduct

Express assumption of the risks sounds in contract and occurs when the parties agree beforehand either in writing or orally that the P will relieve the D of his or her legal duty toward the P
bars a plaintiff from recovering if the plaintiff has voluntarily and expressly agreed to relieve the defendant from liability based on negligence. (usually in writing)
You have to know about the specific risk

Acknowledgement of a risk is not enough for an express assumption of risk the decedent must have agreed to assume the specific risk of injury caused by respondents

Implied assumption- P implicitly assumes known risks
P barred from recovering for injuries resulting from risk D created if D shows these elements of assaumption of risk
P actually knew of the SPECIFIC RISK
P appreciated the magnitude of the risk
P knowingly and voluntarily placed himself in a position to be injured by taking the risk

Question 39

contributory negligence vs . comparative negligence, release, satisfaction of a judgment

Answer 39

Pure form/ pure comparative : a P’s damages are reduced in proportion to the percentage negligence attributed to him , P recovers only to extent that she was not at fault
Modified form: P’s recover as in pure jurisdictions but only if the P’s negligence either does not exceed 50% or is less than 49 %

contributory negligence
P fails to exercise due care for own safety
All or nothing: If P contributes to own damages P gets nothing

Release = P surrenders claim
Common law rule : release of one tortfeasr releases all others who may be liable
A settling defendant is not entitled to give contribution, however, they can still sue for contribution of other defendants.
If one defendant settles, you subtract the settling amount from the full amount of damages, and thats what the other defendant would still owe
Covenant not to sue is a contract

Satisfaction of a judgment- acceptance of full compensation for damages happens once
Judgment is the amount owed to the plaintiff
Satisfaction is full payment

Question 40

liability for animals

Answer 40

Domesticated animals , including farm animals
Generally no strict liability
Exception if knowledge of animal’s dangerous propensities
Strict liability NOt available to trepasser

Wild animals
A possessor of wild animal is subject to liability to another for harm done by animal is toperson or prop of another if that harm results from a dangerous propernsity that is characteristic of wild animals of that class
Possessor of land not subject to strict liability to one who intentionally or negligently tresspssses upon the land
Or if invitee exposes themselves

Question 41

abnormally dangerous activities

Answer 41

Cant be reasonably safe even with ordinary care
Uncommon in area
Common examples
Explosives /Demolition
Dangerous chemical/ biological materials
Disposing waste
Nuclear energy/radiation

Question 42

products liability claim how brought under

Answer 42

Could be negligence claim
Under UCC- implied merchantability
Could be misrepresentation/fraud
Could be strict liability

Question 43

strict liability - products liability claim

Answer 43

D is merchant
Casual seller not merchant
Service provider not merchant
Commercial lessor is merchant
Everyone in distribution chain is merchant

Product is defective
Manufacturing defect= product emerges from manufacturing different from others and more dangerous than consumers would expect , departs from its intended design

Design defect:risks associated with product’s design outweigh utility of design
P show alternative design
Would have been safer
Was practical
Was economically feasible

Government saftey standars: product’s noncompliance w/ gov’t safety standards est that it is defective ,
compliance with safety is evidence that product is not defective

Information defect: hidden risks w/o adequate warnings/instructions
Adequate warning
Prominent
Comprehensible
Provide information about mitigating risk

Product was not substantially altered since leaving D’s control
Presumption that product moved in ordinary channels of distribution has no alteration

Foreseeable use of the product at the time of the injury
Foresseable does NOT mean intended or appropriate

Question 44

nuisance

Answer 44

Nuisance is an invasion of prop rights by tortious conduct ‘
Two types
Private
P will win if ct finds it be a substantial interference with the ability to use and enjoy the land

Public
Protects rights a person enjoys as member of public, something that
Threatens life
Promotes disease
Affects health of the community
Shocks public morales

Interference must be substantial

Common cases
Inconsistent land use cases
Spite cases
Gross inconsideration cases

Question 45

vicarious liability

Answer 45

One person commits a tortious act against a third party and another person will be liable to the third party for this act
employee/employer
agent/principal
partner/partner

Question 46

doctrine of respondeat superior

Answer 46

An employer can be held vicariously liable for an employee’s tortious actions if committed in the scope of his or her employment or done in furtherance of employers interest

A deviation or stepping away from the master’s business-a frolic or detour = minor departure , may preclude vicarious liability

intentional tortious conduct apart of employment
- employee is furthering business of the employer= removing rowdy crowd
- force authorized = bouncer
-friction is generated= bill collector

Question 47

independent contractor

Answer 47

A determination that an individual falls into an independent contractor category negates a P’sresort to the respondeat superior doctrine

An independent contractor is one who engages to perform a certain service for another according to his own methods and manner, free from control and direction of his employer in all matters connected w/ the performance of the service
Right to control the physical details of the work
One who contracts to do work according to his own methods and judgment

Employer is not liable for the torts of an independent contractor: Nondelegable duty
A person is liable for nondelegable duties whether negligent act is by employee or by independent contractor
Because activity involves peculiar risk of harm
Cannot avoid liability simply by delegating responsibility to someone else
Liability remains with person who attempts to delegate duty, because duty of care remains with person

Negligent hiring
Employer potentially directly liable for negligent hiring this is not vicarious liability
a principal is subject to direct lability to a third party harmed by an agents conduct when
the principal is negligent in selecting supervising, or otherwise controlling the agent

Question 48

joint enterprise

Answer 48

To establish Joint enterprise, the defendant must prove:
An agreement, express or implied, to enter into an undertaking
A community of interest in the objects and purposed to be accomplished in the undertaking and
Equal authority to control the undertaking

Question 49

negligent entrustment

Answer 49

Ownership or right to control imposes a duty to use reasonable care in deciding who can use your prop ( vehicle, weapon, or other dangerous object)

Reasonable care means controlling use of prop to protect others from unreasonable risk of harm

Question 50

joint tortfeasors

Answer 50

Each tortfeasor individual is liable for entire damages-

Plaintiff may seek full recovery for any or all of the tortfeasors

Burden of an insolvent, immune, or missing defendants
is on defendants (cupabale parties), not on plaintiff

Joint and several Basis for imposing joint and several liability:
Defendants acted in concert’ or
defendants failed to perform a common duty or
defendants acting separately caused indivisible harm *

Question 51

Getting $$$ from other D

Answer 51

Contribution
Right of D 1 who has discharged a common liability to recover from D 2 but only to recover D 2’s portion of the liailiabilty

Pro rata share - every D pay equal amount in damages
Before D I may get contributions from D 2 D2 liability to the plaintiff must be est,

Indeminity
allows someone who is w/o fault compelled by operation of law to defend himself against the wrongful act of another
If a D has a right of indemnity, then the D can sue the person against whom the D has that right for the full amount paid in satisfaction of the Ps claim

Question 52

defamation

Answer 52

To create liability for defamation there must be
A false and defamatory statement concerning another
An unprivileged publication to a 3rd party
Fault among at least to negligence on the part of the publisher and
Either the actionability of the statement irrespective of special harm or the existence of special harm caused by the publication

Question 53

defamatory requirements (5)

Answer 53

Defamatory statement specifically identifying P
Defamatory statement= statement adversely affecting reputation
Referring to group?
Small group everybody has claim
Large group: no one has claim

Published to 3rd party
communication by any method to one or more persons who can understand the meaning
Suggestive comments, words, pictures, memes, etc. can all be publications- not just newspapers
Doesn’t have to be intentional

Falsity

Fault
Degree aware statement false
Private person= negligence
Public figure: knowledge or reckless disregard
Malice
public figures have achieved such pervasive fame or notoriety that they become public figures for all purposes in all contexts. Those who are always in the spotlight and well known to the public

Damages
Libel presumed damages
P must prove economic harm for slander other than slander per se

Question 54

libel

Answer 54

more permanent form of defamtiomn
Historically written or printed words
Modern: any physical form
More permanent

Question 55

slander

Answer 55

Communication of defamatory matter by spoken words, transitory gestures, or any form of communications other than those that constitute libel

Slander per se
Adversely reflect on P’s business or profession
State that P has committed a serious crime , crimes involving moral turpitude
Impute that P has engaged in serious sexual misconduct
State P has a loathsome dises

Statement of opinion is not defamatory
Actionable only if implies a specific fact

Name calling is not defamatory
Defamation of a deceased person is not actionable

Question 56

defenses to defamation (3)

Answer 56

Consent
Truth
Privilege
-Absolute
Communication b/n spouses
Remarks made during judicial proceedings, by legislators during proceedings by federal executive officials

-Qualified
Arises when there is a public interest in encouraging candor
Only applies to statements made in good faith and relevant in scope
D has an important countervailing interest
Such as a duty, as long as statement is within scop of the duty
Statement made in good faith
Court decides whether the privilege exists
If D had privilege, P must show D made the statement with actual malice

-Common interest privilege
Qualified privilege for statements made to colleagues within same organization

Question 57

appropriation of P’s picture or name

Answer 57

Unauthorized use of P’s picture of name for D’s commercial advantage

Liability generally limited to advertisements or promotions of products or services

Economic benefit to D by itself is not sufficient

Question 58

intrusion of P’s affairs or seclusion

Answer 58

Invasion of P’s seclusion in way that would be highly offensive to reasonable person

Have to be in place where there is an expectation of privacy

Question 59

publication of facts placing in P in a false light

Answer 59

Dissemination of material falsehood about P that would be highly offensive to reasonable person

Emotional damages

If matter of public interest = actual malice on D’s part must be proved

Question 60

public disclosure of private facts about the P

Answer 60

Widespread dissemination of confidential info about P not of legitimate concern to public and highly offensive to reasonable person

Newsworthiness exception

Disclosure must be of a truly confidential fact

Question 61

affirmative defenses to privacy torts

Answer 61

Consent

absolute/qualified privilege for false light / disclosure claims

Question 62

Intentional Misrepresentation ( Fraud, Deceit)

Answer 62

misrepresentation of a material past or present fact

scienter= knew or believed it was false or that there was no basis for the statement

intent to induce the P to act or refrain from acting in reliance upon the misrep

caustion

justifiable reliance

damages

no defenss to intentional misrepresentation

Question 63

interference w/ business relations

Answer 63

existence of a valid contractual relationship b/n P and 3rd pty or valid business expectancy

D’s knowledge of the relationship or expectancy

intentional interference by the D inducing a breach or termination of the relationship or expectancy

damages