Torts

Question 1

Transferred Intent Doctrine

Answer 1

An intent to commit a tort against on person can be transferred to the committed tort or to the actual injured person.

Question 2

What torts does the transferred intent doctrine apply to?

Answer 2

Assault
Battery
False Imprisonment
Trespass to Land
Trespass to Chattels

Question 3

Assault

Answer 3

D intended to and acted by causing imminent apprehension in the creating imminent apprehension of harmful or offensive contact to the plaintiffs person. Imminent apprehension cannot be from words alone.

Question 4

Battery

Answer 4

D intended to and acted and this act caused harmful or offensive contact to the plaintiff’s person. Contact isn’t harmful or offensive if it’s normal socially acceptable behavior. A person includes things connected to the person. If there is consent there is no battery

Question 5

When are you not allowed to use force in intentional torts?

Answer 5

To regain real property after being tortiously dispossessed - can’t self-help. Additionally, can’t use force against someone who has the privilege to be on the property.

Question 6

Shopkeepers privilege

Answer 6

A shopkeeper can avoid liability for false imprisonment when detaining a suspect he reasonably believes has committed theft. The shopkeeper is required to conduct the detention in a reasonable manner and only keep the suspect for a reasonable amount of time.

Question 7

Request to Desist

Answer 7

A landowner USUALLY must make a request to desist before defending. It is only not required when the circumstances make it clear a request would be futile or dangerous.

Question 8

Recapture of Chattles Defense

Answer 8

Force can be used to recapture a chattel in hot pursuit when an item is wrongfully obtained. If an item was obtained lawfully, only peaceful means can be used to recover the chattels.

Question 9

Amount of force to defend property

Answer 9

Reasonable force, not deadly

Question 10

Privilege of Necessity

Answer 10

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

Question 11

How to prove Breach of duty

Answer 11

Direct or circumstantial evidence, custom or usage, violation of an applicable statute (negligence per se), and res ipsa loquitur.

Question 12

Negligence per se

Answer 12

A statute applies when the specific duty imposed by the statute is clearly stated and the P is in the class intended to be protected by the statute and the statute was designed to prevent the type of harm suffered. Common law says the statute provides a criminal penalty.

Question 13

Negligence per se exception

Answer 13

compliance with the statute would cause more danger than a violation or compliance was beyond the D’s control

Question 14

Licensee

Answer 14

One who enters the land with express or implied permission with benefit of their own not to the land owner. This is a social guest for example. The owner owes a licensee the duty to warn of or make safe a dangerous condition known to the owner that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover. The owner has no duty to a licensee to inspect for defects nor to repair known defects.

Question 15

Invitee

Answer 15

One who enters the land with express or implied permission with benefit to the land owner. This is a customer for example. The duty owed is to inspect and reasonably make safe dangerous conditions. A person will lose his status as an invitee if he exceeds the scope of the invitation if he goes onto a portion of the property where his invitation cannot reasonably be said to extend.

Question 16

Comparative Contribution

Answer 16

Each defendant found liable is liable for the full amount owed to P. They then have contribution rights from the other parties. If one party is judgment proof the rest of the parties are still liable for the full amount

Question 17

Conversion

Answer 17

(i) an act by the defendant interfering with the plaintiff’s right of possession in the chattel, (ii) intent to perform the act bringing about the interference with the plaintiff’s right of possession, (iii) causation, and (iv) damages-an interference that is serious enough in nature or consequence to warrant that the defendant pays the full value of the chattel.

Even if the conduct is wholly innocent, liability may attach where the interference is serious in nature.

Accordingly, accidentally causing damage to another’s chattel may constitute a conversion when the damage occurred while the defendant was using the chattel without permission

Question 18

Intent

Answer 18

If a person knows with substantial certainty the consequences of his action will result in the action necessary for the tort.

Question 19

Negligent Infliction of Emotional Distress

Answer 19

The defendant breaches a duty to the plaintiff by creating a risk of physical injury and the plaintiff suffers emotional distress as a result. The plaintiff must be in the zone of danger and must suffer physical symptoms.

The plaintiff bystander may be able to recover without proving these requirements in special situations where the defendant’s negligence creates a great likelihood of severe emotional distress

Question 20

Res Ipsa Loquitur

Answer 20

Where the facts are such as to strongly indicate that the plaintiff’s injuries resulted from the defendant’s negligence, the trier of fact may be permitted to infer the defendant’s liability. The plaintiff must establish that (i) the accident causing the injury is the type that would not normally occur unless someone was negligent, and (ii) an accident of this type would ordinarily be due to negligence of someone in this defendant’s position. Must show the D had absolute control.

Question 21

Res Ipsa Loquitur

Answer 21

P must establish that the accident that caused her injury would not have occurred unless someone was negligent. If established it goes to the jury, can’t get a directed verdict.

Question 22

Circumstantial Evidence Doctrine

Answer 22

Under Res Ipsa Loquitur, where the fact that a particular injury occurred establishes breach of duty owed. Need to show the instrumentality that caused the injury was exclusively in D’s control. D does not need to have actual possesion

Question 23

Proximate Cause

Answer 23

Not liable for things that are unforeseeable, liable for things that are foreseeable.

Question 24

Negligence

Answer 24

Duty
Breach
Causation
Damages

Question 25

Subsequent Accident Liability

Answer 25

Even though the subsequent accident is what caused further damages to the P, it is foreseeable that someone injured could be injured more bc they are on crutches. D is still liable for the whole thing

Question 26

Private Nuisance

Answer 26

substantial and unreasonable interference with another person’s use or enjoyment of property. The interference must be offensive, inconvenient, or annoying to the average person in the community.

Question 27

Strict Liability for Animals

Answer 27

Wild animals, Domestic animals, and trespassing animals. Strict liability attaches with domestic animals if the owner knows of its danger. You won’t be strictly liable if the animal is acting within its normal propensities as a domestic animal, but you will if its a wild animal. Strict liability attaches to harm caused when trying to flee from the animal.

Question 28

Strict Liability for Abnormally Dangerous Activities

Answer 28

An activity is abnormally dangerous when it creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors. It also cannot be a common act in the community. It does not matter if the D did not see the harm, it just matters if the harm was foreseeable in general.

Question 29

Product Liability based on Strict Liability

Answer 29

You must prove that the defendant is a commercial supplier, the defendant produced or sold a product that was defective when it left the defendant’s control, the product was the actual and proximate cause of the injury and there were damages. There is no requirement for suppliers to inspect. Recovery is only for economic loss, bystanders must be foreseeable. Need to establish that the item was dangerously defective. Warnings must include a commercial supplier to anticipate reasonably foreseeable uses even if they are misuses of the product.

A plaintiff’s misuse of a product will not prevent recovery if the misuse was reasonably foreseeable, which is a question of fact for the jury. Because the jury could find that the motorist letting herself be distracted while operating a “self-driving” vehicle is reasonably foreseeable, the manufacturer’s motion should be denied.

Question 30

Product Liability based on Negligecne

Answer 30

Negligent conduct by D that leads to supplying a defective product, recovery is only for economic loss, and bystanders must be foreseeable.

Question 31

Superseding cause in a strict product liability case

Answer 31

Retailer who actually discovered dangerous defect and took no action can cut off manufactures liability

Question 32

Respondeat Superior

Answer 32

An employer is liable for tortious acts committed by his employees if the tortious act occurs within the course and scope of the employment. If outside of the course and scope it could be within the relationship if it is authorized in the employment or it is an action motivated to serve the employer. Doesn’t apply to independent contractors. if the tortfeasor has gone off on a frolic of his own, he is no longer acting within the scope of the partnership and the other partners will not be liable. On the other hand, a minor deviation from the partnership activity will not take it outside of the scope of the partnership’s affairs.

Question 33

Independent Contractor Employer Liability

Answer 33

Vicariously liable if the independent contract is engaged in inherently dangerous activates or the duty because of public policy considerations is nondelegable.

Question 34

Employer Duty

Answer 34

An employer has a duty to all those who may foreseeably come into contact with his employee to exercise due care in the hiring, supervision, and retention of the employee.

Question 35

Duty to Known trespassers HACK

Answer 35

to warn or make safe any conditions that are
Highly Dangerous
Artificial
Concealed
Known to land possessor

Question 36

Indemnity Torts

Answer 36

Shifting liability to tortfeasors of the entire loss is available in vicariously liable situations. Available when there is a contractual promise to indemnify; (ii) there is a special relationship between the defendants that would allow for vicarious liability; or (iii) the defendant is a supplier in a strict products liability case who is liable to an injured customer, thus giving the supplier a right of indemnification against previous suppliers in the distribution chain

Question 37

But For Test

Answer 37

To show actual cause. Whether the injury would not have occurred but for the act or omission. Can’t be used when there are multiple reasons for the injury.

Question 38

When there are two causes, how do you determine actual cause?

Answer 38

If its merged, meaning that two acts bring about an injury and that either act alone would have sufficed look at which one was a substantial factor. If it’s unascertainable between the defendants, the burden shifts to the negligent actors to show that he wasn’t the cause.

Question 39

Nuisance

Answer 39

an invasion of private property rights by conduct that is either intentional negligent or subject to strict liability.

Question 40

Attractive Nuisance

Answer 40

Landowner has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children, including trespassing children, created by artificial conditions on his property.

Question 41

Duty to help someone injured

Answer 41

No duty to help. A duty attaches only if you caused harm, there is a special relationship, if you started helping you can’t stop needing to help as a reasonably prudent person would. Can’t act negligently

Question 42

Exception to Defamation - Privilege of legislator

Answer 42

Remarks made by either federal or state legislators in their official capacity during legislative proceedings are absolutely privileged, can read things into the record on the floor.

Question 43

Pure comparative negligence jurisdiction

Answer 43

allows a plaintiff to recover no matter how great her negligence is. amount is not reduced by benefits received from collateral sources like health insurance.

Question 44

Duty to unknown trespasser?

Answer 44

None

Question 45

Invasion of Privacy

Answer 45

publication of private information about P and that its public disclosure would be highly offensive to a reasonable person. (i) appropriation by the defendant of the plaintiff’s picture or name for the defendant’s commercial advantage; (ii) intrusion by the defendant on the plaintiff’s affairs or seclusion; (iii) publication by the defendant of facts placing the plaintiff in a false light; and (iv) public disclosures of private facts about the plaintiff by the defendant.

Question 46

Trespass to Chattels

Answer 46

an act of the defendant that interferes with P’s right of possession in the chattel and intent to perform the act bringing the interference causes and damages. The act can be dispossession or damage to the possession. Doesn’t need to intend to steal, just to take the item.

Question 47

False Imprisonment

Answer 47

D intentionally confined or restrained in a bounded area. P must not feel free to leave. Examples are threats of force, false arrests, and failure to provide a means of escape when there is a duty to do so

Question 48

Intentional Infliction of Emotional Distress

Answer 48

IIED. Intentional infliction of emotional distress requires (i) an act by the defendant amounting to extreme and outrageous conduct; (ii) intent to cause severe emotional distress or recklessness as to the effect of the defendant’s conduct; (iii) causation; and (iv) damages. “Outrageous conduct” is extreme conduct that transcends all bounds of decency.

Question 49

Trespass to Land

Answer 49

The tort of trespass to land requires: (i) an act of physical invasion of the plaintiff’s real property by the defendant, (ii) intent by the defendant to bring about a physical invasion of the property, and (iii) causation. The intent required is the intent to enter on a particular piece of land, rather than intent to trespass. Also, it is not necessary that the defendant personally enter the land. It is sufficient if the defendant’s act or something set in motion thereby causes a physical invasion of the property.

Question 50

Defenses to Intentional Torts

Answer 50

Consent
Self Defense
Defense of Others
Defense of Property
Necessity

Question 51

Defense of Consent

Answer 51

Consent is either expressed or implied, the P must have the capacity and D can’t exceed bounds.

Question 52

Defense of Self Defense/Defense of Others/Defense of OThers

Answer 52

Must reasonably believe a tort is being or about to be committed against himself, a third person, or his property. Only Reasonable force may be used. Can’t use deadly force to protect property.

One may act in self-defense not only where there is real danger but also where there is a reasonable appearance of danger. An honest but mistaken belief that the woman was about to shoot would justify the use of deadly force by the man if a reasonable person would have acted similarly under those circumstances. The test is an objective one - an honest belief alone is not sufficient.

Question 53

Public Necessity

Answer 53

Saving a group of people, don’t need to pay damages

Question 54

Private Necessity

Answer 54

Saving yourself, or just your family, or just an agent. Must pay damages for what you destroyed.

Question 55

General Duty of Care

Answer 55

Reasonably prudent person under the same circumstances - add in physical characteristics if applicable (blind, handicapped). If a defendant’s conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff

Question 56

Duty of Care of Professionals

Answer 56

Exercise the knowledge and skill of a member of the profession in good standing

Question 57

Duty of Care of Children

Answer 57

The standard of care of a child of the same age, intelligence, and experience. Unless they are performing in an adult activity like driving.

Question 58

Landowners Standard of Care Categories

Answer 58

Trespasser
Licensees
Invitees

Question 59

NIED Bystander

Answer 59

can be outside of the zone of danger when: they are closely related to the victim, present at the scene of the injury, and personally observed the injury happen

Question 60

Intervening Cause

Answer 60

Occurs after negligence and defeats proximate cause unless it’s a foreseeable intervening cause like negligent rescue, a criminal act in a high crime area, or negligent medical care. A rescuer is a foreseeable plaintiff as long as the rescue is not reckless; hence, the defendant is liable if he negligently puts himself in peril and the plaintiff is injured attempting a rescue.

Question 61

What kind of damages can a P recover in a negligence case?

Answer 61

Economic and noneconmic. The extent and the severity of the harm do not to be foreseeable. Take your plaintiff as you find them.

Question 62

Defenses to Negligence

Answer 62

Contributory Negligence
Comparative Negligence
Assumption of Risk

Question 63

Contributory Negligence

Answer 63

Standard of care required for P to avoid injury, cannot recover any damages if found liable

Question 64

Partial Comparative Negligence

Answer 64

P can recover reduce damages as long as their fault is not above a certain level if so then they are barred

Question 65

Assumption of Risk

Answer 65

When P is aware of the risk and voluntarily assumes it. Analyze under comparative negligence. In a strict liability action, conduct constituting assumption of risk is an affirmative defense; depending on the jurisdiction, it may be a complete defense or it may reduce the plaintiff’s recovery under comparative fault principles

Question 66

Firefighter/Rescue Rule

Answer 66

Bars firefighters and police officers, on public policy or assumption of risk grounds, from recovering from injuries caused by the risks of a rescue.

Question 67

In what situations is strict liability imposed?

Answer 67

1. Wild or Abnormally dangerous animals
2. Abnormally Dangerous Activities: one that creates a foreseeable risk of serious harm when reasonable care is exercised.
3. Product liability
4. Nusiance

Question 68

Public Nuisance

Answer 68

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

Question 69

Remedies for Nusiance

Answer 69

Damages or injunctive relief for a continuing

Question 70

Misuse of a defective item

Answer 70

ADD

Question 71

Nuisance v. Trespass to land

Answer 71

ADD

Question 72

Vicarious Liability

Answer 72

Liable for the tort of another based on the relationship. Vicarious liability for the conduct of another can arise in partnership and joint venture situations. Each member of the partnership is vicariously liable for the tortious conduct of another partner committed in the scope of the partnership’s affairs.

Question 73

Negligent Entrustment

Answer 73

An owner is not vicariously liable for the negligence of a driver unless the state has adopted a permissive use statute or family purpose doctrine. They could be found liable for negligent entrustment - entrusting the car to someone who is bad at driving.

Question 74

Parental Liability for Child

Answer 74

The parent is not vicariously liable for child torts at common law by statute in states that do impose it

Question 75

Joint and several liabilty

Answer 75

when two or more tortious acts combine and proximately cause an indivisible injury to the P each tortfeasor is joint and severally liable for the injury. P can recover the full amount from either D. This rule is abolished in many places when P is more liable than D and all tortfeasors for noneconomic damages.

if the actions are independent, the plaintiff’s injury is divisible, and it is possible to identify the portion of injuries caused by each defendant, then each will be liable only for the identifiable portion

Question 76

Contribution

Answer 76

Allows one D to go after the joint and severally liable D to get help paying judgment

Question 77

Survival Statutes

Answer 77

preserve a victims cause of action after his death except for torts involving intangible personal interest like defamation

Question 78

Wrongful Death Statutes

Answer 78

permits a personal representative or surviving spouse to recover damages from a tortfeasor for the loss of the decedent’s support and companionship. allowed only to the extent that the deceased could have recovered in a personal injury action had he lived.

Question 79

Intra-Family Tort Immunity

Answer 79

abolished in most states except that children can’t sue their parents for the exercise of parental supervision.

Question 80

Governmental Immunity

Answer 80

Gov generally waived sovereign immunity from suit for ministerial acts but have not for discretionary acts

Question 81

Defamation

Answer 81

(i) defamatory language on the part of the defendant; (ii) the defamatory language must be “of or concerning” the plaintiff (meaning it must identify the plaintiff to a reasonable reader, listener, or viewer); (iii) publication of the defamatory language by the defendant to a third person either intentionally or negligently; (iv) damage to the reputation of the plaintiff; (v) falsity of the defamatory language; and (vi) fault on the defendant’s part. As long as it is understood in its defamatory sense, an accusation need not be believed to be actionable.

Question 82

Libel

Answer 82

A type of defamation. In a permanent form. Damages presumed if per se otherwise need to show special damages.

Question 83

Slander

Answer 83

A type of defamation. Spoken. Damages presumed if per se otherwise need to show special damages.

Question 84

Per se categories for Slander and Libel

Answer 84

business or profession, loathsome disease, the crime of moral turpitude, sexual misconduct.

Question 85

Public Figure Defamation

Answer 85

The statement was false, there was actual malice in D’s publishing (they knew it was false or recklessly published)

Question 86

Private Figure Defamation

Answer 86

negligence as to truth and actual injury

Question 87

Defenses to Defamation

Answer 87

truth
statement in judicial, legislative, or executive proceedings
qualified privilege for matters in the interest of the publisher or the recipient

Question 88

Invasion of Privacy with Pictures

Answer 88

used for commercial advantage without consent

Question 89

Invasion of Privacy with Affairs/Seclusion

Answer 89

prying or intruding on private affairs or seclusion that would be highly offensive to a reasonable person

Question 90

Invasion of Privacy by publication of facts placing in a false light

Answer 90

publication of facts placing her in a false light in the public eye that would be highly offensive to a reasonable person. THere must be actual malice.

Question 91

Invasion of Privacy by public disclosure of private facts

Answer 91

the disclosure must be highly offensive to a reasonable person. Needs actual publishing not to a few people

Question 92

Defenses to Publicity

Answer 92

1. Consent
2. Qualified privileges

Question 93

Intentional Misrepresentation (FRAUD)

Answer 93

the defendant with scienter (knowledge of falsity or reckless disregard as to truth/falsity) and intent to induce reliance, causation (actual reliance on misrepresentation), justifiable reliance, and damages. Usually no duty to disclose material facts but liable for active concealment

Question 94

Negligent Misrepresentation

Answer 94

the defendant in a business or professional capacity, breach of duty to the plaintiff, causation (actual reliance on misrepresentation), justifiable reliance, and damages. There is only a duty to those who the misrepresentation was relied upon or those who D knew would rely on it.

Question 95

Interference with Business Relations

Answer 95

A valid contractual relationship or business expectancy of the
plaintiff and a third party, the defendant’s knowledge of the relationship,
intentional interference by the defendant inducing a breach or termination
of the relationship, and damages. The defendant’s conduct may be privileged if it is a proper attempt to obtain business or protect the defendant’s interests

Question 96

Malicious Prosecution

Answer 96

Initiating a criminal proceeding against the plaintiff ending in
plaintiff’s favor, absence of probable cause for the prosecution, improper
purpose (malice), and damages

Question 97

Interference with Business relations

Answer 97

i) the existence of a valid contractual relationship between the plaintiff and a third party or a valid business expectancy of the plaintiff; (ii) the defendant’s knowledge of the relationship or expectancy; (iii) intentional interference by the defendant that induces a breach or termination of the relationship or expectancy; and (iv) damage to the plaintiff.

Question 98

Dram Shop Act

Answer 98

At common law, no liability was imposed on vendors of intoxicating beverages for injuries resulting from the vendee’s intoxication, whether the injuries were sustained by the vendee or by a third person as a result of the vendee’s conduct. Many states, in order to avoid this common law rule, have enacted “dramshop acts.” Such acts create a cause of action in favor of any third person injured by the intoxicated vendee.

Question 99

Landlord Duty

Answer 99

To prevent intruders from entering the main doors

Question 100

Duty to Prevent Injury

Answer 100

Only when there is a special relationship between the defendant and the person, the person had the authority to act, and the person knew or should have known the third person was likely to injure the other person

Question 101

Vicarious liability parents to children

Answer 101

At common law, parents are not vicariously liable for the torts of their child. (Statutes in most states allow for limited liability for intentional torts, but there is no indication of such a statute here.) Parents can be liable, however, for their own negligence, i.e., in not exercising due care under the circumstances. Thus, if the parents know their child may be violent, they could be negligent if they do not take precautions to prevent that behavior or injury from that behavior. However, if the parents have no reason to know their child could be violent, they have no duty to protect against such behavior.

Question 102

Common Carrier Duty

Answer 102

Hotels, airlines, and Taxis: Owe a higher duty of care, liable for even slight negligence

Question 103

Last Clear Chance

Answer 103

last clear chance doctrine is used in tort law for cases involving negligence and is applied when both the plaintiff and defendant are responsible for an accident that resulted in harm. When applied in states with contributory negligence laws, it is often seen as a type of exception or limitation to those laws. The doctrine considers which party had the last opportunity to avoid the accident that caused the harm.