Torts

Question 1

capture of chattel

Answer 1

the defense of recapture of chattels is limited by the circumstances of the original dispossession. When another’s possession of the owner’s chattel began lawfully the owner may use only peaceful means to recover the chattel. Force may be used to recapture a chattel only when in “hot pursuit” of one who has obtained possession wrongfully (by theft).

Question 2

Flash imprisonment

Answer 2

a. Defined: An intentional act or omission by the defendant that causes the plaintiff to be confined or restrained to a bounded area
b. Confinement or restraint includes threats of force, false arrests, and failure to provide a means of escape when under a duty to do so

Question 3

IIED

Answer 3

Intentional extreme and outrageous conduct by the defendant that causes the plaintiff to suffer severe emotional distress

Physical injuries are not required, only severe emotional distress.

Conduct not normally outrageous may become so if: it is continuous, committed by certain type of defendant like common carrier, or directed towards certain type of plaintiff like a supersensitive one which is known to defendant.

Question 4

trespass to land

Answer 4

An intentional act by the defendant that causes a physical
invasion of the plaintiff’s real property

The defendant need not have intended to commit a trespass, only to do the act of entering onto land

Question 5

trespass to chattels

Answer 5

a. Defined: An intentional act by the defendant that causes an
interference with the plaintiff’s right of possession in a chattel,
resulting in damages
b. The tort typically involves damage to or dispossession of the
plaintiff’s chattel
c. The defendant need not have intended to commit a trespass to the
chattels, only to do the act that causes interference with chattel
d. If the damage to the chattel is serious, conversion may be more appropriate

Question 6

conversion

Answer 6

An intentional act by the defendant that causes a serious interference with the plaintiff’s right of possession in a chattel

The defendant need not have intended a conversion, only to do the act that constitutes a conversion

Damages will be the full value of the chattel at time and place of conversion (in effect, a forced sale of the chattel)

Question 7

Transferred intent

Answer 7

1. Intent will transfer from the intended tort to the committed tort, or from the
   intended victim to the actual victim
2. Both the tort intended and the tort committed must be battery, assault, false imprisonment, trespass to land, or trespass to chattels

Question 8

consent

Answer 8

a. Consent may be either express or implied (apparent or implied by law)
b. The plaintiff must have capacity to consent and the defendant must
not exceed the bounds of the consent

Question 9

self defense of others and of property

Answer 9

a. The defendant must reasonably believe that a tort is being or about to be committed against himself, a third person, or his property
b. Only reasonable force may be used
1) Deadly force is permitted if reasonably believed to be necessary to prevent serious bodily injury
2) Deadly force is never permitted to defend only property
c. The shopkeeper’s privilege permits the reasonable detention of someone the shopkeeper reasonably believes has shoplifted goods

Question 10

Public 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, as long as the threatened injury is substantially more serious than the invasion that is undertaken to avert it.

This privilege trumps a property owner’s right to defend his property

Question 11

Negligence

Answer 11

1. The defendant owes a duty of care to conform to a specific standard of conduct
2. The defendant breached that duty
3. The breach of duty was the actual and proximate cause of the plaintiff’s injury
4. The plaintiff suffered damages to person or property

Question 12

general standard of care

Answer 12

The general standard of care is a reasonably prudent person under the
same or similar circumstances (average mental ability but the same
physical characteristics as the defendant if relevant)

Question 13

professionals standard of care

Answer 13

Professionals must exercise the knowledge and skill of a member of the profession in good standing

Question 14

children standard of care

Answer 14

Children must conform to the standard of care of a child of like age, intelligence, and experience (except the adult standard applies if the child is engaged in an adult activity)

Question 15

landowner’s standard of care - trespassers

Answer 15

The landowner owes no duty to undiscovered trespassers

For discovered and anticipated trespassers, the landowner owes a duty to warn of or make safe known highly dangerous artificial conditions if not obvious to the trespasser

Question 16

criminal statute standard of care

Answer 16

A criminal statute may serve to establish a specific standard of care in
place of the general standard of ordinary care if:
a. The plaintiff is within the class that the statute was intended to
protect
b. The statute was designed to prevent the type of harm suffered

Question 17

Negligent Infliction of emotional distress - bystander

Answer 17

The defendant breaches a duty to a bystander not in the zone of danger who (i) is closely related to the injured person, (ii) was present at the scene of the injury, and (iii) personally observed or perceived the event

A relationship exists between the defendant and the plaintiff under which the defendant’s negligence has great potential to directly cause emotional distress (e.g., hospital erroneously reports death of plaintiff’s family member)

Question 18

Res Ipsa Loquitor

Answer 18

Under res ipsa loquitur, the fact that an injury occurred may create an
inference that the defendant breached his duty. Two requirements:
a. The accident causing the injury is a type that would not have occurred
absent negligence
b. The negligence is attributable to the defendant (usually because the
defendant is in exclusive control of the instrumentality causing the injury)

Question 19

Actual Causation tests

Answer 19

Usually established by the “but for” test—an act is the actual cause of an injury when it would not have occurred but for the act
b. Merged causes—when two acts bring about an injury and either one alone would have sufficed, either of the acts is an actual cause of the injury if it was a “substantial factor” in bringing it about
c. Unascertainable causes—when two acts were negligent but it is not clear which was the actual cause of the injury, the burden shifts to each of the negligent actors to show that his negligent act was not the actual cause

Question 20

Damages

Answer 20

1. The plaintiff must show actual harm or injury to complete the prima facie
   case
2. The plaintiff can recover economic damages (e.g., medical expenses) and
   noneconomic damages (e.g., pain and suffering)
3. The extent or severity of the harm need not have been foreseen (the
   tortfeasor takes his victim as he find him)

Question 21

Defenses to negligence

Answer 21

Contributory negligence— The plaintiff can’t recover if at fault. The standard of care required of a plaintiff to avoid injury is judged using a reasonable person standard

Comparative negligence—almost all states have rejected the rule that a plaintiff’s contributory negligence will totally bar her recovery
a. In a pure comparative negligence state, a negligent plaintiff can recover damages reduced by the percentage of her fault even if she was primarily at fault
b. In a partial comparative negligence state, a negligent plaintiff can recover reduced damages as long as her fault is not above a certain level (usually 50%); if it is, she is barred from recovering

3. Assumption of risk—arises when the plaintiff is aware of a risk and voluntarily assumes it (either expressly or impliedly)
   a. In comparative negligence states, most implied assumption of risk situations are analyzed under comparative negligence rules

Question 22

liability for wild animals

Answer 22

The owner of a wild animal is strictly liable for injuries caused by wild animals. Usually not to trespassers unless trespasser proves negligence.

Question 23

products liability

Answer 23

Liability for defective products may be brought under various theories of liability: intent, negligence, strict liability, implied warranties of merchantability and fitness for a particular purpose, and representation theories

Liability arises when a commercial supplier supplies a product in a defective condition unreasonably dangerous to users.

  a. A product has a manufacturing defect when it varies from the other products in the manufacturing process and is dangerous beyond the expectation of the ordinary consumer

  b. A product has a design defect when all products of the line have dangerous characteristics because of mechanical features, packaging, or an information defect when users are given inadequate warnings and instructions, and a less dangerous modification or alternative was economically feasible

Defense
- Misuse of a product only if the misuse was not foreseeable.

Question 24

products liability based on negligence

Answer 24

To establish a prima facie case of negligence in a products liability case, the plaintiff must show the standard elements of negligence.

Breach of duty is shown by negligent conduct by the defendant that leads to supplying a defective product to the plaintiff

If the defendant assembles parts from a manufacturer but sells it as its own, it will be liable for the manufacturers negligence

an intermediary’s negligent failure to discover a defect is not a superseding cause, and the defendant who supplied the defective product will be held liable along with the intermediary.

Question 25

products liability based on strict liability

Answer 25

Liability arises from supplying a product that was defective when it left the defendant’s control even if the defendant exercised due care and was not negligent

an intermediary’s negligent failure to discover a defect is not a superseding cause, and the defendant who supplied the defective product will be held liable along with the intermediary. Even a retailer who had no opportunity to inspect the product may be liable as a commercial supplier

Question 26

private nuisance

Answer 26

A private nuisance is a substantial, unreasonable interference with another person’s use or enjoyment of her property. This means it must be offensive, inconvenient, or annoying to an average person in the community. It will not suffice if the plaintiff is hypersensitive.

Question 27

public nuisance

Answer 27

A public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community

Question 28

Vicarious liability

Answer 28

1. The defendant may be vicariously liable for the tort of another based on the relationship between the defendant and the tortfeasor
2. Employer-employee (respondeat superior)—the employer is liable for torts of an employee that occur within the scope of the employment relationship
3. Principal-independent contractor—the general rule is that a principal is not vicariously liable for the torts of an independent contractor, but broad exceptions exist:
   a. The independent contractor is engaged in inherently dangerous activities
   b. The principal’s duty cannot be delegated because of public policy considerations
4. Automobile owner-driver—an automobile owner is not vicariously liable for the negligence of the driver unless the state has adopted:
   a. A permissive use statute (imposing liability for the torts of anyone driving with permission), or
   b. The family purpose doctrine (imposing liability for the torts of a family member driving with permission)
5. Parent-child—a parent is not vicariously liable for a child’s torts at common law (but statutes in many states impose limited liability for the child’s intentional torts)
6. Note that, regardless of whether vicarious liability applies, the defendant can be liable for his own negligence, e.g., negligence in hiring the employee, supervising the child, or entrusting the car to the driver

Question 29

joint and several liability

Answer 29

Under the rule of joint and several liability, when two or more tortious acts combine to proximately cause an indivisible injury to the plaintiff, each tortfeasor is jointly and severally liable for the injury
a. The plaintiff can recover his entire damages from any one of the tortfeasors
b. Many states have abolished the rule for (i) those tortfeasors less at fault than the plaintiff, or (ii) all tortfeasors for noneconomic damages

Question 30

contribution

Answer 30

If joint and several liability applies, contribution allows a tortfeasor who paid more than his share of the damages to recover the excess from other tortfeasors in proportion to their fault

Question 31

defamation essay approach

Answer 31

1. Apply the prima facie case: Defamatory language concerning the plaintiff published to a third person that causes damage to the plaintiff’s reputation, falsity of the statement, and fault by the defendant
   a. Damage will be presumed if the defamation is libel (in writing or other permanent form) or if it is slander (spoken) within one of the four per se categories (business or profession, loathsome disease, crime of moral turpitude, or sexual misconduct); otherwise, special (pecuniary) damages must be shown.
2. Apply the constitutional requirements for fault if the plaintiff is a public official or figure, or if the defamation involves a matter of public concern:
   a. The plaintiff must prove that the statement was false
   b. Public officials or figures must prove “actual malice,” meaning that the statement was made with knowledge of its falsity or reckless disregard of its truth or falsity
   c. Private figures suing on a matter of public concern must show (i) at least negligence as to truth or falsity, and (ii) actual injury (no presumed damages)
3. Consider any applicable defenses
   a. Truth (when the plaintiff is not obligated to prove falsity)
   b. Absolute privilege for statements in judicial, legislative, or executive proceedings
   c. Qualified privilege for matters in the interest of the publisher and/or the recipient (may be lost if the statement is outside the scope of the privilege or made with actual malice)

Question 32

invasion of privacy

Answer 32

1. Appropriation of the plaintiff’s picture or name
   a. Unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage
   b. Limited to the advertisement or promotion of products or services
2. Intrusion on the plaintiff’s affairs or seclusion
   a. An act of prying or intruding on the plaintiff’s private affairs or seclusion that would be highly offensive to a reasonable person
3. Publication of facts placing the plaintiff in a false light
   a. The publication of facts about the plaintiff putting her in a false light in the public eye in a way that would be highly offensive to a reasonable person
   b. Actual malice must be shown if the publication is in the public interest
4. Public disclosure of private facts about the plaintiff
   a. The public disclosure of private information about the plaintiff such that the disclosure would be highly offensive to a reasonable person
   b. Public disclosure requires publicity, not just publication to a few people
5. Defenses—consent and absolute or qualified privileges

Question 33

Intentional misrepresentation

Answer 33

Defined: Misrepresentation by 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
b. The defendant generally has no duty to disclose material facts but may be liable for active concealment

Question 34

negligent misrepresentation

Answer 34

a. Defined: Misrepresentation by the defendant in a business or
professional capacity, breach of duty to the plaintiff, causation (actual reliance on misrepresentation), justifiable reliance, and damages
b. The defendant owes a duty only to those to whom the misrepresentation was directed or those who the defendant knew would rely on it

Question 35

Interference with business relations

Answer 35

1. Defined: 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
2. The defendant’s conduct may be privileged if it is a proper attempt to obtain business or protect the defendant’s interests

Question 36

malicious prosecution

Answer 36

Defined: 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 37

to prove breach of duty

Answer 37

To prove breach of duty, it must be shown what in fact happened, and (based on these facts) that the defendant acted unreasonably. Proof of what happened may be established by either direct or circumstantial evidence. Other matters may also be offered into evidence to establish the standard by which defendant’s conduct is to be measured, such as: 1. Custom or usage; 2. Violation of an applicable statute; and 3. The circumstantial evidence doctrine of res ipsa loquitur.

Question 38

Strict liability for domestic animals

Answer 38

domestic animals include farm animals.

Owner is not strictly liable for injuries it causes. Strict liability will attach if the owner knows of the domestic animal’s dangerous propensities that are more dangerous than normal for that species.

Question 39

Strict liability for trespassing animals

Answer 39

if an animal commits an unforeseeable trespass the owner of the animal will not be held strictly liable for damage caused by the animal.

The owner is strictly liable for damage caused by the trespass of her animal one if it was reasonable foreseeable.

Question 40

Strict liability for animals attacking trespassers

Answer 40

the owner will not be held strictly liable for damage caused by the animal if the person is a trespasser. A trespasser cannot recover for injuries caused unless there was negligence on the part of the landowner (landowner knew of the trespasser and failed to warn of a wild animal or abnormally dangerous domestic animal.)

Question 41

Respondeat Superior

Answer 41

an employer is vicariously liable for tortious acts committed by his employees if the tortuous acts occur within the scope of the employment relationship. The general rule is that intentional tortious conduct by employees is not within the scope of employment courts will find intentional tortious conduct to be within the ambit of this relationship when (i) force is authorized in the employment (ii) friction is generated by the employment, or (iii) the employee is furthering the business of the employer.

Question 42

tortious frolic

Answer 42

An employer is NOT liable for the tortious frolics of his employees. An employee on a delivery or business trip for his employer may commit a tort while deviating from the employer’s business to run a personal errand. If the deviation was minor in time and geographic area, the employee will still be considered to be acting within the scope of employment, but a more major deviation is a “frolic” for which the employer would not be liable.

Question 43

proximate cause

Answer 43

Limits liability for unforeseeable consequences of the defendant’s actions. The defendant is liable for all natural and probable consequences of his conduct within the increased risk caused by their negligence even if not anticipated in the precise manner they occurred.

Superseding Force: An intervening force that produces unforeseeable results

Foreseeable intervening forces: (such as a negligent rescue) do not cut off the defendant’s liability for the consequences of his negligent act

Question 44

Prima facie case for negligence

Answer 44

requires the plaintiff to show: (i) a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury; (ii) breach of that duty by the defendant; (iii) that the breach was the actual and proximate cause of the plaintiff’s injury; and (iv) damage to the plaintiff’s person or property. Whenever a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person engaged in the same or similar activity. 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 45

False imprisonment

Answer 45

• An act or omission by the defendant that confined or restrained plaintiff to a bounded area. There must be no reasonable means of escape known to plaintiff. Moral pressure and future threats are not sufficient restraints.
• Intent by the defendant to do so
• Awareness of the confinement
• Time of confinement is irrelevant
• Damages are not required. Any foreseeable damages are recoverable (humiliation).

Question 46

Liability for abnormally dangerous activities

Answer 46

An abnormally dangerous activity ,the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors AND the activity is no a matter of common usage in the community.

The defendants liability extends only to foreseeable plaintiffs and the harm must result from the kind of danger that is anticipated form the dangerous activity.

Question 47

Rescuers

Answer 47

a rescuer is a foreseeable plaintiff when defendant negligently put himself in peril (“danger invites rescue”).

One who begins to rescue is then under the duty to act reasonably. If he acts negligently, he will be liable for damage caused (but this isn’t a superseding act).

A violation of a statute will not be negligence per se where compliance would cause greater risk of harm than violation

Question 48

landowner’s duty of care - Licensees

Answer 48

Licensees are those who come onto the land with express or implied permission but for their own purpose (includes social guests)

the landowner owes a duty to warn of or make safe known highly dangerous artificial and natural conditions if not obvious to the trespasser

Question 49

Landowner’s standard of care - Invitees

Answer 49

Invitees are those entering as members of the public or for a purpose connected to the business of the landowner

the landowner owes a duty to reasonably inspect for dangerous conditions and to warn of or make safe known highly dangerous artificial and natural conditions if not obvious to the trespasser

Question 50

negligent infliction of emotional distress

Answer 50

Negligently creating a risk subjecting the plaintiff to threat of physical impact or severe emotional distress likely to cause physical symptoms and that actually does cause physical symptoms

Question 51

IIED - bystander

Answer 51

(1) plaintiff bystander must be present when the conduct occurs; (2) the distress must result in bodily harm or plaintiff must be a close relative of the third party and (3) defendant must know these facts or have intent to cause plaintiff distress.

Question 52

Private Necessity

Answer 52

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, as long as the threatened injury is substantially more serious than the invasion that is undertaken to avert it. However, when the act is solely to benefit a limited number of people, this is considered private necessity and the defense is qualified; i.e., the actor must pay for any injury that he causes.

Question 53

Invasion of Privacy - Torts

Answer 53

A - F - L - I - P

1. Aprropriation of plaintiff’s picture or name for commercial gain. .
2. False Light - defendant depecits the plaintiff in a false light changing the image of who this person is. Paradoys usually don’t rise to the level of false light - have to make it egrigous.
3. Intrusion upon seclusion - You can’t intrude on someone’s privacy. Publicatin of private facts not generally known to the public. News worthiness could be a defense if publication is news worthy.
   public officials need ot prove malice or knowledge of falsity.

In privacy torts, harm to reputation does not have to be proved, the effect might cause damages but its not an element.
4.