Torts

Question 1

What damages are available under the eggshell Plaintiff rule?

Answer 1

Damages are available for all harm stemming from Defendant’s negligence; even the harm that was unforeseeable and unusually severe

Question 2

What 3 elements are required for a tort false imprisonment claim?

Answer 2

(1) Defendant intended to confine Plaintiff within a limited area
(2) Defendant’s conduct caused Plaintiff’s confinement or Defendant failed to release Plaintiff despite owing a duty to do so
AND
(3) Plaintiff was conscious of the confinement at the time it occurred

Question 3

In jurisdictions that follow the traditional approach, what duties does a land possessor have to (1) trespassers (2) licensees and (3) invitees?

Answer 3

(1) trespassers = on land w/o consent or privilege:
(a) known/frequent trespassers: warn & protect against concealed, dangerous, artificial conditions
(b) unknown/unanticipated trespassers: no duty

(2) licensees = on land w/ permission, social guest:
warn of known latent dangers and use reasonable care in active operations

(3) invitee = on land open to public or for business purposes:
duty to inspect for unknown dangerous, make premises safe or provide warnings & prevent harm from active operations

Question 4

What is a misappropriation of the right to publicity tort claim?

Answer 4

(1) Defendant used Plaintiff’s identity, name or likeness
(2) without Plaintiff’s authorization
(3) for Defendant’s advantage
AND
(4) resulted in injury to Plaintiff

Question 5

What is the bystander liability theory under a negligent infliction of emotional distress claim?

Answer 5

Defendant can be held liable when:

(1) Defendant negligently caused serious bodily injury to a close relative of Plaintiff
(2) Plaintiff perceived the event
AND
(3) Plaintiff suffered serious emotional distress

Question 6

What is the zone of danger liability theory under a negligent infliction of emotional distress claim?

Answer 6

Defendant can be held liable when:

(1) Defendant’s negligent conduct places Plaintiff in danger of immediate bodily harm
AND
(2) that danger causes Plaintiff serious emotional distress

Question 7

4 instances when Defendant has an affirmative duty to act?

Answer 7

(1) Defendant places Plaintiff in danger

(2) Defendant has a special relationship w/ Plaintiff

(3) Duty is imposed by law

(4) Defendant begins to administer aid or attempts to rescue Plaintiff

Question 8

What 4 elements are required for an intentional interference with a contract claim?

Answer 8

(1) valid contract existed b/w Plaintiff and third party

(2) Defendant knew of the contractual relationship

(3) Defendant intentionally and improperly interfered with the contract’s performance

(4) interference caused Plaintiff pecuniary loss

Question 9

In modified comparative fault jurisdictions, what are the majority and minority rules as to Plaintiff’s share of fault?

Answer 9

Majority of jurisdictions = recovery is barred if Plaintiff’s share of fault greater than share of fault for Defendant

Minority of jurisdictions = recovery is barred if Plaintiff’s share of fault is equal to or greater than share of fault for Defendant

Question 10

What are the 3 elements of res ipsa loquitur?

Answer 10

(1) injury is type that would ordinarily not occur without negligence

(2) instrumentality causing injury was within exclusive control of Defendant

(3) Plaintiff was not responsible for their injury

Question 11

What are the 3 elements of intentional infliction of emotional distress?

Answer 11

(1) Defendant engaged in extreme and outrageous conduct

(2) Defendant intended to cause Plaintiff emotional distress or recklessly disregarded risk of causing distress

(3) caused Plaintiff severe emotional distress

Question 12

What are the 3 elements of negligence per se?

Answer 12

(1) Defendant violated statute or ordinance

(2) Plaintiff suffered type of harm that statute was intended to protect against

(3) Plaintiff was in class of persons intended to be protected by statute

Question 13

What are 3 elements for a battery tort claim?

Answer 13

(1) Defendant intended to cause contact with Plaintiff’s person

(2) Defendant’s affirmative conduct causes contact

(3) contact causes bodily harm or is offensive to Plaintiff

Question 14

In what 4 instances is a doctor not required to explain all risks associated with a medical procedure to a patient?

Answer 14

(1) risk is commonly known

(2) patient waives or refuses the information

(3) patient is incompetent (still must try to gain consent from guardian)

(4) disclosure would be detrimental to the patient

Question 15

In an ordinary negligence action, what is Plaintiff’s recovery for only economic losses?

Answer 15

When Plaintiff only suffers economic loss without physical harm = generally unable to recover economic loss b/c Defendant does not have general duty to avoid unintentional infliction of economic loss

Question 16

In a strict products liability claim, what is the risk-utility test as applied to whether a design defect exists?

Answer 16

Plaintiff must prove:

(1) reasonable alternative design was available to Defendant; must be economically feasible

(2) failure to use that designed rendered the product not reasonably safe

Question 17

What are the 3 elements of a strict products liability claim?

Answer 17

(1) product was defective
(a) manufacturing defect
(b) design defect
(c) failure to warn

(2) defect existed at the time product left Defendant’s control

(3) defect caused Plaintiff’s injuries when product used in intended or reasonably foreseeable way

Question 18

What are 4 instances when an employer may be liable for the torts of an independent contractor?

Answer 18

(1) employer negligent in selecting contractor

(2) function is inherently dangerous

(3) employer is storekeeper or operator of premises open to public with a duty to keep premises safe

(4) the function is non-delegable

Question 19

What 4 elements must Plaintiff establish to prevail in a slander claim?

Answer 19

(1) Defendant knowingly made a false statement about Plaintiff or negligently failed to determine its falsity

(2) type of statement would tend to harm Plaintiff’s reputation

(3) Defendant intentionally or negligently communicated that statement to a third party

(4) statement caused Plaintiff special harm (monetary loss)

Question 20

What does the firefighter’s rule provide?

Answer 20

Rule bars professional rescuers from recovering for harm that resulted from the special dangers of their jobs

Question 21

In what 2 instances may an initial aggressor gain the right to act in self-defense?

Answer 21

(1) initial aggressor’s use of force is met with deadly force

(2) initial aggressor, in good faith, completely withdraws from the altercation and communicates that to the victim