Torts

Question 1

intentional torts: general elements

Answer 1

1) voluntary act
2) intent
3) actual causation

Question 2

intentional torts – general elements – voluntary act

Answer 2

must be affirmative, not reflexive or unconscious

Question 3

intentional torts – general elements – intent

Answer 3

Not motive, but “volition” shown by desiring consequences OR

having purpose to bring consequences OR

knowing such consequences were substantially certain to occur

Question 4

intentional torts – general elements – actual causation

Answer 4

but for / substantial factor, liable for all consequences

Question 5

intentional torts – transferred intent

Answer 5

D intends to commit a tort but instead commits a different tort, commits the same tort against a different person, or both

= intent is transferred to actual tort or person

Question 6

which torts does transferred intent apply to?

Answer 6

battery, assault, false imprisonment, trespass to land, trespass to chattels

Question 7

intentional torts – battery elements

Answer 7

1) harmful or offensive contact with P’s person
2) D intended harmful or offensive contact or imminent apprehension of such contact with P’s person
3) D caused the contact

Question 8

intentional torts – battery – what does it mean to make contact with “P’s person”

Answer 8

P or something closely connected to P

P need not be aware of conduct

Delayed conduct is ok

Question 9

intentional torts – battery – objective or subject standard?

Answer 9

contact needs to offensive to a reasonable person, unless D knew that P is particularly susceptible

Question 10

assault elements

Answer 10

1) act by D created reasonable apprehension in P of imminent battery
2) D intended such apprehension
3) D caused such apprehension

Question 11

assault – words alone sufficient?

Answer 11

No, because no imminence

Question 12

false imprisonment elements

Answer 12

1) intentional confinement of plaintiff
2) to a bounded area
3) against P’s will
4) cause by D’s act or omission

Question 13

can D falsely imprison someone using reputation harm or future threats?

Answer 13

No

Question 14

shopkeeper’s privilege

Answer 14

a shopkeeper may detain a shoplifter for

1) a reasonable period of time
2) in a reasonable manner (so this can be a defense to battery

IF the shopkeeper has

3) reasonable suspicion to believe that the detained person committed or attempted to steal store property

Question 15

IIED elements

Answer 15

1) extreme and outrageous conduct
2) intended by D (intended or reckless)
3) causes severe emotional distress (Actual damages only)

Question 16

IIED “outrageous conduct” – lesser showing required for which Ps and Ds?

Answer 16

Ps: supersensitivity known to D, children, elderly, preg
Ds: common carriers, innkeepers

Question 17

third party IIED elements

Answer 17

1) D intentionally/recklessly caused severe emotional distress and
2) D knows 3P is present + direct victim is a close family relative of 3P
3) 3P’s emotional distress results in bodily harm

Question 18

trespass to land

Answer 18

1) D’s intentional act
2) causes physical invasion
3) of P’s real property

Question 19

what characterizes as physical invasion for trespass to land?

Answer 19

entry by anything tangible (bullet, pesticide, person) but not light, noise, or vibrations

Question 20

what counts as P’s land for trespass to land?

Answer 20

Anyone in possession of land (LL, T, Aper) incl surface, airspace, subterranean space

Question 21

are damages required for trespass to land?

Answer 21

Not required for intentional entry, but required for negligent, reckless, strict liability trespasses

Question 22

trespass to chattel

Answer 22

1) intentional interference with
2) P’s possessory right to personal property (includes pets)

encompasses direct interference with possession to taking to damaging

Question 23

Conversion elements

Answer 23

1) substantial interference with
2) P’s possessory right to personal property

Question 24

what is substantial interference for the purposes of conversion?

Answer 24

longer deprivation of possessory right, full damages, destruction

Question 25

what may p recover for trespass to chattel / conversion?

Answer 25

P may recover rental value or full FMV at time of trespass/conversion (damages) or possession (replevin)

Question 26

defenses to intentional torts

Answer 26

1) consent to D’s conduct, not its consequences
2) defense of self
3) defense of property
4) defense of others
5) necessity

Question 27

consent defense to intentional tort elements

Answer 27

Consent is to D’s conduct, not to its consequences

1) P had capacity
2) to expressly or impliedly consent
3) within scope

implied consent generally seen with reasonable tortious acts (sports)

Question 28

defense of self defense to intentional tort

Answer 28

D may use force reasonably believed to be necessary to avoid imminent harm by P

Must be reasonable and proportionate

Question 29

defense of property defense to int. tort

Answer 29

D must first demand P stop the conduct before using reasonable force in defense (never deadly)

Question 30

defense of others defense to int tort

Answer 30

D can defend a third party but P’s attack if D reasonably believed that the force used is necessary to avoid imminent harm

Question 31

necessity defense to int tort applicable to which torts

Answer 31

property torts only

Question 32

public necessity defense to int tort

Answer 32

D may interfere with P’s property to protect public from harm (Absolute defense)

Question 33

private necessity defense to int tort

Answer 33

P may protect individual interests if threatened harm substantially greater than D’s harm. D is liable for any har caused. P is liable for any harm caused preventing D’s necessary act.

Question 34

what is majority and minority view of duty of care?

Answer 34

Under the Cardozo (majority) view, Δ has a duty of care to Πs in the foreseeable zone of danger. Under the Andrews view, Δ has a duty of care to everyone (everyone is foreseeable).

Question 35

exceptions to nonfeasance

Answer 35

Affirmative duty created by
1) special relationship (parent-child, common carriers, innkeepers, shopkeepers)
2) Δ’s conduct creating the peril
3) Δ’s undertaking the action for Π’s benefit (attempt to assist)
4) Δ’s creating reliance
5) contract

Question 36

rescued party’s liability to rescuer’s injuries

Answer 36

as long as rescuer’s behavior was not wanton, rescued party is liable for injuries. Rescuers are per se foreseeable plaintiffs

Question 37

NIED elements bystander

Answer 37

1) P was present (not in zone of danger)
2) suffered severe emotional distress
3) close relationship with victim

Question 38

NIED direct elements

Answer 38

1) P is owed a duty if P was in zone of danger
2) suffered bodily harm from threat of physical impact OR emotional distress as a result of negligence

Question 39

extent of the duty of care

Answer 39

owes a duty to act as a reasonably prudent person in same or similar situation (who has Δ’s relevant physical characteristics), absent negligence per se or a special relationship

Question 40

negligence per se

Answer 40

1) A statute (including one that provides for criminal penalty) defines the standard if Π is in the class of persons the statute was designed to protect
2) injury is type of injury statute
was designed to protect

= An unexcused violation of statute constitutes negligence per se—a breach of duty

Question 41

Exceptions from negligence per se

Answer 41

Statute may be excused if it would be more dangerous to follow it or compliance is beyond Δ’s control (unforeseeable, incapable)

Question 42

standard of care for children

Answer 42

Held to standard of reasonable child of same age, experience, intelligence, unless adult activity

Question 43

standard of care for landowners: invitee

Answer 43

Someone who enters land open to public with potential to confer economic benefit

Must 1) Exercise reasonable care to prevent injuries
2) Inspect and make safe dangerous conditions

Question 44

SoC for landowners: licensee

Answer 44

Someone who enters land not open to public not to confer economic benefit (guest)

SoC: duty to warn of or make safe known dangers

Question 45

SoC for landowner: trespasser

Answer 45

Anticipated/known trespasser: Duty to warn of or make safe known, artificial, highly dangerous conditions. Cannot use deadly force to defend property

NO duty to undiscovered trespassers

Question 46

attractive nuisance doctrine

Answer 46

Δ has duty to exercise ordinary care and avoid foreseeable risk of
harm (warn and make safe) to children caused by artificial conditions on property if:

1) dangerous condition owner is/should be aware of
2) owner knows/should know children frequent the vicinity
3) condition likely to cause injury (b/c Π child’s inability to appreciate the risk—doctrine does not apply to a “bright” child)
4) expense of remedying danger is outweighed by risk

Question 47

SoC for landowners: LL-T

Answer 47

LL is liable for common areas, negligent repairs, known hidden defects, reasonable care to discover and repair defects if LL knows T is going to hold property open to general public

Question 48

SoC for professions

Answer 48

Required to possess and exercise the knowledge and skill of a member of the profession in good standing. Medical specialists held to national standard. General practitioners held to local standard

Question 49

how can custom or usage be used in SoC issues?

Answer 49

May establish what the SoC is but not dispositive

Question 50

breach (three ways of calculation)

Answer 50

hand formula, negligence per se, res ipsa

Question 51

res ipsa elements

Answer 51

creates an inference of negligence (p/f case for jury, deny directed verdict for Δ) where
1) type of accident is typically the result of negligence
2) accident is attributable to Δ (Δ had sole control of the instrumentality causing injury), and
3) Π did not contribute to the injury.

Δ may rebut with evidence

Question 52

causation elements

Answer 52

actual cause in fact (but for cause, substantial factor, alternate causes) + proximate cause

Question 53

proximate cause - superseding cause

Answer 53

unforeseeable, intervening cause that breaks the chain of causation and becomes the proximate cause. The more intentional the intervening cause, the more likely it is superseding

BUT if Δ should have realized the risk, he may still be liable for intentional 3P acts

Question 54

damages

Answer 54

Π is entitled to economic damages (e.g., medical expenses), noneconomic damages (e.g., pain, emotional
distress), punitive damages (if Δ conduct is reckless or malicious), property damage (reasonable repair cost or FMV)

Question 55

when can Ps cover for pure economic harm?

Answer 55

NIED

Question 56

defenses for general negligence

Answer 56

duty to mitigate, pure comparative negligence, modified comparative negligence, contributory negligence, assumption of risk (Express, professional rescuer, avoidable consequences)

Question 57

defenses to strict liability

Answer 57

Contributory negligence, comparative negligence, assumption of risk

Question 58

products liability elements

Answer 58

P must show defect in product when it left D’s control

Question 59

how to prove manufacturing defect?

Answer 59

Ordinary consumer expectation test: Product failed to perform as safely as an ordinary consumer would expect. Δ must anticipate reasonable misuse

Question 60

Design defect - how to prove?

Answer 60

Feasible alternative test: Product could have been made safer without serious impact on the product’s price or utility

Risk-utility test: Danger of design > utility to society, feasibility of alternate designs

Question 61

inadequate warnings defect

Answer 61

Product must have clear and complete warnings of dangers that may
not be apparent to users. One language OK. Unneeded if obviously dangerous

Question 62

causation for products liability

Answer 62

Actual cause—defect existed when product left Δ’s control (Π need not prove fault). Proximate cause—type of injury was foreseeable at the time product was placed in the stream of commerce

Question 63

learned intermediary rule

Answer 63

Manufacturer is relieved of liability if an intermediate handler
discovers the defect and knowingly passes it to Π or failed to convey manufacturer warning to Π

Question 64

defenses to product liability

Answer 64

misuse, assumption of risk, comparative negligence, contributory negligence, alteration (3P unforeseeably changes the product)

Question 65

products liability (negligent)

Answer 65

assess reasonableness of D’s conduct whose failure resulted in supplying a defective product. can use Res ipsa

Question 66

implied warranty theory by purchaser, family, household, guests

Answer 66

purely economic losses are recoverable

(1) duty
(a) Merchantability (breached by merchant dealing in kind of goods sold) refers to whether the goods are of average acceptable quality and fit for the ordinary purpose the goods are used

(b) Fitness for a particular purpose (breached by any seller of the goods) refers to whether the seller knows or has reason to know the particular purpose the goods are required for and the buyer is relying on the seller’s skill and judgment in selecting the goods

(2) Breach: If product fails to meet either of above standards, warranty is breached. No need to show fault.
(3) Causation: Actual + proximate cause as in general negligence
(4) Damages: Personal, property damages. Purely economic losses are recoverable

DEFENSES: assumption of risk (using while knowing breach), contributory negligence if Π discovered defect, failure to give notice of breach (under UCC)

Question 67

express warranty

Answer 67

Δ makes representation affirming a fact or promising to the buyer as to the product that becomes the basis of the bargain. No need to show breach, just that product did not live up to warranty.

Question 68

defamation elements

Answer 68

1) defamatory language adverse to one’s reputation
2) of or concerning P (or small group)
3) publication
4) damage to reputation

if matters of public concern
5) falsity
6) fault of D

Question 69

special considerations for libel

Answer 69

1) any communication that has some permanence
2) general damages are presumed

Question 70

special considerations for slander

Answer 70

1) P must prove special damages, unless slander per se
(improper trade conduct, accusation of crime involving moral turpitude, loathsome disease, lack of chastity of woman

Question 71

to prove fault of D when issue is public concern (con law issue for defamation) what must D show for public official vs private person?

Answer 71

public person: P must show malice
private person: P only need to prove negligence

Question 72

defenses to defamation

Answer 72

qualified privilege (past employer’s reference) (but NOT if D acted with malice or statement is outside scope of privilege)
truth
absolute privilege (legislators, federal executive officials, judicial proceedings, spouses)

Question 73

private nuisance definition

Answer 73

substantial and unreasonable interference with Π’s use and enjoyment of possessed land by intentional, negligent, or abnormally dangerous conduct

i. Substantial: Offensive, inconvenient, or annoying to an average person in the community
ii. Unreasonable: Severity of injury > utility of Δ’s conduct

Question 74

public nuisance

Answer 74

unreasonable interference with a health, safety, moral right common to the general public

i. Suit typically brought by gov’t actor. Private party can bring action if he suffered unique damage

Question 75

privacy torts

Answer 75

1) commercial appropriation
2) intrusion into seclusion
3) public disclosure of private true facts
4) portrayal in false light

Question 76

commercial appropriation definition

Answer 76

Unauthorized (no permission or negligent in verifying) use of Π’s picture or name for Δ’s commercial purpose. Π need not be identified by name so long as clear that the ad is meant to depict that person

Question 77

intrusion into seclusion

Answer 77

Δ intentionally interferes with Π’s zone of privacy in a manner offensive to a reasonable person (for example, eavesdropping, wiretapping, stalking)

Question 78

public disclosure of private true facts

Answer 78

Disclosure of true facts that 1) would be highly offensive to a reasonable person and 2) is not newsworthy

Question 79

portrayal in a false light

Answer 79

Publication of false information that would be highly offensive to a reasonable person

Question 80

vicarious liability for employer if

Answer 80

Employee is negligent within scope of employment, or detour (not frolic), intentional torts outside scope unless authorized of furthering business

Question 81

vicarious liability: IC

Answer 81

NOT vicariously liable for negligence of IC unless 1) IC is engaged in inherently dangerous activity 2) duty is non delegable as a matter of public policy or safety (e.g. shopkeeper to keep premises safe for public)

Question 82

when is parent under a duty to exercise reasonable care to control his minor child

Answer 82

if the parent 1) knows or has reason to know that he can control
his child and 2) knows or should know of the necessity and opportunity for exercising such control

Question 83

fraudulent misrepresentation

Answer 83

1) Material misrepresentation made with intent or knowledge to mislead
2) Π reasonably relied on the misrepresentation

Question 84

negligent misrepresentation

Answer 84

Material misrepresentation made with negligent or innocent scienter, and Π reasonably relied on the misrepresentation

Question 85

fraudulent nondisclosure

Answer 85

Silence when there was a duty to disclose a material fact, and Π reasonably expected disclosure

Question 86

malicious prosecution

Answer 86

Institution of criminal/civil proceedings against Π (former Δ)
1) without probable cause
2) without proper purpose (malice)
3) where Π prevailed on the merits
4) and Π suffered damages

Question 87

abuse of process

Answer 87

Wrongful use of process for an ulterior purpose + act or threat against Π to accomplish purpose

Question 88

interference with contractual relations

Answer 88

Δ knew of valid K between Π and 3P + acted with purpose of having K
breached or made harder to perform + damages

Question 89

loss of consortium and services

Answer 89

Π spouse may recover against Δ for injuring Π’s spouse and depriving the benefits of the spousal relationship, including the loss of companionship, comfort, society, and sexual relations

Question 90

survival action

Answer 90

Cause of action that survives the death of a party, only applicable to injury to property and person, not to personal interests (e.g., defamation, privacy, malicious prosecution) which expire upon death

Question 91

wrongful death

Answer 91

Actions based on wrongful death provide monetary relief for injury resulting to the spouse and next of kin (but not to creditors).

Recovery is allowed to the extent that the deceased could have recovered in an action had he lived; e.g., decedent’s contributory negligence reduces wrongful death recovery in comparative negligence jx