Torts

Question 1

defamation

Answer 1

1) defendant’s defamatory language
2) of or concerning the plaintiff
3) is published to a third party who understands its defamatory nature, and
4) damages the plaintiff’s reputation

for matters of public concern:
5) defendant is at fault

if plaintiff is a public official or public figure:
5) actual malice

for both matters of public concern and public official/figure:
6) the defamatory statement is false

Question 2

assumption of the risk

Answer 2

plaintiff knowingly and voluntarily accepted the risk

• knowingly: subjective, full understanding of the scope of the risk at hand
• voluntarily: without coercion or threat

Question 3

contributory negligence

Answer 3

when plaintiff’s negligent conduct is a substantial cause of plaintiff’s injury, recovery is barred

Question 4

battery (tort)

Answer 4

defendant causes harmful or offensive contact with the person of another, with intent to cause that contact or apprehension of that contact

Question 5

assault (tort)

Answer 5

defendant engages in an act that causes reasonable apprehension of imminent harmful or offensive bodily contact, with intent to cause apprehension of such contact or the contact itself

Question 6

IIED

Answer 6

defendant:
1) intentionally or recklessly
2) engages in extreme and outrageous conduct that
3) causes plaintiff severe emotional distress

plaintiff is a public figure:
4) defendant published a false statement of fact with actual malice

Question 7

false imprisonment

Answer 7

1) defendant intends to confine or restrain another within fixed boundaries
2) defendant’s actions directly or indirectly result in confinement
3) plaintiff is conscious of the confinement or harmed by it

Question 8

conversion

Answer 8

1) defendant intentionally exerted dominion or control over the plaintiff’s chattel
2) the interference was so severe that the plaintiff should recover the fair market value of the chattel at the time of the conversion

Question 9

negligence per se

Answer 9

1) defendant violated statute or ordinance
2) plaintiff suffered type of harm statute or ordinance was intended to prevent
3) plaintiff is in class of persons statute or ordinance was intended to protect

-still must prove causation and damages

Question 10

res ipsa loquitur

Answer 10

defendant’s negligence can be inferred when:

1) plaintiff suffered a type of harm that is usually caused by negligence of someone in the defendant’s position, and
2) the evidence tends to eliminate other potential causes of that harm

Question 11

intrusion upon seclusion

Answer 11

an intentional intrusion (physical or otherwise) on the plaintiff’s solitude, seclusion, or private affairs that would be highly offensive to a reasonable person

Question 12

public disclosure of private facts

Answer 12

publicity given to the plaintiff’s private matter that 1) does not address a legitimate public concern, 2) would be highly offensive to a reasonable person, and 3) causes damages

Question 13

appropriation of name or likeness

Answer 13

the unauthorized use of the plaintiff’s name, picture, or likeness for a personal benefit

Question 14

publicity in a false light

Answer 14

publicity given to 1) false information about the plaintiff 2) with actual malice 3) that places him in a false light 4) that would be highly offensive to a reasonable person and 5) causes damages

Question 15

NIED

Answer 15

three theories:

• zone of danger: 1) plaintiff was in zone of danger of threatened physical impact, 2) threat of physical impact caused emotional distress (must be manifested by physical symptoms)
• bystander recovery: 1) plaintiff is closely related to the person injured by defendant, 2) was present at scene of injury, 3) personally perceived the injury, and 4) experienced emotional distress (must be manifested by physical symptoms)
• special relationship: 1) a special relationship exists between the plaintiff and defendant, 2) defendant breached duty to avoid NIED
• i.e. mishandling a corpse or common carrier mistakenly reporting death of relative
• no need to prove threat of physical impact or physical symptoms

Question 16

private nuisance

Answer 16

a thing or activity that substantially and unreasonably interferes with another’s use and enjoyment of his land

• plaintiff must have a possessory right in real property
• substantial interference is offensive, inconvenient, or annoying to a normal, reasonable person in the community
• unreasonable if the nuisance outweighs the usefulness of the defendant’s actions

Question 17

public nuisance

Answer 17

• unreasonable interference with a right common to the general public
• private citizen only has a claim if she suffers harm different in kind from that suffered by members of the general public

Question 18

attractive nuisance

Answer 18

1) an artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass
2) land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children
3) the children, because of their youth, do not discover or cannot appreciate the danger presented by the condition
4) the utility of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children, and
5) land possessor fails to exercise reasonable care to protect children from the harm

Question 19

premises liability - trespassers

Answer 19

• landowner must refrain from willful, wanton, reckless, or intentional misconduct toward trespassers
• duty to exercise reasonable care in conducting activities on the land
• discovered or anticipated trespassers: duty to warn or protect them from concealed, dangerous, artificial conditions (by extension, no duty to warn of natural conditions, or artificial conditions that don’t involve risk of death or serious bodily harm)
• undiscovered trespassers: no duty

Question 20

premises liability - invitees

Answer 20

• duty of reasonable care, including inspecting the property, discovering unreasonably dangerous conditions, and protecting the invitee from those conditions
• duty to exercise reasonable care in conducting activities on the land
• invitees are business visitors or persons invited onto the land for the purpose for which the land is held open to the public
• invitee becomes trespasser if goes beyond scope of invitation

Question 21

premises liability - licensees

Answer 21

• duty to correct or warn a licensee of concealed dangers known to the land possessor or that should be obvious to her
• duty to exercise reasonable care in conducting activities on the land
• no duty to inspect for dangers
• licensees are persons who enter the land with permission of possessor or with privilege, such as social guests, emergency personnel, or people whose presence is tolerated (i.e. children cutting across the land on way home from school)