TORTS

Question 1

Battery

Answer 1

Intentionally harmful or offensive contact to the plaintiff or anything physically or closely connected thereto.

∆ does not have to intend for the contact to be harmful/offensive, only that they “know with substantial certainty that contact will occur.”

Defense = consent.

Question 2

“Harmful/Offensive Contact” for Purposes of Battery

Answer 2

Must be offensive to a reasonable person.

“Violates a person’s reasonable sense of personal dignity.”

Plaintiff need not be aware of the contact, unlike assault.

Question 3

Transferred Intent

Answer 3

If ∆ has the requisite intent to inflict an intentional tort to a victim, but then ends up causing injury to the plaintiff, the ∆’s requisite intent is transferred to the plaintiff.

Question 4

Assault

Answer 4

∆ intentionally causes the plaintiff to be put into reasonable apprehension of imminent harmful or offensive contact.

“Reasonable apprehension”: Objective standard; does not matter if the ∆ could not have actually carried out the threat (i.e. threats with an unloaded gun will still constitute assault)

Question 5

False Imprisonment

Answer 5

Intentional confinement of another to a bounded area via physical barrier or threat of force with no reasonable means of a safe escape.

Plaintiff must be aware of the confinement, or if unaware, have been actually injured.

Confinement can be for any length of time.

“Reasonable escape” will bar liability, but must be safe/not expose the plaintiff to embarrassment.

Defense = consent.

Question 6

Intentional Infliction of Emotional Distress

Answer 6

1. Intentional/reckless extreme or outrageous conduct
2. Directed at the plaintiff,
3. That causes the plaintiff to experience extreme emotional distress,
4. Resulting in physical or pecuniary injury.

Conduct must “exceed all bounds tolerated by civilized society.”

Offensive language alone is generally not sufficient, unless ∆ is a common carrier/innkeeper, knows of the plaintiff’s particular sensitivities, or is an authority figure using racial slurs.

Question 7

Interpreting IIED

Answer 7

Court will consider:
- The vulnerability of the plaintiff;
- The relationship between plaintiff and ∆;
- ∆’s pattern of conduct;
- ∆’s knowledge of plaintiff’s susceptibility to emotional distress, if any.

An isolated incident is less likely to rise to the level of IIED than a pattern of behavior.

No mere words/slurs will constitute IIED unless a special relationship exists.

Question 8

Trespass to Chattels vs. Conversion

Answer 8

Trespass to Chattels — Intentional interference with chattel, causing damages. Can recover actual or nominal damages.

Conversion — Intentionally interfering with plainitff’s property in a way that causes complete destruction or serious interference with property interest.

Factors include —
- The duration/extent of ∆’s control over the property;
- The ∆’s intentions;
- Any bad faith by ∆;
- Plainitiff’s expenses/inconvenience;
- The actual harm done to the chattel.

Question 9

Trespass to Land

Answer 9

∆’s intentional act causes a physical invasion onto the π’s land.

Entry can include the ∆ entering themselves, entering lawfully and then not leaving, or causing someone/something else to enter. (I.e. firing a gun onto property - bullet is trespassing)

“Physical invasion” could be as small as a particle (pollution/may require actual damages).

General OR specific intent required.

Mistake ≠ defense.

Remedy = actual or nominal damages; injunction.

Question 10

Intentional/Property Tort Defenses

Answer 10

POPCANS
1. Privilege (shopkeeper’s)
2. defense of Others (reasonable/proportional to imminent harm)
3. defense of Property (deadly force never okay)
4. Consent
5. Authority (police)
6. Necessity (public or private)
7. Self-defense (deadly force okay to protect from death, serious harm, trespass of habitation, or other forcible felony)

Question 11

Shopkeeper’s Privilege

Answer 11

∆ is not liable for false imprisonment if there was a reasonable suspicion that the π stole from the ∆’s shop, and detainment was for a reasonable time and manner on the premises or in the immediate vicinity.

Question 12

Private Nuisance

Answer 12

Requires a
(1) substantial and unreasonable interference with
(2) the π’s use or enjoyment of their land,
(3) that would be offensive to an average person in the community, and
(4) the injury to the π outweighs the usefulness of the ∆’s actions.

Court will conduct a balancing test weighing the following factors:
- Value of the ∆’s activity;
- Existence of any viable alternatives;
- Nature of the locality;
- Extent of the π’s injury;
- Who was there first.

Remedy = injunction.

Question 13

Public Nuisance

Answer 13

Unreasonable interference with a right commonly held by the general public.

The nuisance must damage all who come in contact with it.

To bring suit, the π must have suffered a different type of harm than the general public.

Question 14

Defamation

Answer 14

(1) Publication of defamatory material,
(2) concerning the plaintiff,
(3) which causes reputational harm.”

“Publication”: ∆ intentionally or negligently caused a 3rd party to hear/read/see the defamatory material and understand it.

“Defamatory Material”: Must be capable of believing and causing reputational harm. (I.e. not a hyperbole, exaggeration, etc.)

Plaintiff must be named or “identifiable by context”.

Plaintiff must establish falsity in their prima facie case, unless they are a private person in a matter of private concern.

Question 15

Libel vs. Slander

Answer 15

Libel — Written. Reputational harm presumed, damages must still be proven.

Slander — Spoken. Special damages (specific economic harm) required.

Slander per se — When the defamatory material alleges that the plaintiff committed a crime or makes statements regarding the plaintiff’s professional capacity, damages will be presumed.

Question 16

Republication Rule of Defamation

Answer 16

In addition to the original ∆, anyone who repeats/”republishes” the defamatory material may also be liable.

Question 17

Public vs. Private Necessity

Answer 17

Public — ∆ is not liable when acting to protect the public at-large from severe harm. (Absolute defense, ∆ not liable for any trespass or harm caused)

Private — ∆ is not liable when protecting themselves from emergency. *(Not an absolute defense, still liable for damages for any damages caused) *

The threatened injury to the ∆ must be greater than the potential harm to the π.

Question 18

Defamation Defenses

Answer 18

• Truth.
• Privilege: communications between spouses, between high-ranking officials, made in the legislature, or made in a judicial proceeding.

Question 19

Defamation of a Private Figure re: a Matter of Public Concern

Answer 19

Requires all of the elements of defamation + ∆ must have acted with malice OR negligence, proven by clear and convincing evidence.

Malice = presumed damages + punitive damages.
Negligence = actual damages.

Question 20

Defamation of a Public Figure/Official

Answer 20

Requires all of the elements of defamation + ∆ must have acted with actual malice (the knowledge or reckless disregard of the material’s falsity), proven by clear and convincing evidence.

Question 21

Negligence Definition

Answer 21

In any negligence action, the P must establish that:
1. The ∆ owed the P a duty to act as an ordinarily prudent person in conforming his conduct to a standard necessary to avoid an unreasonable risk of harm to others;
2. That the ∆’s conduct did not rise to that applicable standard of care, and that
3. That the ∆’s conduct was both the actual and proximate cause of the harm, that
4. Caused damages.

Question 22

Duty, in General

Answer 22

In general, one has a duty to act as an ordinarily prudent person to avoid an unreasonable risk to others within their geographical area, based on an objective standard.

A person’s skill, knowledge, and physical characteristics are taken into account to determine a ∆’s duty of care.

Question 23

Duty to Act/Rescue

Answer 23

In general, there is no duty to act/rescue, unless the ∆’s conduct created the need to rescue or a special relationship exists (employer/employee, common carrier, innkeepers, etc.)

Under the Georgia Good Samaritan Laws, a ∆ cannot be liable for good faith emergency care.

Question 24

Duty Owed by Landowners to Invitees

Answer 24

The standard of care that a landowner owes to a party depends on the class of the person.

An invitee is someone entering the land by invitation for a business benefit of the owner.

The landowner ∆ has a duty of ordinary care to keep the premises safe to invitees by inspecting and repairing premises. (Duty to inspect and repair)

Question 25

Duty Owed by Landowners to Trespassers

Answer 25

Whether foreseeable trespasser or not, the ∆ has a duty not to inflict willful or wanton injury.

Question 26

Duty Owed by Landowners to Licensees

Answer 26

Licensee — Generally a social guest, present by the landowner’s consent but not for a business purpose.

Duty not to inflict willful and wanton harm + general duty of reasonable care to prevent injury.

In Georgia, there is no duty to warn, inspect, or repair (that duty is only owed to invitees).

Question 27

Standard of Care Owed by Landlords

Answer 27

A landlord who is not in possession is liable to the tenant and third parties for damages arising from defective construction or from failure to keep the premises in repair.

Duty to warn of concealed defects or dangerous conditions.

Duty to maintain common areas of which they have exclusive control.

May have a duty to protect from known criminal activity.

Question 28

Standard of Care for Children

Answer 28

A child under 5 cannot be found negligent

A child 5-13 is held to the standard of care as a reasonable child of the same age, intelligence, or experience, and is presumed incapable of negligent.

UNLESS, they are engaging in an adult activity. Then, they will be held to a standard of care of a reasonably prudent adult engaged in such activity.

Children 14+ can be negligent; parents are liable up to $10,000 for their 14+ child’s willful or malicious injury to another.

Question 29

Attractive Nuisance Doctrine

Answer 29

An attractive nuisance is an “inherently dangerous man-made/artificial instrumentality that is attractive to children.”

Landowner has a duty of reasonable care to eliminate the danger or protect children from harm as long as the risk/danger from the attractive nuicance outweighs its utility.

Question 30

Negligence Per Se

Answer 30

A ∆ is liable as a matter of law if the plaintiff can establish that:
1. The ∆ violated a criminal statute/ordinance without excuse;
2. A plaintiff is a member of a class that the law was designed to protect;
3. The injury inflicted was the type that the law sought to prevent;
4. The ∆’s violation of the law was the actual + proximate cause of the plaintiff’s injury.

If any of the above don’t apply or there was an excuse, then the case proceeds under a reasonably prudent person standard.

Question 31

Standard of Care for Physicians

Answer 31

Physicians are required to possess the skill, knowledge, and training as other physicians within the same geographic community.

Specialists are held to a national standard.

Informed consent is required unless the plaintiff is unconscious, the risk is generally known, the patient waives, or the disclosure would be harmful.

Informed consent is always required for anesthesia or IV injections for contrast.

Question 32

Res Ipsa Loquitur

Answer 32

“The thing speaks for itself.”

Negligence is inferred when —
1. An incident does not ordinarily occur without negligence,
2. Any other potential causes have been eliminated with evidence,
3. The causation was within the ∆’s exclusive control, and
4. The plaintiff was not at fault at all.

Example: a surgical tool left in the body after surgery.

Question 33

Wrongful Death vs. Survival Statute

Answer 33

Wrongful Death: ∆’s survivors can sue for the full value of the ∆’s life.

Survival Action: (Think, the tort survives the death) ∆’s survivors can bring suit for any claims that the ∆ would’ve had at death.

Question 34

Intentional Misrepresentation

Answer 34

1. A knowing or reckless false assertion of fact,
2. Made with the intent to mislead,
3. That the plainitff reasonably and justifiably relied on,
4. After conducting their own investigation,
5. That resulted in special damages.

Question 35

Intentional Interference with Business Relations

Answer 35

When a non-privileged (non-competitor) plaintiff —

1. Purposely, with the intent to harm,
2. Caused a 3rd party to not do business with the plaintiff,
3. Which caused fiscal injury.

Question 36

Comparative Fault

Answer 36

GA allows partial comparative negligence as a defense to a negligence claim.

A plaintiff is contributorily negligent if his negligence was the proximate cause of the injury, or if he could have avoided the defendant’s negligence by exercising ordinary care.

If the plaintiff is more than 50% at fault than the ∆, they cannot recover.

If the plaintiff is less than 50% at fault, then their recovery is reduced by that amount of fault.

Liability of the ∆ is apportioned by proportionate fault.

Question 37

Abnormally Dangerous Activities

Answer 37

Strict liability will apply if there is a foreseeably high risk of injury even with reasonable care, the activity is not a commonly undertaken activity, and the type of harm was foreseen.

Question 38

Proximate Cause

Answer 38

Injury must have been a foreseeable result of the ∆’s breach. No intervening or superseding causes.

(Think Proximate = Palsgraf)

Question 39

Eggshell Plaintiff Rule

Answer 39

The extent of the harm done unto a plaintiff does not have to be foreseeable, only the harm itself.

Question 40

Actual Cause

Answer 40

Defendant’s conduct is the actual cause of the injury if the event causing injury would not have occurred but for the defendant’s conduct.

If there could be multiple ∆s/causes — the substantial factor test will apply.

If there is no ascertainable cause — the burden shifts to the ∆ to show that they were NOT the actual cause.

Question 41

Strict Liability

Answer 41

Plaintiff does not have to prove negligence, only causation and injury/damages. Applies to abnormally dangerous activites, animals, and products.

Question 42

Products Liability

Answer 42

1. Product was defective either in manufacture, design, or by failing to warn.
2. The defect existed at the time that it left the ∆’s control.
3. Defect caused the injury when used in a foreseeable way (defense = misuse).

May sue any merchant in the stream of commerce (manufacturer, distributor, or retailer).

Question 43

Product Liability “Defect”

Answer 43

Manufacture Defect — The product deviated from the intended specs.

Design Defect — The risk of the design outweighed the benefit, and there were other reasonable alternative designs.

Failure to Warn — There was a foreseeable risk that would not have been obvious to the ordinary user, which could have been avoided with instruction or warning.

Question 44

Vicarious Liability/Respondeat Superior

Answer 44

Employers are liable for the torts of their employees if it was committed within the scope of their employment.

A minor deviation in scope (a “detour”) will still apply, but not a substantial and unauthorized deviation (a “frolic”).

Intentional torts are generally outside the scope of employment unless authorized or done with the intention of benefiting the employer.

Employers are not liable for independent contracts over which they have no control (but may still be liable for negligent entrustment/hiring, etc.).

Question 45

Co-∆ Liability

Answer 45

Generally, each ∆ is only liable for their proportionate share of fault.

Joint and several liability only applies if the ∆s acted in concert and fault is indivisible.

If 1 ∆ pays off a joint judgment, they can seek contribution from other ∆s.

Question 46

Portrayal in a False Light

Answer 46

Portrayal in a false light means attributing to the plaintiff views that they do not hold or attributing actions to them that they did not take.

Must be such that a reasonable person would find it highly offensive.

Defendant must have communicated the material to a substantial number of people.

Question 47

Intrusion into Seclusion

Answer 47

When a ∆ intentionally intrudes into the plaintiff’s seclusion without their consent, in a manner which would be highly offensive to a reasonable person (includes non-physical intrusions, such as photographing someone in their backyard from off of the property).

Seclusion = the plaintiff’s “zone of privacy”.

Question 48

Interference with Prospective Advantage

Answer 48

Established when an un-privileged defendant —
1. Acted purposely and maliciously with intent to injure;
3. Induced a third party not to enter into or continue a business relationship with the plaintiff; which
4. Caused the plaintiff some financial injury.

“Interference with Business Relations” = actionable without an existing contract.
“Interference with Contract” = actionable when the defendant knows of an existing contract.

Question 49

Injurious Falsehood

Answer 49

• False statement;
• Actual malice;
• Published/made to another;
• Causing specific economic injury.

*Injurious falsehood protects ECONOMIC interests while defamation protects REPUTATIONAL interests. *

Question 50

Public Disclosure of Private Facts

Answer 50

1. Disclosure of private, non-public information about an individual,
2. To the public without their consent,
3. Which would be highly offensive to a reasonable person.

*Facts must not be newsworthy. *

Typically personal details such as medical information, financial details, or other intimate information.

Question 51

Tort Damages

Answer 51

A plaintiff must affirmatively prove actual damages; nominal damages are not available.

In tort actions, plaintiffs can seek general damages, such as past and future pain and suffering and loss of consortium.

Special damages, such as specific medical expenses, lost wages, loss of earning capacity, and property damages are also recoverable.

Attorney’s fees are not recoverable.

Punitive damages are only awarded against defendants who have acted willfully, wantonly, or with the intent to harm.

Question 52

Georgia “Dangerous Dog” Statute

Answer 52

Provides that an owner of a domestic animal may be liable for personal injury if the owner had prior kowledge of the animal’s dangerous propensities.

Georgia does not have a “first bite” rule.

Once an owner knows or has reason to believe that an animal is likely to cause injury, they have a duty to prevent such injury from occurring.

Question 53

Assumption of Risk

Answer 53

If a plaintiff

(1) had actual knowledge of danger,
(2) understood the risk associated with said danger, and
(3) voluntarily exposed themselves to the risk anyway,

assumption of risk may bar recovery.

Question 54

Survival Statute

Answer 54

When a decedent suffers personal injuries, the survival statute preserves a cause of action despite the decedent’s death.

Question 55

Wrongful Death

Answer 55

The heirs and personal representatives of the deceased may bring a wrongful death action to seek:
1. Lost wages over the decedent’s remaining life.
2. Medical + funeral expenses.
3. Pain and suffering.
4. Loss of consortium, if pursued by a spouse.

Punitive damages may also be recovered if the plaintiff can prove by clear and convincing evidence that the defendant’s actions constituted willful misconduct or malice. (No more than $250,000 unless specific intent to cause harm or under influence of alcohol/drugs)

Question 56

Voluntary Intoxication

Answer 56

A person who is voluntarily intoxicated is still held to the same reasonable person standard as they would be if they weren’t intoxicated.

“A voluntarily intoxicated person will be presumed sober for the purposes of a reasonably prudent person analysis.”

Question 57

Dangerous Instrumentalities (Guns)

Answer 57

When a parent provides a dangerous instrumentality to their child, or doesn’t provide but through their negligence the child accesses it, the standard for hte parent’s liability is **whether the parent knew of their child’s propensity for the specific dangerous activity. **

Question 58

Car Chase Liability

Answer 58

When a law enforcement officer pursues a fleeing suspect in hot pursuit, who then kills a civillian during the pursuit, the pursuit is not the proximate cause of the death unless the LEO acted with reckless disregard for proper law enforcement procedures in the officer’s decision to initiate or continue the pursuit.