Torts

Question 1

Nuisance
(Private & Public)

Answer 1

A nuisance arises from any unreasonable interference with the use and enjoyment of one’s land. Nuisances are classified into two categories:

(1) Private Nuisance: substantial and unreasonable interference with an individual’s or entity’s private use and enjoyment of their property. Examples include a neighbor’s excessively loud music or noxious fumes from a factory affecting a nearby home.

(2) Public Nuisance: unreasonably interferes with a right common to the general public. It can manifest as obstructions to public pathways or excessive noise in public spaces.

Remedies: compensation or injunctive relief to halt the continuation of the nuisance.

Special “coming to the nuisance” principle: A plaintiff who intentionally relocates to an area with a pre-existing nuisance, particularly with an intent to litigate, may find it challenging to recover damages.

Question 2

Privacy - Appropriation

Answer 2

Appropriation is the unauthorized use of the plaintiff’s name or likeness for commercial purposes without the plaintiff’s consent.

Newsworthiness exception: there is no liability for the use of plaintiff’s name or likeness for the purpose of reporting news.

Question 3

False Light
(Privacy)

Answer 3

The widespread publication of a falsehood or seriously misleading statement about another that would be highly offensive to a reasonable person.

If the matter is of public concern, the defendant must act with actual malice, meaning they knew the statement was false or acted with reckless disregard for its truth or falsity.

There is no newsworthiness exception.

Question 4

Defamation (Entire Rule)

Answer 4

Communication of a false statement that harms or is offensive to the plaintiff’s reputation. To prove defamation, a plaintiff must show:

(1) A defamatory statement;
(2) “Of and concerning” the plaintiff;
(3) Published to a third party who understands its defamatory nature; and
(4) Caused harm to the plaintiff’s reputation.

Public concern or when the plaintiff is a public figure or official = The plaintiff must prove the statement’s falsity and that the defendant acted with actual malice (defendant knew the statement was false or recklessly disregarded its truth or falsity)

Question 5

Duty of Care
(Negligence)

Answer 5

A general duty of care to act as a reasonable person is owed to all foreseeable plaintiffs. The general standard of care is that of a reasonably prudent person under the circumstances.

Under the majority view, the plaintiff must be within the foreseeable zone of danger from the defendant’s activity to be owed a duty of care.

Under the minority view, the duty of care is owed to anyone.

Question 6

Assault

Answer 6

To prove assault, the plaintiff must show:

(1) an act by the defendant creating a reasonable apprehension in the plaintiff of immediate harmful contact or offensive contact to the plaintiff’s person,
(2) intent by the defendant of the contact, and
(3) causation.

Question 7

Battery

Answer 7

The plaintiff must show:

(1) an act by the defendant that brings about harmful contact or offensive contact to the plaintiff’s person,
(2) intent by the defendant to bring about such contact, and
(3) causation.

Anything connected to the plaintiff’s person is viewed as part of the plaintiff’s person.

A person may recover for battery even if they are not conscious of the harmful or offensive contact.

Question 8

False Imprisonment

Answer 8

The plaintiff must show:

(1) an act or omission by the defendant that confines or restrains the plaintiff to a bounded area,
(2) intent of the defendant’s part to confine or restrain the plaintiff, and
(3) causation.

False imprisonment may be accomplished by a threat of force against the plaintiff and it does not matter how short the time period of the restraint was.

Question 9

Intentional Infliction of Emotional Distress (IIED)

Answer 9

Extreme or outrageous behavior by a defendant, either carried out intentionally or recklessly, that induces severe emotional distress in a plaintiff.

The plaintiff must establish the following elements:

1) The defendant engaged in extreme or outrageous conduct;
2) The defendant acted intentionally or recklessly;
3) The defendant’s actions were the cause of the plaintiff’s injury; and
4) The result was severe emotional distress for the plaintiff.

Question 10

Trespass to Chattels

Answer 10

An act by the defendant interfering with the plaintiff’s right of possession in chattel, with intent and causation, resulting in damages.

Actual damages are required, but loss of possession is considered actual harm.

If interference is severe enough to claim dominion over the chattel, it constitutes conversion.

Question 11

Conversion

Answer 11

An act by the defendant interfering with the plaintiff’s right of possession in chattel, serious enough to warrant payment of the chattel’s full value, with intent and causation.

Question 12

Trespass to Land

Answer 12

A physical invasion interfering with the plaintiff’s exclusive possession of land.

Question 13

Consent
(Defense)

Answer 13

An affirmative defense to intentional torts requiring plaintiff’s legal capacity.

Consent can be express (not obtained through fraud or duress) or implied through custom or defendant’s reasonable interpretation of plaintiff’s conduct.

The defense is limited to the consent’s scope.

Question 14

Defensive Force

Answer 14

The defendant may respond to an imminent or ongoing threat with defensive force, provided the belief in the threat is reasonable (reasonable mistakes are permissible), and the response is proportionate to the circumstances. Deadly force may not be used to protect property alone.

Question 15

Necessity
(Defense - Public & Private)

Answer 15

Defendants may claim public or private necessity.

Public necessity involves invading plaintiff’s property during an emergency to protect the community or a significant group, with no damages payable.

Private necessity involves invading plaintiff’s property to protect defendant’s interests, with liability for actual damages but not nominal or punitive damages. During the emergency, the plaintiff cannot eject the defendant from the land.

Question 16

Defamation: Public Concern

Answer 16

For matters of public concern, plaintiffs must prove fault and falsity.

Public figures must prove actual malice (knowledge of falsehood or reckless disregard for truth), while private figures must prove negligence concerning falsity.

If defendant is only negligent, only actual injury damages are recoverable, but if malice is proven, damages may be presumed, and punitive damages may be awarded.

Question 17

Defenses to Defamation

Answer 17

Defenses include:

1. consent,
2. truth,
3. absolute privilege (judicial proceedings, legislative debate, federal executive officials, spouses), and
4. qualified privilege (official proceedings reports, statements in publisher’s interest, recipient’s interest, common interest of publisher and recipient).

Qualified privilege may be lost if outside the scope or malice is shown. The defendant bears the burden of proving privilege.

Question 18

Privacy - Misappropriation

Answer 18

Misappropriation occurs when the defendant uses the plaintiff’s name or image for a commercial purpose. This tort can apply to everyone, not just famous people. However, if it is a matter of public concern, then it it falls within the newsworthiness exception.

Question 19

Privacy - Intrusion

Answer 19

Invasion of plaintiff’s physical seclusion in a manner that would be highly offensive to the average person.

Question 20

Privacy - False light

Answer 20

The widespread dissemination of a material falsehood that would be highly offensive to an average person. Overlaps with defamation (economic damages), but false light allows for social and emotional damages, and the falsehood need not be defamatory.

Question 21

Privacy - Publication of Private Facts

Answer 21

The widespread dissemination of confidential information about the plaintiff that would be highly offensive to an average person. The newsworthiness exception may apply.

Question 22

Negligence
(All elements)

Answer 22

To prevail in a negligence action, the plaintiff must show:

(1) the defendant owed a DUTY of care,
(2) a BREACH of that duty,
(3) CAUSATION: that this breach directly and proximately caused the harm, and
(4) DAMAGES suffered.

Negligence assessment uses an objective standard, comparing the defendant’s behavior to that of a reasonable person under the circumstances.

Question 23

Duty to Trespassers

Answer 23

Property owners typically owe no duty to unknown trespassers, who enter land without permission or privilege.

However, if the property owner is aware, or reasonably should be aware, of regular trespassers, they owe a duty to either warn or make safe any artificial conditions on the property that could cause death or serious bodily injury to anticipated trespassers. The duty owed to known trespassers extends to situations where the dangerous condition is known to the possessor of the land but concealed from or not readily apparent to the trespasser.

Therefore, if the possessor of land is aware of a hidden danger and anticipates trespassing, they have a duty to take reasonable steps to avert the danger or provide a suitable warning.

Question 24

Duty to trespassing Children
(Attractive Nuisance Doctrine)

Answer 24

The duty owed to trespassing children may be more extensive under the attractive nuisance doctrine.

Property owners must exercise reasonable care to avoid foreseeable harm to children caused by artificial conditions on the property.

The plaintiff must show:
1. the presence of a dangerous condition,
2. owner’s awareness,
3. young persons frequenting the vicinity,
4. the condition causing injury due to the child’s inability to appreciate risk, and
5. the remedy’s expense being slight compared to the risk magnitude.

There’s no need to show the child was lured onto the property by the dangerous condition.

Question 25

Duty to Invitees

Answer 25

An invitee enters the property for purposes related to the property owner’s business. The property owner owes invitees a duty to use reasonable care in maintaining the property’s safety, including reasonable inspections, warning or making safe nonobvious dangerous conditions, and exercising ordinary care during active operations on the property.

Question 26

Duty to Licensees

Answer 26

A property owner owes a duty to protect licensees from all known traps on the land, natural or artificial. The condition must be concealed and the property owner must have had prior knowledge of the condition.

Question 27

Statutory Duty of Care

Answer 27

The standard of care in negligence cases may be established by a statute providing a criminal penalty.

The statutory duty replaces the general common law duty of care if
1. the plaintiff is in the protected class and
2. the statute intends to prevent the type of harm suffered.

Most courts treat a statutory violation as negligence per se, a conclusive presumption of duty and breach. However, no duty exists under the statute if compliance is more dangerous than violation or impossible under the circumstances.

Question 28

Breach of Duty

Answer 28

A breach of duty occurs when the defendant’s conduct falls below the required standard of care.

Question 29

Actual Cause

Answer 29

The defendant’s conduct is the actual cause of the plaintiff’s injury if it would not have occurred but for the defendant’s conduct.

Question 30

Res Ipsa Loquitur

Answer 30

The plaintiff may establish a breach of duty without identifying the specific wrongdoing. The plaintiff must show the accident type is typically associated with negligence and would normally result from negligence by someone in the defendant’s position, demonstrated if the defendant controlled the injury-causing instrumentality.

Question 31

Proximate Cause

Answer 31

The defendant is liable for harmful results within the increased risk caused by their conduct. If their negligence created a foreseeable risk involving an intervening force, they are liable for the harm caused. A non-foreseeable crime or tort by another person is considered a superseding force, cutting off the defendant’s liability.

Question 32

Damages

Answer 32

A plaintiff is entitled to compensation from the tortfeasor for all damages, even if the extent or severity of the harm is unforeseeable (tortfeasor takes the victim as they find them).

Question 33

Comparative Negligence

Answer 33

In a negligence case, both parties are held to a standard of reasonable care. The defendant’s liability depends on whether they breached this standard, causing the plaintiff’s injury.

Meanwhile, the plaintiff’s adherence to this standard is evaluated under the comparative negligence system, which has largely replaced the traditional doctrines of contributory negligence and assumption of risk.

This system weighs the plaintiff’s negligence against that of the defendant, reducing the plaintiff’s recoverable damages in proportion to their degree of fault.

In a pure comparative negligence system, the plaintiff may recover some damages regardless of their level of fault. However, in a modified or partial comparative negligence system, the plaintiff may be barred from recovery if their level of negligence exceeds a specified threshold.

Question 34

Abnormally Dangerous Activity - Strict Liability

Answer 34

Strict liability applies to abnormally dangerous activities, which involve
(1) substantial risk of harm,
(2) regardless of the care exercised, and
(3) are uncommon in the community.

Question 35

Strict Products Liability

Answer 35

A commercial seller may be strictly liable for injuries caused by a defective product. To prevail, a plaintiff must show (1) defendant as a commercial supplier, (2) production or sale of a defective product, (3) actual and proximate cause, and (4) damages.

Question 36

Strict Products Liability - Commercial Supplier

Answer 36

Strict liability applies to commercial suppliers placing products in the stream of commerce, but not casual sellers. Foreseeable plaintiffs, including bystanders, can sue any commercial supplier in the chain of distribution, regardless of contractual relationship.

Question 37

Strict Products Liability - Production or Sale of a Defective Product

Answer 37

Plaintiffs need not prove defendant’s fault in selling or producing a defective product, only that the product is defective. Main categories of defects are manufacturing defect and design defect (including inadequate warning). Suppliers must anticipate reasonably foreseeable uses, even if they are misuses.

Question 38

Manufacturing Defect

Answer 38

A product has a manufacturing defect if it departs from its intended design and is more dangerous than properly made products, even if all possible care was exercised in its assembly and marketing. This defect is usually determined by showing the product did not conform to the manufacturer’s specifications or to other identical units in the product line.

Question 39

Design Defect

Answer 39

A design defect occurs when a product could have been made safer without significantly impacting its price or utility.

Question 40

Inadequate Warnings

Answer 40

A product is defective if the manufacturer fails to provide adequate warnings about the risks involved in using the product, and the danger is not apparent to users.

Question 41

Government Safety Standards

Answer 41

Noncompliance with government safety standards establishes a product as defective, while compliance is evidence, but not conclusive, of the product being non-defective.

Question 42

Actual Cause (Product Defects)

Answer 42

Plaintiff must show the defect existed when the product left the defendant’s control.

Question 43

Proximate Cause (Product Defects)

Answer 43

The injury type must be foreseeable at the time the product was placed in the stream of commerce. Defendants aren’t liable for unforeseeable dangers at the time of marketing.

Question 44

Assumption of Risk (Products Liability)

Answer 44

Plaintiff may be denied recovery if they assumed the risk of damage caused by the defendant’s act. The risk must be a known risk and the plaintiff voluntarily proceeded in the face of it.

Question 45

Contributory/Comparative Negligence (Products Liability)

Answer 45

Contributory negligence isn’t a recognized defense in strict products liability for most jurisdictions.

Most follow either partial or pure comparative negligence.

Question 46

Negligence test for defective Product

Answer 46

In a negligence-based product liability claim, the plaintiff must show that

(1) the defendant had a duty to sell a safe product,
(2) the defendant breached that duty by negligently designing, manufacturing, or marketing the product,
(3) this breach was the actual and proximate cause of the plaintiff’s injury, and
(4) the plaintiff suffered damages as a result.

Negligence in marketing can also include failure to warn about a product’s inherent dangers or to provide adequate instructions for its safe use.

Question 47

Duty of Care in Products Liability

Answer 47

Duty of care is owed to all foreseeable plaintiffs, including users, bystanders, and consumers. Privity is not required. The standard of care is that of a reasonably prudent manufacturing company.

Question 48

Breach (Products Liability)

Answer 48

Breach is established by the defendant’s negligent conduct leading to the supply of a defective product.

Question 49

Proximate Cause (Products Liability)

Answer 49

The injury type must be foreseeable at the time the product was placed in the stream of commerce. Defendants aren’t liable for unforeseeable dangers at the time of marketing.

Question 50

Vicarious Liability

Answer 50

Employers may be liable for employee’s torts within the scope of employment. Intentional torts are typically outside the scope unless involving force, friction, conflict, or advancing employer interests. No vicarious liability for independent contractors or drivers doing favors, except when an invitee is injured.

Question 51

Joint Liability

Answer 51

Co-defendants are jointly and severally liable, allowing plaintiffs to recover the full amount from any defendant. Defendants can then seek contribution from other defendants.

Question 52

Negligent Infliction of Emotional Distress

Answer 52

Negligent Infliction of Emotional Distress (NIED) arises when a defendant’s negligence causes severe emotional distress or psychological harm to the plaintiff. Some jurisdictions recognize “bystander” NIED claims are recognized, where a plaintiff who witnesses a traumatic event happening to a close relative (like a spouse or child), and suffers emotional distress as a result, may have a claim even if they weren’t directly involved in the event.

Question 53

Duty to Rescue

Answer 53

There is no general affirmative duty to rescue, except by a professional rescuer. Two exceptions exist:

(1) One whose conduct places another in a position of peril has a duty to assist the person, and
(2) Once any person decides to assist in a rescue, he must act as a reasonable person in an emergency situation.

Question 54

Pure Comparative Negligence

Answer 54

Under the pure comparative negligence rule, the state allows the plaintiff to claim damages for the 1% they are not at fault even when they are 99% at fault.

In other words, the amount of damages that the plaintiff can collect is limited based on the assigned fault determined by the court.

Question 55

Modified Comparative Negligence

Answer 55

The plaintiff may not recover damages if they are found to be 50% or more at fault.

Question 56

Contributory Negligence

Answer 56

Under the contributory negligence rule, the plaintiff cannot recover any damages if they contributed in any way to the incident. In other words, the state recognizing contributory negligence rule prevents the plaintiff from collecting damages even when they were found to only be 1% negligent.