Torts

Question 1

Beginning of a negligence essay

Answer 1

In any negligence action, a plaintiff must show that the defendant owed the plaintiff a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others, that the defendant’s conduct fell below the applicable standard of care, and that the defendant’s conduct was both the cause in fact and the proximate cause of the plaintiff’s injuries.

Question 2

Child’s duty of care:

Answer 2

A child owes the duty of care of a hypothetical child of similar age, intelligence, and experience, acting under similar circumstances.

Exception: if the child is engaged in adult activity then the child will be held to the same standard of care as a reasonably prudent adult engaged in such activity.

Some states recognize the tender years doctrine in which a child of less than seven years old cannot be found negligent.

Question 3

Duty to an undiscovered trespasser

Answer 3

(One who comes onto the land without permission or privilege who the premises owner does not know about)

Not owed any duty of care.

Question 4

Duty to a discovered trespasser

Answer 4

(Trespasser that the premises possessor knows or should know of).

Possessor must warn or make safe any unreasonably dangerous concealed artificial conditions that the landowner knows of

Question 5

Attractive nuisance doctrine

Answer 5

The premises possessor is liable if (1) he knows or has reason to know that children are likely to trespass, (2) the condition is one which he knows or should know involves an unreasonable risk of death or serious bodily harm, (3) the children because of their youth do not discover the condition or realize the risk involved, (4) the burden of eliminating the danger is slight compared with the risk involved and the benefit to the possessor, and (5) the possessor fails to exercise reasonable care to protect the children.

This doctrine applies only if the child is engaging in an activity appropriate for children (not adult activity).

Question 6

Duty to a licensee

Answer 6

(Social guest who has permission to enter the land but does not confer an economic benefit on the possessor of land)

Landowner must warn or make safe all concealed dangers (artificial or not, unreasonably dangerous or not) that the landowner knows of.

Question 7

Duty to an invitee

Answer 7

(Those that enter either to confer an economic benefit or enter land that is open to the public at large)

The premises possessor must warn or make safe all dangers that the landowner knows or should know of. The premises possessor has a duty to inspect!

Question 8

Negligence per se

Answer 8

A plaintiff can sue under this theory when the plaintiff can show three elements: (1) the defendant violated a statute without excuse; (2) the plaintiff was in the class of persons that the statute was trying to protect; and (3) the plaintiff received the injury hat the statute was trying to prevent.

If a plaintiff establishes the above elements, he has offered conclusive proof of duty and breach (must still prove causation and harm).

Question 9

Res ipsa loquitor

Answer 9

Allows the jury to infer negligence when the event is of a kind which ordinarily does not occur in the absence of negligence, other responsible causes are sufficiently eliminated by the evidence, and the indicated negligence is within the scope of the defendant’s duty tot he plaintiff.

Question 10

Eggshell-skull rule

Answer 10

A defendant takes his victim as he finds him. The plaintiff with an “eggshell skull” who suffers damages greatly in excess of those that a normal victim would suffer is entitled to recover fully for his injuries.

Question 11

Negligent infliction of emotional distress

Answer 11

May be applicable when the defendant is negligent and the plaintiff has not sustained any actual physical trauma to his body.

Generally must be a physical manifestation of the emotional distress.

Some jurisdictions only allow recovery if the plaintiff was within the zone of danger. Others allow it when the plaintiff was closely related to the victim, was located near the scene of the accident, and suffered shock resulting from the sensory and contemporaneous observance of the accident.

In almost all jurisdictions, mere receipt of news relating to an accident does not suffice.

Question 12

Comparative negligence

Answer 12

Majority law.

The trier of fact (judge/jury) apportions fault among the parties. The amount of damages apportioned to the plaintiff because of the plaintiff’s negligence is subtracted from the total damages awarded by the jury. This is known as pure comparative negligence.

Question 13

Contributory negligence—common law

Answer 13

Common law doctrine that states if the jury finds that the plaintiff’s negligence contributed to his injuries to any degree, the plaintiff cannot recover.

Question 14

Battery

Answer 14

An act with intent to cause a harmful or offensive contact or imminent apprehension of the contact and a harmful or offensive contact directly or indirectly results.

Question 15

False imprisonment

Answer 15

An act with intent to confine or restrain a person to a bounded area, actual confinement occurs, and the plaintiff knows of the confinement or is hurt by the confinement.

Question 16

Consent

Answer 16

Defense to an intentional tort—can be express or implied.

Question 17

An employer is vicariously liable for torts of its employees if

Answer 17

The torts are committed within the scope of employment (respondeat superior). Intentional torts are usually outside of the scope of employment unless they were done for the purpose of serving the employer or if they were foreseeable.

Question 18

The employer can be directly liable for his own negligence if

Answer 18

He fails to supervise employees or otherwise acts negligently in hiring, firing, or entrustment

Question 19

Indemnification

Answer 19

Full reimbursement for damages paid to the plaintiff. One defendant can seek 100% of the damages from the other defendant. Usually occurs when the paying defendant was not at fault in causing the plaintiff’s injuries, and the non-paying defendant was at fault.

Question 20

For strict products liability, the defendant must be a

Answer 20

Merchant, rather than a casual seller of goods.

Question 21

Under a manufacturing defect theory, the product must…

Answer 21

Be defective from the time it left the manufacturer’s hands.

Question 22

Who is liable for manufacturing defects?

Answer 22

All commercial sellers, including the store that sold the product.

Question 23

Standard of care for doctors (malpractice)

Answer 23

Most courts will apply a national standard of care to evaluate their conduct.

Question 24

Doctrine of apparent agency

Answer 24

A third party can be vicariously liable under this doctrine when claims of direct negligence and other types of vicarious liability (like respondeat superior) are not available.

There must be some reasonable basis for the plaintiff’s belief that the defendant was an agent of the third party, and the plaintiff must have relied on that belief.

Question 25

An activity may be characterized as abnormally dangerous if (two requirements)

Answer 25

1. The activity creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and
2. The activity must not be a matter of common usage in the community.

Note: in most states, the defendant is only liable to foreseeable plaintiffs; harm must result from the kind of danger to be anticipated from the abnormally dangerous activity.

Question 26

Scope of liability in a negligent hiring claim:

Answer 26

When an employer fails to act with reasonable care in hiring an individual, the employer opens itself up to potential liability if the employee subsequently causes harm of a type related to the negligence in hiring.

Employers are NOT liable for all possible activities or actions in which the employee might engage (ex: activities the employee undertakes when not working).

Question 27

Theories of products liability:

Answer 27

1. Intent
2. Negligence
3. Strict liability
4. Implied warranties
5. Express warranties

Question 28

Prima facie case for a products liability claim based in strict liability:

Answer 28

(1) commercial supplier of a product (2) producing or selling a defective product (3) actual and proximate cause (4) damages.

Plaintiff must prove that the defect existed when the product left the defendant’s control. For liability to attach, the product must also reach the plaintiff without substantial alteration.

Question 29

Is ordinary contributory negligence a defense in a strict products liability action where the plaintiff failed to discover the defect or guard against its existence, or where plaintiff’s misuse was reasonably foreseeable?

Answer 29

No.

Question 30

Is assumption of risk a defense to strict products liability?

Answer 30

It may be a defense where the plaintiff engaged in voluntary and unreasonable conduct and used the product despite discovering the defect and being aware of the danger.

Question 31

Land possessor duty to licensee:

Answer 31

Make safe any known, concealed, dangerous conditions on the property—whether man made or natural.

Question 32

Tortfeasors acting in concert

Answer 32

Under joint and several liability, when two defendants act in concert (together and by agreement) and cause harm to the plaintiff, the plaintiff can recover the full amount of plaintiff’s claim from either defendant.

(Ex: two defendants engaging in an illegal street race and driving over the speed limit).

Question 33

Liability for invasion of privacy elements

Answer 33

(1) details are so personal that its disclosure would offend a reasonable person even if the information is true; (2) the details are not generally known to the public; (3) the details are not newsworthy; and (4) the details are widely communicated.

Newsworthiness factors: social value of facts published and intrusion into private affairs.

Question 34

When can a nuisance claim be brought?

Answer 34

When there has been a substantial, unreasonable interference with another private individual’s use or enjoyment of a property he actually possessed or to which he has a right of immediate possession.

Question 35

“Coming to the nuisance”

Answer 35

A defense to nuisance that will bring down the plaintiff’s recovery chances.

Question 36

IIED

Answer 36

Intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress (even in the absence of physical harm).

Question 37

Bystander IIED

Answer 37

Plaintiff must prove she (1) is in a close relationship with the person injured by the defendant; (2) she was present at the scene of the injury; and (3) she personally observed or perceived the event.

Physical symptoms not usually required when all three elements are present.

Question 38

Partial/modified comparative negligence

Answer 38

Some jurisdictions: apportionment is not available unless the jury concludes that the plaintiff is less than 50% at fault. In these “partial” or “modified” comparative negligence jurisdictions, if the jury concludes that the plaintiff was 50% or more at fault, he cannot recover.

Question 39

An activity may be characterized as abnormally dangerous if:

Answer 39

It involves substantial risk of serious harm to person or property even when reasonable care is exercised.

Question 40

Whether an activity is an abnormally dangerous one is a question of:

Answer 40

Law that the court can decide on a motion for directed verdict.

Question 41

The courts generally impose two requirements for finding an activity to be abnormally dangerous:

Answer 41

(1) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and (2) the activity is not a matter of common usage in the community.

Question 42

Is a principal vicariously liable for the tortious acts of its agent if the latter is an independent contractor?

Answer 42

Generally, no.

One broad exception is when the contractor is engaged in inherently dangerous activities—an activity where there are special dangers to others inherent in or normal to the activity.