Torts

Question 1

Elements of a Negligent Tort

Answer 1

1) Duty
2) Breach
3) Causation
4) Proximate Cause
5) Damages

Question 2

Define Duty in Negligence

Answer 2

law recognizes a relationship between the defendant and the plaintiff, requiring the defendant to act in a certain manner

Question 3

Define Breach in Negligence

Answer 3

A defendant breaches such a duty by failing to exercise reasonable care. The issue of whether a defendant breached a duty of care is decided by a jury as a question of fact.

Question 4

Define Causation in Negligence

Answer 4

Under the traditional rules of legal duty in negligence cases, a plaintiff must prove that the defendant’s actions were the actual cause of the plaintiff’s injury

Question 5

Define Proximate Cause in Negligence

Answer 5

those harms that the defendant could have reasonably foreseen through their actions

Question 6

Define Damages in Negligence

Answer 6

The failure to exercise reasonable care must result in actual damages to a person to whom the defendant owed a duty of care

Question 7

Explain the Firefighters Rule and how it differs from a generic ‘rescuer’

Answer 7

There is no duty of care to professional rescuers harmed as a result of the initial act. However, a duty is owed if a further act other than that they are responding to causes the harm. In all jurisdictions, danger invites rescue, so actor owes a duty to all coming to their aid.

Question 8

What is the difference between Cardozo and Andrews’ view on who duty extends to?

Answer 8

Under Cardozo a duty is owed to anyone in the ‘zone of foreseeable danger’. Under Andrews owing a duty to one person transfers to a duty to all who may be harmed by that act.

Question 9

When does an actor gain a duty to protect others from a 3rd party?

Answer 9

Through a special relationship where the actor is aware that the public needs to be protected from a third party and volunteers for the duty. Generally, parents owe no duty to protect a third party from their children.

Question 10

How do you determine the extent of a business’s duty?

Answer 10

Under the totality of the circumstances, should the business have reasonably foreseen the harm. What is the gravity of the harm. balanced against the burden and expense of protecting against the harm.

Question 11

What are the special factors that tie doctors to a duty to protect third parties from their patients?

Answer 11

When the patient is incapable of understanding the risks of their condition, a doctor owes a duty to third parties to make the actor aware of these risks.

Question 12

What are the 3 classifications of occupant that a possessor of real property owes a duty to?

Answer 12

1) invitee, reasonable care to ensure safety, must remedy or notify an invitee of hazards on the property, only extends to the scope of the invite
2) licensee, reasonable care to ensure safety but there is no requirement to proactively warn a licensee unless the licensee would have no knowledge or it is unreasonably dangerous, limited to the scope of the license or they become trespassers
3) trespasser, an unknown trespasser is owed no duty except to not intentionally harm

Question 13

What is an attractive nuisance and who does it apply to?

Answer 13

An attractive nuisance is a harm that will entice another into falling victim to it. Usually applies to children who trespass onto property.

Question 14

What is the standard of care to determine if a breach of duty occurred?

Answer 14

The objective standard of the ‘reasonable person under the same circumstances’. The individuals actual characteristics are relevant only to the extent they physically alter the persons ability to perform certain tasks. Statutes may modify duty.

Question 15

How is breach by a child determined differently from an adult?

Answer 15

A child’s breach is determined through the subjective standard of their actual physical and mental characteristics. However, if the child engages in inherently adult activity, then courts will use the adult standards of breach.

Question 16

Standard of breach in Medical Malpractice?

Answer 16

General Practitioner most conform to the locality rule (conforms to local practices), the modified locality rule (typical practitioner with the same resources), or the reasonably skilled professional rule (ordinary skilled physician under the same conditions). Specialists are judged under a uniform standard. This requires some form of expert testimony.

Question 17

What is Negligence per se?

Answer 17

A defendant who violates a statute or regulation without an excuse is automatically considered to have breached their duty of care and is therefore negligent as a matter of law. Statute must:
1) make a mandatory or specific command
2) impose a criminal penalty
3) identify a class of person
4) identify specific conduct that is to be stopped

Question 18

What are defenses to negligence per se?

Answer 18

1) Obeying the law is more dangerous than not
2) the actors incapacity reasonably prevents compliance
3) the actor couldnt reasonably know they were not in compliance
4) the actor was confronting an emergency they didnt cause
5) actor made all reasonable efforts to comply

Question 19

Define res ipsa loquitor.

Answer 19

The plaintiff can create a rebuttable presumption of negligence by the defendant by proving that the harm would not ordinarily have occurred without negligence, that the object that caused the harm was under the defendant’s control, and that there are no other plausible explanations.

To prove res ipsa loquitur negligence, the plaintiff must prove 3 things:
1) The incident was of a type that does not generally happen without negligence
2) It was caused by an instrumentality solely in defendant’s control
3) The plaintiff did not contribute to the cause

Question 20

What are the 4 tests for actual causation?

Answer 20

1) But-for test, default test
2) Substantial Factor, when multiple forces combine and any 1 force is sufficient to cause the harm and it is impossible to tell which harm actually caused the injury, then the actor is considered to be a substantial factor in causing the harm
3) Concurrent Factor, when multiple factors including the actors cause harm but no single force could have done it alone, the actor is considered a concurrent factor in creating harm.
4) Alternative Causes, when multiple negligent actors act, at least one is the cause of the harm and its impossible to tell which, it is up to the actors to show that they were not the cause.

Question 21

What is proximate causation?

Answer 21

The causal connection is close enough that it is fair to hold the actor liable for the caused harm. the harm must be foreseeable even if the specific damages are not.

Question 22

What is a superseding force?

Answer 22

An unforeseeable event that breaks the causal chain.

Question 23

What is contributory negligence and how is it used?

Answer 23

Contributory negligence is an affirmative defense that the plaintiff failed to exercise reasonable care to prevent harm to themselves or their property. Generally, a showing that the plaintive is contributory negligence bars recovery.

Question 24

How is comparative fault different from contributory negligence?

Answer 24

Comparative fault assigns blame for an injury based on how much the defendant and the plaintiff contributed to the injury. Comparative fault does not bar recovery but limits any award to the percentage of fault the defendant was at. In a modified comparative fault state, passing a certain ratio of fault will bar recovery.

Question 25

What is the assumption of risk and how is it used as an affirmative defense?

Answer 25

Assumption of risk completely negates a negligence claim but not an intentional claim. Express assumption is done in clear and unambiguous language, orally or written, unless the assumption is for necessary medical treatment or there is an urgency that creates a disparity in bargaining positions. Implied assumption is when someone knowingly volunteers for an inherently dangerous activity or the victim consciously and knowingly enters or proceeds despite the created risk. Engaging in criminal activity always bars recovery.

Question 26

What are the components of a Strict Liability claim?

Answer 26

An action that is considered so dangerous that the actors duty is to prevent any harm from occurring.

1) activity is inherently dangerous
2) activity is unusual for the community
3) harm results from the dangerous activity

Question 27

What are the defense to Strict Liability?

Answer 27

1) Victim knowingly, willingly, and unreasonably confronts the risk of harm.
2) Victim voluntarily interacts with the harmful activity for personal gain.
3) Victim is an unknown and willful trespasser.

Question 28

Explain the 3 categories for animal ownership under strict liability.

Answer 28

1) Pets or domesticated animals, owner is only liable for known aggressive propensities and the harms reasonably caused as a result of those propensities.
2) Livestock, liable only for the foreseeable damages caused by the animals.
3) Wild Animals, actor is strictly liable for all claims stemming from wild animals and their foreseeable actions, including the propensity for rational adults to flee from those types of animals.

Question 29

What is the duty of care for product liability?

Answer 29

Reasonable care to prevent defective or dangerous products from entering the market. This duty extends to any individual who may come into contact with the product as a result of it being part of the stream of commerce.

Manufacturers have a duty to show reasonable care in the manufacture, testing, and warning of improper use.

Sellers only gain a duty of care if they knowingly sell a product that is defective. If the manufacturer has attempted to cure or remedy the defect then only the seller will maintain a duty.

Question 30

What harms does tort law cover?

Answer 30

Tort law compensates for the following:
1) Physical harm, impairment to the body, property, or real estate. Requires no additional elements to prove.
2) Emotional harm; disturbances to the mental/emotional tranquility. Harm must be shown to be intentionally afflicted.
3) Economic harm; such as lost wages, business customers, or goodwill. Requires a separate showing that there was some malpractice, misrepresentation, or tortuous interference with business relations or defamation.

Question 31

What is Vicarious Liability?

Answer 31

An action done by an employee, committed during work hours, through the scope of their employment. Requires that the company have control over when and how the actor is acting.

Question 32

Are employers held vicariously liable for independent contractors?

Answer 32

Vicarious Liability extends to independent contractors only if the job carries with it the inherent risk of danger regardless of how carefully the work is done, or if the duties are traditionally considered to be non-delegateable by public policy.

Medical care; The hospital must openly provide care, the patient then reached out to receive that care, expecting and fully believing that the physician is an employee of the hospital.

Shoddy Construction; If a contractor is hired, the employer retains control of the property during work, such that it would appear to a third party that the employer is in control of the situation. If, however, the work is done improperly, in a way that creates extra risk of harm, and the employer is not and has no reason to know, vicarious liability will not be extended.

Question 33

Can you recover for emotional distress?

Answer 33

Generally, in order to recover for emotional distress, you must show that the distress can trace back to a specific physical harm.

Intentional Infliction of Emotional Distress; if it can be shown that the defendant intended to inflict emotional distress, then no other factors are needed to be proved. This is done by the following:
1) physical impact no matter how slight
2) claimant was in the zone of danger
3) claimant was a bystander present, contemporaneous to the observance, of a close family relation, being physically injured, as it occurred

or in extreme cases such as the mishandling of remains

Question 34

What is apportioning responsibility?

Answer 34

Courts can apportion the responsibility from a tort by asking if the injury was caused my independent actors and is divisible, indivisible, or done in concert.

divisible injury; causal apportionment
indivisible; degree of culpability
in concert; joint and several liability

Question 35

What are the components of Misrepresentation?

Answer 35

1) False statement of past or present fact
2) fact is material
3) actor acts with the intent that the victim will act on this knowledge
4) actor knows the victim will think the fact is relevant
5) victim relies to their detriment

Question 36

What are the elements to tortuous interference?

Answer 36

1) Valid or perspective contract between victim and third party with any financial benefit
2) Actor has knowledge of this contract
3) Actor intentionally causes or induces the 3rd party to fail to perform or prevent the contract from coming to fruition
4) The interference is unjustified
5) Victim suffers actual harm

Question 37

What are punitive and compensatory damages?

Answer 37

Compensatory damages are intended to make an individual whole.

Punitive damages are punishments intended to change the defendant’s future behavior. Requires an additional showing that the actors actions were so outrageous as to warrant, at the fact finders discretion, that based on the opponents conduct, motive, nature and extent, and actors wealth additional damages are necessary to prevent the future conduct reoccurring.

Question 38

What are the 7 Intentional Torts?

Answer 38

Assault, Battery, False Imprisonment, IIED, Trespass to Land and Chattel, Conversion, and Defamation

Question 39

Elements of Battery

Answer 39

Intentional, harmful, physical conduct

Question 40

Elements of Assault

Answer 40

Intentionally places the victim in reasonable apprehension of imminent battery. Words alone are insufficient to do this.

Question 41

Elements of False Imprisonment

Answer 41

Intentional confinement to a bounded area without means of escape and the victim is aware of this confinement.

Question 42

Elements of IIED

Answer 42

Intentional infliction of distress through extreme or outrageous conduct that transcends the bounds of decency. Actions must be considered atrocious and utterly intolerable. The actions must intentionally or recklessly cause a reasonable person to suffer.

Question 43

Elements of Trespass to Land

Answer 43

Intentional and unlawful entry with the intent to produce the an unlawful entry. note - the intent is to enter the area, not the intention to do something unlawful, so knowledge that the actor is committing trespass is not an element to trespass.

Question 44

Elements of Conversion

Answer 44

Intentionally exercising control over chattel by interfering with a superior possessor right so extensively as to deprive the owner of the right.

Question 45

Elements of Trespass to Chattel

Answer 45

Intentional, partial conversion of chattel that deprives some use to the owner. Only requires compensation to make the owner whole again.

Question 46

Defenses to Intentional Torts

Answer 46

1) Self-Defense; may use physical force to defend self, others, or property if actor believes there is an immediate danger of force or confinement. The response must be proportional to the harm and done with the belief that force will stop the harm.
2) Necessity; public or private, harm is caused in attempt to prevent greater harm. A private necessity still renders the actor liable for damages. A public necessity alleviates all culpability for reasonable damages.
3) Consent; defense to all intentional torts. must be informed and not by mistake or misrepresentation. Must be voluntary and not coerced, by a person with the capacity to provide consent. Consent extends to all reasonably foreseeable results. Implied consent may exist where person cannot give consent but actor reasonably believes that consent would be given if capable.
4) Immunity

Question 47

Explain Defamation and how to recover damages.

Answer 47

Defamation is the intentional publishment of a false or defamatory statement about the victim. Due to Constitutional restrictions proving defamation based on a public concern also requires a showing that the statement was intentionally false and made with malice.

To recover damages, proof must be shown of reputational harms caused by the defamation. The harms may be direct or intangible harms flowing from the defamation. Damages may be recovered if the statement was mass published libel or slander (an accusation of criminal behavior, possessing a loathsome disease, victim possesses traits incompatible with their profession, or sexual morality)

Question 48

Privileges and Defenses to Defamation

Answer 48

Defenses; Consent to the defamation or prove the truth of the matter asserted.

Qualified immunity, Absolute immunity, Fair Reporting, Executive privilege, Legislative privilege, Spousal privilege

Question 49

Misappropriation of Identity

Answer 49

Using the victim’s identity for personal profit.

Question 50

Intrusion upon Seclusion

Answer 50

Intrusion on a private matter of a highly offensive nature.

Question 51

False Light

Answer 51

Publicizing private information to the public at large.

Question 52

Public Disclosure of Private Acts

Answer 52

Private facts, not of public interest, that are highly offensive to a reasonable person, even if the information is true.

Question 53

Nuisance

Answer 53

Unreasonable interference with the use and enjoyment of real property.

Public nuisance requires a private individual who will suffer very particularized damages as a result of the nuisance or a representative of the general public at large.