Torts

Question 1

When will a court hold a child or a mentally incompetent person liable for an intentional tort?

Answer 1

if they act with the requisite mental state.

Question 2

When may a defendant be liable to a third-party victim for IIED?

Answer 2

when his intentional or reckless conduct also causes severe emotional distress to a close family member of the individual who contemporaneously perceives the defendant’s extreme and outrageous conduct. The close family member need not suffer bodily harm.

or if that was his purpose

Question 3

What is the firefighter’s rule?

Answer 3

An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent in the job.

Question 4

What are the elements of assault?

Answer 4

1) Plaintiff’s reasonable apprehension,
2) Of an imminent harmful or offensive bodily contact,
3) Caused by the defendant’s action or threat,
4) With the intent to cause either the apprehension of such contact or the contact itself.

Question 5

What is the definition of a public nuisance?

Answer 5

A public nuisance is an unreasonable interference with a right common to the general public.

Note: A private citizen has a claim for public nuisance only if that citizen suffers harm that is different in kind from that suffered by members of the general public.

Question 6

What is the effect of a plaintiff’s negligence on a strict products liability action?

Answer 6

In most comparative-fault jurisdictions, the plaintiff’s own negligence reduces his recovery in a strict-products-liability action in the same manner as in a negligence action. In those jurisdictions, a plaintiff’s conduct that amounts to an “assumption of the risk” is treated as comparative negligence in order to reduce, but not eliminate, recovery.

Question 7

What are the elements of intentional infliction of emotional distress (IIED)?

Answer 7

1) The defendant’s intentional or reckless,
2) Extreme and outrageous conduct,
3) That causes,
4) The plaintiff severe emotional distress.

Question 8

What is the “merchant’s privilege?”

Answer 8

can stop someone if the merchant reasonably believes that the other has wrongfully (i) taken/is attempting to take merchandise; or (ii) failed to pay.

In addition, the merchant’s use of force against the other must be (i) on or near the premises, (ii) reasonable, and (iii) for a reasonable time.

Question 9

definition of trespass to chattel?

Answer 9

intentionally interferes with the plaintiff’s right of possession by either:
i) Dispossessing the plaintiff of the chattel; or
ii) Using or intermeddling with the plaintiff’s chattel.

Trespass to chattels requires that the plaintiff show actual harm to or deprivation of the use of the chattel for a substantial tim

Question 10

elements for intentional misrepresentation (i.e., fraud, deceit)?

Answer 10

The elements for intentional misrepresentation are:
i) The defendant made a misrepresentation of a material fact, opinion, intention, or law or failed to disclose a material fact when under an affirmative duty to do so;
ii) The defendant must have known the representation to be false or must have acted with reckless disregard as to its truthfulness (scienter);
iii) The defendant must have intended to induce the plaintiff to act (or refrain from acting) in reliance on the misrepresentation;
iv) The plaintiff must have actually relied on the misrepresentation;
v) The plaintiff’s reliance must have been justifiable; and
vi) The plaintiff must prove actual damages (nominal damages are not awarded).

Question 11

What defenses are available to a defamation action?

Answer 11

1) Truth, a truthful statement is not defamatory.
2) Consent is a defense, provided the scope of the consent is not exceeded.
3) Absolute privileges exist for statements made:
(i) In the course of judicial proceedings by the participants to the proceeding or legislative proceedings by witnesses to the proceedings;
(ii) Between spouses concerning a third person; and
(iii) As required publications by radio, television, or newspaper.
4) Qualified (conditional) privileges exist for statements:
(i) Made in the interest of the publisher (defendant), such as defending his reputation;
(ii) Made in the interest of the recipient of the statement or a third party; or
(iii) Affecting an important public interest.

Question 12

What elements must be established for violation of a statute to constitute negligence per se?

Answer 12

1) A criminal or regulatory statute imposes a specific duty for protection of others;
2) The defendant neglects to perform the duty;
3) The plaintiff is in the class of people intended to be protected by the statute; and
4) The harm is of the type the statute was intended to protect against.

Note: In a minority of jurisdictions, violation of the statute is merely evidence of negligence (a rebuttable presumption as to duty and breach rather than a conclusive presumption).

Question 13

What test is applied by most courts when the conduct of two or more defendants may have contributed to a plaintiff’s indivisible injury?

Answer 13

Substantial-factor test: In cases in which the conduct of two or more defendants may have contributed to a plaintiff’s indivisible injury, each of which alone would have been a factual cause of that injury, the test applied by most courts is whether the defendant’s tortious conduct was a substantial factor in causing the plaintiff’s harm.

Question 14

What are the elements of battery?

Answer 14

1) The defendant intends to cause a contact with the plaintiff
2) His affirmative conduct causes such a contact, and
3) The contact causes bodily harm or is offensive to the plaintiff.

Question 15

Who may be a defendant in a strict products liability action?

Answer 15

The defendant must be in the business of selling or otherwise distributing products of the type that harmed the plaintiff, which includes the manufacturer of the product, its distributor, and its retail seller.

Question 16

What is the traditional rule for contributory negligence?

Answer 16

The plaintiff’s contributory negligence (i.e., failure to exercise reasonable care for her own safety) is a complete bar to recovery,

Question 17

What are two major forms of comparative negligence? Define each.

Answer 17

1) Pure comparative negligence: The plaintiff’s full damages are calculated by the trier of fact and then reduced by the proportion that the plaintiff’s fault bears to the total harm.

2) Partial (Modified) comparative negligence:
(i) If the plaintiff is less at fault than the defendant, the plaintiff’s recovery is reduced by his percentage of fault, just as in a pure comparative-fault jurisdiction;
(ii) If the plaintiff is more at fault than the defendant, the plaintiff’s recovery is barred, just as in a contributory-negligence jurisdiction;
(iii) In the vast majority of modified comparative-fault jurisdictions, if the plaintiff and the defendant are found to be equally at fault, the plaintiff recovers 50% of his total damages. In a few modified comparative-fault jurisdictions, the plaintiff recovers nothing when the plaintiff and the defendant are equally at fault.

Question 18

When has a plaintiff impliedly assumed a risk? What is the effect of that assumption?

Answer 18

Generally, a plaintiff must voluntarily encounter a known, specific risk in order to have impliedly assumed that risk. Most courts hold that the voluntary encountering must also be unreasonable.

In most comparative fault jurisdictions, this form of assumption of the risk has been merged into the comparative-fault analysis and merely reduces recovery. In the few contributory negligence jurisdictions and in a minority of comparative-fault jurisdictions, this form of assumption of the risk remains a total bar to recovery.

Question 19

What are the elements for intentional interference with a contract?

Answer 19

To establish a prima facie case for intentional interference with a contract, the plaintiff must prove that:
i) A valid contract existed between the plaintiff and a third party;
ii) The defendant knew of the contractual relationship;
iii) The defendant intentionally interfered with the contract, causing a breach; and
iv) The breach caused damages to the plaintiff.

Question 20

What is the distinction between libel and slander? What effect does the classification of defamation as one or the other have on damages?

Answer 20

Libel is defamation by words written, printed, or otherwise recorded in permanent form. Slander is defamation by spoken word, gesture, or any form other than libel.

Generally, and subject to constitutional restrictions, presumed damages may be awarded for libel, but slander requires proof of special damages unless it constitutes slander per se.

Question 21

To which three torts does the doctrine of transferred intent generally apply?

Answer 21

1. Battery
2. Assault
3. False imprisonment

Question 22

What is the majority rule for proximate cause?

Answer 22

A defendant is liable for reasonably foreseeable consequences resulting from his conduct. In addition, the type of harm must be foreseeable, although the extent of harm does not need to be foreseeable. A defendant’s liability is limited to those harms that result from the risks that made the defendant’s conduct tortious, within the scope of liability of the defendant’s conduct.

Question 23

What types of damages are permitted for strict products liability claims?

Answer 23

Only personal injury or property damage. A claim for purely economic loss must be brought as a breach-of-warranty action.

Question 24

What are four invasion of privacy torts?

Answer 24

1) Misappropriation of the right to publicity;
2) Intrusion upon seclusion;
3) Placing the plaintiff in a false light; and
4) Public disclosure of private facts

Question 25

what duty to anticipated trespassers

Answer 25

(1) warn them about hidden, artificial dangers that are known to the land possessor but unlikely to be discovered by trespassers and (2) use reasonable care in activities conducted on the land.

Question 26

what if a plaintiff is actually not bothered by a nuisance

Answer 26

can still recover if an ordinary person in the community would be

Question 27

what does a guest statute due for driver liability

Answer 27

takes it from ordinary care to just refrain from gross or wanton

Question 28

for what must manufacturer put warning label on product

Answer 28

regarding any nonobvious, foreseeable risk of harm posed by its product if doing so will reduce that ris

Question 29

when is a supplier of a component liable for strict liability

Answer 29

1) the component is defective or (2) the supplier substantially participated in the process of integrating the component into the product’s design and the component’s integration caused that product to be defective.

otherwise not really in chain of sale

Question 30

minority and majority approach to negligence per se presumptions

Answer 30

minority - reputable presumption
majority - conclusive presumption

Question 31

elements of intentional interference with a k

Answer 31

(1) a valid contract existed between the plaintiff and a third party, (2) the defendant knew of that contractual relationship, (3) the defendant intentionally and improperly interfered with the contract’s performance, and (4) that interference caused the plaintiff pecuniary loss.

Question 32

modern approach to landowner liability

Answer 32

owe duty of reasonable care to all except flagrant trespassers

Question 33

what is informed consent doctrine

Answer 33

a physician who fails to disclose the risks of a medical treatment or procedure to a patient is liable for negligence if (1) the failure to disclose caused the patient to consent and (2) the undisclosed risk materialized and resulted in physical harm.

Question 34

duty of care for invitees

Answer 34

inspect for unknown dangers, make safe or warn

Question 35

duty of care for licensees

Answer 35

warn of known latent defects and use reasonable are

Question 36

duty of care for known or anticipated trespassers

Answer 36

warn of known artificial dangers and use reasonable care

Question 37

duty of care for unknown or unanticipated trespassers

Answer 37

none

but like you still can’t intentionally, willfully or wantonly hurt them

Question 38

when is a product defective due to warning

Answer 38

(1) it poses a foreseeable risk of harm that is not obvious to an ordinary user and (2) reasonable instructions or warnings could have reduced that risk.

Question 39

risk utility test for whether a design is defective

Answer 39

a product is defectively designed if (1) the design creates a foreseeable risk of harm and (2) that risk could have been mitigated by a reasonable alternative design