Torts

Question 1

elements to prove an intentional tort

Answer 1

P must prove:
1)act, tortious conduct
2) intent, requisite mental state, and
3) causation

Question 2

intent for intentional torts

Answer 2

1) actor acts with the purpose of causing the consequence, or
2) actor knows that the consequence is going to come about to a substantial likelihood

children/mentally incompetent person can be held liable

Question 3

Battery

Answer 3

D causes: must result in contact
1) harmful or offensive contact
i)harmful: causes injury, pain, or illness
ii)Offensive: person of ordinary sensibilities would find it offensive
person doesnt need to be aware of it
iii) contact: need not be direct

2) with the person of another, and
includes anything connected to Ps person

3)acts with the intent to cause that contact or the apprehension of that contact
what has to be intended is the contact, not the offense

Question 4

transferred intent for intentional torts

Answer 4

when the intent to commit one tort satisfies the required intent for a different tort
1) different tort against same person
2) same tort against different person
3) different tort against different person

Question 5

Damages for battery

Answer 5

no proof of actual harm is required: can recover nominal damages

eggshell P rule: liable for all harm that flow, even if worse than expected

many states allow punitive if D acted:
outrageously or,
with malice

Question 6

consent defense to battery

Answer 6

no batter if there is express or implied consent

Question 7

Assault

Answer 7

1)causes reasonable apprehension
P must be aware of Ds action

2) of imminent harmful or offensive conduct
must be without significant delay- future harm is not sufficient

3)D intends to cause apprehension of such contact or to cause such contact itself

***mere words without more do not constitute an assault

Question 8

damages for assault

Answer 8

no proof of actual damages required- nominal
punitive may be available

Question 9

Intentional Infliction of Emotional Distress

Answer 9

D intentionally or recklessly engages in extreme and outrageous conduct that cause P severe emotional distress

extreme and outrageous conduct: exceeds the possible limits of human decency so as to be entirely intolerable in a civilized society
more likely if
1)position of authority/influence
2) p is a member of a group that has heightened sensitivity

causation: Ds actions must be a cause in fact of Ps harm

Question 10

IIED and Public figures

Answer 10

public figures must show that the words contain a false statement of facts that was made with actual malice: knowledge that the statement was false or with reckless disregard of its potential falsity

The Supreme Court has suggested that even private plaintiffs cannot recover if the conduct is speech in the context of a matter of public concern

Question 11

IIED and Conduct toward 3rd parties

Answer 11

If the defendant directs extreme and outrageous conduct toward one party and a different party experiences severe emotional distress because of that conduct, the doctrine of transferred intent may apply, but only in certain circumstances:
1)Related bystanders: An immediate family member of the victim who is present at the time of the conduct and contemporaneously perceives the conduct may recover for IIED regardless of whether that family member suffers bodily injury as a result of the distress

2) Ds Purpose: If the defendant’s purpose in harming an individual is to cause severe emotional distress to a third party, the third party can recover for IIED without showing that he was a close family member of the harmed individual or that he contemporaneously perceived the conduct.

Question 12

Damages for IIED

Answer 12

P must prove severe emotional distress beyond what a reasonable person should endure

hypersensitivity: only applies if D knew about it

Physical injury not required

Question 13

False imprisonment

Answer 13

1)D intends to confine or restrain another within fixed boundaries
2) The actions directly or indirectly result from the confinement, and
3) P is conscious of the confinement or harmed by it

time of confinement: immaterial

Intent
D must act:
1)with the purpose of confining the P, or
2) knowing that Ps confinement is substantially certain to result
not liable for confinement due to Ds negligence

Question 14

methods of confinement for false imprisonment and the exception

Answer 14

use of physical barriers, physical force, threats, invalid invocation of legal authority, duress, or refusing to provide a safe means of escape
*may be false imprisonment when D refused to perform a duty to help someone escape

Merchant’s privilege: a merchant can, for a reasonable time and in a reasonable manner detain a suspected shoplifter

Question 15

False imprisonment damages

Answer 15

P can recover nominal damages
actual damages are also compensable

Question 16

defenses to intentional torts

Answer 16

actual consent
presumed consent
self-defense
defense of others
defense of property
parental discipline
privilege of arrest

Question 17

actual consent defense to intentional

Answer 17

P by words or actions manifests the willingness to submit to Ds conduct
conduct may not exceed the scope of consent

consent by mistake: valid unless D cause mistake or knew of it and took advantage

consent by fraud: invalid if it goes to an essential matter

capacity matters

Question 18

presumed consent as defense to intentional

Answer 18

P is silent but in context their silence and continued participation can reasonably be construed as consent

1)emergencies: fair to assume that someone in need of rescuing would allow rescuer to touch
2)injuries arising from athletic contests- within the scope
3) mutual consent to combat

capacity matters

Question 19

self defense for intentional

Answer 19

force that is proportionate to defend against an offensive contact
duty to retreat not a thing anymore

initial aggressor: not permitted to claim unless the other party has responded to nondeadly force with deadly force

injuries to bystanders: not liable for these injuries as long as the injury was accidental and the actor was not negligent toward bystander

Question 20

defense of others for intentional

Answer 20

may use reasonable force in defense of others if that person would be entitled to use self-defense

Question 21

Defense of property

Answer 21

reasonable force may be used if the person reasonably believe it is necessary
deadly force cannot be used for property

recapture of chattels:
1) reasonable force may be used to reclaim personal property that has been wrongfully taken, but only if you request its return, unless that would be futile
2)if original taking was lawful: only peaceful means may be used

cannot use force to regain possession of land, only legal process

Question 22

parental discipline

Answer 22

parents may use reasonable force as necessary to discipline children

Question 23

Privilege of arrest

Answer 23

Private citizens
Permitted to use reasonable force to make an arrest for felonies if:
1)the felony has actually been committed, and
2)the arresting party has reasonable grounds to suspect that the person being arrested has committed the felony
**not a defense if there is a mistake as to whether this was the person or if a felony actually occurred

Police
must reasonably believe that a felony has been committed and that the person arrested committed it
allowed to make a mistake as to whether a felony has been committed

misdemeanor
1)arrest by officer may only be made if the misdemeanor was committed in the officer’s presence
2) arrest by private person may only be made if there is a breach of peace

Question 24

trespass to chattels

Answer 24

an intentional interference with Ps right to possess personal property by:
1) dispossessing the P of the chattel
2)using or intermeddling with Ps chattel, or
3) damaging the chattel

intent: only the intent to do the interfering act is necessary, do not need to intend to interfere
*mistake of law is not a defense

Question 25

trespass to chattels damages

Answer 25

1)dispossession or damage: actual damages, damages resulting from loss of use, nominal damages, cost of repair
2) use or intermeddling: may only recover actual damages

Question 26

conversion

Answer 26

intentionally committing an act depriving the P of possession of his chattel or interfering with the Ps chattel in a manner so serious as to deprive the P entirely of the use of the chattel

Intent: must only intend to commit act that interferes
**mistake of law/fact not a defense

Question 27

conversion damages

Answer 27

can recover the chattel’s full value at the time of the conversion

Question 28

trespass to chattels v. conversion

Answer 28

courts consider the following factors:
1)duration/extent of interference
2)D’s intent to assert a right inconsistent with the rightful possessor
3) D’s good faith
4) expense or inconvenience to P, and
5) extent of the harm

**more extreme more likely to be conversion

Question 29

trespass to land

Answer 29

D intentionally causes a physical invasion of someone’s land

intent: need only have the intent to enter the land
mistake of fact is not a defense

physical invasion includes causing objects to invade the land

rightful P: anyone in possession can bring an action

Question 30

trespass v. nuisance

Answer 30

trespass: always involves an actual physical intrusion upon the land
nuisance: may or may not involve a physical intrusion

Question 31

damages for trespass

Answer 31

no proof of actual damages is required

Question 32

necessity as a defense to trespass

Answer 32

generally available to a person who enters onto someone else’s land or interferes with that individual’s personal property to prevent injury/ other severe harm

private necessity:
D not liable for nominal but liable for actual
landowner may not use force to exclude

public necessity: private property is intruded upon/destroyed when necessary to protect a large number of people from a public calamity
not liable for damages

Question 33

two types of nuisance

Answer 33

private nuisance
public nuisance

Question 34

private nuisance

Answer 34

an activity that substantially and unreasonably interferes with another’s use and enjoyment of land

must be annoying to an ordinary, reasonable person: objective
courts will balance the interference with the utility of the nuisance

not a nuisance: blocking of sunlight or the obstruction of view
exception: if it is out of spite

Question 35

defenses to private nuisance

Answer 35

1)compliance with state or local administrative regulation
not a complete defense- just evidence
2)coming to the nuisance
courts are hesitant to find a nuisance if you moved somewhere knowing about that conduct- but just a factor, not a complete defense

Question 36

public nuisance

Answer 36

an unreasonable interference with a right common to the public as a whole

who can bring action:
1)public official can bring on behalf of the public to abate the nuisance
2) private individual can only bring if suffered special harm that is different from the general public

Question 37

elements of negligence

Answer 37

1)duty: obligation toward another party
2)breach: failure to meet that obligation
3)causation: cause in fact and proximate cause
4) damages: the loss suffered

Question 38

duty

Answer 38

a legal obligation to act in a certain way
two aspects:
is there a duty
what is the nature of that duty- standard of care

Question 39

general principals regarding duty

Answer 39

owed to all persons who may foreseeably be injured by Ds course of conduct
generally no duty to act affirmatively

Question 40

scope of duty

Answer 40

1)foreseeability of harm
alone does not create a duty

2) foreseeability of plaintiff
no liability to an unforeseeable P
Majority approach (Cardozo): whether the P is a member of the class of persons who might be foreseeably harmed by the conduct

Minority view (restatement) any time conduct could harm someone, there is a duty to everyone

Question 41

special categories of Ps for duty

Answer 41

rescuers: a person who comes to the aid of another is a foreseeable victim of the original negligent conduct

crime victims: considered foreseeable Ps in certain circumstances

Question 42

affirmative duty to act

Answer 42

generally there is no duty
exceptions:
1)assumption of duty: a person who voluntarily aids/rescues another has a duty of reasonable care in the performance of that aid
2)placing another in danger
3) by authority: person with ability and actual authority to control another has a duty to exercise reasonable care
ex.: parent/child warden/prisoner
4) by relationship; D has special relationship with P- must use reasonable care
ex.: common carrier/passenger, innkeeper/guest

Question 43

standard of care

Answer 43

objective standard: reasonably prudent person under the circumstances

mental characteristics are not taken into account but physical conditions are

intoxication: held to same standard unless intoxication was involuntary

children: reasonable child of similar age, intelligence, and experience
exception: adult activities

Question 44

standards of care for specific situations

Answer 44

1) common carriers and innkeepers:
traditional: utmost care
majority of courts hold common carrier to higher standard but not negligence

2)Automobile drivers: general duty

3) Bailors: bailor must warn a gratuitous bailee of a known condition

4) emergency situations: reasonable person under the same circumstances

Question 45

possessors of land standard of care- two types

Answer 45

two approaches

Traditional structure: tripartite

Modern (california way)

Question 46

Traditional approach for standard of care for possessors of land

Answer 46

Invitees: comes into the land for economic purpose
duty of reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect invitee

Licensees: enters the land with express/implied permission
duty to either make the property reasonably safe or warn licensees of hidden dangers

Trespassers: no duty
exception: refrain from willful, wonton, intentional, reckless misconduct
discovered trespassers: duty to warn from hidden dangers
flagrant trespassers (some states): lesser duty

Question 47

Attractive nuisance doctrine

Answer 47

may be liable for injuries to children trespassing on the land if:
1)an artificial condition exists in a place where the owner knows or has reason to know that children are likely to trespass
2)land possessor knows or has reason to know that the artificial condition poses an unreasonable risk of death/serious bodily harm
3) children, because of their age, do not discover/cannot appreciate the danger
4) utility of maintaining the condition is slight compared to the risk of injury, and
5) the land possessor fails to exercise reasonable care

Question 48

california way for standard of care for land possessors

Answer 48

Some states: reasonable standard under all the circumstances for all entrants- circumstances include the reason the person is on the property

Restatement: reasonable care under the circumstances, except flagrant trespassers- cant acted in an intentional, willful, or wanton manner to cause physical harm

Question 49

landlord tenant duty of care

Answer 49

landlord must:
1) maintain safe common areas
2) warn of hidden dangers, and
3) repair hazardous conditions

tenant remains liable for injuries arising from conditions within their control

Question 50

standard of care for off-premises victim

Answer 50

land possessor not liable for injuries resulting from natural conditions

Artificial conditions- must prevent unreasonable risk of harm to persons not on the premises

Question 51

breach of duty generally

Answer 51

a violation of the standard of care
1)traditional approach: what a reasonably prudent person would do under the circumstances
2) cost benefit analysis: Burden versus probability of harm X severity of loss

Question 52

breach of duty for customs

Answer 52

generally evidence of a custom is admissible but not dispositive

professionals: lawyers, doctors, accountants, electricians
admissible and dispositive
compliance-no breach
deviation from custom- did breach

physicians
modern trend: national standard
informed consent: doctor must explain risks and patient must give informed consent
not required if:
1)risks are commonly know
2)patient is unconscious
3) patient waives/refuses info
4) patient is incompetent, or
5) patient would be harmed by disclosure

Question 53

negligence per se elements

Answer 53

1) a criminal law/regulatory statute imposes a particular duty for the protection/benefit of others
2) D violated the statute
3) P must be in the class of people intended to be protected by statute
4) accident must be the kind that the statute was intended to protect against, and
5) the harm was caused by a violation of the statute

Question 54

defense to negligence per se

Answer 54

excuse
1)complying would be even more dangerous than violating
2)compliance was impossible or emergency justified violation
3)incapacity
4)exercised reasonable care in trying to comply
5) vagueness

Question 55

Res ipsa loquitur and its elements

Answer 55

happens when circumstantial evidence of negligence is sufficient

traditional elements:
1) accident was of a kind that does not ordinarily occur in the absence of negligence
2) it was caused by an agent or instrumentality within the exclusive control of the D, and
3) it was not due to any action on the part of P

Modern trend: applies elements generously-
accident is a type of accident that ordinarily happens as a result of negligence of a class of actors, and
D is a member of that class

Question 56

medical malpractice and res ipsa

Answer 56

In cases in which medical personnel acted negligently to harm a patient, a small number of jurisdictions shift the burden by holding ALL defendants jointly and severally liable unless they can exonerate themselves.

Question 57

products liability and res ipsa

Answer 57

Many courts ignore the exclusivity requirement when it is clear that the defect originated upstream of the package’s wrapping.

Question 58

comparative fault jurisdictions and res ipsa

Answer 58

Many comparative-fault jurisdictions (discussed later) loosely apply the third element (i.e., that the harm was not caused by any action by the plaintiff).

Question 59

procedural effect of res ipsa

Answer 59

Creates a permissible inference that allows the case to go to the jury
Jury may infer negligence, but need not

Question 60

two components of causation

Answer 60

cause in fact
proximate cause

Question 61

cause in fact

Answer 61

But for test: P must show that the injury would not have occurred but for D’s negligence

gets tricky if there are multiple or indeterminate causes of the injury

Question 62

common problematic circumstances for determining cause

Answer 62

multiple tortfeasors
multiple possible causes
loss of chance

Question 63

substantial factor test for cause

Answer 63

Used when there are conceptual problems with causation due to multiple causes
Test: Was defendant’s tortious conduct a “substantial factor” in causing the harm?
“Multiple sufficient causes” doctrine (Third Restatement)

Question 64

alternative causation

Answer 64

Plaintiff’s harm was caused by only one of a few defendants (usually two) and each was negligent, and it cannot be determined which one caused the harm.
Courts will shift the burden of proof to the defendants—will impose joint and several liability on both unless one can show he did not cause the harm

Question 65

concert of action with cause

Answer 65

if two+ tortfeasors were acting together collectively and that causes Ps harm, then all Ds will be jointly and severally liable

Question 66

Loss of chance of recovery

Answer 66

for medical misdiagnosis
If a physician negligently reduces the plaintiff’s chance of survival, then that plaintiff can recover for the lost chance of recovery.

Plaintiffs cannot recover full damages; but can recover the portion that represents their lost chance of survival

Question 67

scope of liability and foreseeability of cause

Answer 67

person is liable for the kinds of risks that made her conduct negligent
the issue is whether the injury that occurred was within the scope of Ds breach

majority rule: no liability for an unforeseeable type of harm

Question 68

intervening v. superseding cause

Answer 68

intervening: did not break the chain of liability
superseding: broke the chain of causation
whether the injury is within the scope of what made the conduct negligent in the first place

third party criminal acts may or may not break the chain

Question 69

foreseeability of the extent of damages

Answer 69

D is liable for the full extent of Ps injuries, even if the extent is unusual or unforeseeable
the type of damages must be foreseeable

Question 70

types of damages for negligence

Answer 70

compensatory
punitive

Question 71

compensatory damages for negligence

Answer 71

purpose is to make the P whole again: can include cost of physical injuries and emotional damages

Personal injury:
1)medical expenses, both past and future
2) lost income and reduced earning capacity
3)pain and suffering, both past and future

Property damage
may recover the difference in the market value of the property before and after the injury
may allow cost of repair or replacement value

Mitigation: P must take reasonable steps to mitigate- more of a limitation on recovery

Question 72

collateral source rule

Answer 72

benefits/payments to P from outside sources are not credited against the liability of any tortfeasor: evidence of such payments is not admissible

Modern trend: most states have passed statutes that eliminate or substantially modify it to avoid double recoveryp

Question 73

punitive damages for negligence

Answer 73

Purpose is to punish and deter future conduct
if D acted willfully, wantonly, recklessly or with malice

may be limited by statute: SC- usually should be within a single digit ratio of any compensatory damages

Question 74

Negligent infliction of emotional distress

Answer 74

times when P can recover absent physical injury
1) Zone of Danger
i)P was within the zone of danger of the threatened physical impact, and
ii) the threat of physical impact caused emotional distress

2)Bystander recover
i) is closely related to the person injured
ii)was present at the scene of the injury, and
iii) personally observed the injury

3)Special relationship
i) negligent mishandling of a corpse
ii) negligent medical info- like misdiagnosis

***most jurisdictions require some physical manifestation of distress: nausea, insomnia

Question 75

Negligence recovery of economic loss

Answer 75

A P who suffers only economic loss without any related personal injury or property damage cannot recover in negligence

put if can prove PI or property damage, then can recover economic damage

Question 76

loss of consortium

Answer 76

allows for loss arising from injury to a family member
typically spouse can claim loss of consortium or companionship

Question 77

Survival Action

Answer 77

Brought by a representative of the decedent’s estate on behalf of the decedent for claims that the decedent would have had at the time of the decedent’s death
Claims include damages resulting from personal injury or property damage

Question 78

Wrongful death action

Answer 78

Brought by the decedent’s spouse or representative to recover losses suffered by the spouse or representative as a result of the decedent’s death

can include loss of economic support and loss of consortium

Question 79

Wrongful Life and Birth Claims

Answer 79

Wrongful Life
Claim by child for defendant’s negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect
***A few states permit a “wrongful life” action, but they limit the child’s recovery to special damages attributable to the disability

Wrongful Birth
Claim by parent for defendant’s negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect
Many states do permit recovery for the medical expenses of labor as well as for pain and suffering.
In the case of a child with a disability, may be able to recover damages for the additional medical expenses of caring for that child, and, in some states, may recover for emotional distress as well

Question 80

vicarious liability

Answer 80

when one person is held liable for another person’s negligence

joint and several liability: original tortfeasor is still held liable as well

indemnification: party held vicariously liable may seek indemnification from the party who was directly responsible

Question 81

respondeat superior

Answer 81

employer is held vicariously liable for the negligence of an employee, if it occurred within the scope of employment
scope of employment
detour: minor deviation, employer is liable
frolic: major deviation, employer not liable

generally employers are not liable for the intentional torts of employees
exception: conduct within scope of employment

Question 82

vicarious liability for independent contractors

Answer 82

generally employers are not liable
when liable:
1)non delegable duties:
i)inherently dangerous activities
ii) duties to the public or specific plaintiffs, for certain types of work, such as construction work
iii) shopkeepers have a duty to keep premises safe for the public

2)apparent agency doctrine
IC will be treated as an employee if:
i)injured person accepted the ICs services based on a reasonable belief that the IC was an employee, based on manifestations from the putative employer, and
ii) The ICs negligence is a factual cause of harm to one who receives the services, and such harm is within the scope of liability

Question 83

vicarious liability and business partners

Answer 83

can be liable for the torts of other business partners committed within the scope of the business’s purpose

Question 84

vicariously liability and automobile owners

Answer 84

1) negligent entrustment: owner can be directly liable for negligently entrusting a vehicle or other dangerous object to someone who is not in the position to exercise reasonable care

2) Family-purpose doctrine: owner may be vicariously liable for the tortious acts of any family member driving the car with permission

3) owner liability statutes: may be vicariously liable for the tortious acts of anyone driving the car with permission

Question 85

vicariously liable and parents and children

Answer 85

General rule: parents generally are not vicariously liable for their minor children’s torts

Negligence of parents: parents can be liable for their own negligence with respect to their children’s conduct

Question 86

Dram shop vicarious liability

Answer 86

1) commercial establishments
Holds bartenders, bar owners, and servers liable for injuries caused when people drink too much alcohol and injure third parties
In many states, liability is limited to serving minors or people who are visibly intoxicated

2) social hosts
Liability for serving alcohol to a guest who is then injured or injures another
Statutes vary and often limit liability to serving alcohol to a minor

Question 87

Federal and State Gov immunities from tort liability

Answer 87

Traditionally, state and federal governments were completely immune from tort liability-Immunity has been waived by statutes.

Fed Gov
Federal Tort claims act: expressly waives immunity and allows the fed gov to be sued for certain kinds of torts
There are exceptions to this waiver of immunity (i.e., situations in which the federal government maintains immunity), including discretionary functions, traditional governmental activities, and certain enumerated torts.

State govs and municipalities
Most states have waived immunity to some extent.
Municipalities are generally governed by the state tort claims statute.
Governmental v. proprietary functions:
* Governmental functions (e.g., police, court system)—immunity applies
* Proprietary functions (often performed by a private company, e.g., utilities, parking
lots)—immunity waived

gov officials
discretionary functions: immunity applies
ministerial functions: no immunity
Westfall Act—precludes any personal liability on the part of a federal employee under state tort law.

Question 88

Intra family immunities from torts

Answer 88

largely eliminated; a family member can be sued for negligently injuring another family member
Core parenting activities—immunity still applies

Question 89

Charitable immunity from torts

Answer 89

eliminated in most states, though some states still limit recovery

Question 90

application of joint and several liability

Answer 90

two or more Ds are each liable for a single and indivisible harm to the P, each D is subject to liability to the P for entire harm
Applications:
1) two+ tortfeasors
2) tortfeasors are acting in concert
3)alternative liability
4) res ispa loquitur used against multiple Ds
5) vicarious liability
*Multiple defendants can be held jointly and severally liable, even if a jury apportions each defendant a different percentage of fault.
*Some jurisdictions limit a defendant’s joint liability if he is less than 10% at fault. The defendant will be liable only for his share of fault.