Torts

Question 1

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

Answer 1

A majority of courts hold that both children and those who are mentally incompetent can be held liable for intentional torts 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

A defendant who causes harm to an individual may be liable 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.

If the defendant’s design or purpose was to cause severe distress to the third-party victim, the victim need not have contemporaneously perceived the conduct or be a close family member of the harmed individual.

Question 3

When is the use of deadly force justified in self-defense?

Answer 3

The defendant may use deadly force only if the defendant reasonably believes that:
i) The plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force upon the defendant;
ii) The defendant is thereby put in peril of either death, serious bodily harm, or rape by the use or threat of physical force or restraint; and
iii) The defendant can safely prevent the peril only by the immediate use of deadly force.

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 firefighter’s rule?

Answer 5

Firefighter’s rule: 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 6

Are words sufficient to establish a prima facie case for assault?

Answer 6

For assault, words alone are insufficient. However, words coupled with conduct or other circumstances may be sufficient if the plaintiff reasonably anticipates that a harmful or offensive contact is imminent.

Question 7

What is the definition of a public nuisance?

Answer 7

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 8

When is use of force in defending others justified?

Answer 8

One may defend another with force upon a reasonable belief that the circumstances are such that the third person has a privilege of self-defense against the plaintiff and the defendant’s intervention is immediately necessary for the protection of the third person. The third person need not be related to the defendant but may instead be a stranger.

Question 8

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

Answer 8

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.

Note: In some comparative-fault jurisdictions, the plaintiff’s recovery in strict products liability is not reduced by the percentage that the plaintiff’s fault contributed to causing her injury.

Question 9

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

Answer 9

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

Question 10

What is the “merchant’s privilege?”

Answer 10

A merchant is privileged to use force against another for the purpose of (i) investigating, (ii) recapturing, or (iii) facilitating an arrest.

To be entitled to this privilege, the merchant must reasonably believe 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 11

How is express consent, as a defense to intentional torts, established?

Answer 11

The plaintiff expressly consents to the defendant’s otherwise tortious intentional conduct if the plaintiff is willing for that conduct to occur. Such willingness may be express or inferred from the facts.

Note: Actual consent extends to conduct by the defendant that is not substantially different in nature from the conduct that the plaintiff is willing to permit. But when a plaintiff places a limiting condition on her actual consent (e.g., on time or place), the consent is legally effective only within the limits of that condition.

Question 12

When will a defendant’s actions be considered intentional?

Answer 12

The defendant acts intentionally if:
i) He acts with the purpose of causing the consequences of his act; or
ii) He acts knowing that the consequence is substantially certain to result.

Question 13

What is the definition of trespass to chattel?

Answer 13

The defendant 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.

Note: Trespass to chattels requires that the plaintiff show actual harm to or deprivation of the use of the chattel for a substantial time.

Question 14

What is the definition of conversion?

Answer 14

The defendant intentionally commits an act depriving the plaintiff of possession of her chattel or interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff of the use of the chattel.

Note: The plaintiff may recover damages in the amount of the full value of the converted property at the time of the conversion. Alternatively, the plaintiff may bring an action for replevin to recover the chattel.

Question 15

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

Answer 15

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 16

What is the definition of trespass to land?

Answer 16

The defendant’s intentional act causes a physical invasion of the land of another.

Note: The defendant need only have the intent to enter the land or to cause a physical invasion. The defendant need not know that the land belongs to another. Mistake of fact is not a defense.

Question 17

Generally, when may a defendant act in self-defense and how much force may the defendant use?

Answer 17

A defendant has a privilege to use force against the plaintiff for the purpose of defending himself against the plaintiff’s unprivileged use of force if the defendant reasonably believes that the force is both necessary and proportionate to the force that the plaintiff is intentionally inflicting or about to inflict. The use of force must be for a defensive purpose.

The force used by the defendant should not be significantly greater than the force used by the plaintiff.
Note: A person’s mistaken belief that he is in danger, so long as it is a reasonable mistake, does not invalidate this defense.

Question 18

When is conduct considered extreme and outrageous for the purposes of IIED?

Answer 18

Conduct is extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society. The character of the conduct must be outrageous and the conduct must be sufficiently unusual to be extreme.

Note: While liability generally does not extend to mere insults, threats, or indignities, a defendant’s abusive language and conduct may be sufficiently “extreme and outrageous” if the defendant is in a position of authority or influence over the plaintiff, or the plaintiff is a member of a group with a known heightened sensitivity.

Question 19

What is the doctrine of “transferred intent?”

Answer 19

Transferred intent exists when a person intends to commit an intentional tort against one person but instead commits the intended tort against a different person.

Question 20

What is the last clear chance doctrine?

Answer 20

In contributory-negligence jurisdictions, the plaintiff may mitigate the legal consequences of her own contributory negligence if she proves that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so.

The last clear chance doctrine has been abolished in most comparative-fault jurisdictions. Instead, the plaintiff’s negligence is considered in determining the recovery to which the defendant is entitled.

Question 21

What is a “Good Samaritan” statute?

Answer 21

A “Good Samaritan” statute protects doctors and other medical personnel when they voluntarily render emergency care. These statutes exempt medical professionals from liability for ordinary negligence; however, they do not exempt them from liability for gross negligence.

Question 21

What effect does evidence of custom have on the standard of care in a negligence action?

Answer 21

Evidence of a custom in a community or an industry is admissible as evidence to establish the proper standard of care, but such evidence is not conclusive.

Question 22

What is the definition of a private nuisance? How does a defendant’s compliance with governmental regulations affect a private nuisance action?

Answer 22

A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual’s use and enjoyment of his land.

Statutory or regulatory compliance is not a complete defense but may be admitted as evidence as to whether the interference with the plaintiff’s use and enjoyment of his land is unreasonable.

Question 23

What defenses are available to a defamation action?

Answer 23

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 24

In negligence actions, what standard of care applies to a professional?

Answer 24

A professional person (e.g., doctor, lawyer, or electrician) is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community.

A specialist may be held to a higher standard than a general practitioner because of his superior knowledge.

Note: Establishing negligence by a professional person generally requires expert testimony to establish both the applicable standard of care and the defendant’s deviation from that standard.

Question 25

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

Answer 25

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 26

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 26

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.

Note: Under the minority rule of the Third Restatement, each such cause or act is regarded as a factual cause of the harm. Together they are designated as “multiple sufficient causes.”

Question 27

When does an intervening event (an act or event occurring after the defendant’s tortious act and before the plaintiff’s injury) cut off a defendant’s liability?

Answer 27

An intervening event that breaks the chain of proximate causation between the defendant’s tortious act and the plaintiff’s harm is a superseding cause. An unforeseeable intervening event is generally treated as a superseding cause, while a foreseeable intervening event generally is not.

Question 28

What is the most important thing a plaintiff must prove to be awarded damages in a negligence action?

Answer 28

The plaintiff must prove actual physical harm (bodily harm, property damage) to be entitled to damages for negligence. Nominal damages are not available.

Question 29

What are the elements of battery?

Answer 29

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 30

What is the doctrine of joint and several liability?

Answer 30

Under the doctrine of joint and several liability, each of two or more tortfeasors who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm. The plaintiff has the choice of collecting the entire judgment from one defendant, the entire judgment from another defendant, or portions of the judgment from various defendants, as long as the plaintiff’s entire recovery does not exceed the amount of the judgment.

Note: Always apply joint and several liability on the MBE unless the facts instruct you to apply a different test.

Question 31

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

Answer 31

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.

Note: If the seller is a commercial supplier of the product, the seller is subject to strict liability for a defective product, even if the revenue from sales of the product is not a significant portion of its business. The seller is generally strictly liable even if the seller was not responsible for the defect in any way and even when the product is not purchased directly from the seller.

Question 32

What is the traditional rule for contributory negligence?

Answer 32

The plaintiff’s contributory negligence (i.e., failure to exercise reasonable care for her own safety) is a complete bar to recovery, regardless of the percentage that the plaintiff’s own negligence contributed to the harm.

Question 33

What is the imminence requirement for assault?

Answer 33

The threatened bodily harm or offensive contact must be imminent, i.e., without significant delay. Threats of future harm are insufficient, as are threats made by a defendant too far away to inflict any harm; but threat of future contact can satisfy the imminence requirement in some circumstances.

Question 34

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

Answer 34

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 35

In negligence actions, what standard of care is imposed upon a child?

Answer 35

The standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience.

Note: A child engaged in a high-risk activity that is characteristically undertaken by adults, such as driving a car, is held to the same standard as an adult.

Question 36

What is the effect of an exculpatory clause in a contract under which the defendant disclaims liability for negligence? In what situations will it not be enforced?

Answer 36

An exculpatory clause in a contract can constitute an express assumption of the risk by the plaintiff that operates as an affirmative defense to a negligence action.

Note: Many courts now hold that disclaimer of liability by contract negates the fact that the defendant owes a duty of care to the plaintiff in the first place, causing the plaintiff’s prima facie case to fail, rather than operating as an affirmative defense.

Courts will not enforce exculpatory provisions:
i) Disclaiming liability for reckless or wanton misconduct or gross negligence;
ii) When there is a gross disparity of bargaining power between the parties;
iii) When the party seeking to apply the exculpatory provision offers services of great importance to the public that are a practical necessity for some members of the public such as medical services;
iv) If the exculpatory clause is subject to typical contractual defenses such as fraud or duress; or
v) When it is against public policy to enforce agreements that insulate people from the consequences of their own negligence.

Question 37

In negligence actions, what is the general standard of care?

Answer 37

The general standard of care imposed is that of a that of a reasonably prudent person under the circumstances. The standard is an objective one. Under this standard, the defendant is presumed to have average mental abilities and the same knowledge as an average member of the community, but a defendant’s particular physical characteristics (e.g., blindness) are taken into account.

Note: If a defendant possesses special skills or knowledge, she must exercise her superior competence with reasonable attention and care.

Question 38

What are the elements for intentional interference with a contract?

Answer 38

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 38

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

Answer 38

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 39

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

Answer 39

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 40

When is the owner of a domestic animal strictly liable for harm done by the animal?

Answer 40

A domestic animal’s owner is strictly liable for injuries caused by that animal if he knows or has reason to know of the animal’s dangerous propensities, and the harm results from those dangerous propensities.

Question 41

When is a product defective?

Answer 41

A product is defective when, at the time of the sale or distribution, it contains a:
i) Manufacturing defect: A deviation from what the manufacturer intended the product to be that causes harm to the plaintiff (the test is whether the product conforms to the defendant’s product specifications);

ii) Design defect: A defect in the design of the product as determined under the consumer expectation test (unreasonably dangerous beyond the expectation of an ordinary user) and/or the risk-utility test (a reasonable alternative design that was economically feasible was available to the defendant and the failure to use that design rendered the product not reasonably safe); or

iii) Failure-to-warn defect: There is a foreseeable risk of harm, not obvious to an ordinary user of the product, which risk could have been reduced or avoided by providing reasonable instructions or warnings, rendering the product not reasonably safe.

Question 42

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

Answer 42

1. Battery
2. Assault
3. False imprisonment

Question 43

What is the learned-intermediary rule regarding prescription drugs and medical devices in the context of strict products liability?

Answer 43

The manufacturer of a prescription drug or medical device typically satisfies its duty to warn the consumer by informing the prescribing physician, rather than the patient, of problems with the drug or device.

Question 44

What is the majority rule for proximate cause?

Answer 44

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 45

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

Answer 45

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

Question 46

What are four invasion of privacy torts?

Answer 46

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 47

What is the “eggshell-skull” rule?

Answer 47

The defendant is liable for the full extent of the plaintiff’s injuries that may be increased because of the plaintiff’s preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable.

Question 48

Elements for Assault

Answer 48

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 49

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

Answer 49

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.

Note: In some comparative-fault jurisdictions, the plaintiff’s recovery in strict products liability is not reduced by the percentage that the plaintiff’s fault contributed to causing her injury.

Question 50

What qualifies as contact with the “plaintiff’s person” for the purposes of battery?

Answer 50

Contact with anything connected to the plaintiff’s person qualifies as contact with the plaintiff’s person for the purposes of battery (e.g., a person’s clothing, a pet held on a leash, a bicycle ridden by the plaintiff).

Question 51

When may a private actor make an arrest?

Answer 51

In most jurisdictions, a private actor is privileged to use force (e.g., commit a battery or false imprisonment tort) to make an arrest in the case of a felony if the felony has in fact been committed and the arresting party has reasonable grounds to suspect that the person being arrested committed it.

Question 52

What are the elements of false imprisonment?

Answer 52

1) The defendant intends to confine or restrain the plaintiff within a limited area;

2) The defendant’s conduct causes the plaintiff’s confinement, or the defendant fails to release the plaintiff from a confinement despite owing a duty to do so, and

3) The plaintiff is conscious of the confinement (in a minority of jurisdictions, a plaintiff who was not conscious of the confinement may still recover if harmed by the confinement).

Question 53

In what ways may a plaintiff be confined resulting in false imprisonment?

Answer 53

The defendant may confine the plaintiff by the use of physical barriers, physical force or restraint or the threat of physical force or restraint, duress other than by threat of physical force or restraint, or by the assertion of legal authority.

Question 54

In what circumstances does a landlord have negligence liability to a tenant or third party for injuries suffered on the leased premises?

Answer 54

“The landlord is liable for injuries to the tenant and others occurring:

i) In common areas such as parking lots, stairwells, lobbies, and hallways;
ii) as a result of hidden dangers about which the landlord fails to warn the tenant;
iii) on premises leased for public use;
iv) as a result of a hazard caused by the landlord’s negligent repair; or
v) involving a hazard that the landlord has agreed to repair.”

Question 55

What level of force may be used when recapturing one’s personal property?

Answer 55

A person is generally not privileged to commit battery, assault, or false imprisonment to regain possession of personal property.

Note: Under the “fresh pursuit” exception, when a plaintiff wrongfully takes personal property from a defendant’s possession, the defendant may use reasonable, nondeadly force to regain possession of the property if the defendant acts promptly.

Question 56

When may someone use force to defend property?

Answer 56

A person may use reasonable force to defend her property if:
i) The intrusion is not privileged;
ii) The defendant reasonably believes that:
a) The plaintiff is intruding or imminently will intrude on the defendant’s property; and
b) The intrusion can be prevented or terminated only by the means used;
iii) The defendant first asks the plaintiff to desist, and the plaintiff disregards the request or the defendant reasonably believes that a request will be useless or dangerous or that substantial harm will be done before the request can be made;
iv) The means used are reasonably proportionate to the value of the interest the defendant is protecting; and
v) The means used are not intended or likely to cause death or serious bodily injury.

Question 57

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

Answer 57

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.

Note: If the seller is a commercial supplier of the product, the seller is subject to strict liability for a defective product, even if the revenue from sales of the product is not a significant portion of its business. The seller is generally strictly liable even if the seller was not responsible for the defect in any way and even when the product is not purchased directly from the seller.

Question 58

What are the four elements of negligence?

Answer 58

A prima facie case of negligence consists of four elements:
i) Duty, the obligation to protect another against unreasonable risk of injury;
ii) Breach, the failure to meet that obligation;
iii) Causation (factual and proximate), a close causal connection between the action and the injury; and
iv) Damages, the harm suffered.

Note: The plaintiff must establish all four elements of negligence by a preponderance of the evidence.

Question 59

What is the effect of a plaintiff’s establishment of res ipsa loquitur?

Answer 59

If the plaintiff establishes a prima facie case of res ipsa, then the trial court should deny the defendant’s motion for a directed verdict, and the issue of negligence must be decided by the trier of fact. In most jurisdictions, res ipsa does not require that the trier of fact find negligence on the defendant’s part. It simply establishes an inference of negligence sufficient to avoid dismissal of the plaintiff’s action.

Question 60

When determining whether contact is offensive for the purposes of battery, what are the objective and subjective tests?

Answer 60

Objective test: contact is offensive when a person of ordinary sensibilities (i.e., a reasonable person) would find the contact offensive.

Subjective test: contact is offensive when the defendant knows that the contact is highly offensive to the plaintiff’s sense of personal dignity, and the defendant contacts the plaintiff with the primary purpose that the contact will be highly offensive (unless liability violates public policy).

Question 61

What are the Andrews and Cardozo views regarding the foreseeability of a plaintiff?

Answer 61

Cardozo (majority) view - a duty of care is owed to the plaintiff only if she is a member of the class of persons who might be foreseeably harmed (sometimes called “foreseeable plaintiffs”) as a result of the defendant’s negligent conduct.

Andrews (minority view) - if the defendant can foresee harm to anyone as a result of his negligence, then a duty of care is owed to everyone (foreseeable or not) harmed as a result of his breach.

Question 62

Must the plaintiff be aware of what is happening for an act to constitute assault or battery?

Answer 62

For assault, the plaintiff must be aware or have knowledge of the defendant’s act or threat. However, there is no such requirement for battery.

Question 63

What are six circumstances in which a defendant has an affirmative duty to act?

Answer 63

1) Assumption of duty - A person who voluntarily aids or rescues another has a duty to act with reasonable ordinary care in the performance of that aid or rescue.
2) Placing another in peril - A person who places another in peril is under a duty to exercise reasonable care to prevent further harm by rendering care or aid.
3) Contract - There is a duty to perform contractual obligations with due care.
4) Authority - One with actual ability and authority to control another, such as parent over child and employer over employee, has an affirmative duty to exercise reasonable control.
5) Special relationship - A defendant with a unique relationship to a plaintiff, such as business proprietor–patron, common carrier–passenger, innkeeper-guest, employer-employee, or parent-child, may have a duty to protect, aid, or assist the plaintiff and to prevent reasonably foreseeable injury to her from third parties.
6) Statutory obligation - A statute that imposes an obligation to act for the protection of another but does not expressly or impliedly create or reject a private cause of action may give rise to an affirmative duty to act.

Question 64

What is the majority rule for proximate cause?

Answer 64

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 65

What is a “Good Samaritan” statute?

Answer 65

A “Good Samaritan” statute protects doctors and other medical personnel when they voluntarily render emergency care. These statutes exempt medical professionals from liability for ordinary negligence; however, they do not exempt them from liability for gross negligence.

Question 66

What are the elements of defamation?

Answer 66

A plaintiff may bring an action for defamation if:
i) The defendant’s defamatory language;
ii) Is of or concerning the plaintiff;
iii) Is published to a third party who understands its defamatory nature; and
iv) It damages the plaintiff’s reputation.

For matters of public concern, the plaintiff is constitutionally required to prove fault on the part of the defendant. If the plaintiff is either a public official or a public figure, then the plaintiff must prove actual malice.

If either (i) the defamatory statement relates to a matter of public concern or (ii) the plaintiff is a public official or a public figure, then the plaintiff must also prove that the defamatory statement is false.

Question 67

Name the three types of entrants to whom a possessor of land owes a duty and the duty owed to each.

Answer 67

1. Trespasser - A land possessor is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers. (Note: Land possessors generally owe no duty to undiscovered trespassers, nor do they have a duty to inspect their property for evidence of trespassers.)
2. Licensee - A land possessor has a duty to either correct or warn a licensee of concealed dangers that are either known to the land possessor or that should be obvious to her. (Note: The land possessor does not have a duty to inspect for dangers, but must exercise reasonable care in conducting activities on the land.)
3. Invitee - A land possessor owes an invitee the duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them. (Note: The duty of reasonable care owed to an invitee does not extend beyond the scope of the invitation, and the invitee is treated as a trespasser in areas beyond that scope.)

Question 68

What are the rules regarding the use of force by parents in disciplining a child?

Answer 68

A parent is privileged to use reasonable force, threat of force, or confinement against the parent’s minor child for the purpose of disciplining, educating, controlling, or otherwise promoting the welfare of the child.

Question 69

What does it mean to be “confined within a limited area” for the purposes of false imprisonment?

Answer 69

The plaintiff must be confined within a limited area in which the plaintiff’s freedom of movement in all directions is constrained. The limited area may be large and need not be stationary. A plaintiff may also be confined when compelled to move in a highly restricted way.

Note: An area is not bounded if there is a reasonable means of safe escape of which the plaintiff is aware.

Question 70

What are the elements of res ipsa loquitur under the traditional approach?

Answer 70

Under the traditional standard for res ipsa loquitur, the plaintiff must prove that:
i) The accident was of a kind that ordinarily does not occur in the absence of negligence;
ii) It was caused by an agent or instrumentality within the exclusive control of the defendant; and
iii) It was not due to any action on the part of the plaintiff.

Question 71

When may someone use deadly force to defend property?

Answer 71

Deadly force may not be used merely in defense of property. A person may never
use a deadly mechanical device (e.g., a spring-loaded gun) to defend property.

Question 72

What test is generally applied to determine whether a defendant’s conduct was the actual cause of the plaintiff’s harm?

Answer 72

“But for” test: If the plaintiff’s injury would not have occurred but for the defendant’s tortious conduct, then the defendant’s conduct is a factual cause of the harm.

Question 73

What is the traditional rule for contributory negligence?

Answer 73

The plaintiff’s contributory negligence (i.e., failure to exercise reasonable care for her own safety) is a complete bar to recovery, regardless of the percentage that the plaintiff’s own negligence contributed to the harm.

Question 74

What is the firefighter’s rule?

Answer 74

Firefighter’s rule: 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 75

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

Answer 75

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

Question 76

How does product misuse affect the recovery of damages in a strict products liability action?

Answer 76

The misuse, alteration, or modification of a product by the user in a manner that is neither intended by nor reasonably foreseeable to the manufacturer typically negates the manufacturer’s liability.

Question 77

What are two ways in which assault differs from battery?

Answer 77

1) Bodily contact is not required for assault.

2) The plaintiff must be aware of or have knowledge of the defendant’s act or threat for assault.