Torts

Question 1

Firefighter’s Rule

Answer 1

bars recovery from a firefighter or police officer who was injured by a peril that we he was employed to confront; if the peril was created by negligence/strict liability, officer generally still has no claim against defendant

Question 2

Transferred Intent may be invoked only if both the tort intended and the tort that results are one of the following:

Answer 2

assault, battery, false imprisonment, trespass to land, trespass to chattels

Question 3

Prima Facie Case for any Intentional Tort

Answer 3

(i) an act by the defendant (ii) intent by the defendant (iii) causation of the result to the plaintiff from the defendant’s act

Question 4

Battery

Answer 4

(i) harmful or offensive contact (ii) with the plaintiff’s person, including anything connected to the plaintiff

Question 5

Assault

Answer 5

(i) act by the defendant creating a reasonable apprehension in the plaintiff (ii) of an immediate battery

Question 6

False Imprisonment

Answer 6

(i) an act or omission on the part of the defendant that confines or restrains the plaintiff (ii) to a bounded area [plaintiff must know of the confinement]

Question 7

Intentional Infliction of Emotional Distress

Answer 7

(i) any act by the defendant amounting to extreme and outrageous conduct that (ii) causes the plaintiff to suffer severe emotional distress

Question 8

Conduct that is not normally outrageous may become so if

Answer 8

(i) it is continuous in nature; (ii) it is committed by a certain type of defendant (common carriers or innkeepers may be liable even for mere “gross insults”); (iii) it is directed toward a certain type of plaintiff (children, elderly persons, someone who is pregnant, supersensitive adults if the sensitivity is known to the plaintiff)

Question 9

IIED Bystander Cases

Answer 9

plaintiff may recover by showing either prima facie elements OR that (1) they were present when the injury occurred, (2) the distress resulted in bodily harm or the plaintiff is a close relative of the third person; and (3) the defendant knew these facts

Question 10

Trespass to Chattels

Answer 10

(i) an act by the defendant that interferes with the plaintiff’s right of possession in a chattel [defendant’s mistaken belief that they own the chattel is no defense]

Question 11

Self-Defense

Answer 11

when a person reasonably believes that they are being or are about to be attacked, they may use such force as is reasonably necessary to protect against injury

Question 12

Defense of Others

Answer 12

one may use force to defend another when they reasonably believe that the other person could have used force to defend themselves

Question 13

Defense of Property

Answer 13

one may use reasonable force to prevent the commission of a tort against their real or personal property; a request to desist or leave must first be made unless it would clearly be futile or dangerous

Question 14

Shopkeeper’s Privilege

Answer 14

shopkeeper has privilege to detain a suspected shoplifter for investigation if (i) there is a reasonable belief as to the fact of theft, (ii) the detention is conducted in a reasonable manner [only nondeadly force can be used], and (iii) the detention is for a reasonable period of time and only for the purpose of making an investigation

Question 15

Necessity

Answer 15

a person may interfere with the real or personal property of another when it is reasonably and apparently necessary in an emergency to avoid injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it

Question 16

Children Standard of Care

Answer 16

children are held to the standard of a child of like age, intelligence, and experience; subjective test

Question 17

Professional Standard of Care

Answer 17

professional is required to possess the knowledge and skill of an average member of the profession or occupation in good standing [doctors = national standard]

Question 18

Duty Owed to Discovered/Anticipated Trespassers

Answer 18

land possessor must warn of or make safe any conditions that are: (i) artificial, (ii) highly dangerous [involving risk of death or serious bodily harm], (iii) concealed, and (iv) known to the land possessor in advance

Question 19

Licensee

Answer 19

one who enters onto the land with the possessor’s permission for their own purpose or business rather than for the possessor’s benefit [social guests]

Question 20

Duty Owed to Licensees

Answer 20

land possessor has duty to warn of or make safe hazardous conditions that are (i) concealed + (ii) known to the land possessor in advance

Question 21

Invitee

Answer 21

one who enters onto the land in response to an invitation by the possessor, either for a purpose connected with the business of the possessor or as members of the public for a purpose for which the land is held open to the public

Question 22

Duty to Invitees

Answer 22

land possessor owes duty regarding hazardous conditions that are (i) concealed + (ii) known to the land possessor in advance or could have been discovered by a reasonable inspection

Question 23

Attractive Nuisance

Answer 23

plaintiff must show: (i) a dangerous condition on the land that the owner is or should be aware of, (ii) the owner knows or should know that children might trespass on the land, (iii) the condition is likely to cause injury [it is dangerous because of the child’s inability to appreciate the risk], and (iv) the expense of remedying the situation is slight compared with the magnitude of the risk

Question 24

A clearly stated specific duty imposed by a statute providing for criminal penalties may replace the more general CL duty of care if

Answer 24

(i) the plaintiff is within the protected class, (ii) the statute was designed to prevent the type of harm suffered by the plaintiff

Question 25

Negligent Infliction of Emotional Distress

Answer 25

plaintiff must show, in near miss cases, (i) that the plaintiff was within the “zone of danger” + (ii) that the plaintiff suffered physical symptoms from the distress

Question 26

NIED Bystander Cases

Answer 26

bystander who sees defendant negligently injuring another can recover damages for their own distress if: (i) the plaintiff and the person injured by the defendant are closely related + (ii) the plaintiff was present at the scene of the injury and personally observed/perceived the event

Question 27

Rep Ipsa Loquitur

Answer 27

plaintiff must show that: (i) the accident causing the injury is a type that would not normally occur unless someone was negligent, (ii) negligence is probably attributable to the defendant [often shown by evidence that instrumentality causing the injury was in exclusive control of the defendant

Question 28

Merged Causes

Answer 28

where several causes bring about injury, and any one alone would have been sufficient to cause the injury, the defendant’s conduct is the cause in fact if it was a substantial factor in causing the injury

Question 29

Unascertainable Causes

Answer 29

when there are two acts, only one of which causes injury, the burden of proof shifts to defendants to show that his negligence is not the actual cause

Question 30

Intervening Forces that are almost always foreeseable

Answer 30

(i) medical malpractice; (ii) negligence of rescuers; (iii) protection or reaction forces to the defendant’s conduct, including efforts to protect person or property; (iv) disease or accident substantially caused by the original injury

Question 31

Intervening forces that may be foreseeable if defendant’s negligence increased the risk of harm from these forces:

Answer 31

(i) negligent acts of third persons, (ii) crimes and intentional torts of third persons, (iii) acts of God

Question 32

Imputed Contributory Negligence

Answer 32

the contributory negligence of a third party will be imputed to a plaintiff only when the relationship between the third party and the plaintiff is such that a court could find the plaintiff vicariously liable for the third party’s negligence [employer-employee, partner, joint venturer] [NOT imputed: spouses, parent-child, auto owner-driver]

Question 33

Assumption of the Risk

Answer 33

plaintiff may be denied recovery if they assumed the risk of any damage caused by defendant’s act; must have (i) known of the risk + (ii) voluntarily proceeded in the face of the risk

Question 34

Liability for Domesticated Animals

Answer 34

owner is not strictly liable for injuries caused by domestic animals unless they have knowledge of that particular animal’s dangerous propensities that are not common to the species

Question 35

Liability for Trespassing Animals

Answer 35

owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals

Question 36

Liability for Wild Animals

Answer 36

owner is strictly liable to licensees and invitees for injuries caused by wild animals (even those kept as pets)

Question 37

Abnormally Dangerous Activities

Answer 37

strict liability applies to those engaged in activities that: (i) create a foreseeable risk of serious harm even when reasonable care is exercised by all actors and (ii) are not a matter of common usage in the community

Question 38

Theories of Product Liability

Answer 38

intent, negligence, implied warranties of merchantability and fitness for a particular purpose, representation theories, and strict liability

Question 39

Elements for Strict Products Liability

Answer 39

(i) defendant is a merchant, (ii) the product is defective, (iii) product was not substantially altered since leaving defendant’s control, (iv) plaintiff was making a foreseeable use of the product at the time of the injury

Question 40

Manufacturing Defects

Answer 40

if a product emerges from manufacturing different from and more dangerous than the products that were made properly, it has a manufacturing defect

Question 41

Design Defects

Answer 41

when all products of a line are the same but have dangerous propensities, they may have a design defect; plaintiff usually must show that defendant could have made product safer without serious impact on product’s utility or price (feasible alternative)

Question 42

Government Safety Standards

Answer 42

product’s noncompliance with government safety standards establishes that it is defective; compliance with standard is inconclusive evidence that the product is not defective

Question 43

Information Defects

Answer 43

product may be defective as a result of the manufacturer’s failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent to users

Question 44

Private Nuisance

Answer 44

a substantial, unreasonable interference with another private individual’s use or enjoyment of property that the other individual actually possesses or has a right of immediate possession

Question 45

Substantial Interference

Answer 45

interference must be offensive, inconvenient, or annoying to the average person in the community

Question 46

Unreasonable Interference

Answer 46

one whose severity outweighs its utility

Question 47

Public Nuisance

Answer 47

an act that unreasonably interferes with the health, safety, or property rights of the community

Question 48

Employer Vicarious Liability [Respondeat Superior]

Answer 48

am employer will be vicariously liable for tortious acts committed by their employee if the tortious acts occur within the scope of the employment relationship

Question 49

Indemnification Allowed

Answer 49

(i) in vicarious liability situations; (ii) under strict products liability for the non-manufacturer

Question 50

Defamation

Answer 50

(i) a defamatory statement that specifically identifies the plaintiff, (ii) published to a third party, (iii) falsity of the defamatory language, (iv) fault on the part of the defendant, and (iv) damage to the plaintiff’s reputation

Question 51

Defamation of Public Official/Figure

Answer 51

actual malice, knowledge that the statement was false OR reckless disregard as to whether it was false, must be proved

Question 52

Defamation of Private Persons Concerning Matters of Public Concern

Answer 52

negligence regarding the falsity must be proved if the statement involves a matter of public concern

Question 53

Slander Per se

Answer 53

statements that (i) adversely reflect on the plaintiff’s business or profession, (ii) state that the plaintiff has committed a serious crime, (iii) impute that the plaintiff has engaged in serious sexual misconduct, or (iv) state that the plaintiff has a loathsome disease

Question 54

Types of Invasion of the Right to Privacy

Answer 54

(i) appropriation of the plaintiff’s picture or name, (ii) intrusion on the plaintiff’s affairs or seclusion, (iii) publication of facts placing the plaintiff in a false light, and (iv) public disclosure of private factors about the plaintiff

Question 55

Appropriation of Plaintiff’s Name or Picture

Answer 55

must show unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage

Question 56

Intrusion on Plaintiff’s Affairs or Seclusion

Answer 56

act of prying or intruding must be highly offensive to a reasonable person + the thing into which there is an intrusion must be private

Question 57

Publication of Facts Placing Plaintiff in False Light

Answer 57

“false light” = when one attributes to the plaintiff views they do not hold or actions they did not take; must be something highly offensive to a reasonable person + defendant must circulate the statement to the public at large [if matter of public interest –> actual malice must be proved]

Question 58

Public Disclosure of Private Facts about Plaintiff

Answer 58

public disclosure must be highly offensive to a reasonable person of ordinary sensibilities + truth is not a defense