Torts

Question 1

Battery

Answer 1

1. D intends contact with the person of another
2. D’s conduct causes the contact
3. the contact is harmful or offensive

Question 2

What is “intent” in intentional torts?

Answer 2

Purpose or substantial certainty result will occur

Question 3

Assault

Answer 3

1. P anticipates an imminent and harmful or offensive contact
2. D’s affirmative conduct causes P to anticipate the contact
3. D intends to cause P to anticipate the contact (transferred intent applicable)

Question 4

IIED

Answer 4

Intent or recklessness

Extreme and outrageous conduct

Causes P severe emotional distress

Question 5

False Imprisonment

Answer 5

D intends to confine another

D’s conduct causes P’s confinement or D fails to release P from confinement despite duty to do so

P is conscious of the conduct

Question 6

Defenses to Intentional Torts

Answer 6

Consent - actual, apparent, presumed, emergency

Defense (self, third persons, property)

Question 7

Trespass to chattels vs. Conversion

Answer 7

Trespass to chattels - minor but intentional interference with P’s property.
Must show Actual damages.
If dispossessed, harm inferred. If only use or intermeddling, must show actual damages.
Transferred intent applies

Conversion - Serious interference that deprives P of right to use chattel. Full value of property.
Transferred intent does not apply

Question 8

Trespass to land vs. Nuisance

Answer 8

Trespass - intent to enter land or cause physical invasion.

Nuisance - substantial and unreasonable interference with another’s use or enjoyment. Does not need to be a physical invasion

Question 9

Standard of care to land entrants

Answer 9

Trespasser - duty to refrain from willful, wanton, reckless or intentional misconduct

Licensee (social guests, emergency responders)- no duty to inspect, but must warn of known or should be known dangers

Invitees (business purposes or users of land’s purpose) - reasonable care to inspect, discover dangerous conditions, and protect invitee

Question 10

Custom

Answer 10

Evidence of custom is generally not dispositive.

UNLESS, professionals.

Also, physicians must abide by national standard

Question 11

Negligence per se

Answer 11

(1) violation of statute that was meant to protect others

(2) plaintiff was in the class of people protected by

(3) harm was the type of harm statute designed to protect against

(4) Causation

Defenses - compliance is more dangerous than noncompliance; violation was reasonable

Question 12

When does defendant have affirmative duty to act

Answer 12

Assumption of Duty

Placing another in Peril

Contract

Relationship

Statute

Question 13

Who is owed a duty of care, generally?

Answer 13

All foreseeable persons who may foreseeably be injured by a defendant’s failure to act as a reasonably prudent person under the circumstances.

Question 14

Thin Skull Plaintiff

Answer 14

A defendant is liable for the extent of harm due to a plaintiff’s pre-existing physical or mental condition, even if the extent of the injury is not foreseeable.

Question 16

What standard of care does a physician owe?

Answer 16

Held to a national standard of care to act with the same skill, knowledge, and care as an ordinary practitioner.

Question 17

Strict products liability

Answer 17

Plaintiff must prove (1) the product was defective (in manufacture, design, or failure to warn), (2) the product was defective when it left defendant’s control, and (3) the defect caused the plaintiff’s injuries when it was used in an intended or reasonably foreseeable way.

Manufacturing- product does not conform to D’s own specs

Design - Consumer expectation (dangerous beyond expectation of reasonable customer) or risk-utility test (economically feasible and safer alternatives)

Failure to warn - (i) foreseeable risk of harm, (ii) not obvious to ordinary user, (iii) warning would have reduced or eliminated risk.

RESULT: strictly liable. While contributory fault generally not a defense, assumption of risk can be valid defense.

IF NOT STRICT LIABILITY: analyze for negligence

Question 18

Alternate Causation Theory

Answer 18

Plaintiff’s harm was caused by (1) one of a small number of defendants, (2) each defendant acted tortiously, and (3) all of whom are present before the court, then

burden shifts to defendants to prove that they were not the cause.

Question 19

Abnormally Dangerous activities

Answer 19

A defendant will be held liable for engaging in abnormally dangerous activities.

An activity is abnormally dangerous if (1) it creates a foreseeable and highly significant risk of harm, (2) the defendant’s reasonable care doesn’t decrease the risk, and (3) it is one not commonly engaged in.

Importantly, though, they will only be liable for the harm that makes the activity abnormally dangerous.

Question 20

Is a rescuer a foreseeable plaintiff?

Answer 20

Yes, therefore D will be liable for rescuer injuries.

EXCEPTION : firefighter exception, if the harm that occurred was an inherent risk of that person’s job.

Question 21

When does an employer who hires an independent contractor remain vicariously liable?

Answer 21

When it is to perform inherently dangerous work.

When the employer is negligent in selecting the employee

IC acts under apparent agency

Employer retains some control

Question 22

Intentional misrepresentation

Answer 22

Defendant
(1) knowingly or recklessly
(2) misrepresents a material fact
(3) plaintiff reasonably relied on misrepresentation
(4) plaintiff suffered a pecuniary loss

Question 23

Defense to property (torts)

Answer 23

D must reasonably believe P is intruding and will not listen to requests to stop

Force used must be PROPORTIONATE

can NOT use deadly force

cannot use force to reclaim (no self help) unless fresh pursuit.

Question 24

Public vs. Private Nuisance

Answer 24

Public - unreasonable interference with a right common to public (health, safety, peace) (no need to have possessory interest)

Private - unreasonable interference with my use or enjoyment of my own property (must have possessory interest)

Question 25

What duty do seller’s owe to buyers of property?

Answer 25

Duty to disclose known, concealed, or unreasonably dangerous conditions.

Liability for harm caused to third parties remains with Seller until Buyer has had time to discover defect.

Question 26

Substantial Factor Causation theory

Answer 26

If there are multiple but for causes, then causation is satisfied if each defendant was a substantial cause of the harm

Question 27

Proximate Cause rule statement

Answer 27

the injury was a foreseeable result of what made the defendant’s conduct tortious in the first place.

Question 28

Negligent Infliction of Emotional Distress

Answer 28

Plaintiff must be in

(1) Zone of Danger; or

(2) Bystander that was (i) closely related, (ii) at the scene, and (iii) witnessed the accident

And then plaintiff must show that they experienced emotional distress with PHYSICAL INJURY

BUT,
(3) mortician mishandling corpse or common carrier delivering false news of death does not require showing of physical injury

Question 29

Comparative Fault - two rules

Answer 29

Pure - plaintiff’s recovery reduced by his contributory fault, regardless of amount of fault

Modified - plaintiff’s recovery reduced by contributory fault, but barred from recovery if more at fault than defendant

Question 30

Strict liability - wild animals

Answer 30

Applies to wild animals

Also to domestic animals if owner knows or should have reason to know of dangerous propensity

still need to show causation and harm (not just economic loss)

Question 31

Elements of Defamation

Answer 31

(1) defamatory language

(2) of or concerning plaintiff

(3) Published to third party who understands defamatory nature (either negligently or intentionally)

(4) damages the plaintiff’s reputation

(5) must be false, otherwise D can assert truthfulness as defense

Question 32

Constitutional Limits to Defamation

Answer 32

(1) Fault

Public Figure or Official - must show actual malice

Public Concern but private individual - negligence OR actual malice

(2) Damages
Public Official or Figure, or Public Concern - Must show actual malice

Private Figure, Not Public Concern - presumed damages - both actual and punitive, no need to show actual malice

Question 33

Defenses to Defamation

Answer 33

Truth

Consent

Privilege - said in court proceeding for example

Question 34

Misappropriation

Answer 34

Unauthorized use of defendant’s name, likeness, or image for defendant’s advantage

Must show Injury

Must show lack of consent

Question 35

Intrusion upon Seclusion

Answer 35

D’s intrusion into P’s private affairs would be objectionable to reasonable person

Question 36

False light

Answer 36

Published facts about P that place in false light and are highly offensive to a reasonable person

Question 37

Public Disclosure of Private facts

Answer 37

If (1) action would be highly offensive to reasonable person; and (2) not a legitimate concern to the public

Question 38

IIED - liability to third parties

Answer 38

(1) if closely related family member contemporaneously present, then can be liable

Question 39

Defenses to trespass to land

Answer 39

Private necessity - can enter land, but liable for actual damages

Public necessity - if public disaster, cannot be liable for actual damages

Question 40

Vicarious liability

Answer 40

Generally, an employer is liable for the acts of its employee when the acts are within the scope of employment.

Generally, an employer is not liable for acts of independent contractor unless exception applies

Question 41

Slander Per Se

Answer 41

For defamation action, No proof of special damages (pecuniary loss) required when
- serious crime
-conduct that affects individual’s occupation
-serious sexual misconduct
-having a loathsome disease

Question 42

Joint and Several liability

Answer 42

default on MBE

each D found liable for single indivisible harm liable for total harm

CONTRAST: pure several, D only liable for portion of harm

Question 43

Strict liability and assumption of risk

Answer 43

Comparative fault jurisdiction (default on MBE) - some courts allow a reduction in P’s recovery, others don’t

Contributory negligence jurisdiction - does not bar recovery, BUT knowing assumption of risk does bar recovery.

It is probably the case that if the comparative fault jurisdiction does not allow reduction, they will allow assumption of risk defense.

Question 44

Learned Intermediary Rule

Answer 44

Manufacturer of prescription drug or medical device will satisfy their duty to warn by warning the prescribing physician UNLESS

(1) birth control pills; or
(2) manufacturer knows the pills will be dispensed without personal intervention or healthcare evaluation

Question 45

Pure economic loss

Answer 45

Only recoverable if combined with physical injury or property damage

BUT, with strict products liability, damage to the product itself is only pure economic loss, not property damages.

Question 46

Which parties can be responsible in a strict products liability suit?

Answer 46

Manufacturers, distributors, suppliers, or commercial sellers.

NOT service providers (Barber, gym, etc.)

Question 47

Res ipsa loquitor

Answer 47

(1) injury that occurs is the kind that doesn’t usually occur in the absence of negligence

(2) Caused by agent or instrumentality within EXCLUSIVE CONTROL of defendant

(3) it was not due to any action on the part of the plaintiff (relaxed requirement, contributory negligence not a ban)

Question 48

When are damages presumed in a defamation action?

Answer 48

When it is libel or slander per se. Slander alone, damages are not presumed.

Importantly, to recover damages as a public official or on matter of public concern, must show actual malice