Torts

Question 1

Battery Intent

Answer 1

Intent for battery exists when the defendant (1) intends to cause contact with the plaintiff’s person, (2) intends to cause contact with a third party but instead causes contact with the plaintiff, or (3) intends to commit an assault (or other tort) but instead commits a battery.

Question 2

Conversion with Permission

Answer 2

A defendant who has permission to use the plaintiff’s chattel commits conversion when he/she (1) intentionally uses the chattel in a way that exceeds the scope of permission and (2) seriously violates the plaintiff’s right to control the chattel. The defendant is liable for the fair market value of the chattel at the time of the conversion.

Question 3

Apparent Consent as Battery Defense

Answer 3

Apparent consent is a defense to battery when consent can be reasonably implied from the plaintiff’s conduct or from custom. However, consent is only a defense where the defendant’s conduct falls within the scope of the plaintiff’s consent.

Question 4

intentional infliction of emotional distress - Conduct

Answer 4

For intentional infliction of emotional distress, conduct is considered extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society.

Question 5

Special relationships imposing duty to protect others

Answer 5

Mnemonic: Please Help Eliminate Safety Concerns Causing Injuries

Parent/child
Hospital/patient
Employer/employees
Shopkeeper/business invitees
Common carrier/passengers
Custodian/person in custody
Innkeeper/guests

Question 6

Common Carriers liability

Answer 6

Under the common-law approach to common-carrier liability, common carriers owe the highest duty of care to their passengers and can be liable for slight negligence. Under the modern approach, common carriers only owe a duty to use reasonable care to protect passengers from harm that arises within the scope of that relationship.

Question 7

traditional contributory negligence jurisdictions

Answer 7

In traditional contributory negligence jurisdictions, a plaintiff’s failure to use reasonable care for his/her own safety is a complete defense to negligence. The defendant can establish the plaintiff’s negligence under the doctrine of negligence per se, but still must prove that the plaintiff’s negligence proximately caused the plaintiff’s harm.

Question 8

duty to known or anticipated trespassers

Answer 8

A land possessor owes a duty to known or anticipated trespassers to (1) warn them about hidden, artificial dangers that are known to the land possessor but unlikely to be discovered by trespassers and (2) use reasonable care in active operations.

Question 9

traditional standard for res ipsa loquitur

Answer 9

Under the traditional standard for res ipsa loquitur, negligence is inferred if (1) the plaintiff’s harm would not normally occur unless someone was negligent, (2) the defendant had exclusive control over the thing that caused the harm, and (3) the plaintiff did nothing to cause the harm.

Question 10

Strict products liability is imposed on ______ if _______

Answer 10

Strict products liability is imposed on any commercial seller in the chain of distribution if (1) the commercial seller’s product contained a defect when it left the commercial seller’s control and (2) that defect caused the plaintiff harm.

Question 11

contributory negligence - as a defense

Answer 11

Under the common-law rule for contributory negligence, the plaintiff’s failure to use reasonable care for his/her own safety is a complete defense to negligence—regardless of the percentage that the plaintiff’s own negligence contributed to the harm.

Question 12

Wild Animals

Answer 12

The owner of a wild animal is strictly liable for harm that is caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal or directly results from the wild animal’s abnormally dangerous characteristics.

Question 13

pure comparative negligence

Answer 13

Under pure comparative negligence, a negligent plaintiff’s recovery is reduced by his/her proportionate share of fault. And if multiple defendants cause the plaintiff indivisible harm, several liability limits the plaintiff to recovering from each defendant the portion of damages that corresponds to his/her proportionate share of fault.

Question 14

modified (or partial) comparative negligence

Answer 14

Under modified (or partial) comparative negligence, recovery is reduced by the plaintiff’s percentage of fault and barred if it exceeds 50%. If multiple defendants cause the plaintiff indivisible harm, then several liability limits the plaintiff to recovering the portion of damages that corresponds to each defendant’s share of fault.

Question 15

Defamation - public figure or official

Answer 15

A plaintiff who is public figure or official can recover for defamation only if the plaintiff proves that the defendant made a false statement about the plaintiff with actual malice—i.e., with knowledge or reckless disregard of the statement’s falsity.

Question 16

Transferred Intent

Answer 16

Under the doctrine of transferred intent, a defendant’s intent to commit an assault (or battery or false imprisonment) against one person transfers to the defendant’s commission of that intended tort against a different person.

Question 17

IIED

Answer 17

A defendant whose extreme and outrageous conduct has harmed a third party may be liable for intentional infliction of emotional distress if (1) the plaintiff contemporaneously perceived that conduct, (2) the plaintiff was closely related to the third party, and (3) the defendant knew of the plaintiff’s presence and that relationship.

Question 18

Shopkeeper’s Privilege

Answer 18

The merchant’s privilege is a defense to false imprisonment if a merchant-defendant reasonably believes that the plaintiff has wrongfully taken or is attempting to take merchandise from its premises and detains the plaintiff for a reasonable time and in a reasonable manner in the immediate vicinity of the merchant’s premises.

Question 19

Private nuisance

Answer 19

Private nuisance is a substantial and unreasonable interference with the use and enjoyment of the plaintiff’s property. An interference is substantial if a normal person in the community would find the interference offensive, annoying, or intolerable—even if the plaintiff is not personally bothered by it.

Question 20

Negligence Definition

Answer 20

For a negligence claim, the plaintiff must prove that the defendant (1) owed the plaintiff a duty that (2) the defendant breached, which (3) caused the plaintiff harm that (4) entitles the plaintiff to damages. Under the modern approach, land possessors owe a duty of care to all land entrants (except flagrant trespassers).

Question 21

Negligence - Majority Duty Rule

Answer 21

Under the majority rule, a duty of care is owed only to persons who might be foreseeably harmed by the defendant’s negligent conduct.

Question 22

Negligence - Affirmative Duty to Act

Answer 22

Although a defendant generally has no affirmative duty to act, such a duty arises when (1) the defendant’s conduct creates a foreseeable risk of harm to the plaintiff or (2) the defendant voluntarily aids or rescues the plaintiff. When this occurs, the defendant must use reasonable care to prevent further harm to the plaintiff. A defendant generally has no duty to aid a plaintiff who is at risk of physical harm unless the defendant’s conduct created that risk. When this occurs, the defendant has a duty to use reasonable care to prevent further harm to the plaintiff.

Question 23

Negligence - Trespassers

Answer 23

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

Question 24

Negligence - Informed Consent Doctrine

Answer 24

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

Question 25

Negligence - intoxication

Answer 25

In negligence cases, a voluntarily intoxicated person is held to the same standard as a reasonably prudent sober person. In contrast, the conduct of an involuntarily intoxicated person will be measured by the standard of a reasonably careful person with the same level of intoxication.

Question 26

Negligence - Modern approach land-possessor liability

Answer 26

Under the modern approach to land-possessor liability, land possessors owe a duty of reasonable care to all land entrants (except flagrant trespassers).

Question 27

Negligence per se - minority approach

Answer 27

Under the minority approach for negligence per se, a defendant’s violation of a statute or ordinance creates a rebuttable presumption (as opposed to a conclusive presumption) that the defendant breached a duty of care.

Question 28

Negligence per se

Answer 28

Under the doctrine of negligence per se, duty and breach are presumed if (1) the defendant violated a statute, (2) that statute was intended to prevent the type of harm suffered by the plaintiff, and (3) the plaintiff is within a class of persons that the statute was intended to protect.

Question 29

Attractive Nuisance

Answer 29

Under the attractive-nuisance doctrine, land possessors have a duty to protect child trespassers from artificial conditions on their land under certain circumstances. A land possessor that breaches this duty of care and causes the child trespasser physical harm is liable for negligence.

Question 30

Negligence - Drivers

Answer 30

In most jurisdictions, automobile drivers owe a duty of ordinary care to guests (who ride free) and passengers (who pay money for the ride). But a minority of jurisdictions have enacted “guest statutes,” under which an automobile driver’s only duty to guests is to refrain from gross or wanton and willful misconduct.

Question 31

Res ipsa loquitur

Answer 31

Res ipsa loquitur permits an inference of negligence when the plaintiff’s harm was the type usually caused by negligence and evidence tends to eliminate other potential causes of that harm.

Question 32

Negligence - Causation

Answer 32

To prove causation in a negligence action, the plaintiff must show that the defendant’s conduct was the actual and proximate cause of the plaintiff’s injuries. Proximate cause occurs when the plaintiff’s harm was a reasonably foreseeable consequence of the defendant’s conduct.

Question 33

Negligence - Compensatory Damages

Answer 33

In a negligence action, a plaintiff can recover compensatory damages based on: (1) the plaintiff’s initial physical harm, (2) any subsequent harm traceable to that initial harm, and (3) steps taken to mitigate the initial harm. But the plaintiff’s actions prior to the defendant’s negligent act are not a factor in determining damages.

Question 34

NIED - zone of danger

Answer 34

Negligent infliction of emotional distress (NIED) liability arises under the zone-of-danger theory when (1) the defendant negligently placed the plaintiff at risk of immediate bodily injury and (2) that risk caused the plaintiff serious emotional harm.

Question 35

Respondeat Superior

Answer 35

Under the doctrine of respondeat superior, an employer is vicariously liable for its employee’s intentional torts only when (1) reasonable force is inherent in and committed during the employee’s job or (2) the employee is authorized to act on the employer’s behalf and has a position that provides an opportunity to commit the tort.

Question 36

Comparative Negligence

Answer 36

In a pure comparative-negligence jurisdiction, the plaintiff’s or the defendant’s recovery is reduced by that party’s percentage of fault. The same is true for a modified comparative-negligence jurisdiction, except that the plaintiff or the defendant is barred from recovery if his/her percentage of fault exceeds 50%. In a pure comparative-fault jurisdiction, when the plaintiff and the defendant are both entitled to recover damages, the plaintiff’s recovery is reduced (i.e., offset) by the defendant’s recovery (and vice versa).

Question 37

Contributory Negligence

Answer 37

Under traditional common-law rules, the plaintiff’s contributory negligence (i.e., failure to exercise reasonable care for his/her own safety) is a complete defense to negligence and bars the plaintiff’s recovery of damages.

Question 38

Domestic Animals

Answer 38

The owner of a domestic animal is strictly liable for any physical harm caused by the animal when (1) the owner knew or had reason to know about the animal’s dangerous propensities and (2) the plaintiff’s harm arose from those dangerous propensities.

Question 39

Commercial seller - strict products liability

Answer 39

A commercial seller is subject to strict products liability when (1) a defective product harms a foreseeable plaintiff when it was used in an intended or reasonably foreseeable way and (2) the defect existed at the time the product left the commercial seller’s control. To avoid strict products liability, a commercial seller must provide reasonable warnings or instructions regarding any nonobvious, foreseeable risk of harm posed by its product if doing so will reduce that risk. Failure to provide adequate warnings or instructions renders the product defective.

Question 40

Component - strict products liability

Answer 40

The commercial supplier of a component that is integrated into a defective product is subject to strict liability when (1) the component is defective or (2) the supplier substantially participated in the process of integrating the component into the product’s design and the component’s integration caused that product to be defective.

Question 41

Learned-intermediary rule

Answer 41

Under the learned-intermediary rule, a manufacturer of a prescription drug or medical device will not be held strictly liable for inadequate warnings or instructions if the manufacturer warned the prescribing physician about the risk of harm associated with that product.

Question 42

Intrusion upon seclusion

Answer 42

Intrusion upon seclusion (a type of invasion of privacy) occurs when the defendant intentionally intrudes on the plaintiff’s private affairs in a manner that would be highly offensive to a reasonable person.

Question 43

Intentional Interference with a contract

Answer 43

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