Torts

Question 1

What are the general elements of any intentional tort?

Answer 1

The plaintiff must prove (1) an ACT by the defendant, (2) INTENT by the defendant, and (3) CAUSATION of the result to the plaintiff from the defendant’s act

Question 2

Can bumping into people in public technically result in a valid battery charge?

Answer 2

No. Consent will be implied for the ordinary contacts of everyday life (EX: minor bumping on a crowded bus).

Question 3

How does a court consider a plaintiff’s hypersensitivity?

Answer 3

Courts ignore the hypersensitivity of plaintiffs.

Question 4

What is required for a defendant to have intent for torts purposes?

Answer 4

The defendant must have the desire to produce the legally forbidden consequence.

Question 5

How does transferred intent work in Torts?

Answer 5

The transferred intent doctrine applies when the defendant intends to commit a tort against one person but instead: (1) Commits a different tort against that person; (2) Commits the same tort as intended but against a different person OR (3) Commits a different tort against a different person.
In such cases, the intent to commit a certain tort against one person is transferred to the tort actually committed or to the person actually injured for purposes of establishing a prima facie case.

Question 6

What is Battery in Tort law?

Answer 6

A battery occurs when there is (1) an act by the defendant that causes a harmful or offensive contact with the plaintiff’s person, (2) intent by the defendant to bring about a harmful or offensive contact, and (3) causation.
- NOTE: Contact need not be instantaneous.

Question 7

When is a contact offensive for purposes of Battery?

Answer 7

Contact is offensive if it would be considered offensive to a reasonable person.
- Think: unpermitted by a person of ordinary sensitivity.

Question 8

What is the plaintiff’s person for purposes of Battery?

Answer 8

Plaintiff’s person includes anything connected to the plaintiff (EX: clothing or a purse).

Question 9

What damages are required for a Tort Battery claim?

Answer 9

The plaintiff can recover nominal damages even if actual damages aren’t proved. The plaintiff may recover punitive damages for malicious conduct.

Question 10

What is Assault in Tort law?

Answer 10

An assault occurs when (1) the defendant INTENDS to create a REASONABLE APPREHENSION (knowledge of / anticipate D’s act) of an IMMEDIATE BATTERY (harmful or offensive (unconsented) contact to the plaintiff’s person) and (2) the defendant commits an ACT CREATING a reasonable apprehension in the plaintiff of an IMMEDIATE BATTERY.
- NOTE: can also be an attempt to commit a battery! (criminal law)

Question 11

When is apprehension reasonable for assault purposes?

Answer 11

The apprehension of harmful or offensive contact must be reasonable.
- Courts generally will not protect a plaintiff against exaggerated fears of contact.
- NOT fear or apprehension. It’s more like knowledge. For apprehension to be shown, the plaintiff must have been AWARE of the threat from the defendant’s act, although the plaintiff need not be aware of the defendant’s identity.
- The plaintiff must be apprehensive that they are about to become the victim of an IMMEDIATE battery.

Question 12

When a defendant is unable to cause a battery but the plaintiff has reasonable apprehension of defendant’s immediate battery, what result?

Answer 12

If the defendant has the apparent ability to commit a battery, this will be enough to cause a reasonable apprehension.

Question 13

Are words alone sufficient to cause an assault for purposes of Tort law?

Answer 13

In the vast majority of cases, words alone are not enough. For the defendant to be liable, the words must be coupled with conduct.
However, words can negate reasonable apprehension (EX: the defendant shakes their fist but states that they are not going to strike the plaintiff).

Question 14

What damages are required for a plaintiff to recover under an Assault claim?

Answer 14

The plaintiff can recover nominal damages even if actual damages are not proved. Malicious conduct may permit recovery of punitive damages.

Question 15

What is False Imprisonment in Tort law?

Answer 15

False Imprisonment occurs when (1) an act or omission on the part of the defendant CONFINES the plaintiff to a BOUNDED AREA, (2) the defendant INTENDED to confine the plaintiff to the bounded area, and (3) the plaintiff is AWARE of the confinement or was INJURED by it.
- Confinement must be unlawful.
- Plaintiff must not give valid consent.

Question 16

What are some acts that don’t constitute False Imprisonment for Tort purposes?

Answer 16

Moral pressure and future threats (current threats can be sufficient though).

Question 17

How long must a plaintiff be constrained to win on a False Imprisonment claim?

Answer 17

It is irrelevant how short the period of the confinement is.

Question 18

What awareness of confinement must a plaintiff have to succeed on a False Imprisonment claim? What damages must the plaintiff suffer?

Answer 18

The plaintiff must KNOW of the confinement or BE HARMED by it (P can recover nominal damages even if actual damages are not proved. Punitive damages may be recovered if D acted maliciously).

Question 19

What is a bounded area for purposes of False Imprisonment in tort law?

Answer 19

In a “bounded area,” freedom of movement must be limited in all directions. There must be no reasonable means of escape known to the plaintiff.

Question 20

What is Intentional Infliction of Emotional Distress?

Answer 20

The Plaintiff must prove: (1) an act by the defendant amounting to extreme and outrageous conduct, (2) that the plaintiff suffered severe emotional distress, and (3) intent (or reckless disregard as to the effect of their conduct).
- Extreme and outrageous conduct: Exceeds all bounds of decency tolerated in a civilized society.
- Mere insults are not considered outrageous.

Question 21

What are the Hallmarks of Outrageousness for IIED purposes?

Answer 21

These are classics, but not a dispositive list:
- Conduct is repetitive in nature (conduct banned in the first place, but then it keeps happening; EX: debt collection by harassment at 3am).
- Defendant is a common carrier or innkeeper (anything that they’re doing to distress patrons is outrageous because they’re obligated to treat their patrons with courtesy and respect).
- Plaintiff is a member of a fragile class of persons (young people; elderly people; pregnant women).
NOTE: Targeting a known sensitivity is outrageous.

Question 22

What type of evidence must a plaintiff in an IIED claim offer to prove that they suffered severe emotional distress?

Answer 22

The plaintiff is not obligated to offer a particular type of evidence–they can offer just about any kind.
- This is a subjective element and ultimately will go to the jury (it’ll be stipulated one way or another in the fact pattern).

Question 23

What is Trespass to Land in Tort law?

Answer 23

The elements are: (1) P must commit a physical invasion (2) of land and (3) have the intent to do so (however, awareness of boundary is not needed–just getting to the location by a deliberate act).
- Can be brought by anyone in actual or constructive possession (even if that possession is without title or legal right).
- Can be by person OR by object (EX: throwing something onto the land).
- Doesn’t need to be destructive.
- Must be tangible (EX: playing loud music or using floodlights are insufficient).
- “Land” includes the air above and soil below is included to a reasonable distance.

Question 24

What are the consent rules for trespass? What if the possessor is not present to consent?

Answer 24

EXPRESS CONSENT: When a possessor of land grants consent, a would-be trespasser will not be liable for trespass.
IMPLIED CONSENT: Where (1) action is necessary to save an important interest in person or property (EX: an emergency like a fire) and where (2) the possessor is not in a position to consent (EX: absent from the property), but (3) a reasonable person would conclude that consent would be given, consent will be implied by law.

Question 25

What duty does a possessor of land owe to those off the premises?

Answer 25

Generally, a possessor of land owes no duties to those off the premise for natural conditions, however, a possessor of land may be liable for damage caused by unreasonably dangerous artificial conditions or structures abutting adjacent land.

Question 26

What is Trespass to Chattels?

Answer 26

A Trespass to Chattels occurs when the is (1) an act by the defendant that interferes with the plaintiff’s right of possession in a chattel and (2) intentionality of the interference.
- Remedy for theft or vandalism (depending on degree of interference). This one for smaller harms (as opposed to Conversion for greater harms).
- Mistake as to ownership is no defense.
- Owner keeps the chattel after the suit.

Question 27

What is Conversion in Tort law?

Answer 27

Conversion applies when there is (1) an act by the defendant that interferes with the plaintiff’s right of possession in a chattel, (2) the interference is intentional, and (3) the interference is serious enough in nature or consequences to warrant that the defendant pay the chattel’s full value.
- Remedy for theft or vandalism (depending on degree of interference). This one for greater harms (as opposed to trespass of chattels for smaller harms).
- Mistake as to ownership is no defense.

Question 28

What is the recovery in a conversion case?

Answer 28

The plaintiff can recover the FMV of the converted property (at the time the conversion occurred).
- The defendant can keep the converted property if this occurs.

Question 29

May a plaintiff consent to an intentional tort?

Answer 29

The defendant is not liable if the plaintiff expressly consents to the defendant’s conduct. The plaintiff’s consent to the defendant’s conduct is a defense to ALL intentional torts (but the majority view is that one cannot consent to a criminal act).
- Must have the legal capacity to consent.

Question 30

What are the types of consent in tort law?

Answer 30

• Express: Words spoken or written by the plaintiff giving the defendant the right to act in the challenged way.
• Implied: Implied/Apparent consent is that which a reasonable person would infer from [social] custom and usage or the plaintiff’s conduct (EX: body language–extending hand and introducing yourself = consenting to touching their hand).

Question 31

What are the exceptions to express consent?

Answer 31

(1) mistake if the defendant knew of and took advantage of the mistake, (2) fraud, and (3) duress.

Question 32

How does the scope of consent affect a defendant’s liability?

Answer 32

If the defendant exceeds the scope of consent by committing a more intrusive invasion or by invading a different interest than the one the plaintiff referenced, they may be liable.

Question 33

What are the defenses to intentional torts?

Answer 33

• Consent
• Protective Privileges
• Necessity Defenses

Question 34

What are Protective Privileges in Tort law? What considerations should be taken into account when analyzing these?

Answer 34

(1) Self-defense, (2) defense of others, and (3) defense of property.
- Timing: These apply only for preventing the commission of a tort. Already committed torts do not qualify (too soon or too late?).
- Accuracy: The party using the defense must have a reasonable belief that the threat is genuine (is a mistake permissible as to whether the tort being defended against is actually being committed?).
- Proportionality: Must use a proper amount of force.

Question 35

What is Shopkeeper’s Privilege?

Answer 35

This is a specific type/application of the Protective Privileges defense. A merchant or shopkeeper may detain a customer if they have a reasonable belief that the customer has shoplifted. So long as the detention is limited to a reasonable amount of time, done in a reasonable manner, and based on reasonable suspicion, then no liability will apply to the merchant/shopkeeper.

Question 36

What is Necessity? What are the Necessity defenses?

Answer 36

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. Necessity only applies to property torts. There are two types of necessity:
(1) Public Necessity: D acts in an emergency to protect the community (avert an “imminent public disaster”) (not for D’s benefit).
- This is an absolute defense.
(2) Private Necessity: D’s action was to prevent serious harm to a limited number of people.
- This is a limited/qualified defense: The actor must just pay compensatory damages for any injury they cause (unless the act was to benefit the property owner).
- Privilege to enter and to stay in an emergency situation as long as the emergency persists.

Question 37

When can Necessity be used as a defense in tort-against-a-person situations?

Answer 37

Necessity is a defense only to property torts.

Question 38

May force be used by a property owner to defend property from tortious interference?

Answer 38

Yes.

Question 39

May force be used by a citizen in effecting a misdemeanor arrest?

Answer 39

Yes.

Question 40

May force be used by a landowner to regain real property after being tortiously dispossessed?

Answer 40

No. Most states today do not allow resort to “self-help”; one who has been wrongfully excluded from possession of real property may bring an ejectment action or other summary procedure to recover possession.

Question 41

May force be used by an owner of chattel to recapture the chattel?

Answer 41

Yes.

Question 42

Generally, must a landowner make a request to desist before defending her property?

Answer 42

Yes.

Question 43

What limits apply to using force to retake chattel(s)?

Answer 43

The defense of recapture of chattels is limited by the circumstances of the original dispossession. When another’s possession of the owner’s chattel began lawfully, the owner may use only peaceful means to recover the chattel. Force may be used to recapture a chattel only when in “hot pursuit” of one who has obtained possession wrongfully (e.g., by theft).

Question 44

When may a person have a full defense for interfering with the property of another?

Answer 44

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

Question 45

What are the elements of negligence?

Answer 45

(1) Duty, (2) Breach, (3) Causation, and (4) Damages.
Negligence is

Question 46

To what kind of hypothetical plaintiffs is a duty of care owed?

Answer 46

A duty of care is owed only to FORESEEABLE victims/plaintiffs—the class of persons who were foreseeably endangered by the defendant’s negligent conduct.
- Plaintiffs outside of the “zone of danger” (think Palsgraf) are not owed a duty. Think of the nature of the activity to determine how large this zone is.
- NOTE: A RESCUER is a foreseeable plaintiff when the defendant negligently put themselves or a third person in peril (danger invites rescue).

Question 47

May a defendant be liable to a rescuer of someone that the defendant has injured?

Answer 47

A defendant is liable if he negligently puts a third person in peril and the plaintiff is injured in a rescue attempt. A rescuer is a foreseeable plaintiff is the rescue is not reckless.
- Unusual manner of injury would be irrelevant.

Question 48

What is Duty in negligence?

Answer 48

Duty is a legally imposed obligation to take risk-reducing precautions for the benefit of others.

Question 49

In the Negligence context, how much risk reduction is required?

Answer 49

A person’s conduct is judged based on the hypothetical conduct of a reasonably prudent person acting under similar circumstances.
- There is no allowance for a Defendant’s particular shortcomings.

Question 50

What sort of standard is the reasonable person standard? To whom does it apply? What exception(s) is/are there?

Answer 50

It’s an objective standard that applies to everyone.
- A defendant’s mental deficiencies and inexperience are not taken into account (in other words, low intelligence is no excuse).
- Where relevant, the defendant’s physical characteristics are incorporated (height, blindness, deafness, etc.).

Question 51

What result for the reasonable person standard when a person has superior skill or knowledge?

Answer 51

In the case of a person with superior skill or knowledge, the person’s conduct is compared to the conduct of a reasonably prudent person with the same superior skill or knowledge of that person.

Question 52

What are the special standards of care under negligence (deviating from the normal reasonable person standard)?

Answer 52

• Children
• People with disabilities
• Professionals
• Possessors of land
• Statutory standard of care
• Affirmative duties to act

Question 53

What result for the reasonable person standard when the defendant is a child?

Answer 53

• Under 5: No standard of care.
• Age 5-18: Hypothetical child of similar age, experience, and intelligence acting under similar circumstances. This makes it a more flexible standard–being adjusted to the kid at issue (subjective).
• NOTE: Children engaged in potentially dangerous adult activities may be required to conform to an “adult” standard of care (EX: driving a car or boat).

Question 54

What result for the reasonable person standard when the defendant is a Professional? What are these usually called?

Answer 54

A professional’s conduct is judged based on the knowledge and skill of an average (not reasonable–it’s an empirical, not hypothetical, question) member of the profession or occupation in good standing providing similar professional services. Negligence claims brought against professionals are colloquially called malpractice claims.
- NOTE: For doctors, most courts apply a national standard of care to evaluate their conduct. Also, watch out for specialists.
- POLICY: Presumably, in professions where people are educating each other, the best way to do it is the way that it’s currently done. It’s not definitive, but it sheds light on the situation.
- A doctor has a duty to disclose the risks of treatment to enable a patient to give informed consent. A doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent on learning of the risk.

Question 55

What result for the reasonable person standard when the defendant is a possessor of land and others have entered their property?

Answer 55

(Under the traditional rule followed in many states, but abolished in the majority) The duty owed a plaintiff on the premises for dangerous conditions on the land depends on the plaintiff’s status as unknown trespasser, known trespasser, licensee, or invitee.
- NOTE: Possessor not always the owner.
- NOTE: MBE questions testing the distinction between licensees and invitees will specify that the jurisdiction follows the traditional rules for land possessor liability.

Question 56

(Under the traditional rules) How is the standard of care for a possessor of land analyzed when the plaintiff is an unknown trespasser?

Answer 56

No duty is owed to an undiscovered trespasser.
- NOTE: abolished in the majority of states.

Question 57

(Under the traditional rules) How is the standard of care for a possessor of land analyzed when the plaintiff is a known or anticipated trespasser?

Answer 57

As to discovered or anticipated trespassers, the land possessor must warn of or make safe of conditions if they are [1] artificial, [2] highly dangerous (could kill or seriously maim), [3] concealed, and [4] known to the land possessor in advance.
- NOTE: abolished in the majority of states.

Question 58

(Under the traditional rules) How is the standard of care for a possessor of land analyzed when the plaintiff is a licensee?

Answer 58

When a person enters the land with the permission of the possessor but without any financial benefit to the possessor (EX: social guests or solicitors), a duty of care is owed if the condition is [1] concealed from the licensee and [2] known in advance by the possessor.
- NOTE: abolished in the majority of states.

Question 59

(Under the traditional rules) How is the standard of care for a possessor of land analyzed when the plaintiff is an invitee?

Answer 59

When a person enters the land with the possessor’s permission for the financial benefit of the possessor (includes when open to the public at large; EX: local business or an airport), a duty of care is owed if the condition is [1] concealed from the invitee and [2] known by the possessor OR could have been discovered by reasonable inspection.
- A business owner has (1) a duty to inspect and (2) a duty to make safe.
- CANNOT contract away the duty to make safe to an independent contractor.
- NOTE: abolished in the majority of states.

Question 60

When a possessor of land knows of a hazardous condition, to satisfy their premises liability duty, what can they do?

Answer 60

• They can eliminate a hazardous condition through repair, replacement, or removal of the condition.
• They can warn of the hazardous condition. The warning must bs sufficiently complete to communicate the extent of the warning. If the person will be on the property for an extended period of time, they must warn in such a way to keep that warning present in the person’s mind (EX: with signs).

Question 61

When a possessor of land knows of a hazardous condition, what must they do to satisfy their premises liability duty for purposes of giving warning to firefighters and police?

Answer 61

The firefighters and police are owed no duty for the risks inherent to their job.

Question 62

When a possessor of land knows of a hazardous condition, what must they do to satisfy their premises liability duty for purposes of trespassing children?

Answer 62

A person in possession of property owes a child a duty of reasonably prudent care under the circumstances to protect from artificial hazards. To establish the doctrine’s applicability, the plaintiff must show: (1) A dangerous condition on the land that the owner is or should be aware of, (2) The owner knows or should know that children might trespass on the land, (3) The condition is likely to cause injury (it is dangerous because of the child’s inability to appreciate the risk), and (4) The expense of remedying the situation is slight compared with the magnitude of the risk.
- If it’s highly unlikely that children will trespass, then it may be reasonable to not remedy the hazards on your land. However, think of whether there’s something on the land that will draw the children in.

Question 63

When does a statute replace the common law duty of care for Torts purposes (what is the test)?

Answer 63

A clearly stated specific duty imposed by a statute providing for criminal penalties (including fines for regulatory offenses and ordinances, such as for speeding) may replace the more general common law duty of due care if: (1) The plaintiff is within the PROTECTED CLASS and (2) The statute was designed to prevent the TYPE OF HARM suffered by the plaintiff.
- When wholly covered, amounts to negligence per se on the part of the defendant.

Question 64

When a court borrows a criminal statute as a standard of care and the defendant breaches this, what result for liability?

Answer 64

Negligence per se.

Question 65

When a plaintiff seeks to borrow a criminal statute as a standard of care, what is the analysis?

Answer 65

(1) Legal: Is the statute legally appropriate (class of persons and type of harm)?
(2) Factual: Did D violate the statutory command?
- If yes to both, then it’s negligence per se.

Question 66

What is a “class” for purposes of a tort statutory negligence analysis?

Answer 66

A group of people short of the public as a whole.

Question 67

When both parts of the two-part test to the statutory negligence test are met, what are exceptions that will remove a defendant’s negligence?

Answer 67

• Compliance would have been more dangerous than the defendant’s conduct.
• Compliance would have been beyond the defendant’s control / impossible (EX: had heart attack, so couldn’t stop the car).

Question 68

Does compliance with a statute establish a conclusive presumption of due care?

Answer 68

No. Compliance with a statute does not establish a conclusive presumption of due care.
- In some cases, not going beyond the minimum statutory requirements may be negligent.

Question 69

In general, what duties to act affirmatively exist?

Answer 69

In general, absent something more, there is no affirmative duty to act. It is only when you choose to act that you must act as a reasonably prudent person under the circumstances.
- There is no duty to rescue.

Question 70

In what circumstances is there an affirmative duty to act?

Answer 70

• Relationship between the parties (innkeeper/guest; common carrier / passenger; shop keeper; shoppers; family member / family member; etc.).
• Defendant caused the peril (whether negligent or non-negligent)
• Assumption of duty by acting

Question 71

When there is an affirmative duty owed, what is the standard of care owed?

Answer 71

The person must act as a reasonably prudent person under the circumstances (normal negligence standard).

Question 72

How is a situation analyzed when someone seeks to rescue another and causes harm or injury?

Answer 72

One may assume a duty to act reasonably by acting (EX: once the defendant undertakes to aid someone, they must do so with reasonable care). They must act as a reasonable person under the circumstances (normal negligence standard).
- Many states have enacted Good Samaritan statutes, which exempt doctors, nurses, etc., from liability for ordinary, but not gross, negligence when they come to another’s rescue (superseding the common law rule of just the reasonable person standard).

Question 73

How is the reasonable person standard applied when there is an emergency?

Answer 73

A defendant must act as a reasonably prudent person would under the same emergency conditions. The emergency is not to be considered, however, if it is of the defendant’s own making.

Question 74

When a defendant engages in negligent action that didn’t physically harm the plaintiff, how might the plaintiff still recover?

Answer 74

Through a Negligent Infliction of Emotional Distress claim.

Question 75

What are the different types of Negligent infliction of Emotional Distress cases?

Answer 75

• Near Miss Case
• Bystander Case
• Business Relationship Case

Question 76

How is a Near Miss NIED case analyzed?

Answer 76

The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The plaintiff usually must satisfy two requirements to prevail: (1) D’s negligence placed P in the zone of physical danger and (2) P must suffer physical symptoms from the distress.
- The plaintiff will be considered to be within the zone of danger of the defendant’s negligent acts when the plaintiff is sufficiently close to the defendant such that they are subject to a high risk of a physical impact.
- Most courts in these cases require that the emotional distress caused by defendant’s conduct manifest itself in physical symptoms (NOTE: severe shock to the nervous system that causes physical symptoms will satisfy this requirement). A growing minority of states have dropped the requirement of physical symptoms.

Question 77

How is a Bystander NIED case analyzed?

Answer 77

BACKUP IF ZONE OF DANGER ISN’T SATISFIED. A bystander outside the “zone of danger” of physical injury who sees the defendant negligently injuring another can recover damages for their own distress as long as: (1) The plaintiff and the person injured by the defendant are closely related family members (very restrictive: probably not siblings or fiancés) and (2) The plaintiff was PRESENT at the scene of the injury and personally observed or PERCEIVED THE EVENT (contemporaneous witness).
- Most states drop the requirement of physical symptoms in this situation.

Question 78

When can a plaintiff recover in Business Relationship NIED cases?

Answer 78

P can recover if it’s highly foreseeable that careless performance by D will produce emotional distress.
- EX: Patient/Medical laboratory (misdiagnose cancer and cause severe emotional distress).
- EX: Customer/Funeral Parlor (customer is emotionally fragile and the parlor loses the body).
- EX: NOT Customer/Dry Cleaner (ruin clothing and the customer is distressed–no good).

Question 79

How may a plaintiff use custom or usage evidence to establish Breach in a Torts case?

Answer 79

When the standard of care is “reasonable prudence,” evidence of the custom or usage of others may be used to establish how a reasonable person should have behaved under the circumstance. However, this evidence is not conclusive on the question of whether certain conduct amounted to negligence. For example, although certain behavior is custom in an industry, a court may find that the entire industry is acting negligently.

Question 80

What is Res Ipsa Loquitur? When is it used?

Answer 80

In some cases, the very occurrence of an event may tend to establish a breach of duty. The doctrine of res ipsa loquitur requires the plaintiff to show that:
(1) The accident causing the injury is a type that would not normally occur (probability + common knowledge) unless someone was negligent and
(2) The negligence is probably attributable to the defendant (this type of accident ordinarily happens because of the negligence of someone in D’s position).
- This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant.
- Res Ipsa Loquitur is used by Ps when they are severely lacking information about D’s breach.

Question 81

What effect for evidentiary purposes when Res Ipsa Loquitur is established? Can the plaintiff lose when Res Ipsa Loquitur is established?

Answer 81

Where res ipsa loquitur is established, the plaintiff has made a prima facie case and no directed verdict may be given for the defendant (helps P get the case submitted to the jury / trier-of-fact for determination).
The plaintiff can still lose if the inference of negligence is rejected by the trier of fact.

Question 82

Must there be some evidence connecting the defendant to the negligence to establish a Res Ipsa Loquitur claim? Is evidence of the defendant’s actual possession of the instrumentality that caused the injury needed?

Answer 82

Yes. However, it doesn’t need to be established that D had actual possession of the instrumentality causing the injury.

Question 83

What is Factual Causation? How is it demonstrated?

Answer 83

Once negligent conduct is shown (a breach of the standard of care owed to P), the plaintiff must show that the conduct was the cause of their injury.
Factual Causation is demonstrated via the But-For test. Under this test, an act or omission is a factual cause of an injury when the injury would not have occurred “but for” the act or omission.

Question 84

How can a defendant rebut a plaintiff’s showing of factual causation after the plaintiff was injured?

Answer 84

A defendant can refute an argument for Actual Causation by showing that the plaintiff would have still been injured EVEN IF the act or omission did not occur.
- In an alternative universe in which D acted reasonably, would the injury still have occurred? [Saying that the breach doesn’t matter]

Question 85

When there are two negligent acts that merge to cause the injury, how is the situation analyzed?

Answer 85

Where several causes bring about injury (Merged Causes), 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 (EX: starting two fires that merge). This is the SUBSTANTIAL FACTOR TEST (instead of But-For).
- When multiple D’s actions are substantial factors, then those Ds are jointly and severally liable.

Question 86

When there are two negligent acts and it is unknown which one caused the injury (just one caused the injury), how is the situation analyzed?

Answer 86

The Unascertainable Causes Approach is used when there are two acts, only one of which causes injury, but it is not known which one. The burden of proof shifts to defendants, and each must show that his negligence is not the actual cause.
- Ds are jointly and severally liable unless they can satisfy the shifted burden of proof.

Question 87

What is Proximate Causation in Torts?

Answer 87

A defendant generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by his negligent acts. This is a foreseeability test.
- ASK: was the outcome a foreseeable risk associated with the breach?
- Can think of this one as the Fairness element. Think of factors like: passage of time; geographic distance; prior occurrence (has it happened before?).

Question 88

What are the common Foreseeable Intervening Forces situations (Proximate Cause)?

Answer 88

• Intervening Medical Malpractice (doctor’s malpractice makes things worse and causes additional injuries). D liable for additional injuries.
• Intervening Negligence of Rescuers (good Samaritan hurts P further). D is liable for additional injuries.
• Intervening Protection or Reaction Forces (EX: in reaction to P’s action, others stampede and further injure P). D is liable for additional injuries.
• Subsequent Disease or Accident (P gets a disease b/c of the injury or further injures himself because of the injury that P caused). D is liable for the additional injuries.

Question 89

What is the Eggshell Skull/Plaintiff Doctrine?

Answer 89

In all cases, the defendant takes the plaintiff as they find the plaintiff; meaning, the defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable.

Question 90

What defense(s) are available for negligence cases?

Answer 90

• Comparative Negligence: D shows that P failed to exercise proper care for their own safety. If P was in part negligence, the jury will instruct a percentage of the fault to both parties.

Question 91

What are the types of strict liability situations?

Answer 91

• Animals. (1) Domesticated: No strict liability unless there’s knowledge of the individual animal’s dangerous propensity (however, even if it has vicious propensities, you’re never strictly liable to a trespasser on your land). (2) Wild: Strictly liable if any of these hurt a person.
• Abnormally Dangerous Activities: (1) Activity must be a type that can’t be made reasonably safe through ordinary care and (2) the activity must be uncommon in the area [probably don’t need b/c not common on exam]. COMMON EXAMPLES: explosives/blasting; handling/transporting highly toxic/dangerous materials; nuclear energy/radiation (high dose!).
• Products Liability Claim (most common): (1) The MERCHANT defendant’s (regularly deals in goods of this type) (2) product is DEFECTIVE (manufacturing defect, design defect, or information defect), (3) the product was NOT SUBSTANTIALLY ALTERED since leaving D’s control (defective when D put it in the stream of commerce), and (4) P was making a FORESEEABLE use of the product at the time of the injury (a foreseeable use is NOT the same as the intended or appropriate use).

Question 92

What is the general standard for whether an activity is abnormally dangerous for strict liability purposes? What role does the judge/jury play in this determination?

Answer 92

An activity may be characterized as abnormally dangerous if (1) the activity creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and (2) the activity is not a matter of common usage in the community.
- Whether an activity is abnormally dangerous is a question of law that the court can decide on a motion for directed verdict.

Question 93

What is a manufacturing defect for strict liability purposes?

Answer 93

The product emerges from manufacturing different from others and more dangerous than consumers would expect.
- “departs from its intended design.”

Question 94

What are the common products liability actors to watch for on the exam? Which ones are liable and which ones are not?

Answer 94

Casual sellers (NO), service providers (NO), commercial lessor (YES), and others throughout the distribution chain (YES).

Question 95

What is a design defect for strict liability purposes? How can a plaintiff prove defective design in court?

Answer 95

The risks associated with the product’s design outweigh the utility of the design.
The plaintiff must show that (1) there is an alternative design that would have been SAFER, (2) the alternative design is still PRACTICAL, and (3) the alternative design is ECONOMICALLY FEASIBLE.
- Very likely need an expert witness to do this.

Question 96

What is an information defect for strict liability purposes? How is it analyzed?

Answer 96

Hidden risks without adequate warnings/instructions. The warning must (1) be prominent, (2) be comprehensive (using multiple languages or pictures depending on population you’re marketing to), and (3) where, applicable, provide information about mitigating the risk (EX: wear a mask while using).

Question 97

What affirmative defenses may a defendant raise in strict liability cases?

Answer 97

CLAIM’S FAILURE: P’s failure to establish a prima facie case.
ASSUMPTION OF RISK: Assumption of risk where P knew of the risk and voluntarily encountered it.
- Traditional rule: if P is knowingly encountering a dangerous situation (not should have), recovery is barred (contributory negligence).
- Many states use comparative negligence: the jury assigns percentages based on the responsibilities of the litigants.
MISUSE: An unforeseeable misuse of the product by P.

Question 98

What is Nuisance?

Answer 98

A private nuisance is a SUBSTANTIAL, UNREASONABLE INTERFERENCE with someone’s use and enjoyment of real estate. To be substantial, the interference must be offensive, inconvenient, or annoying to an average person in the community.
- Not substantial interference when it’s merely the result of plaintiff’s hypersensitivity. Also, it’s not a substantial interference if it merely interferes with a specialized use of the land (EX: dog whistles messing with dogs on their land).
- “Coming to the nuisance” (moving in next to it) doesn’t prevent recovery.
- D must be acting intentionally (includes acting with awareness that the interference is occurring, even if it’s not their purpose).
- Might have spite cases or gross inconsideration (EX: always hosting loud parties).

Question 99

What is Vicarious Liability?

Answer 99

Vicarious liability is liability that is derivatively imposed. This means that one person (the active tortfeasor) commits a tortious act against
a third party and another person (the passive tortfeasor) will be liable
to the third party for this act.

Question 100

How does Vicarious Liability work in an employer/employee situation?

Answer 100

Respondeat Superior: An employer can be held liable if the employee was acting within the scope of employment at the time of the accident. An act will be considered to have been within the scope of employment if it was (1) expressly authorized by the employer or (2) of the same general nature as the employee’s job and motivated by a desire to serve the employer.
- Frolic or Detour: An employee making a minor deviation from their employer’s business for their own purposes is still acting within the scope of employment (it’s a mere detour). However, if the deviation in time or geographic area is substantial, the employer is not liable (it’s a frolic).
- Intentional Torts: It is usually held that intentional tortious conduct by employees is not within the scope of employment. Exceptions: (1) The employee is furthering the business of the employer (EX: removing customers from the premises because they are rowdy); (2) Force is authorized in the employment (EX: a bouncer); or (3) Friction is generated by the employment (EX: bill collector).

Question 101

What Vicarious Liability applies in Independent Contractor situations?

Answer 101

In general, the hiring party (the principal) will not be vicariously liable for the tortious acts of an independent contractor (the agent) when the hiring party does not control the manner and method in which the independent contractor performs the job. There are public policy exceptions, however, for example, where a duty is simply nondelegable such as the duty of a business to keep its premises safe for customers.
- If an independent contractor is engaged in inherently dangerous activities, the hiring party will be vicariously liable. Such an activity does not have to be classified as abnormally dangerous such that strict liability applies; it need only be an activity in which there are special dangers to others inherent in or normal to the activity (EX: excavating next to a public sidewalk).

Question 102

What is Joint and Several Liability?

Answer 102

Under the traditional common law rule, when two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable (that is, liable to the plaintiff for the entire damage incurred). If the injury is divisible, each defendant is liable only for the identifiable portion.

Question 103

What is it called when a defendant seeks compensation from other defendants after that defendant has paid the plaintiff?

Answer 103

Contribution.

Question 104

What is indemnification?

Answer 104

Indemnification involves shifting the entire loss between or among tortfeasors. Indemnity is available in the following circumstances: (1) In vicarious liability situations and (2) Under strict products liability for the non-manufacturer.

Question 105

What are the elements of Defamation?

Answer 105

Under modern tort law, the elements are (1) A DEFAMATORY STATEMENT (statement adversely affecting reputation) that SPECIFICALLY IDENTIFIES the plaintiff (any identifying information is sufficient) (2) PUBLISHED (share w/ at least one other person than P) to a THIRD PARTY, (3) FALSITY of the defamatory language, (4) FAULT on the part of the defendant (depends on if it’s a public or private person: awareness or recklessness for public figure and negligence for private figure), and (5) DAMAGE to the plaintiff’s reputation.
- The statement is a factual representation that reflects adversely on P’s character. Opinion is actionable only if it implies underlying facts.

Question 106

Can a plaintiff consent to defamation?

Answer 106

Yes. Consent is a complete defense to a defamation action. Apparent consent may be implied where a reasonable person would infer it from a person’s actions and words (EX: questioning regarding rumors about the questioner).

Question 107

Does a defamatory statement need to be believed to be actionable?

Answer 107

No.

Question 108

What result for a Defamation suit when someone makes a defamatory statement towards an anonymous person in a small vs. a large group?

Answer 108

Referring to an anonymous someone in a small group gives everyone a claim; referring to an anonymous someone in a large group gives no one a claim.

Question 109

What result for a Defamation suit if the plaintiff is dead at the time the statement was made?

Answer 109

P must be alive at the time the statement was made to have a claim. Dead people don’t need their reputations anymore.

Question 110

What result when a defamatory statement is negligently published?

Answer 110

If it is negligently published, the publication element will be satisfied.

Question 111

What will negate the Fault element of Defamation.

Answer 111

A reasonable good faith belief of truth.

Question 112

What level of Fault must a plaintiff show in a Defamation case?

Answer 112

• P is Private Person: Negligence (made the statement without reasonably verifying the truth of the statement). All relevant facts are considered.
• P is a Public Figure: Malice (Knowledge or Reckless Disregard) (D knew that they lied or ignored compelling evidence that the statement was false). A public figure is anyone in the public eye.

Question 113

What presumption(s) regarding damages apply in a defamation suit?

Answer 113

In Defamation suits, damages may be presumed.
- Libel: Defamation embodied in permanent form. Here, damages are presumed (don’t need to be proved).
- Slander: Spoken/Oral defamation.
— Slander per se: Words so clearly defamatory that the ordinary person would understand the injury. Damages are presumed.
— Slander (not per se): No presumption. P must prove economic harm (grounded in work or money) before they can recover for personal harm.

Question 114

What sort of statements are slander per se?

Answer 114

• Business/profession (EX: saying a butcher sells rotten meat)
• Serious crime (EX: “he’s a murderer”)
• Serious sexual misconduct
• Loathsome disease (EX: syphilis)

Question 115

What are the affirmative defenses to Defamation?

Answer 115

• Consent [See Consent rules in Tort cards]
• Privileges (Absolute Privilege: communications between spouses AND officers of government in connection with their official work; Qualified Privilege: Available on a case-by-case basis when there is a public interest in encouraging candor; Common Interest Privilege: Qualified privilege for statements made to colleagues within the same organization)
  — The officers of government privilege extends to lawyers as well (anything in court papers

Question 116

What is required for a Qualified Privilege to extend to a defendant in a Defamation case?

Answer 116

Qualified privilege only applies to statements made in good faith and relevant in scope.

Question 117

What is Appropriation in Torts? What exception(s) apply?

Answer 117

D uses P’s name/image for commercial purposes.
- NEWSWORTHINESS will make this not apply (using their image to advertise their place in the news)
- NOTE: not limited to celebrities.
- NOTE: this tort is to recover emotional damages.

Question 118

What is Intrusion in Torts?

Answer 118

Invasion of P’s seclusion in a way that would be highly offensive to a reasonable person (EX: eavesdropping/peeping; wiretapping; cameras in home).
- NOTE: need to have an expectation of privacy (EX: if out to dinner, it’s not intrusion if someone overhears it).

Question 119

What is False Light in Torts?

Answer 119

The (1) widespread dissemination of (2) a material falsehood about P (3) that would be highly offensive to a reasonable person.
- NOTE: recovering for emotional damages, not economic (as you would in a Defamation claim).
- NOTE: this tort isn’t recognized in every state.

Question 120

What is the Tort of Disclosure (Public Disclosure of Private Facts)? What exception(s) apply?

Answer 120

(1) Widespread dissemination of (2) confidential information about P (must be of a truly confidential fact; EX: if sharing something in one social group, it doesn’t count as confidential if someone says it in another social group) (3) that’s not of legitimate concern to the public (which will be privileged as long as it’s made without malice) and (4) highly offensive to a reasonable person (a reasonable person would object to having it made public; EX: sharing medical information or tax returns).
- NEWSWORTHINESS exception (EX: investigative journalist).

Question 121

What are the affirmative defenses to privacy torts?

Answer 121

• Consent
• Absolute/Qualifies privileges apply to false light and disclosure claims

Question 122

What is Interference with Business Relations? How is it established?

Answer 122

A plaintiff has a cause of action for interference with probable future business relationships for which the plaintiff has a reasonable expectation of financial benefit.
To establish a prima facie case for interference with business relations, the following elements must be proved: (i) existence of a valid contractual relationship between plaintiff and a third party or a valid business expectancy of plaintiff; (ii) defendant’s knowledge of the relationship or expectancy; (iii) intentional interference by defendant that induces a breach or termination of the relationship or expectancy; and (iv) damage to plaintiff.
- An interferer’s conduct may be privileged where it is a proper attempt to obtain business for the interferer, particularly if the interference is only with a prospective business relationship rather than with an existing contract.

Question 123

What effect does a government organization collecting a fee for land use have on their tort liability when their practices harm others?

Answer 123

Where municipal immunity still exists, courts have limited its scope by differentiating between “governmental” and “proprietary” functions of the municipality. If the municipality is performing a function that might as well have been provided by a private corporation, the function may be construed as a proprietary one and no immunity will attach.

Question 124

What nondelegable duty do common carriers have?

Answer 124

Common carriers owe a nondelegable duty to provide a safe vehicle in which to ride.
- The general rule is that a principal will not be liable for tortious acts of his agent if the agent is an independent contractor. However, a major exception to this rule applies when the duty, because of public policy considerations, is nondelegable.

Question 125

At common law, is an automobile owner liable for torts resulting from others driving their automobile?

Answer 125

No. At common law, an automobile owner is not liable for torts committed by another person driving the vehicle.