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

How does a court consider a plaintiff’s hypersensitivity?

Answer 2

Courts ignore the hypersensitivity of plaintiffs.

Question 3

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

Answer 3

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

Question 4

How does transferred intent work in Torts?

Answer 4

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 5

What is Battery in Tort law?

Answer 5

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 6

When is a contact offensive for purposes of Battery?

Answer 6

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

Question 7

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

Answer 7

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

Question 8

What damages are required for a Tort Battery claim?

Answer 8

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

Question 9

What is Assault in Tort law?

Answer 9

An assault occurs when there is (1) an ACT by the defendant CREATING A REASONABLE APPREHENSION (knowledge of / anticipate D’s act) in the plaintiff (2) of an IMMEDIATE BATTERY (harmful or offensive contact to the plaintiff’s person) and (3) intent.
- NOTE: can also be an attempt to commit a battery! (criminal law)

Question 10

When is apprehension reasonable for assault purposes?

Answer 10

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 11

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

Answer 11

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

Question 12

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

Answer 12

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 13

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

Answer 13

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

Question 14

What is False Imprisonment in Tort law?

Answer 14

False Imprisonment occurs when (1) an act or omission on the part of the defendant that CONFINES or restrains the plaintiff, (2) the plaintiff must be confined to a bounded area, and (3) intent.

Question 15

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

Answer 15

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

Question 16

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

Answer 16

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

Question 17

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

Answer 17

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 18

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

Answer 18

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 19

What is Intentional Infliction of Emotional Distress?

Answer 19

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 20

What are the Hallmarks of Outrageousness for IIED purposes?

Answer 20

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 21

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

Answer 21

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 22

What is Trespass to Land in Tort law?

Answer 22

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 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 23

What is Trespass to Chattels?

Answer 23

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.

Question 24

What is Conversion in Tort law?

Answer 24

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 25

What is the recovery in a conversion case?

Answer 25

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 26

May a plaintiff consent to an intentional tort?

Answer 26

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 27

What are the types of consent in tort law?

Answer 27

• 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 28

What are the exceptions to express consent?

Answer 28

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

Question 29

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

Answer 29

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 30

What are the defenses to intentional torts?

Answer 30

• Consent
• Protective Privileges
• Necessity Defenses

Question 31

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

Answer 31

(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 32

What is Shopkeeper’s Privilege?

Answer 32

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 33

What is Necessity? What are the Necessity defenses?

Answer 33

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 34

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

Answer 34

Yes.

Question 35

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

Answer 35

Yes.

Question 36

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

Answer 36

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 37

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

Answer 37

Yes.

Question 38

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

Answer 38

Yes.

Question 39

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

Answer 39

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 40

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

Answer 40

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 41

What are the elements of negligence?

Answer 41

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

Question 42

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

Answer 42

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 43

What is Duty in negligence?

Answer 43

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

Question 44

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

Answer 44

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 45

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

Answer 45

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 46

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

Answer 46

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 47

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

Answer 47

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

Question 48

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

Answer 48

• 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 49

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

Answer 49

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 50

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

Answer 50

(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 51

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

Answer 51

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

Question 52

(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 52

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 53

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

Answer 53

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 54

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

Answer 54

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.
- NOTE: abolished in the majority of states.

Question 55

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

Answer 55

• 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 56

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 56

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

Question 57

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 57

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 58

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

Answer 58

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 59

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

Answer 59

Negligence per se.

Question 60

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

Answer 60

(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 61

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

Answer 61

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

Question 62

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 62

• 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 63

In general, what duties to act affirmatively exist?

Answer 63

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 64

In what circumstances is there an affirmative duty to act?

Answer 64

• 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 65

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

Answer 65

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

Question 66

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

Answer 66

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 67

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

Answer 67

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 68

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

Answer 68

Through a Negligent Infliction of Emotional Distress claim.

Question 69

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

Answer 69

• Near Miss Case
• Bystander Case
• Business Relationship Case

Question 70

How is a Near Miss NIED case analyzed?

Answer 70

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 71

How is a Bystander NIED case analyzed?

Answer 71

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 72

When can a plaintiff recover in Business Relationship NIED cases?

Answer 72

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 73

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

Answer 73

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 74

What is Res Ipsa Loquitur? When is it used?

Answer 74

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 75

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

Answer 75

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 76

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 76

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

Question 77

What is Factual Causation? How is it demonstrated?

Answer 77

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 78

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

Answer 78

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 79

What are Merged Causes in Torts? How is this analyzed?

Answer 79

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 80

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

Answer 80

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 81

What is Proximate Causation in Torts?

Answer 81

A defendant generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by their 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 82

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

Answer 82

• 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 83

What is the Eggshell Skull/Plaintiff Doctrine?

Answer 83

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 84

What defense(s) are available for negligence cases?

Answer 84

• 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 85

What are the types of strict liability situations?

Answer 85

• 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, 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 86

What is a manufacturing defect for strict liability purposes?

Answer 86

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

Question 87

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

Answer 87

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

Question 88

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

Answer 88

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 89

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

Answer 89

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 90

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

Answer 90

• Traditional rule: if P is knowingly encountering a dangerous situation, recovery is barred.
• Many states use comparative negligence: the jury assigns percentages based on the responsibilities of the litigants.

Question 91

What is Nuisance?

Answer 91

Interference with the peaceful use/enjoyment of real estate. P must show that D’s behavior interfered to a substantial or unreasonable degree with their right to use/enjoy the property.
- 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).
- 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).

Question 92

What is Vicarious Liability?

Answer 92

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 93

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

Answer 93

Respondeat Superior: An employer can be held liable if the employee was acting within the scope of employment at the time of the accident.
- 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 94

What Vicarious Liability applies in Independent Contractor situations?

Answer 94

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.

Question 95

What is Joint and Several Liability?

Answer 95

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 96

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

Answer 96

Contribution.

Question 97

What is indemnification?

Answer 97

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 98

What are the elements of Defamation?

Answer 98

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 99

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

Answer 99

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 100

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

Answer 100

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

Question 101

What result when a defamatory statement is not intentionally published?

Answer 101

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

Question 102

What will negate the Fault element of Defamation.

Answer 102

A reasonable good faith belief of truth.

Question 103

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

Answer 103

• 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 104

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

Answer 104

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 105

What sort of statements are slander per se?

Answer 105

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

Question 106

What are the affirmative defenses to Defamation?

Answer 106

• 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 107

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

Answer 107

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

Question 108

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

Answer 108

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 109

What is Intrusion in Torts?

Answer 109

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 110

What is False Light in Torts?

Answer 110

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 111

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

Answer 111

(1) Widespread dissemination of (2) confidential information about P that’s (3) not of legitimate concern to the public and (4) highly offensive to a reasonable person (EX: sharing medical information or tax returns).
- NEWSWORTHINESS exception (EX: investigative journalist).
- NOTE: disclosure 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).

Question 112

What are the affirmative defenses to privacy torts?

Answer 112

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

Question 113

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

Answer 113

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.