Torts

Question 1

What does “intent” mean in intentional torts?

Answer 1

Intent refers to forbidden consequences that are substantially likely to occur. The doctrine of transferred intent applies to assault, battery, false imprisonment, trespass to land, and trespass to chattels.

Note: Self-defense is a valid defense against a claim based on transferred intent.

Question 2

What are the rules for battery?

Answer 2

Battery is the intentional harmful or offensive contact of the plaintiff’s person. Damages are not required.

A battery occurs if the contact is made with something connected with the plaintiff’s person.

The contact must be offensive to a reasonable person.

Question 3

What are the rules for assault?

Answer 3

Assault is (1) an intentional act that places the plaintiff in reasonable apprehension of imminent harmful or offensive contact or (2) an attempted battery. Damages are not required.

The plaintiff must be aware of the threat from the defendant’s act.

Words alone are not enough to establish assault. The words must be coupled with conduct.

Question 4

What are the rules for false imprisonment?

Answer 4

False imprisonment is an intentional act or omission that confines or restrains the plaintiff to a bounded area. Damages are not required.

The plaintiff must be aware of the conduct.

There can be no reasonable means of escape known to the plaintiff.

Shopkeeper’s Privilege Defense: A shopkeeper can detain a suspected shoplifter if (1) there is a reasonable belief as to the theft, (2) the detention is conducted in a reasonable manner, and (3) the detention is for a reasonable duration.

Question 5

What are the rules for intentional infliction of distress?

Answer 5

Intentional infliction emotional distress is an intentional act amounting to extreme and outrageous conduct that causes the plaintiff to suffer severe emotional distress. Recklessness is sufficient to prove intent and actual damages are required.

Conduct is outrageous if (1) the conduct is repetitive (e.g., debt collection), (2) the conduct is committed by a common carrier or innkeeper, or (3) plaintiff is part of a member of a fragile class (e.g., children, elderly persons, pregnant women, and targeting known sensitivities).

Bystander Cases: When the defendant’s conduct is directed at a third person, and the plaintiff suffers severe emotional distress because of it, the plaintiff may recover by showing either the prima facie case elements of emotional distress or that (1) they were present when the injury occurred; (2) the distress resulted in bodily harm or the plaintiff is a close relative of the third person; and (3) the defendant knew these facts.

Question 6

What are the rules for trespass to land?

Answer 6

Tresspass to land is the physical invasion of the plaintff’s real property. Damages are not required.

The physical invasion can occur by a person or object.

The real property includes the space above and below the property up to a reasonable distance.

Question 7

What are the rules for trespass to chattels?

Answer 7

Trespass to chattels is an intentional act of interference with the plaintiff’s right of possession in a chattel. The interference can involve damaging the chattel or dispossessing the owner of the chattel. Damages ARE required.

Question 8

What are the rules for conversion?

Answer 8

Conversion is an intentional act of interference with the plaintiff’s right of possession in a chattel such that the defendant is liable for the chattel’s full value. Remedies may include the fair market value of the chattel at the time of the conversion or repossession.

Question 9

What are the defenses to intentional torts?

Answer 9

Consent: Express or implied (based on custom and usage or the plaintiff’s conduct). A defendant cannot exceed the scope of the consent given. However, consent is invalid if (1) the consent is based on mistake and the defendant knew of and took advantage of the mistake, (2) the consent is induced by fraud and goes to an essential matter, and (3) the consent is based on duress unless the duress is only threats of future action or future economic deprivation.

Self-Defense: When a person reasonably believes that they are being or are about to be attacked, they may use such force as is reasonably necessary to protect against injury. The majority rule is that there is no duty to retreat. The modern trend imposes a duty to retreat before using deadly force if this can be done safely, unless the actor is in their home.

Defense of Others: One may use force to defend another when they reasonably believe that the other person could have used force to defend themselves.

Defense of Property: One may use reasonable force to prevent the commission of a tort against their real or personal property. A request to desist or leave must first be made unless it clearly would be futile or dangerous. The defense does not apply once the tort has been committed; however, one may use force in hot pursuit of another who has tortiously dispossessed the owner of their chattels because the tort is viewed as still in progress if the defendant is in the act of fleeing.

A mistake is not allowed as to whether the entrant has a privilege (for example, necessity) that supersedes the defense of property right, unless the entrant conducts the entry so as to lead the defendant to reasonably believe it is not privileged.

Necessity: A defendant can raise public necessity as a defense if they acted to avert an “imminent public disaster.” A defendant can raise private necessity as a defense when the action was to prevent serious harm to a limited number of people. Under private necessity, the actor must pay for any injury he caused unless the injury resulted in nominal damages.

Question 10

What are the rules for duty?

Answer 10

Ordinary Standard of Care: A defendant owes a duty to all foreseeable plaintiffs within the zone of danger to behave with the same care as a reasonably prudent person under the circumstances. Rescuers and intended beneficiaries of economic transactions are foreseeable plaintiffs. Defendants with superior knowledge or skills and those with relevant physical characteristics are held to different standards of care.

Children: Children are held to the standard of care of a child of like age, intelligence, and experience.

Professionals: A professional is required to possess the knowledge and skill of an AVERAGE member of the profession or occupation in good standing. Doctors are held to a national standard of care and they have a duty to disclose the risks of treatment to enable a patient to give an informed consent.

Unknown Trespassers: No duty.

Known Trespassers: The land possessor has a duty to warn or make safe known highly dangerous and concealed artificial conditions (i.e., man made deathtraps).

Licensees: A licensee is one who enters onto the land with the possessor’s permission for their own purpose or business. This includes social guests. Land possessors owe a duty to warn or make safe concealed dangerous conditions known to the possessor.

Invitees: Invitees enter onto the land in response to an invitation by the possessor of the land for the benefit of the possessor. Land possessors owe a duty to warn or make safe concealed or dangerous conditions known to the possessor or those that could have been discovered by a reasonable inspection.

Statues: A duty of care imposed by a statute applies if (1) the plaintiff is within the class of persons the statute is designed to protect and (2) the statute was designed to prevent the type of harm suffered by the plaintiff. However, violation of a statute may be excused where compliance would cause more danger than violation or where compliance with the statute is impossible.

Affirmative Duty to Act: Defendants do not have a duty to act unless one has placed a party in peril or one has chosen to act. Parents owe a duty to aid or assist their children and common carriers, innkeepers, and shopkeepers owe a duty to aid or assist their patrons.

Emergency Situations: A defendant must act as a reasonably prudent person would under the same emergency conditions.

Question 11

What are the elements of the attractive nuisance doctrine?

Answer 11

(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), (4) the expense of remedying the situation is slight compared with the magnitude of the risk.

Question 12

What are the rules for negligent infliction of emotional distress?

Answer 12

Near Miss Cases: (1) The plaintiff must be within the zone of danger and (2) the plaintiff must suffer physical symptoms from the distress.

Bystander Cases: (1) The plaintiff and the person injured by the defendant must be closely related and (2) the plaintiff was present at the scene of the injury and personally observed or perceived the event.

Special Relationship Between Plaintiff and Defendant: The defendant may be liable for directly causing the plaintiff severe emotional distress when a duty arises from the relationship (typically commercial in nature) between the plaintiff and a defendant, such that the defendant’s negligence has great potential to cause emotional distress. Examples include doctor’[s misdiagnosis of a patient that has a terminal illness and mortuary’s negligent cremation of deceased contrary to family’s instructions.

Question 13

What are the rules for breach?

Answer 13

Breach occurs when the defendant’s conduct falls short of the level required by the applicable standard of care owed to the plaintiff.

Custom or Usage: Deviations from industry custom and usage can show a breach.

Violation of a Statute: Violating a statute is conclusive evidence of a breach (i.e., negligence per se).

Res Ipsa Loquitur: A breach is presumed if (1) the injury-causing accident does not ordinarily occur in the absence of negligence and (2) the negligence is attributable to the defendant (i.e., the cause of the injury is within the exclusive control of the defendant). Establishing res ipsa loquitur means no directed verdict should be granted for either party.

Question 14

What are the rules for factual causation?

Answer 14

But-For Causation: An act or omission is a factual cause of an injury when the injury would not have occurred but-for the act or omission. The defendant can refuse this by showing that the plaintiff would have been injured even if the act or omission did not occur.

Merged Causes: Where multiple causes by multiple defendants merge to bring about the injury, each defendant’s negligent conduct will be the factual cause of the injury if it was a substantial factor in causing the injury. A cause will be a substantial factor in the injury if any one alone would have been sufficient to cause the injury.

Unasertainable Causes: If multiple defendants acted negligently and only one could have caused the plaintiff’s injury but it’s not clear which defendant caused the injury, the burden of proof shifts to the defendant to prove that their negligence was not the factual cause of the plaintiff’s injury.

Question 15

What are the rules for proximate causation?

Answer 15

An act or omission is the proximate cause of an injury when the injury is a foreseeable consequence of the defendant’s breach of his duty of care, meaning the harmful results are the normal incidents of and within the increased risk caused by the defendant’s negligent conduct. Foreseeable intervening forces include medical malpractice, negligence of rescuers, protection or reaction forces to the defendant’s conduct, and disease or accident substantially caused by the original injury. Intervening forces that do not produce foreseeable results break the causal connection between the defendant’s negligent conduct and the plaintiff’s injury.

Question 16

What are the rules for damages?

Answer 16

Eggshell Skull Rule: The defendant is entitled to all damages suffered, even if the extent or severity of the damages was unforeseeable.

Contributory Negligence: If even part of the plaintiff’s injury is attributable to the plaintiff’s negligence, the plaintiff is barred from recovering. However, under the last clear chance doctrine, a plaintiff may recover if the defendant had the last clear chance to avoid the injury-causing incident.

Assumption of Risk: Assumption of risk, whether express or implied, will bar the plaintiff from recovering if the plaintiff (1) knew of the risk and (2) voluntarily proceeded in the face of the risk. Assumption of risk does not apply if there is no available alternative to proceeding in the face of the risk, the situation involves fraud, force, or emergency, and the situation involves common carriers or public utilities.

Pure Comparative Negligence: The plaintiff’s negligence reduces the plaintiff’s recovery rather than barring it completely.

Partial Comparative Negligence: The plaintiff’s negligence only reduces the plaintiff’s recovery if the plaintiff was less negligent than the defendant.

Question 17

What are the rules for strict liability?

Answer 17

Animals: An owner of an animal is not strictly liable for injuries caused by the animal unless the owner knows the animal has dangerous propensities that are not common to the species. An owner of an animal is also strictly liable for ALL injuries caused by wild animals. However, these rules do not apply to trespassers. A trespasser can only recover if he proves the owner was negligent.

Abnormally Dangerous Activities: A defendant is strictly liable for abnormally dangerous activities. These activities (1) create a foreseeable risk of serious harm even when reasonable care is exercised by all actors and (2) are not a matter of common usage in the community. Strict liability only applies to foreseeable plaintiffs. Examples include explosives, the transportation of dangerous chemicals, and anything involving high amounts of radiation or nuclear energy.

Strict Product Liability: The plaintiff must show (1) the defendant is a merchant (i.e., a commercial supplier), (2) the product is defective, (3) the product was not substantially altered since leaving the defendant’s control, and (4) the plaintiff was making a foreseeable use of the product at the time of the injury.

Merchants include commercial lessors and parties in the distribution chain but not casual sellers and sellers of services.

There are three main types of defects: manufacturing, design, and information. Manufacturing defects arise if the product is more dangerous than an ordinary consumer would otherwise expect. Design defects arise if the risks associated with the product outweigh the product benefits. The plaintiff must show there was an alternative design that was safer, practical, and economically feasible. Information defects arise if the product does not contain adequate warnings or instructions as to the risks involved in using the product that may not be apparent to users. The warning or instruction must be prominent, comprehensible, and provide information about mitigating risks.

If the product moved through normal channels of distribution, a court will infer that the product was not altered and that the defect existed when the product left the defendant’s control.

Misuse of the product may be foreseeable.

Physical injury or property damages must be shown.

Disclaimers are ineffective.

Defenses: Plaintiff knew of the danger and their unreasonable conduct was the cause of the harm from the wild animal, abnormally dangerous condition, or defective product (i.e., assumption of risk). Many jurisdictions also apply comparative negligence rules to strict liability. Other defenses include unforeseeable product misuse and adequate warnings.

Question 18

What are the rules for nuisance?

Answer 18

Private Nuisance: Private nuisance is a substantial, unreasonable interference with another private individual’s use or enjoyment of property that the other individual actually possesses or has a right of immediate possession. Substantial interference is interference that is offensive, inconvenient, or annoying to the average person in the community. To establish unreasonable interference, required for nuisances based on intent or negligence, the severity of the inflicted injury must outweigh the utility of the defendant’s conduct.

Public Nuisance: Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community.

Defenses: Conduct of others, contributory negligence (negligence theory only), and coming to the nuisance.

Question 19

What are the rules for vicarious liability?

Answer 19

Employer-Employee: An employer is vicariously liable for tortious acts committed by their employee if the tortious acts occurred within the scope of the employment relationship.

Frolic or Detour: An employee is not acting within the scope of their employment if the employee takes a frolic (i.e., a substantial deviation from the employer’s business for their own purposes). However, an employee is acting within the scope of their employment if the employee takes a detour (i.e., a minor deviation from the employer’s business for their own purposes).

Intentional Torts: Intentional torts committed by employees are not within the scope of their employment unless (1) then employee is furthering the business of the employer, (2) the force is authorized in the employment, or (3) friction is generated by the employment.

Independent Contractors: A hiring party will not be vicariously liable for the tortious acts of an independent contractor when the hiring party does not control the manner and method in which the independent contractor performs the job. However, a business owner can be held liable if an independent contractor is working on the business premises and hurts a customer.

Question 20

What are the rules for joint and several liability?

Answer 20

Under the traditional common law rule, when two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor is jointly and severally liable for the entire injury. If the injury is divisible or the rules of joint and several liability do not apply, each defendant is liable only for the identifiable portion.

A plaintiff may only receive full satisfaction from one of the jointly liable parties. Additionally, releasing one tortfeasor from liability does not discharge other tortfeasors unless it is expressly provided for in the release agreement.

Contribution: If a defendant is fully liable for the entire amount of damages under joint and several liability, the defendant may seek contribution from other defendants to help pay the full amount of damages. Most jurisdictions apportion contribution based on the relative fault of the defendants, but a minority of jurisdictions apportion contribution in equal shares regardless of the degree of fault.

Indemnification: Indemnification shifts the entire loss between or among tortfeasors. It is available in vicarious liability situations and strict products liability situations for the non-manufacturer.

Question 21

What are the rules for defamation?

Answer 21

Defamation involves (1) a defamatory statement that identifies the plaintiff, (2) publication of the defamatory statement to a third party, (3) falsity of the defamatory language, (4) fault on the part of the defendant, and (5) damage to the plaintiff’s reputation.

Element 1A: A defamatory statement is one tending to adversely affect one’s reputation. Statements of opinions are not actionable unless the opinion is based on specific facts and an express allegation of those facts would be defamatory.

Element 1B: The plaintiff must show that a reasonable person would understand that the defamatory statement referred to the plaintiff. If the statement refers to all members of a small group, all members can recover. If the statement refers to some members of a small group, the statement can recover if a reasonable person would view the statement as referring to the plaintiff. If the statement refers to a large group, no members of the group can recover.

Element 2: Publication means the defamatory statement is communicated to at least one third party.

Element 4: In cases brought by public figures and public officials, the plaintiff must show actual malice–that is, knowledge that the statement was false or a reckless disregard for the truth or falsity of the statement. In cases brought by private figures, the plaintiff need only show the defamatory statement involves a matter of public concern (focusing on the content, form, and context of the publication) and that it was made negligently. This allows the plaintiff to recover actual injury damages (e.g., damages to reputation and personal humiliation). However, damages may be presumed and punitive damages are allowed if actual malice is shown.

Element 5: If the statement is libel–that is, defamation embodied in a permanent form–general damages are presumed. If the statement is slander–that is, spoken defamation–the plaintiff must prove special damages (i.e., pecuniary loss). However, special damages need not be shown for statements that (1) adversely reflect on the plaintiff’s business or profession, (2) state the plaintiff committed a serious crime, (3) impute the plaintiff has engaged in serious sexual misconduct, and (4) the plaintiff has a loathsome disease.

Defenses: Consent, truth, and privileges. Absolute privileges–that is, privileges that can never be lost–include communications between spouses and remarks made during judicial proceedings, by legislators during proceedings, and by federal executive officials in compelled broadcasts. Qualified privileges–that is, privileges that can be lost through abuse–arises when there is a public interest in encouraging candor.

Question 22

What are the rules for invasion of privacy?

Answer 22

Appropriation of Plaintiff’s Picture or Name: The unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage.

Intrusion on Plaintiff’s Affairs of Seclusion: An invasion of the plaintiff’s private affairs that would be highly offensive to a reasonable person.

Publication of Facts Placing Plaintiff in False Light: A widespread
dissemination of a material falsehood about a plaintiff that would be highly offensive to a reasonable person. If the matter is of public interest, actual malice must be shown.

Public Disclosure of Private Facts About the Plaintiff: The widespread dissemination of private information about the plaintiff that is not of legitimate concern to the public and is highly offensive to a reasonable person.

Defenses: Consent and privileges.