Torts

Question 1

Intentional infliction of Emotional Distress

Answer 1

Public Figure:
1) D acted intentionally or recklessly
2) D engaged in extreme and outrageous conduct
3) P suffered severe emotional distress
4) D published a false statement of fact with actual malice

Question 2

Affirmative Duty to Act

Answer 2

1) Assumption of Duty - D voluntarily aids or rescues another has duty to use reasonable care when rendering aid or performing rescue
2) Creation of Risk - D conduct creates foreseeable risk of harm or places another in peril has duty to exercise reasonable care to prevent further harm by rendering care or aid
3) By contract - use care when performing contractual obligations
4) By Authority - D has actual ability and authority to control (Parent/child, custodian/custody, employer/employee)
5) Relationship duty to protect, aid or assist P with whom D has unique relationship (parent/child, business/patron, common carrier/passenger, innkeeper/guest, employer/employee)
6) By statute
7) Land Possessor - duty to mitigate risks posed by natural or artificial conditions on land

Question 3

Assumption of the Risk

Answer 3

defense to strict liability claims based on injuries when voluntarily engages knowing its dangerous propensities

Question 4

Extreme and Outrageous Conduct

Answer 4

1) Flagrant indecency
2) exploiting known and special vulnerability
3) abusing authority
4) Repeated harassment

Question 5

Scope of D’s Duty to Care

Answer 5

Cardozo: duty owed only to persons who might be foreseeably harmed as a esult of defendant’s negligence

Andrews (Minority) - duty owed to everyone on earth if anyone might be foreseeably harmed as a result of defendant’s negligence

Question 6

Pure Comparative-Negligence Jurisdiction

Answer 6

Default rule - recovery is reduced by the plaintiff’s percentage of fault as determined by the trier of fact

Question 7

Contributory-Negligence Jurisdiction

Answer 7

plaintiff who fails to use reasonable care for their own safety and thereby contributes to their own injury is barred from recovering damages

Question 8

Modified Comparative Negligence

Answer 8

Reduces recovery based on plaintiff’s percentage of fault but recovery is barred if the plaintiff’s fault exceeds 50%

Question 9

Res ipsa loquitur

Answer 9

Allows the D negligence to be inferred by the fact finder from circumstantial evidence if:
1) accident was of a kind that ordinarily does not occur in the absence of negligence
2)the thing that caused the harm was under the D’s exclusive control AND
3) Harm was not due to the plaintiff’s actions

Question 10

Last Clear Chance Doctrine

Answer 10

in contributroy-negligence jurisdictions, plaintiff may mitigate legal consequence of contributory negligence if D had last clear chance to avoid injuring P but failed to do so

Helpless P: P cannot escape and in peril - D liable if D knew or should have known of P’s peril and harm could have been avoided but for D’s negligence

Inattentive: P in peril from which could escape if paying attention - D liable if had actual knowledge of P’s inattention

Question 11

Intervening Causes

Answer 11

Foreseeable Cause - foreseeable intervening act or force that contribute to plaintiff’s harm; D is liable

Superseding Cause - unforeseeable intervening act or force that breaks chain of causation between D’s tortious conduct and P’s harm - D not liable

Question 12

Actual (factual) Cause

Answer 12

Plaintiff’s harm would not have occurred but for the D’s actions

Question 13

Proximate (legal) Cause

Answer 13

the plaintiff’s harm was a reasonably foreseeable consequence of the defendant’s conduct

Question 14

Defense of Others

Answer 14

(1) Reasonably believes that
(2) circumstances are such that the 3rd party has a privilege of self defense AND
(3) defendant’s action is immediately necessary to protect the 3rd party

Deadly force to defend 3rd party is reasonable
1) P is intentionally inflicting or about to intentionally inflict unprivileged force on 3rd
2) 3rd party is in peril of death, serious bodily harm, or rape by the use
3) D can safely prevent the peril only by the immediate use of deadly force

Question 15

Medical Malpractice

Answer 15

Specialized negligence claim - P must prove that:
1) Physician’s conduct fell below the relevant professional standard of care AND
2) Caused the P physical harm (“but for”)

Question 16

Private Nuisance

Answer 16

when D’s interference with the use and enjoyment of the plaintiff’s property is both:
1) Substantial - offensive, annoying, or intolerable to a normal person in the community AND
2) unreasonable - effectively renders the land unavailable for ordinary use or enjoyment by the possessor and satisfies certain criteria

Question 17

Land Possessors Owe a Duty of Reasonable Care

Answer 17

Invitees - inspect for unknown dangers, make safe or warn, and prevent harm from active operations

Licensees - warn of known latent defects and use reasonable care in active operations

Known or anticipated trespassers - warn of known artificial dangers and use reasonable care in active operations

Unknown or unanticipated trespassers - not duty

Question 18

Joint and several liability

Answer 18

any tortfeasor can be held liable for plaintiff’s total amount of damagers; tortfeasors can sue each other for contribution

Must show that each defendant was negligent

Question 19

Several Liability

Answer 19

Each tortfeasor is liable for portion of damages corresponding their proportionate fault

Question 20

Public Nuisance Claim

Answer 20

Unreasonable intererence with a right common to the general public; requires proof that
1) D interfered with a public right
2) that interference was unreasonable if significantly affected public health, safety, peace or property rights or violated an ordinance, statute, or administrative regulation

1) Did defendant interfere with a public right (health, safety, peace, or property)?
2) If yes, was the interference unreasonable (significant or unlawful)?
3) If yes, did interreference cause plaintiff special harm (different from public)?
Yes liable
4) If no, is plaintiff a public entity or government actor?
Yes liable - no not liable

Question 21

Vicarious Liability and Indemnity

Answer 21

Negligence occurs- Vicarious Liability - Employee’s liability discharged - indemnity allows company to recover from employee

Vicariously liable for tort committed by its employee - if employee’s liability discharged by the employer, the employer can seek indemnity from employee for its loss

Question 22

Trespass to Chattels

Answer 22

when D intentionally interferes with the P’s possession of a chattel through dispossession, use, or intermeddling;

Dispossession - nominal damages

Use or intermeddling plaintiff must prove actual damages through:
1) actual harm to chattel
2) substantial loss of use of the chattel OR
3) bodily harm to P

Question 23

4 types of invasion of privacy

Answer 23

1) Intrusion upon seclusion
2) Appropriation of name or likeness
3) Public disclosure of private facts
4) Publicity in a false light

Question 24

Intrusion upon seclusion

Answer 24

highly offensive and intentional intrusion on plaintiff’s solitude, seclusion, or private affairs

Question 25

Appropriation of name or likeness

Answer 25

Unauthorized use of plaintiff’s name or likeness for personal benefit

Question 26

Public Disclosure of Private Facts

Answer 26

publicity given to highly offensive and private matter concerning plaintiff that is not of legitimate public concern and results in damages

Question 27

Publicity in a false light

Answer 27

publicity given to false information about plaintiff with actual malice that places them in highly offensive and false light and results in damages

Question 28

Misappropriation of the right to publicity

Answer 28

Arises when:
1) D uses the P’s identity without authorization
2) D obtains a benefit from that use AND
3) plaintiff suffers an injury as a result

Question 29

Rescue Doctrine

Answer 29

Rescuers can recover for injuries sustained while attempting to rescue another if that person’s peril was caused by D’s negligence

EXCEPTION: professional rescuers cannot recover for injuries attributable to special dangers of their job

Question 30

Risk-Utility Test

Answer 30

a product is defective by design when:
1) design creates a foreseeable risk of physical harm AND
2) that risk could have been mitigated by a reasonable alternative design

Question 31

Intentional Misrepresentation

Answer 31

P must show that:
1) defendant knowingly or recklessly misrepresented a material fact with the intent to induce the P’s reliance AND
2) P reasonably relied on the misrepresentation and suffered pecuniary loss as a result

Question 32

Vicarious Liability

Answer 32

liability for tortious acts of another includes:
1) respondeat superior - employee’s conduct occured within scope of employment
2) Nondelegable duty - independent contractor’s work involved abnormally or inherently dangerous activity, condition on land open to general public, or activity regulated by law
3) Parent - child committed tort while acting as parent’s agent
4) Business partner - partner’s conduct occurred within scope of business
5) Automobile Owner - family member drove car with permission or any person drove car with permission under owner-liability statute
6) Dram shop and social host - alcohol sold or served at noncommercial setting to visibly intoxicated person or minor

Question 33

Non-Delegable Duty

Answer 33

A person who hires an independent contractor is vicariously liable for certain conduct:
1) abnormally dangerous activities
2) Inherently dangerous activities
3) Duties arising out of a relationship with a specific plaintiff or the public
4) the duty of land occupier to maintain premises in a reasonably safe condition
5) duty of an employer to maintain a safe work environment for employees
6) minority jurisdictions, duty to comply with state safety statutes

Question 34

Defamation

Answer 34

Elements:
1) D’s defamatory language
2) is of or concerning the P
3) is published to a third party who understands its defamatory nature AND
4) it damages the P’s reputation

When a defamatory statement made about a group, the group must be so small that the statement can reasonably be understood to refer to the P as a member of the group, unless there is evidence that the language refers to that particular member

Public Concern: P is constitutionally required to prove fault on part of D; if P is either a public official or figure, must prove actual malice

If 1) defamatory statement relates to a matter of public concern OR 2) P is a public official or public figure, then P must also prove that the defamatory statement is false

Question 35

Negligent Infliction of Emotional Distress

Answer 35

Three types to recover:

1) Zone of Danger - P in the “zone of danger” of threatened physical impact, the threat of physical impact cause emotional distress, and proof of emotional distress
2) Bystander Recovery - can recover for emotional distress if P is closely related to D, was present at scene of injury and personally observed the injury
3) Special Relationship - without threat of physical injury in cases of special relationships - typically mishandling corpse or mistaken reporting of death of a relative

Question 36

Strict Liability

Answer 36

A prima facie case for strict liability:
1) An absolute duty to make the P’s person or property safe
2) actual and proximate causation
3) damages

General Situations:
1) dangerous activity
2) animals
3) Defective or dangerous product

Question 37

Abnormally Dangerous Activities

Answer 37

An activity that:
1) Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised AND
2) the activity is not commonly engaged in

Courts often ask if the gravity of the harm resulting from the activity, the inappropriateness of the place where the activity is being conducted, and the limited value of the activity to the community

Question 38

Private Actors Arrest

Answer 38

Most jurisdiction, privileged to use force to make an arrest in case of a felony if the felony has in fact been committed and the arresting party has reasonable grounds to suspect that the person being arrested committed it

Mistake is not a defense if wrong

Question 39

False Imprisonment

Answer 39

1) D intends to confine or restrain the P within a limited area
2) D’s conduct causes the P confinement, or the D fails to release the P from a confinement despite owing a duty to do so AND
3) P is conscious of the confinement

Question 40

Landlord is Liable to Tenant

Answer 40

1) Common areas such as parking lots, stairwells, lobbies, and hallways
2) as a result of hidden dangers about which the landlord fails to warn the tenant
3) on premises leased for public use
4) as a result of a hazard caused by landlord’s negligent repair OR
5) involving a hazard that the landlord has agreed to repair

Question 41

Defense of Property

Answer 41

1) Intrusion is not privileged
2) D reasonable believes that:

a) P is intruding or imminently will intrude on the D’s property AND
b) intrusion can be prevented or terminated only by the means used

3) D first asks the P to desist and P disregards the request or D reasonably believes that a request will be useless or dangerous or that substantial harm will be done before the request can be made
4) Means used are reasonably proportionate to the value of interest the D is protecting
5) means used are not intended or likely to cause death or serious bodily injury

Question 42

Negligence

Answer 42

Prima facie Case consists of
1) Duty - obligation to protect another against unreasonable risk of injury
2) Breach - failure to meet that obligation
3) Causation (fact and proximate)
4) Damages - harm suffered

Question 43

“Good Samaritan” Statute

Answer 43

protects doctors and other medical personnel when they voluntarily render emergency care. These statues exempt medical professionals form liability for ordinary negligence but not from gross negligence