Torts

Question 1

To establish a prima facie case for any intentional tort, the plaintiff must prove:

Answer 1

• An act by the defendant
• Intent by the defendant
• Causation of the result to the plaintiff from the defendant’s act

Question 2

For intentional torts the act required is ___ by the defendant.

Answer 2

a volitional movement

Question 3

The intent that is relevant for purposes of intentional torts is the intent to ____. The defendant does not need to intend the ____

Answer 3

bring about the forbidden consequences that are the basis of the tort; specific injury that results.

Question 4

The transferred intent doctrine applies when the defendant intends to commit a tort against one person but instead:

Answer 4

• Commits a different tort against that person
• Commits the same tort as intended but against a different person
  OR
• 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

Transferred intent may be invoked only if both the tort intended and the tort that results are one of the following:

Answer 5

• Assault
• Battery
• False imprisonment
• Trespass to land
• Trespass to chattels

Question 6

Who is capable of committing intentional torts

Answer 6

Everyone is “capable” of intent. Incapacity is not a good defense. Thus, young children and persons who are mentally incompetent will be liable for their intentional torts.

Question 7

Causation for intentional torts is satisfied if the defendant’s conduct was ____

Answer 7

a substantial factor in bringing about the
injury.

Note: In most cases, causation will not be at issue when you are analyzing an intentional tort because it is usually obvious that the defendant’s conduct was a substantial factor in causing the harm.

Question 8

The key testable elements for battery are:

Answer 8

• Harmful or offensive contact
• Contact must be with the plaintiff’s person
  + Intent/causation as usual

Question 9

Contact is harmful if it ____.

Contact is offensive if it ____.

Answer 9

causes actual injury, pain, or disfigurement

would be considered offensive to a reasonable person (hyper sensitivity is ignored)

Question 10

Contact is considered offensive only if it hasn’t been ____. However, consent will be
implied for the ____

Answer 10

permitted or consented to; ordinary contacts of everyday life (for example, minor bumping on a crowded bus).

Question 11

Contact for battry covers both ___ contact

Answer 11

direct (for example, striking the plaintiff) or indirect (for example, setting a trap for the plaintiff to fall into).

Question 12

Plaintiff’s person includes ____

Answer 12

anything connected to the plaintiff (for example, clothing or a purse).

Question 13

For battery the plaintiff can recover nominal damages even if ____. The plaintiff may recover punitive damages for ____.

Answer 13

actual damages aren’t proved; malicious conduct

Question 14

The key testable elements for assault are:

Answer 14

• Act by the defendant creating a reasonable apprehension in the plaintiff
• Of an immediate battery (harmful or offensive contact to the plaintiff’s person)
  + Intent/Causation

Question 15

For assault the apprehension of harmful or offensive contact must be ____. Courts generally will not protect a plaintiff against ____.

Answer 15

reasonable; exaggerated fears of contact

Question 16

___ is not required for there to be an assult

Answer 16

Fear

Apprehension shouldn’t be confused with fear or intimidation (for example, a weakling can cause a bully to apprehend offensive contact for purposes of assault).

Question 17

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

Answer 17

apparent ability

Ex: If gun is not loaded but pl. doesn’t know that = that can still be assault

Question 18

Effect of words on creating a reasonable apprehension of an immediate battery in the pl.

Answer 18

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 (for example, the defendant shakes their fist but states that they are not going to strike the plaintiff).

Question 19

For assault the plaintiff must be apprehensive that they are about to become the victim of an ____ battery.

Answer 19

immediate

Question 20

For an assault claim the plaintiff can recover ____ even if actual damages are not proved. Malicious conduct may permit recovery of ____.

Answer 20

nominal damages; punitive damages

Question 21

The key testable elements for false imprisonment are:

Answer 21

• An act or omission on the part of the defendant that confines or restrains the plaintiff
• The plaintiff must be confined to a bounded area
  + Intent/Causation

Question 22

Sufficient acts of restraint for false imprisonment include:

Answer 22

• Physical barriers
• Physical force directed against the plaintiff, immediate family, or personal property (for example, confiscating the plaintiff’s purse)
• Direct threats of force
• Indirect or implied threats of force
• Failure to release the plaintiff when under a legal duty to do so (for example, a taxi driver refusing to let a customer out)
• Invalid use of legal authority (for example, false arrest)

Question 23

Insufficient acts of restraint for false imprisonment include:

Answer 23

• Moral pressure
• Future threats

Question 24

How long does confinement need to be for false imprisonment claim

Answer 24

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

Question 25

For false imprisonment the plaintiff must ___ of the confinement or be ____ by it.

Answer 25

know; harmed

Question 26

What Is a Bounded Area for false imprisonment?

Answer 26

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

Question 27

Damage rule for false imprisonment

Answer 27

The plaintiff can recover nominal damages even if actual damages are not proved. Punitive damages may be recovered if the defendant acted maliciously.

Question 28

The key testable elements for intentional infliction of emotional distress are:

Answer 28

• An act by the defendant amounting to extreme and outrageous conduct
• The plaintiff must suffer severe emotional distress
  + Itent/Causation

Question 29

Extreme and Outrageous Conduct is conduct that ____

Answer 29

transcends all bounds of decency

Question 30

Conduct that is not normally outrageous may become it for IIED if:

Answer 30

• It is continuous in nature
• It is committed by a certain type of defendant (common carriers or innkeepers may be liable even for mere “gross insults”) OR
• It is directed toward a certain type of plaintiff (children, elderly
  persons, someone who is pregnant, supersensitive adults if the
  sensitivities are known to defendant)

Question 31

For IIED and unlike for other intentional torts, ____ as to the effect of the defendant’s conduct will satisfy the intent requirement.

Answer 31

recklessness

Question 32

Damage requirement for IIED

Answer 32

Actual damages (severe emotional distress), not nominal damages, are required. Proof of physical injury generally isn’t required. The more outrageous the conduct, the less proof of damages is
required.

Question 33

____ is the only intentional tort to the person that requires damages.

Answer 33

Intentional infliction of emotional distress

Question 34

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:

Answer 34

(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 35

Intentional infliction of emotional distress is a ____ tort position.

Answer 35

fallback

Question 36

The intentional torts to the person include:

Answer 36

• Battery
• Assault
• False imprisonment
• IIED

Question 37

The intentional torts to property include:

Answer 37

• Trespass to land
• Trespass to chattels
• Conversion

Question 38

The key testable elements for trespass to land are:

Answer 38

• Physical invasion
• Of the plaintiff’s real property
  + Intent/Causation

Question 39

For trespass to land the invasion may be by a ____. If intangible matter (for example, vibrations or odor) enters, the plaintiff may have a case for ____, but not for trespass since those things are not considered physical.

Answer 39

person or object (for example, throwing a baseball onto the plaintiff’s land is a trespass)

nuisance

Question 40

For trespass to land real property includes not only the surface, but also _____

Answer 40

airspace and subterranean space for a reasonable distance.

Question 41

The trespass claim belongs to the person with the ____, and not necessarily the owner.

Answer 41

right to possess the property

–> if you enter a rented apartment without permission, the tenant has a claim against you, not the landlord

Question 42

Intent for trespass to land

Answer 42

The defendant need intend only to enter onto that particular piece of land. The defendant need not know that the land belonged to another.

Question 43

Damage requirement for trespass to land

Answer 43

The plaintiff can recover without showing actual injury to the land.

Question 44

The key testable element for trespass to chattels is:

Answer 44

Act by the defendant that interferes with the plaintiff’s right of possession in a chattel

Question 45

Types of interference for trespass to chattels

Answer 45

The interference may either be an intermeddling (that is, directly damaging the chattel) or a dispossession (that is, depriving the plaintiff of their lawful right of possession of the chattel).

Question 46

Intent required for trespass to chattels

Answer 46

Intent to trespass isn’t required; intent to do the act of interference is all that is needed. The defendant’s mistaken belief that they own the chattel is no defense.

Question 47

Damage requirement for trespass to chattels

Answer 47

Actual damages—not necessarily to the chattel, but at least to a possessory right—are required.

Question 48

The key testable elements for conversion are:

Answer 48

• Act by the defendant that interferes with the plaintiff’s right of possession in a chattel
• Interference is serious enough in nature or consequences to warrant that the defendant pay the chattel’s full value

Question 49

Intent required for conversion

Answer 49

As with trespass to chattels, mistake as to ownership is no defense; the only intent required is the intent to do the act that interferes with the plaintiff’s right of possession.

Question 50

The longer the withholding period and the more extensive the use, the more likely it is to be ____. A less serious interference is ____.

Answer 50

conversion; trespass to chattels

Question 51

Subject Matter of Conversion

Answer 51

Only tangible personal property and intangibles that have been reduced to physical form (for example, a promissory note) are subject to conversion.

Question 52

Remedies for trespass to c hattels

Answer 52

The plaintiff may recover damages (fair market value at the time of conversion) or possession (replevin).

Question 53

Possible defenses to intentional torts:

Answer 53

• Consent
• Protective privileges
• Necessity

Question 54

The plaintiff’s consent to the defendant’s conduct is a defense, but the majority view is that one cannot consent to ____.

Answer 54

a criminal act

Question 55

Any consent fact pattern raises two questions:

Answer 55

• Was there a valid consent?
• Did the defendant stay within the boundaries of the consent?

Question 56

Individuals without capacity are deemed ____, for example, drunken persons, and very young children. Persons with limited capacity, such as older children and persons with mild intellectual disabilities, can consent, but only to ____

Answer 56

incapable of consent; things within the scope of their understanding.

Question 57

Everyone (even a young child) has the capacity
to ____, but not everyone has the capacity to ____.

Answer 57

commit a tort; consent to a tort

Question 58

The defendant is not liable if the plaintiff expressly consents to the defendant’s conduct. Exceptions:

Answer 58

(1) mistake will undo express consent if the defendant knew of and took advantage of the mistake;
(2) consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter; and
(3) consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation.

Question 59

Mistake will undo express consent if ____

Answer 59

the defendant knew of and took advantage of the mistake;

Question 60

Consent induced by fraud will be invalidated if _____

Answer 60

it goes to an essential matter, but not a collateral matter

Question 61

Consent obtained by duress will be invalidated unless the duress is ____

Answer 61

only threats of future action or future economic deprivation.

Question 62

Apparent consent is that which ____, for example, normal contacts inherent in body-contact sports, ordinary incidental contact, etc.

Answer 62

a reasonable person would infer from custom and usage or the plaintiff’s conduct

Question 63

Consent implied by law arises when ____

Answer 63

action is necessary to save a person’s life or some other important interest in person or property.

Question 64

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

Answer 64

exceeds the scope of consent

Question 65

Protective privileges include:

Answer 65

• Self-defense
• Defense of others
• Defense of property
• Reentry onto land
• Recapture of chattels

Question 66

When a question involves the defense of self, others, or property, ask the following three questions:

Answer 66

• Is the privilege available?
• Is a mistake permissible as to whether the tort being defended against (battery, trespass, etc.) is actually being committed?
• Was a proper amount of force used?

Question 67

Protective privileges only apply for ___

Answer 67

preventing the commission of a tort.

Question 68

Self-Defense Elements

Answer 68

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.

Question 69

For self-defense the majority rule is that there is ____ to retreat. The modern trend imposes a duty to retreat before ___ if this can be done safely, unless the actor is in their home.

Answer 69

no duty; using deadly force

Question 70

Self-defense is not available to the ____ aggressor unless ____

Answer 70

initial

the other party responds to the aggressor’s nondeadly force by using deadly
force.

Question 71

Self-defense may extend to ____ injuries (caused while the actor was defending themselves).

Answer 71

third-party

An actor might be liable to a third person if they deliberately injured the third person in trying to protect themselves.

Question 72

Is mistake allowed for self-defense

Answer 72

A reasonable mistake as to the existence of the danger is allowed.

Question 73

How Much Force May Be Used in self-defense?

Answer 73

One may use only that force that reasonably appears to be necessary to prevent the harm (including deadly force). If more force than is
reasonably necessary is used, the defense is lost.

Question 74

Deadly force is not proportional to threats to ___

Answer 74

property (but check for reasonable belief about safety to self)

Question 75

When Is Defense of others available?

Answer 75

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

Question 76

Is mistake allowed for defense of others

Answer 76

A reasonable mistake as to whether the other person is being attacked or has a right to defend themselves is permitted.

Question 77

How Much Force May Be Used for defense of others?

Answer 77

The defender may use as much force as they could have used in self-defense if they were the one threatened with the injury.

Question 78

When Is the Defense of property Available?

Answer 78

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.

Question 79

The defense of property does not apply once the tort has ____; however, one may use force in ____ 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.

Answer 79

been committed; hot pursuit

Question 80

Defense of property is not available against one
with a ____.

Answer 80

privilege

–> whenever an actor has a privilege to enter onto the land of another because of necessity,
recapture of chattels, etc., that privilege will supersede the privilege of the land possessor to defend their property.

Question 81

Is mistake allowed for defense of property?

Answer 81

A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required.

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 (such as by refusing to say what the necessity is).

Question 82

Before force may be used in defense of property, the pl must:

Answer 82

request to desist or leave must first be made unless it clearly would be futile or dangerous.

Question 83

For defense of property How Much Force May Be Used?

Answer 83

Reasonable force may be used. However, one may not use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm.

–> The same principle makes it impermissible to set deadly mechanical devices or traps (such as spring guns) to protect property.

Question 84

A shopkeeper has a privilege to detain a suspected shoplifter for ____. For the privilege to apply, the following conditions must be satisfied:

Answer 84

investigation

• There must be a reasonable belief as to the fact of theft
• The detention must be conducted in a reasonable manner and only nondeadly force can be used
• The detention must be only for a reasonable period of time and only for the purpose of making an investigation

Question 85

At common law, one could use force to reenter land only when an intruder came into possession tortiously, such as by a trespass. Under modern law, there are summary procedures such as ejectment for recovering possession of real property. Hence, resort to ____ is no longer allowed.

Answer 85

self-help

Question 86

The basic rule is the same as that for reentry of land at common law: When another’s possession began lawfully (for example, a conditional sale), one may use only ____ to recover the chattel.

Reasonable force may be used to recapture a chattel only when ____, for
example, by theft.

Answer 86

peaceful means; in hot pursuit of one who has obtained possession wrongfully

Question 87

Necessity defense

Answer 87

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.

Question 88

Types of necessity:

Answer 88

Public and private

Question 89

Public necessity defense

Answer 89

A defendant can raise public necessity as a defense if they acted to avert an “imminent public disaster.”

Question 90

Private necessity defense

Answer 90

Private necessity can be 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 they cause (unless the act was to benefit the property owner).

Question 91

Necessity is a defense only to ____ torts.

Answer 91

property

Question 92

The elements of a prima facie case of negligence are:

Answer 92

• A duty on the part of the defendant to conform to a specific standard of conduct for protection of the plaintiff against an unreasonable risk of injury
• A breach of that duty by the defendant
• The breach is the actual and proximate cause of the plaintiff’s injury
• Damages

Question 93

When confronted with a negligence question, you should always ask:

Answer 93

• To whom do you owe a duty?
• What is the applicable standard of care?

Question 94

A duty of care is owed to all ____. If the defendant’s conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff.

Answer 94

foreseeable plaintiffs

Question 95

Test for foreseeable plaintiffs

Answer 95

“zone of interests”

Question 96

A rescuer is a foreseeable plaintiff when ____

Answer 96

the defendant negligently put themselves or a third person in peril (danger invites rescue).

Question 97

Firefighters and police officers are barred by the “firefighter’s rule” from recovering for ____

Answer 97

injuries caused by the inherent risks of their jobs.

Question 98

A third party for whose ____ a legal or business transaction was made (for example, a beneficiary of a will) may be a foreseeable plaintiff.

Answer 98

economic benefit

Question 99

All persons owe a duty to behave with the same care as a hypothetical ____ in the conduct of their activities to avoid injuring foreseeable victims.

Answer 99

reasonably prudent person

Question 100

The reasonably prudent person standard is an ____ standard, measured against what the
average person would do. A defendant’s mental ____ are not taken into account.

Answer 100

objective; deficiencies and inexperience (in other words, low intelligence is no excuse).

Question 101

Exceptions to reasonably prudent standard being objective:

Answer 101

• Superior Skill or Knowledge
• Physical Characteristics Where Relevant

Question 102

While the reasonably prudent person standard sets a minimum level of care, a defendant who has knowledge or experience superior to that of an average person is required to exercise ____

Answer 102

that experience.

Question 103

The “reasonably prudent person” is considered to have the same physical characteristics as the defendant if ____ (but remember, one is expected to know one’s physical abilities and to exercise the care of a person with ____—for example, a blind person should act as a reasonably prudent person who cannot see and not attempt to, for instance, drive a car).

Answer 103

those physical characteristics are relevant to the claim; such knowledge

Question 105

SPECIAL NEGLIGENCE DUTIES BASED ON TYPE OF DEFENDANT include:

Answer 105

• Children
• Professionals
• Possessors of land

Question 106

Children are held to the standard of ___

Answer 106

a child of like age, intelligence, and experience (rhis is a subjective test)

Question 107

A child under ___ is usually without the capacity to be negligent. Children engaged in potentially dangerous ____ may be required to conform to an “adult” standard of care.

Answer 107

five; adult activities

Question 108

A professional is required to possess the ____.
For doctors, most courts apply a ____ standard of care to evaluate their conduct.

Answer 108

knowledge and skill of an average member of the profession or occupation in good standing (empirical standard)

national

Question 109

Under the traditional rule followed in many states, the duty owed a plaintiff on the premises for dangerous conditions on the land
depends on the plaintiff’s status as ____

Answer 109

unknown trespasser, known trespasser, licensee, or invitee.

Question 110

Duty owed to unknown trespassers

Answer 110

No duty is owed to an undiscovered trespasser.

Question 111

As to discovered or anticipated trespassers, the land possessor must warn of or make safe any conditions that are:

Answer 111

• Highly dangerous (involving risk of death or serious bodily harm)
• Artificial
• Concealed
• Known to the land possessor in advance

Question 112

A licensee is one who enters onto the land with the possessor’s permission for ____

Answer 112

their own purpose or business, rather than for the possessor’s benefit.

Question 113

As to licensees, the land possessor has a duty to warn of or make safe hazardous conditions that are:

Answer 113

• Concealed
• Known to the land possessor in advance

Question 114

For invitees the land possessor must exercise reasonable care in the conduct of “____on the property. The possessor has no duty to____.

Answer 114

active operations; inspect or repair

Question 115

Invitees enter onto the land in response to an invitation by the possessor of the land (meaning they enter for a purpose connected with the ____ or enter as members of the public for a purpose for which the land is ____).

Answer 115

business of the land possessor; held open to the public

Question 116

An invitee will lose invitee status if ____

Answer 116

they exceed the scope of the invitation.

Question 117

The landowner or occupier owes a duty to invitees regarding hazardous conditions that are:

Answer 117

• Concealed
• Known to the land possessor in advance or could have been discovered by a reasonable inspection

Question 118

Attractive Nuisance Doctrine

Answer 118

Most courts impose on a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous artificial conditions on their property.

Question 119

To establish the doctrine of attractive nuisance’s applicability, the plaintiff must show:

Answer 119

• A dangerous condition on the land that the owner is or should be aware of
• The owner knows or should know that children might trespass on the land
• The condition is likely to cause injury (it is dangerous because of the child’s inability to appreciate the risk)
• The expense of remedying the situation is slight compared with the magnitude of the risk

Question 120

For liability to attach, the requirements above must be shown. The child does not have to be ____ by the dangerous condition, nor is the attraction alone enough for ____

Answer 120

attracted onto the land; liability.

Question 121

A landowner who permits the general public to use their land for recreational purposes without charging a fee is ___ for injuries suffered by a recreational user, unless ____

Answer 121

not liable

the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

Question 122

There generally is no duty to protect someone ___ the premises from natural conditions on the premises; however, there is a duty for unreasonably dangerous artificial conditions or structures ____. Also, one must carry on activities on the premises so as to avoid ____ to others off the premises.

Answer 122

off; abutting adjacent land

unreasonable risk of harm

Question 123

The lessee has a general duty to ____. The lessor must warn of ___

Answer 123

maintain the premises; existing defects of which they are aware or have reason to know, and which they know the lessee is not likely to discover on a reasonable inspection.

Question 124

If the lessor covenants to repair, they are
liable for _____. If the lessor volunteers to repair and does so ____, they are liable.

Answer 124

unreasonably dangerous conditions; negligently

Question 125

Duties of Vendor of Realty

Answer 125

A vendor must disclose to the vendee
concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and which the vendor knows the vendee is not likely to discover on a reasonable inspection.

Question 126

A clearly stated specific duty imposed by a statute providing for ____ may replace the more general common law duty of due care if:

Answer 126

criminal penalties (including fines for regulatory offenses and ordinances, such as for speeding)

• The plaintiff is within the protected class
• The statute was designed to prevent the type of harm suffered by the plaintiff

Question 127

Exceptions to negligence per se:

Answer 127

Violation of some statutes may be excused where compliance would cause more danger than violation OR where compliance would be beyond the defendant’s control

Question 128

Effect of compliance with statutory standard of care

Answer 128

Even though violation of the applicable
statute may be negligence, compliance with the statute will not necessarily establish due care.

Question 129

Effect of Violation of statutory standard of care

Answer 129

Under the majority view, an unexcused statutory violation is negligence
per se; in other words, it establishes the first two requirements in the prima facie case—a conclusive presumption of duty and breach of duty.

Question 130

Affirmative duty to act - general rule

Answer 130

Generally, one does not have a legal duty to act. There is no duty to rescue.

Question 131

Exception to duty to act rule:

Answer 131

• Special Relationship Between Parties
• Peril due to own conduct
• Assumption of duty by acting

Question 132

A special relationship between the parties (for example, parent-child) may create a duty to act. Similarly, ____ owe duties of reasonable care to aid or assist their patrons. In addition, places
of public accommodation have a duty to _____

Answer 132

common carriers, innkeepers, shopkeepers, and others that gather the public for profit

prevent injury to guests by third persons.

Question 133

One may assume a duty to act by ___

Answer 133

acting (for example, once the
defendant undertakes to aid someone, they must do so with reasonable
care).

Question 134

One has a duty to assist someone they have negligently or innocently placed in ____

Answer 134

peril.

Question 135

Good Samaritan statutes

Answer 135

Exempt doctors, nurses, etc., from liability for ordinary, but not gross, negligence.

Question 136

Duty to Prevent Harm from Third Persons - General Rule

Answer 136

Generally, there is no duty to prevent a third person from injuring another.

Question 137

Duty to Prevent Harm from Third Persons - Exceptions

Answer 137

An affirmative duty may be imposed, however, if one has the actual ability and authority to control a person’s actions, and knows or should know the person is likely to commit acts that would require exercise of this control.

Question 138

Duty: Automobile Driver to Guest

Answer 138

A guest in an automobile is owed a duty of ordinary care.

In the few guest statute states, one is liable to nonpaying passengers only for reckless tortious conduct.

Question 139

In a bailment relationship, the bailor transfers to the bailee possession of the chattel but not ___

Answer 139

title (for example, bailor loans their
car to bailee)

Question 140

The bailee’s standard of care depends on who benefits from the bailment:

Answer 140

(1) for a sole benefit of the bailor bailment, there is a low standard of care;
(2) for a sole benefit of the bailee bailment, there is a high standard of care; and
(3) for a mutual benefit bailment (typically a bailment for hire), there is the ordinary care standard.

Note: The modern trend applies a duty of ordinary care under the circumstances, whereby the type of bailment is just one factor taken into account.

Question 141

For a sole benefit of the bailee bailment, the bailor must ___. For a bailment for hire, the bailor must ___

Answer 141

inform the bailee of known, dangerous defects in the chattel; inform the bailee of chattel defects of which they are or should be aware.

Question 142

A defendant must act as a reasonably prudent person would under the same emergency conditions. The emergency is not to be considered, however, if ___

Answer 142

it is of the defendant’s own making.

Question 143

Actions for infliction of emotional distress are not the only means of recovering damages
for emotional distress. If physical injury has been caused by commission of a tort, the plaintiff can ____ for emotional distress as a “parasitic” element of their physical injury damages, without the need to consider the elements of the emotional distress torts.

Answer 143

“tack on” damages (pain and suffering damages)

Question 144

Types of NIED cases:

Answer 144

1. Near miss cases
2. Bystander cases
3. Business relationship cases

Question 145

Near miss cases of NIED the plaintiff usually must satisfy two requirements to prevail:

Answer 145

• The plaintiff must be within the “zone of danger”
• The plaintiff must suffer physical symptoms from the distress

Question 146

For NIED the plaintiff will be considered to be within the zone of danger of the defendant’s negligent acts when the plaintiff is _____

Answer 146

sufficiently close to the defendant such that they are subject to a high risk of a physical impact.

Question 147

In a near miss case, most courts require that the emotional distress caused by defendant’s conduct manifest itself in ___

Answer 147

physical symptoms (minority of states have dropped this requirement)

Question 148

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:

Answer 148

• The plaintiff and the person injured by the defendant are closely related (spouse, parent, minor child)
• The plaintiff was present at the scene of the injury and personally observed or perceived the event
  + Most states drop the requirement of physical symptoms in this situation.

Question 149

The defendant may be liable for directly causing the plaintiff severe emotional distress when a duty arises from the relationship (typically
____ in nature) between the plaintiff and a defendant, such that the defendant’s negligence has ____

Answer 149

commercial; great potential to cause emotional distress

Note: Most states drop the requirement of physical symptoms in this situation as well.

Question 150

Two common examples that meet the criteria for there being a special relationship between pl/def for NIED

Answer 150

patient/medical laboratory (false positive due to negligence); customer/funeral parlor (negligent cremation against families wishes, loss body/remains)

Question 151

The plaintiff may use one of the following theories to show proof of the breach:

Answer 151

• Custom or usage
• Violation of statute
• Res ipsa loquitor

Question 151

Whether the duty of care is breached in an individual case is a question for ____

Answer 151

the trier of fact

Question 152

When the standard of care is “reasonable prudence,” evidence of the ____ of others may be used to establish how a reasonable person should have behaved under the circumstance. However, this evidence is ____ on the question of whether certain conduct amounted to negligence

Answer 152

custom or usage; not conclusive

Question 153

RES IPSA LOQUITUR - basic idea

Answer 153

In some cases, the very occurrence of an event may tend to establish a breach of duty.

Question 154

The doctrine of res ipsa loquitur requires the plaintiff to show that:

Answer 154

• The accident causing the injury is a type that would not normally occur unless someone was negligent
• The negligence is probably attributable to the defendant (meaning this type of accident ordinarily happens because of the negligence of someone in the defendant’s position)
  –> This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant.

Question 155

Effect of Res Ipsa Loquitur

Answer 155

Where res ipsa loquitur is established, the plaintiff has made a prima facie case and no directed verdict may be given for the defendant.
- The plaintiff can still lose, however, if the inference of negligence is rejected by the trier of fact.

Question 156

Re: causation for liability to attach, the plaintiff must show both ____

Answer 156

factual cause (actual cause) and proximate cause

Question 157

An act or omission is a factual cause of an injury when the injury would not have occurred____ the act or omission.

Answer 157

“but for”

Question 158

The “but for” test applies where several acts (each insufficient to cause the injury
alone) ____ to cause the injury. A defendant can refute this by showing that ____

Answer 158

combine; the plaintiff would have still been injured “even if” the act or omission did not occur.

Question 159

Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, the defendant’s conduct is the cause in fact if ____

Answer 159

it was a substantial factor in causing the injury

Question 160

The UNASCERTAINABLE CAUSE APPROACH applies when there are two acts, only one of which causes injury, but ____. The burden of proof shifts to ____, and each must show that his negligence is not the actual cause.

Answer 160

it is not known which one; defendants

Question 161

Under the merged causes approach, ___ parties caused the harm. Under the unascertainable causes approach, although both parties acted negligently, only ___ caused the harm.

Answer 161

both; one

Question 162

“Eggshell-skull” plaintiff rule.

Answer 162

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 163

The doctrine of proximate causation is a ____ and deals with liability or non-liability for unforeseeable or unusual consequences of one’s acts.

Answer 163

limitation of liability

Question 164

Proximate cause - general rule

Answer 164

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!

Question 165

The defendant is liable when their negligence caused a ____ from an intervening force or created a ____ that an intervening force would harm the plaintiff.

Answer 165

foreseeable reaction; foreseeable risk

Question 166

The following intervening forces that are normal responses or reactions to the situation created by the defendant’s negligent act are almost always foreseeable:

Answer 166

• Medical malpractice
• Negligence of rescuers
• Protection or reaction forces to the defendant’s conduct, including efforts to protect person or property
• Disease or accident substantially caused by the original injury

Question 167

Intervening forces that are not just a natural response or reaction to the situation created by the defendant’s conduct may be foreseeable
if ____. These intervening forces include:

Answer 167

the defendant’s negligence increased the risk of harm from these forces.

(1) negligent acts of third persons,
(2) crimes and intentional torts of third persons, and
(3) acts of God.

Question 168

Intervening forces that produce unforeseeable results (results not within the increased risk created by the defendant’s negligence) are
generally deemed unforeseeable and ___

Answer 168

superseding (Superseding forces break the causal connection between the defendant’s initial negligent act and the plaintiff’s ultimate injury, thus relieving the defendant of liability)

Question 169

Damages for personal injury claims

Answer 169

• The plaintiff is to be compensated for all their damages (past, present, and prospective), both economic damages (such as medical expenses) and noneconomic damages (such as pain and
  suffering).
• A plaintiff suffering physical injury also may recover damages for any resulting emotional distress.

Question 170

Damages for property damage claims

Answer 170

The measure of damage is the reasonable cost of repair or, if the property is totally or nearly destroyed, its fair market value at the time of the accident.

Question 171

Emotional distress damages generally cannot be recovered for ___ harm to property.

Answer 171

negligent

Ex: Under this last stated rule, a person cannot recover for emotional distress if another party
negligently injures or kills their pet.

Question 172

Punitive damages generally are not available in ___ cases.

However, a plaintiff may recover punitive damages if defendant’s conduct is ____

Answer 172

negligence

“wanton and willful,” reckless, or malicious.

Question 173

Nonrecoverable items include:

Answer 173

(1) interest from the date of damage in a personal injury action (sometimes called “pre-judgment interest”), and
(2) attorneys’ fees.

Question 174

As in all cases, the plaintiff has a duty to take reasonable steps to ____ damages (for example, seek appropriate treatment).

Answer 174

mitigate

Question 175

Damages are not reduced just because the plaintiff received ____

Answer 175

benefits from other sources (for example, health insurance).

Question 176

The standard of care for contributory negligence is ____

Answer 176

the same as for ordinary negligence

Question 177

Contributory negligence is a defense to negligence proved by the defendant’s violation of an applicable statute unless ____

Answer 177

the statute was designed to protect this class of plaintiffs from their incapacity and lack of judgment

Question 178

Contributory negligence is not a defense to ___ misconduct or ____ tortious conduct.

Answer 178

wanton and willful; intentional

Question 179

____ negligence completely barred the plaintiff’s right to recovery at common law. However, almost all jurisdictions now favor a ____ negligence system

Answer 179

Contributory; comparative

Question 180

Last Clear Chance

Answer 180

An Exception to Contributory Negligence: permits a plaintiff to recover despite their contributory negligence. Under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence. (doesn’t apply in comparative negligence jurisdictions)

Question 181

Last clear chance rule: In many states, if the plaintiff is in _____ the defendant will be liable if they knew or should have known of the plaintiff’s predicament.

Answer 181

“helpless peril,”

Question 182

Last clear chance rule: In ____situations , the defendant must actually have known of the plaintiff’s predicament

Answer 182

“inattentive peril” (that is, where the plaintiff could have extricated themselves if attentive)

Question 183

For the last clear chance doctrine to apply, the defendant must have been able, but failed, to _____. If the defendant’s only negligence occurred earlier, the doctrine will not apply.

Answer 183

avoid harming the plaintiff at the time of the accident

Question 184

As a general rule, the contributory negligence of a third party will be imputed to a plaintiff (and bar the plaintiff’s claim) only when ____

Answer 184

the relationship between the third party and the plaintiff is such that a court could find the plaintiff vicariously liable for the third party’s
negligence.
–> Negligence is imputed in employer-employee, partner, and joint venturer relationships. Negligence is not imputed between spouses, parent and child, and automobile owner and driver.

Question 185

The plaintiff may be denied recovery if they assumed the risk of any damage caused by the defendant’s act. The plaintiff must have:

Answer 185

• Known of the risk and
• Voluntarily proceeded in the face of the risk

Question 186

Implied Assumption of Risk

Answer 186

Knowledge may be implied where the risk is one that an average person would clearly appreciate.

Question 187

Exceptions to implied assumption of the risl

Answer 187

• The plaintiff may not be said to have assumed the risk where there is no available alternative to proceeding in the face of the risk or in situations involving fraud, force, or an emergency.
• Also, common carriers and public utilities may not limit their liability by disclaimer, and members of a class protected by statute will not be deemed to have assumed any risk.

Question 188

Assumption of the risk may be either”

Answer 188

express or implied

Question 189

Assumption of risk is not a defense to ____ torts, but it is a defense to ____ misconduct.

Answer 189

intentional; wanton and willful

Question 190

In comparative negligence states, the plaintiff’s contributory negligence is not a ___

Answer 190

complete bar to recovery.

Question 191

In a comparative negligence jurisdiction there
are no rules governing the assignment of fault; the numbers are ____

Answer 191

left to the discretion of the jury.

Question 192

Types of comparative negligence regimes:

Answer 192

1. Partial comparative negligence: bars the plaintiff’s recovery if their negligence was more serious than the defendant’s negligence (or in some states at least as serious as the defendant’s).
   –> If more than one defendant has contributed to the plaintiff’s injury, the plaintiff’s negligence
   will be compared with the total negligence of all the defendants combined.
2. Pure comparative negligence: allows recovery no matter how great plaintiff’s negligence was.

Question 193

On the MBE, assume that ____ comparative negligence applies unless the question states otherwise.

Answer 193

pure

Question 194

Assumption of the risk in comparative negligence jurisdctions

Answer 194

• Express assumption of risk is a complete defense.
• Implied assumption
  of risk is analyzed as either: (1) a limitation on the duty owed to the plaintiff; or, more commonly, (meaning the defendant does not owe a duty to protect the plaintiff against known risks such as being hit by a foul ball at a baseball game);
  (2) contributory negligence (meaning, the plaintiff unreasonably encountered a known risk, thereby reducing or barring their damages under the state’s comparative negligence rules).

Question 195

Wanton and Willful Conduct in a comparative negligence jurisdiction

Answer 195

• The plaintiff’s negligence will be taken into account in most states even though the defendant’s conduct was “wanton and willful” or
  “reckless.”
• However, the plaintiff’s negligence is still no defense to intentional tortious conduct by the defendant.

Question 196

Three categories of strict liability

Answer 196

1. Liability for animals
2. Abnormally dangerous activities
3. Injuries caused by defective products (gets complex and somewhat negligence-like)

Question 197

An owner is not strictly liable for injuries caused by domestic animals (including farm animals) unless ____

Answer 197

they have knowledge of that particular animal’s dangerous propensities that are not common to the species (first bite rule)

Question 198

Injury caused by the ____ characteristics of domestic animals (for example, bulls or honeybees) does not create strict liability.

Answer 198

normally dangerous

Question 199

In regards to animals don’t forget to consider that a landowner may be liable on intentional tort grounds for injuries inflicted by ____

Answer 199

vicious watchdogs.

Question 200

Liability for Trespassing Animals

Answer 200

An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals.

Question 201

Strict Liability for animals and Trespassers

Answer 201

Strict liability will generally not be imposed in favor of trespassers. To recover for their injuries from a wild animal (or abnormally dangerous domestic animal) a trespasser must prove the owner’s negligence.

Question 202

Courts generally impose two requirements for finding an activity to be abnormally dangerous:

Answer 202

• The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors
• The activity is not a matter of common usage in the community

Question 203

Common examples of abnormally dangerous activities include ____

Answer 203

blasting or manufacturing explosives, storing or transporting dangerous chemicals or biological materials, and anything involving radiation or nuclear energy.

Question 204

Limitations on SL from abnormally dangerous activities

Answer 204

• The defendant’s liability extends only to foreseeable plaintiffs
• The harm must result from the kind of danger to be anticipated from the dangerous activity (or animal) including harm caused by fleeing from the perceived danger.

Question 205

Strict liability for abnormally dangerous activities does not apply when the injury is caused by something ____

Answer 205

other than the dangerous aspect of the activity (for example, a dynamite truck suddenly blows a tire and hits a pedestrian but does not explode).

Question 206

The exercise of reasonable care will ____ the defendant of liability in a strict liability situation.

Answer 206

not relieve

Question 207

Theories of liability for products liability that a plaintiff may use:

Answer 207

• Intent
• Negligence
• Implied warranties of merchantability and fitness for a particular purpose
• Representation theories (express warranty and misrepresentation)
• Strict liability

Question 208

To find liability under a strict liability theory, the plaintiff must show:

Answer 208

• The defendant is a merchant (in other words, a commercial supplier of the product)
• The product is defective
• The product was not substantially altered since leaving the defendant’s control
• The plaintiff was making a foreseeable use of the product at the time of the injury

Question 209

Any ____ can be held liable as a merchant under product SL.

Answer 209

commercial supplier

Question 210

____ sellers will not be held strictly liable for product injuries.

Answer 210

Casual

Question 211

Strict products liability applies only to ____. Even when a product is provided ____, there is no strict liability.

Answer 211

products

incident to a service (for example, blood during an operation) –> The plaintiff may, however, sue in negligence.

Question 212

Most states include commercial _____. In other words, those who ____ rather than sell products also can be held strictly liable

Answer 212

lessors; rent

Question 213

Commercial suppliers include manufacturers, wholesalers, and retailers. ____ is not required—users, consumers, and bystanders can sue.

Answer 213

Privity

–> Remember that any foreseeable plaintiff, including a bystander, can sue any commercial supplier in the chain of distribution regardless of the absence of a contractual relationship between them.

Question 214

Types of product defects

Answer 214

• Manufacturing Defects
• Design Defects
• Information Defects

Question 215

Manufacturing Defects

Answer 215

If a product emerges from manufacturing different from and more dangerous than the products that were made properly, it has a manufacturing defect.

Question 216

Pl. showing for Manufacturing Defects

Answer 216

The defendant will be liable if the plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect (the defendant must anticipate reasonable misuse)

Question 217

Design Defects

Answer 217

When all products of a line are the same but have dangerous propensities, they may be found to have a design defect.

Question 218

Manufacturers will not be held liable for some dangerous products (for example, knives) if ____

Answer 218

the danger is apparent and there is no safer way to make the product.

Question 219

Pl. showing for Design Defects

Answer 219

The plaintiff usually must show that the defendant could have made the product safer, without serious impact on the product’s utility or price (the “feasible alternative” approach).

Question 220

A product’s noncompliance with government safety standards establishes that ____, while compliance with safety standards (including labeling requirements) is evidence—but ____—that the product is not defective.

Answer 220

it is defective; not conclusive

Question 221

Information Defects

Answer 221

A product may be defective as a result of the manufacturer’s failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent to users.

Question 222

For prescription drugs and medical devices, warnings given to ____ will usually suffice in lieu of warnings to the patient.

Answer 222

“learned intermediaries” (for example, the prescribing physician)

Question 223

The plaintiff must show that the product has not been significantly altered since it left the defendant’s control. If the product moved
through normal channels of distribution, it will be inferred that ____

Answer 223

the product was not altered and that the defect existed when the product left the defendant’s control.

Question 224

The plaintiff must have been making a ____ use of the product at the time of the injury.

Answer 224

foreseeable (A defendant will not be held liable for dangers not foreseeable at the time of marketing)

Question 225

Remember a “foreseeable” use does not mean an ____ or ___ use.

Answer 225

“intended”; an “appropriate”
–> Many products are commonly misused in ways that could be considered foreseeable.

Question 226

Nature of Damages Recoverable for product SL

Answer 226

Physical injury or property damage must be shown. Recovery will be denied if the sole claim is for economic loss.

Question 227

Disclaimers are ____ in strict liability cases if personal injury or property damages occur.

Answer 227

irrelevant

Question 228

Negligence in a products case is proved in ____

Answer 228

Negligence in a products case is proved the same as in a “standard” negligence case.
-> As is the case in that context, the plaintiff may invoke res ipsa loquitur if the defect is something that would not usually occur without the manufacturer’s negligence

Question 229

It is very difficult to hold intermediaries
(such as retailers and wholesalers) liable for negligence because they can usually satisfy their duty through _____. In addition, an intermediary’s negligent failure to discover a defect does not supersede the original manufacturer’s negligence ____

Answer 229

a cursory inspection; unless the intermediary’s conduct exceeds ordinary foreseeable negligence.

Question 230

Who can sue under negligent product liability action

Answer 230

Privity with the defendant is no longer required, so any foreseeable plaintiff can sue.

Question 231

Nature of Damages Recoverable - negligent product liability action

Answer 231

Physical injury or property damage must be shown. (Recovery will be denied if the sole claim is for economic loss.)

Question 232

Negligent product liability action - effect of disclaimers

Answer 232

As with strict liability, disclaimers are irrelevant in cases based on negligence if personal injury or property damages occur.

Question 233

There are two warranties implied in every sale of goods that can serve as the basis for a suit by a buyer against a seller:

Answer 233

• Merchantability
• Fitness for a particular purpose

Question 234

Implied warranty of Merchantability, which refers to whether the goods are of average
acceptable quality and are generally fit for the ordinary purpose for which the goods are used. Goods that are likely to injure users even when ____ are quite obviously in breach of this warranty and will subject the seller(s) to liability.

Answer 234

handled properly

Question 235

Who Can Sue? for the two implied warranties in product sales

Answer 235

Most courts no longer require vertical privity. Most states adopted a narrow version of the horizontal privity requirement = This means the buyer, family, household, and guests can sue for personal injuries. These warranties also generally apply to a lease of goods.

Question 236

What Constitutes Breach of the implied warranties in product sales:

Answer 236

If the product fails to live up to either of the above standards, the warranty is breached and the defendant will be liable. The plaintiff does not have to prove any fault on the part of defendant.

Question 237

Damages recoverable under implied warranty of merchantability or fitness for a particular purpose?

Answer 237

Personal injury and property damages, and purely economic loss (unlike SL or negligence theories), are recoverable.

Question 238

Effect of disclaimers under implied warranty of merchantability or fitness for a particular purpose?

Answer 238

Disclaimers are generally rejected in personal injury cases but upheld for economic loss.

Question 239

A defendant may be liable when a product does not live up to some affirmative representation. The two representation theories are:

Answer 239

• Express warranty
• Misrepresentation of fact

Question 240

Express Warranty

Answer 240

Any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty. An express warranty may also be made in a lease of goods.

Question 241

Who Can Sue? - representation theories of product liability

Answer 241

Any consumer, user, or bystander can sue. If a buyer sues, the warranty must have been “part of the basis of the bargain.” If the plaintiff is not in privity (for example, a bystander), they
need not have relied on the representation as long as someone did.

Question 242

Breach under representation theories of product liability

Answer 242

Fault need not be shown to establish breach. Plaintiff need only show that the product did not live up to its warranty.

Question 243

Effect of disclaimers - representation theories of product liability

Answer 243

A disclaimer will be effective only in the unlikely event that it is consistent with the warranty.

Question 244

A seller will be liable for misrepresentations of facts concerning a product where:

Answer 244

• The statement was of a material fact concerning quality or uses of goods (mere puffery insufficient)
• The seller intended to induce reliance by the buyer in a particular transaction

Question 245

Liability for misrepresentation of fact is usually based on ____ but may also arise for
intentional or negligent misrepresentations.

Answer 245

strict liability

Question 246

For misrepresentation of fact theory of product liability justifiable reliance is required (in other words, the representation was a substantial factor in inducing the purchase). Reliance
need not be the ____.

Answer 246

victim’s (it may be a prior purchaser’s) = Privity is irrelevant.

Question 247

For misrepresentation of fact theory of product liability assumption of risk is not a defense if the plaintiff is ____

Answer 247

entitled to rely on the representation.

Question 248

Contributory negligence defense to SL:

Answer 248

• Contributory negligence is no defense if the plaintiff has failed to realize the danger or guard against it.
• It is a defense if the plaintiff knew of the danger and their unreasonable conduct was the very cause of the harm from the wild animal or abnormally dangerous activity or defective product.

Question 249

Assumption of the risk is ____ defense to strict liability.

Answer 249

a good

Question 250

Comparative negligence defense to SL:

Answer 250

Many comparative negligence states apply their comparative negligence rules to strict liability cases.

Question 251

A nuisance is ____ by tortious conduct.

Answer 251

an invasion of property rights

Question 252

There are two types of nuisance:

Answer 252

private and public.

Question 253

Private nuisance is ____

Answer 253

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.

Question 254

Substantial interference is interference that is ____

Answer 254

offensive, inconvenient, or annoying to the average person in the community.

Question 255

It is not substantial interference (and thus nuisance) if it is merely the result of ____

Answer 255

the plaintiff’s hypersensitivity or specialized use of their own property.

Question 256

To establish unreasonable interference, required for nuisances based on intent or negligence, the ____

Answer 256

severity of the inflicted injury must outweigh the utility of the defendant’s conduct
-> In balancing these respective interests, courts take into account that every person is entitled to use their own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courses of conduct open to the defendant.

Question 257

In a trespass, there is an interference with the landowner’s exclusive possession by ____; in a private nuisance, there is an interference with ____.

Answer 257

a physical invasion; use or enjoyment

Question 258

Public nuisance is an act that ____

Answer 258

unreasonably interferes with the health, safety, or property rights of the community

Question 259

Recovery by a private party is available for a public nuisance only if the private party _____

Answer 259

suffered unique damage not suffered by the
public at large.

Question 260

Remedies for nuisance

Answer 260

• Damages: The plaintiff usually will be awarded damages.
• Injunctive Relief: If the legal remedy of damages is unavailable or inadequate (for example, the nuisance will cause irreparable injury), injunctive relief will be awarded.
• Abatement by Self-Help (with rules)

Question 261

In considering injunctive relief for a nuisance, the court will consider the relative
hardships. However, hardships will not be balanced if ____

Answer 261

the defendant’s conduct was willful.

Question 262

In the case of a private nuisance, self-help abatement is available after ____. Only ___ force may be used.

Answer 262

notice to the defendant and their refusal to act; necessary

Question 263

In public nuisance cases, only a ____ or a private party who has ____ can seek an injunction or abatement.

Answer 263

public authority; suffered some unique damage

Question 264

____ for “nuisance activity” (for example, a zoning ordinance) is not an absolute defense but is persuasive.

Answer 264

Legislative authority

Question 265

No one actor is liable for all damage caused by ____ of their acts and others.

Answer 265

concurrence

Ex: Ten steel mills are polluting a stream. Each steel mill is responsible only for the pollution it causes.

Question 266

Contributory negligence generally is no defense to nuisance unless _____

Answer 266

the plaintiff’s case rests on a negligence theory.

Question 267

One may ____ and, thereafter, pursue an action. It is generally not a bar to the plaintiff’s action unless the plaintiff “came to the nuisance” for the ____

Answer 267

“come to a nuisance” (purchasing land next to an already existing nuisance)

sole purpose of bringing a harassing lawsuit.

Question 268

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

Answer 268

derivatively

active; passive

Question 269

The basic situations that you should note for bar examination purposes where vicarious liability MAY be imposed:

Answer 269

• Employer-Employee
• Independent Contractor Situations
• Partners and Joint Venturers
• Automobile Owner for Driver
• Bailor for Bailee
• Parent for Child
• Tavernkeepers

Question 270

An employer will be vicariously liable for tortious acts committed by their employee if (“doctrine
of respondeat superior.”):

Answer 270

the tortious acts occur within the scope of the
employment relationship

Question 271

Frolic vs. Detour

Answer 271

An employee making a minor deviation from their employer’s business for their own purposes is still acting within the scope of employment = mere frolic

If the deviation in time or geographic area is substantial,
the employer is not liable = detour!

Question 272

It is usually held that ____ tortious conduct by employees is not within the scope of employment. Exceptions to this:

Answer 272

intentional

• The employee is furthering the business of the employer, for example, removing customers from the premises because they are rowdy
• Force is authorized in the employment, for example, a bouncer
• Friction is generated by the employment, for example, bill collector

Question 273

Employers may be liable for their own negligence by ____

Answer 273

negligently selecting or supervising their employees

Question 274

General Rule - vicarious liability for independent contractors

Answer 274

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.

Question 275

Exceptions to Independent Contractor general rule

Answer 275

Where a duty is simply nondelegable such as the duty of a business to keep its premises safe for customers.

Question 276

The employer may be liable for their ____ in selecting or supervising the independent contractor

Answer 276

own negligence

Question 277

Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in ____

Answer 277

the scope and course of the affairs of the partnership or joint venture.

Question 278

The general rule is that an automobile owner is not vicariously liable for the tortious conduct of ____.

Answer 278

another person driving their automobile
-> In some jurisdictions, courts have developed exceptions to this rule to hold an automobile owner liable under specific circumstances.

Question 279

Family Car Doctrine

Answer 279

In many states, the owner is liable for tortious conduct of immediate family or household members who are driving with the owner’s express or implied permission.

Question 280

A number of states have now gone further by imposing liability on the owner for damage caused by anyone driving with the owner’s consent (minority rule!). However, under a federal statute, rental car companies are not vicariously liable for _____

Answer 280

the negligent accidents of their customers even if they do business in a “permissive use” state.

Question 281

An owner may be liable for their own negligence in entrusting the car to ___. Some states have also imposed liability on the owner if _____ at the time of the accident, on the theory that they could have prevented the negligent driving, and hence were negligent in not doing so.

Answer 281

a driver; they were present in the car

Question 282

The car owner will be liable if the driver is acting as the ____, for instance using the car to perform an errand for the owner.

Answer 282

owner’s agent

Question 283

Under the general rule, the bailor is not vicariously liable for the tortious conduct of ____. As above, the bailor may be liable for their own negligence in ____

Answer 283

their bailee; entrusting the bailed object.

Question 284

A parent is not vicariously liable for the tortious conduct of their child at ____. Note, however, that most states, ____, make parents liable for the ____ torts of their minor children up to a certain dollar amount (for example, $10,000).

Answer 284

common law; by statute; willful and intentional

Question 285

Courts may impose vicarious liability if the child committed a tort while ____

Answer 285

acting as the agent for the parents.

Question 286

The parent may be held liable for their own negligence in ____, for example, use a dangerous object without proper instruction. Furthermore, if the parent is apprised of
the child’s conduct on past occasions showing ____, they may be liable for not using due care in exercising control to mitigate such conduct, for example, by allowing the child to play with other children that they have a history of attacking.

Answer 286

allowing the child to do something; a tendency to injure another’s person or property

Question 287

Tavernkeepers vicarious liability - CL rules

Answer 287

No liability was imposed on vendors of intoxicating beverages for injuries resulting from the patron’s intoxication, whether the injuries were sustained by the patron or by a third person as a result of the patron’s conduct.

Question 288

Tavernkeepers vicarious liability - Modern law

Answer 288

• Many states, in order to avoid this common law rule, have enacted Dramshop Acts. Such acts usually create a cause of action in favor of any third person injured by the intoxicated patron.
• Several courts have imposed liability on tavernkeepers even in the absence of a Dramshop Act. This liability is based on ordinary negligence principles (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liability.

Question 289

Under the traditional common law rule, when two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be ____. If the injury is divisible, each defendant is liable ___

Answer 289

jointly and severally liable (that is, liable to the plaintiff for the entire damage incurred)

only for the identifiable portion.

Question 290

When two or more defendants act in concert and injure the plaintiff, each is jointly and severally liable for the entire injury. This is so even if _____

Answer 290

the injury is divisible.

Question 291

Many states have abolished joint liability in cases based on fault either (in these cases, liability will be proportional to the defendant’s fault):

Answer 291

(1) for those defendants judged to be less at fault than the plaintiff, or
(2) for all defendants regarding noneconomic damages.

Question 292

Recovery of full payment is a “____.” Only ___ is allowed.

Answer 292

satisfaction; one

Question 293

Until there is satisfaction, however, one may proceed against ____

Answer 293

all jointly liable parties.

Question 294

In most states, a release of one tortfeasor does not ____ unless it is ____ for in the release agreement.

Answer 294

discharge other tortfeasors; expressly provided

Question 295

____ are doctrines that determine how joint tortfeasors allocate between them the damages they must pay to a successful plaintiff.

Answer 295

Contribution and indemnity
–> Keep in mind that neither of these doctrines affects how much the plaintiff receives. Rather, they deal with claims by a defendant against other joint tortfeasors to determine how much of the total award each of them ultimately must pay.

Question 296

The rule of contribution allows ___

Answer 296

a defendant who pays more than their share of damages under joint and several liability to have a claim against other jointly liable parties for the excess; in other words, it apportions responsibility among those at fault.

Question 297

Methods of Apportionment

Answer 297

Comparative Contribution (majority): contribution is imposed in proportion to the relative fault of the
various defendants.
Equal Shares (minority): apportionment is in equal shares regardless of degrees of fault.

Question 298

The contribution defendant must be ____ to the plaintiff. If the contribution defendant has a defense that would bar liability (such as intra-family tort immunity), they are ___ for contribution.

Answer 298

originally liable; not liable

Question 299

Indemnification ____

Answer 299

involves shifting the entire loss between or among tortfeasors.

Question 300

Contribution is not allowed among ____

Answer 300

intentional tortfeasors.

Question 301

Indemnity is available in the following circumstances:

Answer 301

• In vicarious liability situations
• Under strict products liability for the non-manufacturer

Question 302

To keep contribution and indemnity separate in your
mind, recall that, for contribution to apply, generally both
defendants must have a ____ of culpability
for the tort; on the other hand, indemnity usually applies when the paying defendant is ____ than the nonpaying defendant or is liable only vicariously because of their relationship with the nonpaying defendant.

Answer 302

measurable degree; much less responsible

Question 303

LOSS OF CONSORTIUM: In any torts case where the victim is married, the spouse is granted an ____

Answer 303

individual claim against all the original def’s (derivate of the original claim = same defenses/arguments can be made)

Question 304

LOSS OF CONSORTIUM: Between Spouses

Answer 304

Either spouse may bring an action for indirect interference with consortium and services caused by the defendant’s intentional or negligent tortious conduct against the other spouse.

Question 305

LOSS OF CONSORTIUM: Parent-child

Answer 305

A parent may maintain an action for loss of a child’s services and consortium as a result of the defendant’s tortious conduct, whether intentional or negligent. A child, however, has no action in most states against one who tortiously injures their parent.

Question 306

Survival of Tort Actions

Answer 306

Survival acts allow one’s cause of action to survive the death of one or more of the parties.
- The acts apply to actions involving torts to property and torts resulting in personal injury.
- However, torts invading intangible personal interests (for example, defamation, invasion of right of privacy, malicious prosecution) expire upon the victim’s death.

Question 307

Wrongful death acts grant recovery for pecuniary injury resulting to ____. Recovery is allowed only to the extent
that ____.

Answer 307

the spouse and next of kin; the deceased could have recovered in an action had they lived
-> Hence, the decedent’s contributory negligence reduces the wrongful death recovery in comparative negligence states. Similarly, a potential beneficiary’s contributory negligence reduces their share of the recovery in comparative negligence states.

Question 308

A decedent’s ____ have no claim against the amount awarded in a wrongful death based suit.

Answer 308

creditors

Question 309

Under the traditional view, one member of a family unit could not sue another in tort for personal injury. Today, most states have outright abolished ___ immunity.

Answer 309

spousal

Question 310

A slight majority have also abolished ____ immunity (but generally do not allow children to sue merely for ____).

Answer 310

parent-child; negligent supervision

Question 311

Those that retain parent-child immunity do
not apply it in:

Answer 311

(1) cases alleging intentional tortious conduct, or
(2) automobile accident cases to the extent of insurance coverage.

Question 312

In varying degrees, federal, state, and municipal tort immunity has been eliminated. Where it survives, immunity attaches to ____, not proprietary, functions.

Answer 312

governmental

Question 313

Under the Federal Tort Claims Act, the United States has waived immunity for tortious acts. However, immunity will still attach for:

Answer 313

(1) assault,
(2) battery,
(3) false imprisonment,
(4) false arrest,
(5)
malicious prosecution,
(6) abuse of process,
(7) libel and slander,
(8) misrepresentation and deceit, and
(9) interference with contract
rights.
+ Immunity is also not waived for acts that are characterized as “discretionary” (those involving considerations of political or economic policy, usually made by senior officials); acts termed “ministerial” (those performed at the operational level of government) are not immune from liability.

Question 314

Most states have substantially waived their immunity to the ____;

Answer 314

same extent as the federal government = hence, immunity is retained for discretionary acts and for legislative and judicial decisionmaking.

Question 315

About ____ states have abolished municipal immunity to the same extent as for the state government.

Answer 315

half of the

Question 316

Where municipal immunity has been abolished, the “public duty” rule provides that a duty owed to the public at large is ____

Answer 316

not owed to any particular citizen absent a special relationship between the governmental body and the citizen.
–> Thus a city will not be liable to one whose house burns if its fire department negligently fails to respond to an alarm, because the provision of fire protection services is a public duty.

Question 317

Where municipal immunity still exists, contrast “____” functions (functions that could only be performed adequately by the government) and “proprietary”
functions (functions that might as well have been provided by a private corporation). Courts limit application of sovereign immunity by ____

Answer 317

not granting it for proprietary functions.

Question 318

The majority of jurisdictions have eliminated ____ immunity.

Answer 318

charitable

Question 319

The elements of defamation are:

Answer 319

• A defamatory statement that specifically identifies the plaintiff
• Published to a third party
• Falsity of the defamatory language
• Fault on the part of the defendant
• Damage to the plaintiff’s reputation

Question 320

A defamatory statement is ____.

Answer 320

one tending to adversely affect one’s reputation

Question 321

A statement of opinion is actionable only if _____. ___ is insufficient.

Answer 321

it appears to be based on specific facts, and an express allegation of those facts would be defamatory

Name-calling

Question 322

If the statement is not defamatory on its face, the plaintiff may plead additional facts as ____ to establish defamatory meaning by ____

Answer 322

“inducement”; “innuendo.”

Question 323

Any ___ person may be defamed.

Answer 323

living, Defamation of a deceased person is not actionable.

Question 324

In a limited sense, a corporation, unincorporated association, or partnership ___ defamed

Answer 324

may be (for example, by remarks as to its financial condition, honesty, integrity, etc.).

Question 325

For defamation the plaintiff must establish that a reasonable reader, listener, or viewer would understand that _____

Answer 325

the defamatory statement referred to the plaintiff

Question 326

If the statement does not refer to the plaintiff on its face, ____ may be offered to establish that the statement refers to the plaintiff. This is known as pleading ____

Answer 326

extrinsic evidence; “colloquium.”

Question 327

Group defamation rules

Answer 327

• If the defamatory statement refers to all members of a small group, each member may establish that the statement specifically identifies them by alleging that they are a group member (in other words, every member of that small group wins!).
• If the statement only refers to some members of a small group, the plaintiff can recover if a reasonable person would view the statement as referring to the plaintiff.
• If the statement is about a large group, no member can prove that the statement specifically identifies them (in that case, no one wins!).

Question 328

Publication for defamation means

Answer 328

communication of the defamation to a third person
who understands it.

Question 329

For defamation publication can be made either ___. It is the intent to ____, not the intent to ____, that is the requisite intent.

Answer 329

intentionally or negligently

publish; defame

Question 330

Each repetition is a separate ___

Answer 330

publication

Question 331

However, for magazines, newspapers, etc., most states have adopted a ____ rule under which all copies are treated as one publication.

Answer 331

“single publication”

Question 332

An exam favorite is the situation where a defamatory statement about the plaintiff is made only to the plaintiff.
As a general rule, in this situation there is ____

Answer 332

no publication
and thus no defamation.

Question 333

Who May Be Liable for defamation?

Answer 333

Primary publishers (for example, newspapers, TV stations, etc.) = liable to the same extent as the author or speaker.

One who repeats a defamation = liable on the same general basis as the primary publisher (even if she states the source or makes it clear that she does not believe the defamation).

One selling papers or playing audio files = secondary publisher and is liable only if he knows or should know of
the defamatory content.

An Internet service provider = not treated as a
publisher when a user of its service posts defamatory content.

Question 334

Under traditional common law, the plaintiff did not have to prove that the statement was false. Rather the defendant was obliged to prove truth as a defense. Many states have altered that rule, however, and now require the plaintiff to _____

Answer 334

prove falsity as part of the case-in-chief.

Question 335

If you see a true statement on the exam, consider whether the plaintiff may have a cause of action for ____

Answer 335

intentional infliction of emotional distress or invasion of right to privacy (unless the plaintiff is a public figure or a matter of public concern is involved).

Question 336

For defamation a majority of states require a showing of ___ on the part of the defendant

Answer 336

fault

Question 337

Under the New York Times v. Sullivan rule, ____ must be proved in defamation cases brought by public officials and public figures.

Answer 337

actual malice

Question 338

What Constitutes a Public Figure?

Answer 338

A person becomes a “public figure” by achieving pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy.

Question 339

Actual malice (as defined by New York Times v. Sullivan) is:

Answer 339

• Knowledge that the statement was false OR
• Reckless disregard as to whether it was false

–> This is a subjective test. The defendant’s spite or ill will is not enough to constitute malice. Deliberately altering a quotation may constitute malice if the alteration causes a material change in the meaning conveyed by the quotation.

Question 340

When a private person is the plaintiff, only
____ regarding the falsity must be proved if the statement involves a matter of “public concern.” If the statement is not a matter of public concern, constitutional restrictions do ____

Answer 340

negligence; not apply (but note that many states require a showing of negligence as a matter of state law).

Question 341

In a defamation claim against a private person if the defendant is negligent, only ____ damages are recoverable. However, if actual malice is found, damages may be , and ____ damages allowed.

Answer 341

“actual injury”

presumed; punitive

Question 342

What Constitutes Actual Injury? [for negligence based defamation]

Answer 342

Actual injury is not limited to economic damages. It may include damages for impairment to reputation and personal humiliation as long as the plaintiff presents evidence of such damages (in other words, no presumed damages).

Question 343

What Is a Matter of Public Concern?

Answer 343

To determine whether the defamatory statement involves a matter of public concern or private concern, the courts will look at the content, form, and context of the publication.

Question 344

Note that the status of the plaintiff (public figure or private person) is relevant only for ____

Answer 344

the degree of fault required.

Question 345

The type of damages the plaintiff must prove depends on the type of defamation (libel or slander) involved:

Answer 345

• Damages generally are presumed under the law of libel and slander per se
• Everything else: the plaintiff must prove that they suffered special damages—that is, they must have suffered some pecuniary loss in order to recover anything. But once the plaintiff has proved special damages, they may recover general damages as well.

Question 346

Libel (+examples)

Answer 346

Libel is a defamation that is embodied in permanent form.
- It is often a written or printed publication of defamatory language.
- Defamation in
radio and television programs is treated by most courts today as libel.

Question 347

Slander

Answer 347

Slander is spoken defamation.

Question 348

The plaintiff must prove special damages, unless the defamation falls within one of the slander per se
categories. These are defamatory statements that:

Answer 348

• Adversely reflect on the plaintiff’s business or profession
• State that the plaintiff has committed a serious crime (this includes most common law crimes and is sometimes referred to as crimes involving “moral turpitude”)
• Impute that the plaintiff has engaged in serious sexual misconduct
• State that the plaintiff has a loathsome disease

Question 349

Defenses to Defamation

Answer 349

• Consent
• Truth
• Privilege

Question 350

Consent is a ____ to defamation.

Answer 350

complete defense

Question 351

In cases where the plaintiff is not obligated to prove falsity of the statement as part of their own case, the defendant may prove ___ as a complete defense.

Answer 351

truth

Question 352

Absolute privileges to defamation:

Answer 352

• Communications between spouses
• Remarks made during judicial proceedings, by legislators during proceedings (even if not related to the proceedings), by federal executive officials, in “compelled” broadcasts

Question 353

Examples of qualified privileges to defamation:

Answer 353

• References and recommendations
• Reports of public hearings or meetings
• Statements made to those who are to take official action (for example, statements made to a parole board about a prisoner)
• Statements made to defend one’s own actions, property, or reputation

Question 354

A qualified privilege arises only when ____. The ___ bears the burden of proving that a privilege exists. Whether a speaker has a qualified privilege will be determined on a ____.

Answer 354

there is a public interest in encouraging candor.

defendant; case-by-case basis

Question 355

The qualified privilege may be lost if the statement is not within the scope of the privilege or it is shown that the speaker acted with ____

Answer 355

actual malice.

Question 356

For defamation mitigating factors (for example, no malice, retraction, anger of the speaker provoked by the plaintiff) may be considered by the jury on the ____ issue; they are not ____ to liability.

Answer 356

damages; defenses

Question 357

The right of privacy is a personal right and does not extend to ____. The right of privacy is not applicable to ___.

Answer 357

members of a family, does not survive the death of the plaintiff, and is not assignable; corporations

Question 358

The invasion of the plaintiff’s interest in privacy must have been ____ caused by the defendant’s conduct.

Answer 358

proximately

Question 359

The plaintiff need not plead and prove special damages. ____ are sufficient damages.

Answer 359

Emotional distress and mental anguish

Question 360

Four kinds of wrongs in invasion of privacy actions:

Answer 360

• Appropriation of the plaintiff’s picture or name
• Intrusion on the plaintiff’s affairs or seclusion
• Publication of facts placing the plaintiff in a false light
• Public disclosure of private facts about the plaintiff

Question 361

Appropriation of Plaintiff’s Picture or Name

Answer 361

• It is necessary to show unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage.
• Liability is generally limited to advertisements or promotions of products or services.
  –> Mere economic benefit to the defendant (not in connection with promoting a product or service) by itself is not sufficient.

Question 362

Intrusion on Plaintiff’s Affairs or Seclusion

Answer 362

• This claim forbids such acts as eavesdropping, spying, interception of phone calls or electronic communications, and other similar conduct.
• The act of prying or intruding must be highly offensive to a reasonable person.
• Furthermore, the thing into which there is an intrusion
  must be “private.”
  –> Photographs taken in public places are not actionable.

Question 363

Publication of Facts Placing Plaintiff in False Light

Answer 363

“False light” exists where one attributes to the plaintiff views they do not hold or actions they did not take. The false light must be something highly offensive to a reasonable person under the circumstances. For liability to attach, the defendant must circulate the statement to the public at large. Sharing the statement with only one or a few persons will not be sufficient to trigger liability.

Question 364

For Publication of Facts Placing Plaintiff in False Light of the matter is of public interest, ___ on the defendant’s part must be proved.

Answer 364

actual malice

Question 365

Public Disclosure of Private Facts About Plaintiff

Answer 365

This wrong involves public disclosure of private information about the plaintiff (for example, matters of public record are not sufficient). The public disclosure must be highly offensive to a reasonable person of ordinary sensibilities. Liability may attach even though the actual statement is true. First Amendment limitations probably apply if the matter is of legitimate public interest.

Question 366

Some defenses to the right of privacy actions are ___ and the ____ defenses. ___ generally is not a good defense; nor is inadvertence, good faith, or lack of malice.

Answer 366

consent; defamation privilege

Truth

Question 367

To establish a prima facie case for intentional misrepresentation requires:

Answer 367

• Misrepresentation of a material past or present fact
• Scienter (when the defendant made the statement, they knew or believed it was false or that there was no basis for the statement)
• Intent to induce the plaintiff to act or refrain from acting in reliance upon the misrepresentation
• Causation (actual reliance)
• Justifiable reliance
• Damages (the plaintiff must suffer actual pecuniary loss)

Question 368

There are ____ defenses to intentional misrepresentation.

Answer 368

no

Question 369

There is no general duty to disclose a material fact, unless the defendant:

Answer 369

(1) stands in a fiduciary relationship to the plaintiff;
(2) is selling real property and knows the plaintiff is unaware of, and cannot reasonably discover, material information about the transaction; or
(3) has spoken and their utterance deceives the plaintiff.

Question 370

If a third party relies on the defendant’s representation, the defendant will be liable if ____

Answer 370

they could reasonably foresee that the third party would so rely.

Question 371

____ concealment of a material fact may also constitute a misrepresentation.

Answer 371

Physical

Question 372

Reliance generally is justifiable only on representations of _____. Reliance on opinion is justifiable only if the defendant offering the opinion has ____

Answer 372

fact (and the plaintiff is under no obligation to investigate the fact)

a superior knowledge of the subject matter.

Question 373

A prima facie case for negligent misrepresentation requires:

Answer 373

• Misrepresentation by the defendant in a business or professional capacity
• Breach of duty toward a particular plaintiff
• Causation
• Justifiable reliance
• Damages

Question 374

Generally, negligent misrepresentation is confined to misrepresentations made in a _____, and liability will attach only if reliance by the particular plaintiff could be ____

Answer 374

commercial setting; contemplated (for example, for negligent misrepresentation, foreseeability that the statement will be communicated to a third party does not make the defendant liable to the third party).

Question 375

To establish a prima facie case for interference with business relations, the following elements must be proved:

Answer 375

• Existence of a valid contractual relationship between the plaintiff and a third party or valid business expectancy of the plaintiff
• The defendant’s knowledge of the relationship or expectancy
• Intentional interference by the defendant inducing a breach or termination of the relationship or expectancy
• Damages

Question 376

As a defense to interference with business
relations the defendant’s conduct may be privileged if it is a ____

Answer 376

proper attempt to obtain business for itself or protect its interests

Question 377

A privilege in defense to interference with business is more likely to be found if the defendant:

Answer 377

(1) interfered only with the plaintiff’s prospective business rather than with existing contracts;
(2) used commercially acceptable means of persuasion rather than unlawful or threatening tactics;
(3) is a competitor of the plaintiff seeking the same prospective customers; or
(4) has a financial interest in or responsibility for the third party, or is responding to the third party’s request for business advice.