Torts

Question 1

To which three torts does the doctrine of transferred intent apply?

Answer 1

1. Battery
2. Assault
3. False imprisonment

Question 2

What is the distinction between libel and slander? What effect does the classification of defamation as one or the other have on damages?

Answer 2

Libel is defamation by words written, printed, or otherwise recorded in permanent form. Slander is defamation by spoken word, gesture, or any form other than libel.

Generally, and subject to constitutional restrictions, presumed damages may be awarded for libel, but slander requires proof of special damages unless it constitutes slander per se.

Question 3

When may a defendant be liable to a third-party victim for IIED?

Answer 3

A defendant who causes harm to an individual may be liable when his intentional or reckless conduct also causes severe emotional distress to a close family member of the individual who contemporaneously perceives the defendant’s extreme and outrageous conduct. The close family member need not suffer bodily harm.

If the defendant’s design or purpose was to cause severe distress to the third-party victim, the victim need not have contemporaneously perceived the conduct or be a close family member of the harmed individual.

Question 4

What does it mean to be “confined within a limited area” for the purposes of false imprisonment?

Answer 4

The plaintiff must be confined within a limited area in which the plaintiff’s freedom of movement in all directions is constrained. The limited area may be large and need not be stationary. A plaintiff may also be confined when compelled to move in a highly restricted way.

Note: An area is not bounded if there is a reasonable means of safe escape of which the plaintiff is aware.

Question 5

When can a bystander outside the zone of danger recover for NIED?

Answer 5

NIED recovery for plaintiffs outside the zone of danger is allowed if the plaintiff:

i) is closely related to the person injured by the defendant

ii) was present at the scene of the injury; and

iii) personally observed (or otherwise perceived) the injury.

Question 6

What are the Andrews and Cardozo views regarding the foreseeability of a plaintiff?

Answer 6

Cardozo (majority) view - a duty of care is owed to the plaintiff only if she is a member of the class of persons who might be foreseeably harmed (sometimes called “foreseeable plaintiffs”) as a result of the defendant’s negligent conduct.

Andrews (minority view) - if the defendant can foresee harm to anyone as a result of his negligence, then a duty of care is owed to everyone (foreseeable or not) harmed as a result of his breach.

Question 7

What is a “Good Samaritan” statute?

Answer 7

A “Good Samaritan” statute protects doctors and other medical personnel when they voluntarily render emergency care. These statutes exempt medical professionals from liability for ordinary negligence; however, they do not exempt them from liability for gross negligence.

Question 8

What are the elements for intentional misrepresentation (i.e., fraud, deceit)?

Answer 8

The elements for intentional misrepresentation are:

i) The defendant made a misrepresentation of a material fact, opinion, intention, or law or failed to disclose a material fact when under an affirmative duty to do so;

ii) The defendant must have known the representation to be false or must have acted with reckless disregard as to its truthfulness (scienter);

iii) The defendant must have intended to induce the plaintiff to act (or refrain from acting) in reliance on the misrepresentation;

iv) The plaintiff must have actually relied on the misrepresentation;

v) The plaintiff’s reliance must have been justifiable; and

vi) The plaintiff must prove actual damages (nominal damages are not awarded).

Question 9

What is the majority rule for proximate cause?

Answer 9

A defendant is liable for reasonably foreseeable consequences resulting from his conduct. In addition, the type of harm must be foreseeable, although the extent of harm does not need to be foreseeable. A defendant’s liability is limited to those harms that result from the risks that made the defendant’s conduct tortious, within the scope of liability of the defendant’s conduct.

Question 10

What is the effect of a plaintiff’s establishment of res ipsa loquitur?

Answer 10

If the plaintiff establishes a prima facie case of res ipsa, then the trial court should deny the defendant’s motion for a directed verdict, and the issue of negligence must be decided by the trier of fact. In most jurisdictions, res ipsa does not require that the trier of fact find negligence on the defendant’s part. It simply establishes an inference of negligence sufficient to avoid dismissal of the plaintiff’s action.

Question 11

Generally, when may a defendant act in self-defense and how much force may the defendant use?

Answer 11

A defendant has a privilege to use force against the plaintiff for the purpose of defending himself against the plaintiff’s unprivileged use of force if the defendant reasonably believes that the force is both necessary and proportionate to the force that the plaintiff is intentionally inflicting or about to inflict. The use of force must be for a defensive purpose.

The force used by the defendant should not be significantly greater than the force used by the plaintiff.

Note: A person’s mistaken belief that he is in danger, so long as it is a reasonable mistake, does not invalidate this defense.

Question 12

In what ways may a plaintiff be confined resulting in false imprisonment?

Answer 12

The defendant may confine the plaintiff by the use of physical barriers, physical force or restraint or the threat of physical force or restraint, duress other than by threat of physical force or restraint, or by the assertion of legal authority.

Question 13

What are the elements of intentional infliction of emotional distress (IIED)?

Answer 13

1) The defendant’s intentional or reckless,

2) Extreme and outrageous conduct,

3) That causes,

4) The plaintiff severe emotional distress.

Question 14

What is the definition of trespass to land?

Answer 14

The defendant’s intentional act causes a physical invasion of the land of another.

Note: The defendant need only have the intent to enter the land or to cause a physical invasion. The defendant need not know that the land belongs to another. Mistake of fact is not a defense.

Question 15

What are the elements of false imprisonment?

Answer 15

1) The defendant intends to confine or restrain the plaintiff within a limited area;

2) The defendant’s conduct causes the plaintiff’s confinement, or the defendant fails to release the plaintiff from a confinement despite owing a duty to do so, and

3) The plaintiff is conscious of the confinement (in a minority of jurisdictions, a plaintiff who was not conscious of the confinement may still recover if harmed by the confinement).

Question 16

What are the elements of battery?

Answer 16

1) The defendant intends to cause a contact with the plaintiff
2) His affirmative conduct causes such a contact, and
3) The contact causes bodily harm or is offensive to the plaintiff.

Question 17

What is the last clear chance doctrine?

Answer 17

In contributory-negligence jurisdictions, the plaintiff may mitigate the legal consequences of her own contributory negligence if she proves that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so.

The last clear chance doctrine has been abolished in most comparative-fault jurisdictions. Instead, the plaintiff’s negligence is considered in determining the recovery to which the defendant is entitled.

Question 18

When determining whether contact is offensive for the purposes of battery, what are the objective and subjective tests?

Answer 18

Objective test: contact is offensive when a person of ordinary sensibilities (i.e., a reasonable person) would find the contact offensive.

Subjective test: contact is offensive when the defendant knows that the contact is highly offensive to the plaintiff’s sense of personal dignity, and the defendant contacts the plaintiff with the primary purpose that the contact will be highly offensive (unless liability violates public policy).

Question 19

When is the use of deadly force justified in self-defense?

Answer 19

The defendant may use deadly force only if the defendant reasonably believes that:
i) The plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force upon the defendant;
ii) The defendant is thereby put in peril of either death, serious bodily harm, or rape by the use or threat of physical force or restraint; and
iii) The defendant can safely prevent the peril only by the immediate use of deadly force.

Question 20

When is the owner of a wild animal strictly liable for harm done by the animal?

Answer 20

An owner of a wild animal is strictly liable for harm done by that animal, despite any precautions the possessor has taken to confine the animal or prevent the harm, if the harm arises from a dangerous propensity that is characteristic of such a wild animal or of which the owner has reason to know.

Strict liability also applies to injury caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal.

Question 21

What are six circumstances in which a defendant has an affirmative duty to act?

Answer 21

1) Assumption of duty - A person who voluntarily aids or rescues another has a duty to act with reasonable ordinary care in the performance of that aid or rescue.

2) Placing another in peril - A person who places another in peril is under a duty to exercise reasonable care to prevent further harm by rendering care or aid.

3) Contract - There is a duty to perform contractual obligations with due care.

4) Authority - One with actual ability and authority to control another, such as parent over child and employer over employee, has an affirmative duty to exercise reasonable control.

5) Special relationship - A defendant with a unique relationship to a plaintiff, such as business proprietor–patron, common carrier–passenger, innkeeper-guest, employer-employee, or parent-child, may have a duty to protect, aid, or assist the plaintiff and to prevent reasonably foreseeable injury to her from third parties.

6) Statutory obligation - A statute that imposes an obligation to act for the protection of another but does not expressly or impliedly create or reject a private cause of action may give rise to an affirmative duty to act.

Question 22

When will a court hold a child or a mentally incompetent person liable for an intentional tort?

Answer 22

A majority of courts hold that both children and those who are mentally incompetent can be held liable for intentional torts if they act with the requisite mental state.

Question 23

Must the plaintiff be aware of what is happening for an act to constitute assault or battery?

Answer 23

For assault, the plaintiff must be aware or have knowledge of the defendant’s act or threat. However, there is no such requirement for battery.

Question 24

When does an intervening event (an act or event occurring after the defendant’s tortious act and before the plaintiff’s injury) cut off a defendant’s liability?

Answer 24

An intervening event that breaks the chain of proximate causation between the defendant’s tortious act and the plaintiff’s harm is a superseding cause. An unforeseeable intervening event is generally treated as a superseding cause, while a foreseeable intervening event generally is not.

Question 25

What are the elements of res ipsa loquitur under the traditional approach?

Answer 25

Under the traditional standard for res ipsa loquitur, the plaintiff must prove that:

i) The accident was of a kind that ordinarily does not occur in the absence of negligence;

ii) It was caused by an agent or instrumentality within the exclusive control of the defendant; and

iii) It was not due to any action on the part of the plaintiff.

Question 26

What is the definition of a private nuisance? How does a defendant’s compliance with governmental regulations affect a private nuisance action?

Answer 26

A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual’s use and enjoyment of his land.

Statutory or regulatory compliance is not a complete defense but may be admitted as evidence as to whether the interference with the plaintiff’s use and enjoyment of his land is unreasonable.

Question 27

Are those in the business of providing services subject to strict products liability?

Answer 27

No, only commercial suppliers or sellers

Question 28

When may someone use deadly force to defend property?

Answer 28

Deadly force may not be used merely in defense of property. A person may never use a deadly mechanical device (e.g., a spring-loaded gun) to defend property.

Question 29

When will a defendant’s actions be considered intentional?

Answer 29

The defendant acts intentionally if:

i) The defendant acts with the purpose of causing the consequences of his act; or

ii) The defendant acts knowing that the consequence is substantially certain to result.

Question 30

What is the “merchant’s privilege?”

Answer 30

A merchant is privileged to use force against another for the purpose of (i) investigating, (ii) recapturing, or (iii) facilitating an arrest.

To be entitled to this privilege, the merchant must reasonably believe that the other has wrongfully (i) taken/is attempting to take merchandise; or (ii) failed to pay.

In addition, the merchant’s use of force against the other must be (i) on or near the premises, (ii) reasonable, and (iii) for a reasonable time.

Question 31

What are the elements of defamation?

Answer 31

A plaintiff may bring an action for defamation if:

i) The defendant’s defamatory language;

ii) Is of or concerning the plaintiff;

iii) Is published to a third party who understands its defamatory nature; and

iv) It damages the plaintiff’s reputation.

For matters of public concern, the plaintiff is constitutionally required to prove fault on the part of the defendant. If the plaintiff is either a public official or a public figure, then the plaintiff must prove actual malice.

If either (i) the defamatory statement relates to a matter of public concern or (ii) the plaintiff is a public official or a public figure, then the plaintiff must also prove that the defamatory statement is false.

Question 32

What is the definition of trespass to chattel?

Answer 32

The defendant intentionally interferes with the plaintiff’s right of possession by either:

i) Dispossessing the plaintiff of the chattel; or

ii) Using or intermeddling with the plaintiff’s chattel.

Note: Trespass to chattels requires that the plaintiff show actual harm to or deprivation of the use of the chattel for a substantial time.

Question 33

What are the different standards of care for bailment (lending property to another?)

Answer 33

• Bailor receives sole benefit– the bailee has lesser duty to care for the property; liable for harm to the property only if grossly negligent
• Bailee receives the sole benefit– the bailee must exercise extraordinary care for the property and is liable for harm to the property even if the bailee has been only slightly negligent
• Bailor and bailee both benefit– the bailee must take reasonable care of the property; is liable for the harm to the property under ordinary negligence principles

Question 34

In what circumstances does a landlord have negligence liability to a tenant or third party for injuries suffered on the leased premises?

Answer 34

The landlord is liable for injuries to the tenant and others occurring:

i) In common areas such as parking lots, stairwells, lobbies, and hallways;

ii) as a result of hidden dangers about which the landlord fails to warn the tenant;

iii) on premises leased for public use;

iv) as a result of a hazard caused by the landlord’s negligent repair; or

v) involving a hazard that the landlord has agreed to repair.

Question 35

What is the definition of a public nuisance?

Answer 35

A public nuisance is an unreasonable interference with a right common to the general public.

Note: A private citizen has a claim for public nuisance only if that citizen suffers harm that is different in kind from that suffered by members of the general public.

Question 36

What test is generally applied to determine whether a defendant’s conduct was the actual cause of the plaintiff’s harm?

Answer 36

“But for” test: If the plaintiff’s injury would not have occurred but for the defendant’s tortious conduct, then the defendant’s conduct is a factual cause of the harm.

Question 37

How does product misuse affect the recovery of damages in a strict products liability action?

Answer 37

The misuse, alteration, or modification of a product by the user in a manner that is neither intended by nor reasonably foreseeable to the manufacturer typically negates the manufacturer’s liability.

Question 38

What are two ways in which assault differs from battery?

Answer 38

1) Bodily contact is not required for assault.

2) The plaintiff must be aware of or have knowledge of the defendant’s act or threat for assault.

Question 39

How is express consent, as a defense to intentional torts, established?

Answer 39

The plaintiff expressly consents to the defendant’s otherwise tortious intentional conduct if the plaintiff is willing for that conduct to occur. Such willingness may be express or inferred from the facts.

Note: Actual consent extends to conduct by the defendant that is not substantially different in nature from the conduct that the plaintiff is willing to permit. But when a plaintiff places a limiting condition on her actual consent (e.g., on time or place), the consent is legally effective only within the limits of that condition.

Question 40

What is the “zone of danger” rule for negligent infliction of emotional distress (NIED)?

Answer 40

A plaintiff can recover for NIED from a defendant whose tortious conduct placed the plaintiff in harm’s way if she shows that:

i) she was within the “zone of danger” of the threatened physical impact (feared for her own safety); and

ii) the threat of physical impact caused emotional distress (usually via physical symptoms).

Question 41

When is the owner of a domestic animal strictly liable for harm done by the animal?

Answer 41

A domestic animal’s owner is strictly liable for injuries caused by that animal if he knows or has reason to know of the animal’s dangerous propensities, and the harm results from those dangerous propensities.

Question 42

What are the rules regarding the use of force by parents in disciplining a child?

Answer 42

A parent is privileged to use reasonable force, threat of force, or confinement against the parent’s minor child for the purpose of disciplining, educating, controlling, or otherwise promoting the welfare of the child.

Question 43

What elements must be established for violation of a statute to constitute negligence per se?

Answer 43

1) A criminal or regulatory statute imposes a specific duty for protection of others;

2) The defendant neglects to perform the duty;

3) The plaintiff is in the class of people intended to be protected by the statute; and

4) The harm is of the type the statute was intended to protect against.

Note: In a minority of jurisdictions, violation of the statute is merely evidence of negligence (a rebuttable presumption as to duty and breach rather than a conclusive presumption).

Question 44

What is the most important thing a plaintiff must prove to be awarded damages in a negligence action?

Answer 44

The plaintiff must prove actual physical harm (bodily harm, property damage) to be entitled to damages for negligence. Nominal damages are not available.

Question 45

What test is applied by most courts when the conduct of two or more defendants may have contributed to a plaintiff’s indivisible injury?

Answer 45

Substantial-factor test: In cases in which the conduct of two or more defendants may have contributed to a plaintiff’s indivisible injury, each of which alone would have been a factual cause of that injury, the test applied by most courts is whether the defendant’s tortious conduct was a substantial factor in causing the plaintiff’s harm.

Note: Under the minority rule of the Third Restatement, each such cause or act is regarded as a factual cause of the harm. Together they are designated as “multiple sufficient causes.”

Question 46

What is the effect of an exculpatory clause in a contract under which the defendant disclaims liability for negligence? In what situations will it not be enforced?

Answer 46

An exculpatory clause in a contract can constitute an express assumption of the risk by the plaintiff that operates as an affirmative defense to a negligence action.

Note: Many courts now hold that disclaimer of liability by contract negates the fact that the defendant owes a duty of care to the plaintiff in the first place, causing the plaintiff’s prima facie case to fail, rather than operating as an affirmative defense.

Courts will not enforce exculpatory provisions:

i) Disclaiming liability for reckless or wanton misconduct or gross negligence;

ii) When there is a gross disparity of bargaining power between the parties;

iii) When the party seeking to apply the exculpatory provision offers services of great importance to the public that are a practical necessity for some members of the public such as medical services;

iv) If the exculpatory clause is subject to typical contractual defenses such as fraud or duress; or

v) When it is against public policy to enforce agreements that insulate people from the consequences of their own negligence.

Question 47

What are two major forms of comparative negligence? Define each.

Answer 47

1) Pure comparative negligence: The plaintiff’s full damages are calculated by the trier of fact and then reduced by the proportion that the plaintiff’s fault bears to the total harm.

2) Partial (Modified) comparative negligence:

(i) If the plaintiff is less at fault than the defendant, the plaintiff’s recovery is reduced by his percentage of fault, just as in a pure comparative-fault jurisdiction;

(ii) If the plaintiff is more at fault than the defendant, the plaintiff’s recovery is barred, just as in a contributory-negligence jurisdiction;

(iii) In the vast majority of modified comparative-fault jurisdictions, if the plaintiff and the defendant are found to be equally at fault, the plaintiff recovers 50% of his total damages. In a few modified comparative-fault jurisdictions, the plaintiff recovers nothing when the plaintiff and the defendant are equally at fault.

Question 48

What qualifies as contact with the “plaintiff’s person” for the purposes of battery?

Answer 48

Contact with anything connected to the plaintiff’s person qualifies as contact with the plaintiff’s person for the purposes of battery (e.g., a person’s clothing, a pet held on a leash, a bicycle ridden by the plaintiff).

Question 49

In negligence actions, what standard of care applies to a professional?

Answer 49

A professional person (e.g., doctor, lawyer, or electrician) is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community.

A specialist may be held to a higher standard than a general practitioner because of his superior knowledge.

Note: Establishing negligence by a professional person generally requires expert testimony to establish both the applicable standard of care and the defendant’s deviation from that standard.

Question 50

What is the market share liability doctrine?

Answer 50

Under the market share liability doctrine, if the plaintiff’s injuries are caused by a fungible product and it is impossible to identify which defendant placed the harmful product into the market, the jury can apportion liability based on each defendant’s share of the market.

Question 51

What is required for a prima facie case for strict liability? What are the typical situations to which it is applied?

Answer 51

A prima facie case for strict liability requires:

i) An absolute duty to make the plaintiff’s person or property safe;

ii) Breach;

iii) Actual and proximate causation; and

iv) Damages.

Strict liability is typically applied to dangerous activities, animals, and defective or dangerous products.

Question 52

When is a product defective?

Answer 52

A product is defective when, at the time of the sale or distribution, it contains a:

i) Manufacturing defect: A deviation from what the manufacturer intended the product to be that causes harm to the plaintiff (the test is whether the product conforms to the defendant’s product specifications);

ii) Design defect: A defect in the design of the product as determined under the consumer expectation test (unreasonably dangerous beyond the expectation of an ordinary user) and/or the risk-utility test (a reasonable alternative design that was economically feasible was available to the defendant and the failure to use that design rendered the product not reasonably safe); or

iii) Failure-to-warn defect: There is a foreseeable risk of harm, not obvious to an ordinary user of the product, which risk could have been reduced or avoided by providing reasonable instructions or warnings, rendering the product not reasonably safe.

Question 53

What are the four elements of negligence?

Answer 53

A prima facie case of negligence consists of four elements:

1. Duty, the obligation to protect another against unreasonable risk of injury;
2. Breach, the failure to meet that obligation;
3. Causation (factual and proximate), a close causal connection between the action and the injury; and
4. Damages, the harm suffered.

Note: The plaintiff must establish all four elements of negligence by a preponderance of the evidence.

Question 54

What effect does evidence of custom have on the standard of care in a negligence action?

Answer 54

Evidence of a custom in a community or an industry is admissible as evidence to establish the proper standard of care, but such evidence is not conclusive.

Question 55

What are four invasion of privacy torts?

Answer 55

1) Misappropriation of the right to publicity;

2) Intrusion upon seclusion;

3) Placing the plaintiff in a false light; and

4) Public disclosure of private facts

Question 56

Are words sufficient to establish a prima facie case for assault?

Answer 56

For assault, words alone are insufficient. However, words coupled with conduct or other circumstances may be sufficient if the plaintiff reasonably anticipates that a harmful or offensive contact is imminent.

Question 57

When is conduct considered extreme and outrageous for the purposes of IIED?

Answer 57

Conduct is extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society. The character of the conduct must be outrageous and the conduct must be sufficiently unusual to be extreme.

Note: While liability generally does not extend to mere insults, threats, or indignities, a defendant’s abusive language and conduct may be sufficiently “extreme and outrageous” if the defendant is in a position of authority or influence over the plaintiff, or the plaintiff is a member of a group with a known heightened sensitivity.

Question 58

What are two situations in which a plaintiff’s express consent will not constitute a defense to an intentional tort?

Answer 58

1. Mistake - Defendant caused the plaintiff’s mistake or knew of it.
2. Duress - Defendant’s use of physical force or threat of present action.

If consent is obtained through any of the above means, the consent is invalid.

Question 59

What is the firefighter’s rule?

Answer 59

Firefighter’s rule: An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent in the job.

Question 60

What are the elements for intentional interference with a contract?

Answer 60

To establish a prima facie case for intentional interference with a contract, the plaintiff must prove that:

i) A valid contract existed between the plaintiff and a third party;

ii) The defendant knew of the contractual relationship;

iii) The defendant intentionally interfered with the contract, causing a breach; and

iv) The breach caused damages to the plaintiff.

Question 61

What is the effect of a plaintiff’s negligence on a strict products liability action?

Answer 61

In most comparative-fault jurisdictions, the plaintiff’s own negligence reduces his recovery in a strict-products-liability action in the same manner as in a negligence action. In those jurisdictions, a plaintiff’s conduct that amounts to an “assumption of the risk” is treated as comparative negligence in order to reduce, but not eliminate, recovery.

Note: In some comparative-fault jurisdictions, the plaintiff’s recovery in strict products liability is not reduced by the percentage that the plaintiff’s fault contributed to causing her injury.

Question 62

What types of damages are permitted for strict products liability claims?

Answer 62

Only personal injury or property damage. A claim for purely economic loss must be brought as a breach-of-warranty action.

Question 63

When is a person who engages an independent contractor vicariously liable for the independent contractor’s torts?

Answer 63

Those who engage an independent contractor are generally not vicariously liable for the torts of the independent contractor. A person who hires an independent contractor is vicariously liable for certain conduct, including:

i) Abnormally dangerous activities;

ii) Inherently dangerous activities;

iii) Non-delegable duties arising out of a relationship with a specific plaintiff or the public (i.e., activities that are inherently risky or that affect the public at large, such as construction work adjacent to a public highway);

iv) The duty of a storekeeper or other operator of premises open to the public to keep such premises in a reasonably safe condition;

v) The duty of an employer to maintain a safe work environment for employees; and

vi) In a minority of jurisdictions, the duty to comply with state safety statutes.

Question 64

In a negligence action, when are damages for economic loss allowed?

Answer 64

If a plaintiff has proven non-economic injury, he is entitled to recover both economic and non-economic damages.

Note: A plaintiff who suffers only economic loss without any related personal injury or property damage generally cannot recover such loss through a negligence action.

Question 65

What is the definition of conversion?

Answer 65

The defendant intentionally commits an act depriving the plaintiff of possession of her chattel or interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff of the use of the chattel.

Note: The plaintiff may recover damages in the amount of the full value of the converted property at the time of the conversion. Alternatively, the plaintiff may bring an action for replevin to recover the chattel.

Question 66

What level of force may be used when recapturing one’s personal property?

Answer 66

A person is generally not privileged to commit battery, assault, or false imprisonment to regain possession of personal property.

Note: Under the “fresh pursuit” exception, when a plaintiff wrongfully takes personal property from a defendant’s possession, the defendant may use reasonable, nondeadly force to regain possession of the property if the defendant acts promptly.

Question 67

Can you defame a dead person?

Answer 67

No, unless there’s a state statute saying otherwise.

Question 68

When may someone use force to defend property?

Answer 68

A person may use reasonable force to defend her property if:
i) The intrusion is not privileged;
ii) The defendant reasonably believes that:
a) The plaintiff is intruding or imminently will intrude on the defendant’s property; and
b) The intrusion can be prevented or terminated only by the means used;
iii) The defendant first asks the plaintiff to desist, and the plaintiff disregards the request or the defendant reasonably believes that a request will be useless or dangerous or that substantial harm will be done before the request can be made;
iv) The means used are reasonably proportionate to the value of the interest the defendant is protecting; and
v) The means used are not intended or likely to cause death or serious bodily injury.

Question 69

What is the doctrine of joint and several liability?

Answer 69

Under the doctrine of joint and several liability, each of two or more tortfeasors who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm. The plaintiff has the choice of collecting the entire judgment from one defendant, the entire judgment from another defendant, or portions of the judgment from various defendants, as long as the plaintiff’s entire recovery does not exceed the amount of the judgment.

Note: Always apply joint and several liability on the MBE unless the facts instruct you to apply a different test.

Question 70

When has a plaintiff impliedly assumed a risk? What is the effect of that assumption?

Answer 70

Generally, a plaintiff must voluntarily encounter a known, specific risk in order to have impliedly assumed that risk. Most courts hold that the voluntary encountering must also be unreasonable.

In most comparative fault jurisdictions, this form of assumption of the risk has been merged into the comparative-fault analysis and merely reduces recovery. In the few contributory negligence jurisdictions and in a minority of comparative-fault jurisdictions, this form of assumption of the risk remains a total bar to recovery.

Question 71

What is the imminence requirement for assault?

Answer 71

The threatened bodily harm or offensive contact must be imminent, i.e., without significant delay. Threats of future harm are insufficient, as are threats made by a defendant too far away to inflict any harm; but threat of future contact can satisfy the imminence requirement in some circumstances.

Question 72

What is negligent communication vis-a-vis defamation?

Answer 72

Negligence communication (i.e., publication) occurs when it is reasonably foreseeable that a third party might hear a defendant’s defamatory statement (as opposed to a defendant intentionally communicating that statement to a third party).

Question 73

When is use of force in defending others justified?

Answer 73

One may defend another with force upon a reasonable belief that the circumstances are such that the third person has a privilege of self-defense against the plaintiff and the defendant’s intervention is immediately necessary for the protection of the third person. The third person need not be related to the defendant but may instead be a stranger.

Question 74

What is the “eggshell-skull” rule?

Answer 74

The defendant is liable for the full extent of the plaintiff’s injuries that may be increased because of the plaintiff’s preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable.

Question 75

In negligence actions, what standard of care is imposed upon a child?

Answer 75

The standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience.

Note: A child engaged in a high-risk activity that is characteristically undertaken by adults, such as driving a car, is held to the same standard as an adult.

Question 76

What is an abnormally dangerous activity? For what harms from an abnormally dangerous activity is strict liability applicable?

Answer 76

An activity that:

i) Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised; and

ii) The activity is not commonly engaged in.

Note: In addition to these requirements, in evaluating whether an activity is abnormally dangerous, courts often consider the gravity of the harm resulting from the activity, the inappropriateness of the place where the activity is being conducted, and the limited value of the activity to the community.

Strict liability for an abnormally dangerous activity exists only if harm that actually occurs results from the risk that made the activity abnormally dangerous in the first place.

Question 77

When is an employer vicariously liable for an employee’s torts?

Answer 77

An employer is liable for the tortious conduct of an employee that is within the scope of employment. Conduct within the scope of employment includes acts that the employee is employed to perform or that are intended to profit or benefit the employer. An employer may be liable for an employee’s detour but not an employee’s frolic.

Note: Generally, an employer is not liable for the intentional tort of an employee unless such force is inherent to the job or the employee is authorized to act or speak for the employer and the position provided an opportunity for the tort.

Question 78

What defenses are available to a defamation action?

Answer 78

1. Truth, a truthful statement is not defamatory.
2. Consent is a defense, provided the scope of the consent is not exceeded.
3. Absolute privileges exist for statements made:

• In the course of judicial proceedings by the participants to the proceeding or legislative proceedings by witnesses to the proceedings;
• Between spouses concerning a third person; and
• As required publications by radio, television, or newspaper.

4. Qualified (conditional) privileges exist for statements:

• Made in the interest of the publisher (defendant), such as defending his reputation;
• Made in the interest of the recipient of the statement or a third party; or
• Affecting an important public interest.

Question 79

What is the traditional rule for contributory negligence?

Answer 79

The plaintiff’s contributory negligence (i.e., failure to exercise reasonable care for her own safety) is a complete bar to recovery, regardless of the percentage that the plaintiff’s own negligence contributed to the harm.

Question 80

What is the doctrine of “transferred intent?”

Answer 80

Transferred intent exists when a person intends to commit an intentional tort against one person but instead commits the intended tort against a different person.

Question 81

Who may be a defendant in a strict products liability action?

Answer 81

The defendant must be in the business of selling or otherwise distributing products of the type that harmed the plaintiff, which includes the manufacturer of the product, its distributor, and its retail seller.

Note: If the seller is a commercial supplier of the product, the seller is subject to strict liability for a defective product, even if the revenue from sales of the product is not a significant portion of its business. The seller is generally strictly liable even if the seller was not responsible for the defect in any way and even when the product is not purchased directly from the seller.

Question 82

In negligence actions, what is the general standard of care?

Answer 82

The general standard of care imposed is that of a that of a reasonably prudent person under the circumstances. The standard is an objective one. Under this standard, the defendant is presumed to have average mental abilities and the same knowledge as an average member of the community, but a defendant’s particular physical characteristics (e.g., blindness) are taken into account.

Note: If a defendant possesses special skills or knowledge, she must exercise her superior competence with reasonable attention and care.

Question 83

What are the elements for strict products liability?

Answer 83

The plaintiff must plead and prove:

i) The product was defective;

ii) The defect existed when it left the defendant’s control; and

iii) The defect caused the plaintiff’s injury when the product was used in a reasonably foreseeable way.

Question 84

What are the elements of assault?

Answer 84

1) Plaintiff’s reasonable apprehension,

2) Of an imminent harmful or offensive bodily contact,

3) Caused by the defendant’s action or threat,

4) With the intent to cause either the apprehension of such contact or the contact itself.

Question 85

What is the learned-intermediary rule regarding prescription drugs and medical devices in the context of strict products liability?

Answer 85

The manufacturer of a prescription drug or medical device typically satisfies its duty to warn the consumer by informing the prescribing physician, rather than the patient, of problems with the drug or device.

Question 86

How is rebuttal evidence relevant to negligence per se?

Answer 86

A defendant’s violation of an applicable statute/ordinance will be excused if the defendant presents rebuttal evidence that they were using reasonable care or were incapacitated while attempting to comply with the statute or ordinance.

Question 87

Does transferred intent apply when a defendant’s intentional use of force is privileged?

Answer 87

No (i.e., a bystander can’t sue a security guard firing at a bank robber for battery even if the bystander is hit by the bullets)– no transferred intent.

Question 88

When does a seller remain liable to persons of the land for physical harm caused by an artificial condition on the land?

Answer 88

A seller remains liable to persons off the land for physical harm caused by an artificial condition on the land that (1) existed at the time of sale and (2) the seller knew, or should have known, existed and posed an unreasonable risk of harm to such persons.

Question 89

When is there liability for negligent hiring?

Answer 89

Liability for negligent hiring arises when a defendant’s failure to use reasonable care in hiring a competent worker causes the plaintiff harm. There must be some causal connection between the defendant’s negligence in hiring the worker, the worker’s employment or job, and the plaintiff’s harm.

Question 90

Is consent to treatment by a medical professional limited to treatment by the individual whose treatment was agreed to by the patient?

Answer 90

Yes

Question 91

Can a defendant use reasonable force to stop a trespass?

Answer 91

Although a defendant is generally privileged to use reasonable force (e.g., battery) to stop a trespass, the defendant cannot use force to stop a trespass committed out of private necessity– i.e., an emergency intrusion that is, or reasonably appears to be, necessary to protect oneself, third parties, or property.