torts

Question 1

trespass

what is the difference b/w trespass to chattels and conversion (incl. remedy)?

Answer 1

trespass to chattels
* MINOR, INTENTIONAL interference w P’s right to control chattel
* liable for ACTUAL damages – repairs, cost of use, etc.
conversion
* SUBSTANTIAL, INTENTIONAL interference w P’s right to control chattel
* P can recover fair mkt value of chattel at time of conversion

Question 2

IIED

what are some examples of conduct that would qualify as extreme and outrageous (for the purposes of IIED)?

Answer 2

• abusing a position of authority
• exploiting a KNOWN spl vulnerability
• repeated or prolonged conduct
• going beyond the bounds of human decency

Question 3

common carriers

what are the common law & modern approaches to common carrier duty? which is the majority rule?

Answer 3

• COMMON LAW (MAJORITY): common carriers can be liable for even slight negligence because they owe the highest duty of care to their passengers that is consistent with practical business operation
• MODERN RULE (MINORITY): common carriers are negligent only if they fail to use reasonable care to protect passengers from harm that arises within the scope of that relationship.

Question 4

P’s fault

what must a D prove for their defense of P’s contributory negligence to be successful (in a contributory negligence jxdn)?

Answer 4

• P was negligent – i.e. P failed to use reasonable care for their own safety
• P’s negligence was the PROXIMATE cause of P’s harm

Question 5

res ipsa loquitor

what are the traditional and 3d restatement approaches to res ipsa loquitor? which is the majority approach?

Answer 5

TRADITIONAL (MAJORITY):
* P’s harm would not occur UNLESS someone was negligent,
* D had exclusive control over (or was responsible for all others who had control) over the thing that caused harm, AND
* P did nothing to cause harm (this element is loosely applied in comparative negligence jxdns bc conflicts w approach that P’s comparative negligence isn’t a total bar to recovery)

3D RESTATEMENT (MINORITY):
* Accident that caused P’s injury is a type that ordinarily happens due to the negligence of a class of actors
* D is a member of that class

Question 6

when to use contributory negligence vs. assumption of risk as a defense?

Answer 6

assumption of risk is a slightly higher bar.

contributory negligence (traditional rule): P’s failure to exercise reasonable care for their own safety is a COMPLETE bar to recovery

assumption of risk: P voluntarily accepts a KNOWN risk of harm – i.e. they had to have known about the risk that ulimately caused their injury

Question 7

liability

what is the practical difference, for P, b/w “joint and several liability” and “several liability”

Answer 7

• joint and several liability: P can recover from any D the total amt of damages (minus the P’s share of comparative fault). That D can then sue the other(s) for contribution
• several liability: P is limited to recovering from each D the portion of damages that corresponds to that D’s proportionate share of fault.

Question 8

what is a landowner’s duty to trespassers?

Answer 8

a landowner owes a duty to KNOWN or ANTICIPATED trespassers to
(1) warn them about hidden, artificial dangers that are known to the land possessor but unlikely to be discovered by trespassers, and (2) use reasonable care in activities conducted on the land

Question 9

when may a P hold a D liable for IIED if P was NOT the intended target of D’s extreme and outrageous conduct?

Answer 9

• if P contemporaneously perceived D’s extreme and outrageous conduct,
• if P was closely related to the 3d party (intended victim)
• if D knew of P’s presence and that relationship

Question 10

what is the result, in a pure comparative fault jxdn, when the P and D are both at fault and both entitled to recover dmgs?

Answer 10

In a pure comparative-fault jurisdiction, when the P and the D are both entitled to recover damages, the P’s recovery is reduced (i.e., offset) by the D’s recovery (and vice versa).

Question 11

when does proximate cause occur?

Answer 11

Proximate cause occurs when the plaintiff’s harm was a reasonably foreseeable consequence of the defendant’s conduct.

Question 12

what is a guest statute wrt driving?

Answer 12

a guest statute is designed to prevent a NON-PAYING passenger of a vehicle for suing the driver for injuries resulting from the driver’s negligence.

the passenger can normally only sue the driver if the driver’s actions constitute GROSS negligence or WILFUL and WANTON misconduct.

e.g. - drunk driving, playing “chicken”, driving a car knowing the brakes are faulty, or continuing to drive dangerously after the passenger has asked to be let out or that the car be stopped

Question 13

when is the commercial seller of a component that is integrated into a defective product subject to liability?

Answer 13

the commercial seller of a component that is integrated into a defective product is subject to liability if:
1. the component is defective OR
2. the supplier / seller subsantially participated in the process of integrating the component into the product’s design AND the component’s integration caused the product to be defective

Question 14

when is a commercial seller subject to strict products liability?

Answer 14

a commercial seller is subject to strict products liability when
1. the defective product harms a foreseeable plaintiff when it was used in an intended or reasonably foreseeable way AND
2. the defect existed at the time the product left the commercial seller’s control

Question 15

what are the elements a P must est to make a prima facie case for intentional interference w/ K?

Answer 15

1. a valid K existed b/w P and 3d party
2. D knew of the contractual relationship
3. D intentionally interfered w the K, causing a breach
4. the breach caused dmgs to P

Question 16

what is the modern (minority, 3d restatement) approach to landowner duty to land entrants?

Answer 16

Under the modern approach to land-possessor liability, land possessors owe a duty of reasonable care to all land entrants except for flagrant trespassers

wrt flagrant trespassers, the landowner must not act in an intentional, willful, or wanton manner that causes serious harm AND must exercise reasonable care to flagrant trespassers in peril

Question 17

what are nondelegable duties? (incl. main examples)

Answer 17

nondelegable duties are those that cannot be assigned to another to avoid liability

incl:
* maintaining safe conditions on premises open to the public
* safely performing activities that are: (1) abnormally dangerous; (2) infringe on private property, (3) are regulated by law, OR (4) are conducted in a public place

Question 18

for the purposes of vicarious liability, who is an independent contractor?

Answer 18

one who performs work for another outside of an ER / EE relationship

Question 19

under what circumstances may principals be vicariously liable for an independent contractor’s torts?

Answer 19

A principal is generally not vicariously liable for its independent contractor’s torts.

Vicarious liability will be imposed when the independent contractor breaches a nondelegable duty of care owed by the principal—e.g., a land possessor’s duty to keep the premises safe for business visitors.

Question 20

what remedy can landowner P claim from trespasser D if their land is trespassed out of private necessity?

Answer 20

cannot claim nominal or punitive damages

can claim actual damages caused by the trespass UNLESS the entry was for the landowner’s benefit

nondefensible trespass: can claim all three types of damages

public necessity: no damages

Question 21

what are the elements of private nuisance?

Answer 21

iability for private nuisance arises when a defendant’s interference with the use and enjoyment of the plaintiff’s property is both:

• substantial – offensive, annoying, or intolerable to a normal person in the community AND
• unreasonable – effectively renders the land unavailable for ordinary use or enjoyment by the possessor and satisfies certain criteria.

P’s hypersensitivity for any reason does not matter for these purposes - objective test

Question 22

when is a product defective for inadequate warnings or instructions?

Answer 22

A product is defective due to inadequate warnings or instructions when
* (1) it poses a foreseeable risk of harm that is not obvious to an ordinary user AND
* (2) reasonable instructions or warnings could have reduced that risk.

Question 23

what are the 8 special relationships imposing a duty to protect others?

Answer 23

PHESCCI

Parent - child
Hospital - patient
ER - EEs
Shopkeeper - business invitees
Common carriers - passengers
Custodian - person in custody
Innkeeper - guests

Question 24

what is the rule for a common carrier’s duty of care to its passengers?

(Majority traditional rule & Minority modern rule)

Answer 24

a common carrier owes a heightened duty of care to its passengers –

• MAJORITY: highest level of care consistent w the practical operation of the business
• MINORITY: reasonable care to protect passengers from harm that arises within the scope of the relationship

Question 25

what is normally required to establish a profession’s applicable std of care (and professional’s deviation from such std)

Answer 25

usually expert testimony is required

but not required when the D’s negligence is so apparent that a lay person could identify it

Question 26

when is a product defective for design under the risk utility test?

Answer 26

• design creates a foreseeable risk of harm AND
• risk could have been mitigated by a reasonable alternative design

Question 27

name the elements of the entry requirement for trespass to land

Answer 27

entrant must either:

(1) intentionally enter land (or cause a thing or other person to enter land) OR
(2) intentionally remain on land (or cause a thing or other person to remain on land)

D only needs intent to cause a physical invasion - not intent to commit a wrongful trespass

Question 28

to whom does SL extend when an animal (other than a dog or cat) wanders onto another’s land and causes reasonably foreseeable damage (e.g. goats that eat garden vegetables)?

Answer 28

• SL extends to the owner of the ANIMALS – not to the owner of the LAND on which the animals were kept (unless the landowner also has the right to possess the animals)

Question 29

describe a parent’s duty with respect to their child’s torts

Answer 29

parents owe a reasonable duty of care to prevent their minor child from causing foreseeable harm to others

Question 30

for what kinds of harm can a P recover damages under a negligence theory?

Answer 30

personal injury or dmg to property

cannot recover for purely economic loss

Question 31

what are the elements of intentional interference with a contract?

Answer 31

• VALID CONTRACT existed bw P and 3d party
• D knew of the Kual relationship
• D intentionally and improperly interfered w the K’s performance AND
• that interference caused P pecuniary loss

NOTE: the pecuniary loss NEED NOT be substantial

Question 32

what are the elements of fraudulent misrepresentation?

Answer 32

• Knowingly or recklessly misrepresented material fact to induce reliance
• in any setting
• justifiable reliance caused pecuniary loss

Question 33

what are the elements of negligent misrepresentation?

Answer 33

• negligently provided P w false information
• in a commercial setting or setting w risk of physical harm
• justifiable reliance caused pecuniary loss OR physical harm

Question 34

The tort of negligent misrepresentation based upon a breach of the duty to supply correct information requires proof of which elements?

Answer 34

• D negligently provided false information during the course of their business or profession
• P justifiably relied upon the false information and suffered pecuniary (i.e., financial) loss as a result
• P was in a contractual relationship with the defendant or was a third party known by the defendant as one for whose benefit the information was supplied

BUT P cannot recover if they used the info for a different purpose than that intended / communicated to D

Question 35

when is a battery privileged in defense of a 3d party?

Answer 35

if D reasonably believes that:
* the circumstances are such that the 3d party has the privilege of self-defense, AND
* D’s action is immediately necessary to protect 3d party