Torts

Question 1

What are the special relationships that impose a duty?

Answer 1

(1) Parent/child
(2) Hospital/patient
(3) Employer/employees
(4) Shopkeeper/business invitees
(5) Common carrier/passengers
(6) Custodian/person in custody
(7) Innkeeper/guests

Question 2

What is the doctrine of res ipsa loquitur?

Answer 2

Someone’s negligence can be inferred from circumstantial evidence under the doctrine of res ipsa loquitur.

Under the traditional standard, negligence is inferred when:
(1) the plaintiff’s harm would not normally occur unless someone was negligent;
(2) the defendant had exclusive control, or was responsible for all others who had control, over the thing that caused the harm; and
(3) the plaintiff did nothing to cause the harm.

When res ipsa loquitur applies, the plaintiff’s burden to produce evidence of negligence is satisfied and the court will generally deny the defendant’s efforts to dismiss the case.

Question 3

What is actual (factual) cause?

Answer 3

Actual (factual) - this is often established under the but-for test, which is satisfied if the plaintiff’s harm would not have occurred “but for” the defendant’s conduct.

However, this test does not apply when multiple forces combined to cause the plaintiff’s harm and any one alone would have been sufficient to cause harm. Instead the test is whether the defendant’s conduct was a substantial factor in causing the harm.

Question 4

What is proximate (legal) cause?

Answer 4

The plaintiff’s harm was a reasonably foreseeable consequence of the defendant’s conduct, meaning that the conduct was of a type that generally increases the risk of that harm.

Question 5

What is pure comparative negligence?

Answer 5

When the plaintiff’s own negligence contributes to his/her harm, the plaintiff’s recovery is reduced by his/her proportionate share of fault.

When both parties are entitled to recover damages, the plaintiff’s recovery is reduced by the defendant’s recovery - and vice versa.

Ex. Plaintiff was 70% at fault and the defendant 30% at fault. Plaintiff’s recovery will be reduced by her proportionate share of fault ($10,000 - $7,000 = $3,000). Defendant’s recovery will be reduced by his proportionate share of fault ($1,000 - $300 = $700). Determined that both parties are entitled to recovery, Plaintiff’s recovery will be reduced by the defendant’s recovery ($3,000 - $700), for a total recovery of $2,300.

Question 6

What is modified comparative negligence?

Answer 6

The same as pure comparative fault, except that the plaintiff’s recovery is barred if his/her fault exceeds 50%.

Question 7

What is contributory negligence?

Answer 7

The plaintiff’s failure to use reasonable care for his/her own safety is a complete defense to negligence. This is true regardless of the percentage that the plaintiff’s own negligence contributed to the harm.

Question 8

What is several liability?

Answer 8

Each tortfeasor is liable for portion of damages corresponding to his/her proportionate fault (ex. 15% of damages for 15% fault).

Question 9

What is joint & several liability?

Answer 9

Any tortfeasor can be held liable for plaintiff’s total amount of damages. Plaintiff can recover the full amount of damages from any of the negligent defendants, even if it is impossible to prove which one actually caused the harm. However, the plaintiff must first prove that each defendant was negligent.

Question 10

What is strict animal liability?

Answer 10

A defendant is strictly liable for harm that:
(1) is caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal; or
(2) directly results from the wild animal’s abnormally dangerous characteristics.

(1) Livestock - Ex. cattle, goats, horses, deer, rabbits

(2) Wild Animals - an animal is wild if it is not by custom devoted to the service of humankind in the place it is being kept. Ex. lions, monkeys, coyotes, zebras, venomous snakes

(3) Abnormally Dangerous Animals - Ex. rabid dogs/cats, aggressive birds, skittish horses, dangerously playful dogs

The owner of a domestic animal is generally not strictly liable for any physical harm caused by the animal. However, strict liability will be imposed when:
(1) the owner knew or had reason to know about the domestic animal’s dangerous propensities; and
(2) the plaintiff’s harm arose from those dangerous propensities.

Question 11

Who can strict products liability claims be brought against?

Answer 11

Any commercial seller in the distribution chain (ex. manufacturer, distributer, retailer) is subject to strict products liability if:
(1) the commercial seller’s product was defective when it left the commercial seller’s control; and
(2) that defect caused the plaintiff harm.

Strict liability is imposed even if the commercial seller did not create or know about that defect.

Note: those in the business of providing services are not subject to strict products liability.

Question 12

What is the defendant’s culpability in defamation claims?

Answer 12

If the plaintiff is a private person, then the defendant must act with:
(1) knowledge that statement is false; or
(2) negligent disregard for its falsity.

If the plaintiff is a public official or public figure, then the defendant must act with actual malice:
(1) knowledge that statement is false; or
(2) reckless disregard for its falsity.

Question 13

What is defamation?

Answer 13

Defamation can be libel (written statements) or slander (spoken statements).

Question 14

What is the bystander theory?

Answer 14

When a plaintiff’s emotional distress stems from witnessing harm to a close relative, the plaintiff can sue for intentional infliction of emotional distress (IIED) under the bystander theory. Liability arises under this theory when the plaintiff proves the following:
(1) the defendant engaged in extreme and outrageous conduct that emotionally or physically harmed the plaintiff’s close family member;
(2) the defendant’s conduct was intentional or reckless ( the defendant knew that the plaintiff was present and closely related to the injured person); and
(3) the plaintiff contemporaneously perceived that conduct and suffered severe emotional distress.

Question 15

What is a private nuisance?

Answer 15

Liability for private nuisance arises when a defendant’s interference with the use and enjoyment of the plaintiff’s property is both:
(1) substantial - offensive, annoying, or intolerable to a normal person in the community; and
(2) unreasonable - effectively render the land unavailable for ordinary use or enjoyment by the possessor and satisfies certain criteria:
(a) per se nuisance - D’s conduct, in & out of itself, is a nuisance
(b) conduct unsuited to location - D’s conduct is unsuited to location and P’s use & enjoyment of property are suited to location
(c) avoidable harm - D’s failure to exercise reasonable care regarding risk of harm caused in interference
(d) malicious conduct - D’s activity or condition created by D is motivated entirely or almost entirely by malice.

Question 16

What is a land possessor’s duty to land entrants?

Answer 16

Traditionally, the duty owed to land entrants depend not their status on the land. However, under the modern approach, land possessors owe all land entrants - except flagrant trespassers - a duty of reasonable care to protect from foreseeable risk of harm.

A flagrant trespasser is one who enters another’s land w/o permission and whose entry is particularly egregious (entry that results in commission of a crime). Reasonable care not owed to flagrant trespassers BUT land possessor must:
(1) not act in intentional, willful, or wanton manner that causes physical harm; and
(2) exercise reasonable care to flagrant trespassers in peril.

Question 17

What is the doctrine of negligence per se?

Answer 17

Under the doctrine of negligence per se, the majority approach is that duty and breach can be conclusively presumed if:
(1) the defendant violated a statute or ordinance;
(2) the statute or ordinance was intended to prevent the type of harm suffered by the plaintiff; and
(3) the plaintiff is within a class of persons that the statute or ordinance was intended to protect.

However, under the minority approach, the violation of a statute or ordinance is merely evidence that creates a rebuttable presumption that the defendant breached a duty of care.

Question 18

What factors are considered for compensatory damages?

Answer 18

A successful negligence claim requires proof that the plaintiff suffered physical harm as a result of the defendant’s negligent conduct. Assuming all other elements are provided, the fact finder considers the following factors to determine the amount of compensatory damages the plaintiff can recover in a negligence action:
(1) the initial physical harm caused by the defendant’s negligent act;
(2) any subsequent harm (physical, economic, or emotional) that is traceable to that initial harm; and
(3) any steps taken by the plaintiff to mitigate that initial harm.

Question 19

What are different doctrines of invasion of privacy?

Answer 19

(1) Intrusion upon seclusion - highly offensive & intentional intrusion on plaintiff’s solitude, seclusion, or private affairs.

(2) Appropriation of name or likeness - unauthorized use of plaintiff’s name or likeness for personal benefit.

(3) Public disclosure of private facts - publicity given to highly offensive & private matter concerning plaintiff that is not of legitimate public concern & results in damages.

(4) Publicity in a false light - publicity given to false information about plaintiff with actual malice that place him/her in highly offensive & false light & results in damages.

Question 20

What is intentional interference with a contract?

Answer 20

A plaintiff must prove:
(1) a valid contract existed b/w the plaintiff and a third party;
(2) the defendant knew of that contractual relationship;
(3) the defendant intentionally and improperly interfered with the contract’s performance; and
(4) that interference caused the plaintiff pecuniary (monetary) loss.

Question 21

What is the rescue doctrine?

Answer 21

Under the rescue doctrine, persons who negligently endanger themselves or others are liable for injuries sustained by rescuers. But the rescue doctrine is limited by the firefighter’s rule, which applies to all professional rescuers, and bars professional rescuers from recovering for harm that resulted from special dangers of their jobs.

Question 22

What is a professional’s standard of care for negligence?

Answer 22

Must demonstrate same knowledge, skill & care as another professional in similar community.

However, national standard applied to medical specialists.

Question 23

What is a child’s standard of care for negligence?

Answer 23

Must act in same manner as reasonable child of same age, intelligence & experience. Children under 5 incapable of negligence.

However, adult standard applied to children engaged in dangerous adult activity.

Question 24

What is a land possessor’s duty to land entrants under the traditional approach?

Answer 24

A land possessor owes a duty of reasonable care to foreseeable plaintiffs who enter the land.

But, under the traditional approach:

(1) Invitees - inspect for unknown dangers, make safe or warn, & prevent harm from active operations

(2) Licensees - warn of known latent defect & use reasonable care in active operations

(3) Known or anticipated trespassers - warn of known artificial dangers & use reasonable care in active operations

(4) Unknown or unanticipated trespassers - no duty

Question 25

What are the two intervening causes?

Answer 25

(1) Foreseeable cause - foreseeable intervening act or force that contributes to plaintiff’s harm. Defendant remains liable.

(2) Superseding cause - unforeseeable intervening act or force that breaks chain of causation between defendant’s tortious conduct & plaintiff’s harm. Defendant is not liable.

Question 26

What are the three types of products defects to impose strict product liability?

Answer 26

The plaintiff must prove that a commercial supplier (manufacturer, wholesaler, retailer) produced or sold a defective product that caused the plaintiff harm.

(1) Manufacturing defect - deviation from intended design

(2) Design defect - risk utility test = design creates a foreseeable risk of physical harm and risk could have been mitigated by a reasonable alternative design

(3) Inadequate warning - no reasonable instructions or warnings about risks of harm.

Question 27

When may trespass be excused?

Answer 27

A defendant is generally liable for trespass if the defendant intentionally entered the plaintiff’s property w/o permission.

However, a trespass may be excused by either of the following privileges:
(1) Public necessity - an intrusion that is, or reasonably appears to be, necessary to protect a large number of people from a public disaster.
(2) Private necessity - an intrusion that is, or reasonably appears to be necessary to protect oneself, third parties, or property.

Question 28

What are nondelegable duties?

Answer 28

(1) Maintain safe conditions on premises open to public
(2) Safely perform activités that:
(a) are abnormally or highly dangerous
(b) infringe on private property right
(c) are regulated by law; or
(d) are conducted in public place