Torts

Question 1

Standard of care

Answer 1

reasonably prudent person under the same or similar circumstances

For children - what a child of similar age, intelligence, and experience would do in the same or similar circumstances

Question 2

Respondeat Superior

Answer 2

Under the doctrine of respondeat superior, employers are vicariously liable for the torts committed by their employees within the scope of the employees’ employment

Question 3

Independent Contractors

Answer 3

Generally, individuals who hire independent contractors are not vicariously liable for the torts for the contractors.

In general, courts look at a variety of factors to determine if someone is an independent contractor, including the (1) extent of and right to control the work, (2) the length of the working relationship, (3) the source of any equipment, and (4) the frequency of payment.

Question 4

Nondelegable duty - vicarious liability

Answer 4

in general, employers are liable for the acts of an independent contractor when a non-delegable duty applies. In a minority of jurisdictions, the duty to comply with a statute is a non-delegable duty

Question 5

Private nuisance

Answer 5

Substantial or unreasonable interference with another’s land

substantial = offensive, inconvenient, or annoying to a normal, reasonable person

unreasonable = renders land unavailable for ordinary use or enjoyment AND is either (1) a per se nuisance (statutory violation), (2) caused by actor’s failure to exercise reasonable care with respect to risk of interference, (3) does not comport with local expectations or customs, (4) causes physical damage, or (5) is almost entirely motivated by malice.

Potential defenses (that do not usually work) - coming to the nuisance (the fact a person moved next to a nuisance about which they already knew may be considered by the jury in determining if the plaintiff can recover for the nuisance) or regulatory compliance

Question 6

Trespass

Answer 6

A defendant’s intentional act causes a physical invasion of another’s land

Damages = actual + nominal

Remember defenses of necessity (still owe actual damages if private necessity)

Question 7

Public nuisance

Answer 7

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

Recovery for private party only available if the private party’s harm is distinct from that of the rest of the community

Question 8

IIED

Answer 8

Defendant intentionally or recklessly engages in extreme or outrageous conduct that causes plaintiff severe emotional distress. Extreme or outrageous conduct = conduct that exceeds the bounds of human decency so as to be intolerable in civilized society.

Threshold for what constitutes extreme or outrageous conduct is lowered when: (1) defendant is in a position of authority over plaintiff, or (2) defendant knows plaintiff is in a group with heightened sensitivity (young children, pregnant women, or elderly persons).

Transferred intent applies when bystander is an immediate family member and defendant knows that family member is present to perceive of defendant’s extreme or outrageous conduct

For public figures, when IIED is caused by publication of a false statement, need to prove actual malice

Question 9

False imprisonment

Answer 9

Defendant intends to confine plaintiff, defendant’s actions directly or indirectly cause such confinement, and plaintiff is conscious of such confinement or harmed by it.

Question 10

Trespass to chattels vs conversion

Answer 10

Factors courts consider in determining whether a use/dispossession is trespass to chattels or conversion = (1) extent/duration of use or dispossession, (2) extent of damage, (3) defendant’s good-faith, and (4) defendant’s intent.

Question 11

Traditional landowner duties

Answer 11

No duty to undiscovered trespassers

Duty to warn of concealed, dangerous, artificial conditions - to known or discovered or anticipated trespassers

Duty to correct and warn of concealed dangers (but no need to inspect for them) + duty to exercise reasonable care in conducting activities on land - licensee

Duty to inspect property and protect invitee from unreasonably dangerous conditions + duty to exercise reasonable care - invitees (note this duty is non-delegable)

Question 12

Modern approach

Answer 12

Duty to exercise reasonable care for all entrants (may take into consideration that someone is a trespasser)

But no duty to flagrant trespassers

Question 13

Attractive Nuisance doctrine

Answer 13

Landowner is liable for any attractive nuisance on his or her property, defined as (1) an artificial condition in an area where children are likely to trespass, (2) that poses an unreasonably high risk of death or serious bodily harm to children, (3) wherein children are too young to appreciate the harm, (4) and for which the utility of the artificial condition is slight compared to harm, and (5) the landowner fails to exercise reasonable care to prevent children from harm.

Question 14

Standard of care for professionals

Answer 14

The same skill, knowledge, and care as another professional (of the same occupation) in the community (for doctors, not based on community standard but rather national standard).

Question 15

Apparent agency (independent contractors)

Answer 15

An independent contractor will be treated as an employee if the injured person accepted the IC’s services under the reasonable belief that IC was acting as an agent of another

Question 16

Abnormally dangerous activities

Answer 16

An individual may be held strictly liable for personal injury or property damage resulting from an abnormally dangerous activity. An abnormally dangerous activity is one that (1) poses a foreseeable and highly significant risk of harm even when reasonable care is exercised, and (2) is not commonly engaged in. Other factors considered by courts are the gravity of harm caused by the activity, and the utility of the activity in the community.

Scope of liability only extends to those harms which arise from the risks which make the activity abnormally dangerous in the first place.

Cannot recover based purely on economic harm.

Assess actual cause and proximate cause

Question 17

Wild Animals + Abnormally dangerous animals - strict liability

Answer 17

Wild animals = animals that as a species are not customarily domesticated

Owner of wild animal is strictly liable for any harm that arises out of a dangerous propensity that is characteristic of that animal that the owner knows of or has reason to know

Owner of wild animal also strictly liable for injuries suffered as a result of another’s fearful reaction to the sight of an unrestrained wild animal

Owner of an abnormally dangerous animal is strictly liable for any injuries caused as a result of known dangerous propensities of that animal.

Always mention dog-bite statutes (wherein owner is strictly liable for injuries caused by dog or other domesticated animals)

Question 18

Trespassing Animals

Answer 18

Owner is strictly liable for reasonably foreseeable damage caused by trespassing animals onto other’s land.

Owner is only negligent for household pets trespassing onto other’s land, or other owned animals wandering onto public roads.

Question 19

Products liability

Answer 19

A manufacturer or commercial retailer is strictly liable for product defects (design defects, manufacturing defects, and failure to warn) if (1) the defect existed when the product left the manufacturer/retailer’s control (2) the product causes harm to a buyer when the buyer uses the product in a foreseeable way.

Always assess actual and proximate cause for strict liability

Analysis:

Absolute duty - manufacturers, distributors, and commercial retail sellers are under an absolute duty to provide a safe product (as opposed to casual sellers)

Defective Product
Actual cause
Proximate cause
Harm
Defenses

Question 20

Design defect

Answer 20

Risk-utility test - there is no other reasonable alternative design (that is not cost prohibitive) that would have a more favorable risk/benefit ratio.

Consumer expectation test - design defect exists if product is less safe than an ordinary consumer would expect.

Question 21

Defamation

Answer 21

defendant makes (1) a defamatory statement (2) of or concerning plaintiff, (3) that is published to a 3rd party who understood its defamatory nature, resulting in (4) reputational harm to the plaintiff

If P is (1) a public figure or (2) a private figure but the statement is one of public concern, P must prove falsity as part of a prima facie case of defamation.

Public figure = someone with influence in society

Public official = someone in a position of control over a government office

In cases involving public figure/public official - D only liable if D acted with actual malice (knowing or reckless disregard for the truth)

In cases involving statements of public concern - P must prove that D acted with negligence with respect to the truth.

In cases involving a private individual and statements of private concern, most states require negligence but it does not appear to be a constitutional requirement.

Question 22

Wild animal

Answer 22

animal that is not by custom devoted to the service of mankind in the place where it is kept

Question 23

Libel

Answer 23

Written defamation. P can recover actual and nominal damages

Question 24

Slander

Answer 24

P can only recover special damages for slander per se - that is where the slander puts P’s character into question by (1) accusing P of severe sexual misconduct, (2) accusing P of carrying a loathsome disease, (3) placing P’s fitness for a profession in question, or (4) accusing P of a serious crime

Question 25

Defamation defenses

Answer 25

Absolute privilege - judicial proceedings, legislative proceedings, between spouses, and in required publications by radio/TV of other’s defamatory statements

Conditional privilege -
in the interest of the defendant (D defends his or her own reputation), in the interest of the recipient of the statement, and in the public interst

Question 26

False Light

Answer 26

Defendant makes a (1) public statement about P that (2) places P in a false light which (3) would be highly offensive to a reasonable person.

Question 27

Intrusion upon seclusion

Answer 27

Defendant intentionally invades upon P’s privacy in a manner that would offensive to a reasonable person

Question 28

Appropriation of the right to publicity

Answer 28

D misappropriates P’s likeness without P’s consent for D’s own gain

Question 29

Assault

Answer 29

A defendant is liable for assault if he intentionally causes the plaintiff to anticipate an imminent, and harmful or offensive, contact with the plaintiff’s person. The defendant’s affirmative conduct must cause the plaintiff to anticipate such contact with the plaintiff’s person.

Threats of future harm and threats from a defendant who is physically far from the plaintiff are usually insufficient, but may satisfy the imminence requirement depending on the circumstances of the particular case.

Always analyze D’s intent, D’s conduct, and imminence!

Question 30

Trespass to Chattels

Answer 30

Trespass to chattel requires that the defendant intentionally interfere with the plaintiff’s right of possession by either dispossessing the plaintiff of, or intermeddling with, the plaintiff’s chattel.

The defendant must only intend to commit the act that interferes; intent to cause damage is not necessary.

Question 31

Insanity defense - intentional torts

Answer 31

Mental impairment is generally no defense to an intentional tort. So long as the defendant was able to form the requisite intent to do the act, he can be liable.

Question 32

Battery

Answer 32

Battery occurs when (1) the defendant intends to cause a contact with the plaintiff’s person, (2) the defendant’s affirmative conduct causes such a contact, and (3) that contact causes bodily harm or is offensive to the plaintiff

Contact with anything connected to the plaintiff’s person qualifies as contact with the plaintiff’s person for the purposes of battery. Additionally, the harmful or offensive contact need not be with the defendant himself and can be indirect

Also assess causation (but not actual/proximate cause, just whether the harm would be in the scope of liability)

Question 33

Defense of others

Answer 33

One is justified in using reasonable force in defense of others upon a reasonable belief that the defended party would be entitled to use self-defense, i.e., that the person was in danger of the imminent use of force.

The amount of force used in defense must be proportionate to the anticipated harm

The defendant is not liable for acting on a mistaken belief that the third party is in danger as long as his belief is reasonable

Question 34

Transferred intent

Answer 34

When a D intends to harm person 1, but instead harms person 2, person 2 can bring a battery claim against D because the intent to harm person 1 transfers to person 2. BUT, note, person 1 cannot bring a battery claim. Instead, person 1 can bring an assault claim.

Question 35

Manufacturing defect

Answer 35

A manufacturing defect is a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. The test for the existence of such a defect is whether the product conforms to the defendant’s own specifications.

Question 36

Failure to warn

Answer 36

A failure-to-warn defect exists if there were foreseeable risks of harm—not obvious to an ordinary user of the product—that could have been reduced or avoided by providing reasonable instructions or warnings.

Question 37

Negligence per se

Answer 37

Occurs as a result of breach of statutorily-imposed duty. Elements: (1) statute enacted to protect a class of persons from a certain type of harm, (2) D is in violation of statute, (3) D’s violation harms a person in the protected class, (3) the harm is the type of harm the statute is meant to prevent

Still need to apply causation

Question 38

Strict liability -

Answer 38

Abnormally dangerous activities, abnormally dangerous animals, wild animals with dangerous propensities, products

Need to show causation (actual and proximate cause)

Question 39

Products liabilities

Answer 39

Analyze under strict liability, negligence, and express or implied warranties

Question 40

Intentional Misrepresentation

Answer 40

Basically same as in contracts

D knowingly or recklessly misrepresents a material fact with the intent to induce P’s reliance and the P justifiably relied on that misrepresentation.

P’s harm must be pecuniary loss to recover!!

Question 41

But-for causation

Answer 41

But-for causation test may not work when (1) there are multiple tortfeasors, and each tortfeasor’s tortious conduct could independently produce the harm, OR (2) there are multiple tortfeasors but the P does not know tortfeasor’s conduct caused the harm.

For (1), apply substantial factor test. For (2), apply alternative causation

Substantial factor is used when there are multiple simultaneous causes of harm. Alternative liability is used when the harm was caused by only one person’s tortious conduct, but it is unclear which person’s tortious conduct.