Torts

Question 1

Assault Elements

Answer 1

(i) the defendant intends to cause the plaintiff to anticipate an imminent, and harmful or offensive, contact with the plaintiff’s person and (ii) the defendant’s affirmative conduct causes the plaintiff to anticipate such contact with the plaintiff’s person. A plaintiff must be aware of or have knowledge of the defendant’s act.

Question 2

When will a person be liable for the criminal acts of another

Answer 2

While a person is generally not liable for the criminal acts of another, and has no duty to prevent such acts, a person who places another in peril is under a duty to exercise reasonable care to prevent further harm by rendering care or aid.

Question 3

Negligence Elements

Answer 3

Duty, breach, causation, and damages.

The plaintiff must prove that the defendant’s actions were both the actual cause (also known as the factual cause or “cause in fact”) and the proximate cause (also known as the legal cause) of the plaintiff’s injury.

Actual (“but-for”) causation establishes that the incident would not have occurred but for the negligent act.

Proximate (legal) causation establishes that the injury was within the “scope of liability” of the defendant’s conduct. Under the majority rule, a defendant is liable for reasonably foreseeable consequences resulting from his conduct.

Question 4

When does an intervening cause cut off liability

Answer 4

A foreseeable intervening cause, such as the negligence of a rescuer, will not cut off a defendant’s liability.

As a general guideline, negligent intervening acts are usually regarded as foreseeable and do not prevent the original defendant from being held liable to the plaintiff.

Question 5

Who can be sued under Strict Product Liability

Answer 5

The manufacturer, retailer, or other distributor of a defective product may be liable for any harm to persons or property caused by such product under a strict products liability theory. The defendant must be in the business of selling or otherwise distributing products of the type that harmed the plaintiff. This includes the manufacturer, distributor, and the retail seller of the product. When a component is defective, the commercial supplier of the component is also subject to strict products liability.

Question 6

Defamation Rule

Answer 6

A plaintiff may bring an action for defamation when the defendant’s defamatory language regarding the plaintiff is published to a third party and subsequently damages the plaintiff’s reputation. Publication is the intentional or negligent communication to a third party (i.e., to someone other than the person being defamed) who understands its defamatory nature.

Question 7

Affirmative duty to act

Answer 7

Question 8

Principal’s negligence liability involving independent contractor

Answer 8

Question 9

Tortious interference with contract

Answer 9

Question 10

Trespass to chattels v. Conversion

Answer 10

Question 11

Defense of property use of force rule

Answer 11

Question 12

Assumption of risk scope

Answer 12

Question 13

Protect others from self-harm

Answer 13

Question 14

Res Lpsa loquitur

Answer 14

Question 15

Direct and vicarious negligence liability

Answer 15

Question 16

Slander per se requires proof of damage or not

Answer 16

Question 17

Battery Elements

Answer 17

(i) intends to cause contact with the plaintiff’s person, (ii) the defendant’s affirmative conduct causes such contact, and (iii) that contact causes bodily harm or is offensive to the plaintiff.

proof of actual harm is not required to recover for battery.

Question 18

Presumed/implied consent

Answer 18

a defendant is not liable for otherwise tortious intentional conduct—e.g., battery—if (i) under prevailing social norms, the defendant is justified in engaging in the conduct in the absence of the plaintiff’s actual or apparent consent, and (ii) the defendant has no reason to believe that the plaintiff would not have actually consented to the conduct if the defendant had requested the plaintiff’s consent.

Question 19

False imprisonment element

Answer 19

(i) the defendant intends to confine the plaintiff within a limited area, (ii) 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 (iii) the plaintiff is conscious of the confinement. In a minority of jurisdictions and under the Restatement Third, a plaintiff who was not conscious of the confinement may still recover if the plaintiff was harmed by the confinement.

Question 20

Citizen’s arrest privilege

Answer 20

In most jurisdictions, a private actor (i.e., an individual who is not an on-duty law enforcement officer) is privileged to use force (e.g., commit a battery or false imprisonment) to make an arrest in the case of a felony if the felony has in fact been committed and the arresting party has reasonable grounds to suspect that the person being arrested committed it. The privilege, which is often referred to as “citizen’s arrest,” is recognized if the private actor makes a reasonable mistake as to the identity of the felon but not as to the commission of the felony.

Question 21

Professionals’ duty of care requirement

Answer 21

A professional person, like an electrician, is expected to exhibit the same skill, knowledge, and care as an ordinary professional in the same community.

Question 22

Is a defendant responsible for damages resulting from plaintiff’s pre-exsiting physical mental conditions?

Answer 22

Under the “thin-skull” or “eggshell-plaintiff” rule, the defendant is liable for the full extent of the plaintiff’s injuries due to the plaintiff’s pre-existing physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable. Attorney’s fees in a personal injury suit are not recoverable.

Question 23

Modified comparative fault

Answer 23

an injured party may recover damages only if he/she is less than 50% at fault for the injury or damages.

Question 24

Pure several liability

Answer 24

each tortfeasor is liable only for his proportionate share of the plaintiff’s damages

Question 25

When is a duty of care owed

Answer 25

In general, a duty of care is owed to all foreseeable persons who may foreseeably be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances.

Question 26

Does psychotherapist have a duty to warn third parties that might be harmed by his/her patients

Answer 26

Generally, there is no duty to act affirmatively, even if the failure to act appears to be unreasonable. However, the special relationship between a psychotherapist and a patient can impose upon the therapist an affirmative duty to act to protect a third party. When a patient has made credible threats of physical violence against a third party, the psychotherapist has a duty to warn the intended victim. The threat must be a serious threat of physical violence against an ascertainable intended victim, determined by the objective standard of a reasonable psychotherapist in the same circumstance.

Question 27

Is a defendant’s mental or emotional disability considered in determining whether his conduct is negligent?

Answer 27

A defendant is presumed to have average mental abilities and the same knowledge as an average member of the community. A defendant with a mental or emotional disability is not immune from tort liability, and the defendant’s own mental or emotional disability is not considered in determining whether his conduct is negligent.

But physical disability yes

Question 28

Abnormally dangerous activity

Answer 28

A defendant engaged in an abnormally dangerous activity may be held strictly liable for personal injuries and property damage caused by the activity, regardless of the precautions taken to prevent the harm. An abnormally dangerous activity is one that (i) creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised; and (ii) is not commonly engaged in. 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. As is the case with superseding causes in negligence, the defendant’s liability can be cut off by unforeseeable intervening causes.

Question 29

Private necessity elements

Answer 29

The privilege of necessity is available to a person who enters or remains on the land of another to prevent serious harm, which typically is substantially more serious than the invasion or interference itself. Private necessity is a qualified privilege to protect an interest of the defendant or a limited number of other persons from serious harm when the interference is reasonably necessary to prevent such harm. Despite this privilege, the property owner is entitled to recover actual damages, but cannot recover nominal or punitive damages nor use force to eject the defendant.

Question 30

Negligence per se occurs when

Answer 30

when a defendant violates a criminal or regulatory statute that imposes a specific duty on the defendant, and the act proximately caused the kind of harm the statute was designed to prevent. Additionally, the plaintiff must be in the class of people intended to be protected by the statute.

However, a defendant may be able to avoid liability under a negligence per se theory by proving that compliance with the statute or regulation would have involved a greater risk of physical harm to the defendant or others than noncompliance would have (e.g., it was an emergency).

Question 31

When will a defendant not be liable under intervening/superseding cause theory

Answer 31

Generally, the defendant is liable for harm caused by foreseeable intervening forces that occur between the time of the defendant’s act and the plaintiff’s injury. When an intervening force is unforeseeable, a defendant will still be liable for his acts (or omissions) if the result was nevertheless foreseeable. If both the intervening cause and the harm are unforeseeable, however, the intervening cause becomes a superseding cause, and the defendant’s liability is cut off by that superseding cause.

Question 32

Component supplier strict liability

Answer 32

The commercial supplier of a component, such as sand used in manufacturing cement, is subject to liability if the component itself is defective, but not when the component is incorporated into a product that is defective for another reason.

However, the commercial supplier of a component may be liable if that supplier substantially participates in the process of integrating the component into the design of the assembled product and that product is defective due to the integration.

Question 33

Negligent Misrepresentation

Answer 33

Question 34

Libel rule

Answer 34

Question 35

Is pecuniary loss required fore slander

Answer 35

Yes but not for libel

Question 36

Trade libel

Answer 36

Question 37

IIED element

Answer 37

Question 38

Is contributory negligence gonna reduce damages in strict liability cases (product)

Answer 38

Yes

Question 39

Attractive nuisance doctrine

Answer 39

Question 40

IIED doctrine of transferred intent

Answer 40

The traditional doctrine of transferred intent does not apply to intentional infliction of emotional distress when the defendant intended to commit a different intentional tort (such as a battery) against a different victim. However, transferred intent may apply to intentional infliction of emotional distress if, instead of harming the intended person, the defendant’s extreme and outrageous conduct harms another.

Question 41

Public nuisance action by private citizen

Answer 41

In order for a private citizen to successfully maintain a public nuisance action, that person must suffer a special injury that is different in kind to that suffered by the general public.

Does not need ownership interest. Private nuisance needs this

Question 42

Attractive nuisance

Answer 42

In order for the attractive nuisance doctrine to apply, the landowner must know or have reason to know that the artificial condition is located in a place that children are likely to trespass.

does not require that the child be enticed onto the property by the presence of the condition

Question 43

Wild animal

Answer 43

strict liability generally does not apply to injuries that do not result from the dangerous propensities of the animal.

Question 44

Negligence per se

Answer 44

When a criminal or regulatory statute (or an administrative regulation or municipal ordinance) imposes a penalty for violation of a specific duty, if the defendant violates the statute by failing to perform that duty, he is liable in negligence to anyone in the class of people intended to be protected by the statute for any harms of the type the statute was intended to protect against. This is known as negligence per se. Once negligence per se is established, in order for the defendant to be liable, the plaintiff must prove that his injuries were proximately caused by the defendant’s violation of the statute.

Question 45

Does P’s negligence bar recovery under res ipsa loquitor

Answer 45

No

Question 46

multiple substantial factor defendants

Answer 46

Need not all be joined to be sued

Question 47

Pure economic harms

Answer 47

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

Question 48

Jury instruction on assumption of risk

Answer 48

In a comparative negligence jurisdiction, assumption of the risk is not recognized as a separate defense—it has been merged into the comparative-fault analysis and merely reduces recovery.

Question 49

Assumption of risk is a full defense in strict liability?

Answer 49

Yes

Question 50

Defamation action when dead?

Answer 50

A deceased person cannot legally be defamed. The estate of the deceased official cannot maintain an action for defamation because the defamatory statement was made after the official’s death.

Question 51

Defenses to negligence per se

Answer 51

Question 52

Private necessity damages

Answer 52

However, a person who enters upon another’s property or interferes with another’s personal property due to private necessity must still pay for actual damages caused

Question 53

Direct verdict against negligence?

Answer 53

The court may grant a directed verdict against a party in a negligence action if the court finds that there is insufficient evidence for a jury to reasonably find for that party.

Question 54

When does the bulge provision apply

Answer 54

the so-called “bulge provision,” a federal court has personal jurisdiction over a party who is served within a U.S. judicial district and not more than 100 miles from where the summons is issued, even if state law would otherwise not permit such service. This special rule applies to only two types of parties: a third-party defendant who is joined under Rule 14 and a required party who is joined under Rule 19.

Question 55

A person who comes to the aid of another is a foreseeable plaintiff?

Answer 55

Yes If the defendant negligently puts either the rescued party or the rescuer in danger, then he is liable for the rescuer’s injuries.

Question 56

Physician’s obligations

Answer 56

Physicians are under a specific obligation to explain the risks of a medical procedure to a patient in advance of a patient’s decision to consent to treatment. Failure to comply with this “informed consent” doctrine constitutes a breach of the physician’s duty owed to the patient and is actionable as medical malpractice (medical negligence).

Question 57

Liability for invasion of privacy exceptions

Answer 57

Question 58

Intermeddling

Answer 58

Question 59

Trespass of land

Answer 59

Trespass to land occurs when the defendant’s intentional act causes a physical invasion of the land of another. The defendant need only have the intent to enter the land, not the intent to commit a wrongful trespass. Mistake of fact is not a defense because the defendant need not know that the land belongs to another.

Question 60

Fireflighter’s rule

Answer 60

A person who comes to the aid of another is generally a foreseeable plaintiff. If a defendant negligently puts the rescuer or himself in any danger, he is liable for the rescuer’s injuries. 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 arises from a risk inherent in the job (“firefighter’s rule”).

Question 61

physicians are generally held to a national standard of care?

Answer 61

Yes

Traditionally, a professional person has been expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community; now, the majority of jurisdictions hold physicians to a national standard of care. Here, even if the new test was not standard in the local community, the fact that the test has become standard nationally means that the physician fell below the national standard of care by failing to administer it.

Question 62

exoneration would be required only if

Answer 62

the plaintiff could establish that all of the defendants had been negligent, in which case each one would have to exonerate himself. If the plaintiff’s harm was caused by one of a small number of defendants, each of whose conduct was tortious (negligent), and all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause-in-fact of the plaintiff’s harm.

Question 63

Is economic harm recoverable in negligence actions?

Answer 63

Just Compensation

Although the taking is valid, Michelle must be paid just compensation. This is interpreted to mean fair market value (“FMV”), which is the reasonable value of the property at the time of the taking. FMV is measured in terms of the loss to the owner, not the benefit to the government, and is usually determined by looking at comparable sales in the neighborhood.

Just Compensation

Although the taking is valid, Michelle must be paid just compensation. This is interpreted to mean fair market value (“FMV”), which is the reasonable value of the property at the time of the taking. FMV is measured in terms of the loss to the owner, not the benefit to the government, and is usually determined by looking at comparable sales in the neighborhood.

Question 64

Medical professional’s liability to battery

Answer 64

Question 65

NIED damage requirement

Answer 65

Question 66

Nondelegable duties

Answer 66

Question 67

Federal law determines the effects under the rules of res judicata of a judgment of a federal court?

Answer 67

However, federal common law requires that the claim-preclusive effect of a judgment by a federal court sitting in diversity must be governed by the law of claim preclusion of the federal court’s forum state, unless the state law is incompatible with federal interests.

Question 68

Trespass damages

Answer 68

Trespass to land occurs when the defendant’s intentional act causes a physical invasion of the land of another. The defendant need only have the intent to enter the land, not the intent to commit a wrongful trespass. No proof of actual damages is required; nominal damages may be awarded. However, the privilege of necessity is available to a person who enters or remains on the land of another (or interferes with another’s personal property) to prevent serious harm, which typically is substantially more serious than the invasion or interference itself. Private necessity is a qualified privilege to protect an interest of the defendant or a limited number of other persons from serious harm when the interference is reasonably necessary to prevent such harm. Despite this privilege, the property owner is entitled to recover actual damages, but cannot recover nominal or punitive damages nor use force to eject the defendant.

Question 69

Trespass need direct physical intrusion?

Answer 69

Trespass to land occurs when a defendant’s intentional conduct causes a physical invasion of the land of another. The defendant need not personally enter onto the plaintiff’s land; intentionally flooding the plaintiff’s land, throwing an object (e.g., a rock) onto it, or intentionally emitting particulates into the air over the land will each suffice. A trespass may be committed on, above, or below the surface of the plaintiff’s land.

Question 70

Medical Malpractice Res ipsa loquitur

Answer 70

Question 71

Negligent misrepresentation

Answer 71

Question 72

Assumption of risk to strict liability crimes

Answer 72

Question 73

Negation of actual consent

Answer 73

Question 74

NIED Zone of danger

Answer 74

Question 75

NIED Bystander theory

Answer 75

Question 76

Assumption of risk public policy limitations

Answer 76

Question 77

Different types of trespass requirements

Answer 77