Torts

Question 1

a principal is vicariously liable for a tort committed by his agent if the tort was committed within the scope of an agency relationship

Answer 1

an agency relationship exists when both parties agree that the agent will act on the principal’s behalf and subject to the principal’s control (employer-employee)

Question 2

someone is an employee if…

Answer 2

whether persons physical conduct in the perforamnce of the service is subject to employer’s control/right to control

factors:
level of skill required to perform the work,

who supplies the insturmentaites,

durating of the relationship, and

whetherh the work is part of the principal’s regular business

Question 3

appropriation of name or likeness

Answer 3

unauthroized use of p’s name or likeness for personal benefit

Question 4

D is privileged to publicly disclose private facts about Ps private life if

Answer 4

1) dislcosure is in a fair and accurate report of a public meeting; and

2) that meeting dealt w/ matters of legit public interest

results in damages

Question 5

publicity in a false light

Answer 5

publicity given to false info that places p in false light

false light would be highly offensive to a reasonable person

publication is made w/ actual malice

results in damages

Question 6

abusing a position of authority amounts to extreme and outrageous conduct for IIED claim when

Answer 6

the conduct goes far beyond what is necessary to exercise that authority

Question 7

Misappropriation of the right to publicity claim

Answer 7

p must allege d used P’s indentity (name, likeness, item closely associated w/ P) without authorization to receive a benefit

Question 8

bystander rule

Answer 8

permits recover if P was closely related to V,

was lcoated near the scene of the accident, and

suffered shock resulting fromt he contemporaneous and sensory observance of the accident

Question 9

Assault occurs when

Answer 9

1) d intends to cause the P to anticipate an imminent, and harmful or offensive contact w/ the P’s person, and

2) the D’s affirmative contact causes the P to anticipate such contact

Question 10

trespasser

Answer 10

intentionally enters land without permission/priv to do so

Question 11

land owner’s duty to trespassers

Answer 11

known or frequent trespassers - warn of known articficial dangers and use resonable care in active operations

unknown or unacticipated trespassers - no duty

Question 12

licensee

Answer 12

enters land w/ permission

social guest

Question 13

Duty to help someone who comes onto land

Answer 13

if in light of all the surrounding circumstances, a reasonable person would interpret the possessor’s words or conduct as manifesting that he is in fact willing for another to enter upon his land, then the entrant is a licensee, not a trespasser.

Question 14

land owner’s duty to licensee

Answer 14

warn of known latent dangers and use reasonable care in active operations

Question 15

invitee

Answer 15

enters land open to public (churchgoer)

enters land for business purpose (customer)

Question 16

land owner’s duty to invitee

Answer 16

inspect for unknown dangers

make premises safe or provide adequate warnings

prevent harm from active operations

Question 17

res ipsa loquitiur does not apply to

Answer 17

a temporary danger that could have arisen immediately before the plaintiff was harmed (eg, spill)

Question 18

Res ipsa loquitur

Answer 18

when P cannot establish direct proof, the trier of fact to infer that the harm suffered by P was caused by negligence of D when:

1) the event is of a kind which ordinarily doesnt occur in the absence of negligence,

2) other resposnsible causes, including the conduct of P and third persons are sufficently eliminated by the evidence, and

3) the indicated negligence is within the scope of the D’s duty to P

commonly used in actions against medical providers when a patient suffers an unexplained injury

Question 19

libel

Answer 19

a defamatory statement that appears in written or other physical form.

p must prove:

• the D knowingly made a false statement about the P or,
• negliently failed to determine its falsity,
• the type of statement would tend to harm the p’s reputation,
• the d intentionally or negligently communicated that statement to a third party (key element*)

*reputational harm can be presumed bc it libel is more permanent + easily spread than slander

Question 20

___ is a complete defense to defamation

Answer 20

consent (apparent, actual, or implied)

Question 21

several juris extend liability to social hosts who serve alcohol to visibly intoxicated guests

Answer 21

social host liability is not recongized by common law which considers the d’s consumption - not the host’s provision - of alcohol to be the proximate cause of the p’s injury

Question 22

an affirmative duty to disclose a material fact exists if the p is

Answer 22

1) in a fiduciary relationship with the d,

2) likely to be misled by the d’s prior statements, or

3) mistaken about a basic fact of the transaction that the defendant is aware of and should disclose (minority of jurisidctions)

Question 23

fraud can occur when

Answer 23

a defendant actively misrepresents or conceals a material fact

Question 24

intentional misrepresentation

Answer 24

1) D knowingly or recklessly misrepresents a material fact w/ the intent to induce P’s reliance; and

2) P reasonably relies on the misrepresentation and suffers pecuniary loss a a result

Question 25

negligent misrepresentation

Answer 25

person who supplies false/incorrect information in the course of business, profession, or employment or in a transaction in which he has a monetary interest

Question 26

defamation requires proof that

Answer 26

1) D knowingly made a false statement about P or should have know that the statement was false

2) that type of statement would tend to harm the p’s reputation

3) the D intentionally or negligently communicated that statement to a third party

4) statement caused P special harm or was slanderous per se

Question 27

defamatory statement repeated by 3rd party

Answer 27

liable for defamation even if republishers identifies the originator of the statement and expresses a lack of knowledge as to its truthfulness

Question 28

slander per se

Answer 28

statement accusing p of: serious crime, conduct adversely affecting occupation, serious sexual misconduct, having loathsome disease

Question 29

traditional contributory negligence juris

Answer 29

bars recovery when p voluntarily exposed himself to known risk

Question 30

contributory negligence is not a defense to

Answer 30

strict liablity

Question 31

pure comparative negligence juris

Answer 31

when p’s pwn negligence contributes to his harm, p’s recovery is reduced by his proporiationte share of fault

Question 32

joint and several liability

Answer 32

when multiple Ds cause P indivisible harm, the p can recover total amount of damages from any D (who can then sue the others for contribution)

Question 33

proximate (legal) cause

Answer 33

p’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 harm

Question 34

actual cause

Answer 34

but for the d’s conduct, the p would not have been harmed

Question 35

where multiple forces combine to cause p’s injury and any one alone would have been sufficent to cause the injury, the test for actual causation is

Answer 35

whether the D’s conduct was a substantial factor in causing the injury

Question 36

intervening actors/events

Answer 36

events that produce harm different in kind from that which one would normally anticipate may break the chain of causation and lead a court to conclude that the defendant’s acts are not the proximate cause of the plaintiff’s injury

courts typically analyze both their foreseeability and their degree of dependence on the defendant’s negligence

Question 37

liability for invasion of privacy based on public disclosure of public facts arises when

Answer 37

1) D publicly disclosed facts about the p’s private life,

2) dislcosure would be highly offensive to a reasonable person,

3) disclosed facts are not of legit public interest, and

4) disclosure caused P harm

Question 38

D is privileged to disclose private facts if

Answer 38

1) disclosure was in a fair and accurate report of a public meeting, and

2) the meeting dealt with matters of legit public interest

Question 39

duty of care

Answer 39

reasonably prudent person under the circumsntaces (one in D’s same position, w/ same info, and level of competence)

less may be expected of an RPP acting in an emergency

Question 40

for conversion, p must prove that

Answer 40

1) D intentionally exerted dominion and control over P’s chattel, and

2) the interference was so severe that P should recover the FMV of the chattel at the time of the conversion

Question 41

trespass to chattels

Answer 41

minor intentional interference w/ p’s right to control chattel

liable for actual damages (cost of repair/loss of use)

Question 42

___ is a defense to battery (and other intentional torts) when…

Answer 42

consent;

1) P is willing for the D’s conduct to occur, and

2) that conduct is within the scope of the p’s consent.

actual consent is valid despite p’s substanital mistake regarding the nature of invasion of his interest unless D caused the mistake by misrep or knew about the mistake

*doesnt need to be communicated to actor

Question 43

presumed consent to contact exists when

Answer 43

1) under prevailing social norms, the D is justified in engaging in the conduct in the absence of P’s actual or apparent consent; and

2) D had no reason to believe P wouldnt have actually consented had D requested P’s consent

Question 44

actual consent to a contact is valid despite P’s substantial mistake regarding nature of the invasion of his interests unless

Answer 44

1) caused the mistake by affirmative misrep or fraud; or

2) knew about the mistake

Question 45

consent to battery in sporting event

Answer 45

Ps participation in an athletic activity may amount to apparent or presumed consent to battery especially if

1) D’s conduct doesnt viol a safety rule of the sport,

2) the conduct typically occurs during the activity, and/or,

3) conduct doesnt involve singifincant risk of very serious injury/death

Question 46

a bodily contact is offensive if

Answer 46

it offends a reasonable sense of personal dignity

Question 47

a commerical seller (manfuactuer, wholesaler, retailer) is subject to strict products liability when

Answer 47

1) it sells a defective product and,

2) product’s defect harms a foreseeable P (purchaser, rescuer)

(harmful ingredient in food, prodcuts that dont meet specifications)

applies to seller even if they had no control over the design/manufacture of a product

Question 48

a producer is strictly liable whenever

Answer 48

the product departs from its intended design even though all possible care was exercisable in the preparation and marketing of the product

Question 49

false imprisonment

Answer 49

occurs when D confines P within a limited area and P is conscious of the confinement

Question 50

false imprisonment w/ D as a private citizen

Answer 50

a D who is a private citizen (not a cop) is priv to confine/arrest a P when:

1) a felony has been committed, AND

2) D reasonably suspects P committed felony

Question 51

merchant’s privilege is a defense to false imprisonment when

Answer 51

1) D is a merchant or a merchant’s employee or agent

2) D reasonably believes that the P has wrongfully taken or is attempting to take merchandise from its premises or failed to pay for personal property or services rendered there,

3) detainment occurs on, or in the immediate vicinty or, the merhcant’s premises, and

4) detainment is conducted for a reasonable amount of time and in a reasonable manner to investigate the matter, recpature the property, or faciliate the p’s arrest

Question 52

deficient mental capacity is not a defense to liability for intentional torts but is considered in

Answer 52

determining whether the defendant acted w/ the requisite intent

battery requires the intent to cause contact w/ the p’s person

Question 53

punitive damages cannot be recovered for

Answer 53

negligent conduct

they’re for intentional or reckless torts

Question 54

a principal is generally not vicariously liable for torts committed by his independent contractor. however,

Answer 54

a princ who retains control over any part of the independent contractor’s work is directly liable for any failure to use reasonable care in exercising that control

Question 55

Independent contractors

Answer 55

possesses independence in the manner and method of performing the work he has contracted to perform for the other party to the contract.

usually paid by the job instead of receiving ongoing salaries;

the individual who hires an independent contractor typically does not supervise the contractor’s activities or retain a right to control his activities.

Question 56

when an indvidiual hires an independent contractor to do work involving a special danger to which the employer knows/should know are inherent to the work

Answer 56

he is subject to liability for phsyical harm caused to others by contractor’s failure to take reasonable precautions against such danger

Question 57

comparative negligence

Answer 57

apportionment is not avail unless jury concludes P is less than 50% at fault

Question 58

attractive nuisance doctrine

Answer 58

Under the attractive-nuisance doctrine, a possessor of land is subject to liability for physical harm to a trespassing child when that harm is caused by an artificial condition on the land and

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

Question 59

Psychotherapist Duty to Warn (Tarasoff v. Regents of UCal)

Answer 59

a psychotherapist who fails to warn an intended victim against whom her patient has made credible threats of physical violence may be found liable for that victim’s injuries.

Many courts permitting recovery either
(1) when the therapist believed that the patient posed a real risk to the specified victim or
(2) when the therapist negligently failed to take the threat seriously

courts have said v must have been specficially known & designated and readily ascertainable

Question 60

negligence per se

Answer 60

elements of duty and breach are presumed if:

1) D viol a statute

2) the statute was intended to prevent the type of harm suffered by P, and

3) P is within a class of persons that the statute was intended to protect

Question 61

compliance w/ a statute does not

Answer 61

does not establish freedom from fault if conduct is not reasonable under the circumstnaces

Question 62

D’s viol of an applicable statute/ordinance will be excused if

Answer 62

D presents rebuttal evid that he was using reasonable care or was incapacitated while attempting to comply w/ the statute/ordinance

if p fails to dispute this excsue w/ counterevid then D prevails

Question 63

Duty of care owed by a college dormitory

Answer 63

A college does not stand in a parens patriae relationship with its students and instead is a landlord/tenant relationship

university has a duty to take reasonable precautions to protect tenants against foreseeable attacks

Question 64

Liability for harms that are a foreseeable result of negligence

Answer 64

An actor is liable for those harms that are a foreseeable consequence of his negligence.

subsequent med mal is w/in scope of the risk

Question 65

scope of the risk

Answer 65

an actor is liable for those harms that are foreseeable consquences of his negligence

Question 66

Eggshell Skull Rule

Answer 66

A tort defendant takes his victim as he finds him.

The victim with an “eggshell skull” who suffers injuries greatly in excess of those that a normal victim would suffer is entitled to recover for the full extent of his injuries.

Question 67

Duty of care owed by a child

Answer 67

Unless a child is engaged in an adult activity, his conduct is to be measured against that of a
child of like age, intelligence, and experience

Question 68

duty to come to the aid of another?

Answer 68

no duty to come to the aid of another. An actor who undertakes to render services designed to reduce the risk of harm to another does acquire a duty of reasonable care toward the other if

a) the failure to exercise such care increases the risk of harm beyond that which
existed without the undertaking, or

b) the person to whom the services are rendered or another relies on the actor’s
exercising reasonable care in the undertaking.

Question 69

When is there a duty to help another?

Answer 69

When an actor “takes charge of another who is helpless adequately to aid or protect himself,” he is subject to liability to the other for bodily harm caused by

a) “the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or

b) the actor’s discontinuing aid or protection, if by doing so he leaves the other in a worse position than when the actor took charge of him.”

Question 70

Standard of care owed by a doctor

Answer 70

doctor is liable to a patient only when the evidence shows that he has failed to comply with the standard of care for the relevant specialty and medical community and his failure causes the patient’s injury

compare doc’s conduct to national standards - not locality

expert testimony is necessary

Question 71

Products liability: the market share liability doctrine

Answer 71

permits the jury to apportion damages based on the market shares of manufacturers of a defective product.

available only if the manufacturers’ defective products are fungible in relation to their capacity to cause harm

Question 72

Products liability: the alternative liability doctrine

Answer 72

permits a jury to find two defendants liable when each was negligent and either could have caused the plaintiff’s injuries

Question 73

Products liability: the joint enterprise doctrine

Answer 73

allows the jury to impute one defendant’s tortious conduct to other defendants who are engaged in a common project or enterprise and who have made an explicit or implied agreement to engage in tortious conduct

Question 74

Abnormally dangerous activity - factors 2nd restatement

Answer 74

(a) existence of a high degree of risk of some harm to the person, land or chattels of Others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous attributes.

essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care

common usage = an activity must be carried on “by the great mass of mankind or by many people in the community

Question 75

Abnormally dangerous activity - first and third restatement

Answer 75

(1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and

(2) the activity is not one of common usage.

activities can be in common use even if they are engaged in by only a limited number of actors

Question 76

zone of the risk

Answer 76

If an actor’s conduct creates a recognizable risk of harm only to a particular class of persons, the fact that it causes harm to a person of a different class, to whom the actor could not reasonably have anticipated
injury, does not render the actor liable to the persons so injured

Question 77

Intentional infliction of emotional distress

Answer 77

1) D acted intentionally or recklessly

2) D engaged in extreme and outrageous conduct

3) P suffered severe emotional distress

Question 78

intentional infliction of emotional distress w/ a public figure

Answer 78

extreme + outrageous conduct that causes P severe emotional harm, PLUS

p must show that D published false statement of fact w/ actual malice

Question 79

negligent infliction of emotional distress

Answer 79

1) D is negligent,

2) P suffers phsycial symptoms from its emotional distress, and

3) P is either in the zone of danger or the P witnesses a negligent injury to a person closely related to the plaintiff

Question 80

assumption of the risk

Answer 80

affirmative defense to strict liablity when P

1) knows the risk of harm; and

2) voluntarily accepts that risk

*under common law, complete defense to strict liablity

Question 81

is a duty of care owed to a fetus if it is viable at the time of injury

Answer 81

yes

Question 82

intrusion upon seclusion

Answer 82

an invasion of privacy that occurs when D intentionally intrudes on Ps private affairs in a manner that would be highly offensive to a reasonable person

ex: phone tapping, examining private bank acct, opening personal mail

Question 83

a strict liability claim cannot be brought against a

Answer 83

service provider

Question 84

strict liability claim can only be brought against

Answer 84

commercial suppliers/sellers

D must be in the business of selling/distributing type of defective product that harmed P

Question 85

indemnification is available to a tort D

Answer 85

who has paid P’s damages award when as between the paying and nonpaying Ds the paying D was not at fault in causing P’s injuries and nonpaying D was at fault

Question 86

standard of care for a mentally incompetent person

Answer 86

held to same standard as a reasonably prudent person w/ ordinary intelligence and knowledge