Torts

Question 1

Battery

Answer 1

• Intentional infliction
• of a harmful or offensive bodily contact (can be direct or indirect; includes contract w/ an object closely identified w/ P’s body)

Question 2

Transferred intent applies in following situations

Answer 2

• If D held the necessary intent with respect to one person but instead commits a different tort against that person or any other person, or
• The intended tort against a different person.

*does NOT apply to conversion or IIED

Question 3

Assault

Answer 3

• Intentional causing
• of an apprehension
• of an imminent
• harmful or offensive contact

(P must be aware of threat)

Question 4

IIED

Answer 4

• Intentional or reckless infliction
• of severe emotional or mental distress
• caused by D’s extreme and outrageous conduct

Question 5

Third-person liability for IIED

Answer 5

P can recover for IIED if P physically present and
- is close relative of person X OR
- suffers bodily harm as result of severe emotional distress

Question 6

False imprisonment

Answer 6

• D intentionally causes P
• to be confined, restrained or detained
• within bounded area
• with no reasonable means of escape
• of which P aware or harmed

Question 7

Trespass to land

Answer 7

Intentional physical invasion of land of another

Question 8

Trespass to chattels

Answer 8

Intentional interference with person’s use or possession of their chattel

• Damages = chattel’s loss of value caused by loss of use

Question 9

Conversion

Answer 9

• Intentional interference
• with P’s possession or ownership of prop
• that is so substantial
• warrants requiring D to pay prop’s full value

*substantial interference = refuses to return, destroys or gives chattel to 3P

Question 10

Defenses to intentional torts

Answer 10

• Consent
• Self-defense
• Defense of others
• Defense of property
• Recapture of chattels
• Shopkeeper’s privilege
• Arrest under legal authority
• Public and private necessity

Question 11

Defenses to intentional torts: Consent

Answer 11

P consents to D’s conduct (express or implied)

Question 12

Defenses to intentional torts: Self-defense

Answer 12

Reasonable force to prevent any threatened harmful or offensive bodily contact and any threatened confinement or imprisonment.
- Deadly force: only allowed if D is in danger of death or serious bodily harm.
- Can only use degree of force necessary to prevent harm

Question 13

Defenses to intentional torts: Defense of others

Answer 13

Reasonable force to defend another when he reasonably believes that the other person could have used force to defend himself.

Question 14

Defenses to intentional torts: defense of prop

Answer 14

A person may use reasonable force to defend his real or personal property
- warning required unless futile or dangerous
- Deadly force: only allowed if D reasonably believes w/o deadly force, D/SBH will occur

Question 15

Defenses to intentional torts: recapture of chattels

Answer 15

A property owner has the general right to use reasonable force to regain possession of chattels taken by someone else.
- Owner must be in fresh pursuit
- Deadly force NOT allowed

Question 16

Defense to intentional torts: Shopkeeper’s privilege

Answer 16

Defense to FI. If shopkeeper reasonably suspects P of stealing, he can detain P for a reasonable amount of time in a reasonable manner.

Question 17

Defenses to intentional torts: Arrest under legal authority

Answer 17

allowed when D was exercising his legal rights and duties by restraining P.

Question 18

Defenses to intentional torts: Necessity

Answer 18

As a defense to trespass to land.
- Public necessity: allows person to enter P’s land to prevent an imminent public disaster; person is not liable for damage if her actions were reasonable or she had a reasonable belief that necessity existed, even if initial entry was not necessary.
- Private necessity: allows a person to enter plaintiff’s land to protect her own person/property from harm; not liable for trespass but responsible for actual damages.

Question 19

Negligence general rule

Answer 19

To establish a claim for negligence, a plaintiff must prove (1) duty, (2) breach, (3) causation, and (4) damages.

Question 20

Duty of care general rule

Answer 20

A person has a duty to act as a reasonable person. There are two duty considerations: to whom the duty is owed and the applicable standard of care.

Question 21

To whom duty of care is owed (2 tests)

Answer 21

• Foreseeable plaintiffs (majority view—Cardozo): a duty is owed to foreseeable plaintiffs in the zone of danger.
• Everyone (minority view—Andrews): a duty is owed to everyone, including unforeseeable plaintiffs.

Question 22

Standard of care: general

Answer 22

A person has a duty to act as a reasonable person under the circumstances unless a special duty standard of care applies.

E.g., conclude with “Thus, D had a duty to act as a reasonably prudent ___ (driver, etc.)”

Question 23

Special standard: emergency situations

Answer 23

In the event of an emergency, a party will be judged by the reasonable standard a prudent person would exercise in an emergency situation (less may be expected)

Question 24

Special standards of care: affirmative duties

Answer 24

D generally has no duty to take affirmative action to help P, except:
- special relationship (L-T)
- D’s conduct placed P in danger,
- D voluntarily rendered assistance to P, must proceed w/reasonable care

Question 25

Special standards of care: Professionals

Answer 25

required to possess the knowledge and skill of a member of their profession or occupation in good standing (e.g., doctors).
- Fireman’s rule: Firefighters, police officers and other professional risk takers who are injured in the line of duty are prohibited from suing for negligence for injuries sustained stemming from the inherent risks they assume with their profession.

Question 26

Special standards of care: Children

Answer 26

have a duty to conform to the conduct of a child of like age, intelligence, and experience.
*Except: when they are engaged in adult activities (e.g., potentially dangerous)

Question 27

Special standards of care: Owners and occupiers of land general rule

Answer 27

the standard of care depends on whether the damage occurs outside the premises or on the premises.

Question 28

Special standards of care: Owners and occupiers of land, damage occurs outside premises

Answer 28

• Natural conditions: no duty exists to protect one outside the premises from damage caused by hazardous natural conditions on the premises.
• Artificial conditions: a duty exists to prevent one outside the premises from damage caused by an unreasonable risk of harm for unreasonably dangerous artificial hazards.

Question 29

Special standards of care: Owners and occupiers of land, damage occurs inside premises

Answer 29

A std of reasonable care applies to all land entrants except trespassers.
- Trespassers (someone who lacks consent to be on land): landowner generally owes no duty to make the land safe or warn of dangerous conditions to undiscovered trespassers or invitees/licensees that go beyond the scope of their invitation.

Question 30

Special standards of care: Owners and occupiers of land, Trespassers rule exception

Answer 30

• Known or frequent trespassers: there is a duty to warn known or frequent trespassers of known dangers and artificial conditions that pose a risk of death or serious bodily harm.

Question 31

Special standards of care: Owners and occupiers of land, Trespassers rule exception (attractive nuisance doctrine) occeo

Answer 31

Landowner must exercise ordinary care to avoid foreseeable injury to children if:
- owner knew or should have known that the area is one where children trespass;
- condition poses an unreasonable risk of serious injury or death;
- children do not discover the risk or realize the danger due to their youth;
- expense to remedy the condition is slight compared to the risk; and
- owner fails to use reasonable care to eliminate the danger.

Question 32

Special standards of care: Invitees

Answer 32

One who enters the land to do business with the owner (can be public or private) (e.g., customer in a store or person who goes to someone’s house to do bus.)
- Owner has a duty to make a reasonable inspection to find hidden dangers and make necessary repairs.

Question 33

Special stds of care: Licensee

Answer 33

one who enters the land with the owner’s consent for his own purpose (e.g., social guests).
- Owner has a duty to warn of all known dangerous conditions that create an unreasonable risk of harm that the licensee is unlikely to discover and to use reasonable care in conducting its active operations on the property. However, there is no duty to repair or inspect the premises.

Question 34

Special stds of care: L-T

Answer 34

• T has duty to maintain premises
• L has duty to warn of known existing dangers, maintain common areas, make repairs in non-negligent way

Question 35

Violation of a statute-negligence per se

Answer 35

D is negligent per se if:
- Violates a statute without excuse
- P is within class of persons statute designed to protect AND
- statute is designed to guard against type of harm suffered by P

*Establishes duty and breach but still have to prove causation and damages.
*Add this section AFTER regular negligence duty and breach and then talk about causation and damages.

Question 36

Breach of duty rule

Answer 36

Breach occurs when D’s conduct fails to conform to the applicable standard of care.

*Courts often use a balancing test to determine if the unreasonableness of the risk outweighs the utility of the act.

Question 37

Res ipsa loquitor

Answer 37

can be used to establish breach of duty where the event transpiring creates an inference that D was probably negligent because:
- accident is a type that ordinarily does not occur in absence of negligence,
- other causes including the conduct of P and third persons, are sufficiently eliminated by the evidence (D had exclusive control)

Question 38

Causation general rule

Answer 38

P must prove actual causation and proximate causation.

Question 39

Actual cause rule

Answer 39

But for D’s act, the injury to P would not have occurred
- Substantial factor test: If there are multiple causes, defendant will be a cause in fact if he was a substantial cause of plaintiff’s injury.

Question 40

Proximate cause rule

Answer 40

P must show that her injuries were the foreseeable result of defendant’s conduct.
- Eggshell P: D liable for any unforeseen consequences to P caused by P’s vulnerable condition bc D takes P as he finds him

Question 41

Proximate cause - intervening causes

Answer 41

• Foreseeable: D is liable for all foreseeable intervening causes (such as subsequent medical malpractice and negligence by rescuers).
• Unforeseeable: D is not liable for superseding intervening causes that are unforeseeable. Superseding intervening causes break the chain of causation and cut off D’s liability.

*There can be more than 1 intervening cause. Address each one separately and determine if they are foreseeable or unforeseeable (do they cut off D’s liability?)

Question 42

Damages rule

Answer 42

damages require an actual injury to P, not just economic loss.

Question 43

Negligent infliction of emotional distress (NIED)

Answer 43

D is liable for NIED when he engages in negligent conduct that causes P to suffer serious emotional distress.
- Actual impact to P that causes emotional distress
- Fear for others’ safety: if P suffers from severe emotional distress with/without any physical impact to him personally, recovery under NIED depends on whether P was present and is a close relative of victim.

Question 44

Defenses to negligence

Answer 44

• Contributory negligence
• Comparative negligence
• Assumption of risk

Question 45

Defenses to negligence: Contributory negligence

Answer 45

P’s negligence is a complete bar to recovery (abolished in most jx’s).

Question 46

Defenses to negligence: Comparative negligence

Answer 46

P’s negligence is not a complete bar to recovery, but her damages are proportionate to her fault.

Question 47

Defenses to negligence: Assumption of risk

Answer 47

P’s recovery may be barred if she voluntarily and knowingly assumed the risk of her behavior.

Question 48

Strict liability: animals

Answer 48

An owner is strictly liable for:
- Trespass (damage done by trespass of animal)
- Wild animals (nontrespass injuries caused by wild animals from dangerous propensity that is typical of species)
- Domestic animals known to be dangerous: injuries caused by such animals only if owner knew or should have known of dangerous propensity

Question 49

SL: Abnormally dangerous activities RRAAD

Answer 49

All elements must be met. An activity is abnormally dangerous if:
- It creates a high risk of harm,
- Risk cannot be eliminated by exercise of reasonable care,
- Activity is not common,
- Activity is not appropriate for the location, and
- Danger outweighs the activity’s value to the community.

Question 50

Defenses to SL

Answer 50

• Assumption of risk is a defense to SL
• Contributory fault NOT a defense

Question 51

5 ways to establish products liability (TALK ABOUT ALL)

Answer 51

• Strict products liability (main one)
• Negligence
• Warranty
• Misrepresentation
• Intent

Question 52

Strict products liability general rule

Answer 52

A commercial seller is held strictly liable for personal injuries caused by a defective product. P must prove the following elements:
(1) commercial supplier,
(2) defective product,
(3) actual cause,
(4) proximate cause,
(5) damages.

Question 53

Strict products liability: (1) Commercial supplier

Answer 53

A defendant who is in the business of selling a commercial product—including manufacturers, distributors, and retail sellers—is under an absolute duty to provide a safe product.
*Ask: does D qualify as a commercial seller, as opposed to a casual or occasional seller?

Question 54

Strict products liability: (2) defective product general rule

Answer 54

A product is defective when, at the time of the sale or distribution, it contains a manufacturing defect, a design defect, or a warning defect (i.e., failure to warn). (possible for a product to be defective based on more than one theory, discuss all relevant theories raised by facts).

Question 55

Strict products liability: (2) defective product, manufacturing defect rule

Answer 55

exists when a product was not manufactured as intended (i.e., different product than all others because it deviated from its intended design).

Question 56

Strict products liability: (2) defective product, design defect rule

Answer 56

Depending on jx, courts apply either consumer-expectation test or the risk-utility test (or a hybrid of both tests).
- Consumer-expectation test: P must prove that the product is dangerous beyond the expectation of an ordinary consumer.
- Risk-utility test: P must prove that a reasonable alternative design that is economically feasible was available to D, and failure to use that design rendered the product unreasonably unsafe.

Question 57

Strict products liability: (2) defective product, warning defect rule

Answer 57

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

Question 58

Strict products liability: compliance with industry standards

Answer 58

is NOT dispositive conclusive evidence that a product is not defective, but lack of compliance can establish that a product is defective.

Question 59

Strict products liability: (3) actual cause

Answer 59

but for the defect, he would not have been injured and that the defect existed at the time it left D’s control.

Question 60

Strict products liability: (4) proximate cause

Answer 60

the defect causing P’s injuries must have occurred when the product was being used in an intended or reasonably foreseeable way.

**D will still be liable if P misuses the product and is injured if that misuse is foreseeable.

Question 61

Strict products liability: (5) damages

Answer 61

physical injury or property damage must be shown. There is no recovery for purely economic loss.

Question 62

Strict products liability: Defenses

Answer 62

• Assumption of risk is defense
• Pure comparative negligence: P’s damages reduced by her proportionate fault
• Contributory negligence: no recovery if P’s fault consisted of unreasonably proceeding in face of a known product defect

Question 63

Products liability: Negligence

Answer 63

Same as above. Note that retailers and wholesalers are rarely liable under a negligence theory for products liability since they only have a duty to inspect or warn of known dangers. A manufacturer would still be liable under a negligence theory.

Question 64

Products liability: Warranty, express warranty

Answer 64

a promise or guarantee made by the defendant about the product. If the product does not meet this warranty, the defendant has breached this warranty and plaintiff can recover damages.

Question 65

Products liability: Warranty, implied warranty of merchantability

Answer 65

(always discuss): a product that is sold is impliedly warranted to be reasonably useful and safe for average use.

Question 66

Products liability: Warranty, implied warranty of fitness for a particular purpose

Answer 66

(if applicable) if a seller knows or has reason to know of a particular purpose for which some item is being purchased by the buyer, the seller is guaranteeing that the item is fit for that particular purpose.

Question 67

Defenses to product liability, warranty

Answer 67

• Assumption of risk is a defense.
  -Comparative /contributory negligence (unless P’s negligence/misuse was foreseeable) is a defense.
• Failure to give notice of breach within a reasonable time under UCC.

Question 68

Products liability, misrepresentation

Answer 68

Seller will be liable for misrepresentations of fact concerning a product when the statement was:
- a material fact
- concerning quality or uses of goods
- seller intended to induce reliance by buyer
- did in fact induce reliance

*P must still prove actual and proximate cause and damages. comparative negligence can be a defense unless D’s misrepresentation was intentional

Question 69

Fraud (intentional misrepresentation)

Answer 69

• misrepresentation of a material fact,
• knowledge of statement’s falsity (or reckless disregard)
• intent to induce P’s reliance on misrepresentation
• justifiable and actual reliance by P
• causation
• pecuniary damages to P

Question 70

Negligent misrepresentation

Answer 70

• Misrepresentation by D in a business or professional capacity,
• Negligence standard: D acted with no reasonable grounds for believing the misrepresentation to be true,
• Intent to induce P’s reliance on the misrepresentation,
• Justifiable reliance by P
• Causation,
• Pecuniary damages to P.

Question 71

Products liability: Intent

Answer 71

D is liable to anyone injured by an unsafe product if the D intended the consequences or knew they were substantially certain to occur

Question 72

Private nuisance

Answer 72

a substantial and unreasonable interference with another’s use or enjoyment of his land.

*substantial = annoying to avg person
*unreasonable = balance interests of P being free from nuisance and D in continuing his activities

Question 73

Public nuisance

Answer 73

substantial and unreasonable interference with the rights, health and safety of the community.

*Interference = consider factors establishing harm to comm. (frequency, location)
*Recovery by priv. party = must demonstrate distinct harm from comm.

Question 74

Remedies for nuisance

Answer 74

damages & injunctive relief

Question 75

Defenses for nuisance

Answer 75

• Regulatory compliance (partial defense)
• Coming to the nuisance NOT defense
• Assumption of risk and contributory neg. if P rests case on neg. theory

Question 76

Defamation rule

Answer 76

P may bring an action for defamation if
(1) D’s defamatory language is of or concerning the plaintiff,
(2) is published to a third party who understands its defamatory nature and
(3) damages P’s reputation.

Addiitonally, if statement involves a matter of public concern or P is a public official, P must prove falsity and fault (con law requirements).

**watch out too for IIED

*Statement can be made intentionally or negligently to 3P. It is the intent to PUBLISH that satisfies publication.
*Causation: P must show P’s rep. would have been harmed if believed (no actual harm required)

Question 77

Defamation damages

Answer 77

Depend on type:
- Libel (written): general damages presumed
- Slander (oral or spoken): general damages NOT presumed.
- Slander per se: damages are presumed when comments involve professional reputation, disease, crimes of moral turpitude, or unchaste (sexual misconduct) behavior of P.

Question 78

Con law defamation requirements

Answer 78

**Must be analyzed if the defamation is a matter of public concern OR if plaintiff is a public figure.

Rule: Constitutional defamation requires the P prove common law defamation (above) AND establish falsity and fault on the part of D. Test to determine fault depends on status of P.
*Falsity (P must prove statement is false)
*Fault
- Public figure (actual malice must be proven) = achieved pervasive fame or voluntarily assumed a public role in society. actual malice must be proven. Actual malice exists when D made the statement with either (1) knowledge that it was false or (2) reckless disregard as to whether it was true or false.
- Private figure = any person not a public figure. (must prove D acted with fault–either negligence or malice). BUT if malice exists, damages presumed, punitive damages allowed
- P must prove actual damages if he is a public figure/official or a private figure, but a
matter of public concern is involved. If the plaintiff is a private figure and shows malice, he
can recover punitive damages as well

Question 79

Defamation approach

Answer 79

(1) Is the statement a matter of public concern?
(2) Does it meet CL requirements?
(3) If statement is a matter of public concern or involves a public figure, then P must prove fault.
(4) If P public official, need to prove actual malice (false statement made knowingly or reckless disregard for its truth). Damages presumed.
(5) If P a private figure, only need to prove negligence (or actual malice). Damages presumed if P can prove actual malice, otherwise, only actual injury damages recoverable.

Question 80

Misappropriation

Answer 80

unauthorized use of P’s picture, name or likeness for D’s commercial advantage.
*P must prove lack of consent and injury

Question 81

Intrusion upon seclusion

Answer 81

• intrusion into a P’s private affairs,
• where one has a reasonable expectation of privacy,
• that is highly offensive to a reasonable person.
  *no publication required

Question 82

False light

Answer 82

P must prove that D
(1) published facts about plaintiff or attributed views/actions to P
(2) that place him in a false light and
(3) are highly offensive to a reasonable person.
*If matter is of public concern, have to prove actual malice
*For public figures, P must prove D acted with actual malice

Question 83

Public disclosure of private facts

Answer 83

The public disclosure of private facts is actionable if the
- publication would be highly offensive to a reasonable person and
- is not of legitimate concern to the public.

Question 84

Malicious prosecution (all elements must be met and P can sue D and D’s attorney but need to do sep. analysis for each)

Answer 84

A person is liable for malicious prosecution when:
(1) He intentionally and maliciously institutes a criminal or civil proceeding (note: Prosecutors are immune from liability, but D can be any person actively involved in bringing about the proceedings)
(2) For an improper purpose,
(3) There is an absence of probable cause for the proceedings, and
(4) The action is dismissed in favor of the person who brought suit for malicious prosecution.

Question 85

Abuse of process

Answer 85

• occurs when D intentionally misuses legal process (depositions, discovery tools, etc.) for an ulterior purpose and
• D committed a willful act in a wrongful manner that caused damage to P.

Question 86

Tortious interference w business relations

Answer 86

Prima facie case requires establishing:
(1) Existence of a valid contractual relationship between P and a third party or a valid business expectancy of P,
(2) D knew or should have known of relationship or expectancy,
(3) Intentional interference by D inducing breach or termination of the relationship or expectancy,
(4) Damages.

*Defense–privilege: D’s conduct may be privileged where it is a proper attempt to obtain business for itself or protect its interests (fair competition), particularly if D uses justifiable and fair methods.

Question 87

Vicarious liability: Respondeat superior

Answer 87

when an employee commits a tort during the scope of his employment, his employer will be jointly liable.
- Employee: one who works subject to the close control of the person who hired him.
- Scope of employment: tort is within the scope of employment if tortfeasor was acting with the intent to further the employer’s business, even if the act itself was forbidden.

Question 88

Vicarious liability: Independent contractors

Answer 88

one who hires an independent contractor is generally not vicariously liable for the torts of that person unless:
- employer is negligent in hiring person,
- duty is nondelegable bc work is in public place or involves abnormally dangerous activities

Question 89

Employee v Independent Contractor

Answer 89

consider the following factors:
- control over how and when duties are performed,
- control of schedule, manner and method of payment,
- who provides the tools for the job,
- whether the contractor works for one or several employers, and
- whether specialized skill or knowledge is required for the job.

Question 90

Multiple D’s

Answer 90

• Joint & several liability: exists where two or more negligent acts combine to proximately cause an indivisible harm, making each defendant liable for the entire harm. P can recover the entire loss from any D, regardless of that D’s share of the total responsibility.
• Contribution: allows a D who pays more than his pro rata share of responsibility because he is jointly and severally liable, to obtain reimbursement from another D for any amount paid over his pro-rata share.
• Indemnity: occurs when the responsibility for the entire loss is shifted from one tortfeasor to another. (can seek contribution)

Question 91

Survival action

Answer 91

allows decedent’s estate to assert a claim on behalf of decedent. estate needs to establish underlying tort claim

Question 92

Wrongful death

Answer 92

grant recovery for pecuniary injury resulting to the spouse and next of kin for a wrongful death and allows recovery for loss of support and consortium. Decedent’s creditors have no interest in the amount recovered under a wrongful death claim.

Question 93

Tortious interference w family relationships

Answer 93

A husband or wife may bring an action for interference with consortium and services caused by D’s intentional or negligent actions against the other spouse. A parent can also recover for the loss of a child’s services and consortium.

Question 94

Issues that can limit compensatory damages

Answer 94

• Causation: damages must be caused by the tortious act. (but-for)
• Foreseeable: damages must be foreseeable by a reasonable person at the time of the tortious act.
• Certainty: damages must be calculated with certainty.
• Unavoidable: P has duty to mitigate losses. Also, the avoidable consequences doctrine limits damages to those that could not reasonably have been avoided.

Question 95

Tort remedies: compensatory damages

Answer 95

awarded to compensate P for injury or loss and seek to make the P whole. They are measured by the monetary value of P’s harm.

Question 96

2 types of compensatory damages

Answer 96

• General: noneconomic losses suffered by P due to the tort (pain and suffering, emotional distress)
• Special damages are economic damages suffered by P due to tort (medical bills, lost wages)

Question 97

Past and future damages

Answer 97

• Past damages: P can recover for past damages.
• Future damages: P can recover for anticipated future damages if she can calculate them with reasonable certainty.

Question 98

Pure economic loss

Answer 98

NOT recoverable for most torts, absent a showing of property loss or personal injury.
*Exception: tort for intentional interference with business relations does allow for pure economic loss recovery.

Question 99

Nominal damages

Answer 99

if a plaintiff established the elements of a cause of action, but the harm or loss is slight, the plaintiff may be awarded a “nominal”, or small/trivial amount of money.

Question 100

Punitive damages

Answer 100

awarded where D engaged in serious misconduct and are issued to make an example of defendant. Awarded if:
- Actual damages are awarded
- Culpability of D is greater than negligence
- Relatively proportionate to actual damages (single digit ratio)

Question 101

Money restitution

Answer 101

where P is awarded the monetary value of benefit he conferred on D. (needs to choose between restitution or compensatory)

Question 102

Legal malpractice

Answer 102

is a negligence claim involving duty, breach, causation and damages (P can recover damages if he can establish that he would’ve won in underlying suit)