Torts

Question 1

elements for battery

Answer 1

intentional

harmful or offensive contact (objective standard; unless Δ knew Π particularly susceptible)

Question 2

elements for assault

Answer 2

intentional

causing of

apprehension of imminent harmful contact

Question 3

elements for IIED, and when can you have 3P liability

Answer 3

intentional

extreme and outrageous conduct

severe Emotional distress

can have 3P liability where

1. Δ knows 3P is present + direct victim is a close family relative of 3P (bodily harm not required)
2. 3P’s emotional distress is so bad that it results in bodily harm to 3P (heart attack, stroke, etc.)

Question 4

False imprisonment

Answer 4

intentional confinement of a person in a space with no escape

P must have been aware or harmed

Question 5

tresspass

Answer 5

intentional
physical invasion
of someone else’s real property

Question 6

trespass to chattel

Answer 6

intentional

interference

of P’s use or possession

of chattel

Question 7

conversion

Answer 7

trespass to chattel and
substantial interference
D pays full damages

Question 8

Defenses to intentional torts

Answer 8

CND (clever ninja defense)

consent
defense of self; property; others
necessity (public v. private – must pay)

Question 9

Steps to an ordinary negligence analysis

Answer 9

1. Duty
2. Breach (res ipsa)
3. Causation (legal and proximate)
4. damages
5. Defenses

Question 10

reasonable person standard of care for negligence

Answer 10

Δ owes a duty not to subject any foreseeable Π to unreasonable risk of injury. Who is foreseeable?
Under the Cardozo (majority) view, Δ has a duty of care to Πs in the foreseeable zone of danger (threat of physical
danger). Under the Andrews view, Δ has a duty of care to everyone (everyone is foreseeable).

Question 11

strict liability for abnormally dangerous activity requires

Answer 11

the activity is uncommon in the area, creates a foreseeable high risk of harm even when reasonable care is exercised. And the danger outweighs the value of the activity to the community

Question 12

Assumption of risk defense

Answer 12

P barred from recovery if he assumed the risk where he (1) knew of the risk) and (2) voluntarily consented despite the risk

Question 13

attractive nuisance doctrine

Answer 13

a landowner must exercise reasonable care to prevent foreseeable injury to children if

(1) the owner knew or should have known that a child would trespass

(2) the condition poses an unreasonable risk of injury or harm

(3) the children are unlikely to discover or realize the danger due to their youth

(4) owner fails to use reasonable care to eliminate the danger

(5) benefit to owner is not outweighed by the risk

Question 14

strict product liability requires

Answer 14

a commercial supplier has a strict duty to ensure products are free from defect.

a commercial supplier is one who places the product in the stream of commerce wihtout substantial alteration

commercial supplier includes retailers and manufacturers

Question 15

design defect (what is the standard for whether there is a design defect 

Answer 15

the design is unreasonable and dangerous

consumer expectation test: a product’s performance must meet the minimum safety expectations of its ordinary user using it in a foreseeable manner

risk-utility test: product is defective if the risk of danger inherent in the design outweighs the benefits of the design and the danger could have been avoided by the adoption of a reasonable, cost effective alternate design

Question 16

informational defect

Answer 16

when a manufacturer fails to give adequate warning as to a known (or should have known) danger in the product or in a particular use of the product that is not obvious

Question 17

implied warranty of merchantability

Answer 17

a warranty of merchantability is implied in every sale of goods, ensuring that they are a fit for the ordinary purposes for which the goods are used

Question 18

defamation elements and defenses

Answer 18

statements of opinion can be actionable is they are defamatory

elements:
(1) defamatory statement based on specific facts
(2) of or concerning P
(3) publication to third party
(4) damages (presumed if libel in writing)

if PUBLIC CONCERN must prove falsity
falsity = malice for public figures, or negligence for private figures

DEFENSES:
absolute privilege for remarks made during judicial proceedings or legislative debates

qualified privilege for reports or official proceedings, statements in there interest of the publisher, statements in the interest of the recipient, stamens in the common interest of the publisher and the recipient

Question 19

elements for private and public nuisance

Answer 19

private:
substantial and objectively reasonable interference with P’s
use and enjoyment of their land

public:
unreasonable interference with a health, safety, moral right common to general public.
Private party has cause of action if he cna show special damages. Otherwise government brings suit.

Question 20

when is an employer liable for independent contractor?

Answer 20

when (1) IC is engaged in inherently dangerous activity (excavating) or
(2) duty is non-delegable as a matter of public policy or safety

Question 21

negligent hiring

Answer 21

• but for and proximate cause
• employer had (+constructive) knowledge of employee’s incompetence, negligence, or tendency to violence

Question 22

respondeat superior

Answer 22

If an employee is negligent within scope of employment, under employer’s direction, or while serving employer’s interest, then employer is vicariously liable for employee’s tortious acts

EXCEPT for detours and unauthorized intentional torts

Question 23

When is there a duty to control 3P’s (protect victim from actions of 3P)

Answer 23

Special relationship, when 3P is in custody (schools or prison), when there is foreseeable risk

Doctor - patient: if patient unable to understand nature of harm they pose to others because of a physical condition, doctor has duty

Psychiatrist - patient: if risk of serious harm or bodily injury is discovered

Dram shop rule: taverns have duty to refuse serving alcohol to those who are visibly drunk