Torts

Question 1

Negligence

Answer 1

A party is liable under a negligence theory is the P can show the defendant:
1. had a duty to the P
2. breached the duty
3. the breach was the actual and proximate cause of P’s injuries
4. there were damages

Question 2

Duty

Answer 2

A person has a duty to use reasonable care. Under the majority view (Cardozo), the duty is owed to all foreseeable plaintiffs. Under the minority view (Andrews) the duty is owed to everyone.

Question 3

Breach

Answer 3

A breach occurs when a person fall short of the applicable duty of care.

Question 4

Actual Cause

Answer 4

But for

Question 5

Proximate Cause

Answer 5

A defendant is liable for all harm that is reasonably foreseeable and for any intervening causes that are foreseeable.

Question 6

Defenses

Answer 6

Assumption of Risk
Contributory Negligence

Question 7

Attractive Nuisance

TURD-B

Answer 7

A landowner must exercise ordinary care to prevent foreseeable injuries to children if the landowner knew or should have known:
(1) The area is one where children trespass
(2) There is an unreasonable risk of serious injury or death
(3) Children would not discover the risk or realize the danger
(4) The benefit to the community does not outweigh the risk
(5) Owner fails to exercise reasonable care

Question 8

Strict Liability-
Abnormally Dangerous Activity

Answer 8

There is strict liability for abnormally dangerous activities. An activity is abnormally dangerous if it:
(1) is not common in the community;
(2) inherently involves risk of serious harm, and
(3) cannot be performed with complete safety.

A minority of courts consider the value of the activity and its appropriateness to the location.

Question 9

Duty for Abnormally Dangerous Activity

Answer 9

The duty owed is to make absolutely safe the ultrahazardous activity, regardless of precautions to prevent harm. This duty is generally owed to all foreseeable plaintiffs but limited to only the kind of harm expected to be caused by the activity

Question 10

Malicious Prosecution

Answer 10

Malicious prosecution requires:
(1) beginning a criminal (and in many jurisdictions) a civil action for wrongful purposes
(2) with insufficient probable cause;
(3) the claims must be dismissed in favor of the defendant;
(3) and causing damages.

Question 11

Battery

Answer 11

Battery is an **intentional infliction **of a harmful or offensive bodily contact.

Question 12

Assault

Answer 12

Assault is the **intentional causing **of an **apprehension **of an imminent harmful or offensive contact.

V must be aware

Question 13

False Imprisonment

Answer 13

False imprisonment occurs where the defendant **intentionally causes **the plaintiff to be confined, restrained, or detained to a
**bounded area **with no reasonable means of escape, of which the plaintiff is either aware or harmed.

1. Intentional
2. confinement in a bounded area of another
3. no reasonable means of escape
4. they were harmed or knew of confinement

Question 14

IIED

Answer 14

Intentional infliction of emotional distress (IIED) is the
intentional or reckless infliction of severe emotional or mental distress caused by defendant’s extreme and outrageous conduct.

1. Intentional or reckless;
2. Severe – must be severe
3. outrageous and extreme conduct - beyond all possible bounds of decency.
4. Results in emotional harm

Can apply to bystanders if either:
* Plaintiff was physically present, known by the defendant ot be there, and a close relative; OR
* Plaintiff was physically present, known by the defendant ot be there, suffered physical harm

Question 15

Trespass to Chattels; Conversion; and Trespass to Land

Answer 15

Trespass to Chattels is an intentional interference with a person’s use or possession of a chattel.
1. Intentional;
2. interference with;
3. P’s use or possession
4. Liable for damages or costs of repair

Conversion is an **intentional interference **with the plaintiff’s possession or ownership of property that is so substantial that it warrants requiring the defendant to pay the property’s full value.
1. Intentional
2. Substantial interference with
3. D pays full value of MV at time of conversion

Trespass to Land: Trespass to land is the intentional physical invasion of the land of another.
1. Intentional;
2. physical invasion of another property

Question 16

Intentional Tort Defenses

Answer 16

Consent: Plaintiff consents to defendant’s conduct. Consent can be express or implied.

Self-Defense: A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact, and any threatened confinement or imprisonment

Defense of Others: A person may use reasonable force to defend another person when **he reasonably believes **that the other person could have used force to defend himself.

Defense of Property: A person may use reasonable force to defend his real or personal property.
* Reasonable, appropriate force
* No deadly force, unless they are breaking in
* Mechanical devices - may only use force would be able to use if present

Arrest
* P was exercising legal rights and duties by restraining D

Shopkeeper’s Privilege: Shopkeepers have a privilege to temporarily detain individuals whom they reasonably believe to be in possession of shoplifted goods.
* Shopkeeper has reasonable belief;
* of shoplifted good;
* detains person in reasoanble manner for reasonable time.

Public/Private Necessity: A person may interfere with the real or personal property of another when it is reasonably and apparently necessary to prevent great harm to third persons or the defendant himself
* Public: Public necessity applies when the threatened harm was to the community at large or to many people. Should property be damaged by the public necessity, no compensation is owed.
* Private: Applies when a person acts to prevent injury to himself or his property, or the person or property of another – must pay damages

Question 17

Negligence (Duty)

Answer 17

Under the majority, Cardozo, view, a duty is owed to every forseeable victim in the “zone of danger.” Under the minority, Andrews, view, a duty is owed to everyone.

Standard of Care: The standard of care is that of a reasonable prudent person in a similar situation. This can be modified the person is a:
* Minor (unless they are doing adult activities)
* Professional
* Fireman’s Rule - Firefighters and cops who are injured in the line of duty are prohibited for suing for negligence for injuries that are inherent ot the job
* Physical Impaired

Requirements to Act: Generally a defendant does not have an affirmative duty to act unless:
1. Special Relationship;
2. Caused the danger;
3. Volunteer assistance.

Question 18

Negligence Per Se/Staturory Negligence

Answer 18

Negligence Per Se (Establishes Duty and Breach)
1. Defendant violates a statute or ordiance
2. The victim is in a class to be protected by the statute;
3. The harm was of type designed to be prevented
4. the harm was what caused victim’s injury

Question 19

Duty of Landowners

Answer 19

Duty of Landowners:
* Flagrant Trespassers - No duty
* Known Trespassers - Duty to warn of artificial hazards
* Invitees - Duty to warn of known dangers
* Licensees - Duty to check for dangers

Question 20

Vicarious Liability

Answer 20

Vicarious Liability: An employer will be liable for acts of the employee within the scope of the employment.

An employer is not liable for intentional torts unless within general idea of job.

Frolic v. Detour
**Frolic: **An employer is not liable for torts
committed by an agent while the agent **is substantially deviating from the planned conduct **such that she is acting for her own purposes (frolic).
**Detour: **A small deviation from the planned
conduct (mere detour) is permissible, and the agent will still be within the scope of the agency relationship.

No liability for **independent contractors **unless: (1) non-delegable duty; or (2) ultrahazardous activity

Question 21

Negligence (Breach)

Answer 21

A person breaches their duty when they act below the standard of care

Res Ipsa Locquiter: No negligence shown, but the injury would have not have happened without the presence of negligence. “The thing speaks for itself”

Question 22

Negligence (Causation)

Answer 22

Actual Cause: But-for the defendant’s conduct, would the plaintiff have been injured.
Proximate Cause: A defendant is liable for all harm that is reasonably foreseeable and for any intervening causes that are foreseeable.

Intervening/Superseding Causes

Question 23

Negligence (Damages)

Answer 23

The plaintiff suffered damages that were not just non-economic.
Presumed joint and several liability, can get contribution.

Question 24

Negligent Infliction of Emotional Distress

Answer 24

Defendant engages in (1) negligent conudct; (2) plaintiff suffers serious emotional distress that results in physical harm.
* For bystanders, must be in zone of danger
* For related bystanders, observe the danger but does not need to be in zone of danger.

Question 25

Negligence Defenses

Answer 25

• Contributory Negligence: In contributory negligence j(x), any negligence on plaintiff’s part precludes recovery.
  However, if D had “last clear chance” to avoid the injury, they will still be liable.
• Comparative Negligence: P damages reduced by amount they were negligent.
• Assumption of the Risk: Person appreciated the risk and did it anyways

Question 26

Strict Liability

Answer 26

Animals
An owner is liable for trespass
Wild: An owner liable for wild animals that cause harm due to their “dangerous propensities”; or if someone gets frightened of them
Domestic: Injuries caused by domestic animals only if the owner knew or had reason to know of that particular animal’s dangerous propensities.

Ultrahazardous Activities: (1) Activity creates high risk of harm; (2) risk cannot be eliminated with reasonable care; (3) not common or appropriate to location; and (4) danger outweighs the activity’s value

Defense
Assumption of the risk.

Question 27

Product Liability

Answer 27

A seller of a product is liable without fault for
personal injuries caused by a defective product. Plaintiff must prove the following elements: commercial supplier, defective product * & existence of defect, actual cause, proximate cause, and damages.

P must show 1) D was a merchant; 2) defective product; 3) existence of defect when product left D’s control; and 4) P or forseeable person, was using product in a forseeable way

Plaintiff must show:
* Manufacturing Defect: A manufacturing defect exists when a particular instance of the product is different and more dangerous than all of the others
because this particular product deviated from its intended design.

• Design Defect: Design itself is defective. Use
• Consumer Expectation Test: Product must meet minimum safety expectations of ordinary users when used in reasonably forseeable manner
• Risk Utility Test: Product is defective if the risk of danger inherent in the design outweighs the benefits and there was a reasonble cost-effective alternative design.
• Failure to Warn: Fails to give adequate warnings as to a known (or should have been known) danger in the product or in a particular use of the product that is non-obvious.
  Some courts use risk-utility analysis when the risk could have been reduced or avoided by reasonable instructions or warnings.

Defenses
Assumption of the risk
Misuse
Compliance with industry standards - not dispositive

Question 28

Product Warranties

Answer 28

Express warranty: An express warranty is any statement of fact or promise concerning goods. The plaintiff need only show that the product did not live up to its warranty to establish breach of express warranty.

**Implied warranty of merchantability: **A warranty of merchantability is implied in every sale of goods, warranting that they are fit for the ordinary purposes for which the goods are used.

**Fitness for a particular purpose: **A warranty of fitness for a particular purpose is implicated in every sale of goods when the seller knows or has reason to know that the buyer wants the goods for a particular purpose and the buyer relies on the seller’s judgment to recommend a suitable product.

Question 29

Nuisance

Answer 29

Private:
Private nuisance is a substantial, unreasonable interference with another private individual’s use or enjoyment of his land.

Public: Public nuisance is a substantial, unreasonable interference with the health, morals, welfare, safety, or property rights of the community.
- Recovery not available for private parties unless special injury
- Interference: Courts consider factors establishing harm to the community including the location of the nuisance, the frequency and duration, the degree of damage, and the social value of the activity.

Defense
Coming to nuisance - not dispositive

Question 30

Defamation

Answer 30

A false and defamatory statement of or concerning plaintiff is published to a person other than the plaintiff causing damage to the plaintiff’s reputation.

1. Defamatory Statement - statement that holds the person up to scorn or public embarassment
2. Of or about the plaintiff
3. that causes harm to their reputation
4. published - (spread by a third party)
5. damages (presumed for libel; prove special damages unless per se (about business, loathsome disease, criminal behavior, sexual misconduct))

**Matters of public concern: **The constitutional law defamation standard of fault applies when the defamation is regarding a matter of public concern.

Public figures or public interest require actual malice, which mean knew or should have known that it was false

Defenses
Consent
Truth

Question 31

Fraud/Negligent Misrepresentation

Answer 31

Fraud: Intentional misrepresentation is common law fraud or deceit. One must prove:
1. **Misrepresentation (by actions or intentional concealment) of a material fact,
2. Scienter **(knowledge of statement’s falsity or reckless indifference to the truth),
3. Intent to induce plaintiff’s reliance on the misrepresentation,
4. Causation,
5.** Justifiable reliance** by plaintiff, and
6. Pecuniary damages to plaintiff.

Neglgient Misrepresentation
1. Same as above but negligent

Question 32

Privacy Torts

Answer 32

cInvasion of Privacy: intrusion into a plainitff’s private affairs, where one has a reasonable expectation of privacy

False Light: (1) one attributes to plaintiff views they do not hold; (2) false light is objectionable to reasonable person; (3) publication to public
* Public figures or matter of public interest must show actual malice (knew or should have known)

Misappropriation of Image: Misappropriation (of plaintiff’s picture or name) is the unauthorized use of the plaintiff’s picture or name for commercial advantage.

Private Facts: (1) Public disclosure of private facts that are not of public conncern; and are (2) objectionable to reasonable person

Question 33

Business Torts

Answer 33

Interference with Business Relations requires
1. Existance of valid contractual relationship or imminent relationship between plaintiff and 3rd party
2. Defendant knew or should have known of relationship
3. Defendant intentionally interfered by inducing breach or termination
4. Damages

Question 34

Transfer of Intent

Answer 34

Intentional Torts can transfer the intent from one party to another; or from one intentional tort to another.

Say you try to punch A but hit B, liable for intentional tort to B.

Say you mean to assault A but you hit A, liable for assault and battery.

Question 35

Tort Remedies

Answer 35

Legal Remedies: Require Causation (actual and proximate) and Certainty

• Compensatory Damages: Put P in the position he would have been in had the wrong and resulting injury not occured
• General Damages: Harm to real property caused by trespass, plaintiff is entitled to damages measured by (1) cost to repair or replace destroyed property; or (2) diminution in FMV
• Punitive Damages: Injury results from willful, wanton, or malicious conduct and must be no more than 10x compensatory damages
• Nominal Damages: If no injury

Restitution remedies: Result of Unjust Enrichment
Restitution: Traditionally, not allowed for trespass but modernly, is allowed for money judment recovery. If defendant is conscious wrongdoer, measure of recovery is digorgement of all gains.

Equitable Remedies
Injunction - Mandatory (less likely to be granted) or prohibative