Torts

Question 1

elements of negligence

Answer 1

• Duty (questions of law) – most important for test.
• Breach (issue of facts)
• Causation (logic and policy)
• Damages (less tested, but a blend of fact and law)

Question 2

What is the general duty of care?

Answer 2

A reasonably prudent person acting under similar circumstances with the same physical limitations
* Make no allowance to individual shortcomings.
* Mental deficiency no excuse.
* People who have special knowledge are held to the standard of a reasonable person with their knowledge.

Question 3

to who is a duty owed?

Answer 3

Duty owed to foreseeable victims: those within the “zone of danger
* Rescuers are always foreseeable victims (but see firefighers rule).
* Intended economic beneficiaries are foreseeable victims

Question 4

What duty does a minor owe?

Answer 4

• Children under 5 owe no duty of care.
• Children 5-18 are held to the standard of a child of similar age, intelligence, and experience
• Children engaged in adult activity use the default duty of care. (operating a motorized vehicle—not just cars, driving a boat, shooting a gun).

Question 5

What duty does a professional owe?

Answer 5

A professional is held to the knowledge and skill of an average member of the profession or occupation
* This is a more concrete standard.
* Custom of the profession sets the standard of care in professional negligence cases.
* Most bar questions are about medical malpractice.
* Today there is a national rather than a local standard of care in medicine.
* A doctor has a duty to disclose the risks of treatment.

Question 6

What duty does a landowner performing activities on their land owe?

Answer 6

• default standard of care (A reasonably prudent person acting under similar circumstances with the same physical limitations)
• ex: operating a plant nursery

Question 7

what duty does a landowner owe to Unknown Trespassers? (unforeseeable)

Answer 7

no duty of care

Question 8

What duty does a landowner owe to Known/Anticipated/Habitual Trespasser? (foreseeable)

Answer 8

Possessor must warn of or make safe conditions that are:
1) artificial,
2) highly dangerous,
3) concealed, AND
4) known to the land possessor

(Known manmade deathtraps).

Question 9

what duty does a landowner owe to Licensees? And what is a licensee?

Answer 9

A licensee is one who enters onto the land with the possessor’s permission for their own purpose or business, rather than for the possessor’s benefit. Do not financially enrich defendant. ex. Social guest

Possessor has a duty to warn of or make safe conditions that are:
1) hazardous,
2) concealed and
3) known to the land possessor in advance

• (all known traps).
• The possessor has no duty to inspect or repair.

Question 10

What duty does a landowner owe to invitees? And what is a invitee?

Answer 10

An invitee is one who comes onto the property for the benefit of the landholder, such as business customer. Also applies when land is held open to the public for business purposes

Possessor has a duty to warn of or make safe conditions that are:
1) hazardous,
2) concealed and
3) known to the land possessor in advance OR could have been discovered by a reasonable inspection

• (all reasonable discoverable traps).
• The possessor has a duty to inspect!
• A person loses her status as an invitee if she exceeds the scope of the invitation – becomes licensee (no duty to inspect) or

Question 11

What duty does a landowner owe to public recreational users

Answer 11

landowner not liable for public recreational use unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

Question 12

what duty does a vendor have to a vendee?

Answer 12

A vendor must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and which the vendor knows the vendee is not likely to discover on a reasonable inspection.

Question 13

What is the doctrine of attractice nuisance?

Answer 13

Possessor of land will be liable for harm to trespassing children if the if plaintiff can show:
* 1) the existance of a dangerous artificial condition that owner should have been aware of
* 2) the Condition was likely to cause injury to children
* 3) the Expense of remedying is low compared to risk of harm.
* 4) the posessor failed to exercside reasonable care to protect children.

Question 14

Which classes of relationship create a hightened duty of care?

Answer 14

• parent/guardian;
• family members; (Modern trend to include any people who know each other)
• Common carriers
• innkeepers
• shopkeepers
• places of public accommodation

Question 15

Is there a duty to rescue?

Answer 15

• No duty to rescue BUT a party that assumes a duty through action must follow through with reasonable care.
• Many states have enacted Good Samaritan statutes – insulate imperfect rescuers as well as doctors and nurses from ordinary (but not gross) liability.
• If you are cause of peril you will have a duty to rescue.

Question 16

emotional distress in addition to physical injury by tort

Answer 16

If physical injury has been caused by commission of a tort, the plaintiff can “tack on” damages for emotional distress as a “parasitic” element of their physical injury damages, without the need to consider the elements of the emotional distress torts.

Question 17

Three types of Negligent Infliction of Emotional Distress (pure emotional distress)

Answer 17

Three Types:
* Near miss
* Related Bystander
* Sensitive Business Relationship

Question 18

Negligent Infliction of Emotional Distress (pure emotional distress) - Near Miss Cases

Answer 18

1) Defendant breached duty of care
2) Defendant created a foreseeable risk of physical injury to the plaintiff (Plaintiff is within “zone of danger” - high risk of physical impact)
3) Plaintiff suffers physical symptoms from the distress

Question 19

Negligent Infliction of Emotional Distress (pure emotional distress) - Related Bystander

Answer 19

1) Defendant breached duty of care
2) Defendant injures or kills close relative of bystander.
3) Bystander personally witnesses injury of a close relative (spouses, parent/minor children)

• No physical symptom requirement.

Question 20

Negligent Infliction of Emotional Distress (pure emotional distress) - Sensitive Business Relationship

Answer 20

1) Defendant breached duty of care
2) Highly foreseeable that the nature of relationship could cause emotional distress.
* YES: Medical Lab/patient – misdiagnosis; mortuary/family – negligent cremation of deceased contrary to family’s instructions;
* NO: customer/dry cleaner – ruins clothing).
* No physical symptom requirement

Question 21

Negligence Per se

Answer 21

A plaintiff may “borrow” criminal statute to prove duty and breach when:
1) A defendent violated a criminal statute without excuse
2) The Plaintiff is a member of the class of persons that the statute is trying to protect (pedestrians) AND
3) The statute is designed to prevent the type of harm suffered by the plaintiff (being hit by a car)

• This established duty and breach, but plaintiff must still establish caustation and harm.

Even if test is met, the court will not use the stutory standard if:
* Compliance with statute would be more dangerous than not doing so, OR
* Compliance would have been impossible.

Question 22

Res Ipsa loquitur (duty/breach established by circumstantial evidence)

Answer 22

Establishes a prima facie case for negligence and defeats directed verdict if:

1) The accident causing the injury is a type that would not normally occur unless someone was negligent, and
2) The negligence is probably (more likely than not) attributable to the defendant (you probably sued the right person).

• Can often be satisfied by showing that the instrumentality causing the injury was in the exclusive control of the defendant
• Cannot be used when there are multiple equally likely causers (unless joint venture)
• Basically, “this wouldn’t have happened if someone weren’t negligent, and it was probably him.”

Question 23

Eggshell Skull Doctrine

Answer 23

• The defendant takes the plaintiff as they find the plaintiff; meaning, the defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable.
• Applicable in negligence and in intentional torts.

Question 24

Contributory negligence

Answer 24

• Old rule, no longer used unless stated in question.
• Contributory negligence means the plaintiff cannot recover if they were partially responsible for their injuries
• Intent exception - Contributory negligence is not a defense to wanton and willful misconduct or intentional tortious conduct.
• Protective Statute exception
• Last Clear Chance Exception

Question 25

Comparative negligence

Answer 25

• Under comparative negligence plaintiff’s recovery is reduced based on their share of the fault.
• Pure comparative negligence (majority rule) - recovery allowed no matter how great plaintiff’s negligence was.
• Partial/modified comparative negligence - no recovery is plaintiff more than 50% at fault.
• The plaintiff’s negligence will be taken into account in most states even though the defendant’s conduct was “wanton and willful” or “reckless.”
• The plaintiff’s negligence is no defense to intentional tortious conduct by the defendant.

Question 26

Transferred Intent

Answer 26

The transferred intent doctrine applies when the defendant intends to commit a tort against one person but instead:
* Commits a different tort against that person
* Commits the same tort as intended but against a different person OR
* Commits a different tort against a different person

Applies to (i) assault, (ii) battery, (iii) false imprisonment, (iv) trespass to land, and (v) trespass to chattels.

Question 27

Actual causation

Answer 27

• Actual cause alone is insufficient in determining the party who is liable.
• “But for” test – several acts each insufficient to cause injury alone but combine to cause injury.
• Substantial Factor Test – several causes and any one alone would have been sufficient. (joint/several)
• Alternative Cause Approach – Several acts but only one causes the plaintiff’s injury. Burden shifts to the defendant and one should prove that the other is liable or both will be liable.

Question 28

Elements of Tortious Battery

Answer 28

1) Intentional Act by Defendant
2) Causing
3) Harmful or Offensive (unpermitted) Contact.
4) Against the plaintiff’s person

• must have the intent to perpetrate the battery or another tort. Otherwise probably negligence.
• Plaintiff’s person – Includes anything on the plaintiff’s person or in their hands (extended personality).
• Contact need not be instantaneous (poisoning someone’s food counts as battery).
• The plaintiff can recover nominal damages even if actual damages aren’t proved.
• Consent may be implied from custom, conduct, or words, or by law.

Question 29

Elements of Assault

Answer 29

1) Intentional Act by defendant
2) Causing
3) Reasonable apprehension
4) Of Immediate Battery

• Plaintiff must have an awareness of the imminent touch or battery.
• Mere words alone lack immediacy
• BUT words can negate the immediacy requirement
• Idle threat is still assault if the plaintiff reasonably believes that battery is imminent.
• The plaintiff can recover nominal damages even if actual damages aren’t proved.
• A defendant will be liable if he knows of the plaintiff’s unreasonable fear and uses it to put the plaintiff in apprehension.

Question 30

Elements of Tortious False Imprisonment

Answer 30

1) Act (or omission)
2) Causing restraint of the Plaintiff
3) In a bounded area.

• Plaintiff must be aware of confinement or harm.
• Credible threats are sufficient as an act of restraint
• An Omission, failure to act can constitute a restraint if one has a duty.
• Moral pressure or future threats are not sufficient.
• There must be no reasonable means of escape known to plaintiff. Not reasonable if: **Dangerous, Disgusting, Humiliating, Hidden **
• The plaintiff can recover nominal damages even if actual damages aren’t proved.
• Humiliation is a foreseeable consequence of a false arrest so can also be recovered for.

Question 31

Intentional Infliction of Emotional Distress Elements

Answer 31

1) Extreme and outrageous conduct (exceeds all bounds of decency tolerated in a civilized society).
2) Intent on the part of defendant to cause plaintiff to suffer severe emotional distress, or Recklessness as to the effect of defendant’s conduct,
3) Causation
4) Damages (suffering of severe emotional distress)

• Physical Injury NOT required
• Non outrageous conduct can become outrageous by:
• Being repetitive or continuous;
• Being committed a by a certain type of defendant (Common Carrier or inkeeper);
• Being committed against a certain type of plaintiff (children, elderly, pregnant women, vulnerable).

Question 32

Trespass To Land

Answer 32

1) Physical Invasion (by person or object)
2) Of plaintiff’s real property (right to possess)
3) Intent to bring about physical invasion
4) Causation

the damage is the tresspass itself

Question 33

Trespass to Chattles/Conversion

Answer 33

(i) an act by defendant interfering with plaintiff’s right of possession in the chattel,
(ii) intent to perform the act bringing about the interference,
(iii) causation,
(iv) damages

• if not too severe–trespass–remedy is damages
• if so serious that it warrants the full payment of Defendant’s property– conversion–remedy is market value.

Question 34

defenses to intentional torts

Answer 34

• consent (express, implied, custom) - unless fraud
• self defense
• defense of others
• defense of property
• Shopkeepers privilege (reasonable belief; manner; time)
• public necessity (absolute)
• private necessity (qualified - pay damages)

Question 35

Vicarious Liability Employer – Employee (respondeat superior)

Answer 35

Employer can be held liable if employee acted within the scope of employment.

Detour – minor departure from scope of employment – Employer Liable.
Frolic – major departure from scope of employment – Employee Liable.
**Intentional torts **tend to be outside the scope of employment unless:
* Employee is acting to further the employer’s purposes(overzealous)
* Force is authorized in the employment (bouncer)
* Friction is generated by the employment (bill collector)

An employer can seek indemnification from employee.

Employers may be liable for their own negligence (not vicarious) in in selecting or supervising an employee.

Question 36

Vicarious Liability Employer – Independent Contractor

Answer 36

Hiring party is not liable for the torts of a contractor.

Exceptions:

A business owner can be held vicariously liable if:
A) An independent contractor working on the business premises hurts a customer. The duty to keep a premise safe is a nondelegable duty. OR
B) The independent contractor is engaged in inherently dangerous activities

Employer may be liable for their own negligence (not vicarious) in selecting or supervising the independent contractor

Question 37

Elements of private nuisance

Answer 37

1) a person intentionally (awareness sufficient) or negligently,
2) unreasonably interferes with another’s (intolerable)
3) **peaceful use or enjoyment of property ** (rather than exclusive possession as in trespass to land)

• Minor interference is not actionable. The interference **must be offensive, inconvenient, or annoying to the average person in the community. **
• Harm because of unique sensitivity not actionable.
• The severity of the inflicted injury must outweigh the utility of the defendant’s conduct on their own land, considering the neighborhood, land values, and existence of any alternative courses of conduct open to the defendant.

Question 38

elements of public nusiance

Answer 38

• An act that unreasonably interferes with the health, safety, or property rights of the community.
• Recovery by a private party is available for a public nuisance only if the private party suffered unique damage not suffered by the public at large

Question 39

Elements of strict liability for abnormally dangerous activities

Answer 39

Strict liability if the activity:
1) Creates a foreseeable risk of serious harm
2) Cannot be made safe even with reasonable care.
3) Is not in common usage in the area where it is conducted.

Question 40

Strict Liability for Products

Answer 40

1) A defendant must be a Merchant (manfacturer to retailer)
2) Product must be defective
3) Product was not substantially altered since leaving Defendant’s control
4) Plaintiff was making foreseeable use of the product at the time of injury.

• NO Strict liability for Casual Sellers or Service Provider
• **Manufacturing defect **– Product more dangerous than a properly made product.
• Design defects – The risks associated with a product’s design outweigh the utility of the design choices.Plaintiff must show that alternative design would have been safer, practical, and economically feasible
• **Information Defect **– Adequate warning must be. Prominent, Comprehensible, and Provide information about mitigating risk.

Question 41

Elements of Defamation

Answer 41

1) Statement impugns character (defamatory)
**2) Identifies Plaintiff **
3) Published
**4) False **

5) Fault – depends on plaintiff
* Private Person: Negligent Failure to investigate truthfulness.
* Public Figure (fame or involved with issue of public concern): Malice (knowledge of falsity OR reckless disregard for truth requiring subjective doubt as to veracity)

6) Damage -Proof of economic harm required for reputation. Personal humiliation and mental distress also allowed as long as the plaintiff presents evidence.
* Libel – defamation embodied in permanent form such as written or print publication. Damage is presumed (don’t need to be proved).
* Slander – defamation by spoken word