Torts

Question 1

Battery

Answer 1

To establish battery, plaintiff must establish that:
D intended to cause contact with P’s person,
his **affirmative conduct ** causes such contact, and
the condact causes bodily harm or is offensive to P.

Question 2

Offensive conduct

Answer 2

A reasonable person would be offended or D knows that the contact would by highly offensive to the specific plaintiff

Question 3

Assault

Answer 3

To establish assault, a plaintiff needs to establish that the defendant intended to cause P to anticipate imminent and harmful contact, and D’s affirmative conduct causes P to anticipate such contact.
The plaintiff must be aware

Question 4

Intentional Infliction of Emotional Distress

Answer 4

To prove IEED, the P needs to show that D acted with extreme or outrageous conduct, intentionally or recklessly, and caused P severe emotional distress.

Question 5

Extreme and outrageous conduct

Answer 5

conduct that is beyond human decency, truly outrageous

Question 6

False Imprisonment

Answer 6

to establish false imprisonment, the plaintiff needs to show that D intended to confine P within a limited area, D’s conduct causes P’s confinement or fails to relase P, and P is conscious of the confinement.

Question 7

Consent

Answer 7

Full defense
Actual, Apparent,Presumed, Emergency

Question 8

Self Defense

Answer 8

must reasonably believe the force is necessary and proportionate to force P is inflicting
No duty to retreat, but if P withdraws, D must stop
Initial agressors not generally entitled to claim self-defense unless P escalates from nondeadly to deadly
Bystanders: not liable for injuries to bystanders, can use force against bystander as long as P is using greater force and it is immediatley necessary

Question 9

Defense of Third persons

Answer 9

reasonable belief that defended party would be entitled to use force themselves
immediatley necessary

Question 10

Defense of property

Answer 10

D is privileged to prevent P’s imminent intrusion if D asked P to stop and means are reasonably proportionate
No deadly force allowed
no force allowed to reclaim property, must use legal action, **fresh pursuit **exception for personal property

Question 11

Discipline of minor child

Answer 11

parents can use reasonable force and confinement, so can educators

Question 12

Protect another from self harm

Answer 12

can use force if:
D reasonbly believes it necessary to prevent death/serious bodily harm and
that person does not understand the nature/consequences of their actions

Question 13

Citizens arrest

Answer 13

felony: okay if crime was actually committed and reasonable to suspect the person
misdemeanor: only if committed in presence of arresting party
Assisting police: okay if citizen reasonably believes the police need help
Against Intervenor: okay to use force against someone intervening/aiding an arrestee to escape

Question 14

Force by law enforcement

Answer 14

privileged to use force to arrest, investigate/prevent crime, enforce the law as long as they are on duty

Question 15

Use of force in any arrest

Answer 15

only can use force if reasonably necessary and proportionate, for a legitimate purpose in the context of arrest, and the intent to arrest is communicated (unless useless)

Question 16

Merchant’s privelege

Answer 16

Seller of goods privileged to use force for investigating potential theft, recapturing personal property, or faciliatating arrest if:
Merchant** reasonably beleives** the other has stolen goods and the use of force is on or immediately near the merchant’s premises, reasonable, and of reasonable duration.

Question 17

Trespass to chattels

Answer 17

Tresspass to chattels is the intentional interference with the tangible personal property of another by using, intermeddling, or taking possession.
Mistake of law or fact is not a defense
Damages: actual damages or loss of use, compensation for cost of repair

Question 18

Conversion

Answer 18

Conversion is an intentional act depriving P of personal property (more serious than tresspass to chattels)
Mistake is not a defense
damages: full value of property

Question 19

Trespass to Land

Answer 19

intentional act causing physical entry onto the land of another

Question 20

Necessity as defense to tresspass

Answer 20

private: qualified privilege to enter or remain on lant to protect self or property from harm, not liable for the trespass itself, but liable for any damages
public: unqualified privilege to avert imminent public disaster

Question 21

Nuisance

Answer 21

Private: interference is nontrespassory, unreasonable, intentional, and substantial
Public: unreasonble interference witha right common to general public, but P suffers harm different in kind from the public

Question 22

Transferred intent

Answer 22

different person: when D intends to commit barrery, assault, or false imprisonment against one person, but does it to another
different tort: when D intends to commit battery and instead does assault or vice versa
Does not apply to transfer intent from personal injury tort to property tort, or IIED

Question 23

Negligence

Answer 23

Negligence requires Duty, Breach, Causation, Damages

Question 24

Duty

Answer 24

One has a duty to prevent foreseeable risks of harm to foreseeable plaintiffs
Majority view: liable only to those within the forseeable zone of harm
Minority: liable to anyone injured from a breach of duty

Question 25

Standard of Care

Answer 25

Must act as a reasonably prudent person in the same situation child: must act as a reasonable child of the same age, intelligence or experience unless high risk adult activity

Question 26

Common carriers

Answer 26

highest duty of care consistent with practical operation of the business

Question 27

Sellers of property

Answer 27

duty to disclose known, latent, unreasonably dangerous conditions

Question 28

Landowners duty to trespassors

Answer 28

refrain from willful wanton, reckless misconduct Discovered: warn or protect against concealed dangers Undiscovered: generally no duty unless owner should reasonably know, then same as licensee

Question 29

Attractive Nuisance

Answer 29

A landowner is liable for injuries to trespassing children if there is an **artificial** condition that poses an **unreasonable** risk of bodily harm, the children** cannot appreciate** the danger, the **burden** of eliminating the danger is slight, and the owner fails to exercise **reasonable care.**

Question 30

Landowner duty to licensee

Answer 30

social guests must warn of concealed dangers that are known or should be known use reasonable care in conducting activities no duty to inspect

Question 31

Landowner duty to invitees

Answer 31

reasonable care to **inspect**, **discover** dangerous conditions, then **protect** invitee from them **nondelagable** duty does not extend beyond scope of **invitation** if land open to public for recreation, not liable unless charge a fee or grossly negligent

Question 32

Landlord duty of care

Answer 32

liable for injuries occuring in common areas resulting from hidden dangers, negligent repair, or failure to repair

Question 33

Breach

Answer 33

D's conduct fell below the standard of care

Question 34

Negligence per se

Answer 34

There is a criminal or regulatory statute D violates the statute the harm to plaintiff is of the type the statute seeks to prevent and the plaintiff is in the class of people the statute seeks to protect

Question 35

Res Ipsa Loquitor

Answer 35

the accident would not have normally occured absent negligent conduct instrumentality was in D's exclusive control

Question 36

Causation

Answer 36

Causation requires actual and proximate cause. Actual cause is but for causation, meaning but for the defendants negligence, the harm would not have occured. (or substantial factor for 2+ Ds) Proximate cause: the harm to pliantiff was a reasonably forseeable consequence of D's conduct

Question 37

Damages

Answer 37

requires physical harm or property damage P's recovery limited if failure to mitigate

Question 38

Contributory Negligence

Answer 38

minority view, P's negligence is a complete bar to recovery unless last clear chance doctrine applies

Question 39

Comparative negligence

Answer 39

majority Pure: P's damages reduced by their own fault Partial: P recovers proportional damages unless P is equally at fault (minority) or more at fault (majority)

Question 40

Assumption of the Risk

Answer 40

Implied: knowledge of a specific risk and unreasoanbly voluntarily proceeding Express: risk assumed by agreement through exculpatory provisions

Question 41

Negligent Infliction of Emotional Distress

Answer 41

P is in zone of danger and threat of physical impact caused emotional distress P is outside zone of danger but on the scene and witnessed an injury to a close relative Physical symptoms required unless misinformed about family death or corpse mishandled

Question 42

Wrongful death

Answer 42

brought by family member for loss of decedent

Question 43

Survival action

Answer 43

brought by family on behalf of decedent for harms to decedent

Question 44

Loss arising from injury to family member

Answer 44

loss of consortium/ loss of society

Question 45

Employer Liability for Employee

Answer 45

Vicariously liable if employer has a **right to control **the means and methods of employee, the tort is within the **scope of employment** employer may be liable for a **detour** but not a frolic directly liable for negligent hiring, supervision

Question 46

Liability for independent contracts

Answer 46

An employer is generally not liable for an IC except where employer has retained control, abnormally dangerou activity, nondelegable duty, apparent agency directly liable for negligent selection

Question 47

Car owner

Answer 47

negligent entrustment of car if D knows/should know of driver's or user's nelignet propensity Family purpose: liable for family members driving with permission

Question 48

Sharing liability

Answer 48

joint and several: D liable for single indivisible harm is liable for the entire harm contribution: D who pays more than share can recover excess from co-defendant several liablity: D only pays for proportionate share indemnity: shifts liability to a third party

Question 49

Strict Liability for abnormally dangerous activities

Answer 49

Activity must not commonly be engaged in inherent and foreseeable high risk of harm Strict liability is limited to the harm expected from activity ex: explosives, fireworks, etc.

Question 50

Strict liability for animals

Answer 50

owner of a wild animal or abnormally dangerou domestic animal with reason to know of their dangerous propensity is strictly liable for injuries also strictly liable for fearful reaction to sight of an unrestrained wild animal owner of a trespassing animal (other than a household pet) is strictly liable for reasonably foreseeable damage caused by the animal

Question 51

Defenses to abnormally dangerous activities or animal strict liability

Answer 51

Contributory and comparative negligence is not a defense Assumption of the risk bars liability so long as P was aware of the risk Trespassors: not liable for injuries inflicted by animals against a trespassors except sometimes for vicious watch dog

Question 52

Negligent Products Liability

Answer 52

Duty: reasonable care to any **foreseeable** plaintiff by manufacturer, distributor, seller Breach: failure to exercise reasonable care in **inspection**/sale Causation: defect **existed** when left manufacturer's control and injury occured when product was **used in a foreseeable way** Damages: personal injury or property damage

Question 53

Strict Products Liability

Answer 53

Duty: D who is in business of selilng product, is under absolute duty to provide a safe product Breach: one of the 3 types of defects: Causation: defect existed when sold and harm occured when product was used foreseeable way Damages: personal injury or property damage

Question 54

Manufacturing Defect

Answer 54

Product does not conform to the D's own specifications

Question 55

Design Defect

Answer 55

Consumer expectation test: the product is more dangerous that an ordinary consumer would expect Risk utility test: there is a less risky design alternative that is feasible, the risks outweigh the benefits

Question 56

Failure to warn

Answer 56

there is a **foreseeable** risk of harm that is **not obvious **to a ordinary user and the risks could have been reduced or avoided with **proper warning** **exception**: learned intermediary

Question 57

Defenses to SL products liability

Answer 57

**Contributory** negligence: only if P unreasonably proceeded in face of known defect **Comparative** fault: only considered in damages, **Assumption** of the risk: bars recovery in contribuory negligence jdx, reduces recovery in comparative **misuse** or alteration: only bars recovery if unforeseeable

Question 58

Defamation

Answer 58

1) defamatory statement that diminishes respect towards P 2) of or concerning P 3) publication 4) Falsity (p must establish if public concern/public figure) 5) Fault: actual malice (public figure) at least negligence (all others) 6) Damages: libel and slander per see: special damages presumed, slander: special damages need to be shown

Question 59

Defamation defenses

Answer 59

Truth Consent Absolute privilege: remarks during judicial/legislative proceedings, between spouses, required publications Qualified privileges: affecting important public interest

Question 60

Misappropriation

Answer 60

unauthorized use of P's picture or name for D's advantage

Question 61

Intrusion upon seclusion

Answer 61

D's intentional intrusion into P's private affiars that would be objectionable to a reasonable person

Question 62

False light

Answer 62

publication of facts about p or attributing view to P that place him in a false light objectionable to a reasonable person under the circumstances

Question 63

Public disclosure of private facts

Answer 63

public disclosure of private facts (even if true) that would be highly offensive to a reasoanble person and is not of legitimate concern to the public

Question 64

Fraudulent Misrepresentation

Answer 64

False representation of material fact knowingly or with reckless disregard of the truth with the intent to induce P to act P actually acts P justifiably relies on the false statement damage must be actual economic loss

Question 65

Negligent misrepresentation

Answer 65

D provides false information as a result of D's **negligence** P **justifiably relies** on that information and incures **pecuinary damages** P was a member of a** limited group** for whose benefit the information is supplied Information must be relied on in a **transaction** that D intends to influence

Question 66

Intentional interference with business relations

Answer 66

interference with a valid contract or business expectancy by one with knoweldge, causing a breach resuliting in damages trade secret theft

Question 67

Injurious falsehoods

Answer 67

trade libel is a publication of a derogatory statement relating to P's business, causing interference with or damage to P's business, causing special damages

Question 68

Malicious prosecution

Answer 68

intentional and malicious insitution of legal proceedings for improper purpose and with no probable cause; the action must have been dismissed