Torts

Question 1

Intentional Torts

Transferred Intent

Answer 1

The intent to harm one party can be transferred when the D had the intent to commit a tort against one particular person, but instead
1. commits a different tort against that person, or
2. another person is injured.

Question 2

Intentional Torts

Battery

Answer 2

A D is liable for Battery when there is
1. an intentional,
2. harmful or offensive contact,
3. with the plaintiff’s person (including anything connected to the P).

Question 3

Intentional Torts

Assault

Answer 3

A D is liable for Assault when there is
1. an intentional act,
2. that causes the P to be placed in reasonable apprehension,
3. of imminent harmful or offensive contact with the plaintiff’s person.

Question 4

Intentional Torts

False Imprisonment

Answer 4

A D is liable for False Imprisonment when he
1. intentionally acts,
2. to restrain P to fixed boundaries, and
3. the P is aware of the confinement or is harmed by it.

Question 5

Intentional Torts

Trespass to Land

Answer 5

• A D is liable for Trespass to Land when he
  1. intentionally,
  2. either
  (a) enters the land of another,
  (b) causes an object or a third person to enter the land,
  (c) remains on the land, or
  (d) fails to remove an object from the land.
• Intent to trespass is not required; the only intent required is that the D intended to enter/remain on the subject land.
• Intangible Entry (gas, pollution, noise) is not sufficient for a trespass to land claim.

Question 6

Intentional Torts

(Nominal Damages)

Answer 6

Battery - Trespass to Land
A claim may be supported by nominal damages; P need not suffer actual damages.

Question 7

Intentional Torts

Trespass to Chattels & Conversion

Answer 7

• A D is liable for Trespass to Chattels when he
  1. intentionally
  2. interferes with another’s personal property, and
  3. the amount of damage is small.
• A D is liable for Conversion if the amount of interference is substantial.
• Mistaken ownership of the property is not a defense to either tort.

Question 8

Intentional Torts

Intentional Infliction of Emotional Distress

Answer 8

A D is liable for IIED if:
1. the D acted intentionally or recklessly,
2. the D’s conduct was extreme and outrageous,
3. the D’s act caused extreme emotional distress (causation), and
4. the P actually suffered severe emotional distress (damages).

Question 9

Intentional Tort Defense(s)

Consent

Answer 9

Consent is a defense to intentional torts, and may be express or implied through words or conduct.

Question 10

Negligence

Negligence Elements

Answer 10

A prima facie case for negligence requires:
1. duty (a duty of due care),
2. breach (a breach of that duty),
3. causation, and
4. damages

Question 11

Negligence

To Whom a Duty is Owed

Answer 11

• Under the Andrews view, a duty of care is owed to all foreseeable Ps.
• Under the Cardozo view, a duty of care is only owed to foreseeable Ps who are within the zone of danger.

Question 12

Negligence

Affirmative Duty to Act

Answer 12

Generally, there is no duty to act affirmatively, unless:
(a) a pre-existing relationship exists between the parties (i.e. parent-child, landowner-entrant),
(b) the D put the P in peril, or
(c) the D has already undertaken to rescue the P.

Question 13

Negligence

General Standard of Care

Answer 13

• General standard of care is that of reasonable prudent person (RPP). An RPP takes appropriate measures to avoid foreseeable risks.
• Following community customs and statutory requirements may be relevant as to what conduct is reasonable, but are not dispositive.

Question 14

Negligence

Standard of Care (Children)

Answer 14

• Children must act as a hypothetical child of similar age, experience, and intelligence.
• If a child is engaged in an adult activity, the child has a duty to act as a reasonable adult.

Question 15

Negligence

Standard of Care (Medical Doctors)

Answer 15

• A medical doctor is held to the degree of care and skill of the average qualified practitioner.
• A doctor has a duty to obtain informed consent from his patient before treatment.

Question 16

Negligence

Standard of Care (Land Owner)

Answer 16

What duty of care is owed by a landowner or possessor is determined by the type of entrant.

• Undiscovered Trespasser: No duty is owed by the landowner.
• Anticipated Trespasser: The landowner must:
  1. exercise reasonable care in operations on the property, and
  2. warn of (or make safe) highly dangerous artificial conditions that the landowner knows of.
• Licensee (social guest): The landowner must:
  1. exercise reasonable care in operations on the property, and
  2. warn of (or make safe) dangerous conditions that are known to the landowner but not apparent to a guest.
• Invitee (enters for the owner’s benefit, shop or business): The landowner owes all the duties he would to a licensee. In addition, the landowner has a duty to make reasonable inspections of the property to find and make safe non-obvious dangerous conditions.

Question 17

Negligence

Negligence Per Se

Answer 17

• Under the doctrine of negligence per se, the elements of duty and breach are established when the D breaches the statute.
• To use negligence per se, P must show that
  1. the statute’s purpose is to prevent the type of harm that the P has suffered, and
  2. the P is in the class of persons the statute seeks to protect.

Question 18

Negligence

Causation

Answer 18

• A P must show that the D’s conduct was both the actual and proximate cause of the injurry.
• Actual cause is the “but for” cause - but for D’s negligence, P would not have been injured.
• Proximate cause is the legal cause, which means that the injury must have been foreseeable result of the breach.

Question 19

Negligence

Intervening Causes

Answer 19

• Any act that occurs after the D’s breach that contributes to the harm is an intervening cause.
• Intervening causes that are dependent on (a natural reaction to) the D’s wrongful acts are usually foreseeable.
• If the intervening cause resulted in an unexpected injury, it is usually deemed unforeseeable, and the D is not liable.
• Intervening medical malpractice is always deemed foreseeable. Intervening criminal acts are usually not foreseeable.
• A negligent tortfeasor who causes the initial injury is usually liable for increased harm caused by others providing aid.

Question 20

Negligence

Eggshell Plaintiff Rule

Answer 20

The Eggshell Plaintiff Rule means that a tortfeasor takes his victim as he finds him. Thus, a D is liable for all harm a P suffers from a pre-existing mental or physical condition that makes the harm worse than what a normal person might suffer.

Question 21

Defenses to Negligence Claims

Assumption of Risk

Answer 21

• Assumption of risk is a defense to negligence, and applies if the P voluntarily assumed a known risk. It may be expressed or implied.
• A professional rescuer or firefighter assumes the risk of injury related to the job.

Question 22

Defenses to Negligence Claims

Comparative & Contributory Negligence

Answer 22

• Under pure comparative negligence (majority), the P’s negligence or assumption of risk will reduce his recoverable damages by the percentage of his own fault.
• In a contributory negligence jurisdiction, a P cannot recover damages if he contributed to his own injury.

Question 23

Negligent Infliction of Emotional Distress (NIED)

Answer 23

• Two major scenarios where a P may recover for NIED are: (1) zone-of-danger claim, and (2) bystander claim.
• Prima facie case of a zone-of-danger claim is:
  1. the D’s negligence,
  2. creates a foreseeable risk of physical injury,
  3. the P is in the zone of danger, and
  4. the P manifests physical symptoms.
• Prima facie case of a bystander claim is:
  1. the D’s negligence,
  2. the P is a contemporaneous witness to a bodily injury inflicted on the P’s close family member, and
  3. the P manifests physical symptoms.

Question 24

Vicarious Liability

Vicarious Liability (Employer)

Answer 24

• An employer is vicariously liable for an employee’s negligent acts if the employee was acting within the scope of employment (performing work assigned by the employer, or engaging in a course of conduct subject to the employer’s control).
• An employee’s intentional torts are genereally not within the scope of employment.

Question 25

Vicarious Liability

Vicarious Liability (Independent Contractor)

Answer 25

• A party is generally not vicariously liable for the torts of an independent contractor.
• Generally, if the principal has the right to control the manner and method in which the job is performed, then the person is deemed to be an employee of the principal.

Question 26

Liability of Multiple Defendants

Joint and Several Liability

Answer 26

If multiple Ds are the proximate cause of a single indivisible harm, then the P may recover the entire amount of his damages from any D.

Question 27

Economic & Dignitary Torts

Defamation

Answer 27

• Prima facie case of defamation is:
  1. a false defamatory statement,
  2. of and concerning the P made by the D,
  3. publication by the D to a third party, and
  4. damages.
• Truth of the statement is a defense to a defamation claim.

Question 28

Defamation (Slander, Libel)

Answer 28

• Slander is an oral defamatory statement. For slander, the P needs to prove special damages (pecuniary damages), unless the statement is “slander per se” (e.g. impugning business integrity of the P, attributing to the P a crime of moral turpitude).
• Libel is defamation in a permanent format. For libel, the P does not need to prove special damages.

Question 29

Defamation (Constitutional Requirements)

Answer 29

• If the P is a public figure, the P must prove the D’s reckless disregard for truth for knowledge of the falsity.
• If the P is a private figure speaking about a matter of public concern, the P must prove that the speaker was negligent.

Question 30

Defamation (Qualified Privilege)

Answer 30

• A party can claim qualified privilege as a defense to defamation when their speech serves a socially useful purpose. (e.g. An individual is recommending an employee, reporting a wrongdoing to an agency).
• The speaker must be speaking in good faith.

Question 31

Economic & Dignitary Torts

False Light

Answer 31

• False light occurs when:
  1. the D causes widespread dissemination,
  2. of the P’s beliefs, thoughts, or actions,
  3. in a false light,
  4. that would be highly objectionable to a reasonable person.
• If the P is a public figure or involves a matter of public concern, the P must show the D’s reckless disregard for truth or knowlege of the falsity.

Question 32

Economic & Dignitary Torts

Public Disclosure of Private Facts

Answer 32

• Public disclosure of private facts occurs when:
  1. the D causes widespread dissemination,
  2. of truthful private information,
  3. that would be highly objectionable to a reasonable person.
• Newsworthiness is a defense unless actual malice is present.

Question 33

Economic & Dignitary Torts

Intrusion of Privacy

Answer 33

Intrusion of privacy occurs when:
1. the D intrudes into the private affairs of the P, and
2. that would be highly objectionable to a reasonable person (i.e. reading private mail, illegal wiretapping).

Question 34

Economic & Dignitary Torts

Intentinal & Negligent Misrepresentation

Answer 34

Intentional Misrepresentation
To state a prima facie case for intentional misrepresentation, a P must show:
1. misrepresentation of a material fact,
2. the D knew that the statement was false,
3. intent of the D to induce the P,
4. actual and reasonable reliance by the P, and
5. damages.

Negligent Misrepresentation
To state a prima facie case for negligent misrepresentation, a P must show:
1. a misrepresentation by the D in a business transaction,
2. intent of the D to induce the P,
3. the D was negligent in obtaining or communicating the false information,
4. actual and reasonable reliance by the P, and
5. damages.

Question 35

Economic & Dignitary Torts

Malicious Prosecution & Wrongful Civil Proceedings

Answer 35

• A claim for Malicious Procecution requires:
  1. initiation of criminal proceedings against the accused (i.e. filing a police report),
  2. the claim was initiated for an improper purpose (not for obtaining justice),
  3. the claim was not supported by probable cause,
  4. the claim ended in the P’s favor, and
  5. the P suffered damages.
• A claim for Wrongful Civil Proceedings requires the same elements as above, except that it requires the initiation of civil proceedings.

Question 36

Economic & Dignitary Torts

Nuisance

Answer 36

• A public nuisance is:
  1. an unreasonable interference,
  2. with the health, safety, or property rights,
  3. of the community (a considerable number of people).
• To recover damages, the injured party must show actual damages.
• A private nuisance is:
  1. a substantial and unreasonable interference,
  2. with a person’s use or enjoyment of her property.
• P will be entitled to damages or an injunction.
• The primary defenses to the tort of nuisance are:
  1. coming to the nuisance, and
  2. statutory compliance.

Question 37

Strict Liability

Abnormally Dangerous Activity

Answer 37

• A D is strictly liable for damages caused to a P when engaging in an abnormally dangerous activity.
• An abnormally dangerous activity is one that:
  1. is not of common usage in the community, and
  2. creates a foreseeable and highly significant risk of physical harm (even when reasonable care is exercised).

Question 38

Products Liability

Strict Products Liability

Answer 38

• A commercial supplier of a defective product is subject to strict liability for any harm caused by the product.
• A claim for strict PL requires the P to show:
  1. the product was defective when it left the hands of the D;
  2. the product was not altered when it reached the P;
  3. the product caused an injury to P when it was being used in an intended or unintended foreseeable use; and
  4. the D is a commercial supplier who routinely deals in goods of this type.

Question 39

Strict Products Liability (Types of Defects)

Answer 39

Proving that the product was defective is based upon one of three theorires: (1) manufacturing defect, (2) failure to warn, or (3) design defect.
* Manufacturing Defect exists when the product:
1. differs from the intended design, and
2. is more dangerous than if made properly.
* Failure to Warn exists when:
1. the P was not warned of the risks of the product,
2. which are not obvious to an ordinary user but known to the designer/manufacturer.
* Design Defect exists if the product can be made or manufactured safer, more practical, and at a similar cost.

Question 40

Products Liability

Liability for Negligence

Answer 40

A prima facie case for negligence requires:
1. duty
2. breach
3. causation, and
4. damages

Question 41

Products Liability

Liability for Breach of Warranty

Answer 41

• The Implied Warranty of Merchantability is implied in all sales of goods Ks, and all goods sold by a merchant (a person dealing in goods of the kind) must be fit for their ordinary purpose.
• An Implied Warranty of Fitness for a Particular Purpose is created when:
  1. a seller knows of the buyer’s particular purpose for the goods; and
  2. the buyer relies on the seller’s skill or judgment to select or furnish suitable goods.
• An Express Warranty is created when:
  1. a seller makes an affirmation of fact, promise, description, or provides a sample;
  2. which relates to the goods; and
  3. it becomes part of the basis of the bargain.