Torts

Question 1

Torts

Übersicht

Answer 1

I. Intentional Torts
II. Negligence
III. Strict Liability
IV. Product Liability
V. Defamation
VI. Nuisance
VII. Privacy Torts
VIII. Sonstige

Question 2

I. Intentional Torts

Delikte

Answer 2

1. General Elements
2. Battery
3. Assault
4. Fals imprisonment
5. Intentional infliction of emotional distress (IIED)
6. Trespass to land
7. Trespass to chattel
8. Defenses

Question 3

I. Intentional Torts

General Elements

Answer 3

1. voluntary act: affirmative, not reflexive or unconscious
2. intent: not motive, “volition” shown by desiring consequences or having purpose to bring consequences or knowing such consequences were substantially certain to occur, children can form intent)
3. actual causation: but for / substantial factor, liable for all consequences)

Question 4

SonderP: Transferred Intent

Answer 4

Δ intends to commit a tort but instead a) commits a different tort, b) commits the same tort against a different person, or c) both. In those cases, the intent is transferred to the actual tort or person. Applies to battery (during apprehension), assault (during act/intent to contact), false imprisonment, trespass to land, trespass to chattels (=alles außer IIED)

Question 5

I. Intentional Torts

2. Battery

Answer 5

Harmful or offensive contact with Π’s person, where Δ intended such harmful or offensive contact or imminent apprehension of such contact with Π’s person; Δ caused such contact
- Π’s person: Π or something closely connected to Π. Π need not be aware of conduct. Delayed contact OK
- Direct/indirect physical contact offensive to a reasonable person (unless Δ knew Π particularly susceptible)

Question 6

I. Intentional Torts

3. Assault

Answer 6

Act by Δ creating reasonable apprehension in Π of imminent battery (harmful or offensive contact to Π’s person), where Δ intended such apprehension and caused such apprehension
- Π must actually suffer apprehension by apparent ability. Words alone rarely create assault (no imminence)

Question 7

I. Intentional Torts

4. False imprisonment

Answer 7

Intentional confinement of Π to bounded area against Π’s will caused by Δ’s act/omission
- No reasonable means of escape known to Π. Embarrassment OK. Not by reputational harm or future threats
- Shopkeeper’s privilege: A shopkeeper (one tasked with safeguarding) may detain a shoplifter for a reasonable period of time, in a reasonable manner (can also be defense to battery) if the shopkeeper has reasonable suspicion to believe that the detained person committed or attempted to steal store property

Question 8

I. Intentional Torts

5. Intentional infliction of emotional distress (IIED)

Answer 8

Extreme and outrageous conduct intentionally or recklessly intended by Δ that causes severe emotional distress (actual damages) (only intentional tort requiring damages)
- Conduct exceeds all bounds of decency. Lesser showing enough for certain Δ (“gross insults” by innkeeper, common carrier) or certain Π (children, supersensitive if known to Δ, elderly, pregnant)
- Damages: Actual damages from severe emotional distress, not nominal damages, is required

Question 9

SonderP: Third-parties

Answer 9

• Third parties: Δ intentionally or recklessly causes severe emotional distress and…
  a) Δ knows 3P is present + direct victim is a close family relative of 3P (bodily harm not required)
  b) 3P’s emotional distress is so bad that it results in bodily harm to 3P (heart attack, stroke, etc.)

Question 10

I. Intentional Torts

6. Trespass to land

Answer 10

1. Δ’s intentional act: not necessarily to trespass)
2. causes physical invasion: Entry by anything tangible (e.g., bullet, pesticide, person), not light, noise, or vibrations
3. of Π’s real property: Π is anyone in possession of the land (landlord, tenant, adverse possessor), including surface, airspace, subterranean space

Defenses: Mistake is not a defense: Δ needs intent to enter land, not intent to trespass
Damages: Not required for intentional entry. Required for negligent, reckless, strict liability trespasses

Question 11

I. Intentional Torts

7. Trespass to chattel

Answer 11

Grds. Intentional interference with Π’s possessory right to personal property (includes pets)
a) Dispossession (direct interference with possession – taking) or intermeddling (damaging)
b) Conversion: Substantial interference with Π’s possessory right to personal property, auch: longer deprivation of possessory right, full damages, destruction

Damages: Π may recover rental value or full FMV at time of trespass/conversion (damages) or possession (replevin)

Question 12

I. Intentional Torts

8. Defenses

Answer 12

1. Consent to Δ’s conduct, not to its consequences: Π had capacity + express/implied consent (insb. sports, societal contacts) + w/in scope

2. Defense of self: Δ may use force reasonably believed to be necessary to avoid imminent harm by Π
a) Reasonable and proportionate to Π’s force if reasonable person would have believed under attack
b) Where there is a duty to retreat (e.g., statute), it only applies when deadly force is being threatened, and there is a safe way of escape. No duty to retreat from home

3. Defense of property: Δ must first demand that Π stop the conduct before using reasonable force in defense

4. Defense of others: Δ can defend a 3P from Π’s attack if Δ reasonably believed that the force used is necessary to avoid imminent harm (to the same extent that 3P would be entitled to defend himself from Π)

5. Necessity: Property torts only, e.g., trespass to real property (land) or interference on personal property
a) Public necessity: Δ may interfere with Π’s property to protect public from harm (absolute defense)
b) Private necessity: Δ may interfere with Π’s property if threatened harm is substantially greater than harm Δ caused to avert threatened harm. Δ is liable for any harm caused (unless to benefit Π)

Question 13

II. Negligence

Schema

Answer 13

1. Duty of care
2. Standard of care (=extent of duty)
3. Breach
4. Causation
5. Damages
6. Defenses (spezielle für Negligence)

Question 14

II. Negligence

1. Duty of care

Answer 14

1. Gefahr: Δ hat duty not to subject any foreseeable Π to unreasonable risk of injury
P: Who is foreseeable?
hM: Cardozo (majority) view: Δ has a duty of care to Πs in the foreseeable zone of danger (threat of physical danger).
mM: Andrews view, Δ has a duty of care to everyone (everyone is foreseeable).

2. Nonfeasance (Unterlassung): No duty owed to take steps to rescue or aid, EXCEPT where affirmative duty is created by
(1) special relationship (parent-child, common carriers, innkeepers, shopkeepers),
(2) Δ’s conduct creating the peril,
(3) Δ’s undertaking the action for Π’s benefit (attempt to assist),
(4) Δ’s creating reliance,
(5) contract

3. Duty to control 3P:
(1) “dram shop” act (served customer harms another person, Bsp. betrunkenere Autofahrer verletzt jemanden, dieser kann gegen den Bar-Betreiber klagen!)
(2) special relationship

Question 15

II. Negligence

SonderP: Negligent infliction of emotional distress

Answer 15

Pain and suffering is recoverable
a) under bystander action
1. Π is owed a duty if Π was present at scene
2. suffered emotional distress
3. close relationship with injured person)

b) direct action (all reasonably foreseeable emotional distress damages suffered due to a specific event regardless of whether those damages are related to physical injuries he or she has suffered or due to witnessing injuries to another, because defendant owes duty directly to to plaintiff)
1. Π was in zone of danger
2. physical symptoms or emotional distress

Question 16

II. Negligence

SonderP: Haftung für Schäden, die Retter erleiden

Answer 16

Rescuers are foreseeable Π if rescued party (Δ) negligently put himself or 3P in peril. As long as rescuer’s behavior was not reckless, Δ** is liable** for rescuer’s injuries caused by the rescue.

aber: Firefighter’s rule bars firefighters and police from recovering for injuries caused by risks of rescue

Question 17

II. Negligence

2. Standard of care

Answer 17

Grds. Δ owes a duty to act as a reasonably prudent person in same or similar situation (who has Δ’s relevant physical characteristics), absent negligence per se or a special relationship

aber beachte:
a) Negligence per se (statutory): A statute (including one that provides for criminal penalty) defines the standard if Π is in the class of persons the statute was designed to protect + injury is type of injury statute was designed to protect. An unexcused violation of statute constitutes negligence per se—a breach of duty
EXCEPTIONS: Statute may be excused if it would be more dangerous to follow it or compliance is beyond Δ’s control (unforeseeable, incapable)

b) Children: Held to standard of reasonable child of same age, experience, intelligence, unless adult activity

c) Landowners: Δ owes a different non-delegable duty to different types of entrants
(1) Invitee: Someone who enters land open to public with potential to confer economic benefit: Exercise reasonable care to prevent injuries: Inspect + make safe dangerous conditions
(2) Licensee: Someone who enters land not open to public not to confer economic benefit (guest): Duty to warn of or make safe known dangers
(3) Trespasser: Someone who enters land without express/implied consent: Anticipated/known trespasser: Duty to warn of or make safe known, artificial, highly dangerous conditions. Cannot use deadly force to defend property, Otherwise no duty to undiscovered trespassers
(4) Artificial condition: Duty of reasonable care to entrants and known trespassers, If seller sold and vacated the property, his liability continues only until the buyer has had reasonable opportunity to discover the condition and take precautions
(5) Attractive nuisance doctrine: Δ has duty to exercise ordinary care and avoid foreseeable risk of harm (warn and make safe) to children caused by artificial conditions on property if: 1) dangerous condition owner is/should be aware of, 2) owner knows/should know children frequent the vicinity, 3) condition likely to cause injury (b/c Π child’s inability to appreciate the risk—doctrine does not apply to a “bright” child), 4) expense of remedying danger is outweighed by risk
(6) LL-T: LL liable for: common areas (lobby), negligent repairs, known hidden defects, reasonable care to discover and repair defects if LL knows T is going to hold property open to general public

d) Professionals: Required to possess and exercise the knowledge and skill of a member of the profession in good standing. Medical specialists held to national standard. General practitioners held to local standard

e) Custom or usage may establish standard of care, but a court may find that entire industry is negligent

Question 18

II. Negligence

3. Breach

Answer 18

Grds. Duty is breached where Δ’s conduct falls below level required by the applicable standard of care owed to Π

a) Hand formula: Balance the burden of avoiding harm < (probability of harm)(magnitude of potential loss)

b) Negligence per se: Violation of applicable statute, aber Π must still establish causation and damage.

c) Res ipsa loquitur creates an inference of negligence (prima facie case for jury, deny directed verdict for Δ) where 1) type of accident is typically the result of negligence, 2) accident is attributable to Δ (Δ had sole control of the instrumentality causing injury), and 3) Π did not contribute to the injury. Δ may rebut with evidence

Question 19

II. Negligence

4. Causation

Answer 19

Grds. actual cause in fact (but-for cause, substantial factor, or alternative causes) + proximate cause

I. Actual cause in fact
a) But for: Π must show more likely than not, but for Δ’s negligence, Π would not have been injured
b) Substantial factor (multiple causes): Each Δ’s conduct alone would have been sufficient to bring about Π’s indivisible injury. Assume joint and several liability (Π can recover damages from either or all Δs; Δ may sue another for contribution)
c) Alternative causes (multiple acts): Where there are multiple acts, only one of which causes injury but is unknown, each Δ must show that his negligence is not the actual cause

II. Proximate cause: Δ is liable for harmful results caused by his acts if they were foreseeable
a) A superseding cause is an unforeseeable, intervening cause that breaks the chain of causation and becomes the proximate cause. The more intentional the intervening cause, the more likely it is
superseding. BUT if Δ should have realized the risk, he may still be liable for intentional 3P acts
b) Foreseeable intervening causes: subsequent medical malpractice, negligent rescuer, subsequent diseases caused by weakened condition, subsequent accident substantially caused by injury
c) Eggshell skull rule: Δ takes Π as he finds him; Δ is liable even if extent of damages unforeseeable

III. SonderP: multiple actors
Use joint and several liability where multiple actors are proximate causes for an indivisible injury

Question 20

II. Negligence

5. Damages

Answer 20

Π is entitled to economic damages (e.g., medical expenses), noneconomic damages (e.g., pain, emotional distress), punitive damages (if Δ conduct is reckless or malicious), property damage (reasonable repair cost or FMV)

• No recovery for pure economic harm (loss of income), except in NIED; or attorney fees
• Collateral source: Total damages are not reduced by benefits from other sources, but other Δs can reduce
• Duty to mitigate: Π has a duty to take reasonable steps to mitigate damages (seek treatment)

Question 21

II. Negligence

6. Defenses

Answer 21

speziell für Negligence:
1. Pure comparative negligence: Π’s recovery is reduced by his fault
2. Modified comparative negligence: Bars recovery to Π if Π was more (or in minority jx, at least as) negligent than Δ
3. Contributory negligence: Any fault by Π bars recovery. If Δ had last clear chance to avoid harm, Π can recover fully
4. Assumption of risk: Recovery may be reduced or barred if Π knew the risk specific to Δ + voluntarily assumed risk
a) Express assumption of risk (clear written/oral release from negligence) is a complete bar to recovery
b) Professional rescuer/firefighter’s rule: If professional (including volunteer) rescuer Π is injured by risks inherent in occupation from Δ’s negligence, recovery for negligence is barred (assumed risk as part of job)
c) Avoidable consequences: Π fails take reasonable steps to mitigate damages

Question 22

III. Strict Liability

Fallgruppen

Answer 22

1. Wild animals: If Π is injured by animal’s characteristic propensity, Δ is strictly liable to invitees and licensees

2. Domestic animals: Keeper is not liable unless he knew or had reason to know of its dangerous propensity

3. Abnormally dangerous activity (ultrahazardous activity) is an activity that is not common usage in the area and creates foreseeable risk of serious harm even when reasonable care is exercised by all actors (e.g., store explosives)

Defenses wie bei Negligence

Question 23

IV. Products Liability

Übersicht

Answer 23

Achtung: not for services (e.g. repair, malpractice)
1. Strict liability
2. Negligence liability
3. Implied Warranty
4. Express warranty

Question 24

IV. Products Liability

1. Strict liability

Answer 24

1. Duty: Any commercial supplier in distribution chain of the product has an absolute duty to supply safe products to any foreseeable Π (including bystanders). No privity is required between Π and Δ

2. To find liability, Π must show a type of defect in product when it left Δ’s control (breach of absolute duty)
a) Product must not be expected to or actually undergo significant changes before it reaches the user
b) Manufacturing defect: Product came out more dangerous than intended. Prove this defect with: Ordinary consumer expectation test: Product failed to perform as safely as an ordinary consumer would expect. Δ must anticipate reasonable misuse
c) Design defect: Very design resulted in product not safe for its intended use. Prove this defect with:
aa) Feasible alternative test: Product could have been made safer without serious impact on the product’s price or utility
bb) Risk-utility test: Danger of design > utility to society, feasibility of alternate designs
d) Inadequate warnings defect: Product must have clear and complete warnings of dangers that may not be apparent to users. One language OK. Unneeded if obviously dangerous (e.g., knife)

3. Causation: Actual cause—defect existed when product left Δ’s control (Π need not prove fault). Proximate cause—type of injury was foreseeable at the time product was placed in the stream of commerce
- Learned intermediary rule: Manufacturer is relieved of liability if an intermediate handler discovers the defect and knowingly passes it to Π or failed to convey manufacturer warning to Π

4. Damages: Physical injury or property damages are recoverable, Purely economic losses NOT recoverable, Duty to mitigate: Π has a duty to take reasonable steps to mitigate damages

5. DEFENSES:
(1) misuse (in an unintended & unforeseeable way)
(2) assumption of risk
(3) comparative negligence,
(4) contributory negligence if Π discovered defect
(5) alteration (3P unforeseeably changes the product)

Question 25

IV. Product Liability

2. Negligence liability

Answer 25

Besonderheiten im Vergleich zu normaler Negligence:
1. Duty of care: Any foreseeable Π. Standard of care of reasonably prudent commercial seller

2. Breach: Reasonableness of Δ’s conduct whose failure resulted in supplying a defective product, Res ipsa loquitur may be invoked by Π
3. Causation: Actual cause and proximate cause. Learned intermediary rule may also apply, Includes negligently failing to inspect, with evidence that would lead a reasonable person to do so
4. Damages: Physical injury or property damages. Purely economic losses NOT recoverable
5. DEFENSES: Same as in a general negligence action

Question 26

IV. Product liability

3. Implied warranty

Answer 26

Wer? anders als nur Käufer bei Mängelfällen auch family, household, guests, vertial privity not required

1. Merchantability (breachable by seller of goods) refers to whether the goods are of average acceptable quality and fit for the ordinary purpose the goods are used for

2. Fitness for a particular purpose refers to whether a seller of goods knows or has reason to know the particular purpose for the goods and that the buyer is relying on the seller’s judgment in selecting the goods

3. Breach: If product fails to meet either of above standards, warranty is breached. No need to show fault

4. Causation: Actual + proximate cause as in general negligence

5. Damages: Personal, property damages. Purely economic losses are recoverable

6. DEFENSES:
(1) assumption of risk (using while knowing breach)
(2) contributory negligence if Π discovered
defect
(3) failure to give notice of breach (under UCC)

Question 27

IV. Product liability

4. Express warranty

Answer 27

Δ makes representation affirming a fact or promising to the buyer as to the product that becomes the basis of the bargain. No need to show breach, just that product did not live up to warranty.

Causation, damages, DEFENSES are treated as they are under implied warranties

Question 28

V. Defamation

Schema

Answer 28

To establish a prima facie case for defamation, the following 4 or 6 elements must be proved:

1. Defamatory language tending to adversely affect one’s reputation. Opinions must be based on specific facts to be actionable

2. Of or concerning Π: Reasonable person would understand that the statement referred to Π (incl. w/in small group)

3. Publication: Someone other than Π received and reasonably understood the defamatory matter due to Δ’s negligent or intentional publication (intent to publish, not to defame)

4. Damage to Π’s reputation: must be proved depending on type of defamation (libel or slander)
a) Libel: Any comm’n that has some permanence (e.g., writing, radio, TV, photo). General damages presumed
b) Slander: Spoken, oral defamation. Π must prove special (pecuniary) damages, unless slander per se (impute improper conduct in Π’s trade, accusation of crime involving moral turpitude, current loathsome disease, lack of chastity of woman)

Constitutional issues (further analyze on top of above elements if defamation involves matters of public concern)
5. Falsity: Π must prove that the statement was false. If not, Π may still raise IIED or privacy torts

6. Fault of Δ: If Π is…
a) Public official or figure? A public figure has achieved fame or notoriety or has voluntarily assumed a central role in a public controversy. Π must show malice (knowledge of falsity of statement or reckless disregard as to truth or falsity)
b) Private person, public concern? Π need only prove negligence regarding falsity and actual injury
c) Private concern? Constitutional restrictions do not apply. Prove publication only

7. DEFENSES
   (1) Qualified privilege: Comm’n that appears reasonably necessary to protect Δ’s own legitimate interests or is of interest to recipient, e.g., past employer’s reference, reports of public hearings, newsworthy events
   EXCEPTIONS: Δ loses privilege if acted with malice (know falsity or recklessly disregard truth) or statement is outside scope of privilege
   (2) Truth: If Δ can prove substantial truth, it would be a defense (Π’s burden to prove falsity)
   (3) Absolute privilege until repeated in a context where there is no privilege: Statements made by legislators (or aides) on floor, between federal executive officials, judicial proceedings, comm’n between spouses

Question 29

VI. Misrepresentation

Übersicht

Answer 29

Fraudulent misrepresentation: Material misrepresentation made with intent or knowledge to mislead, and Π
reasonably relied on the misrepresentation
ii. Negligent misrepresentation: Material misrepresentation made with negligent or innocent scienter, and Π
reasonably relied on the misrepresentation
iii. Fraudulent nondisclosure: Silence when there was a duty to disclose a material fact, and Π reasonably

Question 30

VII. Nuisance

Schema

Answer 30

(not a tort in itself but a type of harm by negligent or intentional action)

A. Private nuisance is a substantial and unreasonable interference with Π’s use and enjoyment of possessed land by intentional, negligent, or abnormally dangerous conduct
1. Substantial: Offensive, inconvenient, or annoying to an average person in the community (not a nuisance to block access to sunlight!)
2. Unreasonable: Severity of injury > utility of Δ’s conduct

B. Public nuisance is an unreasonable interference with a health, safety, moral right common to the general public, Suit typically brought by gov’t actor. Private party can bring action if he suffered unique damage

Question 31

VIII. Privacy Torts

Übersicht

Answer 31

A. Commercial appropriation: Unauthorized (no permission or negligent in verifying) use of Π’s picture or name for Δ’s commercial purpose. Π need not be identified by name so long as clear that the ad is meant to depict that person

B. Intrusion into seclusion: Δ intentionally interferes with Π’s zone of privacy in a manner offensive to a reasonable person (for example, eavesdropping, wiretapping, stalking)

C. Public disclosure of private true facts: Disclosure of true facts that 1) would be highly offensive to a reasonable person and 2) is not newsworthy

D. Portrayal in a false light: Publication of false information that would be highly offensive to a reasonable person

Question 32

IX. Miscellaneous

Übersicht

Answer 32

1. Vicarious liability of employer or supervisor
2. Wrongful institution of proceedings
3. Interference with contractual relations
4. Loss of consortium and services
5. Survival action
6. Wrongful death

Question 33

IX. Miscelleanous

1. Vicarious liability of employer or supervisor

Answer 33

Fallgruppen:
a) Respondeat superior: 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
- Frolic and detour: An employee making a minor detour from the employer’s business for own purposes is still acting within the scope of employment
- Special relationships such as university-student may be within the scope
AUSN. Intentional torts by employee are outside the scope, UNLESS authorized or furthering the business (e.g., bouncer, bill collector)

b) Independent contractor (IC): Person who hires IC is not vicariously liable for negligence of IC
UNLESS (1) IC is engaged in inherently dangerous activity (excavating) or (2) duty is non-delegable as a matter of public policy or safety

Abgr. Employee vs. IC: IC if payer has right to control result of the work but not what or how it will be done

Abgr. Negligent hiring/supervision: Employers may be liable for own negligence by hiring or supervising an employee or IC. This is not “vicarious liability”

c) Joint venture (undertaking to carry out objectives that associates have equal voice to direct the enterprise): Act of any associate w/in the scope of the enterprise is vicariously liable against the rest

d) Child: A parent is under a duty to exercise reasonable care to control his minor child as to prevent intentional harm or risk of harm to others, if the parent 1) knows or has reason to know that he can control
his child and 2) knows or should know of the necessity and opportunity for exercising such control
1. Parents are not vicariously liable for their children’s tort, UNLESS the child committed a tort while acting as the agent for the parents
2. Negligent supervision/entrustment: Parents may be liable for own torts where they had a reason to know of any propensities of the child; they owe a duty to those who might be injured by the child

Question 34

IX. Miscellaneous

2. Wronful institution of proceedings
3. Interference with contractual relations
4. Loss of consortium and services
5. Survival action
6. Wrongful death

Answer 34

2. Wronful institution of proceedings:
a) Malicious prosecution: Institution of criminal/civil proceedings against Π (former Δ) without probable cause, without proper purpose (malice), where Π prevailed on the merits, and Π suffered damages
b) Abuse of process: Wrongful use of process for an ulterior purpose + act or threat against Π to accomplish purpose

3. Interference with contractual relations: Δ knew of valid K between Π and 3P + acted with purpose of having K breached or made harder to perform + damages

4. Loss of consortium and services: Π spouse may recover against Δ for injuring Π’s spouse and depriving the benefits of the spousal relationship, including the loss of companionship, comfort, society, and sexual relations

5. Survival action: Cause of action that survives the death of a party, only applicable to injury to property and person, not to personal interests (e.g., defamation, privacy, malicious prosecution) which expire upon death

6. Wrongful death: Actions based on wrongful death provide monetary relief for injury resulting to the spouse and next of kin (but not to creditors). Recovery is allowed to the extent that the deceased could have recovered in an action had he lived; e.g., decedent’s contributory negligence reduces wrongful death recovery in comparative negligence jx