Torts

Question 1

Battery
(Intentional Tort)

HIGH

Answer 1

A defendant is liable for Battery when there is:
* an intentional (aka desire to bring about harm\knowing that harm is substantially certain)
* harmful (physical pain or impairment)or offensive (offends reasonazble sense of personal dignity) contact
* with the plantiff’s person (including anything connected to the plaintiff)

Question 2

Assault
(Intentional Tort)

MED

Answer 2

A defendant is liable for assault when:
* An intentional act (purposely causing apprehension or with knowledge that apprehension will result)
* Causes plaintiff to be placed in reasonable apprehension (plaintiff must be aware of defendant’s act AND believe that the defendnat is able to commit the act)
* of imminent harmful or offensive contact with plantiff’s person

Question 3

False Imprisonment
(Intentional Tort)

MED

Answer 3

Liable when:
* Intentional act
* to restrain plaintiff to fixed boundaries (with no reasonable means of escape) AND
* plaintiff is conscious of the confinement or is harmed by it.

Restraint may be accomplished through threats, and does not need tobe physical or stationary.

Question 4

Intentional Infliction of Emotional Distress
(Intentional Tort)

MED

Answer 4

Elements:
* Defendant acted intentionally or recklessly (deliberate disregard of a high risk that emotional distress will follow)
* D’s conduct was extreme and outrageious
* D’s act caused exteme emotional distress AND
* plaintiff actually suffered severe emotional distresst

Question 5

Intentional Infliction of Emotion Distress
(Conduct to Third-Party)

MED

Answer 5

When conduct is directed at a third person, defendant liable if they:
* intentionally or recklessly cuase severe omitional distress to
* a member of such person’s immediate family (who is present at the time; whether or not physical harm results) OR
* to any other person present if results in physical harm

Question 6

Trespass to Land

MED

Answer 6

A defendant is liable for trespass if:
* they intentionally
* enter the land of another
* causes an object or third person to enter land of another
* reamin on the land
* fails to remove an object from land that they are under a duty to remove

Plaintiff can recover decrase in value of property or cost to repair the property.

Note: Intent to trespass is not required, only intent to enter the land.

Question 7

Trespass to Chattels

MED

Answer 7

Occurs when:
* intentionally interferes with another’s personal property (including prevent another from using property)
* amount of damage is small

Note: Mistaken ownership is not a defense.

Question 8

Conversion

Answer 8

A person is liable for conversion if:
* they intentionally interfere with another’s personal property AND
* the amount of interference is substantial a nd amounts to an act of ownership/dominion.

Person wil lbe liable for the full market value of the chattel involved at the time of conversion.

Note: Mistaken ownership of the property is NOT a defense to either tort.

Question 9

Transferred Intent

MED

Answer 9

The intent to harm one party can be transferred when:
* Defendant had intent to commit a tort against one particular individual AND
* if in the act of (a) commits a different tort against that person or (b) another person is injured (by same or different tort)

Only applies to intentional torts: battery, assault, false imprisonment, trespass to land and respass to chattels

Question 10

Consent
(As Defense to Intentional Tort)

HIGH

Answer 10

Consent is a defense to intentional torts:
* may be express orimplied through words or conduct
* Doesn’t need to be communicated to the actor
* Apparent consent is OK (customary practice or failure to object)
* consent can be withdrawn at any time.
* consenting party must have capacity to give consent
* some courst hold that a person cannot consent to a criminal act

Concent can be implied by law (ex medical emergencies), but defendant’s actions cannot exceed scope of consent.

Question 11

Necessity
(Privileges - Defense to Intentional Torts)

HIGH

Answer 11

A defendant is not liable for hamr if defendant’s acts were:
* Necessary (or reasonably appeared to be necessary)
* to prevent serious harm to a person or property

Public necessity is when defendant acts for public good and is a complete defense.

Private necessity is an cimplete privilege (D liable for damage caused) and occurs when D is protecting their own propety interests.

Note: Only applicable to intentional torts.

Question 12

Self Defense
(Priveleges - Defenses to Intentional Torts)

HIGH

Answer 12

A defendant is not liable for harm to plaintiff if they:
* Reasonably believed the plaintiff was going to harm them or another AND
* Defendant used reasonable force that was necessary to protect himself or another.

Question 13

Defense of Property
(Privileges - Defenses to Intentional Torts)

HIGH

Answer 13

A person may use reasonable force to defend property, but cannot use deadly force for property.

Question 14

Recapture of Chattels
(Priveleges - Defenses to Intentional Torts)

HIGH

Answer 14

An owner of chattels wrongfully taken may take prompt action and use reasonable, non deadly force to recover their chattels.

Note: No force is deamed reasoable until a demand for return of the chattels has been made, kunless the demand would be dangerous or futile.

Question 15

Detain for Investigation (Shopkeepers)
(Priveleges - Defenses to Intentional Torts)

HIGH

Answer 15

Shopkeepers can
* temporarily detain
* a person reasonably suspected of theft
* in or near their store
* for the purpose of an investigation

Reasonable non-deadly force may be used to detain the individual, when a request to remain has been made and refused

Question 16

To Discipline (Children)
(Priveleges - Defenses to Intentional Torts)

HIGH

Answer 16

Parents may use reasonable force in disciplining their children.

Question 17

Prima Facie Case of Negligence

HIGH

Answer 17

A prima facie case of Negligence requires:
* a duty owed to the plaintiff by the defendant
* breach of duty
* Cause (actual and proximate) AND
* Damages

Question 18

Affirmative Duty to Act

HIGH

Answer 18

There is no duty to act affirmatively, but an affirmative duty to act will arise in certain situations:
* a pre-existing relationship between the parties (parent-child)
* Defendant put the plaintiff in danger
* Defendant has undertaken to rescue the plaintiff OR
* duty is imposed by law

Question 19

Affirmative Duty to Act: Rendering Aid

HIGH

Answer 19

A person who undertakes a rescue is liable for injuries caused by failure to exercise reasonable care in doing so if:
* failure to exercise care increases risk of harm OR
* harm if suffered because of reliance on person providing help or aid

Aid renderer is liable for bodily harm:
* aid is discontinued
* other person is left in worse position

Question 20

Reasonable Person Standard
(Standard of Care)

HIGH

Answer 20

• Every person owes a duty to act as a reasonably prudent person would under the same circumstances.
• A reasonabe person takes appropriate measures to avoid forsseeable risks.
• This duty of care is owed to all foreseeable plaintiffs.

Question 21

Reasonable Person Standard - Disabilities
(Standard of Care)

HIGH

Answer 21

A person with a physical disability msut act as a reasonable person WITH the disability would act.

A person with below average intelligence or a mental disability must act as a reasonable person WITHOUT the disability would act.

Question 22

Children
(Standard of Care)

HIGH

Answer 22

Children are held to the stard of care of a hypothetical child of similar age, experience and intelligenvce acting under similar circumstances.

However, if child is engaged in an adult activity, child has duty to act as a reasonable adult would under the circumstances. (ex: driving a car)

Phyiscal disability: Physicaly disabled children must conform conduct to that of a reasonably careful child wit hthe same physical disability.

Young Children: Children under the age of 5 are exempt form negligence liability. Some states hold that young children, under 7 are presumed incapable of negligence.

Instructions: When a child receives instructions from a parent about taking necessary precautions, the child can be found negligent for failing to follow those instructions.

Question 23

Professionals
(Standard of Care)

HIGH

Answer 23

A professional (doctor, lawyer, etc) ows a duty to act with the knowledge of an average member of that profession practicing in a similar community/specialty.

Doctor: Has duty to obtain informed consent from patient before treatmet, requires doctor to disclose risks of treatment that a reasonable paitent would want to know.

Physchologist: Has a duty to warn potentia lvictimes when their patient makes credible threat to others. Therapist liable for victim’s injuries if:
* therapist believed patient posed real risk
* risk was of serious physical violence
* victime was readily identifable
* therapist failed to take steps to warn victim

Question 24

Undiscovered Trespasser
[Land Owner/Possessor’s Duty to Entrants]
(Standard of Care)

HIGH

Answer 24

In most jursidictions no duty is owed to the trespesser by landowner

Question 25

Anticipated Trespasser
(Standard of Care)

HIGH

Answer 25

Landowner must:
* use reasonable care in operations on the property AND
* warn of (or make safe) highly dangerous artificial conditions that landowner knows of

Question 26

Attractive Nuisance Doctrine

HIGH

Answer 26

A land owner/possessor owes a duty to child trespassers to make hte premises reasonably safe or warn of hidden dangers on their land.

A landowner is liable for the harm to a trespassing child if:
* he knows or should know of a dangerous artificial condition on his land
* that is likely to cause death or serious bodily injury
* landowner knows that children frequent the area
* Children are unlikely to discover the condition or appreiate the risks
* risk of harm outweights the expense of making the condition safe AND
* landowner fails to excercise reasonable care in eliminating the danger or protecting children from it.

Note: Less likely to apply if child engages in adult activity.

Question 27

Duty Owed to Licensee

HIGH

Answer 27

Licensee: A social guest invited on owner’s property; reasonable belief, based on owner’s conduct or words, that they were permitted to enter the owner’s land.

The landowner must:
* exercise reasonable care in operations on the property AND
* warn of (or make safe) dangerous conditions known to landowner but not known to guest

Question 28

Duty owed to Invitees

HIGH

Answer 28

Invitee: Invited onto property for the owner’s benefit, such as a business

The landowner owes duty to:
* exercise reasonable care in operations
* warn or make safe dangerous conditions known to landowner but are not apparent to guest
* Duty to make reasonable inspections of the property to find and make safe non-obvious dangerous conditions (within reasonable time period to discover)

Landowner is liable for failing to warn of dangerous conditions that would have been discovered upon reasonable inspection.

Question 29

Landlord’s Duty to Tenants

MED

Answer 29

A landord generally has no duty to maintain the leased premises, but must warn of latent defects.

Modern courts have held that landlords have a duty to take reasonable precautions to protect tenants against forseeable attacks (dog attacks from neighbors).

Question 30

Negligence Per Se

HIGH

Answer 30

A statute may be used to substitute the duty of care. The duty and breach elements are satisfied when the defendant breaches the statute. Plaintiff only needs to prove causation and damages.

• Plaintiff must show that statutes purpose is to prevent the type of harm that plaintiff has suffered. AND
• the palintiff is in the class of persons that the staute seeks to protect.

Exceptions:
* When compliance with statute is more dangerous than violation of it
* compliance with statute is impossible

Question 31

Res Ipsa Loquitur

HIGH

Answer 31

When breach element of negligence is difficult to prove.

Traditional Test:
*Injury is of a sort that typically does not occur in absense of negligence
* object causing injury was in defendant’s exclusive control AND
* plaintiff is not the cause and did not contribute to injury

Note: When an action is against multiple defendants, res ipsa loquitur generally cannot be used o show liability of any particular defendant.

Question 32

Actual Causation (Negligence)

HIGH

Answer 32

“but for” causation - but for defendant’s negligence, plaintiff would not have been injured.

Substantial Factor Test: Somethign that is a substantial factor in bringing about the injury is an actual cause (even if the injury had multiple causes)

Question 33

Proximate Causation (Negligence)

HIGH

Answer 33

The legal cause, meaning that the injury must have been a foreseeable result of the breach.

Question 34

Intervening Causes
(Proximate Cause)

HIGH

Answer 34

Any act that occurs after defendant’s breach that contributes to the harm is an intervening cause.

If intervening cause resulted in an unexpected injury, it is usually deemed unforseeable and wil absolve defendant of liability.

Notes:
* Medical malpractice - always foreseeable
* Criminal acts - not foreseaable unless - defendant should have anticipated crimina act, or defendant’s conduct made criminal activity more likely to occur
* Injured rescuer foreseeable under “danger invites rescue” doctrine
* further ordinary negligence actions that may add to plaintiff’s injuries are foreeseeable (don’t break chain of causation).

Increased harm from Rescue Efforts: Defendant liable for increased harm caused by others providing aid.

Question 35

Eggshell Plaintiff Rule

HIGH

Answer 35

A defendant is liable for all harm a plaintiff suffers as a result of their conduct, even if the palintiff suffered from a preexisting mental or physical condition.

Question 36

Emotional Distress from Physical Injury

HIGH

Answer 36

A plaintiff is entitled to recover emotion distres sdamages stemming from physical injury.

But if there is no physical injurty, NIED will have to be established to recover for emotional damages not stemming from the injury.

Question 36

Comparative Negligence

HIGH

Answer 36

Pure: Plaintiff’s negligence or assumption of risk will not bar recovery. Instead will reduce plaintiff’s recoverable damages by the percentage of their own fault.

Partial: If plaintiff contributed less than 50% to their own injury, then damages are reduced by the percentage of fault that is attributable to them. If more than 50%, barred from recovery.

Note: Pure comparative negligence is the default.

Question 36

Negligent Infliction of Emotional Distress

HIGH

Answer 36

Near Miss:
*Negligence by defendant
* Creates a foreseable risk of injury
* Plaintiff is in the zone of danger AND
* plaintiff must manifest physical symptoms

Bystander Claim
* Neligence by defendant
* plaintiff must be contemporaneous witness to a negligent bodily injury inflicted on a close family member AND
* plaintiff must manifest physical symptoms
* Some jurisdictions require P to be in zone of danger

Pre-Existing Relationship:
* Pre-existing relationship AND
* negligent act can foreseeably cause distress
* (Recovery is rare)

Note: Recovery permitted without physical injury for negfligent mishandling of dead bodies that causes emotional distress to family members and negligent communications company that incorrectly announces that a person is dead or seriousl injured to an immeditae family member.

Question 36

Contributory Negligence

HIGH

Answer 36

Plaintiff cannot recover dmages if they contributed to their own injury.

Exceptions:
* Last chance opportunity: Defendant had the last chance opportunity to avoid the accident OR
* defendant was reckless

Note: Only applied in a few states

Question 37

Assumption of Risk

MED

Answer 37

Assumption of risk is a defence to negligence. Applies if plaintiff:
* Voluntarily assumed (express or implied)
* A known Risk

Question 37

Respondeat Superior
(Vicarious Liability of Employer)

HIGH

Answer 37

An employer is vicariously liable for an employee’s negligent acts if the the employee was acting within the scope of employement.

Within scope of employment when:
* performing work assigned by the employer OR
* engaging in a course of conduc subject to the employer’s control

Not within scope of employment when:
* occurs within an independent course of conduct AND
* it is not intended by the employee to serve any purpose of the employer

Note: an employee’s intentional torts are generally not within the scope of employment unless the act was (i) specifically authorized by employer or (ii) was the result of naturally occurring friction from the type of employment.

Question 38

Other Employment Liability
(No Respondeat Superior)

MED

Answer 38

Situtations
* principal intended conduct or consequences
* principal was negligent or reckless in selecting, training, retaining, supervising or controlling the agent
* conduct involved a principal’s non-delegable duty an injured person
* when agent had apparent authority, agent’s actions with apparnet authority constitute the tort, and (iii) the third-party relied on that authority

Question 39

Vicarious Liability for Acts of Independent Contractors

HIGH

Answer 39

Generally, principal is NOT vicariously liable for the torts of an independent contractor.

Exceptions:
* Independent contractor engaged in an inherently hazardous activity
* duty owed by principal is non-delegable (duty of care owed to an invitee)
* through estoppel when (i) principal holds independent contractor out as his agent, (ii) third party reasonably relied on the care and skill of agent; and (iii) third party suffered harm as a result of agent’s lack fo care or skill

Question 40

Knowledge of Agent Imputed to Principal

LOW

Answer 40

A principal may be deemed to know or recieve information that is known or received by an agent.

An agent’s knowledge of a fact is imputed to the principal if knowledge of the fact is material to the agent’s duty to the principal

A notification given to an agent is effective to the principal if the agent has actual or apparent authority to receive the notification.

Question 41

Fiduciary Duties Owed by Agent to Principal

HIGH

Answer 41

Duties:
* Duty of care - to use reasonable care when performing duties
* Duty of loyalty - to act solely and loyally for principal’s benefit AND
* Duty of obedience - to obey all reasonable directions given by principal and act in accordace with express or implied terms of the relationship.

Note: Agent has no liability to pricipal when agent fulfils fiduciary obligations and acts within scope of authority.

Question 42

Product Liability - Strict Liability

MBE

Answer 42

The prima facie case for a products liability claim based in strict liability includes:
* a commercial upplier of a product (defendant owed a strict duty as a commercial supplier)
* producing or selling a defective product
* actual and proximate cause AND
* damage

Plaintiff must prove that the defect existed when the product left the defendant’s control. Product must also reach plaintiff without substantial alteration.

Question 43

Invasion of Privacy

MBE

Answer 43

A plaintiff can recover for four types of wrongs:
* appropriationg by the defendant of hte plaintiff’s picture or name for commercial advantage
* intrusion by the defendnt upon the plaintiff’s affiars or seclusion
* publication by the defendant of facts placing the plaintiff in a false light and
* public disclosure by the defendnat of private facts about the plaintiff

Question 44

Negligent Misrepresentation

MBE

Answer 44

Requires plaintiff to show that:
* defendnat made a misrepresentation in abusiness or professional capacity
* defendant breached a dty owed to this particular plaintiff
* there was causation between those actions and the result
* the plaintiff justifiably relied on the misrepresentation AND
* damages resulted