Torts

Question 1

What are the key categories of plaintiff’s harm in tort law?

Answer 1

• Physical
• Property
• Emotional
• Economic
• Damage to reputation

These categories help identify the nature of the harm suffered by the plaintiff.

Question 2

What are the three elements required to establish an intentional tort?

Answer 2

• Tortious conduct
• Requisite mental state
• Causation (factual and proximate)

All three elements must be present to find liability in an intentional tort case.

Question 3

Define battery in the context of intentional torts.

Answer 3

D intends to cause contact with P’s person, his affirmative conduct causes such contact, and contact causes bodily harm or is offensive to P.

Battery requires intentional conduct that results in harmful or offensive contact.

Question 4

What is the definition of assault in tort law?

Answer 4

D intends to cause P to anticipate an imminent, harmful or offensive contact with P’s person and D’s affirmative conduct causes P to anticipate such contact.

Assault does not require actual contact, only the anticipation of it.

Question 5

What constitutes false imprisonment?

Answer 5

D intends to confine P within a limited area, D’s conduct causes P’s confinement or D fails to release P from confinement despite owing duty to do so, and P is conscious of confinement.

False imprisonment focuses on the confinement of the plaintiff.

Question 6

What is the standard for intentional infliction of emotional distress (IIED)?

Answer 6

Acting with extreme and outrageous conduct that caused P severe emotional distress.

The defendant may act intentionally or recklessly in IIED cases.

Question 7

What are the two types of nuisance in tort law?

Answer 7

• Private nuisance: Substantial, unreasonable interference with use or enjoyment of land
• Public nuisance: Unreasonable interference with a right common to the general public

Public nuisance also requires that the plaintiff suffers harm different in kind from the public.

Question 8

What is ‘transferred intent’ in tort law?

Answer 8

Exists when D intends to commit a battery, assault, or false imprisonment against one person but instead commits the intended tort against an unintended person.

Transferred intent allows for liability even if the intended victim is not harmed.

Question 9

What are the general defenses to intentional torts?

Answer 9

• Consent
• Self-defense
• Defense of others
• Defense of property

Each defense has specific requirements that must be met for it to be applicable.

Question 10

What is the general approach to negligence in tort law?

Answer 10

• Set out the prima facie case (Duty, Breach, Causation, Damages)
• Look for defenses
• Identify special liability/limitations

The prima facie case is essential to establishing negligence.

Question 11

What is the standard of care in negligence cases?

Answer 11

• Reasonably prudent person
• Custom of the community or industry (Professionals)
• Special status (e.g., Landowners, Common Carriers)
• From a statute: Negligence Per Se

The standard of care varies depending on the context of the case.

Question 12

What is ‘res ipsa loquitor’?

Answer 12

A doctrine applied when the facts are unclear whether D was negligent, requiring proof that an accident would not normally occur absent negligent conduct, the instrumentality was in D’s exclusive control, and not due to any action on the part of P.

This doctrine allows for an inference of negligence in certain situations.

Question 13

What is contributory negligence?

Answer 13

P’s own negligence is a bar to recovery.

This is a common law rule that may limit a plaintiff’s ability to recover damages.

Question 14

Define negligent infliction of emotional distress (NIED).

Answer 14

P is in the zone of danger and the threat of physical impact caused emotional distress or P is outside the zone of danger but on scene and witnessed an injury to a close relative.

Physical symptoms are typically required for NIED claims.

Question 15

What is the difference between wrongful death and survival actions?

Answer 15

• Wrongful death: P recovers for loss of decedent but not P’s pain and suffering
• Survival action: P recovers decedent’s claim for harm between time of injury and death

Each type of action serves a different purpose in tort law.

Question 16

What is vicarious liability?

Answer 16

Defendant did not directly commit the tortious act but is liable due to a qualifying relationship, such as employer-employee or parent-child.

Vicarious liability holds one party responsible for the torts of another based on their relationship.

Question 17

What are the elements of a strict liability claim?

Answer 17

• Absolute duty to make safe
• Causation
• Damages

Strict liability applies in specific contexts, such as abnormally dangerous activities.

Question 18

What is the definition of products liability?

Answer 18

Liability for harm caused by a defective product, which can arise from strict liability, negligence, or breach of warranty.

Products liability claims often involve commercial suppliers and manufacturers.

Question 19

What are the three types of product defects?

Answer 19

• Manufacturing defect
• Design defect
• Failure to warn

Each type of defect can lead to liability under products liability law.

Question 20

What is a breach in the context of negligence?

Answer 20

Failure by this D to use reasonable care in inspecting/selling

Res ipsa loquitor may apply if the situation suggests negligence without direct evidence.

Question 21

What are the two types of causation in negligence?

Answer 21

Actual and proximate cause

Actual cause refers to the direct link between the defendant’s action and the harm, while proximate cause deals with the foreseeability of the harm.

Question 22

What damages can a foreseeable plaintiff recover for?

Answer 22

Personal injury or property damage

Economic loss may also be recoverable in some cases.

Question 23

What should be pursued for pure economic loss?

Answer 23

A warranty claim

This is often appropriate when there is no personal injury or property damage involved.

Question 24

What are standard defenses to negligence?

Answer 24

Standard defenses to negligence apply

These may include contributory negligence, comparative negligence, and assumption of risk.

Question 25

What is the key question regarding warranty?

Answer 25

Did product fail to meet warranty standard? ## Footnote Consideration of who the plaintiff is can also affect the outcome.

Question 26

Who may be restricted from recovery in warranty cases?

Answer 26

Buyer, member of buyer’s family/household, or a guest ## Footnote Some states have specific restrictions on who can recover under warranty claims.

Question 27

What is the implied warranty of merchantability?

Answer 27

Goods fit for the ordinary purposes for which intended ## Footnote This warranty applies when a merchant sells goods.

Question 28

What does the fitness for a particular purpose imply?

Answer 28

Seller knows of particular purpose and buyer relied on seller ## Footnote This applies when the buyer has a specific use in mind and relies on the seller's expertise.

Question 29

What types of damages can be claimed under warranty?

Answer 29

Personal injury, property damage, and/or economic loss ## Footnote Depending on the nature of the warranty breach, different types of damages may be claimed.

Question 30

What constitutes a prima facie case of defamation?

Answer 30

Defamatory statement, of or concerning the plaintiff, published to a third party, causing damages ## Footnote This includes both libel and slander.

Question 31

What are the types of slander?

Answer 31

Slander requires special damages; slander per se presumes special damages ## Footnote Slander per se includes statements that are inherently harmful.

Question 32

What is a constitutional protection for defamation involving public figures?

Answer 32

Public figure/official P must prove malice ## Footnote This means showing that the defendant knew the statement was false or acted with reckless disregard for the truth.

Question 33

What must a private plaintiff prove for matters of public concern?

Answer 33

At least negligence ## Footnote This lowers the burden of proof compared to public figures.

Question 34

What is misappropriation in the context of invasion of privacy?

Answer 34

Unauthorized use of P’s picture or name for D’s advantage ## Footnote This is a form of invasion of privacy that focuses on commercial exploitation.

Question 35

What is intrusion upon seclusion?

Answer 35

Intrusion into P’s private affairs, objectionable to a reasonable person ## Footnote No publication is required for this type of invasion of privacy.

Question 36

What is false light in invasion of privacy?

Answer 36

Publication of facts about P that place him in false light objectionable to a reasonable person ## Footnote This involves misrepresentations that may not be defamatory but are misleading.

Question 37

What is the defense of truth in defamation cases?

Answer 37

Truth is a constitutionally protected defense ## Footnote This applies to both public and private figures under certain conditions.

Question 38

What is intentional misrepresentation?

Answer 38

False misrepresentation of material fact made with knowledge and intent to induce reliance ## Footnote This results in the plaintiff justifiably relying on the misrepresentation and suffering harm.

Question 39

What constitutes negligent misrepresentation?

Answer 39

Providing false information in a commercial setting due to D’s failure to use reasonable care ## Footnote This also leads to the plaintiff justifiably relying and suffering harm.

Question 40

What is intentional interference with business relations?

Answer 40

Interference with a valid contract or business expectancy causing breach and resulting in damages ## Footnote The defendant must have knowledge of the contract or expectancy.

Question 41

What are injurious falsehoods?

Answer 41

Trade libel is publication of a derogatory statement relating to P’s business, causing interference or damage ## Footnote This type of claim requires proof of special damages.

Question 42

What does wrongful use of legal process entail?

Answer 42

Intentional and malicious pursuit of legal action for an improper purpose without probable cause ## Footnote This results in the action being dismissed in P’s favor.