Torts

Question 1

Specific Intent

Answer 1

When a tortfeasor intended to achieve a particular result by committing the crime/tort.

Question 2

General Intent

Answer 2

When a person exhibits an actual intent to perform some act, but without a desire for the consequences that result from that act.

Question 3

Assault

Answer 3

Acting intentionally to put a plaintiff in reasonable apprehension of imminent harmful or offensive contact. Doesn’t require actual contact, and can be subject to punitive damages if done with malice.

Question 4

Reasonable Person Standard

Answer 4

A defendant must use the level of care and caution that a normal person would have used in the same situation.

Question 5

Battery

Answer 5

Intentional, harmful or offensive contact with a plaintiff. Offensive is determined by reasonable person standard. Contact is anything in the possession of or connected to the person. Defendant is liable for all damages, including unforeseen damages.

Question 6

Intentional Tort Causation

Answer 6

Demonstrated where the defendant is a substantial factor in bringing about the tort. Not as involved as “but for” or foreseeability.

Question 7

Tresspass to Land

Answer 7

Intentionally entering or causing an object or third party to enter land belonging to someone else. If there is no damage to the land, can get nominal damages.

Question 8

Tresspass to Chattel

Answer 8

Intentional interfering with the personal property of another, with insignificant damage to chattel or minor loss of useage.

Question 9

Conversion

Answer 9

If liable for tresspass to chattel, but the amount of the interference is substantial, the tort of conversion has occurred. The converter will be liable for the full market value of the chattell at the time of conversion, plus interest and expenditures made in pursuit of the property.

Question 10

Intentional Infliction of Emotional Distress

Answer 10

Defendant intentionally or recklessly exhibited extreme and outrageous conduct which caused plaintiff to suffer emotional distress. The defendant is liable to any family member also present if the defendant is aware of the presence, or to any other present person if it results in physical harm.

Question 11

False Imprisonment

Answer 11

Defendant intentionally unlawfully confines a person in a bounded area and the person is either aware of or hamed by the confinement. The defendant has a privilege if they reasonably believe the plaintiff committed a felony, where the shopkeepers privilege or citizen’s arrest may be appropriate.

Question 12

Consent

Answer 12

Defendant will nto be found liable for a tort if they received a knowing and voluntary waiver of any harm caused by the tort.

Question 13

Defense of Others

Answer 13

Defendant will not be found liable if using the right of self-defense for their own or others’ safety

Question 14

Privilege to Arrest

Answer 14

This is a defense to false imprisonment. Usually applies when the defendant directly observed a felony. For Citizen’s Misdemeanor arrest, it has to be 1) a breach of the peace; and 2) conducted in the presence of the arresting citizen.

Question 15

Necessity

Answer 15

A defense if the action is necessary to prevent harm to their own or another’s person or their real property. Typse of defenses:
1) Public necessity - if it’s for the good of society, no damages
2) Private necessity - Defendant will not be liable for tresspass, but liable for the damage to the plaintiff’s property.

Question 16

Shopkeeper Privilege

Answer 16

A shopkeeper has the right to temporarily detain persons whom they have a resonable belief shoplifted from their store. This privilege avoids false imprisonment.

Question 17

Attractive Nuisance Doctrine

Answer 17

An attractive nuisance creates liability for a landownder when a condition the owner knows or has reason to know attracts kids, the owner had or had reason to know the condition poses an unreasonable risk of death or serious injury to kids, children cannot appreciate the risk, and the utility to the landowner to maintain the condition v. the burden of fixing it is slight.
Majority rule - The condition doesn’t need to attract, if kids see it after being on the land for other reaons, this doctrine still applies.
Also, doesn’t apply for natural features of the property.

Question 18

Negligence

Answer 18

A claim for negligence can be made when a breach of duty of care to another has actually and proximately caused harm resulting in damages. This requires a showing of 1) a duty owed, 2) a breach of that duty, 3) actual and proximate causation, and 4) damages.

Question 19

Duty to Whom

Answer 19

Under the majority Cardozzo view, a duty of care is only owed to the foreseeable plaintiff within the zone of danger.
Under the minority Anderews view, a duty of care is owed to all foreseeable plaintiffs. (In Palsgraf, term used was “proximate cause”)

Question 20

Duty to Assist

Answer 20

Generally, there is no duty to assist someone in danger. Exceptions exist where a pre-existing relationship exists, the defendant puts the plaintiff in danger, or if a person begins to assist and then quits.

Question 21

Breach

Answer 21

A breach occurs when the defendant’s conduct does not meet the applicable standard of care.

Question 22

Actual Causation

Answer 22

But for the defendant’s conduct, the plaintiff would not have suffered injury

Question 23

Proximate Causation

Answer 23

The injury must have been a foreseeable result of the defendant’s negligence.

Question 24

Standard of Care

Answer 24

Every person owes a duty to act as a reasonable, prudent person under similar circumstances. Specific standards include:
1) Children - Held to standard of a child of similar age, experience and intelligence acting under similar circumstances. If engaged in adult activities, they are held to adult standard of care.
2) Medical Doctors - Held to the standard of an average qualified practitioner, by national standard.

Question 25

Landowner's Responsibiltiy to Entrants

Answer 25

1) Undiscovered Trespasser - Generally, no duty owed 2) Anticipated Trespasser - A landowner must make a reasonable effort not to harm another while conducting operations on the property. They must also ensure they make safe, or at minimum, warn anticipated trespassers of dangerous artificial conditions or equipment on the property. 3) Licenses - A landowner has same obligations for an invited party, such as a social guest, as due to an Anticipated Trespasser 4) Invitee (on the property for landowner's benefit) - A landowner has the same duties owed to a licensee, plus conduct reasonable inspections and correct any latent dangerous conditions.

Question 26

Damages

Answer 26

Negligence requires personal injury or property damage. Claims for pure economic loss are generally not allowed.

Question 27

Negligence Per Se

Answer 27

Doctrine where a defendant who violates a statute or law is considered to have breached a duty. A violator is liable if they violate a law that is designed to prevent a certain type of harm, and the plaintiff is of the type of person the alw was designed to protect. Exceptions exist when the statute is vague, the defendant exercised reasonable care or if the plaintiff was harmed less than they would ahve been if the defendant complied with the law.

Question 28

Res Ipsa Loquitor

Answer 28

Doctrine may allowe a plaintiff to prove their case on soley circumstantial evidence. To establish negligence in this case, a plaintiff must prove that the incident typically would not have happened without negligence, the instrumentality of the harm was solely under the defendant's control, and the plaintiff did not contribute to the cause of harm.

Question 29

Negligence Defenses

Answer 29

Defenses to negligence include assumption of risk, contributory negligence, partial comparative and comparative negligence.

Question 30

Last Clear Chance

Answer 30

A plaintiff can recover despite their own contributory negligence when the defendant had the last clear chance to avoid an accident. Even in contributory negligence jurisdiction, the plaintiff may recover damages.

Question 31

Eggshell Rule

Answer 31

A defendant takes their victim as they find them, and will be liable ffor all harm suffered by the plaintif due to tortious conduct by the defendant.

Question 32

Intervening Cause

Answer 32

An event that takes place after tortious conduct that worsens the plaintiff's injury, but may not break the chain of causation between the defendant and the plaintiff if the injury is foreseeable.

Question 33

Superseding Cause

Answer 33

An act that is unforeseeable and so unrelated to the tort that it serves as a defense to a negligence claim.

Question 34

Pure Comparative Negligence

Answer 34

The amount of fault assigned to the plaintiff will not bar recovery, however, the amount of their damages will be reduced by the percentage of their own fault.

Question 35

Partial Comparative Negligence

Answer 35

If plaintiff contributed 50% or less to their injury, then damages are reduced by their percentage of negligence. However, if they are 51% or more responsible, they recover nothing.

Question 36

Contributory Negligence

Answer 36

Minority Rule - A complete bar to recovery if plaintiff is found even 1% at fault.

Question 37

Assumption of Risk

Answer 37

A defendant will not be found liable for negligene when the plaintiff knowingly and voluntarily assumed the risk.

Question 38

Fireman's Rule

Answer 38

Police and firemen may not sue for negligence in the performacne of their duties because they assume the risk.

Question 39

Negligent Infliction of Emotional Distress

Answer 39

Three types: 1) Zone of danger 2) Pre-existing Relationship 3) Bystander Claims

Question 40

Zone of Danger (NIED)

Answer 40

Negligence by Defendant creates a foreseeable risk fo injury. Here, the plaintiff must be in the zone of danger and must have suffered some physical symptoms

Question 41

Pre-existing Relationship (NIED)

Answer 41

There is a pre-existing relationship between plaintiff and the injured person, and it is foreseeable that the negligent act could cause distress. Physical injury is not a required element.

Question 42

Bystander Claim (NIED)

Answer 42

Plaintiff witnesses negligence by defendant and bears witness to an injury inflicted upon a close family member. Plaintiff must suffer some form of physical injury.

Question 43

Third Party Liability

Answer 43

Pure economic loss cannot be recovered by a third party

Question 44

Vicarious Liability

Answer 44

An employer is vicariously liable for an employee's negligent acts if the employee was acting within the scope of their employment. Scope is determined by the work assigned to the employee and what event or action created the liability.

Question 45

Independent Contractors

Answer 45

Contractors are not typically under the direct control of employers, and as such, are liable for their own torts. To determine the nature of the contractor/employee, courts look at the amount of control the employer has over the person, if the pay was hourly or per job, who owns the tools, if the job was for the benefit of the employer's business, and the length of time the employer worked with the contractor

Question 46

Intentional Torts of Employees

Answer 46

An employer is typically not responsible for intentional torts committed by employees. However, if the employee is directed to commit the act by the employer, or if the tort is one typically closely associated with the performance of duties, then the employer may be vicariously liable.

Question 47

Defamation

Answer 47

Defamation requires a false statement made as if it was a fact (not something that could be described as opinion), made of and concerning the plaintiff by the defendant, that was published to a third party, and damaged the plaintiff.

Question 48

Libel

Answer 48

Written defamation, where damages are presumed due to the long standing nature of writing.

Question 49

Slander

Answer 49

Spoken defamation. Damages must be proven unless it's Slander Per Se

Question 50

Slander Per Se

Answer 50

Some types of statemetns are so injurious that damages are presumed, includign statements that harm the work reputation of the plaintiff, statement that an unmarried woman is unchaste, that the plaintiff suffers a loathsome disease, or where the plaintiff has wrongly been accused of committing a crime of moral turpitude.

Question 51

Publication

Answer 51

Requires transmission to a third party, where a defendant will be liable unless thep ublisher was overheard and it wasn't foreseeable.

Question 52

Defamatory Statement

Answer 52

Language that dimishes respect, esteem or goodwill towards a plaintiff, or deters others from associating with them.

Question 53

Public Figure

Answer 53

A public figure is one htat is well known and earned some level of celebrity or notoriety, or if they have inserted themselves in a public concern. Look out for the wife of a public person - she only needs to prove falsity, negligence and damages.

Question 54

Public Figure Defamation Standard

Answer 54

If the plaintiff is a public official, they must prove either fault (Defendant spoke with reckless disregard as to the truth) or falsity (Defendant knew the statement was false) If the plaintiff is not a public official, but speaking of a matter that is a public concern, only prove defendant spoke negligently

Question 55

Absolute Privilege

Answer 55

Provides immunity from a lawsuit for defamation, even if the action is wrong, malicious or done with improper motive. 1) Spousal, 2) Judicial Proceedings, 3) Legislative Proceedings

Question 56

Privacy Torts

Answer 56

- Misappropriation of Name or Likeness - False Light - Intrusion into Seclusion - Public Disclosure of Private Facts

Question 57

Misappropriation of Name or Likeness (Privacy Tort)

Answer 57

Using the plaintiff's name or image, for commercial gain without consent. Exception: using name or likeness in news coverage

Question 58

False Light (Privacy Tort)

Answer 58

Publication of the plaintiff's actions or beliefs in a false light that would be highly objectionalbe to a reasonable person. If a public person, plaintiff must show malice. Can get damages for non-economic harm, and reputation need not be damaged

Question 59

Intrusion into Seclusion (Privacy Tort)

Answer 59

Defendant intrudes into the plaintiff's private matters, where the plaintiff has a reasonable expectation of priacy, and a reasonable person would be highly offended by the publication of such matters

Question 60

Public Disclosure of Private Facts (Privacy Tort)

Answer 60

Defendant causes widespread distribution of private facts that would be highly objectionable to a reasonably prudent person.

Question 61

Public Nuisance

Answer 61

There is an unreasonable interference with the public's property rights, health or safety. If brought by a private plaintiff, there must be some harm different than that of the rest of the public

Question 62

Private Nuisance

Answer 62

There is significant interefence with a person's use or enjoyment of their real property. It must be significantly inconvenient, harassing or annoying to the reasonable person.

Question 63

Strict Liability for Wild Animals

Answer 63

For domestic animals, no liaiblity unless defendant knew of the animal's viscious propensities. For wild animals, an owner will be held strictly liable for injuries cause by the animal's known dangerous propensities.

Question 64

Strict Liability for Abnormaly Dangerous Activities

Answer 64

An abnormally dangerous activitiy is one that is not of common usage in the community and is dangerous even if reasonable care is used by all actors. The harm must be the type that makes the activity abnormally dangerous, and the danger must be greter than the activity's value in the community.

Question 65

Products Liability Claims

Answer 65

Products Liability Claims may exist under five theories: 1) Negligence; 2) Strict Liability; 3) Implied Warranty; 4) Express Warranty; and 5) Misrepresentation

Question 66

Strict Products Liability

Answer 66

A prima facie case for strict products liability requires: 1) A strict duty owed by a commercal supplier 2) Breach; 3) Causation (actual and proximate); 4) Damages. Recovery strictly for economic loss is not allowed. Assumption of the risk is the only defense.

Question 67

Strict Products Liability Causation

Answer 67

Actual causation requires that the plaintiff trace the harm to a defect that existed at the time when the product left defendant's control.

Question 68

Strict Products Liability Breach

Answer 68

A breach occus when the product was defective at the time it left the manufacturer's or seller's hands, the product was not altered by an intermediary prior to plaintiff's acceptance, the defect caused an injury to the plaintiff, and the supplier is a merchant for this type of good. (Note, proper usage of the product is not required, even if misused in a foreseeable manner, strict liability still exists)

Question 69

Manufacturing Defect

Answer 69

The product differes from other products leaving the production line and is more dangerous than if it were made properly. (i.e. the production line regularly makes things right, but this time it didn't)

Question 70

Design Defect

Answer 70

The design of the product is defective, and every product that leaves the line has the exact same defect. Can be proven by showing a less dangerous alterative at similar cost.

Question 71

Failure to Warn

Answer 71

The plaintiff was not warned of the risks of use that were not obvious to an ordinary user but known to the designer/manufacturer. The warning must be proportionate to the risk with normal use of the product.

Question 72

Consumer Expectation Test

Answer 72

A product is defective if it does not meet the expectations of the average consumer. (used to determine design defect)

Question 73

Feasible Alternative Test

Answer 73

This test requres a search of the marketplace for a feasible alternative. If it can be found at similar ost, then design defect exists.

Question 74

Risk/Utility Test

Answer 74

A product is defective if the burden to make the product safe is slight as compared to the harm that will occur (use with Consumer Expectation Test to see if either test will give design defect)

Question 75

Government Safety Compliance

Answer 75

Non-compliance with government safety standards establishes defect. However, compliance does not necessarily mean that there is no defect.

Question 76

Products Liability - Negligence

Answer 76

A negligence claim based on a defective product requires: 1) Duty; 2) Breach; 3) Causation (actual and proximate); and 4) Damages. A breach will be found when a suppliers' negligence results in the supply of a defective product. Suppliers are liable for all foreseeable misuse of their produc. Any manufacturer or seller may be liable, but it must be shown that their conduct was negligent. Personal injury and property damages are recoverable, not pure economic loss.

Question 77

Products Liability - Negligence - Duty

Answer 77

A duty of care is owed by commercial suppliers, such as manufacturers, wholesalers, and retailers to any foreseeable plaintiff, such as users, buyers, and bystanders, without any privity requirement

Question 78

Products Liability - Negligence - Breach

Answer 78

To prove breach of duty, plaintiff must show negligent conduct by the defendant leading to the supply of the defective product

Question 79

Implied Warranty of Merchantibility

Answer 79

All goods sold by a merchant must be fit for their ordinary purpose. A merchant is a person who deals in goods of this kind.

Question 80

Implied Warranty of Fitness for a Particular Purpose

Answer 80

All products are purchased with an implied warranty for fitness for their particular purpose. This warranty is breached when the seller knows or has reason to know of the buyer's purpose for the product, and the buyer relies on the seller's judgmenet to provide the proper product for the buyer's purpose. Breach of this warranty requires 1) Duty - In every sale of goods, there are two warranties, 1) merchantibility and 2)fitness for a particular purpose, Privity is not required according to the majority view 2) Breach -There is a breach of duty if the goods fail to live up to the warranties 3) Causation (actual and proximate), 4) Damages - Personal injury, property damages and pure economic damages are available; and 5) lack of Defense - Assumption of risk, contributory/comparative negligence

Question 81

Express Warranty

Answer 81

Express warranties exist when the seller makes a deliberate promise to the warranty, or a description of the product, or provides a sample relating to the product, and that warranty factors into the buyer's decision to purchase the product.

Question 82

Misrepresentation in Products Liability

Answer 82

A merchant si strictly liable for any harm to consumers when they knowingly or with reckless disregard misrepresent their product. The misrepresentation must be made with the intent that the user will rely on the misrepresentation in the purchase and use of the product.

Question 83

Abuse of Process

Answer 83

Wrongful use of legal process for ulterior purpose or an act or threat to accomplish the same

Question 84

Negligent Hiring

Answer 84

An employer may be found liable of negligent hiing when they fail to exercise reasonable care in choosing an employee to perform specific tasks.