Torts

Question 1

Battery

Answer 1

D commits a harmful or offensive contact with the plaintiff’s person, caused the contact, and intended it.

General intent sufficient. Act must be volitional.

Extreme sensitivity is disregarded; but “offensive” to a reasonable person.

Question 2

Assault

Answer 2

D places the plaintiff in a (1) reasonable apprehension (2) of an immediate battery. Must intend and cause the tort.

General intent sufficient.
Apprehension = awareness, not fear.

Words lack immediacy, must have overt act (conduct).
Words can negate immediacy of physical threat.

Question 3

False Imprisonment

Answer 3

Defendant must (1) commit a sufficient act of restraint (2) and plaintiff must be confined to a bounded area.

Causation and general intent required.

• A threat is a sufficient act of restraint.
• Omission can be an act of restraint if D owed P a duty.
• Only counts if P know of or is harmed by restraint.
• No formal boundary needed to be a “bounded area”

Question 4

Intentional Infliction of Emotional/Mental Distress

Answer 4

Defendant committed (1) outrageous conduct (2) resulting in severe emotional distress. An intentional tort, but also counts if D behaves recklessly (conscious disregard of distress). Proximate causation needed. Actual SEVERE damages needed, not nominal.

Outrageous= exceeds bounds of decency tolerated in a civilized society. Insults not outrageous.
Factors for outrage=repetitive conduct;common carrier/inkeeper; fragile plaintiff; pushes P’s buttons

Question 5

Trespass to Land

Answer 5

Defendant commits an act of physical invasion on P’s land.

An intentional tort. (requires general intent, meaning intent to do the act or knowing with substantial certainty that the act will occur based on D’s behavior)

Includes air above and soil below, within reasonable distance.

Question 6

Trespass to Chattels.

Answer 6

D interferes with P’s right of possession in a chattel.

An intentional tort.

Question 7

Conversion

Answer 7

D (1) interferes with P’s right of possession in a chattel (2) so seriously as to deprive require D to pay P the full value of the chattel.

An intentional tort.

Can include damaging or taking of property, but also ANY “serious interference” - e.g., taking car for a week-long road trip when only loaned it for an afternoon.

Question 8

Remedy of Equitable Liens (FIX THIS)

Answer 8

When creditor has possession of many items belonging to debtor, and there is a general balance due on all the items (for a service), creditor can keep the items as a lien.

If creditor releases one item, creditor keeps his lien on other items.

When creditor has possession of one of debtor’s items (usually because creditor has performed a service on the item), he can retain the item until debt is paid.

If creditor releases the item, he releases the lien.

Question 9

Consent (As a Defense)

Answer 9

If the plaintiff consented to the activity, it is not a tort.

• Express consent: an affirmative statement from the plaintiff.
• Implied consent: (1) consent implied from custom or usage (2) consent implied from reasonable interpretation of the circumstances
• Consent is an affirmative defense to intentional torts.
• Consent is only valid within its scope.
• Plaintiff must have capacity to consent - minors can consent to “age appropriate invasions of their interests” (e.g. to play) but that’s it.

Question 10

Express Consent (As a Defense)

Answer 10

When plaintiff expressly gives consent for D to do something.

• P can only give consent if P has legal capacity - if a minor, can only give age appropriate consent.
• If D used fraud or duress to induce consent, it is not valid consent.

Question 11

Implied Consent (As a Defense)

Answer 11

1) Consent implied from custom and usage: when business custom, sports, etc, the plaintiff should know what is going on.
2) Consent from D’s reasonable interpretation of P’s objective conduct in the surrounding circumstances: D “reads the situation” as a reasonable person does, from body language and other behavior

Question 12

Self-Defense

Answer 12

If Defendant reasonably believes he is about to be attacked, he may use reasonably necessary force to prevent that attack.

• The threat must be in progress or imminent.
• Reasonable mistake will not destroy the privilege.
• Force must be proportional or necessary

(No duty to retreat on MBE, duty to retreat in some jx)
But even in those jx, no duty to retreat in home.

Question 13

Defense of Others

Answer 13

Defendant can use force to defend another when D reasonably believes other person could have used force to defend himself.

Question 14

Defense of Property

Answer 14

D can use reasonable force to prevent the commission of a tort against his property.

-Deadly force is not allowed. This includes “indirect” deadly force like a vicious dog (even if you have warning signs), a trap gun, etc.

Question 15

Public Necessity Defense

Answer 15

When D commits a property tort in an emergency to protect the community as a whole, it is a defense to liability.

Question 16

Private Necessity Defense

Answer 16

When D commits a property tort in an emergency to protect himself or its own interest, it is sometimes a defense to liability.

• D must pay for any harm he does to P’s property.
• D remains liable for compensatory damages
• As long as emergency continues, P must tolerate D’s presence on his land.

Question 17

Defamation (CL elements)

Answer 17

Defendant must (1) make a defamatory statement that identifies P (2) there must be publication of that statement and (3) there must be harm to P’s reputation.

If there’s a constitutional analysis (for public person/concern), P must also prove (4) falsity [stmt isn’t true] and (5) fault [malice, etc.]

Intent: publication must be made intentionally or negligently (reasonable foreseeability). Compare: actual malice in public concern case.

• Statement is defamatory if it adversely affects reputation; normally need an allegation of fact or an opinion that implies fact.
• Publication can be to just one person.

Question 18

Damages in Defamation (CL)

Answer 18

Harm to P’s reputation is sometimes presumed, and sometimes must be proven, depending on nature of case.

• Libel: presumed damages
• Slander per se: presumed damages.
• Slander not per se: no presumed damages. Must show economic harm (aka “special damages”)

Question 19

Libel

Answer 19

Libel is a defamatory statement where the statement was written or otherwise recorded in a permanent way (taped, filmed)

Harm is presumed for libel.

Question 20

Slander

Answer 20

A spoken or oral defamatory statement. If not slander per se (4 categories), must show economic harm resulting from the harm to reputation. No presumption of harm.

Question 21

Slander Per Se

Answer 21

A slanderous statement in one of our categories:

1) Statement dealing with P’s business/profession
2) Statement that P committed a serious crime
3) Statement that imputes on chastity to a woman
4) Statement that P suffers from a loathsome disease (leprosy and venereal disease)

There is a presumption of harm to P.

Question 22

Defenses to Defamation

Answer 22

1) Consent
2) The statement is true
3) The statement falls under an absolute privilege (spouse or government official) or a qualified privilege

Question 23

Absolute Privileges Against Defamation

Answer 23

1) Spouses: a statement made in confidence between spouses is not defamation
2) Government officials: a statement made by a government agent acting in the course of her duty is not defamation (the prosecutor accusing an innocent person is not defaming)

Question 24

Bailment (definition and duty)

Answer 24

A bailment is when a person with title (bailor) gives possession to someone else (bailee).

The bailee must exercise reasonable care while in possession of the bailment.

If there is a smaller container inside the bailment and it is normal for one to be there, a bailment exists as to the smaller items as well (e.g. a bag in a car when car check with valet)

Question 25

Bailment for Sole Benefit of Bailee

Answer 25

When bailee gets sole benefits from the bailment, must exercise extraordinary care. (Neighbor borrows lawnmower to mow his own lawn).

Question 26

Qualified Privilege Against Defamation

Answer 26

1) Cases where the public interest requires candor
- There is a public interest in encouraging candor in certain situations, such as in reference letters.
2) Statements in the interest of the publisher (defense of one’s own actions, property or reputation)
3) Statements in the interest of the recipient

Question 27

Public Concern Defamation Case

Answer 27

When an issue is newsworthy or the person is a public figure, in addition to proving the three normal elements of defamation (statement identifying P, publication of the statement, harm to reputation) P must prove two more elements:

4) Falsity - P must prove that the statement is actually false.
5) Fault - P must prove that the statement was NOT a reasonable mistake. If P is a public figure (e.g. a politician), must show D KNEW the statement was false or was RECKLESS making it (malice). If P is a private figure (e.g. the politician’s secretary), must show D was NEGLIGENT in making the statement.

Question 28

Common Law Appropriation

Answer 28

When D uses P’s name or image without permission.

However, if newsworthy, not actionable (e.g. picture in newspaper)

Question 29

Common Law Intrusion

Answer 29

An invasion of P’s seclusion in a way highly offensive to an ordinary person. (unauthorized peeping, eavesdropping, wiretapping)

Question 30

Common Law False Light

Answer 30

Widespread dissemination of a material falsehood about P, highly offensive to the average person. “Tort of false gossip.”

Widespread > publication - must tell many people.

Material falsehood broader than statement that does economic harm - e.g. false statements about your religious beliefs.

Question 31

Common Law Disclosure

Answer 31

Widespread dissemination of confidential information about P, highly offensive to the average person. “Tort of true gossip.”

• There is a newsworthiness exception
• Must be truly confidential, semi-private not enough. (Medical records are confidential)

Question 32

Affirmative Defenses to Common Law Privacy Torts

Answer 32

1) Consent is a defense to all four
2) Absolute and Qualified Privileges of defamation are a defense to false light and disclosure (spouse, government official, public interest in candor, public concern)

Question 33

Fraud

Answer 33

“They lied to me, on purpose, with the goal of tricking me, I fell for it, and I got screwed”

1) D makes an affirmative misrepresentation of fact
2) D’s statement is intentional or reckless
3) D intended to induce reliance from P
4) P actually relied on the false statement
5) P actually suffered damages

There are no defenses to fraud

Question 34

Inducing a Breach of Contract

Answer 34

When a third party induces a contracting party to breach.
1) There must be a valid contract between P and X
2) There must be knowledge of that contract by D
3) D persuades X to abandon contract
EXCEPTION: people with a relationship to the breaching party are excepted - family member, attorney, advisor, counselor, clergyman.

Question 35

Theft of Trade Secrets

Answer 35

To prove this tort, there must be:

1) Existence of a trade secret
2) Taken by improper means

A trade secret is a trademark, invention, secret formula, etc.

Question 36

Duty of Care (Negligence)

Answer 36

Ordinarily, one owes a duty to act as a reasonably prudent person would under the circumstances.

• If D has a physical disability, that is included in the definition (e.g. “reasonably prudent blind person”)
• If D has a mental deficiency, that is no excuse
• If D has SUPERIOR skill or knowledge, that is included in the definition (e.g. “reasonably prudent race car driver”)

Question 37

Children’s Duty of Care

Answer 37

Children under 5 owe no duty of care.
Children 5 and older owe an “age appropriate” duty of care - based on their experience and intelligence.

Children engaged in “adult activities” owe the level of care an adult would owe in that circumstance (basically when operating a motor vehicle)

Question 38

Professionals’ Duty of Care (Malpractice)

Answer 38

“A professional must exercise the skill and knowledge normally possessed by other members of that same profession, in good standing.”

That is, “ordinary member” standard not “reasonable person.”

On MBE, the community is a national standard

Applies to accountants, architects, doctors and other medical providers, lawyers.

Question 39

Premises Liability Duties of Care

Answer 39

• Unknown Trespasser - No duty of care.
• Known Trespasser - Must protect from 1) known 2) latent 3) highly dangerous (killing/maiming) 4) artificial conditions.
• Licensees (social guests) - Must protect from 1) known 2) latent 3) hazardous conditions (mild and natural too).
• Invitees - Must protect from 1) latent hazards 2) that were reasonably knowable.

Question 40

Assumption of Risk Defense to Duty of Care (FIX)

Answer 40

Firefighters and police officers have assumed the risks of their jobs when they come onto your land. (This is abolished in NY, unless suing employers or co-workers).

People playing sports have “assumed risk” and do not owe each other a reasonable duty of care, because want to let people play hard.

Question 41

Attractive Nuisance Doctrine

Answer 41

Landowner must take reasonable care to protect TRESPASSING children from artificial conditions on the land.

Depends on likelihood that kids will be on your land and attractiveness of the artificial condition.

This includes affirmative duties, like building a fence around your swimming pool.

Question 42

Statutory Standards of Care (“Negligence Per Se”)

Answer 42

"Class of person, class of risk."
P may be allowed to borrow the standard of a statute as the duty of care IF 1) P is a member of the class the statute is meant to protect and 2) P's harm is of the type the statute is meant to prevent.

EXCEPTIONS:

1) If a greater harm would have resulted from following the statute, do not use it here (i.e. it was “reasonable” to violate the statute)
2) If it was impossible to comply with the statute under the circumstances

Question 43

Duty to Act Affirmatively

Answer 43

Generally there is NO duty to act affirmatively, except:

• If there is a preexisting relationship between D and P, such as parent-child, spouse-spouse, inkeeper-guest, etc.
• If D caused the peril that might harm P

Question 44

Duty During a Rescue

Answer 44

There is no duty to rescue, but once D has undertaken a rescue, must exercise reasonable care.

BUT in many jx, Good Samaritan Law: A gratuitous rescuer is protected from simple negligence. Still liable for gross negligence.

Question 45

Negligent Infliction of Emotional Distress

Answer 45

There are 3 kinds of negligent infliction of emotional distress cases.

1) Near Miss Cases - P was almost hurt
2) Bystander Cases - P saw a close loved one hurt
3) Relationship Cases - D and P have a relationship and it is highly foreseeable D’s carelessness will distress P

Question 46

Negligent Infliction of Emotional Distress - Near Miss (Elements)

Answer 46

Plaintiff can establish NIED in this case when: 1) D’s negligence placed P in a zone of physical danger and 2) P suffers subsequent physical manifestations of distress

Question 47

Negligent Infliction of Emotional Distress - Bystander (Elements) (CL)

Answer 47

At common law, plaintiff can establish NIED in this case when:

1) D harms a third party, X
2) P has a close family relationship to X
3) P was a contemporaneous observer of the accident

In MOST states, the bystander must also suffer PHYSICAL MANIFESTATIONS

Question 48

Negligent Infliction of Emotional Distress - Relationship (Elements)

Answer 48

Plaintiff can establish NIED in this case if P and D have a preexisting business relationship, and it is highly foreseeable that P will be caused distress by D’s carelessness.

Ex: D is P’s doctor, negligently handles blood test, gives P a false HIV positive diagnosis.
Ex: Funeral parlor and customer: switching the bodies of the deceased causes NIED.
Ex: Caterer and customer: Orthodox Jewish wedding, caterer has all shrimp for appetizers

Question 49

Breach (Negligence)

Answer 49

Defendant must breach his duty of care to P as an element of negligence.
“The breach here was…”
“This is unreasonable because…”

Ways to tell a breach:

• Deviation from custom
• Cost-benefit analysis
• Common sense (“Running P over with his car was a breach”)

Question 50

Res Ipsa Loquitur

Answer 50

“The thing speaks for itself.” When P cannot prove what D did wrong, but knows D must have done something, because:

1) Accident is of a type normally associated with negligence, and
2) D has control over the instrument that caused the accident (i.e. D would be the only plausible cause of the accident)

Question 51

Factual Cause

Answer 51

Plaintiff must establish that there is an actual connection between D’s actions and P’s harm - i.e., that BUT FOR D’s breach of duty, P would not have been harmed.

Question 52

Merged Causation / Substantial Factor Test

Answer 52

When two Ds each commit tortious acts independently that merge to cause harm to the P, a D is liable if his own breach is a substantial factor of the harm to P (meaning it would have harmed P even by itself)

Ex: two fires merge.

Question 53

Unacertainable Cause (Factual Cause)

Answer 53

When 2 or more Ds commit the exact same breach at the exact same time but it is hard to determine which D actually harmed P, burden shifts to Ds to prove the case.

Ex: shotgun pellet in P’s eye.

Question 54

Proximate Cause

Answer 54

D’s breach will be found to be the proximate cause of the harm if the harm was a foreseeable consequence of the breach.

Factors to consider: time between breach and harm, distance, if outcome seems “normal”

Question 55

Four Categorical Cases in Proximate Cause

Answer 55

Original D is the proximate cause (and therefore is liable) for later harms in these four cases:

1) Intervening Medical Malpractice - “driving people into the medical system”
2) Intervening Negligent Rescue - “committing a tort attracts rescuers”
3) Intervening Reaction or Protection Forces - “careless acts will cause people in the vicinity to try to protect themselves, and they may then commit harms”
4) Subsequent Disease or Accident - “if you hurt someone, they may sustain follow-up injuries”

Question 56

Damages/Harm (Negligence)

Answer 56

To make a case for negligence, P must actually suffer a harm.

Question 57

Eggshell Skull Doctrine

Answer 57

If P is unusually weak and sustains greater injuries for that reason, D is still liable. “Take the plaintiff as you find him.”

Ex: I bump into someone negligently, she has a bone disease, ends up with severe injuries - I am liable.

Question 58

Permanent Injunction (elements)

Answer 58

To mandate D to do something or to prohibit D from doing something. Must show 4 elements:

1) No adequate remedy at law. (Factors: repeated conduct, high sentimental value)
2) Tort involves a protectable interest (it always does)
3) Injunction is enforceable (mandatory injunctions hard to enforce)
4) Balance of hardships favors P

Question 59

Defenses to Injunction

Answer 59

Not defenses to overall liability, just to injunction as remedy:

1) Unclean Hands - P is guilty of misconduct as well (ex: P wants injunction against D for land trespass, P does it too)
2) Laches - prejudicial delay. P waited too long, D could’ve done something earlier.
3) First Amendment - no prior restraints on newspaper for defamation (See Times v Sullivan in Con Law outline)

Question 60

Preliminary Injunction

Answer 60

To preserve the status quo during litigation. Must demonstrate:

1) Likelihood of success on the merits, and
2) Irreparable harm to P without the preliminary injunction

Question 61

Contributory Negligence

Answer 61

P’s negligence bars recovery. This exists in few jx now.

EXCEPTION: the Last Clear Chance Doctrine - negligent P avoids liability where D had last clear chance to avoid P’s harm but failed to do so. Or if D’s negligence was more egregious than P’s, i.e. reckless or wanton, then P can recover.

Question 62

Modified Comparative Negligence

Answer 62

P’s negligence of 50% or more bars recovery.

Question 63

(Pure) Comparative Negligence

Answer 63

Damages are apportioned by percentage of fault.

Ex: P is 90% at fault and D is 10% at fault, and harm to P is 100k. D must still pay 10k.

Question 64

Three Types of Strict Liability

Answer 64

1) Strict Liability for Animals (wild and domesticated)
2) Strict Liability for Inherently Dangerous Activities
3) Strict Products Liability (Manufacturing Defects, Design Defects, Informational Defects)

Question 65

Strict Liability for Animals

Answer 65

If D keeps a wild animal, always strictly liable.

For domesticated animals, D is strictly liable for its torts ONLY if the owner has knowledge of the animal’s vicious propensities. (Demonstrated by a prior attack - “one free bite.”)

Question 66

Strict Liability for Inherently/Abnormally Dangerous Activities

Answer 66

There is strict liability if: 1) activity creates a serious risk of harm even if reasonable care is exercised or 2) the activity is not common in the community where D conducted it.

Ex: nuclear energy, transporting explosives.
NOTE: transporting TNT, some falls off the truck and hurts P’s foot but doesn’t explode - no strict liability because didn’t explode, harm not from the “inherently dangerous” part.

Question 67

Strict Products Liability (Elements)

Answer 67

D is liable if P proves:

1) D is a merchant who ordinarily deals in this type of product
2) Product is defective (this is the big one)
3) The defect existed when the product left D’s hands, meaning it has not been altered by P or someone else (though, if P’s alteration is foreseeable, design defect action may still be viable)
4) P makes a foreseeable use of the product (not just proper use)

Question 68

Prenatal Injuries / Wrongful Pregnancy

Answer 68

P can sue doctor D for negligently failing to find a genetic defect or properly perform a contraceptive procedure.

P can recover damages for:

• pain and suffering for pregnancy and labor
• additional medical expenses
• additional expenses of treating a child’s disease.

Recovery is uncertain or even blocked for recovering the costs of raising a child, as courts sometimes find the benefit of having a child outweighs the pecuniary costs of raising it.

Question 69

Manufacturing Defect

Answer 69

When the product departs from its intended design (it was a bad apple in the production line)

Question 70

Design Defect

Answer 70

When the risks of the product’s design outweigh its utility. This is proven by showing:

• an alternative viable design which is not substantially more expensive
• failure to conform to government regulations is proof of a defect, but proof of conformity with government regulations is not a defense

Question 71

Informational Defect / Inadequate Warning

Answer 71

When product has residual risks that a consumer is not aware of, that cannot be designed out in a practical way, and the product lacks sufficient warnings about these risks.

Not all warnings are equal - might need to be more conspicuous.

Question 72

Comparative Responsibility

Answer 72

The only affirmative defense to strict products liability, it is similar to comparative negligence.

If P behaved carelessly, his recovery is reduced by the percentage that the injury is his fault.

Question 73

Nuisance

Answer 73

An intangible interference with a property owner’s use and enjoyment of his land, which is both substantial and unreasonable. A substantial interference is one that is offensive, inconvenient or annoying to the average person in the community.

Reasonableness is determined by balancing costs and benefits.

To be liable, D must act knowingly, intentionally, negligently (reasonable foreseeability), or be conducting an abnormally dangerous activity.

If P is hypersensitive, no nuisance - it is a reasonable person standard.

Question 74

Employer Vicarious Liability

Answer 74

An employer is strictly liable for a tort committed in the scope of employment.

A small detour from employer’s task is still considered within the course of employment.

Generally an employer is not liable for the intentional torts of employees, UNLESS:

1) the employee is authorized to use force as part of his job (bouncer),
2) the job creates a lot of animosity or tension (repo man),
3) or the tort was committed with the intent to serve the employer’s interest (overzealous security guard searches everyone)

Question 75

Independent Contractor Vicarious Liability

Answer 75

In general, a person hiring an independent contractor is not liable for the torts of an independent contractor.

The EXCEPTION is when the independent contractor hurts an invitee on the premises - then, strict liability.

Question 76

Car Owner Vicarious Liability (CL)

Answer 76

A car owner is not liable for the tort of the driver UNLESS the driver is doing an errand for the car owner (is the car owner’s agent).

Question 77

Joint and Several Liability

Answer 77

Under traditional joint and several liability, if there are multiple defendants, P can recover the full amount of damages from EITHER D.

Question 78

Comparative Contribution and Indemnification

Answer 78

When there are multiple defendants and one pays the P, that D can get comparative contribution from the other Ds, up to their percentage of fault. Can also recover from P.

D is indemnified (receives 100% contribution from co-D) in two situations:

1) Vicarious Liability - the VL D gets indemnified by the active tortfeasor
2) Products Liability - a retailer gets indemnified by the manufacturer

Question 79

Loss of Consortium

Answer 79

When an injured person is married, the spouse has a derivative claim of loss of consortium against the D.

Derivative means D can use same affirmative defenses against spouse as against the injured person (i.e. comparative negligence).

Spouse’s loss of consortium claim is based on:

1) Loss of services (cleaning, cooking)
2) Loss of society (words of companionship)
3) Loss of sex