Torts

Question 1

Assault

Answer 1

To establish a prima facie case for assault, the plaintiff must show (1) an act by the defendant creating a reasonable apprehension in the plaintiff of immediate harmful or offensive contact to the plaintiff’s person; (2) intent by the defendant to bring about such apprehension; and (3) causation.

Question 2

Battery

Answer 2

To establish a prima facie case for battery, the plaintiff must show (1) an act by the defendant that brings about harmful or offensive contact to the plaintiff’s person; (2) intent by the defendant to bring about such contact; and (3) causation. For purposes of battery, anything connected to the plaintiff’s person is viewed as part of the plaintiff’s person. Furthermore, a person may recover for battery even though she is not conscious of the harmful or offensive contact (i.e., during medical surgery or after fainting from assault).

Question 3

False Imprisonment

Answer 3

To establish a prime facie case for false imprisonment, the plaintiff must show (1) an act or omission by the defendant that confines or restrains the plaintiff to a bounded area; (2) intent on the defendant’s part to confine or restrain the plaintiff; and (3) causation. False imprisonment may be accomplished by a threat of force against the plaintiff, and it is immaterial how short the time period of the restraint was, except as to the extent of damages.

Question 4

Intentional Infliction of Emotional Distress

Answer 4

A prima facie case for intentional infliction of emotional distress requires the following elements: (1) and act by the defendant amounting to extreme and outrageous conduct; (2) intent by the defendant to cause the plaintiff to suffer severe emotional distress, or recklessness as to the defendant’s conduct; (3) causation; and (4) damages–severe emotional distress.

Question 5

Trespass to Chattels

Answer 5

The elements to trespass to chattels are (1) an act by the defendant that interferes with the plaintiff’s right of possession in the chattel; (2) intent to do the act that brings about the interference; (3) causation; and (4) damages. While actual damages are required, the loss of possession itself is deemed to be an actual harm. If the interference with the chattel is so serious in nature or in consequences as to amount to a claim of dominion over the chattel, the interference will constitute a conversion.

Question 6

Conversion

Answer 6

To prove a prima facie case of conversion, the plaintiff must show: (1) an act by the defendant interfering with the plaintiff’s right of possession in the chattel that is serious enough in nature or consequence to warrant that the defendant pay full value of the chattel; (2) intent to do the act that brings about the interference with the plaintiff’s right of possession; and (3) causation.

Question 7

Defamation

Answer 7

Defamation is a defamatory statement of or concerning the plaintiff, published to a third party that causes damages to the plaintiff.

Question 8

Defamatory Statement

Answer 8

A defamatory statement is one that tends to lower plaintiff’s reputation within the community.

Question 9

Of or Concerning the Plaintiff (defamation)

Answer 9

A reasonable person must have understood that the statement was of or concerning the plaintiff.

Question 10

Published to a Third Party (defamation)

Answer 10

The statement must have been published to a third party who understood the statement.

Question 11

Damages (defamation)

Answer 11

General damages are presumed for libel. Libel is written defamation. Special damages are presumed for slander per se. Slander per se is spoken defamation regarding: (1) adversely reflecting on one’s conduct in a business or profession; (2) one has a loathsome disease; (3) one is or was guilty of a crime of moral turpitude; or (4) unchastity of a woman. Special damages (i.e., economic damages) are required for slander. Slander is spoken defamation not involving one of the four categories mentioned.

Question 12

Constitutional Defamation

Answer 12

Whenever there is a matter of public concern, the plaintiff must also prove the additional elements of fault and falsity.

Question 13

Constitutional Defamation (fault)

Answer 13

The type of fault that plaintiff must prove depends on whether plaintiff is a public or private figure. A public figure is one who achieves fame or notoriety or is in government office. If plaintiff is a public figure, he must prove New York Times malice, which requires a showing of knowledge that the statement was false, or reckless disregard as to whether it was false. This is a subjective test. If the plaintiff is a private figure then he must prove Gert negligence, which means he need only show negligence regarding the falsity of the statement if that statement involves a matter of public concern. Where defendant is only negligent, only actual injury damages are recoverable. However, if a private plaintiff can show malice on the part of the defendant, damages may be presumed and plaintiff may be able to recover punitive damages.

Question 14

Absolute Privilege (defamation defense)

Answer 14

Defendant may be protected by an absolute privilege for the following: remarks made during judicial proceedings, by legislators in debate, by federal executive officials, in “compelled” broadcasts, and between spouses. An absolute privilege can never be lost.

Question 15

Qualified Privilege (defamation defense)

Answer 15

Speakers may have qualified privilege for the following: reports of official proceedings; statements in the interest of the publisher, such as defense of one’s actions, property, or reputation; statements in the interest of the recipient; and statements in the common interest of the publisher and recipient. This privilege may be lost if: (1) the statement is not within the scope of the privilege; or (2) it is shown that the speaker acted with malice. Defendant bears the burden of proving that a privilege exists.

Question 16

Negligence

Answer 16

To prevail in a negligence claim, plaintiff must show that (1) defendant owed plaintiff a duty of care; (2) defendant breached that duty; (3) the breach of duty was the actual and proximate cause of the harm; and (4) plaintiff suffered damages.

Question 17

Duty of Care Owed to Foreseeable Plaintiff

Answer 17

A general duty of care to act as a reasonable person is owed to all foreseeable plaintiffs. If the defendant’s conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff. Under the majority (Cardozo) view, the plaintiff must be within the foreseeable zone of danger from the defendant’s activity to be owed a duty of care. Under the minority (Andrews) view, the duty of care is owed to anyone.

Question 18

Duty of Care (General Standard)

Answer 18

The general standard of care is that of a reasonable, ordinary, prudent person under the same or similar circumstances.

Question 19

Duty of Care (Statutory Standard)

Answer 19

The standard of care in a common law negligence case may be established by proving the applicability to that case of a statute providing for a criminal penalty. If that is done, a specific duty imposed by the statute will replace the general common law duty of care. For the statutory standard to apply, the plaintiff must show that (1) she is in the class intended to be protected by the statute, and (2) the statute was intended to prevent the type of harm that the plaintiff suffered.

Question 20

Breach of Duty (General Standard)

Answer 20

When the defendant’s conduct falls below the level required by the applicable standard of care, the defendant has breached his duty.

Question 21

Breach of Duty (Statutory Standard)

Answer 21

If a statutory standard of care applies, most courts consider violation of the statute as “negligence per se”, i.e. conclusive presumption of duty and breach.

Question 22

Actual Cause

Answer 22

The defendant’s conduct is the actual cause of the plaintiff’s injury if the injury would not have occurred but for the defendant’s conduct.

Question 23

Proximate Cause

Answer 23

In addition to being the actual cause, the defendant’s conduct must also be the proximate cause of the injury. The general rule of proximate cause is that the defendant is liable for all harmful results that are foreseeable.

Question 24

Proximate Cause (Intervening and Superseding Forces)

Answer 24

In an indirect cause case, an intervening force comes into motion after the defendant’s negligent conduct and combines with it to cause the plaintiff’s injury. If the defendant’s negligence created a foreseeable risk that this intervening force would harm the plaintiff, the defendant is liable for the harmed caused. Under this rule, if the defendant’s negligence created a foreseeable risk that a third person would commit a crime or intentional tort, the defendant’s liability will not be cut off by the crime or tort. On the other hand, if the crime or tort is not foreseeable, it will be deemed a superseding force and cut off the defendant’s liability for the harm.

Question 25

Damages (negligence)

Answer 25

A plaintiff is entitled to be compensated from the tortfeasor for all her damages, even if the extent or severity of the harm is unforeseeable (i.e., the tortfeasor takes the plaintiff as he finds her).

Question 26

Strict Products Liability

Answer 26

A commercial seller who places a product in the stream of commerce may be strictly liable in tort for injuries caused by a defective product. In order to prevail in SPL cause of action, plaintiff must show the defendant is a commercial supplier of a product, production or sale of a defective product, actual and proximate causation, and damages.

Question 27

Commercial Supplier (SPL)

Answer 27

A commercial seller may be liable for supplying unsafe products. A casual seller will not be held strictly liable. (Also, SPL applies to products and NOT services.) Whether or not contractual privity exists between the plaintiff and defendant will not prevent plaintiff from recovering, because any foreseeable plaintiff, including a bystander, can sue any commercial supplier in the chain of distribution regardless of a contractual relationship between them.

Question 28

Production or Sale of a Defective Product (SPL)

Answer 28

The plaintiff need not prove that the defendant was at fault in selling or producing a defective product–only that the product is defective. Two main categories of defects are manufacturing defects and design defects (which includes inadequate warnings).

Question 29

Manufacturing Defect (SPL)

Answer 29

If a product emerges from manufacturing different from and more dangerous than the products made properly, it has a manufacturing defect. One way to prove manufacturing defect is with the Consumer Expectation Test, which says the defendant will be liable if plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect (defendant must anticipate reasonable use).

Question 30

Design Defect (SPL)

Answer 30

For a design defect, plaintiff will use the Feasible Alternative Test to establish the existence of a design defect. Under the Feasible Alternative Test, plaintiff must show that defendant could have made the product safer, without serious impact on the product’s price or utility.

Question 31

Inadequate Warnings (SPL)

Answer 31

A product may be defective as a result of the manufacturer’s failure to give adequate warnings as to the risk involved in using the product. For liability to attached, the danger must not be apparent to users.

Question 32

Government Safety Standards (SPL)

Answer 32

A product’s noncompliance with government safety standards establishes that it is defective, while compliance with safety standards is evidence–but not conclusive–that the product is not defective.

Question 33

Actual Cause (SPL)

Answer 33

To show actual cause, plaintiff must show that the defect existed when the product left defendant’s control.

Question 34

Proximate Cause (SPL)

Answer 34

The type of injury must have been foreseeable at the time the product was placed in the stream of commerce. Defendant will not be liable for dangers not foreseeable at the time of marketing.

Question 35

Duty of Care (NPL)

Answer 35

A duty of care is owed to all foreseeable plaintiffs. A foreseeable plaintiff is anyone in the zone of danger (majority view). Users of products, bystanders, and consumers of the product are all foreseeable plaintiffs. Privity with the defendant is no longer required. Foreseeable plaintiffs are owed a standard of care of that of a reasonably prudent manufacturing company.

Question 36

Proximate Cause (NPL)

Answer 36

The type of injury must have been foreseeable at the time the product was placed in the stream of commerce. Defendant will not be liable for dangers not foreseeable at the time of marketing.

A wholesaler’s/intermediary negligent failure to discover a defect does not supersede the original manufacturer’s negligence unless the wholesaler’s conduct exceeds ordinary foreseeable negligence.

Question 37

Private Nuisance

Answer 37

Private nuisance occurs when the land is invaded by intangibles, such as odors or noises, that substantially and unreasonably interfere with a private individual’s use or enjoyment of her property.

Question 38

Substantial Interference

Answer 38

Interference is substantial when it would be offensive, inconvenient, or annoying to an average person in the community, as opposed to merely the result of the plaintiff’s hypersensitivity.

Question 39

Unreasonable Interference

Answer 39

Interference is unreasonable when the severity of the inflicted injury outweighs the utility of the defendant’s conduct. To make the balancing determination, courts take into account that every person is entitled to use his land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courses of conduct open to the defendant.

Question 40

Public Nuisance

Answer 40

A public nuisance is an invasion of intangibles that unreasonably interfere with the health, safety, or property rights of a broad segment of the community, rather than one or a few individuals. However, recovery is available for public nuisance only if a private party has suffered some unique damage not suffered by the public at large.