Torts

Question 1

TIP: Look to the call of the question. Does the question give you the call, or are there options?

Answer 1

Look to all the facts! Don’t just look at the first and last line.

Question 2

Define Battery?

Answer 2

Act
Intending to cause a harmful or offensive contact with the person of another; and
An offensive or harmful contact directly or indirectly results.

Question 3

3 types of battery?

Answer 3

1) Intends to commit an offensive contact, and an offensive or harmful contact occurs.
2) D intends to commit an assault and a harmful contact occurs.
3) D commits an act, which he knows creates a SUBSTANTIAL CERTAINTY that a harmful or offensive contact will occur (think swinging knumb chucks in an elevator).

Question 4

Define the defense of consent?

Answer 4

1) If the victim gives permission, what would otherwise be tortious is instead privileged.
2) An individual can convey consent expressly in WORDS or through NON VERBAL gestures.
3) An individual can imply consent when, under the circumstances, the conduct of hte individual reasonably conveys consent.
4) Consent can also be implied by law. (Medical emergency when a victim is unconscious and unable to give consent).

Question 5

Consent in a physical sport is what?

Answer 5

Taking part in a game manifests a willingness to submit to such bodily contact that are permitted by its rules or usages. If beyond the rules, NO COSNET.

Question 6

REMEMBER: Battery requires INTENT to make contact.

Answer 6

Accidentally falling into someone is not INTENT.

Question 7

TESTING TIP: Must meet ALL elements first. If an element is missing, then you don’t need defenses.

Answer 7

Must prove all elements first, and then look to defenses.

Question 8

Define Assault

Answer 8

An act by the D that creates a REASONABLE apprehension in the P of immediate harmful or offensive contact.

** Requires intent on the part of the D to bring about apprehension of immediate harmful or offensive contact in the P.

** Causation.

Question 9

What constitutes “contact” for assault and battery?

Answer 9

Protection against unpermitted contacts extends to ANY part of the body, or to anything which is ATTACHED to it and practically identified with it.

(Contact with the P’s clothing, cane, paper or any object held in the hand, a chair or horse on which he is sitting, or a car in which he is riding or driving)

Question 10

BATTERY AND ASSAULT REQUIRE

Answer 10

INTENT!!!!!

Question 11

Define IIED?

Answer 11

1) Extreme and outrageous conduct;
2) Intent by D that P suffer severe emotional distress, or recklessness;
3) Causation; and
4) Damages - SEVERE emotional distress.

Question 12

In order for a 3rd party to recover for IIED or NIED, what two elements are required?

Answer 12

1) the 3rd party must be a CLOSE family member of the person to whom the defendant is directing his (extreme and outrageous) conduct; AND
2) the D should be aware of the presence of the third person.

*** If the 3rd person is not a close family member, then he must suffer BODILY HARM in order to prevail **

Question 13

Define the defense of PRIVATE necessity?

Answer 13

Private necessity will excuse tortious conduct aimed at property.

However, When the act is for the benefit of the actor of a third person, he is subject to liability for any harm caused by the exercise of the privilege.”

Remember: both property and personal injury damages are awarded here.

Question 14

Define conversion?

Answer 14

The actor only needs an intent to take, REGARDLESS of her intent to take (mistakenly taking the property of another.)

** An actor is NOT relieved of liability to another for conversion by his belief, because of a mistake of law or fact not induced by the other, that he has possession of the chattel.”

Question 15

What is required for trespass to land?

Answer 15

INTENT!

If you do not intend to be there you are not responsible UNLESS there is damage caused to the land.

Question 16

Define false imprisonment?

Answer 16

1) an act by defendant that confines or constrains plaintiff;
2) to a bounded area;
3) defendant intends to confine; and
4) causation.

Question 17

What is the shopkeeper’s privilege?

Answer 17

A businessman who reasonably suspects a customer of theft or of failure to pay may detain the suspected individual for a short time in order to investigate.

THe privilege is, however, a very restricted one, confined to what is reasonably necessary for its limited purpose of enabling the defendant to do what is possible on the SPOT to discover the facts.

** Reasonable is the key here ***

Question 18

What is duty?

Answer 18

What? A legal requirement to act as an ordinary, prudent, reasonably person taking precaution against unreasonable risks of injury to others.

To Whom? All foreseeable plaintiffs.

When? Everyday situations. Emergency situations

Question 19

What are the duties of care to:
Trespasser?
Licensee?
Invitee?

Answer 19

Trespasser: Unkown - no duty

Licensee: we “like” - friend: warn of known dangers

Invitee: customer - 1) Inspect; and 2) Make Safe

Question 20

Define Negligence Per Se?

Answer 20

Statute designed to:

• The P. must be a member of the class of persons intended to be protected by the statute (Prevent this type of injury); and
• The harm suffered must be of a type that the statute was designed to protect against (Protect this class of plaintiff).

(Usually applies when there is a statute given in the question).

Question 21

Define Res Ipsa Loquitur.

Answer 21

1) THe accident does not normally occur absent negligence on the part of the defendant; AND
2) The instrumentality causing the accident was within the defendant’s EXCLUSIVE control.
OR

1) in the absence of negligence, the accident would not have occurred;
2) other causes are eliminated by the evidence; and
3) the thing hat cause the injury is shown to have been under the exclusive control of the alleged wrongdoer

Question 22

Always assume what type of liability unless told otherwise?

Answer 22

Joint and several liability, with pure comparative negligence.

Question 23

Define concurrent causation (joint tortfeasorts).

Answer 23

Where the combined negligence acts of two or more tortfeasors cause an indivisible injury (incapable of appointment) each tortfeasor is held jointly and severally liable.

Remember: in most cases, the court places the burden of proof on the issue of causation upon the two DEFENDANTS, not the Plaintiff, UNLESS the Defendant can prove that he is not culpable, liability will be imposed.

Question 24

Define Release.

Answer 24

• When a tortfeasor makes a pretrial agreement to pay her share of the damages awarded to plaintiff, such settlements usually preclude the court’s determination of each tortfeasor’s relative liability.
• THe settling defendant’s percentage of fault is deducted from the damages awarded to the plaintiff regardless of actual payment made by the settling defendant.

Question 25

Remember: A shopkeeper is generally not liable for the intentional tortious acts of third persons.

Answer 25

.

Question 26

What are Unforseeable/Superseding Causes?

Answer 26

1) Acts of God (lightening, floods);
2) Intentional torts of third parties;
3) Intentional crimes of third parties.

If unforeseeable - Defendant not liable (superseding)

Question 27

What are examples of foreseeable intervening causes?

Answer 27

1) subsequent medical malpractice;
2) negligence of rescuers;
3) subsequent disease;
4) subsequent accident.

Where the defendant suffers a subsequent injury following her original injury, and the original injury was a substantial factor in causing the second accident, the original tortfeasor is usually held liable for damages arising from the second accident.

Question 28

Abnormally dangerous activities are?

Answer 28

1) A category of activity subject to strict liability.
2) If the activity creates a risk of serious injury to the land or chattels of the P or to the P himself and this risk cannot be eliminated through the exercise of due care, and that particular activity is not generally performed in that particular physical area.

Examples - stores of explosives, fumigation, crop dusting, the storage of flammable liquids, pile driving, and maintenance of a hazardous waste site.

Question 29

Wild animals?

Answer 29

An owner of a wild animal is strictly liable to persons who are injured by the animal.

Examples - lions, tigers, bears, elephants, wolves, monkeys, and sharks, snakes, spider.

Question 30

Strict Product Liability

Answer 30

One who sells a product in a defective condition unreasonably dangerous to the user or consumer is held STRICTLY LIABLE for the harm or injury that is caused.

DEFECTIVE and DANGEROUS are the words that trigger strict liability.

Question 31

Products Liability Defendants when dealing with strict products liability.

Answer 31

• One who sells a product in a defective condition unreasonable dangerous to the user or consumer.

Defendant must be a commercial seller of such products. A SELLER IN THE ORDINARY CONDITION.

Be careful not to confuse with NEGLIGENCE. Need only prove in the business of selling.

Question 32

Define Misrepresentation.

Answer 32

1) False Statement
2) Scienter (guilty knowledge)
3) Intent to induce the plaintiff to act
4) Justifiable reliance
5) Damages

My Fat Mother is Jewish.

** Honest belief is a valid defense **

Question 33

Define Private Nuisance

Answer 33

A disturbance that creates a SUBSTANTIAL and UNREASONABLE interference with the use and enjoyment of ones property.

The disturbance must be annoying, offensive, or inconvenient to NORMAL person in the particular locality.

Don’t get trapped by the “hypersensitive” plaintiff.

Question 34

Defamation

Answer 34

Defamatory - statement of fact, NOT OPINION

Publication - to any 3rd party who reasonably understands (this is important - think foreign language person doesn’t understand).

Damages -General damages presumed, special damages required (except liable & slander per se)

P’s Standard of Proof - Fault & Falsity: public official, public figure - malice

Private person

1) matter of public concern (published in newspaper) - negligence
2) matter of private concern (letter to another person)- publication only.

*** ONLY STATEMENTS OF FACT ARE ACTIONABLE FOR DEFAMATION **

Question 35

Define Slander Per Se.

Answer 35

Defamatory statement imputes:

• Loathsome diseases
• Unchastity to a woman
• Improper conduct in one’s trade, business or profession (the BIG one).
• False accusation of a crime.

In all of these, SPECIAL damages are PRESUMED!

Question 36

Invasion of Right to Privacy

Answer 36

4 subcategories to this Tort:

1) Appropriation
2) False light
3) Intrusion upon seclusion
4) Public disclosure of private facts.

Question 37

Define False Light.

Answer 37

.

Question 38

Define Public Disclosure of Private Facts.

Answer 38

.

Question 39

Define Intrusion on One’s Seclusion and Solitude.

Answer 39

.

Question 40

Define Battery

Answer 40

1) Intent
2) Harmful or Offensive Contact
3) With Plaintiff or something closely connected to Plaintiff.

Question 41

What is sufficient intent for batter?

Answer 41

1) desired contact (just touching) even if motive was pure (the purpose need only to be contact);
2) knew or substantially certain to result.

Question 42

What is harmful in battery?

Answer 42

Any amount of physical comfort is enough.

Question 43

What is offensive in battery?

Answer 43

offensive to reasonable person unless the Defendant knows of the person’s susceptibility.

Question 44

What else can constitute battery?

Answer 44

Touching someone’s glasses, purse, etc….

Question 45

Define Assault

Answer 45

1) Apprehension
2) Intent
3) Harmful or Offensive
4) Bodily contact

Question 46

What is enough apprehension for assault?

Answer 46

1) the purpose to create apprehension; or
2) knew apprehension would result.

• ** The plaintiff has to be aware it’s about to occur ***
• • Must be reasonable unless knows of particular susceptibility **

Question 47

REMEMBER: Assault and Battery DO NOT MERGE.

Answer 47

.

Question 48

What is imminence?

Answer 48

Almost immediate (no real delay of time).

Question 49

Define False Inprisionment

Answer 49

1) Intent
2) Confinement
3) Against P’s will; and
4) P knows of confinement or is injured thereby.

Question 50

What constitutes confinement for F/I?

Answer 50

Actually must be confinement of the P in a BOUNDED area. The legnth of confinement DOES NOT MATTER!!

Question 51

REMEMBER: If the P knows of a reasonable means of escape, there is no confinement.

Answer 51

.

Question 52

HINT: Whenever you use the word reasonable, you should talk about it in an ESSAY.

Answer 52

.

Question 53

What is enough for “against the P’s will?”

Answer 53

If they consent to confinement, it’s not enough. (i.e. come with me - we are going to call the police, when she came with them it’s consent).

Question 54

Define IIED

Answer 54

1) Intent/Reckless
2) Extreme or outrageous conduct
3) Causation
4) Sever emotional distress.

Question 55

What is the mental state for IIED

Answer 55

In addition to intent, defendant can show reckless conduct. (Calling someone to say their child has been rushed to the ER when they haven’t).

Question 56

REMEMBER: NO transferred intent for IIED.

Answer 56

HOWEVER, 3rd parties can recover if they can show recklessness (example - conduct done in front of someone where the actor KNOWS the third person is there).

Question 57

What constitutes EXTREME and OUTRAGEOUS?

Answer 57

Excedes conduct tolerated by all civilized society. This is a high bar!

Question 58

Exceptions where lesser conduct will be enough for IIED:

Answer 58

1) Inn keeper or common carrier;
2) The D knows of the P’s susceptibility; and
3) Someone in a position of authority uses racial or ethnic insults.

Question 59

What is severe emotional distress?

Answer 59

Not injury! The P must put on PROOF that the injury is not trivial.

Question 60

Define trespass to land.

Answer 60

1) Intent
2) Entry
3) P’s land.

Question 61

What is intent for trespass to land?

Answer 61

This is not intuitive. The P has to show the D desired to enter,or that entry is virtually certain to result. (Mistake doesn’t matter - not trespass, intent to ENTER).

Question 62

What constitutes entry for trespass to land?

Answer 62

Anything - even a pesticide to land. (smells = nuisance).

Question 63

Who can bring an action in trespass to land?

Answer 63

Anyone in POSSESSION of the land - landowner, tenant, adverse possessor.

Question 64

What are the categories of tort remedies?

Answer 64

1) Legal Damages
2) Restitutionary remedies
3) Equitable remedies (injunction)

Question 65

Special things for T2L:

Answer 65

1) nominal damages are recoverable -
2) ejectment - an action brought by a P to recover possession of REAL property;
3)

Question 66

Define trespass to chattels

Answer 66

1) interference or meddling
2) intent
3) P’s property (chattel)
4) harm

Question 67

What is intent in trespass to chattel?

Answer 67

Even reasonable mistake doesn’t relieve liability.

Question 68

What type of harm is required for trespass to chattels?

Answer 68

It has to be measurable.

Question 69

Checklist for Torts question?

Answer 69

1) Who is the Plaintiff
2) Who is the Defendant/responsible parties?
3) What is the nature of the plaintiff’s injury?
4) What legal theory or theories can the Plaintiff pursue? (Negligence is always the default)

Question 70

When is there a duty to warn?

Answer 70

Usually there isn’t unless an exception applies.

Exceptions - Special Relationship
1)

Question 71

What is negligent entrustment?

Answer 71

Where the D gives something to someone and the D should know the person is not capable of handling it.

Question 72

Is there a duty to protect from 3rd party criminal acts?

Answer 72

Usually no, unless special relationship
1) LL/T
2) Business/ Patron
PLUS
A high level of forseeability in order to find there is a duty. (Usually a prior similar  instance)

Question 73

What are the elements of negligent infliction of emotional distress?

Answer 73

1) P is within the “zone of danger.”

2) P suffers some PHYSICAL MANIFESTATION of the emotional distress.

Question 74

What are the elements for bystander recovery for NIED?

Answer 74

1) 3rd party is a CLOSE personal relative; and
2) 3rd party is present and suffers emotional distress due to wittiness event.

** Only under IIED does the D need to KNOW the 3rd party is there. **

Question 75

What is the liability for a land possessor?

Answer 75

1) Activities - the injury to plaintiff derived from the conduct of persons on the land.
2) Artificial conditions - injury derived from circumstances created by persons on the land (buildings, excavations, cultivation).
3) Natural conditions - injury derived from natural conditions.

Question 76

What is the duty to a trespasser, licensee and invitee?

Answer 76

1) Trespasser - unknown, no duty.
2) Licensee - friend, warn of KNOWN dangers (on land with consent but not held open to public or potential economic benefit)
3) Invitee - customer, inspect and make safe (open to public and potential economic benefit).

Question 77

Define Alternative Liability Doctrine (Joint Tortfeasors)

Answer 77

The jury may infer negligence if it finds 2 individuals liable when each is liable and EITHER individual could have caused the plaintiff’s injuries.

Question 78

Define Joint Enterprise Doctrine

Answer 78

A jury can find negligence on 1 defendant when 2 or more people embark on a project with a common purpose resulting in negligence. (1 must be a commercial seller for strict liability to apply).