Torts

Question 1

Negligence

Answer 1

A prima facie case of negligence requires a 1) duty of care, 2) a breach of that duty, 3) causation (actual and proximate), and damages.

–> Reasonable Person Standard

Question 2

Duty

Answer 2

A defendant owes a duty of care to all foreseeable victims of his activities.

–> Reasoanbly Prudent Person standard for actions, owed to those within the “ZONE OF DANGER”

-Rescuer’s Exception - if a rescuer is injured, even though unforeseeable, can still have a valid claim b/c the D created the harm.

Question 3

Special Standards of Care

Answer 3

Children - held to standard of ‘like child of similar age, education, intelligence, experience.

Innkeepers/Common Carriers - ‘utmost care’ standard (even slight negligence is actionable).

Custom or Industry Practice - a showing of a duty of care.

Professionals - ‘average care of a person in the profession’ standard.

Statutory - if 1) P within class meant to be protected, and 2) harm was within intended protection.

Question 4

Landowner Standard of Care

Answer 4

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Unknown Trespassers - NO DUTY

Anticipated Tresspassers - duty to warn for dangerous conditions, and reasonable care in activities.

Licensees - (social guests) reasonable care in activities, warn for KNOWN, DANGEROUS conditions.

Invitees - (commercial guests) reasonable care in activities, warn for KNOWN, DANGEROUS conditions, and DUTY TO INSPECT!!!

Attractive Nuisance - Owner is 1) aware of dangerous condition, 2) knows children are nearby, 3) likely to cause injury, and 4) risk outweighs expense to remedy.

Question 5

Breach

Answer 5

D breaches when his conduct falls short of the standard of care owed under the circumstances.

Res Ipsa Loquitor - if P cannot prove D breached, but nature of accident suggests negligence conduct. Must show EXCLUSIVE CONTROL of D.

Question 6

Causation

Answer 6

P must establish a causal connection between D’s actions and damages suffered by showing both actual and proximate cause.

Question 7

Actual Causation

Answer 7

But-For Test - But for D’s breach, P’s injury would not have occurred.

Substantial Factor - if multiple causes but any one alone would have caused the harm.

Burden-Shifting (if multiple Ds, if shown one of their negligent acts caused, but not sure which, burden shifts to Ds to prove they are not responsible.

Question 8

Proximate Causation

Answer 8

Foreseeability - D is liable for all foreseeable outcomes from his conduct.

Indirect/Intervening causes - if contributing acts occur between D’s action and P’s injury, D is still liable if injury COULD HAVE RESULTED without intervening act.

“EggShell Plaintiff Rule” - take your Plaintiff as you find him, liable for full extent of injuries.

Question 9

Damages

Answer 9

Can be PERSONAL, PROPERTY, or even PUNITIVE, but must be shown by P.

Punitive only allowed if wanton, willful, reckless, or malicious.

Question 10

Defenses to Negligence

Answer 10

Comparative Negligence - Modified = P can only recover if less than 50% at fault. PURE COMPARATIVE = can recover even if more than 50%.

Contributory Negligence - P is barred from recovery if D establishes that P’s OWN NEGLIGENCE contributed to her injuries.

Assumption of the Risk - D must show 1) P knew or should have known, and 2) P voluntarily proceeded in the face of the risk.

Question 11

Nuisance

Answer 11

Private Nuisance - substantial, unreasonable interference with another’s individual use or enjoyment of property (must be offensive, annoying, or inconvenient to AVG PERSON, and injuries outweigh utility).

Public Nuisance - unreasonable interference with health, safety, or property rights of COMMUNITY AT LARGE.

Question 12

Negligent Infliction of Emotional Distress

Answer 12

1) D created a foreseeable risk of causing severe emotional distress,
2) P was IN THE ZONE OF DANGER,
3) Causation,
4) Physical Manifestation of distress suffered.

Question 13

Intentional Infliction of Emotional Distress

Answer 13

1) OUTRAGEOUS CONDUCT by the D that was
2) INTENTIONAL OR RECKLESS,
3) Causation, and
4) Damages (can be emotional distress, does NOT req. physical manifestations).

Bystander Claims - if 1) close relative, 2) was present at time of injury, 3) observed injury, and 4) suffers emotional distress as a result (does NOT req. physical manifestations).

Question 14

Battery

Answer 14

1) HARMFUL or OFFENSIVE contact,
2) with the P’s PERSON,
3) Causation, and
4) Intent

Question 15

Assault

Answer 15

1) creation of a REASONABLE APPREHENSION,
2) of an IMMEDIATE HARMFUL or OFFENSIVE CONTACT, and
3) Causation, and
4) Intent

Question 16

False Imprisonment

Answer 16

1) act (or omission) resulting in RESTRAINT or CONFINEMENT,
2) to a BOUNDED AREA,
3) Causation, and
4) Intent

Shopkeeper’s Privilege - a store may detain a suspected shoplifter for REASONABLE CAUSE and for a LIMITED DURATION.

Question 17

Trespass

Answer 17

1) PHYSICAL INVASION of P’s real property by D,
2) Causation
3) Intent

Question 18

Trespass to Chattels/Conversion

Answer 18

1) Interference with right of possession in a tangible person property,
2) Causation,
3) Intent, and
4) Damages

Trespass = minor interference (cost of repair or rental)

Conversion = significant interference or harm (full market value is recoverable)

Question 19

Consent

Answer 19

Defense to ALL Intentional Torts:

Can be express or implied (based on custom or conduct), and

Scope of intent is important. If injury is outside of scope, D is still liable.

Question 20

Self-Defense/Defense of Others/Property

Answer 20

All types require:

1) REASONABLE BELIEF that D had regarding a tort to be committed,
2) PROPER TIMING (in progress or imminent),
3) REASONABLE FORCE proportionate to harm threatened.

Defense of Others: Step inside that person’s shoes

Defense of Property: Deadly force NOT ALLOWED. If intruder had privilege to enter land, not allowed.

Question 21

Necessity

Answer 21

If PUBLIC necessity, absolute defense (reasonably necessary to protect community).

If PRIVATE necessity, limited defense (to protect self or own property). P can recover actual damages only.

Question 22

False Light (FAID)

Answer 22

1) WIDESPREAD DISSEMINATION,
2) of a MATERIAL MISREPRESENTATION that is,
3) OBJECTIONABLE to a REASONABLE PERSON.
- -> If public concern, malice required.

Question 23

Appropriation (FAID)

Answer 23

a P’s UNAUTHORIZED USE of their name or likeness, for commercial purposes.

-Newsworthiness exception: can use in reporting news.

Question 24

Intrusion Upon Seclusion (FAID)

Answer 24

Invasion of a P’s PRIVATE AFFAIRS that is OBJECTIONABLE TO A REASONABLE PERSON.

-must have a reasonable expectation of privacy.

Question 25

Disclosure (FAID)

Answer 25

WIDESPREAD DISSEMINATION of CONFIDENTIAL INFORMATION.

Must be objectionable to a reasonable person and some form of publication.

Question 26

Defamation

Answer 26

1) A defamatory statement (fact based, look for inducement or innuendo),
2) ‘Of Or Concerning’ the Plaintiff (colloquium)
3) Publication to a Third Party, and
4) Damage to P’s Reputation

If a matter of public concern, must show:
5) Falsity and Fault (if P is a public figure, must show MALICE).

Question 27

Defamation Damages

Answer 27

Two Types of Defamation Damages:

Libel (written, broadcasted) - damages presumed.

Slander (spoken) - if PER SE, damages presumed, if not, must show a specific economic loss.

Slander Per Se:

• business or professional reputation
• loathsome disease
• crime of moral turpitude
• woman’s chastity

Question 28

Defamation Defenses

Answer 28

Consent - complete defense

Truth - complete defense

Privilege - ABSOLUTE if made by gov’t officials in official capacity. QUALIFIED if made to promote truthfulness of the speaker (cannot be with malice).

Question 29

Misrepresentation (ASIC JR D)

Answer 29

A fraud or deceit action, must have:

1) AFFIRMATIVE MISREPRESENTATION OF A MATERIAL FACT,
2) SCIENTER (knowledge of falsity),
3) INTENT to induce reliance,
4) CAUSATION (actual reliance),
5) JUSTIFIABLE RELIANCE, and
6) DAMAGES

Can also show Negligent Misrepresentation with same elements, less intent.

Question 30

Strict Liability

Answer 30

a D’s liability can be established without a showing of negligence in certain instances:

• Abnormally Dangerous Activity
• Animal Conduct
• Products Liability

Defenses: assumption of risk, comparative negligence

Question 31

Abnormally Dangerous Activity

Answer 31

An activity that:

1) involves a RISK OF SERIOUS HARM,
2) that cannot be performed without the risk, and
3) the conduct is UNCOMMON to the COMMUNITY.

The damages MUST RESULT from the abnormal activity to warrant strict liability.

Question 32

Animal Conduct

Answer 32

• Property damage from trespassing animals is strict liability for animal owner.
• Wild animals - if they cause injury, strict liability.
• Domestic animals - only strict liability if owner is AWARE OF DANGEROUS PROPENSITY.
• Trespassers cannot recover.

Question 33

Products Liability

Answer 33

1) D is a MERCHANT,
2) Product is DEFECTIVE,
3) Product is UNALTERED since leaving D’s control, and
4) P used the product in a FORESEEABLE MANNER.

Question 34

Types of Product Defects

Answer 34

MANUFACTURING DEFECT - product did not perform as expected.

DESIGN DEFECT - product could have been designed better (without undue cost).

INADEQUATE WARNING - manufacturer did not warn of a non-obvious risk of use or misuse.

Question 35

Implied Product Warranties

Answer 35

WARRANTY OF MERCHANTABILITY - goods are of average acceptable quality.

WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE - if merchant is aware of specific use, and buyer relies of seller’s skill/judgment, must be fit for specific use.

Question 36

Vicarious Liability

Answer 36

RESPONDEAT SUPERIOR - employers are liable for torts committed by employees within the scope of employment.

Other types:

• Independent Contractor (no liability unless inherently dangerous)
• Partnerships
• Parent/Child
• Tavernkeeper
• Bartender/Patron (liable only if Dramshop Statute in place

Question 37

Joint and Several Liability

Answer 37

Arises if the acts of two or more D’s combine to produce a single injury. If the injury is divisible, each liable for their share, otherwise jointly liable.