Torts

Question 1

Assault (mental invasion)

Answer 1

Elements: Intentional, overt act, causing reasonable fear or apprehension, of immediate harmful or offensive contact

Damages: Nominal, compensatory, and special

Question 2

Battery (bodily invasion)

Answer 2

Elements: An intentional act causing a harmful or offensive contact

Damages: Damages: Nominal, compensatory, special, and punitive

Question 3

Emotional Distress

Answer 3

Elements: Extreme and outrageous, intentional OR reckless conduct, causing sever emotional distress.

Damages: Actual, need not be physical

Question 4

False imprisonment

Answer 4

Elements: An intentional act or omission that causes confinement or restraint. Note: not false imp if there is a reasonable means of escape–cant be embarrassing or req you to leave property behind

Damages: Nominal, substantial not required

Question 5

Trespass to Land

Answer 5

Elements: Intentional physical invasion of P’s real property, causation

Damages: Nominal sufficient

Question 6

Trespass to Chattel

Answer 6

Elements: Intentional act interfering with Ps right of possession, causation.

Damages: actual damages, actual harm done to chattel

Question 7

Conversion

Answer 7

Elements: Intentional act interfering with Ps right of possession serious enough to warrant payment of full values, causation.

Damages: Actual damages, full replacement value.

Note: if you would prefer the chattel back you can opt for trespass to chattel

Question 8

Transferred Intent

Answer 8

only applies to 5: BAIT–Battery, Assault, false Imprisonment, Trespass to land/chattel

Question 9

Nuisance

Answer 9

Public Nuisance–an act that unreasonably interferes with the health and safety or property rights of the community

Private Nuisance–is a substantial, unreasonable interference w/ another private individuals use or enjoyment of their property

Question 10

Nuisance Defenses

Answer 10

• Zoning (not complete but factor)
• Conduct of others
• Contributory Neg–generally not a def unless P’s cases rests on a neg theory
• Coming to the nuisance–by purchasing a land next to an existing nuisance and then bringing action. Not generally a bar to P’s action unless he came to the nuisance solely to bring a harassing suit. Factor to be considered re whether P will be granted injunction.

Question 11

7 defenses to intentional interference w/ person/property

Answer 11

1) Consent–only valid if D stays w/in bounds of consent given
2) Self-Defense–valid when person has reasonable grounds to believe that they are currently or about to be attacked. Force must be reasonable.
3) Defense of others–only valid when person could have used force to protect themselves
4) Def of Property–may use reasonable force to prevent a tort against their property (deadly never ok)
5) Discipline
6) Privilege of Arrest
7) Necessity

Question 12

Use of deadly force

Answer 12

• Substantial Maj (MBE)–deadly force valid def when necessary to prevent serious bodily harm/death to himself (others).
• Growing minority (NY)–imposes duty to retreat before using deadly force when this can be done safely UNLESS person in home “castle doctrine.”

Question 13

Negligence

Answer 13

1) Duty owed to P (proper P? what is SoC?
- zone of danger approach (Maj/NY)–duty must be actually breached to P–ie was P a forseeable victim?
- Andrews approach (Min)–breach does not have to actually run to P but P needs to causally connect harm to breach. you need to show a breach to anyone and then connect harm to that breach.
2) Breach of duty by D
3) Damages (injury to person/property)
4) Causation of injury due to breach

Question 14

Neg Infliction of Emotional Distress

Answer 14

P witnesses an injury to a 3rd party and is harmed.

• must be close family members
• NY/Cardozo–both P and injured person need to be in the zone of danger

Question 15

Standard of Care

Answer 15

Created 3 ways 1) statutes, 2) relationship 3) reasonable care

Question 16

Negligence–Strict L

Answer 16

Statute establishes a duty and violation = breach. D is absolutely L if her breach caused the injury (dram shop).

Question 17

Negligence Per Se

Answer 17

Statute est a duty and a violation is a breach to the protected class. D can argue lack of injury, causation, or other defenses

Question 18

Evidence of Negligenc

Answer 18

Statute establishes a duty and a violation is only evidence of negligence. D can argue that she did not breach a duty, that there is no injury, causation. There are no defenses.

Question 19

SoC–Relationships

Answer 19

Note: Need to show “justifiable reliance”

1) by K
2) Professional Standard–look at other members of profession
3) Creation of Peril (D neg = duty to v and neg for rescuers acts(not gross neg)/D not neg = duty to v but not resp for rescuers acts)
4) Control of others
5) Family Relationship
6) Employer/Employee
7) Duty of Landowner

Question 20

Duty of Landowner

Answer 20

MBE:

• Invitees–ppl entering the property on business concerning the O and on her invitation. Duty to inspect and warn re natural and artificial conditions. Duty to act as a reasonable landowner.
• Licensee–ppl entering w/ permission, not for benefit of O. No duty to inspect, duty to warn. Applies to artificial and natural conditions.
• Trespasser–no duty owed to undiscovered trespasser. To discovered, duty of ordinary care to warn of artificial hidden conditions that pose danger of serious bodily injury or death.

NY: has done away w/ CL distinctions. Use standard of reasonable care–statue of P not relevant. HOWEVER NY will look to status to determine what is foreseeable and what the SoC should be.

Question 21

Attractive Nuisance

Answer 21

L for child trespassers if O knew of artificial and dangerous conditions on land that could forseeably attract children AND cost to fix problem was way below magnitude of potential harm. Child’s neg no def.

NY: does not recogonize

Question 22

Innkeepers

Answer 22

req to exercise very high degree of care towards guests. L for slight neg + any failure to protect patrons.

Question 23

Common Carrier

Answer 23

under duty to use high degree of reasonable care to assist patrons

NY: rule is reasonable care under circumstances

Question 24

Gov Actors

Answer 24

When claim is gov negligently exercised gov function P must show special relationship between gov and P

Question 25

Reasonable Care

Answer 25

Default SoC if statute is silent. Children must conform to reasonable child of similar age, intelligence, education and experience UNLESS engaged in adult activity

Question 26

Res Ipsa Loquitur

Answer 26

where an injury would not have occured w/o neg, and D was in exclusive control of the instrumentality that caused the injury, Res Ipsa creates the inference that D was guilty

-Essentially IDs D where you know there must have been neg

Question 27

Causation

Answer 27

Need Factual + Legal Causation

Factual harm happens two ways–direct and indirect. Use “but for test.” If indirect you need to ask if D is a “substantial factor” in bringing about harm (not “but for”).

Question 28

Defenses to Neg

Answer 28

Need to determine jurisdiction–contributory or comparative

• Contributory–if P contributes to her injuries, she is barred from recovery
• Comparative–Pure Comparative (NY/MBE) says if P is neg her recovery is reduced by that percentage. Some states modify and prevent recovery if P is over 50% neg.

Question 29

Assumption of Risk

Answer 29

In contributory neg juris complete bar to recovery. In Comparative neg it is a factor.

Express Assumption of the risk–emerging might provide complete bar to recovery even in comparative juris if someone assumes risk of a sport.

Question 30

Contribution

Answer 30

When joint/several tort L found P may recover entire amount for any tortfeasor. Contribution allows any tortfeasor who has contributed more than his share to recover from other tortfeasors.

• N/A for intentional torts
• Methods of apportionment. 1) MAJ–comparative contribution–contribution imposed in proportion to tortfeasors fault (NY). 2)Minority–equal shares–all tortfeasors must pay equal shares regardless of their relative fault

Question 31

Indemnity

Answer 31

involves shifting the entire loss between and among tortfeasors–is a total shift from D to someone else. Only avail in 3 circumstances:

1) K agreements
2) Vicarious L/by operation of law–when L is based simply b/c of the relationship to the tortfeasor, one may seek indemnification from the person whose conduct actually cased the damage.
3) Strict Products L–each supplier has a right of indemnification against all previous suppliers in the distribution chain w/ the manufacturer being ultimately L if the product was defective when the product left its hands.

Question 32

Dram Shop

Answer 32

MBE majority–there is a duty to cut off a visibly intoxicated person. The O will be responsible to drunk and injured 3rd party.

Minority dram shop–only L to 3rd party