Torts

Question 1

Shopkeeper’s Privilege

Answer 1

If a shopkeeper reasonably believed that a theft has occurred, he is privileged to make a detention in a reasonable manner for a reasonable period of time.

Anyone charged with protecting the shop - security, employee, etc.

Question 2

Intentional infliction of emotional distress - THIRD PARTY RECOVERY

Answer 2

1. P must be present
2. P was a close relative to the injured person
3. D knew or should have known the presence of the P
   AND
4. Actual damages are required

Question 3

Trespass to chattels

Answer 3

D interferes w another’s LAWFUL possession of a chattel (movable personal property)

Interference can be ANY physical contact w the chattel in a quantifiable way or any dispossession.

Question 4

Intentional entries into land

Answer 4

Damage to land not required

Question 5

Unintentional entries into land

Answer 5

Not liable for trespass for negligent or reckless entries UNLESS he causes damage to the land

Question 6

Conversion

Answer 6

More serious than trespass to chattels

Look at value of the damage.
“Value of the _______” -> full amount -> conversion

Question 7

Duty - what

Answer 7

Legal requirement to act as an ordinary, prudent reasonable person taking precaution against unreasonable risks of injury to others.

Question 8

Duty - to whom

Answer 8

To ALL foreseeable plaintiffs

In the zone of danger

Question 9

Duties of care - trespasser

Answer 9

Unknown person - No duty

Known trespasser - duty to warn of known dangers

Question 10

Duties of care - licensee

Answer 10

Friend

Warn of known dangers

Question 11

Duties of care - invitee

Answer 11

Customer

1. Inspect
2. Make safe

Open for business - someone doesn’t need to buy something to be invitee

Question 12

Res ipsa loquitur

Answer 12

Elements:
1. The accident does not normally occur absent negligence on the part of the D
AND
2. The instrumentality causing the accident was within the D’s exclusive control

Question 13

Last clear chance rule

Answer 13

A negligent plaintiff can still recover if he can show the D had the last clear chance to avoid the injury and failed to do so

In CONTRIBUTORY NEGLIGENCE ONLY

Question 14

Contributory negligence

Answer 14

Negligent P is barred from recovery.

Minority rule.

Last clear chance rule is under this ONLY.
Fact pattern will state it’s a contributory negligence jdx - only use then.

Question 15

Comparative negligence

Answer 15

Majority

Negligent P’s recovery will be reduced by his percentage of his own negligence.

Pure - can recover even if P’s negligence exceeds D’s. Use for the bar.

Modified - recovery only if P’s negligence is less than D’s.

MBE rule - PURE
NO last clear chance doctrine

Question 16

Joint tortfeasors

Answer 16

Where the combined negligent acts of two or more tortfeasors cause an INDIVISIBLE injury (incapable of apportionment), EACH ONE of jointly and severally liable.

Unless - one shows that they for sure didn’t do it. Then it’s capable of apportionment.

Question 17

Release

Answer 17

When a tortfeasors makes a pre trial agreement to pay her share of damages awarded to the P, such settlements usually precede the court’s determination of each tortfeasor’s relative liability.

The settling D’s percentage of fault is deducted from the damages awarded the P regardless of the actual payment made by the settling D

Question 18

Foreseeable intervening causes

Answer 18

Examples:
Negligent rescue
Subsequent medical malpractice 
Subsequent disease
Subsequent accident
General negligence

If foreseeable -> D remains liable

Question 19

Unforeseeable/superseding causes

Answer 19

Examples:
Acts of God (lightning, floods)
Intentional torts of third parties
Intentional crimes of third parties

If Unforeseeable -> D not liable (superseding)

Question 20

Abnormally dangerous activities

Answer 20

Subject to strict liability

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 the particular activity is not generally performed in that particular physical area

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

Question 21

Wild animals

Answer 21

Owner is strictly liable to persons injured by the animal

Injury doesn’t need to be direct - can be injury from trying to run away from wild animal that is “harmless”

Question 22

Strict products liability

Answer 22

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.

Question 23

Defenses to strict liability

Answer 23

Assumption of the risk
Adequate warning
Product misuse

Question 24

Products liability defendants

Answer 24

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

Must be a commercial seller of such products

Everyone in the chain of production - ford dealer, ford manufacturer, etc.

Don’t need to be privy to the contract to recover - just need to be a user (reasonable - like a spouse)

Question 25

Misrepresentation

Answer 25

Elements:
False statement
Scienter (guilty knowledge - could be reckless)
Intent to induce P to act
Justifiable reliance
Damages

Question 26

Private nuisance

Answer 26

Disturbance that creates a substantial and unreasonable interference with the use and enjoyment of one’s property

If hyper sensitive P, then no.
Whoever was there first doesn’t matter

Question 27

Defamation

Answer 27

Elements:
Defamatory (statement of fact, not opinion)

Publication (to any 3rd party who reasonably understands)

Damages (general damages presumed, special damages required - except libel and slander per se)

Question 28

Defamation - P’s standard of proof

Answer 28

Public official, public figure -> malice (or recklessness)

Private person:
Matter of public concern -> negligence
Matter of private concern -> publication only

Question 29

Slander per se

Answer 29

Defamatory statement imputes:

• loathsome disease
• unchastity to a woman
• Improper conduct in one’s trade, business or profession
• false accusation of a crime

Question 30

Invasion of right to privacy

Answer 30

Elements:
Appropriation (use of someone's likeness for your own commercial advantage)
False light
Intrusion upon seclusion
Public disclosure of private facts

Question 31

Public street and right to privacy

Answer 31

There isn’t an expectation of privacy on public street

Question 32

Newspaper’s right to publish pictures

Answer 32

So long as it’s newsworthy, generally ok.

It’s ok that it’s in a commercial context, and don’t need permission if you’re in public when they take your picture.

Question 33

Private P sues private D for defamation regarding a matter of purely private concern, the P needs to show:

Answer 33

Only negligence with regard to the truth or falsity of the statement.

Question 34

Does slander per se require a showing of actual pecuniary loss as a precursor to any recovery?

Answer 34

NOPE. Can recover both actual and presumed damages.

Question 35

When can a person NOT using a defective product invoke strict liability against an appropriate defendant?

Answer 35

When it was reasonably foreseeable that such plaintiff might by injured by the defective product.

Examples: bystanders, rescuers.