Torts

Question 1

Intent (2)

Answer 1

(1) Specific: purpose in acting is to bring about specific consequences
(2) General: actor knows with substantial certainty that these consequences will result

Question 2

Torts that transferred intent applies to (5)

Answer 2

(1) Assault
(2) Battery
(3) False imprisonment
(4) Trespass to land
(5) Trespass to chattels

Question 3

Battery (4)

Answer 3

(1) Harmful or offensive contact
(2) To P’s person
(3) Intent
(4) Causation

Question 4

Assault (4)

Answer 4

(1) Act by D creating a reasonable apprehension in P (words alone are not sufficient)
(2) Of immediate harmful or offensive contact to P’s person
(3) Intent
(4) Causation

Question 5

False Imprisonment (3)

Answer 5

(1) Act or omission on the part of D that confines or restrains P to a bounded area
(2) Intent
(3) Causation

Question 6

Intentional Infliction of Emotional Distress (4)

Answer 6

(1) Act by D amounting to extreme and outrageous conduct
(2) Intent or recklessness
(3) Causation (in bystander cases, requires (i) presence; (ii) close relative of injured person; (iii) D knew (i) & (ii)
(4) Damages (severe emotional distress)

Question 7

Trespass to Land (3)

Answer 7

(1) Physical invasion of P’s real property
(2) Intent
(3) Causation

Question 8

Trespass to Chattels (4)

Answer 8

(1) Act by D that interferes w/ P’s right of possession in chattel
(2) Intent
(3) Causation
(4) Damages

Question 9

Conversion (4)

Answer 9

(1) Act by D that interferes w/ P’s right of possession in chattel
(2) Interference is so serious that it warrants requiring D to pay chattel’s full value
(3) Intent
(4) Causation

Question 10

Defenses to Intentional Torts (5)

Answer 10

(1) Consent
(2) Self-defense; Defense of others; Defense of property
(3) Privilege of arrest
(4) Necessity (public and private)
(5) Discipline (parents or teachers)

Question 11

Defamation (6)

Answer 11

(1) Defamatory language
(2) Of or concerning the P
(3) Publication by D to a 3d person (communication of defamation to 3d person who understands it)
(4) Damage to P’s reputation (libel does not require proof of damages; slander does require proof of special damages (unless slander per se (adversely reflects on someone’s conduct in business or profession; loathsome disease; guilty of crime involving moral turpitude; or woman is unchaste))).
(5) Falsity of the defamatory language
(6) Fault on part of D (public figure -> actual malice (knowledge or reckless disregard of falsity); private person & matter of public concern -> negligence).

Question 12

Defenses to Defamation (4)

Answer 12

(1) Consent
(2) Truth
(3) Absolute privilege (judicial proceedings; remarks made by legislators in legislative proceedings; between spouses, etc.)
(4) Qualified privilege

Question 13

Invasion of Right to Privacy (four torts)

Answer 13

(1) Appropriation of P’s Picture or Name (unauthorized use of P’s picture or name for D’s commercial advantage
(2) Intrusion on P’s Affairs or Seclusion (prying or intruding into P’s privacy that is highly offensive to a reasonable person)
(3) Publication of Facts Placing P in False Light (attributing to P views he does not hold or actions he did not take; must be highly offensive to a reasonable person; must be publicity)
(4) Public Disclosure of Private Facts About P (Public disclosure must be highly offensive to reasonable person of ordinary liabilities)

+ Causation

Question 14

Intentional Misrepresentation (6)

Answer 14

(1) Misrepresentation of a material past or present fact
(2) Scienter (D knew or believed statement was false or there was no basis for it when she made it)
(3) Intent to induce P to act or refrain from acting in reliance on the misrepresentation
(4) Causation (actual reliance)
(5) Justifiable reliance
(6) Damages

Question 15

Negligent Misrepresentation (5)

Answer 15

(1) Misrepresentation by D in a business or professional capacity
(2) Breach of duty toward a particular P
(3) Causation
(4) Justifiable reliance
(5) Damages

Question 16

Interference with Business Relations (4)

Answer 16

(1) Existence of a valid contractual relationship between P and 3d party or valid business expectancy of P
(2) D’s knowledge of the relationship or expectancy
(3) Intentional interference by D inducing a breach or termination of the relationship or expectancy
(4) Damages

Question 17

Prima Facie Case for Negligence (4)

Answer 17

(1) A duty on the part of D to conform to a specific standard of conduct for protection of P against unreasonable risk of injury
(2) A breach of that duty by D
(3) Breach is actual and proximate cause of P’s injury
(4) Damages

Question 18

Duty of Care

Answer 18

A duty of care is owed to all foreseeable Ps. If the D’s conduct creates an unreasonable risk of injury to persons in the position of the P, the general duty of care extends from the D to the P. The extent of the duty is determined by the applicable standard of care.

Question 19

Basic Standard of Care

Answer 19

Objective standard of what the average person would do. Mental deficiencies and inexperiences of D not taken into account but physical characteristics are.

Question 20

Professional Standard of Care

Answer 20

The knowledge and skill of a member of the profession or occupation in good standing in similar communities. (But medical specialists are held to a national standard of care.)

Question 21

Children Standard of Care

Answer 21

Held to standard of a child of like age, education, intelligence, and experience.

Question 22

Emergency Situation Standard of Care

Answer 22

D must act as a reasonable person would under the same emergency conditions.

Question 23

Duty of possessor of land to those on premises (4)

Answer 23

(1) Undiscovered trespasser –> no duty
(2) Discovered/anticipated trespasser –> (a) warn of or make safe concealed, unsafe, artificial conditions known to landowner involving risk of death or serious bodily harm and (b) use reasonable care in the exercise of active operations on the property
(3) Licensess –> (a) warn of or make safe dangerous conditions known to the owner that create unreasonable risk of harm to licensee that licensee is unlikely to discovery (b) exercise reasonable care in conduct of active operations
(4) Invitees –> Same duties as licensees + duty to make reasonable inspections to discover nonobvious dangerous conditions and make them safe.

Question 24

Duty of Lessee

Answer 24

General duty to maintain the premises

Question 25

Duty of Lessor

Answer 25

Must warn of existing defects of which he is aware or has reason to know and which the lessee is not likely to discover through a reasonable inspection.

Question 26

Statutory Standards of Care

Answer 26

A clearly stated specific duty imposed by a statute providing for criminal penalties (incl. fines) may replace more general common law duty of care if (1) P is within the protected class and (2) the statute was designed to prevent the type of harm suffered by P

Question 27

Negligent Infliction of Emotional Distress

Answer 27

Generally: (1) P must be w/i zone of danger (2) P must suffer physical symptoms
Exceptions: P can be outside zone of danger and recover as long as (1) P and person injured are closely related; (2) P was present at scene of injury; (3) P personally observed or perceived the event

Question 28

Affirmative duties to act (4)

Answer 28

(1) Assumption of duty by acting
(2) Peril due to D’s conduct
(3) Special relationship between parties
(4) Duty to prevent harm from 3d persons

Question 29

Breach of Duty

Answer 29

Where D’s conduct falls short of level required by applicable standard of care owed to P, she has breached her duty. Whether there is breach is question for trier of fact.

Question 30

Res Ipsa Loquitur

Answer 30

(1) accident causing the injury is a type that would not normally occur unless someone was negligent and (2) negligence is attributable to D.

Question 31

Actual Cause (3)

Answer 31

(1) But for test
(2) Joint causes (multiple causes and any one alone would have been enough to cause injury) – substantial factor test
(3) Alternative causes (two acts, only one causes injury, unclear which it was) – burden of proof shifts to Ds and each must show his negligence is not actual cause

Question 32

Proximate Cause (4)

Answer 32

(1) General rule: Foreseeability test
(2) Direct cause cases –> D liable for all foreseeable harmful results, but not for unforeseeable harmful results
(3) Indirect Cause cases –> (a) foreseeable results caused by foreseeable intervening forces: D liable; (b) foreseeable results caused by unforeseeable intervening forces: D usually liable; (c) unforeseeable result caused by foreseeable intervening force: D not liable; (e) unforeseeable results and force: D not liable.
(4) Unforeseeable extent or severity of harm –> D liable (eggshell P)

Question 33

Last Clear Chance Rule

Answer 33

A P can recover even if contributorily negligent against the person with the last clear chance to avoid an accident who failed to do so.

Question 34

Defenses to Negligence (3)

Answer 34

(1) Contributory Negligence
(2) Assumption of Risk (knowledge + voluntary assumption)
(3) Comparative Negligence

Question 35

Prima Facie Case for Strict Liability (3)

Answer 35

(1) Nature of D’s activity imposed absolute duty to make safe
(2) Dangerous aspect of activity was actual and proximate cause of P’s injury
(3) Damages

Question 36

Manufacturing Defect

Answer 36

Product merges from mfg different from and more dangerous than if it were made properly. P must show product failed to perform safely as an ordinary consumer would expect.

Question 37

Design Defects

Answer 37

All products of a line are the same but have dangerous propensities. Plaintiff must show D could have made product safer without serious impact on product’s price or utility (“feasible alternative” approach).

Question 38

Alternative liability approach

Answer 38

Shifts burden to Ds when they are all negligent but D can’t show which one caused injury.