Torts

Question 1

Vicarious Liability - Generally

Answer 1

Employers are vicariously liable for the negligence of their employees committed while the servants are acting within the scope of their employment.

An employee may commit a tort while deviating from the employer’s business to run a personal errand. If the deviation was minor in time and geographic area, the employee will still be considered to be acting within the scope of employment rather than on a “frolic” of his own, for which the employer would not be liable.

if the employee causes its employer to be vicariously liable, that does not relieve the employee of liability absent a special state statute. Under the common law, they are also liable to the plaintiff.

Question 2

Vicarious Liability - Intentional Torts

Answer 2

Employers are generally not liable for an employee’s intentional tort, because intentional tortious conduct is not within the scope of employment, unless force is authorized in the employment, friction is generated by the employment, or the employee is furthering the business of the employer.

Question 3

Vicarious Liability - Negligence of Independent Contractors

Answer 3

A principal is vicariously liable for the negligence of their independent contractor in two situations:

1. the independent contractor is engaged in inherently dangerous activities; or
2. the duty is nondelegable—such as the duty of a business to keep its premises safe, the duty of an owner of property to keep it from being dangerous to those offsite, or the duty of an owner of a vehicle to keep the parts of the vehicle operating safely.

Question 4

Intent - Generally

Answer 4

Intentional torts require the intent to do the act that constitutes the tort, not the intent to cause the particular harm.

E.g., the intent required for battery is the intent to cause the offensive or harmful contact, not the intent to cause the bleeding that results from throwing the rock at plaintiff.

Question 5

Assault - Rule

Answer 5

Assault requires:

1. a volitional act
2. done with the intent to cause either:a. harmful or offensive contact or
   b. an apprehension of imminent harmful or offensive contact that
3. causes
4. the reasonable apprehension of harmful or offensive contact.

Question 6

Battery - Rule

Answer 6

Battery requires:

1. a volitional act
2. done with the intent to cause either:a. harmful or offensive contact or
   b. an apprehension of imminent harmful or offensive contact that
3. causes
4. harmful or offensive contact.

Offensive contact is an objective test—what would society regard as offensive. Harmful contact is even the slightest physical change in condition.

Question 7

False Imprisonment - Rule

Answer 7

False Imprisonment requires:

1. an act intending to confine someone within boundaries fixed by the actor,
2. directly or indirectly resulting in such confinement, and
3. the confined person is either conscious of the confinement, or is harmed by it.

Confinement includes denial of the means to leave the particular boundaries set by the defendant, as well as threats of immediate force.

Question 8

False Imprisonment - Shopkeepers Privilege

Answer 8

Occurs when a shopkeeper or store security holds plaintiff. Defendant can claim the privilege if:

1. they have reasonable grounds to believe a theft has occurred;
2. they hold plaintiff for a reasonable time to ascertain the facts;
3. in a reasonable manner.

Question 9

False Imprisonment - Crime Prevention

Answer 9

Private persons may arrest someone if they have a reasonable belief that a crime has occurred that involves breach of the peace.

Question 10

Trespass to Chattels - Rule

Answer 10

Trespass to chattels requires:

1. An act which is an intermeddling or dispossession
2. of the personal property
3. of another
4. which causes harm to, or the loss of use of, the personal property.

Question 11

Conversion - Rule

Answer 11

Conversion requires:

1. An act which is an intermeddling or dispossession
2. of the personal property
3. of another
4. which causes an interference with plaintiff’s right of possession serious enough to warrant that defendant pays the full value of the chattel.

Question 12

Intentional Infliction of Emotional Distress - Rule

Answer 12

Intentional infliction of emotional distress requires:

1. An intent to cause severe emotional distress; and
2. extreme and outrageous conduct that
3. causes severe emotional distress.

There is no requirement that plaintiff show physical harm from the emotional distress, UNLIKE a claim for negligent infliction of emotional distress.

Question 13

Abuse of Process - Rule

Answer 13

Abuse of process involves:

1. using a legitimate process, such as filing a complaint, service, discovery, etc.,
2. for a wrongful purpose and
3. an act or threat against the plaintiff to accomplish the wrongful purpose.

Question 14

Malicious Prosecution - Rule

Answer 14

Malicious prosecution is:

1. the initiation of civil or criminal proceedings
2. without probable cause,
3. for a wrongful purpose, and
4. the favorable termination of the proceedings on the merits.

Question 15

Negligence - Rule

Answer 15

Negligence requires:

1. duty,
2. breach,
3. actual cause,
4. proximate cause, and
5. harm

Question 16

Negligence - Duty

Answer 16

Defendant is required to act as a reasonable person would under the circumstances.

E.g. “Defendant had a duty to drive his vehicle in a reasonable manner in order to avoid injuring other drivers, pedestrians, or property.”

Question 17

Negligence - Breach

Answer 17

A breach occurs when the defendant fails to meet the requisite standard of care (his duty).

E.g. “Defendant breached his duty to drive his vehicle reasonably when he drove 30 mph over the speed limit.”

Question 18

Negligence - Per Se

Answer 18

If there is a violation of a criminal statute, after discussing ordinary duty and breach you consider statutory duty and breach—negligence per se.

For a violation of a statute by a defendant to have any legal effect:

1. the statute or ordinance must be a criminal statute;
2. the plaintiff must be a member of the class of persons intended to be protected by the statute; and
3. the claimed harm must be the type of harm intended to be protected against by the statute.

A finding of negligence per se results in the conclusive presumption of breach and duty in a majority of states—but it is not a separate cause of action. It is only an alternative type of duty—a statutory duty.

Question 19

Negligence - Exam Approach

Answer 19

1. Duty
2. Breach
3. Negligence Per Se (if applicable)
4. Actual Cause
5. Proximate Cause
6. Harm

Question 20

Negligence - Owners/Possessors of Land

Answer 20

Generally, a landowner owes no duty to protect someone outside the premises from either natural or artificial conditions on the land.

With respect to artificial conditions, however, there are two major exceptions:

1. a duty to protect from unreasonably dangerous artificial conditions abutting adjacent land; and
2. a duty to take due precautions to protect persons passing by from dangerous conditions.

Question 21

Negligence - Invitee vs. Licensee

Answer 21

An invitee is on the premises for the business purpose of the owner or possessor.

A licensee is on the premises for their own purpose, such as a social guest.

Question 22

Negligence - Duty to Invitees

Answer 22

The possessor or owner holds a duty to an invitee to inspect, discover, and repair or protect against harm if, and only if, he:

1. knows, or by the exercise of reasonable care, should have discovered, the condition and should realize that it poses an unreasonable risk of harm to invitees; and
2. should expect that the invitees will not discover or realize the danger, or will fail to protect themselves against it; and
3. fails to exercise reasonable care to protect them against the danger.

Question 23

Negligence - Duty to Licensees

Answer 23

The possessor or owner holds a duty to a licensee to repair and protect against known dangers if, and only if, he:

1. knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to the licensees, and should expect that the licensees will not discover or realize the danger; and
2. fails to exercise reasonable care to make the condition safe or to warn the licensees of the condition and the risk involved; and
3. the licensees do not know or have reason to know of the condition or the risk involved.

Question 24

Negligence - Duty to Trespassers

Answer 24

The duty toward known trespassers only extends to artificial dangerous conditions, and is only a duty to adequately warn.

If the landowner or possessor knows that a limited part of the land is constantly traversed by trespassers, the landowner or possessor will be liable to those trespassers for bodily harm if:

1. the artificial condition is one the possessor created or maintains;
2. it is likely to cause death or serious bodily harm;
3. is not likely to be discovered by the trespassers;
4. and the possessor has failed to exercise reasonable care to warn trespassers of the condition and the risk involved.

Question 25

Negligence - Attractive Nuisance

Answer 25

To assess a duty under the attractive nuisance doctrine, plaintiff must show:

1. there is a dangerous condition present on the land of which the owner is or should be aware;
2. the owner knows that young persons frequent the vicinity of the dangerous condition;
3. the condition is likely to cause injury because of the child’s inability to appreciate the risk; and
4. the expense of remedying the situation is slight compared with the magnitude of the risk.

Question 26

Actual Cause - Rule

Answer 26

Actual cause is simply, the “but for” test.

Exception: if there are true concurrent causes and either alone is sufficient as a cause (even if the negligence of one did not occur, the harm would still have occurred), in which case you use the “substantial factor” test.

Question 27

Proximate Cause - Rule

Answer 27

Generally, proximate cause is handled as whether the type of harm was foreseeable from this type of conduct.

E.g. “It is foreseeable that when a driver drives 30 mph over the speed limit, an accident may result.”

Sometimes the proximate cause issue will arise in terms of damages: purely economic damages (lost profits, etc.) are denied in the absence of injury to person or property.

Question 28

Harm - Rule

Answer 28

The element is the nature of the harm, not damages, which are a measure of the harm.

E.g. Plaintiff was injured because plaintiff suffered a broken leg.

Question 29

Negligence - Contributory and Comparative Negligence

Answer 29

Contributory negligence of the plaintiff is a defense and a complete bar to recovery.

 - A plaintiff may invoke the last clear chance doctrine to avoid a finding of contributory negligence. 
 - In the case of the “inattentive plaintiff,” the plaintiff could have discovered his situation and avoided the harm, but the defendant still has the last opportunity to avoid the harm, knows of the harm, and realizes or should realize it, and fails to do anything about it. 

Pure comparative fault reduces the recovery by the percentage attributable to plaintiff’s fault. Non-pure comparative fault bars recovery if plaintiff’s fault exceeds 50%. The bar almost never tests non-pure comparative fault, so it is enough to just discuss pure comparative fault.

Question 30

Negligence - Assumption of Risk

Answer 30

Plaintiff is denied recovery if he knows of the risk and voluntarily assumes it. Merely venturing into traffic or driving a car is not an assumption of the risk—the particular risk must be apprehended and understood, not a generalized risk of harm.

Certain risks are not assumed: the risk of traveling on a common carrier; where a statute protects a class; fraud, force, or emergency.

Question 31

Negligence - Emergency

Answer 31

Analytically, this is an issue of the standard of care, and thus duty, but a number of states characterize it as a defense. So long as defendant did not create the emergency, the duty is to act as a reasonable person would under the same emergency.

Question 32

Public Nuisance - Rule

Answer 32

Public nuisance interferes in a common public interest: public health; public safety; public convenience; public comfort; or public peace; or it involves the violation of a statute, ordinance or regulation (often involving common public safety or health—such as anti-pollution statutes).

Because of the common public interest that is interfered with, public agencies are generally more likely to bring actions to enjoin a public nuisance. A private person can generally only bring an action for public nuisance where the private party suffers harm that is different in kind from the harm suffered by members of the public in general.

Question 33

Private Nuisance - Rule

Answer 33

The elements of a private nuisance are:

1. an unreasonable invasion of another’s interest in the use or enjoyment of his land;
2. and the invasion is either (a) intentional; or (b) unintentional and otherwise actionable as negligence, recklessness, or an abnormally dangerous condition or activity.

If the invasion is intentional and unreasonable, the court will not balance the harms in considering an injunction.

Question 34

Trespass - Rule

Answer 34

Trespass is the entry onto or remaining upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise.

Mistake is not a defense to trespass. In most jurisdictions, and for the purposes of the MBE, trespass does not require proof of harm, although in such cases, only nominal damages may be awarded absent a threat of repeated trespass. A common remedy for trespass and nuisance is an injunction.

Question 35

Strict Liability - Animals

Answer 35

Owners and possessors of livestock and wild animals are strictly liable for the harm caused by the animals, including both property damages and personal injury.

Thus, a plaintiff in a strict liability case must show that: (1) Defendant owned (2) a wild animal (3) that caused harm to plaintiff of a kind caused by the wildness of the animal.

Public zookeepers are only liable for negligence, however.

The traditional rule is that an owner of a domestic animal is strictly liable for the harm done by the animal only if the owner knows, or has reason to know, of the animal’s vicious tendencies—which is thus an issue of duty and thus really a negligence concept. A number of states now impose strict liability for the harm done even by domestic animals.

Question 36

Strict Liability - Rule

Answer 36

Strict liability describes liability without fault for harm proximately caused by certain categories of conduct.

Question 37

Strict Liability - Abnormally Dangerous Activities

Answer 37

The elements of strict liability, as applied to abnormally dangerous activities, are:

1. carrying on of an abnormally dangerous activity,
2. which causes harm,
3. the risk of which makes the activity abnormally dangerous.

In discussing the first element, define what constitutes an abnormally dangerous activity using the Restatement factors. The case law suggests that the most important are: (1) the high degree of risk of harm, (2) the gravity of the harm, and (3) the inability to eliminate the risk by using reasonable care.

Question 38

Products Liability - Exam Approach

Answer 38

There are three distinct significant legal theories of liability:

1. Strict products liability,
2. Negligence, and
3. Breach of warranty

The liability applies, or may apply, to everyone in the vertical chain of distribution of the product.

Question 39

Strict Liability in Tort - Rule

Answer 39

Strict liability in tort requires:

1. Defendant is in the business of selling or otherwise distributing products;
2. Defendant sells or distributes a defective product (places it in the “stream of commerce”) that remains unchanged when it gets to the consumer;
3. The defect causes harm to a foreseeable person.

The first element includes manufacturers, wholesalers, retailers, distributors—all commercial entities in the vertical chain of distribution.

The second element includes three categories of product defect, any of which must exist at the time of the sale or distribution: a manufacturing defect, a design defect, and inadequate instructions or warnings.

Question 40

Strict Liability in Tort - Manufacturing Defect

Answer 40

A manufacturing defect is one where the product departs from its intended design—that is, it contains a flaw. This is different from a design defect, which is common to the entire product line.

Question 41

Strict Liability in Tort - Design Defect

Answer 41

In determining whether a product has a design defect, there are two primary and divergent theories used by different courts:

1. Risk-utility theory - under this theory, plaintiff must prove that there is an “inherently unreasonable” risk because the risk of harm is significant and there is little or no utility to the product.
2. The theory is that there is a reasonable and feasible alternative design that would have been economically feasible and safer. Discuss this theory only when you are told of a low-cost alternative design.

California also uses the reasonable expectations test, so that if a product dangerously fails to perform as a consumer would expect it to, that failure is a design defect.

Question 42

Strict Liability in Tort - Failure to Warn

Answer 42

A manufacturer is subject to liability for failure to warn if it:

1. knows or has reason to know
2. that the product is likely to be dangerous for the use for which it is supplied, and
3. has no reason to believe that the users of the product will realize its dangerous condition, and
4. fails to inform the users of the product’s dangerous condition or of the facts which make the product likely to be dangerous.

A significant issue in failure to warn cases is the third element: the obviousness of the risk. With respect to prescription drugs and medical devices, the general rule is that the duty to warn is satisfied if the manufacturer gives adequate warnings to the patient’s physician, but do not assume that was done on an essay unless you are told explicitly that it was.

Question 43

Strict Liability in Tort - Defenses

Answer 43

Contributory negligence is not a defense to strict products liability, but comparative negligence is.

Question 44

Products Liability - Negligence

Answer 44

The elements are the same as ordinary negligence—duty, breach, actual cause, proximate cause, and harm.

The manufacturer of a product owes a duty to all foreseeable users or bystanders whether or not they are the immediate purchaser, to make the product carefully if a product, when negligently made, is “reasonably certain” to place users in peril, and, in the case of plaintiffs other than the immediate purchaser, the manufacturer knows that the product will be used by persons other than the immediate purchaser without further inspection or tests.

Question 45

Products Liability - Express Warranty

Answer 45

The elements of products liability breach of the express warranty are:

1. The making of an express warranty,
2. which is one that is an affirmation of fact concerning the goods,
3. reliance by the consumer on the warranty, and
4. a breach of the warranty that causes harm to a foreseeable person.

Question 46

Products Liability - Implied Warranty of Merchantability

Answer 46

The elements of products liability breach of the implied warranty of merchantability are:

1. the existence of the warranty and reliance on it by the purchaser,
2. the breach, and
3. that the breach of the warranty proximately caused the loss sustained.

“Merchantability” means that the goods are sold by a merchant in goods of the kind, that goods must be of fair average quality and fit for the ordinary purposes for which such goods are used, are adequately packaged or labeled, and conform to the promises or affirmations made on the container or label, if any.

Question 47

Products Liability - Implied Warranty of Fitness for a Particular Purpose

Answer 47

The elements of products liability breach of the implied warranty of fitness for a particular purpose are:

1. The existence of the warranty,
2. the breach, and
3. that the breach of the warranty proximately caused the loss sustained.

The seller must know of the particular or special needs of the buyer at the time of the sale, and must recommend the product with that knowledge.

Question 48

Defamation - Rule

Answer 48

A defamatory statement is one that holds the plaintiff up to ridicule or harm to reputation.

The elements of defamation are:
1. a defamatory statement;

2. of or concerning the plaintiff;
3. publication, which means communication of the statement to a third person; and
4. harm

Question 49

Defamation - Slander vs. Libel

Answer 49

Slander is oral defamation. There is no recovery for slander, absent proof of special damages, unless it is slander per se. Slander per se includes the five categories set out in Civil Code §46 (accusation of crime; imputes presence of contagious or loathsome disease; tends directly to injure in respect to office, profession, trade or business; impotence or a want of chastity; statement that causes actual damage).

Libel is a written and, usually, broadcast defamation (radio and TV). Libel per se, which is libel on its face, also carries presumed damages, so no proof of special damages is required. Libel per quod, which requires proof of extrinsic facts (inducement) and the defamatory meaning in light of those facts (innuendo), or colloquium, requires proof of special damages before general damages will be awarded.

Question 50

Defamation - Absolute Privilege to Publish

Answer 50

In an absolute privilege, it doesn’t matter if the statement is false, or is made with malice. Absolute privilege includes statements made in the proper discharge of an official duty, such as a legislative or judicial proceeding.

Question 51

Defamation - Defenses

Answer 51

There are two major defenses to a defamation claim: truth and privilege.

Truth historically is a complete defense to defamation.

The privilege to publish a defamatory statement may be absolute or qualified.

Question 52

Defamation - Qualified Privilege to Publish

Answer 52

A qualified privilege exists if the statement is made without malice, and to a person interested therein by:

1. One who is also interested, or
2. by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or
3. who is requested by the person interested to give the information.

Question 53

Defamation - First Amendment Defenses

Answer 53

Where defendant can claim First Amendment defenses, plaintiff must prove the four standard elements of defamation are present, and must also prove:

5. falsity of the defamatory language; and
6. fault

Question 54

Defamation - Public Officials

Answer 54

Under New York Times v. Sullivan, the First Amendment requires that a public official may not recover damages of any kind for a defamatory falsehood relating to his official conduct unless he proves that the statement was false, and was made with actual malice: knowledge that it was false or reckless disregard of its falsity.

Question 55

Defamation - Public Figures

Answer 55

The New York Times v. Sullivan rule also applies to “public figures.”

A public figure includes one who voluntarily injects themselves, or is drawn into the forefront of a public controversy to influence the resolution of issues, or, by reason of their pervasive fame or notoriety through achievements, shape events in areas of concern to society at large.

Question 56

Defamation - Matters of Public Concern

Answer 56

When the defamatory statement involves a matter of public concern, Gertz v. Welch requires that the plaintiff prove falsity and that the defendant make the false statement at least through negligence in order to obtain actual damages.

But for plaintiff to recover presumed damages, such as when the defamation is slander per se or libel per se, or punitive damages, plaintiff must still prove malice.

Question 57

Defamation - Matters of Private Concern

Answer 57

When the defamatory statement involves a matter of purely private concern, only the other four elements of defamation are required, and malice is not required in any form.

Where plaintiff is a private person and the media is the defendant, defamation plaintiffs who do not prove malice by communications media defendants may only recover actual damages, and may not obtain punitive damages against communications media defendants, under Gertz v. Welsh.

Question 58

Invasion of Privacy - Intrusion

Answer 58

A person who unreasonably and seriously interferes with another’s interest in not having his affairs known to others is liable to the other for intrusion.

An objective standard is used—defendant should have realized that his conduct would have offended a person of ordinary sensibilities.

Question 59

Invasion of Privacy - Public Disclosure of Private Facts

Answer 59

The elements of the tort are:

1. Public disclosure
2. of a private fact
3. that would be offensive and objectionable to the reasonable person
4. that is not of legitimate public concern.

A fact is private if the plaintiff has made reasonable attempts to keep the matter private. A three-part test for newsworthiness considers the social value of the facts published; the depth of the article’s intrusion into ostensibly private affairs; and the extent to which the party voluntarily acceded to a position of public notoriety.

If the press publishes truthful information that it has lawfully obtained, civil or criminal punishment may only lawfully be imposed, if at all, when narrowly tailored to achieve a compelling state interest.

Question 60

Invasion of Privacy - False Light

Answer 60

The elements of false light invasion of privacy are:

1. Defendant publicizes a private matter concerning plaintiff
2. that places the plaintiff before the public in a false light
3. that would be highly offensive to a reasonable person and,
4. if it involves a matter of public interest, defendant acted with malice (knowledge or reckless disregard of the falsity of the matter and the false light).

Question 61

Invasion of Privacy - Appropriation

Answer 61

Appropriation protects the person’s pecuniary interest in the commercial value of their identity.

The elements are:

1. an appropriation or use
2. of the plaintiff’s identity
3. by the defendant
4. for the defendant’s commercial purposes.

Question 62

Misrepresentation - Intentional Misrepresentation

Answer 62

The elements of intentional misrepresentation are:

1. Defendant made a false representation concerning a presently existing material fact
2. that the Defendant either (a) knew was false or (b) made recklessly, knowing that he had insufficient knowledge on which to base the representation
3. for the purpose of inducing the other party to act on the representation
4. that the other party, acting reasonably or justifiably and in ignorance of the falsity of the representation, actually relied on it and
5. was thereby induced to act to his injury and damage.

Question 63

Misrepresentation - Negligent Misrepresentation

Answer 63

The elements of negligent misrepresentation are:

1. Defendant made a false representation concerning a presently existing material fact,
2. that the defendant honestly believed to be true, but without reasonable ground for such belief,
3. for the purpose of inducing the other party to act on the representation,
4. that the other party, acting reasonably or justifiably and in ignorance of the falsity of the representation, actually relied on it, and
5. was thereby induced to act to his injury and damage.

Question 64

Misrepresentation - Concealment

Answer 64

The elements of concealment are:

1. Defendant made a representation concerning a presently existing material fact, but omitted material facts, which omission makes the statement misleading,
2. that the defendant knew was misleading
3. for the purpose of inducing the other party to act on the representation
4. that the other party, acting reasonably or justifiably and in ignorance of the falsity of the representation, actually relied on the representation; and
5. was thereby induced to act to his injury and damage

Question 65

Intentional Interference with a Contract - Rule

Answer 65

There are five separate elements to a claim for intentional interference with a contract:

1. Interference
2. which is intentional and
3. improper or unlawful
4. in a contract between two other persons
5. causing one of them to not perform the contract.

Interference requires some act, and not merely a refusal to do something. Interference must be unlawful and unprivileged.

Question 66

Intentional Interference with Prospective Economic Relations - Rule

Answer 66

In an action for interference with prospective economic relations, plaintiff must prove:

1. an economic relationship between plaintiff and third parties;
2. knowledge by the defendant of the existence of the relationship;
3. intentional, wrongful acts, independent of the interference itself, designed to disrupt the relationship;
4. actual disruption of the relationship; and
5. damages proximately caused by the acts

Question 67

Damages - Generally

Answer 67

Tort damages must be causal, foreseeable, reasonably certain, and unavoidable.

Economic loss is generally not recoverable in a negligence action unless there is also either physical injury or injury to property.

Punitive damages are only recoverable if the defendant’s conduct was malicious, willful, or completely reckless.

Question 68

Contribution - Generally

Answer 68

Contribution allows any tortfeasor who is required to pay more than his share of the damages to have a claim against the other jointly liable parties for the excess he paid.

Question 69

Indemnity - Generally

Answer 69

Indemnity involves shifting the entire loss between or among tortfeasors.

Indemnity is available in several circumstances, such as:

1. where it is provided by contract;
2. where a party is only vicariously liable;
3. under strict products liability, where each supplier is liable to the injured plaintiff, but each supplier has a right of indemnification against all previous suppliers in the distribution chain; and
4. where there is a considerable difference in degree of fault.