Torts

Question 1

Intentional Torts - Prima Facie Case

Answer 1

Elements:

1. Act by Defendant (volitional movement)
2. Intent (specific, general (substantial certainty of result), or transferred)
3. Causation (defendant’s act was a substantial factor in bringing about the injury)

Question 2

Transferred Intent

Answer 2

Intent may transferred between victims and only the following intentional torts:

1. Assault
2. Battery
3. False Imprisonment
4. Trespass to Land
5. Trespass to Chattels

Question 3

Causation (Intentional Torts)

Answer 3

If defendant’s conduct was a substantial factor in brining about the injury

Question 4

Battery

Answer 4

Elements

1. Harmful or Offensive Contact (to a reasonable person)
2. To Plaintiff’s person
3. Intent
4. Causation

Note: Damages not required. Nominal damages may be recovered if actual damages are not proved. Punitive damages are available if malicious.

Question 5

Assault

Answer 5

Elements

1. Act creating reasonable apprehension in plaintiff
2. Of immediate harmful or offensive contact to plaintiff’s person
3. Intent
4. Causation

Notes: Apprehension is only knowledge or understanding, not fear; Words alone insufficient, must be coupled with conduct. Damages not required (nominal damages available if no actual damages proved; punitive damages if malicious)

Question 6

False Imprisonment

Answer 6

Elements

1. Act or Omission by Defendat that Confines or Restrains Plaintiff
2. To a Bounded Area
3. Intent
4. Causation

Notes: Bounded Area need not be physically bounded; also requires that plaintiff have no reasonable means of escape that plaintiff could reasonably discover; plaintiff must know of the confinement; Damages not required

Question 7

Intentional Infliction of Emotional Distress

Answer 7

Elements:

1. Act by defendant of extreme and outrageous conduct (transcends all bounds of decency);
2. Intent or recklessness;
3. Causation; and
4. Damages - Severe emotional distress

Notes: Must prove actual damages (severe emotional distress); but damages need not be physical (e.g., a showing of distress if you want)

Question 8

Extreme and Outrageous Conduct (Intentional Infliction of Emotional Distress)

Answer 8

Extreme and Outrageous Conduct transcends all bounds of decency in a civil society. Conduct that is not normally outrageous may become so if:

1. It is continuous or repetitive in nature;
2. It is directed at a fragile class (children, elderly, pregnant, known sensitivities); or
3. Committed by Common Carriers or Innkeepers

Question 9

Intentional Infliction of Emotional Distress to a Bystander

Answer 9

When the defendant causes physical harm to a third person and the plaintiff experiences severe emotional distress as a result of it, the plaintiff can recover by showing either the prima facie case for IIED or that (1) she was present when the injury occured; (2) she is a close relative of the injured person; and (3) that the defendant knew facts (1) and (2).

Question 10

Trespass to Land

Answer 10

Elements:

1. Physical Invasion of plaintiff’s real property;
2. Intent
3. Causation

Notes: Physical Invasion by anything tangible; Intent need only be to enter on the land (no requirement to know that land belonged to another); No showing of Damage required. This cause of action belongs to any possessor of land.

Question 11

Trespass to Chattels

Answer 11

Elements

1. An act that interferes with plaintiff’s right of possession in a chattel;
2. Intent
3. Causation
4. Damages

Notes: Damages can be either in damaging or depriving a right of possession; Remedy is the cost of repair or rental.

Question 12

Conversion

Answer 12

Elements

1. An act that interferes with plaintiff’s right of possession in chattel;
2. The interference is so serious that it warrents requiring defendant to pay the chattel’s full value;
3. Intent
4. Causation

Notes: Mistake as to ownership is no defense (only intent to do the act is required); Damages - Fair Market Value

Question 13

What are the Intentional Torts?

Answer 13

Intentional Torts (7)

• Battery*
• Assault*
• False Imprisonment*
• Intentional Infliction of Emotional Distress (D)
• Trespass to Land*
• Trespass to Chattels* (D)
• Conversion (D)

*Transferred Intent Rule Applicable

(D) Requires damages

Question 14

What are the defenses to Intentional Torts?

Answer 14

Defenses (5)

• Consent (express or implied)
• Protective Privileges (self-defense, defense of others, defense of property)
• Privilege of Arrest
• Necessity (Public and Private)
• Discipline (parent or teacher)

Question 15

Protective Privileges

Answer 15

Self-Defense, Defense of Others, Defense of Property

Consider:

1. Timing - may respond to immenent or threats in progress
2. Reasonable Belief that threat is genuine
3. Proportional Response (can only use the force that is necessary)

Notes: Majority Rule: No duty to retreat; but, modern trend imposes a duty to retreat before using deadly force if this can be done safely (unless in the home); may not use deadly force in defense of property

Question 16

Privilege of Arrest (and Shopkeeper’s Privilege)

Answer 16

Defense to Intentional Torts (defense to false imprisonment)

• Misdemeanor - Arrests privileged for breaches of peace that took place in front of defendant
• Felony - Private citizens can only make arrests when a felony has in fact occured, however, they can make reasonable mistake regarding the identity of the felon
• Shopkeeper’s Privilege: shopkeeper can detain a suspected shoplifter when (1) he has a reasonable belief that a theft occured; (2) the detention is conducted in a reasonable manner (can never use deadly force); and (3) the detention is only for a reasonable time and only for the purposes of making an investigation

Question 17

Necessity

Answer 17

Defense to Intentional Torts (trespass to land, trespass to chattels, conversion)

A person may interfere with the real or personal property of another when it is reasonably necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it.

1. Public - When the act is in the public good (no damages recoverable)
2. Private - when the act is solely to benefit a limited number of people (may recover damages)

Question 18

Discipline

Answer 18

Defense to Intentional Torts

A parent or teacher may use reasonable force in disciplining children.

Question 19

Defamation (w/o first amendment implication)

Answer 19

Elements:

1. Defamatory Langauge;
2. Of or Concerning the plaintiff;
3. Publication therof by defendant to a third person;
4. Damage to the Plaintiff’s reputation

Notes: Defamatory language is language tending to adversely affect one’s reputation; Inducement and Innuendo (pleading additional facts to show defamation where a statement is not defamatory on its face); Colloquium (extrinsic evidence to show that statement refers to the plaintiff); Publication can be intentional or negligent. Damages may be presumed in cases of libel or slander per se. If damages cannot be presumed (slander cases), the Plaintiff must show special pecuniary damages.

Question 20

When may Defamation Damages by presumed?

Answer 20

In cases of libel (written or printed, radio or television) or slander per se.

Slander per se:

• Adversely reflects on one’s business or profession;
• Claims that someone has a loathsome disease;
• Claims that someone is guilty of a crime involving moral turpitude; or
• Claims that woman is unchaste.

Question 21

Defamation (where First Amendment is implicated)

Answer 21

When the defamation involves a matter of public concern the plaintiff must also show:

1. Falsity of the Statement; and
2. Fault on the part of the defendant.

Notes: Fault depends on the plaintiff’s status:

• Public Official/Public Figure - Must show actual malice ((1) knowledge of falsity or (2) reckless disregard as to whether it was false)
  
  • Damages presumed
• Private Person - Negligence at to statement’s truth or falsity
  
  • Damages only for proved actual injury
  • Damages presumed if actual malice is proved

Question 22

Defenses to Defamation

Answer 22

1. Consent
2. Truth (where plaintiff does not need to prove falsity)
3. Absolute Privilege - remarks made during judicial proceedings, remarks by legislators during procedings, remarks by executive officials during compelled broadcasts; remarks between spouses
4. Qualified Privilege - Where there is a public interest in encouraging candor (statements in the interest of the recipient, references, statements made to police); qualified privelege can be lost if it excees scope or plaintiff prove’s actual malice

Also consider mitigating factors (not a defense but may reduce damages)

Question 23

Invasion to the Right of Privacy

Answer 23

Four Branches

1. Appropriation of Plaintiff’s Picture or Name (unauthorized use for commercial advantage)
2. Intrusion on Plaintiff’s Affairs or Seclusion (prying or intruding that would be highly offensive to a reasonable person)
3. Publication of Facts Placing Plaintiff in False Light (attributing views to plaintiff he does not hold and doing so would be highly offensive to a reasonable person)
4. Public Discolsure of Private Facts about Plaintiff (public disclosure of private facts and such disclosure would by highly offensive to a reasonable person)

Defendant’s conduct must be a proximate cause of the invasion.

These are personal rights (cannot be brought by family members and do not survive death); special damages need not be proven (emotional distress and mental anguish are sufficient)

Question 24

Intentional Misrepresentation (Fraud, Deceit)

Answer 24

Elements

1. Misrepresentation of a material past or present fact
2. Scienter (defendant knew or believed he was misrepresnenting)
3. Intent to induce plaintiff to act in reliance on misrepresentation
4. Causation (actual reliance)
5. Justifiable reliance
6. Damages (actual pecuniary loss)

Notes: There is no general duty to disclose unless (1) fiduciary relationship; or (2) sale of real property when sellor knows plaintiff cannot reasonably discover defect

Question 25

Negligent Misrepresentation

Answer 25

Elements

1. Misrepresentation in a business or professional capacity;
2. Breach of duty owed to a particular plaintiff;
3. Causation;
4. Justifiable reliance;
5. Damages (actual pecuniary loss).

Question 26

Interference with Business Relations

Answer 26

Elements

1. Existence of a valid contractual relationship or valid business expectancy between plaintiff and third party;
2. Defendant knows of such relationship;
3. Intentional interference by defendant inducing a breach by third party; and
4. Damages

Notes: Defendant’s conduct may be privileged where it is a proper attempt to obtain business for itself; privilege is more likely where only prospective business is interfered with or defendant uses commercially acceptable means of persuasion rather than illegal or threatening tactics.

Question 27

Wrongful Institution of Legal Proceedings

Answer 27

Prima Facie Case:

1. Institution of criminal proceedings (generally extended to civil proceedings as well);
2. Termination in plaintiff’s favor;
3. Absence of probable cause
4. For an improper purpose
5. Damages

Prosecutors immune.

Question 28

Negligence (Prima Facie Case)

Answer 28

Elements:

1. A duty on the part of the defendant to conform to a specific standard of conduct;
2. A breach of that duty by defendant;
3. The breach is the actual and proximate cause of the plaintiff’s injury; and
4. Damage.

Question 29

Duty of Care Analysis (Negligence)

Answer 29

1. Was the Plaintiff Foreseeable? (Duty only owed to foreseeable plaintiffs; Cardozo (Majority View)- duty owed to those in a foreseeable zone of danger; Andrews - everyone is foreseeable)
2. If so, what is the applicable standard of care?

• Generally - Reasonable Person Standard (reasonable person in same circumstances; does not consider mental deficiencies; does consider physical characteristics)
• Special Standards:
  
  • Professionals - Care of average member of profession in good standing (national standard)
  • Children - held to standard of a child of like age, education, intelligence (unless performing an adult activity)
  • Common Carriers and Innkeepers owe a higher standard of care to passangers/guests

Question 30

Duties Owed by Owners/Occupiers of Land

(Premises Liability)

Answer 30

To those off premises:

• Duty to protect from/warn about dangerous artificial conditions on the premises; carry out activities on premises to avoid unreasonable risk to those off premises

To those on premises:

1. Known or Anticipated Trespassors: warn or make safe known, concealed, artifcial conditions involving risk of death or serious bodily harm; (also consider Attractive Nuisance Doctrine)
2. Licensees (social guests): warn or make safe known dangerous, concealed conditions
3. Invitees (land held open to public): same as that owed to licensees plus a duty to make reasonable inspections

Modern trend rejects status rules and just applies a reasonaple person standard.

Question 31

Attractive Nuisance Doctrine

Answer 31

Duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on the property.

Plaintiff must show:

1. a dangerous condition that landowner is or should be aware of;
2. the owner knows or should know that children frequent the vicinity
3. the condition is likely to cause injury (i.e, it is dangerous because the child is unable to appreciate the risk); AND
4. the expense of remedying the situation is slight compared to the magnitude of the risk

Question 32

Statutory Standards of Care (Negligence Per Se)

Answer 32

A statute providing for criminal penalties may replace the more general common law standard duty of care if:

1. the plaintiff is within the protected class of the statute; and
2. the statute was designed to prevent the type of harm suffered by the plaintiff.

Exceptions: where breach of statute was beyond defendant’s control or compliance would cause more danger than violation

Question 33

Negligent Infliction of Emotional Distress

Answer 33

(Near Miss Scenarios)

Elements:

1. Plaintiff must be within the zone of danger,
   
   • ​ distress caused by threat of physical impact; and
2. Plaintiff must suffer physical symptoms

But, plaintiff may recover if not in zone of danger if: (1) plaintiff was closely related to the person injured; (2) present at the scene of the injury; and (3) witnessed the event. Or if there is a special relationship between plaintiff and defendant and careless performance of duty causes emotional distress (doctor-patient).

Question 34

Affirmative Duty to Act

Answer 34

Generally there is no affirmative duty to act

Exceptions:

1. Assumption of Duty to Act
2. Peril due to defendant’s conduct
3. Special Relationship

Question 35

Res Ipsa Loquitur (how to establish)

Answer 35

Where the very occurence of an event may tend to establish breach. Res Ipsa requires that the plaintiff show:

1. the accident causing the injury is a type that would not normally occur unless someone was negligent; and
2. the negligence is attributable to the defendant (often shown be proving exclusive control)

Question 36

Res Ipsa Loquitur (effect)

Answer 36

Where res ipsa is established the plaintiff has made a prima facie case of negligence and no directed verdict may be given for the defendant

Question 37

Actual Cause Tests

Answer 37

• General Test: “But For”
• Joint Causes (where either cause alone could have caused the damage; e.g., fires combining): substantial factor
• Alternative Causes (one of two acts caused the harm but which is not known): burden shifts to defendants to show that it wasn’t them

Question 38

Proximate Cause

Answer 38

General Rule: Forseeability: Liabile for all harmful results that are the normal incidencts of and within the increased risk caused by his acts.

• Direct Cause: liable for all harmful results unless freakish or bizarre

Question 39

Proximate Cause (Indirect Cause Cases)

Answer 39

• Foreseeable Harmful Result from either a foreseeable or unforeseeable intervening force: defendant generally liable (unless unforeseeable intervening force was a crime or intentional tort)
• Unforeseeable Harmful Result: defendant generally not liable (intervening force is superseding)

Question 40

Unforeseeable Extent or Severity of Harm

Answer 40

Defendant takes plaintiff as he finds him; liable for all damages, including aggravation of an existing condition (even if unforeseeable)–Eggshell plainiff

Question 41

Damages (Negligence)

Answer 41

Personal Injury - all damages, economic and non-economic

Property Damage - cost of repair (or replacement if necessary)

Damage will not be presumed; punitive damages only if conduct is wanton and willful, reckless, or malicious; plaintiff has a duty to mitigate

Question 42

Defenses to Negligence

Answer 42

• Contritubory Negligence: plaintiff’s negligence contributed to harm; complete bar; but P can still recover if D had last clear chance
• Assumption of the Risk: plaintiff denied recovery if (i) knew of risk and (ii) voluntarily proceeded
• Comparative Negligence: Plaintiff’s recovery reduced by percentage of own negligence:
  
  • Partial (Majority): Plaintiff’s recovery barred if Plaintiff’s negligence exceeds Defendant’s
  • Pure (Minority) - Plaintiff recovers no matter how great Defendant’s negligence

Question 43

Strict Liability (Prima Facie Case)

Answer 43

1. Nature of defendant’s activity imposes an absolute duty to make safe;
2. Dangerous activity was actual and proximate cause of injury
3. Damage to plaintiff’s person or property

Question 44

Liability for Animals

Answer 44

1. Trespassing Animals: strict liability for reasonably foreseeable damage done by trespass of animial
2. Personal Injury: strict liability for wild animals and domestic animals with a known dangerous propensity; strict liability will not be imposed in favor of trespassers absent owner’s negligence

Question 45

Abnormally Dangerous Activities

Answer 45

Strict Liability

Abnormally dangerous activities are those that (1) create a foreseeable risk of serious harm even when reasonable care is exercised and (2) the activity is not a matter of common usage in the community

Question 46

Defenses to Strict Liability

Answer 46

• Contributory Negligence is a defense only if plaintiff knew of the danger
• Assumption of the Risk is a good defense
• Comparative Negligence applies

Question 47

Products Liability Theories

Answer 47

1. Intent
2. Negligence
3. Strict Liability
4. Implied Warranties of Merchantability and Fitness for a Particular Purpose
5. Representation Theories (express warranty and misreprentation)

All theories requiring the showing of (1) a defect (2) in existence when the product left defenant’s control

Question 48

Products Liabilities Defects

Answer 48

• Manufacturing Defect - product failed to perform as safely as an ordinary customer would expect
• Design Defect - product could have been made safer without serious impact on price or utility
• Inadequate Warnings

Question 49

Products Liability based on Negligence

Answer 49

1. Duty of Care to any foreseeable plaintiff
2. Breach
   
   • Negligent conduct leading to supply of defective conduct
   • (hard to hold retailers and wholesalers liabile for negligence because they satisfy the duty with a cursory inspection)
3. Causation
4. Damages

Question 50

Products Liability based on Strict Liability

Answer 50

Elements:

1. A commercial supplier (merchant) of a product;
2. producing or selling a defective product;
3. which was the acutal and proximate cause of injury; and
4. Damages

Defenses: Only comparative negligence is available; disclaimers are irrelevant

Question 51

Implied Warranties of Merchantability and Fitness for a Particular Purpose

Answer 51

Implied in the sale of all goods

Merchantability: goods are fit for ordinary purpose;

Fitness: goods are fit for a particular purpose that the seller knows the buyer is expecting and the buyer is relying on seller’s skill and judgment in selecting the good

• Who can sue: horizontal privity: buyer, family, household and guests

Question 52

Private Nuisance

Answer 52

Private nusiance is a substantial, unreasonable interference with another private individual’s use or enjoyment of property he possesses

For unreasonable interference, balance injury against utility of defendant’s conduct

Question 53

Public Nuisance

Answer 53

Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community; recovery by a private party is only available if the public nuisance causes the private party to suffer unique damage not suffered by the public at large

Question 54

Nuisance Remedies

Answer 54

• Plaintiff will ususally be awarded damages (private nuisance, or special plaintiff in public nuisance)
• Injunctive Relief: if damages are unavailable or inadequate; court will balance the hardships

Question 55

Vicarious Liability

Answer 55

One person liabile for the torts of another

1. Respondeat Superior: employer liable for torts of employee’s commited in scope of employment
2. Partners liable for the tortious conduct of other partners committed in teh scope and couse of the partnership
3. Car owner for driver: generally not liable (but may be directly liable for negligent entrustment)
4. Tavernkeepers: Vendor not generally liable for vendee’s intoxication, except if state has enacted a dramshop act

Question 56

Joint and Several Liability

Answer 56

Where two or more negligent acts combine to proximately cause an indivisible injury, each will be jointly and severally liable (liable to the plaintiff for the whole thing)

• Satisfaction: P may only recover once
• Release: release of one tortfeasor does not release the others
• Contribution: tortfeasor who pays more than his share may have a claim against other tortfeasors for their share
• Indemnity: shifting the entire loss between tortfeasors; available by contract, in vicarious liability situations, strict products liability (retailor and recover from manufacturer), and sometimes where there is an identifiable difference in the degree of fault