Torts

Question 1

Battery

Answer 1

(1) harmful or offensive contact; (2) to plaintiff’s person; (3) defendant intent; (4) causation.

Harmful = serious injury; offensive = “unpermitted” by ordinary person; plaintiff’s person = anything connected to plaintiff.

Damages not required.

Question 2

Assault

Answer 2

(1) reasonable apprehension; (2) of immediate battery; (3) defendant intent; (4) causation.

Apprehension = knowledge (i.e., P must be know/be aware of the assault); reasonable = defendant has apparent ability to act (reasonable person standard).

Words alone insufficient.

Damages not required.

Question 3

False imprisonment

Answer 3

(1) act of physical restraint (incl. threats); (2) with P in bounded area (no reasonable means of escape); (3) defendant intent; (4) causation.

Reasonable means of escape = not

Damages not required, no time requirement.

Shopkeeper’s privilege: (1) reasonable belief as to theft; (2) detention in reasonable manner; (3) detention for reasonable time for investigation.

Question 4

IIED

Answer 4

(1) extreme or outrageous conduct by D; (2) intent OR RECKLESSNESS by D; (3) causation; (4) damages (severe emotional distress).

No physical manifestation required. Look for common carriers, fragile class P, known sensitivity.

Bystander cases: When another person is injured and P suffers severe emotional distress: (5) P was present when injury occurred; (6) plaintiff was a close relative of victim; (7) P observed the event; (8) D knew all of this.

Question 5

Trespass to Chattels

Answer 5

(1) Act of interference with ownership interest; (2) intent to perform the act; (3) causation; (4) damages.

Mistake is no defense (intent goes to intent to do the act, not intent to trespass to chattels).

Question 6

Conversion

Answer 6

(1) Act of interference with ownership interest; (2) intent to perform the act; (3) causation; (4) damages.

Can recover full market value of the thing.

Mistaken conversion is no defense (intent goes to intent to do the act, not intent to trespass to chattels).

Question 7

Consent defense re: intentional torts

Answer 7

Consent (express or implied) is defense to ALL intentional torts

Consentor must have capacity to give consent (NOT drunks, incompetents, or very young children);

Mistaken consent is still valid but fraud is not.

Question 8

Protective privileges defenses re: intentional torts

Answer 8

Defense of self, others, or property:

(1) threat must be imminent or in progress and (2) D must have reasonable belief threat is genuine (reasonable mistakes on that do not defeat the privilege)

Force must be proportional, can include deadly force but not ever for property.

Privilege not available to initial aggressor.

For property, request to desist usually required.

Question 9

Necessity privileges re: intentional torts

Answer 9

Only apply to property torts!

Public necessity: D commits a property tort to protect community or group of people (e.g., guy trespasses to put out a fire); total defense.

Private necessity: D commits tort to protect himself or his stuff; partial defense only, must pay for actual harm caused, if any.

Question 10

Trespass to land

Answer 10

(1) act of physical invasion; (2) intent; (3) causation.

No damages required; mistake is no defense.

Invasion = land below and air above, includes projectiles. Does not include light, sounds, smells, etc; means entrant has no privilege to enter.

Plaintiffs can be owners or lessees.

Question 11

Ordinary duties of care re: adults and children

Answer 11

Ordinary duty of care = take risk reducing measures that would be taken by reasonably prudent person to mitigate foreseeable risks.

Children under 5 y/o = no duty of care.

Children over 5 = similar age, experience, intelligence, circumstances. But if doing adult activity (operating motor vehicle) then adult duty of care.

Make allowances for physical but not mental infirmities.

Duty of care owed to “foreseeable” victims = within zone of danger, INCLUDING rescuers (who are ALWAYS foreseeable).

Question 12

Duty of care re: professional

Answer 12

Duty to exercise duty of care equivalent to average member of profession in good standing.

Re: doctors, includes duty to disclose risks of treatment to secure “informed consent” to procedure.

Question 13

Duty of care re: common carriers and innkeepers

Answer 13

Very high duty of care, liable for even slight negligence.

Question 14

Duty of care re: bailment

Answer 14

If sole benefit of bailor (e.g., “Would you hold this while I’m on vacation?”) = bailee only liable for gross negligence

If sole benefit of bailee (e.g., “Can I borrow your lawnmower?”) = liable for slight negligence

If mutual benefit = ordinary duty of care

Question 15

Duty of care re: possessors of land to those off the premises

Answer 15

Natural conditions = no duty of care
Artificial conditions = no duty of care, two exceptions:

(1) unreasonably dangerous man-made conditions abutting adjacent land; (2) to take due precautions to protect passersby from man-made conditions.

Question 16

Duty of care re: trespassers

Answer 16

Undiscovered trespassers = no duty of care
Discovered or anticipated trespassers = known man-made death traps (must warn or make safe)

Anticipated = pattern of trespass before

Question 17

Duty of care re: attractive nuisance

Answer 17

When landowner knows or should know that kids are around, ordinary care to avoid harm by known man-made traps.

Not necessary to prove that the child was actually attracted by the dangerous thing.

Question 18

Duty of care re: licensee

Answer 18

licensee = social guest, not there for economic benefit (has a revocable LICENSE to be there)

Duty to warn or make safe known man-made traps THAT THE LICENSEE WOULD BE UNLIKELY TO DISCOVER

Applies to firefighters and police officers.

Question 19

Duty of care re: invitee

Answer 19

invitee = business patron or a place open to public

Duty to warn or make safe known man-made traps + make reasonable inspections.

Question 20

Duty of care re: lessor on premises

Answer 20

Lessee owes duty re: any and all parts under his lease.

Other areas (e.g., common areas like hallways and stairs), the lessor has the duty of care.

Question 21

Duty of care re: statute

Answer 21

“Negligence per se”

When a statute imposes a clearly stated duty of care, it replaces the general duty if both conditions are met:
(1) P is in class designed to protect, (2) the conduct is the kind designed to prevent. 

Satisfying establishes conclusive presumption of duty and breach (no directed verdict for D ever)

This does not apply when (1) compliance is impossible or (2) compliance would have caused more harm.

No assumption of risk: When a statute applies and is enacted to protect a class, members of that class will not be deemed to have assumed any risk.

Question 22

Duty re: NIED

Answer 22

Duty, breach, causation, damages. Breach shown by:

1st person NIED: When P was almost hurt: zone of danger + physical manifestations.

3rd person NIED: “close in time, close in space, close in relationship”: P was there and saw it, close in relationship to victim.

Business relationship where careless performance is highly likely to cause emotional harm.

Question 23

Duties to Act

Answer 23

In general no duty to act to give assistance. Three major exceptions.

(1) But when you act to give assistance, you assume the duty to act like ordinary prudent person. If you breach this duty you could be liable (BUT many states shield with good samaritan laws).
(2) You have a duty to take reasonable care to assist a person YOU put in peril in the first place.
(3) Common carriers/innkeepers have duty to assist with reasonable care.

Question 24

Res ipsa loquiter requirements and effect

Answer 24

To invoke RIL, P must show:
• (1) the accident is a type normally associated with negligence
• (2) The accident would normally be due to negligence of someone in D’s position (to help ensure we’re suing the right person) -> show by showing that the object/thing was in D’s control (actual legal “possession” not required)
(3) P was not negligent

Does NOT create a presumption of negligence, just prima facie case.

No directed verdict for defendant. But defendant can rebut the presumption by putting on own evidence and then jury decides.

Question 25

Causation: actual cause

Answer 25

But-for test for actual causation. Applies in normal situations and concurrent causes situations (where no single cause would have been sufficient but together they were). Merged causes: when two causes merge to cause harm and any one alone would have been sufficient: P can show causation by showing D was merely a "substantial factor" in causing the harm. Alternative causes: when only one D caused harm but we have no way of knowing who did it: burden then shifts to D to show he did NOT cause the harm.

Question 26

Causation: proximate cause

Answer 26

Look at "fairness" by "foreseeability." If the harm was foreseeable, it's fair to hold D accountable; if not foreseeable, then not fair. When chain is uninterrupted, if harm foreseeable D liable; if harm not foreseeable D not liable. Some intervening forces always foreseeable and D liable: (e.g., med mal, rescuer negligence, subsequent disease, subsequent accident). Some "independent" intervening force cause harm, judge by foreseeability: (e.g., negligent/intentional tort/crime of third person, acts of God). Unforeseeable extent of harm does not relieve D; "eggshell skull."

Question 27

Comparative negligence

Answer 27

Pure comparative negligence: Jury decides how much P was negligent and award is reduced by that amount. "Partial comparative negligence" or "modified comparative negligence": not more than 50% rule.

Question 28

Strict liability: animals

Answer 28

Duty, breach, causation, damages: the duty is to make absolutely safe. Domesticated animals: no strict liability unless D knew it had violent tendencies unique to it. Wild animals: yes strict liability, precautions don't matter. But when wild animal attacks unknown trespasser, the trespasser must prove negligence (they don't get benefit of strict liability). Trespassing animals: If the trespass was FORESEEABLE, D strictly liable for harms caused by his own NON-HOUSEHOLD PET animals trespassing on to P's land. P can recover from actual harm inflicted by the wild animal, OR even injuries sustained while fleeing away from the wild animal.

Question 29

Strict liability: abnormally dangerous activities

Answer 29

Duty, breach, causation, damages: the duty is to make absolutely safe. (1) There is FORESEEABLE RISK of SEVERE harm even when careful; (2) The activity is UNCOMMON where it is taking place E.g., explosives; highly toxic materials; radiation or nuclear energy. Safety precautions are irrelevant. Matter of law, not fact. Judge can decide on directed verdict.

Question 30

Strict liability: products liability: elements + theories

Answer 30

P must show (1) D is a "merchant" who (2) sold defective product; and (3) product has not been altered since D sold it; and (4) P was making foreseeable use of the product. This is strict liability, so company precautions are not a defense. "Defect" can mean (A) manufacturing defect (different from others on assembly line); (B) design defect (“Costs” (i.e., tendency to hurt) of design outweigh benefits (e.g., comfort, speed, price to consumer) such that no reasonable merchant would have sold it. How does P establish this? Evidence of reasonable alternative design that is (1) safer, (2) same price (roughly), (3) practical. (C) Information defect: P must show product has residual risk not apparent to user and product needs adequate warning re: foreseeable uses. To prove actual cause, D is entitled to presumption than an adequate warning would have been read and heeded.

Question 31

Nuisance

Answer 31

Type of invasion of property right, usually intentional. Private nuisance: substantial (average person would think so) and unreasonable (balancing) interference with another private individual's use or enjoyment of property.

Question 32

Vicarious liability: employees versus IC's

Answer 32

Respondeat superior: employer liable for acts within scope of employment. Re: scope: Minor detours (short duration, small geographic deviation) versus frolics make a difference. Usually intentional torts are not within scope of employment, but sometimes they are (e.g., security guard). Independent contractors: Principal usually not liable for IC, two major exceptions: (1) the IC is engaged in inherently dangerous activity; (2) public policy makes the duty non delegable (e.g., security guard).

Question 33

Joint and several liability versus indemnification

Answer 33

Each tortfeasor is on the hook for the whole amount, but they can seek "contribution" from one another afterwards based on percentage of fault. "Indemnity" is for recovering whole amount.

Question 34

Defamation

Answer 34

(1) defamatory language about the plaintiff, (2) publication, (3) damaging to reputation. If P a public figure or concern, then (4) falsity and (5) fault. Defamatory language fact or fact-laden Publication just one other person than P and D Damages to reputation presumed in libel and "slander per se" (statements re: P profession/business, that P committed serious crime, that P woman unchaste, P has "loathsome" disease) Damages not presumed in other cases of slander. "Fault": If D is a public figure, P must show D made statement with “Malice," knowingly false or reckless disregard of its truth or falsity. If D is a private figure, P must show D made statement “negligently," failure to take reasonable steps to confirm its truth or falsity.

Question 35

Defamation defenses

Answer 35

Consent, Truth, Privilege Absolute Privileges: spouses, government officials in their work Qualified Privileges: public interest encouraging candor (professional references).

Question 36

Invasion of right to privacy: four forms

Answer 36

Mnemonic: CLIP (1) appropriation of P's picture or name for business purpose (2) False light: Widespread dissemination of material falsehood about P highly offensive to reasonable person. When public interest, also malice. (2) intrusion upon affairs or seclusion (wiretapping, peeping) that would be highly offensive to reasonable person (4) Disclosing private facts that would be highly offensive to reasonable person (E.g., doctor accidentally emails P’s medical records to all of his patients) [newsworthiness exception!]

Question 37

Products liability negligence theory

Answer 37

Duty, breach, causation, damages. Breach of duty requires showing (i) negligent conduct by the defendant leading to (ii) the supplying of a defective product by the defendant. P may use res ipsa loquitur. Evidence that manufacture complied with all statutes and regulations can be admitted as evidence of observing the required duty of care, but it is not conclusive evidence. A manufacturer lower down the chain using negligently made parts by someone up the chain will liable for that guy up the chain.

Question 38

In IIED, is physical manifestation required?

Answer 38

No.

Question 39

When it might normally apply, what can defeat a finding of negligence per se?

Answer 39

(1) compliance was impossible, (2) compliance would have been more harmful than violation.

Question 40

Defendant young children re: intentional torts and negligence

Answer 40

Intentional torts: can be liable if had requisite intent, no matter age. Negligence: Under 5 years old, not liable. Over 5 years old, look to "should have known better" with age, education, experience.

Question 41

IIED versus NIED

Answer 41

IIED: P himself was harmed versus P was bystander A) P himself was harmed: (1) extreme or outrageous conduct, (2) intent or recklessness, (3) causation, (4) damages--extreme emotional distress. No physical manifestation required. B) Bystander cases: (5) P close by, (6) close relationship, (7) P observed harm, and (8) D knew all that. ---------- NIED: Two bystander cases: A) P in zone of danger: (1) P in zone of danger; (2) P physical symptoms; (3) causation; (4) damages. B) P NOT in zone of danger: (1) P close by, (2) P close in relationship; (3) P observed event; (4) causation; (5) damages. (*Many states don't require physical symptoms in this case.) Also professional cases (e.g., doctor misdiagnosis).

Question 42

Tests for causation

Answer 42

But-for test Joint causes--both defendants cause the harm: substantial factor test. Alternative cause: only one caused the harm but we don't know who. Burden shifts to defendants to say who did NOT cause the harm.

Question 43

Products liability cases and bystander-plaintiffs

Answer 43

Bystanders can bring actions even when they weren't the purchaser or user AS LONG AS the bystander was foreseeable.

Question 44

Types of damages recoverable from products liability claims

Answer 44

Personal injury and property damages. Can also get economic damages but that can't be the SOLE damages sought under any products liability action (whether strict liability or negligence).

Question 45

In a strict products liability action based on warning defect, how can P show actual cause?

Answer 45

By normal but-for causation and P is entitled to a presumption that an adequate warning would have been read and heeded (i.e., but for the lack of an adequate warning, the plaintiff would not have been injured).

Question 46

Strict products liability and indemnification

Answer 46

When strict liability applies, each supplier of a defective product is liable to an injured person, but each supplier has a right of indemnification against ALL PREVIOUS SUPPLIERS of the defective product up the distribution chain, with the manufacturer of the defective product ultimately liable.

Question 47

How can a principal be VICARIOUSLY liable for torts by independent contractor?

Answer 47

In two situations: (1) the IC was engaged in inherently dangerous activity; (2) public policy says the duty of care non-delegable to the IC and remains with the principal (e.g., the duty of a business to keep its premises safe).

Question 48

How can a principal be liable for selecting/supervising an IC? Will the principal be vicariously liable for harms caused by IC?

Answer 48

The principal can be liable NEGLIGENCE if the principal did not exercise reasonable care in selecting/supervising the IC. But the principal will NOT be VICARIOUSLY liable for harms caused by the IC.

Question 49

Joint and several liability, joint tortfeasors, indemnification, and intentional torts

Answer 49

An intentional joint tortfeasor is liable in indemnity for the WHOLE AMOUNT to a joint tortfeasor who was merely negligent. Because an intentional tortfeasor is liable for all harms caused, intended, unintended, or even unforeseeable.

Question 50

When are punitive damages available for intentional torts?

Answer 50

If there's evidence of malicious intent or ill will.

Question 51

Under common law indemnity rules, if an employer is liable under respondeat superior theory, can employer seek indemnity against employee?

Answer 51

Yes. Under common law rules, employer can seek indemnity for 100% of the judgment.

Question 52

Shopkeeper's privilege

Answer 52

(1) reasonable belief as to theft; (2) detention in reasonable manner; (3) detention for reasonable time for investigation.

Question 53

Define "publication" for defamation purposes

Answer 53

Publication: D tells just one other person than P and D

Question 54

Doctrine of transferred intent

Answer 54

Three situations: (1) D intends to cause one tort but causes another (2) D intends to cause tort against one person but does it to another person (3) both 1 and 2

Question 55

Apprehension versus fear re: assault

Answer 55

Apprehension = knowing the harmful or offensive contact is imminent Fear is not necessary for assault

Question 56

Sufficient versus Insufficient acts of restraint for false imprisonment

Answer 56

Sufficient: physical barriers, force against person/family/property, threats Insufficient:FUTURE THREATS or moral pressure

Question 57

Remedy re: trespass to chattels versus conversion

Answer 57

Trespass to chattels remedy: recover actual damages from harm or loss of use Conversion remedy: fair market value of item at time of conversion

Question 58

Is NIED available for damages to property?

Answer 58

No.

Question 59

Defects in strict liability products cases

Answer 59

"Defect" can mean (A) manufacturing defect (different from others on assembly line); (B) design defect (“Costs” (i.e., tendency to hurt) of design outweigh benefits (e.g., comfort, speed, price to consumer) such that no reasonable merchant would have sold it. How does P establish this? Evidence of reasonable alternative design that is (1) safer, (2) same price (roughly), (3) practical. (C) Information defect: P must show product has residual risk not apparent to user and product needs adequate warning re: foreseeable uses. To prove actual cause, D is entitled to presumption than an adequate warning would have been read and heeded.

Question 60

Joint and several liability definition

Answer 60

Each tortfeasor is on the hook for the whole amount, but they can seek "contribution" from one another afterwards based on percentage of fault.

Question 61

Indemnity definition

Answer 61

D tries to recover the whole amount of the judgment he was liable for against P by suing another

Question 62

In defamation cases, when are damages presumed

Answer 62

Damages to reputation presumed in all libel and "slander per se" (statements re: P profession/business, that P committed serious crime, that P woman unchaste, P has "loathsome" disease)

Question 63

definition "actual malice" for defamation re: cases by public figures

Answer 63

Actual knowledge of the falsity or reckless disregard as to whether it was false

Question 64

definition "public figure: re: defamation

Answer 64

Someone who has achieve pervasive fame or notoriety, or has voluntarily assumed a central role in a public controversy

Question 65

Burden of proof in defamation for (1) public figure versus (2) private figure in matter of public concern

Answer 65

(1) malice = Actual knowledge of the falsity or reckless disregard as to whether it was false (2) negligence as to statement's falsity

Question 66

Damages available for (1) public official or figure defamation (2) private figure in matter of public concern (3) private person in matter of private concern

Answer 66

(1) presumed damages under common law rules (2) damages only for "actual injury" (3) presumed damages under common law rules

Question 67

Defenses to defamation

Answer 67

Consent, truth, absolute privilege (e.g., legislator during proceedings, federal executive officials, spouses between each other), qualified privilege (can be lost by abuse).

Question 68

Explain appropriation of P's picture or name

Answer 68

An invasion of privacy tort UNAUTHORIZED use of P's picture or name for D's COMMERCIAL advantage. Must also prove causation!

Question 69

Explain intrusion on Plaintiff's affairs or seclusion

Answer 69

An invasion of privacy tort An act of prying or intruding highly offensive to a reasonable person into private matters. Example: peephole Must also prove causation!

Question 70

Explain false light

Answer 70

An invasion of privacy tort D attributes to P views or actions that P actually does hold hold or has done, highly offensive to reasonable person, and publication. Must also prove causation!

Question 71

Explain public disclosure tort

Answer 71

Public disclosure of private information that would be highly offensive to a reasonable person. Must also prove causation!

Question 72

Misrepresentation versus negligent misrepresentation

Answer 72

Misrepresentation: Misrepresentation of material fact, with scienter (D knew or believed it was false), intent, causation, justifiable reliance, damages. Negligent misrepresentation: *only really available in a commercial setting. Misrepresentation by D in a business capacity, breach of duty toward P, causation, justifiable reliance, damages

Question 73

Negligent misrepresentation

Answer 73

Misrepresentation by D in a business capacity, breach of duty toward P, causation, justifiable reliance, damages Only available in a commercial setting

Question 74

Child intent in intentional torts versus child standard of care in negligence

Answer 74

Children can form requisite intent for intentional torts, no matter their age Children only held to standard of care in negligence for similar child of age, intelligence, education, and experience.

Question 75

Duty of care to owed to undiscovered trespassers

Answer 75

No duty of care owed

Question 76

Duty of care to owed to known or anticipated trespassers

Answer 76

Warn or make safe known man-made death traps

Question 77

Attractive nuisance doctrine

Answer 77

Attractive nuisance in four steps! Known dangerous condition (man-made or natural), owner knows or should know children around, condition likely to cause injury, expense of prevention is slight compared to risk.

Question 78

Possible excuse for violating statutory standard of care

Answer 78

Where compliance would cause more harm than violation, or where compliance is impossible

Question 79

How duty can be shown to be breached

Answer 79

Look at the situation itself, look to custom, violation of a statute, res ipsa loquitur

Question 80

Effect of res ipsa loquitur

Answer 80

When res ipsa loquitur established, P has made prima facie case of negligence and NO DIRECTED verdict may be given.

Question 81

Effect of negligence per se

Answer 81

Establishes CONCLUSIVE presumption on first two elements of negligence: duty and breach

Question 82

Compare res ipsa loquitur and negligence per se

Answer 82

Res ipsa makes PRIMA FACIE case of negligence and thus covers all four requirements (duty, breach, causation, damages) Negligence per se established CONCLUSIVE presumption on just first two elements: duty and breach

Question 83

Strict liability and animals

Answer 83

Owner is strictly liable for - damage done by his own animal's trespass - injuries to licensees and invitees for wild animals (BUT NOT to trespassers)

Question 84

Define contribution versus

Answer 84

When several tortfeasors are jointly and severally liable, a D who pays more than his share can sue other tortfeasors for the excess NOT available for intentional torts! Indemnity = seeking the whole amount

Question 85

Elements of strict products liability (just the elements)

Answer 85

P must show (1) D is a "merchant" who (2) sold defective product; and (3) product has not been altered since D sold it; and (4) P was making foreseeable use of the product. This is strict liability, so company precautions are not a defense.

Question 86

Strict liability versus negligence re: products liability re: casual sellers

Answer 86

Negligence: anyone who sells, casual sellers + merchants Strict liability: must be merchant of the good in question

Question 87

Can a casual seller be liable for strict liability of a product defect? Of negligence?

Answer 87

Only of negligence

Question 88

The possible theories of recovery in products liability

Answer 88

(1) intent (rare!) - intentional harm (2) negligence (3) strict liability (4) implied warranty of fitness for particular purpose + implied warranty of merchantability (5) misrepresentation

Question 89

What kind of victims can sue in an implied warranty of merchantability case?

Answer 89

The buyer, plus foreseeable victims (e.g., family members, guests, etc.)

Question 90

Are products liability theories available for repairers of a product?

Answer 90

No! Repairers are not suppliers/sellers of a product. Thus, only normal negligence is available.

Question 91

In a "warning defect" case, when must the warning be made directly to the consumer or user? When may the warning NOT be made to the user/consumer for the user/consumer to sue?

Answer 91

Normally the warning must be made the the actual user/consumer to be able to sue. EXCEPT: "learned intermediary doctrine" for doctors and pharmacists who would have heeded a proper warning.

Question 92

Can a casual seller be liable for express warranties re: products liability case?

Answer 92

Yes

Question 93

What can a casual seller be liable for in a products liability case?

Answer 93

- negligence theories - express warranty theories - most kinds, just not strict liability

Question 94

Private necessity versus public necessity defenses

Answer 94

Private necessity: a trespass defense for avoiding a greater harm to yourself, your family, or one member of the community. Liable ONLY for the actual harm caused. Public necessity: a trespass defense for avoiding a greater harm to the community. Not liable for any of the harm caused.

Question 95

NIED: Normal requirements for showing damages and exceptions

Answer 95

Normally must show damages because it's negligence, and in all negligence must show damages. EXCEPTION: (1) mishandling a corpse, (2) false report of a death.

Question 96

Doctor informed consent doctrine: relates to what elements of negligence?

Answer 96

Duty and breach. Doctor has a DUTY to inform the patient of the risks. The doctor will BREACH the duty by not doing so. But P must still show causation and damages.

Question 97

How can a landowner properly stop trespassers?

Answer 97

A landowner must only use reasonable force to keep trespassers out. Cannot use unreasonable force, meaning deadly force or force likely to cause substantial bodily harm. No trap guns! Or anything similar.

Question 98

Employer-employee situations: Requirements for vicarious liability (respondeat superior) versus negligent hiring

Answer 98

Respondeat superior: negligence or intentional torts that arise within the scope of employment. Negligent hiring: just normal duty, breach. causation, damages. Damages to conduct reasonably prudent background checks, etc. THE HARM DOES NOT HAVE TO ARISE WITHIN THE SCOPE OF EMPLOYMENT.

Question 99

Duty of care owed to known or anticipated trespasser

Answer 99

To WARN (just warn) of known man-made death traps

Question 100

Duty of care to invitee

Answer 100

To MAKE SAFE + make reasonable inspections

Question 101

Negligence in products liability: requirements for a failure to inspect

Answer 101

Negligence: Duty, breach, causation, damages Duty: is to make reasonable inspections. Sometimes that's very cursory, but other times might be more involved. Breach: would be not making an inspection Causation: IF THE HARM **COULD NOT** HAVE BEEN DISCOVERED BY REASONABLE INSPECTION THEN PLAINTIFF CANNOT ESTABLISH CAUSATION AND PLAINTIFF LOSES. So plaintiff must show that the harm COULD HAVE been found by reasonable inspection.

Question 102

Privacy torts: which require publication and which do not?

Answer 102

CLIP: Commercial misappropriation; Light (false); Invasion on physical seclusion; Private facts disclosed. Does not: invasion on physical seclusion (e.g., peeping) Do: commercial misappropriation, false light, private facts disclosed.

Question 103

Dramshop Act

Answer 103

Imposes liability upon tavernkeeper where person gets drunk and later commits a tort against a victim

Question 104

Trespass to chattels damages versus conversion damages

Answer 104

Trespass to chattels = cost of repair Conversion = fair market value