Torts

Question 1

Battery (Intentional Torts)

Answer 1

A harmful or offensive contact with the plaintiff’s person intentionally caused by the defendant.

Person includes things connected to the person

Contact is deemed offensive if the plaintiff has not expressly or implied lay consented to it.

Question 2

Assault (Intentional Tort)

Answer 2

Intentional creation by the defendant of a reasonable apprehension of immediate harmful or offensive contact to the plaintiff’s person

Apprehension = Knowledge “need not be fear”

Words alone generally are not enough

Question 3

False imprisonment (Intentional Tort)

Answer 3

An intentional act or omission by the defendant that causes the plaintiff to be confined or restrained to a bounded area.

Confinement or restraint includes threats of force, false arrests, and failure to provide a means of escaped when under a duty to do so.

Question 4

Intentional infliction of emotional distress

Answer 4

Intentional extreme and outrageous conduct by the defendant that causes the plaintiff to suffer severe emotional distress.

Physical injuries are not required only severe emotional distress

Question 5

Trespass to land (Intentional Tort)

Answer 5

An intentional act by the defendant that causes a physical invasion of the plaintiff’s real property.

The defendant need not have intended to commit a trespass, only to do the act of entering onto the land.

Question 6

Trespass to chattels (Intentional Tort)

Answer 6

An intentional act by the defendant that causes an interference with the plaintiff’s right of possession in a chattel, resulting in damages.

The tort typically involves damage to or dispossession of the plaintiff’s chattel.

The defendant need not have intended to commit a trespass to the chattel only to do the act that causes interference with chattel.

If a damage to the chattel is serious, conversion may be more appropriate.

Question 7

Conversion (Intentional Torts)

Answer 7

An intentional act by the defendant that causes a serious interference with the plaintiff’s right of possession in a chattel.

The defendant need not have intended a conversion, only to do the act that constitutes a conversion.

The interference with the chattel is so serious as to require the defendant to pay the full value of the chattel (in effect a forced sale of the chattel.

Question 8

Transferred Intent

Answer 8

Intent will transfer from the intended tort to the committed tort, or from the intended victim to the actual victim

Both the intended and the tort committed must be battery, assault, false imprisonment, trespass to land, or trespass to chattel. In other words intentional torts.

Question 9

Defenses to intentional torts.

Answer 9

1- Consent

2- Self-defense, defense of others, defense of property

3- Necessity

Question 10

Defamation of Private Person

Answer 10

Apply the common law prima facia case:

Defamatory language concerning the plaintiff published to a third person that causes damage to the plaintiff’s reputation.

Damages will be presumed if the defamation is libel (in writing or other permanent form) or if it is slander (spoken) within one of the four per se categories (business or profession, loathsome disease, crime of moral turpitude, or unchastity of a woman); otherwise special (pecuniary) damages must be shown.

Question 11

Defamation of a public person

Answer 11

Apply the constitutional rules if the plaintiff is a public official or figure, or if the defamation involves a matter of public concern.

1- The plaintiff must prove that the statement was false

2- Public officials or figures must prove “actual malice” i.e., that the statement was made with knowledge of its falsity or reckless disregard of its truth or falsity.

3- Private figures suing on a matter of public concern must shown (i) at least negligence as to the truth or falsity, and (ii) actual injury (no presumed damages)

Question 12

Applicable defenses to Defamation

Answer 12

1- Truth (when the constitutional requirement of proof of falsity does not apply)

2- Absolute privilege for statements in judicial, legislative, or executive proceedings

3- Qualified privilege for matters in the interest of the publisher and/or recipient (may be lost if the statement is outside the scope of the privilege or made with actual malice)

Question 13

Consent (Relevant Defenses)

Answer 13

1- Consent may be either expressed or implied

2- The plaintiff must have capacity to consent and the defendant must not exceed the bounds of the consent.

Question 14

Self-defense, defense of others, defense of property (Relevant Defense)

Answer 14

1- The defendant must reasonably believe that a tort is being or about to be committed against himself, a third person, or his property.

2-Only reasonable force may be used
A) Deadly force is permitted if reasonably believe to be necessary to prevent serious bodily injury.
B) Deadly force is never permitted to defend only property

3- The shopkeeper privilege permits the reasonable detention of someone the shopkeeper reasonably believes has shoplifted goods.

Question 15

Necessity (Relevant Defense)

Answer 15

1- A defendant whose property tort was justified by a public necessity has an absolute defense.

2- If justified only by a private necessity, the defense is qualified (the defendant must pay for any damage caused)

3- This privilege trumps a property owner’s right to defend his property.

Question 16

Invasion of privacy (four kinds of wrongs)

Answer 16

1- Appropriation of the plaintiff’s picture or name

2- Intrusion on the plaintiff’s affairs or seclusion

3- Publication of facts placing the plaintiff in a false light

4- Public disclosure of private facts about the plaintiff

Question 17

Invasion of privacy defenses

Answer 17

Consent; and

Absolute or qualified privileges

Question 18

Appropriation of the plaintiff’s picture or name (Invasion of Privacy)

Answer 18

A- Unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage

B- Limited to the advertisement or promotion of products or services

Question 19

Intrusion on the plaintiff’s affairs or seclusion (Invasion of Privacy)

Answer 19

An act of prying or intruding on the plaintiff’s private affairs or seclusion that would be highly offensive to a reasonable person

Question 20

Publication of facts placing the plaintiff in a false light (Invasion of Privacy)

Answer 20

A- The publication of facts about the plaintiff putting her in false light in the public eye in a way that would be highly offensive to a reasonable person

B- Actual malice must be shown if the publication is in the public interest

Question 21

Public disclosure of private facts about the plaintiff (Invasion of Privacy)

Answer 21

A- The public disclosure of private information about the plaintiff such that the disclosure would be highly offensive to a reasonable person

B- Public disclosure requires publicity, not just publication to a few people.

Question 22

Two types of Misrepresentation

Answer 22

1- Intentional misrepresentation (Fraud)

2- Negligent misrepresentation

Question 23

Intentional misrepresentation (fraud)

Answer 23

1- Defined: Misrepresentation by the defendant with scientific (knowledge of falsity or reckless disregard as to truth/falsity) and intent to induce reliance, causation (actual reliance on misrepresentation), justifiable reliance, and damages.

2- The defendant generally has not duty to disclose material facts but may be liable for active concealment.

Question 24

Negligent Misrepresentation

Answer 24

1- Defined: Misrepresentation by a defendant in a business or professional capacity, breach of duty to the plaintiff, causation (actual reliance on misrepresentation) justifiable reliance, and damages.

2- The defendant owes a duty only to those to who the misrepresentation was directed or those who the defendant knew would rely on it.

Question 25

Interference with business relations

Answer 25

1- Defined: A valid contractual relationship or business expectancy of the plaintiff and a third party, the defendant’s knowledge of the relationship, intentional interference by the defendant inducing a breach or termination of the relationship, and damages.

2- The defendant’s conduct may be privileged if it is a proper attempt to obtain business or protect the defendant’s interest.

Question 26

Malicious prosecution

Answer 26

Defined: Initiating a criminal proceeding against the plaintiff ending in plaintiff’s favor, absence of probable cause for the prosecution, improper purpose (malice) and damages.

Question 27

Elements of negligence

Answer 27

1- The defendant owes a duty to care to conform to a specific standard or conduct.

2-The defendant breached that duty

3- The breach of the duty was the actual and proximate cause of the plaintiff’s injury.

4- The plaintiff suffered damages to person or property

Question 28

General Standard of Care (Negligence)

Answer 28

Reasonable person (average mental ability but the same physical characteristics as the defendant)

Question 29

Standard of Care Professionals

Answer 29

Professionals must exercise the knowledge and skill of a member of the profession in good standing.

Question 30

Standard of Care (Children)

Answer 30

Children must conform to standard of care of a child of like age, education, intelligence, and experience.

Adult standard applies if the child is engaged in an adult activity

Question 31

Standard of Care-Landowner-Trespasser

Answer 31

1) The landowner owes no duty to undiscovered trespassers
2) For discovered and anticipated trespassers, the landowner owes the duty to warn of or make safe known highly dangerous artificial conditions if not obvious to the trespasser.

Question 32

Standard of Care-Landowner- Licensees

Answer 32

1) Licensees are those who come onto the land with express or implied permission but for their own purpose (includes social guests).
2) the landowner’s duty is the same as for discovered trespassers except that applies to all dangerous artificial and natural conditions.

Question 33

Standard of Care-Landowner- Invitees

Answer 33

1) Invitees are those entering as members of the public or for a purpose connected to the business of the landowner
2) The landowner’s duty is the same as the licensees (applies to all dangerous artificial and natural conditions) with the additional duty to inspect for dangerous conditions.

Question 34

A criminal statute may serve to establish a specific standard of care in place of the general standard of ordinary care if:

Answer 34

A) The plaintiff is within the class that the statute was intended to protect; and

B) The statute was designed to prevent the type of harm suffered

Question 35

Negligent infliction of emotional distress- General basis of liability

Answer 35

The defendant breaches a duty to the plaintiff by creating a risk of physical injury and the plaintiff suffers emotional distress as a result.

1) The plaintiff is within the “zone of danger” and ordinarily must suffer physical symptoms from the distress
2) EXCEPTION: The defendant breaches a duty to a bystander not in the zone of danger who (i) is closely related to the injured person; (ii) was present at the scene of the injury, and (iii) personally observed or perceived the event.

CLOSELY RELATED: Parent, children, spouse.

Question 36

Breach of duty

Answer 36

1) Whether the defendant breached the applicable duty is a question for the trier of fact.

Question 37

Breach of duty- Res ipsa loquitur

Answer 37

Under res ipsa loquitur, the fact that the injury occurred may create an inference that the defendant breached his duty. Provided three requirements:

1) The accident causing the injury is a type that would have occurred absent negligence
2) The negligence is attributable to the defendant (usually because the defendant is in exclusive control of the instrumentality causing the injury)
3) The injury was not attributable to the plaintiff’s own conduct.