Torts

Question 1

Elements of Battery

Answer 1

1. A acts (voluntarily);
2. Intending (or knowingly) to cause contact with P
3. The contact with P that A intends is of a harmful or offensive type; and
4. A’s act causes P to suffer a contact that is harmful or offensive.

Question 2

Intent to contact vs. Intent to cause injury

Answer 2

RS § 13: The intentional contact with P controls, NOT the intent (in any) to cause harm or injury.

Question 3

Intent and Knowledge

Answer 3

An actor intends the consequences of his conduct if he knows with substantial certainty that these consequences will result. An actor need not act with purpose. RS § 8A

Question 4

Stochastic Battery

Answer 4

Knowledge of risk combined with on-going activities sufficient to show intent? Courts are split.

Question 5

Glass Cage Defense to Battery

Answer 5

May an individual erect a glass cage around himself and announce that all physical contact with his person is at the expense of liability? Usually, no.

Question 6

Plaintiff’s Person

Answer 6

Contact with anything connected to the plaintiff’s person qualifies as contact with that person for the purposes of battery (ex. a person’s clothing, purse, bike). RS §18: The interest in the integrity of a person includes all those things in contact with or connected to that person.

Question 7

Context for touching

Answer 7

Touching must violate prevailing social standards of acceptable touching in a particular context.

Question 8

Elements of Assault

Answer 8

1. A acts;
2. Intending to cause in P the apprehension of an imminent contact;
3. The contact that A intends to cause apprehension of is of a harmful or offensive type; and
4. A’s act causes P reasonably to apprehend such a contact.

Question 9

Test for Offensiveness

Answer 9

1) Would it offend a reasonable sense of personal dignity? (normative)
2) What would be offensive to an ordinary person not unduly sensitive to personal dignity? (descriptive)
* Exception: special sensitivity is known, but reason to know is not sufficient.

Question 10

Test for Imminence

Answer 10

Without any significant delay. Did the act stop P from going about her business? (Is this on now?)

Problem: the Tony Soprano hypo.

Question 11

Transferred Intent

Answer 11

Can transfer between people (intend to hit A but hit B) and between assault and battery (intend to assault A but actually batter him; intend to assault A but actually batter B). Cannot transfer between different types of victim –> if D intends to shoot a window and actually shoots A, not a battery against A.

Question 12

Consent

Answer 12

P has agreed to endure a bodily contact that would otherwise be tortious. Can be express or implied. Always consider the scope of consent and whether it has been vitiated.

Implied must be manifested in P’s conduct i.e. being on a crowded train, P has consented to some jostling. Consent is not valid if obtained through coercion. (Main question: Would this contact be offensive in absence of consent? This determines if consent is necessary.)

Question 13

Limitations to Consent

Answer 13

(1) Mistake
(2) Fraud in factum for sex acts
(3) Coercion
(4) Lack of capacity

Question 14

Consent: An Element of the Offense or A Defense Against Prima Facie Case?

Answer 14

Prima Facia
Good: Conceptually superior: no such thing as a consented to rape
Bad: Burden of proof is on the plaintiff

Defense to Prima Facia
Good: Burden of proof is on the defendant since it must be raised as a defense.
Bad: Conceptually inferior: distorts the meaning of the tort.

Question 15

Reasonable Mistake of Consent

Answer 15

Can be a defense only if D actually and reasonably believed that P consented, based on P’s conduct. (Woman in injection line case)

Question 16

Elements of IIED

Answer 16

1. One who by extreme AND outrageous conduct
2. Intentionally or recklessly
3. causes
4. Severe emotional distress occurs.

Outrageous: Exceeds the possible limits of human decency. Mere insults/threats not enough.

Extreme: Rare.

Question 17

Recklessness

Answer 17

Conscious disregard of a known risk.

Question 18

Elements of Trespass

Answer 18

1. A intends to make contact with land, or is substantially certain that contact with the land will occur; and
2. The contact occurs.

Question 19

Nuisance

Answer 19

Unreasonable interference with the use and enjoyment of P’s real property. (No intent requirement)

1. The location of the claimed nuisance
2. The character of the neighborhood
3. The nature of the thing complained of
4. The frequency of intrusion
5. The effect upon P’s enjoyment of life, health, and property.
   (6. Did P come to the nuisance?)

Question 20

Elements of Negligence

Answer 20

1. A owed a duty to a class of persons including P to take care not to cause an injury of the kind suffered by P
2. Breach – A failed to act in a way that a reasonably careful person would have acted under the circumstances
3. A’s breach was an actual and proximate cause of P’s injury.
4. Harm

Question 21

General Duty of Care Question

Answer 21

Is harm reasonably foreseeable from A’s careless conduct? If so, A owes a duty of care to take steps to prevent the injury.

Foreseeability is an objective standard – D knew or should have known of the possibility of causing harm.

Question 22

Duty to Rescue

Answer 22

Generally no duty to rescue, unless:

1. D is causally involved in bringing about the danger;
2. D has voluntarily undertaken rescue; or
3. P and D have some kind of special pre-tort relationship

Question 23

Breach

Answer 23

Failure to act in a way that a reasonably careful person would have acted under the circumstances.

Question 24

Ordinary Care

Answer 24

The care a reasonably careful person would use under the circumstances. Objective standard (with exceptions for physical disabilities, but not for mental disabilities or insanity.)

Question 25

Premises Duty to an Invitee

Answer 25

Customer/student/employee

Someone on the premises for a business/institutional interest. Premises has duty to keep premises reasonably safe, duty to take reasonable steps to correct a hazard, and duty to warn of hidden danger that is not in plain and open view.

(Only in cases where the property caused the harm, not D’s hazardous activity)

Question 26

Premises Duty to Licensee

Answer 26

Social guest.

Duty to refrain from willfully or wantonly injuring P, and duty to warn or make safe hidden dangers that you know or should know about.

(Only in cases where the property caused the harm, not D’s hazardous activity)

Question 27

Premises Duty to Trespasser

Answer 27

Someone who enters or remains on premises without license/invitation.

Duty to refrain from willfully or wantonly injuring P. No duty to warn unlike licensee.

Exceptions for land that is constantly trespassed upon (i.e. shortcut through park) and for attractive nuisances.

(Only in cases where the property caused the harm, not D’s hazardous activity)

Question 28

Trend for Dealing With: Licensee/Invitee Distinction

Answer 28

Many states have abolished the distinction. Replaced with: duty of reasonable care to all those who enter property by permission

Question 29

Attractive Nuisance

Answer 29

Pools.

When a land-possessor has reason to foresee that children might enter the property and be endangered by a curious condition.

Question 30

Premises Duty/Hazardous Conditions vs. Activities

Answer 30

Liability DOES NOT extend to activities.

Question 31

Recreational Use Statutes

Answer 31

Land with pond used for skating.

Designed to immunize owners of properties that are used for recreational purposes from negligence liability.

Question 32

Liability to Non-Entrants

Answer 32

Generally: D is not liable to take care to protect against harms caused by “natural” conditions e.g. trees.

Exception: trees on D’s land interfering with public road. See pg. 100.

Question 33

Can children be liable for negligence?

Answer 33

Circuit split

1. Tender years doctrine – cannot be held negligent if under 7 years old
   a. 7-14 compared to other children of the same experience/age/intelligence
   i. Exceptions: engaged in adult activities or superior knowledge/ability
   b. 14+ treated as adults
2. RS/Massachusetts Rule – child can be held negligence if child failed to exercise a degree of care that is reasonable for children of similar age/intelligence/experience

Question 34

Elements of Negligent Supervision

Answer 34

1. Parents are aware of specific instances of prior conduct sufficient to put them on notice that child’s act was likely to occur;
2. Parents had the opportunity to control the child.

Question 35

Parental Liability

Answer 35

Generally no vicarious liability for child’s negligence/carelessness.

Question 36

TJ Hooper Rule

Answer 36

Custom is probative/relevant but not dispositive of what reasonable conduct is.

Question 37

Anti-TJ Hooper Rule

Answer 37

Professional standard of care for malpractice cases is determined by what is ordinarily employed by the profession generally under similar conditions and circumstances.

Question 38

Hand Formula

Answer 38

Method of assessing cost-justified precautions. Multiply the probability of bad thing happening by the gravity of the resulting injury and loss from that thing happening. If that $$ is less than how much the precaution would cost, the precaution is not cost-justified and there is no duty to take that precaution. (Does not factor in distributional concerns!!)

Question 39

Elements of res ipsa loquitur

Answer 39

The mere fact that this injury occurred is evidence of negligence.

1. ) The event was of a kind that dos not ordinarily occur in the absence of someone’s negligence;
2. ) The event must have been caused by an agency or instrumentality within the exclusive control of the defendant
3. ) The event must not have been due to any voluntary action nor contribution on the part of the plaintiff.

Question 40

Palsgraf Duty Rule

Answer 40

Duty is relational – D owes a duty of care to those people that D might foreseeably injure (spotlight analogy)

Question 41

Superseding cause

Answer 41

D1 is no longer liable because D2 has intervened with wanton or reckless conduct, and the path from D1’s careless conduct to P’s injuries is now too indirect to be fairly deemed something that D1 has caused.

Criminal acts are generally treated as superseding unless they are foreseeable. Fast Eddie’s

Medical malpractice in treating an injured patient is not a superseding cause (it’s considered foreseeable)

Question 42

Proximate Cause

Answer 42

Was this (general) type of harm a reasonably foreseeable consequence of the breach? (The extent of the injury doesn’t factor into foreseeability – Jolley)

Question 43

Loss of Chance Theory (Falcon)

Answer 43

Reframes the injury from loss of life to loss of opportunity to survive or loss of opportunity to receive competent care. Damages are limited to the percentage chance of survival/recovery.

Question 44

Multiple Necessary Causes

Answer 44

When multiple D’s are necessary to cause an injury, they are both considered “but for” causes and they are jointly and severally liable. (McDonald car crash)

Question 45

Elements of negligence per se

Answer 45

1. `Is this a safety-related (not an administrative) statute/regulation?
2. Was it designed to protect roughly this kind of person?
3. Was it designed to protect against roughly this kind of injury?

If so, P no longer has to demonstrate breach. (Still has to prove duty, cause, & harm!) [Presumption of carelessness is rebuttable – if D can demonstrate that compliance was more careless than non-compliance, then no breach]

Question 46

Multiple Sufficient Causes

Answer 46

There are multiple causes that would result in the harm. Therefore neither is a “but for” cause because the harm still would have resulted. Nevertheless, the court will treat both as a “but for” cause if the act was sufficient to cause the harm. (Anderson fire case)

Question 47

Pure Comparative Fault

Answer 47

P’s own carelessness limits D’s liability in proportion to P’s carelessness. Generally not a defense to intentional torts like assault and battery.

Question 48

Modified Comparative Fault

Answer 48

Once P’s own carelessness reaches a certain threshold, P is barred from recovery completely. (P can’t recover if her own fault is greater than D’s.)

Question 49

Alternative Causation

Answer 49

P’s harm could have been caused by any one of the named Ds (and all possible tortfeasors are named) – court can hold all Ds liable and shift the burden to them to prove they could not have been a cause of the injury. Summers v. Tice

Question 50

Requirements for Market Share Liability

Answer 50

1. Substantial percentage of market participants are named
2. Product was uniform and non-distinguishable
3. The injury was caused by the product

All Ds can be held liable under market share liability in accordance with the company’s market share at the time. Sindell.

Question 51

Eggshell Skull Rule

Answer 51

The wrongdoer is liable for all injuries that result as a consequence of the contact, whether the injuries were foreseeable or not. “You take your plaintiff as you find him.” Vosburg v. Putney

Question 52

Respondeat superior

Answer 52

An employer is held liable for the tortious conduct of employees that is committed within the scope of employment. (Does not apply to independent contractors but does apply to volunteers/interns/other in similar relationships.)

Question 53

Joint and several liability

Answer 53

P can sue any of multiple tortfeasors for the entire judgment amount. The tortfeasor that satisfies the judgment can seek restitution from the others (action for contribution)

Question 54

Possessor of Land

Answer 54

(a) A person who is in occupation of the land with intent to control it or
(b) A person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or
(c) A person who is entitled to immediate occupation of the land, if no other person is in possession