Torts

Question 1

Overview observations:

Answer 1

Hypersensitivity of P should be ignored (assume normal person).

No incapacity defenses, still held liable (child, unconscious, intoxicated, mental illness, etc.).

If D starts w/ intent to commit one tort against a particular person and a different tort takes place or against a different person, still liable. (Transferred intent doctrine). If accident, think transferred intent.

Question 2

Battery:

Answer 2

P must show that D intentionally committed a harmful or offensive contact.

• Contact is considered “harmful” if it causes a physical injury (won’t be tested).
• Offensive = unpermitted to a person of ordinary sensitivity.

Contact has to be with P’s person.

• “Person” includes things connected to the person (extended personality rule). Things you are holding count.

Question 3

Assault:

Answer 3

D must place the P in a reasonable apprehension

• “Apprehension” need not be fear.
• Apprehension = knowledge (must see it coming, but don’t have to be afraid).
  
  • Unloaded gun problem: if D lacks the possibility to do the battery, it doesn’t matter as long as you have a reasonable apprehension of the battery.
    
    • i.e., an apparent ability creates a reasonable apprehension.

Of an immediate battery/harmful or offensive contact.

• Just words are generally not enough for immediacy (“I’m gonna punch you in the face” without moving, but shaking your fist and doing that would be assault).
  
  • Need a menacing gesture (the shaking fist).
• May have the menacing gesture but accompanying words may negate the gesture (shaking fist, “I would punch you if you weren’t my best friend.”). Also, look to the time said in the words, “I’m gonna slap you tomorrow.”
  
  • NOTE: Be on the lookout for a transferred intent from assault to battery, i.e., person meant to scare/assault, slips and actually hits the other person, this is a transferred intent to battery.

Question 4

False imprisonment:

Answer 4

D must commit an act of physical restraint

• Threats can be a restraint, “if you leave I will kill you” (shows gun), or “if you leave I’ll call the cops.”
  
  • Remember must be a threat to a reasonable person.
• A failure to act can be an act of restraint if there is a preexisting duty between the people. (keeping a lady in a wheelchair on a plane).
• P must be aware of the restraint or harmed by it (door is locked and you didn’t know it).

P must be confined in a bounded area.

• An area is not bounded if there is a reasonable means of escape that the P can reasonably discover. (hidden book that unlocks the door).
  
  • Dangerous, disgusting, humiliating, or hidden way out will not be reasonable (showering and someone steals your clothes).

Shopkeeper’s Privilege: A shopkeeper may avoid liability for false imprisonment when they have a reasonable belief as to the fact of theft, and the detention is done in a reasonable manner for a reasonable period of time.

• There must be a reasonable belief as to the fact of theft;
• The detention must be conducted in a reasonable manner and only nondeadly force can be used; and
• The detention must be only for a reasonable period of time and only for the purpose of making an investigation.

Question 5

Intentional Infliction of Emotional Distress (IIED): This claim can be made out either by intent or recklessly (unlike all the other intentional torts).

Answer 5

D must engage in outrageous conduct

• Outrageous conduct = conduct that exceeds all bounds of decency tolerated in a civilized society.
  
  • Mere (by themselves) insults are never outrageous.
  • Usually outrageous conduct if:
    
    • continuous or repetitive in nature;
    • is the D a common carrier or innkeeper (Amtrak/hotel). The desk clerk makes fun of your appearance;
    • P belongs to a fragile class (children, elderly people, pregnant women).
• If D has advanced info that P has some kind of emotional weakness, targeting that emotional weakness is outrageous (Coworker says I have a phobia of kittens and you bring them kittens the next day, you are liable).

P must suffer severe emotional distress.

• No specific evidence is required (no particular category of evidence is mandatory, but evidence is still necessary).
• NOTE: Many times they will negate this element in the fact pattern (Near end of problem they say P was “mildly annoyed,” i.e., not severe).

Question 6

Trespass to land:

Answer 6

D must commit an act of physical invasion and

• “Physical invasion” can be done in two ways:
  
  • D goes on the land,
    
    • D does not have to know they crossed the boundary line. They intentionally got to that location, so it is intentional. Have to get there on purpose.
• Throw something on the land.
  
  • The thing you send on the land must be physical (i.e., shining bright lights or loud noises does not count, those would be a nuisance).

Invasion must be of P’s land.

• Land includes the air above and soil below as long as it can reasonably be used by the owner (within a reasonable distance).

Question 7

Trespass to Chattels and Conversion:

Answer 7

Intentional interference with P’s property (car, bike, any tangible thing).

• Can interfere by:
  
  • Permanently damaging it (vandalism), or
  • By taking it away from you (theft).
• If interference is great, then conversion. (“You break it, you buy it.”)
  
  • Remedy for conversion is not limited to covering costs of repair, instead you can recover full market value of the property.
• If interference is slight, then trespass to chattel.
  
  • Remedy for trespass to chattel is cost of repair.
• NOTE: A mistake about ownership of the item is not a defense (computer won’t take your password so you break it, you are liable).

Question 8

Affirmative Defenses: Consent (defense to all intentional torts):

Answer 8

• Did P have legal capacity to consent?
  
  • May be able to consent to those things they understand (kids wrestling).
• Two kinds of consent:
  
  • Express consent:
  • an outright grant of permission (can be oral or written). [Too easy to test, so probably won’t be tested].
  • Implied consent:
    
    • Consent that is implied by custom and usage (if a P goes to a place or engages in activity where certain invasions are routine, i.e., playing football, front walkway implies visitors can walk up to your home).
    • Consent based on a D’s reasonable interpretation of a P’s objective conduct (body language consent).
• NOTE: The defense of recapture of chattels is limited by the circumstances of the original dispossession. When another’s possession of the owner’s chattel began lawfully, the owner may use only peaceful means to recover the chattel.
• Exception to all consent: If consent was obtained through fraud or duress, then it is void. (Can also be done by a failure to disclose, not sharing an STD example).
• All consent has a scope, if D exceeds the scope, they may be liable.

Question 9

Protective Privileges: The analysis of all three is the same. All three involve D defending a threat by P.

Answer 9

• Self defense
• Defense of others
• Defense of property
  
  • Only available if the threat is in progress or imminent.
    
    • Acting too soon: “tomorrow I’m gonna slap you silly,” then you slap them. No preemption.
    • Acting too late: you get punched, start walking away, then you beat them up. No revenge.
  • D must have a reasonable belief that the threat is genuine.
    
    • If D makes a reasonable mistake, can still claim protective privilege.
  • Must limit response to the force necessary under the circumstance. (Deadly force never necessary when protecting property, however, when someone trespasses into your home it is inferred that you may be in fear for your life and courts may allow deadly force – castle doctrine).
    
    • Ex.: The teenager will prevail because the landowner may not intentionally use a vicious dog to protect only his property. One may use only reasonable force to defend property. A landowner may not use force that will cause death or serious bodily harm. Furthermore, one may not use indirect deadly force such as a trap, spring gun, or vicious dog when such force could not lawfully be directly used, e.g., against a mere trespasser.
  • A landowner usually must make a request to desist before defending property.

Question 10

Necessity defenses – only apply to property:

Answer 10

Public necessity: D commits a property tort to protect the community as a whole or a significant group of people, thus, no liability. Superhero.

• Usually a big catastrophe, i.e., fire that is spreading throughout the neighborhood.

Private necessity: D commits a property tort to protect an interest of their own.

• Only a partial defense:
  
  • You have to pay for any actual harm you do – compensatory damages.
  • If you do no harm, your technical tort is excused, thus, no nominal (want $1 for the principle of the matter) or punitive damages (punishment).
  • If you go on the property to take refuge, you must be allowed to remain (i.e., cannot be ejected by property owner) – right of sanctuary. (if the person is ejected and gets injured the property owner will be liable).

Question 11

Negligence: Duty: Is an obligation to take risk reducing precautions for the benefit of others.

Answer 11

Owe a duty of care to foreseeable victims (those near you). You do not owe a duty to unforeseeable victims (those far away).

• Palsgraff: Explosion of fireworks then penny scale falls on Palsgraff. She was not foreseeable. “Those outside the zone of danger.” Zone of danger depends on the activity.
  
  • Exception: Rescuers are always foreseeable! (“Danger invites rescue.”)

Must exercise the same precaution as a reasonably prudent person acting under similar circumstances.

• Reasonably prudent person is an objective standard of care, no allowances for D’s shortcomings. (D leaves rags soaked in gas and they spontaneously combust and burn down neighbors garage, D says, I am stupid, no defense). (Mentally ill or mentally challenged, doesn’t matter, still reasonably prudent person standard).
• Exceptions to reasonably prudent person standard: (is a one way ratchet, can only click higher, never lower).
  
  • If D has superior skill or knowledge, then it is a RPP with that skill or knowledge. (racecar driver, someone who has lived in the neighborhood their whole life).
  • Where relevant, D’s physical characteristics can be taken into consideration (i.e., blind person and the case has something to do w/ vision).

Question 12

Special Duty Scenarios:

Answer 12

Children:

• Children under 5 owe zero duty of care.
• Children over 5 are supposed to behave like a child with similar age, experience, and intelligence acting under similar circumstances.
  
  • Subjective standard of care, varies from child to child.
• Exception: If child is engaged in an adult-activity, use RRP.
  
  • Operating a motorized vehicle.

Professionals:

• Lawyers, accountants, architects, engineers, healthcare providers.
• The care of an average member of the same profession providing similar professional services.
  
  • How do others in that profession actually do those services? Not imaginary like the RRP. Compare to the peer group.
    
    • Custom of the profession sets the standard of care. (i.e., almost always need an expert witness, but now, the expert can be from anywhere).
• NOTE: Avoid using the word “reasonable,” use instead “average member,” “custom,” “conformist,” etc.

*Informed Consent* - Only applies to Doctors: Must disclose the risks of treatment prior to embarking on that treatment.

Question 13

Premise Liability Cases:

Answer 13

Unknown Trespasser: Person comes on to land w/o permission and owner does not know they are there.No duty is owed to an unknown trespasser.

• They are a perfect example of an unforeseeable victim.

Known Trespasser: Also includes anticipated trespassers (usually signal that there has been a “pattern of trespassers.”).

The possessor must protect only against those parts on the land that meet a 4-part test: (must protect against the known, man-made death traps on the land).

• Condition in question must be artificial (created by human beings),
• Condition must be highly dangerous (capable of inflicting severe bodily harm or death),
• Condition must be concealed from the trespasser, and
• The possessor must have prior knowledge that the condition exists.

Licensee: Enter land w/ either express or implied consent, but do not provide any economic benefit to the landowner. (A guest).

Two-part test: (from all known traps).

• Protect from conditions that are concealed, and
• Known in advanced by the possessor.

Invitee: Enter w/ permission and to confer an economic benefit on the possessor, or those who enter when the land is open to the public at large.Two-part test: (duty to protect from all reasonably knowable traps).

• Condition is concealed from the invitee, and
• Either known or could be discovered through a reasonable inspection.
  
  • How would a RPP perform the inspection?

Question 14

Statutory Standards of Care: (Negligence Per Se)

Answer 14

Is the statute designed to protect a class of people that the P is a member of?

Demonstrate that the statute is designed to prevent the type of injury.

Exceptions:

• Even when the two-part test is met, when compliance would have been more dangerous than the violation, not negligence per se, look to RPP.
• If statutory compliance was impossible, don’t use the statute. (person has a heart attack and runs a red light, then use RPP standard).

Question 15

Duties to act affirmatively:

Answer 15

No duties to act affirmatively. (If you don’t want to go skiing, don’t go skiing, but if you do, you have to ski like a RPP). No duty to undertake a course of conduct.

Do not have to rescue a person in peril.

Exceptions:

• If a preexisting relationship, that triggers a duty. (Legal relationship, employer – employee, landowner – invitee, innkeeper – guest).
• If D is the one who caused the peril, then there is a duty.
  
  • The duty that is triggered is to act reasonably. Never need to put your own life in peril, but you need to do what is reasonable (i.e., call for help).
• If you opt to rescue and perform the rescue negligently, you are liable. (Many states have changed this by statute, good Samaritan laws).

Question 16

Cases involving Negligent Infliction of Emotional Distress:

Answer 16

When you have a duty to avoid harming someone mentally.

D has already been deemed to have acted negligently, but P has no physical injuries, only mental injuries.

Near-miss cases: D almost hurt P, close call.

• P must show they were in a zone of physical danger, and
• As a result of emotional distress, you then suffered subsequent physical manifestations.

Bystander cases: Negligent D causes serious injury or death to another party; P is emotionally sad over their injury or death.

• P and the direct victim must be close family members (parent, child, or spouse), and
• That you witnessed the injury to the victim in real-time, must be on the scene and see it happen.

Business Relationship Cases: P and D are in a preexisting business relationship and careless performance is highly likely to cause emotional distress.

• Ex.: Medical patient and medical laboratory, lab negligently informs you have cancer. Funeral parlor and client, they say we’ve lost your grandmother, or cremated them. Not: Dry cleaner, customer. Dry cleaner ruins shirt. Not foreseeable that it would cause emotional distress.

Question 17

Breach of Duty: P must demonstrate what D did wrong and give a reason why its wrong (particularizing conduct plus and explanation).

Answer 17

Example of breach in exam: “Plaintiff will allege that the breach was that D had martinis, P will allege that this was unreasonable because drinking alcohol impairs your ability to drive.” Look to fact + reason.

Exception, Res ipsa loquitor: P lacks the information to show what D did wrong, but you know this would not have happened w/o negligence.

• Res ipsa loquitur requires that:
  
  • 1. The accident is of a type that normally does not occur in the absence of someone’s negligence;
  • 2. The evidence connects the defendant to the negligence (i.e., this type of accident ordinarily happens because of the negligence of someone in the defendant’s position); and
  • 3. The injury was not attributable to the plaintiff or any third person.
• Note: this just allows you to get to the jury, no guarantee that they will come out in your favor.
  
  • One of the effects of res ipsa loquitur is that no directed verdict may be given for the defendant, because when the res ipsa element has been proved, the plaintiff has made a prima facie case for negligence.

Question 18

Factual or Actual Causation: Establishes a connection between the breach and the injury suffered.

Answer 18

“But for” test: Was the breach essential to causing the injury?

• Imagine a scenario where there was no breach, if P is still injured, then no “but for” cause.

Merged cause scenarios: Two negligent actions cause the injury. (Two negligently caused fires, D1 throws cig out window, then D2 two miles away fails to extinguish campfire, the two fires join and burn down P’s house).

Substantial factor test:

• Ask whether each breach contributed to the injury in a substantial way, and
• If a breach, had it been the only breach, would have caused the injury, it is substantial.
• If both deemed substantial, then both liable.

Unascertainable cause case: Ex.: 3 guys hunting, 2 guys shoot at the same time and hit the third hunter with only one pellet, but whose pellet was it? Simultaneous negligence and only one true source of harm but not sure who.

• Shift the burden of proof.
• Up to D’s to talk their way out of the case, if they cannot show it wasn’t them, then both are liable.

Question 19

Proximate Cause: (Think of “fairness,” P must convince that liability would be fair).

Answer 19

Judge fairness based on whether what happened was a foreseeable consequence of the breach.

• Ask if this is an unusual or freakish case, Palsgraff w/o Palsgraff, guy gets burnt by the explosion, that would not be seen as foreseeable or fair.

Where courts have determined there was proximate cause:

• Cases involving intervening negligent medical treatment.
  
  • Car accident causes break to leg, malpractice causes the leg to be amputated, the person who did the car accident will still be liable for the amputated leg.
• Intervening negligent rescue.
  
  • Same accident, someone comes to rescue and dislocates that persons shoulder. Person who caused accident would still be liable for dislocated shoulder.
• Intervening protection or reaction forces.
  
  • D runs red light, hits one Ped breaks his leg, everyone in the intersection panics and steps on the man and disfigures his face, man who ran the red light liable for facial disfigurement.
• Subsequent disease or accident.
  
  • Breaks leg, uses crutches, falls and breaks his arm, driver liable for the broken arm as well.

Question 20

Damages:

Answer 20

Egg shell skull doctrine: Once other elements have been established, P will recover for all harm, even if surprisingly great in scope.

Applies to every tort on the bar exam, intentional torts, etc.

Question 21

Defenses to Negligence:

Answer 21

Pure Comparative negligence: D must show that P failed to exercise proper care for his own safety.

• Proper = RPP.
• Can also include a self-protective statute, i.e., a jaywalking statute.
  
  • Jury will weigh and compare the fault of both parties and limit the recovery accordingly (reduced by their own percentage of fault).

Modified or Partial Comparative Negligence: P fault over 50% is a bar and P gets zero.

Question 22

Strict Liability Claims (SL for defective products)

Answer 22

Strict Liability for Animals:Distinguish between two types of animals:

• Domestic pets: house pets or farm animals.
  
  • Not liable unless animal has vicious propensities (unique to this one animal) and this is known to you, will be strictly liable (but this would not apply to a trespasser on your land).
• Wild animals: there is strict liability.
  
  • Safety precautions are irrelevant.

Strict Liability for Abnormally Dangerous Activities:

“Abnormally Dangerous Activity”:

• Foreseeable risk of serious harm even when reasonable care is exercised, and
• Activity is uncommon in the community where it is being conducted.

Three types generally:

• Anything involving explosives.
• Anything involving highly toxic chemicals or biological materials.
• Anything involving radiation or nuclear energy.

Safety cautions are irrelevant.

Strict Liability for Products:

Products = consumer products (container of olives) and industrial products (forklift).

If someone gets hurt by a product will almost certainly have multiple claims (make sure that you are analyzing under the theory they are asking about).

Elements that P must show:

• D is a merchant, (someone who routinely deals in goods of this type),
  
  • Commercial lessors are merchants, i.e., rental car company.
  • Parties up the distribution chain with whom you did not deal with directly are liable/merchants.
• Product must be defective,
  
  • Three kinds of defect:
    
    • Manufacturing defect: when the product differs from all the others that came off the assembly line in a way that makes it more dangerous in a way that consumers would expect (1 in a million product).
      
      • Again, safety precautions do not matter.
    • Design defect: if costs of design outweigh the benefits of the design such that a reasonable merchant would not put it out on the market. Do costs of danger outweigh the benefits?Actually, a form of negligence liability.P usually offers a reasonable alternative design:
      
      • Safer design,
      • Economically feasible, and
      • It is practicable, not difficult to use.
    • Information defect: if a product has residual risks that cannot be designed away and if that risk is not apparent to users, the product is defective if it lacks adequate warnings.
      
      • Warning must be adequate.
        
        • Look to the placement of the warning,
        • Whether the warning is comprehendible,
        • Does it need risk mitigation information? (Wear mask while using).
• Product has not been altered since it left D’s hands, and
  
  • Presumption that it has not been altered so long as it has been moved in ordinary channels of production.
    
    • Does not apply to used items.
      
      • Say a retailer drops the manufacturers product, then the product has been altered by the retailer.
• P was making a foreseeable use of the product at the time of the injury.
  
  • Not necessarily an appropriate or proper use, just ask if it is foreseeable.

Question 23

Defenses for Strict Liability Torts:

Answer 23

Comparative responsibility: Same as comparative fault.

Question 24

Nuisance:

Answer 24

The unreasonable interference w/ P’s ability to use and enjoy property.

• Usually an inconsistent land use problem: Smoke from company next to asthma facility.
  
  • Could be spite or inconsideration.
• Balancing of interests:
  
  • D can use land for lawful purposes as they wish, but
  • P should be free from misery.
• Look for the choice that says, “P would win if they could show that D unreasonably interfered with the use and enjoyment of their property.”

Question 25

Vicarious Liability: Secondary party liable because of a relationship with the primary tortfeasor.

Answer 25

Employer – employee relationship: if employee does tort employer will be liable if tort was done within the scope of employment.

• Usually intentional torts are outside the scope of employment.

Exception:

• If job requires use of force and unreasonable use of force is used (bouncer).
• Job leads to friction or tension (repo man).
• Intentional tort done to serve the boss’s purpose.

Hiring party – independent contractor: no vicarious liability.

Exception: if you hire a ic to work on your property, you will be liable if they hurt your customer.

Automobile owner – automobile driver: owner not liable for driver.

Exception: if owner asks driver to take the car to do something for the owner. Agent/principle relationship.

Parent – child: no vicarious liability.

Question 26

Multiple Defendant Issues:

Answer 26

P sues ABC, P gets all the money from B. Can B look to A and C to get money?

Yes, comparative contribution rule.

• Full reimbursement if there is indemnification.
  
  • You are vicariously liable, can get full from active tortfeasor.
  • Nonmanufacturer can get full indemnification from a strict liability claim. (Home Depot sells product of Black and Decker, can get all back from Black and Decker).

Question 27

Loss of Consortium:

Answer 27

Any defenses that can be asserted against the injured spouse, can be raised against the uninjured spouse (i.e., comparative fault).

Why have loss of consortium?

• Loss of household services.
• Loss of companionship.
• Loss of sex.