Torts

Question 1

Intentional Torts: Battery + Remember Offensive Meaning + Remember “Person”

Answer 1

A HARMFUL or OFFENSIVE CONTACT with the P’s PERSON intentionally caused by the D

Remember: Offensive means UNPERMITTED

Remember: Things touching or resting on a person (e.g. chair, horse, car)

Question 2

Intentional Torts: Assault + Remember “Apprehension” + Remember Words Alone + Tip for Conditional or Future Acts

Answer 2

Intentional creation by D of a REASONABLE APPREHENSION of IMMEDIATE harmful or offensive contact to the P’s person

Remember: Apprehension may also mean knowledge

Remember: Words ALONE generally are not enough to rise to an assault

Tip: Look out for conditional words (e.g. I would hit you if…) or future acts (e.g. tomorrow I will beat you up), these ARE NOT ENOUGH to reach “reasonable apprehension”

Question 3

Intentional Torts: False Imprisonment + Examples of Restraint + Remember D’s Knowledge + Remember Bounded Area

Answer 3

An intentional act or OMISSION by the D that causes the P to be CONFINED or RESTRAINED to a BOUNDED AREA

Examples of Restraint: THREAT of force, false arrests, and FAILURE TO PROVIDE a means of escape when UNDER A DUTY to do so

Remember: False imprisonment will only work if D KNOWS of the confinement or restraint AND is harmed by it

Remember: Bounded area means there is no REASONABLE means of escape the P can REASONABLY discover (i.e. escape cannot be dangerous, disgusting, humiliating, or hidden)

Question 4

Intentional Torts: Intentional Infliction of Emotional Distress (IIED) + Remember Mere Insults and Repetitive Conduct + Remember Common Carriers and Innkeepers + Remember Advanced Notice of D’s Weakness + Tip for Proof of Distress

Answer 4

Intentional (or reckless) EXTREME and OUTRAGEOUS conduct causing SEVERE EMOTIONAL DISTRESS

Remember: Mere insults ARE NEVER considered outrageous for IIED; however, repetitive conduct of insults could be considered outrageous

Remember: Common carriers and inn keepers actions are held to a higher standard for “outrageous”

Remember: If D has advance information that P has some emotional weakness, then targeting that weakness IS OUTRAGEOUS

Tip: a P DOES NOT NEED to show evidence of severe emotional distress, so if an answer option states no IIED because no evidence, it is wrong

Question 5

Intentional Torts: Trespass to Land + Remember Real Property Scope

Answer 5

An intentional act causing a PHYSICAL INVASION of plaintiff’s REAL PROPERTY

Remember: Real property extends beneath the property to the soil and above the property through the air

Question 6

Intentional Torts: Trespass to Chattels + Compare with Conversion + Remember Conversion Remedy

Answer 6

An intentional act that causes an INTERFERENCE with the P’s RIGHT OF POSSESSION in a chattel, resulting in DAMAGES

Conversion: Very similar, but a more serious damage to the chattels

Remember: If conversion, the remedy is the FULL MARKET VALUE of the chattel (trespass to chattels is generally just cost of repair)

Question 7

Doctrine of Transferred Intent + Intentional Torts Included in this Doctrine

Answer 7

Intent will transfer from the intended tort to the committed tort OR from the intended victim to the actual victim

Torts: Battery, Assault, False Imprisonment, Trespass to Land, Trespass to Chattels

Question 8

Intentional Tort Defenses: Consent + Exception + Remember Capacity + Remember Body Language

Answer 8

P’s EXPRESS or IMPLIED consent to D’s conduct is a valid defense to all intentional torts

Exception: If the consent was obtained through FRAUD or DURESS, the consent is invalid

Remember: P MUST HAVE capacity to consent and the D MUST NOT EXCEED the bounds of consent

Remember: A person may draw reasonable inferences from a persons body language to conclude implied consent

Question 9

Intentional Tort Defenses: Self Defense, Defense of Others, Defense of Property + Remember Timing + Remember Reasonable Force

Answer 9

Defendant must REASONABLY BELIEVE that a tort is being or about to be committed against himself, a third person, or his property

Remember: Self-defense is ONLY AVAILABLE if the threat is IN PROGRESS or IMMINENT

Remember: Only REASONABLE FORCE may be used

Question 10

Intentional Tort Defenses: Self Defense, Defense of Others, Defense of Property - Deadly Force + Remember Property

Answer 10

Deadly force is permitted if REASONABLY BELIEVED to be necessary to prevent SERIOUS BODILY INJURY

Remember: Deadly force is NEVER PERMITTED to defend ONLY PROPERTY

Question 11

Intentional Tort Defenses: Self Defense, Defense of Others, Defense of Property - Shopkeeper’s Privilege

Answer 11

Permits the REASONABLE DETENTION of someone the shopkeeper REASONABLY BELIEVES has shoplifted goods

Question 12

Intentional Tort Defenses: Public Necessity v. Private Necessity + Remember Partial or Absolute Defense + Remember Right of Sanctuary

Answer 12

Public: D commits a property tort to PROTECT THE COMMUNITY as a whole or a significant group of people (ABSOLUTE DEFENSE)

Private: D commits a property tort to PROTECT HIS OWN INTERESTS (PARTIAL DEFENSE)

Remember: In an emergency, the person is allowed to continue to trespass if the danger persists

Question 13

Negligence: Elements of Prima Facie Negligence Claim

Answer 13

1. Duty
2. Breach
3. Causation (Actual & Proximate)
4. Damages

Question 14

Negligence: Duty - General Standard of Care + Remember Reasonable Physical Characteristics

Answer 14

The general standard of care is that a person owes of a reasonable person acting under similar circumstances to foreseeable victims of their behavior

Remember: Where relevant, Ds physical characteristics are taken into consideration (e.g. blind D would have a standard of a reasonably prudent blind person)

Question 15

Negligence: Duty - Exceptions to General Standard of Care

Answer 15

1) PROFESSIONALS must exercise the KNOWLEDGE and SKILL of an average member of the profession;
2) CHILDREN must conform to standard of care of a child of LIKE AGE, EDUCATION, INTELLIGENCE, AND EXPERIENCE (UNLESS engaged in an adult activity);

Question 16

Negligence: Duty - Premises Liability Standards for Unknown Trespassers

Answer 16

Owed zero duty of care

Question 17

Negligence: Duty - Premises Liability Standards for Known Trespasser (Anticipated Trespasser) + Remember Natural Conditions + Tip to Remember Elements

Answer 17

(i) Condition must be ARTIFICIAL to trigger a duty, (ii) condition must be HIGHLY DANGEROUS, (iii) condition must be CONCEALED (not opened and obvious), and (iv) owner of property must have PRIOR KNOWLEDGE of condition

Remember: No duty for natural conditions on the property

Tip: Look for KNOWN MAN-MADE DEATH TRAPS

Question 18

Negligence: Duty - Premises Liability Standards for Licensee (Def + Duty) + Tip to Remember

Answer 18

Licensee’s enter land with express or implied permission, but for their own purpose (e.g. social guests)

Duty: Same duty as known trespassers (known man-made death traps) BUT ALSO all dangerous (moderately or slightly) artificial AND NATURAL conditions

Tip: Owners have a duty to protect licensees from ALL KNOWN TRAPS

Question 19

Negligence: Duty - Premises Liability Standards for Invitees (Def + Duty) + Tip

Answer 19

Invitees are those entering as members of the public or for a business purpose (e.g. customers)

Landowner’s duty is same as for licensees (all known traps) PLUS the duty to REASONABLY INSPECT for dangerous conditions

Tip: Owners owe invitees the duty of REASONABLY KNOWABLE TRAPS

Question 20

Negligence: Duty - Premises Liability Standards for Firefighters or Police Officers

Answer 20

Firefighters and Police Officers MAY NOT recover for any injury that is an INHERENT injury of THEIR JOB

Question 21

Negligence: Duty - Premises Liability Standards for Trespassing Kids (Attractive Nuisance Doctrine)

Answer 21

Owners owe reasonably prudent care to prevent injuries to trespassing children from artificial conditions on the land

Question 22

Negligence: Duty - Excusing Duties for Premises Liability

Answer 22

Notices that clearly warn others of dangers on property can excuse duty for premises liability for property owners (e.g. slippery when wet signs)

Question 23

Negligence: Duty - Criminal Statutes Creating Liability (Negligence Per Se) + Exception + Tip

Answer 23

Criminal statutes may serve to establish standard of care, if:

1) the P is within the class that the statute was intended to protect, and
2) the statute was designed to prevent the type of harm suffered

Except: 1) When statutory compliance would have been more dangerous than violation, and 2) If statutory compliance is impossible (e.g. motorist has heart attack)

Tip: Look for violations of traffic codes to meet negligence per se duty

Question 24

Negligence: Duties to Act Affirmatively + Example + Exceptions

Answer 24

There are no duties in the law that require citizens to act affirmatively

Example: There is no duty to rescue someone in peril

Exceptions: 1) If there is a pre-existing relationship there may be a duty to act reasonably (e.g. parent-child, employer-employee, innkeeper-guest)

2) If D is the one WHO CAUSED the peril, he has a duty to act reasonably, and
3) If a rescuer chooses to act, they must act reasonable

Question 25

Negligence: Negligent Infliction of Emotional Distress Types of Cases and Elements + Remember Establishing Duty

Answer 25

Near Miss Cases: P must prove he was within the ZONE OF DANGER and ordinarily must SUFFER PHYSICAL SYMPTOMS from the distress

Bystander Case: Negligent D causes serious injury or death to someone 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

Business Relationship: A relationship exists between the D and P under which the D’s negligence has great potential to cause emotional distress (e.g. hospital erroneously reports death of P’s family)

Remember: D must still have an established duty of care, either reasonable person standard or other

Question 26

Proving Breach on Essay + Tip

Answer 26

To prove someone breached their duty a P must show the FACTS/EVENTS of D’s breach and the REASON it was a breach of duty of care.

Tip: To prove breach use FACT + REASON

Question 27

Breach: Cost Benefit Analysis

Answer 27

If the cost of preventing the harm is outweighed by the probability and extent of the harm, then it may be considered a breach to not take that precaution

Question 28

Breach: Res Ipsa Loquitur Doctrine

Answer 28

P infer D breached duty without knowledge of action if: (i) the accident causing the injury is a type that WOULD NOT HAVE OCCURRED absent negligence, (ii) the D was in EXCLUSIVE CONTROL of the instrumentality causing the injury, and (iii) the injury was NOT ATTRIBUTABLE to P’s conduct

Question 29

Causation: Actual Cause (But-For Test)

Answer 29

P shows he would not have been injured BUT-FOR D’s actions

Question 30

Causation: Actual Cause - Joint Causes (Substantial Factor Test)

Answer 30

When two acts bring about an injury and EITHER ONE ALONE would have sufficed, EITHER of the acts is an ACTUAL CAUSE of the injury if: it was a SUBSTANTIAL FACTOR in bringing it about

Question 31

Causation: Alternative Causes

Answer 31

When TWO OR MORE acts were negligent but it is NOT CLEAR which was the actual cause, the BURDEN SHIFTS to each of the negligent actors to show that his negligence was NOT the actual cause

Question 32

Causation: Proximate Cause + Remember Four Areas of Precedent

Answer 32

The P’s injury must be a FORESEEABLE CONSEQUENCE of D’s actions

Remember: Courts have determined P’s injuries are ALWAYS a proximate cause of D’s actions in cases involving:

1) intervening NEGLIGENT MEDICAL TREATMENT,
2) intervening NEGLIGENT RESCUE,
3) intervening PROTECTION or REACTION forces, and
4) SUBSEQUENT DISEASE or ACCIDENT

Question 33

How to Prove Damages

Answer 33

P must show ACTUAL harm or injury to complete the prima facie case

Question 34

Damages: Egg Shell Plaintiff Doctrine

Answer 34

Plaintiff will recover for ALL HARM SUFFERED, even if it more than typically expected

Question 35

Negligence Defenses: Contributory Negligence

Answer 35

If P was negligent in some way, that negligence COMPLETELY PRECLUDES P’s recovery

Question 36

Negligence Defenses: Comparative Negligence + Pure v. Partial + Remember Default

Answer 36

Court REDUCES P’s ability to recover based on his negligence

Pure (Default) - A negligent P can recover damages reduced by the percentage of her fault, even if it was 90% negligent

Partial (or modified)- A negligent P can recover damages AS LONG AS her fault is NOT ABOVE 50%, anything over and P is barred from recovery

Question 37

Strict Liability: Animals (Domesticated v. Wild) + Remember Unique Requirement + Remember Safety Precautions for Wild Animals

Answer 37

Domesticated: Generally, no strict liability from injury by a domestic animal, UNLESS it is known to have vicious tendency

Remember: The vicious tendency MUST BE UNIQUE to that one animal

Wild: Owners are strictly liable from the beginning of ownership

Remember: Safety precautions DO NOT lower liability for owners of wild animals

Question 38

Strict Liability: Abnormally Dangerous Activities Definition + Tip for Typical Abnormally Dangerous Activities

Answer 38

Activity that: 1) creates a foreseeable risk of significant harm EVEN when reasonable care is exercised, and 2) uncommon in the community

Tip: Look for EXPLOSIVES, TOXIC/CHEMICAL material, and RADIATION/NUCLEAR energy

Question 39

Strict Liability: Product Liability Elements + Remember Types of Defects + Remember Presumption of Non-Alteration

Answer 39

1) D is a MERCHANT,

2) Product is DEFECTIVE,
(Remember: (i) manufacturing defect - product varies from its intended design, (ii) design defect - all products of the line have dangerous characteristics because of mechanical features, packaging, or inadequate warnings, and less dangerous alternative was ECONOMICALLY FEASIBLE, (iii) information defect - residual risks that cannot be designed out and is not obvious, it must have adequate warnings and instructions)

3) Product has not been altered since it left D’s hand
(Remember: There is a presumption that P has not changed product IF it went through ordinary channels of distribution)

4) P was making a foreseeable use of product at the time of injury

Question 40

Nuisance Doctrine + Remember Basis of Claim

Answer 40

The unreasonable interference with P’s ability to use and enjoy property

Remember: A nuisance may be based on intent, negligence, or strict liability

Question 41

Nuisance: Private v. Public

Answer 41

Private: a substantial, unreasonable interference with another person’s use or enjoyment of her property

Public: an act that unreasonably interferes with the health, safety, or property rights of the community

Question 42

Nuisance: Remedies

Answer 42

The usual remedy is damages, but injunctive relief may be available for a continuing nuisance

Question 43

Vicarious Liability Doctrine

Answer 43

The D may be vicariously liability for the tort of another based on the relationship between the defendant and the tortfeasor

Question 44

Vicarious Liability: Employer-Employee Relationship

Answer 44

The employer is liable for torts of an employee that occur WITHIN THE SCOPE OF EMPLOYMENT

Question 45

Vicarious Liability: Principal - Independent Contractor + Exceptions

Answer 45

The general rule is that a principal is NOT vicariously liable for the torts of an independent contractor, but broad EXCEPTIONS exist:

1) The independent contractor is engaged in INHERENTLY DANGEROUS activities,
2) The principal’s duty CANNOT BE DELEGATED because of public policy considerations

Question 46

Vicarious Liability: Automobile Owner - Driver + Exceptions

Answer 46

An automobile owner IS NOT vicariously liable for the negligence of the driver UNLESS the state has adopted:

1) A permissive use statute - imposes liability for the torts of ANYONE driving with permission), or
2) the family purpose doctrine - imposes liability for the torts of a family member driving with permission)

Question 47

Vicarious Liability: Parent-Child

Answer 47

NO VICARIOUS LIABILITY at all for a parent’s child

Question 48

Multiple Defendant Issues: Joint and Several Liability Doctrine

Answer 48

When two or more tortious acts combine to proximately cause an indivisible injury to the plaintiff, each tortfeasor is JOINTLY AND SEVERALLY LIABLE for the injury and P may recover for his entire damages from ANY tortfeasor

Question 49

Multiple Defendant Issues: Joint and Several Liability - Contribution

Answer 49

Contribution allows a tortfeasor who paid more than his share of the damages to recover the excess from other tortfeasor in proportion to their fault

Question 50

Survival Statutes

Answer 50

Preserve a victim’s cause of action after his death, EXCEPT for torts involving intangible personal interest (e.g. defamation)

Question 51

Wrongful Death Statutes

Answer 51

Permit a personal representative or surviving spouse to recover damages from a tortfeasor for loss of the decedent’s support and companionship

Question 52

Immunities: Intra-Family Tort Immunities + Exception

Answer 52

The old rule that one family member cannot sue another for personal injury is ABOLISHED in most states, EXCEPT that children generally cannot sue their parents for exercise of parental supervision

Question 53

Immunities: Governmental Immunities

Answer 53

Governments generally waive their sovereign immunity from suit for MINISTERIAL ACTS (acts performed at the OPERATIONAL LEVEL that do not require exercise of judgment), BUT have not waived immunity for DISCRETIONARY ACTS

Question 54

Defamation: Common Law Cause of Action Elements + Define Defamatory + Remember Death + Remember Publication Minimum

Answer 54

1) DEFAMATORY LANGUAGE concerning the P,
2) In a PUBLICATION, and
3) P suffers damages

Define: Defamatory means a statement purporting to be factual that damages the reputation of a person

Remember: This claim is unavailable for deceased people

Remember: Publication need only be communication of defamation to ONE PERSON, but the less people told the less damages owed

Question 55

Defamation: Libel v. Slander + Damages

Answer 55

Libel: Defamation in permanent form (writing, recorded, etc.). No damages need to be proved

Slander: Spoken words. Damages are presumed if within one of the four per se categories (business/profession, loathsome disease, crime of moral turpitude, or chastity of a woman).
Damages are NOT presumed for all other slander, and must offer evidence of economic harm

Question 56

Defamation: Public Officials or Figures (Constitutional Test)

Answer 56

If the P is a public official or figure:

1) The P must prove that the statement was false
2) Public officials must prove “actual malice”

Question 57

Defamation: Affirmative Defenses

Answer 57

1) Consent
2) Truth
3) Absolute Privilege (applies to communication between spouses OR statements in a judicial, legislative, or executive proceedings)
4) Qualified Privilege (matters in the interest of the publisher and/or the recipient, but can be lost if the statement is outside the scope of the privilege or made with actual malice)

Question 58

Privacy Claims: Appropriation + Exception + Remember Possibility of Ds

Answer 58

D uses P’s name or image for a commercial purpose

Exception: Newsworthiness

Remember: ANYONE has a claim for appropriation, not just famous people

Question 59

Privacy Claims: Intrusion + Remember REOP

Answer 59

An invasion of Ps SECLUSION in an offensive way as measured by a reasonable person (e.g. eavesdropping, intercepting emails, bugging homes)

Remember: P must have a reasonable expectation of privacy

Question 60

Privacy Claims: False Light + Tip

Answer 60

The widespread dissemination of a material falsehood about P that would be highly offensive to the average person

Tip: Look for accidental dissemination

Question 61

Privacy Claims: Disclosure + Remember Defense

Answer 61

Widespread dissemination of CONFIDENTIAL INFORMATION about the P that would be offensive to a reasonable person

Remember: 1) Qualified Immunity can protect information that benefits the public and 2) consent