Torts

Question 1

trespass

Answer 1

occurs when the defendant’s intentional act causes a physical invasion of another’s land. The defendant need only have the intent to enter the land, not the intent to commit a wrongful trespass.

Question 2

duty of care of professional person

Answer 2

expected to exhibit the same skill, knowledge, and care as an ordinary professional in the same community.

Question 3

duty of care of innkeepers

Answer 3

highest duty of care in performing

Question 4

duty of care ordinary person

Answer 4

care of a reasonably prudent person under the same circumstances.

Question 5

recovery for negligence

Answer 5

In general, a duty of care is owed to all foreseeable persons who may foreseeably be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances. The plaintiff must prove actual harm, i.e., personal injury or property damages, in order to complete the requirements of liability for negligence. Unlike actions for intentional torts, nominal damages are not recoverable in negligence actions. In addition, a plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover such loss through a negligence action. Therefore, the company cannot recover its economic damages in this case as it did not suffer any related personal injury or property damage.

Question 6

failure to warn

Answer 6

failure to warn theory is essentially the same as a design defect claim, but the defect in question is the manufacturer’s failure to provide an adequate warning related to the risks of using the product. A defect exists if there were foreseeable risks of harm, not readily recognized by an ordinary user of the product, which could have been reduced or avoided with reasonable instructions or warnings. Had the espresso machine included a visible warning that the unit could get dangerously hot, an ordinary user would have been on notice to treat the unit with caution. The warning on the packaging was insufficient to notify the guest of the risk of touching a simple square box.

Question 7

IIED

Answer 7

1. intent
2. extreme & outrageous conduct - exceeds the possible limits of human decency
   - in position of authority or influence
   - member of a group with a known heightened sensitivity (e.g., young children, pregnant women, or elderly persons).
3. Third-party victims
   - immediate FAMILY who contemporaneously PERCEIVES
   - BYSTANDER who contemporaneously perceives the conduct, if the distress results in BODILY INJURY.
4. damages
   - If the plaintiff is HYPERSENSITIVITY, however, and experiences severe emotional distress unreasonably, then there is no liability UNLESS the defendant KNEW of the plaintiff’s heightened sensitivity.

Question 8

False imprisonment

Answer 8

(i) INTENDING to confine or restrain another within boundaries fixed by the actor;
(ii) those actions directly or indirectly result in such confinement; and
(iii) the other is conscious of the confinement or is harmed by it.

Question 9

vicariously liable OR

parent’s duty to exercise reasonable care

Answer 9

The general rule is that parents are not vicariously liable for their minor child’s torts. Exceptions to this general rule include situations in which the child commits a tort while acting as the parents’ agent, or when a statute establishes the parents’ liability. Parents, however, are liable for their own negligence with respect to their minor child’s conduct. A parent is under a duty to exercise reasonable care to prevent a minor child from intentionally or negligently harming a third party, provided the parent has the ability to control the child, and knows or should know of the necessity and opportunity for exercising such control. The teenager likely did not have a dangerous tendency to speed, but even if he did, the accident was caused by him falling asleep at the wheel, which he had never done before.

Question 10

• Contributory negligence: traditional rule

Answer 10

At COMMON LAW, and in a handful of states, the plaintiff’s contributory negligence (i.e., failure to exercise reasonable care for her own safety) is a COMPLETE BAR to recovery, regardless of the percentage that the plaintiff’s own negligence contributed to the harm.

Question 11

• Pure comparative negligence

Answer 11

plaintiff’s full damages are calculated by the trier of fact and then reduced by the proportion that the plaintiff’s fault bears to the total harm (e.g., if the plaintiff’s full damages are $100,000, the plaintiff is 80% at fault, and the defendant is 20% at fault, then the plaintiff will recover $20,000).

MBE DEFAULT

Question 12

• Modified or partial comparative fault

Answer 12

i) If the plaintiff is less at fault than the defendant, then the plaintiff’s recovery is reduced by his percentage of fault, just as in a pure comparative-fault jurisdiction;
ii) If the plaintiff is more at fault than the defendant, then the plaintiff’s recovery is barred, just as in a contributory-negligence jurisdiction;
iii) if equal, then 50% (majority)

Question 13

Joint and Several Liability

Answer 13

each of two or more tortfeasors who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm.

Question 14

conversion

Answer 14

1. Intentional act
   - Must intent to commit act that interferes (intent to damage not necessary)
   - Mistake not defesne
   - transferred intent N/A; must intend to control property
2. Interference with P’s right of possession
3. so serious, that deprives P of use of chattel
4. damages (FULL VALUE OF PROPERTY OR REPLEVIN)

Question 15

duty to trespasser

Answer 15

Land possessors owe a duty toward discovered or anticipated trespassers to warn or protect them from concealed, dangerous, ARTIFICIAL conditions.

There is NO duty to warn of NATURAL conditions or artificial conditions that do not involve risk of DEATH or SERIOUS bodily harm.

Question 16

automobile duty to passengers (and guest statute)

Answer 16

In most jurisdictions, an automobile driver owes a duty of ORDINARY reasonable care to all passengers, including guests (i.e., individuals who do not confer an economic benefit for the ride on the driver).

However, a minority of states distinguish between the two with “GUEST STATUTES,” which impose only a duty to REFRAIN FROM GROSS or WANTON and willful misconduct with respect to a guest. Here, the driver was merely negligent, and therefore the passenger would not be able to recover in a guest statute jurisdiction. (very low standard)

Question 17

To prove negligence per se

Answer 17

To prove negligence per se,

(1) there must be a regulatory statute or ordinance that the defendant violates by failing to perform that duty.
(2) Additionally, the plaintiff must be in the class of people the statute intends to protect and
(3) the harm must be of the type the statute was intended to protect against.

Question 18

Negligent Infliction of Emotional Distress (NIED)

Answer 18

Zone of danger

• was within zone of danger; threat of physical impact caused emotional distress
• physical symptoms

Bystander recovery

• closely related;
• present at scene; and
• personally observed or perceived injury

Special relationship
-no threat of physical impact of physical symptoms required (e.g. mishandling a corpse)

Question 19

force in scope of employment (vicarious)

Answer 19

When force is inherent in the employee’s work, the employer may be responsible for injuries the employee inflicts in the course of his work.

Question 20

Proof of negligent infliction of emotional distress

Answer 20

if the plaintiff demonstrates that he was within the “zone of danger” of a threatened physical impact,

that he feared for his own safety because of the defendant’s negligence, and

the threat of physical impact caused emotional distress.

• (if lack of intention for IIED, look for NIED)

Question 21

Trespass to Chattels

Answer 21

i) Dispossessing the plaintiff of the chattel; or
ii) Using or intermeddling with the plaintiff’s chattel.

Trespass to chattels requires that the plaintiff show ACTUAL HARM to or deprivation of the use of the chattel for a substantial time.

Question 22

Alternative causation

Answer 22

If the plaintiff’s harm was caused by (i) one of a small number of defendants—usually two and almost never more than four or five, (ii) each of whose conduct was tortious, and (iii) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff’s harm.

Question 23

res ipsa loquitor, a plaintiff must prove what?

Answer 23

i) The accident was of a kind that ordinarily does not occur in the absence of negligence;
ii) It was caused by an agent or instrumentality within the exclusive control of the defendant; and
iii) It was not due to any action on the part of the plaintiff.

In establishing that the accident was of a kind that ordinarily does not occur in the absence of negligence, the plaintiff need not conclusively exclude all other possible explanations. It is enough that the facts proved reasonably permit the conclusion that negligence is the more probable explanation.

Question 24

intentional misrepresentation

Answer 24

1. the plaintiff must establish a misrepresentation by the defendant,
2. scienter,
   - defendant must have known the representation to be false or must have acted with reckless disregard as to its truthfulness.
3. intent to induce the plaintiff’s reliance,
4. justifiable reliance by the plaintiff,
5. and ACTUAL ECONOMIC damages.

Question 25

assault

Answer 25

1. conduct or other circumstances (mere words not enough)
2. reasonable apprehension and awareness of act or threat.
3. imminent threat of harm (without significant delay)
4. intent

[No proof of actual damages is required.]

Question 26

trespass to land

Answer 26

1. INTENT to enter land OR cause physical invasion
   - e.g. intent to throw ball on land or was it accidental?
2. Physical invasion
3. Proper P
4. Necessity as defense
   - private: qualified, still liable for ACTUAL damages
   - public: absolute privilege, not liable for damages

Question 27

defense against negligence

Answer 27

showing of reasonable care

breach of duty occurs when the defendant departs from the conduct expected of a reasonably prudent person acting under similar circumstances. showing reasonable care shows duty was not breached.

Question 28

animals trespassing

Answer 28

owner of any animal, wild or domestic (other than a household pets) is strictly liable for any reasonably foreseeable damages caused by the animal while trespassing on another’s land. Strict liability does not extend to the owner of the land on which the animals are kept, even when the animals are on the land with the landowner’s permission

Question 29

battery

Answer 29

1. harmful of offensive contact
2. to person of another
3. causation (direct or indirect)
4. D’s intent
   - single intent (majority)
   i. intends to bring about the contact
   ii. D need not intend that contact is harmful
   - double intent
   i. intends to bring about the contact AND
   ii. intend that contact is harmful of offensive

• analyze intent as LAST prong to better see tricky questions.
• recklessness NOT a prong

Question 30

reasonable force in defense of others

Answer 30

one is justified in using reasonable force in defense of others upon reasonable belief that the defended party would be entitled to use self-defense.

Question 31

private nuisance for rare disorder

Answer 31

A substantial interference is one that would be offensive, inconvenient, or annoying to a normal, reasonable person in the community. A person with special sensitivities can recover only if the average person would be offended, inconvenienced, or annoyed.

Question 32

physicians discussing risk of medication

Answer 32

Physicians are under a specific obligation to explain the risks of a medical procedure to a patient in advance of a patient’s decision to consent to treatment. Failure to comply with this “informed consent” doctrine constitutes a breach of the physician’s duty owed to the patient and is actionable as medical malpractice (medical negligence). By failing to discuss the patient’s allergies, and the risk of death from the eggs in the vaccine, the doctor breached his duty to the patient to obtain informed consent.

Question 33

confining wild animal

Answer 33

Strict liability ALSO applies to an injury caused by a plaintiff’s fearful REACTION to the SIGHT of an UNRESTRAINED wild animal.

In this case, although the defendant owned a wild animal, she is not strictly liable for the injury caused by the plaintiff’s fearful reaction to the sight of the alligator because the alligator was not roaming free, but instead was confined within a pen. Consequently, the defendant is not liable to the plaintiff in negligence, nor is she strictly liable, because the alligator was properly confined.

Question 34

third-party claims when in self defense

Answer 34

When a person using force in self-defense unintentionally harms an innocent third party, the person is not liable for injuries to the third party that occur while the person is acting in self-defense, SO LONG AS those injuries were ACCIDENTAL, rather than deliberate, and the person was NOT NEGLIGENT with respect to the third party.

Question 35

dram shop laws

Answer 35

man goes to three bars. drunk at all three. first bar may be liable.

e.g.
The attorney’s drunk driving was a foreseeable continuing consequence of Bar A’s negligent activities. Thus, Bar A can be held liable for the accident, because its actions were a “substantial factor” in causing the neighbor’s injuries. Bar A may not escape liability simply because other negligent actors exist

Question 36

economic loss without any related personal injury

Answer 36

A plaintiff who suffers only economic loss without any related personal injury or property damage CANNOT recover such loss through a NEGLIGENCE action.

Question 37

in comparative negligence, can one use defense of assumption of risk?

Answer 37

In a comparative negligence jurisdiction, assumption of the risk is not recognized as a separate defense—it has been merged into the comparative-fault analysis and merely reduces recovery. The plaintiff’s awareness of the risk of her conduct is generally taken into account in determining the degree to which she is at fault, but it can also be considered in determining the reasonableness of the plaintiff’s or the defendant’s actions.

Question 38

defamatory statement made after death

Answer 38

A deceased person cannot legally be defamed. The estate of the deceased official cannot maintain an action for defamation because the defamatory statement was made after the official’s death