Torts

Question 1

Negligence

Answer 1

A prima facie case a plaintiff must prove:

1) duty (question of law)
2) breach of that duty
3) causation
4) damages

Question 2

Premise Liability

Answer 2

Plaintiff must prove the elements of negligence: duty, breach, cause and harm.
Duty that possessor of land owes to an individual depends on the individuals status on the property, which can either be a trespasser, licensee, or invitee

Generally, premises possessor owes a duty to invitees to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the law.
-duty generally does not require removal of open and obvious dangers

Question 3

Duty of Care Owed to Participants in Recreational Activities

Answer 3

In Michigan, standard is reckless or intentional misconduct for co-participants I in a sport or recreational activity

Question 4

Michigan Gov’tal Immunity

Answer 4

General rule: gov’t agency is immune from tort liability if it is engaged in the exercise or discharge go a gov’t function

Liability of agents, employees of agency: immune from tort liability if their injury occurred in the course of employment and:

• the individual reasonably believes he is acting within the scope of his authority
• the agency is engaged in the exercise or discharge of a gov’t function
• individual’s conduct does not amount to gross negligence that is the proximate cause of the injury or damage

Agency = immune 
Agent = immune unless gross negligence

Question 5

Public Officials Immunity

Answer 5

Judge, legislators and elective or highest appointive executive official of all levels go gov’t are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his judicial, legislative or executive authority

Question 6

Battery

Answer 6

A plaintiff must demonstrate that the defendant:

• acted with intent to cause a harmful or offensive contact
• of another another person
• or knew, with substantial certainty that such contact would result

Harm required to prove: harmful or offensive contact

Question 7

Assault

Answer 7

A plaintiff must demonstrate defendant:

• acts intended to cause a harmful or offensive contact
• or an imminent apprehension of such contact and
• therefore plaintiff was put in imminent apprehension of such contact

Question 8

Attractive Nuisance

Answer 8

Duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous conditions on landowners property (usually artificial conditions)

To establish plaintiff must show:

• dangerous condition on the land that the owner should have been aware of
• the owner knows or should have known the children frequent the vicinity of the condition
• the condition is likely to cause the injury
• the expense of remedying the situation is slight compared with the magnitude of the risk

Question 9

Negligence Per Say

Answer 9

Violation of the statute means plaintiff must only prove causation, not breach of duty 
-must show that plaintiff was in class of people that the statute was trying to protect and received the type of harm that statute was trying to prevent

Question 10

Intentional Infliction of Emotional Distress

Answer 10

Plaintiff must establish:

1) extreme and outrageous conduct by defendant
2) severe emotional distress in plaintiff
3) intent or recklessness
4) causation

Question 11

Defamation

Answer 11

To prove:

• defamatory statement about plaintiff
• unprivileged publication of the statement to third party
• fault
• damages
• if matter of public concern constitution requires 2 additional parts:
• -falsity of the defamatory language
• -fault on part of defendant

Question 12

Slander

Answer 12

• Spoken defamatory statement
• Damages are presumed if slander is in one of the 4 ‘slander per se’ categories (CLUB)
• -crime of moral turpitude
• -loathsome disease
• -unchastity if plaintiff is woman
• -business or profession (something that reflects badly on plaintiffs…)

-If slander is not ‘per se’ then plaintiff must prove actual damages by showing economic harm

• In Michigan, in order to recover presumed damages, plaintiff also need to prove that the statement has to do with committing a crime or being unchaste.
• -If it does not fall into one of those ‘C’ or ‘U’ categories above plaintiff must prove actual damages.