Torts

Question 1

Distinction b/n trespass to land and private nuisance

Answer 1

Trespass to land is interference with exclusive possession of land whereas private nuisance concerns interference w/ use or enjoyment. Typically, if there is a tangible invasion, trespass to land applies; if there is an intangible invasion (e.g., odor; vibration), go with private nuisance

Question 2

Trespass to Land

Answer 2

(1) Act of tangible, physical invasion of the real property of another; (2) intent to bring about physical invasion; and (3) causation.

Substantial certainty is sufficient for intent. Mistake of ownership is not a defense.

Question 3

Private Nuisance

Answer 3

Substantial and unreasonable interference with another person’s use/enjoyment of her property.

Interference is substantial if a reasonable person in the community would find it annoying, offensive, or inconvenient. Hypersensitive-π will lose.

Interference is unreasonable if the injury outweighs the utility of the conduct.

Question 4

Is non-disclosure of the RISKS of a medical procedure and subsequent operation characterized as negligence or battery?

Answer 4

Negligence!

Question 5

Negligence Per Se

Answer 5

Criminal statute can replace duty of care where: (1) π is within the class of persons the statute is designed to protect and (2) the injury suffered is of the type the statute was designed to avoid.

Exceptions (excuse for violation): (i) compliance would cause more danger than violation; (ii) compliance was outside ∆’s control

Question 6

Is a parent vicariously liable for the acts of her child?

Answer 6

Common law rule: No! However, a parent can be held liable for her own negligence in allowing the child to do something that causes injury to person/property (e.g., leaving child unattended in parking lot and kid damages cars w/ shopping cart).

Question 7

Landowner/occupier duties

Answer 7

Unknown trespasser
––No duty

Known/anticipated trespasser
––Known manmade deathtraps

Trespassing kids
––liable if (1) ∆ should have known of dangerous condition (2) ∆ should have known that kids frequent the vicinity of the dangerous condition (3) steps to prevent injury are sight vis-a-vis the magnitude of the risk

Licensees (social guests)
––Known traps (non obvious dangerous conditions)

Invitees (persons w/business interest)
––Known or reasonably knowable traps

Question 8

Joint and Several Liability + Contribution

Answer 8

Where two or more tortious acts combine to produce an indivisible injury, π can recover the entire judgment from one ∆.

Most states follow comparative contribution. If a ∆ pays for more than his share of liability, he can sue ∆2 for contribution for the amount he paid over and above his share. A minority of states follow equal shares contribution, where a party is liable in contribution for an equal share, regardless of his degree of fault.

Question 9

Products Liability: Negligence

Answer 9

Duty: all foreseeable πs
Breach: negligent conduct that leads to supplying of a defective product
––Manufacturer-∆: for manufacturing defect use res ipsa; for design defect, ask whether ∆ should have known the product was dangerous as designed
––Intermediary-∆: ∆ purchased from reputable manufacturer + failed to make cursory inspection which would have revealed defect
Causation + Damages

Question 10

What are the vicarious liability situations to know? What rules apply?

Answer 10

Respondeat Superior (employer-employee)
––Employer liable for torts committed by EE w/in scope of employment.  Detour (minor deviation) v. Frolic (substantial deviation).  Employer NOT liable for EE's intentional torts unless (i) nature of business; (ii) motivated to further employer's interest; (iii) authorized/ratified

-Independent Contractor // Principal
––Principal is generally NOT vicariously liable. Exceptions: (1) non-delegable duty; (2) inherently dangerous activity

-Partnership // Partner | Joint Venture // Member
––Vicariously liable for acts of partner or member if within ordinary course of business

-Car owner // driver
––Owner is generally NOT vicariously liable.

-Bailor // Bailee [lending stuff]
––Bailor is generally NOT vicariously liable

-Parent // Child
––Parent is NOT vicariously liable for torts of child at CL
––But, importantly, like with the other relationships, the parent can be liable for her own negligence

-Tavernkeeper
––@ CL: vendor not liable for acts of intoxicated patron
––Dram Shop Act: creates COA for 3P against vendor –> not based on vicarious liability, but rather the vendor’s negligence

Question 11

What to look for when considering vicarious liability?

Answer 11

(1) is there a relationship that supports vicarious liability?
(2) does an exception apply?
(3) if not vicariously liable, can the principal be held liable for her own negligence (e.g., negligent supervision; negligent hiring; negligent entrustment)

Question 12

When are ∆s jointly and severally liable?

Answer 12

When their acts combine to cause an indivisible injury. Additionally, when ∆s act in concert and produce a divisible injury, they are jointly and severally liable.

Question 13

Do contribution and indemnity affect how much a plaintiff receives in suit by π v. ∆1 and ∆2?

Answer 13

No! If ∆1 and ∆2 are jointly and severally liable, π can recover the full amount from ∆1. ∆1 can then seek contribution from ∆2.

Question 14

Contribution + two types

Answer 14

Where one ∆ has paid more than his fair share in damages, he can file an action for contribution against the other tortfeasor.

• Comparative [majority]: ∆ will be responsible for his portion of the liability based on relative fault
• Equal shares [minority]: joint tortfeasors pay equal amount, irrespective of fault

Question 15

Survival Actions

Answer 15

Tort action that can survive death of the party

Applies to property torts and personal injury

Does NOT apply to privacy torts or defamation

Question 16

Wrongful Death

Answer 16

Method of recovery for spouse/next of kin resulting from pecuniary injury caused by death

Question 17

Can a decedent’s creditors go after a wrongful death award?

Answer 17

No

Question 18

Negligence: prima facie case

Answer 18

To establish a prima facie case, π must show (1) ∆ owed π a legal duty to conform to a specific standard of conduct; (2) ∆ breached that duty; (3) factual cause; (4) proximate cause; and (5) damage.

Question 19

Negligence: duty of care (generally) + majority/minority distinction

Answer 19

A person owes a duty of care to all foreseeable plaintiffs.
––Under the majority view, a plaintiff is foreseeable if he is within the zone of danger.
––Under the minority view, a duty is owed to all persons who are injured as a proximate result of defendant’s conduct.

Question 20

Is a rescuer a foreseeable π?

Answer 20

Yes. Danger invites rescue.

Question 21

Negligence: reasonable person standard

Answer 21

(1) Duty to act like that of a reasonably prudent person in conducting one’s activities.
(2) This is an OBJECTIVE standard.
(3) One’s MENTAL abilities are NOT taken into account, but the reasonable person does assume defendant’s PHYSICAL characteristics.
(4) One who has SUPERIOR knowledge or skill is required to exercise that experience.

Question 22

Negligence: professional standard of care

Answer 22

Professional is required to possess the SKILL + KNOWLEDGE of a member of the profession in GOOD STANDING.

Question 23

Negligence: child standard of care

Answer 23

(1) A child will be held to the standard of a child of like AGE, EXPERIENCE, EDUCATION, and INTELLIGENCE.
(2) This is a SUBJECTIVE standard.
(3) Child under 5 lacks capacity to be negligent.
(4) Child engaging in adult activity may be required to conform to adult standard of care.

Note: child w/ superior knowledge or skill will be required to exercise that experience

Question 24

Negligence: common carrier/innkeeper standard of care

Answer 24

Common carriers/innkeepers must exercise a VERY HIGH degree of care (i.e., liable for slight negligence).

Question 25

Negligence: bailor/bailee standard of care

Answer 25

Bailee owes bailor…
––low standard of care if for sole benefit of bailor
––high standard of care if for sole benefit of bailee
––ordinary standard of care if for mutual benefit

Bailor owes bailee…
––if for sole benefit of bailee, must inform of known dangerous defects in chattel
––if bailment for hire, must inform of knowable defects in chattel

Question 26

Negligence: standard of care in emergency situations

Answer 26

Person must act as a reasonable person would under the same emergency conditions

Question 27

Negligence: standard of care for owner/occupier situations

Answer 27

• Unknown Trespasser: none
• Known Trespasser: known manmade deathtraps
• Trespassing Kids: (1) owner should have known of dangerous condition; (2) owner should have known that kids frequent vicinity of condition; (3) burden of remedying was slight vis-a-vis magnitude of risk
• Licensee (social guest): known traps
• Invitee (business guest): knowable traps
• Recreational Land User: owner only liable for willful/malicious failure to warn or make safe

Question 28

Negligence: statutory standard

Answer 28

• Criminal statute
• Can replace default RP standard of care
• (1) π must be within the class of persons the statute was designed to protect
• (2) π’s injuries must be within the class of harm the statute was designed to protect against
• Defenses: (i) compliance was beyond ∆’s control; (ii) compliance would have been more dangerous than violation

Note: compliance w/ statute does not necessarily establish due care

Question 29

Negligence: NIED

Answer 29

Near-Miss: (1) π was within zone of danger and (2) π suffered emotional distress, manifesting in physical symptoms

Bystander: (1) π was present at the scene; (2) π perceived the injurious event; (3) π has close relationship to person injured; (4) π suffered emotional distress

Question 30

Is breach an issue for trier of fact?

Answer 30

YES!

Question 31

Res ipsa

Answer 31

(1) accident is of a type that is would not ordinarily occur unless SOMEONE was negligent; (2) negligence is attributable to ∆ (usually shown by exclusive control over instrumentality)

Question 32

Factual cause: tests

Answer 32

But for: π’s injury would not have occurred but for ∆’s conduct. This test is used when multiple negligent acts lead to π’s injury, each of which standing alone would have been INSUFFICIENT to cause π’s injury.

Substantial Factor: This test is used when multiple negligent acts lead to π’s injury, each of which standing alone would have been SUFFICIENT to cause π’s injury. There is factual cause when a ∆’s act was a substantial factor in causing π’s injury.

Alternative Causes: This test is used when there are multiple negligent acts, only one of which causes π’s injury, but π cannot determine which one caused the injury. Where applicable, this test will result in the burden of proof shifting from π to the ∆s, where each ∆ will have to put forward proof showing that her negligence was not the actual cause.

Question 33

Proximate cause: general rule

Answer 33

Proximate cause operates as a limitation on liability–i.e., even if a ∆ was the actual cause of π’s injury, there is still a question of whether it is fair to hold ∆ liable for the consequences of his acts. The focus of the inquiry is foreseeability. Generally, a defendant is liable for the harmful results that are the normal incidents of his acts and incidents within the increased risk of his acts.

∆ is liable for FORESEEABLE HARMFUL RESULTS

Question 34

Proximate cause: indirect cases

Answer 34

An indirect case involves some intervening force. Whether ∆ is liable depends on the foreseeability of the intervening force and the foreseeability of the result.

Foreseeable IF + Foreseeable Result = liable
––Common foreseeable IFs: (i) negligent rescuer; (ii) subsequent med mal; (iii) acts of protection; (iv) reactions to ∆’s negligence; (v) subsequent diseases; (vi) subsequent accident substantially caused by original injury
––∆ is also on the hook for negligence, ITs, and crimes of 3Ps + Acts of God

Unforeseeable IF + Foreseeable Result = usually liable
––i.e., ∆’s negligence increased the risk of foreseeable harmful result
––∆ NOT liable where unforeseeable IF = crime or IT

Foreseeable IF + Unforeseeable Result ≠ liable

Unforeseeable IF + Unforeseeable Result ≠ liable
––i.e., a superseding cause

Question 35

Collateral Source Rule

Answer 35

Plaintiff’s damages will NOT be reduced by virtue of receiving benefits from another source. The prototypical example of this is that π’s health insurance benefits do NOT offset defendant’s liability.

Question 36

Assumption of risk

Answer 36

(1) π knew of the risk and (2) π voluntarily proceeded in face of risk

Can be implied where risk is one that an average person would clearly appreciate

Not a defense to intentional torts

Question 37

Transferred intent applies to all intentional torts, EXCEPT…

Answer 37

IIED

Conversion

Question 38

What methods of confinement/restraint are INSUFFICIENT for false imprisonment?

Answer 38

• moral pressure

- FUTURE threats

Question 39

IIED: when is conduct extreme and outrageous?

Answer 39

-exceeds all bounds of decency

Note: conduct that does not meet that standard CAN be sufficient if (a) continuous; (b) directed at children, elderly, pregnant, known sensitivities; (c) common carrier/innkeeper

Question 40

Elements of Bystander IIED

Answer 40

(1) ∆’s act of extreme and outrageous conduct
(2) intent or recklessness
(3) π was close relative and was present + ∆ knew this
––this satisfies causation
(4) severe emotional distress

Question 41

What intentional torts require damages?

Answer 41

• IIED (severe emotional distress)
• Trespass to Chattels (at least to possessory right)
• Conversion (warranting FMV of chattel)

Question 42

Is mistake as to ownership a defense to trespass to chattel or conversion?

Answer 42

No. The intent that is required is the intent to interfere with the possessory right. So, accidentally spilling a drink on a computer ∆ thought was his, but it was actually someone else’s, will not result in liability. But, if ∆ picked up a laptop which he thought was his, and threw it across the room in an act of frustration, that will result in liability, b/c mistake of ownership is not a defense and ∆ intended to throw the laptop across the room.

Question 43

What showing of damages is required for privacy torts?

Answer 43

Emotional distress/mental anguish is sufficient. π does NOT have to plead and prove special damages

Question 44

For false light, under what circumstances does π have to show actual malice?

Answer 44

When the subject is a matter of public concern.

Question 45

Public nuisance

Answer 45

Substantial and unreasonable interference with health, safety, or property rights of the community

Question 46

What do I need to know for strict liability

Answer 46

Prima Facie case: (1) ∆ had absolute duty to make safe based on nature of his activity; (2) actual and proximate cause; (3) damages (harm resulting from the dangerous characteristics)

Animals: SL for wild animals; NO SL for domestic animals (unless owner has knowledge of dangerous propensity not common to species); SL not available for trespassers

Abnormally dangerous activity: (1) foreseeable risk of serious harm even when reasonable care is exercised; (2) activity was not common in community
––As with SL generally, harm has to result from the dangerous characteristics

AoR is a defense to SL

Question 47

Intentional Misrepresentation or Fraud: Elements

Answer 47

To establish a prima facie case of intentional misrepresentation or fraud, plaintiff must prove…

(1) misrepresentation by ∆
(2) scienter (knowing/reckless disregard)
(3) intent to induce π’s reliance on the misrepresentation;
(4) causation (actual reliance on the misrepresentation);
(5) justifiable reliance on the misrepresentation; and
(6) damages

Question 48

Negligent Misrepresentation: Elements

Answer 48

Negligent misrepresentation requires…

(1) a misrepresentation made by defendant in a business or professional capacity
(2) breach of duty toward that particular plaintiff
(3) causation
(4) justifiable reliance; and
(5) damages