Torts

Question 1

Parents regularly encourage an aggressive 6-year-old to be tough. he purposely hits another kid. Is the 6-year-old liable?

Answer 1

yes, kids as young as 4 can be when they intentionally harm another

Question 2

**what’s negligence standard for kids?

Answer 2

knew or should’ve known acts were wrongful

Question 3

if wife is told borrowed car’s breaks don’t work (but driver-husband doesn’t know), and driver-husband gets into accident, is he partly liable?

Answer 3

no, wife’s negligence here not imputed to husband. he’ll get full recovery if victim violated traffic laws and he didn’t (even though he didnt break, since he was unaware of broken breaks)

Question 4

gas company designed storage facility for dangerous chemical, construction company that specializes in constructing those facilities constructed this one. explosion due to design injured a farmer. can farmer successfully sue construction company?

Answer 4

yes because explosion resulted from defect that construction company should’ve been aware of (since they specialize in constructing these kind)

Question 5

**for abnormally dangerous chemical (where even reasonable care isn’t enough), is company strictly liable for any harm caused by the chemical?

Answer 5

no, only to foreseeable Ps

Question 6

is pecuniary loss required for libel?

Answer 6

no

Question 7

is exclusive control relevant for strict liability

Answer 7

no, that’s for res ipsa loquitur (negligence inference)

Question 8

does the commission of a criminal act often supersede the liability of the OG negligent person?

Answer 8

yes (eg negligence of not turning on lock alarm doesn’t contribute to likelihood of crime happening)

Question 9

**when will D’s negligence (no construction zone lights) be liable for the subsequent criminal acts of a 3rd party?

Answer 9

if the criminal acts of a 3rd party were reasonably foreseeable (eg not having construction lights when u should’ve in HIGH CRIME NEIGHBORHOOD, then truck gets stuck because it couldn’t see, and gets robbed –> lack of lights = potentially liable for thefts too lol

Question 10

**for defamation you need ___

Answer 10

actual malice -> liar must KNOW that the statement is false. not investigating yet honestly believing it’s true is protected..

Question 11

can manufacturer be sued for misrepresentation for promises made on packaging?

Answer 11

yes, like saying a product is safe and spill proof, but then child trips cord and it falls apart (even if no safer design possible), P can sue

Question 12

when P shows D violated statute, thus establishing prima facia case of negligence (driver had heart attack and crossed center lane), can this negligence be rebutted?

Answer 12

yes! eg heart attack. so not liable because impossible to not break statute

Question 13

**wrongful birth suit

Answer 13

asserted by mother when, but-for D Physician’s negligent testing/counseling re pregnancy, the mother would’ve terminated pregnancy to avoid birth of child w/ serious defects

Question 14

does assumption of the risk normally bar recovery?

Answer 14

no, typically only REDUCES recovery – to bar recovery for negligence, assumption of the risk must be substantially express

Question 15

nuisance = __ and __ interference w/ use and enjoyment

Answer 15

U.S.

unreasonable and substantial

Question 16

could you recover damages for nuisance suit?

Answer 16

yes, especially if tangible harm to land results in diminution of land’s value

Question 17

car manufacturer created a high-powered sports car yet failed to equip it with high-speed capability tires. what’s the problem?

Answer 17

car’s unreasonably dangerous – so SL may be applied if manufacturer doesn’t give adequate warning re: tires needed for high speeds – because P’s prolonged use of car at high speed is foreseeable use

although the manual warned that high-capacity tires were needed to drive it safely at super high speed, the manual did NOT warn that the car was NOT equipped w/ those tires

Question 18

company negligently caused fire that destroyed man’s restaurant. can man collect property + emotional damages?

Answer 18

no emotional because law does not recognize a claim for emotional distress incident to negligently caused property loss.

physical injury/manifestation required for emo if incident to negligently caused property loss

Question 19

P is partly responsible for crash. Contributory negligence there bars recovery. In what situation can P still recover?

Answer 19

if D had last clear chance to avoid the accident yet didn’t = D’s liable for negligence

Question 20

**P suffered flooding due to railroad and city’s negligence re: their storm drains. Flooding would not have occurred if either of the two drains had been maintained. P sued railroad only. Evidence in case established that the failures of the two drains were caused by the respective negligence of the city and railroad. P should recover nothing from railroad, half, or all?

Answer 20

all because but-for the railroad’s negligence, no flooding would’ve occurred

but-for test is satisfied when several acts combine to cause the injury, but none of the acts standing alone would’ve been enough

Question 21

foreseeable harm resulting from pet’s abnormally dangerous propensity known to owner = what level of liability?

Answer 21

strict liability

Question 22

for battery, the instrumentality of the intentional touching (a blinding spray on one’s face in a store if triggered by trying to open bolted doors) need not be done personally by D (store) if D (store) set into motion an action w/ the purpose/knowledge that offensive/harmful touching would result. so is it battery?

Answer 22

yes even though P’s actions triggered it, because D set the offensive touching into motion by installing the spray that’ll likely result in offensive contact

Question 23

which of these would defeat a battery claim against hallucinating, mentally ill person?

D didn’t understand his act was wrongful
D didn’t desire to harm P
D didn’t know he was striking a person
D thought P was about to attack him

Answer 23

D didn’t know he was striking a person, because that would defeat the intent necessary for battery, which requires harmful/offensive contact WITH THE PLAINTIFF’S PERSON

doesn’t matter whether he didn’t understand his act was wrongful - if u intended to do touch a person, too bad

Question 24

does mental disability generally provide immunity for intentionally tortious conduct?

Answer 24

no

Question 25

Even in jurisdictions that follow common law contributory negligence, P can mitigate/eliminate his own negligence by proving that…

Answer 25

D had the last clear chance to avoid injuring P but failed to

Question 26

assume which negligence applies?

Answer 26

pure comparative

Question 27

if bar question says “assume traditional defenses based on P’s conduct apply,” then you can consider which defense?

Answer 27

contributory negligence (also last clear chance)

Question 28

elements of intentional infliction of emotional distress

Answer 28

D’s intentional or reckless
extreme and outrageous conduct
that causes P severe emotional distress

Question 29

does assault require that P actually had apprehension of an imminent bodily contact, or that the action would cause a reasonable person to apprehend?

Answer 29

requires that P herself had an apprehension (so if she knows revolver is unloaded and isn’t scared, no assault)

Question 30

**does trespass to chattels require harm/substantial deprivation of use, intent to do that, or both?

Answer 30

just harm/substantial deprivation of use (touching a dog w/o injury isn’t enough)

Question 31

**can a five year old have the requisite intent to commit an intentional tort?

Answer 31

yes

Question 32

can D use reasonable force to prevent/end trespasser’s intrusion upon land / to protect his property?

Answer 32

yes, but cannot use force that that threatened serious bodily injury unless he himself was in danger of serious bodily injury

Question 33

9/14

Answer 33

9/14

Question 34

is intent needed for battery? what kind?

Answer 34

intent to commit an offensive bodily contact. so intent to kill a deer is not that, so accidentally shooting man wouldn’t transfer a wrongful intent, because shooting a deer isn’t wrongful intent

Question 35

is INVOLUNTARY consumption of a drug (that is the but-for cause of you hitting someone) a defense to battery?

Answer 35

yes