Torts

Question 1

Intentional Torts Generally

Answer 1

(1) act by D; (2) intent (specific, general, or transferred), and (3) causation

Question 2

Specific Intent

Answer 2

desires to produce consequences

Question 3

General Intent

Answer 3

knowledge with substantial certainty

Question 4

Transferred Intent

Answer 4

intention of consequences transfers to injured victim

Question 5

Battery

Answer 5

(1) harmful or offensive contact; (2) to P’s person; (3) intent; (4) causation (damages not required)

Question 6

Assault

Answer 6

(1) act by D creating reasonable apprehension in P; (2) of immediate harmful or offensive contact to P’s person; (3) intent; (4) causation

Question 7

False Imprisonment

Answer 7

(1) an act or omission on part of D that confines or restrains P to bounded area; (2) intent; (3) causation

Question 8

Intentional Infliction of Emotional Distress (IIED)

Answer 8

(1) act by D amounting to extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) damages – severe emotional distress/actual damages required

Question 9

Trespass to Land

Answer 9

(1) physical invasion of P’s real property; (2) intent; and (3) causation – may be invasion by person or object (mistake NOT a defense)

Question 10

Trespass to Chattels

Answer 10

(1) an act by D that interferes with P’s right of possession in a chattel; (2) intent; (3) causation; (4) damages intermeddling (directly damaging chattel) or dispossession (depriving P of lawful possession)

**D’s mistaken belief that he owns chattel is NOT a defense

Question 11

Conversion

Answer 11

(1) act by D that interferes with P’s right of possession in a chattel; (2) interference is so serious that it warrants D to pay chattel’s full value; (3) intent; (4) causation

***mistake as to ownership NOT a defense (longer the withholding period and more extensive the use, the more likely it is to be conversion – less serious interference is trespass to chattel) P may recover fair market value at time of conversion or possession

Question 12

Consent as defense

Answer 12

P’s consent to D’s conduct; cannot consent to criminal act and cannot exceed scope of consent; express consent – not liable if P expressly consents [exceptions: (1) mistake will undo express consent if D
knew of and took advantage of mistake; (2) consent induced by fraud if goes to essential matter; (3) obtained by duress unless threats of only future action]; implied consent – reasonable person would infer from custom and usage of P’s conduct; capacity – incapable of consent – incompetents, drunk, very young children

Question 13

Self-Defense

Answer 13

when person reasonably believes that she is or is about to be attacked, may use force reasonably necessary to protect against injury; reasonable mistake as to existence of danger is allowed

Question 14

Defense of Others

Answer 14

may use force to defend another when actor reasonably believes that other person could have used force to defend himself

Question 15

Defense of Property

Answer 15

use reasonable force to prevent commission of tort against her real or personal property; request to desist or leave must first be made unless futile/dangerous (not available against one with privilege to enter onto land because of necessity, recapture of chattels, etc.)

Question 16

Privilege of Arrest

Answer 16

privilege to arrest third person – carried with it privilege to enter another’s land – may still be liable for subsequent misconduct;

mistake misdemeanor – privileged only for breach of peace in front of D; mistaken felony – police officer may make reasonable mistake but citizens may only make reasonable mistake as to identity not if felony occurred;

shoplifting detentions – shopkeeper has privilege to detain shopper for investigation – (1) reasonable belief as to theft; (2) detention must be conducted in reasonable manner and nondeadly force can be used; and (3) detention must be only for a reasonable period of time and only or the purpose of making an investigation

Question 17

Necessity

Answer 17

person may interfere with real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than the invasion undertaken to avert it (1) public – when act is for public good; (2) private – when act is solely to benefit limited number of people (actor must pay for any injury he causes)

Question 18

Defamation

Answer 18

(1) defamatory language; (2) of or concerning P; (3) publication thereof by D to a third person; and (4) damage to P’s reputation (D can offer truth as a defense | constitutional requirements when defamation involves matter of public concern: (5) falsity of defamatory language; (6) fault on part of D

Question 19

Libel

Answer 19

written/printed publication of defamatory language; P need not prove special damages and general damages are presumed (radio & TV broadcasts);

Question 20

Slander

Answer 20

spoken defamation; P must prove special damages, unless defamation falls within slander per se categories (adversely reflect on one’s conduct in a business/profession; loathsome disease; one is or was guilty of crime involving moral turpitude; woman is unchaste)

Question 21

Public Official/Figure (Defamation)

Answer 21

must prove actual malice – knowledge that statement was false or reckless disregard as to whether it was false

Question 22

Public Concern (Defamation)

Answer 22

only actual injury damages recoverable where D is negligent; when actual malice, damages are presumed and punitive allowed

Question 23

Defenses to Defamation

Answer 23

(1) consent; (2) truth; (3) absolute privilege – can never be lost and may be protected for remarks made during judicial proceedings, legislature during proceedings, federal executive officials, in compelled broadcasts, and between spouses; qualified privilege – can be lost through abuse, can have qualified for reports of official proceedings, statements in the interest of recipient, and statements in common interest of publisher and recipient (can be lost if statement is not within scope of privilege or it is shown that the speaker acted with actual malice)

Question 24

Appropriation of P’s Picture or Name

Answer 24

necessary to show unauthorized use of P’s picture or name for D’s commercial advantage

Question 25

Intrusion on P’s Affairs or Seclusion

Answer 25

act of prying or intruding must be highly offensive to reasonable person – must be private

Question 26

Publication of Facts Placing P in False Light

Answer 26

one attributes to P views he does not hold or actions he did not take; must be highly offensive to a reasonable person under the circumstances; must be publicity (if of public interest, actual malice on D’s part must be proved)

Question 27

Public Disclosure of Private Facts About P

Answer 27

matters of public record not sufficient; must be highly offensive to reasonable person

Question 28

Intentional Misrepresentation (Fraud)

Answer 28

(1) misrepresentation of material past/present fact; (2) when D made statement, knew or believed it was false or no basis for statement; (3) intent to induce P to act or refrain from acting in reliance upon misrepresentation;
(4) causation (actual reliance); (5) damages (P must suffer pecuniary loss) *NO DEFENSES

Question 29

Negligent Misrepresentation

Answer 29

(1) misrepresentation by D in a business or professional capacity; (2) breach of duty toward particular P; (3) causation; (4) justifiable reliance; (5) damages

Question 30

Interference with Business Relations

Answer 30

(1) existence of valid contractual relationship between P and third party or valid business expectancy of P; (2) Ds knowledge of the relationship or expectancy, (3) intentional interference by D inducing a breach/termination of relationship or expectancy; (4) damages

Question 31

Negligence

Answer 31

(1) duty on part of D to conform to a specific standard of conduct for protection of P against an unreasonable risk of injury; (2) breach of that duty; (3) breach is actual and proximate cause of P’s injury; (4) damage

Question 32

Duty of Care

Answer 32

owed to all foreseeable Ps [rescuers – foreseeable P where D negligently put himself or a third person in peril (firefighters and police officers may be barred by firefighter’s rule from recovering for injuries caused by risks of rescue)

Question 33

Standards of Care

Answer 33

(1) basic standard of reasonable person – one’s conduct is measured by what average person would do – mental deficiencies and inexperience not taken into account (only physical characteristics); (2) professionals – required to possess the knowledge and skill of a member of profession/occupation in good standing in similar communities; medical specialists held to national standard of care [doctor has duty to disclose risks of treatment to enable patient to give patient informed consent]; (3) children – held to standard of like age, education, intelligence, and experience [subjective test]; (4) common carriers – high degree of care; (5) bailment – if for sole benefit of bailor bailment, low standard; if for sole benefit of bailee bailment, high standard; for mutual benefit, ordinary standard

Question 34

Owners and Occupiers of Land

Answer 34

(1) duty to those off premises – no duty to protect one off premises from natural conditions on premises but is a duty for unreasonable dangerous artificial conditions or structures abutting adjacent land

Question 35

Duty to Trespassers

Answer 35

no duty owed to undiscovered trespasser; discovered/anticipated – must warn or make safe concealed, unsafe, artificial conditions known to landowner involving risk of death or serious bodily harm and use reasonable care in exercise of active operations on property

Question 36

Attractive Nuisance

Answer 36

duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous conditions on his property; P must show (a) dangerous condition on land owner is or should be aware; (b) owner knows or should have known children frequent vicinity of condition; (c) condition is likely to cause injury; (d) expense of remedying situation is slight compared with magnitude of risk

Question 37

Licensees

Answer 37

one who enters onto land with possessor’s permission for her own purpose or business, rather than for possessors benefit – duty to (a) warn or make safe dangerous conditions known to owner that create unreasonable risk of harm to licensee and that licensee is unlikely to discover, and (b) exercise reasonable care in conduct of active operations [social guests]

Question 38

Invitees

Answer 38

enter into land in response to an invitation by the landowner – owes same duty as licensees plus duty to make reasonable inspections to discover nonobvious dangerous conditions and make them safe (warning ok)

Question 39

Users of Recreational Land

Answer 39

owner who does not charge fee is not liable for injuries suffered by recreational user, unless willfully and maliciously failed to guard against or warn of dangerous condition

Question 40

Lessor/Lessee

Answer 40

lessee has general duty to maintain premises; lessor must warn of existing defects of which he is aware or has reason to know, and which he knows lessee is not likely to discover on reasonable inspection; if lessor covenants to repair, he is liable for unreasonable dangerous conditions

Question 41

Vendor of Realty

Answer 41

vendor must disclose to vendee concealed, unreasonably dangerous conditions of which vendor knows or has reason to know, and which he knows vendee is not likely to discover on reasonable inspection

Question 42

Negligence Per Se

Answer 42

(1) P within protected class, (2) statute was designed to prevent type of harm suffered by P – unexcused statutory violation is negligence per se – conclusive presumption of duty and breach of duty (must still prove causation and damages)

Question 43

Negligent Infliction of Emotional Distress

Answer 43

D creates foreseeable risk of physical injury to P – (1) P must be within zone of danger and (2) P must suffer physical symptoms from distress [bystander outside zone of danger who sees D negligently injuring another can recover damage for her own distress as long as P and injured person are closely related, P was recently
at scene, and P personally observed or perceived event]; special relationship between P and D; P can also recover where D’s negligence creates great likelihood of emotional distress

Question 44

Eggshell Plaintiff Rule

Answer 44

D takes victim as he finds him; sensitive P who suffers damages greatly in excess of those that a normal victim would suffer is entitled to recover fully for her injuries

Question 45

Affirmative Duty

Answer 45

none – exceptions: (1) assumption of duty by acting, (2) peril due to D’s conduct, (3) special relationship between parties (relative, common carrier, inn-keeper, shopkeeper, employer), (4) duty to prevent harm from third persons (no duty to prevent a third party from injuring another; exceptions: one who has actual ability and authority to control a person’s action, and knows or should know person is likely to commit acts that would require exercise of this control – e.g., school teacher)

Question 46

Breach of Duty

Answer 46

D’s conduct falls short of level required by applicable standard of care owed to P – custom or usage/violation of statute

Question 47

Res Ipsa Loquitur

Answer 47

very occurrence of an event may tend to establish breach of duty; requires P to show that (1) accident-causing injury is type that would not normally occur unless someone was negligent; (2) negligence is attributable to D. (3) D is in exclusive control of object causing injury where established, P made prima facie case and no directed verdict may be given for D

Question 48

Causation

Answer 48

consists of actual cause and proximate cause

Question 49

Actual Causation

Answer 49

but for test – but for D’s actions injury would not have occurred;

substantial factor test – applies when there are multiple defendants – if each breach alone would have been sufficient to cause the injury then both Ds are jointly liable;

alternative causes – if not ascertainable which act caused injury, then burden shifts to D to show negligence is not actual cause

Question 50

Proximate cause

Answer 50

limitation of liability and deals with liability or nonliability for foreseeable or unusual consequences of one’s act – D is generally liable for all harmful results that are normal incidents of and within the increased risk caused by his facts (foreseeability) (D not liable for unforeseeable results caused by unforeseeable intervening forces; D not liable for unforeseeable results caused by foreseeable intervening forces)

Question 51

Damages (Negligence)

Answer 51

P compensated for all his damages, both economic and noneconomic; property damage = reasonable cost of repair, or FMV; punitives – generally not available in negligence unless conduct is “wanton and willful”

Question 52

Contributory Negligence

Answer 52

Negligence on part of P that contributes to her injuries; completely barred P’s right to recovery at common law (last clear chance: permits P to recover – person with last clear chance to avoid accident who fails to do so is liable for negligence)

Question 53

Assumption of Risk

Answer 53

if P assumed risk of any damage caused by D’s act; P must have (1) known of risk and (2) voluntarily proceeded in face of risk

Question 54

Comparative Negligence (Majority)

Answer 54

(1) Pure - amount of damages apportioned to P because of P’s negligence is subtracted from the total damages awarded, no matter how much P is at fault; (2) Partial/Modified – if P was more than 50% at fault, P cannot recover

Question 55

Strict Liability

Answer 55

(1) nature of Ds activity imposes an absolute duty to make safe; (2) the dangerous aspect of the activity was the actual and proximate cause of Ps injury; (3) P suffered damage to person or property

Question 56

Animals (Strict Liability)

Answer 56

owner strictly liable for reasonably foreseeable damage done by trespass of his animals; owner strictly liable to licenses and invitees for injuries caused by wild animals; no strict liability for domestic animals *strict liability not available to trespassers

Question 57

Abnormally Dangerous Activity

Answer 57

(1) activity must create foreseeable risk of serious harm even when reasonable care is exercised by all actors; (2) activity is not matter of common usage in community

Question 58

Extent of Strict Liability

Answer 58

harm must result from abnormally dangerous characteristics *Assumption of risk good defense; states apply comparative negligence

Question 59

5 theories of product liability

Answer 59

(1) intent; (2) negligence; (3) strict liability; (4) implied warranties of merchantability and fitness for particular purpose; (5) representation theories (express warranty and misrepresentation)

Question 60

Products Liability - Plaintiff Must Show:

Answer 60

(1) defect, (2) existence of defect when product left Ds control

Question 61

Manufacturing (Products Liability)

Answer 61

if product emerges from manufacturing different from and more dangerous than products that were made properly; D will be liable if P can show product failed to perform as safely as an ordinary consumer would expect

Question 62

Design (Products Liability)

Answer 62

when all products of a line are the same but have dangerous propensities; P must show D could have made product safer, without impact on price/utility

Question 63

Inadequate Warning (Products Liability)

Answer 63

manufacturer’s failure to give adequate warnings as to risks involving in using product that may not be apparent to users

Question 64

Warranties (Products Liability)

Answer 64

(1) merchantability – whether goods are of average acceptable quality and generally fit for ordinary purpose for which they are used; (2) fitness for particular purpose – seller knows or has reason to know of particular purpose for which goods are required and buyer is relying on seller’s skill/judgment

Question 65

Representation (Products Liability)

Answer 65

(1) express – any affirmation of fact or promise concerning goods that become part of basis of bargain; (2) misrepresentation of fact - (1) statement was of a material fact concerning quality or uses of goods (mere puffery insufficient), and (2) the seller intended to induce reliance by the buyer in a particular transaction liability usually based on strict liability but may also arise for intentional or negligent misrepresentations

Question 66

Private Nuisance

Answer 66

Substantial, unreasonable interference with another private individual’s use or enjoyment of property that he actually possesses or to which he has a right of immediate possession

Question 67

Public Nuisance

Answer 67

Act unreasonably interferes with health, safety, or property rights of community; recovery by private party available only if private party suffered unique damages not suffered by public at large

Question 68

Remedies (Nuisance)

Answer 68

P awarded damages; injunctive relief if legal damages inadequate

Question 69

Vicarious Liability

Answer 69

Employers are vicariously liable for the torts of their employees if the torts are committed within the scope of employment (respondeat superior); Intentional torts are typically outside the scope of employment unless they were done for the purpose of serving the employer or if they were foreseeable

Question 70

Joint and Several Liability

Answer 70

where 2 or more negligent acts combine to proximately cause indivisible injury, each negligent actor will be jointly and severally liable; if injury is divisible, each D is liable only for identifiable portion [until there is satisfaction one may proceed against all jointly liable parties]

Question 71

Contribution

Answer 71

Allows D who pays more than his share of damages under joint and several liability to have claim against other jointly liable parties for excess

Question 72

Indemnity

Answer 72

shifting entire loss between or among tortfeasors (1 D can seek 100% of damages from other D) – available by K, in vicarious liability situations, under strict products liability, and where there has been an identifiable different in degree of fault

Question 73

Survival (Torts)

Answer 73

allow one’s cause of action to survive death of one or more of parties; apply to actions involving torts to property and torts resulting in personal injury

Question 74

Wrongful Death

Answer 74

grant recovery for pecuniary injury resulting to spouse and next of kin; recovery allowed to extent that deceased could have recovered had he lived

Question 75

Government tort immunity

Answer 75

US waived immunity for tortious acts; will still attach for assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel and slander, misrepresentation and deceit, interference with K rights; not waived for “discretionary acts”