Torts - Bar Review

Question 1

Specific intent

Answer 1

Done with a particular purpose or substantial certainty that the result will occur.

Question 2

General intent

Answer 2

Done with a particular purpose to perform some act, but without a desire for the consequence to result from that act.

Question 3

Assault

Answer 3

Intentional causing of reasonable apprehension of imminent harmful or offensive bodily contact. Must be the type of harm which society deems harmful, not merely due to the delicate sensibilities of the plaintiff. Punitive damages where malice.

Question 4

Reasonable person standard

Answer 4

D must use the level of care and caution that a normal person would have used in the same or similar circumstances.

Reasonably prudent person with average knowledge and skill with the physical characteristics of the defendant.

Question 5

Battery

Answer 5

Intentional infliction of harmful or offensive bodily contact. Harmful or offensive is determined by the reasonable person standard. Defendant responsible for all harm to plaintiff. E.g.,, it is foreseeable that the ambulance driver could get in an accident in route to the hospital.

Question 6

Intentional tort causation

Answer 6

But for, substantial factor (both would have caused by itself), alternative liability (uncertain which D caused, D bears burden of disproving), or concurrent cause (neither would have caused by itself).

Question 7

Trespass to land

Answer 7

Intentional physical entry onto the land in possession of another without consent or privilege.

Question 8

Trespass to chattel

Answer 8

Intentional physical interference with the chattel of another causing minor damage or dispossession. Liable for diminution in value, actual damages, or fair rental for temporary dispossession.

Question 9

Conversion

Answer 9

Exercise of dominion and control of the chattel in possession of another, so severe as to justify requiring D to pay the chattel’s full value as determined at the time of conversion.

Question 10

Intentional infliction of emotional distress

Answer 10

Intentional or reckless infliction, by extreme or outrageous conduct, severe emotional or mental distress. D is liable for any present close family member if D is aware of their presence, or any third party who suffers physical injury.

Question 11

False imprisonment

Answer 11

Intentional physical or psychological confinement of another leaving them no reasonable means of escape. P must either be aware of the confinement or suffer some injury if not aware. D has a privilege where he has a reasonable belief that P committed a felony, shopkeeper’s reasonable belief of shoplifting, or citizen’s arrest.

Question 12

Consent

Answer 12

D will not be held liable for an intentional tort where P knowingly and voluntarily assented to D’s conduct. May be invalidated where Fraudulently obtained, Actually aware that P did not consent, Capacity lacking, Threat of force, Scope exceeded, or Illegal (FACTSI)

Question 13

Defense of others

Answer 13

D will not be liable for a tort where he reasonably believed that proportional force was necessary to avert imminent harm to person or property.

Justified to get AgRIP on the situation:

Aggressor (D is not)
Reasonable belief that
Imminent harm can be avoided with force
Proportional to harm avoided

Majority - NO duty to retreat (35/50 states)
Minority - YES duty to retreat (15/50 states)

Mistake sometimes a defense

Question 14

Privilege to arrest

Answer 14

Defense to false imprisonment where D reasonably believed P committed a felony. For citizen’s misdemeanor arrest, must be a breach of peace conducted in the presence of the arresting citizen.

Question 15

Necessity

Answer 15

D is privileged to prevent imminent harm to person or property. Public necessity for benefit of society, no tort or actual liability. Private necessity for benefit of individual or self, no tort but liable for actual damages.

1. Reasonable interference
2. with property interest or person
3. due to emergency
4. which excuses damages
5. where necessity > potential harm from interference.

Question 16

Shopkeeper’s privilege

Answer 16

Shopkeeper may temporarily detain someone they reasonably believe to have shoplifted from their store without incurring tort liability for false imprisonment.

Question 17

Attractive nuisance doctrine

Answer 17

1. Child could not appreciate
2. dangerous artificial attractive condition with slight relative utility which
3. could have been made safe with care and D
4. should have been aware of the risk.
5. Majority rule does not require attracting children – can still be liable if became attracted once already on property.

Question 18

Negligence

Answer 18

D can be liable for negligence when he breaches a duty of care to plaintiff, thereby actually and proximately causing the plaintiff’s injury. Requires a duty owed, breach of that duty, actual and proximate cause, and damages. Pure economic harm not allowed unless special relationship (malpractice, wrongful diagnosis of serious disease).

Question 19

Duty to whom?

Answer 19

Under the Cardozo view, a duty is owed to foreseeable plaintiffs within the zone of danger. Under the Andrews view, a duty is owed to all foreseeable plaintiffs.

Question 20

Duty to assist

Answer 20

Generally, there is no duty to assist unless

1. there is a preexisting relationship,
2. D put the person in danger, or
3. D began assisting thereby dissuading others from doing so.

Question 21

Breach

Answer 21

A breach occurs when D’s conduct falls below the applicable standard of care.

Question 22

Actual cause

Answer 22

But for D’s conduct, P would not have suffered injury. Also substantial factor (Either - sufficient alone), concurrent cause (Both - not sufficient alone), and alternative liability (unsure which, D bears burden of disproving).

Question 23

Proximate cause

Answer 23

The injury must have been a forseeable result of the defendant’s negligence.

Natural and probable consequence of D’s breach of duty. Foreseeable harm and type.

Question 24

Standard of care

Answer 24

Every person owes a duty to act as a reasonably prudent person (with D’s physical characteristics) under similar circumstances. Other standards include:

Question 25

Children’s standard of care

Answer 25

Held to the standard of a reasonable child of the same age, experience, intelligence, and maturity in similar circumstances, but will be held to adult standard if performing an adult activity (e.g., driving a car).

Question 26

Professionals (doctors, lawyers)

Answer 26

Held to the standard of an average qualified practitioner, by a national standard.

Question 27

Landowner’s duty to entrants

Answer 27

Includes property possessors, such as owners and tenants.

Question 28

Undiscovered trespasser

Answer 28

No duty is owed except not to intentionally harm.

Question 29

Known trespasser

Answer 29

Must make reasonable effort not to cause death or serious bodily injury for conditions not likely to be discovered. Must also make safe, or at a minimum, warn of dangerous artificial conditions or equipment on property.

Question 30

Licensee

Answer 30

Social guest, must inspect, make safe, or at minimum, warn of dangerous latent conditions.

Question 31

Invitee

Answer 31

Invitee is there for land possessor’s pecuniary benefit. Must inspect, warn of dangerous conditions not likely to discover, and make safe and dangerous latent conditions.

Question 32

Prima facie damages for negligence

Answer 32

Harm to person or property, Purely economic losses not allowed unless malpractice, Sentimental loss not prima facie.

Question 33

Negligence per se

Answer 33

Establishes breach and duty if a violation of a law results in harm (causation must still be proven). P must be in the class of persons the law sought to protect, and the harm suffered must be the type of harm the law was designed to prevent. Exceptions where the law is vague, D exercised reasonable care, or P was harmed less than if D had complied with the law.

Question 34

Res ipsa loquitur

Answer 34

Allows a plaintiff to prove their case solely on circumstantial evidence by showing that the incident typically would not have occurred but for the negligence, the instrumentalities of the harm were solely in D’s control, and P did not contribute to the risk. Factfinder is permitted, but not required, to find that D owed and breached a duty to P. (Duty, breach, and actual cause are inferred; proximate cause and damages must be proven).

Question 35

Negligence defenses

Answer 35

Contributory negligence, comparative fault, and consent (assumption of risk, implied primary/secondary, express).

Question 36

Last clear chance

Answer 36

P can recover despite their own contributory negligence when D had the last clear chance to avoid the accident. Negates contributory negligence defense. Permits negligent P to recover if: 1) D was negligent 2) D had last clear chance 3) P was unable to extricate himself and 4) D knew of P's predicament

Question 37

Eggshell rule

Answer 37

A defendant takes their victim as they find them and will be liable for all harm suffered due to tortious conduct by the defendant.

Question 38

Intervening causes

Answer 38

An event that takes place after tortious conduct that worsens the plaintiff’s injury, but may not break the chain of causation between D and P if the injury is foreseeable.

Question 39

Superseding causes

Answer 39

A superseding cause is an intervening event that is unforeseeable and so unrelated to the tort that it serves as a defense to a negligence claim.

Question 40

Pure comparative negligence

Answer 40

The amount of fault assigned to a plaintiff will not bar recovery, however the amount of their damages will be reduced by the percentage of their own fault.

Question 41

Modified/partial comparative negligence

Answer 41

A plaintiff’s recovery will be barred if they are >50% responsible for their own injury, but the recovery will otherwise be reduced by their share of fault if < 50%.

Question 42

Contributory negligence

Answer 42

A plaintiff’s negligence which is a contributing factor in their own injury will act as a compete bar to recovery, no matter how slight. This is a minority rule.

Question 43

Assumption of risk

Answer 43

A plaintiff will be unable to recover where they knowingly and voluntarily embrace a risk of injury.

Question 44

Fireman’s rule

Answer 44

Police, firemen, and other first responders may not sue for injuries they suffer in the performance of their professional duties because it is deemed that they assumed the risk.

Question 45

Third party liability

Answer 45

Pure economic loss cannot be recovered by a third party (too attenuated).

Question 46

Negligent infliction of emotional distress

Answer 46

NIED has three types of claims: 1) Near miss (zone of danger & physical symptoms); 2) Innocent bystander (outside ZOD but witness and close relative observed injury, need not show physical symptoms); and 3) Existing (pre) relationship (doctor/patient, mishandles corps, misdiagnosis of serious disease, P must show physical symptoms).

Question 47

Vicarious liability

Answer 47

An employer is vicariously liable for an employee’s negligent acts if the employee was acting within the scope of their employment. Scope is determined by the type of work assigned to the employee and whether they were engaged in a mere detour or a frolic.

Question 48

Employee vs. contractor

Answer 48

To determine whether the tortfeasor is an employee or contractor, courts consider the degree of control the principal has over their agent, whether the pay was hourly or by the job, ownership of tools, if the job was for the benefit of the principal’s business, and the length of time the agent worked with the principal.

Question 49

Intentional torts of contractors

Answer 49

Contractors are not typically under the direct control of their principal, therefore they are liable for their own torts.

Question 50

Exception to independent contractors

Answer 50

An employer will be liable for independent contractors if it involves a non-delegable duty because the responsibility is so important that the employer should not be permitted to transfer responsibility to another (Common carrier, Ultra-hazardous activities).

Question 51

Intentional torts of employees

Answer 51

Employers are not typically liable fort torts of their employees unless the employer directed the employee to act, or it is consistent with the nature or scope of their duties (e.g., a bodyguard or bouncer).

Question 52

Defamation

Answer 52

False factual statement, published and understood by a third party to be of or concerning the plaintiff, causing reputational harm. Damages are presumed for libel (written) but must be proven for slander (spoken) unless slander per se.

Question 53

Truth

Answer 53

Truth is an absolute defense to defamation.

Question 54

Slander per se

Answer 54

Damages will be presumed where the defamatory statement constitutes slander per se, including statements related to Business or profession, Unchastity of a married woman, Moral turpitude crimes, or Disease (loathsome).

Question 55

Publication

Answer 55

Requires transmission to a third person, where a defendant will be liable unless they did not negligently publish the statement (D was overheard), and it was not foreseeable that someone would hear.

Question 56

Defamatory statement

Answer 56

Words that diminish respect, esteem, or goodwill toward a plaintiff, or deters others from associating with them.

Question 57

Public figure

Answer 57

Someone who is well known and earned some level of celebrity or notoriety, or if they have inserted themselves into a matter of public concern. However, the wife of a public figure only needs to prove falsity, negligence, and damages.

Question 58

Public figure defamation standard

Answer 58

If the plaintiff is a public figure, they must prove either fault or falsity. Falsity is established if the defendant knew the statement was false, and fault is established when the plaintiff can show the defendant spoke with recklessness as to truth of the statement. If the plaintiff is not a public figure but speaking to a matter of public concern, the plaintiff need only prove that the defendant spoke negligently.

Question 59

Absolute privilege

Answer 59

A plaintiff will be barred from a defamation claim even if the statement is made maliciously, including Accurate retelling, Broadcast politics, Spousal communications, Official communications.

Question 60

Qualified privilege

Answer 60

Plaintiff’s defamation claim will be barred where a it is made in the intents of the public/common interest, statements defending one’s own reputation, and reports of official proceedings. Scope of qualified privilege can be exceeded.

Question 61

Public nuisance

Answer 61

Intentional, substantial, and unreasonable interference with the public’s property rights, health, or safety. Must be brought by public official or plaintiff who suffered a unique harm.

Question 62

Private nuisance

Answer 62

Intentional, substantial, and unreasonable interference with the use and enjoyment of one’s property. Must be the type of harm which is objectively unreasonable, not due to a delicate sensibilities of the plaintiff. Coming to the nuisance is a defense only where P moved to the area specifically to sue for private nuisance.

Question 63

Privacy torts

Answer 63

**Publication of private facts**: widespread dissemination of facts that would be highly objectionable to a reasonably prudent person. **Intrusion upon seclusion**: defendant intrudes into P’s private matters where P has a reasonable expectation of privacy and a reasonable person would be highly offended. **False light**: Publication of P’s actions or beliefs in false light that would be highly objectionable to a reasonable person. Must show malice if a public person or public concern. Can obtain damages for non-economic harm without proving harm to reputation. **Misappropriation of name or likeness**: Using P’s name or image for commercial gain without consent, except in the context of news coverage. POP IN FA MI

Question 64

Strict liability for wild animals

Answer 64

For domestic animals, no liability unless D knew of harmful propensities. For wild animals, owner held strictly liable for harm flowing from animal’s dangerous propensities.

Question 65

Strict liability for abnormally dangerous activities

Answer 65

An abnormally dangerous activity is one that is inappropriate for the Location, inherently Dangerous, cannot be Made safe with care, and is of little Value to the community. The harm must be of the type that makes the activity dangerous. You should still discuss and analyze the negligence elements for completeness.

Question 66

Products liability claims

Answer 66

May be proven under five theories: 1) negligence; 2) strict liability; 3) implied warranty; 4) express warranty; and 5) misrepresentation.

Question 67

Strict products liability

Answer 67

A prima facie case for strict products liability requires: 1) commercial supplier who regularly sells the type of good; 2) defective in manufacture, design, or failure to warn; 3) Injury caused by the defect; and 4) in a foreseeable way. C-DIF.

Question 68

Breach in strict products liability

Answer 68

A breach of duty occurs when the product was defective in manufacture, design, or failure to warn when it left the hands of the manufacturer or seller, the product was not substantially altered prior to acceptance by the plaintiff, the defect in the product caused P’s injury, the supplier is a merchant of the type of good involved, and P used or misused it in a foreseeable way.

Question 69

Strict products liability causation

Answer 69

Actual causation requires that P trace the harm to a defect that existed when it left D’s control.

Question 70

Manufacturing defect

Answer 70

Product differs from other products produced and is more dangerous than if made correctly.

Question 71

Design defect

Answer 71

Made as intended and every product produced of the same type has the dangerous defect. Can be proven by consumer expectations, reasonable alternative design, or risk utility.

Question 72

Failure to warn

Answer 72

Occurs when the plaintiff was not warned of the risks of use that were not obvious to an ordinary user but known to the commercial supplier. A warning must be proportionate to the risk involved with normal product use.

Question 73

Consumer expectation test

Answer 73

Consumer expectations is met if the product is more dangerous than an ordinary consumer would expect when used in a reasonably foreseeable manner by an ordinary user

Question 74

Reasonable alternative design

Answer 74

RAD - Reduces Actually Doable SET - Scientific Economic Technical 1. Reduces utility substantially (RAD must not) 2. Actually be safer 3. Doable - Feasible (scientific, technological, economic)

Question 75

Risk/utility test

Answer 75

1. Unreasonably dangerous if the 2. danger associated with foreseeable use of the product 3. outweighs the product’s utility and there exists an ACTUAL 4. RAD.

Question 76

Foreign natural test

Answer 76

Where a dangerous element of a product is one that is expected in the natural environment of the product, it is not defective (e.g., a bone in a rotisserie chicken).

Question 77

Government safety compliance

Answer 77

Non-compliance with a government safety standard establishes a defect, but compliance does not establish non-defectiveness.

Question 78

Product liability – negligence

Answer 78

Requires duty, breach, causation, and damages. Breach will be found where a supplier’s negligence results in the supply of a defective product. Suppliers liable for all foreseeable misuse. Any manufacturer may be liable, but only if their conduct was negligent. Personal injury and property damage are recoverable, but not solely economic harm.

Question 79

Duty in a products liability action

Answer 79

A duty of care is owed by commercial suppliers who regularly deal in the product to all foreseeable users, including bystanders without privity.

Question 80

Breach in negligent products liability

Answer 80

Plaintiff must show negligent conduct by defendant leading to supply of the defective product.

Question 81

Implied warranty of fitness for a particular purpose

Answer 81

All products come with an implied warranty of fitness for their particular purpose which is breached when the seller knows or has reason to know of the buyer’s purpose and the buyer relies on the seller’s judgement to provide the proper product for the buyer’s purpose. Must prove duty, breach, causation, damages, and absence of applicable defenses. Duty: In every sale there are two implied warranties: 1) merchantability; and 2) fitness for a particular purpose. The majority view is that privity is not required Breach: Occurs if product fails to live up to these warranties Causation: But for, substantial factor, concurrent cause, alternative liability, and proximate cause Damages: Personal injury, property, and purely economic damages are recoverable Defenses: Assumption of risk, contributory/comparative negligence

Question 82

Implied warranty of merchantability

Answer 82

All goods sold by a merchant, a person dealing in the goods of the kind, must be fit for ordinary use.

Question 83

Express warranty

Answer 83

Exists when a seller makes a deliberate promise to warranty, or a description of the product, or provides a sample relating to the product, and that warranty factors into the decision to purchase the product.

Question 84

Misrepresentation in products liability

Answer 84

A merchant is strictly liable for any harm to consumers when they knowingly or with reckless disregard misrepresent their product. This misrepresentation must be made with intent that the user will rely on such misrepresentation in the purchase and use of the product.

Question 85

Abuse of process

Answer 85

Wrongful use of legal process for ulterior purpose, or an act or threat to accomplish the same.

Question 86

Negligent hiring

Answer 86

Employer may be found liable where they fail to exercise reasonable care in choosing an employee to perform specific duties.

Question 87

Joint and several liability

Answer 87

A judgement for joint and several liability assigns the full value of the judgement to all defendants. If one defendant pays the entirety of the judgement, they will have the right to sue for contribution from their co-defendants.