Torts Cards

Question 1

Private Nuisance

Answer 1

A claim for private nuisance can be established by demonstrating that the defendant is causing a substantial and unreasonable interference with the plaintiff’s use and enjoyment of the property. Interference is considered substantial when a reasonable person would find that there has been a significant deprivation of his or her ability to enjoy the property. A plaintiff’s hyper-sensitivities are ignored when a court is adjudicating whether a nuisance exists.

Question 2

Public Nuisance

Answer 2

A claim for public nuisance can be established by an unreasonable interference with health, safety, and morals of the community at large. To recover under a theory of public nuisance, the plaintiff must have suffered unique damages.

Question 3

Tresspass to Land

Answer 3

A trespass to land is an intentional tort. Trespass to land requires the showing of: 1) an intentional act on the part of the defendant, 2) a physical invasion of real property, and 3) causation, meaning that the defendants conduct was a substantial factor in causing the injury.

Question 4

Consent to Trespass

Answer 4

Consent is a defesne to trespass to land. Consent may be express or implied. Necessity is also a defense that exists when the action was justified because the trespass was done to prevent an imminent harm.

Question 5

Private Necessity

Answer 5

Is when the trespass was necessary to prevent harm to a private interest. Private necessity claimant is still responsible for damages caused by trespass.

Question 6

Public Necessity

Answer 6

Applies when the imminent or threatened harm was to the public. Public necessity is immune to damages caused by trespass.

Question 7

Sovereign Immunity

Answer 7

A state sovereign could not be held liable for the torts of its agents or of itself. However, most jurisdictions have passed states that waive such immunity for negligence actions.

Question 8

Respondeat Superior

Answer 8

Allows a plaintiff to hold a principal responsible for the torts of its agents so long as the tort was committed within the scope of the agent’s employment. Principals are not liable for torts committed by independent contractors unless the principal owed a duty that cannot be contracted out.

Question 9

Employee/Independent Contractor

Answer 9

A principal is not liable for the torts of independent contractors. To determine if an agent is an employee or an independent contractor, the Court will consider: 1) the business relationship and contract b/w State and contract; 2) whether State had control over the manners and means in which contract was performed; 3) whether the job performance provided by contract was the kind of performance typically provided by an independent contractor; 4) whether the parties had thought they were in an employee-employer relationship; and 5) whether the job performed included a duty that could not be delegated.

Question 10

Premises Liability

Answer 10

Under the traditional approach, a person or premises is categorized as a trespasser, licensee, or invitee. The duty owed depends on the person’s categorization. However, many jurisdictions, including CA, have abolished categorizations and views that landowner owes a duty of reasonable care to everyone except flagrant trespassers.

Question 11

Inn Keeper

Answer 11

At common law, certain business that catered to providing transport and lodging services owed a heightened duty of care. This included businesses like common-carrier and inns. These businesses owed a duty to provide the utmost care.

Question 12

Statutory Duty

Answer 12

In addition to duties provided by common law, the legislator can create duties via statutes.

Question 13

Defamation

Answer 13

To prevail on a defamation claim, the plaintiff must prove: 1) defamatory statement; 2) concerning the plaintiff; 3) published to a third party. Additionally, if the defamation claim involves a matter of public concern or a public figure, there are two additional elements that the plaintiff must prove in order to not violate the First Amendment. Plaintiff must show: 4) the statement is false; and 5) the intent of the defendant, which will vary depending on the type of plaintiff.

Question 14

Defamation: Defamatory Statement

Answer 14

Is a statement that is reasonably likely to harm another’s reputation. The statement generally must be one of fact. Statements of opinion may be actionable if they imply facts about the plaintiff.

Question 15

Defamation: Concerning the Plaintiff

Answer 15

A defamatory statement does not need to name the plaintiff specifically, as long as a reasonable person would know that the statement is referring to plaintiff.

Question 16

Defamation: Published to a Third Party

Answer 16

The defamatory statement must also be published to a third party, which means that a third party must hear or read or perceive the statement.

Question 17

Defamation: Falsity of Statement

Answer 17

When the plaintiff is a public figure or the statement concerns a matter of public concern, then plaintiff also needs to prove falsity of the defamatory statement.

Question 18

Defamation: Defendants Intent

Answer 18

If the person is a public figure or the matter is of public concern, the plaintiff will need to prove that the defendant acted with malice, which means that the defendant intentionally made the false defamatory statement or made it with reckless disregard for the truth. If the P is a private figure and the matter is of public concern, the P will need to prove that the defendant acted negligently when making the false statement.

Question 19

Defamation: Damages

Answer 19

There are different rules regarding pleading of damages for libel and slander. General damages are presumed for libel. For slander, special damages are presumed where the defamatory statement falls into a slander per se category: 1) about the persons profession or trade; 2) infers that P suffers from a loathsome disease; 3) accuses a woman of being unchaste. Otherwise, if the statement does not fall under a slander per se, the P must specifically plead and prove damages.

Question 20

Libel

Answer 20

There are two types of defamation: libel and slander. Libel is when the defamatory statement is in a permanent format. Traditionally, libel included defamatory statements that were printed, but modernly, statements that are captured on television or the radio are also considered libel. Slander are spoken statements, not captured in a permanent format.

Question 21

Slander

Answer 21

Slander are spoken statements, not captured in a permanent format.

Question 22

Intentional Infliction of Emotional Distress

Answer 22

To prevail on an IIED claim, the P must prove: 1) defendant’s outrageous and extreme conduct; 2) caused the plaintiff to experience severe emotional distress

Question 22

IIED: Defendants Conduct

Answer 22

Conduct qualifies as extreme and outrageous if a reasonable person would find that it is offensive and it would cause severe emotional distress in the reasonable person. Additionally, if the D has reason to know about the P’s particular sensitivities, then the D’s conduct even if not offensive to a reasonable person may still qualify as extreme and outrageous behavior.

Question 23

IIED: Plaintiff Suffered Severe Emotional Distress

Answer 23

For an IIED claim, the D’s conduct must not only cause emotional distress in a reasonable person, but P must have also experienced emotional distress.

Question 24

IIED: Defendants conduct caused Plaintiffs Severe Emotional Distress

Answer 24

For causation to exist, there must be both actual and proximate causation. Actual cause means that the defendant’s conduct was either the but for cause or substantial factor. But for cause means that but for defendant’s conduct the injury to plaintiff would not have occurred. Proximate cause exists when the P’s injury was a reasonably foreseeable result of the D’s conduct.

Question 25

Negligent Infliction of Emotional Distress

Answer 25

To prevail on an NIIED claim, the plaintiff must prove that: 1) defendant’s conduct was extreme and outrageous; 2) plaintiff was in the zone of danger; and 3) although plaintiff did not suffer physical harm form defendant’s conduct, plaintiff suffered physical harm as a result of emotional distress.

Question 26

Qualified Privilege

Answer 26

Exists if the publisher had a legitimate interest that it was furthering, or if he made the statement as part of a genuine public comment. The privilege usually applies to newspaper or broadcasters who have an interest in pursuing the truth.

Question 27

Strict Liability

Answer 27

The defendant can be liable without fault. Is limited to cases involving injuries caused by wild animals, or domestic animal with known wild propensities, or abnormally dangerous conditions.

Question 28

Negligence

Answer 28

A prima facia case of negligence requires a showing of duty, breach, causation (actual and proximate), and damages.

Question 29

Negligence: Duty

Answer 29

A duty of care is owned to all foreseeable plaintiffs. Where defendant’s conduct poses a risk to the plaintiff, his duty of care will run to the P. Under the majority view, a P is foreseeable if she is within the zone of danger created by the D’s conduct. Under the minority view, a P is foreseeable if she is injured by D’s conduct, regardless of zone of danger.

Question 30

Negligence: Breach

Answer 30

A defendant breaches his duty of care by failing to live up to the requisite standard of care.

Question 31

Negligence: Actual Cause

Answer 31

Actual, or legal cause, is determined under the “but for” test. A D’s breach will be the actual cause of the plaintiff’s injuries if the P can demonstrate that but for the D’s breach, her injuries would not have occurred.

Question 32

Negligence: Proximate Cause

Answer 32

The D’s conduct will be the proximate cause of the plaintiff’s injuries where the injuries suffered were within the increased risk created by the D’s conduct, and were a foreseeable result of the defendant’s conduct.

Question 33

Negligence: Damages

Answer 33

Any personal injury or property damages are sufficient to support a claim of negligence.

Question 34

Negligence Defense: Contributory Negligence

Answer 34

A P is also required to act reasonably to prevent their own injuries. Contributory neg will bar the plaintiff from recovery if the D can demonstrate that the plaintiff failed to live up to her own standard of care.

Question 35

Negligence Defense: Assumption of the risk

Answer 35

A plaintiff is similary barred from recovering if the D can demonstrate that the P subjectively knew of the risk and proceeded anyway, despite that knowledge.

Question 36

Negligence Defense: Comparative Negligence

Answer 36

Under Comparative Neg, if the jury finds that the plaintiff was at fault in causing her injuries, the jury will assign a percentage of fault to the plaintiff and her recovery will be reduced proportionately to her percentage of fault. Is considered based on the jurisdiction that views either pure comparative or partial comparative negligence.

Question 37

Pure Comparative Negligence

Answer 37

A plaintiff will still be able to recover some damages, so long as the defendant is also negligent, regardless of the percentage of fault assigned to her by the jury.

Question 38

Partial Comparative Negligence

Answer 38

When the plaintiff’s degree off fault exceed a certain amount, (usually 51%), they will be barred from recovering.

Question 39

Negligence Per Se

Answer 39

Under neg per se, a defendant has breached his duty if he violated a 1) statute addressed at the behavior, 2) the statute was designed to protect against a specific type of harm, 3) the statute protected a specific class of people in a way the statute was designed to protect. Defendants can argue that in the situation it was more reasonable to not follow the statue, because the statute was vague and overbroad, or it would have been more dangerous to follow the statute than to violate it,

Question 40

Strict Products Liability

Answer 40

Products can be defective in design, manufacture, or label. For a company to be strictly liable, it must be apart off the distributor chain. It could be a manufacturer, distributor, or retail. Companies that do not regularly sell products cannot be held strictly liable. There are three kinds of defects in products liability: manufacturing defect, a design defect, and a failure to warn defect which is a subset of a design defect.

Question 41

Joint and Several Liability

Answer 41

If actions by two different defendants combine to cause injury to a plaintiff, neither of which alone would have caused the injury, the defendants will be held jointly and severally liable. If defendants are held jointly and severally liable, then the P can recover the entire amount of damages from either or both defendants once.

Question 42

Misrepresentation

Answer 42

A misrepresentation is a 1) statement of fact, 2) that is false, and 3) either material or the known to the declarant to be untrue, and 4) which induces a person to act to their detriment in reliance on the representation.

Question 43

Assault

Answer 43

Is the intentional creation of apprehension in another of immediate bodily harm. Apprehensions means that the victim must be aware of the threat against them. Assault requires more than just threatening words alone, it must be accompanied by an action. Time frames attached to threats generally do not lead to an assault charge.

Question 44

Battery

Answer 44

Is the intentional infliction of bodily harm caused by harmful or offensive touching to another person. Objects connected to a person are also in the zone of harm of a battery.

Question 45

Trespass to Chattel

Answer 45

Occurs where property had been taken for a short period of time or harmed but not completely destroyed. Extends to pets as well.

Question 46

Conversion

Answer 46

Substantial interference with P’s possessory right to personal property. Substantial interference involves the complete destruction of the property or long term deprivation.

Question 47

Defense of Others

Answer 47

A person may use reasonable force in defense of another when that person believes that the other is in danger of immediate bodily harm. The force must be proportionate to the threat. Protects against liability for any battery committed against Jack.

Question 48

Transferred Intent

Answer 48

The intent to commit an intentional tort, such as battery, against one plaintiff may be transferred to another plaintiff if the harm actually befalls on the second plaintiff.

Question 49

Defense of Insanity

Answer 49

Insanity is not a defense to an intentional tort unless the mental defect is such that the tortfeasor does not understand the nature of his act.

Question 50

Products Liability: Manufacturing Defect

Answer 50

Is a defect caused during the manufacture of the product, whereby the product becomes unreasonably dangerous as a result of a problem during the manufacturing process. The defect is a result of a “one off” problem where the product emerges more dangerous than the other products that are manufactured with it.

Question 51

Design Defect

Answer 51

A design defect occurs when a product as designed is unreasonably dangerous, and is measured in terms of whether there is a “reasonable alternative design” for the product that makes it more safe without impairing its utility and function and without making it unduly expensive so as to price the defendant out of the market.

Question 52

Failure to Warn Defect

Answer 52

If there are either no warnings or inappropriate warnings on a dangerous product, this is a type of design defect.

Question 53

Vicarious Liability

Answer 53

Attaches to an employer, when the employee commits a tort while performing an act in the scope of their employment.

Question 54

Fireman’s Rule

Answer 54

Firefighters and police officers who engage in dangerous activates in connection with their jobs are barred from bringing suits for injuries sustained from those activates. The rationale is that the nature of the job is such that the police assume the risks of their jobs.