TORTS - Fall 2012

Question 1

Trespass to Chattel

Answer 1

A trespass to a chattel may be committed by intentionally:

(a) dispossessing another of the chattel, or
(b) using or intermeddling with a chattel in the possession of another

Question 2

R2T218 - Liability to Person in Possession

Answer 2

One who commits a trespass to a chattel is subject to liability to the possessor of the chattel, if, and only if,

(a) he dispossesses the other of the chattel, or
(b) he chattel is impaired as to its condition, quality or value, or
c) the possessor is deprived of the use of the chattel for a substantial time, or
(d) bodilt harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest

Question 3

R2T222A - Conversion Defined (1) of (2)

Answer 3

(1) Conversion is an intenitonal exercise of dominion control over a chattel which is so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.

Question 4

R2T 222A - Elements to Conversion (2) of (2)

Answer 4

(2) In determining the seriouslness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:
(a) the extent and duration of the actor’s exercise of dominion or control;
(b) the actor’s intent to assert a right in fact inconsistent with the other’s right of control;
c) the actor’s good faith
(d) the extent and duration of the resulting interference with the other’s right of control;
(e) the harm done to the chattel
(f) the inconvenience and expense caused to the other.

Question 5

Concept of Intent

Answer 5

R3T §5 “Actor who intentionally causes physical harm is subject to liability for that harm.”
The phrase “intentionally causes physical harm” describes tortious intent
It is both an intentional act and a harm.
This concept applies to Torts for Physical Harm (R3T) and other intentional torts.

Question 6

Battery - SATL Def.

Answer 6

Intentional infliction of unconsented bodily contact that is harmful or offensive.

Question 7

Battery - Rest. Definition

Answer 7

R2T § 13 (harmful) ; § 18 (offensive):
An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of another or a third person, or an imminent apprehension of such contact, and
(b) a harmful or offensive contact with the person of the other directly or indirectly results.

Question 8

Assault - Rest. Def. R2T21

Answer 8

R2T § 21. Assault.

(1) Act intending to cause battery or imminent apprehension of battery
(2) P is thereby put in such imminent apprehension.

Question 9

Intentional Infliction of Emotional Distress - Rest.

Answer 9

AKA: OUTRAGE

R2T § 46
(1) Extreme or Outrageous Conduct
(2) Causing severe emotional distress
Can commit IIED/RIED/Outrage to 3P
(1) Member of immediate family who is present whether or not distress results in bodily harm, or
(2) Any other person who is present if distress results in bodily harm.

Question 10

False Imprisonment - Rest 2T35

Answer 10

(1) Δ acts to confine P or 3P within boundaries fixed by Δ
(2) Δ’s act directly or indirectly results in such a confinement
(3) P is conscious of the confinement or is harmed by it.

Exception: Reasonable means of escape known to P

Question 11

Assault - Common Def.

Answer 11

Assault: Apprehension of imminent contact that is harmful or offensive

Question 12

Confinement

Answer 12

Reasonable escape includes slight inconvenience, embarrassment, “technical invasion” of property
Being forced to follow
Retention of property 
Partial interference is not confinement
Without Consent
Exception: Consent can be revoked

Question 13

Modes of Confinement

Answer 13

Physical barriers—
Look for island, ship, security area, locked room
Palatial yacht, luxury hotel large ranch can be boundaries

Use of force
Threat of imminent use of force
Assertion of legal authority
Forced to follow
Retention of property
cf. Noble v. Louisville Transfer

Question 14

Conversion (what to look for)

Answer 14

Demand for return—If D obtained chattels legitimately, there is no conversion until possessor demands return or there is an independent act of conversion. (Watch for pawn shop, tow yard, storage facility, etc.)

Bona Fide Purchasers [for value]—If ignorant of seller’s wrongful possession, will be protected. (Watch for $15 iPad4, etc.)

Question 15

Manifestation of Consent

Answer 15

Actual consent manifested by:
Words
Affirmative actions (nodding, presenting arm, etc.)
Silence or inaction when non-consenter would speak or take action (e.g., withdraw)
Effective even if not communicated to D

Question 16

Capacity (3 i’s) relating to consent

Answer 16

3 I’s (Infancy, Insanity, Intoxication) prevents consent if it precludes appreciation of nature, extent and probable consequences of “consensual” conduct

Question 17

Implied consent

Answer 17

“Legal fiction”

Question 18

Implied consent rationale

Answer 18

Court reasons that invasion is less important than interest protected by invasion such that a person would consent.

Question 19

When Mistake Caused by D vitiates consent

Answer 19

1. Mistake caused by D’s fraud
   MAJ: Vitiates consent
   min: Fraud in the essence—material misrepresentation
   Cf. Fraud in the inducement
   Trend: Any material fraud known to D and unknown to P
2. Mistake caused by D’s negligence may vitiate consent
3. Mistake not caused by D; Mutual mistake does not vitiate consent

Question 20

Consent obtained by duress

Answer 20

Consent obtained by duress is invalid
Force or threat of force
P, his family
P’s and his family’s property
Economic force not recognized (but look for special relationship (common carrier, boss, acting teacher)

Question 21

consent to criminal act

Answer 21

Consent to criminal act (e.g. mutual combat)
R2T § 829C(1) Consent is effective
Split: Cannot consent to an act the law forbids

Question 22

unequal position

Answer 22

Unequal position (in pari delicto) Parties may both be wrong, but one may be protected by law (e.g. boxer but not boxing promoter of illegal match )

Question 23

Defense of Self and Others

Answer 23

Not available to aggressor unless he abandons attack in which case other party may become aggressor
Reasonable mistake does not defeat privilege.
min: Actor steps in shoes of “victim”
Retaliation is not defense.
Retreat
Min: Duty to retreat except home (m/b work)
Statutory limits on duty to retreat. E.g., Florida v. Zimmerman.
Battered woman syndrome—Jury nullifications, executive clemency but no reported cases
Defense of self and others bars negligence claims
Scope of response—reasonable vs. best

Question 24

Defense of Property

Answer 24

Mistake of fact does not destroy privilege.
Mistake as to superior privilege does destroy privilege. (unless induced by P)
Case may involve threats to Property and People
Defense against animals follows same rules
Statutory expansion may allow use of deadly force to defend property

Question 25

Recapture of Chattels

Answer 25

Applies to property taken by fraud, force or other tortious conduct
Reasonable time
D liable for mistake creating privilege
P has no right to resist reasonable force

Question 26

Detention for Investigation (Rest. 120A)

Answer 26

R2T §120A—
Reasonable belief
D tortiously took chattels
On premises
Privileged to detain on premises for reasonable investigation

Question 27

Public Necessity

Answer 27

Imminent and impending peril
May be exercised by private citizens
Privilege no greater than necessity

Question 28

Private Necessity

Answer 28

Benefit protects D rather than public
D not liable for tort
Incomplete privilege
D must pay damages
Possessor of land must allow D to enter and remain while private necessity exists
Usually available even if D created emergency
Must be reasonable time and manner

Question 29

Equitable Principles

Answer 29

One may not profit from his own wrong
One who comes into equity must come with clean hands
One who seeks equity must do equity

Question 30

Negligence - CA Civ Code 1714

Answer 30

Civil Code § 1714
“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill . . .”

Question 31

Policy Considerations

Answer 31

Foreseeability
Certainty
Connection between D’s conduct and injury to P
Moral blame
Consequences to community

Question 32

Negligence - Rest. 289

Answer 32

Unreasonable conduct:
R2T § 289—Recognizing Risk
RP attention, perception of circumstances, memory, knowledge of other pertinent matters, intelligence and judgment
Δ’s superior attention, perception

Question 33

Duty: As defined by 2 Judges

Answer 33

Cardozo—Duty exists if the court says there is a duty (Zone of Danger)

Andrews—Duty exists if D’s action causes P’s injury (World Duty)

Question 34

Landowner is liable if: (Rest 339)

Answer 34

Knows (or should know) children likely to trespass and
Unreasonable danger to children and
Children unable to realize risk and
Utility of danger and burden of precaution are outweighed by risk [UB < PL] and
Lack of reasonable care by owner to eliminate danger

Question 35

Reasonable Person Standard R2T 283

Answer 35

Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.

Question 36

R2T 283A - Children

Answer 36

similar age, intelligence and experience

Question 37

R2T 283B - Mental Deficiency

Answer 37

No relief unless child

Question 38

R2T 283C Ill/Physical Disability

Answer 38

RP under similar illness/disability

Question 39

Common Strict Liability Statutes (6)

Answer 39

Child Labor Laws
Pure Food Acts 
Federal Safety Appliance Act
Federal Safety Appliance Act
“Safe Place” statutes (e.g. lights in apartment complexes open to public)
Sale of firearms, etc. to minors

Question 40

Negligence

Answer 40

Unreasonable Conduct

Question 41

Standard of Care

Answer 41

Duty

Question 42

Unreasonable

Answer 42

conduct below standard of care

Question 43

circumstantial evidence

Answer 43

Event giving rise to the harm does not ordinarily occur w/o negligence (may require expert testimony more likely than not)

Single defendant (ex. Ybarra v. Apangard)
Instrumentality under “exclusive” control of P
No evidence of causation
P did not contribute to own injury

Question 44

Negligence (tort of 4 elements)

Answer 44

1. duty of reasonable care
2. breach of that duty
3. causation
4. resulting damages

Question 45

The “Hand Formula” case name

Answer 45

US v Carroll Towing Co. (2d Cir 1947)

Question 46

The “Hand Formula” algebra

Answer 46

B < PL where:
Probability = P
Injury = L
Burden = B

Question 47

The “Hand Formula” explained

Answer 47

The Reasonable Person, Hand postulates, takes a precaution against injury if the burden of doing so is less than the loss if the injury occurs multiplied by the probability that the injury will occur.

Question 48

contributory negligence

Answer 48

Conduct on the part of P that is contributing cause of his own injuries and that falls below the standard of care to which he is req’d to conform for his own protection.

Question 49

comparative negligence (“Pure”)

Answer 49

virtually all states reject the rule that contributory negligence is an absolute bar to recovery and base liability on the comparative fault of P & D.

Question 50

comparative negligence (“partial”)

Answer 50

P may recover damages for % that D is liable only if P’s own negligence is less than a certain threshold level.

Question 51

direct evidence - defined

Answer 51

real, tangible or clear evidence of a fact, happening or thing that requires no thinking or consideration to prove its existence, as compared to circumstantial evidence.

Question 52

Mode of Operation approach

Answer 52

approach is a viable alternative to proof of actual or constructive notice in slip-and-fall cases.

Question 53

Bus. Premises Liability Approaches (Traditional)

Answer 53

Possessor had actual or constructive notice of dangerous condition P would not discover or appreciate and fails to take reasonable precautions.

Question 54

Bus. Premises Liability Approaches (Mode of Operation)

Answer 54

If D’s business methods (e.g., self-service grocery stores) give rise to foreseeable risks from patron’s carelessness (e.g., spillage and breakage), owner must take reasonable precautions.

Question 55

Bus. Premises Liability Approaches (Burden-shifting)

Answer 55

If P proves that transitory foreign substance in self-service store caused slip-and-fall, P has created a rebuttable presumption of negligence.

Question 56

Res ipsa loquitur translated

Answer 56

“The thing speaks for itself”

Question 57

Res Ipsa Loquitur

Answer 57

Circumstantial Evidence

Creates rebuttable inference of Negligence

Question 58

Doctrine of res ipsa loquitur

Answer 58

Determine from the language in the principal opinions the procedural effect the various jurisdictions accord to res ipsa evidence.

Question 59

Res Ipsa Loquitur in CA law

Answer 59

*Under California law, the application of res ipsa loquitur shifts the burden of production to the ∆. Unless the ∆ comes fwd w/ evidence suggesting that it was not negligent or that its negligence did not proximately cause the injury, the jury is required to find that the accident resulted from the ∆’s negligence. (Cal. Evid. Code § 646 Law Rev. Commission cmt. (Westlaw 2009).

Question 60

Negligence (elements)

Answer 60

The elements of a cause of action in tort for negligence are: (1) a duty to use ordinary care; (2) breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury and (4) resulting damage. (Budd v. Nixen (1971) 6 Cal.3d 195, 200.)

Question 61

Negligence - CA Civ Code 1714 (a)

Answer 61

Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person. (Cal.Civ.Code § 1714(a).)

Question 62

Contributory Negligence - Rest.2T463

Answer 62

“Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff’s harm.” (Rest. 2d Torts, § 463.)

Question 63

Design Defect (5) Elements

Answer 63

1. The defendant was the manufacturer or supplier of a product;
2. The product possessed a defect in its design;
3. The defect in design existed at the time it left the defendant’s possession;
4. The defect in design was a cause of injury to the plaintiff; and
5. Plaintiff’s injury resulted from a use of the product that was reasonably foreseeable by the defendant.

Question 64

Comparative negligence

Answer 64

Comparative negligence is a defense to strict liability. (Daly v. General Motors (1978) 20 Cal.3d 725) Comparative fault is negligence on the part of a plaintiff which combining with the negligence of a defendant or with a defect in a product or with negligent or wrongful conduct of others contributes as a cause in bringing about the injury.

Question 65

IIED (Elements)

Answer 65

(1) outrageous conduct by the defendant;
(2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress;
(3) the plaintiff’s suffering severe or extreme emotional distress; and
(4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Alcorn v. Anbro Engineering, Inc (1970) 2 Cal.3d 493, 497-498

Question 66

Emotional Distress - defined

Answer 66

The term “emotional distress” means mental distress, mental suffering or mental anguish. It includes all highly unpleasant mental reactions, such as fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and indignity, as well as physical pain.

Question 67

Offensive conduct - defined

Answer 67

A contact with the plaintiff’s person is offensive if it offends a reasonable sense of personal dignity. To be offensive, the contact must be of a character that would offend a person of ordinary sensitivity, and be unwarranted by the social usages prevalent at the time and place at which the contact is made.