Torts Final

Question 1

Damages in Intentional Torts

Answer 1

1. Compensatory = economic, lost wages, medical expenses, pain and suffering, mental/emotional
2. Nominal = seeking an award ex: T Swift $1
3. Punitive = conduct/ intent is malicious; punish, not looking for compensation

Question 2

Transferred Intent

Answer 2

Initial intent transfers to the tort the defendant actually committed, or to the person the defendant actually harmed
-applies to; assault, battery, false imprisonment, trespass to land and trespass to chattels.

Question 3

Battery

Answer 3

Intentional Tort to Person
1. Act = voluntary
2. Contact = cause touching, harmful OR offensive (offends a reasonable person)
3. Intent = mental state, purpose or goal, knew with substantial certainty
single intent = defendant intended to touch
dual intent = defendant intended to harm or offend by touching

Question 4

Assault

Answer 4

Intentional Tort to Person

1. Acts w/
2. Intnet
   a. To cause h/o contact OR
   b. cause imminent apprehension of h/o contact (scare/intimidate)
3. IMMINENT APPREHENSION = victim reasonably believes the actor can and will perform a battery
   ex: girl, trailer, family, gun

Question 5

False Imprisonment

Answer 5

Intentional Tort to Person
1. Intent
2. Act = confinement = limit freedom of movement by
I. physical restraint
II. threats or duress
III. false pretenses of lawful authority
3. Result = awareness OR harm = victim is conscious of confinement and harmed by it

Question 6

shopkeepers privilege

Answer 6

shopkeeper may detain someone they reasonably believe to be shoplifting but only for a reasonable amount of time and in a reasonable manner

Question 7

Intentional Infliction of Emotional Distress (IIED)

Answer 7

Intentional Tort to Person

1. Acted intentionally or recklessly
2. Conduct was extreme and outrageous = highly unusual conduct exceeds common insults
3. Causal Connection between conduct and emotional distress (pre-existing mental issues, diagnosable condition, physical result)
4. Emotional distress was severe = greater than reasonable person would endure under the circumstances

• repeated behavior
• hard to prove IIED because there is no contact

Question 8

Intentional tort to Property

Answer 8

1. Land = does not need to know are “trespassing”
2. Intent = Intend to commit act that cause
3. Entry = physical entry
   - enters land without consent or fraudulent consent, and interferes with the landowners’ interest

Question 9

Conversion of Chattel

Answer 9

1. Intentionally exercise dominion and control over the personal property of another
2. In another’s possession
3. Interferes with the victim’s rights = substantial damage, duration of control, destruction
   - awarded damages of chattel at full value at the time

Question 10

Trespass to Chattel

Answer 10

(short of conversion)

1. Intentionally does an act
2. happens to interfere with
3. the victim’s superior right to possess chattel but
4. not seriously enough to justify requiring payment of its full value

Question 11

Consent

Answer 11

Defense
to be effective must:
1. know all material facts
2. consent without duress of coercion
3. not underage
4. suffer no mental defect

Invalid for:

• children
• mentally ill
• fraud/duress
• inmates sexual contact
• therapist

Question 12

Self Defense/ Defense of Person

Answer 12

Reasonably necessary (even if by mistake) to defend self against another

1. deadly force is permitted if necessary to prevent imminent death or SBI
2. initial aggressor privilege = use force in defense if (1) use excessive force OR (2) uses force after initial aggressor backs off, clearly communicated intent to stop = lose privilege for using excessive force
3. there is no privilege to use any force that causes death or serious injury to defend property because the law places a higher value on human safety than rights to property ex: no spring guns

Question 13

Public Necessity Defense

Answer 13

1. Context = disaster situation that involves the public
2. Necessity = actor reasonably believes interfering with another’s property is necessary to avoid public disaster
   
   • for trespass to land disaster must be imminent
   • not liable for property damages that is reasonably necessary if done in good faith

Question 14

Private Necessity Defense

Answer 14

The actor reasonably believes that interference with another property is necessary to prevent serious harm to persons or property.

• The actor must compensate victim for damaged or lost property
• If you create the problem you cannot say there is a private necessity

Question 15

Elements of Negligence

Answer 15

1. Duty
2. Breach
3. Cause in Fact
4. Proximate Cause
5. Harm/Damages

Question 16

Duty

Answer 16

a duty generally arises if it is reasonably foreseeable that the actor’s conduct will harm someone else.

• RPP = behave as a reasonable and prudent person
• Persons obligation is to take reasonable precautions to prevent the occurrence of foreseeable harm to others.
• Not an absolute standard, you do not have to do everything possible to avoid harm
• as circumstances change reasonable expectations change as well

Question 17

Sudden Emergencies Doctrine

Answer 17

person who, through no fault of his or her own, is placed in a sudden emergency, is not chargeable with negligence if the person exercises that degree of care which a reasonably careful person would have exercised under the same or similar circumstance

• not foreseeable and not of own making
• subjective because it’s your best judgment
• driving too close = own negligence and not a sudden emergency

Question 18

Children Standard of Care

Answer 18

different standard of care for kids because its recognized that kids develop differently

• look at other kids the same age, intelligence, and experience = subjective
• exception: When in engaged in inherently dangerous activity or adult activity
• Rule of 7’s = kids are not liable

Question 19

Mental Disability Standard of Care

Answer 19

a mentally disabled person is held to the standard of care of a reasonable person under like circumstances regardless of the person’s ability to understand or control his or her actions
-no defense for mentally disabled

Question 20

Physically Disabled Standard of Care

Answer 20

based on other people with the same disability

Question 21

Professional Standard of Care

Answer 21

held to a higher standard of care because they have superior knowledge

• still RPP
• ex: doctor has the same standard of care as another reasonable doctor

Question 22

Medical Emergency

Answer 22

if unforeseeable medical emergency then not held to reasonable standard of care, instead “good faith”

• ex: having a heart attack while driving
• cannot contribute to the emergency (ex: not taking insulin)
• if in labor getting to hospital then is foreseeable going to have a baby and not medical emergency

Question 23

Negligence Per Se

Answer 23

specific statute that requires / prohibits a certain behavior

• statute replaces common law and provides a civil remedy
• Four Step Analysis: (Oguin)
  
  1. does the statute clearly define the prohibited conduct?
  2. is P’s injury the type the statute is designed to prevent
  3. is P within the class of persons the statute is designed to protect
  4. is the statutory violation the proximate cause of P’s harm
• Oguin proves duty and breach but in MD only proves some

Question 24

Foreseeability Duty

Answer 24

a duty generally arises if it is reasonably foreseeable that the actors conduct will harm someone else

• Zone of Danger
• Rescue Doctrine
• Firefighter’s rule

Question 25

Zone of Danger

Answer 25

the plaintiff is to prove that he was immediately threatened with physical injury

• imminent apprehension of physical harm which causes or contributes to emotional injury (NEID)
• actually reasonably fear for her own safety
• some jurisdictions require symptoms

Question 26

Rescue Doctrine

Answer 26

if an actor negligently puts herself or another in a dangerous situation it is reasonably foreseeable that someone will be hurt trying to render assistance

Question 27

Firefighter’s Rule

Answer 27

in some jurisdictions, the rescue doctrine does not create a duty to professional rescuers

• assume risk of employment
• injured while performing the duties of their profession
• exception: when the injury is not job related when there is no causal relationship

Question 28

Duty to Assist Others

Answer 28

generally no duty to assist or rescue others unless voluntarily undertake to rescue or assist then the duty is exercise reasonable care under the circumstance to avoid injuring or further injuring

• Breach when:
  
  1. attempt fails
  2. failure deters or impedes others rescue efforts
• there is a duty to assist when the victim reasonably relies on the actor’s promise or representation to act a certain way

Question 29

Public/Guest/Landowner Duty

Answer 29

status is not permanent and can change

1. Invitee = reasonable/ ordinary care = an invitee is a person on the property for a purpose related to the possessors business. RPP.
2. Licensee = a social guest; also includes a person on the property wit permission but for his own purpose. no financial benefit. Duty to warn of risk known to the landowner. duty to refrain from wanton misconduct
3. Trespasser = someone who intentionally and without consent or privilege enters another’s property. no duty except to refrain from intentionally willfully or wantonly injuring the tressper until the trespasser is discovered than has a duty to warn of known dangers (ex: opens door to room told not to does not have to be explicit)

Question 30

Duty to Child trespasser

Answer 30

• trespasser standard
• attractive nuisance = never applies to natural conditions (ex: tree/river)
• liable if all elements are present:
  1. condition on land involves unreasonable risk of death or serious bodily injury to children
  2. children are likely to trespass where dangerous condition is located (children live in the neighborhood is not enough)
  3. because of the youth of children they do not discover condition or realize risk of intermeddling with it coming within area made dangerous by it (older= less likely to apply)
  4. utility to possors of mainiting condition and burden of eliminating danger are slight as compared to risk to children
  5. possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children

Question 31

Common Carriers Duty

Answer 31

heightened standard because it is their business to provide public transportation
-airplanes, trains, buses

Question 32

Medical Malpractice Duty

Answer 32

standard of care is based on locality and what another reasonable doctor would do (can pick one of multiple options)

• virtually always need expert testimony
• Disclosing information
  
  • traditional = disclose that the reasonable medical practitioner thinks is important (not RPP)
  • modern = duty to disclose a reasonable manner all significant medical medical information that the physician possess or reasonably would possess that is material to an intelligent decision by the patient
• the modern approach gives more to the patient to make a decision not just what the doctor thinks the patient needs to know

Question 33

Duty to Third-Parties

Answer 33

no duty to protect a victim by controlling a third party unless there is a special relationship between the actor and the victim or the actor and the third party who harms the victim

• voluntarily undertakes protection = reasonable care in providing protection
• people in custody = a person in lawful custody of another may be unable to protect themselves from harm and the custodian owes the person a duty to employ reasonable care to protect the person against third parties (also schools and prisons)
• business owners owe a duty to protect customers of other business invitees from the wrongful acts of third parties on the premises
  
  1. specific harm rule = no duty unless of aware of specific imminent harm about to befall
  2. prior similar incidents test = must protect if sufficient evidence of past crimes on or near that the proprietor could reasonably foresee similar crimes in the future
  3. totality of the circumstances = must protect invitees by using similar incidents and other factors
  4. balancing test = weighs the foreseeability and the burden and expense of protecting against that harm and social utility. the greater the weight against the burden the greater the steps must be taken
• Dram shop = if sell alcohol on premises for consumption there is a duty of reasonable care not to sell to a noticeably intoxicated person

Question 34

Landlord Duty

Answer 34

no duty when there is no notice so no obligation
landlord is not liable to the tenant or the tenant’s guests for injuries caused by defects on the premises. If voluntarily undertakes to repair a defect then the landlord is liable for injuries for failure to use reasonable care in making the repairs. liable if in control.

Question 35

Breach of Duty

Answer 35

breach of duty arises if the actor fails to conform to the applicable standard of care
-conduct has to be unreasonable under all circumstances
-show:
1. the actor could have pursued an alternative reasonable course (cost-benefit analysis)
2. would have prevented or mitigated the injury
direct evidence = proves fact without inference or presumption based on personal knowledge or observation
circumstantial evidence = based on an inference

Question 36

Res Ispa Loquitur

Answer 36

incident would not have occured in the absence of negligence

• occurs when there is a lack of evidence, never the starting point, does not create presumption of negligence just gets you to the jury
• plaintiff has to establish:
  
  1. event is of a kind that oridinarily does not occur in the absence of negligence
     2. instrumentality or agent which causes the accident was under the exclusive control of the defendant
  2. the circumstances indicate that P did not cause or contribute to the event (do not always need this element in certain jurisdictions)

Question 37

T.J Hooper

Answer 37

TJ hooper operator of tug boats sued on negligence claiming that neither tug was equipped with reliable radios that would have allowed them to receive the storm warning broadcast. Other tugboats on the same route receive the message and were pulled to safety.
Failure to provide radios to the boat was negligent because the cost of the radio was less than the cos of damage to the barge

Question 38

The hand formula

Answer 38

B < PL
B: the burden of the defendant in avoiding the hamr
P: probability that the plaintiff suffers harm due to the defendant actions
L: the loss/harm suffered by the plaintiff due to the plaintiff’s actions

Question 39

Employing others

Answer 39

Rule: the liability of the employer rests upon the assumption that the employer has better knowledge than the employees except where the employees knowledge exceeds the employer
Facts: P hired to work on D barn roof, fell through and was injured. D not liable b/c the roofer knows more about roofing

Question 40

Slip and Fall

Answer 40

to recover for injuries in a slip and fall accident the P must show that the premises owner either created a dangerous condition or had actual or constructive knowledge of a dangerous condition
P must prove:
1. the D created and failed to take reasonable actions to abate the hazard Or
2. the D did not create condition but noticed or should have noticed the condition and failed to act reasonably
3. the D’s mode of operation made it foreseeable that others would create a hazard

Question 41

Apportionment

Answer 41

Comparative fault = divides the fault among parties by percentages, and then accordingly divides the money awarded to the plaintiff. Each D pays the amount they are found liable for. (not in MD)
Joint and several Liability = a P can recover their tort claim against either tortfeasor or can obtain judgment against both; but cannot collect more than full damage. P picks D to recover from and whoever pays seeks contribution from others

Question 42

Factual Cause

Answer 42

To be a factual cause, the conduct must have been an actual, real factor in causing the harm, even if the result is unusual or unexpected

Question 43

Factual But-For test

Answer 43

(primary test)

but for the defendant’s breach of duty/ negligent ac would the plaintiff still be injured?

Question 44

Substantial factor test

Answer 44

If several causes could have caused the harm, then any cause that was a substantial factor is held to be liable

Question 45

Alternative causes

Answer 45

if one of multiple negligent actors caused the harm but proving which is impossible each must show that their negligence did not cause the injury or else liable

Question 46

Lost Chance

Answer 46

lost chance of recovery, P proves that defendant’s negligence caused the loss of a chance (potentially using the but-for test) but P only recovers for the percentage chance of recovery lost

Question 47

Proximate Cause

Answer 47

harm to be a reasonably foreseeable consequence of the defendant’s wrongful act

• scope of risk/liability
• only liable for harms of the same general type as the reasonably foreseeable risk from the breach

Question 48

Intervening Cause

Answer 48

An intervening cause that lies within the scope of risk, or has reasonable connection to it, is not superseding cause (not liabile) that releases tortfeasor from liability

Question 49

Eggshell-Thinskull-Plaintiff

Answer 49

the defendant takes the plaintiff as she finds him, with all the plaintiff’s particular vulnerabilities. Liability does not change for unknown condition in P

Question 50

Misfeasance v. Nonfeasance

Answer 50

not liable for nonfeasance (failing to act) but liable for misfeasance (affirmative harmful conduct = negligence in doing something active)

Question 51

Helpless Peril

Answer 51

If the actor has reason to know of peril then the actor owes the victim a duty to use reasonable care to prevent the foreseeable harm

Question 52

Harm/Damages

Answer 52

harm is loss

• personal injury or property loss is recoverable
• emotional harm recoverable only if:
  - physical harm or,
  - IIED or,
  - NIED

Question 53

Negligent Infliction of Emotional Distress

Answer 53

allows for recovery when there is no physical harm

1. victim is foreseeable places
2. at significant unreasonable risk
3. imminent physical injury that never materializes
4. this causes the victim severe emotional distress

Question 54

Bystander Rule

Answer 54

a bystander may recover for NEID is she suffers severe emotional distress from watching the actor negligently injure another

• close family member
• must be present and perceive the injury as it occurs

Question 55

Contributory Negligence

Answer 55

when both are negligent Plaintiff does not recover

Question 56

Statute of Limitations

Answer 56

imposes time limits on claims

• if past SOL look at statute of repose
• traditionally starts at date of injury. When difficult to decide becomes a question for the jury
• Discovery rule= on a date P knew or should have known of injury. not just discovering “i dont feel well” but discovered there is an actual injury that is the result of malpractice

Question 57

Statute of Repose

Answer 57

1. puts limit on right to bring an action
2. limit is measured not from the date on which the claim occurs but instead from the date of the last culpable act or omission from the D
3. statutory language = 10 years from the date of the act giving rise to the cause of action

Question 58

Governmental Immunity

Answer 58

under circumstance where the US (if they were a private person) would be liable to the claimant and use the law where act/omission occurred.

• design issue = cannot sue
• implementation issue = can sue
  1. Step 1: is there a private party that can be sued in this instance
  2. Step 2: discretionary function exception (cannot sue)
  - does the actor have a choice to make = if the action is required by statute,policy or regulation then not discretionary in nature
  - does the action involve a policy decision

Question 59

Liability Theories

Answer 59

• a plaintiff may recover damages from a liable defendant
• liability must be apportioned among responsible parties
• if the responsible parties acted independently, each is responsible for the portion of the injury he caused. If impossible to tell which party caused which portion the fact finder will allocate percentages of fault
• concert = if multiple tortfeasors knowingly acted in concert each is jointly and severally liable for 100%
• vicarious, strict, products

Question 60

Vicarious Liability

Answer 60

hold on entity responsible for the torts of another

Question 61

Respondent Superior

Answer 61

under vicarious liability

• an employer is vicariously liable for an employee’s tort when there is a relationship and the act was within the scope of employment/ done in furtherance of business interest. MUST BE WITHIN THE SCOPE OF EMPLOYMENT
• employer liable without any need to establish fault on part of the employer
• employer liable for intentional torts when act done is foreseeable in view of the duties of the servant, even if the act was authorized

Question 62

Independent contractor analysis v. master-servant

Answer 62

under vicarious liability

• master-servant = control over the employee, told what to do and how to do it ex: uniform and company material
• independent contractor = independent judgment as to the manner of performing the work. liable for independent contractor when doing inherently dangerous work = if the employer knows or should know work creates a peculiar risk of harm

Question 63

Scope of Employment Test

Answer 63

• there must be a tort for there to be liability
  1. conduct is the kind the employee is authorized to perform
  2. conduct occurs substantially within the authorized time and space restrictions
  3. conduct is done in some part in furtherance of the interests of the employer

Question 64

Frolic v. Detour

Answer 64

frolic = personal mission and employer not liable
detour = trivial departure and employer is liable

Question 65

going and coming rule

Answer 65

an employee going to and from work is outside the scope of employment
exceptions:
1. on call
2. employer requires employee to drive own vehicle to work and use for work related tasks
3. job related errand during commute
4. commute serves dual purpose for employee and employer

Question 66

When respondent superior fails

Answer 66

• negligent hiring = failing to use reasonable care in the hiring process, resulting in hiring an unfit employee who injures a third party
• negligent retention = same concept, but retaining a knowingly unfit employee
• key issues = proving breach (what the employer should have done in hiring process) and proximate cause (what are the foreseeable risks posed by hiring this employee and was the harm within those risks)

Question 67

strict liability for land / non-nusiance

Answer 67

the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, he is prima facie answerable for a; te damage which is natural consequences of its escape
-can excuse themselves if the injury was due to the plaintiff’s fault or an act of god

Question 68

strict liability for abnormally dangerous activity

Answer 68

• one who carries on an abnormally dangerous activity is subject to liability for the damage to persons, land, or chattels harmed by the activity , even when exercise the utmost care to prevent harm
• limited to the kind of harm that makes the activity abnormally dangerous
• ex: blasting, explosives, poisons, hazardous waste, etc
• test to determine if abnormally dangerous
  1. existence of a high degree of risk of some harm to the person, land, or chattels of others
  2. likelihood that harm that results from it will be great
  3. inability to eliminate the risk by the exercise of reasonable care
  4. extent to which the activity is not a matter of common usage
  5. inappropriateness of the activity to the place it is carried and
  6. extent to which its value to the community is outweighed by its dangerous attributes

Question 69

strict liability for animals

Answer 69

1. livestock = generally owner of farm animals is strictly liable for personal injury or prop damage
2. domesticated animals = strictly liable if at the time of injury the owner knows of should know the animal has a vicious tendency or is foreseeable and the harm ensues from that tendency
3. wild animals = strict liability for injuries in connection with lions, tigers, and bears

Question 70

strict liability for nuisance liability

Answer 70

1. must substantially interfere with the plaintiffs use and enjoyment of her land
2. invasion must be unreasonable to expect that the plaintiff would put up with the invasion
   
   • look at time, place, exceptions of location
   • does the gravity of the harm to the P outweigh the utility of the Ds conduct
3. coming to the nuisance = if the P moved in next to the nuisance they can not bring a nuisance claim
   - possible the P has already been compensated when coming to the nuisance
4. environment and zoning - eventually a claim can be brought if the area is changing (ex: developing neighborhood next to pig farm)

Question 71

Products liability

Answer 71

one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer or to his property if:
-the seller is engaged in the business of selling such a product and
-it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold
-includes everyone in the supply chain of the product from manufacturer to seller - dont care about the process just the product
-applies even though the seller has exercised all possible care in the preparation and sale of his product and
-the user or consumer has not bought the product or entered into any contractual relation with the seller
-only strictly liable when there is damage to property not just the product itself
What makes a product defective?
1. defective manufacture
2. defectively designed
3. inadequate warning

Question 72

Food defects

Answer 72

two tests:

1. consumer expectations = defective if a reasonable consumer would not expect the food to contain the ingredient
   
   • peanuts is natural substance but consumer many not expect it to be there, different expectations
2. foreign/natural = defective if the ingredient is foreign.
   - hard to prove negligence with a food defect because hard to prove breach easier to prove strict liability

Question 73

manufacturing defects

Answer 73

product is defective if it is dangerous beyond the contemplation of the ordinary consumer would expect

• can occur even if nothing at all wrong with the product’s design
• prove by:
  1. direct evidence = usually from an expert as to the cause
  2. circumstantial evidence = circumstantial evidence alone is enough to show manufacturing defects
  - expert testimony
  - short time after sale
  - same accidents, similar products
  - elimination of other causes
  - type of accident does not happen without defect
  3. res ipsa
  4. cannot use a recall as evidence against the company because want to encourage the companies to make products safer

Question 74

Design defects

Answer 74

defective where:

1. P demonstrates it failed to perform as safely as ordinary consumer would expect when used in intended or reasonably foreseeable manner
2. P proves design proximately caused his injury and D fails to prove on balance the benefits of the design outweighs the risk of danger inherent in the design
3. consumer expectation test
4. risk utility test RAD = reasonable alternative design = more common than consumer expectation test =
   
   • defendant not liable for design defect if evidence shows that the product’s utility outweighs its inherent risk of harm
   • would have been safer for producer and prevented or significantly reduced risk of injury
   • would not have been less safe in other circumstances and increased the risk to other users
   • would not substantially impair the product’s utility
   • economically and mechanically feasible
5. crashworthiness doctrine = a liability is imposed on a vehicle manufacturer if design defects cause additional damage in an accident, apart from the direct damage caused by the collision

Question 75

warning / information defect

Answer 75

1. fails to include reasonable warning or instructions about reasonably foreseeable risk and
2. the omission makes the product unreasonably dangerous
   - no duty to warn about risk that should be obvious to a foreseeable user
   - need not warn where standards change after product is done being manufactured
3. heeding presumption = recovery for an inadequate warning requires proof that the victim would have heeded the warning or instruction had it been provided, Otherwise, causation fails because the warning would not have made a difference