Torts for Finals

Question 1

Shared elements of Assault & Battery

Answer 1

Share: An act with Intent to create a harmful or offensive contact or the apprehension thereof.

Question 2

Battery

Answer 2

1) ACT
2) INTENDING to cause HOO contact with person of the other or a 3rd person, OR imminent apprehension of such contact AND,
3) RESULT: Harmful contact with person of the other results directly or indirectly.

Question 3

Assault

Answer 3

1) ACT
2) INTENDING to cause HOO contact with person of the other or 3rd person OR imminent apprehension of such contact AND
3) RESULT the other is put in such imminent apprehension.

Question 4

False Imprisonment

Answer 4

1) ACT
2) INTENDING to confine the other, or a 3rd person w/in boundaries fixed by actor, AND
3) RESULT directly or indirectly results in confinement of the other AND the other is conscious of confinement or is harmed by it.

Question 5

Defenses to Intentional Torts

Answer 5

1) Consent, expressed or implied
2) Fraud
3) Duress
4) Public Necessity
5) Private Necessity
6) Defense of self or others
7) Defense of property
8) Discipline

Question 6

Trespass

Answer 6

1) ACTS
2) INTENDING to make contact either himself or through instrumentality.
3) RESULTING contact with real property.

Question 7

Intentional Infliction of Emotional Distress

Answer 7

AKA Outrage:

1) An actor who, by extreme AND outrageous contact intentionally or recklessly causes severe emotional harm to another.

Question 8

Prima Facie Case of all Intentional Torts

Answer 8

To establish a prima facie case for any intentional tort, the plaintiff must prove:

1. Act by Defendant: The act required is a volitional movement by the defendant.
2. Intent: Intent may be either specific or general.
3. Causation: The result must have been legally caused by the defendant’s act or something set in motion by him.

Question 9

Transferred Intent

Answer 9

The transferred doctrine applies when the defendant intends to commit a tort against one person but instead; (i) commits a different tort against that person, (ii) commits the same tort as intended but against a different person, or (iii) commits a different tort against a different person. In such cases, the intent to commit a certain tort against one person is transferred to the tort actually committed or to the person actually injured for the purposes of establishing a prima facie case.

Question 10

Limitations on Use of Transferred Intent

Answer 10

Transferred intent may be invoked only if both the tort intended and the tort that results are one of the following:

a) Assault;
b) Battery;
c) False imprisonment;
d) Trespass to land; or
e) Trespass to chattels.

Question 11

Prima Facie Case of Battery

Answer 11

To establish a prima facie case for battery the plaintiff must prove: harmful or offensive contact; to the plaintiff’s person; intent; and causation. Harmfulness and offensiveness are judged by a reasonable person standard. Contact can be direct or indirect. Plaintiff’s person includes anything connected to the plaintiff.

Question 12

Prima Facie Case for Assault

Answer 12

To establish a prima facie case for assault the plaintiff must prove: an act by the defendant creating a reasonable apprehension in the plaintiff of immediate harmful or offensive contact to the plaintiff’s person; intent by the defendant; and causation. Words alone are not sufficient.
For the defendant to be liable, the words must be coupled with conduct. Plaintiff must be apprehensive that she is about to become the victim of an immediate battery.

Question 13

Prima Facie Case for False Imprisonment

Answer 13

To establish a prima facie case for false imprisonment the plaintiff must prove; an act or omission by the defendant that confines or restrains the plaintiff to a bounded area; intent; and causation.

Sufficient acts of restraint include; physical barriers, physical force, threats of force, failure to release, and invalid use of legal authority. Insufficient acts of restraint include; moral pressure, and future threats. Plaintiff must know of the confinement or be harmed by it. For an area to be “bounded” freedom of movement must be limited in all directions and there must be no reasonable means of escape known to the plaintiff.

Question 14

Prima Facie Case for Intentional Infliction of Emotional Distress

Answer 14

To establish a prima facie case for intentional infliction of emotional distress the plaintiff must prove: an act by the defendant amounting to extreme and outrageous conduct; intent or recklessness; causation; and damages (severe emotional distress).
Extreme and outrageous conduct is conduct that transcends all bounds of decency. Less extreme conduct may become outrageous if it is continuous in nature; directed at a plaintiff with a known sensitivity; or is committed by a certain type of defendant such as a common carrier or innkeeper.

Question 15

Intentional Infliction of Emotional Distress

Causation in Bystander Cases

Answer 15

When the defendant intentionally causes physical harm to a third person and the plaintiff suffers severe emotional distress because of it, the plaintiff may recover by showing either the prima facie case elements of emotional distress or that:

(i) she was present when the injury occurred,
(ii) she is a close relative of the injured person, and
(iii) the defendant knew facts (i) and (ii).

Question 16

Prima Facie Case for Trespass to Land

Answer 16

To establish a prima facie case for trespass to land the plaintiff must prove: physical invasion of the plaintiff’s real property; intent; and causation. The invasion may be by a person or an object. Real property includes airspace and subterranean space for a reasonable distance.
Defendant need only intend to enter the land, intent to trespass is not required. Anyone in actual or constructive possession of the land may bring an action as plaintiff.

Question 17

Prima Facie Case for Trespass to Chattels

Answer 17

To establish a prima facie case for trespass to chattels the plaintiff must prove: an act by the defendant that interferes with plaintiff’s right of possession in a chattel; intent; causation; and damages.

The interference may be either damaging the chattel or depriving the plaintiff of his lawful right of possession of the chattel.

Question 18

Prima Facie Case for Conversion

Answer 18

To establish a prima facie case for conversion the plaintiff must prove: an act by the defendant that interferes with plaintiff’s right of possession in a chattel; the interference is so serious that it warrants requiring defendant to pay the chattel’s full value; intent; and causation.
Acts of conversion include theft, wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing a chattel. Plaintiff may recover damages (fair market value at the time of conversion) or possession (replevin).

Question 19

Consent as a Defense to an Intentional Tort (generally)

Answer 19

Plaintiff’s consent to defendant’s conduct is a defense, but the majority view is that one cannot consent to a criminal act. Arizona follows the minority view that consent to a criminal act is a valid defense in a civil action for an intentional tort.

Question 20

Express (Actual) Consent

Answer 20

Defendant is not liable if the plaintiff expressly consents to defendant’s conduct. Exceptions are:

(i) mistake will undo express consent if defendant knew of and took advantage of the mistake;
(ii) consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter; and
(iii) consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation.

Individuals without capacity are deemed incapable of consent, e.g., incompetents, drunken persons, and very young children.

Question 21

Implied Consent

Answer 21

Apparent consent is that which a reasonable person would infer from custom and usage or plaintiff’s conduct, e.g., normal contact inherent in body-contact sports, ordinary incidental contact, etc.
Consent implied by law arises when action is necessary to save a person’s life or some other important interest in person or property.
If defendant exceeds the scope of consent and does something substantially different, he may be held liable.

Question 22

Self-Defense

Answer 22

Self-Defense: When a person reasonably believes that he is being or is about to be attacked, he may use such force as is reasonably necessary to protect against injury.
• One need not attempt to escape, but the modern trend imposes a duty to retreat before using deadly force if this can be done safely, unless the actor is in her own home.
• Self-defense is generally not available to the initial aggressor.
• Self-defense may extend to third-party injuries. An actor may be liable to a third person if she deliberately injured him in trying to protect herself.
• A reasonable mistake as to the existence of danger is allowed.
• One may use only the force that appears to be reasonably necessary to prevent harm to the person.

Question 23

Defense of Others

Answer 23

• One may use force to defend another when the actor reasonably believes that the other person could have used force to defend himself.
• A reasonable mistake as to whether the other person is being attacked or has a right to defend himself is permitted.
• The defender may use as much force as he could have used in self-defense if the injury were threatened to him.

Question 24

Elements of the prima facie case for negligence:

Answer 24

To make a prima facie case for negligence the plaintiff must show: (i) A duty on the part of defendant to conform to a specific standard of conduct for protection of plaintiff against an unreasonable risk of injury; (ii) A breach of that duty by defendant; (iii) The breach is the actual and proximate cause of plaintiff’s injury; and (iv) Damages.
DUTY, BREACH, CAUSATION, DAMAGES

Question 25

To whom is a duty of care owed?

Answer 25

A duty of care is owed to all foreseeable plaintiffs. Under the majority rule a defendant is also liable to an unforeseeable plaintiff if that plaintiff can establish that she was located in the foreseeable zone of danger caused by the defendant’s negligence.
In Arizona, whether a duty exists is a matter of law for the court to decide. Hence, foreseeability, which is an issue of fact, is not a factor to be considered by courts when making a determination of duty. Gipson v. Casey, 214 Ariz. 141 (2007) (defendant who unlawfully gave prescription drugs to anther owed a duty to anyone injured by them.)

Question 26

Reasonable Person Standard of Care

Answer 26

The reasonable person standard is an objective standard measured against the average prudent person. A defendant’s mental deficiencies and inexperience are not taken into account. However, the “reasonable person” is considered to have the same physical characteristics, or physical disabilities, as defendant and will be held to the reasonable person with the same physical disabilities standard.

Question 27

Duty: Professional Standard of Conduct

Answer 27

A professional or someone with special occupational skills is required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities. Medical specialists will be held to a national standard of care. A doctor has an additional duty to disclose the risks of treatment to a patient so that patient is able to give informed consent.

Question 28

Standard of Care of a Child

Answer 28

Children are held to the standard of a child of like age, education, intelligence, and experience. This is a subjective test. A child under four is usually without the capacity to be negligent. Children engaged in adult activities may be required to conform to an “adult” standard of care.

Question 29

Standard of Care for Common Carriers and Innkeepers

Answer 29

Common carriers and innkeepers are held to a very high degree of care. They are liable for slight negligence. For the higher common carrier and innkeeper standards to apply, the plaintiff must be a passenger or a guest.

Question 30

Standard of Care in Emergency Situations

Answer 30

A defendant must act as a reasonable person would under the same emergency conditions. The emergency is not to be considered, however, if it is of defendant’s own making.

Question 31

Duty to Trespassers

Answer 31

No duty is owed to an undiscovered trespasser. As to discovered or anticipated trespassers, the landowner must; (i) warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm, and (ii) use reasonable care in the exercise of “active operations” on the property. (No duty is owed for natural conditions or less dangerous artificial conditions.) Easement and license holders owe a duty of reasonable care to trespassers.

Question 32

Attractive Nuisance Doctrine

Answer 32

Attractive Nuisance Doctrine: A landowner has a duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property. To establish the attractive nuisance doctrine, a plaintiff must show: (i) a dangerous condition on the land that the owner is or should be aware of, (ii) the owner knows or should know children frequent the vicinity of the condition, (iii) the condition is likely to cause injury, i.e., dangerous because of the child’s inability to appreciate the risk, and (iv) the expense of remedying the situation is slight compared with the magnitude of the risk. The child does not have to be attracted onto the land by the dangerous condition, nor is the attraction alone enough for liability.

Question 33

Duty Owed to Licensees

Answer 33

A licensee is one who enters on the land with the possessor’s permission for her own purpose or business, rather than for the possessor’s benefit. The possessor has a duty to (i) warn of dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee and that licensee is unlikely to discover, and (ii) exercise reasonable care in the conduct of “active operations” on the property. The possessor has no duty to inspect or repair. Social guests are considered licensees.

Question 34

Duty Owed to Invitees

Answer 34

Invitees enter land in response to an invitation by the landowner for a purpose connected with the business of the landowner or enter as members of the public for a purpose for which the land is held open to the public. The landowner or occupier owes the same duties owed to licensees plus a duty to make reasonable inspections to discover non-obvious dangerous conditions and, thereafter, make them safe. One will lose invitee status if she exceeds the scope of the invitation.

Question 35

Duty Owed to Users of Recreational Land

Answer 35

A landowner who permits the general public to use his land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition.

Question 36

When may a statute’s specific duty replace the more general common law duty of care?

Answer 36

A statute’s specific duty may replace the more general common law duty of care if: (i) the statute provides for a criminal penalty, (ii) the statute clearly defines the standard of conduct, (iii) plaintiff is within the protected class, and (iv) the statute was designed to prevent the type of harm suffered by plaintiff.

Question 37

What is the effect of violation or compliance with a statutory duty of care?

Answer 37

An unexcused statutory violation is negligence per se; it establishes the first two requirements in the prima facie case – a conclusive presumption of duty and breach of duty. In contrast, even though violation of the applicable statute may be negligence, compliance with the statute will not necessarily establish due care.

Question 38

When might a violation of a statutory standard of care be excused?

Answer 38

Violation of some statutes may be excused where compliance would cause more danger than violation or where compliance would be beyond defendant’s control

Question 39

What is the duty regarding negligent infliction of emotional distress?

Answer 39

The duty to avoid causing emotional distress to another is breached when defendant creates a foreseeable risk of physical injury to plaintiff, either by (i) causing a threat of physical impact that leads to emotional distress or (ii) directly causing severe emotional distress that by itself is likely to result in physical symptoms.

Question 40

What is the zone of danger requirement for negligent infliction of emotional distress?

Answer 40

If plaintiff’s distress is caused by threat of physical impact to her, most courts (and Arizona) require that plaintiff be within the “zone of danger” to recover for her emotional distress.

Question 41

What is the physical symptoms requirement of negligent infliction of emotional distress?

What are the two exceptions to the requirement of physical symptoms?

Answer 41

Plaintiff can recover damages only if defendant’s conduct caused some physical symptoms from the distress. A severe shock to the nervous system that causes physical symptoms is sufficient.

Two cases in which a physical injury is not a required element of negligent infliction of emotional distress, are: (i) an erroneous report of a relative’s death, and (ii) a mishandling of a relative’s corpse.

Question 42

Generally, one does not have a legal duty to act. What are the exceptions to this rule?

Answer 42

Assumption of Duty by Acting – One may assume a duty to act by acting to render aid. However, good Samaritan laws may apply.
Peril Due to Defendant’s Conduct – One has a duty to assist someone he has negligently or innocently placed in peril.
Special Relationship Between Parties – Special relationship between the parties may create a duty to act. Similarly, common carriers, innkeepers, shopkeepers, and others that gather the public for profit owe duties of reasonable care to aid or assist their patrons. In addition, places of public accommodation have a duty to prevent injury to guests by third parties.
Duty to Control Third Persons – An affirmative duty to control a third person, may be imposed, if one has the actual ability and authority to control a person’s actions, and knows or should know there person is likely to commit acts that would require exercise of this control

Question 43

Arizona’s Good Samaritan Statute

Answer 43

Arizona’s “Good Samaritan” statute provides that anyone rendering gratuitous emergency care at a public gathering or at the scene of an emergency is liable only for gross negligence.

Question 44

Breach of Duty

Answer 44

When a defendant’s conduct falls short of the level required by the applicable standard of care owed to the plaintiff, she has breached her duty

Question 45

What is required of a plaintiff using the doctrine of res ipsa loquitur? What is the effect of establishing res ipsa loquitur?

Answer 45

The doctrine of res ipsa loquitur requires plaintiff to show that (i) the accident causing the injury is a type that would not normally occur unless someone was negligent, and (ii) the negligence is attributable to defendant. This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant.
Where res ipsa loquitur is established, plaintiff has made a prima facie case and no directed verdict may be given for defendant.

Question 46

Causation

Answer 46

Once negligent conduct is shown ( a breach of the standard of care owed a foreseeable plaintiff), a plaintiff must show that the conduct was the cause of his injury. For liability to attach, plaintiff must show both actual cause and proximate cause.

Question 47

Actual Cause (Causation in Fact)

Answer 47

“But For” Test

Joint Causes (Substantial Factor Test)

Alternative Causes Approach

Question 48

“But For” Test

Answer 48

Act or omission is the cause in fact of an injury when the injury would not have occurred but for the act. This test applies where several acts (each insufficient to cause the injury alone) combine to cause the injury.

Question 49

Joint Causes (Substantial Factor Test)

Answer 49

Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, defendant’s conduct is the cause in fact if it was a substantial factor in causing the injury.

Question 50

Alternative Causes Approach

Answer 50

This test applies when there are two acts, only one of which causes injury, but it is not known which one. The burden of proof shifts to the negligent defendants, and each must show that his negligence is not the actual cause.

Question 51

Proximate Cause – Liability in Direct Cause Cases

Answer 51

The doctrine of proximate causation is a limitation of liability and deals with liability or non-liability for unforeseeable or unusual consequences of one’s acts. A defendant generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. In a direct cause case, where there is an uninterrupted chain of events from the negligent act to plaintiff’s injury, defendant is liable for all foreseeable harmful results, regardless of unusual manner of timing. Defendant is not liable for unforeseeable harmful results not within the risk created by defendant’s negligence. Most harmful results will be deemed foreseeable in direct cause cases.

Question 52

Proximate Cause – Liability in Indirect Cause Cases

Answer 52

In an indirect cause case, an affirmative intervening force (an act by a third person, an act of God) comes into motion after defendant’s negligent act and combines with it to cause a plaintiff’s injury.
Defendant is liable where his negligence caused a foreseeable harmful response or reaction from a dependent intervening force or created a foreseeable risk that an independent intervening force would harm plaintiff. Foreseeable dependent intervening forces: subsequent med. mal., negligence of rescuers, injuries caused by another “reacting” to defendant’s actions, subsequent diseases caused by a weakened condition, subsequent accident substantially caused by the original injury.

Question 53

Not Proximate Cause – Unforeseeable and Superseding Forces.

Answer 53

Intervening forces that produce unforeseeable results (results not within the increased risk created by defendant’s negligence) are generally deemed unforeseeable and superseding. Superseding forces break the causal connection between defendant’s initial negligent act and plaintiff’s ultimate injury, thus relieving defendant of liability.

Question 54

What is the defendant’s liability for unforeseeable extent or severity of harm (eggshell skull plaintiff rule)?

Answer 54

In all cases, defendant takes his plaintiff as he finds him and is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable.

Question 55

What is the measure of damages for negligence resulting in: personal injury; property damages; and, punitive damages?

Answer 55

Damages for Personal Injury – Plaintiff is to be compensated for all his damages (past, present, and prospective), both special and general.
Property Damage – The measure of damage is the reasonable cost of repair or, if the property is nearly destroyed, the fair market value at the time of the accident.
Punitive Damages – Plaintiff may recover punitive damages if defendant’s conduct is “wanton and willful,” reckless, or malicious.
In all cases, plaintiff has a duty to take reasonable steps to mitigate damages.

Question 56

Defenses to Negligence – Contributory Negligence

Answer 56

Contributory negligence is negligence on the part of the plaintiff that contributes to her injuries. The standard of care for contributory negligence is the same as for ordinary negligence. Hence, a rescuer will not be deemed contributorily negligent without taking into account the emergency situation. Also, plaintiff’s violation of an applicable statute may be used to establish his contributory negligence.
At common law contributory negligence completely barred plaintiff’s right to recover. This is now the minority rule.

Question 57

What is the last clear chance doctrine?

Answer 57

Last clear chance permits a plaintiff to recover despite her contributory negligence. Under this rule, the person with the last clear chance to avoid an accident and who fails to do so is liable for negligence.

Question 58

“Pure” Comparative Negligence

Answer 58

Arizona has adopted pure comparative negligence. A claimant’s damages are reduced in proportion to the relative degree of fault that is the proximate cause of injury or death. This includes assumption of risk and “fault” imputed by operation of law.
Note: In Arizona a jury may consider nonuse of a seatbelt or motorcycle helmet in determining damages when nonuse was unreasonable under the circumstances and enhanced the plaintiff’s injuries in an ascertainable amount.