Torts I

Question 1

Intent - Defined

Answer 1

The Restatement (2d) of Torts §8A defines intent as an actor’s desire to cause consequences of his act, or his belief that the consequences are substantially certain to result from it.

Question 2

Transferred-IntentDoctrine

Answer 2

The rule that if one person intends to harm a second person but instead unintentionally harms a third, the first person’s criminal or tortiousintenttoward the second applies to the third as well.

Question 3

Battery - Defined

Answer 3

Black’s Law Dictionary defines battery as the use of force against another, resulting in harmful or offensive contact.

Question 4

Battery - Harmful

Answer 4

The Restatement (2d) of Torts §15 defines harmful as any physical impairment of the condition of another’s body, or physical pain or illness

Question 5

Battery - Offensive

Answer 5

The Restatement (2d) of Torts §19 defines offensive contact as a bodily contact that offends a reasonable sense of personal dignity.

Question 6

Battery - Causation

Answer 6

The plaintiff has to show that the volitional act caused the harmful or offensive act. Because of the defendant’s act, that harmful or offensive contact occurred

Question 7

Battery - Damages

Answer 7

Actual damages not required to recover

Question 8

Assault - Defined

Answer 8

Blacks’ Law Dictionary defines assault as the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact.

Question 9

Assault - Elements

Answer 9

An actor is subject to liability to another for assault if:

1. Volitional act
2. Intent to cause a harmful or offensive contact with the person of the other, or an apprehension of such imminent harmful or offensive contact
3. The apprehension of contact thereby occurs
4. Causation - the volitional act either directly or indirectly caused the apprehension of a harmful or offensive contact
5. Damages - actual damages are not required

Question 10

Battery - Elements

Answer 10

An actor is subject to liability to another for battery if:

1. Volitional act
2. Intent to cause a harmful or offensive contact
3. The harmful or offensive contact occurred
4. Causation - the volitional act either directly or indirectly caused the harmful or offensive contact
5. Damages - actual damage occurred

Question 11

Assault - Words Alone

Answer 11

Words alone do not make the actor liable for assault unless, together with the acts or circumstances, they put the other in reasonable apprehension of an imminent harmful or offensive contact with the person.

Question 12

Assault - Ability to Inflict

Answer 12

In order to make an actor liable for assault, it is not necessary that he have or that he believe that he has the ability to inflict the harmful or offensive contact which his act apparently threatens

Question 13

Battery - Exceptions

Answer 13

1. Unconscious or instinctive acts are not volitional (blinking), but holding a arm out to brace a fall is volitional.
2. The victim does not need to know that the harmful or offensive act occurred
3. Words or context can be very important in determining what is offensive.

Question 14

Assault - Apprehension

Answer 14

Apprehension results when the other believes that the act may result in imminent contact unless prevented from so resulting by self-defensive action, his flight, or an intervention of some outside force.

Question 15

Assault - Imminent

Answer 15

Imminent contact is held to be a clear and present act. The threat of a future act at some other time and/or place does not make the actor liable for an assault.

Question 16

Assault - Awareness

Answer 16

An actor is not liable for assault if the intended person does not become aware of the attempt before it is terminated.

Question 17

Assault - Existence of Threat

Answer 17

It doesn’t matter if the threat never existed, as long as the victim had a reasonable fear that the threat existed, and the actor intended the apprehension.

Question 18

False Imprisonment - Defined

Answer 18

Black’s Law Dictionary defines false imprisonment as a restraint of a person in a bounded area without justification or consent.

Question 19

False Imprisonment - Elements

Answer 19

1. A volitional act, or language used by the defendant
2. Defendant intends to confine the victim, or is substantially certain that confinement will occur.
3. The victim must be restricted to a limited area without knowledge of reasonable means of escape, and must be contemporaneously aware of the confinement, or otherwise harmed by it.
4. Causation - Confinement must have been caused by the defendant’s intentional act or some force set in motion thereby.
5. Damages - Nominal, compensatory, and punitive damages all are available. Injuries attempting to escape

Question 20

False Imprisonment - Forms of Confinement

Answer 20

1. Physical force exercised against the victim or a member of the victim’s family
2. Threats of immediate harm to the victim, the victim’s property, or the victim’s family
3. Actual or apparent physical barriers to escape
4. Assertion of legal authority and victim’s submission thereto

Question 21

False Imprisonment - Exceptions

Answer 21

1. To make the actor liable for false imprisonment, the other’s confinement within the boundaries fixed by the actor must be complete.
2. Actual or apparent physical barriers to escape
   a. May be in a vehicle, a city, or a state, but not a country
   (too large an area)
   b. The confinement is complete even if there is a
   reasonable means of escape, but the victim is
   unaware of it.
3. The actor does not become liable for false imprisonment by intentionally preventing another from going in a particular direction in which he has a right or privilege to go (exclusion is not false imprisonment)

Question 22

False Imprisonment - Defenses

Answer 22

Merchant Privilege - Acceptable to detain a person in a reasonable manner for a reasonable amount of time, if reasonable belief that person stole property

Question 23

Intentional Infliction of Emotional Distress - Defined

Answer 23

Black’s Law Dictionary defines intentional infliction of emotional distress as intentionally or recklessly causing another person severe emotional distress through one’s extreme or outrageous acts.

Question 24

IIED - Elements

Answer 24

1. A volitional act by the defendant that is extreme and outrageous.
2. The defendant’s conduct is intentional and reckless
3. There must be a causal connection between the wrongful conduct and the emotional distress
4. The emotional distress must be severe
5. Damages - Actual damages are required. It must be proven that the emotional distress endured was severe.

Question 25

IIED - Exceptions

Answer 25

1. Words alone may suffice, but simple insults are not enough.
2. Common carriers and public utilities are held to a stricter standard.
3. Defendant’s liability also includes emotional distress of members of the intended victim’s family if their presence was known to the defendant.
4. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community (high threshold).

Question 26

IIED - Defenses

Answer 26

1. Gross insults may be protected by the 1st Amendment
2. Religious activity may be defendable
3. Good faith and reasonable mistake are NOT defenses

Question 27

Trespass to Land - Defined

Answer 27

The Restatement (2d) of Torts §158 states that one is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally:

1. enters land in the possession of the other, or causes a thing or a third person to do so, or
2. remains on the land, or
3. fails to remove from the land a thing which he is under a duty to remove.

Question 28

Trespass to Land - Elements

Answer 28

1. A volitional act by the defendant
2. Intent to intrude on the land or know with substantial certainty that his actions will cause entry, but he need not know the land belongs to another.
3. Entry
   a. Personal entry, or causing other person, or an object to enter.
   b. Failure to leave land or remove object after permission to remain has expired
   d. The fact that the actor’s conduct was socially useful does not affect liability
4. Plaintiff in possession or entitled to immediate possession
5. Causation - Must be caused by the defendant’s intentional act or some force set in motion thereby.
   a. Unforeseeable harm – Trespasser liable for harm to person or property caused to the owner even if the harm was not foreseeable.
6. Damages - Trespass to land is complete upon actor’s intentional intrusion, and actor will be liable for at least nominal damages for harm to victim’s right to exclusive possession.

Question 29

Trespass to Chattels - Defined

Answer 29

Black’s Law Dictionary defines trespass to chattels as the act of committing, without lawful justification, any act of direct physical interference with a chattel possessed by another.

Question 30

Trespass to Chattels - Elements

Answer 30

1. A volitional act by the defendant
2. Actor intended to deal with the chattel in the manner in which he did.
3. Causation - The invasion must have been caused by defendant’s intentional act or a force set in motion by the defendant.
   a. Dispossession - theft or destruction of the chattel, or even a barring of the rightful owner’s access.
   b. Intermeddling - conduct that serves to directly damage plaintiff’s chattel (throwing a stone at another’s car, beating another’s animals)
4. Damages - generally nominal damages are not awarded in the absence of any actual damages. However, the loss of possession itself can be deemed an actual harm.

Question 31

Conversion - Defined

Answer 31

The Restatement (2d) of Torts §222A states that conversion is an intentional exercise of dominion or control over a chattel which 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 32

Conversion - Elements

Answer 32

1. A volitional act by the defendant
2. The defendant intended to interfere with the chattel
3. Substantial invasion of chattel interest:
   a. Substantial disposition for a period of time
   b. Destruction or material alteration
4. Plaintiff is in possession or entitled to immediate possession
5. Causation - The invasion must have been caused by defendant’s intentional act or a force set in motion by the defendant.

Question 33

Consent - Defined

Answer 33

Black’s Law Dictionary defines consent as agreement, approval, or permission as to some act or purpose.

Question 34

Consent - Types

Answer 34

1. Actual consent - Consent that is clearly and unmistakably stated.
2. Apparent consent - What the reasonable person would infer from custom or from the plaintiff’s conduct.
3. Consent implied by law - If necessary to save a life or other important interest, and:
   a. Plaintiff is unconscious or otherwise unable to consider the matter
   b. An immediate decision is necessary
   c. There is no reason to believe that plaintiff would withhold consent if able
   d. A reasonable person in plaintiff’s position would consent

Question 35

Consent - Exceeded

Answer 35

1. Acts in excess of consent
2. Consent obtained via fraud
3. Consent obtained via duress
4. Consent is ineffective if due to a mistake caused by or known to the defendant.
   a. Mistake of law
   b. Mistake of fact - Plaintiff fails to understand the nature or consequences of the invasion of their person or property
   1. If a patient did not give consent to medical treatment, the doctor may be liable for battery.
5. Incapacity to consent

Question 36

Self-Defense - Non-Deadly Force

Answer 36

1. Non-deadly force may be used if the defendant reasonably believed that the plaintiff was about to inflict imminent bodily harm, and the force used was reasonably necessary to prevent the harm.
2. Defendant is under no duty to retreat unless defendant recognizes that plaintiff acted unintentionally or had mistaken defendant’s identity.

Question 37

Self-Defense - Deadly Force

Answer 37

1. Deadly force may be used if defendant reasonably believed plaintiff was about to inflict death or serious bodily harm.
2. Under the majority view, there is no duty to retreat.
3. The minority view holds that there is a duty to retreat if it is safe to do so, unless:
   a. Defendant is in their own home
   b. Retreating would endanger defendant or a third party, or
   c. Defendant is attempting a valid arrest

Question 38

Self-Defense - Threats of Force

Answer 38

Defendant is privileged to threaten greater force than they could actually use if such threats would do no more than cause apprehension.

Question 39

Self-Defense - Limitations

Answer 39

The right to self defense is limited where:

1. Defendant knows the danger is terminated;
2. Defendant uses excessive force—may give plaintiff the right to use force in self-defense;
3. Plaintiff’s conduct is privileged; or
4. Defendant intentionally injures a third person

Question 40

Self-Defense - Reasonable person

Answer 40

This is tested with the “reasonable person” standard

Question 41

Self-Defense - Third Persons

Answer 41

A person may be privileged to use force to protect another only to the extent the person defended would have been privileged to use force under the circumstances. The modern view protects the actor’s reasonable mistake of fact.

Question 42

Defense of Land or Chattels

Answer 42

Defendant may not use deadly force to defend land or chattels. He may use non-deadly force if:

1. Intrusion by the plaintiff is not privileged
2. Defendant reasonably believes force is necessary to prevent or terminate the intrusion
3. Defendant, prior to the use of force, makes a demand that the intruder desist or leave (unless the demand appears futile).

Question 43

Defense of Chattels - Force

Answer 43

Defendant is privileged to use reasonable non-deadly force to recapture chattels of which he was tortiously dispossessed under the following conditions:

1. Defendant is in fact entitled to immediate possession of the chattel
2. Demand for return has been made by defendant and ignored or the demand appears futile
3. Defendant is in “hot pursuit”

Question 44

Defense of Chattels - Exceptions

Answer 44

1. In cases of non-tortious dispossession, there is no privilege to use force.
   2 Shopkeeper’s Privilege - in most states, a shopkeeper is privileged to detain temporarily for investigation if:
   a. there are reasonable grounds to suspect the person detained;
   b. detention is on the store premises or in the immediate vicinity;
   c. only reasonable, non-deadly force is used; and
   d. the detention is for only as long as is needed to conduct a reasonable investigation.

Question 45

Negligence - Defined

Answer 45

Restatement (2d) of Torts §282 - Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. Negligence may consist of an act, or an omission to act when there is a duty to do so.

Question 46

Negligence - Reasonable Man

Answer 46

Restatement (2d) of Torts §283 - 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 47

Negligence - Child

Answer 47

Restatement (2d) of Torts §283A - If the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable person of like age, intelligence, and experience under the circumstances.

Question 48

Negligence - Mental Deficiency

Answer 48

Restatement (2d) of Torts §283B - Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances.

Question 49

Negligence - Disabled

Answer 49

Restatement (2d) of Torts §283C - If the actor is ill or otherwise physically disabled, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like disability.

Question 50

Negligence - Elements

Answer 50

1. An act or questionable omission by the defendant
2. Defendant had a duty of due care
3. Defendant breached the duty

Question 51

Negligence - Broad (Andrews) View

Answer 51

Defendant’s duty of care is owed to anyone in the world injured as a result of defendant’s breach of duty, leaving the foreseeability of a particular plaintiff a matter to be determined in the context of proximate cause.

Question 52

Negligence - Narrow (Cardozo) View

Answer 52

There is a duty of care owed only to a foreseeable plaintiff, or class of persons in the zone of danger.

Question 53

Negligence - Exceptions (Child, Special Knowledge, Rescue)

Answer 53

1. If the child is engaged in a dangerous adult activity, they may be held to the adult standard.
2. Special knowledge and skills - Those engaged in a profession or trade are held to the standard of care exercised by similar professions in the same or similar communities.
3. The duty of care extends to persons injured while making an attempt to rescue the imperiled person.

Question 54

Res Ipsa Loquitur

Answer 54

1. Accident must be of a type that normally does not occur absent negligence
2. The negligence is attributable to the defendant (exclusive control)

Question 55

Negligence Per Se

Answer 55

1. Breach of a statute establishing negligence
   a. Statutory duty is clear
   b. Statutory purpose was to protect a class of persons of which the plaintiff is a member from the type of injury suffered
   c. Violation was unexcused

Question 56

Actual Cause

Answer 56

1. The cause and effect relationship between the defendant’s tortious conduct and the plaintiff’s injury or loss.
2. Plaintiff would not have been injured but for defendant’s negligent conduct.

Question 57

Actual Cause - Concurrent Liability

Answer 57

Where separate negligent acts of D and X concur and P would not have been injured but for the concurrence, both D and X are actual causes.

Question 58

Actual Cause - Substantial Factor

Answer 58

If either one of two acts was sufficient to cause the injury, both actors are liable if each person’s conduct was a substantial factor.

Question 59

Actual Cause - Alternative Liability

Answer 59

Where it is not clear which of several negligent defendants caused the plaintiff’s injury, some court shift the burden to each defendant to prove he was not the cause.

Question 60

Market Share Liability

Answer 60

Where a specific manufacturer of the DES drug cannot be identified some courts allow plaintiff to recover from all manufacturers based on their market share. Applies to DES cases only.

Question 61

Proximate Cause

Answer 61

Concerns a determination of whether legal liability should be imposed where cause in fact has been established. Proximate cause cuts off liability even though there is cause in fact.

Question 62

Proximate Cause - Tests

Answer 62

According to the text, there are two general tests for proximate cause:

1. Foreseeability Test - Proximate cause exists if the type, extent, and manner of injury to the particular plaintiff were the foreseeable result of defendant’s negligent conduct.
2. Directness/remoteness Test - Proximate cause exists for all harm that is a direct result of defendant’s negligent conduct as long as it is not too remote

Question 63

Proximate Cause - Intervening Force

Answer 63

1. The Restatement (2d) of Torts §441 states that an intervening force is one which actively operates in producing harm to another after the actor’s negligent act or omission has been committed.
2. The causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a foreseeable consequence of the situation created by the defendant’s negligence.

Question 64

Proximate Cause - Superseding Cause

Answer 64

1. The Restatement (2d) of Torts §440 states that a superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.
2. If the intervening act is not foreseeable in the normal course of events, or far removed from the defendant’s conduct, it may well be a superseding act which breaks the causal nexus.

Question 65

Proximate Cause - Foreseeable Forces

Answer 65

1. Negligent medical treatment in response to defendant’s injury to plaintiff
2. Infliction or aggravation of an injury by a rescuer
3. Infliction or aggravation of injuries through escape efforts
4. Negligent acts which are exacerbated by “Acts of God”

Question 66

Negligence - Damages

Answer 66

Actual damages are required. Types of damages recoverable:

1. “Special” Damages - Past, present, and future economic losses.
2. “General” Damages - Damages inherent to the injury itself—e.g., past, present, and future pain and suffering, disfigurement, disability, etc.
3. Punitive Damages - Not recoverable for negligence (possible exception for drunk driving).

Question 67

Standard of Care - Doctors

Answer 67

The modern trend has been to hold doctors to the standard of doctors in “similar” communities. National standards may be imposed for nationally certified medical specialists.

Question 68

Informed Consent - Doctors

Answer 68

Doctors have a duty to disclose relevant information about benefits and risks, alternatives, etc., to a patient.

Question 69

Standard of Disclosure - Doctors

Answer 69

Courts are split between those that require only the level of disclosure customary in the medical profession (Reasonable Physician Standard) and those that require disclosure of what the doctor should reasonably recognize would be material to the patient’s decision (Reasonable Patient Standard).

Question 70

Informed Consent Exceptions - Doctors

Answer 70

1. Emergencies - patient unconscious, unable to comprehend, etc.
2. Therapeutic privilege - patient is so distraught or unstable that the physician reasonably concludes that full disclosure would be detrimental to the patient’s well-being.
3. Inexperience - an inexperienced physician does not have a duty to inform his patient that he has never before performed the procedure he is recommending.

Question 71

Rescue Doctrine

Answer 71

The rescue doctrine allows an injured rescuer to sue the party which caused the danger requiring the rescue in the first place. The heart of this doctrine is the notion that “danger invites rescue.” This doctrine serves two functions:

1. It informs a tortfeasor that it is foreseeable a rescuer will come to the aid of the person imperiled by the tortfeasor’s actions, and therefore, the tortfeasor owes the rescuer a duty similar to the duty he owes the person he imperils.
2. The rescue doctrine negates the presumption that the rescuer assumed the risk of injury when he knowingly undertook the dangerous rescue, so long as he does not act rashly or recklessly.

Question 72

Rescue Doctrine - Rescuer Status

Answer 72

To achieve rescuer status, one must demonstrate:

1. The defendant was negligent to the person rescued and such negligence caused the peril or appearance of peril to the person rescued;
2. The peril or appearance of peril was imminent;
3. A reasonably prudent person would have concluded such peril or appearance of peril existed; and
4. The rescuer acted with reasonable care in effectuating the rescue

Question 73

Conversion - Return of Goods

Answer 73

When a converter offers to return the converted goods and the owner accepts, the return does not bar the action for conversion, but it must be taken into account to reduce the damages recovered.

1. If the plaintiff refuses to accept the chattel back:
   i. The old rule was that the defendant could not force the goods back upon him in reduction of the damages.ii. More recently, courts have held that when the conversion is an innocent one committed under an honest mistake, the court may require the plaintiff to take back the goods and credit the defendant with their value in any case in which the goods are undamaged there has been no change in the plaintiff’s position.

Question 74

License

Answer 74

Permission has been granted by the owner for temporary use of land granted to someone other than the landowner. Doesn’t need to be in writing. The license is breeched if you exceed the time, purpose, or place granted by the landowner.

Question 75

Standard of Care - Professional

Answer 75

The standard of care for a party is as a member of their profession in good standing, and must act as an ordinary reasonable and prudent professional would act.

Question 76

Comparative Negligence

Answer 76

Comparative negligence has replaced contributory negligence.

1. Defendant responds to the plaintiff and claims that plaintiff was negligent too.
2. Jury needs to decide what percentage the plaintiff was negligent and what percentage the defendant was negligent.
3. Damages awarded to the plaintiff will be reduced by the percentage amount that the plaintiff was determined to be negligent.

Question 77

Suicide - Superseding

Answer 77

Suicide is usually a superseding event. Mention irresistible impulse.

Question 78

Daubert Standard

Answer 78

1. The court must determine whether the experts’ testimony reflects “scientific knowledge”, whether their findings are “derived by the scientific method”, and whether their work product amounts to “good science”.
2. The court must ensure that the proposed expert testimony is “relevant to the task at hand”, i.e. that it logically advances a material aspect of the proposing party’s case. (aka the “fit” requirement)

Factors that federal judges can consider in determining whether to admit expert scientific testimony:

1. Whether the theory or technique employed by the expert is generally accepted in the scientific community
2. Whether it’s been subjected to peer review and publication
3. Whether it can be and has been tested
4. Whether the known or potential rate of error is acceptable