Torts I

Question 1

Civil Law Systems:

Answer 1

eveloped in Western Europe and later extended to other parts of the world including Japan. Takes law from roman Law where law is expressed in general principles rather than particular rules. Writings of major legal scholars are a primary source of law and judicial decisions are considered nonbinding.

Question 2

Trespass

Answer 2

all forcible, direct and immediate injuries whether to person or property

Question 3

Case

Answer 3

wrongful conduct that was not forcible or direct – but rather indirect

Question 4

Facets of Case claims

Answer 4

1. Required proof of negligence or wrongful intent.
2. Damages were required to be shown.
3. Case applies to tangible injuries to person or property. Case is a civil claim not criminal.

Question 5

log thrown in the road. Case claim or trespass?

Answer 5

Immediate damage is Trespass and later damage is Case

Question 6

Scott v. Shepherd

Answer 6

A free agent is not someone who acts in necessity from terror. In other words, acts made in terror are not actionable

Question 7

Hutchins v. Maughan

Answer 7

For trespass to lie, the P’s injuries must be directly occasioned by D’s actions and not consequential of D’s actions

Question 8

Leame v. Bray

Answer 8

For trespass to lie, P must be injured as an immediate result of a force originally set in motion by D

Question 9

If the plaintiff has an original trespass claim, then consequential damages may be included in that claim. True or false?

Answer 9

True. the plaintiff may recover damages from consequences of the original action.

Question 10

Weaver v. Ward

Answer 10

No man excused from trespass unless injuries caused completely and utterly w/o D’s will; D must show that injury was inevitable and that D not negligent

Question 11

Brown v. Kendall

Answer 11

Court relies on this when doing a lawful act the burden of proof of undue care was on the plaintiff.

Question 12

Transferred Intent

Answer 12

intent to batter X results in a battery to Y. This works unless X and Y are so different that the intent cannot be presumed

Question 13

Wallace v. Rosen

Answer 13

No, the civil action of battery requires intent not negligence. The required mental state must be intentional. In this case, even if the action may have been considered rude in normal situations, the situation in question is far from “normal”

Question 14

ransferred Intent between two dissimilar creatures?

Answer 14

No it cannot transfer. Ex: Shoot at a bear – Hit a human. No liability because the defendant only intends to hit a bear not a person. If a hunter were liable, it would expose a non-negligent hunter to liability.

Question 15

Battery requires:

Answer 15

an invasion of the person. Usually touching.

Question 16

ASSAULT

Answer 16

ntentionally causing an apprehension of immediate or eminent harmful or offensive contact. Words may give an action a hostile color while words may also negate an action. (If you weren’t old, I would hit you.)

Question 17

Elements of assault

Answer 17

1. Intent: Intent to produce the result (apprehension of harmful or offensive contact (Purpose or Knowledge)
2. Act: An immediate or eminent act that causes the result
3. Result:Apprehension (NOT fear- P doesn’t have to be afraid, just “contemplation”(Apprehension)) of a battery (harmful or offensive contact)

Question 18

Does injury necessary for assault claim?

Answer 18

action does not require an injury to be an assault

Question 19

There must be an overt act in furtherance of the assault. T or F?

Answer 19

True. Intent to immediate battery must be shown

Question 20

FALSE IMPRISONMENT* - FALSE ARREST

Answer 20

Being kept physically or by threat of violence within the bounds of a certain area without knowledge of means to escape. Can be as large as a city

Question 21

compelled restraint voluntarily. (Force to self, other or property - hard to support property, must be valuable.)

Answer 21

must be physical in nature – this can result where P understood that physical force would be used if P didn’t submit

Question 22

What does not constitute false imprisonment

Answer 22

mental, economic, or emotional pressure does NOT create false imprisonment. Threat of future harm is not sufficient.

Question 23

Must be intent to confine – t or f?

Answer 23

True. must be desire or belief to substantial certainty

Question 24

INTENTIONAL INFILICTION OF EMOTIONAL DISTRESS:

Answer 24

D’s act must be extreme and outrageous; words alone may suffice, but simple insults are not actionable. D must intend severe Emotional Distress; reckless conduct suffices. Distress must be more than reasonable person could be expected to endure

Question 25

Reckless

Answer 25

Acting with consciousness of high risk of harm – this definition is not conclusive. An actor may not be conscious of risk, but may be seen as reckless –Intoxication

Question 26

Extreme and Outrageous

Answer 26

beyond all possible bounds of decency; atrocious and utterly intolerable in a civilized community

Question 27

TRESPASS TO LAND

Answer 27

Invasion that interferes with the right of exclusive possession. 2) Must be a direct result of some act committed by the D

Question 28

elements of trespass to land

Answer 28

Must be volitional (made by choice). Must be intent to intrude on land; mistake is no defense

Question 29

Restatements 159

Answer 29

Air travel is a trespass when 1) enters into immediate reaches of the air space next to the land, and interferes substantially with others use and enjoyment of land

Question 30

1929 Edwards v. Sims

Answer 30

A cave that extends into another’s property is part of that person’s property.

Question 31

Boehringer v. Montalto 1931

Answer 31

Sewer line 150 feet below is not part of the property. Because beyond reasonable use by the owner.

Question 32

Placing an object can be trespass.. t or f?

Answer 32

True

Question 33

Private Nuisance

Answer 33

Person in possession of land can maintain action for unreasonable interference (through noise, fumes, vibrations, etc) with the use and enjoyment of land

Question 34

Mere licence

Answer 34

Person staying in motel room cannot sue a trespasser to that room, because even though person had possession, the motel owner still has control over the premises – the guest is a mere licensee

Question 35

TRESPASS TO CHATTELS

Answer 35

Intentional interference with the right of possession of personal property. The defendant’s act must intentionally damage the chattel, deprive the possessor of its use for a substantial period, or totally disposes the chattel from the victim. Said to be the little brother of a conversion

Question 36

elements of trespass to chattel

Answer 36

Act: D’s act must be volitional movement resulting in dispossession of or harm to chattel

2. Intent: D must have intended to deal with the chattel in manner in which he did a.Mistake is not defense
3. Result: Invasion of chattel interest; there must be some damage (either a.Dispossession: Asserting proprietary interest in chattel over interest of rightful owner (theft or destruction of chattel)b.Intermeddling: Lesser interference with chattel that does not challenge rightful owner’s interest in chattel (throwing rock at car)
4. P must have actual possession
5. Causation – Invasion must be legally caused by D’s act or force set in motion thereby

Question 37

CONVERSION

Answer 37

Intentional exercising dominion and control over another’s chattel that 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. The difference between trespass to chattel and conversion is that in trespass the P retains “general right of dominion”, where as conversion the act is so serious that it acts as a forced sale

Question 38

87 of 99Examples of conversions

Answer 38

b. Acquiring possession (stealing chattel)
c. Damaging or altering chattel
d. Using chattel (unauthorized use by bailee)
e. Receiving chattel (buying or receiving stolen property)
f. Disposing of chattel (selling or disposing of stolen prop)
g. Mis-delivering chattel
h. Refusing to surrender chattel

Question 39

CONSENT

Answer 39

Whether consent has in fact been given depends on the P’s behavior; whether the P has given express consent (actual communication of willingness to submit to D’s conduct) or apparent consent (consent implied from the P’s conduct in light of the circumstances –depends on reasonableness of circumstances and how reasonable person would interpret P’s actions)

Question 40

When consent is ineffective

Answer 40

a. When D’s acts are in excess of consent given (Hackbart case – factual limits of consent)
b. When consent was induced or acquired through mistake when the D deliberately deceived P to get consent
c. When P is legally incompetent or is a minor
d. When P gives consent that was induced by duress (force or apprehension of force)

Question 41

DEFENSE OF PERSONS

Answer 41

This privilege rests upon the necessity of permitting a person who is attacked to take reasonable steps to prevent harm to himself or herself, where ther is no time to resort to the law.

Question 42

excessive force

Answer 42

defense of persons (self defense) does not cover this.

Question 43

retaliation

Answer 43

Where threat of battery is no longer imminent, privilege of self defense terminates and retaliator can be liable for battery

Question 44

reasonable belief for self defense

Answer 44

D needs only have a reasonable belief that the force is necessary for protection even if there is no necessity. Mistake does not make someone liable as long as the mistake is reasonable

Question 45

reasonable force

Answer 45

i. To justify the use of a deadly weapon D must have reasonableapprehension of loss of life.
ii. D has the burden of proof that the force was reasonable. – if D is a police officer, some courts shift the burden of proof to the P

Question 46

Retreat

Answer 46

i. Common law rule was that D must retreat rather than kill or seriously wound the assailant.
ii. The restatements confirms this rule – except for when you are in your own home.
iii. D may stand his ground and use force short of that which will cause serious injury.
iv. Majority Opinion: Insists on a higher importance of the dignity and honor of individual. D may stand his ground and use deadly force. This question no longer has the importance that it once did because it is nearly impossible to flee from an assailant with a gun.

Question 47

Injury of a Third Party

Answer 47

While intent transfers, so does the defense of self defense and therefore D is not liable for accidental injuries to third parties

Question 48

DEFENSE AND RECOVERY OF PROPERTY

Answer 48

The privilege to defend the possession of property rests upon the same considerations of policy as that of self defense. The interest in peaceful possession and enjoyment justifies protection by self help, in situations where there is usually no time to resort to the law. The force must be reasonable, necessary and not excessive.

Question 49

necessity

Answer 49

D who acts to prevent a threatened injury from some force of nature, or some other independent cause not connected with the P, is said to be acting under necessity

Question 50

Public necessity

Answer 50

Benefits the community – wide segment of the community

Question 51

Private necessity

Answer 51

Private necessity protects a person from liability for trespass, but does not protect from damages. It also may make it wrong for a land owner to interfere with the person subject to necessity. For example if the land removed the ties of the boat and damage was done to the boat then the land owner would be liable. A person seeks shelter because he is ill and it is cold out. If the property owner kicks him out at night and he is injured, there is liability. If D’s property is causing the harm – it might better be described as defense of property rather than if an act of God is causing the harm

Question 52

AUTHORITY OF LAW AND DISCIPLINE

Answer 52

Privilege to interfere with property or person under a legal authority

Question 53

Private citizen who aids police officer in making false arrest can be liable for false imprisonment. True or false?

Answer 53

True. However, if police officer asks for assistance, private citizen not liable unless he knows the arrest is unlawful

Question 54

Arrests under warrant

Answer 54

i. Officer only liable for arrests under warrant if he acts improperly
ii. Officer is not liable for arrest under a warrant if the warrant is “fair on its face”

Question 55

NEGLIGENCE

Answer 55

Negligence formerly described to define a breach of a legal obligation, or to designate a mental element, usually one of inadvertence or inattention or indifference, entering into the commission of other torts.

Question 56

Elements of Negligence

Answer 56

1) Duty of Care: 2) Failure to act/standard of conduct (care):
3) Cause of Damage

Question 57

Duty of Care:

Answer 57

A duty to use reasonable care. Obligation by law that requiresthe actor to conform to a certain standard of conduct, for the protection of others. Forseeability plays a major role in determining duty.

Question 58

Failure to act/standard of conduct (care):

Answer 58

Failure to conform to the required standard is commonly called a breach of duty. If the person is only guilty of breach, but was under no duty to the plaintiff then there is no liability.

Question 59

Cause of Damage:

Answer 59

Actual loss or damage must result to the interest of another. Because negligence developed from action on a case, it requires proof of damage. Damage does not often extend to economic damages to businesses etc. Crashing a boat to a bridge. There could be economic damages by preventing people from going to work.

Question 60

Cause in fact –

Answer 60

deals with cause and effect relationship between the defendant’s tortuous conduct and the P;s injury or loss. Thus it deals with but for causation.

Question 61

Proximate Cause –

Answer 61

concerns a determination fo whether legal liability should be imposed where cause in fact has been established. It is a policy decision made by the legislatyre of the courts to deny liability for otherwise actionable conduct based onthe considerations of logic, common sense, policy, precedent and our mor or less inadequately ecpressed ideas of what justicedemands or of what is administratively possible and convenient.

Question 62

Standard of Care*

Answer 62

Burden

Question 63

REASONABLE CARE

Answer 63

Anticipation – Exercise pf reasonable care – If there is some probability of harm sufficiently serious that ordinary men would take precautions to avoid it, then failure to do so is negligence. Test is not of the balance of probabilities, but of the existence of some probability of sufficent moment to induce to avoid it on the part of a reasonable mind. – It can be the anticipation of danger that in all probability won’t come about. Not just forseeability, but must have some substantial possibility.

Question 64

Cause in fact

Answer 64

If party had not been negligent then injury and damage would not have occurred. (Either the injury entirely, or part of the injury.)

Question 65

Legal Cause –

Answer 65

Perhaps more than duty. Attempt to find adequate conduct – reason it is treated as negligent and the damage the P suffered.

Question 66

Bolton v. Stone

Answer 66

P was playing cricket and a hit landed on D who was past the road in her garden. The possibility that she would be hit or even that a person on the road would be hit was foreseeable, but so small that the D was not held liable

Question 67

Physical Disability

Answer 67

Reasonable person standard is altered to be a reasonable person with the same physical disability in the circumstances

Question 68

Mental Disability

Answer 68

Most courts do not make an adjustment for mental illness. D is held to the reasonable person standard. Perhaps this is because it is harder to prove. Another reason for this is the custodians for incompetents will be encouraged to watch them more closely.

Question 69

Intoxication and the reasonable person standard

Answer 69

No change from the norm. the behavior of getting drunk and being in a situation that might possibly cause harm to others is in itself negligent.– A reasonable person would not get drunk in a situation that might cause harm to others.

Question 70

he standard of the unreasonable unconscious person

Answer 70

nothing, but if someone is aware that the possibility exist, they might be negligent

Question 71

Why apply a standard of a child of like age, intelligence, and experience

Answer 71

It removes the contributory negligent factor when the child is a P. If the child is a D he is usually acting in an adult activity.

Question 72

Adult standard of care for children is adopted in…

Answer 72

1. Dangerous activity and
2. Types of activity usually engaged in by adults.
   i. An activity engaged in by adults or near adults
   ii. Provides danger if engaged in without the typical standard of care.

Question 73

Exception to adult standard for children

Answer 73

The Restatement holds that the special requirement should not be applied when children are engaged in conduct normally engaged in by adults – driving car, motorcycle, scooter, golf, deer hunting, building a fire.

Question 74

The court holds different standards for care for men and women. T or F?

Answer 74

False

Question 75

Degrees of Negligence

Answer 75

negligent and grossly negligent. its a rather silly concept

Question 76

Degrees of care

Answer 76

Vary based on the risk involved. Thus those who deal with things known to be dangerous are held to a higher standard of care.

Question 77

Professional Liability

Answer 77

Higher care. Negligence liability for failing to meet standard of care can be extended in some cases to a third party

Question 78

In informed consent cases, liability is imposed even when the physician was not negligent in performing the operation. T or F?

Answer 78

True

Question 79

Statues and care

Answer 79

Statute takes the reasonable man out of the equation, and does not consider the “like circumstances aspect

Question 80

Rest 2nd 288A

Answer 80

Allows the following excuses to negligence per se:

i. Violation is reasonable because of actor’s incapacity
ii. Actor neither knows nor should know of the occasion for compliance
iii. Actor is unable after reasonable diligence or care to comply
iv. Actor is confronted by an emergency not due to his own misconduct
v. Compliance would involve greater risk of harm to the actor or to others

Question 81

Distinction

Answer 81

D can have an excuse to negligence per se if he is doesn’t know or have reason to know of the facts; ignorance of the law, however, is not an excuse

Question 82

circumstantial evidence–

Answer 82

evidence of a fact from which the existence of another fact may be reasonably inferred

Question 83

RES IPSA LOQUITUR

Answer 83

“the thing speaks for itself” is a doctrine that infers negligence from the very nature of an accident or injury, in the absence of direct evidence on how any defendant behaved

Question 84

Basic elements of RIL

Answer 84

1. P must show that the injury is one which would not ordinarily occur absent negligence
2. P must show that D had control over the instrumentality causing the injury

Question 85

General on Duty of Care

Answer 85

1) Forseeability – Not the only consideration
2) Relationship – Hard to find a relationship to a third party
3) Consideration of Legal or Social Policy
4) Neighbor Standard – Neighbor is one who the D ought ot have had in contemplation that would be in danger when they where performing the negligent act.
5) Cause the dangerous condition: Duty can be found – Especially true if one causes a dangerous situation on a highway.

Question 86

DUTY TO TAKE POSITIVE ACTION

Answer 86

NO duty to take positive action to prevent another’s injury or to aid another who is injured if the D is in no way responsible for the injury or for creating the harm – even if D had ability to protect, even if D’s inaction is unreasonable, etc. Ex: D sees victim drowning and does nothing – no liability b/c no duty

Question 87

Exception to general rule of duty to take positive action

Answer 87

1. Where there is some special and substantial relationship between the P and D a.Ex: family, e’er/e’ee; host/guest; carrier/passenger; jailer/prisoner
2. Where D is responsible for injury or peril, at least partially
3. Where the D voluntarily undertakes to aid victim, he owes a duty to the victim a.When the D begins to aid victim, and then ceases, no liability for terminating aid provided that the abandonment leaves victim in no worse condition

Question 88

HARM TO INTANGIBLE INTERESTS

Answer 88

Generally – no liability for pure economic loss, only if there is some physical damage that accompanies physical loss. Negligence actions can only arise for damages to person or prop – if economic loss is suffered as a consequence of injury to person or prop, there is cause of action for negligence

Question 89

HARM WITHOUT IMPACT

Answer 89

Minor cuts – distress. Minor burns – distress consequential damages for emotional distress

Question 90

EMOTIONAL DISTRESS

Answer 90

General rule and still the majority, is that there has to be physical injury. Difference between ED and Harm without impact cases – nature of harm for which P seeks damage. ED must be so severe it keeps P from engaging in normal activities.

Question 91

CAUSATION

Answer 91

2 elements of causation – the D’s negligent act must be (1) the cause in fact, and (2) theproximate cause, of the P’s injuries

Question 92

sine qua non

Answer 92

D’s negligent conduct is the cause in fact (sine qua non) of P’s injuries if the P would not have been injured but for the D’s act

Question 93

CONCURRENT CAUSES

Answer 93

If two causes concur to bring about an event, but either one alone would bring about that result, some other test is needed. Thus in these cases each cause has in fact played so important a part in producing the result that responsibility should be imposed upon it ; and it is equally clear that neither one of them can be absolved from that responsibilit

Question 94

LEGAL OR PROXIMATE CAUSE

Answer 94

Proximate cause concerns a determination of whether legal liability should be imposed where cause in fact has been established

Question 95

Proximate cause

Answer 95

concerns a determination of whether legal liability should be imposed where cause in fact has been established. Cause in fact is necessary to determine proximate cause. If no cause in fact, then there is no proximate cause

Question 96

Direct Consequences

Answer 96

Direct – Natural and Probable

i. Railroad train derails and hits electric wires which electrocutes an individual miles away.
ii. Wire hits grain bin and knocks over bin, truck. Gun goes off and shoots P

Question 97

Intervening Causes

Answer 97

P and D in car accident; P suffered depression caused by brain injury from accident, and was given drug for this; P later ate cheese, and combination of drug and cheese caused P to have stroke. Eating cheese was a superseding cause, so D’s conduct was not cause of the P’s stroke

Question 98

Shifting Responsibility: no shift

Answer 98

When the D has negligently created risk of harm to P, the failure of 3rdperson to intervene and take some action to prevent the harm will usually not affect the liability of the D if the harm in fact occurs. The fact that the 3rd person was under duty to P to prevent the harm (and thus would be liable for failure to do so) does NOT make any difference to D’s liability

Question 99

Shifting Responsibility: Yes shift

Answer 99

If someone takes control of the harm then the Responsibility can shift. There is no general principal that will determine when the risk will be found to have shifted.
i.D leaves dynamite around. Child picks it up and takes it home.Mom sees the D and takes it away. Mom leaves it around and child gets it and is injured. Mom takes control and thus there is a shift in responsibility.

Question 100

Rescue Doctrine

Answer 100

Practical effect of the rescue doctrine is that it makes D liability to the rescuer in addition to the liability to the rescuee or to the endangered prop; if D would be liable for negligence to the rescuee, D also liable to the rescuer. Cardozo’s famous opinion. –“Danger invites Rescue “ the cry of distress is the summons to relief.”Thus the consequence of a rescuer is natural and probable.

Question 101

Rescue doctrine exceptions

Answer 101

Firefighter’s Rule: Doctrine often not extended to professionals – police – firefighters etc.. unless the type of risk was not reasonably anticipated by the job. Professionals are deemedt to have already been compensated for their service

Question 102

Normal Intervening Forces: 2nd Restate

Answer 102

“a normal consequence of a situation created by the actor’s negligent conduct.”

Question 103

Nominal Damages

Answer 103

A token award to the P in order to vindicate rights when the P establishes liability but no actual damages; these are not awarded in negligence cases because there is no negligence absent some actual damage

Question 104

Compensatory Damages

Answer 104

Financial equivalent of the loss or harm suffered by P; Intended to make the P whole again or restore them to the position they were in prior to the tort.

Question 105

Punitive Damages:

Answer 105

Additional sum, over the compensation of the P awarded in order to punish the defendant, to make an example of D and deter D and others from conduct.

Question 106

Five Elements of Damages

Answer 106

1.Past physical and mental pain 2.Future physical and mental pain 3.Future medical expenses 4.Loss of earning capacity 5.Permanent disability and disfigurement

Question 107

Economic Loss

Answer 107

Medical expenses:  
Lost Wages: 
Lost or Impairment of Future Earnings Capacity:  
Damage Calculation PV:  
Federal income Tax:  
Interest:

Question 108

Non-Economic Losses

Answer 108

Physical Pain and Suffering, mental anguish:  
Loss of Function or Appearance: 
Emotional Distress:  
Litigation Induced Stress: 
Loss of Enjoyment of Life:  
Per Diem:  
Reduced Life Expectancy:  T
Remittitur: 
Additur:  
Loss of Consortium:  
Litigation Expenses:  
Contingent Fee:  
Hourly Fee:

Question 109

Collateral Source Rule

Answer 109

Payments from a collateral source (such as P’s insurer) that compensate for the P’s loss are NOT taken into account, and the D must compensate P without regard to these payments

a. However, benefits paid to P from D’s insurer are not collateral sources, and these do reduce the P’s damages
b. P may be req’d to repay insurance company for any damages that P received from D that have been reimbursed by insurer

Question 110

Problem with Lump Sum Payment System

Answer 110

P often spends the money

Question 111

Problem with periodic payment

Answer 111

D is exposed to continual liability

Question 112

annuity awards

Answer 112

Lump sum paid by D and put in annuity for P. Protects P from spending all at once and ensures that the money will more than likely grow at a good rate at least well over inflation

Question 113

P can recover for “sentiment.” T or F?

Answer 113

False. P can’t recover for “sentiment”– i.e., family heirloom that’s valuable to P but worthless to others – P can’t recover for sentiment or emotion, just for economic damages

Question 114

Avoidable consequences rule

Answer 114

P can’t recover damages if the P took an unreasonable course of conduct (unreasonable expenses, unreasonable refusal to submit to surgery when reas person would have done so)

Question 115

Contributory Negligence

Answer 115

happens before any damages occur.

Question 116

Avoidable consequences happen after a legal wrong but before some damages may still be adverted.

Answer 116

happen after a legal wrong but before some damages may still be adverted.

Question 117

Negligence

Answer 117

conduct which creates an undue risk of harm to others

Question 118

Contributory negligence

Answer 118

conduct which involves an undue risk of harm to the actor himself.

Question 119

Comparative Negligence

Answer 119

Comparative negligence reduces the P’s recovery by the percentage of P’s negligence, fault, or responsibility

Question 120

Pure Comparative Negligence

Answer 120

P can recover even if P’s negligence exceeds D’s – Recovered based on percent negligence of each party

Question 121

Modified Comparative Negligence:

Answer 121

P can recover only if P’s negligence does not exceed D’s – states differ as to whether P can recover when negligence is equal ○In modified states, if there are multiple D’s, the P’s negligence is compared against ALL of the D’s

Question 122

severable liability

Answer 122

multiple D’s – since contributory negligence apportions fault, if there are two or more D’s they should only be liable for their portion of the fault, and not for entire damages

Question 123

Assumption of Risk

Answer 123

Acts as a complete bar to P’s recovery

Question 124

Express assumption of risk:

Answer 124

P expressly agrees in advance that the D is under no obligation to care for him and is not liable for consequences of conduct that would otherwise be negligent

Question 125

Implied Assumption of risk:

Answer 125

Must be three elements
■Must be risk of harm to P caused by D’s conduct or by the condition of D’s land or chattels
■P must have actual knowledge of the particular risk and appreciate its magnitude (general knowledge of a “danger” is not sufficient)
■P must voluntarily choose to enter or remain within the area of the risk under circumstances that manifest his willingness to accept that particular risk

Question 126

“volenti non fit injuria”

Answer 126

(“to the willing there is no legal injury”). The consent must be voluntary – there is no voluntary consent if there is no alternative or no reasonable alternative available to the P

Question 127

Statute of limitations

Answer 127

begins to run when the cause of action first arises or accrues

Question 128

In negligence action, the SOL doesn’t begin to run until…

Answer 128

the P actually suffers damage

Question 129

In trespass action, no damage is req’d so P has cause of action when…

Answer 129

trespass first occurs

Question 130

Discovery Doctrine

Answer 130

SOL doesn’t begin to run until P actually discovers or should have discovered the injurySOL doesn’t begin to run until P actually discovers or should have discovered the injury. This has been applied only to medical claims – not applied to all negligence claims ○Does NOT apply when the P is aware of the injury but just not aware of who caused it

Question 131

Statutes of Repose

Answer 131

Adopted by legislatures; bars all claims after certain time has elapsed

Question 132

Immunities

Answer 132

avoid liability in tort under all circumstances

Question 133

Spousal Immunity

Answer 133

At common law, there was complete spousal immunity – neither spouse could sue the other for torts committed before or during the marriage . Most states have now completely abolished this rule

Question 134

Parent/Child Immunity

Answer 134

Some states have completely abolished it 2.Others have created exceptions

Question 135

exceptions to parent child immunity:

Answer 135

a. Personal injuries inflicted intentionally, or willfully or wantonly
b. Injuries caused to child through gross negligence; or willful disregard for child’s well-being
c. Sexual assault or sexual abuse
d. Wrongful death action by child against parent for death of other parent
e. Action against parent for child’s wrongful death
f. When D is step-parent or someone standing in loco parentis
g. Legally emancipated children
h. Auto accidents

Question 136

Municipalities were only liable for…

Answer 136

proprietary, not governmental, functions. Doctrine has been abolished by most state courts

Question 137

Governmental functions

Answer 137

Functions that are only performed by gov’t (police, fire, courts, etc)

Question 138

Proprietary functions:

Answer 138

Functions that could as well be performed by private corps a.Ex: Construction and maintenance of streets, sewers, public improvements, etc

Question 139

Gov immunity

Answer 139

Mostly eliminated, but Many states and the fed gov’t continue to have immunity for discretionary functions (where the gov’t is acting to establish policy), but have eliminated it for ministerial acts (acts that implement or effectuate policies)

Question 140

Public officers immunity

Answer 140

a.They are subject to personal liability for tortious conduct committed in the course of their official duties b.The public official may be shielded from liability if the official’s conduct comes within the common law official immunity (a separate immunity from the sovereign immunity)

Question 141

Legislators and judges have absolute immunity for acts committed within the scope of their office, even if they acted in bad faith. T or F?

Answer 141

True

Question 142

Mistake as to identity

Answer 142

A mistake is not a defense for liability because the intent is still there.

Question 143

Battery includes:

Answer 143

♣	Grabbing
♣	Spitting
♣	Farceably removing clothing (hat, etc.)
♣	Searching pockets
o	Does not include:
♣	Tapping shoulder

Question 144

OUJI 3d (Rev 2009) Instruction No. 19.1

Answer 144

In order for [Plaintiff] to recover from [Defendant] on [Plaintiff’s] claim of assault, you must find that both of the following have been established:

1. [Defendant] acted either with the intent of making a [harmful/offensive] contact with the person of [Plaintiff], or with the intent of putting [Plaintiff] in apprehension of such a contact; and
2. [Plaintiff] was placed in apprehension of an immediate [harmful/offensive] contact with [his/her] person by the conduct of [Defendant]; or [Plaintiff] was caused to suffer fright and terror.

Question 145

OUJI-Civ. No. 20.2

Answer 145

Defendant] intentionally caused emotional distress to [Plaintiff] if [he/she/it] desired to cause such distress or knew that such distress was substantially certain to result from [his/her/its] conduct.

[Defendant] recklessly caused emotional distress to [Plaintiff] if [he/she/it] knew there was a substantial probability that emotional distress to [Plaintiff] would result from [his/her/its] conduct, and [he/she/it] deliberately disregarded that probability.

Question 146

OUJI-Civ. No. 20.3

Answer 146

The term “emotional distress” means mental distress, mental pain and suffering, or mental anguish. It includes all highly unpleasant mental reactions, such as fright, horror, grief, humiliation, embarrassment, anger, chagrin, disappointment, and worry.

Question 147

OUJI-Civ. No. 20.4

Answer 147

If you decide for [Plaintiff], then you must assess [his/her] damages, which may be actual or nominal.

To assess actual damages you must find that [Plaintiff] sustained actual injuries as a direct result of the claimed emotional distress.

[Plaintiff] is entitled to an amount of dollars to compensate for all injuries directly caused by the emotional distress, whether they could have been anticipated or not, including:

1. Emotional distress;
2. Any physical discomfort or inconveniences;
3. Any physical illness or injury;
4. Any reasonable medical expenses;
5. Any loss of reputation;
6. Any loss of earnings; and
7. [Insert any other items of compensable damage].

If you find in favor of [Plaintiff] but do not find any actual damages, you shall nonetheless award [him/her] nominal damages in the sum of one dollar.

Question 148

OUJI-Civ. 17.1

Answer 148

A trespass is an entry [upon/under the surface of] the real estate of another without the permission of the person lawfully entitled to possession. Permission may be either express or implied.

Question 149

OUJI-Civ.27.1

Answer 149

Conversion is an unauthorized assumption and exercise of the right of ownership over the personal property of another person that is inconsistent with the rights of the owner. [Plaintiff] is required to prove by the greater weight of the evidence the following in order to recover on the claim for conversion against [Defendant]:

1. [Plaintiff] (was the owner of)/possessed/(had the right to possess) the [Specify Property];
2. [Defendant] intentionally (took possession of)/(prevented [Plaintiff] from having access to)/destroyed the [Specify Property];
3. [Plaintiff] did not consent; and
4. [Plaintiff] was harmed as a result of the conduct of [Defendant].

Question 150

OUJI-Civ.27.2

Answer 150

If you decide for [Plaintiff] on the question of liability, you must then determine the amount of money that will reasonably and fairly compensate [him/her] for the conversion of the [insert description of property]. That amount is:

1. The value of the property at the time of the conversion with interest from that time;

or

2. The highest market value of the property at any time between the time of the conversion and your verdict;

and a fair compensation for the time and money properly expended by [Plaintiff] in pursuit of the property.

Question 151

OUJI-Civ. No 14.13: Informed consent required

Answer 151

CAUSATION: Before a physician may be held liable for a breach of [his/her] duty to disclose, the patient must establish that [he/she] would have chosen no treatment or surgery or a different course of treatment of surgery had the alternatives and material risks of each been made known to [him/her]. In addition, the patient must have been injured by the undisclosed risk as a result of submitting to the treatment or surgery.

Question 152

OUJI-Civ 14.12

Answer 152

EXCEPTIONS TO DUTY.

Question 153

OUJI-Civ 14.11

Answer 153

PHYSICIAN’S DUTY: It is the duty of the physician to disclose to [his/her] [patient] all relevant information to enable that [patient] to make an informed decision on whether to consent to or reject the physician’s proposed treatment or surgery.

This duty of disclosure includes advising a [patient], when a proposed treatment or surgery involves a known risk of death or serious bodily harm, of the possibility of such outcome and explaining in understandable terms the complications that might occur. The disclosure shall include any alternatives to the proposed treatment or surgery and the risks of each, including the risk in foregoing all treatment or surgery.

Question 154

OUJI-Civ 14.15

Answer 154

DUTY OF HOSPITAL: A hospital must exercise ordinary care and attention for its patients. Ordinary care means that care and attention required under all the circumstances that is appropriate to the physical and mental condition of each patient. A hospital has a duty to [(supervise care rendered to a patient by hospital employees)/(use reasonable care when providing the patient with a nurse/physician/(other health care provider))/(ensure that staff privileges are granted only to competent physicians)/(protect patients from staff physicians that it knows or reasonably should know are incompetent)].

Question 155

OUJI-Civ. No. 9.2

Answer 155

NEGLIGENCE DEFINED: “Negligence” is the failure to exercise ordinary care to avoid injury to another’s person or property. “Ordinary care” is the care which a reasonably careful person would use under the same or similar circumstances. The law does not say how a reasonably careful person would act under those circumstances. That is for you to decide. Thus, under the facts in evidence in this case, if a party failed to do something which a reasonably careful person would do, or did something which a reasonably careful person would not do, such party would be negligent.

Question 156

OUJI-Civ. No. 10.10: Sudden Emergency

Answer 156

The Committee recommends that no Instruction should be given, because the general instructions on negligence adequately cover this issue.

Question 157

OUJI-Civ. No. 9.4 and 9.4A

Answer 157

CHILD’S CAPACITY FOR NEGLIGENCE: For children between 7 and 14 years old]- A child between 7 and 14 years old is presumed not to be capable of being negligent, but may be shown to be capable of negligence. Since [Name of Child] was ____ years old at the time of the accident, you are to presume that [he/she] was not capable of being negligent. This presumption may be overcome, though, and the [Name of Other Party] has the burden of proving by the greater weight of the evidence that [Name of Child] was capable of negligence.

[For children 14 years and older]- A child 14 years old or older is presumed to be capable of being negligent, but may be shown not to be capable of negligence. Since [Name of Child] was ____ years old at the time of the accident, you are to presume that [he/she] was capable of being negligent. This presumption may be overcome, though, and [Name of Child] has the burden of proving by the greater weight of the evidence that [he/she] was not capable of negligence.

CHILDREN- STANDARD OF CARE: Children are under a duty to use that degree of care which children of like age, experience, and intelligence are accustomed to use under similar circumstances to protect [themselves/others] from injury.

Question 158

OUJI-Civ. No. 5.6

Answer 158

EXEMPLARY OR PUNITIVE DAMAGES- FIRST STAGE:

Question 159

OUJI-Civ No. 9.17

Answer 159

If you find in favor of [Plaintiff], and grant [him/her] actual damages, then you must also find by a separate verdict, whether [Defendant] (acted in reckless disregard of the rights of others) (and/or) (acted intentionally and with malice towards others).

[Plaintiff] has the burden of proving this by clear and convincing evidence. By that I mean that you must be persuaded, considering all the evidence in the case, that the proposition on which the party has this burden of proof is highly probable and free from serious doubt.

[The conduct of [Defendant] was in reckless disregard of another’s rights if [Defendant] was either aware, or did not care, that there was a substantial and unnecessary risk that [his/her/its] conduct would cause serious injury to others. In order for the conduct to be in reckless disregard of another’s rights, it must have been unreasonable under the circumstances, and also there must have been a high probability that the conduct would cause serious harm to another person.]

[Malice involves either hatred, spite, or ill-will, or else the doing of a wrongful act intentionally without just cause or excuse.]

If you find that [Defendant] acted (in reckless disregard of the rights of others) or (intentionally and with malice towards others), you may award punitive damages against [Defendant] in a later part of this trial. If you find that [Defendant] did not act (in reckless disregard of the rights of others) or (intentionally and with malice towards others), you may not award punitive damages against [Defendant].

Question 160

OUJI-Civ no 9.18

Answer 160

COMPARATIVE NEGLIGENCE: ONE DEFENDANT- DEFINITION: As a part of [his/her] defense, [Defendant] first denies that any negligence on [his/her] part was the direct cause of the occurrence involved in this lawsuit and any resulting injuries to [Plaintiff]. [Defendant] further contends that if, however, the jury should find that [he/she] was negligent to some degree, then it is [his/her] contention that [Plaintiff’s] own negligence exceeded [Defendant’s] negligence, so as to prevent any recovery by [Plaintiff] in this lawsuit. To establish this defese, [Defendant] must show by the greater weight of the evidence that [Plaintiff] was negligent and [his/her] negligence was a direct cause of [his/her] injury.

Under the law you are to compare the percentage (0%-100%) of negligence of [Plaintiff], if any, with the percentage (0%-100%) of negligence of [Defendant], if any.

Question 161

OUJI-Civ. No. 9.14

Answer 161

ASSUMPTION OF RISK: [Plaintiff] assumed the risk of injury resulting from [Defendant’s] negligence if [he/she] voluntarily exposed [himself/herself] to injury with knowledge and appreciation of the danger and risk involved. To establish this defense, [Defendant] must show by the weight of the evidence that:

1. [Plaintiff] knew of the risk and appreciated the degree of danger;
2. [Plaintiff] had the opportunity to avoid the risk;
3. [Plaintiff] acted voluntarily; and
4. [Plaintiff]’s action was the direct cause of [his/her] injury

Question 162

OUJI-Civ 4.1

Answer 162

PERSONAL INJURIES- ADULTS: If you decide for [Plaintiff], you must then fix the amount of [his/her] damages. This is the amount of money that will reasonably and fairly compensate [him/her] for the injury sustained as a result of the [negligence/(wrongful conduct)] of [Defendant].

In fixing the amount you will award [him/her] you may consider the following elements:

A. [His/Her] physical pain and suffering, past and future;
B. [His/Her] mental pain and suffering, past and future;
C. [His/Her] age;
D. [His/Her] physical condition immediately before and after the accident;
E. The nature and extent of [his/her] injuries;
F. Whether the injuries are permanent;
G. The physical impairment;
H. The disfigurement;
I. Loss of [earnings/time];
J. Impairment of earning capacity;
K. The reasonable expenses of the necessary medical care, treatment, and services, past and future.

Question 163

OUJI-Civ. No. 5.3

Answer 163

DUTY TO MITIGATE DAMAGES- PERSONAL INJURY: In fixing the amount of money that will reasonably and fairly compensate [Plaintiff], you are to consider that an injured person must exercise ordinary care to obtain proper treatment. Damages cannot be recovered for an injury resulting from a failure to exercise such care

Question 164

OUJI-civ. No. 12.10

Answer 164

AFFIRMATIVE DEFENSE OF VOLUNTARY ASSUMPTION OF THE RISK OF A KNOWN DEFECT: [Defendant] has raised the defense in this case that [Plaintiff] voluntarily assumed the risk of injury from a known defect in the [product]. Assumption of the risk occurs where a person voluntarily and unreasonably exposes [himself/herself] to a known, appreciated, and avoidable danger of injury from the defect in the [product]. To establish this defense, [Defendant] must show by the weight of the evidence that:

1. A defect in the [product] existed, which created a risk of injury;
2. [Plaintiff] knew of the risk and appreciated the degree of danger;
3. [Plaintiff] had the opportunity to avoid the risk; and
4. [Plaintiff]’s use of the [product] was voluntary and unreasonable and was the direct cause of [his/her] injury.

Question 165

OUJI-civ no 12.9

Answer 165

AFFIRMATIVE DEFENSE OF MISUSE OF PRODUCT: [Defendant] has raised the defense in this case that [Plaintiff] misused the [Specify Product] and the misuse was the sole cause of [Plaintiff]’s injury. Misuse of a product is a use that could not reasonably be anticipated by its maker. If [Plaintiff] was using the [Specify Product] in a way that was foreseeable or should have been anticipated by [Defendant], it is not misuse even if [Plaintiff] was negligent in using it.

Question 166

Restatement 46(2)

Answer 166

Offensive conduct: presence: requires knowledge of bystanders presence and (1) directed at a member of bystanders immediate family or (2) bystander suffers bodily harm as a result of distress

Question 167

Restatement (first) of torts S 218 (1934)

Answer 167

Liability to the Person in Possession:
One who without a consensual or other privilege to do so, uses or otherwise intentionally intermeddles with a chattel which is in the possession of another is liable for a trespass to such person if, but only if,
(a) the chattel is impaired as to its condition, quality or value, or
(b) the possessor is deprived of the use of the chattel for a substantial time, or
(c) bodily harm is thereby caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest.

Question 168

Restatement (second) of torts S 217

Answer 168

Ways of Committing Trespass to Chattel:
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 169

Restatement (second) of torts S 218

Answer 169

Liability to Person in Possession:
One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if,
(a) he dispossesses the other of the chattel, or
(b) the 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) bodily 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 170

Restatement (2d) Torts S 222A and 223: What constitutes conversion and Ways of Committing Conversion

Answer 170

(1) 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.
(2) In determining the seriousness 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
A conversion may be committed by intentionally
(a) dispossessing another of a chattel as stated in §§ 221 and 222;
(b) destroying or altering a chattel as stated in § 226;
(c) using a chattel as stated in §§ 227 and 228;
(d) receiving a chattel as stated in §§ 229 and 231;
(e) disposing of a chattel as stated in § 233;
(f) misdelivering a chattel as stated in §§ 234 and 235;
(g) refusing to surrender a chattel as stated in §§ 237- 241.

Question 171

Restatement, Second, Torts S 65

Answer 171

Self-Defense by Force Threatening Death or Serious Bodily Harm: (1) Subject to the statement in Subsection (3), an actor is privileged to defend himself against another by force intended or likely to cause death or serious bodily harm, when he reasonably believes that

(a) the other is about to inflict upon him an intentional contact or other bodily harm, and that
(b) he is thereby put in peril of death or serious bodily harm or ravishment, which can safely be prevented only by the immediate use of such force.
(2) The privilege stated in Subsection (1) exists although the actor correctly or reasonably believes that he can safely avoid the necessity of so defending himself by
(a) retreating if he is attacked within his dwelling place, which is not also the dwelling place of the other, or
(b) permitting the other to intrude upon or dispossess him of his dwelling place, or
(c) abandoning an attempt to effect a lawful arrest.
(3) The privilege stated in Subsection (1) does not exist if the actor correctly or reasonably believes that he can with complete safety avoid the necessity of so defending himself by
(a) retreating if attacked in any place other than his dwelling place, or in a place which is also the dwelling of the other, or
(b) relinquishing the exercise of any right or privilege other than his privilege to prevent intrusion upon or dispossession of his dwelling place or to effect a lawful arrest.

Question 172

Restatement (2nd) Torts S 76 Defense of Third Person

Answer 172

The actor is privileged to defend a third person from a harmful or offensive contact or other invasion of his interests of personality under the same conditions and by the same means as those under and by which he is privileged to defend himself if the actor correctly or reasonably believes that

(a) the circumstances are such as to give the third person a privilege of self-defense, and
(b) his intervention is necessary for the protection of the third person.

Question 173

Restatement (2d) Torts S 120 A

Answer 173

Temporary Detention for Investigation: One who reasonably believes that another has tortiously taken a chattel upon his premises, or has failed to make due cash payment for a chattel purchased or services rendered there, is privileged, without arresting the other, to detain him on the premises for the time necessary for a reasonable investigation of the facts.

Question 174

Restatement (second) Torts S 150 (1965)

Answer 174

Factors Involved in Determining Reasonableness of Punishment: In determining whether force or confinement is reasonable for the control, training, or education of a child, the following factors are to be considered:

(a) whether the actor is a parent;
(b) the age, sex, and physical and mental condition of the child;
(c) the nature of his offense and his apparent motive;
(d) the influence of his example upon other children of the same family or group;
(e) whether the force or confinement is reasonably necessary and appropriate to compel obedience to a proper command;
(f) whether it is disproportionate to the offense, unnecessarily degrading, or likely to cause serious or permanent harm.

Question 175

Restatement (second) of Torts (1965)

Answer 175

Pg 148-149

Question 176

Restatement (third) of Torts: liability for physical and emotional harm (2010)

Answer 176

149

Question 177

Restatement (Second) of Torts S 289 (1965)

Answer 177

289 Recognizing Existence of Risk: The actor is required to recognize that his conduct involves a risk of causing an invasion of another’s interest if a reasonable man would do so while exercising

(a) such attention, perception of the circumstances, memory, knowledge of other pertinent matters, intelligence, and judgment as a reasonable man would have; and
(b) such superior attention, perception, memory, knowledge, intelligence, and judgment as the actor himself has.

Question 178

Restatement (Third) of Torts: Phys. & Emot. Harm S 12 (2010)

Answer 178

Knowledge and Skills: If an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person.

Question 179

Restatement (Second) Torts S 295A (1965)

Answer 179

Factors Important in Determination of Standard of Reasonable Conduct: In determining whether conduct is negligent, the customs of the community, or of others under like circumstances, are factors to be taken into account, but are not controlling where a reasonable man would not follow them

Question 180

Restatement (Third) of Torts: Phys. & Emot. Harm S 10 (2010)

Answer 180

Children negligence: (a) A child’s conduct is negligent if it does not conform to that of a reasonably careful person of the same age, intelligence, and experience, except as provided in Subsection (b) or (c).

(b) A child less than five years of age is incapable of negligence.
(c) The special rule in Subsection (a) does not apply when the child is engaging in a dangerous activity that is characteristically undertaken by adults.

Question 181

Restatement (Third) of Torts: Phys. & Emot. Harm S 11 (2010)

Answer 181

Disability negligence: (a) The conduct of an actor with a physical disability is negligent only if the conduct does not conform to that of a reasonably careful person with the same disability.

(b) The conduct of an actor during a period of sudden incapacitation or loss of consciousness resulting from physical illness is negligent only if the sudden incapacitation or loss of consciousness was reasonably foreseeable to the actor.
(c) An actor’s mental or emotional disability is not considered in determining whether conduct is negligent, unless the actor is a child.

Question 182

Restatement (Second) Torts S 500 (1965):

Answer 182

Reckless Disregard of Safety Defined: The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Question 183

Restatement (Third) Torts: Liability for physical and emotional harm S 2 (2010):

Answer 183

`

Question 184

Restatement (Second) Torts S 288 and 286(1965)

Answer 184

When Standard of Conduct Defined by Legislation or Regulation Will Not Be Adopted: The court will not adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively

(a) to protect the interests of the state or any subdivision of it as such, or
(b) to secure to individuals the enjoyment of rights or privileges to which they are entitled only as members of the public, or
(c) to impose upon the actor the performance of a service which the state or any subdivision of it undertakes to give the public, or
(d) to protect a class of persons other than the one whose interests are invaded, or
(e) to protect another interest than the one invaded, or
(f) to protect against other harm than that which has resulted, or
(g) to protect against any other hazards than that from which the harm has resulted.

The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part

(a) to protect a class of persons which includes the one whose interest is invaded, and
(b) to protect the particular interest which is invaded, and
(c) to protect that interest against the kind of harm which has resulted, and
(d) to protect that interest against the particular hazard from which the harm results

Question 185

Restatement (Second) S 288(a)

Answer 185

When Standard of Conduct Defined by Legislation or Regulation Will Not Be Adopted: The court will not adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively
(a) to protect the interests of the state or any subdivision of it as such, or

Question 186

Restatement of (Second) Torts S 328D

Answer 186

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Question 187

Restatement (Second) of Torts S323 (1965)

Answer 187

Negligent Performance of Undertaking to Render Services: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.

Question 188

Restatement (second) of torts S 431 (1965)

Answer 188

What Constitutes Legal Cause: The actor’s negligent conduct is a legal cause of harm to another if

(a) his conduct is a substantial factor in bringing about the harm, and
(b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.

Question 189

Restatement (second) of torts S 432(1-2) (1965)

Answer 189

Negligent Conduct as Necessary Antecedent of Harm: (1) Except as stated in Subsection (2), the actor’s negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.
(2) If two forces are actively operating, one because of the actor’s negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor’s negligence may be found to be a substantial factor in bringing it about.

Question 190

Restatement (second) of torts S 433 (1965)

Answer 190

Considerations Important in Determining Whether Negligent Conduct is Substantial Factor in Producing Harm: The following considerations are in themselves or in combination with one another important in determining whether the actor’s conduct is a substantial factor in bringing about harm to another:

(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;
(b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;
(c) lapse of time.

Question 191

Restatement (third) of torts: Phys. & Emot. Harm S 27 (2010)

Answer 191

Multiple Sufficient Causes: If multiple acts occur, each of which under § 26 alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm

Question 192

Restatement (Second) of Torts S 324A (a965)

Answer 192

Liability to Third Person for Negligent Performance of Undertaking: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Question 193

Restatement (second) of Torts S 479 (1965): Last clear chance: Helpless Plaintiff

Answer 193

A plaintiff who has negligently subjected himself to a risk of harm from the defendant’s subsequent negligence may recover for harm caused thereby if, immediately preceding the harm,

(a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and
(b) the defendant is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm, when he
(i) knows of the plaintiff’s situation and realizes or has reason to realize the peril involved in it or
(ii) would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is then his duty to the plaintiff to exercise.

Question 194

Restatement (third) of torts: apportionment Liab. S 7 (2000)

Answer 194

Effect of Plaintiff’s Negligence When Plaintiff Suffers an Indivisible Injury: Plaintiff’s negligence (or the negligence of another person for whose negligence the plaintiff is responsible) that is a legal cause of an indivisible injury to the plaintiff reduces the plaintiff’s recovery in proportion to the share of responsibility the factfinder assigns to the plaintiff (or other person for whose negligence the plaintiff is responsible).

Question 195

Restatement 2nd S 909

Answer 195

Punitive Damages Against a Principal: Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if,

(a) the principal or a managerial agent authorized the doing and the manner of the act, or
(b) the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or
(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or
(d) the principal or a managerial agent of the principal ratified or approved the act.

Question 196

RoT (second) S 491 (1965) – Joint enterprise

Answer 196

(1) Any one of several persons engaged in a joint enterprise, such as to make each member of the group responsible for physical harm to other persons caused by the negligence of any member, is barred from recovery against such other persons by the negligence of any member of the group.
(2) Any person engaged in such a joint enterprise is not barred from recovery against the member of the group who is negligent, but is barred from recovery against any other member of the group.

Question 197

RoT (third) Apportionment Liab. S 5 (2000)

Answer 197

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Question 198

RoT (second) S 840 (1979)

Answer 198

Failure to Abate Harmful Natural Condition of Land: (1) Except as stated in Subsection (2), a possessor of land is not liable to persons outside the land for a nuisance resulting solely from a natural condition of the land.
(2) A possessor of land who knows or has reason to know that a public nuisance caused by natural conditions exists on his land near a public highway, is subject to liability for failure to exercise reasonable care to prevent an unreasonable risk of harm to persons using the highway.

Question 199

RoT (second) S 337 (1965)

Answer 199

Artificial Conditions Highly Dangerous to Known Trespassers: A possessor of land who maintains on the land an artificial condition which involves a risk of death or serious bodily harm to persons coming in contact with it, is subject to liability for bodily harm caused to trespassers by his failure to exercise reasonable care to warn them of the condition if

(a) the possessor knows or has reason to know of their presence in dangerous proximity to the condition, and
(b) the condition is of such a nature that he has reason to believe that the trespasser will not discover it or realize the risk involved

Question 200

RoT (Second) S 332

Answer 200

Invitee Defined: (1) An invitee is either a public invitee or a business visitor.

(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.

Question 201

RoT Second 343a

Answer 201

Known or Obvious Dangers: (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
(2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.

Question 202

RoT (second) 514 (1977)

Answer 202

Harborers of Wild Animals or Abnormally Dangerous Domestic Animals: One who, although not in possession, harbors a wild animal or an abnormally dangerous domestic animal, is subject to the same liability as if he were in possession of it.

Question 203

RoT (2) S 520 (1977): abnormally dangerous activites

Answer 203

In determining whether an activity is abnormally dangerous, the following factors are to be considered:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.

Question 204

RoT (second) 519 (1977)

Answer 204

Abnormally Dangerous Activities: (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

Question 205

RoT (Second) S 515 (1977)

Answer 205

Effect of Contributory Fault: (1) A plaintiff is not barred from recovery by his failure to exercise reasonable care to observe the propinquity of a wild animal or an abnormally dangerous domestic animal or to avoid harm to his person, land or chattels threatened by it.
(2) A plaintiff is barred from recovery by intentionally and unreasonably subjecting himself to the risk that a wild animal or an abnormally dangerous domestic animal will do harm to his person, land or chattels.

Question 206

RoT (Third) S 25 (2010) Phy. And Emot. Harm

Answer 206

Source of Danger: To make the actor liable for an assault under the rule stated in § 21, the actor must have put the other in apprehension that the actor will himself inflict a bodily contact upon him.

Question 207

RoT (second) 402A (1965)

Answer 207

Special Liability of Seller of Product for Physical Harm to User or Consumer: (1) 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

(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Question 208

RoT (third) Prod. Liab. S 1 (1998): Liability of commercial seller…

Answer 208

Interest: The word “interest” is used throughout the Restatement of this Subject to denote the object of any human desire.

Question 209

RoT (third) Prod. Liab. S 2 (1998): Categories of product defect

Answer 209

Act: The word “act” is used throughout the Restatement of this Subject to denote an external manifestation of the actor’s will and does not include any of its results even the most direct, immediate and intended.

Question 210

RoT (3) Prod. Liab. S 7 (1998)

Answer 210

Injury: The word “injury” is used throughout the Restatement of this Subject to denote the invasion of any legally protected interest of another.

Question 211

RoT (3) Prod. Liab. S 6 (1998)

Answer 211

Tortious Conduct: The word “tortious” is used throughout the Restatement of this Subject to denote the fact that conduct whether of act or omission is of such a character as to subject the actor to liability under the principles of the law of Torts.