Torts I Finals Prep

Question 1

Transferred Intent

Answer 1

Exists when a defendant intends to commit an intentional tort against one person but instead commits the tort against a different person. It also exists when a person intends an assault but instead commits a battery.

Question 2

Battery

Answer 2

A person is liable for battery if:
1. They intend to cause contact with the plaintiff’s person with such contact;
2. Their affirmative conduct causes such contact; and
3. The contact causes harm or is offensive to the plaintiff.

Question 3

Battery Sub Elements

Answer 3

1(a). The intent required is the intent to make contact, not intent to do the act that leads to contact nor intent to harm.
1(b). Knowledge with substantial certainty that a contact will occur.
1(c). CA and some jurisdictions require “dual intent” meaning intent to make contact and for the purpose of harm or offense.
2(a). The conduct must be volitional.
2(b). It is sufficient to make contact with something closely associated with the plaintiff.
3(a). The test is what would be offensive to an ordinary person not unduly sensitive to personal dignity.
3(b). Bodily harm is not required.

Question 4

Assault

Answer 4

A person commits an assault if:
1. The defendant intends to cause the plaintiff to anticipate an imminent and harmful or offensive contact with the plaintiff’s person, and;
2. The plaintiff was placed in imminent apprehension as a result of the defendant’s conduct.

Question 5

False Imprisonment

Answer 5

A defendant is subject to liability to a plaintiff for false imprisonment if:
1. The defendant intends to confine the plaintiff within a limited area;
2. The defendant’s conduct caused the plaintiff’s confinement; and
3. The plaintiff is conscious of that confinement.

Question 6

False Imprisonment Sub Elements

Answer 6

2(a). Moral persuasion is insufficient to establish confinement. There must be a physical element or the threat of injury.
2(b). Confinement can occur as the result of false or improper legal authority.
2(c). It is sufficient if the defendant fails to release the plaintiff from confinement despite owing a duty to do so.
3(a). The test is whether the plaintiff was conscious of the confinement as it was happening.
3(b). A minority of jurisdictions allow recovery if the plaintiff was conscious of the confinement or was harmed by it.
3(c). If there is a reasonable means of escape, there is no confinement.

Question 7

Intentional Infliction of Emotional Distress

Answer 7

A defendant will be liable for IIED if they:
1. Intend to cause extreme and severe emotional distress upon the plaintiff; or or knew with substantial certainty that the plaintiff would suffer emotional distress;
2. With conduct that is extreme and outrageous; and
3. The plaintiff suffered severe and extreme emotional distress.

Question 8

IIED Sub Elements

Answer 8

1(a). It is not the intent to do the act that leads to severe emotional distress, it is intent to cause severe emotional distress upon the plaintiff w/ the act.
1(b). Minority jurisdictions (CA included) require that the conduct be directed at the plaintiff with the plaintiff present.
2(a). Conduct is extreme if it exceeds all possible limits of decency in a civilized society and is especially calculated to inflict severe and emotional distress.
2(b). Mere insults and vulgarities will not suffice.
2(c). The context and manner in which the conduct is directed at the plaintiff is to be considered.
3(a). The emotional distress must be beyond what a reasonable person could endure.

Question 9

Trespass to Land

Answer 9

A defendant is liable for trespass to land if:
1. The defendant commits an intentional act;
2. That causes the physical invasion onto the land of another.

Question 10

Trespass to Land Sub Elements

Answer 10

1(a). The defendant does not have to intend to harm the land.
1(b). The defendant only needs to intend to do the act that leads to the physical invasion onto the land of another.
2(a). Harm is not required.
2(b). Physical invasion can be the airspace above or the subsurface below.
2(c). The invasion can occur when someone fails to remove something from the property after consent or privilege has been withdrawn.

Question 11

Trespass to Chattels

Answer 11

The defendant will be liable for trespass to chattels if:
1. They intend an act that interferes with another’s property;
2. The act interferes with the plaintiff’s right of possession in the property.

Question 12

Trespass to Chattels Sub Elements

Answer 12

1(a). Only intent to do the act is necessary.
1(b). The defendant need not intend to interfere.
2(a). Dispossession is sufficient.
2(b). Impairment as to the property’s condition, quality, or value is sufficient.
2(c). Deprivation of use for a substantial amount of time is sufficient.
2(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, is sufficient.

Question 13

Conversion

Answer 13

Conversion is an:
1. Intentional exercise of dominion or control over a chattel;
2. Which so seriously interferes with the right of another to control it that the actor may be required to pay the other the full value of the chattel.

Question 14

Conversion Sub Elements

Answer 14

1(a). The chattel can be a document if the contents are capable of causing economic damage (literary property, scientific invention, trade secrets, or information held to be sold).

Question 15

Conversion: Factors to Consider

Answer 15

• The context and duration of the actor’s exercise of dominion.
• The actor’s intent to assert a right in fact inconsistent with the other’s right of control.
• The actor’s good faith.
• The extent and duration of the resulting interference with the other’s right of control.
• The harm done to the chattel.
• The inconvenience and expense caused to the other.

Question 16

Actual Consent

Answer 16

A plaintiff consents to the tortious conduct of another if the plaintiff is willing for that conduct to occur. Willingness may be expressed or inferred from the facts and the plaintiff’s conduct. Willingness need not amount to desire.

Question 17

Revocation of Actual Consent

Answer 17

When a plaintiff clearly communicates a revocation of actual consent to the defendant the consent is generally no longer legally effective. An exception exists when it would be unreasonably burdensome for the defendant to comply with the revocation immediately. Consent does not apply retroactively.

Question 18

Implied Consent

Answer 18

A defendant is not liable for tortious intentional conduct if:
1. Under prevailing social norms, the defendant is justified in engaging in the conduct in the absence of the plaintiff’s actual or apparent consent; and
2. The defendant had no reason to believe that the plaintiff would not have actually consented to the conduct if the defendant had requested the plaintiff’s consent.

Question 19

Self-Defense

Answer 19

A defendant has a privilege to use force against the plaintiff for the purpose of defending themselves against the plaintiff’s unprivileged use of force if:
1. The defendant reasonably believes that force is immediately necessary to protect himself against the force, even though there is in fact no necessity.
2. The amount of force is or reasonably appears to be necessary for protection against the threatened force.
- When the threat of force no longer exists, the privilege of self-defense terminates.

Question 20

Self-Defense: Minority vs Majority

Answer 20

Minority: Before using deadly force in self-defense, the defendant must attempt to reasonably retreat except when in their home.
Majority: No need to retreat. A defendant can use deadly force if they reasonably believe deadly force is immediately necessary to protect against threat of death or great injury.

Question 21

Defense of Property

Answer 21

The privilege to defend property is limited to the use of force reasonably necessary to the situation as it appears to the defendant to defend against an unlawful intrusion.
- The intrusion must be unlawful.
- The privilege to defend against deadly self-defense is only allowed when the intruder threatens the personal safety of the defendant or his family.

Question 22

Shopkeeper’s Privilege

Answer 22

A store or its agent will have a privilege to detain a plaintiff if:
1. They have reasonable grounds to believe the plaintiff engaged in a theft of the defendant’s store;
2. They detain the plaintiff in a reasonable manner; and
3. They detain the plaintiff for a reasonable amount of time.

Question 23

Shopkeeper’s Privilege Sub Elements

Answer 23

2(a). The defendant must only use force which is reasonable under the circumstances.
2(b). Only non-deadly force can be used.
2(c). The detention can take place in the immediate vicinity of the store.
3(a). A reasonable amount of time is that which is reasonably necessary to determine if a theft occurred under the circumstances.

Question 24

Recapture of Chattels

Answer 24

Where another’s possession began lawfully, one may use only peaceful means to recover the chattel. Force may be used to recapture a chattel only when in “hot pursuit” of one who has obtained possession wrongfully.
- A demand to return the chattel must precede the use of of force, unless the circumstances make it clear that the demand would be futile or dangerous.
- Only reasonable force may be used, not force sufficient to cause death or serious bodily injury.

Question 25

Necessity

Answer 25

A person may interfere with the real or personal property of another when:
1. It is reasonably and apparently necessary in an emergency;
2. To avoid injury from a natural or other force; and
3. When the threatened injury is substantially more serious than the invasion is undertaken to avoid it.

Question 26

Public Necessity

Answer 26

A defendant can raise public necessity as a defense if they acted to avert an “imminent public disaster.” Absent legislation, there is no right of recovery.

Question 27

Private Necessity

Answer 27

Private necessity can be a defense when the action is to prevent serious harm to a limited number of people. the defendant will still be liable for actual damages caused by the action.

Question 28

Authority of Law

Answer 28

A law enforcement officer acting within the scope of employment is privileged to use force against another to arrest or otherwise confine someone; investigate, terminate, or prevent crime; or otherwise enforce the law. The content and scope of the privilege are determined largely by applicable constitutional law principles and criminal law rules.

Question 29

Discipline

Answer 29

A parent may use reasonable force in disciplining children. Consider factors such as age, sex, condition of the child, the seriousness of the behavior, and the apparent motive behind it. A teacher’s privilege to discipline is more properly predicated on the need to maintain reasonable order within the classroom.

Question 30

Negligence

Answer 30

Negligence is a failure to exercise reasonable care that breached the duty to prevent risk to others and causes harm resulting in damages.

Question 31

Elements for a Cause of Action in Negligence

Answer 31

1. Duty
2. Breach
3. Causation
4. Damages

Question 32

Duty

Answer 32

The defendant owed a duty to use reasonable care. This is an obligation recognized by the law, requiring the actor to conform to a certain standard of conduct for the protection of others against unreasonable risk of harm.

Question 33

Breach

Answer 33

The defendant failed to conform to the required standard.

Question 34

Causation

Answer 34

There was a reasonably close causal connection between the defendant’s conduct and the resulting injury. A defendant must be both the “proximate cause” and the “actual cause.”

Question 35

Damages

Answer 35

The plaintiff must suffer actual loss or damage resulting from the defendant’s conduct. Nominal damages to vindicate a technical right cannot be recovered in a negligence action if no actual damage has occurred.

Question 36

Negligence Per Se

Answer 36

A clearly stated duty imposed by a statute providing for criminal and regulatory penalties may replace the more general duty of prudent, reasonable care if:
1. The plaintiff is within the class of persons sought to be protected by the statute; and
2. The statute was designed to prevent the type of harm suffered by the plaintiff.

Question 37

Direct Evidence

Answer 37

Proves the existence of a fact without the need of an inference.

Question 38

Circumstantial Evidence

Answer 38

Does not directly prove the existence of a fact but allows a fact finder to make a reasonable inference as to the existence of the fact based on the coincidence.

Question 39

Res Ispa Loquitur

Answer 39

In some cases, the very occurrence of an event may allow for an inference to be made by the fact finder that a defendant breached their duty when there is an absence of other direct evidence to establish breach. The doctrine of RIL requires the plaintiff to establish:
1. The accident causing the injury is a type that would not normally occur unless someone was negligent; and
2. The negligence is probably attributable to the defendant.
- Evidence that the instrumentality causing the injury was in exclusive control of the defendant can establish this element.

Question 40

Joint and Several Liability

Answer 40

Each tortfeasor can be sued jointly with others for the amount of the plaintiff’s loss and each is also individually liable for the full amount of the plaintiff’s damages. The plaintiff can collect from any one of them or any group of them up to the full amount of the plaintiff’s damages as determined by the trier of fact.

Question 41

J&SL Scenarios

Answer 41

• When tortfeasors act in concert.
• When tortfeasors fail to perform a common duty to the plaintiff.
• When tortfeasors act independently to perform an indivisible harm.

Question 42

Negligent Infliction of Emotional Distress

Answer 42

A duty to avoid NIED may be breached when the defendant creates a foreseeable risk of injury to the plaintiff. The plaintiff usually must satisfy two requirements:
1. The plaintiff must be within the “zone of danger,” and
2. The plaintiff must suffer physical symptoms from the distress.

Question 43

NIED Sub Elements

Answer 43

1(a). A plaintiff must usually show that their distress has been caused by the threat of physical impact.
2(a). The majority rule requires that the defendant’s conduct causes the plaintiff emotional distress that manifests in physical symptoms.
- A bystander not in the zone of danger seeing injury to another cannot recover damages unless they are closely related to the person injured.
- A special relationship can suffice.

Question 44

Landowner’s Duty of Care

Answer 44

1. Trespassers
2. Licensees
3. Invitees

Question 45

Trespassers

Answer 45

The duty of a landowner to protect against harm to others also exists in locations where the public might not lawfully meet the property but where the landowner knows or should reasonably know trespassers might meet the property.

Question 46

Licensees

Answer 46

A social guest is considered a licensee and has been defined as one who enters the premises of the landowner by permission but for the licensee’s own purpose. A person who goes on another’s property for companionship, diversion, or entertainment. A licensee must take the premises of the host as he finds them. the owner of the premises has a duty to warn the licensee of hidden dangers unknown that he has knowledge of and to refrain from injuring his guest willfully or wantonly.

Question 47

Invitees

Answer 47

In order for a person to be classified as an invitee it is sufficient that he go on the land in furtherance of the owner’s business. the owner of the premises has a duty to exercise reasonable care in keeping the premises reasonably safe for use by the invitee. There is a higher duty of care to an invitee than to a licensee.

Question 48

Damages

Answer 48

• A plaintiff in a negligence case must suffer actual harm.
• Compensatory damages are meant to compensate the plaintiff for the harm caused.
• Nominal damages meant to acknowledge a right are not available in a negligence claim.
• Punitive damages meant to punish a defendant and deter conduct is only available in negligence cases where the defendant’s conduct is particularly egregious.

Question 49

Collateral Source Rule

Answer 49

Prevents a plaintiff from receiving compensation for damages that have already been paid by a third party.

Question 50

Defenses

Answer 50

1. Last Clear Chance
2. Contributory Negligence
3. Comparative Negligence
4. Assumption of the Risk

Question 51

Last Clear Chance

Answer 51

If a defendant has the last clear chance to avoid injury and could have reasonably avoided it, they are negligent.

Question 52

Contributory Negligence

Answer 52

A. In contributory negligence (minority) a plaintiff may not recover if they contribute in any way to their own negligence.
B. Joint tortfeasors remain jointly and severally liable for the whole amount of damages to a plaintiff.
C. The defendant cannot claim the plaintiff was contributorily negligent if the defendant had the last clear chance to avoid the accident.

Question 53

Comparative Negligence

Answer 53

A. In comparative negligence jurisdictions (majority) a plaintiff’s recovery will be reduced by their own proportional share of responsibility for their injury.
B. Joint tortfeasors in comparative negligence jurisdictions can defend against paying the entire amount of damages by reducing the amount they pay by the percentage of the plaintiff’s own negligence and/or the percentage of the negligence of the other joint tortfeasors.

Question 54

Comparative Negligence (Pure)

Answer 54

A plaintiff’s recovery will be reduced by their own percentage of responsibility regardless of what that percentage is.

Question 55

Comparative Negligence (Modified)

Answer 55

A plaintiff will only be able to recover if their negligence is not more than the defendant’s.

Question 56

Assumption of the Risk

Answer 56

A person assumes the risk of injury when the person:
1. Has actual or constructive knowledge of the risk;
2. Appreciates its dangerous character; and
3. Voluntarily accepts the risk with time, knowledge, and experience to make an intelligent choice.