Torts MC

Question 1

Conversion damages

Answer 1

The defendant is liable for the fair market value of the chattel at the time of the conversion.

Question 1

Conversion (def)

Answer 1

A defendant who has permission to use the plaintiff’s chattel commits conversion when he/she (1) intentionally uses the chattel in a way that exceeds the scope of permission AND (2) seriously violates the plaintiff’s right to control the chattel.

Question 2

intentional infliction of emotional distress

Answer 2

A defendant is liable for intentional infliction of emotional distress (IIED) when the defendant, by extreme and outrageous conduct, intentionally or recklessly causes the plaintiff severe emotional distress.

Conduct is considered extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society.

Question 3

Special relationships

imposing duty to protect others

Answer 3

Mnemonic: Please Help Eliminate Safety Concerns Causing Injuries

Parent/child
Hospital/patient
Employer/employees
Shopkeeper/business invitees
Common carrier/passengers
Custodian/person in custody
Innkeeper/guests

Question 4

innkeepers owe what kind of duty to customers?

Answer 4

in most jurisdictions today, innkeepers only owe a duty to use ordinary care to protect their guests while they are on the premises.

Question 5

To determine whether a defendant has used ordinary care, the trier of fact may consider

Answer 5

all relevant factors—including compliance with community or industry custom.

But compliance with (or deviation from) custom is not conclusive on the issue of negligence.

Question 6

Common carrier duty (maj, min)

Answer 6

Under the common-law approach to common-carrier liability, common carriers owe the highest duty of care to their passengers and can be liable for slight negligence.

Under the modern approach, common carriers only owe a duty to use reasonable care to protect passengers from harm that arises within the scope of that relationship.

Question 7

Res ipsa loquitur

Answer 7

Trad approach (maj)
- Plaintiff’s harm would not normally occur unless someone was negligent
- Defendant had exclusive control, or was responsible for all others who had control, over thing that caused harm and
- Plaintiff did nothing to cause harm (vast majority of comparative fault jurisdictions loosely apply the third requirement—that the harm not be due to the plaintiff’s own actions—since contributory negligence is no longer a total bar to recovery.)

Third Restatement (minority view)
- Accident that caused plaintiff’s harm is type that ordinarily happens due to negligence of class of actors
- Defendant is relevant member of that class

*The modern trend among many courts is to ignore the exclusivity requirement when applying the traditional standard for res ipsa loquitur in negligence actions that involve products liability or medical malpractice.

Question 8

default rule - contributory neg or comparative fault?

Answer 8

comparative fault is default on MBE

Question 9

“Last clear chance” doctrine

Answer 9

In contributory-negligence jurisdictions (NOT COMPARATIVE F), plaintiff may mitigate legal consequence of contributory negligence if defendant had last clear chance to avoid injuring plaintiff but failed to do so.

1. Helpless P
   - Plaintiff, due to contributory negligence, is in peril from which plaintiff cannot escape
   - Defendant is liable if defendant knew or should have known of plaintiff’s peril & harm could have been avoided but for defendant’s negligence
2. Inattentive P
   - Plaintiff, due to contributory negligence, is in peril from which plaintiff could escape if plaintiff was paying attention
   - Defendant is liable if defendant had actual knowledge of plaintiff’s inattention

Question 10

Ds for strict product liability claims

Answer 10

Strict products liability claims can be brought against commercial suppliers or sellers—i.e., those in the business of manufacturing, selling, or otherwise distributing products of the type that harmed the plaintiff.

NOT service providers

Question 11

Any commercial seller in the distribution chain—e.g., manufacturer, distributor, retailer—is subject to strict products liability if

Answer 11

(1) the commercial seller’s product was defective when it left the commercial seller’s control and (2) that defect caused the plaintiff harm.

Strict liability is imposed even if the commercial seller did not create or know about that defect.

Question 12

Assumption of the risk

Answer 12

voluntary exposure to known risk of harm

Question 13

Scope of defendant’s duty of care

Answer 13

Cardozo view (majority rule): Duty owed only to persons who might be foreseeably harmed as a result of defendant’s negligence (ie, persons within zone of foreseeable harm)

Andrews view (minority rule):
Duty owed to everyone on earth if anyone might be foreseeably harmed as a result of defendant’s negligence

Question 14

D’s liability for wild animal

Answer 14

A defendant is strictly liable for harm that (1) is caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal or (2) directly results from the wild animal’s abnormally dangerous characteristics

Question 15

Wild animal (def)

Answer 15

An animal is wild if it is not by custom devoted to the service of humankind in the place where it is being kept

An animal is wild if it belongs to a category of animals that have not been generally domesticated in the United States and are likely to cause personal injury unless restrained. This is true even if the wild animal has been tamed for many years.

Question 16

Several liability - what recovered

Answer 16

when multiple defendants cause the plaintiff indivisible harm, the plaintiff can only recover from each defendant the portion of damages that corresponds to that defendant’s proportionate share of fault

Question 17

Joint & several liability - what recovered

Answer 17

Any tortfeasor can be held liable for plaintiff’s total amount of damages

Tortfeasors can sue each other for contribution

Question 18

mbe default liability

Answer 18

Joint & several liability

Question 19

partial comparative negligence

Answer 19

Modified (or partial) comparative negligence –

maj: when the plaintiff’s own negligence contributes to his/her harm, the plaintiff’s recovery is reduced by his/her proportionate share of fault and is barred if the plaintiff’s fault exceeds 50%

min: in a small minority of these jurisdictions, a plaintiff recovers nothing when the plaintiff and defendant are equally at fault.

Question 20

Duty to trespasser

Answer 20

Trad approach (50%)
- land possessors owe no duty to unknown or unanticipated trespassers.
- But they do owe a limited duty to known or anticipated trespassers to:
…. warn the trespasser of hidden, artificial (i.e., man-made) conditions that are known to the land possessor but unlikely to be discovered by the trespasser and
…. use reasonable care while conducting activities on their land.

Modern approach: land possessors owe a duty of reasonable care to all land entrants (except flagrant trespassers).

Question 21

Liability for private nuisance arises when

Answer 21

a defendant’s interference with the use and enjoyment of the plaintiff’s property is both substantial and unreasonable

Question 22

substantial (nuisance)

Answer 22

offensive, annoying, or intolerable to a normal person in the community

Question 23

unreasonable interference (nuisance)

Answer 23

effectively renders the land unavailable for ordinary use or enjoyment by the possessor and satisfies certain criteria:
- Per se nuisance
- Conduct unsuited to location
- Avoidable harm
- Severe harm
- Malicious conduct

PUASM
Peeps up and smacked mushrooms

courts will also balance interference with utility of the nuisance

Question 24

Conduct unsuited to location

Answer 24

(Unreasonable interference for private nuisance)

Defendant’s conduct is unsuited to location

and

Plaintiff’s use & enjoyment of property are suited to location

Question 25

Avoidable harm

Answer 25

Defendant’s failure to exercise reasonable care regarding risk of harm caused interference

Question 26

Severe harm

Answer 26

(Unreasonable interference for private nuisance)

Plaintiff’s land or fixtures sustained physical damage

Question 27

Malicious conduct

Answer 27

(Unreasonable interference for private nuisance)

Defendant’s activity or condition created by defendant is motivated entirely or almost entirely by malice

Question 28

strict liability will be imposed for owner of a domestic animal if:

Answer 28

the owner knew or had reason to know about the domestic animal’s dangerous propensities (i.e., behavior uncommon for its species)

and

the plaintiff’s harm arose from those dangerous propensities.

Question 29

Intentional infliction of emotional distress of third party - elements

Answer 29

The plaintiff contemporaneously perceived (i.e., saw or overheard) the defendant’s conduct.

The plaintiff was a close relative (i.e., immediate family member) of the harmed third party.

The defendant knew that the plaintiff was present and closely related to the harmed third party.

Question 30

MBE default rule for contributory or comparative neg

Answer 30

Pure comparative fault

Question 31

Under the majority rule, a duty of care is owed to…

Answer 31

persons who might be foreseeably harmed by the defendant’s negligent conduct.

Cardozo

Question 32

Negligent infliction of emotional distress (NIED) theories of recovery

Answer 32

(1) zone of danger, (2) bystander, and (3) special situation

Most jx require some physical manifestation of distress for (1) and (2)

Question 33

zone-of-danger theory arises when:

Answer 33

the defendant’s negligent conduct placed the plaintiff in danger of immediate bodily harm

and

that danger caused the plaintiff serious emotional distress.

Question 34

bystander recovery - NIED

Answer 34

• Closely related to person injured by D
• Present at scene of injury;
• Personally observed the injury

(relational, geographic, temporal proximity required)

Question 35

Special situations - NIED

Answer 35

Negligent mishandling of a corpse

Negligent medical info (eg negligent misdiagnosis of terminal illness)

Erroneous announcement of death (eg common carrier mistakenly reporting the death of a relative)

contaminated food with a repulsive foreign object?

A physical manifestation of emotional distress is not required in all of the special-situations

Question 36

Proximate cause (def)

Answer 36

aka legal cause

the plaintiff’s harm was a reasonably foreseeable consequence of the defendant’s conduct, meaning that the conduct was of a type that generally increases the risk of that harm

Question 37

the plaintiff’s harm was a reasonably foreseeable consequence of the defendant’s conduct, meaning that the conduct was of a type that generally increases the risk of that harm

Answer 37

the product poses a foreseeable risk of harm that is not obvious to an ordinary user

and

reasonable instructions or warnings by the commercial supplier could have reduced that risk.

Question 38

the learned-intermediary rule

Answer 38

a manufacturer of a prescription drug or medical device will not be held strictly liable for inadequate warnings or instructions if the manufacturer warned the prescribing physician about the risk of harm associated with that product.

Question 39

False imprisonment occurs when:

Answer 39

defendant intends to confine plaintiff within limited area

defendant’s conduct causes such confinement or defendant fails to release plaintiff from confinement despite owing duty to do so and

plaintiff is conscious of confinement OR, in minority jurisdictions & under Third Restatement, plaintiff was harmed by confinement

Question 40

merchant’s privilege applies

Answer 40

the defendant is a merchant or a merchant’s employee or agent

the defendant reasonably believes that the plaintiff has wrongfully taken or is attempting to take merchandise from its premises or failed to pay for personal property or services rendered there

detainment occurs on, or in the immediate vicinity of, the merchant’s premises and

detainment is conducted for a reasonable amount of time and in a reasonable manner to investigate the matter, recapture the property, or facilitate the plaintiff’s arrest.

Question 41

Affirmative duty to act

Answer 41

• Assumption of duty
• Creation of risk
• By Statute
• By Contract
• By Authority
• By Relationship
• Land possessor

ACSCARL

Assumption of duty: Defendant who voluntarily aids or rescues another has duty to use reasonable care when rendering aid or performing rescue

Creation of risk: Defendant whose conduct creates foreseeable risk of harm or places another in peril has duty to exercise reasonable care to prevent further harm by rendering care or aid

By statute: Statute imposes obligation to act for another’s protection

By contract: Duty to use care when performing contractual obligations

By authority: Duty to exercise reasonable control over third party whom defendant has actual ability & authority to control. — Examples: parent over child, custodian over person in custody, employer over employee, mental-health professional over patient

By relationship: Duty to protect, aid, or assist plaintiff with whom defendant shares unique relationship — Examples: business proprietor with patron, common carrier with passenger, innkeeper with guest, employer with employee, parent with child

Land possessor: Duty to mitigate risks posed by natural or artificial conditions on land

Question 42

guest statutes

Answer 42

Under these statutes, the only duty that automobile drivers owe to their guests is to refrain from gross or wanton and willful (i.e., reckless) misconduct.

Question 43

a driver’s duty of care to passengers

Answer 43

a duty to exercise ordinary care (in most jx). exception example: guest statutes

Question 44

attractive-nuisance doctrine

Answer 44

(liab for neg) land possessors have a duty to exercise reasonable care to protect child trespassers from artificial (i.e., man-made) conditions on their land when:
- children
- unreasonable risk
- age can’t appreciate
- risk > utility and burden

the condition exists where the land possessor knows or should know that children are likely to trespass

the land possessor knows or should know that the condition poses an unreasonable risk of serious bodily harm or death to children

children of the trespasser’s age cannot reasonably discover or appreciate the risk and

the risk outweighs the condition’s utility and the burden of eliminating the risk.

Question 45

the commercial supplier of a component that is integrated into a defective product is strictly liable when

Answer 45

the component is defective

or

the supplier substantially participated in the integration of the component into that product’s design and the component’s integration caused the product to be defective.

Question 46

doctrine of negligence per se

Answer 46

the majority approach is that duty and breach can be conclusively presumed if:

the defendant violated a statute or ordinance

that statute or ordinance was intended to prevent the type of harm suffered by the plaintiff and

the plaintiff is within a class of persons that the statute or ordinance was intended to protect.

[under the minority approach, the violation of a statute or ordinance is merely evidence of negligence that creates a rebuttable presumption that the defendant breached a duty of care.]

Question 47

To recover under a products liability claim, the plaintiff must prove that:

Answer 47

the defective product caused the plaintiff’s injuries when it was used in an intended or reasonably foreseeable way (what matters is whether product was used that way, not whether injury was foreseeable)

and

the defect existed at the time the product left the commercial seller’s control.

Question 48

To prevail on a claim for intentional interference with a contract, a plaintiff must prove that:

Answer 48

a valid contract existed between the plaintiff and a third party

the defendant knew of that contractual relationship

the defendant intentionally and improperly interfered with the contract’s performance

and

that interference caused the plaintiff pecuniary (monetary) loss.

Question 49

a third party _____ rely on a contractual defense in defending against an intentional tort claim.

Answer 49

cannot

Question 50

An employer is generally not liable for an intentional tort (e.g., battery) committed by its employee because that conduct typically falls outside the scope of employment. However, such liability will arise in two instances:

Answer 50

When the use of reasonable force is inherent in the employee’s job and the employee acts in the course of his/her work

When the employee is authorized by the employer to act on its behalf and the employee’s position provides an opportunity to commit an intentional tort

Question 51

Land possessor’s duty to land entrants (modern)

Answer 51

Reasonable care owed to all land entrants regardless of status on land (eg, invitee)

EXCEPT flagrant trespassers.

But, land possessor must:
- not act in intentional, willful, or wanton (ie, tortious) manner that causes physical harm
and
- exercise reasonable care to flagrant trespassers in peril

Question 52

flagrant tresspasser (def)

Answer 52

A flagrant trespasser is one who enters another’s land without permission and whose entry is particularly egregious—e.g., entry that results in commission of a crime.

Question 53

Standards of care for negligence - Adult - when adjusted and when not adjusted?

Answer 53

Standard adjusted for physical disabilities, superior skill & knowledge, involuntary intoxication

Standard not adjusted for mental & emotional disabilities, voluntary intoxication

Question 54

A court should grant a defendant’s motion for a directed verdict if

Answer 54

the plaintiff fails to present legally sufficient evidence to support every element of the claim (duty, breach, causation, damages)—i.e., no reasonable jury could find in the plaintiff’s favor

Question 55

Consent is a defense to

Answer 55

intentional torts (not neg)

Question 56

Failure to make the required disclosure breaches the standard of care owed by a physician to his/her patient and subjects the physician to negligence liability if:

Answer 56

the failure to disclose caused the patient to consent to the treatment or procedure (i.e., the patient would not have done so had the risk been disclosed)

and

the undisclosed risk materialized and caused the patient physical harm.

Question 57

Exceptions for duty to disclose risk of treatment or procedure (as a doc):

Answer 57

• risks commonly known
• patient unconscious or otherwise incapable of giving consent
• patient waived right to info OR
• disclosure threatened patient’s well-being

Question 58

intentional infliction of emotional distress (IIED) under the bystander theory - elements

Answer 58

The defendant engaged in extreme and outrageous conduct that emotionally or physically harmed the plaintiff’s close family member.*

The defendant’s conduct was intentional or reckless (i.e., the defendant knew that the plaintiff was present and closely related to the injured person).

The plaintiff contemporaneously perceived that conduct* and suffered severe emotional distress.

*The plaintiff need not prove these facts if the defendant’s design or purpose was to cause severe emotional distress to the plaintiff?

Question 59

Transferred intent - same tort, diff person - which torts?

Answer 59

Assault, Battery, False Imprisonment

*Transferred intent may apply to IIED if, instead of harming the intended person, the defendant’s extreme and outrageous conduct harms another.

Question 60

Transferred intent - Different tort; same person - which torts?

Answer 60

Assault
Battery

Question 61

Intrusion upon seclusion

Answer 61

Intrusion upon seclusion is an invasion of privacy that occurs when a defendant intentionally intrudes on a plaintiff’s private affairs in a manner that would be highly offensive to a reasonable person—e.g., hacking into an email account, eavesdropping on private convo by electronic device

Unlike the other forms of invasion of privacy, no publication is required to establish liability.

Question 62

Public disclosure of private facts

Answer 62

Publicity given to highly offensive & private matter concerning plaintiff that is not of legitimate public concern & results in damages

Publicized means communicated to the public at large or to so many people that it is substantially certain to become public knowledge

Question 63

factors to determine the amount of compensatory damages the plaintiff can recover in a negligence action:

Answer 63

the initial physical harm caused by the defendant’s negligent act

any subsequent harm (physical, economic, or emotional) that is traceable to that initial harm

and

any steps taken by the plaintiff to mitigate that initial harm.

** the plaintiff’s actions prior to the defendant’s negligent act are not a factor in determining the amount of compensatory damages a plaintiff can recover (e.g. didn’t go to doc right away after injury and doc negligently does surgery)

Question 64

Tort liability of parents

Answer 64

Negligence
-Liable for failure to use reasonable care to prevent minor child from causing foreseeable harm to others (eg, parent fails to warn others about child’s violent tendencies)

Vicarious liability
- child acts as parent’s agent (eg, child trespasses on stranger’s lawn while working for parent’s landscaping company)
- state statute imposes liability on parent
(eg, child vandalizes school or commits school violence)

Question 65

If the plaintiff is a public figure who alleges that his/her emotional distress was caused by the defendant’s publication , then P must also

Answer 65

show that the defendant published a false statement of fact with actual malice—i.e., knowledge of, or reckless disregard for, the falsity of the statement.

Question 66

assumption of the risk is a defense to strict liability claims based on injuries caused by wild or abnormally dangerous domestic animals in what jx

Answer 66

pure comparative-negligence jurisdiction (default rule on the MBE)

Question 67

does IIED require physical injury?

Answer 67

no

Question 68

Extreme and outrageous conduct

Answer 68

Flagrant indecency (secret taping undressing)

Exploiting known & special vulnerability (harm loved pet)

Abusing authority

Repeated harassment

FEAR

Question 69

The privilege to use reasonable force in the defense of third parties exists when the defendant

Answer 69

reasonably believes that:

the circumstances are such that the third party has a privilege of self-defense

and

the defendant’s action is immediately necessary to protect the third party.

Question 70

a defendant can threaten or use deadly force to defend a third party when the defendant

Answer 70

(1) the plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force upon the third party,

(2) the third party is thereby put in peril of death, serious bodily harm, or rape by the use or threat of physical force, and

(3) the defendant can safely prevent the peril only by the immediate use of deadly force

Question 71

Public nuisance

Answer 71

an unreasonable interference with a right common to the general public.

Question 72

public nuisance requires

Answer 72

the defendant interfered with a public right—e.g., affecting the public at large by emitting a noise that disturbs an entire neighborhood and

that interference was unreasonable—i.e., it either (1) significantly affected public health, safety, peace, or property rights or (2) violated an ordinance, statute, or administrative regulation.

Question 73

when a public nuisance suit is brought by a private individual, that individual must also prove

Answer 73

special damage—i.e., harm different from that suffered by the public at large. If the plaintiff does so, then the plaintiff is entitled to injunctive relief and/or monetary damages.

Question 74

A plaintiff who suffers economic damages without any related personal injury or property damage cannot recover in a ______ (cause of action)

Answer 74

negligence action

Question 75

Trespass to chattels occurs when

Answer 75

the defendant intentionally interferes with the plaintiff’s possession of a chattel through dispossession, use, or intermeddling (i.e., causing physical contact).

more minor than conversion

Question 76

Trespass of chattel - prove damages?

Answer 76

Nominal harm is inferred when the interference is through dispossession.

But when the interference is through use or intermeddling, the plaintiff must prove actual damages through one of the following:
- actual harm to the chattel (i.e., impairment of its physical condition, quality, or value)
- substantial loss of use of the chattel or
- bodily harm to the plaintiff

Question 77

misappropriation of the right to publicity elements

Answer 77

a defendant uses the plaintiff’s identity—i.e., name, likeness, or item closely associated with the plaintiff—without authorization

the defendant obtains a benefit (e.g., employment) from that use and

plaintiff suffers an injury as a result.

Question 78

zone of danger theory

Answer 78

NIED

the defendant’s negligent conduct placed the plaintiff in danger of immediate bodily harm

and

that danger caused the plaintiff serious emotional distress.

Question 79

Intent for battery exists when the defendant

Answer 79

(1) intends to cause contact with the plaintiff’s person, (2) intends to cause contact with a third party but instead causes contact with the plaintiff, or (3) intends to commit an assault and instead commits a battery.

Question 80

Rescue doctrine

Answer 80

Rescuers can recover for injuries sustained while attempting to rescue another if that person’s peril was caused by defendant’s negligence

EXCEPTION (firefighter’s rule): Professional rescuers cannot recover for injuries attributable to special dangers of their job—eg:
- firefighter entering burning building
- police officer arresting suspect
- paramedic/lifeguard attempting risky rescue

Question 81

Non-delegable duties

Answer 81

A person who hires an independent contractor is vicariously liable for certain conduct, including:

• Abnormally dangerous activities—an activity is abnormally dangerous if (i) the activity creates a foreseeable and highly signi cant risk of physical harm even when reasonable care is exercised by all actors, and (ii) the activity is not one of common usage;
• Inherently dangerous activities—anactivityisinherentlydangerouswhen,ifreasonablecareisnotexercised,theresultingriskdi ersfrom the types of risk usual in the community;
• Duties arising out of a relationship with a speci fic plaintiff or the public (e.g.,common carrier’s duties owed to passengers, conduct that a ffects the public at large, such as construction work adjacent to a public highway);
• The duty of land occupier to maintain premises in a reasonably safe condition;
• The duty of an employer to maintain a safe work environment for employees; and
• ## In a minority of jurisdictions, the duty to comply with state safety statutes.

From MC:
Maintain safe conditions on premises open to public (eg, store, restaurant)

Safely perform activities that:
- are abnormally or highly dangerous
infringe on private property right (eg, nuisance, trespass)
- are regulated by law or
- are conducted in public place

Question 82

risk-utility test

Answer 82

a product is defective by design when:

the design creates a foreseeable risk of physical harm and

that risk could have been mitigated by a reasonable alternative design (e.g., a modification that reduces the risk for a reasonable cost)

Question 83

To establish a prima facie case of intentional misrepresentation (i.e., fraud or deceit), the plaintiff must show that:

Answer 83

the defendant (i) knowingly or recklessly misrepresented a material fact (ii) with the intent to induce the plaintiff’s reliance

and

the plaintiff (i) reasonably relied on the misrepresentation and (ii) suffered pecuniary loss (i.e., monetary loss) as a result.

Question 84

Special relationships imposing duty to protect others

Answer 84

Parent/child
Hospital/patient
Employer/employees
Shopkeeper/business invitees
Common carrier/passengers
Custodian/person in custody
Innkeeper/guests

Mnemonic: Please Help Eliminate Safety Concerns Causing Injuries

Question 85

But when the defendant’s negligence is so apparent that a lay person could identify, expert testimony _____ required

Answer 85

is not required

Question 86

Under the risk-utility test, a product is defective by design when:

Answer 86

the design creates a foreseeable risk of harm

and

that risk could have been mitigated by a reasonable alternative design (e.g., a modification that reduces the risk for a reasonable cost).

Question 87

Intent requirement for trespass to land

Answer 87

Defendant must either:
- intentionally enter land (or cause a thing or other person to enter land) or
- intentionally remain on land (or cause a thing or other person to remain on land)

The defendant need only have the intent to enter or cause a physical invasion of the land—not the intent to commit a wrongful trespass.

Question 88

trespass (def)

Answer 88

Trespass to land occurs when a defendant intentionally enters—or causes something to enter—another’s land.

Question 89

Assumption of the risk (i.e., the plaintiff’s voluntary acceptance of a known risk of harm) is a defense to negligence. But this defense does not apply when

Answer 89

the defendant’s tortious conduct left the plaintiff with no reasonable alternative but to proceed despite that risk.

Question 90

Liability for animal owner

Answer 90

The owner of an animal—other than a dog or cat—that intrudes upon another’s land is strictly liable for any reasonably foreseeable harm or damage caused by that intrusion

strict liability does not extend to the owner of the land on which the trespassing animals were kept—unless the landowner also had the right to possess the animals.

Question 91

Intrusion by livestock - liability?

Answer 91

strict liability for owner:

Foreseeable intrusion of livestock onto land of another

and

Intrusion causes physical harm typical of livestock (eg, consumption of grass)

Question 92

liability for dogs and cats

Answer 92

owner strictly liable if

dog/cat is abnormally dangerous (known dangerous tendency and phys harm results from that)

or

owner knows or has reason to know that the dog or cat is intruding on another’s property in a way that has a tendency to cause substantial harm.

Question 93

Imposition of strict liability

Answer 93

Abnormally dangerous activities (if P’s harm results from the risk that made the activity abnormally dangerous in the first place)

Intrusion by livestock

Wild animals

Question 94

Under a negligence theory, the plaintiff can recover damages for

Answer 94

personal injury or damage to property. However, a claim for purely economic loss is not allowed.

Question 95

To prevail on a claim for intentional interference with a contract, a plaintiff must prove that:

Answer 95

a valid contract existed between the plaintiff and a third party

the defendant knew of that contractual relationship

the defendant intentionally and improperly interfered with the contract’s performance and

that interference caused the plaintiff pecuniary (monetary) loss.
- A showing of any pecuniary loss is sufficient (need not be significant)

Question 96

Fair-competition privilege is a defense to what

Answer 96

intentional / tortious interference with contract

Question 97

Defendant who intentionally caused third party to (1) decline contractual relationship or (2) terminate existing at-will contract with plaintiff is not liable if:

Answer 97

contract concerned matter in which plaintiff & defendant are competitors

defendant did not use wrongful means

defendant’s actions did not unlawfully restrain trade

and

defendant’s actions were intended to advance its competitive interests

Question 98

inherently dangerous definition and context

Answer 98

context: nondelegable duty

An activity is inherently dangerous when, if reasonable care is not exercised, the resulting risk differs from the type common to the community.

(may be other def)

Question 99

Assault

Answer 99

occurs when:

a defendant intends (1) to cause the plaintiff to anticipate an imminent, and harmful or offensive, contact with the plaintiff’s person or (2) under the doctrine of transferred intent, to commit a battery

and

the defendant’s affirmative conduct causes the [reasonable] plaintiff to anticipate an imminent, and harmful or offensive, contact with the plaintiff’s person.

Question 100

Negligent misrepresentation (def)

Answer 100

is based upon a breach of the duty to supply correct information

Question 101

Negligent misrepresentation elements

Answer 101

The defendant negligently provided false information during the course of his/her business or profession.

The plaintiff justifiably relied upon the false information and suffered pecuniary (i.e., financial) loss as a result.

The plaintiff was in a contractual relationship with the defendant or was a third party known by the defendant as one for whose benefit the information was supplied.*

*a defendant who negligently provides information for a particular purpose is not liable for the plaintiff’s financial loss if the plaintiff used the information for a different purpose.

Question 102

Publicity in a false light elements

Answer 102

The defendant publicized false information that placed the plaintiff in a false light

The false light would be highly offensive to a reasonable person

The publication was made with actual malice—e.g., reckless disregard for its truthfulness.

The plaintiff suffered damages (e.g. individual received lewd and offensive communications from strangers)

Question 103

public disclosure of private facts elements

Answer 103

The defendant publicly disclosed truthful information about the plaintiff’s private life.

The disclosure would be highly offensive to a reasonable person.

The information is not of legitimate public interest.

The plaintiff suffered damages.

Question 104

Rescue doctrine

Answer 104

Rescuer can establish PF negligence case by proving that:
-he/she was injured while attempting to rescue another and
- that person’s peril was caused by the D’s failure to use reasonable care (negligence)

Next, if P engaged in assumption of risk (knew rescue was dangerous and could have proceeded in reasonable alt. manner) or contributory/comparative negligence (acted unreasonably during rescue attempt)…. (CL: recovery barred) (modern: P’s recovery reduced).

Question 105

strict products liability applies to

Answer 105

commercial suppliers (manufacture, distribute, or sell products as part of their business) - not casual sellers or service provider

Question 106

products liability causes of action against types of defendants

Answer 106

commercial seller - strict products liability, negligence, misrep, intentional tort

Noncommercial seller - Neg, Misrep, Intentional Tort

Service provider (eg doc or dentist) - no products liability

Question 107

Slander

Answer 107

is defamation through speech, gesture, or any form that isn’t libel.

P must prove all:
- D knowingly made false statement about P or negligently failed to determine its falsity;
- Type of statement would tend to harm P’s reputation
- D intentionally or negligently communicated that statement to a third party (should have foreseen it would be heard by 3d party)
- Statement caused P special harm (ie pecuniary/monetary loss)*

*However, no proof harm is req when slander per se, accusing P of:
- serious crime (theft, murder, rape)
- adversely affects P’s occupation
- serious sex misconduct (eg infidelity)
- having loathsome disease (eg STD)

Question 108

Standards of care for negligence

Answer 108

Adult: ordinary, reasonable adult in similar circumstances
- adjusted for physical disabilities, superior skill & knowledge, involuntary intoxication
- standard NOT adjusted for mental & emotional disability, voluntary intoxication

Professional: must demonstrate same knowledge, skill, care as another professional in similar community (National standard for medical specialists)

Child: must act same manner as reasonable child of same age, intelligence, and experience (BUT adult standard for dangerous adult activity; children under 5 incapable of negligence)

Question 109

An interference arising from a national condition on land - is it a nuisance?

Answer 109

An interference arising from a national condition on land is generally not a nuisance (eg encroaching trees or plants).

However, a D is subject to nuisance liability for natural condition on land that creates a risk of imminent danger to the P or P’s property when: (i) risk of harm is obvious or known to D; (ii) D fails to take reasonable steps to eliminate risk; and (iii) the natural condition causes a substantial and unreasonable interference with P’s use and enjoyment of land