Torts MEE

Question 1

Assault

Answer 1

An intentional act by D creating P’s reasonable apprehension of immediate harmful or offensive contact to P’s person + causation

Question 2

Battery

Answer 2

An intentional harmful (pain or injury) or offensive (reasonable person) contact to P’s person by D

Question 3

False Imprisonment

Answer 3

An act or failure to act by D resulting in P’s restraint or confinement to a bounded area

Question 4

Shopkeeper’s privilege

Answer 4

a store may detain a suspected thief if:

1. Store has reasonable cause to believe a theft occurred;
2. Store detains suspect for only a reasonable period and for purposes of investigation; and
3. Detention is reasonable

Question 5

IIED

Answer 5

Extreme and outrageous conduct by D causing P’s severe emotional distress

Intent or recklessness

Question 6

IIED - extreme and outrageous conduct

Answer 6

Conduct that exceeds the bounds of decency in society (not insults by themselves)

Question 7

IIED - when is non-outrageous conduct actionable?

Answer 7

• D targets P’s known sensitivity or weakness,
• D’s conduct is continuous or repetitive,
• D targets a P who is a member of a “fragile” class (e.g., elderly, children, pregnant women), or
• D is a common carrier or innkeeper

Question 8

IIED - bystander claims

Answer 8

A bystander (D must know) closely related (D must know) to a person physically injured or killed by D’s conduct may recover for emotional distress

Question 9

Defenses to intentional torts

Answer 9

POPCANS

Privilege, defense of Others, defense of Property, Consent, Authority, Necessity, Self-defense

Question 10

Negligence - Duty of care

Answer 10

D owes a duty of care—to behave like a reasonably prudent person— to all foreseeable plaintiffs in the zone of danger

Question 11

Who is the reasonably prudent person?

Answer 11

someone with D’s physical characteristics, but with the knowledge and mental capacity of an ordinary person

Question 12

Who has a specialized standard of care?

Answer 12

CLIIPS

C - children
L - land owners/occupiers 
I - innkeepers/common carriers 
I - industry custom/standard
P - professionals
S - statutory standards of care

Question 13

Child standard of care

Answer 13

held to the standard of care of a like child of similar age, education, intelligence, and experience (subjective test)

*Generally, young children (i.e., under 6-7) lack capacity to be held negligent

Question 14

Adult activities exception

Answer 14

children engaged in adult activities must conform to an adult standard of care in that activity

Question 15

Common carriers/inkeepers standard of care

Answer 15

held to an “utmost care” standard (liable for even slight negligence to passengers or guests)

*modern trend is to hold innkeepers to ordinary negligence

Question 16

Custom/usage in an industry standard of care

Answer 16

can be used to establish a standard of care, but failure to adhere does not automatically give rise to a breach of duty

Question 17

Professionals standard of care

Answer 17

Expected to act with the care of an average member of the profession in good standing in similar communities

• Medical specialists held to national standard
• Medical professionals only have a duty that extends to patients

Question 18

Negligence per se

Answer 18

Statute replaces typical standard of care:

1. Statute provides a criminal penalty;
2. Standard of conduct is clearly defined in the statute;
3. P is within the class of people statute is designed to protect; and
4. Statute is designed to protect against the type of harm P suffered

violation of the statute means P must only prove causation, not breach of duty

Question 19

Duty to anticipated trespassers

Answer 19

where owner has reason to believe of trespassers on her land

• Activities — owner has duty of reasonable care in carrying out activities on her property
• Dangerous conditions — owner has duty to make safe or warn of any known, concealed, man-made hazards

Question 20

What are the elements for attractive nuisance?

Answer 20

Owner must take reasonable care to eliminate dangers on her property or protect children from those dangers if:

KiDs CAR

• Knows or should know
• Dangerous condition
• Children frequent
• due to Age will not appreciate the danger
• Remedy costs lesser than the risk

Question 21

What are the different types of intentional torts?

Answer 21

FITCAB

• False Imprisonment
• Intentional Infliction of Emotional Distress
• Trespass
• Chattels trespass-conversion
• Assault
• Battery

Question 22

What is an abnormally dangerous activity?

Answer 22

SURP

• Serious risk of harm
• Uncommon in area
• cannot be Performed without Risk

Question 23

Who is an licensee?

Answer 23

one who enters land with owner’s permission for his own purpose or business (i.e., not for landowner’s benefit)

E.g., relatives, friends, social guests

Question 24

Who is an invitee?

Answer 24

one who enters land held open to the public or who enters with owner’s permission to confer a commercial benefit

E.g., store patron, concert-goer

Question 25

Duty of care for activities carried out on property (licensee/invitee)

Answer 25

reasonable care

Question 26

Duty of care for known dangerous conditions (licensee/invitee)

Answer 26

duty to warn or make safe

Question 27

Duty to inspect (invitee only)

Answer 27

owners have duty to conduct a reasonable inspection for non-obvious dangers and make them safe

Question 28

When does a breach occur?

Answer 28

when his conduct falls short of the standard of care owed under the circumstances

Question 29

What is res ipsa loquitur?

Answer 29

the very occurrence of the accident causing P’s injuries suggests negligent conduct

Question 30

What must P prove for res ipsa loquitur?

Answer 30

TIP:

• Type of accident does not occur w/o neg.
• Instrumentality in D’s control
• P is not contributory neg.

Question 31

Substantial factor test for causation

Answer 31

for multiple causes of P’s injury

D’s breach is the actual cause if it was a substantial factor in bringing about P’s injury

Question 32

Burden shifting test for causation

Answer 32

Application — used if multiple Ds act (often simultaneously), only one causes P’s injury, but it’s unclear which D caused the injury. Burden of proving actual cause shifts to Ds

Question 33

Proximate cause

Answer 33

Ask: Is it fair under law o hold D responsible for P’s injuries? About foreseeability. Question of fact.

Question 34

Intervening cause

Answer 34

Apply when looking at proximate cause

intervening forces that occur after D’s conduct to cause P’s injuries will not cut off D’s liability if they are foreseeable

Question 35

Quick damages rules

Answer 35

1. P must prove damages
2. Nominal damages never available
3. Personal injury - D compensates P for all damages (past, present, and future - economic and non)
4. Punitive damages - only recoverable if D’s conduct is wanton and willful, reckless, or malicious (normally not awarded in negligence)
5. Never recoverable - atty’s fees, interest from date of damage in personal injury

Question 36

Assumption of the risk requirements

Answer 36

D must show:

1. P knew or should have known the risk (objective standard); and
2. P voluntarily proceeded in the face of that risk

Question 37

NIED

Answer 37

1. D’s negligence results in a close risk of bodily harm to P
2. P must be in “zone of danger” to recover
   I.e., D’s act must have nearly caused physical harm to P
3. D’s negligence results in P’s severe emotional distress
4. P exhibits some physical manifestation attributable to her emotional distress (court split here)

Question 38

NIED - bystander claims

Answer 38

P and the injured person are closely related;
P was present at the scene of the injury; and
P personally observed or perceived the event

Question 39

Defenses to strict liability

Answer 39

Assumption of the risk

Comparative negligence