Torts Moore 2020

Question 1

Define Tort

Answer 1

tort is a civil wrong, other than a breach of contract, for which the law provides a remedy

Question 2

2 Forms of Actions Torts take?

Answer 2

2 forms of action-

1. Trespass: doing something to hurt or offend someone (direct and forcible injuries)
2. Trespass on the Case/Action on the Case: modern tort and contract law developed. Action on the case for negligence “required proof” (indirect, for tangible injuries to person or property)

Question 3

General Intent

Answer 3

Setting in motion a chain of events knowing with substantial certainty/ high degree of probability the outcome that was likely to occur

Question 4

Specific Intent

Answer 4

the defendant acts with specific intent if the defendant acts with a purpose or desire to produce the consequences

Question 5

Transferred Intent

Answer 5

transferred intent arises when defendant intends to commit one tort, but instead commits another

Question 6

The Intentional Torts

Answer 6

Assault
Battery
Conversion
False imprisonment
Trespass to land
Trespass to chattels (personal property)
Intentional infliction of emotional distress

Question 7

Single Intent

Answer 7

There was intent to touch

Question 8

Dual Intent

Answer 8

There was intent to touch and harm

Question 9

Ordinary Care

Answer 9

Kind and degree of care, which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger

Question 10

Strict Liability

Answer 10

Defects in “their” wares cause injury

Question 11

Absolute Liability

Answer 11

You have caused harm, person to person
3 Bases of Tort Liability:
Intentional Conduct
Negligent Conduct 
Conduct

Question 12

Act

Answer 12

external manifestation of the actor’s will and does not include any of its results, even the most direct, immediate, and intended

Question 13

Voluntary Act

Answer 13

done of one’s own free will without outside influences

Question 14

Assault

Answer 14

Assault arises when one voluntarily acts with an intent to place another in apprehension of imminent bodily contact as such apprehension results where one has the apparent ability to carry it out, absent privilege.

Apprehension- a seizing of the mind.

Actual ability- defendant has the ability to do something.

Apparent ability- defendant has the ability to carry out action but does not accomplish the action.

Question 15

Battery

Answer 15

Battery arises when one voluntarily acts with the intent to cause harmful or offensive touching of another, whether directly or indirectly, or imminent apprehension of such contact, and such contact results, absent privilege

Question 16

Elements of Battery:

Answer 16

1) an intentional act done to cause a harmful or offensive contact or an apprehension of such contact to another person
2) without valid consent
3) without privilege

Question 17

Offensive Battery

Answer 17

touching element of battery can be accomplished by touching something so intimately connected with a person so as to be deemed to be part of that person it accomplishes the first rule element

Question 18

False Imprisonment

Answer 18

arises when one voluntarily acts with the intent to restrain and does restrain another to a bounded area by force or threat of force, where one is aware of the confinement or harmed by the confinement absent privilege

Question 19

Intentional infliction of Emotional Distress:

Answer 19

one is liable for intentional infliction of emotional distress when one voluntary acts intentionally or recklessly by extreme and outrageous conduct that causes another severe emotional distress absent privilege

Question 20

Elements of IIED

Answer 20

1. Defendant’s conduct was intentional or reckless
2. Defendant’s conduct was extreme and outrageous
3. Defendant caused Plaintiff’s emotional distress
4. The emotional distress was severe

Moore’s definition (from pg. 68): in such an extreme degree to go beyond all bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community

Question 21

False Arrest:

Answer 21

when one is taken into custody by a person who claims but does not have proper legal authority to do so

Question 22

Elements of Third Party IIED:

Answer 22

1) must be present at the scene
2) (common law) close family member (restatement) bystander
3) must be aware of presence
4) act with intent to cause severe emotional distress
5) severe emotional distress must result

Question 23

Harmful

Answer 23

that which causes injury to another

Question 24

Offensive

Answer 24

contact an ordinary person would find objectionable

Question 25

Respondent Superior

Answer 25

Vicarious liability/Master Servant Rule An employer is responsible for the acts of its employee if the employee is acting within the scope of employment.

Question 26

Agency Theory ASK MOORE

Answer 26

arises when one uses something other than one’s body to commit a tort

Question 27

Trespass of Land

Answer 27

arises when the defendant voluntarily acts with the intent to access the land in possession of another and such entry results, absent privilege

Question 28

Trespass of Land

Answer 28

Arises when the defendant voluntarily acts with the intent to access the land in possession of another and such entry results, absent privilege

Question 29

License:

Answer 29

Permission to do something on the land of another and without that permission the act would be unlawful

Question 30

Exclusive Possession

Answer 30

How we can treat land and allow for the right of recovery

Question 31

Nuisance

Answer 31

Intentional substantial unreasonable interference with another’s use and enjoyment of land, including immaterial effects, vapor smells garbage heaps etc

Question 32

Trespass to Chattel

Answer 32

One who uses or otherwise intentionally intermeddles with a chattel which is in possession of another, without consent and absent privilege

Question 33

Elements of Trespass to Chattel

Answer 33

1. Defendant dispossessed Plaintiff of the chattel
2. The chattel is impaired in its condition, quality, or value
3. Possessor is deprived of the use of the chattel for a substantial period of time
4. Bodily harm is caused to the possessor or to some person/thing to which possessor has a legally protected interest

Question 34

Continuing Trespass

Answer 34

arises when one, having consent to do so, places a thing on property in possession of another and fails to remove it after consent has terminated, or regardless of possessor’s consent, one has privilege to place a thing on possessor’s land but fails to remove it after the privilege terminates.

Question 35

Conversion

Answer 35

When one voluntarily acts 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, absent privilege.
(Conversion does not require physical damage)

Question 36

Factors or Elements of Conversion

Answer 36

Conversion Factors:
🔸I- Intent to assert inconsistent rights
🔸D- Duration/Extent of dominion/control
🔸I- Interference both extent and duration that results
🔸G- Good faith?
🔸H- Harm
🔸I- Inconvenience

Question 37

Manner of Conversion:

Answer 37

🔹Receiving
🔹Acquiring §
🔹Misdelivering

🔹Refusing to surrender
🔹Using
🔹Damaging
🔹Disposing

Question 38

Rule of Commercial Convenience:

Answer 38

Permitted one to receive goods for storage or safekeeping or transportation without inquiring into the title of the person from whom one received the goods.

Question 39

Theft vs. Fraud

Answer 39

In either transaction, there may be an innocent purchaser, but the kind of transaction governs liability.

Question 40

Good faith/Innocent purchaser (GFP) or Bona Fide purchaser (BFP)

Answer 40

is one who
📌Gives good and valuable consideration
📌Takes without notice of competing claim
**Note: Status as a good faith or innocent purchaser will not matter if an innocent party purchases stolen goods.

Question 41

Actual Consent

Answer 41

a person’s subjective willingness to permit the otherwise tortious conduct of an actor

Question 42

Apparent Consent

Answer 42

A person apparently consents to an actor’s otherwise tortious intentional conduct if the actor is justified in engaging in the conduct in the absence of the person’s actual consent, and the actor has no reason to believe that the person would not have actually consented to the conduct if the person had had the opportunity to do so.

Question 43

Implied In Law Consent

Answer 43

An actor is not liable to another person for the actor’s otherwise tortious intentional conduct, even in the absence of the person’s actual consent, if:

(a) a reasonable person would actually consent to the actor’s conduct under the circumstances; (b) the invasion of the person’s interests is de minimis (Of little importance; insignificant.); and
(c) the social benefits of engaging in the conduct without first securing the actual consent of persons affected by that conduct substantially outweigh the de minimis invasion.

Question 44

Negligence

Answer 44

arises when one falls below the standard of care set by law to protect others from unreasonable risk of harm

The omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. (p.155)

Question 45

Negligence elements

Answer 45

1) Duty is based on the standard care, requires one to act
2) Breach is tied to duty, did I fall behind the standard of care
3) Actual Cause (sine qua non) is the gatekeeper
4) Proximate Cause (Legal Cause)
5) Damages (if not enough damages might be nuisance)

Question 46

Risk Utility Test

Answer 46

What are the factors we use to determine if risk outweighs utility? Risk utility factors:

Question 47

Risk Utility Factors:

Answer 47

Character and location of the premises
The purpose for which they are used
The probability of injury
Precautions necessary to prevent injury
Relations such precautions bear to the beneficial use of the premises

Question 48

Learned Hand Theory:

Answer 48

B=burden of taking precautions (Cost)
P=probability that an accident will occur
L=LIABILITY of injury or seriousness of damages
B < L X P = negligence liability

Question 49

if B<p></p>

Answer 49

defendant loses

Question 50

B= or more than P*L,

Answer 50

plaintiff loses

Question 51

Standard of Custom:

Answer 51

1) Is there a custom? (Judge)
2) Is it reasonable? (Jury)
3) Is it reasonable to follow it? (Jury)
4) Is it reasonable to fail to follow it? (Jury)

Question 52

Standard of care

Answer 52

Reasonably prudent person: The person whose conduct is being evaluated is deemed to have the knowledge that the ordinary reasonable person would have.

Question 53

Disability Standard of Care/Emergency

Answer 53

The physical characteristics of the person whose conduct is being evaluated will be considered when applying the reasonableness standard and of their current circumstances

Question 54

Nominal Damages

Answer 54

Are symbolic (often $1 dollar) given when P 
establishes tort liability, but no actual harm occurred or is proven with sufficient certainty. This applies to intentional torts only. It does not apply 
to negligence. 

It indicates D committed the tort.

It may serve to vindicate a right (trespass to land).

With negligence, proof of actual harm is required. Nominal damages are never awarded.

Question 55

Compensatory Damages

Answer 55

damages awarded to a person as compensation, indemnity, or restitution for harm P sustained.

It includes pecuniary loss diminished market value for property loss, replacement costs or rental value to compensate unauthorized use.

Pecuniary loss for personal injury includes medical expenses, lost wages or diminished earning capacity; other economic expenses due to the injury.

Non-pecuniary loss includes pain and suffering and other mental distresses.

Question 56

Punitive Damages

Answer 56

The purpose is to punish or deter particularly egregious conduct. It is not given in all tort cases as the facts don’t support them.

They are discretionary.
Awarded when a tort is committed with malice.

In some cases, part of the award goes to the state (Oregon).

The amount of all damage awards is the subject of legislation.

Example: California limits a noneconomic damage in medical malpractice claims to $250,000; Maryland limits all noneconomic damages to $350,000 in personal injury cases.

Question 57

Lost Wages/Diminished Capacity

Answer 57

__Past and future lost wages

    \_\_Loss of business earnings

    \_\_Impact on earning in the future  e.g., can't work for six months;  thereafter only part-time; cannot earn raises

    \_\_Loss of earning capacity  P is seeking to recover for past and future  impaired earning capacity.  Here we measure the victim's lost potential to earn income because of the injury.

    \_\_P does not have to prove that the victim exploited, or would in the future  exploit, that capacity.

     \_\_P must prove:

        1. Specific ability
        2. Skills
        3. Aptitude for a career path prior to injury
        4. Educational attainment and prior employment history

These are important. For example, P cannot claim impaired capacity to
become a doctor when he had been continuously denied admission to
college.

More difficult for children (infants/youth); limited information must look
to education and performance in school, intelligence, achievements of
other family members.

Vague professional aspirations are not enough.

We can take into account life expectancy prior to injury when she could expect to retire or reduce work because of advanced age or
illness.

Question 58

Pain and suffering include:

Answer 58

a. Mental distress
b. Disfigurement
c. Loss of enjoyment
d. Reduction in life expectancy
* e. P must be conscious to receive award for mental distress for
reduction of life expectancy.

        \_\_If P is unconscious, P cannot be distressed about it.