Torts - Overview

Question 1

Overview

Answer 1

A tort is a civil wrong committed against another. A tort may arise from the defendant’s intentional conduct, negligent conduct, or conduct that creates liability in the absence of fault (strict liability torts). A typical Torts essay question will involve multiple torts committed by and against multiple parties. For each potential tort, first identify the prima facie case elements of the tort and apply the elements to the facts provided. For those torts for which the prima facie case is established, consider any defenses that are supported by the facts. Finally, consider any supplemental rules that may apply, typically involving multiple parties (e.g., vicarious liability and joint tortfeasor rules). A Torts MBE question may test on any of the above issues.

Question 2

INTENTIONAL TORTS - Battery

Answer 2

a. Defined: A harmful or offensive contact with the plaintiff’s person intentionally caused by the defendant
b. “Person” includes things connected to the person
c. Contact is deemed “offensive” if the plaintiff has not expressly or impliedly
consented to it

Question 3

Assault

Answer 3

a. Defined: Intentional creation by the defendant of a reasonable apprehension of immediate harmful or offensive contact to the plaintiff’s person
b. “Apprehension” need not be fear
c. Words alone generally are not enough

Question 4

False Imprisonment

Answer 4

a. Defined: An intentional act or omission by the defendant that causes the plaintiff to be confined or restrained to a bounded area
b. Confinement or restraint includes threats of force, false arrests, and failure to provide a means of escape when under a duty to do so

Question 5

Intentional infliction of emotional distress

Answer 5

a. Defined: Intentional extreme and outrageous conduct by the defendant that causes the plaintiff to suffer severe emotional distress
b. Physical injuries are not required, only severe emotional distress

Question 6

Trespass to land

Answer 6

a. Defined: An intentional act by the defendant that causes a physical invasion of the plaintiff’s real property
b. The defendant need not have intended to commit a trespass, only to do the act of entering onto land

Question 7

Trespass to chattels

Answer 7

a. Defined: An intentional act by the defendant that causes an interference with
the plaintiff’s right of possession in a chattel, resulting in damages
b. The tort typically involves damage to or dispossession of the plaintiff’s chattel
c. The defendant need not have intended to commit a trespass to the chattels,
only to do the act that causes interference with chattel
d. If the damage to the chattel is serious, conversion may be more appropriate

Question 8

Conversion

Answer 8

a. Defined: An intentional act by the defendant that causes a serious interference
with the plaintiff’s right of possession in a chattel
b. The defendant need not have intended a conversion, only to do the act that
constitutes a conversion
c. The interference with the chattel is so serious as to require the defendant to
pay the full value of the chattel (in effect, a forced sale of the chattel)

Question 9

INTENTIONAL TORTS - Considered Transferred Intent

Answer 9

1. Intent will transfer from the intended tort to the committed tort, or from the intended victim to the actual victim
2. Both the tort intended and the tort committed must be battery, assault, false imprisonment, trespass to land, or trespass to chattels

Question 10

INTENTIONAL TORTS - Apply Relevant Defenses

Answer 10

1. Consent
   a. Consent may be either express or implied (apparent or implied by law)
   b. The plaintiff must have capacity to consent and the defendant must not exceed
   the bounds of the consent
2. Self-defense, defense of others, defense of property
   a. The defendant must reasonably believe that a tort is being or about to be committed against himself, a third person, or his property
   b. Only reasonable force may be used
   1) Deadly force is permitted if reasonably believed to be necessary to prevent
   serious bodily injury
   2) Deadly force is never permitted to defend only property
   c. The shopkeeper’s privilege permits the reasonable detention of someone the shopkeeper reasonably believes has shoplifted goods
3. Necessity
   a. A defendant whose property tort was justified by a public necessity has an
   absolute defense
   b. If justified only by a private necessity, the defense is qualified (the defendant
   must pay for any damage caused)
   c. This privilege trumps a property owner’s right to defend his property

Question 11

NEGLIGENCE - Elements of the Prima Facie Case

Answer 11

1. The defendant owes a duty of care to conform to a specific standard of conduct
2. The defendant breached that duty
3. The breach of duty was the actual and proximate cause of the plaintiff’s injury
4. The plaintiff suffered damages to person or property

Question 12

NEGLIGENCE - Standards of Care

Answer 12

1. The general standard of care is a reasonably prudent person under the same or similar circumstances (average mental ability but the same physical characteristics as the defendant if relevant)
2. Professionals must exercise the knowledge and skill of a member of the profession in good standing
3. Children must conform to standard of care of a child of like age, education, intelligence, and experience (except the adult standard applies if the child is engaged in an adult activity)
4. A landowner’s standard of care under traditional rules usually depends on the status of the person injured on the property
   a. Trespassers
   1) The landowner owes no duty to undiscovered trespassers
   2) For discovered and anticipated trespassers, the landowner owes a duty to
   warn of or make safe known highly dangerous artificial conditions if not
   obvious to the trespasser
   b. Licensees
   1) Licensees are those who come onto the land with express or implied permission but for their own purpose (includes social guests)
   2) The landowner’s duty is the same as for discovered trespassers except that it applies to all dangerous artificial and natural conditions
   c. Invitees
   1) Invitees are those entering as members of the public or for a purpose
   connected to the business of the landowner
   2) The landowner’s duty is the same as for licensees but with the additional
   duty to reasonably inspect for dangerous conditions
   d. Note that the ordinary reasonable care standard applies for active operations on the property and for conditions on the land that injure children (the “attractive nuisance” doctrine)
5. A criminal statute may serve to establish a specific standard of care in place of the
   general standard of ordinary care if:
   a. The plaintiff is within the class that the statute was intended to protect
   b. The statute was designed to prevent the type of harm suffered
6. Negligent infliction of emotional distress
   a. General basis of liability: The defendant breaches a duty to the plaintiff by creating
   a risk of physical injury and the plaintiff suffers emotional distress as a result
   1) The plaintiff must be within the “zone of danger” and ordinarily must suffer
   physical symptoms from the distress
   2) Exception: The defendant breaches a duty to a bystander not in the zone of
   danger who (i) is closely related to the injured person, (ii) was present at
   the scene of the injury, and (iii) personally observed or perceived the event
   3) Exception: A relationship exists between the defendant and the plaintiff
   under which the defendant’s negligence has great potential to directly cause emotional distress (e.g., hospital erroneously reports death of plaintiff’s family member)

Question 13

NEGLIGENCE - Breach of Duty

Answer 13

1. Whether the defendant breached the applicable duty of care is a question for the trier of fact
2. Under res ipsa loquitur, the fact that an injury occurred may create an inference that the defendant breached his duty. Three requirements:
   a. The accident causing the injury is a type that would not have occurred absent
   negligence
   b. The negligence is attributable to the defendant (usually because the defendant
   is in exclusive control of the instrumentality causing the injury)
   c. The injury was not attributable to the plaintiff’s own conduct

Question 14

NEGLIGENCE - Causation

Answer 14

1. Actual cause
   a. Usually established by the “but for” test—an act is the actual cause of an injury
   when it would not have occurred but for the act
   b. Merged causes—when two acts bring about an injury and either one alone
   would have sufficed, either of the acts is an actual cause of the injury if it was a
   “substantial factor” in bringing it about
   c. Unascertainable causes—when two acts were negligent but it is not clear which
   was the actual cause of the injury, the burden shifts to each of the negligent
   actors to show that his negligent act was not the actual cause
2. Proximate cause
   a. Limits liability for unforeseeable consequences of the defendant’s actions
   b. The defendant is liable for all harmful results that are the normal incidents of
   and within the increased risk from the defendant’s actions
   c. Indirect cause cases: An intervening force occurs after the defendant’s
   negligent act and combines with it to cause the injury
   1) Foreseeable intervening forces (such as a negligent rescue) do not cut off
   the defendant’s liability for the consequences of his negligent act

Question 15

NEGLIGENCE - Damages

Answer 15

1. The plaintiff must show actual harm or injury to complete the prima facie case
2. The plaintiff can recover economic damages (e.g., medical expenses) and noneconomic damages (e.g., pain and suffering)
3. The extent or severity of the harm need not have been foreseen (the tortfeasor takes his victim as he find him)

Question 16

NEGLIGENCE - Defenses to Negligence

Answer 16

1. Contributory negligence—the standard of care required of a plaintiff to avoid injury is judged using a reasonable person standard
2. Comparative negligence—almost all states have rejected the rule that a plaintiff’s contributory negligence will totally bar her recovery
   a. In a pure comparative negligence state, a negligent plaintiff can recover damages reduced by the percentage of her fault even if she was primarily at fault
   b. In a partial comparative negligence state, a negligent plaintiff can recover reduced damages as long as her fault is not above a certain level (usually 50%); if it is, she is barred from recovering
3. Assumption of risk—arises when the plaintiff is aware of a risk and voluntarily assumes it (either expressly or impliedly)
   a. In comparative negligence states, most implied assumption of risk situations
   are analyzed under comparative negligence rules

Question 17

STRICT LIABILITY - Situations Where Strict Liability Is Imposed

Answer 17

1. On the owner of a wild animal or an abnormally dangerous domestic animal for injuries caused by the animal
2. On one engaged in an abnormally dangerous activity—an activity that creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors

Question 18

STRICT LIABILITY - Extent of Liability

Answer 18

1. The harm must result from the kind of danger that makes the animal or activity abnormally dangerous
2. Many states apply their comparative fault rules to strict liability cases

Question 19

PRODUCTS LIABILITY - General Principles

Answer 19

1. Liability for defective products may be brought under various theories of liability: intent, negligence, strict liability, implied warranties of merchantability and fitness for a particular purpose, and representation theories
2. Liability arises when a commercial supplier supplies a product in a defective
   condition unreasonably dangerous to users
   a. A product has a manufacturing defect when it varies from the other products in the manufacturing process and is dangerous beyond the expectation of the ordinary consumer
   b. A product has a design defect when all products of the line have dangerous characteristics because of mechanical features, packaging, or an information defect when users are given inadequate warnings and instructions, and a less dangerous modification or alternative was economically feasible

Question 20

PRODUCTS LIABILITY - Liability Based on Negligence

Answer 20

1. Standard elements of negligence prima facie case apply (see III.A., supra)
2. Breach of duty is shown by negligent conduct by the defendant that leads to supplying a defective product to the plaintiff

Question 21

PRODUCTS LIABILITY - Liability Based on Strict Liability

Answer 21

1. Liability arises from supplying a defective product even if the defendant exercised due care and was not negligent
   a. Even a retailer who had no opportunity to inspect the product may be liable as a
   commercial supplier
2. The defect must have existed when the product left the defendant’s control

Question 22

NUISANCE - Types of Nuisance Actions

Answer 22

1. A nuisance is a type of harm that may be based on intent, negligence, or strict liability
2. A private nuisance is a substantial, unreasonable interference with another person’s use or enjoyment of her property
3. A public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community

Question 23

NUISANCE - Remedies and Defenses

Answer 23

1. The usual remedy is damages, but injunctive relief may be available for a continuing nuisance
2. One who has just moved onto land adjacent to a nuisance may bring a nuisance action; i.e., “coming to the nuisance” is not a defense

Question 24

GENERAL CONSIDERATIONS - Vicarious Liability

Answer 24

1. The defendant may be vicariously liable for the tort of another based on the relationship between the defendant and the tortfeasor
2. Employer-employee (respondeat superior)—the employer is liable for torts of an employee that occur within the scope of the employment relationship
3. Principal-independent contractor—the general rule is that a principal is not vicariously liable for the torts of an independent contractor, but broad exceptions exist:
   a. The independent contractor is engaged in inherently dangerous activities
   b. The principal’s duty cannot be delegated because of public policy considerations
4. Automobile owner-driver—an automobile owner is not vicariously liable for the
   negligence of the driver unless the state has adopted:
   a. A permissive use statute (imposing liability for the torts of anyone driving with
   permission), or
   b. The family purpose doctrine (imposing liability for the torts of a family member
   driving with permission)
5. Parent-child—a parent is not vicariously liable for a child’s torts at common law (but statutes in many states impose limited liability for the child’s intentional torts)
6. Note that, regardless of whether vicarious liability applies, the defendant can be liable for his own negligence, e.g., negligence in hiring the employee, supervising the child, or entrusting the car to the driver

Question 25

GENERAL CONSIDERATIONS - Multiple Defendants

Answer 25

1. Under the rule of joint and several liability, when two or more tortious acts combine to proximately cause an indivisible injury to the plaintiff, each tortfeasor is jointly and severally liable for the injury
   a. The plaintiff can recover his entire damages from any one of the tortfeasors
   b. Many states have abolished the rule for (i) those tortfeasors less at fault than the plaintiff, or (ii) all tortfeasors for noneconomic damages
2. If joint and several liability applies, contribution allows a tortfeasor who paid more than his share of the damages to recover the excess from other tortfeasors in proportion to their fault

Question 26

GENERAL CONSIDERATIONS - Survival and Wrongful Death

Answer 26

1. Survival statutes preserve a victim’s cause of action after his death, except for torts involving intangible personal interests (e.g., defamation)
2. Wrongful death statutes permit a personal representative or surviving spouse to recover damages from a tortfeasor for loss of the decedent’s support and companionship

Question 27

GENERAL CONSIDERATIONS - Tort Immunities

Answer 27

1. Intra-family tort immunities—the rule that one family member could not sue another in tort for personal injury is abolished in most states, except that children generally cannot sue their parents for their exercise of parental supervision
2. Governmental immunities—governments generally have waived their sovereign immunity from suit for ministerial acts (acts performed at the operational level that do not require the exercise of judgment) but have not waived immunity for discretionary acts (acts taking place at the planning or decisionmaking level)

Question 28

DEFAMATION AND OTHER HARMS TO ECONOMIC AND DIGNITARY INTERESTS - Defamation

Answer 28

1. Apply the common law prima facie case: Defamatory language concerning the plaintiff published to a third person that causes damage to the plaintiff’s reputation a. Damage will be presumed if the defamation is libel (in writing or other
   permanent form) or if it is slander (spoken) within one of the four per se categories (business or profession, loathsome disease, crime of moral turpitude, or unchastity of a woman); otherwise, special (pecuniary) damages must be shown
2. Apply the constitutional rules if the plaintiff is a public official or figure, or if the defamation involves a matter of public concern:
   a. The plaintiff must prove that the statement was false
   b. Public officials or figures must prove “actual malice,” i.e., that the statement
   was made with knowledge of its falsity or reckless disregard of its truth or
   falsity
   c. Private figures suing on a matter of public concern must show (i) at least
   negligence as to truth or falsity, and (ii) actual injury (no presumed damages)
3. Consider any applicable defenses
   a. Truth (when the constitutional requirement of proof of falsity does not apply)
   b. Absolute privilege for statements in judicial, legislative, or executive proceedings
   c. Qualified privilege for matters in the interest of the publisher and/or the recipient (may be lost if the statement is outside the scope of the privilege or made with actual malice)

Question 29

DEFAMATION AND OTHER HARMS TO ECONOMIC AND DIGNITARY INTERESTS - Invasion of Privacy—Four Kinds of Wrongs:

Answer 29

1. Appropriation of the plaintiff’s picture or name
   a. Unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage
   b. Limited to the advertisement or promotion of products or services
2. Intrusion on the plaintiff’s affairs or seclusion
   a. An act of prying or intruding on the plaintiff’s private affairs or seclusion that would be highly offensive to a reasonable person
3. Publication of facts placing the plaintiff in a false light
   a. The publication of facts about the plaintiff putting her in a false light in the public eye in a way that would be highly offensive to a reasonable person
   b. Actual malice must be shown if the publication is in the public interest
4. Public disclosure of private facts about the plaintiff
   a. The public disclosure of private information about the plaintiff such that the disclosure would be highly offensive to a reasonable person
   b. Public disclosure requires publicity, not just publication to a few people
5. Defenses—consent and absolute or qualified privileges

Question 30

DEFAMATION AND OTHER HARMS TO ECONOMIC AND DIGNITARY INTERESTS - Misrepresentation

Answer 30

1. Intentional misrepresentation (fraud)
   a. Defined: Misrepresentation by the defendant with scienter (knowledge of falsity or reckless disregard as to truth/falsity) and intent to induce reliance, causation (actual reliance on misrepresentation), justifiable reliance, and damages
   b. The defendant generally has no duty to disclose material facts but may be liable for active concealment
2. Negligent misrepresentation
   a. Defined: Misrepresentation by the defendant in a business or professional capacity, breach of duty to the plaintiff, causation (actual reliance on
   misrepresentation) , justifiable reliance, and damages
   b. The defendant owes a duty only to those to whom the misrepresentation was directed or those who the defendant knew would rely on it

Question 31

DEFAMATION AND OTHER HARMS TO ECONOMIC AND DIGNITARY INTERESTS - Interference with Business Relations

Answer 31

1. Defined: A valid contractual relationship or business expectancy of the plaintiff and a third party, the defendant’s knowledge of the relationship, intentional interference by the defendant inducing a breach or termination of the relationship, and damages.
2. The defendant’s conduct may be privileged if it is a proper attempt to obtain business or protect the defendant’s interests

Question 32

DEFAMATION AND OTHER HARMS TO ECONOMIC AND DIGNITARY INTERESTS - Malicious Prosecution

Answer 32

1. Defined: Initiating a criminal proceeding against the plaintiff ending in plaintiff’s favor, absence of probable cause for the prosecution, improper purpose (malice), and damages