Torts review

Question 1

Standard elements for IIED

Answer 1

D acted intentionally and recklessly

D engaged in extreme and outrageous conduct

P suffered severe emotional distress

Question 2

IIED when plaintiff is a public figure

Answer 2

D acted intentionally and recklessly

D engaged in extreme and outrageous conduct

P suffered severe emotional distress

D published a false statement of fact with actual malice

Question 3

Negligent misrepresentation

Answer 3

Liability for negligent misrepresentation arises when
- D negligently provides P with false information in a commercial setting
- the P reasonably relies on that information and suffers pecuniary loss

OR
- D negligently provides P with false information under circumstances posing a risk of physical harm
- The P reasonably relies on that information and suffers physical harm

Question 4

When is a principal liable for torts of independent contractor?

Answer 4

Vicarious liability will be imposed when the independent contractor’s work involves a nondelegable duty, which includes abnormally dangerous activities

In these instances, it doesn’t matter whether the principal retained the right to direct and control the independent contractor’s activities.

Blasting is always an abnormally dangerous activity pretty much

Question 5

Battery

Answer 5

A D is liable for battery if the D intended to cause contact with the P’s person and the D’s affirmative conduct caused contact that was harmful or offensive to P

Question 6

Transferred intent with battery

Answer 6

Under this doctrine, the intent requirement for battery is satisfied if the defendant:
- intended to cause contact with a third party but instead caused contact with the P (same tort, different person); or
- intended to commit an assault, but instead committed a battery (different tort, same person)

Question 7

When is conduct extreme and outrageous for IIED purposes?

Answer 7

Conduct is extreme and outrageous if it exceeds the possible limits of human decency

Question 8

Conversion

Answer 8

Conversion is an intentional exertion of dominion or control over P’s chattel that so seriously interferes with P’s ownership rights that D is liable for the fair market value of the chattel at the time of conversion

Question 9

Damages for trespass to chattels vs. conversion

Answer 9

• Trespass to chattels: liable for actual damages - e.g., cost of repairs, loss of use, etc.
• Conversion: liable for fair market value of chattel at time of conversion

Question 10

Compliance with industry custom and negligence

Answer 10

Courts may consider compliance with industry custom, but compliance with (or deviation from) custom is not conclusive on the issue of negligence. It’s just one factor considered by the fact finder

Question 11

Modified (or partial) comparative negligence

Answer 11

When the plaintiff’s own negligence contributes to their harm, the plaintiff’s recovery is reduced by their proportionate share of fault and is barred if the plaintiff’s fault exceeds 50%

NOT DEFAULT ON MBE – ONLY APPLY IF SPECIFICALLY TOLD

Question 12

Pure comparative negligence

Answer 12

When the P’s own negligence contributes to their harm, the P’s recovery is reduced by their proportionate share of fault

DEFAULT ON MBE – APPLY UNLESS TOLD OTHERWISE

Question 13

Can service providers be subject to strict products liability claims?

Answer 13

No. Strict product liability claims can only be brought against commercial suppliers or sellers.

Those in the business of providing services are not subject to strict products liability

Question 14

What happens in a pure comparative fault JDX when both parties are entitled to recover damages?

Answer 14

In pure comparative fault JDX, where both parties are entitled to recover, the P’s recovery is reduced (i.e., offset) by the D’s recovery

example: P is 70% at fault, D is 30% at fault. 10k in damages to P, 1k to D. P’s recovery will be reduced by her proportionate share of fault (10,000-7,000=3,000) and D’s recovery will be reduced by his proportionate share of fault (1,000-300=700). Since both parties are entitled to recovery, P’s recovery is reduced by the D’s recovery (3,000-700-2,300)

Question 15

3 theories of recovery for NIED

Answer 15

1. zone of danger
2. bystander
3. special situation

Question 16

Zone of danger theory

NIED

Answer 16

Liability under this theory arises when
- D’s negligent conduct placed P in danger of immediate bodily harm and
- that danger caused the P serious emotional distress

Question 17

When is a seller of land liable for negligence to people off the land for physical harm created by an artificial condition?

Answer 17

A seller of land remains liable for negligence to persons off the land for physical harm caused by an artificial condition that
- existed at the time of sale
- the seller knew or should have known existed and posed an unreasonable risk of harm to such persons

Question 18

Strict liability for abnormally dangerous activitites

Answer 18

A defendant is strictly liable for physical harm caused by their abnormally dangerous activities, as long as that harm resulted from the dangers or hazards of the activity. Use of reasonable care is no defense

Question 19

Wrongful birth claims

Answer 19

Allows parent to recover for the birth of an unhealthy child if they can prove
1. Doctor negligently failed to warn them of a subsatntial risk of birth defect; and
2. Had the parents known about the risk, the child would not have been conceived or born

Question 21

Multiple tortfeasors acting pursuant to a common plan or design

i.e., illegal drag racing example

Answer 21

If multiple tortfeasors act pursuant to a common plan or design, and at least one of them causes the P’s harm, then all of them are jointly and severally liable.

I.e., you and B and illegally drag racing. B hits P with car and P is hurt. B can come after you for all of the recovery. This is because you were acting pursuant to a common plan (drag racing) and thus, you are jointly and severally liable