Torts

Question 1

Intentional Torts

Transferred Intent

Answer 1

The intent to harm one party can be transferred when the D had the intent to commit a tort against one particular person, but instead
(a) commits a different tort against that person, or
(b) another person is injured.

Question 2

Intentional Torts

Battery

Answer 2

A D is liable for Battery when there is:
1. an intentional,
2. harmful or offensive contact,
3. with the P’s person (including anything connected to the P).

Question 3

Intentional Torts

Assault

Answer 3

A D is liable for Assault when there is:
1. an intentional act,
2. that causes the P to be placed in reasonable apprehension,
3. of imminent harmful or offensive contact with the P’s person.

Question 4

Intentional Torts

False Imprisonment

Answer 4

A D is liable for False Imprisonment when he:
1. intentionally acts,
2. to restrain P to fixed boundaries, and
3. the P is aware of the confinement or is harmed by it.

Question 5

Intentional Torts

Trespass to Land

Answer 5

• A D is liable for Trespass to Land when he intentionally enters the land of another (physical invasion).
• Physical invasion includes:
  1. remaining on the land, and
  2. causing an object or a third person to enter the land.
• Intent to trespass is not required; the only intent required is that the D intended to enter/remain on the subject land.

Question 6

Intentional Torts

(Nominal Damages)

Answer 6

Battery - Trespass to Land
A claim may be supported by nominal damages; P need not suffer actual damages.

Question 7

Intentional Torts

Trespass to Chattels

Answer 7

A D is liable for Trespass to Chattels when he:
1. intentionally
2. interferes with another’s personal property, and
3. the amount of damage is small.

Mistaken ownership of the property is not a defense to trespass to chatt

Question 8

Intentional Torts

Conversion

Answer 8

A D is liable for Conversion if the amount of interference is substantial.

Question 9

Intentional Torts

Intentional Infliction of Emotional Distress (IIED)

Answer 9

A D is liable for IIED if:
1. the D acted intentionally or recklessly,
2. the D’s conduct was extreme and outrageous,
3. the D’s act caused extreme emotional distress (causation), and
4. the P actually suffered severe emotional distress (damages).

Question 10

Intentional Tort Defense(s)

Consent

Answer 10

Consent is a defense to intentional torts, and may be express or implied through words or conduct.

Question 11

Negligence

Negligence Elements

Answer 11

A prima facie case for negligence requires:
1. duty (a duty of due care),
2. breach (a breach of that duty),
3. causation, and
4. damages

Question 12

Negligence

To Whom a Duty is Owed

Answer 12

• The majority of courts hold that a duty is only owed to foreseeable plaintiffs in the zone of danger (Cardozo view).
• A minority of courts hold that a duty is owed to everyone including unforeseeable plaintiffs (Andrews view).

Question 13

Negligence

Affirmative Duty to Act

Answer 13

Generally, there is no duty to act affirmatively, unless:
(a) a pre-existing relationship exists between the parties (i.e. parent-child, landowner-entrant),
(b) the D put the P in peril, or
(c) the D has already undertaken to rescue the P.

Question 14

Negligence

General Standard of Care

Answer 14

General standard of care is that of reasonable prudent person (RPP). A RPP takes appropriate measures to avoid foreseeable risks.

Question 15

Negligence

Standard of Care (Children)

Answer 15

• Children must act as a hypothetical child of similar age, experience, and intelligence.
• If a child is engaged in an adult activity, the child has a duty to act as a reasonable adult.

Question 16

Negligence

Standard of Care (Doctors)

Answer 16

• A medical doctor is held to the degree of care and skill of the average qualified practitioner.
• A doctor has a duty to obtain informed consent from his patient before treatment.

Question 17

Negligence

Standard of Care (Land Owner)

Answer 17

What duty of care is owed by a landowner is determined by the type of entrant.

• Undiscovered Trespasser: No duty is owed by the landowner.
• Anticipated Trespasser: The landowner must warn of (or make safe) highly dangerous artificial conditions that the landowner knows of.
• Licensee (invited as social guest): The landowner must warn of (or make safe) dangerous conditions that are known to the landowner but not apparent to a guest.
• Invitee (invited on the property for business): The landowner owes all the duties he would to a licensee, plus the duty to make reasonable inspections of the property to find and make safe non-obvious dangerous conditions.

Question 18

Negligence

Negligence Per Se

Answer 18

• A violation of a statute can be used to establish the duty and breach elements of negligence.
• To use negligence per se, P must show that:
  1. the statute’s purpose is to prevent the type of harm that the P has suffered; and
  2. the P is within the class of persons the statute seeks to protect.

Question 19

Negligence

Causation

Answer 19

• A P must show that the D’s conduct was both the actual and proximate cause of the injury.
• Actual cause is the “but for” cause – but for D’s negligence, P would not have been injured.
• Proximate cause is the legal cause, which means that the injury must have been a foreseeable result of the breach.

Question 20

Negligence

Intervening Causes

Answer 20

• D is liable for all foreseeable intervening causes (such as subsequent medical malpractice and negligence by rescuers).
• D is generally not liable for superseding intervening causes that are not a normal response or not a reasonably foreseeable reaction to the D’s conduct.

Question 21

Negligence

Eggshell Plaintiff Rule

Answer 21

The D is also liable for any additional and unforeseen physical consequences caused by P’s weakness or susceptibility because the D takes the P as they are.

Question 22

Defenses to Negligence Claims

Assumption of Risk

Answer 22

P may be denied recovery if they voluntarily assumed a known risk. It may be express or implied.

Question 23

Defenses to Negligence Claims

Comparative Negligence

Answer 23

• Under pure comparative negligence (majority), the P’s negligence or assumption of risk will reduce his recoverable damages by the percentage of his own fault.
• Partial comparative negligence bars the P’s recovery, if he contributed more than 50% to his own injury.

Question 24

Defenses to Negligence

Contributory Negligence

Answer 24

• In a contributory negligence jurisdiction, a P cannot recover damages if he contributed to his own injury.
• This system is abolished in most jurisdictions.

Question 25

# Negligence Negligent Infliction of Emotional Distress (NIED)

Answer 25

* D is liable for NIED when the D engages in negligent conduct that causes the P to suffer serious emotional distress. - A P may recover in a zone-of-danger claim, if the P: 1. suffers a threat of a physical impact that directly causes serious emotional distress, and 2. manifests physical symptoms. - A P may recover in a bystander claim, if a P suffers serious emotional distress from contemporaneously perceiving (see, hear, etc.) bodily injury to a close family member. - A P may recover if he has a special relationship with the D (e.g. mishandling a dead body, misreporting a death).

Question 26

# Vicarious Liability Vicarious Liability (Employer)

Answer 26

Under respondeat superior, an employer is vicariously liable for an employee’s torts that are committed within the scope of employment.

Question 27

# Vicarious Liability Vicarious Liability (Independent Contractor)

Answer 27

* Generally, one who hires an independent contractor is not vicariously liable for the torts of the contractor. * However, an employer remains liable for: (a) nondelegable duties (such as maintaining safe premises or inherently dangerous activities), or (b) negligent selection of an incompetent independent contractor.

Question 28

# Vicarious Liability Employee vs. Independent Contractor

Answer 28

* If the principal has the right to control the manner and method of the job performed, then the person is deemed to be an employee of the principal. * In contrast, a person subject to less extensive control is considered an independent contractor.

Question 29

# Liability of Multiple Defendants Joint and Several Liability

Answer 29

If multiple Ds are the proximate cause of a single indivisible harm, then the P may recover the entire amount of his damages from any D.

Question 30

# Economic & Dignitary Torts Defamation

Answer 30

The elements of defamation are: 1. a *false* defamatory statement, 2. of and concerning the P made by the D, 3. publication by the D to a third party, and 4. damages.

Question 31

# Defamation Slander

Answer 31

* Slander is an oral defamatory statement. * For slander, the P needs to prove pecuniary damages, unless the statement is "slander per se": (a) impugning the business integrity of the P, (b) attributing to the P a crime of moral turpitude, (c) a statement that the P has a loathsome disease, or (d) a statement of serious sexual misconduct, which historically was an unchaste woman.

Question 32

# Defamation Libel

Answer 32

* Libel is defamation in a permanent format. * For libel, the P does not need to prove pecuniary damages.

Question 33

# Defamation Defamation (Constitutional Requirements)

Answer 33

* If the P is a _public figure_, the P must prove the D's actual malice - reckless disregard for truth for knowledge of the falsity. * If the P is a _private figure speaking about a matter of public concern_, the P must prove that the speaker was negligent.

Question 34

# Defamation Defenses to Defamation

Answer 34

Truth of the statement, and qualified & absolute privilege are a defense to a defamation claim.

Question 35

# Defamation Qualified Privilege & Absolute Privilege

Answer 35

* Qualified Privilege: A defense to defamation when the speech serves a socially useful purpose. The speaker must be speaking in good faith. * Absolute Privilege: Defense for defamatory statements made about/by parties in a judicial proceeding.

Question 36

# Privacy Torts False Light

Answer 36

* False light occurs when: 1. the D causes widespread dissemination, 2. of the P's beliefs, thoughts, or actions, 3. in a *false light*, 4. that would be highly objectionable to a reasonable person. * If the P is a public figure or involves a matter of public concern, the P must show the D's actual malice.

Question 37

# Privacy Torts Public Disclosure of Private Facts

Answer 37

* Public disclosure of private facts occurs when: 1. the D causes widespread dissemination, 2. of *truthful* private information, 3. that would be highly objectionable to a reasonable person. * Newsworthiness is a defense unless actual malice is present.

Question 38

# Privacy Torts Intrusion of Privacy

Answer 38

Intrusion of privacy occurs when: 1. the D intrudes into the private affairs of the P, and 2. that would be highly objectionable to a reasonable person (e.g. reading private mail, illegal wiretapping).

Question 39

# Misrepresentation Intentional Misrepresentation

Answer 39

The elements for intentional misrepresentation are: 1. misrepresentation of a material fact by the D, 2. the D knew the statement was false, 3. intent of the D to induce the P, 4. actual and reasonable reliance by the P, and 5. damages.

Question 40

# Misrepresentation Negligent Misrepresentation

Answer 40

The elements for negligent misrepresentation are: 1. a misrepresentation by the D in a business transaction, 2. the D was negligent in obtaining or communicating the false information, 3. intent of the D to induce the P, 4. actual and reasonable reliance by the P, and 5. damages.

Question 41

# Other Torts Malicious Prosecution

Answer 41

Malicious prosecution occurs when: 1. there is an initiation of criminal proceedings against the P (i.e. filing a police report), 2. the claim was initiated for an improper purpose (not for obtaining justice), 3. the claim was not supported by probable cause, 4. the claim ended in the P’s favor, and 5. the P suffered damages.

Question 42

# Other Torts Abuse of Process

Answer 42

Abuse of process occurs when the D intentionally misuses legal process (e.g. depositions, discovery tools) for an ulterior purpose.

Question 43

# Nuisance Nuisance

Answer 43

* A **public nuisance** is: 1. a substantial, unreasonable interference, 2. with the health, safety, or property rights, 3. of the community (a considerable number of people). * A **private nuisance** is: 1. a substantial, unreasonable interference, 2. with a person's use or enjoyment of her property. * Interference is *substantial* when it would be offensive or annoying to an average reasonable person in the community. * Interference is *unreasonable* when the harm to P outweighs the utility of D's conduct. | P will be entitled to damages or an injunction.

Question 44

# Strict Liability Abnormally Dangerous Activity

Answer 44

* A D engaging in an abnormally dangerous activity is subject to strict liability. * An abnormally dangerous activity is one that: 1. is not of common usage in the community, and 2. creates a foreseeable and highly significant risk of physical harm (even when reasonable care is exercised).

Question 45

# Products Liability Strict Products Liability

Answer 45

A commercial supplier of a defective product is subject to strict liability for personal injuries caused by the product. P must prove the following elements: commercial supplier, defective product, causation, and damages. Defect must exist when the product left D’s control.

Question 46

# Strict Products Liability Commercial Supplier

Answer 46

A commercial supplier is any person/entity who is engaged in selling goods of the type, without substantial alteration, including retailers and the product manufacturer.

Question 47

# Strict Products Liability Types of Defects

Answer 47

* A product is defective when it is unreasonably dangerous for any intended uses or unintended foreseeable use. * Proving that the product was defective is based upon one of three theorires: (1) manufacturing defect, (2) failure to warn, or (3) design defect. * **Manufacturing Defect** exists when the product: 1. differs from the intended design, and 2. is more dangerous than if made properly. * **Failure to Warn** exists when: 1. the P was not warned of the risks of the product, 2. which are not obvious to an ordinary user but known to the designer/manufacturer. * **Design Defect** exists if the product can be made or manufactured safer, more practical, and at a similar cost.

Question 48

# Products Liability Negligence

Answer 48

Negligence theory is applicable to PL.

Question 49

# Products Liability Liability for Breach of Warranty

Answer 49

* The **Implied Warranty of Merchantability** requires that *all* goods sold by a merchant be fit for their ordinary purpose. * An **Implied Warranty of Fitness for a Particular Purpose** is created when: 1. a seller knows of the buyer's particular purpose for the goods; and 2. the buyer relies on the seller's skill or judgment to select suitable goods. * An **Express Warranty** is any statement of fact or promise concerning goods.