Torts

Question 1

Prima Facie Case for an intentional tort

Answer 1

1) Act by Defendant
2) With specific or general intent
3) Causation

Question 2

Specific intent

Answer 2

Intent to bring about the specific harm

Question 3

General Intent

Answer 3

Substantial certainty that tortuous conduct will result from defendant’s act

Question 4

Transferred Intent Doctrine

Answer 4

When defendant acts with the intent to commit a given tort but commits either a different tort or a inflicts it upon a different person, defendant’s intent transfers to the tort actually committed or to the person actually harmed

1) assault
2) battery
3) false imprisonment
4) trespass

Question 5

Assault

Answer 5

An intentional act creating plaintiff’s reasonable apprehension of immediate harmful or offensive contact to plaintiff’s person or something closely attached.

1) act creating a reasonable apprehension in plaintiff
2) of immediate harmful or offensive contact to plaintiff’s person
3) intent
4) causation

Question 6

Battery

Answer 6

An intentional harmful or offensive contact to plaintiff’s person.

1) Harmful or offensive contact by defendant
2) to plaintiff’s person
3) Intent
4) causation that must be direct

Question 7

False Imprisonment

Answer 7

An intentional act by Defendant in plaintiff;s restraint or confinement to a bounded area.

1) Act resulting in plaintiff’s restraint or confinement
2) Plaintiff is confined to a bounded area
3) intent
4) causation

Question 8

Shopkeeper’s privilege

Answer 8

A store owner may detain a suspected thief if:

1) store has reasonable cause to believe a theft occurred
2) store detains suspect in a reasonable manner for purposes of investigation
3) detention is reasonable in length and scope

Question 9

Intentional Infliction of Emotional Distress

Answer 9

Extreme and outrageous conduct by defendant causing plaintiff’s severe emotional distress

1) Extreme and outrageous conduct by defendant - must exceed the bounds of decency in society
2) Severe emotional distress in plaintiff
3) intentionally or recklessly
4) causation

Question 10

Recklessness

Answer 10

Defendant disregards the likely consequences of his acts.

Question 11

Types of Conduct that will be considered outrageous conduct in torts.

Answer 11

1) defendant targets plaintiff’s known sensitivity
2) defendant’s conduct is continuous or repetitive
3) defendant targets a plaintiff who is a member of a fragile class
4) defendant is a common carrier or innkeeper

Question 12

Trespass to Land

Answer 12

A physical invasion of plaintiff’s real property by defendant

1) Physical invasion of plaintiff’s real property by defendant
2) Intent
3) causation

Question 13

Trespass to chattel

Answer 13

1) defendant causes minor interference with plaintiff’s right of possession in tangible personal property
2) intent
3) causation
4) damages for the cost of repair or rental value

Question 14

Conversion of Chattel

Answer 14

1) defendant significantly interferes or damages plaintiff’s right of possession in tangible personal property
2) the damage warrants paying the chattel’s full value
3) intent
4) causation
5) damages for the market value of the chattel at the time of conversion

Question 15

What is required to give consent, what are the 2 types of consent.

Answer 15

A defense to all intentional torts. If plaintiff consents to defendant;s otherwise tortuous conduct, Defendant is not liable for that act. Plaintiff must be capable of giving consent. Defendant’s actions must be within the scope of the consent.

1) express consent either written or verbal
2) implied consent that can be reasonably inferred from plaintiff’s actions or based on custom

Question 16

Self Defense, defense of property, and Defense of others

Answer 16

1) REasonable belief a tort is about to be committed
2) imminent or in progress tort
3) reasonable force

self-defense - only available to the intial agressor if they completely withdrew prior to need for self-defense or defendant escalates force to deadly

defense of others - reasonable belief the person they are aiding would have the right to self-defense

defense of property - cannot use deadly force

Question 17

Necessity Defense

Answer 17

A defense to torts against property in which defendant damages plaintiff’s property to avoid a greater danger.

1) interference must be reasonably necessary to avoid an immediate threatened injury
2) threatened injury must be more serious than the interference undertaken to avert it

public necessity is an absolute defense

Question 18

Recapture of Chattels

Answer 18

Plaintiff may use peaceful means to recapture chattel taken unlawfully

Question 19

Defamation

Answer 19

A false statement concerning plaintiff, made by defendant to at least one person other than plaintiff, that is harmful to plaintiff’s reputation.

1) A false
2) defamatory statement
3) concerning plaintiff
4) publication
5) harmful to plaintiff’s reputation

Question 20

1st amendment considerations for defamation

Answer 20

The constitution imposes additional requirements on defamation if the target is a public figure or public official. Plaintiff must show actual malice and the statements were actually false.

Question 21

Defamation Damages

Answer 21

Libel - written defamatory statement, presumed damages for reputational harm

Slander - spoken defamatory statement, must prove special damages or slander per se

Question 22

Slander per se

Answer 22

Defamatory statement that additionally

1) adversely reflects on plaintiff’s business or professional reputation
2) claims that plaintiff has a loathsome disease
3) claims that plaintiff committed a crime of moral turpitude
4) imputes plaintiff unchastity

Question 23

Defenses to Defamation

Answer 23

1) consent
2) truth
3) privilege - absolute privilege for government officials, qualified privilege when defendant invites the statement or is in the public interest

Question 24

Appropriation

Answer 24

Unauthorized use of plaintiff’s name or likeness for commercial purposes.

Question 25

False Light

Answer 25

Widespread publication of a falsehood or material misrepresentation about plaintiff that would be highly offensive to a reasonable person. Matters of public concern must show actual malice or reckless disregard for truth.

Question 26

Intrusion on Seclusion

Answer 26

intrusion upon P's private affairs in a manner that would be highly offensive to a reasonable person 1) reasonable expectation of privacy 2) intrusion is highly offensive

Question 27

Disclosure

Answer 27

Public disclosure of plaintiff's private information.

Question 28

Negligence

Answer 28

Negligence is analyzed under an objective standard by comparing defendants actions to a reasonable person under the same or similar circumstances. 1) Duty of care 2) Breach of Duty 3) causation 4) damages

Question 29

Duty of Care

Answer 29

Defendant owes a duty to behave like a reasonably prudent person under the circumstance to all foreseeable plaintiffs.

Question 30

Foreseeable Plaintiff tests

Answer 30

Zone of Danger - the area around defendant's activities in which a plaintiff could foreseeably be injured Rescuer's exception - defendant can be held liable for injuries suffered during rescue attempts by anyone other than emergency personnel

Question 31

Standard of care for children

Answer 31

Children are held to the standard of care of a reasonable child of similar age, education, intelligence, and experience

Question 32

Standard of care for professional

Answer 32

Must act with the knowledge and skill of a member of their profession in good standing in similar communities.

Question 33

Statutory Standards and Negligence per se

Answer 33

Statutory Standards apply if: 1) the statutes purpose is to prevent the type of harm suffered by plaintiff 2) plaintiff is of the class intended to be protected by the statute 3) compliance is less dangerous than non-compliance 4) compliance is possible Negligence per se - violations of statutory standards are conclusively breaches of presumed duties

Question 34

Duty owed to Trespassers

Answer 34

Unknown or undiscovered trespassers - no duty owed Anticipated trespassers - make safe and warn of any known, concealed, man-made hazards and take reasonable care in any activities

Question 35

Attractive Nuisance

Answer 35

Owner must take reasonable care to eliminate danger on their property if: 1) they are aware of the dangerous condition 2) should know there are children in the vicinity 3) the condition is likely to cause injury given a child's inability to appreciate the risk 4) the magnitude of the risk outweighs its utility or the expense of remedying it

Question 36

Duty of care for invitees and licensees

Answer 36

Licensee - someone who enters land for their own benefit Invitee - one who enters land open to the public or who enters with permission for the benefit of the lands owner Land owners owe reasonable care for all activities on their land and a duty to warn or make safe known dangerous conditions, additionally land owners owe invitees the duty to inspect and make safe non-obvious hazards

Question 37

Establishing breach of duty

Answer 37

Defendant breaches his duty when his conduct falls short of the standard of care owed under the circumstances. There are 2 arguments for breach of duty 1) Defendant breached the applicable standard of care 2) Res Ipsa Loquitor

Question 38

Res Ipsa Loquitor

Answer 38

The very occurrence of the accident causing plaintiff;s injuries supports negligent conduct. 1) Inference of negligence - the harm normally would not normally occur absent negligence 2) Attributable to Defendant - defendant had a level of control that would infer their negligence as the cause 3) injury was not attributable to the plaintiff

Question 39

3 ways to establish actual cause

Answer 39

"But-for" test - but for defendant's alleged activity, Plaintiff would not have been injured Substantial Factor Test - when multiple causes create plaintiff's injury and any 1 alone could be the cause. defendant's breach is the actual cause it was a substantial factor in cause plaintiff's injury Burden-Shifting Test - Multiple actors, only one causes the injury and it is unclear which, the burden shifts to the defendant's to identify the actual cause or all are jointly liable for damages

Question 40

Proximate Cause

Answer 40

Defendant is liable for foreseeable outcomes of their conduct even if unlikely.

Question 41

Indirect Causes

Answer 41

Intervening forces that occur after defendant's conduct to cause plaintiff's injuries will not cut off defendant's liability if they are foreseeable. Defendant is liable for injuries even against the eggshell plaintiff. An intervening force is usually foreseeable if it is a normal response or reaction to defendant's negligent act or defendant's negligence increased the risk that an intervening force would cause harm to plaintiff.

Question 42

3 Types of Recoverable Damages

Answer 42

1) Personal Injury - all past, present, and prospective damages 2) Property damage - recover reasonable cost of repair, or full market value at the time of accident 3) Punitive damages - only recoverable if defendants conduct is wanton and willful, reckless, or malicious

Question 43

Duty to mitigate

Answer 43

Plaintiff must take reasonable steps to mitigate loses.

Question 44

3 ways defendant can prevent recovery?

Answer 44

Comparative Negligence Contributory Negligence Assumption of Risk

Question 45

Comparative Negligence

Answer 45

Defendant can establish that plaintiff's injuries are at least partially the result of plaintiffs own negligence. Plaintiff's recovery is limited to the defendants comparative percent of fault. Modified comparative negligence cannot recover if plaintiff's fault was more than defendant's.

Question 46

Contributory Negligence

Answer 46

Plaintiff is barred from recovery if defendant establishes that plaintiffs negligence contributed to their injuries. The Last Clear Chance Defense

Question 47

Assumption of Risk

Answer 47

Defendant can deny plaintiffs recovery by established that the plaintiff assumed the risks of damage. 1) plaintiff knew the risk 2) plaintiff voluntarily proceeded int he face of that risk

Question 48

Negligent Infliction of Emotional Distress

Answer 48

1) Defendant's negligence results in a close risk of bodily harm to plaintiff 2) defendant's negligence results in plaintiff's severe emotional distress 3) plaintiff exhibits some physical manifestation attributable to her emotional distress

Question 49

Prima Facie Case for Strict Liability

Answer 49

Strict Liability allows a defendant to be found liable without fault. 1) Ultra hazardous and/or abnormally dangerous conditions 2) animal conduct 3) products liability 1) nature of defendant's activity imposes absolute duty to make safe 2) actual and proximate cause 3) damages to plaintiffs person or property

Question 50

Test for an abnormally dangerous activity

Answer 50

1) Severe Risk 2) Cannot be made safe 3) Uncommon The injury results from the abnormally dangerous activity.

Question 51

Products Liability: strict Liability

Answer 51

1) defendant is a commercial supplier 2) Product is defective 3) Defective Product was actual and proximate cause of plaintiff's injury 4) Plaintiff used the product in a foreseeable manner

Question 52

Types of product Defects

Answer 52

Manufacturing defect - product departs from its intended design, causing it to be more dangerous than normal, product failed to perform as safely as an ordinary consumer would expect. Design Defect - product creates an unreasonable risk of danger due to its faulty design, show there was a technologically and economincally feasible alternative design Inadequate Warnings - manufacturer fails to adequately warn of a non-obvious risk associated with a product's use

Question 53

Product Liability: Negligence Theory

Answer 53

1) Duty of Care 2) Breach of duty 3) Causation 4) Damages

Question 54

Nuisance

Answer 54

An intentional invasion of either public or private property rights that substantially and unreasonably interferes with the peaceful and quiet enjoyment of these rights