Torts

Question 1

a duty of care is generally owed to

Answer 1

• viable fetus
• 3rd party for whose economic benefit a legal or business transaction is made
• discovered trespasser

Question 2

a child is required to conform to a higher standard of care than that of a child of like age, education, intelligence, and experience when the child engages in..

Answer 2

an activity that is normally one in which only adults engage

Question 3

what must be shown by P under the attractive nuisance doctrine

Answer 3

• dangerous condition present on the land of which the owner is or should be aware
• owner knows or should know that young persons frequent the vicinity of this dangerous condition
• the condition is likely to cause injury (dangerous because of the kid’s inability to appreciate the risk
• expense of remedying the situation is slight compared with the magnitude of risk

Question 4

under traditional liability rules… a landowner owes a duty to warn of or make safe known dangerous conditions on the land of which the licensee is…

Answer 4

NOT aware

Question 5

under traditional liability for landowners, a landowner owes an invitee…

Answer 5

general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee AND duty to make reasonable inspections to discover dangerous conditions and make them safe

Question 6

when can a person lose his invitee status

Answer 6

if he exceeds the scope of the invitation (goes into a portion of the premises where his invitation cannot reasonably be said to extend)

Question 7

firefighter’s rule

Answer 7

police officers and firefighters are treated like licensees
and cannot recover for landowner’s failure to inspect or repair dangerous conditions that are an inherent risk of their law enforcement or firefighting activity

Question 8

negligence per se

Answer 8

• P must be in the class intended to be protected by the statute
• statute must have been designed to prevent the type of injury suffered

Question 9

a bystander who witnesses the ∆ negligently injuring another can recover for NIED in most states by showing…

Answer 9

• close relationship between the bystander and the person injured
• bystander’s presence at the scene of the injury AND
• bystander’s observation or perception of the event
• bystander no longer required to be in the zone of danger

Question 10

one who acts for the benefit of another has a duty to…

Answer 10

continue the assistance

Question 11

transferred intent doctrine applies to

Answer 11

• assault
• battery
• false imprisonment
• trespass to land
• trespass to chattels

Question 12

transferred intent doctrine

Answer 12

allows an intent to commit a tort against one person to be transferred to the committed tort or the injured person

Question 13

shopkeeper’s privilege

Answer 13

• must be reasonable belief as to the fact of theft
• detention must be conducted in a reasonable manner and nondeadly force can be used
• detention must be only for a reasonable period of time and only for the purpose of making an investigation

Question 14

IIED requires proof of

Answer 14

• act by the ∆ amounting to extreme and outrageous conduct
• intent on the part of the ∆ to cause P to suffer severe emotional distress or recklessness as to the effect of ∆’s conduct
• causation
• damages (severe emotional distress)

Question 15

difference between trespass to chattels and conversion

Answer 15

seriousness of the interference with the P’s possession

Question 16

when may a person use deadly force in self defense

Answer 16

if she reasonably believes she is in danger of serious bodily injury

Question 17

to assert the defense of property, a ∆ using force against another may not…

Answer 17

use force against one with a privilege to enter the property

Question 18

the “but for” test for actual cause applies to…

Answer 18

concurrent causes

Question 19

eggshell-skull P rule

Answer 19

• applies in both direct and indirect cause cases

- unforeseeable severity of the P’s harm does not relieve the ∆ of liability

Question 20

in a negligence action, the P cannot recover ___ damages

Answer 20

presumed

Question 21

partial comparative negligence jurisdiction

Answer 21

P’s recovery will be barred if her negligence passes a threshold level, either 50% or 51%

Question 22

for assumption of risk to be available as a defense, P must have

Answer 22

known of the risk and voluntarily assumed it

Question 23

for a design defect in a products liability action, P must show…

Answer 23

a less dangerous modification or alternative for the product was economically feasible

Question 24

to prove breach of duty in products liability action based on negligence, P must show…

Answer 24

∆ supplied a defective product

Question 25

in contrast to products liability cases based on negligence, those based on strict liability do not require...

Answer 25

suppliers have an opportunity to inspect

Question 26

in products liability case based in strict liability, P may recover...

Answer 26

personal injury damages and property damages

Question 27

how is actual malice defined for purposes of the constitutional law of defamation

Answer 27

knowledge that the statement was false, or reckless disregard by the ∆ as to the statement's trust or falsity

Question 28

damages for defamation will be presumed if

Answer 28

- it disparages P in the conduct of her business or occupation - asserts that P is suffering from a loathsome disease - alleges the P has committed a serious crime or crime of moral turpitude OR - imputes unchastity to a female P

Question 29

publication of facts facing P in a false light and public disclosure of private facts about P require P to show...

Answer 29

publicity

Question 30

what must be shown for a qualified privilege to apply for defamatory statements

Answer 30

the statement must be reasonably relevant to the interest being protected

Question 31

∆ engaging in an abnormally dangerous activity may be liable only to...

Answer 31

foreseeable Ps injured as a result of the dangerous propensity of the activity

Question 32

principal will be vicariously liable for the tortious acts of her independent contractor if...

Answer 32

the independent contractor is engaged in inherently dangerous activities OR the duty is non-delegable

Question 33

respondeat superior

Answer 33

makes employers vicariously liable for the torts of employees - does not apply to independent contractors

Question 34

for purposes of private nuisance, the interference with P's use of the land is unreasonable only if...

Answer 34

the severity of P's inflicted injury outweighs the utility of ∆'s conduct

Question 35

false imprisonment

Answer 35

i) act or omission to act on ∆'s part that confines or restrains P to a bounded area (may be directed against P's property if its effect is to restrain P from leaving) ii) intent on the part of the ∆ to confine or restrain P to the bounded area iii) causation

Question 36

indemnity is available in vicarious liability situations where one party...

Answer 36

is held liable for damages caused by another simply because of his relationship to that person

Question 37

inentional misrepresentation or fraud

Answer 37

i) misrepresentation by ∆ ii) scienter (involves ∆'s state of mind and requires P to show that ∆ made the statement knowing it to be false or made it with reckless disregard as to truth or falsity) iii) intent to induce P's reliance on the misrepresentation iv) causation (actual reliance on the misrepresentation) v) justifiable reliance on the misrepresentation vi) damages

Question 38

as a general rule, no legal duty is imposed upon any person to affirmatively act fro the benefit of others, however, one who gratuitously acts for the benefit of another while under no duty to do so, is then under a duty to...

Answer 38

act as a reasonable person

Question 39

recovery in a wrongful death action is allowed only to the extent that the deceased could have...

Answer 39

recovered in a PI action had he lived

Question 40

in jurisdictions following traditional rules for landowners, the nature of a duty of an owner of land to those on the premises depends on...

Answer 40

the legal status of the P in regard to the property

Question 41

invitee

Answer 41

person who enters the land in response to an express or implied invitation of the landowner - a person will lose invitee status when he exceeds the scope of the invitation (goes somewhere on land without permission)

Question 42

duty owed to invitees under traditional rules

Answer 42

duty to make reasonable inspections of the area to discover dangerous conditions and make them safe

Question 43

publicity is required in which of the invasion of privacy brances

Answer 43

- publication of facts placing P in a false light | - public disclosure of private facts about P

Question 44

for intentional misrepresentation, a ∆ carries a higher duty if...

Answer 44

she holds a fiduciary relationship with the P

Question 45

actual malice for the purposes of the constitutional law of defamation is defined as...

Answer 45

knowledge that the statement was false, or reckless disregard by ∆ as to the statement's truth or falsity

Question 46

inducement

Answer 46

additional facts a P pleads and proves for a statement not defamatory on its face

Question 47

the defamation defense of absolute privilege requires the statement made during judicial proceedings bear a...

Answer 47

reasonable relationship to the proceedings

Question 48

if defamation involves private figures but a matter of public concern there can be...

Answer 48

NO liability without fault

Question 49

in an action for invasion of the right to privacy, the P need only plead _____ or _____ as damages

Answer 49

emotional distress or mental anguish

Question 50

colloquium

Answer 50

pleading additional facts to show a defamatory statement referred to a P

Question 51

in an action for fraud or deceit, with regard to the element of misrepresentation, the ∆ cannot...

Answer 51

actively conceal a material fact

Question 52

a public official, such as a mayor, may not recover for defamatory words relating to his official conduct unless there is clear and convincing proof that...

Answer 52

the statement was made with actual malice

Question 53

invasion of privacy based on publication by ∆ of facts placing P in false light

Answer 53

i) publication of facts about P by ∆ placing P in a false light ii) false light must be something that would be highly offensive to a reasonable person under the circumstances

Question 54

products liability based on strict liability

Answer 54

i) ∆ is a commercial supplier ii) ∆ produced or sold a defective product iii) the defective product was the actual and proximate cause of the P's injury AND iv) the P suffered damage to person or property

Question 55

to prove breach of duty in products liability based on negligence the P must show...

Answer 55

i) negligent conduct by the ∆ leading to ii) the supplying of a defective product by the ∆ BUT a dealer who buys from a reputable manufacturer with no reason to anticipate the product is dangerous need only make a cursory inspection of the good to avoid liability for manufacturing defects