Torts

Question 1

Intentional Torts

Answer 1

1. Battery
2. Assault
3. False Imprisonment
4. Intentional Infliction of Emotional Distress
5. Trespass to Lands
6. Trespass to Chattels
7. Conversion

Question 2

Battery

Answer 2

1. Harmful or Offensive Contact
2. to Plaintiff’s person
3. Intent; and
4. Causation

Damages not Required

Question 3

Assault

Answer 3

1. D must place the P in a reasonable apprehension
2. That apprehension must be of an immediate harmful or offensive contact
3. Intent; and
4. Causation

Damages not Required

Question 4

False Imprisonment

Answer 4

1. D must commit an act of restraint
2. P is confined in a bounded area
3. Intent; and
4. Causation

Damages not Required

Question 5

An act of restraint

Answer 5

• Restraint can be physical, but threats are sufficient - that would operate on the mind of an ordinary person
• An omission can be an act of restraint - Only true if there was a pre-existing duty owed by the P
• An act of restraint only counts if the P is aware of it or harmed by it

Question 6

An area is not bounded if:

Answer 6

There is a reasonable means of escape the P can reasonably discover

• moral pressure and future threats are insufficient
• If the only way out is dangerous, disgusting or humiliating - it is not a reasonable means
• If it is hidden - it is not reasonably discoverable

Question 7

Awareness of Confinement

Answer 7

P must know of the confinement or be harmed by it

Question 8

Intentional Infliction of Emotional Distress (IIED)

Answer 8

1. Extreme & Outrageous Conduct
2. Intent or Recklessness
3. Causation; and
4. Damages - Severe Emotional Distress

This is a fall back tort, find another one before using this alternative

Question 9

Factors that lead to Outrageousness

Answer 9

1. Conduct is repetitive in nature
   
   • Ex: abusive debt collection practices repeated daily
2. D is a common carrier (airline) or innkeeper (hotel)
   
   • These types of businesses are held to a hire standard of courtesy to their customer
3. P is a member of a fragile class of persons
4. If D had prior knowledge of a particular emotional sensitivity by the P, exploiting that is outrageous (it is outrageous to push somebody’s buttons)

Question 10

Exception to when an insult would be enough to be outrageous:

Answer 10

P is a member of a fragile class of persons

• Insults are outrageous to these classes (pick on someone your own size)

Question 11

Fragile Classes of Persons

Answer 11

1. Young children
2. Elderly
3. Pregnant women
   
   • You would have to know the woman is pregnant

Question 12

Requisite Intent for IIED

Answer 12

Recklessness is sufficient

Question 13

Proof of Severe Distress

Answer 13

• No specific evidence required
• P can prove however he wants
• Do not have to prove specific symptoms

Question 14

Causation in Bystander Cases for IIED

Answer 14

When the D intentionally causes physical harm to a 3rd person and the P suffers sever emotional distress because of it, the P may recover by showing either the PFC for emotional distress or that:

1. she was present when the injury occured
2. she is a close relative of the injured person, and
3. the D knew the facts of 1 and 2.

Question 15

Damages for IIED

Answer 15

• IIED is the only intentional tort where damages is required
• Actual damages (severe emotional distress), not nominal, are required
• Proof of physical injury is not required
  
  • the more the outrageous conduct, the less proof of damages is required

Question 16

Privacy COAs

Answer 16

1. Appropriation of Ps Picture or Name
2. Intrusion on Ps Affairs or Seclusion
3. Publication of Facts Placing P in False Light
4. Public Disclosure of Private Facts About P

Question 17

The Extent of the Right of Privacy

Answer 17

1. right of privacy is a personal right and does not extend to members of a family
2. does not survive after the death of the P
3. not assignable
4. not applicable to corporation

Question 18

Privacy COA Defenses

Answer 18

1. Consent
   
   1. Express
   2. Or implied
2. Absolute and qualified privilege defeat:
   
   1. False light
   2. And disclosur

Question 19

Intentional Misrepresentation COA

Answer 19

1. Misrepresentation of a material past or present fact
2. Scienter - she knew or believed it was false or that there was no basis for the statement
3. Intent to induce P to act or refrain from acting in reliance upon misrepresentation
4. Causation (actual reliance)
5. Justifiable Reliance; and
6. Damages (P must suffer actual pecuniary loss)

Question 20

When there a General Duty to Disclose Material Fact under Intentional Misrepresentation?

Answer 20

1. D stands in a fiduciary relationship to the P
2. D is selling property to P and knows that the P is unaware of, or cannot reasonably discover, material info about the transaction; or
3. D has spoken and her utternance decieves the P

Physical concealment of a material fact may also constitute a misrepresentation.

Question 21

Negligent Misrepresentation PFC

Answer 21

1. Misrepresentation by D in a business or professional capacity
2. Breach of duty owed toward the P
3. Causation
4. Justifiable reliance; and
5. Damages

This is usually made in the commercial setting

Question 22

Negligent Infliction of Emotional Distress (NIED)

Answer 22

• Negligent D who does not inflict bodily trauma on P, but leaves P with emotional trauma
• Need two tiers of analysis:
  
  1. Establish you have a negligent D
     
     • Articulate another standard of care
  2. Show a breach

Once analysis is proven, then can get to NIED claim: 3 alternative scenarios

Question 23

3 NIED Scenarios

Answer 23

1. A near miss case
2. Bystander Claim
3. The relationship cases

Question 24

NIED: Near Miss

Answer 24

• D does not physically harm, but almost does (close call)
• 2 reqs to recover
  
  1. P has to show Ds negligent act placed the P in a zone of physical danger
  2. You also must suffer subsequent physical manifestations (not mental)
     
     • Ex: Heart attack

Question 25

NIED: Bystander Claim

Answer 25

* D will badly injure or kill a 3rd party - the P is emotionally distraught from witnessing * P has to show 1. You and the injured/killed 3rd party are family members with a close relationship * Spouse/parent/child 2. You must be a contemporaneous witness * You have to see the injury to the 3rd party as it happens

Question 26

NIED: Relationship Cases

Answer 26

* Arises with a business or commercial relationship * There is a high probability that careless performance will produce emotional distress * Ex: Medical patient/lab; customer/funeral parlor

Question 27

Res Ipsa Loquitor

Answer 27

* happens when P lacks info about what the D did wrong Have to Show 1. Accident is one of a type normally associated with negligent conduct * Appeal to statistics 2. And an accident of this of type would normally be due to the negligence of someone in this Ds position * Shown through D having control over the injury causing object

Question 28

Strict Liability for Abnormally Dangerous Activities Test:

Answer 28

1. Activity creates a serious risk of foreseeable harm even when reasonable care is being exercised; and * Cannot be made safe with existing tech 2. The activity is not common within the community for which it is done * Ex: Crop dusting in SF SAFETY PRECAUTIONS ARE IRRELEVANT

Question 29

Activites that are Abnormally Dangerous for Strict Liability

Answer 29

1. Blasting 2. Dealing w highly toxic chemical or biological material 3. Anything involving high quantities of radiation and nuclear energy (not X-ray machine)

Question 30

Private Nuisance

Answer 30

subtantial (or unreasonable) interference with a person's use or enjoyment of the land

Question 31

What is substantial (and not) and unreasonable interference for private nuisance?

Answer 31

* substantial = offensive, inconvenient or annoying to an average person in the community * not substantial if injury is merely a result of the P's hypersensativity or specialized use of the property * unreasonable is where the severity of the injury outweighs the utility of the D's conduct

Question 32

Public Nuisance

Answer 32

an act that unreasonably interferes with the health, safety or property right of the community