Torts

Question 1

Automobiles

Answer 1

An owner of an automobile is vicariously liable for the negligent acts of his agents or members of his family when using the auto for “family purposes.”

Question 2

Attractive nuisance

Answer 2

1. Kid too young 2. Foreseeable 3. D knows danger 4. Artificial 5. Risk outweighs utility. Duty arises when D knows or reasonably should know of an unreasonably dangerous artificial condition on his property (like known trespassers).

Question 3

Private nuisance

Answer 3

substantial and unreasonable interference with a plaintiff’s use and enjoyment of her land. To recover in a nuisance action, the interference with a plaintiff’s use and enjoyment must be “substantial,” that is, it must be offensive, inconvenient, or annoying to an average person in the community. OJO liability only to possessor.

Question 4

Intrusion into seclusion

Answer 4

intentional interference (offensive to reasonable person) w. sphere of privacy, no publication requirement → ED & punitive

Question 5

Commercial appropriation

Answer 5

intrusion ok but wants compensation OJO! Must be for profit, not news

Question 6

Public disclosure of private true facts

Answer 6

1. Disclosure 2. Private facts 3. Highly offensive to reasonable person 4. Not news  need publication  can get injunction OJO too much time or if got from public records then won’t lie

Question 7

False light

Answer 7

defamation but not reputation harming 1. Pub 2. False 3. Highly offensive 4. Some level of fault. If media defendant, need actual malice.

Question 8

Public nuisance

Answer 8

an unreasonable interference with a right common to the general public. factors include: (1) whether the conduct significantly interferes with the public health, safety, peace, comfort, or convenience; (2) whether the conduct is proscribed by a statute, ordinance, or administrative regulation; and (3) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.

Question 9

Torts of an independent contracter

Answer 9

Generally not liable. Yes in two instances. 1. where a contractor engages in inherently dangerous activities (any activity as to which there is a high degree of risk in relation to the particular surroundings, recognizable in advance as requiring special precautions.) Examples include fumigating with poisonous gases, using explosives in an urban setting, etc. 2. where contractor does a duty that law does not permit to be delegable

Question 10

Wrongful Death v. Survivor Statute

Answer 10

WD is a tort brought by the heirs of a decedent; Survivor Statute allows the estate to maintain the decedent’s cause of action, becomes asset of the estate

Question 11

Trespass to Chattels

Answer 11

intentionally dispossessing another of the chattel or by using or intermeddling with a chattel in the possession of another. A plaintiff must generally prove damages in the actual amount caused by the tortious conduct, or in the case of dispossession, by the loss of use.

Question 12

Indemnification

Answer 12

indemnification shifts the entire loss from the party who was found liable to the actual wrongdoer who was primarily responsible for the harm. so e.g. if one tortfeasor is intentional while the other merely negligent, the intentional may be liable for all damages under an indemnification theory. or if one was vicariously liable.

Question 13

Types of vicarious liability

Answer 13

• employer/ee
• indep. contractor
• joint enterprise
• owner/driver of auto
• parent-child
• bailor/ee
• tavernkeepers

Question 14

Joint enterprise liability

Answer 14

for partners and joint venturers - liable for each others torts if committed in course/scope of partnership/joint venture

Question 15

Checklist for intentional torts

Answer 15

 voluntary act: conscious & willed
 intent: 1. Desired consequences OR 2. Knew substantially certain
 NO proximate cause: liable to full extent
 harm: establish elements, OR spec. injury needed?

Question 16

Battery

Answer 16

1. Intent
2. Harmful/offensive contact (to reasonable person or knows of susceptibility)
3. With P or sth closely related (need not know at time)
   NO proof of harm needed

Question 17

Assault

Answer 17

1. Intent
2. Reasonable apprehension (must be aware, reasonable)
3. Of immanent battery
   NO proof of harm needed

Question 18

False Imprisonment

Answer 18

1. Intent (NO motive)
2. Confinement (bounded area, by force or threat of, no reasonable means of escape, embarrassment unreasonable)
3. Against P’s will
4. P knew or if not was injured – elements OR spec. injury needed

Question 19

Intentional Infliction of Emotional Distress

Answer 19

1. Intent/reckless (conscious disregard of high risk – no transferred intent but may be reckless for 3rd party plaintiff)
2. Extreme and outrageous conduct (exceeds all bounds OJO! common carriers just reasonably offensive, supervisors)
3. Causation (basketcase b4?)
4. Severe emotional distress (nontrivial, not transitory/shortlived)
   FOR a 3rd party: if D IIED’d 1. Immediate family member and present → no harm req. OR 2. Anyone present → prove physical

Question 20

Trespass to land

Answer 20

1. Intent
2. Entry (any tangible)
3. P’s land (anyone in possession)
   OJO! Mistake not a defense
   → liable full extent harm + nominal, restitutionary (ejectment), injunction

Question 21

Trespass to chattels v. Conversion

Answer 21

1. Intent (no mistake D) / BFP can be converter
2. Interference / exercising dominion or control and seriously interfering
3. P’s chattel
4. Harm (dispossession, rental value, cost of repair, replevin v. forced sale)

Question 22

Defenses to intentional torts

Answer 22

POPCANS Privilege Others Property Consent Authority Necessity Self-defense

Question 23

Defenses: Consent

Answer 23

 express: manifests willingness (ONLY to extent of consent)

 implied: through conduct (ie sports) scope: what D would reasonably believe was implied consent

Question 24

Defenses: Self Defense

Answer 24

honest & reasonable belief force necessary to prevent immanent harm. Must be proportional. honest but unreasonable can take from murder to manslaughter.
deadly → NO duty to retreat in most jurisdictions, never from the home
OJO! MD duty to retreat before deadly

Question 25

Defenses: of Others

Answer 25

commit tort while protecting victim innocent from harm. OJO if you defend the aggressor: most places honest & reasonable belief still defense, minority step into the shoes

Question 26

Defenses: Authority

Answer 26

 arrest: Felony IF reasonably believes P committed Misd (but NOT if breach of peace) (but NOT IF wrong then liable)  shopkeeper’s privilege: reasonable suspicion of shoplifting, IF reasonable time and investigation OJO MD: shopkeeper must have probable cause

Question 27

Negligence: checklist

Answer 27

```  duty  standard of care  breach of duty  cause in fact  proximate cause  damages  defenses ```

Question 28

Duty: Define and general lack of

Answer 28

whether law imposes legal obligation on D toward P. If D's affirmative risk creating behavior caused injury, then has duty to foreseeable P. In general NOT when: nonfeasance, damage other than personal or property

Question 29

Duty: Exceptions to Nonfeasance Lack of Duty

Answer 29

 misfeasance: affirmative risk creating OR negligent omission EG negligent entrustment  rescue: duty where (1) where D’s tortious conduct creates need for rescue, D must affirmatively rescue (2) where D starts to rescue must act reasonably, worse position v. gross negligence (3) rescue creates reliance  special relationship of dependence, incl. common carriers  control 3rd parties (1) special relationship if know dangerous propensity duty to warn others parent/prison/psych (2) Dram Shop Acts (NOT IN MD): if seller of booz knew/should have that intoxicated & driving (3) negligent entrustment knew/should have that couldn’t handle e.g. explosives  duty to protect (1) special rel. (LLT, business) (2) high foreseeability (proof of previous) → take affirmative steps (e.g. lights in hallway)

Question 30

Duty: Government as D

Answer 30

 IF proprietary function same as private  IF discretionary function no duty  IF ministerial govt has duty to do it right  IF sued for inadequate response to performing public duty (e.g. police, fire) won't be liable UNLESS 1. Reliance on response of govt 2. Special relationship OR 3. Agency increased danger  utility ONLY liable if contractual relationship

Question 31

Duty: Land possessor

Answer 31

(NOT just owners)  invitee: there w. consent & beni to possessor → reasonable care (includes searching out dangers)  licensee: w. consent, no beni → warn of known concealed dangers  trespassers there w.o consent → no infliction of willful/wanton harm. OJO! IF known, warn of known artificial dangers  artificial activities: duty of reasonable care (warn of known dangers) to everyone including Ps adjacent to land except unknown trespassers  attractive nuisance: 1. Kid too young 2. Foreseeable 3. D knows danger 4. Artificial 5. Risk outweighs utility  MD  LL-T ONLY 1. Common area (control) 2. Negligent repairs 3. Known hidden dangerous defect 4. If knows T will open to public, reasonable care to discover defects

Question 32

Standard of Care: Define and General questions

Answer 32

measure of duty owed. Reasonably prudent person under same/similar circumstances 1. what’s the conduct 2. Probability of harm 3. What likely injury 4. What burden to act differently 5. Customary conduct

Question 33

Standard of Care: What is considered

Answer 33

YES: physical conditions (blind), emergency not of D’s making NO: clumsy, insane, stupid KIDS: reasonable of same age, experience, intelligence (subj and obj) OJO! Engaged in adult/inherently dangerous activity then treated as adult PROFESSIONALS: : where extra training/skill, must use customary practice of profession  drs typical skill w. national standard OJO! Must divulge all material risks reasonable patient → malpractice  legal: cause in fact issue P has to prove would have one lawsuit

Question 34

Standard of Care: Per Se

Answer 34

``` apply crim/other law to tort context 1. P of the class to be protected 2. harm the statute protects against (MD ONLY EVIDENCE OF BREACH) NOT if  more dangerous to comply with statute  emergency  licensing statute ```

Question 35

Breach: Define and Examples

Answer 35

failure to meet standard. Show every element by a preponderance  slip and fall: D business negligent in failing to discover and failing to fix BUT NOT if not there long enough  RIL: 1. Kind of thing prob result of neg 2. D control over harm causing instrumentality (prob, not exclusive) 3. P didn’t contribute

Question 36

But for Causation: Define and four peculiar problems

Answer 36

connect breach to injury, more likely than not.  multiple Ds → substantial factor, use where either alone would have caused the harm so neither but for, joint/several liability  loss of chance → more likely than not if diagnosis had been correct would have preserved X% chance of survival  alternative liability theory: 1. Few Ds 2. Each neg 3. All before court → burden to Ds to show NOT the cause, jt/several (e.g. doctors when patient unconscious)  market share: generic product, can’t tell which D, all neg → several liability

Question 37

Proximate cause: When unforeseeable...

Answer 37

 extent of harm: liable for all of it, take victim as find him  type of harm: 1. What makes D’s conduct neg 2. Is harm of the type foreseeable? → liable  manner of harm:  superseding = so culpable as to break chain  subsequent neg conduct foreseeable (drs, god, int tort, etc.) OJO!! Unforeseeable plaintiff is a DUTY issue, NO DUTY TO THE UNFORESEEABLE PLAINTIFF

Question 38

Negligence Damages

Answer 38

 compensatory: return to pre-injury state 1. Foreseeable type 2. Reasonably certain 3. Unavoidable (ie no mitigation problem)  special: measurable  general: pain and suffering etc.  collateral source: don’t beni from insurance policy  avoidable consequences: must take reasonable steps to mitigate OJO! punitive NEVER recoverable: must have willful wanton reckless malice conscious disregard + high prob of harm

Question 39

Negligence Defenses: List

Answer 39

- contributory negligence (last clear chance) - comparative fault (pure) - assumption of risk - avoidable consequences

Question 40

Negligence Defenses: Cont. Neg. v. Comparative Fault

Answer 40

CN: P’s conduct unreasonable & contrib. to P’s harm → any fault is bar to recovery. BUT if D had last clear chance (1. D knew of P’s neg 2. D could by ordinary care avoid accident 3. D’s neg failure was after P’s neg) THEN D liable. OJO! MD is CN + last clear chance pure CF: P recovers % D’s fault (MBE) modified CF: if P is >= 50%, can’t recover → jt/several liability for D portion

Question 41

Negligence Defenses: Assumption of Risk

Answer 41

P oral/written relieves D of duty of care 1. P knew of the risk 2. P understood the risk 3. P confronted risk voluntarily OJO! Subjective ie intoxication matters, may bar defense. OJO professional rescuers can’t recover OJO! Only negligence

Question 42

Strict Liability: Categories

Answer 42

 animals wild: liability if injured by characteristic of animal. Domestic: only liable if know/should have of dangerous propensity (MD must confine “dangerous dog” has killed/injured a person or municipal determination) OJO! unknown trespassers can't recover in SL for domestic animals  abnormally dangerous activity: 1. Inevitable high risk 2. Not an ordinary activity OJO! must be the type of harm that makes the activity dangerous OJO in MD only land owners SEE ALSO products liability  defenses ONLY assumption of risk OJO in MD also contributory negligence

Question 43

Products Liability: Strict

Answer 43

 proper plaintiff: any user/consumer/bystander  proper defendant: anyone in mkting chain, NOT occasional seller  proper context NOT service (predominant test)  defect: SEE OTHER CARD  but for AND proximate cause OJO! Learned intermediary e.g. Doctor assume they pass warning to patient → superseding  damages: personal or property BUT NOT lost profits unless incidental to the others, NOT damage to product itself, otherwise sue on warranty OJO MD DIFFERENT  defenses: 1. misuse (unintended & unreasonable) 2. alteration (unforeseeably) 3. assumption of risk

Question 44

Products Liability: Strict, Defects

Answer 44

- manufacturing defect: not way manu intended → 1. more dangerous than ordinary customer would expect OR unintended by manu AND 2. Existed when left D hands - design defect: product line defective. two tests: 1. ordinary consumer expectation test: more dangerous than would expect (MD) 2. risk-utility balancing: likelihood of harm v. avoid/feasible/impact of alts OJO NOT for products of extraordinary social utility and no alts (drugs) - warning inadequate: 1. Reasonably inform reader? 2. Look at language used, placement, size - warning absent: 1. Risks manu knew/should have 2. Gravity and risk of harm

Question 45

Products Liability: Negligence

Answer 45

1. Any foreseeable P 2. Unreasonable conduct of D (NOT product) 3. RIL 4. Negligence defenses (CF/CN, assumption of risk, avoidable consequences)

Question 46

Products Liability: Warranty

Answer 46

only way to recover for harm to product itself OJO! Express → any seller, implied → only merchants

Question 47

Defamation: General Elements

Answer 47

1. Defamatory 2. Publication 3. Libel or Slander? 4. Privileges 5. Constitutional intent standard

Question 48

Defamation: what's defamatory?

Answer 48

makes P subject to scorn or dissuade from dealing w. P in eyes of reputable group NOT if unbelievable or pure opinion EXCEPT if provable OJO! If not named must allege that it's about P; can’t be large group

Question 49

Defamation: What's publication?

Answer 49

1. s/o other than P heard 2. Intentional or negligent disclosure by D OJO! Republication liable

Question 50

Defamation: Slander v. Libel

Answer 50

 libel: permanent → reputational harm presumed, damages don’t have to be proved  slander: oral → must prove special damages EXCEPT if per se: 1. Unfit to perform trade/profession 2. CIMT 3. Current loathsome disease 4. Lack of chastity in a woman (spousal misconduct) OJO MD no presumed damages, even in libel must prove actual damages. BUT libel per se still easier because injurious as spoken instead of needing to explain context.

Question 51

Defamation: Privileges

Answer 51

- P has to prove falsity. - Absolute: b/w spouses, on House/Sen floor, b/w high Exec officials, judicial proceedings - Qualified priv. if 1. Info affects important interest of D and 2. Recipients knowledge will facilitate protection → lost if 1. Bad intent, 2. Knows false or 3. Reckless w truth/publication

Question 52

Defamation: Constitutional Intent

Answer 52

- public official: CCE of actual malice (knew false or acted recklessly wrt truth – entertained serious doubts) - Public figure: household names and inject self in particular controversy, same as above - Private person public concern TEST: if D is media or widely disseminated (not exact) → can’t be strict liability, must have actual malice to get presumed (general) or punitive damages - Private person private concern → we don’t know except malice not required

Question 53

Economic torts

Answer 53

- intentional misrepresentation - negligent misrepresentation OJO MD requires that duty of care arises from intimate nexus between parties - interference with contract relations - interference with prospective economic advantage - injurious falsehood (business defamation - deceptive trade practices MD only

Question 54

Econ Torts: Interference w. K Relations

Answer 54

1. Knows of K 2. Acts w purpose to create breach or make harder to perform

Question 55

Econ Torts: Interference w. Prospective Economic Advantage

Answer 55

1. Knew 2. Acted to interfere for improper motives

Question 56

Econ Torts: Injurious Falsehood

Answer 56

(business defamation) 1. False 2. Actual malice 3. Published 4. Spec. economic injury

Question 57

Wrongful Institution of Legal Process

Answer 57

 malicious persecution crim 1. S.o outside system 2. No PC and bad motive 3. Gets prosecution going 4. Dismissed  abuse of process: intentionally misuses for ulterior motive that damages P (NB P doesn’t have to prevail) OJO in MD must prove special damages

Question 58

Duty: Non personal/property damage

Answer 58

- NIED - wrongful conception - wrongful birth - wrongful life (doesn't lie)

Question 59

Duty: NIED

Answer 59

- direct 1. Negligent conduct 2. In zone of danger 3. Physical manifestation OJO! Death telegram, corpse - bystander 1. Present 2. Close relationship 3. Sometimes zone of danger

Question 60

Duty: Wrongful conception OR birth

Answer 60

 wrongful conception: healthy but unwanted child → costs associated w. birth, none other  wrongful birth: Dr failed to diagnose defect → special offenses b.c of condition OJO wrongful life (child sues for existing) will not lie

Question 61

MD Damages Limits

Answer 61

for personal injury or wrongful death: noneconomic no more than $500,000 and going up by year starting 1995

Question 62

MD Nuisance per se vs. per accidens

Answer 62

at all times under all circumstances vs. becomes a nuisance because of location, manner of operation, etc.