Torts

Question 1

Elements of Intentional Torts

Answer 1

1. Voluntary Act
2. Intent
3. Causation
4. Harm
5. Lack of privilege or defense

Question 2

Transferred Intent

Answer 2

If D acts with the necessary intent to inflict certain intentional torts against P, but causes injury to V, then D’s intent is transferred to V. (Only applies to battery, assault, false imprisonment, and trespass)

Question 3

Intent

Answer 3

D either desires to cause harmful result or knows with substantial certainty that it will come about

Question 4

Battery

Answer 4

1. Intent (desire to cause contact or know that such contact is substantially certain to occur)
2. Harmful or offensive contact
3. To the person or something physically closely connected to person
   (P doesn’t have to show injury)

Question 5

Assault

Answer 5

1. Intent (act with desire to cause an immediate harmful contact or the apprehension of such contact or know that such a result will occur)
2. Reasonable apprehension
3. Imminent battery

Question 6

False Imprisonment

Answer 6

1. Intent (desire to confine or restrain or know that such confinement is certain to result)
2. Confinement to a bounded area
3. Against P’s will
4. P is aware of the confinement or injured by it

Question 7

Intentional Infliction of Emotional Distress

Answer 7

1. Intentional or Reckless conduct
2. Extreme or outrageous conduct
3. Severe emotional distress (greater than reasonable person would expect to endure)

Question 8

Trespass to Land

Answer 8

1. Intent (D entered or caused something to enter or knew that land entry was substantially certain to result)
2. Entry
3. On P’s land

Question 9

Remedies for Trespass to Land

Answer 9

Damages: Nominal damages or punitive damages if D causes injury
Ejectment: P must prove (1) legal title (2) right to possession (3) wrongful possession by D
Mesne Damages: Compensates the loss of use of the land/benefit received by the wrongful possessor, whichever is greater

Question 10

Trespass to Chattels

Answer 10

1. Intent (D interferes with P’s chattel)
2. Interference
3. P’s chattel
4. Actual damages (including loss of use of the chattel)

Question 11

Remedies for Trespass to Chattels

Answer 11

Cost of repair, fair market value, and potentially punitive damages if D is a bad actor
Replevin-get back the chattel

Question 12

Conversion

Answer 12

1. Intent
2. Dominion and control
3. Destruction or serious and substantial interference

Question 13

Remedies for Conversion

Answer 13

Forced sale (market value at time converted)
Replevin

Question 14

POPCANS

Answer 14

Privilege 
Others (defense of)
Property
Consent 
Authority 
Necessity 
Self-Defense

Question 15

Defense of Property

Answer 15

Can use reasonable force; never deadly force

Question 16

Shopkeeper Privilege

Answer 16

Not liable for false imprisonment if they had a reasonable suspicion that P stole. Can detain for a reasonable period in a reasonable manner on the premises/immediate vicinity.

Question 17

Self-Defense

Answer 17

D honestly and reasonably believes that she used reasonable force to prevent P from engaging in an imminent and unprivileged attack. D needs to use reasonable and proportionate force.

Question 18

Duty to Rescue

Answer 18

No duty to rescue, unless

1. D’s tortious conduct created the need to rescue
2. Rescuer undertook rescue and now must act reasonably
3. Special relationship

Question 19

Special Relationships

Answer 19

1. Employer employee
2. Common carrier/innkeeper customer
3. School student
4. Parent child
5. Business patron
6. Jailer prisoner

Question 20

Duty to Control 3rd Parties

Answer 20

There is no duty to control 3rd parties unless a special relationship exists

Question 21

Dram Shop Acts

Answer 21

Imposes liability on establishments when they know, or should know, a patron is drunk and that person drives while intoxicated and harms a 3rd party

Question 22

Negligent Entrustment

Answer 22

When D gives something dangerous to someone D knows, or should know is not competent to handle it

Question 23

Duty to Protect

Answer 23

There is no duty to protect another person from 3rd party criminal conduct, unless a special relationship exists and some jurisdictions require prior similar incidents that make criminal conduct foreseeable

Question 24

D as Gov

Answer 24

• If gov is acting in private area then it is treated as any other D for duty analysis
• If gov is using judgment and allocating resources then it doesn’t owe a duty
• If gov is exercising ministerial functions then it has a duty once it has undertaken to act

Question 25

Public Duty Doctrine

Answer 25

Courts find no duty when police.firefighters fail to provide an adequate response, unless there is a special relationship or the agency increased the danger beyond what would otherwise exist

Question 26

Negligent infliction of Emotional Distress

Answer 26

1. D engages in negligent conduct 2. P was in the zone of danger 3. P suffers emotional distress AND 4. P suffers some sort of physical manifestation of that distress Exception: misinformation about loved one or mishandling of corpse

Question 27

Wrongful Conception, Birth, and Life

Answer 27

Courts will usually only award damages for wrongful conception due to the doctor's failure to properly conduct a contraceptive operation and damages only cover the cost of birth and to fix ineffective birth control

Question 28

Invitees

Answer 28

D has duty to exercise reasonable care to prevent injuries caused by activities conduct on D's land

Question 29

Licensees

Answer 29

D has duty to warm of known concealed dangers

Question 30

Trespassers

Answer 30

D has duty to avoid infliction of willful or wanton harm

Question 31

Activities on Land

Answer 31

D has a duty of reasonable care to all except trespassers. For invitees D has a duty to reasonably search out dangers on the property

Question 32

Frequent Trespassers

Answer 32

D has a duty to warn of concealed dangerous artificial conditions

Question 33

Child Trespassers

Answer 33

The child will be treated as an invitee if: 1. too young to appreciate the danger 2. D knows, or has reason to know, of trespass 3. D knows of dangerous condition 4. Condition is artificial 5. Risk of danger of the artificial condition outweighs it utility and burden to fix

Question 34

Duty Held by Landlord's

Answer 34

Landlord generally not liable, unless: 1. Common area over which LL retains control 2. Negligent repairs 3. At time of lease, LL knows of concealed dangerous condition 4. LL knows that T is going to hold property open to public

Question 35

P not on Land

Answer 35

D must exercise reasonable care to prevent a P not on his land from an injury deriving from D's activities and from unreasonably dangerous artificial conditions that protrude onto adjacent land

Question 36

Reasonably Prudent Person

Answer 36

Objective standard that only accounts for physical conditions, such as blindness, deafness, or amputee, and emergencies not created by D.

Question 37

Children

Answer 37

Was D's conduct reasonable according to what a child of the same age, experience, education, and intelligence would have done?

Question 38

Negligence Per Se

Answer 38

1. P is a member of a class the law aimed to protect AND | 2. Injury caused by D's conduct is the type the statute sought to protect

Question 39

Professionals

Answer 39

Specialists-National Standards | General Practitioners-Locality Standards

Question 40

Standard of Materiality

Answer 40

Doctors must divulge all material risks, risks that a reasonable patient would want to know in deciding whether to undergo the procedure. Failure to divulge material risk is malpractice if P can show he would have refused the procedure if risk was disclosed.

Question 41

Res Ipsa Loquitur

Answer 41

P needs to show: 1. This sort of thing doesn't occur absent negligence 2. D is probably responsible because D had control over instrumentality of harm. 3. P didn't contribute to injury

Question 42

Damages

Answer 42

1. Personal injury and property damages 2. Compensatory damages (damage must be foreseeable, must be reasonably certain, and not avoidable) 3. Special damages (medical costs, lost wages, cost of repair) 4. General damages (pain and suffering) 5. Punitive damages (D must be more culpable than just negligent)

Question 43

Pure Comparative Fault

Answer 43

P can recover no matter how much at fault. Subtract out P's percentage of fault.

Question 44

Modified Comparative Fault

Answer 44

P cannot recover if at fault.

Question 45

Assumption of Risk

Answer 45

1. P knew of an appreciated the nature of the risk 2. Appreciated the specific danger that injured him, and 3. Voluntarily chose to subject himself to that danger

Question 46

Manufacturing Defect

Answer 46

P must show the product is more dangerous than a consumer would reasonably expect when using the product in its intended manner or it is in a condition not intended by the manufacturer and defect existed when leaving manufacturer's hands

Question 47

Ordinary Consumer Expectation Test

Answer 47

Product is more dangerous than would be contemplated by the ordinary consumer who possesses ordinary knowledge common to the community

Question 48

Risk-Utility Balancing

Answer 48

Jury determines whether the danger the design threatens outweighs its utility to society. Product will be found defective if an alternative design could have reduced the danger at about the same cost.

Question 49

Warnings

Answer 49

Does the warning reasonably inform a reading of the risks and how to reduce them? Should have D warned at all?

Question 50

Defamation

Answer 50

1. Defamatory message 2. Publication 3. Public official must prove actual malice

Question 51

Slander per se

Answer 51

1. imputes to P behavior or characteristic that are incompatible with the proper conduct of P's business, profession, or office 2. Imputes to P commission of a crime involving moral turpitude or infamous punishment 3. Allegations P has a loathsome disease 4. Imputing lack of chastity on a woman

Question 52

Intentional Misrepresentation

Answer 52

1. Intentional material misrepresentation by D 2. of past or present facts 3. made with knowledge 4. on which P justifiably relies to P's economic detriment

Question 53

Negligent Misrepresentation

Answer 53

1. negligent material misrepresentation by D 2. of past or present facts 3. made without knowledge of truth or falsity 4. on which P justifiably relies to P's economic detriment * No duty to avoid negligent misrepresentation for pure economic loss

Question 54

Injurious Falsehood

Answer 54

1. False statement 2. Actual malice 3. Made to another or published 4. Causing specific economic injury to P