Torts

Question 1

Intentional Torts: General Considerations

Answer 1

• To establish a prima facie case for intentional tort, the plaintiff must prove:
   Act by defendant
   Intent by defendant
   Causation
• Assume plaintiff is a reasonable person and not hypersensitive
• No incapacity defenses for intentional torts- minors, insanity, intoxication
• Transferred intent: still liable regardless of the tort or person- intends to commit a tort against one person but instead: commits a different tort, same tort different person, or different tort against a different person
• WISCONSIN: intent must be found in act and in harm and liability requires:
   Intent
   Unlawful, wrongful conduct
   Causation, and
   Harm- actual injury or invasion of right

Question 2

IT: Battery

Answer 2

• Elements:
  1) Harmful of offensive contact
  2) With the plaintiff’s person

Question 3

IT: Assault

Answer 3

Elements
1) Reasonable apprehension because of act- see it coming
2) Of an immediate battery

Question 4

IT: False Imprisonment

Answer 4

Elements:
1) Confines or restrains
2) To a bounded area

Question 5

IT: Intentional Infliction of Emotional Distress

Answer 5

• Elements:
  1) Extreme and outrageous conduct
  2) Suffer severe emotional distress
  Damages required

Question 6

IT: Trespass to Land

Answer 6

Elements:
1) Physical invasion
2) Of plaintiff’s real property

Question 7

IT: Trespass to Chattels: Little harm

Answer 7

Element: Interferes with the plaintiff’s right to possession in a chattel
- Types:
1) Intermeddling: directly damaging the property
2) Disposition: depriving right of possession of the chattel
- Actual Damages not required

Question 8

IT: Conversion: Big Harm

Answer 8

Elements:
1) Interferes with the plaintiff’s right of possession
2) Degree of intereference is serious enough to pay the full value of the property

Question 9

Defenses: Types

Answer 9

Consent
Protective Defenses
- Self-Defense
- Defense of Others
- Defense of Property
Necessity

Question 10

Defenses: Consent

Answer 10

• Capacity: children, intoxicated and there is limited capacity for older children (can consent to wrestling) and mild intellectual disabilities- haircuts
• Express consent: D is not liable if the p expressly consents either oral or written, exceptions:
  1) Mistake if the d knew and took advantage
  2) Fraud- will be invalidated if it is to an essential matter but not collateral matter
  3) Duress- unless is future threats of future action
• Implied Consent: which a reasonable person would infer from custom and usage or the plaintiff’s conduct
  1) Social custom or usage: engage in activity- playing team sports
  2) Consent Implied by Law: when action is necessary to save a life or other important interest in person or property
  3) Objective Conduct and Circumstances/body language: shaking hands, or sexual conduct
• Scope: must be in scope of consent- if express consent for knee surgery cannot give nose job

Question 11

Protective Defenses: Self, Others, Property

Answer 11

• Elements:
  1) Responses from a perceived threat
  2) Must be in progress or imminent – no preemption
  Types:
  1. Self Defense: No duty to retreat- modern trend is duty to retreat unless in home, Not available to the initial aggressor, May not extend to third party injuries
• Reasonable mistake to the existence of danger is allowed
• Force only reasonably necessary
  2. Defense of Others: when you reasonably believe that the other person could have used force to defend themselves
  3. Defense of Property: request to desist or leave must be first made unless dangerous, can use hot pursuit and chase them

Question 12

Shoplifting

Answer 12

• Must be reasonable belief to fact of theft
• Reasonable manner and
• Detention for a reasonable period of time

Question 13

Defense: Necessity

Answer 13

• Only a defense to property torts
• Public: if they act to avert an imminent public disaster
• Private: when action was to prevent serious harm to a limited number of people

Question 14

Negligence: Elements

Answer 14

1) Duty to conform to a specific standard of conduct
2) Breach of duty
3) Actual and Proximate cause
4) Damages

Question 15

Duty: Specific

Answer 15

• Duty is owed to all foreseeable plaintiffs- in the zone of danger if far away they will not win depending on the activity
• WISCONSIN: duty of care to avoid unreasonable risk of harm is owed to the world at large and not just foreseeable plaintiffs
• Specific:
   Rescuers: foreseeable plaintiff when the defendant negligently put themselves in danger- danger invites rescue
   Firefighters Rule: barred from recovering for injuries caused by the inherent risks of their jobs
   Prenatal: duty is owed to viable fetus
   Intended Beneficiaries of Economic Transactions: third party for whose economic or legal transaction was made—beneficiary of will

Question 16

Duty: General

Answer 16

The Reasonably Prudent Person Under Circumstances
 Objective standard measured against what an average person would do, minimum level of care- mental deficiencies are not excuse- based on average person **WILL TEST ON NONAVERAGE- not the best that individual person can but the average person
 Imaginary fiction and a squishy question for the jury
 Exceptions:
1) Superior Skill or Knowledge
2) Physical Characteristics: considered to have the same physical characteristics as the defendant if those physical characteristics are relevant to the claim

Question 17

Special Negligence: Children

Answer 17

• Under age 5: cannot be held liable for negligence WISCONSIN: age 7
• Ages 5-18: Held to standard of a child of similar age, intelligence and experience
• Subjective test
• If child is engaged in adult activity, reasonably prudent person standard- operating vehicle or watercraft, farm equipment, snowmobiles, UTEs

Question 18

Special Negligence: Professionals

Answer 18

• Required to possess the knowledge and skill of an average member of the profession or occupation in good standing
• Drs: national standard of care
• Duty to Disclose: risks of treatment to enable a patient to give informed consent

Question 19

Possessors of Land: Traditional & Wisconsin

Answer 19

• Traditional rule: duty owed on the premises for dangerous conditions on the land depends on status of plaintiff
  Wisconsin:
• Abrogated CL distinctions of licensees and invitees- landowner owes duty of ordinary care to all who enter
• Safe Place Statute: rather than creating distinct cause of action, establishes a duty greater than ordinary care. Employers and owners of businesses have the duty to 1) construct, 2) repair, and 3) maintain a safe place of employment
• Standard of Care: Owner of property or business is liable for injuries caused by structural defect regardless of whether they knew or should have known the defect existed.

Question 20

Possessors of Land: Unknown & Known

Answer 20

Unknown Trespassers: No duty is owed to an undiscovered trespasser- thus they always lose
Known Trespassers: Discovered or anticipated trespassers- land owner must warn of or make safe any conditions that are all: [known, man-made death traps]
 Artificial
 Highly dangerous
 Concealed, and
 Known to the land possessor

Question 21

Possessors of Land: Licensees

Answer 21

One who enters the land with the owners permission for their own purpose or business, rather than for the owner’s benefit
- Examples: Social guests, firefighters, police (not w/risks that are inherent in job)
- Duty to warn or make safe hazardous conditions that are: [reasonable known traps]
1) Concealed
2) known to the land possessor in advance

Question 22

Possessors of Land: Invitees

Answer 22

Enter onto the land in response to an invitation by the possessor of the land or if land is held open to the public: provides financial benefit to owner, businesses, museums
- Will lose status as an invitee if they exceed the scope of their invitation
- Duty regarding hazardous conditions that are [reasonably knowable traps]
1) Concealed
2) Known or should have been known

Question 23

Possessors of Land: Trespassing Children

Answer 23

Attractive nuisance doctrine: duty to avoid a reasonable risk of harm to children caused by dangerous artificial conditions on their property, must show:
 Dangerous condition that owner should be aware of
 Know that children might trespass on land
 Condition is likely to cause injury
 Expense of remedying the situation is slight compared to magnitude of risk

Question 24

Possessors of Land: Users of Recreational Land

Answer 24

• Landowner who permits the general public to use their land without charging a fee is not liable for injuries suffered by a recreational user unless the landowner willfully and maliciously failed to guard or warn against the dangerous activity
• Wisconsin: Does not apply if organized sports activity was sponsored by the owner or the owner collects more than $2,000 for use of property during the year

Question 25

Possessors of Land: Duty to those Off Premises

Answer 25

• Generally no duty to protect someone off premises from natural conditions
• Is duty for unreasonable dangerous artificial conditions or structures abutting adjacent land

Question 26

Possessors of Land: Duties of Lessor/Lessee

Answer 26

• Lessee has a general duty to maintain the premises
• Must warn of existing defects of which they are aware or have reason to know and which are concealed to the lessee
• If they repair themselves and are negligent, they are liable
• Guest of tenant: landlord may be liable, and also the tenant because they are an owner occupier

Question 27

Possessors of Land: Duties of Vendor of Reality

Answer 27

• Must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or should have known of

Question 28

Negligence Duties: Statutory Standards of Care

Answer 28

Negligence Per Se: Clearly stated duties imposed by statutes and provides criminal penalties, or fines for regulatory offenses, Establishing requires:

May replace CL duty if:
1) Plaintiff is within the protected class- e.g. pedestrians & motorists, students, patients, customers
2) Statute was designed to prevent the type of harm suffered

Question 29

Affirmative Duties to Act

Answer 29

• Generally one does not have an affirmative duty to act- baby on the train tracks
• Exceptions:
  1) Special relationship between parties
  2) Peril due to own conduct: assist someone they placed in peril
  *Good Samaritan Statutes: many states have protected drs. nurses from liability for ordinary but not gross negligence
  Wisconsin: anyone who renders aid in good faith is protected from liability
• Duty to Prevent Harm from Third Persons: no duty to prevent injury to another unless you have the actual ability and authority to control a person’s actions and knows that person is likely to commit acts that would require this control

Question 30

Other Particular Standards

Answer 30

• Common Carriers & Innkeepers: held to very high degree of care- liable for slight negligence if plaintiff is a passenger or guest
• Auto Driver to Guest: ordinary duty of care, Guest statute states: liable to nonpaying passengers only for reckless tortious conduct
• Bailment Duties: bailor transfers- loan car to bailee-
   Bailee duties owed: depends on who benefits: bailor- low standard, mutual- ordinary, bailee high standard
   Bailor duties owed: benefit of bailee: must inform of known defects in chattel, bailment for hire: chattel defects for which they should be aware
• Emergency Situations: must act as reasonably prudent person- Wisconsin: relieves person of liability for actions when they did not create the emergency

Question 31

Infliction of Emotional Distress

Answer 31

Can tack on other claims as a parasitic element of injury damages without need to consider the elements of the emotional distress torts

Question 32

Near Miss Cases

Answer 32

when the d creates a foreseeable risk of physical injury to the p, must satisfy
1) P was in zone of danger
2) Suffers physical symptoms from distress

Question 33

Bystander Cases

Answer 33

Grief- Bystander outside of the zone of danger who witnesses the defendant negligently injuring another, must:
1) Are closely family members- spouse, child, parent
2) Was present at the scene and personally observed the event
*Most states do not require physical symptoms

Question 34

Business Relationships

Answer 34

• Liable for directly causing when the duty arises from the relationship—typically commercial in nature—between the p and d
• Example: doctor’s misdiagnosis that p has terminal illness or HIV, mortuary’s negligent cremation of deceased contrary to instructions

Question 35

Breach of Duty

Answer 35

Breach of duty of care is a question for the trier of fact, may use following theories to prove:

1. CUSTOM OR USAGE: when standard is reasonable prudence, evidence of custom or usage of others may be used to establish how a reasonable person should have behaved under the circumstances
2. VIOLATION OF STATUTE: proof of violation of the statute is conclusive evidence of breach of duty
3. **RES IPSA LOQUITUR

Question 36

Res ipsa loquitur

Answer 36

is a rule of circumstantial evidence that permits, but does not require, an inference of negligence to be drawn by the jury. The doctrine can be applied when there is insufficient proof available to explain an injury-causing event (i.e., plaintiff cannot specify the precaution that the defendant should have taken to prevent the injury), yet the injury is of the type that ordinarily does not occur in the absence of negligence.

Under Wisconsin law, the plaintiff would be entitled to a res ipsa instruction if the plaintiff can (1) establish (either because it is within the common knowledge of laypeople or by expert testimony) that the event causing the plaintiff’s injuries was of the kind that ordinarily does not occur in the absence of negligence, and (2) establish that the agency or instrumentality causing the harm was within the exclusive control of the defendant, (i.e., that the defendant’s negligence probably caused the injury). Most (but not all) Wisconsin decisions specify a third requirement: That the evidence offered is sufficient to remove the causation question from the realm of conjecture, but not so substantial that it provides a full and complete explanation of the event. In Wisconsin, the effect of plaintiff’s negligent contribution to the injury would be incorporated into the comparative negligence analysis and would not necessarily bar recovery.

Question 37

Factual Causation

Answer 37

• Must show both:
  1) Factual Cause: actual cause
  2) Proximate Cause

BUT FOR TEST
- Am act or omission is a factual cause of injury that would not have occurred but for the act or omission
- Applies where several acts—each insufficient to cause the injury alone
- D can refute this by showing p would have still been injured even if the act did not occur- even if…he would have still been injured

SUBSTANTIAL FACTOR TEST
- Several causes bring about injury, and any one alone would have been sufficient to cause the injury or multiple sufficient causes
- Both parties cause harm- one throws cig, one does not put out fire
- Joint and severally liable

UNASCERTAINABLE CAUSES APPROACH
- Applies when there are two acts, one of which causes injury but it is not known which one
- Burden of proof shifts to defendants- each must show that his negligence is not the actual cause
- Both acted negligent, only one caused the harm

WISCONSIN
- P must show the d’s negligence was a substantial factor in causing injury- broad test that eliminates the superseding and intervening cause

Question 38

Proximate Causation: Scope of Foreseeable Risks

Answer 38

• Foreseeable: Liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts
• On exam: call of question will be whether one or both parties are entitled to SJ- should be denied if any issue of foreseeability which is for the jury- unless common sense tells you it is not an issue
• Factors in foreseeability:
  1) Time: usually close- not always
  2) Geographic distance
  3) Prior occurrence- puts you on notice

Question 39

Proximate Causation: Common Foreseeable Intervening Forces

Answer 39

• Liability regardless of further damage- Almost always foreseeable and defendant will be held liable:
   Medical Malpractice
   Negligence of rescuers
   Protection or reaction forces
   Disease or accident created by original injury
• There will be joint liability from the other actor—doctor or good Samaritan—but defendant is still liable for the whole damage not just broken leg, amputation

Question 40

Proximate Causation: Superseding Forces

Answer 40

Intervening forces produce unforeseeable results that break the causal connection between act and injury

Question 41

Damages: Eggshell Doctrine

Answer 41

get all damages suffered even if surprisingly great in scope- take plaintiff as he is
1. Personal Injury: both economic (medical expenses) and noneconomic- pain and suffering
2. Property Damage: reasonable cost of repair or if destroyed, fair market value
3. Punitive Damages: generally not available in negligence but may recover if wrongful or willful, reckless or malicious *Wisconsin: may not exceed twice the amount of compensatory damages or $200,000
4. Nonrecoverable Items: interest and atty fees
5. Duty to Mitigate: must take reasonable steps to seek treatment or mitigate
6. Collateral Source Rule: not reduced bc other sources—insurance

Question 42

Affirmative Defenses

Answer 42

Two types- if they say traditional, apply the first, if not use contributory
- Traditional: If plaintiff knowingly encounters the dangerous situation the recovery is barred
- Contributory Negligence: no defense if the p failed to realize the danger or guard against it- and is a defense if p knew of danger and and had unreasonable conduct that was the cause of the harm
Contributory Negligence:
- P failed to exercise proper care for their own safety in regards to laws and other norms- do not walk and play on phone or jaywalk
- Not a complete bar to recovery
- Trier of fact weighs the p’s negligence and reduces damages accordingly
- Wisconsin: will not bar recovery unless the plaintiff’s negligence is not greater than the defendant

Question 43

Strict Liability: Animals

Answer 43

1) Domesticated Animals:
 not strictly liable for injuries caused by domestic animal unless you have knowledge of the animal’s dangerous propensities
 Not normal characteristic- if you keep a dog that bites
 Does not extend to trespassers- you are not strictly liable
2) Wild Animals
 You are strictly liable if you possess them

Question 44

Stick Liability: Abnormally Dangerous Activities

Answer 44

• Requirements for: Questions on explosive or blasting, transport or handling highly dangerous biological materials, and use of nuclear energy or high dose radiation (not drs or dentists) you will be strictly liable
  1) Activity must be a type that cannot be made safe
  2) even through reasonable care
  3) The activity is not a matter of common activity

Question 45

Strict Liability: Defective Products

Answer 45

• Refers to liability of supplier of a defective product to someone injured by the product
• There are other product liability cases like negligence- do not assume it is strict liability -see below
• Theories of liability a plaintiff may use:
  1. Intent
  2. Negligence
  3. Implied Warranties of Merchantability and Fitness for a Particular Purpose
  4. Representation theories
  5. Strict Liability
• Elements of Strict liability for Defective Products, plaintiff must show:
  1. Must be merchant
  2. Product is defective
  3. Product was not substantially altered
  4. Used in foreseeable use of the product at the time of the injury
• Merchants: not services or casual sellers but does includes:
   commercial lessors—rental cars—and
   everyone in the distribution chain- do not need privity of contract can sue dealer, manufacturer
• Defects:
   Manufacturing: when it differs from all the others on assembly line that makes it more dangerous -only has 3 of 8 bolts
   Design: line is the same but the design has a dangerous propensity-not dangerous products like knives, but choking hazards. Plaintiff must show: 1) alternative safer option, 2) alternative must be practical and not interfere with purpose 3) economically feasible- similar cost- special application of negligence law not really strict liability
  Wisconsin: consumer contemplation/expectation test- looks to reasonable expectations of an ordinary customer with regard to the product at issue
   Information Defects: product may be defective as a result of the manufacturer’s failure to give adequate instructions or warnings as to the risks involved may not be apparent to users
  Prescription drugs and medical devices- warnings given to physicians so they do not need to give to patients
  Look to:
  1) The warning is prominent- not on page 8
  2) Comprehensible- may need multiple languages or children who cannot read and you need icons or picture
  3) May need to provide info about mitigating risk
• Not altered: presumption if the product moved in ordinary channels it is presumed not altered
• **Foreseeable Use: at time of injury:
   Must be foreseeable, which includes foreseeable misuse- not only appropriate use
   Misuse is ok if appropriate misuse

Question 46

Property: Nuisance

Answer 46

• D’s intereference with the p’s right of peaceful use and enjoyment of property- intolerable
• Must have:
  1) Substantial interference
  2) Unreasonable interference
• Exam: 2 neighbors that should not be next to each other
  1) One place had people with nervous break downs next to a studio
  2) French restaurant with balcony next to plant shop with bulk manure
  3) Spite: purposefully try to piss you off
  4) Gross inconsideration- oblivious neighbors that do not mean to be inconsiderate

Question 47

Vicarious Liability

Answer 47

• Ability to sue two people- active tortfeasor and related passive actor
  Employer/Employee
• Employer can be held liable if employee was acting within the scope of employment
  1) Frolic or Detour: when the employee makes a minor deviation from business- still within, but if a substantial deviation in time, scope, or geographic location then the employer is not liable- going 2 blocks out of way to grab lunch is frolic, 50 miles to visit mom- detour
  2) Intentional torts: generally outside of scope of employment, Except:
   If the employee is furthering the business of the employer- slaps customer for using expired coupons
   Force is authorized- bouncer
   Friction is generated: bill collector
  Independent Contractor Situations
• General Rule: hiring party will not be vicariously liable for the tortious acts of independent contractor
• Exception: if working on business premises and hurts customer

Question 48

Multiple Defendant Issues

Answer 48

Joint & Several Liability
- CL when 2 or more cats combine each negligent actor will be jointly and severally liable-for the entire amount
- Satisfaction: one can pay the full amount and hold the other defendant’s liable for contribution- P can sue and collect from one person
- Contribution: allows d that paid all to have claim against other jointly liable parties for their apportioned amount
- Indemnity: shifting the entire loss between or among tortfeasors- held harmless. Use for: vicarious liability and product defect if not the manufacturer- you sued home depot instead of Black and Decker

Question 49

Loss of Consortium

Answer 49

• Spouse’s additional claim available that create a loss based on
  1) Household services
  2) Loss of society/companionship
  3) Loss of sex

Question 50

Defamation

Answer 50

• Elements
  1) Defamatory statement that specifically identifies p
  2) Published to a third party
  3) Falsity
  4) Fault
  5) Damage
• Defamatory statement: factual claim which adversely affects your reputation – Law view reputation is economic benefit that is able to be monetized- watch out for
   Pure statements of opinion: does not qualify- speaker must be basing opinion on fact
   Name-calling: opinion, not true or false
• Identify the Plaintiff:
   do not need to use name if people would know who you mean- US Attorney, or small group- waitresses working at Mel’ diner, all can sue if the class is small- 3 waitresses
   Must be alive at time of statement
• Publication: must be intentionally or negligently shared with one other person at least- the more people the more damage award
• Falsity: Cl: p did not have to prove the statement was false, Modern trend: require falsity to prove fault, if not falsity- no defamation but intentional infliction of emotional distress or right to privacy unless public figure
• Fault: defendant’s awareness that the statement was false based on p’s statuts
   Public Official: actual malice- knowledge or reckless disregard as to whether it is false
   Private Persons: negligence if matter of public concern
• Damages:
   Libel: defamation embodied in a permanent form- written or printed publication, damages are presumed
   Slander: spoken defamation- do not need to show special damages
  1) Slander Per Se:
  Adversely reflect on p’s business or profession
  Committed a serious crime
  Serious Sexual Misconduct
  Loathsome disease: leprosy or venereal diseases
  2) Other forms of Slander require to prove damages-must offer evidence of economic harm, then can collect for other social harm
• Affirmative Defenses for Defamation:
  1) Consent
  2) Privileges
   Absolute Privileges: spouse: any statements said have no claim and you can say whatever you want; Officers 3 branches of gov. in connection with their official office- extends to attys, judges, city counsel member, any officer in their duty
   Qualified Privilege: case-by-case basis when public interest in encouraging public candor, allowed in references or recommendations- must be within scope and good faith
   Common Interest Privilege: statements made to colleagues in the same organization

Question 51

Invasion of Privacy

Answer 51

• Personal right that does not extend to members of the family, survive death of plaintiff, and is nonassignable. Must be proximately caused by d’s conduct and do not need to prove damages, just emotional distress and mental anguish. Four types of wrongs:
  1) Appropriation: uses p’s name or image for commercial purpose- newsworthiness exception in connection with story- applies to celebrities and normies
  Wisconsin: must prove that appropriation was 1) without consent2) commercial purpose 3) identifies the person and 4) caused damages
  2) Intrusion: to p’s affairs or seclusion – eavesdropping, wiretapping, spying on electronic communications in a reasonable expectation of privacy
  3) False Light: publication of facts that are widespread dissemination of material falsehood- most states- with malice for public person
  4) Public disclosure of private facts: not if newsworthy and must be truly confidential fact
  Wisconsin: must prove: 1) actual publicity 2 highly offensive 3) not in public record 4) reckless or unreasonably
• Affirmative defenses
  1) Consent
  2) Absolute/qualified privilege for false light