Torts

Question 1

Intentional Torts Generally

Answer 1

General elements: voluntary act (affirmative, not reflexive or unconscious), intent (not motive, “volition” shown by desiring consequences or having purpose to bring consequences or knowing such consequences were substantially certain to occur, children can form intent), actual causation (but for / substantial factor, liable for all consequences)

Question 2

Transferred intent

Answer 2

Δ intends to commit a tort but instead commits a different tort, commits the same tort against a different person, or both. In those cases, the intent is transferred to the actual tort or person. Applies to battery (during apprehension), assault (during act/intent to contact), false imprisonment, trespass to land, trespass to chattels

Question 3

Battery

Answer 3

Harmful or offensive contact with Π’s person, where Δ intended such harmful or offensive contact or imminent apprehension of such contact with Π’s person; Δ caused such contact
i. Π’s person: Π or something closely connected to Π. Π need not be aware of conduct. Delayed contact OK
ii. Direct/indirect physical contact offensive to a reasonable person (unless Δ knew Π particularly susceptible)

Question 4

Assault

Answer 4

Act by Δ creating reasonable apprehension in Π of imminent battery (harmful or offensive contact to Π’s person), where Δ intended such apprehension and caused such apprehension
i. Π must actually suffer apprehension by apparent ability. Words alone rarely create assault (no imminence)

Question 5

False imprisonment

Answer 5

Intentional confinement of Π to bounded area against Π’s will caused by Δ’s act/omission
i. No reasonable means of escape known to Π. Embarrassment OK. Not by reputational harm or future threats

Question 6

Shopkeeper’s privilege

Answer 6

A shopkeeper (one tasked with safeguarding) may detain a shoplifter for a reasonable period of time, in a reasonable manner (can also be defense to battery) if the shopkeeper has reasonable suspicion to believe that the detained person committed or attempted to steal store property

Question 7

Intentional infliction of emotional distress (IIED)

Answer 7

Extreme and outrageous conduct intended by Δ that causes severe emotional distress (actual damages) (only intentional tort that requires damages)
i. Intent: Intentional or reckless
ii. Conduct exceeds all bounds of decency. Lesser showing enough for certain Δ (“gross insults” by innkeeper, common carrier) or certain Π (children, supersensitive if known to Δ, elderly, pregnant)
iii. Damages: Actual damages from severe emotional distress, not nominal damages, is required
iv. Third parties: Δ intentionally or recklessly causes severe emotional distress and…
1. Δ knows 3P is present + direct victim is a close family relative of 3P (bodily harm not required)
2. 3P’s emotional distress is so bad that it results in bodily harm to 3P (heart attack, stroke, etc.)

Question 8

Trespass to land

Answer 8

Δ’s intentional act (not necessarily to trespass) causes physical invasion of Π’s real property
i. Physical invasion: Entry by anything tangible (e.g., bullet, pesticide, person), not light, noise or vibrations
ii. Π’s land: Anyone in possession of land (LL, T, APer), which includes surface, airspace, subterranean space
iii. Mistake is not a defense: Δ needs intent to enter land, not intent to trespass
iv. Damages: Not required for intentional entry. Required for negligent, reckless, strict liability trespasses

Question 9

Trespass to chattel

Answer 9

Intentional interference with Π’s possessory right to personal property (includes pets)
i. Dispossession (direct interference with possession – taking) or intermeddling (damaging)
ii. Conversion: Substantial interference with Π’s possessory right to personal property
1. Substantial interference involves longer deprivation of possessory right, full damages, destruction
iii. Π may recover rental value or full FMV at time of trespass/conversion (damages) or possession (replevin)

Question 10

Defenses to Intentional Torts

Answer 10

Consent to Δ’s conduct, not to its consequences: Π had capacity + express/implied consent + w/in scope
1. Implied consent to reasonable tortious acts (sports). Presume consent to ordinary societal contacts
ii. Defense of self: Δ may use force reasonably believed to be necessary to avoid imminent harm by Π
1. Reasonable and proportionate to Π’s force if reasonable person would have believed under attack
2. Where there is a duty to retreat (e.g., statute), it only applies when deadly force is being threatened, and there is a safe way of escape. No duty to retreat from home
iii. Defense of property: Δ must first demand that Π stop the conduct before using reasonable force in defense
iv. Defense of others: Δ can defend a 3P from Π’s attack if Δ reasonably believed that the force used is necessary to avoid imminent harm (to the same extent that 3P would be entitled to defend himself from Π)
v. Necessity (property torts only, e.g., trespass to land or chattel)
1. Public necessity: Δ may interfere with Π’s property to protect public from harm (absolute defense)
2. Private necessity: Δ may protect individual interests if threatened harm substantially greater than Δ’s harm. Δ liable for any harm caused. Π liable for any harm caused preventing Δ’s necessary act

Question 11

NEGLIGENCE

Answer 11

To be liable for negligence, Δ must fail to exercise such care as a reasonable person in his position would have exercised, his conduct must be a breach of the duty to prevent the foreseeable risk of harm to anyone in Π’s position, and this breach must cause Π’s damages

Question 12

Duty of care

Answer 12

Δ owes a duty not to subject any foreseeable Π to unreasonable risk of injury. Who is foreseeable? Under the Cardozo (majority) view, Δ has a duty of care to Πs in the foreseeable zone of danger (threat of physical danger). Under the Andrews view, Δ has a duty of care to everyone (everyone is foreseeable).

Question 13

Affirmative Duties

Answer 13

No duty owed to take steps to rescue or aid, EXCEPT where affirmative duty is created by 1) special relationship (parent-child, common carriers, innkeepers, shopkeepers), 2) Δ’s conduct creating the peril, 3) Δ’s undertaking the action for Π’s benefit (attempt to assist), 4) Δ’s creating reliance, 5) contract

Question 14

Rescuers in Negligence

Answer 14

are per se foreseeable Π: As long as rescuer’s behavior was not wanton, rescued party (Δ) is liable for rescuer’s (Π’s) injuries caused by the rescue

Question 15

Duty to control 3P in Negligence

Answer 15

1) “dram shop” act (served customer harms another person), 2) special relationship

Question 16

Negligent infliction of emotional distress (NIED)

Answer 16

Pain and suffering is recoverable under bystander action (Π is owed a duty if Π was present at scene (not in zone of danger) + suffered emotional distress + had close relationship with injured person) or direct action ((i) Π was in zone of danger + emotional distress from Δ’s conduct caused physical symptoms (e.g., shock), or (ii) Δ’s negligence created emotional distress)

Question 17

Standard of care (extent of duty)

Answer 17

Δ owes a duty to act as a reasonably prudent person in same or similar situation (who has Δ’s relevant physical characteristics), absent negligence per se or a special relationship

Question 18

Negligence per se (statutory)

Answer 18

A statute (including one that provides for criminal penalty) defines the standard if Π is in the class of persons the statute was designed to protect + injury is type of injury statute was designed to protect. An unexcused violation of statute constitutes negligence per se—a breach of duty

EXCEPTIONS: Statute may be excused if it would be more dangerous to follow it or compliance is beyond Δ’s control (unforeseeable, incapable)

Question 19

Standard of Care for Children

Answer 19

Held to standard of reasonable child of same age, experience, intelligence, unless adult activity

Question 20

Invitee

Answer 20

Someone who enters land open to public with potential to confer economic benefit
a. Exercise reasonable care to prevent injuries: Inspect + make safe dangerous conditions

Question 21

Licensee

Answer 21

Someone who enters land not open to public not to confer economic benefit (guest)
a. Duty to warn of or make safe known dangers

Question 22

Trespasser

Answer 22

Someone who enters land without express/implied consent
a. Anticipated/known trespasser: Duty to warn of or make safe known, artificial, highly dangerous conditions. Cannot use deadly force to defend property
b. Otherwise no duty to undiscovered trespassers

Question 23

Artificial condition

Answer 23

Duty of reasonable care to entrants and known trespassers
a. If seller sold and vacated the property, his liability continues only until the buyer has had reasonable opportunity to discover the condition and take precautions

Question 24

Attractive nuisance doctrine

Answer 24

Δ has duty to exercise ordinary care and avoid foreseeable risk of harm (warn and make safe) to children caused by artificial conditions on property if: 1) dangerous condition owner is/should be aware of, 2) owner knows/should know children frequent the vicinity, 3) condition likely to cause injury (b/c Π child’s inability to appreciate the risk—doctrine does not apply to a “bright” child), 4) expense of remedying danger is outweighed by risk

Question 25

LL-T Duty of Care

Answer 25

LL liable for: common areas (lobby), negligent repairs, known hidden defects, reasonable care to discover and repair defects if LL knows T is going to hold property open to general public

Question 26

Professionals Duty of Care

Answer 26

Required to possess and exercise the knowledge and skill of a member of the profession in good standing. Medical specialists held to national standard. General practitioners held to local standard
v. Custom or usage may establish standard of care, but a court may find that entire industry is negligent

Question 27

Breach

Answer 27

Duty is breached where Δ’s conduct falls below level required by the applicable standard of care owed to Π

Question 28

Negligence per se

Answer 28

Violation of applicable statute (see above). Π must still establish causation and damage

Question 29

Res ipsa loquitur

Answer 29

creates an inference of negligence (p/f case for jury, deny directed verdict for Δ) where 1) type of accident is typically the result of negligence, 2) accident is attributable to Δ (Δ had sole control of the instrumentality causing injury), and 3) Π did not contribute to the injury. Δ may rebut with evidence

Question 30

Causation

Answer 30

actual cause in fact (but-for cause, substantial factor, or alternative causes) + proximate cause

Question 31

But For Test

Answer 31

Π must show more likely than not, but for Δ’s negligence, Π would not have been injured

Question 32

Substantial factor

Answer 32

(multiple causes): Each Δ’s conduct alone would have been sufficient to bring about Π’s indivisible injury. Assume joint and several liability (Π can recover damages from either or all Δs; Δ may sue another for contribution)

Question 33

Alternative causes

Answer 33

(multiple acts): Where there are multiple acts, only one of which causes injury but is unknown, each Δ must show that his negligence is not the actual cause

Question 34

Proximate cause

Answer 34

Δ is liable for harmful results caused by his acts if they were foreseeable (in any manner for any harm—see eggshell skull rule)
1. A superseding cause is an unforeseeable, intervening cause that breaks the chain of causation and becomes the proximate cause. The more intentional the intervening cause, the more likely it is superseding. BUT if Δ should have realized the risk, he may still be liable for intentional 3P acts
2. Foreseeable intervening causes: subsequent medical malpractice, negligent rescuer, subsequent diseases caused by weakened condition, subsequent accident substantially caused by injury
3. Eggshell skull rule: Δ takes Π as he finds him; Δ is liable even if extent of damages unforeseeable
v. Use joint and several liability where multiple actors are proximate causes for an indivisible injury

Question 35

Damages

Answer 35

Π is entitled to economic damages (e.g., medical expenses), noneconomic damages (e.g., pain, emotional distress), punitive damages (if Δ conduct is reckless or malicious), property damage (reasonable repair cost or FMV)
i. No recovery for pure economic harm (loss of income), except in NIED; or attorney fees
ii. Collateral source: Total damages are not reduced by benefits from other sources, but other Δs can reduce
iii. Duty to mitigate: Π has a duty to take reasonable steps to mitigate damages (seek treatment)

Question 36

Pure comparative negligence

Answer 36

(MBE default rule unless stated otherwise): Π’s recovery is reduced by his fault

Question 37

Modified comparative negligence

Answer 37

Bars recovery to Π if Π was more (or in minority jx, at least as) negligent than Δ

Question 38

Contributory negligence

Answer 38

Any fault by Π bars recovery. If Δ had last clear chance to avoid harm, Π can recover fu

Question 39

Assumption of risk

Answer 39

Recovery may be reduced or barred if Π knew the risk specific to Δ + voluntarily assumed risk
i. Express assumption of risk (clear written/oral release from negligence) is a complete bar to recovery
ii. Professional rescuer/firefighter’s rule: If professional (including volunteer) rescuer Π is injured by risks inherent in occupation from Δ’s negligence, recovery for negligence is barred (assumed risk as part of job)
iii. Avoidable consequences: Π fails take reasonable steps to mitigate damages

Question 40

STRICT LIABILITY (without fault)

Answer 40

Wild animals: If Π is injured by animal’s characteristic propensity, Δ is strictly liable to invitees and licensees
b. Domestic animals: Keeper is not liable unless he knew or had reason to know of its dangerous propensity
c. Abnormally dangerous activities create a foreseeable risk of serious harm even when reasonable care is exercised by all actors that is not a common activity in the area
i. Π can recover if Δ engaged in ADA + Π was injured by the type of danger characteristic of the activity

Question 41

DEFENSES to Strict Liability

Answer 41

contributory negligence if Π knew of the danger, comparative negligence, assumption of risk

Question 42

PRODUCTS LIABILITY - Strict Liability

Answer 42

theory of liability by any foreseeable Π
i. Duty: Any commercial supplier in distribution chain of the product has an absolute duty to supply safe products to any foreseeable Π (including bystanders). No privity is required between Π and Δ
ii. To find liability, Π must show a type of defect in product when it left Δ’s control (breach of absolute duty)
1. Product must not be expected to or actually undergo significant changes before it reaches the user

Question 43

Manufacturing defect

Answer 43

Product came out more dangerous than intended. Prove this defect with:
a. Ordinary consumer expectation test: Product failed to perform as safely as an ordinary consumer would expect. Δ must anticipate reasonable misuse

Question 44

Design defect

Answer 44

Very design resulted in product not safe for its intended use. Prove this defect with:
a. Feasible alternative test: Product could have been made safer without serious impact on the product’s price or utility
b. Risk-utility test: Danger of design > utility to society, feasibility of alternate designs

Question 45

Inadequate warnings defect

Answer 45

Product must have clear and complete warnings of dangers that may not be apparent to users. One language OK. Unneeded if obviously dangerous (e.g., knife)

Question 46

Causation in Strict Liability

Answer 46

Actual cause—defect existed when product left Δ’s control (Π need not prove fault). Proximate cause—type of injury was foreseeable at the time product was placed in the stream of commerce
1. Learned intermediary rule: Manufacturer is relieved of liability if an intermediate handler discovers the defect and knowingly passes it to Π or failed to convey manufacturer warning to Π

Question 47

Damages in Strict Liability

Answer 47

Physical injury or property damages are recoverable. Purely economic losses NOT recoverable
1. Duty to mitigate: Π has a duty to take reasonable steps to mitigate damages

Question 48

DEFENSES

Answer 48

misuse (in an unintended & unforeseeable way), assumption of risk, comparative negligence, contributory negligence if Π discovered defect, alteration (3P unforeseeably changes the product)

Question 49

Negligence liability

Answer 49

Analysis is similar to ordinary negligence (duty, breach, causation, damages)
i. Duty of care: Any foreseeable Π. Standard of care of reasonably prudent commercial seller
ii. Breach: Reasonableness of Δ’s conduct whose failure resulted in supplying a defective product
1. Res ipsa loquitur may be invoked by Π
iii. Causation: Actual cause and proximate cause. Learned intermediary rule may also apply
1. Includes negligently failing to inspect, with evidence that would lead a reasonable person to do so
iv. Damages: Physical injury or property damages. Purely economic losses NOT recoverable
v. DEFENSES: Same as in a general negligence action

Question 50

Implied warranty theory by purchaser

Answer 50

family, household, and guests (vertical privity generally not required)
i. Merchantability (breached by merchant dealing in kind of goods sold) refers to whether the goods are of average acceptable quality and fit for the ordinary purpose the goods are used
ii. Fitness for a particular purpose (breached by any seller of the goods) refers to whether the seller knows or has reason to know the particular purpose the goods are required for and the buyer is relying on the seller’s skill and judgment in selecting the goods
iii. Breach: If product fails to meet either of above standards, warranty is breached. No need to show fault.
iv. Causation: Actual + proximate cause as in general negligence
v. Damages: Personal, property damages. Purely economic losses are recoverable
vi. DEFENSES: assumption of risk (using while knowing breach), contributory negligence if Π discovered defect, failure to give notice of breach (under UCC)

Question 51

Express Warranty

Answer 51

(foreseeable Πs): Δ makes representation affirming a fact or promising to the buyer as to the product that becomes the basis of the bargain. No need to show breach, just that product did not live up to warranty. Causation, damages,
DEFENSES are treated as they are under implied warranties

Question 52

Defamation

Answer 52

b. (1) Defamatory language tending to adversely affect one’s reputation. Opinions must be based on specific facts to be actionable
c. (2) Of or concerning Π: Reas. person would understand that the statement referred to Π (incl. w/in small group)
d. (3) Publication: Someone other than Π received and reasonably understood the defamatory matter due to Δ’s negligent or intentional publication (intent to publish, not to defame)
e. (4) Damage to Π’s reputation must be proved depending on type of defamation (libel or slander)
i. Libel: Any comm’n that has some permanence (e.g., writing, radio, TV, photo). General damages presumed
ii. Slander: Spoken, oral defamation. Π must prove special (pecuniary) damages, unless slander per se (impute improper conduct in Π’s trade, accusation of crime involving moral turpitude, current loathsome disease, lack of chastity of woman)
f. Constitutional issues (further analyze on top of above elements if defamation involves matters of public concern)
i. (5) Falsity: Π must prove that the statement was false. If not, Π may still raise IIED or privacy torts
ii. (6) Fault of Δ: If Π is…
1. Public official or figure? A public figure has achieved fame or notoriety or has voluntarily assumed a central role in a public controversy. Π must show malice (knowledge of falsity of statement or reckless disregard as to truth or falsity)
2. Private person, public concern? Π need only prove negligence regarding falsity and actual injury
3. Private concern? Constitutional restrictions do not apply. Prove publication only

Question 53

Defamation Of or concerning Π:

Answer 53

Reas. person would understand that the statement referred to Π (incl. w/in small group)

Question 54

Defamation Publication

Answer 54

Someone other than Π received and reasonably understood the defamatory matter due to Δ’s negligent or intentional publication (intent to publish, not to defame)

Question 55

Defamation Damage to Π’s reputation

Answer 55

Libel: Any comm’n that has some permanence (e.g., writing, radio, TV, photo). General damages presumed
ii. Slander: Spoken, oral defamation. Π must prove special (pecuniary) damages, unless slander per se (impute improper conduct in Π’s trade, accusation of crime involving moral turpitude, current loathsome disease, lack of chastity of woman)

Question 56

Constitutional issues

Answer 56

(further analyze on top of above elements if defamation involves matters of public concern)
i. (5) Falsity: Π must prove that the statement was false. If not, Π may still raise IIED or privacy torts
ii. (6) Fault of Δ: If Π is…
1. Public official or figure? A public figure has achieved fame or notoriety or has voluntarily assumed a central role in a public controversy. Π must show malice (knowledge of falsity of statement or reckless disregard as to truth or falsity)
2. Private person, public concern? Π need only prove negligence regarding falsity and actual injury
3. Private concern? Constitutional restrictions do not apply. Prove publication only

Question 57

Defenses to Defamation

Answer 57

Qualified privilege: Comm’n that appears reasonably necessary to protect Δ’s own legitimate interests or is of interest to recipient, e.g., past employer’s reference, reports of public hearings, newsworthy events
1. EXCEPTIONS: Δ loses privilege if acted with malice (know falsity or recklessly disregard truth) or statement is outside scope of privilege
ii. Truth: If Δ can prove substantial truth, it would be a defense (Π’s burden to prove falsity)
iii. Absolute privilege until repeated in a context where there is no privilege: Statements made by legislators (or aides) on floor, between federal executive officials, judicial proceedings, comm’n between spouses

Question 58

Nuisance

Answer 58

Private nuisance is a substantial and unreasonable interference with a. Π’s use and enjoyment of possessed land by intentional, negligent, or abnormally dangerous conduct
i. Substantial: Offensive, inconvenient, or annoying to an average person in the community
ii. Unreasonable: Severity of injury > utility of Δ’s conduct
b. Public nuisance is an unreasonable interference with a health, safety, moral right common to the general public
i. Suit typically brought by gov’t actor. Private party can bring action if he suffered unique damage

Question 59

Commercial appropriation

Answer 59

Unauthorized (no permission or negligent in verifying) use of Π’s picture or name for Δ’s commercial purpose. Π need not be identified by name so long as clear that the ad is meant to depict that person

Question 60

Intrusion into seclusion

Answer 60

Δ intentionally interferes with Π’s zone of privacy in a manner offensive to a reasonable person (for example, eavesdropping, wiretapping, stalking)

Question 61

Public disclosure of private true facts

Answer 61

Disclosure of true facts that 1) would be highly offensive to a reasonable person and 2) is not newsworthy

Question 62

Portrayal in a false light

Answer 62

Publication of false information that would be highly offensive to a reasonable person

Question 63

Respondeat superior:

Answer 63

If an employee is negligent within scope of employment, under employer’s direction, or while serving employer’s interest, then employer is vicariously liable for employee’s tortious acts
1. Frolic and detour: An employee making a minor detour from the employer’s business for own purposes is still acting within the scope of employment
2. Intentional torts by employee are outside the scope, UNLESS authorized or furthering the business (e.g., bouncer, bill collector)
3. Special relationships such as university-student may be within the scope

Question 64

Independent contractor (IC) for Vicarious Liability

Answer 64

Person who hires IC is not vicariously liable for negligence of IC
1. UNLESS (1) IC is engaged in inherently dangerous activity (excavating) or (2) duty is non-delegable as a matter of public policy or safety

Question 65

Employee vs. IC:

Answer 65

IC if payer has right to control result of the work but not what or how it will be done

Question 66

Negligent hiring/supervision

Answer 66

Employers may be liable for own negligence by hiring or supervising an employee or IC. This is not “vicarious liability

Question 67

Joint venture

Answer 67

(undertaking to carry out objectives that associates have equal voice to direct the enterprise): Act of any associate w/in the scope of the enterprise is vicariously liable against the rest

Question 68

Vicarious Liability of Child

Answer 68

A parent is under a duty to exercise reasonable care to control his minor child as to prevent intentional harm or risk of harm to others, if the parent 1) knows or has reason to know that he can control his child and 2) knows or should know of the necessity and opportunity for exercising such control
1. Parents are not vicariously liable for their children’s tort, UNLESS the child committed a tort while acting as the agent for the parents
2. Negligent supervision/entrustment: Parents may be liable for own torts where they had a reason to know of any propensities of the child; they owe a duty to those who might be injured by the child

Question 69

Fraudulent misrepresentation:

Answer 69

Material misrepresentation made with intent or knowledge to mislead, and Π reasonably relied on the misrepresentation

Question 70

Negligent misrepresentation

Answer 70

Material misrepresentation made with negligent or innocent scienter, and Π reasonably relied on the misrepresentation

Question 71

Fraudulent nondisclosure:

Answer 71

Silence when there was a duty to disclose a material fact, and Π reasonably expected disclosure

Question 72

Wrongful institution of proceedings

Answer 72

i. Malicious prosecution: Institution of criminal/civil proceedings against Π (former Δ) without probable cause, without proper purpose (malice), where Π prevailed on the merits, and Π suffered damages
ii. Abuse of process: Wrongful use of process for an ulterior purpose + act or threat against Π to accomplish purpose

Question 73

Interference with Contractual Relations

Answer 73

Δ knew of valid K between Π and 3P + acted with purpose of having K breached or made harder to perform + damages