Torts rule statements

Question 1

Elements of battery

Answer 1

In a battery action, a plaintiff must show that
1. The defendant intended to cause contact with the plaintiff’s person
2. Affirmative conduct caused such a contact
3. The contact caused bodily harm or was offensive to the plaintiff

Question 2

When is a defendant’s contact intentional (battery)?

Answer 2

A defendant’s contact is intentional if he acts with the purpose of bringing about the action, or engages in an action knowing the contact is substantially certain to occur

Question 3

Majority rule about intent and battery

Answer 3

In most jurisdictions, the defendant need only intend to cause contact, not that the contact be harmful or offensive (often called the single intent rule)

Question 4

Elements of a negligence action

Answer 4

In a negligence action, a plaintiff must show that
1. The defendant owed the plaintiff a duty
2. The defendant breached that duty
3. The defendant caused the plaintiff’s injuries
4. Damages exist

Question 5

Standard of care in general

Answer 5

Generally, the standard of care imposed on a defendant is that of a reasonably prudent person under similar circumstances

Question 6

What is required of someone under the general standard of care

Answer 6

A person is required to exercise the care that a reasonable person under the same circumstances would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person

Question 7

How does a jury consider whether a specific precaution was warranted under the general duty of care?

Answer 7

In determining whether a specific precaution was warranted, a jury must weigh the probability and gravity of the injury against the burden of taking such precautions

Question 8

Vicarious liability, generally

Answer 8

Vicarious liability is a form of strict liability, in which one person is liable for the negligent actions of another

Question 9

Employers and vicarious liability

Answer 9

An employer is liable for the tortious conduct of an employee that is within the scope of employment

Question 10

Two approaches in determining whether there was a breach of duty

Answer 10

Traditional approach and the cost benefit approach

Question 11

Traditional approach to breach

Answer 11

Most courts follow the traditional approach, and will compare the defendant’s conduct with that of a reasonably prudent person

Question 12

Cost benefit approach to breach

Answer 12

The modern trend is to perform a cost-benefit analysis to determine whether the defendant has acted in accordance with the standard of care.

Question 13

What is considered in the cost benefit approach to breach

Answer 13

The cost benefit analysis considers
1. The foreseeable likelihood that the defendant’s conduct would cause harm
2. The foreseeable severity of any resulting harm; and
3. The defendant’s burden in avoiding the harm

Question 14

Evidence of custom in an industry

Answer 14

Evidence of custom in an industry may be offered to establish the standard of care, but is not conclusive

Question 15

Defendant’s liability for plaintiff’s preexsting physical or mental conditions

Answer 15

The defendant is liable for the full extent of the plaintiff’s injuries due to the plaintiff’s preexisting physical or mental condition or vulnerability, even if the extent is unusual or foreseeable

Question 16

Standard of care for a physician

Answer 16

A physician is held to a national standard of care and is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner

Question 17

Who is a duty of cared owed to?

Answer 17

Under the majority approach, a duty of care is owed to all foreseeable persons who may foreseeably be injured by a defendant’s failure to act as a reasonable person under the circumstances

Question 18

Strict products liability, generally

Answer 18

Under strict products liability, the manufacturer, retailer, or distributor of a defective product may be liable for any harm caused by the product

Question 19

How can a plaintiff prove product liability?

Answer 19

A plaintiff must prove the product is defective (in manufacture, design, or failure to warn), the defect existed at the time the product left the defendant’s control, and the defect caused the plaintiff’s injuries when used in an intended or reasonably foreseeable way

Question 20

Manufacturing defect

Answer 20

A manufacturing defect is a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff

Question 21

Test for manufacturing defect

Answer 21

The test is whether the product conforms to the defendant’s own specifications

Question 22

Implied warranty of merchantability

Answer 22

The implied warranty of merchantability warrants that the product being sold is generally acceptable and reasonably fit for the ordinary purposes for which it is being sold

Question 23

When is the implied warranty of merchantability breached?

Answer 23

Any product that fails to live up to this warranty constitutes a breach, regardless of any fault by the defendant.

Question 24

Burden to prove who caused injury

Answer 24

Regardless of the theory of liability, the burden is on the plaintiff to prove that the specific defendant caused the plaintiff’s injuries

Question 25

Market share liability theory

Answer 25

Under this doctrine, if the plaintiff’s injuries are caused by a fungible product and it is impossible to identify which defendant placed the harmful product into the market, the jury can apportion liability based on each defendant’s share of the market

Question 26

Alternative causation doctrine

Answer 26

If the plaintiff’s harm was caused by one of a small number of defendants, each of whose conduct is tortious, and all of whom are present before the court, the court may shift the burden of proof to each individual to prove that their conduct was not the cause in fact of the plaintiff’s harm.

Question 27

Concert of action doctrine

Answer 27

Under this doctrine, if two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the plaintiff’s harm, then all the defendants will be held jointly and severally liable

Question 28

What retailers are subject to strict liability

Answer 28

To be subject to strict products liability, the defendant must be in the business of selling or otherwise distributing the product.

Question 29

SL and abnormally dangerous activities

Answer 29

Defendants that are engaged in abnormally dangerous activities may be held strictly liable for damages caused by that activity, even in the absence of negligence

Question 30

What activities are abnormally dangerous?

Answer 30

Activities are considered abnormally dangerous if they create a foreseeable and highly significant risk of physical harm, even in the exercise of reasonable care, and the activity is not commonly engageed in

Question 31

Compliance with a statutory standard of care and negligence per se

Answer 31

Although the unexcused violation of a statutory standard of care may be negligence per se, the converse is not true. An actor who has complied with all statutory standards may still be found negligent if his conduct is not reasonable under the circumstances.

Question 32

Liability and proximate cause

Answer 32

Liability typically extends only to foreseeable plaintiffs and hazards

Question 33

Foreseeability of rescuers

Answer 33

A person who comes to the aid of another is a foreseeable plaintiff.

Question 34

Liability to rescuers in negligence actions

Answer 34

If the defendant negligently puts either the rescued party or the rescuer in danger, then he is liable for the rescuer’s injuries.

Question 35

Negligent intervening acts

Answer 35

Negligent intervening acts are usually regarded as foreseeable and do not prevent the original defendant from being held liable to the plaintiff

Question 36

When does one remain liable for conduct of independent contractors

Answer 36

The person who hires an independent contractor remains vicariously liable for certain conduct, including inherently dangerous activities and duties arising out of a relationship with a specific plaintiff or the public, including conduct that affects the public at large.

Question 37

When is an activity inherently dangerous

Answer 37

An activity is inherently dangerous when, if reasonable care is not exercised, the resulting risk differs from the type of risk usual in the community

Question 38

When is contact harmful?

Answer 38

Contact is harmful when it causes injury, physical impairment, pain, or illness

Question 39

When is contact offensive?

Answer 39

Contact is offensive when a reasonable person would find the conduct offensive

Question 40

When does a defendant intentionally cause contact?

Answer 40

When they act with the desire to bring about the contact or engages in action knowing that the contact is substantially certain to occur

Question 41

Majority rule on intent and battery

Answer 41

In most jurisdictions, the defendant need only intend to bring about the contact, not that the defendant intends the contact to be harmful or offensive

Question 42

When is an employee vicariously liable for an employee’s torts

Answer 42

If the employer has the right to control the activities of the employe

Question 43

Consent as a defense to battery

Answer 43

Consent is a defense to battery and can be express, apparent, or presumed

Question 44

Apparent consent and battery

Answer 44

Apparent consent exists and a defendant will not be liable for otherwise tortious conduct if the defendant reasonably believes that the plaintiff actually consents to the conduct, even if the plaintiff does not

Question 45

Eggshell plaintiff rule

Answer 45

Under the eggshell plaintiff rule, a defendant is liable for the full extent of the plaintiff’s injuries due to the plaintiff’s preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable.

Question 46

Intervening cause

Answer 46

An intervening cause is a factual cause of the P’s harm that contributes to her harm after the D’s tortious act is completed.

Question 47

Superseding cause

Answer 47

A superseding cause is any intervening cause that breaks the chain of proximate causation between the D’s tortious act and the P’s harm, thereby preventing the original D from being liable to the P

Question 48

unforeseeable intervening causes

Answer 48

Most courts hold that an unforeseeable intervening cause is a superseding cause that breaks the chain of causation between defendant and plaintiff

Question 49

unforeseeable intervening causes

Answer 49

examples of unforseeable intervening causes include extraordinary acts of nature, criminal acts of third parties, and intentional torts of third parties

Question 50

standard of care for children

Answer 50

Although the standard of care imposed in most cases is that of a reasonably prudent person under the circumstances, the standard imposed upon a child is that of a reasonable child of similar age, intelligence, and experience.

Question 51

children engaging in high risk activities

Answer 51

A child engaged in a high risk activity that is characteristically undertaken by adults is held to the same standard as an adult

Question 52

Prevelance of comparative fault

Answer 52

Almost all jurisdictions have adopted some form of comparative fault

Question 53

Comparative negligence, generally

Answer 53

Under comparative negligence jurisdictions, the plaintiff’s degree of negligence will be compared to the total negligence of all defendants combined, and a finding that one is negligent could reduce their damages.

Question 54

Modified comparative negligence

Answer 54

In a modified comparative negligence JDX, a finding that the plaintiff was more negligent than all of the defendants combined would bar recovery

Question 55

Prevalence of traditional landowner rules

Answer 55

Approximately 1/2 of all JDXs continue to follow traditional rules that provide that the standard of care owed to land entrants depends on the status of the entrant as an invitee, licensee, or trespasser

Question 56

Licensee

Answer 56

A licensee is someone who enters the land of another with the express or implied permission of the land possessor or with a privilege

Question 57

duty to licensees

Answer 57

A land possessor has a duty to either correct or warn licensees of concealed dangers that are either known to the land possessor or should be obvious to her.

Question 58

duty to inspect for dangers re: licensees

Answer 58

The land possessor has no duty to inspect for dangers, but must exercise reasonable care in conducting activities on her land

Question 59

Uniform standard of care for land entrants

Answer 59

Courts in the other half of JDXs require that a standard of reasonable care apply to all land entrants except trespassers, abolishing the distinction between invitees and licensees

Question 60

Landowner’s duty to nontrespassers when distinction b/t invitees/licensees doesn’t exist

Answer 60

A land possessor must use reasonable care to prevent harm posed by artificial conditions or conduct on the land

Question 61

trespasser definition

Answer 61

A trespasser is someone who enters or remains upon the land of another without the consent or privilege to do so

Question 62

majority rule of landowner conduct towards trespassers

Answer 62

the majority rule is that a land owner is obligated only to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers

Question 63

attractive nuisance doctrine

Answer 63

Under this doctrine, a land possessor is liable for injuries to children trespassing on their land if
1. an artificial condition exists where the land possessor knows or has reason to know that children are likely to trespass
2. the land possessor knows or has reason to know that the condition poses an unreasonable risk of death or SBH to children;
3. the children, because of their youth, do not discover or cannot appreciate the danger presented by the condition;
4. the utility to the land possessor of maintaining the condition and the burden of eliminating it are slight compared to the risk of harm posed to children; and
5. the land possessor fails to exercise reasonable care to protect children from harm

Question 64

duty of care when voluntarily rescuing another

Answer 64

A person who voluntarily aids another has a duty to act with reasonable care.

Question 65

duty to rescue another

Answer 65

Generally, there is no duty to come to the aid of another.

Question 66

When is contact harmful for battery

Answer 66

Contact is harmful when it causes injury, physical impairment, pain, or illness

Question 67

When is contact offensive for battery

Answer 67

contact is offensive when a reasonable person would find the contact offensive

Question 68

Minority approach to battery (double intent rule)

Answer 68

Under the minority approach, a claimant needs to show that not only did the D intend to cause contact with them, but also that they intended for this contact to be harmful or offensive

Question 69

When is a product defective

Answer 69

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, a design defect, or inadequate instructions or warnings.

Question 70

Manufacturing defect

Answer 70

A manufacturing defect is a physical deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. The test for the existence of such a defect is whether the product conforms to the defendant’s own specifications

Question 71

Requirements to prevail on strict products liabiilty claim

Answer 71

To prevail on a strict product liability claim, the plaintiff must show
1. the product was defective
2. the defect existed when the product left the D’s control
3. the defect caused P’s injury
4. the product was used in a reasonably foreseeable way

Question 72

Standard of care for D with physical disabiilty

Answer 72

The reasonableness of the conduct of a D with a physical disability is determined based on a reasonably careful person with the same disability.

Question 73

Duty definition

Answer 73

Duty is the obligation to protect another against unreasonable risk of injury

Question 74

Public invitee

Answer 74

An invitee is someone invited to enter or remain on land for the purposes for which the land is held open to the public.

Question 75

Duty of care owed to invitee

Answer 75

A land possessor owes an invitee the duty of reasonable care, including the duty to inspect the property, discovery unreasonably dangerous conditions, and protect the invitee from them

Question 76

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Standard of care while voluntarily rendering aid

Answer 76

While there is no affirmative duty to act, a person who voluntarily aids or rescues another has a duty to do so with reasonable, ordinary care