Torts

Question 1

Vicarious liability - Employees

Answer 1

Employers are vicariously liable for the negligence of their employees committed while they are acting within the scope of their employment. Employers are generally not liable for employee’s intentional torts unless force is authorized in the employment, friction is generated by the employment, or the employee is furthering the business of the employer or principal. Employees are always liable for their acts, whether there is vicarious liability or not.

Question 2

Vicarious liability - independent contractors

Answer 2

A principle is liable for the negligence of their independent contractors when the independent contractor is engage in inherently dangerous activities or if the duty is non delegable.

Question 3

Intentional torts

Answer 3

Intentional torts require the intention to do the act that causes the tort, not the intent to cause the particular harm. Intentional torts include assault, battery, false imprisonment, trespass, trespass to chattels and conversion, IIED, abuse of process, and malicious prosecution.

Question 4

Assault

Answer 4

A volitional act done with the intent to cause either harmful or offensive contact or the apprehension of imminent harmful or offensive contact that causes a reasonable apprehension of harmful or offensive contact.

Question 5

Battery

Answer 5

A volitional act done with the intent to cause either harmful or offensive contact or an apprehension of imminent harmful or offensive contact that causes harmful or offensive contact.

Question 6

False imprisonment

Answer 6

An act intending to confine someone within boundaries fixed by the actor, directly or indirectly resulting in such confinement, and the confined person is either conscious of the confinement or harmed by it.

Question 7

False imprionsnment defenses

Answer 7

Shopkeepers privilege - Can be claimed if there are reasonable grounds to believe a theft has occurred, they hold the plaintiff for a reasonable time to ascertain the facts, and in a reasonable manner.
Crime prevention - Private persons may arrest someone if they have a reasonable belief that a crime has occurred that involves a breach of the peace.

Question 8

Trespass to chattel

Answer 8

An act which is an intermeddling or dispossession of the personal property of anther which causes harm to or the loss of use of personal property.

Question 9

Conversion

Answer 9

An act which is an intermeddling or dispossession of the personal property of anther which causes harm to or the loss of use of personal property which is serious enough to warrant defendant paying full value of the item at the time of conversion.

Question 10

IIED

Answer 10

Intent to cause severe emotional distress and extreme outrageous conduct that causes severe emotional distress. There is no requirement to show physical harm.

Question 11

Abuse of Process

Answer 11

Abuse of process involves using a legitimate for a wrongful purpose and an act or threat against the plaintiff to accomplish the wrongful purpose.

Question 12

Malicious prosecution

Answer 12

The initiation of civil or criminal proceedings without probable cause for a wrongful purpose, and the favorable termination of the proceedings on the merits.

Question 13

Negligence

Answer 13

Duty, breach, actual cause, proximate cause, and harm.

Question 14

Negligence - Ordinary duty and breach

Answer 14

Everyone has a duty to act reasonably in order to avoid harming others. Think:
“D has a duty to (action) reasonable in order to avoid injuring (people in plaintiff’s position).”

Breach is a failure to act reasonably under the circumstances in violation of their duty. Think:
“D breach his duty to (action) reasonably when he (additional action that violated breach).”

Question 15

Negligence per se

Answer 15

Occurs when there is a violation of a criminal statute, the plaintiff is a member of the class of persons intended to be protected by the statute and, the claimed harm is the type of harm intended to be protected against. 
A finding of negligence per se is a conclusive presumption of breach and duty.

Question 16

Landowners - genreally

Answer 16

Generally a landowner owes no duty to protect someone outside the premisses from either natural or artificial conditions on the land. There are two major exceptions: a duty to protect from unreasonably dangerous artificial conditions abutting adjacent land, and a duty to take due precautions to protect persons passing from dangerous conditions.

Question 17

Landowners - Invitees

Answer 17

An invitee is a person who is invited to land by the possessor of the land as a member of the public or one who is invited to the land for the purpose of business dealings with the possessor of the land.
Possessors are liable to invitees if they know or should have discovered the dangerous condition and should expect the invitee will not discover or realize the danger, and fails to exercise reasonable care to protect them from danger. This is a duty to inspect, discover, repair, and protect.

Question 18

Landowners - Licensees

Answer 18

A licensee is is a person who is on the property of another, despite the fact that the property is not open to the general public, because the owner of the property has allowed the licensee to enter.
Possessors are liable to a licensee if they know or should have known of a dangerous condition and the potential harm, and they fail to exercise reasonable care to make the condition safe or to ward and the licensee does not know or have reason to know of the condition. This is a duty to repair and protect against dangerous conditions.

Question 19

Landowners - Trespassers

Answer 19

If the possessor knows that a limited part of the property is frequently trespassed they are liable for artificial dangerous conditions that the possessor created or maintained, that is likely to cause harm, is not likely to be discovered, and there is inadequate warning of the condition.

Question 20

Landowners - Attractive nusiance

Answer 20

Plaintiff must show there is a dangerous condition on the land the owner should have been aware of, the owner knows young people frequent the area, the condition is likely to cause injury because of the child’s inability to appreciate the risk, and the expense of remedying the situation is slight compared to the magnitude of the risk.

Question 21

Actual cause

Answer 21

Actual cause means that but for the defendant’s actions, the harm would not have occurred. If there are true concurrent causes and either alone is sufficient as a cause, it will be a substantial factor in the cause.

Question 22

Proximate cause

Answer 22

Was the harm reasonably foreseeable, or a natural consequence, of the defendant’s act?
Forseeability and harm, which is the nature of the harm, not damages, which measure the harm.
Purely economic proximate damage are denied in the absence of actual injury to person or property.

Question 23

Negligence defenses - contributory negligence

Answer 23

Contributory negligence of the plaintiff is a defense and a complete bar to recovery. A plaintiff may invoke the las clear chance doctrine to avoid finding of contributory negligence.

Question 24

Negligence defenses - comparative negligence

Answer 24

Pure comparative fault reduces the recovery by the percentage attributable to the plaintiff’s fault. Non pure bars recovery if the plaintiff’s fault exceeds 50%.

Question 25

Negligence defenses - assumption of risk

Answer 25

Plaintiffs will be denied recovery if it is shown they were aware of the risk and voluntarily assumed it. The particular risk must be apprehended and understood, not just a general risk of harm.

Question 26

Negligence defenses - emergency

Answer 26

So long as the defendant did not create the emergency, a defendant has a duty to act as a reasonable person would under similar circumstances.

Question 27

Nuisance - Public

Answer 27

Public nuisance is the unreasonable interference with a common public interest, such as the health, safety, or property interest of a large segment of the community. A private person can only bring an action for public nuisance if they suffer harm that is different in kind from the harm suffered by members of the public in general.

Question 28

Nuisance - Private

Answer 28

An unreasonable invasion of another’s use and enjoyment of their land where the invasion is intentional, reckless, or abnormally dangerous. The court will balance the harm to the plaintiff with the benefit of the defendant. If the action was intentional, there will be no balancing. The common remedy is an injunction.

Question 29

Trespass

Answer 29

Trespass is the physical invasion of, or remaining on the land of another without the privilege to do so. Mistake is not a defense to trespass and trespass does not require a showing of harm. The common remedy is an injunction.

Question 30

Strict liability

Answer 30

Strict liability is liability without fault for harms proximately caused by certain conduct.

Question 31

Strict liability - animals

Answer 31

Owners of wild animals and livestock are strictly liable for the harms caused by the animals if the harm was the kind caused by the wildness of the animal.
Owners of domestic animals are strictly liable for harms when the owner knows or has reason to know of the animal’s vicious tendencies.

Question 32

Abnormally dangerous activites

Answer 32

The carrying on of an activity which causes harm and the risk of which makes the activity abnormally dangerous. An abnormally dangerous activity is one where there is a high degree of risk of serious harm and no ability to eliminate the risk using reasonable care.

Question 33

Products liablity

Answer 33

Strict liability, manufacturing defects, design defects

Question 34

Product liability - Strict liability

Answer 34

Strict liability will be found where the defendant is in the business of selling or distributing products, the defendant sells or distributes a defective product that remains unchanged when it reaches the customer, and the defect causes harm to a foreseeable person.
Sellers include all entities within the vertical chain of distribution.
There are three types of defect, manufacturing defects, design defects, and warning defects.

Question 35

Manufacturing defects

Answer 35

A manufacturing defect is one where the product departs from its intended design, it contains a flaw.

Question 36

Design defects

Answer 36

Under the risk utility-theory, a product has a design defect when there is an inherently unreasonable risk of harm and there is little or no utility to the product.
Under the feasible alternative design, there is a design defect when there is a reasonable an feasible alternative design that would have been economically feasible and safer.
California also has the reasonable expectations test, so that if a product dangerously fails to perform as a customer would expect it to, that failure is a design defect.

Question 37

Warning defects

Answer 37

There is liability for a failure to warn if the manufacturer knows or has reason to know that the product is likely to be dangerous for the use for which it is supplied, and has no reason to believe that the users of the product will realize its dangerous condition, and fails to inform the users of the product’s dangerous condition or of the facts which make the product likely to be dangerous.

Question 38

Defenses to strict product liablity

Answer 38

Comparative negligence is a defense to strict products liability.

Question 39

Negligent products liablity

Answer 39

The elements of product liability negligence are the same as regular negligence. The manufacturer of a product owes a duty to all foreseeable users or bystanders whether or not they are the immediate purchaser, to make the product carefully if a product, when negligently made, is reasonably certain to place users in peril. Danger must be probable and not merely possible.

Question 40

Breach of Warranty

Answer 40

The difference between negligence and breach of warranty is that warranty is fault-free. Even if the defendant did everything right, if the goods that the defendant sells are not as warranted, defendant is in breach and owes damages.

Question 41

Breach of express warranty

Answer 41

The making of an express warranty which is one that is an affirmation of fact concerning the goods, reliance on the warranty, and a breach of the warranty that causes harm.;

Question 42

Implied warranty of merchantability

Answer 42

A warranty of merchantability occurs when goods are sold by a merchant in goods of the kind, that the goods must be of fair average quality and fit for its ordinary purpose. The warranty is breached where there is a warranty of merchantability and reliance on it by the purchaser, a breach of the warranty, and the breach proximately caused the loss sustained.

Question 43

Implied warranty of merchantability

Answer 43

The seller must know of the particular purpose ob the buyer at the time of sale, the seller recommended the product with that knowledge, and the purchaser relied on that recommendation in purchasing the product.
There is a breach of the implied warranty of fitness for a particular purpose where there is the warranty, there is a breach of the warranty, and the breach proximately causes the loss sustained.

Question 44

Defamation

Answer 44

A defamatory statement, of or concerning the plaintiff, published to a third party that results in harm.
A defamatory statement is one that holds the plaintiff up to ridicule or harm to reputation.
Of and concerning the plaintiff means the hearer reasonably understands that the statement refers to the plaintiff.

Question 45

Slander

Answer 45

Slander is an oral defamatory statement. There is no recovery for slander absent proof of special damages unless it is slander per se. Slander per se includes accusation of a crime, imputation of loathsome disease, impotence or lack of chastity, statements that cause actual damages.

Question 46

Defenses to defamation

Answer 46

Truth and privilege are the main defenses to defamation. Truth is a complete defense to defamation.
The privilege to publish defamatory statements is absolute or qualified. There is absolute privilege for statements made in the proper discharge of official government duties, legislative proceedings, judicial proceedings, or any other proceeding authorized by law.
A qualified privilege exists when the statements is without malice and by one who is also interested, one who stands in such a relationship with an interested person that the communication can be supposed to be innocent, or by a person who is requested by the interested person to give the information.

Question 47

Defamation - Constitutional issues

Answer 47

Where a defendant can claim first amendment defenses for a defamatory statement, the plaintiff must also prove falsity of the defamation and fault.
Public officials and figures cannot recover damages of any kind for a defamatory falsehood relating to official conduct unless it was false and made with malice. Malice occurs when there is knowledge of the falsity or reckless disregard of its falsity.
A public figure is one who voluntarily injects themselves, or is drawn, into the forefront of a public controversy to influence the resolution or shape events that concern society at large.

Question 48

Damages for defamation

Answer 48

When the statement involves a matter of public concern, the plaintiff must prove falsity and that the defendant was at least negligent in making the statement to receive actual damages. To recover for presumed or punitive damages, the plaintiff must prove malice.
Where matters are of purely private concern, only basic defamation is required and malice is not necessary.
When the plaintiff is private and the defendant is media, only actual damages are recoverable without a showing of malice.

Question 49

Invasion of privacy - intrusion

Answer 49

Occurs when a person unreasonably and seriously interferes with another’s interest in not having his affairs known to others. An objective standard is used and the defendant will be liable if they should have realized their conduct would offend a person of ordinary sensibilities.

Question 50

Invasion of privacy - PDPF

Answer 50

Occurs when there is a public disclosure, of private facts, that would be offensive and objectionable to a reasonable person, that is not of legitimate public concern.
A fact is private if the plaintiff has made reasonable attempts to keep the matter private.
If the press publishes truthful information that it has lawfully obtained, punishment may only be imposed when narrowly tailored to achieve a compelling state interest.

Question 51

Invasion of privacy - False light

Answer 51

Occurs when a defendant publicizes a private matter concerning the plaintiff, that places the plaintiff before the public in a false light, that would be highly offensive to a reasonable person, and if it involves a matter of public interest, the defendant acted with malice.

Question 52

Intentional misrepresentation

Answer 52

Occurs when the defendant makes a false representation concerning presently existing material facts that defendant either knew was false (scinter) or was made recklessly, knowing that he had insufficient knowledge on which to base the representation, for the purposes of inducing the other party to act on the representation, that the other party, acting reasonably and in ignorance of the falsity, actually relied on it, and was injured.

Question 53

Negligent misrepresentation

Answer 53

Same as intentional but without scienter

Question 54

Interference with contract

Answer 54

Interference with a contract occurs when there is interference which is intentional and improper or unlawful in a contract between two other persons causing one of them to not perform the contract. This requires some act and not merely a refusal to do something.

Question 55

Interference with prospective economic relations

Answer 55

Plaintiff must prove that there was an economic relationship between plaintiff and third parties, knowledge by the defendant of the existence of the relationship, intentional wrongful acts, independent of the interference itself, designed to disrupt the relationship, actual disruption of the relationship, and damages proximately caused by the acts.

Question 56

Tort Damages

Answer 56

Damages must be causal, foreseeable, reasonably, certain, and unavoidable. There is greater latitude for intentional torts.
Economic loss is generally not recoverable in negligence actions unless there is also either a physical injury or injury to property.
Punitive damages are only recoverable if the defendant’s conduct was malicious, willful, or completely reckless.

Question 57

Contribution and indemnity

Answer 57

Contribution allows any tortfeasor who is required to pay more than his fair share to have a claim against other jointly and severally liable parties for the excess he paid.
Indemnity involves shifting the entire loss between parties and is available where there is a right to indemnification.