Elements for Intentional and Negligent Torts

Question 1

Elements of an Intentional Tort (4)

Answer 1

(1) Intent (specific or general)
(2) Act
(3) Causation
(4) Injury

Question 2

Specific Intent v. General Intent

Answer 2

• Specific intent: Purpose/intended to do harm

- General intent: Had knowledge to substantial certainty action would cause harm

Question 3

Elements of Battery (3)

Answer 3

(1) An intentional act by D
(2) that causes harmful OR offensive contact
(3) to the P’s person

Question 4

Harmful Contact v. Offensive Contact

Answer 4

• Harmful contact: bodily contact resulting in “any physical impairment of the condition of another’s body, or physical pain or illness”
• Offensive contact: bodily contact offending a reasonable sense of personal dignity

Question 5

Elements of Assault (4)

Answer 5

(1) D’s Intentional act
(2) that causes reasonable apprehension in P
(3) of imminent
(4) harmful or offensive contact

Question 6

Elements of False Imprisonment (4)

Answer 6

(1) D’s intentional
(2) restraint of P
(3) that results in the confinement of P within a bounded area wherein
(4) P is conscious of the confinement or suffers some harm from it
Note: if there is a reasonable means of escape without P’s losing their dignity, does not constitute false imprisonment

Question 7

Elements for IIED (3)

Answer 7

(1) D who intentionally or recklessly
(2) causes P severe emotional distress
(3) due to D’s extreme and outrageous conduct

Question 8

Elements to Trespass to land (4)

Answer 8

(1) Defendant’s intentional
(2) entry or interference with P’s exclusive possession
(3) of P’s land
(4) without P’s permission

Question 9

Elements of Trespass to Chattel (4)

Answer 9

(1) D’s intentional
(2) interference with P’s use or possession
(3) of P’s personal property
(4) that causes P some injury or damages
Note: actual damages must be proven to recover (nominal does not apply)

Question 10

Elements of Conversion (3)

Answer 10

(1) D’s intentional
(2) substantial interference with P’s ownership, use or right of possession of P’s personal property or unjustifiable and unwarranted dominion and control over P’s personal property
(3) wherein injury to P results

Question 11

What information in documents is protected by Conversion

Answer 11

(1) Literary property
(2) scientific invention
(3) secret plans

Question 12

Technical Injuries for Intentional Torts

Answer 12

Battery
-Harmful or offensive contact
Assault 
-Reasonable apprehension 
False Imprisonment
-Confinement to a defined (i.e. bounded) area
IIED
-Severe emotional distress 
TTL
-Entry onto real property 
TTC
-Intermeddling or dispossession of personal property
Conversion
-Substantial interference or destruction of personal property

Question 13

Elements of a Negligence Action (5)

Answer 13

(1) Duty
(2) Breach
(3) Causation
(4) Damages (actual damages only)

Question 14

Elements to determine the SOC (4)

Answer 14

(1) Reasonable Prudent Person (and professional)
(2) Case law
(3) Non-Tort Specific Statutes
(4) Tort Specific Statutes

Question 15

Elements that must be proven to be covered under TN Good Samaritan law (4)

Answer 15

1. Person acts voluntarily
2. Person renders emergency care
3. Person acts in good faith, and
4. Person does not commit gross negligence

Question 16

Legal Malpractice SOC elements (3)

Answer 16

(1) Attorneys employment
(2) Attorney’s neglect of reasonable duty; and
(3) Such negligence resulted in and was the proximate cause of loss (damages) to the client

Question 17

3 SOC rules that courts can consider in reasonable prudent professional cases

Answer 17

(1) Locality Rule
(2) Same/Similar locality
(3) National Standard

Question 18

3 standards of informed consent

Answer 18

(1) Subjective standard (minority rule)
What the patient would do
(2) Objective standard (TN uses this, majority rule)
What a reasonable prudent person in the patient’s position would have decided if adequately informed of all significant perils
(3) Modified objective standard

Question 19

Constructive Knowledge can be demonstrated by P in 2 ways

Answer 19

(1) By showing that a store employee was present in the immediate area; or
(2) By showing that the substance had been on the floor for such a time that it would have been discovered and removed had the proprietor exercised reasonable care in inspecting the premises

Question 20

Elements for NIED in TN (4) When a plaintiff DOES witness the accident

Answer 20

(1) P be sufficiently near the injury-causing event to allow sensory observation of the event;
(2) the injury to the third-person was, or was reasonably perceived to be, serious or fatal;
(3) P must have a “close” relationship w/ the
injured or deceased party; and
(4) P must present expert medical or scientific evidence that s/he has suffered a severe
emotional injury.

Question 21

Elements for NIED when a plaintiff does NOT witness the accident

Answer 21

(1) the actual or apparent death or serious physical injury of another caused by the D’s negligence;
(2) the existence of a close and intimate personal relationship between the P and the deceased or injured person;
(3) P’s observation of the actual or apparent death or serious physical injury at the scene of the accident before the scene has been materially altered; and
(4) the resulting serious or severe emotional injury to the P must be caused by the observation of the death or injury.

Question 22

The following nonexclusive factors are pertinent to support a P’s claim
that s/he has suffered a serious mental injury

Answer 22

(1) Evidence of physiological manifestations of emotional distress
(2) Evidence of psychological manifestations of emotional distress
(3) Evidence that the P sought medical treatment, was diagnosed with a medical or psychiatric disorder, and/or was prescribed medication;
(4) Evidence regarding the duration and intensity of the P’s physiological symptoms, psychological symptoms, and medical treatment;
(5) Other evidence that D’s conduct caused the P to suffer significant impairment in his or her daily functioning; and
(6) In certain instances, the extreme and outrageous character of the D’s conduct is itself important evidence of serious mental injury

Question 23

Two types of consent

Answer 23

1. Express consent

2. Implied Consent

Question 24

Defense of self (2 elements)

Answer 24

1. Reasonable belief

2. Proportionate force

Question 25

Shopkeepers privilege

Answer 25

a shopkeeper is privileged to detain a person for reasonable investigation whom he reasonably suspects to have taken chattel unlawfully

Question 26

3 elements of informed consent

Answer 26

i. Doctor had DUTY to adequately disclose the material risks before securing the patient's consent ii. If the patient had been informed of the risks, the objective patient would not have consented to the treatment (majority) iii. The adverse consequences that were not disclosed actually occurred

Question 27

Negligence per se (3)

Answer 27

a. P is class of persons statute/regulation is designed to protect b. Harm suffered is type of harm statute/regulation is designed to protect c. Statute/regulation is an appropriate standard of care for civil litigation (tort liability) under the circumstances of the case

Question 28

Effect of violating a statute (3)

Answer 28

i. violation creates only prima facie case from which jury may draw an inference of negligence, which can be rebutted by showing an adequate excuse ii. Majority view: negligence per se; if P was using reasonable care it wouldn’t matter; establishes conclusive evidence of negligence, legal excuse required to be excused iii. Minority view: only some evidence of negligence, should go to a jury to determine

Question 29

Elements to recover in a slip and fall case

Answer 29

a. actual or constructive knowledge of some condition on the premises by owner/operator b. that the condition posed an unreasonable risk of harm c. that owner/operator did not exercise reasonable care to reduce or eliminate risk; and d. that owner/operator’s failure to use such care proximately cause P’s injuries

Question 30

Constructive knowledge could be proved by (2 ways)

Answer 30

(1) showing that store employee was present in immediate area and could have easily seen substance and removed it or (2) by showing that substance had been on floor with such time that it would be discovered and removed if D’s were exercising reasonable care in inspecting premises

Question 31

3 elements of res ipsa loquitur

Answer 31

a. The accident is of the type that does not happen absent negligence b. D had exclusive control over what caused the harm c. action was not caused by P

Question 32

2 elements needed to establish causation

Answer 32

(1) the cause in fact (but-for cause) and | (2) the legal or proximate cause

Question 33

Limitations to NIED

Answer 33

1 - There must be an actual physical injury resulting from the emotional distress 2 - P has the burden of proof their physical harm was caused by D's conduct 3 - The reaction of the P must be one that is “expected of normal persons”

Question 34

Under the MAJORITY rule, these are the requirements for a claim of NEID

Answer 34

i. Plaintiff must be in the “zone of danger” AND | ii. Plaintiff must suffer physical symptoms as a result of the emotional distress

Question 35

Firefighters rule

Answer 35

P’s like firefighters and police officers are not permitted to recover for injuries that result from the negligence that required their assistance and presence on the premises

Question 36

Majority rule: Landlord is liable for harm caused by tenant’s dog IF (4)

Answer 36

1. LL had actual knowledge of the dog’s presence on the leased premises, AND 2. LL had actual knowledge of the dog’s dangerous propensities, AND 3. LL had the ability to control leased premises, AND 4. LL failed to exercise that ability to control

Question 37

2 types of comparative negligence

Answer 37

i. Pure – plaintiff’s damages are reduced in proportion to his own negligence ii. Modified – plaintiff’s damages are reduced in proportion to his own negligence (50% and 51% rule)

Question 38

2 types of Assumption of Risk

Answer 38

Express and Implied

Question 39

Express assumption of the risk

Answer 39

A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm (example, signing a waiver)

Question 40

Implied assumption of the risk

Answer 40

Plaintiff knew of particular risk and made the choice to voluntarily encounter it

Question 41

Elements of Strict Liability

Answer 41

i. Duty to avoid the harm, based on the nature of the defendant’s activity (DUTY) ii. The dangerous aspect of the activity was the cause in fact and legal cause of plaintiff’s injury (CAUSATION) iii. Damages were suffered by the plaintiff (HARM)

Question 42

2 circumstances where strict liability is imposed

Answer 42

i. Wild animals | ii. Certain very hazardous activities (“ultrahazardous” or “abnormally dangerous”)

Question 43

In determining whether an activity is abnormally dangerous, the following factors are to be considered (6)

Answer 43

1. existence of a high degree of risk of some harm to the person, land or chattels of others; 2. likelihood that the harm that results from it will be great; 3. inability to eliminate the risk by the exercise of reasonable care; (start with this) 4. extent to which the activity is not a matter of common usage; 5. inappropriateness of the activity to the place where it is carried on; and 6. extent to which its value to the community is outweighed by its dangerous attributes.