Emmanuel Torts

Question 1

Elements of Negligence

Answer 1

Defendant had a duty to act as a reasonable person would act under same or similar circumstances as to avoid unreasonable risk of harm to others, that defendant breached that duty of care (failed to conform his conduct) in a way that created unreasonable risk of harm, that he was the actual and proximate cause of plaintiffs actual injury or damages.

Question 2

Defenses to intentional torts

Answer 2

Consent
Self-defense
Defense of others
Defense of land/chattels
Recapture of chattels
Merchants right to detention to investigate (shopkeepers privilege)
Necessity (public and private)
Legal Authority

Question 3

Types of Consent

Answer 3

Express (physical or verbal expression of consent)
Implied in fact (objective manifestations that one reasonably interprets at consent, by conduct)
Implied by law (if P unable to consent but a reasonable person would consent in the circumstances and there is not indication that they wouldn’t consent if able to)

Question 4

Is Mistake a defense to intentional tort?

Answer 4

No, So long as D intended to take physical act in question the fact that D would not have engaged in conduct but for the mistake of fact will not by itself be a defense.

Question 5

Consent to an intentional tort is ineffective in what situations?

Answer 5

Consent obtained through duress
Consent obtained through fraud
Plaintiff lacked capacity to consent
Act exceeded scope of consent
Consent to criminal acts are not defenses

(CRIMINAL ACT; DURESS; FRAUD; INCAPACITY;SCOPE)

Question 6

Types of Necessity

Answer 6

Public necessity involves actions taken to avert a public disaster (fire)
Private necessity involves action taken to protect any person from harm or protect specific land or chattels from harm

Question 7

What are conditions of the shopkeepers privilege

Answer 7

There must be reasonable grounds to suspect that the person detained actually took something
The detention must occur in the store or its immediate vicinity
Only reasonable and non deadly force can be used to detain
Investigation must be conducted in a reasonable manner and reasonable time

Effect of Mistake: majority is reasonable mistake does not negate the privilege so long as above requirements are met.

Question 8

When do you have the right to enter someone else’s land to recapture your chattels?

Answer 8

1. If it is not your fault that the goods are on someone else land you have the privilege to enter at a reasonable time and manner to recapture your property. This appleid whether goods got there due to landowners fault, a third party fault or due to no one fault. However you must pay for damage caused unless goods got there due to landowners fault
2. If it is your fault the goods are on the land you have no privilege to enter unless entry is necessary to prevent serious harm to people or chattel itself. If no danger exists, resort to court

Question 9

Under what circumstances will a violation of a criminal statute fail to establish negligence in civil negligence suit?

Answer 9

1. Statute provides a criminal penalty
2. Statue was designed to prevent the kind of harm P suffered
3. P is a member of the class that statute intended to protect

If P proves three elements this establishes D’s negligence. But D can avoid liability even if elements are shown if D can prove:
1. D was reasonably unaware of particular occasion for compliance
2. Compliance would have been more dangerous than violating the statute
3.D reasonably attempted to comply or faced an emergency not of his own making that prevented compliance

Question 10

Are mental characteristics of adults considered in determining standard of care ?

Answer 10

No, an adults mental deficiency will not relieve duty to behave with the degree of care that would be done by an adult of normal intelligence

Compare: Physical characteristics (blind/deaf) are considered in determining standard of care that is a def person is held to the standard of care for a reasonable deaf person in similar circumstances

Compare: Intelligence is taken into account determining conduct for children. Childs behavior is measured against children of like age, experience, and intelligence. (unless child is engaged in adult activity-inherently dangerous)

Question 11

What is a reasonable person?

Answer 11

The reasonable person has ordinary abilities and intelligence.
Standard of care raised for people who are experts or professionals. Will be held to a heightened standard of care for a reasonable person in their field in similar circumstances

Question 12

What’s the general standard of care ?

Answer 12

When you act generally one has a duty to act as a reasonable person would in similar circumstances as to avoid unreasonable risk to others
Consider Circumstance: driving fast negligently or because of an emergency
Objective Standard: D can be negligent even if they were trying to be careful and didn’t mean to harm anyone
Special Duties: Certain groups have an affirmative duty to act when others don’t, or have elevated duty of care beyond that which normally be required of others.

Question 13

Once standard of care is established you determine if Defendant breached that standard. How do you determine breach?

Answer 13

The (1) burden of the defendant to avoid risk and the utility of the defendants conduct are together balanced against (2) the probability of the accident multiplied by the probable gravity of the harm the accident is likely to cause. [learned hand formula]

(BUDREN, UTILITY, PROBABILITY, GRAVITY)

Question 14

Define Negligence

Answer 14

Negligence refers to conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm.

negligent conduct may consists either of an act or an omission to act where there is a duty to act

Question 15

What does the privilege of self-defense entitle?

Answer 15

Entitles one to use reasonable force to prevent threatened harmful offensive contact or confinement. Using only the amount and type of force that reasonably appears necessary to protect yourself against threat. Never use deadly force only if you reasonable believe the other is about to kill you

One is not privileged to use self defense to respond to mere verbal threats, However words accompanied by act of imminent harm (waved fist) is entitled to self defense

Duty to retreat before you use force: majority rule is that one doesn’t have to retreat under any circumstances. Minority rule is that you have to try to retreat unless it is unsafe to do so

Question 16

Limits of Self defense

Answer 16

You can’t use excessive force and can’t use self defense as retaliation

Effect of Mistake: may defend on grounds of self defense even if mistaken about threat or need to use force as long as mistake was reasonable

Effect of Injuring others: When using force and injury occurs to someone other than attacker you are liable to anyone you intentionally injure

Question 17

What damages are available for the personal torts? (Assault,Battery, IIED,False imprisonment)

Answer 17

Nominal Damages: symbolic damages (dollar) for situations where P doesn’t suffer actual damages
General Damages: covers non-economic damages flowing naturally from the wrongful conduct (embarrassment, pain suffering)
Special Damages: covers identifiable economic losses (medical bills)
Punitive Damges: Don’t compensate P but serve to punish D and make example out of them if conduct is particularly heinous. (almost always available for IIED b/c of outrageous conduct)

Question 18

What damages are available for a trespass to land?

Answer 18

1. P will recover for any actual harm caused to land or property on it(trespasser leaves gate open and landowners sheep escape, trespasser is liable for lost sheep), or occupants (physical harm or emotional distress)
2. even if trespasser doesn’t cause any actual harm, P will be able to recover nominal damages-that is symbolic damages, typically a dollar. The plaintiff can prevail in a trespass claim without proof of damages.

Question 19

Under what circumstances may one use private necessity as a defense

Answer 19

When your conduct was reasonably necessary to protect any person from death or serious harm or to protect land or chattels from injury

Effect of Mistake: reasonable mistake doesn’t negate privilege as long as belief that conduct was necessary is reasonable.
Privilege is Limited: while breaking and entering and use of any reasonable non-deadly force, one will still be liable for any resulting damages to plaintiffs property

Question 20

Where D purports to arrest P, under what circumstances and D rely on legal authority as a defense to P’s claim of intentional tort?

Answer 20

Depends on whether D is an officer.

Where a felony has just been or is being committed in D’s presence, D may make the arrest whether D is an officer of a private citizen.

Where a felony has been committed in the past outside of D’s presence, the rules depend on whether D is an officer. If D is an officer he’s OK so long as he reasonable believes that the felony has been committed and reasonable belief that P is the criminal. If D is a citizen he takes risk of reasonable mistake

Question 21

Under what circumstances is one entitled to rely on public necessity as a defense to a trespass or conversion claim?

Answer 21

When trespass or conversion seemed reasonably necessary to avert a public disaster. Public necessity is a complete privilege

Question 22

What are the three basic questions to consider in analyzing negligence issue?

Answer 22

1. What did D do?: Analyze D’s duty of care was and whether they breached it. Duty and breach together determine whether negligent conduct exists. Normally D’s breach if any will consist of an affirmative act in other cases it is a failure to act where there was a duty to act.
2. What were the results of D’s conduct?: Did D’s conduct actually cause any of P’s injuries and did the conduct proximately cause those injuries.
3. What did P do? Are there any defenses based upon P’s contributory negligence or comparative fault, assumptions of the risk o failure to mitigate damages

Question 23

If an owner of goods reasonably, but mistakenly believes that a third person is wrongfully in possession of the owners goods can the owner recapture those goods?

Answer 23

No, One who asserts the privilege of recapture of chattels takes the risk of even a reasonable mistake of fact as to whether the conditions for the privilege apply. Recapture of chattel if different from defense of property because one who is attempting recapture is an aggressor whereas the defining property merely seeks to maintain status quo.

D reasonably believes that a bike parked in front of P’s house is the one stolen from him last week and D purpose to recapture it. D will be liable for trespass to chattels and/or conversion and will not be able to claim privilege of recapture. if in fact the bike is a different one that belongs to P

Question 24

Under what circumstances can you use force against the person of another to recover personal property

Answer 24

Conditions for recapture of chattels: If one has been wrongly disposed of personal property you can use reasonable non deadly force to get it back so long as:
1. you are in fact entitled to immediate possession of the property
2. you’ve already made a demand for its return (or demand seems futile)
3. you’ve acted promptly under all the circumstance
4. the person who’s got the property is one who’s at fault

Question 25

What formula used both to describe duty of reasonable care and to analyze its possible breach?

Answer 25

Learned Hand Formula: B

Question 26

How does the existence of a relevant state affect the defendant's duty of care?

Answer 26

It depends on whether statue is civil or criminal, whether defendant complied with statute. Civil Statute: if D complies evidence that D acted reasonably but its not conclusive because statute could provide minimal standards not reasonable ones. Reasonable standard controls. if D Violated P will sue under the statute so I won't matter whether statutes existence changes the relevant common law principles.

Question 27

Must an individual act affirmatively for the benefit of others?

Answer 27

No; as a general rule the law imposes no such duty. However courts have given exceptions, which require D take affirmative and careful steps to aid P in certain circumstances: 1. D's act created the peril 2. A special relationship mandated affirmative assistance 3. D have undertaken to act for P's benefit

Question 28

Often stated that one owes a duty of care only to foreseeable plaintiffs. Palsgraf v. Long Island. Why does this foreseeable-plaintiff issue not make must a difference in the real world?

Answer 28

Majority opinion CARDOZO said duty of care extends only to foreseeable plaintiffs within the zone of danger Minority opinion ANDREWS said defendants owe a duty of care to anyone suffering injuries as a result of the defendants negligence, regardless of whether injury to him was foreseeable or not

Question 29

Under what circumstances is one entitled to use the privilege of defense of others to avail liability for an intentional tort?

Answer 29

You may use reasonable force to protect third parties who are threatened with any kind of immediate harm. As with self defense you're only entitled to use reasonable force otherwise you'll be liable for battery for any force that exceeds what the circumstances merit.

Question 30

Under what circumstances are you entitled to use force to defend property?

Answer 30

1. the intrusion isn't privileged 2. reasonably believe force is necessary to preen or terminate the intrusion 3. demand that intruder desist before you use force (demand not necessary if it appears that it would be dangerous or futile) 4. use only as much force as appear stop be reasonable necessary to protect the property.

Question 31

What are some issues with defense of property?

Answer 31

Effect of mistake: entitled to a reasonable mistake as to the necessity of using force. however not entitled to a reasonable mistake as to whether the intrusion is privileged-that is if the intrusion is privileges you cant use force against intruder even if you reasonable believe intrusion isn't privileged. Use of deadly force: may never use deadly force just to protect property. Only use deadly force when the property invasion is coupled with a reasonable fear of serious bodily harm (intruder as has a weapon) Effect of Privileged Intrusion: if P enter property under a privilege of their own, not entitled to use force to expel. Exposing intruder to a greater danger: you may no expel even an unprivileged intruder so as to put him in a position of unreasonable physical danger

Question 32

What are the intentional torts?

Answer 32

Battery Assault False Imprisonment Intentional Infliction of Emotional Distress (IIED) Trespass to Land Trespass to Chattels Conversion

Question 33

What does intent refer to ?

Answer 33

a persons desire that certain consequences result from their actions or even if they don't intend the results, knowledge that those results are substantially certain to occur as a result of their actions.

Question 34

Difference between negligence and intent?

Answer 34

Negligence turns upon the likelihood of a result where able intent involves the desire for a certain result to occur. For negligence you don't want a result to occur nor is it certain to do so rather the conduct creates a foreseeable risk of harm. For intent you want a result to occur or you know with substantial certainty that the result will occur whether desired or not If the conduct doesn't rise to the level of intent you can't be liable for intentional tort however you may still be liable for negligence. (firing a gun into a crowd)

Question 35

What's the difference between intent and motive

Answer 35

Intent focuses on the desired consequences of an act Motive focuses on the reasons for desiring those consequences.

Question 36

What is an act for purposes of intentional torts?

Answer 36

a voluntary movement Tort liability depends on an act (or a failure to act when one has a duty to act) Acts don't encompass involuntary movements. (seizures)

Question 37

Elements of Battery

Answer 37

Plaintiff must prove (1) that D committed a voluntary ACT (2) That D intended to cause a harmful or offensive contact to P (3) That D's act caused a contact to occur that was either harmful or offense to a persons reasonable sense of personal dignity. (AIC: ACT, INTENT, CONTACT)

Question 38

To be liable for battery must the defendant directly contact the plaintiff's body?

Answer 38

No. One is liable for battery even if the harmful or offensive contact is only indirect, such as with the plaintiff's clothing, and object they're holding or anything else that is so closely connected with their body that the contract would be as offensive as a contact with the body. Same goes for setting in motion a series of events designed to bring about a harmful or offensive contact

Question 39

For a battery, must the defendant intend to bring about the same harm that the plaintiff actually suffers?

Answer 39

No. Liability for battery is broad. So long as the required intent is shown and any resulting contract is proven to have been harmful or offensive, it doesn't matter that D intended one type of contract and actually brought about a different type.

Question 40

What is the standard for determining whether a contact is harmful or offensive for purposes of battery?

Answer 40

Contact must harm of offend a reasonable person of ordinary sensibilities (one not unduly sensitive as to his dignity) Even if the victim himself is harmed or offended, there will be no liability if a reasonable person would not be harmed or offended

Question 41

Defenses to battery

Answer 41

Self defense, consent, defense of others, property, retaking land retaking chattels, necessity, discipline, legal authority, detention for investigation shopkeepers privilege

Question 42

What damages are recoverable for a battery?

Answer 42

All physical and mental injury flowing from the wrongful conduct. If victim can't prove any actual damages they'll get nominal damages (which are a token amount of damages like a dollar to declare that D violated P's rights) Nominal damages are generally available for intentional torts where the vicitm's right have been violated (legal injury) but not actual damages or harm has been incurred. If D acted with "malice" (intent to cause injury) P can probably recover punitive damages, these damages are intended to punish the D not compensate P

Question 43

Elements of Assault

Answer 43

person is liable for assault if they prove (1) D committed an act (2) D intended to cause P to suffer the apprehension of a harmful or offensive contact (3) That D's act created in P a reasonable apprehension of imminent harmful or offensive contact with P's person. (P need not fear but merely the belief that a harmful or offensive contact will occur. (AIRA: ACT, INTENT, REASONABLE APPREHENSION)

Question 44

Can words alone constitute an assault ?

Answer 44

it depends, courts take into account the words but all surrounding circumstances. A raised fist attached to words can put one in apprehension of imminent contact

Question 45

Can a threat to commit physical violence sometime in the future constitute and assault?

Answer 45

No. To constitute an assault there must be a reasonable appearance that the harmful or offensive contact being threatened is imminent. P has to believe that D has present ability to carry out the threat.

Question 46

For an assault must the victim be afraid?

Answer 46

No. The victim must apprehend harmful or offensive contact, but he doesn't have to be afraid. "Apprehension" means that P has belief that if she doesn't take action, a harmful or offensive contact will soon occur. P's right to recover is not negated by the fear or lack thereof.

Question 47

Elements of False Imprisonment

Answer 47

D falsely imprisons P if D (1) acts intending to confine P within boundaries fixed by D (2) D' act directly or indirectly results in such a confinement of P (3) P is conscious of the confinement or is harmed by it. (CIA: CONFINEMENT, INTENT, AWARENESS)

Question 48

Major defenses to false imprisonment

Answer 48

1. Consent: negates wrongfulness of detention 2. Legal justification: If D is authorized to detain or confine P no tort exists. once justification is removed or invalid false imprisonment can occur 3. Shopkeepers privilege: grants store owners the right to detain for a reasonable person based upon reasonable suspicion that person has stolen in order to investigate

Question 49

If there exists a reasonable means of escape, could an area ever be considered bounded?

Answer 49

Yes, if the plaintiff was unaware of the means of escape. Its not the existence of such a mean so escape that counts but plaintiffs knowledge of it. Even if plaintiff is aware of the means of escape that fact won't furnish a defense unless the means is reasonable. Plaintiff need not take a dangerous route to escape

Question 50

For False imprisonment must the restraint take the form of a physical restriction on the plaintiff?

Answer 50

No. Restraint can also be threats of force if plaintiff tires to leave or duress. Mere moral or social pressure isn't enough to satisfy the confinement element of false imprisonment.

Question 51

What are the elements of a claim for false arrest ?

Answer 51

A wrongful confinement under guise of legal authority requires P to prove: (1) D asserted legal authority to detain P (2) P believed that D has the authority to detain him (3) P submitted to D's authority P's will (4) D in fact lacked legal authority for the detention

Question 52

Damages recoverable for false imprisonment

Answer 52

Plaintiffs are entitled to compensation for loss of time, physical discomfort and inconvenience , physical illness resulting from the confinement, mental suffering and humiliation. If plaintiff suffered no actual damages he will be entitled to nominal damages Plaintiffs often get punitive damages here because courts want to deter D's behavior

Question 53

Where defendant attempts a battery but fails can the doctrine of transferred intent apply to let the victim recover for assault?

Answer 53

Yes. If and actor intends to commit a battery by hitting someone but misses, the actor has not committed a battery because no harmful or offensive contact has actually occurred. However actor is liable for assault if the intended victim is aware of the attempted battery and suffers reasonable apprehension of a harmful or offensive contact. The actors original bad intent transfers from the tort of battery to the tort of assault and vice versa

Question 54

Elements for Intentional Infliction of Emotional Distress

Answer 54

Is the intentional or reckless infliction by extreme and outrageous conduct of sever emotional or mental distress even in the absence of physical harm (1) D committed an act constituting extreme and outrageous conduct (insults won't suffice) (2) D intended to cause or recklessly caused, P to suffer sever emotional distress(3) D's conduct in fact caused P to suffer severe emotional distress

Question 55

Is it sufficient for the "act" element of the tort of intentional infliction of emotional distress that the plaintiff was outraged by the defendant's conduct?

Answer 55

No. It's not enough for P to show they were in fact outraged-must prove that the act was so extreme as to cause the average person to feel outraged. The conduct must be so "outrageous in character, and so extreme in degree as to go beyond all possible bound of decency , and to be regarded as atrocious and utterly intolerable in a civilized community"

Question 56

Can mere words suffice for a claim of intentional infliction of emotional distress?

Answer 56

Yes. Unlike assault where words alone will rarely suffice mere words will often be enough for IIED. However mere insults generally aren't actionable, the words have to be truly outrageous and go beyond the bounds of decent which insults alone won't do.

Question 57

What degree of harm must a plaintiff demonstrate in oder to recover for intentional infliction of emotional distress ?

Answer 57

Plaintiff must show they suffered sever emotional distress. Courts consider the intensity and the duration of the distress as the primary factors in assessing whether plaintiffs suffering was severe enough to warrant recovery.

Question 58

For emotional distress claims the defendant's conduct has to be extreme and outrageous. But in certain circumstances the degree of outrageousness is lowered. What circumstances are those?

Answer 58

1. When defendant knows that the victim is a member of a group with heightened sensitivities ( children, mentally infirm, pregnant, elderly) 2. When defendant knows of the victims special sensitive even if those sensitivities wouldn't otherwise be obvious 3. When the defendant is a public utility (innkeeper or common carrier) and the victim is a customer. In such cases the defendant will be liable for gross insults or indecent language that wouldn't otherwise be outrageous enough to give rise to an emotional distress claim

Question 59

Does the doctrine of transferred intent apply to emotional distress?

Answer 59

Doctrine doesn't apply to IIED. If D tired to inflict emotional distress on A and B suffers distress by watching as a general rule D's intent won't be deemed transferred from A to B 2 limited scenarios where a Plaintiff will be able to recover for IIED based upon conduct directed on someone else 1. P is a member of the intended victims immediate family and is present at the time of the outrageous conduct (even if P doesn't suffer bodily harm 2. P is not a member of the intended victims immediate family but (a) P is present at the time of the outrageous conduct and (b) P suffers some form of bodily harm (not just emotional distress) as a result of witnessing D's conduct.

Question 60

Regarding intentional torts, what are the two major varieties of transferred intent?

Answer 60

Transfer of intent between torts is recognized. Transferred intent between victims family is recognized as supplying the requirement for intent when an actor intends to commit a tort against one victim but injures another instead

Question 61

Elements of Trespass to Land

Answer 61

the intentional and unauthorized physical invasion of P's land. (1)D committed a voluntary act (2) D physically invaded P's exclusive possessory interest in real property without P's consent (3) D intended to come in contact with the land in question- mistake does not negate liability. (APII: ACT, PHYSICAL INVASION, INTENT)

Question 62

Major defenses available for trespass to land

Answer 62

Consent: If the one with the possessor interest in the land has given consent to D to come onto the land, D's presence is in no was inconsistent with P's right to exclusive possession-the consent prevents the tort from occurring. (D can exceed the scope once consent expires) Necessity: Public necessity allows one to make reasonable encroachment on another's lands for the purpose of avoiding and imminent public disaster. This defense is absolute. Private necessity allows D to enter P's land when necessary to help D avoid loss of life or property. Defense is limited D still must pay actual damages caused to P by the entry but no nominal or punitive damages available

Question 63

Elements to Trespass to chattels

Answer 63

Trespass to chattels consists of intentionally interfering with personal property in someone else possession (1) D committed a voluntary act (2) D intended to act upon or come into contact with the personal property of another (3) D interfered with P's right of possession in chattel [by dispossession or intermeddling] (4) P either possessed the chattel or hand the immediate right to posses it (AIIP: ACT, INTENT, INTERFERENCE, POSSESSION)

Question 64

Must plaintiff demonstrate actual harm in order to recover for trespass to chattels?

Answer 64

In cases of dispossession (taking the property out of P's possession) NO. Law recognized the plaintiffs right to recover at least some damages-nominal in nature-for any trespass to chattels involving and act of dispossession. On the other hand intermeddling without any loss of possession by the plaintiff. YES the law demand that plaintiff demonstrate some actual harm in order to recover. No nominal damages are available for intermeddling

Question 65

Elements of Conversion

Answer 65

Intentional interference with P's personal property that is so substantial that it's fair to require D to pay the property's full market value. (1)D substantially interfered with P's right of possession in personal property, in a sufficiently serious way as to justify ordering D to pay the property's full market value (2) D intended the act that constitutes the assertion of dominion and control (3) P was either in possession of the chattel or had the immediate right to possess it. (DIP: DOMINION, INTENT, POSSESSION)

Question 66

What is the principal difference in legal consequence between a finding that na interference with another's property is conversion and a finding that the interference is trespass to chattels?

Answer 66

Presumptive damage recover for a conversion is the fair market value of the property at the time and place of conversion. D typically has to pay just for the damages actually caused not entire value of the item. Conversion occurs when D's intentional interference with P's personal property is so substantial as to make it fair to require D to pay the full value of the item

Question 67

What effect does defendants good faith have in a conversion claim?

Answer 67

Defendant can be liable for conversion regardless of his good faith. However good faith is one of the factors considered in measuring the seriousness of the interference. (other factors include extent to which defendant exercised dominion and control over the chattel the inconvenience to plaintiff the harm done to the chattel)

Question 68

What is the main factor in determining when an act of interference is sever enough to constitute a conversion?

Answer 68

Seriousness of the interference with P's ownership rights. In a conversion claim damage to the personal property must be so egregious as to merit D's paying its full value in damages. Thus not all trespasses to chattels are conversions but all conversions are trespasses to chattels

Question 69

Can negligence be the basis for an action in conversion?

Answer 69

No. Defendant's assertion of dominion and control over the chattel involved must be intentional (but as long as the assertion of control is intended, defendant's state of mind about surrounding facts, like who owns the item, is irrelevant. So mistake of fact no matter how reasonable is normally no defense)

Question 70

What are the three primary means of proving a negligence claim?

Answer 70

1. Direct evidence 2. Circumstantial evidence (res ipsa loquitur) 3. Negligence per se

Question 71

What is res ipsa loquitur

Answer 71

"the thing speaks for itself" is a doctrine allowing the use of a particular type of circumstantial evidence of negligence. it permits the fact-finder to infer negligence where there is no direct evidence of negligence. P is deemed to have met burden of producing evidence of D's negligence.

Question 72

What requirements are necessary to apply res ipsa loquitur?

Answer 72

To succeed in claim of res ipsa loquitur: 1. There is no direct evidence of how D behaved in connection with the event that caused the injury 2. The event is of a kind that would not normally occur in the absence of negligence 3. D was in exclusive control of the instrumentality causing injury 4. P did not voluntarily contribute to the even that caused their injury

Question 73

What's the difference between cause-in-fact and proximate cause?

Answer 73

Cause-in-fact is the determination using either the "but for" test (single cause) or the "substantial factor" test (multiple causes) of whether D's act actually brought about P's injuries. Proximate cause (legal cause) involves the police considerations limiting the scope of liability, determined promptly on the concept of foreseeability of risks and consequences. For proximate cause ask "was P's injury within the scope of risk created by D's negligence"

Question 74

What is the traditional test used to determine cause-in-fact?

Answer 74

"But for": D's conduct is considered a cause-in-fact of an event if the even would not have occurred "but for" D's conduct. This can happen whether D's conduct is the sole cause or one of several concurrent causes (each of which was necessary to the event). This is the standard test for determining whether D's conduct is the cause-in-fact of an event P need only prove but-for causation by a preponderance of the evidence (i.e that the injury probably would not have occurred if D had not been negligent)

Question 75

Causation in Fact

Answer 75

actual cause: Did the defendant in fact cause the plaintiffs injury?

Question 76

Proximate Cause

Answer 76

were the consequences of defendant's conduct sufficiently foreseeable (as opposed to bizarre or unusual) that as a policy matter its fair to hold defendant liable?

Question 77

What is an intervening cause?

Answer 77

1. comes into active operation 2. in producing the result 3. after defendant's negligent act 4. from a source independent of defendants negligence

Question 78

What are foreseeable intervening causes?

Answer 78

Subsequent forces that: 1. one should reasonably anticipate or 2. those that defendant should reasonably anticipate under the particular circumstances. Intervening foreseeable causes do not interfere with the defendant's prior negligent act being considered a proximate cause. Unforeseeable intervening acts are "superseding" and are treat as preventing the defendants act from being deemed the proximate cause

Question 79

Individuals are responsible for foreseeable intervening causes of damage. Under this rule, what must be foreseeable, the intervening act itself or the result?

Answer 79

The key is on the intervening act rather than the ultimate result. If the act was reasonably foreseeable, proximate cause is not negated by the fact that the ultimate result was a very unlikely consequence of the intervening act.

Question 80

In general, are parents vicariously liable for the torts of their children?

Answer 80

No, on the theory that parents typically lack the control over their children's acts that would justify imposing vicarious liability. However there are situations where a parent is liable for a child's tort directly-due to parents own negligence 1.Giving the child a dangerous object, which the child lacks the maturity or judgement to control 2. Not protecting against a dangerous tendency the parent knows the child has 3. not controlling child when the parent and child are together 4. not warning others of a child's known dangerous tendencies

Question 81

What is a Dram Shop Act?

Answer 81

It is a statute that imposes civil liability on a liquor vendor for torts caused by a purchasers drunkenness. Minority rule. Most Dram Shop Acts are applicable against commercial suppliers only (bars or liquor stores) not private individuals (social hosts)

Question 82

What is imputed contributory negligence?

Answer 82

Bars the plaintiff from recovery due to someone else's negligence. There are only 3 situations in which someone else's negligence will be imputed to the plaintiff. (1) principal-agent (2) joint venture (3) a suit based on injury to someone else (e.g wrongful death or loss of consortium-the victim's contributory negligence will be imputed to plaintiff)

Question 83

Situations where another's contributory negligence won't be imputed to the plaintiff include:

Answer 83

1. A parent's contributory negligence won't be imputed to his child 2. a spouses contributory negligence won't be imputed to the other spouse 3. A driver's contributory negligence won't be imputed to a passenger (unless driver is passenger's agent or employee)

Question 84

What is an automobile guest statute?

Answer 84

Found in few states mandating that non-paying passengers cannot normally sue the driver of a vehicle for negligence. Statutes typically allow suits is passenger;s injuries resulted from conduct by the driver more serious than mere negligence (i.e. gross negligence or recklessness- the standard varies from jurisdiction to jurisdiction)

Question 85

What is immunity?

Answer 85

It is something that insulates the defendant from liability due to her status, position, or relationship to the plaintiff. It used to be that there were significant and absolute immunities for instances spouses couldn't sue spouses in tort due to spousal immunity; the government couldn't be sued due to sovereign immunity. The modern trend is to limit or abolish most immunities, so they don't pose nearly as significant an obstacle to plaintiffs as they used to.

Question 86

Spousal immunity

Answer 86

largely abolished or limited some states abolish only for intentional torts others for all torts, intentional and negligent

Question 87

parent/ child immunity

Answer 87

limited in most states to matters relating to the exercise of parental discretion. No immunity for negligent acts unrelated to such parental-discretion issues (driving a car negligently and hurting your child give rise to no immunity in most states today)

Question 88

Charitable immunity

Answer 88

largely abolished or limited (typically abolished for charity hospitals)

Question 89

Governmental immunity

Answer 89

Depends on whether the government you're talking about is federal, state, or local

Question 90

Federal Immunity

Answer 90

Greatly diminished by the Federal TORTS Claims Act (FTCA) which allows negligence claims against the federal government as well as most intentional tort claims based on actions by federal investigative or law enforcement officers. But there is an important exception for discretionary decisions made by federal employees involving public policy here there is still immunity.

Question 91

State and City immunity

Answer 91

State: largely curtailed City: some states make distinctions between propriety and governmental functions only. Proprietary function are functions that normally would be carried out by the private sector- e.g providing electricity or building and maintaining streets. Governmental functions are educations that are uniquely governmental- e.g. police, fire, courts, public parks.

Question 92

Governmental Official Immunity

Answer 92

Depends whom you're talking about Judges and high-ranking federal executive officials (cabinet membersO absolutely immune from tort liability for acts within the scope of their duties. State officials: states are split some make officials immune from negligence others make a distinctions between discretionary and ministerial functions and abolish immunity for ministerial functions while retaining immunity for discretionary functions carried out honestly and in good faith.

Question 93

Ministerial and Discretionary functions

Answer 93

Ministerial functions= simply following orders, with no discretions (road repair) Discretionary functions=some decision making power (deciding where a street should be placed) state officials may be personally liable under a federal statute which makes a person actin under color of state law liable for damages for depriving anyone of federal constitutional rights (the right to equal protection)

Question 94

What is joint and several liability?

Answer 94

Doctrine applies where there's more than one tortfeasor and the damages they each cause are indivisible when the doctrine applies it makes the tortfeasors all jointly liable for any resulting judgement against them. Furthermore, each of them is also individually liable for the whole judgment (in case the plaintiff sues any one of them instead of all of them)

Question 95

Where joint and several liability applies

Answer 95

3 principal situations commonly seen: 1. the tortfeasors act in concert (e.g one tortfeasor grabs the plaintiff and the other steals his wallet) 2. The tortfeasors fail to perform a common duty to the plaintiff (e.g. both a building management company and an elevator maintenance company negligent to maintain and elevator and if it falls, injuring plaintiff) 3. Most important, the negligence of several tortfeasors acting independently combines to produce an indivisible injury to the plaintiff (e.g the drivers of two cars negligently hit a pedestrian)

Question 96

What is contribution?

Answer 96

Sharing of payment for joint liability. Most states apply contribution in some form. Doctrine applies where there are joint tortfeasors each responsible for inducible portion of damages for negligence, but the plaintiff doesn't sue all of them; instead, she proceeds against only one of them and recover a judgement for the full amount of her damage. (or plaintiff sues all of them but collects the entire judgement from only one of them, as joint and several liability permits) The losing defendant who has paid more than his pro rata share can then seek a partial reimbursement, or contribution form the other joint tortfeasors such that they each bear a fair share of the burden.

Question 97

What is indemnity?

Answer 97

Unlike contribution (which is a sharing of liability), indemnity is a 100% shifting of liability. That is, indemnity shifts the burden away from a secondary tortfeasor who's has a judgement entered against him and onto the primary tortfeasor. Indemnity works like this:

Question 98

Indemnity will be permitted when:

Answer 98

1. Where an employer is self under respondent superior for an employee's tort committed within the scope of employment and the employer pays the judgement 2. where a retailer pays a judgement for a product defect caused by the manufacturer