Intentional Torts and Negligence

Question 1

What defines negligence in tort law?

Answer 1

Failing to meet the standard of care, which is what a reasonable person would do in a given situation.

Question 2

What are intentional torts?

Answer 2

Acts that cause physical or emotional harm to another with the intent to bring about that harm.

Question 3

What is battery?

Answer 3

A person is liable for battery when
o They act intending to cause, directly or indirectly, harmful or offensive contact with another [or the imminent apprehension of harmful or offensive contact]; and
o Such contact does occur.
o Offensive
 Injurious to someone’s reasonable sense of dignity.
o Intent
 An act with the purpose of causing such contact/apprehension; or
 Knowledge that such contact/apprehension is substantially likely to occur.

Question 4

How is intent defined in the context of battery?

Answer 4

An act with the purpose of producing a harmful or offensive consequence, or knowledge that the consequence is substantially certain to occur.

Question 5

What does the Eichenwald case illustrate about physical contact in battery?

Answer 5

Physical contact doesn’t have to be direct; it includes situations where a tortfeasor causes a victim to come into contact with harmful elements, such as poison or harmful noises.

Question 6

What is “transferred intent” in tort law?

Answer 6

If you intend one intentional tort and another occurs, you are liable for both; for example, intending to scare someone but accidentally causing them physical harm.

Question 7

What does “extended liability” mean in the context of battery?

Answer 7

If you intend to cause one type of harm but result in another, you are still liable; e.g., intending to scare someone but causing physical injury.

Question 8

What are the elements of assault?

Answer 8

They act intending to cause a harmful or offensive contact with the person of another, directly or indirectly, [or reasonable apprehension of imminent harmful or offensive contact]
- Harmful or offensive contact directly or indirectly occurs [or apprehension of imminent harmful or offensive contact results]
o Offensive = injurious to a reasonable person’s sense of dignity.
o Intent = the purpose to cause harmful or offensive contact or knowing that harmful or offensive contact is certain to occur.
o Imminent = it is going to happen without delay.
o Reasonable Apprehension = there is an expectation that harmful or offensive contact is about to occur.

Question 9

What is the key difference between battery and assault?

Answer 9

Battery involves actual contact, while assault involves the reasonable apprehension of contact.

Question 10

What was the key issue in the Cullison case regarding apprehension?

Answer 10

The lower court ruled that Cullison lacked imminent harmful apprehension due to the conditional nature of the father’s statement.
A higher court reversed, stating that in the moment, Cullison could not follow the conditional statement.

Question 11

What factors contributed to Cullison’s imminent fear?

Answer 11

The presence of a gun, threats from multiple people, darkness, and coercion to stay away from Sandy.

Question 12

What does the court mean by “words alone do not constitute assault”?

Answer 12

Low, non-threatening conversation without other factors does not constitute assault, but threatening behavior can indicate intent.

Question 13

What constitutes false imprisonment (FI)?

Answer 13

Someone is liable for FI if
- They intentionally confine another without privilege or consent by
o Force
o Threat of force
o False assertion of legal authority
o Duress (must be coercive in sense of keeping you from leaving somewhere)
- Within a limited area
- For any appreciable time
- Plaintiff must be aware of confinement or harmed by it.

Question 14

In the McCann case, how were the elements of false imprisonment satisfied?

Answer 14

The plaintiff was confined within a limited area, for an appreciable time, and was aware of the confinement.

Question 15

How did the Wal-Mart employee establish false imprisonment in McCann?

Answer 15

Through physical force (hand on the cart) and false assertion of authority (claiming police were called).

Question 16

What is the “shopkeeper’s privilege”?

Answer 16

A merchant can detain a person for a reasonable time if they have probable cause to believe the person is stealing.

Question 17

Why does the shopkeeper’s privilege not apply in the McCann case?

Answer 17

The statute requires proof of “attempting” theft, which was not established in this situation.

Question 18

What is an affirmative defense?

Answer 18

A defense that justifies a crime despite its elements being met; the defendant must meet the burden of proof.

Question 19

What are the key elements of self-defense?

Answer 19

1) Perception of an actual or reasonably apparent threat to safety.

• Battery, Assault, FI with confinement secured through battery or assault.

2) The force used must not be excessive.

Question 20

What are “stand your ground” laws?

Answer 20

Laws that allow individuals to use self-defense without retreating when faced with a perceived threat, particularly in 35 states.

Question 21

What is the castle doctrine?

Answer 21

The principle that one does not have to retreat from an intruder in their home if they feel threatened.

Question 22

How does consent have a dual nature in tort cases?

Answer 22

The plaintiff must prove consent when it is part of their case, while consent can also serve as an affirmative defense for the defendant.

Question 23

What types of consent exist?

Answer 23

Consent can be expressed/explicit or implied, and it can be assumed. And it can be withdrawn at any time.

Question 24

What is the objective standard for consent?

Answer 24

Whether a reasonable person would believe another is consenting, based on words, acts, silence, or inaction.

Question 25

In what case is silence interpreted as consent?

Answer 25

Wulf v. Kunnath, where ongoing friendly behavior and silence indicated consent to past actions.

Question 26

What is implied consent by law?

Answer 26

In emergencies where a person cannot consent, a doctor can legally act on them without explicit consent.

Question 27

What does the scope of consent mean?

Answer 27

Consent has limits, such as in the context of sports; for instance, MMA fighters consent to the risks involved in the fight (Hunt v. Zuffa).

Question 28

What is the standard of care in negligence actions?

Answer 28

The standard is reasonable care under the particular circumstances, proportional to the danger of the activity.

Question 29

What did the Steward v. Motts case establish?

Answer 29

There is only a reasonable person standard; a reasonable person would handle dangerous substances with more care than harmless ones.

Question 30

How does expertise affect the standard of care?

Answer 30

In Hill v. Sparks, a person with special expertise must use that expertise, as the standard still applies.

Question 31

What is the standard of care for individuals with physical disabilities?

Answer 31

The standard is that of a reasonable person with the same disability (Shephard case).

Question 32

How are adults with mental disabilities treated in terms of standard of care?

Answer 32

In Creasy v. Rusk, they are held to the same standard as a reasonable person, regardless of their capacity to control actions.

Question 33

What is the standard of care for minors in negligence cases?

Answer 33

In Stevens v. Veenstra, it is based on a reasonable child of similar age, knowledge, skill, and experience.

Question 34

When does “negligence per se” occur?

Answer 34

It occurs when violating a statute that sets the standard of care automatically breaches that standard.

Question 35

What are the rules for establishing negligence per se?

Answer 35

1) Statute sets a clear standard. 2) Harm is within the class of harms the statute prevents. 3) Plaintiff is in the protected class. 4) Statute was violated. 5) Causation must be established.

Question 36

What was the key issue in O’Guin?

Answer 36

The statute aimed to protect health and the environment, but it didn’t set a standard relevant to the death of children. However the court ruled in favor of the dead kids by stretching the interpretation of the statute.

Question 37

What is required to establish a breach of duty?

Answer 37

Foreseeability and falling below the standard of care, indicating that the person foresaw the risk but did not mitigate it.

Question 38

What are the elements of negligence?

Answer 38

(1) Duty of care is reasonable ordinary person standard (exceptions: children doing kid things, physically disabled, negligence per se). Duty is a question of law. (2) Breaches duty if: a. A reasonable prudent person would foresee that their actions or inactions might cause harm to persons or property b. A reasonably prudent person would either avoid conduct that create that risk or act to mitigate those risks.) (breach is a question of fact answered by the jury) (3) The plaintiff suffered actual harm. (4) The defendant’s negligence was an actual cause of this harm. (factual causation) (5) The defendant’s negligence was a “proximate cause” of this damages or, as is sometimes said, the damages is within the “scope of liability” of the defendant. (the breach of duty caused some harm, and the type of harm that was sustained was expected by the defendant’s actions).

Question 39

In Goldstein, why was the dental practice not found negligent per se?

Answer 39

The plaintiff’s harm was not within the class of harms the statute intended to prevent, despite a violation.

Question 40

How does Pipher illustrate the assumption of reasonable care by passengers?

Answer 40

Passengers can assume that drivers will operate the vehicle with reasonable care; the jury determines the facts.

Question 41

In the Matthew lawn mower case, what was considered reasonable behavior?

Answer 41

Matthew’s actions in attempting to mitigate fire risks while using the lawnmower were deemed reasonable.

Question 42

What are the traditional requirements for Res Ipsa Loquitur?

Answer 42

1) The accident usually does not happen without negligence. 2) The instrumentality was under the defendant’s exclusive control. 3) The injury was not caused by the injured person’s actions.

Question 43

How has the modern view of Res Ipsa Loquitur changed?

Answer 43

The exclusive control rule is relaxed, allowing for cases where control cannot be established.

Question 44

What must be shown to establish negligence under the modern test?

Answer 44

If the defendant had control near the time of probable negligence, had the authority to control, or if the type of accident typically indicates negligence by the defendant’s class.

Question 45

What is required to prove actual harm?

Answer 45

Proof of actual damages to a person or property, which can include emotional harm, economic damages, and pain and suffering.

Question 46

What types of harm cannot be recovered in negligence claims?

Answer 46

Pure economic injury, pure emotional harm, and future medical illness.

Question 47

What is the test for factual cause?

Answer 47

The “but for” test: “But for the negligent act, the harm would not have occurred.”

Question 48

How does Ziniti illustrate the “but for” test?

Answer 48

The train company was not negligent because the presence of a second sign would not have changed the outcome of the accident.

Question 49

What does increased risk show in terms of causation?

Answer 49

Risky behavior by the defendant that increases the likelihood of harm can establish negligence, even if “but-for” causation cannot be proven.

Question 50

What is duplicative causation?

Answer 50

It occurs when multiple negligent acts cause harm, making “but-for” causation impossible to establish. However, the defendant can still be liable. - Two companies spill salt water simultaneously (this is necessary for duplicative causation), this means that neither company is a but for cause because if either did not spill, there would still be harm. - Preemptive causation means that there are two negligent acts, but not simultaneous, so only the FIRST negligent act is the factual cause.

Question 51

How is liability determined in US v. Carroll?

Answer 51

The cost of preventing the accident (B) versus the probability of occurrence (P) and potential damages (L) shows that reasonable precautions were necessary.

Question 52

What is the significance of notice and opportunity to cure in Renner v. Retzer Resources, Inc?

Answer 52

The defendant can be held liable if they created a hazard, were aware of it, or if constructive knowledge indicates they should have known.

Question 53

How does Walmart v. Wright address private standards?

Answer 53

Private standards are not considered reasonable standards in court, as they may not reflect the reasonable person standard.

Question 54

What is the relationship between custom and negligence?

Answer 54

Industry custom can set a standard of care, indicating that businesses foresee risks and adopt practices to mitigate them.

Question 55

What does T.J. Hooper establish regarding new technology?

Answer 55

Businesses may be liable for failing to adopt new technology if it significantly mitigates risk, even if not widely adopted in the industry.

Question 56

What is the ground floor of due care according to Miller v. Warren?

Answer 56

Regulations set a baseline, but circumstances may require greater care if the defendant is aware of other risks.

Question 57

What are the methods for proving breach?

Answer 57

1) Notice and Opportunity to Cure. 2) Commonsense weighing of alternatives. 3) Deviance from industry custom. 4) B

Question 58

How can Res Ipsa Loquitur be used in cases without a clear alternative?

Answer 58

It can be applied when an accident is one that ordinarily does not happen without negligence, and the circumstances suggest the defendant’s control or responsibility.

Question 59

What was determined in Giles v. City of New Haven regarding control?

Answer 59

Even without proving exclusive control, control over the maintenance of the elevator’s chain could be inferred from the defendant’s responsibilities.