Memory

Question 1

Transferred Intent

Answer 1

5 traditional, but can argue for more!?

Question 2

False Imprisonment

Answer 2

• Act
• Intent to confine another within fixed boundaries
• Unlawful confinement or restraint
• Victim is conscious of confinement or harmed by it

Question 3

Malicious Prosecution

Answer 3

–Criminal Or civil litigation, by D vs P from original suit
–Termination of process in favor of original P
**NB: dropped charges do not count
–There is malice:
1-Improper purpose (R2D)
2-Wanton disregard of facts or the law
3-showing ill will
–No probable Cause
–Damages to plaintiff

Question 4

Abuse of Process

Answer 4

Use of legal process civil/criminal
-within litigation
-usually for interim procedures
against another person
-to accomplish a purpose for which it was not designed

Question 5

Intentional Interference with Contractual and Economic Relations /Business Advantage

Answer 5

• Valid contractual relationship or business expectation
• knowledge
• Improper and intentional interference
• Causing breach
• Resultant damage

Improper - Factors:

• Nature of conduct
• Motive
• Interest interfered with
• Interests advanced by interferer
• Social interest (freedom of action of interferor, contractual interest of other party)
• Proximity
• Relations between parties

Question 6

Intentional Misrepresentation

Answer 6

(1) false representation in reference to a material fact
(2) made with knowledge/reckless disregard of its falsity
(3) and with the intent to deceive / induce reliance
(4) with justifiable action taken in reliance upon the representation
(5) resulting in pecuniary harm
Misrepresentation resulting in physical harm is a separate tort: §310.

Question 7

IIED

Answer 7

• Outrageous and extreme conduct
• Intent/Recklessness
• Causation
• Serious emotional harm

Think about NIED too

Question 8

Defenses to Intentional Torts

Answer 8

• Self Defense
• Defense of Others
• Consent
• Necessity

Question 9

Self Defense

Answer 9

• Use of reasonable force
• Defendant reasonably believed
• Necessary
• To prevent immediate harm

Some jx. Reasonable Mistake

Question 10

Consent

Answer 10

• Autonomous adult has the right to waive their interest
• Express: objective manifestation
• Implied: custom, conduct
• Note: was consent induced by duress or material fraud?
• Children, mentally incapacitated, or someone coerced cannot consent!

Question 11

Necessity

Answer 11

• Reasonable belief of imminent danger to greater interest
• Do minimal harm to protected interests
• Liable for damages if he intentionally uses another’s property for his own property’s benefit and he damages that property

Question 12

Manufacturing Defect

Answer 12

Strict liability - compare to intended design

OR Res Ipsa

Question 13

Res Ipsa

Answer 13

Res Ipsa Krebs:

• Cause known
• Instrumentality under exclusive control
• Instrumentality unlikely to cause the harm w/o neg on part of controller

Res Ipsa Modern:

• -Evidence supports inference someone was neg.
• -evidence supports inference it was D that was neg

Question 14

Design

Answer 14

Standard:
- Negligence like approach’
2 tests
- Consumer expectations (ordinary customer would use product)
- risk utility tests (show better design)

Risk utility factors:Factors to consider

Gravity of danger posed by challenged design
Likelihood that danger will occur
Mechanical feasibility of a safer design
Financial cost of different design
Adverse consequences to the product and the consumer that would result from alternative design

Question 15

Warning

Answer 15

Standard:
Negligence-like approach - reasonable warning

Important questions:

• Was there a warning at all (and should there have been?)
• If warning was content clear/sufficient?
• Format: Size? Placement?

Question 16

Exceptions to Breach

Answer 16

• Physical disability
• Child standard of care
• Negligence per se
• Professional negligence/medical malpractice

Question 17

Hand Formula

Answer 17

Burden < (Probability x Loss)

Question 18

Excuses to Negligence Per Se

Answer 18

• -Incapacity (incapable of compliance)
• -No knowledge of occasion for compliance (i.e. stop sign covered by tree example)
• -Emergency
• -Compliance involves greater risk

Question 19

Medical Malpractice

Answer 19

Informed Consent
- Proper consent? No - then battery
- Flawed consent?
- Breach: did physician negligently omit information that should have been provided?
Physician Standard: would reas. physical disclose?
Patient standard: would reas. patient find the information material?

Causation -
would P have agreed if had missing info?
Objective Standard: Would RP have gone through with it if they knew of the risk?
Subjective Standard: Would this patient?

Malpractice Negligence

• Duty
• Breach, (but with professional standard)
• causation (but with physician or patient standard)
• Scope of liability
• Damages

Can use Res Ipsa for causation
+ Ybarra Extension
–Circumstances suggest at least one D at fault
–Innocent P should recover and only way to do justice
–impossible case
**Most states limit to unconscious victims; judges hate to make special rules just cuz we dont like the results.

Question 20

Exceptions to Scope Foreseeability

Answer 20

• Medical complications
• Eggshell Skull
• Rescuer Rule

Question 21

Bystander Liability

Answer 21

• do negligence claim for principal
• usually NIED

3 tests
- Zone of Danger

• Dillon Foreseeability
  + Proximity to accident
  + direct sensory observation
  + Relationship to V (argue for others)
• Thing
  + Present at scene
  + sensory/contemporaneous awareness of harm
  + close relationship to V (usually family)

Question 22

Tarasoff

Answer 22

1) If a therapist (maybe beyond)
- -Has a special relationship with perpetrator
- -Determined/should have determined that perpetrator is a danger to others
- -Foreseeable victim; possibilities
- —Clearly identifiable (Thompson)
- —Just foreseeable (Cansler)
2) Then: duty of reasonable care or duty to warn
3) *Special relationship between either the person who needs to be controlled or the foreseeable victim of the conduct is sufficient, and does not need to be a relationship to both.

Question 23

Landowner Duty to protect form criminal acts

Answer 23

• must be foreseeable

then uses one of four tests

• Specific harm
• Prior similar incidents
• Totality of circumstances
• Balancing Test

Question 24

Landowner Duty

Answer 24

Invitee
-Due Care

Licensee

1) warning against/fixing known hidden (non-obvious) traps or danger
- Need to warn or fix
2) no willful/wanton injury

Trespasser
duty to
unanticipated = no willful/wanton injury

duty to
anticipated
1) warning/fixing of artificial hidden traps known to owner
2) no willful/wanton injury

duty to child trespassers - attractive nuisance
3 approaches for child trespass

Zinc majority = attractive nuisance must have drawn the children onto the land (invitation to come on the land)
Attractive nuisance elements (children see from far off land…)

Zinc dissent = if children see on the land an attractive nuisance, the owner might be liable if he was aware children might be on the land and failed to make artificial hazards safe/warn, regardless of how children got onto the land. Focuses on what harmed the children.

Restatement 339
-Children see, from far-off land
-Artificial condition (natural = beach, artificial = something you built, like a swimming pool)
-Hazardous
-Unfenced
-Unhidden
-Attracts child on land
If child harmed by condition, owner might be liable

Question 25

Express AoR

Answer 25

P signed a waiver 1) Is waiver for negligence only (no - shortly consider severability) 2) ambiguous (interpret against drafter) 3) against public policy (Tunkl) • Type of business suitable for public regulation • Essential service • General service (open to public) • Advantage in bargaining strength • Standardized contract • Control: transaction places buyer under control of seller

Question 26

Implied AoR

Answer 26

P must have subjective knowledge and appreciation of risk + voluntary exposure to risk. If P tried to minimize or avoid risk, no assumption of risk.

Question 27

Primary Implied Assumption of Risk

Answer 27

a sport + inherent risk to sport → participants/spectators of sports assume risks inherent to that sport Identify scenario (P took risk on themselves), implied, primary, AND comparative

Question 28

Pre-Natal Torts

Answer 28

``` Wrongful Conception (birth of unwanted) - recovery limited to medical and pregno ``` ``` Wrongful Birth (Negl causin birth with disability) - recover pregno and maybe costs of disabled child rearing ``` Wrongful Life (Child sues for own birth - in CA, can allow damages ,most wont - can get special damages

Question 29

Defamation

Answer 29

1) defamatory language on the part of the defendant 2) that the defamatory language was of/concerning the plaintiff 3) Negligent/Reckless+ disregard for falsity 3A) Public Figure? Actual Malice. 4)publication of the defamatory language by the defendant to a third person 5) damage to the reputation of the plaintiff

Question 30

Pure Economic Loss

Answer 30

Biakanja Factors: 1) was transaction intended to affect Plaintiff ? 1) was harm foreseeable 3) degree of certainty P suffered injury 4) how close is D's conduct related to the injury 5) how morally culpable was the defendant 6) policy of preventing the harm?