Mixed Torts

Question 1

What is the firefighter’s rule?

Answer 1

Public safety officers are prohibited from tort recovery for personal injuries suffered while in the line of duty.

Question 2

When are employers responsible for intentional torts of employees?

Answer 2

Only when the intentional tort is foreseeable in the scope of their work.

Question 3

Who has standing to file a private nuisance claim?

Answer 3

The person who occupies the property. If rented, then the renter has standing and not the owner.

Question 4

How is the doctrine of continuing trespass applied?

Answer 4

When a person takes property without intent to permanently deprive the true owner and later establishes intent to permanently deprive, then their original taking becomes a larceny.

Question 5

A person who is a professional or has special skill is held to what standard?

Answer 5

The standard is their professional standard. They must possess and exercise the knowledge and skill of a member of the profession or occupation in good standing in similar communities.

Question 6

When is a principal liable for the torts of an independent contractor?

Answer 6

The independent contractor takes part in:

1. Abnormally dangerous activities (blasting with dynamite)
2. Non-delegable duties (performance of medical services)

Question 7

When does negligence per se occur?

Answer 7

When a statute imposes a duty of care and the breach of the statute creates a rebuttable presumption of negligence.

For the presumption to be triggered:

1. The plaintiff must be a member of the class of persons the statute was designed to protect

And

2.The plaintiff’s harm must be of the type the statute was designed to prevent.

Question 8

What is the scope of objects that a battery can occur to?

Answer 8

Anything connected to the person.

Example:

Hitting a man’s cane while it is in use is a battery to the man.

Hitting a dog on a leash held by the owner is a battery to the owner.

Question 9

If a plaintiff fails to mitigate their damages, what are they entitled to?

Answer 9

Whatever damages they would have incurred had they properly mitigated their damages.

Question 10

When will strict liability apply to lateral support removed from improved land?

Answer 10

Only when the land would have collapsed in its natural state. If the improvements caused the land to collapse, then a plaintiff must prove negligence.

Question 11

What is physician’s duty to disclose for informed consent?

Answer 11

Must disclose all risks that are material to the patient’s decision to undergo a specific treatment.

Question 12

In what fact pattern does transferred intent occur?

Answer 12

Defendant meant to hit person X but missed and hit person Y.

Question 13

When is a product defectively designed for strict liability?

Answer 13

1. When the magnitude of the danger outweighs the utility of product

Or

2. When feasible alternative designs are available with less harmful consequences.

Question 14

What does strict Liability for an ultra-hazardous activity require?

Answer 14

1. The ultra-hazardous activity causes a foreseeable injury

And

2. A foreseeable victim that was inside zone of danger of the activity.

Question 15

What are the elements of defamation?

Answer 15

1. A statement of fact (not opinion) that
2. Defendant publishes to a 3rd party who reasonably understands the facts as true.

Question 16

What are the different standards of proof for defamation claims?

Answer 16

1. Public official/Public figure: Malice
2. Private person & matter of public concern: negligence
3. Private person & matter of only private concern: publication only

Question 17

What damages are available for defamation?

Answer 17

General damages are presumed. Special damages must be shown; unless, the defamation is libel or slander per se.

Question 18

Are purely economic losses recoverable in negligence actions?

Answer 18

No, purely economic losses are not recoverable.

Question 19

Differentiate the effect on recovery for express assumption of the risk from implied assumption of the risk.

Answer 19

Express: complete bar to recovery

Implied: not a complete bar to recovery

Question 20

When is there an express assumption of a risk?

Answer 20

Plaintiff relieves defendant of a legal duty either by:

1. Contract

Or

2. Overt language agreeing to waive liability and not sue

Question 21

When is the assumption of a risk implied?

Answer 21

Plaintiff voluntarily agrees to encounter a known risk

Question 22

What are the elements of misrepresentation?

Answer 22

1. A false representation of a past or present material fact
2. Scienter
3. Plaintiff actually and justifiably relies on the representation
4. Plaintiff has damages

Question 23

When can a misrepresentation claim be brought due to the non-disclosure of information?

Answer 23

When a fiduciary duty exists between the parties.

Question 24

What is the effect of res ipsa loquitur?

Answer 24

It gives an inference of negligence

Question 25

What must a defendant **control** for **res ipsa loquitur** to apply?

Answer 25

A defendant must have control over the instrumentality. The defendant must have the right to control the instrumentality and actual control over the instrumentality.

Question 26

Will establishing **res ipsa loquitur** support a **judgment** for **damages**?

Answer 26

No, the jury must still determine that the defendant was actually negligent.