Torts

Question 1

Intention Torts and Incapacity

Answer 1

Rule: Intentional torts do not recognize incapacity as a defense

Question 2

Reasonable Plaintiffs

Answer 2

Rule: Extreme sensitivity of P is disregarded

**Assume P is a reasonable person

Question 3

Doctrine of Transferred Intent

Answer 3

Rule: If at the beginning of the scenario, a D attempt to commit a tort to one party, but either (1) another is harmed, or (2) the party is harmed in another way, D will still be held liable

Question 4

Intent Definition

Answer 4

Rule: Acting with the desire to produce the legally forbidden consequence

Question 5

7 Intentional Torts on the Exam

Answer 5

(1) Battery
(2) Assault
(3) False Imprisonment
(4) Intentional Infliction of Emotional Distress
(5) Trespass to Land
(6) Trespass to Chattels
(7) Conversion

Question 6

Battery - Elements

Answer 6

(i) D intentionally causes a harmful or offensive contact (iii) with Ps person

Note: Does not have to take place instantaneously

Question 7

Assault - Elements

Answer 7

(i) D intentionally causes a reasonable apprehension (ii) of an immediate result

Notes:

• Must have knowledge/ be aware (ex. cannot be sleep)
• No requirement to be afraid
• “Talk is cheap”, words alone does not lead to assault

Question 8

False Imprisonment - Elements

Answer 8

(i) D intentionally commits an act of restraint that (ii) confines P in a bounded area (and P is aware)

Notes:

• Threat is sufficient to cause a restraint
• Omission - if there is a preexisting duty between parties, failing to act and remove a restraint may cause a false imprisonment

Question 9

False Imprisonment - Bounded Area

Answer 9

Rules: (1) bounded area need not be specified
(2) not bounded if there is a reasonable method of escape

Note: Reasonable does not include anything unsafe, humiliating, or hidden

Question 10

Intentional Infliction of Emotional Distress - Elements

Answer 10

(i) D intentionally desires to engage in extreme and outrageous offensive conduct that (ii) causes P to suffer extreme distress

Notes:

• Conduct is outrageous when it exceeds all bounds of decency tolerated in a civilized society
• Mere insults are not outrageous conduct
• If D has prior knowledge of particular sensitivity of P and targets it is outrageous

Question 11

Intentional Infliction of Emotional Distress - 3 Hallmarks of Outrageous Conduct (Most highly tested)

Answer 11

(1) Conduct that is repetitive in nature
(2) If D is a common carrier or innkeeper
(3) P is a member of a fragile class of persons
- young children
- elderly people
- pregnant women

Question 12

Trespass to Land - Elements

Answer 12

(i) D intentionally commits an act of physical invasion (ii) of land

Notes:

• Physical invasion = physically go onto property, even if UNAWARE of crossing boundary
• does not need to harm
• objects count as well
• Land = air above and soil below out to a reasonable distance

Question 13

Trespass to Chattels - Elements

Answer 13

(i) D intentionally interferes with personal property by harming

Question 14

Conversion - Elements

Answer 14

(i) D intentionally interferes with personal property by (ii) depriving of possession

Question 15

Affirmative Defenses

Answer 15

(1) Consent
(2) Protective Privileges -
(i) Self Defense, (ii) Defense of Others, (iii) Defense of Property
(3) Necessity -
(i) Public, (ii) Private

Question 16

Consent

Answer 16

Rule: Consent is an affirmative response, express or implied, to a particular behavior

Two Types:

(1) Express Consent
(2) Implied Consent

Notes:

• Person must have capacity
• Exceptions: Fraud or duress negates or eliminates consent

Question 17

Two Types of Consent

Answer 17

Rule: Consent may be either express or implied.

(1) Express Consent - explicit words, written or oral, that gives individual allowance to act in a particular way

(2) Implied Consent - (i) voluntarily engages in customary behavior; OR
(ii) D’s reasonable interpretation of P’s objective conduct and the surrounding circumstances (body language)

Note: For implied, D is the decider of “reasonable”

Question 18

Scope of Consent

Answer 18

Rule: Consent only extends to a particular categort

Question 19

Protective Privileges (3)

Answer 19

(1) Self Defense
(2) Defense of Others
(3) Defense of Property

Question 20

Self Defense - Elements

Answer 20

Time - Rule: Party must engage in the heat of the moment or almost instantaneously (a reasonable amount of time). Cannot be preemptive (too soon) or revenge (too late)

Accuracy - Rule: Party must have a reasonable belief that the threat is genuine

Scope/ Rule of Proportionality - Rule: Actions must be in proportional force to initial actions

Note:
Retreating - Majority Rule: No requirement to Retreat
Deadly Force - Majority Rule: Deadly force may not be used to protect property (also cannot use deadly mechanical devices)

Question 21

Necessity Doctrines

Answer 21

Public Necessity - Rule: D commits a property tort during an emergency situation that protects the community as a whole

Private Necessity - Rule: D commits a property tort during an emergency situation that protects self interest, that grants a privilege to enter and a privilege to remain

Notes:

• Only applies when the underlying claim is a property tort
• Public = Absolute defense, no liability
• Private = Qualifying defense, ONLY compensatory damages owed (no liability for nominal or punitive damages)

Question 22

Negligence - Elements

Answer 22

Rule: The elements of negligence are (1) duty (law), (2) breach (facts), (3) causation (factual and proximate - logic and policy) (4) damages (facts +slight law)

Question 23

Negligence: Part I - Duty

Answer 23

Rule: Duty of care is a legally imposed obligation to take risk reducing precautions for the benefit of others

To Whom Do You Owe a Duty: to foreseeable victims

Zone of Danger: If you are outside the zone of danger, you are not a foreseeable victim, thus you are not owed a duty

Exception:
Rescuers are owed a duty of care, because danger invites rescue (Cordoza)

Standard: Reasonably Prudent Person

Question 24

Negligence - Duty: Standard of Care

Answer 24

Rule: For duty, courts look to the reasonably prudent person standard of care. This is an objective standard, generally independent of the attributes of particular people

Exceptions:
- Specialized Knowledge or Skill: Courts will take into consideration RPP plus additional skill or knowledge where relevant

• Physical Attributes: Courts will take into consideration physical attributes, where relevant (i.e. blind, one leg, etc.)

Question 25

Negligence - Duty: Special Standard of Care (Children)

Answer 25

Rule: There are specialized standards of care for children, that are subjective

(i) children under the age of 5 owe no duty of care, i.e. cannot be liable for negligence
(ii) For children between 5 - 18 years of age, the SOC is that of a child of same (i) age, (ii) experience, and (iii) intelligence, acting under similar circumstances

Exception: If child is engaged in an adult activity, then the RPP standard is used (ex. motorized vehicles - boat, tractor, jet ski, etc)

Question 26

Negligence - Duty: Special Standard of Care (Professionals)

Answer 26

Rule: The standard of care for professionals is to exercise the same care as an average member of their same profession, providing similar professional services

Note: Empirical Standard

• This is when cases end up in malpractice suits
• Expert witnesses almost always needed
• **on exam do not use “reasonable doctor”

Question 27

Use of Force - Recapture of Chattel

Answer 27

Rule: An owner may use reasonable force to recapture a chattel when in “hot pursuit” of the tortfeasor. The defense of recapture of chattels is limited by the circumstances of the original dispossession. When another’s possession of the owner’s chattel began lawfully, the owner may use only peaceful means to recover the chattel

A demand for return of the chattel must be made before force is used, unless the demand would be futile or dangerous.

However, force can be used only against the tortfeasor or a third party who knows that the chattel was tortiously obtained. If an innocent third party has obtained the chattel, the owner is no longer privileged to use force to effect a recapture of the chattel.

Question 28

False Imprisonment - “Shopkeeper’s Privilege”

Answer 28

Rule: In addition to having a reasonable belief as to the fact of theft, a shopkeeper is required to conduct the detention in a reasonable manner and detain the suspect for a reasonable period of time for the privilege to apply

By statute in some states and case law in others, shopkeepers have been given a privilege to detain someone suspected of shoplifting and thus avoid liability for false imprisonment. The following conditions must be satisfied: 1. There must be a reasonable belief as to the fact of theft; 2. The detention must be conducted in a reasonable manner and only non-deadly force can be used; and 3. The detention must be only for a reasonable period of time and only for the purpose of making an investigation

Question 29

Use of Force - Real Property

Answer 29

Rule: A landowner may not use force to regain real property after being tortiously dispossessed. Most states today do not allow resort to “self-help”; one who has been wrongfully excluded from possession of real property may bring an ejectment action or other summary procedure to recover possession

Note: One may not use indirect deadly force such as a trap, spring gun, or vicious dog when such force could not lawfully be directly used, e.g., against a mere trespasser

Question 30

Negligence - Duty: Special Standard of Care (Possessors of Property): Premises Liability

Answer 30

Land = Property

Rule: For possessors of property, there is no single standard of care, SOC depends upon type of entrant

Question 31

Negligence - Duty: Special Standard of Care, Premises Liability - Unknown Trespasser

Answer 31

Rule of Duty: There is no duty, zero duty rule (not obligated to take any steps to protect from harm)

Why: Unforeseeable victim

Question 32

Negligence - Duty: Special Standard of Care, Premises Liability - Known or Anticipated Transfer

Answer 32

Who: Someone you should expect to trespass, or you know to trespass

Rule of Duty: The possessor must protect those from hazards that are:

(i) artificial conditions on the land
(ii) highly dangerous conditions
(iii) concealed from the trespasser at the time of suit (thus, no liability for open or obvious); AND
(iv) known by the D

Short-phrase Rule: In the case of a trespasser, P only has duty to protect from known, man made death traps on the land

Question 33

Negligence - Duty: Special Standard of Care, Premises Liability - Licensee

Answer 33

Rule: Entitled to protection from any condition that is (i) concealed from the licensee but (ii) known to the D

Who: Only those who come on to the property with permission, express or implied (but do not add any financial value to you)
- Most common types of licensee: social guests, or someone there for an agenda of their own

Short-Phrase: Must protect from all known traps on the property

Question 34

Negligence - Duty: Special Standard of Care, Premises Liability - Invitee

Answer 34

Rule of Duty: Entitled to protection from any condition that is (i) concealed from the invitee and that D (ii) knew in advance or could have been discovered through a reasonable inspection

Note: Inspected at a reasonable amount of time (via custom, location, etc.)

Who: Enter with permission, express or implied, but there for a purpose which confers economic or financial benefit on the property possessor, or open to the public at large
- Most common: customer of a business

Short-Phrase: For invitees, must protect from all reasonably knowable traps on the land

Question 35

How to Satisfy Premises Liability Duties

Answer 35

Rule: Two Ways to Satisfy Duty of care in premises liability:

(i) Eliminate the hazardous condition: Repair, replace, or remove
(ii) Give a warning, must be sufficiently complete in communicating the danger to parties (can be oral or written)

Question 36

Premises Liability: Special Kinds of Entrants

Answer 36

Two Kinds -
(i) Firefighters and Police Officers (ii)

Firefighters Rule: If injured by risks inherent to their job, there is no SOC and they receive no recovery (relevant to police as well)

Children’s Rule: Property possessor owes a child trespasser duty of ordinary care (RPP)
Common Law - Attractive Nuisance: More generous SOC for intriguing circumstances for children i.e. swing sets, trampolines, etc.

Question 37

Statutory Standards of Care (Negligence Per Se)

Answer 37

Rule: In order to show a prima facie breach of SOC, P must (i) Borrow a Statute and (ii) prove that the statue had been violated.

(i) Borrow a Statute: Must show P is a member of the class of persons the statute was attempting to protect, and the accident that occurred was the type of harm in which the statue was attempting to prevent

Note: No penalty for trying and failing, thus goes under the RPP standard

Question 38

Exceptions to Duty Rules (Negligence Per Se)

Answer 38

Exception 1: If compliance under the statute would be more dangerous than violation, under the circumstances, then the statute will not be used

Exception 2: If statutory compliance would have been impossible under the circumstances

Question 39

Special Duty Standards (Duty to Act i.e. No Duty to Rescue)

Answer 39

General Rule: There is no duty to act affirmatively, i.e. no requirement to be a Good Samaritan

Exceptions:

(1) Preexisting relationships will trigger a duty, traditional rule requires a “formal relationship” such as:
- employer/ employee
- common carrier/ delivery
- inn keeper/ guest
- family member/ family member

(2) If the D is the cause of the peril

Here: the duty is not a duty to rescue, but a duty to act reasonably under the circumstances
Note: Duty does not arise if you have to put your own life in danger

Question 40

Good Samaritan Laws

Answer 40

Rule: A person who voluntarily rescues and makes an error will not be liable for that error

Reversal of traditional rule

Question 41

Negligent Infliction of Emotion Distress

Answer 41

Rule: Three Types

(1) Near Miss Case: Negligent D ALMOST injured P - Must show D didn’t act as RPP, D’s negligence put you in a zone of danger, and as a result of the distress there is a subsequent physical manifestation of the distress
(2) Bystander Case: Negligent D actually causes severe bodily injury or death to a party not involved in the present incident - P must show that he and X were close family members (spouse, parent and child) and that P seen it contemporaneously (as it happens)
(3) Business Relationship: P and D in pre-existing business relationship, and it is highly foreseeable that careless performance by D will produce emotional distress

Question 42

Breach

Answer 42

Rule: Breach is a concrete, specific behavior that failed to meet the standard of care, can be either an act or an omission

**on exam, identify the wrongful conduct and explain why it was wrongful

Question 43

Res Ipsa Loquitor

Answer 43

Rule: Res ipsa loquitor is a doctrine that allows a court can infer negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved (circumstantial evidence)

Must show (i) the accident is one ordinarily associated with negligence and (ii) the accident which occurred would normally be due to someone in this D’s position

Translation: the think speaks for itself

Question 44

Factual Cause (But For)

Answer 44

Rule: But For Test, where P establishes a factual connection between the breach and the harm

i.e. But for the breach, P would not have been injured

Question 45

Merged Causes (Substantial Factor Test)

Answer 45

Rule: Substantial Factor Test - D is liable if his breach substantially contributed to the ultimate injury suffered by the P, left to jury, and held jointly and severally liable (can recover from both Ps)

Additional: Occurs if both negligent acts could have caused P’s harm on their own

What: Two D acting independently negligent creates a harm and force operates separately but eventually merges to create a single merged harm

Question 46

Unascertainable Cause

Answer 46

Rule: BOP is shifted to Ds to prove that they were not the cause of the harm. If they cannot, jointly and severally liable

What: When there is no way to ascertain the cause/ source of the harm, BOP shifts to D

Question 47

Proximate Cause - Generally (Fairness)

Answer 47

Rule: Proximate cause refers to the foreseeable consequences of that breach, then liability is “fair “

Proximate Cause Scenarios: “

Question 48

Proximate Cause Scenarios: “Intervening Acts”

Answer 48

• Intervening Negligent Medical Treatment

Question 49

Intervening Acts - Intervening Negligent Medical Treatment

Answer 49

Rule: D will be liable for intervening negligent medical treatment, and remains a proximate cause. Although the doctor remains liability, there is still joint liability

Question 50

Intervening Acts - Intervening Negligent Rescue

Answer 50

Rule: D be liable for the acts of a negligent rescue, remains a proximate cause

Question 51

Intervening Acts - Intervening Protection or Reaction Forces

Answer 51

Rule: D will be liable for intervening protection or reaction forces, remains a proximate cause

Question 52

Intervening Acts - Subsequent Disease or Accident

Answer 52

Rule: D will be liable for subsequent disease or accident, remains a proximate cause

Question 53

Damages - The Eggshell Plaintiff Doctrine

Answer 53

Rule: Under the Eggshell Plaintiff Doctrine, a plaintiff will recover for all damages suffered, even if damage is surprisingly great in scope due to their own particularized set of circumstances

i.e. you take your plaintiff as you find your plaintiff

Question 54

Negligence - Affirmative Defense: Comparative Negligence

Answer 54

Rule: Under the view of comparative negligence, D provides evidence that establishes that P failed to exercise proper care for his or her own safety

P’s recovery will be reduced based on the P’s percentage of fault. Jury decides percentage amount

Question 55

Strict Liability - Injuries Caused by Domesticated Animals

Answer 55

General Rule: No strict liability for domesticated animals

Domesticated Animals: House pets and farm animals

Exception: If D has knowledge that animal has dangerous or vicious propensities, will be held to strict liability

Question 56

Strict Liability - Injuries Caused by Wild Animals Animals

Answer 56

General Rule: If D is in possession of wild animals, D will be held liable for all harm caused by the animal, no matter what precautions were taken

Question 57

Strict Liability - Abnormally Dangerous Activity

Answer 57

Rule: D will be held strictly liable for abnormally dangerous activities

Ex. explosives, handling or transport of dangerous/ toxic chemicals, nuclear materials

Abnormally Dangerous Activities Standard =
(1) Type of activity which cannot be made reasonably safe even through the exercise of ordinary care
(significant amount of risk)

(2) Activity is uncommon in the area where it is conducted

Question 58

Strict Liability - Products Liability (Defective Products)

Answer 58

Rule: D will be held strictly liable under claims of defective products, as long as it meets the elements below:

(1) D must be a merchant (one who deals in goods of the kind sold)
Exceptions: casual sellers, commercial lessors (rental cars), products provided with services, everyone in distribution chain is subject to strict liability
Note: Privity of contract is not required

(2) Product must be Defective:
(i) manufacturing defect - when differs from all others that came off same line, in a way that makes it more dangerous than consumers would expect
(ii) Design defect - when the risks associated with the product design outweigh the utility of the design choice (I) hypothetical safer alternative design (II) that is practical and (III) it is cost effective/ economically feasible
(iii) hidden risks that are not apparent to users, unless it has adequate and sufficient warnings to protect from harms
Adequacy = (I) prominent, (II) comprehensible, (III) and provides information about mitigating the risk

(3) Product must not have been Altered - note if product moved it into the ordinary channels, it is presumed that it has not been altered
(4) P was making a foreseeable use of the product at the time of use (Note: note the same as intended or appropriate use)

Question 59

Strict Liability - Affirmative Defenses

Answer 59

Traditional Rule: If a P knowingly encountered a dangerous situation that would normally lead to strict liability, then P would be barred from recovery

Question 60

Nuisance

Answer 60

Rule: To prevail in a nuisance claim, a P must show that D’s activities have unreasonably interfered with P’s ability to use and enjoy property to a substantial or significant degree

Courts often use “intolerable”

Involves an interference with the ability to use and enjoy property

Note: Intent is awareness of engaging in activity

Note: Continuous behavior is also useful to prevail

Question 61

Damages - Vicarious Liability

Answer 61

Rule: Vicarious liability s a form of a strict, secondary liability that arises under the common law doctrine of agency, respondeat superior, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the “right, ability or duty to control”

Note: Always based on relationships
(i) Employer/ Employee - respondeat superior, Employer will be held liable if acting within the scope of employment - not frolic and detour i.e. major departure from the work, outside scope of employment (intentional torts generally outside scope, unless acting to further employers interest, or authorization of physical force)

(ii) Independent Contractors: Rule: Hiring companies are not liable for the torts of IC
- but remains liable if business owner has IC come on the property and the IC negligently harms customers on property

Question 62

Damages - Multiple Defendant Issues

Answer 62

General Rule: All D’s jointly and severally liable (note, 30 of 50 states have abolished this, BUT on exam)

Modern Rule: Each D gets assigned a percentage of fault by the jury, and they have to compensate P for their percentages owed

Indemnification: to be fully reimbursed for damages paid, “hold harmless”
ex. Strict liability, non - manufacturers are generally indemnified

Question 63

Damages - Loss of Consortium

Answer 63

Rule: If spouse is injured, spouse can receive a separate cause of action, designed to compensate for

(i) loss of household services
(ii) loss of society (companionship)
(iii) loss of sex

Question 64

Defamation - Elements

Answer 64

Rule: Defamation - involves an allegation of fact that affects adversely on some trait or character (reputation)

Elements
1. (i) P must show defamatory statement (ii) that specifically identifies the P (does not have to use name)

Defamatory Statement = statement that tends to adversely affects reputation

• Note: Statement of opinions are not generally defamation statements (Exception: unless it applies fact)
• or mere statements of insults do not meet muster
• P must be alive

2. the statement must be published (i.e. others must be aware)
   - does not have to be intentional, negligence can suffice
   - everyone who repeats is susceptible to liability as a republisher
3. Damages - libel and slander

Question 65

Libel

Answer 65

Rule: Libel is any defamation in permanent form (all need is statement and publication)

Question 66

Slander (Slander Per Se and Non-Slander Per Se)

Answer 66

Rule: Slander is spoken or oral defamation

Slander per se - Damages are presumed

1. Any statement relating to business/ profession (same damages as label)
2. Any statement that P has committed a serious crime (involving honesty or violence)
3. Statement that imputes on chastity of a woman
4. Plaintiff suffers from loathsome disease (only applies to leprosy and venereal disease)

Slander/ Non-Slander Per Se: In cases of general slander/ non-slander per se, P must offer evidence of damages/ economic harm

Question 67

Defamation - Affirmative Defenses: Consent and Proof

Answer 67

Rule: If any of these affirmative defenses apply, a D will not be liable for defamation

• Consent: There will be no liability if
• Proof of Truth: There will not be any liability if proof of truth can be shown
• Privileges: (i) Spousal, and (ii) Officers of the three branches of government within their scope of work (iii) Qualified Privilege - when there is a public interest in encouraging candor (i.e. protect from getting sued0, but (1) persona invoking must have a good faith, reasonable basis and (2) must confine self to matters that are relevant at hand

Question 68

Defamation - Matters of Public Concern

Answer 68

Rule: If a statement is a matter of public concern, if P is a Public Figure, must also prove (1) falsity of the statement and (2) some degree of fault (i.e. made in bad faith, malice - knowing its false of reckless disregard of falsity) or

If the P is a private figure, P must also prove that (i) the statement was made negligently for a D to be liable for defamation

Matter of Public Concern = Newsworthy, widespread public interest, that there is likely to be public discourse (i.e. public officials, celebrities, athletes, etc.)

Question 69

Invasion of Privacy Types

Answer 69

Rule: Invasion of privacy occurs when a P’s reasonable expectation of privacy into his/ her private affairs

(1) Appropriation
(2) Intrusion
(3) False Light
(4) Disclosure

Question 70

Invasion of Privacy Types - Appropriation

Answer 70

Rule: Appropriation occurs when D uses P’s name or image for a commercial purpose

Note: Applies to everyone, not just famous, or public officials

Exception:
(1) Newsworthy

Question 71

Invasion of Privacy Types - Intrusion

Answer 71

Rule: Intrusion occurs when there is an invasion of a Ps seclusion in a way that is highly offensive to a reasonable person, must be in a place with a reasonable expectation of privacy

Question 72

Invasion of Privacy Types - False Light

Answer 72

Rule: False light is a type of of invasion of privacy where there is a widespread dissemination of a material falsehood about P that would be highly offensive to a reasonable person

Note: Still actionable, even if accidental/ not purposeful

Defenses: Absolute and Qualified Privileges

Question 73

Invasion of Privacy Types -Disclosure

Answer 73

Rule: Disclosure is a type of of invasion of privacy where there is widespread dissemination of confidential information about P that would be offensive to a reasonable person

Note:
Exceptions:
(1) Newsworthy
(2) Must be truly confidential

Defenses: Absolute and Qualified Privileges

Question 74

Invasion of Privacy - Damages

Answer 74

Rule: Damages hinge upon emotional damages

Question 75

Invasion of Privacy - Defenses

Answer 75

Rule: The defenses to the tort of invasion of privacy are

(1) Consent

(2) Privileges
(i) Qualified, and
(ii) Absolute

Question 76

Intervening Forces - Criminal Acts of Third Persons

Answer 76

Rule: While criminal acts of third persons are intervening forces that operate on the situation created by the defendant’s negligence, they are independent actions rather than natural responses or reactions to the situation.

This type of intervening force may be foreseeable, but only when the plaintiff can show that the defendant’s negligence increased the risk that the force would cause harm to the plaintiff.