Torts

Question 1

Battery

Answer 1

1. Harmful or offensive contact by ∆ 2. With the person of the π

Question 2

Assault

Answer 2

1. Placing π in reasonable apprehension 2. Of an immediate battery *Words alone are not enough

Question 3

False Imprisonment

Answer 3

1. An act of restraint by ∆ 2. Confining π to a bounded area 3. Where π knows of the restraint or is harmed by it

Question 4

Intentional Infliction of Emotional Distress (IIED)

Answer 4

1. Extreme and outrageous conduct by ∆ 2. Exceeding the bounds of civil society 3. Causing severe emotional distress *Intentional or reckless

Question 5

Intentional Trespass to Land

Answer 5

1. Physical invasion 2. Onto land of another *Not elemental invasion (that is nuisance)

Question 6

Trespass to Chattels / Conversion

Answer 6

1. Intentional interference 2. With the personal property of another *Trespass: reduction in value or temporary *Conversion: a complete loss of value or permanent

Question 7

Express Consent Defense

Answer 7

AFFIRMATIVE DEFENSE 1. π with legal capacity 2. Oral or written affirmative agreement 3. Reasonable in interpretation 4. ∆ acting within the scope of consent

Question 8

Implied Consent Defense

Answer 8

AFFIRMATIVE DEFENSE 1. π with legal capacity 2. Implied through custom, OR ∆’s understanding of π’s objective behavior and surrounding circumstances 4. Reasonable in interpretation 5. ∆ acting within the scope of consent

Question 9

Self-Defense/Defense of Others

Answer 9

1. ∆ perceived threat from π 2. Was actual or imminent 3. ∆’s belief was reasonable 4. Proportionate *Presumption that car/home intruder intends to act with deadly force

Question 10

Defense of Property

Answer 10

1. ∆ perceived threat from π 2. Was actual or imminent 3. ∆’s belief was reasonable 4. Proportionate *No deadly force or mechanical traps

Question 11

Public Necessity Defense

Answer 11

1. ∆ commits property tort 2. In response to an emergency 3. To protect the public at large *Complete defense

Question 12

Private Necessity Defense

Answer 12

1. ∆ commits property tort 2. In response to an emergency 3. To protect a personal interest *Liable for compensatory damages only

Question 13

Principle of Negligence

Answer 13

When a person engages in conduct that creates a risk of harm, they owe a duty to all foreseeable plaintiffs to perform that risk-creating conduct with the reasonable care of an ordinarily prudent person under the circumstances.

Question 14

Negligence Elements

Answer 14

1. Duty 2. Breach 3. Actual cause 4. Proximate cause 5. Damages

Question 15

Special Duties:

Children and Professionals

Answer 15

Children

• < 5: incapable of negligence
• 5 – 18: based on age, experience, and intelligence
• > 18: reasonably prudent person

*Exception for child engaged in an adult activity, where child is held to adult standard for that activity

Professionals

• Average member of the same profession,
• Performing the same service OR
• Industry custom for a regulated industry

*National standard

Question 16

Premises Liability:

Unknown Trespassers / Felonious Conduct

Answer 16

No duty owed to unknown trespassers or those committing a felony.

Question 17

Premises Liability:

Known/Anticipated Trespasser & Uninvited Licensees

[Traps that will HACK you to pieces]

Answer 17

Persons with permission, persons who have trespassed before, or who might be reasonably be expected as a trespasser

Duty to remedy or disclose all hazards that are

1. Highly dangerous,
2. Artificial,
3. Concealed, and
4. Known to the landowner

Question 18

Premises Liability:

Invitees & Social Guests

Answer 18

Persons with permission providing an economic benefit, open to the general public, or police/firefighters

Duty to remedy or disclose hazards that are:

1. Reasonably discoverable through routine inspection, and
2. Concealed

Question 19

Premises Liability:

Attractive Nuisance Doctrine

Answer 19

Children are owed the duty of a reasonably prudent person under the circumstances

*Must be injured by the thing that lured them onto the land.

Question 20

Negligence Per Se

Answer 20

Establishes duty and proves breach if a ∆ violates a statute designed to protect

1. against the type of harm caused by his conduct
2. to the class of persons of which π is a member.

Exception:

1. If compliance would be more hazardous than the violation, OR
2. If compliance was physically impossible under the circumstances

***Motor vehicle statutes offer some evidence of negligence, but are not dispositive***

Question 21

Affirmative Duty to Rescue

Answer 21

1. Pre-existing legal relationship
2. Where ∆ creates a danger that causes harm
3. Commencement of voluntary rescue

Duty owed is that of a reasonable person under the circumstances (even under FL’s Good Samaritan Law).

Question 22

Negligent Infliction of Emotional Distress

Answer 22

Near Miss - fear/anxiety

1. Negligent ∆
2. π in the zone of danger
3. Some form of minimal physical contact with π
4. π suffered physical manifestation of distress

Bystander - sadness/grief

1. Negligent ∆
2. Death or serious bodily harm to a 3rd party
3. Witnessed by π who is a close family member

*π need not witness contemporaneously

Question 23

Florida Punitive Damages Caps

Answer 23

Punitive damages shall not exceed 3x the compensatory damages award or $500,000 for any single claimant.

Exception: There are no limits for damages resulting from conduct by a ∆ who was under the influence of alcohol or a controlled substance, engaged in activity for unreasonable financial gain, intentionally harming the π, or abuse of children and the elderly.

Question 24

Strict Liability: Animals

Answer 24

1. Animal has viscious propensities, and
2. Owner has knowledge

and

1. All dog bites, unless trespasser or warning sign present
2. Any injury involving a wild animal kept by ∆

Question 25

Strict Liability:

Abnormally Dangerous Activity

Answer 25

1. Significant risk of serious injury, even when performed reasonably, AND
2. Activity is uncomon in the area it is performed

Question 26

Strict Liability:

Manufacturing Defect

Answer 26

1. ∆ is a merchant
2. Product has not be altered
3. Use of the product must have been a foreseeable use
4. Product differs from its intended design

Question 27

Strict Liability:

Design Defect

Answer 27

1. ∆ is a merchant
2. Product is unaltered
3. The use of the product is a foreseeable use
4. Product is more dangerous than consumers would reasonably expect

Question 28

Strict Liability:

Information Defect

Answer 28

1. ∆ is a merchant
2. Product was unaltered
3. Use of the product was a foreseeable use
4. Product has a non-obvious risk, and
5. Product lacks adequate warnings or instructions

*Adequate warnings are reasonably prominent and comprehensible

Question 29

Nuisance

Answer 29

1. Inconsistent or malicious use of ∆’s land causing
2. Unreasonable intereference with the use and enjoyment of π’s land

Question 30

Loss of Consortium

Answer 30

1. Loss of household services
2. Loss of society
3. Loss of sexual gratification

Question 31

Defamation

Answer 31

1. ∆ made a defamatory statement about the π
2. Statement was publicized
3. Damages

Question 32

Defamation Damages

Answer 32

Slander Per Se (damages presumed)

1. Statement relating to business or profession
2. Statement that π committed a serious crime
3. Statement that imputes unchastity to a woman
4. Statement that π suffers from loathsome disease (VD)

Non-Slander Per Se (must prove economic damages)

Question 33

Defamation Affirmative Defenses

Answer 33

1. Consent
2. Truth
3. Privilege
4. Matter of Public Concern

To overcome Public Concern, must show:

1. Public Figures - Knowing falsity or reckless disregard for the truth
2. Private Figrures - Statement was false, and made negligently

Question 34

Privacy Torts

Answer 34

1. Appropriation - ∆ used π’s name for a commercial purpose
2. Invasion of Privacy - ∆ intrudes upon seclusion of π in a way that is highly offensive to a reasonable person
3. Dissemination - Widespread disclosure of confidential information