Torts

Question 1

Duty

Answer 1

owe a duty of care to foreseeable Ps within your zone of danger

Question 2

Professional standard of care

Answer 2

Duty to act like an average professional with the same training and background within the community

Question 3

Child standard of care

Answer 3

Duty to act like other children of same age and maturity
UNLESS they are engaged in adult activities then they are held to the reasonable person standard

Question 4

Parent standard of care

Answer 4

Duty to prevent their child from committing harm when the parent knows or should know their child is likely to cause harm

Question 5

duty to aid

Answer 5

generally, there is no duty to aid but if/once you begin to render aid you must do so reasonably
EXCEPTION- special relationships, you always have a duty to rescue

Question 6

possessor of land:
standard of care to an unknown trespasser

Answer 6

no duty owed

Question 7

possessor of land:
standard of care owed to an known trespasser

Answer 7

duty to warn of highly dangerous, artificial, concealed dangers known to possessor

Question 8

possessor of land:
standard of care owed to a licensee

Answer 8

duty to warn of known non-obvious dangers

Question 9

possessor of land:
duty owed to an invitee

Answer 9

duty to warn of concealed dangers that are known to possessor or could have been known by means of reasonable inspection

Question 10

factual cause

Answer 10

but for the defendant’s negligence, the injury would not have occurred

Question 11

proximate cause

Answer 11

limited to foreseeable harms – if the harm was foreseeable, it was a proximate cause

Question 12

intervening cause

Answer 12

foreseeable acts that do not cut off liability

Question 13

superseding cause

Answer 13

unforeseeable acts that cut off liability
- Acts of God
- intentional torts
- crimes

Question 14

to have negligence damages you need to have…

Answer 14

ACTUAL PHYSICAL INJURY, economic harm is not necessary for common law negligence

Question 15

contributory negligence

Answer 15

if P is even 1% liable, they are completely barred from recovery

Question 16

contributory negligence exception

Answer 16

last clear chance rule! if D had the last clear chance to prevent the accident but didn’t, then P may recover all their damages

Question 17

pure comparative negligence

Answer 17

MBE DEFAULT UNLESS STATED OTHERWISE Ps recovery is reduced by their % of fault

Question 18

modified/modern comparative negligence

Answer 18

Ps recovery is reduced by their % of fault but if they are over 50% at fault, they recover nothing

Question 19

assumption of the risk

Answer 19

p understands and appreciate the nature of the risk but does it anyway–complete bar to recovery

Question 20

joint and several liability

Answer 20

when two or more people caused an accident but the % of liability of each is unknown, P may recover from one single D

Question 21

contribution

Answer 21

the paying co-D in a joint and several liability case may sue their co-D for the damages they are not responsible for

Question 22

vicarious liability

Answer 22

employers are strictly liable for the negligent acts of their employees committed within the scope of their employment

Question 23

employer liability for independent contractors

Answer 23

employers are not liable for the negligent acts of an independent contractor unless:
- the work being done is abnormally dangerous; OR
- it is a non-delegable duty

Question 24

negligence per se

Answer 24

a violation of a statute where P is part of the protected class the statute is designed to protect and the injury is the kind the statute is designed to prevent

Question 25

res ipsa

Answer 25

acts that would not occur absent negligence, where D was in exclusive control of the property, and allows the jury to conclude an inference of negligence

Question 26

if you see motion for directed verdict or summary judgment answer choice is about

Answer 26

res ipsa

Question 27

strict liability arises in what scenarios:

Answer 27

1) wild animals 2) abnormally dangerous activities

Question 28

defense to either form of strict liability

Answer 28

assumption of the risk

Question 29

strict products liability elements

Answer 29

1) D is a merchant 2) the product is defective when it leaves the factory; 3) the product has not been substantially altered since leaving Ds control 4) P was making a foreseeable use of the product (foreseeable does not mean intended use)

Question 30

strict products liability defects include:

Answer 30

- manufacturing defect - design defect - failure to warn or inadequate warning

Question 31

three theories of products liability to sue under

Answer 31

1) strict products liability 2) negligence 3) warranty

Question 32

Products Liability Implied Warranty of merchantability and fitness for particular purpose

Answer 32

warranty of merchantability: goods are average, acceptable goods, and are fit for their ordinary purpose warranty of fitness: seller knows/has reason to know buyer wants the goods for a particular purpose and buyer is relying on seller's skill/judgment

Question 33

Private nuisance

Answer 33

the unreasonable interference with the use and enjoyment of another's land

Question 34

Public nuisance

Answer 34

Acts which affect an entire community at large and lawsuit is brought by a public official

Question 35

If a public nuisance suit is brought by a private Plaintiff, what must the Plaintiff prove?

Answer 35

Special or Unique damages

Question 36

what are the intentional torts? (just name them)

Answer 36

FITT CAB F- false imprisonment I- intentional infliction of emotional distress T- trespass to land T- trespass to chattels C- conversion A- assault B- battery

Question 37

false imprisonment

Answer 37

act or omission by D that confines or restraints P to a bounded area - P MUST KNOW they are confined - P must not know of any reasonable means to escape - amount of time doesn't matter

Question 38

intentional infliction of emotional distress

Answer 38

extreme and outrageous conduct by D and P suffers severe emotional distress - conduct that exceeds all bounds of decency - P needs to show ACTUAL damages (proof of physical injury not required)

Question 39

bystander IIED claims

Answer 39

D is liable for IIED if: - their conduct was directed at a member of Ps family - P was present at the scene - D knew P was there NOTE: P does not need to be present to hold D liable if they can establish that Ds actions against their family members were part of Ds purpose to cause P severe distress

Question 40

damages available for IIED

Answer 40

compensatory and punitive P must have experienced actual, non-nominal damages to recover

Question 41

trespass to land

Answer 41

physical invasion of Ps real property (real, tangible property) - does not matter if you did not intent to trespass, all that matters is you had the intent to be on that land

Question 42

trespass to chattels

Answer 42

Ds act interferes with Ps right of possession in a chattel - does not matter if you did not intend to take someone else's property, all that matters is that you intended to do the act of taking that property

Question 43

conversion

Answer 43

Ds act interferes with Ps right of possession in a chattel and the interference is so serious, D should pay chattel's full value - does not matter if you did not intend to take someone's property, all that matters is you had the intent to do the act of taking that property (even if you thought it was yours)

Question 44

difference between trespass to chattels and conversion

Answer 44

trespass to chattels is a small interference conversion is a big, substantial interference with Ps right of possession

Question 45

assault

Answer 45

Ds act creates a reasonable apprehension in P of an immediate battery - P needs to know they are about to get hit - words alone are never enough

Question 46

battery

Answer 46

harmful or offensive conduct to the Ps person - offensive = unpermitted by the RP - Ps person = contact with anything connected to P

Question 47

defenses to intentional torts (just list them)

Answer 47

consent self defense defense of others defense of property necessity

Question 48

defense of consent

Answer 48

not everyone has capacity to consent !!

Question 49

self defense and what force is allowed?

Answer 49

person reasonably believes they are about to be attacked force allowed is what is reasonably necessary to protect injury (if you use more that what is reasonably necessary, you lose the defense) reasonable mistake that force is needed is allowed

Question 50

defense of others and what force is allowed?

Answer 50

ok to defend another if you reasonably believe that the other person could have used force themselves force allowed is as much force as would have been reasonably necessary to use in self defense reasonable mistake that force is needed is allowed

Question 51

defense of property

Answer 51

may use reasonable force to prevent a tort against your property MUST FIRST REQUEST TO DESIST OR LEAVE Cannot use deadly force to defend property!!! (unless the invasion entails serious threat of bodily harm)

Question 52

shopkeepers privilege rule

Answer 52

allowed to detain a suspected shoplifter if: - reasonable belief of theft - detention is in a reasonable manner - for a reasonable period of time

Question 53

necessity defense

Answer 53

ONLY APPLIES TO PROPERTY TORTS public necessity - D acted to avert an imminent public disaster (absolute defense) private necessity - D acted to prevent serious harm to a limited number of people (D must pay for any injury they caused unless the act was to benefit the property owner)

Question 54

attractive nuisance doctrine

Answer 54

possessor of land will be liable under this doctrine if it was reasonably foreseeable that children would be drawn into their land by their dangerous, artificial conditions (ex: broken swing set on a front lawn with no fence)

Question 55

negligent infliction of emotion distress -- NEAR MISS CASE

Answer 55

D did not injure P but almost did P must show: 1) P was within the zone of danger; and 2) P suffered physical symptoms from the distress

Question 56

negligent infliction of emotional distress -- BYSTANDER CASE

Answer 56

P saw someone get injured/almost get injured P must show: 1) P and injured party are closely related (family); 2) P was present at the scene and personally saw the event

Question 57

negligent infliction of emotional distress -- SPECIAL RELATIONSHIP B/W PLAINTIFF AND DEFENDANT

Answer 57

D is liable for directly causing Ps emotional distress because a duty arises from the relationship Ex: - patient & medical lab (messing up results and telling P they have cancer when they do not)

Question 58

substantial factor test

Answer 58

meets factual cause where several causes bring about the injury but one alone would have been enough, Ds are jointly and severally liable even if divisible

Question 59

unascertainable cuses

Answer 59

meets factual cause where there are 2 acts but we do not know which caused the injury, Ds may be held jointly and severally liable

Question 60

punitive damages

Answer 60

not available for negligence claims

Question 61

minor departure vs. major departure in vicarious liability

Answer 61

minor departure from employers business = employee will be held to have been acting within the scope of employment major departure (FROLIC) = employee will be held to have been acting outside the scope of employment

Question 62

intentional torts and vicarious liability

Answer 62

employers are not liable for the intentional torts of their employees UNLESS - The employee is furthering the employer's business - force is authorized in employment - friction is generated by employment

Question 63

Employer's own negligence

Answer 63

Employers can be liable for negligently hiring or supervising

Question 64

loss of consortium

Answer 64

either spouse may bring an action for indirect interference with consortium

Question 65

defamation claims

Answer 65

defamatory statement that - specifically identifies the P, - is published to a 3rd party, - is false, - D is at fault, and - damages Ps reputation

Question 66

libel

Answer 66

permanent form of defamation damages are presumed

Question 67

slander

Answer 67

spoken form of defamation P must prove special damages

Question 68

slader per se:

Answer 68

- statements adverse on Ps business or profession - statement that P has committed a serious crime - statement that P has engaged in serious sexual misconduct - statement that P has a loathsome disease

Question 69

defenses to defamation

Answer 69

- consent (complete defense) - truth - absolute privilege (communications between spouses and remarks made during judicial proceedings) - qualified privilege (only applies when there is a public interest in encouraging candor)

Question 70

4 types of wrongs for invasion of right to privacy

Answer 70

1) appropriation of Ps name or picture (w/o permission for a commercial advantage) 2) intrusion on Ps affairs or seclusion (eavesdropping, wiretapping into something PRIVATE that is highly offensive to a RP) 3) false light (circulated to the public at large, values about P that they do not really hold) 4) public disclosure of private facts about P (highly offensive to a RP of ordinary sensibilities)