torts

Question 1

What are the elements of false imprisonment?

Answer 1

1) The defendant intends to confine or restrain the plaintiff within a limited area;

2) The defendant’s conduct causes the plaintiff’s confinement, or the defendant fails to release the plaintiff from a confinement despite owing a duty to do so, and

3) The plaintiff is conscious of the confinement (in a majority of jurisdictions, a plaintiff who was not conscious of the confinement may still recover if harmed by the confinement).

Question 2

What are the elements for intentional interference with a contract?

Answer 2

To establish a prima facie case for intentional interference with a contract, the plaintiff must prove that:

i) A valid contract existed between the plaintiff and a third party;

ii) The defendant knew of the contractual relationship;

iii) The defendant intentionally interfered with the contract, causing a breach; and

iv) The breach caused damages to the plaintiff.

Question 3

When is NIED recovery for plaintiffs outside the zone of danger is allowed?

Answer 3

NIED recovery for plaintiffs outside the zone of danger is allowed if the plaintiff:

i) is closely related to the person injured by the defendant

ii) was present at the scene of the injury; and

iii) personally observed (or otherwise perceived) the injury.

Question 4

What test is generally applied to determine whether a defendant’s conduct was the actual cause of the plaintiff’s harm?

Answer 4

“But for” test: If the plaintiff’s injury would not have occurred but for the defendant’s tortious conduct, then the defendant’s conduct is a factual cause of the harm.

Question 5

When may a private actor make an arrest?

Answer 5

In most jurisdictions, a private actor is privileged to use force (e.g., commit a battery or false imprisonment tort) to make an arrest in the case of a felony if the felony has in fact been committed and the arresting party has reasonable grounds to suspect that the person being arrested committed it.

Question 6

What are the elements of intentional infliction of emotional distress (IIED)?

Answer 6

1) The defendant’s intentional or reckless,

2) Extreme and outrageous conduct,

3) That causes,

4) The plaintiff severe emotional distress.

Question 7

What defenses are available to a defamation action?

Answer 7

1) Truth is a complete defense.
2) Consent is a defense, provided the scope of the consent is not exceeded.
3) Absolute privileges exist for statements made:
- In the course of judicial proceedings by the participants to the proceeding or legislative proceedings by witnesses to the proceedings;
- Between spouses concerning a third person; and
- As required publications by radio, television, or newspaper.
4) Qualified (conditional) privileges exist for statements:
- Made in the interest of the publisher (defendant), such as defending his reputation;
- Made in the interest of the recipient of the statement or a third party; or
- Affecting an important public interest.

Question 8

In negligence actions, what is the general standard of care?

Answer 8

The general standard of care imposed is that of a that of a reasonably prudent person under the circumstances. The standard is an objective one. Under this standard, the defendant is presumed to have average mental abilities and the same knowledge as an average member of the community, but a defendant’s particular physical characteristics (e.g., blindness) are taken into account.

Question 9

In negligence actions, what is the standard of care for those who possess special skills or knowledge?

Answer 9

If a defendant possesses special skills or knowledge, she is held to a higher standard, i.e., she must exercise her superior competence with reasonable attention and care.

Question 10

What is the majority rule for proximate cause?

Answer 10

A defendant is liable for reasonably foreseeable consequences resulting from his conduct. In addition, the type of harm must be foreseeable, although the extent of harm does not need to be foreseeable. A defendant’s liability is limited to those harms that result from the risks that made the defendant’s conduct tortious, within the scope of liability of the defendant’s conduct.

Question 11

When is use of force in defending others justified?

Answer 11

One may defend another with force upon a reasonable belief that the circumstances are such that the third person has a privilege of self-defense against the plaintiff and the defendant’s intervention is immediately necessary for the protection of the third person. The third person need not be related to the defendant but may instead be a stranger.

Question 12

When does an intervening event (an act or event occurring after the defendant’s tortious act and before the plaintiff’s injury) cut off a defendant’s liability?

Answer 12

An intervening event that breaks the chain of proximate causation between the defendant’s tortious act and the plaintiff’s harm is a superseding cause. An unforeseeable intervening event is generally treated as a superseding cause, while a foreseeable intervening event generally is not.

Question 13

When will a defendant’s actions be considered intentional?

Answer 13

The defendant acts intentionally if:

i) The defendant acts with the purpose of causing the consequences of that act; or

ii) The defendant acts knowing that the consequence is substantially certain to result.

Question 14

What are the elements of battery?

Answer 14

1) The defendant intends to cause a contact with the plaintiff
2) His affirmative conduct causes such a contact, and
3) The contact causes bodily harm or is offensive to the plaintiff.

Question 15

What does it mean to be “confined within a limited area” for the purposes of false imprisonment?

Answer 15

The plaintiff must be confined within a limited area in which the plaintiff’s freedom of movement in all directions is constrained. The limited area may be large and need not be stationary. A plaintiff may also be confined when compelled to move in a highly restricted way.

Note: An area is not bounded if there is a reasonable means of safe escape of which the plaintiff is aware.

Question 16

What are two ways in which assault differs from battery?

Answer 16

1) Bodily contact is not required for assault.

2) The plaintiff must be aware of or have knowledge of the defendant’s act or threat for assault.

Question 17

When is the use of deadly force justified in self-defense?

Answer 17

The defendant may use deadly force only if the defendant reasonably believes that:
i) The plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force upon the defendant;
ii) The defendant is thereby put in peril of either death, serious bodily harm, or rape by the use or threat of physical force or restraint; and
iii) The defendant can safely prevent the peril only by the immediate use of deadly force.

Question 18

What is the most important thing a plaintiff must prove to be awarded damages in a negligence action?

Answer 18

The plaintiff must prove actual physical harm (bodily harm, property damage) to be entitled to damages for negligence. Nominal damages are not available.

Question 19

What is the definition of a public nuisance?

Answer 19

A public nuisance is an unreasonable interference with a right common to the general public.

Note: A private citizen has a claim for public nuisance only if that citizen suffers harm that is different in kind from that suffered by members of the general public.

Question 20

When is the owner of a domestic animal strictly liable for harm done by the animal?

Answer 20

A domestic animal’s owner is strictly liable for injuries caused by that animal if he knows or has reason to know of the animal’s dangerous propensities, and the harm results from those dangerous propensities.

Question 21

When may someone use force to defend property?

Answer 21

A person may use reasonable force to defend her property if:
i) The intrusion is not privileged;

ii) The defendant reasonably believes that:
a) The plaintiff is intruding or imminently will intrude on the defendant’s property; and
b) The intrusion can be prevented or terminated only by the means used;

iii) The defendant first asks the plaintiff to desist, and the plaintiff disregards the request or the defendant reasonably believes that a request will be useless or dangerous or that substantial harm will be done before the request can be made;

iv) The means used are reasonably proportionate to the value of the interest the defendant is protecting; and

v) The means used are not intended or likely to cause death or serious bodily injury.

Question 22

Who may be a defendant in a strict products liability action?

Answer 22

The defendant must be in the business of selling or otherwise distributing products of the type that harmed the plaintiff, which includes the manufacturer of the product, its distributor, and its retail seller.

Note: If the seller is a commercial supplier of the product, the seller is subject to strict liability for a defective product, even if the revenue from sales of the product is not a significant portion of its business. The seller is generally strictly liable even if the seller was not responsible for the defect in any way and even when the product is not purchased directly from the seller.

Question 23

What are the elements of defamation?

Answer 23

A plaintiff may bring an action for defamation if:

i) The defendant’s defamatory language;

ii) Is of or concerning the plaintiff;

iii) Is published to a third party who understands its defamatory nature; and

iv) It damages the plaintiff’s reputation.

For matters of public concern, the plaintiff is constitutionally required to prove fault on the part of the defendant. If the plaintiff is either a public official or a public figure, then the plaintiff must prove actual malice.

If either (i) the defamatory statement relates to a matter of public concern or (ii) the plaintiff is a public official or a public figure, then the plaintiff must also prove that the defamatory statement is false.

Question 24

What are two major forms of comparative negligence?

Answer 24

(1) pure comparative negligence
(2) partial (modified) comparative negligence

Question 25

What is pure comparative negligence?

Answer 25

The plaintiff’s full damages are calculated by the trier of fact and then reduced by the proportion that the plaintiff’s fault bears to the total harm.

Question 26

What is partial (modified) comparative negligence?

Answer 26

(i) If the plaintiff is less at fault than the defendant, the plaintiff’s recovery is reduced by his percentage of fault, just as in a pure comparative-fault jurisdiction;

(ii) If the plaintiff is more at fault than the defendant, the plaintiff’s recovery is barred, just as in a contributory-negligence jurisdiction;

(iii) In the vast majority of modified comparative-fault jurisdictions, if the plaintiff and the defendant are found to be equally at fault, the plaintiff recovers 50% of his total damages. In a few modified comparative-fault jurisdictions, the plaintiff recovers nothing when the plaintiff and the defendant are equally at fault.

Question 27

What is the doctrine of “transferred intent?”

Answer 27

Transferred intent exists when a person intends to commit an intentional tort against one person but instead commits the intended tort against a different person.

Question 28

When is an employer vicariously liable for an employee’s torts?

Answer 28

An employer is liable for the tortious conduct of an employee that is within the scope of employment. Conduct within the scope of employment includes acts that the employee is employed to perform or that are intended to profit or benefit the employer. An employer may be liable for an employee’s detour but not an employee’s frolic.

Note: Generally, an employer is not liable for the intentional tort of an employee unless such force is inherent to the job or the employee is authorized to act or speak for the employer and the position provided an opportunity for the tort.

Question 29

Are words sufficient to establish a prima facie case for assault?

Answer 29

For assault, words alone are insufficient. However, words coupled with conduct or other circumstances may be sufficient if the plaintiff reasonably anticipates that a harmful or offensive contact is imminent.

Question 30

What are Cardozo’s views regarding the foreseeability of a plaintiff?

Answer 30

Cardozo (majority) view - a duty of care is owed to the plaintiff only if she is a member of the class of persons who might be foreseeably harmed (sometimes called “foreseeable plaintiffs”) as a result of the defendant’s negligent conduct.

Question 31

What are Andrews’ views regarding the foreseeability of a plaintiff?

Answer 31

Andrews (minority view) - if the defendant can foresee harm to anyone as a result of his negligence, then a duty of care is owed to everyone (foreseeable or not) harmed as a result of his breach.

Question 32

When determining whether contact is offensive for the purposes of battery, what are the objective and subjective tests?

Answer 32

Objective test: contact is offensive when a person of ordinary sensibilities (i.e., a reasonable person) would find the contact offensive.

Subjective test: contact is offensive when the defendant knows that the contact is highly offensive to the plaintiff’s sense of personal dignity, and the defendant contacts the plaintiff with the primary purpose that the contact will be highly offensive (unless liability violates public policy.

Question 33

What is the effect of an exculpatory clause in a contract under which the defendant disclaims liability for negligence?

Answer 33

An exculpatory clause in a contract can constitute an express assumption of the risk by the plaintiff that operates as an affirmative defense to a negligence action.

Note: Many courts now hold that disclaimer of liability by contract negates the fact that the defendant owes a duty of care to the plaintiff in the first place, causing the plaintiff’s prima facie case to fail, rather than operating as an affirmative defense.

Question 34

In what situations will exculpatory clausesnot be enforced?

Answer 34

Courts will not enforce exculpatory provisions:

i) Disclaiming liability for reckless or wanton misconduct or gross negligence;

ii) When there is a gross disparity of bargaining power between the parties;

iii) When the party seeking to apply the exculpatory provision offers services of great importance to the public that are a practical necessity for some members of the public such as medical services;

iv) If the exculpatory clause is subject to typical contractual defenses such as fraud or duress; or

v) When it is against public policy to enforce agreements that insulate people from the consequences of their own negligence.

Question 35

What is the effect of a plaintiff’s negligence on a strict products liability action?

Answer 35

In most comparative-fault jurisdictions, the plaintiff’s own negligence reduces his recovery in a strict-products-liability action in the same manner as in a negligence action. In those jurisdictions, a plaintiff’s conduct that amounts to an “assumption of the risk” is treated as comparative negligence in order to reduce, but not eliminate, recovery.

Note: In some comparative-fault jurisdictions, the plaintiff’s recovery in strict products liability is not reduced by the percentage that the plaintiff’s fault contributed to causing her injury.

Question 36

When is a product defective?

Answer 36

A product is defective when, at the time of the sale or distribution, it contains a:
1) manufacturing defect;
2) design defect; or
3) failure-to-warn defect

Question 37

What is a manufacturing defect?

Answer 37

A deviation from what the manufacturer intended the product to be that causes harm to the plaintiff (the test is whether the product conforms to the defendant’s product specifications)

Question 38

What is a design defect?

Answer 38

A defect in the design of the product as determined under the consumer expectation test (unreasonably dangerous beyond the expectation of an ordinary user) and/or the risk-utility test (a reasonable alternative design that was economically feasible was available to the defendant and the failure to use that design rendered the product not reasonably safe)

Question 39

What is a failure-to-warn defect?

Answer 39

There is a foreseeable risk of harm, not obvious to an ordinary user of the product, which risk could have been reduced or avoided by providing reasonable instructions or warnings, rendering the product not reasonably safe.

Question 40

What is the firefighter’s rule?

Answer 40

An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent in the job.

Question 41

What are two situations in which a plaintiff’s express consent will not constitute a defense to an intentional tort?

Answer 41

1. Mistake - Defendant caused the plaintiff’s mistake or knew of it.
2. Duress - Defendant’s use of physical force or threat of present action.

If consent is obtained through any of the above means, the consent is invalid.

Question 42

When is a person who engages an independent contractor vicariously liable for the independent contractor’s torts?

Answer 42

Those who engage an independent contractor are generally not vicariously liable for the torts of the independent contractor. A person who hires an independent contractor is vicariously liable for certain conduct, including:

i) Abnormally dangerous activities;

ii) Inherently dangerous activities;

iii) Non-delegable duties arising out of a relationship with a specific plaintiff or the public (i.e., activities that are inherently risky or that affect the public at large, such as construction work adjacent to a public highway);

iv) The duty of a storekeeper or other operator of premises open to the public to keep such premises in a reasonably safe condition; and

v) In a minority of jurisdictions, the duty to comply with state safety statutes.

Question 43

What is the traditional rule for contributory negligence?

Answer 43

The plaintiff’s contributory negligence (i.e., failure to exercise reasonable care for her own safety) is a complete bar to recovery, regardless of the percentage that the plaintiff’s own negligence contributed to the harm.

Question 44

What types of damages are permitted for strict products liability claims?

Answer 44

Only personal injury or property damage. A claim for purely economic loss must be brought as a breach-of-warranty action.

Question 45

Generally, when may a defendant act in self-defense and how much force may the defendant use?

Answer 45

A defendant has a privilege to use force against the plaintiff for the purpose of defending himself against the plaintiff’s unprivileged use of force if the defendant reasonably believes that the force is both necessary and proportionate to the force that the plaintiff is intentionally inflicting or about to inflict. The use of force must be for a defensive purpose.

The force used by the defendant should not be significantly greater than the force used by the plaintiff.

Note: A person’s mistaken belief that he is in danger, so long as it is a reasonable mistake, does not invalidate this defense.

Question 46

What is the doctrine of joint and several liability?

Answer 46

Under the doctrine of joint and several liability, each of two or more tortfeasors who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm. The plaintiff has the choice of collecting the entire judgment from one defendant, the entire judgment from another defendant, or portions of the judgment from various defendants, as long as the plaintiff’s entire recovery does not exceed the amount of the judgment.

Note: Always apply joint and several liability on the MBE unless the facts instruct you to apply a different test.

Question 47

What are the elements for intentional misrepresentation (i.e., fraud, deceit)?

Answer 47

The elements for intentional misrepresentation are:

i) The defendant made a misrepresentation of a material fact or failed to disclose a material fact when under an affirmative duty to do so;

ii) The defendant must have known the representation to be false or must have acted with reckless disregard as to its truthfulness (scienter);

iii) The defendant must have intended to induce the plaintiff to act (or refrain from acting) in reliance on the misrepresentation;

iv) The plaintiff must have actually relied on the misrepresentation;

v) The plaintiff’s reliance must have been justifiable; and

vi) The plaintiff must prove actual damages (nominal damages are not awarded).

Question 48

What is a “Good Samaritan” statute?

Answer 48

A “Good Samaritan” statute protects doctors and other medical personnel when they voluntarily render emergency care. These statutes exempt medical professionals from liability for ordinary negligence; however, they do not exempt them from liability for gross negligence.

Question 49

What is a “Good Samaritan” statute?

Answer 49

A “Good Samaritan” statute protects doctors and other medical personnel when they voluntarily render emergency care. These statutes exempt medical professionals from liability for ordinary negligence; however, they do not exempt them from liability for gross negligence.

Question 50

What effect does evidence of custom have on the standard of care in a negligence action?

Answer 50

Evidence of a custom in a community or an industry is admissible as evidence to establish the proper standard of care, but such evidence is not conclusive.

Question 51

To which three torts does the doctrine of transferred intent apply?

Answer 51

1. Battery
2. Assault
3. False imprisonment

Question 52

What is the distinction between libel and slander?

Answer 52

Libel is defamation by words written, printed, or otherwise recorded in permanent form. Slander is defamation by spoken word, gesture, or any form other than libel.

Question 53

What effect does the classification of defamation as to libel or slander have on damages?

Answer 53

Generally, and subject to constitutional restrictions, presumed damages may be awarded for libel, but slander requires proof of special damages unless it constitutes slander per se.

Question 54

What is required for a prima facie case for strict liability?

Answer 54

A prima facie case for strict liability requires:

i) An absolute duty to make the plaintiff’s person or property safe;

ii) Breach;

iii) Actual and proximate causation; and

iv) Damages.

Question 55

What are the typical situations to which strict liability is applied?

Answer 55

Strict liability is typically applied to dangerous activities, animals, and defective or dangerous products.

Question 56

In negligence actions, what standard of care applies to a professional?

Answer 56

A professional person (e.g., doctor, lawyer, or electrician) is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community.

A specialist may be held to a higher standard than a general practitioner because of his superior knowledge.

Note: Establishing negligence by a professional person generally requires expert testimony to establish both the applicable standard of care and the defendant’s deviation from that standard.

Question 57

In what circumstances does a landlord have negligence liability to a tenant or third party for injuries suffered on the leased premises?

Answer 57

The landlord is liable for injuries to the tenant and others occurring:

i) In common areas such as parking lots, stairwells, lobbies, and hallways;
ii) as a result of hidden dangers about which the landlord fails to warn the tenant;
iii) on premises leased for public use;
iv) as a result of a hazard caused by the landlord’s negligent repair; or
v) involving a hazard that the landlord has agreed to repair.

Question 58

How does product misuse affect the recovery of damages in a strict products liability action?

Answer 58

The misuse, alteration, or modification of a product by the user in a manner that is neither intended by nor reasonably foreseeable to the manufacturer typically negates the manufacturer’s liability.

Question 59

What is the definition of a private nuisance?

Answer 59

A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual’s use and enjoyment of his land.

Question 60

How does a defendant’s compliance with governmental regulations affect a private nuisance action?

Answer 60

Statutory or regulatory compliance is not a complete defense but may be admitted as evidence as to whether the interference with the plaintiff’s use and enjoyment of her land is unreasonable.

Question 61

What is the imminence requirement for assault?

Answer 61

The threatened bodily harm or offensive contact must be imminent, i.e., without significant delay. Threats of future harm are insufficient, as are threats made by a defendant too far away to inflict any harm; but threat of future contact can satisfy the imminence requirement in some circumstances.

Question 62

What are the four elements of negligence?

Answer 62

A prima facie case of negligence consists of four elements:
i) Duty, the obligation to protect another against unreasonable risk of injury;
ii) Breach, the failure to meet that obligation;
iii) Causation (factual and proximate), a close causal connection between the action and the injury; and
iv) Damages, the loss suffered.

Note: The plaintiff must establish all four elements of negligence by a preponderance of the evidence.

Question 63

What is the learned-intermediary rule regarding prescription drugs and medical devices in the context of strict products liability?

Answer 63

The manufacturer of a prescription drug or medical device typically satisfies its duty to warn the consumer by informing the prescribing physician, rather than the patient, of problems with the drug or device.

Question 64

What are the elements of res ipsa loquitur under the traditional approach?

Answer 64

Under the traditional standard for res ipsa loquitur, the plaintiff must prove that:

i) The accident was of a kind that ordinarily does not occur in the absence of negligence;

ii) It was caused by an agent or instrumentality within the exclusive control of the defendant; and

iii) It was not due to any action on the part of the plaintiff.

Question 65

When may a defendant be liable to a third-party victim for IIED?

Answer 65

A defendant who causes harm to an individual may be liable when his intentional or reckless conduct also causes severe emotional distress to a close family member of the individual who contemporaneously perceives the defendant’s extreme and outrageous conduct. The close family member need not suffer bodily harm.

If the defendant’s design or purpose was to cause severe distress to the third-party victim, the victim need not have contemporaneously perceived the conduct or be a close family member of the harmed individual.

Question 66

What are the elements of assault?

Answer 66

1) Plaintiff’s reasonable apprehension,

2) Of an imminent harmful or offensive bodily contact,

3) Caused by the defendant’s action or threat,

4) With the intent to cause either the apprehension of such contact or the contact itself.

Question 67

When has a plaintiff impliedly assumed a risk?

Answer 67

Generally, a plaintiff must voluntarily encounter a known, specific risk in order to have impliedly assumed that risk. Most courts hold that the voluntary encountering must also be unreasonable.

Question 68

What is the effect of a plaintiff impliedly assuming a risk?

Answer 68

In most comparative fault jurisdictions, this form of assumption of the risk has been merged into the comparative-fault analysis and merely reduces recovery. In the few contributory negligence jurisdictions and in a minority of comparative-fault jurisdictions, this form of assumption of the risk remains a total bar to recovery.

Question 69

What qualifies as contact with the “plaintiff’s person” for the purposes of battery?

Answer 69

Contact with anything connected to the plaintiff’s person qualifies as contact with the plaintiff’s person for the purposes of battery (e.g., a person’s clothing, a pet held on a leash, a bicycle ridden by the plaintiff).

Question 70

What are the rules regarding the use of force by parents in disciplining a child?

Answer 70

A parent is privileged to use reasonable force, threat of force, or confinement against the parent’s minor child for the purpose of disciplining, educating, controlling, or otherwise promoting the welfare of the child.

Question 71

What is the “merchant’s privilege?”

Answer 71

A merchant is privileged to use force against another for the purpose of (i) investigating, (ii) recapturing, or (iii) facilitating an arrest.

To be entitled to this privilege, the merchant must reasonably believe that the other has wrongfully (i) taken/is attempting to take merchandise; or (ii) failed to pay.

In addition, the merchant’s use of force against the other must be (i) on or near the premises, (ii) reasonable, and (iii) for a reasonable time.

Question 72

What test is applied by most courts when the conduct of two or more defendants may have contributed to a plaintiff’s indivisible injury?

Answer 72

Substantial-factor test: In cases in which the conduct of two or more defendants may have contributed to a plaintiff’s indivisible injury, each of which alone would have been a factual cause of that injury, the test applied by most courts is whether the defendant’s tortious conduct was a substantial factor in causing the plaintiff’s harm.

Note: Under the minority rule of the Third Restatement, each such cause or act is regarded as a factual cause of the harm. Together they are designated as “multiple sufficient causes.”

Question 73

What is an abnormally dangerous activity?

Answer 73

An activity that:

i) Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised; and

ii) The activity is not commonly engaged in.

Note: In addition to these requirements, in evaluating whether an activity is abnormally dangerous, courts often consider the gravity of the harm resulting from the activity, the inappropriateness of the place where the activity is being conducted, and the limited value of the activity to the community.

Question 74

For what harms from an abnormally dangerous activity is strict liability applicable?

Answer 74

Strict liability for an abnormally dangerous activity exists only if harm that actually occurs results from the risk that made the activity abnormally dangerous in the first place.

Question 75

What are the elements for strict products liability?

Answer 75

The plaintiff must plead and prove:

i) The product was defective;

ii) The defect existed when it left the defendant’s control; and

iii) The defect caused the plaintiff’s injury when the product was used in a reasonably foreseeable way.

Question 76

When may someone use deadly force to defend property?

Answer 76

Deadly force may not be used merely in defense of property. A person may never use a deadly mechanical device (e.g., a spring-loaded gun) to defend property.

Question 77

What elements must be established for violation of a statute to constitute negligence per se?

Answer 77

1) A criminal or regulatory statute imposes a specific duty for protection of others;

2) The defendant neglects to perform the duty;

3) The defendant is liable to anyone in the class of people intended to be protected by statute; and

4) The harm is of the type the statute was intended to protect against.

Note: In a minority of jurisdictions, violation of the statute is merely evidence of negligence (a rebuttable presumption as to duty and breach rather than a conclusive presumption).

Question 78

When is conduct considered extreme and outrageous for the purposes of IIED?

Answer 78

Conduct is extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society. The character of the conduct must be outrageous and the conduct must be sufficiently unusual to be extreme.

Note: While liability generally does not extend to mere insults, threats, or indignities, a defendant’s abusive language and conduct may be sufficiently “extreme and outrageous” if the defendant is in a position of authority or influence over the plaintiff, or the plaintiff is a member of a group with a known heightened sensitivity.

Question 79

What is the last clear chance doctrine?

Answer 79

In contributory-negligence jurisdictions, the plaintiff may mitigate the legal consequences of her own contributory negligence if she proves that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so.

The last clear chance doctrine has been abolished in most comparative-fault jurisdictions. Instead, the plaintiff’s negligence is considered in determining the recovery to which the defendant is entitled.

Question 80

Name the three types of entrants to whom a possessor of land owe a duty

Answer 80

1. Trespasser
2. Licensee
3. Invitee

Question 81

What duties does a land possessor owe a trespasser?

Answer 81

A land possessor is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers. (Note: Land possessors generally owe no duty to undiscovered trespassers, nor do they have a duty to inspect their property for evidence of trespassers.)

Question 82

What duties does a land possessor owe a licensee?

Answer 82

A land possessor has a duty to either correct or warn a licensee of concealed dangers that are either known to the land possessor or that should be obvious to her. (Note: The land possessor does not have a duty to inspect for dangers, but must exercise reasonable care in conducting activities on the land.)

Question 83

What duties does a land possessor owe an invitee?

Answer 83

A land possessor owes an invitee the duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them. (Note: The duty of reasonable care owed to an invitee does not extend beyond the scope of the invitation, and the invitee is treated as a trespasser in areas beyond that scope.)

Question 84

How is express consent, as a defense to intentional torts, established?

Answer 84

The plaintiff expressly consents to the defendant’s otherwise tortious intentional conduct if the plaintiff is willing for that conduct to occur. Such willingness may be express or inferred from the facts.

Note: Actual consent extends to conduct by the defendant that is not substantially different in nature from the conduct that the plaintiff is willing to permit. But when a plaintiff places a limiting condition on her actual consent (e.g., on time or place), the consent is legally effective only within the limits of that condition.

Question 85

What is the effect of a plaintiff’s establishment of res ipsa loquitur?

Answer 85

If the plaintiff establishes a prima facie case of res ipsa, then the trial court should deny the defendant’s motion for a directed verdict, and the issue of negligence must be decided by the trier of fact. In most jurisdictions, res ipsa does not require that the trier of fact find negligence on the defendant’s part. It simply establishes an inference of negligence sufficient to avoid dismissal of the plaintiff’s action.

Question 86

In negligence actions, what standard of care is imposed upon a child?

Answer 86

The standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience.

Note: A child engaged in a high-risk activity that is characteristically undertaken by adults, such as driving a car, is held to the same standard as an adult.

Question 87

What is the definition of trespass to land?

Answer 87

The defendant’s intentional act causes a physical invasion of the land of another.

Note: The defendant need only have the intent to enter the land or to cause a physical invasion. The defendant need not know that the land belongs to another. Mistake of fact is not a defense.

Question 88

What is the definition of trespass to chattel?

Answer 88

The defendant intentionally interferes with the plaintiff’s right of possession by either:

i) Dispossessing the plaintiff of the chattel; or

ii) Using or intermeddling with the plaintiff’s chattel.

Note: Trespass to chattels requires that the plaintiff show actual harm to or deprivation of the use of the chattel for a substantial time.

Question 89

What is the definition of trespass to chattel?

Answer 89

The defendant intentionally interferes with the plaintiff’s right of possession by either:

i) Dispossessing the plaintiff of the chattel; or

ii) Using or intermeddling with the plaintiff’s chattel.

Note: Trespass to chattels requires that the plaintiff show actual harm to or deprivation of the use of the chattel for a substantial time.

Question 90

When is the owner of a wild animal strictly liable for harm done by the animal?

Answer 90

An owner of a wild animal is strictly liable for harm done by that animal, despite any precautions the possessor has taken to confine the animal or prevent the harm, if the harm arises from a dangerous propensity that is characteristic of such a wild animal or of which the owner has reason to know.

Strict liability also applies to injury caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal.

Question 91

What level of force may be used when recapturing one’s personal property?

Answer 91

A person is generally not privileged to commit battery, assault, or false imprisonment to regain possession of personal property.

Note: Under the “fresh pursuit” exception, when a plaintiff wrongfully takes personal property from a defendant’s possession, the defendant may use reasonable, nondeadly force to regain possession of the property if the defendant acts promptly.

Question 92

When will a court hold a child or a mentally incompetent person liable for an intentional tort?

Answer 92

A majority of courts hold that both children and those who are mentally incompetent can be held liable for intentional torts if they act with the requisite mental state.

Question 93

In what ways may a plaintiff be confined resulting in false imprisonment?

Answer 93

The defendant may confine the plaintiff by the use of physical barriers, physical force or restraint or the threat of physical force or restraint, duress other than by threat of physical force or restraint, or by the assertion of legal authority.

Question 94

What are four invasion of privacy torts?

Answer 94

1) Misappropriation of the right to publicity;

2) Intrusion upon seclusion;

3) Placing the plaintiff in a false light; and

4) Public disclosure of private facts

Question 95

What are six circumstances in which a defendant has an affirmative duty to act?

Answer 95

1) Assumption of duty - A person who voluntarily aids or rescues another has a duty to act with reasonable ordinary care in the performance of that aid or rescue.

2) Placing another in peril - A person who places another in peril is under a duty to exercise reasonable care to prevent further harm by rendering care or aid.

3) Contract - There is a duty to perform contractual obligations with due care.

4) Authority - One with actual ability and authority to control another, such as parent over child and employer over employee, has an affirmative duty to exercise reasonable control.

5) Special relationship - A defendant with a unique relationship to a plaintiff, such as business proprietor–patron, common carrier–passenger, innkeeper-guest, employer-employee, or parent-child, may have a duty to protect, aid, or assist the plaintiff and to prevent reasonably foreseeable injury to her from third parties.

6) Statutory obligation - A statute that imposes an obligation to act for the protection another but does not expressly or impliedly create or reject a private cause of action may give rise to an affirmative duty to act.

Question 96

In a negligence action, when are damages for economic loss allowed?

Answer 96

If a plaintiff has proven non-economic injury, he is entitled to recover both economic and non-economic damages.

Note: A plaintiff who suffers only economic loss without any related personal injury or property damage generally cannot recover such loss through a negligence action.

Question 97

What is the definition of conversion?

Answer 97

The defendant intentionally commits an act depriving the plaintiff of possession of her chattel or interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff of the use of the chattel.

Note: The plaintiff may recover damages in the amount of the full value of the converted property at the time of the conversion. Alternatively, the plaintiff may bring an action for replevin to recover the chattel.

Question 98

What is the “eggshell plaintiff” rule?

Answer 98

The defendant is liable for the full extent of the plaintiff’s injuries that may be increased because of the plaintiff’s preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable.

Question 98

What is the “eggshell plaintiff” rule?

Answer 98

The defendant is liable for the full extent of the plaintiff’s injuries that may be increased because of the plaintiff’s preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable.

Question 99

What is the “zone of danger” rule for negligent infliction of emotional distress (NIED)?

Answer 99

A plaintiff can recover for NIED from a defendant whose tortious conduct placed the plaintiff in harm’s way if she shows that:

i) she was within the “zone of danger” of the threatened physical impact (feared for his own safety); and

ii) the threat of physical impact caused emotional distress (usually via physical symptoms).

Question 100

Must the plaintiff be aware of what is happening for an act to constitute assault or battery?

Answer 100

For assault, the plaintiff must be aware or have knowledge of the defendant’s act or threat. However, there is no such requirement for battery.