Torts

Question 1

Transferred Intent

Answer 1

The transferred intent doctrine allows an intent to commit a tort against one person to be transferred to the committed tort OR to the injured person. It applies to:
(1) assault
(2) battery
(3) false imprisonment
(4) trespass to land
(5) trespass to chattels

No tort liability for an attempted assault standing alone

Question 2

Which of the following statements as to assault is correct?

(A) the plaintiff must be aware of the source of the threatened contact
(B) the plaintiff may apprehend an immediate harmful or offensive contact without feeling fear or intimidation
(C) a defendant is never liable for the plaintiff’s unreasonable fears
(D) transferred intent may not be used for assault

Answer 2

(B) - in an assault case, the P may apprehend an immediate harmful or offensive contact without feeling fear or intimidation - apprehension is not the same as fear or intimidation - apprehension here is used in the sense of expectation

*It is incorrect to state that a defendant is never liable for the plaintiff’s unreasonable fears. Although typically the plaintiff’s apprehension of harmful or offensive contact must be reasonable, and courts generally will not protect a plaintiff against exaggerated fears, a defendant will be liable if he knows of the plaintiff’s unreasonable fear and uses it to put the plaintiff in apprehension.

The P does not need to be aware of the SOURCE of the threatened contact - if the P apprehends an imminent harmful or offensive contact, the D who initiated the threat is liable even if the P does not know the D’s identity or location at that point

Question 3

For a prima facie case of assault, the element of apprehension typically cannot be established by _____

Answer 3

Words alone

*words alone, no matter how violent, generally cannot create a reasonable apprehension of immediate harmful or offensive contact - some overt act is usually required - if the words are accompanied by an overt act, like clenching a fist, then apprehension may be proved

Question 4

Prima facie case of Battery

Answer 4

The elements that must be established for a prima facie case of battery are:
(1) an act by the defendant that brings about harmful or offensive contact to the plaintiff’s person; (anything connected to P’s person is part of the person) (indirect contact also will suffice)
(2) intent by the defendant to bring about the harmful or offensive contact; and
(3) causation

*Contact is HARMFUL if it causes actual injury, pain or disfigurement
*Contact is OFFENSIVE if it would be considered offensive to a reasonable person (offensive = unpermitted)

If a person knows with SUBSTANTIAL CERTAINTY the consequences of his action, he has the INTENT necessary for battery - if NOT, then not liable for battery
(if a D intends to cause a harmful contact, he is liable for all of the consequences of his actions, whether he intended them or not. A defendant need not FORESEE the extent of the injuries caused by his intentional act to be held liable for them)**

Question 5

Prima facie case for Assault

Answer 5

The prima facie case for assault requires:
(1) an act by defendant causing a reasonable apprehension in plaintiff of immediate harmful or offensive contact to plaintiff’s person;
(2) intent by defendant to bring about in plaintiff apprehension of that contact; and
(3) causation

For there to be apprehension, P must be aware of the D’s act at the time that it is occurring

Question 6

Force may not be used by ______

(A) a property owner to defend property from tortious interference
(B) a citizen in effecting a misdemeanor arrest
(C) a landowner to regain real property after being tortiously dispossessed
(D) an owner of chattel to recapture the chattel

Answer 6

(C) - A landowner may not use force to regain real property after being tortiously dispossessed. Most states do not allow resort to “self-help”

*An owner of chattel may use force to recapture the chattel when in “hot pursuit” of the tortfeasor. A demand for the return of the chattel must be made before the force is used, unless the demand would be futile or dangerous.

*A property owner may use force to defend the property from tortious interference. Although a property owner may use reasonable force to defend property, she may not use force that will cause death or serious bodily harm. Furthermore, 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 7

Can a defendant assert the defense of property if she uses force against one with a privilege to enter the property?

Answer 7

NO - whenever an actor has a privilege to enter upon the land of another because of necessity, right of reentry, right to enter upon another’s land to recapture chattels, etc., that privilege supersedes the privilege of the land possessor to defend her property

A landowner’s reasonable belief/mistake that he had a right to defend his property generally is not a defense to the entrant’s exercise of a privilege, such as necessity, that supersedes the defense of property right

Question 8

Shopkeeper’s Privilege

Answer 8

A shopkeeper has a privilege to detain a suspected shoplifter for investigation. For the privilege to apply, the following conditions must be met:
(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 nondeadly force can be used
(3) the detention must be only for a reasonable period of time and only for the purpose of making an investigation

This is usually a defense to false imprisonment - but it is equally applicable as a defense to other intentional torts

Question 9

Recapture of Chattels

Answer 9

If another’s possession began lawfully
- one may use only peaceful means to recover the chattel

If another’s possession began lawfully
- reasonable force may be used to recapture a chattel only when in hot pursuit of one who has obtained possession wrongfully, for example, by theft.

Question 10

Good Samaritan Law

Answer 10

A “Good Samaritan” law refers to a statute exempting licensed doctors, nurses, etc., who voluntarily and gratuitously render emergency treatment, from liability for ordinary negligence

*Has nothing to do with breach of duty - can’t be used to establish breach of duty

Question 11

To show breach of duty, a plaintiff may rely on evidence of:

Answer 11

• custom or usage
• violation of a statute
• res ipsa loquitor

Question 12

Joint and Several Liability (Traditional Contribution and Comparative Contribution)

Answer 12

Under joint and several liability, each defendant found by the trier of fact to be at fault for an indivisible injury is liable to the plaintiff for the ENTIRE AMOUNT of the damages incurred, not just a portion of it (of course, multiple recovery is not allowed).

*Under a joint and several liability system, COMPARATIVE contribution allows a defendant who pays more than his share of damages to recover the excess from the other jointly liable parties; responsibility is thus apportioned among those at fault.

TRADITIONAL contribution rules require all defendants to pay equal shares regardless of their respective degrees of fault, (while states with a COMPARATIVE contribution system impose contribution in proportion to the relative fault of the various defendants). Nevertheless, this simply means that a defendant (assuming it paid the judgment award to the plaintiff) has contribution rights against the other defendants - this DOES NOT means that the defendant’s liability to the plaintiff is based on their relative fault.

Question 13

Conversion vs. Trespass to Chattels

Answer 13

Conversion consists of:
(1) an act by defendant interfering with plaintiff’s right of possession in the chattel;
(2) intent to perform the act bringing about the interference with plaintiff’s right of possession;
(3) causation; and
(4) damages - an interference that is serious enough in nature of consequence to warrant that the defendant pay the FULL VALUE of the chattel
*Intent to trespass is not required; intent to do the act of interference with the chattel is sufficient for liability

Trespass to Chattels:
- same elements as above, but damages = actual damages from harm to chattel or loss of use

*Trespass to Chattels = intentional act by the defendant that interferes with the plaintiff’s right of possession in the chattel

*Conversion = intentional act by the defendant that interferes with the plaintiff’s right of possession in the chattel AND the interference is serious enough in nature or consequences to warrant that the defendant pay the chattel’s full value

Question 14

False Imprisonment

Answer 14

For false imprisonment, the plaintiff must show:
(1) an act or omission on the part of the defendant that confines or restrains the plaintiff to a bounded area,
(2) intent on the part of the defendant to confine or restrain the plaintiff; and
(3) causation

damages not required - P can recover nominal damages even if actual damages are not proved. punitive damages may be recovered if the defendant acted maliciously
**BUT, P must know of the confinement OR be harmed by it to recover

*having the status of being a trespasser does not preclude a plaintiff from recovering for false imprisonment (but trespasser would still be liable for their trespass)

Question 15

Res Ipsa Loquitor

Answer 15

The doctrine of RIL provides that, where the facts are such as to strongly indicate that the plaintiff’s injuries resulted from the defendant’s negligence, the trier of fact may be permitted to infer the defendant’s liability. The plaintiff must establish that:
(1) the accident causing the injury is a type that would not normally occur unless someone was negligent; and
(2) the negligence is probably attributable to the defendant (meaning that this type of accident ordinarily happens because of the negligence of someone in the defendant’s position)

*(2) can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant - but actual possession of the instrumentality is NOT necessary

*Effect of RIL = inference of breach (NOT a “presumption” of breach)
- Where RIL is established, the P has made a prima facie case and no directed verdict may be given for D. The P can still lose, however, if the inference of negligence is rejected by the trier of fact
- *D is not required to present evidence of due care in rebuttal - if the jury elects not to infer negligence, it may find for the D even if the D presents no evidence on that issue

Question 16

Proximate Cause - Direct Cause Case

Answer 16

A direct cause case is one where the facts present an uninterrupted chain of events from the time of the defendant’s negligent act to the time of plaintiff’s injury

*If a particular harmful result was at all foreseeable from the defendant’s negligent conduct, the unusual timing of cause and effect or the unusual manner in which the injury occurred is NOT relevant to the defendant’s liability

Question 17

Proximate Cause - Indirect Cause Case

Answer 17

In indirect cause cases, another force comes into play AFTER the defendant’s negligent act and combines with it to cause the injury the plaintiff. Whether an intervening force will cut off the defendant’s liability for the plaintiff’s injury and be deemed superseding is determined by foreseeability.

If the other force was foreseeable = proximate cause

Question 18

Private Nuisance

Answer 18

A private nuisance is a substantial, unreasonable interference with another person’s use or enjoyment of her property. The interference must be offensive, inconvenient, or annoying TO THE AVERAGE PERSON IN THE COMMUNITY. It is not a substantial interference if it merely interferes with a specialized used of the land.

(ex: dog whistle question - the testing of the dog whistles did not bother humans, and so it did not disturb the average person in the community. It is disturbing to the breeder’s dogs, but this affects only her specialized use of her land.

Question 19

Public Nuisance

Answer 19

A public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community (for example, using a building for criminal activities such as prostitution). Recovery by a private party is available for a public nuisance only if the private party suffered unique damaged not suffered by the public at large.

Question 20

Attractive Nuisance Doctrine

Answer 20

Under this doctrine, a landowner has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children, including trespassing children, caused by artificial conditions on his property

Question 21

General Duty of Care

Answer 21

Whenever a person engages in an activity, he is under a legal duty to act as a reasonably prudent person engaged in the same or similar activity. If a defendant’s conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff

A duty of care is owed only to foreseeable plaintiffs - the class of persons who were foreseeably endangered by the defendant’s negligent conduct

Question 22

Duty of Owners of Property to those off the premises

Answer 22

The owner/possessor of property has a duty to exercise reasonable care with respect to activities on the land to avoid unreasonable risk of harm to others outside the property. To be owed a duty, those outside the property must be within the foreseeable “zone of danger” from the defendant’s activity.

Question 23

Breach

Answer 23

When a defendant’s conduct falls short of that level required by the applicable standard of care owed to the plaintiff, the defendant has breached their duty. Whether the duty of care is breached in an individual case is a question of fact for the jury

Plaintiff may use the following to show proof of breach:
(1) NPS (conclusive)
(2) evidence of custom, usage, or industry standards (not conclusive)
(3) RIL (inference of breach)

Question 24

Strict Liability - Abnormally Dangerous Activities

Answer 24

Courts generally impose 2 requirements for finding an activity to be abnormally dangerous:
(1) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and
(2) the activity is not a matter of common usage in the community

*However, the scope of liability extends only to the dangers that would be anticipated from the activity involved - SL does not apply to harms that were not caused by the normally dangerous aspect or propensity of the activity

Common examples:
(1) blasting or manufacturing explosives
(2) storing or transporting dangerous chemicals or biological materials
(3) anything involving radiation or nuclear energy

Question 25

Strict Liability - Domesticated Animals

Answer 25

Normally, the owner of a domestic animal is NOT strictly liable for injuries it causes. SL will attach, however, if the owner knows of the domestic animal’s dangerous propensities, i.e., propensities more dangerous that normal for that species

Trespassing Animals
- an owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals

Question 26

Wild Animals

Answer 26

An owner is strictly liable to licensees and invitees for injuries caused by wild animals (even those kept as pets)

Strict Liability not Available to Trespassers
- SL will generally not be imposed in favor of trespassers. To recover for their injuries from a wild animal (or abnormally dangerous domestic animal) a trespasser must prove the owner’s negligence

Question 27

Which of the following will not negate a claim of strict liability for an abnormally dangerous activity?

(A) there was an unforeseeable intervening force
(B) the type of harm that occurred was not foreseeable
(C) the plaintiff was not foreseeable
(D) the defendant did not foresee a risk of harm

Answer 27

(D) - the fact that the D did not foresee a risk of harm will not negate a claim of strict liability for an abnormally dangerous activity. To prevail, a plaintiff need only show that a reasonable person could have foreseen the risk of harm, regardless of whether the defendant did not

*if the P was not foreseeable, the SL claim is not established - the D’s liability for an abnormally dangerous activity extends only to foreseeable plaintiffs, who are person to whom a reasonable person would have foreseen a risk of harm under the circumstances.

*If the type of harm was not foreseeable, the P cannot establish a strict liability claim - the harm must result from the kind of danger to be anticipated from the abnormally dangerous activity; i.e., it must flow from the “normally dangerous propensity” of the condition or thing involved.

Question 28

In contrast to products liability cases based on negligence, those based on strict liability do NOT:

Answer 28

require that suppliers have an opportunity to inspect

*Unlike with product liability cases based on negligence, those based on strict liability do not require that suppliers have an opportunity to inspect. Thus, for a case based on the sale of a defective product, a retailer in a strict liability action may be liable for a manufacturing or design defect simply for being a commercial supplier of that defective product, even if it had no opportunity to inspect the manufacturer’s product before selling it. In a negligence action, the supplier’s negligence must be proved.

*However, the failure of a retailer to take action after discovering a dangerous defect may prevent establishing causation against a manufacturer = superseding intervening cause and may cut off manufacturer’s liability

Question 29

Products Liability Based on Strict Liability

Answer 29

Products liability based on strict liability consists of the following:
(1) the defendant is a merchant (commercial supplier);
(2) the product is defective;
(3) the product was not substantially altered since leaving the defendant’s control; and
(4) the plaintiff was making a foreseeable use of the product at the time of the injury

(also, the product was the actual and proximate cause of the plaintiff’s injury; and the plaintiff suffered damages to person or property)

Question 30

Types of Defects

Answer 30

Manufacturing Defects
- product emerges from manufacturing different from others in a way that makes it more dangerous that consumers would expect (departs from intended design)

Design Defects
- when the risks associated with the product’s design outweigh the utility of the design
- P must show alternative design:
(1) would have been safer (by doing x,y,z);
(2) was more practical (wouldn’t interfere with product’s primary purpose); and
(3) was economically feasible (costs about the same as the version that was marketed or only a tiny bit more)

Information Defects
- when a product has hidden risks that are not apparent to users, it will be deemed defective unless it carries adequate warnings and instructions
- Adequate Warnings:
(1) Prominent (has to be calculated to come to the attention of the user - can’t be hidden)
(2) Comprehensible (user has to be able to process what is being said); and
(3) Provide information about mitigating risk

Question 31

Last Clear Chance - Traditional Contributory Negligence jurisdictions only

Answer 31

The doctrine of last clear chance permits a plaintiff to recover despite their own contributory negligence

Question 32

Eggshell-Skull Plaintiff

Answer 32

The eggshell-skull plaintiff rule provides that a tortfeasor is liable even for injuries suffered by the plaintiff that were unforeseeable in extent or severity, such as the aggravation of an existing illness or injury

Question 33

Joint and Several Liability

Answer 33

When two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortious actor will be jointly and severally liable for that injury. Joint and several liability permits a plaintiff to recover the entire judgment amount from any defendant
- Contribution allows a defendant required to pay more than his share of damages to recover from the other jointly liable parties for the excess. In other words, contribution apportions responsibility among those who are at fault
- Indemnity involves shifting the entire loss between or among tortfeasors, and is available where:
(1) there is a contractual promise to indemnify;
(2) there is a special relationship between the defendant that would allow for vicarious liability; or
(3) the defendant is a supplier in a strict products liability case who is liable to an injured customer, thus giving the supplier a right of indemnification against previous suppliers in the distribution chain

Question 34

Intent for Intentional Torts

Answer 34

The intent that is relevant for purposes of intentional torts is the intent to bring about the forbidden consequences that are the basis of the tort
- the defendant does not need to intend the specific injury that results

*A person can have the intent necessary for an intentional tort even though he does not desire to “harm” the victim.

Question 35

Intent for Battery

Answer 35

Intent can be established by showing the defendant’s intent to cause EITHER:
(1) a harmful or offensive bodily contact; or
(2) an imminent apprehension by the plaintiff of a harmful or offensive bodily contact (transferred intent)

Question 36

Duty to Mitigate

Answer 36

In all cases, the plaintiff has a duty to take reasonable steps to mitigate damages (for example, seek appropriate treatment)
- failure to do so will preclude recovery for any particular item of injury that occurs or is aggravated due to the failure to mitigate

Question 37

Defamation

Answer 37

To establish a prima facie case for defamation, the following elements must be proved:
(1) a defamatory statement that identifies the plaintiff,
(2) publication to a third person
(3) damage to the reputation of the plaintiff
(4) falsity of the defamatory language; and
(5) fault on the defendant’s part

*The publication requirement is satisfied when there is a communication to a third person who understands it. However, the communication to the third person must be made either intentionally or negligently; if it was not reasonably foreseeable that the defamatory statement would be overheard by the sales representative, the fault requirement for the publication is not satisfied

Question 38

Attractive Nuisance Doctrine

Answer 38

Under the attractive nuisance doctrine, an owner or occupier of land will be liable for their failure to exercise reasonable care to protect a trespassing child from physical harm caused by artificial conditions on the land if:
(1) the condition is in a place where children are likely to trespass;
(2) the risk is one the owner or occupier knows or should know involves an unreasonable risk of death or serious bodily harm;
(3) the risk is one that children would not realize because of their youth; and
(4) the owner or occupier’s utility in maintaining the dangerous condition and the burden of eliminating the danger are slight compared to the risk to the children

Question 39

Intentional Interference with Contract

Answer 39

To establish a prima facie case of intentional interference with a contract, the plaintiff must prove that:
(1) a valid contract existed between the plaintiff and a third party;
(2) the defendant knew of the contractual relationship;
(3) the defendant intentionally interfered with the contract, causing a breach; and
(4) the breach caused damages to the plaintiff