Torts

Question 1

Intentional

Answer 1

defendant intended to commit an act, that caused harm to another, and that harm was forseeable

Question 2

Preponderance of Evidence

Answer 2

to prove something is more likely than not

Question 3

Compensatory Damages

Answer 3

medical bills, lost wages, harm to reputation, sometimes emotional distress

Question 4

Punitive Damages

Answer 4

defendant’s conduct was “willful and wanton”, this is intended to punish and deter

Question 5

Battery

Answer 5

the intentional and harmful OR offensive touching of another without their consent

Question 6

Elements of Battery

Answer 6

• Harmful - produced bodily injury
• Offensive - calculated to offend a reasonable sense of personal decency
• Intentional - either intent to cause the conduct or intent to cause apprehension that such contact is imminent (and then contact occurs)

Question 7

Doctrine of Transferred Intent

Answer 7

if you mean to hit arthur, but miss and instead hit bobby you are still liable for bobby’s injury

Question 8

Assault

Answer 8

intentionally placing another in immediate apprehension for their physical safety, it HAS to be imminent!

Question 9

Assault/Battery in Business

Answer 9

If a bouncer is being aggressive, not only is the bouncer liable but so is the bar/club, also negligence

Question 10

False Imprisonment

Answer 10

Intentional, unjustified confinement of a non-consenting person

Question 11

False Imprisonment in businesses

Answer 11

Mall jails - shoplifters, if handled improperly…it must be injustified. it has to be for a reasonable time and in a reasonable way

Question 12

Defamation

Answer 12

publication of untrue statements about another person that hold that person’s character in contempt or ridicule

Question 13

2 Kinds of Defamation

Answer 13

Slander - oral
Libel - written

Question 14

Defenses to Defamation

Answer 14

1. Truth (defendant’s burden to prove the truth)
2. News media are not liable for defamatory untruth printed about public officials and figures…unless the plaintiff can prove untruths were published with malice

Question 15

Injurious Falsehood (Trade Disparagement)

Answer 15

publication of untrue statement that disparage the plaintiff’s business, product, or quality

Question 16

Invasion of Privacy

Answer 16

interference with a person’s right to be left alone

Question 17

3 Kinds of Invasion of Privacy

Answer 17

1. Public disclosure of private facts - where disclosure is highly offensive to a reasonable person BUT not for public figures/truth is not defense
2. Intrusion upon solitude - intentionally intruding on a person’s private life (wiretapping, stalking)
3. Unauthorized appropriation of name or likeness for commercial purposes - without consent or to imply endorsement

Question 18

Fraud

Answer 18

false, material misrepresentation of fact

Question 18

Fraud is a…

Answer 18

tort, crime, and defense to contract

Question 19

Mail and Wire Fraud

Answer 19

any other kind of fraud done through mail or by electronic means across state lines (20 years in prison)

Question 20

Securities Fraud

Answer 20

often based on financial statements provided to public

Question 21

Health Care Fraud

Answer 21

e.g billing for services not performed, “upcoding”, accepting kickbacks for referrals

Question 22

Bankruptcy Fraud

Answer 22

falsify info in bankruptcy proceedings by either the debtor (not disclosing assets) or a creditor (inflating claim)

Question 23

Tax Fraud

Answer 23

willful evasion of taxes

Question 24

Intentional Interference with Contractual Relations

Answer 24

defendant intentionally interferes with an existing contract between plaintiff and third party (trying to steal employees who have agreed to work for a certain time)

Question 25

Conversion

Answer 25

wrongful exercise of power and control over personal resources that belong to another (stealing, withholding, destroying, transferring something that is not yours)

Question 26

Trespassing

Answer 26

any unauthorized intentional intrusion upon another’s real property
* only need minimal intent - intended to be on land

Question 27

Versions of Trepassing

Answer 27

• physically entering land
• causing another person to enter plaintiff’s land
• remaining on land after one’s rights have ceased
• failing to remove from the land something you have a duty to
• causing an object to enter the land
• invading airspace or subsurface

Question 28

Computer Fraud and Abuse Act

Answer 28

knowingly and with intent to defraud, accesses a protected computer without authorization AND obtains anything of value

Question 29

Nuisance

Answer 29

interference with the plaintiff’s use and enjoyment of their land that is substantial and unreasonable

Question 30

Negligence

Answer 30

1. defendant owed a duty of care to plaintiff, AND
2. defendant breached that duty, AND
3. breach was actual and proximate cause of the injury experienced by plaintiff

Question 31

Duty

Answer 31

duty to perform obligations with knowledge, skill, and care

Question 32

Duty of Reasonable Care

Answer 32

must act a reasonable person would act under same or similar circumstances

Question 33

**Property Damage, you must know…

Answer 33

property damages is the consequence of some tort it is not itself a tort, you must tie it to a tort

Question 34

Types of Injuries

Answer 34

• Personal
• Property
• Emotional

Question 35

Plaintiff can recover for only those injuries that were caused by the breach of duty. The breach must cause the injury in BOTH two ways:

Answer 35

• Actual Cause: the injury would not have occurred “but for” the breach AND
• Proximate Cause: the injury is a “natural and probable consequence” of the breach

Question 36

Defenses to Negligence

Answer 36

Intervening cause, contributory or comparative negligence, or assumption of the risk

Question 37

Intervening Cause

Answer 37

a later act, force, or event that was not foreseeable to the defendant contributes to the injury

Question 38

Contributory Negligence

Answer 38

if the plaintiff has any fault in causing the harm, defendant is not liable at all

Question 39

Comparative Negligence

Answer 39

jury assigns % of fault to plaintiff and each defendant, only liable for you % (Kansas law - plaintiff is over 50% liable then it is contributory)

Question 40

Assumption of the Risk

Answer 40

voluntary consent to a known danger

Question 41

Negligence: Products Liability

Answer 41

a manufacturer or seller:
1. who sells a product in a defective condition
2. which is unreasonably dangerous to the user
3. is subject to liability for physical harm or property damage to the user if
4. the product reaches the user without substantial change in the condition in which it is sold
5. rule applies even if the manufacturer/seller has exercised all possible care

Question 42

A product is in a defective condition if it has a defect in…

Answer 42

design, manufacturing, instruction, or warning and such defect existed at the time the product left the manufacturer/seller

Question 43

A defective condition is unreasonably dangerous if it is…

Answer 43

used in the way it is ordinarily used, AND is dangerous to an extent beyond that which would be contemplated by the ordinary customer who purchased

Question 44

A consumer has a duty to use ordinary care for their own safety and protection, consumer must:

Answer 44

exercise ordinary care with reference to obvious defects and dangerous conditions, use product in accordance with adequate instructions and warnings, and use in a normal manner

Question 46

Plaintiff’s Duty to Mitigate Damages

Answer 46

in determining the amount of damages sustained, should not include any loss in which:
- plaintiff could have prevented
- by reasonable care and diligence
- exercised after the loss occurred

Question 47

Punitive Damages

Answer 47

• available in some intentional tort cases, if conduct was “willful and wanton”
• generally NOT available in breach of contract
• generally NOT available in negligence actions, unless “gross negligence”
• statutory caps