Torts

Question 1

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

Answer 1

When they act with the requisite mental state

Question 2

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

Answer 2

1. 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 family member need not suffer bodily harm.
2. When 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 3

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

Answer 3

The defendant may use deadly force only if the defendant reasonably believes that:

1. The plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force upon the defendant;
2. 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
3. The defendant can safely prevent the peril only by the immediate use of deadly force.

Question 4

What is the firefighter’s rule?

Answer 4

• An emergency professional, such as a police officer or firefighter, is barred from:

1. recovering damages from the party whose negligence caused the professional’s iunjury if the injury results from a risk inherent in the job.

Question 5

Assault–Elements

Answer 5

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 6

Words––Assault:

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

Answer 6

• Words alone are insufficient, BUT words coupled with conduct or other circumstances may be sufficient if:
  
  • the plaintiff reasonably anticipates that a harmful or offensive contact is imminent.

Question 7

Public Nuisance–Definition

Answer 7

An unreasonable interference with a right common to the general public

Question 8

A private citizen has a claim for public nuisance only if:

Answer 8

That citizen suffers harm that is different in kind from that suffered by members of the general public.

Question 9

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

Answer 9

In most comparative-fault jurisdictions:

• the plaintiff’s own negligence reduces his recovery in a strict-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.

Question 10

Intentional Infliction of Emotional Distress–Elements

Answer 10

1. the defendant’s intentional or reckless;
2. extreme and outrageous conduct;
3. that causes;
4. the plaintiff severe emotional distress.

Question 11

When is use of force in defending others justified?

Answer 11

Upon a reasonable belief that the cirucmstances are such that:
1. the third person has a privilege of self-defense against the plaintiff; AND
2. the defendant’s interevention is immediately necessary for the protection of the third person.

Question 12

What is the “merchant’s privilege”?

Answer 12

• A merchant is privileged to use force against another for the purpose of:
  1. investigating;
  2. recapturing; OR
  3. facilitating an arrest.
• To be entitled to this privilege, the merchant must reasonably believe that the other has wrongfully:
  1. taken/is attempting to take merchandise; OR
  2. failed to pay.
• In addition, the merchant’s use of force against the other must be:
  1. on or near the premises;
  2. reasonable; AND
  3. for a reasonable time.

Question 13

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

Answer 13

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.

Question 14

Joint & Several Liability

Answer 14

Each of 2 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 1 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.

Question 15

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

Answer 15

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 16

What are the Andrews and Cardozo views regarding the foreseeability of a plaintiff?

Answer 16

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.

Andrew’s (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 17

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

Answer 17

The plaintiff must prove that:

1. The accident was of a kind that ordinarily does not occur in the absence of negligence;
2. It was caused by an agent or instrumentality within the exclusive control of the defendant; and
3. It was not due to any action on the part of the plaintiff.

Question 18

What are the elements for strict products liability?

Answer 18

The plaintiff must plead and prove:

1. The product was defective;
2. The defect existed when it left the defendant’s control; AND
3. The defect caused the plaintiff’s injury when the product was used in a reasonably foreseeable way.

Question 19

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

Answer 19

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.

Question 20

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

Answer 20

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 21

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

Answer 21

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.

Question 22

When can a bystander outside the zone of danger recover for NIED?

Answer 22

1. Is closely related to the person injured by the defendant
2. Was present at the scene of the injury; and
3. Personally observed (or otherwise perceived) the injury.

Question 23

Name the three types of entrants to whom a possessor of land owe a duty and and the duty owed to each.

Answer 23

(1) Trespasser:

• 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.]

(2) Licensee:

• 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.)

(3) Invitee:

• 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 extent beyond the scope of the invitation, and the invitee is treated as a trespasser. 9s treated as a trespasser in areas beyond that scope.]

Question 24

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

Answer 24

The plaintiff must be confined within a limited area in which the plaintiff’s freedom of movement in all directions is contrained.

• The limited area may be laege and need not be stationary.
• A plaintiff may also be confined when compelled to move in a highly restricted way.

Question 25

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

Answer 25

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

Question 26

Defamation–Elements

Answer 26

(1) The defendant's defamatory language; (2) Is of or concerning the plaintiff; (3) Is published to a third party who understands its defamatory nature; AND (4) 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.

Question 27

What is the last clear chance doctrine?

Answer 27

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 28

Pure-Comparative Negligence

Answer 28

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 29

Partial (Modified) Comparative Negligence

Answer 29

* 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; * If the plaintiff is more at fault than the defendant: * The plaintiff’s recovery is barred, just as in a contributory-negligence jurisdiction; * 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.

Question 30

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

Answer 30

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.

Question 31

In what situations will an exculpatory provision not be enforced?

Answer 31

Courts will not enforce exculpatory provisions: * Disclaiming liability for reckless or wanton misconduct or gross negligence; * When there is a gross disparity of bargaining power between the parties; * 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; * If the exculpatory clause is subject to typical contractual defenses such as fraud or duress; OR * When it is against public policy to enforce agreements that insulate people from the consequences of their own negligence.

Question 32

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

Answer 32

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 33

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

Answer 33

The defendant may confine the plaintiff by the use of: 1. physical barriers; 2. physical force or restraint or the threat of physical force or restraint; 3. duress other than by threat of physical force or restraint; OR 4. by the assertion of legal authority

Question 34

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

Answer 34

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 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

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

Answer 36

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.

Question 37

When may someone use deadly force to defend property?

Answer 37

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 38

Battery–Elements

Answer 38

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 39

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

Answer 39

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 40

Conversion–Definition

Answer 40

1. The defendant intentionally commits an act; 2. Depriving the plaintiff of possession of her chattel or interfering with the plaintiff’s chattel; AND 3. In a manner so serious as to deprive the plaintiff of the use of the chattel.

Question 41

Trespass to Land–Definition

Answer 41

The defendant’s intentional act causes a physical invasion of the land of another. 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 42

When is a product defective?

Answer 42

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 43

Manufacturing Defect—Definition & Test

Answer 43

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 44

Design Defect—Definition & Test(s)

Answer 44

A defect in the design of the product Consumer Expectation Test: * unreasonably dangerous beyond the expectation of an ordinary user 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 45

Failure-to-Warn Defect—Definition

Answer 45

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 46

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

Answer 46

"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 47

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

Answer 47

* If he knows or has reason to know of the animal’s dangerous propensities; AND * The harm results from those dangerous propensities.

Question 48

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

Answer 48

(1) Assumption of Duty; (2) Placing Another in Peril; (3) Contract; (4) Authority; (5) Special Relationship; AND (6) Statutory Obligation

Question 49

Assumption of Duty–Affirmative Duty to Act

Answer 49

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.

Question 50

Placing Another in Peril—Affirmative Duty to Act

Answer 50

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

Question 51

Contract—Affirmative Duty to Act

Answer 51

There is a duty to perform contractual obligations with due care.

Question 52

Authority—Affirmative Duty to Act

Answer 52

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.

Question 53

Special Relationship—Affirmative Duty to Act

Answer 53

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.

Question 54

Statutory Obligation—Affirmative Duty to Act

Answer 54

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 55

False Imprisonment—Elements

Answer 55

(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 56

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

Answer 56

A plaintiff can recover for NIED from a defendant whose tortious conduct placed the plaintiff in harm’s way if she shows that: * She was within the “zone of danger” of the threatened physical impact (feared for his own safety); AND * The threat of physical impact caused emotional distress (usually via physical symptoms).

Question 57

What is the "eggshell plaintiff" rule?

Answer 57

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.