Torts

Question 1

Specific intent

Answer 1

When a tortfeasor intended to achieve a particular result by committing the crime/tort.

Question 2

General intent

Answer 2

When a person exhibits an actual intent to perform some act, but without a desire for the consequences that result from that act.

Question 3

Assault

Answer 3

Acting intentionally to give the plaintiff a reasonable apprehension of imminent harmful or offensive contact. Does not require contact, and punitive damages may be imposed if malice is present.

Question 4

Battery

Answer 4

Intentional, harmful or offensive contact with the plaintiff. Offensive is assessed by the reasonable person standard. Contact can include any items in the possession of or connected to the plaintiff.

(D is responsible for all harm to P including unforeseeable damages.)

Question 5

Intent

Answer 5

Proven by demonstrating a desire to cause the result, or knowledge to a substantial certainty that result would be caused.

Question 6

Intentional tort causation

Answer 6

Demonstrated where the defendant is a substantial factor in bringing about harmful or offensive contact.

Note the difference from the “but for” or foreseeability in torts.

Question 7

Trespass to land

Answer 7

Intentionally entering or causing an object or third person to enter land belonging to someone else. Eligible for nominal damages if there is no damage to the land.

Question 8

Trespass to chattel

Answer 8

A defendant will be liable when they intentionally interfere with the personal property of another, and there is insignificant damage to the chattel or a minor loss of usage.

Question 9

Conversion

Answer 9

If liable for a trespass to chattel but the amount of the interference is substantial, the tort of conversion has occurred. Here, the converter will be liable for the full market value of the chattel at the time of conversion, plus interest and expenditures made in pursuit of the property.

Question 10

Intentional infliction of emotional distress

Answer 10

When a defendant, intentionally or recklessly exhibited extreme and outrageous conduct which caused the plaintiff to suffer severe emotional distress. The defendant is liable to any family member also present (the defendant must be aware of their presence), or to any other person present if it results in physical harm.

Question 11

False imprisonment

Answer 11

Occurs when a defendant unlawfully intentionally confines a person in a bounded area and the person is either aware of or harmed by the confinement. The defendant has a privilege when reasonably believing the plaintiff committed a felony, where the shopkeeper privilege, or a citizen’s arrest defense may be appropriate.

Question 12

Consent

Answer 12

The defendant will not be found liable for a tort if they received a knowing and voluntary waiver of any harm caused by the tort.

Question 13

Defense of others

Answer 13

A defendant will not be found liable if using the right of self-defense for their own or other’s safety.

Question 14

Privilege to arrest

Answer 14

Defense to false imprisonment – usually applies when the defendant directly observed a felony. For a citizen’s misdemeanor arrest, it has to be (1) a breach of the peace; and (2) conducted in the presence of the arresting citizen.N

Question 15

Necessity

Answer 15

A defense if action is necessary to prevent harm to their own or another’s person or their real property. This defense comes in two types:

(1) Public necessity – if for the good of society damages will not be awarded.

(2) Private necessity – the defendant will not be liable for trespass, but liable for damage to plaintiff’s property.

Question 16

Shopkeeper privilege

Answer 16

A shopkeeper has the right to temporarily detain persons whom they have a reasonable belief shoplifted from their store. This privilege avoids false imprisonment.

Question 17

Attractive nuisance

Answer 17

An attractive nuisance creates liability for a landowner when a condition the owner knows or has reason to know attracts kids, the owner had or has reason to know the condition poses an unreasonable risk of death or serious injury to kids, children cannot appreciate the risk, and the utility to the landowner to maintain the condition vs the burden in fixing is slight.

Majority rule – the condition doesn’t need to attract, if kids see it after being on the land for other reasons then this doctrine is still applicable. Also, this doctrine does not apply to natural features of the property.

Question 18

Negligence

Answer 18

A claim for negligence can be made when a breach of duty of care to another has actually and proximately caused harm resulting in damages. This requires (1) a duty owed, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages.

(Requires personal injury or property damages, pure economic damages are not generally allowed.)

Question 19

Duty to whom

Answer 19

Under the majority Cardozo view, a duty of care is only owed to the foreseeable plaintiff within the zone of danger.

Under the minority Andrews view, a duty is owed to all foreseeable plaintiffs.

Question 20

Duty to assist

Answer 20

Generally, there is no duty to act to assist someone in danger. Exceptions exist where a pre-existing relationship exists, the defendant is responsible for putting the plaintiff in the danger, if a person began to assist and then quits (may dissuade subsequent Good Samaritans), or imposed by law.B

Question 21

Breach

Answer 21

A breach occurs when the defendant’s conduct does not meet the applicable standard of care.

Question 22

Actual causation

Answer 22

But for the defendant’s actions the plaintiff would not have suffered injury.

Question 23

Proximate causation

Answer 23

The injury must have been a foreseeable result of the defendant’s negligence.

Question 24

Standard of care

Answer 24

Every person owes a duty to act as a reasonable, prudent person under similar circumstances. Specific standards for children and professionals.

Children – Held to a standard of a child of similar age, experience, and intelligence acting under similar circumstances. Exception when engaged in adult activities, they are held to an adult standard of care.

Medical doctors – Held to the standard of an average age qualified practitioner, but a national standard.

Question 25

Landowner’s duty to undiscovered trespassers

Answer 25

No duty is generally owed.

Question 26

Landowner’s duty to anticipated trespassers

Answer 26

A landowner must make a reasonable effort not to harm while conducting operations on the property. They also must ensure they make safe, or at a minimum, warn anticipated trespassers of dangerous artificial conditions or equipment on the property.

Question 27

Landowner’s duty to licensees

Answer 27

An invitee as a social guest, a landowner has the same obligations as with anticipated trespasser.

Question 28

Landowner’s duty to invitees

Answer 28

Anyone on the property for the owner’s benefit – the same requirements of a licensee, plus conduct reasonable inspections and correct any latent dangerous conditions.

Question 29

Damages

Answer 29

Negligence requires personal injury or property damage. Claims for purely economic loss generally are not allowed.

Question 30

Negligence per se

Answer 30

Doctrine where a defendant who violates a statute or law is considered to have breached a duty. A violator is liable if they violate a law that is designed to prevent a certain type of harm and the plaintiff is the type of person the law was designed to protect. Exceptions exist when the statute is vague, the defendant exercised reasonable care or if the plaintiff was harmed than if the defendant complied with the law.

Question 31

Res ipsa loquitor

Answer 31

The doctrine of res ipsa loquitor may allow a plaintiff to prove their case on solely circumstantial evidence. To establish negligence in this case, a plaintiff must prove that the incident typically would not have happened without negligence, the instrumentality of the harm was solely under the defendant’s control, and the plaintiff did not contribute to the cause of harm.

Question 32

Negligence defenses

Answer 32

Include assumption of the risk, contributory negligence, partial comparative and contributory negligence.

Question 33

Last clear chance

Answer 33

A plaintiff can recover despite their own contributory negligence when the defendant had the last clear chance to avoid an accident. Even in a contributory negligence jurisdiction, the plaintiff may recover damages.

Question 34

Eggshell plaintiff rule

Answer 34

A defendant takes their victim as they find them and will be liable for all harm suffered by the plaintiff due to tortious conduct by the defendant.

Question 35

Intervening causes

Answer 35

An event that takes place after tortious conduct that worsens the plaintiff’s injury, but may not break the chain of causation between the defendant and the plaintiff if the injury is foreseeable.

Question 36

Superseding causes

Answer 36

A superseding cause is an act that is an unforeseeable and so unrelated to the tort that is serves as a defense to a negligence claim.

Question 37

Pure comparative negligence

Answer 37

The amount of fault assigned to the plaintiff will not bar recovery, however the amount of their damages will be reduced by the percentage of their own fault.

Question 38

Partial comparative negligence

Answer 38

If a plaintiff contributed 50% or less to their injury, then damages are reduced by their percentage of negligence. However, if they are 51% responsible, they recover nothing.

Question 39

Contributory negligence

Answer 39

Minority rule – a complete bar to recovery of damages, where if the plaintiff is found even 1% at fault, they are awarded nothing.

Question 40

Assumption of the risk

Answer 40

A defendant will not be found liable for negligence when the plaintiff knowingly and voluntarily assumed the risk.

Question 41

Fireman’s rule

Answer 41

Applies to police and fireman – these occupations may not sue for negligence in the performance of their duties because they assume the risk.

Question 42

Negligent infliction of emotional distress

Answer 42

Negligent infliction of emotional distress is a tort that comes in three types, (1) a zone of danger claim, (2) a bystander claim, and (3) a claim where a pre-existing relationship exists.

(This is a popular minor issue, and can typically be raised and dismissed, simply because the requirements for NIED bar many plaintiffs from recovery.)

Question 43

NIED – Zone of danger

Answer 43

Occurs when negligence by the defendant creates a foreseeable risk of injury. Here, the plaintiff must be in the zone of danger and the plaintiff has manifested physical symptoms.

Question 44

NIED – Pre-existing relationshup

Answer 44

Occurs when there is a pre-existing relationship between the plaintiff and the injured, and the negligent act can foreseeably cause distress. In this situation, physical injury is not a required element.

Question 45

Bystander claim

Answer 45

There must be negligence by defendant, the plaintiff must be a witness to the injury inflicted upon a close family member and the plaintiff must suffer some form of physical injury.

Question 46

Third party liability

Answer 46

Pure economic loss cannot be recovered by a third party.

Example: by injuring the lead actress in a car accident, a support actor who is fired because the movie is canceled cannot sue the negligent driver just for money.

Question 47

Vicarious liability

Answer 47

An employer is vicariously liable for an employee’s negligent acts if the employee was acting within the scope of their employment. Scope is determined by the type of work assigned to the employee and what event or action created the liability.

Question 48

Independent contractors

Answer 48

Contractors are not typically under the direct control of employers, and thus, they are liable for their own torts. To determine the nature of the contractor/employee, courts will look at the amount of control the employer has over the person, if pay was hourly or per job, who owns the tools, if the job was for the benefit of the employer’s business, and the length of time the employer worked for the contractor.

Question 49

Intentional torts of employee

Answer 49

An employer is typically not responsible for intentional torts committed by employees. If, however, the employee is directed to commit the act by the employer, or if the tort is a tort typically closely association to the performance of the duties, then the employer may be held vicariously liable.

Question 50

Defamation

Answer 50

Defamation requires (1) a false statement, (2) made of and concerning a plaintiff by the defendant, (3) that was published to a third party, and (4) damaged the plaintiff. The statement must be made as if it was a fact – a statement that is described as an opinion of the defendant is not defamation.

The claim is for libel if written, where damages are presumed due to the longstanding nature of the writing, and slander when spoken.

Damages must be proven, unless slander per se.

Question 51

Slander per se

Answer 51

Certain types of statements as so injurious that damages will be presumed, including statements that harm the work reputation of the plaintiff, a statement that an unmarried woman is unchaste, that the plaintiff suffers from a loathsome disease, or where the plaintiff has wrongly been accused of committing a crime of moral turpitude.

Question 52

Publication

Answer 52

Requires transmission to a third person, where a defendant will be liable unless the publisher was overheard, and it was not foreseeable.

Question 53

Defamatory statement

Answer 53

Language that diminishes respect, esteem, or goodwill towards a plaintiff, or deters others from associating with the plaintiff.

Question 54

Public figure

Answer 54

A public figure is one that is well known and earned some level of celebrity or notoriety, or if they have inserted themselves in a public concern.

Look out for the wife of a public person – she only needs to prove falsity, negligence, and damages.

Question 55

Public figure defamation standard

Answer 55

If the plaintiff is a public official, they must prove either fault or falsity. Falsity is established if the defendant knew the statement was false, and fault is established when the plaintiff can show defendant spoke with recklessness as to the truth of the statement. If the plaintiff is not a public official but speaking of a matter that is a public concern, plaintiff only needs to prove defendant spoke negligently.

Question 56

Absolute privilege

Answer 56

Provides immunity from a lawsuit for defamation even if the action is wrong, malicious or done with improper motive. These include spousal, judicial proceedings and legislative proceedings privilege.

Question 57

Privacy torts

Answer 57

• Misappropriation of name or likeness
• False light
• Intrusion into seclusion
• Public disclosure of private facts

Question 58

Misappropriation of name or likeness

Answer 58

Using the plaintiff’s name or image for commercial gain without consent. Exception exists if the name or likeness is used in the news coverage.

Question 59

False light

Answer 59

Publication of the plaintiff’s actions of beliefs in false light that would be highly objectionable to a reasonable person. Must show malice if a public person or a public concern. Can get damages for non-economic harm, and reputation need not be damaged.

Question 60

Intrusion into seclusion

Answer 60

Defendant intrudes into the plaintiff’s private matters, where the plaintiff has a reasonable expectation of privacy, and a reasonable person would be highly offended by the publication of such matters.

Question 61

Public disclosure of private facts

Answer 61

Defendant causes widespread dissemination of private facts that would be highly objectionable to a reasonably prudent person.

Question 62

Public nuisance

Answer 62

Occurs when there is an unreasonable interference with the public’s property rights, health or safety.

(Usually prosecuted by public authorities – a private plaintiff can only sue if they show they suffered some harm different than that of the rest of the public.)

Question 63

Private nuisance

Answer 63

Occurs when there is a significant interference with a person’s use or enjoyment of their real property. The nuisance must not be small – it must be significantly inconvenient, harassing, or annoying to a reasonable person.

(The defense of coming to the nuisance is appropriate when the plaintiff purposely moved to the area to sue the party creating the nuisance.)

Question 64

Strict liability for wild animals

Answer 64

For domestic animals – no liability unless defendant knew of the animal’s vicarious propensities. For wild animals, an owner will be held strictly liable for injuries caused by the animal’s known dangerous propensities.

Question 65

Strict liability for abnormally dangerous activities

Answer 65

A tort where liability is assigned without a finding of fault. An abnormally dangerous activity is one that is not of common usage in the community and is dangerous even when reasonable care is exercised by all actors. The harm must be of the type that makes the activity abnormally dangerous, and the danger must be greater than the activity’s value in the community.

(Once established, proceed through negligence elements. Vicarious liability is not applicable. Defense – assumption of the risk)

Question 66

Products liability claims

Answer 66

May be deemed to exist under five theories: (1) intent, (2) negligence, (3) strict liability, (4) implied warranty, and (5) express warranty, and (6) misrepresentation.

Question 67

Strict products liability

Answer 67

A prima facie case for strict products liability requires (1) a strict duty owed by a commercial supplied (include proper plaintiff discussion), (2) breach, (3) causation (actual and proximate), and (4) damages.

Recovery strictly for economic loss is not allowed. Assumption of the risk is the only defense.

Question 68

Strict products liability causation

Answer 68

Actual causation requires that the plaintiff tract the harm to a defect that existed when the product left the defendant’s control.

(NOTE: this is different than negligence causation)

Question 69

Breach in strict products liability

Answer 69

A breach of duty occurs when the product was defective (manufacturing defect, design defect, or failure to warn) when it left the hands of the manufacturer or seller, the product was not altered by an intermediary prior to acceptance by the plaintiff, the defect in the product caused an injury to the plaintiff and the supplier is a merchant for this type of good.

(Know that is doesn’t matter if the product is used as directed, and know that even if misused in a foreseeable manner, the supplier will still be found strictly liable.)

Question 70

Manufacturing defect

Answer 70

The product differs from other products leaving the production line and is more dangerous than if it were made properly.

Question 71

Design defect

Answer 71

Exists if the design itself is faulty, and every product that leaves the line has the same dangerous issue. This can also be proven if there is a way to make the product at a similar cost that does not have the same dangerous propensity.

Question 72

Failure to warn

Answer 72

Occurs when the plaintiff was not warned of the risks of use that were not obvious to an ordinary user but known to the designer/manufacturer. A warning must be proportionate to the risk involved with the normal use of the product.

Question 73

Consumer expectation test

Answer 73

A product is defective if it does not meet the expectations of an average consumer.

(Use to determine a design defect.)

Question 74

Feasible alternative test

Answer 74

This test requires a search of the marketplace for feasible alternatives. If they are found at similar cost, then a design defect exists.

(Use with the consumer expectation test)`

Question 75

Risk/utility test

Answer 75

A product is defective if the burden to make the product safe is slight compared to the harm that will occur.

(Use with the consumer expectation test, analyze both to determine the presence of a design defect)

Question 76

Government safety compliance

Answer 76

Non-compliance with a government safety standard establishes defect. However, compliance does not establish that the product is not defective.

Question 77

Product liability – negligence

Answer 77

A negligence claim based on a defective product requires a duty, a breach, causation (actual and proximate cause), and damages.

A breach will be found when a supplier’s negligence results in the supply of a defective product. Suppliers are liable for all foreseeable misuse of their product. Any manufacturer or seller may be liable, but it must be shown that their conduct was negligent. Personal injury and property damages are recoverable, but not solely economic loss.

Question 78

Duty in a negligent products liability action

Answer 78

A duty of care is owed by commercial suppliers, such as manufacturers, wholesalers, and retailers to any foreseeable plaintiff, such as users, buyers, and bystanders, without any privity requirement.

Question 79

Breach in negligent products liability

Answer 79

To prove a breach of duty, the plaintiff must show negligent conduct by the defendant leading to the supply of the defective product.

Question 80

Implied warranty of merchantability

Answer 80

All goods sold by a merchant (a person dealing in goods of this kind) must be fit for their ordinary purpose.

Question 81

Implied warranty of fitness for a particular purpose

Answer 81

All products are purchased with an implied warranty of fitness for a particular purpose, which is breached when the seller knows or has reason to know of the buyer’s purpose for the product and the buyer relies on the seller’s judgment to provide the proper product for the buyer’s usage.

(Note: analysis requires a full negligence analysis of DBCD and defenses)

Question 82

Duty – Implied warranty of fitness for a particular purpose

Answer 82

In every sale of goods, there are two implied warranties: (1) merchantability, and (2) fitness for a particular purpose. Majority view is that privity is not required.

Question 83

Breach – Implied warranty of fitness for a particular purpose

Answer 83

Occurs if a product fails to live up to these warranties

Question 84

Causation – Implied warranty of fitness for a particular purpose

Answer 84

Same as in negligence

Question 85

Damages – Implied warranty of fitness for a particular purpose

Answer 85

Personal injury, property, and purely economic damages are recoverable

Question 86

Defenses – Implied warranty of fitness for a particular purpose

Answer 86

Assumption of the risk, contributory/comparative negligence

Question 87

Express warranty

Answer 87

Exists when a seller makes a deliberate promise to warranty, or a description of the product, or provides a sample relating to the product, and that warranty factors into the decision to purchase the product.

Question 88

Misrepresentation in product liability

Answer 88

A merchant is strictly liable for any harm to consumers when they knowingly or with reckless disregard misrepresent their product.

Question 89

Abuse of process

Answer 89

Wrongful use of legal process for the ulterior purpose, or an act or threat to accomplish the same.

Question 90

Negligent hiring

Answer 90

An employer may be found liable when they fail to exercise reasonable care in choosing an employee to perform specific duties.