Torts

Question 1

Prima Facie Case for Intentional Torts

Answer 1

All intentional torts require an act by the defendant, intent by the defendant to bring about some physical or mental effect upon another person, and the effect must have been legally caused by the defendant’s act or set in motion by the defendant.

Question 2

Transferred Intent

Answer 2

Transferred intent will provide the requisite intent when the defendant held the necessary intent with respect to one person but instead commits a different tort against that person or any other person, or commits the intended tort against a different person.

Note - transferred intent cannot be invoked with intentional torts of IIED or converstion

Question 3

Causation

Answer 3

Causation is the effect legally caused by the defendant’s act or some action that is set in motion by the defendant.

Question 4

Intent

Answer 4

Intent can be achieved by either direct intent when the defendant has a desire or purpose to bring about the effect, or indirectly when the defendant knows with substantial certainty that a particular effect will occur.

Question 5

Specific vs General Intent

Answer 5

Specific intent = when a tortfeasor intended to achieve a particular result by committing the crime/tort
General intent = when a person exhibits an actual intent to perform some act, but without a desire for the consequences that result from that act

Question 6

Battery

Answer 6

Battery is an intentional infliction of harmful or offensive bodily contact.

1. Intent can be desire/purpose or knowledge with substantial certainty
2. Harmful touching encompasses touching that causes pain or bodily damage; offensive touching is that which offends a reasonable person’s sense of dignity
3. Contact can be direct or indirect and includes contact with an object closely identified with the plaintiff’s body

Question 7

Assault

Answer 7

Assault is the intentional causing of an apprehension of an imminent bodily harm or offensive contact.

1. Intent can be desire/purpose or knowledge with substantial certainty
2. Causing apprehension of means the plaintiff must be aware of the threat
3. Imminent means the defendant must have the apparent present ability to carry out the threat
4. Harmful contact encompasses touching that causes pain or bodily damage; offensive touching is that which offends a reasonable person’s sense of dignity

Question 8

Intentional Infliction of Emotional distress

Answer 8

IIED is the intentional or reckless infliction of severe emotional or mental distress caused by the defendant’s extreme and outrageous conduct.

1. Intent can be satisfied with desire/purpose, knowledge with substantial certainty, or reckless disregard
2. The plaintiff must suffer severe emotional distress, though bodily harm is not required
3. Extreme and outrageous conduct is that which is beyond the bounds of human decency

Question 9

Third-Person Liability for IIED

Answer 9

Third-person liability for IIED occurs where the defendant intentionally or recklessly directs extreme and outrageous conduct at someone other than the plaintiff, but the plaintiff can recover for IIED. The defendant will be liable to any close relative also present (the defendant must be aware of their presence), or anyone else present who suffers a physical harm as a result of the emotional distress (e.g., heart attack).

Question 10

False Imprisonment

Answer 10

False imprisonment occurs where the defendant intentionally causes the plaintiff to be confined, restrained, or detained to a bounded area with no reasonable means of escape, of which the plaintiff is either aware of or harmed.

1. Intent can be either desire/purpose or with knowledge of substantial certainty
2. Confined, restrained, or detained
3. Bounded area
4. No reasonable means of escape
5. Plaintiff must be aware of the confinement or harmed by it

Question 11

Trespass to Land

Answer 11

Trespass to land is the intentional physical invasion of the land of another.

1. Intent can be satisfied by desire/purpose; invading land of another thinking its your own is no defense
2. Physical invasion does not require the land be harmed and can include placing or projecting an object onto someone else’s land without permission
3. Real property of another

Question 11

Trespass to Chattels

Answer 11

Trespass to chattels is an intentional interference with a person’s use or possession of a chattel.

1. Intent can be satisfied with desire/purpose; mistake that you own the chattel is no defense
2. Interference with use or possession
3. Chattel = personal property
4. Measure of damages is chattel’s loss of value caused by loss of use

Question 12

Conversion

Answer 12

Conversion is an intentional interference with the plaintiff’s possession or ownership of property that is so substantial it warrants requiring the defendant to pay the property’s full market value.

1. Intent can be satisfied with desire/purpose; mistake of ownership not an excuse
2. Substantial interference includes takes possession, transfers possession, refuses to return/destroys a chattel
3. Chattel is personal property
4. Damages is full market value at time of conversion

Question 13

Name the Intentional Torts

Answer 13

Battery, Assault, Trespass to Land/Chattels, IIED, False Imprisonment

Question 14

Name the Defenses to Intentional Torts

Answer 14

Consent, Self-Defense, Defense of Others, Defense of Property, Recapture of Chattels, Shopkeeper’s Privilege, Necessity

Question 15

Consent

Answer 15

Plaintiff consents to the defendant’s conduct. Consent can be express or implied.

Question 16

Self-Defense

Answer 16

A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact or any threatened confinement or imprisonment.

Question 17

Defense of Others

Answer 17

A person may use reasonable force to defend another person when he reasonably believes that person would be entitled to defend himself.

Question 18

Defense of Property

Answer 18

A person may use reasonable force to defend his real or personal property. The defendant must first make a verbal warning unless it would be futile or dangerous.

Question 19

Recapture of Chattels

Answer 19

A property owner has the general right to use reasonable force to regain possession of chattels taken by someone else. The property owner must be in fresh pursuit, and deadly force is never allowed.

Question 20

Shopkeeper’s Privilege

Answer 20

Shopkeepers have a privilege to temporarily detain individuals whom they reasonably believe are in possession of shoplifted goods.

Question 21

Necessity

Answer 21

A person may interfere with the real or personal property of another when it is reasonably and apparently necessary to prevent great harm.

Public necessity applies when the threatened harm was to the community at large, and no compensation for damage is owed.

Private necessity applies when a person acts to prevent injury to himself or his property, and compensation for actual damages is owed.

Question 22

Negligence

Answer 22

Negligence requires a showing of duty, breach, actual and proximate cause, and damages.

Headings:
Duty
Breach
Actual Cause
Proximate Cause
Damages

Question 22

Duty (Negligence)

Answer 22

Foreseeable Plaintiff
A duty is owed to all foreseeable plaintiffs. Under the majority rule, a foreseeable plaintiff is one who is in the zone of danger. Under the minority view, a defendant owes a duty to everyone, including unforeseeable plaintiffs.

Standard of Care - RPP
A person has a duty to act as a reasonably prudent person under the circumstances, unless a special duty of care applies.

Note - if another standard of care applies, such as negligence per se, professionals, children, landowner, etc. they are their own heading under Duty

Question 23

SOC - Negligence Per Se

Answer 23

A statute may set forth the applicable standard of care. In order for an individual to be held to the standard of care set forth in a statute, there must be a statute mandating a specific duty, the plaintiff must prove they are within the class of persons the statute is designed to protect, and they suffered the type of injury the statute seeks to protect against. *Protected Person* *Protected Injury* ## Footnote Remember, negligence per se only establishes duty and breach (plaintiff must still prove causation and damages); compliance with a statute does not itself establish the defendant was not negligent

Question 24

SOC - Professionals

Answer 24

Professionals are required to possess the knowledge and skill of a member in their profession and occupation in good standing.

Question 25

SOC - Children

Answer 25

Children have a duty to conform to the conduct of a child of like age, intelligence, and experience, unless engaged in an adult activity.

Question 26

SOC - Land Owner

Answer 26

The standard of care for a landowner depends on whether the plaintiff is a trespasser, invitee, or licensee.

Question 27

Attractive Nuisance Doctrine

Answer 27

A landowner must exercise ordinary care to avoid foreseeable injury to children if: 1. the owner knew or should have known that the area is one where children trespass; 2. the condition poses an unreasonable risk of death or serious injury; 3. the children do not discover the risk due to their youth; 4. the benefit to the owner and expense to remedy the condition is slight compared to the risk; and 5. the owner fails to use reasonable care to eliminate the danger.

Question 28

Trespassers (SOC - Landowner)

Answer 28

A landowner generally owes no duty to make the land safe or warn of dangerous conditions to undiscovered trespassers or invitees/licensees that go beyond the scope of their invitation. However, there is a duty to warn known or frequent trespassers of **known dangers** and artificial conditions that pose a risk of death or serious bodily harm.

Question 29

Invitee (SOC - Landowner)

Answer 29

An invitee is one who enters the land in response to an invitation by the owner to do business with the owner or as a public invitee for land open to the public at large. The owner has a duty to reasonably inspect for hidden dangers and take affirmative action to remedy a dangerous condition by making repairs.

Question 30

Licensee (SOC - Landowner)

Answer 30

A licensee is one who enters the land with the owner's consent for his own purpose. An owner has a duty to warn of all known dangerous conditions that create an unreasonable risk of harm that the licensee is unlikely to discover; however, there is no duty to repair or inspect.

Question 31

SOC - Landlord-Tenant

Answer 31

A tenant has a general duty to maintain the premises and must abide by the same duties owed as land owners. In addition to the duties owed by a landowner, a landlord must also warn of existing dangers which he knows or should know that the tenant is not likely to discover, make repairs not negligently, and maintain common areas.

Question 32

Breach (Negligence)

Answer 32

A breach occurs when the defendant falls below the applicable standard of care. Courts often use a balancing test to determine if the unreasonableness of the risk outweighs the utility of the act (risk-utility).

Question 33

Res Ispa Loquitor

Answer 33

Res ipsa loquitur can be used to establish breach of duty in situations where the event transpiring creates an inference the defendant was probably negligent because i) the accident is a type that ordinarily does not occur in the absence of negligence and ii) other causes are sufficiently eliminated by evidence the defendant had exclusive control.

Question 34

Actual Cause (Negligence)

Answer 34

The defendant is the actual cause of the plaintiff's injuries if the injury would not have occurred **but-for** the act. *If multiple fault causes harm...* 1. Where there are two acts, only one of which could have caused the injury, but it is unknown which caused the injury, the burden of proof shifts to each defendant to show that the other caused the harm. 2. Where two or more defendants are at fault and their conduct combines to cause the harm to the plaintiff, they will be jointly and severally liable as their actions were each a **substantial factor** in causing the injury.

Question 35

Proximate Cause (Negligence)

Answer 35

The defendant is also the proximate cause of the plaintiff's injuries if the injury was reasonably foreseeable. Exception - *Eggshell Plaintiff* The defendant is liable for any additional unforeseen physical consequences to the plaintiff caused by plaintiff's weakness or susceptibility because the defendant takes the plaintiff as he finds him.

Question 36

Intervening Causes (Proximate Cause)

Answer 36

A defendant is liable for all foreseeable intervening causes, which are those take take place after tortious conduct and worsen the plaintiff's injury. ## Footnote E.g., medical malpractice, negligent rescue

Question 37

Superseding Causes (Proximate Cause)

Answer 37

A defendant is generally not liable for superseding causes, which are acts that are not a reasonably foreseeable consequence of the defendant's actions.

Question 38

Damages (Negligence)

Answer 38

Damages require an actual injury to the plaintiff. Nominal damages are not available. The plaintiff may recover for direct loss, out-of-pocket economic losses stemming from the injury, pain and suffering, and hedonistic damages (loss of enjoyment of life).

Question 39

Negligent Infliction of Emotional Distress (NEID)

Answer 39

The defendant is liable for NEID when they engage in negligent conduct that causes the plaintiff to suffer serious emotional distress. There are three kinds of NEID - zone of danger, bystander recovery, and special relationship.

Question 40

Zone of Danger (NEID)

Answer 40

A plaintiff can recover for NEID from a defendant whose tortious conduct placed the plaintiff in harm’s way if the plaintiff demonstrates that: i) He was within the “zone of danger” of the threatened physical impact—that he feared for his own safety because of the defendant’s negligence; and ii) The threat of physical impact caused emotional distress. The majority rule requires a physical manifestation of emotional distress (e.g., nightmares).

Question 41

Bystander Recovery (NEID)

Answer 41

Most states allow a bystander plaintiff outside the zone of danger to recover for emotional distress if that 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. As with zone of danger, the majority rule requires physical manifestation of symptoms.

Question 42

Special Relationship (NEID)

Answer 42

The duty to avoid NEID exists without any threat of physical impact or physical symptoms in cases in which there is a special relationship between the plaintiff and the defendant. ## Footnote The most common examples are a mortician mishandling a corpse or a common carrier mistakenly reporting the death of a relative.

Question 43

Name the Defenses to Negligence

Answer 43

Contributory Negligence, Comparative Negligence, Assumption of the Risk

Question 44

Contributory Negligence

Answer 44

Contributory negligence will bar recovery if the plaintiff is found negligent even in the slightest amount. This has been abolished in most jurisdictions.

Question 45

Comparative Negligence

Answer 45

Comparative negligence applies when the plaintiff's own negligence also contributed to his injuries, but does not completely bar recovery. In pure comparative negligence, the liability is divided between the plaintiff and defendant in proportion to their relative degrees of fault and damages are reduced accordingly.

Question 46

Assumption of the Risk

Answer 46

A plaintiff may be denied recovery if he assumed the risk of any damage caused by the defendant's act where he know of the risk and voluntarily consented despite the risk.

Question 47

Modified Comparative Negligence

Answer 47

Modified comparative negligence bars the plaintiff's recovery if he is found more negligent than the defendant.

Question 48

Strict Liability for Animals

Answer 48

An owner is strictly liable for: 1. Reasonably foreseeable damage done by the trespass of his animals; 2. Injuries caused by wild animals that result from a dangerous propensity typical of the species; and 3. Injuries caused by domestic animals if the owner knew or had reason to know of that particular animal's dangerous propensities.

Question 49

Strict Liability for Abnormally Dangerous Activities

Answer 49

An abnormally dangerous activity is one that creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised and the activity is not commonly engaged in.

Question 50

Strict Products Liability (SPL)

Answer 50

A seller of a product is liable without fault for injuries caused by a defective product. The plaintiff must prove the following elements: commercial supplier, defective product, actual cause, proximate cause, and damages.

Question 51

Commercial Supplier (SPL)

Answer 51

A commercial supplier is one who places a product in the stream of commerce without substantial alteration. A commercial supplier includes retailers, distributors, and manufacturers.

Question 52

Defective Product (SPL)

Answer 52

A product may be found defective in three ways: manufacturing defect, design defect, or warning defect.

Question 53

Manufacturing Defect (SPL)

Answer 53

A manufacturing defect exists when a particular product was not manufactured as intended.

Question 54

Design Defect (SPL)

Answer 54

A design defect exists when the product design itself is faulty. Courts use one of two tests to establish a design defect: *Consumer Expectation Test* A product is defective if it does not meet the expectations of an average consumer when used in a reasonably foreseeable manner. *Risk-Utility Test* A product is defective if the risk of danger inherent in the design outweighs the benefits of such a design and the danger could have been avoided or reduced by adoption of a reasonable, cost-effective alternative design.

Question 55

Compliance with Safety Standards (SPL)

Answer 55

Non-compliance with a government standard establishes a defect; however, compliance with the standard is not conclusive that a product is not defective. Similarly, non-compliance with an industry standard can show there is a defect, but compliance with standards is not dispositive that a product is not defective.

Question 56

Actual Cause (SPL)

Answer 56

The plaintiff must show that but-for the defect, he would not have been injured **and** that the defect existed at the time it left the defendant's control.

Question 57

Proximate Cause (SPL)

Answer 57

The plaintiff must also show the defendant was the proximate cause of their injuries. The defendant is the proximate cause of the plaintiff's injuries if the injury was reasonably foreseeable.

Question 58

Failure to Warn (SPL)

Answer 58

A warning defect exists when the maker fails to give adequate warnings as to a known danger (or danger they should have known about) in the particular product or use of the product that is not obvious. A court may use the risk-utility test to determine if the risk could have been reduced or avoided with reasonable instructions/warnings.

Question 59

Damages (SPL)

Answer 59

A plaintiff must show physical injury or property damage. There is no recovery for pure economic loss.

Question 60

Defenses to SPL

Answer 60

Contributory negligence for product misuse may be a defense depending on the jurisdiction, but won't apply if the plaintiff's negligence or misuse was foreseeable. Assumption of the risk is also a defense.

Question 61

Steps for SPL Analysis

Answer 61

STEP ONE - Strict Products Liability Analysis STEP TWO - Negligence Analysis* * (causation/damages/defenses = see above) STEP THREE - Warranties ## Footnote *Note that retailers and distributors are rarely liable under negligence because they only have a duty to inspect or warn of known dangers, a manufacturer would likely still be liable under negligence theory

Question 62

Warranties (SPL)

Answer 62

An **express warranty** is any statement of fact or promise concerning goods. The plaintiff need only show that the product did not live up to its warranty to establish breach. An **implied warranty of merchantability** exists in every sale of goods, warranting that they are fit for the ordinary purposes for which the goods are used. An **implied warranty of fitness for a particular purpose** is implicated in every sale of goods where the seller knows or has reason to know that the buyer wants the goods for a particular purpose and the buyer relies on the seller's judgment to recommend a suitable product.

Question 63

Misrepresentation in SPL

Answer 63

A merchant is strictly liable for any harm to consumers when they knowingly or with reckless disregard misrepresent their product. This misrepresentation must be made with intent that the user will rely on such misrepresentation in the purchase and use of the product.

Question 64

Fraud

Answer 64

Intentional misrepresentation is common law fraud or deceit. The plaintiff must show: 1. misrepresentation of a material fact; 2. scienter (knowledge the statement is false/reckless disregard for its truth); 3. intent to induce the plaintiff's reliance; 4. causation; 5. reliance by plaintiff was justified; and 6. pecuniary damages

Question 65

Negligent Misrepresentation

Answer 65

Negligent misrepresentation requires establishing: 1. misrepresentation by the defendant in a business or professional capacity; 2. the defendant had no reason to believe the misrepresentation was true; 3. intent to induce the plaintiff's reliance; 4. causation; 5. justifiable reliance by the plaintiff; and 6. pecuniary damages

Question 66

Private Nuisance

Answer 66

A private nuisance is a substantial, unreasonable interference with another person's use or enjoyment of his land in which he has an interest. A substantial interference is one that is offensive, inconvenient, or annoying to the average person in the community. The interference is unreasonable if either the harm to the plaintiff outweighs the utility of the defendant's conduct or the harm is greater than the plaintiff should be required to bear without consideration.

Question 67

Public Nuisance

Answer 67

A public nuisance is a substantial, unreasonable interference with the health, morals, welfare, safety, or property rights of the community. Courts consider factors in establishing harm to the community including the location of the nuisance, the frequency and duration, degree of damage, and social value. Recovery by a **private party** is only available if the private party suffered a harm different in kind (not merely degree) than that suffered by the public.

Question 68

Defamation

Answer 68

Defamation requires a defamatory statement, made of and concerning the plaintiff by the defendant, that was published to a third party, and caused damage to the plaintiffs reputation.

Question 69

Defamatory Statement (Defamation)

Answer 69

A defamatory statement is a false statement that holds the plaintiff to contempt or public ridicule. Pure opinions and true statements are not defamatory.

Question 70

Of and Concerning (Defamation)

Answer 70

The plaintiff must be identifiable.

Question 71

Publication to a Third Party (Defamation)

Answer 71

The publication must be made to a third party, and the third party must understand the statement. The publication can be made **intentionally** or **negligently,** and repeaters of defamatory statements can also be liable.

Question 72

Harm to Reputation (Defamation)

Answer 72

The statement need not have actually harmed the plaintiff's reputation, but the plaintiff must show that it would have had it been believed.

Question 73

Damages (Defamation)

Answer 73

Damages depend on the type of defamation. If the defamatory statement was written/printed, it is libel, and the plaintiff does not need to prove special damages; general damages are presumed. If the statement was spoken, it is slander, and the plaintiff must prove special damages, which means the plaintiff suffered some pecuniary loss as a result of the slander.

Question 74

Slander Per Se (Defamation)

Answer 74

Damages are presumed for slander per se. Slander per se is established for statements that adversely reflect on the plaintiff's fitness to conduct his business or profession, alleges the plaintiff has a loathsome disease, imputes morally culpable criminal behavior on to the plaintiff, or imputes sexual misconduct to the plaintiff.

Question 75

Public Figure (Defamation)

Answer 75

A plaintiff is a public figure when he has achieved pervasive fame or notoriety or voluntarily assumed a role in a public controversy. When the plaintiff in a defamation claim is a public figure, they must prove actual malice. Actual malice exists when the defendant made the statement with 1) either knowledge that it was false, or 2) reckless disregard as to whether it was true or false. Damages are **presumed** if actual malice is shown.

Question 76

Defenses to Defamation

Answer 76

Consent, truth, absolute privilege (remarks made during judicial/legislative proceedings, government officials, or between spouses)

Question 77

Misappropriation

Answer 77

Misappropriation is the unauthorized use of the plaintiff's picture or name for the defendant's commercial advantage.

Question 78

Intrusion Upon Seclusion

Answer 78

Intrusion upon seclusion is the intrusion into a plaintiff's private affairs, where one has a reasonable expectation of privacy, that is highly objectionable.

Question 79

False Light

Answer 79

False light occurs when one attributes to the plaintiff views he does not hold or actions he does not take, the false light is objectionable to a reasonable person under the circumstances, and the publication is public. Malice must be shown for public figure.

Question 80

Abuse of Process

Answer 80

Abuse of process occurs when the defendant intentionally misuses a legal process for an ulterior purpose and the defendant committed a willful act in a wrongful manner that caused damage to the plaintiff.

Question 81

Negligent Hiring

Answer 81

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

Question 82

Vicarious Liability

Answer 82

An employer is vicariously liable for the negligent acts of their employee if the employee was acting within the scope of their employment.