Torts

Question 1

mental state for intentional torts

Answer 1

purposeful, or knows consequence is substantially certain

reckless for IIED

Question 2

single v dual intent for battery

Answer 2

single: D intends to bring the contact only

double: D intends to bring contact and intends it to b harmful or offensive

Question 3

offensive standard for battery

Answer 3

objective reasonable person

subjective: D knows it will be highly offensive

Question 4

elements of battery

Answer 4

1. D intends to cause contact with P’s person
2. D’s conduct causes contact
3. Harmful or offensive touching occurs

Question 5

elements of assault

Answer 5

D’s intends to cause P to anticipate
imminent
harmful
offensive contact

Question 6

IIED

Answer 6

by extreme and outrageous conduct, intentionally or recklessly causes P to suffer severe emotional distress

intent can transfer between people but not between intentional torts

Question 7

what kind of conduct for IIED

Answer 7

extreme and outrageous - beyond human decency

Question 8

special IIED rule for celebs

Answer 8

public figures must show falsity and actual malice

private P can’t recover if issue was of public concern

Question 9

who is owed a duty

Answer 9

• all foreseeable plaintiffs
• majority Cardozo: plaintiffs within zone of foreseeable harm
• minority: anyone who is harmed

Question 10

modern rule for possessors of land’s duty

Answer 10

must exercise reasonable care under the circumstances to all land entrants except trespassers

Question 11

traditional approach for land possessor standard of care

Answer 11

trespasser: refrain from willful wanton reckless intentional misconduct

invitee: inspect and discover unreasonably dangerous conditions, warn

licensee: warn of known hidden dangers and use reasonable care

Question 12

elements of attractive nuisance

Answer 12

1. artificial condition in place owner knows kids are likely to trespass
2. unreasonable risk of serious bodily injury
3. kids can’t appreciate danger due to youth
4. burden of eliminating danger is slight compared with risk
5. land possessor fails to exercise reasonable care to protect kids

Question 13

modern factors for determining breach (cost benefit)

Answer 13

1. forseeability of harm
2. severity of harm
3. burden of D to prevent harm

Question 14

res ipsa. plaintiff must prove that

Answer 14

1. type of accident wouldn’t occur without negligence
2. injury was caused by something in exclusive control of D
3. injury was plaintiff’s fault

Question 15

what does negligence per se do

Answer 15

changes the duty for the negligence analysis

plaintiff must still be in class of persons

plaintiff must suffer type of harm

violation must be proximate cause

Question 16

actual cause

Answer 16

plaintiff must show that but for D’s actions, wouldn’t have happened

Question 17

substantial factor rule for ACTUAL

Answer 17

when multiple causes of harm and each alone woulda done it

conduct of each D is actual cause if it was a substantial cause

Question 18

alternative causation for ACTUAL

Answer 18

when p’s harm is caused by multiple tortfeasors and each was individually bad

burden of proof shifts to defendants to prove each was not the cause in fact

Question 19

proximate cause

Answer 19

plaintiff must show injury was FORSEEABLE result of D’s conduct

Question 20

intervening cause for PROXIMATE

Answer 20

outside force that happens after

if foreseeable – will not cut of D’s liability

if not foreseeable – will cut off D’s liability

Question 21

types of negligent infliction of emotional distress

Answer 21

zone of danger

bystander

Question 22

zone of danger for NIED

Answer 22

1. plaintiff was within zone of danger of physical impact
2. physical manifestation of emotional distress

Question 23

bystander for NIED

Answer 23

outside zone of danger but

1. is closely related to person harmed
2. was at scene
3. personally observed
4. physical manifestation of emotional distress

Question 24

Defenses to negligence

Answer 24

1. contributory negligence
2. comparative fault
3. assumption of the risk

Question 25

contributory negligence (old rule)

Answer 25

if p contributed -- NO DICE

Question 26

comparative fault (modern)

Answer 26

Pure comparative: P's recovery reduced by % he was at fault Modified (majority): P's recovery is reduced by % he was at fault. If P is MORE at fault than D, NO DICE

Question 27

what is an abnormally dangerous activity

Answer 27

high risk of harm, not commonly found in community, has risk that can't be eliminated with due care explosives, fumigation, hazardous waste, chemical storage

Question 28

how does strict liability change analysis

Answer 28

replaces the duty/breach element still must show all others

Question 29

who is liable for strict products liability

Answer 29

defendant in business of selling commercial product

Question 30

types of product defect

Answer 30

1. manufacturing defect 2. design defect 3. warning defect

Question 31

manufacturing defect

Answer 31

deviation from what manufacturer intended that causes harm to plaintiff test: whether product conforms to D's own specs

Question 32

design defect

Answer 32

consumer expectation test: P must prove dangerous beyond expectation of normal customer risk utility test: P must prove a reasonable alternative design that is economically feasible was available and failure to use that design rendered product unreasonably dangersou

Question 33

failure to warn

Answer 33

foreseeable risk of harm, not obvious to ordinary user, warning would have reduced or avoided it

Question 34

actual and proximate cause for products liability

Answer 34

actual: product was defective when left D's control and was but for cause proximate: product was used in foreseeable way, misuse ok if forseeable

Question 35

negligent products liability

Answer 35

same as a negligence analysis, always do after talking about SPL

Question 36

types of warranties

Answer 36

express implied warranty of merchantability implied warranty of fitness for particular purpose

Question 37

element of defamation

Answer 37

1. language is about the P 2. published to 3rd party who understands defamatory nature and 3. damages P's reputation

Question 38

damages for damage to P's reputation

Answer 38

libel (written) - general damages presumed slander (oral) - damages not presumed slander per se - damages presumed when involved professional, disease, moral, unchaste

Question 39

constitutional defamation elements

Answer 39

1. plaintiff is public figure: must show false and malice 2. plaintiff is private but matter is public: must show negligence or malice malice = knew it was false or acted with reckless disregard to truth

Question 40

damages for public figures defamation or private with public matter

Answer 40

public - must show actual damage private - can do punitive

Question 41

defamation defenses

Answer 41

1. truth 2. consent 3. absolute privilege 4. qualified privilege

Question 42

invasion of privacy torts

Answer 42

1. misappropriation 2. intrusion upon seclusion 3. false light 4. public disclosure of private facts

Question 43

misappropriation

Answer 43

unauthorized use of NLI for D's own advantage

Question 44

intrusion upon seclusion

Answer 44

D's acts of intrusion into P's private affairs are objectionable to a reasonable person

Question 45

false light

Answer 45

P must show D published facts about P or attributed views to him that placed him in false light and are highly offensive to reasonable person

Question 46

public disclosure of private facts

Answer 46

actionable if publication would be highly offensive to reasonable person and is not of legit concern to public

Question 47

false imprisonment

Answer 47

1) Intent 2) Confinement 3) Without lawful privilege 4) Against consent 5) Within a limited area 6) Any appreciable amount of time, however short plaintiff must be aware or suffer actual harm

Question 48

trespass to chattels

Answer 48

interference with plaintiff's possession of personal property must intend to perform act that interferes, causation, damages

Question 49

conversion

Answer 49

requires SERIOUS interference with plaintiff's possession of her property no transferred intent

Question 50

trespass to land

Answer 50

physical invasion of another's land and intent to enter land

Question 51

private necessity as defense for trespass to land

Answer 51

not liable for trespass but yes for actual damages

Question 52

public necessity as defense for trespass to land

Answer 52

not liable if actions were reasonable, or reasonable belief

Question 53

private nuisance

Answer 53

substantial (offensive to reasonable person) and unreasonable (balance interests) interference with another's use and enjoyment of his land

Question 54

public nuisance

Answer 54

unreasonable interference with right common to general public can only bring as private citizen if you are uniquely hurt

Question 55

defenses to nuisance

Answer 55

regulatory compliance is partial defense coming to the nuisance

Question 56

abatement (eliminating the nuisance)

Answer 56

private nuisance: reasonable force ok but must give notice and D must refuse to act first public: absent unique injury, can only be abated by public authority

Question 57

liability for employee torts

Answer 57

liable for torts committed within scope can include intentional if within scope may be liable for non delegable duties or inherently dangerous

Question 58

test for independent contractor or employee

Answer 58

the more control the employer has, the more likely it's an employee

Question 59

considering if conduct meets reasonable care

Answer 59

(i) the foreseeable likelihood that the person’s conduct will result in harm, (ii) the foreseeable severity of any harm that may result, and (iii) the burden of precautions to eliminate or reduce the risk of harm.