Torts

Question 1

What is the assumption of risk?

Answer 1

When a plaintiff knowingly and voluntarily exposed themselves to a known risk.

Question 2

What is comparative fault?

Answer 2

A plaintiff’s recovery may be reduced in proportion to their degree of fault in causing or contributing to their own injuries.

Question 3

When can a P recover for misrepresentation?

Answer 3

To recover for misrepresentation, a P must show that a (1) false statement of past or existing fact was made by D, (2) the statement was made with an intention to induce reliance on the statement, and (3) the P did in fact rely on the statement

Question 4

When can a party sue for breach of warranty?

Answer 4

A P may recover for warranty under either an express or implied warranty.

An express warranty is given when a D makes explicit statements concerning the product and the product fails to conform to those standards.

A warranty is implied in the sale of goods that the goods conform to the ordinary expectations of ordinary customers.

Question 5

When is a product defective for failure to warn?

Answer 5

A product is defective due to failure to warn if the manufacturer does not provide adequate warnings or instructions about non-obvious risks that are foreseeable and associated with the product’s use, making it unreasonably dangerous to consumers.

Question 6

What is the consumer expectation test?

Answer 6

A design defect can be shown where a product fails to conform to the safety expectations of an ordinary consumer.

Question 7

What is the alternative design test?

Answer 7

A product is defective in design if the risk of harm could have been reduced by a reasonable alternative design.

Question 8

What is the risk/utility test?

Answer 8

A design defect can be shown where a product’s utility is outweighed by a risk of harm.

Question 9

What is a design defect?

Answer 9

A product contains a design defect when it contains a common feature with other products in the sale line that make it unreasonably dangerous to consumers.

Question 10

What is a manufacturing defect?

Answer 10

A product has a manufacturing defect if it deviates from its intended design, making it more dangerous than expected, even without fault.

Question 11

What is required for a strict product liability claim?

Answer 11

To recover, a P must show: (1) D was a commercial supplier, (2) the product was defective, (3) the defect existed when the product left the D’s control, (4) there was causation (actual and proximate) (5) P used the product in a foreseeable manner, and (6) there were damages.

Question 12

When is an equitable lien available?

Answer 12

An equitable lien is available when (1) a defendant wrongfully acquires funds traceable to a specific property, and (2) a constructive trust is impractical or unavailable.

Question 13

When does equity support recovery?

Answer 13

Equity supports recovery when the D’s misconduct warrants restitution to achieve fairness.

Question 14

What is traceability?

Answer 14

Traceability requires proving P’s funds directly acquired the property.

Under the Lowest Intermediate Balance Rule, recovery is limited to the lowest balance in a commingled account after withdrawals of misappropriated funds.

If the account balance reaches $0, misappropriated funds are extinguished, and later deposits cannot be traced to P’s original funds.

Question 15

When is a constructive trust required?

Answer 15

A constructive trust requires (1) wrongful acquisition of property, (2) traceability of the property to P’s funds, and (3) equity favoring recovery.

Question 16

When are TRO’s or Preliminary Injunctions granted?

Answer 16

TRO or Preliminary Injunction is granted when the P seeks immediate relief to prevent irreparable harm before a final judgment.

The elements are (1) irreparable harm, (2) likelihood of success, (3) a balancing of hardship, and (4) consideration of public interest.

Preliminary Injunctions require P to show a likelihood of success on the merits.

Question 17

What is a trespass?

Answer 17

Trespass occurs when a person intentionally enters or remains on another’s property without lawful authority or consent. A holdover tenant who remains on the premises without the landlord’s consent may be liable for trespass.

Question 18

What are the three ways to test if a product has a design defect?

Answer 18

There are three tests to consider a design defect: (1) the risk-utility test, (2) the availability of a reasonable alternative design, and (3) the consumer expectation test.

Question 19

Under what theories can a manufacturer be held strictly liable for injuries caused by their products?

Answer 19

Manufacturers, distributors, and sellers can be held strictly liable for injuries caused by defective products under theories of (1) manufacturing defect, (2) design defect, or (3) failure to warn.

Question 20

What is the state-of-the-art defense?

Answer 20

A manufacturer may argue that the product met prevailing scientific and technical knowledge at the time of production to negate strict liability for failure to warn.

Question 21

Can a manufacturer be liable for an unforeseeable misuse of its products?

Answer 21

A manufacturer is not liable for injuries caused by unforeseeable misuse of a product.

Question 22

What is the industry custom defense?

Answer 22

Adherence to industry custom is evidence of reasonableness but is not conclusive in determining liability.

Question 23

What are the elements to negligence?

Answer 23

Negligence requires proof of (1) a duty of care, (2) breach of that duty, (3) causation (both actual and proximate), and (4) damages.

Question 24

What is the standard duty of care?

Answer 24

All individuals owe a duty to exercise reasonable care to prevent foreseeable harm to others in the zone of danger.

Question 25

When is a duty breached?

Answer 25

A breach occurs when a person’s actions fall below the standard of care that a reasonable person would exercise under similar circumstances.

Question 26

What is actual cause?

Answer 26

Actual cause occurs when "but for" the D's act, the P's harm would not have occurred.

Question 27

What is proximate cause?

Answer 27

Proximate cause occurs when a P's injury is a foreseeable and direct consequence of D's actions and there are no intervening or superseding causes.

Question 28

What are intervenient or superseding causes?

Answer 28

An unforeseeable, independent intervening act that breaks the causal chain is a superseding cause, relieving the defendant of liability.

Question 29

What does a violation of a statute constitute negligence per se?

Answer 29

A statutory violation establishes a presumption of negligence if (1) the statute is designed to prevent the type of harm that occurred, (2) the plaintiff is within the protected class, and (3) the violation caused the harm.

Question 30

What are the elements for defamation?

Answer 30

The elements of defamation are that (1) the actor published (2) a defamatory statement of fact (3) of and concerning the victim, which (4) caused reputational harm to the victim.

Question 31

What is a defamatory statement?

Answer 31

A defamatory statement is a statement of fact that tends to harm the victim’s reputation.

Question 32

How does defamation differ between Public and Private individuals?

Answer 32

A public figure must prove actual malice, while a private figure must prove negligence in publishing the false statement.

Question 33

When is a defamatory statement "of or concerning the defendant"?

Answer 33

When it explicitly identifies the plaintiff or is reasonably understood to refer to them by implication.

Question 34

What is the publication requirement for defamation?

Answer 34

A defamatory statement must be communicated to at least one third party.

Question 35

Can you be defamed if the statement is true?

Answer 35

The statement must be false; truth is a complete defense to defamation.

Question 36

What is the difference between slander and defamation?

Answer 36

Defamation is a false statement that harms a person's reputation and is communicated to a third party. Slander is a subtype of defamation that involves spoken statements, whereas libel refers to written, printed, or recorded defamatory statements. Slander generally requires proof of special damages unless it qualifies as slander per se, where harm is presumed.

Question 37

What is slander?

Answer 37

Slander is a spoken defamatory statement that is communicated to a third party, is false, and harms the plaintiff’s reputation. The plaintiff must prove special damages (actual economic harm) unless the statement falls under slander per se, where damages are presumed.

Question 38

What is slander per se?

Answer 38

A defamatory spoken statement is actionable without proof of special damages if it falls into one of the following categories: (1) accusing the plaintiff of a crime, (2) alleging the plaintiff has a loathsome disease, (3) imputing unchastity to the plaintiff, or (4) harming the plaintiff’s business, trade, or profession.

Question 39

What is contributory negligence?

Answer 39

In contributory negligence jurisdictions, a plaintiff's own negligence that contributes to their harm may bar recovery entirely.

Question 40

What is joint and several liability?

Answer 40

Under joint and several liability, multiple defendants contributing to a single harm may each be held liable for the full amount of damages. A tortfeasor who pays more than their fair share of damages may seek contribution from other tortfeasors based on their respective fault.

Question 41

Can a defendant be liable for abnormally dangerous activities?

Answer 41

A defendant is strictly liable if the activity creates a high risk of harm, the risk cannot be eliminated through reasonable care, and the activity is uncommon in the community. Strict liability applies if the activity’s dangerous nature is the actual and proximate cause of the plaintiff’s harm.

Question 42

Can a defendant be strictly liable for pets or animals?

Answer 42

A pet owner is strictly liable for harm caused by a dangerous animal, especially if the animal has a history of aggressive behavior or poses inherent risks.

Question 43

What is a private nuisance?

Answer 43

A private nuisance is a substantial and unreasonable interference with the use and enjoyment of another’s property.

Question 44

What is a public nuisance?

Answer 44

A public nuisance is an unreasonable interference with a right common to the general public.

Question 45

When is interference considered substantial? (Nuisance)

Answer 45

Substantial interference occurs when the interference is offensive, inconvenient, or annoying to an ordinary person under normal circumstances.

Question 46

When is interference considered unreasonable? (Nuisance)

Answer 46

Interference is unreasonable if the harm to the plaintiff outweighs the utility of the defendant’s conduct.

Question 47

Can you seek injunctive relief for a nuisance?

Answer 47

Yes, a plaintiff may seek an injunction to stop or limit the defendant’s conduct that constitutes a nuisance.

Question 48

How does a court balance equities in nuisance cases?

Answer 48

In nuisance cases, courts weigh the harm to the plaintiff against the utility of the defendant’s conduct and the feasibility of mitigation measures.

Question 49

Is a principal liable for negligence by independent contractors?

Answer 49

Principals are generally not liable for the negligence of independent contractors unless (1) the duty involves an inherently dangerous activity or (2) a non-delegable duty exists.

Question 50

Are employers liable for the torts committed by its employees?

Answer 50

A principal is vicariously liable for the torts of its agents committed within the scope of employment under the doctrine of respondeat superior.

Question 51

When is something within the scope of employment?

Answer 51

When: (1) "on the job" (acting within the special and temporal bounds of their work) (2) performing the type of work they are employed for; and (3) acting for the benefit of the employer.

Question 52

Is there a duty to protect from third parties?

Answer 52

A party generally has no duty to protect another from third parties unless (1) a special relationship exists or (2) harm is foreseeable and preventable through reasonable measures.

Question 53

What duty is owed by all landowners?

Answer 53

Under the traditional approach, the duty owed by a landowner depends on the status of the entrant: 1. **Trespasser**: A person who enters without permission. The landowner owes a duty only to refrain from willful or wanton harm (except for known or frequent trespassers, where a higher duty may apply). 2. **Licensee**: A person who enters with permission but for their own purpose (e.g., social guests). The landowner must warn of known, hidden dangers. 3. **Invitee**: A person invited for the landowner’s benefit (e.g., customers in a store). The landowner owes a duty of reasonable care to inspect and maintain safe premises. Many jurisdictions, including California, have abolished these distinctions and apply a **general duty of reasonable care to all lawful entrants**. The only exception is for flagrant trespassers, where a landowner may owe only a limited duty to avoid intentional or reckless harm.

Question 54

What is trespass to chattel?

Answer 54

Trespass to chattels occurs when the defendant intentionally interferes with the plaintiff’s personal property, causing damage or deprivation of use.

Question 55

What is conversion?

Answer 55

Conversion occurs when the defendant exercises dominion or control over the plaintiff’s property, depriving the plaintiff of its use entirely or for a significant time.

Question 56

What is trespass to land?

Answer 56

Trespass occurs when a person intentionally enters another's land without permission, regardless of whether harm occurs.

Question 57

What is the tort of assault?

Answer 57

Assault occurs when the defendant intentionally places the plaintiff in reasonable apprehension of imminent harmful or offensive contact.

Question 58

What is the tort of battery?

Answer 58

Battery occurs when the defendant intentionally causes harmful or offensive contact with the plaintiff’s person.

Question 59

What is transferred intent?

Answer 59

Under the doctrine of transferred intent, a defendant’s intent to commit a tort against one person may transfer to the actual victim or to another tort arising from the same act.

Question 60

What is intentional infliction of emotional distress?

Answer 60

IIED occurs when the defendant engages in extreme and outrageous conduct with intent or recklessness, causing the plaintiff severe emotional distress.

Question 61

What is negligent infliction of emotional distress?

Answer 61

NIED occurs when the defendant’s negligent conduct caused severe emotional distress, and the plaintiff (1) was in the zone of danger, facing an immediate risk of physical harm, or (2) was a closely related bystander who witnessed the injury of a victim and suffered serious emotional harm as a result, and the D knew of the close relationship.

Question 62

When can a person claim defense of self or others?

Answer 62

A person may use reasonable force to protect themselves or others from imminent harm, provided the force is proportional to the threat.

Question 63

When can a person claim defense of property?

Answer 63

A person may use reasonable, non-deadly force to prevent unlawful interference with their property but must first request the intruder to stop unless futile or dangerous. Deadly force is never allowed solely to protect property. A person may use reasonable force to reclaim wrongfully taken property if done immediately after the taking; otherwise, legal remedies must be pursued.

Question 64

How does a court determine whether an agent is an employee (servant) or an independent contractor?

Answer 64

To determine whether an agent is an employee (servant) or an independent contractor, courts consider several factors, including: The contractual relationship between the parties and their intent. The principal’s right to control the manner and means of work. The nature of the work and whether it is typically performed by an independent contractor. The parties’ perception of the relationship (e.g., whether they believed they were in an employer-employee relationship). Whether the work involved a non-delegable duty, which may weigh in favor of an employment relationship.