Torts

Question 1

Battery

Answer 1

The intentional infliction of a harmful or offensive bodily contact.

Question 2

Assault

Answer 2

The intentional causing of an apprehension of an imminent harmful or offensive contact.

Question 3

Intentional infliction of emotional distress

Answer 3

IIED caused by def extreme or outrageous conduct. Third party can recover if Pla was physically present and known by the def to be present and is a close relative or suffers physical harm like a heart attack.

Question 4

False imprisonment

Answer 4

Def intentionally causes the Pla to be confined to an area with no reasonable means of escape and the Pla is either aware or harmed.

Question 5

Trespass to land

Answer 5

Intentional physical invasion of the land of another.

Question 6

Trespass to chattels

Answer 6

Intentional interference with a person’s use or possession of chattel.

Question 7

Conversion

Answer 7

Intentional interference with Pla property to the extent that the property is destroyed.

Question 8

Defenses to intentional torts

Answer 8

• Consent
• Self-defense (reasonable force)
• Defense of others (reasonable)
• Defense of property (reasonable)
• Recapture of chattels (reasonable, must be in fresh pursuit)
• Shopkeeper’s privilege (false imprisonment)
• Necessity - may interfere with property to prevent great harm (no liability for public necessity but must pay for damage to property for private necessity)

Question 9

Negligence

Answer 9

1. Duty
2. Breach
3. Actual cause
4. Proximate cause
5. Damages

Question 10

Duty of care

Answer 10

A person owes foreseeable plaintifs a duty to act as a reasonable person.

Question 11

Special duties

Answer 11

Generally no duty to take affirmative action to help a plaintiff. Except when a special relationship exists, the Def caused the danger, or the Def begins to provide assistance.

Question 12

Duty owed by children

Answer 12

Generally duty of similar child unless engaged in an adult activity.

Question 13

Damage on land

Answer 13

Standard of care depends on Pla status.
1. Trespasser - No duty, except for known or frequent trespassers of which owner must warn of known dangers that pose a risk of serious bodily harm.
2. Invitee - Business patron or land open to public, owner must make reasonable inspection to find hidden dangers and make necessary repairs.
3. Licensee - social guest, duty to warn of known dangerous conditions that the licensee is unlikely to discover.

Question 14

Attractive nuisance doctrine

Answer 14

A landowner must exercise ordinary care to avoid forseeable injury to children if:
1. owner knew or should have know that the area is one where children trespass
2. unreasonable risk of serious injury
3. children do not discover risk because of youth
4. expense to remedy is slight compared to risk
5. owner fails to eliminate danger

Question 15

Negligence per se

Answer 15

1. def violates statute
2. pla is within the class of persons statute is designed to protect
3. harm is type of risk the statute was designed to prevent

Question 16

Res ipsa loquitur

Answer 16

1. Defendant had exclusive control
2. Accident is type that ordinarily does not occur in the absence of negligence

Question 17

Actual cause

Answer 17

But-for test

If multiple def then:
1. If only one could have caused the injury burden shifts to defendants.
2. If both caused harm they are jointly and severally liable.

Question 18

Proximate cause

Answer 18

Defendant is liable for all reasonably forseeable harms. The Def is liable for the entire damages regardless if the extent was due to a particular weakness of the plaintiff (eggshell skull). Def is liable for all foreseeable intervening causes (such as medical malpractice) but is not liable forsuperseding intervening causes that are not reasonably forseeable.

Question 19

Negligent infliction of emotional distress

Answer 19

Defendant engages in negligent conduct that causes severe emotional distress. Pla must suffer actual impact or the threat of impact and be in the zone of danger.

Question 20

Contributory negligence

Answer 20

Any negligence on the part of the plaintiff bars his recovery.

Question 21

Partial comparative negligence

Answer 21

Recovery barred if Pla >50% at fault

Question 22

Pure comparative negligence

Answer 22

Allows recovery in proportion of fault.

Question 23

Assumption of the risk

Answer 23

Defense to negligence.

Question 24

Animals

Answer 24

Strict liability for dangerous wild animals.

Strict liability for domestic animals known to be dangerous.

Question 25

Ultrahazardous activities

Answer 25

Strictly liable if: 1. activity creates a high degree of risk of serious harm 2. risk cannot be eliminated by the exercise of reasonable care 3. activity is not common 4. activity is not appropriate for the location 5. danger outweighs the activity's value to the community. Defenses 1. assumption of the risk 2. NO CONTRIBUTIVE FAULT

Question 26

5 theories to establish products liability

Answer 26

1. strict tort liability 2. negligence 3. warranty 4. misrepresentation 5. intent

Question 27

Strict products liability

Answer 27

1. Commercial supplier 2. Defective product a. manufacturing defect b. design defect i. consumer expectation test - meets consumer's minimum safety expectations when used foreseeably. ii. risk-utility test - risk of danger inherent in the design outweighs the benefits of a reasonable cost-effective alternative. c. warning defect 3. Actual cause - but-for and defect existed when it left defendant's control 4. Proximate cause (foreseeability) 5. Damages 6. Defenses a. assumption of the risk b. comparative negligence DISCLAIMERS NOT EFFECTIVE ## Footnote look up liability of manufacturer/wholesaler/retailer... joint and several?

Question 28

Negligence for products liability

Answer 28

Standard analysis but retailers and wholesalers are likely not liable because they only have a duty to inspect or warn of known dangers.

Question 29

Product warranties

Answer 29

1. Express warranty 2. Implied warranty of merchantability - warranting that they are fit for the ordinary purposes for which the goods are used. 3. Fitness for a particular purpose - seller knows the buyer wants the goods for a particular purpose and the buyer relies on the seller's judgment. Defenses 1. Assumption of the risk 2. Comparative/Contributory negligence 3. Failure to give notice of breach within a reasonable time

Question 30

Misrepresentation of fact for products liability

Answer 30

Seller liable for misrepresentations of fact when the statement was a material fact conerning quality or uses of goods and the seller intended to induce reliance and did in fact induce reliance. Must prove actual cause, proximate cause, and damages.

Question 31

Intent for products liability

Answer 31

Def liable if he intended the consequences.

Question 32

Fraud

Answer 32

1. Misrepresentation of a material fact 2. Knowledge of falsity or reckless indifference to the truth 3. Intent to induce plaintiff's reliance 4. Causation 5. Justifiable reliance by plaintiff 6. Pecuniary damages

Question 33

Negligent misrepresentation

Answer 33

1. Misrepresentation 2. Defendant was negligent with no reasonable grounds for believing the misrepresentation to be true. 3. Intent to cause reliance 4. Causation 5. Justifiable reliance by plaintiff 6. Pecuniary damages

Question 34

Private nuisance

Answer 34

Substantial and unreasonable interference with another private individual's use or enjoyment of his land. | Coming to the nuisance not a valid defense.

Question 35

Public nuisance

Answer 35

Substantial and unreasonable interference with the rights of the community. | Coming to the nuisance not a valid defense.

Question 36

Defamation

Answer 36

1. Defamatory statement (false statement holding plaintiff to public contempt) 2. Of or concerning plaintiff 3. Publication to a third party 4. Causation (no one needs to have actually believed it) 5. Damages a. for libel doesn't need to prove special damages and general damages are presumed b. for slander must prove special damages (show pecuniary loss) c. damages are presumed for slander per se when the statement regards i. fitness for a business or profession ii. alleges a loathsome disease iii. imputes criminal behavior iv. imputes sexual misconduct 6. Must prove fault if the defamation is a matter of public concern a. Public figures have achieved pervasive fame or voluntarily asumed a role in a public controversy. When the plaintiff is a public figure actual malice must be proven. Actual malice is knowledge of falsity or reckless disregard for the truth. b. Private persons must prove negligence regarding the falsity of the statement if the statement involves a matter of public concern. 7. Defenses a. consent b. truth c. privilege for remarks made during judicial or legislative proceedings

Question 37

Misappropriation

Answer 37

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

Question 38

Intrusion on plaintiff's solitude

Answer 38

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

Question 39

False light

Answer 39

1. one attributes to plaintiff views he does not hold or actions he does not take 2. it is objectionable to a reasonable person 3. the publication is public Same constitutional limitations as defemation (public interest/public figure negligence/actual malice)

Question 40

Publicity of private life

Answer 40

Public disclosure of private facts that are not a matter of legitimate public concern and which are objectionable to a reasonable person. Disclosure must be made to the public at large.

Question 41

Malicious prosecution

Answer 41

1. Institution of criminal proceedings 2. Termination of proceedings in plaintiff's favor 3. Absence of probable cause 4. Improper purpose 5. Damages

Question 42

Abuse of process

Answer 42

Def intentionally misuses legal process for an ulterior purpose that caused damage to the plaintiff.

Question 43

Tortious interference with business relations

Answer 43

1. Existence of a valid contractual relationship between pla and 3rd party 2. Def knew of the relationship 3. Intentional interference inducing breach 4. Damages May be privileged where it is a proper attempt to obtain business.

Question 44

Respondeat superior

Answer 44

When an employee commits a tort during the course and scope of his employment, the employer will be jointly liable with the employee. One who hires an indepenent contractor is generally not vicariously liable for the contractor's torts unless the employer was negligent in hiring or the duty is nondelegable.

Question 45

Joint and several liability

Answer 45

When two or more negligent acts combine to cause an indivisible harm, each defendant is liable for the entire harm.

Question 46

Contribution

Answer 46

Allows a defendant who pays more than his pro rata share of responsibility to obtain reimbursement from another defendant.

Question 47

Survival action

Answer 47

Allows a cause of action to survive the death of one or more parties.

Question 48

Wrongful death action

Answer 48

Grant recovery for pecuniary injury resulting to the spouse and next of kin for a wrongful death and allows recovery for loss of support and consortium.