Torts

Question 1

Specific Intent

Answer 1

When a tortfeasor intended to achieve a particular result by committing the 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 put the plaintiff in a reasonable apprehension of imminent harmful or offensive contact

Question 4

Reasonable Person Standard

Answer 4

A defendant must use the level of care and caution that a normal person would have used in the same situation

Question 5

Battery

Answer 5

Intentional, harmful, or offensive contact with the plaintiff. Offensive is assessed by the reasonable person standard.

Question 6

Intentional Tort Causation

Answer 6

Demonstrated where the defendant is a substantial factor in bringing about the tort.

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 trespass to chattel, but the amount of interference is substantial, 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 intnetionally or reckless exhibited extreme and outrageous conduct which caused the plaintiff to suffer severe emotional distress. Defendant is liable to any family member also present if the defendant is aware of their presence, or to any other person present if it results in physical harm (bystander rule).

Question 11

False Imprisonment

Answer 11

Occurs when a defendant unlawfully and 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 citzen’s arrest defense may be appropriate.

Question 12

Consent

Answer 12

The defendant will not be found liable for a tort if they receive 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 to self-defense for their own or other’s safety.

Question 14

Privilege to Arrest

Answer 14

This is a defense to false imprisonment – usually applies when the defendant directly observed a felony. For a citizen’s misdemeanor arrest, it has to be a breach of the peace conducted in the presence of the arresting citizen.

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. Two types:

Public Necessity: if for the good of society, damages will not be awarded

Private Necessity: the defendant will not be liable for trespass but will be 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 Doctrine

Answer 17

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 it 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 actually and proximately caused harm resulting in damages. This requires a duty owed, a breach of that duty, actual and proximate causation and damages.

Requires personal injury or property damages – pure economic damages are not generally allowed

Question 19

Duty to Whom

Answer 19

Cardozo (Maj): A duty of care is only owed to a foreseeable plaintiff within the zone of danger.

Andrews (Min): Duty is owed to all foreseeable plaintiffs

Question 20

Duty to Assist

Answer 20

Generally there is no duty to assist someone in danger.

Exceptions exist where a pre-existing relationship exists, the defendant put the plaintiff in the danger or if a person begins to assist and then quits.

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

Question 25

Children SoC

Answer 25

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

Question 26

Medical Doctors SoC

Answer 26

Held to the standard of an average qualified practitioner, by a national standard

Question 27

Landowner's Responsibility

Answer 27

Undiscovered Trespasser -- No duty is owed Anticipated Trespasser -- A landowner must make a reasonable effort not to harm while conducting operations on the property. They must also ensure they make safe, or at a minimum, warn anticipated trespassers of dangerous artificial conditions or equipment on the property. Licensee -- A social guest -- a landowner has the same obligations as with an anticipated trespasser Invitee -- Person on the property for the owners benefit (businesses) -- Same requirements of a licensee, plus to conduct reasonable inspections and correct any latent dangerous conditions

Question 28

Damages

Answer 28

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

Question 29

Negligence Per Se

Answer 29

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 less than they would have been if the defendant complied with the law

Question 30

Res Ipsa Loquitor

Answer 30

Allows 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 the harm

Question 31

Negligence Defenses

Answer 31

Assumption of risk, contributory negligence, partial comparative, and comparative negligence

Question 32

Last Clear Chance

Answer 32

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 33

Eggshell Rule

Answer 33

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 34

Intervening Causes

Answer 34

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

Question 35

Superseding Causes

Answer 35

An act that is unforeseeable and so unrelated to the tort that it serves as a defense to a negligence claim

Question 36

Pure Comparative Negligence

Answer 36

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 37

Partial Comparative Negligence

Answer 37

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

Question 38

Contributory Negligence

Answer 38

Minority Rule -- A complete bar to recover of damages where if the plaintiff is found even 1% at fault, they are awarded nothing

Question 39

Assumption of Risk

Answer 39

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

Question 40

Fireman's Rule

Answer 40

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

Question 41

Third Party Liability

Answer 41

Pure economic loss cannot be recovered by a third party

Question 42

Negligence Infliction of Emotional Distress

Answer 42

Zone of Danger -- Occurs when negligence by the defendant creates a foreseeable risk of injury. Plaintiff must be in the zone of danger and must have suffered some physical symptoms. Pre-Existing Relationship -- Occurs when there is a pre-existing relationship between the plaintiff and the injured, and its foreseeable that the negligent act could cause distress. In this situation, physical injury is not a required element. Bystander Claim -- Occurs when the plaintiff witnesses negligence by the defendant and bears witness to an injury inflicted upon a close family member. Here, the plaintiff must suffer some form of physical injury.

Question 43

Vicarious Liability

Answer 43

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 44

Employees or Contractors

Answer 44

To determine the nature of the contractor/employee, courts will look at the amount of control the employer has over the person, if the 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 with the contractor

Question 45

Intentional Torts of Contractors

Answer 45

Contractors are not typically under the direct control of employers, and thus, they are liable for their own torts.

Question 46

Exception to Independent Contractors

Answer 46

An employer will be liable for independent contractors if it involves a non-delegable duty because the responsibility is so important employers should not be allowed to transfer the duty to another.

Question 47

Intentional Torts of an Employee

Answer 47

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 typically closely associated to the performance of duties, then the employer may be held vicariously liable.

Question 48

Products Liability Claims

Answer 48

May be deemed to exist under five theories: 1. Negligence 2. Strict Liability 3. Implied Warranty 4. Express Warranty 5. Misrepresentation

Question 49

Strict Products Liability

Answer 49

A prima facie case for strict products liability requires: 1. strict duty owed by a commercial supplier 2. Breach 3. Causation (actual and proximate) 4. damages Recovery strictly for economic loss is not allowed. Assumption of the risk is the only defense

Question 50

Breach in Strict Products Liability

Answer 50

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.

Question 51

Strict Products Liability Causation

Answer 51

Actual causation requires that the plaintiff trace the harm to a defect that existed when the product left defendant's control

Question 52

Manufacturing Defect

Answer 52

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

Question 53

Design Defect

Answer 53

Exists if the design itself is faulty and every product that leaves the line has the same dangerous defect. 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 54

Failure to Warn

Answer 54

Occurs when the plaintiff was not warned of the risk 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 normal use of the product.

Question 55

Consumer Expectation Test

Answer 55

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

Question 56

Feasible Alternative Test

Answer 56

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

Question 57

Risk/Utility Test

Answer 57

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

Question 58

Government Safety Compliance

Answer 58

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

Question 59

Product Liability -- Negligence

Answer 59

A negligence claim based on a defective product requires a duty, a breach, causation (actual and proximate), 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 and property damages are recoverable, but not solely economic loss.

Question 60

Duty in Negligent Products Liability Action

Answer 60

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 61

Breach in Negligent Products Liability

Answer 61

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

Question 62

Implied Warranty of Fitness for a Particular Purpose

Answer 62

All products are purchased with an implied warranty of fitness for their 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. Duty -- 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. Breach -- Occurs if a product fails to live up to these warranties Causation -- Same as negligence Damages -- Personal injury, property and purely economic damages are recoverable. Defenses -- Assumption of risk, contributory/comparative negligence

Question 63

Implied Warranty of Merchantibility

Answer 63

All goods sold by a merchant must be fit for their ordinary purpose

Question 64

Express Warranty

Answer 64

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 65

Misrepresentation in Product Liability

Answer 65

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 ht user will rely on such misrepresentation in the purchase and use of the product.

Question 66

Abuse of Process

Answer 66

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

Question 67

Negligent Hiring

Answer 67

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

Question 68

Joint and Several Liability

Answer 68

A judgment for joint and several liability assigns the full value of the judgment to all defendants. If one defendant pays the entirety of the judgment, they will have the right to sue for contribution from their co-defendants.

Question 69

Strict Liability for Wild Animals

Answer 69

For domestic animals -- no liability unless the defendant knew of the anima's vicious propensities. For wild animals -- an owner will be held strictly liable for injuries caused by the animal's known dangerous propensities

Question 70

Strict Liability for Abnormally Dangerous Activities

Answer 70

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.

Question 71

Defamation

Answer 71

Requires a false statement, made of and concerning a plaintiff by the defendant, that was published to a third party, and 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 long-standing nature of writing, and slander when spoken. Damages must be proven, unless slander per se.

Question 72

Truth

Answer 72

A statement is not defamatory if it is determined to be true.

Question 73

Slander per se

Answer 73

Certain types of statements are 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 74

Publication

Answer 74

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

Question 75

Defamatory Statement

Answer 75

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

Question 76

Public Figure

Answer 76

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

Question 77

Public Figure Defamation Standard

Answer 77

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 the 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 public concern, the plaintiff only needs to prove the defendant spoke negligently.

Question 78

Absolute Privilege

Answer 78

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 privileges.

Question 79

Qualified Privilege

Answer 79

A qualified privilege may apply to statements in the common interest of the publisher and recipient, statements to defend one's reputation and reports of official proceedings.

Question 80

Public Nuisance

Answer 80

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

Question 81

Private Nuisance

Answer 81

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.

Question 82

Privacy Torts

Answer 82

Misappropriation of Name/Likeness: Using the plaintiff's name or image for commercial gain without consent. Exception exists if the name or likeness is used in news coverage False Light: Publication of the plaintiff's actions or 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. Intrusion into Seclusion: 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. Public Disclosure of Private Facts: Defendant causes widespread dissemination of private facts that would be highly objectionable to a reasonably prudent person.