Torts

Question 1

Vicarious Liability

Answer 1

• Employers are vicariously liable for the negligence of their employees, committed while the employee is acting within the scope of their employment.
• Principals (of employees AND independent contractors) liable for intentional torts
  
  • IF:
    ▪ Force is authorized by employment
    ▪ Friction is generated by employment
    ▪ Employee furthering business of employer
• IC - Vicarious Liability for negligence in 2 situations:
  
  • IC is engaged in inherently dangerous activities; and
  • The duty is non-delegable (duty to keep premises safe, house safe, car in good condition)
• Vicarious Libaility is NOT a defense for employee

Question 2

Intentional Torts

Answer 2

1. Assault
2. Battery
3. False Imprisonment
4. Trespass to Chattels and Conversion
5. Intentional Infliction of Emotional Distress
6. Abuse of Process
7. Malicious Prosecution

Question 3

Intentional Torts - Assault

Answer 3

1. A volitional act
2. Done with the intent to cause either:
   
   • Harmful or offensive contact that, OR
   • An apprehension of imminent harmful or offensive contact that
3. Causes the reasonable apprehension of harmful or offensive contact

Question 4

Intentional Torts - Battery

Answer 4

1. A volitional act
2. Done with the intent ot cause either:
   
   • Harmful or offensive contact, OR
   • An apprehension of imminent harmful or offensive contact that
3. Causes harmful or offensive contact

Question 5

Intentional Torts - False Imprisonment

Answer 5

• Elements:
  
  • An act intending to confine someone within boundaries fixed by the actor
  • Directly or indirectly resulting in such confinement, and
  • The confined person is either aware of confinement or harmed by it
• DEFENSES:
  
  • Shopkeeper Privilege = reasonable grounds to believe theft occured, may detain for reasonable time and in a reasonable manner to ascertain what has happened.
  • Crime Prevention = reasonable belief that crime has occurred – must involve disturbing the peace.

Question 6

Intentional Torts - Trespass to Chattels/Conversion

Answer 6

• Elements
  
  • _​_An act which is an intermeddling or disposession
  • Of the personal property of another
  • Which causes harm to, or the loss of use of the personal property
• CONVERSION = interference so serious that it warrants the ∆ paying full value of chattel at time of conversion.

Question 7

Intentional Torts - IIED

Answer 7

• Elements:
  
  • _​_INtent to cause severe emotional distress, and
  • Extreme and outrageous conduct that
  • Causes severe emotional distress
• No requirement for actual physical harm UNLESS negligent IIED

Question 8

Intentional Torts - Abuse of Process

Answer 8

• Elements
  
  1. Use of a legitimate process
  2. For a wrongful purpose (harass, waste time)
  3. And an act or threat against the π to accomplish the wrongful purpose
• Prohibits the use of any form of process to bring about a result other than that which the process was intended

Question 9

Intentional Torts - Malicious Prosecution

Answer 9

1. Initiation of civil or criminal proceeedings against π
2. Without probable cause
3. For a wrongful purpose
4. And the favorable termination of the proceedings on th emerits in favor of current π (∆ in original case)

Question 10

Negligence

Answer 10

• The 5 elements of negligence are:
  
  1. Duty
  2. Breach
  3. Actual Cause
  4. Proximate Cause
  5. Harm

Question 11

Negligence - Duty

Answer 11

• When a person engages in an activity, they are under a legal duty to act as an ordinary, prudent, reasonable person
• It is not enough to say “∆ had a duty to act reasonably under the circumstances” (too general)
• Incorporate standard of care as part of duty analysis.

Question 12

Negligence - Breach

Answer 12

• Where ∆’s behavior falls hort of that level reuired by the applicable standard of care.
• Not enough to say “∆ breached her duty”
• Explain why and how
  
  • “∆ breached his duty to drive the car reasonably when he drove 20 MPH over the speed limit”

Question 13

Negligence - Negligence per se

Answer 13

• If there is a violation of a criminal statute, alternatively consider Negligence Per Se to establish a duty and breach.
• Elements:
  
  • _​_Statute or ordinance must be a criminal statute
    
    • Includes traffic and safety infractions
  • The π must be a memebr of the class of persons intended to be protected by the statute; and
  • The claimed harm must be the typ eof harm intende to be protected against by the statute.
• *A finding of negligence per se results in the conclusive presumption of a breach and duty in a majority of states – BUT IT IS NOT a separate cause of action. It is only an alternative type of standard of care *
• Even if you find it, discuss all 5 elements of negligence as if negligence per se is not established.

Question 14

Negligence - Duty - Possessors of Land

Answer 14

• Generally, a landowner owes no duty to protect someone outside the premises from either natural or artifical condition on the land.
• With respect to **artificial conditions, **2 exceptions:
  
  1. A duty to protect from unreasomably dangerous artificial conditions
  2. Duty to take precautions to protect persons passing by from dangerous condition.
• Duty Depends on Classification:
  
  • Invitees
  • Licensees
  • Trespassers

Question 15

Negligence - Duty - Possessors of Land - Invitee

Answer 15

• Duty to inspect, discover, repair, and protect
• Possesor is liable if and only if:
  
  • Knows or by the exercise of reasonable care should have discovered the condition and should realize that it poses an unreasonable risk of harm to invitees; and
  • Should expect that invitee will not discover or realize the daner or will fail to protect themselves against it; and
  • Fails to exercise reasonable care to protect them agains tthe danger

Question 16

Negligence - Duty - Possessors of Land - Licensee

Answer 16

• Duty to repair and protect against known dangers
• Possessor liable if and only if:
  
  • Knows or has reason to know of the condition and shoudl realize that it involved an unreasonable risk of harm to the licensees and should expect tthat hte licensees will not discover or realize the danger; and
  • Fails to exercise reasonable care to make the conditino safe or to warn the licensee of hte conditon and the risk inveolved; and
  • The licensees do no tknow or have reason to know of the condition or the risk involved

Question 17

Negligence - Duty - Possessors of Land - Trespassers

Answer 17

• Duty only extends to artificial dangerous condition
  
  • Known Trespassers: Duty to warn of artifical, non-obvious dangerous conditions maintained by landowner
  • Unknown trespassers: Duty not to use wilful and wanton conduct

Question 18

Negligence - Duty - Possessors of Land - Attractive Nuisance

Answer 18

• Landowner knows or should nkow of dangerous condition
• Onwer knows children are frequenting area
• Dangerous condition likely to cause harm – child’s inability to appreciate risk
• Expense of remedy slight compared to level of risk

Question 19

Negligence - Actual Cause

Answer 19

• Usually the “but for” test
  
  • Shows a connection between the breach of duty and the injury suffered
  • But for ∆’s breach, π would not have been injured
• The only time it is not hte “but for” test is if there are joint caues, any of which alone would have caused the harm.
  
  • Then you use the substantial factor test

Question 20

Negligence - Proximate Cause

Answer 20

• Issue:
  
  • Whether this type of harm was foreseeable from this type of conduct
    
    • It is foreseeable that when a driver drives 20 MPH over the speed limit, an accident may result**​

Question 21

Negligence - Harm

Answer 21

• Include a sentence on harm
  
  • C was harmed because…
• Not discussion on damages unless explicitly asked

Question 22

Negligence - Defenses

Answer 22

• Contributory Negligence
  
  • Complete Bar, UNLESS ∆ had Last Clear Chance
• Comparative Fault
  
  • ​Pure Comparative
  • Non-Pure Comparitve
• Assumption of Risk
• Emergency

Question 23

Nuisance

Answer 23

• Public Nuisance
  
  • Common Public INterest
  • No private cause of action unless harm is different in kind from that suffered by public
• Private Nuisance
  
  • ​An unreasonable invasion of another’s interest in the use or enjoyment of his or her land
  • And the invasion is either:
    
    • Intentional or
    • Unintentional and otherwise acitonable as negligence, reckless, or abnormally dangerous conditions or activities

Question 24

Trespass

Answer 24

• Entry onto or remaining upon land in the possession of another without a privilege to do so created by possessor’s consent or otherwise.
• Mistake is not a defense
• In most jurisdictions, trespass does not require proof of harm, but in such a case only nominal damages may be awarded
• Remedy is often injunction

Question 25

Strict Liability **- Animals**

Answer 25

1. ∆ owned wild animal 2. that caused harm to π

Question 26

Strict Liability - **Abnormally Dangerous Activities**

Answer 26

* Carrying on of an abnormally dangerous activity * High degree of risk or harm * Gravity of the harm * Inability to eliminate the risk by using reasonable care * Which causes harm * The risk of which make the activity abnormally dangerous

Question 27

Products Liability

Answer 27

* Three Distinct Theories -- discuss all three: * Strict Products Liabiilty * Negligence * Breach of Warranty

Question 28

Prodcuts Liability - **Strict Products Liability**

Answer 28

* Defendant is in the business of selling or otherwise distributing products (commercial supplier) * Includes Manufactures, Wholesalers, Retailers, Distributors * Defendant sells or distributes a defective product (places it in the stream of commerce) and product remains unchanged * **_Manufacturing Defect_** * **_​_**Product departs from design * Error on assembly line * **_Design defect_** * **_​_**Risk/Utility OR * Reasonable & feasible alternative design * Consumer expectations (CA Only) * **_Inadequate instructions or warnings_** * ​(1) knows or has reason to know * (2) that the product is likely to be dangerous for the use for which it is supplied * (3) has no reason to believe that the users of the product will realize its dangerous condition * (4) has no reason to believe that the users of the product will realize its dangerous condition * The defect causes the harm

Question 29

Products Liability - **Breach of Warranty**

Answer 29

* Three Types * **_Express Warranty_** * **_​_**Warranty is expressly made * *Affirmation of fact* * Relied on by purchaser * Breach causes harm * **_Implied Warranties of merchantability_** * **_​_**Average quality * Fit for ordinary purpose * Adequately packaged * Conforms to promises on label * **_Implied warranties of fitness for a particular purpose_** * **_​_**Seller knows of special need * Recommends product with that knowledge * Fault free – even if the defendant did everything right, if the goods that the defendant sells are not as warranted, Defendant is in breach and owes Plaintiff damages

Question 30

Defamation

Answer 30

* _Elements:_ * A defamatory Statement * *harm to π's reputation* * Of or cocnerning the π * *Reader/hearer can tell defamatory statement refers to π* * Publication (communication to 3rd person) * Harm to reputation (unless defamation *per se*) * **DEFENSES:** * **​**_Truth_ - complete defense * _Privilege_ - absolute or qualified * **CONSTITUTIONAL ISSUES** * **​**If first amendment defenses, discuss: * Falsity of the defamatory language; and * Fault * Public official or PUblic Figure as π * Have to also prove that statement was false AND defendant acted with malice (knowledge that it was false or reckless disregard for truth) * Private π, but matter of Public Concern (usually media ∆) * Requires that hte ∆ made the false statement at least through negligence to recover actual damages; still requires malice to recover presumed/punitive damages.

Question 31

Invasion of Privacy

Answer 31

1. Intrusion 2. Public Disclosure of Private Facts 3. False Light 4. Appropriation

Question 32

Invasion of Privacy - **Intrusion**

Answer 32

* Unreasonably and seriously interferes with another's interest in not having affairs known; * Conduct would offen person of reasonable sensibilities

Question 33

Invasion of Privacy - **Public Disclosure of Private Fact**

Answer 33

* Public disclosure * Of a private fact * That would be offensive and objectionable to the reasonable person * That is not of legitimate public concern * **_Constitutional issue: _** No liability if truthful information obtained lawfully

Question 34

Invasion of Privacy - **False Light**

Answer 34

* Defendant publicizes a private matter concerning the plaintiff * That places the plaintiff before the public in false light * That would be highly offensive to a reasonable person * And, if matter of public concern, defendant acted with malice (knowledge or reckless disregard for the truth of the matter and the false light)

Question 35

Invasion of Privacy - **Appropriation**

Answer 35

Protects one’s pecuniary interests. * An appropriation or use * Of the plaintiff’s identity * By the defendant * For the defendant’s commercial purpose

Question 36

**Intentional Misrepresentation**

Answer 36

* Defendant made a false representation concerning a presently existing material fact * Scienter * that the defendant either: * a) knew was false or * b) made recklessly, knowing that he had insufficient knowledge on which to base the representation * For the purpose of inducing the other party to act on the representation * That the other party, acting reasonably or justifiably and in ignorance of the falsity of the representation, actually relied on it; and * Was thereby induced to act to his injury and damage

Question 37

Negligent Misrepresentation

Answer 37

* Defendant made a false representation concerning a presently existing material fact * Scienter * defendant should have known the truth—was careless in ascertaining the truth * For the purpose of inducing the other party to act on the representation * That the other party, acting reasonably or justifiably and in ignorance of the falsity of the representation, actually relied on it; and * Was thereby induced to act to his injury and damage

Question 38

Misrepresentation - **Concealment**

Answer 38

* Defendant made a representation concerning a presently existing material fact, but omitted material facts , which omission makes the statement misleading * Scienter * that the defendant knew was misleading * For the purpose of inducing the other party to act on the representation * That the other party, acting reasonably or justifiably and in ignorance of the falsity of the representation, actually relied on it; and * Was thereby induced to act to his injury and damage

Question 39

Interference with Economic Relationships - **Contract**

Answer 39

* Interference * Which is intentional and * Improper or unlawful * In a contract between two other persons * Causing one of them to not perform the contract

Question 40

Interference with Economic Relationships - **Relationship**

Answer 40

* An economic relationship between plaintiff and third parties * Knowledge by the defendant of the existence of the relationship * Intentional, wrongful acts, independent of the interference itself, designed to disrupt the relationship * Actual disruption of the relationship * Damages proximately caused by the acts

Question 41

Tort Damages

Answer 41

* Purely economic loss is generally not recoverable in a negligence action unless there is also either physical injury or injury to property * Punitive damages are only recoverable if the Defendant’s conduct was malicious or willful * **_Tort Damages must be:_** * Causal * Foreseeable * Reasonably Certain * Unavoidable

Question 42

Contribution and Indemnity

Answer 42

* Contribution allows a tortfeasor who is required to pay more than their share of the damages to have a claim against the other jointly liable parties for the excess he paid * Indemnity (shifts liability 100% from one defendant to another) is available where: * A party is only vicariously liable * Under strict products liability up the vertical chain of distribution * Considerable difference in degree of fault (intent v. negligence)