Torts

Question 1

[TORTS] • 4 • Intentional Torts • Elements • •

Answer 1

Actions for intentional torts require (1) an act ; (2) committed with specific or general intent ; AND (3) causation. Damages are NOT required, but may increase an award if shown. Specific intent exists when a person desires that his conduct to cause the resulting circumstances. General intent exists when a person is substantially certain that his conduct will cause the resulting circumstances.

Question 2

[TORTS] • 1 • Intentional Torts • Transferred Intent • •

Answer 2

When a defendant acts with the requisite intent to commit a tort, that intent may be transferred to hold the defendant liable for unintended torts and/or unintended plaintiffs.

Question 3

[TORTS] • 1 • Intentional Torts • Assault • •

Answer 3

Assault is an (1) intentional act ; (2) that causes ; (3) the plaintiff to be placed in a reasonable apprehension ; (4) of imminent harmful or offensive contact with the plaintiffs person. The plaintiff must be aware of the defendants act AND believe that the defendant is able to commit the act.

Question 4

[TORTS] • 3 • Intentional Torts • Battery • •

Answer 4

Battery is an (1) intentional ; (2) harmful or offensive contact (analyzed under the reasonable person standard); (3) with the plaintiffs person (including anything connected to the plaintiff). Contact is intentional if it is voluntary and there is substantial certainty that the contact will occur.

Question 5

[TORTS] • 2 • Intentional Torts • Intentional Infliction of Emotional Distress • •

Answer 5

An action for intentional infliction of emotional distress is available if (1) the defendant acted intentionally or recklessly ; (2) the defendants conduct was extreme and outrageous (conduct that transcends all bounds of decency); (3) the defendants act caused extreme emotional distress ; AND (4) the plaintiff actually suffered severe emotional distress.

Question 6

[TORTS] • 1 • Intentional Torts • False Imprisonment • •

Answer 6

False imprisonment requires (1) an act or omission ; (2) that causes ; (3) the plaintiff to be restrained to a bounded area (one with no reasonable means of escape). Restraint may be physical or accomplished through threats. The plaintiff must be aware of the confinement or be physically harmed by it (the extent of the false imprisonment is generally not relevant).

Question 7

[TORTS] • 1 • Intentional Torts • Citizens Arrest for Misdemeanor • •

Answer 7

To make a citizens arrest for a misdemeanor, the detainee must have (1) committed an act that constitutes a breach of the peace; (2) in the presence of the arresting citizen.

Question 8

[TORTS] • 1 • Intentional Torts • Shopkeeper’s Rule • •

Answer 8

The shopkeepers rule is a defense to false imprisonment, and permits a shopkeeper to detain an individual for a reasonable period of time if reasonable grounds exist to believe the individual committed theft.

Question 9

[TORTS] • 3 • Intentional Torts • Conversion • •

Answer 9

Conversion is an intentional interference with the plaintiffs possession of chattel by deprivation or damage, which causes significant extensive harm. A plaintiff may recover the fair market value of the item at the time of interference.

Question 10

[TORTS] • 2 • Intentional Torts • Trespass to Chattels • •

Answer 10

Trespass to chattel is an intentional interference with the plaintiffs possession of chattel by deprivation or damage, which causes actual damages. A plaintiff may recover the cost of repairs.

Question 11

[TORTS] • 3 • Intentional Torts • Trespass to Land • •

Answer 11

Trespass to land is an intentional physical invasion of land by another without consent or privilege that causes damages. A plaintiff may recover based on either the decrease in value of the property or the cost to repair the property.

A continuing trespass occurs when a defendant leaves a chattel on the plaintiffs land (i.e. a building or a fence).

Question 12

[TORTS] • 1 • Intentional Torts • Defenses • Consent •

Answer 12

Consent is a defense to intentional torts , and may be express or implied. However, the defendants actions CANNOT exceed the bounds of the consent given. Additionally, one may NOT consent to a crime.

Question 13

[TORTS] • 11 • Negligence • Elements • •

Answer 13

A negligence claim requires (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty; (3) the breach be the actual and proximate cause of the plaintiffs injuries; (4) actual damages ; AND (5) no valid defenses.

Question 14

[TORTS] • 6 • Negligence • Elements • Duty • To Whom a Duty is Owed

Answer 14

Under the Andrews view, a duty of care is owed to all foreseeable plaintiffs. However, under the Cardozo view, a duty of care is only owed to foreseeable plaintiffs who are within the zone of danger.

Question 15

[TORTS] • 1 • Negligence • Elements • Duty • Affirmative Duties

Answer 15

Generally, there is no duty to act affirmatively. However, a duty to act affirmatively will arise if ( 1) there is pre-existing relationship between the parties, including family members, common-carrier/innkeeper and patron, land-occupier and invitee; (2) the defendant put the plaintiff in peril ; (3) the defendant has already undertaken to rescue the plaintiff; OR (4) the duty is imposed by law.

Question 16

[TORTS] • 5 • Negligence • Reasonable Person Standard • •

Answer 16

The general standard of care owed to a plaintiff is that which a reasonably prudent person in similar circumstances would provide. For minors, the standard of care is that of a reasonably prudent person of similar age and experience. However, a child engaged in adult activities must perform those activities with the care of a reasonable person .

Question 17

[TORTS] • 4 • Negligence • Negligence Per Se • •

Answer 17

The plaintiff may use negligence per se to prove breach of a duty. A defendant is negligent per se if he (1) violated a statute ; (2) the plaintiff suffered the type of harm the statute was designed to protect against; AND (3) the plaintiff was in the class of persons the statute was designed to protect.

Question 18

[TORTS] • 1 • Negligence • Res Ipsa Loquitor • •

Answer 18

Under the doctrine of res ipsa loquitor, a defendant is presumed to have been negligent if: (1) the accident is of the type that would not normally occur unless someone was negligent ; (2) the injury was caused by something exclusively in the defendants control ; AND (3) the plaintiff did not cause or contribute to the injury.

Question 19

[TORTS] • 2 • Negligence • Standard of Care • Doctors and Informed Consent •

Answer 19

A doctor owes his patient a duty to act as a reasonable doctor would in good standing in the professional local community.

A doctor has a duty to obtain informed consent from his patient before treatment, which requires the doctor to disclose risks of treatment that a reasonable patient would want to know.

Question 20

[TORTS] • 1 • Negligence • Standard of Care • Lawyers •

Answer 20

A lawyer owes his client a duty to act as a reasonably prudent lawyer ; exercise that degree of reasonable knowledge and skill that lawyers of ordinary ability and skill possess and exercise.

Question 21

[TORTS] • 1 • Negligence • Standard of Care • Landowners •

Answer 21

A landowners duty varies depending on who is on the property.

Undiscovered trespassers: No duty is owed.

Anticipated trespassers: The landowner must (1) use reasonable care in operations on the property; AND (2) warn or make safe highly dangerous artificial conditions that the landlord knows of.

Licensees (those invited on the owners property as social guests): A landowner must (1) exercise reasonable care in operations on property; AND (2) warn of highly dangerous conditions that are known to the landowner, but are not apparent to a guest.

Invitees (those invited onto the property for the owners benefit): A landowner owes the same duties to an invitee as he would a licensee, but IN ADDITION he must make reasonable inspections of the property and is liable for failing to warn of dangerous conditions that would have been discovered upon inspection.

Question 22

[TORTS] • 1 • Negligence • Attractive Nuisance • •

Answer 22

A landowner owes a duty to child trespassers, which requires the landowner to warn of or make safe artificial conditions on his land. The duty applies if (1) the landowner knows, or should know, of a dangerous artificial condition on his land that is likely to cause death or serious bodily injury ; (2) the landowner knows, or should know, that children are likely to frequent the area ; AND (3) the risk of harm outweighs the expense of making the condition safe.

Question 23

[TORTS] • 4 • Negligence • Causation • Actual and Proximate •

Answer 23

A plaintiff must show that the defendants conduct was the actual and proximate cause of the plaintiffs injuries. Actual cause exists if the defendants act was the but-for cause of the plaintiffs harm (but for the defendants conduct, the plaintiff would not have been harmed). Proximate cause exists if it is foreseeable that the harm would occur. A superseding force is a third partys act that breaks the chain of causation. However, a third partys act will only break the chain if it was NOT foreseeable. Where multiple causes of an injury exist, the defendant is liable so long as his conduct was a substantial factor in causing the harm.

Question 24

[TORTS] • 2 • Negligence • Eggshell Plaintiff Rule • •

Answer 24

Under the eggshell plaintiff rule, the defendant takes the plaintiff as he finds him , and the defendant is liable for all damages no matter how great the injury is.

Question 25

[TORTS] • 8 • Negligence • Defenses • Contributory and Comparative Negligence •

Answer 25

Defenses to negligence include contributory negligence and assumption of risk.

In a contributory negligence jurisdiction, a plaintiff may NOT recover damages if he contributed to his own injury. Two exceptions to this rule exist: (1) when the defendant had the last opportunity to avoid the accident; OR (2) if the defendant was reckless.

In a pure comparative negligence jurisdiction, if a plaintiff contributed to his own injury, his damages will be reduced by the percentage of fault that is attributable to him.

In a partial comparative negligence jurisdiction, if a plaintiff contributed less than 50% to his own injury then his damages are reduced by the percentage of fault that is attributable to him. However, if the plaintiff contributed more than 50% , then the plaintiffs claim is barred.

Question 26

[TORTS] • 8 • Negligence • Defenses • Assumption of Risk •

Answer 26

Defenses to negligence include contributory negligence and assumption of risk. Assumption of risk is an affirmative defense to negligence, and is available if the plaintiff voluntarily assumed a known risk. Assumption may be express or implied (an average person would appreciate the risks involved).

Question 27

[TORTS] • 3 • Negligence • Negligent Infliction of Emotional Distress • •

Answer 27

An action for negligent infliction of emotional distress requires that (1) the defendant was negligent ; (2) the defendants negligence caused extreme emotional distress ; AND (3) the plaintiff suffered physical manifestations of the distress.

A plaintiff may also bring an action for negligent infliction of emotional distress as a bystander who witnessed an injury caused by the defendants negligence. To recover, the plaintiff must (1) be closely related to the victim; (2) have been present at the scene of the injury and observed the accident; AND (3) have suffered emotional distress beyond that which would be anticipated in a disinterested witness.

Question 28

[TORTS] • 4 • Strict Liability • Ultrahazardous Activity • •

Answer 28

A defendant is strictly liable for damages caused to a plaintiff if he is engaged in an ultrahazardous activity. An ultrahazardous activity is one that is (1) inherently dangerous; (2) uncommon to the geographic area; (3) cannot be made safe; AND (4) the risk of the activity outweighs its social utility.

Question 29

[TORTS] • 4 • Products Liability • Strict liability • Elements •

Answer 29

A strict product liability claim requires (1) a strict duty owed by amerchant or commercial seller ; (2) breach of that duty by supplying a defective product (manufacturing defect, design defect, or inadequate warning); (3) the defective product caused the plaintiff harm ; (4) the plaintiff must suffer physical damages ; AND (5) no valid defenses. Manufacturers, distributers, and retailers owe a strict duty to supply safe products to all reasonably foreseeable plaintiffs, and any link in the distribution chain may be held strictly liable for breach of that duty. However, casual sellers will NOT be held strictly liable. To prove actual cause, the plaintiff must show that the defect existed at the time the product left the defendants control (this is presumed if the product was distributed through ordinary channels). To prove proximate cause, the plaintiff must show that his injury was the result of a foreseeable use of the product, even if it was not the products intended use.

Question 30

[TORTS] • 3 • Products Liability • Strict liability • Design Defect •

Answer 30

A design defect exists if there is a flaw in the design of a product that makes it unreasonably dangerous. To prove a design defect, the plaintiff may show that there is a reasonable alternative design for the product that makes it safer without increasing its price.

Question 31

[TORTS] • 2 • Products Liability • Strict liability • Manufacturing Defect •

Answer 31

A m anufacturing defect exists if the product leaves the plant in a different condition that makes it more dangerous than normal. To prove a manufacture defect, a plaintiff may show that the product is more dangerous than the average consumer would expect.

Question 32

[TORTS] • 3 • Products Liability • Strict liability • Failure to Warn and Inadequate Labeling •

Answer 32

A product may be defective if the manufacturer fails to adequately warn the consumer of the risks involved with using the product AND the danger is not apparent.

Question 33

[TORTS] • 4 • Products Liability • Negligence • Elements •

Answer 33

A negligent product liability claim requires (1) a duty owed to the plaintiff; (2) a breach of that duty; (3) causation (actual and proximate); (4) damages ; AND (5) no valid defenses. Manufacturers owe a duty to all foreseeable users of its products to act as a reasonably prudent manufacturer of the same type of product. A breach will be found when a manufacturers negligence results in the supply of a defective product. Manufacturers are liable for all foreseeable misuses of their product, so a misuse will only cut the chain of liability if it was NOT foreseeable. Only damages from physical injuries or property damages are recoverable; a plaintiff may NOT recover damages for economic loss.

Question 34

[TORTS] • 1 • Products Liability • Indemnification • •

Answer 34

Where there is more than one tortfeasor, responsibility for damages may be shifted among those involved. For example, in a products liability case, a retailer may receive indemnification from the manufacturer if both are held jointly liable AND the manufacturer is more at fault.

Question 35

[TORTS] • 1 • Products Liability • Compliance with Government Regulations • •

Answer 35

A manufacturers failure to comply with government regulations conclusively proves a defect. However, compliance with government regulations is NOT conclusive, but rather evidence that the product is not defective.

Question 36

[TORTS] • 1 • Business Torts • Interference with Prospective Business Expectation • •

Answer 36

An action for intentional interference with a business expectation is available when: (1) the plaintiff had a business relationship ; (2) the defendant knew about the relationship ; (3) the defendant deliberately coerced one of the parties to end the relationship or caused the relationship to go bad ; (4) the relationship ended or went bad ; AND (5) the plaintiff suffered damages.

Question 37

[TORTS] • 1 • Privacy Torts • Appropriation of Picture or Name • •

Answer 37

Misappropriation occurs when the defendant used the plaintiffs name or likeness for the defendants commercial advantage AND that use caused the plaintiff harm. Newsworthiness is a defense to misappropriation.

Question 38

[TORTS] • 1 • Privacy Torts • False Light • •

Answer 38

False light occurs when the defendant causes widespread dissemination of the plaintiffs beliefs, thoughts, or actions in a false light that would be objectionable to a reasonable person. If a plaintiff is a public figure, and the issue is a matter of public concern, the plaintiff must show actual malice.

Question 39

[TORTS] • 1 • Privacy Torts • Intrusion of Privacy • •

Answer 39

Intrusion of privacy occurs when the defendant intrudes where a plaintiff has a reasonable expectation of privacy AND the intrusion is objectionable to a reasonable person.

Question 40

[TORTS] • 1 • Privacy Torts • Public Disclosure of Private Facts • •

Answer 40

Public disclosure of private facts occurs when the defendant caused widespread dissemination of truthful private information that would be objectionable to a reasonable person. If a plaintiff is a public figure, and the issue is a matter of public concern, the plaintiff must show actual malice.

Question 41

[TORTS] • 3 • Defamation • • •

Answer 41

The elements required to prove a prima facie case of defamation are (1) a defamatory statement of and concerning the plaintiff made by the defendant, (2) publication by the defendant to a third party, AND (3) damages.

For slander (an oral defamatory statement), the plaintiff ALWAYS needs to prove special damages, unless the statement falls within one of the slander per se categories. If it does, then the plaintiff does not need to prove special damages, unless the defamatory nature of the statement is not clear on its face.

The four slander per se categories are: (a) impugning the business integrity or skill of the plaintiff, (b) a statement of unchastity about an unmarried woman, (c) a statement that the plaintiff has or had a loathsome disease, or (d) attributing to the plaintiff a crime of moral turpitude.

For libel (defamation embodied in some permanent format), the plaintiff does not need to prove special damages, unless (1) the statement does not fall within one of the slander per se categories AND (2) the defamatory nature of the statement is not clear on its face.

It is important to note that if the plaintiff is a public figure (either having injected herself into a public controversy or having achieved widespread notoriety) there is a heightened standard to prove defamation, which requires the plaintiff to prove that the statement was false and that the defendant spoke with recklessness as to the truth of the statement or with knowledge of its falsity.

If the plaintiff is a private figure speaking about a matter of public concern , the plaintiff need only prove that the statement is false and that the speaker was negligent.

A party can claim qualified privilege as a defense to defamation where their speech serves a socially useful purpose. Often, in cases of qualified privilege, the speech is made by the defendant in a situation where the defendant is speaking to benefit the plaintiff, though this need not be the case. Examples of this are situations where: an individual is recommending an employee; someone is reporting wrongdoing to an agency; or reporting facts to a police officer. But, the speaker must be speaking in good faith AND must not be reckless as to the truth of his statement or say something affirmatively untrue.

Question 42

[TORTS] • 1 • Abuse of Process • • •

Answer 42

An action for abuse of process is available when (1) one party uses a court process against another for an improper purpose ; (2) an act or threat is used to accomplish that purpose; AND (3) damages resulted.

Question 43

[TORTS] • 2 • Malicious Prosecution • • •

Answer 43

Malicious prosecution requires the following elements:(1) a civil or criminal proceeding initiated against the plaintiff; (2) the claim was initiated for an improper purpose (any purpose other than to obtain justice); (3) the claim was NOT supported by probable cause (reasonable belief that the defendant was guilty); (4) the claim ended in the plaintiffs favor ; AND (5) the plaintiff suffered damages. Prosecutors are immune from liability.

Question 44

[TORTS] • 1 • Nuisance • Private • •

Answer 44

A private nuisance is a substantial and unreasonable interference with a persons use or enjoyment of her property.

Question 45

[TORTS] • 1 • Nuisance • Public • •

Answer 45

A public nuisance is an unreasonable interference with the health, safety, or property rights of the community. To recover damages, the injured party must show actual damages.

Question 46

[TORTS] • 1 • Joint and Several Liability • • •

Answer 46

In a jurisdiction permitting joint and several liability, if multiple defendants are the proximate cause of a single indivisible harm, the plaintiff may recover the FULL amount of damages from any one of the defendants. A defendant who pays more than his fair share of the damages may bring an action against the other defendants for the difference.

Question 47

[TORTS] • 2 • Respondeat Superior • • •

Answer 47

Under the doctrine of respondeat superior, an employer is liable for acts of his employees that are within the scope of the employees employment. An employees minor deviation from the scope of employment for personal reasons does NOT remove the employers liability. Employers are NOT liable for intentional torts committed by employees.

Question 48

[TORTS] • 2 • Respondeat Superior • Employee vs Independent Contractor • •

Answer 48

Employers are generally NOT liable for the torts of independent contractors UNLESS the independent contractor is engaged in an inherently dangerous activity OR the duty owed by the employer is non-delegable (i.e. the duty of care owed to an invitee). To determine whether a person is an employee or an independent contractor a court will consider whether the employer had a right to control the method and manner of the work. Other important factors include (1) the degree of the employers control ; (2) whether the pay was hourly or by the job ; (3) whether the employer furnished the tools and other items; (4) whether the job was for the benefit of the employer’s business ; AND (5) the length of the working relationship.

Question 49

[TORTS] • 1 • Survival and Wrongful Death Claims • • •

Answer 49

The executor of a decedents estate (or the decedents spouse/children), may assert a wrongful death claim against a negligent tortfeasor for damages resulting in the death of the decedent. The party asserting the claim must prove that the underlying tort led to the decedents death. Damages are limited to those suffered due to the loss of the decedent.

Survival actions permit a tort action to continue after the death of one or more of the parties, and include recovery of damages up to and until the partys death.