Torts

Question 1

Battery

Answer 1

1. Intentional (voluntary and substantially certain that act will cause..)
2. harmful or offensive contact
3. to P’s person

Question 2

Assault

Answer 2

Intentional act that causes reasonable apprehension of imminent harmful or offensive contact with the P’s person.

P must be aware of D’s act AND D is able to commit act

Question 3

False Imprisonment

Answer 3

Act or omission that causes P to be restrained to a bounded area.

Restraint does not need to be physical or confined to one place.

P must be aware of confinement OR physically harmed by it

Question 4

Intentional Infliction of Emotional Distress

Answer 4

P must show:

• extreme and outrageous conduct by D
• intent or recklessness
• D’s act caused extreme emotional distress, AND
• P actually suffered severe emotional distress

Question 5

Bystander IIED

Answer 5

• present when injury incurred
• P is a close relative to victim
• D knew P was present and a close relative

Question 6

Trespass to Land

Answer 6

Intentional physical invasion of P’s real property

Reckless or negligent entries only subject to liability if D causes harm to land

Question 7

Trespass to Chattel

Answer 7

Intentional interference with P’s right of possession in chattel. Amount of damages is small

Question 8

Conversion

Answer 8

Same as chattel but the amount of damage is so substantial that D is liable for the full market value of the chattel involved.

Question 9

Transferred Intent

Answer 9

Still liable if you meant to hit X by hit Y instead

Question 10

Intentional Tort Defense: Consent

Answer 10

Express or implied through words or conduct. D/s actions CANNOT exceed bounds of consent given.

NOTE: Cannot consent to a crime

Question 11

Intentional Tort Defense: Necessity

Answer 11

Public Necessity - If intrusion was for the the protection of the community as a whole, NO liability for trespass and damages

Private Necessity - If to protect own interest, not liable for trespass, BUT liable for actual damage

Question 12

Intentional Tort Defense: Self-Defense/ Defense of Others

Answer 12

D reasonably believed that P was going to harm him or another, AND D used only amount of force that was reasonably necessary to protect himself or another

Question 13

Shopkeeper’s Privilege

Answer 13

Shopkeeper may detain for reasonable time and manner if reasonably believes person committed theft in order to conduct an investigation

Question 14

Prima facie case of neglience

Answer 14

• Duty
• Breach
• Causation: Actual and Proximate
• Damages

Must show sufficient evidence for each element for it to be a prima facie case

Question 15

To whom is a duty owed?

Answer 15

Every person has duty to act as a reasonable person would in similar circumstances.

Duty owed to all foreseeable plaintiffs
(Cardozo view: foreseeable Ps in zone of danger)

Question 16

Affirmative duty rule

Answer 16

No general duty to act affirmatively.

Duty arises if there is a legal relationship

Question 17

Child’s duty of care

Answer 17

Under 4 yrs old: NO liablity.

4-18 yrs old: care of a child of similar age, intelligence and experience under similar circumstances, UNLESS child is engaged in adult activity

Question 18

Landlord’s Duty to Tenants

Answer 18

Landlord has a duty to take reasonable precautions to protect tenants against foreseeable attacks

Question 19

Attractive Nuisance

Answer 19

Landowner owes a duty to child trespassers to warn of or make safe ARTIFCIAL conditions on his land.

Reqts:

• dangerous condition on land that landowner knows or should have been aware of
• owner knows or should know that kids frequent the area, AND
• risk of harm outweighs the expense of making the conditions safe

Question 20

Reasonable Person Standard

Answer 20

Every person owes a duty to act as a reasonable prudent person would act under the circumstances

Question 21

Landowners Standard of Care: Undiscovered trespassers

Answer 21

No duty of care, but no traps

Question 22

Landowners Standard of Care: Discovered/Anticipated Trespassers

Answer 22

Duty to warn of concealed dangerous artificial conditions

No duty to inspect or repair

Question 23

Landowners Standard of Care: Licensees

Answer 23

Social guests.

Duty to warn of all KNOWN dangerous conditions that are not apparent to guest

Question 24

Landowners Standard of Care: Invitee

Answer 24

Business guests

Duty to warn of all KNOWN dangerous conditions AND any dangerous condition that could be discovered through reasonable inspection

Question 25

Negligence Per Se

Answer 25

Statute can be used to substitute common law duty of care. Duty and breach assumed if statute is violated. For causation and damages, P must show - statute's purpose is to prevent the type of injury, AND - P was in the class of persons the statute was meant to protect

Question 26

Res Ipsa Loquitor

Answer 26

"thing speaks for itself" - injury does not typically occur in the absence of negligence, AND - thing/object that caused injury was in D's exclusive control

Question 27

Causation

Answer 27

Actual Cause: "But for" test - but for D's negligence, P would not have been injured Proximate Cause: Injury was foreseeable to D that his breach would cause this type of injury

Question 28

Intervening Cause

Answer 28

Any act that occurs after D's breach that contributes to the harm. D still liable if foreseeable. Superseding cause, if intervening cause was unforeseeable/foreseeable AND causes an unforeseeable injury, then D will not be liable

Question 29

Eggshell Plaintiff Rule

Answer 29

D is liable for all harm a P suffers as a result of his conduct, EVEN if P suffers from a preexisting mental or physical condition that makes the harm worse than it wold have been

Question 30

Comparative negligence

Answer 30

P partly contributed to his injury. Jury assigns % of fault. Pure compar. neg. - P's damage reduced by percentage of his fault Partial compar. neg. - P recovers % of fault if fault is less than 50%. If greater than 50%, claim is barred

Question 31

Contributory negligence

Answer 31

Minority view - if P contributed to his own injury, then barred from recovery. EXCEPT: - when D had last clear chance to avoid accident, OR - D was reckless

Question 32

Assumption of Risk

Answer 32

Defense to negligence. P knew of the risk and voluntarily proceeded.

Question 33

Negligent infliction of emotional distress

Answer 33

P must show: - D was negligent - P was within zone of physical danger - physical manifestation of that stress

Question 34

Respondeat Superior

Answer 34

Employer is liable for an employee's negligent acts if employee was acting within scope of employment. No employer liability for intentional torts, UNLESS: - authorized or ratified by employer - part of the nature of the job, OR - motivated by desire to benefit employer

Question 35

Joint and Several Liability

Answer 35

If two or more negligent are proximate cause to P's injury, then P may recover the entire amount from any one of the Ds

Question 36

Doctrine of Alternative Liability

Answer 36

If multiple Ds are negligent, but unclear which one caused P's injuries, jury can find that ALL Ds are liable

Question 37

Indemnification

Answer 37

Shifts loss between or among tortfeasors (comes up in VL or by contract) Basically, a D is entitled to indemnity if D is passive tortfeasor and seeks to assert its claim against an active tortfeasor. Can recover full amount from active tortfeasor.

Question 38

Contribution

Answer 38

Theory of recovery when there are joint tortfeasors. Joint tortfeasor can seek contribution from other joint tortfeasors for their percentage of fault.

Question 39

Defamation requirements

Answer 39

- Defamatory language concerning P - published by D to a third party, AND - damages

Question 40

Slander

Answer 40

An oral defamatory statement. Need to show economic harm. Slander per se categories, presume damages: - business integrity or skill - unchastity about an unmarried woman - loathsome disease - crime of moral turpitude

Question 41

Libel

Answer 41

Defamation embodied in some permanent format. Does not need to prove damages.

Question 42

Defamation of public figure

Answer 42

Must prove malice (D knows statement is not true or acted in reckless disregard in making statement

Question 43

Defamation of private figure

Answer 43

Must only prove negligence. Showing of damage required. | If malice proved, than damages are presumed

Question 44

Intentional Interference with Business relations

Answer 44

- P had a valid contract or business relationship - D knew of contract/relationship - D intetionally interfered to induce breach or termination - contract/relationship ended, AND - P suffered damages

Question 45

Intentional Misrepresentation (Fraud/Deceit)

Answer 45

- D made misrepresentation of material fact - D knew statement was false - intended to induce P - P relied on info, AND - damages

Question 46

Negligent Misrepresentation

Answer 46

- D owed duty to P (special relationship to give correct information) - D made false representation that they should have known was incorrect - D knew info was going to be used by P in a serious matter - P relied on info - damages

Question 47

Nuisance: Public and Private

Answer 47

Public: unreasonable interference w/ health, safety or property rights of the community Private: substantial and unreasonable interference with a person's use or enjoyment of their property

Question 48

Strict liability for animals

Answer 48

Wild animals - strict liability, no excuses Domestic animals - liability if owner has knowledge of the animal's vicious propensities

Question 49

Ultra hazardous activity

Answer 49

Strict liability - inherently dangerous - uncommon to the area - cannot be made safe - risk of activity outweighs its social utility

Question 50

Strict product liability

Answer 50

P must show - D was a merchant dealing in goods of this type - defective product when it left hands of the manufacturer/seller - P used it in an intended or unintended foreesable way

Question 51

Types of product defects

Answer 51

Manufacturing defect - product differs from other off the assembly and failed to perform as safely as an ordinary consumer would expect Design defect - there was a safer, more practical and more cost effective way to build the product Inadequate (failure to) warning - P was not warned of risks regarding use of product, which are not obvious to an ordinary user. Warning must be proportional to risk of use