Torts

Question 1

Negligence. Duty of Care. Firefighter’s rule

Answer 1

Firefighters and police officers may be barred by the “firefighter’s rule” from recovering for injuries caused by the risks of a rescue. However, a rescuer (other than firefighter and police) is a foreseeable plaintiff and is owed a duty of care as long as the rescue is not reckless.

Question 2

Attractive Nuisance Doctrine

Answer 2

Under the attractive nuisance doctrine, a landowner has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on the property.

To recover under this doctrine, the plaintiff must show that (i) there is a dangerous condition present on the land of which the owner is or should be aware, (ii) the owner knows or should know that young persons frequent the vicinity of this dangerous condition, (iii) the condition is likely to cause injury, i.e., is dangerous, because of the child’s inability to appreciate the risk, and (iv) the expense of remedying the situation is slight compared with the magnitude of the risk.

The plaintiff does not need to show that the child was lured onto the property by the attractive nuisance.

Question 3

Invitee. Duty owed.

Answer 3

Under traditional landowner liability rules, a landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This general duty includes the duties owed to licensees (to warn of nonobvious, dangerous conditions known to the landowner and to use ordinary care in active operations on the property). A landowner also owes invitees a duty to make reasonable inspections to discover dangerous conditions and make them safe.

A customer of the landowner who goes through a door marked “employees only” is no longer an invitee. A person loses his status as an invitee if he exceeds the scope of the invitation—if he goes into a portion of the premises where his invitation cannot reasonably be said to extend.

Question 4

Statutory Standard of Care

Answer 4

To prove the availability of the statutory standard, a plaintiff must show that the standards set out in the statute are clearly defined. For the statute to apply, (i) the plaintiff must be in the class intended to be protected by the statute, and (ii) the statute must have been designed to prevent the type of injury that he suffered.

Question 5

Negligent infliction of emotional distress - Bystander

Answer 5

To recover, a bystander must show:

(i) a close relationship between the bystander and the person injured;
(ii) the bystander’s presence at the scene of the injury; and
(iii) and the bystander’s observation or perception of the event to recover.

Question 6

Shopkeeper’s privilege - No liability for false imprisonment

Answer 6

The following conditions must be satisfied: (i) there must be a reasonable belief as to the fact of theft; (ii) the detention must be conducted in a reasonable manner and only nondeadly force can be used; and (iii) the detention must be only for a reasonable period of time and only for the purpose of making an investigation. A shopkeeper is not required to notify the police in a reasonable amount of time to avoid liability for false imprisonment when detaining a suspect for shoplifting.

Question 7

Res Ipsa Loquitur - Effects

Answer 7

Where res ipsa loquitur has been proven, the plaintiff has made a prima facie case, and a directed verdict will not be given for the defendant.

The defendant may introduce evidence that due care was exercised, and the jury may reject the permissible inference that may be drawn from the res ipsa proof and find for the defendant.

Question 8

But for test and Substantial factor test

Answer 8

The “but for” test for actual cause applies to concurrent causes. An act or omission to act is the cause in fact of an injury when the injury would not have occurred but for the act. This test applies in concurrent cause cases, where several acts combine to cause the injury, but none of the acts standing alone would have been sufficient. But for any of the acts, the injury would not have occurred.

The “substantial factor” test is used for joint causes, where several causes commingle and bring about an injury, but any one alone would have been sufficient to cause the injury. In that case, it is sufficient if defendant’s conduct was a substantial factor in causing the injury.

Question 9

Dependent intervening forces

Answer 9

Dependent intervening forces are normal responses or reactions to the situation created by the defendant’s negligent act. Dependent intervening forces are almost always foreseeable. A subsequent disease is a common dependent intervening force. Also, negligence of rescuers is a common dependent intervening force.

However, acts of God and intentional torts and criminal acts of third persons are independent intervening forces. Independent intervening forces operate on the situation created by the defendant’s negligence, but they are independent actions rather than natural responses or reactions to the situation.

Question 10

Presumed damages - Negligence

Answer 10

In a negligence action, the plaintiff cannot recover presumed damages. Damage is an essential element of a plaintiff’s prima facie case for negligence. This means actual harm or injury. Unlike for some intentional torts, damage will not be presumed in negligence.

Question 11

Product liability - Breach of duty

Answer 11

To prove breach of duty in a products liability action, the plaintiff must show (i) negligent conduct by the defendant leading to (ii) the supplying of a defective product by the defendant.

Negligent conduct is demonstrated by showing that the defendant’s conduct fell below the standard of care expected of a reasonable person under like circumstances, not the level of care generally exercised by the defendant.

Question 12

Product liability - Strict liability

Answer 12

Unlike with products liability cases based on negligence, those based on strict liability do not require that suppliers have an opportunity to inspect. Thus, for a case based on the sale of a defective product, a retailer in a strict liability action may be liable for a manufacturing or design defect simply for being a commercial supplier of that defective product, even if it had no opportunity to inspect the manufacturer’s product before selling it.

In a negligence action, the supplier’s negligence must be proved. Products liability cases based on negligence and those based on strict liability both require that an injured bystander be foreseeable.

No damages for economic loss in strict liability cases.

Question 13

Strict liability - Abnormally dangerous activity

Answer 13

Applies only to foreseeable plaintiffs.

In general, strict liability is not imposed for injuries to a plaintiff to whom no reasonable person would have foreseen a danger.

The defendant will not be strictly liable to all plaintiffs who were directly injured by the activity. Rather, the harm must result from the kind of danger to be anticipated from the abnormally dangerous activity; i.e., it must flow from the “normally dangerous propensity” of the activity involved.

Question 14

Vicarious liability - Principal / Inpendent contractor

Answer 14

A principal will be vicariously liable for the tortious acts of her independent contractor if the independent contractor is engaged in inherently dangerous activities.

In general, a principal will not be vicariously liable for tortious acts of an independent contractor. Two broad exceptions exist, however: (i) the independent contractor is engaged in inherently dangerous activities, e.g., excavating next to a public sidewalk, blasting; or (ii) the duty, because of public policy considerations, is simply nondelegable, e.g., the duty of a business to keep its premises safe for customers.

Question 15

Contribution

Answer 15

The right of contribution among tortfeasors is a device whereby responsibility is apportioned among those who are at fault. However, it does not apply against a tortfeasor who is immune from liability.

In most states, contribution is based on relative fault of the various tortfeasors rather than on equal shares of the overall liability. Contribution does not provide for apportionment of damages in the absence of joint and several liability; rather, it can only operate in response to joint and several liability, because it allows any tortfeasor required to pay more than his share of damages under joint and several liability rules to have a claim against the other jointly liable parties for the excess

Question 16

Private Nuisance / Interference

Answer 16

The interference with the plaintiff’s use of the land will be considered unreasonable under nuisance law when the severity of the plaintiff’s inflicted injury outweighs the utility of the defendant’s conduct.

Whether the interference is offensive or annoying to an average person in the community is the test for whether the interference is substantial, which is a separate requirement for establishing a nuisance. Whether the remedy of damages is unavailable or inadequate determines only whether the plaintiff may be able to obtain an injunction remedy. A nuisance is sometimes called a “nuisance per se” when it is based on strict liability (e.g., a nuisance arising from an abnormally dangerous activity).

Question 17

Battery - Elements for prima facie case

Answer 17

The prima facie case for battery has the following elements:

(i) an act by the defendant that brings about harmful or offensive contact to the plaintiff’s person;
(ii) intent on the part of the defendant to bring about harmful or offensive contact to the plaintiff’s person; and
(iii) causation.

Question 18

Self-defense / Standard of care

Answer 18

One may act in self-defense not only where there is real danger but also where there is a reasonable appearance of danger.

An honest but mistaken belief that the woman was about to shoot would justify the use of deadly force by the man if a reasonable person would have acted similarly under those circumstances. The test is an objective one—an honest belief alone is not sufficient.

Question 19

Transferred intent doctrine

Answer 19

The transferred intent doctrine allows an intent to commit a tort against one person to be transferred to the committed tort or to the injured person. It applies to (i) assault, (ii) battery, (iii) false imprisonment, (iv) trespass to land, and (v) trespass to chattels.

The defendant is not liable for an assault of B. The committed tort was a battery, and the intent transfers from the assault to the battery.

The defendant has committed a battery of B when he acts with the intent to commit an assault on A, but his conduct constitutes a battery on B.

Question 20

Assault - elements prima facie case

Answer 20

The prima facie case for assault requires:

(i) an act by defendant causing a reasonable apprehension in plaintiff of immediate harmful or offensive contact to plaintiff’s person,
(ii) intent by defendant to bring about in plaintiff apprehension of that contact, and
(iii) causation.

For there to be apprehension, plaintiff must be aware of defendant’s act at the time that it is occurring.

Establishing a prima facie case for assault requires proof of an act by the defendant that creates a reasonable apprehension in the plaintiff of immediate harmful or offensive contact.

Question 21

Use of force to regain property

Answer 21

A landowner may not use force to regain real property after being tortiously dispossessed. Most states today do not allow resort to “self-help”; one who has been wrongfully excluded from possession of real property may bring an ejectment action or other summary procedure to recover possession.

Question 22

Defense of property

Answer 22

A landowner usually must make a request to desist before defending her property. A request is not required if the circumstances make it clear that the request would be futile or dangerous.

A landowner’s right to defend her property does NOT supersede other privileges. If another is privileged to enter upon a landowner’s property, due to necessity, a right of reentry, right to recapture chattels, etc., that privilege supersedes the landowner’s right to defend her property.

A landowner may NOT use deadly force to defend her property. One can only use reasonable force to defend her property, not force that will cause death or serious bodily harm. Deadly force can be employed only if the landowner or another on the property is physically threatened, such that she may act in self-defense or defense of others.

Question 23

Recapture of Chattels

Answer 23

This defense, which allows the property owner (or his agent) to use reasonable force or the threat of force to recapture his chattels from a tortfeasor who has stolen them, has a specialized application in the shopkeepers’ privilege to reasonably detain individuals whom they reasonably believe to be in possession of shoplifted goods.

Question 24

Trespass / Defense of Real Property / Vicious dog

Answer 24

The landowner may not intentionally use a vicious dog to protect only his property. One may use only reasonable force to defend property. A landowner may not use force that will cause death or serious bodily harm. Furthermore, one may not use indirect deadly force such as a trap, spring gun, or vicious dog when such force could not lawfully be directly used, e.g., against a mere trespasser.

Question 25

Private Necessity Privilege

Answer 25

A person may interfere with the real or personal property of another when the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and the threatened injury is substantially more serious than the invasion that is undertaken to avert it.

Question 26

Good Samaritan rule

Answer 26

It refers to a statute exempting licensed doctors, nurses, etc., who voluntarily and gratuitously render emergency treatment, from liability for ordinary negligence. Hence, it would not be used to establish breach of duty.

Question 27

Negligence per se

Answer 27

Most courts still adhere to the rule that violation of an applicable statute is “negligence per se.” This means that the plaintiff will have established a conclusive presumption of duty and breach of duty by showing a violation of the statute. (The plaintiff still must establish causation and damages to complete the prima facie case for negligence.)

Violation of the statute establishes negligence per se—a conclusive presumption of duty and breach of duty; the plaintiff must then establish causation and damages to complete the prima facie case of negligence.

Question 28

Excuses for violation of statute

Answer 28

A violation of an applicable statute may be excused if:

(i) compliance with the statute would cause more danger than a violation (e.g., a defendant drives onto the wrong side of the road to avoid hitting children who dart into his path), or
(ii) compliance with the statute would be beyond the defendant’s control (e.g., a blind pedestrian crosses against a light).

Question 29

Superseding force

Answer 29

A superseding force is one that serves to break the causal connection between the initial wrongful act and the ultimate injury, and itself becomes a direct immediate cause of such injury. Thus, the first actor would be relieved of liability from the consequences of his antecedent conduct.

Question 30

Strict Tort Liability - Product liability - Elements for Prima Facie Case

Answer 30

A prima facie case in products liability based on strict tort liability consists of the following:

(i) the defendant is a commercial supplier;
(ii) the defendant produced or sold a defective product;
(iii) the product was the actual and proximate cause of the plaintiff’s injury; and
(iv) the plaintiff suffered damages to person or property.

Question 31

Disclaimers in Product Liability / Strict Liability Cases

Answer 31

Disclaimers are irrelevant in negligence or strict liability cases if personal injury or property damages occur.

Question 32

Strict liability - Wild Animals

Answer 32

An owner of wild (dangerous) animals is strictly liable for injuries caused by those animals as long as the person injured did nothing, voluntarily or consciously, to bring about the injury. However, strict liability generally is not imposed in favor of undiscovered trespassers against landowners in the absence of negligence, such as when the landowner knows that the trespassers are on the land and fails to warn them of the animal.

Question 33

Strict liability / Causation / Manufacturer

Answer 33

The failure of a retailer to take action after discovering a dangerous defect may prevent establishing causation against a manufacturer in a strict products liability action. The same concepts of proximate cause that govern negligence and strict liability actions are applicable to strict liability actions for defective products.

Question 34

Proximate cause - Liability

Answer 34

Unforeseeable harmful result from D’s act - D not liable.

Foreseeable harmful result:

(i) Direct cause cases: D is liable
(ii) Indirect cause cases (intervening force combine with D act to cause injury):
- D is liable in foreseeable intervening force (medical malpractice) events
- D is liable in unforeseeable intervening force, unless int force is crime or intentional tort
- D is not liable in unforeseeable intervening force that is superseding (breaks the causal connection).

Question 35

Alternative Liability Approach - Causation

Answer 35

When there are two or more acts and only one of which causes injury, but it is not known which one. The court will shift the burden of proof to each of the negligent defendants, and each must show that his negligence is not the actual cause.