Torts

Question 1

Intentional: Assault

Answer 1

Assault is intentionally placing a person in reasonable apprehension of an immediate harmful or offensive contact. The P must be aware and actually fearful/anticipate the threat. Words alone are not imminent enough. Here,

Question 2

Intentional: Battery

Answer 2

Battery is an intentional harmful or offensive contact with P’s person. Contact can be with anything connected to P’s person and P does not need to be aware of the contact if it’s one that society would deem harmful or offensive. Here,

Question 3

Intentional: False Imprisonment

Answer 3

FI requires 1) an intentional act of confinement, 2) within a bounded area, 3) with no reasonable means of escape, that 4) causes injury. Threats of immediate violence are a sufficient act of confinement, but not future threats of violence or economic threats. Here,

Question 4

Intentional: False Imprisonment - Shopkeeper’s Privilege

Answer 4

A store may detain a suspected shoplifter so long as they have 1) reasonable cause, 2) use reasonable force, and 3) only hold the suspect for a reasonable period. Here,

Question 5

Intentional: False Imprisonment - Privilege of Arrest

Answer 5

A private citizen can detain a person using reasonable force based on a reasonable belief a felony occurred, or based on witnessing a misdemeanor involving breach of the peace. Here,

Question 6

Intentional Infliction of Emotional Distress

Answer 6

D intentionally or recklessly engages in extreme or outrageous conduct causing P’s severe emotional distress. No physical symptoms required. Outrageous conduct is conduct that exceeds the bounds of decency in a civilized society. Courts will weigh 1) repetitiveness of conduct, 2) P’s special sensitivities, and 3) power disparity between P and D. Here,

Question 7

Intentional: Trespass to Land

Answer 7

Trespass to Land requires a physical invasion of P’s land. Intent only requires a volitional act, not the intent to trespass. A physical invasion can be to the land’s surface, air above, or soil below. Nominal damages are sufficient. Here,

Question 8

Intentional: Trespass to Chattel/Conversion

Answer 8

Trespass to Chattels is an intentional interference with P’s right of possession of personal property. Conversion is the serious interference or destruction of P’s personal property. The remedy for trespass is the cost to repair. The remedy for conversion is the full fair market value of the property, i.e. a forced sale where D keeps item and pays P fair value. Here,

Question 9

Defenses CNDDD - Consent

Answer 9

Consent is a defense to ALL intentional torts. Consent must be given by one with capacity, and can either be express or implied by custom, emergency, or P’s conduct. However, D must stay within the scope of the consent. Here,

Question 10

Defenses CNDDD - Necessity

Answer 10

Necessity is a defense to torts against property, and allows D to interfere with property of another if he reasonably believes it is necessary to avoid a greater harm. Private necessity is an incomplete defense and D must pay for the damaged property. Public necessity is an absolute defense and D is excused from damages. Here,

Question 11

Defenses CNDDD - Defense of Self

Answer 11

Reasonable force is allowed if the D has a reasonable belief a tort is being or about to be committed against him. Here,

Question 12

Defenses CNDDD - Defense of Others

Answer 12

Reasonable force is allowed to protect a victim who would have been able to use self-defense if the tort is in fact being committed or about to be committed against the victim. Here,

Question 13

Defenses CNDDD - Defense of Property

Answer 13

Reasonable non-deadly force is allowed if D has a reasonable belief that a tort is being or about to be committed on his property. Here,

Question 14

Defamation

Answer 14

Defamation is 1) a defamatory statement, 2) of or concerning the P, 3) published to a third party, that 4) causes injury to the P’s reputation. The defenses to defamation are truth, consent, and privilege (absolute and qualified).

Question 15

Defamation - Defamatory Statement

Answer 15

A defamatory statement must be an allegation of FACT that would tend to lower P’s reputation within the community. Here,

Question 16

Defamation - Of or Concerning P

Answer 16

The statement must identify the P, or a reasonable person must know the statement is about the P. A group of people can be identifiable depending on its size. A dead person cannot be defamed. Here,

Question 17

Defamation - Published

Answer 17

A publication occurs when it is communicated to a third party who UNDERSTANDS it. Here,

Question 18

Defamation - Damages

Answer 18

General damages are presumed if the defamatory statement is written/recorded (libel) or if a spoken statement is within the slander per se categories of statements about P’s 1) profession/business, 2) loathsome disease, 3) unchaste woman, or 4) moral turpitude. Here,

Question 19

Matter of Public Concern - Constitutional Defense

Answer 19

Whenever the defamatory statement is regarding a matter of public concern, the P must prove the additional elements of falsity and fault. Here,

Question 20

Matter of Public Concern - Constitutional Defense: Falsity

Answer 20

P has the burden to prove the statement was actually false by clear and convincing evidence. Here,

Question 21

Matter of Public Concern - Constitutional Defense - Fault

Answer 21

The type of fault that P must prove depends on whether P is a private or public figure. A public figure is one who achieves fame or notoriety or is in government office. Here,

If P is a public figure, the P must show actual malice, meaning D had actual knowledge that the statement was false or was reckless in not knowing that the statement was false. Here,

If P is a private figure, the P must only show D was negligent in not knowing the statement was false. Here,

Question 22

Def Defense: Consent

Answer 22

Consent is a complete defense to defamation. Here,

Question 23

Def Defense: Truth

Answer 23

Where P does not need to prove the element of falsity, then D may prove truth as a complete defense. Here,

Question 24

Def Defense: Absolute Privilege

Answer 24

Government officials have an absolute privilege that protects statements made in their official capacity. Here,

Question 25

Def Defense: Qualified Privilege

Answer 25

A D's liability for defamatory statement is limited if the purpose of the speech is to promote truthfulness.(credit reports, letters of recommendation, employment reference, etc.) Here,

Question 26

Privacy: Commercial Misappropriation of Name/Likeness

Answer 26

Misappropriation is the use of P's name or likeness for commercial purposes without P's consent. However, there is a newsworthiness exception allowing the use of a name or likeness for the purposes of reporting the news. Here,

Question 27

Privacy: False Light

Answer 27

False light is the widespread publication of a material misrepresentation or falsehood about P that was highly offensive to a reasonable person. This includes a mischaracterization of P's views, beliefs, or conduct. If the matter is of public concern, D must have actual malice or reckless disregard for the truth of the matter publicized. Here,

Question 28

Privacy: Intrusion of Privacy

Answer 28

Intrusion of privacy is the intentional intrusion upon a P's physical zone of privacy or private affairs in a manner that would be highly offense to a reasonable person. Publication is not necessary, however, P must have a reasonable expectation of privacy in the place where the intrusion occurred. Here, (look out for public place)

Question 29

Privacy: Public Disclosure of Private Facts

Answer 29

PDPF is the disclosure of P's private information that would be highly offensive to a reasonable person. D avoids liability if the private facts are newsworthy or are a public interest. Here

Question 30

Privacy: Defenses

Answer 30

The defenses of consent and privileges (false light and disclosure) are valid for privacy torts. Here,

Question 31

Negligence

Answer 31

Negligence requires a showing of 1) duty, 2) breach, 3) causation, and 4) damages.

Question 32

Duty

Answer 32

A general duty of care is owed to all reasonably foreseeable Ps. Under majority view, this duty extends to all P's within zone of danger. Under minority view, this duty extends to anyone. Here,

Question 33

Standard of Care - Reasonable Person

Answer 33

The general duty of care is to act as a reasonably prudent person under the same or similar circumstances. Here,

Question 34

Standard of Care - Professionals

Answer 34

A professional is expected to act with the care of an average member of the profession in good standing in his community. However, specialists are held to a national standard of care. Here,

Question 35

Standard of Care - Children

Answer 35

A child must act as a reasonable child of the same age, intelligence, and experience, unless the child is engaged in an adult activity, then the RPP standard applies. Children under 5 owe not duty of care. Parents have a duty to control children if there is knowledge of misbehavior. Here,

Question 36

Standard of Care -Negligence Per Se

Answer 36

An existing statute may establish the standard of care so long as P is within the class of people the statute was designed to protect, and P suffered the type of harm the statute was designed to prevent. Here, However, D is excused from violation of a statute if 1) compliance with the statute would have resulted in a harm greater than the harm produced by violation of the statute, or 2) compliance with the statute would have been impossible. Here,

Question 37

Standard of Care - Common Carriers/Innkeepers

Answer 37

Common carriers and innkeepers are held to a higher standard of care and are liable for even slight negligence towards passengers or guests. Here,

Question 38

Standard of Care - Adults w/Disabilities

Answer 38

Disabled adults are expected to act as a reasonable person with the same disability or diagnosis. Here,

Question 39

Duty to Rescue

Answer 39

D has not duty to rescue unless: 1) D has a special relationship with the victim, 2) D has a contractual obligation to save, 3) D created the peril, or 4) D has voluntarily undertaken the rescue. Here,

Question 40

Standard of Care - Landowners: Unknown Trespasser

Answer 40

Owners and occupiers of land do not owe a duty of care to unknown trespassers, however, they may have a duty of care for anticipated trespassers and child trespassers. Here,

Question 41

Standard of Care - Landowners: Anticipated Trespassers

Answer 41

Where an owner has reason to believe trespassers are on his land, he has a duty to warn of or make safe any manmade, known concealed dangers that could cause serous injury. Here,

Question 42

Standard of Care - Landowners: Child Trespassers Attractive Nuisance

Answer 42

A landowner owes child trespassers a duty to avoid reasonably foreseeable risk of harm caused by artificial conditions. To prevail on this theory, P must show that 1) there is a dangerous condition on D's land, 2) D knew that children were frequent in the area, 3) the condition is likely to cause injury because of the child's inability to appreciate the risk, and 4) the expense of remedying the situation is slight compared to the magnitude of the risk Here,

Question 43

Standard of Care - Landowners: Licensee

Answer 43

A licensee is one who enters the land with owner's permission (social guests). The landowner has a duty to warn or make safe any known dangers on the land. Here,

Question 44

Standard of Care - Landowners: Invitee

Answer 44

An invitee is one who enters the land with owner's permission and for owner's commercial benefit. The landowner owes the invitee a duty to make reasonable inspection of the property and repair all known dangers. An invitee may exceed scope of invitation by entering unpermitted spaces. Here,

Question 45

Breach

Answer 45

D breaches his duty when his conduct falls short of the standard of care owed to P. Here,

Question 46

Breach - Res Ipsa Loquitur

Answer 46

RIL doctrine is applied if P cannot establish a breach of duty, but the accident would only occur with negligence and D had exclusive control of the instrument causing hte injury. Here,

Question 47

Breach - Negligence Per Se

Answer 47

Violation of a statute is negligence per se, meaning P must only prove causation and damages. Here,

Question 48

Actual Cause

Answer 48

D's conduct will be the actual cause of P's injury if the injury would not have occurred "but for" the alleged breach of duty. Here,

Question 49

Actual Cause - Substantial Factor Test

Answer 49

If there are simultaneous joint causes for P's injury, but any cause alone would have been sufficient to cause the injury, then courts will apply substantial factor test and both D's will be jointly and severally liable. Here,

Question 50

Actual Cause - Alternative Cause

Answer 50

If two D's acted negligently, but it's uncertain which act caused the injury, the burden will shift to the D to prove they are not liable. Otherwise, both D's will be jointly and severally liable. Here,

Question 51

Proximate Cause

Answer 51

In addition to being the actual cause, P must prove his injury is a foreseeable result of D's conduct. Intervening forces that are foreseeable will not break the chain of causation. Direct natural reactions to the D's negligence are also foreseeable. However, if the intervening force is unforeseeable such as a crime or intentional tort of a 3rd party, this will cut the chain of causation for D. Here,

Question 52

Damages

Answer 52

P must prove actual damages. Here,

Question 53

Damages - Eggshell Plaintiff

Answer 53

D takes his P as he finds him and is liable for the full extent of P's injuries, regardless of whether or not the extend of the injury is surprising in scope. Here,

Question 54

Punitive Damages

Answer 54

Punitive damages are ONLY meant to punish the D for his reckless, malicious, or wanton conduct. Here,

Question 55

Neg Defenses: Contributory Negligence

Answer 55

In a contributory negligence jurisdiction, P is completely barred from recovery if D establishes that P's negligence contributed to her injuries. Here,

Question 56

Neg Defenses: Contributory Negligence - Last Clear Chance

Answer 56

P can rebut D's contributory negligence claim be alleging D had the last clear chance to avoid the injury-causing accident. Here,

Question 57

Neg Defenses: Comparative Negligence

Answer 57

In a pure comparative negligence jurisdiction, D can reduce his liability by the percentage of P's own negligence that caused injury. In a partial comparative jurisdiction, the P must be less than 50% at fault, and if so, damages are allocated according to percentage of fault. Here,

Question 58

Neg Defenses: Assumption of the Risk

Answer 58

P cannot recover if P either expressly or impliedly assumed the risk of injury. P must have known of the risk and voluntarily assumed it. Here,

Question 59

Negligent Infliction of Emotional Distress

Answer 59

P may recover for emotional distress resulting from D's negligence, but ONLY IF P's emotional distress gives rise to some physical manifestation. NIED requires that 1) D's negligence nearly caused P physical harm, 2) P suffers severe emotional distress, 3) P exhibits some physical manifestation of her emotional distress. Here,

Question 60

NEID Bystander Claims for Emotional Distress

Answer 60

A bystander closely related to a person physically injured or killed by D's conduct may recover for emotional distress. P must show 1) D's conduct caused a serious bodily injury or death to family member or very close friend, 2) P was present when the injury occurred and observed the injury, and 3) P suffered severe emotional distress. However, no physical manifestation is required. Here,

Question 61

Strict Liability

Answer 61

Strict Liability torts do not require proof of negligence, rather P must only prove causation and damages. SL applies to involvement in abnormally dangerous activities or if someone is harmed by D's animal.

Question 62

SL - Abnormally Dangerous/Ultra Hazardous Activities

Answer 62

Those engaged in abnormally dangerous activities are SL for any injuries resulting from those activities. An activity is "abnormally dangerous" if: 1) the activity imposes a severe risk of harm, 2) it cannot be made reasonably safe, and 3) the activity is uncommon in the community. P must be injured by the ultra-hazardous activity, or fleeing from the ultra-hazardous activity, and not merely be one engaged in the activity. Here,

Question 63

SL - Domestic Animals

Answer 63

Domestic animal owners are SL for injuries ONLY if they know of their animal's dangerous propensities. i.e. the one-bite rule. However, domestic animal owners are SL for all reasonably foreseeable damage resulting from their animal's trespass onto another's property. Here,

Question 64

SL - Wild Animals

Answer 64

Wild animal owners are SL for injuries caused by their wild animals. This includes any injury suffered while fleeing a wild animal. However, trespassers are generally not entitled to recovery under SL. Here,

Question 65

Products Liability

Answer 65

Merchants may be SL, or liable in negligence, for the products they place in the stream of commerce.

Question 66

Strict Products Liability

Answer 66

A merchant who places a product in the stream of commerce may be SL for injuries caused. To prevail on SL cause of action, P must show 1) D is a merchant, 2) product was defective, and 3) defective product was the actual and proximate cause of P's injuries. Here,

Question 67

Strict Products Liability - Merchant

Answer 67

A merchant can be a manufacturer, retailer, or distributor who routinely deals in the type of goods sold (not services). No contractual privity is required between the merchant and P as long as the merchant placed the product in the stream of commerce. Casual sellers are not SL. Here,

Question 68

Strict Products Liability - Defective Product

Answer 68

P must prove there was a manufacturing defect, design defect, or inadequate warning. Here,

Question 69

Strict Products Liability - Defective Product: Manufacturing Defect

Answer 69

A manufacturing defect occurs when a product emerges from manufacturing different and more dangerous than other products made properly. One way to prove a manufacturing defect is if the product failed to perform as safely as an ordinary consumer would expect. Here,

Question 70

Strict Products Liability - Defective Product: Design Defect

Answer 70

A design defect occurs when a product has a feasible alternative design that could have been made safer without a serious impact on the product's price or liability. Here,

Question 71

Strict Products Liability - Defective Product: Inadequate Warnings

Answer 71

An inadequate warning occurs when a manufacturer fails to give adequate warnings about an unapparent risk involved in using the product. Here,

Question 72

Strict Products Liability - Defective Product: Government Safety Standards

Answer 72

Noncompliance with government product safety standards establishes the product is defective, but compliance is not conclusive proof the product is not defective. Here,

Question 73

Strict Products Liability - Actual Cause

Answer 73

P must show the defect existed when product left D's control. Here,

Question 74

Strict Products Liability - Proximate Cause

Answer 74

P must show type of injury suffered was foreseeable at the time the product was placed in the stream of commerce. P's misuse of the product can be foreseeable. Here,

Question 75

Strict Products Liability - Damages

Answer 75

The consumer must have actually suffered damages. Here,

Question 76

Strict Products Liability - Defenses

Answer 76

P may be denied recovery if she assumed the risk of any damages caused by D's product. P must have known the risk and voluntarily proceeded in face of risk. Also, Contributory/Comparative negligence is a defense.

Question 77

Negligence in Products Liability

Answer 77

In order for P to prevail in a negligence product liability cause of action, P must show duty, breach, causation, and damages. Here,

Question 78

Neg Products Liability - Duty

Answer 78

A duty of care is owed to all foreseeable P's. A foreseeable P is anyone in the zone of danger. Users of products, bystanders, and consumers of the product are all foreseeable Ps. Privity with the D is NOT required. All foreseeable P's are owed a standard of care of that of a reasonably prudent manufacturing company. Here,

Question 79

Neg Products Liability - Breach

Answer 79

Breach is shown when D's negligence leads to the supplying of a defective product. However, retailer and wholesalers satisfy due care by a cursory inspection of the product. Here,

Question 80

Neg Products Liability - Actual Cause

Answer 80

P must show the defect existed when product left D's control. Here,

Question 81

Neg Products Liability - Proximate Cause

Answer 81

P's misuse of the product can be foreseeable. Further, a retailer's failure to discover a defect does not supersede the original manufacturer's negligence unless the wholesaler's conduct exceeds ordinary foreseeable negligence. Here,

Question 82

Neg Products Liability - Damages

Answer 82

Physical or property damages must be shown in order to recover. Here,

Question 83

Implied Warranty of Merchantability

Answer 83

Implied in every sale of goods is a warranty that the goods are fit for their ordinary purpose. Here,

Question 84

Implied Warranty of Fitness for a Particular Purpose

Answer 84

If the seller knows or has reason to know the buyer will use the product for a particular purpose, and the buyer relies on the seller's skills or judgment, then the sale implies that the goods are fit for that purpose. Here,

Question 85

Express Warranty

Answer 85

An express warranty is when the seller makes a factual statement about the characteristics of the goods that becomes part of the basis of the bargain. The seller may be liable if a product falls short of an express warranty made by the seller. Here,

Question 86

Misrepresentation

Answer 86

A seller will be liable for misrepresentation if a statement of a material fact is made concerning the quality or uses of goods and the seller intended the statement to induce reliance by the buyer. Mere puffery is not sufficient. Here,

Question 87

Vicarious Liability: Respondeat Superior

Answer 87

An employer is responsible for the tortious acts of their employees if the tort was committed within the scope of their employment. Employers are usually not responsible for the intentional torts of their employees unless their job duties include use of force (bouncers). Here,

Question 88

Vicarious Liability: Independent Contractor

Answer 88

Generally, the principal is not liable for the acts of an independent contractor unless: 1) the contractor was engaged in an inherently dangerous activity, or 2) the duty now non-delegable by the principal. Here,

Question 89

Vicarious Liability: Partner or Joint Venture

Answer 89

Each partner is vicariously liable for any other partner's torts committed within the scope of the partnership. Here,

Question 90

Vicarious Liability: Driver/Owner of Automobile

Answer 90

Under common law, owner of an automobile is not vicariously liable for the tortious acts of the driver. However, under modern law, an owner may be held liable if his...

Question 91

Vicarious Liability: Parent/Child

Answer 91

Parents are generally not liable for the torts of their children. However, a parent may be held separately negligent if they had reason to know of a child's propensity to injure or the parent's conduct facilitated the child's tort (i.e. leaving a gun out). Here,

Question 92

Vicarious Liability: Tavern Keeper

Answer 92

Businesses serving alcohol may be held liable if a P is injured by an intoxicated patron if the business was negligent in serving the patron alcohol. Here,

Question 93

Joint and Several Liability

Answer 93

J/S liability arises if the acts of two or more D's combine to produce a single injury. Each D is jointly and severally liable for the entire harm if his individual act was a substantial factor in bringing about P's injury. Here,

Question 94

J/S Liability: Contribution

Answer 94

A D who pays more than her share of the damages under J/S liability can assert a claim against other liable parties for the excess paid. Contribution is usually imposed in proportion to relative fault. Here,

Question 95

J/S Liability: Indemnity

Answer 95

Indemnity is the shifting of the loss between and amongst Ds. It is available by contract, in vicarious liability situations, or under strict products liability. Here,

Question 96

Wrongful Death

Answer 96

A spouse can also bring wrongful death claim on behalf of estate. At common law, a tort action abated at the death of the victim. However, most states now have "survival acts" allowing a victim's cause of action to survive and permits recovery of all damages from time of injury to time of death. Recoverable damages are medical bills, funeral expenses, lost wages, damages for pain and suffering. Here,

Question 97

Immunities

Answer 97

Parent/child immunity - suits between parents and un-emancipated minor children Spousal immunity - most states have abolished Charitable immunity - nonprofits, schools, museums (most states have abolished) Government immunity - for discretionary functions. Policy making decisions, allocation of money

Question 98

Malicious Prosecution

Answer 98

To establish a prima facie case for malicious prosecution, P must show that 1) the institution of criminal proceedings against P, 2) termination of proceedings in favor of P, 3) D had no probable cause for the original proceeding, 4) D had an improper purpose in initiating the proceeding, and 5) damages. Here,

Question 99

Abuse of Process

Answer 99

Abuse of process arises when D uses the legal system as an ulterior purpose to threaten or act against P. P must show 1) wrongful use of process for an ulterior purpose, 2) a definite act or threat against P to accomplish an ulterior motive, and 3) damages. Here,

Question 100

Tortious Interference with Contract

Answer 100

P must show: 1) P has a valid contract or business relationship, 2) D has knowledge of the contract or relationship, 3) D intentionally interferes with that relationship, 4) D's interference causes a breach or termination of the contract, and 5) damages. Here,

Question 101

Intentional Misrepresentation (Fraud)

Answer 101

Intentional misrepresentation requires a showing of: 1) affirmative misrepresentation of a material fact, 2) knowledge that the misrepresentation is false, 3) intent to induce P to act or refrain from acting in reliance on the misrepresentation, 4) actual and justifiable reliance by P, and 5) damages. Here,

Question 102

Negligent Misrepresentation

Answer 102

Negligent misrepresentation requires a showing of: 1) a misrepresentation by D concerning a past or existing material fact, 2)_ that breaches the duty of care owed to P, 3) D has no reasonable grounds to believe the statement is true, 4) actual and justifiable reliance by P, and 5) damages. Here,

Question 103

Nuisance

Answer 103

Tortious invasion of either public or private property rights. Nuisance is a harm caused by tort, not a tort itself.

Question 104

Public Nuisance

Answer 104

A public nuisance is the unreasonable interference with health, safety, or property rights of the community at large. The G usually brings these suits. Here,

Question 105

Public Nuisance - Special Damages

Answer 105

For a private individual to bring this type of suit, they must show some sort of "special damage" beyond that of what the public in general is suffering. Here,

Question 106

Private Nuisance

Answer 106

A private nuisance is a substantial and unreasonable interference with another individual's use and enjoyment of her property. Here,

Question 107

Private Nuisance - Substantial Interference

Answer 107

The interference must be offensive, annoying, or inconvenient to the average person in the community. Here, (look out for sensitivities)

Question 108

Private Nuisance - Unreasonable Interference - Balancing

Answer 108

Severity of P's injury must outweigh the utility of D's conduct. Here,

Question 109

Coming to the Nuisance

Answer 109

A P cannot recover if he "came to the nuisance" for the sole purpose of bringing suit. Here,