Torts

Question 1

Battery

Answer 1

1) Harmful/offensive contact

2) With P’s person

Question 2

Assault

Answer 2

1) Reasonable apprehension (knowledge)
2) Of immediate battery
NB: Words alone lack immediacy

Question 3

False imprisonment

Answer 3

1) Act of restraint

2) Confinement in a bounded area

Question 4

Intentional Infliction of Emotional Distress

Answer 4

1) Outrageous conduct
"Exceeds all bounds of decency tolerated in a civilized society"
2) Severe mental distress
Look for:
repetitive/continuous conduct
common carrier/innkeeper
fragile class (elderly, children)
Targeting of P's known sensitivities

Question 5

Trespass to chattel and conversion

Answer 5

1) Physical harm to chattel or deprivation of possession
Conversion: recover FMV of chattel (rather than cost of repair
Mistake as to ownership does not insulate form liability

Question 6

Affirmative defenses to intentional torts

Answer 6

1) Consent
2) protective privileges:
- -self-defense
- -defense of others
- -defense of property
3) Necessity: only for property torts

Question 7

Affirmative defense: consent

Answer 7

1) P's legal capacity
NB: Children can consent to age-appropriate activities
2) Express consent: written or oral
NB: Look out for fraud/duress
3) Implied consent
--customary practice
--D's reasonable interpretation of P's objective conduct
NB: Look to scope of consent

Question 8

Protective privileges: self-defense, defense of others, defense of property

Answer 8

1) In progress or imminent
2) Reasonable belief that threat is genuine
3) Only force necessary to respond to threat (proportionality)

NY RULE: No duty to retreat from own home before using deadly force

Question 9

Necessity

Answer 9

1) Only property torts
2) Public necessity
3) Private necessity
- -D liable for compensatory damages
- -Right of sanctuary as long as emergency continues

Question 10

Bailments

Answer 10

1) Surrender possession for limited time and limited purpose
2) Bailee owes duty of care for item to bailor
NB:
–Item within another if typical
–Safe deposit boxes: bank bailee for all contents
–Garages: Bailee if you leave key
–Coat check: but no bailment when you put your coat on a hook

Question 11

Elements of Defamation

Answer 11

1) Defamatory statement that specifically identifies plaintiff
2) Publication of statement

Question 12

Libel (definition and damages)

Answer 12

Written or recorded defamatory statement

Damages presumed

Question 13

Slander (definition and damages)

Answer 13

Spoken defamatory statement
Have to prove economic harm UNLESS 
slander per se (damages presumed)
--Related to P's business/profession
--Crime of moral turpitude
--Imputing on woman's chastity
--P suffers from loathsome disease

Question 14

Defenses to defamation

Answer 14

1) Consent
2) Truth (D has burden)
3) Absolute privileges
- -spousal communication
- -officers of government in conduct of official activities
- -media in accurate reporting of public proceedings
4) Qualified privileges (recommendations, statements to police)
- -Reasonable basis to believe it’s true
- -Confined to relevant topics
5) Special case: matter of public concern
- -P must prove falsity
- -P must prove stament made with (knowledge of falsity/reckless disregard for truth)
- -Private person P will win if they show negligence

Question 15

Absolute privileges in defamation

Answer 15

• -spousal communication
• -officers of government in conduct of official activities
• -media in accurate reporting of public proceedings

Question 16

Defamation: Matter of public concern

Answer 16

Two extra elements:

• -P must prove falsity
• -P must prove stament made with (knowledge of falsity/reckless disregard for truth)
• -Private person P will win if they show negligence

Question 17

Qualified privileges in defamation

Answer 17

Recommendations, statements to police

• -Reasonable basis to believe it’s true
• -Confined to relevant topics

Question 18

Privacy

Answer 18

1) Appropriation (ONLY ONE IN NY): D uses P’s name/image for commercial advantage
- -News-worthiness exception
2) Intrusion: Invasion of seclusion, highly offensive to average person
3) False light: major falsehood, highly offensive
4) Disclosure: confidential info, highly offensive
- -News-worthiness exception

Affirmative defenses: consent and, for false light/disclosure, absolute/qualified privileges

Question 19

Fraud

Answer 19

1) Misrepresentation of facts (no fraud through silence)
2) Intentional or reckless
3) Intention to induce reliance
4) Justifiable reliance by P
5) Economic damages

Question 20

Malicious prosecution

Answer 20

1) Criminal or civil proceeding w/o probable cause
2) P prevails
3) No proper purpose

Question 21

Prima facie tort

Answer 21

Intentionally inflicting economic harm with no proper purpose

Question 22

Inducing breach of K

Answer 22

1) Existence of valid K btw P and X
2) Knowledge of K by D
3) Persuasion of X to abandon deal
4) Subsequent breach
Privilege: special (advisory) relationship btw D and X

Question 23

Theft of trade secret (NY ONLY)

Answer 23

1) Valid trade secret
- -Provides possessor with business advantage
- -Not generally known
- -Owner takes reasonable means to keep secret
2) Taken by D through improper means
- -Traitorous insider breaching duty of confidentiality
- -Industrial spy
- -Bribery of employee

Question 24

Negligence (duty)

Answer 24

Duty to exercise amount of care exercised by a reasonably prudent person under similar circumstances.
Duty is owed to foreseeable victims of carelessness (“zone of danger”) and rescuers “danger invites rescue”

Question 25

Negligence--fetus (NY ONLY)

Answer 25

Negligent impact to body of pregnant woman - -If child born with injuries caused by impact, child will have cause of action. - -Miscarriage/stillbirth: no claim in child's name - -Misdiagnosis of defect: Parents can recover cost of caring for child after born but nor for emotional distress - -Botched sterilization: No recovery for pregnancy/birth

Question 26

Negligence--specific attributes

Answer 26

Generally, standard of care is blind to subjective attributes of defendant, EXCEPT: - -superior knowledge/skill: reasonable person with superior knowledge/skill - -Relevant attributes: blindness/very tall

Question 27

Special duties--children

Answer 27

--Under 5: No duty of care --5-18: Hypothetical child of similar age, experience, and intelligence acting under the circumstances (subjective) UNLESS child is engaged in adult activity (operating motor vehicle)

Question 28

Special duties--professional malpractice

Answer 28

--Duty to exercise skill and knowledge normally possessed by members of that profession in good standing in similar communities (empirical standard)

Question 29

Special duties--possessor of property to entrant

Answer 29

1) Undiscovered trespasser: No care due 2) Discovered/anticipated trespasser: known, manmade death traps 2) Licenses (social guests): all known traps 3 Invitees (customers): reasonably knowable traps