Intentional Torts
State the elements for Battery and Assault.
Battery: ∆ causes harmful or offensive contact with π’s person or something closely connected to π.
Assault: ∆ intentionally causes π to be in reasonable apprehension of an imminent harmful or offensive contact.
State the elements for negligence.
Duty, Breach, proximate and actual cause, and damages.
Define a trespasser and the duty owed to them.
Enters ∆’s land without express or implied consent of land possessor. Duty to avoid infliction of willful or wanton harm.
List the 2 scenarios when strict liability applies. (note not products liability yet)
Possession of Animals: (1) liable for wild animal regardless of how dangerous activity is; (2) 1 bite rule for dogs or if on notice prior to first bit.
Abnormally Dangerous Activities: (1) There is a high risk of serious harm to others; (2) ∆ cannot engage in the activity without risk, and cannot eliminate the risk with care; and (3) It is not a commonly undertaken activity in the community.
When is lethal force appropriate?
Only when met by lethal force. It must be reasonable in relation to the threat.
State the elements for IIED and NIED and the difference between them
IIED: ∆ engages in an intentional or reckless act amounting to extreme and outrageous conduct that causes π severe emotional distress.
NIED: ∆ engages in negligent conduct and, as a result, π suffers emotional distress that has some sort of physical manifestation
Intentional/Reckless Act v. Negligent Act
Describe what res ipsa loquitor is and its effect when proven.
Allows jury to infer ∆’s breach based on the nature of the accident and ∆’s relationship to it. Arises when π cannot precisely identify what ∆ did that was wrong, but the situation smells of negligence.
Only used to show breach. If successfully invoked, the jury can draw an inference as to breach.
Define a licensee and the duty that is owed to them.
Enters ∆’s land with ∆’s express or implied permission and are not there for a purpose benefiting ∆ or ∆’s activities, nor is the land held open to the public (social guest). ∆ must warn of known concealed dangers (just warn, not cure) that are not obvious.
Who are proper πs, ∆s, and contexts for a products liability case?
π: Any π who is a user, consumer, or bystander physically injured by a defective product.
Proper ∆: Commercial suppliers at all levels of the distribution chain and those in the market of selling the product – manufacturer, wholesaler, and retailer. Does not include occasional sellers and those supplying services.
Proper Context for Products Liability: Generally services alone are not enough. When both a product and services are present, the goods/product must dominate.
Name all the defenses to intentional torts
(1) Privileges
(2) Others (defense of others)
(3) Property (defense of property)
(4) Consent
(5) Authority (shopkeepers, arrest, privilege)
(6) Necessity
(7) Self-Defense
State the elements for False Imprisonment including, when damages are available
∆ intentionally causes π to be confined to a bounded area against π's will and π knows of the confinement or is injured by it.
If π knows of confinement can recover damages regardless of physical injury. If π is unaware of confinement, then must have an actual injury.
When does negligence per se apply, and what is its effect.
Where ∆’s conduct violates a statute that does not provide for civil liability, that statute can establish the standard of conduct for breach of duty purposes (ex: crim traffic law).
Applicable if: (1) π is member of a class the law is designed to protect; and (2) Injury caused by ∆’s conduct is the type the statute sought to protect.
If statute applies breach is shown, but still must prove causation and damages.
Define an invitee and the duty owed to an invitee.
Enters onto ∆’s land at ∆’s express or implied invite and for a purpose relating to ∆’s interest or activities (ex: shoppers in a store or patrons in museum). ∆ has duty to exercise reasonable care to prevent injuries caused by activities conducted on ∆’s land.
What are the theories for products liability claims?
Manufacturing Defect: Product is in a condition not intended by manufacturer and defect existed when leaving manufacturer’s hands.
Design Defect: Made as intended by manufacturer but still presents a danger of personal injury or property damage to π because of a flawed design. Apply either the Ordinary Consumer Expectation Test or Risk-Utility Balancing Test.
Warning: inadequate warning label or no label at all
What is the standard of care for a medical professional who is a general practitioner? specialist?
Physicians are required to possess and use the knowledge, skill, and training of other physicians in good standing in the relevant geographic community.
General Practice: Locality Standard
Specialist: National Standard
State the elements for Trespass to Chattel and Conversion, including what remedies you can get for each.
Trespass to Chattel: ∆ interferes with π’s chattel, causing damages. Requires proof of actual damages. Remedies include replevin, fair market rental value, cost of repair, and potentially punitive damages.
Conversion: Intentional act by ∆, where ∆ exercises dominion or control that causes the destruction of, or serious and substantial interference with, π’s chattel. Remedies include fair market value at the time the property was converted and/or replevin.
Describe actual cause and proximate cause.
Actual Cause: π shows that, it is more likely than not, that but for ∆’s negligence, π would not have been injured. Other reasons don’t matter.
Proximate Cause: Consider whether there is a policy reason to cut off liability. Ex. a superseding cause relieves the original tortfeasor of liability for lack of proximate cause.
Describe the attractive nuisance doctrine.
A heightened standard of care may apply as to artificial conditions on ∆’s land.
Even though the child is trespassing, if the below prerequisites are met, the child will be treated as an invitee. 5 factor test:
(1) Too young to appreciate the danger;
(2) ∆ knows, or has reason to know, of the trespass; (3) ∆ knows of the dangerous condition;
(4) Condition is artificial (fountain, pool, equipment that looks fun to climb on); and
(5) The risk of danger of the artificial condition outweighs its utility and burden to fix it.
What are defenses to products liability claims?
Misuse: π's use is not intended or foreseeable.
Alteration: Alteration or modification must occur between the time the product leaves the manufacturer’s control and the time of π’s injury.
Assumption of the Risk: Where π has used the product with knowledge of the risk.
Explain the differences between contributory negligence and comparative fault.
∆ has the burden of claim and proving π's actions were unreasonable & fell below the RPP standard.
Contributory Negligence: Any fault by π bars recovery.
Comparative Fault: π recovers regardless of how much at fault. Pure comparative fault is where joint and several liability applies. Minority rule is that π may only recover if less at fault than ∆.
State the rule for private nuisance, the 5 elements the judge considers, and the remedy that is available.
A thing or activity that substantially and unreasonably interferes with π’s use and enjoyment of π’s land.
Court considers: (1) Value of D’s activity; (2) Whether there are alternatives; (3) Nature of locality; (4) Extent of P’s injury; and (5) Who was there first?
Damages: injunctive relief (equitable relief)
What types of damages are available in a negligence suit?
(1) Compensatory: the type of damages must be foreseeable (not the extent of damages); must be reasonably certain; and not avoidable.
(2) Nominal damages are not available.
(3) Punitive damages are not available for pure negligence, more required.
When is a landlord liable to a tenant?
Landlord is not liable unless:
(1) Common areas over which LL retains control;
(2) Negligent repairs;
(3) At time of lease, LL knows of a concealed dangerous condition; or
(4) LL knows that T is going to hold property open to public.
When there is only damage to the product and not any of property or people, what type of claim should be brought?
Breach of warranty - not products liability claim. Products liability claim does not allow for recovery for damage to the product.
Explain the types of compensatory damages. Hint there are 2 categories.
Special Damages: Pecuniary medical costs, lost wages, and cost of repair. Can recover past, present, and future damages; however, future damages will be reduced to present value.
General Damages: Generally, pain & suffering. More controversial because these damages are intangible and difficult to measure.