Untitled Quiz

Torts Final Exam Review

• The review covers material for a Torts final exam.
• Contact information for instructors is provided.
• Office hours are scheduled for Monday 1 PM, and Wednesday 4 PM
• Last tutoring session is scheduled with Prof. Lauriat. Students should bring their sample answers.
• Important dates are listed:
  • Last Day of Classes (for Torts): Thursday, November 21, 2024
  • Professor Lauriat answering questions via email/Zoom: Monday, November 25, 2024
  • Reading Day: Tuesday, November 26, 2024
  • Thanksgiving break: November 27-29, 2024 (No tutoring/office hours)
  • Last day for questions of Jonah: Friday, November 29, 2024
  • Last day for questions of Nusaybah: Saturday, November 30, 2024
  • Torts Final: Tuesday, December 3, 2024, 8 AM -12 PM, Lanier.

Supplemental Materials (Optional)

• Recommended materials:
  • A Short and Happy Guide to Torts
  • Strategies & Tactics for the MBE (Second Edition)
• Other suggestions:
  • West Academic Study Aids
  • ExamPro (practice questions)
  • Barbri 1L Mastery
  • Quimbee
  • Gilbert
  • Examples & Explanations
  • The Perfect Practice Exam: The Skill of Legal Analysis
  • Themis
  • Kaplan

Miscellaneous

• Review cases presented in PowerPoint (If it has 2+ slides).
• Note if a case is frequently mentioned.
• Case names, or identifiable description, is enough.
  • Avoid memorizing citations completely.
• The preferred method for final exam hypotheticals: Analyze law and fact (ALF).
• Keep answers concise.

Intentional Torts

• A flow chart is provided depicting intentional torts, negligence, and strict liability.

Intent

• Intent is objective
• Contextual perspective of the plaintiff is necessary.
• Intent should be evaluated considering what a reasonable person in the plaintiff's situation would think.

Single and Dual Intent

• Single Intent: The tortfeasor intended to make contact.
• Dual Intent: The tortfeasor intended the contact to be harmful or offensive.
• Single intent is easier to prove.
• Jurisdiction determines which form of intent is required.

Transferred Intent

• Transferred intent occurs when a defendant intends to harm one person but unintentionally harms another.
• Δ's intent to harm one person transfers to π.
• π can then establish the intent element.

Intentional Torts List

• Battery
• Assault
• False Imprisonment
• Trespass to Property (Chattel)
• Conversion
• Outrage (intentional infliction of emotional distress).

Battery

• Defendant's intent is to cause harmful or offensive contact to π's person.
• Elements:
  • Intent to bring about harmful or offensive touching to the π'ς person.
  • The ∆'s action caused harmful or offensive touching to the π'ς person.

Harmful or Offensive

• The objective standard refers to the touching that is likely to or capable of causing harm or offending a reasonable person.
• A touching is considered offensive if, in the context, it violates acceptable touching standards.
• An inoffensive touching may be considered offensive if the actor knew the victim was unusually averse to such contact.

Assault

• Intentional act that puts another person in reasonable apprehension of imminent harmful or offensive contact.
• Elements:
  • An act by Δ-causing reasonable apprehension of immediate/imminent harmful or offensive contact to π's person.
  • An intent by Δ to bring about apprehension of immediate/imminent contact with the π's person.

Terminology: Apprehension and Imminent/Immediate

• In the context of assault, reasonable apprehension refers to a person's reasonable belief that an act will result in imminent harmful or offensive contact in that context.
• A plaintiff doesn't have to feel fear; they just need to be aware that a contact might occur.
• Imminent or immediate means the harmful or offensive contact is likely to occur very soon.

False Imprisonment

• The act of restraint on another person that confines the person to a restricted area.
• Elements:
  • An act (or omission to act) by Δ that confines a π to a bounded area.
  • Δ's intent to confine or restrain π to a bounded area.
  • The π must be aware of his confinement, whereas inconvenience is not the same as confinement.
• Shopkeeper's Privilege is an affirmative defense.

Trespass to Land

• Occurs when an individual physically invades an owner's real property, or causes an item or a third party to invade the property.
• Elements:
  • An act of physical invasion of π's real property by ∆.
  • An intent to physically invade π's real property by ∆.
• Land can be the reasonable air above and ground below the surface level of the property.
• Light or smell is not considered tresspass
• Nuisance protects landowners right to use and enjoyment of land.

Conversion

• Occurs when a party takes another's chattel with the intent to deprive them of it.
• Elements:
  • An act by Δ interfering with π's right of possession in chattel.
  • Intent performed the act bringing about interference with the π's right of possession.
  • Injury or damages

Conversion Versus Trespass to Chattels

• Conversion occurs when Δ exercises "dominion and control" over chattel. Involves interference.
• Severe damage/destruction= conversion.
• Trespass to chattel occurs when Δ dispossesses another of the chattel or intermeddles with another's chattel
• Some damage/lost value = trespass to chattel.

Conversion (Common Fact Patterns)

• Specific fact scenarios that result in conversion are listed.
  • Stolen item
  • No title transferred
  • Stolen cash
  • No ability to transfer title
  • Item taken by fraud
  • Voidable title transferred
  • Damage to an item
  • Misuse of someone else's loaned property.

Outrage (Intentional Infliction of Emotional Distress) (IIED)

• Occurs when a specific person acts in a way that intentionally or recklessly causes another person to suffer severe emotional distress
• Elements:
  • ∆'s state of mind (i.e. intent)
  • Nature of conduct (outrageous)
  • Causal connection between ∆'s actions and π's emotional distress.
• Acts purposely or recklessly, so severe that it could affect one's mental health
• Consider degree of emotional distress
• Public officials not awarded damages for parody or satire

Defenses for Intentional Torts

• Consent
• Capacity for consent for an action
• Consent can be revoked
• The scope of consent
• Express consent
• Implied consent
• Affirmative defense
• Self-Defense
• Defense of Property/Others
• Necessity
• Private Necessity, Absolute Defense
• Public Necessity, Absolute Defense
• Common fact patterns: Fire, Quarantine Spreading disease, Natural disasters

Negligence

• Negligence is the failure to behave with the standard of care that a reasonable person would in the same circumstances.
• A person can sometimes be found negligent for their inaction if there is a duty to act Elements:
• Duty of care
• Breach-behaves negligently causing the breach of the duty
• Causation- breaching of duty caused the injury
• Damages-the π suffered damage to person or property

Special Duties

• Children-measured by other minors of similar age/experience/capacity and circumstances for similar situations
• Adult activity-held to the same standard of care as an adult but only if the minor is operating an automobile or something similar
• Custom (Industry Standard)
• Professional standard of care - Professional negligence=malpractice which occurs when a professional breaches duty of care to a client
• Common Types:
  • Medical Malpractice
  • Legal Malpractice

Duty of Care

• A general duty of care is imposed on all human activity.

• When a person undertakes an activity they now have a reasonable duty to care.

Reasonable Prudent Person Standard

• ∆'s conduct is measured against a reasonable prudent person under similar circumstances
  • Same physical characteristics as Δ
  • Average mental Ability
  • Same knowledge as average community member.

Learned Hand Formula

• A helpful analysis for evaluating negligence in specific factual situations.
• Burden < Probability x Loss

Social Utility

• Courts care about safety but also the utility of the activity.

United States v. Carroll Towing

• A landmark case for negligence.
• B < PL formula
• The probability of harm multiplied by the gravity of harm must be more than the burden of taking precautions for a party to be liable for negligence.

Res Ipsa Loquitur

• The thing speaks for itself.
• Use this situation where the fact that the injury occurred is evidence of negligence.
• π has to prove:
  • The injury wouldn't have occurred without negligence.
  • ∆ was in control of instrumentality
  • The π didn't contribute

Causation

• Cause in Fact, actual cause, but for cause:

  • The negligent act was the cause of injury

• Proximate cause - Limitation of liability

  • The result was a normal incident of or within the increased risk of the negligent act.

Alternative Liability (Joint & Several Liability)

• All defendants are liable for all damages if uncertainty exists about which defendant caused the harm.
• The burden of proof shifts onto the ∆.
• Each ∆ must prove that their negligence did not cause the harm.

Market Share Liability

• A doctrine in products liability that apportions liability to businesses for the sale of a product, based on their percentage of that product in the entire market.
• A narrow set of circumstances.

Proximate Cause

• Δ is liable for harmful results as normal incidents of increased risk of their acts.
  • Foreseeability of danger is necessary to render conduct negligent.
  • Proximate cause limits the liability.

Eggshell Skull Rule

• Δ is liable for all damages, even aggravation of existing conditions
  • Δ takes π as ∆ finds them.

Foreseeability

• Foreseeability asks if a person could or should reasonably have foreseen the harm resulting from their actions

Intervening Causes

• An event that occurs after a party's improper action that breaks the chain of causation.

• A superseding force breaks the causal connection between the negligent act and the ultimate harm

• Common Forseeable Causes:

  • Subsequent medical malpractice/negligence of rescuers/subsequent accidents

• Grady Categorization of Intervening Conduct:

  • No Intervening Tort
  • Dependent Compliance Error
  • Encouraged Free Radicals
  • No Corrective Precautions
  • Independent Intervening Tort

Defenses to Negligence

• Contributory negligence, comparative negligence
• Assumption of Risk - Express, Implied Primary, Secondary

Contributory Negligence

• A common law rule in tort that bars a plaintiff's claim if their negligence contributed to their damages.

Last Clear Chance Doctrine

• An exception to contributory negligence. A negligent π may still recover if Δ had the last opportunity to avoid the accident.

Comparative Negligence

• A principle used to reduce the amount of damages a π can recover. Percentage of negligence attributed to the parties.

Assumption of Risk

• A π's inability to recover for the negligent actions of others because the π voluntarily accepted the risk of those actions.
• Primary and secondary

Express Assumption of Risk

• Risk is assumed by express agreement. A π who agrees to accept harm resulting from ∆'s negligence does not have a claim unless agreement is invalid (not enforceable).
• Look out for Hidden exculpatory clauses and Exculpatory clauses with broad coverage.
• Tunkl Test: Used for evaluating agreements.

Primary Assumption of Risk

• ∆ had no duty of care to π because the risk was inherent to the activity (not considered negligent)).
• Example: Participating in sporting events.

Secondary Assumption of Risk

• Δ had a duty to π, and π voluntarily accepted the risk ■ Evaluated as comparative negligence.

Privity Limitation

• Limits a party's duty of care owed only for foreseeable parties.
• e.g., A pedestrian struck by an automobile with defective brakes.
• Look for identifiable plaintiff.

Pure Economic Loss

• A third party who suffers only economic loss because of another's negligence can not recover damages in a tort action
• General rule is that a duty is owed only if a business transaction benefits this party
• Exception to the general rule.

Damages

• Damages are the money granted for injuries
  • General: Compensatory, nominal, punitive, statutory, liquidated
  • Types of compensatory damages
    • Lost Wages/Earnings
    • Pain and suffering, Humiliation, Recovery
    • Medical Expenses
• Prejudgment Interest
  • Compensation calculated to reflect loss from date of injury to the date it was recovered