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Questions and Answers

What distinguishes conversion from trespass to chattel?

Conversion involves minor damages to a chattel.

Conversion requires complete destruction or severe damage to the chattel. (correct)

Trespass to chattel is about exercising dominion over chattel.

Trespass to chattel requires intent to permanently deprive the owner.

Which element is NOT required for proving intentional infliction of emotional distress (IIED)?

The outrageous nature of the defendant's conduct.

A direct injury to physical property. (correct)

Defendant's intent or state of mind.

The severity of the distress suffered by the plaintiff.

Which of the following actions could be considered conversion?

Using a friend's car without permission for a short trip.

Misusing a borrowed lawnmower for a personal project.

Temporarily holding onto a non-living item without intent to steal.

Completely destroying someone else's borrowed cell phone. (correct)

What is a defining characteristic of trespass to chattel?

It involves slight damage or intermeddling with someone else's property. Signup and view all the answers

In which scenario might consent be revoked?

Consent initially given but later communicated verbally or through actions. Signup and view all the answers

When can a public figure not recover damages for intentional infliction of emotional distress?

When the publication is made without actual malice. Signup and view all the answers

What is an example of express consent?

A client signs a contract for services explicitly stating the terms. Signup and view all the answers

Which of the following situations constitutes misuse of an item that could lead to trespass to chattel?

Using a loaned item for a different purpose than agreed upon. Signup and view all the answers

What does scienter refer to in criminal law?

A defendant's knowledge of wrongful conduct Signup and view all the answers

In strict liability cases, which element is NOT required?

Intentional conduct Signup and view all the answers

What type of animals fall under the category of ferocious beasts?

Tigers and lions Signup and view all the answers

What is the focus of inquiry regarding liability for domestic animals?

The owner's knowledge of the animal's propensity for harm Signup and view all the answers

Which of the following describes an abnormally dangerous activity?

An activity that can cause significant harm even with reasonable care Signup and view all the answers

Which of the following criteria is NOT part of the two-part test for abnormally dangerous activities?

Is known to be widely used across communities Signup and view all the answers

What constitutes physical harm under strict liability for abnormally dangerous activities?

Both bodily harm and property damage Signup and view all the answers

What can influence public policy considerations related to strict liability?

The commonality of the activity in society Signup and view all the answers

What does the Learned Hand Formula evaluate?

The balance between the cost of precautions and potential harm Signup and view all the answers

In the context of negligence law, how are children generally measured for their care?

By the reasonable child standard of care for their age Signup and view all the answers

What does establishing malpractice in a professional context generally require?

Proof of negligence in following accepted standards Signup and view all the answers

How does the concept of social utility affect the acceptance of risks in society?

Important societal benefits may justify accepting certain risks Signup and view all the answers

What standard is a minor held to when engaging in adult activities such as operating a car?

The same standard of care as adults Signup and view all the answers

What does the 'custom' in legal contexts imply?

Custom may inform the analysis of reasonableness but does not dictate it Signup and view all the answers

What constitutes an unreasonable interference related to public nuisance?

An activity that disrupts public health or safety. Signup and view all the answers

In cases of medical malpractice, what standard is a physician expected to meet?

The standard of care of the average physician in their specialty Signup and view all the answers

Which of the following is an example of private nuisance?

Foul odors emanating from a neighbor's property. Signup and view all the answers

What is one of the main elements that must be established in a negligence claim?

A duty of care that was breached Signup and view all the answers

Which element is NOT required to establish prima facie defamation?

Evidence of the defendant’s intent to harm. Signup and view all the answers

What type of damages are typically awarded to a harmed party in defamation cases?

Monetary compensation aimed to make the injured party whole. Signup and view all the answers

Which factor might affect whether an interference with a public right is deemed unreasonable?

Whether public safety is noticeably compromised. Signup and view all the answers

Which of the following best describes the nature of defamation?

A statement damaging to a third party's reputation. Signup and view all the answers

Which example illustrates a public nuisance effectively?

Pollution affecting a city’s drinking water supply. Signup and view all the answers

Which of the following is NOT a form of defamation?

Character reference. Signup and view all the answers

What is the primary consideration in traditional but-for causation?

Whether the plaintiff's injury would have occurred without the defendant's breach Signup and view all the answers

In a scenario where two defendants have been negligent but it is uncertain which caused the plaintiff's injury, what happens?

The burden of proof shifts to the defendants to demonstrate they are not at fault Signup and view all the answers

Market share liability applies under what condition?

When multiple defendants contribute to harm during a specific time frame Signup and view all the answers

What does proximate cause determine in terms of liability?

The liability for unforeseeable consequences of the defendant's actions Signup and view all the answers

How does foreseeability affect a defendant's liability in negligence cases?

It is necessary to establish conduct as negligent Signup and view all the answers

If a defendant's negligence exacerbates an existing illness in a plaintiff, what is the legal outcome?

The defendant is liable for the damages caused by the aggravation of the illness Signup and view all the answers

What is the general principle of proximate cause regarding liability for increased risk?

Defendants may be liable if they create a greater risk of a harmful result that does occur Signup and view all the answers

What is a key limitation of market share liability?

It is rarely applied and limited to specific circumstances Signup and view all the answers

What is contributory negligence?

A common law rule that bars plaintiffs from recovering if they are also negligent Signup and view all the answers

What does the Last Clear Chance Doctrine allow?

Plaintiffs to recover damages when a negligent defendant had the last chance to avoid the accident Signup and view all the answers

Which of the following is true about comparative negligence?

It reduces recovery based on the degree of negligence of each party Signup and view all the answers

What is an express assumption of risk?

When a party willingly accepts risk through a clear agreement Signup and view all the answers

Which of the following correctly describes implied assumption of risk?

It can be inferred from the circumstances surrounding an agreement Signup and view all the answers

How does the Tunkl Test relate to express assumption of risk?

It evaluates whether assumptions of risk are enforceable by examining public policy Signup and view all the answers

Which situation does assumption of risk NOT apply to?

An intentional tort case Signup and view all the answers

What is the primary outcome of contributory negligence in many jurisdictions?

A shift to comparative negligence standards Signup and view all the answers

Study Notes

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

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.

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

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