TORTS: BAR EXAM CHECKLIST

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Torts: Exam Checklist. Intro; Intentional ... (2) Omissions and preexisting duties ( i.e., prison guard's failure to let prisoner go after sentence is up). (3) knows of ...


Torts: Exam Checklist

1. Intro 2. Intentional torts a. Battery b. Assault c. False imprisonment d. Intentional infliction of mental distress e. Trespass to land f. Trespass to chattels and conversion 3. Defenses to intentional torts a. Consent b. Self-defense; defense of others; defense of property (protective privileges) c. Necessity 4. Negligence a. Duty b. Breach c. Causation i. Factual ii. Proximate d. Damages 5. Defenses to negligence a. Comparative negligence b. Express assumption of risk c. Primary assumption of risk (not really a defense) d. Secondary assumption of risk (affirmative defense) 6. Strict liability (safety precautions are irrelevant) a. Animals b. Ultra-hazardous activities c. Nuisance d. Products liability 7. Miscellaneous torts issues a. Vicarious liability b. Multiple defendants c. Immunities d. Loss of consortium Intro

• Hypersensitivity of ( not taken into account when deciding whether a tort was committed

• There are no incapacity defenses to tort liability

1) Intentional Torts (Intent is always an element)

a) Battery

i) ( commits harmful or offensive contact ii) Contact is with (s person iii) Offensive means unpermitted by a person with ordinary sensitivity iv) “(s person” includes anything held by plaintiff (i.e., briefcase)

b) Assault

i) ( puts ( in apprehension ii) Apprehension is of an immediate battery iii) Apprehension means (’s knowledge or awareness that unpermitted touching will follow iv) Words and conduct = immediacy v) Future words destroy immediacy

c) False Imprisonment

i) Act of restraint 1) Threats 2) Omissions and preexisting duties (i.e., prison guard’s failure to let prisoner go after sentence is up) 3) ( knows of the restraint or suffers harm ii) Confined in a bound area 1) Locked in or 2) No reasonably discoverable means of escape

d) Intentional Infliction of Mental Distress

i) Intentional or reckless conduct ii) Outrageous conduct—exceeds all bounds of decency tolerated by a civilized society iii) Severe emotional distress iv) Mere insults are never outrageous unless 1) Humiliated in a public place 2) Repetitive or continuous conduct 3) ( is a common carrier or innkeeper 4) ( is a member of a fragile class (Young child, Elderly, Pregnant) v) Hypersensitivity is not enough unless ( knew of and exploited the sensitivity

e) Trespass to Land

i) Intent to go to the challenged location (whether ( is aware or not that property is private) ii) Act of physical invasion (i.e., throwing a rock onto land of another) iii) Land (air above and soil below where owner can use the space) iv) Stupid Golfer is a trespasser; Bad golfer is not a trespasser f) Trespass to Chattels & Conversion

i) Deliberate interference with personal property ii) Interference means damages or taking iii) Small interference = trespass to chattels iv) Big interference = conversion v) Conversion: ( gets the full value

2) Defenses to Intentional Torts

a) Consent

i) Legal capacity to consent ii) Express 1) Actual words spoken or written 2) Exception: duress, fraud, mistake iii) Implied 1) Custom and Usage (i.e., football; hockey) 2) (’s reasonable interpretation of (’s objective conduct iv) Exceeding scope of consent makes you liable for the tort

b) Self Defense; Defense of Others; Defense of Property (Protective Privileges)

i) Timing: ( acts when the invasion is imminent or in progress (no revenge) ii) Accuracy: Reasonable belief iii) Limitation: ( must limit to the appropriate degree of force iv) Never use deadly force for defense of property

c) Necessity

i) Property torts only ii) Public 1) ( invades (’s property 2) Emergency 3) Protect community or significant group of people (savior of the public) 4) Absolute defense iii) Private 1) ( invades (’s property 2) Emergency 3) Protect (’s own interest 4) Not an absolute defense a) ( must pay for actual harm caused b) ( not liable for nominal or punitive damages c) (/owner must tolerate presence on land during emergency (sanctuary until emergency is over)

3) Negligence

a) Duty

i) To Whom Owed?

1) Foreseeable victims 2) Unforeseeable victims always lose 3) Exception: rescuers that come to remedy (’s carelessness become foreseeable

ii) How Much Care is Owed?

1) General Rule a) Reasonably prudent person under the circumstances b) Objective standard c) Does not consider anything about (

2) General Exceptions: Consider (’s superior knowledge of a fact and (’s relevant physical attributes a) If ( has superior knowledge, standard is RPP with that knowledge b) (’s relevant physical attributes are considered

3) Children a) Under 4 = no negligence b) Over 4 = care of a hypothetical child of like age, experience, and intelligence c) Subjective standard d) Exception: General RPP standard applies if child engages in adult activities (motorized vehicles; boats, cars, etc.)

4) Professionals a) Person who performs social service to public and who receives special training b) Standard: average member of the profession practicing in similar community c) Empirical standard

5) Occupiers of Land ((’s Land)

a) How did Entrant Get Hurt? i) By (’s conduct of activities on property ii) By encounter with hazardous condition of (’s property



b) What is (’s Status?

i) Undiscovered Trespasser 1. Never owed duty of care under negligence theory 2. Can sue under intentional tort theory

ii) Discovered/Anticipated Trespasser 1. Activities: Owed a duty of reasonable care 2. Conditions: Owed a duty of reasonable care if known, manmade death trap on the land a. Artificial condition b. Highly dangerous c. Concealed from trespasser d. Occupier had advanced knowledge of the condition

iii) Licensee (Social Guest) 1. Activities: owed a duty of reasonable care 2. Conditions: owed a duty of reasonable care for all known traps a. Occupier knows b. Licensee unlikely to discover 3. Firefighters and Officers (licensees) may never recover from injury inherent in the job

iv) Invitee (Open to Public) 1. Activities: Owed a duty of reasonable care 2. Conditions: Owed a duty of reasonable care for all reasonably knowable traps on land a. Concealed from invitee b. Owner knows in advance or c. Owner could discover with reasonable inspection

v) Child Trespassers owed a duty of reasonable care

vi) Hazardous Conditions: 1. Duty met if hazardous condition is fixed 2. Duty met if ( is warned

6) Statutory Standards of Care (Negligence Per Se) a) Borrow the statute that ( violated to establish the duty and breach b) ( must be in the class of person protected by the statute c) Injury must be in the class of risks sought to be avoided by the statute d) Exceptions: No statutory standard of care if i) Compliance with statute would be more dangerous than a violation ii) Compliance is impossible under the circumstances

7) Affirmative Duties to Act a) No duty to affirmatively act b) No duty to rescue strangers c) Exceptions i) ( causes (’s peril ii) preexisting relationship between the parties 1. family 2. common carrier and innkeeper 3. invitees iii) Reasonable rescue only (don’t kill yourself to rescue another) iv) Once you undertake the rescue, must finish the rescue 8) Negligent Infliction of Emotional Distress a) Causing fright for one’s own safety i) (’s negligence exposed ( to physical harm but missed (“near miss case”) ii) Subsequent physical manifestations from the distress (i.e., heart attack) b) Grief or anxiety over injury caused to another i) Bystander present ii) Victim is close family member c) High foreseeability of agitation but no risk of physical harm d) Impact Rule, Zone of Danger Rule

b) Breach

i) Identify (’s wrongful conduct ii) Determine whether ( acted unreasonably iii) Res ipsa loquitor 1) Accident does not normally occur absent negligence 2) Rule out other defendants

c) Causation

i) Factual 1) General Rule: But for (’s conduct, injury would not have occurred 2) Multiple Defendants; Mingled Causation—Substantial Factor Test (if (’s conduct was a substantial factor in the injury, ( caused the injury) 3) Multiple Defendants; Unascertainable Causation—Burden shifts to (s to disprove their negligence

ii) Proximate: Is it Fair to Make ( Pay? 1) ( liable for foreseeable consequences of his actions 2) Direct Cause Fact Patterns: One-Two Punch: ( acts carelessly and ( immediately hurt 3) Indirect Cause Fact Patterns: Intervening Acts: ( acts, minor or no harm, intervening event makes the harm worse or brings it to fruition 4) Defendant always liable: a) Intervening medical negligence b) Intervening rescuer’s negligence c) Intervening protection or reaction forces d) Subsequent disease or accident

d) Damages

i) Eggshell Skull Doctrine: ( takes the ( as he finds him ii) ( must pay for all damages suffered by ( even if extent of damages is unforeseeably great iii) Applies to all torts

4) Defenses to Negligence

a) Comparative Negligence

i) ( failed to exercise relevant degree of care for his own safety ii) Pure comparative negligence: 50%-50%; 60%-40% etc. iii) Partial/Modified Comparative Negligence: 1) ( fault under 50% = recovery 2) ( fault over 50% = no recovery

b) Express Assumption of Risk i) ( signed release or ( an employee at dangerous job 1) Firefighters, police can’t collect because the public at large pays them to assume risk 2) Private employees injured by third parties instead of by employer may collect

ii) Release valid unless void by public policy as determined by Tunkl Test

c) Primary Assumption of Risk (not really a defense) i) ( prevented from making even a prima facie case of liability ii) ∆ had no duty, ( freely undertook dangerous activities iii) Activity must be within the scope of what ( expressly agreed to

d) Secondary Assumption of Risk (affirmative defense) i) ∆ does have duty to ( & may have breached it ii) ( recognized whatever danger resulted from ∆’s negligence iii) ( voluntarily chose to encounter danger



5) Strict Liability: Safety Precautions are Irrelevant

a) Animals

i) Domesticated Animals (dog bites) 1) No strict liability 2) Exception: ( has knowledge of vicious propensities ii) Trespassing Cattle and Wild Animals 1) Strict Liability

b) Ultra-hazardous Activities

i) Activity that cannot be made safe ii) Severe risk of harm iii) Uncommon in area where conducted iv) Fact patterns 1) Major explosives 2) Toxic chemicals 3) Nuclear energy

c) Nuisance

i) Inconsistent land use ii) Liability if (’s activities interfere with (’s enjoyment of (’s land to an unreasonable degree

d) Products Liability

i) Merchant 1) Casual seller excluded 2) Service provider is not merchant of goods used to provide services 3) Commercial lessors are included 4) ( is a merchant whether or not ( dealt directly with merchant (i.e., everybody in the commercial chain from mfg. to sale is on the hook)

ii) Defective Product 1) Manufacturing Defect (production anomaly) a) Product is different from other products and is more dangerous than consumers could expect (consumer expectation test) b) E.g., “one in a million” 2) Design Defect a) Alternative way to physically construct the product b) Alternative is safer c) Alternative is cost-effective d) Alternative is practical (does not impair the intended purpose of the product; i.e., butcher’s knife can be made dull, but it won’t serve its purpose) 3) Warnings a) Clear, prominent, understandable to the class of anticipated customer (i.e., bilingual etc.) b) No warning = defective product

iii) Defect existed when the product left the hands of the (

iv) ( makes foreseeable use of the product even if non-intended use

v) Defenses: comparative negligence most prominent

6) Miscellaneous Tort Issues

a) Vicarious Liability

i) Look for active tortfeasor and passive party and their relationship



ii) Employer and employee 1) Employer liable for employee’s torts done in the scope of employment 2) Rule of Detour = liability for employee’s minor detours on the job 3) Rule of Frolic = no liability for employee’s major detours on the job 4) Generally, intentional torts are outside the scope of employment unless (1) force required for the job (bouncer); force furthers the employer’s purpose; (3) collecting practices are part of job

iii) Hiring Party and Independent Contractor 1) No vicarious liability 2) Exception: Occupier of land vicariously liable if IC hurts an invitee

iv) Automobile Owner and Authorized Driver 1) No vicarious liability 2) Exception: use furthers the owner’s purpose (i.e., running errands for the owner—“Go get my fuckin laundry, punk”)

v) Parents and Children: No vicarious liability at all for children’s torts

b) Multiple Defendants

i) General Rule: Out-of-Pocket ( can recover from co-( pursuant to percentage of fault found by the jury ii) Indemnity Exception: Out-of-pocket ( can recover 100% from co- defendants if 1) Out-of-pocket ( was vicariously liable only 2) Products Liability Case: any party other than mfg. can get indemnity from mfg.

c) Immunities

i) Governmental 1) Immune when engaging in traditional governmental activities involving discretionary decisionmaking or 2) Duty owed to the public as a whole and not just to the ( at the time 3) Can be liable if a) Routine b) Non-discretionary or c) Proprietary

ii) Employer’s Immunity in Worker’s Compensation Cases 1) Boss is immune from negligence suit; worker’s compensation is exclusive remedy for on-the-job accidents 2) Co-workers are not immune

iii) Family and Charitable Immunities Abolished

d) Loss of Consortium

i) Must be married ii) Uninjured spouse gets separate action against tortfeasor iii) Gets compensation for (1) loss of services (2) loss of society or companionship (3) loss of sex

Reminders - If you can’t get them on an intentional tort, try getting them on negligence - Remember that there was Intentional Infliction of Emotional Distress VS. Negligent Infliction of Emotional Distress - Remember for false imprisonment, the false imprisoner is liable for imprisonees escape attempts - Remember collateral matters versus essential - See Glannon p. 78 on experts - Intervening Cause: A cause 1) coming into active operation, 2) in producing the result 3) after defendant’s negligence 4) from a source independent of defendant’s negligence - Market-Share liability: DES cases with economic arguments of ways to split up liability - For negligence: tension between breach of duty and cause in fact issue - For express assumption of risk, a release must mention D’s own negligence being waived - Exculpatory clause test

Common Arguments - floodgates argument - cheapest cost-avoider - single owner theory - risk-pooling/spreading - pure economic losses – no duty - lost chance theory

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