Torts

The "shopkeeper's privilege" allows a shopkeeper to avoid liability for false imprisonment when detaining a suspect that he reasonably believes has committed a theft. The shopkeeper also must:

(A) In addition to having a reasonable belief as to the fact of theft, a shopkeeper is required to conduct the detention in a reasonable manner and detain the suspect for a reasonable period of time for the privilege to apply. By statute in some states and case law in others, shopkeepers have been given a privilege to detain someone suspected of shoplifting and thus avoid liability for false imprisonment. The following conditions must be satisfied: (i) there must be a reasonable belief as to the fact of theft; (ii) the detention must be conducted in a reasonable manner and only nondeadly force can be used; and (iii) the detention must be only for a reasonable period of time and only for the purpose of making an investigation. A shopkeeper is not required to notify the police in a reasonable amount of time to avoid liability for false imprisonment when detaining a suspect for shoplifting.

Which of the following is NOT part of the prima facie case for intentional infliction of emotional distress?

(D) Physical symptoms caused by the emotional distress are not required. A prima facie case for intentional infliction of emotional distress requires proof of: (i) an act by the defendant amounting to extreme and outrageous conduct; (ii) intent on the part of the defendant to cause the plaintiff to suffer severe emotional distress, or recklessness as to the effect of the defendant's conduct; (iii) causation; and (iv) damages—severe emotional distress. Intent to cause the plaintiff to suffer severe emotional distress establishes the intent element of the tort. Reckless disregard of a high probability that emotional distress will result also satisfies the intent element of the tort. Evidence of severe emotional distress must be shown; hurt feelings are not sufficient. An act by the defendant amounting to extreme and outrageous conduct is an element of the tort.

Which of the following persons is considered to be an invitee of the landowner?

A child accompanying a customer of the landowner is considered an invitee because she came onto the property for a purpose connected to the business. Under traditional landowner liability rules, a landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This general duty includes the duties owed to licensees (to warn of nonobvious, dangerous conditions known to the landowner and to use ordinary care in active operations on the property). A landowner also owes invitees a duty to make reasonable inspections to discover dangerous conditions and make them safe. A customer of the landowner who goes through a door marked "employees only" is no longer an invitee. A person loses his status as an invitee if he exceeds the scope of the invitation—if he goes into a portion of the premises where his invitation cannot reasonably be said to extend. A firefighter fighting a fire on the landowner's property is not treated like an invitee. Under the "firefighter's rule," police officers and firefighters are generally treated like licensees, based on public policy or assumption of risk grounds. They cannot recover for a landowner's failure to inspect or repair dangerous conditions that are an inherent risk of their law enforcement or firefighting activity. A hiker on the landowner's open land is not considered an invitee. If an owner or occupier of open land permits the public to use the land for recreational purposes without charging a fee, the landowner is not liable for injuries suffered by a recreational user unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

Which of the following best states who may bring a strict liability action against a defendant engaging in abnormally dangerous activities?

A defendant engaging in an abnormally dangerous activity may be liable only to foreseeable plaintiffs injured as a result of the dangerous propensity of the activity. This is the best statement of the scope of the duty owed. In most states, a defendant will be liable only to those persons to whom a reasonable person would have foreseen a risk of harm under the circumstances. In general, strict liability is not imposed for injuries to a plaintiff to whom no reasonable person would have foreseen a danger. The defendant will not be strictly liable to all plaintiffs who were directly injured by the activity. Rather, the harm must result from the kind of danger to be anticipated from the abnormally dangerous activity; i.e., it must flow from the "normally dangerous propensity" of the activity involved. Conversely, a foreseeable plaintiff may recover even if she was not directly injured by the activity as long as the injury was from the dangerous propensity (e.g., injuries caused by fleeing the danger from the activity).

Force may not be used by __________.

A landowner may not use force to regain real property after being tortiously dispossessed. Most states today do not allow resort to "self-help"; one who has been wrongfully excluded from possession of real property may bring an ejectment action or other summary procedure to recover possession. Hence, the owner who uses force to retake possession is liable for whatever injury she inflicts. (In former years, under the common law, a landowner tortiously dispossessed of real property could use reasonable force to regain possession, if she acted promptly upon discovery of the dispossession.) An owner of chattel may use force to recapture the chattel. An owner may use reasonable force to recapture a chattel when in "hot pursuit" of the tortfeasor. A demand for return of the chattel must be made before force is used, unless the demand would be futile or dangerous. However, force can be used only against the tortfeasor or a third party who knows that the chattel was tortiously obtained. If an innocent third party has obtained the chattel, the owner is no longer privileged to use force to effect a recapture of the chattel. A citizen may use force to effect a misdemeanor arrest. However, the citizen is allowed to use only the amount of force necessary to effect the arrest and never deadly force. A property owner may use force to defend the property from tortious interference. Although a property owner may use reasonable force to defend property, she may not use force that will cause death or serious bodily harm. Furthermore, one may not use indirect deadly force such as a trap, spring gun, or vicious dog when such force could not lawfully be directly used, e.g., against a mere trespasser.

A prima facie case for intentional tort liability requires proof of _________.

A prima facie case for intentional tort liability requires proof of a volitional act by the defendant; i.e., conduct dictated by the actor's mind. The typical prima facie case for intentional tort liability requires the plaintiff to prove the following: (i) An act by the defendant; (ii) Intent; and (iii) Causation. Some intentional torts also require a showing of damages, but most do not. It is not required that there be proof of malice for intentional tort liability, although a showing of malice may permit the recovery of punitive damages. Nor is it required that the actor intend to cause injury. An intent to do the act that constitutes the tort is sufficient.

A private citizen may make a felony arrest without a warrant:

A private citizen may make a felony arrest without a warrant only if a felony has in fact been committed and the citizen has reasonable grounds for believing that the person arrested has committed it. No liability for false imprisonment will attach to the citizen in such a scenario because the arrest is privileged. A private citizen may not escape liability for false imprisonment if the arrest is made only on the basis that the citizen reasonably believes that a felony has been committed. Rather, a felony must in fact have been committed for the arrest by the private citizen to be privileged; if no felony took place, the private citizen may be subject to a false imprisonment action. It is not a requirement that the person arrested in fact have committed the felony. To avoid liability for false imprisonment, the private citizen need only reasonably believe that the person arrested have committed the felony.

A defendant may be liable for a breach of the duty of care to all of the following EXCEPT::

A rescuer is a foreseeable plaintiff and is owed a duty of care as long as the rescue is not reckless, However, firefighters and police officers may be barred by the "firefighter's rule" from recovering for injuries caused by the risks of a rescue. A duty of care is owed to a viable fetus; prenatal injuries are actionable. A third party for whose economic benefit a legal or business transaction is made is owed a duty of care if the defendant could reasonably foresee harm to that party if the transaction is done negligently. While a landowner owes no duty to an undiscovered trespasser, a trespasser whose presence on the property is known to the landowner is owed a duty to be warned about seriously dangerous artificial conditions on the property.

A construction company that was putting in a swimming pool for a homeowner left a couple of large pieces of equipment in the backyard overnight. The equipment was not owned by the construction company but was leased from an equipment company, which was responsible for its repair and maintenance. After the workers had left, a seven-year-old boy came onto the homeowner's property to play. The homeowner was aware that the boy often came onto his property to play with his dog. The boy climbed up on one of the pieces of equipment and began pushing buttons and moving levers. The engine started and the equipment began to move because the equipment company had not replaced a defective safety locking device on the ignition. The boy became frightened and jumped off, falling into the hole that had been dug that day, and was injured. The boy's parents brought suit against the homeowner and the construction company. If the construction company is held liable for the boy's injuries, may it recover anything from other parties?

Because the equipment company negligently maintained the equipment, the construction company could obtain contribution from the equipment company. When two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortious actor will be jointly and severally liable for that injury. Joint and several liability permits a plaintiff to recover the entire judgment amount from any defendant. Contribution allows a defendant required to pay more than his share of damages to recover from the other jointly liable parties for the excess. In other words, contribution apportions responsibility among those who are at fault. Here, if the construction company is held liable for the boy's injuries, it will be because of its negligence in leaving unattended a piece of equipment without a working safety locking device. However, because the equipment company, which was responsible for repair and maintenance of the equipment, negligently performed such maintenance, resulting in the absence of a working safety locking device, then the equipment company's negligence would have combined with that of the construction company to proximately cause the boy's injuries. This would render the companies jointly and severally liable to the boy for the entire damage incurred. Thus, if the construction company is held liable for the injuries, it has a claim against the equipment company, as a jointly liable party, for the amount it pays in excess of its share of damages. (A) is incorrect because indemnity is not available here. Indemnity involves shifting the entire loss between or among tortfeasors, and is available where: (i) there is a contractual promise to indemnify; (ii) there is a special relationship between the defendants that would allow for vicarious liability; or (iii) the defendant is a supplier in a strict products liability case who is liable to an injured customer, thus giving the supplier a right of indemnification against previous suppliers in the distribution chain. In addition, some states allow a joint tortfeasor to recover indemnification from a co-joint tortfeasor where there is a considerable difference in degree of fault. Here, there is no evidence of a contractual right to indemnity between the construction company and the equipment company, there is no relationship between them that causes the construction company to be held vicariously liable for the equipment company's negligence, and this is not a strict products liability case. Also, there is no indication of a considerable difference in degree of fault between the two companies. Therefore, none of the circumstances in which indemnity is available is present. (C) is incorrect As to the homeowner, it is doubtful that he would be liable because he did not know (and had no reason to know) that the safety locking device on the equipment was missing. Even if a jury were to find him, as the property owner, at fault to some degree, indemnity would not be applicable to this situation, as discussed above. (D) is incorrect because, as explained above, the construction company can recover from the equipment company based on contribution rules.

Which of the following is not an element of the prima facie case of false imprisonment?

Damages is not an element of the prima facie case of false imprisonment. That tort requires proof of the following elements: (i) An act or omission to act on the part of the defendant that confines or restrains the plaintiff to a bounded area; (ii) Intent on the part of the defendant to confine or restrain the plaintiff to a bounded area; and (iii) Causation. As indicated above, an act or omission to act on the part of the defendant that confines or restrains the plaintiff to a bounded area, intent to confine or restrain the plaintiff to a bounded area, and causation are required elements of the prima facie case for false imprisonment.

What must be shown for a qualified privilege to apply for defamatory statements?

For a qualified privilege to apply, the statement must be reasonably relevant to the interest being protected. The privilege does not encompass the publication of irrelevant defamatory matter unconnected with the public or private interest entitled to protection. However, there need not be a common interest between the publisher and the recipient; statements made in the interest of one party but not the other may fall within a qualified privilege. While a qualified privilege does not apply if the defendant acted with actual malice, that term refers to knowledge of falsity or reckless disregard of truth rather than ill will; hence, a defendant acting with ill will may still assert a qualified privilege. Finally, the statement need not be in response to a request by the recipient; if the publisher has a relationship with the recipient, volunteered statements may fall within the privilege

Which of the following statements is true as to the right of a plaintiff to recover for intentional infliction of emotional distress when the defendant inflicts severe physical harm on another?

If the defendant's design was to cause severe distress to the plaintiff, the plaintiff need NOT be present or a close relative of the injured person to recover for intentional infliction of emotional distress. Normally, a defendant will not be liable to a plaintiff who suffers severe emotional distress when the defendant inflicts severe physical harm on another unless (i) the injured person is a close relative of the plaintiff, (ii) the plaintiff was present when the injury occurred, and (iii) the defendant knew of the plaintiff's presence and relationship. However, the presence and family relationship requirements do not need to be established if the plaintiff shows that the defendant had a design or purpose to cause severe distress to the plaintiff by harming a third person, and the plaintiff does suffer severe distress.If the plaintiff is not present, the plaintiff cannot recover absent a showing that the defendant's design or purpose was to cause severe distress.Similarly, if the plaintiff is not a close relative of the injured person, a cause of action will not be established absent a showing of the defendant's design or purpose.

The defense of consent is not available if:

If the plaintiff consented due to a mistake induced by the defendant, the defense of consent is not valid. The general rule is that if a plaintiff consents by mistake, the defense of consent is still valid, unless the defendant caused the mistake or knew of the mistake and took advantage of it.If the plaintiff is incapable of consent because she is unconscious, the defense of consent may still be valid in certain situations. Consent to unauthorized contact may be implied by law in an emergency situation when action is necessary to save the plaintiff's life. Consent will be implied in such a case if the plaintiff is incapable of consenting and a reasonable person would conclude that contact is necessary to prevent death or serious bodily harm.If the plaintiff's consent was induced by fraud as to a collateral matter, the defense of consent is still valid. The fraud must go to an essential matter for the consent to be nullified.If the plaintiff consented due to threats of legal action, the defense of consent is still valid. Consent obtained by duress is invalid. However, threats of future action or future economic deprivation do not constitute duress sufficient to invalidate consent.

In a products liability case based in strict liability, a plaintiff may recover:

In a products liability case based on strict liability, a plaintiff may recover both personal injury damages and property damages for the supplying of a defective product. If the plaintiff's complaint is only that the product does not work as well as expected or requires repairs (i.e., no personal injury or property damages), most courts do not permit recovery of damages for economic losses under either a strict liability or a negligence theory; the plaintiff must bring an action for breach of warranty.

Which of the following constitutes sufficient confinement for false imprisonment?

Sufficient confinement for false imprisonment may arise through indirect threats against the plaintiff's property. False imprisonment can arise from indirect threats of force, i.e., acts or words that reasonably imply that the defendant will use force against the plaintiff's person or property or persons of the plaintiff's immediate family. A threat of future harm against the plaintiff's family is not sufficient confinement. A threat of harm must be imminent to constitute confinement. A cause of action will not be sustained if a person remains in the area in response to future threats against person or property. Reasonable restraint of a suspected shoplifter does not constitute sufficient confinement. As long as the detention was reasonable in manner and time, a shopkeeper has a privilege to detain someone he reasonably suspects has shoplifted.

A trainer of homing pigeons brought several of them to a park that he often used for training. He had trained this group of pigeons carefully and was confident that they would readily find their way home. When they were released, one of the pigeons inexplicably turned in the opposite direction from home. Several blocks away at the other end of the park, it collided with a radio-controlled model airplane that its owner had just purchased and was trying out for the first time. The collision sent the airplane out of control; it dipped low across a highway and was struck and run over by a truck. The airplane owner sued the pigeon trainer for the destruction of his airplane. The parties stipulated to the above facts and the airplane owner presented evidence of his damages. The trainer then moved for a directed verdict. Should it be granted?

The court should grant a directed verdict for the trainer because the airplane owner has not shown that the trainer breached any duty that he owed to him. A prima facie case of negligence requires plaintiff to show the following elements: (i) the existence of a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against unreasonable risk of injury, (ii) breach of that duty by the defendant, (iii) that the breach of duty was the actual and proximate cause of plaintiff's injury, and (iv) damage to plaintiff's person or property. Here, it is doubtful that the trainer's releasing his pigeons created any duty to other users of the park. To the extent that it did, the fact that he had taken great care to train them to return directly to their roosts indicates that he did not breach his duty to the airplane owner. Because the airplane owner has offered no other evidence of negligence, nor any reason to impose strict liability on the trainer (as discussed below), the trainer's motion for a directed verdict should be granted. (A) is incorrect because that choice indicates the imposition of a strict liability standard on the trainer. The owner of a domestic or inherently nondangerous animal is not strictly liable for the injuries it causes. The conduct of the trainer's homing pigeon would not make the trainer liable in the absence of some negligence on his part. (B) is incorrect because the doctrine of res ipsa loquitur applies only to situations where the fact that a particular injury occurred itself establishes that defendant breached a duty. If the doctrine is applicable, no directed verdict may be given for defendant because plaintiff has established a prima facie case. However, the accident must be the type that would not normally occur unless someone was negligent. The collision between the trainer's homing pigeon and the model airplane is not that type of accident; by itself, it provides no suggestion that anyone was negligent. (C) is incorrect because the truck is not a superseding force that breaks "the causal connection" between the action of the trainer's pigeon and the airplane's destruction. In indirect cause cases, where a force came into motion after defendant's act and combined with it to cause injury to plaintiff, defendant will still be potentially liable for foreseeable intervening forces that are within the increased risk caused by his acts. Even if the intervening force is independent (i.e., not a natural response or reaction to the situation), it will be foreseeable where defendant's negligence increased the risk that the independent force would cause harm. Hence, if the trainer were negligent in releasing his pigeon, the fact that the destruction of the airplane was directly caused by the truck would not relieve the trainer from liability, because the initial collision with the pigeon caused the airplane to go out of control and created a substantial risk that it would be damaged by an intervening force.

A state statute required that any freight train operating within the city limits be able to stop within 200 yards of applying its brakes. No fixed speed limit was established or particular type of braking mechanism required, but through either lowered speed or braking power, the 200‑yard limit was required of all trains. Another statute prohibited vehicles from being within the railroad crossing when the lights on the warning signs are flashing or when the gates are lowered. One day, as a freight train was entering the city limits, the engineer saw a car stalled at a street crossing ahead. He immediately applied full braking power, but was unable to stop the train before it had hit and demolished the car. The driver of the car had gotten clear before the impact, but brought suit against the freight line for property damage to the $25,000 car. At trial, the parties stipulated that the car was stalled within the crossing while the warning lights were flashing. Evidence at trial established that the distance from the point at which the engineer applied the train's brakes to the point of impact was 150 yards, and from the braking point to the point at which the train finally stopped was 225 yards. No other evidence of negligence was presented by the driver. At the end of the driver's case, the freight line moved for a directed verdict. Should the court grant the motion?

The court should grant the motion because the driver did not establish the cause‑in‑fact element of his prima facie case against the freight line. The primary test for cause in fact (actual cause) is the "but for" test: An act is the cause in fact of an injury when the injury would not have occurred but for the act. Even though the freight line had a duty created by the statute to be able to stop its train within 200 yards of first braking, and breached that duty (establishing the first two elements of the driver's prima facie case), it must still be shown that the collision would not have occurred in the absence of the breach. Because the car was only 150 yards from the point of braking, even a train in compliance with the statute would have struck it. Since no other evidence of negligence has been presented, the motion should be granted. (A) is incorrect because establishing the freight line's "negligence per se" through violation of the statute only establishes a conclusive presumption of duty and breach of duty; the plaintiff must still prove causation. (B) is incorrect because generally violation of a statute does not create strict liability; even if it did in this case, the plaintiff would still have to prove causation as part of the prima facie case for strict liability. (C) is not correct because the court will not reach the issue of the plaintiff's contributory negligence in this case because the prima facie case for the defendant's negligence has not been established. Furthermore, establishing the plaintiff's contributory negligence by violation of a statute uses the same rules that govern whether a statute can establish the defendant's negligence. Hence, the driver's violation of the crossing statute may be excused if the trier of fact determines that compliance was beyond his control because his car stalled.

The doctrine of transferred intent may not be invoked for which of the following torts?

The doctrine of transferred intent may not be invoked for intentional infliction of emotional distress. The doctrine of transferred intent permits an intent to commit a tort against one person to be transferred to another tort or person. It may be invoked for battery, false imprisonment, and trespass to chattels. Transferred intent may be invoked only if the tort intended and the tort that results are one of the following: Assault;Battery;False imprisonment;Trespass to land; andTrespass to chattels.

A college student owned a very popular video game system that was out of stock in most stores. He agreed to let his friend use the system for a few days, on condition that he return the system by the weekend because the student was hosting a small party. On the morning of the party, the friend still had not returned the game system, so the student went to the friend's apartment and demanded it back. The friend refused, so the student grabbed the system and wrestled it out of the friend's hands. If the friend sues the student for battery, will he recover on this claim?

The friend will recover for battery because the student did not have the right to use force. The defense of recapture of chattels is limited by the circumstances of the original dispossession. When another's possession of the owner's chattel began lawfully, the owner may use only peaceful means to recover the chattel. Force may be used to recapture a chattel only when in "hot pursuit" of one who has obtained possession wrongfully (e.g., by theft). Here, the friend's initial possession of the game system was a bailment, because the student consented to his borrowing it. Thus, the student is not entitled to use force to recover it, and his wrestling it away from the friend constituted the requisite harmful or offensive contact to make the student liable for battery. (A) is incorrect. One who is entitled to use force to recapture chattels is only permitted to use reasonable force, but here the student is not entitled to use any force at all because the friend's initial possession of the game system was lawful. (B) is incorrect because it is not relevant whether the friend's delay in returning the game system was unreasonable; the student is not entitled to use force because he lent the system to the friend originally. (D) is incorrect because the requirement that a timely demand to return the chattel must precede the use of force applies only if the owner of the chattel is entitled to use force. Here, as discussed above, the student did not have the right to use force.

A golfer and her instructor were playing golf in a foursome when the golfer became very annoyed with critical comments made by the instructor. To show the other golfers in the group how annoyed she was with her instructor, the golfer stood a few yards behind him while the instructor was teeing off and swung a club at him. The instructor, who was focusing on his shot, was not within range of the club but unfortunately the club slipped out of the golfer's hands and struck the instructor in the head, injuring him. If the instructor brings a battery action against the golfer, will he recover?

The golfer will not be liable because she did not intend to cause harmful or offensive contact. The prima facie case for battery has the following elements: (i) an act by the defendant that brings about harmful or offensive contact to the plaintiff's person; (ii) intent on the part of the defendant to bring about harmful or offensive contact to the plaintiff's person; and (iii) causation. Here, the golfer did not have the intent to cause harmful or offensive contact. Hence, she will not be guilty of battery. (A) is incorrect because even though the golfer had the intent to swing the club, she did not have the intent required for battery—to cause harmful or offensive contact to another. (B) is incorrect because the facts do not support an intent to cause an assault. Under the transferred intent doctrine, an intent to cause an assault (intent to cause apprehension of imminent harmful or offensive contact) will satisfy the intent requirement for battery when the other elements of battery are present. Here, however, the golfer was standing behind the instructor and was intending only to show the other golfers how annoyed she was. No intent to commit assault is apparent here. (D) is incorrect because it describes a negligence standard. The instructor may be able to recover against the golfer in a negligence cause of action if the golfer acted unreasonably in swinging the club, but this does not establish intent for a battery action.

A columnist for a major metropolitan newspaper had a very antagonistic relationship with the city's mayor. When a restaurant owned by the columnist's family was shut down by city health inspectors, the columnist responded with a column publicizing the shutdown and asserting that it was in retaliation for his prior columns in which he had criticized the mayor. In fact, the mayor had nothing to do with the action by the city health inspectors. While the columnist had no evidence of the mayor's involvement, he believed that there was a connection because "that's how the city works." Can the mayor recover against the columnist for defamation?

The mayor cannot recover against the columnist because he did not act with actual malice. A public official, such as a mayor, may not recover for defamatory words relating to his official conduct unless there is clear and convincing proof that the statement was made with actual malice, which is defined as knowledge that the statement was false or reckless disregard as to truth or falsity. Reckless conduct is not measured by whether a reasonable person would have investigated before publishing; rather, there must be a showing that the defendant in fact (subjectively) entertained serious doubts as to the truthfulness of his publication. Here, while the columnist had no evidence of the mayor's involvement with the action of the health inspectors, he believed that there was a connection based on his belief as to how the city operates. Hence, he has not acted with actual malice and is not liable to the mayor for defamation. (B) is incorrect because the columnist's qualified privilege applies only to statements made to defend his own actions, property, or reputation. Even if it were to apply to his explanation of why his family's restaurant was shut down, his statements in the column were beyond the scope of the privilege, which does not extend to making a statement to a mass audience whose reading of the statement would not reasonably further his interest in defending himself. Here, the publication in his newspaper column of his explanation as to why the restaurant was shut down was beyond the scope of any privilege he may have had. (C) is incorrect because malice that will result in the loss of a qualified privilege is defined by most courts as knowledge of falsity or reckless disregard as to truth or falsity, rather than hostility or ill-will. As long as the defendant is using a proper occasion for a qualified privilege in a proper way, he will not lose this privilege simply because he bears ill-will toward the plaintiff. (D) is incorrect because the fact that the columnist should have investigated the accuracy of his assertions and did not only establishes negligence on his part. As discussed above, the mayor, as a public official, must show at least reckless disregard as to truth or falsity to recover in a defamation action.

A man working at a clothing store discovered that his girlfriend, a coworker, had been taking money from the cash register. Not wanting to be a party to the situation, he ended the relationship and found another job. Not long after this, the man's new boss, who knew why the man had quit, came into the clothing store. He asked the girlfriend if she missed her boyfriend working with her at the store. She replied, "Yes, but when we found that he was stealing from the cash register, we had no choice but to let him go." If the man sues his former girlfriend for defamation, the fact that the new boss knew the truth of why the man had left his job at the store will have what result?

The new boss's knowledge of the true circumstances behind the man's departure from the store may diminish the man's recovery. The girlfriend is liable for defamation because she made a defamatory statement about the man to a third person. As long as it is understood in its defamatory sense, an accusation need not be believed to be actionable. Because the statement that he was stealing at his job constituted slander per se, damages are presumed. Hence, (A) is wrong. (B) is wrong because actual injury encompasses not only damage to reputation but also humiliation and mental distress, for which the man could recover even though the new boss did not believe the girlfriend's statement. (D) is wrong because the fact that the new boss did not believe the statement does not prove lack of basis for the girlfriend to have made it.

For conversion, the defendant must have the intent to __________ with the plaintiff's right of possession.

The only intent required is the intent to perform the act that interferes with the plaintiff's right of possession. The defendant need not intend to commit a serious act of interference, or even to interfere, with the plaintiff's right of possession. Even if the conduct is wholly innocent, liability may attach where the interference is serious in nature. Hence, even a bona fide purchaser of chattel may become a converter if the chattel had been stolen from the true owner.

If a statute providing for a criminal penalty is applicable to a common law negligence case, the statute's specific duty will replace the more general common law duty of care. Which of the following does a plaintiff not need to show to prove the availability of the statutory standard?

The plaintiff suffered physical injury because of the defendant's violation of the statute.

A company that owned a tract of land believed to be rich in mineral deposits contracted with a licensed excavator for the removal of soil from the property and delivery of the soil to the company's laboratories. While one of the excavator's trucks was on the way to the laboratory, the rear gate broke loose, dumping three tons of soil onto the highway. A motorist who was driving a short but safe distance behind the truck was unable to stop in time and collided with the soil, causing her serious injury. The rear gate had been negligently secured by one of the excavator's employees. If the motorist sues the company for his injuries and does not prevail, what is the most likely reason?

The strongest basis for the motorist not prevailing is the absence of a nondelegable duty. The general rule is that a principal will not be liable for tortious acts of its agent if the agent is an independent contractor. However, a broad exception will impose liability on the principal if the duty is nondelegable because of public policy considerations. As long as the company was not subject to a nondelegable duty, it would not be liable for the negligence of the excavator's employee in the transportation of its soil. (A) is not as good an answer as (C) because the fact that the accident was caused by the negligence of the independent contractor's employee does not necessarily excuse the company from liability. (C) supplies the additional factor that enables the company to avoid liability. (B) is incorrect because the possession of a license by the excavator would not excuse the company from liability. (D) is incorrect because the fact that the transportation of soil was common to the area is relevant only for a strict liability action for abnormally dangerous activities, and the transport of soil by truck is not such an activity.

In contrast to products liability cases based on negligence, those based on strict liability do not:

Unlike with products liability cases based on negligence, those based on strict liability do not require that suppliers have an opportunity to inspect. Thus, for a case based on the sale of a defective product, a retailer in a strict liability action may be liable for a manufacturing or design defect simply for being a commercial supplier of that defective product, even if it had no opportunity to inspect the manufacturer's product before selling it. In a negligence action, the supplier's negligence must be proved. Products liability cases based on negligence and those based on strict liability both require that an injured bystander be foreseeable. While privity is not required in these cases, and bystanders are protected and may bring a claim under either theory, they must be foreseeable plaintiffs. Liability under these theories applies only to foreseeable plaintiffs. Products liability cases based on negligence and those based on strict liability both prohibit recovery of solely economic losses. The types of damages recoverable under both theories are the same: personal injury and property damages. Economic loss cannot be the sole damage claim. As under claims based on negligence, those based on strict liability will impose liability even though an intermediary negligently failed to discover the defect. The same concepts of proximate cause govern negligence and strict liability actions. The negligent failure of an intermediary to discover a defect is not a superseding cause and does not cut off the supplier's strict liability. However, if the intermediary's conduct becomes something more than ordinary foreseeable negligence, then it does become a superseding cause.

With regard to a trespass to chattels, intermeddling is defined specifically as conduct that:

With regard to a trespass to chattels, intermeddling is defined specifically as conduct that directly damages a plaintiff's chattel. A prima facie case of trespass to chattels requires proof of an act by the defendant that interferes with a plaintiff's right of possession in the chattel. The act of interference generally takes two forms: dispossession and intermeddling. Intermeddling involves conduct by a defendant that in some way directly damages the plaintiff's chattel, e.g., denting his car, striking his dog, etc. Intermeddling does not involve conduct by a defendant that dispossesses a plaintiff of his lawful possessory right in the chattel. This more accurately defines the type of interference with a chattel known as dispossession. Defining intermeddling specifically as conduct that interferes with a plaintiff's right of possession is inaccurate because it is too broad; it describes the general conduct that is required for the prima facie case of trespass to chattels. Any act of interference will suffice for this tort; intermeddling is one of the two most common forms of conduct that the act of interference typically will take (the other is dispossession)