Torts 1-10

Legal elements of negligence

1. Defendant owed plaintiff a duty 2. Standard of care by reasonable prudent person 3. Defendant, by behavior, breached that duty 4. Plaintiff suffered ACTUAL damage (not emotional) 5. Defendant's negligence was cause of damage (cause-in fact) 6. Defendant's negligence was a "proximate cause" of the damage

Based on your reading of the Pipher v. Parsell case, which legal principles of breach of duty are considered by the court?

1. Negligence is conduct that creates an unreasonable risk. 2. Whether a reasonable person would foresee that harm might result from his actions. 3. Proof of negligent conduct may require examination of the defendant's conduct and any alternate conduct the defendant should have engaged in to avoid the injury caused.

Defendant decides to burn his copy of a torts casebook and throws it into the fire. By mistake, he threw the plaintiff's copy into the fire instead. Defendant is liable for which of the following:

Conversion (CB page 65.)

Rob had been lusting after Joe's lovingly restored 1968 Mustang Fastback for months. Finding the keys in the car one Saturday, Rob was overcome with his desire for the car and decided to take the Mustang on a drive around the block. Just before turning the block to bring the car back, Rob decided to show the car off to his friends before returning it. After driving around town showing off the car for an hour, Rob realized that he had better return the car before Joe noticed that the car was missing. As Rob was headed back to return the car to Joe, Rob decided to race another car that pulled up next to him at a stoplight. While racing, Rob lost control of the Mustang and collided with a utility pole - totally destroying Joe's Mustang. Rob is liable for:

Conversion, because Rob either substantially interfered with Joe's possession of the Mustang, or completely deprived Joe of possession of the Mustang. The distinction between trespass to chattels and conversion is one of degree. The Restatement of Torts identifies six factors to determine whether the defendant's interference with the plaintiff's personal property is sufficiently serious to constitute conversion. Here, most (if not all) of the elements are present: (a) the extent and duration of interference was significant—a quick joyride around the block or to the local shopping mall is one thing, but to enter into a high speed race is a much greater extent of interference; (b) the defendant intended to use the vehicle in a manner that grossly exceeded the permission given thus acting inconsistent with the owner's right of control—there was no permission given here; (c) the defendant acted in bad faith by simply taking the car without asking or expressing any concern whether the owner needed it during that time; (d) the limited duration and extra mileage might not be considered a very serious interference with the owner's right to use the car; (e) the harm done to the chattel was very serious (complete destruction of the vehicle); and (f) the inconvenience and expense of replacing a lovingly restored classic automobile would be very high. When examined in the aggregate, the intentional and bad faith nature of the taking coupled with the serious amount of damages Joe suffered due to Rob's actions would be sufficient to justify a finding of conversion rather than mere trespass to chattels on these facts. Review UT 5th Edition, Section 1.06

Intentional tort to property

Conversion; Trespass to chattels

Which of the cases identified below held that a mentally disabled defendant who was hospitalized because of Alzheimer's disease does not owe any duty of care to his professional caregiver and is thus not liable for negligence in causing any physical injury to that caregiver?

Creasy v. Rusk, 730 N.E. 2d 659 (Ind. 2000). (pages 118-120 of CB)

Which of the following statements is not true regarding whether negligence is more probable than not in res ipsa loquitur cases?

In determining the probabilities that the defendant was somehow negligent, judges must not draw on their own common experiences in life rather they should draw solely on actual data.

Based on your reading of the of the Thoma v. Cracker Barrel Old Country Store, Inc. case, which of the following statements most accurately states the court ruling?

In slip and fall cases, plaintiff must show that the premises owner either created a dangerous condition or had actual or constructive knowledge of a dangerous condition.

What are required element of trespass to land?

Intent, Physical Invasion, Volition (UT Section 18.02)

Conversion

Intentional tort; tangible property

Battery

Intentional unconsented contact, defendants acts intentionally cause harmful or offensive contact with victim

3 torts

Intentional, negligence, strict liability

Tort Assault

Intentionally places plaintiff in reasonable apprehension of battery; Intent, reasonable apprehension, imminent battery

res ipsa loquitur

It is a form of circumstantial evidence to aid plaintiff in establishing unreasonable conduct.

Which of the following represents the best rule statement for battery?

A battery occurs when the Defendant's acts intentionally cause harmful or offensive contact with the victim's person. (UT 5th Ed. Page 7.)

The defendant's conduct in GTE Southwest, Inc. v. Bruce did involve the following?

A regular pattern of harassment, intimidation and humiliation. Abuse of power by someone in authority. Severe abusive and threatening conduct. (pages 582-583 of CB)

Restatement (2d) of Torts provides an actor commits battery if

Actor intends to cause harmful or offensive contact AND when harmful or offensive contact directly or indirectly occurs.

Liability for battery

Acts intending to cause harmful or offensive contact AND when harmful or offensive contact occurs

What are required element of trespass to chattels?

Actual damage, substantial deprivation, or dispossession. Interference, and Personal property. Bad motive not required (UT 5th Ed. Page 26)

Which of the cases that were included in the assigned reading for module 5 held that a 16 year old plaintiff had stated a claim for battery when facts revealed she had consented to surgery on the condition that transfusions are made only with family donated blood, but that blood was not used and plaintiff contracted HIV?

Ashcraft v. King, 278 Cal. Rptr. 900 (Ct. App. 1991). (page 91 of CB)

Trespass to chattels

Bad motive not required; actual damage, substantial deprivation, disposition and interference of personal property

False imprisonment

Bad motive not required; bounded area, causation or intent, confinement

What is the role of the jury in deciding unreasonableness?

Because reasonableness is a question of fact, the jury always decides this issue, subject to the judge's right to make the ultimate decision.

Based upon the reading of the of the Warren v. Jefferies case, which of the following is a valid reason why the doctrine of res ipsa loquitur did not apply?

Because there was no evidence of the condition of the brakes.

What are required elements of false imprisonment?

Bounded area, Causation, Confinement, bad motive not required. (CB page 61)

Circumstantial evidence facts

Circumstantial evidence is often the most important evidence in tort cases. Circumstantial evidence is evidence of one fact that permits an inference of another fact. Circumstantial evidence can benefit both the plaintiff's and defendant's case.

In Vincent v. Lake Erie Transportation, 124 N.W. 221 (Minn. 1910), set forth in the assigned reading for Module 5, the court held as follows:

Defendant acted reasonably and prudently in availing itself of the plaintiff's property for the purpose of preserving its own more valuable property. (pages 99-101 of CB)

Which of the following is the best definition of intent with regard to battery?

Defendant acts with a desire or has knowledge to a substantial certainty that a harmful or offensive touching will occur. (CB page 42.)

Intent to battery

Defendant acts with desire or has certain knowledge to a substantial certainty that a harmful or offensive touching will occur

With regard to Plaintiff's claim for battery in Cohen v. Smith, what makes the touching offensive?

Defendant knew that the touching was unconsented to. (CB pages 36-38.)

Intent

Desire the result or knows to substantial certainty

Dunbar was an avid fisherman. One day while fishing for rainbow trout on a remote mountain stream, Dunbar slipped on a wet rock and fell into the stream. Although Dunbar was unhurt in the fall, his glasses fell into the stream and were lost. Unfortunately, Dunbar was virtually blind without his glasses. While he could make out certain shapes and colors, he could not be sure what he was seeing. He decided he would have to slowly hike back to his home in a nearby town, trying his best to follow a proper path. As Dunbar was about to leave the woods and emerge onto a public road, Dunbar was convinced a bear was approaching him. Since there had been a number of bear sightings in recent weeks and a couple of town folk had actually been mauled, Dunbar hid behind a tree. As the bear approached, he grabbed a dead limb that had fallen off of the tree and hit the bear over the head, knocking it unconscious. In actuality, the "bear" was a neighbor, Phil, who had dressed as a bear to attend a costume party scheduled for that evening. Phil had walked into the woods dressed in his bear costume to play a joke on his wife, Doris. Since Dunbar was without his glasses, he honestly thought the "bear" was real. Doris witnessed Dunbar hit the "bear" over the head with the tree limb and walk away. Since she knew that the "bear" was Phil in costume, she became enraged. She ran into their house, grabbed a pistol and shot at Dunbar as he walked off. Dunbar did not see Doris because he was without his glasses, and was not aware that Doris had shot at him, even though the bullet passed within inches of Dunbar. The next day, Doris went to Dunbar's house and apologized for shooting at him. Dunbar was enraged to hear that he had almost been killed by Doris' actions. If Phil brings an action against Dunbar for battery, which of the following would provide the best defense for Dunbar?

Dunbar did not know that he was hitting a person. Because the tort of battery requires a showing that the defendant commit a voluntary act with the intent to cause a harmful or offensive touching of the plaintiff. The intent element is missing if the defendant does not intend (or have knowledge to a substantial certainty) that his act will cause a harmful or offensive touching to a person. Thus, if Dunbar thought he was hitting a bear instead of a person, then he lacked the intent required for battery. Choice (B) is not the best choice here, although an argument can be made that Dunbar was acting toward the "bear" because he reasonably believed the "bear" was about to attack him. When asked for the best defense to tort (or criminal) liability, it is preferable to choose an answer choice that properly identifies one of the elements of the tort that has not been established by the facts, rather than a choice that identifies a possible affirmative defense to the tort. Self-defense is an affirmative defense, but if Dunbar lacked the requisite intent, an affirmative defense is not relevant. Choice C is incorrect because, while consent can be implied from the circumstance, there would be no reason to believe that Phil's act of wearing a bear costume into the woods was an implied consent to being hit with a tree limb. Choice (D) is incorrect because the plaintiff does not have to be seriously hurt to sue for battery. Any touching that is considered to be harmful or offensive will be sufficient, even if it does not seriously injure the plaintiff. Review UT Section 1.01 INTENT.

Safety custom

Evidence that defendant violated customary safety precautions of the relevant community is usually sufficient to get plaintiff's case to the jury. A defendant who complied with all safety requirements of a statute might still be negligent. In many courts, plaintiff has been allowed to introduce into evidence safety manuals written by private organizations to show that defendant, in failing to follow such manuals, fell below the standard of reasonable care.

Tort battery

Exclusively intentional, accidental must be analyzed under negligence or strict liability

Which of the following statements is true regarding whether negligence is more probable than not in res ipsa loquitur cases?

For res ipsa loquitur to apply a court may require the plaintiff to sufficiently exclude the inference of the responsibility of others besides defendant in causing an accident.

Joker was invited to a cocktail party at the home of Host. Joker knew that Host was terribly afraid of mice so Joker brought his pet mouse in his pocket to the party intending to play a joke on Host in the middle of the party by letting the mouse run across the dinner table when everyone was seated. Spoiler, another party guest, found out about Joker's plan to let the mouse run across the dinner table and immediately informed Host right after Joker sat down at the table. Host was relieved, but had to retire to the bedroom and lie down when Host thought about how close Host had come to having her entire party ruined by Joker. If Host brings a lawsuit against Joker for intentional infliction of emotional distress, Host will need to prove the following in order to recover damages:

Joker's conduct was extreme and outrageous. Host must have suffered severe mental distress. Because under the definition of the tort a showing that the defendant committed a voluntary act which amounts to extreme and outrageous conduct with the intent to cause (and which in fact does cause) the plaintiff to suffer severe emotional distress is required. The elements suggested in I (intent to physically injure) and IV (physical injury) are not required to recover for this tort. Review UT 5th Edition , Section 1.05.

Which of the cases that were included in the assigned reading for Module 5 based its holding, in part, on the Restatement of Torts Section 85 rule that a land possessor has no privilege to use force intended to cause death or serious bodily injury against a person who is about to enter his premises unless the invasion threatens death or serious bodily harm to the land occupiers or users?

Katko v. Briney, 183 N.W.2d 657 (Iowa 1971). (page 79 of CB)

Which case in the assigned reading for Module 10 held that where the tortious acts of two or more tortfeasors join together to produce an indivisible injury, all of the wrongdoers will be held jointly and severally liable for the entire damages and plaintiff can proceed against any one tortfeasor separately or against all of them in one suit?

Landers v. East Texas Salt Water Disposal Co., 248 S.W.2d 73 (Tex. 1952). (pages 215-216 of CB)

Transferred intent

Legal intention to hurt may be transferred if mistaken

Strict liability

Liability without fault; only prove that tort occurred

The Restatement (Second) of Torts, section 76, provides that the defense of other persons privilege is:

Limited to only defense of family members; Available if the defendant made a reasonable mistake as to the need to intervene or defend the third party. (page 78 of CB)

A intends to hit B with ink and misses, but hits C's book instead, completely destroying the book. Can the defendant be held liable for conversion?

No because transferred intent is not applicable to conversion. (UT 5th Edition page 28.)

Trespass to land

No damage required; intent, physical invasion, volition

Dale and Ferguson were sitting in a coffee shop watching a television program about a controversial political issue when Dale reached out and grabbed Ferguson's shirt. Ferguson pushed Dale and knocked Dale down. Perris, another coffee shop patron, attempted to get between Ferguson and Dale to break up the fight. While attempting to strike Ferguson, Dale swung his fist and struck Perris. Perris brought a battery action against Dale In this suit, which of the following defenses will be successful if asserted by Dale against Perris? I. Perris was a stranger to Dale and Ferguson with no legal obligation to break up the fight. II. Dale did not intend to strike Perris. III. Dale did not intend to strike Ferguson, only to frighten Ferguson.

None of the above is correct because Dale would be liable to Perris for battery despite any of the three defenses raised. When Dale swung at Ferguson and struck Perris, Dale committed a voluntary act that was intended either to cause a battery (if intended to make contact with Ferguson) or an assault (if intended merely to cause Ferguson to apprehend being struck). Under the doctrine of transferred intent, the intent to commit an assault (or battery or false imprisonment) will be sufficient to supply the intent element for one of the other personal injury torts (i.e., assault, battery, false imprisonment). Moreover, the transferred intent doctrine also allows that the commission of any of these torts against one victim (e.g., Ferguson) will transfer to apply to the actual victim (e.g., Perris). Review UT page 4.

Which case held that a statute and regulation that required the defendant to fence or otherwise block access to a landfill established the defendant's duty under negligence per se and replaced the common law duty of a landowner to trespassers?

O'Guin v. Bingham County, 122 P. 3d 308 (Idaho 2005). (page 130-132 of CB)

Santiago v. First Student, Inc. case determined

One cannot prove unreasonable risk without establishing specific facts of conduct.

Why was the Defendant's motion to dismiss properly granted in Van Camp v. McAfoos?

Plaintiff 's complaint failed to allege fault. (CB pages 8 -10.)

Joint and several liability permits which of the following results? Both A & B.

Plaintiff can enforce an entire judgment against any of the defendants individually. If one defendant pays more than his proportional share of liability, he can seek contribution for the excess from the remaining defendants. (page 802-803 of CB)

Statement that best describes joint and several liability?

Plaintiff can obtain a judgment against two defendants who are both 50% liable, and collect the full judgment against any one of the tortfeasors.

Regarding res ipsa loquitur in exploding bottle cases, under California law, which of the statements is true?

Plaintiff could use res ipsa loquitur by showing that defendant had control at the time of probable negligence.

Regarding multiple defendants in res ipsa loquitur case, which of the following statements is true?

Plaintiff will have a better chance of establishing a res ipsa case if simultaneous control of the relevant instrumentality by two or more defendants is established rather than if consecutive control of the relevant instrumentality is established.

A plaintiff must prove both actual cause and proximate cause to prevail in a negligence action. Which form of causation involves a matter of principle or policy as to whether the defendant should be held liable for the plaintiff's harm?

Proximate cause. (page 212 of CB)

Under which of the legal theories listed below can a defendant be held liable for harm to plaintiff despite the fact that defendant's actions were not a but-for cause of the harm?

Respondeat superior. (page 214 of CB)

Which case, in the assigned reading for Module 10, held that the technical legal injury concept (which permits recovery of nominal damages) does not apply to negligence actions?

Right v. Breen, 890 A.2d 1287 (Conn. 2006).

Cause of action

Set of facts sufficient to justify right to sue

Which case held that a plaintiff with a physical disability of impaired vision would be held to the standard of care that an ordinarily prudent person with a similar disability would have exercised under the same or similar circumstances?

Shepherd v. Gardner Wholesale, Inc., 256 So.2d 877 (Ala. 1972). (page 116 of CB)

Chapter 19 of the casebook entitled "Emotional Harm" is concerned primarily with which of the following claims or injuries?

Stand-alone claims for emotional distress. (page 581 of CB)

The doctrine of negligence per se applies to which of the following types of statutes?

Statutes that declare conduct to be unlawful, but are silent as to civil liability. (page 129 of CB)

Which one of the following tests will a court usually apply in negligence actions where there are multiple redundant causes of plaintiff's harm?

Substantial factor test.

What is not an element of res ipsa loquitur?

That the defendant was probably not negligent.

In defense of one's property, an individual is privileged to use:

The amount of force reasonably necessary to overcome resistance and expel the intruder. (pages 80-81 of CB)

Regarding procedural incidents and effects of res ipsa loquitur, which of the following statements is true?

The basic application of res ipsa loquitur is that the case will be given to the jury and then it will be up to the jury to finally determine if there was negligence.

In determining the standard of care to be applied to children in a case involving a statutory violation and negligence per se, most jurisdictions hold:

The child standard of care should be applied, unless the child was engaged in an adult activity at which point the statutory negligence per se standard should be applied. (Section 6.05 of UT)

Definitions of breach of duty

The defendant's failure to meet the standard of care. The defendant's failure to act as a reasonable person would have acted under the same or similar circumstances. The unreasonable conduct by the defendant.

Which of the following statement is true regarding res ipsa loquitur?

The doctrine does not apply when there is direct evidence as to the precise cause of the injury and all of the facts and circumstances attending the occurrence of that injury.

Which of the following statements is a true statement of the law?

The doctrine of transferred intent allows the defendant to be found liable for battery if he acts intending to commit an assault, but commits a battery instead. (UT page 4.)

Which of the following best represents the holding in Cullison v. Medley?

The facts alleged and testified to could allow a jury to find the defendants liable for assault. (CB pages 54 - 56.)

Based upon your reading of the United States v. Carroll Towing Co. case, cite statements regarding the "Risk Calculus" Theory that are true.

The formula expressed was that a breach of duty exists if "B is less than L multiplied by P." The "L" in the formula referred to the injury suffered by the plaintiff. Judge Hand determined that the burden of taking adequate precautions was less than the gravity of the resulting injury times the probability that the barge would break away. The formula was intended to be flexible.

Based on your reading of the of the Giles v. City of New Haven case, what best addresses the issue of exclusive control in res ipsa loquitur cases?

The growing trend is not to apply the control condition as a fixed, mechanical and rigid rule.

Which of the following facts was most relevant to the court's holding in Homer v. Long?

The plaintiff was not present when the defendant acted. (pages 586-587 of CB)

In Robinson v. Lindsay, 598 P.2d 392 (Wash. 1979), the court held that the 13 year old defendant, driver of the snowmobile causing personal injury to the 11 year old plaintiff, would be held to the following standard of care in determining the negligence claim:

The standard of care that would be exercised by an adult because the child was engaged in an inherently dangerous activity. (pages 123-125 of CB)

Before a statute can be used to provide the standard of care under a negligence per se theory, the judge must determine which one of the following?

The statute was designed to address the type of harm the plaintiff suffered. (Section 6.042 of UT).

What is test of regarding deviation from custom?

The test is whether or not the practice is widespread enough that defendant knew or should have known of the custom.

Which one of the following statements best describes the holding in Impson v. Structural Metals Inc., 487 S.W.2d 694 (Tex. 1972)?

There was no evidence of a legally acceptable excuse for the violation of the statute; thus, the driver's violation provides the basis for negligence per se. (pages 137-138 of CB)

Timmy and Tommy are two ten-year olds who found a can of black spray paint and were spraying paint on the wall of a commercial building. Shopper, a customer coming out of the building, came outside and saw the two boys spraying the paint on the side of the building. Timmy saw Shopper approaching and ran off. Before Tommy could run, Shopper was standing behind him. Tommy put the spray can down. Shopper lowered his voice and told Tommy, "You know that you shouldn't be doing this...come with me." Tommy dutifully followed Shopper and they both walked back toward the entrance of the commercial building. Just as they were approaching the entrance, Tommy turned and ran home. Tommy told his parents what happened and they brought a false imprisonment suit, on Tommy's behalf, against Shopper. If Shopper prevails, it will most likely be because

Tommy did not reasonably believe that force might be used if he tried to escape. Because the tort of false imprisonment requires that the defendant commit a voluntary act with the intent to confine or restrain the plaintiff to a bounded area and such confinement or restraint actually occurs. The restraint or confinement may result from actual physical barriers, or the actual or threatened use of immediate force to confine or restrain the plaintiff. Here, Shopper did not place any physical barriers around Tommy and did not use force to confine or restrain him. Thus, there is no false imprisonment liability unless Shopper threatened to use force. If a reasonable person of Tommy's age and intelligence would not have believed that Shopper's command would be supported by the use of force if not obeyed, then there was no false imprisonment. Mere moral pressure (i.e., Shopper's attempt to get Tommy to obey by making Tommy feel guilty) is not enough absent a reasonable fear that actual force would be used. Review UT Section 1.04 [C][2] Force or Threat of Immediate Force.

Joint tortfeasors include which of the following groups? All of the above

Two or more individuals who act independently but cause a single, indivisible tortuous injury to the plaintiff. Two or more individuals who act in concert to commit a tort which causes injury to the plaintiff. Two or more individuals who share legal responsibility for a tort under a theory of vicarious liability. (UT Section 13.02)

Which of the following statements is true regarding the effect of a defendant's mental disability in a negligence action?

Virtually all jurisdictions treat mental disabilities as irrelevant for purposes of determining negligence liability. (page 53 of UT)

A violation of a criminal statute will be excused by most jurisdictions under which one of the following circumstances?

When compliance with the statute would have required greater danger than the violation. (Section 6.04 of UT)

Which of the following is not an important factor in determining whether a defendant successfully can assert self-defense to a claim of battery?

Whether the defendant could have retreated before using force. (pages 77 of CB)

In Peters v. Menard, Inc., 589 N.W.2d 395 (Wis. 1999), set forth in the assigned reading for Module 5, the court held as follows:

Wisconsin law provides immunity to a merchant or its agents for actions taken to detain and pursue a suspected shoplifter if there was reasonable cause to believe the person stole, the manner of detention and actions to detain were reasonable, and the length of detention and actions take to detain were reasonable. (pages 87 of CB)

A , within striking range of B, strikes out at B, even though B is confident she can move to avoid A's contact. Is A liable for assault?

Yes because B was aware of A's attempted contact. (UT page 12.)

Defendant locks a baby in a bank vault with a time lock that was released one minute later. The baby is not conscious of the confinement but has difficulty breathing. Can the Defendant be held liable for false imprisonment?

Yes because the baby had difficulty breathing. (CB page 62.)

Sam was a regular at Mary's Bar. He and the other regulars had a joke routine they used whenever a likely stranger walked in. One patron would say "Officer, that's the one", and Sam would pretend to be the local sheriff and place the stranger under arrest for robbery. When newcomer Dave walked in the gang began the routine and Sam, using his fake sheriff's badge, told Dave he was under arrest and made him raise his hands and clasp them behind his head. Dave seemed upset, but Sam refused to let him move, again repeating that he was the sheriff. As the other patrons crowded around, jeering and laughing, Dave, overcome, began to faint. As he started to fall, Sam caught him and lowered him to the ground. Dave soon recovered and the joke was explained. Even though the crowd offered to buy him a drink, he remained upset and sued Sam. Will Dave recover?

Yes, for false imprisonment. By telling Dave that he was under arrest, Sam intentionally caused Dave to believe that he was confined to a bounded area with no reasonable means of escape -- the requirements for false imprisonment. The tort is established because the defendant had no legal right to arrest the plaintiff. Compliance with the invalid assertion of legal authority is sufficient for false imprisonment liability. B is incorrect because there is no liability for battery. Sam did not intend any harmful or offensive touching, nor did Dave experience any harmful or offensive contact -- the requirements for battery. No emotional distress is required to recover damages for either of these two torts. A is incorrect. While it might reduce the damages Dave might recover, the fact that a reasonable person may have discovered that Sam was joking is no defense to the underlying tort liability incurred by Sam at the moment he falsely arrested Dave. Review UT Section 1.02 [C] Harmful or Offensive Contact and Section 1.04[C][4] Improper Assertion of Legal Authority

Xenophobia is a small rural town in a remote area of State Green. Most of the residents of Xenophobia have lived in the town for their entire lives and they are not friendly to strangers or new residents. Stranger and his family moved to Xenophobia to protect them from a violent civil war that erupted in their homeland, Alienation. One week after moving into Xenophobia, Stranger received a signed letter from all the members of the Xenophobia Town Council which stated that "You have 3 days to pack up your things and go back where you came from...or else you and your family may experience a horrible accident." If Stranger brings suit against the members of the Xenophobia Town Council, will Stranger recover damages?

Yes, if Stranger suffered severe emotional distress. Because the members of the Xenophobia Town Council would be liable for the tort of intentional infliction of emotional distress. The tort requires a showing that the defendant committed a voluntary act which amounts to extreme and outrageous conduct with the intent to cause (and which in fact does cause) the plaintiff to suffer severe emotional distress. Here, by writing the letter intending to threaten Stranger into leaving town, the members of the Xenophobia Town Council clearly intended Stranger to suffer severe emotional distress. If Stranger did in fact suffer such distress, Stranger would prevail in this action. Review UT 5th Edition , Section 1.05.

A and B owned two adjacent lots. Both parties had begun construction of a house and garage on their lot. Unknown to either party, A's garage, when completed, would encroach onto B's land by three feet. After he had finished construction of the house and garage (which did in fact encroach onto B's land by three feet when completed), A sold the house, garage and lot to Davis. Two weeks later, B discovered that the garage on Davis' property encroached onto B's land. B brought a suit for trespass to land against A. Will B prevail?

Yes, regardless of whether A knew or had reason to know of the encroachment. Mistake is no defense to the tort of trespass. Trespass to land exists if the defendant voluntarily and intentionally enters the land of another. The "intent" element is satisfied if the defendant (or here, the defendant's garage) intended to enter the property -- regardless of whether the defendant knew or had reason to know that the property entered actually belongs to someone else. Review UT Section 18.02 [B] The Requirement of Intent.

The Uniform Contribution Among Tortfeasors Act, section 4 in the assigned reading for Module 10 provides that

a release of one tortfeasor does not discharge any of the remaining tortfeasors, unless the terms of the release expressly provide for discharge of those remaining tortfeasors. (page 807 of CB)

At the county fair, Ann dropped Larry's pie as she attempted to put the pie on display at the apple pie contest. The pie was ruined and could not be entered in the contest. Larry suspected that Ann's mishandling of the pie was no accident. Larry decided to pay Ann back by destroying Ann's pie before the judging. Rushing up behind Ann in the crowd at the fair, Larry yelled her name. Ann spun around in time to see Larry swinging his fist at Ann who quickly ducked just in time to avoid Larry's fist. Larry's fist missed the pie and Ann, striking Vern - one of the pie contest judges who happened to be in the wrong place at the wrong time. Neither Ann nor her pie suffered any harm as a result of Larry's attack. In a suit brought by Ann and Vern seeking damages, Larry is liable for:

both the assault of Ann and battery of Vern. Because when Larry swung at Ann and struck Vern, Larry committed a voluntary act that was intended either to cause a battery (if intended to make contact with Ann) or an assault (if intended merely to cause Ann to apprehend being struck). (D) is incorrect because the victim of an intentional tort need not experience any physical or economic harm in order to recover damages as long as the requisite act is committed is intentionally committed with the proper result (i.e, contact for battery, apprehension for assault, etc.). Under the doctrine of transferred intent, the intent to commit an assault (or battery or false imprisonment) will be sufficient to supply the intent element for one of the other personal injury torts (i.e., assault, battery, false imprisonment). Moreover, the transferred intent doctrine also allows that the commission of any of these torts against one intended victim (e.g., Ann) will transfer to apply to the actual victim (e.g., Vern). Review UT page 4.

To prevail in a claim for negligence, the plaintiff must establish all elements of the tort

by a preponderance of the evidence. (page 45 of UT)

The essential legal elements of a negligence claim are best described as

duty, standard of care, breach of duty, cause-in fact, proximate cause, and damages. (page 45 of UT)

Alan and Bob worked for the ACME company as sales associates and sat next to each other on the sales floor. After Bob left work one day, Alan decided to "play a joke" on Bob and loosened all the screws on Bob's desk chair so it would not support him when he returned to work the next day. When Bob came into work the next morning, he pulled out his chair and attempted to sit down. The chair collapsed and Bob fell to the floor. Alan and his co-workers stood up, applauded and began to laugh uncontrollably while pointing at Bob. Bob was humiliated, turned bright red and quickly left the building. Bob was unable to return to his employment with ACME because of recurrent flashbacks and emotional trauma. Bob began treatment with a psychologist who causally connected his fragile emotional state to his employment incident at ACME. Bob subsequently files a lawsuit against Alan and asserts a claim for intentional infliction of emotional distress. Bob's claim will most likely

fail, if Alan's conduct was not "extreme and outrageous." In order to establish the tort of intentional infliction of emotional distress, four elements must be satisfied; (1) the Defendant must have acted intentionally or recklessly; and (2) the Defendant's conduct was extreme and outrageous; and (3) the Defendant's act is the cause of such distress; and (4) Plaintiff suffers severe emotional distress as a result of Defendant's conduct. Although Alan's conduct here was intentional, he was "playing a joke" on Bob and his conduct would not be actionable for the tort of intentional infliction of emotional distress unless it rose to the level of being so extreme or outrageous to "shock the conscience" or violate standards of human decency.

Hus and Wif are married and suffering from marital difficulties. Wif sought counseling from Therapist, a licensed family counselor. After several weeks of counseling in which Wif told Therapist about the intimate details of her marital problems with Hus, Wif and Therapist began a consensual sexual relationship. After several months, Hus discovered that Wif and Therapist are having an affair and instituted a divorce action against Wif. Wif broke off the relationship with Therapist and had to seek a psychiatrist to treat her for depression and other mental trauma. After the divorce decree is entered, Wif brought an action against Therapist. The best theory for Wif to assert in order to recover damages from Therapist would be

intentional infliction of emotional distress. Because the tort of intentional infliction of emotional distress requires a showing that the defendant committed a voluntary act which amounts to extreme and outrageous conduct with the intent to cause (and which in fact does cause) the plaintiff to suffer severe emotional distress. Engaging in an affair with a patient who already is suffering marital difficulties could easily be found to constitute extreme and outrageous conduct by Therapist. So long as Wif's distress was severe (which it appears to be because of her depression and mental trauma), she would recover under this tort theory. Neither assault or battery would likely be successful because the sexual contact was consensual and consent is a defense to these torts. No invasion of privacy action would succeed because Wif voluntary disclosed her marital problems to Therapist and there are no facts to suggest that Therapist revealed this information to others. Review UT 5th Edition , Section 1.05.

Original fact pattern: Dunbar was an avid fisherman. One day while fishing for rainbow trout on a remote mountain stream, Dunbar slipped on a wet rock and fell into the stream. Although Dunbar was unhurt in the fall, his glasses fell into the stream and were lost. Unfortunately, Dunbar was virtually blind without his glasses. While he could make out certain shapes and colors, he could not be sure what he was seeing. He decided he would have to slowly hike back to his home in a nearby town, trying his best to follow a proper path. As Dunbar was about to leave the woods and emerge onto a public road, Dunbar was convinced a bear was approaching him. Since there had been a number of bear sightings in recent weeks and a couple of town folk had actually been mauled, Dunbar hid behind a tree. As the bear approached, he grabbed a dead limb that had fallen off of the tree and hit the bear over the head, knocking it unconscious. In actuality, the "bear" was a neighbor, Phil, who had dressed as a bear to attend a costume party scheduled for that evening. Phil had walked into the woods dressed in his bear costume to play a joke on his wife, Doris. Since Dunbar was without his glasses, he honestly thought the "bear" was real. Doris witnessed Dunbar hit the "bear" over the head with the tree limb and walk away. Since she knew that the "bear" was Phil in costume, she became enraged. She ran into their house, grabbed a pistol and shot at Dunbar as he walked off. Dunbar did not see Doris because he was without his glasses, and was not aware that Doris had shot at him, even though the bullet passed within inches of Dunbar. The next day, Doris went to Dunbar's house and apologized for shooting at him. Dunbar was enraged to hear that he had almost been killed by Doris' actions. If Dunbar sues Doris for assault, Dunbar will

not recover, because Dunbar was not aware of Doris act at the time she shot at him. Because there can be no liability for assault unless the plaintiff is aware of the defendant's conduct at the time the conduct occurs. Choices (A) and (B) are therefore incorrect, because the fact that Doris acted with the requisite intent cannot create liability without the reasonable apprehension of the plaintiff at the time of the act. Choice (C) is not the best answer, because Doris could not claim she was acting in defense of Phil since she saw Dunbar walk away after hitting Phil. A defendant can act in defense of another when the other person is threatened with immediate harm. Since Phil was walking away, he was no longer posing a threat to Phil. Review UT Section 1.03 [B][2] Apprehension.

Paul was invited to attend a party hosted by Serena. Unknown to Paul, Serena had also invited Dylan. Dylan and Paul were enemies who had vowed to kill each other on sight. Paul arrived at Serena's party first and was standing in the kitchen when he saw Dylan enter the front door. Paul went out the back door to retrieve his pistol from the car, intending to come back into the party and shoot Dylan. Paul brought the pistol into the house and attempted to move close enough to Dylan to fire a shot at her while Dylan could see who was shooting her. Before Paul could pull the trigger, a police officer grabbed Paul, quietly disarmed him and removed Paul from the party. An inspection of the pistol at the police station determined that it was not loaded. The following day, Dylan called to thank Serena for inviting her to the party. Dylan then learned for the first time that Paul had attended the party and had been disarmed while trying to get into position to shoot Dylan. Shocked at how close she came to death, Dylan suffered a heart attack and was rushed to the hospital. If Dylan brings an action for assault against Paul, Dylan will

not recover, because Paul had failed to use a loaded weapon. Because there can be no liability for assault unless the plaintiff is aware of the defendant's conduct at the time the conduct occurs. Note also that it is irrelevant that the defendant lacks the actual ability to carry out the threat (e.g., the gun was unloaded) so long as the plaintiff reasonably believes that he or she is about to experience an immediate harmful or offensive touching. Review UT Section 1.03 [B][2] Apprehension

Dribble loved to play basketball. He would often wait around the basketball court near his home for hours, hoping to get involved in a game with other visitors to the court. One day, Dribble was asked to play basketball with three other boys his same age. He gladly accepted, and the four played for hours. However, the more the four boys played, the more physical the contact became under the basket as each boy pushed and shoved the others to gain the best position. The boys finally agreed that they would play one more game and then quit for the day. Dribble was determined that he and his teammate would prevail in the final game. The game was a close, hard-fought battle, and the two teams were tied with the next team to sink a basket winning the game. Dribble's teammate shot the basketball but missed. Dribble was determined that he would get the rebound on the missed shot but Potter, who played for the opposing team, had superior position under the basket. As the ball was falling off of the rim of the basket, Dribble elbowed Potter in the back, causing Potter to fall on the pavement and severely scrape his knee and elbow. Dribble got the rebound and made a basket, winning the game for his team. If Potter brings an action against Dribble for battery, Potter will

not recover, unless Dribble intentionally tried to push Potter using force in excess of that which Potter and the other players consented to by participating in the game. Consent is a defense to an intentional tort. As a general rule, a participant in a contact sport or activity (football, basketball, rugby, etc.) will be deemed to have consented to the level of physical contact which would normally be expected from that sport or activity. As a participant in the basketball game, Potter would be deemed to have consented to some normal level of physical contact. However, if the contact Potter experienced when pushed by Dribble exceeds the scope of consented to contact, he may recover from Dribble for battery. Review UT Section 2.01 [D][2] Action Beyond Scope of Content.

Plastered was traveling on a commercial airline trip from Boston to Chicago. During the course of the trip, Plastered became intoxicated after drinking several alcoholic beverages served to him by the flight attendants at his request. When the pilot asked all the passengers to "raise their tray tables and fasten their seat belts" because of unexpected turbulence, Plastered became belligerent and refused to follow the pilot's instructions -- even after several warnings from the flight attendants that Plastered was required to follow all pilot safety instructions according to Federal Aviation Administration rules. When the plane landed, Plastered again refused to raise his tray table or fasten his seat belt. Once the plane was on the ground, the Pilot (one of the two pilots on duty on the plane) asked all the passengers to remain seated until one of the passengers was escorted off the plane. Pilot went to where Plastered was sitting and told Plastered to get up and walk off the plane to meet a police officer standing just inside the airport terminal. Plastered refused. Pilot grabbed Plastered and shoved him up the aisle of the plane toward the exit door. Plastered fell and injured his leg. After receiving proper medical treatment, Plastered brought suit against Pilot seeking damages for his injuries. In this action Plastered will

not recover, unless Pilot used excessive force in ejecting Plastered from the plane. A pilot will generally not be liable to a passenger for any intentional tort (e.g., battery) because, as the pilot of the plane, the pilot has the proper authority to exercise reasonable force to maintain discipline and safety on the plane. This would include ejecting passengers who wrongfully refuse to leave the plane. However, if Pilot used unreasonable force, he would be liable to Plastered for injuries caused by the excessive use of force. Review CB pages 87-88, E. Discipline (7th Edition).

D was driving home when a violent thunderstorm began. D considered pulling over and waiting for the storm to pass, but since he was only one-half mile from home, D decided to continue driving. Just as D turned onto his street, a bolt of lightening struck a tree causing it to fall in front of D's car. In order to miss hitting the tree, D swerved and ran his car up onto P's yard. In so doing, D's car destroyed several of P's prize-winning rose bushes. If P sues D for the damage caused to P's rose bushes, P will

recover, D entered the land of P for his own private benefit even though it was necessary to avoid a greater evil. Because one who enters the land of another is liable for trespass. Necessity is an excuse to trespass liability, but may or may not provide an excuse for duty to pay for any damage caused by the entry. If the entry was privileged because of private necessity, the entrant must still pay for any damages caused. If, however, the entry was privileged due to public necessity, both the entry and duty to pay for damages caused are both excused. Here, D entered under private necessity (because he was protecting only himself from harm rather than the community at large) and thus he will be required to pay for the rose bushes he destroyed. If you missed this question, please review UT Section 2.05 [B] Private Necessity.

While observing a television broadcast one evening in his living room, Civic watched intently as the picture of an escaped prisoner was displayed. The prisoner was described as armed and dangerous. The following day, Civic was at the shopping mall when he spotted a man, Felon, who matched the description of the escaped prisoner. Civic casually walked near Felon to get a closer look. When Felon saw Civic approach, he turned and walked quickly toward the shopping mall exit to the parking lot. Civic ran after Felon and reached into his jacket and pulled out a gun and yelled at Felon to "stop. . .or I'll shoot!" When Felon appeared to reach into his jacket and turn to face Civic, Civic shot at Felon. The bullet missed and struck Stewart, another shopper who was entering the mall through the same doorway that Felon was attempting to use to exit the mall. The police arrived and it was determined that Civic was mistaken because Felon was not an escaped felon and he was not armed -- although Felon did bear a strong resemblance to the escaped felon whose picture was broadcast on the television program Civic had seen the night before. If Felon brings an action for assault against Civic, he will

recover, if Felon reasonably suspected that he was about to be shot. Because the tort of assault requires that the defendant commit a voluntary act with the intent to cause the plaintiff to experience the reasonable apprehension of a harmful or offensive touching. Here, in order to recover for assault, Felon must prove that he observed Civic's threat and reasonably believed he was about to be shot. The fact that Civic attempted to shoot Felon is not enough absent facts showing that Felon heard or saw Civic's threat to shoot him. Review UT Section 1.03 [B][2] Apprehension

In the case of Summers v. Tice, 199 P.2d 1 (Cal. 1948) in the assigned reading for Module 10, the court held that

the burden of proof regarding causation is shifted to the defendants to prove that they were not the cause of plaintiff's injury. (UT Section 11.04[A])

If a defendant is not a professional in the area at issue, but does possess greater than average skill, knowledge, or ability in the area, the Restatement of Torts, Section 298, comment d provides that

the defendant is required to exercise the superior skill, ability or knowledge that he has in a manner reasonable under the circumstances. (pages 55-56 of UT)

In Stewart v. Motts, 654 A.2d 535 (Pa. 1995), the court applied the general standard of care for negligence cases, which is best described as

the standard of care that would be exercised by a reasonable person under the same or similar circumstances. (pages 110-112 of CB)

A plaintiff may show the intent element of a claim of intentional infliction of emotional distress by proving the defendant engaged in

ther intentional or reckless conduct. (pages 581-582 of CB)