Torts

Question 1

When will a court hold a child or mentally incompetent person labile for an intentional tort?

Answer 1

A majority of courts hold that children and those who are mentally incompetent can be held liable for intentional torts if they act with the requisite mental state.

Question 2

When may a defendant be liable to a third-party victim for IIED

Answer 2

A defendant who causes harm to an individual may be liable when:
-Their intentional or reckless conduct also causes severe emotional distress to a close family member of the individual who contemporaneously perceives the defendant’s extreme and outrageous conduct; or
-The defendant’s design or purpose was to cause severe distress to the third-party victim.

Question 3

When is deadly force justified in self-defense?

Answer 3

A defendant may use deadly force only if the defendant reasonably believes that:
-The plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force upon the defendant;
-The defendant is thereby put in peril of death, serious bodily harm, or rape by the use or threat of physical force or restraint; and
-The defendant can safely prevent the peril only by the immediate use of deadly force.

Question 4

What is the firefighter’s rule?

Answer 4

An emergency professional is barred from recovering damages from the party whose negligence cause the professional’s injury if the injury resulted from a risk inherent in the job.

Question 5

What are the elements of assault?

Answer 5

-Plaintiff’s reasonable apprehension;
-Of an imminent harmful or offensive bodily contact;
-Caused by the defendant’s action or threat;
-With the intent to cause either the apprehension of such contact or the contact itself.

Question 6

Are words sufficient to establish a prima facie case for assault?

Answer 6

For assault, words alone are insufficient unless coupled with conduct or the plaintiff reasonably anticipates that a harmful or offensive contact is imminent.

Question 7

What is the definition of a public nuisance?

Answer 7

A public nuisance is an unreasonable interference with a right common to the general public.
-A private citizen has a claim for public nuisance only if that citizen suffers harm that is different in kind from that suffered by members of the general public.

Question 8

What is the effect of a plaintiff’s negligence on a strict products liability action?

Answer 8

Comparative fault jurisdiction: The plaintiff’s own negligence reduces their recovery in a strict products liability action in the same manner as in a negligence action.
-In this jurisdiction, a plaintiff’s conduct that amounts to an assumption of the risk is treated as comparative negligence in order to reduce but not eliminate recovery.

Exception: In some comparative fault jurisdictions, the plaintiff’s recovery in strict products liability is not reduced by the percentage that the plaintiff’s fault contributed to causing their injury.

Question 9

What are the elements of IIED?

Answer 9

-The defendant’s intentional or reckless;
-Extreme and outrageous conduct;
-That causes;
-The plaintiff severe emotional distress.

Question 10

When is use of force in defending others justified?

Answer 10

One may defend another with force when they reasonably believe that the person has a privilege of self-defense against the plaintiff and the defendant’s intervention is immediately necessary for their protection.
-The third person need not be related to the defendant but may instead be a stranger.

Question 11

What is the “merchant’s privilege?”

Answer 11

1. A merchant is privileged to use force against another for the purpose of (i) investigating, (ii) recapturing, or (iii) facilitating an arrest.
2. To be entitled to this privilege, the merchant must reasonably believe that the other has wrongfully (i) taken/is attempting to take merchandise, or (ii) failed to pay.
3. Additionally, the merchant’s use of force against the other must be (i) on or near the premises, (ii) reasonable, and (iii) for a reasonable time.

Question 12

How is express consent, as a defense to intentional torts, established?

Answer 12

The plaintiff expressly consents to the defendant’s otherwise tortious intentional conduct if the plaintiff is willing for that conduct to occur.
-Such willingness may be express or inferred from the facts.
-Actual consent extends to conduct by the defendant that is not substantially different in nature from the conduct that the plaintiff is willing to permit.
*When a plaintiff places a limiting condition on their actual consent, the consent is legally effective only within the limits of that condition.

Question 13

When will a defendant’s actions be considered intentional?

Answer 13

A defendant acts intentionally if:
-They act with the purpose of causing the consequences of their act; or
-They act knowing that the consequences are substantially certain to result.

Question 14

Define trespass to chattel.

Answer 14

The defendant intentionally interferes with the plaintiff’s right of possession by either:
-Dispossessing the plaintiff of the chattel; or
-Using or intermeddling with the plaintiff’s chattel.
*Trespass to chattel requires that the plaintiff show actual harm to or deprivation of the use of the chattel for a substantial time.

Question 15

Define conversion.

Answer 15

A defendant intentionally commits an act depriving the plaintiff of possession of their chattel or interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff of the use of the chattel.
-The plaintiff may recover damages in the amount of the full value of the converted property at the time of the conversion or may bring an action for replevin to recover the chattel.

Question 16

What are the elements of intentional misrepresentation?

Answer 16

The elements are:
-The defendant made a misrepresentation of a material fact, opinion, intention, or law or failed to disclose a material fact when under an affirmative duty to do so;
-Scienter: The defendant must have known the representation to be false or must have acted with reckless disregard as to its truthfulness;
-The defendant must have intended to induce the plaintiff to act (or refrain from acting) in reliance on the misrepresentation;
-The plaintiff’s reliance must have been justifiable; and
-The plaintiff must prove actual damages.

Question 17

Define trespass to land.

Answer 17

A defendant’s intentional act causes a physical invasion to the land of another.
-The defendant need only have the intent to enter the land or to cause a physical invasion.

Question 18

Generally, when may a defendant act in self-defense and how much force may the defendant use?

Answer 18

A defendant has a privilege to use force against a plaintiff for the purpose of defending themselves against the plaintiff’s unprivileged use of force if the defendant reasonably believes that the force is both necessary and proportionate to the force that the plaintiff is intentionally inflicting or about to inflict.
-The use of force must be fore a defensive purpose.

The force used by a defendant should not be significantly greater than the force used by the plaintiff.
*Mistake is a defense so long as it is a reasonable mistake.

Question 19

What is the doctrine of “transferred intent?”

Answer 19

Transferred intent exists when a person intends to commit an intentional tort against one person but instead commits the intended tort against a different person.

Question 20

What conduct is considered extreme and outrageous for the purpose of IIED?

Answer 20

When it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society.
-The character of the conduct must be outrageous and the conduct must be sufficiently unusual to be extreme.

Question 21

What is the last clear chance doctrine?

Answer 21

Contributory negligence jurisdictions - The plaintiff may mitigate the legal consequences of their own contributory negligence if they prove that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so.

Comparative fault jurisdictions - The doctrine has mostly been abolished.

Question 22

Define private nuisance and how a defendant’s compliance with governmental regulation affects a private nuisance action.

Answer 22

A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual’s use and enjoyment of their land.

Statutory and regulatory compliance is not a complete defense but may be admitted as evidence as to whether the interference with the plaintiff’s use and enjoyment of their land is unreasonable.

Question 23

What is a “good Samaritan” statute?

Answer 23

Protects doctors and other medical personnel when they voluntarily render emergency care by exempting medical professionals from liability for ordinary negligence but not for gross negligence.

Question 24

What effect does evidence of custom have on the standard of care in a negligence action?

Answer 24

Evidence of a custom in a community or industry is admissible as evidence to establish the proper standard of care, but such evidence is not conclusive.

Question 25

What defenses are available in a defamation action?

Answer 25

1. Truth is a complete defense;
2. Consent is a defense, provided the scope of the consent has not been exceeded.
3. Absolute privilege exists for statements made:
   -In the course of judicial proceedings by the participants to the proceeding or legislative proceedings by witnesses to the proceedings;
   -Between spouses concerning a third person; and
   -As required, publications by radio, television, or newspaper;
4. Qualified privilege exists for statements:
   -Made in the interest of the defendant;
   -Made in the interest of the recipient of the statement or third-party; and
   -Affecting an important public interest.

Question 26

In negligence actions, what standard of care applies to a professional?

Answer 26

A professional is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community.
-A specialist may be held to a higher standard than a general practitioner because of their superior knowledge.
-Establishing negligence by a professional generally requires expert testimony to establish both the applicable standard of care and the defendant’s deviation from that standard.

Question 27

What elements must be established for violation of a statute to constitute negligence per se?

Answer 27

1. A criminal or regulatory statute imposes a specific duty for protection of others;
2. The defendant neglects to perform the duty;
3. The defendant is liable to anyone in the class of people intended to be protected by statute; and
4. The harm is of the type the statute was intended to protect against.

Minority jurisdictions: Violation of the statute is merely evidence of negligence.

Question 28

What test is applied by most courts when the conduct of 2 or more defendants may have contributed to a plaintiff’s indivisible injury?

Answer 28

Substantial-Factor Test - In cases in which the conduct of 2 or more defendants may have contributed to a plaintiff’s indivisible injury, each of which alone would have been a factual cause of that injury, the test applied by most courts is whether the defendant’s tortious conduct was a substantial factor in causing the plaintiff’s harm.

Minority rule and third restatement - Each such cause or act is regarded as a factual cause of the harm and together are designated as multiple sufficient causes.

Question 29

When does an intervening event cut off a defendant’s liability?

Answer 29

An intervening event that breaks the chain of proximate causation between the defendant’s tortious act and the plaintiff’s harm is a superseding cause.
-An unforeseeable intervening event is generally treated as a superseding cause, while a foreseeable intervening event generally is not.

Question 30

What is the most important thing a plaintiff must prove to be awarded damages in a negligence action?

Answer 30

A plaintiff must prove actual physical harm to be entitled to damages for negligence.
*Nominal damages are not available.

Question 31

What are the elements of battery?

Answer 31

1. The defendant intends to cause a contact with the plaintiff;
2. Their affirmative conduct causes such a contract; and
3. The contact causes bodily harm or is offensive to the plaintiff.

Question 32

What is the doctrine of joint and several liability?

Answer 32

Under the doctrine, each of 2 or more tortfeasors who are found liable for a single indivisible harm to the plaintiff are subject to liability to the plaintiff for the entire harm.
-The plaintiff has the choice of collecting the entire judgment from 1 defendant, the entire judgment from the other defendant, or portions of the judgment from various defendants, as long as the plaintiff’s entire recovery does not exceed the amount of the judgement.

MBE Default

Question 33

Who may be a defendant in a strict products liability action?

Answer 33

A defendant must be in the business of selling or otherwise distributing products of the type that harmed the plaintiff, which includes the manufacturer of the product, its distributor, and its retail seller.
-If the seller is a commercial supplier of the product, the seller is subject to strict liability for a defective product even if the revenue from sales of the product are not a significant portion of its business.
-The seller is generally strictly liable even if the seller was not responsible for the defect in any way and even when the product is not purchased directly from the seller.

Question 34

Define the traditional rule of contributory negligence.

Answer 34

The plaintiff’s contributory negligence is a complete bar to recovery, regardless of the percentage that the plaintiff’s own negligence contributed to the harm.

Question 35

Define the imminence requirement for assault.

Answer 35

The threatened bodily harm or offensive contact must be imminent, without significant delay.

Threat of future harms are insufficient, as are threats made by a defendant too far away to inflict any harm, except in some circumstances.

Question 36

Define 2 major forms of comparative negligence.

Answer 36

Pure comparative negligence - The plaintiff’s full damages are calculated by the trier of fact and then reduced by the proportion that the plaintiff’s fault bears to the total harm.
Partial (modified) comparative negligence - If a plaintiff is less at fault than a defendant, then their recovery is reduced by their percentage of fault, but if a plaintiff is more at fault then a defendant their recovery is barred.
-In the vast majority of modified comparative fault jurisdictions, if a plaintiff and defendant are found to be equally at fault, the plaintiff recovers 50% of their total damages.

Question 37

In negligence actions, what standard of care is imposed upon a child?

Answer 37

That of a reasonable child of a similar age, intelligence, and experience.

Exception: A child engaged in a high-risk activity that is characteristically undertaken by adults are held to the same standard as an adult.

Question 38

What is the effect of an exculpatory clause in a contract under which a defendant disclaims liability for negligence and in what situations is it not enforceable?

Answer 38

An exculpatory clause in a contract can constitute an express assumption of the risk by a plaintiff and which operates as an affirmative defense to a negligence action.
-Many courts now hold that disclaimers of liability by contract negate the fact that the defendant owes a duty of care to the plaintiff in the first place, causing the plaintiff’s prima facie case to fail rather than operating as an affirmative defense.

Courts will not enforce exculpatory provisions:
-Disclaiming liability for reckless or wanton misconduct or gross negligence;
-When there is a gross disparity of bargaining power between the parties;
-When the parties seeking to apply the exculpatory provision offers services of great importance to the public that are a practical necessity for some members of the public such as medical services;
-If the exculpatory clause is subject to typical contractual defenses such as fraud or duress; or
-When it is against public policy to enforce agreements that insulate people from the consequences of their own negligence.

Question 39

In negligence actions, what is the general standard of care?

Answer 39

That of a reasonably prudent person under the circumstances.
-The standard is an objective one.
-Under this standard, a defendant is presumed to have average mental abilities and the same knowledge as an average member of the community, but a defendant’s particular physical characteristics are taken into account.
-If a defendant possesses special skills or knowledge, they must exercise their superior competence with reasonable attention and care.

Question 40

When has a plaintiff impliedly assumed a risk and what is the affect of that assumption?

Answer 40

Generally, a plaintiff must voluntarily encounter a known, specific risk in order to have impliedly assumed that risk.
-Most courts hold that voluntary encounters must also be unreasonable.

Comparative fault jurisdiction - This form of assumption of the risk has been merged into the comparative fault analysis and merely reduces recovery.
Contributory negligence jurisdiction - In the minority, this form of assumption of the risk remains a total bar to recovery.

Question 41

What are the elements for intentional interference with a contract?

Answer 41

To establish a prima facie case for intentional interference with a contract, a plaintiff must prove:
1. A valid contract existed between the plaintiff and a third party;
2. The defendant knew of the contractual relationship;
3. The defendant intentionally interfered with the contract, causing a breach; and
4. The breach caused damage to the plaintiff.

Question 42

What is the distinction between libel and slander and what affect does the classification of defamation as one or the other have on damages?

Answer 42

Libel - Defamation by words, written, printed, or otherwise recorded in permanent form.
-Generally, and subject to constitutional restraints, presumed damages may be awarded for libel.

Slander - Defamation by spoke word, gesture, or any form other than libel.
-Slander requires proof of special damages unless it constitutes slander per se.

Question 43

When is the owner of a domestic animal strictly liable for harm done by the animal?

Answer 43

A domestic animal’s owner is strictly liable for injuries caused by that animal if they know or have reason to know of the animal’s dangerous propensities and the harm results from those dangerous propensities.

Question 44

When is a product deflective?

Answer 44

A product is defective when, at the time of the sale or distribution, it contains a:
Manufacturing defect:
- A deviation from what the manufacturer intended the product to be that causes harm to the plaintiff.
-The test is whether the product conforms to the defendant’s product specifications.

Design Defects:
-A defect in the design of the product as determined under the consumer expectation test and/or (Unreasonably dangerous beyond the expectations of an ordinary user).
-The risk-utility test (A reasonable alternative design that was economically feasible was available to the defendant and the failure to use that design rendered the product not reasonably safe.)

Failure to Warn Defect:
-There is a foreseeable risk of harm, not obvious to an ordinary user of the product, which risk could have been reduced or avoided by providing reasonable instructions or warnings, rendering the product not reasonably safe.

Question 45

To which 3 torts does the doctrine of transferred intent generally apply?

Answer 45

1. Battery;
2. Assault;
3. False imprisonment.

Question 46

What is the learned intermediary rule regarding prescription drugs and medical devices in the context of strict products liability?

Answer 46

The manufacture of a prescription drug or medical device typically satisfies its duty to warn the consumer by informing the prescribing physician, rather than the patient, of problems with the drug or device.

Question 47

What is the majority rule for proximate cause?

Answer 47

A defendant is liable for reasonably foreseeable consequences resulting from their conduct.
- The type of harm must be foreseeable, although the extent of harm does not need to be foreseeable.
-A defendant’s liability is limited to those harms that result from the risks that made the defendant’s conduct tortious within the scope of liability of the defendant’s conduct.

Question 48

What type of damages are permitted for strict liability claims?

Answer 48

Only personal injury or property damage.
-A claim for purely economic loss must be brought as a breach of warranty action.

Question 49

What are the 4 invasions of privacy torts?

Answer 49

1. Misappropriation of the right to publicity;
2. Intrusion upon seclusion;
3. Placing the plaintiff in a false light; and
4. Public disclosure of private facts.

Question 50

When is a defendant strictly liable for an abnormally dangerous activity?

Answer 50

A defendant is strictly liable when:
1. The defendant’s abnormally dangerous activity causes physical harm; and
2. That harm results from the hazards that make the activity abnormally dangerous.

Question 51

Define superseding cause.

Answer 51

A superseding cause is an unforeseeable act or force that:
1. Occurred after the defendant’s negligence; and
2. Contributed to the plaintiff’s harm.

Question 52

Under what circumstances are criminal acts of a third party not a superseding cause?

Answer 52

Criminal acts of third parties are not superseding causes if a defendant had reason to know that their conduct would increase the risk that such acts would occur.

Question 53

What is the traditional rule of landowner liability to licensees?

Answer 53

Landowners owe licensees a duty to warn licensees about latent dangers of which the land possessor is, or should be, aware.

Question 54

What are the elements of a private nuisance action?

Answer 54

Liability for private nuisance arises when a defendant’s interference with a plaintiff’s use and enjoyment of their property is both:
-Substantial: Offensive, annoying, or intolerable to a normal person in the community; and
-Unreasonable: Effectively renders the land unavailable for ordinary use or enjoyment by the possessor.

*An interference is not substantial if the plaintiff’s abnormal sensitivity causes them to find the interference offensive, annoying, or intolerable when a normal person in the community would not.

Question 55

When can a mechanical device be used to defend property?

Answer 55

A mechanical device can be used to defend property when the device is:
-Reasonably necessary to protect property from intrusion;
-Reasonably proportionate to value of interest being protected;
-Customarily used for this purpose or reasonable care is taken to make its use known; and
-Not intended or likely to cause death or serious bodily harm

*Use of a mechanical device that inflicts deadly force may be privileged if it satisfies the requirements for using deadly force in self-defense or defense of others.

Question 56

When is a defendant allowed to use deadly force in self-defense?

Answer 56

A defendant can use deadly force in self-defense if they reasonably believe that :
-An individual is intentionally inflicting or about to intentionally inflict unprivileged force upon the defendant;
-The defendant is put in peril of death, serious bodily harm, or rape by the use of threat of physical force; and
-The defendant can safely prevent the peril only by the immediate use of deadly force.

Question 57

What are the 2 standards of proof of actual causation in wrongful death claims based on medical malpractice?

Answer 57

1. Traditional common law rule: The decedent probably would have survived but for the defendant’s malpractice
   -Greater than 50% chance.
2. Modern rule (Loss-of-chance doctrine): The decedent’s chance of survival was reduced by the defendant’s malpractice.

Question 58

What standard of care are professionals held to?

Answer 58

Traditional: A professional breaches their duty to their clients when they fail to exercise the same knowledge, skill & care as other professionals in a similar community.
-Specialists are held to a national standard.

Modern: All physicians are held to a national standard of care.

Question 59

What are the elements of tortious interference with a contract?

Answer 59

A plaintiff must prove:
-A valid contract existed between the plaintiff and a third party.
-The defendant intentionally and improperly interfered with the contract’s performance.
-The interference caused the plaintiff pecuniary (monetary loss).

*The contract cannot be between the plaintiff and the defendant.

Question 60

When is there an affirmative duty to act?

Answer 60

-Assumption of duty
-Creation of risk
-By contract
-By authority
-By relationship
-By statute
-Land possessor

Question 61

When may a principal be vicariously liable for a tort committed by an independent contractor?

Answer 61

When the independent contractor’s work involves a nondelegable duty.
-Abnormally dangerous activities cause a principal to retain a duty even when assigning it to an independent contractor.

Question 62

What is the doctrine of private necessity?

Answer 62

Under the doctrine of private necessity, a trespass to land is privileged when the intrusion is, or reasonably appears to be, necessary to protect oneself, third parties, or property from serious harm.

*A landowner cannot stop a privileged trespass and is liable to the trespasser for damages resulting from any attempt to do so.

Question 63

What is the attractive nuisance doctrine?

Answer 63

Under the attractive nuisance doctrine, land possessors have a duty to exercise reasonable care to protect child trespassers from artificial conditions on their land when:
-The condition is located where the land possessor knows or should know that children are likely to trespass;
-The land possessor knows or should know that the condition poses an unreasonable risk of serious bodily harm or death to children;
-Children of the trespasser’s age cannot reasonably discover or appreciate the risk; and
-The risk outweighs the condition’s utility and the burden of eliminating the risk.

Question 64

What are the elements of IIED against a public figure?

Answer 64

The public figure must show the standard elements for IIED:
-The defendant acted intentionally or recklessly;
-The defendant engaged in extreme and outrageous conduct; and
-The plaintiff suffered severe emotional distress

PLUS

The publication requirement:
-The defendant published a false statement of fact with actual malice.

Question 65

What is the doctrine of Intra-family liability?

Answer 65

The doctrine:
-Immunizes close family members from tort liability to each other; and
-Imputes negligence of close family members to each other.

*This is a common law doctrine that has been abandoned by most jurisdictions.

Question 66

Under what circumstances is a private citizen privileged to confine or arrest a plaintiff?

Answer 66

Majority:
A private citizen is privileged to confine or arrest a plaintiff when:
1. A felony has been committed; and
2. The defendant reasonably suspects the plaintiff committed the felony.

3rd Restatement:
A private citizen is privileged to arrest a plaintiff when:
1. The plaintiff actually committed the felony for which the defendant is arresting them; and
2. The defendant reasonably believed that law enforcement would likely be unable to apprehend the plaintiff unless the defendant immediately confined them.

Question 67

Generally, obligations associated with real property are generally owed by whoever occupies and controls the land. Under what conditions does a seller remain liable for negligence to persons off the land for physical harm caused by an artificial condition on the land?

Answer 67

A seller remains liable for negligence to persons off the land for physical harm caused by an artificial condition on the land that:
1. Existed at the time of the sale; and
2. The seller knew, or should have known, existed and posed an unreasonable risk of harm to such persons.

*The liability continues at least until the buyer has had a reasonable opportunity to discover and remedy the condition.

Question 68

What damages can a plaintiff recover in a negligence action?

Answer 68

Only compensatory damages can be recovered in a negligence action.
-Not nominal or punitive damages.

Question 69

Under what torts can nominal or punitive damages be recovered?

Answer 69

Only torts involving intentional or reckless conduct.

Question 70

Define the rescue doctrine.

Answer 70

Under the rescue doctrine, a plaintiff-rescuer can establish a prima facie negligence case by providing that:
1. They were injured while attempting to rescue another; and
2. That person’s peril was caused by the defendant’s failure to use reasonable care.