Last Minute Memorize!

Question 1

Intentional Torts

Answer 1

Battery 
Assault 
False Imprisonment 
Intentional Infliction of Emotional Distress 
Trespass to Land 
Trespass to chattels
Conversion

Question 2

Affirmative Defenses to Intentional Torts

Answer 2

Consent
Self-defense
defense of property
necessity

Question 3

Elements of Negligence

Answer 3

Duty of Care
Breach of Duty
Actual and Proximate Causation
Damages

Question 4

Special Standards of Care

Answer 4

1. Persons with a major physical disability
2. Children
3. Professional
4. Owners and occupiers of land
5. Standard of care established by statute

Question 5

Affirmative Defenses to Negligence

Answer 5

1. Contributory Negligence
2. Comparative Negligence
3. Assumption of Risk

Question 6

Strict Liability Actions

Answer 6

Abnormally Dangerous Activities
Animals
Sale of Unreasonably Dangerous Defective Product

Question 7

Intentional Tort

Battery

Answer 7

Act intended to cause harmful/offensive contact with person of another and which causes such contact

harmful contact = painful contact

offensive contact = objectionable to a reasonable person

person of another = something intimately connected to plaintiff

no damages required

Question 8

Transferred Intent

Answer 8

You can transfer defendant’s intent from tort to tort

You can transfer defendant’s intent from person to person

You can transfer defendant’s intent from person to person AND tort to tort

***almost always arise when battery and assault fact patterns show up on the MBE

Question 9

Intentional Tort

Assault

Answer 9

Act intended to cause apprehension of immediate harmful/offensive bodily contact and causes reasonable apprehension of such contact

reasonable apprehension = must create awareness of harmful/offensive contact in reasonable person

immediate contact = no significant delay (imminent)

transferred intent applies

no damages required

Question 10

Intentional Tort

False Imprisonment

Answer 10

Act without privilege intended to involuntarily confine a victim to a bounded area and that results in such confinement

confinement = plaintiff must be aware of it or suffer injury

bounded area = freedom of movement is limited in all directions (no reasonable means of escape)

no damages required

transferred intent applies

Question 11

Intentional Infliction of Emotional Distress

Answer 11

Extreme and outrageous conduct committed intentionally/recklessly that causes severe emotional distress

Outrageous conduct = beyond all bounds of decency

reckless conduct is sufficient to prove

transferred intent does NOT apply

damages (severe emotional distress) required

Question 12

Intentional Tort

Trespass to Land

Answer 12

Act done with intent to enter the land and results in the invasion of the land of another

Intent to enter someone else’s land is not required

physical invasion = any invasion of land by a person or object is sufficient

land = surface above, space above and ground beneath the land

damages not required

transferred intent applies

***trespass to land claim still applies where defendant made an innocent mistake as to who owned the land

Question 13

Trespass to Chattels

Answer 13

Act done with the intent to have contact with a chattel that results in interference with the personal property of another, causing damage

intent to have contact with someone else’s chattel not required

damage can be either physical damage to the property or loss of use of the property

if the interference is serious, consider conversion

Question 14

Conversion

Answer 14

Act done with the intent to have contact with a chattel that results in substantial interference with the personal property of another, causing substantial damage

intent to have contact with someone else’s chattel not required

substantial damage – property is lost, stolen, destroyed, or heavily damages

damage can be either physical damage or loss of use of the property

remedy is a forced sale of the property–defendant pays the fair market value of the property at the time of the conversion and keeps the property

Question 15

Difference between trespass to chattel and conversion

Answer 15

If damage to chattel is small then plaintiff MUST sue for trespass to chattel

If damage to chattel is substantial, plaintiff has a CHOICE of claim:

trespass to chattel–keep the chattel and get damages from defendant

conversion–lose the property but get compensated for fair market value at the time of conversion

Question 16

Affirmative Defenses to Intentional Torts–Consent

Answer 16

A valid consent by a plaintiff with capacity to consent is a complete defense to an intentional tort

express consent is easy and not as likely to be tested

implied consent is based on what a reasonable person would infer from the plaintiff’s conduct

the defendant’s conduct cannot exceed the scope of what the plaintiff consented to

consent is invalid if the plaintiff 1) lacks capacity 2) gave consent because of fraud or 3) gave consent because of coercion

***common test question: the issue of invalid consent with a fact pattern where consent was obtained by fraud

Question 17

Affirmative Defenses to Intentional Torts–Self-defense

Answer 17

A defendant who reasonable believes she is under an unlawful attack can use a reasonable amount of force to defend herself

the defendant’s belief that she is under attack must be reasonable

the defendant must use only the amount of force reasonably necessary to repel the attack but this may include deadly force

Question 18

Retreat Rule (Self-Defense)

Answer 18

A person must retreat, if he can do so safely, before using deadly force in self-defense

A person is not required to retreat from her own home

Question 19

Affirmative Defenses to Intentional Torts–Defense of Property

Answer 19

The defendant may use reasonable nondeadly force to defend her land or personal property

deadly force may never be used to protect property alone

deadly force is defined as force capable of causing death or serious bodily injury

Question 20

Deadly Force (Defense of Property/Self-Defense)

Answer 20

Force capable of causing death or serious physical injury

death is not required

deadly force cannot be used in defense of property alone, but it can be used in self-defense

if your home is broken into, you can use deadly force because you’re protecting yourself and family, not just your property

**context clues

look for question where security guard or store owner restraining suspected shoplifter who turns out to be innocent and she sues

security guard or store owner can assert defense of property to plaintiff’s claim if

1. store reasonable believed she was a shoplifter
2. store detained her in a reasonable manner
3. store detained her for a reasonable time

Question 21

Affirmative Defenses to Intentional Torts–Necessity

Answer 21

You have a defense to a property tort if you committed the tort to prevent a greater harm

This is a defense for trespass to land, trespass to chattels, or conversion

NOT a defense to a tort against a person (battery, assault, or false imprisonment)

Question 22

Public v. Private Necessity

Answer 22

Public necessity is action by defendant to prevent harm to the general public

private necessity is action by defendant to prevent harm to defendant or small group of people

public necessity is a complete defense to a property tort (we want to reward this kind of behavior) but private necessity is not (if you caused damages, you still need to pay up).

Question 23

How MBE will test negligence questions

Answer 23

1. The facts are so clear-cut that breach of duty is apparent to any reasonable person
2. The call of the question states the result and you have to pick the choice that best justifies it
3. The defendant moves for a directed verdict because the plaintiff has not established the prima facie case

Question 24

Defendant’s Motion for Directed Verdict

Answer 24

Where the plaintiff has presented some evidence of breach of duty, DENY the motion and send the case to the jury. No directed verdict.

REMEMBER

The COURT decides if the defendant owes a duty and what the standard of care is

The JURY decides if the defendant breached that duty.

Question 25

Elements of Negligence--Duty of Care

Answer 25

Court determine whether a duty is owed and what the duty is Defendant owes duty of care to all FORESEEABLE plaintiffs (Palsgraf) Forseeable plaintiff--court determines the plaintiff is in zone of forseeable danger from defendant's act ***9/10, the plaintiff in the question will be a foreseeable plaintiff

Question 26

Negligence Elements--Standards of Care

Answer 26

General Standard of Care--Reasonable care under the circumstances (the reasonable person standard) ***Even when there are extraordinary circumstances--ex. violent storm, no visibility, slippery roads, etc,--the correct standard of care is reasonable care under THOSE circumstances.

Question 27

Special Standards of Care--Person with a major physical disability

Answer 27

Required to exercise the degree of care that would be reasonable for a person with that disability ***When given a question where the defendant has a major disability, ask, "Would a reasonable defendant with that disability have acted the same?" Ex. blind people do not drive cars ***Remember*** There is no special standard of care for people with mental disabilities--they are held to a reasonable person standard of care

Question 28

Special Standards of Care--Children

Answer 28

Must exercise the care that is reasonable for a child of like age, education, intelligence, and experience exception: child is engaging in an adult activity such as driving a car ***You will see a teenager when the examiners are testing on the adult activity rule. You will see a younger child when the examiners are testing on the child standard of care

Question 29

Special Standards of Care--Professionals

Answer 29

Must exercise the knowledge and skill of an ordinary member of that profession in good standing ***Special Duty to Warn A medical professional has a duty to warn a patient of serious risks in ANY medical procedure

Question 30

Special Standards of Care--Owners and Occupiers of Land

Answer 30

For injuries caused by dangerous conditions on the landowner's property, different standards apply depending on whether the plaintiff is a ``` trespasser known trespasser child trespasser licensee invitee ``` ***Examiners will preface the question with "under the traditional liability rules for landowners" if they are testing on the special duty rules for owners and occupiers of land

Question 31

Special Standards of Care--Owners and Occupiers of Land Duty to Licensee

Answer 31

Landowner must warn of concealed, dangerous conditions known to the occupier ***On the MBE, licensee will usually be a social guest or a solicitor coming to your front door

Question 32

Special Standards of Care--Owners and Occupiers of Land Duty to Invitee

Answer 32

Landowner must warn of concealed, dangerous conditions that the occupier knows of or should know of ***On the MBE, customers in stores and their children are ALWAYS invitees even if they don't buy anything

Question 33

Duty to Inspect for Invitees

Answer 33

Owner/occupier has a duty to make reasonable inspections of the property to make sure that there are no concealed dangerous conditions

Question 34

Special Standards of Care--Standard of Care Established by Statute (negligence per se)

Answer 34

A statute may establish the standard of care, so that a violation of the statute will be a breach of the duty of care, as long as the plaintiff is within the class intended to be protected by the statute the statute is designed to prevent the type of harm that occurred

Question 35

Negligence per se Statute

Answer 35

If statute was not designed to protect against the specific harm or if the plaintiff is not within the class protected: 1. The statute does not replace the standard of care 2. The plaintiff may still be able to establish a breach of the general standard of care * Don't automatically conclude that the plaintiff will lose

Question 36

Elements of Negligence--Breach of Duty

Answer 36

Evidence of industry practice or custom. | Res Ipsa loquitur (helps plaintiff avoid directed verdict)

Question 37

Res Ipsa Loquitur

Answer 37

Any answer choice that says plaintiff wins the lawsuit or the defendant loses will always be wrong Pick the answer that denies the motion for directed verdict and sends the case to the jury

Question 38

Elements of Negligence--Cause in Fact

Answer 38

To determine is there is actual causation ask, "but for the defendant's conduct, would this accident have occurred"? If yes, then the defendant's breach is not an actual cause

Question 39

Elements of Negligence-- Proximate Causation

Answer 39

To prove proximate causation and hold the defendant responsible, there must be a reasonable relationship between defendant's act and the result is the limitation on liability apply the foreseeability test--proximate case will be established if the harm was foreseeably caused by the defendant's negligent act

Question 40

Elements of Negligence-- Damages

Answer 40

Eggshell Plaintiff Rule--if defendant is liable for some injury to plaintiff, defendant is liable for all the plaintiff's physical injury damages

Question 41

Affirmative Defenses to Negligence--Contributory Negligence

Answer 41

Any negligence on the part of the plaintiff that contributed to the harm is a complete defense

Question 42

Affirmative Defenses to Negligence--Comparative Negligence (Comparative Fault)

Answer 42

Jury compares the negligence of plaintiff and the negligence of plaintiff and the negligence of defendant and reduces plaintiff's damages by percentage of her fault.

Question 43

Modified v. Pure Comparative Negligence

Answer 43

Modified Comparative Negligence--A plaintiff cannot recover if she was over 50% at fault Pure Comparative Negligence--A plaintiff can recover damages reduced by her fault regardless of how negligent she was ***Only apply modified comparative negligence if the question specifically tells you that the jurisdiction has adopted the rule ***On the MBE ALWAYS apply pure comparative negligence unless the question tells you a different rule applies

Question 44

Strict Liability for Sale of a Defective Product

Answer 44

Only applies where: Defendant was a commercial supplier of the product (Commercial supplier is a seller or someone who leases the product like a manufacturer, wholesaler, and retailer) The product was in a defective unreasonably dangerous condition at the time defendant sold it in the stream of commerce (defective condition includes any defect in the design or assembly of product OR defect due to inadequate warnings about potential dangers and the defect must be unreasonably dangerous) The defective product caused plaintiff's injury --negligence of another supplier in stream of commerce does not cut off the defendant's liability ***Only commercial suppliers of defective products are subject to strict liability actions, a one-time seller of a product can only be sued in negligence***

Question 45

Defenses to Strict Products Liability Action

Answer 45

1. Plaintiff's failure to establish prima facie case 2. Assumption of risk where plaintiff knew of risk and voluntarily encountered it 3. Misuse of the product if the misuse was not reasonable foreseeable

Question 46

Non-defenses to Strict Products Liability Action

Answer 46

1. Plaintiff's ordinary contributory negligence (unless the jurisdiction applies its comparative negligence rules) 2. Exercise of reasonable care by defendant 3. Plaintiff's foreseeable misuse of the product 4. Plaintiff did not purchase the product from defendant (lack of privity)

Question 47

Vicarious Liability for Employee Torts

Answer 47

General Rule: Employer generally NOT liable for employee's intentional torts but exceptions are commonly tested like: The employee was acting to help the employer's business.

Question 48

Vicarious Liability for Independent Contractors

Answer 48

Principal generally not liable for torts of independent contractor--but exceptions commonly tested: Principal's duty is nondelegable as a matter of public policy ***Watch out for questions where the employer or principal is not vicariously liable but may be negligence in hiring or supervising the employee who caused the injury.

Question 49

Defamation

Answer 49

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.

Question 50

jointly and severally liable

Answer 50

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.

Question 51

False light publicity

Answer 51

o establish a prima facie case for invasion of privacy based on publication by defendant of facts placing plaintiff in a false light, the following elements must be proved: (i) publication of facts about plaintiff by defendant placing plaintiff in a false light in the public eye; and (ii) the "false light" must be something that would be highly offensive to a reasonable person under the circumstances.