MBE Flashcards
1
Q
Is compliance with government authority/ordinances a defense to private nuisance actions?
A
NO. Compliance with ordinances can be evidence of reasonableness but it is not determinative.
2
Q
When can you consent to defamation?
A
When you ask a person the reason why he decided that way. The person’s response, even if defamatory, you will have consented to.
3
Q
What duty does a physician have to a patient before surgery?
A
Duty to provide the patient with enough info about the surgery’s risks to enable the patient to make an informed consent.
4
Q
Who can bring a trespass action against a trespasser?
A
Only the person in POSSESSION can sue.
Ex: If there is a tenant and a landlord, only the tenant can sue for trespass.
5
Q
Trespass elements
A
- an act of physical invasion of the P’s real property by D
- intent on D’s part to bring about the physical invasion
- causation
6
Q
Property owner duty to invitees?
A
Duty to make reasonable inspections to discover and make safe any dangerous conditions.
7
Q
Property owner duty to those adjacent to the premises?
A
Duty to protect them from dangerous conditions.
8
Q
Private necessity
A
When the trespasser enters for his benefit or a third party’s benefit: liable for any damage causes
Ex: Swerve to hit a child and you hit a mailbox. No trespass but must pay damages.
9
Q
Necessity: when is it an absolute defense?
A
When the trespasser enters for the benefit of the PERSON OR PROPERTY of the landowner
Ex: Person sees a barn on fire. He cuts through barbed wire and puts the fire out with a hose. He does not have to pay for the damage caused to the fence b/c he entered to help the landowner.
10
Q
Wrongful death
A
Recovery is allowed only to the extent that the deceased would have been recovered in the action HAD the person lived
11
Q
Negligent beneficiary of of a wrongful death action: what happens
A
In most comparative negligence jurisdictions, the negligent beneficiary’s recovery would be reduced by his fault, reducing the overall recovery by the estate.
12
Q
Common law rule for car owners when others use your car
A
Common law rule is that a car owner is NOT liable for torts committed by another person driving the car.
13
Q
Family car rule
A
Imposes liability on a car owner for the tortious conduct of an immediate family member driving the car
14
Q
Public disclosure of private facts: elements
A
- PUBLICATION or public disclosure by D of private info about P
AND - the matter made public is such that its disclosure would be highly OFFENSIVE to a reasonable person
15
Q
When is the public disclosure of private facts privileged?
A
If the matter is one of legitimate public interest AS LONG as made without malice (knowledge of falsity or reckless disregard for the truth)
16
Q
Is consent a defense to the invasion of privacy torts? Is reasonable mistake as to consent?
A
Consent: yes it is a defense
Reasonable mistake as to consent: NOT a defense
17
Q
When does a physician breach his duty in proposing a course of treatment/surgery?
A
If an UNDISCLOSED RISK was serious enough that a reasonable person in the patient’s person would have withheld consent, the doctor has breached his duty.
18
Q
When is an owner of livestock strictly liable for the damage they cause?
A
When it was reasonably foreseeable.
19
Q
When is the owner of a domestic animal liable?
A
Animal had dangerous propensities
20
Q
Strict liability: defective design
A
Product was in a dangerous condition unreasonably dangerous to users
21
Q
What must P should to recover under a defective design strict liability theory?
A
There was a reasonable alternative design (economically feasible)
22
Q
What happens in a traditional contributory negligence jurisdiction if P is contributory negligent in a strict product liabilities case?
A
P’s ordinary contributory negligence in failing to discover or guard against the danger is NOT a defense.
23
Q
When would P’s contributory negligence bar recovery in a strict liability products case?
A
If P voluntarily and unreasonably encountered a KNOWN RISK
24
Q
What happens if D negligently put himself in harms way and a rescuer is hurt trying to save D?
A
Rescuer is a foreseeable plaintiff. D breached a duty by negligently placing himself in danger.
25
Products liability: effect of an intermediary's failure to discover a defect/danger
NOT a superseding cause. Manufacturer/processor will remain liable.
26
Commercial supplier: strict liability theory elements
1. an absolute duty owed by a commercial supplier
2. production or sale of a defective product
3. actual and proximate cause
4. damages
27
MBE: Who can be liable for intentional torts? What about in GA?
MBE: Everyone.
GA: 13 and under are statutorily immune
28
What does it mean for a tortfeasor to "intend"?
Intent the consequence if:
1. it was your purpose
2. substantially certain of the consequences
29
Two ways to transfer intent
1. intended victim to actual victim
| 2. intended tort to actual tort
30
Battery elements: tort
harmful or offensive contact
| with the person
31
Assault elements: tort
reasonable apprehension of
| an immediate battery (offensive contact)
32
Are words alone enough for assault?
NO. Must be coupled with some conduct.
33
False imprisonment: tort
sufficient act of restraint
| within a bounded area
34
False imprisonment: is awareness that you are confined required? How much time must you be confined?
Must be aware.
Length of confinement is IRRELEVANT for liability (could go to damages)
35
When will it not be a "bounded area?"
when there is a reasonable means of escape that the P is aware of
36
When will a shoplifting detention be okay?
1. reasonable amount of time
| 2. reasonable suspicion
37
Intentional infliction of emotional distress
1. conduct must be outrageous
2. intent or reckless
3. some physical manifestation of distress
38
Trespass elements: tort
1. an act of physical invasion
2. to land or real property
* no need to have knowledge
* mistake as to property line won't save you
39
Trespass to chattels
1. an act of physical invasion
| 2. to personal property
40
Conversion
1. an act of physical invasion
| 2. to personal property that seriously interferes with the person's right
41
Who cannot consent to an intentional tort?
1. children
2. mentally incompetent
3. people who are coerced to consent
4. consent obtained through fraud or mistake
42
Implied consent
Arises through custom and usage or through P's own conduct
Ex: Touch football
43
Self defense elements
Reasonable force to prevent what she REASONABLY believes to be an imminent threat of force against her
44
Defending others
To defend others you can use same amount of force as the person attacked could use.
*honest mistake okay
45
Defense of property
Reasonable force is okay
| *deadly force is generally never okay for protecting property ALONE
46
When is the necessity defense used in torts?
Intentional torts to PROPERTY only
47
Private necessity
A qualified privilege to protect a limited number of people.
Not guilty of trespass but must be for damages.
(landing in a wheat field example)
48
Public necessity
An absolute privilege to protect a lot of people.
Not guilty of trespass OR damages
(destruction of houses to stop wildfire)
49
Defamation (for speech NOT involving public concern)
1. defamatory statement
2. statement is OF and concerning P
3. statement published to 3rd party (spoken or written)
4. damage to reputation
50
Defamation elements: publication
Publication must be intentional or negligent and third party who it was published to must be capable of understanding the statement.
(ex: if someone overhears a private conversation, no defamation)
51
Who bears the burden of proving truth/falsity in common law defamation?
D bears the burden of proving truth of the statement he made.
52
What is written defamation called? What is spoken defamation called?
Written: libel (damages presumed)
Spoken: slander (must prove special damages) subject to exceptions for libel per se
53
When will damages be presumed b/c of libel per se?
1. statement is about P's business/trade
2. statement accuses P of serious crime
3. statement accuses P of loathsome disease
4. statement accuses P of unchastity
54
What are defenses to defamation at common law?
1. truth
2. absolute privilege (judicial proceedings, legislative, executive proceedings)
3. qualified privilege
55
Defamation: what if it is a matter of public concern?
1. defamatory statement
2. statement is OF and concerning P
3. statement published to 3rd party (spoken or written)
4. damage to reputation
5. P must prove statement was false
6. P must prove some level of fault
- public figure P: must prove malice
- private figure P: usually must prove negligence
*CLEAR AND CONVINCING
56
What constitutes malice for purposes of defamation?
You knew it was false or you recklessly disregarded whether it was true
57
What must all defamation involving matters of public concern prove to recover presumed or punitive damages?
Must prove actual malice
58
What are some examples of qualified privilege?
1. exercise of public duty
2. private duty
3. statements made in proof of speaker's own interest (ex: explaining why you didn't get the license)
4. comments of counsel
5. comments concerning PUBLIC FIGURES
59
Privacy invasion: appropriation
Using P's name or likeness for COMMERCIAL ADVANTAGE without permission
60
Privacy invasion: intrusion on seclusion
Interference with P's seclusion in a way that would be OBJECTIONABLE to a reasonable person.
Must be in a place with an expectation of privacy.
61
Privacy invasion: false light
1. publishing/disseminating info that is
| 2. INACCURATE and would be OBJECTIONABLE to the reasonable person
62
Privacy invasion: public disclosure of private facts
1. publishing/disseminating factually correct info that would
2. normally be CONFIDENTIAL
3. disclosure would be OBJECTIONABLE to a reasonable person
63
Exception to public disclosure of private facts
Newsworthy disclosures (matters of public concern)
64
Defenses to privacy invasions
1. consent
| 2. absolute and qualified privileges (ONLY false light and public disclosure)
65
Fraud or intentional misrepresentation: elements
1. Falsity
2. Knowledge of falsity
3. Inducement
4. Justifiable reliance
5. Damages
66
To induce, what type of statement must it be to be fraudulent?
Material statement
67
MBE: What is your reliance justified?
You can rely on an OPINION of someone who has SUPERIOR SKILL or KNOWLEDGE
68
Negligent Misrepresentation: elements
- unintentional misrepresentation
- usually in commercial transactions
- liability confined to P whose reliance was contemplated
69
Intentional Interference with business relations
An intentional action that causes a third party to breach an existing contract with the plaintiff
- liable if you make performance much more difficult or expensive
- liable if you interfere with a P's expectation of economic benefit
70
Defense to intentional interference with business relations
Privilege
71
What are the types of actions when someone wrongfully institutes litigation against you?
Criminal: malicious prosecution/arrest
Civil: abuse of process
72
Negligence: duty - to whom is it owed?
All people who are foreseeable victims of your FAILURE to take precautions
73
What Ps are always foreseeable?
1. rescuers
| 2. viable fetuses
74
Duty: what standard of care?
reasonably prudent person under the same or similar circumstances
*if D has superior skill or expertise, D must use if for P's benefit (will be considered in standard of care)
75
Duty standard for children
When child is performing a non-adult activity: child must exercise degree of care of a child of like age, intelligence, and experience would exercise
76
Duty standard for a professional (such as a doctor)
A professional is held to the standard of an ordinary member of the profession in good standing
77
Negligence per se
| *use when there is a statute providing criminal penalty (fine, jail, etc)
1. statute was designed to protect this this class of person
| 2. statute was designed to protect against this type of risk/harm
78
When will you be excused from negligence per se?
1. compliance with statute was more dangerous than violating the statute
2. compliance was impossible under the circumstances
79
Liability for animals that TRESPASS and CAUSE DAMAGE
Strict liability IF reasonably foreseeable (except pets)
80
Liability for animals that cause PERSONAL INJURY
Wild animals: strict liability
| Domestic animals: not strictly liable, liable if owner KNEW that particular animal had dangerous propensities
81
What if the person who is injured by your animal is a trespasser?
No strict liability.
Trespasser must show NEGLIGENCE on the part of the animal's owner (knew of trespasser and didn't warn)
Exception: If you use a vicious watchdog, you will be strictly liable.
82
What duty does a landowner owe a discovered trespasser?
Duty to warn of dangerous artificial conditions KNOWN to owner that trespasser is UNLIKELY to discover.
83
What duty does a landowner owe an undiscovered trespasser?
No duty
84
What duty does a landowner owe a licensee?
Duty to warn of dangerous artificial conditions KNOWN to owner that trespasser is UNLIKELY to discover.
*no duty to inspect
85
What duty does a landowner owe an invitee?
Duty to warn of dangerous artificial conditions KNOWN to owner that trespasser is UNLIKELY to discover
AND
Duty to make reasonable inspections and make safe (including warnings)
86
Examples of licensees
1. social guests
2. firefighters
3. police officers
87
Examples of invitees
1. customers
| 2. mailman
88
What if the property is available to the public at NO CHARGE for recreational purposes, what is the owner liable for?
Only willful and wanton conduct (conscious of consequences of your negligence but indifferent)
89
Attractive nuisance doctrine: elements
1. dangerous condition present that owner KNOWS or or SHOULD KNOW of
2. owner KNOWS or SHOULD KNOW children frequently come near the dangerous condition
3. condition is likely to cause injury
4. child is UNABLE to appreciate the risk
5. expense of remedying the situation is slight compared to the risk involved with keeping it the same way
90
Negligent infliction of emotional distress: general rule
no duty, no liability
91
Negligent infliction of emotional distress: zone of danger (MBE ONLY)
If P is within the zone of danger AND there is a physical manifestation
Zone of danger means you almost were the one hit by the car, etc
92
Negligent infliction of emotional distress: bystander recovery
Recover only if:
1. person personally observed the accident
2. person is closely related to the victim
3. physical manifestation
93
Breach of duty: when does P NOT have to point to specific conduct
Res ipsa loquitur
94
res ipsa
1. The event is one that does not ordinarily occur in the absence of negligence AND
2. the instrumentality was within D's exclusive control
95
Effect of res ipsa on P's case
Case goes to the jury, D needs to explain what happened in his case
96
Negligence: causation prong - what are the different tests
But for
| Substantial factor
97
Substantial factor test
Use when multiple Ds have commingled causes, either of which alone would have injured P
(2 fires both coming towards P's house)
98
Burden shifting test
When you can prove there was negligence of multiple Ds but you aren't sure which did it
99
What types of intervening causes are foreseeable?
1. subsequent medical malpractice
2. negligent rescue
3. reaction forces
4. subsequent diseases or accidents
100
Defenses to negligence
1. contributory negligence
2. assumption of risk
3. comparative negligence
101
Will damage be presumed in a negligence case?
NO. P must prove actual damages.
102
Imputed contributory negligence
Contributory negligence will be imputed only where P and negligent person stand in such a relationship where P would be found vicariously liable if a third party brought an action.
103
Last clear chance
Permits P to recover despite his own contributory negligence
104
When will contributory negligence bar recovery (decrease recovery in a comparative negligence jurisdiction)?
When P is bringing suit under:
1. wrongful death
2. loss of services
contributory negligence of the person who was injured will bar (or reduce) recovery because these causes of action are derivative --they are on behalf of the injured person, so you have to think of that person and what that person did
105
Assumption of risk: elements
1. must know the risk AND
| 2. voluntarily assumed it
106
Partial comparative
P won't recover if 50% or more at fault
107
Avoidance of consequences
This will reduce P's recovery -- means that P failed to mitigate
108
What happens if a person expressly assumed the risk?
complete bar to recovery
109
What will destroy the "voluntariness" prong of assumption of risk?
1. absence of an alternative (no longer voluntary)
| 2. emergency (person jumps in front of car to save child - not voluntary assumption of risk)
110
In a comparative negligence jurisdiction, is there any defense that will completely bar recovery?
Express assumption of risk
111
Abnormally dangerous
The activity itself could NOT be conducted except with a high degree of risk
Activity must be uncommon for its location
112
Strict liability: products liability
1. must be merchant seller
2. product must be defective
3. product must have been defective when it left D's hands
4. P made a foreseeable use of the product
113
There types of products liability cases
1. failure to warn
2. product defect
3. design defect
114
Defenses to products liability cases (in traditional jurisdiction)
1. contributory negligence: will NOT bar recovery
| 2. assumption of risk: will BAR recovery
115
Design defect: when will a D be strictly liable?
If there was a feasible alternative to make the product safer.
116
Nuisance: elements
Conduct that causes a SUBSTANTIAL and UNREASONABLE INTERFERENCE with the use and enjoyment of property.
117
When will employers be liable for the torts of independent contractors?
1. independent contractor is engaged in an inherently dangerous activity
2. independent contractor is performing a non-delegable duty (duty to keep premises safe)
118
When will there be joint and several liability?
1. joint tortfeasors: two or more persons where SEPARATE independent acts of negligence cause a single indivisible injury
2. partners in a partnership
3. employer and employee
4. concert of action
5. indivisible harm
119
What types of actions can you bring on behalf of someone if he dies?
1. wrongful death
| 2. survival action (brought by estate representative)
120
Wrongful death: who are these actions brought by?
Decedent's beneficiaries for their own loss of support and companionship
121
Survival action: who are they brought by?
Brought by decedent's estate based on claims that the decedent could have brought had he lived
122
What claims can you not bring a survival action on?
MBE: defamation, invasion of privacy torts (intangible personal interest)
GA: all actions can be brought
123
Effect of defenses on wrongful death
Any defenses that existed against the deceased can be pleaded in a wrongful death case.
124
What if a beneficiary to a wrongful death action was contributory negligent?
Recovery may be reduced under the state's comparative negligence rules
125
Damages in a wrongful death case
- full value of decedent's life
- loss of support (future earnings)
- loss of consortium (while spouse was alive)
- emotional damages
126
Sovereign immunity: federal gov't liability
1. liability for torts (except assault, battery, false arrest, etc)
2. NOT liable for actions that are discretionary, liable for ministerial actions
127
What are discretionary activities by a gov't official?
Ones that involve planning or decisionmaking.
128
When will the gov't be liable for a "public duty" such as a duty to protect someone (police)
1. assumption of an affirmative duty
2. knowledge that inaction could lead to harm
3. direct contact b/w municipality and the injured party
4. party's justifiable reliance on the gov't
129
When immunity is retained by a municipality, when will gov't still be liable?
For proprietary functions - when gov't is basically acting as a private corporation (utility companies, maintaining a parking lot)
130
Immunity of public officials
Immunity if public official is doing something discretionary.
No immunity for ministerial duties.
131
Survival action: damages
- pre death pain and suffering
- funeral expenses
- punitive damages
132
Who can bring a wrongful death action?
1. surviving spouse
2. child (if no surviving spouse)
3. personal representative of the estate (if no spouse or child)
133
Five theories for products liability cases
1. intent
2. negligence (can use res ipsa loquitor theory)
3. strict liability
4. breach of implied warranty of merchantability OR breach of implied warranty of fitness for a particular purpose
5. breach of express warranty or misrepresentation theory (fraud)
134
Statute of limitations: products liability cases
10 years from the date of the FIRST sale for use or consumption of the personal property causing the injury
*remember, 2 years for personal injury from date of injury
135
Statute of limitations for a breach of implied warranty of merchantability
4 years (oral contract breach)
