MBE torts Flashcards
(37 cards)
Elements of Assault:
(1) act by defendant that created reasonable apprehension of battery; (2) defendant intended to bring about the reasonable apprehension; and (3) causation
Elements of false imprisonment:
(1) plaintiff was confined in a bounded area; (2) defendant intended to confine the plaintiff; and (3) causation
Elements of Trespass to Chattels:
(1) defendant intentionally; (2) interferes w/ plaintiff’s use or possession of personal property; and (3) actual harm if defendant doesn’t take the property out of the plaintiff’s possession
When is self-defense available?
person reasonably believes they are being/ about to be attacked; can use force reasonably necessary under the circumstances to protect against injury
An attractive nuisance exists where:
(1) defendant is aware, or should be aware that artificial condition poses a risk to children of serious injury/ death; (2) defendant knows/has reason to know children will enter land; (3) children wouldn’t realize the danger of the condition; and (4) risk of harm is great compared to cost of eliminating the dangerous condition
What are the theories of products liability?
(1) negligence; (2) strict product liability; (3) implied warranty of merchantability and fitness for particular purpose; (4) express warranty; and (5) misrepresentation
To prevail on a strict product liability claim, plaintiff must show:
(1) D was commercial supplier; (2) product was defective; (3) product wasn’t substantially altered after leaving the factory; and (4) plaintiff made foreseeable use
Is privity required in products liability actions?
No- the whole chain of distribution (manufacturer, seller, retailer) may be held liable; and users, consumers, and bystanders can sue
How can a plaintiff prove a product is defective?
showing the product has a manufacturing defect, a design defect, or an information defect
When is a product defectively manufactured?
it is dangerous beyond the expectations of the ordinary consumer because of a departure from properly made products
When may a product have a design defect?
If the product has dangerous propensities and plaintiff can show the defendant could have made the product safer without serious impact on utility
When does a product have an information defect?
Failure to include adequate warnings/ instructions of the risks involved when using the product that may not be apparent
What damages are recoverable under a strict product liability theory?
physical injury or property damages; sole claim cannot be economic loss
What are the elements of a negligence products liability claim?
(1) duty; (2) breach; (3) actual and proximate cause; and (4) damages
How is a duty breached in a negligent products liability claim?
negligent conduct by defendant leading to supplying a defective product
Implied warranty of merchantability and fitness
- Implied in every sale of goods
- Merchantability = breach occurs if sale of goods is not generally acceptable or fit for ordinary purpose
- Fitness= breach occurs if sale of goods is not fit for the purpose seller knows/ has reason to know for which the goods are required and buyer is relying on seller’s judgment to pick the goods
Under a theory of implied warranty of merchantability and fitness for a particular purpose, must the plaintiff prove the defendant is at fault?
No- if product fails to meet standards imposed by either of the implied warranties, the defendant will be liable
What are the elements for misrepresentation is a strict liability claim?
(1) D is seller of such products; (2) D made misrepresentation of a material fact; (3) D intended to induce reliance on the misrepresentation; (4) justifiable and actual reliance by plaintiff on the misrepresentation; and (5) causation and damages
Doctrine of Vicarious Liability for Employer-Employee
-Employer is liable for tortious acts committed by employee within the scope of employment UNLESS employee has substantially deviated from employer’s business for their own purpose; or the employee has committed an intentional tort
When may an employer be vicariously liable for its employee’s intentional torts?
(1) acting to further business of the employer; (2) force is a part of the employment (i.e. security guards); (3) friction is generated by the employment
Assumption of Risk defense:
- complete defense (I.e. if defendant prevails in raising the defense, defendant will not be liable)
- traditional rule of apportioning fault does not apply because it is a complete defense
- plaintiff will be denied recovery under the defense if (1) knew of the risk; and (2) voluntarily proceeded in the face of the risk
What does plaintiff have to demonstrate to prevail on a strict product liability claim based on misrepresentation:
that the misrepresentation made was one of material fact concerning the quality/ nature of the product and plaintiff’s reliance on the misrepresentation resulted in injury
When may a bystander recover for negligent infliction of emotional distress?
(1) plaintiff and person injured by Defendant’s negligence are closely related; (2) plaintiff was personally present at the scene of the injury; and (3) plaintiff observed/ perceived the event
What are the elements for Fraud?
(1) Defendant made a misrepresentation; (2) defendant knew misrepresentation was false; (3) defendant intended to induce plaintiff’s reliance on the misrepresentation; (4) plaintiff did rely on the misrepresentation; and (5) pecuniary damages
