MBE Torts Flashcards
(28 cards)
Conversion
Conversion is an intentional exertion of dominion or control over the plaintiff’s chattel that so seriously interferes with the plaintiff’s ownership rights that the defendant is liable for the fair market value of the chattel at the time of the conversion. A defendant who initially uses the plaintiff’s chattel with permission commits conversion when the defendant:
(1) intentionally uses the chattel in a manner that exceeds the scope of permission and
(2) seriously violates the plaintiff’s right to control the chattel.
The plaintiff can recover the fair market value of the chattel at the time the conversion occurred
Trespass to chattels vs conversion
Trespass to chattels:
(1) Minor intentional interference with plaintiff’s right to control chattel
(2) Liable for actual damages—eg, cost of repairs, loss of use
Conversion:
(1) Substantial intentional interference with plaintiff’s right to control chattel
(2) Liable for fair market value of chattel at time of conversion
Innkeeper liability
Under the traditional common-law approach, innkeepers owed the highest duty of care to their guests and could be liable for even slight negligence. However, in most jurisdictions today and the Third Restatement, innkeepers only owe a duty to use ordinary care to protect their guests while they are on the premises.* Ordinary care is the care that a reasonably prudent person would use under the circumstances.
To determine whether a defendant has used ordinary care, the trier of fact (e.g., the jury) may consider all relevant factors—including compliance with community or industry custom. But compliance with (or deviation from) custom is not conclusive on the issue of negligence. That is because custom is merely one factor considered by the fact finder to determine whether the defendant acted as a reasonably prudent person.
traditional contributory negligence defense
In traditional contributory negligence jurisdictions (as seen here), a plaintiff’s failure to use reasonable care for his/her own safety is a complete defense to negligence. One way the defendant can establish the plaintiff’s failure to use reasonable care is through the doctrine of negligence per se. Under this doctrine, the plaintiff’s negligence is presumed if:
(1) the plaintiff violated a statute
(2)the statute was intended to prevent the type of harm suffered by the plaintiff and
(3) the plaintiff is within a class of persons that the statute was intended to protect.
However, even when negligence per se is established, the defendant still must prove that the plaintiff’s violation of the statute caused the plaintiff’s harm.
Pure comparative negligence defense (default rule on MBE)
Plaintiff’s negligence reduces recovery by plaintiff’s proportionate fault (eg, plaintiff 90% at fault can recover 10% of damages)
Who can strict products liability claims be brought against?
Strict products liability claims can only be brought against commercial suppliers or sellers. This means that the defendant must be in the business of manufacturing, selling, or otherwise distributing the type of defective product that harmed the plaintiff. Accordingly, those in the business of providing services are not subject to strict products liability.
Prima facie case of negligence
Proof of a duty, breach of that duty, causation, and damages
General duty of care
Duty to act as a reasonable person of ordinary prudence under the circumstances, owed to all foreseeable persons who may foreseeably be injured by the defendant’s breach
Physician’s duty of care
A physician is held to a national standard and is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner.
Strict products liability
Under strict products liability, the manufacturer, retailer, or other distributor of a defective product may be liable for any harm caused by the product. The plaintiff must prove (i) the product was defective (in manufacture, design, or failure to warn), (ii) the defect existed at the time the product left the defendant’s control, and (iii) the defect caused the plaintiff’s injuries when the product was used in an intended or reasonably foreseeable way.
Manufacturing defect
A manufacturing defect is 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 own specifications.
Implied warranty of merchantability
The implied warranty of merchantability warrants that the product being sold is generally acceptable and reasonably fit for the ordinary purposes for which it is being sold. Any product that fails to live up to this warranty constitutes a breach, regardless of any fault by the defendant.
Market share liability doctrine (causation)
Under the market share liability doctrine, if the plaintiff’s injuries are caused by a fungible product and it is impossible to identify which defendant placed the harmful product into the market because the products are truly identical, the jury can apportion liability based on each defendant’s share of the market.
Alternative causation doctrine
Under the alternative causation doctrine, if the plaintiff’s harm was caused by (i) one of a small number of defendants, (ii) each of whose conduct was tortious, and (iii) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff’s harm.
Concert of action doctrine (causation)
Under the concert of action doctrine, if two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the plaintiff’s harm, then all the defendants will be held jointly and severally liable.
drivers’ duty of care to passengers
In most jurisdictions, automobile drivers owe a duty of ordinary care to their passengers (persons who pay money for the ride) as well as their guests (persons who ride for free).
However, a minority of jurisdictions have enacted “guest statutes.” Under these statutes, the only duty that automobile drivers owe to their guests is to refrain from gross or wanton and willful (i.e., reckless) misconduct. As a result, a plaintiff-guest can recover damages from a defendant-driver under a guest statute if the driver’s reckless behavior caused the guest’s injuries.
strict liability for defective component of product
However, the commercial supplier of a component that is integrated into a defective product is strictly liable only when:
(1) the component is defective or
(2) the supplier substantially participated in the integration of the component into that product’s design and the component’s integration caused the product to be defective.
Negligence per se
Under the doctrine of negligence per se, the majority approach is that duty and breach can be conclusively presumed if:
(1) the defendant violated a statute or ordinance
(2) that statute or ordinance was intended to prevent the type of harm suffered by the plaintiff and
(3) the plaintiff is within a class of persons that the statute or ordinance was intended to protect.
However, under the minority approach, the violation of a statute or ordinance is merely evidence of negligence that creates a rebuttable presumption that the defendant breached a duty of care.
Either way the plaintiff still has to prove causation and damages
bystander theory of IIED
When a plaintiff’s emotional distress stems from witnessing harm to a close relative, the plaintiff can sue for intentional infliction of emotional distress (IIED) under the bystander theory. Liability arises under this theory when the plaintiff proves all of the following facts:
(1) The defendant engaged in extreme and outrageous conduct that emotionally or physically harmed the plaintiff’s close family member.*
(2) The defendant’s conduct was intentional or reckless (i.e., the defendant knew that the plaintiff was present and closely related to the injured person).
(3) The plaintiff contemporaneously perceived that conduct* and suffered severe emotional distress.
*The plaintiff need not prove these facts if the defendant’s design or purpose was to cause severe emotional distress to the plaintiff.
reasonable force in the defense of others
The privilege to use reasonable force in the defense of third parties exists when the defendant reasonably believes that:
(1) the circumstances are such that the third party has a privilege of self-defense and
(2) the defendant’s action is immediately necessary to protect the third party.
deadly force in the defense of others
A defendant can threaten or use deadly force to defend a third party when the defendant reasonably believes that (1) the plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force upon the third party, (2) the third party is thereby put in peril of death, serious bodily harm, or rape by the use or threat of physical force, and (3) the defendant can safely prevent the peril only by the immediate use of deadly force
Traditional landowners’ duty owed to trespassers
A land possessor owes a duty of reasonable care to foreseeable plaintiffs who enter the land. But under the traditional approach, a land possessor generally owes no duty to trespassers—i.e., persons who intentionally enter another’s land without permission—unless the land possessor knows of or has reason to anticipate their presence.* A land possessor who breaches this duty and causes the plaintiff physical harm is liable for negligence.
*Although a land possessor generally owes no duty to undiscovered or unanticipated trespassers, the land possessor must not act in an intentional, willful, or wanton manner that causes physical harm—e.g., by setting a trap that causes death or serious bodily injury.
liability for private nuisance
Liability for private nuisance arises when a defendant’s interference with the use and enjoyment of the plaintiff’s property is both:
(1) substantial – offensive, annoying, or intolerable to a normal person in the community and
(2) unreasonable – effectively renders the land unavailable for ordinary use or enjoyment by the possessor and satisfies certain criteria.
Therefore, a plaintiff who is not bothered by an interference with the use and enjoyment of his/her property can still prevail so long as a normal person in the community would find the interference offensive, annoying, or intolerable (i.e., the interference is still substantial).
Traditional landowners’ duty to licensees
Under the traditional common-law approach, land possessors owe a duty of reasonable care to foreseeable land entrants—including persons who enter the land with permission (i.e., licensees). When this occurs, the land possessor owes licensees a duty to (1) warn about concealed dangers that are known or should be obvious to the land possessor and (2) use reasonable care in active operations conducted on the land. A land possessor who breaches this duty and causes the licensee physical harm is liable for negligence.
