MBE Torts

Question 1

Intentional Tort: Prima facie case of intentional tort

Answer 1

Act by D- volitional movement

Intent - specific and general

Causation

Question 2

Intentional Tort: Specific and General Intent

Answer 2

Specific intent - intent to bring about specific harm.

General intent - substantial certainty that tortious conduct will result from D’s act

Question 3

Intentional Tort: Causation (intentional tort)

Answer 3

D’s conduct must be a substantial factor in bringing about the resulting harm

Question 4

Intentional Tort: Transferred Intent Doctrine

Answer 4

D acts with the intent to commit a given tort but:

A: Commits it against different person than intended;

B: Commits a different tort than intended

or

C: both

Question 5

Intentional Tort: Transferred intent from intended act to tort actually committed

Applicable Torts

Answer 5

D’s original intent transfers to the tort actually committed and/or person actually harmed, resulting in D’s liability in what types of charges?

Assault,

battery,

false imprisonment,

and

trespass to land or chattel.

Question 6

Elements of Assault

Answer 6

Act by D

• ^{that creates a <strong>reasonable apprehension in P</strong>}
• ^{of <strong>harmful or offensive contact to P’s person. </strong>}

Intent

Causation

Question 7

Assault

P’s requirements (knowledge and apprehension)

Answer 7

P’s knowledge/expectation

• knowledge of D’s act
• an expectation that it will result in immediate harmful or offensive contact to P’s person.
  
  • ^{The apprehension must be of immediate contact. Threats of future contact are insufficient. Similarly, there is no assault if defendant is too far away to do any harm or is merely preparing for a future harmful act.}

P’s Apprehension

• The apprehension must be reasonable.
  
  • Apprehension may reasonably exist though actual contact is impossible, so long as there is the apparent ability to cause contact.
  • Fear or intimidation need not be present.

Question 8

Element of Assault: “Apprehend an Immediate harmful or offensive contact”

Answer 8

P must apprehend an immediate or imminent battery.

Words or threats of future battery are usually insufficient, unless coupled with some overt act ^{(e.g picking up a weapon, clenching fists, etc)}

• _{A conditional threat, when combined with an overt act, is sufficient for assault, so long as D did not have the right to impose the condition (self-defense).}
  
  • _{E.g., “Your money or your life” is assault. “If you try to hit me, I’ll fight back” is not assault.​}

However, words may negate an assault (if they remove Ds reasonable apprehension).

Question 9

Element of Assault: Damages

Answer 9

Actual damages are not required.

Nominal damages may be awarded

Punitive damages when there is malice.

Question 10

Battery - elements

Answer 10

Defendant will be liable for battery when she intends harmful or offensive contact and harmful or offensive contact results.

Harmful or offensive contact by D to P’s person

Intent

Causation

Question 11

Battery - reasonable person standard

Battery - scope of contact

Battery - P’s mindset

Answer 11

Battery - reasonable person standard

• Whether the contact is harmful or offensive is judged by the reasonable person test, an objective standard.

Battery Contact - scope of contact

• Anything connected to plaintiff’s person is considered plaintiff’s person, e.g. something she is holding.

Battery - P’s mindset

• P need not be conscious that the contact occurred at the time.

Question 12

Battery - Damages

Answer 12

Actual damages are not required.

A court may award nominal damages, or punitive damages where malice was present.

Question 13

False Imprisonment Elements

Answer 13

WILLFUL act . . .

. . . intending to confine the plaintiff without the plaintiff’s consent and without authority of law

D’s act causes or indirectly the plaintiff’s confinement

P is aware of his/her own confinement

Question 14

False Imprisonment - Act

Answer 14

Threats of False Imprisonment - Threats of immediate physical force may also be sufficient to be acts of restraint. A mere threat to imprison will not qualify for false imprisonment. Typically when determining whether a threat counts as false imprisonment, the court will look at whether the plaintiff had a just fear of injury.

Invalid Use of Legal Authority - An example of an invalid use of legal authority is the detainment or arrest of a person without a warrant, with an illegal warrant, or with a warrant illegally executed. So long as the person is deprived of his personal liberty, the amount of time actually detained is inconsequential.

Shopkeeper’s Privilege - One of the affirmative defenses to the false imprisonment tort is called the shopkeeper’s privilege defense. in this situation, a defendant store-owner has detained the plaintiff because the defendant believed that the plaintiff has stolen or is attempting to steal an item from the defendant. The doctrine of shopkeeper’s privilege states that in this situation, a shopkeeper defendant who reasonably believes that the plaintiff has stolen or is attempting to steal something from the defendant shopkeeper may detain the plaintiff in a reasonable manner for a reasonable amount of time to investigate.

Question 15

False Imprisonment: Confinement to bounded area

Answer 15

P must be aware of or harmed by confinement

• _{P’s freedom of movement must be limited}
• _{Physical barriers;}
• _{Physical force;}
• _{Failure to provide escape when there is a duty to provide it.}

No reasonable means of escape THAT P IS AWARE OF

• If reasonable person could get out, no false imprisonment

If means of escaping will result in the risk of physical harm to the detainee, then the area is bounded.

Threatening to harm the detainee’s family if the detainee leaves would also result in the area being bounded.

Question 16

Intentional Infliction of Emotional Distress - elements

Answer 16

Defendant will be liable for intentional infliction of emotional distress when she acts in a manner amounting to extreme and outrageous conduct, and with the intent to cause plaintiff severe emotional distress, or with recklessness as to the effect of her conduct, and severe emotional distress on the part of the plaintiff results.

• Extreme and outrageous conduct by D

​

• Intent or recklessness (as to causing the distress)
• Causation

​

• Severe emotional distress in P results

Question 17

IIED

Extreme and Outrageous Conduct - Defined

Non-Outrageous Conduct - When can it trigger IIED?

Answer 17

Conduct exceeds bounds of decency in society

• ^{_{Examples of outrageous conduct:}}
  
  • ^{_{Extreme business conduct, such as extreme collection methods, may be actionable.}}
  • ^{_{Misuse of authority in some circumstances may be actionable, e.g. school authorities threatening pupils.}}
  • ^{_{Offensive or insulting language will generally not be characterized as outrageous conduct unless there is a special relationship between plaintiff and defendant or a sensitivity on plaintiff’s part of which defendant is aware.}}

Non-outrageous conduct may be actionable if:

• Individual Targeting: D targets P’s known sensitivity or weakness D’s conduct is continuous
• Fragile Class: Repetitive targets P who is a member of a “fragile” class (elderly, children, preg. women, D is a common carrier or innkeeper)
• Duties to Patrons: Common carriers and innkeepers owe special duties to their patrons that will be a basis for liability even when the act is less than outrageous.

Question 18

IIED - “Severe emotional distress”

Answer 18

P must suffer severe emotional distress from D’s conduct.

• Physical symptoms not necessary ^{(usually are necessary in Negligent inflication of emotional distress)}

Note: watch for facts indicating extreme, outrageous conduct but P is unbothered- this is not IIED!

Question 19

IIED - Intent or recklessness

Answer 19

Recklessness = D disregards the likely consequences of his acts

Question 20

IIED - Bystander Requirements

Answer 20

When D intentionally causes severe, physical harm to a third person and the P suffers severe emotional distress because of her relationship to the injured person, the elements of intent and causation may be harder to prove.

Requirements:

• P was present when the injury occurred to the other person;
• P was a close relative of the injured person;
• and
• D knew that P was present and a close relative of the injured person.

Note: P need not establish presence or family relationship if she shows D had a design or purpose to cause severe distress to plaintiff. ^{E.g. D calls P to tell her (truthfully) that she has killed her best friend, for the purpose of causing her distress.}

Many courts have allowed recovery where the mental distress results from intentional or reckless mishandling of a relative’s corpse.

Question 21

Interference with Property: Three types of Interference

Answer 21

^{occurs through any of the following}

Dispossession - depriving P of his possessory rights in chattel

Trespass - minor interference or damage

Conversion- significant interference or damage that justifies D paying chattel’s full value.

Question 22

Chattel

Answer 22

tangible personal property (moveable)

Question 23

Recapture of Chattels

Answer 23

A defense to trespass

D may use peaceful means to recover possession of chattel taken unlawfully.

Question 24

Use of force-Recapture of chattels

Answer 24

reasonable force may be used to recapture chattel, but not deadly force or force sufficient to cause serious bodily harm

Question 25

Recapture of Chattel - Privilege to enter depends on

Answer 25

Privilege to enter **depends on who possesses property:** * **Wrongdoer**: reasonable time to reclaim chattel in a reasonable manner. * **Innocent person's property**- 1st give notice required to landowner. If he refuses, D may enter at a reasonable time and peaceful manner.

Question 26

Recapture of chattels - limitations

Answer 26

**D-Owner** may recapture from * original wrongdoer * or * 3rd person **who knows the chattel was wrongfully obtained.** **​** **D-owner must make a timely demand for return** * exception **_^{not required if making demand would be futile or dangerous}_** **_^​_** **Privilege to enter depends on who possesses property:** * Wrongdoer: *reasonable time* to reclaim chattel in a *reasonable manner.* * Innocent person's property- * 1st give notice required to landowner. * If he refuses, D may enter at a reasonable time and peaceful manner.

Question 27

Exception that DISALLOWS D (eliminates his privilege) to enter another's property to retrieve chattel

Answer 27

If D's chattel is on another's property **through D's fault,** D does not have a privilege to enter property.

Question 28

Conversion

Answer 28

*significant interference* or *damage* that justifies paying chattel's _full value_ Can become conversion under continuing trespass theory

Question 29

Requirement for conversion

Answer 29

A longer and/or more damaging use of P's chattel gives rise to conversion. All that's required is that D's conduct ***cause a serious invasion** of the chattel interest* of another in some manner. \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Conversion does not require that D *damage or permanently deprive* the owner of the chattel.

Question 30

Trespass to Land-Elements

Answer 30

**Physical invasion** of P's real property by D **Intent**- D does not need to know the land belongs to another **Causation**

Question 31

Tresspass and Conversion Damages (definition and types)

Answer 31

**_Trespass_** - P can recover the cost of ***repair*** or ***rental*** value of Chattel. **_Conversion_**- Conversion *does not require that D damage or permanently deprive the owner* of the chattel. Only requires that D's conduct cause a serious invasion of the chattel interest of another in some manner. * ***full market value*** *at the time of conversion* * or * ***repossess*** the chattel. (replevin)

Question 32

Trespass to Land-Physical invasion requirement

Answer 32

1. D enters P's property or propels an object onto it. ( walks, throws ball, chases someone) 2. P must only have actual or constructive possession- ownership not required 3. Must be a physical invasion 4. P's real property includes: surface space, airspace, and subterranean space to a reasonable distance.

Question 33

Trespass to Land- damages

Answer 33

Damages not required- compare to trespass to chattel and conversion

Question 34

Shopkeeper's privilege

Answer 34

Store may detain suspected thief if: * **reasonable cause** to **believe theft occurred** * detainment **conducted in reasonable manner** * detains for **only reasonable period of time** * detains **only for investigation** * _No deadly force allowed_ NOTE: Shopkeeper may be held liable for any harm caused by acts that exceed the privilege.

Question 35

Consent-Definition

Answer 35

A defense to all intentional torts. Consent may be given expressly. It may also be implied from custom, conduct, or words, or by law. Capacity required of P NOTE: drunk, mentally impaired, children incapable of consent

Question 36

Express consent- Definition and Invalid Forms of Express Consent

Answer 36

**_P gives D verbal or written consent._** **_Exceptions to express consent:_** * **Mistake**: Consent invalid if D caused mistake. * **Fraud**: not valid if the fraud goes to an essential matter that induced the consent. * **Duress**: Usually invalid. * Note that threats of future action or future economic deprivation do not constitute legal duress to invalidate consent.

Question 37

Implied consent-definition

Answer 37

Implied consent is generally of two types: **Apparent consent:** a reasonable person would infer from P's conduct that she consented. ^{E.g. engaging in a contact sport.} May also be inferred from usage and custom, ^{e.g. a person is presumed to consent to the ordinary minor bumping experienced in a crowd.} **Implied by law:** where action is necessary to save a person’s life or some other important interest in person or property. * Applies in emergency situations where P is incapable of consenting and a reasonable person would conclude some contact is necessary to prevent death or serious bodily harm. ^{E.g. emergency surgery on unconscious person.}

Question 38

Scope of Consent - Capacity of Individuals, Criminal Acts, D's Actions

Answer 38

**Capacity**: Incompetents, drunken persons, and very young children are deemed incapable of consent. Consent of parent or guardian is necessary. **Criminality**: A person cannot consent to criminal activity. The modern trend is that consent is ineffective where the criminal act is a breach of the peace ^{(e.g. a street fight)} and effective when it is not ^{(e.g. prostitution)}. Consent not a good defense when P is part of a class the law exists to protect. **Scope of Consent**: When Ds actions exceed the scope of the consent, the defense is invalid for the additional acts.

Question 39

Self-Defense- requirements

Answer 39

When a person reasonably believes she is being, or is about to be, attacked, she may use such force as is reasonably necessary to protect herself. * **Reasonable mistake** as to the threat of attack does not invalidate the defense. * **Initiating Force:** An aggressor may not use the defense. However, if the aggressor used non-deadly force, and was then confronted with deadly force, he may use deadly force in response. * **No duty to retreat (majority).** One may stand one’s ground and repel an attack. * **Reasonable Force:** One may not use deadly force in response to non-deadly force. The amount of force used must be reasonable. * **Covers accidental injuries on 3rd Parties.** * Exceptions: * D might be liable to the bystander for negligence. * If D deliberately injured a bystander to protect himself, the defense is not a good one.

Question 40

Defense of Others- requirements

Answer 40

D steps in the shoes of the intended target. D may not use greater force than the intended target could have reasonably used Reasonable mistake by D is allowed

Question 41

Defense of Property - Generally

Answer 41

Available to prevent tort against property **Request to desist is usually required,** _unless the circumstances make it clear that such request would be futile or dangerous._ **Deadly Force NEVER ALLOWED,** including traps, spring guns, and vicious dogs.

Question 42

Defense of Property - Mistake

Answer 42

**_Reasonable mistake_** does **_not invalidate_** the defense, if mistake pertains to * whether *an intrusion occurred* * whether a *request to desist is required* EXCEPTION - *Mistake will invalidate the defense if entrant had a privilege to enter the property that supersedes the defense of property right,* ^{so long as the entrant did not cause the mistake, e.g. by refusing to inform the property owner of the facts.}

Question 43

Defense of Property - Privileges to Enter Land

Answer 43

Privileges to enter land that **_supersede the defense of property right are:_** **_necessity_,** **right of _reentry_,** **right to enter another’s land to _recapture chattel_.** \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **Privilege SUPERCEDES** the defense of property right, **UNLESS** **_entrant causes the mistake_** _{e.g. by refusing to inform the property owner of the facts.}

Question 44

Necessity-Definition

Answer 44

A defense to torts against property (trespass to land, trespass to chattel, conversion) in which D damages P's property in an effort to avoid a greater danger

Question 45

Necessity Requirements

Answer 45

**D's interference** with P's property must be **reasonably necessary** to avoid **_immediate_** **_threatened injury_**. **_Immediate Threatened Injury_** \> interference undertaken to avert it.

Question 46

Types of Necessity

Answer 46

Public Necessity - absolute defense Private Necessity- limited defense

Question 47

Public Necessity- requirements

Answer 47

Absolute Defense - P cannot recover any damages D's invasion of P's property must be ***reasonable necessary*** to protect **_the community_** or **_a large group of people_**

Question 48

Private Necessity- requirements

Answer 48

where the defense is to protect individual persons or property, the actor must pay for the damage she causes. * P **can recover actual damages**, but _not punitive or nominal damage_s, (unless D's act benefited P.)

Question 49

Intrusion upon seclusion has these elements

Answer 49

An **act** of **prying** or **intruding** by **D ⇒ upon P**; The intrusion would be **objectionable** to a **reasonable person**; and Object of intrusion or prying is **“private.”**

Question 50

Publication/Disclosure of Private Facts

Answer 50

Defined * Publication or public disclosure by D * Of private information about P; * The **reasonable person** would **object** to the **facts being made public**. \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **The Facts MAY or MAY NOT be TRUE** **_A public figure_** usually not a P in this type of action. **_Matters of public record_** may never constitute private facts.

Question 51

Defamation- Elements

Answer 51

**Defamatory statement**- adversely affect's P's reputation (must be based on specific facts). * ^{Statements of fact may always be defamatory, but statements of opinion may also be if appear to be based on specific facts + express allegation of those facts would be defamatory.} * ^{The statement may be defamatory on its face, or by innuendo, _{e.g. statement that a woman has just given birth when she has only been married one month.}} **Concerning P**- *must be concerning an _identifiable group_. ^{(E.g., saying, “Someone in San Francisco is a draft dodger,” is not slander.)​.}* * *^{Note: P MUST BE ALIVE}* **Publication** - statement must be *intentionally or negligently* made to a _3rd person who understood it_ * ^{No requirement that 3rd party be a part of the conversation - can be a listener/reader/etc} **Harmful to P's reputation** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **Falsity & Fault -** only required if statement involves a matter of public concern or a public figure or official.

Question 52

Defamation Libel, Slander, and Slander Per Se DEFINED

Answer 52

**Libel** = _written_ defamatory statement * An oral repetition of libel is still libel, not slander. * NOTE: TV and radio broadcasts are considered libel **Slander** = a _spoken_ defamatory statement **Slander Per Se** = a defamatory statement that: * Concerns and adversely reflects on P's business or professional reputation * Claims P has a Loathsome Disease * Claims P committed a crime of moral turpitude * Imputes a woman's chastity

Question 53

Defamamtion - Liability for republication?

Answer 53

the republisher of a defamatory statement is liable **_to the same extent as the original publisher_** * Each republisher along the chain is liable. A republisher may be liable *even if she **states that she does not believe the allegation and that it came from a different source.***

Question 54

Defamation damages burden

Answer 54

P's burden in proving damages depends on whether it was libel, slander, or slander per se **Libel -** P does NOT have to prove special damanges * _{Libel = written defamatory statement} * _{NOTE: TV and radio broadcasts are considered libel} **Slander** - P MUST prove special damages _unless statement constitutes slander per se_ * _{Slander = a spoken defamatory statement} * _{Special Damages - a specific economic loss} **Slander Per Se** - Does not need to prove special damages _{a defamatory statement that:} * _{Concerns and adversely reflects on P's business or professional reputation} * _{Claims P has a Loathsome Disease} * _{Claims P committed a crime of moral turpitude} * _{Imputes a woman's chastity}

Question 55

Defamation-Constitutional Considerations 1st Amendment Considerations

Answer 55

**1st amend. considerations arise when defamation involves ....** a public **figure**, * ^{Public Figures=one who has pervasive fame or notoriety or who voluntarily assumes a central role in a public matter} public **official** * ^{Public Official-= public office holder ​} **matter** of **public concern**. * ^{Matter of public concern- statement related to a community of interests or concerns (includes national interests)}

Question 56

Defamation-Constitutional Considerations- Elements If defamation involves a matter of public concern:

Answer 56

If defamation involves a matter of public concern, P must prove: 1. **_Falsity_**- P must prove statement was falso 2. **_Fault_**- P must prove D was at fault; **_Standards differ for public vs. private figures._** * **Public official/figure** = **actual malice standard** (knowledge of the statement's falsity or reckless disregard to whether it was false) * **Private figure** = **negligence standard** * Note: for defamation involving private figures and private matters there is no fault standard at common law

Question 57

Defamation: Damages Consideration: Libel

Answer 57

For libel, general damages are presumed and need not be proven. Special damages in this context mean pecuniary losses.

Question 58

Defamation: Damages Consideration: Slander

Answer 58

For slander, **_general damages are not presumed and must be proven_**, except in the cases of slander per se. **P must prove special damages unless the statement constitutes slander per se**. **Special damages = a specific economic loss.**

Question 59

Defamation: Damages Consideration: Slander Per Se

Answer 59

DO NOT NEED TO PROVE SPECIAL DAMAGES FOR SLANDER PER SE

Question 60

Defenses to Defamation-types

Answer 60

Consent Truth Privilege

Question 61

Defenses to Defamation: Consent

Answer 61

Consent is a complete defense ^{P may consent to an organization investigating her and sharing its finding with potential employers}

Question 62

Defenses to Defamation: Truth

Answer 62

Truth is a complete defense for cases of purely private concern

Question 63

Defenses to Defamation: Absolute or Qualified Privileges

Answer 63

**_Absolute privilege:_** * Government official communications: All 3 branches * Judicial proceedings (to judge, lawyers, witnesses) * Legislative proceedings * Executive proceedings * “Compelled” broadcast or publication ^{(e.g. equal time for candidates)} * Communication between spouses **_Qualified privilege_****:** D's liability for defamatory statements is limited if the purpose of the speech is to *_promote truthfulness_* and/or *_related to fair comment and criticism_*. * ^{Reports of public proceedings: excuses accurate reports only} * ^{Public interest: e.g. statements to a parole board} * ^{Fair comment and criticism: matters of general public interest} * ^{letters of recommendation/employment reference, (Must be asked, cannot affirmatively make slanderous statement)}; ^{book review,}; ^{reports of public proceedings}; ^{bank teller disclosing activity of account co-owner}

Question 64

Malicious Prosecution -definition

Answer 64

Arises when D initiates a frivolous charge or claim against P with an improper purpose (file false police report).

Question 65

Malicious Prosecution: Elements

Answer 65

1. D commenced a prior criminal or civil legal proceeding against P. Note: Prosecutors are immune from this) 2. Proceeding terminated in P's favor 3. No probable cause for the original proceeding ( D knew P was not guilty or had insufficient facts to reasonable believe P was guilty) 4. D had improper purpose in initiating the proceeding 5. Damages

Question 66

Abuse of Power- definition

Answer 66

Arises when D uses the legal system as an ulterior purpose to threaten or act against P

Question 67

Misrepresentation-types

Answer 67

Intentional-fraud or deceit Negligent

Question 68

Intentional Misrepresentation-elements:

Answer 68

1. D misrepresents a past or present material fact 2. D knows or believes the misrepresentation is false 3. D intends to induce P to act or refrain from acting in reliance on the misrepresentation 4. Actual reliance by P (causation) 5. Justifiable reliance by P 6. Damages - P must suffer monetary loss

Question 69

Negligent Misrepresentation elements:

Answer 69

1. D misrepresents a past or present material fact in a business or professional setting 2. Breach of duty of care owed to a particular P (ie D knew P could rely on the misrepresentation) 3. Actual and justifiable reliance by P 4. Damages- P must suffer monetary loss

Question 70

Appropriation

Answer 70

use of P's name or likeness for commercial purposes (promo or ads) without consent.

Question 71

Newsworthiness exception

Answer 71

no liability for use of name or likeness for reporting news

Question 72

Intentional Interference with Business Relations Elements and defenses

Answer 72

Arises when a 3rd party interferes with an existing contract * *Plaintiff:* * has a ***valid contractural relationship or business expectancy*** (includes contracts between P and 3rd party) * *Defendant:* * has ***knowledge of the relationship or expectancy*** * ***Intentionally interferes*** with that relationship * Interference ***causes*** a ***breach or termination*** in *P's* *contract or expectancy* * **Damages** **_Defenses_** * D's conduct a may be privileged when _it is a proper attempt to obtain business_ or _protect his interests_ (eg. competing for P's customers)

Question 73

Negligence Elements

Answer 73

Elements: * ^ Damages * ^ Causation * ^ Breach * ^ Duty CLIMB the LADDER

Question 74

Negligence Elements - Hierarchy of Elements (Ladder)

Answer 74

**Hierarchy is bottom up on image. D will have a stronger argument for defeating P at the lowest level possible.** * Ex. defeating Duty is a stronger answer than Causation **Elements:** ^ Damages ^ Causation ^ Breach ^ Duty (to reasonably foreseeable Ps in zone of danger)

Question 75

Negligence:Duty of reasonable care

Answer 75

**Duty of reasonable care: Imposed on all human activity.** **_Duty to act as an ordinary, prudent, reasonable person would act._**

Question 76

Negligence - duty of care - Reasonable person

Answer 76

**Physical**: Someone with **Ds physical characteristics**, *but with the knowledge and mental capacity of an ordinary person* ^{E.g. a reasonable epileptic would not drive a car.} **Mental**: The reasonable person has **average mental ability**. Thus, mentally retarded people are liable for harm caused by their negligence, even if it is the result of their lower mental capacity.

Question 77

Negligence Foreseeable Victim

Answer 77

Those within the zone of danger (area around D's activities in which a P could foreseeably be injured).

Question 78

Negligence Foreseeable Victim Rescuer's Exemption

Answer 78

Rescuer's Exemption: if D puts himself or another in danger and a third person attempts to rescue, D can be held liable for the rescuer's injuries, even if unforeseeable. EXCEPT Firefighters and other Professionals who assume the risk as professionals

Question 79

Negligence Foreseeable Victim Prenatal Injury or Death

Answer 79

A duty of care is owed toward viable fetuses. Thus, prenatal injuries are actionable. **Death of Fetus:** Most states also permit a wrongful death action if fetus dies. **Disabled Fetus:** Wrongful life damages **are not permitted**, when the P is a person born disabled because of failure to diagnose a birth defect. * However, parents may have an action for wrongful birth in such cases, *allowing damages for additional medical costs; or wrongful pregnancy for failure to provide a contraceptive procedure, allowing damages for unwanted labor (medical costs, pain and suffering)*. * If the child is born healthy, most states do not allow recovery for additional child-rearing expenses.

Question 80

Negligence: Duty of Care - Intended economic beneficiaries

Answer 80

Intended third party beneficiaries of economic transactions are owed a duty of care if D could reasonably foresee that negligence would cause harm.

Question 81

Negligence - Children's standard of care and Minimum Age for Liability

Answer 81

For child Ds, the duty is to **exercise the level of care that a child of the same age, experience, and training would exercise**. **Children get Adult Standard if:** * engaged in an **adult activity** * or * **inherently dangerous activity**. \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **_Minimum age for liability_**: Most courts do not have a set age at which liability cannot attach but judge each case on the evidence. However, it would be unlikely for a court to find a duty for a child below the age of four.

Question 82

Negligence:Standard of Care and Innkeepers

Answer 82

held to the utmost standard. Liable for even slight negligence to passengers and guests

Question 83

Negligence:Standard of Care- custom or usage in an industry

Answer 83

can be used to establish a standard of care, but failure to adhere does not automatically give rise to a breach of duty

Question 84

Negligence:Standard of Care- Professionals

Answer 84

Act with the care of an a**verage member of the profession** in **good standing** in **similar communities**. Specialists (neurosurgeons) are held to a national standard of care

Question 85

Statutory Standard of Care: Negligence Per Se

Answer 85

An existing statute may establish a duty of care, in which case the **specific duty imposed by the statute _will replace_ the general common law duty of due care** **Violation of the statue means P must only prove causation, not breach of duty.** *_Compliance_* *Does **not*** automatically ***_clear D of Liability_***

Question 86

Statutory Standards of Care and Negligence Per Se Requirements

Answer 86

1. Statute provides a **criminal penalty**. 2. Standard of **conduct is clearly** **defined** in the statute 3. P is within the **class of people t**he statute was designed to protect 4. The statute was designed to protect against the **type of harm** P suffered \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **Statutory Standards of Care and Negligence Per Se _does not apply if:_** Compliance is more dangerous than non- compliance Compliance is impossible under the circumstances

Question 87

Negligence: Duty of Care of owners/occupiers of land to trespassers ## Footnote **ATTRACTIVE NUISANCE DOCTRINE - CHILD TRESPASSERS**

Answer 87

Owner must take reasonable care to eliminate dangers on property or protect children from dangers if: 1. owner is **aware** or ***should be* aware** of dangerous condition 2. owner **knows** or ***should* know children** are in **vicinity** 3. condition **likely** to **cause** **injury** if encountered by children 4. because **children unable** to **appreciate** the dangerous condition 5. Magnitude of the **risk outweighs** its **utility** or **expense to fix**

Question 88

Negligence: Duty of those off Premises

Answer 88

**No duty regarding _natural_ conditions** _^{(exception for decaying trees next to sidewalks or streets in urban areas)}_ **No duty regarding _artificial conditions_**, *with major exceptions:* * Landowner liable for unreasonably dangerous conditions ^{(e.g. allowing water to run off roof and form ice on sidewalk).} * Duty to take due precautions to protect passersby, ^{e.g. erecting a barrier to keep people from falling into an excavation at the edge of the property.} * Duty to control conduct of others on his property to avoid unreasonable risk of harm to others off the property.

Question 89

Negligence: Duty of Care Licensees and Invitees

Answer 89

**Invitee:** an official relationship, i.e. a business customer or a visitor to a public building. * _Owed the highest duty:_ duty to exercise reasonable care, and take affirmative steps for P’s safety (i.e. in a nonfeasance case). **Licensee:** a social guest. * Owed _only the duty to warn of ***known***,_ ***_concealed_*** dangers. No requirement of reasonableness.

Question 90

Negligence: Duty of Care of owners/occupiers of land to trespassers ## Footnote **Unknown or Undiscovered Trespassers**

Answer 90

**NO DUTY OWED** ## Footnote *Only if UNKNOWN or Undiscovered. There is a duty owed to known or anticipated trespassers.*

Question 91

Negligence: Duty of Care of owners/occupiers of land to trespassers ## Footnote **ANTICIPATED TRESPASSERS**

Answer 91

**Owner** ***has reason to believe* trespassers on land.** **Activities**: *owner has duty of reasonable care in carrying out activities* on property **Dangerous Conditions**- owner has duty to *make safe* or *warn* of any * known, * concealed, * man-made or artificial hazards.

Question 92

Negligence: Duty of Care of owners/occupiers of land to **trespassers** ## Footnote **Exceptions**

Answer 92

No duty owed to Trespassers as general rule. Three exceptions: **_Known ^habitual Trespassers_:** duty to warn or make safe concealed dangers. **_Children_** **_(attractive nuisance)_**: When young children are attracted onto the land and a *dangerous condition exists* **^{(the condition need not be the attraction)}**, if: * Owner knows ^{(or should know)} \> children are in vicinity _{^{likely to trespass and encounter dangerous artificial condition,}} AND * Owner aware ^{or should be aware} of **dangerous condition** ^{(natural or artificial)} on her property * **Dangerous condition** likely to cause injury if encountere * ***Magnitude of Risk* _^outweighs _** *Expense or Utility of Fixing* the Dangerous Condition _​**Holders of Easements and Licenses**_ owe a duty of reasonable care to trespassers. *Employees and independent contractors do not.*

Question 93

Negligence: Breach of Duty: Res ipsa loquitur-requirements

Answer 93

The very occurrence of the accident's causing P's injuries suggests negligent conduct. *Arises if facts cannot establish breach of duty b/c circumstances surrounding event are unknown to P* **_P must show:_** * **Harm** _would not normally occur_ **_absent negligence_****_​_** * **Harm *normally*** results _from negligence by one in D's position_ * *^{​Often by showing injury-causing instrument in D's exclusive control}*_​_ * **Injury** was **_not attributed to P_**

Question 94

Negligence: Actual Cause "But For" Test

Answer 94

Establish a causal connection between the alleged breach of duty and the resulting injury. "But for" test- but for D's alleged breach of duty, P's injury would not have occurred.

Question 95

Negligence: Actual Cause Substantial factor test

Answer 95

**_Substantial factor test: for multiple causes of P's injury._** * D's breach is the actual cause if it was a substantial factor in bringing about P's injury. Used if **multiple causes** bring about P's injury and *_any one of them alone would have caused the injury_* ^{(fire start on D1's land and D2"s land, each of which spreads to P's land and destroys home)}

Question 96

Negligence: Actual Cause Burden shifting test

Answer 96

^{Burden shifting test} ***Burden of proving actual cause*** **_shifts to multple Ds_** * **^** if no D can prove another D was responsible \>\>\> all D's are jointly and severally liable. Used if **multiple D's act** ^{(often simultaneously)} only one causes P's in jury, but unclear which D caused injury. ^{(p hit by stray bullet at busy firing range. and its unknown which shooter hit P)} Note MBE may refer to actual cause as " cause in fact"

Question 97

Negligence: Proximate Cause, Generally

Answer 97

_**Causes** or_ **_Intervening Causes_** that are (any of following) * ***Foreseeable*** * ^{_{​Measuring stick for proximate cause.}} * ^{_{D is liable for the forseeable outcome of his conduct}} * ***Direct*** * ***Indirect*** Establishes that it is fair under the law to hold D responsible for P's injuries.

Question 98

Negligence: Proximate cause- Forseeability

Answer 98

Measuring stick for proximate cause. D is liable for the forseeable outcome ^{at TIME OF ACT}of his conduct

Question 99

Negligence: Proximate Cause Indirect/Intervening Causes

Answer 99

^{Indirect/Intervening Causes} **_D's conduct_** \> *CONTRIBUTING ACTS* **P's injuries** D's is usually liable if injury could have possibly resulted *_even without the intervening forces._*

Question 100

Eggshell plaintiff rule-define

Answer 100

D takes P as he finds him ***_D is liable_*** for the **_full extent_** of **P's injuries** **^{foreseeable or non-forseeable}** * Regardless of whether injuries are forseeable.

Question 101

Negligence Damages - Generally

Answer 101

**_P_ must _prove damages_** Damages are NOT PRESUMED in Negligence *Nominal damages **are not available.***

Question 102

Negligence Damages-types

Answer 102

**_Personal Injury:_** D must compensate P for all damages ^{(past, present and prospective damages)}. * Economic and non-economic damages are recoverable. **_Property Damage:_** * **Full cost of Repair** * **\>\> If Irreparable** -\> _full market value_ ^{at the time of accident ​​} **_Punitive_** - * ONLY IF D's conduct is * Wanton and Willful; or * Reckless; or * Malicious

Question 103

Negligence: Damages-non-recoverable

Answer 103

P **_can never recover_** Damages in Negligence Action for: * **Interest from the date of damage in personal injury cases** * **Attorney's fees.**

Question 104

Negligence: Damages-Duty to mitigate

Answer 104

P has a duty to take reasonable steps to mitigate damages.

Question 105

Negligence: Comparative Negligence (Comparative Fault)

Answer 105

D can establish that P's injuries are at least partially the result of P's own negligence. ^{Court apportions fault between P and D and reduces P's recoverable damages accordingly} **_Partial or Modified Comparative_** negligence- P can only recover damages if he was less than 50% at fault. **_Pure Comparative_** negligence- P can recover damages even if he was more than 50% at fault Note: defenses vary by state MBE questions usually note what defense applies: otherwise assume pure comparative negligence

Question 106

Negligence: Contributory Negligence (and Last Clear Chance Defense)

Answer 106

**_Contributory Negligence:_** P is barred from recovery if D establishes that P's negligence contributed to injuries. **_Last clear chance of defense_**- P can rebut D's contributory negligence claim by *alleging* _D had the last clear chance to avoid the injury_ that caused the accident.

Question 107

Negligence: Assumption of risk

Answer 107

D can deny P's recovery by establishing that P assumed the risk of damage caused by D's act. Requirements: D must show: * **P *Knew***OR **P** ***Should Have Known*** **_^{objective standard} _** the RISK * **P voluntarily proceeded in the face of that risk**. * ^{P can counter > there was no reasonable alternative to avoid injury}

Question 108

Negligent Infliction of Emotional Distress

Answer 108

P may recover for emotional distress resulting from D's negligence \>\>\>\> **_only if emotional distress_** = **_some physical manifestation._**

Question 109

Negligent Infliction of Emotional Distress-elements:

Answer 109

D's negligence **results in _a close risk of bodily harm to P_.** * P must be in "zone of danger" to recover, * ^{D's act must have early caused physical harm to P.} ​D's negligence results **_in P's severe emotional distress_** P exhibits **_some physical manifestation attributable to his emotional distress_** ^{(heart attack, miscarriage)} * Symptoms of physical manifestations can be **instantaneous** _or_ **appear days later**. * ^{Insufficient: Nonphysical symptoms like depression or nightmares}

Question 110

Negligent Infliction of Emotional Distress- bystander claims

Answer 110

bystanders may be able to recover for emotional distress resulting from D's negligence. **P must be** * Closely related to injured person * Present when injury occurred **D Must** * knew p was closely related and present * know that injured person was closely related to P **3rd Person must** * be seriously injured or killed

Question 111

Strict Liability: Strict liability is limited to cases involving

Answer 111

P can establish D's liability for P's injuries without proving D acted negligently. No amount of due care will relieve D of liability under strict liability. **Strict liability is limited to cases involving** * **Product liability,** * **animal conduct,** * **ultrahazardous and/or abnormally dangerous conditions.** ***Nature of D's activity imposes absolute duty to make safe*** **Causation**- actual and proximate cause (dangerous aspect of D's activity caused P's injury) **Damages** - to P's person or property

Question 112

Strict Liability: Prima Facie Case- Defenses

Answer 112

assumption of risk comparative negligence

Question 113

Strict Liability: Abnormally Dangerous Conditions - Elements

Answer 113

^{Abnormally Dangerous or ultrahazardous activities or conditions} **_Give rise to STRICT LIABILITY for ANY RESULTING INJURIES_** \_\_\_\_\_\_\_\_\_\_\_ **Requirements for proving abnormally dangerous condition or activity:** * ***Severe Risk of Harm*** to persons or property * ***Cannot be made safe*** ^{can't be performed w/o serious risk of harm; it will never be safe} * ***Uncommon*** in the ***Community*** * **^{Look for explosive toxic and/or biohazard materials}** * **^​Injury MUST RESULT from ABNORMALY DANGEROUS ACTIVITY** * ​Watch for fact patterns where abnormally dangerous conditions exist *but do not cause P's injury*. * ^{Example truck carrying toxic wast in sealed containers which fall and crash into P's car but do not spill. No strict liability b/c the abnormally dangerous nature of the containers did not cause P's injury}

Question 114

Strict Liability: Animal Conduct-Property Damage

Answer 114

Animal owners are strictly liable for reasonable, foreseeable, damage resulting from their animal's trespass on another's property. **_Wild Animals_**- have DANGEROUS PROPENSITY * **Strict Liability** owed * to **licensees** and **invitees** * for **unprovoked** injuries * caused **by their wild animals ^{any non-natural thing that escapes their property and harms neighbor}** **_Domestic animals_**- no strict liability unless owners know of their animal's unusually dangerous propensities (dog previously bit). *Trespassers cannot recover.*

Question 115

Merchant duties and definition

Answer 115

**Merchant = one who routinely deals in the product sold, including any merchant in the stream of commerce ^{(manufacturer rep, distributors, suppliers)} ** * Casual sellers, service providers are not merchants. **STRICT DUTY to supply SAFE Goods** **Merchants** *_{^{(must be Merchant)}} ***May DISCLAIM Warranties of Merchantibility** w/ specific mention of the "merchantability" or any language that would be reasonably understood by a buyer to exclude that warranty.

Question 116

Product Liability: Strict Liability- Elements

Answer 116

Elements of Strict Liability * **D is a MERCHANT** * **Defective Product:** * Defect must make product unreasonably dangerous. * Product **Unaltered \>** **since leaving D's control** * Product **Used _^{BY P} _**in a **Foreseeable Manner**. * ***P's misuse*** of the product ***can be foreseeable*** **_Who can SUE_** - _foreseeable users_ or _bystanders_. ^{(buyers, guests, family)} **_DAMAGES_** * ***P MUST BE*** ***INJURED*** (Physical or Property) * P CANNOT sue solely for *ECONOMIC* Damages.

Question 117

Product Liability: Types of product defects:

Answer 117

Manufacturing defect Design defect Inadequate warning Unavoidably unsafe product

Question 118

Product Liability: Manufacturing Defects

Answer 118

Product departs from intended design .... causing it to be more dangerous than designed. P **must show** that the product **failed to perform** as **safely** **as an ordinary consumer would expect**

Question 119

Product Liability: Design Defect

Answer 119

Product creates an unreasonable risk of danger due to its faulty design. P must show that a **hypothetical alternative design exists**... that is **_safer_** ... but has a **_comparable cost and purpose_**

Question 120

Product Liability: Inadequate Warning

Answer 120

**_Manufacturer_** failed to adequately warn of a non-obvious risk associated with a product's use. **_Manufacturer_** has a **duty to warn of foreseeable dangers from misuse of the product**. P must show that the **product has risks ....** that **cannot be eliminated by redesign**... and **consumers would not ordinarily notice**.

Question 121

Product Liability: Unavoidably unsafe products

Answer 121

If product **cannot be made safe** for **its ordinary use** ^{(chain saws, fire arms)} ...... **....Manufacture must give:** * **Proper instructions for use** * **Adequate warnings** of **known dangers** **​** **D not liable for *unforeseeable* ^{at the time the product was marketed}** ***risks***

Question 122

Product Liability: Negligence Theory vs. strict liability theory

Answer 122

P may establish liability for a product defect under standard negligence theory note a product defect is almost always easier to establish under a strict liability theory.

Question 123

Product Liability: Negligence Theory- elements:

Answer 123

**Duty of Care**- *each merchant in the stream of commerce owes a duty to all foreseeable product users and bystanders.* **Breach of duty-** D's negligence leads to the ***supplying*** of a defective product * retailers and wholesalers satisfy due care by a cursory inspection of the product ( makes it difficult to hold accountable) **Causation**: P must show _actual_ and _proximate_ cause. * Note: an intermediary's negligent failure to discover defect does not absolve upstream merchant of liability. **Damages**: P must show _physical_ injury or _property_ damage- ***economic loss alone is not recoverable*** **Defenses-** all standard negligence defenses are available.

Question 124

Product Liability: Implied Warranties

Answer 124

Implied in every sale of goods .... is a **warranty of _merchantability_** and **warranty of _fitness_** **_for a particular purpose_**.

Question 125

Product Liability: Implied Warranties- merchantability

Answer 125

Merchantability- seller warrants that goods are of average acceptable quality (without defects) and generally fit for their ordinary purpose

Question 126

Product Liability: Implied Warranties- fitness for purpose

Answer 126

Requirements: 1. seller knows or has reason to know the particular purpose for which buyer is purchasing 2. buyer relies on seller's skills or judgement 3. seller implies that goods are fit for that purpose ( shoe salesman- running show- expertise)

Question 127

Product Liability: Implied Warranties- who can sue

Answer 127

who can sue- all reasonable foreseeable users can sue for personal injuries arising from a breach of an implied warranty

Question 128

Product Liability: Implied Warranties- Defenses

Answer 128

Defenses: assumption of risk contributory comparative negligence

Question 129

Product Liability: based on Representation

Answer 129

D may be liable if a product falls short of an affirmative representation made to buyer

Question 130

Product Liability: based on Representation- elements

Answer 130

same as implied. 1. Warranty-existence of an implied warranty 2. Breach- product fails to live up to applicable warranty 3. Causation- actual and proximate 4. damages- personal, property and economic are all recoverable.

Question 131

Product Liability: based on Representation-defenses

Answer 131

Defenses: * assumption of risk * contributory * comparative negligence.

Question 132

Product Liability: misrepresentation of fact

Answer 132

seller liable for any misrepresentation made in the course of a sale if: 1. Seller made misrepresentation regarding **a material fact** concerning the **quality** or **use** of the goods 2. Seller **intended** to **induce reliance** by **buyer** 3. The **misrepresentation** induced **justifiable reliance by P**. *_No assumption of risk._* * Contributory negligence available if misrepresentation was negligent, not intentional.

Question 133

Nuisance define

Answer 133

Tortious invasion of either public or private property rights. Note- Nuisance is a harm caused by tort, not a tort itself.

Question 134

Nuisance- Private

Answer 134

**_a substantial, unreasonable interference_** with another individual's use or enjoyment of his/herproperty. **Substantial interference**- must be offensive, annoying or inconvenient _to the *average person in the community.*_ * *Interference is not substantial if P is hypersensitive or using property for a specialized, abnormal purpose.* **Unreasonable interference**-severity of P's injury must outweigh the utility of D's conduct

Question 135

Nuisance-Public

Answer 135

Unreasonable interference with **_health, safety or property rights_** of the community at large. Recovery is **only available to a private party if** she suffered ***unique damage*** not suffered by the public at large. Government usually brings public nuisance suits

Question 136

Nuisance - Remedies Available

Answer 136

money damages injunctive relief

Question 137

Defenses to Nuisance

Answer 137

**P cannot recover if he came to the nuisance (bought property next door) *for the sole purpose of bringing suit*** **Contributory negligence is available if** * P asserts a negligence theory * and * acted negligently in creating the nuisance

Question 138

Negligent hiring

Answer 138

A claim made by an injured party **against an employer** based on the theory that the **employer knew or should have known** about the **employee's background** which, if known, indicates ***a dangerous or untrustworthy character***. Pre-employment background checks, employee drug testing, and employment physical exams are some of the ways negligent hiring claims can be avoided.

Question 139

Vicarious Liability and respondeat superior

Answer 139

Arises when D commits a tort against P and a 3rd person is held liable due to his relationship with D * Employers are liable for torts committed by employees within the scope of their employment

Question 140

Respondiat superior for intentional torts

Answer 140

**_intentional torts usually outside the scope unless:_** 1. Job requires use of force (bouncers) 2. job entails creating friction (bail bondsman) 3. The intentional tort is done to further the employer's goals (Physically breaking up fight in store)

Question 141

Vicarious Liability-Independent Contractors

Answer 141

Employers are generally not liable for torts committed by independent contractors except for acts that are **_inherently dangerous**_ or _**duties that are nondelegable_**

Question 142

Partnership vicarious liability - liability for other partner

Answer 142

each partner is vicariously liable for any other partner's torts committed **_within the scope of the partnership_**

Question 143

Vicarious Liability-Parent/child

Answer 143

Parents are not liable for their children's torts, but parents may be separately negligent if they had reason to know of a child's propensity to injure or facilitate the tort

Question 144

Vicarious Liability-Tavernkeepers

Answer 144

Businesses serving alcohol may be held liable to a P injured by an intoxicated patron if the business was negligent in serving the patron Dramshop Acts

Question 145

Joint and several liability

Answer 145

arises if the acts of two or more Ds combine to produce a single indivisible injury. Each D is jointly and severally liable for the entire harm if his actions were a factor in bringing about P's injury Satisfaction- if P recovers fully from one D, she may not recover more from a jointly liable D **_D who pays more than her share of damages_** under joint and several liability can assert a claim against jointly liable parties for the excess paid. Not applicable to intentional tort liability Contribution is usually imposed in proportio to relative fault.

Question 146

False light - Elements/Definition

Answer 146

False light: * Publication of facts about P by D placing P in a false light in the public eye. * The “false light” would be objectionable to a reasonable person; and * If the matter is of public interest, D must have malice. False light is defined as attributing to P views she does not hold or actions she did not take. The right to privacy is personal. It does not extend to family members and is not assignable.

Question 147

False light - Exempt Types of D and Defenses

Answer 147

**Exempt Types of D** * The right to privacy is personal. It does not extend to family members and is not assignable. * Corporations have no right to privacy. **Defenses:** _Consent_. Some states require consent be in writing. Acts may not exceed scope of consent. Mistake as to whether consent was given (which in fact it was not), even if reasonable, invalidates the defense. _Privileges_: The privileges to defamation appear to apply to invasion of privacy as well.

Question 148

Intentional Interference with Prospective Economic Advantage

Answer 148

Protects the **probable**"expectancy" interests of **future contractual relations** of a party, ^{such as the prospect of obtaining employment or the opportunity to obtain customers} * **Economic relationship** between P and 3rd Party, * **Potential future benefit** arising out of the relationship, * D **knew** of the **relationship**, * **Action** or **Intent** to commit acts designed to disrupt the relationship, and * **Damages** caused by the Ds acts. **Note**: modern decisions have expanded this to protect such *_non-commercial expectancies as interference with an expected gift or legacy under a will._* ^{The tort of interference with prospective economic advantage protects the same interest in stable economic relationships as does the tort of interference with contract, though interference with prospective advantage does not require proof of a legally binding contract. The chief practical distinction between interference with contract and interference with prospective economic advantage is that a broader range of privilege to interfere is recognized when the relationship or economic advantage interfered with is only prospective.}