Strategies and Tactics Exam Review Flashcards
1
Q
In a suit by a consumer against the manufacturer, the plaintiff will be barred from recovering because
A
a manufacturer has no obligation to warn against obvious dangers. but the seller or manufacturer of a product is generally not liable for failing to warn against a danger that should be obvious to foreseeable users of the product.
That’s because “warning of an obvious or generally known risk in most instances will not provide an effective additional measure of safety.
2
Q
In a suit based on strict product liability, the manufacturer’s failure to warn of a danger can itself
A
make the product defective, and trigger strict liability for injuries caused by the defect. R3d Torts.
3
Q
What are the requirements of assault
A
Assault in a tort claim requires that the plaintiff become aware of the defendant’s attempt to inflict a harmful or offensive contact before the attempt has been terminated
The defendant is liable to the plaintiff for assault if (a) the defendant acts intending to cause a harmful or offensive contract with the person of the plaintiff or a third person, or an immediate apprehension of such a contact, and (b) the plaintiff is thereby put in such imminent apprehension. R2d Torts, 21.
4
Q
When does a plaintiff’s claim for assault fail
A
If the defendant intends to cause a harmful or offensive contact with the plaintiff, the defendant wont be liable for assault if the plaintiff learns of the threatened contact “after” the threat has “passed”
An attempt to inflict a harmful or offensive contact or to cause an apprehension of such contact does not make the actor liable for an assault if the other does not become aware of the attempt before it is terminated.
5
Q
Where the defendant’s negligence places one person at physical risk, what is the liability of the defendant to other parties
A
it is quite foreseeable that another person might come to the rescue, and the rescuer might be injured. So it is reasonably foreseeable that negligence by a manufacturer might lead to physical harm to a rescuer. when this happens, the negligence by the defendant is deemed to be the proximate cause of the injuries to the rescuer.
6
Q
An actor, whose tortious conduct puts the the actor or another at risk
A
is subject to liability to a third person who is injured while attempting to come to the aid of the actor or the other imperiled person.
In the leading case on the subject, in which Judge Cardozo famously wrote, “Danger invites rescue.” The cry of distress is the summons of relief.
It is foreseeable that a negligent design will cause a situation where a passerby might try to rescue inhabitants of rolled-over car and be injured during that attempt
7
Q
In a nuisance claim for interference with the landowner’s use and enjoyment of his property, the interference has to be
A
substantial and unreasonable. One who intentionally causes a substantial and unreasonable interference with another person’s use and enjoyment of the latter’s property without a valid defenses is liable for “private nuisance.”
8
Q
To prevail on a “private nuisance” claim, the landowner will have to make to major showings, which are:
A
(1) that the interference with his use and enjoyment of his property was “substantial and unreasonable”; and
(2) that the interference was “intentional” (unless he can show that the interference was negligent, reckless, or involved abnormally dangerous activity).
The impact on the landowner will be classified as “unreasonable” if the harm to him is “greater then he ought to be required to bear under the circumstances.”
The plaintiff in a private nuisance action must show that the defendant’s interference with the plaintiff’s use and enjoyment was either (a) intentional; (b) negligent; (c) reckless; or (d) stemming from an abnormally dangerous activity
9
Q
Under what circumstances will a plaintiff’s claim fail for a private nuisance action
A
Outside of the abnormally-dangerous-activity scenario, there is no nuisance liability for “unintentional non-negligent interference” with another’s use and enjoyment of land.
Once a defendant becomes aware of the negligent conduct, but continues to conduct themselves in the same manner, then the defendant’s actions become “intentional.”
Rather, it is enough that the defendant knows that the inference is either occurring or substantially certain to occur in the future, as a result of the defendant’s conduct.
10
Q
A statutory violation requires that you determine if the manner in which the plaintiff was harmed is
A
a result of the defendant’s violation of a statute that was meant to protect against this type of occurrence/injury to the plaintiff, and the plaintiff (accident victim) was within the “class” of persons the statute is designed to protect.
11
Q
A statutory violation will cause the court to
A
apply the doctrine of negligence per se. under the doctrine of negligence per se, if the defendant, without excuse, violated a criminal statute that was designed to protect against the type of accident that occurred, then the violation automatically constitutes negligence.
12
Q
what language on the MBE will give the candidate NOTICE that a negligence per se question is being asked?
A
The phrase “violation of a statute that was meant to protect against this type of occurrence” is the sort of formulation that should immediately cause you to be thinking about negligence per se.
Where an MBE fact pattern turns on a doctrine with an unusual and evocative name, examiners typically go out of their way to avoid explicitly mentioning that doctrine (res ipsa loquitor, negligence per se)
13
Q
If a question holds that the jurisdiction generally follows the rule that a person with a mental deficiency is held to the standard of a reasonable person, in a negligence action, what defenses may be available to the defendant
A
1- The plaintiff was a professional caregiver, who was aware of the defendant’s condition
2- The plaintiff was trained to care for patients with the mental deficiency
3- At the time of the incident, the defendant was delusional (thought she was being attacked)
This type of question focuses on the plaintiff’s “assumption of risk.”
14
Q
What is the assumption of risk doctrine
A
A plaintiff who voluntarily assumes the risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such.
15
Q
The assumption of risk doctrine is either
A
1- Implied, or
2- Expressed
16
Q
When is the implied assumption of risk applied to the plaintiff
A
Implied assumption of risk applies where a plaintiff (1) “fully understands a risk of harm caused by the defendant’s conduct, and (2) voluntarily chooses to encounter risk, “under circumstances that manifest the plaintiff’s willingness to accept that risk.
17
Q
A property owner is allowed to use what type of force to prevent or end a trespasser’s intrusion on his land
A
A property owner is privileged to use reasonable force to prevent or end a trespasser’s intrusion on his land. But a landowner exercising the privilege to defend his property is not permitted to use a level of force that is “intended or likely to cause bodily harm in excess of that which the owner correctly or reasonably believes to be necessary to prevent or terminate the other’s intrusion.
18
Q
What liability does a landowner have when he uses excessive force to prevent or end a trespasser’s intrusion on his land
A
The landowner is liable for “so much of the force as is excessive.” Consequently, the landowner will be liable for injuries which would have not occurred had he used appropriate level of force
19
Q
The assumption of risk can be a defense to what type of action brought by the plaintiff
A
The assumption of risk can be a defense to a “strict liability action” because the plaintiff assumed the risk of an accident like the one that occurred.
R2d 523: The plaintiff’s assumption of the risk of harm from an abnormally-dangerous-activity bars his recovery for the harm.
20
Q
In a strict products liability claim, a defendant that did not manufacture the or sell dangerous item would argue
A
The defense that defendant did not manufacturer or sell the dangerous item, and is therefore, not liable
21
Q
On the MBE make sure you distinguish between the different types of strict liability, such as between
A
1- Abnormally dangerous activity, and 2- strict products liability, which includes liability ONLY to the manufacturer or seller of the product
One of the requirements for classifying an activity as abnormally dangerous is that the activity cannot be carried out with perfect safety no matter how carefully the defendant behaved. So by definition, the fact that the defendant used state-of-art methods cannot be a defense
22
Q
When a person negligently causes an injury to another, the defendant is also liable for
A
The defendant is also liable for a second injury to the plaintiff, in which the second injury is a normal consequence of the initial injury.
So if the second injury is a “normal consequence” of the first injury, according to the R2d 460 “normal consequence test.”
The negligent actor is also liable for harm sustained in a subsequent accident which would not have occurred had the other’s condition not been impaired, and which is a normal consequence of such impairment.
23
Q
The saying that the defendant “takes the victim as he finds him” means that
A
a negligent defendant is responsible for the full extent of the plaintiff’s initial injuries, even injuries that stem from the plaintiff’s unusual “pre-existing” vulnerability. That is, “takes his victim as he finds him” refers to the so-called “thin skull” type of problem.
24
Q
What is the separability of injuries (also known as the “divisibility” of injuries
A
Is a doctrine that becomes signifiant ONLY when there are not only multiple injuries, but also multiple defendant–if the injuries can be allocated among the multiple defendant (i.e., the injuries are separable), then each defendant is liable only for those injuries that can be specifically attributed to that defendant’s fault.
25
In a scenario on the MBE, the defendant who causes the first injury will be liable for the plaintiff's second injury when
no matter how unforeseeable that second injury might have been as of the time of the defendant's negligence, so long as we can say after the fact that the second injury was a "normal consequence" of the first injury
26
What type of force is a landowner privileged to use to prevent an intrusion on his land
A landowner can be privileged to use even deadly force to prevent an intrusion on his land. However, such a use of deadly force is privileged "if, but only if, the owner reasonably believes that the intruder, unless expelled or excluded, is likely to cause death or serious bodily harm to the owner or to a third person whom the owner is privileged to protect.
27
What type of belief is not enough for a landowner to use deadly force or excessive force
if a landowner "genuinely" believes the intruder had a gun and might well use it, is not enough to permit the landowner to use deadly force: so the landowner's belief has to be "reasonable," not just genuine.
28
Where does the "no retreat rule" apply
The no-retreat rule only applies in a person's dwelling, which does not include the landowner's property (general land).
29
What is the "stand your ground" rule
Under which the defendant may sometimes defend himself from harm, even by the use of deadly force, and even if he could avoid injury by retreating.
30
If the force by the defendant is excessive, the defendant would have to convince the court that
The landowner could prevail if he could convince the court that no lesser amount of force would likely have sufficed.
31
Under what doctrine does a person have the right to enter another's land
A person has the privilege of "private necessity" to enter another's land, if that entry is or reasonably appears to be necessary to prevent serious harm to the person or his chattels.
If the person entering another's land under the private necessity doctrine, damages the land, the person will be liable for the damage, that's why the private necessity privilege is called an "incomplete privilege."
32
When a person enters another's land under the "private necessity" privilege, what is the duty of the landowner
The landowner is under a duty to allow the entry to continue until the danger had passed.
Under the doctrine of private necessity, the inclusion or exclusion of "no trespassing" signs is irrelevant.
33
What is the duty owed by a possessor of land open to the public
The duty to keep the premises reasonably safe, and this duty may not be delegated to an independent contractor.
A possessor of land owes such a duty of care, that duty cannot be delegated to an independent contractor who will do repairs, at least if the possessor (landowner) retains possession of the premises during the repair activity
34
In a defamation claim brought by political candidate must prove that the defendant
Either knew the statement was false or had serious doubts about whether it was true.
The Rule of Law: to require that the defendant acted either "with knowledge that the statement was false or with reckless disregard of whether it was false or not."
The Supreme Court has held that the First Amendment requires that a public figure, in order to recover for defamation, must prove that the defendant acted with more then mere negligence with regard to the truth or falsity of the defamation statement. So the plaintiff must show that the defendant made his statement with "actual malice."
35
How is "recklessness" defined for purposes of defamation claims brought by a public figure
The Supreme Court said, for recklessness, "there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication."
The Court also included, that "reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing."
36
what type of statement MAY NOT be the basis of a defamation claim
A pure statement of opinion may not be the basis for a defamation claim. Rather, the First Amendment requires that only statements that purport to be statements of fact may be made actionable.
37
A private claim for defamation brought by a non-public figure requires that
(1) required to prove that the accusation was false AND (2) that it was injurious to his reputation.
38
The instructions on the MBE tell you to assume that "joint and several liability, with pure comparative negligence, is the relevant rule unless otherwise indicated, so the approach to tort questions means that
if the fact pattern does not indicate otherwise, the key is to figure out how to apply the facts given in the question to (1) joint and several liability; and (2) pure comparative negligence
39
What is comparative negligence
is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff's own negligence contributed to cause the injury. When the defense is asserted, the fact-finder, usually a jury, must decide the degree to which the plaintiff's negligence versus the combined negligence of all other relevant actors contributed to cause the plaintiff's damages. It is a modification of the doctrine of contributory negligence which disallows any recovery by a plaintiff whose negligence contributed, even minimally, to causing the damages.
40
What is contributory negligence
Common Law Doctrine which disallows any recovery by a plaintiff whose negligence contributed, even minimally, to causing the damages.
41
What is joint and several liability
Under joint and several liability or all sums, a claimant may pursue an obligation against any one party as if they were jointly liable and it becomes the responsibility of the defendants to sort out their respective proportions of liability and payment. This means that if the claimant pursues one defendant and receives payment, that defendant must then pursue the other obligors for a contribution to their share of the liability.
Joint and several liability is most relevant in tort claims, whereby a plaintiff may recover all the damages from any of the defendants regardless of their individual share of the liability. The rule is often applied in negligence cases, though it is sometimes invoked in other areas of law.
42
When the MBE says pure comparative negligence applies, it means that
The plaintiff's recovery will be reduced "in proportion to the share of responsibility the fact finder assigns to the plaintiff.
43
When the MBE says joint and several liability, it means
that "the injured person (plaintiff) may sue for and recover the full amount of recoverable damage from any jointly and severally liable person.
44
When you have a jurisdiction that applies "joint and several liability" you must determine that the
conduct of two or more persons is a legal cause [proximate cause] of an indivisible injury, then each person is joint and severally liable for the recoverable damages caused by the tortious conduct
45
What effect does the doctrine of res ipsa loquitor have on the burden of proof
If successfully established, the burden of proof shifts from the plaintiff to the defendant. When there are multiple defendants, the res ipas loquitor doctrine allows the defendant's to come forward with an initial explanation of who was negligent.
46
Under the doctrine of res ipsa loquitor, the jury may
"infer that the defendant has been negligent when the accident causing the plaintiff's harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant member.
A reasonable jury could infer that this type of accident that does not ordinarily happen except as a result of negligence by someone among the defendants
47
Acting in concert refers to
"jointly engaging" in the negligent activity, so you need to show (evidence) that two or more defendants jointly acted negligently, and not the negligent conduct of a single actor (defendant).
48
What is "conversion"
is "an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control the chattel that the actor may justly be required to pay the other (actor-owner) the full value of the chattel
49
When does one form of conversion occur
When a person is initially legitimately in possession of the chattel, but then unjustifiably refuses to return it upon rightful demand by the owner.
50
What time period is generally permitted for a person to return a chattel, in which the person was lawfully in possession of
A brief delay in return--while, say the person makes reasonable efforts to figure out whether the chattel should be returned, which may be sufficiently unserious that it would have not constituted a tort or a mere trespass to chattels. But a delay of two full months, and the chattel declining in value during the delay, taken together are serious enough that it is fair to treat the delay as a "forced sale (i.e. conversion).
51
What is a forced sale related to conversion
it is the point that the convertor (person that did not return the chattel) as having "bought" the chattel for its market value as of the moment the true owner requested the chattel back
52
When can conversion occur?
1- Conversion sometimes occurs when the defendant initially and wrongfully takes dominion over a chattel. But the tort can also occur when the defendant initially comes into rightful possession of a chattel, and later wrongfully refuses to surrender it. So the fact that possession was originally lawful does not mean or give a defendant a defense for having later refused to return the certificate, when it lawfully should have been returned
53
At what point does the tort of conversion occur, when the defendant was originally lawfully in possession of the plaintiff's chattel
The tort of conversion occurs at the moment the plaintiff first rightfully demanded the return of the chattel. At the moment of demand and refusal becomes the "forced sale" of the time--which is the essence of conversion--occurred. Therefore, that's the moment as of which the market value of the certificate is to be computed.
54
A company or rental agency could only be liable for (what kind of harm)
harm proximately caused by its negligence, and failure to check for (a bomb) or something whose presence was not reasonably foreseeable, and is not negligent
55
An agency can be liable ONLY if the plaintiff proves two things:
(1) that the agency was negligent; and (2) that the negligence was a proximate cause of the plaintiff's injuries.
An agency has no duty to conduct an inspection, which is not custom in the industry, or that the agency does not have notice of an issue outside of industry norms.
Additionally, an Agency that does not intentionally conduct abnormally dangerous activities, would not be liable for an abnormal dangerous activity related to the Agency's business
56
Under the theory of liability, in order to determine if someone may or does have a valid claim, it is up to the candidate to find the answer choice that
Establishes how the plaintiff would satisfy his burden of proof that the error by the defendant was "the cause in fact." So it is up the candidate to figure out (the best answer choice), what theory of liability there could be to recovery.
Although there is some possibility of recovery under a strict product liability theory, the much more straightforward theory on these facts is one based on negligence.
57
Under the theory of res ipsa loquitur ("the thing speaks for itself")
permits the plaintiff to create an inference of the defendant's negligence without any direct evidence showing negligence.
58
What are the four requirements for res ipsa loquitur:
(1) there must be no direct evidence of how the defendant behaved in connection with the event; (2) the event must be of a kind which originally does not occur except through the negligence (or other fault) of someone; (3) the instrument that caused the injury must have been, at the relevant time, in the exclusive control of the defendant; and (4) injury must not have been due to the plaintiff's own actions.
59
The purpose of res ipsa loquitor does not require
a plaintiff to show evidence, the purpose of the doctrine is to eliminate the need for a plaintiff to provide direct evidence or why or how the accident or injury occurred.
60
The doctrine of res ipsa loquitor does not require the plaintiff to
negate the possibility that the defendant might not have been negligent. The plaintiff show that the event was a kind that "ordinarily" does not occur except through the fault of someone. But the plaintiff is not required to show that the vent couldnt possible have been due to a cause not involving the defendant's fault.
61
Common carriers (including airlines) are required to
exercise a very high degree of care toward their passengers and guests, which is to say they are liable for even slight negligence, but they do not have strict liability
62
An action in tort for negligence has four elements
(1) the existence of a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury; (2) breach of that duty by the defendant; (3) proof that the breach was the actual and proximate cause of the plaintiff's injury; and (4) damage to the plaintiff's person or propety.
63
The mere fact that there was some other at that the defendant could have taken--that would have prevented the injury, in a negligence claim, is
insufficient to make the defendant liable, that is other acts taken by the defendant, may have been enough to make the defendant's conduct non-negligent. Because the defendant probably had already met the standard of reasonable care, he would not be liable. For the victim to make a case in negligence against the defendant for the harm she suffered, she would have to show that he did not exercise reasonable care to protect her against injury.
64
When you are given a fact pattern in which the defendant has taken several reasonable steps to protect the interests of a plaintiff, and there is one step not taken, or other steps available do not ignore
Do not ignore the possibilities that the defendant's other protections and precautions failed to meet the overall standard of due care.
65
The storage and sale of firearms might be enough to make the seller liable under ordinary negligence principles, but not under the theory of
The sale of firearms is NOT an abnormally dangerous activities. One of the major factors in determining whether something is an abnormally dangerous activity is an "inability to eliminate the risk by the exercise of reasonable care." Locking up firearms securely is a way to eliminate at least the risk of theft and subsequent use in crime.
66
One of the major factors in determining whether something is an abnormally dangerous activity is an
"inability to eliminate the risk by the exercise of reasonable care."
67
Strict liability claims, as usually imposed, applies only against one who is
"engaged in the business of selling" the type of product involved. . A court almost certainly conclude that a creditor who reposed and item and sold it at auction is not "engaged in the business of selling" the particular chattel.
68
In a strict liability claim, the defect must be
the cause of the claim
69
When a plaintiff brings a strict liability suit, the fact that the defendant did or did not behave negligently plays what role in the suit
The defendant's failure to act or negligence, but it has NO bearing on whether there is strict liability.
70
A plaintiff's contributory negligence would not bar what type of tort suit
it would not bar a plaintiff from bringing a claim for strict liability
71
A private nuisance claim is based on
an unreasonable interference with another individual's use or enjoyment of his property. Since the interference with the plaintiff's use must be "unreasonable," the severity of the inflicted injury must outweigh the utility of the defendant's conduct.
72
When evaluating and determining a private nuisance claim you need to determine if the interference
outweighs the utility of the purpose
73
When a claim for private nuisance is brought what is the test for determining there is a valid claim
the plaintiff need ONLY show an unreasonable interference with the use of the land, not loss of market value.
Plaintiffs can win a nuisance suit by showing that the interference with their use and enjoyment of their property was substantial, there is no requirement that the value of the property have been reduced.
74
What is the degree of interference the courts use to evaluate a valid private nuisance claim
A plaintiff need only show an unreasonable interference with the use of his land. An occasional interference with a plaintiff's enjoyment of her property suffices, if the interference is substantial and unreasonable. There is no requirement that the interference be constant
75
trespass requires
an intentional entry onto the plaintiff's property, therefore an unintentional act, will negate a claim for trespass, or unauthorized entry onto the homeowner's land
76
Trespass requires at least
a suit based on ordinary negligence
77
So if you are given an example that the defendant driver skidded onto a landowner's property, OR entered a homeowner's property "intentionally" to avoid hitting a child or pedestrian, and the plaintiff brought a trespass claim, the defendant would argue
1- that the entry was not intentional because it was a result of the skid, and
2- If the driver intentionally chose to enter on the homeowner's property to avoid hitting the child or pedestrian, the doctrine of "private necessity" would supply a defense to the trespass claim.
Either way, the driver's conduct was not an intentional and unprivileged entry onto the homeowner's premises.
78
The doctrine of private necessity means that
the defendant entered the homeowner's land by necessity and DID NOT need the homeowner's authorization, and did not trespass. under the doctrine of private necessity if an entry was "unauthorized" is irrelevant
79
In order for a plaintiff to bring a claim for serious emotional distress
The defendant must have violated some independent duty to the plaintiff, so the homeowner would have to establish either that: (1) the driver committed the tort of negligence (in which case severe emotional distress in the absence of physical injury would not be a barrier to recovery, given the homeowner was in the "zone of danger"; or (2) the driver committed trespass.
80
The damages available for tort conversion is the
interference with a person's possessory rights in a chattel that is so serious as to warrant that defendant pay full value for the chattel
81
How do you distinguish in a fact pattern related to whether the owner's possessory rights were interfered with or an actual conversion under tort law
The facts state that the chattel was either slightly damaged or in need or minor repair, therefore, not a conversion. The facts state that the chattel was broken or no longer working, so we can take this as a serious interference as opposed to a minor one, and therefore, a conversion
82
Under the law governing conversion, if a defendant breaks the plaintiff's chattel, the defendant is responsible for what costs
The defendant is responsible for the full value of the chattel. In other words, the law of conversion applies the rule, familiar from retailing, that "you break it, you own it."
83
If a neighbor takes another homeowners chattel without permission and uses it to the homeowner's benefit, but the chattel breaks, the defendant neighbor is responsible
for the full value of the chattel. the fact that the neighbor was doing something ostensibly to benefit the homeowner would be deemed irrelevant--the homeowner certainly did not consent to the use
84
The essence of conversion is that the recovery of the value is based on the principal of a
"forced sale" of the chattel to the defendant, in other words, the plaintiff is entitled to full value of the chattel before it was taken not just the actual damage amount needed to return it to the condition it was in before the defendant took it.
85
The tort of conversion is the interference with a person's possessory rights in a chattel that is so serious as to warrant
that the defendant pay full value for the chattel. The owner is entitled to exclusive possession of his chattel.
86
What is the defense to conversion
the defenses of necessity applies the chattel was being used, for example, to save the owner's life in an emergency
87
What intent is not necessary to establish a claim for conversion
The intent to only temporarily, or not keep, the chattel, is not a necessary element in conversion
88
The defendant's temporary, but serious interference with another's chattel, in a way that causes substantial damage to the chattel, has
committed conversion, despite a defendant's intent to return of another person's chattel. Conversion is the intentional interference with a person's possessory rights in a chattel that is so serious as to warrant that defendant pay full value for the chattel.
89
Reports have privilege on stories they publish when
they make a fair an accurate report of events of a public proceeding. If a news story is a fair and accurate publication of the facts, the qualified privilege for reports of meeting applies, shielding the newspaper
90
The tort of invasion of privacy includes
public disclosure of private facts about the plaintiff by the defendant. A
91
A plaintiff must prove what two elements in bringing an invasion of privacy tort claim
(1) that defendant published private information about the plaintiff, and (2) that the matter made public is on that a reasonable person would object to have made public
92
A qualified privilege exists for accurate reports obtained at
(1) Public Hearings
(2) Meetings or Events of sufficient public interest
(3) A privilege exists to give a truthful accounting of facts disclosed at a public hearing, this privilege exists whether or not a speaker at a public meeting knows of the reporter's presence
93
The privilege to give a truthful report of matters discussed at a public meeting exists independently of whether the speaker (or the person on whose behalf the speaker spoke
Consented. The direct consent is not necessary for the story to be published
94
A negligence per se claim due to a statute can be the basis for a claim if the following four elements are met:
1. The statute provides for a criminal penalty;
2. The statute was formulated to prevent the kind of harm suffered by the plaintiff;
3. The plaintiff is a member of the class the legislature intended to protect with the statute; and
4. The statute is clear as to the standard of conduct expected, and from whom and when
95
Negligence per se has what effect on a claim?
Negligence per se ONLY means that the defendant CANNOT argue that his conduct was reasonable. It stops the defendant from arguing that his conduct was reasonable
96
What is a negligence per se claim
A violation of a statutory standard, as long as there is a criminal penalty, violation of the statute CAUSED the harm, the plaintiff was a member of the class intended to be protected, and the statute is clear in the standard of conduct expected
97
In order for a defendant to be negligence
the defendant would have failed to exercise such care as a reasonable person in his position would have exercised; this must have been a breach of the duty to prevent the foreseeable risk of harm to anyone in the plaintiff's position; and the breach must have caused the plaintiff's damages.
98
When determining causation, where there are multiple causes, the defendant can be liable
if his act was a "substantial factor" in causing the plaintiff's damages. Thus, while a continuing wrong that contributed to the neighbor's injuries could be the basis of a negligence claim where there are multiple causes
99
Under the specific fact pattern of a negligence per se determine if the plaintiff was or was not
an intended class to be protected by the statute
100
What is the exception to the rule of non-liability to trespassers
The most important exception to trespassers is that once the owner has knowledge that a particular person is trespassing on this property, the is then under a duty to exercise reasonable care for the trespasser's safety
101
What is the general rule for the MBE in regard to a landowner's duty to trespassers
The general rule is that a landowner owes no duty to a trespasser to make his land safe, to warn of dangers on it, to avoid carrying on dangerous activities on it, or to protect the trespasser in any other way.
102
In order for a trespasser or plaintiff to bring a negligence claim he would have
to prove that the defendant owed him a duty to protect the trespasser / plaintiff from injury
103
Under the MBE, If a landowner is unaware of a trespasser, and set a cause in motion due to the negligence of the landowner, the injured trespasser
will not be able to make out a prima facia case for negligence if the defendant-landowner was unaware of the trespasser's presence
104
In the MBE landowners have a right to engage in dangerous activities on their own land if
the owner does not know of the trespasser's presence, and the general rule is that a landowner owes no duty to a trespasser to avoid carrying out dangerous activities on his land that may injure the unknown trespasser
105
Under the general rule (on the MBE) that a landowner owes no duty to a trespasser to make his land safe, to warn of dangers on it, to avoid carrying on dangerous activities on it, or to protect the trespasser in any other way, but the EXCEPTION to the general rule is
that if a landowner knows a limited portion of his land is frequently used by trespassers, he must use reasonable care to make the presence safe
106
If an land owner knows of such frequent use by trespassers the owner will not be liable
unless he behaves without due care (e.g., by failing to warn of a known danger).
107
Without unreasonableness
there is no claim for negligence
108
If a rescuer comes to the rescue of someone's property, which is the property owner's negligence that created the rescue situation, the owner may have what type of duty
The owner may have a "moral" duty, but does not have a "legal" duty because the owner did not create the harm, and in order for the owner to be liable to the rescuer of the owner's property, the owner must have "breached some duty" towards the rescuer
109
Under the rescuer doctrine, the defendant cannot assert what defense
The "assumption of risk" doctrine, which does not apply when a rescuer reasonably believes that help is necessary, the rescuer can undertake to help without assuming any risk, (as long as the rescuer's acts are reasonable).
110
To establish a "prima facia" case for intentional reckless infliction of emotional distress, the following four (4) elements must be shown:
(1) an act by the defendant amounting to extreme and outrageous conduct; (2) intent on the part of the defendant to cause the plaintiff to suffer severe emotional distress, or recklessness as to the effect of the defendant's conduct; (3) causation; and (4) damages
111
The R2d of Torts requires that in order for a plaintiff to recover under a claim for intentional emotional infliction of distress, a defendant's conduct must be
the conduct must be "beyond all possible bounds of decency".
112
Under a claim for intentional emotional infliction of distress, what kind of behavior by the defendant does not satisfy the necessary conduct
whether or not the defendant had an intent is not relevant, given the possibility of reckless infliction of distress, the defendant's conduct has to be more then just mere intent, and if the defendant did not specifically intend to harm the plaintiff, the burden is not met
113
An element of a prima facia case for intentional or reckless infliction of emotional distress does not require that the plaintiff suffer a
physical injury; because physical injury is not an element of intentional or reckless infliction of emotional distress
114
Define the "reckless disregard" element in a claim under intentional infliction of emotional distress
the plaintiff must show that the defendant reckless disregarded both the possibility that plaintiff would be harmed, and the possibility that conduct might well cause the plaintiff distress; the plaintiff may win, if the "extreme and outrageous" standard could be met
115
Photographers do not have any privilege such as
special privilege exempting them from tortious conduct, in other words, if the taking and publication of a particular photo would be "extreme and outrageous" then the photographer would be liable
116
The negligence per se doctrine does not excuse the plaintiff from showing
the "causation" element, and in particular that the defendant's actions were the cause for the harm caused to the plaintiff.
117
If a defendant was found to have violated a statute under the negligence per se doctrine, but compliance with a negligence per se statute would not have prevented from occurring to the plaintiff
then the absence of compliance could not have been the "cause in fact" of the injury to the plaintiff, and the plaintiffs loses. Therefore, being either complaint or non-complaint with the statute could not have prevented the harm, the defendant is not liable under negligence per se
118
Negligence per se violation by the defendant does not make the defendant automatically liable, and the defendant will not be liable
unless the plaintiff shows that there is a causal link between the act constituting the violation and the resulting injury
119
What standard are ocean liners held to on the MBE
Common carriers like ocean liners are not held to the strict liability. It is true that common carriers are required to exercise a "very high degree of care toward their passengers and guests," which is to say they are liable for even slight negligence, but that is not the same as "strict liability."
120
The statutory safety requirement under negligence per se is intended to
protect a particular class of people who cannot protect themselves, courts are very hesitant to find that a member of that class assumed the risk of non-compliance.
121
The assumption of risk doctrine states
that a plaintiff has assumed a risk of a certain harm if she voluntarily consented to take her chances that harm would occur. Where such an assumption of risk is shown, the plaintiff is completely barred from recovery, but the harm is limited to the foreseeable harm under the circumstances
122
An action for battery has three elements
(1) the defendant's act bringing about a harmful or offensive contact with the plaintiff's person; (2) the defendant's intent to bring about such contact or to create the apprehension of immediate contact; and (3) causation
123
For a player-plaintiff in a sporting event to recovery for a claim for battery when the plaintiff alleges that the defendant struck and injured the plaintiff during the game
the plaintiff must prove that the defendant's intentional force exceeded the plaintiff-player's consent, and be an offensive contact constituting a battery
For the plaintiff-player to prevail in an action for battery he would have to prove an offensive contact.
124
What defense is available to a defendant-player when it is alleged by a plaintiff-player that the defendant injured the plaintiff during a game
The contact was roughness up to the level to which the plaintiff-player impliedly consented to and the intentional contact by the defendant was not harmful or offensive.
125
In a battery claim, consent would not a defense for the defendant if,
the defendant intentionally used more force than the consented-to level of force
Determine if the defendant "exceeded" the scope of the implied consent
126
What is apparent consent
Apparent consent is that which a reasonable person would infer from the plaintiff's conduct. For example, somebody who voluntarily engages in a body contact sport impliedly consents to the normal contacts inherent in playing it
If the opponent intended to strike the player, but in a way that was consistent with the play of game, then the player's consent would be found to be implied by his participation in the game and his use of the same tactics
127
When you have a battery claim that involves two sports players in which one player alleges that the opponent struck and injured the plaintiff, what is at issue is
Not the actual contact, but the "level of contact consented to by the players in the game."
What would otherwise be a harmful or offensive contact will not be actionable if it was consented. The mere fact that the opponent intended to cause, offensive contact that was consistent with the general game-play would not expose him to liability
128
If an defendant used more than the level of force to which a plaintiff would have be found to have consented, the defendant cannot assert the
implied consent doctrine, and the opponent could be liable
129
The law will not recognize a claim for damages of emotional distress incident to...
harm which negligently caused property loss ONLY. where the only injury or physical damage from the defendant's negligence is property damage, courts are unwilling to allow the plaintiff to recover for emotional distress at the property damage
The physical harm has to be "imminent bodily injury" from the negligence, not subsequent physical harm resulting from the emotional stress.
130
A plaintiff can recover for emotional distress when a defendant's conduct
where due to the defendant's negligence the plaintiff either suffers physical injury or narrowly avoids it, the plaintiff can recover for emotional distress, at least if it is accompanied by physical symptoms.
131
The law does not recognize a claim for damages for emotional distress when
incident to negligently caused property loss
132
When there is no immediate physical harm (bodily injury) to the injured party whose property was only damaged, a claim for emotional distress
will not be permitted to recovery, when there was no danger to the plaintiff of bodily injury, and his emotional distress is due solely to his being upset at the property damage, courts do not allow recovery even if there are physical symptoms from the distress
133
What are the appropriate damages when an intentional trespass occurs, in which the defendant enters the plaintiff's land continuously
A trespass occurs when the defendant enters the plaintiff's land, and when the trespass is intentional no harm to the plaintiff's land is required for recovery
134
Injunctive relief is an appropriate action in an intentional trespass claim when
The defendant's intentional trespass is ongoing and reoccurring
135
Compensatory damages are appropriate recovery for damages in an intentional trespass claim when
The defendant's intentional trespass is ongoing and reoccurring, and the defendant damaged the plaintiff's property
136
Punitive damages are an appropriate recovery for damages in an intentional trespass claim when
when the defendant's intentional trespass, as a repeated pattern of the trespasses, combined with the "pattern of harassment," demonstrates malicious intent and ill will
137
A trespass occurs when the defendant enters the plaintiff's land, and does not
require any harm to the land
138
Res Ipsa loquitur allows a plaintiff to create an inference of a defendant's negligence if the plaintiff can prove:
(1) there is no direct evidence of a defendant's conduct, (2) the event ordinarily does not occur except through the negligence of someone, (3) the instrument that caused injury was in exclusive control of the defendant, and (4) the injury was not due to the plaintiff's own action.
139
In a slip and fall claim in a grocery store, the plaintiff will need to prove
more then foreseeability. In addition to proving foreseeability, the plaintiff must also prove that the grocer fell below the standard of care of not behaving as a reasonable prudent person.
There must be a reasonable basis for concluding that the store employees were negligent in removing the split or item from the floor that caused the slip and fall. Consider (argue) that the spill or banana peel may have fallen seconds before the customer fell
140
In a failure to warn theory, a pure question of law is determined by the
Judge, of whether a defendant who is selling dangerous substances have a duty to warn of their dangerousness if that dangerousness is unknown at the time. Generally, the defendant should be held to the standard of a prudent manufacturer who knew of the risks, regardless of whether the risks were reasonably discoverable before the initial discovery (after use) because "if and only if" the defendant is held to a duty to warn of these not -yet-known dangers can a reasonable jury possibly find that the defendant is liable for failing-to-warn
141
In a failure to warn claim, the existence of a satisfactory alternative is
simply not relevant to the claim
142
One of the first things to determine on the MBE when you are faced with a fact pattern for "failure-to-warn" is whether
the issue needs to be addressed by the court as a matter of law or matter of fact by the jury
143
The concept of "inherent dangerousness," to the extent that it's relevant in a product-liability suit, generally refers to the issue of
"Unavoidable danger," that is, if a product has some social utility, and is "unavoidably dangerous" (or as it is sometimes put, "inherently dangerous"), the defendant may be able to argue that the product is not "defective."
That's because the idea of a "defect' involves something that is "wrong" and needlessly dangerous, and something that is unavoidably hazardous does not meet this standard
144
In order to create liability for a defendant, any violation of a state statute must be the result
of an intentional act by the defendant. therefore, an unforeseeable unintentional act by the defendant will not make the defendant liable. Therefore, being unconscious during the statutory violation, is not a voluntary violation, and the negligence per se doctrine would not apply
There must be "direct" evidence that the defendant failed to exercise due care. If there is no direct evidence that the defendant failed to exercise due care, under ordinary negligence principles, the court would clearly have to find, as a matter of law, that no reasonable jury could find the plaintiff liable for negligence.
145
The doctrine of res ipsa loquitur do not generally occur with car accidents because of at least two impediments
(1) it cannot be said that car accidents generally do not happen in the absence of negligence by someone (which is why res ipsa is rarely applied in car accident cases); and (2) even if res ipsa applied, it would merely entitle the plaintiff to get to the jury (i.e., supply enough evidence of negligence that a jury could properly find negligence), not entitle the child to a directed verdict on negligence (i.e., supply such incontrovertible evidence of negligence that the judge would conclude that no reasonable jury could find that there wasnt negligence)
146
The standard for issuing a directed verdict against a plaintiff there
that there is at least one element of plaintiff's prima facia case that no reasonable jury could find to have been proved or satisfied
147
Abnormally dangerous activities trigger
Strict liability, and only the person carrying out the ultra hazardous activity has strict liability
148
An engineer does not become liable for a design defect merely by including
someone else's defect in the engineer's blueprint, absent an affirmative requirement to review or inspect those other parts of the engineer's blueprints, there is no liability
149
When is joint and severally liability assigned
Where two or more tortious acts combine to proximately cause an "INDIVISIBLE" injury to a plaintiff, each tortfeasor is jointly and severally liable for that injury
150
If a plaintiff sues an engineer personally, it means that
it does not matter whether the engineer was an independent contractor or not. Had the plaintiff sued a corporation, then the engineer's status might be relevant to determine liability to the company
151
A duty of disclosure only arises where,
there is a specific query about the matter, there is a special (fiduciary) relationship exists, or there are other circumstances requiring disclosure (e.g., half truth, subsequent information that makes prior statement misleading, or knowledge of undisclosed facts basic to a transaction.
152
The qualification requirements of misrepresentation are:
1- Defendant's misrepresentation of a material past or present fact;
2- Defendant's knowledge of falsity or reckless disregard for falsity;
3- Defendant's intent to induce plaintiff's reliance;
4- Plaintiff's actual, justifiable reliance; and
5- Damages
153
The general rule is that misrepresentation requires some form of active concealment beyond mere silence. Exceptions to this rule include:
1- An affirmative duty to disclose (due to half-truth, subsequent information making the prior statement misleading, or knowledge of undisclosed facts basic to a transaction
2- A specific query about the matter; and
3- Existence of a special (e.g., fiduciary) relationship between the parties
154
Third parties can recover for emotional distress, where someone else is intentionally physically harmed if:
1. They are present fro the physical harm;
2. They are closely related to the injured person;
3. The actor knows of the third party's presence, and must be able to reasonably anticipate the third party's distress that will result from the actor's conduct AND
4- It is NOT necessary that the defendant-actor's conduct be extreme and outrageous with respect to the third party
155
In order for a third party to recover for emotional distress where someone else is intentionally harmed, where does the third party need to be in relation to the actual physical harm occurring to another person
It is not the third party's fear for his own safety that determines liability, but his reaction to the harm inflicted on the victim. Thus while his presence will be necessary, he DOES NOT need to be in the "zone of physical danger" to recover.
156
An invitee is a person
who enters onto the premises in response to an express or implied invitation of the landowner.
157
What is the duty that a landowner or corporation owes an invitee
The landowner owes the invitee a general duty to use reasonable and ordinary care in keeping the property safe for the benefit of the invitee. That includes the duty to inspect for and correct hidden dangers and defects.
158
A protruding fixture does not establish a landowner-defendant failed to use due care to protect an invitee because
The fixture may have been necessary to the functioning of the room (emergency room), and there may have been nothing that could reasonably have been done to make it safer for one who happened to faint, fall, or bang into it.
159
A protruding fixture upon inspection may show that
the shape and or size posed an unreasonable risk to an invitee, once which could have been easily corrected by, say, the use of padding.
160
When you have a fact pattern that indicates a injury to the plaintiff, you must determine
1- the status of the injured party, such as trespasser, invitee, licensee, etc.
2- was the harm unreasonable under the circumstances
161
A common law claim for defamation has four (4) requirements:
1- Defendant's defamatory statement;
2- Of and concerning the plaintiff;
3- Negligently or intentionally communicated to at least one third person, and
4- Plaintiff's reputation damaged thereby
162
A qualified privilege applies when
when the statement bears some relationship to a public or private interest, or either the publisher, the reader/listener, or both, or of the general public. If the statement is in furtherance of the interest, it's protected, and it can only be destroyed by malice
163
In order to defeat a defendant's claim of a qualified privilege in defamation case, the plaintiff would have to prove
the defendant made the statement and the statement was "a knowing falsehood or reckless disregard for the truth". Thus, merely proving that the statement was "false" would be insufficient: The plaintiff would have to prove the defendant "knew" it was false or recklessly failed to determine if it was true or false.
164
In a defamation claim, if the defendant is a "non-media defamer," without a qualified privilege, the
defendant would have to be "negligent" in order for the plaintiff to recover. In addition, some degree of fault will have to be proven
165
A claim under strict product liability for improper design creates liability on the product's manufacturer because
As long as the product was dangerously defective (1) when it left the manufacturer's control, (2) the manufacturer was in the business of selling the product, and (3) the product did not substantially change between the toy company and the injured user.
166
If a fact pattern states that a company was "held liable for a defective design" of another a 3rd party, this means that the plaintiff's claim must be
for "strict liability"
167
In a negligence claim for a product liability claim, the parties will
ONLY be held liable for its own negligence
168
Indemnity applies to strict liability in such a way that
subsequent suppliers can seek indemnity from those before them in the supply chain, so that whoever was responsible for the defect is ultimately liable for it.
169
How the indemnity operates:
The secondary tortfeasor pays a judgment due to the tort of the primary tortfeasor. The secondary tortfeasor can seek "indemnity" from the primary tortfeasor.
170
Joint tortfeasors are
tortfeasors who act "in concert" with an express or implied agreement to produce a result
171
Under joint liability, traditionally
each defendant is liable for al the damages. (however, many states modify joint liability so that a negligent joint tortfeasor who pays a judgment can recover pro rata shares from other joint tortfeasors
172
A designer and manufacturing company are what kind of tortfeasors, in determining liability when a claim is brought for improper design?
They are primary (designer) and secondary (manufacturing company) tortfeasors. The designer and manufacturer are NOT "acting in concert" because it was the designer's improper design that created the risk
173
In indemnity claims, the fact pattern will indicate that there is
a preexisting relationship between two parties whereby the burden of a judgment will be shifted from a secondary to a primary tortfeasor, such as: employer-employee; designer-manufactuer
174
Failing to do a "reasonable inspection" by of a product (designed by a third party) indicates that
Normally, that the failure to do a reasonable inspection would be a negligence claim against the manufacturer, and in that case if the claim was for negligence the secondary tortfeasor will not be able to recover from the primary tortfeasor for indemnity
175
A claim for private nuisance is valid when
a defendant unreasonably interfered with the plaintiff's use and enjoyment of his property. also a landowner who causes a "substantial, unreasonable" interference with a neighbors use or enjoyment of his property without a valid defense is liable for private nuisance
176
One of the elements NOT required to bring a claim for private nuisance
It does NOT require the defendant's desire to affect the plaintiff's use, therefore, the interference does not have to be intentional
177
When dealing with a private nuisance claim for interfering with a property owner's use, the court will decide whether
the interference was "unreasonable," and in other words, whether the benefit to the land by the interference was reasonable or purposeful, and the non-use and enjoyment was very small
178
The tort of nuisance covers BOTH the
"use" and "enjoyment" of the land, not just use OR enjoyment, the interference has to be both
179
A landowner who causes a substantial, unreasonable interference with a neighbor's use or enjoyment of his property without a valid defense is
liable for private nuisance
180
Many nuisances are not in violation of any particular law, since "positive law" (statutory, ordinances, and the like) do not purport to be the sole source of legal obligations, therefore, a
factory might get all the required local permits, but might still be a private nuisance because it's unreasonably loud and noisy
181
The R2d of Torts 373(1) holds that a prior landowner can be liable when
A vendor (seller) or land who has created or negligently permitted to remain on the land a structure or other artificial condition which involves an unreasonable risk of harm to others outside of the land is "subject to liability to such persons for physical harm caused by the condition" after his vendee has taken possession of the land.
Under R2d 373(2), except in the case where the vendor knowingly conceals the defect, the vendor's liability under R2d 373(1) continues "only until the vendee has had reasonable opportunity to discover the condition and to take precautions".
182
When an MBE fact pattern or answer choice includes the word "defective" it means that the
That "strict liability" applies and not negligence, and you need to determine if the individual is the type of person or situation that raises to strict liability.
183
Strict liability does not apply to
Landowners. Strict liability applies ONLY in the case of ultra hazardous activities and sales of "products." When landowners sell real estate, courts normally do not apply strict product liability. The refusal to apply strict product liability is especially likely where the seller is an "amateur" seller (i.e., one not in the business of selling real estate).
184
The defense that a previous owner (seller of a home or building) no longer occupied the property is generally,
not a valid defense, if the seller negligently failed to notice and correct the danger to persons outside the property, and the buyer hadn't yet had a chance to discover and fix the problem.
185
The assumption of risk doctrine ONLY applies
when a person knew of the risk and "voluntarily" exposed the themselves to the risk. the doctrine does not apply when someone only knew that something happened occasionally in the past because of negligence, does not raise to the level of assumption of risk
186
A plaintiff can only prevail in a negligence claim only if she proves that the defendant's negligence was
The cause in fact, as well as the proximate cause, of the plaintiff's injury. A claim asserted for negligence must show that the failure to take other or certain action was, more probably than not, the cause in fact (but-for-cause).
The only way this could be true is if the plaintiff shows that such the other action would, more likely than not, have led to the reasonable prudent conduct.
The plaintiff must assert the required causal link between the asserted negligence and the bad outcome
187
A defendant will not be liable for negligent conduct when
the defendant's negligence failed to contribute to the bad outcome, and you need more than a conclusory statement or "but for" factual allegation
188
A defendant will be liable if his negligence was
a "cause-in-fact" of the bad outcome
189
In order to be jointly liable in a negligence tort claim, the plaintiff must prove that
the parties acted in "concert,"
190
A claim for indemnification is permitted
under indemnity the secondary tortfeasor, who is without any fault, can seek payment for any judgment he pays due to the tort of the primary tortfeasor
Under indemnity, the burden of a judgment is fully shifted from a secondary tortfeasor to a primary tortfeasor
191
"Several" liability is
where damages are divisible on a logical basis between tortfeasors, based on the damages each one caused--and each one must pay his share of the damages.
192
Indemnity applies
Indemnity applies where a secondary tortfeasor pays a judgment due to the tort of a primary tortfeasor
193
In joint liability, two or more tortfeasors act "in concert " (with an express or implied agreement) to produce a result. The damages
must be "indivisible" between tortfeasors, and under traditional joint liability each defendant is liable for all the damages, however, many states have modified this with the rule of "contribution," whereby a negligent joint tortfeasor who pays a judgment can recover pro rata shares from other joint tortfeasors
194
Under several liability, the damages
the damages are "divisible" on a logical basis between tortfeasors, based on the damages each caused.
195
Once you are told the facts on the MBE that defendant was negligent, then the defendant
is liable for any damages flowing from that negligence. the damages the defendant caused by his negligence--for which he will be liable -- are part of the loss or damage that would have been prevented had the negligent act not occurred
196
Due to a defendant's negligence, the defendant will be liable for
The defendant will be liable for all damages flowing from his act. thus, the part of the plaintiff's loss or damages that would (have been prevented) or not occurred is a direct result of the defendant's negligence, since it would not have occurred "but for" the defendant's negligence
197
To establish a prima facia case for invasion of privacy by appropriation of a plaintiff's picture or name, only one element needs to be proved:
That there was an unauthorized use by defendant of plaintiff's picture or name for commercial advantage.
198
In an invasion of privacy by appropriation of a plaintiff's picture or name determine the
scope of authorization given, and if the authorization is limited to a single picture to a photographer
199
Public figures retain what rights in regard to their pictures and likeness
Public figures retain the right NOT to have their image utilized for commercial advantage
200
In an invasion of privacy by appropriation of a plaintiff's picture or name the enjoyment of a product does
NOT convey the rights to commercial use of an image
201
When you have a fact pattern dealing with a "day care" center, in order for the day care center NOT to be liable for negligence, the day care center had to exercise
there was a "reasonable number of qualified personal" that exercised "reasonable care" to ensure the safety of the children, and in this context, the day care center did not violate its duty of care, even though the child was injured
202
Day care centers and schools are held to what standard of liability
Day care centers are held to a negligence standard for injuries to children under their care, and will NOT be held to a strict liability standard.
Day care centers, generally, are not negligent if the center is close to an attractive nuisance.
203
Jointly and several liability addresses the
divisibility of damages between multiple tortfeasors. so when the percentage of the rancher's liability each defendant cause hasnt been determined, so they'll be jointly and severally liable.
204
Joint liability applies when the damages are
NOT divisible between tortfeasors, making each tortfeasor liable for all the damages (some states apply the rule of contribution to negligent joint tortfeasors, such that a negligent tortfeasor who pays a judgment can recover prorata shares from the other tortfeasors
205
A negligence claim requires proof that a defendant
that a defendant failed to exercise such care as a reasonable person in his position would have exercised; this failure must have been a breach of the duty to prevent the foreseeable risk of injury to anyone in the plaintiff's position; and this breach must have caused the plaintiff's damages.
206
The rule used to determine causation depends on
How many causes there are: A single cause involves the "but for" test, and multiple causes involve the "substantial factor" test.
207
where there are multiple factual causes, that resulted in the plaintiff's damages, the plaintiff need ONLY prove that
an individual defendant's act was a "substantial factor" in causing the plaintiff's damages.
208
Common law defamation has four elements:
1- The defendant's defamatory statement; AND
2- Of and concerning the plaintiff; AND
3- Negligently or intentionally "published" to at least one third person; AND
4- The plaintiff's reputation damaged thereby.
In addition, the plaintiff will have to prove some level of fault, depending on his and the defendant's status (e.g., media, public figure); furthermore, if the statement was slander and not within a "per se" category, the plaintiff must prove "special" (pecuniary) damages.
209
What are the "slander per se" categories: (which is not libel) and the four slander per se categories are:
1- Reflecting adversely on business/profession, or
2- Imputing a foul and loathsome diseases; or
3- Moral turpitude crime; or
4- Lack of chastity in a woman;
210
Such damages that from flow from "special damages" from a common law defamation claim are
Lost of job, inheritance, gift, customers, and the like
211
Such damages that flow from "general damages" from a common law defamation claim are
cover things like damage to reputation or personal relationships, and mental anguish
212
Slander not within the four "per se" categories is the only type of defamation requiring proof of
Special damages for the purchaser
213
A statement can be defamatory without having to be the result of
extreme and outrageous conduct, and the conduct can be extreme and outrageous without satisfying the elements of defamation.
214
Normally, non-media defamers can only be liable if they are
negligent (as opposed to media defamers, where malice must be proven, or where a qualified privilege exists due to a special interest of the defamer, or the general public.)
215
When a plaintiff has to prove "malice" in a defamation case, what other proof will suffice
Even if the purchase has to prove malice, "reckless disregard for the truth would suffice"; the plaintiff would NOT have to prove the defamer "acted knowingly"
216
The defense of "defense of others" would be negated if
the defendant's belief about the danger to the plaintiff was unreasonable
217
When a defendant has intentionally caused a harmful or offensive contact with another, the defendant is liable for battery, unless
the defendant has a defense.
218
The only defense that is plausible when a defendant uses intentional harmful or offensive contact in order to prevent a plaintiff from being harmed is
"the defense of others" That is that the defense of others requires that both the actor's (defendant) belief that danger exists, and his (defendant's) belief that the proposed conduct is a good way to deal with the danger, be reasonable.
If in fact, the defendant, SHOULD have realized that the plaintiff was not in fact in danger, and the defendant caused harm to the plaintiff, then this requirement for the defense-of-others would not exist
219
When a defendant asserts the "defense of others" defense, what effect does "alternative methods of dealing with the situation" have on the defense
because the fact that an alternative method of dealing with the danger might have solved the problem does NOT automatically mean the defendant's method in the defense of the plaintiff was unreasonable
220
In order to negate the "defense of others" defense
the defendant's choice of methods to prevent the harm, or his belief in the plaintiff's peril, was "unreasonable." the mere fact that an alternative method might have solved the problem does not mean that the defendant's approach was unreasonable
221
A defendant's "intent" to save a plaintiff from harm would not immunize the defendant if his
"intent and belief" was unreasonable
222
A defendant only qualifies for the defense of "defense of others" when
in the defendant's belief in the existence of the danger, and this choice of methods, were reasonable
223
When a plaintiff brings a claim against the defendant in tort, the plaintiff's claim will fail if
the plaintiff cannot prove the defendant actually caused the alleged harm to the plaintiff, and if the plaintiff can at best introduce facts that raise a "mere suspicion" the claim will fail
224
When a plaintiff brings a claim against the defendant in tort, the plaintiff's burden
A plaintiff bears the burden of proving by a preponderance of the evidence that a defendant actually caused the injury, just as he must bear the burden of proving the other parts of his prima facia case
225
A defendant's argument against a plaintiff's claim is better off making a
much more general argument that the plaintiff is required to make an affirmative showing that the defendant's negligence caused the harm to the plaintiff, and that the plaintiff has failed to carry this burden by a preponderance of the evidence
226
Defense of property is a defense to an intentional tort--one may use ONLY
reasonable force to prevent trespass, or other interference with one's land or chattels. However, deadly force (i.e., force that is likely to cause death or serious bodily harm) cannot be used except to prevent an intrusion that is likely to cause death or serious injury to the inhabitants.
227
What standard is judged when a property owner uses force by means of a automatic mechanical device
The case is judged by the same standards as if the owner were acting directly. Consequently if a live person in the owner's position would not reasonably have believed that the intruder posed a serious risk of death or serious injury to the inhabitants, use of deadly force mechanical device would not be privileged.
228
When determining force used against a trespasser, always determine whether
the trespasser posed a threat of death or serious injury to the inhabitants
229
Deadly force cannot be used against a non-dangerous trespasser, even if
a Warning Sign is posted
230
What is the exception for when a negligent tortfeasor may be liable for the criminal acts of a third party
When a tortfeasor should have realized the likelihood of a crime at the time of the defendant's negligence, he may be liable for the criminal acts of a third party.
The issue of foreseeability is generally a question for the jury, so we must look closely at the facts.
231
In a negligence claim what kind of evidence must the judge have in order to take the issue of negligence away from the jury
The issue of foreseeability is generally a question for the jury, so we must look closely at the facts, if the defendant was negligence
So, the evidence must be "overwhelming" for the judge to take the issue away from the jury by granting a summary judgment for either party.
232
While normally a negligent tortfeasor will not be liable for the criminal acts of a third party, an exception exists, which is
When a tortfeasor should have realized the likelihood of the crime at the time of his negligence, he may be liable for the criminal acts of a third party.
Was the defendant on notice that "this was a high-crime neighborhood" and there has been many thefts"
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A claim for negligent misrepresentation, the defendant
the defendant's mental state must be negligent, the defendant must have made the statement during the course of his business and with a pecuniary interest in the transaction, and the plaintiff must be a person or member of a limited group that the defendant intended to reach or who the defendant knows a recipient of the information intended to each.
234
Even if the elements of negligent misrepresentation are met, recovery for negligent misrepresentation is
usually limited to pecuniary loss unless it involves a risk of physical harm, and a claim for "emotional distress" standing alone, is not sufficient to assert a claim for negligent misrepresentation
235
If a defendant's statement makes a prediction, without factual information, then the claim will almost always
if a defendant predicts something will happen it will almost always be held to be merely an unactionable opinion. So you need to determine if the defendant misrepresented some factual information
236
In order for a plaintiff to recover for a misrepresentation claim, the plaintiff must
a plaintiff must show that he relied on the misrepresentation and that his reliance was justifiable.
237
In order for a plaintiff to recover for a misrepresentation claim, the plaintiff must have justifiably relied on the misrepresentation AND had
sustained appropriate damages. Recovery for negligent misrepresentation is usually limited to pecuniary loss unless it involves a risk of physical harm.
238
Negligent misrepresentation does not extend to
all foreseeable damages, such as emotional distress
239
What type of physical contact is permissible
1- consent (given the party can consent)
2- ordinary touches that are part of life in crowded society, which are neither unreasonable nor inconsistent with ordinary social norms privileging such contacts
3- determine if defendant's touch was "neither unreasonable nor inconsistent with ordinary social norms privileging such contacts.
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Ordinary touches that are part of life in crowded society are a defense to
a claim for battery or negligence
241
An assault is
the intentional causing of an apprehension of harmful or offensive contact . A plaintiff would have to prove that she was about to be touched
242
What negates the defense of "Ordinary touches that are part of life in crowded society"
If the plaintiff gives an indication that put the defendant on notice that she does not want to be subjected to the ordinary touches that are part of life in crowded society, and therefore, withdrew consent to ordinary touches
In the absence of such an indication from him or her, the passenger was entitled to believe that she implicitly consented to a light tap to get her attention
243
Intentional Torts, such as battery, assault, intentional infliction of emotional distress DO NOT consider what element of the defendant's conduct
The "reasonableness" of the defendant's conduct because a battery is the "intentional" infliction of harmful or offensive bodily contact. Consequently, whether the defendant's conduct was reasonable under the circumstances is irrelevant if in fact the defendant intended to make a harmful or offensive conduct with the plaintiff.
Thus, reasonableness would ONLY be relevant in a negligence action BUT not in a battery action
244
Intent is an issue
In a battery claim, battery is the intentional infliction of a harmful or offensive bodily contact. Consequently, the plaintiff must establish the defendant's intent to cause contact with the plaintiff
245
In a Battery claim the plaintiff must prove that some sort of
bodily contact occurred, and the issue is whether "smoke" is a bodily contact.
246
Once a plaintiff establishes that a "contact" occurred for a claim under battery, the plaintiff must prove that
must establish that the contact was "offensive"
247
Punitive damages are not recoverable in what types of claims
punitive damages are not available in ordinary negligence cases.
248
A plaintiff may be able to recover for punitive damages in what types of claims against the defendant
1- Intentional torts, such as assault or battery, and
2- punitive damages may be available to victims of reckless conduct by the defendant
BUT, punitive damages are not recoverable for "ordinary negligence cases"
