Strategies and Tactics Exam Review Flashcards Preview

Torts > Strategies and Tactics Exam Review > Flashcards

Flashcards in Strategies and Tactics Exam Review Deck (248)
Loading flashcards...

In a suit by a consumer against the manufacturer, the plaintiff will be barred from recovering because

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.


In a suit based on strict product liability, the manufacturer's failure to warn of a danger can itself

make the product defective, and trigger strict liability for injuries caused by the defect. R3d Torts.


What are the requirements of assault

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.


When does a plaintiff's claim for assault fail

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.


Where the defendant's negligence places one person at physical risk, what is the liability of the defendant to other parties

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.


An actor, whose tortious conduct puts the the actor or another at risk

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


In a nuisance claim for interference with the landowner's use and enjoyment of his property, the interference has to be

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."


To prevail on a "private nuisance" claim, the landowner will have to make to major showings, which are:

(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


Under what circumstances will a plaintiff's claim fail for a private nuisance action

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.


A statutory violation requires that you determine if the manner in which the plaintiff was harmed is

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.


A statutory violation will cause the court to

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.


what language on the MBE will give the candidate NOTICE that a negligence per se question is being asked?

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)


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

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."


What is the assumption of risk doctrine

A plaintiff who voluntarily assumes the risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such.


The assumption of risk doctrine is either

1- Implied, or
2- Expressed


When is the implied assumption of risk applied to the plaintiff

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.


A property owner is allowed to use what type of force to prevent or end a trespasser's intrusion on his land

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.


What liability does a landowner have when he uses excessive force to prevent or end a trespasser's intrusion on his land

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


The assumption of risk can be a defense to what type of action brought by the plaintiff

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.


In a strict products liability claim, a defendant that did not manufacture the or sell dangerous item would argue

The defense that defendant did not manufacturer or sell the dangerous item, and is therefore, not liable


On the MBE make sure you distinguish between the different types of strict liability, such as between

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


When a person negligently causes an injury to another, the defendant is also liable for

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.


The saying that the defendant "takes the victim as he finds him" means that

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.


What is the separability of injuries (also known as the "divisibility" of injuries

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.


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


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.


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.


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).


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.


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.