Flashcards in Tort Exam Tactics -- Emanuels Deck (18)
Questions asking for the "best argument"
When faced with this type of questions, you are likely to look for all the arguments that will support the choices given you, so you'll fail to look to focus on the only correct answer; instead, look at these questions this way: Only one of the answer choices will provide a successful claim or defense. The other three will all be flawed in some way, because they either do not apply to the facts or do not correctly apply the law
Questions asking what the plaintiff will need to prove and in which the claim is identified (e.g., nuisance, defamation).
In this kind of question, only one answer choice will supply the correct level of proof. The others will overstate it or understate it. An answer choice overstates the proof required if, for instance, it overstates the level of fault that the plaintiff must show. An answer choice understates the proof required if, for instance, it is not specific enough, or it is not relevant.
Whenever a claim is mentioned, think of the elements that claim requires, as well as relevant defenses, and keep those in mind as you analyze each choice.
Identifying claims when a question does not on the MBE
Torts questions on the MBE frequently do not tell you the basis for the claim (e.g., nuisance, negligence). There are, however, three important categories that are easy to define:
1. intentional tort
2. negligence; and
3. strict liability
Intentional torts are inherently simple to identify, strict liability claims will include 1 of 3 categories, therefore, that will leave you in most cases with a negligence claim
You can also get help by looking at the reasoning of the answer choices, because at least one will contain a material element of the correct claim.
Language such as (what?) in answer choices is the language of negligence claims
Language such as "REASON TO KNOW," as that is determined objectively.
Also, in the question itself, the facts will suggest what the plaintiff's claim must be. If there's no intent stated or indicated, you wont base a claim on an intentional tort. if there's no basis for strict liability, you wouldn't claim it. That leaves negligence.
Why is it important to identify the claim specifically
because incorrect answer choices are often wrong because they are based on something that is "not relevant to a plaintiff's claim but is relevant to another, similar claim. If you have correctly identified the claim, you cannot be fooled this way
Where "IF" is the modifier in an answer choice
Analyze these answer choices this way:
1. The reasoning of the answer choice must be "plausible" on the facts, i.e., there cannot be anything in the facts suggesting that an alternative is true
2. The answer choice must resolve a significant issue.
3. The result must be consistent with the reasoning
Where "BECAUSE" is the modifier in an answer choice
If the corresponding question asks who will prevail, ask yourself: "Would these facts be necessary to make the defendant liable"
In other words, using the modifier "because" requires that the answer choice "state an element required to make the defendant liable."
In order for the employees to be liable for negligence, they must
have failed to exercise the care a reasonable person in their position would have exercised. Employers are constantly held liable for torts of their employees when the employer has no personal knowledge of those torts, or of the underlying situation that required the employees to behave with reasonable care.
Remember that an individual cannot held liable under a negligence claim when
the individual acted reasonable; since reasonable behavior precludes liability for negligence
when does respondeat superior applied
when "AT LEAST" one individual employee was the negligent cause of the harm.
Where "unless" is the modifier in an answer choice. If an answer choice states that "The plaintiff will not prevail "unless" X ...,
then there must be no other way than (the wording after the modifier unless) for the plaintiff to succeed. In other words, if (the wording/reasoning after the modifier unless) does not exist, then the defendant is not liable
The reason need only be plausible on the facts.
Negligence questions: a shortcut
Look at the defendant's conduct and see if it was "reasonable". if it was, defendant "cannot be negligent, because negligence requires unreasonable behavior.
Causation is one of the trickiest issues on the entire MBE, and the fact that someone other than the defendant contributed to the plaintiff's
does not, in itself, relieve the defendant of liability if the defendant's conduct was a substantial factor in causing a plaintiff's damages
Causation when there is more then one defendant is applicable because
A defendant's conduct can be a "substantial factor" in creating a plaintiff's injuries (which is enough for liability) at the same time as there are additional "actual" causes.
When will intervening causes supercede
Intervening causes will supersede only if they were unforeseeable. In other words, intervening causes relieve the original tortfeasor of liability only if the results of the intervening causes are unforeseeable.
Think of intervening causes as insulation, and decide whether they create enough of an insulating barrier to justify the plaintiff's not recovering
Will the intervening act create a sufficient barrier against the first defendant
Normally on the MBE, the intervening act will not create a sufficient barrier to justify the plaintiff's not recovering
Do not be thrown by the fact that the intervening actor may also be liable.
Under joint-and-several-liability (which your are told to assume by default), If the negligent acts of the original tortfeasor and of some later tortfeasor combine to produce an individual harm
The plaintiff can pick which tortfeasor to sue, and recover his "entire" damages from that person. The mere fact that the plaintiff could have sued someone else "as well" does not exonerate the defendant chosen for suit (whose remedy is a contribution or indemnity claim against the missing tortfeasor).