Torts

Question 1

Negligence Elements

Answer 1

Elements:

1. Duty of care
   - D has a duty to conform to a specific standard of care

• Reasonably prudent person — D’s duty is to behave like a reasonably prudent person under the circumstances presented
  Exception — in certain situations, an alternative standard of care applies

2. Breach of duty
3. Causation
   Actual cause and proximate cause
   Note — the MBE may refer to actual cause as “cause-in-fact” or “factual cause,” and proximate cause as “legal cause”
4. Damages

Question 2

Duty of Care - Default

Answer 2

Default standard of care — reasonably prudent person (RPP)

D’s duty is to behave like an ordinary, reasonably prudent person under the circumstances with regard to foreseeable plaintiffs

RPP is considered to be someone with D’s physical characteristics (including disabilities such as blindness), but with the knowledge and mental capacity of an ordinary person

Question 3

Children Standard of Care

Answer 3

held to the standard of care of a reasonable child of similar age, education, intelligence, and experience

Generally, young children (i.e., under 5) lack capacity to be held negligent

Adult activities exception—children engaged in adult activities must conform to an adult standard of care in that activity

Question 4

Common Carriers & Innkeepers

Answer 4

Common carriers & innkeepers—held to an “utmost care” standard

Liable for even slight negligence to passengers or guests

Question 5

Custom or Usage in an Industry

Answer 5

Custom or usage in an industry—can be used to establish a standard of care, but failure to adhere does not automatically give rise to a breach of duty, nor does compliance with an industry custom automatically establish a lack of negligence

Question 6

Standard of Care for Professionals

Answer 6

Professionals—must act with the knowledge and skill of a member of their profession in good standing in similar communities

Medical professionals—held to national standard of care

Question 7

Statutory Standard of Care

Answer 7

An existing statute may establish a standard of care, in which case the statutory standard imposed by the statute will replace the general common law standard of reasonable care

Requirements—statutory standard of care will apply if P shows:

1) the statute’s purpose is to prevent the type of harm P suffered; and

2) P is in class of victims statute was meant to protect

Statutory standard of care does not apply if:

1) Compliance is more dangerous than non-compliance, or

2) Compliance is impossible under the circumstances

Question 8

Negligence Per Se

Answer 8

violation of the statute means P must only prove causation, not breach of duty

Under majority rule, that violation of the statute establishes a conclusive presumption of duty and breach of duty

Compliance does not automatically clear D of liability

Question 9

Duty of Care for Owners to Trespassers

Answer 9

Owners and occupiers of land may have a duty of care for anticipated trespassers and child trespassers

Question 10

Anticipated Trespassers

Answer 10

Anticipated trespassers — where owner has reason to believe of trespassers on her land

Activities — owner has duty of reasonable care in carrying out activities on her property
Dangerous conditions — owner has duty to make safe or warn of any known, concealed, man-made hazards

*No duty owed to unknown trespassers

Question 11

Child Trespassers - Attractive Nuisance

Answer 11

Owner must take reasonable care to eliminate dangers on her property or protect children from those dangers if:

1) She is aware or should be aware of a dangerous condition on her property;

2) She knows or should know children are in the vicinity;

3) The condition is likely to cause injury given a child’s inability to appreciate the risk; and

4) The magnitude of the risk outweighs its utility or the expense of remedying it

Question 12

Duty of Care for Owners to Licensees

Answer 12

Licensee — one who enters land with owner’s permission for his own purpose or business (i.e., not for landowner’s benefit) (i.e. friend)

Activities carried out on property — reasonable care

Known dangerous conditions — duty to warn or make safe

Scope of duty — limited by scope of the invitation/license

Owner’s duty extends only to those areas where one is an invitee or licensee (e.g., store owner does not owe duty of care in employees-only area)

Question 13

Duty of Care for Owners for Invitees

Answer 13

Invitee — one who enters land held open to the public or who enters with owner’s permission to confer a commercial benefit

Invitees — owners have duty to conduct a reasonable inspection for non-obvious dangers and make them safe

Question 14

Breach of Duty

Answer 14

D breaches his duty when his conduct falls short of the standard of care owed under the circumstances

Question 15

Res Ipsa Loquitur

Answer 15

Allows for breach to be found if 1) defendant had exclusive control over the instrumentality that caused the injury; 2) the type of accident does not occur unless somebody is negligent; 3) causation; and 4) damages.

Question 16

Actual Case - But For

Answer 16

“But-for” test — but for D’s alleged breach of duty, P’s injury would not have occurred

Question 17

Actual Cause - Substantial Factor Test

Answer 17

Substantial factor test — for multiple causes of P’s injury

D’s breach is the actual cause if it was a substantial factor in bringing about P’s injury

Application — used if multiple causes bring about P’s injury and any one of them alone would have caused the injury

Question 18

Actual Cause - Alternative Cause

Answer 18

When two or more persons have been negligent but it is unclear who caused the injury, P’s duty is to prove that one D caused the harm, and then the burden shifts to each D to provide that his negligence did not cause the injury.

Question 19

Proximate Cause

Answer 19

Defendant is liable for all consequences reasonably and foreseeably caused by the D’s conducts

Question 20

Proximate Cause - Indirect Causes

Answer 20

intervening forces that occur after D’s conduct to cause P’s injuries will not cut off D’s liability if they are foreseeable

An intervening force is usually foreseeable if either:

1) It is a normal response or reaction to D’s negligent act, or

2) D’s negligence increased the risk that an intervening force would cause harm to P

• Injuries to rescuers are usually considered foreseeable

Question 21

Eggshell Plaintiff Rule

Answer 21

D takes P as he finds him and is liable for the full extent of P’s injuries, regardless of whether they are foreseeable

Question 22

Damages

Answer 22

P must prove damages, which are not presumed in negligence cases; nominal damages are not available

Question 23

Types of Damages

Answer 23

Recoverable:

Personal injury — D must compensate P for all damages
Includes past, present, and prospective damages

Economic and non-economic damages are recoverable

Property damage — P can recover reasonable cost of repair
If property is irreparable, damages = full market value at the time the accident occurred

Punitive damages — only recoverable if D’s conduct is wanton and willful, reckless, or malicious

Usually not available in negligence cases; more common with intentional torts

Non-recoverable damages — P can never recover for:

• Interest from the date of damage in personal injury cases
• Attorneys’ fees

Duty to mitigate — P must take reasonable steps to mitigate damages

Question 24

Comparative Negligence

Answer 24

D can establish that P’s injuries are at least partially the result of P’s own negligence

Fact-finder apportions fault between P and D by percentage and reduces P’s recoverable damages accordingly

• Partial/modified comparative negligence—P can only recover damages if he was less than 50% at fault (or 50% or less in some states, and over 50% can make claim inactionable)
• Pure comparative negligence—P can recover damages even if he was more than 50% at fault

Question 25

Contributory Negligence

Answer 25

P is barred from recovery if D establishes that P’s negligence contributed to her injuries Last clear chance defense—P can rebut D’s contributory negligence claim by proving D had the last clear chance to avoid the injury-causing accident

Question 26

Assumption of Risk

Answer 26

D can deny P’s recovery by establishing that P assumed the risk of damage caused by D’s act Requirements—D must show: 1) P knew of the risk (subjective standard; but knowledge can be inferred from facts); and 2) P voluntarily proceeded in the face of that risk -> Express assumption—P can assume risk by agreement (e.g., exculpatory clause); less likely to be enforced if part of adhesion K

Question 27

Negligent Infliction of Emotional Distress

Answer 27

P may recover for emotional distress resulting from D’s negligence Elements: 1) D’s negligence results in a close risk of bodily harm to P --P must be in “zone of danger” to recover I.e., D’s act must have nearly caused physical harm to P 2) D’s negligence results in P’s severe emotional distress 3) P exhibits some physical manifestation attributable to her emotional distress --Symptoms can be instantaneous or appear days later --Non-physical symptoms — states are split on this element; many allow severe emotional distress alone Note — on essays, note the distinction; given the split, an MBE question is unlikely to turn on this element

Question 28

Bystander Claims for NIED

Answer 28

Bystander claims — P-bystanders outside the zone of danger may recover for emotional distress resulting from D’s negligence if: 1) P and the injured person are closely related; 2) P was present at the scene of the injury; and 3) P personally observed or perceived the event

Question 29

Special Situations for NIED

Answer 29

Special situations — if above elements are not met, P may still recover where D’s negligence creates a great likelihood of emotional distress

Question 30

Assault

Answer 30

An intentional act by D creating P’s reasonable apprehension of immediate harmful or offensive contact to P’s person, or something closely attached to P’s person (e.g., hat, cane) Elements: 1) Act by D that creates a reasonable apprehension in P --“Reasonable apprehension” = P has awareness of D’s act and has a reasonable expectation that it will result in immediate harmful or offensive contact to P’s person --Note—beware of fact patterns where D appears incapable of accomplishing the threatened harm ---Apparent ability is sufficient, as long as it could reasonably create P’s apprehension 2) Of immediate harmful or offensive contact to P’s person --P must apprehend an immediate or imminent battery --Words or threats are usually insufficient, unless coupled with some overt act (e.g., picking up a weapon, clenching fists, etc.) --Similarly, threats of future battery are insufficient 3) Intent 4) Causation

Question 31

Battery

Answer 31

An intentional harmful or offensive contact to P’s person by D Elements: 1) Harmful or offensive contact by D Harmful contact is contact that causes pain, injury, etc. Contact is offensive if it would be considered offensive by a reasonable person and P has not consented 2) To P’s person - Includes anything connected to P’s person (e.g., P’s hat) 3) Intent 4) Causation Indirect contact is sufficient — i.e., causing the force that gives rise to harmful or offensive contact E.g., greasing a floor so that P will slip and fall

Question 32

False Imprisonment

Answer 32

An intentional act by D resulting in P’s restraint or confinement to a bounded area Elements: 1) Act (or omission) resulting in P’s restraint or confinement Restraint or confinement does not have to be physical I.e., threats of force, invalid use of legal authority Duration is not important; brief confinement will suffice 2) P is confined to a bounded area P must be aware of or harmed by the confinement P’s freedom of movement must be limited P must not be aware of any reasonable means of escape If a reasonable person could get out (e.g., by opening an unlocked door), no false imprisonment 3) Intent 4) Causation

Question 33

False Imprisonment - Shopkeeper's Privilege

Answer 33

a store may detain a suspected thief if: 1) Store has reasonable cause to believe a theft occurred; 2) Store detains suspect in a reasonable manner (only non-deadly force is permitted) for purposes of investigation; and 3) Detention is reasonable in length and scope Shopkeeper may be held liable for any harm caused by acts exceeding the privilege

Question 34

Intentional Infliction of Emotional Distress

Answer 34

Extreme and outrageous conduct by D causing P’s severe emotional distress Elements: 1) Extreme and outrageous conduct by D Conduct that exceeds the bounds of decency in society Mere insults alone are insufficient Conduct must be outrageous to a reasonable person unless: a) D targets P’s known sensitivity or weakness, b) D’s conduct is continuous or repetitive, c) D targets a P who is a member of a “fragile” class (e.g., elderly, children, pregnant women), or d) D is a common carrier or innkeeper 2) Severe emotional distress in P P must suffer severe emotional distress from D’s conduct -Physical symptoms are not necessary Note — watch for facts indicating extreme, outrageous conduct but P does not suffer severe emotional harm — this is not IIED 3) Intent or recklessness Recklessness = D disregards the likely consequences of his acts 4) Causation

Question 35

IIED for Bystanders

Answer 35

When D’s conduct is directed at a third person and P (the bystander) suffers severe emotional distress, P must prove the same IIED elements (see Card 5) with additional intent and causation requirements Additional Reqs: 1) P was present at the time; 2) P was a close relative of TP, or distress resulted in bodily harm; and 3) D knew these facts

Question 36

Trespass to Land

Answer 36

A physical invasion of P’s real property by D Elements: 1) Physical invasion of P’s real property by D D enters P’s property or propels an object onto it E.g., D walks on P’s property, throws a ball onto P’s property, chases someone onto P’s property P need only have lawful possession of the property — ownership not required Must be a physical invasion Invasions by light, sound, smell are not trespass (but may give rise to nuisance) P’s real property includes surface space, airspace, and subterranean space to a reasonable distance 2) Intent Intent to enter the land will suffice, even by reasonable mistake D does not need to know the land belongs to another 3) Causation

Question 37

Trespass to Chattel & Conversion

Answer 37

Two separate but similar torts; the difference is the level of interference with P’s property and the damages P can recover Elements: 1) D interferes with P’s right of possession in tangible personal property (chattel) Interference usually occurs through dispossession (depriving P of his possessory rights in chattel) or damaging P’s chattel Trespass — minor interference or damage Conversion — significant interference or damage that justifies D paying the chattel’s full value A longer and/or more damaging use of P’s chattel gives rise to conversion 2) Intent 3) Causation 4) Damages — P must have some loss of use Trespass — P can recover cost of repair or rental value of chattel Conversion — P can recover full market value at the time of conversion or repossess the chattel (replevin)

Question 38

Defense to Intentional Torts - Consent

Answer 38

A defense to all intentional torts—if P consents to D’s otherwise tortious conduct, D is not liable for that act * Capacity required —P must be capable of consenting I.e., drunks, mentally impaired, and young children are incapable of consenting to tortious conduct Express consent—P gives D verbal or written consent --Nullified by duress, fraud, or mistake Implied consent—D can reasonably infer P’s consent based on custom or P’s observable conduct - Often arises if P participates in an activity or goes to a place where torts are common E.g., if P plays tackle football, P has given implied consent to certain forms of battery - Consent is usually implied for ordinary contacts of daily life (e.g., brushing against someone on crowded sidewalk or public transportation) - Facts must indicate that based on P’s objective conduct, D was reasonable in interpreting P’s consent *Scope of consent—D can be held liable for conduct that exceeds the scope of P’s valid consent (express or implied)

Question 39

Defense to Intentional Torts - Self-Defense

Answer 39

1) Reasonable belief—D must reasonably believe a tort is being or about to be committed 2) Proper timing—tort must be in progress or imminent 3) Reasonable force—must be proportionate to threat of harm --Deadly force—allowed if D reasonably believes a life is in danger (never permitted to protect property alone) *No duty to retreat (except a minority of jurisdictions impose a duty to retreat before using deadly force if retreat can be done safely) *Only available to initial aggressor if initial threat has terminated or D responds to non-deadly force with deadly force

Question 40

Defense to Intentional Torts - Defense of Others

Answer 40

D must have reasonable belief that the person he is aiding would have the right of self-defense D may use as much force as he could have used if the injury was threatened to him (i.e., if he was acting in self-defense) Elements: 1) Reasonable belief—D must reasonably believe a tort is being or about to be committed 2) Proper timing—tort must be in progress or imminent 3) Reasonable force—must be proportionate to threat of harm --Deadly force—allowed if D reasonably believes a life is in danger (never permitted to protect property alone)

Question 41

Defense to Intentional Torts - Defense of Property

Answer 41

Available to Prevent Tort against Property Elements: 1) Reasonable belief—D must reasonably believe a tort is being or about to be committed 2) Proper timing—tort must be in progress or imminent 3) Reasonable force—must be proportionate to threat of harm * Reasonable force may be used, but force that is deadly or causes serious bodily harm is not allowed for defense of property alone Unavailable if initial actor had a privilege to enter land (e.g., recapturing chattel) Reasonable mistake only allowed as to whether an intrusion occurred, not whether privilege existed

Question 42

Defense to Intentional Torts - Necessity

Answer 42

A defense to torts against property (trespass to land, trespass to chattel, conversion) in which D damages P’s property in an effort to avoid a greater danger Requirements: 1) D’s interference with P’s property must be reasonably necessary to avoid an immediate threatened injury 2) Threatened injury must be more serious than the interference undertaken to avert it a) Public necessity—absolute defense --D’s invasion of P’s property must be reasonably necessary to protect the community or a large group of people Absolute defense—P cannot recover any damages b) Private necessity—limited defense --D invades P’s property to protect his own property or self or small group Limited defense—P can only recover damages for actual harm to D’s property, unless D trespassed for P’s benefit Property owner liability—if an owner repels or expels a trespasser who interfered with or invaded owner’s property out of a valid necessity (e.g., P seeks shelter from terrible storm), owner will be liable for any damage caused

Question 43

Defense to Intentional Torts - Recapture of Chattels

Answer 43

D has a legal privilege to use peaceful means to recover possession of chattel taken unlawfully, and to use reasonable, non-deadly force if in fresh pursuit of the chattel-taker Also a defense to assault and battery and false imprisonment Limitations & requirements: D-owner must make a timely demand for return of chattel Exception—not required if making demand would be futile or dangerous D-owner may recapture from original wrongdoer or a third person who knows the chattel was wrongfully obtained Recapture is not available if chattel is in the hands of an innocent party Use of force—reasonable force may be used to recapture chattel only if in fresh pursuit of one who has wrongfully obtained possession *No deadly force or serious bodily harm permitted

Question 44

Strict Liability - Products Liability

Answer 44

Elements: 1) D is a commercial supplier Suppliers have a strict duty to supply safe goods *Commercial supplier = one who routinely deals in the product sold, including any merchant in the stream of commerce --E.g., manufacturer, distributor, supplier Casual sellers, service providers are not suppliers 2) Product is defective --Defect must make product unreasonably dangerous 3) Defective product was actual and proximate cause of P’s injury Product must not be substantially altered between leaving commercial supplier and reaching consumer 4) P used the product in a foreseeable manner --P’s misuse of the product can be foreseeable Who can sue — foreseeable users or bystanders E.g., buyers as well as their guests, employees, family, etc. 5) Damages — P can recover for physical injury or property damage, but not solely for economic losses

Question 45

Manufacturing Defect

Answer 45

product departs from its intended design, causing it to be more dangerous than all of the manufacturer’s other products of same kind Requirements—P must show that the product failed to perform as safely as an ordinary consumer would expect

Question 46

Design Defect

Answer 46

product creates an unreasonable risk of danger due to its faulty design Requirements—P must show a technologically and economically feasible alternative design or modification that would be safer as to the risk at issue

Question 47

Inadequate Warning

Answer 47

manufacturer fails to adequately warn of a non-obvious risk associated with a product’s use Includes duty to warn of foreseeable dangers from misuse Requirements—P must show that the product failed to have clear and complete warnings of any dangers that would not have been ordinarily apparent to consumers Unavoidably unsafe products—if a product cannot be made safe for its ordinary use (e.g., chain saw, firearms), manufacturer must give: 1) Proper instructions for use; and 2) Adequate warnings of known dangers D is not liable for risks that were unforeseeable at the time the product was marketed

Question 48

Negligence - Products Liability

Answer 48

P may establish liability for a product defect under a negligence theory Elements: 1) Duty of care — each commercial supplier in the stream of commerce owes a duty to all foreseeable product users and bystanders 2) Breach of duty — D’s negligence leads to the supplying of a defective product Retailers and wholesalers satisfy due care by a cursory inspection of the product (this makes it difficult to hold them negligent for product defects) 3) Causation — P must show actual and proximate cause Note — an intermediary’s negligent failure to discover a defect does not absolve the upstream commercial supplier of liability 4) Damages — P must show physical injury or property damage Economic loss alone is not recoverable Defenses — all standard negligence defenses are available

Question 49

Implied Warranty of Merchantability

Answer 49

seller warrants that goods are reasonably fit for their ordinary purpose

Question 50

Impiled Warranty for Fitness for Particular Purpose

Answer 50

if seller a) knows or has reason to know the particular purpose for which buyer is purchasing, and b) knows that buyer is relying on seller’s skills or judgment to select or furnish suitable goods Who can sue — implied warranty protection extends to a buyer’s family, household, and guests who suffer personal injury

Question 51

Elements for Implied Warranty Breach

Answer 51

Elements: 1) Warranty — existence of an implied warranty 2) Breach — product fails to live up to applicable warranty 3) Causation — actual and proximate 4) Damages — personal, property, and economic are all recoverable Defenses — assumption of risk, contributory and comparative negligence

Question 52

Liability based on Representation - Express Warranty

Answer 52

D may be liable if a product falls short of an affirmative representation made to buyer Express warranty — a statement of fact or promise regarding goods sold that becomes part of the basis of the bargain Any consumer or bystander can sue for breach Bystanders need not have relied on the express warranty, as long as the original purchaser did Elements — same as for implied warranties: 1) Express warranty — relied upon by purchaser 2) Breach — product fails to live up to the warranty 3) Causation — actual and proximate 4) Damages — personal, property, and economic loss Defenses — assumption of risk, contributory and comparative negligence

Question 53

Liability based on Representation - Misrepresentation of Fact

Answer 53

D may be liable if a product falls short of an affirmative representation made to buyer seller will be liable for any misrepresentation made in the course of a sale if: 1) Seller made a misrepresentation regarding a material fact concerning the quality or use of the goods; 2) Seller intended to induce reliance by buyer; and 3) The misrepresentation induced justifiable reliance