Torts 2

Question 1

Which parties have special relationships which imposes a duty to protect others? (P1)

Answer 1

Parent/child
Hospital/patient
Employer/employees
Shopkeeper/business invitees
Common carrier/passengers
Custodian/person in custody
Innkeeper/guests

Please, Help, Eliminate, Safety, Concerns, Causing, Injuries

Question 2

How does the common law common carrier negligence standard differ from the modern approach? (P1)

Answer 2

Under the common-law approach (majority rule), common carriers can be liable for even slight negligence because they owe the highest duty of care to their passengers that is consistent with practical business operations.

But under the modern approach (minority rule), common carriers are negligent only if they fail to use reasonable care to protect passengers from harm that arises within the scope of that relationship.

Question 3

Even when negligence per se is established under a contributory negligence regime, what else must the defendant prove to hold the plaintiff liable? (P1)

Answer 3

Even when negligence per se is established, the defendant still must prove that the plaintiff’s negligence proximately caused the plaintiff’s harm.

I.e., if their negligence did not cause their harm, they cannot be held liable

Question 4

What is the default fault jurisdiction tested on the MBE? (P1)

Answer 4

Pure comparative-fault jurisdiction, i.e., the plaintiff’s recovery is reduced—not barred—by his/her share of the fault.

Question 5

What is the last clear chance doctrine and under what jurisdictions does it generally apply vs. not apply? (P1)

Answer 5

The last-clear-chance rule allows a plaintiff to recover despite his/her contributory negligence if the defendant (1) had the last clear chance to avoid the plaintiff’s injury and (2) failed to use reasonable care to do so.

It generally applies in contributory negligence jurisdictions

However, this doctrine has been abolished in most comparative-fault jurisdictions.

Question 6

What is the substantial factor test and when does it apply? (P1)

Answer 6

Where multiple forces combined to cause the plaintiff’s harm and any one alone would have been sufficient to cause the harm, the test for actual causation is whether the defendant’s conduct was a substantial factor in causing the harm (rather than the but-for test for a traditional negligence action)

Question 7

Can strict liability be imposed on any commercial seller in the chain of distribution? (P1)

Answer 7

Strict products liability is imposed on any commercial seller in the chain of distribution if (1) the commercial seller’s product contained a defect when it left the commercial seller’s control and (2) that defect caused the plaintiff harm.

Question 8

How does joint and several liability differ from several liability? (P1)

Answer 8

Joint and several liability means multiple parties who share responsibility for a harm can be held liable for the full amount of damages, even if their individual fault is less than the full amount.

Note: The plaintiff must first prove that each defendant was negligent for joint and several liability

Under pure several liability, each party is liable only for his proportionate share of the plaintiff’s damages.

Question 9

What is the relationship between negligence and compliance with industry custom? (P1)

Answer 9

To determine whether a defendant has used ordinary care, the trier of fact (e.g., the jury) may consider all relevant factors—including compliance with community or industry custom. But compliance with (or deviation from) custom is not conclusive on the issue of negligence. That is because custom is merely one factor considered by the fact finder to determine whether the defendant acted as a reasonably prudent person.

Question 10

What is a trespasser? (P1)

Answer 10

A trespasser is someone who enters or remains on another’s land without consent or privilege to do so.

Question 11

What duty of care do landlords owe to tenants? (P1)

Answer 11

1) Maintain safe common areas

2) Warn of hidden dangers (especially for premises that
are leased for public use?

3) Repair hazardous conditions

Question 12

What are the modern factors for determining breach? (P1)

Answer 12

Cost-benefit analysis:

(Burden v. Probability of the harm x severity of the loss)

Question 13

What does an intervening cause become a superseding cause? (P1) How does it apply in cases of negligence? (P2)

Answer 13

An intervening cause becomes a superseding cause when there is unforeseeable, intervening act that occurs after the defendant’s negligence and contributes to the plaintiff’s harm — breaking the chain of proximate causation.

But negligent intervening acts are typically regarded as foreseeable and therefore do not cut off the defendant’s liability. (i.e. customer negligently dropping a lighter after mechanic spilled fluid, causing fire)

Question 14

Which three parties have an absolute duty and can be proper defendants under strict liability? (P1)

Answer 14

Manufacturers, distributors, seller

Question 15

What are the two tests under design defects for defective products? (P1)

Answer 15

1) Consumer-expectation test—plaintiff must prove that the product is dangerous beyond the expectation of an ordinary consumer

2) Risk-utility test—plaintiff must prove that a reasonable alternative design that is economically feasible was available to defendant, and failure to use that design rendered the product unreasonably dangerous.

Question 16

What are the three ways a plaintiff can bring a products-liability claim? (P1)

Answer 16

1) Negligence—plaintiff must prove duty, breach, causation, and damages

2) Strict Liability for Defective Products

3) Breach of Warranty Claim

Question 17

What are the two main types of defamation? (P1)

Answer 17

Libel: a written, or recorded defamatory statement
(including TV/radio broadcasts, e-mail, and electronic communications)

Slander: Oral statement where the plaintiff must prove special damages and requires a showing of economic loss (exceptions include slander per se)

Question 18

When is the owner of a domestic animal strictly liable? (P2)

Answer 18

When (1) the owner knew or had reason to know about the animal’s dangerous propensities and (2) the plaintiff’s harm arose from those dangerous propensities.

Question 19

When may a defendant be liable for intentional infliction of emotional distress to a third party? (P2)

Answer 19

A defendant may be liable for intentional infliction of emotional distress towards a third party if (1) the plaintiff contemporaneously perceived that conduct; (2) the plaintiff was closely related to the third party; and (3) the defendant knew of the plaintiff’s presence and that relationship.

Question 20

How are a plaintiff’s damages calculated in a pure comparative negligence jurisdiction when both parties are at fault? (P2, Q7)

Answer 20

In a pure comparative-fault jurisdiction, when the plaintiff and the defendant are both entitled to recover damages, the plaintiff’s recovery is NOT ONLY reduced by their percentage of fault, but also further offset by the defendant’s recovery (and vice versa).

*Tricky concept, make sure I understand

Question 21

What is the Cardozo vs. Andrews view on the duty of care? (P2)

Answer 21

1) Cardozo view (majority view) a duty is owed only to persons who might be foreseeably harmed as a result of defendant’s negligence (ie, persons within zone of foreseeable harm)

2) Under the Andrew’s view (minority view) a duty is owed to everyone on earth if anyone might be foreseeably harmed as a result of defendant’s negligence

Question 22

What is the learned-intermediary rule for strict liability? (P2)

Answer 22

A manufacturer of a prescription drug or medical device will not be held strictly liable for inadequate warnings or instructions if the manufacturer warned the prescribing physician about the risk of harm associated with that product.

Question 23

What is the merchant’s privilege rule for false imprisonment? What are its requirements? (P2)

Answer 23

Merchant’s privilege rule applies when a seller of goods or services (i.e., a merchant) may use force against another to investigate a theft,
recapture personal property, or facilitate arrest.

The merchant must:
1) Reasonably believe that the other has committed a theft
2) Use force in a reasonable manner, and for a reasonable time; and
2) Detain the plaintiff on or in the immediate vicinity of the merchant’s premises

Question 24

What is a guest statute and how does it differ from the duty owed to drivers in most jurisdictions? (P2)

Answer 24

A minority of jurisdictions have enacted “guest statutes,” under which an automobile driver’s only duty to guests is to refrain from gross or wanton and willful misconduct.

In most jurisdictions, automobile drivers owe a duty of ordinary care to guests (who ride free) and passengers (who pay money for the ride).

Question 25

Under what theory are commercial supplier's subject to strict liability? How does this apply to integrated components? (P2)

Answer 25

Any seller is subject to strict products liability if they are in the distribution "chain" (e.g., manufacturer, distributor, retailer) The commercial supplier of an integrated component of defective product is subject to strict liability when (1) the component is defective or (2) the supplier substantially participated in the process of integrating the component into the product's design and; (3) the component's integration caused that product to be defective.

Question 26

What is the minority approach for negligence per se? (P2)

Answer 26

A defendant's violation of a statute or ordinance creates a rebuttable presumption (as opposed to a conclusive presumption) that the defendant breached a duty of care.

Question 27

How does the modern approach to land-possessor liability differ from the traditional approach? (P2)

Answer 27

Under the traditional approach, landowners owe a duty to land entrants based on their status on the land (e.g., licensee, invitee, trespasser). But under the modern approach, land possessors owe ALL land entrants a duty of reasonable care to protect them from foreseeable risk of harm (except flagrant trespassers). Note: A flagrant trespasser is one who enters another's land without permission and whose entry is particularly egregious—e.g., entry that results in commission of a crime.

Question 28

What standard is an intoxicated person held to in negligence cases? (P2)

Answer 28

In negligence cases, a VOLUNTARY intoxicated person is held to the same standard as a reasonably prudent sober person. In contrast, the conduct of an INVOLUNTARY intoxicated person will be measured by the standard of a reasonably careful person with the same level of intoxication.

Question 29

What is implied assumption of the risk and what are its exceptions? (P2)

Answer 29

Implied assumption of the risk is a defense to negligence if the plaintiff voluntarily accepted a known risk of harm. However, it is NOT a defense when the plaintiff: 1) suffered intentional harm; 2) is a member of statutorily protected class

Question 30

What is express assumption of the risk and what are its exceptions? (P2)

Answer 30

Express assumption of the risk is a defense to negligence if the plaintiff assented to a liability waiver intended to cover the type of conduct that caused plaintiff's harm However, it is NOT a defense when defendant: 1) Is plaintiff's employer 2) Is a hotel or common carrier 3) Is a public servant/service 4) Has substantially more bargaining power

Question 31

What is the informed-consent doctrine? (P2)

Answer 31

Under the informed-consent doctrine, a physician who fails to disclose the risks of a medical treatment or procedure to a patient is liable for negligence if (1) the failure to disclose caused the patient to consent and (2) the undisclosed risk materialized and resulted in physical harm. Note: A significant minority holds that a physician must only disclose "material risks." (i.e., risks that a reasonable person in the patient's position would consider when deciding whether to undergo the treatment or procedure).

Question 32

How are compensatory damages calculated in a negligence action? What is one exception?

Answer 32

A plaintiff can recover compensatory damages based on: (1) the plaintiff's initial physical harm, (2) any subsequent harm traceable to that initial harm, and (3) steps taken to mitigate the initial harm. Note: *But the plaintiff's actions prior to the defendant's negligent act are not a factor in determining damages.

Question 33

What standard of care is a physician held to? (E1)

Answer 33

A physician is held to a national standard and is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner.

Question 34

What is the alternative causation doctrine? (E1)

Answer 34

Under the alternative causation doctrine, if the plaintiff’s harm was caused by (i) one of a small number of defendants, (ii) each of whose conduct was negligent, and (iii) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff’s harm.

Question 35

What duties do parents owe with respect to their minor children and when can it be breached? (P2)

Answer 35

A defendant generally has no duty to control another's conduct unless the parties have a special relationship. Since parents and children have a special relationship, parents have a duty to exercise reasonable care to prevent their minor child from causing foreseeable harm to others. Therefore, parents are liable for negligence if they breach this duty and cause the plaintiff harm.

Question 36

What are the contributory negligence and comparative fault defenses to strict liability? (P2)

Answer 36

1. Contributory Negligence: In contributory-negligence jurisdictions, the plaintiff’s contributory negligence is not a defense to strict liability (i.e., it does not bar recovery). 2. Comparative Fault: Courts are divided, and in some comparative-fault jurisdictions, the plaintiff’s negligence does not reduce the plaintiff’s recovery under a strict-liability claim. Other jurisdictions would allow recovery to be reduced by the comparative fault of the plaintiff.[i]

Question 37

What is assumption of the risk defense to strict liability and how does it apply to animals?

Answer 37

The plaintiff’s assumption of the risk bars his recovery in a strict-liability action. This defense is also referred to as “knowing contributory negligence.” With animals, if the plaintiff is aware of the dangerous propensity of an animal and taunts the animal, he may be prohibited from recovering under the doctrine of assumption of the risk.

Question 38

What are the statutory privilege and trespasser defenses to strict liability?

Answer 38

4. Statutory Privilege: Performance of an essential public service (e.g., construction of utility or sewer lines) exempts one from strict liability; however, liability may still exist under a negligence theory. 5. Trespasser: In states that continue to classify property entrants (i.e., invitee, licensee, trespasser), a property possessor is not strictly liable for injuries inflicted by his animals against a trespasser, except, in some jurisdictions, for injuries inflicted by a vicious watchdog. Remember, however, that a landowner may be liable on a negligence theory.

Question 39

When may a defendant uses deadly force to defend himself (or a third party) against a plaintiff?

Answer 39

A defendant may use deadly force to defend a himself or third party when the defendant reasonably believes (1) the plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force on himself/the third party, (2) he/ third party is subject to death, serious bodily harm, or rape, and (3) he can prevent that harm only by immediate deadly force.

Question 40

What is required to recover damages in a medical malpractice action?

Answer 40

The plaintiff must prove that the physician's conduct fell below the relevant professional standard of care and caused the plaintiff physical harm (i.e., the actual and proximate cause of the plaintiff's injuries).

Question 41

How can trespass to chattel's occur and what harm must be proven?

Answer 41

Trespass to chattels occurs through use, intermeddling (i.e., causing physical contact), or dispossession Nominal* harm is inferred when the interference is through dispossession. But when the interference is through use or intermeddling, the plaintiff must prove actual damages* through (1) actual harm to the chattel, (2) substantial loss of use of the chattel, or (3) bodily harm to the plaintiff.

Question 42

What is the firefighter's rule, and what is one exception?

Answer 42

Under the firefighter's rule, professional rescuers are barred from recovering in negligence for harm that resulted from the special dangers of their jobs. Exception: That rule does not bar professional rescuers from recovering for harm that resulted from a land possessor's failure to warn them about concealed dangers known to the land possessor. (I.e., slipping on defective walkway)