Torts MBE

Question 1

What is needed for a claim of negligence?

Answer 1

The plaintiff must prove duty, breach, causation, and harm

Question 2

What is the general standard of duty that a person has?

Answer 2

The reasonably prudent person standard

Question 3

What standard is used to determine a child’s duty?

Answer 3

Use a subjective standard. Look at the intelligence, age, and experience of the child.

Question 4

What standard is used to determine a child’s duty engaged in adult activity?

Answer 4

Use the reasonably prudent person standard

Question 5

What is the duty of someone with physical impairments?

Answer 5

Reasonable person standard but take into account if the defendant is physically impaired

Question 6

What is negligence per se

Answer 6

If a defendant violates a statute and the plaintiff was in the class of people that the statute was trying to protect, and the plaintiff received the injury that the statute was trying to prevent, duty and breach are established

The plaintiff must still prove causation and harm

Question 7

What is custom?

Answer 7

This is usually evidence of a duty of care for industry.

For malpractice cases, it is conclusive evidence

Question 8

What duty exists to third parties?

Answer 8

Generally, there is no duty to control the conduct of third parties. However, one must act reasonably to control a third party if one has a special relationship with the third party

Question 9

What duty of care does a landowner have to an undiscovered

Answer 9

No duty of care is owed. However, the landowner cannot act wantonly or willfully

Question 10

What is the duty of care that a landowner has to a discovered trespasser

Answer 10

The premise possessor must warn of or make safe unreasonably dangerous artificial conditions that it knows of

Question 11

What duty of care does a landowner have towards a licensee (social guest)

Answer 11

The premises’ possessor must warn of or make safe all concealed dangers that it knows of

Question 12

What duty of care does a landowner have towards an invitee (one who enters a public place or business)

Answer 12

The premises possessor must warn of or make safe all dangers that it knows or should know of

This is the only case where a duty to inspect is imposed on the premises possessor

Question 13

What needs to be shown for a breach?

Answer 13

A plaintiff must show that the defendant breached its duty of care

Question 14

What is res ipsa loquitor

Answer 14

When the circumstances surrounding the injury are unclear. If a plaintiff can show that the injury likely was the result of negligence and that it likely was the defenddant that was negligent, the plaintiff has made a case for breach

Question 15

What is the court procedural option if the plaintiff can show res ipsa loquitor?

Answer 15

It means the case should go to trial, and no direct verdict should be entered for the defendant. It does not necessarily mean that the plaintiff wins his case

Question 16

Wht are the two types of causation that must be present

Answer 16

Actual cause (but for cause) and proximate cause

Question 17

Which test do you use when “multiple causes” contributed to the injury?

Answer 17

if there are two or more defendants, use their substantial factor test. If a defendant’s breach was a substantial factor in causing the harm, the defendant is liable

Question 18

What are alternative causes? (causation)

Answer 18

The plaintiff must show that all potential defendants are joined in the lawsuit, and all defendants are negligent. The burden then will shift to each defendant to show its breach of duty was not the actual cause of the harm

Question 19

What are the elements of negligent infliction of emotional damage?

Answer 19

(1) The defendant is negligent
(2) the plaintiff suffers physical symptoms from its emotional distress
(3) The plaintiff is either in the zone of danger or the plaintiff witnesses a negligent injury to a person closely related to the plaintiff

Question 20

What is assault?

Answer 20

Defendant acts with intent to cause a harmful or offensive contact (or imminent apprehension), and an imminent apprehension directly or indirectly results

Question 21

What is comparative negligence?

Answer 21

A judge or jury compares the plaintiff’s fault with the defendant’s fault and assigns percentages to each

Question 22

What is pure comparative negligence?

Answer 22

The plaintiff can recover no matter how negligent he is. The damages are simply reduced by his percentage of fault

This is the default on the MBE unless otherwise stated

Question 23

What is partial (modified) comparative negligence?

Answer 23

If the plaintiff was more at fault than the defendant (or in some states, if the plaintiff and the D were equally at fault, the plaintiff cannot recover

Question 24

What is contributory negligence?

Answer 24

The plaintiff cannot recover if he was even a little bit negligent unless the defendant had the last clear chance to avoid injury

Do not apply unless we are told to

Question 25

What is assumption of risk?

Answer 25

If the plaintiff knew of the risk and voluntarily assumed it, he generally cannot recover damages (However, some courts will analyze assumption of the risk using a comparative fault analysis

Question 26

What does a plaintiff need to prove in a strict liability case?

Answer 26

Duty (in this case, is absolute) Causation Harm ** In strict liability cases, whether the defendant was acting reasonably is immaterial

Question 27

What is an abnormally dangerous activity?

Answer 27

One that creates a foreseeable risk of serious harm even when reasonable care is exercised and the activity is not a matter of common usage in the community. Strict liability w/ defendant Ex.. Blasting, mining, and explosives

Question 28

What is your responsibility if you house wild animals and there is harm done

Answer 28

The defendant is strictly liable for foreseeable harms caused by wild animals. Strict liability is not available to a trespasser; here, the trespasser can sue under a theory of negligence but not strict liability Negligence must be shown if the harm is caused by a domestic animal

Question 29

What are the four elements for defamation

Answer 29

1. A defamatory statement about the plaintiff 2. An unprivileged publication of the statement 3. Fault (at least negligence) and 4. damages

Question 30

How are damages determined in libel and slander cases

Answer 30

Libel cases damages are presumed Slander cases, damages are presumed, and if they fall into the four slander perr se catergories 1. committing a crime of moral turpitude 2. suffering from a loathsome disease 3. unchastity if the plaintiff is a woman 4. something that reflects badly on the plaintiff's business or profession

Question 31

What do public figures need to prove for defamation?

Answer 31

1. The statement is false 2. The defendant acted with malice

Question 32

What is malice for public figure cases?

Answer 32

Present when the defendant knows the statement is false or acts with reckless disregard as to whether it is true or false

Question 33

What are the three defenses to defamation

Answer 33

1. Consent 2. Truth 3. Privileges

Question 34

What is false light?

Answer 34

The defendant widely spreads facts about the plaintiff, which places the plaintiff in a false light that would be offensive to a reasonable person defamation privileges apply here

Question 35

What is appropriation? (Torts)

Answer 35

The defendant uses the plaintiff's name or likeness in an unauthorized way to advertise a product

Question 36

What is intrusion?

Answer 36

defendant intentionally pries or intrudes into a private place in a way that would be offensive to a reasonable person

Question 37

What is disclosure? (Privacy law)

Answer 37

defendant widely disseminates or publishes private information about the plaintiff that would be highly offensive to a reasonable person Defamation applies here

Question 38

What is needed for a product liability case to be brought

Answer 38

1. The defendant must be a merchant 2. The product must be defective at the time it left the defendant's hands

Question 39

What is a manufacturing defect?

Answer 39

The product departs from its intended design, and it is more dangerous than expected

Question 40

What is a design defect?

Answer 40

The product comes out exactly as the manufacturer intended. However, there is an alternative design that is safer, practical, and cost-effective

Question 41

What are the defenses to strict liability cases

Answer 41

1. Assumption of risk 2. comparative negligence 3. or unforeseeable missuse of a product

Question 42

What is intentional interference with business reltions

Answer 42

1. There is a valid business relationship or expectancy that existed between the parties that the defendant knew of 2. The defendant intentionally coerced one of the parties to terminate the relationship, breach a contract, or withhold a business expectancy 3. The defendant was not authorized to interfere; and 4. The interference resulted in damage

Question 43

What is a private nuisnce?

Answer 43

The defendant uses his property in a way that causes substantial, unreasonable interference with the plaintiff's use or enjoyment of his land Who cares about whatever strange way they used the land Question to ask: the defendant's use of his land would substantially interfere with an average member of the community's use and enjoyment of his property

Question 44

What is a public nuisance?

Answer 44

defendant unreasonably interferes with a community's health, safety, or morals. To sue, here plaintiff must suffer unique damages

Question 45

When do we have an affirmative duty to disclose a material fact

Answer 45

If the plaintiff is (1) in a fiduciary relationship with the defendant (2) likely to be misled by the defendant's prior statements, or (3) mistaken about a basic fact of the transaction that the defendant is aware of and should disclose (minority jurisdictions, but generally, people are entitled to use their superior knowledge or expertise while bargaining)

Question 46

What is the last clear chance rule?

Answer 46

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.

Question 47

What does a plaintiff need to prove in a dram shop action?

Answer 47

1. A business sold alcohol to a minor or someone who was visibly intoxicated at the time and 2. The plaintiff's injuries were a proximate result of that person's intoxication. Common law does not extend liability to social hosts who serve visibly intoxicated guests (some jurisdictions do)

Question 48

A defamatory statement communicated to a third party is privileged when?

Answer 48

The defendant reasonably believes that (1) the statement affects an important interest of the third party and (2) the communication is socially acceptable. The privilege is lost if the defendant knows that the statement is false or recklessly disregards that possibility

Question 49

The physician-patient privilege, if ecognized by state law, applies in afederal diveersity suits unless

Answer 49

(1) the patient's physical condition is at issue (2) the patient-physician communication was part of a crime or tort (3) there is a dispute between the patient and the physician, or (4) the patient contractually waived the privilege

Question 50

What is the implied warranty of fitness for a particular purpose?

Answer 50

Applies when (1) the seller knows the particular purpose for which the product is being purchased and (2) The buyer relies on the seller's judgment or skill in selecting a product suitable for that purpose. Breach of this warranty can give rise to a product liability claim

Question 51

When are we permitted from an inference of negligence unde Res Ipsa Loquitur?

Answer 51

Res Ipsa Loquitor does not permit an inference of negligence when the plaintiff was harmed by a temporary danger that could have arisen immediately before the injury occurred

Question 52

What type of loss can't be claimed for strict products liability?

Answer 52

Claims for purely economic loss, including harm to the effective product itself and consequential damages arising therefrom, are not allowed

Question 53

What is libel? (Think about journalism)

Answer 53

It is defamation by words written, printed, or otherwise recorded in permanent form. A libel plaintiff can recover general damages to compensate the plaintiff for the presumed harm to his/her reputation

Question 54

What can a supplier do, when they did not act negligently, recklessly, or intentionally fail to discover the product defect?

Answer 54

They can recover full compensation (indemnity) from suppliers earlier in the distribution chain

Question 55

What is apparent consent? Defamation

Answer 55

A defense to defamation when the plaintiff's words or conduct were reasonably understood by the defendant to indicate consent to the defamatory communication

Question 56

A plaintiff can only recover for libel when?

Answer 56

If a third party's reasonable interpretation of the defendant's statement would tend to harm the plaintiff's reputation

Question 57

What must be proven in a products liability claim based on negligence, and when is the defendant still liable despite an intervening act?

Answer 57

In a products liability claim based on negligence, the plaintiff must prove that the defendant failed to use reasonable care and that this caused the plaintiff's harm. An intervening act or event does not break the chain of causation if it was reasonably foreseeable.

Question 58

When is proof of harm required for trespass to chattels?

Answer 58

No proof of harm is required if the defendant intentionally dispossesses the plaintiff of the chattel. Proof of harm is required if the defendant intentionally uses or intermeddles with the chattel. Harm can be shown by: 1. Actual harm to the chattel 2. Substantial loss of use 3. Bodily harm to the plaintiff

Question 59

When does an actor have a duty to protect others from third-party harm?

Answer 59

An actor has a duty to use reasonable care to protect others if the actor knows or reasonably should know that their conduct has exposed others to an unreasonable risk of harm from third parties.

Question 60

When can a private individual bring a successful action for public nuisance?

Answer 60

A private individual can prevail in a public nuisance action if they suffer harm different in kind from that suffered by the public at large (i.e., special damages). ➡️ Public nuisance = unreasonable interference with a public right.

Question 61

Libel requires proof that the defendant

Answer 61

(1) knowingly communicated a false statement about the plaintiff to a third party or (2) negligently failed to determine the statement's falsity

Question 62

When does a defendant have an affirmative duty to act in tort law?

Answer 62

🔹 A defendant generally has no duty to act affirmatively to prevent harm. However, a duty may arise when: (1) The defendant’s conduct created a foreseeable risk of harm; or (2) The defendant has a special relationship with the plaintiff (e.g., parent-child, common carrier-passenger, innkeeper-guest). Ex. A website had no duty to prevent a burglary where a third party posted “free stuff” at the victim’s house — no special relationship existed, and the website didn’t create the harm.

Question 63

Is a defendant liable for conversion if they mistakenly believe they had the right to possess the chattel?

Answer 63

🔹 Yes. A mistaken belief that the defendant had a legal right to possess or use the plaintiff’s chattel does not excuse conversion. Conversion is an intentional exercise of dominion or control over another’s property that seriously interferes with their rights — good faith is not a defense. Ex. A landowner and landscaper who mistakenly cut down trees on a neighbor’s property are still liable for conversion, even though they acted under a mistaken belief about the property lines.

Question 64

A court should admit a lay witness's opinion testimony only if it is

Answer 64

(1) rationally based on the witness's perception (2) helpful to clearly understand the witness's testimony or determine a fact in issue, and (3) not based on scientific, technical, or other specialized knowledge Ex.Guys owns stock and can't testify about his opinion why the stock plummeted, wasn't qualified. Opinion is not perception

Question 65

A defendant is privileged to use reasonable force to protect an individual from self harm when:

Answer 65

(1) the individual is unable to understand the nature and consequences of his/her actions and (2) the defendant reasonably believes that the individual is about to commit an act likely to cause death or seriously bodily harm to him/herself Ex. Intoxicated man threatens to jump off the building, bystander pulled man back, and locked him invbedroom until he became sober, then was released. This is okay

Question 66

What is assumption of the risk in traditional common-law negligence cases?

Answer 66

🔹 *Assumption of the risk is a complete defense to negligence in traditional common-law jurisdictions. It bars recovery when the plaintiff: Knew of the specific risk, and Voluntarily accepted the risk that caused the harm.*

Question 67

Does private necessity excuse liability for damages caused during a trespass?

Answer 67

A trespass may be legally excused when it arises from private necessity—i.e., when the entry is (or reasonably appears to be) necessary to protect the trespasser, others, or property from serious harm. However, the trespasser is still liable for any actual damage caused to the property, unless the entry was for the landowner's benefit.

Question 68

When does strict liability apply for harm caused by animals?

Answer 68

Strict liability applies for injuries caused by animals only when the injury results from the animal’s dangerous propensities, which must be: - Known to the owner (for domestic animals), or - Inherent in the species (for wild animals).

Question 69

What is the learned intermediary rule and how does it affect a manufacturer’s duty to warn?

Answer 69

Under the learned intermediary rule, the manufacturer of a prescription drug or medical device satisfies its duty to warn by informing the prescribing physician of the risks, rather than the patient directly. The physician acts as a “learned intermediary” between the manufacturer and patient, deciding whether and how to communicate those risks.

Question 70

What are Good Samaritan laws?

Answer 70

Laws that relieve medical professional of malpractice liability for voluntarily rendering emergency first aid. These laws are designed to encourage medical professionals to provide such assistance without the threat of a lawsuit, but they do not creat a duty to aid

Question 71

What is the effect of contributory negligence under traditional common law rules?

Answer 71

Under traditional common law, contributory negligence is a complete defense to a negligence claim. If the plaintiff failed to exercise reasonable care and that failure contributed to their injury, they are barred from recovery, even if the defendant was also negligent.

Question 72

A product is defective by design if

Answer 72

(1) the design creates a foreseeable risk of physical harm and (2) that risk could have been mitigated by a reasonable alternative design (a safer design available at a reasonable cost)

Question 73

What is the effect of contributory negligence in negligence and strict liability actions?

Answer 73

In contributory negligence jurisdictions, if the plaintiff is found to have been even slightly negligent, it is a complete bar to recovery in a negligence action. However, contributory negligence is not a defense to a strict liability claim (e.g., defective products, abnormally dangerous activities). Exceptions may apply if the plaintiff knowingly and unreasonably encountered a known risk (assumption of risk).

Question 74

The rescue doctrine allows a plaintiff-rescuer to establish a prima facie negligence case by proving that

Answer 74

(1) he/she was injured while attempting to rescue another and (2) that person's peril was caused by the defendant's failure to use reasonable care

Question 75

What are the elements of trade libel?

Answer 75

A defendant may be liable for trade libel if they: 1. Make a false and derogatory statement about the quality of the plaintiff’s business or products, 2. Do so with actual malice, 3. Communicate the statement to a third party, and 4. Know that it will likely cause—and it does cause—the plaintiff to suffer pecuniary loss.

Question 76

When will a defendant not be held liable under negligence per se, even if they violated a statute?

Answer 76

Negligence per se will not apply if the defendant shows: - They were using reasonable care under the circumstances, or - They were incapacitated (e.g., physically unable) while attempting to comply with the statute or ordinance.

Question 77

To which types of claims does the affirmative defense of contributory negligence apply?

Answer 77

Contributory negligence is an affirmative defense that applies only to negligence claims. It does not apply to intentional torts such as battery, assault, false imprisonment, etc.