Torts MBE Flashcards
(44 cards)
What is needed for a claim of negligence?
The plaintiff must prove duty, breach, causation, and harm
What is the general standard of duty that a person has?
The reasonably prudent person standard
What standard is used to determine a child’s duty?
Use a subjective standard. Look at the intelligence, age, and experience of the child.
What standard is used to determine a child’s duty engaged in adult activity?
Use the reasonably prudent person standard
What is the duty of someone with physical impairments?
Reasonable person standard but take into account if the defendant is physically impaired
What is negligence per se
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
What is custom?
This is usually evidence of a duty of care for industry.
For malpractice cases, it is conclusive evidence
Do we have a duty to third parties?
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
What duty of care does a landowner have to an undiscovered
No duty of care is owed. However, the landowner cannot act wantonly or willfully
What is the duty of care that a landowner has to a discovered trespasser
The premise possessor must warn of or make safe unreasonably dangerous artificial conditions that it knows of
What duty of care does a landowner have towards a licensee (social guest)
The premises’ possessor must warn of or make safe all concealed dangers that it knows of
What duty of care does a landowner have towards an invitee (one who enters a public place or business)
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
What needs to be shown for a breach?
A plaintiff must show that the defendant breached its duty of care
What is res ipsa loquitor
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
What does it mean if the plaintiff can show res ipsa loquitor?
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
Wht are the two types of causation that must be present
Actual cause (but for cause) and proximate cause
What is “multiple causes” when determining causation
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
What are alternative causes? (causation)
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
What are the elements of negligent infliction of emotional damage?
(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
What is assault?
Defendant acts with intent to cause a harmful or offensive contact (or imminent apprehension), and an imminent apprehension directly or indirectly results
What is comparative negligence?
A judge or jury compares the plaintiff’s fault with the defendant’s fault and assigns percentages to each
What is pure comparative negligence?
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
What is partial (modified) comparative negligence?
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
What is contributory negligence?
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
