Torts MBE & MEE Review

Question 1

Landowner’s duty to known or anticipated trespassers

Answer 1

Limited Duty to:
-warn the trespasser of hidden, artificial (i.e., man-made) conditions that are known to the land possessor but unlikely to be discovered by the trespasser and

-use reasonable care while conducting activities on their land.

Question 2

In a private nuisance claim, must the plaintiff be bothered by the defendant’s conduct to prevail?

Answer 2

No.

Liability for private nuisance arises when a defendant’s interference with the use and enjoyment of the plaintiff’s property is both:

substantial – offensive, annoying, or intolerable to a normal person in the community and
unreasonable – effectively renders the land unavailable for ordinary use or enjoyment by the possessor and satisfies certain criteria.

Therefore, a plaintiff who is not bothered by an interference with the use and enjoyment of his/her property can still prevail so long as a normal person in the community would find the interference offensive, annoying, or intolerable (i.e., the interference is still substantial).

Question 3

Strict liability for domesticated animals

Answer 3

The owner of a domestic animal (e.g., rooster) is generally not strictly liable (i.e., liable without proof of fault) for any physical harm caused by the animal. However, strict liability will be imposed when:

the owner knew or had reason to know about the domestic animal's dangerous propensities (i.e., behavior uncommon for its species) and

the plaintiff's harm arose from those dangerous propensities.

Question 4

IIED when plaintiff’s distress stems from a third party

Answer 4

Intentional infliction of emotional distress (IIED) requires proof that the defendant was at least reckless as to the risk that his/her extreme and outrageous conduct would cause the plaintiff severe emotional distress. To establish this element in cases where the plaintiff’s distress stems from conduct that physically or emotionally harmed a third party, the plaintiff must generally prove the following facts:

The plaintiff contemporaneously perceived (i.e., saw or overheard) the defendant's conduct.
The plaintiff was a close relative (i.e., immediate family member) of the harmed third party.

Question 5

Scope of Defendant’s Duty of Care

Answer 5

Cardozo View (Majority Rule): Duty owed only to persons who might be foreseeably harmed as a result of defendant’s negligence (ie, persons within zone of foreseeable harm)

Andrews View (Minority Rule): Duty owed to everyone on earth if anyone might be foreseeably harmed as a result of defendant’s negligence

Question 6

NIED

Answer 6

Negligent infliction of emotional distress (NIED) liability arises under the zone-of-danger theory when (1) the defendant negligently placed the plaintiff at risk of immediate bodily injury and (2) that risk caused the plaintiff serious emotional harm

Question 7

Learned-Intermediary Rule

Answer 7

However, under the learned-intermediary rule, a prescription drug or medical device is not defective due to inadequate warnings or instructions when its manufacturer warned the prescribing physician about the risk of harm associated with that product. When this occurs, the manufacturer will not be held strictly liable for any harm caused by the product because the physician is expected to convey the manufacturer’s warning to the product’s user.

Question 8

Merchant’s Privilege

Answer 8

In most jurisdictions, a defendant is not liable for false imprisonment when the merchant’s privilege applies. This privilege applies when:

the defendant is a merchant or a merchant's employee or agent

the defendant reasonably believes that the plaintiff has wrongfully taken or is attempting to take merchandise from its premises or failed to pay for personal property or services rendered there

detainment occurs on, or in the immediate vicinity of, the merchant's premises and

detainment is conducted for a reasonable amount of time and in a reasonable manner to investigate the matter, recapture the property, or facilitate the plaintiff's arrest.

Question 9

Affirmative Duty to Act

Answer 9

Although a defendant generally has no affirmative duty to act, such a duty arises when (1) the defendant’s conduct creates a foreseeable risk of harm to the plaintiff or (2) the defendant voluntarily aids or rescues the plaintiff. When this occurs, the defendant must use reasonable care to prevent further harm to the plaintiff.

Question 10

Guest Statutes

Answer 10

A minority of jurisdictions have enacted “guest statutes.” Under these statutes, the only duty that automobile drivers owe to their guests is to refrain from gross or wanton and willful (i.e., reckless) misconduct. As a result, a plaintiff-guest can recover damages from a defendant-driver under a guest statute if the driver’s reckless behavior caused the guest’s injuries.

Question 11

Negligence Per Se

Answer 11

Under the doctrine of negligence per se, the majority approach is that duty and breach can be conclusively presumed if:

the defendant violated a statute or ordinance

that statute or ordinance was intended to prevent the type of harm suffered by the plaintiff and

the plaintiff is within a class of persons that the statute or ordinance was intended to protect.

However, under the minority approach, the violation of a statute or ordinance is merely evidence of negligence that creates a rebuttable presumption that the defendant breached a duty of care.

Question 12

Intentional Interference with a Contract

Answer 12

To prevail on a claim for intentional interference with a contract, a plaintiff must prove that:

1) a valid contract existed between the plaintiff and a third party

2) the defendant knew of that contractual relationship

3) the defendant intentionally and improperly interfered with the contract’s performance and

4) that inteference caused the plaintiff pecuniary (monetary) loss.

Question 13

Intentional Torts under Respondeat Superior

Answer 13

Under the doctrine of respondeat superior, an employer is vicariously liable for its employee’s intentional torts only when (1) reasonable force is inherent in and committed during the employee’s job or (2) the employee is authorized to act on the employer’s behalf and has a position that provides an opportunity to commit the tort.

Question 14

Duty to Trespassers under the Modern Approach

Answer 14

Under the modern approach, land possessors owe all land entrants—except flagrant trespassers—a duty of reasonable care to protect them from foreseeable risk of harm. 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 15

Standard of care for involuntary intoxication

Answer 15

The conduct of a defendant who is involuntarily intoxicated will be measured by the standard of a reasonably careful person with the same level of intoxication.

Question 16

Informed Consent Doctrine

Answer 16

Physicians have a duty to disclose the risks of a medical procedure or treatment to a patient in advance so that the patient can give informed consent to the procedure or treatment. In most jurisdictions, the required level of disclosure is governed by custom among physicians. Failure to make the required disclosure breaches the standard of care owed by a physician to his/her patient and subjects the physician to negligence liability if:

the failure to disclose caused the patient to consent to the treatment or procedure (i.e., the patient would not have done so had the risk been disclosed) and 

the undisclosed risk materialized and caused the patient physical harm.

Question 17

Intrusion upon seclusion

Answer 17

Intrusion upon seclusion is an invasion of privacy that occurs when a defendant intentionally intrudes on a plaintiff’s private affairs in a manner that would be highly offensive to a reasonable person—e.g., hacking into an email account.

Question 18

Public disclosure of private facts

Answer 18

A privacy claim for the public disclosure of private facts requires that the private matter be publicized—i.e., communicated to the public at large or to so many people that it is substantially certain to become public knowledge.

Question 19

Recovery of Compensatory Damages (Negligence Claim)

Answer 19

In a negligence action, 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. But the plaintiff’s actions prior to the defendant’s negligent act are not a factor in determining damages.

Question 20

Parent’s liability for their children

Answer 20

Negligence: 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.

Vicarious Liability:
-If child acts as parent’s agent (trespasses on stranger’s lawn while working for parent’s landscaping company)
-State statute imposes liability on parent for a specific act

Question 21

Last Clear Chance Doctrine

Answer 21

In contributory-negligence jurisdictions, plaintiff may mitigate legal consequence of contributory negligence if defendant had last clear chance to avoid injuring plaintiff but failed to do so

Question 22

Traditional rule for land owner liability to trespassers

Answer 22

A land possessor owes a duty of reasonable care to foreseeable plaintiffs who enter the land. But under the traditional approach, a land possessor generally owes no duty to trespassers—i.e., persons who intentionally enter another’s land without permission—unless the land possessor knows of or has reason to anticipate their presence.

Question 23

Traditional rule of land owner liability to licensees

Answer 23

land possessor owes licensees a duty to (1) warn about concealed dangers that are known or should be obvious to the land possessor and (2) use reasonable care in active operations conducted on the land.

Question 24

Joint and Several Liability

Answer 24

Joint and several liability arises when two or more defendants were negligent and any one of them could have caused the plaintiff’s indivisible harm. This allows the plaintiff to recover the full amount of damages from any of the negligent defendants, even if it is impossible to prove which one actually caused the harm.* However, the plaintiff must first prove that each defendant was negligent.

Question 25

Several Liability

Answer 25

Each tortfeasor is liable for portion of damages corresponding to his/her proportionate fault (eg, 15% of damages for 15% fault)

Question 26

Indemnity for vicarious liability

Answer 26

Under the doctrine of respondeat superior, an employer is vicariously liable for any tort committed by its employee while acting within the scope of the employment relationship (as seen here). But when the employee's liability has been discharged by the employer—e.g., payment of a judgment for damages—the employer can seek indemnity (i.e., full compensation) from the employee for its loss. Unless the employer agreed to indemnify the employee for liability within the scope of work.

Question 27

Rescue Doctrine

Answer 27

Under the rescue doctrine, persons who negligently endanger themselves or others are liable for injuries sustained by rescuers. But the rescue doctrine is limited by the firefighter's rule, which applies to all professional rescuers (e.g., firefighters, police officers). This rule bars professional rescuers from recovering for harm that resulted from the special dangers of their jobs—e.g., a firefighter extinguishing a fire. However, the firefighter's rule does not bar recovery for harm that resulted from a land possessor's failure to warn professional rescuers about concealed dangers known to the land possessor. That is because professional rescuers are considered licensees. As a result, a land possessor who breaches this duty and causes the professional rescuer physical harm is liable for negligence.

Question 28

Risk-Utility Test (Strict Product Liability)

Answer 28

Under the risk-utility test, a product is defective by design when: the design creates a foreseeable risk of physical harm and that risk could have been mitigated by a reasonable alternative design (e.g., a modification that reduces the risk for a reasonable cost).

Question 29

Intentional Misrepresentation

Answer 29

To establish a prima facie case of intentional misrepresentation (i.e., fraud or deceit), the plaintiff must show that: the defendant knowingly or recklessly misrepresented a material fact with the intent to induce the plaintiff's reliance and the plaintiff reasonably relied on the misrepresentation and suffered pecuniary loss (i.e., monetary loss) as a result.

Question 30

Vicarious Liability & Independent Contractors

Answer 30

A person who hires an independent contractor is generally not vicariously liable for torts committed by the independent contractor. However, vicarious liability will be imposed when the independent contractor's work involved a nondelegable duty, such as when the independent contractor performed an abnormally dangerous activity.

Question 31

Establishing a profession's applicable standard of care

Answer 31

Establishing a profession's applicable standard of care—and a defendant's deviation from that standard—typically requires expert testimony. But when the defendant's negligence is so apparent that a lay person could identify it—as seen here with the contractor's use of rotten wood and rusted brackets—expert testimony is not required

Question 32

Risk utility test for design defect

Answer 32

Under the risk-utility test, a product is defective by design when: ● the design creates a foreseeable risk of harm and ● that risk could have been mitigated by a reasonable alternative design (e.g., a modification that reduces the risk for a reasonable cost).

Question 33

Liability for Intrusion by Livestock

Answer 33

The owner of an animal—other than a dog or cat—that intrudes upon another's land is strictly liable for any reasonably foreseeable harm or damage caused by that intrusion (e.g., consumption of vegetation).* Here, the herder is the owner of the goats, so strict liability will be imposed upon the herder for damage to the neighbor's property caused by the goats (Choice D). However, strict liability does not extend to the owner of the land on which the trespassing animals were kept—unless the landowner also had the right to possess the animals.

Question 34

Can a plaintiff recover for negligence without personal injury or property damage?

Answer 34

NO Under a negligence theory, the plaintiff can recover damages resulting from any personal injury or damage to property. However, a claim for purely economic loss is not allowed.

Question 35

Intentional interference with a contract

Answer 35

To prevail on a claim for intentional interference with a contract, a plaintiff must prove that: a valid contract existed between the plaintiff and a third party the defendant knew of that contractual relationship the defendant intentionally and improperly interfered with the contract's performance and that interference caused the plaintiff pecuniary (monetary) loss. The plaintiff's pecuniary loss need not be substantial for it to prevail on an intentional interference with contract claim. A showing of any pecuniary loss is sufficient.

Question 36

Unreasonable Standard for Private Nuisance

Answer 36

A private nuisance claim requires the plaintiff to prove that the defendant's interference with the use and enjoyment of the plaintiff's property was substantial and unreasonable. An interference is unreasonable if it effectively renders the land unavailable for ordinary use or enjoyment by the possessor and satisfies certain criteria.

Question 37

Negligent Misrepresentation

Answer 37

Negligent misrepresentation is based upon a breach of the duty to supply correct information and often arises in the context of accountants and other suppliers of commercial information (e.g., attorneys). This tort requires proof of the following elements: The defendant negligently provided false information during the course of his/her business or profession. The plaintiff justifiably relied upon the false information and suffered pecuniary (i.e., financial) loss as a result. The plaintiff was in a contractual relationship with the defendant or was a third party known by the defendant as one for whose benefit the information was supplied. However, a defendant who negligently provides information for a particular purpose is not liable for the plaintiff's financial loss if the plaintiff used the information for a different purpose.

Question 38

What is required to sue on breach of warranty?

Answer 38

Plaintiff must establish privity of contract with defendant