Torts MEE

Question 1

first things to check (3)

Answer 1

1. intentional torts
2. negligence, OR
3. strict liability

Question 2

negligence overarching rule

Answer 2

to be liable, D must fail to exercise such care as a reasonable person in his position would have exercised, his conduct must be a brach of the duty to prevent foreseeable risk of harm to anyone in P’s position, and this breach must cause P’s damages

Question 3

negligence issues (elements + 2) (7)

Answer 3

1. duty of care
2. standard of care
3. breach
4. causation
5. damages
6. severe emotional distress (bystander) or physical harm from threat of physical harm (direct)? NIED
7. DEFENSES

Question 4

strict liability products liability theories (issues) (3)

Answer 4

1. strict liability by any foreseeable P
2. negligence (similar analysis to ordinary negligence)
3. warranty: analyze presence/absence of express warranty or each type of implied warranty

Question 4

duty of care

Answer 4

Duty is owed to P within foreseeable zone of danger (cardozo majority) vs. everyone (Andrews)

Question 5

strict liability defenses (3)

Answer 5

1. comparative negligence
2. contributory negligence
3. assumption of risk

Question 5

Misc. issues to consider for each call (6)

Answer 5

1. defamation (language adversely affects one’s reputation?)
2. vicarious liability (someone in superior position liable for another’s act?)
3. malicious prosecution (wrongful civil proceedings), abuse of process (someone suing w/o good reason?)
4. fraudulent/negligent misrep, fraudulent nondisclosure (reliance on misleading statement?)
5. private nuisance/public nuisance (some harm caused by interference with enjoyment or safety?)
6. privacy torts (some information about a person disclosed or used?)

Question 5

Standard of care

Answer 5

no special relationship? reasonable care. statute? negligence per se. Business/landowner?

Question 6

breach

Answer 6

use as applicable–unreasonable conduct (hand formula), violation of statute, or res ipsa loquitur

Question 7

Causation

Answer 7

actual cause (in fact) + proximate cause. Use joint and several liability for multiple D indivisible injury.

Question 8

negligence defenses (4)

Answer 8

1. duty to mitigate damages
2. comparative negligence
3. contributory negligence
4. assumption of risk

Question 9

strict liability to consider (4)

Answer 9

1. D handled animals? wild v domestic
2. D handled dangerous materials or activities (e.g., chemicals, explosives)? abnormally dangerous activity
3. consumer product involved? products liability
4. DEFENSES