2011 Mbe Torts

Front 1

Checklist for every torts question:

Back 1

1. Who is the plaintiff?
2. Who is the defendant/who are the defendants? Who are the responsible parties?
3. What is the plaintiff’s injury or injuries?
4. What legal theory/theories can the plaintiff assert?
5. Be certain that it is a torts question

Front 2

Voluntary Act

Back 2

a D is not liable in tort for acts that are not voluntary. Acts are not voluntary if they are a product of pure reflex or if the D is unconscious when the act is performed.

Front 3

Intent Generally

Back 3

a. For most intentional torts, intent is established if the defendant either:
(1) D desires that his act will cause the harmful result described by the tort


(2) D knows that it is substantially certain that such a result will occur.
- P has to prove that D actually knew the substantial certainty of the act.

Front 4

Causation in Intentiona Torts

Back 4

a. the defendants act or a force set in motion by that act must cause the P injury.

Front 5

Harm

Back 5

Ways to establish harm in intentional torts:
(1) Establishing the elements of the Tort is enough to recover damages


(2) Plaintiff will have to prove specific injury

Front 6

Battery Definition and Elements

Back 6

1. A battery arises where:
The defendant intends to cause a harmful or offensive touching

a.Elements:
(1) Intent


(2) Harmful or offensive contact


(3) with a person or something closely connected to that person.

Front 7

To establish intent, plaintiff has to show either:

Back 7

a. D desired there be contact


b. D knew that contact was substantially certain to result from her conduct.
c. Be sure to distinguish intent from motive.

Front 8

Transferred Intent

Back 8

you’ve got the wrong victim. You intend that harmful touching of one but miss and harm two, under transferred intent two may sue you for battery because the intent to harm one is transferred to two.

Front 9

The harmful or offensive contact element is satisfied if:

Back 9

Any amount of physical discomfort is enough.
a. Any contact that would be offensive to a reasonable person is enough for battery.
(1) If defendant knows the particular susceptibility of the plaintiff:
And then proceeds regardless of that susceptibility the D will be liable.

b. It is sufficient for a battery if defendant causes a contact with something close to plaintiff.
Unlike assault, plaintiff need not be aware of the contact.

Front 10

Assault Definition and Elements

Back 10

An assault arises where:
An intentional act that cause the plaintiff to experience a reasonable apprehension of an immediate harmful or offensive contact.


a. Elements:
(1) Intent


(2) Reasonable Apprehension


(3) Imminent Battery

Front 11

To prove intent under Assault cause of action:

Back 11

To prove intent, defendant must:
a. D had the purpose to create apprehension in P


b. D knew that apprehension was substantially likely to reslut


c. Transferred intent

Front 12

Reasonable apprehension of Assault:

Back 12

P must actually suffer reasonable apprehension of an imminent battery. The P must know the battery is imminent to occur.

Front 13

Imminence requirement under assault:

Back 13

Must be absolutely imminent. Battery must be able to be carried out almost instantaneously.
- Words will rarely satisfy the imminence requirement. They must be an intentional threat of an imminent battery.

Front 14

False Imprisonment Definition and Elements

Back 14

1. False imprisonment arises where:
The D intentionally confines the P into a bounded area against the P’s consent and the P is aware of the confinement or harmed


a. Elements:
(1) Intent


(2) Confinement


(3) Against the P’s will


(4) P knows of the confinement or is injured thereby

Front 15

Defendant has the requisite intent for false imprisonment if he:

Back 15

a. Desires to confine or restrain the P


b. knows that such confinement is virtually certain to occur.


c. Motive is irrelevant.

Front 16

Confinement in false imprisonment

Back 16

Must be confined in a defined area. May be physical barriers, by failing to release a P where D had a legal duty to do so, by the invalid assertion of legal authority


a. No duration of confinement is required:
A very brief confinement will satisfy confinement (3 minutes)


b. Confinement generally occurs by:
failing to release a plaintiff when the D has a duty to release

1) Threats of reputational harm are generally insufficient.

If plaintiff knows of a reasonable means of escape:
There will be no confinement. The P must know about this.

(1) Risk of embarrassment is not a reasonable means of escape.

- Plaintiff cannot consent to the confinement.

Front 17

Harm or Damages in False Imprisonment

Back 17

If the plaintiff is aware she is being confined:
plaintiff is entitled to whatever damages the jury thinks is appropriate


b. If the plaintiff is not aware that she is being confined:
she must suffer actual harm

Front 18

Intentional Infliction of Emotional Distress definition and elements:

Back 18

An intentional or reckless act amounting to extreme and outrageous conduct that causes the plaintiff severe mental distress.


a. Elements
(1) Intentional or Reckless


(2) Extreme and outrageous


(3) Causation


(4) Severe Emotional Distress.

Front 19

Mental State required for IIED

Back 19

Defendant must act with intent to cause severe mental distress or be reckless in creating the risk of emotional distress.
a. Intentional:
(1) D must act with intent to cause severe mental distress


(2) Or D knew it was substantially certain to occur

b. Recklessness: The D consciously disregards a high risk of emotional distress.

Front 20

No transferred intent doctrine under IIED but:

Back 20

because the mental state is broader and includes recklessness where third parties are able to recover under IIED where the P can prove the D was reckless.

Front 21

Under IIED the element of extreme and outrageous conduct is satisfied if:

Back 21

Conduct that exceeds all bounds of acceptable activity in a civilized society

a. Offensive or insulting language is generally not considered outrageous.

EXCEPTIONS:
(1) where the D is engaged in certain activites (inn keeper, common carrier) if those ppl engage in reasonably offensive conduct.

(2) Where the D knows of the P’s particular susceptibility

(3) Applies where someone in a position of authority uses racial or ethnic insult towards an underling.

Front 22

Severe emotional distress under IIED

Back 22

a.Plaintiff does not have to prove:
physical injury

b. Plaintiff simply has to prove:
severe emotional distress. P must put on proof of non-trivial emotional distress

Front 23

Trespass to Land Definition and Elements

Back 23

1. Trespass to land is:
An intentional act that causes damage to the plaintiff’s property


a. Elements:
(1) Intent
(2) entry
(3) onto the plaintiffs land

Front 24

To establish intent for Trespass to Land, plaintiff needs to show that

Back 24

a. P show the D desired to enter the land


b. D knew that land entry on to land owned by the P is virtually certain to occur.

- It is not the intent to trespass, but the intent to enter the land that is controlling. Mistake DOES NOT matter.

Front 25

Element of Entry is satisfied in Trespass to Land when:

Back 25

Satisfied if the D enters the land or causes another to enter or damage the land

Front 26

Who may bring suit for Trespass to Land?

Back 26

anyone in possession of the land may bring an action for trespass. (tenant, true owner, adverse possessor)

Front 27

Remedies for Trespass to Land

Back 27

Three types of remedies in tort:
(1)Nominal Damages (rare)

(a) Recoverable only were D trespasses but causes no actual damage

(2) Restitutionary Damages
(a) Prevents unjust enrichment

(3) Equitable Remedies
(a) Injunction.

Front 28

Trespass to Chattels definition and elements

Back 28

Trespass to chattels arises where:
The D intentionally intermeddles with the personal property of the plaintiff


a. Elements:
(1) intent
(2) interference
(3) plaintiffs chattel
(4) Harm

Front 29

Intent under Trespass to Chattels

Back 29

The D intentionally performs the physical act that interferes with the plaintiff’s chattel

Conduct giving rise to trespass to chattels:
Must be more than trivial harm. There must be significant disposition.

Front 30

Remedies under Trespass to Chattles

Back 30

Remedies:
(1) damages

(2) Replevin: arises to get back personal property that has been dispossessed

Front 31

Conversion Definition and Elements

Back 31

Conversion arises where:
The D intentionally exercises dominion of control over the P’s property that amounst to a serious and substantial interference

a. Elements:
(1) Intent

(2) Dominion or Control

(3) Substantial Interference.

Front 32

Intent under Conversion.

Back 32

mistake is no defense. Intent satisfied when the intentional act takes place.

Front 33

Remedies and damages under Conversion

Back 33

(1) Typical remedy is forced sale: converter is typically required to pay the fair market value of the chattel at the time it was converted.

(2) Replevin: restitutionary action to get back personal property.

Front 34

Defenses and Privileges to Intentional Torts neumonic POPCANS

Back 34

Privilege
Others
Property
Consent
Authority
Necessity
Self-defense

Front 35

Consent as a defense to intentional torts

Back 35

a. If the plaintiff does consent:
there can be no recovery for any intentional tort


b. Plaintiff can manifest consent expressly, by implication, or as a matter of law.

(1) Express consent exists where:
A plaintiff affirmatively communicates permission for the defendant to act.
(2) Implied consent arises where:
Under circumstances where a reasonable person would interpret plaintiffs conduct as evidencing permission to act.

Front 36

Consent may be found as a matter of law when

Back 36

1) a emergency action is required to prevent death or serious injury
2) reasonable person would be expected to consent under the circumstances
3) no reason exists to beleive that plaintiff would not consent.

Front 37

Mistaken Consent

Back 37

Consent is not effective if:
1) it is the product of a mistake of fact or law as to the nature or consequences of the D’s act
2) D is aware of the mistake.

Front 38

Self-Defense as a defense to intentional torts

Back 38

Arises where:
a D is charged with an intentional tort may defend on grounds that she used reasonable force to prevent plaintiff from engaging in an imminent and unprivileged attack.

(1) Defendant only need be reasonable and must respond with proportionate force.
b. Once the threat is over: then Self Defense is not available.
The force used must be proportionate to the threat:
(1) cannot use more force than is threatened
(2) Retreat:
(a) no duty to retreat, even if retreat is possible.
(b) never any duty to retreat from ones home.

Front 39

Defense of Others as a Defense to an Intentional Tort

Back 39

A D is entitled to use reasonable force to prevent plaintiff from committing a tort agaisnt a third party to the exent the third party would be entitled to defend their self.

Front 40

Defense of Property as a Defense to an Intentional Tort

Back 40

a defendant may take reasonable steps to defend person or real property but NEVER deadly force.

b. A defendant may never use deadly force to protect personal or real property.
(1) look for situations that look like defense of property but escalates into a defense of persons.
c. One may use reasonable force to eject a trespasser from personal property after asking them to leave.
d. Recapture of chattels: provides that one may use reasonable non deadly force to get back one’s personal property provided you have asked for the property back and you are in hot pursuit.

Front 41

Necessity as a defense to intetional tort

Back 41

Defendant is entitled to injure a plaintiffs property if this is reasonably necessary to avoid a substantially greater harm to him, the public or his property

Public necessity:
arises when D is acting to protect the public from severe harm.

Private necessity:
where the D commits an intentional tort and alleges it was better to commit that tort than to suffer the likely consequences.

Front 42

Use of Authority as a defense to an intetional tort

Back 42

Felony:
Police Officer: reasonably believe the person has committed a felony
Private:

(2) Misdemeanor:
Police: only for misdemeanors that constitute a breach of the peace

(3) Private individuals:
act at our own peril. If we are wrong the citizen is liable.

Front 43

Shopkeeper’s Privilege

Back 43

if a store owner has a reasonable suspicion that someone has shoplifted the shop keeper may detain that person for a reasonable time if they conduct their investigation in a reasonable manner.

Front 44

Discipline as a defense to intentional torts

Back 44

if a defendant is charged with maintaining discipline he may use reasonable force to perform this duty.
- parents and teachers

Front 45

Elements of Negligence and the definitions (6)

Back 45

a. Duty:
an obligation recognized by law requiring the D to conform to a certain standard of conduct for the protection of others against unreasonable risk of harm.
b. Standard of Care:
the measure of the duty owed. What is expected of the D?

c.Breach of Duty:
The failure to meet the standard of care

d. Cause in Fact:
connecting the P injury to the D act

e. Proximate Cause:
are there policy reasons to cut off liability?

f.Damages:
P must prove damages to recover

g.Defenses
Always consider what defense the D may raise

Front 46

General duty rule in Negligence

Back 46

Applies in most cases. That when the D is engaged in affirmative risk creating conduct causing personal injury or property damage a duty is owed to a foreseeable plaintiff.


a. Duty is a significant issue where there is:
(1) Unforeseeable plaintiff

(2) Failure to Act

(3) Harm other than personal injury or property damage

(4) D is a land possessor (landlord, utility, governmental entity)

Front 47

Duty owed to Unforeseeable plaintiffs

Back 47

In the famous Palsgraf case, Justice Cardozo articulated the rule that:
no duty is owed to unforeseeable plaintiffs.

Front 48

Nonfeasance:

Back 48

Nonfeasance begins with the assumption that there is no duty at all.
(1)Duty to rescue or aid
a)EXCEPTIONS:
1)Where the D’s tortious conduct creates the need for rescue.
2) Under taking to act. If a person choses to rescue another that person must act reasonably.
a) Some jurisdictions say you are only liable if you leave the defendant in a worse position.
b) Good Samaritan statutes: those who do rescue others aren’t liable for their negligence, they will have to be grossly negligent or reckless
3) Reliance:
D is liable when D creates reliance in the P that she will aid.
4)Special Relationship:
- Relationship of special significance. Parents, Common Carrier and Passenger, Inn Keeper, Captain of a ship and Passenger.

Front 49

Duty to Control Third Parties

Back 49

(a) There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another.
(b)EXCEPTION:
Unless there is a special relationship between the parties.
(c) Providers of alcohol
1)Traditional rule:
A social host or commercial establishment that provided alcohol had no duty to injured third parties

Front 50

Dram Shop Acts:

Back 50

Impose liability on commercial establishments who serve alcohol to someone they know or should have known was drunk when that person drives and injures a third party as a result of their intoxication

Front 51

Negligent entrustment

Back 51

Duty owed to any foreseeable plaintiff. D gives something to someone the D knows is incapable of handling the dangerous object.

Front 52

Duty to Protect third parties

Back 52

one generally has not duty to take affirmative steps to protect another from third party criminal attacks. Absent an exception

(b)EXCEPTIONS:
1)Special Relationships –plus- a high level of foreseeability in order to find a duty. Most likely P will need to show prior similar criminal instances.

Front 53

When the defendant is a governmental entity, the question of whether the defendant owes a duty to the plaintiff will depend on the function the government is fulfilling that gives rise to the cause of action.

Back 53

a.Proprietary function:
(1) government is behaving as a private actor
b. Discretionary activity:
(1) decision that involves judgment and resource allocation on the part of the governmental D.
(2)courts are very reluctant to impose a duty on the governmental defendant.
c.Ministerial function:
(1)once a decision has been made, has the government made an error in implementing the decision

Front 54

Public duty doctrine:

Back 54

When a government agency (e.g., police, fire department) is sued for failing to provide an adequate response, courts will find no duty.
(a)EXCEPTIONS:
1) there has been reliance on the response of the agency

2) there is a special relationship between the plaintiff and agency
3) the agency has increased the danger beyond what would otherwise exist.

Front 55

If the defendant is a utility what duty is imposed?

Back 55

courts have refused to impose duties on a utility unless the parties are in privity of contract. P must have pre-existing rel.

Front 56

Emotional Distress

Back 56

(1) Pure emotional distress requires special duty rules and the courts are reluctant to allow recovery.

(2) courts are reluctant to allow liability for emotional distress, pure economic loss, birth of a child. Special duty rules apply.

Front 57

Direct Actions are needed for recovery for Emotional Distress

Back 57

In most jurisdictions, to recover for emotional distress the plaintiff must:
1) been inside the Zone of Danger—area in which he was at risk of being injured

2) have suffered some accompanying physical manifestation of the emotional distress
EXCEPTIONS:
a) if the D negligently transmits a telegram announcing the death of a loved one.

b) if D negligently mishandles a corpse.

Front 58

Duty to Bystanders in Emotional Distress Cases

Back 58

The physical harm occurs to a loved one, and the plaintiff sues for his emotional distress as a result of the injury to another

(a)Many jurisdictions require the bystander to have been in the zone of danger.
Some jurisdictions allow plaintiffs outside the zone of danger but on the scene of the injury to recover for emotional distress.
EXAM TIP:
On the MBE, this is usually a wrong answer due to the jurisdictional splits.

Front 59

Wrongful Conception, Wrongful Birth, Wrongful Life

Back 59

(1) Wrongful conception applies where the injury is:
The birth of a healthy child

(a) Damages typically involve:
The cost of the birth and cost to rectify the ineffective contraception

(2)Wrongful birth is:
The claim for the parents for the birth of an unhealthy child.

(a) Wrongful birth claims generally stem from:
A physicians failure to diagnose a disability in the fetus, which plaintiff claim would have led her to abort the pregnancy.

(b) Damages:
Maybe the extraordinary costs of having a disabled child.
(3) Wrongful life is:
The child’s actions for having been born unhealthy. Most courts will not award damages.

Front 60

An invitee is

Back 60

A person who enters onto defendants land at D’s express or implied invitation, and who enters for a purpose related to the D’s interests or activities.

- Business Invitee: enters the D’s land for some reason in connection to the D’s business

-Public Invitee: enters the D’s land because the land is held open to the public

(b) Defendant has a duty to exercise reasonable care to prevent injuries to invitees caused by activities conducted on his land.

Front 61

A licensee is

Back 61

A person who enters onto D’s land with D’s express or implied consent who does not enter the D’s land for reason of conferring an economic benefit or D’s activities

Land possessors must warn licensees of:Known concealed dangers.

Front 62

Landowner Duty to Unknown Trespassers:

Back 62

No duty of care is owed

Front 63

Landowner Duty to Known Trespassers

Back 63

If a D knows a P is trespassing or should know the P is trespassing, the plaintif is regarded as a known trespasser.

Duty Owed: landowner must evercise reasonable care to protect a known trespasser from inuries derived from activity conducted on his land.

Front 64

Landowners Duty to Frequent Trespassers

Back 64

If a D knows or reasonable should know that trespassers frequent his propety those trespassers are owed the same duty as known trespassers.

Front 65

Child Trespassers (Attractive Nuisance Doctrine)

Back 65

(a) If the conditions apply, even though there is a trespassing child, the child will be treated like an invitee.
(b) Five factors:
1)Are Kids too young to appreciate the danger?
2) Is it foreseeable that there will be trespassing children?

3) Does the D know of the dangerous condition on the property?

4) Only applies to artificial conditions.

5) The risk of danger of the artificial condition outweighs its utility?

Front 66

Plaintiffs Not on the Land (but adjacent to it)

Back 66

(1) Artificial condition on the land:
There is a duty of reasonable care

(2) Natural condition on the land:
There is no duty unless it’s a tree in an urban area.

Front 67

Landlords are not liable unless

Back 67

(a) a common area that the LL retains control over.

(b) negligent repairs undertaken by the LL.

(c) known hidden dangerous defect on the property at the time the property is leased until such time as the P should have discovered the dangerous condition

(d)Where the LL knows that the property is going to be held open to the public by the T, the LL has duty of reasonable care to repair hidden defects.

Front 68

Reasonably Prudent Person Under the Same or Similar Circumstances

Back 68

Objective standard of care:
The defendant breaches his standard of care when he fails to act as a reasonable and prudent person in similar circumstances. This is question of fact for the jury.

b. Must determine what circumstances are relevant.
1) Defendant must rise up to the level of the average person in the community.
(2)We do not consider:
The D’s mental deficiency’s

(3) We do take into account:
(a) Physical Conditions: such as being blind or losing a leg. Reasonably prudent person with that physical impairment.

(b) emergency. If the D is acting in the context of an emergency not of her own making.

Front 69

Analysis of the breach is:
Failure to act as a reasonably prudent person:

Back 69

(1)What’s the D’s specific unreasonable conduct?

(2)What is the probability of harm?

(3)What is the likely injury going to be?

(4)What would it take for the defendant to behave differently?

Front 70

Children's Reasonable and Prudent Person Standard

Back 70

The reasonable person standard specifically takes account of age when defendant is a minor
.
b.Majority of jurisdictions: a minor defendants conduct is assessed according to what a reasonable child of the same age, experience and intelligence would have done.

EXCEPTION:
If the child is engaged in an inherently dangerous or adult activity we are going to treat that child as a reasonably prudent person (adult)

Front 71

Negligence Per Se

Back 71

Negligence per se: Court is taking a criminal law or regulation and using it to set the standard of care in a civil case.

(1) When determining whether the statute should apply, a judge considers:

(1) Is the P in the class that the statute was designed to protect


(2) Was the statute designed to protect against the kind of harm suffered by the plaintiff?

Situations in which the statute standard will not apply:

(a) if complying with the statute would have produced greater harm than the produced harm

(b) would have been impossible.

Front 72

Professionals Duty of Care

Back 72

For lawyers, doctors, accountants and architects, courts will defer to the profession:
Courts will defer to the profession. The customary practice of the profession becomes the standard of care.
- Deviation from this custom gives rise to breach

Front 73

Duty of Care in Medical Malpractice:

Back 73

Doctors are required to possess and use the knowledge skill and training of other doctors in good standing in the relevant locality.

(a) Specialists: national focus

(b) General practitioners: same or similar locality

Front 74

Lack of informed consent:

Back 74

(1) D-Doc must inform patient of all risks and alternatives
(2) Traditionally, doctors must divulge those risks that are customarily divulged.
(3) standard of materiality: requiring doctors to divulge all risks that a reasonable patient would want to know when deciding to go forward with surgery

Front 75

Breach of Duty in Slip and Fall Cases

Back 75

For plaintiff to recover:
Where she is in the D’s business and falls. She can only recover if she shows the D was negligent in failing to discover and remedy the dangerous condition.

Front 76

Res ipsa loquitor (“the thing speaks for itself”)

Back 76

arises when you look at a fact pattern and you cant tell what the D did wrong but the situation smells like negligence.

- When things fall out of the sky or something nasty ends up in a can.

(b) Plaintiff needs to show:
1) when this sort of thing happens it is typically because of negligence
2) the defendant has control of the harm causing implement

3) plaintiff was not responsible for the event that caused the injury

Front 77

Exclusive control in Res Ipsa Loquitor

Back 77

All you have to show is that the negligence probably occurred with the responsible party

Front 78

Res Ipsa Loquitor in Medical Malpractice Cases

Back 78

1)Common Knowledge Exception:
Where a piece of equipment is left inside a persons body after surgery there is no need to have expert witnesses.

(e) Multiple defendants:
1) Medical team acting as a unit: we can hold all defendants jointly and severally liable unless they show they were not individually negligent.
Jury can draw an inference of a breach of duty.
(g) Only applies in the context of the tort of negligence and only to proving the element of breach of duty.
RES IPSA LOQUITOR IS THE WRONG ANSWER UNLESS WE ARE TALKING ABOUT THE TORT OF NEGLIGENCE AND THE ELEMENT OF BREACH OF DUTY

Front 79

Actual Cause

Back 79

P must show that but for the D's negligent conduct the P would not have been injured

Front 80

Substantial factor test

Back 80

The D’s conduct is the cause in fact of the P’s injury if that conduct was a substantial factor in bringing about the injury.

(a) Must use where:
Either D would have brought about the harm.
(b) Assume joint and several liability:
1) where there are multiple negligent parties, each of whom contributes to the P’s injury, they are jointly and severally liable

Front 81

Alternative liability theory

Back 81

Factors for application:
(a) where you have a small number of D’s


(b) each of whom is negligent

(c) all have been sued

(2) If all factors have been met, the burden of proof shifts to the D to show they were not the cause of the injury. If D’s cannot, then they are jointly and severally liable.

Front 82

Market share liability:

Back 82

1) Generic product. P cannot show which of a large group of D’s is responsible.
- P can sue those D’s who were negligent who might have caused her harm.
- Each is on the hook for its share of the market.
- Co. A had 10% of relevant market then Co. A is laible for 10% of P’s damages unless Co. A can show it was not the cause of P’s harm

Front 83

Proximate (legal) Cause: Unforeseen Extent of Harm

Back 83

doesn’t matter that the P has suffered more harm than one would foresee and D is liable for the full extent of the harm caused.
- you take your victim as you find them.

Eggshell Skull Rule:
- D is liable for full harm to P, even though, due to the P’s particular susceptibility to harm, the injuries were more severe than would be normally expected

Front 84

Proximate (legal) Cause Unforeseen Type of Harm

Back 84

Use a rule of foreseeability or the risk rule:
look at what makes the D’s conduct unreasonable. Then ask if the harm is within the risk created by the D’s negligent conduct?

Front 85

Proximate (legal) Cause Unforeseeable Manner of harm

Back 85

a. Superseding Cause:
A superseding cause is an unforeseeable, intervening cause that breaks the chain of causation between the D’s wrongful conduct and P’s injury

b. Culpability:
The more culpable the intervening conduct the more likely it is that it will be a superseding cause.

Subsequent negligent conduct is generally not so unforeseeable that it cuts off liability.
(1) look for the passage of time. The more time has gone by the more likely it is that the subsequent negligent conduct will cut off liability to the original tortfeasor

Front 86

For Damages the P must prove either:

Back 86

There must be a cognizable injury.
(1) personal injury

(2)property damages

Front 87

Compensatory damages

Back 87

a. are designed to return the P to her pre injury position.

b.Three rules:
(1) Damages must be foreseeable. Type of damage not extent

(2) Reasonably certain.
(3) Damages are not unavoidable.

Front 88

Two Categories of Compensatory Damages

Back 88

(1) Special damages:
- medical expenses, lost wages, destruction of plaintiffs car.
- P is entitled to recover for past, present and future special damages.
- Future is reduced because we assume the future damages will gain in value.
(2)General damages:
- Pain and Suffering, Lost Wages, medical expenses, lost consortium. NO Attoneys fees

Front 89

Collateral Source Rule:

Back 89

Unless told otherwise apply this on MBE.
The fact that the P is getting compensated from a third party source doesn’t mean the D doesn’t have to pay the full amount.
Also applies to gratuitous services such as free nursing services. The P is entitled to recover the FMKTV of those free nursing services

Front 90

Punitive Damages

Back 90

a. Never recoverable just for negligent conduct. Defendant has to be more culpable than negligent.
(1) willful, wanton, reckless, consciously disregarding a substantial risk.
b. Often called exemplary damages.
(1) goal is to make an example of D so he and others wont engage in similar conduct

c. Wealth of defendant is highly relevant.
(1) to determining the level of punitive damages.

(2) Due process clause limits the amount of punitive damages, more than a 10% ratio they may be unconstitutional

Front 91

Contributory Negligence

Back 91

Defendant has the burden of proof to show that:
by a POE that the plaintiff fell below the relevant SOC and that the failure was the cause in fact and proximate cause of P’s injuries.

Contriutory Negligence does not bar P's recoveryif D's act was reckless or intentional.

Front 92

Comparative Fault

Back 92

Pure comparative fault:
Where plaintiffs negligence has contributed to her own injuries, the plaintiffs award will be reduced by the amount the P was at fault.

Modified comparative fault:
If plaintiff is as much at fault or more at fault then the P is barred from recovery.

joint and several liability applies

Unless otherwise stated assume the MBE is testing a Pure Fault Scheme

Front 93

Assumption of Risk

Back 93

Express assumption of the risk arises where:
a P through written words or oral representation relieves the D of his duty to act in a non-negligent way toward the P.
(1)Void against public policy when dealing with a necessity.

Plaintiff may also impliedly assume the risk.
(1)Plaintiff is barred from recovery or recovery is reduced under the assumption of the risk doctrine if defendant establishes that:
(a)P had knowledge of and appreciated the danger involved

(b)P appreciated the specific danger posed to him

(c)P voluntarily chose to subject himself to danger.

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Professional rescuers (Firefighter Rule) for Assumption of Risk

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Where the P professional rescuer is injured in performing her job, due to an inherent risk in her job, she will not be able to recover against the person who created the condition.

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Possession of animals and Strict Liability

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Wild Animal Rule:
if the D keeps a wild animal and the P is injured by something that is a characteristic of that animal the D is liable no matter how unforeseeable that harm is.

Domestic Pet Rule:
Keeper of a domesticated pet is not liable unless the keeper knows or should know of the animals dangerous propensity

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Strict Liability for Abnormally dangerous activities

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An activity is abnormally dangerous when:
inevitable high risk of serious harm and it is not a common activity.

EXAMPLES:
Blasting or dynamite, crop dusting, transporting toxic waste, fumigating.

b.Plaintiff can recover when:
the D acts are proved as cause in fact

(1)Proximate cause issue:
- P has to be injured by a risk that makes the activity abnormally dangerous.

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8 Elements to Strict Products Liability in Tort

Back 97

1) Proper Plaintiff
2) Proper Defendant
3) Proper Context for Strict Products Liability
4) Defect
5) Absense of Warnings
6) Cause in Fact
7) Proximate Cause
8) Damages

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Proper Plaintiff in Strict Products Liability Cases

Back 98

any plaintiff injured using a defective product may recover from an appropriate defendant. As long as P is a user, consumer or bystander

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Proper Defedant in Strict Product Liability Cases

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Anyone who is in the marketing chain and in the business of dealing with this product
(a)This includes:
Manufacturer, retailer, distributor

(b)This does not include:
Occasional seller.

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Proper Context for Strict Products Liability

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(1) Must be a product and not a service.

(2)When there is both a service and a product:
If the product predominates: Strict Products Liability
If the service predominates: P will have to prove Negligence.

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Manufacturing Defect

Back 101

a) a product comes out in a condition that was not intended by the manufacturer.
b) Plaintiff must show that:
the product is more dangerous than the ordinary consumer would expect from using the product in its ordinary manner and the defect existed when the D put the product onto the market.

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Design Defects

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a)A product manufactured in the way the D intends but it still presents a danger of personal injury or property damage.

b)Ordinary Consumer Expectation Test:
a product is defective if its in a condition unreasonably dangerous when it is more dangerous than would be contemplated by the consumer would expect, with the ordinary common knowledge as to the product.

c)Risk-Utility Balancing Test:
the risk of the product as designed outweighs the utility of the product as designed.

i) A product’s design is usually defective under this test if:
if an alternative design existed at a similar cost.

Some products are exempt from being found defective in design under strict products liability under Comment K:
Some products have extraordinary public utility and no reasonable alternatives.

EXAMPLES:
Vaccines, prescription drugs

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Absence of Warnings

Back 103

A plaintiff is asserting either:
i) There is a warning and its inadequate:

a. This cannot be a subtle issue.
b. Does the warning reasonably inform the reader of
significant risks? Look at placement of warning, size of font, language.
ii) There should be a warning but there isn’t

a. Manufacturer must warn about risks that it knows or should know about.

b.1% chance of death is significant.

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Cause-in-Fact in Strict Products Liability Cases

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Showed that the defect that injured the Plaintiff was in existence at the time the product entered the market.

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Proximate Cause in Strict Products Liability Cases

Back 105

Negligent handling of a product after it leaves the manufacturer is foreseeable and will not be a superseding cause.

- A D will be relieved of liability if an intervening handler discovers the defect and then sells knowing the defect.

Learned Intermediary Doctrine:
A D will be relieved of liability if the manufacturer provides a warning to someone like a doctor and the doctor does not relay that warning to patients.

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Damages in Strict Products Liability Cases

Back 106

(1)May be recovered when:
When the damage is done to something other than the product.

(2)Where the harm is only to the product itself:
Cannot pursue negligence or strict liability only remedy is Breach of K Warranty.

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Misuse as a Defense to Strict Products Liability Claim

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(a) P uses a product that is neither intended nor foreseeable the manufacturer is not liable.

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Alteration as a Defense to Strict Products Liability

Back 108

when a P or third party unforeseeably alters a product.

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Product Liability on a Negligence Theory

Back 109

1.Any foreseeable plaintiff is entitled to bring an action.

2. Analyze the conduct of each defendant and ask whether it was reasonable.
a. Differentiate from strict products liability, which considers the product rather than the person.

3. Res ipsa loquitor takes the place of a manufacturing defect in negligence theory.

4. Negligence defenses apply.

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Products Liability on a Warranty Theory

Back 110

1. An express warranty exists where:
The D makes a specific representation as to the quality of a product that becomes a basis of the bargain.

An implied warranty
a.Warranty of Merchantability
(a) applies o merchants. In any transaction of goods the merchant states implicitly that the product is capable of its intended use.

(b)There are privity and notice requirements.
(c)Can be disclaimed.

3. Where the harm is to the product itself, the only claim a plaintiff can pursue is a claim for breach of warranty.

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Public Nuisance

Back 111

a. A public nuisance is:
an unreasonable interference with a right common to the general public

b. Typically brought by a government actor such as an Attorney General.
(1) To recover damages in an individual action for a public nuisance:
One must have suffered harm of a kind different from that suffered by other member of the public.

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Private Nuisance

Back 112

a. A private nuisance is:
a thing or activity that substantially and unreasonably interferes with plaintiffs use and enjoyment of her land.

b.Mental state:
1) intentional and unreasonable
2) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct.

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There are five factors to consider when determining whether a nuisance is a substantial and unreasonable interference.

Back 113

(1) The value of the D’s activity

(2) What are the alternatives
(3) Nature of the Locality

(4) Extent of P’s Injury

(5) Who was there first?

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Nusiance Remedies

Back 114

a. Injunction
(1) To get an injunction, the plaintiff must persuade a judge that:
(a) plaintiff will suffer and irreparable harm
(b) Damages are inadequate.

(2) A judge must do a balancing of the equities to determine whether the plaintiff is entitled to equitable relief.

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For a defamation action

Back 115

Plaintiff must establish the D published defamatory material conserning the plaintiff that caused reputational damage

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Defamatory Message

Back 116

a. A message is defamatory if it:
lowers the P in the esteem of the community or discourages third parties from associating with P.
- Causing reputational harm
b. The statement must be one which can be believed to be truthful and reputation-harming.
(1) Pure Opinion cannot be defamatory

(2) Defamatory statements couched in Opinion statements.
c. Must be defamatory in the eyes of a reputable group.

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Publication of a Defamatory Message

Back 117

a. Publication means:
some one other than the P read, saw or heard the defamation

b. Plaintiff must show:
D intentionally published or was negligent as to publication
c. Republication Rule:
Anyone who repeats the defamation becomes a publisher and could be liable

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Libel definition
Slander definition:

Back 118

Any sort of communication that has a certain permanence. A writing, sculpture, photograph
(1)Reputational harm is presumed and damages do not have to be proved.
defamation that is spoken

(1)For plaintiffs to recover for defamation:
Slander P’s must prove special damages (specific economic losses that stem from the slanderous statements.)

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slander per se

Back 119

1)Slander states the P is unfit to perform in trade or profession

2) Crime of Moral Turpitude or serious crime

3)Someone has a current loathsome disease

4) Lack of chastity of a woman

Front 120

Contexts in which absolute privilege applies under Defamation

Back 120

(a) Between spouses


(b) On floor of legislature


(c) High level executives


(d) Judicial proceedings

Front 121

Loss of Qualified Privilege in a Defamation Action

Back 121

1) Defendant loses an otherwise available qualified privilege if:
(a) Bad intent

(b) D knows the information is false

(c) D is reckless with the truth of what they are stating.

(2)Gives greater leeway to speech, but qualified because they can be lost.

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Invasion of Privacy

Back 122

1. D unreasonably intrudes into P seclusion

a. Does not require any publication of information.
b. Invasion must be done in a way that is
2. Damages recoverable for invasion of seclusion include:
Compensatory damages and under appropriate circumstances punitive damages.

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Public Disclosure of Private True Facts

Back 123

1. Plaintiff must prove four elements:
a. disclosure

b. private facts

c. disclosure of which is highly offensive to a reasonable person

d. information is not newsworthy

2. Look for the passage of time.

3. Need some sort of publication or dissemination of information.

4. Injunction might be possible since the information is truthful.
a. Not granted to enjoin defamatory speech since it is false.

5. Constitutional issues:
a. if the information comes from public records the P will lose.

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Portrayal in a False Light

Back 124

Plaintiff has to show:
a. publication

b. false information

c. divulging the information is highly offensive to a reasonable person

d. Some level of fault
(1) Parallel to defamation rules.

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Intentional Misrepresentation (Fraud)

Back 125

1. Plaintiff must prove four elements:
a. intentional material misrepresentation

b. of past or present fact

c. made with scienter

d.P justifiably relies

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Failure to disclose information is not a basis for Misrepresentation unless

Back 126

(1) fiduciary relationship

(2) D makes an ambiguous statement

(3) D learns statement is untrue

(4) D makes statement without intending reliance but discovers the P is relying

(5) where P reasonably accepts there to be disclosure