Mbe Torts

Front 1

Transferred intent rule applies to:

Back 1

1. Assault;
2. Battery;
3. False imprisonment;
4. Trespass to land; or
5. Trespass to chattel

Front 2

Battery elements

Back 2

1. harmful or offensive contact
2. with plaintiff's person

harmful contact = unpermitted contact even if it is not harmful (cause an injury). Offensive to the reasonable person.

contact can be direct (hitting someone) or indirect (laying a trap for them)

plaintiff's person includes anything connected to them (clothing/purse)

Front 3

Assault or Battery

Damages

Back 3

nominal, actual, or puntitive

Front 4

Assault

Elements

Back 4

1. Act creating reasonable apprehension in P;

2. of immediate harmful or offensive contact to P's person;

3. Intent; and

4. Causation

Front 5

Assault: Apprehension
*Apparent ability

Back 5

Reasonable apprehension is created even if no harm is possible

D is liable for assaulting P with an unloaded gun.

Mere words insufficient.

Front 6

False Imprisonment

elements

Back 6

1. An act or omission on the part of defendant that confines or restrains P;

2. To a bounded area;

3. Intent; and

4. Causation

Front 7

False Imprisonment

Insufficient Methods of Confinement

Back 7

Insufficient include:
moral pressure and future threats

Front 8

False Imprisonment

*Time and Awareness

Back 8

*Time of confinement not relevant, can be very short

**P must know of the confinement OR be harmed by the confinement

Front 9

False Imprisonment

*Shoplifting Detentions

Back 9

If:
1. Reasonable belief as to theft
2. Reasonable manner of detention (no deadly force), and
3. Detention for a reasonable period of time

NO false imprisonment (all hinges on reasonableness)

Front 10

IIED

elements

Back 10

1. Act by defendant is extreme and outrageous conduct;

2. Intent or recklessness

3. Causation; and

4. Damages--severe emotional distress

Front 11

IIED
*Extreme and outrageous conduct

Back 11

Conduct that transcends all bounds of decency. Conduct that is not normally outrageous may become so if:
-it is continuous in nature;
-it is directed towards a vulnerable P (child, elderly, pregnant, supersensitive if sensitivities are known to D); or
-it is committed by a certain type of D (common carriers or innkeepers--if P are passengers or guest)

Front 12

IIED
*Damages

Back 12

Actual damages are required (not nominal).
-proof of physical injury not required.
-the more outrageous the conduct, the less proof of damages is required

***IIED is the ONLY intentional tort to the person that requires real damages.

Front 13

Intentional Torts

IIED
*Bystander Rule

Back 13

D intentionally causes physical harm to a 3rd person and P suffers emotional distress because of it.

P may recover showing the prima facie elements of IIED, OR that
-she was present when the injury occurred;
-she is a close relative of the injured person; and
-the defendant knew the facts above

Front 14

Intentional Torts

Trespass to Land elements

Back 14

1. Act of physical invasion of real property
-may be by a person or object
-includes land and also airspace and subterranean space for a reasonable distance
2. Intent; and
-D need only intend to enter that space
3. Causation
4. Damages
-no damages to the land required

Front 15

Intentional Torts

Trespass to Chattels elements

Back 15

1. An act that interferes with plaintiff's right of possession in a chattel;
2. intent;
(no intent to trespass required, D's mistaken belief that he owns the chattel is no excuse)
3. causation; and
4. damages

Front 16

Trespass to chattels
*Types of interference
**Damages

Back 16

*intermeddling--directly damaging the chattel, or
dispossession--depriving P of possession of the chattel

**Actual damages--not necessarily to the chattel, but at least to the possessory right--are required

Front 17

Conversion

elements

Back 17

1. An act that interferes with P's right of possession in chattel
**Interference is so serious that it warrants requiring D to pay the chattel's full value

2. Intent; and

3. Causation

Front 18

Trespass to Chattels v. Conversion

Back 18

1. Act by Defendant
TTC: Interference with right of possession
C: Interference so serious warrants payment of chattel's full value

2. Intent
TTC: Intent to do the act that brings about the interference
C: Intent to do the act that brings about the interference

3. Remedy:
TTC: recovery of actual damages (cost to repair)
C: full fair market value of chattel at the time of conversion

Front 19

Intentional Torts: Defenses

Defense of Property
*request to desist
**permissible amount of force used

Back 19

One may use reasonable force to prevent the commission of a tort against her real or personal property.

*A request to desist must be made first unless it would be clearly futile or dangerous

**the defender may use reasonable force. Defender may not use force causing death or serious bodily harm strictly to protect property

Front 20

Defamation elements (common law)

Defamation (constitutional)

Back 20

1. defamatory statement about P, 2. publication, 3. damage to P's reputation

If the defamation is a matter of public concern, P must show
1. defamatory statement about P, 2. publication, 3. damage to P's reputation, 4. falsity of the statement (defendant has the burden of proving), and 5. fault of the defendant
**if the P is a public figure, assume it is a matter of public concern

Front 21

Defamation

Defamatory statement

Back 21

defamatory statement of fact
-language tending to adversely affect one's reputation
-reasonably understood to be about P

Front 22

Defamation

Publication

Back 22

communication to a 3rd person
*maybe intentionally OR negligently made
**negligent communication test: was it reasonable to expect others would overhear it? (reasonable foreseeability)
***the person must be capable of understanding the statement (right language)

Front 23

Defamation

Damage to reputation
*libel
*slander
*slander per se

Back 23

Libel: written or broadcast (TV/radio)
*damage is presumed

Slander: spoken
*P must prove "special damages" (money damages)

Slander per se: slander particularly devastating to reputation. (1. business or profession; 2. crime involving moral turpitude; 3. loathsome disease; 4. imputing unchastity to women)
*damages are presumed

Front 24

Defamation Defenses

Absolute privileges

Qualified privileges

Back 24

Absolute privileges
-cannot be lost
-communications between spouses
-three governmental branches
**anything said in the course of litigation that is reasonably related to it will be absolutely privileged

Qualified privileges
-can be lost if abused
-policy concern: reference letter: letter from former professor or employer. (privileged lying)

Front 25

Defamation (constitutional)

Fault of the Defendant

Back 25

Public figure plaintiff: intentional or reckless tortious conduct must be shown (negligence not enough)
**actual malice test: statement was made knowing it was false, or with reckless disregard as to its truth or falsity

Private person plaintiff: only has to prove negligent tortious conduct
**if conduct surpasses negligence, plaintiff can get presumed damages and/or punitive damages

Front 26

Defamation

Fault of the defendant that must be shown
*public figure or public official
*private person matter of public concern
*private person matter of private concern

Back 26

*public figure
-actual malice test
-damages presumed

*private figure/public matter
-at least negligence as to truth or falsity
-damages only for "actual injury"

*private figure/private concern
-no fault need be proved

Front 27

Defamation defenses
*consent

Back 27

consent is a complete defense to defamation. Works similarly to consent to intentional torts.

truth where plaintiff does not need to prove falsity, defendant may prove truth as a complete defense

Front 28

Invasion of right to privacy
*Four branches
-appropriation by D of P's name or picture for D's commercial advantage
-intrusion by D into P's privacy or seclusion
-publication of facts placing P in a "false light"
-publication of private facts about P

Back 28

1. appropriation of P's picture or name
*unauthorized use of P's picture or name for d's commercial advantage (limited to the promotion goods services)

2. intrusion on p's affairs or seclusion
*the act of prying or intruding must be highly offensive to a reasonable person (the thing intruded upon must be private--pictures taken in public places do not suffice)

3. publication of facts placing plaintiff in false light
*d attributes to p views which he does not hold or actions he did not take (must be something highly offensive to a reasonable person in the circumstances)

4. public disclosure of private facts about p
*public disclosure of private information about P. Disclosure must be highly offensive to a reasonable person. Liability may attach even if statement is true

Front 29

Invasion of right to privacy defenses
*consent
*defamation privileges

Back 29

*consent (see defamation and intentional torts)
*privileges (see defamation privileges)

Front 30

Misrepresentation
*Intentional Misrepresentation (fraud, deceit) elements

Back 30

-Misrepresentation of a past or present fact (not an opinion and silence is not enough);
-Scienter (D knew or believed the statement was false or that there was no basis for the statement);
-Intent to induce P to act or refrain from acting in reliance upon the misrepresentation;
-Causation (actual reliance);
-Justifiable reliance; and
-Damages (P must suffer $$ damages)

Front 31

Misrepresentation
*Negligent Misrepresentation elements

Back 31

See intentional misrepresentation
-negligence replaces scienter
-only applies in commercial setting fact pattern

Front 32

Interference with Business Relations
*prima facie case

Back 32

-existence of a valid contractual relationship between P and a 3rd party, OR a valid business expectancy of P;
-D's knowledge of the relationship or expectancy;
-intentional interference by D inducing a breach or termination of the relationship or expectancy; and
-damages

Front 33

Interference with Business Relations
*Defenses (privileges)

Back 33

Existence of a privilege is a question of fact.
1. D's "persuasion" conduct,
2. relationship between the parties
-P and D: are they competitors? if so, privileged
-D and 3rd party: are they close relatives? is D a lawyer, advisor, etc.?

Front 34

Negligent Torts
*Prima Facie Case
*Duty Analysis

Back 34

*a duty on the part of D to conform with a specific standard of conduct for protection of plaintiff against unreasonable risk of injury; breach of that duty; breach was the actual and proximate cause of P's injury; and damage

*Duties of care are only owed to foreseeable plaintiffs (P must be within the foreseeable zone of danger)

Front 35

Negligent Torts
*Breach (standards of care)
-the reasonable person standard

Back 35

-reasonable person under the circumstances
*objective test
*mental traits and characteristics not taken into account
*physical impairments taken into account

Front 36

Negligent Torts: standards of care

-the children standard

Back 36

-children of like age, intelligence, and experience
*subjective standard
*individual intelligence is taken into account
**Exception: where the child is engaged in adult activity, the reasonable person standard applies

Front 37

Negligent Torts: standards of care

-the professionals standard

Back 37

a reasonable professional in the same or similar communities
*the more specialized training the professional has, the higher standard they will be held to

Front 38

Negligent torts: standards of care

Common carrier and Innkeepers standard

Back 38

liability for even slight negligence
*P must be passenger or guest

Front 39

standards of care

O/O of land duty to:
*undiscovered trespassers
*discovered or anticipated trespassers

Back 39

*undiscovered trespassers
-no duty owed

*discovered or anticipated trespassers
-warn of concealed, unsafe, ARTIFICIAL conditions known to the landowners involving risk of death or serious bodily harm and
-use reasonable care in the exercise of "active operations on the property
-no duty is owed for the natural conditions or less dangerous artificial conditions

Front 40

standards of care

O/O of land
*attractive nuisance doctrine

Back 40

O/O liable if P shows:
-dangerous condition that D knows or should know of;
-O/O knows or should know children frequent the vicinity of the condition;
-the condition is likely to cause injury (child cannot appreciate the risk); and
-the expense of remedying the situation is slight compared with the magnitude of the risk

The child DOES NOT have to be attracted onto the land by the dangerous condition

Front 41

standards of care

O/O of land
*duty to licensees

Back 41

Licensee: on the land for his/her own purpose with O/O's permission (salesman, social guest)

O/O has duty to:
-warn of or make safe dangerous conditions (NATURAL or ARTIFICIAL) known to the owner that create an unreasonable risk of harm to the licensee; (actual knowledge req)
-that the licensee is unlikely to discover; and
-exercise reasonable care in the conduct of "active operations" on the property

**O/O has NO DUTY to inspect or repair

Front 42

standards of care

O/O of land
*duty to invitees

Back 42

invitee: on the land for the O/O purpose (e.g. O/O is a store owner)

O/O has responsible for
-dangerous conditions (NATURAL or ARTIFICIAL);
-that O/O knows or should know of (no actual knowledge requirement)

**O/O has duty of reasonable inspection

Front 43

O/O of land

*If unclear if P is an invitee or licensee

Back 43

treat P as an invitee

Front 44

O/O of land

*discharge of duties

Back 44

-adequate warning discharges D's duties, or
-very obvious dangerous conditions

Front 45

Negligent torts: standards of care

*statutory standards
*effect of noncompliance
*defenses for noncompliance

Back 45

for the statutory standard to apply:
-P must fall within the protected class
-statute must be designed to prevent this kind of harm

Violation of the statutory standard is negligence per se. Causation and damages must still be established by P.

**breach of the statutory standard of care does not mean D is liable, but there is a conclusive presumption of negligent conduct

Defenses
-compliance would be more dangerous
-compliance would be impossible
**compliance with a statutory standard will not establish due care, if the circumstances require more (e.g. 45 m.p.h. speed limit in a blizzard)

Front 46

Negligent torts

NIED elements

Back 46

P must suffer a physical injury (shock is enough)

P must be within the "target zone" of D's negligent conduct

Front 47

Negligent Torts

Duty to act (4 exceptions)

Back 47

No affirmative duty to act, unless:

1. special relationship between the parties (family, employer, common carriers)

2. Duty to control 3rd persons (D had the right and ability--parents/children and knew or should have known that it was required)

3. Assumption of duty to act by beginning to act

4. D's negligence caused P's peril

Front 48

Negligent Torts

Res Ipsa Loquitur
*3-part test
*effect of res ipsa loquitur

Back 48

1. injury would not happen unless someone was negligent
2. D was in exclusive control of the instrumentality causing the injury
3. P was not contributorily negligent

Effect:
P's case will survive a motion for directed verdict
P's case will go to the jury with an inference of negligence

Front 49

Negligent Torts

Actual Causation (3 tests)

Back 49

1. D's breach was the but for cause of P's injury;
2.D's breach was a substantial factor in causing P's injury; or
3. If two or more Ds caused P's injury, but you cannot determine which one, if each of D's breaches was sufficient to cause the injury, each D is the actual cause

Front 50

Negligent Torts

Proximate Cause
*Unforseeable intervening force
*Eggshell skull P rule

Back 50

D is liable for all injuries that were the foreseeable result of his negligent actions.

*unforeseeable intervening force: D still liable unless intervening force is crime or intentional tort

*eggshell skull P: D takes the P as he finds him. the extent of the injuries do not need to be foreseeable, only that the injury could occur

Front 51

Negligent Torts

Damages

Back 51

Damage will not be presumed (and nominal damages are not available)

Front 52

Negligent Torts

Defenses
*Contributory negligence
-intentional torts
-last clear chance doctrine
-imputed contributory negligence

-defense to defendant's violation of a statute

Back 52

Contributory negligence: negligence on the part of the plaintiff that contributes to her injuries.

*no defense to wanton and willful misconduct or intentional tortious conduct

Last clear change doctrine
*permits P to recover despite her contributory negligence. The person with the last clear change to avoid an accident is liable for negligence. (P's rebuttal to D's defense of contributory negligence.)

Imputed contrib. negligence
*if the relationship between 3rd party and P is approp, the contrib negligence of the 3rd party will be imputed to the P and P will not recover.
Imputed for employer-employee, partner, and joint venturer relationships. (not imputed btwn spouses, parents, or car owner/driver)

Defense to d's violation of a statute

*contributory negligence is a defense to defendant's violation of a statute, unless the statute was designed to protect this class of plaintiffs from their incapacity and lack of judgment. (e.g., a child injured after darting into the street in a school zone getting hit by a D who is speeding.)

Front 53

Defenses to Negligence

Assumption of Risk (2-part test)

Back 53

Plaintiff denied recovery because she assumed the risk of any damage caused by D's act. Requires that:

1. Plaintiff knew of the risk, and

2. voluntarily proceeded in the face of the risk.

Front 54

Defenses to Negligence

Implied Assumption of the Risk

*When is risk not implied

*Defense to intentional torts

Back 54

knowledge of risk is implied where the risk is one that an average person would clearly appreciate.

risk is not implied if there is no alternative to proceeding in situations involving fraud, force, or emergency.

implied assumption of the risk is not a defense to intentional torts. But is a defense to willful and wanton negligence.

Front 55

When is there implied assumption of the risk and contributory negligence? (3-part test)

Back 55

Plaintiff:

1. unreasonably, and

2. voluntarily,

3. takes on a known risk

Front 56

Negligence Defenses:Effect of Contributory Negligence

1. Contributory Negligence states

2. Comparative Negligence States

2a. Partial Compartive Negligence

2b. Pure Comparative Negligence

Back 56

1. Contributory negligence state: P's contributory negligence completely bars recovery.

2. Comparative negligence state: P's contributory negligence reduces the recovery.

2a. Partial comparative negligence state: P cannot recover if P was more negligent than any other party.

2b. Pure comparative negligence state: P can recover even though P was more negligent than the other party.

***Always assume that you are in a pure comparative negligence jurisdiction on the MBE***

Front 57

Strict Liability Torts

Prima facie case

Back 57

No standard of care. P must show

1. D had an absolute duty to make safe;

2. the dangerous aspect of the activity was the actual and proximate cause of P's injury; and

3. P suffered damages

Front 58

Strict Liability Torts

Liability for animals

1. Trespassing animals

2. Personal injuries (wild animals, domestic animals, as to trespassers)

Back 58

1. trespassing animals: a owner is strictly liable for foreseeable damage done by the trespass of his animals.

2. an owner is strictly liable for injuries caused by wild animals; no strict liability for domestic animals unless the owner knows of the animal's dangerous propensities (one bite free rule); strict liability will generally not be imposed in favor of trespassers in the absence of the owner's negligence

Front 59

Strict Liability Torts

Abnormally dangerous activities (2-part test)

Back 59

1. activity creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and

2. the activity is not a matter of common usage in the community

*injuries must be caused by the abnormally dangerous characteristics of the activity (D not liable under strict liability claim if a dynamite-filled truck speeds and hits someone but the dynamite does not explode).

**D is liable no matter how careful D was being because it is a strict liability tort!!

Front 60

Products Liability

Who can be held liable?

Back 60

any commercial supplier if P can show:

1. defect causing the injury existed at the time the product left that defendant's control, and

2. plaintiff needs a "workable" theory: negligence or strict liability

Front 61

Products liability

Negligence Theories

*duty to inspect

Back 61

focus is on D's conduct. Possible negligent conduct:

1. negligent design

2. negligent manufacture

3. negligent warnings

4. negligent inspections

(res ipsa is available)

duty to inspect:

retailers and wholesalers usually satisfy their duty of care through a cursory inspection

Front 62

Products liability

Strict liability elements

*who can be a defendant

Back 62

1. a commercial supplier of a product,

2. producing or selling a defective product

"an unreasonably dangerous condition"

*everyone can be sued! indemnification up the chain applies

Front 63

Nuisance

1. Definition

2. Private Nuisance

3. Public Nuisance

Back 63

1.Nuisance is not a tort, it a a type of harm. Nuisance actions can be based on intentional, negligent, or strict liability theories

2. Private nuisnce: substantial and unreasonable interference with one's use and enjoyment of land

3. Public nuisance: act which unreasonably interferes with health, safety, or property rights of the community

Front 64

Nuisance

Who can bring the action?

Back 64

Private: P must have possesion or the right to immediate possesion of the land

Public: P can recover only if she has suffered a unique damage no suffered by the public.

Front 65

Nuisance

Standard

Back 65

Objective. The conduct must be objectionable to an average person (e.g., not specific to P's allergies)

Front 66

Nuisance

Can P come to the nuisance and win the law suit?

Back 66

Yes, it doesn't matter if P came to a preexisting nuisance

Front 67

Nuisance

Balancing test

Back 67

unreasonable interference if:

the severity of the injury to P outweighs the utility of D's conduct

Front 68

Vicarious liability

Respondeat Superior

Intentional Torts

Back 68

Respondeat Superior: Employers will be held vicariously liable for the actions of their employees if the tortious acts occur within the scope of the employment relationship.

1. Intentional torts: generally not within the scope of employment, unless.

a. authorized by employer (bouncer),

b. generated by employer (bill collector), or

c. furthering the business of the employer (removing rowdy customers).

Front 69

Vicarious Liability

Car Owners/Drivers

Back 69

Car owners are not vicariously liable for the torts of other drivers. Except:

1. family car doctrine: household member using the car with permission, or

2. permissive use doctrine: anyone using with permission

Front 70

Vicarious Liability

Parents/Children

Back 70

Parents are not vicariously liable for the torts of their children.

But many states make parents liable for the wilfull and intentional torts of their children by statute (up to a fixed dollar amount).

Front 71

Joint and several liability

Back 71

where 2 or more negligent acts combine to proximately cause an injury, each negligent actor will be liable to P for the entire damage incurred.

*if the injury is divisble, each D is liable only for their identifiable portion

Front 72

Ds acting in concert

Back 72

where 2 or more Ds act in concert and injure P, each is jointly and severally liable, even if the injury is divisible.

Front 73

contribution

Back 73

allows a D who pays more than his share of the damages under joint and several liability to have a claim against other jointly liable parties for the excess (apportions responsibility)

Front 74

Contribution and intention intentional torts

Back 74

contribution is not allowed among intentional tortfeasors

Front 75

Indemnification

Back 75

D can get entire award amount back from other defendant(s)

Front 76

When indemnifation applies

Back 76

1. by contract

2. vicarious liability situations

3. the other D is a lot more responsible

4. under strict products liability

Front 77

comparative contribution

Back 77

Defendants split up judgment according to "relative fault" (rather than each D being liable for the full amount)

Front 78

Survival and Wrongful Death

Back 78

Derivative recoveries, you will recover no more than the decendent would have if he/she had lived.

Front 79

Survival of torts actions

Back 79

allow one's cause of action to survive the death of the party. Applies to torts to property and personal injury torts.

Does not apply to torts invading intangible personal interests (defamation, invasion of right to privacy, malicious prosectution).

Front 80

Wrongful death

Back 80

grant recovery for $ injury resulting to the spouse and next of kin.

creditors have no claim against amount awarded

Front 81

Tort Immunities

Intra-family tort immunities

Back 81

traditional view: one family member could not sue another in tort for personal injury.

ABOLISHED

even in states that retain parent-child immunity:

children can always sue parents for a. intentional torts, or b. car accident cases to the extent of insurance coverage

Front 82

Tort immunities

Governmental tort immunity

Back 82

immunity is available for governmental functions, not proprietary actions.

Would a private person normally perform this function? If yes, no immunity