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138 Cards in this Set

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What are the three elements of a prima facie case for intentional torts?
1) Act by Defendant (volitional movement);
2) Intent (specific or general); and
3) Causation (substantial factor in bringing about the injury)
What are three overview propositions that apply to all intentional torts?
1) Extreme sensitivity of a P is ignored in decided whether that P has a valid cause of action

2) There are no incapacity defenses in intentional torts (everyone is capable of intent)

3) Intent is an element of every intentional tort (D has intent if D has desire to produce the legally forbidden consequence of that tort)
What is the transferred intent doctrine?
So long as D had intent to produce any forbidden consequence, he’s liable for whatever forbidden consequence that happens, even if not the same one he intended.

(Limitations – only applicable if the tort intended and the tort that results are one of the following: assault, battery, false imprisonment, trespass to land, or trespass to chattel)
What are the elements of a prima facie case for battery?
1) Harmful or Offensive Contact; 2) To Plaintiff’s Person; 3) Intent; and 4) Causation
Describe the element of harmful or offensive contact for battery
It is judged by a reasonable person standard and the contact does not need to be direct or immediate.
What does it mean in battery torts that the contact must be with P's person?
The contact can be with anything P is connected to, holding, touching, etc.
What are the elements of a prima facie case for assault?
1) Act by D Creating Reasonable Apprehension in P; 2) Of Immediate Harmful or Offensive Contact in P’s Person; 3) Intent; and 4) Causation
What does it mean in assault torts that the D puts P in reasonable apprehension?
Here apprehension is a synonym of knowledge and should not be confused with fear. Note, the apprehension must be of an immediate battery.
To be liable for an assault tort, does the D need to have actual ability?
No, apparent ability is sufficient. (Think the unloaded gun problem)
What are the effects of words in assault torts?
A naked verbal threat is not going to provide a cause of action for a P; there needs to be conduct/menacing gesture. However, accompanying words can negate reasonable apprehension (conditional words, words indicating lack of immediacy)
What are the elements of a prima facie case for false imprisonment?
1) Act or Omission by D Confines/Restrains P; 2) To a Bounded Area; 3) Intent; and 4) Causation
What are sufficient methods of confinement/restraint for false imprisonment torts?
Physical force, threats of force, failure to release, invalid use of legal authority.

Note, force and threats of force include those against P, P’s property, and P’s immediate family. However, threats must be ones that operate on the mind of a person of normal sensitivity
Can an omission be an act of restraint for false imprisonment torts?
Yes, an omission can be an act of restraint
For a false imprisonment tort, will an act of restraint count if P doesn't knows about it?
No, unless P is harmed by it.
For false imprisonment torts, what does it mean that P is bounded to a bounded area?
P is not considered confined unless bounded in all directions.
In addition, an area is not bounded if there is a reasonable means of escape that P can reasonably discover. However, if the only way out is dangerous, disgusting, humiliating, or hidden, that is not a reasonable means of escape and D is still liable.
What are the elements of a prima facie case for intentional infliction of emotional distress?
1) Act by D Amounting to Extreme and Outrageous Conduct; 2) Intent or Recklessness; 3) Causation; 4) Damages – Severe Emotional Distress
What is the only intentional tort where D can be held liable for acting recklessly and not deliberately?
Intentional Infliction of Emotional Distress
What constitutes extreme and outrageous conduct for an intentional infliction of emotional distress cause of action?
Conduct is outrageous if it exceeds all bounds of decency tolerated in a civilized society. However, mere insults are generally not outrageous as a matter of law,
What are the hallmarks of outrageousness for an intentional infliction of emotional distress tort?
1) Conduct in question is continuous or repetitive
2) D is common carrier or innkeeper (note, does not encompass negligence)
3) P (distressed person) is a member of a fragile class of persons (young children, elderly, pregnant women if D knows P is pregnant)
3) Hate Speech in cases of abuse of power

Note: while insulting an adult does not give rise to a CoA, insulting a fragile class of persons could give rise to a CoA.
What does it mean that P must suffer severe distress in an intentional infliction of emotional distress tort?
This doesn’t require a particular showing by P; instead, it is strictly for the jury to determine whether P has been severely distressed. However, if P was only “mildly annoyed,” this negates the element of severe distress
What are the elements of a prima facie case for trespass to land?
1) Physical Invasion of P’s Real Property; 2) Intent; 3) Causation
What are the two ways physical invasion can be accomplished in trespass to land torts?
1) D can enter the P’s property on foot or in some kind of vehicle
2) D throws something tangible onto P’s land
Are intangible forces considered a trespass to land?
No. Relief can be granted through a nuisance cause of action.
What intent is required for trespass to land?
The only intent required is that D wanted to get to a particular location thru a particular act. D does not need to know he was crossing a boundary line or wanted to get on private property.

Note: Intent can become a question because sometimes you enter lawn through involuntary act
Who is the plaintiff in a trespass to land tort?
P is the person in lawful possession of the land at the time the invasion takes place. possession (e.g., tenant not landlord)
Is invasion of the air above or soil below P's land an actionable trespass?
Yes, the air above and soil below for a reasonable distance is an actionable trespass, since this is considered part of the land.
What are the elements for a prima facie case for trespass to chattel?
1) Act by D that Interferes with P‘s Right of Possession in a Chattel; 2) Intent; 3) Causation; and 4) Damages
What are the elements for a prima facie case for conversion?
1) Act by D that Interferes with P’s Right of Possession in a Chattel; 2) Interference is so Serious that it Warrants Requiring D to Pay Chattel’s Full Value; 3) Intent; and 4) Causation
What is personal property?
Personal property is everything you own other than land and buildings
What are the two ways in which a D can interfere with P's personal property?
1) Destroy it, ruin it, scratch it, etc.
2) Can take it away from you – for a little while or forever
What are the differences between trespass to chattel and conversion torts?
The degree of interference:
- Trespass to Chattels = modest interference
- Conversion = significant degree of interference

The remedy:
-The trespass to chattel remedy is rental or repair.
-Conversion has a special remedy; P is allowed to recover full value of chattel (operates as a forced sale)
What are the affirmative defenses for intentional torts?
1) Consent (defense to all seven intentional torts)
2) Protective Privileges
3) Necessity
Who can give consent for the affirmative defense in intentional torts?
Only someone with legal capacity can give a valid consent
What are the two kinds of consent?
1) Express consent, which is literally words in quotation marks Note, express consent is ignored if there has been fraud or duress.
2) Implied consent, which can be based on customary practice or based on D’s reasonable interpretation of P’s objective conduct. (Remember it is a reasonableness test!)
In the context of affirmative defenses for intentional torts, what if D exceeds the scope of consent?
D loses the defense and goes back to a posture of liability. Thus, you have to determine the scope of consent and whether someone stayed in scope of consent.
What are the three protective privileges that act as affirmative defenses in intentional torts cases?
Self-defense; defense of third persons; defense of property
For the protective privileges affirmative defense, what are the three things D needs to show?
1) Proper timing: D must act when the threat he is supposedly responding to is in progress or imminent (i.e., no revenge!)
2) Reasonable belief that the threat is genuine. Note, reasonable mistake doesn’t negate the privilege.
3) Proper scope: in order to retain the defense, D must limit himself to the amount of force that is necessary given the circumstances (excess force will make D liable for that tort)
What is the NY rule of retreat?
NY holds a significant minority position that an individual must retreat if it feasible and safe to do so before resorting to deadly force. This rule does not apply if D is in his own home or if the D is a cop/assisting a cop.

Note, on the MBE, in a case where there is an actual or reasonable belief of deadly threat, D can respond w/ deadly force.
To what intentional torts does the affirmative defense of necessity apply?
It applies to trespass to land, trespass to chattel, or conversion
What is public necessity in the context of affirmative defenses for intentional torts?
Public necessity is a defense when D invades P’s property in an emergency to protect the community as a whole or a significant group of people. It is an absolute defense, and D is not liable.
What are the consequences when a D acts out of private necessity for his own self-interest in the context of affirmative defenses for intentional torts?
1) D is liable to pay actual/compensatory damages.
2) No liability for nominal or punitive damages
3) As long as the emergency continues, D is allowed to remain on P’s land in a position of safety (if P removes D, P could be liable for battery)
Does D incur any liability if D acts out of private necessity to protect P's property in the context of affirmative defenses for intentional torts?
No, there is no liability for D if he is acting out of private necessity to protect P's property (such as, breaking P's window to stop a fire inside).
What are the four elements of a common law cause of action for defamation?
1) Defamatory Language;
2) “Of or Concerning” the P;
3) Publication thereof by D to a Third Person; and
4) Damage to P’s reputation
What are the two additional elements a P must prove under the constitution if the defamation involves a matter of public concern?
5) Falsity of the Defamatory Language
6) Fault on the Part of D
When is a statement defamatory in the context of a defamation CoA?
A statement is defamatory when it tends to adversely affect P’s reputation. Generally, what you look for is an allegation or representation of fact that sounds like a description of a real world factual event that will affect negatively on P’s reputation


Note, it is not about P's emotional harm, but about harm to P's reputation, and name calling is not defamatory. However, a statement of opinion can be defamatory if a reasonable person would assume that it was based on fact
Does P need to be alive when D makes the defamatory statement for a defamatory CoA?
Yes, P must be alive.
What does the element of publication mean in the context of a defamation CoA?
Publication means D shares statement with one other person other than P himself. It can be satisfied by either intentional or negligent publication.
When do damages need to be proven in defamation cases on the MBE?
- If libel (defamatory statement embodied in a permanent format), P doesn’t need to prove special damages
- If slander (oral defamatory statement), special damages do not need to be proven if slander per se, but do need to be proven if not slander per se.
What are the categories of slander per?
1) A statement relating to P’s business or profession
2) A statement alleging P has committed a crime of moral turpitude.
3) A statement impugning on chastity of a woman.
4) A statement alleging P suffers from a loathsome disease

Note, NY adds a fifth slander per se category of imputation of homosexuality
What are the NY presumed damages for defamation cases?
Libel requires proof of damages in NY if it is not in one of the per se categories for slander and it’s defamatory impact is not clear on the face of the statement but requires additional evidence.
What are the affirmative defenses in defamation cases?
Consent; truth; absolute/qualified privileges
When D raises the affirmative defense of truth in a common law defamation cause of action, who bears the burden of proof?
D bears the burden of proof to show that what he said about P was factually accurate. If he does so, it will exonerate D from any liability
When does an absolute privilege arise as an affirmative defense to a common law defamation cause of action?
1) Spouses talking to each other.
2) Second, governmental officers engaged in conduct of their official duties
When does a qualified privilege arise as an affirmative defense to a common law defamation cause of action?
Qualified privilege arises when there is a strong social interest in encouraging candor, such as recommendations and references or statements made to the police
What are the two limitations on D's qualified privilege in the context of affirmative defenses to a common law defamation cause of action?
1) D must have reasonable belief that what he is saying is accurate.
2) D can’t inject irrelevancy
When is the public concern test applicable in the context of a defamation cause of action?
The public concern test applies when the alleged defamatory language relates to a matter of public concern
What is the two part public concern test in the context of defamation?
1) P must prove falsity of the statement that was made (thus, truth is no longer an affirmative defense, but is an element of the prima facie case which the P must prove)

2) P must prove some degree of fault on part of the D, depending on the identity of P.
In a defamation case involving public concern, what degree of fault does P need to prove if the P is a public figure?
P must show intent or recklessness on part of D
In a defamation case involving public concern, what degree of fault does P need to prove if the P is a private figure?
P must show negligence on behalf of D
What are the four kinds of privacy torts?
1) Appropriation; 2) Intrusion; 3) False Light; and 4) Disclosure of Confidential Fact

Note, in NY There is no common law right of privacy in NY. However, appropriation is protected by NY statute, and thus is the only kind of privacy tort recognized in NY.
What is appropriation and what are the remedies?
When D uses P’s name/image for commercial purpose. The remedy is injunction or money damages.

Note, there is a newsworthiness exception and P does not need to be a celebrity.
What is invasion in the context of privacy torts?
When D invades P’s seclusion, when P is in a location where there is a reasonable expectation of privacy, in a way that would be objectionable to an average person.

Note, no trespass to land is required
What is false light in the context of privacy torts?
When D makes a wide spread dissemination of a major falsehood about P that would be objectionable to an average person.

Note, this is a strict liability tort and the falsehood can be defamatory, but need not be.
What distinguishes false light torts from defamation torts?
Defamation torts are for economic damage, while false light torts are for emotional damages. Also, falsehood covers a bigger range or subjects, but requires wider publication than defamation
For a disclosure of confidential fact tort, what kind of fact needs to be at issue?
A private fact. If it as a public fact/there was a public disclosure, it is not actionable
What are the affirmative defenses for the privacy torts?
1) Consent (defense to all four)
2) Absolute and Qualified Privileges (Defenses to Disclosure of Confidential Fact and False Light)
What are the economic torts?
They involve business transactions (e.g. that accompany contractual dealings), which involve harm to wallet (not harm to body/emotional harm)
What are the elements of a prima facie case of the tort of intentional misrepresentation or fraud?
1) Misrepresentation of a Material Fact; 2) Scienter (deliberately or recklessly); 3) Intent to induce reliance; 4) Causation; 5) Justifiable Reliance; 6) Damages
What are the elements of a prima facie case of the tort of negligent misrepresentation?
1) Misrepresentation by D in a Business/Professional Capacity; 2) Breach of Duty; 3) Causation; 4) Justifiable Reliance; 5) Damages
In NY, what is a prima facie tort and what are its elements?
A prima facie tort consist of intentional infliction of pecuniary harm without justification. The elements are 1) Intent to do Harm; 2) Harm
What are the elements of a prima facie case for the tort of inducing breach of K?
1) A K Exists Between Two Parties That Are Not D; 2) D Has Knowledge of the K; 3) D Engages in Persuasion Designed to Encourage One Party to Breach K (e.g., offer of a better deal/bargain, coercion); and 4) One Party Breaches K Because He Was Convinced by D
What is an affirmative defense to the tort of inducing breach of K?
Privilege, which exists when there is a special relationship between D and one of the contracting parties
What are the elements of a theft of trade secrets tort?
1) P Possesses A Valid Trade Secret; and 2) D Takes The Valid Trade Secret By Improper Means
What are the three definitional elements of a trade secret in the context of theft of trade secrets torts?
1) Information provides a business advantage for the possessor or owner
2) It is not generally known (has to be secret)
3) Owner must take steps to keep it a secret
What are the two alternative improper means in which D may take a trade secret in the context of theft of trade secrets torts?
1) Traitorous insider: a person who learns the secret legitimately (typically an employee) and then commits a breach of trust by leaving the company to use the secret for his own advantage or sells it to someone else.
2) Industrial spy: an outsider who simply cracks through security to discover the secret. Note, it is always improper if D breaks a law, but it is also improper if D violates standards of commercial morality.
What are the elements of a prima facie case for the tort of negligence?
1) A Duty On Part of D to Conform to a Specific Standard of Conduct For Protection of P Against Unreasonable Risk of Injury;
2) A Breach of Duty by D;
3) Causation (Actual and Proximate); and
4) Damage
In negligent torts, what kind of duty does P need to prove D had?
P must prove D had a duty of care and specify what it was. Generally, D owes a duty to foreseeable victims and must exercise the same amount of care as a reasonable prudent person (objective standard). D's duty is to take risk reducing precautions.
To whom does a D owe a duty to in the context of negligent torts?
D owes a duty of care to foreseeable victims but not to unforeseeable victims (those outside the zone of danger)

Note, if a rescuer comes to aid a primary victim and is injured, he will not be barred even if outside the zone of danger
How much care does a D owe in the context of negligent torts?
D owes that amount of care as a hypothetical reasonably prudent person acting under similar circumstances. This is an objective test, determined by the jury, and no allowances are made for D's personal characteristics. However, D's physical characteristics are taken into account or if D has superior skills/knowledge
What are the six situations in which we depart from the reasonable prudent person standard of care in the context of negligent torts?
1) D is a child
2) Premises Liability
3) No duty to act affirmatively
4) D is a Professional Service Provider/Professionals
5) Statutory duties of care
6) Negligent infliction of emotional distress
What is a D's duty of care in a negligence case when D is a child?
-Children under the age of 4 are incapable of negligent acts

-Children between the ages of 4 years old and 18 year old are held to the standard of care of a hypothetical child of similar age, experience, and intelligence acting under similar circumstances (subjective standard). However, if the child is engaged in adult activity, the default reasonable prudent person standard applies
When D is a professional service provider/professionals in a negligence case, what is D's duty of care?
The standard owed by professional to his clients/patients is the care of an average member of that profession practicing in a similar community (custom is conclusive)

Note, doctor’s duty includes explaining risks of any recommended proceeding to patient.
When is a doctor's duty of informed consent waived in the context of negligent torts?
1) If commonly known risk
2) If patient denies/says he doesn’t want to hear
3) If patient is not capable of understanding, incapacitated
4) Doctor also doesn’t have to disclose if it would be medically harmful (doesn’t mean that the disclosure would lead patient to decline the proceeding.)
On the MBE, when determining the duty owed by D when P is hurt on land in D's possession, what two things should you look for?
1) How did the P get hurt? By an activity being carried out by the D or the D’s agents on the land or by a hazardous static condition on the land.
2) What type of entrant am I dealing with? Undiscovered trespasser; discovered trespasser; licensee; invitee
On the MBE, what duty of care does a D owe an undiscovered trespasser in a negligent tort?
The duty owed is zero.
On the MBE, what duty of care does a D owe a discovered trespasser, including an anticipated trespasser, in a negligent tort?
- If P's injury involves activity, reasonable prudent standard of care applies
- If D's injury involves a dangerous condition, possessor has a duty to protect from known, man-made death traps on the land. Note, the condition must be artificial in nature, highly dangerous (capable of doing very serious bodily harm), concealed from the trespasser ( hidden, not apparent), and possessor must have had prior knowledge of the condition.
On the MBE, what duty of care does a D owe a licensee (a person having permission to enter the land for non-business purposes) in a negligent tort?
- If P is injured by an activity, D owes reasonable prudent person standard of care
- If P is injured by a condition, D's duty is triggered if condition is concealed condition and is known to the D.
On the MBE, what duty of care does a D owe an invitee (a person having permission to enter the land for business purposes) in a negligent tort?
- If the P is injured by activity, D has a duty to exercise reasonable prudence under the circumstances.
- If the P is injured by a dangerous condition, D has a duty to protect the invitee from all reasonably knowable traps on the land. Thus, D will be liable if the dangerous condition was concealed from the invitee and if D knew about the condition in advance or could have discovered it thru reasonable inspection (note, here the reasonably prudent person takes into account balance of cost and benefit)
In NY, what is the approach to premises liability for negligent torts?
In NY, all entrants, no matter who they are or what the harm, are owed an ordinary duty of care, or the amount of care a reasonable prudent person would exercise under similar circumstances (note, this takes into account who entrants are and what the harm is)
What is the firefighter rule for premise liability negligent torts?
Police officer or firefighter cannot recover in negligence for an inherent risk of the job. Note, in NY this rule is only applicable against employers and employees.
What is a D's duty of care when a child trespasser is injured on land in his lawful possession?
Child trespassers injured by artificial conditions on land are treated more generously than adults and therefore, D's duty of care is the reasonable prudence under the circumstances standard (think the Attractive Nuisance Doctrine)
What are the two ways a negligence tort D can satisfy his duty and avoid premises liability?
1) Fix the problem
2) Give a warning
In negligence torts, what are statutory duties of care?
A breach of a statue regulating the behavior of D that led to the accident will be conclusive proof that D acted negligently (negligence per se) provided that P falls within the class of persons that the statute seeks to protect and P’s injury is in the class of risks that the statue seeks to prevent (class of person/class of risk test)
In negligence torts, what are the two exceptions to a statutory duty of care even though the class of person/class of risk test is satisfied?
1) Compliance with statute more dangerous than violation
2) Compliance with statute impossible
In negligence torts, does a D generally have duty to act affirmatively or to rescue?
No, a D has no duty unless he voluntary takes up an activity.
What are the exceptions to the rule that D does not have a duty to act affirmatively or to rescue in negligence torts?
1) There is a pre-existing relationship between D and P
2) D caused the peril

Note, if D decides to rescue even though he does not have a duty to rescue, D must rescue as a reasonably prudent person would.

Note, many states have passed good Samaritan statutes to change this rule in order to prevent deterrence rescuers, but NY’s statute only applies to those in certain occupational classes who have training to rescue (nurses, physicians, veterinarians).
In what negligence tort will D’s careless behavior incur liability because P is emotionally distressed even though no physical harm?
Negligent infliction of emotional distress
In what three scenarios is P likely to succeed on a negligent infliction of emotional distress cause of action?
1) A Near Miss case, when D’s negligent conduct put P in a zone of physical danger, P was distressed as a result; and the distress produced subsequent physical manifestations
2) Bystander case, when P is a contemporaneous witness to a negative bodily injury inflicted on a close family member by D’s negligent conduct. (Note, in NY P must be himself in the zone of physical danger and NY is strict on who counts as a close family member)
3) A pre-existing relationship exists between P and D and it is foreseeable that an error or negligent act can cause distress (i.e. Doctor/Patient relationship)
To satisfy breach in a negligent case, what must P show?
D fell short of the obligations of the duty standard. In determining this, identify the wrongful behavior and reason why the identifiable facts fall short or, conversely, reach the standard of care.
What is res ipsa loquitur in a negligence case?
Res ipsa loquitur means the thing speaks for itself and the P relies on it when he cannot identify D's wrongful conduct so as to satisfy the breach element of a negligence CoA and allow the case to be heard by a jury.
What must P demonstrate for res ipsa loquitur?
P must demonstrate that the accident was one normally associated with negligence and normally due to the negligence of someone in D’s position.
What are the two kinds of causation that a P must prove in a negligence cause of action?
1) Actual causation
2) Proximate causation
In negligence, what is actual causation?
Generally, but for causation - that is, that but for the breach P would have escaped injury (jury determines this based on the evidence)
What test for actual causation is applied in negligence cases when there are two careless Ds that release a force in the world that combine, and injure P?
The Substantial Factor Test, which looks at whether the breach standing alone was theoretically capable of causing the injury. If each breach is a substantial factor, both Ds are held jointly and severally liable.
What approach for actual causation is used in negligence cases when one D is guilty of P's injury and the other D is not guilty but it cannot be determined which D is guilty?
The Alternative Causes Approach, where the burden is shifted to D to exonerate himself if D can. If D cannot, he is jointly and severally liable.
In negligence, what is proximate causation?
Proximate causation asks whether it is fair to hold D liable. Generally, it is viewed as fair to make D pay for foreseeable consequences of his breach of duty, but unfair to make D pay for unforeseeable consequences of his breach of duty.
What are four indirect cause patterns in negligence torts in which the D is always found to be a proximate cause?
1) Intervening medical negligence/malpractice
2) Intervening negligent rescues
3) Intervening reaction or protection forces (i.e. injury caused to P by stampede of ppl after a car accident)
4) Subsequent disease or accident
In negligence cases, when a breach of duty leads instantaneously to injury, when will D's breach not be considered a proximate cause?
When the outcome is freakish and bizarre, D is not a proximate cause
What is the eggshell skull rule?
if D committed all the elements of the tort, D liable to all injuries of P no matter how great in scope (D takes P as he finds him)
In NY, what are the distribution of damages when injury causes death?
When a CoA owned by the decedent in his lifetime survives and injury causes death, the damages recovered in the action are part of his estate and will be distributed to his will or by intestacy. (The damages are reachable to the decedent’s creditors)
When is a permanent injunction entered and what must P establish?
A permanent injunction is entered at the conclusion of a trial as part of the relief P receives. P must establish a tort and show that there is 1) "no adequate remedy at law; 2) the tort committed against P impinges on a property interest or protective right; 3) injunction is enforceable (note, negative injunction is easier to enforce, while mandatory injunction is harder to enforce); 4) when balancing the hardships, the benefit to P outweighs the hardship D will suffer.
What is the difference between a negative/prohibitory injunction and a mandatory injunction?
- Negative/prohibitory injunction = command to D to refrain from conduct

- Mandatory injunction = D must undertake affirmative action (note, court are more reluctant to issue this because it is harder to enforce)
What are the three special defenses that will defeat injunctive relief?
1) Unclean hands (if P is guilty of some form of misconduct, P doesn’t have credibility/standing to ask court for this extraordinary relief)
2) Laches (prejudicial delay; since P didn’t sue D earlier, D assumed P was okay with this and as a result, D detrimentally changed his position.)
3) First Amendment (In any case that implicates freedom of speech, be wary of an injunction because reluctance to restraint on free speech)
What are the three affirmative defenses in negligence torts?
1) Traditional contributory negligence
2) Traditional implied assumption of risk
3) Comparative negligence
What is the affirmative defense of traditional contributory negligence that is invoked in negligence torts?
if P in a negligence claim has failed to exercise proper care for his own safety, P will be barred from all recovery.

Note, this is not the law in NY and has been abolished in all but 5 jurisdictions.
What is the affirmative defense of traditional implied assumption of risk that is invoked in negligence torts?
Conduct by P from which we infer the following message: “That’s okay, I’ll take my chances." The key things to look at is whether P has knowledge and appreciation of the risk and whether P takes on the risk voluntarily.

Note, this is not the law in NY and is only the law in 12 states. However, in NY, failure to wear a seatbelt can be shown by D to mitigate P’s recovery.
What is the comparative negligence affirmative defense that is invoked in negligence torts?
It reduces recovery fo P based on P’s failure to exercise care for his own safety, but does not bar recovery entirely.

Note, this is the majority approach, including in NY It is the default on the MBE
What are the two different versions of the comparative negligence affirmative defense in negligence torts?
1) Pure comparative negligence (P always recovers a little bit of money, even if P is assigned bulk of fault)
2) Partial/modified comparative negligence (a P assigned 50% or less of the fault will have his damages reduced, but a P assigned more than 50% of the fault P gets zero)
In torts, what are the three areas in which someone can bring a strict liability cause of action?
1) Injuries caused by animals
2) Abnormally dangerous activities
3) Injuries caused by consumer products
In torts, for what kinds of animals will D be held strictly liable for keeping?
Wild animals, and not domesticated animals, unless D has a domesticated animal with vicious propensities and is aware of those propensities, in which case D will be held strictly liable for the domesticated animal.
When is activity considered abnormally dangerous so as to make D strictly liable for injuries in torts?
The nature of the activity is such that it creates a foreseeable risk of serious harm even when reasonable care is exercised by D and it is not a matter of common usage in the area (community) where D conducts it.
What are the four kinds of tort claims a P can bring when he is injured by a consumer product?
1) Negligence claim (product made wrong; res ipsa)
2) Breach of implied warranty (UCC Article 2)
3) Booby trapped product (battery)
4) Strict liability for product
What are the four elements of a strict liability cause of action for consumer product injuries?
1) D must be a merchant (someone who routinely deals in goods of this type; note, commercial lessors are considered to be merchants; there is no privity requirement so long as merchant is in the chain of distribution)
2) There must be evidence that the product is defective. (manufacturing defect or design defect, including Information defect, such as warnings and instructions
3) Product has not been altered since it left D’s hands (presumption for P that if product moved in ordinary channels of distribution, it is assumed it was not altered, and it will be up to the D to prove to the contrary)
4) P must be making a foreseeable use of the product at the time he’s injured (not limited to the intended uses)
What is a manufacturing defect?
The product differs from all the others that came off the same assembly line in a way that makes it more dangerous than consumers would expect (precautions are irrelevant)
What is a design defect?
When there exists a safer, practical, and cost-effective way to build product. P must posit a hypothetical alternative design and explain why it is safer, practical (does not undermine product's purpose/ make it difficult to use), and cost-effective (not significantly more expensive)

Note, Information defect (warnings and instructions) should be treated as a defect in the product's design. Thus, if a product has certain risks that cannot be physically eliminated in a cost effective way and of which a consumer would not be aware, superior design is therefore the version with the warning.
What is the affirmative defense for strict liability tort claims in the majority of states, including NY?
Comparative fault, meaning any P misuse, misconduct, etc. will lead to P’s damages being reduced.
What is nuisance?
A type of harm in the law of torts, specifically, the interference with the ability to enjoy one’s own property to an unreasonable degree.
In what ways can D cause a nuisance?
By acting deliberately, carelessly, or without any fault at all (so intentional conduct, negligent conduct, or strict liability).
How does a court determine if remedy is appropriate in a nuisance tort case?
Courts balance equities (amount of P’s suffering/degree of interference vs. whether D will be unfairly hindered in his operations/lifestyles if he is to be held liable)
What is vicarious liability?
When P not only has a CoA against the active tortfeasor who actually caused harm, but also has a CoA against a second party who had no direct connection to the injuring causing conduct based on his relationship with the active tortfeasor.
When does respondeat superior apply, making an employer vicariously liable for the torts of his employees?
An employer is vicariously liable for torts of his employee provided employee was acting in the scope of his employment.
Can an employer be held vicariously liable for the intentional torts of his employees?
Generally, no, because intentional torts are outside the scope of employment. However, an employer will be vicariously liable for his employee's intentional torts if force is part of the job, the job creates friction, or the employee engages in an intentional tort out of a misguided effort to advance the employer’s interest
Is the hiring party vicariously liable for the torts of his independent contractors?
Generally, no, except that a land possessor will be vicarious liable if an independent contractor injures an invitee.
On the MBE, is an automobile owner vicariously liable for the torts of someone driving his automobile?
Generally no, except if the owner lends his car to the driver so the driver can do an errand for the owner, because this creates a principle/agent relationship
In NY, is an automobile owner vicariously liable for the torts of someone driving his automobile?
Yes, in NY an automobile driver is vicariously liable for anyone who is driving his car with his permission, unless the owner is a rental car company, in which case there will be no vicarious liability
Are parents vicariously liable for the torts of their children?
Generally no. However, in NY, parents have statutory liability for torts of children for a low level dollar amount
What are the remedies that co-defendants against one another?
1) Indemnification (can recover 100% from co-D)
2) Contribution (can recover the percentage amount co-D is at fault, as determined by the jury)

Note, a non-manufacturer is entitled to indemnification from the manufacturer in a strict product liability case and a vicariously liable party can get full indemnification from the active tortfeasor.
What is the remedy for loss of consortium?
A second separate CoA against all available Ds that can be brought by the injured victim's uninjured spouse. It compensates for three things: 1) loss of household services; 2) loss of society (means loss of companionship); 3) loss of sex