Torts Bar Prep

Front 1

Battery, Elements? 4

Back 1

harmful or offensive (unpermitted) contact + to another + Intent + causation

Front 2

Assault, Elements? 3

Back 2

D places P in apprehension of imminent harm + intent + causation

Front 3

False imprisonment, Elements? 4

Back 3

D confines P + to a bounded area + intent + causation

Front 4

Intentional Infliction of Emotional Distress, Elements?

Back 4

Outrageous conduct + intent or recklessness + causation + Damages (P must suffer severe distress to trigger damages: note the harm need not be physical but P must prove damages)

Front 5

Is IIED more likely if it is claimed by a fragile person?

Back 5

YES: Children, Elderly and Pregnant Women get heightened treatment

Front 6

Is IIED more likely if claimed against a hotel?

Back 6

Yes. Common carriers have a heightened duty

Front 7

Element of Trespass to land

Back 7

An act of physical invasion + Onto Land + Intent + Causation

Front 8

Trespass to chattels or conversion

Back 8

An act of interfering with right of possession or physical invasion + intent + causation + damages

Front 9

Could theft of electronic records be considered conversion

Back 9

YES.

Front 10

What are the 3 defenses to intentional torts?

Back 10

Consent, Self Defense, Defense of others and Defense of Property and Necessity

Front 11

Describe 2 types of implied consent as a defense to intentional torts.

Back 11

1. By custom or usage (eg sport game, Dr’s office, or crowded train)
2. D’s reasonable interpretation of P’s observable conduct (think kiss in romantic circumstances)

Front 12

Is mistake a valid defense to intentional torts?

Back 12

No, but a reasonable mistake is permitted in self defense, defense of others and defense of property—think shopkeepers privilege

Front 13

In NY, what limits self-defense?

Back 13

The retreat theory, which says that when defending self, you must retreat if possible; except at home

Front 14

2 types of necessity?

Back 14

Public and Private

Front 15

Define public necessity.

Back 15

D interferes with P’s property to protect community or a public interest

Front 16

Define private necessity.

Back 16

D interferes with P’s property to protect a personal interest; BUT D must nonetheless pay for harms, except for nominal or punitive damages

Front 17

What additional rights does a person invoking private necessity get?

Back 17

Entitled to remain on land due to necessity; right of ejectment is suspended; D has right of sanctuary.

Front 18

What are the elements of defamation? 6

Back 18

1.Defamatory language
2.of or concerning the P
3.publication
4.damage to P reputation
If of pubic concern, the 2 additional elements must be proven
5.falsity
6. fault (malice)

Front 19

Can a dead person be defamed?

Back 19

No

Front 20

What does defamation attack?

Back 20

reputation

Front 21

What if publication is made only to the P?

Back 21

NO liability --No real publication

Front 22

What are the slander per se categories?

Back 22

1. adversely reflects on one's business or professional conduct
2. loathsome disease
3. one is guilty of a crime involving moral turpetude
4. a woman is unchaste

Front 23

How does slander per se affect the P's case?

Back 23

If the charge is slander per se, then no special damages need be proven; HOWEVER if the charge is NOT slander per se, the the P must prove damages

Front 24

What is the difference between libel and slander? what effect?

Back 24

Libel is written or printed publication (inc. radio and TV) and the P need not prove special damages
Slander is spoken and MUST prove special damages unless per se

Front 25

Can an entire group be defamed?

Back 25

YES if it is small enough, all members can bring a CoA.

Front 26

In NY is a slur regarding homosexuality defamation?

Back 26

YES-NEW YORK DISTINCTION: imputation of homosexuality is slander per se

Front 27

In a CoA for defamation, in what case must damages be proven?

Back 27

When the complaint is for slander (not per se)

Front 28

How is the std for defmation different for public officials/figures?

Back 28

A public official/figure must prove malice--the D knowingly made a false statement AND published reckelessly-as to whether it was false

Front 29

What are the defenses to defamation? (2)

Back 29

1. truth
2. consent

Front 30

Do any privileges apply to defamatory speech?

Back 30

YES 2 categories of privilege:
1. absolute-applies always
2. qualified-can be lost

Front 31

Define asolute privilege against defamation.

Back 31

1. remarks made during judicial proceedings,
2. by legislators in debate,
3. by federal executive officials
4. in compelled broadcasts
5. between spouses

Front 32

Define qualified privilege against defamation.

Back 32

1. Arise when in public interest to encourage candor
2. No complete list—examples:
a. statements made to police
b. limited to: good faith and relevant matters; Privilege may be lost if not in scope or published w/malice

Front 33

What are the Privacy Torts?

Back 33

i. Appropriation
ii. Intrusion
iii. False Light
iv. Disclosure

Front 34

Define appropriation.

Back 34

1. D uses P’s name or image for commercial purposes;
2. there is an exclusion for newsworthy coverage
3. NEW YORK EXCEPTION: this privacy tort is the only privacy tort in NY

Front 35

Define Intrusion:

Back 35

An invasion by the D of the P’s seclusion; i.e. spying, listening
1. Caution: you must have an expectation of privacy to invoke this tort
2. There is no requirement that there be a trespass

Front 36

Define False Light:

Back 36

Dissemination of a falsehood about a P that would be objectionable to an average person; the D is running all over town spreading lies about the P

Front 37

Distinguish false light from defamation.

Back 37

1. Damages here can be beyond economic: they can be emotional
2. This may not require defamation (think of catholic who is purported to be jewish—not harmful but disconcerting to catholic; also think of guy with swollen, obese-looking face);

Front 38

Define Disclosure:

Back 38

Disclosure of confidential info that would be objectionable to the average person;
1. i.e. Dr. gives your health records to others
2. newsworthiness exception
3. dual life fact pattern: P operates in 2 or more spheres (work/home); P keeps spheres separate but someone discloses facts between the spheres: think gay guy at work

Front 39

Can the right of privacy be the basis for a CoA of a dead person's estate?

Back 39

NO

Front 40

What Defenses to privacy torts?

Back 40

1. Consent
2. Privilege: In false light and disclosure; you can use the spousal exception and gov’t statement only

Front 41

What are 4 economic torts? 2 additional NY?

Back 41

i. Fraud
ii. Inducing Breach of K
iii. Negligent Misrepresentation
iv. Malicious Proscution
v. Prima Facie Tort: NY ONLY
vi. Theft of trade secrets NY ONLY

Front 42

Elements of Fraud; Defenses? 5

Back 42

1. The D must make a factual MISREPRESENTATION to P in connection to business transaction; silence is not enough
2. SCIENTER; fault or intent to defraud the P this is knowledge that what you are saying is wrong
3. INTENT to induce reliance:
4. P Justifiably RELIES
5. Damages: D must cause ECONOMIC LOSS (actual reliance)
NO DEFENSES

Front 43

Elements of Inducing Breach of K OR Tortious Interference OR Interference with business relations

Back 43

Elements:
a. There must be a K; Not terminable at will
b. D has knowledge of K
c. Persuasion of a party by D to abandon the K
d. Buyer must breach in reliance on D’s inducement
e. Damages

Front 44

Defense to Tortious interference.

Back 44

Privilege: if there is a “special relationship” between the pursuaded/ing parties, the courts will not find inducement of breach; this relationship is like father/son, clergy, lawyers,

Front 45

Defense to Fraud

Back 45

NONE--No affirmative defenses, must refute elements

Front 46

Elements of Negligent Misrepresentation:

Back 46

a. Misrepresentation
b. Breach of duty—distinguished from fraud; often applied against fiduciaries
c. Causation
d. Justifiable reliance
e. Damages

Front 47

Elements of malicious prosecution: 5

Back 47

1. institution of criminal legal proceedings
2. termination in P's favor
3. absence of probable cause
4. improper purpose
5. damages
Prosecutors are immune; applies to civil in some jurisd.

Front 48

Elements of Prima Facie Tort: NY ONLY:

Back 48

1. the intentional infliction of a pecuniary harm without justification; examples: a radio stations put out the top ten -or- maliciously selling products below cost to starve rival
2. Elements: Duty, Breach, Cause, and Damage (must be pecuniary harm)

Front 49

Elements of Theft of trade secrets NY ONLY:

Back 49

a. The P must possess a valid trade secret; Valid trade secret is info that provides a business advantage to the possessor
ii. The information cannot be publicly known
iii. The possessor must keep it secret
iv. The possessor must take the secret by improper means
(eg: Traitorous insiders, Industrial spy learns of process by illegal, torious, or fraudulent means; the improper means is breaching the employment K)

Front 50

Negligence elements?

Back 50

i. The D must be owed a Duty
ii. Breach
iii. Actual and proximate Cause
iv. Damage

Front 51

What pre-natal torts can be brought against Dr/Def.

Back 51

Negligence can be found where:
1. if D negligently impacts mom
2. Dr. fails to diagnose birth defect; MOM will recover cost of enhanced care but no emotional distress
3. Botched sterilization--NO recovery
3.

Front 52

What unforeseeable P's are owed the duty of care

Back 52

ONLY foreseeable P's are owed the duty of care;
EXCEPTION: rescuers, (remember attending physicians are foreseeable when negligence occurs)

Front 53

In a defamation case, what conduct of the D must be proven if the defamation concerns a public matter but the P is a private person

Back 53

negligence. BUT public person and concern, the P needs to prove malice; Think-when concern is public, we have a constitutional right to discuss it.

Front 54

under wrongful birth, what can the P recover?

Back 54

additional medical expenses, pai and suffereing in labor--but NOT child rearing expenes

Front 55

Do physical traits affect the duty of care owed?

Back 55

YES--Blind, deaf held to std for their category; ie RP deaf person

Front 56

Do professional have a higher duty of care?

Back 56

YES the reasonably prudent Dr.

Front 57

Who will Dr's be compared to in establishing the standard of care they should give?

Back 57

IT Depends-a reg. Dr. wil be judged according to community stds. A specialist will be judged against national standards

Front 58

Describe 3 standards of care that apply to children.

Back 58

1. children under 4 have NO duty
2. children 5-18 must meet a std of care that is comparable to similar age, experience and intelligence acting under similar circumstances
3. When engaged in adult activity (eg any engine) child is held to RPP

Front 59

What duty of care is owed to an undiscovered trespasser?

Back 59

NONE

Front 60

What duty of care is owed to a known or discovered trespasser?

Back 60

1. IF Injury caused by activities, standard of care is reasonable care
2. Duty is to protect trespasser from conditions DANGEROUS, KNOWN AND MAN-MADE to the landowner

Front 61

What duty of care is owed to a Licensee (social guests)?

Back 61

1. IF Injury caused by activities, standard of care is reasonable care
2. Duty is to protect trespasser from conditions DANGEROUS, KNOWN AND HIDDEN to the landowner

Front 62

What duty of care is owed to Invitees (enter for a business purpose or enter land that is generally open to the public.

Back 62

1. IF Injury caused by activities, standard of care is reasonable care
2. Duty is to protect trespasser from conditions DANGEROUS, KNOWN (OR KNOWABLE UPON REASONABLE INSPECTION) AND HIDDEN to the landownerCondition was known about in advance or could have discovered through a reasonable inspection (inspection conducted as often by a RPP)

Front 63

Does NY have the same standards o care for entrants onto land?

Back 63

NY has abolished special duties by landowners … NY uses RPP for all landowners

Front 64

What criteria must be established to warrant negligence per se?

Back 64

Test “class of person, class of risk”
• Exception: If statutory compliance would be more dangerous than statutory violation, then don’t use the statute

Front 65

When does a person have a duty to act?

Back 65

NEVER
Except:
1. If defendant put plaintiff in position of peril, then there is a duty to rescue
2. If defendant is in a pre-existing relationship with plaintiff, then there is a duty to rescue

Front 66

When does a person have a duty to act in NY?

Back 66

Under Good Samaritan Statute: Only applies in NY to doctors, nurses and vets; Protected if they do act gratuitously

Front 67

2 types of Negligent infliction of emotional distress?

Back 67

a. NEAR MISS CLAIM results in heart attacks or miscarriages; latent harms ok too
b. BYSTANDER CLAIM; P is put in fear over near miss or negligent physical harm against another

Front 68

What duty is owed by a common carrier to its invitees? Is it limited?

Back 68

Duty to inspect for harms. limited if invitees (or licensee) exceed the purpose for which they are on the land, the license or invitation is suspended and so is duty

Front 69

What is necessary to recover under Negligent infliction of emotional distress--Bystander claim? (3)

Back 69

Negligence +
1. Physically injured party must be a close family member
2. Have to be right there to the injury
3. Has to be when it happens, not come upon the scene afterwards
+ Causation of emotional distress (grief, sadness)

Front 70

What must be shown for Negligent infliction of emotional distress--near miss?

Back 70

Negligence +
Plaintiff must have been in a “zone of physical danger”
+ Causation of emotional distress (grief, sadness) + physical harm

Front 71

Element of the Attractive Nuissance Doctrine?

Back 71

1. Dangerous MAN-MADE condition on the land
2. owner knows or should know it attracts kids
3. the condition is likel to cuase injury b/c child's inability to appreciate the risk*FOCUS HERE
4. the expense to remedy is slight compared to magnitude of the risk

Front 72

Which requires physical symptoms: negligent or intentional infliction of emotional distress?

Back 72

Under NEGLIGENT, MUST cause physical symptons of distress + all other elements

Front 73

Who breaches in a case of res ipsa loquitor?

Back 73

We do not know.

Front 74

What must be proven in a case of res ipsa loquitor?

Back 74

1. the accident that occurred is normally associated with carelessness
2. accident is normally due to negligence of someone in D’s position
Add control element:: if the D had control over the objects of harm then this helps the “res ipsa” analysis

Front 75

What argument and counter-argument are used for actual cause?

Back 75

1. Argument: BUT FOR test
2. Counter: Even IF...

Front 76

In a case of merged causes, which will be liable?

Back 76

Either one will be fully liable. think two fires; when you have two harms, each D can claim that their bad behavior was not the “but for” cause because the other fire could have caused the harm
COUNTER ARGUMENT: if each fire by itself was a substantial factor, then each cause is deemed a cause-in-fact

Front 77

If the actual cause cannot be determned between 2 or more tortfeasors, who is liable?

Back 77

We do not care. the burden is shifted to the D's to dispute it. Think of 2 hunters

Front 78

What 2 components make up proximate cause?

Back 78

Fairness and foreseeability

Front 79

What is the difference between foreseeable intervening forces and independent intervening forces? What element do they affect?

Back 79

Affects: Proximate Cause; Foreseeable intervening forces will not break the causal link, while independent intervening forces will. Remember if the harm is unforeseeable, both will break the causal link.

Front 80

What is the effect of traditional contributory negligence? Assumption of risk?

Back 80

Under contributory negligence, P was himself also negligent--this bars recover. Under Assumption of risk, same analysis

Front 81

What is Pure Comparative Negligence? Is this the rule?

Back 81

This is the Rule in NY AND MBE:
1. Once it is established that the P has contributed to his own harm; jury assigns percentage to P’s degree of fault
2. Goes strictly by the numbers
3. If D was partly negligent, the P always recovers something even if the P is assigned most of fault

Front 82

What is modified or partial comparative negligence?

Back 82

1. If P is liable less than 50% D must pay all
2. If P is liable more than 50% then P must assume own liablity

Front 83

What is Hybrid Comparative negligence? where used?

Back 83

Same as modified; ONLY USED IN NY for PERSONAL INJURY;
1. if P is liable 50% or less, use pure (each bears own %)
2. if P is liable more than 50%, no award (even if D was 49% liable)

Front 84

What is the “Eggshell skull” doctrine?

Back 84

1. When plaintiff proves all other elements, defendant will be liable for all harm suffered even if harm is surprisingly great in scope
2. Defendant :must take plaintiff as plaintiff is found”
3. Applies to every tort on bar exam

Front 85

Are dogs treated as wild animals on the MBE?

Back 85

NO, But if dog has "vicious propensities" established by 1 bite then strict liablity will apply?

Front 86

3 tests to determine Ultra Hazardous activity?

Back 86

1. Cannot be made safe
2. Imposes a risk of a severe harm (something goes wrong will be catastrophic)
3. Activity has to be uncommon in the community where D is acting

Front 87

4 elements to prove Strict Products Liability?

Back 87

1. D was a merchant or in chain of dist
2. P must demonstrate 1 of 2 product defects: manufacturing or design
3. no alteration since it left the merchants hands
4. P must make a foreseeable use/misuse of the product at the time he gets hurt

Front 88

For purposes of strict liablity, who is a merchant?

Back 88

All merchants in distribution chain and Commercial Lessors EXCEPTIONS: Service providers and Casual sellers

Front 89

Define Manufacturing defects.

Back 89

Product deviates from design “one in a million”

Front 90

Define Design Defect:

Back 90

Design Defect exists when a product could have been built better; P must prove alternative could have been:
a. safer
b. economically feasible; and
c. practical; can’t make it hard to use, of defeat functionality

Front 91

Can faulty product information (instructions and warnings) be grounds for SL?

Back 91

YES, it is defective to sell the product without an adequate warning or instructions and SL attaches
BUT warning will not substitute for making a good product

Front 92

Who must prove that no alteration occurred since product left the merchants hands?

Back 92

Presumption favors the P if the product has moved in the ordinary channels of commerce

Front 93

Who does SPL protect?

Back 93

P must be a foreseeable user making a foreseeable use of the product
Almost anyone is a foreseeable user – members of purchaser household, neighbors
Foreseeable use need not be an appropriate, proper use of the product--could be foreseeabe misuse
• Many misuses of a product are foreseeable

Front 94

What affirmative defenses to SPL?

Back 94

Comparative liability. If P misused, could be negligent

Front 95

Define NUISANCE. What 2 tests apply?

Back 95

Land possessor suffers interference w/ use/enjoyment of property to an unreasonable degree
-Cts apply 2 tests:
1. balance utility of nuissance v. quiet enjoyment, AND
2. is nuissance reasonable given the neighborhood, land values and alternatives available to the P

Front 96

4 common VICARIOUS LIABILITY scenarios.

Back 96

1. Employer/employee
2. Hiring party/independent contractor
3. Automobile owner/driver
4. Parents/kids

Front 97

Distinguish Frolic from detour.

Back 97

• Detour is a minor departure from the work, mere detour
• Frolic is when D has gone outside scope of employment, major departure

Front 98

Is there VL between an Employer/employee?

Back 98

YES, Vicarious liable provided committed w/i the scope of employment

Front 99

Exceptions to VL between an Employer/employee?

Back 99

Intentional torts
• General rule – outside the scope of employment
• Situations where intentional torts part of employment:
-Security guard, night club bouncer
-Job generates friction btw employee/customer (repo man)
-Intentional tort done affirmatively to serve employers interests, albeit a misguided action

Front 100

Is there VL for Hiring party/independent contractor? Exception?

Back 100

No – hiring party not normally liable for torts of IC
Exception: Possessor of real estate is liable if IC hurts an invitee

Front 101

Is there VL for Automobile owner/driver? Exception?

Back 101

NO, General rule – owner not vicariously liable for the torts of an authorized driver
Exception – driver doing errand for owner, agency relationship and vicarious liability

Front 102

Is there VL for Automobile owner/driver in NY? Exception?

Back 102

NY – imposes vicarious liability on owner. Presumption that someone driving your car has your permission.Exception by fed statute – commercial car rental companies doing business in interstate commerce, not vicariously liable for driver

Front 103

D has 9 yr old son, keeps loaded pistol on the table. Son picks up pistol and shoots neighbor. Is D liable for the actions of son?

Back 103

Yes, not vicarious liability, “negligent entrustment.” D did not act as a RPP.

Front 104

Is there VL for Parents/kids?
Exception?

Back 104

NO-Parent’s not vicariously liable for their kids
Exception: NY – statutory exception, liable up to 5k

Front 105

What is Comparative contribution?

Back 105

Just like comp. negligence
Each D is assigned a % of fault

Front 106

Indemnification

Back 106

100% payment by someone else

Front 107

Contribution

Back 107

partial payment by someone else

Front 108

What is interference with consortium?

Back 108

When married, the uninjured spouse of a victim, is also given second and separate COA against tort feasor for 3 things
i. Loss services—no one to do household activities
ii. Loss of society—loneliness
iii. Loss of sex--

Front 109

Who is Not covered by Worker’s Compensation?

Back 109

• Independent contractors
• Employees of not-for-profit corporations
• Part time, domestic or household employees
• Members of the clergy
• Teachers

Front 110

What types of injuries are coveredunder workers comp?

Back 110

Any injury on the job except
1. Injury due solely to the employee’s own intoxication
2. Self inflicted or employee inflicted harm not covered under
3. Voluntary Athletic activities not covered(company softball)

Front 111

What is excluded from workers comp?

Back 111

outrageous after hours conduct--think hide and go seek in a commercial bakery

Front 112

What must an employee do to win an award under workers comp?

Back 112

File a cliam--If there are disputes, the proceeding are handled by admin procedure
The employer is strictly liable but recovery is limited—there is no recovery for pain and suffering or punitive damages