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169 Cards in this Set

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For intentional torts, is the hypersensitivity of the plaintiff taken into account?
NEVER
What incapacity defenses are available for intentional torts?
NONE

Any D who commits all the elements of any intentional tort is liable. Doesn’t matter if D is a child, insane, intoxicated, developmentally disabled, etc.
What is the definition of "intent" with regard to intentional torts?
D intends an act if:

1. it is their desire to produce the forbidden result OR
2. if D acts with virtually certain knowledge that the result will come to pass.
List the 7 intentional torts that tend to show up on the exam.
Battery

Assault

False Imprisonment

Intentional infliction of emotional distress

Trespass to land

Trespass to chattels

Conversion
What are the 2 elements of battery?
1. D must commit a harmful OR offensive contact AND
2. the contact must be w/ the plaintiff’s person
What are the elements of assault?
1. D must place the P in apprehension of an immediate battery AND
2. The apprehension must be produced deliberately (look for the desire of D to produce this mental consequence).
What is "apprehension" for purposes of assault?
Knowledge. (Eg, you apprehend that you are about to be touched in an offensive manner.)

A person's actual FEAR or NERVOUSNESS DOES NOT MATTER.

(David and Goliath issue; unloaded gun issue)
What is the standard for an "offensive" touching in battery?
offensive = unpermitted, to a person of ordinary, normal sensitivity
What constitutes "contact" with a person for purposes of battery?
Anything connected to P counts.

Anything P is holding or touching is considered PART of P’s person. (Eg, a dog on a dog leash counts; a purse counts)
Can words alone constitute assault? Why or why not?
no. they lack the necessary immediacy of threat.

general rule: a mere verbal threat can never be an assault UNLESS it is accompanied by physical conduct
Can words negate the immediacy required for an action to be an assault?
YES.

Even if there is threatening physical conduct, if there are accompanying words, they can NEGATE immediacy.

Look for conditional words – “If”. Eg, “If you weren’t my best friend, I’d hit you right now”

Look for words in future tense – a threat to be carried out LATER
What are the elements of false imprisonment?
1. Have to show D committed an act of restraint AND

2. Have to show that the consequence of the restraint was confinement in a bounded area. AND,

3. D has to have the purpose or desire to imprison the P. Has to at intentionally.
Can a threat be adequate to constitute false imprisonment?
Yes.

Threats ARE sufficient, provided they would operate on the mind of a reasonable person as a plausible threat

Eg: “If you leave the room in the next 20 minutes, I’m going to kill your child”

This is a sufficient "act of restraint"
Can an omission be an act of restraint for purposes of false imprisonment?
YES.

If a D has obligation to help P move about, then failure to act can be an act of restraint.

Eg, disabled person on airplane needs wheelchair. Flight crew does nothing when they land. The failure to get the wheelchair is an act of restraint.

Eg, on bus, P pulls cord to stop at the next stop. Bus hears it but purposefully does not stop. = false imprisonment.
Does a P have to know about a confinement when it happens in order to make out a claim of false imprisonment?
YES -- there must be some emotional or physical harm resulting from the confinement.
Is denying someone admission false imprisonment? Why or why not?
NO.

For s/o to be "confined in a bounded area" for purposes of false imprisonment, they must be locked IN, not OUT.
If P is confined, but there is a possible way to escape, is it still false imprisonment?
It depends.

If there is a REASONABLE means of escape that can be REASONABLY DISCOVERED, it’s not a bounded area, and therefore not false imprisonment.

- if you have to crawl through rats and sewage to get out, it's not reasonable
- if there's a secret passageway P doesn't know about, it's still false imprisonment.
What are the elements of intentional infliction of emotional distress?
1. D engages in outrageous conduct, AND

2. P suffers severe distress

3. Must be done with the desire/purpose to really mess with the P
When is a D's conduct "outrageous" for purposes of intentional infliction of emotional distress?
Conduct is outrageous if it exceeds all bounds of decency tolerated in a civilized society.
Can name-calling be "outrageous conduct" for purposes of intentional infliction of emotional distress?
NO.
List FOUR factors that often tend to raise normally non-outrageous behavior to outrageous behavior for purposes of intentional infliction of emotional distress.
1. If bad behavior is continuous or repetitive

2. If the D is a common carrier or an innkeeper

3. If P is a member of a fragile class of persons, and the fragile nature of the P is apparent (fragile groups: young children, the elderly, pregnant women)

4. If P has a phobia that the D KNOWS about in advance (eg, deliberately capitalizing on someone’s weak spot IS outrageous)
How distressed does a P have to be to make out a claim for intentional infliction of emotional distress?
"SEVERELY distressed"
What are the elements of trespass to land?
1. A physical invasion of land

2. the only intent required is that D got to the location on purpose. It was D’s desire to be at this place on the earth’s surface.
(NO requirement that D be aware that she crossed a boundary line, that D be defying property rights, or that D be acting to upset or agitate P!)
Are non-physical invasions of land trespasses?
NO. ONLY physical invasions count.

(sound, light, etc are non-physical)
If neighbor's kid throws a ball over your back yard and it lands on the street on the other side, but never touches your lawn, is it a trespass?
YES -- "land" for purposes of trespass includes surface, air above, and soil below (to a reasonable distance)
What is the difference btw trespass to chattels and conversion?
The degree of interference. Conversion entails a significant degree of interference; trespass to chattel is much more minor.
What are the elements of trespass to chattels?
D engages in an intentional interference w/ P’s personal property.
What are the elements of conversion?
D engages in an intentional interference w/ P’s personal property.
What is "personal property" for purposes of trespass to chattels and conversion?
Personal property = anything you own that is tangible other than land and buildings. (Eg, car, purse, computer, etc.)
What is "interference" with personal property for purposes of trespass to chattels and conversion?
“interference” =

1. deliberate damage to the object (bending, breaking, crushing, scratching), OR

2. theft of the object
Is a mistake as to OWNERSHIP a defense to the tort of trespass to chattels OR conversion?
NO.
What can P recover in terms of damages if P makes out a claim of trespass to chattels?
P can only recover cost of repair of the item that was damaged.
What can P recover in terms of damages if P makes out a claim of conversion?
P has option of treating the harm as a sale - eg, P can recover an item’s FULL VALUE, and not merely the cost of repair. (eg, you broke it, you buy it)

- P can choose repair cost or sale as damage amount.
List the FIVE affirmative defenses generally available for intentional torts.
1. Consent

2. Self-Defense

3. Defense of 3rd Persons

4. Defense of Your Property

5. Necessity
For which intentional torts is consent an affirmative defense?
ALL seven of them.
Is anyone able to give consent (for purposes of consent as an affirmative defense to an intentional tort)?
NO. ONLY people with legal capacity can give consent.
Does a person have to have legal capacity to commit an intentional tort?
NO.
What two kinds of consent to an intentional tort are there?
Express and implied consent.
What is express consent for purposes of consent as an affirmative defense to an intentional tort)? (Exceptions?)
Consent in explicit words – spoken or written – that gives D permission to behave in a certain fashion

EXCEPTION: (often tested)-if express consent is secured as a result of fraud or duress, then it is DISREGARDED!
What is implied consent (for purposes of establishing an affirmative defense to an intentional tort)?
Consent that is noe expressly stated in words. Two ways there can be implied consent:

1. Implied consent based on custom or usage

2. Implied consent based on D’s reasonable interpretation of P’s objective conduct
Is it possible for someone to exceed the scope of consent for purposes of establishing an intentional tort?
YES -- consent does have a scope, and the defense of consent is negated if the scope was exceeded.
In order to make out any of hte affrimative defenses of Self-Defense, Defense of 3rd Persons, or Defense of Your Property, what does a Defendant have to show?
1. That D acted with proper TIMING (= the threat the D claims she was responding to was either in progress or imminent)

AND

2. Standard of accuracy (= D must have a reasonable belief that the threat is genuine, but doesn’t have to be completely accurate – mistakes are ok if they are reasonable.)
If a D is asserting self-defense, is there any limitation on the type of force that they can have used and still successfully assert that defense?
Yes - D is limited to the response that is necessary/ appropriate under the circumstances

If D uses excessive force, D is liable for a tort
In what kinds of cases is the affirmative defense of neccesity allowed?
Necessity is ONLY a defense to property torts (trespass to land, trespass to chattels, & conversion)
What are the 2 different kinds of necessity defense to property torts?
1. Public necessity

2. Private necessity
What is public necessity (for purposes of the necessity defense)?
Where D invades P’s property in an emergency to protect the community as a whole, or a significant group of people.

D has no liability in this case – it’s an absolute defense.

Can be protecting real property or personal property.
What is private necessity (for purposes of the necessity defense)?
Interference w/ a P’s private property in an emergency to protect an interest of your own.

NOT an absolute defense.
What are the legal consequences of a D taking advantage of the private necessity defense? (3)
3 legal consequences:

1. D must pay for the actual harm inflicted
2. D is not liable for nominal/punitive damages
3. as long as the emergency persists, P cannot expel D from her land (right of sanctuary – a right to “ride out the storm” until the emergency is at an end)
What are the 3 elements of defamation?
1. D must make a defamatory statement that specifically IDs the P

2. There has to be a publication

3. damages, maybe.
What is a defamatory statement?
A written or oral statement that tends to adversely affect a person's reputation. (An allegation of FACT about the P that reflects negatively on her character.)
Can name-calling and insults be defamatory?
NO.
What are some of the personal characteristics that are commonly attacked in a defamatory statement?
Honesty

Loyalty

Sexual modesty
Can statements of opinion be defamatory. Is yes, when?
Yes, in some situations.

- If a listener would assume there was fact to backup the opinion, it is considered defamatory

- If it’s an opinion about a stranger, then it’s speculation, it is not considered defamatory
Can a statement be defamatory if the person about whom the statement is made is dead?
No. It can't hurt their reputation today if they are dead.
If a statement is made to one other person in private, can it be defamatory?
NO! Requirement of publicatoin.
What is publication for purposes of defamation?
= defamatory info has to be revealed to at least one person other than the P herself.
Does publication have to be intentional in order to make out a claim for defamation?
NO. Can be intentional or negligent – either way, there is liability.
Do Ps always have to prove damages in order to make out a claim of defamation?
No.

If it's libel, P does not have to prove any damages.

But some kinds of slander do require proof of damages.
What is libel?
= a defamation that is written down or otherwise permanently memorialized. Film, video, etc.
What is slander?
= oral defamation
What does a P have to show in order to get to a jury on a libel claim?
1. there was a defamatory statement that specifically IDed them and was made by the D

2. It was published.

- NO damages have to be shown!!
List the four types of statements that constitute slander per se.
= slanders that are especially devastating to reputation of P.

4 categories:

a. Statement by D concerning the P’s business or profession

b. Statement that P has committed a crime of moral turpitude (eg, sexual abuse; arson & insurance fraud)

c. Statement imputing unchastity to a woman. Includes any statement that a single woman is sexually active.

d. Statement that P suffers from a loathsome disease. Leprosy, venereal disease.
Does a P have to prove damages in order to get to a jury on a claim of slander per se?
NO. It's treated like libel.
Does a P have to prove damages in order to get to a jury on a claim of slander (not slander per se)?
YES. (Have to show ECONOMIC harm/damage)
What are the FOUR defenses to a defamation claim?
1. Consent

2. Truth

3. Privilege

4. First Amendment
What are the two types of privileges that can be asserted as a defense to defamation?
1. Absolute privilege

2. Qualified privilege
What is an absolute privilege for purposes of a defense to a defamation claim? List 2 kinds of absolute privilege.
These flow from the identity of the D.

i. Communication btw spouses – if a H says something defamatory about a person to his W, it’s not actionable.

ii. Officers of the government engaged in their official duties – judicial branch, esp often test. Judges, attorneys, etc – anything said in a courtroom can’t be the subsequent subject of a defamation claim
What is a qualified privilege for purposes of a defense to a defamation claim? Explain.
Turns on WHEN the statement is made and WHY it is made

Socially valuable speech is the subject of a qualified privilege – (eg, letters of recommendation, statements made to police). Why: we want to encourage honesty and full disclosure

If D can show that any error was made in good faith belief that the statement was accurate and that the material was relevant to the socially valuable purpose of the speech, then D is not liable.

If a speaker deliberately injects falsehoods or irrelevancies, there is no privilege, and there is defamation liability.
What does a P have to prove to counter a First Amendment defense in a claim of defamation, in addition to the regular common law defamation elements?
i. The falsity of the statement AND
ii. Fault on the part of the defendant.
What type of fault has to be shown by a P to counter a First Amendment defense to a claim of defamation?
the type of fault that must be proved depends on the status of the P

a. If P is a public figure, they have to show malice (= knowledge that the statement was false OR reckless disregard for whether or not it was false.)

b. Private persons do NOT need to prove malice – only negligence regarding the falsity of the statement
List the FIVE types of PRIVACY tort.
1. Appropriation
2. Right of publicity
3. Intrusion
4. False light
5. Disclosure
What is the tort of appropriation?
The unauthorized use of D’s name or picture for a commercial purpose
What is the tort of violation of the right to publicity?
1. similar to appropriation. usually, this right comes into play when s/o’s image is used in TM, in advertising, or on packaging

2. newsworthiness EXCEPTION: if something is newsworthy and s/o’s photo is run in association w/ that newsworthy event, this is protected.
What is the tort of intrusion?
An invasion by the D of P’s solitude in a way that would be objectionable to the average person.

Eavesdropping, wiretapping, peeping toms, peering in neighbor’s windows, etc
What is the tort of false light?
A D makes a widespread dissemination of a major falsehood about the P that would be objectionable to an average person

The publication element of defamation requires disclosure to only one person normally; but for this one, the D has to tell LOTS of people.
What is the tort of disclosure? Exceptions?
Widespread dissemination of confidential info about the P that is objectionable to the average person, eg:

a. Financial info
b. Academic info
c. Medical info

EXCEPTION: If the info is important to the general public and is newsworthy, then we allow publication under the 1st amendment and there is not tort

EXCEPTION: the facts in Q must be genuinely confidential in order for the tort to lie
Is trespass required to make out the tort of invasion?
NO.
What is a necessary prerequisite to a P being able to recover on a claim of intrusion?
P can only recover if she is in a place where there is an expectation of privacy
To make out a claim of false light, does the statement involved have to be defamatory?
NO.
What kind of damages can a P recover in a claim for false light violation?
EMOTIONAL damages.
Is false light an intentional tort?
NO.

Inadvertence, good faith, etc will NOT get D off the hook!
What are the defenses to the privacy tort?
1. Consent

2. Absolute/qualified privileges

3. other defamation defenses
What are the 4 core elements of any negligence claim?
Duty

Breach

Causation

Damages
To whom is a duty owed for purposes of negligence claims?
To FORESEEABLE VICTIMS
Who is a "foreseeable victim" for negligence purposes?
people who are in the zone of danger

How big or small that area is depends on the activity involved
Can rescuers recover on a claim of negligence, if they were far away from the incident that caused harm?
Yes- rescuers are an exception to the zone of danger rule.
How much CARE are you supposed to give, under the duty of care for negligence purposes?
RULE: give the amount of care that would be given by a hypothetical reasonably prudent person acting under similar circumstances
Is the duty of care standard for negligence an objective or subjective standard?
Objective.

It’s the same for everyone – it doesn’t change from person to person.

That means it’s inflexible – it does not take into account individual attributes of D. Consequence: it can be harsh.

eg, a low IQ doesn’t matter. Mental retardation doesn’t matter. Even if it’s an unattainable standard for the D in question, the standard does not shift.
Is the duty of care that a person owed affected by their intelligence level? Explain.
NO - objective standard.
Is the duty of care that a person owed affected by their special knowledge? Explain.
YES - an exception to the objective standard rule.

If a D has superior knowledge, that knowledge WILL be imported into the standard

2 kinds of superior knowledge:

1. A body of information (eg, a professional race car driver.) A NASCAR driver will be held to the standard of a reasonably prudent NASCAR driver.

2.physical characteristics of the D, if they are relevant. (Eg, reasonably prudent blind person; reasonably prudent person in a wheelchair. (assuming those characteristics are relevant to the tort at issue))
Can the physical characteristics of a defendant ever be taken into account when determining negligence? Explain.
YES. The physical characteristics of the D, if they are relevant, can be taken into account.

Eg, the standard of a reasonaly prudent blind person (assuming blindness is a characteristic relevant to the tort at issue)
What are the 6 primary exceptions to the standard duty of care rule for negligence? (Eg, when is the standard different from objective reasonably prudent person standard?)
1. Superior knowledge (body of info or physical characteristic)

2. Children

3. Entrant on land sues owner of land

4. Professionals

5. Statutory standards for duty of care

6. Duty to act affirmatively
What duty of care does a child under the age of four have?
NONE. We assume they are incapable of negligence.
What duty of care does a child over age four have? (Exceptions?)
If child is 4 or older, they owe the care of a hypothetical child of similar age, experience, & intelligence acting under similar circumstances.

This standard varies from one child to next – it’s subjective. And thus pro-defendant.

EXCEPTION: A child engaged in an ADULT ACTIVITY (eg, driving a car) is held to reasonably prudent person standard
What is the standard of care for Professionals? What exactly sets the standard of care for a given professional?
They must provide the care of the average member of their profession practicing in a similar community.

Not comparing to a hypothetical standard - instead, comparing them to actual colleagues.

They must do same things other practicing professionals do.

E.g., the CUSTOM of the profession in their community sets the standard of care!
If a question involves an entrant on land suing a landowner for negligence, what are the two broad questions to ask and answer when responding to the question?
1. How did the entrant get hurt? (Eg, what was the cause of the accident. Specifically: was it an ACTIVITY, or a HAZARDOUS CONDITION that caused it?

2. What KIND of entrant is involved? (4 options - undiscovered trespasser, discovered trespasser, licensee, and invitee)
What is the duty of care owed by a landowner to undiscovered trespassers for harm caused by activities?
NONE.
What is the duty of care owed by landowner to undiscovered trespassers for harm caused by dangerous conditions?
NONE
What is the duty of care owed by landowner to discovered trespassers for harm caused by activities?
The care of a reasonably prudent person acting under similar circumstances (ordinary, garden variety negligence case)
What is the duty of care owed by land occupier to discovered trespassers for harm caused by dangerous conditions?
Occupier must protect the discovered trespasser ONLY from conditions that meet a 4 part test:

1. Condition must be ARTIFICIAL (no obligation to protect from naturally occurring conditions on land)

2. Condition must be HIGHLY DANGEROUS - capable of creating severe injury or death

3. Condition must be CONCEALED from the trespasser. No duty to protect trespassers from open and obvious hazards that are easily avoidable

4. Hazardous condition must be one the occupant knows about IN ADVANCE. No duty to discover dangers on land to protect hypothetical trespassers.

(Exam memory tip: Occupier only owes a duty to protect against known, man-made death traps on the land)
What is the duty of care owed by landowner to anticipated trespassers for harm caused by activities?
The care of a reasonably prudent person acting under similar circumstances (ordinary, garden variety negligence case)
What is the duty of care owed by occupier to anticipated trespassers for harm caused by dangerous conditions?
Occupier must protect the anticipated trespasser ONLY from conditions that meet a 4 part test:

1. Condition must be ARTIFICIAL (no obligation to protect from naturally occurring conditions on land)

2. Condition must be HIGHLY DANGEROUS - capable of creating severe injury or death

3. Condition must be CONCEALED from the trespasser. No duty to protect trespassers from open and obvious hazards that are easily avoidable

4. Hazardous condition must be one the occupant knows about IN ADVANCE. No duty to discover dangers on land to protect hypothetical trespassers.

(Exam memory tip: Occupier only owes a duty to protect against known, man-made death traps on the land)
If there is a discovered or anticipated trespasser on land who is injured and claims negligence on the part of the land occupier, when is the standard of care JUDGED? (Timing)
As of the time of the accident.
What is a licensee for purposes of negligence law?
person who comes on land for her own purposes. Eg, people who enter w/ permission onto land not generally open to everyone. (Normally they are social guests.)
What is an invitee for purposes of negligence law?
people who enter land that is open to the public as a whole (or a large subset of the public) (this includes if you have to pay to go in)
What is the duty of care owed by occupier to licensees for harm caused by hazardous conditions?
Occupier must protect the licensee from any condition that meets a 2 part test:

1. The condition is HIDDEN from the licensee

2. The condition was KNOWN in advance by the land occupier

(Exam memory tip: Occupiers must protect licenses from all known traps on the land)
What is the duty of care owed by occupier to licensees for harm caused by activities?
Occupier owes duty of reasonably prudent person in similar circumstances.
What is the duty of care owed by occupier to invitees for harm caused by dangerous conditions?
1. Condition was CONCEALED from the invitee AND

2. The occupier either knows of the hazard in advance OR could have discovered it through a reasonable inspection. (Imposes a duty to inspect)

(Exam memory tip: Occupier must protect invitees from “all reasonably knowable traps on the land”)
What is the duty of care owed by occupier to invitees for harm caused by activities?
Reasonably prudent person standard (plain vanilla negligence standard)
What kind of entrant on land are firefighters and police officers? (Eg - discovered/undiscovered trespassers, invitees, or liscensees?)
Licensees.
Can a firefighter recover for smoke inhalation injuries if the fire was caused negligently by a homeowner? Explain.
NO. Firefighters and police officers NEVER recover for injuries that are an inherent risk of their job (burns, smoke inhalation, etc)
What duty of care do land occupiers owe to child trespassers?
Child trespassers are treated more generously than other trespassers. They are entitled to the care of a reasonably prudent person, regardless of what the facts might be.

Ask if D was reasonably prudent w/ regard to protecting prospective child trespassers from this injury.

Determine whether occupier should have expected children to trespass. The more likely it is, the more caution needs to be used.
If there’s something on the land that’s tempting to children, it’s likely that you will have kids trespass.
If an occupier of land owes a duty to protect from a dangerous condition, the occupier can satisfy the duty in what 2 ways?
1. fix the condition (eliminate the hazard)

2. provide a warning.
When can a statutory duty of care replace the general common law duty of care?
4 part test (key is last 2 parts):

i. The statute provides for a criminal penalty,

ii. The statute clearly defines the standard of conduct,

iii. The P is within the protected class, AND

iv. The statute was designed to prevent the type of harm suffered by the plaintiff.
When can a statutory duty of care NEVER replace the general common law duty of care, even if the 4-part test is met?
i. if compliance w/ a statute would be MORE DANGEROUS than violation, then we don’t use the statute as the standard of care, EVEN IF class of person class of risk test is satisfied

ii. if compliance w/ the statute was IMPOSSIBLE under the circumstances
Is there a duty to act affirmatively?
NO -- there is never a duty to act affirmatively.

RULE: there is no duty to rescue a stranger in peril.

Strict rule, unless one of the 2 exceptions apply:
1. pre-existing relationship (family; common carriers and inneepers to patrons)

2. D caused the peril to begin w/
If someone with no duty to rescue does try to rescue, what standard of care are they held to?
Reasonably prudent person attempting a rescue under the circumstance. (Unless there's a good samaritan law.)
What is the general duty regarding negligent inflictio nof empotional distress?
Duty to avoid causing carelessly upsetting other people. It's breached when the D creates a foreseeable risk of physical injury to a P, either by:
1. causing a threat of physical impact that leads to emotional distress OR
2. directly causing severe emotional distress that itself is likely to result in physical symptoms.
What does a P have to show to prove negligent infliction of emotional distress?
1. That she was in a ZONE of PHYSICAL DANGER. (must be a close call or near miss)

AND

2. subsequent physical manifestations of the distress. (Symptoms of the distress that are visually observable. Eg: heart attack, miscarriage, rash)
Can a P recover for negligent infliction of emptional distress if they witnesses a negligent injury to a close family member?
YES, depending on the state. More than half of states allow it. Specific rules vary

“ringside seat” to seeing a loved one be hurt by a negligent party
Define res ipsa loquitur
= the very occurrence of an event tends to establish breach
When/why is res ipsa loquitur used?
Some Ps can’t ID a breach (wrongful conduct) b/c they don’t have the info -- the defendant has all the relevant info - or even the D may not have it.

Under this doctrine, P can get to jury w/o direct evidence of breach.
What must the P show if they want to invoke res ipsa loquitur?
i. The accident that occurred is one that would not normally occur in the absence of negligence

AND

ii. P must demonstrate that this kind of accident normally occurs b/c of the negligence of s/o in the D’s position.
What are the 2 general kinds of causation in negligence law?
Factual causation

Legal causation (proximate cause)
What is the standard test for factual causation?
BUT FOR

(BUT FOR the D's actions, P would not have been injured)
Define causation -
P’s obligation to establish a connection (a cause-and-effect linkage) btw the specific breach (conduct) and the ultimate injury suffered.
What phrase will a D use to try to negate a But For claim of negligence?
an EVEN IF argument. “Even if I had been prudent, you still would have been hurt”
If there are multiple defendants with mingled causation, how do you determine liability among them?
To decide who is liable, use SUBSTANTIAL FACTOR TEST

Instead of "but for," ask if each D contributed to the injury in a significant or substantial way.

If yes, they are jointly liable.

If only one D was a substantial factor, that D is liable and the other is not.
If there are multiple defendants and an unascertainable cause, how do you determine liability among them?
P has burden of proof on each element of the case, so has to show it’s more probable than not that one D is more tan 50% responsible for the incident to find them liable. If there's 2 Ds and an unascertainable cause, then there's a 50/50 chance that either D did it, so P cannot prove either did it! Solution: shift the burden of proof. Then it’s up to each D to prove that they were NOT the cause. If they can, they win. If they can’t they are liable.
What is proximate cause?
Whether D is the legal cause of P's harm. Ultimatley, it's a fairness question, particularly for indirect harm.
D breaches duty, but causes no immediate injury to P. Then one or more additional events take place, after which P suffers full extent of the harm. What are those additional events called?
INTERVENING CAUSES.
What are the 4 INDIRECT proximate cause fact patterns that have settled liability rules such that D should be held responsible, and P gets compensation?
1. Cases involving intervening medical negligence

2. Cases involving intervening negligent rescue

3. Cases involving intervening protection or reaction forces

4. Cases involving a subsequent disease or accident
What is the eggshell skull principal?
If a D has committed all the other elements of a tort, D must pay for all damage suffered by a P, even if the damages are surprisingly and unpredictably great in scope.

NB: this doctrine is not limited to the law of negligence. Applies to EVERY single tort.
What is comparative fault?
It's the modern version of P's contribution to the injury suffered. (Eg, the replacement for contributory negligence and assumption of the risk)
If a D wants to raise a comparative fault defense, what do they have to show? What is the effect of sucessfluly raising the defense?
if a D wants to raise a comparative fault argument, D has to first show the P is guilty of fault. (Eg, show P failed to use relevant degree of care for her own safety; reasonably prudent person level of care. Also could be a statute – eg, jaywalking)

If D shows this, it’s a showing of P fault. Jury will be instructed to weigh & compare P’s fault and D’s fault, and assign each litigant a % number. P’s recovery will be reduced based on that number.
What are the 2 forms of comparative fault used in difference jurisdictions?
1. Default rule for exam = pure comparative fault. Go strictly by jury #s, and P always recovers something.

2. Partial/modified comparative fault. If it’s tested, they’ll call it by name. A P fault of less than 50% results in a reduction in recovery. BUT - P fault of more than 50% results in an absolute bar to recovery –zero recovery.
What is strict liability?
safety precautions taken by D are irrelevant. Doesn’t matter how careful D was. Ordinary or even extraordinary care doesn’t matter. D is still liable.
What are the FOUR primary causes of action in which strict liability may apply?
1. injuries caused by animals
2. product liability
3. untra-hazardous activities
4. Nuisance
What kind of liability is applied to injuries cause by domesticated animals?
Rule: D is NOT strictly liable for injuries caused by a dog (or other domesticated animal).

Exception: D will be strictly liable if D has knowledge that their dog has vicious propensities (eg, the dog has previously bitten someone).

(Owner will be liable if D can show negligence if it's a first bite. But no SL for first bite.)
What kind of liability is applied to injuries caused by wild?
Strict liability
What kind of liability is applied to injuries caused by trespassing cattle?
Strict liability
What are the elements required for a given activity to be considered ultra-hazardous?
1. the activity cannot be made safe, even if conducted as best as possible,

2. the activity poses a risk of severe harm, AND

3. the activity is uncommon in the are where it is being conducted
What kind of liability is there for ultra-hazardous activities?
Strict Liability.
What are the 3 primary ultra-hazardous activities tested on the MBE?
a. Blasting or explosives (dynamite, TNTs, etc)
b. Very dangerous chemical or biological agents (Transporting chlorine gas in a tanker; researching anthrax with live cultures)
c. Anything involving nuclear energy or radioactive materials.
What are the (FOUR) elements required in order for a P to establish strict liability for an injury caused by a product? (product liability)
1. D was a merchant (a merchant who ordinarily deals in goods of this type)

2. Must show the product was defective (manufacturing defect or design defect)

3. The defect existed when the product left the D’s hands
AND

4. P must be a foreseeable user of the user of the product, making a foreseeable use
Which of the following are "merchants" for purposes of strict liability in a products liability action:

- Casual sellers
- Service providers
- Commercial lessors
Casual sellers are NOT MERCHANTS

Service provider are
NOT merchants of goods that are incidental to the services provided

Commercial lessors ARE MERCHANTS, and ARE subject to SL
In a products liability action, does the named D have to be the merchant tha the P dealt with directly?
NO. Every merchant in the chain of distribution is subject to SL.
Define "manufacturing defect"
the product came off the manufacturing line differently from all the other products that came off the line, making it more dangerous than the consumer would expect. (The anomaly off the manufacturing line)

Focus is on the product, not the producer
Define "design defect"
there is a design defect in a product IF a hypothetical alternative design exists that meets all 3 of the following tests:

1. the alternative design is SAFER than the version actually marketed
2. the alternative design is ECONOMICAL (it costs, at most, a little more than the one on the market)
3. the alternative design is PRACTICAL (it doesn’t make the product hard to use or undermine its principal purpose)
Are product labelling & warnings considered an element of either manufacture or design?
Design
What is the rule for a defenct needing to exist when it left the D's hand? How do we know it was defective at that point?
RULE: If the product has traveled in ordinary channels of transportation, then it’s presumed that the defect existed when it left the D’s hands, and it’s up to the D to prove the contrary.
Is a manufacturer's liability for product defects limited to a intended uses of the product by a consumer?
NO!! Misuse is not the legal test – the TEST is FORESEEABLILITY. If it was FORESEEABLR that a consumer would use a product in a certain way, then SL can be applied.
Define nuisance
an interference with P’s ability to use and enjoy her land to an unreasonable degree
What are the 2 most commonly tested nuisances?
- incompatible land use
- spiteful neighbors
What is the general rule for when a D is liable for nuisance?
D is liable if its activities interfere w/ P’s ability to use the land to an unreasonable degree

Unreasonableness = balancing test - balance D’s right to use land as he sees fit against P’s right to be free of annoyance.
What are the defenses to animal claims, consumer product claims, and ultra-hazardous activity SL claims?
Comparative fault
List the 4 primary situations in which vicarious liabilty is usually at issue on the MBE. (The 4 relatinships that may give rise to claims of vicarious liability)
1. Employee-employer

2. Parent-child

3. independent contractor and the party that hired her

4. automobile owner and automobile driver
Define vicarious liability:
liability that is derivatively imposed. One person commits a tortious act against a 3rd party, and another person will be liable for this act.
Is an employer vicariously liable for an employees torts?
employer is liable as long as the employee was acting within the scope of employment
Is an employer vicariously liable for an employees intentional torts?
usually not, b/c intentional torts tend to be outside the scope of employment.

BUT – if job description involves the use of force (bouncer; security guard), then an intentional tort may be w/in the scope of employment.

Also, if you have a job that generates friction (eg, debt collector), an employer may be liable for an employee’s intentional tort

Any zealous activity on the part of the employee that is designed to serve the employer’s purposes then it’s w/in the scope of employment
Is the person who hires an independent contractor vicariously liable for that contractor's torts?
NO vicarious liability

EXCEPTION: a land occupier is vicariously liable if an independent contractor hurts an invitee.

Eg: owner of store hires painters. Customer comes in, paint knocked off ladder, hits customer – store owner is liable.
Is a car's owner vicariously liable for the torts of another person who is driving their car?
generally NO vicarious liability

EXCEPTION: if s/o is running an errand for the owner, the driver becomes the owner’s agent, and the owner is vicariously liable.
Is a parent vicariously liable for a child's torts?
NO vicarious liability - no exceptions.

BUT: watch for a parent’s negligent failure to supervise a child, or parent’s negligence in allowing child to access a dangerous item (eg, a gun).

This is direct negligence of parent, not vicarious liability.

Lesson: Vicarious liability is always a second-choice theory!
If there are multiple defendants in a case, what compensation can the out-of-pocket defendant get from other Ds in the case?
Contribution

Indemnity
What is contribution, for purposes of cases with multiple defendants?
Allows a D who pays more than their share of damages to have a claim against other jointly liable parties for the excess (eg, it apportions responsibility among those at fault)
What kind of contribution is the majority rule in multiple-defendant cases?
Comparative contribution. = contribution is imposed in proportion to the relative fault of the various defendants
What is indemnification, for purposes of cases with multiple defendants?
Involves shifting the entire loss between or among tortfeasors
What is the most common MBE situation in which indemnification in cases with multiple defendants is allowed?
non-manufacturer (eg retailer) held strictly liable for a product can get all its $ back from manufacturer (retailer gets indemnification from the retailer)
What type of damages claims for recovery are allowed in a claim for loss of consortium?
Loss of services

Loss of society (companionship; interaction)

Loss of sex