Torts Mbe

Front 1

What theory of liability would be appropriate vs. a manufacturer if a retailer modifies an otherwise safe product, making it dangerous, after the product is distributed to the retailer?

Back 1

Negligence may apply if the manufacturer knew or could foresee the modification and reasonable steps could be made to prevent the retailer from making the modification. Strict liability only applies if the product was defective at the time it left the manufacturer's control.

Front 2

How does traditional contributory negligence effect recovery in a negligence claim? A manufacturer's defect strict liability claim?

Back 2

Plaintiff negligence of any degree is a complete bar to recovery against a negligence claim. However it does not prevent recovery against a manufacturer in a strict liability claim.

Front 3

Would an unintentional entry of another's land caused by the defendant's reckless behavior (e.g. drunk driving) satisfy the intent element of trespass to land?

Back 3

No. The entry itself must be intentional. Entry by virtue of volitional recklessness will not satisfy intent.

Front 4

Does implied assumption of risk apply to products liability?

Back 4

Yes, assuming the state uses traditional AOR. Eg. knowingly driving with defective brakes would serve as a bar against a strict liability claim for manufacturing defect. However, most states handle implied AOR as a simply a comparative negligence analysis.

Front 5

If a group of people beat up a person, how are the damages for the injuries settled as between defendants who cause varying injury?

Back 5

The defendant's would be viewed as acting in concerted effort and each would be liable for all of the defendants injuries, even if they were not directly the cause of some of the injuries.

Front 6

How does a modified comparative fault convention work?

Back 6

At some threshold, often above 50% a plaintiffs negligence acts as a complete bar to recovery. Below that the plaintiff's negligent conduct reduces liability proportionate to allotted fault.

Front 7

What is the collateral source rule?

Back 7

A plaintiffs recovery is not reduced by the amount a plaintiff receives from plaintiff's insurance or other sources (charity etc.)

Front 8

When is an IIED recovery available to a third party?

Back 8

Two cases

1. [a] plaintiff is present [b] def. knows plaintiff is present and [c] plaintiff is close family relative of the person who is the object of the outrageous act

2. [a] and [b] above and [c] plaintiff suffers from some physical issue related to the emotional distress.

Front 9

What are the major categories of intentional torts?

Back 9

Torts against the person, torts against property,

business torts, privacy torts, torts relating to litigation and torts relating to death

Front 10

What are the torts against the person?

Back 10

[1] assault

[2] battery

[3] false imprisonment

[4] intentional infliction of emotional distress

Front 11

What are the elements of common law battery?

Back 11

Act: a harmful or offensive touching

Intent:

[1] to cause the touching

[2] to do an act substantially certain to cause the touching

[3] to cause apprehension of an offensive or harmful touching (intent to assault)

Front 12

What is the concept of transferred intent in the context of intentional torts?

Back 12

The intent to satisfy one intentional tort satisfies the intent requirement for:

[1] the same tort against another person

[2] a different tort (subject to categories) against the same victim

[3] a different tort against a different person

Front 13

Which intentional torts does the transferred intent concept apply to?

Back 13

"Fab Trespass"

False Imprisonment

Assault

Battery

Trespass to Land

Trespass to Chattels

Front 14

Can you be liable for a battery if you only intend to touch or assault in a joking manner?

Back 14

Yes. Intent to harm is not required.

Front 15

How is the harmful or offensive elements of battery analyzed?

Back 15

Harmful: causes pain or injury

Offensive: offensive by the ordinary person standard.

Front 16

Does the eggshell plaintiff doctrine apply to intentional torts?

Back 16

Yes, but the defendant must be aware of the sensibilities, otherwise ordinary person standard controls.

Front 17

What types of contact satisfy battery?

Back 17

Direct and indirect (where you hit something in contact with the plaintiff)

Front 18

What are the defenses to battery?

Back 18

Self Defense, defense of another, consent, necessity

Front 19

Under what context does the consent defense arise with battery?

Back 19

Contact sports and fights. Consent is interpreted narrowly, and the degree of contact consented to cannot be exceeded for the defense to work.

Front 20

What are the elements of a common law assault?

Back 20

Act: which causes fear or apprehension of a battery.

Intent: to cause fear or apprehension of imminent harmful or offensive touching.

Front 21

What if the plaintiff is never afraid during an assault attempt?

Back 21

No liability: if the plaintiff is unaware of the threat or is unafraid due to mistake or is simply not scared, there is no assault.

Front 22

Can one be alarmed for the safety of another in assault?

Back 22

No. Different than IIED and NEID.

Front 23

Can words alone satisfy the assault act requirement?

Back 23

Not normally on the MBE.

Front 24

Can a conditional threat (i.e. I will hit you with this club if you do not leave) result in an assault?

Back 24

It depends if the condition triggering the contact is a rightful act (defense, etc.) If so, no assault.

Front 25

What are the elements of false imprisonment?

Back 25

Act: which causes the plaintiff to be confined to an area with no reasonable means to exit/escape.

Intent: to confine the plaintiff

Front 26

What if the plaintiff is unaware of the confinement?

Back 26

There is no liability for false imprisonment.

Front 27

How much time much pass for a false imprisonment liability to trigger?

Back 27

Mere seconds. Time of containment is not relevant.

Front 28

How is the ability to reasonably escape considered in false imprisonment?

Back 28

Any escape that would force the plaintiff to leave property behind, or would embarrass the plaintiff or is dangerous does not constitute an avenue of escape.

Front 29

What is the shopkeeper's privilege?

Back 29

A store owner may imprison a suspected thief without liability for a reasonable amount of time if there is probable cause that the person stole something. The shopkeeper is still liable for actual injuries, and may not use excessive force.