Emmanuel Stratagies and Tactics

Question 1

What is the negligence standard on the MBE?

Answer 1

A D must
1. fail to exercise such care as a reasonable person in his position would have exercised;
2. his conduct must be a breach of the duty to prevent the foreseeable risk or harm to anyone in the P’s position;
AND
3. this breach must cause the P’s damages.

Question 2

What is the only situation where a P must prove special damages as part of a defamation claim?

Answer 2

Only when his claim is based on slander and is for a slanderous statement not falling within the 4 slander per se categories:
1. accusing someone of a crime
2. alleging a foul or loathsome disease
3. reflecting poorly on person’s fitness to conduct his or her business or trade,
AND
4. imputing serious sexual misconduct to someone (almost always women) (ie rape).

If not in one of these four categories P must prove special damages or his claim will fail.

Question 3

Is defamation ever a strict liability offense?

Answer 3

No. Have to prove at the very least, negligence with respect to the statements truth.

Question 4

What is the difference between defamation and invasion of privacy ?

Answer 4

Truth is not a defense to invasion of privacy, but it’s a complete defense to defamation.

Question 5

Only three ways a D can be strictly liable ? (with out regard for fault or intent)

Answer 5

1. by keeping a wild animal
2. by conducting an abnormally dangerous activity, OR
3. by selling a defective product (through strict products liability).

Don’t forget proximate cause.

Question 6

Negligence shortcut?

Answer 6

Look at the D’s conduct and see if it was reasonable. If it was, D cannot be negligent, because negligence requires unreasonable behavior.