MBE Mini Review Major Points Flashcards
intentional torts intent req
purpose or substantial certainty generally (IIED exception - recklessness)
intentional torts that require proof of damages
IIED (severe emotional distress)
Trespass to chattel (to chattel or from non-use)
Conversion (substantial damage)
Don’t need for anything else
false imprisonment reqs
bounded area on all sides (no reasonable means of escape)
doesn’t matter how long
MUT BE AWARE OF CONFINEMENT TO SUFFER INJURY AND WIN MONEY (EXCEPTION: PHYSICALLY INJURED)
IIED & transferred intent
TRANSFERRED INTENT DOES NOT APPLY
trespass to land
-act done w intent to enter or invade land resulting in physical invasion of another
-don’t need intent to enter ANOTHER’s land - just to enter the land
-includes surface, below, and air
assault
must be immediate!! apprehension
trespass to chattel & mistake
can think it’s ur prop. just need intent to have contact w the prop.
remedy for conversion
FORCED SALE OF PROP. D must pay fair market value of prop at time of conversion and D keeps prop.
what claims can you bring if substantial damage to chattel
Trespass or conversion. W trespass, keep chattel and get damages. W conversion, D keep chattel and u get full amount.
defenses to intentional torts
-consent
-self-defense
-defense of prop
-necessity
-DIDNT MEET ALL NECESSARY ELEMENTS [this will always be the BEST answer]
consent defense
-complete defense
-P must have capacity to consent
-implied - when a reasonable person would infer from Ps conduct that ok for D to act
-cannot exceed scope of consent or after withdrawn
-Capacity is invalid if: 1. P lacks capacity due to age or mental illness; 2. Obtained through fraud; 3. Obtained thru duress or coercion.
self-defense
-only if have reasonable belief of unlawful attack and use reasonable amount of force to defend [may include deadly force]
-retreat jdx - person must retreat, if can safely do so, before using deadly force [but not if in own home]
defense of prop
-can use reasonable non deadly force to defend land or personal property
-never deadly force for property alone (except if in home)
shoplifter defense
-reasonable belief P is shoplifter
-hold for reasonable time
-hold in reasonable manner
necessity
-defense to trespass to chattel, trespass to land, and conversion
-NEVER A DEFENSE TO PERSON TORT
Public: total defense
Private: held L for prop damage
duty
-court determines whether and what duty owed
-owed to all foreseeable plaintiffs
-general standard = reasonable person
-even if circumstances are extraordinary, standard is reasonable person. not more than that.
special duties of care
-persons w major physical disability
-children
-professionals
-owners and occupiers of land
-neg per se
children duty of care
-must exercise care that is reasonable for child of like age, edu, intelligence, and experience
-exception: child is engaged in adult activity such as driving a car or operating heavy machinery
professionals duty of care
-must exercise knowledge and skill of an ordinary member of that profession in good standing
-doctor: ALSO duty to warn patient of serious risks in any med procedure
owners and occupiers of land
UNKNOWN TRESPASSER
-no duty
KNOWN TRESPASSER
-must warn of conditions that are: 1) artificial; 2) highly dangerous; 3) concealed; 4) known
CHILD TRESPASSER
-must warn if… 1) knew or should have known child would trespass; 2) dangerous condition knew or should’ve been aware of; 3) likely to cause injury; 4) expense of remedying the situation is less than the risk
LICENSEE (social guest/solicitor)
-warn of KNOWN concealed, dangerous conditions
-no duty to repair
INVITEE
-warn of concealed, dangerous conditions that are KNOWN or SHOULD HAVE KNOWN of
-must make REASONABLE INSPECTIONS
is evidence of industry practice or custom admissible
always but not conclusive
res ipsa loquitor
-helps P avoid directed verdict
-any answer that says P wins lawsuit or D loses will always be wrong
eggshell plaintiff rule
if D is L for some injury to P, D is liable for ALL of the plaintiff’s injury damages
exam answer: “the extent of the plaintiff’s harm need not be foreseeable”
contributory negligence
-backup application
-any negligence on the part of P that contributed to the harm is a complete defense
comparative negligence (kinds)
-modified comparative negligence [P cannot recover if over 50% at fault]
-pure comp negligence [DEFAULT APPLICATION] [P can recover damages reduced by her fault regardless of how negligent she was]
Strict liability for sale of defective product
o D was commercial supplier
Commercial supplier = seller or someone who leases product
Includes manufacturer, wholesaler, retailer
A one-time seller of a product can only be sued in negligence
o Product was in a defective unreasonably dangerous condition at the time defendant sold it or placed it in the stream of commerce
Defective condition = defect in design or assembly of product or defect due to inadequate warnings about potential dangers
o Defective product caused P’s injury
Negligence of another supplier in stream of commerce does not cut off D’s liability
defenses for strict liability products liability
o Elements have not been established
o Assumption of risk where P knew of risk and voluntarily encountered it
o Misuse of the product if misuse was not reasonably foreseeable
non defenses
o P’s ordinary contributory negligence (unless the jdx applies its comparative negligence rules)
o Exercise of reasonable care or extraordinarily reasonable care by D
o Plaintiff’s foreseeable misuse of product
o P did not purchase product from D (lack of privity)
Vicarious L for employee torts
o General rule: employer generally not L for employee’s intentional torts – BUT exceptions commonly tested:
Employee acting to help employer’s business (like forcibly removing rowdy customers)
o Principal generally not L for torts of independent contractors, but exceptions commonly tested:
Principal’s duty is nondelegable as a matter of public policy
