MBE Mini Review Major Points

Question 1

intentional torts intent req

Answer 1

purpose or substantial certainty generally (IIED exception - recklessness)

Question 2

intentional torts that require proof of damages

Answer 2

IIED (severe emotional distress)
Trespass to chattel (to chattel or from non-use)
Conversion (substantial damage)

Don’t need for anything else

Question 3

false imprisonment reqs

Answer 3

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)

Question 4

IIED & transferred intent

Answer 4

TRANSFERRED INTENT DOES NOT APPLY

Question 5

trespass to land

Answer 5

-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

Question 6

assault

Answer 6

must be immediate!! apprehension

Question 7

trespass to chattel & mistake

Answer 7

can think it’s ur prop. just need intent to have contact w the prop.

Question 8

remedy for conversion

Answer 8

FORCED SALE OF PROP. D must pay fair market value of prop at time of conversion and D keeps prop.

Question 9

what claims can you bring if substantial damage to chattel

Answer 9

Trespass or conversion. W trespass, keep chattel and get damages. W conversion, D keep chattel and u get full amount.

Question 10

defenses to intentional torts

Answer 10

-consent
-self-defense
-defense of prop
-necessity
-DIDNT MEET ALL NECESSARY ELEMENTS [this will always be the BEST answer]

Question 11

consent defense

Answer 11

-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-cannot exceed scope of consent or after withdrawn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.

Question 12

self-defense

Answer 12

-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]

Question 13

defense of prop

Answer 13

-can use reasonable non deadly force to defend land or personal property
-never deadly force for property alone (except if in home)

Question 14

shoplifter defense

Answer 14

-reasonable belief P is shoplifter
-hold for reasonable time
-hold in reasonable manner

Question 15

necessity

Answer 15

-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

Question 16

duty

Answer 16

-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.

Question 17

special duties of care

Answer 17

-persons w major physical disability
-children
-professionals
-owners and occupiers of land
-neg per se

Question 18

children duty of care

Answer 18

-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

Question 19

professionals duty of care

Answer 19

-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

Question 20

owners and occupiers of land

Answer 20

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

Question 21

is evidence of industry practice or custom admissible

Answer 21

always but not conclusive

Question 22

res ipsa loquitor

Answer 22

-helps P avoid directed verdict
-any answer that says P wins lawsuit or D loses will always be wrong

Question 23

eggshell plaintiff rule

Answer 23

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”

Question 24

contributory negligence

Answer 24

-backup application
-any negligence on the part of P that contributed to the harm is a complete defense

Question 25

comparative negligence (kinds)

Answer 25

-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]

Question 26

Strict liability for sale of defective product

Answer 26

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

Question 27

defenses for strict liability products liability

Answer 27

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

Question 28

non defenses

Answer 28

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)

Question 29

Vicarious L for employee torts

Answer 29

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