MBE - No NC Distinctions

Question 1

Intentional Torts: Prima Facie Case

Answer 1

1. Act by D - requires some volitional movement
2. Intent - specific or general
   
   • Specific - intent to bring about a specific harm
   • General - substantial certainty that tortious conduct will result from D’s act
3. Causation - substantial factor
   
   • D’s conduct must be a substantial factor in bringing about the resulting harm

Transferred intent doctrine - arises when D acts with the intent to commit a given tort but:

1. Commits it against a different person than intended,
2. Commits a different tort than intended, or
3. Both 1 and 2

• D’s original intent transfers to the tort actually committed and/or person actually harmed, resulting in D’s liability
• Applies only to:
  
  1. Assault
  2. Battery
  3. False imprisonment
  4. Trespass to land or chattel

Question 2

Assault

Answer 2

An intentional act by D creating P’s reasonable apprehension of immediate harmful or offensive contact to P’s person

• Also considered an attempted battery

Elements:

1. Act by D that creates a reasonable apprehension in P
   
   • “Reasonable apprehension” = P has knowledge of D’s act and an expectation that it will result in immediate harmful or offensive contact to P’s person
     
     • Apprehansion must be reasonable
   • Note - beware of fact patterns where D appears incapable of accomplishing the threatened harm
     
     • Apparent ability is sufficient, as long as it could reasonably create P’s apprehension
2. Of immediate harmful or offensive contact to P’s person
   
   • P must apprehend an immediate or imminent battery
     
     • Words or threats of future battery are usually insufficient, unless coupled with some overt act (e.g., picking up a weapon, clenching fists, etc.)
3. Intent
4. Causation

Question 3

Battery

Answer 3

An intentional harmful or offensive contact to P’s person by D

Elements:

1. Harmful or offensive contact by D
   
   • Reasonable person standard - would a reasonable person think the contact is harmful or offensive
2. To P’s person
   
   • Includes anything connected to P’s person (e.g., P’s hat)
3. Intent
4. Causation
   
   • Indirect contact is sufficient - e.g., causing the force that gives rise to harmful or offensive contact
     
     • E.g., greasing a floor so that P will slip and fall

Question 4

False Imprisonment

Answer 4

An act or failure to act by D resulting in P’s restraint or confinement to a bounded area

Elements:

1. Act (or omission) resulting in P’s restraint or confinement
   
   • Restraint or confinement does not have to be physical
     
     • E.g., threats of force, invalid use of legal authority
   • Duration is not important; brief confinement will suffice
2. P is confined to a bounded area
   
   • P must be aware of or harmed by the confinement
   • P’s freedom of movement must be limited
   • P must not be aware of any reasonable means of escape
     
     • If a reasonable person could get out (e.g., by opening an unlocked door), no false imprisonment
3. Intent
4. Causation

Shopkeeper’s privilege - a store may detain a suspected thief if:

1. Store has reasonable cause to believe a theft occurred;
2. Store detains suspect for only a reasonable period and for purposes of investigation; and
3. Detention is reasonable; only non-deadly force allowed

• Shopkeeper may be held liable for any harm cuased by the acts exceeding that privilege

Question 5

Intentional Infliction of Emotional Distress

Answer 5

Extreme and outrageous conduct by D causing P’s severe emotional distress

Elements:

1. Extreme and outrageous conduct by D
   
   • Conduct that exceeds the bounds of decency in society
     
     • Mere insults alone are insufficient
   • Non-outrageous conduct may be actionable if:
     
     1. D targets P’s known sensitivity or weakness,
     2. D’s conduct is continuous or repetitive,
     3. D targets a P who is a member of a “fragile class” (e.g., elderly, children, pregnant women), or
     4. D is a common carrier or innkeeper
2. Severe emotional distress in P
   
   • P must suffer severe emotional distress from D’s conduct
     
     • Physical symptoms are not necessary
     • Note - watch for facts indicating extreme, outrageous conduct but P is unbothered - this is not IIED
3. Intent or recklessness
   
   • Recklessness = D disregards the likely consequences of hist acts
4. Causation

Question 6

IIED: Bystander Claims for Emotional Distress

Answer 6

A bystander closely related to a person physically injured or killed by D’s conduct may recover for emotional distress

Elements:

1. D’s conduct seriously injured or killed a third person
   
   • D’s conduct must be intentional or reckless
   • Bystander recovery is not available for medical malpractice
2. P is closely related to the injured person
   
   • Note - this element not required if P shows that D had a design or purpose to cause P severe distress
3. P was present when the injury occurred
   
   • P must clearly witness the injury-causing event
4. D knew elements 2 and 3
5. P suffers severe emotional distress
   
   • Physical manifestation is not required
   • Note - compare to the related tort of negligent infliction of emotional distress

Question 7

Trespass to Land

Answer 7

A physical invasion of P’s real property by D

Elements:

1. Physical invasion of P’s real property by D
   
   • D enters P’s property or propels an object onto it
     
     • E.g., D walks on P’s property, throws a ball onto P’s property, chases someone onto P’s property
   • P must only have actual or constructive possession
     
     • Ownership not required
   • Must be a physical invasion
     
     • Invasions by light, sound, smell are not trespass (but may give rise to nuisance)
   • P’s real property includes surface space, airspace, and subterranean space to a reasonable distance
2. Intent
   
   • Intent to enter the land will suffice
   • D does not need to know the land belongs to another
3. Causation

Note - damages not required; compare to trespass to chattel and conversion

Question 8

Trespass to Chattel & Conversion

Answer 8

Two separate but similar torts; the difference is the level of interference with P’s property and the damages P can recover

Elements:

1. D interferes with P’s right of possession in tangible personal property (chattel)
   
   • Interference usually occurs through dispossession (depriving P of his possessory rights in chattel) or intermeddling (damaging P’s chattel)
   • Trespass - minor interference or damage
   • Conversion - Significant interference or damage that justifies D paying the chattel’s full value
     
     • A longer and/or more damaging use of P’s chattel gives rise to conversion
2. Intent
3. Causation
4. Damages - P must have some loss of use
   
   • Trespass - P can recover cost of repair or rental value of chattel
   • Conversion - P can recover full market value at the time of conversion or repossess the chattel (replevin)

Question 9

Consent

Answer 9

A defense to all intentional torts - if P consents to D’s otherwise tortious conduct, D is not liable for that act

• Capacity required - P must be capable of consenting
  
  • E.g., drunks, mentally impaired, and young children are incapable of consenting to tortious conduct

Express consent - P gives D verbal or written consent

• Nullified by duress, fraud, or mistake

Implied consent - D can reasonably infer P’s consent based on custom or P’s observable conduct

• Often arises if P participates in an activity or goes to a place where minor torts are common
  
  • E.g., if P plays tackle football, P has given implied consent to certain forms of battery
• Facts must indicate that based on P’s objective conduct, D was reasonable in interpreting P’s consent

Scope of Consent - D can be held liable for conduct that exceeds the scope of P’s valid consent (express or implied)

Question 10

Self-Defense, Defense of Others, & Defense of Property

Answer 10

Requirements for all defenses:

1. Reasonable belief - D must reasonably believe a tort is being or about to be committed
2. Proper timing - tort must be in progress or imminent
3. Reasonable force - must be proportionate to threat of harm
   
   1. Deadly force - allowed if D reasonably believes a life is in danger (never permitted to protect property alone)

Self-defense

• No duty to retreat
• Only available to initial aggressor if D responds to non-deadly force with deadly force

Defense of others - D must have reasonable belief that the person he is aiding would have the right of self-defense

• D may use as much force as he could have used if the injury was threatened to him (i.e., if he was acting in self-defense)

Defense of property - available to prevent tort against property

• Unavailable if initial actor had a privilege to enter land (e.g., recapturing chattel)
• Reasonable mistake only allowed as to whether an intrusion occurred, not whether privilege existed
• D must request that interferences stop before using force unless doing so would be futile or dangerous

Question 11

Necessity

Answer 11

A defense to torts against property (trespass to land, trespass to chattel, conversion) in which D damages P’s property in an effort to avoid greater danger

Requirements:

1. D’s interference with P’s property must be reasonably necessary to avoid an immediate threatened injury
2. Threatened injury must be more serious than the interference undertaken to avert it

Public necessity - absolute defense

• D’s invasion of P’s property must be reasonably necessary to protect the community or a large group of people
• Absolute defense - P cannot recover any damages

Private necessity - limited defense

• D invades P’s property to protect an individual or small group
• Limited defense - P can recover actual damages, but not punitive or nominal damages (Unless D’s act benefitted P)

Question 12

Recapture of Chattels

Answer 12

A defense to trespass; D may use peaceful means to recover possession of chattel taken unlawfully

Limitations & requirements:

• D-owner must make a timely demand for return of chattel
  
  • Exception - not required if making demand would be futile or dangerous
• D-owner may recapture from original wrongdoer or a third person who knows the chattel was wrongfully obtained
  
  • Recapture is not available if chattle is in the hands of an innocent party
• Privilege to enter depends on who possesses the property:
  
  • Wrongdoer’s property - reasonable time and manner
    
    • D-owner may enter at a reasonable time to reclaim chattel in a reasonable manner
  • Innocent person’s property - notice required
    
    • D-owner must first give notice to landowner
      
      • If landowner refuses entry, D may enter at a reasonable time and in a peaceful manner
    • If D’s chattel is on another’s property through D’s fault, D does not have a privilege to enter property
• Use of force - reasonable force may be used to recapture chattel if in hot pursuit of one who has wrongfully obtained possession
  
  • No deadly force or serious bodily harm permitted

Question 13

Defamation

Answer 13

A statement concerning P, made by D to a third person, that is harmful to P’s reputation

• If statement involves a matter of public concern or a public figure or official, falsity and fault may be required

Elements:

1. Defamatory statement - adversely affects P’s reputation
   
   • Must be based on specific facts
2. Concerning P - must be reasonably understood that the statement concerns a living P or a very small group of P’s
3. Publication - statement must be intintionally or negligently made to a third person
4. Harmful to P’s reputation
5. Falsity and fault - only required if statement involves a matter of public concern or a public figure or official
   
   • See Defamation: Constitutional Considerations

Liability for republication - the republisher of a defamatory statement is liable to the same extent as the original publisher

Damages - P’s burden in proving damages depends on whether the defamatory statement wa libel or slander

• See Defamation: Damages Considerations

Question 14

Defamation: Constitutional Considerations

Answer 14

1st Amend. considerations arise when defamation involves a public figure, public official, and/or a matter of public concern

Public figures, public officials, and matters of public concern

• Public figure = one who has pervasive fame or notoriety, or who voluntarily assumes a central role in a public matter
• Public official = public office holder
• Matter of public concern = statement relates to a community interest or concern (includes national interests)

Additional elements - if defamation involves a matter of public concern, P must prove:

1. Falsity - P must prove the statement was false
2. Fault - P must prove D was at fault; standards differ for public vs. private figures:
   
   • Public official or figure - actual malice standard (knowledge of the statement’s falsity or reckless disregard to whether it was false)
   • Private figure - negligence standard

Note - For defamation involving private figures and private matters, there is no fault standard at common law

Question 15

Defamation: Damages Considerations

Answer 15

Damages depend on whether the defamatory statement constitutes libel, slander, or slander per se

Libel - general damages are presumed; P does not have to prove special damages

• Libel = a written defamatory statement
  
  • Note - TV and radio broadcasts are considered libel

Slander - P must prove special damages unless the statement constitutes slander per se

• Slander = a spoken defamatory statement
• Special damages = a specific economic loss
• Slander per se - a defamatory statement that either:

a) Concerns and adversely relects on P’s business or professional reputation,
b) Claims that P has a loathsome disease,
c) Claims that P committed a crime of moral turpitude, or
d) Imputes a woman’s chastity (or sexual misconduct)

Question 16

What are the defenses to defamation?

Answer 16

Consent, truth, and privilege may be valid defenses to defamation

Consent

• E.g., P may consent to an organization investigating her and sharing its findings with potential employers

Truth

• Truth is a complete defense to a defamation claim

Privilege

• Absolute privilege - protects statements by govt. officials in their official capacity
• Qualified privilege - D’s liability for defamatory statements is limited if the purpose of the speech is to promote truthfulness and/or related to fair comment and criticism
  
  • E.g., letter of recommendation, employment reference, book review, accurate reports of public proceedings

Question 17

What are appropriation and false light?

Answer 17

Appropriation and false light are both invasion of privacy torts, along with intrusion upon seclusion and disclosure

Appropriation - use of P’s name or likeness for commercial purposes (e.g., promotion or advertisement) without P’s consent

• Newsworthiness exception - no liability for use of P’s name or likeness for the purpose of reporting news

False light - widespread publication of a falsehood or material misrepresentation about P that would be highly offensive to a reasonable person

• Includes mischaracterization of P’s views or conduct
• Matters of public concern - D must have actual malice or reckless disregard for the truth of the matter publicized
  
  • Note - this is the same as the consitutional considerations for defamation
• No newsworthiness exception

Defenses

• Consent - valid defense, although D may be liable if his actions exceed the consent given
  
  • Mistake as to if consent was given is not a valid defense
• Privilege - may be available as a defense to false light if D has an absolute or qualified privilege to publication (see defenses to defamation)
• Truth is not a valid defense to invasion of privacy claims

Question 18

What is intrusion upon seclusion and disclosure?

Answer 18

Intrusion upon seclusion and disclosure are invasion of privacy torts, along with appropriation and false light

Intrusion upon seclusion - intrusion upon P’s private affairs in a manner that would be highly offensive to a reasonable person

• Requirements:
  
  1. P must have a reasonable expectation of privacy
     
     • No reasonable expectation of privacy in public
  2. Intrusion must be highly offensive - e.g., peeping, eavesdropping, or using hidden cameras in P’s domain
• No newsworthiness exception

Disclosure - public disclosure of P’s private information

• Requirements - disclosure must be:
  
  1. Highly offensive to a reasonable person
     
     • Public activities are not objectionable
     • E.g., D announces that the mayor frequents strip clubs - no liability because the acts occur in public
  2. Publicized - made available to a public audience
• Newsworthiness exception - no liability if private facts are newsworthy

Defenses - consent is a valid defense; privilege is a valid defense to disclosure

Question 19

What are malicious prosecution and abuse of process?

Answer 19

Malicious Prosecution

• Arises when D initiates a frivoulous charge or claim against P with an improper purpose (e.g., filing a false police report)
• Elements:
  
  1. D commenced a prior criminal or civil legal proceeding against P
     
     • Note - prosecutors are immune
  2. Proceeding terminated in P’s favor
  3. No probable cause for the original proceeding
     
     • D knew P was not guilty (criminal) or liable (civil) or had insufficient facts to reasonably believe in P’s guilt or fault
  4. D had an improper purpose in initiating the proceeding
  5. Damages

Abuse of Process

• Arises when D uses the legal system as an ulterior purpose to threaten or act against P
• Elements:
  
  1. Wrongful use of process for an ulterior purpose
  2. Definite act or threat against P to accomplish an ulterior purpose

Question 20

What is misrepresentation?

Answer 20

Intentional Misrepresentation (fraud, deceit)

• Elements:
  
  1. D misrepresents a past or present material fact
  2. D knows or believes the misrepresentation is false
  3. D intends to induce P to act or refrain from acting in reliance on the misrepresentation
  4. Actual reliace by P (causation)
     
     • P must actually rely on the misrepresentation
  5. Justifiable reliance by P
     
     • P must be justified in relying on the misrepresentation
  6. Damages - P must suffer monetary loss

Negligent Misrepresentation

• Elements:
  
  1. D misrepresents a past or present material fact in a business or professional setting
  2. Breach of duty of care owed to a particular P (i.e., D knew P could rely on the misrepresentation)
  3. Actual and justifiable reliance by P
  4. Damages - P must suffer monetary loss

Question 21

What is intentional interference with business relations?

Answer 21

Arises when a third party interferes with an existing contract

Elements:

1. P has a valid contractual relationship or business expectacy
   
   • Includes contracts between P and a third party
2. D has knowledge of the relationship or expectancy
3. D intentionally intereferes with that relationship
   
   • Must be intentional - negligence is insufficient
4. D’s interference causes a breach or termination in P’s contract or expectancy
5. Damages

Privilege defenses

• D’s conduct may be privileged when it is a proper attempt to obtain business or protect his interests
  
  • E.g., competing for P’s customers

Question 22

Negligence: Elements and Standards

Answer 22

Elements:

1. Duty of care
   
   • D has a duty to conform to a specific standard of care
   • Unless an alternative standard of care applies, D’s duty is to behave like a reasonably prudent person under the circumstances presented
2. Breach of duty - see Duty of Care card
3. Causation
   
   • Actual cause and proximate cause (see causation cards)
   • Note - the MBE may refer to actual cause as “cause-in-fact” or “factual casue” and proximate cause as “legal cause”
4. Damages - See damages card

Negligence basics

• Negligence is analyzed under an objective standard by comparing D’s actions to a reasonable person under similar circumstances
  
  • I.e., negligence law assesses D’s behavior based on the common judgment of a collective people
• Assess D’s behavior given the circumstances under which she acted

Question 23

Duty of Care

Answer 23

D owes a duty of care - to behave like a reasonably prudent person - to all foreseeable plaintiffs in the zone of danger

Default standard of care - reasonably prudent person (RPP)

• D’s duty is to behave like a reasonably prudent person under the circumstances
  
  • RPP is considered to be someone with D’s physical characteristics, but with the knowledge and mental capacity of an ordinary person

Foreseeable victims - those within the zone of danger

• Zone of danger = the area around D’s activities in which a P could foreseeably be injured
• Rescuer’s exception - if D puts himself or another in danger and a third person attempts to rescue, D can be held liable for the rescuer’s injuries, even if unforeseeable
  
  • Does not apply to emergency personnel (e.g., firefighters or police) if their injury results from a risk inherent to the job
• Prenatal injury - a duty of care is owed to a viable fetus
• Intended economic beneficiaries - a duty of care is owed to third-party beneficiaries if their harm is foreseeable

Question 24

Specialized Standards of Care

Answer 24

Children - held to the standard of care of a like child of similar age, education, intelligence, and experience (subjectivity test)

• Generally, children under seven lack capacity to be held negligent

Common carriers & innkeepers - held to an “utmost care” standard

• Liable for even slight negligence to passengers or guests

Custom or usage in an industry - can be used to establish a standard of care, but failure to adhere does not automatically give rise to a breach of duty

Professionals - expected to act with the care of an average member of the profession in good standing in similar communities

• Specialists (e.g., neurosurgeons) are held to a national standard of care

Statutory standard of care - see statutory standard of care card

Owners/occupiers of land - see owners/occupiers of land card

Question 25

Statutory Standards of Care and Negligence Per Se

Answer 25

An existing statute may establish a duty of care in which case the specific duty imposed by the statute will replace the general common law duty of care

• Negligence per se - violation of the statute means P must only prove causation, not breach of duty
  
  • Under majority rule, violation operates as a conclusive presumption of duty and breach of that duty
• Compliance does not automatically clear D of liability

Requirements:

1. The statute provides a criminal penalty
2. Standard of conduct is clearly defined in the statute
3. P is within the class of people the statute was designed to protect
4. The statute was designed to protect against the type of harm P suffered

Statutory standard of care does not apply if:

a) Compliance is more dangerous than non-compliance, or
b) Compliance is impossible under the circumstances

Question 26

Duty of Care for Owners & Occupiers of Land to Trespass

Answer 26

Owners and occupiers of land may have a duty of care for anticipated trespassers and child trespassers

• Same standard of care applies for owners and occupiers

Unknown or undiscovered trespassers - no duty owed

Anticipated trespassers - where owner has reason to believe of trespassers on her land

• Activities - owner has duty of reasonable care in carrying out activities on her property
• Dangerous conditions - owner has a duty to make safe or warn of any known, concealed, man-made hazards
  
  • Note - this is rare; look for spring guns, traps, etc.

Attractive nuisance doctrine for child trespassers

• Owner must take reasonable care to eliminate dangers on her property or protect children from those dangers if:
  
  1. She is aware or should be aware of a dangerous condition (natural or artificial) on her property;
  2. She knows or should know children are in the vicinity;
  3. The condition is likely to cause injury if encountered; and
  4. The magnitude of the risk outweighs its utility or the expense of remedying it

Question 27

Duty of Care for Owners of Land to Licensees and Invitees

Answer 27

Licensee - one who enters land with owner’s permission for his own purpose or business (i.e., not for landowner’s benefit)

• E.g., relatives, friends, social guests

Invitee - one who enters land held open to the public or who enters with owner’s permission to confer a commercial benefit

• E.g., store patron, concert goer

Duty of care owed:

• Activies carried out on property - reasonable care
• Known dangerous conditions - duty to warn or make safe
• Duty to inspect - n/a for licensees
  
  • Invitees - owners have duty to conduct a reasonable inspection for non-obvious dangers and make them safe
  • Note - this is the only significant difference between duties for licensees and invitees

Scope of duty - limited by scope of the invitation/license

• Owner’s duty extends only to those areas where one is an invitee or licensee (e.g., store owner does not owe duty of care in employees-only area)

Note - police and firefighters are considered licensees, but cannot recover for injuries suffered in the line of duty if the injury results from a risk inherent in the job

Question 28

Breach of Duty

Answer 28

D breaches his duty when his conduct falls short of the standard of care owed under the circumstances

To demonstrate a breach, P can argue:

a) D breached the applicable standard of care - includes:

• RPP standard
• Negligence per se - violation of a relevant statute
• Specialized standard of care
• Custom usage in an industry - not an automatic breach, but may be relevant

b) Res ipsa loquitur - the very occurrence of the accident causing P’s injuries suggests negligent conduct

• Arises if facts cannot establish breach of duty because circumstances surrounding the event are unknown to P
• Requirements - P must show:
  
  1. Inference of negligence - the harm would not normally occur absent negligence
  2. Attributable to D - this type of harm normally results from negligence by one in D’s position
     
     • Often satisfied by showing that the injuring-causing instrument was in D’s exclusive control
  3. Injury was not attributable to P

Question 29

Actual Cause

Answer 29

Establishes a causal connection between the alleged breach of duty and the resulting injury

“But-for” test - but for D’s alleged breach of duty, P’s injury would not have occurred

Substantial factor test - for multiple causes of P’s injury

• D’s breach is the actual cause if it was a substantial factor in bringing about P’s injury
• Used if multiple causes bring about P’s injury and any one of them alone would have caused the injury
  
  • E.g., fires start on D1’s land and D2’s land, each of which spreads to P’s land and destroys P’s house

Burden-shifting test - for several possible causes of P’s injury

• Used if multiple Ds act (often simultaneously), only one causes P’s injury, but it’s unclear which D caused the injury
  
  • E.g., P is hit by a stray bullet at a busy firing range and it’s unknown which shooter hit P
• Burden of proving actual cause shifts to Ds
  
  • If no D can prove another D was responsible, all Ds are jointly and severly liable

Note - MBE may refer to actual cause as “cause-in-fact”

Question 30

Proximate Cause

Answer 30

Establishes that it is fair under the law to hold D responsible for P’s injuries

Foreseeability - measuring stick for proximate cause

• D is liable for the foreseeable outcome of his conduct

Direct causes - if P’s injury is the direct consequence of D’s negligent conduct, D is liable unless the outcome is unusually bizarre or unpredictable

Indirect/intervening causes - where contributing acts occur after D’s conduct and combine with that conduct to cause P’s injuries

• D is usually liable if injury could have possibly resulted even without the intervening forces
• Approach - Consider the type of harm being protected against by holding D negligent for his conduct
  
  • If P’s resulting injury is the type of harm being protected against, D’s conduct is the foreseeable, legal cause of P’s injury

“Eggshell Plaintiff Rule” - D takes P as he finds him and is liable for the full extent of P’s injuries, regardless of whether they are foreseeable

Question 31

Damages

Answer 31

P must prove damages, which are not presumed in negligence cases; nominal damages are not available

Types of damages:

• Personal injury - D must compensate P for all damages
  
  • Includes past, present, and prospective damages
  • Economic and non-economic damages are recoverable
• Property damage - P can recover reasonable cost of repair
  
  • If property is irreparable, damages = full market value at the time the accident occurred
• Punative damages - only recoverable if D’s conduct is wanton and willful, reckless, or malicious

Non-recoverable damages - P can never recover for:

• Interest from the date of damage in personal injury cases
• Attorneys’ fees

Duty to mitigate - P has a duty to take reasonable steps to mitigate damages

Question 32

Comparative & Contributory Negligence, Assumption of Risk

Answer 32

Comparative negligence - D can establish that P’s injuries are at least partially the result of P’s own negligence

• Court apportions fault between P and D and reduces P’s recoverable damages accordingly
• Partial/modified comparative negligence - P can only recover damages if he was less than 50% at fault
• Pure comparative negligence - P can recover damages even if he was more than 50% at fault

Contributory negligence - P is barred from recovery if D establishes that P’s negligence contributed to her injuries

• Last clear chance defense - P can rebut D’s contributory negligence claim by alleging D had the last clear chance to avoid the injury-causing accident

Assumption of risk - D can deny P’s recovery by establishing that P assumed the risk of damage casued by D’s act

• Requirements - D must show:
  
  1. P knew or should have known the risk (objective standard); and
  2. P voluntarily proceeded in the face of that risk

Note - defenses vary by state; MBE questions usually note what defense applies; otherwise assume pure comparative negligence

Question 33

Negligent Infliction of Emotional Distress

Answer 33

P may recover for emotional distress resulting from D’s negligence, but only if P’s emotional distress gives rise to some physical manifestation

Elements:

1. D’s negligence results in a close risk of bodily harm to P
   
   • P must be in the “zone of danger” to recover
   • I.e., D’s act must have nearly caused physical harm to P
2. D’s negligence results in P’s severe emotional distress
3. P exhibits some physical manifestation attributable to her emotional distress
   
   • E.g., heart atttack, miscarriage
     
     • Non-physical symptoms like depression and nightmares are insufficient
   • Symptoms of the physical manifestation can be instantaneous or appear days later

Bystander claims - P-bystanders outside the zone of danger may recover for emotional distress resulting from D’s negligence if:

1. P and the injured person are closely related;
2. P was present at the scene of the injury; and
3. P personally observed or perceived the event

Question 34

Strict Liability: Prima Facie Case

Answer 34

Under strict liability, D has an absolute duty to make activities safe

• Allows P to establish D’s liability for P’s injuries without proving D acted negligently

Strict liability is limited to cases involving:

• Ultrahazardous and/or abnormally dangerous conditions (see card)
• Animal conduct (see card)
• Products liability

Prima facie case:

1. Nature of D’s activity imposes absolute duty to make safe
2. Causation - actual and proximate cause
   
   • Dangerous aspect of D’s activity caused P’s injury
3. Damages to P’s person or property

Note - no amount of due care will relieve D of liability under strict liability

Defenses - assumption of risk, comparative negligence

Question 35

Strict Liability: Abnormally Dangerous Conditions

Answer 35

Abnormally dangerous or ultrahazardous activities or conditions give rise to strict liability for any resulting injuries

Requirements for proving abnormally dangerous activity:

1. The condition or activity imposes a severe risk of harm to persons or property
2. It cannot be made reasonably safe
   
   • Cannot be performed without serious risk of harm
3. The condition or activity is uncommon in the community
   
   • Note - often arises on the MBE with explosives, toxic and/or biohazardous materials

Injury must result from the abnormally dangerous activity

• Watch for fact patterns where abnormally dangerous conditions exist, but do not cause P’s injury
  
  • E.g., truck carrying toxic waste in sealed containers, which fall and crash into P;s car but do not spill
    
    • No strict liability because the abnormally dangerous nature of the containers did not cause P’s injury

Question 36

Strict Liability: Animal Conduct

Answer 36

Property damage from trespassing animals

• Animal owners are strictly liable for reasonably foreseeable damage resulting from their animal’s trespass on another’s property
  
  • Does not apply to household pets

Personal injuries

• Wild animals - owners are strictly liable to licensees and invitees for unprovoked injuries caused by their wild animals
• Domestic animals - no strict liability unless owners know of their animal’s unusually dangerous propensities
  
  • E.g., if a dog has previously bitten people, its owner is strictly liable; but the negligence standard applies if this is the first time this dog has bitten anyone
• Trespassers cannot recover - trespassers are generally not entitled to recover under strict liability

Question 37

Strict Liability: Products Liability

Answer 37

Elements:

1. D is a commercial supplier
   
   • Suppliers have a strict duty to supply safe goods
   • Commercial supplier = one who routinely deals in the product sold, including any merchant in the stream of commerce
     
     • E.g., manufacturer, distributor, supplier
     • Casual sellers, service providers are not suppliers
2. Product is defective
   
   • Defect must make the product unreasonably dangerous
   • See card on types of defects
3. Defective product was actual and proximate cause of P’s injury
   
   • Product must not be substantially altered between leaving commercial supplier and reaching consumer
4. P used the product in a foreseeable manner
   
   • P’s misuse of the product can be foreseeable

Who can sue - foreseeable users or bystanders

• E.g., buyers as well as their guests, employees, family, etc

Damages - P can recover for physical injury or property damage, but not solely for economic loss

Question 38

Types of Product Defects

Answer 38

Manufacturing defect - product departs from its intended design, causing it to be more dangerous than designed

• P must show that the product failed to perform as safely as an ordinary consumer would expect

Design defect - product creates an unreasonable risk of danger due to its faulty design

• P must show that a hypothetical alternative design exists that is safer but has as comparable cost and purpose

Inadequate warning - manufacturer fails to adequately warn of a non-obvious risk associated with a product’s use

• Manufacturer also has a duty to warn of foreseeable dangers from misuse of the product
• P must show that the product has risks that:
  
  1. Cannot be eliminated by redesign, and
  2. Consumers would not ordinarily notice
• Unavoidably unsafe products - if product cannot be made safe for its ordinary use (e.g., chain saw, firearms), a manufacturer must give:
  
  1. Proper instructions for use; and
  2. Adequate warnings of known dangers
• D is not liable for risks that were unforeseeable at the time the product was marketed

Question 39

Products Liability: Negligence Theory

Answer 39

P may establish liability for a product defect under standard negligence theory

• Note - a product defect is almost always easier to establish under a strict liability theory

Elements:

1. Duty of care - each commercial supplier in the stream of commerce owes a duty to all foreseeable product users and bystanders
2. Breach of duty - D’s negligence leads to the supplying of a defective product
   
   • Retailers and wholesalers satisfy due care by a cursory inspection of the product (this makes it difficult to hold them negligent for product defects)
3. Causation - P must show actual and proximate cause
   
   • Note - an intermediary’s negligent failure to discover a defect does not absolve the upstream commercial supplier of liability
4. Damages - P must show physical injury or property damage
   
   • Economic loss alone is not recoverable

Defenses - all standard negligence defenses are available

Products liability as battery - if a commercial supplier places a product into the stream of commerce knowing that it may harm someone, this gives rise to a tort of battery

Question 40

Implied Warranties

Answer 40

Implied in every sale of goods is a warranty of merchantability and warranty of fitness for a particular purpose (if applicable)

Implied warranties

• Merchantability - seller warrants that goods are of average acceptable quality (i.e., without defects) and generally fit for their ordinary purpose
• Fitness for particular purpose - if seller a) knows or has reason to know the particular purpose for which buyer is purchasing, and b) buyer relies on seller’s skills or judgment, seller implies that goods are fit for that purpose
  
  • E.g., a shoe store salesperson helping a buyer find ideal running shoes for running on trails

Who can sue - implied warranty protection extends to a buyer’s family, household, and guests who suffer personal injury

Elements:

1. Warranty - existence of an implied warranty
2. Breach - product fails to live up to applicable warranty
3. Causation - actual and proximate
4. Damages - personal, property, and economic are all recoverable

Defenses - assumption of risk, contributory and comparative negligence

Question 41

Liability Based on Representation

Answer 41

D may be liable if a product falls short or an affirmative representation made to buyer

Express warranty - a statement of fact or promise regarding goods sold that becomes part of the basis of the bargain

• Any consumer or bystander can sue for breach
  
  • Bystanders need not have relied on the express warranty, as long as the original purchaser did
• Elements - same as for implied warranties:
  
  1. Express warranty - relied upon by purchaser
  2. Breach - product fails to live up to the warranty
  3. Causation - actual and proximate
  4. Damages - personal, property, and economic loss
• Defenses - assumption of risk, contributory and comparative negligence

Misrepresentation of fact - seller will be liable for any misrepresentation made in the course of a sale if:

1. Seller madea misrepresentation regarding a material fact concerning the quality or use of the goods;
2. Seller intended to induce reliance by buyer; and
3. The misrepresentation induced justifiable reliance

• Defenses - no assumption of risk; contributory negligence available if misrepresentation was negligent, not intentional

Question 42

Nuisance

Answer 42

Tortious invasion of either public or private property rights

• Note - nuisance is a harm caused by tort, not a tort itself

Private nuisance - a substantial, unreasonable interference with another individual’s use or enjoyment of her property

• Substantial interference - must be offensive, annoying, or inconvenient to the average person in the community
  
  • Interference is not substantial if P is hypersensitive or using property for a specialized, abnormal purpose
• Unreasonable interference - severity of P’s injury must outweigh the utility of D’s conduct

Public nuisance - unreasonable interference with health, safety, or property rights of the community at large

• Recovery is only available to a private party if she suffered unique damage not suffered by the public at large
• Govt. usually brings public nuisance suits

Potential remedies - money damages, injunctive relief

Defenses

• P cannot recover if he “came to the nuisance” (e.g., bought property next door) for the sole purpose of bringing suit
• Contributory negligence is available if P asserts a negligence theory and acted negligently in creating the nuisance

Question 43

Vicarious Liability

Answer 43

Arises when D commits a tort against P and a third person is held liable due to his relationship with D

Doctrine of respondeat superior - employers are liable for torts committed by employees within the scope of their employment

• Intentional torts are usually outside the scope, unless:
  
  1. The job requires use of force (e.g., bouncer),
  2. The job entails creating friction (e.g., bailbondsman), or
  3. The intentional tort is done to further the employer’s goals (e.g., physically breaking up a fight in a store)

Independent contractors - employers are generally not liable for torts committed by independent contractors, except for acts that are inherently dangerous or duties that are non-delegable

Partnership - each partner is vicariously liable for any other partner’s torts committed within the scope of the partnership

Parent-child - parents are not liable for their children’s torts

• But parents may be separately negligent if they had reason to know of a child’s propensity to injure or they facilitated the tort

Tavernkeepers - businesses serving alcohol may be held liable to a P injured by an intoxicated partron if the business was negligent in serving the patron

Question 44

Joint & Several Liability, Contribution, & Indemnity

Answer 44

Joint and several liability - arises if the acts of two or more Ds combine to produce a single indivisible injury

• Each D is jointly and severally liable for the entire harm if his actions were a factor in bringing about P’s injury
• Satisfaction - if P recovers fully from one D, she may not recover more from a jointly liable D

Contribution - D who pays more than her share of damages under joint and several liability can assert a claim against jointly liable parties for the excess paid

• Not applicable to intentional tort liability
• Contribution is usually imposed in proportion to relative fault

Indemnity - involves shifting the entire loss between or amongst Ds

• Available by contract, in vicarious liability situations, or under strict products liability