MBE One Sheet Flashcards
1
Q
NEGLIGENCE
A
- P must prove duty, breach, causation, & harm to make a claim for negligence.
2
Q
DUTY
A
- GENERAL RULE: The reasonably prudent person standard applies.
- A few factors are considered in determining if D was acting as a reasonably prudent person:
(1) Children: Look atage, intelligence, & experience of the child. - An exception exists if child was engaged in an adult activity. If the child was engaged in an adult activity, use the *reasonably prudent person *standard.
- Tip: examples of an “adult activity”: driving a car/boat/shooting a gun.
(2) Physical characteristics: take into account if D is physically impaired.
(3) Professionals: take into account D’s superior knowledge.
3
Q
Duty:
A few other factors to consider when noting duty owed by D
A
- Statute—negligence per se: If D violates a statute & P was in class of people that statute was trying to protect & P received the injury the statute was trying to prevent, duty & breach are established.
- Tip: P still must prove** causation & harm.**
- Custom: Custom generally is evidence of DOC. In professional malpractice cases, it is conclusive evidence.
- Duty to control 3rd parties: Generally, there is not a duty to control conduct of 3rd parties.
- However, one has a duty to act reasonably to control 3rd party if one has a **special relationship **w/ 3rd party (owner & occupiers of his land, a prison & its prisoners, or a mental institution & its patients).
4
Q
Duty:
Owners & Occupants of Land
A
- Undiscovered trespasser (person the premises possessor does not/should not know of): No duty of care is owed.
- However, premises possessor cannot act wantonly or willfully.
- Discovered trespasser (person premises possessor knows/should know is trespassing): The premises possessor must warn of/make safe unreasonably dangerous artificial conditions that it knows of.
- Licensee (social guest): premises possessor must warn of/make safe all concealed dangers that it knows of.
- Invitee (one that enters a public place/business): premises possessor must warn of/make safe all dangers that it knows/should know of
- Tip: this is the **only ** case where a duty to inspect is imposed on the premises possessor.
5
Q
BREACH
A
- P must show that D breached its DOC.
- Res ipsa loquitur: When circumstances surrounding injury are unclear, if P can show the injury likely was the result of negligence & that it likely was D that was negligent, P has made a case for breach.
- Tip: If P can show res ipsa loquitur, it means that the case should go to trial & no directed verdict should be entered for D. It does not necessarily mean that P wins his case.
6
Q
CAUSATION
A
- 2 types of causation that must be present—actual (but for) & proximate.
- Actual (but for) cause: there must be a factual connection between breach & injury suffered.
- Proximate cause: harm must be a foreseeable result of breach.
- Examples of harm that is considered foreseeable:
- (1) medical malpractice that occurs after an accident,
- (2) harm that occurs during rescue efforts to protect life & property endangered D’s negligence, and
- (3) a disease/subsequent accident that occurs after an accident.
7
Q
OTHER CAUSATION ISSUES
A
- Multiple causes: If there are 2/more Ds, use *substantial factor test. *
- If D’s breach was a substantial factor in causing the harm, D is liable.
- Alternative causes: P must show that all potential D’s are joined in the lawsuit & all D’s are negligent.
- Burden then will shift to each D to show its breach of duty was not the actual cause of the harm.
8
Q
HARM
A
- P must suffer actual harm to successfully sue in a negligence action.
- Tip: P cannot recover punitive/nominal damages in a negligence action.
- P is not permitted to recover in negligence/strict liability if he has suffered a pure economic loss (no injury to himself).
- Tip: in this case, P may have a remedy in K (but not tort).
9
Q
DEFENSES:
Comparative negligence:
A
- Judge/jury compares P’s fault w/ D’s fault & assigns percentages to each.
- Pure comparative negligence: P can recover no matter how negligent he is. His damages simply are reduced by his percentage of fault.
- Tip: this is the default on the MBE unless otherwise stated.
- Partial (modified) comparative negligence: if P was more at fault than D (or in some states, if P & D were equally at fault), P cannot recover.
10
Q
DEFENSES:
Contributory negligence:
A
- P cannot recover if he was even a little bit negligent unless D had the last clear chance to avoid the injury. (Do not apply this doctrine on the MBE unless you are told to!)
- Assumption of risk: If P knew of the risk & voluntarily assumed it, he generally cannot recover damages. (However, some courts will analyze assumption of risk using a comparative fault analysis.)
11
Q
MULTIPLE DEFENDANTS:
Joint and several liability:
A
- In a joint & several liability jurisdiction, P may recover all of his damages from any single D (& D may seek contribution from a co-D).
- In a several liability jurisdiction, each D is liable only for his percentage of fault.
- Tip: apply joint & several liability on the MBE unless told otherwise.
12
Q
MULTIPLE DEFENDANTS:
Employees and other agents:
A
- Employers/principals are vicariously liable for torts of their employees/agents that are committed in the scope of employment. (Note: intentional torts usually are outside scope of employment unless they were foreseeable/were committed for the purpose of serving employer.)
- If an employer/principal is found liable under this theory, it may seek indemnity (i.e., full payback) from its employee.
13
Q
MULTIPLE DEFENDANTS:
Independent contractors:
A
- A principal is generally not liable for torts of his independent contractors.
- However, a principal is liable if duty is **nondelegable/activity is inherently dangerous. **
- Principal also may be liable for his own negligence in **hiring, firing, or supervising **the contractor.
- Tip: a duty generally is nondelegable if it involves safety.
14
Q
MULTIPLE DEFENDANTS:
Parental relationship:
A
- Generally, parents are not vicariously liable for acts of their children.
- However, a parent may be directly liable for his
own negligence (e.g., failure to supervise).
15
Q
INTENTIONAL TORTS:
Assault:
A
- D acts w/ intent to cause a harmful/offensive contact (or imminent apprehension) & an imminent apprehension directly/indirectly results.
- Tip: Apprehension does not mean fear. Apprehension is knowledge/anticipation of the impending contact.
16
Q
INTENTIONAL TORTS:
Battery:
A
- D acts w/ intent to cause a harmful/offensive contact (or imminent apprehension) and a harmful/offensive contact directly/indirectly results.
17
Q
INTENTIONAL TORTS:
False imprisonment:
A
- D acts w/ the intent to confine/restrain P to a bounded area, actual confinement occurs, & P either knows of the confinement/is hurt by it.
18
Q
INTENTIONAL TORTS:
Intentional infliction of emotional distress (IIED):
A
- D intentionally/recklessly engages in extreme/outrageous conduct that causes P to suffer **severe emotional distress. **
- Tip: P does not need to show physical symptoms to prevail. However, P must show she suffered “severe emotional distress.”
19
Q
INTENTIONAL TORTS: Trepass to Land; Trepass to Chattels; Converison
A
(1) Trespass to land: D physically invades land of another & intends to be where he is.
(2) Trespass to chattels: D intentionally interferes w another’s personal property & harm results. The damages are the cost to repair the property.
(3) Conversion: D** intentionally interferes** w/ another’s personal property & a** serious & substantial harm** results. The damages are the fair market value of the property.
20
Q
INTENTIONAL TORTS
A
21
Q
INTENTIONAL TORTS:
Defenses
A
- Consent: this can be express/implied.
- Self-defense: D reasonably believes force is necessary to protect against the unlawful use of force.
- Public necessity: D acts to protect public from a greater harm that would have occurred had he not acted.
- Private necessity: D acts to protect an interest of his own. He is not liable for a tort, but he still must pay for actual damage caused.
- A note on transferred intent: intent can transfer for torts involving assault, battery, false imprisonment, trespass to land, & trespass to chattels.
22
Q
Other Torts:
NUISANCE
A
- Private nuisance: D uses his property in a way that causes a substantial unreasonable interference w/ P’s use/enjoyment of his land.
- Tip: Do not take into account P’s peculiar use of his land. Ask if D’s use of his land would substantially interfere w/ an average member of the community’s use & enjoyment of his property.
- Public nuisance: D unreasonably interferes w/ the health, safety, or morals of a community. In order to successfully sue, P must suffer unique damages
23
Q
Other Torts:
Misrepresentation
A
(1) There is a material misrepresentation by D,
(2) D knew his statement was false/said it w/ reckless indifference to the truth,
(3) he had the intent to induce the misrepresentation, and
(4) P relied on it and suffered pecuniary damage.
24
Q
Other Torts:
Intentional Interference with Business Relations
A
(1) There is a valid business relationship/expectancy that existed between the parties that D knew of;
(2) D intentionally coerced one of the parties to terminate relationship, breach a contract, or withhold a business expectancy;
(3) D was not authorized to interfere; and
(4) the interference resulted in damages
25
Q
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED)
A
The general elements of NIED:
(1) D is negligent,
(2) P suffers physical symptoms from its emotional distress, and
(3) P is either in zone of danger/P witnesses a negligent injury to a person closely related to P.
Note: There are **special cases ** where physical symptoms are not necessary to prove. These include cases where a corpse is mishandled & cases involving erroneous reports of a relative’s death to P
26
Q
STRICT LIABILITY:
A
- In a strict liability case, P must prove duty (which is, in this case, absolute), causation, & harm.
- Tip: in a strict liability case, whether D was acting reasonably is immaterial.
27
Q
STRICT LIABILITY:
Wild animals:
A
- D is strictly liable for foreseeable harms caused by wild animals.
- Examples of wild animals include: skunks, bears, and monkeys.
- Tip: strict liability is not available to a trespasser (trespasser can sue for negligence but not strict liability).
Tip: Negligence must be shown if harm is caused by a domestic animal (pet/farm animal). - Examples include dogs, cats, sheep, honey bees, rabbits, horses, & cows.
28
Q
STRICT LIABILITY:
Abnormally dangerous activities:
A
- An abnormally dangerous activity is one that creates a foreseeable risk of serious harm even when reasonable care is used, & activity is not a matter of common usage in the community.
- Tip: examples include blasting, mining, explosives, etc.
29
Q
STRICT LIABILITY: Products liability:
A
- D must be a merchant.
- Product must be defective at time it left the D’s hands.
- Types of defects:
(1) Manufacturing defect: product departs from its intended design & it is more dangerous than expected.
(2) Design defect: product comes out exactly as manufacturer intended. However, there is an alternative design that is safer, practical, and cost-effective.
(3) Lack of warning/instructions: - No warning: If there’s a hidden risk, there should be a warning. If risk is obvious, no warning necessary.
- Yes warning: examine size of warning, color, if there are pictures, etc. to see if it’s adequate.
- Liability: Everyone in chain of distribution is liable under a strict products liability theory.
- Tip: pay careful attention to the call of the question to see if you are supposed to apply a strict liability standard/another standard (e.g., negligence).
- Defenses: assumption of risk, comparative negligence, or unforeseeable misuse of a product.
30
Q
DEFAMATION
General Defamation Requires 4 Elements:
A
(1) defamatory statement about P,
(2) an unprivileged publication of statement,
(3) fault (at least negligence), and
(4) damages.
31
Q
DEFAMATION:
Libel
A
- In libel cases (cases where defamatory statement is written/ recorded), damages are presumed.
32
Q
DEFAMATION:
Slander
A
- In slander cases, damages are presumed if the slander is in one of the four slander per se (CLUB) categories:
(1) committing a crime of moral turpitude,
(2) suffering from a loathsome disease,
(3) unchastity if P is a woman, or
(4) something that reflects badly on P’s business/profession
33
Q
DEFAMATION:
Public Figure Cases
A
- If P is a public figure, he also must prove that the statement is false & that D acted with malice.
- Tip: Memorize definition of malice for public figure cases.
- Malice is present when D knows the statement is false/acts with reckless disregard as to whether it is true/false.
34
Q
DEFAMATION:
Defenses
A
- Consent
- Truth
- Privileges: Privileges can be absolute (made during legislative, executive, or judicial proceedings) or qualified (when candor is encouraged).
- Tip: common examples of when D may have a qualified privilege is when he is speaking as a past employer of P for a job reference or if he is speaking to a police investigating a crime.
- Note: injunctions generally are not granted in defamation cases as they are viewed as prior restraints that interfere with First Amendment rights.
35
Q
INVASION OF PRIVACY (FAID) AND DEFENSES
A
- False light: D widely spreads facts about P, which places P in a false light that would be offensive to a reasonable person.
- Appropriation: D uses P’s name/likeness in an unauthorized way to advertise a product.
- Intrusion: D intentionally pries/intrudes into a private place in a way that would be offensive to a reasonable person.
- Disclosure: D widely disseminates/publishes private information about P that would be highly offensive to a reasonable person.
- Consent is a defense to all four privacy torts.
- Defamation privileges apply to false light & disclosure.
