MBE One Sheet

Question 1

NEGLIGENCE

Answer 1

• P must prove duty, breach, causation, & harm to make a claim for negligence.

Question 2

DUTY

Answer 2

• 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.

Question 3

Duty:

A few other factors to consider when noting duty owed by D

Answer 3

• 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).

Question 4

Duty:

Owners & Occupants of Land

Answer 4

• 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.

Question 5

BREACH

Answer 5

• 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.

Question 6

CAUSATION

Answer 6

• 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.

Question 7

OTHER CAUSATION ISSUES

Answer 7

• 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.

Question 8

HARM

Answer 8

• 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).

Question 9

DEFENSES:

Comparative negligence:

Answer 9

• 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.

Question 10

DEFENSES:

Contributory negligence:

Answer 10

• 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.)

Question 11

MULTIPLE DEFENDANTS:

Joint and several liability:

Answer 11

• 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.

Question 12

MULTIPLE DEFENDANTS:

Employees and other agents:

Answer 12

• 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.

Question 13

MULTIPLE DEFENDANTS:

Independent contractors:

Answer 13

• 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.

Question 14

MULTIPLE DEFENDANTS:

Parental relationship:

Answer 14

• 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).

Question 15

INTENTIONAL TORTS:

Assault:

Answer 15

• 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.

Question 16

INTENTIONAL TORTS:

Battery:

Answer 16

• D acts w/ intent to cause a harmful/offensive contact (or imminent apprehension) and a harmful/offensive contact directly/indirectly results.

Question 17

INTENTIONAL TORTS:

False imprisonment:

Answer 17

• 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.

Question 18

INTENTIONAL TORTS:

Intentional infliction of emotional distress (IIED):

Answer 18

• 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.”

Question 19

INTENTIONAL TORTS: Trepass to Land; Trepass to Chattels; Converison

Answer 19

(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.

Question 20

INTENTIONAL TORTS

Question 21

INTENTIONAL TORTS:

Defenses

Answer 21

• 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.

Question 22

Other Torts:

NUISANCE

Answer 22

• 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

Question 23

Other Torts:

Misrepresentation

Answer 23

(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.

Question 24

Other Torts:

Intentional Interference with Business Relations

Answer 24

(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

Question 25

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED)

Answer 25

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

Question 26

STRICT LIABILITY:

Answer 26

• 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.

Question 27

STRICT LIABILITY:

Wild animals:

Answer 27

• 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.

Question 28

STRICT LIABILITY:

Abnormally dangerous activities:

Answer 28

• 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.

Question 29

STRICT LIABILITY: Products liability:

Answer 29

• 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.

Question 30

DEFAMATION

General Defamation Requires 4 Elements:

Answer 30

(1) defamatory statement about P,
(2) an unprivileged publication of statement,
(3) fault (at least negligence), and
(4) damages.

Question 31

DEFAMATION:

Libel

Answer 31

• In libel cases (cases where defamatory statement is written/ recorded), damages are presumed.

Question 32

DEFAMATION:

Slander

Answer 32

• 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

Question 33

DEFAMATION:

Public Figure Cases

Answer 33

• 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.

Question 34

DEFAMATION:

Defenses

Answer 34

1. Consent
2. Truth
3. 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.

Question 35

INVASION OF PRIVACY (FAID) AND DEFENSES

Answer 35

• 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.