MBE Review Flashcards
1
Q
Fact pattern: patient was scheduled for surgery with one doctor. The one doctor has an emergency right before the surgery, So had to get a second doctor to replace him. Battery?
A
Yes, because the patient did not consent.
2
Q
What is the prima facia case for battery?
A
an act by a defendant that will bring about an harmful and offensive contact to the plaintiff, intent on the defendant’s part, and causation.
3
Q
Is damages an element for battery?
A
No it is not.
4
Q
What are the elements of false imprisonment?
A
an act or an omission by defendant that confined or restrained plaintiff to a bounded area, intent by the defendant to do so, and causation.
5
Q
What damages can you recover from false imprisonment?
A
All foreseeable damages (humiliation included)
6
Q
What is shopkeeper’s privilege?
A
you can detain a shoplifter for a reasonable period of time for the purpose of making an investigation.
7
Q
What is the measure of damages in a conversion action?
A
the fair market value of the chattel converted at the time and place of conversion
8
Q
What are the elements of trespass to land?
A
an act of physical invasion of plaintiff’s real property by defendant, intent on the defendant’s part to bring the physical invasion, and causation.
9
Q
What are the elements of intentional emotional distress?
A
the plaintiff must show 1) an act by defendant amounting to extreme and outrageous conduct, 2) intent on the part of the defendant to cause plaintiff severe emotional distress, or recklessness as to the effect of defendant’s conduct, 3) causation, and 4) damages - severe emotional distress.
10
Q
What is the duty in negligent infliction of emotional distress?
A
the duty to not create a foreseeable risk of physical injury to the plaintiff
11
Q
Must the emotional distress in a negligent infliction of emotional distress cause physical symptoms?
A
Yes, unless the person within the zone of danger is a close family member.
12
Q
What is a nondisclosure of risks by a doctor in tort?
A
breach of a duty of care in negligence , which requires damages
13
Q
Does negligence per se create a special duty and what is that duty?
A
a criminal statute may replace the general duty of care with a more specific statutory duty if the proponent shows that 1) he is in a class intended to be protected by the statute and 2) the statute was designed to prevent the type of harm that was suffered.
14
Q
Can you use deadly force to protect your property from trespassers?
A
NO, you can never use direct or indirect deadly force to protect your property. Ex. company left electric fence on and trespasser came on prop.
15
Q
What is the common law rule for parents and their children’s torts?
A
Parents are not vicariously liable for their children’s torts
16
Q
What is the exception to the common law rule for parents and children’s torts?
A
a parent may be held liable for her own negligence in allowing the child to do something that injures another’s person or property.
17
Q
Although there is no duty to rescue, what if you start to try to help someone who is hurt?
A
You have a duty to act as a reasonably prudent person and will be liable for damages caused by your (as the rescuer) negligence.
18
Q
Under respondeat superior, will a employer be liable for its own negligent selection of the employee?
A
Yes, if has some reason to be on notice that the actions that resulted in harm were likely to occur.
19
Q
What is the duty of a professional?
A
the duty to exercise such superior judgment, skill, and knowledge as he actually possesses. (failing to select a existing better design is a breach of this)
20
Q
Is designing a wastewater treatment plant a abnormally dangerous activity?
A
No, because it is a matter of common usage in the community.
21
Q
Can you lose your status as an invitee?
A
Yes, when an invitee exceeds the scope of his invitation he loses the status (ex. going onto a portion of a premises that is block off from guests).
22
Q
elements of negligence?
A
- a duty of care, 2. breach of that duty, 3) actual and proximate cause, and 4) damages. You must show all of these elements.
23
Q
What is the general rule for proximate cause?
A
the defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts.
24
Q
When may an independant intervening force be foreseeable?
A
where the defendant’s negligence increased the risk that these forces would cause harm to the plaintiff.
25
Will a criminal act by a third person cut off the original defendant's liability?
No not if the defendant created a foreseeable risk that a third person would commit the crime.
26
If there are two independant actions that create a divisible injury to the plaintiff will the defendants be joint and severally liable?
No, they will each be liable only for the identifiable portion of their injuries.
27
What is the rule under a comparative contribution system?
any defendant required to pay more than her share of damages has a claim against the other jointly liable parties for the excess. nonpaying tortfeasors are required to contribute only in proportion to their relative fault.
28
In a pure comparative negligence, is a plaintiff's damages reduced by his percentage of fault?
yes, but they can still recover damages from the either defendant who is jointly and severally liable.
29
Who is liable in a strict liability action based on a defective product?
a commercial supplier of a product who sells the product in a defective condition unreasonably dangerous to consumers will be held strictly liable for the damage caused by the defective product.
30
What must the plaintiff prove in strict liability action based on a defective product?
the plaintiff must prove that the defendant is a commercial supplier of the product in question and that the product is expected to be supplied to the consumer without substantial change in the condition in which it is supplied. Plaintiff must prove defendant put the product into the stream of commerce by either selling it or producing it and placing it into the stream of commerce.
31
What must you establish to get someone for strict liability in a abnormally dangerous activity?
You have to show first that the defendant was doing an abnormally dangerous activity which is when i) it creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and ii) the activity is not a matter of common usage in the community. FURTHER, the scope of liability ONLY applies to the anticipated dangers from the activity. not from the normally dangerous aspect or propensity.
32
In a defamation case, and the person is a public figure, what does that person have to prove to recover?
That person has to prove that the other had actual malice defined as knowledge that the statement was false or reckless disregard as to its truth or falsity.
33
What is the tort of invasion of privacy by intrusion upon a person's seclusion?
this can be proved by showing an act of intrusion upon the seclusion of the plaintiff that would be highly offensive to a reasonable person,, where the thing intruded upon is private. (ex. physciatrist videotaping patients body language during appointment).
34
What must occur for a private nuisance action to go forward?
the interference with the plaintiff's use or enjoyment of his land must be substantial. This means that it must be offensive, inconvenient, or annoying to an average person in the community. It will not be substantial just because of a person's hypersensitivity.
35
A company that was the leading supplier of home water filtration systems had a network of sales promoters who were under contract for two- or three-year terms and were compensated solely by commissions earned from sales and by occasional bonuses. Veteran promoters also earned commissions by recruiting other promoters for the company. One of the company's veteran promoters was contacted by a former top sales representative for another manufacturer who was looking for similar sales opportunities in the region. The sales rep knew that the promoter might be able to get her a position with his company, which was looking for additional promoters. At the time he met with the sales rep, the promoter's contract with the company had one more month to run. When the promoter's contract with the company expired, he announced that he was forming his own business to market a different line of water filtration systems manufactured by a competitor of the company, and that the sales rep would be in charge of his promotional network.
The company brought an action against the promoter for interference with business relations for hiring the sales rep. At a preliminary hearing, the parties stipulated to the above facts and that the promoter was an independent contractor rather than an employee of the company. The promoter then filed a motion for a summary judgment in his favor.
Should the court grant the promoter's motion?
The court should not grant the promoter's motion because the jury could find that the promoter used improper means, while working for the company, to divert the sales rep for his own purposes. To establish a prima facie case for interference with business relations, the following elements must be proved: (i) existence of a valid contractual relationship between plaintiff and a third party or a valid business expectancy of plaintiff; (ii) defendant's knowledge of the relationship or expectancy; (iii) intentional interference by defendant that induces a breach or termination of the relationship or expectancy; and (iv) damage to plaintiff.
36
The plaintiff was exiting from a parking garage owned and operated by the city when he discovered that the exit ramp was blocked by construction barricades and a pile of broken-up concrete. No workers or detour signs were around and the plaintiff was in a hurry, so he backed up and drove down an entrance ramp that was clearly marked as such. As he came around a corner, his car was broadsided by a pickup truck. The plaintiff was seriously injured in the collision. A statute in the jurisdiction requires drivers to obey all traffic directional markings in both public and private parking lots and garages. The jurisdiction retains governmental immunity for municipalities.
If the plaintiff brings a lawsuit against the city to recover for his injuries, which of the following facts will be LEAST helpful in the city's defense?
The fact least helpful to the city's defense of the plaintiff's lawsuit is the identity of the workers who blocked the exit ramp. Under vicarious liability rules, a principal will be liable for the tortious acts of an independent contractor if the duty is nondelegable on public policy grounds; included is the duty of a possessor of land to keep its premises safe for its invitees. If the workers were negligent in leaving the ramp blocked without providing another means of exiting, the fact that they were not city employees would not absolve the city of liability; hence, their identity would be of no help to the city's defense. If the city was getting profits or collecting fees is helpful because government immunity for cities does not apply to Proprietary functions (i.e. those that would be provided for by a corporation).
37
A landowner had a swimming pool and a dressing cabana constructed in her spacious backyard. The pool was entirely within the confines of the landowner's property. However, one corner of the cabana extended a few inches onto a far corner of her neighbor's land. At the time of the construction, neither the neighbor nor the landowner was aware that the cabana extended onto the neighbor's property.
Does the neighbor have a cause of action for trespass?
yes, because the landowner built the cabana. you do not need an intent to trespass you just need an act of physical invasion.
38
A homeowner bought "20-pound test" fishing line for hanging potted plants on his porch. "20-pound test" in the fishing industry means that fishing line will not break under an initial stress of up to 20 pounds when a hooked fish tugs against the line, but not that it will support a constant 20-pound weight. Most sportfishers are aware of this technical meaning, but most laypersons are not, and the manufacturer put no warnings or explanations on the package in which the line was sold. The homeowner hung a 15-pound basket from his front porch, directly above an old-fashioned porch swing. A friend visiting the homeowner was sitting on the swing when the line holding the basket broke, causing the plant to fall and strike the guest on the head.
In a jurisdiction following the traditional rules for landowners and possessors of land, will the guest prevail against the homeowner in a suit to recover damages for her injuries?
response - incorrect
no, because the homeowner could not have known about the 20 pound test. s a social guest of the homeowner's, the guest is deemed to be a licensee; i.e., one who enters onto land with the owner's permission for her own purpose or business rather than for the owner's benefit. In a jurisdiction following the traditional rules for landowners and possessors of land, the owner owes a licensee the duty to warn of or make safe a dangerous condition known to the owner that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover. The owner has no duty to a licensee to inspect for defects nor to repair known defects. The homeowner, as a person who was not involved with fishing, had no reason to suspect that a fishing line that was "20-pound test" could not support the constant weight of a 15-pound basket. Thus, the homeowner did not know of the dangerous condition present in the form of the basket overhanging his porch. Because the homeowner was unaware of the danger, he was under no duty to warn the guest, a licensee, of the dangerous condition. Having violated no duty owed to the guest, the homeowner will not be held liable for her injuries.
39
A homeowner purchased a riding lawn mower from a lawn mower dealer. During his first use of the mower, the homeowner noticed that the mower was vibrating when he turned, but he was able to finish mowing. A few days later, the homeowner lent the mower to his neighbor. The neighbor was driving the mower back to his yard when he made a turn and a wheel broke off, causing the neighbor to be thrown off the lawn mower and onto the sidewalk. The neighbor was injured.
The neighbor brought a negligence action against the dealer for his injuries. At trial, the neighbor presented evidence that the wheel broke because of a manufacturing defect. The dealer presented evidence that the homeowner could have discovered the defect after the mower began vibrating when he used it for the first time.
In this action, who is likely to prevail?
the dealer because there was no evidence that the dealer had reason to know the lawnmower was defective. To prove breach of duty in a products liability action based on negligence, the plaintiff must show (i) negligent conduct by the defendant leading to (ii) the supplying of a defective product by the defendant. However, a dealer who buys from a reputable manufacturer with no reason to anticipate that the product is dangerous need make only a cursory inspection of the goods to avoid liability for manufacturing defects.
40
A ballplayer became ill soon after consuming sunflower seeds marketed by a farm products company. The package of seeds was inspected and foreign matter was discovered on the seeds.
If the ballplayer brings an action against the farm products company on the basis of strict tort liability, which of the following would be most helpful for the company to avoid liability?
The ballplayer's lack of evidence of causation is most helpful to the farm products company. One of the elements of a prima facie case for products liability based on strict liability is causation of some harm to the plaintiff by a defective product. The ballplayer must show that the farm products company is strictly liable as a commercial supplier of the seeds, and that the farm products company marketed a defective product. In addition, the defect must have actually and proximately caused some harm to the plaintiff, and there must be damages.
41
A man working at a clothing store discovered that his girlfriend, a coworker, had been taking money from the cash register. Not wanting to be a party to the situation, he ended the relationship and found another job. Not long after this, the man's new boss, who knew why the man had quit, came into the clothing store. He asked the girlfriend if she missed her boyfriend working with her at the store. She replied, "Yes, but when we found that he was stealing from the cash register, we had no choice but to let him go."
If the man sues his former girlfriend for defamation, the fact that the new boss knew the truth of why the man had left his job at the store will have what result?
It may diminish the damages he will recover. The girlfriend is liable for defamation because the statement does not have to be believed just published. Actual harm constitutes humiliation and emotional distress.
42
A pedestrian walking along an unpaved road on his way to work saw a school bus coming in the opposite direction suddenly begin to careen toward him. The bus driver had momentarily lost control of the bus while attempting to light a cigarette.
To avoid being hit by the bus, the pedestrian jumped off the road into a landowner's yard. Unfortunately, he landed in a bed of prize-winning zinnias and damaged them extensively.
In a suit by the landowner against the bus driver for the damages to her zinnias, what is the likely result?
The bus driver is liable to the landowner in a negligence action. The driver of a vehicle on a public road owes to foreseeable plaintiffs a duty of ordinary, reasonable care to refrain from creating an unreasonable risk of injury in the operation of the vehicle. In trying to light a cigarette while driving the bus, the bus driver created an unreasonable risk that he would lose control of the bus, thus endangering the physical safety and the property of other drivers on the road, pedestrians, and owners of property adjoining the road. There was a foreseeable risk of injury to the landowner or her property arising from the manner in which the bus driver drove the bus; thus, the duty of care extended from the bus driver to the landowner. This duty was breached when the bus driver drove the bus so as to create an unreasonable risk of injury to the landowner or her property. It was reasonably foreseeable that a pedestrian endangered by the manner in which the bus driver drove the bus would be compelled to enter the landowner's property and would damage the zinnias. By forcing the pedestrian to jump off the road to save his life, the bus driver actually and proximately caused the damage to the zinnias; where a defendant's actions cause another to react, liability will attach for any harm inflicted by the reacting person on another. Thus, the bus driver can be held liable in negligence for the damage to the landowner's zinnias.
43
A mother took her five-year-old child to a hospital emergency room for treatment. A doctor on the hospital staff molested the child while treating her. At the time, no one was in the treatment room except the doctor and the child; the mother had left the room to get a cup of coffee. Two weeks later, when the child told her mother what had occurred in the treatment room, the mother suffered severe emotional distress that caused her to become physically ill.
In an action against the doctor by the mother on her own behalf to recover for intentional infliction of emotional distress, is the mother likely to prevail?
NO, because the mother was neither the direct victim nor a contemporaneous witness. When the defendant intentionally causes severe, physical harm to a third person and the plaintiff suffers severe emotional distress because of her relationship to the injured person, the elements of intent and causation in an action for intentional infliction of emotional distress may be harder to prove. To establish these elements in such cases, the plaintiff is generally required to show the following: (1) the plaintiff was present when the injury occurred to the other person; (2) the plaintiff was a close relative of the injured person; and (3) the defendant knew that the plaintiff was present and a close relative of the injured person. Here, the mother was not present when the doctor molested her child, so she cannot recover under these criteria. Note that the plaintiff does not need to establish presence or a family relationship if she shows that the defendant had a design or purpose to cause severe distress to the plaintiff, but there is no evidence of that in the facts.
44
While visiting at his son's home, a grandfather tripped on a toy left on the floor by his four-year-old grandson. The grandfather fell and was severely injured. The grandfather regularly visited his son's home and was aware that the grandson routinely left toys scattered about the house. The son had never warned the grandfather to look out for toys.
The grandfather brought an action against his son to recover for his injuries. At trial, after the close of evidence, both the grandfather and the son have moved for judgment as a matter of law as to liability.
The jurisdiction has abolished intra-family immunity and applies the traditional rules of landowner liability.
What action should the court take?
Grant the son's motion because he had not duty to warn the grandfather of the toys on the floor. Under the traditional rules of landowner liability, the nature of a duty owed by an owner or occupier of land to those on the premises for dangerous conditions on the land depends on the legal status of the plaintiff with regard to the property, specifically, trespasser, licensee, or invitee. A licensee is one who enters on the land with the landowner's permission, express or implied, for her own purpose or business rather than for the landowner's benefit; social guests are considered licensees. Because the jurisdiction has abolished intra-family immunity and applies traditional rules of landowner liability, the grandfather will have the status of a licensee. The owner or occupier owes a licensee a duty to warn of or make safe a dangerous condition known to the owner or occupier that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover. Here, the facts state that the grandfather regularly visited his son's home and was aware that the grandson routinely left toys scattered about the house. Under these circumstances, the son had no duty to warn the grandfather about the toys and thus has not breached a duty to him.
45
A delivery company employed several messengers to deliver packages by car to nearby towns. The company also allowed some employees to use company cars for personal use from time to time. A clerical employee had her car in a body shop because she had run a red light and been broadsided by another vehicle. This was the second time she had run a light and been hit. She borrowed a company car for the weekend and was using it to do some grocery shopping. The employee negligently went through a red light and crossed the path of a rented van. The man driving the van swerved to avoid the employee and struck a light post and several parked cars, severely damaging the van. At the time of the accident, the driver of the van was exceeding the posted speed limit; he would have been able to avoid hitting the light post and the cars had he been going the proper speed.
The leasing company that had rented the van to the driver brought a lawsuit against the delivery company employee and the delivery company. The jurisdiction retains traditional contributory negligence rules.
If the delivery company prevails in the lawsuit, what is the most likely reason?
The delivery company had no reason to know of driver's driving record. negligence of driver will not be imputed to automobile owner.
46
A homeowner looked out his front window one day and saw a neighbor standing on a narrow ledge on the second story of the house across the street. He also saw a ladder lying on the ground beneath where the neighbor was stranded. The homeowner ran out and picked up the ladder and placed it against the side of the house. However, he set it atop a patch of ice. As the neighbor started down the ladder, a rotten rung broke and he fell to the ground and was injured.
If the neighbor sues the homeowner for damages for his injuries, will he recover?
No, because the homeowner's negligence was not the cause in fact of the neighbor's injuries, the rotten rung was.
47
Two law students ranked high in their class were competing for one opening at a prestigious law firm. During the interview with the hiring partner, one student was asked what he thought of the other's work as an editor of the law review. The student responded that there was a rumor around the school that the editor got outside help on her law review comment. Based in large part on his statement, that student was chosen over the law review editor, who later accepted a less lucrative position with another firm.
If the law review editor brings a slander action against the other student and establishes the above facts, will she prevail?
response - incorrect
The student's statement constitutes slander per se and therefore the student will be liable. To establish a prima facie case for defamation, the following elements must be proved: (i) defamatory language on the part of the defendant; (ii) the defamatory language must be "of or concerning" the plaintiff (i.e., it must identify the plaintiff to a reasonable reader, listener, or viewer); (iii) publication of the defamatory language by the defendant to a third person; and (iv) damages to the reputation of the plaintiff. Here, the student's suggestion that the law review editor received outside help on an article she authored impeaches her integrity and legal skills. The defamatory language directly related to the editor. The publication requirement is satisfied because the student made the statement to the hiring partner. To recover damages for slander, special damages must be pleaded and proved unless the spoken defamation falls within one of four categories, characterized as slander per se. Hence, a defamatory statement adversely reflecting on the plaintiff's abilities in his business, trade, or profession is actionable without pleading or proof of special damages. The student's statement adversely reflected on the law review editor's honesty and capability in her profession, and as such is slander per se.
