MBE Review_Torts

Question 1

Battery

Answer 1

Intent to Cause Harmful or Offensive Touching of another & Causation (result thereof)

Lack of Consent, Does not require intent to Harm, just a touching

Question 2

False Imprisonment

Answer 2

Intent to confine another w/o reasonable way to escape

Question 3

Trespass

Answer 3

Intent to cause a tangible thing/item to enter the land of another

Mistake of ownership is Not a defense

(ex. soap factory caused particles to fall onto farmer’s strawberries)

Question 4

Necessity (Private & Public)

Answer 4

Defense to Trespass

Private - entered someone’s land to avoid a greater harm (self or family members); limited defense, still liable for damages

Public - enter land of another to avoid a greater harm, but you’re saving Non-family members; absolute defense, not liable for damages

Question 5

Intent to Inflict Emotional Distress (IIED)

Answer 5

Intent to inflict Conduct that goes beyond the boundaries of decency (extreme & outrageous)
leads one to feel depression, shame, anguish, grief (mental tort)

Question 6

Negligent Infliction of Emotional Distress (NIED)

Answer 6

P must have suffered physical injury from distress

Must have damages, unless (1) mishandling of a corpse or (2) false report of a death

Question 7

Negligence Per Se

Answer 7

Protect & Prevent = statute designed to protect the party involved & to prevent the type of harm that occurred

Question 8

Rescuer

Answer 8

Rescuers are foreseeable P b/c Danger invites Rescue

reasonably prudent person standard - rescuer not liable unless negligent

Question 9

Invitee

Answer 9

Public guest

duty to inspect & to make safe

Question 10

Anticipated Trespasser

Answer 10

duty to be warned of known dangerous artificial conditions on property. no duty to inspect

Question 11

jointly & severally liable

Answer 11

when two or more tortious acts combine to proximately cause an indivisible injury to P, each torteasor is jointly & severally liable for the FULL amount of Damages

Question 12

Public Defamation

Answer 12

malice - knowledge of falsity, reckless disregard for the truth

Question 13

Private Defamation

Answer 13

show mere negligence in publishing, malice not required

Question 14

Defamation - presumed damages

Answer 14

LUMP
Loathsome disease
Impuning a woman's chastity
Moral Turpitude - accusation of
Imputing someone's Profession

Question 15

Privacy Torts

Answer 15

CLIP
Commercial appropriation
False Light
Intrusion into one's seclusion/solitude
Public disclosure of private facts

Question 16

Private Nuisance

Answer 16

disturbance that poses substantial interference w/ person’s use and enjoyment of property

must be offensive/obnoxious to an average, reasonable person

Question 17

Public Nuisance

Answer 17

interference with the public’s health or safety

Question 18

Defamation elements

Answer 18

(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) damage to the reputation of the plaintiff.

Question 19

What constitutes Publication element for Defamation

Answer 19

communication to the third person must be made either intentionally or negligently; if it was not reasonably foreseeable that the defamatory statement would be overheard by the sales representative, the fault requirement for the publication element is not satisfied.

Question 20

What is a doctor’s standard of care?

Answer 20

a doctor proposing a course of treatment has a duty to provide patient w/ enough information about its risk to enable patient to make an informed consent to the treatment

Question 21

what is required of a professional?

Answer 21

a professional is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing

Question 22

A product can be the basis for a products liability action when…

Answer 22

it is in a defective condition unreasonably dangerous to users

Question 23

What is a Manufacturing Defect?

Answer 23

When the product as supplied is different than the way it should have been supplied

Question 24

When will a product be deemed defective?

Answer 24

If it was dangerous beyond the expectatio of the ordinary consumer

Question 25

Elements of a products liability action based on strict liability:

Answer 25

1) D is a commercial supplier
2) D produced or sold a product that was defective when it left D’s control
3) Defective product was actual & proximate cause of P’s injury AND
4) P suffered damages to person or property

Question 26

Under UCC, to establish an action based on breach of Implied Warranty of Merchantability, P must show:

Answer 26

1) D is a Merchant who deals in kind of goods sold
2) goods were not fit for ordinary purposes for which goods are sold
3) goods were actual & proximate cause of injury to P AND
4) P suffered economic loss or damages to person or property

Question 27

Summers v Tice unascertainable causes approach:

Answer 27

both D were negligent, but not clear which caused harm, so each was required to show his negligence was not cause of P’s injury

Question 28

Sindell v Abbot Lab Unascertainable causes approach =

Answer 28

same defective drug distributed by all companies, so ct imposed market share damages on D

Question 29

To whom does a products liabiliity action based on strict liability apply?

Answer 29

Any commercial supplier, including a retailer of a defective product

Question 30

Why may retailer be liable for manufacturing or design defect?

Answer 30

b/c it was a Commercial Supplier of a Defective Product, even if it had no opportunity to inspect manufacturer’s product before selling it

Question 31

What is the general standard of care for Children?

Answer 31

Child of like age, education, intelligence & experience

Exception: when child engages in potentially dangerous activity normally undertaken only by adults, child required to conform to same standard of care as adults engaging in the activity = reasonably prudent adult

Question 32

Landowner duty to Anticipated Trespasser =

Answer 32

Duty to warn of or make safe highly dangerous artificial conditions that trespasser is unlikely to discover

Question 33

Attractive Nuisance Doctrine:

Answer 33

1) Dangerous condition present on land which owner is or should be aware
2) Knows or should know young persons frequent vicinity
3) Condition likely to cause injury (child inability to appreciate risk) AND
4) Expense of remedying situation is slight compared w/ magnitude of risk

Question 34

Rule for Rescuer:

Answer 34

As general rule, no duty imposed on person to come to aid of another absent special relationship btw persons.

However, if person gratuitously comes to aid other, the actor must exercise due care in providing assistance, and must not leave person in a worse position than when she found him (not act negligently)

Question 35

Defective product- Strict liability action elements

Answer 35

1) commercial supplier
2) production or sale of defective product unreasonably dangerous to users
3) actual & proximate cause
4) damages

Question 36

A commercial supplier’s potential liability for a defective product extends to…

Answer 36

All foreseeable Plaintiffs

Question 37

Tet for whether a food product is in a defective condition:

Answer 37

Product must be dangerous beyond the expectation of a reasonable consumer

Question 38

Res Ipa Loquitur Doctrine:

Answer 38

Enable P to establish breach of duty just from fact that an injury occurred that would not ordinarily occur unless someone was negligent

Question 39

To establish a prima facie case of False Imprisonment, P must show:

Answer 39

1) An act or omission to act by D that confines or restrains P to bounded area
2) intent on part of D to confine or restrain P AND
3) Causation

Question 40

Actionable confinement encompasses…

Answer 40

the failure to provide a means of Escape when under duty to do so

Question 41

Abnormally Dangerous Activity =

Answer 41

substantial risk of serious harm to person or property even when reasonable care is exercised

activity not matter of common usage in community

(blasting & manufacturing explosives) ( public fireworks - not necessarily)

Question 42

When may a Principal be vicariously liable for tortious acts of an Independent Contractor?

Answer 42

When IC is engaged in “Inherently Dangerous Activities”

Question 43

“Inherently Dangerous Activities” =

Answer 43

Special dangers t others inherent in or normal to activity

does not have to be classified as abnormally dangerous) = (fireworks

Question 44

Duty to exercise reasonable care in any activity =

Answer 44

Conduct should conform to that of a reasonably prudent person engaged in a like activity

Question 45

Actual cause =

Answer 45

But for test

Question 46

Proximate cause =

Answer 46

injury directly foreseeable result of action

Question 47

Comparative Negligence =

Answer 47

Fault apportioned between parties

Question 48

Abnormally dangerous =

Answer 48

A defendant may be held strictly liable for an activity that is deemed abnormally dangerous.

(i) the activity must create 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.

(ex - Fumigating is commonly held to be an abnormally dangerous activity for which strict liability is imposed.)