MBE Torts Flashcards
Re Transferred Intent
An assault occurs when the defendant’s intentional overt act causes the plaintiff to experience reasonable apprehension of an imminent battery. The act must be volitional and performed with intent to place someone in apprehension of imminent harm or offensive contact. The doctrine of transferred intent applies to the tort of assault. Here, although the student startled the woman, who was reasonably frightened by the student’s actions, the student lacked tortious intent. Had the student intended to assault or commit battery against another person, the doctrine of transferred intent would have applied, but the facts do not suggest that the student had any intent to commit any sort of tort, and was merely playing a game of tag with a friend.
if q asks “under a negligence theory”….
DON’T ANSWER SL!!!
Indemnification
Indemnification is the shifting of the entire loss from one joint tortfeasor to another party. Indemnification generally applies when one tortfeasor is vicariously liable for the other’s wrongdoing. As the flaw in the product was due to its design, for which the engineer was responsible, the toy company will be able to recover from the engineer.
Airplane harming person on ground
. While owners of airplanes used to be strictly liable for damages caused by the airplanes, the modern trend is to apply negligence law to accidents in which objects falling from the airplane or the airplane itself harms persons or objects on the ground. The owner of the airplane had a duty to keep his airplane in good repair; here, the fact that he had not inspected the airplane for two years is evidence that he was negligent in operating and maintaining the aircraft.
Negligent misrepresntation
DIFFERENT CHARACTER exception. o prove negligent misrepresentation, the plaintiff must show that it justifiably relied on the false information provided to it, which was based on the defendant’s negligence. If the plaintiff is a third party, however, it must show that the defendant knew the plaintiff was a member of the limited group for whose benefit the information was supplied. Here, although the elements of negligent misrepresentation are otherwise met, the accountant is not liable if the third party’s use of the information is of a different character than the use for which the accountant provided the information. That is the case here because the accountant’s opinion was prepared to aid the supplier in determining whether to sell goods to the retail company rather than to purchase the company.
Airplane harming person on ground
. While owners of airplanes used to be strictly liable for damages caused by the airplanes, the modern trend is to apply negligence law to accidents in which objects falling from the airplane or the airplane itself harms persons or objects on the ground. The owner of the airplane had a duty to keep his airplane in good repair; here, the fact that he had not inspected the airplane for two years is evidence that he was negligent in operating and maintaining the aircraft.
Negligent misrepresntation
DIFFERENT CHARACTER exception. o prove negligent misrepresentation, the plaintiff must show that it justifiably relied on the false information provided to it, which was based on the defendant’s negligence. If the plaintiff is a third party, however, it must show that the defendant knew the plaintiff was a member of the limited group for whose benefit the information was supplied. Here, although the elements of negligent misrepresentation are otherwise met, the accountant is not liable if the third party’s use of the information is of a different character than the use for which the accountant provided the information. That is the case here because the accountant’s opinion was prepared to aid the supplier in determining whether to sell goods to the retail company rather than to purchase the company.
NB: Read carefully
A smoker and a nonsmoker were seated at adjoining tables in a small restaurant. The smoker’s table was in the smoking section, and the nonsmoker’s table was in the nonsmoking section. When the smoker lit a cigarette, the nonsmoker politely requested that he not smoke, explaining that she had a severe allergy to cigarette smoke. The smoker ignored the nonsmoker’s request and continued to smoke. As a result, the nonsmoker was hospitalized with a severe allergic reaction to the smoke.
The nonsmoker brought a battery action against the smoker.
Which of the following questions will NOT be an issue in the battery action?
A. Did the smoker intend to cause the nonsmoker’s contact with the cigarette smoke?
B. Does smoke have the physical properties necessary for making the kind of contact required for battery?
C. Is contact with cigarette smoke from a lawful smoking section in a restaurant the kind of contact one must endure as a voluntary restaurant patron?
D. Was the smoker’s conduct unreasonable under the circumstances?
this type of question asks about the ELEMENTS!
