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Bar Exam > MBE Torts > Flashcards

MBE Torts Flashcards

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1
Q

Battery

A
  1. Harmful/offensive contact
  2. To the person of another
  3. Causation
  4. Intent
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2
Q

Single v. Double Intent

A

Single Intent (Majority): Defendant liable if intended to contact, even if contact wasn’t intended to be harmful or offensive

Dual Intent (Minority): Defendant must intend contact be harmful or offensive

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3
Q

Assault

A
  1. Conduct or other circumstances (more than words)
  2. Plaintiff has reasonable apprehension and awareness of act or threat
  3. Imminent threat of harm
  4. Intent
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4
Q

Intentional Infliction of Emotional Distress

A
  1. Intent or Recklessness
  2. Extreme or Outrageous Conduct (beyond human decency)
  3. Causation
  4. Damages (reasonable unless defendant knows of sensitivity)

Transferred Intent:
NO if intending a different intentional tort
MAYBE if intending IIED on another person

Public Figures/Concerns require falsity and actual malice; public concern means no recovery

Third Party Victims must be immediate family (don’t need bodily injury) or bystanders (need bodily injury)

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5
Q

False Imprisonment

A
  1. Intent to confine/restrain (physical force, threats, invalid use of legal authority, failure to provide means of escape)
  2. Confinement
  3. Victim is conscious of it OR harmed by it
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6
Q

Shopkeeper’s Privilege

A

Retailers are allowed to reasonably detain suspected shoplifters

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7
Q

Intentional Tort Defenses

A 
Consent
Self Defense
Defense of Others
Defense of Property
Parental Discipline
Privilege of Arrest
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8
Q

Consent

A

Express (invalid if duress, fraud as to essential matter, mistakes caused by defendant)

Implied: custom/usage, emergency situations, consensual combat/sports

Incapacity may negate consent

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9
Q

Self Defense

A

Must use reasonable force proportionate to the anticipated harm (deadly force only ok if reasonable belief of serious bodily injury/death)

Reasonable mistake does not invalidate

No duty to retreat (majority)

Initial aggressors generally not allowed unless the other person escalated it or they walked away

Not liable for bystander injuries so long as they weren’t negligent and it was accidental

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10
Q

Defense of Others

A

Can use the same logic of self defense in defense of others - doesn’t have to be family anymore

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11
Q

Defense of Property

A

Deadly force is never allowed to defend property

Can usually use reasonable force to prevent trespass but not if its by necessity

Can use reasonable force to reclaim personal property wrongfully taken

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12
Q

Parental Discipline

A

Both parents and educators have the privilege of using reasonable force/confinement against a child

Parent can limit educator’s privilege

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13
Q

Privilege of Arrest

A

Private: can if felony was actually committed and it was reasonable to suspect the person committed it; misdemeanor only if breach of the peace and in presence

Police: can if reasonable to believe felony was committed/suspect (no tort liability for mistake as to commission); misdemeanors must be committed in the presence of the officer

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14
Q

Trespass to Chattels

A
  1. Intentional interference with plaintiff’s right to possession (dispossession or using/intermeddling)
  2. Only intent to do the act is necessary (transferred intent ok)
  3. Damages (actual and loss of use; no loss of use absent dispossession)
  4. Remedy (compensation for diminished value or cost of repair)

Mistake of law or fact about legality is not a defense

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15
Q

Conversion

A
  1. Intentional act (only to commit interference, not damage) (transferred intent NO)
  2. Interference with plaintiff’s right to possession (dominion or control)
  3. So serious that it deprives plaintiff of the use of the chattel (duration/extent; bad faith; extent of harm/inconvenience considered)
  4. Damages (full value of property or replevin)

Mistake not a defense

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16
Q

Trespass to Land

A
  1. Intent to enter land or cause physical invasion (don’t need to intend to trespass; transferred intent OK)
  2. Physical invasion

Proper plaintiff: anyone in actual/constructive possession

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17
Q

Private v. Public Necessity

A

Private: qualified privilege to go onto land to protect themselves/property from serious harm (not liable for trespass but must pay damages)

Public: absolute privilege to avert imminent disaster (not liable for damages if reasonably believed in necessity even if not actually necessary)

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18
Q

Nuisance

A

Private: substantial and unreasonable interference with another’s use or enjoyment their land (only to a reasonable person)

Public: unreasonable interference with a right common to the general public - must suffer a harm different in kind from the general public

Remedies can be damages or injunction based on a balance of the equities

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19
Q

Nuisance Defenses

A 
Regulatory Compliance (incomplete)
Coming to the Nuisance (may be considered but no actual legal weight)
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20
Q

Abatement for Nuisance

A

Private: reasonable force is ok but defendant must be given notice and refused to act

Public: absent unique injury, only can be abated by public authority

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21
Q

Negligence Elements

A
  1. Duty
  2. Breach
  3. Causation (actual and legal)
  4. Damages
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22
Q

Foreseeability of Harm

A

Cardozo: defendants only liable to plaintiffs within he zone of foreseeable harm (majority)

Andrews: if defendant can foresee harm to anyone from negligence, they owe a duty to everyone harmed (minority)

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23
Q

Special Foreseeable Plaintiffs

A

Rescuers

Fetuses

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24
Q

When there is an affirmative duty to act

A 
Assumption of Duty
Placing Another in Peril
Contract
Authority
Relationship (e.g., employer; parent; common carrier)
Statute
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25
Q

Special Standards of Care

A

Common Carriers: highest duty

Innkeepers: ordinary negligence (majority) (now, used to be higher)

Drivers: ordinary care (majority) refrain from willful misconduct (minority) absent Guest Statute

Bailors: Gratuitous - duty to warn of known dangerous defects; Compensated - duty to warn of defects known or should have known with reasonable diligence

Sellers of Real Property: disclose known, concealed, unreasonably dangerous conditions

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26
Q

Standards of Care for Landowners

A

Trespassers:
Discovered - warn against concealed, dangerous, artificial conditions;
Undiscovered - generally no duty unless should reasonably know they’re entering

Invitee: reasonable care to inspect, discover dangers, protect (non-delegable)

Licensee: warn of concealed dangers known or obvious; no duty to inspect

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27
Q

Negligence Per Se

A
  1. Criminal/Regulatory Statute imposes specific duty
  2. Defendant fails to perform
  3. Plaintiff is in the class of people intended to be protected by the statute
  4. Plaintiff suffers harm of the type the statute is designed to protect against
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28
Q

Negligence Per Se Defenses

A

Compliance is impossible or more dangerous than noncompliance
Violation was reasonable under the circumstances
Statutory vagueness/ambiguity
Federal preemption

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29
Q

Res Ipsa Loquitur

A
  1. Accident is of a kind that does not ordinarily occur absent negligence
  2. Caused by an agent/instrumentality within the exclusive control of defendant (modern trend to interpret this generously)
  3. Not due to any action by plaintiff
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30
Q

Loss of Chance

A

If plaintiff’s recovery was greater than 50% before defendant’s negligence, they can recover a percentage of the total damages equal to the difference between the chances before and after

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31
Q

Intervening and Superseding Causes

A

Intervening: do not break chain of causation - foreseeable
Superseding: do break chain of causation - unforeseeable

Negligent acts of others are foreseeable

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32
Q

Eggshell Skull Rule

A

Extent of damages need not be foreseeable, just the fact that the damages in some form are foreseeable is enough

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33
Q

Collateral Source Rule

A

Old: benefits from outside sources (i.e. insurance) aren’t credited against defendant liability
Modern: statutes have eliminated or modified this

34
Q

Negligent Infliction of Emotional Distress - Actual Plaintiff

A

Plaintiff must have been within the zone of danger and the threat of physical impact caused emotional distress
Physical symptoms required (majority)

35
Q

Negligent Infliction of Emotional Distress - Third Parties

A 
Bystanders: 
1. Closely related to the person injured 
2. Present at the scene
3. Personally observed injury
Physical symptoms required (majority)
36
Q

Negligent Infliction of Emotional Distress - Special Cases

A

Negligent Mishandling of a Corpse
Negligent Medical Information (e.g., misdiagnosis)
No physical symptoms required or threat of impact

37
Q

Wrongful Life v. Wrongful Birth

A

Wrongful Life: action by child for being born; usually not allowed

Wrongful Birth: action by parent for having to have kid; usually can recover if disabled child

38
Q

Vicarious Liability

A

When a superior is held joint and severally liable along with a tortfeasor

May seek indemnification from the party responsible

39
Q

Respondeat Superior

A

Employers are held vicariously liable for employee negligence within the scope of employment

Can also be directly negligent in hiring the employee

Generally not liable for intentional torts unless within the scope of employment when force is inherent in employee’s work (think bouncers)

40
Q

Scope of Employment

A

Detour: minor deviation; yes vicarious liability
Frolic: major deviation; no vicarious liability

41
Q

Vicarious Liability for Independent Contractors

A

Generally no unless the employer retains a right of control over how they do the work

Always responsible for non-delegable duties (inherently dangerous, duties to the public, duties to keep shop areas safe)

Apparent agency: if plaintiff accepted the independent contractor’s services on reasonable belief they were an employee (manifested by employer) and the negligence is the factual cause of harm/within the scope of liability

42
Q

Business Partner Liability

A

Business partners are liable for torts of other partners committed within the scope of the business’s purpose

43
Q

Car Owner Liability

A

Negligent Entrustment: direct liability for negligently entrusting a vehicle to someone not in a position to care for it

Family Purpose Doctrine: owner may be vicariously liable for tortious acts of any family member driving the car with permission

Owner Liability Statutes: may be vicariously liable for torts of anyone driving car with permission

44
Q

Parents and Children Liability

A

Parents generally not vicariously liable for minor children torts

Can be liable for own negligence (negligent supervision) if: (i) can control the child (ii) knows or should know the necessity to do so (child’s propensities)

45
Q

Dram Shop Liability

A

Bars and even social hosts liable for injuries caused when people drink too much and injure others

Does not free the actual tortfeasor from liability

46
Q

Federal Immunity

A

Federal Tort Claims Act expressly waives immunity for torts

Exceptions: when government maintains immunity with certain enumerated torts, discretionary functions, traditional governmental activities

47
Q

State/Municipality Immunity

A

Most states have waived to some extent

Immunity typically applies with governmental functions (where the government is the only player) but is often waived in proprietary functions (private party involved like utilities etc.)

48
Q

Government Official Immunity

A

Yes: discretionary functions
No: ministerial functions

Westfall Act: no personal liability for federal employees under state tort law

Absolute immunity: legislators in legislative functions; judges in judicial functions; prosecutors

49
Q

Negligence Defenses

A

Contributory Fault (complete bar)

Comparative Fault

  • Pure (reduced in proportion)
  • Partial (barred if more than defendants combined; reduced in proportion if less)

Assumption of Risk: unreasonably proceeding in the face of known, specific risk (no recovery contributory; reduced recovery comparative)

50
Q

Exculpatory Clauses Aren’t Enforceable if:

A
  1. Disclaims liability for reckless/wanton misconduct or gross negligence;
  2. Gross disparity of bargaining power;
  3. Services are of great importance or practical necessity to the public;
  4. Typical contractual defenses apply; or
  5. Against public policy

Generally common carriers, innkeepers, and employers can’t disclaim liability for negligence

51
Q

Strict Liability Elements

A
  1. Absolute duty to make plaintiff’s person or property safe
  2. Actual and proximate causation
  3. Damages
52
Q

Strict Liability Actions

A

Dangerous Activities
Wild Animals (or abnormally dangerous domesticated animals)
Defective/Dangerous Products

53
Q

Strict Liability Defenses

A

Contributory Negligence - NO
Comparative Fault: courts divided in whether to reduce recovery
Assumption of Risk: bars recovery
Statutory Privilege: no strict liability for performing essential public services
Trespassers getting hurt by animals may work

54
Q

Products Liability: Negligence

A

Failure to exercise reasonable care in inspection/sale

All other negligence elements apply

55
Q

Products Liability: Strict Liability

A
  1. Product was defective
  2. Defect existed when it left defendant’s control
  3. Defect caused plaintiff’s injury when used in a reasonably foreseeable way

Plaintiff need not be in privity - only foreseeable

Defendants can be any commercial seller who had it in their possession (manufacturer, distributer, retail seller)

56
Q

Types of Defects

A

Manufacturing: product does not conform to defendant’s own specifications

Design: 2 tests

  • Consumer Expectation: dangerous beyond expectation of ordinary customer
  • Risk Utility: risks > benefits and a feasible alternate design is available that is safer

Failure to Warn: (i) foreseeable risk of harm (ii) not obvious to ordinary user (iii) could have been reduced/avoided with reasonable instructions

57
Q

Learned-Intermediary Rule

A

Manufacturer of drugs/medical devices typically satisfy the duty to warn by telling prescribing physicians about problems unless:

  1. Manufacturer knows it will be dispensed without personal evaluation of a healthcare provider, or
  2. Birth Control
58
Q

Market Share Liability

A

For fungible defective products produced by multiple manufacturers, a jury can apportion damages based on the manufacturer’s market share

59
Q

Products Liability Defenses

A

Comparative fault/contributory negligence (unless misuse is foreseeable)

Assumption of Risk: complete bar in contributory jurisdictions; reduction in comparative

Unforeseeable misuse (can preclude or reduce)

Compliance with governmental standards (not conclusive but helpful)

State of the Art Standard: complies with standards feasible at the time

Statute of Limitations: runs when the injury is/should be discovered

Unforeseeable intervening causes

60
Q

Defamation

A

Defendant:

  1. Made a defamatory statement
  2. Of or concerning plaintiff
  3. Published to a third party who understood its defamatory nature (internet service providers/platforms not publishers under federal law)
  4. Result was damage to plaintiff reputation
61
Q

Defamation of Public v. Private Figures

A

Truth:
Public Figure or Pubic Concern: must prove defamatory statement is false;
Private Figure and Private Concern: need not prove falsity; must show at least negligence

Fault
Public Figure: actual malice
Private Figure Public Concern: acted with fault (negligence or actual malice)
Private Figure Private Concern: usually at least negligence

62
Q

Libel

A

Written, printed, or otherwise recorded in permanent form

General damages ok

63
Q

Slander

A

Spoken word, gesture, or any form other than libel

Special damages required

64
Q

Slander Per Se

A

No special damages required if:

Commission of a serious crime
Unfitness for a trade or profession
Having a loathsome disease
Severe sexual misconduct

65
Q

Defamation Defenses

A

Truth (complete)

Consent (can’t exceed scope)

Absolute Privilege: (i) during legislative/judicial proceedings; (ii) by legislators/executive officials in official duties; (iii) spouses; (iv) required publications

Qualified Privilege: important public interest, in defendant’s interest or third party - lost if abused

66
Q

Invasion of Privacy

A 
I FLAP
Intrusion Upon Seclusion
False Light
Appropriation of the Right to Publicity
Public Disclosure of Private Facts

Applies only to individuals, terminates at death

Special damages not required

67
Q

Intrusion Upon Seclusion

A

Defendant intrudes upon plaintiff’s private affairs in a manner that is objectionable to a reasonable person

68
Q

False Light

A

Defendant:

  1. Makes public facts about the plaintiff
  2. Placing the plaintiff in a false light
  3. Which would be highly offensive to a reasonable person
69
Q

Appropriation of the Right to Publicity

A
  1. Appropriates another’s name or likeness
  2. For defendant’s advantage
  3. Without consent
  4. Causes injury
70
Q

Public Disclosure of Private Facts

A
  1. Defendant publicizes a matter concerning the private life of another; and
  2. The matter is highly offensive to a reasonable person AND is not of legitimate concern to the public
71
Q

Invasion of Privacy Defenses

A

Qualified and Absolute Privilege (only applicable to false light and public disclosure)

Consent: for invasion of privacy

Truth: NOT a defense unlike defamation

72
Q

Intentional Misrepresentation

A
  1. False representation of material fact
  2. Scienter (knowledge or reckless disregard for truth)
  3. Intent to induce plaintiff to act in reliance
  4. Causes actual reliance
  5. Reliance was justified
  6. Damages (actual economic loss/consequential; no nominal; no emotional distress)
73
Q

Negligent Misrepresentation

A
  1. Defendant provides false information to plaintiff as a result of negligence in the course of their business
  2. Plaintiff justifiably relies on it and incurs pecuniary damages
  3. Contractual relationship must exist or defendant knows plaintiff is a member of a limited group for whose benefit the information is given
  4. Defendant must intend to influence or knows the recipient intends to rely on the information
  5. Damages (reliance and consequential)
74
Q

Intentional Interference with Business Relations - Types

A

Intentional Interference with Contract
Interference with Prospective Economic Advantage (no contract)
Theft of Trade Secrets

75
Q

Intentional Interference with Contract

A
  1. Defendant knew of valid contractual relationship between plaintiff and third party
  2. Intentionally interfered with the contract that substantially exceeds fair competition
  3. Breach results
  4. Plaintiff suffered damages

Defenses: motivated by health, safety, or morals; contract is terminable at will; defendant is a business competitor

76
Q

Interference with Prospective Economic Advantage

A

More egregious conduct required for liability than intentional interference with contract

Should be independently tortious, violates the law, conduct found improper using balancing analysis

Business competitors aren’t liable for encouraging someone to switch

77
Q

Theft of Trade Secrets

A
  1. Plaintiff owns a valid trade secret (providing a business advantage)
  2. Not generally known
  3. Took reasonable precautions to protect
  4. Defendant took the secret by improper means
78
Q

Injurious Falsehoods

A

Trade Libel: malicious publication of derogatory statements relating to plaintiff’s title to business or quality of products; damages business relationships; special damages required

Slander of Title: publication of false derogatory statement to plaintiff’s title to real property; malice and special damages required

79
Q

Wrongful Use of the Legal System

A

Malicious Prosecution: intentional and malicious use of a legal proceeding for an improper purpose, no probable cause, action dismissed in favor of the defendant (damages can be legal expenses, lost work time, reputation, emotional distress); judges/prosecutors absolutely immune

Abuse of Process: use of legal process against a plaintiff in a wrongful manner to accomplish a purpose other than that for which it was initiated; must be willful; proof of damages required

80
Q

Attractive Nuisance

A

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

“(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

“(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

“(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved and

“(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”

Bar Exam (9 decks)

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