MBE Torts Flashcards
Battery
- Harmful/offensive contact
- To the person of another
- Causation
- Intent
Single v. Double Intent
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
Assault
- Conduct or other circumstances (more than words)
- Plaintiff has reasonable apprehension and awareness of act or threat
- Imminent threat of harm
- Intent
Intentional Infliction of Emotional Distress
- Intent or Recklessness
- Extreme or Outrageous Conduct (beyond human decency)
- Causation
- 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)
False Imprisonment
- Intent to confine/restrain (physical force, threats, invalid use of legal authority, failure to provide means of escape)
- Confinement
- Victim is conscious of it OR harmed by it
Shopkeeper’s Privilege
Retailers are allowed to reasonably detain suspected shoplifters
Intentional Tort Defenses
Consent Self Defense Defense of Others Defense of Property Parental Discipline Privilege of Arrest
Consent
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
Self Defense
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
Defense of Others
Can use the same logic of self defense in defense of others - doesn’t have to be family anymore
Defense of Property
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
Parental Discipline
Both parents and educators have the privilege of using reasonable force/confinement against a child
Parent can limit educator’s privilege
Privilege of Arrest
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
Trespass to Chattels
- Intentional interference with plaintiff’s right to possession (dispossession or using/intermeddling)
- Only intent to do the act is necessary (transferred intent ok)
- Damages (actual and loss of use; no loss of use absent dispossession)
- Remedy (compensation for diminished value or cost of repair)
Mistake of law or fact about legality is not a defense
Conversion
- Intentional act (only to commit interference, not damage) (transferred intent NO)
- Interference with plaintiff’s right to possession (dominion or control)
- So serious that it deprives plaintiff of the use of the chattel (duration/extent; bad faith; extent of harm/inconvenience considered)
- Damages (full value of property or replevin)
Mistake not a defense
Trespass to Land
- Intent to enter land or cause physical invasion (don’t need to intend to trespass; transferred intent OK)
- Physical invasion
Proper plaintiff: anyone in actual/constructive possession
Private v. Public Necessity
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)
Nuisance
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
Nuisance Defenses
Regulatory Compliance (incomplete) Coming to the Nuisance (may be considered but no actual legal weight)
Abatement for Nuisance
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
Negligence Elements
- Duty
- Breach
- Causation (actual and legal)
- Damages
Foreseeability of Harm
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)
Special Foreseeable Plaintiffs
Rescuers
Fetuses
When there is an affirmative duty to act
Assumption of Duty Placing Another in Peril Contract Authority Relationship (e.g., employer; parent; common carrier) Statute
Special Standards of Care
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
Standards of Care for Landowners
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
Negligence Per Se
- Criminal/Regulatory Statute imposes specific duty
- Defendant fails to perform
- Plaintiff is in the class of people intended to be protected by the statute
- Plaintiff suffers harm of the type the statute is designed to protect against
Negligence Per Se Defenses
Compliance is impossible or more dangerous than noncompliance
Violation was reasonable under the circumstances
Statutory vagueness/ambiguity
Federal preemption
Res Ipsa Loquitur
- Accident is of a kind that does not ordinarily occur absent negligence
- Caused by an agent/instrumentality within the exclusive control of defendant (modern trend to interpret this generously)
- Not due to any action by plaintiff
Loss of Chance
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
Intervening and Superseding Causes
Intervening: do not break chain of causation - foreseeable
Superseding: do break chain of causation - unforeseeable
Negligent acts of others are foreseeable
Eggshell Skull Rule
Extent of damages need not be foreseeable, just the fact that the damages in some form are foreseeable is enough
Collateral Source Rule
Old: benefits from outside sources (i.e. insurance) aren’t credited against defendant liability
Modern: statutes have eliminated or modified this
Negligent Infliction of Emotional Distress - Actual Plaintiff
Plaintiff must have been within the zone of danger and the threat of physical impact caused emotional distress
Physical symptoms required (majority)
Negligent Infliction of Emotional Distress - Third Parties
Bystanders: 1. Closely related to the person injured 2. Present at the scene 3. Personally observed injury Physical symptoms required (majority)
Negligent Infliction of Emotional Distress - Special Cases
Negligent Mishandling of a Corpse
Negligent Medical Information (e.g., misdiagnosis)
No physical symptoms required or threat of impact
Wrongful Life v. Wrongful Birth
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
Vicarious Liability
When a superior is held joint and severally liable along with a tortfeasor
May seek indemnification from the party responsible
Respondeat Superior
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)
Scope of Employment
Detour: minor deviation; yes vicarious liability
Frolic: major deviation; no vicarious liability
Vicarious Liability for Independent Contractors
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
Business Partner Liability
Business partners are liable for torts of other partners committed within the scope of the business’s purpose
Car Owner Liability
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
Parents and Children Liability
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)
Dram Shop Liability
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
Federal Immunity
Federal Tort Claims Act expressly waives immunity for torts
Exceptions: when government maintains immunity with certain enumerated torts, discretionary functions, traditional governmental activities
State/Municipality Immunity
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.)
Government Official Immunity
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
Negligence Defenses
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)
Exculpatory Clauses Aren’t Enforceable if:
- Disclaims liability for reckless/wanton misconduct or gross negligence;
- Gross disparity of bargaining power;
- Services are of great importance or practical necessity to the public;
- Typical contractual defenses apply; or
- Against public policy
Generally common carriers, innkeepers, and employers can’t disclaim liability for negligence
Strict Liability Elements
- Absolute duty to make plaintiff’s person or property safe
- Actual and proximate causation
- Damages
Strict Liability Actions
Dangerous Activities
Wild Animals (or abnormally dangerous domesticated animals)
Defective/Dangerous Products
Strict Liability Defenses
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
Products Liability: Negligence
Failure to exercise reasonable care in inspection/sale
All other negligence elements apply
Products Liability: Strict Liability
- Product was defective
- Defect existed when it left defendant’s control
- 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)
Types of Defects
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
Learned-Intermediary Rule
Manufacturer of drugs/medical devices typically satisfy the duty to warn by telling prescribing physicians about problems unless:
- Manufacturer knows it will be dispensed without personal evaluation of a healthcare provider, or
- Birth Control
Market Share Liability
For fungible defective products produced by multiple manufacturers, a jury can apportion damages based on the manufacturer’s market share
Products Liability Defenses
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
Defamation
Defendant:
- Made a defamatory statement
- Of or concerning plaintiff
- Published to a third party who understood its defamatory nature (internet service providers/platforms not publishers under federal law)
- Result was damage to plaintiff reputation
Defamation of Public v. Private Figures
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
Libel
Written, printed, or otherwise recorded in permanent form
General damages ok
Slander
Spoken word, gesture, or any form other than libel
Special damages required
Slander Per Se
No special damages required if:
Commission of a serious crime
Unfitness for a trade or profession
Having a loathsome disease
Severe sexual misconduct
Defamation Defenses
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
Invasion of Privacy
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
Intrusion Upon Seclusion
Defendant intrudes upon plaintiff’s private affairs in a manner that is objectionable to a reasonable person
False Light
Defendant:
- Makes public facts about the plaintiff
- Placing the plaintiff in a false light
- Which would be highly offensive to a reasonable person
Appropriation of the Right to Publicity
- Appropriates another’s name or likeness
- For defendant’s advantage
- Without consent
- Causes injury
Public Disclosure of Private Facts
- Defendant publicizes a matter concerning the private life of another; and
- The matter is highly offensive to a reasonable person AND is not of legitimate concern to the public
Invasion of Privacy Defenses
Qualified and Absolute Privilege (only applicable to false light and public disclosure)
Consent: for invasion of privacy
Truth: NOT a defense unlike defamation
Intentional Misrepresentation
- False representation of material fact
- Scienter (knowledge or reckless disregard for truth)
- Intent to induce plaintiff to act in reliance
- Causes actual reliance
- Reliance was justified
- Damages (actual economic loss/consequential; no nominal; no emotional distress)
Negligent Misrepresentation
- Defendant provides false information to plaintiff as a result of negligence in the course of their business
- Plaintiff justifiably relies on it and incurs pecuniary damages
- Contractual relationship must exist or defendant knows plaintiff is a member of a limited group for whose benefit the information is given
- Defendant must intend to influence or knows the recipient intends to rely on the information
- Damages (reliance and consequential)
Intentional Interference with Business Relations - Types
Intentional Interference with Contract
Interference with Prospective Economic Advantage (no contract)
Theft of Trade Secrets
Intentional Interference with Contract
- Defendant knew of valid contractual relationship between plaintiff and third party
- Intentionally interfered with the contract that substantially exceeds fair competition
- Breach results
- Plaintiff suffered damages
Defenses: motivated by health, safety, or morals; contract is terminable at will; defendant is a business competitor
Interference with Prospective Economic Advantage
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
Theft of Trade Secrets
- Plaintiff owns a valid trade secret (providing a business advantage)
- Not generally known
- Took reasonable precautions to protect
- Defendant took the secret by improper means
Injurious Falsehoods
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
Wrongful Use of the Legal System
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
Attractive Nuisance
(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.”
